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MDD Resolution No. 104 RESOLUTION NO. 104 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT AUTHORIZING THE GENERAL MANAGER TO EXECUTE AND THE ASSISTANT SECRETARY TO ATTEST TO AN ECONOMIC DEVELOPMENT SPECIAL SERVICES CONTRACT BETWEEN THE BAYTOWN AREA/WEST CHAMBERS COUNTY ECONOMIC DEVELOPMENT FOUNDATION AND THE BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT FOR ECONOMIC DEVELOPMENT SERVICES; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT: Section l: That the Board of Directors of the Baytown Municipal Development District hereby finds that the expenditures authorized herein are for improvements, which satisfy the purposes for which the funds can be expended pursuant to Chapter 377 of the Texas Local Government Code. All required findings pursuant thereto are hereby declared to have been made and adopted as findings of the Board of Directors. Section 2: That the Board of Directors of the Baytown Municipal Development District hereby authorizes the General Manager to execute and the Assistant Secretary to attest to an Economic Development Special Services Contract between the Baytown Area/West Chambers County Economic Development Foundation and the Baytown Municipal Development District for economic development services. A copy of the agreement is attached hereto as Exhibit"A,"and made a part hereof for all intents and purposes. Section 3: This resolution shall take effect immediately from and after its passage by the Board of Directors of the Baytown Municipal Development District. INTRODUCED, READ and PASSED by the affirmative vote the Board of Directors of the Baytown Municipal Development District, this the 61h day of Decemb , 007. S EPHEN H. DONCARLOS, President kWOONY. istant Secretary APPROVED AS TO FORM: (17 ACIO RAM IREZ, SR.,G n al Counsel R.--KArcu Filcs Cit)Council Municipal Dc%clopmcnt 13tsuoci Rmilunoin 21 t7 Miautkr RcsoluuunAppro%cAgrcrntauJflconomic Uc%clopntcniSpccialScr.iccs?OU7.doc ECONOMIC DEVELOPMENT SPECIAL SERVICES CONTRACT STATE OF TEXAS § COUNTY OF HARRIS § THIS CONTRACT is made as of the day of December, 2007, by and between the BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT, a political subdivision of the State of Texas and the City of Baytown, hereinafter called "District," and THE BAYTOWN AREA/WEST CHAMBERS COUNTY ECONOMIC DEVELOPMENT FOUNDATION, hereinafter called "Foundation." WITNESSETH: WHEREAS, the District desires to investigate and undertake ways and means of promoting prosperous development of business, industry and commerce within Baytown, and further desires to promote the location and development of new businesses and industries in Baytown as well as the maintenance and expansion of existing businesses; and WHEREAS, the Foundation was formed for the purposes, among others, of promoting and encouraging, or causing to be promoted and encouraged, the formation of new businesses and the expansion of existing businesses, the relocation of existing businesses, and the general diversification of the economy of and in Baytown and West Chambers County; and WHEREAS, the District desires to contract with the Foundation to provide, or cause to be provided, economic development services herein described in the Baytown area; and WHEREAS, the Foundation is willing, in exchange for the consideration herein provided, to provide, or cause to be provided, the economic development services desired by the District which are intended to expand the tax base and the employment base of Baytown and the surrounding area;and WHEREAS, the formation of new businesses and the expansion of existing businesses in Baytown would benefit the District by the resultant expansion of both the tax base of the District and the employment base; and WHEREAS, the District and the Foundation agree that in order to foster and promote competition, to assure the integrity of the competitive process, and to protect proprietary or innovative business strategies and concepts, information and data developed, generated or received by the Foundation should remain privileged and confidential except as herein provided; NOW THEREFORE, for and in consideration of the premises and mutual covenants herein contained, it is agreed as follows: EI�BTf A Economic Development Special Services Contract,Page 1 Section 1. Representations and Warranties of Foundation. Foundation hereby represents and warrants as follows: a) The Foundation is engaged in an on-going effort to attract new businesses to the Baytown/West Chambers County area and to encourage the expansion of existing businesses in the Baytown/West Chambers County area. b) The Foundation covenants that it shall actively work to productively coordinate its activities with other area economic development organizations in an effort to reduce duplication of services. c) The Foundation represents and warrants that it is a non-profit economic development organization, the principal purpose of which is the promotion of economic development in the Baytown and West Chambers County area. Section 2. Services to be Provided. The Foundation shall provide the following economic development services; provided such services are designed to promote or develop new or expanded business enterprises that create or retain primary jobs: (A) Trade Shows. The Foundation shall participate in trade shows promoting one or more of the following industries: 1. Manufacturing, 2. Retail/Shopping Centers, 3. Plastics, and 4. Warehouse/Distribution Centers. (B) Revolving Loan Program: The Foundation shall allocate the amount specified for the Revolving Loan Program in Section 4 of this Agreement for use as loan proceeds under this program. The Revolving Loan Program includes both the Baytown Revolving Loan Program and the Affordable Housing Development Program. This allocation is in addition to any previous years' allocations. No funds authorized herein shall be used for the administration of this Program. (C) Environmental Strategy. Intermodal Transportation Strategy and Workforce Mobility Strategy. The Foundation shall employ a consultant, who shall be subject to the approval of the District, to assist in developing the Environmental Strategy, the Intermodal Transportation Strategy and the Workforce Mobility Strategy, which the Foundation is required to Economic Development Special Services Contract,Page 2 develop pursuant to its Economic Development Contract with the Baytown Municipal Development District. In this section, the term"primary job"means a job that is: (A) available at a company for which a majority of the products or services of that company are ultimately exported to regional, statewide, national, or international markets infusing new dollars into the local economy; and (B) included in one of the following sectors of the North American Industry Classification System(NAICS): NAICS Sector# Description III Crop Production 112 Animal Production 113 Forestry and Logging 11411 Commercial Fishing 115 Support Activities for Agriculture and Forestry 211-213 Mining 221 Utilities 311-339 Manufacturing 42 Wholesale Trade 4849 Transportation and Warehousing 51 (excluding 512131 and Information(excluding movie theaters and drive-in theaters) 512132) Securities, Commodity Contracts, and other Financial Investments 523-525 and Related Activities; Insurance Carriers and Related Activities; Funds,Trusts,and Other Financial Vehicles 5413,5415,5416, Scientific Research and Development Services 5417,and 5419 551 Management of Companies and Enterprises 922140 Correctional Institutions Section 3. Foundation Reports. The Foundation shall prepare and submit to the District after the end of each calendar quarter during the term of this contract a verbal or brief written report describing the services performed by the Foundation pursuant to this contract during the previous quarter. The Foundation shall prepare and submit to the District, as soon as practicable after the end of the Foundation's fiscal year,a written report describing in detail the services performed by the Foundation pursuant to this contract during the preceding fiscal year. Economic Development Special Services Contract,Page 3 Section 4. Fees. For and in consideration of the services to be performed by the Foundation and compliance with the terms of this contract and subject to the other provisions of this section, the District agrees to pay to the Foundation its actual costs concerning the following on a reimbursement basis: Description Amount Not to Exceed Trade Shows 57,500.00 Revolving Loan Program $17,500.00 Environmental Strategy $25,000.00 lntermodal Transportation Strategy $25,000.00 Workforce Mobility Strategy $25,000.00 Total Amount Not To Exceed $100,000.00 The District shall pay the undisputed invoiced amounts within 30 days of receipt of an invoice therefore. Section 5. Allocated Funds. Payments by the District to the Foundation are subject to funds being appropriated by the District for the purpose of purchasing the services provided in this contract. Section 6. Term. This contract shall be effective for the period from October 1, 2007, to September 30, 2008. It is specifically agreed that the Foundation shall not be obligated to perform any services under or pursuant to this contract and the District shall not be obligated to make any payments for services performed after the expiration of that period. 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 contract 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 duties under this contract as of the 34th 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. Economic Development Special Services Contract,Page 4 Section 8. Independent Contractor. The relationship of the Foundation to the District shall be that of an independent contractor. The District shall have no authority to direct the day-to-day activities of any of the Foundation's personnel decisions, and shall have no other rights to internal working papers or other information or data than the District would have to any other independent contractor providing specific services (e.g. museum services, weed cutting, legal services, auditors). Without in any way limiting the generality of the foregoing, it is specifically acknowledged and agreed that Foundation has bargained for the confidentiality of all internal information and data that it generates, other than that required to be submitted to the District pursuant to sections 3 and 14 of this contract, in order to foster and promote competition, to assure the integrity of the competitive process, and to protect proprietary or innovative business strategies and concepts. Section 9. Parties in Interest. This contract shall bind and benefit the District and the Foundation 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. Applicable Laws. 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 12. 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 Economic Development Special Services Contract,Page 5 such other address as the receiving party may have theretofore prescribed by notice to the sending party: FOUNDATION Baytown Area/West Chambers County Economic Development Foundation Attn: Executive Director 1300 Rollingbrook, Suite 610 Baytown, Texas 77521 Fax: (281)422-7682 DISTRICT Baytown Municipal Development District Attn: General Manager P. O. Box 424 Baytown,Texas 77522-0424 Fax: (281)420-6500 Section 13. Audits. The Foundation shall provide to the District, within ninety (90) days of the close of the Foundation's fiscal year, its audited annual financial statements. Section 14. 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 15. Entire Agreement. This contract 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. Section 16. Assignment or Transfer of Rights or Obligations. The Foundation 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 District, nor shall the Foundation assign any monies due or to become due to it hereunder without the previous consent of the District. Economic Development Special Services Contract,Page 6 Section 17. Severability. 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. IN WITNESS WHEREOF, the parties have made and executed this contract in multiple copies,each of which shall be an original,on this the day of December,2007. BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT GARRISON C. BRUMBACK, General Manager ATTEST: LORRI COODY,Assistant Secretary APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., General Counsel BAYTOWN AREA/WEST CHAMBERS COUNTY ECONOMIC DEVELOPMENT FOUNDATION Signature) i- 'd (Printed Name) (Title) ATTEST: fa (Signatu ) 1a. &J 14-1717 AO (Printed ame) (-Idmifil-5, 4 yel 455)-5� (Title) KAKaren\Filc%�City CouncihMunicipal Development District\Contracts 20117\MarketinFContract2OO7.OR.doc Economic Development Special Services Contract, Page 7 ECONOMIC DEVELOPMENT SPECIAL SERVICES CONTRACT STATE OF TEXAS § COUNTY OF HARRIS § THIS CONTRACT is made as of the day of December, 2007, by and between the BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT, a political subdivision of the State of Texas and the City of Baytown, hereinafter called "District," and THE BAYTOWN AREA/WEST CHAMBERS COUNTY ECONOMIC DEVELOPMENT FOUNDATION, hereinafter called "Foundation." WITNESSETH: WHEREAS, the District desires to investigate and undertake ways and means of promoting prosperous development of business, industry and commerce within Baytown, and further desires to promote the location and development of new businesses and industries in Baytown as well as the maintenance and expansion of existing businesses; and WHEREAS, the Foundation was formed for the purposes, among others, of promoting and encouraging, or causing to be promoted and encouraged, the formation of new businesses and the expansion of existing businesses, the relocation of existing businesses, and the general diversification of the economy of and in Baytown and West Chambers County; and WHEREAS,the District desires to contract with the Foundation to provide, or cause to be provided, economic development services herein described in the Baytown area; and WHEREAS, the Foundation is willing, in exchange for the consideration herein provided, to provide, or cause to be provided, the economic development services desired by the District which are intended to expand the tax base and the employment base of Baytown and the surrounding area; and WHEREAS, the formation of new businesses and the expansion of existing businesses in Baytown would benefit the District by the resultant expansion of both the tax base of the District and the employment base; and WHEREAS, the District and the Foundation agree that in order to foster and promote competition, to assure the integrity of the competitive process, and to protect proprietary or innovative business strategies and concepts, information and data developed, generated or received by the Foundation should remain privileged and confidential except as herein provided; NOW THEREFORE, for and in consideration of the premises and mutual covenants herein contained, it is agreed as follows: Economic Development Special Services Contract,Page 1 Section 1. Representations and Warranties of Foundation. Foundation hereby represents and warrants as follows: a) The Foundation is engaged in an on-going effort to attract new businesses to the Baytown/West Chambers County area and to encourage the expansion of existing businesses in the Baytown/West Chambers County area. b) The Foundation covenants that it shall actively work to productively coordinate its activities with other area economic development organizations in an effort to reduce duplication of services. c) The Foundation represents and warrants that it is a non-profit economic development organization, the principal purpose of which is the promotion of economic development in the Baytown and West Chambers County area. Section 2. Services to be Provided. The Foundation shall provide the following economic development services; provided such services are designed to promote or develop new or expanded business enterprises that create or retain primary jobs: (A) Trade Shows. The Foundation shall participate in trade shows promoting one or more of the following industries: 1. Manufacturing, 2. Retail/ Shopping Centers, 3. Plastics, and 4. Warehouse/Distribution Centers. (B) Revolving Loan Program: The Foundation shall allocate the amount specified for the Revolving Loan Program in Section 4 of this Agreement for use as loan proceeds under this program. The Revolving Loan Program includes both the Baytown Revolving Loan Program and the Affordable Housing Development Program. This allocation is in addition to any previous years' allocations. No funds authorized herein shall be used for the administration of this Program. (C) Environmental Strategy, Intermodal Transportation Strategy and Workforce Mobility Strategy. The Foundation shall employ a consultant, who shall be subject to the approval of the District, to assist in developing the Environmental Strategy, the Intermodal Transportation Strategy and the Workforce Mobility Strategy, which the Foundation is required to Economic Development Special Services Contract,Page 2 � f 1 develop pursuant to its Economic Development Contract with the Baytown Municipal Development District. In this section, the term"primary job"means a job that is: (A) available at a company for which a majority of the products or services of that company are ultimately exported to regional, statewide, national, or international markets infusing new dollars into the local economy; and (B) included in one of the following sectors of the North American Industry Classification System(NAICS): NAICS Sector# Description III Crop Production 112 Animal Production 113 Forestry and Logging 11411 Commercial Fishing 115 Support Activities for Agriculture and Forestry 211-213 Mining 221 Utilities 311-339 Manufacturing 42 Wholesale Trade 48-49 Transportation and Warehousing 51 (excluding 512131 and Information(excluding movie theaters and drive-in theaters) 512132) Securities, Commodity Contracts, and other Financial Investments 523-525 and Related Activities; Insurance Carriers and Related Activities; Funds,Trusts,and Other Financial Vehicles 5413,5415,5416, Scientific Research and Development Services 5417,and 5419 P 551 Management of Com anies and Enterprises 922140 Correctional Institutions Section 3. Foundation Reports, The Foundation shall prepare and submit to the District after the end of each calendar quarter during the term of this contract a verbal or brief written report describing the services performed by the Foundation pursuant to this contract during the previous quarter. The Foundation shall prepare and submit to the District, as soon as practicable after the end of the Foundation's fiscal year,a written report describing in detail the services performed by the Foundation pursuant to this contract during the preceding fiscal year. Economic Development Special Services Contract,Page 3 t � Section 4. Fees. For and in consideration of the services to be performed by the Foundation and compliance with the terms of this contract and subject to the other provisions of this section, the District agrees to pay to the Foundation its actual costs concerning the following on a reimbursement basis: Description Amount Not to Exceed Trade Shows $7,500.00 Revolving Loan Program $17,500.00 Environmental Strategy $25,000.00 Intermodal Transportation Strategy $255000.00 Workforce Mobility Strategy $25,000.00 Total Amount Not To Exceed $1009000.00 The District shall pay the undisputed invoiced amounts within 30 days of receipt of an invoice therefore. Section 5. Allocated Funds. Payments by the District to the Foundation are subject to funds being appropriated by the District for the purpose of purchasing the services provided in this contract. Section 6. Term. This contract shall be effective for the period from October 1, 2007, to September 30, 2008. It is specifically agreed that the Foundation shall not be obligated to perform any services under or pursuant to this contract and the District shall not be obligated to make any payments for services performed after the expiration of that period. 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 contract 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 duties 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 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. Economic Development Special Services Contract,Page 4 i Section 8. Independent Contractor. The relationship of the Foundation to the District shall be that of an independent contractor. The District shall have no authority to direct the day-to-day activities of any of the Foundation's personnel decisions, and shall have no other rights to internal working papers or other information or data than the District would have to any other independent contractor providing specific services (e.g. museum services, weed cutting, legal services, auditors). Without in any way limiting the generality of the foregoing, it is specifically acknowledged and agreed that Foundation has bargained for the confidentiality of all internal information and data that it generates, other than that required to be submitted to the District pursuant to sections 3 and 14 of this contract, in order to foster and promote competition, to assure the integrity of the competitive process, and to protect proprietary or innovative business strategies and concepts. Section 9. Parties in Interest. This contract shall bind and benefit the District and the Foundation 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. Applicable Laws. 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 12. 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 Economic Development Special Services Contract,Page 5 such other address as the receiving party may have theretofore prescribed by notice to the sending party: FOUNDATION Baytown Area/West Chambers County Economic Development Foundation Attn: Executive Director 1300 Rollingbrook, Suite 610 Baytown, Texas 77521 Fax: (281)422-7682 DISTRICT Baytown Municipal Development District Attn: General Manager P. O. Box 424 Baytown, Texas 77522-0424 Fax: (281)420-6500 Section 13. Audits. The Foundation shall provide to the District, within ninety (90) days of the close of the Foundation's fiscal year, its audited annual financial statements. Section 14. 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 15. Entire Agreement. This contract 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. Section 16. Assignment or Transfer of Rights or Obligations. The Foundation 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 District, nor shall the Foundation assign any monies due or to become due to it hereunder without the previous consent of the District. Economic Development Special Services Contract,Page 6 r w • Section 17. Severability. 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. IN WITNESS WHEREOF, the parties have ma a and executed this contract in multiple copies, each of which shall be an original, on this the day of December, 2007. . Y BAYTO M ICIPAL DEVELOPMENT DIST C de • * 6 GARRISON MBACK General Manager AT DY, Assistant Secretary APPROVE S TO FORM: ACIO RAMIR.EZ, SR., Gen r Counsel BAYTOWN AREA/WEST CHAMBERS COUNTY ECONOMIC DEVELOPMENT FOUNDATION 0"'o - //- Signature) (Printed Name) (Title) ATTEST: —, A�u (SignatuU) "fro- 1?0 (Printed ame) 9dl K(W4 5) 7 (Title) R:1Karen\Files\City CouncillMunicipal Development D i stri ct\Con tracts 20071MarketingContract2007-08.doc Economic Development Special Services Contract,Page 7