Ordinance No. 9,885 AGREEMENT FOR THE EXTENSION OF CERTAIN
CITY WATER LINES TO THE NEW BAWA
DISTRIBUTION LINE
STATE OF TEXAS §
COUNTY OF HARRIS §
This Agreement for the extension of certain City water lines to the new BAWA
distribution line (the "Agreement") is made as of the _�L day of j� t,,�W y, _ , 2004, by
and between the CITY OF BAYTOWN, a municipal corporation located in Harris and
Chambers Counties, Texas, (the "City") and 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, located in Harris County,
Texas, (the "BAWA"). For and in consideration of the mutual covenants herein contained, it is
agreed as follows:
Section 1. Description of Program.
The BAWA, with the assistance of City as herein specified, agrees to enter into necessary
agreements for the design, engineering and construction of interconnects, which will be installed
on Garth Road and North Main Street from a twelve-inch line along I-10 (the"Project").
Section 2. Reports.
BAWA shall prepare and submit to the City 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 BAWA pursuant to this contract during the previous year along with a summary of
expenditures for the previous fiscal year.
Section 3. Approvals.
The City understands, hereby directs and authorizes BAWA to approve all plans and
specifications on its behalf for the Project and to make any Project clarifications and/or
modifications as may be necessary as determined by BAWA in its sole discretion.
Agreement for the Extension of Certain Citv
Water Lines to the New BAWA Distribution Line,Page 1
Section 4. Funds to be provided by the City.
For and in consideration of the services to be provided by BAWA in furtherance of this
Agreement, the City shall tender funds to BAWA in an amount not to exceed ONE MILLION
AND N0/100 DOLLARS ($1,000,000.00), based upon the actual cost of construction of the
Project plus the City's proportionate share of the engineering and design costs.
Unless otherwise provided, all payments required to be made herein shall be payable on
or before 30 days after the City receives an invoice therefor from BAWA.
Section 5. 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 BAWA,
unless sooner terminated by either party hereto pursuant to the terms hereof.
Section 6. 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 30`h 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, subject to the refund and payment obligations referenced in Section 8
hereof. This Agreement shall not be subject to termination for convenience.
Section 7. 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. 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.
Agreement for the Extension of Certain City
Water Lines to the New BAWA Distribution Line,Page 2
Section 8. Refund and Payment upon Termination.
Upon termination of this Agreement pursuant to Section 6 hereof due to an uncured
default by BAWA, BAWA hereby agrees to refund all unexpended, unappropriated monies
previously paid by the City to BAWA pursuant to this Agreement. If at the time of termination
the City owes BAWA monies, the City shall remit to BAWA the appropriate amount computed
as of the effective date of the termination.
Upon termination of this Agreement pursuant to Section 6 hereof due to an uncured
default by the City, the City hereby agrees to pay the total amount committed in Section 4 hereof
on or before the effective date of the termination.
Section 9. Parties in Interest.
This contract shall bind and benefit the City and BAWA and shall not bestow any rights
upon any third parties.
Section 10. 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 11. 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 12. 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.
Agreement for the Extension of Certain City_
Water Lines to the New BAWA Distribution Line,Page 3
Section 13. 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:
BAWA
Baytown Area Water Authority
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
Section 14. Audits.
The City and BAWA 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 BAWA shall make available all of its records in
support of the audit.
Section 15. 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 16. 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.
Agreement for the Extension of Certain City
Water Lines to the New BAWA Distribution Line,Page 4
Section 17. 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 18. 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 BAWA.
Section 19. 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 20. 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 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, this ' , ; day of 1 , ,2004.
CITY OF BAYTOWN
CALVIN MUNDINGER, Mayor
ATTEST:
AR W. SMITH, City Clerk
Agreement for the Extension of Certain City
Water Lines to the New BAWA Distribution Line,Page 5
tr/
BAYTOWN AREA WATER AUTHORITY
ROBERT L. GILLETTE,President
ATTEST:
G RYs dd.4. �{
YM. SMITH, Assistant Secretary
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Agreement for the Extension of Certain City
Water Lines to the New BAWA Distribution Line,Page 6