Ordinance No. 11,689ORDINANCF, NO, 11,689
AN ORDINANCE OFTI [I," CITY COUNCIL O1`, TI 11" C. OF BAYTOWN,TEXAS,
AU111ORIZING THE CITY MANAGER TO I.Xi"CUTE A LEVFER AGREFNIENT
WITH TllF, 13AYTOWN 1,11 SJ'OR [CAI. PRE'Sl"RVATION ASSOCIATION FOR
IMPROVEMENTS TOT HE"BARN MUSEUM A'I''1*1-11,'REI)LJBLICOI"I'l-"XAS PLAZA;
AI- TI IORIZ ING PAYNI ENITBYTI IT CITY 01 BAYTOWN, IN ANA MOUNTNOT TO
EXCE'ED THIRTY-FIVE' 1"1-IOU SAND AND NO/100 DOLLARS ($35,000.00); AND
PROVIDIN6 I"OR THE F"FFE'("FIVE DATIHITI ll,`IREOF
BE IT ORDAINED BY TI IE' CITY COUNCIL OF TI IE CITY OF BAYTOWN,TECAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes the City
Manager to execute a Letter Agreement \\'ith tile Baytown Historical Preservation Association Im
iniprovernentsto (lie Barn Museum at the Republic0i"TCNaS Plaza, A copy ot'said letter agreement is attached
hereto. marked Exhibit ``A "' and made part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown hereby author payment to Baytown
Historical Preservation Association in the amount not to exceed'I'l lIRTY-FIVE TI IOUSAND AND NO/100
DOLLARS ($35,000,00) for the letter agreement authorized in Section I hereof.
Section 3: This ordinance shall take effect immediately firorn and after its passage by the City
Council of the City ofBaytown.
IN'l"RODUCED, READ and PASSED by the affirmative vote of the CX' Council of the City of
Baytown this the e I 4'�' day 0 J`J U ly, 201 1.
'y
STEjI-IPN4(. DONCARLOS, Mayor
R \$"ircnTdcs\Cky Cmmc&0rdimmQes\20 I I'Ju Iy C 4`HaoowT a I iswTiuA I I resQT%a I lonAswoa I ion I O Ic rAgTcciiicii I do�
Im. oil
CITY OF BAYTOiWN
Parks and Recreation Department 281-420-6599
2407 Market Street, Baytown , Texas 77520
day 11, 2011
NIs. Wybra Holland
President
Baytown Historical Preservation Association
P.O. Box 1244
BaylownJA 77522-1244
Re: Improvements to Complete the Interior oftlic Barn Museum at the Republic of"I'exas Plaza
Dear Ms, I lolland:
This Letter Agreement ("Agreement") evidences the tennis and conditions under which Baytown Historical preservation
Association (the "'' Association'"), a"fcxas non-prolit corporation, will complete the interior ofthe barn muscurn at the Republic
of Texas Plaza and under which the City of Baytown (the "City") will provide assistance towards such improvements,
Association's Obli m6 k
6— �m
1.01 S qv' gg& For and in consideration of the payment by the City to the Association of the agreed
paynients orhotel tax funds specified in Article III, the Association agrees to use such hotel tax funds to promote tourism and the
convention and hotel industry through a historical restoration and preservation project designed to encourage tourists and
convention delegates to visit the Republic of"'I"exas Plaza, it preserved historic site located within the City and frequented by
tourists and convC11tion, delegates.
'I'lic Association covenants and agrees that it will improve the Barn MUSCUIT) located at the Republic ofTexas Plaza.
'rhe Association shall be responsible for all costs associated therewith, including, but not limited to,
> finishing till the walls and exposed areas with shiplip;
decking the top ofilic, restrooms for storage;
cnelosingany areas open to outside exposure at topside ofstairs,
staining all interior wood with Sikkens wood finish;
building a kitchenette with walls, door cabinets, sink, reffigerator and a stove or wanning drawers; and
installing air conditioning and heat.
1.02 Ass ociation's Comnliance. The Association agrees to, comply with all laws, rules or regulations of
applicable governmental ""authorities in perforoing the services required herein. Such laws, rules and regulations inch t d e
strict.
compliance with all codes and ordinances of the City orBiytown, Additionally„ the Association agrees to demonstrate strict
compliance with the record keeping, and apportionment Ii mitations imposed by Sections 351.1 1 (1), 3 51.103 and 351.104 o f the
1'exas I ' 7 ax Codc,as applicable. The Association shall not utilize hotel occupancy tax funds for anyexperiditure which has, not
been specifically documented to satisry the puiliosesset forth in Sections 1.01 hercinabove. The Association agrees tai rc('iititt
any and till Rinds determined by the City to have been used improperly within 30 days after such detentlination. Lite payincrus
shall accnic interest at the rate Provided in Section 2251.025 of the Texas Government Code, This section shall survive the
expiration or earlier termination or this Agrcenient.
Baytown Historical Preservation Association
May 11, 2011
Page 2
1.03 Association's Oblivatio
A. Annual Budset and Reps. The Association understands that by accepting monies paid by the City
pursuant to Article U. the Association has the obligation to submit its annual budget for such operations of the
Association funded by hotel occupancy tax revenue to the City Council for approval and shall make quarterly reports to
the City Council regarding the expenditures made with the funds paid by the City in accordance with Article II hereof:
The Association acknowledges that the approval of such budget by the City Council creates a fiduciary duty in the
Association with respect to the hotel occupancy tax funds paid by the City to the Association under this Agreement.
The Association shall expend hotel tax occupancy funds only in the manner and for the purposes specified in this
Agreement and in the budget as approved in writing by the City Council.
B. Duty with Respect to Funds Received. Any fee received by the Association pursuant to this
Agreement shall be deposited in a separate account and may not be commingled with other funds. Additionally, by
receiving the monies pursuant to Article B hereof; the Association has a fiduciary duty to the City with respect to such
monies.
C. Financial Records. The Association shall maintain complete and accurate financial records of the
expenditure of funds provided by the City pursuant to this Agreement and, on request of the City Council or any other
person, shall make the records available for inspection and review within five days of receipt of a request.
D. Annual Report. Thirty (30) days after September 30, 2011, and thirty (30) days after completion ofthe
improvements, the Association will famish to the City a performance report of its work under this Agreement which
shall reflect overall activities conducted and expenditures made pursuant to this Agreement.
E. Notice of Meetings. The Association shall give the Director of Parks and Recreation reasonable
advance written notice of the time and place of all meetings of the Association's Board of Directors or any
constituency of the Association at which this Agreement or any matter subject to this Agreement shall be considered.
II.
City's Obligation
2.01 City's Sale Obligation. The Association and the City expressly understand and agree that the only obligation of
the City under this Agreement is to pay a fee not to exceed THIRTY -FIVE THOUSAND AND N01100 DOLLARS
($35,000.00) to the Association for the performance of services in accordance with Article I hereinabove. The parties
understand and agree that the Association may invoice for partial payments for those components that have been completed and
approved by the Director of Parks and Recreation; however, the payments will not be (i) made until the Association has
provided an affidavit of all bills paid in a form satisfactory to the City from all persons that have performed work on the
components that have been completed and approved and are being invoiced and (ii) greater than the actual expense incurred by
the Association in performing the above - referenced services.
2.02 Due Date. The City shall pay the fee specified in Section 2.01 on or before the thirtieth (30`h) day after
receiving a proper invoice therefor. However, the parties agree that such invoice shall not be submitted to the City until the
improvements specified on the invoice have been completed and approved by the City.
III.
Miscellaneous Provisions
3.01 Termination. Any breach of any provision of this Agreement shall constitute an Event of Default for which
the City may, and the Association explicitly recognizes the City's right to, terminate this Agreement by giving written notice to
the Association. Additionally, it is understood that the City may terminate this Agreement at anytime without cause by giving
Baytown Historical Preservation Association
May 11, 2011
Page 3
written notice of such termination to the Association. Termination shall take effect immediately on receipt thereof by the
Association. Upon termination, for cause, no further payment will be made to the Association. Upon termination for
convenience or expiration of this Agreement, the Director of Parks and Recreation shall inspect the improvements and shall
authorize payment for those that have been completed and are approved by the Director of Parks and Recreation; however, the
City shall have no obligation to pay for improvements not completed and approved by the City on or before the date of
termination or expiration.
3.02 Address and Notice. Unless otherwise provided in this Agreement, any notice, communication, request,
reply or advice (herein severally and collectively for convenience, called "Notice'] herein provided or permitted to be given,
made or accepted by any party to the other must be in writing and may be given or served by depositing the same in the United
States mail, postpaid and registered or certified and addressed to the party to be notified, with return receipt requested, or by
delivering the same to an officer of such party, or by prepaid telegram, when appropriate, addressed to the party to be notified
Notice deposited in the mail in the manner hereinabove described shall be conclusively deemed to be effective, unless otherwise
stated in this Agreement, from and after the expiration of three (3) days after it is so deposited.
Notice given in any other manner shall be effective only if and when received by the party to be notified For the
purpose of notice, the address of the parties shall, until changed as hereinafter provided, be as follows:
If to the City, to
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522 -0424
If to the Association, to
Baytown Historical Preservation Association
Attn: President
P.O. Box 1244
Baytown, TX 77522 -1244
3.03 Assign a_bility. This Agreement shall bind and benefit the respective parries and their legal successors and
shall not be assignable in whole or in part by any party without first obtaining written consent of the other party.
3.04 No Additional Waiver f=lied. The failure of any party hereto to insist, in anyone or more instances, upon
performance of any of the terms, covenants or conditions of this Agreement, shall not be construed as a waiver or
relinquishment of the future performance of any such terms, covenants or conditions by any other party hereto, but the
obligation of such other party with respect to such future performance shall continue in full force and effect.
3.05 Modification. Except as otherwise provided herein, this Agreement shall be subject to change ormodiftcation
only with the mutual written consent of the parties hereto.
3.06 independent Contractor. The relationship of the Association to the City shall be that of an independent
contractor: The City shall have no authority to direct the day - today activities of any ofthe Association's personnel decisions,
and shall have no other rights to internal working papers or other information or data than the City would have to any other
independent contractor providing specific services.
3.07 Insurance . The Association shall require all of its contractors wonting on the improvements to maintain the
following minimum insurance coverages and limits:
Baytown Historical Preservation Association
May 11, 2011
Page 4
A. Commercial General Liability
• General Aggregate: $1,000,000
• Per Occurrence: $500,000
• Coverage shall be at least as broad as ISO CG 00 01 10 93
• No coverage shall be deleted from standard policy without notification of individual exclusions being
attached for review and acceptance.
2. Business Automobile Policy
• Combined Single Limits: $500,000
• Coverage for "Any Auto"
3. Workers' Compensation
• Statutory Limits
• Employer's Liability $500,000
• Waiver of Subrogation required.
Should the Association's contractor have no employees, such contractor shall sign an affidavit to such effect
and shall indemnify, protect, and defend the City from any claim arising from a person claiming to be an
employee of such contractor. Should the Association's contractor subsequently hire employees while
performing services hereunder, such contractor shall immediately procure and maintain Workers'
Compensation Insurance meeting the requirements herein
Prior to any work being performed in furtherance of the improvements required herein, the Association shall file with the City
valid Certificates of Insurance and endorsements acceptable to the City. The following are general requirements applicable to
all policies:
AM Best Rating of B +; VII or better for all liability policies.
D Insurance carriers licensed and admitted to do business in State of Texas will be accepted.
Upon request of and without cost to City of Baytown, certified copies ofall insurance policies and/orcertificates of
insurance shall be furnished to City of Baytown's representative.
D Certificates of insurance showing evidence of insurance coverage shall be provided to City of Baytown's
representative prior to any work being performed at the site.
Liability policies must be on occurrence form.
D Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled orreduced
in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested,
has been given to the City.
D The City of Baytown, its officers, agents and employees are to be added as Additional Insureds to all liability
policies.
A waiver of subrogation is required in favor of the City for Worker's Compensation Insurance.
3.08 Indemni
THE ASSOCIATION AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS,
AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES
(HEREINAFTER COLLECTIVELY REFERRED TO AS THE 'CITY'), FROM AND
AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION,
SUITS AND LIABILITY OF EVERY KIND, INCLUDING, BUT NOT LE IITED TO, ALL
EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS' FEES, FOR
INJURY TO OR DEATH OF ANY PERSON, OR FOR ANY AND ALL DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PROVIDED BY THE
ASSOCIATION PURSUANT TO THIS AGREEMENT, THE CONDUCT OR
Baytown Historical Preservation Association
May 11, 2011
Page 5
MANAGEMENT OF THE ASSOCIATION'S BUSINESS OR ACTIVITIES, OR FROM
ANY OTHER ACT OR OMISSION BY THE ASSOCIATION, ITS AGENTS, AND
EMPLOYEES, WHEN PERFORMING SERVICES IN ACCORDANCE WITH THIS
AGREEMENT, WHERE SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED BY
THE JOINT NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR ENTITY
AND /OR BY THE JOINT OR SOLE NEGLIGENCE OF THE ASSOCIATION. IT IS
THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE
ASSOCIATION AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS INDEMNITY BY THE ASSOCIATION TO INDEMNIFY AND
PROTECT THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM THE
CONSEQUENCES OF (I) THE CITY'S OWN NEGLIGENCE, WHERE THAT
NEGLIGENCE IS A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH
OR DAMAGE WITH ANY OTHER PERSON OR ENTITY AND /OR (II) THE
ASSOCIATION'S JOINT AND /OR SOLE NEGLIGENCE. FURTHERMORE, THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO
APPLICATION TO THE CITY FOR ANY CLAIM, LOSS, DAMAGE, CAUSE OF
ACTION, SUIT AND LIABILITY WHERE THE INJURY, DEATH OR DAMAGE
RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY, UNMIXED WITH THE
FAULT OF ANY OTHER PERSON OR ENTITY. IN THE EVENT THAT ANY ACTION
OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE
ABOVE, THE ASSOCIATION FURTHER AGREES AND COVENANTS TO DEFEND
THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE
CITY.
The indemnity provided hercinabove shall survive the termination and/or expiration of this Agreement.
3.09 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 oragrecment, any
charter, or applicable state law. Nothing herein shall be construed so as to limit or waive the City's sovereign immunity. The
Association assumes full responsibility for its services performed hereunder and hereby releases, relinquishes and discharges 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 the
Association's work to be performed hereunder. This release shall apply with respect to the Association's services regardless of
whether said claims, demands, and causes of action arc covered in whole or in part by insurance.
3.10 Parties in Interest. This Agreement shall be for the sole and exclusive benefit of the parties hereto and
shall not be construed to confer any rights upon any third party. The City shall never be subject to any liability in damages to
any patron or contractor of the Association for any failure to perform its obligations under this Agreement.
3.11 Captions. The captions appearing at the first of each numbered section in this Agreement are inserted and
included solely for convenience and shall never be considered or given any effect in construing this Agreement or any provision
hereof, or in connection with the duties, obligations or liabilities of the respective parties hereto or in ascertaining intent, if any
question of intent should arise.
Baytown Historical Preservation Association
May 11, 2011
Page 6
3.12 Sevembili% The provisions of this Agreement are severable, and if any provision or part of this Agreement
or its application thereto to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or
unconstitutional for any reason, the remainder of this Agreement and the application of such provisions or part of this
Agreement to other persons or circumstances shall not be affected thereby.
3.13 Mere . This Agreement embodies the entire understanding and agreement between the parties as to the services
to be provided herein, and there are no prior effective representations , warranties or agreements between the parties.
3.14 Force Majeure. Neither the City nor the Association shall be required to perform any term, condition or
covenant of this Agreement while such performance is delayed or interrupted by an act of God, material or labor restrictions by
any governmental authority, civil riot, flood, hurricane or other natural disaster. Any such delay in performance shall be
excused only for the same amount of time as the occurrence giving rise to the delay lasted or such period of time as is reasonably
necessary for the effects thereof to have dissipated as determined in the sole discretion of the City.
3.1 S Construction of Agreement. The parties agree that this Agreement shall not be construed in favor of or
against any party on the basis that the party did or did not author this Agreement.
3.16 Tetra= This Agreement shall be in force and effect for one year commencing on the date of execution hereof
by the City Manager, unless earlier terminated in accordance with Section 3.01.
3.17 Choice of Law and Venue. This Agreement shall in all respects be interpreted and construed in accordance
with and governed by the laws of the State of Texas and the City, regardless of the place of its execution or performance. The
place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas.
3.18 Authggly. The officers executing this Agreement on behalf of the parties hereby represents that such officers
have full authority to execute this Agreement and to bind the party he/she represents.
3.19 Agreement Read. The parties acknowledge that they have read, understand and intend to be bound by the terms
and conditions of this Agreement.
Should the above- referenced terms and conditions be acceptable to you, please have this letter agreement executed by
the appropriate officer of the Association and return the same to my attention at the above - referenced address Thereafter, it will
be presented to the City Manager for execution. Should you have any questions or if I may be of any assistance, please do not
hesitate to contact me. Thank you for your assistance in this matter.
Sin ly,
. ,tom_
Scott
Director of Parks and Recreation
[Remainder of page intentionally left blank.)
Baytown Historical Preservation Association
May 11, 2011
Page 7
AGREED:
BAYTOWN HISTORICAL PRESERVATION
ASSOCIATION
(Sib re) (Da(ei
(Printed Name)
(Title)
ATTEST:
�
4 / f///
,
(3gnature) ( te)
(Printed Name)
(Title)
AGREED:
CITY OF BAYTOWN
Robert D. Leiper, City Manager (Date)
ATTEST:
Leticia Brysch, City Clerk (Date)
K%amnWilaTuntmct"opown IlWorical P'racrvation ApvcnanlVxllerAgrccmcm4Rcimin2R2m .doe
CITY OF BAYTOWN
BAYTOWN Parks and Recreation Department 281 420 6599
2407 Market Street, Baytown,Texas 775211
May I I. 2011
Ms. Wybra I lolland
President
Baytown I listorical Preservation Association
P.O.Box 1244
Baytown,TX 77522-1244
Re: Improvements to Complete the Interior of the Barn Museum at the Republic of Texas Plaza
Dear Ms. I lolland:
This Letter Agreement ("Agreement") evidences the terms and conditions under which Baytown historical Preservation
Association(the"Association"),a Texas non-profit corporation,will complete the interior of the barn museum at the Republic
of Texas Plaza and under which the City of 13aytown(the"City") will provide assistance towards such improvements.
Association's Obligations
1.01 Association's Services. For and in consideration of the payment by the City to the Association of the agreed
payments of hotel tax funds specified in Article III,the Association agrees to use such hotel tax Bouts to promote tourism and the
convention and hotel industry through a historical restoration and preservation project designed to encourage tourists and
convention delegates to visit the Republic of Texas Plaza,a preserved historic site located within the City and frequented by
tourists and convention delegates.
The Association covenants and agrees that it will improve the Barn Museum located at the Republic of Texas Plaza.
The Association shall be responsible for all costs associated therewith. including,but not limited to,
)0 finishing all the walls and exposed areas with shiplap;
Y decking the top of the restroonts for storage;
Y enclosing any areas open to outside exposure at topside of stairs;
➢ staining all interior wood with Sikkens wood finish;
➢ building a kitchenette with walls,door cabinets,sink. refrigerator and a stove or warming drawers;and
• installing air conditioning and heat.
1.02 Association's Compliance. The Association agrees to comply with all laws, Hiles or regulations of
applicable governmental authorities in performing the services required herein. Such laws,rules and regulations include strict
compliance with all codes and ordinances of the City of Baytown. Additionally,the Association agrees to demonstrate strict
compliance with the record keeping and apportionment limitations imposed by Sections 351.101(t),351.103 and 351.104 of the
Texas Tax Code,as applicable. The Association shall not utilize hotel occupancy tax Binds for any expenditure which has not
been specifically documented to satisfy the purposes set forth in Sections I.0I hereinabove. The Association agrees to refund
any and all finds determined by the City to have been used improperly within 30 days after such determination. Late payments
shall accrue interest at the rate provided in Section 2251.025 of the Texas Government('ode. This section shall survive the
expiration or earlier termination of this Agreement.
Baytown Historical Preservation Association
May 11,2011
Page 2
1.03 Association's Obligations.
A. Annual Budget and Reports. The Association understands that by accepting monies paid by the City
pursuant to Article II, the Association has the obligation to submit its annual budget for such operations of the
Association funded by hotel occupancy tax revenue to the City Council for approval and shall make quarterly reports to
the City Council regarding the expenditures made with the funds paid by the City in accordance with Article II hereof.
The Association acknowledges that the approval of such budget by the City Council creates a fiduciary duty in the
Association with respect to the hotel occupancy tax funds paid by the City to the Association under this Agreement.
The Association shall expend hotel tax occupancy funds only in the manner and for the purposes specified in this
Agreement and in the budget as approved in writing by the City Council.
B. Duty with Respect to Funds Received. Any fee received by the Association pursuant to this
Agreement shall be deposited in a separate account and may not be commingled with other funds. Additionally,by
receiving the monies pursuant to Article II hereof,the Association has a fiduciary duty to the City with respect to such
monies.
C. Financial Records. The Association shall maintain complete and accurate financial records of the
expenditure of funds provided by the City pursuant to this Agreement and,on request of the City Council or any other
person,shall make the records available for inspection and review within five days of receipt of a request.
D. Annual Report. Thirty(30)days after September 30,2011,and thirty(30)days after completion of the
improvements,the Association will furnish to the City a performance report of its work under this Agreement which
shall reflect overall activities conducted and expenditures made pursuant to this Agreement.
E. Notice of Meetings. The Association shall give the Director of Parks and Recreation reasonable
advance written notice of the time and place of all meetings of the Association's Board of Directors or any
constituency of the Association at which this Agreement or any matter subject to this Agreement shall be considered.
II.
City's Obligation
2.01 City's Sole Obligation. The Association and the City expressly understand and agree that the only obligation of
the City under this Agreement is to pay a fee not to exceed THIRTY-FIVE THOUSAND AND NO/100 DOLLARS
(S35,000.00) to the Association for the performance of services in accordance with Article I hereinabove. The parties
understand and agree that the Association may invoice for partial payments for those components that have been completed and
approved by the Director of Parks and Recreation; however, the payments will not be (i) made until the Association has
provided an affidavit of all bills paid in a form satisfactory to the City from all persons that have performed work on the
components that have been completed and approved and are being invoiced and(ii)greater than the actual expense incurred by
the Association in performing the above-referenced services.
2.02 Due Date. The City shall pay the fee specified in Section 2.01 on or before the thirtieth(30th)day after
receiving a proper invoice therefor. However, the parties agree that such invoice shall not be submitted to the City until the
improvements specified on the invoice have been completed and approved by the City.
Miscellaneous Provisions
3.01 Termination. Any breach of any provision of this Agreement shall constitute an Event of Default for which
the City may,and the Association explicitly recognizes the City's right to,terminate this Agreement by giving written notice to
the Association. Additionally,it is understood that the City may terminate this Agreement at any time without cause by giving
Baytown Historical Preservation Association
May 11,2011
Page 3
written notice of such termination to the Association. Termination shall take effect immediately on receipt thereof by the
Association. Upon termination, for cause, no further payment will be made to the Association. Upon termination for
convenience or expiration of this Agreement,the Director of Parks and Recreation shall inspect the improvements and shall
authorize payment for those that have been completed and are approved by the Director of Parks and Recreation;however,the
City shall have no obligation to pay for improvements not completed and approved by the City on or before the date of
termination or expiration.
3.02 Address and Notice. Unless otherwise provided in this Agreement,any notice,communication,request,
reply or advice(herein severally and collectively for convenience,called"Notice")herein provided or permitted to be given,
made or accepted by any party to the other must be in writing and may be given or served by depositing the same in the United
States mail,postpaid and registered or certified and addressed to the party to be notified,with return receipt requested,or by
delivering the same to an officer of such party,or by prepaid telegram,when appropriate,addressed to the party to be notified.
Notice deposited in the mail in the manner hereinabove described shall be conclusively deemed to be effective,unless otherwise
stated in this Agreement, from and after the expiration of three(3)days after it is so deposited.
Notice given in any other manner shall be effective only if and when received by the party to be notified. For the
purpose of notice,the address of the parties shall,until changed as hereinafter provided,be as follows:
If to the City,to
City of Baytown
Attn:City Manager
P.O. Box 424
Baytown,TX 77522-0424
If to the Association,to
Baytown Historical Preservation Association
Attn: President
P.O. Box 1244
Baytown,TX 77522-1244
3.03 Assignability. This Agreement shall bind and benefit the respective parties and their legal successors and
shall not be assignable in whole or in part by any party without first obtaining written consent of the other party.
3.04 No Additional Waiver Implied. The failure of any party hereto to insist, in any one or more instances,upon
performance of any of the terms, covenants or conditions of this Agreement, shall not be construed as a waiver or
relinquishment of the future performance of any such terms, covenants or conditions by any other party hereto, but the
obligation of such other party with respect to such future performance shall continue in full force and effect.
3.05 Modification. Except as otherwise provided herein,this Agreement shall be subject to change or modification
only with the mutual written consent of the parties hereto.
3.06 Independent Contractor. The relationship of the Association to the City shall be that of an independent
contractor. The City shall have no authority to direct the day-to-day activities of any of the Association's personnel decisions,
and shall have no other rights to internal working papers or other information or data than the City would have to any other
independent contractor providing specific services.
3.07 Insurance. The Association shall require all of its contractors working on the improvements to maintain the
following minimum insurance coverages and limits:
Baytown Historical Preservation Association
May 11,2011
Page 4
A. Commercial General Liability
• General Aggregate: S1,000,000
• Per Occurrence: $500,000
• Coverage shall be at least as broad as ISO CG 00 01 10 93
• No coverage shall be deleted from standard policy without notification of individual exclusions being
attached for review and acceptance.
2. Business Automobile Policy
■ Combined Single Limits: S500,000
■ Coverage for"Any Auto"
3. Workers'Compensation
• Statutory Limits
• Employer's Liability S500,000
• Waiver of Subrogation required.
Should the Association's contractor have no employees,such contractor shall sign an affidavit to such effect
and shall indemnify, protect, and defend the City from any claim arising from a person claiming to be an
employee of such contractor. Should the Association's contractor subsequently hire employees while
performing services hereunder, such contractor shall immediately procure and maintain Workers'
Compensation Insurance meeting the requirements herein
Prior to any work being performed in furtherance of the improvements required herein,the Association shall file with the City
valid Certificates of Insurance and endorsements acceptable to the City. The following are general requirements applicable to
all policies:
> AM Best Rating of B+; VII or better for all liability policies.
> Insurance carriers licensed and admitted to do business in State of Texas will be accepted.
> Upon request of and without cost to City of Baytown,certified copies of all insurance policies and/or certificates of
insurance shall be furnished to City of Baytown's representative.
> Certificates of insurance showing evidence of insurance coverage shall be provided to City of Baytown's
representative prior to any work being performed at the site.
> Liability policies must be on occurrence form.
➢ Each insurance policy shall be endorsed to state that coverage shall not be suspended,voided,canceled or reduced
in coverage or in limits except after thirty(30)days'prior written notice by certified mail,return receipt requested,
has been given to the City.
➢ The City of Baytown, its officers, agents and employees are to be added as Additional Insureds to all liability
policies.
➢ A waiver of subrogation is required in favor of the City for Worker's Compensation Insurance.
3.08 Indemnity.
THE ASSOCIATION AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS,
AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES
(HEREINAFTER COLLECTIVELY REFERRED TO AS THE "CITY"), FROM AND
AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION,
SUITS AND LIABILITY OF EVERY KIND,INCLUDING,BUT NOT LIMITED TO,ALL
EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS' FEES, FOR
INJURY TO OR DEATH OF ANY PERSON, OR FOR ANY AND ALL DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PROVIDED BY THE
ASSOCIATION PURSUANT TO THIS AGREEMENT, THE CONDUCT OR
Baytown Historical Preservation Association
May 11,2011
Page 5
MANAGEMENT OF THE ASSOCIATION'S BUSINESS OR ACTIVITIES, OR FROM
ANY OTHER ACT OR OMISSION BY THE ASSOCIATION, ITS AGENTS, AND
EMPLOYEES, WHEN PERFORMING SERVICES IN ACCORDANCE WITH THIS
AGREEMENT,WHERE SUCH INJURIES,DEATH OR DAMAGES ARE CAUSED BY
THE JOINT NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR ENTITY
AND/OR BY THE JOINT OR SOLE NEGLIGENCE OF THE ASSOCIATION. IT IS
THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE
ASSOCIATION AND THE CITY,THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS INDEMNITY BY THE ASSOCIATION TO INDEMNIFY AND
PROTECT THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM THE
CONSEQUENCES OF (I) THE CITY'S OWN NEGLIGENCE, WHERE THAT
NEGLIGENCE IS A CONCURRING CAUSE OF THE RESULTING INJURY,DEATH
OR DAMAGE WITH ANY OTHER PERSON OR ENTITY AND/OR (II) THE
ASSOCIATION'S JOINT AND/OR SOLE NEGLIGENCE. FURTHERMORE, THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO
APPLICATION TO THE CITY FOR ANY CLAIM, LOSS, DAMAGE, CAUSE OF
ACTION, SUIT AND LIABILITY WHERE THE INJURY, DEATH OR DAMAGE
RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY, UNMIXED WITH THE
FAULT OF ANY OTHER PERSON OR ENTITY. IN THE EVENT THAT ANY ACTION
OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE
ABOVE, THE ASSOCIATION FURTHER AGREES AND COVENANTS TO DEFEND
THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE
CITY.
The indemnity provided hereinabove shall survive the termination and/or expiration of this Agreement.
3.09 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 herein shall be construed so as to limit or waive the City's sovereign immunity. The
Association assumes full responsibility for its services performed hereunder and hereby releases,relinquishes and discharges 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 the
Association's work to be performed hereunder. This release shall apply with respect to the Association's services regardless of
whether said claims,demands,and causes of action are covered in whole or in part by insurance.
3.10 Parties in Interest. This Agreement shall be for the sole and exclusive benefit of the parties hereto and
shall not be construed to confer any rights upon any third party. The City shall never be subject to any liability in damages to
any patron or contractor of the Association for any failure to perform its obligations under this Agreement.
3.11 Captions. The captions appearing at the first of each numbered section in this Agreement are inserted and
included solely for convenience and shall never be considered or given any effect in construing this Agreement or any provision
hereof,or in connection with the duties,obligations or liabilities of the respective parties hereto or in ascertaining intent,if any
question of intent should arise.
Baytown Historical Preservation Association
May I I,2011
Page 6
3.12 Severability. The provisions of this Agreement are severable,and if any provision or part of this Agreement
or its application thereto to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or
unconstitutional for any reason, the remainder of this Agreement and the application of such provisions or part of this
Agreement to other persons or circumstances shall not be affected thereby.
3.13 Merger.This Agreement embodies the entire understanding and agreement between the parties as to the services
to be provided herein,and there are no prior effective representations,warranties or agreements between the parties.
3.14 Force Majeure. Neither the City nor the Association shall be required to perform any term, condition or
covenant of this Agreement while such performance is delayed or interrupted by an act of God,material or labor restrictions by
any governmental authority, civil riot, flood, hurricane or other natural disaster. Any such delay in performance shall be
excused only for the same amount of time as the occurrence giving rise to the delay lasted or such period of time as is reasonably
necessary for the effects thereof to have dissipated as determined in the sole discretion of the City.
3.15 Construction of Agreement. The parties agree that this Agreement shall not be construed in favor of or
against any party on the basis that the party did or did not author this Agreement.
3.16 Term. This Agreement shall be in force and effect for one year commencing on the date of execution hereof
by the City Manager,unless earlier terminated in accordance with Section 3.01.
3.17 Choice of Law and Venue. This Agreement shall in all respects be interpreted and construed in accordance
with and governed by the laws of the State of Texas and the City,regardless of the place of its execution or performance. The
place of making and the place of performance for all purposes shall be Baytown, Hams County,Texas.
3.18 Authority. The officers executing this Agreement on behalf of the parties hereby represents that such officers
have full authority to execute this Agreement and to bind the party he/she represents.
3.19 Agreement Read. The parties acknowledge that they have read,understand and intend to be bound by the terms
and conditions of this Agreement.
Should the above-referenced terms and conditions be acceptable to you,please have this letter agreement executed by
the appropriate officer of the Association and return the same to my attention at the above-referenced address Thereafter,it will
be presented to the City Manager for execution. Should you have any questions or if I may be of any assistance,please do not
hesitate to contact me. Thank you for your assistance in this matter.
Sine ly,
Scott nson
Director of Parks and Recreation
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Baytown I listorical Preservation Association
May 11,2011
Page 7
AGREED:
I3AYTOWN HISTORICAL PRESERVATION
ASSOCIATION
(Sig ure) (Da e
(Printed Name)
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(Title)
ATTEST:
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AGREE:
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R.'Lycra tles fontncti lia)Mb.n Ilestoncal hewn anon Agreement I ctte,Agtcc tectitIRcluin:nun do
44