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ORDINANCE NO. 2000-a~~\
AN ORDINANCE APPROVING AND AUTHORIZING AN AMENDMENT TO THE CONTRACT
FOR THE SUPPLY OF POTABLE WATER AND THE CONSTRUCTION, FINANCING AND
OPERATION OF WATER TREATMENT TRANSMISSION AND DISTRIBUTION,
FACILITIES BETWEEN THE CITY OF LA PORTE AND THE LA PORTE AREA WATER
AUTHORITY; 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 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
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.
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PASSED AND APPROVED, this 24th day of July, 2000.
ATTEST:
1!Jt;1AujJ.1'iuJd
Ma tha A. Gillett
City Secretary
CITY OF LA PORTE
BY:~~
Mayor
Knox W. Askins
City Attorney
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THIS CONTRACT IS SUBJECT TO ARBITRATION
UNDER THE TEXAS GENERAL ARBITRATION ACT
AMENDMENT TO CONTRACT FOR THE SUPPLY OF POTABLE WATER AND THE
CONSTRUCTION, FINANCING AND OPERATION OF WATER TREATMENT
TRANSMISSION AND DISTRIBUTION FACILITIES
THIS CONTRACT, made and entered into as ofthedt.JI~day Of~, 2000, (the
"Amendment") amends the Contract made and entered into as of the 23rd day of
November, 1987, by and between La Porte Area Water Authority (the "Authority"), a
conservation and reclamation district in Harris County, Texas, and a governmental
agency and a body politic and corporate, created by Chapter 729, page 2678, Acts of
the 67th Legislature of the State of Texas, Regular Session, 1981 (the "Act"), and the
City of La Porte, Texas, a municipal corporation of the State of Texas (the "City"),
(hereinafter sometimes referred to as the "Contract").
WIT N E SSE T H:
WHEREAS, the City and other Participants named in Section 2.01 hereof are
required by the rules and regulations of the Harris-Galveston Coastal Subsidence
District (the "Subsidence District") to continue the reduced levels of their respective
withdrawals of groundwater from their wells, and replace such withdrawals with surface
Water which has been properly treated for domestic use;
WHEREAS, the Authority has existed primarily for the purpose of providing
Water treatment and transmission facilities necessary to serve municipal corporations,
political subdivisions and others within an area described in Section 3 of the Act, and
may provide such facilities to persons, corporations, municipal corporations, political
subdivisions and others within an area described within Section 5(b) of the Act;
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WHEREAS, under the Act the Authority has specific power, among others, to (a)
acquire surface Water supplies from sources inside and outside its boundaries, (b) treat,
purify, transport, distribute, sell and deliver Water (as defined herein) to corporations,
municipal corporations, political subdivisions of the State of Texas and others, (c)
purchase, construct or otherwise acquire facilities and improvements necessary to carry
out its powers, and (d) issue and sell its revenue bonds, without the necessity of an
election, for the purpose, among others, of paying the cost of such facilities and
improvements;
WHEREAS, at the request and for the benefit of the City and such other
Participants, the Authority has entered into a contract with the City of Galveston,
Galveston County, Texas, a municipal corporation organized and existing under the
laws of the State of Texas, for the purpose of purchasing a 3MGD additional undivided
interest in the Pumping and Production Capacity of the City of Houston's Southeast
Water Purification Plant (hereinafter called the "Southeast Plant");
WHEREAS, the Authority has entered into a Cost Sharing Agreement with the
City of Houston for the expansion of the Southeast Plant, and the expansion has
increased Production Capacity of the Southeast Plant from 80 MGD to 120 MGD, which
has provided the authority the rights to an additional 3.6 MGD of production capacity, of
which the Authority has sold the rights for 3 MGD to other entities by entering into an
Excess Rebate Water Purchase Agreements and has retained the rights to .6 MGD,
and the expansion has also lowered the Pumping Capacity of the plant from 225 MGD
to 200 MGD.
WHEREAS, in order to continue to comply with the rules and regulations of the
Subsidence District, the City desires to purchase additional Water from the Authority on
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the terms and conditions herein set forth and the Authority is willing to sell such
additional Water to the City upon the same terms and conditions; and
WHEREAS, the Authority and the City are authorized to enter into this Contract
pursuant to the Act, Chapter 791, ~ 791.002 et seq. of the Texas Government Code,
and other applicable laws;
NOW, THEREFORE, in consideration of the mutual premises and covenants and
agreements therein contained, the Authority and the City hereby agree as follows:
SECTION 1. Article 1, Section 1.01 of the Contract is hereby amended to read as
follows, to-wit:
"ARTICLE I
Definition of Terms
Section 1.01 Unless the context requires otherwise, the following terms and
phrases shall have meanings as follows:
(1) Act - Chapter 729, page 2678 et seq., Acts of the 67th legislature of the
State of Texas, Regular Session, 1981.
(2) Authority - The La Porte Area Water Authority,
(3) Authority Director - the General Manager of the La Porte Area Water
Authority, or his designated representative.
(4) Board - The Board of Directors of the Authority.
(5) Bond Resolution - any resolution or order of the Authority, duly approved
by the City, which authorizes the issuance of any Bonds.
(6) Bonds - any revenue bonds issued by the Authority, as authorized by this
Contract and any Bond Resolution, whether one or more issues, and the interest
appertaining thereto, to finance the Authority's participation in the Southeast Plant,
the Transmission System, and the Distribution System, including all improvements,
enlargements, and expansions thereof, and any Bonds issued to refund such bonds.
(7) City - the City of La Porte, Harris County, Texas.
(8) City System - the City's existing waterworks and sanitary sewer system,
together with all present and future extensions, additions, replacements and
improvements thereto.
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(9) Code - the Internal Revenue Code of 1986, as amended.
(10) CWA - the Coastal Water Authority, previously known as the Coastal
Industrial Water Authority.
(11) Demand Allocation Factor- the percentage of the production capacity of the
Southeast Plant which the Authority is entitled to use at any given time, The initial
Demand Allocation Factor for the authority will be the percentage of the actual
production construction cost paid by the Authority divided by the total actual
production construction cost, as specified in Section 2,01 of the Houston Contract.
The initial Demand allocation Factor is 6.5%.
(12) Distribution System - those facilities used to transport treated surface
Water from the termination of the transmission facilities shown on Exhibit "C",
attached hereto, and fully incorporated by reference herein, to each Participant's
take point.
(13) Excess Production Fee - the rate to be charged to the City by the Authority
for use of production capacity above the City's share of committed capacity from the
Southeast Plant which shall be payable in the amounts and at the times as set forth
in Section 4.05 of the Houston Contract.
(14) Excess Pumoaae Fee - the rate to be charged to the City by the Authority
for use of pumping facilities associated with the Southeast Plant in excess of the
City's share of committed capacity for the Project, which shall be payable in the
amounts and at the times as set forth in Section 4.05 of the Houston Contract.
(15) Fiscal Year - the Fiscal Year of the Authority, as designated in Section
16(b) of the Act, which is from October 1, to September 30 of the following year,
unless and until changed by the Board.
(16) Houston - the City of Houston, Harris County, Texas.
(17) Houston Contract - the contract between the Authority and Houston, which
shall be in all material respects in accordance with the terms and provisions of the
contract attached to this Contract as Exhibit "A", incorporated by reference herein as
if recited in this Contract verbatim, providing for the purchase by the Authority of: an
undivided interest in the Southeast Plant as well as potable treated surface Water
from the Southeast Plant.
(18) Houston Director - the Director of the City of Houston's Department of
Public Works and Engineering or any other person designated as such Director.
(19) La Porte - the City of La Porte, Harris County, Texas.
(20) "MGD" - an abbreviation for million gallons per day. As used in this
Contract, "MGD" refers to the quantity of Water during a period of time expressed for
convenience in terms of an average daily quantity during a calendar month (unless a
different period of time is specified). The volume of two MGD for a calendar month,
for example, is calculated as follows: Two million gallons multiplied by the number of
days in such calendar month.
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(21) Operation and Maintenance Expenses - all costs of providing Water to
Participants under the Water Sales Contracts, except for costs funded by Bond
proceeds; debt service on the Authority's Bonds and amounts required to fund any
reserve fund, contingency fund, rebate fund, or any other fund established under any
Bond Resolution, including without limitation all Operation and Maintenance Costs
billed to the Authority by Houston, all Operating and Maintenance Costs incurred by
the Authority related to the Transmission system and the Distribution System, and all
administrative costs incurred by the Authority (including insurance).
(22) UParticipants" - the city and all of the other parties named in Section 2.01
hereof who have executed a Contract substantially similar to this Contract. The
terms also includes any customer who executes a Water Sales Contract pursuant to
the provisions of Section 11.09 hereof from and after such execution.
(23) Production Capacitv - the maximum rate of production of treated surface
Water from the Southeast Plant, which equals 120 MGD.
(24) Pumpina Allocation Factor - the percentage of the Southeast Plant's
pumping and related treated Water storage capacity which the Authority is entitled to
use at any given time. The initial Pumping Allocation Factor for the Authority will
equal the actual construction cost of the pumping and storage facilities paid by the
Authority divided by the total actual construction cost for such pumping and storage
facilities. The initial Pumping Allocation Factor is 4.875%.
(25) Pumpina Capacitv - the ~aximum rate of delivery of treated surface Water
from the Southeast Plant, which equals 200 MGD (expressed as a peak hour
pumping rate).
(26) Service Area - that area described in Sections 3 and 5(b) of the Act.
(27) Southeast Plant - the Project described in the Houston Contract generally,
and specifically described in Exhibit uB" to the Houston Contract.
(28) Subsidence District - the Harris-Galveston Coastal Subsidence District.
(29) Transmission System - those facilities, including pipelines, easements,
pumping, and other devices to deliver treated surface Water from the take point at
the Southeast Plant, shown on Exhibit uA" attached to the Houston Contract, to that
point shown Exhibit uC" of this Contract, which includes necessary storage and
pumping facilities to delivery treated surface Water to each Participant.
(30) UWater" - the term UWater" means potable treated surface Water that has
been supplied by Houston in accordance with the Houston Contract.
(31 ) Water Sales Contracts - the Contract, the contracts between the Authority
and the other Participants named in Section 2.01 of this Contract, and any Contract
between the Authority and a new Participant. All Water Sales Contractsss are and
shall be in a form substantially similar to this one."
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SECTION 2. Article II, Section 2.01 is hereby amended to read as follows, to-wit:
"Section 2.01 With the full cooperation of the City (and the other
Participants) the Authority agrees to purchase an initial Demand Allocation Factor of
6.5% and an initial Pumping Allocation Factor of 4.875% in the Southeast Plant, in
accordance with the Houston Contract, attached hereto as Exhibit "AD. Each
Participant's share of the initial Demand Allocation Factor and initial Pumping
Allocation Factor are set forth below opposite the name of each party.
% SHARE SHARE % SHARE SHARE
PARTICIPANT OF IDAF* OF IDAF* OF IPAF** OF IPAF**
City of La Porte 88.78% 5.77% 88,78% 4.33%
City of Shoreacres 4.17% 0.27% 4.17% 0.20%
City of Morgan's Point 7.05% 0.46% 7.05% 0.34%
* lOAF -Initial Demand Allocation Factor
** IPAF - Initial Pumping Allocation Factor
The above percentages, applied to the lOAF of 120 MGO and the IPAF of 200
MGO, calculate as follows:
Gallons Gallons
PARTICIPANT of lOAF of IPAF
City of La Porte 6,925,000 8,656,250
City of Shoreacres 325,000 406,250
City of Morgan's Point 550.000 687.500
Total for Authority 7,800,000 9,750,000"
SECTION 3. Section 2.03 of the Contract is hereby amended to read as follows, to-wit:
"Section 2.03 The pro rata share of each Participant in the actual
construction cost of the Transmission System and the Distribution System is as
follows:
City of La Porte
City of Morgan's Point
City of Shoreacres
80.30%
11.70%
8.0%
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Each Participant, including the City, hereby approves the construction cost formula
and the City's share of the actual construction cost for the Transmission System and
Distribution System as paid by the City and the other Participants, as required by the
Contract. n
SECTION 4. This Amendment and the Contract together constitute all the
understandings between the parties hereto, and there are no oral representations,
stipulations, warranties or understandings with respect to the subject matter of this
Amendment which are not fully expressed herein. Neither this Amendment nor its
execution has been induced by any representations, stipulations, warranties or
understandings of any kind other than those herei'n expressed.
No amendment, addition to, alteration, modification or waiver of all or any part of
this Amendment shall be of any force or effect unless in writing and signed by the
Authority, the City and any other Participant affected by such change. If the terms and
conditions of this Amendment and the terms and conditions of any purchase order or
order acknowledgement written in connection with this Agreement conflict, the terms
and conditions of this Amendment shall govern.
SECTION 5. No waiver by any party hereto of one or more defaults by any other party
hereto in the performance of any of the provisions of this Amendment shall operate or
be construed by a waiver of any other or further default or defaults, whether of a like or
different character.
SECTION 6. This Amendment shall bind and benefit the parties hereto and their
respective successors and assigns, and shall not' be assignable by any party without
written consent of the other parties.
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SECTION 7. This Amendment is to be construed according to the laws of the State of
Texas.
SECTION 8. The topical headings used herein have been inserted for convenience only
and shall not be construed as having any substantive significance or meaning
whatsoever or as indicating that all of the provisions of this Amendment relating to any
particular topic are to be found in any particular Article.
IN WITNESS WHEREOF, the parties hereto, acting under authority of the
respective governing bodies, have caused this Amendment to be e.l.(ecuted in several
counterparts, each of which shall be an original, but all collectively constituting one and
the same instrument, all as of the day and year first written.
CITY OF LA PORTE, TEXAS
By:
G.~ T ~~
City Manager
ATTEST:
By: (~/1tl (j. ):f.,UJII
City Secretary
APPROVED:
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LA PORTE AREA WATER AUTHORITY
By: ~}~O~/
President
ATTEST:
By:
&~ (kQ
Secretary
APPROVED BY:
CITY OF LA PORTE, TEXAS
By:4f/~~
ayor
ATTEST:
By:01#~uAtL 0. j1uur
City Secretary
APPROVED:
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