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Ordinance No. 9,747 AGREEMENT FOR FUNDING FOR THE NORTHEAST DISTRICT WASTEWATER TREATMENT PLANT STATE OF TEXAS § COUNTY OF HARRIS § This Agreement for funding for the Northeast District Wastewater Treatment Plant (the "Agreement") is made as of the / ) day of March, 2004, by and between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas, (the "City") and the BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT, created under Chapter 377 of the Texas Local Government Code, as amended, (the "Act") and located in Harris and Chambers Counties, Texas,-(the "District"). For and in consideration of the mutual covenants herein contained, it is agreed as follows: Section 1. Representations and Warranties of District. a) The District is engaged in an on-going effort to provide new resources to plan, acquire, establish, develop, construct and/or renovate one or more development projects beneficial to the District, which includes the incorporated limits of the City lying within Harris County. b) The District covenants that it shall actively work to productively coordinate its activities with the City in an effort to reduce duplication of services. c) The District represents and warrants that it has been properly created and is duly authorized pursuant to the Act to enter into this Agreement. Section 2. Description of Program. The City, with the assistance of the District as herein specified, agrees to construct and administer all contracts incident to the construction of the Northeast District Wastewater Treatment Plant (the "Project"). The City shall with its funds and the funds provided by the District, have the project constructed according to the plans and specifications approved by the City. Section 3. Reports. The City shall prepare and submit to the District within 120 days after the end of each fiscal year during the term of this Agreement a verbal or brief written report describing the services performed by the City pursuant to this contract during the previous year along with a summary of expenditures for the previous fiscal year. Section 4. Approvals. The District understands, hereby directs and authorizes the City to make any Project clarifications and/or modifications as may be necessary as determined by the City in its sole discretion. Agreement for the Construction of the Northeast Wastewater Treatment Plant,Page 1 Section 5. Funds to be provided by the District. For and in consideration of the services to be provided by the City in furtherance of this Agreement, the District shall tender funds to the City in an amount not to exceed TEN MILLION EIGHT HUNDRED THOUSAND AND NO/100 DOLLARS ($10,800,000.00). All payments required to be made herein shall be payable on or before 30 days after the District receives an invoice therefor from the City. Section 6. Term. This Agreement shall be effective for a period commencing on the date first mentioned above, and ending 30 days after final completion and acceptance of the Project by the City, unless sooner terminated by either party hereto pursuant to the terms hereof. Section 7. Termination for Cause. A party may terminate its performance under this contract only upon default by the other party. Default by a party shall occur if the party fails to perform or observe any of the terms and conditions of this Agreement required to be performed or observed by that party. Should such a default occur, the party against whom the default has occurred shall have the right to terminate all or part of its obligations under this contract as of the 30th day following the receipt by the defaulting party of a notice describing such default and intended termination, provided: (1) such termination shall be ineffective if within said 30-day period the defaulting party cures or has commenced the cure of the default, or (2) such termination may be stayed, at the sole option of the party against whom the default has occurred,pending cure of the default. Upon the termination of this Agreement, both parties shall be relieved of their respective obligations herein stated. This Agreement shall not be subject to termination for convenience. Section 8. Force Majeure. Any prevention, delay,nonperformance, or stoppage due to any of the following causes shall excuse nonperformance for the period of any such prevention, delay, nonperformance, or stoppage, except the obligations imposed by this Agreement for the payment of funds allocated for the District's programs. The causes referred to above are strikes, lockouts, labor disputes, failure of power, acts of God, acts of public enemies of this State or of the United States, riots, insurrections, civil commotion, inability to obtain labor or materials or reasonable substitutes for either, governmental restrictions or regulations or controls, casualties or other causes beyond the reasonable control of the party obligated to perform. Section 9. Refund and Payment upon Termination. Upon termination of this Agreement pursuant to Section 7 hereof due to an uncured default by the City, the City hereby agrees to refund all unexpended, unappropriated monies previously paid by the District to the City pursuant to this Agreement. If at the time of termination the District owes the City monies, the District shall remit to the City the appropriate amount computed as of the effective date of the termination. Upon termination of this Agreement pursuant to Section 7 hereof due to an uncured default by the District, the District hereby agrees to pay the total amount committed in Section 5 hereof on or before the effective date of the termination. Agreement thefor Construction of the Northeast Wastewater Treatment Plant,Page 2 Section 10. Parties in Interest. This contract shall bind and benefit the City and the District and shall not bestow any rights upon any third parties. Section 11. Non-waiver.- Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce, by an appropriate remedy, strict compliance with any other obligation hereunder or to exercise any right or remedy occurring as a result of any future default or failure of performance. Section 12. Compliance with Applicable Laws. The parties hereto shall comply with all rules, regulations, and laws of the United States of America, the State of Texas, and all laws, regulations, and ordinances of the City of Baytown as they now exist or may hereafter be enacted or amended. Section 13. Choice of Law; Venue. This contract is subject to and shall be construed in accordance with the laws of the State of Texas, the laws of the federal government of the United States of America and all rules and regulations of any regulatory body or officer having jurisdiction. This contract is performable in Harris County, Texas. Section 14. Notices. All notices required or permitted hereunder shall be in writing and shall be deemed delivered when actually received or, if earlier, on the third day following deposit in a United States Postal Service post office or receptacle with proper postage affixed (certified mail, return receipt requested) addressed to the respective other party at the address described below or at such other address as the receiving party may have theretofore prescribed by notice to the sending party: District Baytown Municipal Development District Attn: President, Board of Directors P.O. Box 424 Baytown, Texas 77522-0424 Fax: (281) 420-6586 City City of Baytown Attn: City Manager P.O. Box 424 Baytown, Texas 77522-0424 Fax: (281)420-6586 Agreement for the Construction of the Northeast Wastewater Treatment Plant,Page 3 Section 15. Audits. The City and the District may, at any reasonable time, conduct or cause to be conducted an audit of the other parties' records and financial transactions. The cost of said audit will be borne by the entity requesting the audit. The City and the District shall make available all of its records in support of the audit. Section 16. Ambiguities. In the event of any ambiguity in any of the terms of this contract, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. Section 17. Captions. The captions of the sections and subsections, if any, of this Agreement are for convenience and ease of reference only and do not define, limit, augment or describe the scope, content or intent of this Agreement or of any part or parts of this Agreement. Section 18. Entire Agreement. 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. Any oral representations or modifications concerning this instrument are of no force or effect excepting a subsequent modification in writing signed by all the parties hereto. Section 19. Assignment or Transfer of Rights or Obligations. The City shall not sell, assign, or transfer any of its rights or obligations under this Agreement in whole or in part without prior written consent of the District. Section 20. Severability. All parties agree that should any provision of this 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. Section 21. Authority. The officers executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he/she represents. IN WITNESS WHEREOF, the parties have made and executed this contract in multiple copies, each of which shall be an original. CITY OF BAYTOWN BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT a-e-/XA-er- GARY JAC S N PETE C. ALFARO City Manag r' President Agreement for the Construction of the Northeast Wastewater Treatment Plant,Page 4 ATTEST: ATTEST: GARY W. SMITH G Y WI)SMITH • City Clerk Assistant Secretary _ APPROVED AS TO FORM: APPROVED AS TO FORM: • h/V NACIO RAMIREZ, S ..0i$ 4(M ^‹ ACIO RAMIREZ, SR. City Attorney General Counsel • F:\ICaren\Files\City Council\Municipal Development DistrielWGREEMENT FOR FUNDING FOR DEBT SERVICE FOR THE NORTHEAST WASTEWATER TREATMENT PLANT.doc Agreement for the Construction of the Northeast Wastewater Treatment Plant,Page 5