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July 28th. 1953.
<br />
<br />* THIS AGREEMENT made this day of May, 1953, by and between the ELIZABETH RIVER TUI~NEL
<br />DISTRICT, acting by and through the Elizabeth River Tunnel Commission, the governing body thereof, party of the
<br />first part, and the CITY OF PORTSMOUTH, a municipal corporation and political subdivision of the State ~Virginia,
<br />by and through its City Council, party of the second part.
<br />
<br />~FiTNESSETH:
<br />
<br /> WHEREAS, it is the policy of the Elizabeth River Tunnel DiStrict (hereinafter sometimes
<br /> called '~istrict")
<br /> , created by Chapter 130 of the Acts of the General Assembly of Virginia of 1942, approved March~
<br />9th, 1942, to protect the political subdivisions embraced in the area composing said District against any and all
<br />financial loss or other ~etriment that such political subdivisions may suffer, apart and aside from the incalcu-
<br />lable benefits that such and its citizenry may derive from the construction and operation of said District's pro-
<br />ject, and:
<br />
<br /> WHEREAS, at a meeting of the Elizabeth River Tunnel Commission held on the 10th day of Febru-
<br />ary, 1950, expressed in a resolution unanimously adopted (a copy of which is attached hereto), it was the opinion
<br />of the Commission that the cities of Norfolk and Portsmouth should be compensated relative to the loss of taxable
<br />values by reason of the purchase or condemnation of real property in said hities, theretofore privately owned, and
<br />also compensated for expense which said e.ities"~will incur ~o maintain certain streets and regulate traffic inci-
<br />dental to the District's project, and further expressing in said resolution that "to the extent now or hereafter
<br />authorized by law, the Commission agrees to pay, without interest, to the City of Norfolk a~d to the City of
<br />Portsmouth, pro rata, in compensation for the loss of taxable values and incidental costs of streets and traffic
<br />regulation in saidcities, the following:
<br />
<br />(a) To the City of Portsmouth - $500,000.00 ........ ", and;
<br />
<br /> WHEREAS, by Chapter 490 of the Acts of the General Assembly of Virginia of 1952, it was pro -
<br />vided that tolls upon ~aid District's project may be continued upon cert~i~ conditions, among others "to acquire
<br />funds with which to re imburse the Cities of Portsmouth and Norfolk for the loss of taxable values and incidental
<br />costs of streets and traffic controls, and damage to utilities to be sustained by said cities by reason of the
<br />construction of said project to such extent as may be mutually agreed "
<br /> upon , and;
<br />
<br /> WNEREAS, by a certain trust indenture dated for convenience of reference as of the 1st of
<br />February, 1950, by and between the Commission and the National Bank of Commerce of Norfolk, Norfolk, Virginia,
<br />Trustee, there have been issued Twenty-Throe Million Dollars ($23,000,000.00) of revenue bonds of the Elizabeth
<br />River Tunnel District due February t, 1980, and bearing interest ar the rate of Three and one-half per centum
<br />(3½%) per annum until paymen~ of such principal sum, and with certain other and further provisions for the re-
<br />financing and/or call and redemption thereof as set forth in said trust indenture to which reference is hereby
<br />made, and a copy thereof being hereto attached and made a par~ hereof, and;
<br />
<br /> WHEREAS, by two certain contracts dated May 1, 1950, said District did undertake ro pay to
<br />the County of Norfolk and to the City of Portsmouth, respectively; withou~ priority Of~ one'ever the other, the
<br />sum of Two Million Dollars'($$;O00 000'~00)each, upon the terms and condifib~s:as set forth in said contracts
<br />which are public documents, the contents of which are known to the parties t6 ibis agreement;
<br />
<br /> NOW, THEREFORE, in consideration of the premises and in furtherance of the policy of the
<br />Elizabeth River Tunnel District, it is agreed:
<br />
<br /> I. That subject ahd junior to its obligations and/'~r the refinahcing of'said Bond indebted-
<br />ness, o~ the issuance of supplementary bonds under the terms of said trust indemture, and subject r~ the paymen~
<br />and/or the refinancing of the above recited obligations of May 1, 1950, to the City of Portsmouth and County of
<br />Norfolk, respectively, the Commission does hereby agree ~o pay to the City of Portsmouth, without interest, the sum
<br />of Fo~r'~u~dred Ninety-one Thousand TWo Hundred Twenty-seven Dollars and Sixty-eight Cents ($491,227.68), (Same
<br />being the sum of $500,000.00 as hereinabove mentioned in said Commission's resolution of February 10, 1950, less
<br />the amoun~ of $8,772.32 her~ofore paid by the Elizabeth River Tunnel District) the payment of which is to begin
<br />slx (6) m~nths after the paymeu~ of the last obligation due said City of Portsmouth and County of Norfolk under
<br />said contracts of May 1, 1950, which said payments are deferred under the terms of their respective agreements
<br />until the full and final payment of all bonds, coupons, debts, obligations under the above-mentioned trust inden-
<br />ture and any supplemental trust indenture issued pursuant to Article XI thereof. The amount 'of such payments in
<br />discharge.of this agreement shall be forty (40%) per cent (the other sixty (60%) per cent being payable to the
<br />City of Norfolk under an agreement of even date) of the net revenue derived from tolls at the rate hereinafter
<br />provided.
<br />
<br /> "Net Revenue" as used in this agreement shall mean the gross revenue from tolls, less current
<br />expenses and maintenance, including reserve for maintenance. The term "current expenses" shall mean the Commis -
<br />sion's reasonable and necessary current expenses of maintaining, repairing and operating the whole project which
<br />shall include, without limiting the generality of the foregoing, all ordinary ~and usual expenses of maintenance
<br />and repair which may include expenses not annually recurring, all administrative expenses, insun~_anee and engineer-
<br />ing expenses relating to maintenance, repair and operation. "Maintenance" and "reserve for m~intena~ee "not in -
<br />eluded in the definition of '%urrent expenses" shall include all actual current maintenance of the project and its
<br />appurtenances, including a reserve fund as provided for by the Commission's then accounting methods.
<br />
<br /> 2. Said forty (40%) per cent of net revenue computed in the manner above se~ forth shall be
<br />payable to the City of Porlsmouth each six (6) months after the first payment is made as provided for above until
<br />the total amount payable hereunder ha~ been discharged. The Commission agrees that£he average rate of toll charge,
<br />during the last year prior to the full and final payment of its obligations under the ~rust indenture shall con -
<br />tinue in effect until the obligatinn hereunder shall have been fully paid and discharged, without interest,
<br />
<br /> 3. The City of Portsmouth agrees that in consideration of the obligation of the District
<br />hereunder it will not claim or levy against the Elizabeth River Tunnel District, directly or indirectly, any
<br />charge, tax, debt, franchise or fee for incidental costs of streets, traffic control and street maintenance, or
<br />loss of ta~xable values by reason of the construction and maintenance of the Commission's project as define~ in
<br />said Chapter 130 of the Acts of the General Assembly of Virginia of 1942. -
<br />
<br /> 4. No lien, mortgage or rights in rem of any name or nature whatsoever in law or in equity
<br />against the District or its project, or any part thereof, are g~ven or may be acquired under the ~erms of this
<br />agreement. The sole right to enforce this obligation shall be against the net revenue from tolls collected at
<br />
<br />
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