Loading...
Ordinance No. 11,770ORDINANCE,' NO. 11,770 AN ORDINANCE OFT] IL CITY COUNCIL 01-11 IE CITY OFBAYT OWN, 17EXAS, Aut-HORIZING THE KILGOR' PARKWAY WA,rr,,RLINE AGREEMENr wrrit CHAMBERS COLJN,rY IMPROVEME.NT DISTRICT NO. 3, AUTIJORIZING PAYME,M" BY T] [F CITY OF BAYT(MN OF AN AMOUNT NOT TO EXCE"El.) THREE HUNDREDTHOIJSAND AND NO/100 DOLLARS ($300,000.00)-, MAKING OTI*."R PROVISIONS RELATED THERETO; AND PROVIDING FOR FTFECTIVE DATIL' TJ-1L1R1-`OF`. * * ** **A * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 4: * * * * * * * * * * * 4, * * * * * * * * * * * * * * * * * * * * * * * * * * * * 13E IT ORDAINED BYTHE CITY COUNCIL 01"TI-IE CITY OF BAYTOWN,TEXAS: Section 1: That the City Council of the City of Baytown,'I'mas, hereby authorizes the City Manager to execute the Kilgore Parkway Waterline Agreement with Chambers County Improvement District No. 3. A copy of said ag reement is attached hereto as Exhibit "A,"and incorporated herein for all z:1 intents and purposes. Section 2: That the City Council of the Cit.), ol'Naytown authorizes payment to Chamber•s COUnty Improvement District No, 3 of an aniount not to exceed TIJRI.1.I E 1-1 UN DRED THOUSAND AND NO/ 100 DOLLARS ($300,000.00) pursuant to the Agreement. Section 1 '1 1 hat the City, Manager is hereby granted general authority to approve any change order involving a decrease or an increase in costs of FIFTY THOUSAND AND NO/100 DOLLARS ($50,,000.00) or less; however, the original contract price may not be increased by more than twenty-five percent (25%) or decreased by more than twenty-five, percent (25%) without the consent of the contractor to such decrease. Section 4: This ordinance shall take clTect immediately from and after its passage by the CjtyC(MnCil of the City of Baytown, INTRODUCE,"D, READ and PASSI.-J) by the affirmative vote lle City Council of the City of Baytown this the I I "' day of October, 2011. �f APPROVED ASTO FORM: --16 ICA M11 Z o ey HE'N H. DONCARLOS, Mayor lepl KmenTiles 0 1 v C'm I ICT I, 47jdmances'201 V Oct ohet I I ("Cl I gmeWatci L moAgukmima doe Exhibit "A" KILGORE PARKWAY WATERLINE AGREEMENT BETWEEN THE CITY OF BAYTOWN, TEXAS AND CHAMBERS COUNTY IMPROVEMENT DISTRICT NO.3 KILGORE PARKWAY WATERLINE AGREEMENT BETWEEN THE CITY OF BAYTOWN, TEXAS, AND CHAMBERS COUNTY IMPROVEMENT DISTRICT NO.3 This Agreement (the "Agreement ") is made and entered into effective as of the day of , 2011, by THE CITY OF BAYTOWN, TEXAS (the "City "), a home -rule municipality located in Chambers and Harris Counties, Texas, acting by and through its governing body, the City Council of Baytown, Texas; and CHAMBERS COUNTY IMPROVEMENT DISTRICT NO. 3, a municipal utility district created pursuant to Article XVI, Sections 52 and 59, Texas Constitution (the "District "). RECITALS WHEREAS, the District consists of approximately 880.30 acres of land in Chambers County, Texas, and described in Exhibit A (the "Property "). A boundary map and vicinity map of the Property are attached as Exhibit "A "; and WHEREAS, the City and the District agree that the construction of the Project can best proceed pursuant to this Agreement; and NOW, THEREFORE, for and in consideration of the mutual agreements, covenants, and conditions contained herein, and other good and valuable consideration, the City and the District agree as follows: ARTICLE I. DEFINITIONS Section 1.01 Terms. Unless the context requires otherwise, and in addition to the terms defined above, the following terms and phrases used in this Agreement shall have the meanings set out below: Agreement means this Agreement between the City and the District. City means the City of Baytown, Texas. City Manager means the City Manager of the City or his designee. District means Chambers County Improvement District No. 3, a municipal utility district created by Senate Bill 2512, as passed by the 81' Legislature, Regular Session, effective May 27, 2009, that encompasses all of the Property, the purposes of which are to supply a public water supply, sanitary sewer services, drainage services, fire protection, and/or roads and to exercise all powers granted to such district under the laws of the State of Texas. Party or Parties means a party or parties to this Agreement. Project means the sixteen -inch waterline together with associated appurtenances to be constructed along the right -of -way of Kilgore Parkway east from State Highway 146 to the water meter to be located in Kilgore Parkway on the west side of the District's boundary, as shown and Kilgore Parkway Waterline Agreement, Page 1 depicted on Exhibit B, attached hereto and incorporated herein by reference for all purposes. Property means all the land described in the attached Exhibit A, which is incorporated herein for all intents and purposes. ARTICLE II. WATERLINE Section 2.01 Kilgore Parkway Waterline Upsizing Project. Subject to and upon the terms, provisions and conditions hereinafter set forth, the Parties hereto agree that the diameter of the waterline to be constructed along the right -of -way of Kilgore Parkway east from State Highway 146 to the Grand Parkway to serve land within the District, as shown and depicted on Exhibit B, shall be increased from a twelve -inch line to a sixteen -inch line in accordance with the following terms and conditions. The District shall have the following obligations with respect to this upsizing project: (a) The District agrees that it will at its own cost and expense employ one or more professional engineers ( "District's Engineer ") to design the Project. (b) The District agrees to comply with all laws, rules or regulations of the City and other applicable governmental authorities, in order to make the waterline described hereinabove meet or exceed the quality standards set by such governmental authorities. (c) The District shall be obligated to submit plans and specifications for the construction of the Project (the "Plans and Specifications ") no later than ten (10) calendar days after all of Kilgore Parkway right -of -way where the Project is to be located has been dedicated to and accepted by Chambers County, to the City Engineer, for approval and/or for required revision and approval by the City Engineer prior to bidding the Project. The District agrees that the Plans and Specifications shall include the construction and installation of both a twelve -inch (12 ") diameter and a sixteen -inch (16 ") diameter water line together with related improvements. The District shall bid such upsizing as an alternate bid item. (d) Within ten (10) calendar days, after dedication of Kilgore Parkway right -of -way to, and acceptance by, Chambers County, and the City Engineer approves the Plans and Specifications and Chambers County has issued a permit allowing the Project to be constructed within the Kilgore Parkway right -of -way, the District shall advertise, or cause advertisement, for bids and within forty -five (45) calendar days thereafter shall let the construction contract for the Project in accordance with the requirements of all applicable laws, including, but not limited to, Chapter 49 Texas Water Code, as amended. The City shall have the right at any time to inspect the Project as it is constructed. Construction of the Project shall be completed within one hundred fifty (150) calendar days of the contract award. Kilgore Parkway Waterline Agreement, Page 2 (e) The City's share of the costs of the Project shall be the difference between the cost of installing the a sixteen -inch (16 ") diameter water line and the cost of installing the twelve -inch (12 ") diameter water line, as determined by the bid alternate. . The City's share of the costs of the Project shall be due and payable within thirty (30) days of the City's receipt of an invoice from the District. Such amount shall be adjusted upon completion of the Project based upon the actual cost of the construction of the Project. The City's proportionate share of such cost shall be determined based upon the quotient obtained when dividing the amount required to be paid by the City by the bid received from the lowest responsible bidder prior to the start of construction. If any monies are due the City, the District shall pay the same within thirty (30) days of completion of the Project. If monies are due the District, the City shall pay the same within thirty (30) days of the City's receipt of an invoice from the District. (f) Upon completion of the Project and acceptance thereof by the City as being in compliance with the Plans and Specifications and the applicable codes of the City, the District shall convey title to the Project, and all appurtenances related thereto, and shall assign any permits obtained to use the rights -of -way to the City in form acceptable to the City, without cost or expense to the City, and thereafter, the City will own, operate and maintain the Project. If any easements are needed for the Project in addition to the Kilgore Parkway right -of -way, the District shall acquire same and convey them to the City. The City will operate and maintain the Project from SH 146 up to the District's master meter located on Kilgore Parkway on the west side of the District's boundary. The District shall own, operate and maintain any water line extended east of the master meter to Property within its boundaries. As part of the conveyance of the Project, the District shall convey a maintenance /access road with restricted access for maintenance of the Project form SH 146 to the master meter. The road shall be above the 500 -year flood elevation, designed using sound engineering principles and practices. Once the District conveys title as described hereinabove, the District shall have no right or privilege to remove or interfere with any part or portion of the Project. Notwithstanding the foregoing, the Parties agree that 870,000 gallons per day ( "gpd "), average daily flow, and 3,828,000 gpd, peak hour flow, shall be reserved to the District for providing water supply within the boundaries of the District. This reservation provision shall expire upon the execution of a utility agreement between the parties. (g) Upon request of the City, the District shall provide copies to the City of pay estimates, inspection reports, testing reports, certificate of substantial completion, and evidence of payment regarding the costs of the Project. ARTICLE III BREACH, NOTICE AND REMEDIES Section 3.01 Breach of Agreement. (a) It is the intention of the Parties to this Agreement that the Project be constructed in Kilgore Parkway Waterline Agreement, Page 3 accordance with the terms of this Agreement. (b) The Parties acknowledge and agree that any deviation by the City or by the District from the terms of this Agreement would frustrate the intent of this Agreement and, therefore, would be a breach of this Agreement. (c) In the event that a Party to this Agreement believes that the other Party has, by act or omission, committed a breach of this Agreement, the provisions of this Article III shall provide the remedies for such default. Section 3.02 Notice of District's Default; Right to Cure. (a) The City shall notify the District in writing of an alleged failure by the District to comply with a provision of this Agreement, which notice shall specify the alleged failure with reasonable particularity. The District shall, within thirty (30) days after receipt of such notice or such longer period of time as the City may specify in such notice, either cure such alleged failure or, in a written response to the City, either present facts and arguments in refutation or excuse of such alleged failure or state that such alleged failure will be cured and set forth the method and time schedule for accomplishing such cure. (b) The City Manager shall determine (i) whether a failure to comply with a provision has occurred; (ii) whether such failure is excusable; and (iii) whether such failure has been cured or will be cured. The District shall make available and deliver to the City, if requested, any records, documents or other information necessary to make the determination without charge. (c) If the City Manager determines that a failure to comply with a provision has occurred and that such failure is not excusable and has not been or will not be cured in a manner and in accordance with a schedule satisfactory to the City, then the City Manager may terminate this Agreement and/or exercise any other rights or remedies available hereunder or as a matter of law. Section 3.03 Notice of City's Default; Right to Cure. (a) The District shall notify the City in writing of an alleged failure by the City to comply with a provision of this Agreement, which notice shall specify the alleged failure with reasonable particularity. The City shall, within 30 days after receipt of such notice or such longer period of time as the District may specify in such notice, either cure such alleged failure or, in a written response to the District, either present facts and arguments in refutation or excuse of such alleged failure or state that such alleged failure will be cured and set forth the method and time schedule for accomplishing such cure. (b) The District shall determine (i) whether a failure to comply with a provision has occurred; (ii) whether such failure is excusable; and (iii) whether such failure has been cured or will be cured by the City. The City shall make available and deliver to the Kilgore Parkway Waterline Agreement, Page 4 District, if requested, any records, documents or other information necessary to make the determination without charge. (c) If the District determines that a failure to comply with a provision has occurred and that such failure is not excusable and has not been or will not be cured by the City in a manner and in accordance with a schedule reasonably satisfactory to the District, then the District may take any appropriate action to enforce this agreement at law or in equity. ARTICLE IV BINDING AGREEMENT, TERM, AMENDMENT, AND ASSIGNMENT Section 4.01 Assignment. Neither Party shall assign this Agreement without first obtaining the written consent of the other Party. 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 Parties and their respective successors and assigns. Section 4.02 Notice. The Parties contemplate that they will engage in informal communications with respect to the subject matter of this Agreement. However, any formal notices or other communications ( "Notice ") required to be given by one Party to another by this Agreement shall be given in writing addressed to the Party to be notified at the address set forth below for such Party: (a) by delivering the same in person; (b) by depositing the same in the United States Mail, certified or registered, return receipt requested, postage prepaid, addressed to the Party to be notified; (c) by depositing the same with Federal Express or another nationally recognized courier service guaranteeing "next day delivery," addressed to the Party to be notified; or (d) by sending the same by facsimile with confirming copy sent by mail. Notice shall be effective only if and when received by the Party to be notified. For the purposes of notice, the addresses of the Parties, until changed as provided below, shall be as follows: City: City of Baytown, Attn: City Manager, P. O. Box 424 Baytown, Texas 77522 (fax) 281- 420 -5891 With a Copy to: City of Baytown, Attn: City Attorney, P. O. Box 424 Baytown, Texas 77522 (fax) 281- 420 -6586 District: Chambers County Improvement District No. 3 1300 Post Oak Boulevard, Suite 1400, Houston, Texas 77056 Attn: Peter T. Harding (fax) 713- 623 -6143 With a Copy to: Mr. Joe Moody, Parkside Capital 3003 W. Alabama, Houston, Texas 77098 (fax) 713- 773 -5556 The Parties shall have the right from time to time to change their respective addresses, and each shall have the right to specify as its address any other address within the United States of America by giving at least 5 days written notice to the other Parties. If any date or any period provided in this Agreement ends on a Saturday, Sunday, or legal holiday, the applicable period for calculating the notice shall be extended to the first business day following such Saturday, Kilgore Parkway Waterline Agreement, Page 5 Sunday or legal holiday. Section 4.03 Time. Time is of the essence in all things pertaining to the performance of this Agreement. Section 4.04 Severability. If any provision of this Agreement is illegal, invalid, or unenforceable under present or future laws, then, and in that event, it is the intention of the Parties hereto that the remainder of this Agreement shall not be affected. Section 4.05 Waiver. Any failure by a Party hereto to insist upon strict performance by the other Party of any provision of this Agreement shall not be deemed a waiver thereof or of any other provision hereof, and such Party shall have the right at any time thereafter to insist upon strict performance of any and all of the provisions of this Agreement. Section 4.06 Applicable Law and Venue. The construction and validity of this Agreement shall be governed by the laws of the State of Texas without regard to conflicts of law principles. Exclusive venue shall be in Harris County, Texas, and all Parties consent to venue in Harris County. Section 4.07 Reservation of Rights. To the extent not inconsistent with this Agreement, each Party reserves all rights, privileges, and immunities under applicable laws, including sovereign immunity. Section 4.08 Further Documents. The Parties agree that at any time after execution of this Agreement, they will, upon request of another Party, execute and deliver such further documents and do such further acts and things as the other Party may reasonably request in order to effectuate the terms of this Agreement. Section 4.09 Incorporation of Exhibits and Other Documents by Reference. All Exhibits and other documents attached to or referred to in this Agreement are incorporated herein by reference for the purposes set forth in this Agreement. Section 4.10 Effect of State and Federal Laws. Notwithstanding any other provision of this Agreement, Developer, its successors or assigns, shall comply with all applicable statutes or regulations of the United States and the State of Texas, as well as any City ordinances, and any rules implementing such statutes or regulations. Section 4.11 Authority for Execution. The City hereby certifies, represents, and warrants that the execution of this Agreement is duly authorized and adopted in conformity with the City Charter and City ordinances. The District hereby certifies, represents, and warrants that the execution of this Agreement is duly authorized and adopted in conformity with the requirements of state law. Section 4.12 Term. This Agreement shall be effective from the effective date specified herein and shall expire two (2) years from the effective date, or upon completion of the Project, whichever first occurs. If the City has not accepted the Project before the expiration of the term, Kilgore Parkway Waterline Agreement, Page 6 the City shall have the right, at its sole discretion, either to extend the term and require the District to complete the improvements or to fully refund all monies provided by the City pursuant to Section 2.01 hereinabove within thirty (30) days from the expiration of the term. Section 4.13 Remedies Cumulative. All rights and remedies of the City and/or the District under this Agreement shall be cumulative and none shall exclude any other rights or remedies allowed by law. Section 4.14 Amendments. This Agreement may not be altered, changed or amended, except by an instrument in writing, signed by both parties hereto. Section 4.15 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the City and the District hereby agree that no claim or dispute between the City and the District 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 that the City is subjected to an arbitration proceeding notwithstanding this provision, the District consents to be joined in the arbitration proceeding if the District's presence is required or requested by the City for complete relief to be recorded in the arbitration proceeding. Section 4.16 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. Section 4.17 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. Section 4.18 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. Section 4.19 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. Section 4.20 Gender and Number. The pronouns of any gender shall include the other genders, and either the singular or the plural shall include the other. Section 4.21 Agreement Read. The Parties acknowledge that they have read, understand and intend to be bound by the terns and conditions of this Agreement. Kilgore Parkway Waterline Agreement, Page 7 IN WITNESS WHEREOF, the undersigned Parties have executed this Agreement effective as of the day of , 20 ATTEST: iM Leticia Brysch, City Clerk APPROVED AS TO FORM: M. Ignacio Ramirez, Sr., City Attorney THE STATE OF TEXAS § COUNTY OF HARRIS § CITY OF BAYTOWN, TEXAS Robert D. Leiper, City Manager CHAMBERS COUNTY IMPROVEMENT DISTRICT NO. 3 By: President, Board of Directors This instrument was acknowledged before me on this day of 20� by , the President of Chambers County Improvement District No. 3, on behalf of said District. Notary Public in and for The State of T E X AS (SEAL) \ \Cobsrvl \legal \Karen \Files \Contracts \CCID O WaterlineAgreementFNAL.rtf Kilgore Parkway Waterline A%treement, Page 8