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Ordinance No. 11,839ORDINANC]"NO. 11,839 AN ORDINANCE' OF THE CITY COUNCIL oi,"rijE ary OF BAYTOWN, TEXAS, AUTHORIZING) THE CITY MANAGF'lIZTO EXECUTE AND THE: CITY CLERKTO ATTEST TO AN INTER1,0CAL AGRET� MENT WIT FITTIE' BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT FOR , , ADMINIS"I'RA'I"IVf ,' Sl�,RVI('['.S; MAKING OTHER PROVISIONS RELA'11-D THE'RETO; AND PIZOVIDING FORTIll-l' El"FE"CTIVE DATETHEREOF. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 4d BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAY] I OWN, TEXAS: Section 1: '"I'liat the City COLInCil of the City of Baytown, Texas, hereby aUthorizes the City Manager to exeUfte and the City Clerk to attest to an Interlocal Agreement with the Baytown Municipal Development District for administrative services. A copy of said agreement is attached hereto as Exhibit "A,"' and incorporated herein for all intents and pUrposes, Section 2: '1 1 his ordinance shall take effect immediately from and after its passage by the City Council ofthe City of Baytown. INTRODUCt"l-J), Rl--,"A[,) and PASSED by the affirmative vote he City COUneil ofthe anuary, 2011 City of Baytown this the 12"' day of J, �r SJ;Elll-lf I`� 14. DONCARLOS, Mayor 0 f ........ . ... C lerk lz ' em APPROVED ASTO FORM: eM&ACIO RAMIREZ, SR.,&i v -Attorney Exhibit "A" INTERLOCAL AGREEMENT STATE OF TEXAS COUNTY OF HARRIS This Interlocal Agreement ( "Agreement ") made this the _ day of January, 2012, between the City of Baytown, Texas, a home -rule municipal corporation located in Harris and Chambers Counties, Texas (the "City"), and the Baytown Municipal Development District, a political subdivision of the State of Texas and of the City of Baytown, which is located in Harris County, Texas (the "District "). 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, by Subchapter F entitled "Cooperative Purchasing Program" containing Sections 271.101 and 271.102 of the Texas Local Government Code and by Section 377.071 of the Texas Local Government Code, the parties hereto, in consideration of the premises and mutual promises contained herein agree to as follows: Section 1. Representations and Warranties of District. a) The District is engaged in an on -going effort to plan, acquire, establish, develop, construct, or renovate one or more development projects, as defined in Section 377.001 of the Texas Local Government Code, in the District. 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 Services. The City, with the assistance and under the direction of the District as herein specified, agrees to develop, organize and manage the District's projects, including entering into and administering all contracts incident thereto. The District and the City shall cooperate with one another to accomplish the District's goals. Additionally, the City shall be the true and lawful purchasing agent for the District for all of the District's operations and projects. These services shall be provided as and when directed by the District's General Manager and/or the Board of Directors of the District in order for the District to perform acts associated with the full exercise of the District's power. In the provision of purchasing services as contemplated herein, the City shall comply with Chapter 252 of the Texas Local Government Code, when appropriate, and all other applicable laws, governing purchases of the District. The District, by execution of this Agreement, authorizes contracts to be bid and awarded in the name of the District; provided that, this provision shall not be construed so as to violate Chapter 252 of the Texas Local Government Code or any other applicable law. The District expressly agrees that the City, as purchasing agent for the District, shall not assume any responsibility or liability to pay for materials purchased or services performed for the benefit of the District. The District will rely Interlocal Agreement, Page I solely on its own inspections, investigations and due diligence regarding any materials and /or services acquired by the District through the services of the City. The City shall make no representations or warranties expressed or implied with respect to the materials to be purchased or the services to be rendered. Persons performing services on behalf of the District under this Agreement shall be employees of the City, and, therefore, subject to the City's personnel policies and procedures and entitled to the benefits offered by the City to other similarly situated employees, as determined by the City in its sole discretion. As such, the City shall be responsible for the supervision and control of such employees. Section 3. Project 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 Agreement during the previous year along with a summary of expenditures for the previous fiscal year. Section 4. Changes and Clarifications. The City understands and agrees that project clarifications and /or modifications may be made in writing by the District's Board at any time; provided, that such clarification or modification is neither contrary to the purposes expressed in this Agreement nor contrary to an agreement into which the City has already entered in furtherance of its obligations under this Agreement. As soon as reasonably practicable after the receipt of any such clarification or modification, the City will make the necessary changes to comply. Section 5. Funds to be provided by the District. For and in consideration of the services to be provided by the City and the expenses to be incurred by the City in providing such services, the District shall provide the funds to the City for the actual costs of such programs for each year of the Agreement. Expenditures will be budgeted on an annual basis. Unless otherwise provided, all payments required to be made herein shall be payable on or before 30 days after the District receives the sales and use tax levied pursuant to the provisions of Chapter 377 of the Texas Local Government Code from the state comptroller. The City understands and agrees that the District's obligation for payment under this Agreement shall at no time exceed the amount of sales and use tax revenue received by the District. If adequate funds are not received, the District shall have the obligation to pay the revenues actually received and the City shall be obligated to expend only to the extent that such revenues cover the programs enumerated hereinabove. The District's payment required by this article shall be made from current, available revenues. Furthermore, both parties agree that the payment required herein fairly compensates the City for any services required to be performed under this Agreement. Section 6. Term. This Agreement shall be effective for a period of two years commencing on the date first mentioned above and shall be automatically renewed, unless sooner terminated by either party hereto pursuant to the terms hereof. Interlocal Aweement. Page 2 Section 7. Termination for Cause. A party may terminate its performance under this Agreement 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 Agreement 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 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 required of the District herein. 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. Release of Liability. The City hereby releases, relinquishes and discharges the District, its officers, agents, employees, and volunteers 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 in any way connected with this Agreement, except the performance of the District's obligations under Section 5 hereof. The District hereby releases, relinquishes and discharges the City, its officers, agents, employees, and volunteers 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 in any way connected with the services provided by the City in furtherance of this Agreement. Section 10. Parties in Interest. This Agreement 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. Interlocal Aereement. Page 3 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 Agreement 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 Agreement 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, TX 77522 Fax: (281) 420 -6586 CITY City of Baytown Attn: City Manager P. O. Box 424 Baytown, Texas 77522 -0424 Fax: (281) 420 -6586 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 Agreement, 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. Interlocal Agreement. Page 4 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 and effective on the day of January, 2012. CITY OF BAYTOWN BAYTOWN MUNICIPAL ROBERT D. LEIPER City Manager ATTEST: LETICIA BRYSCH City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR. City Attorney DEVELOPMENT DISTRICT STEPHEN H. DONCARLOS President ATTEST: LETICIA BRYSCH Assistant Secretary APPROVED AS TO FORM: IGNACIO RAMIREZ, SR. General Counsel \\Cobfs0111egal\Karen \Files \City Council \Municipal Development District\Contracts\Contracts 2012\Adminstrative Services Contract.doc Interlocal Agreement, Page 5 f INTERLOCAL AGREEMENT STATE OF TEXAS COUNTY OF HARRIS This Interlocal Agreement("Agreement")made this theay of January, 2012, between the City of Baytown, Texas, a home-rule municipal corporation located in Harris and Chambers Counties, Texas (the "City"), and the Baytown Municipal Development District, a political subdivision of the State of Texas and of the City of Baytown, which is located in Harris County, Texas(the "District"). 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, by Subchapter F entitled "Cooperative Purchasing Program" containing Sections 271.101 and 271.102 of the Texas Local Government Code and by Section 377.071 of the Texas Local Government Code, the parties hereto, in consideration of the premises and mutual promises contained herein agree to as follows: Section 1. Representations and Warranties of District. a)The District is engaged in an on-going effort to plan, acquire, establish, develop, construct, or renovate one or more development projects, as defined in Section 377.001 of the Texas Local Government Code, in the District. 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 Services. The City,with the assistance and under the direction of the District as herein specified,agrees to develop, organize and manage the District's projects, including entering into and administering all contracts incident thereto. The District and the City shall cooperate with one another to accomplish the District's goals. Additionally, the City shall be the true and lawful purchasing agent for the District for all of the District's operations and projects. These services shall be provided as and when directed by the District's General Manager and/or the Board of Directors of the District in order for the District to perform acts associated with the full exercise of the District's power. In the provision of purchasing services as contemplated herein, the City shall comply with Chapter 252 of the Texas Local Government Code, when appropriate, and all other applicable laws, governing purchases of the District. The District, by execution of this Agreement, authorizes contracts to be bid and awarded in the name of the District; provided that, this provision shall not be construed so as to violate Chapter 252 of the Texas Local Government Code or any other applicable law. The District expressly agrees that the City, as purchasing agent for the District, shall not assume any responsibility or liability to pay for materials purchased or services performed for the benefit of the District. The District will rely Interlocal Agreement,Page 1 1 solely on its own inspections, investigations and due diligence regarding any materials and/or services acquired by the District through the services of the City. The City shall make no representations or warranties expressed or implied with respect to the materials to be purchased or the services to be rendered. Persons performing services on behalf of the District under this Agreement shall be employees of the City, and, therefore, subject to the City's personnel policies and procedures and entitled to the benefits offered by the City to other similarly situated employees, as determined by the City in its sole discretion. As such, the City shall be responsible for the supervision and control of such employees. Section 3.Project 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 Agreement during the previous year along with a summary of expenditures for the previous fiscal year. Section 4. Changes and Clarifications. The City understands and agrees that project clarifications and/or modifications may be made in writing by the District's Board at any time; provided, that such clarification or modification is neither contrary to the purposes expressed in this Agreement nor contrary to an agreement into which the City has already entered in furtherance of its obligations under this Agreement. As soon as reasonably practicable after the receipt of any such clarification or modification, the City will make the necessary changes to comply. Section 5.Funds to be provided by the District. For and in consideration of the services to be provided by the City and the expenses to be incurred by the City in providing such services,the District shall provide the funds to the City for the actual costs of such programs for each year of the Agreement. Expenditures will be budgeted on an annual basis. Unless otherwise provided, all payments required to be made herein shall be payable on or before 30 days after the District receives the sales and use tax levied pursuant to the provisions of Chapter 377 of the Texas Local Government Code from the state comptroller. The City understands and agrees that the District's obligation for payment under this Agreement shall at no time exceed the amount of sales and use tax revenue received by the District. If adequate funds are not received, the District shall have the obligation to pay the revenues actually received and the City shall be obligated to expend only to the extent that such revenues cover the programs enumerated hereinabove. The District's payment required by this article shall be made from current,available revenues. Furthermore, both parties agree that the payment required herein fairly compensates the City for any services required to be performed under this Agreement. Section 6.Term. This Agreement shall be effective for a period of two years commencing on the date first mentioned above and shall be automatically renewed, unless sooner terminated by either party hereto pursuant to the terms hereof. Interlocal Agreement,Page 2 Section 7.Termination for Cause. A party may terminate its performance under this Agreement 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 Agreement 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 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 required of the District herein. 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. Release of Liability. The City hereby releases, relinquishes and discharges the District, its officers, agents, employees, and volunteers 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 in any way connected with this Agreement, except the performance of the District's obligations under Section 5 hereof. The District hereby releases, relinquishes and discharges the City, its officers, agents, employees, and volunteers 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 in any way connected with the services provided by the City in furtherance of this Agreement. Section 10.Parties in Interest. This Agreement 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. Interlocal Aereement,Page 3 f t 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 Agreement 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 Agreement 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, TX 77522 Fax: (281)420-6586 CITY City of Baytown Attn: City Manager P.O.Box 424 Baytown,Texas 77522-0424 Fax: (281)420-6586 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 Agreement, 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. Interlocal Agreement,Page 4 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 9xecuted this contract in multiple copies,each of which shall be an original and effective on they of January,2012. CITY OF BAYTOWN BAYTOW MUNICIPAL DEVE MENT DISTRICT OBERT D. LEIPER S N H. DONCARLOS City Ma President to AT ATTES S U. o? r ETI LETIC YCI City Cler Assistantjta rif+k,.•`` APPROVED AS TO FORM:APPROVED AS TO FORM: IfMACIO RAMIREZ, SR 471NACIO RAMIREZ, SR. City Attorney General Counsel Cobfs0l\legal\Karen\Files\City CouncilMmicipal Development District\Contracts\Contracts 2012Wdminstrative Services Contract.doc Interlocal Agreement,Page 5