Ordinance No. 12,438ORDINANCE NO. 12,438
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING A WATER LINE UPSWING AGREEMENT WITH
LONE STAR 5000 CORPORATION; AND PROVIDING FOR THE EFFECTIVE
DATE THEREOF.
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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
City Manager to execute a Water Line Upsizing Agreement with Lone Star 5000 Corporation. Said
contract is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes.
Section 2: This ordinance shalt take effect immediately from and after its passage by the
City Council of the City of Baytown. n
INTRODUCED, READ and PASSED by the affirmativ of e City Council of the City
of Baytown this the 12'" day of December, 2013.
DONCARLOS,
ATTEST:
BRYSCI -I, Cil} Icrk
g.
r,
APPROVED AS TO
NACIO RAMIREZ, SR., ` Attorney
R:U cn7i]cs Ciry CnnncWrdinance UO 13 D mb r I Wpsi=Agmemcnu.do
Exhibit "A"
WATER LINE UPSIZING AGREEMENT
THE STATE OF TEXAS §
COUNTY OF HARRIS
This Waterline Upsizing Agreement (the "Agreemen f) is made and entered into between
the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties,
Texas (the "CITY"), whose address for purposes hereof is P.O. Box 424, Baytown, Texas 77522,
and Lone Star 5000 Corporation, a Texas corporation ( "DEVELOPER"), whose address for
purposes hereof is 5950 Berkshire Ln, Suite 375, Dallas, TX 75225
WITNESSETH:
1.
1.1 Wg ine Upsizing Project. Subject to and upon the terms, provisions and conditions
hereinafter set forth, the parties hereto agree that CITY will increase the diameter of the
waterline to be constructed by DEVELOPER along the north side of SH99 from
Alexander Dr. to Tri- Cities Beach Road from an eight -inch line to a twleve -inch line (the
"Project').
R.
2.1 DEVELOPER's ObligMions . In addition to DEVELOPER's obligations elsewhere in this
Agreement, DEVELOPER shall have the following obligations:
(a) DEVELOPER agrees that it will at its own cost and expense employ one or more
professional engineers to design the Project.
(b) DEVELOPER agrees to comply with all laws, rules or regulations of applicable
governmental authorities, in order to make the lines described herein above meet
or exceed the quality standards set by such applicable governmental authorities.
(c) DEVELOPER shall be obligated to submit plans and specifications for the
construction of the Project (the "Plans and Specifications ") to the City Engineer,
for approval and/or for required revision and approval by the City Engineer,
within thirty (30) days after the Effective Date of this Agreement, if it has not
already done so at the time of execution of this Agreement. DEVELOPER agrees
that the plans and specifications shall include the construction and installation of
both an eight-inch (8') diameter and a twelve -inch (12") diameter water line
together with related improvements.
(d) Within ten (10) days after the City Engineer's final approval of the Plans and
Specifications submitted by DEVELOPER in accordance with Section 2.I.c,
DEVELOPER shall deposit with the CITY cash in the amount of the engineer's
estimate of the construction of the eight -inch water line. The Parties understand
and agree that this amount is merely a deposit which is subject to adjustment once
bid prices have been received.
(e) If the amount deposited with the CITY pursuant to Section 2(d) is less than the
bid of the lowest responsible bidder received for the eight -inch (8"} line,
DEVELOPER shall tender to the CITY the difference between such bid and the
deposit within ten (10) days of receipt of an invoice therefor from the CITY. If
the total amount tendered to the City is more than the bid of the lowest
responsible bidder received for the eight -inch (8 ") line, the CITY shall refund
such excess funds within thirty (30) days after the award of the construction
contract. The parties understand and agree that no contract will be let until
DEVELOPER has deposited the monies required herein with the CITY.
(f) The legal title to the Project and all appurtenances related thereto shall at all tunes
be vested in the CITY; and DEVELOPER shall have no claim thereto. As such,
DEVELOPER shall have no right or privilege to remove or interfere with any part
or portion of the Project during or after construction.
(g) At its own cost and expense, DEVELOPER shall repair or replace any damage or
injury done to any portion of the Project caused by DEVELOPER, its officers,
agents, employees, invitees or visitors within ten (10) days of the date on which
damage or injury occurred. If the City Manager of the City of Baytown (the "City
Manageel in his sole discretion, determines that any portion of the Project
damaged by DEVELOPER, its officers, agents, employees, invitees or visitors is
not being repaired and/or replaced in accordance with this Agreement, the City
Manager shall so notify DEVELOPER in writing and require DEVELOPER to
perform the identified work forthwith and continue diligently therewith until
completion. If more than ten days (10) are required to complete the repair or
replacement, then the CITY may, at its option, extend such period. If the
condition persists after the expiration of ten (10) days from the date of the notice
or, if applicable, from the expiration of any extension granted, the City Manager
may declare DEVELOPER in default and terminate this Agreement and seek any
other appropriate remedy which may be available to the CITY, including, but not
limited to, making such repairs or replacements at DEVELOPER's sole cost and
expense. It is understood if such repairs or replacements are made by the CITY,
DEVELOPER agrees to pay the cost thereof to the CITY on demand.
2.2 CIDD Obligations. In addition to the CITY's obligations elsewhere in this Agreement,
the CITY shall have the following obligations:
(a) After the City Engineer's final approval of the plans and specifications submitted
by the DEVELOPER in accordance with Section 2.1.c and after receipt of the
deposit required by Section 2.1.d, the CITY shall be obligated to advertise for
bids for the construction of an eight -inch (8') line and a twelve -inch (12") fine
W
ater Line Umsizing,Aam=t. Pale 2
over the length of the Project in accordance with all applicable laws. After any
additional required sums are paid by DEVELOPER pursuant to Section 2.1.e. the
CITY will award the construction of the Project to the lowest responsible bidder.
Thereafter, the CITY's contractor will begin the construction of the Project in
accordance with the approved plans and specifications and continue such
construction efforts thereafter in a diligent manner until the Project is completed
and accepted by the CITY.
(b) Upon request, the CITY shall provide an update on the status of the Project to the
DEVELOPER.
(c) After the receipt of the funds by the CITY that are required to be tendered by the
DEVELOPER herein, the CITY shall pay all costs and expenses of Project
construction, including, not by way of limitation, the costs of all materials, labor
and electricity used in connection with such construction and all license, permit or
inspection frees that may be charged in connection with such work.
(d) The legal title to the Project and all appurtenances related thereto shall at all times
be vested in the CITY, and the DEVELOPER shall have no claim thereto. As
such, the DEVELOPER shall have no right or privilege to remove or interfere
with any part or portion of the Project.
(e) Within thirty (30) days after the final completion and acceptance of the Project by
the CITY, the CITY shall return to DEVELOPER any monies on deposit for
which the City has not incurred costs.
III.
3.1 I=. Subject to and upon the terms and conditions set forth herein, this Agreement
shall continue in force and effect from the Effective Date (as hereafter defined) until the
final completion and acceptance of the Project by the CITY.
IV.
4.1 Non - Waiver. Failure of the CITY to declare any default immediately upon occurrence
thereof; or delay in taking action in connection therewith. shall not waive such default,
but the CITY shall have the right to declare any such default at any time and take such
action as might be lawful or authorized hereunder, either in law or in equity.
4.2 Default by DEVELOPER. If DEVELOPER is in default of this Agreement, then the
CITY shall have the right to declare DEVELOPER in default and immediately terminate
the Agreement without notice, unless otherwise specified herein, or exercise any other
rights or remedies available hereunder or as a matter of law. DEVELOPER is in default
of this agreement if:
Water tine Updzing Agm mend Page 3
(a) DEVELOPER fails to timely perform performance of any obligation imposed
Won DEVELOPER hereunder and does not cure the default within fifteen (15)
days (unless another period of time is specified herein) after written notice
describing the default in reasonable detail has been given DEVELOPER or, if the
City Manager in his sole discretion, determines that the default cannot reasonably
be cured within the fifteen (15) day period, if DEVELOPER does not commence
curative work within the fifteen (15) day period and prosecute the work to
completion with diligence,
(b) DEVELOPER institutes proceedings, whether voluntary or otherwise, under the
provisions of the Federal Bankruptcy Act or any other federal or state law relating
to bankruptcy or insolvency; or
(c) DEVELOPER makes any assignment of this Agreement without the written
approval of the CITY.
Should the CITY terminate this Agreement for DEVELOPER's default, the CITY will be
relieved of its obligations hereunder and DEVELOPER shall not be entitled to any
reimbursement of the costs incurred associated with the Project pursuant to Section 2.2.a.
Additionally, should this Agreement be terminated, the CITY shall be entitled to seek all
other relief which may be allowed by law. Any and all defaults declared by the CITY
shall be final and binding upon DEVELOPER.
43 Remedies Cumulative. All rights and remedies of the CITY and /or DEVELOPER under
this Agreement shall be cumulative and none shall exclude any other rights or remedies
allowed by law.
4.4 Amendments. This Agreement may not be altered, changed or amended, except by an
instrument in writing, signed by both parties hereto.
4.5 &lease. By this Agreement, the CITY does not consent to litigation or suit, and the CCTV
hereby expressly revokes any consent to litigation that it may have granted by the terns of
this Agreement 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
CIWs sovereign immunity. DEVELOPER assumes full responsibility for its obligations
under this Agreement perforated hereunder and hereby releases, relinquishes, discharges,
and holds harmless 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 DEVELOPER's
work to be performed hereunder. This release shall apply with respect to DEVELOPER's
work regardless of whether said claims, demands, and causes of action are covered in whole
or in part by insurance.
Water Line Updzing AgngienL Page 4
4.6 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the
CITY and DEVELOPER hereby agree that no claim or dispute between the CITY and
DEVELOPER 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,
DEVELOPER consents to be joined in the arbitration proceeding if DEVELOPEWs
presence is required or requested by the CITY for complete relief to be recorded in the
arbitration proceeding.
4.7 &gigpMen t. DEVELOPER shall not assign this Agreement without first obtaining the
written consent of the CITY.
4.$ Notice. Any notice required to be given under this Agreement or any statute, ordinance, or
regulation, shall be effective when given in writing and deposited in the United States mail,
certified mail, return receipt requested, or by hand- delivery, addressed to the respective
parties as follows:
CITY
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
DEVELOPER
Lone Star 5000 Corporation
Attn: President
5950 Berkshire Lane, Suite 375
Dallas, Texas 75225
4.9 Binding Et %ct. This Agreement and each provision hereof, and each and every right, duty,
obligation, and liability set forth herein shall be binding upon and inure to the benefit and
obligation of the CITY and DEVELOPER and their respective successors and assigns.
4.10 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.
4.11 Choice of Law and Venue. This Agreement is declared to be a Texas contract, and all of the
terms thereof shall be construed according to the laws of the State of Texas. The place of
making and the place of performance for all purposes shall be Baytown, Hands County,
Texas.
4.12 Ambiguities. In the event of any ambiguity in any of the terms of this Agreement, it shall
not be construed for or against any party hereto on the basis that such party did or did not
author the same.
Water Line U iang`gM;Ment. Page 5
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