HomeMy WebLinkAboutO-1994-2005
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ORDINANCE NO. 94- 2005
AN ORDINANCE APPROVING AND AUTHORIZING AN AGREEMENT BETWEEN THE
CITY OF LA PORTE AND LINDA DARNELL WITT, RELATING TO THE CONCESSION
OPERATION OF SYLVAN BEACH PIER, INCLUDING PROVISIONS RELATING TO
DIVISION AND PAYMENT OF GROSS RECEIPTS AND PIER REVENUES, REPAIRS,
INSURANCE, AND INDEMNIFICATION; MAKING VARIOUS FINDINGS AND
PROVISIONS RELATING TO THE SUBJECT; FINDING COMPLIANCE WITH THE
OPEN MEETINGS LAW; PROVIDING AN EFFECTIVE DATE HEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE:
Section 1. The City Council hereby approves and authorizes the contract,
agreement, or other undertaking described in the title of this ordinance, in substantially
the form as shown in the document which is attached hereto and incorporated herein by
this reference. The City Manager is hereby authorized to execute such document and
all related documents on behalf of the City of La Porte. The City Secretary is hereby
authorized to attest to all such signatures and to affix the seal of the City to all such
documents.
Section 2. The City Council officially finds, determines, recites, and
declares that a sufficient written notice of the date, hour, place and subject of this meeting
of the City Council was posted at a place convenient to the public at the City Hall of the
City for the time required by law preceding this meeting, as required by the Open
Meetings Law, Chapter 551, Texas Government Code, Texas Revised; and that this
meeting has been open to the public as required by law at all times during which this
ordinance and the subject matter thereof has been discussed, considered and formally
acted upon. The City Council further ratifies, approves and confirms such written notice
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ORDINANCE 94- 2005
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and the contents and posting thereof.
Section 3. This Ordinance shall be effective from and after its passage and
approval, and it is so ordered.
PASSED AND APPROVED, this the 1~-fIt day of D.e.c e.m hllr ,1994.
CITY OF LA PORTE
BY:~~#~
' orman L. Ma one
Mayor
AlTEST:
~LJ
Sue Lenes,
City Secretary
APPROVED:
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COMMISIONER
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ADMINISTRATION BUILDING
1001 PRESTON, ROOM 950
HOUSTON, TEXAS 77002
(713) 755-6220
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December 8, 1994
Mr. Stephen L. Barr
City of La Porte
P. O. Box 1115
La Porte, TX. 77572-1115
Dear Mr. Barr:
Please be advised that the concession agreement between the
City of La Porte and Linda Darnell Witt for the operation of
the Sylvan Beach Pier was approved by Commissioners Court on
December 6, 1994.
If you should have any questions, please don't hesitate to
call me at 479-7770.
ouie Ditta
Administrative Assistant
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Mr. Stephen L. Barr
City of La Porte
P.O. Box 1115
La Porte TX 77572-1115
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COMMISSIONER
ADMINISTRATION BUILDING
1001 PRESTON, ROOM 950
HOUSTON, TEXAS 77002
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CONCESSION AGREEMENT
THE STATE OF TEXAS !i
!i
COUNTY OF HARRIS !i
This Agreement, made and entered into by and between the City of La Porte,
a body corporate and politic under the laws of the State of Texas, hereinafter referred
to as the "City", and Linda Darnell Witt, hereinafter referred to as the
"Concessionaire" .
WITN,ESS,ETH
WHEREAS, the Concessionaire desires to assist the City in providing a fishing
pier to be made available for the enjoyment and benefit of the public at Sylvan Beach
Park, and
WHEREAS, The Concessionaire has requested the City to use said pier for the
purposes hereinabove described, to be used by the general public, and
WHEREAS, The City desires to provide quality recreational opportunities for the
general public, and desires to permit the Concessionaire to use the said pier according
to the rules, covenants, and conditions hereinafter stated,
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
That in consideration of the mutual covenants and agreements to both parties,
it is agreed as follows:
I.
Subject to the terms and provisions herein set forth, the City has granted and
by these presents grants to the Concessionaire, for a term of three (3) years,
beginning Januarv 3. 1995, and ending (unless sooner ended in accordance with the
provisions hereof) Januarv 3. 1998, with an option for the City to renew ~or two (2)
additional one (1) year terms, the right and privilege to operate the proposed 1,100
foot fishing pier at Sylvan Beach Park, said fishing pier being more particularly
described on Exhibit "A" attached hereto.
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Concession Agreement. page 1 of 9
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II.
The Concessionaire and his employees shall operate the fishing pier concession
in Sylvan Beach Park in its entirety and the Concessionaire shall make no sale, exchange
or assignment of rights under this Agreement, either in whole or in part, without the prior
written approval of the City Council of the City of La Porte.
III.
As consideration for this concession, the Concessionaire shall pay, without
demand, a monthly concession fee in an amount equal to two-thirds (2/3) of the gross
user fees collected for the use of the pier. Gross User fee is defined as the total gate
receipts less any federal, state, and/or local taxes. The concession fee will be due and
payable on or before the 10th day of each month for the preceding month's activity. The
Concessionaire agrees to maintain documentation, on forms to be developed and
provided by the City and adhere to guidelines established by the City, of daily use and
payments received. The Concessionaire agrees to furnish to the City any and all reports
which City may require covering all receipts and income of the concession, and agrees
that her books and other records may be examined by the City or City Auditor or any
other officer of the City at any reasonable time. The Concessionaire agrees to keep and
maintain said records and books in La Porte. The Concessionaire may, on a daily basis,
report and deposit with the City all admission revenues generated by the pier operation.
The City shall remit to the Concessionaire the amount due to the Concessionaire pursuant
to this agreement on a monthly basis.
IV.
The Concessionaire shall operate and manage the fishing pier. Admission rates
will be set through negotiation with the City and shall be reasonable and equal to those
charged by concessionaires in comparable facilities. The Concessionaire agrees to
conform to the rates as set. The Concessionaire shall post a schedule of such fees,
rates, and prices at all times in a conspicuous place on the premises.
V.
During the term of this Agreement, Concessionaire's and City's obligations
hereunder, in addition to others specified herein, shall be as follows:
(a) The Concessionaire will abide by all applicable federal, state, and
municipal laws, ordinances, rules and regulations. Concessionaire
must obtain, at her own expense, all licenses and permits required
for the operation of said fishing pier and make the same accessible
at all times to city, county, state, and federal officers.
Concessionaire agrees to pay all federal and state permit and lease
C:\WP50\ClP\PIER_6,AGR Concession Agreement, page 2 of 9
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fees. The City agrees to pay required state permit and lease fees
from the Concessionaire's share of collected receipts according to
the following formula:
15% of total permit fee for each of the months of June, July,
August, & September of each year of the agreement.
5% of total permit fee for each of the months of October,
November, December, January, February, March, April, & May
of each year of the agreement.
The payment schedule specified above shall begin in the month
following the date this agreement is executed and continue until the
agreement is terminated.
(b) The Concessionaire will pay all applicable local, state, and federal
taxes incident to the operation of said fishing pier.
(c) The Concessionaire will place no vending machine in the area of the
fishing pier without the prior written approval of the City Parks &
Recreation Director or his designated representative.
(d) The Concessionaire will abide by such opening and closing hours of
the fishing pier as the Commissioners Court of Harris County and the
City may, from time to time, prescribe and will post such hours of
opening and closing at the fishing pier.
(e) The Concessionaire agrees to open the pier to the public, at no
charge, on the following dates: (a) Sylvan Beach Day; (b) Bay Day;
and (c) three(3) other dates to be determined by the City and/or
Harris County, and coordinated with the Concessionaire.
(f) The Concessionaire will sell no beer, wine, liquor, or other such
alcoholic beverages on the fishing pier.
(g) The Concessionaire will keep the fishing pier and the entrance
thereto in a neat, clean, and sanitary condition.
(h) The Concessionaire will be responsible for all routine or minor
maintenance of the pier. The City will be responsible for all major
repairs to the pier. For purposes of this Agreement, a Major Repair
shall be defined as: any purchase of materials and labor in excess
of $200.00 for any particular event, including normal wear and tear,
requiring repair of the pier.
C:\WP50\ClP\PIER_6,AGR Concession Agreement, page 3 of 9
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(i) The Concessionaire will not permit on the pier, or in the immediate
vicinity of the pier, any disorderly conduct or practice in violation of
any federal, state, or municipal laws, rules, regulations, or
ordinances; of a sort likely to bring discredit upon the City or its
governing body.
0) The Concessionaire will treat the public with courtesy and respect at
all times. Complaints will be investigated by the Parks & Recreation
Director or his designated representative and, if found to be just, be
resolved to the satisfaction of said Director.
(k) The' Concessionaire will neither place, nor cause to be placed, any
sign, projection, advertisement, or device of any kind whatsoever on
the fishing pier or on the streets adjacent thereto without prior written
consent of the City.
(I) The Concessionaire will be responsible for all costs and expenses
incidental to operating the fishing pier.
(m) The City will be responsible for providing utilities to the pier, at a time
to be determined later. The City will be responsible for payment of
water utility costs. The Concessionaire will be responsible for
payment of electrical utility costs.
(n) The City will be responsible for providing a kiosk for ticket sales at
the entrance to the pier. Said kiosk shall be of a design mutually
approved by the City and the Concessionaire. The Concessionaire
will be responsible for maintenance and repair of said kiosk for the
duration of this Agreement. The Concessionaire will be responsible
for providing any barricades required to limit access to the pier and
to direct patrons to the kiosk for ticket sales or other purpose.
(0) The City will be responsible for providing trash receptacles for the
pier and entrance to the pier; the Concessionaire will be responsible
for providing plastic liners for the receptacles.
(p) It is expressly the Concessionaire's responsibility and duty to
remove and properly dispose of the trash and garbage resulting
from the public use of the fishing pier and seeing to it that the same
is put in suitable closed containers and is picked up and hauled
away at least twice a week.
C:\WP50\Cl.P\PIER_6,AGR Concession Agreement, page 4 of 9
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VI.
The Concessionaire shall permit the City's officers, employees, and agents to enter
into and upon the fishing pier for the purpose of inspecting and examining the condition
thereot.
VII.
The Concessionaire shall not by virtue hereof be deemed to have become a tenant
of the City, nor to have been given or accorded as against the City the possession of any
part of said fishing pier, but to such of the pier as the Concessionaire is hereunder
entitled to use, the Concessionaire shall be deemed merely to be a licensee permitted to
enter therein solely for the purpose of exercising therein the rights and privileges hereby
granted.
VIII.
The Concessionaire shall keep and maintain during the term hereof, a
comprehensive general liability policy, with the City and Harris County named as
additional insured, with limits of liability of not less than one million dollars ($1,000,000.00)
combined single limit bodily injury and property damage per occurrence. In addition,
Concessionaire shall keep and maintain during the term hereof Worker's Compensation
Insurance in accordance with statutory limits, with an insurance company licensed to do
business within the State of Texas, and acceptable to the City and Harris County and
under forms and policies satisfactory to the said City and Harris County. The
Concessionaire shall annually furnish the City with a certificate of insurance evidencing
such coverage. The City and Harris County are to receive at least thirty (30 days prior
written notice of cancellation of said policies. Such insurance shall include contractual
liability insuring the indemnity agreements contained herein. Failure to maintain insurance
will result in automatic and immediate termination of this Agreement.
IX.
To the fullest extent permitted by applicable law, Concessionaire shall and does
hereby agree to indemnify, protect, hold harmless and defend the City of La Porte and
Harris County, Texas, and their respective heirs, legal representatives, partners, agents,
employees, directors, shareholders, subsidiaries, and affiliated companies if Indemnities
and of any of their respective partners, (herein collectively called the Ilndemnitees") from
and against all claims, demands, damages, injuries, losses, liens, causes of action, suit,
judgements, liabilities, costs, and expenses, including court costs and attorney's fees, of
any nature, kind or description (including without limitation, claims for injuries or death of
any person, or damages to or loss of any property) of any person or entity (including but
not limited to employees, agents, and subcontractors of Concessionaire, and their
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Concession Agreement, page 5 of 9
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dependents, and personal representatives, or other third parties), directly or indirectly
arising out of, caused by, in connection with, or resulting from (in whole or in part), (a)
the presence or activity of Concessionaire, its employees, agents, and representatives,
(including subcontractors on Indemnitee's premises, (b) the condition of the Indemnitee's
premises, the adjoining land, or any of the driveways, streets, or alleys used in connection
with the services of the Concessionaire, (c) the use of any equipment by Concessionaire
on Indemnitee's premises, whether belonging to Concessionaire, Indemnitee, or
otherwise, or the condition of said equipment, or (d) any act or omission of
Concessionaire, any Subcontractor, any of their respective employees, agents, servants,
officers, directors, partners, or anyone directly or indirectly employed by Concessionaire
or any Subcontractor, or anyone that either Concessionaire or any Subcontractor controls
or exercises control over (herein collectively called the "Liabilities").
THE OBLIGATIONS OF CONCESSIONAIRE UNDER THIS INDEMNIFICATION SHALL
APPLY TO LIABILITIES EVEN IF SUCH LIABILITIES ARE CAUSED IN WHOLE OR IN
PART BY THE SOLE OR CONCURRENT NEGLIGENCE OF ANY INDEMNITEE, AND
WHETHER OR NOT SUCH SOLE OR CONCURRENT NEGLIGENCE WAS ACTIVE OR
PASSIVE. Concessionaire shall promptly advise Indemnitees in writing of any action,
administrative or legal proceeding or investigation as to which this indemnification may
apply, and Concessionaire, at Concessionaire's expense, shall assume on behalf of
Indemnitees (and the other Indemnitees) and conduct with due diligence and in good faith
the defense thereof with counsel satisfactory to Indemnitees; provided, however that
Indemnitees shall have the right, at its option, to be represented therein by advisory
counsel of its own selection and at its own expense. In the event of failure by the
Concessionaire to fully perform in accordance with this Indemnification Agreement,
Indemnitees, at its option, and without relieving Concessionaire of its obligations
hereunder, may so perform but all costs and expenses so incurred by Indemnitees in that
event shall be reimbursed by Concessionaire to Indemnitees, together with interest on the
same from the date any such expense was paid by Indemnitees until reimbursed by
Concessionaire, at the highest lawful rate of interest allowed under applicable usury laws
of the State of Texas (or if no maximum rate is applicable, at the rate of ten percent (10%)
per annum). This indemnification shall not be limited to damages, compensation or
benefits payable under insurance policies, worker's compensation acts, disability benefit
acts or other employee's benefit acts. It is agreed with respect to any legal limitations
now or hereafter in effect and affecting the validity of enforceability of the indemnification
obligation under this Section, such legal limitations are made a part of the indemnification
obligation and shall operate to amend the indemnification obligation to the minimum
extent necessary to bring the provision in to conformity with the requirements of such
limitations, and so modified, the indemnification shall continue in full force and effect.
x.
It is expressly understood and agreed that the City may terminate this Agreement
without cause at any time by giving the Concessionaire at least ninety (90) days written
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Concession Agreement, page 6 of 9
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notice of its intention to do so, specifying therein the effective date of such termination.
It is expressly agreed that the Concessionaire may terminate this Agreement prior to the
expiration of the term set forth above without cause upon ninety (90) days written notice
to the City. Notifications pertaining to any part of this Agreement shall be made as
follows:
THE CITY:
City of La Porte
P.O. Box 1115
La Porte, Texas 77571-1115
Attention: City Manager's Office
THE CONCESSIONAIRE: Ms. Linda Darnell Witt
723 South 4th Street
La Porte, Texas 77571
HARRIS COUNTY:
The Honorable Jim Fonteno,
Commissioner, Precinct 2
Harris County Commissioner's Court
7330 Spencer Highway
Pasadena, Texas 77505
XI.
The Concessionaire shall not allow any liens or any other encumbrances to attach
to the leased premises.
XII.
Whenever the terms of this Agreement conflict with the terms of the Agreement
with the City and Harris County, Texas, dated April 12. 1994 (attached hereto), amended
and extended, the parties agree that the terms of the Harris County Agreement control,
to the extent of such conflict only. Otherwise, this Agreement is to be construed in
relationship with the Harris County Agreement insofar as possible.
XIII.
The provisions of this Agreement which assign certain rights to the City, shall be
construed to also be shared by Harris County insomuch as they are in accordance with
the terms of the Agreement between the City and Harris County, Texas, dated April 12,
1994.
The foregoing does not apply to Section X, which allows the City unilaterally
to terminate this Agreement without cause, and also does not apply to Section III,
which governs payment. The City's and Harris County's writes and obligations
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Concession Agreement, page 7 of 9
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regarding payment are more specifically set forth in the Agreement between the
City and Harris County dated April 12. 1994.
XIV.
This instrument contains the entire Agreement between the parties related to the
rights herein granted and obligations herein assumed. Any oral or written representations
or notifications concerning this instrument shall be of no force or effect excepting a
subsequent modification in writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple
copies on this the J .2.~ day of ~e.r, 1994 to become effective as provided above.
"CITY"
CITY OF LA PORTE
A municipal corporation
BY: G?~ T: ~
TITLE:
CL ~ Y\'\~ yo .
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ATTEST:
s.~ .f!~
CITY SECRETARY
BY:
4;NC~
Linda Darnell Witt
TITLE:
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Concession Agreement, page 8 of 9
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CONCESSION AGREEMENT
EXHIBIT "A"
The 1,100 foot pier referred to in this agreement shall be the pier located on the following
described premises situated in Harris County, Texas, to-wit:
A 20 feet wide strip of land 10 feet on both sides of the herein described
centerline out of the Sylvan Beach Park on Galveston Bay in the City of La
Porte, Texas, out of the Johnson Hunter Survey, Abstract 35, Harris County I
Texas, and being more particularly described as follows:
Beginning at a set P.K. Nail marking the intersection of the centerline of an
existing wooden fishing pier and a wooden bulkhead.
Thence, in a Northwesterly direction, along the centerline of said wooden
fishing pier extended, a distance of 49.41 feet to a set P.K. Nail on the
southeast side of an existing parking lot for the POINT OF TERMINUS.
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Concession Agreement, page 9 of 9
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CITY OF LA PORTE
PARKS AND RECREATION DEPARTMENT
ADMINISTRATIVE POLICIES AND PROCEDURES
SUBJECT:
Cash Management Procedure for Pier Operating Agreement
Between Linda Witt and the City of La Porte governing
operation of the Sylvan Beach Fishing Pier
RESPONSIBLE AGENCY: City of La Porte Parks & Recreation Department
City of La Porte Finance Department
POLICY OBJECTIVE:
To implement a procedure to regulate cash revenues received as
a result of management and operation of the Sylvan Beach
Fishing Pier by Linda Witt, by Agreement with the City of La
Porte Parks and Recreation Department.
AUTHORITY:
Vested authority of the Director to promulgate reasonable rules
and regulations as approved by the City Manager's office.
SUMMARY:
A procedure is established which defines Cash Revenues relative
to pier operations as a part of the Agreement. The procedure
must be followed to assure sound fiscal responsibility, to fulfill
obligations under the Agreement between the City of La Porte
and Linda Witt, and to fulfill obligations under the Agreement
between the City of La Porte and Harris County, Texas.
APPROVED:
Jjidt
DATE:~~ 9'1
TITLE:
Director of Parks & Recreation
APPROVED:
DATE: lz.-II';~
,
TITLE:
page 1 of 3
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POLICY FOR CASH MANAGEMENT - SYLVAN BEACH FISIDNG PIER
CITY OF LA PORTE
PARKS & RECREATION DEPARTMENT
Cash Revenues Defined
Cash Revenues, as they relate to the operation of the Sylvan Beach Fishing Pier under the
terms of the Agreement, shall be defined as the total amount of money generated by
admission fees charged to citizens for access to the pier, and collected by Linda Witt or her
agent pursuant to the Agreement. Admission fees have been set by the Council Audit
Committee, included as a part of the Ordinance approving the Agreement, and approved by
City Council at its _ meeting. This definition shall not apply to monies that are collected
by Linda Witt or her agents in the course of their operations under other agreements.
City of La Porte
Parks & Recreation Department
Procedure for Management of Cash Revenues generated by Sylvan Beach Fishing Pier
1) Dual, numbered ticket stubs will be purchased, initially by the City, and thereafter by
the Concessionaire. Tickets shall be categorized as Adult, Senior/Youth, and be
color coded in five (5) different colors: Red Tickets, Blue Tickets, White Tickets,
Green Tickets, and Yellow Tickets. The Concessionaire shall arbitrarily choose a
ticket color each moring; the same color cannot be used on consecutive days.
2) The Concessionaire will collect admission fees as prescribed by the Ordinance for
each category of admission (Le. Adult, Youth, Senior) and give each customer a
corresponding ticket half, and deposit the corresponding half into a container to be
provided by the Concessionaire. The customer's half of the ticket, with the
customer's permission, will be stapled to the customer's shirtsleeve to allow easy
identification at any time, without inconveniencing the customer.
3) The Concessionaire will fill out the Daily Cash Report Form which is furnished by
the Department, and color coded to match the ticket to be used that day; indicating:
1) the total number of tickets sold in each category, 2) the sub-total revenues
generated in each category, 4) the total revenues generated, 4) the cash denominations
submitted, and 5) the beginning and ending ticket reading from each ticket roll for the
day, along with other pertinent information required to complete the form.
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4) The Concessionaire will deposit the Daily Cash Report Form, the collected revenues,
and the retained daily ticket stubs after each evening's closing at the depository as
designated by the City, in a locked money bag to be provided by the City. On a trial
basis, the depository will be the Recreation and Fitness Center safe. The R.F.C. staff
member on duty will place the money bag into the safe until the following morning
when it will be forwarded to City Hall along with the other Departmental deposits.
5) The Concessionaire will make periodic checks of the pier on a daily basis to assure
that customers are paying and also adhering to applicable rules and regulations posted
on the pier. Customers are required to show their half of the stub on demand, and
are required to pay if found without their half of their stub. City of La Porte agents
and Harris County agents are authorized to make periodic checks as well, to assure
that this procedure is followed.
6) The Finance Department will process the daily cash report by dividing it in equal
thirds (one-third to the City of La Porte, one-third to Harris County, and one-third to
Linda Witt) and assigning it appropriately among the various accounts as follows:
a) an account for the Sylvan Beach Fishing Pier Escrow (City and County
revenues go to this account until the amount reaches $60,000.00 and
then it is maintained according to a formula contained in the Agreement
between the City of La Porte and Harris County dated April 12, 1994.)
b) an account for the City of La Porte share of revenues (after escrow
account is satisfied).
c) an account for Harris County share of revenues (after the escrow
account is satisfied).
d) an account to pay annual pier lease fees to TNRCC as governed by the
pier Agreement between the COLP and Linda Witt.
e) an account for Linda Witt share of revenues (after the lease fee account
is satisfied).
7) The Finance Department will cut the appropriate checks to Harris County and to
Linda Witt on a monthly basis.
8) The Finance Department will assist the Parks and Recreation Department with
periodic audits to assure that this procedure is being followed on a timely basis.
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