Ordinance No. 12,293ORDINANCII NO. 12,
1293
AN ORDINANCE, OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
rl-.'XAS, AUTHORIZING AN INTE'RLOCAL AGREEMENT FOR AN
ELEVATED STORAGE TANK WITII CHAMBE16 COUNTY IMPROVEMENT
DISTRICT NO. 1; AUTHORIZING PAYMENT BY THE CITY OFBAYTOWN IN
AN AMOUN-I-NOTTO EXCEED ONE MILLION FIVE HUNDRI"IDTHOUSAND
AND NO/100 DOLLARS (SI,500,000.00); MAKING 0'
11
HER PROVISIONS
RELATED THERE'TO; AND PROVIDING FOR THE EFFECTIVE DATE
THEREOF,
BL" ITORDAINL'-J) BYTHE CITY COUNCIL OFTIIE, CITY OFBAYTOWN,TE'XAS:
Section 1: That the City Council oJ7 the City of Baytown, Texas, hereby authorizes the
City Manager to execute and the City Clerk to attest to an Agreement (.or an Elevated Storage Tank
with Chambers County Improvement District No. 1, A copy of said agreement is attached hereto,
marked Exhibit "A" and made a part hereof liar all intents, and purposes.
Section 2: That the City COLUICil of the City of Baytown authorizes payment in an
amount not to exceed ONE MILLION FIVE l-I(JNDRFD'I'HOUSAND AND N(')/] 00 DOLLARS
1,500,000-00) in accordance with the agreement authorized in Section I hercinabove.
Section 3: That the City Manager is hereb5, granted general authority to approve a
decrease or an increase in costs by Ill "TYTHOUSAND AND NO/100 DOLLARS ($50,,000.00) or
less, provided that the amount authorized in Section 2 hereof niay not be increased by more than
twenty five percent (251/0).
Section 4: This ordinance shall take effect imiriediatel "i-omatidaftet- itspass igebytlieate
City Council of the City of Baytown.
IN-I'RODtJCI,,"D,IZEAD,aii(I PASSED by the affii-iiiati 6, vote of the City Council offlic City
AofRaytownthisthe25"' day of" July, 2013,
ATTEST:
LETICIA BRYSCI I,
APPIZOVED AS TO FORM:
6i4ACID RAMIRFY, SR., C 1 ttorneyit—'
DONC,ARLOS, Mayor
1T RLOCAL AGREEM[,"NT FOR ELJ`VATI:,'1D STORAGE TANK
BY AND BETWf"EN
CHAMBERS COUNTY IMPROVE'MENTDISTRICT NO I
AND
CITY OF BAYTOWN
STATE'OFTE,.XAS §
COUNTY OFCHAMBERS §
his Intel-local Agreement (hereinafter called the "Agreement") is made and entered into
as of this —. day 2013, the ("Effective Date") by and between Chambers
County I rap rove rnent District No. I (the "District"), a body politic and corporate and a political
subdivision of the State of Texas, operating pursuant to Chapter 566, Act of the 73rd Legislature
of the State of Texas, and the City of Baytown, Texas (the "City"), a municipal corporation and
home, rule City of the State of Texas.
WHEREAS, the District and the City (collectively the "Parties ") desire to construct or
UILlse to have constructed a one inillion-gallon elevated storage tank (the "EST") within
Chambers County, Texas; and
WHEREAS, the Parties desire to share equally in the cost of construction of the E.ST in
accordance with the terms of this Agreement;
NOW THEREFORI"., the City and the District, in consideration of the mutual covenants,
agreements and benefits herein contained, do mutually agree as follows:
L
Elevated Storage Tank
1.01, Property. The City covenants and agrees that it will endeavor to acquire by donation or
sale property within Chambers County, Texas, as more particularly depicted in f`xhibit
which is attached hereto and incorporated herein for all intents and purposes. If the
City is unable to obtain good title to such property, the Parties agree that the City will
endeavor to acquire another site for the Construction and operation
oil
the EST as
contemplated herein, The Parties understand and agree that this Agrecinent is contingent
upon the City's acquiring a satisf1actory site for the Construction and operation of the
EST. If such contingency is not satisfied, this Agreement shall be terminated and both
Parties shall be relieved of the obligations contained herein.
1.02 Desil-, ' n. The City covenants and agrees to hire competent, experienced engineers for the
design, administration, oversight and inspection of the EST to be located on property
described in Section 1.01. The City agrees to require the engineers employed ill
furtherance of this Agreement to comply with all laws, rules or regulations of applicable
governmental authorities in order that the EIS 1" meets or exceeds the quality standards set
InterIL) aV A r rim nent, Pagel
by such applicable governmental authorities. Prior to the initiation of any construction of
the EST, the City shall Submit to the District for written approval the plans, and
specifications for the EST. No construction of the EST shall begin until such plans and
specifications are approved in writing by the District, which approval shall not be
unreasonably withheld, delayed or conditioned.
1.03 l3iddhw. After the District's approval of the plans and specifications Submitted by the
City in accordance with Section 1.02, the CITY shall be obligated to advertise for bids
l'or the construction of the EST and award a construction contract in accordance with all
applicable laws.
11.04 C011SU'LletiOn. Once as contract is awarded for the EST, the City's contractor will begin
the construction of the EST in accordance with the approved plans and speciflications, on
the property described in Section 1,01 and Continue such construction efforts thereafter in
a diligent manner until the Project is completed and accepted by the City.
1.05 Progress of Work. Upon request, the City shall provide an update of the status of the
construction of the EST' to the District.
1.06 Title. The legal title to the property described in Section 1.01 and the EST shall at all
times vest in the City and the District shall have no claim thereto.
if.
Costs
101 Responsibility for Costs.
a) Shared Costs. Except as provided in subsection (b) of' this section, the parties
agree that each shall be responsible for 50% of all costs associated with the l"--'ST
Shared Costs"), which costs shall include, but not be limited to, the following:
1) all property acquisition costs, including, but not limited to the sales price
and all costs associated with the appraisal; environmental assessment; tax
statements or certificates; preparation of deed; escrow flee; and other
expenses to be incurred by the City in obtaining good title to the property
described in Section 1.01,
2) all engineering costs associated with the design, bidding and construction
of the EST, including the costs associated with construction management
services,
3) all construction costs.
Interjocal Agreement, Paget
b) Cj1.y All costs associated with the maintenance, repair and operation
the EsT shall be borne by the City, and the District shall have no obligation for
such maintenance and operation.
c) District Sole Costs. All costs related to the District's connection of its system to
the City's water main connected to the EST shall be borne by the District and the
City shall have no obligation for such costs.
d) MaximUn. Costs. Neither Party shall be required to contribute more than ON1.,.'.
MILLION FIVE' HUNDRED THOUSAND AND NO/100 DOLLARS
1,500,000.00) for the Shared Costs referenced in Section 2,01(a) Linder this
Agreement, unless specifically agreed to in writing by the Parties.
2,02 Pavilients. The District shall tender payment to the City for the District's share of the
Shared Costs detailed in Section 2.01(a) hereinabove in accordance with the following
schedule:
100,000, which shall be paid within thirty (30) days after the execution of this
Agreement; and
50% of the Shared Costs as calculated to the date of the bid opening, which
Shared Costs shall include the bid of the lowest responsible bidder as deterinin(--,cl
by the City, which shall be paid within fifteen (15) days of receipt of notice froill
the Cit.), of the such arriount; provided that such payment shall not be due before
October 15, 2013,
All payments required of the Parties under this Agreement rmist be made from current
revenues of the paying party,
2.03 AdjUS(InCrItS.
a) Additional Shared Costs. 11 " during the construction of the Es,r, 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
City may approve a change order for the increased costs. The District shall be
required to pay 50% of any such increase. Ifthe District's portion of the increase
cannot be covered with the monies previously received from the District by the
City pursuant to Section 2.02, the District shall pay its portion of the increase
within fifteen (15) days of receipt of all invoice ther6or fi -orn the City.
b) Overpayment. Within ninety (90) days after completion of tile Project al"Id
acceptance thereof by the City, the City shall refund to the District any funds paid
to the City by the District in excess of fifty percent (50%) ofthe Shared Costs.
2,04 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
Interlocal Agreement 1 agO
perCormance under this iAgreernent during the period of performance of this Agreement
and for three (3) years thereafter.
Ill,
Terni,and Termination
3.01 Term. Subject to and upon the terms and conditions set forth herein, this Agreement
shall continue ill force and effect trom the Effective Date until the final completion of
the 1: ST acceptance thereol'by the City.
102 Termination. If either Party shall at any time fail or refuse to comply with or carry out
any of the conditions contained in this Agreement and such failure or refusal shall
Continue for a period of thirty (30) days after written demand for such performance or
compliance, the non-breaching party, may, at its CICCAi011, WithOUt notice forthwith revoke
and terminate this Agreement by delivering "Notice of Terin i nation" to tile breaching
party. In the event of termination caused by breach of the Agreerrient by the City, the
District shall not be entitled to any refund or reimbursement of' costs frorn the City for
work or services performed on or before the date of termination. In the event of
termination caused by breach of the Agreement by the I..)istriet, the District shall not be
entitled to any refund or reirribursement of costs from the City and shall be liable 161- 50%
of'the Share Costs in accordance with Article 11,
3.03 Force Maieure. If force inajeure prevents either Party hereto from performing any of its
obligations under this Agreement, in whole or in part, then tile 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 resurne Perfiormance
at the earliest practicable time. As soon as reasonably possible after occurrence of the
force nu-kicure relied upon, the Party whose contractual obligations are affected thereby
shall give notice and full particulars of such force rnkjeurc to tile 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 Stale of Texas or
any civil or military authority, iffiUrrections, 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 clainaing such inability, and ,vhich such party Could not
have avoided by the exercise of'dUe diligence and care.
lv.
General Provisions
4.01 No Waiver, No waiver or waivers of any breach or default (or any breaches or defaults)
by either party hereto of any term, covenant, condition, or liability hereunder, or of
LnLeL1qqq1 Agreement, Page4
performance by the other party of any duty or obligation hereunder, shall be deemed or
construed to be a waiver of" subsequent breaches or dCftaL1ItS of any kind, under any
circumstances.
4.02 Notice. Unless otherwise provided in this Agreement, any notice, communication,
request, reply, or advice (herein severally and collectively, for convenience, called
Notice") herein provided or permitted to be given, made, or accepted by either party to
the other must be in writing and may be given or be served by depositing the same in tile
United States mail postpaid and registered or certified and addressed to the party to be
notified, with return receipt requested, or by delivering the same to an officer of such
party addressed to tile party to be notified. Notice deposited in the mail in the manner
hereinabove described shall be conclusively deemed to be effective, unless otherwise
stated in this Contract, fi•oin and after the expiration of four (4) days after it is so
deposited. Notice given in any other manner shall be effective only if and when received
by the party to be notified. l"or the purpose: of notice, the addresses of the parties shall,
until changed as hereinafter provided, be as 1`61lows:
If to the District, to:
Chambers County Improvement District No. I
c/o Smith, Murdaugh, Little & Bonham, L.L.P.
1 100 Louisiana Street, Suite 400
Houston, Texas 77002
If to the City, to:
City of Baytown
Attn: City Manager
2401 Market Street
Baytown, "I'exas 77520
The parties shall have the right from time to tirrie and at any time to change their
respective addresses and each shall have the right to specify any other address by at least
three (3) days' written notice to the other party.
4.03 Modification. 'Phis Agreement shall be subject to change or modification only in writing
and with the mutual consent of the parties.
4.04 Assignment. It is expressly agreed that neither party may sell, assign, or transfer any (:)f
its rights or obligations under this Agreement in whole or in part during tile term hereof,
4.05 Severability. The provisions of this Agreement are severable, and if any provision or part
of this Agreement or the application thereof to any person or circumstance shall ever be
field by any Court of cornpetein, jurisdiction to be invalid or unconstitutional for any
reason, the remainder of this Agreenient with respect to other persons or circurnstances
shall not be affected thereby.
Interlocal Ag,TemenljageS
4.06 Corriolete A.reerrient. 'I"Ills Agreement constitutes the entire agreement bem-een the
parties relative to the subrject matter hereof. 'There have been and are no agreenlents,
covenants, representations or warranties between the parties other than those stated or
provided for herein.
4.07 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.
4.08 Release. By this Agreement, the Parties do not consent to litigation or suit, and tile
Parties hereby expressly revoke any consent to litigation that may have been granted by
tile terms of this Contract or any other contract or agreement, any char -ter, or applicable
state law. Nothing contained herein shall be construed in any way so as to waive in
whole or part tile sovereign immunity of either Party.
4.09 Choice of Law and Venue. 'rhis. Agreement shall in. all respects be interpreted and
construed in accordance with and governed by the laws of the State of Texas, regardless
of the place of its execution or pct•forniance. The parties agree that Venue shall be in
I larris County, 'Fexas.
4.10 Interpretation. 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 oil the basis that such party did or
did not author the same.
4,11 Parties in Interest. 'I
I his Agreement shall be for the sole and exclusive benefit of tile
parties hereto and shall not be construed to coriller 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 faiture to perform its obligations under this Agreement.
4.12 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.
4.13 Caption,s. The captions appearing at the first, of each nurribered 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, Page6,
4.14 Authority. , Fhe officers executing this Agreement on behalf' of the parties hereby,
represents that such officers have full authority to execute this Agreement and to bind the
Marty he/she represents.
4,15 Agreement Read. The parties acknowledge that they have read, understand and intend to
be bound by the terms and conditions of this Agreement.
IN WITNESS WHERE"OF, the parties hereto have executed this Agreement in multiple
copies, each of which shall be cleemed to be pan original, as of the date and year first written
above.
CHAMBERS COUNTY IMPROVEMI-INT
DISTRICT NO. I
resident
ATTEST:
Secretary
CITY OF BAYTOWN
STL"I"HE'N 1-1. DONCARLOS, Mayor
ATTEST:
LETICIA BRYSCIJ, City Clerk
APPROVEE) AS'rO FORM:
IGNACIO RAMIREZ, SR., City Attorney
I Water ES'I'\Iiitei-loczilAgree iiciil4C'C''ll)fI I
Interlocal Agreement, Pagel
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