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BAWA Resolution No. 2009-10 RESOLUTION NO.2009-10 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE BAYTOWN AREA WATER AUTHORITY AUTHORIZING AN INTERLOCAL AGREEMI:?NT WITH HARRIS COUNTY FOR UTILITY RELOCATIONS TO ACCOMMODATE THE COUNTY'S WIDENING OF TI-IOMPSON ROAD:AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN'IN AN AMOUNT NOT TO EXCEED THREE HUNDRED EIGHTY-TWO THOUSAND FOUR HUNDRED FOURTEEN AND 25/100 DOLLARS ($382,414.25):MAKING OTHER PROVISIONS RELATED THERETO:AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE FT RESOLVED BY THE BOARD OF DIRECTORS OF THE BAYTOWN AREA WATER AUTHORITY: Section 1:That the Board of Directors of the Baytown Area Water Authority hereby authorizes and directs the General Manager to execute and the Assistant Secretary to attest to an agreement with Harris County for utility relocations to accommodate the county's widening of Thompson Road.A copy of the agreement is attached hereto,marked Exhibit"A."and made a part hereof for all intents and purposes. Section 2:That the Board of Directors of the Baytown Area Water Authority authorizes payment to Harris Couniv in an amount not to exceed THREE HUNDRED EIGHTY-TWO THOUSAND FOUR HUNDRED FOURTEEN AND 25/100 DOLLARS(S382,414.25)for utility relocations to accommodate the county's widening of Thompson Road in accordance with the agreement authorized in Section 1 hereinabove. Section 3:That the General Manager is hereby granted general authority to approve a decrease or an increase in costs by TWENTY-FIVE THOUSAND AND NO/100 DOLLARS($25.000.00)or less, provided that the amount authorized in Section 2 hereof may not be increased by more than ten percent(10%). Section 4:This resolution shall take effect immediately from and after its passage by the Board of Directors of the Baytown Area Water Authority. INTRODUCED.READ and PASSED,by the affirmative vote of the Board of Directors of the Baytown Area Water Authority this the 16°i day of December.2009. ATE& r�14i/i� 6,GhI iii111�/ I X JOHNA.SANDI[OP.President =E Y 1-1 GA A.�sistal t Secretary APPROVED AS TO FORM: 4ftAC1041PAM!!�1REZ.SR..G eral Counsel R_WarenTiles'BAwA\Resolution\200%Resolutionfod larrisCount\7Agreement4ThompsonRoad.doc Exhibit"A" AGREEMENT THE STATE OF TEXAS§ COUNTY OF HARRIS§ This Agreement,made and entered into pursuant to Tex.Gov't Code Ann.§791.001 et seq.(Vernon 2004&Supp.2008),as amended and Tex.Spec.Dist.Code Ann.§8104.204 (Vernon Supp.2008),by and between Harris County,a body corporate and politic under the laws of the State of Texas,hereinafter called"County,"and Baytown Area Water Authority,a conservation and reclamation district in Harris County created under Tex.Const,art.XVI,§59, hereinafter called"Authority;" WITNESSETH: WHEREAS,the County desires to construct Thompson Road from 100 feet north of State Highway 330 to 800 feet north of Ellis School Road,hereinafter called"County's Improvements;"and WHEREAS,the Authority owns and operates various facilities,hereinafter called "Authority's Facilities,"which lie within the above defined limits of Thompson Road;and WHEREAS,the County has advised the Authority of the County's intention to reconstruct the County's Improvements,and has requested the Authority to relocate the Authority's Facilities in order not to interfere with the County's Improvements;and WHEREAS,the Authority has requested the County to include,at the Authority's expense,the relocation of the Authority's Facilities as a separate bid item in the County's contract for the construction of the County's Improvements;and WHEREAS,the County is willing to include the relocation of the Authority's Facilities in the County's contract for the construction of the County's Improvements,provided the Authority pays for the relocation of the Authority's Facilities;and WHEREAS,the estimated cost of the relocation of the Authority's Facilities is $382,414.25,which includes$24,093.00 for engineering and$17,062.92 for administrative expenses;and WHEREAS,the County has prepared drawings and specifications for the construction of the County's Improvements and for the relocation of the Authority's Facilities,which have been reviewed and approved by the Authority;and WHEREAS,the County is willing to take competitive bids for the construction of the County's Improvements and for the relocation of the Authority's Facilities; NOW,THEREFORE,the County and the Authority,in consideration of the mutual covenants and agreements herein contained,do mutually agree as follows: I After the County advertises for bids for both the construction of the County's Improvements and the relocation of the Authority's Facilities,in accordance with the plans and specifications therefor,which instruct the bidders to submit separate bids for the cost of relocation of the Authority's Facilities and the construction of the County's Improvements,the County will receive and tabulate said bids.After receipt and tabulation of the bids for the construction of the County's Improvements and the relocation of the Authority's Facilities,the County Commissioners Court will determine the lowest and best bid for both the construction of the County's Improvements and the relocation of the Authority's Facilities.The County Commissioners Court's determination of the lowest and best bidder is final and conclusive.The County may reject all bids and re-advertise for bids.The County will notify the Authority of the amount of the lowest and best bid attributable to the relocation of the Authority's Facilities. II If the portion of the lowest and best bid attributable to the relocation of the Authority's Facilities,as determined by the County Engineer,is less than or equal to$341,258.33,then and in that event,the Authority,within forty-five(45)calendar days after receipt of said notification as to the amount of the lowest and best bid attributable to the relocation of the Authority's Facilities,will transmit to the County a check,made payable to Harris County,in said amount,as determined by the County Engineer,plus the following:(i)5%of said amount for administrative expenses,and(ii)a fixed fee of$24,093.00 for related engineering services. III If the portion of the lowest and best bid attributable to the relocation of the Authority's Facilities,as determined by the County Engineer,is in excess of$341,258.33,then and in that event,the Authority,within forty-five(45)calendar days after receipt of said notification as to the amount of the lowest and best bid attributable to the relocation of the Authority's Facilities, must perform in accordance with one of the following two(2)options: a.Authority may pay the County the amount of said portion of the lowest and best bid attributable to the relocation of the Authority's Facilities,as determined by the County Engineer, plus the following:(i)5%of said amount for administrative expenses,and(ii)a fixed fee of $24,093.00 for related engineering services,in which event the County may proceed in accordance with Paragraph IV below. b.Authority may pay the County,for engineering services,the fixed fee in the amount of $24,093.00,and will proceed to make its own arrangements for the construction of its facilities in a timely manner that does not delay the County's Improvements,in which event the County will have no further obligation hereunder,other than making available to the Authority the plans and specifications for the relocation of the Authority's Facilities. IV Within sixty(60)days after receipt of said funds from the Authority pursuant to Paragraphs II or III(a)above,the County may,subject to Paragraph XIV below,let the contract for the construction of the County's Improvements and for the relocation of the Authority's Facilities,to the lowest and best bidder,in accordance with the usual and customary procedures of the County,subject to certification of the availability of funds for the County's Improvements by the County Auditor.The County reserves the right to decline to award the contract to all bidders,in which event,the County,in its sole discretion,may either re-advertise for bids pursuant to the same understanding with regard to rejection of bids or terminate this agreement as hereinabove provided. V If the County lets a contract pursuant to Paragraph IV above,the County will(i)inspect the construction of the County's Improvements and the relocation of the Authority's Facilities in 2 a manner similar to that of other County construction projects,and(ii)through its contractor, relocate the Authority's Facilities in accordance with the drawings and specifications approved by the Authority.The County is not obligated to expend any County funds to relocate the Authority's Facilities.The County Engineer may make minor changes in the drawings and specifications that he deems necessary or desirable during the construction of the County's Improvements and relocation of the Authority's Facilities,so long as the changes do not affect the scope of the work involved in the relocation of the Authority's Facilities. VI During the relocation of the Authority's Facilities,the Authority has the right of access to the construction site and has the right to review all documents,maps,plats,records,photographs, reports or drawings affecting said relocation,provided,however,Authority shall give notice by telephone to the Harris County Engineer prior to any inspection of either the site or documents and provided further that in conducting said inspections,Authority shall not interfere with the work in progress. VII During the construction of the County's Improvements or relocation of the Authority's Facilities,should the County deem it necessary,through changes in contract with the County's contractor or otherwise,to perform any relocation of the Authority's Facilities over and above that which the County initially advertised,or for which the County accepted bids,or on which the County's contractor based its bid,then and in any of those events,the County will determine the estimated cost of such additional relocation work and notify the Authority of such amount. Within forty-five(45)calendar days after receipt of said notification,the Authority will transmit to the County a check,made payable to Harris County,in said amount,as determined by the County Engineer,plus the following:(i)5%of said amount for administrative expenses,and(ii) 10%of said amount for related engineering services. V[II The County may terminate this Agreement at any time,with or without cause,by written notice to Authority,and the County will have no obligation hereunder other than to return to Authority the unexpended funds paid to County,if any,by Authority pursuant to this Agreement. If the County elects to terminate this Agreement pursuant to this paragraph,any interest earned on said funds paid to County by Authority pursuant to this Agreement,becomes the sole property of the Authority.If the County has not awarded the contract to the lowest and best bidder within one(1)year from the execution of this Agreement by the Authority,then and in that event,the Authority may terminate this agreement,and the County will have no obligation hereunder other than to return to the Authority the unexpended funds paid to County,if any,by Authority pursuant to this Agreement,together with any interest earned on said funds. IX The Authority or its authorized representatives has the right to review and audit all books, records,vouchers and documents of whatever nature related to the County's performance under this agreement,during the period of performance of the agreement and for three years thereafter, or for so long as there exists any dispute or litigation arising from this agreement.The County is not responsible for the cost of the duplication. 3 X The sole obligation of the Authority is to provide funding for the relocation of the Authority's Facilities as provided by the terms of this agreement.The County is not responsible for the maintenance or condition of the Authority's Facilities.Upon completion of construction of the County's Improvements and the relocation of the Authority's Facilities,the Authority shall assume full ownership of and responsibility for the maintenance and repair of such Authority facilities to the extent and in the same manner as other like facilities within the Authority. Xl Upon completion of construction of the County's Improvements and the relocation of the Authority's Facilities,the County Auditor will determine the total cost to the County for the relocation of the Authority's Facilities,and the County will notify the Authority of such amount. If the actual cost to the County of the relocation of the Authority's Facilities exceeds the amount or amounts previously paid to the County by the Authority,then the Authority will pay the amount of such excess to the County.If the actual cost to the County of relocating the Authority's Facilities is less than the amount or amounts previously paid to the County by the Authority,then the County will refund to the Authority the excess amount paid by the Authority to the County over and above the actual cost thereof.Any amount due and payable under this paragraph will be paid within sixty days after completion of the work or thirty days after the County notifies the Authority of the amount of the actual cost,whichever is sooner.After receipt by the County of a written request from the Authority,the County shall fumish the Authority a copy of the record drawings and specifications for the relocation of the Authority's Facilities, provided,however,the County has no obligation to furnish said record drawings and specifications to the Authority so long as any money owed by the Authority to the County under this agreement has not been received by the County.Upon completion of the construction of the County's Improvements and the relocation of the Authority's Facilities,the Authority is assigned any rights the County may have against the contractor,the design engineer and the surety on the contractor's performance bond,which relate to the relocation of the Authority's Facilities. XII No party hereto shall make,in whole or in part,any assignment of this Agreement or any obligation hereunder without the prior written consent of the other parties hereto. Xlll All notices and communications directed to the parties under this Agreement shall be mailed by certified mail,return receipt requested,or delivered at the following addresses: If to the Authority:Baytown Area Water Authority 2123 Market Street P.O.Box 424 Houston,Texas 77522 Attention:Mr.Garrison C.Brumback,General Manager If to the County:Harris County Public Infrastructure Department 1001 Preston Avenue,7th Floor Houston,Texas 77002-1893 Attention:Mr.Arthur L.Storey,Jr.,P.E.,Executive Director 4 Any notice given hereunder is deemed given Upon deposit of such In the United States Mail. NIV Notwithstanding anything herein to the contran-or that may be construed to the contrary. the County has no tiutds specifically allocated to performing its obligations hereunder,and the County is under no obligation to expend an)-tiutds other than and except to the extent of those funds ihat the County May.in its sole discretion,make available. NV This instrument contains the entire Agrecntent between the parties relating to the rights granted and the obligations assumed herein.any modifications concerning this instrument are of no force and effect excepting a subsequent modification in writing,signed by all parties hereto. NVI This agrec►tTent has no force or effect until it has been approved by the City Council of the City of Baytown,pursuant to an ordinance of the City of Baytown so authorizing,as evidenced by a copy ofsaid ordinance attached hereto and ntacle a part licreol'. IN TESTEMONY OF WHICH.this agreement.in duplicate originals,each lwvim,equal force has been executed on behalf of the parties hereto as follows,to wit; a.It has on the day of 2009,hccn executed by the County.fudge of-Ilarris County,on behalf of the County pursuant to;u►Order of the Commissioners Court of the County so authorizin��. b.It has on the day of 2009.been'cxecuted by the General iManager of Baytown Arco Water Authority.and attested to by the Secretary of said :\uthority,pursuant to a resolution of'(lie Board of Directors of said Authority so attthorizim, APPROVED AS TO FOFUM: vINCL RYAN HARRIS COUNTY County:\ttorney By By WILLIAIM R.B LIY l--Ell ENINILTT Senior Assistant Count),attorney County.fudge t:TiA)'1'O)yNARI:AWATtit2f\tJ1'110!tl'r1'09RPD019? ATTEST:BAYTOWN AREA AUTHORITY By Secretary GARRISON C.BRUMBACK General IvInnager s THE STATE OF TEXAS§ COUNTY OF HARRIS§ The Commissioners Court of Harris County,Texas,convened at a meeting of said Court at the Harris County Administration Building in the Baytown Area Water Authority,Texas,on the day of 2009,with the following members present, to-wit: Ed Emmett County Judge El Franco Lee Commissioner,Precinct No.1 Sylvia R.Garcia Commissioner,Precinct No.2 Steve Radack Commissioner,Precinct No.3 Jerry Eversole Commissioner,Precinct No.4 and the following members absent,to-wit:, constituting a quorum,when among other business,the following was transacted: ORDER AUTHORIZING EXECUTION OF AGREEMENT BETWEEN HARRIS COUNTY AND THE BAYTOWN AREA WATER AUTHORITY FOR THE CONSTRUCTION OF PAVING AND DRAINAGE IMPROVEMENTS FOR THOMPSON ROAD FROM 100 FEET NORTH OF STATE HIGHWAY 330 TO 800 FEET NORTH OF ELLIS SCHOOL ROAD Commissioner introduced an order and made a motion that the same be adopted.Commissioner seconded the motion for adoption of the order.The motion,carrying with it the adoption of the order,prevailed by the following vote: Yes No Abstain Judge Emmett 0 0 0 Comm.Lee 0 0 0 Comm.Garcia❑0❑ Comm.Radack 0 0❑ Comm.Eversole 0❑❑ The County Judge thereupon announced that the motion had duly and lawfully carried and that the order had been duly and lawfully adopted.The order thus adopted follows: WHEREAS,Harris County("County")desires to construct Thompson Road from 100 feet north of State Highway 330 to 800 feet north of Ellis School Road,hereinafter called "County's Improvements;"and WHEREAS,the Baytown Area Water Authority("Authority")owns and operates various facilities,hereinafter called"Authority's Facilities,"which lie within the above described limits of Thompson Road;and WHEREAS,the County has advised the Authority of the County's intention to reconstruct the County's Improvements,and has requested the Authority to relocate the Authority's Facilities in order not to interfere with the County's Improvements;and WHEREAS,the Authority has requested the County to include,at the Authority's expense,the relocation of the Authority's Facilities as a separate bid item in the County's contract for the construction of the County's Improvements;and WHEREAS,the County is willing to include the relocation of the Authority's Facilities in the County's contract for the construction of the County's Improvements,provided the Authority pays for the relocation of the Authority's Facilities;and WHEREAS,the estimated cost of the relocation of the Authority's Facilities is $382,414.25,which includes$24,093.00 for engineering and$17,062.92 for administrative expenses;and WHEREAS,the County has prepared drawings and specifications for the construction of the County's Improvements and for the relocation of the Authority's Facilities,which have been reviewed and approved by the Authority;and WHEREAS,the County is willing to take competitive bids for the construction of the County's Improvements and for the relocation of the Authority's Facilities; NOW,THEREFORE,BE IT ORDERED BY THE COMMISSIONERS COURT OF HARRIS COUNTY,TEXAS THAT: Section 1:The recitals set forth in this order are true and correct. Section 2:County Judge Ed Emmett is hereby authorized to execute,for and on behalf of Harris County,an Agreement by and between Harris County and Baytown Area Water Authority for the construction of paving and drainage improvements for Thompson Road from 100 feet north of State Highway 330 to 800 feet north of Ellis School Road,said Agreement being incorporated herein by reference for all purposes as though fully set forth word for word. 09RPD0197 2