Ordinance No. 9,886ORDINANCE NO. 9886
® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO
EXECUTE AND THE CITY CLERK TO ATTEST TO AN INTERLOCAL
AGREEMENT WITH THE BAYTOWN AREA WATER AUTHORITY TO
PROVIDE FUNDING FOR AUDITING SERVICES; 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 and the City Clerk to attest to an Interlocal Agreement
with the Baytown Area Water Authority to provide funding for auditing services. A copy of the
Agreement is attached hereto as 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 23`d day of September, 2004.
CALVIN MUNDINGER, May
ATTEST:
-GARV W. SMITH, City Clerk
APPROVED AS TO FORM:
r4imiUVIAOILOM a •
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• AGREEMENT FOR AUDITING SERVICES
•
STATE OF TEXAS
COUNTY OF HARRIS
This Agreement for the Auditing Services (the "Agreement ") is made as of the day
of Sepiernl�r 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 I. Description of Program.
The City, subject to the terms and conditions herein, agrees to perform or cause to be
performed auditing services as required or requested by the Director of Finance for the fiscal
years ending September 30, 2004, 2005, and 2006 (the "Audit ").
Section 2. Reports.
The City shall submit or cause to be submitted the results of each audit after the end of
each fiscal year during the term of this Agreement.
Section 3. 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, BAWA, subject to the contingency expressed in Section 8 hereof, shall tender funds
to the City of Baytown for the Audit based upon the following schedule of costs:
Year
BAWA Financial -Audit
09130
2004
$ 4,478
2005
$ 4,657
2006
$ 4,843
Total
_ $ 13,978
Agreement for Auditing Services, Page 1
FD;14ll
• Unless otherwise provided, all payments required to be made herein shall be payable on or
before 30 days after BAWA receives an invoice therefor from the City.
•
Section 4. 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 2006 Audit by BAWA,
unless sooner terminated by either party hereto pursuant to the terms hereof, and the Agreement
may be extended under the same terms and conditions upon the election of the parties for a
period of time not to exceed three years after the expiration of the initial term.
Section 5. Termination for Cause.
A party may terminate its performance under this contract only upon default by the other
party. Default by a parry 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: (l) 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 7
hereof. This Agreement shall not be subject to termination for convenience.
Section 6. 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 Auditing Services, Page 2
• Section 7. Refund and Payment upon Termination.
Upon termination of this Agreement pursuant to Section 5 hereof due to an uncured
default by the City, the City hereby agrees to refund all unexpended, unappropriated monies, if
any, previously paid by BAWA to the City pursuant to this Agreement. If at the time of
termination BAWA owes the City monies, BAWA 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 5 hereof due to an uncured
default by BAWA, BAWA hereby agrees to pay the total amount committed in Section 4 hereof
less any amount which the City will not be obligated to pay for BAWA's audit, on or before the
effective date of the termination.
Section 8. Contingency.
It is expressly understood and agreed that this Agreement for fiscal years 2005 and 2006
are contingent upon funds being appropriated by the Board of Directors of the Baytown Area
Water Authority for financial auditing services. Should funds not be appropriated, this
Agreement shall become null and void and both parties shall be relieved of any and all
obligations hereunder without liability to the other party or to any other person or entity.
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.
Agreement for Auditing Services, Page 3
• 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.
•
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 concerning the Audit. 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 parry did or did not author the same.
Agreement for Auditing Services, Page 4
•
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.
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 , 2004.
Agreement for Auditing Services, Page 5
CITY OF BAYTOWN
CALVIN MUNDINGER, Mayor
0 ATTEST:
GARY W. SMITH, City Clerk
BAYTOWN AREA WATER AUTHORITY
-41 1 ems,
ROBERT L. GILLETTE, President
ATTEST:
[c�
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'hp
RY vV. SMITH, Assistant Secretary
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Agreement for Auditing Services, Page 6