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Item 4ECity of Southlake, Texas MEMORANDUM November 18, 2008 To: Shana Yelverton, City Manager From: Robert H. Price, P.E., Public Works Director Subject: Approve an interlocal agreement with the City of Grapevine for provision of sanitary sewer services to the Simmons Service Area for a period of 99 years Action Requested: Approve an interlocal agreement with the City of Grapevine for provision of sanitary sewer services to the Simmons Service Area for a period of 99 years. Background Information: City Staff has been in discussions with the Grapevine City Staff for the past few months regarding adjustments to our common boundary in the vicinity of NW Highway, Park Blvd. and SH 114. The goal of this adjustment is to clean up an erratic boundary line, thereby eliminating potential confusion of emergency responders to the respective city's limits. The agreement to adjust the boundary is comprised of a number of elements. This item details the provisions of Grapevine providing sanitary sewer services to the Simmons Service Area for a period of 99 years. Grapevine currently provides sanitary sewer service to this area of Southlake under a September 1998 agreement that has expired. The original 1998 agreement with Southlake to serve the Simmons Forest Addition area, located south of Dove Road and west of Winding Creek Addition, established a limit of 40 homes in exchange for Southlake serving 40 homes in the Lonesome Dove area of far northwest Grapevine. This service was never used by Grapevine because they subsequently constructed a sanitary sewer network and new lift station in the area. Southlake has the potential for 50 homes in the Simmons Forest Addition area under its current zoning and this agreement will provide for that service. Financial Considerations: It is staff's opinion that this agreement is in the best interest of citizens of Grapevine and Southlake as it will provide Southlake a significant cost avoidance estimated in 2007 dollars at $ 605,000 as well as annual maintenance cost of maintaining a lift station and force main. Citizen Input/ Board Review: None Legal Review: The City Attorney's office has reviewed the proposed interlocal agreement. Alternatives: The City Council may approve or deny this Agreement. Supporting Documents: Interlocal Agreement with Grapevine with Exhibits Staff Recommendation: Approve the interlocal agreement with the City of Grapevine for provision of sanitary sewer services to the Simmons Service Area for a period of 99 years. Staff Contact: Robert H. Price, P. E., Public Works Director INTERLOCAL AGREEMENT FOR PROVISION OF SANITARY SEWER STATE OF TEXAS § COUNTY OF TARRANT § This Agreement is entered into by and between the City of Grapevine, Texas, a home rule municipality located in Tarrant County, Texas, operating herein by and through its duly authorized Mayor, William D. Tate, and the City of Southlake, Texas, a home rule municipality located in Tarrant County, Texas, operating herein by and through its duly authorized Mayor, Andy Wambsganss. A. DEFINITIONS 1. "Force majeure" is an act of God or a public enemy, war, riot, civil commotion, insurrection, terrorism, strike (unless caused by acts or omissions of the party asserting same), governmental or de facto governmental regulatory or eminent domain action (unless caused by acts or omissions of the parry asserting same), fire, drought, explosion, flood, or other natural catastrophe. 3. "Grapevine" is the City of Grapevine, a home -rule municipality located in Tarrant County, Texas. 4. " Southlake" is the City of Southlake, a home -rule municipality located in Tarrant and Denton Counties, Texas. 5. "The Simmons Service Area" is that area approximately 72.8 acres in size, commonly referred to as the Simmons Forest Addition, currently consisting of the area defined by Exhibit A attached hereto. B. RECITALS WHEREAS, Southlake has permitted development of the Simmons Service Area, and desires to support and facilitate such development through the provision of essential municipal utility services, including sanitary sewer collection facilities; and WHEREAS, while Southlake has constructed or will construct the sanitary sewer collection facilities within the Simmons Service Area, the Simmons Service Area flows naturally into Grapevine, and Southlake currently does not have the facilities necessary to transport the sanitary sewer discharge into Southlake's wastewater processing facilities; and WHEREAS, Grapevine has the sanitary sewer facilities and wastewater processing capacity to accept the flow from the Simmons Service Area; and WHEREAS, Grapevine is willing to accept the flow from the Simmons Service Area on the same terms as other customers of the Grapevine sanitary sewer system, and is currently providing such service under a previous inter -local agreement dated September 15, 1998; and WHEREAS, consideration for Grapevine providing such service would be provided by the revenue generated from the fees for such service generated by the residential customers located in the Simmons Service Area; and WHEREAS, Chapter 791 of the Texas Government Code (the "Inter -local Cooperation Act ") authorizes municipalities to enter into interlocal agreements for the providing of governmental functions and services, including but not limited to, sanitary sewer collection services; and WHEREAS, the parties hereto deem it to be to their mutual benefit and to the benefit of the health, safety and welfare of their respective citizens to enter into this Inter -local Cooperation Agreement to provide for the continued provision of sanitary sewer services to the Simmons Service Area, and the extension of such service to all of the lots in such area, under the terms and conditions set forth herein; NOW THEREFORE, in consideration of the foregoing, and under the terms and conditions hereinafter set forth, Grapevine and Southlake, for good and valuable consideration, specifically, the mutual promises and agreements contained herein, do hereby contract, covenant and agree as follows: C. TERM OF AGREEMENT AND CONDITIONS PRECEDENT That Grapevine and Southlake do hereby covenant and agree as follows: 1. Purpose. The purpose of this Agreement is to provide for the efficient provision of sanitary sewer collection services by Grapevine to defined area per attached Exhibit "A" located in the Simmons Service Area, not to exceed 50 residential lots, to which Southlake cannot currently provide such sanitary sewer service due to a lack of sufficient nearby collection lines. This Interlocal Agreement takes the place of the prior Agreement between the two cities which is attached hereto as Exhibit B. 2. Term. The term of this Agreement shall be for ninety -nine years from the effective date of this Agreement. The Agreement shall continue thereafter indefinitely unless one of the parties provides written notice to the other party of the notifying party's intent to terminate the Agreement. In the event such notice is given, this Agreement will Page 2 terminate two years after the date such notice is given to the non - terminating parry, or such earlier time as may be agreed by the parties. I Grapevine Agreement to provide sanitary sewer service to Simmons Service Area. a. Agreement to provide sanitary sewer collection service. During the term of this Agreement, Grapevine agrees to accept the flow from the sanitary sewer system for the Simmons Service Area, on the same terms and conditions that Grapevine provides to its residents and other customers, except as provided herein. The flow will be accepted by Grapevine at the Dove Lift Station No. 2. b. Repair and monitoring responsibilities. Grapevine shall be responsible for monitoring and repairing within a reasonable time any of the sanitary sewer system facilities located in Grapevine ( Southlake has responsibility to maintain up to where the sanitary sewer flow enters into the City of Grapevine Facility) necessary to accept the flow from the sanitary sewer system for the Simmons Service Area. Grapevine agrees to maintain the sanitary sewer system and wastewater facilities located in Grapevine necessary to accept the sanitary sewer flow from the Simmons Service Area so as to insure that quality standards established by applicable ordinances, regulations, and statutes are met, and Grapevine shall be liable to Southlake for any damages arising out of the provision of the services described herein or the failure to provide such services herein, provided, however, that nothing contained herein shall be construed as expanding Grapevine's liability under existing law, as imposing any greater duties on Grapevine than are otherwise imposed upon it as a municipal corporation under applicable law, or as waiving any governmental immunity Grapevine is accorded under applicable law, or waiving any damage limitations or caps imposed by applicable law. Southlake shall be responsible for monitoring and repairing within a reasonable time any of the sanitary sewer system facilities located in Southlake necessary to collect the sanitary sewer flow from the Simmons Service Area and discharge it into Grapevine's sanitary sewer system facilities located in Grapevine. Southlake agrees to maintain the sanitary sewer system facilities located in Southlake necessary to collect the sanitary sewer flow from the Simmons Service Area and deliver it to Grapevine so as to insure that quality standards established by applicable ordinances, regulations, and statutes are met, and Southlake shall be liable to Grapevine for any damages arising out of the provision of Southlake's services described herein or the failure to provide such services herein, provided, however, that nothing contained herein shall be construed as expanding Southlake's liability under existing law, as imposing any greater duties on Southlake than are otherwise imposed upon it as a municipal corporation under applicable law, or as waiving any governmental immunity Southlake is accorded Page 3 under applicable law, or waiving any damage limitations or caps imposed by applicable law. C. Charges for Sanitary Sewer Service. Southlake shall be charged for the sanitary sewer service and shall pay to Grapevine all those charges applicable to customers within the Grapevine corporate limits at the same rate charged to customers within the Grapevine corporate limits. The rate shall apply to tap charges, impact fees, service charges, consumption charges, deposits and all other charges which a customer in Grapevine would be required to pay. Grapevine shall notify the City of Southlake within a reasonable period of time (60 days) upon a change to any of the requisite rates. Grapevine's failure to notify Southlake does not relieve Southlake from the responsibility of paying for the aforementioned services in accordance with the appropriate rate structure at the time services are provided. d. Billing and collection responsibilities. Southlake shall read the meters for the lots located within the Simmons Service Area on a monthly basis, bill the account holders in the Simmons Service Area the rates set by Southlake for sanitary sewer service, and provide Grapevine with a spreadsheet indicating the dates the meters were read and the total gallons used and the amount Southlake billed for water and sanitary sewer services. Grapevine will then invoice Southlake for the sanitary sewer portion only based upon Grapevine's rates, and Southlake will promptly pay Grapevine the invoiced amount. Southlake will bear the responsibility for collecting the amounts due from the account holders located within the specified service area. e. Impact Fees. New connections served by the City of Grapevine under this agreement shall be charged the applicable Grapevine Wastewater Impact Fee in effect at the time of the connection. L Cooperation regarding repairs. Southlake and Grapevine agree to cooperate in any efforts to repair the sanitary sewer facilities of either Southlake or Grapevine serving the Simmons Service Area, including providing necessary equipment, traffic control and barricades in the respective cities. g. Funding. Each parry providing services under this agreement shall pay for those services from current revenue available to that parry. 4. Regulatory control. It is understood and agreed by the parties hereto that the development regulations of the city in which facilities are located shall be applicable to such facilities. Page 4 5. No joint enterprise. No provision of this Agreement shall be construed to create any type of joint ownership of any property, nor shall same be deemed to create a partnership, joint venture or other agreement which would be construed as granting partial control, ownership of or equity in the facilities described herein. It is understood and agreed that the facilities operated by Southlake shall be owned and controlled by Southlake, and that the facilities operated by Grapevine shall be owned and controlled by Grapevine. Furthermore, the parties hereto acknowledge and agree that the doctrine of respondeat superior shall not apply between the cities. 6. Notice. Any notice, communication or request provided or permitted to be given by either parry to the other party must be in writing and addressed as follows: If to Southlake: City of Southlake Attention: City Manager 1400 Main Street Southlake, Texas 76092 If to Grapevine: City of Grapevine Attention: City Manager P.O. Box 95104 Grapevine, Texas 76099 or to such other addresses as may be provided for in writing from time to time. 7. No waiver of immunity or defenses. This Agreement is made pursuant to Chapter 791 of the Texas Government Code. It is expressly understood and agreed that in the execution of this Agreement, neither city waives nor shall be deemed hereby to waive any immunity or defense that would otherwise be available to it against claims arising in the exercise of governmental powers and functions. This section shall be liberally construed to carry out the intent of the city councils of Southlake and Grapevine, and the cities do hereby invoke said governmental immunity to the extent possible under the law. 8. No third party beneficiaries. It is understood by the parties that this Agreement is entered into for the mutual convenience and purposes of the cities which are parties hereto, and it is the parties' intent that no other parties shall be construed as beneficiaries of this Agreement, including the owners, residents, or operators of property located in either the Grapevine Area or the Southlake area, regardless of whether such persons are anticipated to be customers under this Agreement. Page 5 9. Entire Agreement. This Agreement, including any exhibits attached and made a part hereof, is the entire Agreement between the parties and supersedes all prior or contemporaneous understandings or representations, whether oral or written, respecting the subject matter herein. 10. Venue. This Agreement shall be construed under the substantive laws of the State of Texas, without reference to its choice of law provisions, and venue for any action arising under state law under this Agreement shall be the District Courts of Tarrant County, Texas. If any action relating to this Agreement is not properly brought in state court, venue shall be the United States District Court for the Northern District of Texas. 11. Severability. In the event any section, subsection, paragraph, subparagraph, sentence, phrase, or word herein is held invalid, illegal, or unenforceable, the balance of this Agreement shall be enforceable, and shall be read as if the parties intended at all times to delete said invalid section, subsection, paragraph, subparagraph, sentence, phrase, or word. In such event there shall be substituted for such deleted provision a provision as similar in terms and in effect to such deleted provision as may be valid, legal and enforceable. 12. Authority. This Agreement was authorized by the Southlake City Council at its regular meeting on the day of , 20 , authorizing the Southlake City Manager to execute this Agreement on behalf of the City of Southlake, and by the Grapevine City Council at its regular meeting on the day of , 20 , authorizing the Grapevine City Manager to execute this Agreement on behalf of the City of Grapevine. 13. Section or Other Headings. Section or other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 14. Amendment. This Agreement may only be amended, altered, or revoked by written instrument signed by the parties to such amendment. 15. Interpretation. Regardless of the actual drafter of this Agreement, this Agreement shall, in the event of any dispute over its meaning or application, be interpreted fairly and reasonably, and neither more strongly for nor against any parry. 16. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. 17. Force Majeure. If, by reasons of Force Majeure, any parry will be rendered wholly or partially unable to carry out its obligations under this Agreement after its effective date, then such parry will give written notice of the particulars of such Force Majeure to the other parry or parties within a reasonable time after the occurrence of such event. The Page 6 obligations of the party giving such notice, to the extent affected by such Force Majeure, will be suspended during the continuance of the inability claimed and for no longer period, and any such parry will in good faith exercise its best efforts to remove and over come such inability. 18. Mutual Assistance. The parties hereto agree to take all reasonable measures which are necessary or appropriate to carry out the terms and provisions of this Agreement and to aid and assist each other in carrying out such terms and provisions. 19. Recitals. The recitals to this Agreement are incorporated herein, and are intended to aid in the interpretation of this Agreement. 20. Exhibits. All exhibits to this Agreement are incorporated herein by reference for all purposes wherever reference is made to the same. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK Page 7 EXECUTED this day of , 2008. CITY OF GRAPEVINE IM Bruno Rumbelow, Grapevine City Manager ATTEST: Linda Huff, Grapevine City Secretary APPROVED AS TO FORM AND LEGALITY: John F. Boyle, Jr., Grapevine City Attorney EXECUTED this day of 1 20 CITY OF SOUTHLAKE IM Shana Yelverton, Southlake City Manager ATTEST: Lori Payne, Southlake City Secretary APPROVED AS TO FORM AND LEGALITY: Tim G. Sralla, Southlake City Attorney Page 8 �568 t ExhibiA Y�( 554 lb 1 556 5g� Q -� D � L � �, 558 p 00 b 58 dr✓� � 00 BRQ_O-kW -&bD L N 92 LT1 594 5g6 L& -% i \ � 00 LID °� 6 '0 6 , .S.� P V, 01 ;� / co �� \ /fir I 1 �, L C) 606 1 -- ao Co 6&0 8 o a� �. °' �0 (s� ^' �� 586 C. 00 624 CD �I �0 626 8 (;r� 5� � 596 � o o co l 6p`b N ° o ' �� t 6 ro CNI CD i�0 co N ITT OF Simmons Sewer 2 - foot Contours 10' SOUTH LAKE :::::] Parcel Lines W +E S ervice Area Map = 1 Adjacent City Parcel Lines S Simmons Addn Drainage Area Scale - 1:4800 November 18 2008 Shaded Area - 72.8 Acres 1 inch= 400 feet STATE OF TEXAS § COUNTY OF TARRANT § INTERLOCAL AGREEMENT FOR SANITARY SEWER SERVICES "This Interlocal Agreement for Sanitary Sewer Services (the "Agreement" ) is made and entered into by and between the City of Grapevine, Texas, a municipal cor o located in Tarrant County, Texas, ( "Grapevine ") and the City of Southlake, Texas, municipal corporation located in Tarrant County Texas ( "Southlake "). WHEREAS, Grapevine and Southlake desire to enter into an Interlocal Agreement at the request of Southlake to provide sanitary sewer service to land more particularly described in Exhibits A and B and C; and - WHEREAS, TEX, GOVT. CODE ANN. § 7'9 et. seq,, as amended (the „ Act ") provides authorization for municipalities to contract with one another for the performance of governmental functions and services under the terms of the Act; and WHEREAS, Grapevine has sufficient capacity in its treatment facility to accommodate Southlake's request that the City of Grapevine provide sanitary sewer service; and WHEREAS, Southlake has sufficient capacity in its sanitary sewer facilities to accommodate sewer service from Grapevine; and WHEREAS, both Grapevine and Southlake have current revenues available and allocated to cover their respective performance requirements under this Agreement, and WHEREAS, it would be to the benefit of both parties for Grapevine to provide this sanitary sewer service under the terms of this Agreement; and WHEREAS, it would be to the benefit of both parties for Southlake to provide this sanitary sewer service under the terms of this Agreement; and WHEREAS, it is mutually advantageous to both parties to enter into this Agreement. WITNESSETH: NOW, THEREFORE, for and in consideration of the mutual covenants, terms and conditions set forth herein, and the mutual benefits to each party, the receipt and sufficiency of which are hereby acknowledged, Grapevine and Southlake hereby contract, covenant, warrant and agree as follows: 1. ADOPTION OF PREAMBLE All of the matters stated in the preamble of this Agreement are true and correct and are hereby incorporated into the body of this Agreement as though fully set forth in their entirety herein. II. CONNECTIONS 1. Grapevine agrees to provide sanitary sewer service to Southlake as shown on Exhibits A and B. 2, Southlake agrees to provide sanitary sewer service to Grapevine as shown on Exhibit C. 3. Southlake agrees that only 40 Single Family Residential connections are to be made and served by Grapevine's sewer facilities. 4. Grapevine agrees that only 40 Single Family Residential connections are to be made and served by Southlake's sewer facilities. 5. Sbuthlake agrees that no additional facilities shall be connected without the prior approval of the Grapevine City Council and a written amendment to this Agreement. 6. Grapevine agrees that no additional facilities shall be connected without the prior approval of the Southlake City Council and a written amendment to this Agreement.. Ili. CHARGES FOR SANITARY SEWER SERVICE 'l. Southlake shall be charged for the sanitary sewer service and shall pay to Grapevine all those charges applicable to customers within the Grapevine corporate limits at the same rate charged to customers within the Grapevine corporate limits. The rate shall apply to tap charges, pro rata charges (if any) services charges, consumption charges, deposits and all other charges which a customer in Grapevine would be required to pay, 2. Grapevine shall be charged for the sanitary sewer service and shall pay to Southlake all those charges applicable to customers within the Southlake corporate limits at the same rate charged to customers within the Southlake corporate limits. The rate shall apply to tap charges, pro rata charges (if any) services charges, consumption charges, deposits and all other charges which a customer in Southlake would be required to pay, IV. METER READING Except as otherwise provided below, all meter readings to establish or verify the flow of sewage from Southlake to Grapevine shall be made by the representatives of Southlake., Consequently, all meter readings to establish or verify the flow of sewage from Grapevine to Southlake shall be made by the representatives of Grapevine. Sewer flow for each city shall be calculated from monthly meter readings provided to the serving city on or before the 9 r' of each month. Except as otherwise provided herein, Southlake and Grapevine shall each be responsible for maintenance of the facilities within their respective boundaries: V. BILLING 1 . Grapevine shall bill Southlake directly for the sanitary sewer service provided pursuant to this Agreement. 2. Southlake shall be responsible, at its own cost and expense, for billing individual users of Grapevine's sanitary sewer system. 3" Southlake shall bill Grapevine directly for the sanitary sewer Service provided pursuant to this Agreement. 4. Grapevine shall be responsible, at its own cost and expense, for billing individual users of Southiake's sanitary sewer system. VI. REMEDIES 1. The serving city may discontinue the sanitary sewer service to the service recipient city for any violation or breach by the provider of the terms of this Agreement until the violation or breach has been cured to the satisfaction of the serving city, 2. Grapevine and Southlake may discontinue the sanitary sewer service for any violation by the service recipient city of the provisions of the serving city until the violation has been cured to the satisfaction of the serving city. 3. Except for the failure to pay charges when due and payable, and except for any violation by the service recipient city of any of the provisions, terms or conditions of the service city's Code of Ordinances or any state or federal law relating to industrial wastes, prior to discontinuing the sanitary sewer service, the service city agrees to provide the service recipient city an opportunity to remedy the violation to the service city's satisfaction within thirty (30) days of the date written notice of the violation is mailed to the service recipient city. If the violation is the failure to pay charges when due and payable, the service city may discontinue sanitary sewer service immediately upon the occurrence of the violation until payment is made. If the violation is a violation of a provision, term of condition of the service city's Code of Ordinances or any state or federal law relating to industrial wastes, prior to discontinuing sanitary sewer, the service city agrees to provide the service recipient city an opportunity to remedy the violation to the service city's satisfaction within such period of time as the service city determines is reasonable considering the nature and extent of the violation, which time period shall be spelled out in a written notice of the violation and which time period shall commence to run upon the mailing of the notice of violation to the service city recipient. 4. In addition to discontinuance of the sanitary sewer service, the service city may pursue all legal and equitable remedies, including but not limited to, injunctive relief and the recovery of damages and civil or criminal penalties. The right of the service city to pursue all legal and equitable remedies shall survive the termination of this Agreement. VII. TERMS This Agreement shall be for a term of ten (10) years commencing on the 15th day of September _ , 19 98 Vill. NOTICES Any notice required to be given under this Agreement shall be deemed to have been adequately given if deposited in the United States mail in an envelope with sufficient postage and properly addressed to the other party as follows° TO GRAPEVINE: City of Grapevine P.O. Box 95104 Grapevine, Texas 76099 Attn, City Manager TO SOUTHLAKE: City of Southlake 667 North Carroll Avenue Southlake, Texas 76092 Attn: City Manager A change of address may be made by either party upon the giving of ten (90) days prior written notice. IX. TERMINATION Grapevine may terminate this Agreement prior to the end of the term upon any of the following conditions'. A. Grapevine has discontinued sanitary sewer service to Southlake on two (2) or more occasions; or B. Southlake has violated any of the provisions, terms or conditions of Article 11, Division 3, Chapter 25 of the Grapevine Code of Ordinances or any state or federal law relating to industrial wastes which violation has not been cured to the satisfaction of Grapevine within such period of time as Grapevine determines is reasonable considering the nature and extent of the violation, which time period shall be spelled out` in a written notice of violation and which time period shall commence to run upon the mailing of the notice of violation to Southlake. C. Grapevine's principle responsibility is to provide sanitary sewer service to its residents and property owners. In the event the City Council of Grapevine determines that the sanitary sewer capacity that is the subject of this Agreement is required to provide the necessary requirements for its residents and property owners, Grapevine reserves the right to terminate this Agreement by giving written notice to Southlake at least thirty (30) days in advance of the termination. 2. Southlake may terminate this Agreement prior to the end of the term upon any of the following conditions: A., Southlake has discontinued sanitary sewer service to Grapevine on two (2) or more occasions; or B, Grapevine has violated any of the provisions, terms or conditions of the Southlake Code of Ordinances or any state or federal law relating to industrial wastes which violation has not been cured to the satisfaction of Southlake within such period of time as Southlake determines is reasonable considering the nature and extent of the violation, which time period shall be spelled out in a written notice of violation and which time period shall commence to run upon the mailing of the notice of violation to Grapevine. C, Southlake`s principle responsibility is to provide sanitary sewer service to its residents and property owners. In the event the City Council of Southlake determines that the sanitary sewer capacity that is the subject of this Agreement is required to provide the necessary requirements for its residents and property owners, Southlake reserves the right to terminate this Agreement by giving written notice to Grapevine at least thirty (30) days in advance of the termination. 3. The parties may terminate this Agreement at any time by mutual written consent. 4, Upon the termination of this Agreement, each party shall have the absolute right to terminate and discontinue the sanitary sewer service to the other party and shall be entitled to take any and all action necessary to effectuate the termination and discontinuation of sanitary sewer service, X. MISCELLANEOUS PROVISIONS 1: This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, and assigns. 2. This Agreement constitutes the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting the subject matter hereof. 3. No amendment, modification or alteration of the terms hereof shall be binding unless the same be in writing, dated subsequent to the date hereof and duly executed by the parties. 4. This Agreement may be executed concurrently in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, 5. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 6. 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