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Home My WebLink About05-09-12 Regular Meeting of the La Porte Area Water AuthorityLA PORTE AREA WATER AUTHORITY AGENDA Notice is hereby given of a Regular Meeting of the La Porte Area Water Authority to be held on Wednesday, May 9, 2012 beginning at 6:00 pm. in the Downstairs Conference Room of the Public Works Service Center, 2963 North 23rd Street, La Porte, Texas, for the purpose of considering the following agenda items. All agenda items are subject to action. 1. Call to order. 2. Consider approval or other action of minutes from the February 8, 2012 meeting. 3. Consider approval or other action regarding a resolution approving a settlement agreement with the City of Houston providing for the release of funds from the La Porte Area Water Authority contingency reserve to fund the FY 2010 True Up Expenses claimed by the City of Houston and authorizing the General Manager of the La Porte Water Authority to execute the settlement agreement. 4. Discuss the City of Houston FY 2013 Draft Budget and receive Board input regarding the Southeast Water Purification Plant budget approval process. 5. General Manager's Report. 6. Board Comments — Matters appearing on the: Recognition of community members, city employees, and upcoming events; Inquiry of staff regarding specific factual information or existing policy. a. Matters appearing on agenda. b. Inquiry of staff requiring a statement of specific factual information or a recitation of existing policy. 7. Adjournment. In compliance with the American with Disabilities Act, the City of La Porte will provide reasonable accommodations for persons attending public meetings. To better serve attendees, requests should be received 24 hours prior to the meeting. Please contact Patrice Fogarty, City Secretary, at281.470.5019, CERTIFICATION I certify that aepy of the May 9, 2012, agenda of items to be considered by the La Porte Area Water Authority w sted an.the Cit I bulletin board on May , 2012. Uave�Vlick, P lics Work Director V 1 I certi that the attached notice and agenda of items to be con idered by the Por e Area Water Authority w oved by_ne from the City Hall bulletin board on the .tom`— day of 2012. Signa re of person removing from bulletin board STATE OF TEXAS )( COUNTY OF HARRIS )( CITY OF LA PORTE )( LA PORTE AREA WATER AUTHORITY AGENDA NOTICE IS HEREBY GIVEN OF A REGULAR MEETING OF THE LA PORTE AREA WATER AUTHORITY TO BE HELD WEDNESDAY, MAY 9, 2012 IN THE DOWNSTAIRS CONFERENCE ROOM OF THE PUBLIC WORKS SERVICE CENTER, 2963 NORTH 23RD STREET, LA PORTE, TEXAS, BEGINNING AT 6:00 PM. 1. CALL TO ORDER. 2. CONSIDER APPROVAL OF MINUTES FROM FEBRUARY 8, 2012 MEETING. 3. CONSIDER APPROVAL OF AN AGREEMENT BETWEEN THE CITY OF HOUSTON AND THE LA PORTE AREA WATER AUTHORITY FOR RESOLUTION OF THE 2007 — 2010 TRUE -UP EXPENSES CLAIMED BY THE CITY OF HOUSTON. 4. DISCUSS THE CITY OF HOUSTON FY 2013 DRAFT BUDGET AND RECEIVE BOARD INPUT REGARDING THE SOUTHEAST WATER PURIFICATION PLANT BUDGET APPROVAL PROCESS. 5. GENERAL MANAGER'S REPORT. 6. BOARD COMMENTS. A. MATTERS APPEARING ON AGENDA. B. INQUIRY OF STAFF REQUIRING A STATEMENT OF SPECIFIC FACTUAL INFORMATION OR A RECITATION OF EXISTING POLICY. 7. ADJOURNMENT. THIS FACILITY HAS DISABILITY ACCOMODATIONS AVAILABLE. REQUESTS FOR ACCOMODATIONS OR INTERPRETIVE SERVICES AT MEETINGS SHOULD BE MADE 48 HOURS PRIOR TO THIS MEETING. PLEASE CONTACT THE CITY SECRETARY'S OFFICE AT 281-471-5020 OR TDD LINE 281-471-5030 FOR FURTHER INFORMATION. THERE MAY BE A QUORUM OF CITY COUNCIL MEMBERS PRESENT AT THE MEETING. COUNCIL WILL TAKE NO ACTION BUT MAY PARTICIPATE IN DISCUSSIONS. Patrice Fogarty, TRMC, MMC City Secretary Date posted LA PORTE AREA WATER AUTHORITY MINUTES FEBRUARY 8, 2012 1. The meeting was called to order at 6:00 PM by President David Janda, Members Present: President David Janda, Vice President Kenneth Schlather, Secretary Steve VaIerius, Members Dennis Steger, Randy Woodard Members Absent: None Others Present: General Manager Steve Gillett, Public Works Director David Mick, Asst. Public Works Director Don Pennell, Director of Finance Michael Dolby, City Controller Phyllis Rinehart, and Tom Peterson Null-Lairson, PC CPA Texas City Texas. 2. President David Janda called for election of new officers. Motion by Steve Valerius to re-elect all existing officers to then same position, second by Randy Woodard motion was unanimous. The minutes from the meeting held August 1, 2011 were reviewed. Motion by Steve Valerius to approve minutes, second by Randy Woodard, motion was unanimous 4. Tom Peterson representing Null-Lairson C.P.A. reviewed the La Porte Area Water Authority annual financial report for year ending September 30, 2011. Steve Valerius noted that the officer positions noted on page 33 is incorrect. Tom Peterson will email the final copy to all board members and send a hard copy by mail to Kenneth Schlather. Steve Valerius motioned to approve as noted second by Ken Schlather motion was unanimous. S. David Mick presented a draft agreement received fiom the City of Houston for "hue up" costs. Randy Woodard asked if the lawyers retained have addressed the draft presented. The answer was no. Steve Gillett advised that Freese Nichols Engineering had completed the report for feasibility to obtain contract operation services for the Southeast Water Purification Plant (SEWPP). The report indicated that savings may be obtained by contracting operations of the plant. David Mick also pointed out that the report indicated there may be savings by contracting management of the plant. Don Pennell advised the members that other Co -participants indicated a desire the look into contract management along with operations as the Freese Nichols report indicated. Steve Gillett advised the board that operations disagreement has occurred three times he can recall from the beginning of the SEWPP. Board members agreed to continue to follow the lead of the larger co - participants and have staff advise them of any change in direction to contracting operation services. 6. The General Manager had no additional report comme 7. The Board had no additional comments 8. There being no fiuther business, the meeting adjourn( PASSED AND APPROVE Secretary � �O) ON THIS DAY i President Memo To: La Porte Area Water Authority Board From: David Mick, Public Works Director CC: Steve Gillett, Don Pennell, Michael Dolby Date: April 17, 2012 Re: Update City of Houston Settlement Agreement Offer for 2007 — 2010 True Up (Upcoming Board Meeting Agenda Item #3) LPAWA Board: At your February board meeting we discussed that the City of Houston had forwarded a draft settlement agreement to each of the Southeast Water Purification Plant (SEWPP) co -participants. The agreement states that the City of Houston will drop any future claim for FY 2007, 2008, and 2009 True -Up claims against the co - participant if the co -participant agrees to pay the City of Houston invoice to the co -participant for FY 2010. The FY 2010 True -up amount provided to the LPAWA is $138,898. The City of Houston holds a LPAWA contingency reserve balance of nearly $204,000, If this board is in agreement — pending La Porte City Council approval as well — the FY 2010 invoice amount would be deducted from this contingency balance. Staff' contacted the City of Pasadena, Gulf Coast Water Authority, and Clear Lake Water Authority who are the largest 3 co -participants in the SEWPP totaling 75% of the non -Houston ownership share. Clear Lake Water Authority's board agreed to settle, and Pasadena and the Gulf Coast Water Authority has agreed in concept pending slight modifications to the agreement. In fact, all of the co -participants except for LPAWA gave indication to the City of Houston at the April quarterly meeting that their agencies plan to provide the City of Houston with executed agreements prior to May 1. But while the co -participants are seemingly unanimous in their decision to settle the FY 2007 — FY 2010 True -Up dispute with IIouston, they also seem to be unanimous in challenging the allocation costs proposed by the City of Houston with their draft FY 2013 budget utilizing the process provided in the attached sections 3.4.2 — 3.4.5 and 5.15 from the current contract to object to those items unless Houston can provide data to support these costs. Staf 's recommendation is to settle with the City of Houston along with the other co -participants. Houston's likely next step toward the minority co participant that does not settle would be to draw the FY 2010 invoiced amount fi-om the co participant's contingency fund. The challenging co -participant would then be in a position to have to sue the City of Houston in an attempt to recover the funds. In our case, the cost to litigate would almost surely be greater than the invoiced amount with the potential for being required to also pay for the City of Houston legal fees ifthe challenge was unsuccessful. City of La Porte Established 1892 May 15, 2012 no Mr. Mark Loethen, P.E. Deputy Director, Plamung and Development City of Houston Public Works and Engineering Department P.O. Box 1562 Houston, Texas 77251-1562 RE: Settlement Agreement for Cost -Sharing — Southeast Water Purification Plant Dear Mr. Loethen: We received your letter dated March 20, 2012 forwarding three copies of the revised Settlement Agreement for Cost -Sharing — Southeast Water Purification Plant and added a fourth copy so that an original copy can be filed with both the La Porte Area Water Authority (I.PAWA) board of directors and the City of La Porte City Council. The amounts in the LPAWA's contingency reserve exceed the $138,898 that the LPAWA agrees to pay the City of Houston under this Settlement Agreement, and it is the LPAWA's desire to pay the $138,898 in full from the contingency reserve. Therefore, consistent with your letter, we have: (1) revised section l.a.l; (2) struck though sections La.2 and La.3; (3) initialed those changes on all four copies; and (4) executed all four copies. Please return TWO fiilly executed copies of the Settlement Agreement to me. Sincerely, LA PORTE AREA WATER AUTHORITY STEVE GILLETT, INTERIM GENERAL MANAGER David S. Mick Public Works Director, City of La Porte Copy: Steve Gillett, Interim General Manager, La Porte Area Water Authority 604 W. Fairmont Pkwy. * La Porte, Texas 77571 • (281) 471-5020 SETTLEMENT AGREEMENT THE STATE OF TEXAS § § KNOW ALL BY THESE PRESENTS: COUNTY OF HARRIS § This Settlement Agreement (Agreement) is entered into between the City of Houston, Texas (Houston), a Texas Home -Rule Municipal Corporation, and La Porte Area Water Authority (Participant), a Texas entity established by the Texas Legislature, upon the terms and conditions described herein. THAT WHEREAS, pursuant to Houston Ordinance Number 2001- 0417 Houston entered into Contract Number C52797 with Participant and other Participants for a Cost Sharing Agreement for the Southeast Water Purification Plant (Southeast Plant) - Restated and Amended (Contract), and pursuant to Houston Ordinance Number 2007-927 Houston and Participants amended the Contract (Amendment); and WHEREAS, the Participants dispute whether amounts presented by Houston under the true -up compensation calculation in connection with the operation and maintenance of the Southeast Plant for the Fiscal Years 2007, 2008, 2009, and 2010 are owed (Dispute); and WHEREAS, the Participants and Houston are aware of the hazards, uncertainty and expense of litigation and desire to settle and compromise any and all claims which Houston may have against the Participant, arising out of, touching upon, or in any way related to the Dispute. NOW THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, all parties hereby agree as follows: 1. Participant's Agreements and Representations: a. Participant agrees to pay to Houston the total sum of $138,898.00 in full and final satisfaction of any and all claims which Houston may have against Participant relating to the Dispute on or before July 31, 2013. ':%� 13odf ge?8 C*� 1. Participant authorizes Houston to applyll in Participant's portion of the Southeast Plant contingency reserve as of February 29, 2012, towards the sums due Houston from ParticipantMmW , b. Participant represents that the persons signing this Agreement on its behalf are fully authorized to bind it to all the terms hereof. 2. Houston's Agreements and Representations: a. Houston agrees to accept the total sum of $138,898.00 in full and final satisfaction of any and all claims which Houston may have against Participant relating to the Dispute; and b. Houston represents that the persons signing this Agreement on its behalf are fully authorized to bind it to all the terms hereof; and C. Conditioned only upon payment of the total sum referenced In § 1(a) above, Houston does hereby RELEASE, RELINQUISH, ACQUIT, and FOREVER DISCHARGE Participant, of and from any and all claims arising out of the Dispute. 3. Disclaimer: It is expressly understood and agreed by and between the parties to this Agreement that this Agreement includes a compromise and settlement of disputed claims, and that the execution of this Agreement does not in any way constitute any admission of liability on the part of any party to this Agreement, but that all parties to this Agreement expressly disclaim any liability, concerning the claims being compromised and settled herein. 4. Governing Law: This Agreement is being executed and delivered, and is intended to be performed in Harris County, Texas, and the laws of the State of Texas and of the United States of America, shall 2 govern the rights and the duties of the parties hereto and the validity, construction, enforcement and interpretation of this Agreement. S. Entire Agreement: This Agreement embodies the entire Agreement between the parties, supersedes all prior agreements and understandings, if any, relating to the subject matter hereof, and may be amended only by an instrument in writing executed jointly by a duly authorized officer or agent of each of the parties. The terms of this instrument are contractual and are not mere recitals, and the undersigned specifically represent that the contents and effects hereof are fully and completely agreed to and understood. 6. Interpretation: This Agreement shall not be construed against or unfavorably to any party because of such party's involvement in the preparation of this Agreement. (Remainder of the page intentionally left blank.) 3 La Porte Area Water Authority Name: Title: Date Authorized: Date Executed: Attest/Seal BY: Name: Title: Date: THE CITY OF HOUSTON, TEXAS Mayor Date: , 2012 SEAL/ATTEST City Secretary APPROVED: Director, Department of Public Works & Engineering City Attorney APPROVED AS TO FORM: Assistant City Attorney COUNTERSIGNED: City Controller Date Countersigned: 5 RESOLUTION NO.2012-01 A RESOLUTION APPROVING A SETTLEMENT AGREEMENT WITH THE CITY OF HOUSTON PROVIDING FOR THE RELEASE OF FUNDS FROM THE LA PORTE AREA WATER AUTHORITY CONTINGENCY RESERVE TO FUND THE FY 2010 TRUE UP EXPENSES CLAIMED BY THE CITY OF HOUSTON AND AUTHORIZING THE GENERAL MANAGER OF THE LA PORTE AREA WATER AUTHORITY TO EXECUTE THE SETTLEMENT AGREEMENT. BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE LA PORTE AREA WATER AUTHORITY: Section 1. The Authority hereby approves the settlement agreement with the City of Houston providing for the release of $138,898.00 to the City of Houston from the La Porte Area Water Authority contingency reserve for the Southeast Water Purification Plant to fund the FY 2010 True Up expenses that are claimed by the City of Houston. In accepting the $138,898.00, the City of Houston is agreeing to forever relinquish any further claims for FY 2007, FY 2008, FY 2009 and FY 2010. The approved settlement agreement is attached hereto as Exhibit A and incorporated herein by reference. Section 2. The General Manager of the La Porte Area Water Authority is hereby authorized to execute the settlement agreement attached as Exhibit A. Section 3. The Authority officially finds, determines recites and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the Authority was posted at a place convenient to the public at the City Hall of the City of La Porte for the time required by law proceeding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Government Code, and that the meeting has been open to the public as required by law at all times during which this Resolution and the subject matter thereof has been discussed, considered and formally acted upon. The Authority further ratifies, approves and confirms such written notice and the contents and posting thereof. Section 4. This Resolution shall be effective from and after its passage and approval of the Authority Board of Directors. PASSED AND APPROVED, this 9t" day of May, 2012. LN LA PORTE AREA WATER AUTHORITY David Janda, President Board of Directors ATTEST: Steve Valerius, Secretary Board of Directors 'rail/Xlii/ice. CITY OF HouSTON Annise D. Parker public Works and Engineering Mayor Department Daniel W. Krueger, P.E., Director P.O. Box 1562 Houston, Texas 77261-1562 www.lioustontx.gov March 30, 2012 Mr. David Mick Director of Public Works La Porte Area Water Authority 2963 North 23rd St. La Porte, Texas 77571 Subject: Annual O&M Budget per Contract Number C52797 (Ordinance #200I �04I7 Dated May 16, 2001) Restated and Amended Cost Sharing Agreement (Ordinance #2007-0927 Dated 08/15/2007) Dear Mr. Mick: Please find attached your prelitilinary water rate for Fiscal Year 2013. The rate of $0.6299/1000 gallons is composed of two components according to the Contract; 6 O&M rate, calculated based oil the FY2013 preliminary O&M budget, assuming a total projected Production of 80.0 MOD from the Southeast Water Purification Plant, plus 2.5% contingency. 0 Raw Water rate, calculated based on the FY2013 preliminary raw water budget, assuming a total projected raw water intake of 532.97 MGD plus 2.5% contingency, In addition, the co -participants will be billed monthly for the debt service for CWA 96" line. Attached are the supporting -worksheets for your inforniation, Your final water rate will be provided following approval of the City's budget in June. if you have any questions, please contact Sophia Chang at (832) 395-2580, Sincerely, it Susan Bandy j Deputy Director Resource Management Division Attachments Brown Davis JarnesiG. RodgpuezHeM ke l- slor JLaarry V. Gre niieStephn C. Costello Andrew C. Burka,alm Rlvan Jr. Meli sa NorlegaVeC.On Brad" Bradfordinglon Jack Christie Controller: Ronald C. Green City of Houston Department of Public Works and Engineering South East Water Purification plant 2000040017 Fund 8300 PY13 Budget GL Account 600010 600030 500060 500070 600090 501070 501120 502010 503010 503015 503050 503060 503080 503090 603100 504020 504030 Total Personnel 511010 511015 511020 511025 611030 511035 511045 611050 511055 511060 611070 611080 511090 511096 611110 511115 611120 511145 S 5'11150 Total Supplies Description FY13 Proposed Budget Salary Base Pay - Civilian 1,361,297.00 Salary Part Time - Civilian 0.00 Overtime - Civilian 144,259.60 OVO(tkne - Classified 0.00 Premium Pay -civilian 6.820.00 Pension - Civilian 291,318 0o Termination Pay - Civilian 6,000.00 FICA - Civilian 116.700.00 Health Ins -Act Clv 236,089.00 Basic LVe Ins-Ac Ci 813.00 Heallh/Life ins Rat 65,378.00 Long Term pis-Civ 2.610.00 Workers Comp-Cls Adm 0.00 Workers Comp-Civ Adm 7,336.00 Workers Comp-Civ Clm 8,200.00 Compensation Contingency 0.00 Unemployment Clakns 900.00 Chem/Gas & Spcl Fhtl Cleaning & Sanitory Construclion Materials Elecldcal Hardware & Parts Mechanical Hardware & Parts Meters, Hydr & Plum Computer Supplies Paper & Printing Supplies Pub & Printed Mated Postage Misc Oftice Supplies General Laboratory Supplies Medical & Surgical Supplies Sm Tech & Scfen Equi Fuet 1/eh Repair & Malnt S C M toihing m Tools & Minor Equ Ise Parts & Supplle 520101 Janitorial Services 520109 Med, Dental & Lab S 520118 Refuse Disposai 620121 Application Services 620123 Veit & Motor Equip Sv 520124 Other Equipment Services 520170 Generator Equipment Svcs 620510 MaiNDalivary Services 520515 Print Shop Services 620520 Printing & Reprod Sv 520605 Advertising Services 520710 State/Fed Inspection 520765 Membership & Prof Fe 620805 Education & Training 520905 Travel - Training Related F:1FMg1FMB FSWY13 CUS revenue BudgehPlant BudgellWorksheotsl FYI Southeast Plant O&M Budget SEWPP 2,235,702.60 1,9071600.00 1,200.00 15.000,01) 100.000.00 100.000.00 20,000.00 600.00 1,000.00 1,500.00 300.00 2.000.00 6,000.00 500.00 51000.00 300.00 1,000.00 7,500.00 10,000.00 20.000,00 2,199,600.60 33,500.00 1,000.00 400,600.00 200.00 27,000.00 26.000.00 578,9W.00 300.00 500.00 1,000.00 1.000.00 7,000.00 700.00 61800.00 6,000.00 3/29/2012 5:37 PM Page f or City of Houston Department of Public Works and Engineering South East Water Purification Plant 2000040017 Fund 0300 FY1313udget GL Account Description 521405 Bldg Maint Svcs 621605 Elee(rlclty 521515 Elect Fran Fee LXp 521605 Data Services 521610 Voice Services 521620 Voice Equipment 621626 Voice labor 621715 Office Equipment Rental 621726 Other Rental 622305 Fre(ghl Gharges 622795 Other Inlerfund Services Total Other Sery & Chrgs 551025 Non -Cap ScientlficiM 55i030 N C FY13 Proposed Budget 29,800.00 2,425,000.00 5,800.00 100.00 i4,700.00 5,200.00 2.400,00 3,000.00 700.00 6,000.00 _ 500.00 3,681,400.00 on- ap Mach & Equip Total Non -Capital Eq ulpment 87,500.00 Total Expenditure 87,600.00 Property and Terrorism Insurance Premium _ 8,104,102.60 139.948.19 TOEQ 08.76 security 280,000.00 Audit Cost Total Additional Sery & Chrgs _ 8,000.00 Subtotal Plant Operation /r/ G,r� �•! ".fj f Direct Operation Support (WM, WO, ENO, UCS) 428,044,94 8,532147.54 2,811,014.65 Direct Management Support (PUD, DWO) ---�� 41098,986.04 12,442r147.23 Administration Improvements & Betterments 662,929.66 0.00 Total Cost 131106,077.09 Water Raw Water Cost Other Raw Water Cost Pasadena Raw Water Volume lTG1 Rate -Others O&M Raw Water Rate-Posadona O&M Raw Water F:1FMB%FMB FSIFY13 CUS revenue BudgetTlanl BudgetiWorksheelsi FY13 Soulheast Plant O&M Budget SE WPP 32,232,182.51 31,347,096.50 S 0A600 S 0.1698 S 0.6299 $ 0.4600 0.1652 0,6262 3/29/2012 5;37 PM Page 2 of 3 Q 0 i� �. Q -o, N cp Q R� a?L�. Eg o of s^ O L-. 0) 00 400 U a. S6 U C] O w a `r O N n r lX N - W T (p " 0 O�U WT Q Q a0 Lo o co N (6 C L• N N ZtOD ) N M CA V d cl N Q p _M P 0. o o 0 0 0 0 0 0 0 O O Q O C) rN to 0 O O O uO Q to O m n N Or d O H i~ O N rn r co o O 0h o ci o T t- M r r N CO 0 0 O .� N Q O z❑� Q !t_ w a u0i. o cC)r� ago vt°, U') o o ado p M N CD Z a U W N _F- (n z Q ❑ U Lu } Y in Z > o a z C] oz o� Of o Q t!J Z w Ll J z ¢ 0 j w U w U L1 CJ Q a O `► w v> v O U 0.>> Q U yy-. Lw z tl! O �- s z x uJ D ❑ h- Z Rs pC c !- O � Z t- U) a OwV�L c � p o_ m U Y O Q O O CL X Q O LL U 0r r� io _0 a o- r6 l c�i O g w U U tL O 0. z qc, m o .a? C ar `e U tL L!. 4L O i}L Lys wwZ� cv 4 T �UU d , 9 a° I- h UQ�'wLL t}i U Fa aUzz U 0 U �� 6 U U m Ci U W lq .� 0 O� W V rn m C � N � U� D M� m ca c mcn� gMd LI store untreated water but are not listed in Exhibit "I" as well as improvements, repairs, or expenses for items listed on Exhibit "I", for which the Managing Participant issues new debt. B. Section 3.4 of the Restated Agreement is amended to read as follows: 3.4.1 The Managing Participant shall submit for review to all Participants, not later than 60 days prior to the beginning of the Managing Participant's fiscal year, an estimated Annual Budget consisting of various departmental components that constitute the O&M expenditures. The components are described in greater detail in Exhibits "E", "E Pasadena" and "E LaPorte Area Water Authority" (see Restated Agreement). The estimated Plant production will also be provided, along with. the breakdown of the production per Participant. The estimated Annual ... Budget and the estimated Plant production will be used to calculate the annual estimated cost per thousand gallons for the ensuing fiscal year. The final Annual Budget will be submitted to the Participants when the Managing Participant's City Council approves its yearly budget. 3.4.2 A majority of Participants by weighted vote may object to any specific item of the Annual O&M Budget. However, if such item is necessary for regulatory compliance, health, safety or security, it shall be excluded from this provision and the Participants shall continue to make payments for such item as provided by the Annual O&M Budget presented by the Managing Participant (or such amended Budget acceptable to the Managing Participant and the majority of the Participants by weighted vote). If such item is not necessary for regulatory compliance, health, safety or security, the payment made for such item shall be the amount the Participants by majority weighted vote decide and shall continue while the Participants pursue dispute resolution procedures as described herein, ua muni eni crun nnr, 114 3.4.3 During the first month after the objection to items of the Annual O&M Budget, the Participants shall pursue the dispute resolution procedures found in Section 5.15 of the Restated Contract. 3.4.4 If the Participants are still at an impasse one month after the vote objecting to item of the Annual O&M Budget, the Managing Participant shall procure a mediator acceptable to a majority of the Participants by weighted vote. if the Participants reach no agreement after mediation, then the amounts established above shall continue for the remainder of the Budget year unless amended by the majority of Participants by weighted vote, including the Managing _ Participant. All Participants shall make payment to the -mediator as an O&M Expense. 3.4.5 As used herein "weighted vote" means a system of voting under which each Participant's vote is weighted in proportion to the amount of water it has taken in the prior 12 months under the Restated Agreement. Thus, for example, if A has taken 10% of all the water taken under the Restated Agreement, A is entitled to 10°!° of the voting strength. For voting purposes, no Participant's shall count for more than 49% regardless of the amount of water taken. ARTICLE VIII. COSTS FOR WATER LINE UPGRADE OR .REPLACEMENT It is anticipated that it will be necessary to replace one or more water Iines joining the Treated Water Transmission Facilities to the points of delivery of many of the Participants due to an order of the Texas Department of Transportation that some of such facilities be removed from State right--of-way or easement or other upgrade/replacement of the lines. Costs for any such replacements, including the cost of real estate and right -of --way are the responsibility of the Participants using the affected water line, and the Managing Participant shall charge the H.-T, MsOUTFIn.DQC 14 e11 ei9.nnh 5.13.3 All written notices, statements and payments required or permitted to be given under this Agreement shall be deemed given by the third day following the deposit in a United States Postal Service mailbox or receptacle, of certified or registered mail, return receipt requested, with proper postage affixed thereto, addressed asset forth above or at such other address as shall be designated by written notice. 5.14 j'gjjjes i0 Inj=g This Agreement shall be for the sole and exclusive benefit of the Participants and shall not be construed to confer any rights upon any other party. The participants shall never be subject to any liability in damage to any customer of the others with rights hereunder for any failure to perform under this Agreement. ..77 i ilk-=t 5.15.1 The Participants agree that If disputes arise regarding the terms or performance of this Agreement or any review or approval called for hereunder, the respective Participants or their Directors agree to meet and use their best effoits to resolve same, 5.15.2 It is not intended hereby to specify an exclusive remedy for any dispute or default, WE all remedies existing at law or in equity, including specific performance; may be utilized by Participants and shall be cumulative. Provided, however, as a necessary condition for declaration of default under this Agreement, the non -defaulting Participant shall give the defaulting Participant at least thirty (30) days' notice of default with the opportunity to cure during the notice period, A36W810973.RV1 L,r) File No. 20:99146-01 36 FcbMky 10,2000 w