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Ordinance No. 14,544ORDINANCE NO. 14,544 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO THE TEMPORARY USE DEVELOPMENT AGREEMENT WITH SAN JACINTO METHODIST HOSPITAL FOR PROPERTY ALONG W. BAKER ROAD, EAST OF THE OLD KROGER SHOPPING CENTER AND MORE PARTICULARLY DESCRIBED AS AND LEGALLY KNOWN AS TRACT 17E (7.4893 ACRES), ABSTRACT 840, H. WHITING, BAYTOWN, HARRIS COUNTY, TEXAS; 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 and directs the City Manager and City Clerk of the City of Baytown to execute and attest to the Temporary Use Development Agreement with San Jacinto Methodist Hospital for property along W. Baker Road, east of the old Kroger Shopping Center and more particularly described as and legally known as Tract 17E (7.4893 acres), Abstract 840, H. Whiting, Baytown, Harris County, Texas. A copy of said agreement is attached hereto, marked 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 vote of the City Council of the City of Baytown, this the 22nd day of October, 2020. BRANDON CAPETILLO, M yor APPROVED AS TO FORM: KAREN L. HORNER, City Attorney R:1Karen Homer DocumentsTiles City Council Ordinances\2020 October 22 TemporaryUseDevelopmentAgreementwithMethodistHospital.doc Exhibit "A" TEMPORARY USE DEVELOPMENT AGREEMENT STATE OF TEXAS COUNTY OF HARRIS This Temporary Use Development Agreement (this "Agreement"), dated October _ , 2020, is made between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas (the "City") and SAN JACINTO METHODIST HOSPITAL, a Texas non-profit corporation ("Hospital"). The City and Hospital are jointly referred to herein as the "Parties." RECITALS: WHEREAS, Hospital has been expanding its current campus at the corner of W. Baker Road and Garth Road over the past three years; and WHEREAS, during this expansion, Hospital has been leasing property across W. Baker Road (the "Former Kroger Site") in order to provide a location for the general contractors and its subcontractors to park, office and store miscellaneous materials, as there is no adequate space on the property owned by Hospital; and WHEREAS, Hospital is no longer able to lease the Former Kroger Site, as such property was recently sold; and WHEREAS, Hospital desires to continue its next phase of the expansion project, which will include, but not be limited to, a new parking deck, two new bed towers, and a Central Utility Plant upgrade (the "Expansion Project"); and WHEREAS, as part of this Expansion Project, Hospital desires to use temporarily the property owned by Benes Family LTD, and Riceland Interest LTD (collectively the "Owner"), which property is more particularly described as follows: TR 17E (7.4893 AC) ABST 840 H WHITING BAYTOWN, HARRIS COUNTY, TEXAS (the "Property"); and WHEREAS, Owner and Hospital have entered or will enter into an agreement, which allows Hospital and/or its contractors and subcontractors to use the Property on a temporary basis during the construction of the Expansion Project; and WHEREAS, the City is supportive of Hospital's use of the Property, as it would expedite the construction of the Expansion Project, while protecting the health, safety and welfare of the citizens of the City; and Temporary Use Development Agreement, Page 1 WHEREAS, the use of the Property as desired by Hospital does not meet the rules and regulations of the City; and WHEREAS, the City is willing to consent to the use for a short term; provided certain conditions as expressed herein are honored by the Parties; NOW THEREFORE, in consideration of the mutual covenants, agreements and benefits to both Parties, it is agreed as follows: I. USE OF PROPERTY 1.01 Agreement to Temporarily Use the Property. Within thirty (30) calendar days of the Effective Date of this Agreement, Hospital shall provide the City with a copy of the agreement into which it has entered with the Owner for the temporary use of the same for the City's review and approval. The term of the applicable agreement shall be for a term of at least a year and must automatically extend for the same period of time that this Agreement is extended, if any. The term of the applicable agreement between the Owner and Hospital shall extend at least three months longer than the term of this Agreement and must provide that (i) the City have access to the Property to inspect and (ii) Owner shall not in any way restrict such access. The Parties understand and agree that this Agreement is contingent upon the City's receipt and approval of the agreement referenced in this section. Should the applicable agreement not be timely submitted or not be approved by the City, this Agreement may, at the option of the City, be terminated at any time before the applicable agreement is submitted, and the Parties shall have no further obligations hereunder. 1.02 Improvements. Hospital may make improvements to the Property in accordance with the development plan, which is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes (the "Development Plan"), or as otherwise approved by the City in writing and may install the following: a. No more than one (1) double -wide, one (1) four -wide and three (3) single -wide pre - manufactured trailers used for office/meeting spaces, b. No more than twenty (20) connex containers used for storage of equipment and materials, which containers will not be stacked, C. an expanded parking area as depicted on the Development Plan, and d. a laydown yard as depicted on the Development Plan (the "Improvements"). Hospital shall secure building permits from the City of Baytown in order to construct andfor install the Improvements on the Property. Improvements installed shall be subject to and meet all building code and other City code requirements, except as otherwise Temporary Use Development Agreement, Page 2 provided for in Section 1.03. The Improvements must pass all required inspections by the City prior to use. 1.03 Exceptions to Codes. For Hospital's temporary use of the Property, the City agrees that the Improvements herein are determined to meet the use restrictions of the Unified Land Development Code ("ULDC") since the Improvements are for a temporary use, which is not specifically addressed therein. To the extent such determination is challenged, the City agrees that the Improvements are exempted from such restrictions only during the term of this Agreement. 1.04 Use. Hospital shall use the Property in strict compliance with its agreement with the Owner and with this Agreement. Should the terms of its agreement with Owner and this Agreement conflict, this Agreement shall control. 1.05 Conditions on Use. Hospital agrees that its use of the Property as allowed herein shall be conditioned upon the following: 1.05.1 Landscaping. Hospital shall install and maintain during the term of this Agreement or cause to be installed and maintained during the term of this Agreement on the Property a 12-foot streetscape of trees only, meeting or exceeding the tree requirements of Sections 18-1201, et seq., of the Code along both W. Baker Road and Manor Drive, which streetscape will be watered until it is self-sustaining. 1.05.2 Fencing and Gate. Hospital shall install and maintain during the term of this Agreement (including the replacement of damaged screens) or cause to be installed and maintained during the term of this Agreement (including the replacement of damaged screens) on the Property the following, which shall meet all applicable requirements of the Code: a. a six-foot (6) opaque fence, b. gates for fire access 45 feet from the rights -of -way, and C. a Knox Box. 1.05.3 Traffic Management Plan. Hospital must submit or cause to be submitted a traffic control plan for review and approval by the City. Such traffic control plan shall focus on minimizing the impact of Hospital's operations on the public, as well as the public health, safety and welfare. Hospital, its contractors and subcontractors, along with their respective officers, agents and employees shall abide by such plan. Such plan shall require: 1.05.3.1 Traffic Improvements. Hospital shall install and maintain or cause to be installed and maintained the following: Temporary Use Development Agreement, Page 3 a. a pedestrian hybrid beacon, meeting the design and performance requirements of Chapter 4F of the Texas Manual on Uniform Traffic Control Devices, along W. Baker Road for a mid -block pedestrian crossing at a location and in accordance with specifications approved in writing by the City; b. right -turn -only signs on the Property at Manor Drive and W. Baker Road so as to permit only right-hand turns when exiting the Property; and C. a driveway connection to Manor Drive so that its approach alignment facilitates eastbound traffic and inhibits left turns into or from the drive as approved by the City. 1.05.3.2 Traffic Patterns. The Hospital and its contractors shall post signage and take other reasonable measures to prohibit any traffic: a. from entering the Property from Manor Drive; and b. from exiting the Property onto W. Baker Road, except between the hours of 3:00 p.m. and 5:00 p.m. 1.05.3.3 Lane Closure. Any lane closure desired by Hospital or its contractors requires a Permit to Close Public Way and its application must be submitted in writing by the Hospital to the City at least seven (7) days in advance of the requested closure date. 1.05.4 Drainage. All drainage shall be collected by the Property, and storm discharge will be held to the pre -development flow rate. A stormwater quality management feature or device approved in writing by the City will be required at all storm discharge locations. A stormwater permit must be obtained in order for the Property to be used as specified herein. 1.05.5 Maintenance. 1.05.5.1 Roadway. Hospital shall cause those portions of W. Baker Road, Manor Drive and Garth Road over which the Hospital's contractors and subcontractors traverse to be swept on a regular basis or more often as may be required by the City's Director of Public Works and Engineering, or his designee in writing. It is expressly understood and agreed that should Hospital's operations, or those of its contractors or subcontractors, cause debris, dirt, or any other matter that causes a hazard to the public be deposited on the roadway, Hospital shall remove such hazard or cause such hazard to be removed immediately. Temporary Use Development Agreement, Page 4 1.05.5.2 Property. lospital shall maintain the Property or cause the same to be maintained in accordance with all applicable provisions of the Code of Ordinances, Baytown, Texas (the "Code"). Such maintenance shall include, but not be limited to, the installation of gravel, cattle guards, or any other material approved in writing by the City's Director of Public Works and Engineering or his designee, as necessary to limit debris and soil from entering any public right- of-way. 1.05.6 Restoration. The Property shall be repaired and restored to its natural state, as depicted in Exhibit "B," which is attach hereto and incorporated herein for all intents and purposes, and in as good or better condition than it was in prior to the Hospital's use of the Property. All Improvements must be removed from the Property prior to the expiration of the term hereof, however, the streetscaping shall not be removed but shall remain and be protected during the restoration and removal activities. Such restoration and removal activities are herein referred to collectively as "Restoration Activities." 1.06 Right -of -Entry. Upon advance notice, Hospital and Owner grant to the City, its officers, agents and employees, the right and privilege to enter the Property at all reasonable hours in order to ensure compliance with this Agreement. II. COSTS 2.01 Responsibility for Costs. Hospital expressly understands and agrees that all costs associated with this Agreement, other than City's costs required herein, shall be borne by Hospital, and Hospital shall not seek recovery of costs from the City. It is expressly understood and agreed that the City is not obligated to expend any money under this Agreement. III. TERM AND TERMINATION 3.01 Term. Subject to and upon the terms and conditions set forth herein, this Agreement shall continue in force and effect through December 31, 2022, from the Effective Date; provided, however, that if the Restoration Activities are incomplete by such date, the City, through its City Manager, and Hospital may extend this Agreement for an additional three (3) months. It is expressly understood that the obligations concerning the Restoration Activities shall survive expiration or termination of this Agreement. 3.02 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 Temporary Use Development Agreement. Page 5 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. 3.03 Termination. This Agreement may be terminated in the following manner: a. by mutual written agreement and consent of both Parties; b. by the City if Hospital fails to fulfill the obligations set forth herein following thirty (30) days' prior written notice; by Hospital if the City fails to fulfill the obligations set forth herein following thirty (30) days' prior written notice; or d. by the City if the Owner terminates its agreement with Hospital for the temporary use of the Property. The termination of this Agreement shall extinguish all rights, duties, obligations and liabilities of the Parties under this Agreement, except for: a. any cost incurred because of the breach; and b. Hospital's obligation to perform the Restoration Activities, which must be completed within sixty (60) days of the termination of this Agreement. IV. GENERAL PROVISIONS 4.01 Limited Release. Hospital hereby releases, relinquishes, and discharges the City, its officers, agents and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, that is caused by or alleged to be caused by, arising out of, or in connection with this Agreement and the Hospital's occupancy of the Property. Hospital assumes full responsibility for its obligations and the obligations of its contractor or subcontractors under this Agreement and hereby releases, relinquishes, discharges, and holds harmless the City, its officers, agents and employees Temporary Use Development Agreement, Page 6 from all claims, demands, and causes of action of every kind and character that are caused by or alleged to be caused by, arising out of, or in connection with Hospital's obligations hereunder. This release shall apply with respect to Hospital's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 4.02 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the City and Hospital hereby agree that no claim or dispute between the City and Hospital 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, Hospital consents to be joined in the arbitration proceeding if Hospital's presence is required or requested by the City for complete relief to be recorded in the arbitration proceeding. 4.03 Sovereign Immunity. Nothing in this Agreement shall be construed so as to limit or waive, in whole or part, the sovereign immunity of the City. 4.04 Notice. Any notice permitted or required to be given in this Agreement to Hospital shall be given by registered or certified United States Mail, postage paid, return receipt requested and addressed to San Jacinto Methodist Hospital, Attention: Amy Reddell, Vice President, Legal Services, 6565 Fannin Street, D200, Houston, Texas 77030. 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 paid, return receipt requested, addressed to City of Baytown, Attention: City Manager, P.O. Box 424, Baytown, Texas 77522-0424. All notices hereunder given shall be deemed validly given when actually received or 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. 4.05 Independent Contractor. The relationship between Hospital and the City shall be that of an independent contractor. 4.06 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 Hospital for any failure to perform its obligations under this Agreement. 4.07 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. 4.08 Timeliness. Time is expressly declared to be of the essence in regard to this Agreement. 4.09 Choice of Law, Venue. This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the Parties created hereunder are performable in Barris County, Texas. Temporary Use Development Agreement, Page 7 4.10 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. 4.11 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. 4.12 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. 4.13 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. 4.14 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. 4.15 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. 4.16 Assignment. Neither Party to this Agreement may assign their rights, duties or interests without first obtaining the written consent of the other Party. 4.17 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. 4.18 Agreement Read. The Parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. Temporary Use Development Agreement, Page 8 4.19 Multiple Originals. It is expressly 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 Hospital and the City hereto execute this Agreement on this _ _ day of _ , 2020 (the "Effective Date"). SAN JACINTO METHODIST HOSPITAL (Signature) (Printed Name) (1 itle) ATTEST: (Signature) (Printed Name) (Title) CITY OF BAYTOWN, TEXAS Richard L. Davis, City Manager ATTEST: Leticia Brysch, City Clerk R: Karen Horner\Documents\Files+Contracts\Hospital Temporary Use Development Agreement TemporaryUseDevelopmentAgreementIO222020.docx Temporary Use Development Agreement, Page 9 jrr r .3 a The Chute�� c] Sign in Mtlnor tJr W Mti nr K.wik ISaf.EUljg'&'!)r m Mwlol Dr b M Tune of Baytown-; 13�ytown cent R 30. r Platais Closes Baytowr►, TX Hartz'Chicken Buffet ' a� AltustSurgery ;w . Cerit'er E dytown r , An rance',: ¢ r NEW Baytown t Baytow4n Family Practice z ' a UNIFORMS BAY+ .71 li ® HupG]y�e Y .. s Pizza Bella W ili • wcreek ' 5hoppi Center. 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