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HomeMy WebLinkAboutO-2000-2381 . e ORDINANCE NO. 2000-1311 AN ORDINANCE APPROVING AND AUTHORIZING AN EXCESS REBATE WATER CAPACITY PURCHASE AND SALE AGREEMENT BETWEEN THE LA PORTE AREA WATER AUTHORITY AND THE CITY OF FRIENDSWOOD; MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND 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 descr ibed 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 Mayor 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 ci ty for the time required by law preceding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Government Code; 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 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. . e ORDINANCE NO. 2000-13il PAGE 2 PASSED AND APPROVED, this 21st day of February, 2000. By: ATTEST: ~v.j1. J/;JIj( Mar ha A. Gillett City Secretary APfE; tJ Knox W. Askins City Attorney e, '" e EXCESS REBATE WATER CAPACITY PURCHASE AND SALE AGREEMENT STATE OF TEXAS { { COUNTY OF HARRIS { This Agreement, made and entered as of the 21st day of February, 2000, between the LA PORTE AREA WATER AUTHORITY, a conservation and reclamation district authorized and created under Article XVI, Section 59 of the Texas Constitution, and acting under Chapters 49 and 54, Texas Water Code, as amended, hereinafter "Seller", and the CITY OF FRIENDSWOOD, a political subdivision of the State of Texas, hereinafter referred to as "Purchaser". WIT N E SSE T H: WHEREAS, the City of Houston is planning an interim expansion of the Southeast Water Purification Plant (the "Houston Plant") from 80 Million Gallons per Day (MGD) to 120 MGD; WHEREAS, the La Porte Area Water Authority (the "Seller"), as a co- owner of the Houston Plant, has the right to purchase up to 3.6 MGD of the Interim capacity Expansion; WHEREAS, Seller desires to sell 3 MGD of the Interim capacity Expansion in the Houston Plant which the Seller has the right to purchase; WHEREAS, Purchaser desires to acquire 1 MGD of such right to purchase water capacity; and WHEREAS, parties desire that such purchase, sale and transfer of Seller's interest (as hereinafter defined) to Purchaser shall be effective as of the Transfer Date (as hereinafter defined). NOW THEREFORE IN CONSIDERATION OF PREMISES, and for good and valuable consideration, Seller and Purchaser agree as follows: I. In addition to the defined terms set out above, the following defined terms are assigned the meanings set forth below: . e "Down Pavment" shall mean the $340,000.00 down payment, which is equivalent to forty percent (40%) of the Purchase Price, for Seller's interest, to be paid by Purchaser to Seller on or before 2:00 p.m. on Tuesday, February 29, 2000. "Purchase Price" shall mean the amount of $850,000.00. "Seller's Interest" shall mean La Porte Area Water Authority's excess rebate water capacity in the amount shown on Exhibit "A" attached hereto. "Transfer Date" shall mean Friday, June 30, 2000, at 2: 00 p.m., at which time the final balance of the Purchase Price shall be due and payable, unless deferred to no later than October 31, 2000, at 2:00 p.m., in which case the balance of the Purchase Price shall bear interest at the rate of five and one-half percent (5.5%) per annum, from and after June 30, 2000. II (a) Purchaser agrees to pay to Seller the Down Payment not later than 2:00 p.m. on Tuesday, February 29, 2000. Purchaser agrees to pay the balance of the Purchase Price on or before June 30, 2000. If the balance of the Purchase Price is not paid on June 30, 2000, said balance shall accrue interest at the rate of five and one-half percent (5.5%) per annum from and after June 30, 2000, provided, in any event, the entire balance of the Purchase Price, together with accrued interest thereon, shall be due and payable no later than Tuesday, October 31, 2000. (b) Seller and Purchaser each hereby represent and warrant that it has full right, power, and authority to enter into this Agreement and it is the legal, valid, and binding obligation of such party. (c) On or before the Transfer Date, upon or after payment by Purchaser of the full amount of the Purchase Price to Seller, Seller shall deliver to Purchaser, with a copy to the city of Houston, the executed Conveyance of Interest substantially in the form attached hereto as Exhibit "A". The dated date of such Conveyance of Interest shall be the Transfer Date. III. The following shall be considered a default under this Agreement: (a) the failure of Purchaser to pay the Down Payment to Seller on or before the first payment date; (b) the failure of Purchaser to pay the balance of the Purchase Price to Seller as set forth in II(a) hereof; (c) the failure of Purchaser to perform and observe in a timely manner any of the covenants contained in this Agreement; or 2 . e (d) the Transfer Date has not occurred and payment in full received, together with accrued interest, if any, by October 31, 2000. The following shall be considered remedies upon default: (a) It is not intended hereby to specify (and this Agreement shall not be construed as specifying) an exclusive remedy for any default, but all remedies existing at law or in equity (including specific performance) may be availed of by either party and shall be cumulative. (b) Seller may declare Purchaser's Down Payment forfeited, and Seller may declare this contract null and void. IV. Seller or Purchaser may terminate this Agreement by notice in writing if the City of Houston elects not to construct the expansion contemplated in the "Cost Sharing Agreement Southeast Water Purification Plant" (restated and amended). If either party terminates this Agreement pursuant to this Article IV, Seller shall immediately refund the Down Payment paid by Purchaser plus accrued interest thereon at five and one-half percent (5.5%) per annum calculated on a year of 360 days from date of down payment to date of refund. V. Addresses and Notice. Unless otherwise provided in this Agreement, any notice, communication, request, reply, or advice (herein severally and collectively, for convenience, called "Notice") herein provided or permitted to be given, made, or accepted by either party to the other must be in writing and may be given or be served by (i) depositing the same in the United states mail postpaid and registered or certified and addressed to the party to be notified, with return receipt requested, (ii) by delivering the same to an officer of such party, or (iii) by overnight delivery, receipt of which is confirmed by the sender by prepaid telegram, when appropriate, addressed to the party to be notified. Notice shall be conclusively deemed to be effective upon receipt. Notice given in any other manner shall be effective only when received by the party to be notified. For the purpose of Notice, the addresses of the parties shall, until changed as hereinafter provided, be as follows: If to Seller: La Porte Area Water Authority P.o. Box 1115 La Porte, TX 77572 Attn: Robert T. Herrera General Manager 3 . e If to Purchaser: City of Friendswood 910 South Friendswood Drive Friendswood, TX 77546-4856 Attn: Ronald E. Cox City Manager The parties shall have the right from time to time and at any time to change their respective addresses and each shall have the right to specify as its address any other address by providing at least five (5) days written notice to the other party. VI. Modification. This Agreement shall be subject to change or modification only with the mutual written consent of the parties. Assianabili tv. This Agreement shall not be assignable by any party without the prior written consent of the other party hereto. No third party shall be a beneficiary of this Agreement except permitted assigns. Severabilitv. The provisions of this Agreement are severable, and if any provision or part of this Agreement or the application thereof to any person or circumstance shall ever be held by any court or competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such provision or part of this Agreement to other persons or circumstances shall not be affected thereby. Exhibits. The exhibits attached hereto are incorporated herein for all purposes. Meraer. This Agreement consti tutes the entire agreement between the parties relative to the sUbject matter hereof. There have been and are no agreements, covenants, representations or warranties between the parties other than those expressly stated herein or expressly provided for herein. Counteroarts. This Agreement may be executed in any number of counterparts, and each such counterpart shall be, and shall be deemed to be an original. All such counterparts shall constitute but one and the same instrument. IN WITNESS WHEREOF, the parties have executed the Agreement as of the date and year first written in this Agreement. SELLER: LA PORTE AREA WATER AUTHORITY By:~ Pres' e 4 . e ATra~ ~ Secretary THE FOREGOING AGREEMENT HAS BEEN APPROVED BY THE CITY COUNCIL OF THE CITY OF LA PORTE, TEXAS, BY ITS ORDINANCE NO. 2000-). ~ ~ I , PASSED AND APPROVED ).-,.1 , 2000 By: ~=--;;;~- 'N rman Malone Mayor ATTEs'r: ~1h~J1. AjJJJI a t a A. Gillett City Secretary Knox City PURCHASER: CITY OF FRIENDSWOOD By: Har~~~ Name: ~ Title: ayor '- ~~ Cl.ty Secretary APPROVED AS TO FORM: Kim Mickelson Attorney 5 . e RESOLUTION NO. R2000-13 A RESOLUTION OF THE CITY OF FRIENDSWOOD, TEXAS, AIJPROVING AND AUTHORIZING AN EXCESS REBATE WATER CAPACITY PURCHASE AND SALE AGREEM~;NT BETWEEN THE LA PORTE AREA WATER AUTUORlTY AND THE CITY OF Je'RIENDSWOOD FOR THE PURCHASE OF 1 M(yD OF THE INTERIM CAPACITY AT THE SOUTHEAST WATER PURIFICATION PLANT; MAKING VARIOUS FINDINGS AND PI{OVISIONS RELATING TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AND EFFRCTIVE DATE HEREOF. . * '* '* . '* . . '* NOW THEREFORE, BE IT RESOL Vr::O BY THE CITY COUNCIL OF TIlE CITY OF FRJENDSWOOP. STATE OJ: TEXAS: ~.g~tion J. The City Council hereby approves and nuthori:t.es the contract, for an excess rebate water capacity purchase and sale agreement between the La Porte Area Water Authority and the City of Pricndswood fur the purchase of 1 mgd of the interim capacity at the SOlltheac;t Water Purification Plant, in substantially the 'f()"rrn us shown in the document which is attached hereto Ilnd incorporated herein by this reference. The Presiding Officer is hereby authorized to execute such document and alJ related documents on hehalf of the City of FrienURwood. The Secretary is hereby allthori."ed to attest to all such signutures and to affix to all such documents. S~ction 2. The City Council officially finds, determines, recites and declares thut a sufficient wriUen notice of the date, hour, place and ,-;ubject of this meeting of the City Council was posted at a place convenient to the public ot City Hall, 910 South Friendswood Drive, Friendswood. Texas 77546, on February 21, 2000. for the time required by law preceding this meeting, a!l required by the Open Meetings taw, Chapter SS I, Texas Government Code; and thut this meeting has been open to the public os el e requires by Jaw at nil times during which this Resolution and the ~ubject mater thereof has been discussed. considered nnd '<mnally acted upon. The City Council further ratifies. approves and conlirmR such written notice nnd the contents and posting thereof. Section 3. This Resolution l)hall be effective from and nfter its passage nnd approval. and it is so ordered. PASSED AND APPROVED this ~day of Fehntary, 2000. ~~ Mayor ATTEST: Water Purification Plant Page 2 February 16,2000 .' e City of Friendswood 910 South Friendswood Drive Friendswood, Texas 77546-4856 (281) 996-3270 Fax: (281)482-1634 Mr. Robert T. Herrera General Manager La Porte Area Water Authority PO Box 1115 La Porte, TX 77572-1115 Dear Mr. Herrera: Mayor HAROLD L. WlDTAXER. Councilmembers KlTf'EN HAIECATB JERRY ERICSSON TOM MANISON 10M BRIZENDINE LARRY TAYLOR MEL MEASELES City Manager RONALD E. COX City Secetary DELORIS McKENZIE, T.lUte. This is in response to your letter of January 24, 2000. In that letter, you offered the sale of up to three million gallons per day (MGD) in water rights capacity in the Southeast Water Purification Plant (SEWPP). In your letter you stated the method for expressing interest would be in the form of a bid for the water to be submitted on February 17, 2000. It was our understanding from a meeting with you on January 26, 2000, the City of Pasadena and Clear Lake Water Authority were also indicating an interest in purchasing all or a portion of this capacity. At their February 7, 2000 meeting, the Friendswood City Council authorized the purchase of up to 3 MGD from La Porte Area Water Authority and the City of La Porte. Since that time, at the suggestion of our Public Works Director, Melvin Meinecke, representatives of the City of Friendswood, City of Pasadena and Clear Lake Water Authority have met to discuss our mutual interest in water. Each agreed the preferred method of securing the water rights from La Porte would be to share 1 MGD equally. On February 11, 2000, representatives of the three entities met with La Porte officials to discuss that alternative. We were very pleased to learn that the City of La Porte approved the concept of sharing the water equally among the entities expressing interest. O~ only unknown at the time of the February 11 meeting was whether the City of Pasadena would actually participate in the purchase. Both Friendswood and Clear Lake Water Authority agreed at that time to equally share the remaining 1 MGD should Pasadena decide not to participate. As of this date, it is now our understanding the City of Pasadena is interested, subject to their Council's approval on February 22. With that in mind, please consider this letter a formal offer to purchase water rights as follows, . e Mr. Robert T. Herrera Page Two February 16,2000 · The City of Friendswood will purchase 1.5 million gallons per day of water capacity from the SEWPP at $.85/gallon for a total cost of $1,275,000, if the City of Pasadena does not participate · The City of Friendswood will purchase 1.0 million gallons per day of water capacity from the SEWPP at $.85/gallon for a total cost of $850,000 if all three interested parties agree to purchase the amount available equally. We understand the City of La Porte City Council is expected to act on this offer on Monday February 21, 2000 with the approval of the Interlocal Agreement prepared by your City Attorney. Likewise, the City Council of Friendswood is scheduled to meet on February 21, 2000 to adopt a resolution approving the interlocal agreement. On behalf of the City of Friendswood Council and staff, let me express our appreciation to the City of La Porte Council and staff for the spirit of cooperation in this important effort. We all know water, and especially surface water, is becoming an increasingly important and scarce commodity. Your willingness to make your excess capacity available to others in need is to be applauded. We are especially appreciative of your willingness to work with all interested parties to equally share in the available water, rather than require the sealed bidding competitive process originally proposed. Your attitude and actions promote and solidify cooperation among our neighbors. If you have any questions or concerns, feel free to contact Ron Cox our City Manager at 281- 996-3250. Sincerely, HL W:REC:tsm Cc Councilmembers City Manager Director of Public Works