HomeMy WebLinkAboutOrd 266-2006 Relating to A Master Agreement by GTUA and the Texas Water Development Board.pdfOrdinance No. 2 4s- A 004
AN ORDINANCE by the City Council of the City of Anna, Texas, authorizing the
execution and delivery of an "Amended and Restated Contract for Water
Supply and Sewer Service" with the Greater Texama Utility Authority and
resolving other matters incident and related to the execution and delivery
of such Contract including specifying the term, consideration, and
obligations of the parties to such Contract, resolving provisions incident
and related to the subject and purpose of this ordinance.
WHEREAS, the Greater Texoma Utility Authority (the "Authority") and the City of Anna,
Texas (the "City") have previously entered into that certain Contract for Water Supply and
Sewer Service, as such contract may have been amended from time to time (the "Prior
Contract");
WHEREAS, negotiations have been conducted between the Authority and the City, with
respect to the execution of an amended and restated water supply and sewer service contract
(the "Contract," the farm of which is attached hereto as Exhibit A), whereby the Authority would
provide water supply and sanitary sewer collection and treatment facilities to the City;
WHEREAS, such Contract amends and restates the Prior Contract, but does not alter or
impair any existing obligations between the parties or to any third parties, and references to the
Prior Contract in existing obligations of the parties shall mean and shall include the Prior
Contract and the Contract;
WHEREAS, said Contract has been prepared and submitted to this governing body for
approval, and it has been determined by the City Council of the City that the Contract should be
approved; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS:
Section 1: That the "Amended and Restated Contract for Water Supply and Sewer
Service" by and between the Authority and the City attached hereto as Exhibit A and
incorporated herein for all purposes is hereby approved for and on behalf of the City. The
Mayor and City Secretary are hereby authorized and directed to execute such contract for and
on behalf of the City and as its act and deed.
Section 2: This ordinance shall take effect and be in force from and after its
passage.
45]]]981.1/10511846
PASSED AND APPROVED, this 23rd day of May, 2006.
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EXHIBIT A
AMENDED AND RESTATED
CONTRACT FOR WATER SUPPLY AND SEWER SERVICE
45777951.1110511846 A-1
AMENDED AND RESTATED CONTRACT
FOR WATER SUPPLY AND SEWER SERVICE
THE STATE OF TEXAS
THE COUNTIES OF COLLIN
AND GRAYSON
THIS AMENDED AND RESTATED CONTRACT FOR WATER SUPPLY AND SEWER
SERVICE ("Contract") is made and entered into as of April 17, 2006, between the GREATER
TEXOMA UTILITY AUTHORITY (hereinafter referred to as the "Authority"), a conservation and
reclamation authority, a governmental agency, a political subdivision of the State of Texas, and
a body politic corporate, duly created, existing and acting by virtue of Chapter 97, Acts of the
66'" Legislature of Texas, Regular Session, 1979, as amended by Chapter 398 Acts of the 68"
Legislature, Regular Session 1983 (the "Act'), and the CITY OF ANNA, TEXAS, a municipal
corporation in the County of Collin, Texas (hereinafter referred to as the "City"), duly created
and existing under the laws of the State of Texas:
W ITN ESS ET H:
WHEREAS, the Authority and the City have previously entered into that certain Contract
for Water Supply and Sewer Service, dated as of December 10, 1996, as such contract may
have been amended from time to time (the "Prior Contract');
WHEREAS, this Contract amends and restates the Prior Contract, but does not alter or
impair any existing obligations between the parties or to any third parties, and references to the
Prior Contract in existing obligations of the parties shall mean and shall include the Prior
Contract and this Contract (this Contract being only a restatement of the Prior Contract as the
Prior Contract has been amended from time to time;
WHEREAS, the Authority, acting pursuant to the Act, has issued or proposes to issue, or
both, its bonds for the purposes of providing (i) certain sanitary sewer collection and treatment
facilities for use by the City, and (ii) an additional supply of water to the City and Gertain water
supply facilities in order to store and transport such water to the City ;
WHEREAS, certain revenues to be received by the Authority from the City under this
Contract are to be pledged to the payment and security of the bonds to be issued by the
Authority and will constitute the basis for the Authority's credit in financing such facilities and
issuing such bonds; and
WHEREAS, the Authority and the City, acting through their duly constituted governing
bodies pursuant to authority granted by V.T.C.A., Section 791.026, Government Code, as
amended, have mutually agreed upon the terms and conditions of this Contract; now, therefore
IN CONSIDERATION of the mutual covenants, agreements and undertakings herein set
forth, the parties hereto hereby agree and contract as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01: Unless the context shall indicate a contrary meaning or intent, the
terms below defined, for all purposes of this Contract and any contract amendatory or
supplemental to this Contract shall be construed or used and are intended to have meanings as
follows:
(a) "Authority" shall mean the Greater Texoma Utility Authority, or its successor.
(b) "Board" and "Board of Directors" shall mean the Board of Directors of the
Authority.
(c) "Bond Resolution" shall mean any resolution of the Board of Directors authorizing
the issuance of the Bonds and providing for their security and payment, as such resolution(s)
may be amended from time to time as therein permitted, where the proceeds from the sale of
the Bonds will be used to discharge the cost of the Project. A resolution approving a Master
Agreement with the Texas Water Development Board is a Bond Resolution.
(d) "Bonds" shall mean any bonds and other obligations including, without limitation,
obligations in connection with any Master Agreement between the Authority and the Texas
Water Development Board, payable from revenues to be received by the Authority from the City
under this Contract and to be issued or incurred by the Authority for the purpose of providing
funds to pay the necessary costs of the Project, whether in one or more series, issues or
agreements.
(e) "City" shall mean the City of Anna, Texas.
(f) "Cost of the Project" shall mean, with respect to the Water Project or the Sewer
Project, all cost and expense incurred in connection with the acquisition, construction,
improvements, enlargement, extension and repair of the Project, including, without limiting the
generality of the foregoing, the cost of the acquisition of all land, rights-of-way, property rights,
easements, and interests, the cost of all machinery and equipment, financing charges, interest
and administrative expenses expected to accrue during the period of construction, the funding
of any reserve funds created by the Bond Resolution(s), cost of estimates and of engineering
and legal services, plans, specifications, surveys, estimates of cost and of revenue, other
expenses necessary or incident to determining the feasibility and practicability of acquiring,
constructing, improving, enlarging, extending, or repairing the Project, and such other expense
as may be necessary or incident to the acquisition, construction, improvement, enlargement,
extension or repair of the Project and all legal fees, printing and other cost, fees and expenses
necessary for or incident to the issuance of the Bonds.
(g) "Engineer" shall mean a registered, professional engineer (who may be the City
Engineer or the Authority's Engineer). The City and Authority agree that the Engineer may be a
different firm on different aspects of the Project and that any Project will be acquired,
constructed, improved, enlarged, extended and repaired in accordance with the plans and
specifications prepared under the supervision of the Engineer. It is further agreed that an
Engineer may be changed or added and the scope of duties adjusted by the Authority, subject
to the consent of the City.
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(h) "Fiscal Year" shall mean the twelve month operating period (under this Contract)
commencing October 1" of each year, provided such twelve month period may be changed one
time in any three calendar year period by agreement of the Authority and the City (which
agreement, if made, shall he attached hereto as an exhibit).
(i) "Maintenance and Operation Expense of the Project" shall mean the expense of
maintenance and operation of the Project including all salaries, labor, materials, interest,
repairs, and replacements necessary to render efficient service, or which might be necessary to
meet some physical accident or condition which would otherwise impair the security of the
Bonds. Such term shall not include depreciation.
Q) "Operator" shall mean the party to the Contract who is designated, from time to
time City, by the parties with respect to each Project and, in the absence of such designation,
shall mean the City.
(k) "Project" shall mean, collectively, the Water Project and the Sewer Project.
(I) "Sewer Project" shall mean, collectively, the sanitary sewer facilities which are to
be (i) constructed or acquired in order to meet the contractual obligations hereunder, and (ii)
financed by the Authority through the issuance of bonds or other obligations, to the extent the
same are payable from the money paid or required to be paid by the City under this Contract, or
obtained as grant funds, from any source, for the purpose of paying all or part of the Cost of the
Project described in each ordinance or resolution of the City, duly passed prior to or subsequent
to the date of this Contract, authorizing the issuance of Bonds by the Authority to finance the
Costs of the Project.
(m) "Water Project" shall mean, collectively, the water supply, storage and
transmission facilities which are to be (i) constructed or acquired in order to meet the contractual
obligations hereunder and (ii) financed by the Authority through the issuance of bonds or other
obligations, to the extent the same are payable from the money paid or required to be paid by
the City under this Contract or obtained as grant funds, from any source, for the purpose of
paying all or part of the Cost of the Project described in each ordinance or resolution of the City,
duly passed prior to or subsequent to the date of this Contract, authorizing the issuance of
Bonds by the Authority to finance the Costs of the Project.
ARTICLE II
SECTION 2.01: The City's Representations and Agreements. In connection with
its undertakings hereunder, the City represents to the Authority and agrees with the Authority as
follows:
(a) In its capacity as a duly incorporated City of Texas, it is empowered under
applicable laws of Texas to enter into the engagements prescribed for it under this Contract and
to perform all obligations which may result therefrom, and its governing body has duly
authorized execution of this Contract. Pursuant to V.T.C.A., Section 791.026, Govemment
Code, as amended, and to the extent required by the terms of that Section, the City agrees not
to obtain water supply from any source other than a party to this Contract, except that this
Contract expressly allows the City to obtain water from sources other than the Authority if the
express written consent of the Authority is obtained prior to the execution of any agreement to
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obtain water supply, as authorized by V.T.C.A., Section 791.026(b), Government Code, as
amended.
(b) It will timely pay to the Authority the full amount it is required to pay under the
provisions of this Contract for the services supplied by the Project.
(c) That it will plan, construct, maintain, operate and finance its own utility system
and set retail rates to individual customers for water and sanitary sewer service adequate to pay
all City obligations secured by and made payable from the revenues derived from the operation
of the Citys combined Water and Sanitary Sewer System (the "Utility System").
(d) That it will cooperate with the Authority in the performance of the duties and
responsibilities assigned to the Authority by this Contract.
SECTION 2.02: Representations and Agreements of Authority. In connection with
its undertakings hereunder, the Authority represents to the City and agrees with the City as
follows:
(a) In its capacity as a conservation and reclamation district created by the Act,
pursuant to Article XIV, Section 59 of the Texas Constitution, it is empowered under applicable
laws of the State of Texas, particularly under the Act, the Interlocal Cooperation Act, and the
Texas Water Code, to enter into the engagements prescribed for it under this Contract and to
perform all obligations which may result therefrom, and its governing body has duly authorized
execution of this Contract.
(b) That it will finance all Costs of the Project not provided by the City and any grant
secured for the construction of the Project.
SECTION 2.03: Construction. The Operator agrees to assume responsibility for
the construction of the Project and the Authority will enter into such contracts as are necessary
to provide the Project. To this end, the Authority and the City agree that:
(a) Unless otherwise agreed by the parties, the Operator shall be responsible for the
preparation of final plans and specifications for the Project.
(b) Final plans and specifications for the Project shall be subject to the approval of
the Authority and the City.
(c) All construction contracts shall be let and awarded pursuant to the laws
applicable to the Authority.
(d) The Authority shall let and award all construction contracts, subject to the
approval of each contract by the City.
(e) The Authority shall deposit from the proceeds from the sale of its Bonds in a
special Construction Fund to be created and established by the Bond Resolution($), an amount
of money which shall be specified in said Bond Resolution(s). The Authority shall draw on and
use said Construction Fund to pay the cost of acquiring, constructing, improving, extending,
enlarging and repairing the Project.
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M Unless otherwise agreed by the parties, the Operator shall be responsible for the
acquisition of all land, rights-of-way, property rights, easements and interest required to provide
the Project, subject to the approval of the City and the Authority.
ARTICLE III
FISCAL MATTERS
SECTION 3.01: Payment for Service. The Authority will provide from the proceeds
received through the issuance and sale of its Bonds such funds as are necessary, when
coupled with any funds or property provided by the City and any grant received, for the purpose
of providing all or part of the Project. It is agreed that the City and its customers shall have the
exclusive use of the entire Project for the useful life of the Project. In consideration for the
Authority's obligation hereunder, the City recognizes and agrees that the Authority will acquire
an undivided interest in the Project equivalent to the percentage of the total cost of the Project
provided by the Authority through the issuance and sale of its Bonds. It is further agreed that
the City's obligations to make any and all payments specified in this Article and the ownership
interest of the Authority in the Project will terminate when all of the Authority's Bonds issued in
connection with the Project have been paid in full and retired and are no longer outstanding. It
is further understood and agreed that the Authority's only source of funds to pay the principal of
and interest on its Bonds is from the payments to be made by the City to the Authority under this
Contract, and the City agrees that it will make to the Authority the following payments:
(a) Monthly amortization payment — Such amounts, payable monthly on or before
the 10th day of each month, in approximately equal installments, as are necessary to pay (i) the
principal coming due on the Authority's Bonds on the next succeeding principal payment date;
(ii) the interest coming due on the Authority's Bonds on the next succeeding interest payment
date; and, (iii) the fees and charges of the Paying Agent(s) for paying or redeeming the Bonds
and interest thereon coming due on each applicable date.
(b) Reserve Fund Payment — Such amount as is required to be paid into the
Reserve Fund from the Revenue Fund (out of payments to be made by the City) under the Bond
Resolution in order to establish, maintain or replenish the Reserve Fund for the security and
payment of Bonds.
(c) Administrative Payment — An amount sufficient to pay the administrative and
overhead expenses of the Authority, directly attributable and chargeable to the Bonds and the
Project, including the cost of routine annual accounting reports and the costs of all continuing
disclosure undertakings.
(d) Extraordinary Expense Payment — Such amounts, as are necessary to pay or
reimburse the Authority for any extraordinary or unexpected expenses or costs reasonably and
necessarily incurred by the Authority in connection with the Bonds and the Project, such as
expenses of litigation, if any, and costs of special studies and special professional services, if
and when required by any governmental directive or regulation or as may be agreed between
the City and the Authority.
(e) The cost of Maintenance and Operation of the Project (for which provision is
made in Section 3.03) if the Authority is the Operator under that Section.
SECTION 3.02: Time for Making of Payments. The City agrees to make the
payments required by Section 3.01 at the times hereafter specified:
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(a) Monthly Amortization Payments — the City shall commence making monthly
amortization payments at such time as any amount required by the Bond Resolution(s) to be
deposited into an escrow account for the payment of interest on the Bonds during the Project
construction period has been fully exhausted; provided that such payments shall commence in
no event later than the earlier of (i) twelve months prior to the first principal payment date
specified in the Bond Resolution(s), or (ii) six months prior to the first interest payment date for
which moneys are not set aside for the payment of the interest coming due on such date from
the proceeds of the Bonds. Monthly amortization payments shall continue to be made
throughout the term of the Contract and shall be adjusted by the City so as to provide for the
accumulation of the full amount of debt service requirements (principal, interest and paying
agent fees due on any given payment date) on or before the first day of the month such debt
service requirements become due.
(b) Reserve Fund Payment — the City shall commence making these payments on
the 10th day of a month, as may be provided in the Bond Resolution, after the delivery of the
initial series of Bonds issued to provide the Project, and upon the issuance of additional Bonds,
shall increase the payments in accordance with the Resolution authorizing such additional
Bonds.
(c) Administrative Payment — the City shall commence making the administrative
payment on the 10th day of the month following the effective date of this Contract, and
thereafter such payment shall be made on the 10th day of each month thereafter throughout the
term of this Contract.
(d) Extraordinary Expense Payment — the City shall make any extraordinary
expense payment immediately upon receipt of the statement therefor.
(e) Maintenance and Operating Expenses: (i) if the City is designated as the
Operator, such expenses shall be paid by the City as the same become due; or (ii) if the
Authority is designated as the Operator, the City shall pay (up to the amount annually budgeted
for such expenses) the amount which the Authority determines shall be required in such
months, such payments to be made on or before the 10th day of each month after the Project
becomes operational. The annual budget shall be prepared by the Authority at least thirty (30)
days prior to the date the Project is to become operational, or, thereafter prior to the beginning
of each Fiscal Year; the budget shall then be submitted to the City which may indicate
exceptions or suggestions, which shall then be considered by the Board. If an annual budget is
found to be insufficient or excessive, the parties agree the same shall be taken into
consideration by an amendment as well as the budget for the following year, with the view that
additional payments shall be made or credit shall be given so that expenditures match receipts
over the Fiscal Year or an adjustment is made in the following month.
SECTION 3.03: Maintenance and Ooeration of the Project. Unless otherwise
agreed by the parties, it is agreed that the Operator will be responsible for maintaining and
operating the Project for the entire term of this Contract, and shall pay all costs and expenses
incurred in regard to the maintenance and operation of the Project. The Operator hereby
agrees and covenants to operate and maintain the Project in accordance with accepted good
business and engineering practices and in accordance with all applicable federal and state laws,
including any rules and regulations issued by appropriate agencies in the administration of said
laws. If the City is the Operator under this Section, the City agrees, to the extent allowed by
law, to indemnify and to save and hold harmless the Authority from any and all, exclusive of
costs caused by or associated with the Authority's negligence, claims, damages, losses, costs
457411352110511848
and expenses, including reasonable attorney fees, arising at any time from the acquisition,
existence, ownership, operation and maintenance of the Project.
SECTION 3.04: Insurance. The Operator specifically agrees to carry fire, casualty,
public liability, or other insurance on the Project for purposes and in amounts which would
ordinarily be carried by a municipal corporation owning and operating such facilities. Such
insurance will provide, to the extent feasible and practicable, for the restoration of damages or
destroyed properties and equipment so as to minimize the interruption of services of such
facilities. All premiums for such insurance shall constitute a Maintenance and Operation
Expense of the Project.
SECTION 3.05: Covenant of Timely Payment. The City covenants that it will
timely make (i) the monthly amortization payments and (ii) the additional payments specified
hereunder in accordance with the provisions of this Contract as the same shall become due and
payable, irrespective of whether service of the Project has been abandoned or discontinued, or
if the Project has been rendered wholly or partially unusable by reason of "force majeure". The
City recognizes the fact that the Authority will use the payment received from the City hereunder
to pay, secure and finance the issuance of the Bonds, and the holders of the Bonds shall be
entitled to rely upon the foregoing covenant of payment regardless of any other agreement that
may exist between the Authority and the City.
SECTION 3.06: Late Payment Penalty. Should the City fail to make any payment
at the time herein specified, interest on such amounts shall accrue at the rate of ten percent
(10%) per annum from the date such payment becomes due until paid in full with interest as
herein specified. In the event such payment is not made within sixty (60) days from the date
such payment becomes due, the Authority may institute a proceeding for a mandatory injunction
requiring the payment of the amount due and interest thereon, such action to be instituted in a
court of competent jurisdiction.
SECTION 3.07: Priority of Charges - City to Fix Adequate Rates.
(a) The City represents and covenants that all payments to be made by it hereunder
shall constitute "operating expenses" of the City's Utility System.
(b) The City further agrees to fix and collect such rates and charges for water and
sanitary sewer services to its customers as will make possible the prompt payment of all
expenses of operating and maintaining its Utility System, including all payments, obligations and
indemnities contracted hereunder.
SECTION 3.08: Nature of Obligation of City. The payments required to be made
by the City under the terms of this Contract shall be due and payable in any and all events
regardless of whether there shall be, for any reason, a delay in the completion of all or any part
of the Project and regardless of whether the Project shall have been wholly or partially
destroyed or damaged. The agreements of the City shall be and are separate and independent
covenants and the City shall have no rights of set off, recoupment, or counterclaim. The
Authority shall never have the right to demand payment of any amounts due hereunder by the
City out of funds raised or to be raised by taxation. Any obligations assumed or imposed on
either party hereto shall never be construed to be a debt of such party of a kind that would
require it to levy and collect taxes to discharge any such obligation, it being expressly
understood by the parties hereto that the funds required for ail payments due from the City
45741138.2110511848
pursuant to this Contract are to be collected from the sources referenced herein, and from no
other source.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01: Contract Term. The obligation of the City to promptly make all
prescribed payments shall commence with the effective date of this Contract and continue for
the period during which the Bonds are outstanding and unpaid.
SECTION 4.02: Useful Life of Project. The City and Authority agree and mutually
find that the anticipated use life of the Project equals or exceeds the period specified in the
Bond Resolution(s) for the maturity of all Bonds authorized to be issued.
SECTION 4.03: Abandonment of Use of Project. Except as provided by this
Contract, the City may not obtain services provided for in this Contract from a source other than
a contracting party. It is specifically recognized by the parties hereto that the City, during the
term of this Contract, may acquire other facilities so as to make the continued operation of the
Project uneconomical so it will be to the best interest of the parties to discontinue the operation
of the Project.
Should the City choose to discontinue the operation of all or part of the Project, the City
shall have the exclusive right to the salvage of all of the properties and improvements
constituting the Project so discontinued. Any cost of salvage will be a maintenance and
operating expense of the City, and any money realized from such salvage will serve as a
reduction of such expense. The City shall retain the use of the land where the Project is
situated and all remaining improvements thereon for its corporate purposes.
The abandonment of the use of the Project shall have no effect upon the obligations of
the City to the Authority provided for by this Contract and all payments provided for by this
Contract shall remain obligations of the City of the same nature as provided for by this Contract.
SECTION 4.04: Modification of Provisions. This Contract may be changed and
modified only with the consent of the governing bodies of the Authority and the City. Such
modification may be requested by either party, in which event a joint meeting of the governing
bodies or of their duly authorized and appointed representative shall be held not less than thirty
(30) days after the giving of such notice. At such joint meeting, the suggested changes or
modifications shall be considered, discussed and settled. No such change or modification may
be made which will affect adversely the payment when due of all moneys required to be paid by
the City under the terms of this Contract and no such change will be effective which affects
adversely or causes a violation of any covenants contained in the Bond Resolution(s).
If for any reason the City may desire the construction of additional facilities over and
above those now contemplated, and provided the same are within the legal and economic
capabilities of the Authority, provision therefor shall be made by means of a supplement hereto,
the terms of which are to be negotiated between the City and the Authority.
SECTION 4.05: Regulatory Provisions. This Contract shall be subject to all valid
rules, regulations and laws applicable thereto, as promulgated by the United States of America,
the State of Texas, or any other governmental body or agency having lawful jurisdiction or any
authorized representative or agency of any of them.
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SECTION 4.06: Taxes. In the event any sales or use taxes, or taxes of any
nature, are hereafter imposed upon the Project or the Authority on account of the acquisition,
existence, ownership, operation and maintenance of the Project, the amount of such taxes shall
be treated as operating expenses of the Project.
SECTION 4.07: Title to Water and Sewage. Title to all water and sewage put into
the Project under this Contract shall be in the City.
SECTION 4.08: Notices. Any notice, request, demand, statement or bill provided
for in this Contract shall be in writing and shall be considered to have been fully delivered when
sent by registered mail, addressed as follows:
To the Authority: 5100 Airport Drive
Denison, Texas 75020
Attention: President, Board of Directors
To the City: P. O. Box 776
Anna, Texas 75409
Attention: Mayor
as the case may be, except that routine communications may be sent by ordinary mail
and except that either party, by the filing of an appropriate written notice to the other, may
specify some other individual to whom communications thereafter are to be addressed.
SECTION 4.09: Covenant to Enforce Contractual Obligations. The Authority
covenants that it will enforce the obligations of the City hereunder as may be required to
accomplish the purpose of this Contract. Either party may enforce any obligations hereunder
awed to it by the other party.
SECTION 4.10: Consequences of City Default. The Authority and the City agree
that in the event of default or threatened default, in the payment of principal of or interest on the
Bonds, any court of competent jurisdiction upon petition of the holders of twenty-five percent
(25%) of the principal amount of the then outstanding Bonds of the Authority shall appoint a
receiver with authority to collect and receive all resources pledged to the payment of the Bonds,
enforce all rights arising from default, if any, by the City in making payment under this Contract,
and take charge of the pledged funds on hand and manage the proprietary affairs of the
Authority insofar as such affairs relate to the Project. The court may further vest the receiver
with such powers and duties as the court may find necessary for the protection of the holders of
the Bonds.
SECTION 4.11: Further Agreements of the Parties. The parties hereto specifically
recognize that to the extent the City has heretofore issued, sold and delivered revenue bonds
that were and are payable from and secured by a lien on and pledge of the net revenues of its
Utility System, and to the extent such bonds so issued and delivered are outstanding, the City
has disclosed to the Authority the existence and terms of all such bonds.
Additionally, the City represents to the Authority that:
(a) There is no provision in any ordinance of the City which prohibits the City from
entering into and executing this Contract.
45741138 M0511846
(b) The execution of this Contract and the operation thereunder will not in any way
impair the obligation of contract by and between the City and any other person.
The Project is in furtherance of governmental policy, not inconsistent with the
existing contractual obligations of the City.
SECTION 4.12: Control of Project by Operator. The parties hereto recognize and
it is specifically agreed that after completion of the Project and during the term of this Contract,
the Operator shall have the exclusive right to the use and utilization of the Project, for the
benefit of the City; that the Operator without hindrance from the Authority or the City, or the
employees or other agents of either of them, may operate, maintain, repair, enlarge, improve,
extend, provide for additions to or otherwise control, manage and keep up the said Project.
Except as specified in this Article, the abandonment of the use of all or part of such
Project has no effect upon the obligations of the parties.
SECTION 4.13: Force Maieure.
(a) If for any reason of "force majeure" either of the parties hereto shall be rendered
unable wholly or in part to carry out its obligation under this Contract, other than the obligation of
City to make the payments required under the terms of Section 3.01 hereof, then if such party
shall give notice and full particulars of such reasons in writing to the other party within a
reasonable time after the occurrence of the event, or cause relied upon, the obligation of the
party giving such notice, so far as it affected by such "force majeure" shall be suspended
during the continuance of the inability then claimed, but for no longer period, and any such
parties shall endeavor to remove or overcome such inability with all reasonable dispatch. The
term "force majeure' as employed herein shall mean acts of God, strikes, lock -outs, or other
industrial disturbances, acts of a public enemy, orders or actions of any kind of the Government
of the United States of America or of the State of Texas or any civil or military authority,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms,
floods, washouts, droughts, arrests, restraints of government and people, civil disturbances,
explosions, breakages or accident to dams, machinery, partial or entire failure of water supply
and inability on the part of the Authority to deliver water hereunder or to provide sewage
treatment or of the City to receive water or to deliver sewage treatment, on account of any other
cause not reasonably within the control of the party claiming such inability. It is understood and
agreed that the settlement of strikes and lock -outs shall be entirely within the discretion of the
party having the difficulty, and that the above requirement that any force majeure shall be
remedied with all reasonable dispatch, shall not require the settlement of strikes and lock -outs
by acceding to the demands of the opposing parties when such settlement is unfavorable to it in
the judgment of the party having the difficulty. No failure of Authority to meet any obligation by
reason for force majeure shall relieve the City from its obligations to make the payments
required under the terms of Section 3.01 hereof.
(b) No damage shall be recoverable from Authority by reason of the suspension of
the operation of the Project due to any of the causes above mentioned. If Operator's ability to
operate the Project is affected by any of such causes, the Operator shall promptly notify the
other party in writing giving the particulars as soon as possible after the occurrence of the cause
or causes for such interruption.
(c) It is expressly recognized by City that the Operator may be compelled to make
necessary alterations, repairs or extensions of new or additional facilities from time to time
during the life of this Contract, and any suspensions of the operation of the Project due to such
45741138.2/10511848 10
operation shall not be cause for claim of damage on part of the Operator provided all
reasonable effort is used by the Operator to provide City with the service afforded by the Project
in accordance with this Contract. In such rase, the Operator shall give the other party as much
advance notice as may be practicable of the suspension of operation and of the estimated
duration thereof.
SECTION 4.14: Easements. The City agrees that the Authority may have such
easements over any easements, right of way or property held by the City so that the facilities
herein anticipated and the placement thereof and of all required equipment may be
appropriately provided.
SECTION 4.15: Bond Approval by the Citv.
(a) Prior to the issuance and delivery of any Bonds which are (i) payable as to
principal, interest or redemption premium out of the debt service payments, or (ii) to provide
facilities or service or any item which is to be maintained by the Authority utilizing any part of the
base monthly payments, the City shall approve the issuance thereof as provided in this Section.
(b) If the Bonds are to be sold at a public sale, the governing body of the City shall,
by resolution or ordinance, approve (i) the "Notice of Sale" issued or proposed to be issued by
the Authority prior to their delivery; and, (ii) the facilities to be constructed or acquired; or, if the
Bonds are to be negotiated, or are refunding Bonds, the governing body of the City shall, by
resolution or ordinance approve either (i) the form of purchase agreement or (ii) the resolution
authorizing the issuance of the Bonds.
(c) If the Bonds are to be exchanged for property or services or are to be privately
placed, the governing body of the City shall, by resolution or ordinance, approve (i) the form of
the resolution adopted or to be adopted by the governing body of the Authority which authorizes
the issuance of such Bonds; and (ii) the facilities to be constructed or acquired, or the services
to be provided.
(d) The City and the Authority agree that the holders of the Bonds, and each party
deemed a holder of a Bond by virtue of subrogation to the rights of the holders of the Bonds or
otherwise, shall be express third -party beneficiaries of this Contract and shall have all available
remedies pertaining to enforcement of this Contract.
SECTION 4.16: Severability. The parties hereto agree that if any of the provisions
of this Contract contravene or be held invalid under the laws of the State, same shall not
invalidate the whole Contract, but it shall be construed as though not containing that particular
provision, and the rights and obligations of the parties shall be construed and in force
accordingly.
45]41136.2110511846 11
IN WITNESS WHEREOF, the parties hereto, acting under authority of their respective
governing bodies, have caused this Contract to be duly executed in several counterparts, each
of which shall constitute an original, all as of the day and year first above written.
GREATER TEXOMA UTILITY AUTHORITY
(Authority Seal)
L
By: t. kl 'A A
Pi s nt, Board cit Directors
nTEST:../
Oh.
AssisN t ecret Board of ectors
ATTES :
XkLUt v
City O cretary
City of Anna
CITY OF ANNA, TEXAS
457411362/10511646 S-1
Mayor
City of Anna