Loading...
HomeMy WebLinkAboutResolution - 5763 - Contracts - Texas Dept. Of Economic Development - 02_12_1998RESOLUTION NO. 5763 Item #27 February 12, 1998 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock two contracts by and between the City of Lubbock and Texas Department of Economic Development. Said contracts are attached hereto, and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 12th day of February 1998. $A, 4 (A 41 �� NhNDY SITTON.WVOR ATTEST: KayKAJ Darndll City Sderetary APPROVED AS TO CONTENT: Richard Burdine Assistant City Manager APPROVED AS TO FORM: William de Haas Assistant City Attorney RESOLUTION NO. 5763 STATE OF TEXAS DEPARTMENT OF ECONOMIC DEVELOPMENT February 25, 1998 William de Haas Assistant City Attorney P.O. Box 2000 1625 13t" Street Lubbock, Texas 79457 Re: Reese Center Defense Adjustment Assistance Grants Dear Mr. de Haas: We spoke recently regarding the two Defense Economic Adjustment Assistance Grant contracts for the Institute of Environmental and Human Health in Lubbock. You expressed some concern over the apparent contradiction between the termination date specified in Section 3 of each contract and the length of time required for performance as required by the contracts. This termination date fulfills the Department's need to have the duration of the contract be finite, to help ensure that these legislatively appropriated funds are utilized in a reasonable amount of time, and assure that a project of this nature is completed in a reasonable amount of time. In some cases, as in these contracts, this date does not necessarily cover the amount of time required to fully perform. Here, the reporting and recoupment provisions in particular will necessarily outlast the given termination date. The intent of both parties that these and other such provisions survive the date given for termination should be clear, and we believe that this intent would control in the event of a dispute. This being said, if it appears that completion of a project (resulting in delivery of the final 10% of funds) will run over the termination date, it is important for you to let us know, so that we can amend the contract to extend the date. Within reason, executing such an amendment does not pose a problem, and absent unusual circumstances, would require no additional consideration. I hope this explanation clarifies this issue to your satisfaction. If you have any further questions, please give me a call at (512) 936-0178. Your , l Rob Hill Assistant General Counsel Post Office Box 12728 • Austin, Texas 78711-2728 • 512/936-0100 TDD: 512/936-0555 • Relay Texas: 800/735-2988 Printed on Recycled Paper RESOLUTION NO. 5763 Item #27 February 12, 1998 TEXAS DEPARTMENT OF ECONOMIC DEVELOPMENT CONTRACT FOR Defense Economic Adjustment Assistance Grant STATE OF TEXAS ] COUNTY OF TRAVIS ] SECTION 1. PARTIES TO CONTRACT This contract (hereinafter referred to as "Contract") is made and entered into by and between the Texas Department of Economic Development, an agency of the State of Texas, hereinafter referred to as "Department", and the City of Lubbock (hereinafter referred to as "Contractor"). The parties hereto have severally and collectively agreed and by the execution hereof are bound to the mutual obligations and to the performance and accomplishment of the tasks described herein. SECTION 2. CONTRACT PURPOSE Contractor shall conduct, in a satisfactory manner as determined by Department, an economic development project (hereinafter referred to as the "Project") to renovate and improve Building #555 and cant' out a sewer interconnect project at Reese Center, formerly known as Reese Air Force Base, Lubbock, Texas. Building #555 and the sewage system are hereinafter collectively referred to as the "Facility". The Department will provide support for the Project in the amount of $1,780,000.00 to renovate and improve Building #555, and $220,000.00 to cant' out a sewer interconnect through a Defense Economic Adjustment Assistance Grant (DEAAG), as created by the 75`h Texas Legislature to provide state funding for the purpose of acquiring federal grant assistance or sharing the cost of redevelopment of communities that have been adversely affected by defense downsizing. The grant program is authorized by Senate Bill 227 of the 75 Texas Legislature, that adds Chapter 486 to the Texas Government Code. Section 174 of the Texas Administrative Code contains the rules under which the program is implemented. This Project complements a separate economic development project in which similar funds have been provided for the purchase of capital equipment for the Facility (hereinafter referred to as the "Equipment Purchase Project"). SECTION 3. CONTRACT PERIOD This Contract shall commence on December 19, 1997, and shall terminate on August 31, 1999, upon completion of the Project as defined by Section 16 of this Contract. SECTION 4. CONTRACTOR PERFORMANCE A. Contractor shall conduct and complete the Project in a satisfactory manner as determined by Department. reese facility DEAAG 2 W8 B. Contractor shall comply with all applicable laws and regulations, and shall perform all activities in accordance with the terms of the Special Conditions specified in Section 16 of this Contract, and with all other terms, provisions, and requirements set forth in this Contract. C. No more than ten percent (10%) of contract funds disbursed pursuant to this Contract may be applied towards administrative costs. The acceptability of costs incurred for performances rendered hereunder shall be determined in accordance with this Contract. SECTION 5. DEPARTMENT OBLIGATIONS A. Measure of Liability In consideration of full and satisfactory performance of activities required by Section 4 of this Contract, Department will disburse DEAAG funds to Contractor in the amounts and at the times specified by the Special Conditions detailed in Section 16 of this Contract, and subject to the limitations set forth in this Section 5. 1. It is expressly understood and agreed by the parties hereto that Department's obligations under this Section are contingent upon the actual receipt of adequate state funds to meet Department's liabilities under this Contract. If adequate funds are not available to make payments under this Contract, Department will notify Contractor in writing within a reasonable time after such fact is determined. 2. Department may terminate this Contract after written notice to Contractor of noncompliance with the terms of this Contract and Contractor's failure to cure such noncompliance within forty-five (45) days. Department will not be liable for failure to make payments to Contractor under this Contract after such termination. 3. Department will not be liable to Contractor for any costs incurred by Contractor or for any performances rendered by Contractor which are not strictly in accordance with the terms of this Contract. 4. Department will not be liable for costs incurred or performances rendered by Contractor before commencement of this Contract or after termination of this contract, except as may be specifically set forth in this Contract. B. Excess Payments Contractor shall refund to Department any sum of money paid to Contractor by Department, which Department determines is an overpayment to Contractor, or which Department determines was not spent by Contractor strictly in accordance with the terms of this Contract. No refund payment(s) may be made from local, state, or federal grant funds unless statute or regulation specifically permits repayment with grant funds. Contractor shall make such refund to Department within forty-five (45) calendar days after Department requests such refund. C. Limit of Liability Notwithstanding any other provision of this contract, the total of all payments and other obligations incurred by Department under this Contract will not exceed the sum of Two Million and No/100 Dollars ($2,000,000). reese facility DEAAG 2 2/5/98 SECTION 6. RETENTION AND ACCESSIBILITY OF RECORDS A. Contractor shall maintain fiscal records and supporting documentation for all expenditures of funds made under this Contract in a manner that conforms to this Contract. Such records shall include data on the racial, ethnic, and gender characteristics of persons who are applicants for, participants in, or beneficiaries of the funds provided under this Contract. Contractor shall retain such records, and any supporting documentation, for the greater of four years from the end of the contract period, or the period required by other applicable laws and regulations. B. Contractor shall give the Department, its designee, or any of their duly authorized representatives, access to and the right to examine all books, accounts, records, audit reports, reports, files, documents, written or photographic material, videotape and other papers, things, or property belonging to or in use by Contractor pertaining to this Contract, including records concerning the past use of DEAAG funds. Such rights to access shall continue as long as the records are retained by Contractor. Failure to provide reasonable access to authorized Department representatives shall give the Department the right to terminate the Contract, or any portion thereof, for reason of default. All records and other information shall be retained for audit purposes until such audits or other administrative, civil or criminal matters, including but not limited to investigations lawsuits, administrative inquires and open record requests are completed. Contractor agrees to maintain such records in an accessible location and to provide citizens reasonable access to such records consistent with the Texas Public Information Act. C. Access to records under'this Section 6 are subject to the Family Educational Rights and Privacy Act of 1974 (FERPA). Where made necessary by operation of FERPA, Contractor shall provide requested information from an alternative source or from appropriately redacted sources. D. Contractor shall include the substance of this Section 6 in all subcontracts. SECTION 7. MONITORING Department reserves the right to perform periodic on -site monitoring of Contractors compliance with the terms and conditions of this Contract, and of the adequacy and timeliness of Contractor's performances under this Contract. After each monitoring visit, Department will provide Contractor with a written report of the monitor's findings. If the monitoring report notes deficiencies in Contractor's performances under the terms of this contract, the monitoring report shall include requirements for the timely correction of such deficiencies by Contractor. Failure by Contractor to take action specified in the monitoring report may be cause for suspension or termination of this Contract, as provided in Sections 14 and 15 of this Contract. SECTION 8. INDEPENDENT CONTRACTOR It is expressly understood and agreed by the parties hereto that Department is contracting with Contractor as an Independent Contractor, and that Contractor, its employees and subcontractors are not employees of the Department. reese facility DEAAG 3 215/98 SECTION 9. CONFLICT OF INTEREST A. Contractor shall ensure that no employee, officer, or agent of Contractor shall participate in the selection, award or administration of a subcontract supported by funds provided hereunder if a conflict of interest, real or apparent, would be involved. Such conflict of interest would arise when: (1) the employee, officer, or agent; (2) any member of his or her immediate family; (3) his or her partner; or, (4) any organization which employs, or is about to employ any of the above, has_a financial or other interest in the firm or person selected to perform the subcontract. Contractor shall comply with Chapter 171, Texas Local Government Code. B. Except for eligible administrative or personnel costs, no employee, agent, consultant, officer, or elected or appointed official, of either Contractor or of a subcontractor, who exercises or has exercised any functions or responsibilities or is in a position to participate in decision -making or gain inside information in regard to the activities involved in the Project, shall be permitted to have or obtain a financial interest in or benefit from the Project or any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for themselves or those with whom they have family or business ties. This prohibition shall remain in effect for the duration of the prohibited relationship plus one calendar year thereafter. C. Contractor shall include the substance of this Section 9 in all subcontracts. SECTION 10. NONDISCRIMINATION AND SECTARIAN ACTIVITY A. Contractor shall ensure that no person shall on the ground of race, color, national origin, religion, sex, age, or handicap be excluded from participation in, be denied the benefits of, be subjected to discrimination under or be denied access to any program or activity funded in whole or in part with funds made available under this Contract. B. None of the performances rendered by Contractor under this Contract shall involve, and no portion of the funds received by Contractor under this Contract, shall be used in support of any sectarian or religious activity, nor shall any facilities used in the performance of this Contract be used for sectarian instruction or as a place of religious worship. C. Contractor shall include the substance of this Section 10 in all subcontracts. SECTION 11. LEGAL AUTHORITY A. Contractor assures and guarantees that Contractor possesses the legal authority to enter into this contract, receive funds authorized by this contract, and to perform the services Contractor has obligated itself to perform hereunder. B. The person or persons signing and executing this Contract on behalf of Contractor, or representing themselves as signing and executing this Contract on behalf of Contractor, do hereby warrant and guarantee that he, she or they have been duly authorized by Contractor to execute this Contract on behalf of Contractor and to validly and legally bind Contractor to all terms, performances, and provisions herein set forth. reese facility DEAAG 4 2/5/98 C. Department will have the right to suspend or terminate this Contract if there is a dispute as to the legal authority of either Contractor or the person signing this Contract to enter into this contract, any amendments hereto or to render performances hereunder. Contractor is liable to Department for any money it has received from Department for performance of the provisions of this Contract, if Department has suspended or terminated this Contract for reasons enumerated in this Section 11. SECTION 12. LITIGATION AND CLAIMS A. Contractor shall give Department immediate notice in writing of any action, including any proceeding before an administrative agency, filed against Contractor arising out the performance of any subcontract hereunder. Except as otherwise directed by Department, Contractor shall furnish immediately to Department copies of all pertinent papers received by Contractor with respect to such action or claim. Contractor shall notify the Department immediately of any legal action filed against the Contractor or any subcontractor, or of any proceeding filed under the federal bankruptcy code. Contractor shall submit a copy of such notice to Department within 30 calendar days after receipt. No funds provided under this Contract may be used in the payment of any costs incurred from violations or settlements of or failure to comply with federal and state regulations. B. Contractor hereby agrees to indemnify and hold harmless Department, its Governing Board members, officers, agents and employees, and the State of Texas, its officers, agents and employees from any and all losses, costs, damages, expenses, and liabilities of whatsoever nature (including, but not limited to, attorney's fees, litigation and court costs, amounts paid in settlement, and amounts paid to discharge judgments) directly or indirectly resulting from, arising out of, or related to the performance of this Contract by Contractor, or the design, construction, installation, operation, use, occupancy, maintenance, or ownership of the Facility. SECTION 13. CHANGES AND AMENDMENTS A. Except as specifically provided otherwise in this Contract, any alterations, additions, or deletions to the terms of this Contract shall be by amendment hereto in writing and executed by both parties to this contract. B. It is understood and agreed by the parties hereto that performances under this Contract shall be rendered in accordance with the laws and rules governing Defense Economic Adjustment Assistance Grants, and the terms and conditions of this Contract. Department may, during the contract period, issue policy directives which serve to establish, interpret, or clarify performance requirements under this contract. Such policy directives will be promulgated by Department, shall have the effect of qualifying the terms of this Contract and shall be binding upon Contractor, as if written herein, provided however that said policy directives and any amendments shall not alter the terms of this Contract so as to release Department from any obligation specified in Section 5 of this Contract to reimburse costs incurred by Contractor prior to the effective date of said amendments or policy directives. C. Any alterations, additions, or deletions to the terms of this Contract required by changes in state law or regulations are automatically incorporated into this Contract without written amendment hereto, and shall become effective on the date designated by such law or regulation. reese facility DEAAG 5 2W8 SECTION 14. SUSPENSION A. Notwithstanding the provisions of Chapter 2251 of the Texas Government Code, in the event Contractor fails to comply with any term of this Contract, Department may, after written notice to Contractor of noncompliance with the terms of this Contract and Contractor's failure to cure such noncompliance within forty-five (45) days, suspend this Contract in whole or in part, withhold further payments to Contractor, and prohibit Contractor from incurring additional obligations of funds under this Contract. B. A suspension under this Section 14 may be lifted only at the sole discretion of the Department upon a showing of compliance with or written waiver by Department of the term(s) in question. C. Department will not be liable to Contractor or to Contractor's creditors for costs incurred during any term of suspension of this Contract. SECTION 16. TERMINATION A. Department will have the right, after written notice to Contractor of noncompliance with any term of this Contract and Contractor's failure to cure such noncompliance within forty-five (45) days, to terminate this Contract, in whole or in part, at any time before the date of completion specked in Section 3 of this Contract. In the case of partial termination, the written notice shall identify the portion of the Contract to be terminated. B. Upon termination or receipt of notice to terminate, whichever occurs first, Contractor shall cancel, withdraw, or otherwise terminate any outstanding orders or subcontracts related to the performance of this Contract or the part of this Contract to be terminated, and shall cease to incur costs thereunder. Department will not be liable to Contractor or to Contractor's creditors for costs incurred after the effective date of termination of this Contract. C. Notwithstanding any exercise by Department of its right of suspension under Section 14 of this Contract, or of early termination pursuant to this Section 15, Contractor shall not be relieved of any liability to Department for damages due to Department by virtue of any breach of this Contract by Contractor. Department may withhold payments to Contractor until such time as the exact amount of damages due to Department from Contractor is agreed upon or is otherwise determined. SECTION 16. SPECIAL CONDITIONS A. The total amount of funds provided for this contract, in the amount of Two Million Dollars ($2,000,000.00, hereinafter referred to as "Contract Funds"), shall be disbursed for the completion of two tasks: the renovation of Building #555 (hereinafter referred to as the "Renovation Project"); and the construction of a sewer reconnect (hereinafter referred to as the "Sewer Project"). One Million, Seven Hundred and Eighty Thousand Dollars ($1,780,000.00) shall be allocated to the Renovation Project, and the remaining Two Hundred and Twenty Thousand ($220,000.00) shall be allocated to the Sewer Project. neese facility DEAAG 6 2/W8 B. Contractor shall, within nine (9) months of the effective date of this Contract, submit the following to Department prior to the initial disbursement of Contract Funds, which shall equal fifty percent (50%) of the total amount of funds allocated to the Renovation Project: 1. Copies of plans and specifications for the Renovation Project, specifically the renovation of Building #555 to meet the needs of the Institute of Environmental and Human Health. This renovation shall include, at a minimum, upgrading and expanding the heating, ventilation, and air conditioning system, and limited construction as necessary to install sprinklers and partitions, lower ceilings, and make other general improvements. Further improvements will be undertaken on a priority basis. 2. Copies of the following documentation: a. Final application for funding as submitted to the Economic Development Administration, as specified in Section 17 of this Contract; b. Memoranda from the chief financial officers of Texas Tech University, Market Lubbock, Texas, Texas Tech University Health Sciences Center, and the City of Lubbock, committing funds as specked in Section 17 of this Contract; C. Lease and Furtherance of Conveyance from the U.S. Department of Defense, for "in kind" funding as specified in Section 17 of this contract. 3. A letter identifying a person authorized by Contractor for the purpose of requesting and receiving funds from the Department. 4. A copy of the administration contract, if one is contracted. C. Contractor shall, within nine (9) months of the effective date of this Contract, and prior to the initial disbursement of fifty percent (50%) of the total amount of Contract Funds allocated to the Sewer Project, provide copies of plans and specifications for the Sewer Project, specifically the construction of a sewer reconnect at Reese Center. This construction shall involve, at a minimum, the disconnection of the Reese sewer system from the existing sewage treatment plant, the reconnection to the City of Lubbock's sanitary sewer system for transport to the Lubbock Southeast Wastewater Reclamation Plant, and the construction of a new lift station to effect the reconnection. D. Contractor shall satisfy the following Special Conditions, in addition to the Special Conditions defined in Section 16B.of this Contract, prior to the second disbursement of Contract Funds allocated to the Renovation Project, which shall equal forty percent (40%) of the total amount'of Contract Funds allocated to the Renovation Project: Contractor shall provide a copy of an invoice showing fifty percent (50%) completion of the Renovation Project, with a certificate stamped and signed by the architect or engineer responsible. 2. Contractor shall provide documentation to Department indicating that the plans and specifications for construction of improvements or renovation of the Facility have been reviewed and approved by the Texas Department of Licensing and Regulation (TDLR) with regard to the elimination of architectural barriers encountered by persons with disabilities as specified in TEX.REV.CIV.STAT. ANN. art.9102 and the rules promulgated thereunder. If the TDLR has not issued reese facility DEAAG 7 2/5/98 approval within thirty (30) days of its receipt of the plans and specifications, the operation of this condition may be temporarily suspended pending such approval by submitting proof of mailing and a legible photocopy of both sides of a canceled check. The plans and specifications shall be sent to the Texas Department of Licensing and Regulations, Architectural Barriers Division, P.O. Box 12157, Austin, Texas 78711, and shall be identified as a project being financed through the Department. E. Contractor shall satisfy the following Special Conditions, in addition to the Special Conditions defined in Section 16C of this Contract, prior to the second disbursement of Contract Funds allocated to the Sewer Project, which shall equal forty percent (40%) of the total Contract Funds allocated to the Sewer Project: 1. Contractor shall provide a copy of an invoice showing fifty percent (50%) completion of the Sewer Project, with a certificate stamped and signed by the architect or engineer responsible. 2. Contractor shall provide documentation to Department that the plans and specifications for the lift station and sewer reconnect have been reviewed and when applicable, approved by the Texas Natural Resource Conservation Commission (°TNRCC°) prior to construction. Where TNRCC approval is required, necessary applications and materials shall be sent by Contractor to the Texas Natural Resource Conservation Commission, Watershed Management Division. P.O. Box 12100, Park 35 Circle, Austin, Texas 78753, and shall be identified as activities being'financed through the Department. F. Contractor shall satisfy the following Special Conditions, in addition to satisfying the Special Conditions defined in Section 16 B and D, prior to the final disbursement of the remaining ten percent (10%) of Contract Funds allocated to the Renovation Project: 1. Contractor shall have completed all modifications and renovations to the Facility as described in plans and specifications originally submitted to the Department, 2. Contractor shall submit a Certificate of Completion to Department no later than sixty (60) calendar days after the conclusion of Facility modifications and construction. The Certificate of Completion shall include a final Project Completion Report of all activities performed under this Contract. G. Contractor shall satisfy the following Special Conditions, in addition to satisfying the Special Conditions defined in Section 16 C and E, prior to the final disbursement of the remaining ten percent (10%) of Contract Funds allocated to the Sewer Project: 1. Contractor shall have completed all work on the Sewer Project as described in plans and specifications originally submitted to the Department, and the sewer reconnect system shall be substantially operational; and, 2. Contractor shall submit a Certificate of Completion to Department no later than sixty (60) calendar days after the conclusion work on the Sewer Project. The Certificate of Completion shall include a final Project Completion Report of all activities performed under this Contract. H. The Contractor shall provide milestones and updates on a semi-annual basis, including photographs where appropriate, prior to completion of the total Project (as marked by the release of the final installment of Contract Funds by the Department). reese facility DEAAG 1 8 215198 4 1. Contractor shall ensure that Department is provided with a certified engineering or architectural assessment of the Project on a semi-annual basis. 2. The Contractor shall provide base line and semi-annual data on the impact of the Project on the local economy over a four-year period beginning with the completion of the Project. 3. The Contractor shall provide base line and semi-annual data on full-time jobs generated by the Project and data on the employment of dislocated defense and economically disadvantaged workers beginning with initial occupancy of the Facility. 4. The Contractor shall provide semi-annually, copies of payroll documents verifying the number of employees during the construction phase of the Project. Upon completion of the Project, the Contractor shall provide payroll documents indicating the number of full-time jobs created over the course of the construction phase of the Project. 5. In addition to the limitations on liability otherwise specified in this contract, it is expressly understood and agreed by the parties hereto that if Contractor fails to submit to Department in a timely and satisfactory manner any report required by this contract, Department may, at its sole option and in its sole discretion, withhold any or all payments otherwise due or requested by Contractor hereunder. If Department withholds such payments, it will notify Contractor in writing of its decision and the reasons therefor. Payments withheld pursuant to this paragraph may be held by Department until such time as the delinquent obligations for which funds are withheld are fulfilled by Contractor. I. In the event the Contractor fails to complete the Project or comply with any provision as specified in this Contract, the Contractor may be liable to the Department for an amount not to exceed the maximum obligation under this Contract, and may be barred from applying for or receiving additional funding under the DEAAG program until repayment is made and any other compliance or audit findings are resolved and/or the job generation requirements of this Section 16 are fulfilled. J. Job Generation Requirements 1. Within two years of the completion of the Project, as marked by the release of the final installment of Contract Funds by the Department, Contractor shall ensure and demonstrate to the Department that the completion of the Facility under this Project and the Equipment Purchase Project together shall generate a minimum of sixty-eight (68) new, direct, permanent full-time jobs. 2. In the event the Contractor fails to ensure the creation and retention of new jobs as required by this Section 16, Department shall receive a recoupment of funds from Contractor equal to the lesser of: a. A prorated share of the total Contract Fund amount of two million dollars ($2,000,000.00) for. each of the minimum number of new, direct, pennanent full-time jobs required in this Contract (68) not created and in existence on the second anniversary of the completion of the Project; or b. Fifty percent (50%) of the total Contract Fund amount of two million dollars ($2,000,000.00). reese facility DEAAG 9 2W8 3. For purposes of this Contract: a. Job creation and retention rates must be evidenced by satisfactory documentation, such as copies of payroll documents, as required by the Department. b. The number of jobs counted will include jobs directly related to the Project that are already filled by staff, faculty, and graduate students prior to the effective date of this Contract. C. A "full-time" job is one requiring a minimum of forty (40) hours per week. Any job requiring less than forty hours per week is considered "part-time,' and shall be counted towards the minimum job creation and retention requirement in its proportion to a 40-hour work week (e.g., an employee working a 20 hour week ='/ of a full time employee, a 30 hour week ='/ of a full-time employee). K. Contractor shall provide Department with copies of all reports required by the EDA pursuant to the terms of the grant of EDA funds to the Project, within 30 days of their submission to the EDA. L. Contractor shall provide Department with copies of all final contracts and agreements from funding sources as specified in Section 17 of this contract. SECTION 17. FUNDING SOURCES: Funding Type Specific Source Name Amount of Funding Total Federal Funding Economic Development $1,320,000 $2,320,000 Defense Conversion Administration Department of Defense $1,000,000 Texas Defense Texas Department of $2,000,000 $2,000,000 Economic Adjustment Economic Development Assistance Grant Local Community Texas Tech University $2,000,000 $2,700,000 Funding Higher Education Assistance Fund Market Lubbock, $230,000 Inc.Texas City of Lubbock $220,000 Tech University $250,000 Health Sciences Center Assistance from Other Department of Defense $4,105,000 $4,105,000 Sources renamg avanaointy or Tunas Trom finis source. 5nouia tnese Tunas not become avaname from this source, Contractor shall ensure this funding amount ($1,000,000.00) is met. 2 Represents "in kind" contribution, specifically, land, structures, improvements, and equipment. reese facility DEAAG 10 215198 SECTION 18. SUBCONTRACTS A. Contractor shall ensure that the performance rendered under all subcontracts complies with all terms and provisions of this Contract as if such performance were rendered by Contractor. Contractor shall bear full responsibility for performance by all subcontractors. B. Contractor, in subcontracting any of the performances hereunder, expressly understands that in entering into such subcontracts, Department is in no way liable to Contractor's subcontractor(s). C. Contractor assures and shall obtain assurances from all of its subcontractors where applicable, that no person shall, on the grounds of race, creed, color, disability, national origin, sex or religion, be excluded from, be denied the benefit of, or be subjected to discrimination under any program or activity funded in whole or in part under this Contract. D. As subcontracts and supplier contracts become necessary to carry out the requirements of this Contract, Contractor covenants to make a good faith effort to contract with historically underutilized (disadvantaged) businesses so certified by the State of Texas, as that term is identified by Section 481.101, Texas Government Code. Contractor shall make a good faith effort to let at least thirty percent (30%) of the total value of all subcontracts and supplier contracts for the performance of this Contract to historically underutilized (disadvantaged) businesses. SECTION 19. DEBARMENT By signing this contract, Contractor certifies that it will not award any funds provided under this Contract to any party which is debarred, suspended or otherwise excluded from or ineligible for participation in assistance programs. Contractor further certifies that it is not ineligible under Section 231.006 of the Texas Family Code Family Code to receive the specified grant, loan, or payment and acknowledges that this Contract may be terminated and payment may be withheld if this certification is inaccurate. SECTION 20. WAIVER It is expressly understood and agreed by the parties hereto that any right or remedy provided for in this Contract shall not preclude the exercise of any other right or remedy under this Contract or under any provision of law, nor shall any action taken in the exercise of any right or remedy be deemed a waiver of any other rights or remedies. Failure to exercise any right or remedy hereunder shall not constitute a waiver of the right to exercise that or any other right or remedy at any time. SECTION 21. NON -ASSIGNMENT This Contract is not assignable. Notwithstanding any attempt to assign the Contract, Contractor shall remain fully liable on this Contract and shall not be released from performing any of the reese facility DEAAG 11 21W8 a terms, covenants, and conditions of this contract. Contractor shall be held responsible for all funds received under this Contract. SECTION 22. ORAL AND WRITTEN AGREEMENTS All oral and written agreements between the parties to this Contract relating to the subject matter of this Contract that were made prior to the execution of this Contract have been reduced to writing and are contained in this Contract. SECTION 23. AUTHORIZED RELIEF FROM PERFORMANCE (Force majeure) Department may grant relief from performance of the Contract if the Contractor is prevented from compliance and performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributed to the fault or negligence of the Contractor. The burden of proof for the need for such relief shall rest upon the Contractor. To obtain release based upon force majeure, the Contractor must file a written request with the Department. SECTION 24. VENUE For purposes of litigation pursuant to this Contract, venue shall lie in Travis County, Texas. WITNESS OUR HANDS, EFFECTIVE DECEMBER 19, 1997: Accepted and executed on behalf of the City of Lubbock leHonorableWindy Sitton, Mayor City of Lubbock ATTEST: Kayth' Parnell, City Sbtretary Accepted and executed on behalf of the Texas Department of Economic Development -A - V� - -t-'e W. Lane Lanford, Chief A inistrative Officer Texas Department of Ec9fiomic Development This Contract is not effective unless signed by the Executive Director of the Texas Department of Economic Development or by his or her authorized designee. reese facility DEAAG 12 2/5/98 RESOLUTION NO.5763 Item #27 February 12, 1998 TEXAS DEPARTMENT OF ECONOMIC DEVELOPMENT CONTRACT FOR Defense Economic Adjustment Assistance Grant STATE OF TEXAS ] COUNTY OF TRAVIS ] SECTION 1. PARTIES TO CONTRACT This contract (hereinafter referred to as "Contract') is made and entered into by and between the Texas Department of Economic Development, an agency of the State of Texas, hereinafter referred to as "Department", and the City of Lubbock (hereinafter referred to as "Contractor"). The parties hereto have severally and collectively agreed and by the execution hereof are bound to the mutual obligations and to the performance and accomplishment of the tasks described herein. SECTION 2. CONTRACT PURPOSE 4A_dCU- Contractor shall conduct, in a satisfactory mE }� rtment, an economic 'wt ' development project (hereinafter referred to 4� e capital equipment necessary to equip Building #555 (hereinafte � at Reese Center in Lubbock, Texas (formerly known as Reese Ai -ds of the Institute of Environmental and Human Health (TIEHH). T _jpport for the Project through a Defense Economic Adjustment Assis ante rant (DEAAG), as created by the 75"' Texas Legislature to provide state funding for the purpose of acquiring federal grant assistance or sharing the cost of redevelopment of communities that have been adversely affected by defense downsizing. The grant program is authorized by Senate Bill 227 of the 75"' Texas Legislature, that adds Chapter 486 to the Texas Government Code. Section 174 of the Texas Administrative Code contains the rules under which the program is implemented. This Project complements a separate economic development project in which similar funds have been provided for the renovation and improvement of the Facility (hereinafter referred to as the "Initial Renovation Project). SECTION 3. CONTRACT PERIOD This Contract shall commence on December 19, 1997, and shall terminate on August 31, 1999, upon completion of the Project as defined by Section 16 of this Contract. SECTION 4. CONTRACTOR PERFORMANCE A. Contractor shall conduct and complete the Project in a satisfactory manner as determined by Department. B. Contractor shall use grant funds solely for the purchase of capital equipment only. reese equipment DEAAG 02/5/98 C. Contractor shall comply with all applicable laws and regulations, and shall perform all activities in accordance with the terms of the Special Conditions specified in Section 16 of this Contract, and with all other terms, provisions, and requirements set forth in this Contract. D. No more than ten percent (10%) of contract funds disbursed pursuant to this Contract may be applied towards administrative costs. The acceptability of costs incurred for performances rendered hereunder shall be determined in accordance with this Contract. SECTION 6. DEPARTMENT OBLIGATIONS A. Measure of Liability In consideration of full and satisfactory performance of activities required by Section 4 of this Contract, Department will disburse DEAAG funds to Contractor in the amounts and at the times specified by the Special Conditions detailed in Section 16 of this Contract, and subject to the limitations set forth in this Section 5. 1. It is expressly understood and agreed by the parties hereto that Department's obligations under this Section are contingent upon the actual receipt of adequate state funds to meet Department's liabilities under this Contract. If adequate funds are not available to make payments under this Contract, Department will notify Contractor in writing within a reasonable time after such fact is determined. 2. Department may terminate this Contract after written notice to Contractor of noncompliance with the terms of this Contract and Contractor's failure to cure such noncompliance within forty-five (45) days. Department will not be liable for failure to make payments to Contractor under this Contract after such termination. 3. Department will not be liable to Contractor for any costs incurred by Contractor or for any performances rendered by Contractor which are not strictly in accordance with the terms of this Contract. 4. Department will not be liable for costs incurred or performances rendered by Contractor before commencement of this Contract or after termination of this Contract, except as may be specifically set forth in this Contract. B. Excess Payments Contractor shall refund to Department any sum of money paid to Contractor by Department, which Department determines is an overpayment to Contractor, or which Department determines was not spent by Contractor strictly in accordance with the terms of this Contract. No refund payment(s) may be made from local, state, or federal grant funds unless statute or regulation specifically permits repayment with grant funds. Contractor shall make such refund to Department within thirty (30) calendar days after Department requests such refund. C. Limit of liability Notwithstanding any other provision of this Contract, the total of all payments and other obligations incurred by Department under this Contract will not exceed the sum of Two Million and No/100 Dollars ($2,000,000.00). reese equipment DEAAG 2 OZW8 SECTION 6. RETENTION AND ACCESSIBILITY OF RECORDS A. Contractor shall maintain fiscal records and supporting documentation for all expenditures of funds made under this Contract in a manner that conforms to this Contract. Such records shall include data on the racial, ethnic, and gender characteristics of persons who are applicants for, participants in, or beneficiaries of the funds provided under this Contract. Contractor shall retain such records, and any supporting documentation, for the greater of four years from the end of the contract period, or the period required by other applicable laws and regulations. B. Contractor shall give the Department, its designee, or any of their duly authorized representatives, access to and the right to examine all books, accounts, records, audit reports, reports, files, documents, written or photographic material, videotape and other papers, things, or property belonging to or in use by Contractor pertaining to this Contract, including records concerning the past use of DEAAG funds. Such rights to access shall continue as long as the records are retained by Contractor. Failure to provide reasonable access to authorized Department representatives shall give the Department the right to terminate the Contract, or any portion thereof, for reason of default. All records and other information shall be retained for audit purposes until such audits or other administrative, civil or criminal matters, including but not limited to investigations lawsuits, administrative inquires and open record requests are completed. Contractor agrees to maintain such records in an accessible location and to provide citizens reasonable access to such records consistent with the Texas Public Information Act. C. Access to records under this Section 6 are subject to the Family Educational Rights and Privacy Act of 1974 (FERPA). Where made necessary by operation of FERPA, Contractor shall provide requested information from an alternative source or from appropriately redacted sources. D. Contractor shall include the substance of this Section 6 in all subcontracts. SECTION 7. MONITORING Department reserves the right to perform periodic on -site monitoring of Contractors compliance with the terms and conditions of this Contract, and of the adequacy and timeliness of Contractor's performances under this Contract. After each monitoring visit, Department will provide Contractor with a written report of the monitors findings. If the monitoring report notes deficiencies in Contractor's performances under the terms of this Contract, the monitoring report shall include requirements for the timely correction of such deficiencies by Contractor. Failure by Contractor to take action specified in the monitoring report may be cause for suspension or termination of this Contract, as provided in Sections 14 and 15 of this Contract. SECTION 8. INDEPENDENT CONTRACTOR It is expressly understood and agreed by the parties hereto that Department is contracting with Contractor as an Independent Contractor, and that Contractor, its employees and subcontractors are not employees of the Department. reese equipment DEAAG 3 02W8 SECTION 9. CONFLICT OF INTEREST A. Contractor shall ensure that no employee, officer, or agent of Contractor shall participate in the selection, award or administration of a subcontract supported by funds provided hereunder if a conflict of interest, real or apparent, would be involved. Such conflict of interest would arise when: (1) the employee, officer, or agent; (2) any member of his or her immediate family; (3) his or her partner; or, (4) any organization which employs, or is about to employ any of the above, has a financial or other interest in the firm or person selected to perform the subcontract. Contractor shall comply with Chapter 171, Texas Local Government Code. B. Except for eligible administrative or personnel costs, no employee, agent, consultant, officer, or elected or appointed official, of either Contractor or of a subcontractor, who exercises or has exercised any functions or responsibilities or is in a position to participate in decision -making or gain inside information in regard to the activities involved in the Project, shall be permitted to have or obtain a financial interest in or benefit from the Project or any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for themselves or those with whom they have family or business ties. This prohibition shall remain in effect for the duration of the prohibited relationship plus one calendar year thereafter. C. Contractor shall include the substance of this Section 9 in all subcontracts. SECTION 10. NONDISCRIMINATION AND SECTARIAN ACTIVITY A. Contractor shall ensure that no person shall on the ground of race, color, national origin, religion, sex, age, or handicap be excluded from participation in, be denied the benefits of, be subjected to discrimination under or be denied access to any program or activity funded in whole or in part with funds made available under this Contract. B. None of the performances rendered by Contractor under this Contract shall involve, and no portion of the funds received by Contractor under this Contract, shall be used in support of any sectarian or religious activity, nor shall any facilities used in the performance of this Contract be used for sectarian instruction or as a place of religious worship. C. Contractor shall include the substance of this Section 10 in all subcontracts. SECTION 11. LEGAL AUTHORITY A. Contractor assures and guarantees that Contractor possesses the legal authority to enter into this Contract, receive funds authorized by this Contract, and to perform the services Contractor has obligated itself to perform hereunder. B. The person or persons signing and executing this Contract on behalf of Contractor, or representing themselves as signing and executing this Contract on behalf of Contractor, do hereby warrant and guarantee that he, she or they have been duly authorized by Contractor to execute this Contract on behalf of Contractor and to validly and legally bind Contractor to all terms, performances, and provisions herein set forth. reese equipment DEAAG 4 02W8 C. Department will have the right to suspend or terminate this Contract if there is a dispute as to the legal authority of either Contractor or the person signing this Contract to enter into this Contract, any amendments hereto or to render performances hereunder. Contractor is liable to Department for any money it has received from Department for performance of the provisions of this Contract, if Department has suspended or terminated this Contract for reasons enumerated in this Section 11. SECTION 12. LITIGATION AND CLAIMS A. Contractor shall give Department immediate notice in writing of any action, including any proceeding before an administrative agency, filed against Contractor arising out the performance of any subcontract hereunder. Except as otherwise directed by Department, Contractor shall furnish immediately to Department copies of all pertinent papers received by Contractor with respect to such action or claim. Contractor shall notify the Department immediately of any legal action filed against the Contractor or any subcontractor, or of any proceeding filed under the federal bankruptcy code. Contractor shall submit a copy of such notice to Department within 30 calendar days after receipt. No funds provided under this Contract may be used in the payment of any costs incurred from violations or settlements of or failure to comply with federal and state regulations. B. Contractor hereby agrees to indemnify and hold harmless Department, its Governing Board members, officers, agents and employees, and the State of Texas, its officers, agents and employees from any and all losses, costs, damages, expenses, and liabilities of whatsoever nature (including, but not limited to, attorney's fees, litigation and court costs, amounts paid in settlement, and amounts paid to discharge judgments) directly or indirectly resulting from, arising out of, or related to the performance of this Contract by Contractor, or the design, construction, installation, operation, use, occupancy, maintenance, or ownership of the Facility. SECTION 13. CHANGES AND AMENDMENTS A. Except as specifically provided otherwise in this Contract, any alterations, additions, or deletions to the terms of this Contract shall be by amendment hereto in writing and executed by both parties to this Contract. B. It is understood and agreed by the parties hereto that performances under this Contract shall be rendered in accordance with the laws and rules governing Defense Economic Adjustment Assistance Grants, and the terms and conditions of this Contract. Department may, during the contract period, issue policy directives which serve to establish, interpret, or clarify performance requirements under this Contract. Such policy directives will be promulgated by Department, shall have the effect of qualifying the terms of this Contract and shall be binding upon Contractor, as if written herein, provided however that said policy directives and any amendments shall not alter the terms of this Contract so as to release Department from any obligation specked in Section 5 of this Contract to reimburse costs incurred by Contractor prior to the effective date of said amendments or policy directives. C. Any alterations, additions, or deletions to the terms of this Contract required by changes in state law or regulations are automatically incorporated into this Contract without written amendment hereto, and shall become effective on the date designated by such law or regulation. reese equipment DEAAG 5 02WS i SECTION 14. SUSPENSION A. Notwithstanding the provisions of Chapter 2251 of the Texas Government Code, in the event Contractor fails to comply with any term of this Contract, Department may, after written notice to Contractor of noncompliance with the -terms of this Contract and Contractor's failure to cure such noncompliance within forty-five (45) days, suspend this Contract in whole or in part, withhold further payments to Contractor, and prohibit Contractor from incurring additional obligations of funds under this Contract. B. A suspension under this Section 14 may be lifted only at the sole discretion of the Department upon a showing of compliance with or written waiver by Department of the term(s) in question. C. Department will not be liable to Contractor or to Contractor's creditors for costs incurred during any tern of suspension of this Contract. SECTION 16. TERMINATION A. Department will have the right, after written notice to Contractor of noncompliance with any term of this Contract and Contractor's failure to cure such noncompliance within forty-five (45) days, to terminate this Contract, in whole or in part, at any time before the date of completion specified in Section 3 of this Contract. In the case of partial termination, the written notice shall identify the portion of the Contract to be terminated. B. Upon termination or receipt of notice to terminate, whichever occurs first, Contractor shall cancel, withdraw, or otherwise terminate any outstanding orders or subcontracts related to the performance of this Contract or the part of this Contract to be terminated, and shall cease to incur costs thereunder. Department will not be liable to Contractor or to Contractor's creditors for costs incurred after the effective date of termination of this Contract. C. Notwithstanding any exercise by Department of its right of suspension under Section 14 of this Contract, or of early termination pursuant to this Section 15, Contractor shall not be relieved of any liability to Department for damages due to Department by virtue of any breach of this Contract by Contractor. Department may withhold payments to Contractor until such time as the exact amount of damages due to Department from Contractor is agreed upon or is otherwise determined. SECTION 16. SPECIAL CONDITIONS A. Contractor shall submit the following to Department prior to the initial disbursement of contract funds, which shall equal fifty percent (50%) of the total amount of funds provided by Department under this Contract (hereinafter "Contract Funds"), and within nine (9) months of the effective date of this Contract: 1. Copies of descriptions of and specifications (including cost) for all capital equipment to be purchased and installed in the Facility to meet the needs of the TIEHH, with equipment to be purchased using the first disbursement of Contract Funds indicated. neese equipment DEAAG 6 02WB 2. Copies of the following documentation: a. Memoranda from the chief financial officer of the Texas Tech University, committing funds as specified in Section 17 of this Contract; b. Lease and Furtherance of Conveyance from the U.S. Department of Defense, for min kind" funding as specified in Section 17 of this Contract. 3. A letter identifying a person authorized by Contractor for the purpose of requesting and receiving funds from the Department. 4. A copy of the administration contract, if one is contracted. B. In addition to satisfying the foregoing Special Conditions, and prior to the second disbursement of Contract Funds, which shall equal forty percent (40%) of the total Contract Funds, Contractor shall provide receipts to Department indicating that the capital equipment identified in Section 16A(1) of this Contract has been purchased. C. Contractor shall satisfy the following Special Conditions, in addition to satisfying the foregoing Special Conditions, prior to the final disbursement of the remaining ten percent (10%) of Contract Funds: 1. Contractor shall have completed all modifications and renovations to the Facility as described in plans and specifications originally submitted to the Department pursuant to the DEAAG contract between Department and the City of Lubbock for renovations to the Facility. 2. Contractor shall submit a notice of completion to Department no later than sixty (60) calendar days after the purchase and installation of all capital equipment purchased with Contract Funds. The notice of completion shall include a final Project Completion Report of all activities performed under this Contract. D. The Contractor shall provide milestones and updates on a semi-annual basis, including photographs where appropriate, prior to completion of the total Project (as marked by the release of the final ten percent (10%) of Contract Funds by the Department). 1. Contractor shall ensure that Department is provided with an assessment of the Project on a semi-annual basis, including assessments by representatives of the TIEHH of the equipment purchased. 2. The Contractor shall provide base line and semi-annual data on the impact of the Project on the local economy over a four-year period beginning with the completion of the Project. 3. The Contractor shall provide base line and semi-annual data on full-time jobs generated by the Project and data on the employment of dislocated defense and economically disadvantaged workers beginning with initial occupancy of the Facility. 4. The Contractor shall provide semi-annually, copies of payroll documents verifying the number of employees during the construction phase of the Project. Upon completion of the Project, the Contractor shall provide payroll documents indicating the number of full-time jobs created over the course of the construction phase of the Project. neese equipment DEAAG 7 0215198 5. In addition to the limitations on liability otherwise specified in this Contract, it is expressly understood and agreed by the parties hereto that if Contractor fails to submit to Department in a timely and satisfactory manner any report required by this Contract, Department may, at its sole option and in its sole discretion, withhold any or all payments otherwise due or requested by Contractor hereunder. If Department withholds such payments, it will notify Contractor in writing of its decision and the reasons therefor. Payments withheld pursuant to this paragraph may be held by Department until such time as the delinquent obligations for which funds are withheld are fulfilled by Contractor. E. In the event the Contractor fails to complete the Project or comply with any provision as specified in this Contract, the Contractor may be liable to the Department for an amount not to exceed the maximum obligation under this Contract, and may be barred from applying for or receiving additional funding under the DEAAG program until repayment is made and any other compliance or audit findings are resolved and/or the job generation requirements of this Section 16 are fulfilled. F. Job Generation Requirements 1. Within two years of the completion of the Project, as marked by the release of the final installment of Contract Funds by the Department, Contractor shall ensure and demonstrate to the Department that the completion of the Facility under this Project and the Initial Renovation Project together shall generate a minimum of sixty-eight (68) new, direct, permanent full-time jobs. 2. In the event the Contractor fails to ensure the creation and retention of new jobs as required by this Section 16, Department shall receive a recoupment of funds from Contractor equal to the lesser of: a. A prorated share of the total Contract Fund amount of two million dollars ($2,000,000.00) for each of the minimum number of new, direct, permanent full-time jobs required in this Contract (68) not created and in existence on the second anniversary of the completion of the Project; or b. Fifty percent (50%) of the total Contract Fund amount of two million dollars ($2,000,000.00). 3. For purposes of this Contract: a. Job creation and retention rates must be evidenced by satisfactory documentation, such as copies of payroll documents, as required by the Department. b. The number of jobs counted will include jobs directly related to the Project that are already filled by staff, faculty, and graduate students prior to the effective date of this Contract. C. A "full-time" job is one requiring a minimum of forty (40) hours per week. Any job requiring less than forty hours per week is considered "part-time," and shall be counted towards the minimum job creation and retention requirement in its proportion to a 40-hour work week (e.g., an employee working a 20 hour week = of a full time employee, a 30 hour week = s/ of a full-time employee). reese equipment DEAAG . 8 02/a B G. Contractor shall provide Department with copies of all final contracts and agreements from funding sources as specified in Section 17 of this Contract. SECTION 17. FUNDING SOURCES: Funding Type Specific Source Name Amount of Funding Total Federal Defense Department of Defense $1,000,000 $1,000,000 Appropriation Texas Defense Texas Department of $2,000,000 $2,000,000 Economic Adjustment Economic Development Assistance Grant Local Community Texas Tech University $1,500,000 $2,500,000 Funding Higher Education Assistance Fund/ Education and General Fund Texas Tech Health $1,000,000 Sciences Center Assistance from Other Department of Defense $1,300,000 $1,300,000 Sources Pending availability of funds from this source. Should these funds not become available from this source, Contractor shall ensure this funding amount ($1,000,000.00) is met. 2 Represents 'in kind" contribution, specifically, land, structures, improvements, and equipment. SECTION 18. SUBCONTRACTS A. Contractor shall ensure that the performance rendered under all subcontracts complies with all terms and provisions of this Contract as if such performance were rendered by Contractor. Contractor shall bear full responsibility for performance by all subcontractors. B. Contractor, in subcontracting any of the performances hereunder, expressly understands that in entering into such subcontracts, Department is in no way liable to Contractors subcontractor(s). C. Contractor assures and shall obtain assurances from all of its subcontractors where applicable, that no person shall, on the grounds of race, creed, color, disability, national origin, sex or religion, be excluded from, be denied the benefit of, or be subjected to reese equipment DEAAG 9 02F,48 y discrimination under any program or activity funded in whole or in part under this Contract. D. As subcontracts and supplier contracts become necessary to carry out the requirements of this Contract, Contractor covenants to make a good faith effort'to contract with historically underutilized (disadvantaged) businesses so certified by the State of Texas, as that term is identified by Section 481.101, Texas Government Code. Contractor shall make a good faith effort to let at least thirty percent (30%) of the total value of all subcontracts and supplier contracts for the performance of this Contract to historically underutilized (disadvantaged) businesses. SECTION 19. DEBARMENT By signing this Contract, Contractor certifies that it will not award any funds provided under this Contract to any party which is debarred, suspended or otherwise excluded from or ineligible for participation in assistance programs. Contractor further certifies that it is not ineligible under Section 231.006 of the Texas Family Code Family Code to receive the specified grant, loan, or payment and acknowledges that this Contract may be terminated and payment may be withheld if this certification is inaccurate. SECTION 20. WAIVER It is expressly understood and agreed by the parties hereto that any right or remedy provided for In this Contract shall not preclude the exercise of any other right or remedy under this Contract or under any provision of law, nor shall any action taken in the exercise of any right or remedy be deemed a waiver of any other rights or remedies. Failure to exercise any right or remedy hereunder shall not constitute a waiver of the right to exercise that or any other right or remedy at any time. SECTION 21. NON ASSIGNMENT This Contract is not assignable. Notwithstanding any attempt to assign the Contract, Contractor shall remain fully liable on this Contract and shall not be released from performing any of the terms, covenants, and conditions of this Contract. Contractor shall be held responsible for all funds received under this Contract. SECTION 22. ORAL AND WRITTEN AGREEMENTS All oral and written agreements between the parties to this Contract relating to the subject matter of this Contract that were made prior to the execution of this Contract have been reduced to writing and are contained in this Contract. reese equipment DEAAG 10 02/W8 SECTION 23. AUTHORIZED RELIEF FROM PERFORMANCE (Force maJeure) Department may grant relief from performance of the Contract if the Contractor is prevented from compliance and performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributed to the fault or negligence of the Contractor. The burden of proof for the need for such relief shall rest upon the Contractor. To obtain release based upon force majeure, the Contractor must file a written request with the Department. SECTION 24. VENUE For purposes of litigation pursuant to this Contract, venue shall lie in Travis County, Texas. WITNESS OUR HANDS, EFFECTIVE DECEMBER 19, 1997: Accepted and executed on behalf of the City of Lubbock AeHonorAable indy Sitton, Mayor City of Lubbock ATTEST: Kayth a Parnell, City Sbdretary Accepted and executed on behalf of the Texas Department of Economic Development W. Lane Lanford, Chief Admi trative Officer Texas Department of Econoffic Development This Contract is not effective unless signed by the Executive Director of the Texas Department of Economic Development or by his or her authorized designee. reese equipment DEAAG 11 021598