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City and ESWC Memorandum of Agreement


THE STATE OF TEXAS §

MEMORANDUM OF AGREEMENT

CITY OF ELLINGER §


This AGREEMENT is made between the CITY OF ELLINGER, TEXAS, hereinafter referred to as the CITY, acting through its Commissioners’ Court, and the ELLINGER SEWER AND WATER SUPPLY CORPORATION, hereinafter referred to as the SWSC, acting through its Board of Directors.


The CITY agrees to provide grant funds budgeted from its Program Year 2023-2024 Community Development Block Grant Program – Community Development Fund contract to construct a water improvements project on behalf of the SWSC benefitting the CITY OF ELLINGER if such is awarded to the CITY by the Texas Department of Agriculture (TDA), hereinafter referred to as the GRANT. The term of this Agreement shall be from April 3, 2023, until the GRANT is administratively closed by TDA. Either party may terminate this Agreement with thirty (30) days written notice to the other party, but such early termination shall not relieve the parties from the financial obligations addressed below.


Parties agree that the CITY shall:

  1. Endeavor to execute its GRANT responsibilities in a timely and efficient manner.

2. Be the repository of all receipts and documentation pertinent to the GRANT and furnish such to TDA upon its request.

3. Serve as the primary contact in all matters pertaining to the GRANT and the conduit for communication between itself, the SWSC, and TDA.

4. Provide pre-bid project design and change orders to the SWSC for its review and approval prior to approval by the CITY.

5. Not award a construction contract or approve a contract modification, including change orders, to complete the activities described in the GRANT in which the cost exceeds the funds available in the GRANT budget unless funds sufficient to cover the shortfall are committed in writing by the CITY, the SWSC, or another party.

6. Attempt to modify the GRANT contract with TDA in order to bring costs within the GRANT budget if construction bids exceed the GRANT budget and funds sufficient to cover the shortfall are not available.

7. Automatically transfer full ownership of the GRANT-funded improvements to the SWSC upon acceptance by the CITY of the Certificate of Construction Completion.

  1. Provide any GRANT matching funds that it has separately committed by resolution of its Commissioners’ Court.


Parties agree that the WSC shall:

  1. Comply with all CITY requests for information required to fulfill the CITY’S obligations under the GRANT.

  2. Offer to provide access to the improved services to all beneficiaries of this project at its officially adopted utility rates.

3. Permit unrestricted access by the CITY and its selected engineering, administrative, and construction contractors to those portions of the construction site under SWSC control, to allow performance of the GRANT-related duties outlined in agreements these entities shall have with the CITY.

  1. Be solely responsible for the continued maintenance and operation of any proposed improvements upon acceptance by the CITY of the Certificate of Construction Completion.

  2. Pay for any cost overruns attributable to the award of a construction contract or a contract modification, including change orders, to complete the activities described in the GRANT that it has approved in writing.

  3. Cooperate with the CITY in any attempt to modify the GRANT contract with TDA in order to bring costs within the GRANT budget if construction bids exceed the GRANT budget and the SWSC is unable to provide funds sufficient to cover the shortfall.

  4. Pay any GRANT-related expenses incurred by the CITY that are unreimbursed by or repaid to TDA, in the event the GRANT project fails to provide the public improvements and benefits required under the GRANT contract.

  5. Pay for any costs resulting from violation or early termination of this Agreement by the SWSC.

9. Automatically receive full ownership of the GRANT-funded improvements upon acceptance by the CITY of the Certificate of Construction Completion.

  1. Provide any GRANT matching funds that it has separately committed in writing through its Board of Directors.


The parties further agree that any GRANT funds provided by the CITY are without warranty of any kind to the SWSC or any third party, and the SWSC hereby agrees, to the extent allowable by law, to defend, hold harmless, and indemnify the CITY, its officers, agents, and employees for any claims for injury or death of any person or any property damage arising out of the CITY’S performance of its obligations under this Agreement. Nothing herein shall be construed to create any rights in third parties.


ELLINGER CITY, TEXAS


ELLINGER SEWER AND WATER SUPPLY CORPORATION










MATT MIKULENKA


GREG HUNGER

CITY MAYOR


BOARD PRESIDENT




ATTEST:












JOSEPH LAMER


MICHAEL SCHLABACH

CITY COMMISSIONER


BOARD SECRETARY

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