Ordinance No. 12,317ORDINANCE NO. 12,317
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING THE INTERLOCAL AGREEMENT FOR A
STREET, UTILITIES, AND LIFT STATION ASSOCIATED WITH THE NEW
ELEMENTARY SCHOOL NEXT TO VICTORIA WALKER ELEMENTARY
SCHOOL WITH THE GOOSE CREEK CONSOLIDATED INDEPENDENT
SCHOOL DISTRICT; AND PROVIDING FOR THE EFFECTIVE DATE
THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes
the Mayor to execute and the City Clerk attest to the Interlocal Agreement for a Street, Utilities,
and Lift Station associated with the New Elementary School next to Victoria Walker Elementary
School with the Goose Creek Consolidated Independent School District. A copy of said
agreement is attached hereto as Exhibit "A," and incorporated herein for all intents and purposes.
Section 2: This ordinance shall take effect immediately from and after its passage by
the City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative v , e of the City Council of the
City of Baytown this the 22 "d day of August, 2013. i
ATTEST:
APPROVED AS TO FORM:
ACIO RAMIREZ, SR., y Attorney
R: \Karen \Files \City Counci1\0rdinances\20I3\August 22\ GCCI SDInterlocal4VictoriaWalker.doc
H. DONCARLOS,
Exhibit "A"
INTERLOCAL AGREEMENT
FOR A STREET, UTILITIES, AND LIFT STATION
ASSOCIATED WITH THE NEW ELEMENTARY
SCHOOL NEXT TO VICTORIA WALKER
ELEMENTARY SCHOOL
STATE OF TEXAS §
COUNTY OF HARRIS §
WHEREAS, this Interlocal Agreement for a Street, Utilities, and Lift Station Associated
with the New Elementary School next to Victoria Walker Elementary School, hereinafter called
"Agreement," is made and entered into by and between the Goose Creek Consolidated
Independent School District, an independent school district and political subdivision of the State
of Texas, hereinafter called "District" and the City of Baytown, a municipal corporation located
in Harris and Chambers Counties, Texas, hereinafter called "City."
WITNESSETH:
WHEREAS, the District plans on constructing a new elementary school next to Victoria
Walker Elementary School, which is located at 4711 Seabird Street, Baytown, TX 77521 (the
"New School "); and
WHEREAS, neither sufficient access nor sufficient sanitary sewer services are currently
available at the site of the New School; and
WHEREAS, to endeavor to ensure that such services and access will be available at the
time of the scheduled opening of the New School in the Fall of 2014; the District wishes:
1. To convey property to the City for the realignment and extension of Eastpoint Blvd
from Seabird Street northward;
2. To convey necessary utility easements for the realignment of the utilities along the
new alignment of Eastpoint Blvd; and
3. To convey property to the City for a lift station on the west side of Eastpoint Blvd;
and
WHEREAS, the District is agreeable to engaging design professionals to design and
construct the street, utilities and lift station as necessary to provide access and services to the
New School (the "Project ") under the terms and conditions stated herein; and
WHEREAS, the City is agreeable to engaging a construction firm for the Project under
terms and conditions stated herein;
Interlocal Agreement, Page 1
WHEREAS, the District and the City have found it will increase the efficiency and
effectiveness of their respective entities as required by Section 791.001, et seq. of the Texas
Government Code, the Texas Interlocal Cooperation Act ( "the Act "), and will be in their best
interests and the interest of the public to cooperate in creating the Project; and
NOW THEREFORE, in consideration of the mutual covenants, agreement and benefits to
both parties, it is agreed as follows:
I.
DISTRICT'S RESPONSIBILITIES
1.01 Conveyances. In consideration of the mutual covenants and agreements of this
Agreement, the District agrees:
(a) To convey property to the City for (i) the realignment and extension of Eastpoint
Blvd from Seabird Street northward to a mutually agreeable point past the
driveway for the New School together with (ii) for an 8' wide sidewalk to be
constructed on the east side of the realigned Eastpoint Blvd and the possible
future road alignment of Eastpoint Blvd to connect the realigned Eastpoint Blvd
to the existing Eastpoint Blvd in Eastpoint Subdivision, Section l;
(b) To convey necessary utility easements for the realignment of the utilities along
the new alignment of Eastpoint Blvd. at a point and location mutually agreeable to
both parties as reflected in Exhibit 2 "EX2 "; and
(c) To convey property to the City for a lift station on the west side of Eastpoint Blvd. at
a point and location mutually agreeable to both parties as reflected in EX 2.
The City and the District shall mutually agree on the boundaries of the properties, which
the District is required to convey to the City pursuant to this section; however, the
boundaries shall generally be those as depicted in Exhibit 2 "EX -2," which is attached
hereto and incorporated herein for all intents and purposes (collectively the "Property ").
All the expenses associated with the conveyances of the Property contemplated in this
section, including, but not limited to, the preparation and processing of the replat of the
Property showing the realignment of the Eastpoint Blvd. and the utility easements, all
documents and metes and bounds descriptions necessary for the conveyances, and
recording costs, shall be borne exclusively by the District. The Parties understand and
agree that the replat of the property and the conveyance by special warranty deed of the
lift station site shall be complete and filed of record prior to the occupancy of the New
School. The completion of these conveyances shall be a condition precedent to the
issuance of a certificate of occupancy by the City.
1.02 Professional Services. The District agrees to engage competent, experienced design
professionals for the design, administration, oversight and inspection services pertaining
Interlocal Agreement, Page 2
to the road, sidewalk, utilities and lift station (the collectively the "Improvements ") to be
located on the Property. Such services shall include not only design services, but also bid
phase and construction phase services as approved by the City. The District shall assign
a professional services agreement for the Improvements or that portion of a professional
services agreement pertaining to the design phase, bid phase and construction phase
services for the Improvements to the City. The design professionals engaged in
furtherance of this Agreement shall be required to comply with all laws, rules or
regulations of applicable governmental authorities in order to meet or exceed the quality
standards set by such applicable governmental authorities. Within ninety (90) calendar
days after the execution of this Agreement, the plans and specifications shall be
submitted for written approval of the parties.
1.03 Right -of- Entry. The District, however, grants to the City the right and privilege to enter
the Property at all reasonable hours in order to perform the services necessary for the
completion of the Project, as long as the City's entry does not unreasonably impede the
District's educational mission.
II.
CITY'S RESPONSIBILITIES
2.01 Abandonment. After the District has (i) conveyed the Property to the City; (ii) submitted
to the City's Director of Planning and Development Services a petition for abandonment
of the utility easements existing on the effective date of this Agreement that are no longer
necessary due to the construction of the new lines, which easements are generally
depicted in Exhibit 1 "EX -1," which is attached hereto and incorporated herein for all
intents and purposes; and (iii) submitted releases of all appropriate utility companies, the
City shall process the request in accordance with its standard procedures and in
accordance with Section 2 -767 of the Code. However, the City expressly agrees to
process the petition without the payment of the fee required by such section and submit a
completed petition to the City Council for action. Further, City expressly agrees to
approve the petition so long as the provisions set forth in this Section 2.01 and the Code
of Ordinances, Baytown, Texas (the "Code ") have been satisfied.
2.02 Bidding. Once the City has approved the plans and specifications pursuant to Section
1.02 of this Agreement, the City shall be obligated to advertise for bids for the
construction of the Improvements and award a construction contract in accordance with
all laws applicable to the City. The City shall be solely responsible for compliance with
all bidding and procurement laws with regard to the method of delivery of construction
services for the Project.
2.03 Construction. Once a contract is awarded for the Improvements, the City's contractor
will begin the construction of the Improvements in accordance with the approved plans
and specifications on the Property and continue such construction efforts thereafter in a
diligent manner until the Project is completed and accepted by the City.
Interlocal Agreement, Page 3
2.04 Progress of Work. Upon request, the City shall provide an update of the status of the
construction of the Improvements to the District.
2.05 Title. The legal title to the Improvements shall at all times vest in the City and the
District shall have no claim thereto.
2.06 Contingency Plan. The City shall work with the District to develop a contingency in
order for the City to be able to provide temporary wastewater service to the New School
in the event that the new lift station is not operational in time for the opening of the New
School in 2014.
Interlocal Agreement, Page 4
III.
COSTS
3.01 Responsibility for Costs.
(a) Shared Costs. Except as provided in subsections (b) and (c) of this section, the
parties agree that the estimated costs of the Improvements shall be shared as
follows:
Interlocal Agreement, Page 5
Interlocal Agreement, Page 6
The above - referenced amounts are merely estimates and the actual amount to be paid will be
based upon the percentages stated therein; provided that the District's obligation regarding the
lift station (Item No. 48) shall be a lump sum of FIVE HUNDRED THOUSAND AND NO /100
DOLLARS ($500,000.00) regardless of the actual cost thereof.
Interlocal Agreement, Page 7
(b) City's Sole Costs. All costs associated with the maintenance, repair and operation
of the Improvements shall be borne by the City, and the District shall have no
obligation for such maintenance and operation.
(c) District's Sole Costs. All cost associated with any tap fees that may be required
for the Improvements pursuant to Chapter 98 of the Code shall be borne by the
District, and the City shall have no obligation therefor.
(d) Maximum Costs. Neither Party shall be required to contribute more than the
following for the design and construction of the Improvements, unless specifically
agreed to in writing by the Parties:
3.02 Payments due. All payments required of the Parties under this Agreement pursuant to
Section 3.01 must be made from current revenues of the paying party.
(a) Design Costs. Within 30 days after receipt of an invoice from the City, the
District will deliver to the City a check payable to the City for its share of the
design costs based upon the percentages specified in Section 3.01 hereinabove.
This payment is subject to adjustment as specified in Section 3.03.
(b) Construction Costs. Within 30 days after receipt of an invoice from the City, the
District will deliver to the City a check payable to the City for its share of the
construction costs based upon the estimated construction costs as determined by
the design professional engaged pursuant to this Agreement. This payment is
subject to adjustment as specified in Section 3.03.
3.03 Adjustments.
(a) Additional Prepayment. If during the design or construction of the
Improvements, a change to the plans or specifications is necessary or if it is
necessary to increase the quantity of work to be performed or of materials,
equipment or supplies to be furnished, the the City for the design and construction
services may approve a change order for any increased costs. Subject to Section
3.01(4), the Parties agree to pay such increase costs in accordance with the
percentages specified in Section 3.01 of this Agreement. Such payments shall be
due within ten (10) days of receipt of an invoice therefor from the City.
(b) Refund Excess Prepayment. If the amount tendered pursuant to Sections 3.01 and
3.03 hereinabove exceeds the percentage of the design services or construction
services for which a party is responsible pursuant to Section 3.01 hereinabove, the
excess amount shall be refunded to the City or the District, as appropriate, within
Interlocal Agreement, Page 8
30 days after completion of the Improvements and acceptance thereof by the City,
which shall not be unreasonably conditioned or delayed.
3.04 Audit. The District and its authorized representatives shall have the right to review and
audit all books, records, vouchers and documents of whatever nature related to the City's
performance under this Agreement during the period of performance of this Agreement
and for five (5) years thereafter. Similarly, the City and its authorized representatives
shall have the right to review and audit all books, records, vouchers and documents of
whatever nature related to the District's performance under this Agreement during the
period of performance of this Agreement and for five (5) years thereafter
IV.
TERM AND TERMINATION
4.01 Term. Subject to and upon the terms and conditions set forth herein, this Agreement
shall continue in force and effect from the Effective Date until (i) the final completion of
the Improvements and acceptance thereof by the City, which shall not be unreasonably
conditioned or delayed and (ii) the District's conveyance of the Property to the City.
4.02 Force Majeure. If force majeure prevents either Party hereto from performing any of its
obligations under this Agreement, in whole or in part, then the obligations of such party,
to the extent affected by such force majeure, shall be suspended during the continuance
of any inability so long as such party is exercising due diligence to resume performance
at the earliest practicable time. As soon as reasonably possible after occurrence of the
force majeure relied upon, the Party whose contractual obligations are affected thereby
shall give notice and full particulars of such force majeure to the other party. The term
"Force Majeure," as used herein, shall include, without limitation of the generality
thereof, acts of God, strikes, lockouts, or other industrial disturbances, acts of the public
enemy, orders of any kind of the government of the United States or the State of Texas or
any civil or military authority, insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraints of
government and people, civil disturbances, explosions, breakages or accidents to
machinery, pipelines or canals, partial or entire failure of water supply, and any other
inabilities of either Party, whether similar to those enumerated or otherwise, which are
not within the control of the party claiming such inability, and which such party could not
have avoided by the exercise of due diligence and care.
V.
GENERAL PROVISIONS
5.01 Release.
(a) By this Agreement, the City does not consent to litigation and expressly revokes
any consent to litigation that it may have granted by the terms of this Agreement,
any charter, or applicable state law. The District hereby releases, relinquishes,
Interlocal Agreement, Page 9
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 Project. This release includes the cost
of defense of any claim and any loss of or damage to property (whether property
of the parties or of third parties) that is caused by or alleged to be caused by,
arising out of, or in connection with the Project whether or not said claims,
demands, and causes of action are covered in whole or in part by insurance.
(b) By this Agreement, the District does not consent to litigation and expressly
revokes any consent to litigation that it may have granted by the terms of this
Agreement, any charter, or applicable state law. The City hereby releases,
relinquishes, and discharges the District, 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 Project. This release includes
the cost of defense of any claim and any loss of or damage to property (whether
property of the parties or of third parties) that is caused by or alleged to be caused
by, arising out of, or in connection with the Project whether or not said claims,
demands, and causes of action are covered in whole or in part by insurance.
5.02 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement,
the City and District hereby agree that no claim or dispute between the City and 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, District consents to be joined in
the arbitration proceeding if District's presence is required or requested by the City for
complete relief to be recorded in the arbitration proceeding.
5.03 Sovereign Immunity. Nothing in this Agreement shall be construed so as to limit or
waive the sovereign immunity of the City or the District.
5.04 Notice. Any notice permitted or required to be given in this Agreement to the District
shall be given by registered or certified United States Mail, postage paid, return receipt
requested and addressed to the District, Attention: Superintendent of Schools at 4544 I-
10, Baytown, Texas 77520. Any notice permitted or required to be given in this
Agreement to the City shall be given by registered or certified United States Mail Postage
Prepaid, Return Receipt Requested, address to City, Attention: City Manager, P.O. Box
Interlocal Agreement, Page 10
424, Baytown, Texas 77522 -0424. All notices hereunder given shall be deemed validly
given when actually received or, if earlier, on the third day following deposit in a United
States Postal Service post office or receptacle if the notice otherwise complies with all of
the requisites of this article.
5.05 Independent Contractor. The relationship between the District and the City shall be that
of an independent contractor.
5.06 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 customer or contractor of
the District for any failure to perform its obligations under this Agreement.
5.07 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.
5.08 Timeliness. Time is expressly declared to be of the essence in regard to this Agreement.
5.09 Choice of Law, Venue. This Agreement shall be construed under an in accordance with
the laws of the State of Texas, and all obligations of the parties created hereunder are
performable in Harris County, Texas.
5.10 Severability. In case any one or more of the provisions contained in this Agreement shall
for any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision thereof and
this Agreement shall be construed as if such invalid, illegal or unenforceable provision
had never been contained herein.
5.11 Non - Waiver. Failure of either party hereto to insist on the strict performance of any of
the agreements herein or to exercise any rights or remedies accruing thereunder upon
default or failure of performance shall not be considered a waiver of the right to insist on
and to enforce, by an appropriate remedy, strict compliance with any other obligation
hereunder or to exercise any right or remedy occurring as a result of any future default or
failure of performance.
5.12 Interpretation. In the event of any ambiguity in any of the terms of this contract, it shall
not be construed for or against any party hereto on the basis that such party did or did not
author the same.
5.13 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.
Interlocal Agreement, Page 11
5.14 Complete Agreement. This Agreement constitutes the sole and only agreement of the
parties hereto and supersedes any prior understandings of written or oral agreements
between the parties with respect to the subject matter herein.
5.15 Modification. No amendment modification or alteration of the terms hereof shall be
binding unless the same be in writing, dated subsequent to the date hereof and duly
executed by the parties hereto.
5.16 Assignment. Neither party to this Agreement may assign their rights duties or interests
without first obtaining the written consent of the other party.
5.17 Authority. Each party has the full power and authority to enter into and perform this
Agreement, and the person signing this Agreement on behalf of each party has been
properly authorized and empowered to enter into this Agreement. The persons executing
this Agreement hereby represent that they have authorization to sign on behalf of their
respective corporations and /or business entities.
5.18 Agreement Read. The parties acknowledge that they have read, understand and intend to
be bound by the terms and conditions of this Agreement.
5.19 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.
IN WITNESS WHEREOF, the undersigned District and the City hereto execute this
Agreement on this day of , 2013.
GOOSE CREEK CONSOLIDATED
INDEPENDENT SCHOOL DISTRICT
Daniel Blackford, President of the Board
of Trustees
ATTEST:
Agustin Laredo, Secretary of the Board
of Trustees
CITY OF BAYTOWN, TEXAS
Stephen H. DonCarlos, Mayor
ATTEST:
Leticia Brysch, City Clerk
C:AUsers\karen.horner\ Desktop\ lnterlocalAgreement4VictoriaWalkerRevisedClean8 -6 isd revisions 081013.docx
Interlocal Agreement, Page 12
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INTERLOCAL AGREEMENT
FOR A STREET, UTILITIES, AND LIFT STATION
ASSOCIATED WITH THE NEW ELEMENTARY
SCHOOL NEXT TO VICTORIA WALKER
ELEMENTARY SCHOOL
STATE OF TEXAS §
COUNTY OF HARRIS §
WHEREAS, this Interlocal Agreement for a Street, Utilities, and Lift Station Associated
with the New Elementary School next to Victoria Walker Elementary School, hereinafter called
"Agreement," is made and entered into by and between the Goose Creek Consolidated
Independent School District, an independent school district and political subdivision of the State
of Texas, hereinafter called"District" and the City of Baytown, a municipal corporation located
in Harris and Chambers Counties,Texas,hereinafter called"City."
WITNESSETH:
WHEREAS, the District plans on constructing a new elementary school next to Victoria
Walker Elementary School, which is located at 4711 Seabird Street, Baytown, TX 77521 (the
"New School");and
WHEREAS, neither sufficient access nor sufficient sanitary sewer services are currently
available at the site of the New School; and
WHEREAS, to endeavor to ensure that such services and access will be available at the
time of the scheduled opening of the New School in the Fall of 2014;the District wishes:
1. To convey property to the City for the realignment and extension of Eastpoint Blvd
from Seabird Street northward;
2. To convey necessary utility easements for the realignment of the utilities along the
new alignment of Eastpoint Blvd;and
3. To convey property to the City for a lift station on the west side of Eastpoint Blvd;
and
WHEREAS, the District is agreeable to engaging design professionals to design and
construct the street, utilities and lift station as necessary to provide access and services to the
New School(the"Project")under the terms and conditions stated herein;and
WHEREAS, the City is agreeable to engaging a construction firm for the Project under
terms and conditions stated herein;
Interlocal Agreement.Page 1
WHEREAS, the District and the City have found it will increase the efficiency and
effectiveness of their respective entities as required by Section 791.001, et seq. of the Texas
Government Code, the Texas Interlocal Cooperation Act ("the Act"), and will be in their best
interests and the interest of the public to cooperate in creating the Project; and
NOW THEREFORE, in consideration of the mutual covenants,agreement and benefits to
both parties,it is agreed as follows:
I.
DISTRICT'S RESPONSIBILITIES
1.01 Conveyances. In consideration of the mutual covenants and agreements of this
Agreement,the District agrees:
(a) To convey property to the City for(i) the realignment and extension of Eastpoint
Blvd from Seabird Street northward to a mutually agreeable point past the
driveway for the New School together with (ii) for an 8' wide sidewalk to be
constructed on the east side of the realigned Eastpoint Blvd and the possible
future road alignment of Eastpoint Blvd to connect the realigned Eastpoint Blvd
to the existing Eastpoint Blvd in Eastpoint Subdivision, Section 1;
(b) To convey necessary utility easements for the realignment of the utilities along
the new alignment of Eastpoint Blvd. at a point and location mutually agreeable to
both parties as reflected in Exhibit 2"EX2";and
(c) To convey property to the City for a lift station on the west side of Eastpoint Blvd. at
a point and location mutually agreeable to both parties as reflected in EX 2.
The City and the District shall mutually agree on the boundaries of the properties, which
the District is required to convey to the City pursuant to this section; however, the
boundaries shall generally be those as depicted in Exhibit 2 "EX-2," which is attached
hereto and incorporated herein for all intents and purposes (collectively the "Property").
All the expenses associated with the conveyances of the Property contemplated in this
section, including, but not limited to, the preparation and processing of the replat of the
Property showing the realignment of the Eastpoint Blvd. and the utility easements, all
documents and metes and bounds descriptions necessary for the conveyances, and
recording costs, shall be borne exclusively by the District. The Parties understand and
agree that the replat of the property and the conveyance by special warranty deed of the
lift station site shall be complete and filed of record prior to the occupancy of the New
School. The completion of these conveyances shall be a condition precedent to the
issuance of a certificate of occupancy by the City.
1.02 Professional Services. The District covenants and agrees to engage competent,
experienced design professionals for the design, administration, oversight and inspection
Interlocal Agreement Page 2
services pertaining to the road, sidewalk, utilities and lift station (the collectively the
"Improvements") to be located on the Property. Such services shall include not only
design services, but also bid phase and construction phase services as approved by the
City. The District shall assign a professional services agreement for the Improvements or
that portion of a professional services agreement pertaining to the design phase,bid phase
and construction phase services for the Improvements to the City. The design
professionals engaged in furtherance of this Agreement shall be required to comply with
all laws, rules or regulations of applicable governmental authorities in order to meet or
exceed the quality standards set by such applicable governmental authorities. Within
ninety (90) calendar days after the execution of this Agreement, the plans and
specifications shall be submitted for written approval of the parties.
1.03 Ri t-of-Entry. The District, however, grants to the City the right and privilege to enter
the Property at all reasonable hours in order to perform the services necessary for the
completion of the Project, as long as the City's entry does not unreasonably impede the
District's educational mission.
II.
CITY'S RESPONSIBILITIES
2.01 Abandonment. After the District has(i)conveyed the Property to the City; (ii)submitted
to the City's Director of Planning and Development Services a petition for abandonment
of the utility easements existing on the effective date of this Agreement that are no longer
necessary due to the construction of the new lines, which easements are generally
depicted in Exhibit 1 "EX-1," which is attached hereto and incorporated herein for all
intents and purposes; and(iii) submitted releases of all appropriate utility companies, the
City shall process the request in accordance with its standard procedures and in
accordance with Section 2-767 of the Code. However, the City expressly agrees to
process the petition without the payment of the fee required by such section and submit a
completed petition to the City Council for action. Further, City expressly agrees to
approve the petition so long as the provisions set forth in this Section 2.01 and the Code
of Ordinances,Baytown, Texas(the"Code")have been satisfied.
2.02 Bidding. Once the City has approved the plans and specifications pursuant to Section
1.02 of this Agreement, the City shall be obligated to advertise for bids for the
construction of the Improvements and award a construction contract in accordance with
all laws applicable to the City. The City shall be solely responsible for compliance with
all bidding and procurement laws with regard to the method of delivery of construction
services for the Project.
2.03 Construction. Once a contract is awarded for the Improvements, the City's contractor
will begin the construction of the Improvements in accordance with the approved plans
and specifications on the Property and continue such construction efforts thereafter in a
diligent manner until the Project is completed and accepted by the City.
Interlocal Agreement.Page 3
2.04 Progress of Work. Upon request, the City shall provide an update of the status of the
construction of the Improvements to the District.
2.05 Title. The legal title to the Improvements shall at all times vest in the City and the
District shall have no claim thereto.
2.06 Contingency Plan. The City shall work with the District to develop a contingency in
order for the City to be able to provide temporary wastewater service to the New School
in the event that the new lift station is not operational in time for the opening of the New
School in 2014.
Interlocal Aereement,Page 4
III.
COSTS
3.01 Responsibility for Costs.
(a) Shared Costs. Except as provided in subsections (b) and (c) of this section, the
parties agree that the estimated costs of the Improvements shall be shared as
follows:
Interlocal Agreement, Page 5
Interlocal Agreement, Page 6
The above - referenced amounts are merely estimates and the actual amount to be paid will be
based upon the percentages stated therein; provided that the District's obligation regarding the
lift station (Item No. 48) shall be a lump sum of FIVE HUNDRED THOUSAND AND NO /100
DOLLARS ($500,000.00) regardless of the actual cost thereof.
Interlocal Agreement, Page 7
(b) City's Sole Costs. All costs associated with the maintenance,repair and operation
of the Improvements shall be borne by the City, and the District shall have no
obligation for such maintenance and operation.
(c) District's Sole Costs. All cost associated with any tap fees that may be required
for the Improvements pursuant to Chapter 98 of the Code shall be borne by the
District,and the City shall have no obligation therefor.
(d) Maximum Costs. Neither Party shall be required to contribute more than the
following for the design and construction of the Improvements,unless specifically
agreed to in writing by the Parties:
District $2 133 245.32
city $2,715,241.32
3.02 Payments due. All payments required of the Parties under this Agreement pursuant to
Section 3.01 must be made from current revenues of the paying party.
(a) Design Costs. Within 30 days after receipt of an invoice from the City, the
District will deliver to the City a check payable to the City for its share of the
design costs based upon the percentages specified in Section 3.01 hereinabove.
This payment is subject to adjustment as specified in Section 3.03.
(b) Construction Costs. Within 30 days after receipt of an invoice from the City, the
District will deliver to the City a check payable to the City for its share of the
construction costs based upon the estimated construction costs as determined by
the design professional engaged pursuant to this Agreement. This payment is
subject to adjustment as specified in Section 3.03.
3.03 Adjustments.
(a) Additional Prepayment. If during the design or construction of the
Improvements, a change to the plans or specifications is necessary or if it is
necessary to increase the quantity of work to be performed or of materials,
equipment or supplies to be furnished,the the City for the design and construction
services may approve a change order for any increased costs. Subject to Section
3.01(d), the Parties agree to pay such increase costs in accordance with the
percentages specified in Section 3.01 of this Agreement. Such payments shall be
due within ten(10)days of receipt of an invoice therefor from the City.
(b) Refund Excess Prega ment. If the amount tendered pursuant to Sections 3.01 and
3.03 hereinabove exceeds the percentage of the design services or construction
services for which a party is responsible pursuant to Section 3.01 hereinabove,the
excess amount shall be refunded to the City or the District, as appropriate,within
Interlocal Agreement,Page 8
30 days after completion of the Improvements and acceptance thereof by the City,
which shall not be unreasonably conditioned or delayed.
3.04 Audit. The District and its authorized representatives shall have the right to review and
audit all books,records,vouchers and documents of whatever nature related to the City's
performance under this Agreement during the period of performance of this Agreement
and for five (5) years thereafter. Similarly, the City and its authorized representatives
shall have the right to review and audit all books, records, vouchers and documents of
whatever nature related to the District's performance under this Agreement during the
period of performance of this Agreement and for five(5)years thereafter
IV.
TERM AND TERMINATION
4.01 Term. Subject to and upon the terms and conditions set forth herein, this Agreement
shall continue in force and effect from the Effective Date until(i) the final completion of
the Improvements and acceptance thereof by the City, which shall not be unreasonably
conditioned or delayed and(ii)the District's conveyance of the Property to the City.
4.02 Force Majeure. If force majeure prevents either Party hereto from performing any of its
obligations under this Agreement, in whole or in part, then the obligations of such party,
to the extent affected by such force majeure, shall be suspended during the continuance
of any inability so long as such party is exercising due diligence to resume performance
at the earliest practicable time. As soon as reasonably possible after occurrence of the
force majeure relied upon, the Party whose contractual obligations are affected thereby
shall give notice and full particulars of such force majeure to the other party. The term
"Force Majeure," as used herein, shall include, without limitation of the generality
thereof, acts of God, strikes, lockouts, or other industrial disturbances, acts of the public
enemy,orders of any kind of the government of the United States or the State of Texas or
any civil or military authority, insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraints of
government and people, civil disturbances, explosions, breakages or accidents to
machinery, pipelines or canals, partial or entire failure of water supply, and any other
inabilities of either Party, whether similar to those enumerated or otherwise, which are
not within the control of the party claiming such inability,and which such party could not
have avoided by the exercise of due diligence and care.
V.
GENERAL PROVISIONS
5.01 Release.
(a) By this Agreement, the City does not consent to litigation and expressly revokes
any consent to litigation that it may have granted by the terms of this Agreement,
any charter, or applicable state law. The District hereby releases, relinquishes,
Interlocal Agreement Page 9
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 Project. This release includes the cost
of defense of any claim and any loss of or damage to property(whether property
of the parties or of third parties) that is caused by or alleged to be caused by,
arising out of, or in connection with the Project whether or not said claims,
demands,and causes of action are covered in whole or in part by insurance.
(b) By this Agreement, the District does not consent to litigation and expressly
revokes any consent to litigation that it may have granted by the terms of this
Agreement, any charter, or applicable state law. The City hereby releases,
relinquishes, and discharges the District, 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 Project. This release includes
the cost of defense of any claim and any loss of or damage to property (whether
property of the parties or of third parties)that is caused by or alleged to be caused
by, arising out of, or in connection with the Project whether or not said claims,
demands,and causes of action are covered in whole or in part by insurance.
5.02 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement,
the City and District hereby agree that no claim or dispute between the City and 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,District consents to be joined in
the arbitration proceeding if District's presence is required or requested by the City for
complete relief to be recorded in the arbitration proceeding.
5.03 Sovereign Immunity. Nothing in this Agreement shall be construed so as to limit or
waive the sovereign immunity of the City or the District.
5.04 Notice. Any notice permitted or required to be given in this Agreement to the District
shall be given by registered or certified United States Mail, postage paid, return receipt
requested and addressed to the District, Attention: Superintendent of Schools at 4544 I-
10, Baytown, Texas 77520. Any notice permitted or required to be given in this
Agreement to the City shall be given by registered or certified United States Mail Postage
Prepaid, Return Receipt Requested, address to City, Attention: City Manager, P.O. Box
Interlocal Agreement Page 10
424, Baytown, Texas 77522-0424. All notices hereunder given shall be deemed validly
given when actually received or, if earlier, on the third day following deposit in a United
States Postal Service post office or receptacle if the notice otherwise complies with all of
the requisites of this article.
5.05 Independent Contractor. The relationship between the District and the City shall be that
of an independent contractor.
5.06 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 customer or contractor of
the District for any failure to perform its obligations under this Agreement.
5.07 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.
5.08 Timeliness. Time is expressly declared to be of the essence in regard to this Agreement.
5.09 Choice of Law: Venue. This Agreement shall be construed under an in accordance with
the laws of the State of Texas, and all obligations of the parties created hereunder are
performable in Hams County,Texas.
5.10 Severability. In case any one or more of the provisions contained in this Agreement shall
for any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision thereof and
this Agreement shall be construed as if such invalid, illegal or unenforceable provision
had never been contained herein.
5.11 Non-Waiver. Failure of either party hereto to insist on the strict performance of any of
the agreements herein or to exercise any rights or remedies accruing thereunder upon
default or failure of performance shall not be considered a waiver of the right to insist on
and to enforce, by an appropriate remedy, strict compliance with any other obligation
hereunder or to exercise any right or remedy occurring as a result of any future default or
failure of performance.
5.12 Interpretation. In the event of any ambiguity in any of the terms of this contract, it shall
not be construed for or against any party hereto on the basis that such party did or did not
author the same.
5.13 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.
Interlocal Agreement,Page I I
5.14 Complete A epr� ement. This Agreement constitutes the sole and only agreement of the
parties hereto and supersedes any prior understandings of written or oral agreements
between the parties with respect to the subject matter herein.
5.15 Modification. No amendment modification or alteration of the terms hereof shall be
binding unless the same be in writing, dated subsequent to the date hereof and duly
executed by the parties hereto.
5.16 Assignment. Neither party to this Agreement may assign their rights duties or interests
without first obtaining the written consent of the other party.
5.17 Authorily. Each party has the full power and authority to enter into and perform this
Agreement, and the person signing this Agreement on behalf of each party has been
properly authorized and empowered to enter into this Agreement. The persons executing
this Agreement hereby represent that they have authorization to sign on behalf of their
respective corporations and/or business entities.
5.18 Agreement Read. The parties acknowledge that they have read, understand and intend to
be bound by the terms and conditions of this Agreement.
5.19 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.
IN WITNESS WHEREOF the unders'gned District and the City hereto execute this
Agreement on thi& day of P 2013.
GOOSE CREEK CONSOLIDATED CITY O AYTOWN,TEXAS
INDEPENDENT SCHOOL DISTRICT
4a2niel 4ackfo ,FM ident o the Board tephen . onCarlos,Mayor
of Trustees
ATTEST: ATTE
Agustin Laredo, S cretary oT the Board is sch, ip erk
of Trustees
C:\Users\karen.homer\DesktopWterlocalAgreement4VictoriaWalkerRevisedCleanB-6 isd revisions 091013.docx
Interlocal Agreement.Page 12
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