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Ordinance No. 9,560
ORDINANCE NO. 9560 AN ORDINANCE OF 'THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, MAKING A CHANGE IN THE CITY OF BAYTOWN'S FISCAL YEAR 2002 -2003 BUDGET FOR MUNICIPAL PURPOSES IN ORDER TO REPROGRAM FUNDS FROM THE BIG MISSOURI LIFT STATION PROJECT TO THE WEST BAYTOWN SEWER REHABILITATION PROJECT, THE STEINMAN SEWER REHABILITATION PROJECT, AND THE EVA MAUDE SEWER REHABILITATION PROJECT; MAKING OTHER REPRESENTATIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, the City of Baytown's adopted budget for fiscal year 2002 -2003 includes EIGHT HUNDRED FIFTY THOUSAND AND N01100 DOLLARS ($850,000.00) for construction of the Big Missouri Lift Station Project; and WHEREAS, funding can be delayed for the Big Missouri Lift Station Project since the project is in the design phase and it is not reasonably anticipated that construction funds will be required this fiscal year; and WHEREAS, the City of Baytown's staff has determined that a better utilization of the EIGHT HUNDRED FIFTY THOUSAND AND NO /100 DOLLARS ($850,000.00) in funding would be to perform as follows: 9 $250,000 for the design costs of the West Baytown Sewer Rehabilitation Project to allow its design to begin this fiscal year; ➢ $100,000 for the Steinman Sewer Rehabilitation Project to allow work to continue on the project; and $500,000 for the Eva Maude Sewer Rehabilitation Project to allow expeditious completion of the project; and WHEREAS, the City Council believes that reprogramming the funds as recommended by the City of Baytown's staff would be the best use of the funds; NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown hereby changes in the City of Baytown's Fiscal Year 2002 -2003 budget for municipal purposes to reprogram EIGHT HUNDRED FIFTY THOUSAND AND NO 1100 DOLLARS ($850,000.00) from the Big Missouri Lift Station Project to the West Baytown Sewer Rehabilitation, Steinman Sewer Rehabilitation, and Eva Maude Sewer Rehabilitation Projects as more particularly described in Exhibit "A," which is attached hereto 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, Texas. • INTRODUCED, READ and PASSED, by the affirmative vote of the City Council of the City of Baytown this the 81i day of May, 2003. x, c. PETE C. ALFARO, Ma or ATTEST: &A W TMITH, City Clerk APPROVED AS TO FORM: ACIO RAMIREZ, SR ity Attorney FAKarenTiles\City Council\ Ordinances \ReprogrammingPunds4Uti lityProjects.doc 2 • • CITY OF BAYTOWN FY 2003 CAPITAL IMPROVEMENT PROGRAM (CIP) BUDGET UTILITY CAPITAL IMPROVEMENT PROJECTS SUMMARY 2003 Proposed Revised Project Description Budget Reprogramming Budget Rehabilitation Projects Miscellaneous Rehab & Emergencies West Main Elevated Storage Tank West Baytown Sewer Pinehurst I Sewer Texas Ave & Gulf Coast Lift Stations Big Missouri Lift Station & Force Mai School Courts Sewer Eva Maude Sewer Kingsbend Sewer Steinman (W. District) Sewer Subtotal: $ 1,000,000 $ 1,000,000 500,000 500,000 - 250,000 250,000 250,000 250,000 530,000 530,000 1,490,000 (850,000) 640,000 250,000 250,000 330,000 500,000 830,000 1,200,000 1,200,000 125,000 100,000 225,000 5,675,000 - 5,675,000 Utility System Improvement Projects Loop Water Lines 78,000 78,000 Subtotal: 78,000 - 78,000 Bond Issuance Costs 77,000 77,000 Total Utility Improvements S 5,830,000 $ - `; 51830,000 EM A 5/5 /2003 9:28 AM 5 -08 -03 Utility Capital Improvement Program.xls ORDINANCE NO. 9559 • AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH LOCKWOOD, ANDREWS, & NEWNAM, INC., FOR THE KINGSBEND SANITARY SEWER REHABILITATION PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT OF ONE HUNDRED FIFTEEN THOUSAND SIX HUNDRED SIXTY - TWO AND NO /100 DOLLARS ($115,662.00); MAKING OTHER PROVISIONS RELATED THERETO; 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 to execute a professional services agreement with Lockwood, Andrews, & Newnam, Inc. for the Kingsbend Sanitary Sewer Rehabilitation Project. A copy of said agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to Lockwood, Andrews, & Newnam, Inc., in an amount not to exceed ONE HUNDRED FIFTEEN THOUSAND SIX HUNDRED SIXTY -TWO AND NO /100 DOLLARS ($115,662.00) for engineering services in accordance with the contract. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by TWENTY -FIVE THOUSAND AND NO 1100 DOLLARS ($25,000.00) or less, provided that the amount authorized in Sections 2 hereof may not be increased by more than twenty-five percent (25 %). Section 4: 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 8" day of May, 2003. PETE G ALFARO, Mayor ATTEST: GUY W. /S City Clerk APPROVED AS TO FORM: I ACIO RAMIREZ, SC.Kity Attorney FAKaren\riles\City Council\ Ordinances\ LANKings $endSanitarySewerProject.doe STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS AGREEMENT effective as of Between The City of Baytown ( "OWNER ") and ( "Effective Date ") Lockwood, Andrews & Newnam, Inc. ( "ENGINEER" OWNER intends to Advertise and bid a sanitary sewer rehabilitation project for the Kings Bend Subdivision. The projects consists of approximately 14,000 linear feet of sanitary sewer to be rehabilitated or replaced and approximately 45 manholes to be rehabilitated ( "Project "). OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows: • Standard Form of Agreement Between Owner and Engineer for Professional Services Page 1 of 12 EMIT A • TABLE OF CONTENTS Page ARTICLE1 - SERVICES OF ENGINEER ........................................................................................... ..............................3 1.01 Scope .................................................................................................................................... ..............................3 ARTICLE 2 - OWNER'S RESPONSIBILITIES ................................................................................... ..............................3 2.01 General ................................................................................................................................. ..............................3 ARTICLE 3 - TIMES FOR RENDERING SERVICES ...................................................................... ............................... 3 3.01 General .................. ... ................. -- .................................................................................. ................................... 3 3.02 Suspension .......................................................................................................................... ............................... 3 ARTICLE4 - PAYMENTS TO ENGINEER.. ....................... ........................................................... - ............................... 3 4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER .............. ............................... 3 4.02 Other Provisions Concerning Payments ............................................................................. ............................... 3 ARTICLE5 - OPINIONS OF COST ..................................................................................................... ..............................4 5.01 Opinions of Probable Construction Cost ............................................................................ ..............................4 5.02 Designing to Construction Cost Limit ............................................................................... ..............................4 5.03 Opinions of Total Project Costs ........................................................................................ ............................... 4 ARTICLE 6 - GENERAL CONSIDERATIONS ............................................... :.......................... ....................................... 4 6.01 Standards of Performance ................................................................................................... ............................... 4 6.02 Authorized Project Representatives ................................................................................... ............................... 5 6.03 Design without Construction Phase Services ..................................................................... ............................... 5 6.04 Use of Documents ....................................................................................-........................ ............................... 5 6.05 Insurance ............................................................................................................................. ............................... 6 6.06 Termination ........................................................................................ ............................... .............................6 6.07 Controlling Law.. ......................................................................... — ................................................................... 7 6.08 Successors, Assigns, and Beneficiaries ............................................................................... ..............................7 6.09 Dispute Resolution .............................................................................................................. ............................... 7 6.10 Hazardous Environmental Condition .................................................................................. ..............................7 6.11 Allocation of Risks ............................................................................................................. ............................... 8 6.12 Notices ................................................................................................................................ ............................... 8 6.13 Survival ................................................................................................................................ ..............................8 6.14 Severability .......................................................................................................................... ..............................8 6.15 Waiver .................................................................................................................................. ..............................8 6.16 Headings .............................................................................................................................. ..............................8 ARTICLE7 - DEFINITIONS .......................... ................................................................. .. .......................... ....................... 8 7.01 Defined Terms .................................................................................................................... ..............................8 ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS .................................................................. .............................11 8.01 Exhibits Included .............................................................................................................. ............................... 11 8.02 Total Agreement ................................................................................................................ ..............................1 I • Standard Form of Agreement Between Owner and Engineer for Professional Services Page 2 of 12 • • ARTICLE 1 - SERVICES OF ENGINEER 1.01 Scope A. ENGINEER shall provide the Basic and Additional Services set forth herein and in Exhibit A. B. Upon this Agreement becoming, effective, ENGINEER is authorized to begin Basic Services as set forth in Exhibit A. C. If authorized by OWNER, ENGINEER shall furnish Resident Project Representative(s� with duties, responsibilities and limitations of authority as set forth in Exhibit D. ARTICLE 2 - OWNER'S RESPONSIBILITIES 2.01 General A. OWNER shall have the responsibilities set forth herein and in Exhibit B. ARTICLE 3 - TIMES FOR RENDERING SERVICES 3.01 General A. (Modified) ENGINEER's services and compensation under this Agreement have been agreed to for the design of the Project. ENGINEER's obligation to render services hereunder will be for whatever period necessary for the final completion of said services. B. (Deleted). C. (Modified) For purposes of this Agreement the term "day" means a calendar day of 24 hours. 3.02 Suspension A. (Modified) If OWNER fails within a reasonable period of time to give written authorization to proceed with any phase of services after completion of the immediately preceding phase, or if OWNER delays ENGINEER's services, ENGINEER may, after giving seven days written notice to OWNER, suspend services under this Agreement. If during such seven -day period, OWNER gives written authorization to proceed or ENGINEER'S services are no longer delayed by OWNER, ENGINEER may not suspend services under this Agreement. B. (Modified) If ENGINEER's services are delayed or suspended in whole or in part by OWNER, ENGINEER shall be 'entitled to equitable adjustment of rates and amounts of compensation provided for elsewhere in this Agreement to reflect, reasonable costs incurred by ENGINEER in connection with, among other things, such delay or suspension and reactivation and the fact that the time for performance under this Agreement has been revised. ARTICLE 4 - PAYMENTS TO ENGINEER 4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER A. For Basic Services. OWNER shall pay ENGINEER for Basic Services performed or fumished under Exhibit A, Part 1, as set forth in Exhibit C. B. For Additional Services. OWNER shall pay ENGINEER for Additional Services performed or furnished under Exhibit A, Part 2, as set forth in Exhibit C. C. (Modified) For Reimbursable Expenses. ' In addition to payments provided for in paragraphs 4.0l.A and 4.013, OWNER shall pay ENG1 EER for Reimbursable Expenses incurred by ENGINEER and ENGINEER's Consultants as set forth in Exhibit C. However, all expenses associated with meals and lodging must be approved in writing by OWNER prior to ENGINEER incurring any expense associated therewith; otherwise, the parties hereto agree and understand that OWNER shall not be liable and ENGINEER shall not make a claim against OWNER for any such expenses. 4.02 Other Provisions Concerning Payments A. Preparation of Invoices. Invoices will be prepared in accordance with ENGINEER's standard invoicing practices and will be submitted to OWNER by ENGINEER, unless otherwise agreed. ENGINEER shall supply detailed back -up information along with each invoice in order for the OWNER to effectively evaluate the fees and charges. The amount billed in each invoice will be calculated as set forth in Exhibit C. B. (Modified) Payment of Invoices. Invoices are due and payable within 30 days after the receipt of the invoice and the necessary backup information. If OWNER fails to make any payment due ENGINEER for services and expenses within 30 days after receipt of ENGINEER's invoice and backup documentation therefor, the amounts due ENGINEER will be increased at the rate of 1.0% per month (or the maximum rate of interest permitted by law, if less) after the 30th day. ENGINEER may after giving seven days written Standard Form of Agreement Between Owner and Engineer for Professional Services Page 3of12 • • notice to OWNER suspend services under this Agreement until ENGINEER has been paid in full all amounts due for services, expenses, and other related charges. However, it is expressly understood and agreed that ENGINEER will not charge any interest or penalty as set forth herein on any portion of an invoice that is disputed and withheld in accordance with paragraph 3.02.0 and that ENGINEER will not suspend services under the agreement on account of a disputed invoice or on account of monies withheld. All payments will be credited first to principal and then to interest. C. Disputed Invoices. In the event of a disputed or contested invoice, only that portion so contested may be withheld from payment, and the undisputed portion will be paid. D. Payments Upon Termination. In the event of any termination under section 6.06, ENGINEER will be entitled to invoice OWNER and will be paid in accordance with Exhibit C for all services performed or furnished and all Reimbursable Expenses incurred through the effective date of termination. 2. (Deleted) E. (Modified) Records of ENGINEER's Costs. Records of ENGINEER's costs pertinent to ENGINEER's compensation under this Agreement shall be kept in accordance with generally accepted accounting practices. Copies of such records will be made available to OWNER upon request at no cost to OWNER. F. Legislative Actions. In the event of legislative actions after the Effective Date of the Agreement by any level of government that impose tares, fees, or costs on ENGINEER's services or other costs in connection with this Project or compensation therefor, such new taxes, fees, or costs shall be invoiced to and paid by OWNER as a Reimbursable Expense to which a Factor of 1.0 shall be applied. Should such tares, fees, or costs be imposed, they shall be in addition to ENGWEER's estimated total compensation. ARTICLE 5 - OPINIONS OF COST 5.01 Opinions of Probable Construction Cost A. ENGINEER's opinions of probable Construction Cost provided for herein are to be made on the basis of ENGINEER's experience and qualifications and represent ENGINEER's best judgment as an experienced and qualified professional generally familiar with the industry. However, since ENGINEER has no control over the cost of labor, materials, equipment, or services furnished by others, or over the Contractor's methods of determining prices, or over competitive bidding or market conditions, ENGINEER cannot and does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost prepared by ENGINEER. If OWNER wishes greater assurance as to probable Construction Cost, OWNER shall employ an independent cost estimator as provided in Exhibit B. 5.02 Designing to Construction Cost Limit A. If a Construction Cost limit is established between OWNER and ENGINEER, such Construction Cost limit and a statement of ENGINEER's rights and responsibilities with respect thereto will be specifically set forth in Exhibit F, "Construction Cost Limit," to this Agreement. (Exhibit F is not used). 5.03 Opinions of Total Project Costs A. ENGINEER assumes no responsibility for the accuracy of opinions of Total Project Costs. ARTICLE 6 - GENERAL CONSIDERATIONS 6.01 Standards of Performance A. (Modified) The standard of care for all professional engineering and related services performed or furnished by ENGINEER under this Agreement will be the care and skill ordinarily used by members of ENGINEER's profession practicing under similar circumstances at the same time and in the same locality. B. (Modified) ENGINEER shall be responsible for the technical accuracy of its services and documents resulting therefrom, and OWNER shall not be responsible for discovering deficiencies therein. ENGINEER shall correct such deficiencies without additional compensation except to the extent such action is directly attributable to deficiencies in OWNER - furnished information upon which ENGINEER is authorized to rely as provided in Section 6.01.E. C. ENGINEER shall perform or furnish professional engineering and related services in all phases of the Project to which this Agreement applies. ENGINEER shall serve as OWNER's prime professional for the Project. ENGINEER may employ such ENGINEER's Consultants as ENGINEER deems necessary to assist in the performance or furnishing of the services. ENGINEER shall not be required to employ any ENGINEER's Consultant unacceptable to ENGINEER. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 4 of 12 • D. ENGINEER and OWNER shall comply with applicable Laws or Regulations and OWNER- mandated standards. This Agreement is based on these requirements as of its Effective Date. Changes to these requirements after the Effective Date of this Agreement may be the basis for modifications to OWNER's responsibilities or to ENGINEER's scope of services, times of performance, or compensation. E. (Modified) OWNER shall be responsible for, and ENGINEER may rely upon, the accuracy and completeness of all requirements, programs, instructions, reports, data, and other information furnished by OWNER to ENGINEER pursuant to this Agreement, . unless expressly stated or communicated otherwise by OWNER. ENGINEER may use such requirements, reports, data, and information in performing or furnishing services under this Agreement. F. ONVNER shall make decisions and carry out its other responsibilities in a timely manner and shall bear all costs incident thereto so as not to delay the services of ENGINEER. G. Prior to the commencement of the Construction Phase, OWNER shall notify ENGINEER of any variations from the language indicated in Exhibit E, "Notice of Acceptability of Work," or of any other notice or certification that ENGINEER will be requested to provide to OWNER or third parties in connection with the Project. OWNER and ENGINEER shall reach agreement on the terms of any such requested notice or certification, and OWNER shall authorize such Additional Services as are necessary to enable ENGINEER to provide the notices or certifications requested. H. (Modified) ENGINEER shall not be required to sign any documents, no matter by whom requested, that would result in ENGINEER's having to certify, guarantee or warrant the existence of conditions whose existence ENGINEER cannot ascertain; provided, that ENGINEER has exercised due diligence and was not otherwise required to certify, guarantee or warrant the existence of such conditions. I. During the Construction Phase, ENGINEER shall not supervise, direct, or have control over Contractor's work, nor shall ENGINEER have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to the Contractor's work in progress, nor for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. J. (Modified) ENGINEER neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform the Work in accordance with the Contract Documents. However, nothing contained in this paragraph shall be construed so as to absolve ENGINEER from liability for any such failure about which ENGINEER knew or should have known existed in the exercise of ENGINEER's services under this Agreement. K. (Modified) ENGINEER shall not be responsible for the acts or omissions of any Contractor(s), subcontractor or supplier, or of any of the Contractor's agents or employees or any other persons (except ENGINEER's own employees and its consultants for which it is legally liable) at the Site or otherwise furnishing or performing any of the Contractor's work; or for any decision made on interpretations or clarifications of the Contract Documents given by OWNER without consultation and advice of ENGINEER. L. (Modified) The General Conditions for any construction contract documents prepared hereunder are to be the Standard Form of Agreement between Owner and Contractor and as approved by OWNER in writing. 6.02 Authorized Project Representatives A. Contemporaneous with the execution of this Agreement, ENGINEER and OWNER shall- designate specific individuals to act as ENGINEER's and OWNER's representatives with respect to the services to be performed or furnished by ENGINEER and responsibilities of OWNER under this Agreement. Such individuals shall have authority to transmit instructions, receive information, and render decisions relative to the Project on behalf of each respective party. 6.03 Design without Construction Phase Services A. Should OWNER provide Construction Phase services with either OWNER's representatives or a third party, ENGINEER's Basic Services under this Agreement will be considered to be completed upon completion of the Final Design Phase or Bidding or Negotiating Phase as outlined in Exhibit A. B. It is understood and agreed that if ENGINEER's Basic Services under this Agreement do not include Project observation, or review of the Contractor's performance, or any other Construction Phase services, and that such services will be provided by OWNER, then OWNER assumes all responsibility for interpretation of the Contract Documents and for construction observation or review and waives any claims against the ENGINEER that may be in any way connected thereto. 6.04 Use of Documents A. (Modified) Upon execution of this Agreement, the ENGINEER grants to the OWNER an ownership interest in Standard Form of Agreement Between Owner and Engineer for Professional Services Page 5of12 :7 • the Instruments of Service. The ENGINEER shall obtain similar interests from the OWNER and the ENGINEER's consultants consistent with this Agreement. Within seven days of any termination or expiration of this Agreement, the ENGINEER shall be required to tender to OWNER all Instruments of Service; provided OWNER has paid all monies, excluding any disputed amount, due and owing to ENGINEER in accordance with this Agreement. With such ownership interest, it is expressly understood by the parties hereto that the OWNER may use the Instruments of Service for any purposes which the OWNER sees fit, including, but not limited to, subsequent construction, reconstruction, alteration, and/or repairs of the Project. As a condition to the OWNER's use of the Instruments of Service, the OWNER hereby expressly agrees to remove the ENGINEER's name and all references to the ENGINEER, and its consultants from the Documents. The OWNER hereby releases any and all claims which the OWNER could make arising out of or in connection with any reuse of the documents by the OWNER. This release of claims for the matters covered in this Paragraph 6.04.A shall be for the benefit of the ENGINEER, its officers, and employees and sub - consultants, as well as their successors and assigns. B. (Modified) Copies of OWNER - furnished data that may be relied upon by ENGINEER are limited to the printed copies that are delivered to ENGINEER pursuant to Exhibit B unless otherwise expressly stated or communicated by OWNER. Files in electronic media format of text, data, graphics, or of other types that are furnished by OWNER to ENGINEER are only for convenience of ENGINEER. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. C. Copies of Documents that may be relied upon by OWNER are limited to the printed copies (also known as hard copies) that are signed or sealed by the ENGINEER. Files in electronic media format of text, data, graphics, or of other types that are furnished by ENGINEER to OWNER are only for convenience of OWNER. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. D. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. The party delivering the electronic files will correct any errors detected within the 60 -day acceptance period. ENGINEER shall not be responsible to maintain documents stored in electronic media format after acceptance by OWNER. E. When transferring documents in electronic media format, ENGINEER makes no representations as to long -term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by ENGINEER at the beginning of this Project. F. (Modified) Any use of the Documents on any extension of the Project or on any other project shall be at OWNER's sole risk and OWNER hereby releases ENGINEER from any liability associated solely with the reuse of the Documents. G. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. H. Any verification or adaptation of the Documents for extensions of the Project or for any other project will entitle ENGINEER to further compensation at rates to be agreed upon by OWNER and ENGINEER. 6.05 Insurance A. ENGINEER shall procure and maintain insurance as set forth in Exhibit G, "Insurance." B. Not used. C. Not used. D. Not used. E. Not used. F. At any time, OWNER may request that ENGINEER, at OWNER's sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. If so requested- by OWNER, with the concurrence of ENGINEER, and if commercially available, ENGINEER shall obtain and shall require ENGINEER's Consultants to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by OWNER, and Exhibit G will be supplemented to incorporate these requirements. 6.06 Termination A. (Modified) The obligations hereunder may be terminated: 1. For cause, a. (Modified) By either party upon 30 days written notice in the event of failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party; or Standard Form of Agreement Between Owner and Engineer for Professional Services Page 6 of 12 J • b. By ENGINEER upon seven days written notice if ENGINEER is being requested by OWNER to famish or perform services contrary to ENGINEER's responsibility as a licensed professional. c. Notwithstanding the foregoing, this Agreement will not terminate as a result of such substantial failure if the party receiving such notice begins, within seven days of receipt of such notice, to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt thereof; provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same then the cure period provided for herein shall extend up to, but in no case more than 60 days after the date of receipt of the notice. 2. For convenience by OWNER effective upon the receipt of notice by ENGINEER. B. Not used. 6.07 Controlling Law A. This Agreement is to be governed by the law of the state in which the Project is located. 6.08 Successors, Assigns, and Beneficiaries A. OWNER and ENGINEER each is hereby bound and the partners, successors, executors, administrators and legal representatives of OWNER and ENGINEER (and to the extent permitted by paragraph 6.08.13 the assigns of OWNER and ENGINEER) are hereby bound to the other party to this Agreement and to the' partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements and obligations of this Agreement. B. Neither OWNER nor ENGINEER may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise in this Agreement: 1. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by OWNER or ENGINEER to any Contractor, Contractor's subcontractor, supplier, other individual or entity, or to any surety for or employee of any of them. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of OWNER and ENGINEER and not for the benefit of any other party. The OWNER agrees that the substance of the provisions of this paragraph 6.08.0 shalt appear in the Contract Documents. 6.09 Not Used. 6.10 Hazardous Environmental Condition A. OWNER represents to Engineer that to the best of its knowledge a Hazardous Environmental Condition does not exist. B. (Modified) OWNER has disclosed to the best of its knowledge and belief to ENGINEER the existence of all Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Material located at or near the Site, including type, quantity and location. C. (Modified) If a Hazardous Environmental Condition is encountered or alleged, ENGINEER shall have the obligation to notify OWNER on or before the next business day of the same. D. It is acknowledged by both parties that ENGINEER's scope of services does not include any services related to a Hazardous Environmental Condition. In the event ENGINEER or any other party encounters a Hazardous Environmental Condition, ENGINEER may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until OWNER: (i) retains appropriate specialist consultant(s) or contractor(s) to identify and, as appropriate, abate, remediate, or remove the Hazardous Environmental Condition; and (ii) warrants that the Site is in full compliance with applicable Laws and Regulations. E. OWNER acknowledges that ENGINEER is performing professional services for OWNER and that ENGINEER is not and shall not be required to become an "arranger," "operator," "generator," or "transporter" of hazardous substances, as defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1990 (CERCLA), which are or may be encountered at or near Standard Form of Agreement Between Owner and Engineer for Professional Services Page 7 of 12 • • the Site in connection with ENGNEER's activities under this Agreement. F. If ENGINEER's services under this Agreement cannot be performed because of a Hazardous Environmental Condition, the existence of the condition shall justify ENGNEER's terminating this Agreement for cause on 30 days notice. 6.11 Allocation of Risks A. (Modified) Indemnification. See Exhibit K. 6.12 Notices A. (Modified) Any notice required under this Agreement will be in writing, addressed to the appropriate party at its address on the signature page and given personally, or by registered or certified mail postage prepaid, or by a commercial courier service. Additionally, notices may be given via facsimile or by electronic mail if such notice is also given personally, or by registered or certified mail or by a commercial courier service. All notices shall be effective upon the date of receipt. 6.13 Survival A. (Modified) All express representations, indemnifications, and limitations of liability included in this Agreement will survive its completion or termination for any reason. 6.14 Severability A. Any provision or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and ENGINEER, who agree that the Agreement shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 6.15 Waiver A. Non- enforcement of any provision by either party shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. 6.16 Headings A. The headings used in this Agreement are for general reference only and do not have special significance. ARTICLE 7 - DEFINITIONS 7.01 Defined Terms A. Wherever used in this Agreement (including the Exhibits hereto) and printed with initial or all capital letters, the terms listed below have the meanings indicated, which are applicable to both the singular and plural thereof. 1. Addenda -- Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Documents. 2. Additional Services - -The services to be performed for or furnished to OWNER by ENGINEER in accordance with Exhibit A, Part 2 of this Agreement. 3. Agreement- -This "Standard Form of Agreement between OWNER and ENGINEER for Professional Services," including those Exhibits listed in Article 8 hereof. 4. Application for Payment - -The form acceptable to ENGINEER which is to be used by Contractor in requesting progress or final payments for the completion of its Work and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 5. Asbestos- -Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 6. Basic Services - -The services to be performed for • or furnished to OWNER by ENGINEER in accordance with Exhibit A, Part 1, of this Agreement. 7. Bid - -The offer or proposal of the bidder submitted on the prescribed form setting forth the prices for the Work to be performed. 8. Bidding Documents - -The advertisement or invitation to Bid, instructions to bidders, the Bid form and attachments, the Bid bond, if any, the proposed Contract Documents, and all Addenda, if any. 9. Change Order —A document recommended by ENGINEER, which is signed by Contractor and OWNER to authorize an addition, deletion or revision in the Work, or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Construction Agreement. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 8 of 12 • • 10. Construction Agreement- -The written instrument which is evidence of the agreement, contained in the Contract Documents, between OWNER and Contractor covering the Work. 11. Construction Contract —The entire and integrated written agreement between the OWNER and Contractor concerning the Work. 12, Construction Cost- -The cost to OWNER of those portions of the entire Project designed or specified by ENGINEER. Construction Cost does not include costs of services of ENGINEER or other design professionals and consultants, cost of land, rights -of -way, or compensation for damages to properties, or OWNER's costs for legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project, or the cost of other services to be provided by others to OWNER pursuant to Exhibit B of this Agreement. Construction Cost is one of the items comprising Total Project Costs. 13. (Modified) Contract Documents -- Documents that establish the rights and obligations of the parties engaged in construction and include the Construction Agreement between OWNER and Contractor and all documents referenced therein, Addenda (which pertain to the Contract Documents), Contractor's Bid (including documentation accompanying the Bid and any post -Bid documentation submitted prior to the notice of award) when attached as an exhibit to the Construction Agreement, the notice to proceed, the bonds, appropriate certifications, insurance documents the General Conditions, the Supplementary Conditions, the Specifications and the Drawings as the same are more specifically identified in the Construction Agreement, together with all Written Amendments, Change Orders, Work Change Directives, Field Orders, and ENGINEER's written interpretations and clarifications issued on or after the Effective Date of the Construction Agreement. Approved Shop Drawings and the reports and drawings of subsurface and physical conditions are not Contract Documents. 14. Contract Price - -The moneys payable by OWNER to Contractor for completion of the Work in accordance with the Contract Documents and as stated in the Construction Agreement. 15. Contract Times - -The numbers of days or the dates stated in the Construction Agreement to: (i) achieve Final Completion, and (ii) complete the Work so that it is ready for final payment as evidenced by ENGINEER's written recommendation of final payment. 16. Contractor - -An individual or entity with whom OWNER enters into a Construction Agreement. 17. Correction Period —The time after Final Completion during which Contractor must correct, at no cost to OWNER, any Defective Work, normally one year after the date of Final Completion or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee or specific provision of the Contract Documents. 18. Defective - -An adjective which, when modifying the word Work, refers to Work that is unsatisfactory, faulty, or deficient, in that it does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test, or approval referred to in the Contract Documents, or has been damaged prior to ENGINEER's recommendation of final payment. 19. Documents - -Data, reports, Drawings, Specifications, Record Drawings, and other deliverables, whether in printed or electronic media format, provided or furnished in appropriate phases by ENGINEER to OWNER pursuant to this Agreement. 20. Drmvings- -That part of the Contract Documents prepared or approved by ENGINEER which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings are not Drawings as so defined. 21. Effective Date of the Construction Agreement- - The date indicated in the Construction Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Construction Agreement is signed and delivered by the last of the two parties to sign and deliver. 22. Effective Date of the Agreement - -The date indicated in this Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. 23. ENGINEER's Consultants -- Individuals or entities having a contract with ENGINEER to furnish services with respect to this Project as ENGINEER's independent professional associates, consultants, subcontractors, or vendors. The term ENGINEER includes ENGINEER's Consultants. 24. Field Order —A written order issued by ENGINEER which directs minor changes in the Work but which does not involve a change in the Contract Price or the Contract Times. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 9 of 12 • 0 25. Final Completion shall mean that all work has been completed, all final punch list items have been inspected and satisfactorily completed, all payments to subcontractors have been made, all documentation and warranties have been submitted, all closeout documents have been executed and approved by the OWNER, and the Project has been finally accepted by the OWNER. 26. General Conditions -That part of the Contract Documents which sets forth terms, conditions, and procedures that govern the Work to be performed or furnished by Contractor with respect to the Project. 27. Hazardous Environmental Condition --The presence at the Site of Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Materials in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 28. Ha= ardour Waste- -The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 29. Lmvs and Regulations; Lmvs or Regulations- - Any and all applicable laws, rules, regulations, ordinances, codes, standards, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 30. PCB's -- Polychlorinated biphenyls. 3I. Petroleum-- Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non - Hazardous Waste and crude oils. 32. Radioactive Materials— Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 33. Record Drmvings- -The Drawings as issued for construction on which the ENGINEER, upon completion of the Work, has shown changes due to Addenda or Change Orders and other information which ENGINEER considers significant based on record documents furnished by Contractor to ENGINEER and which were annotated by Contractor to show changes made during construction. 34. Reimbursable Expenses- -The expenses incurred directly by ENGINEER in connection with the performing or furnishing of Basic and Additional Services for the Project for which OWNER shall pay ENGINEER as indicated in Exhibit C. 35. Resident Project Representative- -The authorized representative of ENGINEER, if any, assigned to assist ENGINEER at the Site during the Construction Phase. The Resident Project Representative will be ENGINEER's agent or employee and under ENGINEER's supervision. As used herein, the term Resident Project Representative includes any assistants of Resident Project Representative agreed to by OWNER. The duties and responsibilities of the Resident Project Representative are as set forth in Exhibit D. 36. Samples -- Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 37. Shop Drativings - -All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to ENGINEER to illustrate some portion of the Work. 38. Site - -Lands or areas indicated in the Contract Documents as being furnished by OWNER upon which the Work is to be performed, rights -of -way and easements for access thereto, and such other lands furnished by OWNER which are designated for use of Contractor. 39. Specifications— —*hat part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 40. Substantial Completion - -The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of ENGINEER, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 41. Supplementary Conditions- -That part of the Contract Documents which amends or supplements the General Conditions. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 10 of 12 • 42. (Modified) Total Project Costs - -The sum of the Construction Cost, allowances for contingencies, the total costs of services of ENGINEER or other design professionals and consultants, cost of land, rights -of -way, compensation for damages to properties, OWNER's costs for legal, accounting, insurance counseling or auditing services, interest and financing charges incurred in connection with the Project, and the cost of other services to be provided by others to OWNER pursuant to Exhibit B of this Agreement. 43. Work- -The entire completed construction or the various separately identifiable parts thereof required to be provided under the Contract Documents with respect to this Project. Work includes and is the result of performing or furnishing labor, services, and documentation necessary to produce such construction and furnishing, installing, and incorporating all materials and all equipment into such construction, all as required by the Contract Documents. 44. Work Change Directive - -A written directive to Contractor issued on or after the Effective Date of the Construction Agreement and signed by OWNER upon recommendation of the ENGINEER, ordering an addition, deletion, or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Times but is evidence that the parties expect that the change directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 45. Written Amendment --A written amendment of the Contract Documents signed by OWNER and Contractor on or after the Effective Date of the Construction Agreement and normally dealing with the non - engineering or non - technical rather than strictly construction - related aspects of the Contract Documents. ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS 8.01 Exhibits Included A. Exhibit A, "ENGINEER's Services," consisting of eight (8) pages. B. Exhibit B, "OWNER's Responsibilities," consisting of two (2) pages. C. Exhibit C, "Payments to Engineer for Services and Reimbursable Expenses," consisting of two (2) pages. D. Exhibit D, "Duties, Responsibilities and Limitations of Authority of Resident Project Representative, " is not used. E. Exhibit E, "Notice of Acceptability of Work," consisting of two (2) pages. F. Exhibit F, "Construction Cost Limit," is not used. G. Exhibit G, "Insurance," consisting of two (2) pages. H. Exhibit H, "Dispute Resolution," is not used. Exhibit I, "Allocation of Risks," is not used J. Exhibit J, "Special Provisions" is not used. K. (Added) Exhibit K, "Indemnification" consisting of two (2) pages. 8.02 Total Agreement A. This Agreement (consisting of pages 1 to 12 inclusive, together with the Exhibits identified above) constitutes the entire agreement between OWNER and ENGINEER and supersedes all prior written or oral understandings: This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument. This Agreement along with the exhibits shall be read and construed as the same Agreement. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 11 of 12 • • IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. OWNER: City of Baytown Gary Jackson Title: City Manager Date Signed: Address for giving notices: P.O. BOX 424 BAYTOWN, TEXAS 77422 -0424 Designated Representative (paragraph 6.02.A) W.R. (Bill) Pedersen, P.E. Title: City Engineer Phone Number: (281) 420 -6549 Facsimile Number: (281) 420 -6586 E -Mail Address: wrpedersen @baytown.org ENGINEER: Lockwood, Andrews and INzw ikwn, Inc. Printed N4T5Z J. AnthonV�Uoyd, -PE Title Senior Vice President Date Signed S` s` o 3 Address for giving notices: 2925 Briarpark Drive Houston, TX 77042 Designated Representative (paragraph 6.02.A): John M. Hewitt Title: Manager Water Resources Phone Number: 713- 266 -6900 Facsimile Number: 713 - 266 -8971 E -Mail Address: 'mhewitt lan- inc.com Standard Form of Agreement Between Owner and Engineer for Professional Services Page 12 of 12 This is EXHIBIT A, consisting of 8 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINES ENGINEER's Services Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties. ENGINEER shall provide Basic and Additional Services as set forth below. PART 1 -- BASIC SERVICES (Modified) A1.01 Preliminary Design Phase A. ENGINEER shall: Consult with OWNER to define and clarify OWNER's requirements for the Project and available data. 2. Advise OWNER as to the necessity of OWNER's providing data or services of the types described in Exhibit B which are not part of ENGINEER's Basic Services, and assist OWNER in obtaining such data and services. 3. (Modified) Identify, consult with, and analyze requirements of governmental authorities having jurisdiction to approve the portions of the Project designed or specified by ENGINEER, including but not limited to mitigating measures identified in the environmental assessment (if any). 4. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER, recommend to OWNER those solutions which in ENGINEER's judgment meet OWNER's requirements for the Project. 5. (Modified) Attend meetings with OWNER and OWNER'S designated boards and /or commissions to receive input into OWNER'S requirements for the Project and evaluation potential solutions available to OWNER. 6. (Modified) Prepare a preliminary engineering report (the "Report") which will, as appropriate, contain schematic layouts, sketches, schedule of events, and conceptual design criteria with appropriate exhibits to indicate the agreed -to requirements, considerations involved, and those alternate solutions available to OWNER which ENGINEER recommends. This Report will be accompanied by ENGINEER's opinion of Total Project Costs for each solution which is so recommended for the Project with each component separately itemized, including the following, which will be separately itemized: opinion of probable Construction Cost, allowances for contingencies and for the estimated total costs of design, professional, and related services provided by ENGINEER and, on the basis of information furnished by OWNER, allowances for other items and services included within the definition of Total Project Costs. 7. Furnish three (3) review copies of the Report to OWNER within ninety (90) days of authorization to begin services and review it with OWNER. 8. Revise the Report in response to OWNER's and other parties' comments, as appropriate, and furnish five (5) final copies of the revised Report to the OWNER within twenty (20) days after completion of reviewing it with OWNER. Page 1 of 8pages (Exhibit A — Engineer's Services) • B. (Modified) ENGINEER's services under the Preliminary Design Phase will be considered complete on the date when the final copies of the revised Report have been delivered to and accepted by OWNER. A 1.02 Final Design Phase A. After acceptance by OWNER of the Preliminary Design Phase documents and revised opinion of probable Construction Cost as determined in the Preliminary Design Phase, but subject to any OWNER- directed modifications or changes in the scope, extent, character, or design requirements of or for the Project, and upon written authorization from OWNER, ENGINEER shall: I. (Modified) On the basis of the above acceptance, direction, and authorization, prepare final Drawings indicating the scope, extent, and character of the Work to be performed and furnished by Contractor. Specifications will be prepared, where appropriate, in conformance with the 16- division format of the Construction Specifications Institute or other format agreed to in writing by OWNER and ENGINEER. 2. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications for permits from or approvals of governmental authorities having jurisdiction to review or approve the final design of the Project and assist OWNER in consultations with appropriate authorities. 3. Advise OWNER of any adjustments to the opinion of probable Construction Cost and any adjustments to Total Project Costs known to ENGINEER, itemized as provided in paragraph A 1.0I .A.5. 4. Perform or provide the following additional final Design Phase tasks or deliverables:. None 5. Prepare and furnish Bidding Documents for review and approval by OWNER, its legal counsel, and other advisors, as appropriate, and assist OWNER in the preparation of other related documents. 6. Submit 5 final copies of the Bidding Documents and a revised opinion of probable Construction Cost to OWNER within ninety (90) days after authorization to proceed with this phase. 7. (Added) Prepare additional line items in the Bid Tabulations, assuming the project documentation, including plans and specifications, were originally prepared to reflect these items, as reasonably requested by OWNER, so long as this/these request(s) is made prior to the preparation of the final bid documents. B. In the event that the Work designed or specified by ENGINEER is to be performed or furnished under more than one prime contract, or if ENGINEER's services are to be separately sequenced with the work of one or more prime Contractors (such as in the case of fast - tracking), OWNER and ENGINEER shall, prior to commencement of the Final Design Phase, develop a schedule for performance of ENGINEER's services during the Final Design, Bidding or Negotiating, Construction, and Post - Construction Phases in order to sequence and coordinate properly such services as are applicable to the work under such separate prime contracts. This schedule is to be prepared and included in or become an amendment to Exhibit A whether or not the work under such contracts is to proceed concurrently. C. The number of prime contracts for Work designed or specified by ENGINEER upon which the ENGINEER's compensation has been established under this Agreement is 1 (one). D. (Modified) ENGINEER's services under the Final Design Phase will be considered complete on the date when the submittals required by paragraph A1.03.A.6 have been delivered to and accepted by OWNER. A1.03 Bidding or Negotiating Phase A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable • Construction Cost as determined in the Final Design Phase, and upon written authorization by OWNER to proceed, ENGINEER shall: Page 2 of 8pages (Exhibit A — Engineer's Services) 1. Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work and, where applicable, provide 15 sets of plans and specifications, and maintain a record of prospective bidders to whom Bidding Documents have been issued. 2. Issue Addenda as appropriate to clarify, correct, or change the Bidding Documents. 3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and entities proposed by Contractor for those portions of the Work as to which such acceptability is required by the Bidding Documents. 4. Perform or provide the following additional Bidding or Negotiating Phase tasks or deliverables: None 5. (Modified) Attend the Mandatory Pre -Bid Conference and the Bid opening, prepare Bid tabulation sheets, assemble contract documents, assist OWNER in both evaluating Bids or proposals and awarding contracts for the Work. 6. (Added) Receive and process Contractor deposits or charges for the Bidding Documents. 7. (Added) Assist in connection with Bid protests, rebidding, or re- negotiating contracts for construction, materials, equipment, or services. B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase. A 1.04 Construction Phase A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from OWNER, ENGINEER shall: 1. General Administration of Construction Contract. Consult with OWNER and act as OWNER's representative as provided in the General Conditions. The extent and limitations of the duties, responsibilities and authority of ENGINEER as assigned in said General Conditions shall not be modified, except as ENGINEER may otherwise agree in writing. All of OWNER's instructions to Contractor will be issued through ENGINEER, who shall have authority to act on behalf of OWNER in dealings with Contractor to the extent provided in this Agreement and said General Conditions except as otherwise provided in writing. 2. (Modified) Selecting Independent Testing Laboratory. Assist OWNER in the selection of an independent testing laboratory to perform the services identified in paragraph B2.01.0, if any. 3. Pre - Construction Conference. Participate in a Pre - Construction Conference prior to commencement of Work at the Site. 4. Baselines and Benchmarks. As appropriate, establish baselines and benchmarks for locating the Work which in ENGINEER's judgment are necessary to enable Contractor to proceed. 5. Visits to Site and Observation of Construction. In connection with observations of Contractor's work in progress while it is in progress: a. (Modified) Make visits to the Site once per month during construction as appropriate to verify Contractor's payment requests, and additional visits as ENGINEER and/or OWNER deems necessary, in order to observe as an experienced and qualified design professional the progress and quality of the Work. Such visits and observations by ENGINEER, and the Resident Project Representative, if any, are not intended to be exhaustive or to extend to every aspect of Page 3 of 8pages (Exhibit A — Engineer's Services) Contractor's work in progress or to involve detailed inspections of Contractor's work in progress beyond the responsibilities specifically assigned to ENGINEER in this Agreement and the Contract Documents, but rather are to be limited to spot checking, selective sampling, and similar methods of general observation of the Work based on ENGINEER's exercise of professional judgment as assisted by the Resident Project Representative, if any. Based on information obtained during such visits and such observations, ENGINEER will determine if Contractor's work is proceeding in accordance with the Contract Documents, and ENGINEER shall keep OWNER informed of the progress of the Work. (Modified) The purpose of ENGINEER's visits to, and representation by the Resident Project Representative, if any, at the Site, will be to enable ENGINEER to better carry out the duties and responsibilities assigned to and undertaken by ENGINEER during the Construction Phase, and, in addition, by the exercise of ENGINEER's efforts as an experienced and qualified design professional, to provide for OWNER a greater degree of confidence that the completed Work will substantially conform to the Contract Documents and that the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents has been implemented and preserved by Contractor. ENGINEER shall not, during such visits or as a result of such observations of Contractor's work in progress, supervise, direct, or have control over Contractor's work, nor shall ENGINEER have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to Contractor's work, or for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. Accordingly, ENGINEER neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its work in accordance with the Contract Documents. 6. (Modified) Defective !York. Recommend to OWNER that Contractor's work be disapproved and rejected while it is in progress if, on the basis of such observations, ENGINEER believes that such work will not produce a completed Project that substantially conforms to the Contract Documents or that it will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. 7. Clarifications and Interpretations; Field Orders. Issue necessary clarifications and interpretations of the Contract Documents as appropriate to the orderly completion of Contractor's work. Such clarifications and interpretations will be consistent with the intent of and reasonably inferable from the Contract Documents. ENGINEER may issue Field Orders authorizing minor variations from the requirements of the Contract Documents. 8. Change Orders and Work Change Directives. Recommend Change Orders and Work Change Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as required. 9. Shop Drmvings and Samples. Review and approve or take other appropriate action in respect to Shop Drawings and Samples and other data which Contractor is required to submit, but only for conformance with the information given in the Contract Documents and compatibility with the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. Such reviews and approvals or other action will not extend to means, methods, techniques, sequences or procedures of construction or to safety precautions and programs incident thereto. ENGINEER has an obligation to meet any Contractor's submittal schedule that has earlier been acceptable to ENGINEER. 10. Substitutes and "or- equal. " Evaluate and determine the acceptability of substitute or "or- equal" materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.01 of this Exhibit A. Page 4 of 8pages (Exhibit A — Engineer's Services) • 1 I. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed reasonably necessary, and receive and review all certificates of inspections, tests, and approvals required by Laws and Regulations or the Contract Documents. ENGINEER's review of such certificates will be for the purpose of determining that the results certified indicate compliance with the Contract Documents and will not constitute an independent evaluation that the content or procedures of such inspections, tests, or approvals comply with the requirements of the Contract Documents. ENGINEER shall be entitled to rely on the results of such tests. • 12. (Modified) Disagreements between OWNER and Contractor. Render formal written decisions on all claims of OWNER and Contractor relating to the acceptability of Contractor's work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of Contractor's work. In rendering such decisions, ENGINEER shall be fair and not show partiality to OWNER or Contractor. 13. Applications for Payment. Based on ENGINEER's observations as an experienced and qualified design professional and on review of Applications for Payment and accompanying supporting documentation: a. Determine the amounts that ENGINEER recommends Contractor be paid. Such recommendations of payment will be in writing and will constitute ENGINEER's representation to OWNER, based on such observations and review, that to the best of ENGINEER's knowledge, information and belief, Contractor's work has progressed to the point indicated, the quality of such work is substantially in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests called for in the Contract Documents and to any other qualifications stated in the recommendation), and the conditions precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as it is ENGINEER's responsibility to observe Contractor's work. In the case, of unit price work, ENGINEER's recommendations of payment will include final determinations of quantities and classifications of Contractor's work (subject to any subsequent adjustments allowed by the Contract Documents). The responsibilities of ENGINEER contained in paragraph A 1.04.A.5.a are expressly subject to the limitations set forth in paragraph A1.04.A.5.b and other express or general limitations in this Agreement and elsewhere. b. By recommending any payment, ENGINEER shall not thereby be deemed to have represented that observations made by ENGINEER to check the quality or quantity of Contractor's work as it is performed and furnished have been exhaustive, extended to every aspect of Contractor's work in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to ENGINEER in this Agreement and the Contract Documents. Neither ENGINEER's review of Contractor's work for the purposes of recommending payments nor ENGINEER's recommendation of any payment including final payment will impose on ENGINEER responsibility to supervise, direct, or control Contractor's work in progress or for the means, methods, techniques, sequences, or procedures of construction or safety precautions or programs incident thereto, or Contractor's compliance with Laws and Regulations applicable to Contractor's furnishing and performing the Work. It will also not impose responsibility on ENGINEER to make any examination to ascertain how or for what purposes Contractor has used the moneys paid on account of the Contract Price, or to determine that title to any portion of the work in progress, materials, or equipment has passed to OWNER free and clear of any liens, claims, security interests, or encumbrances, or that there may not be other matters at issue between OWNER and Contractor that might affect the amount that should be paid. Page 5 of 8pages (Exhibit A — Engineer's Services) 14. Contractor's Completion Documents. a. (Modified) Receive and review maintenance and operating instructions, schedules, and guarantees as prepared by the Contractor in accordance with the Contract Documents. Engineer will compile this information as provided by Contractor, and deliver three (3) copies of the same to OWNER . b. (Modified) Receive bonds, certificates, or other evidence of insurance not previously submitted and required by the Contract Documents, certificates of inspection, tests and approvals, Shop Drawings, Samples and other data approved as provided under paragraph A1.04.A.9, and the annotated record documents which are to be assembled by Contractor in accordance with the Contract Documents to obtain final payment. The extent of such ENGINEER's review will be limited as provided in paragraph A1.04.A.9. c. ENGINEER shall transmit these documents to OWNER within thirty days of receipt of documents from Contractor. d. (Added) Preparing and furnishing to OWNER Record Drawings on mylar showing appropriate record information based on Project annotated record documents received from Contractor. 15. Substantial Completion. Promptly after notice from Contractor that Contractor considers the entire Work ready for its intended use, in company with OWNER and Contractor, conduct an inspection to determine if the Work is Substantially Complete. If after considering any objections of OWNER, ENGINEER considers the Work Substantially Complete, ENGINEER shall deliver a certificate of Substantial Completion to OWNER and Contractor. 16. Additional Tasks. Perform or provide the following additional Construction Phase tasks or deliverables: None 17. (Modified) Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the completed Work of Contractor is acceptable so that ENGINEER may recommend, in writing, final payment to Contractor. Accompanying the recommendation for final payment, ENGINEER shall also provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work ") that to the best of ENGINEER's knowledge, information and belief and upon the exercise of ENGINEER'S due diligence, the Work is acceptable and is in compliance with the Contract Documents. B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first Construction Agreement for the Project or any part thereof and will terminate upon final payment to Contractors. If the Project involves more than one prime contract as indicated in paragraph A1.02.C, Construction Phase services may be rendered at different times in respect to the separate contracts. C. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or omissions of any Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity performing or furnishing any of the Work. ENGINEER shall not be responsible for failure of any Contractor to perform or furnish the Work in accordance with the Contract Documents. A 1.05 Post - Construction Phase A. Upon written authorization from OWNER, ENGINEER, during the Post - Construction Phase, shall: 1. Provide assistance in connection with the testing and adjusting of Project equipment or systems. 2. Assist OWNER in training OWNER's staff to operate and maintain Project, equipment, and systems. • 3. Assist OWNER in developing procedures for control of the operation and maintenance of, and record keeping for Project equipment and systems. Page 6 of 8pages (Exhibit A — Engineer's Services) 4. Together with OWNER, visit the Project to observe any apparent defects in the Work, assist OWNER in consultations and discussions with Contractor concerning correction of any such defects, and make recommendations as to replacement or correction of Defective Work, if present. 5. Perform or provide the following additional Post - Construction Phase tasks or deliverables: ➢ Prepare a GIS map with GPS locations of the manholes and flow line elevations. 6. In company with OWNER or OWNER's representative, provide an inspection of the Project within one month before the end of the Correction Period to ascertain whether any portion of the Work is subject to correction. B. The Post - Construction Phase services may commence during the Construction Phase and, if not otherwise modified in this Exhibit A, will terminate at the end of the Correction Period. PART 2 -- ADDITIONAL SERVICES A2.0I Additional Services Requiring OWNER'S Authorization in Advance A. If authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional Services of the types listed below. These services will be paid for by OWNER as indicated in Article 4 of the Agreement. (Modified) Preparation of applications and supporting documents (in addition to those furnished under Basic Services) for private or govemmental grants, loans or advances in connection with the Project; preparation or review of environmental assessments and impact statements; review and evaluation of the effects on the design requirements for the Project of any such statements and documents prepared by others; assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project; and assistance in obtaining on behalf of the OWNER permits not otherwise included with the scope of Basic Services from all governmental authorities having jurisdiction to approve all phases of the PROJECT designed or specified by ENGINEER. 2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by OWNER. 3. (Modified) Services resulting from significant changes in the scope, extent, or character of the portions of the Project designed or specified by ENGINEER or its design requirements including, but not limited to, changes in size, OWNER's schedule, or character of construction; and revising previously accepted studies, reports, Drawings, Specifications, or Contract Documents when such revisions are required by changes in Laws and Regulations enacted subsequent to the Effective Date of this Agreement. 4. (Modified) Services resulting from OWNER's request to evaluate additional Phase alternative solutions beyond those identified in paragraph A1.01.A.4. 5. Services required as a result of OWNER's providing incomplete or incorrect Project information with respect to Exhibit B; provided, such information was to be relied upon by ENGINEER pursuant to Section 6.0 LEA of the Agreement. 6. Providing renderings or models for OWNER's use. 7. Undertaking investigations and studies including, but not limited to, detailed consideration of operations, maintenance, and overhead expenses; the preparation of feasibility studies, cash flow and economic evaluations, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating processes available for licensing, and assisting OWNER in obtaining process licensing; detailed quantity • surveys of materials, equipment, and labor; and audits or inventories required in connection with construction performed by OWNER. Page 7 of 8pages (Exhibit A — Engineer's Services) 0 8. Furnishing services of ENGINEER's Consultants for other than Basic Services. 9. Services attributable to more prime construction contracts than specified in paragraph AI.03.C. 10. Services during out -of -town travel required of ENGINEER other than for visits to the Site or OWNER's office. 11. Preparing for, coordinating with, participating in and responding to structured independent review processes, including, but not limited to, construction management, cost estimating, project peer review, value engineering, and constructibility review requested by OWNER; and performing or furnishing services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a result of such review processes. 12. Providing assistance in resolving any Hazardous Environmental Condition in compliance with current Laws and Regulations. 11 (Modified) Preparing to serve or serving as a consultant or witness for OWNER in any litigation, arbitration or other dispute resolution process related to the Project if ENGINEER is not a party to the same). 14. Providing more extensive services required to enable ENGINEER to issue notices or certifications requested by OWNER under paragraph 6.01.G of the Agreement. 15. Other services performed or furnished by ENGINEER not otherwise provided for in this Agreement. 16. Property descriptions. 17. (Modified) Property, easement, right -of -way, and other special surveys or data, including establishing relevant reference points. 18. (Added) Environmental assessments, audits, investigations and impact statements, and other relevant environmental or cultural studies as to the Project, the Site, and adjacent areas. 19. (Added) Additional services during construction made necessary by (1) emergencies or acts of God endangering the Work, (2) an occurrence of a Hazardous Environmental Condition, (3) Work damaged by fire or other cause during construction, or (4) acceleration of the progress schedule involving services beyond normal working hours. A2.02 Required Additional Services A. ENGINEER shall perform or furnish, without requesting or receiving specific advance authorization from OWNER, the Additional Services of the types listed below. ENGINEER shall advise OWNER in writing prior to starting any such Additional Services. 1. Surveying Services 2. (Deleted) 3. (Deleted) 4. (Deleted) 5. (Deleted) • 6. (Deleted) Page 8 of 8pages (Exhibit A — Engineer's Services) • This is EXHIBIT B, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENG INEE OWNER's Responsibilities Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties. B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall: A. Provide ENGINEER with all criteria and full information as to OWNER's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability, and any budgetary limitations; and furnish copies of all design and construction standards which OWNER will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard forms, conditions, and related documents for ENGINEER to include in the Bidding Documents, when applicable. B. Furnish to ENGINEER any other available information pertinent to the Project including reports and data relative to previous designs, or investigation at or adjacent to the Site. C. (Modified) Following ENGINEER's assessment of initially - available Project information and data and upon ENGINEER's written request, furnish or otherwise make available such additional available Project related information and data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services. 1. (Deleted). 2. (Deleted). 3. (Deleted). 4. (Deleted). 5. (Deleted). 6. (Deleted). D. (Deleted). E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the Agreement as the OWNER determines is necessary. F. (Modified) Arrange for access to and make all provisions for ENGINEER to enter upon public property as required for ENGINEER to perform services under the Agreement. G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other documents presented by ENGINEER (including obtaining advice of an attorney, insurance counselor, and other advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely decisions pertaining thereto. H. (Deleted). • 1. (Deleted). Page 1 of 2 pages (Exhibit B - OWNER'S Responsibilities) • J. Advise ENGINEER of the identity and scope of services of any independent consultants employed by OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project peer review, value engineering, and constructibility review. • K. Furnish to ENGINEER data as to OWNER's anticipated costs for services to be provided by others for OWNER so that ENGINEER may make the necessary calculations to develop and periodically adjust ENGINEER's opinion of Total Project Costs. L. (Modified) If OWNER designates a construction manager or an individual or entity other than, or in addition to, ENGINEER to represent OWNER at the Site, define and set forth the duties, responsibilities, and limitations of authority of such other party and the relation thereof to the duties, responsibilities, and authority of ENGINEER. M. Attend the pre -bid conference, bid opening, pre - construction conferences, construction progress and other job related meetings, and Substantial Completion and final payment inspections. N. Provide copies of daily observation reports prepared by OWNER's on -site representative to ENGINEER during construction phase. Page 2 of 2 pages (Exhibit B - OWNER's Responsibilities) • This is EXHIBIT C, consisting of 1 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Payments to ENGINEER for Services and Reimbursable Expenses Article 4 of the Agreement is amended and supplemented to include the following agreement of the parties: ARTICLE 4 -- PAYMENTS TO THE ENGINEER C4.01 For Basic Services Having A Determined Scope --Cost not to Exceed Method of Payment A. OWNER shall pay ENGINEER for Basic Services set forth in Exhibit A as follows: 1. (Modified) A cost not to exceed amount of $90,734, which does not include those Engineer's Consultant's charges as provided below in this Article 4, Subparagraph C4.05, to be distributed at the completion of each of the phase in the following amount: a. Preliminary Design Phase $9,728 b. Final Design Phase $60,432 c. Bidding and Negotiating Phase $3,908 d. Construction Phase $13,416 e. Post Construction Phase $3,250 3.2. (Modified) ENGINEER may with the consent of OWNER alter the distribution of compensation between individual phases noted herein to be consistent with services actually rendered, but shall not exceed the total cost not to exceed amount unless approved in writing by the OWNER. 3. The cost not to exceed includes compensation for ENGINEER's services and services of ENGINEER's Consultants (with the exception of those outlined in paragraph C4.05), if any. Appropriate amounts have been incorporated in the cost not to exceed to account for labor, overhead, profit, and Reimbursable Expenses. • 4. Deleted. Initial: OWNER ENGINEER 5. The portion of the amount billed for ENGINEER's services will be based upon total services actually completed during the billing period. C4.02 For Basic Services Having An Undetermined Scope — Direct Labor Costs Times a Factor Method of Payment A. (Not Used). C4.03 For Additional Services A. OWNER shall pay ENGINEER for Additional Services as follows: 1. General. For services of ENGINEER's employees engaged directly on the Project pursuant to paragraph A2.01 or A2.02 of Exhibit A of the Agreement, except for services as a consultant or witness under paragraph A2.01.A.13, an amount equal to ENGINEER's Direct Labor Costs based upon the rate schedule, which is attached as Appendix 1 of Exhibit C and incorporated herein for all intents and purposes, times a Factor of 1.1 plus Reimbursable Expenses and ENGINEER's Consultant's charges, if any. Additional Services shall not exceed $24,400 without the prior written consent of the Owner. 2. (Not Used). C4.04 For Reimbursable Expenses A. (Modified) When not included in compensation for Basic Services under paragraph C4.01, OWNER shall pay ENGINEER for Reimbursable Expenses as the rate set forth in Appendix 2 of this Exhibit C. Before the OWNER shall be liable for any reimbursable expenses, the ENGINEER must obtain prior written approval of the Page 1 of 2 pages (Exhibit C - Basic Services -- Cost not to exceed Method) • • OWNER of any expense that exceeds $1,000 for which the ENGINEER seeks reimbursement. Reimbursable Expenses shall not exceed $2,750 without the prior written consent of the Owner. B. (Modified) Reimbursable Expenses include the following categories: mileage, parking tolls, long distance, reproduction of Drawings, Specifications, Bidding Documents, and similar Project - related items in addition to those required under Exhibit A, and, if authorized in advance by OWNER. C. The amounts payable to ENGINEER for Reimbursable Expenses will be the Project - related internal expenses actually incurred or allocated by ENGINEER, plus all invoiced external Reimbursable Expenses allocable to the Project, the latter multiplied by a Factor of (1.1). D. Deleted. E. (Added) The OWNER must approve all travel expenses before the same are incurred. If such approval is not obtained, the OWNER shall not be liable for such travel expenses. C4.05 For ENGINEER's Consultant's Charges A. (Modified) Whenever compensation to ENGINEER herein is stated to include charges of ENGINEER's Consultants, those charges shall be the amounts billed by ENGINEER's Consultants to ENGINEER times a Factor of (1.1). The consultant charges shall not exceed the following amounts specified for each of the following services, unless approved in writing by the OWNER. The charges include the factor, and are as follows: (1) Surveying $ 22,178 (2) Geotechnical $ (3) Environmental $ C4.06 Direct Labor Costs A. Direct Labor Costs means salaries and wages paid to ENGINEER's employees but does not include payroll related costs or benefits. B. (Deleted). 4.07 Factors A. The Direct Labor Costs Factor includes the cost of customary and statutory benefits including, but not limited to, social security contributions, unemployment, excise and payroll taxes, workers' compensation, health and retirement benefits, bonuses, sick leave, vacation, and holiday pay applicable thereto; the cost of general and administrative overhead, which includes salaries and wages of principals and employees engaged in business operations not directly chargeable to projects, plus non- Project operating costs, including but not limited to, business taxes, legal, rent, utilities, office supplies, insurance, and other operating costs; plus operating margin or profit. B. External Reimbursable Expenses and ENGINEER's Consultant's Factors include ENGINEER's overhead and profit associated with ENGINEER's responsibility for the administration of such services and costs. C4.08 Other Provisions Concerning-Payment A. Progress Payments. The portion of the amounts billed for ENGINEER's services which are identified in paragraphs C4.01 and C4.03, will be based on the Direct Labor Costs for the cumulative hours charged to the Project during the billing period by all of ENGINEER's employees, times the Applicable Direct Labor Costs Factor, plus Reimbursable Expenses and ENGINEER's Consultant's charges, if any. Page 2 of 2 Pages (Exhibit C - Basic Services -- Cost not to exceed Method) • Appendix 1, Exhibit C Kings Bend Sewer Systems Rehabilitation Direct Labor Cost Rate Schedule Project Manager $ 140 Project Engineer $ 105 Staff Engineer $ 90 Tech/Designer $ 85 Administrative Assistant $ 48 Appendix 2, Exhibit C Kings Bend Sewer Systems Rehabilitation Summary of Reimbursable Expenses Mileage $ 965 Delivery/Postage $ 330 Reproduction - Reports $ 35 Reproduction - Design Effort (includes review sets of specs) $ 135 Reproduction - Review Specs $ 65 Reproduction - Review Plans $ 200 Reproduction - Final sets of Specs $ 65 Reproduction - Mylar Plan Sheets $ 370 Reproduction of Contract Documents & Specifications $ 120 Reproduction - Construction Drawings $ 375 Reproduction - Addendum Contract Documents $ 50 Reproduction - Addendum Construction Drawings $ 40 Subtotal - Non -Labor Costs (w/ 1.1 multiplier) $ 2,750 n M This is EXHIBIT E, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINES NOTICE OF ACCEPTABILITY OF WORK PROJECT: OWNER: OWNER's Construction Contract Identification: EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT: CONSTRUCTION CONTRACT DATE: ENGINEER: To: And To: OWNER CONTRACTOR The undersigned hereby gives notice to the above OWNER and CONTRACTOR that the completed Work furnished and performed by CONTRACTOR under the above Contract is acceptable, expressly subject to the provisions of the related Contract Documents and the terms and conditions set forth on the reverse side hereof. M Title: Dated: E Page 1 of 2 Pages (Exhibit E —Notice of Acceptability of Work) 0 (Reverse side of Notice) • CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK The Notice of Acceptability of Work ( "Notice ") on the front side of this sheet is expressly made subject to the following terms and conditions to which all persons who receive said Notice and rely thereon agree: 1. Said Notice is given with the skill and care ordinarily used by members of the engineering profession practicing under similar conditions at the same time and in the same locality. 2. Said Notice reflects and is an expression of the professional judgment of ENGINEER. 3. Said Notice is given as to the best of ENGNEER's knowledge, information, and belief as of the date hereof. 4. (Modified) Said Notice is based entirely on and expressly limited by the scope of services ENGINEER has been employed by OWNER to perform or furnish during construction of the Project (including observation of the CONTRACTOR'S work) under ENGINEER's Agreement with OWNER and applies to facts that are within ENGINEER's knowledge or could or should have been ascertained by ENGINEER as a result of carrying out the responsibilities specifically assigned to ENGINEER under ENGINEER's agreement with OWNER. 5. (Modified) Said Notice is not a guarantee or warranty of CONTRACTOR's performance under the Construction Contract nor an assumption of responsibility for any failure of the Contractor to furnish and perform the work thereunder in accordance with the Contract documents, unless ENGINEER knew or should have known of such failure and failed to notify the Owner of such failure and take appropriate action so that the same were corrected and brought into compliance with the Contract Documents. Page 2 of 2 Pages (Exhibit E — Notice of Acceptability of Work) • This is EXHIBIT G, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER Insurance Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties. G6.05 Insurance Throughout the term of this Agreement, the ENGINEER at its own expense shall purchase, maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from the ENGINEER's operations and/or performance of the work under this Agreement, whether such operations and/or performance be by the ENGINEER, its agents, representatives, volunteers, employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The ENGINEER's insurance coverage shall be primary insurance with respect to the OWNER, its officers, agents and employees. Any insurance or self - insurance maintained by the OWNER, its officials, agents and employees shall be considered in excess of the ENGINEER's insurance and shall not contribute to it. Further, the ENGINEER shall include all subcontractors as additional insureds under its commercial general liability policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this contract: Commercial General Liability (CGL) General Aggregate: $1,000,000 Products & Completed Operations: $1,000,000 Personal & Advertising Injury: $1,000,000 Per Occurrence: $500,000 a. Coverage shall be at least as broad as ISO CG 00 01 10 93 b. No coverage shall be excluded from standard policy without notification of individual exclusions being attached for review and acceptance. Business Automobile Policy (BAP) Combined Single Limits: $1,000,000 a. Coverage for "Any Auto." Workers' Compensation Insurance Statutory Limits Employer's Liability $500,000 Waiver of Subrogation required Errors & Omissions (E &O) Limit: $500,000 a. For all engineers, and/or design companies. b. Claims -made form is acceptable. Page 1 of 2 Pages (Exhibit G - Insurance) • C. Coverage will be in force for three (3) years after project is completed. Upon execution of this contract, ENGINEER shall file with the OWNER valid Certificates of Insurance and endorsements acceptable to the OWNER. Such Certificates shall contain a provision that coverage afforded under the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice has been given to the OWNER via certified mail, return receipt requested. The ENGINEER shall also file with the OWNER valid Certificates of Insurance covering all subcontractors. The following are general requirements applicable to all policies: a. AM Best Rating of A:VII or better. b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted. c. Liability policies will be on occurrence form. E & O can be on claims -made form. d. City of Baytown, its officials and employees are to be added as Additional Insured to the commercial general liabilityand business automobile policies. e. Upon request of and without cost to City of Baytown, certified copies of all insurance policies and/or certificates of insurance shall be furnished to City of Baytown's representative. Certificates of insurance showing evidence of insurance coverage shall be provided to City of Baytown's representative prior to execution of this agreement. f. Upon request of and without cost to City of Baytown, loss runs (claims listing) of any and/or all insurance coverage shall be furnished to City of Baytown's representative. Page 2 of 2 Pages (Exhibit G - Insurance) • • This is EXHIBIT K, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND OWNER, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREAFTER, WHETHER SINGULAR OR PLURAL, COLLECTIVELY REFERRED TO AS "OWNER ") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY. TO -OR DEATH OF ENGINEER OR ENGINEER'S EMPLOYEES (HEREINAFTER, WHETHER SINGULAR OR PLURAL, COLLECTIVELY REFERRED TO AS "ENGINEER "). IN THE EVENT OF PERSONAL INJURY TO OR DEATH OF ENGINEER, SUCH INDEMNITY SHALL APPLY (I) TO THE FULLEST EXTENT ALLOWED BY LAW AND (II) TO THE EXTENT ALLOWED REGARDLESS OF WHETHER THE CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS OR LIABILITY ARISE (I) IN WHOLE OR IN PART FROM THE NEGLIGENCE OF OWNER OR (II) IN WHOLE OR IN PART FROM THE NEGLIGENCE OF ENGINEER. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH ENGINEER AND OWNER, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY ENGINEER TO INDEMNIFY AND PROTECT OWNER FROM THE CONSEQUENCES OF (I) OWNER'S OWN NEGLIGENCE TO THE EXTENT ALLOWED BY LAW, WHERE THAT NEGLIGENCE IS A SOLE OR CONCURRING CAUSE OF THE RESULTING INJURY OR DEATH OF ENGINEER AND /OR (II) ENGINEER'S JOINT AND /OR SOLE NEGLIGENCE. SUCH INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS OTHER THAN ENGINEER THAT IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE Page 1 of 2 Pages (Exhibit K - Indemnification) • • OF OWNER. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE OWNER BY REASON OF ANY OF THE ABOVE, THE ENGINEER FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE OWNER AND THE ENGINEER. The indemnity provided hereinabove shall survive the termination and/or expiration of this Agreement. ENGINEER assumes full responsibility for its work performed hereunder and hereby releases, relinquishes and discharges OWNER, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character for any injury to or death of any person and /or any loss of or damage to any property that is caused by or alleged to be caused by, arising out of, or in connection with ENGINEER's work to be performed hereunder. This release shall apply with respect to ENGINEER's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. The protections afforded to OWNER in this Exhibit K shall control and supersede any apportionment of liability or release of liability contained elsewhere in the Contract Documents. Page 2 of 2 Pages (Exhibit K - Indemnification) • ORDINANCE NO. 9558 AN ORDINANCE AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN INTERLOCAL AGREEMENT WITH THE BARBERS HILL INDEPENDENT SCHOOL DISTRICT, GOOSE CREEK CONSOLIDATED INDEPENDENT SCHOOL DISTRICT AND THE CITY OF SEABROOK FOR A COOPERATIVE AUCTION; 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 approves an Interlocal Agreement with the Barbers Hill Independent School District, Goose Creek Consolidated Independent School District and the City of Seabrook for a cooperative auction and authorizes the City Manager and the City Clerk of the City of Baytown to execute and attest to said agreement. A copy of the agreement is attached hereto, marked Exhibit "A," and made a part hereof 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 24`h day of April, 2003. ATTEST: (3 Ay V. S�;mITH, City Clerk APPROVED AS TO FORM: e2 ACID RAMIREZ, SR. ty Attorney FAKarenTiles \City Council\ OrdinancesMnterlocalAgreement4Auction2003 .doc 4 C. C� PETE C. ALFARO, Mayor THE STATE OF TEXAS § § AGREEMENT • COUNTY OF HARRIS § THIS AGREEMENT made this 14th day of April , 2003 between the CITY OF BAYTOWN, TEXAS, the CITY OF MT. BELVIEU, TEXAS, BARBERS HILL INDEPENDENT SCHOOL DISTRICT, GOOSE CREEK CONSOLIDATED INDEPENDENT SCHOOL DISTRICT and the CITY OF SEABROOK. WITNESSETH Pursuant to the authority granted by the Texas Interlocal Cooperation Act (Tex. Gov't Code Ann. §§ 791.001, et seq.) providing for the cooperation between local governmental bodies, the parties hereto, in consideration of the premises and mutual promises contained herein agree to as follows: I. The Goose Creek Consolidated Independent School District shall be the true and lawful. "host" and "initiator" for a cooperative auction to be held on May 3, 2003. I� The Goose Creek Consolidated Independent School District agrees that all specifications for said items shall be as determined by the City of Baytown, City of Mt. Belvieu, Goose Creek Consolidated Independent School District, Barbers Hill Independent School District and the City of Seabrook. 11 The Goose Creek Consolidated Independent School District, by execution of this • agreement, agrees to directly pay each governmental body its share of proceeds after completion of the auction. Page 1 of EXEiF A • NAF This agreement shall take effect upon execution by the signatories and shall serve as each governmental body's commitment to hold a cooperative auction on May 3, 2003. V. All parties agree that should any provision of the Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. C%" The officers executing this Agreement on behalf of the parties hereby confirm that such officers have full authority to execute this Agreement and to bind the party he /she represents. M This agreement shall be in effect from the date of execution until June 30, 2003. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their authorized officers the day and year first above written. rg...AZP4�,. r�a Gary 'Jackson Printed Name ATTEST: CITY OF BAYTOWN Sig ture W. Smith Printed Name jtV Manager __ City Clerk • Title Title Page 2 of 4 • Signature Printed Name Title Signature Printed Name Title Signature Printed Name • Title Page 3 of 4 ATTEST: CITY OF MT. BELVIEU Signature Printed Name Title ATTEST: BARBERS HILL ISD Signature Printed Name Title ATTEST: CITY OF SEABROOK Signature Printed Name Title • ATTEST: GOOSE CREEK CISD Printed Name Title Page 4 of 4 Si ature AIL-�721 f Printed Name Title ORDINANCE NO. 9557 • AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, DISCONTINUING, ABANDONING FOR PUBLIC USE AND CLOSING THE UTILITY EASEMENT BETWEEN LOTS 22 AND 23 IN BLOCK 1 OF THE REPLAT OF DECKER TERRACE, A SUBDIVISION IN HARRIS COUNTY; ABANDONING AND QUITCLAIMING ALL INTEREST OF THE CITY OF BAYTOWN AND THE PUBLIC IN AND TO SAID UTILITY EASEMENT; AUTHORIZING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST AND DELIVER CONVEYANCE TO RICHLAND BUILDERS, INC.; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, the utility easement located between Lots 22 and 23 in Block 1 of the Replat of Decker Terrace, a subdivision in Harris County, Texas, is not now used by the public; and WHEREAS, no interest of the public requires that said utility easement be improved or kept open; and WHEREAS, a new home has been constructed on Lot 23 and the East % of Lot 22 over the easement; and WHEREAS, Richland Builders, Inc., has made application that the utility easement be discontinued, abandoned and closed; and WHEREAS, it appears to be to the best interest of the City of Baytown, Texas, that the above - described utility easement be discontinued, abandoned and closed, and it further appears that the interest of the public in general will not be prejudiced or impaired thereby; NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the utility easement located between Lots 22 and 23 in Block 1 of the Replat of Decker Terrace, a subdivision in Harris County, Texas, be and the same is hereby discontinued and abandoned for public use, and the City of Baytown does for itself and for the public abandon and quitclaim all interest in and to the above - described median, and does hereby approve the application of Richland Builders, Inc. Section 2: That the Mayor of the City of Baytown is hereby authorized and directed to execute and the City Clerk to attest and deliver an appropriate conveyance of said utility easement to Richland Builders, Inc., upon receipt of compensation in the amount of TWO HUNDRED THIRTY - EIGHT AND 91/100 DOLLARS ($238.91). Section 3: This ordinance shall take effect immediately from and after its passage bythe 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 24`h day of April, 2003. /j,; eg- C - g V! � P TE C. ALFARO, Mayor ATTEST: GAY tV. SF/1ITH, City Clerk APPROVED AS TO FORM: ACIO RAMIREZ, SR. ity Attorney iFAKaren \Files \City Council\ Ordinances\ Abandoning EasementDcckerTerrace.doc 2 ORDINANCE NO. 9556 • AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, ADOPTING NEW FEES FOR THE RENTAL OF PARK PAVILIONS, THE RENTAL OF TENT EQUIPMENT, THE RENTAL OF HOLIDAY COSTUMES; AND BALL FIELD MAINTENANCE SERVICES FOR NON -CITY SPONSORED EVENTS; REPEALING CONFLICTING ORDINANCES; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, the Parks and Recreation Advisory Board has approved and recommends to the City Council changes in the following fees for the reasons stated: 9 the rental of indoor and outdoor park pavilions due to the increased costs associated with providing the facilities and related amenities; 9 the rental of tent equipment due to the expenses incurred by the City associated with the set- up /take down services; ➢ the rental of holiday costumes due to the wear and tear on the costumes; and ➢ ball field maintenance services for non -City sponsored events which are performed by the City; and WHEREAS, such fee increases are designed to compensate the City, in part, for the actual expenses incurred in providing the facilities, equipment, costumes and services; and WHEREAS, the City Council has reviewed such fees and finds that such fees are fair and reasonable and compensate the City, in part, for the facilities, equipment, costumes and services provided; NOW THEREFORE, 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 adopts the fees for the rental of park pavilions, the rental of tent equipment and costumes, and ball field maintenance services for non -city sponsored events detailed in Exhibit "A," which is attached hereto and made a part hereof for all intents and purposes. Section 2: All ordinances or parts of ordinances inconsistent with the terms of this ordinance are hereby repealed; provided, however, that such repeal shall be only to the extent of such inconsistency and in all other respects this ordinance shall be cumulative of other ordinances regulating and governing the subject matter covered by this ordinance. Section 3: 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 24Th day of April, 2003. PETE C. ALFARO, Mayor GAAY W. SMITH, City Clerk APPROVED AS TO FORM: ACIO RAMIREZ, SR., CW Attorney FAKarcn\Files\City Cowreil\ Ordinances \ParkFecsEsiablished.doc • W W U. z 0 f a ♦W V W Z _0 J_ a Q • EXHIBIT A rA cu L U C Cu N a) L C) C co L .0 C cu m C_ C 0 C 0 FU C a) U aT. 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O — is r o o Z ai o U Sri c ci o U Lo N _•!• cn CL W a� as c L U} m m m m o Q to cn m Cn U N in m O m o a L a, am O F— ._.LL B a, F— �.LZ (© M m Z �M O � O O = O CL cr O r.L N -Ei C LLI p F= cv E-L Q U n0O Yn FN - EUBI H r1 �J U Z z I W U z 0 LLI M J a> E co c •L E co O U E O a) U Q- L -0 U N (U O O `2 O .r- =1 Q O N L U � LO O Cn � • L cz cv cn 3 �— -O cu a) ca a a CF) L CD L O O cn C L - O O O O7 (D cu a) C L LL O U CD CD CU -0 - U _ U C r CD a N faE a W °' 13r-' 3 b ca cu l co z c c co Z V a ce 6H 69 Z m 06 C/) a Y N �LL Z 0 CL C N ORDINANCE NO, 9555 40 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE PAYMENT OF NINE HUNDRED SIXTY -NINE THOUSAND FIFTY -SEVEN AND NO 1100 DOLLARS ($969,057.00) TO HOUSTON - GALVESTON AREA COUNCIL FOR THE PURCHASE OF ONE (1) FIRE APPARATUS PUMPER AND ONE (1) FIRE APPARATUS AERIAL QUINT; MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, the City Counci 1 of the City of Baytown has approved an Interlocal Agreement which authorizes the Houston - Galveston Area Council to take bids for certain items on behalf of the City of Baytown; and WHEREAS, pursuant to such agreement, the Houston - Galveston Area Council has taken bids on one (1) fire apparatus pumper and one (1) fire apparatus aerial quint; NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown hereby authorizes subject to the condition precedent specified in Section 2 hereof, the payment of NINE HUNDRED SIXTY -NrNE THOUSAND FIFTY -SEVEN AND NO /100 DOLLARS ($969,057.00) to the Houston- Galveston Area Council for the purchase of one (1) fire apparatus pumper and one (1) fire apparatus aerial quint. Section 2: That the funds authorized in Section 1 hereof shall not be expended or otherwise appropriated unless and until the City of Baytown receives a performance bond in the amount of one hundred percent (100 %) of the purchase price, without any prepayment or other discount, of one (1) fire apparatus pumper and one (1) fire apparatus aerial quint. Such bond must be approved by the city attorney and warrant delivery of one (1) fire apparatus pumper and one (1) fire apparatus aerial quint on or before September 1, 2003. Section 3: That pursuant to the provisions of Texas Local Government Code Annotated § 252.048, the City Manager is hereby granted general authority to approve any change order involving a decrease or an increase in costs of TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or less, provided that the original contract price may not be increased by more than twenty -five percent (25 %) or decreased by more than twenty -five percent (25 %) without the consent of the contractor to such decrease. Section 4: 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 24th day of April, 2003. ATTEST: _ ""/� GAY W. SPviITH, City Clerk APPROVED AS TO FORM: efGI�ACIO RAMIREZ, SR., ity Attorney ,l n r. 4�6e� . PETE C. ALFARO, Mayor 0 F %Karen \Files\City Council\ Ordinances\ FireApparatusPumper &AerialQuint.doc 2 Published in the Baytown Sun on Thursday, May 1, 2003 ORDINANCE NO. 9554 • AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, PROVIDING FOR THE EXTENSION OF CERTAIN BOUNDARY LIMITS OF THE CITY OF BAYTOWN, TEXAS, AND THE ANNEXATION OF A 13.15 ACRE TRACT OF LAND LOCATED WEST OF AND ADJACENT TO NORTH MAIN STREET AND NORTH OF THE REPUBLIC OF TEXAS PLAZA, IN THE H.F. GILLETTE SURVEY, BAYTOWN, HARRIS COUNTY, TEXAS; WHICH SAID TERRITORIES LIE ADJACENT TO AND ADJOIN THE PRESENT BOUNDARY LIMITS FOR THE CITY OF BAYTOWN, TEXAS. WHEREAS, there being no request for an "on- site" hearing, two public hearings before the City Council of the City of Baytown, Texas, where all interested persons were provided with an opportunity to be heard on the proposed annexation of the property described in Section 1 of this ordinance, were held, during the City Council meeting on the 271h day of March, 2003, at 6:30 p.m., in the City Council Chamber of the City Hall of the City of Baytown, Texas, which date is not more than forty (40) nor less than twenty (20) days prior to the institution of annexation proceedings; and WHEREAS, notices of such public hearings were published in a newspaper having general circulation in the City of Baytown, Texas, and in the below described territories on the 12`h day of March, 2003, which date is not more than twenty (20) nor less than ten (10) days prior to the date of such public hearings; and WHEREAS, the total corporate area of the City of Baytown, Texas, on the 1 st day of January, 2003, was 32.43 square miles; and WHEREAS, the population of the City of Baytown, Texas, is approximately 66,430 inhabitants; and WHEREAS, the below described territories lie within the extraterritorial jurisdiction of the City of Baytown, Texas; and WHEREAS, the below described territories lie adjacent to and adjoin the City of Baytown, Texas; NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL. OF THE CITY OF BAYTOWN, TEXAS: Section l: That the following described land and territories lying adjacent to and adjoining the City of Baytown are hereby added and annexed to the City of Baytown, Texas, and shall hereinafter be included within the boundary limits of the City of Baytown, Texas, and present boundary limits of such City, at the various points contiguous to the areas hereinafter described, are altered and amended so as to include said areas within the corporate limits of the City of Baytown, Texas, to -wit: SEE EXHIBIT "A" Section 2: The above described territories and the areas so annexed shall be apart of the City of Baytown, Texas, and the property so added hereby shall bear its pro rata of the taxes levied by the City of Baytown, Texas, and the inhabitants thereof shall be entitled to all of the rights and privileges of all the citizens of the City of Baytown and shall be bound by the acts, ordinances, resolutions, and regulations of the City of Baytown, Texas. Section 3: In accordance with Texas Local Government Code Annotated § 43.056, as amended, the service plan prepared by the City for providing municipal services to the annexed areas is attached as Exhibit "B" and is hereby approved. Section 4: This ordinance shall be published and passed in the manner provided in Article 1, Section 9, of the Charter of the City of Baytown, Texas. INTRODUCED, READ and PASSED on the FIRST READING this the 24`h day of April, 2003, � PETE C. ALFARO, ayor ATTEST: G �' SM TH, City Clerk APPROVED AS TO FORM: NACIO RAMIREZ, S ity Attorney INTROD CE D, READ and PASSED on the SECOND AND FINAL READING this the P" day of , 2003. PETE C. ALFAR , Mayor ATTEST: - ,:4,y Si�ITH, City Clerk APP OVED AS TO FORM: ACID RAIVIIREZ, SR. (aty Attorney F:Veanenc \My Documents\ Council\ 02 -03\ April\ Anncxation Reading l3AcresBCA.doc 0 BAYTOWN CHRISTIAN ACADEMY, INC. Legal Description Being 26.670 acres out of a called 42.680 acre tract conveyed unto Otto Gerbes and wife Clara W. Gerbes by B. A. Stewart and Eula Stewart as evidenced by deed recorded in Volume 2304 Page 194 of the deed records of Harris County, Texas. Said Tract being in the H. F Gillette Survey and being further described by metes and bounds as follows: Beginning at the northwest corner of said 42.680 acre tract said corner being located called S 9° 30' 00" E 1,173.0 feet and N 80° 53' 00" 32.0 feet from the northwest corner of the H. F. Gillette Survey. Said beginning point being located in the east line of Lot 18, Block 6 of East End Addition, Highlands Farms, an addition as recorded in Volume 15, Page 60 of the Map Records of Harris County, Texas, and being the northwest corner of the herein described tract. Thence N 80° 53' 00" E along the north line of said 42.680 acre tract, and the north line of the herein described tract; at 191.17 feet pass the southeast corner of a called 3.0 acre tract conveyed to David W. Tigert and Belinda Gay Tigert by deed recorded under County Clerks File Number P466727 and a 5/8 inch iron rod with cap found bearing S 80 053' 00" W 2.47 feet; at 397.24 feet past the southeast corner of a called 5.39 acre tract conveyed unto Garry A. and Kathy L. Nelson by deed recorded in County Clerks File Number N541884; at 580.44 feet past the southeast corner a called 5.39 acre tract conveyed unto Linda Lorraine Putman by deed recorded under County Clerk's File Number P904233 and a old 3/8 inch iron rod found bearing S 10° 18' 46" E 2.60 feet; at 763.64 feet past the southeast corner of a 4.793 acre tract of land conveyed unto Edward R. and Beth Ann Birdwell by deed recorded under County Clerks File Number N553940; at 954.81 feet pass the southeast corner of a 5.0 acre tract of land conveyed unto E. P. Anders, Jr. and Dorothy N. Anders by deed recorded in Volume 4873, Page 279 of the Harris County Deed Records and a 3/8 inch iron rod found bearing S 28° 52' 44" E 0.67 feet; at 1,145.98 feet pass the southeast corner of a 5.0 acre tract conveyed unto Steven K Ackerman by deed recorded under County Clerks File Number U059497 and a old 3/8" iron rod found bearing N 80° 53' 00" E 0.25 feet; a total distance in all of 1,425.38 feet to the west right of way line of North Main Street (right of way is equal to 100 feet) and the northeast corner of the herein described tract and the southeast corner of a called 7.3962 acre tract conveyed unto First Christian Church, Baytown Texas by deed recorded under County Clerks File Number L907493. Thence S 00° 51' 08" W severing the said 42.68 acre tract, and along the west right of way line of North Main Street as described in right of way deed recorded under County Clerks File Number H609108, of the Official Records of Real Property of Harris County, Texas 875.90 feet to the southeast corner of the herein described tract and a set 5/8 inch iron rod with plastic cap stamped "G. W. Hans 1748 ". Said corner being located in the north line of a 45 -foot right of way conveyed unto Harris County by Otto Gerbes and Clara W. Gerbes, as evidenced by deed recorded under County Clerks File Number is H609107 of the Official Records of Real Property of Harris County, Texas. EXHIBIT A Thence S 80° 30' 00" W parallel to and 90 feet north of the south line of the said 42.680 acre tract and with the north line of said 45 -foot right of way 1,267.98 feet to the southwest corner of the herein described tract and a set 5/8 inch iron rod with plastic cap stamped "G. W. Hans 1748" located in the west line of the said 42.680 acre tract and in the east line of Lot 7 Block 21 of Highland Farms Subdivision. Thence N 9° 30' 00" W along the east line of Blocks 6 and 9 of said East End Addition, and the west line of said 42.680 acre tract 862.70 feet to the northeast corner of the herein described tract, a found %Z" iron rod with cap stamped "F.G. Huffman 1682" bearing N 9° 28' 44" W 1.04 feet, and the place of beginning containing in all 1,161.754 square feet or 26.670 acres more or less. Save and except the following described tract: DESCRIPTION OF 13.52 acres, more or less, situated in the H. F. Gillette Survey, Abstract 297, Harris County, Texas and being out of and a part of that certain called 26.670 a cre t ract o f 1 and c onveyed b y Otto Gerbes Estate, et al, to Baytown Christian Academy, Inc. by Deed dated December 20, 2000 and recorded in County Clerk's File No. U792623 of the Official Public Records of Real Property of Harris County, Texas. This 13.52 acre tract is more particularly described by the following metes and bounds, to -wit: NOTE: BEARINGS ARE BASED ON DEED BEARINGS ON THE WEST AND NORTH LINES OF SAID CALLED 26.67 ACRES. BEGINNING at a point for the Southwest corner of said called 26.67 acres in the East line of Lot 7 of Block 21 of East End Addition, Highland Farms Subdivision as recorded in Volume 15, Page 60 of the Map Records of Hams County, Texas. Said point being in the North line of a 45 feet wide right -of -way conveyed by Otto Gerbes, et ux, to Harris County by Deed recorded in County Clerk's File No. H609107 of the Official Public Records of Real Property of Harris County, Texas and being the Southwest corner and POINT OF BEGINNING of this tract. Thence N 9° 30' 00" W along the West line of this tract, the West line of said called 26.67 acres and the East line of Blocks 21 and 9 of said East End Addition, Highlands Farms Subdivision, for a distance of 450 feet, more or less, to a point in the Corporate Limits of the City of Baytown for the Northwest corner of this tract. Thence N 80° 53' 00" E along the North line of this tract and along the Corporate Limits of the City of Baytown, over and across said called 26.76 acres, for a distance of 1350.08 feet to a point in the East line of said called 26.76 acres and the West right -of -way line of North Main Street (100 feet wide right -of -way) as described in right -of -way Deed in County Clerk's File No. H609108 of the Official Public Records of Real Property of Hams County, Texas. Thence S 00° 51' 08" W along the East line of this tract, the East line of said called 26.76 acres, the Corporate Limits of City of Baytown and the west right of way line of said North Main Street for a distance of 456.89 feet, more or less, to a point for the Southeast corner of this tract, the Southeast corner of said called 26.76 acres and being in the North right -of -way line of said 45 feet wide tract conveyed to Harris County. Thence S 80° 30' 00" W along the South line of this tract, the South line of said called 26.76 acres and the North line of said Harris County tract for a distance of 1267.98 feet to the PLACE OF BEGINNING and containing within these boundaries 13.52 acres of land, acres more or less. C � I l _ , O , o Ln ' 1 , , 1 " NMW HI LION . +.................... W 11 _ 1 " 11 o, 1} Z Q '` x cc I I 1 M •1 1 1 } I ' } 1 1 1 , 1 1 } 1 1 — 1 Wl 0,8 3543 _ _ - ` - - I 1 ,` • +..�_,a�•a a , _n_' 0 1 �Oa 153M I '1 O N CV N cn 0 v co 0 cn 0 c m v } W a U Q Z a H CO d' U Z O m • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SERVICE PLAN for Approximately 13.52 acres .... ............................... .... ............................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . March 20, 2003 �,; ii ® March 17, 2003 SUMMARY The area to be annexed is located in the ETJ, west of and adjacent to North Main Street and north of the Republic of Texas Plaza, being in the H. F. Gillette Survey in Harris County, Texas. Size of Area: The area proposed for annexation is approximately 13.52 acres shown on the attached map. Proposed Land Use: Baytown Christian Academy. Upon annexation, the property will be in the Mixed Use (MU) zoning district. Impact: As a result of this proposed annexation, no additional city facilities, vehicles, or personnel will be required. For fire protection purposes, the project site will be assigned to Fire Station 1 and Police District 3. Means of Accomplishment: The annexation will be accomplished from the existing city limit line. Public Input: Public Hearings will be held to allow for public input. Attachments: Attached to this summary are the specific Service Plan elements submitted by each of the major city departments. • SERVICE. PLAN FOR THE FIRE DEPARTMENT RE: Proposed annexation of M% acres (Baytown Christian Academy). 13.s 1. The area being annexed is described as a2 -Scre tract of land west of and adjacent to North Main Sbyd and north of the Republic of Texas Plaza. i GUM SuM in Harris County. Texas. 2. The area will be assigned to the following service area: The newly annexed area will receive the same services as other developments in the area. 3. The annexation of this area will l n require the construction of additional buildings for this Department. Please list any new b�uiingrequirernents and attach hereto as Exhibit "A ". 4. The annexation will Villn requ ire the purchase of additional vehicles. Any purchases required will be made within d one -half years of the date of annexation. Please list any specific vehicle requirements and attach hereto as Exhibit "B ". S. The annexation will aapp require additional personnel. The Department will hire any required personnel as qual' ants beco me available. Please list any specific personnel required and attach hereto as Exhibit "C'. 6. If this annexation requires the construction /expansion of any other service facility an explanation should be attached hereto as Exhibit "D ". 7. " The effective date of implementation of this service plan r will be ..i 46 SERVICE PLAN FOR THE INSPECTIONS DEPARTMENT 13•s.Z RE: Proposed annexation ofl6;52 acres (Baytown Christian Academy). 1. The area being annexed is described as a y. tz"Jand west of and .d .�'1 1• +l�l Main Street and north +! the Republic of Texas Plaza, being in the l ei14" S ► a 1 ■ t 11� County, 2. The area will be assigned to the following service area: The newly annexed area will receive the same services as other developments in the area. 3. The annexation of this area will ill ulre the construction of additional buildings for this Department. Please list any new ui and attach hereto as Exhibit "A ". 4. The annexation willAAnot require the purchase of additional vehicles. Any purchases required will be made within two and one -half years of the date of annexation. Please list any specific vehicle requirements and attach hereto as Exhibit "B ". 5. The annexation wil will n require additional personnel. The Department will hire any required personnel as qual• applicants become available. Please list any specific personnel required and attach hereto as Exhibit "C'. 6. If this annexation requires the construction /expansion of any other service facility an explanation should be attached hereto as Exhibit "D ". 7. The effective date of implementation of this service plan will be Upon-Annexation . • ® SERVICE PLAN FOR THE PUBLIC WORKS DEPARTMENT 135 _Z__ RE: Proposed annexation of 4fizU acres (Baytown Christian Academy). 1,25 S;? 1. The area being annexed is described as a west of and adiacent to North Main Street and north of the Rel2ublic of Texas Plaza. being io the H. F, Gillette County. Texas. 2. The area will be assigned to the following service area: XIM The newly annexed area will receive the same services as other developments i the area. 3. The annexation -of this area wil i�ingrequirements uire the construction of additional buildings for this Department. Please list any new bil and attach hereto as Exhibit "A". 4. The annexation wil will nn uire the purchase of additional vehicles. Any purchases required will be made within t—wo and one -half years of the date of annexation. Please list any specific fic vehicle requirements and attach hereto as Exhibit "B ". 5. The annexation wil will n uire additional personnel. The Department will hire any required personnel as qual' applicants become available. Please list any specific personnel required and attach hereto as Exhibit "C'. 6. If this annexation requires the construction /expansion of any other service facility an explanation should be attached hereto as Exhibit "D ". 7. The effective date of implementation of this service plan will be Upon Annexation t Date • SERVICE PLAN FOR THE POLICE DEPARTMENT RE: Proposed annexation of 16,52 acres (Baytown Christian Academy). 13.57. 1. The area being annexed is described as a Main street and north of the Republic of Texas Plaza. being in the H. F. Gillette Survev in Harris 2. The area will be assigned to the following service area: 0 f 5T- 3 _ The newly annexed area will receive the same services as other developments in the area. I The annexation of this area .9jwill not require the construction of additional buildings for this Department. Please list any new building requirements and attach hereto as Exhibit "A ". 4. The annexation SIC /will not require the purchase of additional vehicles. Any purchases required will be made within two and one -half years of the date of annexation. Please fist any specific vehicle requirements and attach hereto as Exhibit "B ". 5. The annexation Wwill not require additional personnel. The Department will hire any required personnel as qualified applicants become available. Please list any specific personnel required and attach hereto as Exhibit "C". fi. If this annexation requires the construction /expansion of any other service facility an explanation should be attached hereto as Exhibit "D ". 7. The effective date of implementation of this service plan will be Upon Annexation Date • A / SERVICE PLAN FOR THE ENGINEERING DEPARTMENT I3_S-Z RE: Proposed annexation of 16-.51 acres (Baytown Christian Academy). i. The area being annexed is described as a � 2�a 2 cre tract Qf ,larld yvest of and ddjaqgnx to North Main Street and north of the Republic of Texas Plaza—being in the H, F, QillgUC SgLyer in Harris County. Texas. 2. The area will be assigned to the following service area: . The newly annexed area will receive the same services as other developments in the area. 3. The annexation 'of this area wilot require the construction of additional buildings for this Department. Please list any new building requirements and attach hereto as Exhibit "A". 4. The annexation wil will n require the purchase of additional vehicles. Any purchases required will be made within to and one -half years of the date of annexation. Please list any specific vehicle requirements and attach hereto as Exhibit "B ". 5. The annexation wil i n require additional personnel. The Department will hire any required personnel as qual' scants become available. Please list any specific personnel required and attach hereto as Exhibit "C'. 6. If this annexation requires the construction /expansion of any other service facility an explanation should be attached hereto as Exhibit "D ". cous✓I-T' wmY ,4,6d"c WAS 7. The effective date of implementation of this service plan will be Upon Annexation . Signature . Date • r • SERVICE PLAN FOR THE HEALTHIEMERGENCY MANAGEMENT DEPARTMENT RE: Proposed annexation of 16.52 acres (Baytown Christian Academy). 1. The area being annexed is described as a 16.52 -acre tract of land west of and adjacent to North Main Street and nom of _the Republic of Texas Plaza, being in the H. F. Gillette. Survey in Harris County. Texas. t 2. The area will be assigned to the following service area: The newly annexed area will receive the same services as other developments in the area. 3. The annexation 'of this area will / dl n wre the construction of additional buildings for this Department. Please list any new a ing requirements and attach hereto as Exhibit "A ". 4. The annexation will671-11—no—tNeQuire the purchase of additional vehicles. Any purchases required will be made within and one -half years of the date of annexation. Please list any specific vehicle requirements and attach hereto as Exhibit "B ". 5. The annexation wil will n require additional personnel. The Department will hire any required personnel as qual' ap icants become available. Please list any specific personnel required and attach hereto as Exhibit "C'. 6. If this annexation requires the construction /expansion of any other service facility an explanation should be attached hereto as Exhibit "D ". 7. The effective date of implementation of this service plan will be Upon Annexation . M FV 10,1^' �/e�i.i UQf s,C.a� /K4 O� +s �� -7 e�vr+ll L� J - ptn.rc �� R v i [.rr ORDINANCE NO. 9553 ® AN ORDINANCE OF THE CITY COUNCIL, CITY OF BAYTOWN, TEXAS, AUTHORIZING THE PAYMENT OF ONE HUNDRED SEVENTY -FIVE THOUSAND NINETY -SIX AND 68/100 DOLLARS ($175,096.68) TO PEXX, INC., FOR THE INSTALLATION OF A BROADBAND WIRELESS NETWORK INFRASTRUCTURE FOR ELEVEN (11) LOCATIONS AND A MOBILE WIRELESS NETWORK COMPRISED OF TWELVE (12) ACCESS POINTS AND TEN (10) MOBILE UNITS AND SOFTWARE TO MAINTAIN AND OPERATE THESE SYSTEMS; MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, the City of Baytown is a member of the cooperative purchasing program established under Sections 271.082 and 271.083 of the Texas Local Government Code; and WHEREAS, the Qualified Information Services Vendor Catalogue Purchasing Program is such a program, allowing municipalities to purchase automated information systems products and/or services in an efficient, cost effective, and competitive procurement method, and WHEREAS, the City of Baytown in making a purchase under a state contract through such cooperative purchasing program satisfies state. law requiring municipalities to seek competitive bids or proposals for the purchase of the item; NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Counci 1 of the City of Baytown hereby authorizes the payment of ONE HUNDRED SEVENTY -FIVE THOUSAND NINETY -SIX AND 68/100 DOLLARS ($175,096.68) to Pexx, Inc., for the installation of a broadband wireless network infrastructure for eleven (11) locations and a mobile wireless network comprised of twelve (12) access points and ten (10) mobile units and software to maintain and operate these systems. Section 2: That the City Manager is hereby granted general authority to approve any change order involving a decrease or an increase in costs of TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or less, provided that the original contract price may not be increased by more than twenty-five percent (25 %) or decreased by more than twenty-five percent (25 %) without the consent of the contractor to such decrease. Section 3: 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 I O'h day of April, 2003. PETE C. ALFARO, Mayor ATT G Y W. SMITH. City Clerk ® APPROVED AS TO FORM: d'.D /..,, 1'�4 ACIO RAMIREZ, SR., C& Attorney FAKaren\Files \City Cowicil\ Ordinanccs\ QISVpurchaseDellConiputer &Soflware.doc ORDINANCE NO. 9552 ® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, APPROVING THE WATER SUPPLY CONTRACT — TREATED WATER BETWEEN THE BAYTOWN AREA WATER AUTHORITY AND COUNTRY TERRACE WATER CO., INC.; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ****************************************************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** WHEREAS, Country Terrace is located on Wallisville Road between Thompson Road and Wade Road and has a population of approximately 1,800 and 323 connections; and WHEREAS, on September 19, 2001, the Board of Directors of the Baytown Area Watei Authority ( "BAWA ") approved the Water Supply Contract — Treated Water (the "Contract ") with Country Terrace contingent upon a capital buy -in fee of $88,748 and approval from the City of Houston; and WHEREAS, on April 12, 2002, BAWA received a majority of the capital buy -in fee, namely $79,873; and WHEREAS, on November 25, 2002, the City of Houston approved the Contract; and WHEREAS, on December 18, 2002, the BAWA Board of Directors approved a payment arrangement for the balance of the capital buy -in fee of $8,875 over a one -year term; and WHEREAS, pursuant to Chapter 600, Acts of the 63`' Legislature, Regular Session, 1973, the City Council of the City of Baytown must approve the Contract; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section l: That the City Council of the City of Baytown, Texas, hereby approves the Water Supply Contract — Treated Water between the Baytown Area Water Authority and the Country Terrace Water Co., Inc. A copy of such contract 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 vote of the City Council of the City of Baytown this the 10`h day of April, 2003. PETE C. ALFARO, M` yor ATTEST: Z W /A G :Y W. SMITE, City Clerk • APPROVED AS TO FORM: Gj pre 4KNACI0 RAMIREZ, SR. .ty Attorney F:\Karen\Files \City Council\ Ordinances\ ApproveBAWAContractWCountryTerrace.doc I Water Supply Contract -- Treated Water Country Terrace Water Co. STATE OF TEXAS COUNTY OF HARRIS This Water Supply Contract -- Treated Water, hereinafter referred to as the "Contract," is made and entered into on the date herein after last specified by and between the Baytown Area Water Authority, a governmental agency and a body politic and corporate of the State of Texas, created pursuant to Chapter 600, Acts of the 63rd Legislature, Regular Session, 1973, hereinafter referred to as `BAWA," and the Country Terrace Water Co., Inc., a Texas corporation having a mailing address of P.O. Box 24433, Houston, Texas 77229, hereinafter referred to as "CTW." WHEREAS, BAWA has the right under a contract with the City of Houston to buy untreated water from the City of Houston; and WHEREAS, BAWA has constructed and will continue to repair, construct and modify certain facilities to treat and deliver water to its customers at several points of delivery; and WHEREAS, CTW has constructed or contracted with BAWA to construct certain facilities to enable CTW to receive treated water from BAWA; and WHEREAS, BAWA desires to sell quantities of treated water to CTW; and WHEREAS, CTW, subject to the terms and conditions contained herein, desires to purchase from BAWA its treated water; and WHEREAS, BAWA and CTW have found, and do hereby find, that BAWA and CTW are authorized by the laws of the State of Texas to enter into a contract for the sale of water upon such terms and for the period of time hereinafter set forth; and WHEREAS, CTW is authorized to enter into a contract for the purchase of treated water from BAWA pursuant to Section 54.218 of the Texas Water Code; NOW THEREFORE, for and in consideration of the premises and the mutual covenants and agreements herein contained, the parties hereto do hereby mutually agree as follows: ARTICLE I DEFINITIONS Unless a different meaning or intent clearly appears from the context, the following words • and terms shall have the meanings specified in this Article, respectively: EMU A 1.01 "Act" means Chapter 600, Acts of the 63rd Legislature, Regular Session, 1973. 1.02 "BAWA Contract" means the Water Supply Contract between the City of Houston and Baytown Area Water Authority, dated October 24,1994, between BAWA, as buyer,-and the City of Houston, Texas, as seller, a copy of which is attached hereto and incorporated herein for all intents and purposes. 1.03 `Beginning Date" shall mean the date that CTW begins receiving treated water from BAWA under this Contract or the effective date hereof, whichever is later. Such date may occur after the effective date of this Contract as defined in Article IX. Provided, however, that if CTW does not begin receiving treated water within one year of the effective date hereof, BAWA shall be under no further obligation to supply CTW with treated water. 1.04 "CTW's Facilities" shall mean facilities constructed by CTW to enable CTW to receive treated water. 1.05 "Contract Quantity" shall mean the maximum quantity of treated water that BAWA agrees to reserve and sell to CTW pursuant to Section 2.01 herein. 1.06 "Contract Term" is defined in Article IX. 1.07 "General Manager" shall mean the General Manager of the Baytown Area Water Authority or any successor agency and all persons designated by the General Manager to administer the sale and delivery of water to CTW. 1.08 "MGD" is an abbreviation for million gallons of water per day. As used in this contract, "MGD" refers to a quantity of water during a period of time expressed for convenience in terms of an average daily quantity during a calendar month (unless a different period of time is specified). The volume of two MGD for a calendar month, for example, is calculated as follows: Two million gallons multiplied by the number of days in such calendar month. 1.09 "Point of Delivery" shall mean those delivery points as indicated on Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes, to which BAWA agrees to deliver treated water to CTW. 1.10 "Point of Measurement" shall mean the location of the meter at which CTW's consumption of water is measured, more particularly described in Exhibit "A." 1.11 "Prof ect" means the property, works, facilities and improvements, whether previously existing or to be made, constructed or acquired, within or without the boundaries of BAWA, necessary (a) to acquire surface water supplies from sources both within and without the boundaries of BAWA, including particularly the sources provided by BAWA's Contract (herein defined), 2 0 (b) to conserve, store, transport, treat and purify untreated water purchased by BAWA pursuant to BAWA's Contract, and (c) to distribute, sell and deliver treated water to CTW pursuant to the terms of the Contract. 1.12 "Service Area" shall mean the area within the boundaries more particularly described in Exhibit "B," which is attached hereto and incorporated herein for all intents and purposes. 1.18 "TNRCC" shall mean the Texas Natural Resource Conservation Commission or its successor. 1.13 "Water" shall mean potable water meeting the minimum drinking water standards prescribed by Texas Department of Health Resources and Texas Natural Resource Conservation Commission, and their successor agencies. ARTICLE H SALE AND DELIVERY OF WATER 2.01 Subject to the terms and conditions of this Contract, during the Contract Tenn, BAWA agrees to sell and deliver (or cause to be delivered) to CTW, all of CTW's water requirements of treated water at the Points of Delivery at daily rates of delivery; and CTW agrees to purchase from BAWA, all of CTW's treated water requirements for resale at the Points of Delivery during the term of this Contract. It is expressly agreed to and understood that BAWA shall not be obligated to deliver to CTW treated water in excess of the Contract Quantity which shall be the monthly average per day of 0.110 MGD. 2.02 The Points of Delivery for treated water sold under this-contract shall be designated in writing by CTW; provided, however, BAWA reserves the right to reject any Point of Delivery designated by CTW which would affect, interfere with or increase the cost of any other facilities or operations which BAWA might wish to construct or implement, or plan to construct or implement, or which would adversely affect BAWA's ability to provide treated water to any of its customers. Both BAWA and CTW agree that the Points of Delivery shall be those indicated on Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes. Additionally, CTW may give BAWA notice in writing of any additional or change in Point(s) of Delivery designated by CTW, and BAWA agrees to accept or reject such Point(s) of Delivery by a response in writing within thirty (30) days after BAWA's receipt of the notice. 2.03 Treated water may be delivered to CTW from any source or combination of sources available to BAWA. • 2.04 The treated water to be delivered shall meet minimum standards prescribed by the State of Texas for municipal purposes (as such term is defined by the TNRCC in its rules) and shall be only used by CTW within the Service Area. 2.05 If CTW wishes to reserve for itself additional monthly quantities of treated water, CTW must notify BAWA in writing of CTW's desire to do so. The General Manager may, at his discretion after considering the treated water requirements of CTW and BAWA's obligations and commitments, increase the quantity of treated water supplied to CTW; provided, however, that BAWA shall be under no obligation to deliver treated water in excess of Contract Quantity. BAWA may, at its discretion, discontinue delivery of such additional monthly requirements of treated water by giving CTW thirty (3 0) days' written notice. 2.06 CTW shall own and be responsible for all lines connected to BAWA's transmission line, beginning at the point where the metering device is installed to meter sales to CTW. ARTICLE III CONSTRUCTION OF THE PROJECT 3.01 CTW agrees to proceed promptly with the acquisition and construction of the Project with monies lawfully available for such purpose after obtaining written approval of the plans and specifications from BAWA. However, such approval shall not be deemed to be for the benefit of CTW, bur rather just for the protection of BAWA's system. 3.02 If CTW desires to materially revise the scope of or the plans and specifications for the Project, such proposed revisions shall be submitted to BAWA for approval. If BAWA approves such revisions, the Project shall be modified. ARTICLE IV RATES AND PRICES 4.01 As a contribution to the capital investment of BAWA and in consideration for connection of CTW's work system, CTW shall. pay EIGHTY -EIGHT THOUSAND SEVEN HUNDRED FORTY -EIGHT AND N01100 DOLLARS ($88,748.00), within thirty (30) days ofthe funding of the first issue of capital improvement bonds by CTW. Notwithstanding the above, however, CTW is obligated and hereby promises to pay or cause to be paid to BAWA said amount no later than one year from the date of this contract. Additionally in order to further secure CTW's assurance of the availability of such funds, CTW will provide or cause to be provided to BAWA an irrevocable letter of credit, payable to BAWA, in a form acceptable to BAWA in the amount of EIGHTY -EIGHT THOUSAND SEVEN HUNDRED FORTY -EIGHT AND NO /100 DOLLARS ($88,748.00), so that, should BAWA be required to enlarge or expand its water treatment facilities to provide treated water to CTW in the amounts set forth herein prior to the payment to BAWA, by CTW of EIGHTY -EIGHT THOUSAND SEVEN HUNDRED FORTY -EIGHT AND N0 1100 DOLLARS ($88,748.00), described above, then, in such event, the Letter of Credit can be drawn 4 W upon by BAWA in such amounts and installments necessary in order to provide funds for such enlargement or expansion of water treatment facilities in the amount of CTW's pro rata share of any such capital expansion costs. BAWA shall also be entitled to draw upon the full amount of such letter of credit of the full amount of the capital investment contribution has not been paid within one year of the date of this Contract. 4.02 Whenever CTW's consumption shall exceed Contract Quantity by ten percent (10 %), a five percent (5%) surcharge shall be charged against that portion of the consumption that exceeds the Contract Quantity. Provided, however, this surcharge shall not apply to any increase in the quantity of treated water granted by the General Manager pursuant to Section 2.05 hereof. 4.03 All water sold and delivered by BAWA to CTW for which CTW is obligated to pay hereunder shall be sold to CTW at the rate of $1.29 per one thousand gallons. 4.04 The amount of water delivered to CTW shall be measured by the metering equipment located at the point of delivery. 4.05 Additionally, CTW understands and agrees that BAWA may at anytime, by' order duly enacted, increase or change the price or prices for treated' water as set forth in this article; provided, however that except where an independent rate analysis conducted by a qualified concern indicates that certain rate increase is required, the price or prices for treated water shall not be increased percentagewise to CTW during any twelve (12) month period of this contract in excess of the percentage rate increase in BAWA's water rates to other purchasers of treated water during the same period. ARTICLE V REPORTS 5.01 Within fifteen (I S) days after the end of each quarterly period during the tern of this Contract, CTW shall furnish BAWA with a statement under oath showing the quantities and sources of all water for use or resale by CTW. ARTICLE VI MEASURING EQUIPMENT 6.01 At its own cost and expense, CTW shall furnish and install at the Point of Delivery hereunder, measuring equipment properly equipped with meters, totalizers and devices of standards type for measuring and recoding accurately the quantity of water delivered under this Contract. The meters shall have a capacity for measuring the quantity of water delivered within an accuracy tolerance of two per cent (2 %) plus or minus for a given rate of flow. CTW shall also install, operate and maintain as required by BAWA, pressure regulating devices and equipment. Such measuring equipment shall be approved by BAWA and after BAWA's approval of the installation, same shall become property of BAWA. All measuring equipment shall be owned by BAWA, even when • M purchased by CTW, and all measuring equipment shall be located at the Point of Delivery as shown on Exhibit "A." 6.02 During all reasonable hours as determined by the General Manager in his sole discretion, BAWA, the City of Houston, and the Coastal Water Authority of Texas shall have access to the measuring equipment. CTW may have access to all records pertinent to determining the measurement and quantity of treated water actually delivered hereunder, but the reading of the measuring equipment for purposes of billing shall be done by BAWA. 6.03 After approved installation thereof, BAWA shall maintain the measuring equipment within the accuracy tolerance specified in Section 6.04 by periodic tests. BAWA shall conduct such tests at least once every twelve (12) months and shall notify CTW at least forty-eight (48) hours in advance of the time and location at which tests are to be made. BAWA agrees to properly test said measuring equipment at BAWA's cost when requested to do so by CTW once every twelve (12) months. If CTW requests an additional test within twelve (12) months, BAWA shall charge CTW an amount equal to BAWA's costs to perform such test unless the test reveals that the equipment registers one hundred two percent (102 %) or more for a given flow rate. In addition, CTW shall have the right to independently check, at its own cost, said measuring equipment at any time upon forty-eight (48) hours' notification to the General Manager and opportunity for the General Manager to witness such tests. 6.04 Should any test of the measuring equipment in question show that the equipment registers either more than one hundred two percent (102 %) or less than ninety-five percent (95 %) of the water delivered for a given flow rate, the total quantity of water delivered to CTW will be deemed to be the average daily consumption as measured by the measuring equipment when in working order, and the meter shall be calibrated to the manufacturer's specifications (in the case of Venturi meters) or the AWWA specifications (for all other types of meters) for the given rate of flow, or replaced by BAWA with accurate measuring equipment that is tested before it is placed in service. The adjustment shall be for a period extending back to the time when the inaccuracy began, if such time is ascertainable; and if such time is not ascertainable, for a period extending back to the last test of the measuring equipment or one hundred twenty (120) days, whichever is shorter. If, for any reason, the measuring equipment is out of service or out of repair and the amount of treated water delivered cannot be ascertained or computed from the reading thereof, water delivered during the period shall be estimated and agreed upon by the parties hereto on the basis of the best data available. As used in this section, the expression "given rate of flow" means one of the following selected by the General Manager: (a) the total quantity of water delivered during the preceding period (usually a calendar month) as reflected by the totalizer, converted to gallons per minute; (b) high, low and intermediate rates of flow in the flow rate, as reflected by the flow 40 recording devices; 3 9 (c) the applicable Contract Quantity for the current period, usually a calendar month, converted to gallons per minute; or • (d) AWWA- specified test flow rates for that size and type of meter. 6.05 In the event of a dispute between BAWA and CTW as to the accuracy of the testing equipment used by BAWA to conduct the accuracy test, an independent check may be mutually agreed upon between CTW and BAWA and shall be conducted by an independent measuring equipment company suitable to both CTW and BAWA. The cost of such test shall be at CTW's sole expense. 6.06 CTW may install, at its own cost and expense, such check meters in CTW's pipeline or canal as may be deemed appropriate, but BAWA shall have the right of ingress and egress to such check meters during all reasonable hours; provided, however, that billing computations shall be on the basis of the results of the measuring equipment set forth above. ARTICLE VII BILLING AND PAYMENT 7.01 As used in this Article VII, the term "day" shall mean a period of twenty-four (24) consecutive hours beginning at a mutually agreed -upon time on one calendar day and ending at the same time on the next succeeding calendar day, and the term "month" shall mean a period beginning at a mutually agreed -upon time on the first day of a calendar month and ending at the same time on the first day on the next succeeding calendar month. 7.02 The measuring equipment shall be read on the day at the end of each month (or at such period of frequency arranged between the parties) and at a mutually agreed upon time, or as near thereto as practicable. 7.03 The quantities of treated water for which payment is due by CTW hereunder in any month shall be the total quantity of treated water delivered to CTW in such month determined by the measuring equipment described in Article VI hereof. 7.04 BAWA shall bill CTW at CTW's address within ten (10) days after the read date by a statement showing the quantity of water used during the preceding month. Payment shall be due and payable to BAWA at its offices in Baytown, Harris County, Texas, on or before the twentieth day after receipt of such statement. 7.05 Should CTW fail to tender payment of any amount when due, interest thereon shall accrue at the rate of ten percent per annum from the date when due until paid and CTW shall be deemed to be in default. 7 • ARTICLE VIII TITLE TO AND RESPONSIBILITY FOR WATER 8.01 As between BAWA and CTW, BAWA shall be in exclusive control and possession of, and solely responsible for, all treated water deliverable hereunder and solely responsible for any damage or injury caused thereby until the same shall pass through the Point of Delivery and thereafter, CTW shall be in exclusive control and possession thereof and solely responsible for any injury or damage caused thereby. 8.02 BAWA MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE QUALITY OR DELIVERY PRESSURE OF TREATED WATER, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 8.03 With respect to all water handling facilities located between the Point of Delivery and the Point of Measurement, BAWA and CTW specifically agree: (a) that all such facilities, other than the measurement equipment itself, shall be and remain the property of CTW subject to the terms of this Contract; (b) that CTW shall take all reasonable steps to maintain such facilities and to prevent leaks or discharges from such facilities; (c) that CTW shall repair any such leak or discharge at once upon receiving notice thereof and pay BAWA the price of any water lost by reason of such a leak or discharge; (d) that CTW shall correct or repair any damage caused by any such leak or discharge and shall hold BAWA harmless from and against any such damage and claims therefore; (e) that CTW shall alter or relocate, at its sole cost, any such facilities whenever BAWA shall reasonably request in writing that the same be done; and (f) that CTW shall promptly remove such facilities and restore their locations to their pre- existing conditions whenever this Contract is no longer in effect and BAWA so requests in writing. ARTICLE IX TERM This Contract shall be in force and effect beginning on the date of execution by BAWA until December 31, 2021, at 8:00 a.m. 9 • I♦ ARTICLE X PERFORMANCE BY BAWA AND CTW 10.01 BAWA covenants and agrees that it will not contract for the sale of water to other users to such an extent or for such quantities as to impair BAWA's ability to perform fully and punctually its obligations to CTW under this Contract. In case of temporary shortage of water, notwithstanding BAWA's compliance with the portions of this Article X, BAWA shall distribute the available supply as provided by the laws of the State of Texas, particularly Section 11.039(a) of the Texas Water Code, as amended. 10.02 Pursuant to the Amendatory Contract entered into by the City of Houston and the San Jacinto River Authority, which is incorporated herein by this reference, CTW covenants and agrees that it shall take treated water for the purpose of distribution through its system, and such water shall be used for municipal purposes (as such term is defined by TNRCC Rules, currently in effect or as hereinafter amended) and for no other purposes. CTW covenants and agrees that such treated water shall be sold, distributed or used and ultimately consumed only for residential household or other strictly municipal purposes exclusively within the Service Area. No extension of these boundaries may be made by CTW without written consent of BAWA as well as the written consent of the San Jacinto River Authority and City of Houston, when required pursuant to the Water Supply Contract between the City of Houston and BAWA, dated October 24, 1994. CTW agrees to include covenants similar to those contained in this Section 10.02 in any sales or contracts for sale of water by CTW to any other entity. CTW agrees to submit the wording of such covenants to BAWA for the written approval of BAWA and all other required entities prior to entering into such contracts. CTW understands and agrees that BAWA, the City of Houston and/or the San Jacinto River Authority may enforce the covenants contained in Section 10.02 herein by an action brought directly against CTW. In the event that BAWA and/or the City of Houston maintains any legal proceeding to enforce such covenants, CTW agrees to indemnify BAWA and/or the City ofHouston in the amount of all expenses relating to the legal proceeding, including, but not limited to, costs of court and reasonable attorneys' fees. 10.03 CTW acknowledges that according to the terms of the contract between BAWA and the City of Houston, BAWA may be liable to the City of Houston and/or the San Jacinto River Authority for monetary damages in the event that CTW (or any purchaser of water from or through CTW) fails to comply with the restrictions and limitations on the sale of water set out in Section 10.02 herein. CTW acknowledges that such monetary damages would amount to seventy-five percent (75 %) of the consideration or revenue received by BAWA for the estimated amount of water distributed, sold or used in violation of such restrictions or limitations, plus all litigation expenses, reasonable attorney's fees, and all other remedies available to the City of Houston and/or the San Jacinto River Authority. CTW hereby agrees to totally indemnify, defend, and save BAWA harmless from and against any such expenses and liability which BAWA might incur or any loss BAWA might suffer, as a result of any failure by CTW, or any purchaser of water from or through CTW, to comply with such restriction and limitation. CTW agrees that in the event that CTW furnishes or sells water or water services to a third party that in turn will furnish water to the ultimate consumer, CTW shall include covenants in any such sales or contracts for sale of water to such third party(ies) E to ensure that said other entity(ies) will likewise indemnify, hold harmless, and, defend BAWA. CTW agrees to submit the wording of such covenants for the approval of BAWA prior to entering into such contracts. CTW acknowledges that according to the terms of the contract between the City of Houston and the San Jacinto River Authority, the City of Houston may be liable to the San Jacinto River Authority for monetary damages in the event that CTW (or any purchaser of water from or through CTW) fails to comply with the restrictions and limitations on the sale of water set out in Section 10.02 herein. CTW acknowledges that such monetary damages would amount to seventy-five percent (75 %) of the consideration or revenue received by the City of Houston for the estimated amount of water distributed, sold or used in violation of such restrictions or limitations, plus all litigation expenses, reasonable attorney's fees, and all other remedies available to the San Jacinto River Authority. CTW hereby agrees to fully indemnify, defend, and save the City of Houston harmless from and against any such expenses and liability which the City of Houston might incur or any loss the City of Houston might suffer, as a result of any failure by CTW, or any purchaser of water from or through CTW, to comply with such restrictions and limitations. CTW agrees that in the event that CTW furnishes or sells water or water services to a third party that in turn will furnish water to the ultimate consumer, CTW shall include covenants in any such sales or contracts for sale of water to such third party(ies) to ensure that said other entity(ies) will likewise indemnify, hold harmless, and defend the City of Houston. CTW agrees to submit the wording of such covenants for the approval of BAWA and the City of Houston prior to entering into such contracts. 10.04 CTW agrees to maintain, at its sole expense, its water wells, if any, in good repair and working order to facilitate the use of such water wells as an emergency source of supply, if required, should BAWA be unable to deliver the Contract Quantity of water for any reason. CTW shall bear all costs of maintaining and supplying such emergency sources of supply. ARTICLE XI ENVIRONMENTAL CONSIDERATIONS 11.01 On or before the first anniversary of the effective date of this contract; CTW shall approve, implement and throughout the term hereof remain in full compliance with a water conservation program, including, but not limited to, a drought contingency plan, in accordance with the requirements of the TNRCC. Such plan (and any amendments thereto) shall be submitted to the appropriate authority as required by state law for review and approval. In the event that the TNRCC adopts new requirements, CTW shall adopt an amended plan and submit the same to the appropriate authority for review and approval. 11.02 CTW agrees that in the event that CTW furnishes or sells water or water services to a third party that in turn will furnish water to the ultimate consumer, the requirements of this Contract relative to water conservation shall be met through contractual agreements between CTW and the third party, providing for the implementation and continued compliance with a water conservation • program consistent with the requirements of the TNRCC. 10 ARTICLE XII REMEDIES UPON DEFAULT 12.01 In the event of any default by CTW in the performance of any of CTW's obligations hereunder which shall continue for a period of thirty (30) days or more, BAWA shall give written notice to CTW specifying the matter with respect to which CTW is in default and requesting that the same be remedied with promptness and dispatch. In the event CTW, within forty-five (45) days after the mailing of such notice by BAWA, has failed to remedy the matter in default, BAWA may suspend further delivery of treated water to CTW hereunder; and in the event such default on the part of CTW continues for an-additional thirty (30) days, BAWA may, by an additional written notice to CTW, cancel and terminate this contract, whereupon all rights of CTW and all obligations ofBAWA hereunder shall terminate and be at an end. The exercise of such rights shall be in addition to any other remedies available to BAWA under the laws of the State of Texas. 12.02 During any monthly period in which BAWA is unable to deliver to CTW, CTW's daily requirements of water, whether as a result of temporary curtailments resulting from temporary shortages as provided in Section 10.01 hereof or of force majeure as provided in Article XM hereof, CTW shall be obligated to pay BAWA only for the quantities of treated water actually delivered to CTW under this contract during such month. During any such period, CTW shall be free to obtain treated water from other sources. 12.03 The failure of either party to insist in anyone or more instance upon performance of any of the terms, covenants or conditions of this Contract, shall not be construed as a waiver or relinquishment of the future performance of any such term, covenant, or condition by the other party hereto, but the obligation of such other party with respect to future performance shall continue in full force and effect. ARTICLE XIII FORCE MAJEURE 13.01 In the event either party is rendered unable, wholly or in part, by force majeure to carry out any of its obligations under this Contract other than the payment of money, or in the event CTW is rendered unable, wholly or in part, by force majeure to operate CTW's facilities, it is agreed that on such party's giving notice and full particulars of such force majeure in writing or by telefax or telegraph to the other party as soon as possible after the occurrence of the cause relied upon, then the obligations of the party given such notice, to the extent it is affected by force majeure and to the extent that due diligence is being used to resume performance at the earliest practicable time, shall be suspended during the continuance of any inability so caused as to the extent provided but for no longer period. Such cause shall as far as possible be remedied with all reasonable dispatch. 13.02 The term "force majeure" as used herein, shall include, but not be limited to, acts of God, strikes, lockouts, or other industrial disturbances, acts of the public enemy, war, blockades, insurrections, riots, epidemics, landslides, lighting, earthquakes, fires, storms, floods, washouts, 11 droughts, tornadoes, hurricanes, arrests and restraints of government and people, explosions, breakage or damage to machinery, equipment, pipelines or canals, and any other inabilities of either party whether similar to those enumerated or otherwise and not within the control of the party claiming such inability which by the exercise of due diligence and care such party could not have avoided. 13.03 It is understood and agreed that the settlement of strikes or lockouts shall be entirely within the discretion of the party having the difficulty and the above requirement that any force majeure be remedied with all reasonable dispatch shall not require the settlement of strikes or lockouts by acceding to demands of the opposing party when such course is inadvisable in the discretion of the party having the difficulty. 13.04 CTW shall not be guaranteed any specific quantity or pressure of water whenever BAWA's treated water supply is limited or when BAWA's equipment may become inoperative due to unforeseen breakdown or scheduled maintenance and repairs, and BAWA is in no case to be held to any liability for failure to furnish any specific amount or pressure of water. BAWA agrees that it will attempt to make any necessary repairs or adjustments to its equipment within reasonable times mutually agreeable to both parties. It is further agreed that BAWA may, without liability of default, interrupt its services hereunder to make necessary alterations to or repairs in its facilities, but only if such interruption cannot otherwise reasonably be avoided. BAWA shall schedule interruptions in advance after consultation with CTW. ARTICLE XIV ADDRESS AND NOTICES 14.01 Until CTW is otherwise notified in writing by BAWA, the address of BAWA is and shall remain as follows: Baytown Area Water Authority Attn: General Manager 2401 Market Street Baytown, Texas 77520 Until BAWA is otherwise notified in writing by CTW, the address of CTW is and shall remain as follows: Country Terrace Water Co, Inc. Attn: President P.O. Box 24433 Houston, Texas 77229 -4433 14.02 All written notices, statements, and payments required or permitted to be given under . this Contract from one party to the other shall be deemed given by telefax or the deposit in a United States Postal Service mailbox or receptacle of certified or registered mail, with proper postage 12 affixed thereto, addressed to the respective other party at the address set forth above or at such other address as the parties respectively shall designate by written notice. ARTICLE XV MISCELLANEOUS PROVISIONS 15.01 This contract shall bind and benefit the respective parties and their legal successors, but shall not otherwise be assignable, in whole or in part, by either party without first obtaining the written consent of the other; provided, however, that CTW shall have the right, without any consent of BAWA to pledge or otherwise assign CTW's rights hereunder to the extent required by any mortgage, deed of trust or other similar agreement to which CTW may be, or hereafter become a party; provided that, CTW's successor or assignee, as the case may be, is a responsible person or entity and shall (by operation of law or otherwise) expressly assume CTW's obligations hereunder; and provided, further, however, that no successor or assignee of CTW shall be entitled to receive water or sell water to a third party under this Contract unless and until the City of Houston and the San Jacinto River Authority give their written consent to such assignment. 15.02 This Contract shall be for the sole and exclusive benefit of BAWA and CTW and shall not be construed to confer any rights upon any third party, except as expressly provided in Article X. BAWA shall never be subject to any liability in damages to any customer of CTW for any failure to perform under this Contract. 15.03 This Contract shall be subject to all present and future valid laws, orders, rules and regulations of the United States of America and the State of Texas and of any regulatory body having j urisdiction. 15.04 This instrument contains all the agreements made between the parties concerning the sale and delivery of water by BAWA to CTW at the Point of Delivery set out in this Contract. 15.05 The construction, interpretation and performance of this Contract shall be governed by the laws of the State of Texas, and venue shall lie in Harris County, Texas. 15.06 All parties agree that should any provision of this Contract be determined to be invalid or unenforceable, such determination shall not affect any other term of this Contract, which shall continue in full force and effect. The parties agree that this Agreement shall not be construed in favor of or against any party on the basis that the party did or did not author this Agreement. 15.07 Each party has the full power and authority to enter into and- perform this Contract, and the person signing this Contract on behalf of each party has been properly authorized and empowered to enter into this Contract. The persons executing this Contract hereby represent that they have authorization to sign on behalf of their respective entities. 15.08 The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Contract. 13 • n IN WITNESS WHEREOF, the parties hereto have executed this contract as of the,�day of September, 2001, in multiple copies each of which shall be deemed to be an original, but all of which shall constitute but one and the same contract. BAYTOWN AREA WATER AUTHORITY 1 n ROBERT L. GILLETTE, President ATTEST: PETER R. BUENZ, Sec ary COUNTRY TERRACE WATER CO., INC. 4S ature j ePr`9 ljow Printed Name Title STATE OF TEXAS COUNTY OF HARRIS Before me, _0&=, M EK"L4- the undersigned notary public, on this day personally appeared E,2 Kv in his/her capacity as oW nleiZ of Country Terrace Water Co., Inc. (4 one) known to me proved to me on the oath of proved to me through his current description of identification card or or "-7S9Z ► X -bL other document issued by the federal goverment or any state government that contains the photograph and signature of the acknowledging person) 14 • to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed that instrument for the purposes and consideration therein expressed. t Given under my hand and seal of office thi day of September, 2001. — pa"�� Notary Public in and for the State of Texas PATTI MERRELL * * Notary Public, State of Tp"S Canmissim Expires Nov. 27, 2004 cAdh274\13AWA \country Terrace WateAWaterSuppKontract082001 15 My commission expires: // %a 7lo y APPROVED TO CONFORMING TO REQUIREMENTS OF CONTRACT NO. 34739, SECTIONS 9.2 AND ": ANTHONY-HALL, City A CITY OF HOUSTON =�i w z Er w F- 0 w O w ,--V) O 0- Ir CL • 1 I' z O U) 2 ,6 1<J ----- - - - --I ! 1f�T -- - - - --I L _ I i -�i i-� I r -I- f L� 'L- -1 L � iF--� O F L_J� J L i h- I I I_-a C I I I I L_ J F -1 I 7 r— 1 1 it _i i -! 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BE IT ORDAINED BY THE CITY COUNCIL OF TIIE 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 a contract with Thos. Y. Pickett & Company, Inc., for the appraisal of property within the Baytown Industrial Districts. A copy of said Agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to Thos. Y. Pickett & Company, Inc., of a sum not to exceed TWENTY -EIGHT THOUSAND AND NO 1100 DOLLARS ($28,000.00). Section 3: That the City Manager is hereby granted the general authority to approve a decrease or an increase in costs by TWENTY -FIVE THOUSAND AND NO 1100 DOLLARS ($25,000.00) or less, provided that the amount authorized in Section 2 hereof may not be increased by more than twenty-five percent (25 %). Section 4: 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 10''' day of April, 2003. ATTEST: 2a_ GA W. MITH--, City Clerk APPROVED AS TO FORM: NACIO RAMIREZ, SR ity Attorney FAKaren \Fi1es \City Council\ OrdinancesCFYPickett2003Ordinance .doc PETE C. ALFARO, N4fayor r: Appraisal Agreement for Baytown Industrial Districts THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTIES OF HARRIS § AND CHAMBERS § THAT WHEREAS, the City Council of the City of Baytown, Harris and Chambers Counties, Texas, hereinafter referred to as the "City," does not have available among the files and records of such City a survey of specific industrial and utility plants of whatever character for the Baytown Industrial Districts, nor do they have the necessary scientific or technical skill to compile, evaluate, and make such survey, for the convenience and information of the Tax Assessor - Collector of said City in assessing the valuations of such properties in legal conformity with all other property valuations in said City for the Baytown Industrial Districts for which the City of Baytown collects taxes; and WHEREAS, the Industrial Appraisal Review Board and the City of Baytown, sitting as such board, as required by law, has heretofore and will in the future have submitted to it for inspection, correction, or equalization and approval, renditions of or assessments against specific industrial and utility plants; and in the performance of the duties by law upon such board, will have need for testimony pertaining to such properties, requiring scientific knowledge, technical skill and experience in analysis and appraisal of such properties; and WHEREAS, the City Council of the City of Baytown for the Baytown Industrial Districts has determined the need and advisability of employing experts skilled in the matter of analysis and appraisal of such properties to compile information for use by the Industrial Appraisal Review Board in its inspecting, correcting, equalizing, and approving the valuations of or assessments against such properties, duly submitted to it by the Tax Assessor - Collector, for the City of Baytown for the Baytown Industrial Districts; and WHEREAS, it is ascertained and determined that Thos. Y. Pickett & Company, Inc., of Dallas County, Texas, hereinafter referred to as "Company," are experts with many years experience in such matters and employ professional engineers, registered in this State, who have scientific and technical knowledge; and WHEREAS, it is found and determined to be to the advantage of the City of Baytown for the Baytown Industrial Districts that said City Council employ the services of Thos. Y. Pickett & Company, Inc., for said purposes; IT IS THEREFORE AGREED BY AND BETWEEN the City of Baytown for the Baytown Industrial Districts of Harris and Chambers Counties, Texas, acting herein by and through its City Council, and Thos. Y. Pickett & Company, Inc., of Dallas County, Texas, as follows: EMU A Appraisal Agreement for Baytown Industrial Districts, Page 1 I. ® The Company agrees and obligates itself to make such analysis and survey as of January 1, 2003, through December 31, 2003, which shall include all of the information which the Company after exercising due diligence is able to procure pertaining to the character, quality, quantity, as well as the value of specific industrial and uti lity plants within the City and within the Baytown Industrial Districts for use of the Industrial Appraisal Review Board in reviewing and equalizing the assessments against such properties submitted to it by the Tax Assessor- Collector for said Board's approval, and for the further purpose of furnishing the testimony as hereinafter specified. • M The Company further agrees to provide such expert testimony as maybe required in any civil litigation arising from the appraisals of property covered by this contract, at a rate not to exceed SIX HUNDRED AND NO 1100 DOLLARS ($600.00) per day. The Company shall also be reimbursed by the City for reasonable travel and expenses. Appraisal Agreement for Baytown Industrial Districts, Page 2 • 111. is The Company further agrees to compile all information procured during its investigation, analysis, and survey, in such a manner as to facilitate and expedite the introduction of such expert testimony as requested by the Industrial Appraisal Review Board, based on such information and presented in concise and intelligent form acceptable to the Board. WFA The Company further agrees to make available at stated sessions of the Industrial Appraisal Review Board, such qualified, competent, technical personnel as maybe required or requested by the City and to furnish for the benefit of the Industrial Appraisal Review Board, such expert testimony as may be deemed advisable by said Board pertaining to the estimated valuation of specific industrial and utility plants as enumerated, as of January 1, 2003: ADVANCED AROMATICS, INC. AIR PRODUCTS, INCORPORATED BAYER CORPORATION BAYTOWN ENERGY CENTER, L.P. (FKA CALPINE CORPORATION) BORDEN CHEMICAL, INC. BP AMOCO CHEMICAL COMPANY CHEVRON CHEMICAL COMPANY ECOLOCHEM, INC. EL DORADO NITROGEN COMPANY ENGINEERED CARBONS, INC. EXXON MOBIL CORPORATION (FKA EXXON CORPORATION) FIRST CHEMICAL TEXAS, L.P. HOME DEPOT U.S.A., INC. KOPPEL STEEL CORPORATION NATURAL GAS ODORIZING, INC. RELIANT ENERGY HL &P RHODIA (FKA RHONE- POULENC, INC.) SAMSON CONTROLS, INC. SAW PIPES USA, INC. SEAPAC, INC. SUN CHEMICAL CORPORATION TEXAS BRINE COMPANY BAYTOWN, LLC UNTMAST, INC. U.S. DENRO STEEL, INC. U.S. FILTER CORPORATION USX CORPORATION DOME PETROCHEMICAL (FORMERLY WEST BAY ORGANICS, L.C.) Appraisal Agreement for Baytown Industrial Districts, Page 3 It is expressly understood that Thos. Y. Pickett & Company, Inc., will work diligently with the Harris and Chambers County Appraisal Districts and the appraisal firm of Pritchard & Abbott in coordinating and allocating values located in or appraised by the Harris and Chambers County Appraisal Districts. All such efforts will be done in a harmonious manner in properly describing, defining and allocating values for the Baytown Industrial Districts. Moreover, it is further understood that Thos. Y. Pickett & Company, Inc., cannot consistently defend or testify at Review Board hearings or civil courts having jurisdiction to any value assigned or adjudicated by the Industrial Appraisal Review Board for the respective Appraisal Districts in its final action in certifying valuations for such properties for 2003. V. Company further understands and agrees that it shall render to the City general advice on the planning for the impact of the Pollution Control Exemptions granted by the Texas Natural Resources Conservation Commission and valued under the authority of Harris and Chambers County Appraisal District, as applicable, and the Baytown Industrial Appraisal Review Board for 2003, and new construction exemptions granted by the City as defined within the industrial district agreements. VI. FOR AND IN CONSIDERATION of the skilled services, technical knowledge and experience of the Company, in performance of the obligations herein agreed to be performed by the Company, the City agrees and obligates itself to pay the Company the sum of TWENTY -EIGHT THOUSAND AND NO /100 DOLLARS ($28,000.00) for the year 2003, as full compensation for the services rendered the City for the Baytown Industrial Districts under the terms of this Agreement. VII. Payments shall be made on this contract at the office of the Company, 4464 Sigma Road, Dallas, Texas 75244, from time to time as the work progresses, as follows: FOUR THOUSAND AND NO /100 DOLLARS ($4,000.00) on the first day of April, May, June and July 2003, and the balance shall be paid upon completion of the work and after final action has been taken by the Industrial Appraisal Review Board in and for the City of Baytown for the Baytown Industrial Districts for the year 2003. BI" The said Thos. Y. Pickett & Company, Inc., further agrees that in no way will the said City of Baytown be obligated to Thos. Y. Pickett & Company, Inc., or their assistants, for salaries, expenses, • or materials except as above stated. AAparaisal Agreement for Baytown Industrial Districts, Page 4 • ,x Throughout the term of this Agreement, the Company at its on expense shall purchase, maintain, and keep in force and effect insurance against claims for inj cries to or death of persons or damages to property which may arise out of or result from the Company's operations and/or performance of the services under this Agreement, whether such operations and/or performance be by the Company, its officers, agents, representatives, volunteers, employees or subcontractors or by anyone directly or indirectly employed by any of them or by anyone for whose acts any of them may be liable. The Company's insurance coverage shall be primary insurance with respect to the City, its officers, agents, and employees. Any insurance or self - insurance maintained by the City, its officials, agents and employees, shall be considered in excess of the City's insurance and shall not contribute to it. Further, the Company shall include all subcontractors, if any, as additional insureds under its commercial general liability policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this Agreement: Commercial General Liability (CGL) General Aggregate: $1,000,000 Per Occurrence: $ 500,000 Fire Damage: $ 50,000 a. Coverage shall be at least as broad as ISO CG 00 01 10 93 b. No coverage shall be excluded from standard policy without notification of individual exclusions being attached for review and acceptance. Business Automobile policy (BAP) Combined Single Limits: $ 500,000 a. Coverage for "Any Auto" Errors and Omissions (E &O) Limit: $ 250,000 a. Claims -made form is acceptable. Coverage will be in force for two (2) years after Project is completed. Workers' Compensation: Statutory Limits Employer's Liability: $500,000 a. Waiver of subrogation is required. 0 Upon Execution of this Agreement, the Company shall file with the City valid Certificates of Insurance and endorsements acceptable to the City. Such Certificates shall contain a provision that Appraisal Agreement for Baytown Industrial Districts, Page 5 ® coverage afforded under the policies will not be canceled, suspended, voided, or reduced until at least sixty (60) days' prior written notice has been given to the City via certified mail, return receipt requested. • The Company shall also file with the City valid Certificates of Insurance covering all Subcontractors. The following are general requirements which are applicable to all policies: a. AM Best Rating of A:VII or better. b. Insurance carriers licensed and admitted to do business in the State of Texas will be accepted. C. Liability policies will be occurrence form. E &O can be on claims -made basis. d. City of Baytown, its officials and employees are to be added as Additional Insureds to liability policies. e. Upon request of and without cost to City of Baytown, certified copies of all insurance policies and/or certificates of insurance shall be furnished to City of Baytown's representative. Certificates of insurance showing evidence of insurance coverage shall be provided to the City of Baytown's representative prior to execution of this Agreement. f. Upon request of and without cost to City of Baytown, loss runs (claims listing) of any and/or all insurance coverage shall be furnished to the City of Baytown's representative. 94 This Agreement may be terminated by the City of Baytown for cause or for convenience by giving ten (10) days' written notice to the Company. If this Agreement is so terminated by the City, the Company shall be compensated only for the services actually performed and tendered to the City in accordance with the schedule enumerated in article VII hereof. Upon such notice of termination by the City, the Company shall stop work immediately, mitigate any costs to be paid by the City, and forward all documents which the Company has created in furtherance of this Agreement to the Owner. X1. INDEMNITY THE COMPANY AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND Appraisal Agreement for Baytown Industrial Districts, Page 6 • EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS' FEES, FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR ANY AND ALL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PERFORMED BY THE COMPANY PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF THE COMPANY'S BUSINESS OR ACTIVITIES, OR FROM ANY ACT OR OMISSION BY THE COMPANY, ITS AGENTS, SERVANTS, EMPLOYEES, SUBCONTRACTORS, GUESTS, OR INVITEES PERFORMED IN FURTHERANCE OF THIS AGREEMENT. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE COMPANY AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE COMPANY TO INDEMNIFY AND PROTECT THE CITY FROM THE CONSEQUENCES OF THE COMPANY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS THE SOLE OR CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE ABOVE, THE COMPANY FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. THIS ARTICLE SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT AND SHALL NOT EXPIRE. ON By this Agreement, the City does not consent to litigation or suit, and the City hereby expressly revokes any consent to litigation that it may have granted by the terms of this Agreement or any other contractor agreement, any charter, or. applicable state law. The Company assumes full responsibility for the services performed hereunder. 11 Unless otherwise specified, written notice shall be deemed to have been duly served if delivered in person to the individual, or if delivered at or sent by overnight or facsimile transmission or if delivered or sent by certified or registered mail to its business address as indicated hereinbelow: Appraisal Agreement for Baytown Industrial Districts, Page 7 COMPANY Thos. Y. Pickett & Company, Inc. Attn: Robert T. Lehn 4464 Sigma Road Dallas, Texas 75244 Fax: (972) 387 -4944 CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 Fax: (281) 420 -6586 Each party will have the right to change its business address by giving at least thirty (30) calendar days' written notice to the other party of such change. Notice given by mail shall be deemed given three (3) calendar days after the date of the mailing thereof. XIV. The parties agree that this Agreement shall not be construed in favor of or against any party on the basis that the party did or did not author this Agreement. /:a This Agreement shall not bestow any rights upon any third party, but rather shall bind the Company and the City only. XVI. This Agreement contains all the agreements of the parties relating to the subject matter hereof and is the full and final expression of the agreement between the parties. 0.14 LTA The Company shall not sell, assign or transfer any of its rights or obligations under this contract in whole or in part without prior written consent of the City. Appraisal Agreement for Baytown Industrial Districts, Page 8 0 XvIII. 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 to exercise any right or remedy occurring as a result of any future default or failure of performance. I:i►.� This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas and the City, regardless of the place of its execution or performance. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. M All parties agree that should any provision of this Agreement be determined to be invalid or enforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. The officers executing this Agreement on behalf of the parties hereby confirm that such officers have full authority to execute this Agreement and to bind the party he represents. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies, each of which shall be deemed to be an original, but all of which shall constitute but one and the same Agreement on the — day of , 2003, the date of the execution by the City Manager of the City of Baytown. AApgraisal Agreement for Baytown Industrial Districts, Page 9 CITY OF BAYTOWN, TEXAS LM GARY JACKSON, City Manager 0 ATTEST: • GARY W. SMITH, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney ATTEST: Secretary Printed Name FAKaren\FileslTax12003 ContracATYPickett2003.doc Appraisal Agreement for Baytown Industrial Districts, Page 10 THOS. Y. PICKETT & COMPANY, INC. e ROBERT T. LEHN, Vice President ORDINANCE NO. 9550 ® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, DECLARING THE UNOPPOSED CANDIDATE FOR OFFICE OF COUNCIL MEMBER, DISTRICT ONE ELECTED; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, the City of Baytown is a political subdivision in which write -in votes may be counted only for names appearing on a list of write -in candidates; and WHEREAS, Council Members of the City Council are elected from single - member districts; and WHEREAS, on February 13, 2003, the City Council of the City of Baytown ordered the regular municipal election of the City of Baytown to be held between the hours of seven o'clock a.m. and seven o'clock p.m. on the 3`d day of May, 2003, in the City of Baytown, Texas, for the purpose of electing the following members of the City Council: Council Member from District No. One; Council Member from District No. Two; and Council Member from District No. Three; and WHEREAS, the candidate whose name is to appear on the ballot for Council District No. One is unopposed; and WHEREAS, no proposition is to appear on the ballot of the regular municipal election scheduled to be held on the 3`d day of May, 2003; and WHEREAS, after the filing deadlines for placement on the ballot and list of write -in candidates, the City Clerk certified to the City Council in writing that the candidate whose name is to appear on the ballot for Council District No. 1 is unopposed for election to office; and WHEREAS, the City Council of the City of Baytown desires to take action on such certification; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the facts and matters set forth in the recitals of this Ordinance are hereby found to be true and correct. Section 2: That the City Council of the City of Baytown hereby declares the unopposed candidate whose name was to appear on the ballot for Council District No. One elected to the office of Council Member, District One. ® Section 3: That the regular municipal election to be held for the purposes of electing a Council Member from District One is hereby cancelled. Section 4: That the City Cleric is hereby ordered to post a copy of this ordinance on election day at each polling place in Council District No. One that would have been used in the regular municipal election. Section 5: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown, Texas. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown on this the 10th day of April, 2003. ATTEST: i� CT Y Si1,HTH, City Clerk APPROVED AS TO FORM: ACIO RAMIREZ, SR ity Attorney 0 1—AKaren\Fi1es \City Council\ Ordinances \RenteriaElected2Offce.doc 2 PETE C. ALPARO, Mayor ORDINANCE NO. 9549 ® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, APPROVING THE PURCHASE AND SALE AGREEMENT WITH DEGUSSA ENGINEERED CARBONS, LP, FOR THE PURCHASE OF 47.6077 ACRES FOR THE PROPOSED NORTHEAST DISTRICT WASTEWATER TREATMENT PLANT; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. 0 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section l: That the City Council of the City of Baytown, Texas, hereby authorizes a Purchase and Sale Agreement with Degussa Engineered Carbons, LP, for the purchase of 47.6077 acres for the proposed Northeast District Wastewater Treatment Plant. 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 vote of the City Council of the City of Baytown this the I Oh day of April, 2003. PETE C. ALFARO, Ma r ATTEST: GA9Y VV. MITH, City Clerk APPROVED AS TO FORM: NACIO RAMIREZ, S ., ity Attorney FAKaren\Files \City Counci l\ Ordinances\ DegussallortheastWastewaterTreatment .doc • PURCHASE AND SALE AGREEMENT AGREEMENT made this 11`h day of April, 2003, between DEGUSSA ENGINEERED CARBONS, LP., a Delaware limited partnership, qualified to do business in the State of Texas having an address at 1215 Main Street, Port Neches, Texas 77651 (hereinafter called "Seller "), and THE CITY OF BAYTOWN, having an address at 2401 Market Street, Baytown, Texas 77520 (hereinafter called "Purchaser ") FOR AND IN CONSIDERATION OF the mutual covenants and agreements contained herein and intending to be legally bound hereby, Seller agrees to sell to Purchaser and Purchaser agrees to purchase from Seller the Premises subject to the terms and conditions set forth in this Agreement. 1. DEFINITIONS 1.1 Defined terms. The following terms, when used herein with initial capitalization, shall have the meanings specified in this section: 1.1.1 "Closing" shall mean the payment of the Purchase Price (defined below) to Seller and the delivery of the Deed (defined below) to Purchaser in recordable form in accordance with this Agreement. 1.1.2 "Closinz Date" shall mean the date on which the Closing occurs pursuant to this Agreement. 1.1.3 "Deed" is defined in section 4.1 (Deed) below. 1.1.4 "Premises" shall mean all of Seller's right, title and interest in and to that certain parcel of land described in Schedule A annexed hereto and hereby made a part hereof, • • together with Seller's right, title and interest in and to the buildings and improvements now or a hereafter located thereon; all fixtures owned by Seller and situated upon said parcel of land; and all right, title and interest, if any, of Seller in and to (1) any strips, gores, hereditaments and appurtenances in or affecting said parcel of land, and (ii) any highways, streets, roads and avenues abutting said parcel of land to the center lines thereof. 1. 1.5 "Purchase Price" is defined in section 2.1 (Payment of Purchase Price) below. 1.2 Interpretation. Whenever used in this Agreement, the singular number shall include the plural, the plural shall include the singular, and the use of any gender shall include all genders. The words "includes" and "including" shall not be deemed to be limiting, whether or not followed by the words "without limitation" or the like. References to a section shall mean a section of this Agreement unless the context requires otherwise. 2. PURCHASE PRICE 2.1 Payment of Purchase Price. The purchase price for the Premises ( "Purchase Price ") and rights assigned herein shall be ONE HUNDRED THIRTY -FIVE THOUSAND AND NO /100 DOLLARS ($135,000.00) to be paid by Purchaser to Seller, subject to adjustment as expressly set forth herein, at the Closing by wire transfer of immediately available funds denominated in U.S. dollars or by such other means as Seller may direct. 3. TITLE 3.1 Permitted Exceptions. Seller shall deliver title to the Premises subject to the following exceptions (collectively the "Permitted Exceptions "): (i) Building, building line, use and occupancy restrictions; -2- i(ii) Zoning and building laws, rules, regulations, codes and ordinances of the municipal, f local, village, town, city, state and federal governmental authorities having jurisdiction over the Premises; (iii) Any state of facts that an accurate survey of the Premises would disclose; (iv) Any state of facts that an inspection of the Premises would disclose; (v) Rights, if any, heretofore or hereafter acquired by any utility company to lay, construct, install, maintain, repair and operate lines, cables, poles, distribution boxes, cable boxes, meters, conduits, pipes and the like, in, under, over and upon the Premises; (vi) Consents, if any, by Seller, and by any former owner of the Premises, to the erection and maintenance of any structures in, under, over and upon sidewalks, highways, streets, roads and avenues abutting the Premises; (vii) All laws, rules, regulations, codes, ordinances, orders, permits, consent orders, consent agreements and other governmental requirements applicable to the Premises; (viii) Variations between the lines of record title and any fences, retaining walls, hedges and the like; (ix) Those restrictions, covenants, conditions, exceptions, reservations, agreements, easements and other matters affecting title to the Premises that are of record, whether or not more particularly described in Schedule C annexed hereto and hereby made a part hereof, (x) Titles or rights of any party to: tidelands, or lands compromising the shores or beds of navigable or perennial rivers and streams, lakes, bays, gulfs or oceans; lands beyond -3- 0 the line of the harbor or bulkhead lines as established or changed by any government; • statutory water rights including, riparian rights; or to the area extending from the line of mean low tide to the line of vegetation, or the rights of access to that area or easement along and across that area; (xi) Police powers of governmental authorities; and (xii) Rights, titles and interests of others in any highways, streets, roads and avenues abutting, entering onto or running through the Premises. 3.2 Title. Purchaser shall accept such title to the Premises as any title insurance company authorized to do business in the State of Texas is willing to insure, subject only to the title insurance company's normal and standard title exceptions and to the Permitted Exceptions. This provision shall not be deemed to require Purchaser to obtain title insurance with respect to the Premises. 3.3 Franchise Taxes. Unpaid franchise taxes of any corporation in the chain of title to the Premises shall not be deemed an objection to title thereto if, at the Closing, Seller deposits with the title insurance company insuring Purchaser's title such sum as may be required by such company to affirmatively insure that such taxes will not be collected by recourse to the Premises. 4. FURTHER AGREEMENTS OF SELLER AND PURCHASER 4.1 Deed. Seller shall convey the Premises to Purchaser by a special warranty deed (the "Deed "), which Deed shall contain a restrictive covenant that shall restrict the Purchasers' use of the Premises to a wastewater treatment facility or for other municipal purposes and which Deed shall also contain a restrictive covenant that requires any subsequent purchaser of the Premises to assume the Purchaser's covenants set forth in Section 5 hereof. Seller shall deliver, or cause to be delivered, 0 • the Deed to Purchaser at the Closing. A copy of such Deed is attached hereto as Schedule B and • incorporated herein for all intents and purposes. 4.2 Transfer Taxes and Other Expenses. Seller shall pay or cause to be paid (a) all real estate transfer taxes due with respect to the conveyance of the Premises in accordance with Section 8.1 of this Agreement and (b) the legal fees and other expenses incurred by Seller with respect to the transaction contemplated by this Agreement (whether incurred prior to, on or after the Closing Date). Purchaser shall pay or cause to be paid (a) all real estate transfer taxes due with respect to the conveyance of the Premises in accordance with Section 8.1 of this Agreement, (b) all title examination, title insurance, survey, inspection and examination with respect to the Premises, if any, (c) all fees with respect to the recordation and filing of the Deed and (d) the legal fees and other expenses incurred by Purchaser with respect to the transaction contemplated by this Agreement (whether incurred prior to, on or after the Closing Date). Each party hereto shall execute any returns, reports, affidavits or other tax forms required for the recordation and filing of the Deed. 4.3 Authority. Seller and Purchaser each covenants, represents and warrants that (a) it has all of the power and authority necessary to execute this Agreement and to perform all of the actions contemplated by this Agreement, and (b) such execution and performance has been authorized by all necessary resolutions and votes. 4.4 Consents. Seller and Purchaser each covenants, represents and warrants that it will diligently seek all governmental and other consents, approvals, orders and authorizations necessary or appropriate for the consummation of the transaction contemplated by this Agreement. 4.5 Tax Matters. After Closing, the parties agree to amend the Industrial District Agreement among the parties dated October 24, 1996, to reflect the sale of the Premises to Purchaser. Purchaser -5- • further agrees that any payments due after the Closing Date will be prorated in accordance with • Section 8.1. Commencing in 2004, real property covered under the Industrial District Agreement shall be based on an assessment of such property without the Premises. Purchaser, to the extent necessary, shall adjust in such agreement Seller's tax parcels to reflect the sale of the Premises hereunder. Purchaser further agrees to hold the Seller harmless from any rollback or additional taxes that Purchaser may be liable for after the Closing due to a change in the use of the Premises. This paragraph shall survive the Closing. 4.6 Delivery of Possession. Upon Purchaser's satisfaction of all of the obligations to be performed by it at or prior to the Closing pursuant to, and in accordance with, this Agreement, Seller shall deliver exclusive possession of the Premises to Purchaser at the Closing free of tenancies or other occupancies by parties claiming a tenancy or other right of occupancy by or through a written agreement with Seller. 4.7 Reconveyance. In the event that the Purchaser elects not to proceed with the construction of its proposed wastewater treatment facility on the Premises by December 31, 2020, then Purchaser agrees to reconvey the Premises to Seller upon Seller's return of the Purchase Price. This paragraph 4.7 shall survive the Closing. 4.8 Assignment of Rights. Seller represents and warrants that Seller has the right to cross the fee strips of land owned by third parties, which divides the Premises and that Seller has the right to assign such rights. As such, Seller hereby grants to Purchaser all of its rights and authority to cross the fee strips of land owned by third parties and shall execute all documents deemed necessary by the Purchaser to transfer and assign these rights. Should Seller be unable or otherwise fail to assign such rights in a manner necessary for the Purchaser to use the Premises for its intended use as IM 0 enumerated above on or before the Closing Date, the Purchaser shall have the absolute right to terminate this Agreement without any further liability or obligation hereunder. 5. ENVIRONMENTAL PROVISIONS 5.1 Contingency. This entire Agreement is expressly contingent upon and subject to the approval of the City Manager of the City of Baytown of an environmental site assessment ( "ESA ") of the Premises. Approval of the City Manager shall not be unreasonably withheld. Purchaser shall cause to be performed a Phase I ESA within 90 days after the effective date of this Agreement. Should the City Manager determine that based upon such Phase I ESA, a Phase II ESA is necessary, Purchaser shall cause the Phase II ESA to be performed within 120 days after the effective date of this Agreement. Should the ESA not be approved by the City Manager within 90 days after the effective date of this Agreement if only a Phase I ESA was performed or within 120 days after the effective date of this Agreement if a Phase II ESA was performed, the Purchaser shall have the absolute right to terminate this Agreement without any further liability or obligation hereunder. Should Purchaser fail to complete the assessment within the 90 -day or 120 -day period prescribed above or not obtain the approval of the City Manager within the applicable time period, Seller, in it sole discretion, may terminate the agreement, without any further liability or obligation to Purchaser. 5.2 No warranties. Notwithstanding anything to the contrary contained in this Agreement, it is understood and agreed that with respect to the physical and environmental condition of the Premises, the Premises is being sold and conveyed "As Is," "Where Is" and "With All Faults" and subject to any Environmental Condition (as such term is defined below) that may exist, provided that Seller discloses prior to closing without any representation or warranty Environmental Conditions known to Seller to exist on the Premises. Purchaser hereby expressly acknowledges and agrees that 0 (i) Purchaser has thoroughly inspected and examined the Premises to the extent deemed necessary by Purchaser in order to enable Purchaser to evaluate the purchase of the Premises, and (ii) Purchaser is relying upon not only such inspections, examination, and evaluation of the Premises by Purchaser but also on representations made by Seller of Environmental Conditions known to Seller in purchasing the Premises on an "As Is," "Where Is" and "With All Faults" basis without representations, warranties or covenants, express or implied, of any kind or nature. 5.3 Post-Closing Release. Purchaser hereby assumes the risk that Environmental Conditions may exist on the Premises and hereby releases Seller, its predecessors, successors and assigns from any and all damages, losses, costs, claims, actions, proceedings, obligations, fines, expenses or liabilities (whether absolute, accrued, conditional or otherwise), including, but not limited to, out -of- pocket expenses and reasonable attorneys' and accountants' fees and expenses which might arise out of or in connection with the physical or Environmental Condition of the Premises. As used herein, the term "Environmental Condition" shall mean any condition, fact, event or circumstance in any way related to the presence of chemicals, contaminants or pollutants of any description on or near the Premises, or on, under or upon to the soil, ground water, surface water of the Premises which could or does result in any Losses, including, without limitation, any such condition resulting from the past, present or future operations conducted on the Premises. 5.4 Waiver of Claims. Purchaser acknowledges that it is familiar with the operations and emissions from the Seller's carbon black facility that is adjacent to the Premises and hereby agrees to release and waive any claim against Seller, its successors and assigns, that may arise in the future as a result of the migration of permitted plant emissions from such facility, as it may be expanded or changed from time to time, onto the Premises. • • 5.5 Survival. This paragraph 5 shall survive the closing of this Agreement and shall be • binding upon the parties in the event of a conveyance of the Premises to Purchaser under this contract. 6. BROKERS 6.1 Broker's Fees. Seller and Purchaser each covenants, represents and warrants that it has not dealt with a broker or finder in connection with this transaction. Neither party will be liable to the other for any and all losses, damages, suits, actions, proceedings, liens, judgments, costs, expenses (including reasonable attorneys' fees), penalties, orders, obligations, indebtedness and liabilities (absolute or contingent) that the other party sustains, incurs or is exposed to by reason of any claim, for a broker's, finder's or similar fee or commission with respect to this transaction. This paragraph shall survive the Closing. 7. CLOSING 7.1. Closin . The Closing shall take place at the offices of Purchaser on or about Septemberl0, 2003 at 10:30 AM or at such other location, date and time as Seller and Purchaser may agree in writing. 8. ADJUSTMENTS 8.1 Adjustments. Real estate taxes and any assessments shall be apportioned as of the day before the Closing. 8.2 Survival. Any errors or omissions in computing apportionments at the Closing shall be corrected. This paragraph shall survive the Closing. -9- • 9. NOTICE 9.1 Notices. Any notice, report or demand required, permitted or desired to be given under this Agreement, shall be in writing and shall be deemed to have been sufficiently given, delivered or served for all purposes (a) five (5) days after the same has been mailed by postage prepaid, registered or certified mail, return receipt requested, or (b) upon receipt, if the same has been duly deposited, postage prepaid, for delivery the next business day with Federal Express or another reputable, overnight courier service providing proof of delivery, in each case addressed to the respective parties as follows: If to SELLER: Mr. James Hickey Degussa Engineered Carbons, LP 379 Interpace Parkway P.O. Box 677 Parsippany, NJ 07054 -0677 With a copy, which shall not constitute notice, to: Degussa Corporation Legal Department 379 Interpace Parkway P.O. Box 677 Parsippany, NJ 07054 -0677 If to PURCHASER: Mr. Gary Jackson City of Baytown 2401 Market Street, Baytown, Texas 77520 With a copy, which shall not constitute notice, to: Mr. Ignacio Ramirez, Sr. City of Baytown P.O. Box 424 Baytown, Texas 77022 -10- ® By written notice to the other party, a party may designate a new address to which notices, �J reports or demands to it shall thereafter be given, delivered or served. 10. FAILURE TO CONVEY 10.1 Failure to Convey. In the event Seller is unable to convey the Premises to Purchaser (or to cause the same to be conveyed to Purchaser) in accordance with the terms of this Agreement, or if any representation or warranty of Seller herein is inaccurate or untrue and same is discovered prior to the Closing, or if Seller is unable to perform the covenants herein to be performed by Seller, or if any conditions to be satisfied hereunder by Seller are not satisfied, then Purchaser shall have, along with all other available remedies, the option of either (a) terminating this Agreement, in which event neither party shall have any further rights or obligations hereunder, and Purchaser shall be deemed to have waived any claim,. at law or in equity, either against Seller or against any person, known or unknown, disclosed or undisclosed, or (b) accepting such title as Seller shall be able to convey, with an equitable abatement or reduction of the Purchase Price. 11. TERMINATION OF AGREEMENT 11.1 Termination by Purchaser. In the event this Agreement is terminated by Purchaser pursuant to any right specifically granted to it under the terms of this Agreement (and not as a result of Purchaser's default hereunder), Purchaser shall have no rights or remedies against Seller whatsoever, and, except as otherwise expressly provided in this Agreement, this Agreement shall be deemed null and void and no party hereto shall have any obligations to or rights against the other hereunder. Notwithstanding anything to the contrary contained in this Agreement, Seller, its successors, officers, directors, employees, agents and assigns, shall not have any personal liability -11- • hereunder, and Purchaser hereby releases the aforesaid persons and entities from all claims, at law or in equity, arising out of or relating to this Agreement or the Premises (including, without limitation, any Environmental Condition), or arising out of or relating to any breach of any covenant, warranty or representation contained in this Agreement. 12. RIGHTS OF FIRST REFUSAL 12.1 Processed Water. Purchaser hereby grants Seller the right of first refusal with respect to the purchase of up to one million gallons per day of the water discharged from the wastewater treatment plant ( "Processed Water ") that Purchaser proposes to construct on the Premises. Until Seller has contracted to obtain one million gallons per day of Processed Water from the Purchaser, before accepting any bona fide offer for Processed Water, Purchaser shall present such offer to Seller in writing. Seller shall have 45 days from receipt of such offer to notify Purchaser in writing whether it will offer to purchase Processed Water on the same terms and conditions set forth in the Offer. Purchaser agrees to accept such an offer from the Seller and sell Processed Water to Seller on such terms and conditions as set forth in the original offer. 12.2 Premises. Purchaser hereby grants Seller the right of first refusal with respect to the purchase of the Premises, in the event that the Purchaser elects to sell the Premises at any time after it commences operation of a wastewater treatment facility. Before accepting any bona fide offer for the Premises, Purchaser shall present such bona fide offer to Seller in writing. Seller shall have 45 days from receipt of such offer to notify Purchaser in writing whether it will offer to purchase Premises on the same terms and conditions set forth in the original offer. Purchaser agrees to accept such an offer from Seller and will sell the Premises on such terms and conditions as set forth in the original offer. 0 -12- 0 12.3 Survival. This paragraph 12 shall survive the Closing. 13. MISCELLANEOUS 13.1 Waivers. A waiver of any tern or condition of this Agreement must be in writing and signed by the party against whom such waiver is sought to be enforced. No waiver of any breach hereunder shall be deemed a waiver of any other breach hereunder (including, without limitation, any subsequent breach hereunder). 13.2 Amendments. This Agreement may not be altered, amended, changed, waived, terminated or modified in any respect or particular unless the alteration, amendment, change, waiver, termination or modification is in writing and signed by the party against whom it is sought to be enforced. 13.3 Governing Law. This Agreement shall be governed by, and interpreted and enforced in accordance with, the law of the State of Texas, Harris County, exclusive of its choice of law rules. 13.4 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and to their respective heirs, executors, administrators, successors and assigns. Purchaser may not assign this Agreement, any right to any payments made hereunder, any right to be named as transferee in the Deed contemplated by this Agreement or any other rights or obligations under this Agreement without Seller's prior written consent, which consent may be withheld by Seller in its sole discretion. 13.5 Entire Agreement. All understandings and agreements heretofore made between the parties hereto are merged in this Agreement which alone fully and completely expresses their agreement, and the same is entered into after full investigation, neither party relying upon any statement or representation made by the other not embodied in this Agreement. This Agreement -13- 0 shall be given a fair and reasonable construction in accordance with the intentions of the parties hereto, and without regard to, or the aid of, canons requiring construction against the grantor, Seller or the party that drafted the Agreement. 13.6 Seller's Obligations. The acceptance of the Deed to the Premises by Purchaser shall be deemed to be a full performance and discharge of every agreement and obligation on the part of Seller to be performed pursuant to the provisions of this Agreement except those, if any, that survive the Closing. 13.7 Effectiveness of Agreement. Submission by Seller of this Agreement for execution by Purchaser shall neither confer any rights nor impose any obligations on either party hereto unless and until both Seller and Purchaser shall have executed this Agreement and duplicate originals thereof shall have been delivered to Seller and Purchaser. 13.8 No Representations or Warranties. Purchaser expressly acknowledges that, except as may be otherwise expressly set forth in this Agreement, neither Seller nor any party acting on Seller's behalf has made or has been authorized to make any covenants, representations, warranties or statements with respect to the subject matter of this Agreement or has held out any inducements to Purchaser to execute this Agreement. 13.9 Headings. The headings in this Agreement are included for convenience of reference only, shall not constitute a part of this Agreement for any other purpose and shall not be used as an aid in construing any of the terms, conditions or other provisions of this Agreement. 13.10 Counterparts. This Agreement maybe executed in several counterparts which, when taken together, shall constitute one and the same instrument. -14- MJ `/ 1 ® IN WITNESS WIHEREOF, the parties hereto have duly executed this Agreement the day and !� year first above written. A By._ N Ti Date ATTEST: SELLER: DEGUSSA i By: Name- -� c Date: PURCHASER: CITY OF BAYTOWN By Name: Title: Date: By-, Name: Title: Date: F;\K&enlFks\C'n'w 'Wastcwt ' Plant\p=h&%eSal'Ag ccrnmtFinIM0203Qm -15- t a--,_ N LP 000 12l ,LN3WINVdau lv9al vssnoaQ ME L08 TOZ XVJ 6Z - ET , \0IQ EO /L0 1b0 E00 A 5M LO$ IN 0i :Ii (NOW f N -CO -HY ami,t/alva Xa • Schedule A - Premises t A. i 06112/01 12:12 PM METES AND BOUNDS DESCRIPTION Description of 44.6151 acres of land out of a called 215.4321 acre tract conveyed by deed dated July 6, 1995 from J.M. Huber Corporation to Engineered Carbons, Inc. as recorded under Harris County Clerks File Number 8470540, and being situated in the WM. Bloodgood League, Abstract Number 4, Harris County, Texas; (note: bearings are based on the west line of said tract 3, and tract 4, of said 215.431 acres) COMMENCING at a 518 inch iron rod with cap found at the intersection of the north right -of -way line of Needle Point Road (Based on a 60 foot width) with the southeasterly line of the Southern Pacific Railroad (Volume 525, Page 236 Harris County Deed Records) (100' right -of -way); THENCE South 280 05' 00" West, passing at a distance of 75.47 feet the most northerly northwest corner of said 215.4321 acres and being in the south line of said Needle Point Road, and continuing along the southeasterly line of the Southern Pacific Railroad (Volume 390, Page 431 Harris County Deed Records) (100' right -of -way), for a total distance of 1,358.89 feet to a 518 inch iron rod with cap set for the northeast corner and PLACE OF BEGINNING of the herein described tract; THENCE South 090 32' 50" East, for a distance of 2,679.03 feet to a point for corner on the top bank of Cedar Bayou; THENCE along the meanders of Cedar Bayou, the following calls; North 76° 21'28" West, for a distance of 147.14 feet to a point, North 790 55' 54" West, for a distance of 53.51 feet to a point, North 62° 31' 42" West, for a distance of 130.76 feet to a point, North 83° 27' 28" West, for a distance of 61.60 feet to a point, North 75° 32' 07" West, for a distance of 73.80 feet to a point, North 830 33' 42" West, for a distance of 53.59 feet to a point, North 790 48' 19" West, for a distance of 55.82 feet to a point, North 760 08'43" West, for a distance of 90.05 feet to a point. North 890 03'43" West, for a distance of 61.07 feet to a point, North 850 03' 31" West, for a distance of 31.27 feet to a point, North 85" 55' 54" West, for a distance of 103.16 feet to a point, South 75° 54'31" West, for a distance of 37.77 feet to a point, South 650 13' 57" West, for a distance of 55.26 feet to a point, South 470 43' 32" West, for a distance of 47.12 feet to a point, South 460 40'29" West, for a distance of 61.72 feet to a point, South 211 27' 43" West, for a distance of 38.35 feet to a point. South 450 34' 36" West, for a distance of 49.80 feet to a point, South 53° 09' 13" West, for a distance of 10.12 feet to a point, South 280 00' 16" West, for a distance of 39.23 feet to a point, South 32° 48' 21" West, for a distance of 39.50 feet to a point in the west line of said 215.4321 acres; THENCE North 09° 32' 50" West, along the west line of said 215.4321 acres, passing at a • distance of 70.45 feet, a 518 inch iron rod found for reference and continuing in all for a total distance of 1146.66 feet to the a 518 inch iron rod with cap found for the most westerly northwest corner of said 215.4351 acres, same being in the southeasterly line of a 100 foot Southern Pacific Railroad fee as recorded under Volume 390, Page 431 of the Deed Records of Harris County; Creued by scat tame Z:%DmALegs1s%9906S%4C61S1 ACRES.doc 1 0! 2 ' 1 4 06112101 12:12 PM 1 n the northwester) line of said 215.4321 acres together THENCE North 28 05' 00" East, along y with the southeasterly line of said Southern Pacific Railroad fee, for a distance of 1,795.05 feet to the PLACE OF BEGINNING of herein described tract of land and containing within these calls 44.6151 acres or 1,943,434 square feet of land; WITNESS MY HAND AND SEAL THIS THE 12th DAY OF JUN-E, 2001 OF.T1� ..••SCOT LOWE••••• V, {', t• Q+ •.o, ss�Q Scot Low Regist ed Professional Land Surveyor Texa,f Registration No. 5007 Note: Description prepared in conjunction with 99065.DWG — dated July 26, 1999. Revised June 12, 2001. U Created by Sea ).awe 2.\Doc��E.egatls199065ua 61 S 1 ACRES -doc 2 oft 07/25M 1:41 PM ® METES AND BOUNDS DESCRIPTION 60 FOOT RIGHT -OF -WAY Description of a 60 foot wide right -of -way from Needlepoint Road to a 50 foot wide Houston Lighting and Power Fee Strip as recorded under Volume 3527, Page 733 of the Deed Records of Harris County Texas. Said 60 foot wide right -of -way being - situated in a called 43.1651 acres (Tract 4) as conveyed by deed dated July 6, 1995 from J.M. Huber Corporation to Engineered Carbons, Inc. as recorded under Harris County Clerks File Number R470540 and being situated in the WM. Bloodgood League, Abstract Number 4, Hams County, Texas; (note: bearings are based on the west line of said 43.1651 acres) BEGINNING at a 518 inch iron rod found in the southerly right -of -way line of Needle Point Road (Based on a 60 foot width) and marking the northwest corner of a said 43.1651 acres; THENCE North 80° 39' 44" East, along the southerly right -of -way line of said Needle Point Road, for a distance of 60.00 feet to a 518 inch iron rod set for comer; THENCE South 090 32' 50" East, for a distance of 2,133.65 feet to a 518 inch iron rod set in the northwesterly line of said 50 foot wide Houston Lighting and Power Fee Strip; THENCE South 280 05' 00" W, along the northwesterly line of said 50' wide Houston Lighting and Power Fee Strip, for a distance of 98.26 feet to a 5/8 inch iron rod with cap found marking the most southerly corner of said 43.1651 acres; THENCE North 090 32' 50" West, along the westerly line of said 43.1651 acres, for a distance of 2,211.08 feet (called 2,211.68 feet) to the PLACE OF BEGINNING of herein described tract of land and containing within these calls 2.9926 acres or 130,360 square feet of land. WITNESS MY HAND AND SEAL THIS THE 25rd DAY OF SEPTEMBER, 1999 Scot Loyd /1 Regist ed Professional Land Surveyor Texas Registration No. 5007 rip-�' 0 F ST SCOT LO ►A'E >~. ..........................� 5007 Gwad by Rau ie Hutiwn 2;1pouU.egab19906S1E0' Eawn itdoe 16r ON KI Ail, vj wit 0� 0 7� 441 ,14 1 fig] W!!R ,011 ff "m LMIO A r10=4 w SUEZ LO- S300 03M1 aim]] -3-3 ;33�bo 'o,vwo.WO3 , lar. .'r :WL-w3 57 YT 09--OCE & L-rmi a2T" • • Schedule B - Deed r1 U SPECIAL WARRANTY DEED STATE OF TEXAS § COUNTY OF HARRIS § Grantor, DEGUSSA ENGINEERED CARBONS, LP, a Delaware limited partnership, qualified to do business in the State of Texas and having an address of 1215 Main Street, Port Neches, Texas 77651, for ONE HUNDRED THIRTY -FIVE THOUSAND AND NO /100 DOLLARS ($135,000.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, GRANTS AND CONVEYS to the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers County, Texas, and having an address of 2401 Market Street, Baytown, TX 77520, as Grantee, that certain tract or parcel of real property located in Harris County, Texas, described in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes (the "Premises "). IT IS EXPRESSLY UNDERSTOOD AND AGREED that this conveyance shall be effective for only so long as the property described above is used as a wastewater t.reatrnent facility or use for other municipal purposes. If the property ceases to be used for a wastewater treati:nent facility or for other murUcipal purposes, all rights, title, and interest conveyed by this instrument shall automatically revert to and vest in Grantor, Grantor's heirs, successors, and assigns, without the necessity of any further act on the part of or on behalf of the Grantor, it being the intent of Grantor to convey a determinable estate to the Grantee. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT this conveyance is also subject to the following restrictions and covenants, which shall be binding upon any subsequent purchaser of the Premises: 1. The Premises is being sold and conveyed "As Is," "Where Is" and "With All Faults." 2. Grantee assumes the risk that environmental conditions may exist on the Premises and hereby releases Grantor, its predecessors, successors and assigns from any and all damages, losses, costs, claims, actions, proceedings, obligations, fines, expenses or liabilities (whether absolute, accrued, conditional or otherwise), including, but not limited to, out -of- pocket expenses and reasonable attorneys' and accountants' fees and expenses which might arise out of or in connection with Special Warranty Deed, Page 1 the physical or environmental condition of the Premises. As used herein, the term "environmental condition" shall mean any condition, fact, event or circumstance in any way related to the presence of chemicals, contaminants or pollutants of any description on or near the Premises, or on, under or upon to the soil, ground water, surface water of the Premises which could or does result in any losses, including, without limitation, any such condition resulting from the past, present or future operations conducted on the Premises. 3. Grantee acknowledges that it is familiar with the operations and emissions from the Grantor's carbon black facility that is adjacent to the Premises and hereby agrees to release and waive any claim against Grantor, its successors and assigns, that may arise in the future as a result of the migration of permitted plant emissions from such facility, as it may be expanded or changed from time to time, onto the Premises. TO HAVE AND TO HOLD the property described, together with all the rights and appurtenances lawfully accompanying it, by the Grantee and the Grantee's successors and assigns forever. Grantor binds itself and its successors and assigns to warrant and forever defend the property against every person lawfully claiming or to claim all or any part of the property by, through, or under the Grantor but not otherwise; provided, however, this conveyance is made subject to all easements, exceptions, covenants, conditions, restrictions, reservations, and rights appearing of record. DEGUSSA ENGINEERED CARBONS, LP BY: Signature Printed Name Title STATE OF § COUNTY OF § Before me, the undersigned notary public, on this day personally appeared , as the of DEGUSSA ENGINEERED CARBONS, LP, the owner of the above - referenced property, Special Warranty Deed, Page 2 ® known to me; proved to me on the oath of ; or proved to me through his current {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person) (Check one) • to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this _ day of , 2003. GRANTORS' ADDRESS: DEGUSSA ENGINEERED CARBONS, LP ATTN: James Hickey 379 Interpace Parkway P.O. Box 677 Parsippany, NJ 07054 -0677 RETURN TO GRANTEE: CITY OF BAYTOWN OFFICE OF THE CLERK P.O. BOX 424 BAYTOWN, TEXAS 77522 -0424 F: \Karcn\Files\Contracts \Wastewater Plant\Special Warranty Deed Final.doc Special Warran Deed, Page 3 Notary Public in and for the State of Texas My commission expires: • None Identified • Schedule C - Matters Affecting Title ORDINANCE NO. 9548 • AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, ACCEPTING THE BID OF BAYTOWN FAMILY YMCA FOR THE ANNUAL LIFEGUARD SERVICES CONTRACT AND AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN, THE SUM OF SIXTY THOUSAND SEVEN HUNDRED SIX AND 20/100 DOLLARS ($60,706.20); MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, the City Council of the City of Baytown did authorize the Purchasing Department for the City of Baytown to advertise for bids for the Annual Lifeguard Services Contract to be received April 3, 2003; and WHEREAS, notice to bidders as to the time and place, when and where the contract would be let was published pursuant to the provisions of Chapter 252 of the Texas Local Government Code; and WHEREAS, all bids were opened and publicly read at City Hall at 2:00 p.m., Thursday, April 3, 2003, as per published notice to bidders; NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown hereby accepts the bid of Baytown Family YMCA for the Annual Lifeguard Services Contract for the sum of SIXTY THOUSAND SEVEN HUNDRED SIX AND 20/100 DOLLARS ($60,706.20) and authorizes payment thereof. Section 2: That pursuant to the provisions of Texas Local Government Code Annotated § 252.048, the City Manager is hereby granted general authority to approve any change order involving a decrease or an increase in costs of TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or less, subject to the provision that the original contract price may not be increased by more than twenty-five percent (25 %) or decreased by more than twenty-five percent (25 %) without the consent of the contractor to such decrease. Section 3: 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 10"' day of April, 2003. C. `K' PETE C. ALFARO, Mayor A-I C GA Y W. SM.fia3, City Clerk APPROVED AS TO FORM: 0 — NACIO RAMIREZ, SIPCity Attorney FaleaneneWy Documents\ Council\ 02 -031 April\ AwardAnnualLifeguardServicesContract .doc ORDINANCE NO. 9547 ® ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE ISSUANCE OF CITY OF BAYTOWN, TEXAS, WATERWORKS AND SEWER SYSTEM REVENUE IMPROVEMENT AND REFUNDING BONDS, SERIES 2003; AUTHORIZING THE REDEMPTION PRIOR TO MATURITY OF CERTAIN OUTSTANDING OBLIGATIONS; AUTHORIZING THE ADVANCE REFUNDING OF CERTAIN OUTSTANDING OBLIGATIONS AND THE EXECUTION AND DELIVERY OF AN ESCROW AGREEMENT; AND THE SUBSCRIPTION FOR AND PURCHASE OF CERTAIN ESCROWED SECURITIES; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, the City Council of the City of Baytown, Texas (the "City ") has heretofore issued the bonds described in Exhibit A attached hereto (the "Refunded Bonds "); and WHEREAS, the City desires to refund the Refunded Bonds in advance of their maturities; and WHEREAS, Chapter 1207, Texas Government Code, as amended, authorizes the City to issue refunding bonds payable from taxes, without an election, for the purpose of refunding the Refunded Bonds in advance of their maturities, and to accomplish such refunding by depositing directly with a paying agent for the Refunded Bonds (or other qualified escrow agent), the proceeds of such refunding bonds, together with other available funds, in an amount sufficient to provide for the payment or redemption of the Refunded Bonds, and provides that such deposit shall constitute the making of firm banking and financial arrangements for the discharge and final payment or redemption of the Refunded Bonds; and WHEREAS, the City desires to authorize the execution of an escrow agreement and provide for the deposit of proceeds of the refunding bonds herein authorized, together with other funds, to pay the Refunded Bonds; and WHEREAS, upon the issuance of the refunding bonds herein authorized and the deposit of funds referred to above, the Refunded Bonds shall no longer be regarded as being outstanding, except for the purpose of being paid pursuant to such deposit, and the pledges, liens, trusts and all other covenants, provisions, terms and conditions of the ordinances authorizing the issuance of the Refunded Bonds shall be, with respect to the Refunded Bonds, discharged, terminated and defeased; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: • ARTICLE I RECITALS: CONSIDERATION It is hereby found and determined that the matters and facts set out in the preamble to this Ordinance are true and correct. It is hereby found and determined that the refunding contemplated in this Ordinance will benefit the City by providing a total savings of $ and a present value savings of $ in the debt service payable by the City, that such benefit is sufficient consideration for the refunding of the Refunded Bonds, and that the issuance of the refunding bonds is in the best interests of the City. ARTICLE U DEFIhIITIONS AND INTERPRETATIONS Section 2.1: Definitions. Throughout this Ordinance the following terms and expressions as used herein shall have the meanings set forth below: "Acts" mean Chapters 1207 and 1502, Texas Government Code, as amended. "Additional Parity Bonds" mean the additional parity revenue bonds permitted to be issued by the City pursuant to Article VI of this Ordinance. "Blanket Issuer Letter of Representations" means the Blanket Issuer Letter of Representations between the City, the Registrar and DTC. "Bond" or 'Bonds" mean the City of Baytown, Texas, Waterworks and Sewer System Revenue Improvement and Refunding Bonds, Series 2003, authorized by this Ordinance. "Bond Purchase Agreement" means the agreement between the City and the Underwriters described in Section 22 of this Ordinance. "Business Day" means any day which is not a Saturday, Sunday, a day on which banking institutions in Dallas, Texas, are authorized by law or executive order to close, or a legal holiday. "City" means the City of Baytown, Texas, and where appropriate, the City Council thereof and any successor to the City as owner of the System. "Closing Date" means the date of the initial delivery of and payment for the Bonds. "Code" means the Internal Revenue Code of 1986, as amended. ® "Comptroller" means the Comptroller of Public Accounts of the State of Texas. -2- "DTC" means The Depository Trust Company of New York, New York, or any successor securities depository. "DTC Participant" means brokers and dealers, banks, trust companies, clearing corporations and certain other organizations on whose behalf DTC was created to-hold securities to facilitate the clearance and settlement of securities transactions among DTC Participants. "Escrow Agent" means JPMorgan Chase Bank. "Escrow Agreement" means the agreement between the City and the Escrow Agent relating to the escrow of funds to pay the Refunded Bonds. "Gross Revenues" means all revenues, income and receipts of every nature derived or received by the City from the operation and ownership of the System and the interest income from the investment or deposit of money in the Revenue Fund, the Interest and Sinking Fund, and the Reserve Fund. "Initial Bond" means the Initial Bond authorized by Section 3.4(d). "Interest Payment Date ", when used in connection with any Bond, means August 1, 2003, and each February 1 and August 1 thereafter until maturity or prior redemption. "MSRB" means the Municipal Securities Rulemaking Board. "Net Revenues" means all Gross Revenues remaining after deducting the Maintenance and Operation Expenses. "NRMSIR" means each person whom the SEC or its staff has determined to be a nationally recognized municipal securities information repository within the meaning of the Rule from time to time. "Ordinance" means this bond ordinance and all amendments hereof and supplements hereto. "Outstanding Bonds" means the City's Waterworks and Sewer System Revenue Bonds, Series 1991, Waterworks and Sewer System Revenue Bonds, Series 1992, Waterworks and Sewer System Revenue Bonds, Series 1993, Waterworks and Sewer System Revenue Bonds, Series 1994, Waterworks and Sewer System Revenue Bonds, Series 1995, and Waterworks and Sewer System Revenue Refunding Bonds, Series 1998. "Owner" means any person who shall be the registered owner of any outstanding Bond. "Parity Bonds" mean the Bonds, the Outstanding Bonds, and each series of Additional Parity Bonds from time to time hereafter issued, but only to the extent such Parity Bonds remain outstanding. -3- s "Record Date" means the fifteenth day of the month next preceding each Interest Payment Date. "Refunded Bonds" mean those bonds described on Exhibit A attached hereto. "Register" means the books of registration kept by the Registrar in which are maintained the names and addresses of, and the principal amounts of Bonds registered to, each Owner. "Registrar" means JPMorgan Chase Bank, and its successors in that capacity. "Report" means the report of Grant Thornton LLP, verifying the accuracy of certain mathematical computations relating to the Bonds and the Refunded Bonds. "Reserve Fund Requirement" means, as of any particular date, the average annual principal and interest requirements on all Parity Bonds then outstanding. "Rule" means SEC Rule 15c2 -12, as amended from time to time. "SEC" means the United States Securities and Exchange Commission. "SID" means the Municipal Advisory Council of Texas, which has been designated by the State of Texas as, and determined by the SEC staff to be, a state information depository within the meaning of the Rule. "System" means all properties, facilities, improvements, equipment, interests, and rights constituting the waterworks and sanitary sewer system of the City, including all future extensions, replacements, betterments, additions, and improvements to the System. "Underwriters" m ean M organ S tanley, P rudential S ecurities Incorporated, CIBC World Markets Corp. and Legg Mason Wood Walker, Inc. Section 2.2: Interpretations. All terms defined herein and all pronouns used in this Ordinance shall be deemed to apply equally to singular and plural and to all genders. The titles and headings of the articles and sections of this Ordinance have been inserted for convenience of reference only and are not to be considered a part hereof and shall not in any way modify or restrict any of the terms or provisions hereof. This Ordinance and all the terms and provisions hereof shall be liberally construed to effectuate the purposes set forth herein and to sustain the validity of the Bonds and the validity of the lien on and pledge of the Net Revenues to secure the payment of the Bonds, the Outstanding Bonds, and the Additional Parity Bonds. ME ® ARTICLE III TERMS OF THE BONDS Section 3.1: Authorization and Authorized Amount. The Bonds shall be issued, pursuant to the Act, in fully registered form in the aggregate principal amount of $ for the purpose of financing improvements to the System and for the purpose of refunding the Refunded Bonds. Section 3.2: Designation, Date, and Interest Payment Dates, The Bonds shall be designated as "City of Baytown, Texas, Waterworks and Sewer System Revenue Improvement and Refunding Bonds, Series 2003," and shall be dated May 1, 2003. The Bonds shall bear interest from the later of May 1, 2003, or the most recent Interest Payment Date to which interest has been paid or duly provided for, calculated on the basis of a 360 day year of twelve 30 day months, payable on August 1, 2003, and semiannually thereafter on February 1 and August 1 of each year until maturity or prior redemption. Section 3.3: Initial Bonds; Numbers and Denomination. The Bonds shall be issued in the principal amounts and bearing interest at the rates set forth in the following schedule, and maybe transferred and exchanged as set out in this Ordinance. The Bonds shall mature on February 1 in each of the years and in the amounts set out in such schedule. The Initial Bond shall be numbered 11 and all other Bonds shall be numbered in sequence beginning with R -1. Bonds delivered on transfer of or in exchange for other Bonds shall be numbered in order of their authentication by the Registrar, shall be in the denomination of $5,000 or integral multiples thereof, and shall mature on the same date and bear interest at the same rate as the Bond or Bonds in lieu of which they are delivered. -5- Principal Interest Year Amount Rate 2004 $ % 2005 % 2006 % 2007 % 2008 % 2009 % 2010 % 2011 % 2012 % 2013 % 2014 % 2015 % 2016 % 2017 % 2018 % 2019 % 2020 % -5- 2021 % 2022 % 2023 % • Section 3.4: Execution and Registration of Bonds. (a) The Bonds shall be signed on behalf of the City by the Mayor and countersigned by the City Clerk, by their manual, lithographed, or facsimile signatures, and the official seal of the City shall be impressed or placed in facsimile thereon. Such facsimile signatures on the Bonds shall have the same effect as if each of the Bonds had been signed manually and in person by each of said officers, and such facsimile seal on the Bonds shall have the same effect as if the official seal of the City had been manually impressed upon each of the Bonds. (b) If any officer of the City whose manual or facsimile signature shall appear on the Bonds shall cease to be such officer before the authentication of such Bonds or before the delivery of such Bonds, such manual or facsimile signature shall nevertheless be valid and sufficient for all purposes as if such officer had remained in such office. (c) Except as provided below, no Bond shall be valid or obligatory for any purpose or be entitled to any security or benefit of this Ordinance unless and until there appears thereon the Registrar's Authentication Certificate substantially in the form provided herein, duly authenticated by manual execution by an officer or duly authorized signatory of the Registrar. In lieu of the executed Registrar's Authentication Certificate described above, the Initial Bond delivered at the Closing Date shall have attached hereto the Comptroller's Registration Certificate substantially in the form provided herein, manually executed by the Comptroller of Public Accounts of the State of Texas, or by his duly authorized agent, which certificate shall be evidence that the Initial Bond has been duly approved by the Attorney General of the State of Texas and that it is a valid and binding obligation of the City, and has been registered by the Comptroller of Public Accounts of the State of Texas. (d) On the Closing Date, the Initial Bond, being a single bond representing the entire principal amount of the Bonds, payable in stated installments to the Underwriters or its designee, executed by manual or facsimile signature of the Mayor and City Clerk of the City, approved by the Attorney General, and registered and manually signed by the Comptroller of Public Accounts, shall be delivered to the Underwriters or its designee. Upon payment for the Initial Bond, the Registrar shall cancel the Initial Bond and deliver definitive bonds to DTC. Section 3.5: Payment of Principal and Interest. The Registrar is hereby appointed as the paying agent and registrar for the Bonds. The principal of the Bonds shall be payable, without exchange or collection charges, in any coin or currency of the United States of America which on the date of payment is legal tender for the payment of debts due the United States of America, upon their presentation and surrender as they respectively become due and payable at the principal payment office of the Registrar in Dallas, Texas. The interest on each Bond shall be payable on each interest Payment Date, by check mailed by the Registrar on or before the Interest Payment Date to the Owner of record as of the Record Date, to the address of such Owner as shown on the Register. !S1 ® If the date for payment of the principal of or interest on any Bond is not a Business Day, then the date for such payment shall be the next succeeding Business Day with the same force and effect as if made on the date payment was originally due. Section 3.6: Successor Registrars. The City covenants that at all times while any Bonds are outstanding it will provide a commercial bank or trust company, organized under the laws of the United States or any state, authorized under such laws to exercise trust powers, and subject to supervision or examination by federal or state authority, and authorized to serve as and perform the duties and services of Registrar for the Bonds. The City reserves the right to change the Registrar for the Bonds on not less than 30 days written notice to the Registrar, so long as any such notice is effective not less than 60 days prior to the next succeeding principal or interest payment date on the Bonds. Promptly upon the appointment of any successor Registrar, the previous Registrar shall deliver the Register or copies thereof to the new Registrar, and the new Registrar shall notify each Owner, by United States mail, first class postage prepaid, of such change and of the address of the new Registrar. Each Registrar hereunder, by acting in that capacity, shall be deemed to have agreed to the provisions of this Section. Section 3.7: Special Record Date. If interest on any Bond is not paid on any Interest Payment Date and continues unpaid for thirty (30) days thereafter, the Registrar shall establish a new record date for the payment of such interest, to be known as a Special Record Date. The Registrar shall establish a Special Record Date when funds to make such interest payment are received from or on behalf of the City. Such Special Record Date shall be fifteen (15) days prior to the date fixed for payment of such past due interest, and notice of the date of payment and the Special Record Date shall be sent by United States mail, first class, postage prepaid, not later than five (5) days prior to the Special Record Date, to each affected Owner of record as of the close of business on the day prior to the mailing of such notice. Section 3.8: Ownership; Unclaimed Principal and Interest. The City, the Registrar and any other person may treat the person in whose name any Bond is registered as the absolute owner of such Bond for the purpose of making and receiving payment of the principal of or interest on such Bond, and for all other purposes, whether or not such Bond is overdue, and neither the City nor the Registrar shall be bound by any notice or knowledge to the contrary. All payments made to the person deemed to be the Owner of any Bond in accordance with this Section shall be valid and effectual and shall discharge the liability of the City and the Registrar upon such Bond to the extent of the sums paid. Amounts h eld b y t he Registrar w hick r epresent p rincipal o f and interest on the Bonds remaining unclaimed by the Owner after the expiration of three years from the date such amounts have become due and payable shall be reported and disposed of by the Registrar in accordance with the applicable provisions of Texas law including, to the extent applicable, Title 6 of the Texas Property Code, as amended. Section 3.9: Book -Entry System. (a) The Initial Bond shall be registered in the name of Morgan Stanley. Except as provided in Section 3.10 hereof, all other Bonds shall be registered in the name of Cede & Co., as nominee of DTC. -7- (b) With respect to Bonds registered in the name of Cede & Co., as nominee of DTC, the City and the Registrar shall have no responsibility or obligation to any DTC Participant or to any person on behalf of whom such DTC Participant holds an interest in the Bonds, except as provided in this Ordinance. Without limiting the immediately preceding sentence, the City and the Registrar shall have no responsibility or obligation with respect to (1) the accuracy of the records of DTC, Cede & Co. or any DTC Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any DTC Participant or any other person, other than an Owner, as shown on the Register, of any notice with respect to the Bonds, including any notice of redemption, or (iii) the payment to any DTC Participant or any other person, other than an Owner, as shown on the Register, of any amount with respect to principal of, premium, if any, or interest on the Bonds. Notwithstanding any other provision of this Ordinance to the contrary, the City and the Registrar shall be entitled to treat and consider the person in whose name each Bond is registered in the Register as the absolute Owner of such Bond for the purpose of payment of principal of and interest on the Bonds, for the purpose of giving notices of redemption and other matters with respect to such Bond, for the purpose of registering transfer with respect to such Bond, and for all other purposes whatsoever. The Registrar shall pay all principal of, premium, if any, and interest on the Bonds only to or upon the order of the respective Owners, as shown in the Register as provided in this Ordinance, or their respective attorneys duly authorized in writing, and all such payments shall be valid and effective to fully satisfy and discharge the City's obligations with respect to payments of principal, premium, if any, and interest on the Bonds to the extent of the sum or sums so paid. No person other than an Owner, as shown in the Register, shall receive a Bond certificate evidencing the obligation of the City to make payments of amounts due pursuant to this Ordinance. Upon delivery by DTC to the Registrar of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede & Co., and subject to the provisions of this Ordinance with respect to interest checks being mailed to the Owner of record as of the Record Date, the phrase "Cede & Co." in this Ordinance shall refer to such new nominee of DTC. Section 3.10: Successor Securities Depository; Transfer Outside Book -Entry Only System. In the event that the City, in its sole discretion, determines that the beneficial owners of the Bonds shall be able to obtain certificated Bonds, or in the event DTC discontinues the services described herein, the City shall (i) appoint a successor securities depository, qualified to act as such under Section 17(a) of the Securities and Exchange Act of 1934, as amended, notify DTC and DTC Participants, as identified by DTC, of the appointment of such successor securities depository and transfer one or more separate Bonds to such successor securities depository or (ii) notify DTC and DTC Participants, as identified by DTC, of the availability through DTC of Bonds and transfer one or more separate Bonds to DTC Participants having Bonds credited to their DTC accounts, as identified by DTC. In such event, the Bonds shall not longer be restricted to being registered in the Register in the name of Cede & Co., as nominee of DTC, but may be registered in the name of the successor securities depository, or its nominee, or in whatever name or names Owners transferring or exchanging Bonds shall designate, in accordance with the provisions of this Ordinance. Section 3.11: Payments to Cede & Co. Notwithstanding any other provision of this Ordinance to the contrary, so long as any Bonds are registered in the name of Cede & Co., as nominee of DTC, all payments with respect to principal of, premium, if any, and interest on such In Bonds, and all notices with respect to such Bonds, shall be made and given, respectively, in the manner provided in the Blanket Letter of Representations. Section 3.12: Registration, Transfer, and Exchange. So long as any Bonds remain outstanding, the Registrar shall keep the Register at its principal payment office in Dallas, Texas, and, subject to such reasonable regulations as it may prescribe, the Registrar shall provide for the registration and transfer of Bonds in accordance with the terms of this Ordinance. Each Bond shall be transferable only upon the presentation and surrender thereof at the principal payment office of the Registrar in Dallas, Texas, duly endorsed for transfer, or accompanied by an assignment duly executed by the registered Owner or his authorized representative in form satisfactory to the Registrar. Upon due presentation of any Bond for transfer, the Registrar shall authenticate and deliver in exchange therefor, within three Business Days after such presentation, a new Bond or Bonds, registered in the name of the transferee or transferees, in authorized denominations and of the same maturity and aggregate principal amount and bearing interest at the same rate as the Bond or Bonds so presented. All Bonds shall be exchangeable upon presentation and surrender thereof at the principal payment office of the Registrar in Dallas, Texas, for a Bond or Bonds of the same maturity and interest r ate a nd i n a ny a uthorized d enomination, i n an aggregate amount equal to the unpaid principal amount of the Bond or Bonds presented for exchange. The Registrar shall be and is hereby authorized to authenticate and deliver exchange Bonds in accordance with the provisions of this Section. Each Bond delivered in accordance with this Section shall be entitled to the benefits and security of this Ordinance to the same extent as the Bond or Bonds in lieu of which such Bond is delivered. The City or the Registrar may require the Owner of any Bond to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with the transfer or exchange of such Bond. Any fee or charge of the Registrar for such transfer or exchange shall be paid by the City. Section 3.13: Mutilated, Lost, or Stolen Bonds. Upon the presentation and surrender to the Registrar of a mutilated Bond, the Registrar shall authenticate and deliver in exchange therefor a replacement Bond of like maturity, interest rate, and principal amount, bearing a number not contemporaneously outstanding. If any Bond is lost, apparently destroyed, or wrongfully taken, the City, pursuant to the applicable laws of the State of Texas and in the absence of notice or knowledge that such Bond has been acquired by a bona fide purchaser, shall authorize and the Registrar shall authenticate and deliver a replacement Bond of like maturity, interest rate and principal amount, bearing a number not contemporaneously outstanding. The City or the Registrar may require the Owner of a mutilated Bond to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith and any other expenses connected therewith, including the fees and expenses of the Registrar. The City or 10 the Registrar may require the Owner of a lost, apparently destroyed or wrongfully taken Bond, before any replacement Bond is issued, to: ISO ® (1) furnish to the City and the Registrar satisfactory evidence of the ownership of and the circumstances of the loss, destruction or theft of such Bond; (2) furnish such security or indemnity as may be required by the Registrar and the City to save them harmless; (3) pay all expenses and charges in connection therewith, including, but not limited to, printing costs, legal fees, fees of the Registrar and any tax or other governmental charge that may be imposed; and (4) meet any other reasonable requirements of the City and the Registrar. If, after the delivery of such replacement Bond, a bona fide purchaser of the original Bond in lieu of which such replacement Bond was issued presents for payment such original Bond, the City and the Registrar shall be entitled to recover such replacement Bond from the person to whom it was delivered or any person taking therefrom, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the City or the Registrar in connection therewith. If any such mutilated, lost, apparently destroyed or wrongfully taken Bond has become or is about to become due and payable, the City in its discretion may, instead of issuing a replacement Bond, authorize the Registrar to pay such Bond. Each replacement Bond delivered in accordance with this Section 3.12 shall be entitled to the benefits and security of this Ordinance to the same extent as the Bond or Bonds in lieu of which such replacement Bond is delivered. Section 3.14: Cancellation of Bonds. All Bonds paid in accordance with this Ordinance, and all Bonds in lieu of which exchange Bonds or replacement Bonds are authenticated and delivered in accordance herewith, shall be cancelled and destroyed upon the making of proper records regarding such payment. The Registrar shall furnish the City with appropriate certificates of destruction of such Bonds. Section 3.15: Optional Redemption. The Bonds are subject to optional redemption as set forth in the Form of Bond in this Ordinance. Principal amounts maybe redeemed only in integral multiples of $5,000. If a Bond subj ect to redemption is in a denomination larger than $5,000, a portion of such Bond may be redeemed, but only in integral multiples of $5,000. Upon surrender of any Bond for redemption in part, the Registrar, in accordance with Section 3.12 hereof, shall authenticate and deliver in exchange therefor a Bond or Bonds of like maturity and interest rate in an aggregate principal amount equal to the unredeemed portion of the Bond so surrendered. -10- Notice of any redemption identifying the Bonds to be redeemed in whole or in part shall be given by the Registrar at least thirty days prior to the date fixed for redemption by sending written notice by first class mail, postage prepaid, to the Owner of each Bond to be redeemed in whole or in part at the address shown on the Register. Such notices shall state the redemption date, the redemption price, the place at which Bonds are to be surrendered for payment and, if less than all Bonds outstanding of a particular maturity are to be redeemed, the numbers of the Bonds or portions thereof of such maturity to be redeemed. Any notice given as provided in this Section shall be conclusively presumed to have been duly given, whether or not the Owner receives such notice. By the date fixed for redemption, due provision shall be made with the Registrar for payment of the redemption price of the Bonds or portions thereof to be redeemed, plus accrued interest to the date fixed for redemption. When Bonds have been called for redemption in whole or in part and due provision has been made to redeem the same as herein provided, the Bonds or portions thereof so redeemed shall no longer be regarded as outstanding except for the purpose of receiving payment solely from the funds so provided for redemption, and the rights of the Owners to collect interest which would otherwise accrue after the redemption date on any Bond or portion thereof called for redemption shall terminate on the date fixed for redemption. ARTICLE IV FORM OF BONDS Section 4.1: Forms. The form of the Bonds, including the form of Registration Certificate of the Comptroller, which shall be attached or affixed to the Bonds initially issued, the form of the Registrar's Authentication Certificate, the form of Assignment, and the form of Statement of Insurance, shall be, respectively, substantially as follows, with such additions, deletions and variations as may be necessary or desirable and not prohibited by this Ordinance -11- • (a) Form of Bond. REGISTERED NUMBER INTEREST RATE: UNITED STATES OF AMERICA STATE OF TEXAS COUNTIES OF HARRIS AND CHAMBERS REGISTERED DENOMINATION CITY OF BAYTOWN, TEXAS WATERWORKS AND SEWER SYSTEM REVENUE fWROVEMENT AND REFUNDING BOND SERIES 2003 MATURITY DATE: ISSUE DATE: May 1, 2003 REGISTERED OWNER: PRINCIPAL AMOUNT: 14191.1m DOLLARS The C ity o f B aytown, T exas ( the "C ity ") p romises t o p ay, but solely from certain Net Revenues, as described herein, to the registered owner identified above, or registered assigns, on the maturity date specified above, upon presentation and surrender of this Bond to JPMorgan Chase Bank (the "Registrar "), at its principal payment office in Dallas, Texas, the principal amount identified above, payable in any coin or currency of the United States of America which on the date of payment is legal tender for the payment of debts due the United States of America, and to pay, solely from such Net Revenues, interest thereon at the rate shown above, calculated on the basis of a 360 day year of twelve 30 day months, from the later of May 1, 2003, or the most recent interest payment date to which interest has been paid or duly provided for. Interest on this Bond is payable by check on August 1 and February 1, beginning on August 1, 2003, mailed to the registered owner of record as of the fifteenth day of the month next preceding each interest payment date. THIS BOND is one of a duly authorized issue of Bonds, aggregating $ (the "Bonds "), issued for the purposes of improving the City's water and sewer system and refunding a portion of the City's outstanding waterworks and sewer system revenue bonds, pursuant to an ordinance adopted by the City Council (the "Ordinance "), which Ordinance is of record in the City's official minutes. THE CITY RESERVES THE RIGHT to redeem Bonds maturing on and after February 1, 2014, prior to their scheduled maturities, in whole or from time to time in part, in integral multiples -12- • of $5,000, on February 1, 2013, or any date thereafter at par plus accrued interest on the principal amounts called for redemption to the date fixed for redemption. Reference is made to the Ordinance for complete details concerning the manner of redeeming the Bonds. NOTICE OF ANY REDEMPTION shall be given at least thirty (30) days prior to the date fixed for redemption by first class mail, addressed to the registered owners of each Bond to be redeemed in whole or in part at the address shown on the books of registration kept by the Registrar. When Bonds or portions thereof have been called for redemption, and due provision has been made to redeem the same, the amounts so redeemed shall be payable solely from the funds provided for redemption, and interest which would otherwise accrue on the amounts called for redemption shall terminate on the date fixed for redemption. THIS BOND AND THE SERIES OF WHICH IT IS A PART are special obligations of the City that, together with the City's outstanding waterworks and sewer system revenue bonds, are payable from and are equally and ratably secured by a first lien on the revenues of the City's waterworks and sewer system remaining after deduction of the operation and maintenance expenses of that system (the "Net Revenues "), as defined and provided in the Ordinance, which Net Revenues are required to be set aside and pledged to the payment of the Bonds, the outstanding bonds, and all additional bonds issued on a parity therewith, in the Interest and Sinking Fund and the Reserve Fund maintained for the payment of all such Bonds, all as more fully described and provided for in the Ordinance. This Bond and the series of which it is a part, together with the interest thereon, are payable solely from such Net Revenues and do not constitute an indebtedness or general obligation of the City. The owner hereof shall never have the right to demand payment of this obligation out of any funds raised or to be raised by taxation. THE CITY HAS RESERVED THE RIGHT to issue additional parity revenue bonds, subject to the restrictions contained in the Ordinance, which may be equally and ratably payable from, and secured by a first lien on and pledge of, the aforesaid Net Revenues in the same manner and to the same extent as this Bond and the series of which it is a part. THIS BOND IS TRANSFERABLE only upon presentation and surrender at the principal payment office of the Registrar in Dallas, Texas, duly endorsed for transfer or accompanied by an assignment duly executed by the registered owner or his authorized representative, subject to the terms and conditions of the Ordinance. THE BOND IS EXCHANGEABLE at the principal payment office of the Registrar in Dallas, Texas, for bonds in the principal amount of $5,000 or any integral multiple thereof, subject to the terms and conditions of the Ordinance. THIS BOND shall not be valid or obligatory for any purpose or be entitled to any benefit under the Ordinance unless this Bond is either (i) registered by the Comptroller of Public Accounts of the State of Texas by registration certificate attached or affixed hereto or (ii) authenticated by the Registrar by due execution of the authentication certificate endorsed hereon. -13- • THE REGISTERED OWNER of this Bond, by acceptance hereof, acknowledges and agrees to be bound by all the terms and conditions of the Ordinance. THE CITY has covenanted in the Ordinance that it will at all times provide a legally qualified registrar for the Bonds and will cause notice of any c hange o f registrar to b e m ailed t o e ach registered owner. IT IS HEREBY DECLARED AND REPRESENTED that this Bond has been duly and validly issued and delivered; that all acts, conditions, and things required or proper to be performed, exist, and be done precedent to or in the issuance and delivery of this Bond have been performed, exist and have been done in accordance with law; that the Bonds do not exceed any statutory limitation; and that provision has been made for the payment of the principal of and interest on this Bond and all of the Bonds by the creation of the aforesaid lien on and pledge of the Net Revenues. IN WITNESS WHEREOF, this Bond has been signed with the manual or facsimile signature of the Mayor and countersigned with the manual or facsimile signature of the City Clerk, and the official seal of the City has been duly impressed, or placed in facsimile, on this Bond. (AUTHENTICATION (SEAL) CITY OF BAYTOWN, TEXAS CERTIFICATE) /� C Mayor City Clerk (b) Form of Registration Certificate. COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO. I hereby certify that this Bond has been examined, certified as to validity, and approved by the Attorney General of the State of Texas, and that this Bond has been registered by the Comptroller of Public Accounts of the State of Texas. WITNESS MY SIGNATURE AND SEAL this (SEAL) • -14- Comptroller of Public Accounts of the State of Texas ® (c) Form of Authentication Certificate. AUTHENTICATION CERTIFICATE It is hereby certified that this Bond has been delivered pursuant to the Bond Ordinance described in the text of this Bond. JPMorgan Chase Bank As Paying Agent/Registrar Authorized Signature Date of Authentication (d) Form of Assignment ASSIGNMENT For value received, the undersigned hereby sells, assigns, and transfers unto (Please print or type name, address, and zip code of Transferee) (Please insert Social Security or Taxpayer Identification Number of Transferee) the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to transfer said Bond on the books kept for registration thereof, with full power of substitution in the premises. DATED: Signature Guaranteed: NOTICE: Signature must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. (e) Form of Statement of Insurance. Registered Owner NOTICE: The signature above must correspond to the name of the registered owner as shown on the face of this Bond in every particular, without any alteration, enlargement or change whatsoever. 9 [TO COME] -15- ® (f) The Initial Bond shall be in the form set forth in paragraphs (a), (b), (d) and (e) of this Section, except for the following alterations: (i) immediately under the name of the Bond, the headings "INTEREST RATE" and "MATURITY DATE" shall both be completed with the words "As Shown Below" and the word "CUSIP" deleted; (ii) in the first paragraph of the Bond, the words "on the maturity date specified above" and "at the rate shown above" shall be deleted and the following shall be inserted at the end of the first sentence "..., with such principal to be paid in installments on February 1 in each of the years and in the principal amounts identified in the following schedule and with such installments bearing interest at the per annum rates set forth in the following schedule: [Information to be inserted from schedule in Section 3.3] (iii) the Initial Bond shall be numbered I -1. Section 4.2: CUSIP Numbers; Bond Insurance. CUSIP Numbers may be printed on the Bonds, but errors or omissions in the printing of such opinion or such numbers shall have no effect on the validity of the Bonds. The purchase of and payment of the premium for municipal bond insurance by the City, in accordance with the terms of a commitment for such insurance presented to and hereby approved by the City Council is hereby authorized. All officials and representatives of the City are authorized and directed to execute such documents and to do any and all things necessary or desirable to obtain such insurance, and the printing on the Bonds of an appropriate legend regarding such insurance is hereby approved. ARTICLE V SECURITY AND SOURCE OF PAYMENT FOR ALL PARITY BONDS Section 5.1: Pledge and Source of Payment. The City hereby covenants and agrees that all Gross Revenues of the System shall be deposited and paid into the special funds heretofore established, and shall be applied in the manner set out herein, to provide for the payment of all Maintenance and Operation Expenses and to provide for the payment of principal, interest and any redemption premium of the Parity Bonds and all expenses of paying same. The Parity Bonds shall constitute special obligations of the City that shall be payable solely from, and shall be equally and ratably secured by a first lien on, the Net Revenues, as collected and received by the City, from the • operation and ownership of the System, which Net Revenues shall, in the manner herein provided, be set aside for and pledged to the payment of the Parity Bonds in the Interest and Sinking Fund and -16- is Reserve Fund as hereinafter provided, and the Parity Bonds shall be in all respects on a parity with and of equal dignity with one another. The owners of the Parity Bonds shall never have the right to demand payment out of any funds raised or to be raised by taxation. Section 5.2: Rates and Charges. So long as any Parity Bonds remain outstanding, the City shall fix, charge and collect rates and charges for the use and services of the System which are calculated to be fully sufficient to produce Net Earnings of the System (as herein defined) in each fiscal year at least equal to 125% of the principal and interest requirements scheduled to occur in such fiscal year on all Parity Bonds then outstanding; but in no event shall Net Revenues ever be less than t he a mount r equired t o m aintain t he I nterest and Sinking Fund and the Reserve Fund as hereinafter provided, and, to the extent that funds for such purpose are not otherwise available, to pay all other outstanding obligations payable from the Net Revenues of the System as and when the same become due. For purposes of this Section, the term "Net Earnings" shall mean all Net Revenues of the System, except that in calculating Net Earnings there shall not be deducted as Maintenance and Operation Expenses any charge, disbursement or expenditure for extensions, repairs or improvements which, under standard accounting practice, constitute a capital expenditure. The City will not grant or permit any free service from the System except for public buildings and institutions operated by the City. Section 5.3: Special Funds. The creation and confirmation of the following special funds in the ordinances authorizing the issuance of the Outstanding Bonds is hereby confirmed, and such funds shall be maintained and accounted for as hereinafter provided, so long as any Parity Bonds remain outstanding: (a) Waterworks and Sewer System Revenue Fund (the "Revenue Fund "); (b) Waterworks and Sewer System Revenue Bonds Interest and Sinking Fund (the "Interest and Sinking Fund "); and (c) Waterworks and Sewer System Revenue Bonds Reserve Fund (the "Reserve Fund "). The Revenue Fund shall be maintained as a separate account on the books of the City. The Interest and Sinking Fund and the Reserve Fund shall be maintained at an official depository bank of the City separate and apart from all other funds and accounts of the City and shall constitute trust funds which shall be held in trust for the benefit of the Owners of the Parity Bonds and the proceeds of which (except for interest income, which shall be transferred to the Revenue Fund) shall be and are hereby pledged to the payment of the Parity Bonds. All of the Funds named above shall be used solely as provided herein so long as any Parity Bonds remain outstanding. -17- Section 5.4: Flow of Funds. All Gross Revenues of the System shall be deposited as collected into the Revenue Fund. Money from time to time on deposit to the credit of the Revenue Fund shall be applied as follows in the following order of priority: (a) First, to pay Maintenance and Operation Expenses; (b) Second, to make all deposits into the Interest and Sinking Fund required by this Ordinance, the ordinances authorizing the issuance of the Outstanding Bonds, and any ordinance authorizing the issuance of Additional Parity Bonds; (c) Third, to make all deposits.into the Reserve Fund required by this Ordinance, the ordinances authorizing the issuance of the Outstanding Bonds, and any ordinance authorizing the issuance of Additional Parity Bonds; (d) Fourth, for any lawful purpose. Whenever the total amounts on deposit to the credit of the Interest and Sinking Fund and the Reserve Fund shall be equivalent to the sum of the aggregate principal amount of all outstanding Parity Bonds plus the aggregate amount of all interest accrued and to accrue thereon, no further payments need be made into the Interest and Sinking Fund or the Reserve Fund. Section 5.5: Interest and Sinking Fund. On or before the last Business Day of each month so long as any Parity Bonds remain outstanding, after making all required payments and provision for payment of Maintenance and Operation Expenses, there shall be transferred into the Interest and Sinking Fund from the Revenue Fund (1) such amounts, in approximately equal monthly installments, as will be sufficient to accumulate the amount required to pay the interest scheduled to become due on the Parity Bonds on the next interest payment date; and (ii) such amounts, in approximately equal monthly installments, as will be sufficient to accumulate the amount required to pay the next maturing principal of the Parity Bonds, including the principal amounts of, and any redemption premium on, any Parity Bonds payable as a result of the exercise or operation of any optional or mandatory redemption provision contained in any ordinance authorizing the issuance of Parity Bonds. Money deposited to the credit of the Interest and Sinking Fund shall be used solely for the purpose of paying principal (at maturity or prior redemption or to purchase Parity Bonds issued as term bonds in the open market to be credited against mandatory redemption requirements), interest and any redemption premium on the Parity Bonds, plus all bank charges and other costs and expenses relating to-such payment. On or before each principal and/or interest payment date on the Parity Bonds, the ffm City shall transfer from the Interest and Sinking Fund to the paying agents an amount equal to the principal, interest and any redemption premium payable on the Parity Bonds on such date, together with an amount equal to all bank charges and other costs and expenses relating to such payment. The paying agents shall destroy all paid Parity Bonds and shall provide the City with an appropriate certificate of destruction. Section 5.6: Reserve Fund. Unless the Reserve Fund is fully funded, on or before the last Business Day of each month so long as any Parity Bonds remain outstanding, after making all required payments and provision for payment of Maintenance and Operation Expenses, and after making the transfers into the Interest and Sinking Fund required in the preceding Section, there shall be transferred into the Reserve Fund from the Revenue Fund an amount at least equal to one - sixtieth (1 /60th) of the average annual principal and interest requirements on the Parity Bonds, so that the Reserve Fund shall contain, in no more than 60 months after the issuance of each such issue of Parity Bonds, money and investments in an aggregate amount at least equal to the average annual principal and interest requirements on all Parity Bonds then outstanding. After such amount has accumulated in the Reserve Fund and so long thereafter as such Fund contains such amount, no further deposits shall be required to be made into the Reserve Fund, and any excess amounts may be transferred to the Revenue Fund. But if and whenever the balance in the Reserve Fund is reduced below such amount, monthly deposits into such Fund shall be resumed and continued in amounts at least equal to one - sixtieth (1 /60th) of the average annual principal and interest requirements on the Parity Bonds until the Reserve Fund has been restored to such amount. The Reserve Fund shall be used to pay the principal of and interest on the Parity Bonds at any time when there is not sufficient money available in the Interest and Sinking Fund for such purpose and it may be used finally to pay and retire the last Parity Bonds to mature or be redeemed. The following provisions shall apply upon final payment or defeasance of all Outstanding Bonds issued prior to 1998: To the extent permitted by law, the City expressly reserves the right at any time to satisfy all or any part of the amounts required to be on deposit in the Reserve Fund (the "Reserve Fund Requirement ") by obtaining for the benefit of the Reserve Fund one or more Reserve Fund Surety Policies (a "Reserve Fund Surety Policy "). In the event the City elects to substitute at any time a Reserve Fund Surety Policy for any funded amounts in the Reserve Fund, it may apply any bond proceeds thereby released, to the greatest extent permitted by law, to any purposes for which the bonds were issued, and if all such purposes have been satisfied, to the payment of debt service on such bonds, and it may apply any other funds thereby released to any of the purposes for which such funds may lawfully be applied including the payment of debt service on the Parity Bonds. A Reserve Fund Surety Policy shall be an insurance policy or other similar guarantee in a principal amount equal to the portion of the Reserve Fund Requirement to be satisfied which is issued by a financial institution or insurance company with a rating for its long term unsecured debt or claims paying ability in the highest letter category by two major municipal securities evaluation sources. The premium for any such policy shall be paid from bond proceeds or other funds of the City lawfully available for such purpose. The City reserves the right to fund any increase in the Reserve Fund ® Requirement caused by the issuance of Additional Parity Bonds by the purchase of a Reserve Fund Surety Policy in the amount of such increase or by making transfers from the Revenue Fund to the -19- Reserve Fund, in approximately equal monthly installments, in amounts sufficient to accumulate the increase in the Reserve Fund Requirement within sixty (60) months of the issuance of such Additional Parity Bonds. If the Reserve Fund contains only cash and the balance in the Reserve Fund is reduced below the Reserve Fund Requirement at any time, the City shall make monthly transfers from the Revenue Fund to the Reserve Fund, in approximately equal monthly installments, in amounts sufficient to restore the balance in the Reserve Fund to the Reserve Fund Requirement within twelve (12) months of the date on which the balance in the Reserve Fund was so reduced. If the Reserve Fund contains a Reserve Fund Surety Policy (and no cash) and a draw is made against such policy, the City shall make monthly transfers from the Revenue Fund, in approximately equal monthly installments, in amounts sufficient to reimburse the amount drawn under such policy within twelve (12) months. If the Reserve Fund contains a combination of cash and a Reserve Fund Surety Policy, and the balance in the Reserve Fund is reduced below the Reserve Fund Requirement by a combination of cash withdrawals and draws against the Reserve Fund Surety Policy, the City shall make monthly transfers from the Revenue Fund, in approximately equal monthly installments, in amounts sufficient to restore the cash balance in the Reserve Fund and reimburse the amount drawn under such policy within twelve (12) months, with reimbursement to be made for all amounts drawn under such policy before any cash deposits are made into the Reserve Fund. Section 5.7: Deficiencies in Funds. If in any month there shall not be deposited into any Fund maintained pursuant to this Article the full amounts required herein, amounts equivalent to such deficiency shall be set apart and paid into such Fund or Funds from the first available and unallocated money in the Revenue Fund, and such payment shall be in addition to the amounts otherwise required to be paid into such Funds during the succeeding month or months. To the extent necessary, the rates and charges for the System shall be increased to make up for any such deficiencies. Section 5.5: Investment of Funds; Transfer of Investment Income. (a) Money in the Revenue Fund, the Interest and Sinking Fund and the Reserve Fund may, at the option of the City, be invested in time deposits or certificates of deposit of commercial banks secured in the manner required by law for public funds and insured by the Federal Deposit Insurance Corporation to the maximum extent permitted by law, or be invested in direct obligations of, or obligations fully guaranteed by, the United States of America; provided that all such deposits and investments shall be made in such manner that the money required to be expended from any Fund will be available at the proper time or times, and provided further that in no event shall such deposits or investments of money in the Reserve Fund mature later than the final maturity date of the Parity Bonds. Any obligation in which money is so invested shall be kept and held in the official depository bank of the City at which the Fund is maintained from which the investment was made. All such investments shall be promptly sold when necessary to prevent any default in connection with the Parity Bonds. (b) All interest and income derived from such deposits and investments shall be transferred or credited as received to the Revenue Fund, and shall constitute Gross Revenues of the System. 0 Section 5.9: Security for Uninvested Funds. So long as any Parity Bonds remain outstanding, all uninvested money on deposit m, or credited to, the Revenue Fund, the Interest and -20- Sinking Fund and the Reserve Fund shall be secured by the pledge of security, as provided by Texas law. Section 5.10: Application of Chanter 1208, Government Code. Chapter 1208, Government Code, applies to the issuance of the Bonds and the pledge of the revenues granted by the City under Section 5.1 of this Ordinance, and such pledge is therefore valid, effective and perfected. If Texas law is amended at any time while the Bonds are outstanding and unpaid such that the pledge of the revenues granted by the City under Section 5.1 of this Ordinance is to be subject to the filing requirements of Chapter 9, Business & Commerce Code, then in order to preserve to the registered owners of the Bonds the perfection of the security interest in said pledge, the City agrees to take such measures as it determines are reasonable and necessary under Texas law to comply with the applicable provisions of Chapter 9, Business & Commerce Code and enable a filing to perfect the security interest in said pledge to occur. ARTICLE VI ADDITIONAL PARITY BONDS Section 6.1.: Additional Parity Bonds. The City reserves the right to issue, for any lawful purpose (including the refunding of any previously issued Parity Bonds or any other bonds or obligations of the City issued in connection with or payable from the revenues of the System), one or more series of Additional Parity Bonds payable from and secured by a first lien on the Net Revenues of the System, on a parity with the Bonds, the Outstanding Bonds, and any previously issued Additional Parity Bonds; provided, however, that no Additional Parity Bonds may be issued unless: (a) The Additional Parity Bonds mature on, and interest is payable on, the same days of the year as the Bonds; (b) The Interest and Sinking Fund and the Reserve Fund each contains the amount of money then required to be on deposit therein; (c) For either the preceding fiscal year or any consecutive 12 -month period out of the 18 month period immediately preceding the month in which the ordinance authorizing such Additional Parity Bonds is adopted (the "Base Period "), either: (1) Net Earnings of the System (as hereinbelow defined) were equal to at least 125% of the average annual principal and interest requirements on all Parity Bonds that will be outstanding after the issuance of the series of Additional Parity Bonds then proposed to be issued, as certified by the City's Assistant City Manager/Finance or by an independent certified public accountant or fine of independent certified public accountants; or -21- ® (2) Net Earnings of the System, as adjusted to give effect to any rate increase for the System that has been in effect for at least 60 days prior to the adoption of the ordinance authorizing the issuance of the series of Additional Parity Bonds then proposed to be issued, to the same extent as if such rate increase had been in effect for the entire Base Period, would have been at least equal to the amount required in paragraph (1) above, as certified by an independent consulting engineer or independent firm of consulting engineers; 17J provided, however, that this requirement shall not apply to the issuance of any series of Additional Parity Bonds for refunding purposes that will have the result of reducing the average annual principal and interest requirements on Parity Bonds; and (d) Provision is made in the ordinance authorizing the Additional Parity Bonds then proposed to be issued for (1) additional payments into the Interest and Sinking Fund sufficient to provide for any increased principal and interest requirements on the Parity Bonds resulting from the issuance of the Additional Parity Bonds and (2) payments into the Reserve Fund so that such Fund will, in not later than 60 months from the date of issuance of such Additional Parity Bonds, contain a balance not less than the average annual principal and interest requirements on all Parity Bonds that will be outstanding after the issuance of such series of Additional Parity Bonds. For purposes of Section 6.1(c), the term "Net Earnings of the System" shall mean all of the Net Revenues of the System, except that in calculating Net Earnings there shall not be deducted as Maintenance and Operation Expenses any charge, disbursement or expenditure for extensions, repairs or improvements which, under standard accounting practice, constitutes a capital expenditure. Section 6.2: Subordinate Lien Bonds. The City reserves the right to issue, for any lawful purpose, bonds, notes or other obligations secured in whole or in part by liens on the Net Revenues that are junior and subordinate to the lien on Net Revenues securing payment of the Parity Bonds. Such subordinate lien obligations may be further secured by any other source of payment lawfully available for such purposes. Section 6.3: Special Project Bonds. The City reserves the right to issue revenue bonds secured by liens on and pledges of revenues and proceeds derived from Special Projects. -22- 0 ARTICLE VII COVENANTS AND PROVISIONS RELATING TO THE SYSTEM Section 7.1: Punctual Payment of Parity Bonds. The City will punctually pay or cause to be paid the interest on and principal of all Parity Bonds according to the terms thereof and will faithfully do and perform, and at all times fully observe, any and all covenants, undertakings, stipulations and provisions contained in this Ordinance and in any ordinance authorizing the issuance of Additional Parity Bonds. Section 7.2: Maintenance of System. So long as any Pari ty Bonds remain outstanding, the City covenants that it will at all times maintain the System, or within the limits of its authority cause the same to be maintained, in good condition and working order and will operate the same, or cause the same to be operated, in an efficient and economical manner at a reasonable cost and in accordance with sound business principles. In operating and maintaining the System, the City will comply with all contractual provisions and agreements entered into by it and with all valid rules, regulations, directions or orders of any governmental, administrative, or judicial body promulgating same, noncompliance with which would materially and adversely affect the operation of the System. Section 73: Sale or Encumbrance of System. So long as any Parity Bonds remain outstanding, the City will not sell, dispose of or, except as permitted in Article VI, further encumber the System; provided, however, that this provision shall not prevent the City from disposing of any portion of the System which is being replaced or is deemed by the City to be obsolete, worn out, surplus or no longer needed for the proper operation of the System. Any agreement pursuant to which the City contracts with a person, corporation, municipal corporation or political subdivision to operate the System or to lease and/or operate all or part of the System shall not be considered as an encumbrance of the System. Section 7.4: Insurance. The City further covenants and agrees that it will keep the System insured with insurers of good standing against risks, accidents or casualties against which and to the extent customarily insured against by political subdivisions of the State of Texas operating similar properties, to the extent that such insurance is available. The cost of all such insurance together with any additional insurance, shall be a part of the Maintenance and Operation Expenses. All net proceeds of such insurance shall be applied to repair or replace the insured property that is damaged or destroyed, or to make other capital improvements to the System, or to redeem Parity Bonds. Section 7.5: Accounts, Records, and Audits. So long as any Parity Bonds remain outstanding, the City covenants and agrees that it will maintain a proper and complete system of records and accounts pertaining to the operation of the System in which full, true and proper entries will be made of all dealings, transactions, business and affairs which in any way affect or pertain to the System or the Gross Revenues or the Net Revenues thereof. The City shall after the close of each of its fiscal years cause an audit report of such records and accounts to be prepared by an • independent certified public accountant or independent firm of certified public accountants. Each year promptly after such audit report is prepared, the City shall furnish a copy thereof without cost to -23- the Municipal Advisory Council of Texas, the major municipal rating agencies and any owners of Parity Bonds who shall request same. All expenses incurred in preparing such audits shall be Maintenance and Operation Expenses. Section 7.6: Competition. To the extent it legally may, the City will not grant any franchise or permit for the acquisition, construction, or operation of any competing facilities which might be used as a substitute for the System and will prohibit the operation of any such competing facilities. Section 7.7: Pledge and Encumbrance of Net Revenues. The City covenants and represents that it has the lawful power to create a lien on and to pledge the Net Revenues to secure the payment of the Parity Bonds and has lawfully exercised such power under the Constitution and laws of the State of Texas. The City further covenants and represents that, other than to the payment of the Parity Bonds, the Net Revenues are not and will not be made subject to any other lien, pledge or encumbrance to secure the payment of any debt or obligation of the City, unless such lien, pledge or encumbrance is junior and subordinate to the lien and pledge securing payment of the Parity Bonds. Section 7.$: Bondowners' Remedies. This Ordinance shall constitute a contract between the City and the Owners of the Parity Bonds from time to time outstanding and this Ordinance shall be and remain irrepealable until the Parity Bonds and the interest thereon shall be fully paid or discharged or provision therefor shall have been made as provided herein. In the event of a default in the payment of the principal of or interest on any of the Parity Bonds or a default in the performance of any duty or covenant provided by law or in this Ordinance, the Owner or Owners of any of the Parity Bonds may pursue all legal remedies afforded by the Constitution and laws of the State of Texas to compel the City to remedy such default and to prevent further default or defaults. Without in any way limiting the generality of the foregoing, it is expressly provided that any Owner of any of the Parity Bonds may at law or in equity, by suit, action, mandamus, or other proceedings, enforce and compel performance of all duties required to be performed by the City under this Ordinance, including the making and collection of reasonable and sufficient rates and charges for the use and services of the System, the deposit of the Gross Revenues into the special funds herein provided, and the application of such Gross Revenues and Net Revenues in the manner required in this Ordinance. Section 7.9: Discharge by Deposit. The City may discharge its obligation to the Owners of any or all of the Parity Bonds to pay principal, interest and redemption premium (if any) thereon in any manner then permitted by law, including by depositing with any paying agent for such Parity Bonds or with the State Treasurer of the State of Texas either: (i) cash in an amount equal to the principal amount and redemption premium, if any, of such Parity Bonds plus interest thereon to the date of maturity or redemption, or (ii) pursuant to an escrow or trust agreement, cash and/or direct obligations of the United States of America, in principal amounts and maturities and bearing interest at rates sufficient to provide for the timely payment of the principal amount and redemption premium, if any, of such Parity Bonds plus interest thereon to the date of maturity or redemption; provided, however, that if any of such Parity Bands are to be redeemed prior to their respective dates of maturity, provision shall have been made for giving notice of redemption as provided in the ® ordinance authorizing such Parity Bonds. Upon such deposit, such Parity Bonds shall no longer be regarded to be outstanding or unpaid. -24- Section 7.10: Paying Agents May Own Parity Bonds. The paying agents for the Parity Bonds, in their individual or any other capacity, may become holders or pledges of the Parity Bonds with the same rights they would have if they were not paying agents. Section 7.11: No Recourse Against City Officials. No recourse shall be had for the payment of principal of or interest on any Parity Bonds or for any claim based thereon or on this Ordinance against any official of the City or any person executing any Parity Bonds. ARTICLE VIII PROVISIONS CONCERNING SALE AND APPLICATION OF PROCEEDS OF BONDS Section 8.1: Sale; Bond Purchase Agreement. The Bonds are hereby sold and shall be delivered to the Underwriters at a price of $ , plus accrued interest to the date of delivery, in accordance with the terms of the Bond Purchase Agreement of even date herewith, presented to and hereby approved by the City Council, which price and terms are hereby found and determined to be the most advantageous reasonably obtainable by the City. The Mayor and other appropriate officials of the City are hereby authorized and directed to execute the Bond Purchase Agreement on behalf of the City, and the Mayor and all other officers, agents and representatives of the City are hereby authorized to do any and all things necessary or desirable to satisfy the conditions set out therein and to provide for the issuance and delivery of the Bonds. Section 8.2: Federal Income Tax Inclusion. (a) General Tax Covenant. The City intends that the interest on the Bonds shall be excludable from gross income for purposes of federal income taxation pursuant to sections 103 and 141 through 150 of the Internal Revenue Code of 1986, as amended (the "Code), and applicable Income Tax Regulations (the "Regulations "). The City covenants and agrees not to take any action, or knowingly omit to take any action within its control that, if aken or omitted, respectively, would cause the interest on the Bonds to be includable in gross income, as defined in section 61 of the Code, for federal income tax purposes. In particular, the City covenants and agrees to comply with each requirement of this Section; provided, however, that the City shall not be required to comply with any particular requirement of this Section if the City has received an opinion of nationally recognized bond counsel ( "Counsel's Opinion ") that such noncompliance will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Bonds or if the City has received a Counsel's Opinion to the effect that compliance with some other requirement set forth in this Section will satisfy the applicable requirements of the Code and Regulations, in which case compliance with such other requirement specified in such Counsel's Opinion shall constitute compliance with the corresponding requirement specified in this Section. (b) No Private Use or Payment and No Private Loan Financing. The City shall certify, ® through an authorized officer, employee or agent that based upon all facts and estimates known or reasonably expected to be in existence on the date the Bonds are delivered, that the proceeds of the -25- Bonds will not be used in a manner that would cause the Bonds to be "private activity bonds" within the meaning of section 141 of the Code and the Regulations promulgated thereunder. Moreover, the City covenants and agrees that it will make such use of the proceeds of the Bonds including interest or other investment income derived from Bond proceeds, regulate the use of property financed, directly or indirectly, with such proceeds, and take such other and further action as may be required so that the Bonds will not be "private activity bonds" within the meaning of section 141 of the Code and the Regulations promulgated thereunder. (c) No Federal Guarantee. The City covenants and agrees not to take any action, or knowingly omit to take any action within its control, that, if taken or omitted, respectively, would cause the Bonds to be "federally guaranteed" within the meaning of section 149(b) of the Code and the applicable Regulations thereunder, except as permitted by section 149(b)(3) of the Code and such Regulations. (d) No Hedge Bonds. The City covenants and agrees that it has not and will not take any action, and has not knowingly omitted and will not knowingly omit to take any action, within its control, that, if taken or omitted, respectively, would cause the Bonds to be "hedge bonds" within the meaning of section 149(8) of the Code and the applicable Regulations thereunder. (e) No Arbitrage. The City shall certify, through an authorized officer, employee or agent that based upon all facts and estimates known or reasonably expected to be in existence on the date the Bonds are delivered, the City will reasonably expect that the proceeds of the Bonds will not be used in a manner that would cause the Bonds to be "arbitrage bonds" within the meaning of section 148(a) of the Code and the applicable Regulations promulgated thereunder. Moreover, the City covenants and agrees that it will make such use of the proceeds of the Bonds including interest or other investment income derived from Bond proceeds, regulate investments of proceeds of the Bonds, and take such other and further action as may be required so that the Bonds will not be "arbitrage bonds" within the meaning of section 148(a) of the Code and the applicable Regulations promulgated thereunder. (f) Arbitrage Rebate. If the City does not qualify for an exception to the requirements of section 148(f) of the Code relating to the required rebate to the United States, the City will take all necessary steps to comply with the requirement that certain amounts earned by the City on the investment of the "gross proceeds" of the Bonds (within the meaning of section 148(f)(6)(B) of the Code), be rebated to the federal government. Specifically, the City will (i) maintain records regarding the investment of the gross proceeds of the Bonds as may be required to calculate the amount earned on the investment of the gross proceeds of the Bonds separately from records of amounts on deposit in the funds and accounts of the City allocable to other bond issues of the City or moneys which do not represent gross proceeds of any bonds of the City, (ii) calculate at such times as are required by applicable Regulations, the amount earned from the investment of the gross proceeds of the Bonds which is required to be rebated to the federal government, and (iii) pay, not less often than every fifth anniversary date of the delivery of the Bonds or on such other dates as may be permitted under applicable Regulations, all amounts required to be rebated to the federal government. Further, the City will not indirectly pay any amount otherwise payable to the federal government pursuant to the foregoing requirements to any person other than the federal government -26- by entering into any investment arrangement with respect to the gross proceeds of the Bonds that might result in a reduction in the amount required to be paid to the federal government because such arrangement results in a smaller profit or a larger loss than would have resulted if the arrangement had been at arm's length and had the yield on the issue not been relevant to either party. (g) Information Reporting. The City covenants and agrees to file or cause to be filed with the Secretary of the Treasury, not later than'the 15th day of the second calendar month after the close of the calendar quarter in which the Bonds are issued, an information statement concerning the Bonds, all under and in accordance with section 149(e) of the Code and the applicable Regulations promulgated thereunder. (h) Continuing Obligation. Notwithstanding any other provision of this Ordinance, the City's obligations under the covenants and provisions of this Section shall survive the defeasance and discharge of the Bonds. Section 8.3: Use of Proceeds. Proceeds from the sale of the Bonds shall, promptly upon receipt by the City, be applied as follows: (a) Accrued interest and any premium on the Bonds shall be deposited into the Interest and Sinking Fund. (b) The balance of the proceeds from the sale of the Bonds shall be applied to establish an escrow fund to refund the Refunded Bonds, as more fully provided below, and, to the extent not otherwise provided for, to pay all expenses arising in connection with the issuance of the Bonds, the establishment of such escrow fund and the refunding of the Refunded Bonds. Any proceeds of the Bonds remaining after making all such deposits and payments shall be deposited into the Interest and Sinking Fund. Section 8.4: Escrow Agreement. The discharge and defeasance of the Refunded Bonds shall be effectuated pursuant to the terms and provisions of an Escrow Agreement to be entered into by and between the City and the Escrow Agent, the terms and provisions of which are hereby approved, subject to such insertions, additions and modifications as shall be necessary (a) to carry out the program designed for the City by the Underwriters, which shall be certified as to mathematical accuracy by Grant Thornton LLP, (b) to minimize the City's costs of refunding, (c) to comply with all applicable laws and regulations relating to the refunding of the Refunded Bonds and (d) to carry out the other intents and purposes of this Ordinance, and the Mayor or Mayor Pro Tem is hereby authorized to execute and deliver such Escrow Agreement on behalf of the City in multiple counterparts and the City Clerk or an Assistant City Clerk is hereby authorized to attest thereto and affix the City's seal. Section 8.5: Redemption of Refunded Bonds. The City hereby authorizes and directs that ® the Refunded Bonds shall be called for redemption prior to maturity in the amounts, on the dates and at the redemption prices set forth in Exhibit A attached hereto, and the Mayor and City Clerk are -27- • hereby authorized and directed to take all necessary and appropriate action to give or cause to be given a notice of redemption to the holders or paying agent/registrars, as appropriate, of such Refunded Bonds, and, if required, to publish such notices, all in the manner required by the ordinances authorizing the issuance of such Refunded Bonds. Section 8.6: Purchase of United States Treasury Obligations. To assure the purchase of the Escrowed Securities referred to in the Escrow Agreement, the Mayor or Mayor Pro Tem, the City Manager, the Director of Finance, and the Escrow Agent are hereby authorized to subscribe for, agree to purchase, and purchase non - callable obligations of the United States of America, in such amounts and maturities and bearing interest at such rates as maybe provided form the Report, and to execute any and all subscriptions, purchase agreements, commitments, letters of authorization and other documents necessary to effectuate the foregoing, and any actions heretofore taken for such purpose are hereby ratified and approved. ARTICLE IX CONTINUING DISCLOSURE Section 9.1: Continuing Disclosure Undertaking. (a) Annual Reports. The City shall provide annually to each NRMSIR and the SID, within six months after the end of each fiscal year, financial information and operating data with respect to the City of the general type included in the final Official Statement authorized by Section 10.1 of this Ordinance under Tables numbered 1 through 1 through 9, and in Appendix B. The information to be provided will include audited financial statements, if the City commissions an audit and it is completed by the required time. If audited financial statements are not available by the required time, the City will provide unaudited financial statements at the required time and audited financial statements when and if they become available. Any financial statements so to be provided shall be prepared in accordance with the accounting principles described in Appendix B to the Official Statement, or such other accounting principles as the City may b e r equired t o e mploy f rom t ime t o t ime p ursuant t o S tate 1 aw o r regulation. If the City changes its fiscal year, it will notify each NRMSIR and the SID of the change (and of the date of the new fiscal year end) prior to the next date by which the City otherwise would be required to provide financial information and operating data pursuant to this Section. The financial information and operating data to be provided pursuant to this Section may be set forth in full in one or more documents or may be included by specific reference to any document (including an official statement or other offering document, if it is available from the MSRB) that theretofore has been provided to each NRMSIR and the SID or filed with the SEC. (b) Material Event Notices. The City shall notify the Sr[) and either each NRMSIR or the MSRB, in a timely manner, of any of the following events with respect to the Bonds, if such event is material within the meaning of the federal securities laws: ME A. Principal and interest payment delinquencies; B. Non - payment related defaults; C. Unscheduled draws on debt service reserves reflecting financial difficulties; D. Unscheduled draws on credit enhancements reflecting financial difficulties; E. Substitution of credit or liquidity providers, or their failure to perform; F. Adverse tax opinions or events affecting the tax - exempt status of the Bonds; G. Modifications to rights of holders of the Bonds; H. Bond calls; I. Defeasances; J. Release, substitution, or sale of property securing repayment of the Bonds; and K. Rating changes. The City shall notify the SID and either each NRMSIR or the MSRB, in a timely manner, of any failure by the City to provide financial information or operating data in accordance with Section 25(a) of this Ordinance by the time required by such Section. (c) Limitations, Disclaimers, and Amendments. The City shall be obligated to observe and perform the covenants specified in this Section for so long as, but only for so long as, the City remains an "obligated person" with respect to the Bonds within the meaning of the Rule, except that the City in any event will give notice of any deposit made in accordance with Texas law that causes Bonds no longer to be outstanding. The provisions of this Section are for the sole benefit of the holders and beneficial owners of the Bonds, and nothing in this Section, express or implied, shall give any benefit or any legal or equitable right, remedy, or claim hereunder to any other person. The City undertakes to provide only the financial information, operating data, financial statements, and notices which it has expressly agreed to provide pursuant to this Section and does not hereby undertake to provide any other information that may be relevant or material to a complete presentation of the City's financial results, condition, or prospects or hereby undertake to update any information provided in accordance with this Section or otherwise, except as expressly provided herein. The City does not make any representation or warranty concerning such information or its usefulness to a decision to invest in or sell Bonds at any future date. UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE CITY, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC PERFORMANCE. -29- • No default by the City in observing or performing its obligations under this Section shall comprise a breach of or default under this Ordinance for purposes of any other provision of this Ordinance. - Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the duties of the City under federal and state securities laws. The provisions of this Section may be amended by the City from time to time to adopt to changed circumstances that arise from a change in legal requirements, change in law, or change in the i dentity, n ature, s tatus o r t ype o f o perations o f t he C ity, but only if (1) the agreement, as amended, would have permitted an underwriter to purchase or sell Bonds in the primary offering of the Bonds in compliance with the Rule, taking into account any amendments or interpretations of the Rule to the date of such amendment, as well as such changed circumstances, and (2) either (a) the holders of a majority in aggregate principal amount of the outstanding Bonds consent to such amendment, or (b) a person unaffiliated with the City (such as nationally recognized bond counsel), determines that the amendment will not materially impair the interests of the holders and beneficial owners of the Bonds. The City may also amend or repeal the provisions of this continuing disclosure agreement if the SEC amends or repeals the applicable provisions of the Rule or a court of final J urisdiction enters judgment hat such provisions of the Rule are invalid, but only if and to the extent that the provisions of this sentence would not prevent an underwriter form lawfully purchasing or selling Bonds in the primary offering of the Bonds. If any such amendment is made, the City will include in its next annual update an explanation in narrative form of the reasons for the change and its impact on the type of operating data or financial information being provided. ARTICLE X MISCELLANEOUS Section 10.1: Official Statement. The City Council ratifies and confirms its prior approval of the form and content of the Preliminary Official Statement prepared in the initial offering and sale of the Bonds and hereby authorizes the preparation of a final Official Statement reflecting the terms of the Bond Purchase Agreement with the Underwriters and other relevant matters. The use of such Official Statement in the reoffering of the Bonds by the Underwriters is hereby approved and authorized. Section 10.2: Paving Agent/Registrar Agreement. The form of agreement setting forth the duties of the Registrar is hereby approved, and the appropriate officials of the City are hereby authorized to execute such agreement for and on behalf of the City. Section 10.3: Further Proceedings. The Mayor, the City Clerk, and other appropriate officials of the City are hereby authorized and directed to do any and all things necessary and/or convenient to carry out the terms of this Ordinance. -30- • Section 10.4: Severability. If any Section, paragraph, clause or provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such Section, paragraph, clause or provision shall not affect any of the remaining provisions of this Ordinance. Section 10.5: Open Meeting. It is hereby officially found and determined that the meeting at which this Ordinance was adopted was open to the public, and that public notice of the time, place and purpose of said meeting was given, all as required by the Texas Open Meetings Act. Section 10.6: No Personal Liability. No recourse shall be had for payment of the principal of or interest on any Bonds or for any claim based thereon, or on this Ordinance, against any official or employee of the City or any person executing any Bonds. Section 10.7: Parties Interested. Nothing in this Ordinance expressed or implied is intended or shall be construed to confer upon, or to give to, any person or entity, other than the City, the Registrar and the Owners of the Bonds, any right, remedy or claim under or by reason of this Ordinance or any covenant, condition or stipulation hereof, and all covenants, stipulations, promises and agreements in this Ordinance shall be for the sole and exclusive benefit of the City, the Registrar and the Owners of the Bonds. Section 10.8: Repealer. All orders, resolutions and ordinances, or parts thereof, inconsistent herewith are hereby repealed to the extent of such inconsistency. Section 11: 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 10`h day of April, 2003. - Z�& d- ez-� PETE C. ALFARO, Mayor ATTEST: GAY W. SN?ITH, City Clerk APPROVED AS TO FORM: NACIO R"IRE OR., City Attorney rF Veanene\My Documents\ Council\ 02 -03\ April\ WaterworksSewcrSystemRefundingBonds2o03 .DOC -31- Published in the Baytown Sun on Wednesday, April 16, 2003 and ORDINANCE NO. 9546 Thursday, April 17, 2003 • AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AMENDING CHAPTER 42 "HEALTH AND SANITATION," ARTICLE II "PUBLIC HEALTH HAZARDS," DIVISION 2 "PUBLIC HEALTH NUISANCES," SECTION 42 -63 "MAINTENANCE OF PRIVATE SEWER LINES," SUBSECTION (B) OF THE CODE OF ORDINANCES, BAYTOWN, TEXAS, TO EXTEND THE PERIOD OF TIME BY WHICH A PRIVATE SEWER LINE MUST BE REPAIRED; PRESCRIBING A MAXIMUM PENALTY OF TWO THOUSAND AND NO 1100 DOLLARS ($2,000.00); PROVIDING A REPEALING CLAUSE; CONTAINING A SAVINGS CLAUSE; AND PROVIDING FOR THE PUBLICATION AND EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That Chapter 42 "Health and Sanitation," Article H "Public Health Hazards," Division 2 "Public Health Nuisances," Section 42 -63 "Maintenance of private sewer lines" Subsection (b) of the Code of Ordinances, City of Baytown, Texas, is hereby amended to read as follows: CHAPTER 42. HEALTH AND SANITATION ARTICLE II. PUBLIC HEALTH HAZARDS Division 2. Public Health Nuisances Sec. 42 -63. Maintenance of private sewer lines. (b) If a property owner's sewer line becomes damaged, defective or deteriorated to the extent that it admits earth or surface or subsurface water or permits the escape of effluents, the owner shall be notified by the city of the line's condition and that repairs must be made within 30 days after receipt of such notice unless a longer period of time not exceeding 180 days is specified in the notice. Notices shall be sent certified mail. However, if a property owner's sewer line becomes damaged, defective or deteriorated to the extent that it constitutes a public nuisance, as defined in section 42 -61 and prompt abatement is a public necessity, this section, along with the notice procedures contained in this division, shall not apply. Section 2: Any person who fails to comply with any provision of this ordinance shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine not exceeding TWO THOUSAND AND NO /100 DOLLARS ($2,000.00). Each act of violation and each day upon which any such violation shall occur shall constitute a separate offense. In addition to the penalty prescribed above, the city may pursue other remedies such as abatement of nuisances, injunctive relief, administrative adjudication and revocation of licenses or permits. • Section 3: All ordinances or parts of ordinances inconsistent with the terms of this ordinance are hereby repealed; provided, however, that such repeal shall be only to the extent of such inconsistency and in all other respects this ordinance shall be cumulative of other ordinances regulating and governing the subject matter covered by this ordinance. Section 4: If any provision, section, exception, subsection, paragraph, sentence, clause or phrase of this ordinance or the application of same to any person or the set of circumstances, shall for any reason be held unconstitutional, void or invalid, such invalidity shall not affect the validity of the remaining provisions of this ordinance or their application to other persons or sets of circumstances and to this end all provisions of this ordinance are declared to be severable. Section 5: This ordinance shall take effect from and after ten (10) days from its passage by the City Council. The City Clerk is hereby directed to give notice hereof by causing the caption of this ordinance to be published in the official newspaper of the City of Baytown at least twice within ten (10) days after passage of this ordinance. INTRODUCED, READ, and PASSED by the affirmative vote of the City Council of the City of Baytown, this the 10th day of April, 2003. PETEC. ALFAOR, Mayor ATTEST: GAY 'M SWTH, City Clerk APPROVED AS TO FORM: eligNACIO RAMIREZ, ., City Attorney 0 rAKaren\riles \Ciry Council\ Ordinances \RepairotPrivateSewer[_ine.doc 2 ORDINANCE NO. 9545 • AN ORDINANCE OF THE.CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AMENDING THE BAYTOWN 2020 COMPREHENSIVE PLAN TO UPDATE THE CITY OF BAYTOWN 2012 AND 2020 LAND USE PLAN MAPS; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, the Baytown 2020 Comprehensive Plan updated of the 1992 Comprehensive Plan that assists City officials, staff and citizens in making sound decisions affecting the future growth and development of the City and the surrounding area; and WHEREAS, in preparing the City's water and wastewater comprehensive master plan and capital recovery fee, it was discovered that the City of Baytown 2012 and 2020 Land Use Plan Maps should be updated; and WHEREAS, such maps were updated to better reflect population growth and future development in the City of Baytown and were proposed as an amendment to the Baytown 2020 Comprehensive Plan; and WHEREAS, the amendment of the Baytown 2020 Comprehensive Plan updating the City of Baytown 2012 and 2020 Land Use Plan Maps has been reviewed by the Baytown Area Community Long -Range Planning Commission and the Planning and Building Services Department; and WHEREAS, on January 28, 2003, the Commission voted unanimously to recommend that the City Council approve the amendment of the Baytown 2020 Comprehensive Plan to update the City of Baytown 2012 and 2020 Land Use Plan Maps; and WHEREAS, on April 10, 2003, a public hearing was conducted at which the public was given the opportunity to give testimony and present written evidence regarding this amendment of the Baytown 2020 Comprehensive Plan; and WHEREAS, the City Council desires to amend Baytown 2020 Comprehensive Plan to update the City of Baytown 2012 and 2020 Land Use Plan Maps to better reflect population growth and future development in the City of Baytown; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: All matters and facts set forth in the recitals above are found to be true, and are approved as the processes and procedures which the City Council of the City of Baytown undertook and completed prior to the adoption of this ordinance. Section 2: That the City Council of the City of Baytown, Texas, hereby amends the 4D Baytown 2020 Comprehensive Plan to update the City of Baytown 2012 and 2020 Land Use Plan Maps. A copy of said maps are attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 3: The comprehensive plan adopted in Section 1 hereof shall serve as a frame of reference for future actions of the City officers, staff, and citizens. This adoption recognizes that each individual action referring to the plan must be a stand -atone action based on all factors known at the time the action is taken. Section 4: 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 loth day of April, 2003. _ x& e. ,01 PETE C. ALFARO, Mayor ATTEST: G�Cl�1'�isi�i�1 LT< .Y STNUTH, City Clerk APPROVED AS TO FORM: ACID RAMIREZ, So., City Attorney 0 FAKaren\FileslCity Council\ Ordinances\ UpdatingComprehensivePlanUndUseMap .doc