MDD Resolution No. 127 RESOLUTION NO.127
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 AR-EA/WEST CHAMBERS COUNTY ECONOMIC
DEVELOPMENT FOUNDATION AND THE BAYTOWNT MUNICIPAL
DEVELOPMENT DISTRICT FOR ECONOMIC DEVELOPMENT SERVICES;AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BAYTOWN MUNICIPAL
DEVELOPMENT DISTRICT:
Section 1: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 vo of the Board of Directors of the
Baytown Municipal Development District,this the 5``'day of Februa 2009.
S P DONCARLOS,resident
ATT ST:�vT C wti
On
KAYJ DARNE Assistant Seer-
APPROVED AS TO FORM:
JMACIO�)I�AMIREZ,SR.,e ral Counsel
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ECONOMIC DEVELOPMENT SPECIAL SERVICES CONTRACT
STATE OF TEXAS§
COUNTY OF HARRIS§
THIS CONTRACT is made as of the day of February,2009,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
AREAIWEST 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 I
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.Marketing Program Implementation.In as much as the marketing
program will include elements that will be utilized in the attraction of both
primary and service sector jobs,funding of this program will be allocated
in such manner as to insure MDD funds are used only in the preparation of
basic material and attraction of primary jobs.Funding for non-MDD
eligible activities will be funded with other EDF monies.Work tasks shall
include targeting companies that most clearly align with Baytown
socio/economic makeup;formulation of a strategy;printing materials;
developing incentive plans;traveling to meet decision makers and re-
designing the EDF website.
In this section,the term"primary job"means a job that is:
Economic Development Special Services Contract,Page 2
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
1 141 1 Commercial Fishing
115 Support Activities for Agriculture and Forestry
21 1-213 Mining
221 Utilities
311-339 Manufacturin
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.
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 the Foundation its actual costs concerning the following on a
reimbursement basis:
Economic Development Special Services Contract Page 3
ii Funds Total Amount
Description Amount Not To EDF Funds Not to Exceed
Exceed
Trade Shows$4,000.00$2,000.00$6,000.00
Marketing Program Implementation$45,000.00$20,000.00$65,000.00
Total Amount Not To Exceed$49,000.00$22,000.00$71,000.00
The District shall pay the undisputed invoiced amounts within thirty(30)days of receipt of an
invoice therefor.
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 1.2008,to September 30,
2009.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.
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
Economic Development Special Services Contract,Page 4
information and data that it generates,other than that required to be submitted to the District
pursuant to sections 3 and 13 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
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 401
Baytown,Texas 77521
Fax:(281)422-7682
Economic Development Special Services Contract,Page 5
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.
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 February,2009.
BAYTOWN MUNICIPAL DEVELOPMENT
DISTRICT
GARRISON C.BRUMBACK,General Manager
Economic Development Special Services Contract,Page 6
ATTEST:
KAYTHIE DARNELL,Assistant Secretary
APPROVED AS TO FORM:
IGNACIO RAMIREZ,SR.,General Counsel
BAYTOWN AREA/WEST CHAMBERS
COUNTY ECONOMIC DEVELOPMENT
FOUNDATION
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Economic Development Special Services Contract,Page 7