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Ordinance No. 11,983ORDINANCE NO. 11,983 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE A CONTRACT FOR CONSULTING SERVICES WITH HAWES HILL CALDERON LLP, FOR SERVICES RELATED TO THE CREATION OF A PUBLIC IMPROVEMENT DISTRICT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED THIRTY -FIVE THOUSAND FIVE HUNDRED AND NO /100 DOLLARS ($35,500.00); MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section I: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute a Contract for Consulting Services with Hawes Hill Calderon LLP, for services related to the creation of a public improvement district. A copy of said agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to Hawes Hill Calderon LLP, in an amount not to exceed THIRTY -FIVE THOUSAND FIVE HUNDRED AND NO /100 DOLLARS ($35,500.00) in accordance with the contract authorized in Section 1 hereof. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by FIFTY THOUSAND AND NO /100 DOLLARS ($50,000.00) or less, provided that the amount authorized in Section 2 hereof may not be increased by more than twenty-five percent (25 %). Section 4: This ordinance shall take effect immediately froo and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative y6te of the City Council of the City of Baytown this the 26'" day of July, 2012. Za = ATTEST• -, ;�1 j0 ��� ST PHEN H. DONCARLOS, Mayor NM00 � NACIO RAMIREZ, SR., City me tt \ \Cobfs0I \1ega1\Karen \Fi1es \City Council\0rdinwces\2012Uu1y 26V iawesliillCalderonOrdinance.doc Exhibit "A" AGREEMENT BY AND BETWEEN CITY OF BAYTOWN AND HAWES HILL CALDERON LLP This agreement is made by and between the City of Baytown (the "Client") and Hawes Hill Calderon LLP (the "Contractor "). Lnlifi�l�3�;� WHEREAS, the Client desires that the Contractor provide it with certain professional services related to the creation of a public improvement district; and WHEREAS, the Contractor has the employees, office operations, and knowledge to ably provide the professional services required by the Client; and NOW THEREFORE, for and in consideration of the premises and mutual covenants and agreements herein contained, it is agreed as follows: Engagement of Contractor The Client hereby engages the Contractor, and the Contractor hereby agrees to provide, furnish, or perform certain professional services with respect to the creation of a public improvement district, including the services described on Exhibit A, annexed hereto and incorporated herein for all intents and purposes. Such services herein collectively referred to as the "Services." II. Compensation and Reimbursement to Contractor For and in consideration of the professional services to be performed by the Contractor specified in Exhibit "A," Scope of Professional Consulting, of this Agreement, the Client agree to pay the Contractor a fixed fee of THIRTY - FIVE THOUSAND AND NO /100 DOLLARS ($35,000.00) to be paid in the following manner: SIGNING OF CONTRACT $ 5,000.00 THE DATE CITY COUNCIL PASSES CREATION RESOLUTION $15,000.00 THE DATE THAT COUNCIL APPROVES SERVICE & ASSESSMENT PLAN & LEVIES ASSESSMENT $15,000.00 TOTAL $35,000.00 Payment will be due within thirty (30) days of receipt of an invoice or completion of each event specified hereinabove, whichever is later. Reimbursable out -of- pocket expenses and other expenses and charges incurred by the Contractor in performing the Services under this Agreement shall be made on a monthly basis upon submission by the Contractor of invoices and other documentation setting forth such expenses and charges; provided, however, all expenses and charges proposed to be incurred by the Contractor for the performance of the Services shall be subject to the Client's prior written approval. The Schedule of Maximum Charges and Rates of Hawes Hill Calderon LLP for the performance of the Services by the Contractor under this Agreement as set forth on Exhibit "B" attached hereto for reference are hereby approved by the Client. The Client expressly disclaims any liability for and the Contractor agrees that the Client shall not be liable for reimbursement to the Contractor of any amounts in excess of those approved in writing by the Client. The parties agree that reimbursable expenses shall not exceed FIVE HUNDRED AND NO /100 DOLLARS ($500.00). The Contractor shall tender to the Client a detailed invoice of the services performed and the allowable reimbursable expenses incurred to the Client each month during the term of this Agreement. Payments for professional services shall be rendered in accordance with the above payment schedule, and reimbursable expenses incurred shall be made within 30 days after the Client receives Contractor's detailed invoice therefor. In the event of a disputed or contested invoice, the Client may withhold any such disputed or contested amount without penalty. III. Right of Ownership All data, information, maps, books, reports, files, photography, artwork, software, equipment, and materials purchased, created or maintained by the Client or purchased, created or maintained by the Contractor on behalf of the Client shall remain the property of the Client. It shall be clearly marked as property of the Client in such manner that it may at any time be removed from the premises of the Contractor. IV. Laws to be Observed In performing its obligations under this Agreement, the Contractor at all times shall observe and comply with all federal and state laws, local laws, ordinances, orders, and regulations of the federal, state, county, or city governments. The federal, state, and local laws, ordinances, and regulations which affect those engaged or employed in the work, or the equipment used in the work, or which in any way affects the conduct of the work, shall be at all times in effect, and no pleas of misunderstanding will be considered on account of ignorance thereof. V. Successors and Assigns 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 hereto without first obtaining the written consent of the other party. Nothing herein shall be construed as creating any personal liability on the part of any officer or director of the Client. VI. Character of Workers and Work The 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. Contractor shall perform its obligations under this Agreement as an independent contractor and not as an employee of the Client. The employees provided by the Contractor shall be competent and careful workers skilled in their respective trades. In performing its obligations under this Agreement, the Contractor shall not employ any person who engages in misconduct or is incompetent or negligent in the performance of his or her duties. The Client retains the right to require the Contractor to remove from the performance of services provided for under this Agreement any employee who engages in (1) unethical or unprofessional conduct, (2) misconduct or other discourtesies toward the public, (3) conduct inconsistent with sound business practices or (4) other conduct inconsistent with the performance of work in an acceptable manner and at a satisfactory rate of progress to the Client. Nothing herein is intended to, and the parties agree that this Agreement does not, create any third party beneficiary rights for any employee or other person. It is intended that any employee who engages in any services provided for under this Agreement is an employee -at -will of the Contractor. VII. Conflict of Interest In keeping with Contractor's duties to the Client, Contractor agrees that it shall not, directly or indirectly, become involved in any conflict of interest, or upon discovery thereof, allow such a conflict to continue. Moreover, Contractor agrees that it shall promptly disclose to the Client any facts that might involve any reasonable possibility of a conflict of interest. VIII. Term and Termination Either party may terminate this Agreement at any time by giving the other party at least 30 days' notice thereof. If this Agreement is cancelled by Client, Client agrees to reimburse the Contractor for all fees and expenses incurred in good faith that are unpaid at the time notice of termination is given, including all work products completed or in- process, not to exceed the maximum amount payable for the unfinished task under this Agreement. Upon delivery of notice of termination by the Client without cause, the Contractor shall discontinue all services in connection with the performance of the Agreement. Within ten (10) days after receipt of the notice of termination, the Contractor shall submit a final statement showing in detail the services satisfactorily performed and accepted and all other appropriate documentation required herein for payment of services. At the same time that the final statement is tendered to the Client, the Contractor shall also tender all of the Contractor's work product, whether complete or not, in an acceptable form and format to the Client. No final payment will be made until all work product is so tendered. Either party shall have the right to terminate this Agreement if the other party is in default of any obligation hereunder and such default is not cured within thirty (30) days of receipt of a written notice specifying such default. In the event of such a termination, the Client shall reimburse the Contractor for all work that had been satisfactorily completed prior to such termination. If Client terminates this contract for the default of the Contractor, the Client shall be able to withhold from payment the sums reasonably necessary to complete the services left unperformed by the Contractor. The Client shall have a perpetual, nontransferable, paid -up right and license for purposes of its internal business to use, copy, modify and prepare derivative works of the deliverable items developed by the Contractor in the course of the Services pursuant to this Agreement, whether jointly or individually. IX. Amendment or Modification Except as otherwise provided in this Agreement, this Agreement shall be subject to change, amendment, or modification only upon the written consent of the parties hereto. X. Disclaimer of Political Support or Affiliation The Client expressly disclaims any political support or affiliation with the Contractor. Further, the Client prohibits the Contractor, and the Contractor hereby agrees to comply with such prohibition, from expending any funds, directly or indirectly on any political candidate, cause, party, organization or activity. XI. General Provisions A. 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. However, in the event of service interruption or hazardous conditions, neither party will delay remedial action pending the receipt of formal notice. For the purpose of notice, the address of the parties shall, until changed as hereinafter provided, be as follows: If to the Client, to City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 Fax: (281) 420 -6586 If to the Contractor, to Hawes Hill Calderon LLP 10103 Fondren Road, Suite 300 Houston, Texas 77096 Fax: (713) 595 -1295 The parties shall have the right from time to time and at any time to change their respective addresses and each shall have the right to specify as its address any other address, provided at least fifteen (15) days' written notice is given of such new address to the other parties. B. Regulatory Agencies. This Agreement shall be subject to all present and future valid laws, orders, rules and regulations of the United States of America, the State of Texas, and of any regulatory body having jurisdiction. C. 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. D. 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. E. Captions. The captions appearing 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. F. 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. G. Merger. This Agreement embodies the entire understanding and agreement between the parties, and there are no prior effective representations, warranties or agreements between the parties. This Agreement contains all the agreements of the parties relating to the subject matter hereof and is the full and final expression of the agreement between the parties. H. 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. I. Insurance. The Contractor shall procure and maintain at its sole cost and expense for the duration of the Agreement, insurance against claims for injuries to person or damages to property which may arise from or in connection with the performance of the Work hereunder by THE CONTRACTOR, its agents, representatives, volunteers, employees or subconsultants. 1. The Contractor's insurance coverage shall be primary insurance with respect to the Client, its officials, employees and agents. Any insurance or self- insurance maintained by the Client, its officials, employees or agents shall be considered in excess of the Contractor's insurance and shall not contribute to it. Further, THE CONTRACTOR shall include all subconsultants, agents and assigns as additional insureds under its policy or shall furnish separate certificates and endorsements for each such person or entity. All coverages for subconsultants and assigns shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this Agreement: a. Commercial General Liability ■ General Aggregate: $1,000,000 ■ Products & Completed Operations Aggregate: $1,000,000 ■ Personal & Advertising Injury: $1,000,000 ■ Per Occurrence: $1,000,000 ■ Fire Damage $50,000 ■ Coverage shall be at least as broad as ISO CG 00 02 12 07 ■ No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. b. Umbrella Liability ■ General Aggregate: $1,000,000 ■ Per Occurrence: $1,000,000 C. Business Automobile Policy ■ Combined Single Limits: $1,000,000 ■ Coverage for "Any Auto" d. Errors and Omissions ■ Limit: $500,000 for this project. ■ Claims -made form is acceptable ■ Coverage will be in force for one (1) year after construction of the Project is completed. e. Workers' Compensation ■ Statutory Limits ■ Employer's Liability $1,000,000 ■ Waiver of Subrogation required. 2. The following shall be applicable to all policies of insurance required herein. a. Insurance carrier for all liability policies must have an A.M. Best Rating of B +:VIII or better. b. Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. C. Liability policies must be on occurrence form. Errors and Omissions can be on claims -made form. d. 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 Client. e. The Client, its officers, agents and employees are to be added as Additional Insureds to all liability policies, with the exception of the Errors and Omissions Policy and Workers' Compensation required herein. f. Upon request and without cost to the Client, certified copies of all insurance policies and /or certificates of insurance shall be furnished to the Client. g. Upon request and without cost to the Client, loss runs (claims listing) of any and /or all insurance coverages shall be furnished to the Client. h. All insurance required herein shall be secured and maintained in a company or companies satisfactory to the Client, and shall be carried in the name of the Contractor. The Contractor shall provide copies of insurance policies required hereunder to the Client on or before the effective date of this Agreement. J. No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the Client and the Contractor hereby agree that no claim or dispute between the Client and the Contractor 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 Client is subjected to an arbitration proceeding notwithstanding this provision, the Contractor consents to be joined in the arbitration 6 proceeding if the Contractor's presence is required or requested by the Client for complete relief to be recorded in the arbitration proceeding. K. Release. By this Agreement, the Client does not consent to litigation or suit, and the Client hereby expressly revokes any consent to litigation that it may have granted by the terms of this Contract 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 Client's sovereign immunity. The Contractor assumes full responsibility for its work performed hereunder and hereby releases, relinquishes and discharges the Client, 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 Contractor's work to be performed hereunder. This release shall apply with respect to the Contractor's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. L. 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. M. Authority. The officers executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he /she represents. N. Agreement Read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 0. Multiple 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. AGREED AND ACCEPTED THIS On Behalf of the Contractor: By: Name: David W. Hawes Managing Partner Hawes Hill Calderon LLP And on Behalf of Client: DAY OF 12012. By: Name: Robert D. Leiper City Manager City of Baytown Exhibit "A" Scope of Professional Consulting Services The services are broken down into three distinct goals: a) pre- creation activities, or those activities associated with financial analyses and the development of petitions and related materials; b) the creation activities, or all actions required by the statute in order to create the public Improvement district ( "PID "); and c) the creation and activation of the PID Service and Assessment Plan and Assessment Rolls. Pre - Creation Activities for Public Improvement District • Prepare an initial analysis of the proposed PID area. The analysis will include: a) a complete review of all land development plans in the proposed area; and b) existing land uses; • Prepare a recommended boundary map of the area and related maps that set forth the proposed land uses, utilities, infrastructure (current and proposed) and other CIP information (if available) for the PID; • Prepare an ongoing financial analysis regarding PID revenue and cash flow as it relates to reimbursement of capital costs, and revise as necessary; • Prepare a petition to be signed by property owner of record requesting the creation of a public improvement district. The petition will state: a) the general nature of the proposed improvements; b) the estimated costs of the improvements; c) the boundaries of the proposed assessment district; d) the proposed method of assessment, which may specify included or excluded classes of assessable property; e) the proposed apportionment of cost between the public improvement district and the municipality as a whole; f)whether the management of the district is to be by the Client, the private sector, or a partnership between the Client and the private sector; g) that the persons signing the petition request or concur with the establishment of the district; and h) that an advisory board may be established to develop and recommend an improvement plan to the governing body of the Client; • As needed, conduct meetings with elected officials /staffs of the Client regarding the PID creation /development strategy. Provide financial impact information to each and work with any elected body committees to review the proposed creation and how it will impact the Client's economic development goals and objectives; and • Conduct a workshop (if necessary) with the City Council on the creation of the PID. Present the proposed development strategy, the process for creating the PID and the administrative issues associated with implementation of the service and assessment plan and serve as support staff to Client's staff in their role as advisors to the elected leadership. Creation of the Public Improvement District • Prepare a public notice for the purpose of conducting a public hearing to create a PID. The notice will include: a) the time and place of the hearing; b) the general nature of the proposed improvements; c) the estimated costs of the improvements; d) the boundaries of the proposed assessment district; e) the proposed method of assessment, which may specify included or excluded classes of assessable property; and f) the proposed apportionment of cost between the public improvement district and the municipality as a whole; • Assist the Client in conducting a public hearing on the advisability of creating a public improvement district; • Prepare and deliver to the Client's Legal Department a resolution of "finding of Fact" to be adopted by the governing body of the Client as to the advisability of the improvement; and • Prepare and deliver to the Client's Legal Department a Resolution to be adopted by the governing body of the Client authorizing the district in accordance with its findings as to the advisability of the improvement. PID Service and Assessment Plan, Assessment Rolls • Prepare an ongoing PID Service and Assessment Plan of at least five years that defines the annual indebtedness and the projected costs for improvements; • Prepare a proposed and final PID assessment role; • Prepare a public notice, CAD certified mailing list, and provide copies of the service and assessment plan with the notice for the Client's City Secretary for publication and transmittal to affected property owners for purpose of conducting a public hearing to take testimony concerning the assessment roll; • Prepare and deliver to the Client's Legal Department the service and assessment plan ordinance. The ordinance will include all items required in Chapter 372 of the Local Government Code; and • Prepare and deliver to the Client's Legal Department the assessment ordinance for the PID Plan. The ordinance will include all items required in Chapter 372 of the Local Government Code, Exhibit "B" Schedule of Maximum Charges and Rates Professional consulting fixed fee: $35,000.00 Out -of- pocket expenses including, without limitation, the following: actual cost • prints, photocopies, reproductions, graphics, art supplies • postage, deliveries • posting, filing and submittal fees • publication of public notices • parking fees and tolls • travel, lodging and incidentals • city review fee Automobile mileage directly attributable to this project shall be charged at the current rate allowable under Internal Revenue Service regulations. 1