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Ordinance No. 11,554ORDINANCE' NO. 11,554 AN ORDINANCE" OF TI-11" CITY COUNCIL OF THE CITY 01" BAY'roWN, TEXAS, At.]THORIZING THE KFERIM CITY MANAGLIR TO EXECuTE AND THE CITY CLERK TO AT"FESTTO A C( I )ST SHARE AGREF.Aff"NT WITI I LISA SELF STORAGE, INC- l"OR UP SLING) AN 8-INCI-I WAJ'ER LINF'TO A 10-INCI-I WMTR LINE FOR THE 10-INC1111 WATER LINE NEAR 1223 1171AST F'REL ' WAY PROJI"C"L; MAKING UFFIER PROVISIONS RELAT"I'D THER.F"TO; AND PR0VIDfNG FOR THE EFf'ECTINIE DATI-' THEREOF 13E IT ORDAINED BY 'FI-11"' CITY COUNCIL OF T11E CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City ofBaytown, Texas, hereby authorizes the Interfin City Manager to execute and the City C , lerk to attest to a cost share agreernem with USA Self Storage, Inc,, for up-sizing an 8-inch watcr line to a 10-inch water line For the 10: - Inch Water Line Near 1223 East Freeway Protect, A copy of said agreement is attached hereto as Exhibit -A," and incorporated herein for all iments and purposes. Section 2: This ordiriance shall take of t'ect immediately from and after its passage by the City Council of the City ol"Baytown. INTRODUCED, RE"'Al.) and PASSE'D by the affirmative'vote c the City Council of the City ot'Baylown this the 27"' day oflanuary, 2011, / 11 A 11 1 LE, F CIA '13R SCH, Cit� S DONCARLOS, Mayor ACAO RAMIkEZ, SR.:,fAt1or11cy I I Vanw��oy &PQ Exhibit "A" WATER LINE UPSIZING AGREEMENT THE STATE OF TEXAS COUNTY OF HARRIS This Waterline Upsizing Agreement (the "Agreement") is made and entered into between the CITY OF BAYTOWN, a municipal corporation located in Hams and Chambers Counties, Texas (the "CITY "), whose address for purposes hereof is P.O. Box 424, Baytown, Texas 77522, and USA SELF STORAGE, INC., a Texas corporation ( "DEVELOPER "), whose address for purposes hereof is P.O. Box 973, Seabrook, Texas 77586. WITNESSETH: I. 1.1 Waterline Upsizing Project. Subject to and upon the terms, provisions and conditions hereinafter set forth, the parties hereto agree that CITY will increase the diameter of the waterline to be constructed by DEVELOPER along the north feeder road of I -10 from its intersection with Spur 330 to its intersection with Crosby Lynchburg Road from an eight - inch line to a ten -inch line (the "Project "). 11. 2.1 DEVELOPER's Obligations. In addition to DEVELOPER's obligations elsewhere in this Agreement, DEVELOPER shall have the following obligations: (a) DEVELOPER agrees that it will at its own cost and expense employ one or more professional engineers to design the Project. (b) DEVELOPER agrees to comply with all laws, rules or regulations of applicable governmental authorities, in order to make the lines described herein above meet or exceed the quality standards set by such applicable governmental authorities. (c) DEVELOPER shall be obligated to submit plans and specifications for the construction of the Project (the "Plans and Specifications ") to the City Engineer, for approval and/or for required revision and approval by the City Engineer, within ten (10) days after the Effective Date of this Agreement, if it has not already done so at the time of execution of this Agreement. DEVELOPER agrees that the plans and specifications shall include the construction and installation of both an eight -inch (8 ") diameter and a ten -inch (10 ") diameter water line together with related improvements. (d) Within ten (10) days after the City Engineer's final approval of the Plans and Specifications submitted by DEVELOPER in accordance with Section 2.1.c, Water tine U tin •izing Agreement. Page 1 DEVELOPER shall deposit with the CITY cash in the amount of the engineer's estimate of the construction of the eight -inch water line. The Parties understand and agree that this amount is merely a deposit which is subject to adjustment once bid prices have been received. (e) If the amount deposited with the CITY pursuant to Section 2(d) is less than the bid of the lowest responsible bidder received for the eight -inch (8 ") line, DEVELOPER shall tender to the CITY the difference between such bid and the deposit within ten (10) days of receipt of an invoice therefor from the CITY. if the total amount tendered to the City is more than the bid received for the eight - inch (8'1 line, the CITY shall refund such excess funds within thirty (30) days after the award of the construction contract. The parties understand and agree that no contract will be let until DEVELOPER has deposited the monies required herein with the CITY. (f) The legal title to the Project and all appurtenances related thereto shall at all times be vested in the CITY; and DEVELOPER shall have no claim thereto. As such, DEVELOPER shall have no right or privilege to remove or interfere with any part or portion of the Project during or after construction. (g) At its own cost and expense, DEVELOPER shall repair or replace any damage or injury done to any portion of the Project caused by DEVELOPER, its officers, agents, employees, invitees or visitors within ten (10) days of the date on which damage or injury occurred. If the City Manager of the City of Baytown (the "City Manager") in his sole discretion, determines that any portion of the Project is not being repaired and/or replaced in accordance with this Agreement, the City Manager shall so notify DEVELOPER in writing and require DEVELOPER to perform the identified work forthwith and continue diligently therewith until completion. if more than ten days (10) are required to complete the repair or replacement, then the CITY may, at its option, extend such period. If the condition persists after the expiration of ten (10) days from the date of the notice or, if applicable, from the expiration of any extension granted, the City Manager may declare DEVELOPER in default and terminate this Agreement and seek any other appropriate remedy which may be available to the CITY, including, but not limited to, making such repairs or replacements at DEVELOPER's sole cost and expense. It is understood if such repairs or replacements are made by the CITY, DEVELOPER agrees to pay the cost thereof to the CITY on demand. 2.2 CITY's Obligations. In addition to the CITY's obligations elsewhere in this Agreement, the CITY shall have the following obligations: (a) After the City Engineer's final approval of the plans and specifications submitted by the DEVELOPER in accordance with Section 2.1.c and after receipt of the deposit required by Section 2.1.d, the CITY shall be obligated to advertise for bids for the construction of an eight -inch (8 ") line and a ten -inch (10 ") line over the length of the Project in accordance with all applicable laws. After any Water tine Upsizing Agreement. Page 2 additional required sums are paid by DEVELOPER pursuant to Section 2.1.e, the CITY will award the construction of the Project to the lowest responsible bidder. Thereafter, the CITY's contractor will begin the construction of the Project in accordance with the approved plans and specifications and continue such construction efforts thereafter in a diligent manner until the Project is completed and accepted by the CITY. (b) Upon request, the CITY shall provide an update on the status of the Project to the DEVELOPER. (c) After the receipt of the funds by the CITY that are required to be tendered by the DEVELOPER herein, the CITY shall pay all costs and expenses of Project construction, including, not by way of limitation, the costs of all materials, labor and electricity used in connection with such construction and all license, permit or inspection fees that may be charged in connection with such work. (d) The legal title to the Project and all appurtenances related thereto shall at all times be vested in the CITY; and the DEVELOPER shall have no claim thereto. As such, the DEVELOPER shall have no right or privilege to remove or interfere with any part or portion of the Project. III. 3.1 Ten-n. Subject to and upon the terms and conditions set forth herein, this Agreement shall continue in force and effect from the Effective Date (as hereafter defined) until the final completion and acceptance of the Project by the CITY. IV. 4.1 Non- Waiver. Failure of the CITY to declare any default immediately upon occurrence thereof, or delay in taking action in connection therewith, shall not waive such default, but the CITY shall have the right to declare any such default at any time and take such action as might be lawful or authorized hereunder, either in law or in equity. 4.2 Default by DEVELOPER. The CITY shall have the right to declare DEVELOPER in default and immediately terminate the Agreement without notice, unless otherwise specified herein, or exercise any other rights or remedies available hereunder or as a matter of law if DEVELOPER: (a) Defaults in the timely performance of any obligation imposed upon DEVELOPER hereunder and does not cure the default within fifteen (15) days (unless another period of time is specified herein) after written notice describing the default in reasonable detail has been given DEVELOPER or, if the City Manager in his sole discretion, determines that the default cannot reasonably be cured within the fifteen (15) day period, if DEVELOPER does not commence Water Line U sizing Am ment. Page 3 curative work within the fifteen (15) day period and prosecute the work to completion with diligence; (b) Institutes proceedings, whether voluntary or otherwise, under the provisions of the Federal Bankruptcy Act or any other federal or state law relating to bankruptcy or insolvency; or (c) Makes any assignment of this Agreement without the written approval of the CITY. Should the CITY terminate this Agreement for cause, the CITY will be relieved of its obligations hereunder and DEVELOPER shall not be entitled to any reimbursement of the costs incurred associated with the Project pursuant to Section 2.2.a. Additionally, should this Agreement be terminated, the CITY shall be entitled to seek all other relief which may be allowed by law. Any and all defaults declared by the CITY shall be final and binding upon DEVELOPER. 4.3 Remedies Cumulative. All rights and remedies of the CITY and/or DEVELOPER under this Agreement shall be cumulative and none shall exclude any other rights or remedies allowed by law. 4.4 Amendments. This Agreement may not be altered, changed or amended, except by an instrument in writing, signed by both parties hereto. 4.5 Release. By this Agreement, the CITY does not consent to litigation or suit, and the CITY hereby expressly revokes any consent to litigation that it may have granted by the terns of this Agreement or any other contract or agreement, any charter, or applicable state law. Nothing contained herein shall be construed in any way so as to waive in whole or part the CITY's sovereign immunity. DEVELOPER assumes full responsibility for its obligations under this Agreement performed hereunder and hereby releases, relinquishes, discharges, and holds harmless the CITY, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether they be either of the parties hereto, their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto, their employees, or other third parties) that is caused by or alleged to be caused by, arising out of, or in connection with DEVELOPER's work to be performed hereunder. This release shall apply with respect to DEVELOPER's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 4.6 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the CITY and DEVELOPER hereby agree that no claim or dispute between the CITY and DEVELOPER arising out of or relating to this Agreement shall be decided by any arbitration proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1 -14), or any applicable State arbitration statute, including, but not limited to, the Texas General Arbitration Act, provided that in the event Water Line Upsizing Aumment. Page 4 that the CITY is subjected to an arbitration proceeding notwithstanding this provision, DEVELOPER consents to be joined in the arbitration proceeding if DEVELOPER's presence is required or requested by the CITY for complete relief to be recorded in the arbitration proceeding. 4.7 Assignment. DEVELOPER shall not assign this Agreement without first obtaining the written consent of the CITY. 4.8 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand- delivery, addressed to the respective parties as follows: CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 DEVELOPER USA Self Storage, Inc. P.O. Box 973 Seabrook, Texas 77585 4.9 Binding Effect. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of the CITY and DEVELOPER and their respective successors and assigns. 4.10 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal, state and local laws and regulations, and all judicial determinations relative thereto. 4.11 Choice of Law and Venue. This Agreement is declared to be a Texas contract, and all of the terms thereof shall be construed according to the laws of the State of Texas. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. 4.12 Ambiggifies. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 4.13 Complete Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which arc not fully expressed herein. Water Line UAsizina Agreement. Page 5 9 08ed luaUMM8V !z! n— !'t Ja gM xloo f4t3 `dZ2 yo yloi I.3'I :.LS3.uv taSEUew f4!D `XZ)V9WnHH 'D IgOSMIIVD :Aa MMOJAVG dO JUI0 '(..algid 0ntl3a,133„ a41) 01OZ ` jo Aep 241 stgl NO Q3.LnO3X3 •sluosaldai agsraq fired aql putq o1 pue luawaatSd snp alnoaxa of (4uotpnu lin3 DAeq staotljo gons legs uuguoo Aqo ioq Clued goea jo jlegaq uo luawaaAy snp Su -AT—jo 'b u g� luawaau$tor stgl3v suogtpuoo pue suual aql Aq punoq oq 01 pualui pue puelsiapun `peas aneq Amp imp o2palmou3loe satl.ted oU •pe221 luaw y g 1 •t, •fCltpgenut gons Auu oltdsop suotluod Sututuwau gons paloeua anuq P1nom Aagl amloap Agaiaq sapnd aql puu `luawaaj2d snp 30 suopod Sututewau aql JO f4lPtien aqi loojju 1ou 1pegs guiploq gons •uoiloipsunClualadwoo jo unoo Aue A Pgunut P104 St aauelsummo io uosiod Auu of joauagl uotleotldde uo luawaausd stgl ut pioM so aseugd •osneio •ooualuas •gdvAmud `uoilmsgns `uopoos Auu 31 ' tltgexDA S L l'b •.iaglo agl opniout llegs peunid a p to uuinsuis aql uoglta pue •slapuag uaglo aql apnloui llegs uapuog Attu 3o sunouoid 2gjL •jagwnld puu 32pu2f) 91•t, •paleuStsap os gdm2mLd pue uotioas agl,lo swtal ogtoads agl3o uotsualxa uo •uotltugap •uoueltwti Auu Aldwi to sswdxo lou op pue 0OU31UDAU033o asodmd otp toj :Clauaw pouasui ale luawoaAV stgl jo sgdeuseued pue suogoos snouen og1,10 s2utpeaggns pue ssutpeaq oq jL s u�tpeaH S13, •sosodund lie toj leutSuo ue powaap aq llegs gotgmjo goes sl,tudualunoo leotluaP13o uagwnu u ut polnom aq Am luowaausd sap legl paas$e puu poolsaapun st 1I 'sluut 'uO olt:otl a VI-t, APPROVED AS TO FORM: ACID RAMIREZ, SR., C' ttorney EXECUTED ON this the (TIL—day of 1"k C Q CD)C ,(' , 2010. USA SELF ST RAG , INC. By: tl-WnA, TT MON E, President STATE OF TEXAS § COUNTY OF I Vj fin§ Before me,, WC L., 1- Il 6 C13 , the undersigned notary public, on this day personally appeared Scott Monroc, the President, of USA SELF STORAGE, INC., on behalf of such corporation known to me; proved to me on the oath of ; or proved to me through his/her current (description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person} (check one) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this day ofaC-P f , 20_� NOTARY PUBLIC Notary Publ1c in and for the State of �M A NANCY BARTON Texas ST.t\TE OF TEXAS My commission expires: I `�• l EXPIRES: 12-7-2010 R. \Karen\Files\ContmctalCost•Sharc Agreement \Cost- ShareAlycement.doc Water Line Upsizing Asreement. Page 7 FPI - WATER LINE UPSIZING AGREEMENT THE STATE OF TEXAS § COUNTY OF HARRIS § This Waterline Upsizing Agreement (the "Agreement") is made and entered into between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas (the "CITY"), whose address for purposes hereof is P.O. Box 424, Baytown, Texas 77522, and USA SELF STORAGE, INC., a Texas corporation ("DEVELOPER"), whose address for purposes hereof is P.O. Box 973, Seabrook,Texas 77586. WITNESSETH: I. 1.1 Waterline Upsizing Project. Subject to and upon the terms, provisions and conditions hereinafter set forth, the parties hereto agree that CITY will increase the diameter of the waterline to be constructed by DEVELOPER along the north feeder road of I-10 from its intersection with Spur 330 to its intersection with Crosby Lynchburg Road from an eight- inch line to a ten-inch line(the"Project"). II. 2.1 DEVELOPER's Obligations. In addition to DEVELOPER's obligations elsewhere in this Agreement, DEVELOPER shall have the following obligations: (a) DEVELOPER agrees that it will at its own cost and expense employ one or more professional engineers to design the Project. (b) DEVELOPER agrees to comply with all laws, rules or regulations of applicable governmental authorities, in order to make the lines described herein above meet or exceed the quality standards set by such applicable governmental authorities. (c) DEVELOPER shall be obligated to submit plans and specifications for the construction of the Project (the "Plans and Specifications") to the City Engineer, for approval and/or for required revision and approval by the City Engineer, within ten (10) days after the Effective Date of this Agreement, if it has not already done so at the time of execution of this Agreement. DEVELOPER agrees that the plans and specifications shall include the construction and installation of both an eight-inch(8") diameter and a ten-inch(10") diameter water line together with related improvements. (d) Within ten (10) days after the City Engineer's final approval of the Plans and Specifications submitted by DEVELOPER in accordance with Section 2.1.c, Water Line Upsizing Agreement,Page 1 PM • DEVELOPER shall deposit with the CITY cash in the amount of the engineer's estimate of the construction of the eight-inch water line. The Parties understand and agree that this amount is merely a deposit which is subject to adjustment once bid prices have been received. (e) If the amount deposited with the CITY pursuant to Section 2(d) is less than the bid of the lowest responsible bidder received for the eight-inch (8") line, DEVELOPER shall tender to the CITY the difference between such bid and the deposit within ten (10) days of receipt of an invoice therefor from the CITY. If the total amount tendered to the City is more than the bid received for the eight- inch (8") line, the CITY shall refund such excess funds within thirty (30) days after the award of the construction contract. The parties understand and agree that no contract will be let until DEVELOPER has deposited the monies required herein with the CITY. (f) The legal title to the Project and all appurtenances related thereto shall at all times be vested in the CITY; and DEVELOPER shall have no claim thereto. As such, DEVELOPER shall have no right or privilege to remove or interfere with any part or portion of the Project during or after construction. (g) At its own cost and expense, DEVELOPER shall repair or replace any damage or injury done to any portion of the Project caused by DEVELOPER, its officers, agents, employees, invitees or visitors within ten (10) days of the date on which damage or injury occurred. If the City Manager of the City of Baytown(the"City Manager") in his sole discretion, determines that any portion of the Project is not being repaired and/or replaced in accordance with this Agreement, the City Manager shall so notify DEVELOPER in writing and require DEVELOPER to perform the identified work forthwith and continue diligently therewith until completion. If more than ten days (10) are required to complete the repair or replacement, then the CITY may, at its option, extend such period. If the condition persists after the expiration of ten (10) days from the date of the notice or, if applicable, from the expiration of any extension granted, the City Manager may declare DEVELOPER in default and terminate this Agreement and seek any other appropriate remedy which may be available to the CITY, including, but not limited to, making such repairs or replacements at DEVELOPER's sole cost and expense. It is understood if such repairs or replacements are made by the CITY, DEVELOPER agrees to pay the cost thereof to the CITY on demand. 2.2 CITY's Obligations. In addition to the CITY's obligations elsewhere in this Agreement, the CITY shall have the following obligations: (a) After the City Engineer's final approval of the plans and specifications submitted by the DEVELOPER in accordance with Section 2.1.c and after receipt of the deposit required by Section 2.1.d, the CITY shall be obligated to advertise for bids for the construction of an eight-inch (8") line and a ten-inch (10") line over the length of the Project in accordance with all applicable laws. After any Water Line Upsizing Agreement,Page 2 • additional required sums are paid by DEVELOPER pursuant to Section 2.1.e, the CITY will award the construction of the Project to the lowest responsible bidder. Thereafter, the CITY's contractor will begin the construction of the Project in accordance with the approved plans and specifications and continue such construction efforts thereafter in a diligent manner until the Project is completed and accepted by the CITY. (b) Upon request, the CITY shall provide an update on the status of the Project to the DEVELOPER. (c) After the receipt of the funds by the CITY that are required to be tendered by the DEVELOPER herein, the CITY shall pay all costs and expenses of Project construction, including, not by way of limitation, the costs of all materials, labor and electricity used in connection with such construction and all license, permit or inspection fees that may be charged in connection with such work. (d) The legal title to the Project and all appurtenances related thereto shall at all times be vested in the CITY; and the DEVELOPER shall have no claim thereto. As such, the DEVELOPER shall have no right or privilege to remove or interfere with any part or portion of the Project. III. 3.1 Term. Subject to and upon the terms and conditions set forth herein, this Agreement shall continue in force and effect from the Effective Date (as hereafter defined) until the final completion and acceptance of the Project by the CITY. IV. 4.1 Non-Waiver. Failure of the CITY to declare any default immediately upon occurrence thereof, or delay in taking action in connection therewith, shall not waive such default, but the CITY shall have the right to declare any such default at any time and take such action as might be lawful or authorized hereunder, either in law or in equity. 4.2 Default by DEVELOPER. The CITY shall have the right to declare DEVELOPER in default and immediately terminate the Agreement without notice, unless otherwise specified herein, or exercise any other rights or remedies available hereunder or as a matter of law if DEVELOPER: (a) Defaults in the timely performance of any obligation imposed upon DEVELOPER hereunder and does not cure the default within fifteen (15) days (unless another period of time is specified herein) after written notice describing the default in reasonable detail has been given DEVELOPER or, if the City Manager in his sole discretion, determines that the default cannot reasonably be cured within the fifteen (15) day period, if DEVELOPER does not commence Water Line Upsizing Agreement,Page 3 curative work within the fifteen (15) day period and prosecute the work to completion with diligence; (b) Institutes proceedings,whether voluntary or otherwise,under the provisions of the Federal Bankruptcy Act or any other federal or state law relating to bankruptcy or insolvency; or (c) Makes any assignment of this Agreement without the written approval of the CITY. Should the CITY terminate this Agreement for cause, the CITY will be relieved of its obligations hereunder and DEVELOPER shall not be entitled to any reimbursement of the costs incurred associated with the Project pursuant to Section 2.2.a. Additionally, should this Agreement be terminated, the CITY shall be entitled to seek all other relief which may be allowed by law. Any and all defaults declared by the CITY shall be final and binding upon DEVELOPER. 4.3 Remedies Cumulative. All rights and remedies of the CITY and/or DEVELOPER under this Agreement shall be cumulative and none shall exclude any other rights or remedies allowed by law. 4.4 Amendments. This Agreement may not be altered, changed or amended, except by an instrument in writing,signed by both parties hereto. 4.5 Release. By this Agreement, the CITY does not consent to litigation or suit, and the CITY hereby expressly revokes any consent to litigation that it may have granted by the terms of this Agreement or any other contract or agreement, any charter, or applicable state law. Nothing contained herein shall be construed in any way so as to waive in whole or part the CITY's sovereign immunity. DEVELOPER assumes full responsibility for its obligations under this Agreement performed hereunder and hereby releases, relinquishes, discharges, and holds harmless the CITY, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether they be either of the parties hereto, their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto, their employees, or other third parties)that is caused by or alleged to be caused by, arising out of, or in connection with DEVELOPER's work to be performed hereunder. This release shall apply with respect to DEVELOPER's work regardless of whether said claims,demands, and causes of action are covered in whole or in part by insurance. 4.6 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the CITY and DEVELOPER hereby agree that no claim or dispute between the CITY and DEVELOPER arising out of or relating to this Agreement shall be decided by any arbitration proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1-14), or any applicable State arbitration statute, including, but not limited to, the Texas General Arbitration Act, provided that in the event Water Line Upsizing Agreement,Page 4 that the CITY is subjected to an arbitration proceeding notwithstanding this provision, DEVELOPER consents to be joined in the arbitration proceeding if DEVELOPER's presence is required or requested by the CITY for complete relief to be recorded in the arbitration proceeding. 4.7 Assignment. DEVELOPER shall not assign this Agreement without first obtaining the written consent of the CITY. 4.8 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand-delivery, addressed to the respective parties as follows: CITY City of Baytown Attn: City Manager P.O.Box 424 Baytown,TX 77522 DEVELOPER USA Self Storage, Inc. P.O. Box 973 Seabrook, Texas 77586 4.9 Binding Effect. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of the CITY and DEVELOPER and their respective successors and assigns. 4.10 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal, state and local laws and regulations, and all judicial determinations relative thereto. 4.11 Choice of Law and Venue. This Agreement is declared to be a Texas contract,and all of the terms thereof shall be construed according to the laws of the State of Texas. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. 4.12 Ambiguities. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 4.13 Complete Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied,between or among the parties hereto,relating to the subject matter of this Agreement,which are not fully expressed herein. Water Line Upsizing Agreement,Page 5 4.14 Duplicate Originals. It is understood and agreed that this Agreement may be executed in a number of identical counterparts each of which shall be deemed an original for all purposes. 4.15 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 4.16 Gender and Number. The pronouns of any gender shall include the other genders, and either the singular or the plural shall include the other. 4.17 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement,or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 4.18 Agreement Read. The parties acknowledge that they have read,understand and intend to be bound by the terms and conditions of this Agreement. 4.19 Authority. The officers executing this Agreement on behalf of each party hereby confirm that such officers have full authority to execute this Agreement and to bind the party he/she represents. 1 EXECUTED ON this the day of , 20 V (the "Effective Date"). CITY OF BAYTOWN By: '� �'�� ��* � Interim CityManager iftArA 1 /lr �+ Robert D. Leiper, g • if A 010 .. i i! � / i// L \T ���� � �:��.�� • r *, erk Water Line Upsizing Agreement,Page 6 APPROVED AS TO FORM: Al L_YA ACIO RAMIREZ, SR., C. ttorney EXECUTED ON this the(o lay of De Q(Alf , 2010. USA SELF ST RAG , INC. By: C TT MON E, President STATE OF TEXAS § § COUNTY OF (aIVkSa§ Before me, IV tAc , the undersigned notary public, on this day personally appeared Scott Monroe, the President, of USA SELF STORAGE, INC., on behalf of such corporation V known to me; proved to me on the oath of ; or proved to me through his/her current {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person} (check one) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this Mt1 day of TCQ_( `tt(' , 2010 RCA-\( PYL.) Notary Public in and for the State of NOTARY PUBLIC Texas �� NANCY BARTON �` STATE OF TEXAS My commission expires: 3• (1. �O 'fICW EXPIRES: 12-7-2010 R:\Karen\Files\Contracts\Cost-Share Agreement\Cost-ShareAgreement.doc Water Line Upsizing Agreement,Page 7