HomeMy WebLinkAbout1987-11-09 Regular Meeting
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MINUTES OF THE REGULAR MEETING OF THE LA PORTE CITY COUNCIL
NOVEMBER 9, 1987
1. The meeting was called to order by Mayor Malone at 6:05
P.M.
Members of City Council. Pr.5!_sent: Mayor Norman Malone,
Councilpersons Betty Waters, John Lloyd, Ed Matuszak, Alton
Porter, Deotis Gay, B. Don Skelton, Jerry Clarke
Members of City Council Absent: Councilperson Mike Shipp
Members of Cit~ Staff Present: City Manager Bob Herrera,
City Attorney Knox Askins, City Secretary Cherie Black,
Assistant City Manager John Joerns, Administrative
Assistant to the City Manager Janie Luna, Director of
Community Development Joel Albrecht, Assistant Director of
Public Works Buddy Jacobs, Purchasing Manager Louis Rigby,
Revenue Controller Charlene Eldridge, CIP Manager Ross Cox
Other~_Present: Jimmie Ray Spradling; Don Landry, CRSS
Constructors, Inc.; Melissa Doyle, Bayshore Sun; 6 citizens
2. The invocation was given by Councilperson Waters.
3. Council considered approving the minutes of the regular
meeting held October 26, 1987.
Motion was made by Councilperson Skelton to approve the
minutes Q.L__tJ'1e October 26 J]leeting as presented. Second by
Councilperson Lloyd. The motion carried, 8 ayes and 0
nays.
Ayes: Councilpersons Waters, Lloyd, Matuszak, Porter, Gay,
Skelton, Clarke and Mayor Malone
Nays: None
4. Jimmie Ray Spradling addressed Council regarding drainage,
street repairs and mowing.
5. Council considered an ordinance setting the tax rate.
The City Attorney read: ORDINANCE 1565 - AN ORDINANCE
LEVYING TAXES UPON TAXABLE PROPERTY LOCATED WITHIN AND
SUBJECT TO TAXATION IN THE CITY OF LA PORTE, TEXAS; MAKING
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Minutes, Regular Meeting, La Porte City Council
November 9, 1987, Page 2
APPROPRIATIONS FOR SUPPORT, MAINTENANCE, AND IMPROVEMENT OF
THE CITY GOVERNMENT OF SAID CITY OF LA PORTE; FINDING THAT
ALL REQUIRED NOTICES HAVE BEEN PUBLISHED AND ALL REQUIRED
HEARINGS HELD; CONTAINING A REPEALING CLAUSE; CONTAINING A
SEVERABILITY CLAUSE; FINDING COMPLIANCE WITH THE OPEN
MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF.
Motion was made bv Councilperson Gay to adopt Ordinance
]565 as read bv the City Attorney. Second by Councilperson
Clarke. The motion carried, 8 ayes and 0 nays.
Ayes: Councilpersons Waters, Lloyd, Matuszak, Porter, Gay,
Skelton, Clarke and Mayor Malone
Nays: None
6. Council considered casting a ballot for a member to the
Harris County Appraisal District.
The City Attorney read:
THE CITY COUNCIL OF THE
BALLOT FOR THE ELECTION
DIRECTORS OF THE HARRIS
RESOLUTION 87-24 - A RESOLUTION OF
CITY OF LA PORTE, TEXAS CASTING ITS
OF A PERSON TO THE BOARD OF
COUNTY APPRAISAL DISTRICT
Motion was___lJ!g-ge bv Council'p_~rson Skelton to approve
Resolution 87-24 as read an~LJ;:Jl~J,_the City's ballot for Tom
Bartlett. Second by Councilperson Lloyd. The motion
carried, 8 ayes and 0 nays.
Ayes: Councilpersons Waters, Lloyd, Matuszak, Porter, Gay,
Skelton, Clarke and Mayor Malone
Nays: None
7. Council considered a resolution establishing a moratorium
until January 31, 1988, on building permits for permanent
signs and billboards.
The City Attorney read: RESOLUTION 87-25 - A RESOLUTION
ESTABLISHING A MORATORIUM TO EXPIRE JANUARY 31, 1988, ON
THE ISSUANCE OF BUILDING PERMITS FOR THE CONSTRUCTION OF
PERMANENT SIGNS AND BILLBOARDS IN THE CITY OF LA PORTE;
FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND
PROVIDING AN EFFECTIVE DATE HEREOF.
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Minutes, Regular Meeting, La Porte City Council
November 9, 1987, Page 3
Motion was made QL_~9JLllcilp'erson Lloyd to approve
Resolution 8I=_25_A-~_ read bv the Ci tv At tornev. Second by
Councilperson Waters. The motion carried, 8 ayes and 0
nays.
Ayes: Councilpersons Waters, Lloyd, Matuszak, Porter, Gay,
Skelton, Clarke and Mayor Malone
Nays: None
8. Council considered approving a contract to purchase potable
surface water from the La Porte Area Water Authority.
Motion__~9~___m~Loe bv Councilperson Porter to approve the
contract to Q~~Qpase potable surface water from the La
Porte Area Water Authoritv. Second by Councilperson
Matuszak. The motion carried, 8 ayes and 0 nays.
Ayes: Councilpersons Waters, Lloyd, Matuszak, Porter, Gay,
Skelton, Clarke and Mayor Malone
Nays: None
9. Council considered approval of a contract to purchase
potable surface water from the La Porte Area Authority by
the Bayshore Municipal Utility District.
Motion was made bv Councilperson Skelton to approve the
contract between the La Porte Area Water Authoritv and the
Bavshore Municipal Utilit~ District. Second by
Councilperson Gay. The motion carried, 8 ayes and 0 nays.
Ayes: Councilpersons Waters, Lloyd, Matuszak, Porter, Gay,
Skelton, Clarke and Mayor Malone
Nays: None
10. Council considered approving a contract between the La
Porte Area Water Authority and the City of Houston for
purchase of potable water from the Southeast Treatment
Plant.
Hot ion was made J:)--y__~ounc ilperson Matuszak to approve the
contract between the La Port~__Ar~a Water Authoritv and the
Citv of Houston for purchase of_Q~t?ble water from the
SO.!Jt.b_~_g,I2J~ Treatment Plant. Second by Counc ilperson Lloyd.
The motion carried, 8 ayes and 0 nays.
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Minutes, Regular Meeting, La Porte City Council
November 9, 1987, Page 4
Ayes: Councilpersons Waters, Lloyd, Matuszak, Porter, Gay,
Skelton, Clarke and Mayor Malone
Nays: None
11. Council considered approving a contract with CRSS
Constructors, Inc., for project management professional
services.
Motion was made bv CouncilDerson Matuszak to approve the
contract with CRSS Constructors, Inc. Second by
Councilperson Lloyd. The motion carried, 7 ayes and 1 nay.
Ayes: Councilpersons Waters, Lloyd, Matuszak, Porter,
Skelton, Clarke and Mayor Malone
Nays: Councilperson Gay
12. Council considered authorizing the City Manager to sign a
professional services contract with Rene Bates Auctioneers,
Inc., for City auction on December 12, 1987.
Motion was made by CouncilDerson Waters to ~Mt>>oLiz~__the
City Manager to sign a contract with Rene Bates
AuctioneerJ2. Second by Councilperson Matuszak. The motion
carried, 8 ayes and 0 nays.
Ayes: Councilpersons Waters, Lloyd, Matuszak, Porter, Gay,
Skelton, Clarke and Mayor Malone
Nays: None
13. Council considered approving Change Order #3 for the golf
course.
Motion wa~ made bv Councilperson Lloyd to app~ove Change
Order #1 for the golf course, in the amount of ~I500.00.
Second by Councilperson Gay. The motion carried, 8 ayes
and 0 nays.
Ayes: Councilpersons Waters, Lloyd, Matuszak, Porter, Gay,
Skelton, Clarke and Mayor Malone
Nays: None
14. Council considered awarding a bid for tires.
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Minutes, Regular Meeting, La Porte City Council
November 9, 1987, Page 5
Motion was made by C~~QQ11~_~L~on Clarke to award the bid
for tires to Good~~2f, as recommended by staff. Second by
Councilperson Gay. The motion carried, 8 ayes and 0 nays.
Ayes: Councilpersons Waters, Lloyd, Matuszak, Porter, Gay,
Skelton, Clarke and Mayor Malone
Nays: None
15. Council considered bids for a copy machine.
Purchasing Manager Louis Rigby recommended that all bids be
rejected due to the confusion of some bidders regarding the
bid specifications.
MQ~~QP was made bv Councilperson Waters to r~~g~ all bids
for a COpy machine and rebid the item. Second by
Councilperson Clarke. The motion carried, 8 ayes and 0
nays.
Ayes: Councilpersons Waters, Lloyd, Matuszak, Porter, Gay,
Skelton, Clarke and Mayor Malone
Nays: None
16. Administrative Reports:
City Manager Herrera reminded Council of the ribbon cutting
ceremony for Fire Station 2, to be held November 10 at 4:30
P.M.
The City Manager suggested to Council a possible workshop
meeting on November 16 for a six-month review of Sylvan
Beach Convention Center. He also announced that there
would be a meeting after the workshop with merchants
located on Broadway Street regarding the improvements soon
to be made on Broadway, and that any Council member who
wished to stay for that meeting would be more than welcome.
17. Council Action
Councilpersons Waters, Matuszak, Porter, Gay, and Skelton
brought items to Council's attention.
Councilperson Matuszak requested that someone from City
Staff attend a map exercise at the Port of Houston on
November 15.
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Minutes, Regular Meeting, La Porte City Council
November 9, 1987, Page 6
18. Council adjourned into executive session at 6:50 P.M. under
Land Acquisition and Personnel, and returned to the Council
table at 8:10 P.M.
19. There being no further business to come before the Council,
the meeting was duly adjourned at 8:10 P.M.
Respectfully submitted:
~~
Cherie Black, City Secretary
Passed & Approved this the
23rd day of November, 1987
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REOUEST FOR CITY COUNCIL AGENDA ITEM
Agenda Date Requested:
11/g/87
Requested By:
R. Herrera
Department: Administration
Report
Resolution
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Ordinance
Exhibits: Ordinance 1565
SUMMARY & RECOMMENDATION
On November 2, 1987, a public hearing was held regarding the
proposed tax rate for the City of La Porte.
The attached Ordinance 1565 adopts the following tax rate for FY
1987-88:
An Ad Valorem Tax at the rate of $.447 on $100.00 cash value
thereof, for maintenance and improvement of the City
Government of the City of La Porte
An Ad Valorem Tax at the rate of $.213 on $100.00 cash value
thereof, interest and sinking fund and principal and interest
accruing on all outstanding GO bonds and Certificates of
Obligation lawfully issued by the City of La Porte
The total tax rate is set at $.66 per $100.00 valuation and is
assessed on a ratio of 100 percent of the estimated market value.
Action Required by Council: Adoption of Ordinance 1565
Availability of Funds:
General Fund
Capital Improvement
Other
Water/Wastewater
General Revenue Sharing
Account Number:
Funds Available:
YES
NO
,
Council A e da
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ORDINANCE NO. 1565
AN ORDINANCE LEVYING TAXES UPON TAXABLE PROPERTY LOCATED WITHIN AND SUBJECT TO
TAXATION IN THE CITY OF LA PORTE, TEXAS; MAKING APPROPRIATIONS FOR SUPPORT,
MAINTENANCE, AND IMPROVEMENT OF THE CITY GOVERNMENT OF SAID CITY OF LA PORTE;
FINDING THAT ALL REQUIRED NOTICES HAVE BEEN PUBLISHED AND ALL REQUIRED HEARINGS
HELD; CONTAINING A REPEALING CLAUSE; CONTAINING A SEVERABILITY CLAUSE; FINDING
COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE:
Section 1. That there is hereby levied for the current fiscal year
beginning October 1, 1987, and ending September 30, 1988, on all real property
situated and all personal property owned within the taxable limits of the said
City of La Porte, on the first day of January, 1987, except so much as may be
exempt under the constitution and laws of the United States, this State" and the
City of La Porte, the following taxes:
(1) An Ad Valorem Tax of and at the rate of four four point seven cents
($.447) on the one hundred dollars ($100.00) cash value thereof, estimated
in lawful currency of the United States for the current expenses for the
support, maintenance, and improvement of the City Government of said City of
La Porte; and
(2) An Ad Valorem Tax of and at the rate of two one point three cents
($.213) on the one hundred dollars ($100.00) cash value thereof, estimated
in lawful currency of the United States, to pay current interest on and
provide one year's sinking fund and to pay all of the principal and interest
accruing on all outstanding general obligation bonds and certificates of
obligation lawfully issued by the City of La Porte.
That this provides the sum of total Ad Valorem tax at the rate of sixty-six
cents ($.66) on the one hundred dollars ($100.00) cash value thereof, estimated
in lawful currency of the United-States.
Section 2. All property upon which a rate of taxation is hereinabove levied
shall be assessed on a ratio of one hundred percent (100%) of the estimated
market value thereof.
Section 3. That the sums hereinafter accruing and collected from the
hereinabove taxes so levied be and the same are hereby appropriated for the
support, maintenance, and improvement of the City Government of the City of La
Porte.
Section 4. The City Council officially finds, determines, recites and
declares that all notices required by law have been published, and that a public
hearing as required by law was duly called and held, and that all matters
prerequisite to the establishment and levy of an ad valorem tax have been
accomplished, all as required by the laws of the State of Texas, and the Home
Rule Charter of the City of La Porte.
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Section 5. If any section, sentence, phrase, clause, or any part of any
section, sentence, phrase, or clause, of this Ordinance shall, for any reason, be
held invalid, such invalidity shall not affect the remaining portions of this
Ordinance, and it is hereby declared to be the intention of this City Council to
have passed each section, sentence, phrase, or clause, or part thereof,
irrespective of the fact that any other section, sentence, phrase, or clause, or
part thereof, may be declared invalid.
Section 6. All ordinances or parts of ordinances in conflict herewith are
hereby repealed to the extent of such conflict only.
Section 7. 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, Article 6252-17, Texas Revised Civil
Statutes Annotated; and that this meeting has been open to the public as
required.
PASSED AND APPROVED this the 9th day of November, 1987.
CITY OF LAPORTE
BY
Norman Malone, Mayor
ATTEST:
City Secretary
APPR~VED' ~ j
tzx tJ ~
City Attorney
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REOUEST FOR CITY COUNCIL AGENDA ITEM
Agenda Date Requested:
11/9/87
Requested By:
R. Herrera
Department:
Administration
Report
x
Resolution
Ordinance
Exhibits: Letter from Harris County Appraisal District
Ballot for Board of Directors, HCAD
Resolution 87-24
SUMMARY & RECOMMENDATION
At the City Council meeting held October 12, Council approved
Resolution 87-15, which named Tom Bartlett as the City's nominee
to the Harris County Appraisal District.
Nominations have now been completed and the attached b~llot
submitted by HCAD for a vote. The final nominees are:
Tom Bartlett
C. A. Burford
Elton Porter
C. L. Roy
E. E. Stephens
City of La Porte Resolution 87-24 will cast the City's vote for
one of the above nominees.
Action Required by Council: Approval of Resolution 87-24
Availability of Funds: N/A
General Fund
Capital Improvement
Other
Water/Wastewater
General Revenue Sharing
Account Number:
Funds Available:
YES
NO
for Cit Council A end a
~b Is?
Dat I
{JR
. Herrera
Manager
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OFFICE OF CHIEF APPRAISER
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Harris County Appraisal District
October 20, 1987
2800 North Loop West
P.O. Box 920975, Houston, Texas 77292-097E
Telephone 713-683-9200
Ms. Cherie Black
City Secretary, City of La Porte
P. O. Box 1115
La Porte, TX 77571
u Dear Ms. Black:
The Harris County Appraisal District is governed by a five-member Board selected
pursuant to the provisions of the Property Tax Code and resolutions adopted in
1981 by more than three-fourths of the voting taxing units in Harris County. One of
these five directors is selected by the governing bodies of all incorporated cities and
towns, excluding the City of Houston.
These cities are currently in the process of selecting their representative to the
Board for the two-year term beginning January 1, 1988. The initial step in the
selection process was nomination. The deadline for our receipt of nominations was
October 14, 1987.
It is now your city's right and responsibility to vote for the nominee you desire to
serve on the Board. For this purpose, we have prepared the attached ballot listing
the candidates nominated by the cities alphabetically. The governing body of each
city is entitled to one vote for the candidate of its choice from the names appearing
on the ballot.
The vote must be by resolution. The resolution, or a certified copy thereof, together
with the completed ballot, shall be delivered to the Office of the Chief Appraiser at
2800 North Loop West, Houston, Texas 77092, or P. O. Box 920975, Houston, Texas
77292-0975, on or before November 16,1987.
On or before November 30, 1987, the Chief Appraiser will count the votes cast and
declare elected the candidate who receives the highest number of votes. The results
of the election will be submitted to the governing body of each voting taxing unit
and to the candidates nominated. A tie vote will be resolved by a method of chance
chosen by the Chief Appraiser.
To assist you in the election procedure I have enclosed a suggested form of
resolution for casting the governing body's vote for the candidate of its choice.
Both the resolution and the ballot should be delivered to my office by November 16,
1987.
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Balloting for Board of Directors
October 20, 1987
Page 2
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Should you have questions regarding the above procedures, please contact our
office at 957-5291.
KEG/mjh
cc: Tax Assessor
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BALLOT
FOR
BOARD OF DIRECTORS
HARRIS COUNTY APPRAISAL DISTRICT
The following vote to elect the representative of the incorporated cities and towns,
other than the City of Houston, participating in the Harris County Appraisal District,
was determined by resolution or ordinance adopted at an official meeting of the
City Council of the Ci tv of La Porte (taxing unit) held on the 9 th
TO day of November
, 1987, in accordance with the provisions of Section
6.031 of the Property Tax Code, as amended.
The nominations received by the Chief Appraiser are listed below. Cast your ballot
by placing an "X" in the square next to the candidate of your choise.
Tom Bartlett 0
C. A. Burford 0
Elton Porter 0
C. L. Roy 0
E. E. Stephens 0
9 th day of November
, 1987.
WITNESS MY HAND this
Mayor
ATTEST:
City Secretary
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RESOLUTION NO.
87-24
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
LA PORTE ,TEXAS
CASTING ITS BALLOT FOR THE ELECTION OF A PERSON
TO THE BOARD OF DIRECTORS OF THE
HARRIS COUNTY APPRAISAL DISTRICT
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WHEREAS, the Chief Appraiser of the Harris County Appraisal District, Harris
County, Texas, has delivered to the Mayor of this city a ballot containing the names
of those persons duly nominated as candidates to serve in that position on the
,. Board of Directors of the Harris County Appraisal District representing and to be
filled by those cities and towns, other than the City of Houston, participating in said
District; and
WHEREAS, this City deems it appropriate and in the public interest to cast its
vote for the candidate of its choice to fill such position; now, therefore
BE IT RESOLVED BY THE CITY COUNCIL OFTHE CITY OF
TEXAS:
LA PORTE
Section 1. The facts and recitations set forth in the preamble of this Resolution
be, and they are hereby, adopted, ratified, and confirmed.
Section 2. That the City of La Porte cast its vote, and it
does hereby cast its vote, for' to fill the position on
the Board of Directors of the HarriS county AppralSalLJlstrlct representing and to be
filled by those incorporated cities and towns, other than the City of Houston,
participating in said District.
Section 3. That the Mayor be, and he or she is hereby, authorized and directed
to deliver or cause to be delivered an executed or certified copy of this Resolution to
the Chief Appraiser of the Harris County Appraisal District on or before November
16, 1987.
PASSED AND APPROVED this
<Hh
day of November
, 1987.
Mayor
ATTEST:
City ~ecretary
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REOUEST FOR CITY COUNCIL AGENDA ITEM
Agenda Date Requested:
XXX Report
Community Deve.
Requested By: Joel H. Albrecht
Ordinance
Exhibits:
SUMMARY & RECOMMENDATION
During the past two months the Staff has been reviewing
Ordinance 1501, the adoption ordinance for the zoning
map and the zoning laws for La Porte. As we reviewed
the history of the revision process including the,
repealing of Ordinance 780, the old zoning ordinance,
we found there was no saving clause for any portion of the
old zoning ordinance. This left staff with no ordinance to
regulate signs.
Real estate signs, portable signs and other signs of
temporary nature are regulated by city ordinance but other
signs and billboards are not.
Staff would ask that a moratorium on signs and billboards
be placed in effect until the proposed revision to Ordinance
1501 is complete and adopted by the City Council.
Action Required by Council:
Approval of resolution
Availability of Funds:
General Fund
Capital Improvement
Other
Hater/Wastewater
General Revenue Sharing
Account Number:
Funds Available:
YES
NO
Council A enda
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rt T. Herrera
City Manager
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RESOLUTION NO. 87- 25
A RESOLUTION ESTABLISHING A MORATORIUM TO EXPIRE JANUARY 31, 1988, ON THE
ISSUANCE OF BUILDING PERMITS FOR THE CONSTRUCTION OF PERMANENT SIGNS AND BILL-
BOARDS IN THE CITY OF LA PORTE; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW;
AND PROVIDING AN EFFECTIVE DATE HEREOF.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LA PORTE:
Section 1. The Planning and Zoning Commission of the City of La Porte has
scheduled a public hearing on November 19, 1987, for comprehensive amendments to
the Zoning Ordinance of the City of La Porte, regulating signs and billboards.
It is contemplated that final action on a sign ordinance will be taken by the
City Council of the City of La Porte prior to January 31, 1988. The City Council
of the City of La Porte therefore hereby establishes a moratorium, to expire on
January 31, 1988, on the issuance of building permits for the erection of
permanent signs and billboards in the City of La Porte. Real estate signs,
portable signs, and other signs of a temporary nature, presently regulated by
City of La Porte ordinance, shall be excepted from this moratorium.
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, Article 6252-17, Texas Revised Civil
Statutes Annotated; and that this 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 City Council further
ratifies, approves and confirms such written notice and the contents and posting
thereof.
Section 3. This Resolution shall be effective from and after its passage
and approval.
PASSED AND APPROVED this the 9th day of November, 1987.
CITY OF LA PORTE
Norman Malone, Mayor
ATTEST:
Cherie Black, City Secretary
APPROVED:
~cJ
Knox W. Askins, City
BEQUEST.R CI~QUUCIL AGENDA ITEt
Agenda Date Requested:
November 9, 1987
Requested By: John D. Armstron~ Department: Attorney, LPAWA
Contract Approval
Report Resolution Ordinance
Exhibits:
Contract for the Supply of POtable Water and the Construction, Financing, and Operation
of Water Treatment Transmission and Distribution FAcilities between La Porte Area Water
Authority and the City of La Porte
SUMMARY & RECOMMENDATION
City Council has seen the contract in its entirety and has approved the contract
in the past.
Bond counsel for the La Porte Area Water Authority has reviewed and approved the contract
as submitted. The only changes of substance are:
A. Section 10.01 - language has been updated to reflect the new tax reform
act of 1986;
B. Section 6.01 has been upd~ted to reflect the new financing formula, which
has been made consistent with the financing and cost formula contained
in the City of Houston's Water Sales Contract to the La Porte Area Water
Authority. A total of five Baker & Botts lawyers have reviewed the contract
and have approved it.
, ,
Action Required by Council:
Contract Approval
Availability of Funds:
General Fund
Capital Improvement
Other
Water/Wastewater
General Revenue Sharing
Account Number:
Funds Available: __ YES
NO
A
ouncil A e a
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THIS CONTRACT IS SUBJECT TO ARBITRATION
UNDER THE TEXAS GENERAL ARBITRATION ACT
CONTRACT FOR THE SUPPLY OF POTABLE WATER AND THE
CONSTRUCTION, FINANCING AND OPERATION OF WATER TREATMENT
TRANSMISSION AND DISTRIBUTION FACILITIES
THIS CONTRACT (the "ContractU) made and entered into as of
the
day of
, 19_, by and between La Porte Area Water
Authori ty (the "Authori ty.), 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"),
WIT N E SSE T H:
WHEREAS, the Harris-Galveston Coastal Subsidence District
(the uSubsidence District"), was created by the Legislature of Texas
in 1975 for the purpose of regulating the wi thdrawal of groundwater
from the area wi thin the boundaries of Harris County and Galveston
County in order to end subsidence which contributes to or precipitates
flooding, inundation or overflow of any area within the District;
WHEREAS, the Subsidence District is charged wi th the duty
and has the power to control and prevent subsidence within its
boundaries by reducing the amount of groundwater withdrawals from
all wells wi thin the Subsidence District which produce groundwater,
including those owned and operated by corporations, governmental
subdivisions or agencies and other organizations;
WHEREAS, the Ci ty and other Participants named in Section
2.01 hereof are required by the rules and regulations of the Subsidence
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District to reduce their respective withdrawals of groundwater from
their wells and replace such wi thdrawals wi th surface water which has
been properly treated for domestic use;
WHEREAS, the Authority was created 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 prov ide such fac i lit ies
to persons, corporations, municipal corporations, political subdivi-
sions and others within an area described within Section 5(b) of the Act;
~~EREAS, 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, wi thout the necess i ty of an elect ion, for the purpose, among
others, of paying the cost of such facilities and improvements;
WHEREAS, a t the request and for the benef it of the City and
such other Part ic ipan ts, the Au thori ty proposes (a) to enter in to a
contract with the City of Houston, Harris County, Texas, a municipal
corporation organized and existing under the laws of the State of Texas,
for the purchase of an undivided interest in the Pumping and Production
Capacity of the City of Houston's Southeast Water Purification Plant
(hereinafter called the "Southeast Plan t") and potable surface Water
from the City of Houston's Southeast Plant, in an aggregate amount suf-
ficient to supply the estimated potable surface Water requirements of
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the Participants through the year 1994; and (b) (i) to purchase and con-
struct the Water pumping, transmission, distribution, metering and all
other related facili ties necessary to transport potable surface ~vater
from the Southeast Plant to the Authori ty and the Water Distribution
Systems of the Participants, including the City; and (ii) to issue, sell
and deliver its revenue bonds in an aggregate principal amount sufficient
to pay in full (x) the costs of acquiring the Authority's share of the
Southeast Plant, the Transmission System and the Distribution System
and (y) other related costs including the cost of issuing such bonds;
WHEREAS, the Authori ty has heretofore entered into or will
enter into Contracts for the Supply of Potable \\later and the Construction,
Financing and Operation of Water Transmission and Distribution Facilities
with all of the Participants other than the City and all such Contracts
and this Contract (collectively, the "Water Sales Contracts") will be
substantially the same in all material respects in their terms, condi tions
and provisions;
WHEREAS, in order to comply with the rules and regulations of
the Subsidence District at the earliest feasible date, the City desires
to purchase 1vater from the Authority on the terms and conditions
herein set forth and the Authority is willing to sell 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, V.A.T.C.S. Article 4413 (32c),
and other applicable laws;
NOW, THEREFORE, in consideration of the mutual premlses and
covenants and agreements herein contained, the Authority and the City
hereby agree as follows:
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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 e~ 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 Author-
i ty, duly approved by the Ci ty, which authorizes the
issuance of any Bonds.
( 6 ) Bonds - any revenue bonds issued by the Au thor i ty, 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 Distri-
bution 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
sewer system, together
extensions, additions,
thereto.
existing waterworks and sanitary
with all present and future
replacements and improvements
(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 produc-
tion 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
Authori ty divided by the total actual production construc-
tion cost, as specified in Section 2.01 of the Houston
Contract. The initial Demand Allocation Factor is 5.25%.
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(12) Distribution System - those facilities used to transport
treated surface Water from the termination of the trans-
mission facilities shown on Exhibit "C", attached hereto,
and fully incorporated by reference herein, to
each Participant's take point.
(13) Excess Product ion Fee - the rate to be charged to the
City by the Authority for use of production capacity
above the Ci ty' s share of comrni t ted capac i ty 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 Pumpaqe Fee - the rate to be charged to the City
by the Authority for use of pumping facilities associated
wi th the Southeast Plant in excess of the Ci ty' 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 Authori ty, as
designated in Section l6(b) of the .l\ct, 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 accor-
dance with the terms and provisions of the contract at-
tached to this Contract as Exhibi t "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 ~y 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 a 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.
(2l) Operation and Maintenance Expenses - all costs of pro-
viding Water to Participants under the Water Sales
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Contracts, except for costs funded by Bond proceeds:
debt service on the Authority's Bonds and amounts re-
quired to fund any reserve fund, contingency fund,
rebate fund, or any other fund established under any
Bond Resolution, including without limitation all Opera-
tion and Maintenance Costs billed to the A.uthori ty 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) "Participants" - the Ci ty and all of the other parties
named in Section 2.01 hereof who have executed a Contract
substantially similar to this Contract. The term 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 Capacity - the maximum rate of production of
treated surface Water from the Southeast Plant, which
equals 80 MGD.
(24) Pumping Allocation Factor - the percentage of the South-
east 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 Authori ty will equal the actual construction cost
of the pumping and storage facilities paid by the Author-
i ty divided by the total actual construction cost for
such pumping and storage facilities. The initial Pumping
Allocation Factor is 2.33%.
(25) Pumping Capacity the maximum r3te of delivery of
treated surface Water from the Southeast Plant, which
equals 225 MGD (expressed as a peak hour pumping rate).
(26) Service Area - that area described ln Sections 3 and
5(b) of the .l\ct.
(27) Southeast plant - the Project described in the Houston
Contract generally, and specifically described in Exhibit
"B" to the Houston Contract.
(28) Subsidence District - the Harris-Galveston Coastal Sub-
sidence District.
(29) Transmission System - those facilities, including pipe-
lines, easements, pumping, and other devices to deliver
treated surface Water from the take point at the Southeast
Plant, shown on Exhibit "A" attached to the Houston
Contract, to that point shown on Exhibit "C" of this
Contract, which includes necessary storage and pumping
facilities to deliver treated surface water to each
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Participant.
(30) "Water" - the term n\vater" means potable treated surface
Water that has been supplied by Houston in accordance
with the Houston Contract.
(31)' Water Sales Contracts this Contract, the contracts
between the Authori ty and the, other Participants named
in Section 2.01 of this Contract, and any Contract
between the Authority and a new Participant. All Hater
Sales Contracts are and shall be in a form substantially
similar to this one.
ARTICLE II
Purchase and Construction of the Authority's Share
of the Southeast Plant and Transmission System;
Execution of Contracts
Section 2.01 With the full cooperation of the City (and the
other Participants) the Authority agrees to purchase an initial Demand
Alloca~ion Factor of 5.25% and an initial Pumping Allocation Factor of
2.33% in the Southeast Plant, in accordance with the Houston Contract,
attached hereto as Exhibit "A". 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 83.30% 4.375% 83.30% 1. 94 %
Bayshore MUD 7.67% 0.400% 7.67% 0.18%
City of Shoreacres 4.74% 0.250% 4.74% 0.11%
City of Morgans Point 4.29% 0.225% 4.29% 0.10%
*
**
IDAF - Initial Demand Allocation Factor
IPAF - Initial Pumping Allocation Factor
Sect ion 2.02 Promptly after the execution and del i very of
this Contract, and after the execution and delivery of the Houston Con-
tract by the Authority and Houston, the Authority shall proceed promptly
to (a) acquire sufficient land for all easements or rights-of-way neces-
sary to deliver Water from the Southeast Plant to the participants as
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prov ided herein: (b) cause its eng ineers to prepare detailed plans and
specifications for the construction of the Transmission System and
Distribution System: and (c) obtain the approval of all such plans and
specifications by the Texas Department of Health and all other govern-
mental agencies having jurisdiction.
Section 2.03 The pro rata share of each Participant in the
actual construction cost of the Transmission System and the Distribution
System shall be calculated when sufficient engineering and cost data
are available to the Authori ty. Each Participant, including the Ci ty,
shall approve the finalized construction cost formula and the City's
share of the actual construction cost for the Transmission System and
Distribution System to be paid by the City and the other Participants,
prior to the .Z\uthori ty' s sale of bonds to finance the Distribution
System and Transmission System.
Section 2.04 It is expressly understood and agreed that
the acquisition of land, easements, and rights-of-way, the awarding of
Contracts, the approval of plans and specifications and the approval of
changes in said plans and specifications, and the supervision of
construction of the Southeast Plant, the Transmission System, and the
Distribution System are solely within the discretion and control of the
Authority.
Section 2.05 It is expressly understood and agreed that any
obligation on the part of the Authority to acquire, construct, improve,
enlarge, extend, repair, complete or operate the Authority's share of
the Southeast Plant, the Transmission System, and the Distribution
System shall be subject to:
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(a) The availability of sufficient funds timely to pay all
of the costs of construction of the Authority's share of
the Southeast Plant and the Transmission System and the
Distribution System;
(b) The Authority's ability to obtain all sites, rights-
of way, easements, labor, equipment and materials as
required for the construction of the Authori ty' s share
of the Southeast Plant, Transmission System, and Distri-
bution System; and
(c) The Authority's obtaining all permits, licenses and ap-
provals required to construct and operate the Authority's
share of the Southeast Plant, the Transmission System,
and the Distribution System, provided the Authority
shall exercise its best efforts at reasonable expense so
to do.
Section 2.06 Any duly designated representative of the City
shall, subject to mak ing sui table arrangements through the Authori ty
Director and the Houston Director, and subject to reasonable safety
regula t ions, have access during normal work ing hours to the Sou theast
Plant, the Transmission System and the Distribution System during
construction in progress and thereafter, and may make such inspections
thereof as may be deemed necessary or desirable. Such representatives
of the City shall also have full access during normal business hours,
upon reasonable not ice, to all of the Au thor i ty' s contrac ts , books,
records and other data relating to the construction or operation of
the Authority's share of the Southeast Plant, the Transmission System,
and the Distribution System.
Sect ion 2.07 The Ci ty recognizes that the Houston Contract
may be amended from time to time, particularly in regards to the rates
for the sale, transportation, and delivery of potable water charged by
Houston to the Authority. The City agrees to be bound by such amendments
as they may occur. The Authority shall use its best efforts to negotiate
said amendments so as to benefit all Participants in the Authority's
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share of the Southeast Plant, the Transmission System and the distribu-
tion system. In any event, no amendment to the Houston Contract shall
supersede or diminish the obligation of the City to adhere to the pro-
visions of this Contract or the City's obligation to pay for its share
of the debt service attributable to any Bonds issued pursuant hereto,
or otherwise to adhere to the Bond Resolution authorizing the sale of
such Bonds.
Section 2.08 The City recognizes that the Water to be
delivered by the Authori ty hereunder will be potable treated surface
water (i) that has been purchased by and delivered to the Authority by
Houston as the operator of the Southeast Plant; and (ii) that shall
meet all appl icable pur i ty standards a t the point of del i very to the
Participant of the Texas Department of Health and all other governmental
agencies with appropriate jurisdiction, as specified in Exhibit "A".
The City has satisfied itself that such water will be suitable for its
needs. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, \lliICH EXTEND
BEYOND THE DESCRIPTION ABOVE.
Section 2.09 The City may have the right to sell and deliver
Water to bulk purchasers thereof or other Participants who are not
customers of the City System, provided (a) all Water sold and delivered
to any such purchaser or Participant, for all purposes of this Contract,
shall be treated as a part of the Water delivered by the Authority to
the City hereunder, (b) the City shall not be relieved of its obligations
hereunder to pay for all such Water; (c) the Authority shall never be
required, without the written approval of all other Participants, to
deliver to the City any Water in excess of that resulting from the
City's share of the Demand Allocation or Pumping Allocation Factor in
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the Southeast Plant: and (d) the City will not enter into any take-or-
pay contract whereby a person agrees to take, or to take or pay for
Water provided to the City under this Contract or otherwise agrees to
purchase any Water provided to the City under this Contract without
the prior written consent and approval of the,Authority.
ARTICLE III
Issuance of Bonds
Section 3.01 At such time as the Board deems it appropriate,
after considering the advice of its financial advisor and after the
" Authority has entered into Water Sales Contracts with all of the
Participants, the Authority will exercise its best efforts to issue,
se 11 and del i ve r, in one or more series, its Bonds, payable solely
from the charges of the Authority payable under such Water Sales Con-
tracts, in the aggregate principal amount of $
or such
lesser amount as may be necessary or desirable in the opinion of the
Board to pay for the cost of acquisition, purchase or construction of
the Authority's share of the Southeast Plant, the Transmission System
and the Distribution System and all related costs including without
limitation initial Operation and Haintenance Expenses, all financing,
accounting, eng ineering, legal, printing and other expenses and costs
incurred in issuing such Bonds, interest on the Bonds and operating
and maintenance expenses of the Authori ty' s share of the Southeast
Plant and the Transmission System and the Distribution System during
the period of construction, and amounts necessary to fund the interest
on and sinking fund established to provide for the payment of the in-
terest on and the principal of, the Bonds and any reserve fund, contin-
gency fund, operating reserve fund or other fund provided for in the
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Rond Resolution, plus an amount sufficient to pay and reimburse the La
Porte for the Authority's administrative and overhead expenses thereto-
fore incurred and directly attributable and chargeable to the acquisi-
tion of the Authority's share of the Southeast Plant, the Transmission
System and the Distribution System.
Section 3.02 \>Jhen the Authority desires to issue Bonds, it
shall del i ver to the Ci ty and to La Porte for the ir approval as to
substance and form a proposed Bond Resolution (complete except for
interest ra tes , name of the ini t ial purchaser or purchasers of the
Bonds and the discount or premium thereon) and the Authority's estimate
of the amount requ i red to (a) payor prov ide for the payment of (i)
all interest on, and principal of, the Bonds as and when the same
shall become due and payable and (ii) all reserve, contingency and/or
other funds provided for in such Bond Resolution and (b) fulfill the
terms of any agreement or covenant made by the Authori ty wi th the
owners of such Bonds or any person on their behalf. If the City con-
sents to such Bond Resolution or fails to object thereto as provided in
Section 3.03 hereof, the Authority shall thereafter be fully authorized
to issue such Bonds and to charge and collect the monthly minimum charge
specif ied ln Section 7.01 hereof from the Ci ty in respect thereof.
Section 3.03 Within fifteen (15) days of the receipt of the
Authority's proposed Bond Resolution, the City shall either consent
thereto (as evidenced by the adoption of an ordinance or resolution of
its City Council) or institute arbitration proceedings as provided here-
in to settle any claim, objection or controversy which the City might
raise concerning the form of the proposed Bond Resolution, otherwise
any such claim, objection or controversy shall be deemed waived. Issu-
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ance of the Bonds shall not occur until arb i tra t ion, if any, is concluded.
Sect ion 3.04 Promptly after the City and La Porte approve
the proposed Bond Resolution, the Authority shall proceed with the
preparation of such data, materials and documents as may be necessary
in the opinion of its financial advisor to ,facilitate the sale and
del ivery of the Bonds, and the Ci ty agrees promptly to furnish the
Au thori ty wi th all such f inanc ial information and other da ta as may
reasonably be requ i red by the .i\u thori ty in the sale of the Bonds in
"compl iance wi th all appl icable laws, rules and regulat ions; prov ided,
however, that no representation, covenant or warranty of the Ci ty,
except as contained in this Contract, shall be included by the Authority
in any sales documents in connection with the sale of the Bonds without
the approval of the City. Following the sale and delivery of the Bonds,
the Authority shall furnish the City with a debt service schedule
showing the amounts required to pay all interest on and principal of
the Bonds as the same shall become due and payable.
Section 3.05 All Bonds shall be authorized, executed, issued,
sold and delivered in substantial compliance with the provisions of the
Act, including without limitation Section 13 thereof, and the Texas
Bond Procedures Act of 1981, as supplemented and amended. The proceeds
of sale of the Bonds, after deducting the costs of issuance and funding
any debt serv ice, reserve, cont i ngency, escrow or other funds which
are required by the Bond Resolution to be funded from such proceeds,
shall be deposited into the special construction fund provided for in
the Bond Resolution and used to pay the costs of acquisition, purchase
and construction of the Authority's share of the Southeast Plant, the
Transmission System and the Distribution System.
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Section 3.06 In case of any deficiency in such special con-
struction fund to payor provide for the timely payment of the costs
of acquisition and construction of the Authority's share of the Southeast
Plant, the Transmiss ion System and the Distribution System, the Authori ty
shall proceed in the manner provided above to issue, sell and deliver
such further or additional series of its Bonds, as may be necessary to
prov ide funds for such purpose, and the Ci ty agrees to ass is t and
cooperate with the Authority in whatever means reasonably possible to
expedite such issuance and sale of additional Bonds and to avoid delays
in construction or defaults of construction payments.
Any surplus
funds on hand in such special construction fund, after payment of all
costs of acquisition or construction of the Authority's share of the
Southeast Plant, the Transmiss ion System and the Distribution System,
and all expenses of issuing such bonds, and after funding all reserve,
escrow, sink ing or other funds requ ired by the Bond Resolu t ions ( s) to
be so funded, shall be transferred to and deposited in the debt serVlce
fund or sinking fund created by the Bond Resolution to provide for the
payment of the principal of, and interest on, such 30nds.
ARTICLE IV
Operation of the Southeast Plant; Sale and Delivery of Water
Section 4.01 The City recogn i zes tha t, pursuant to the terms of
the Houston Contract, the Authority is not entitled to operate the
Southeast Plant, but rather is a customer and equitable owner of a
portion of said plant. The Authority shall be responsible for operating
and maintaining the Transmission System and the Distribution System.
Section 4.02 In accordance wi th the terms and subj ect to the
conditions as set forth in this Contract and the Houston Contract, the
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Authority shall sell and deliver (or cause to be delivered) to the City
at the points of delivery hereinafter specified, and the City agrees to
purchase from and pay the Authority for the potable Water used by the
City. The City is required to make payments to the Authority even if
no Water is delivered to the City by the Authority in accordance with
the provisions of Section 6.05.
The uni t of measurement for Water del i vered hereunder shall be
1,000 gallons of water U. S. Standard Liquid Measure.
Subject to the first paragraph of this section, the City shall
be entitled to receive the entire amount of the City's share of the
Demand Allocation Factor and Pumping Allocation Factor. The City may
take Water from the Southeast Plant through the Authority Transmission
System, but may not take Water from the Southeast Plant that exceeds
the City's share of production Capacity of the Southeast Plant multi-
pI ied by Ci ty' s then current share of the Demand Alloca t ion Factor,
nor may City take Water from the Southeast Plant through the Authority's
Transmission System at a rate which exceeds the Ci ty' s share of the
Pumping Capacity of the Southeast Plant multiplied by the City's
then current share of Pumping Allocation Factor.
In the event that the Southeast Plant is not being operated at its
production Capacity or its Pumping Capacity, the City may, with the
agreement of the Authori ty Director and the Houston Director, use a
portion or all the unused production Capaci ty or Pumping Capaci ty of
the Southeast Plant during a billing period. When such additional
Production Capacity or Pumping Capacity is used, the City shall pay
the Excess production Fee or the Excess Pumpage Fee, or both, as the
case may be, as are established in Section 4.05 of the Houston Contract,
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'attached hereto as Exhibit "A", and billed by Houston to the Authority.
Nothing herein shall be construed to limit or frustrate the right
of City, the Authority or any other Participant to enter into agreements
for the al teration of any Participant's share of the Demand Allocation
Factor or Pumping Allocation Factor.
NOTICE: In addition, the Authority reserves the right to limit the
amount of Water actuallv received by the City (by the use of flow regu-
lators, throttling devices or other restrictive metering devices) to the
amount of reserved production or pumping capacity of the City, and at an
instantaneous rate equal to said production capacity or pumping capacity.
Section 4.03 In consideration of and subject to the other terms
and conditions of this Contract, the Authority shall make, and the City
shall 'take, delivery of Water at the points of delivery specified in
Exhibi t "c" annexed hereto and hereby made a part of this Contract. In
the event that the City desires Water to be delivered at a substitute
or additional point of delivery, the City shall give the Authority
written notice and the full particulars with respect thereto and such
substitute or additional point of delivery will be established by the
mutual agreement of the parties; provided, however, any cost or additional
cost associated with any such substitute or additional point of delivery
shall be borne by the City and the Authority shall have no obligation
to effect the delivery of Water at any such delivery point until all
such costs have been paid or reasonably provided for in the opinion of
the Board. Title to, possession and control of and responsibili ty for
all Water deliverable to the City hereunder shall remain in the Authority
up to the discharge side of the Authority's meter at each of the points
of delivery specified herein or pursuant to other provisions hereof
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whereupon title to, possession and control of, and responsibility for
all such Water shall immediately pass to and vest in the City. Each
party hereto shall save and hold the other harmless from all claims,
demands and causes of action which may arise while said Water is under
its ownership and control.
Section 4.04
It is recognized and understood by both parties to
this Contract that the City now owns and operates a system of wells
producing Water and that the City may elect to attempt to acquire and
operate addi tional wells, subject to the approval of all regula tory
authorities. While nothing in this Contract shall obligate the City to
continue the operation of its own Water wells, the Ci ty nevertheless
agrees that the Water supplied hereunder will be its principal source
of Water, and if it continues the operation of its moJn Water wells,
the City will coordinate the production therefrom in such manner as to
minimize large daily fluctuations in the quantity of Water taken under
this Contract.
ARTICLE V
Metering Equipment
Section 5.01 The Authority shall install, operate and maintain at
its expense the necessary measuring equipment of standard type for
measuring properly the quantity of Water delivered under this Agreement.
Such measuring equipment shall be located on Authority's supply main at
each point of delivery.
Such meter or meters and other equipment so
installed shall remain the property of Authority. Each of the partici-
pants shall have access to such measuring equipment at all reasonable
times, to inspect and to employ an independent laboratory to check
measuring equipment, but the reading, calibration and adjustment thereof
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shall be done only by the employees or agents of Authority.
For the
purpose of this Contract, the original record or reading of the main
meter shall be the journal or other record book of Authority in its
off ice in which the records of the employees or agents of Authori ty
who take the reading are or may be transcribed. Upon written request
of any of the Participants, the Authority will provide a copy of such
journal or record book, or permi t them to have access to the same in
the office of Authority during reasonable business hours.
Sect ion 5.02 Cal ibrat ion of Meters Once each Fi scal Year, on a
date as near the end of such Fiscal Year as practicable, the Authority
shall calibrate its meters at each point of delivery (and if requested
in writing by the receiving Participant, in the presence of a represen-
tative of such receiving Participant), and the parties shall jointly
'.
observe any adjustments which are made to the meter in case any adjust-
ments shall be necessary, and if the check meter hereinafter provided
for has been installed, the same shall also be calibrated by the re-
ce i v ing Partic ipan t in the presence of a representa t i ve of Author i ty
and the parties shall jointly observe any adjustment in case any
adjustment is necessary.
If the City shall in .writing request the
Authority to calibrate its meter and the Authority shall give to the
City forty-eight (48) hours wri t ten notice of the time when any such
calibration is to be made and a representative of the City is not
present at the time set, the Authority may proceed with calibration
and adjustment in the absence of any representative of City.
Section 5.03 Testing of Meters. If the City or the Authority at
any time observes a variation between a main delivery meter and the
check meter, if any such check meter shall be installed, such party
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will promptly notify the other party, and the parties shall then cooperate
to procure an immediate calibration test and joint observation of any
adjustment and the malfunctioning meter shall then be adjusted to
accuracy. Each party shall give the other party forty-eight (48)
hours' notice of the time of any test or meter so that the other party
may conveniently have a representative present. In addition, any
Participant may request the Authority to provide a periodic calibration
test of the measuring equipment, for any reason. If the calibration
..test shows that the Authority's meter is accurate within the below-
described tolerances, then such Participant shall pay for the test
performed. If the calibration test shows that the Authority's meter
is not accurate wi thin the below described tolerances, then the Authori ty
shall pay for said meter calibration test.
Section 5.04 Adjustments to Meters If, upon any test, the
percentage of inaccuracy of metering equipment is found to be in excess
of three percent (3%), reg istra t ion thereof shall be corrected for a
period extending back to the time when such inaccuracy began, if such
time is ascertainable, and if such time is not ascertainable, then for
a period extending back one-half (1/2) of the time elapsed since the
last date of calibration, but in no event further back than a period of
six (6) months. If, for any reason, the main meter is out of service
or out of repair so that the amount of Water delivered cannot be
ascertained or computed from the reading thereof, the Water delivered,
through the period such meter is out of service or out of repair, shall
be estimated and agreed upon by the parties thereto upon the basis of
the best data available. For such purpose, the best data available
shall be deemed to be the registration of any check meter if the same
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has been installed and is accurately registering. Otherwise, the best
data available shall be deemed any other meters in the transmission
line or treatment plant which can be related to the main delivery meter.
If no other meters in the system are operational which will allow
determination of delivered quantity, then the Authority shall determine
the amount of Water delivered during such period which may be estimated
(i) by correcting the error if the percentage of error is ascertainable
by calibration test or mathematical calculation, or (ii) by estimating
the quantity of delivery by deliveries during the preceding periods
under similar conditions when the meter was registering accurately.
ARTICLE VI
Rates and Charges
Section 6.01 The Ci ty and the Authori ty recogni ze the statutory
and contractual duty of the Authority to fix and from time to time to
alter and revise the rates and charges for Water delivery services to
be furnished and made available to the Participants so that the revenues
received by the Authority therefrom will at all times be not less than
an amount sufficient to:
(a) Payor provide for the payment of all expenses (including but
not 1 imi ted to Operation and Maintenance Expenses) incurred
by the Authori ty and billed to the Authori ty by Houston in
producing, treating, and pumping the Water actually delivered
to the City:
(b) Pay all expenses of the Authority incurred in connection with
the Transmission System and Distribution System, including
but not limited to operation and maintenance expenses connected
with the Transmission System and Distribution System; and
(c) Payor provide for the payment of:
(i)
all of the premium, if any,
principal of, all Bonds when
become due and payable; and
and interest on, and the
and as the same shall
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(ii) any sinking fund, and all reserve, contingency and
other fund payments to be made in respect of any Bonds
when, and as the same shall become due and payable; and
(iii) fulfill the terms of any agreements or covenants with the
owners of any Bonds and/or wi th any person on their behalf.
The City recognizes that the Authority must fix and from time to
time alter and revise its rates and charges for Water delivery services
from the Southeast Plant through the Authori ty' s Transmission System
and Distribution System so that the gross revenues and the net revenues
actually received by the Authority from the Participants will produce
revenues sufficient as aforesaid on the basis of actual cash requirements,
with full allowance being made for delinquencies and costs of collections.
Section 6.02 The parties further recognize that the rates and
charges payable hereunder and under the other Water sales contracts
will be the only source of funds (other than bond proceeds) available
to the Authority with which to discharge its obligations hereunder, and
further, that the Authority is not organized for profit and that its
rates and charges should be at all times the lowest rates and charges
which are consistent with the aims and objectives of this Contract, the
e ff ic ient and economical prov is ion of Water del i very serv ices to all
Participants now or hereafter served by the Authority and good business
management on the part of the Authority.
Section 6.03 For the services rendered and to be rendered by the
Authority under this Contract, the City agrees to pay to the Authority,
at the time and in the manner hereinafter set forth, so long as this
Contract is in force and effect, the rates and charges established as set
forth in this Contract.
Section 6.04 Notwithstanding any term or provision herein to the
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contrary, the City shall make payment of all rates and charges payable
hereunder to the Authority without regard to whether the Authority has
completed the acquisition, construction, improvement, enlargement, ex-
tension, or repair of its share of the Southeast Plant, or of the
Transmission System or the Distribution System, without regard to whether
the Southeast Plant, the Transmission System, or the Distribution
System is operating, or is operable, or its output is suspended, inter-
rupted, reduced or curtailed or has been terminated or abandoned,
~entirely or in part, and without regard to any other condition or cause.
Section 6.05 On or before May 1 of each year, the City (and each
of the other Participants) shall submit its best estimate of the volume
of Water it will purchase from the Authority during the Fiscal Year
commencing on the following October 1. On or before June 1 of each
year, the Authori ty shall then prepare and submit to the Ci ty (and
each of the other Participants) the Authority's best estimate of the
costs and expenses which will be incurred by the City to purchase Water
from the Authority, including all rates and charges specified above,
during the Fiscal Year commencing on such October 1. The total of all
such estimated costs and expenses, after deducting any surplus funds
which may be on hand or after add ing such amount as may be deemed
reasonable to restore during the year an~ deficiency of funds on hand,
shall then be divided by the estimated total volume of Water which will
be delivered to all of the Participants during said year. The quotient
(expressed in dollars per thousand gallons, the "Budgeted Unit Expense")
shall be used, subject to the remaining provisions of this Article VI,
for billing purposes during said Fiscal Year.
Section 6.06 In the event the Authority experiences any material
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variation in the costs and expenses of operating and maintaining the
Project or in the volume of Water delivered thereby, it may adjust the
Budgeted Unit Expense by whatever amount is necessary, in the Board's
opinion, provided (a) written notice with respect thereto, specifying
the material facts involved, is given to the City and each of the other
participants and (b) the adjustment shall not be effective until the
first day of the second month following the receipt of such notice, ex-
cept any adjustment resulting from action taken in any emergency and any
decrease in the Budgeted Unit Expense may be made effective with the
next monthly statement submitted to the City (and the other Participants).
Section 6.07 The Authority is empowered to establish and fund such
reserve funds as it deems necessary and prudent for the operation of
the Authority's share of the Southeast Plant, the Transmission System,
and the Distribution System.
Amounts necessary to fund such reserve
funds shall be chargeable to the City (and the other Participants) as
a portion of the Budgeted Unit Expense. Said reserve funds may include
(but not necessarily be limited to) a reserve fund for the payment of
principal and interest on the bonds, an operating reserve fund, a con-
tingency reserve fund, and a capital repair reserve fund. Said reserve
funds may only be established by resolution or order adopted by the
Board. Further, said reserve funds may be funded, in whole or in part,
by proceeds from the sale of the Bonds, or by proceeds obtained by the
Authority from authorized Operating Charges (or capacity charges, as
the case may be) collected from all Participants.
ARTICLE VII
Billing and Payment
Section 7.01 On or before the tenth (10th) day of each
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calendar month commencing 10, 19_, and continuing
thereafter throughout the term of this Contract, the Authority shall
submit to the City (and to each of the other Participants) a statement
invoicing the Authority's charges for the previous billing period.
Each such statement shall specify (a) the volume of the Water delivered
to the City during such month multiplied by the Budgeted Unit Expense
(as adjusted, if such be the case); (b) the Production and Pumping
Operation and Maintenance Expenses due by the City in respect of such
"month (calculated on the basis of the actual volume of Water delivered
to the City); (c) the City's share of Operation and Maintenance Expenses;
(d) the City's monthly minimum charge due by the City pursuant to the
prov is ions of th is Contract; and (e) the total of all such charges.
The City shall pay each such statement promptly upon its receipt thereof,
and any amount not pa id wi th in forty (40) days of the date of sa id
statement shall bear interest at the rate of ten percent (10%) per
annum until paid and, if any part of the amount past due and unpaid
(including interest) is collected by the Authority through the services
of an attorney, there shall be added thereto the amount of a reasonable
attorney's fee.
Notwithstanding the above, and regardless of whether the City actu-
ally takes Water from the Authority, the City shall pay, as the same
becomes due and payable, a monthly minimum charge which represents the
City's share of principal and premium (if any) plus interest charges
on all Bonds issued pursuant to this Contract (together with all funding
requirements for all reserve and other funds established under any Bond
Resolution). Said monthly minimum charge shall be calculated as follows:
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MONTHLY MINIMUM CHARGE =
{~2 X Bh1 X B}+~~ X E)+G X +~2 X +(~ X H)
A - The total of all principal and mandatory sinking fund payments
of, and premium on, all outstanding Bonds due within the next
twelve (12) months, the net proceeds of which have been or
are to be used for Production Capacity and Pumping Capacity.
B - Percentage of City's share of the Authority's Initial Demand
and Pumping Allocation Factor in Section 2.01 of Houston
Contract. In this instance, the Authority's share is 100% and
the share of each Participant is as follows:
La Porte - 83.30%
Morgan's Point - 4.29%
Shoreacres - 4.74%
Bayshore Municipal Utility District - 7.67%
C - Total interest due on all outstanding Bonds due within the
next six (6) months, the net proceeds of which have been or
are to be used for Product ion Capac i ty and Pump ing Capac i ty.
D - The total of all principal and mandatory sinking fund
of, and premium on, all outstanding Bonds due within
twe 1 ve (12) months, the net proceeds of whi ch have
are to be used for the Transmission System.
payments
the next
been or
E - Percentage of the City's share of the total cost to construct
Transmission System, as established in Section 2.03 of this
Contract.
F - Total interest due within the next six (6) months on all out-
standing bonds, the net proceeds of which have been or ar~ to
be used for the Transmission System.
G - The total of all principal and mandatory sinking fund payments
of, and premium on, all outstanding Bonds within the next
twelve (12) months, the net proceeds of which have been or
are to be used for the Distribution System.
H - Percentage of the City's share of the total cost to construct
the Distribut ion System, as establ ished in Sect ion 2.03 of
this Contract.
I - Total interest due within the next six (6) months on all out-
standing bonds, the net proceeds of which have been or are to
be used for the Distribution System.
The proceeds of the Bonds used for a particular purpose shall
include: (i) the Authority's costs of issuing such Bonds: (ii) any
amounts deposited to a fund or funds pursuant to the Bond Resolution
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authorizing such Bonds; and (iii) the proceeds of any Bonds issued to
refund such Bonds. If Bonds are issued for more than one of the purposes
1 isted above, or for any other purpose, the Authori ty shall allocate
such Bond proceeds pro rata in accordance with such uses.
Section 7.02 In the event the City fails to pay any statement
when it is due and payable, the Authority may give notice of such
delinquency to the City and if all statements then due and uD?aid,
including interest thereon, are not paid within thirty (30) days after
the delivery of such notice, then the City agrees that (a) the Aut~ority
shall be au thor i zed, at its opt ion, to file su i t for the collection
thereof and to collect any amounts due and unpaid, together with interest
thereon at the maximum legal rate and reasonable attorney's fees, and
(b) the Authority may, at its option and in addition to all other available
remedies, terminate the delivery of Water to the City under this Contract
until all amounts due and unpaid are paid in full as herein specified.
Section 7.03 In order to assure obtaining the lowest possible
interest cost with respect to the Authority's Bonds, the City agrees
that it is in its best interest to establish a reliable record of
payment of the Au thor i ty' s rates and charges. Accord i ng ly, the City
further agrees that it shall be uncond i tionally obI iga ted to pay all
sums payable to the .l\u thor i ty hereunder and it shall pay the same
without set-off, counterclaim, abatement, suspension, or diminution
except as otherwise expressly provided herein, and this Contract shall
not terminate, nor shall the City have any right to terminate this
Contract, nor be entitled to the abatement of any payment or any reduc-
tion thereof, nor shall the obligations hereunder of the City be other-
wise affected for any reason that might be considered failure of consi-
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deration, eviction or constructive eviction, destruction or damage to
the Authority's share of the Southeast Plant, the Transmission System,
or the Distribution System, failure of the Authority to perform or ob-
serve any agreement, whether expressed or implied, or any duty, liabi-
lity or obligation arising out of or connected with the Contract, it
being the intention of the parties that all sums required to be paid by
the City to the Authority hereunder shall continue to be payable in all
events and the obligations of the City hereunder shall continue unaffec-
ted, unless the requirement to pay the same shall be reduced or termin-
" ated pursuant to an express provision of this Contract.
If the City
disputes any amount to be paid to the Authority, the City shall none the-
less promptly make payments as billed by the Authori ty, and if it is
subsequently determined by agreement, arbitration, regulatory decision
or court decision that such disputed payment should have been less, the
Authority will then make proper adjustments to all Participants so that
the Participant will receive credit for its overpayments. Nothing con-
tained in this Section 7.03 shall be construed to release the Authority
from performance of any of the agreements on its part in this Contract.
ARTICLE VIII
Depository; Budget and Audits
Section 8.01 Pursuant to the prOVisions-of Section 16(a) of
the Act, the Board shall select such depository or depositories as it
deems prudent for the funds of the Authority.
Section 8.02 On or before June I or each year the Board shall
cause to be prepared a tentative budget for the ensuing Fiscal Year.
Said tentative budget shall be delivered by the Authority to the City
and the other Participants, which shall have an opportunity to prepare
and submit to the Board its comments thereon.
Said comments shall be
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delivered by the Board to the Authori ty and the other Participants
within 30 days of the receipt of the tentative budget. Thereafter, the
Board shall review the comments from the City and all other Participants
and shall prepare its budget on or before August I for the ensuing Fis-
cal Year. Said Budget, when prepared, shall be delivered to the City.
Section 8.03 Pursuant to the provisions of Section 16(b) of
the Act, the Board shall cause an audit of its affairs to be ~repared
by an independant Certified' Public Accountant or an independant firm
of Certified Public Accountants. A written report of the audit shall
be delivered to each member of the Board not later than 90 days after
the close of each Fiscal Year. Copies of the audit shall be delivered
to the office of the Authority, one of which shall be kept on file and
shall constitute a public record open to inspection by any interested
person or persons during normal office hours of the l\uthority. One
copy of the audit shall be delivered to each Participant. The cost of
the aud i t shall be pa id by the Authori ty, and shall be an Opera t ion
and Maintenance Expense.
ARTICLE IX
Covenants of the Authority
Section 9.01 The Authority represents and covenants that (a)
it is duly authorized and empowered to enter into this Contract and (b)
it has and will have, throughout the term of this Contract, good right
and lawful power to execute, deliver and perform its obligations here-
under.
Section 9.02 The Authority covenants and agrees that it will
exercise its best efforts (a) to operate, maintain and manage the
Authority's share of the Southeast Plant, the Transmission System, and the
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Distribution System or cause the same to be operated, maintained and
managed in an efficient and economical manner in accordance with stan-
dards normally used by u,tilities owning like properties and in accordance
with the standards established in Exhibit "Aft and (b) to make or cause
to be made all needed replacements, additions, betterments and improve-
ments thereto in such manner that the efficiency of the Authority's
share of the Southeast Plant, the Transmission System, and the Distri-
bution System shall be fully maintained: provided, however, the Autho-
. ri ty may temporarily interrupt or reduce deliveries of Water to the
Ci ty if the Authori ty determines that such interruption or reduction
is necessary in case of emergencies or to install equipment, make
repairs, replacements or inspections, or perform any other maintenance
work on the Authority's share of the Southeast Plant, the Transmission
System, the Distribution System or any part thereof. The Authori ty
shall inform the City of any such planned interruption or reduction,
giving the reason therefor, and will attempt to schedule the same at a
time which will cause the least interference with the o;>erations of
the Participants. The foregoing is subject to the provisions of the
Houston Contract.
Section 9.03 The Authority covenants and agrees that it will
comply with all terms, covenants and provisions of the Houston Contract,
and will exercise its best efforts to enforce compliance by Houston of
its obligations thereunder in accordance with the respective terms
thereof.
Section 9.04 The Authority covenants and agrees to use its
best efforts to collect all charges due for Water supplied by it pursu-
ant to the Water Sales Contracts as the same shall become due, and shall
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at all times maintain and promptly and vigorously enforce its rights
against any Participant which does not pay such charges when due.
Sect ion 9.05 , The Au thori ty covenants and agrees to enforce
diligently the provisions of the Water Sales Contracts and shall duly
perform its covenants and agreements thereunder. The Authori ty shall
not consent or agree to, or permit any rescission of or amendment to,
any Water Sales Contract which will materially impair or adversely
affect the rights of the Authority thereunder or the rights or security
of the owners of any Bonds. Any action by the Authority in violation
of the foregoing covenant and agreement shall be null and void as to
the Authority and any other party to any Water Sales Contract.
Sect ion 9.06 In any and all deal ing s between the Part ic ipants,
the Authority covenants to act in a matter comporting with accepted
standards of good faith and fair dealing.
Section 9.07 The Authority covenants and agrees to abide by
the terms of the conservation plan as adopted by the Authority, attached
hereto as Exhibit D, and to monitor and require compliance by all
Participants of said conservation plan.
ARTICLE X
Covenants of the City
Section 10.01 The City represents and covenants that (a) it
is duly authorized and empowered to enter into this Contract and (b) it
has and will have, as long as any Bonds are outstanding, good right and
lawful power to execute, deliver and perform its obligations under
this Contract and to fix and collect rates and charges for the service
provided by the City System sufficient to satisfy such obligations.
Section 10.02 Notwi thstanding any term or provision hereof
or in the Houston Contract to the contrary, the obligation of the City
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to make the payments under section 7.01 hereof shall be payable solely
from the revenues and rece ipts of the City System.
Such obligation
may be characterized as an obligation to pay on a "take or pay. basis
whether or not:
(a) The Southeast Plant, the Transmission System, and the
Distribution System or any part thereof is completed, is
operating or operable or its output is suspended, inter-
rupted, curtailed or terminated in whole or in part; or
(b) Any \~a te r is del i vered or prov ided under this Contract.
Said obligations shall not be deemed to constitute a debt of
the City or a pledge of its faith and credit; provided, however, nothing
herein contained shall be construed as preventing the Ci ty, in its
sole discretion, from making any such payment from sources other than
said reyenues and receipts.
Such obligation to make payments from
the revenues and rece ipts of the Ci ty System shall be a!Jsol ute and
uncond i t ional and shall cons t i tu te an opera t ing expense of the City
System for all purposes.
Section 10.03 The Ci ty covenants and agrees to establ ish,
maintain and collect rates and charges for the service provided by
the City System which shall produce revenues and rece ipts a t leas t
suf f ic ient to enable the Ci ty to pay the Au thori ty, when due, all
amounts payable by the City under this Contract and to pay any and all
such other amounts payable from, or which might constitute a charge and
a lien upon, the revenues and receipts derived from the operation of
the City System, including all operation and maintenance expenses and the
principal of, premium, if any, and interest on all revenue bonds and
other obligations related to the City System.
Section 10.04 The City covenants and agrees that it shall
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(a) at all times operate the properties in the Ci ty System and the
business in connection therewith in an efficient manner and at a
reasonable cost, (b) at all times maintain the City System in good
repair, working order and condition, and (c) from time to time make all
necessary and proper repairs, renewals, replacements,- additions,
betterments and improvements with respect to the City System so that
at all times the business carried on in connection therewith shall be
properly and advantageously conducted; provided, however, this covenant
shall not be construed as requiring the City to ex~end any funds which
are derived from sources other than the operation of the City System
and provided further that nothing herein shall be construed as preventing
the City from doing so.
Section 10.05 The City covenants and agrees that during the
term of this Contract (and any ex tens ion thereof) it will not se 11 or
otherwise dispose of or encumber all or substantially all of the City
System; provided, however, that the City may, in the ordinary course of
business, abandon, sell or otherwise dispose of any property or equipment
included in the City System if the City determines in good faith that
such property or equipment is surplus, obsolete or otherwise not required
for the efficient operation and maintenance of the City System.
Sect ion 10.06 The City covenants and agrees that it shall take
no action the effect of which would be to prevent, hinder or delay the
Authori ty from the timely ful f illment of its obligations under this
Contract.
Section 10.07 The City convenants and agrees that it shall
not (a) issue any bonds, notes or other evidences of indebtedness, (b)
incur lease obligations which, under generally accepted accounting
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princ iples, would appear as a 1 iabil i ty on its balance sheet or (c)
enter into an agree~ent with any party other than the Authority to take
or pay for Water, which bonds, notes, evidences of indebtedness, lease
or agreement is payable from the revenues derived from the City System
on a pari ty wi th, or superior in right of payment to, the operating
expenses of the City System. The City represents, covenants, and agrees
that the payments due to the Authority under this Contract are operating
expenses of the City System.
Section 10.08 (A) The City covenants and agrees with the
Authority for the benefit of the Authority, the other Participants, the
holders of the Bonds, and any other person interested in the exclusion
from gross income for federal income tax purposes of the interest on
(and orig inal issue discount, if any, wi th respect to) the Bonds as
follows:
(a) No action will be taken by the City, and there will be
no omission of any action by the City, which act or omission will
adversely affect any exclusion from gross income for federal income
tax purposes of interest on the Bonds,and, in particular, shall
comply with those provisions of Section 103 a~d Sections 141 through
150 of the Internal Revenue Code of 1986, as amended (the "Code"),
that affect the exclusion from gross income for federal income tax
purposes of the interest on the Bonds.
(b) The City will not
arrangemen t) for the sale of
pursuant to this Contract that
from gross income for federal
on the Bonds.
enter in to any contrac t (or other
Water acquired from the Authori ty
will adversely affect the exclusion
income tax purposes of the interest
(c) The City shall not take, or omit to take, any action if
such action or omission would cause the Bonds to be federally
guaranteed, within the meaning of Section l49(b) of the Code.
(B) The City represents and warrants that it is not now a
party to any contract whereby a person agrees to take or pay for Water
delivered by the Ci ty System.
The Ci ty further covenants and agrees
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that, prior to entering into any contract whereby a person agrees to
take, or to take or pay for Water provided to the City under this
contract or otherwise agrees to purchase any Water provided to the
City under this Contract, the City shall notify the Authority of its
intent to enter into such contract.
As soon as practicable after
receipt of such notice, the Authority shall advise the City as to
whether, in the opinion of counsel of recognized standing in the field
of law relating to municipal bonds selected by the Authority, the
"entering into of such contract would result in a violation of the
foregoing covenant.
The City agrees not to enter into such contract
if the Authority advises the City that such violation will or might
result therefrom.
section 10.09 Nothing in this Article X shall preclude the
City from issuing bonds, notes or other evidences of indebtedness for
the purpose of financing necessary and proper repairs, renewals,
replacements, additions, extensions and improvements of the City System
provided that such bonds, notes and other ev idences of indebtedness
shall be payable solely and exclusively from the net revenues of the
Ci ty System (after the payment of the operating expenses of the City
System) or from revenues derived from ad valorem taxes or both.
Article 10.10 The Ci ty covenants to abide by the terms and
conditions of the drought contingency plan adopted by the City, attached
hereto as Exhibit E, as well as the terms and conditions of the conser-
vation plan adopted by the Authority, attached hereto as Exhibit D.
ARTICLE XI
CHANGES IN ALLOCATION FACTORS
Section 11.01 The City (together with the other Pariticipants)
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understand that the allocation factors specified in Section 2.01 hereof
are based upon representations made by the City (and the other Partici-
pants) as to the requisite Demand Allocation Factor and the Pumping
Allocation Factor needed for participation in the Southeast Plant. The
City also understands that the Authority is the equitable owner of the
Demand Allocation Factor and the Pumping Allocation Factor of the South-
east Plant (as specified in Section 2.01) of the Southeast Plant and
is a customer of the Southeas't Plant. Neither the Authority, the City,
or the other Participants are entitled to an expansion of the Authority's
share in the Southeast Plant, or an expansion of the City's share of the
Authority's Demand Allocation Factor and the Pumping Allocation Factor
in the Southeast Plant.
The Authority covenants with the City that if the City desires to
obtain an expansion of its share of the Demand Allocation Factor or
Pumping Allocation Factor (or both), that upon written request to the
Authority by the City of such an expansion, the Authority will proceed
to request that Houston expand the Authority's Pumping Allocation
Factor or Demand Allocation Factor in the Southeast Plant. The Author-
ity makes no warranties or covenants other than that it will use its
best efforts to obtain the requested expansion, and does not guarantee
an expansion in the City's share of the Demand Allocation Factor or
Pumping Allocation Factor if, as, or when needed. The City understands
that in the event it requests an increase in its share of the Demand
Allocation Factor or Pumping Allocation Factor (or both), that it will
be liable to pay for its increased capac i ty in the plant, together
wi th any and all necessary improvements in the Transmission System or
the Distribution System.
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Section 11.02 Pursuant to Section 3.03 of the Houston Contract,
in the event that, Houston undertakes an expansion of the Southeast
Plant, the Authority shall have the option of increasing its Demand
Allocation Factor, its Pumping Allocation Factor, or both, by paying to
Houston a sum or sums of money representing an additional capital con-
tribution to the cost of such future expansion of the Southeast Plant
(as defined in the Houston Contract) to increase its Production Capacity
and its Pumping Capacity. Houston shall give one hundred fifty (150)
days advance wr i t ten not ice to the Au thori ty of any proposed future
enlargement or expansion of the Southeast Plant. Immediately upon re-
ceipt of same from Houston, the Authority shall give written notice to
the City and the other Participants of such proposed future enlargement
or expansion of the Southeast Plant. At any time during the one hundred
fifty (150) days notice period, the Authority shall be authorized to
give notice of intent to enter into such agreement. The Authority will
not give notice to enter into such agreement, unless it receives writ-
ten notice from the City, or any other Participant, of its respective
desire to increase its share of the Demand Allocation Factor or Pumping
Allocation Factor. The Authority and the City agree, in giving or
responding to any such notice, to act timely and in good faith in order
to permi t an orderly enlargement or expansion of the Southeast Plant
for the lowest cost reasonably obtainable without causing undue delay.
The Authority and the City understand that the option rights
provided to the Authority in the Houston Contract in this Section shall
be limited to an allocation of capacity in the expanded Southeast Plant
equal to or less than the then current demand allocations.
Section 11. 03 If, in order to continue to supply the Authori ty
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(and therefore the City) Water at its Demand Allocation Factor, and
directly related and necessary to the operation and maintenance of the
Southeast Plant, it becomes necessary to perform a maj or replacement
to the Southeast Plant, plans and specifications for such repairs
shall be made and rev iewed by the Houston Director and the Authori ty
Director. The Authority will pay its pro rata share of the cost of any
such work, and will pass its costs through to the City in direct propor-
tion to the Ci ty' s share of same.
Upon inspect ion and rev iew of the
work, the Authority shall pay its pro rata share of any such repair or
replacement of the Southeast Plant within ninety (90) days after accep-
tance of the completed repa ir or replacement by the Authori ty, and
shall invoice the Ci ty for its share of same.
The Authori ty shall
never be required to pay for portions or replacements, additions or
transmission facilities that solely relate to the Participants or
their customers, nor shall the City ever be required to pay for portions
or replacements, additions or transmission facilities that solely
relate to other Participants of the Authori ty, or customers of the
Southeast Plant other than the Authority.
ARTICLE XII
Easements and Vesting of Title
Section 12.01 During the term of this Contract, the Author-
ity shall have the right to use the streets, alleys and public ways
and places of the City for the purpose of constructing, operating
and maintaining any Water transmission lines, distribution lines,
and related facilities which constitute a part of the Authority's
share of the Southeast Plant, the Transmission System, and the Distri-
bution System.
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Section 12.02 In accordance with the provisions of Article
ll09j, V.A.T.C.S., at such time as the Bonds and all other indebtedness
incurred by the Authority in the acquisition, construction, improvement
or extension of the Authority's share of the Southeast Plant, the
Transmission System and the Distribution System is paid in full, an
undivided interest in the Authority's share of the Southeast Plant, the
Transmission System and the Distribution System equal to a fraction the
numerator of which is the aggregate amount of all production Capacity
and Pumping Capacity of the City and the denominator of which is the
total amount of all Production Capacity and Pumping Capacity of all
of the Participants, shall automatically and irrevocably vest in the
City without the necessity of the execution and delivery of any convey-
ance by the Authority. If requested in writing by the City, the Author-
ity will execute, acknowledge and deliver to the City an appropriate
instrument acknowledging that such vesting of title has occured,
but such instrument shall not be necessary to effect the automatic
vesting of title which shall occur as set forth above.
ARTICLE XIII
Insurance
Sect ion 13.01 The .r\U thori ty agrees to carry fire, casual ty, publ i c
liability and other insurance in amounts and against risks which are
consistent with accepted insurance practices of companies owning and
operating similar facilities in Harris County, Texas; provided, how-
ever, the Authority shall not be required to carry liability insurance
except to insure itself against risk of loss due to claims for which
it can, in the opinion of the Authority's legal counsel, be liable
under the Texas Tort Claims Act or any similar applicable law or
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judicial decision. All such insurance shall be written by responsible
insurance carriers selected by the Authority in amounts sufficient
to avoid the application of any co-insurance clauses contained in
the policies effecting such insurance (and in any event for less
than 80% of full insurable value).
If the Southeast Plant should be materially damaged or destroyed
by fire or other casualty, the Authority shall, as expeditiously as
possible, diligently prosecute, or cause to be prosecuted, the recon-
struction or replacement thereof as nearly as possible to the condition
thereof immediately prior to such damage or destruction and shall apply
the proceeds from any insurance to the payment of the cost of such re-
construction or replacement. The insurance proceeds, if any, remaining
after the application thereof to such reconstruction or replacement
shall be deposited in the Authority's interest and sinking fund (and
the capacity charges to be paid thereafter by the Participants
shall be reduced pro tanto). If the damage or destruction materially
reduces the Authority's ability to deliver Water hereunder and the
insurance proceeds are not sufficient to pay for the entire cost of
reconstruction or replacement, the Authority is authorized to draw
upon any cont ingency reserve fund and, if it is exhausted, then the
Participants shall make up any deficiency pro rata in accordance
with their reserved capacity in the Southeast Plant.
ARTICLE XIV
Arbitration
Section 14.01 .Zl.ny dispute which is specifically stated to be
subject to arbitration under the provisions of this Contract shall be
promptly submitted to an arbitrator mutually agreed to by the Authority
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and City. Such arbitrator shall promptly proceed to resolve the
disputes submitted .to him pursuant to the terms of this section, if
Authority and City can agree on a single arbitrator.
Section 14.02 Any dispute or disagreement which is expressly made
subject to arbi tration by the terms of this Contract (and if the
Authority and City cannot agree on a single arbitrator as provided in
the preceding paragraph) shall be submitted to arbitration in Houston,
Texas, by a board of three (3) arbitrators upon the written notice of
either the Authority or the City, which notice shall name one arbitra-
tor. The party receiving such written notice shall within ten (10) days
by written notice to the other, name a second arbitrator. The two
(2) arbitrators so appointed shall name a third, within ten (10)
days after appointment of the second arbitrator, failing which a third
arbitrator shall be appointed by a District Court in Harris County,
Texas, as ~rovided in the Texas Arbitration Act.
Section 14.03 The arbitrators so appointed shall promptly hear
and determine the question or questions submi tted pursuant to the
procedures established by the Texas General Arbi tration Act, shall
render their decision with all reasonable speed and dispatch, but in
no event later than thirty (30) days after the conclusion of evidence.
If within said period a decision is not rendered by the arbitrators,
or a majority thereof, new arbi trators may be named and shall act
hereunder at the election of the Authority or the City in like manner
as if none had been previously named.
Section 14.04 The decision of the arbitrator or of the majority
of the ar~itrators shall be final and binding upon the parties hereto
as to the question or questions submi tted, and a judgment upon an
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award rendered in such arbitration proceedings may be entered in any
court of competent jurisdiction.
The expense of arbitration shall
be borne one-half by the Authority, and one-half by the City, except
that each party shall bear the compensation and expenses of its
counsel and witnesses.
Any cost of such arbi tration (including cost of counsel and
witnesses) paid by the Authority shall be considered an Operation and
Maintenance Expense.
ARTICLE XV
Miscellaneous
Section 15.01
This Contract shall be effective upon the day and
year first above written and shall continue in force and effect until
, 2027 and thereafter shall continue in force until all
Bonds and refundinq Bonds, and all other obligations (including the
Houston Contract), if any, of the Authority, shall have been paid.
Section 15.02 No ch~nge or modification of this Contract shall
be made which will affect adversely the prompt payment when due of
all moneys required to be paid by each Participant under the terms
of this Contract and no such change shall be effective which would
cause a violation of any provisions of any resolution of the Authority
authorizing the issuance of the Bonds or any Bonds issued to refund
any of the Bonds.
Section 15.03 Unless otherwise provided herein, any notice,
communication, request, reply or advice (herein severally and collec-
tively, for convenience, called "notice") herein provided or per-
mitted to be given, made or accepted by any party to any other
party, must be in writing and may be given or be served by depositing
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the same in the Uni ted States mail, postpaid, or by del i vering the
same to an officer of such party, or by prepaid telegram when appro-
priate, addressed to the party to be notified; provided however,
that any notice of breach of this Contract, forfeit or Force Majeure
shall be sent by Certified Mail with return receipt requested. Notice
deposited in the mail in the manner hereinabove described shall be
conclusively deemed to be effective, unless otherwise stated herein,
from and after the expiration of ten days after it is so deposited.
, Notice given in any other manner shall be effective only if and when
received by the party to be notified.
For the purposes of not ice,
the addresses of the parties shall, until changed as hereinafter
provided, be as follows:
If to the Authority, to:
La Porte Area Water Authority, Post Office Box 1115, La Porte
Texas 77571 Attn: General Manager
If to the City as follows:
The parties hereto 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 at least fifteen
(15) days written notice to the other parties hereto.
Section 15.04
This Contract shall be governed by the applicable
laws of the State of Texas and the united States of America and any
applicable federal, state, or county permits, rules, orders, and
regulations of any state or federal governmental authori ty hav ing
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jurisdiction, but nothing contained herein shall be construed as a
waiver of any right to question or contest any such law, order, rule
or regulation in any forum having jurisdiction.
Section 15.05 The parties hereto agree that if any of the
provisions of this Contract should be or be held to be invalid or to
contravene the laws of the State of Texas, or the Uni ted States of
America, such fact shall not invalidate the whole agreement, but it
shall be construed as though not containing that particular provision,
and the rights and obligations of the parties hereto shall be construed
and remain in force accordingly.
Section 15.06 The parties hereto agree that upon the expiration
of this Contract the City shall have the right to continued service
for an additional period of forty (40) years or for such other time as
may be agreed, upon execution of an appropriate agreement between
City and the Authority.
Section 15.07 It is not intended hereby to specify (and this
Contract shall not be considered as specifying) an exclusive remedy
for any default, but all such other remedies (other than termination)
existing at law or in equity may be availed of by the City or other
Participants and shall be cumulative. Recognizing however, that the
Authority's undertaking to provide and maintain a supply of Water
hereunder is an obligation, failure in the performance of which
cannot be adequately compensated in money damages alone, the Authority
agrees, in the event of any default on its part, that the City shall
have available to it the equi table remedy of mandamus and spec if ic
performance in addition to any other legal or equitable remedies
(other than termination) which may also be available. Recognizing
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that failure in the performance of the City's obligations hereunder
could not be adequately compensated in money damages alone, the
City agrees in the event of any default on its part that the Authority
shall have available to it the equitable remedy of mandamus and
specific performance in addition to any other legal or equitable
remedies (other than termination) which may also be available to the
Authority. Notwithstanding anything to the contrary contained in
this Contract, any right or remedy or any default hereunder, (except
"the right of the Authority to receive any payments which shall never
be determined to be waived), shall be waived unless asserted by a
proper proceeding at law or in equity within two (2) years plus
one (1) day after the occurrence of such default.
section 15.08 All amounts due under this Contract, including,
but not limited to, payments due under this Contract or damages for
the breach of this Contract, shall be paid and be due, in Harris
County, Texas, which is the County in which the Authority's principal
administrative offices are located. It is specifically agreed
among the parties to this Contract that Harris County, Texas is the
place of performance of this Contract; and in the event that any
legal proceeding is brought to enforce this Contract or any pro-
vision hereof, the same shall be brought in Harris County, Texas.
Section 15.09 If by reason of Force Majeure any party hereto
shall be rendered unable wholly or in part to carry out its obliga-
tions under this Contract (other than the obligation of each Partici-
pant to make the payments required under Section 7.01 of this Contract)
then if such party shall give notice and full particulars of such
force majeure in wri ting to the other parties wi thin a reasonable
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time after occurrence of the event or cause relied on, the obligation
of the party giving such notice, so far as it is affected by such
force majeure, shall be suspended during the continuance of the
inability then claimed, but for no longer period, and any such party
shall endeavor to remove or overcome such inability with all reasonable
dispatch. The term "Force Majeure" as employed herein shall mean
acts of God, str i kes, lockouts, or other industrial d is turbances,
acts of public enemy, orders of any kind of the Government of the
United States or the State of Texas, or any civil or military authority,
insurrection, riots, epidemics, landslides, lightning, earthquakes,
fires, hurricanes, storms, floods, washouts, droughts, arrests, re-
straint of government and people, civil disturbances, explosions,
breakage or accidents to machinery, pipelines or canals, partial or
entire fa i lure of wa ter supply, and inab il i ty on the part of the
Authority to deliver Water hereunder for any reason, or on account
of any other causes not reasonably wi thin the control of the party
claiming such inability, except for the payments from the Participants
to the Authority.
Section 15.10 This Agreement and any addenda hereinafter set
forth constitute all the understandings between the parties hereto,
and there are no oral representat ions, stipulat.ions, warranties or
understandings wi th respect to the subject matter of this agreement
which are not fully expressed herein. Neither this Agreement nor its
execution has been induced by any representations, stipulations, war-
ranties or understandings of any kind other than those herein expressed.
No amendment, addition to, alteration, modification or waiver of
all or any part of this Agreement shall be of any force or effect
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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 Agreement and the terms and conditions of any purchase order or
order acknowledgment wri tten in connection wi th this Agreement con-
flict, then the terms and conditions of this Agreement shall govern.
Section 15.11 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 Agreement shall operate or be construed as a waiver
of any other or further defaul t or defaul ts, whether of alike or
different character.
Section 15.12 This Agreement 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.
Section 15.13 Th i s contract is to be construed accord i ng to
the laws of the State of Texas.
Section 15.14 The topical headings used herein have been inserted
for convenience only and shall not be construed as having any sub-
stantive significance or meanin~ whatsoever or as indicating that
all of the prov isons of th is Agreement re la t ing to any part icular
topic are to be found in any particular Article.
IN \'HTNESS WHEREOF, the parties hereto, acting under authority
of their respective governing bodies, have caused this Contract to be
executed 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.
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LA PORTE AREA WATER AUTHORITY
By:
President
ATTEST:
By:
Secretary
CITY OF LA PORTE, TEXAS
By:
Mayor
ATTEST:
By:
City Secretary
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,/ I
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/
(
SEPTEMBER 21, 1987
CITY OF HOUSTON, TEXAS
LA -PORTE AREA WATER AUTHORITY
COST SHARING WATER PROJECT CONTRACT
STATE OF TEXAS
COUNTY OF HARRIS
KNOW ALL MEN BY THESE PRESENTS:
This cost sharing water project contract (the "Contract") made and
entered into as of the date last specified by and between the CITY OF
.. HOUSTON, Texas, a municipal corporation which is situated and has its
principal office at City Hall, Houston, Harris County, Texas
(hereinafter called "Houston"), and the LA PORTE AREA WATER AUTHORITY,
a conservation district and political subdivision of the State of Texas
which is situated in and has its principal office at City Hall, La
Porte, Harris County, Texas (hereinafter called "the Authority").
WIT N E SSE T H:
WHEREAS, both Houston and the Authority desire to proceed
expeditiously with the acquisition and construction of certain raw
surface water transmission facilities, surface water treatment
facilities, treated water storage facilities and pumping facilities
otherwise known as the Southeast Water Purification Plant (the
"Project"), to serve both Houston and the Authority, and
WHEREAS, because of the plans of the Authority to supply existing
and future treated water needs and the plans of Houston to supply
eXisting and future treated water needs, it is deemed and hereby found
to be more efficient and cost-effective for both Houston and the
Authority to jointly finance the construction and operation of the
~rojectj and
WHEREAS, the joint construction and the operation of the Project
by--means of this Contract will facilitate needed water supplies to
serve both Houston and the Authority, and will help alleviate area
subsidence problems; and
NOW, THEREFORE, Houston and the Authority hereby agree to cost
sharing for the construction and operation of the Project under the
terms and conditions and for the considerations hereinafter set forth
as follows, to-wit:
EXHIBIT A
.
It
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ARTICLE I
DEFINITIONS
1.01 "Actual Construction Cost" for the Project is the total
construction cost of the Project and includes such items as the
following whether incurred prior to or after execution of this
Contract: (a) the actual cost to Houston of the engineering and
consulting services reasonably required for the preliminary engineering
and design of the Project; (b) the actual cost of engineering services,
inspection services and other consultant services reasonably required
for the construction phase of the Project; (c) the actual cost of all
contract and other payments for construction and acquisition of
equipment and materials for the Project; and, (d) the actual costs of
land, easements, rights-of-way, property and persons, administrative,
auditing and legal expenses associated with the construction of the
,. Project, including an imputed cost when such services are performed by
employees of Houston.
It is expressly understood that Actual Construction Cost shall not
include expenses associated with financing the Project which expenses
are to be borne by the party incurring them or as hereafter otherwise
provided. It is further expressly understood that the Authority will
not be charged as part of the Project Construction Cost, the cost of
any obligation or liabilities incurred as a result of negligent acts or
omissions on the part of Houston, its employees or agents in the
construction of the Project.
1.02 "Actual Production Construction Cost" is the Actual
Construction Cost of the Project less the Actual Pumping Construction
Cost.
1 .03 "Actual Pumping Construction Cost" is the total
construction cost of treated water storage and treated water pumping
facilities associated with the Project.
1.04 "Billing Period" means a three (3) month period ending
at 8:00 o'clock a.m. on the first day of October, January, April and
July or such other three month periods mutually agreeable to the
Director and the Authority.
1.05 The term "CIWA" means the Coastal Industrial Water
Authority which name has been sUbsequently changed to "CWA" (Coastal
Water Authority), and the terms are used interchangeably herein.
, .06 "Demand Allocation Factor" is the percentage of the
Production Capacity which a participant (either Houston or the
Authority, or any other participant defined by separate contract) is
entitled to use at any given time.
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The initial Demand Allocation Factor for each participant will be
a percentage equal in proportion to the part of that amount of Actual
Production Construction Cost paid by that participant divided by the
total Actual Production Construction Cost. The actual percentage for
the Authority is specified in Section 2.01. The sum of the Demand
Allocation Factors of the total number of all entities who have
executed a cost sharing water Project contract for the Southeast Water
Purifications Plant, together with the demand allocation factor of the
City of Houston, at any given time shall always total one hundred
percent (100%).
1.07 "Excess Production Fee" is the rate to be charged to the
Authority for use of production capacity above the Authority's share of
committed capacity from the Project and shall be payable as set forth
in Section 4.05 herein.
1.08
~ Authority
excess of
and shall
"Excess Pumpage Fee" is the rate to be charged to the
for use of pumping facilities associated with the Project in
the Authority's share of committed capacity for the Project
be payable as set forth in Section 4.05 herein.
1.09 "Houston Director" means the Director of the City of
Houston's Department of Public Works and Engineering or any other
person designated by such Director. Any notice by the Director of an
alternate designation or of a revocation of an alternate designation
shall be in writing and delivered to the Authority pursuant to the
notice provisions herein.
'.10 The term "initial" when used in this Contract refers to
that phase of the Project in which the Project has a maximum production
capacity of 80 MGD and a maximum pumping capacity of 225 MGD expressed
as a peak hour pumping rate.
'.1' "Major Replacement" means any single repair or
replacement for the Project requiring the expenditure of $100,000.00 or
more.
1.12 "MGD" is an abbreviation for "million gallons of water
per day." As used in this Contract "MGD" refers to a 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).
1. 13
maintenance.
"0 & M" is an abbreviation for operations and
1.14 "Participant" used in lower case means Houston, the
Authority, and all other entities which at any given time have executed
a cost sharing water project contract relating to the Southeast Water
Purification Plant. The term "party" means either or both Houston and
the Authority.
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1.15 "Authority Director" means the City Manager of the City
of La Porte, or any other person designated by the Authority. Any
notice by the Authority of an alternate designation or revocation of
designation shall be in writing and delivered to Houston pursuant to
the notice provisions herein.
1.16 "Point of Delivery" shall mean the point at which
treated surface water produced by the Project is supplied to the
Authority as shown in the attached Exhibit "A". The Point of Delivery
shall include primary measuring equipment, valves, backflow prevention
devices, devices to physically constrict the rate of flow of water to
the Authority to an amount equal to the product of the Pumping
Allocation Factor for the Authority times the Pumping Capacity for the
Project, piping, a proper vault and such other items as are necessary
in the judgment of the Houston and the Authority Director. The Point
of Delivery shall also include a bypass and a bypass meter unless the
Authority specifically requests in writing that these items be omitted.
1.17 "Production Capacity" means the maximum rate of
production of water from the Project. The initial production capacity
of the Project equals 80 MGD.
1.18"production 0 & M Expense" for a Billing Period means a sum of
money computed according to the fOllowing formula:
Production 0 & M Expense = (A x C) + (A x D)
B E
In the foregoing formula:
"A" is the number of gallons of treated potable water produced by
the Project and delivered to the Authority at its Point of
Delivery during the given Billing Period.
"B" is the total number of gallons of treated potable water
produced by the Project during the given Billing Period.
"C" is the total Houston expenditure during the given billing
period for the operation and maintenance of the Project;
(including reasonable imputed costs for services of Houston
employees as well as costs of fire insurance), and excluding those
operations and maintenance costs used to compute the Pumping 0 & M
Expense and also excluding expenditures for the sale of bonds,
notes, and other evidence of indebtedness issued for capital
purposes.
"D" is the total Houston expenditures for the operation,
maintenance and debt service for the raw water storage and
transmission facilities during the Billing Period.
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"E" is the total amount of water sold to Houston water customers,
that is diverted from the Trinity River into the CWA Main Canal
during the given Billing Period. As defined herein "E" includes
such raw water received at Houston water treatment plants
receiving Trinity River water through the Main Canal as well as
the billable quantity (including take-or-pay amounts as
applicable) taken by Houston raw wate~ ~ustomers, but excludes
line loss by evaporation, leakage, etc.
1.19 "Project" is described by Exhibit "B," which is attached
hereto and incorporated herein by reference,
1.20 "Pumping 0 & M Expense" for a given Billing Period means
a sum of money computed according to the following formula:
Pumping 0 & M Expense = A x C
B
In the foregoing formula:
"A" is the total gallons of water delivered from the Project to
the Authority at the Point of Delivery during the given Billing
Period.
"B" is the total gallons of water pumped by the Project Pumping
facilities during the given Billing Period.
"e" is the total Houston expenditure for the pumping and treated
water storage facilities portion of the Project (including
reasonable imputed costs for services of City of Houston employees
as well as costs of fire insurance) less expenditures for the sale
of bonds, notes and other evidences of indebtedness issued for
capital purposes for the Project.
1.21 "Pumping Allocation Factor" is the percentage of the
Project's pumping and related treated water storage capacity which a
party (either Houston or the Authority) is entitled to use at any given
time.
The initial Pumping Allocation Factor for each party will be a
percentage equal in proportion to the part of the Actual Construction
Cost of the pumping and storage facilities actually paid by that party
divided by the total Actual Construction Cost for such pumping and
storage facilities. (The actual percentage for the Authority is
specified in Subsection 2.01 hereof.) The sum of the Pumping
Allocation Factors shall always total one hundred percent (1CO%),
including the Pumping Allocation factor of the City of Houston.
1.22 "Pumping Capacity" means the maximum rate of delivery of
water from the Project. The initial Pumping Capacity equals 225 MGD
expressed as a peak hour pumping rate.
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As provided in Section 2.04 the total ultimate pumping capacity
related to the Authority under the terms of this contract shall be the
Authority~s proportionate share of the initial 225 MGD.
1.23 "Raw Water Storage and Transmission Facilities" means
Lake Livingston Reservoir and the Trinity River Channel downstream from
Lake Livingston to the CIWA Pumping Station located on the Trinity
River north of the Redmond Community and south of the City of Liberty,
Texas; the existing line, including said CIWA Pumping Station, which is
shown on Exhibit "C" as Line A, which extends from said CIWA Pumping
Station to the connection with Line B as shown on that same exhibit;
the existing Line C as shown on Exhibit "C" which intersects Line A
near its intersection with State Highway 225 and extends westward to
its present west extremity.
1.24 "Surface Water Treatment Facilities" are those
facilities of the Project that alter the physical, chemical, or
biological characteristics of the surface water into the Project. The
surface water treatment facilities of the Project are those facilities
described above which are located upstream of the treated water storage
facilities and downstream of the raw water transmission facilities.
1.25 "Treated Water Pumping Facilities" are those facilities
located on the site of the Project which are downstream of the treated
water storage facilities located on the site of the Project and
upstream of any and all transmission or distribution pipelines which
connect the Project to Houston's or any other participant's
distribution and transmission pipeline system.
Under no circumstances shall the term Treated Water Pumping
Facilities include any pipeline facilities belonging to Houston or any
other participant's whether transmission or distribution, located
off-site of the Project.
1.26 "Treated Water Storage Facilities" are those water
storage facilities located downstream of the surface water treatment
facilities of the Project and upstream of the treated water pumping
facilities of the facility.
1.27 "Trinity River Authority," hereinafter referred to as
"TRA" means that agency which controls that portion of the raw water
storage and transmission facility from and including Lake Livingston
Reservoir and the Trinity River Channel to the CIWA Pumping Station
located thereon and referenced to in Section 1.23.
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ARTICLE II
CONSTRUCTION OF THE PROJECT
2.01 The Project - In General
It is understood by the parties that the Authority is buying an
equity ownership in the Project in a proportion as evidenced by a
percentage of the capital investment paid by the Authority as detailed
elsewhere in this Contract.
Houston and the Authority acknowledge and agree that Houston shall
undertake to construct the Project under the terms of this Article.
Such Project shall consist of certain raw surface water transmission
facilities and surface water treatment facilities capable of producing
approximately 80 MGD on the maximum day of treated potable water and of
certain treated water storage facilities and treated water pumping
,- facilities capable of storing approximately 25 million gallons of
potable water and pumping approximately 156,000 gallons per minute (on
the peak hours of demand) of treated potable water. Upon completion of
the Project as described in Section 2.05 and payment in full of all
monies payable under Section 2.04, the Authority shall be entitled to
an Initial Demand Allocation Factor of 5.25 percent and an Initial
Pumping Allocation Factor of 2.33 percent.
As part of its obligations under the terms of this Contract,
Houston shall pay its pro rata share of the cost of construction of the
Project. Houston admits that it will seek additional parties as
participants in the construction of the Project under separate
contracts and under terms and conditions similar to those stated
herein.
2.02
Design and Construction of the Project
(i)
Houston has heretofore completed the design as well as
the plans and specifications for the Project. In June
of 1986, Ho~ston awarded the principal construction
contract for the Project. The above-mentioned documents
are a pUblic record of Houston and have been examined
and approved by the Authority.
(il) Houston agrees to construct the Project and the
additional facilities described in Sections 1.23, 1.24
and 1.25 in accordance with the Preliminary Engineering
Report and all Supplements thereto prepared by Turner
Collie and Braden, Inc. and the Preliminary Engineering
Report and all supplements thereto prepared by Bovay
Engineers, Inc.
(iii)
(iv)
(v)
(vi)
2.03
(i)
( ii)
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Houston may award additional construction contracts as
necessary to complete the Project, subject to the
approval of the Authority Director. The Authority shall
have the right to review and approve construction
contracts, and estimates of the Actual Construction Cost
of such additional construction contracts subsequent to
the effective date of this agreement.
Houston may enter into appropriate agreements with the
Coastal Water Authority to provide capital financing or
construction for the surface water transmission
facilities and for the continued operations and
maintenance of the ra~ surface water transmission
facilities portion of the Project. The CWA contract for
the construction of Line B as depicted on Exhibit "C"
awarded in June 1987, is a public record of CWA and has
been reviewed and approved by the Authority.
Houston shall be responsible for obtaining all permits
and approvals of local, state or federal authorities for
construction and operation of the Project.
Houston warrants that it has good and marketable title
to the real property constituting the premises on which
the Project will be constructed and that same is free
and clear of any liens, encumbrances, taxes or other
obligations or amounts due.
Review of the Construction of the Project and Facilities
by the Authority.
During all working hours of the construction period, the
Authority Director and anyone authorized by him shall
have access to the Project premises and may inspect or
review the Project and all engineering specifications
and documents related to the Project.
Any changes in the design or specifications of the
Project amounting to an increase or decrease of either
Actual Pumping Construction Cost or Actual Production
Construction Cost amounting to Five Hundred Thousand and
No/l00 ($500,000.00) Dollars shall require the approval
of the Authority Director. In no event shall additional
cost be passed on to the Authority, unless related to
water service to the Authority, and all changes
regardless of size or amount will be submitted to the
Authority Director for review.
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2.04 Payment of Project Actual Construction Costs
The Authority agrees to pay to Houston the Authority's pro rata
share of the Actual Construction Costs of the Project. The Authority's
Pro Rata share of the Actual Production Construction Cost shall be 5.25
percent (the initial Demand Allocation Factor) and the Authority's
share of the Actual Pumping Construction Cost shall be 2.33 (the
initial Pumping Allocation Factor). The Authority's pro rata share of
Actual Construction Costs is due and payable as follows:
( i )
(ii)
(iii)
(iv)
Authority shall pay to Houston ONE MILLION THREE HUNDRED
FOURTY SIX THOUSAND EIGHT HUNDRED DOLLARS ($1,346,800)
on or before thirty (30) days following the date of the
notice from the Authority to Houston as set forth in
Section 5.17.
Houston shall invoice the Authority for payment of its
share of capital costs at the expiration of each
calendar quarter (December, March, June, September).
Each quarterly payment hereunder shall be the amount
necessary for the Authority to "catch-up" its pro rata
contribution under this Contract. ("Catch-up" as used
herein means that the percentage of the pro rata share
of estimated Construction Costs paid by the participant
equals the percentage of the estimated Construction
costs paid for construction of the Project.)
On or before the expiration of ninety (90) days from the
date of the formal acceptance of the completed
construction of the Project by the Houston City Council
and the Authority, the Houston Director shall cause an
accounting to be made of the Actual Construction Cost of
the Project and deliver same to the Authority.
The accounting prepared by Houston shall include an
audit of the Actual Construction Cost. The audit shall
be prepared by an independent firm of certified pUblic
accountants, and the cost therefore shall be included in
the Actual Construction Cost.
The accounting shall state the difference between the
Houston Director's estimated Actual Construction Cost
and the Actual Construction Cost of the Project; the
estimated Actual Production Construction Cost and the
Actual Production Construction Cost of the Project; and
the estimated Actual Pumping Construction Costs and the
Actual Pumping Construction Cost of the Project. Said
accounting shall also set forth any adjustments
necessary to be made in the Authority's pro rata share
payments between pumping and production costs.
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In the event that the Houston Director's estimates have
been larger than Actual Construction Costs resulting in
an overpayment by the Authority of its pro rata share,
Houston shall refund such difference to the Authority on
or before the expiration of ninety (90) days of date of
the receipt of the accounting by the Authority.
In the event that the Houston Director's estimates have
been less than Actual Construction Costs which has
resulted in an underpayment by the Authority of its pro
rata share, the Authority shall pay such difference to
Houston on or before the expiration of ninety (90) days
of the date of the receipt of the accounting by the
Authority.
2.05
Completion of the Project
When the Project is completed and has been accepted by the Houston
City Council, Houston shall notify the Authority Director and designate
a day upon which initial operation of the Project is to begin.
Houston shall provide the Authority with full access to the
Project and to the books and records of the Project including all
engineering reports, design specifications, change orders,
correspondence, plant accounts, construction plan accounts or any other
written document or instrument associated with or pertaining to the
construction of the project.
ARTICLE III
OPERATION AND MAINTENANCE OF THE PROJECT
3.01
(i)
In General
Houston and the Authority as co-owners of the Project,
understand that, except in areas otherwise specified
herein, Houston will serve as managing owner of the
construction phase of the Project and of the maintenance
and operation thereafter and shall have charge of its
business and general conduct.
( i i)
The Authority shall have an interest in the conduct,
affairs and decisions of the Project in proportion to
its capital contribution. The Authority shall have the
authority to enter the Project premises~
(iii)
(iv)
(v)
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The Authority is willing to make capital contributions
as specified herein on the basis that Houston as
managing owner agrees to use its best efforts to assure
proper construction, operation and maintenance of the
Project and its structures, equipment and facilities and
proper conduct of all employees, agents or contractors,
to pay debts when due and conform to any federal, state
or local regulations.
The parties agree that the Authority shall be privy to
any negotiations with other participants in the Project
and all contracts with any such participant will be
submitted to the Authority for review prior to
execution. The Authority will receive notice and right
to attend all meetings between all participants during
the term of the contract.
Relationship of Parties
The relationship of the parties is of a fiduciary
character. Houston is trustee with respect to the
Authority with respect to the operation of the Project
and care of all joint property specified herein. Each
party shall act in the highest good faith toward the
other in conducting the operation of the Project as well
as their respective duties under this Contract. Each
party is under obligation, on demand of the other, to
render true and full information and performance of all
matters affecting the Project and its operations under
the terms of this Contract.
(vi) Duties of Managing Owner
(a) Houston shall keep and maintain an accurate
accounting system based on accepted accounting standards
that provides documentation of the costs of constructing
and operating the Project and separate tre costs
incurred as the Authority's allocated share. Such
records shall be maintained for a minimum period of five
(5) years and as otherwise required by law. All such
documents and records shall be available to the
Authority for inspection, copying or audit at reasonable
times, places and upon reasonable notice.
(b) Houston shall provide an adequate program to insure
that the Project is maintained in a state of repair in a
cost effective manner.
(c) Houston shall employ and supervise employees,
agents, consultants or contractors connected with the
Project in a cost effective manner by employing only
those as reasonably necessary for proper operation and
maintenance of the Project.
3.02
( i)
( ii)
3.03
( i)
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Demand Allocations
Each party may take water from the Project at that
party's Point of Delivery, but neither party may take
water from the Project to exceed the Production Capacity
of the Project multiplied by that party's then-current
Demand Allocation Factor, nor may either party take
water from the Project at a rate which exceeds the
Pumping Capacity of the Projec~ multiplied by that
party's then-current Pumping Allocation Factor. Houston
shall monitor and control the amounts of water and the
rates at which water is taken by the parties. The
monitor and control measures may include throttling
devices for controllers, special operating procedures or
other similar measures.
In the event that the Project is not being operated at
its Production Capacity or its Pumping Capacity, either
party may, with agreement of the other party's Director
use a portion of all the unused Production Capacity or
Pumping Capacity of such other party. During a billing
period when such additional Production Capacity or
Pumping Capacity is used, the party using the same shall
be subject to paying the Excess Production Fee or the
Excess Pumpage Fee, or both, as the case may be. Such
fees shall be established as set forth in Section 4.05
of this Contract.
Changes in Allocation Factors
In the event that Houston undertakes an expansion of the
Project, the Authority shall have the option of
increasing its Demand Allocation Factor, its Pumping
Allocation Factor or both, by paying to Houston a sum or
sums of money representing an additional capital
contribution to the cost of a future expansion of the
Southeast Water Purification Plant Project to increase
its Production Capacity and its Pumping Capacity.
Houston shall give one hundred fifty (150) days' advance
written notice to the Authority of any proposed future
enlargement or expansion of the Project. At any time
during the one hundred fifty (150) days' notice period,
the Authority shall be authorized to give notice of
intent to enter into such agreement. Houston and the
Authority agree, in giving or responding to any such
notice, to act timely and in good faith in order to
permit an orderly enlargement or expansion of the
Project for the lowest cost reasonably obtainable
without causing undue delay.
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Provided, however, the Authority understands that the
option rights specified in this Section shall be limited
to an allocation of capacity in the expanded project
equal to or less than its then-current Demand
Allocation.
(ii)
If, in order to continue supply to the Authority of
water at its Demand Allocation Factor, and directly
related and necessary to the operation and maintenance
of the Project, it becomes necessary to perform a Major
Replacement to the Project, plans and specifications for
such repair shall be made and reviewed by both
Directors. The Authority will pay its pro rata share of
the cost of any such work. Upon inspection and review
of the work, the Authority shall pay its pro rata share
of any such repair or replacement within ninety (90)
days after acceptance of the completed repair or
replacement by the Authority. The Authority shall never
be required to pay for portions of replacements,
additions or transmission facilities that solely relate
to other participants or customers.
3.04
Operation in the Event of a Loss in Project Production
Capacity or in Project Pumping Capacity
In the event that the capacity of the Project is materially
reduced by reason of equipment failure or force majeure, the Authority
may request the Houston Director to provide alternative water supply
service. Houston shall use its best efforts to provide such
alternative water supply service. Reduction in the supply of water to
the Authority will occur only in the case that other Project
participants receive such alternative water at a rate reduced pro-rata
based on their then-current Demand Allocation Factors and the Project's
then-current Production Capacity. The cost of such alternative water
service shall be the total usage by the Authority (in thousands of
gallons) times the average operation and maintenance expenses of the
Project (computed on the basis of thousand gallon units) for the
previous Billing Period. Provided, however, in the event the Authority
is required to take water from the alternate source for a period of
time longer than one hundred eighty (180) days, operation and
maintenance expenses shall be based on the actual operation and
maintenance expenses of the facility providing the treated water, in
accordance with specific agreement between Houston and the Authority.
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3.05 Measurement of Water
There shall be furnished and installed by Authority, as a part of
the Project, measuring equipment (and, if necessary, monitoring and
controlling devices) designed to measure accurately all of the water to
be produced by the Project and delivered to each party at its Points of
Delivery. Such equipment and devices shall constitute part of the
Project, and both parties shall have access thereto at all reasonable
times for inspection and examination. The reading, calibration and
adjustment of such measuring equipment shall be performed by Houston
and entered upon proper books and records to be maintained by Houston.
Upon written request, the Authority may have access to such record
books during reasonable business hours. Such books shall be kept by
Houston for at least five (5) years.
3.06
Calibration
No less than once in each year of operation, Houston shall
calibrate the measuring equipment in the presence of a representative
of the Authority. Additional calibrations shall be made by Houston if
requested in writing by the Authority Director. Provided, however, if
the Authority requests more than three (3) inspections of the measuring
equipment in anyone (1) calendar year, the Authority shall bear the
total cost of any additional inspections only in the event that the
measuring equipment is found to be operating correctly. The parties
may jointly observe any adjustments which are made to the measuring
equipment, if any adjustments are found to be necessary.
3.07 Check Meters
The Authority may, at its option and expense, install and operate
check meters, but all official measurements of water shall be made by
Houston's measuring equipment, except in cases of specific written
consent to the contrary by the Houston Director.
ARTICLE IV
OPERATION AND MAINTENANCE CHARGES
4.01 Introduction
It is expressly understood by the parties to this agreement that
the Authority shall directly reimburse Houston on a periodic basis for
the expenses incurred in producing and pumping the water actually
delivered to the Authority.
4.02
( i)
(ii)
(iii)
(iv)
4.03
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Operation and Maintenance Charges
The first Project operation period extends from the
initial day of the delivery of water to the Authority
through three (3) months into the first day of a Billing
Period as defined in Section 1.04. During this first
Project operation period, the Authority will pay a rate
of $0.41 per thousand gallons of actual water usage,
plus Excess Production and Pumpage Fees, if ~pplicable,
as its total 0 & M Expense. At the completion of this
period, the Houston Director will cause an accounting to
be made on the total 0 & M Expenses relating to this
initial period. This accounting shall be delivered to
the Authority Director.
In the event the total 0 & M Expense requires a fee
greater or lesser than $0.41 per thousand gallons, the
Authority shall pay any excess or Houston refund any
overage as the case may be. The Authority shall have
thirty (30) days after receipt by the Authority of
Houston's invoice for payment to review and approve the
accounting of Houston. If not disputed, excess payment
or refund as applicable shall be made within sixty (60)
days after receipt by the Authority of Houston's invoice
for payment.
For the remainder of the Contract term at three (3)
calendar month intervals, or at such other interval as
may be agreed to by the parties, the Houston Director
shall compute the total Production and Pumping 0 & M
Expense (and if applicable, any Excess Production or
Excess Pumping Fee), for the preceding Billing Period.
A rate for the Authority's appropriate pro rata share of
total 0 & M Expense will be billed on the tenth (10th)
day of the month following each three (3) month
interval. Such rate shall be based on an accounting
using required data and the Authority shall be bil-led
its pro rata share of actual gallons of water received.
Such accounting data will be furnished to the Authority
along with the invoice for payment. Any errors of
accounting adjustments will be corrected and/or
reflected in the invoice for the next Billing Period.
Failure to Pay When Due
Should the Authority fail to tender payment within thirty (30)
days of invoice of any 0 & M Expense (or any part thereof) or should
Houston fail to refund any overpayment to the ./I'lthority. within thirty
(30) days of the date due, interest thereon shall accrue at the rate of
ten percent (10%) per annum from the date due until paid.
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4.04 Itemization
At the close of the First Billing Period and every Billing Period
thereafter the Houston Director shall prepare for review by the
Authority Director an itemization of all accounts used to compute
Production 0 & M Expense and Pumping 0 & M Expense. The Authority
Director shall have thirty (30) days from receipt of such itemization
to conduct such review.
4.05
Excess Production Fee and Excess Pumpage Fee
In the event that the Project is not being operated at its
Production Capacity or its Pumping Capacity, Houston or the Authority
may, with agreement of the other party, use a portion of the unused
Production Capacity of Pumping Capacity of such other party. During a
Billing Period when such additional Production Capacity or Pumping
. Capacity is used, the party using the same shall be subject to paying
an excess production fee or the excess pumpage fee, or both, as the
case may be. Such fees shall be established by mutual agreement of the
parties. Any agreement between the Authority and another Project
participant for use of additional Production Capacity or Pumping
Capacity shall be subject to prior review of the Houston Director.
ARTICLE V
MISCELLANEOUS
5.01 Title to All Water Produced by the Project
Title to all water produced by the Project shall remain in Houston
and the Authority (and other participants, if any), jointly in
proportion to their Demand Allocation Factors, until the same shall
pass through the Point of Delivery. Thereafter, the Authority shall be
in exclusive control and possession thereof and solely responsible
therefore.
5.02
Unit of Measurement
The unit of measurement for water prOduced and delivered by the
Project shall be 1,000 gallons, U.S. Standard Liquid Measure.
5.03
Regulatory Action
The parties recognize that the obligations of Houston to render
operation and maintenance services as provided in this Contract are
subject to all present and future permits, rules or regulations issued
or adopted from time to time by any regulatory authority having
jurisdiction, and the parties agree to cooperate in making such
applications and in taking such actions as may be desirable to obtain
compliance therewith.
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5.04
Water Quality
The potable water to be delivered hereunder shall meet the minimum
water quality standards and all laws of the Texas Department of Health
and any other federal or state agency having jurisdiction.
5.05
Insurance
Houston shall carry fire and extended coverage .insurance on the
Project in an amount at least equal to the replacement cost of such
portion of the Project which is located above ground, provided Houston
may elect to carry a one million dollar deductible for such insurance
policy. Premiums for the insurance policy shall be included in the
Production and Pumping 0 & M Expenses and paid pro rata by the
Authority as provided elsewhere herein. (In the event of casualty, or
loss, Houston will bill the Authority for payment of the deductible or
uninsured loss as a "Major Replacement" as provided elsewhere herein.)
If the Project shall be damaged or destroyed by fire or other
casualty, Houston shall apply the proceeds from any fire and extended
coverage insurance either (i) to repair such damage or destruction so
as to restore the Project as nearly as possible to the condition
thereof immediately prior to such damage or destruction, or (ii) to
construct, install, or otherwise add to the project improvements
substantially equal in value to the portion of the Project which was
damaged or destroyed, and ,of usefulness comparable to that destroyed or
damaged such that the Production Capacity and the Pumping Capacity
specified elsewhere herein are maintained.
5.06
Houston to Keep Books; Annual Audits
Houston shall keep books, records, and all other documents
relating to the costs of operating the Project for at least five (5)
years, and said books, records, and other documents shall be available
for inspection by the Authority at reasonable times, places and upon
reasonable notice.
Houston shall keep a list of all project participants, together
with their current Demand and Pumping Allocation Factors, and shall
make said list available to the Authority upon request.
Houston will furnish a copy of its Comprehensive Annual Financial
Report, on an annual basis, to the Authority for its review, as well as
any other information, records, and books relating to the Project. The
Authority may, at the Authority's expense or in cooperation with other
participants, cause a detailed audit of the Project as a cost center.
5.01
Assignments
This Contract shall bind and benefit the respective parties and
their legal successors, but shall not otherwise be assignable, in whole
or in part, by either party without first obtaining written consent of
the other.
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5.08
Governing Law
This Contract shall in all respects be interpreted, construed and
governed by, and in accordance with the laws of the State of Texas,
including the Charter of the City of Houston and the enabling
legislation of the Authority, and the Charter of the City of La Porte.
5.09
Force Majeure
If either Houston or the Authority is rendered unable, wholly or
in part, by force majeure to carry out any of its obligations under
this Contract, then the obligations of Houston or the Authority to the
~xtent affected by such force majeure and to the extent that due
diligence is being used to resume performance at the earliest
practicable time, shall be suspended during the continuance of any
inability so caused to the extent provided, but for no longer period.
Such cause, as far as possible, shall be remedied with all reasonable
"diligence. The term "force majeure," as used herein, shall include,
without limitation of the generality thereof, acts of God, strikes,
lockouts, or other industrial disturbances, acts of the public enemy,
orders of any kind of the Government of the United States or of the
State of Texas or any civil or military authority, insurrections,
riots, epidemics, landslides, lightning, earthquakes, fires,
hurricanes, storms, floods, washouts, droughts, arrests, restraints of
government and people, civil disturbances, explosions, breakage or
accidents to machinery, shortage or contaminations of surface water,
and any other inabilities of Houston or the Authority, whether similar
to those enumerated or otherwise, which are not within the control of
Houston or the Authority and which Houston or the Authority could not
have avoided by the exercise of due diligence and care. It is
understood and agreed that the settlement of strikes and lockouts shall
be entirely within the discretion of Houston or the Authority and that
the above requirement that any force majeure shall be remedied with all
reasonable dispatch, shall not require the settlement of strikes and
lockouts by acceding to the demands of the opposing party or parties
when such settlement is unfavorable to it, in the judgment of Houston
or the Authority.
5.10
No Additional Waiver Implied
The failure of either party hereto to insist on any or more
instances upon performance of any of the terms, covenants or conditions
of this Contract, shall not be construed as a waiver or relinquishment
of the future performance of any such term, covenant or condition by
the other party hereto, but the obligation of such other party with
respect to such future performance shall continue in full force and
effect.
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5 . 1 1
Merger and Amendment
This instrument contains all the agreements made between the
parties and is the full and final expression of such agreement; and may
only be amended in writing signed by both Parties.
5. 12
Notices
Until the Authority is otherwise notified in writing by the
Houston Director, the address of the City is and shall remain as
follows:
Director, Department of Public Works
and Engineering
City of Houston
P.O. Box 1562
Houston, Texas 77251
Until Houston is otherwise notified in writing by the Authority
Director, the address of the Authority is and shall remain as follows:
General Manager
La Porte Area Water Authority
P .0. Box 1115
La Porte, Texas 77571
All written notices, statements and payments required or permitted
to be given under this Contract from one party to the other 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 to the respective other party at the address set forth above
or at such other address that the parties respectively shall designate
by written notice.
5. 13
Parties in Interest
This Contract shall be for the sole and exclusive benefit of the
parties hereto and shall not be construed to confer any rights upon any
third party. Houston and the Authority shall never be subject to any
liability in damage to any customer of the other for any failure to
perform under this Contract.
5. 14
Approvals
Unless otherwise provided for herein, any consent or approval of
the parties shall be made by the governing body of each party.
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5. 15
Dispute Resolution and Remedies
(a) The parties agree that if disputes arise, regarding the terms
or performance of this agreement or any review or approval called for
hereunder, the respective parties or their Directors agree to meet and
use best efforts to resolve same.
(b) It is not intended hereby to specify an exclusive remedy for
any dispute or default, but all remedies existing at law or in equity,
including specific performance, my be availed of by either party and
shall be cumulative. Provided, however, as a necessary condition for
declaration of default under this Contract, the non-defaulting party
shall give the defaulting party at least thirty (30) days notice of
default with the opportunity to cure during the notice period.
5.16
Term
This Contract shall be in force and effect as set forth in Section
5.17, unless sooner terminated or rescinded. The Contract shall remain
in effect until any bonds issued by Houston to fund this Project as
well as bonds issued to refund some are paid in full, or for forty (40)
years; whichever is longer. The Parties hereto agree that upon the
confirmation of this Contract the Authority shall have the right to
continued service of successive forty (40) year intervals, or for such
other times as may be agreed upon. Upon the Authority's and Houston's
complet ion of payments of capi tal cOS.ts as speci fied herein, they shall
have ownership of their pro rata portion of the Project.
5. 17
Effective Date
This contract shall be effective for the term set out herein from
and after the date of execution hereof by the parties. Houston
recognizes that the pay~ent of the Authority's share of Actual
Construction Cost is dependent on the approval, sale and delivery of
bonds, and that certain procedural requirements must be satisfied and
additional contracts signed before the Authority can make the payments
to be made by it hereunder. The Authority agrees to use its best
efforts to satisfy all necessary procedural requirements, and further
agrees that if the Authority does not give written notice of the
continued effectiveness of this Contract on or before ninety (90) days
from the effective date, this Contract shall be null and void, unless
the Houston Director agrees to an extension of time for the giving of
such notice.
5. 18
Sale of Water
The parties hereto are free to sell or dispose of water obtained
pursuant tc lhis Contract as they may choose.
5. 19
Additional Sales of Project Capacity
Houston and the Authority agree that no more than one hundred
percent (100%) of the pumping and production capacity of the Project
will be sold, including the pumping and production capacity of Houston.
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5.20
Authorship
It is agreed that this Contract shall not be construed more
strictly against either party because that party authored particular
provisions of this Contract.
5.21 Specification of Procedure for Modification
It is agreed that this agreement is the entire agreement of the
parties and may be amended or modified only by a written instrument
approved by the governing bodies of the respective parties.
5.22
No Partnership Created Hereby
The parties agree that no partnership relationShip or joint
venture is created by this Contract and that neither party is made an
,. agent or representative of the other for any purpose.
5.23
Severability
The invalidity or illegality of any term, provision or condition
of this agreement shall not in any manner affect, invalidate or annul
any other term, provision or condition hereof.
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IN WITNESS WHEREOF,
in multiple copies, each
effective as of the date
the City of Houston.
the parties hereto have executed this Contract
of which shall be deemed to be an original,
of countersignature by the City Controller of
CITY OF HOUSTON
LA
BY:
Kathryn J. Whitmire
Mayor
" ATTEST:
Anna Russell
City Secretary
A TTESJj= f .:'
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Claude Graves ~ '.
, "
Secretary ".
"
"
\
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(Seal)
APPROVED AS TO FORM:
Approved by Res. No.
City of La Porte
E. W. Beauchamp
Assistant City Attorney
APPROVEC:
Jon C. Vanden Bosch, Director
Department of Public ~orks
and Engineering
BY:
Norman Malone
Mayor
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COUt\TERSIGNED:
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Cheri Black
City Secretary
Lance Lalor
City Controller (Date:
(Seal)
)
APPROVED AS TO FORM:
Knox Askins
City Attorney
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EXHIBIT A
The "Point of Delivery" shall be the intersection of the east
property line of the site of Houston's Southeast Water Purification
Plant and the northern boundary of the CWA right-of-way for Line B as
described on Exhibit c.
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EXHIBIT B
In general, the Project shall include among other properties and
facilities: a forebay with 27 million gallon capacity; a low service
pumping station with a total pumping capacity of 120 MGD; a water
treatment module of 80 MGD and related treatment chemical storage and
feed system facilities; filter wastewater tankage; ground storage
'tankage in an amount of 25 million gallons; a high service pump station
with a total pumping capacity of 225 MGD spent filter wastewater
clarifiers, sludge thickeners and sludge draw off facilities; sludge
processing facilities including three centrifuges, chemical feed
facilities and associated equipment; process overflow basins and sludge
storage space; an electrical substation and distribution systems;
instrumentation and control devices and systems; cathodic protection;
process yard piping; and site enhancement and landscaping. In
addition, the Project shall include such fittings, valves
instrumentation and controls cathodic protection and other facilities
located on the Project site.
The term Project shall also include the raw water transmission
line shown on Exhibit "C" as Line B which is a transmission line from
the existing CWA pipeline located east of the intersection of Genoa-Red
Bluff Road and Red Bluff Road to the surface water treatment
facilities.
~
SOUTHE~~T WATER PURIFICATION P~ANT
~r.llNl".ry Co.t Alloe.tlcn
COf". t E llt~l.nt
Total Co.t Produetlon
. ____ MULT. J_MU~1_..2 Co.t...
Purnp 1 ng
. .__ MU~L .1_.l1UI.:T_~_Co'~ .,___
Tot"l
Raw Wat.r Supply
9& in olp.Un.
Oe!llQn
Ac:qul.U Ion
Cor.. t ruc:t 1 c-n
PUMPS & Connection.
0..19't
C,=".Dtruet Ion
.2,0&0,000.00 1.00 0.3~ .&~9,200.00 0.00 0.00 .0.00
.800,000.00 1.00 0.32 .2S&,000.00 0.00 0.00 .0.00
$12,138,232..48......1.00 _..0.32 ..$3,804,234.39.,. .. 0. 00,._~JI!Z!..,___..__.... ...~. 00
'9~0,000.00
'10.12:5,000.00
1.00
. .1.00
0.3:5
0.3:5
.334,801.75
$3,:5&8,281.94
0.00
0.00
0.00
0.00
.0.00
'0.00
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"2&,073,232~48
.8,702,:518.0'3
"0.00
S8,702.:518.0'3
Trl!ut'.~nt Plant
Land Acqui.ition
51 t. Cl.ar"JD:
Er.!! i r."er 1 r.q
~r.IIMln.ry PhaslI S&03,904.93
Sit 1 nA 5t udy . 14:5,6:59. 80 ~;_
Fln.l DII.iqn 160 Mgd $:5,872,376.40
Final DII.lnn 80 ,ngd' U,119;163~43
Cor.st ruc:t Ion Pha.. Sve. '1, 762, 0~Gl. 00
87 CIP Rlllatlld'PrOJ':", t1~0, 0013.130
Co'..tructlon'-:;~~~;:.~,.~'. '. ',' .,.j
(J Id A,nou"t "':<';~~!;'~;'::(:'" .72, 976,2&1 ~ 00._. 0~.73
Contlnp.r.ey -c.t',:;;:,~;~:";. $3,649,613.0:5...0.73
87 CIP R.htlld'Pl"'OJ".> '.13,989,000.00 "0.73
Cor.str-uct ion MPMt ~..'.,~~~.i"'< . ':' . .~, ~"'., ".~.~: .
e.."lr: :;.rvle..::'::':'~',;' '.67:5,000~00":" 0.73 1.00 .492,7~0.00 0.27 1.00
1 n.Ollet Ion ,'-:' ,; , $3,683,9:56.00' '0.73 1.00 $2,689,287.88 0.27 1.00
r..hr'Q $1,440..970.00..;., .0.73 ..-.J..00_. .1, 0:a,.908. ,10_.....0. 2l.__J..~.Cl!, _ _.
$6,~G0,790.00 0.73 0.11
'1, :;60, 000.00.. _ 0.,73._" 0.00
.:510,866.8:5
to.00
0.27 0. 11
.0. 27 , . ..0. 0~.
$188,9:50.7:5
.0.00
0.73 0.11 .47,024.05
0..73_..0.11 .. .11,342.04_
0.73 0.:50 .2,143,417.39
0.73 1.00 .816,989.30
.0.73.. 1.00 .1,286,296.~0,
0.73 0.11 .3,893.33
0.27
.0.21.
0.27
0.27
0.27
0.27
0.11
..,,0. 11
0.~0
1.00
1.00 ..
0.11
.17.392....6
, .,., 19:5.00
.792,770.81
.302, 174. 13
.., $47:;, 7:53. ~0
$1,440.00
'" ..1. 00. .:53, 272, 670. :;3 .
1.00 $2,663,633.:53
0.11 .1,081,490.13
0..27. _ 0,1.00.._$19,7"3, :590..47 .. __
0.27 1.00 $9a~,179.:52
0.27 0.11 $400,003.20
.182,2:50.00
$994,668.12
.~89., ,061 . ,9121
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9,-,btot.l Plont
U 13, 987, 944. 61
.66,071,:;69.6:5
.24,437,429.87 .90,~08,99'3.:52
TOT~_ PLANT,+,nAW
,"~." ; .
.140,061,177.09
.. ... ..,. ...... .... ..., ...--. .... ....-.-
.74,774,087.74 $24,437,429.87 .99,211,:517.61
LAPortll Ar.... Wtr{ Autti'. Sh.rll, .
DI.trlbutlon
Pr.liM Engln..~ing
Flnal O..ign
Con.t~uc:t Ion.'. :: "'"...
"
, .
_._ .3,92:5,639.61__ .__ .:....,__ _$:56')1, ;392, 12 n.. _ _u_.._
MULT 3 MULT 2
."..ti:""
.' ~' " I,,:,,>; '..: ....;'...,;.:.
. :'.
U,132,87:5.00.
$1,66:5,93:5.00
, .... .29, 383,200..00______ __.,
....- .... --.. --...--.. ""---
0.4:5 0.11 .:56,077.31
0.4~ 0.33 '249,890.2:5
.. __. ___Rl..~CIto.33,__~4._U7.....4~~_. 00_.._ ___
TOTA~ DlSTRIPUTlON ... ;
132,182, cue. 00
.",713,447.:56
LaPort. A~.a Wtr Auth Sha~. Di.tribution
.0.00
t "" '. ....'".... ".. llo-". Wt,. A.~th ~".r.
.4. 49:5. 0~ 1. 72
~
GRnNO TOTn~ $172,243,187.09
NOTES.
1. ~r~liMin~ry -- as of July 1, 1907
2. PODk plaht eap~eity 80 Mgdl peak pumping capacity 22~ Mpd.
3. A~~UM.S ultiMAte construction of 7~0 mgd plant.
.... "'ULT 1 Prodo.aetion/Pu,...ping Alloeation"F4IIetor"..c73/27) __..__,__
~ULT 2 - Cost ~lloeated to this prOJeet in conteMt of over.ll SEWPP proJeet.
MULT 3 . Oistanee Allocation on Distribution Pipeline (BID in See ....08)
~. FINAL PROJECT COSTS TO 9E ~ASED ON ACTUAL EX~ENOITURES.
." '~, .
. ,'l"--' ~~~: --.. - ........---.....-'
:..' '" ~., ' :...
,.'
. :~f ~t.
_j:-~'...;t\ .....___ ....... _..--..:... ....~ __.;....._____.... _.___.. .._.... ...._..... __...._...._.._
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.' '
. ';. ^,.:~, .. .
. :""'"'" :. .~
,';;:':~~}~;7r
.('....
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., -:_:':___0" ._~_~.__... e.... ... ...
, "~' ~.
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,_., ..-. -.- .--- -..--
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JI~I-87
flc:l-07
.'.~rl-OCl
nOI'-oo
JI.tl-sa
Oct.-M
Jt\...-8'3
RI'lI"-S'3,
JIll-8'3
C "\1'"
~8:::~
$1,31.6
t1,74'3
$~.1:-,8
t.~t~a2
$:~. ~64
tZ,6oll6
....01~
t"f4'3~
.
.
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780.00
S0\1l.0gl
600.oZI0
:;:00.00
034.00
Jl.!l0.ll\Q\
600.00
000.00
031. 00
---_.-----
.
to.a0
to.3a
$0.4Z
s0.~1
".0.60
.0.73
S0.86
.0.96
.1.07
c:ctr,t 'A/
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EX1iIBIT "B"
Transmission System Layout
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Exhibit "e"
Distribution System Layout
.
Exhibit "D"
Conservation Plan
.
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REOUEST FOR CITY COUNCIL AGENDA ITEM
Agenda Date Requested: November q, 1q87
Requested By: John D. Armstron~ Department: Attornev, LPAWA
X Report Resolution Ordinance
Exhibits: Contract for supply of potable water and the
construction, financing and operation of water treatment
transmission and distribution facilities between La
Porte Area Water Authority and the Bayshore Municipal
Utility District
SUMMARY & RECOMMENDATION
City Council has seen the contracts in their entirety and has
approved the contracts in the past.
Bond Counsel for the La Porte Area Water Authority has .reviewed
and approved the contract as submitted. The only changes of
substance are:
A. Section 10.01 - language has been updated to reflect the
new tax reform act of 1986;
B. Section 6.01 - has been updated to reflect the new
financing formula, which has been made consistent with
the financing and cost formula contained in the City of
Houston's Water Sales Contract to the La Porte Area
Water Authority. A total of five Baker & Botts lawyers
have reviewed the contract and have approved it.
The City of Morgan's Point is anticipated to approve their
contract on November 11, 1987, and the City of Shoreacres to
approve their contract on November 9, 1987. These two contracts
will be submitted to Council for their approval as a special item
on. the agenda for the proposed workshop on November 16.
Action Required by Council:
Approval of contract between LPAWA and Bayshore Municipal
Utility District
Availability of Funds:
General Fund
Capital Improvement
Other
Water/Wastewater
General Revenue Sharing
Account Number:
Funds Available:
YES
NO
Cit Council A enda
DA Ii ;/otis 7
.k
R rt T. Herrera
ity Nanager
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THIS CONTRACT IS SUBJECT TO ARBITRATION
UNDER THE TEXAS GENERAL ARBITRATION ACT
CONTRACT FOR THE SUPPLY OF POTABLE WATER AND THE
CONSTRUCTION, FINANCING AND OPERATION OF WATER TREATMENT
TRANSMISSION AND DISTRIBUTION FACILITIES
THIS CONTRACT (the "Contract") made and entered into as of
the
day of
, 19_, 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 Bayshore Municipal Utility District, a Water and Reclamation
District of the State of Texas (the "District"),
WIT N E SSE T H:
WHEREAS, the Harris-Galveston Coastal Subsidence District
(the "Subsidence District"), was created by the Leg islature of Texas
in 1975 for the purpose of regulating the withdrawal of groundwater
from the area within the boundaries of Harris County and Galveston
County in order to end subsidence which contributes to or precipitates
flooding, inundation or overflow of any area within the District:
WHEREAS, the Subsidence District is charged wi th the duty
and has the power to control and prevent subsidence within its
boundaries by reducing the amount of groundwater withdrawals from
all wells within the Subsidence District which produce groundwater,
including those owned and operated by corporations, governmental
subdivisions or agencies and other organizations;
WHEREAS, the District and other Participants named in Section
2.01 hereof are required by the rules and regulations of the Subsidence
.
ATTEST:
By:
Secretary
ATTEST:
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BAYSHORE MUNICIPAL UTILITY DISTRICT
By:
By: -kJ~ j), f{ <2-1. ·
. , I) Secretary
APPROVED:
ATTEST:
By:
~:-
President
IRENE POPE HARDY
NOTARY PlJ811C IN AND
FOR HARRIS COUNTY TEXAS
COMMISSION EXPIRES 10/31/89.
CITY OF LA PORTE, TEXAS
By:
Mayor
City Secretary
-47-
REOUES~OR CITY COUNCIL AGENDA IT~
Agenda Date Requested:
November 9. 1987
Requested By:
John D. Armstrong
Department: Attorney. LPAWA
Resolution
Ordinance
Report
Contract Approval
Exhibi ts: City of Houston, Texas;La
Water Project Contract
Porte Area Water Authority; Cost Sharing
SUMMARY & RECOMMENDATION
Extension of process by which La Porte Area Water Authority has negotiated for the
purchase of Water from the City of Houston Southeast Water Purification Plant,(located
near Ellington Field on Genoa Red Bluff Road)and resale of said Water to the City of
La Porte, City of Morgan's Point, City of Shoreacres, and Bayshore Municipal Utility
district.
Price terms, bonded indebtedness, and the necessity for the conversion to surface
water from well water have been fully presented to the City Council in the past.
There have been no changes in the terms of bond financing, or the terms of purchasing
Water from the City of Houston.
The Houston City Council approved this contract on November 4; 1987. The La Porte
Area Water Authority approved this contract on September 23, 1987
.~ ,
Action Required by Council:
Approval of Contract
Availability of Funds: N/A
General Fund
Capital Improvement
Other
Water/Wastewater
General Revenue Sharing
Account Number:
Funds Available: __ YES __ NO
A
a
/1/cc/v7
DATE! (
t T. Herrera
Manager
~REQUEST FOR CITY COUNCIL fIlNDA ITEM
Agenda Date Requested: October 26, 1987
Requested By:
Department: Administration
xx
Report
Resolution
Ordinance
Exhibits:
Proposed Contract with CRSS Constructors, Inc. for Project
Management Services.
SUMMARY & RECOMMENDATION
A proposed Contract for Project Management Services is attached
for Council's consideration. The Agreement provides for a Project
Director to assist the City as an extension to the City's staff
in management planning, coordination, construction contracts
management, and reporting. The Contract also stipulates that the
City may have the Project Director assist in the management of the
delivery of other Capital Improvement Projects not initially
contemplated by this Agreement. The City will be responsible for
providing an office, telephone, consumable office supplies,
postage and clerical support sufficient to accomplish typing,
filing and and other clerical needs. The City may elect to
provide a vehicle or reimburse the Project Director for the use of
a personal vehicle at the rate of $0.215/mile.
The Contract is for services through October 31, 1988. The
compensation for these services shall be according to the
following schedule and estimate:
Lump Sum
$ 17,800
Reimbursable Labor for Project
Director $64.80/hr.
139,968
Reimbursable Expenses at Cost;
Estimated at
7,000
Other reimbursable labor expenses
as approved shall be established
as follows:
Salary X 1.35 (fringes) X 1.65 (G&A) X 1.1
= per hour compensation; estimated at
5,000
$169,768
This amount represent approximately 3.6% of 4.68 million dollars.
Action Required by Council:
Approve Contract with CRSS Constructors, Inc. to provide Project
Management Services for portions of the City's Capital
Improvement Program. The Contract shall be funded from the
interest earned on the 1985 series General Obligation Bonds.
(t)Of~f-\- ~-..l\Yc.t.t R~~\"'~S i'tr'flOW'ThN\ ~~~.:t w',\\
Availability of Funds: HIo\\ -\-\"i~ (l~tNc\o.... \i\-~ If' J:. C~'" y.lo' a..~c..~ CA~Y~~P'\.~\
VI \~ CR ~ ~\ 'r'r'i N~
General Fund . Water/Wastewater
X Capital Improvement General Revenue Sharing
Other
Account Number:
Funds Available: 1- YES
NO
Approved for City Council Agenda
6?\J~ \: ~
Robert T. Herrera
City Manager
10- 2..2-- '€>'L
DATE
.
.
.......- -
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CITY OF LA PORTE
INTER-OFFICE MEMORANDUM
TO: Mayor Norman Malone &
Members of City Council
DATE: October 30, 1987
FROM: Robert T. Herrera, City Manager
SUBJECT: Project Management Contract
I am pleased to advise you that CRSS Constructors, Inc. has agreed
to the City of La Porte's contract requirements. Enclosed is a
copy of a final draft which Counc il will consider during the
November 9, 1987, Council Meeting.
I am anxious to bring this firm on board as I truly believe they
will professionally assist us in completing the 1985 General
Obligation Bonds which were issued. I recommend this contract be
awarded with an initial budget authorization of $_~~-,l2.~!...Oj)______
to be paid out of interest earned on the 85 General Obligation
Bond Series.
RTH/jb
cc: Ken Womack, CRS Sirrine
Knox Askins, City Attorney
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CITY OF LA PORTE
: ~,:~~.. .'
, ~!
PHONE (713) 471-5020 . P. 0, Box 1115 .
LA PORTE, TEXAS 7757 I
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~:~~:'.~~..~i!fn:~;tt~_~%:~~~\~"}fur{0.:r:,~&~:::;:;.\~:~.:~;.ij:~'~:;:(;~~~0:r~'~rfl~~
.' , '",',"':'-'-,'" ""."'j:;n;''''oill'.:,,,,,.,,,,,,,,,,,,,, ~"''''.~'-'A'''','' ',V',',,"",:,: ",..,p:.,\'.'I.'l...:,.\1\~,.,~~'..l..~,,'j:_
,- .........._,.......~'W-~A:a~._~~.~l~..........-.;;'.....~.. .....~JH':. l-..:..... ,,__ ..t:'...__""-ft~I1;oo...,...._ilioJ;..~.
October 27, 1987
Mr. Ken F. Womack
" T ,.Yice President Construction
CRS Sirrine
1177 West Loop South
Post Office Box 22427
Houston, Texas 77227
Dear Mr. Womack:
This correspondence addresses our recent contract negotiations. In particular,
the subject with regards to the Section on Indemnity and Section 10.5. After
serious consideration, I have instructed the City Attorney to rewrite these
sections.
Attached please find the provisions which the City of La Porte feels are
appropriate. I believe it protects the City and CRSS Contractors equally
while maintaining the intent of the service we are seeking and the service
you wish to deliver to us.
Quite frankly, unless we can reach an agreement within the next couple of
days (48 hours), I believe we should discontinue our contract talks and
reduce our time losses. Since I am negotiating for professional services,
I will then proceed to visit with Dannenbaum Engineering Corporation for
project management.
I sincerely hope we can reach an agreement. If not, then I thank you for your
geniune cooperation and interest in the City of La Porte and hope we can work
together in the future.
Sincerely,
G?~ T. ~
Robert T. Herrera
City Manager
RTH/jb
Attachment: (1)
cc: Knox Askins, City Attorney
~ . .
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CRS SIRRINE
28 October 1987
Robert T. Herrera, City Manager, City of La Porte, P.O. Box 1115, La
Porte, TX 77571
Re: Final Contract for Project Management Services
BOB, enclosed are four originals of the Project Management Agreement
which have been executed by CRSS Constructors, Inc. Additionally
there are two other unsigned copies for your use.
With a copy of this letter I have provided Knox Askins with a copy.
Thi s fi na 1 versi on of the Agreement refl ects exactly the changes
requested via Mr. Askins' letter of 27 October 1987, with a very
minor change to 8.1.1. This minor change was reviewed with Mr.
Askins who provided the exact wording.
I apologize for the contract drafting having become so protracted.
I was quite surprised by Mr. Askins' strong position on removing the
waivers of subrogation. This is an area that has not been a
significant issue in other contracts. The waivers of subrogation
provisions have been taken out of the final version.
The removal of the waivers subrogation provision has been made with
real reservations on my part. Our in-house counsel and our
insurance agent tell us that the deletion of these provisions leaves
us virtually uninsured. Mr. Askins told me his concern was that the
City would be contracting away the City's insurance company's rights
without their agreement. This might have jeopardized the City's
abi 1 i ty to continue to be insured or mi ght have cau sed increased
premiums.
Having explained my concerns to Mr. Askins, he stated that he
suspected that the City would not have any reservation about
requesting the desired waivers of subrogation from the insurance
carriers, even though it is not now a contract requirement. He did
make it clear that the City would not press the issue if it would in
any way jeopardize the City's ability to continue their coverage or
if there was any associated premium increase.
CRSS Constructors, Inc.
1177 West Loop South
Post Office Box 22427
Houston. Texas 77227
713 552-2000
Telex 6868544
A CAS Sirrine. Inc. Company
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Mr. Robert Herrera, Page 2, 28 October 1987
I trust we can address this topic in the near future. At least it
is now off the table as a contract issue.
I am glad that we have been able to resolve the last few points of
the Agreement. I look forward to a positive recommendation on our
Agreement to the City Council and in turn, thei r favorabl e vote of
approval.
Please let me know if there is any way I can improve our service to
the City. CRSS Constructors does have La Porte's best interest in
mind, and will be working hard to assure a successful project.
Sincerely,
?<:.- d
Ken Womack
Vice President Construction
cc Knox Aski ns
Ross Cox
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.' :t-
AGREEMENT
for
PROFESSIONAL PROJECT MANAGEMENT SERVICES
AGREEMENT
Made this
Hundred and Eighty Seven
day of October, in the year of Nineteen
BETWEEN
"
The City,
City of La Porte
604 West Fairmont Parkway
P.O. Box 1115
La Porte, Texas 77571
and
Project Manager, CRSS Constructors, Inc.
1177 West Loop South
P. O. Box 22427
Houston, Texas 77227
For services in connection with the following Project:
Portions of the Capita 1 Improvements Program - La Porte, Texas,
including specifically the following items from the Description of
Capital Improvements Projects (Exhibit A):
1. Improvements of Land
Little Cedar Bayou Park
2. Storm Water Drainage, Phase I
3. Broadway from "G" Street to Fairmont
Parkway
4. Improvements of Land
Northwest Park (Lomax)
5. Fire Training Facility
A more complete description of items one through five is included as
Exhibit B, pages 1 through 5.
The City and Project Manager agree as set forth below:
1 of 1 7
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ARTICLE I DEFINITIONS AND EXTENT OF AGREEMENT
The Project Manager accepts the relationship established between him
and the Ci ty by thi s Agreement. He covenants wi th the Ci ty to
furnish his skill and judgment, and to cooperate with the
Architect/Engineer in furthering the interests of the City. He
agrees to furnish business administration and to use his efforts to
endeavor to complete the Project in an expeditious and economical
manner.
1. 1 Extent of Agreement: Th is Agreement represents the ent ire
agreement between the Ci ty and the Project Manager and supercedes
all prior negotiations, representations or agreements. This
.Agreement shall not be superceded by any provisions of the documents
for construction and may be amended only by written instrument
signed by both the City and the Project Manager.
1.2 Defi ni tions
1.2.1 The Project is the total construction to be managed under
this Agreement.
1.2.2 The Work is that part of the construction that a particular
Trade Contractor is to perform.
1.2.3 ' The term day shall mean calendar day unless otherwise
specifically designated.
1.2.4 Archi tect/Engi neer shall mean those parti es engaged by the
City to provide design, architectural and engineering services.
ARTICLE II PROJECT MANAGER'S SERVICES
2.1 The Project Manager will appoint a Project Director,
subject to the City's approval, which approval shall not be
unreasonab 1 y wi thhe 1 d. The Project Di rector wi 11 perform a 11 of the
basic services. The Project Director will be assigned to the
Project for the contract period, or until services described in this
Article 2 are completed to the satisfaction of the City, whichever
is earlier.
2.1.1 Should the City become substantially dissatisfied with the
performance of the Project Director, City shall give notice of such
dissatisfaction to Project Manager, citing the reasons therefore.
Notice shall describe areas of dissatisfaction. The Project Manager
wi 11 promptly correct the performance of the Project Di rector or
replace the Project Director as set forth in 2.1.2.
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2.1.2 Should the Project Director be removed from the Project
pursuant to 2.1.1 or for any other reason, such as termination of
employment, then the Project Manager sha 11 appoi nt a rep 1 acement
Project Director, subject to City's approval, which approval shall
not be unreasonably withheld. The replacement Project Director will
meet the minimum requirement of having an Engineering or
Architecture degree and at least eight years of experience in
program management, including projects similar to the City's. The
City reserves the right to waive such minimum requirements, as
deemed to be in City's best interests.
2.2 The basic services to be provided by the Project Director
include assisting the City as an extension to the City's staff in
management planning, coordination, construction contracts
,management, and reporting through 31 October 1988. Specific areas
of assistance are itemized as follows:
2.2.1 Review status of each applicable Capital Improvement
Project and assist The City of La Porte (City) in the development of
a coordinated delivery plan, including a scheduling of key
activities required to meet a specific completion date and an
accompanying budget.
2.2.2 For those portions of the projects which have not been
fully designed, assist The City in expediting design completion by
the Architect/Engineer.
2.2.3 Assist The City in Trade Contractor prequalification,
soliciting bids for portions of the Work and in the evaluation of
bids.
2.2.4 Review out-of-budget bids and recommend alternatives to
lower costs, such as re-packaging and re-bidding the Work,
substitution of materials, reductions or other changes to scope, etc.
2.2.5 Assist The City in contract negotiations and contract
administration for design services, consultants, testing labs, soils
investigation, and other related services and Work.
2.2.6 Maintain files of project documents in an orderly,
retrievable manner.
2.2.7 Prepare monthly report for City indicating progress to
date, anticipated completion, cost status, and other cogent
information.
2.2.8 Present summary reports at City Council meetings from time
to time, as requested.
2.2.9 Assist The City in the administration of construction trade
contracts, including, but not limited to:
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Review and recommend action on Trade Contractor Schedule of
Values.
Review and recommend action on Trade Contractor Payment
Applications.
Review and recommend action on Trade Contractors
construction schedule.
Monitor submittals process for shop drawings and data.
Review and recommend action on contractor Change Orders.
Assist in negotiation of Change Orders as required.
Assist in defending City's position in the event of a
disputed trade contractor claim (this does not include
legal defense efforts or costs).
Moni tor progress of Trade Contractor I s work through
frequent touring of job sites.
Attend City/Trade Contractor progress meetings.
Upon Trade Contractor completion, assist City in contract
close-out, such as in soliciting final lien releases,
affidavits of payments of debts and claims, as-built
drawings, warranties, maintenance/operating manuals.
2.3 From time to time The City may have the Project Director
assist in the management of the delivery of other portions of the
Capital Improvement Program not otherwise contemplated in the
Project. The City expressly agrees that such assistance may dilute
the Project Director's efforts in fulfilling the basic'services
itemized in Paragraph 2.2, and the City assumes full responsibility
therefor.
2.4 Project Manager will provide Executive Management as
required to administer this Agreement. Executive Management is
anticipated to require approximately 100 man!lours of Executives
(Vice Presidents) time. Executives will monitor and provide
guidance to Project Director, arrange for and coordinate the efforts
of Project Manager's support staff, assure quality of services
provided, remain available to City to assist in Project problems
which may arise.
2.5 During the ten days following the delivery of the personal
computer to the Project Di rector's offi ce, the Project Manager wi 11
provide personnel to Initialize the Computer Systems. Initializing
the system includes interconnecting computer components and loading
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software onto computer system, all as deemed necessary by the
Project Manager. Software includes operating system, standard
programs purchased for Project and several of Project Manager's
proprietary systems. The latter are to be removed from the computer
upon cessation of services under this Agreement. Initialization of
system also includes establishing and inputting preliminary schedule
and cost data, all as deemed necessary by the Project Manager to
effectively manage the Project. The initialization of the system is
anti ci pated to requi re 160 manhours of Project Manager I s support
personnel, including programmers, estimators and schedulers.
2.6 The Project Manager will not provide any design service or
provide any direct construction Work. The Project Manager may make
suggestions from time to time as to design, construction means and
.methods, construction safety and other project issues. Such
suggestions shall not in any way be construed as providing design
services or for directing the doing of any Work, whether such
suggestions are implemented by The City or others in the direct or
indirect employ of The City.
2.7 Observation of Work and Safety: Observe the Work of Trade
Contractors for defects and deficiencies in the Work without
assuming any responsibility or liability for such defects or
deficiencies or any responsibility or liability for design or
inspection. Initially, generally and non-exhaustively review the
wri tten safety programs of each of the Trade Contractors and make
recommendations. In making such recommendation, he shall not be
required to make inspections or exhaustive, subsequent or continuous
reviews to check quality of work or safety precautions and programs
in connection with the Project. By performing the foregoing, the
Project Manager shall not assume any responsibility or liability for
performance of the work, or for the safety of persons and property,
or for compliance with federal, state and local statutes, rules,
regulations and orders applicable to the conduct of the Work.
2.8 The Project Manager shall not be liable nor responsible for
the deta i 1 ed means, methods, or sequence and safety measures
employed by others to accomplish their Work, nor shall the Project
Manager be liable or responsible for the acts or omissions of those
employed by the City or the Architect/Engineer in any capacity for
performing such Work.
ARTICLE III ADDITIONAL SERVICES
3.1 The City, without invalidating this Agreement, may require,
with Project Manager's approval, additional services within the
general scope of this Agreement consisting of services described in
Paragraph 3.3 below, the Project Manager's Compensation and the Term
of Agreement will be adjusted accordingly.
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3.2 A Change Order is a written order to the Project Manager
signed by the Ci ty and the Proj ec t Manager and is sued after the
execution of this Agreement, authorizing a change in the scope of
the Project, services to be provided, the Project Manager's
Compensation or the Term of Agreement.
3.3 The following services are deemed to be additional services:
3.3.1 Any services provided after 31 October 1988, including
those of the Project Director.
3.3.2 Construction cost estimating, except as provided by Project
Di rector.
,3.3.3 Computer programming required to meet specific City
requirements or to customize Project Manager's standard software to
meet City requirements, except such programming that might be
provided by Project Director.
3.3.4 Preparation of computerized CPM schedules, except as
prepared by Project Director.
3.3.5 Management of contractor claims or assistance to The City
in the defense of contractor claims, except as provided by the
Project Director.
3.3.6
Manager's
Services.
Other project management services provided by Project
personnel, other than those contemplated in the Basic
ARTICLE IV OWNER'S RESPONSIBILITIES
4.1 The City shall provide full information regarding his
requirements for the Project.
4.2 The City identifies Bob Herrera, the City Manager, as the
Administrator of this Agreement. He shall be the primary point of
contact for the Project Director and shall oversee and give
direction to the Project Director as needed. The Administrator
shall be authorized to represent the City in all matters arising out
of this Agreement. The City may change the designated Administrator
by giving written notice to the Project Manager.
4.3 The City sha 11 prov ide. free of charge, an offi ce for the
Project Director and for additional personnel provided at La Porte,
pursuant to Articles II and III. The office shall contain all the
normal appurtenances customarily provided by the City to its
professional employees.
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4.4 The City shall furnish, free of charge, consumable office
supplies, as the Project Manager may reasonably require.
4.5 The City shall furnish and pay for telephone service to the
Project Director solely for the use of conducting City business.
4.6 The City will provide access, free of. charge, to
reproduction equipment.
4.7 The City wi 11 prov ide pos tage and sh i pp i ng, free of charge,
as required for the Project Manager to best fulfill its needs in
executing City business.
4.8 The City will provide sufficient clerical support to the
.Project Director to efficiently accomplish his typing, filing and
other clerical needs.
4.9 Periodically the Project Manager will conduct internal
quality control audits of its various projects, to help assure that
the Project Manager's personnel are fulfilling the Project Manager's
obligations and to improve the performance of services. It is
anticipated that on one or more occasions that the services provided
pursuant to this Agreement will be subject to such an audit. The
City Manager, or his appointee will participate in portions of the
audit, for the purpose of assessing the City's degree of
satisfaction with services provided and to identify areas where
service can be improved to better meet City needs.
4.10 The City shall be responsible for and shall retain an
Architect/Engineer for design and to prepare construction documents
for the Project. The Architect/Engineer's services, duties and
responsibilities are described in the Agreement between the City and
the Archi tect/Engi neer, a copy of whi ch wi 11 be furni shed to the
Project Manager. The Agreement between the City and the
Architect/Engineer shall not be modified without written
notification to the Project Manager. The Project Manager shall
neither be responsible nor liable for any damages arising from the
services, duties and responsibilities of the Architect/Engineer.
The Project Manager will be responsible for assisting the City in
monitoring the Architect/Engineer's services, all as set forth in
paragraphs 2.2 and 2.6.
4.11 The City shall furnish for the site of the Project all
necessary surveys describing the physical characteristics, soil
reports and subsurface investigations, legal limitations, utility
locations, and a legal description.
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4.12 The City shall secure and pay for necessary building
permits, special permits, and environmental permits, and approvals,
easements, assessments and charges required for the construction,
use and occupancy of permanent changes in existing facilities.
4.13 The City shall furnish such legal services as may be
necessary for providing the items set forth in Paragraph 4.13, and
such auditing services as he may require.
4.14 If the Ci ty or the Project Manager becomes aware of any
fault or defect in the Project or non-conformance with the Drawings
and Specifications, he shall give prompt notice to the other party.
.ARTICLE V TRADE CONTRACTS
5.1 All portions of the Project shall be performed under Trade
Contracts including contracts for general construction work with
several construction trades. The Project Manager shall assist the
City in requesting and receiving competitive bids from Trade
Contractors and Trade Contracts wi 11 be awarded by the Ci ty after
the competitive bids are reviewed by the Project Manager and City.
5.2 Trade Contracts wi 11 be between the Ci ty and the Trade
Contractors. The contents and form of the Trade Contracts including
the General and Supplementary Conditions shall be satisfactory to
the City.
5.3
suppliers
otherwise.
The phrase Trade Contractor shall be deemed to also include
throughout this agreement unless expressly stated
ARTICLE VI PROJECT MANAGER'S COMPENSATION
6.1 In consideration of the performance of the Agreement, the
City agrees to pay the Project Manager in current funds as
compensation for his services a Project Manager's Compensation. The
Project Manager I s Compensation i nc 1 udes the Lump Sum, Re i mbursab 1 e
Labor and Reimbursable Expenses, all as set out in Subparagraphs
6.1.1 through 6.1.4, inclusive.
6.1.1 The Lump Sum is for Executive Management and to Initialize
the Computer Systems pursuant to paragraphs 2.4 and 2.5. The Lump
Sum is the stipulated sum of $17,800.00.
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6.1.2 Reimbursable Labor includes the manhours expended by the
Project Director in the performance of Basic Services times the
hourly rate of $64.80. No increase in the hourly rate will be made
on account of overtime expended by the Project Director to
accomplish Basic Services.
6.1.3 Reimbursable Labor includes the manhours' of Project
Manager's personnel expended in providing Additional Services times
the hourly rates listed as follows:
Reimbursable Labor Schedule
Position
Hourly Rate
Effective through
31 October 1988
,.
Project Director
Estimator
Scheduler
Accountant
Programmer
Field Manager
Safety
Clerical
Executive
$ 64.80
47.11
58.81
38.87
58.81
41 .23
53.00
23.55
100 . 00
Hourly rates not listed above, due to omission of a position or
because service is provided subsequent to 31 October 1988 will
be established as follows. Hourly rate will be equal to Direct
Hourly Payroll Expense <D.P.E.) times 1.65 plus 10i.. D.P.E. is
defined to be equal to employee's annual base salary divided by
2080 hours, plus 35% for payroll taxes, insurance and other
customary or mandatory benefits and cost.
6.1.4 Reimbursable Expenses are those expenses reasonably incurred by
the Project Manager in the performance of direct or additional services
including, but not limited to, the following items at actual cost to
Project Manager, and all of which are subject to City's authorization in
advance of expenditure or billing to City:
Travel, lodging and meal expense;
Mileage in personal autos @ $0.215 per mile;
Reproduction by outside vendor;
Long distance charges;
Home office computer and plotter @ $5.00/Hour;
Postage and shipping;
Personal computer, printer, appurtenance and software; and,
Other City-approved direct expenses.
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The personal computer, appurtenances and software are requl red to
accomplish Basic Services. All (except Project Manager's
proprletary software) become the property of City upon payment
thereof by City. The total expense of these items lS estlmatedat
$6,500.00. The Project Manager wi 11 consult with City prlor to
recommendlng procurement of, specific items and requestlng approval
for expendlture. The City's approval of thls expendlture wlll not
be unreasonably wlthhe1d.
6.2 The basics for compensatlon of Addltional Servlces may be
structured differently than as provided in 6.1, lf the City deems such
different basls to be ln the City's best interest, and subject to Project
Manager's agreement in wrlting.
ARTICLE VII PAYMENTS TO PROJECT MANAGER
7.1 The Project Manager shall subml t month 1 y to the Cl ty a
statement, sworn to, if required, showlng Lump Sum, due or owed
Relmbursab1e Labor by positlon and name, and Relmbursable Expenses
itemlzed. If requlred, Project manager will provide coples of lndivldual
timesheets and accountlng documents to support labor and expense portlons
of a statement. Payment by the Clty to the Project Manager of the
statement amount shall be made wlthln 15 days after lt is submitted.
7.2 Project Manager's flnal statement w1l1 be noted as "Final
Statement." The Project Manager's submlsslon of Final Statement and the
City's maklng of final payment to Project Manager shall constitute a
walver of all claims, presently known or unknown, against the Project
Manager.
7.3 If the Ci ty shoul d fail to pay the Project Manager at the ti me
that the payment of any amount becomes due or owed, then the Project
Manager may, upon ten (10) days written notice to the City, stop
providing services until payment of the amount owing has been received.
7.4 All amounts due or owed the Project Manager but unpaid shall
bear interest at the rate of one and one half percent (1-1/2%) per month
(or the applicable maximum lawful limit, lf less), plus attorney's fees
and legal costs to collect same.
ARTICLE VIII INSURANCE, INDEMNITY AND WAIVER OF SUBROGATING
8.1 Indemnity
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8.1 .1 The Ci ty shall cause all Trade Contractors to i ndemn i fy the
City, and its agents, including but not limited to the Project Manager,
and hold them harmless from all claims for bodily injury and property
damage that may arise from such Trade Contractor's negligence or
intentional conduct in carrying out its operations.
8.1.2 The City shall indemnify and hold the Project Manager harmless
from all claims, costs, damages, liabilities and attorney fees that may
arise from and as a result of the City's negligence or intentional
conduct arising from City's operations and responsibilities under this
Agreement.
8.1.3 The Project Manager shall indemnify and hold the City harmless
from all claims, costs, damages, liabilities and attorney fees that may
,arise from and as a result of the Project Manager's negligence or
intentional conduct arising from Project Manager's operations and
responsibilities under this Agreement.
8.2 Insurance
8.2. 1 The Proj ect Manager sha 11 purchase and ma i nta in such insurance
as will ,protect him from the claims set forth below which may arise out
of or result from the Project Manager's operations under this Agreement.
8.2.1.1 Claims under workers' compensation, disability benefit and other
similar employee acts which are applicable to the work to be performed.
8.2.1.2 Claims for damages because of bodily lnJury, occupational
sickness or disease, or death of his employees under any applicable
employer's liability law.
8.2.1.3 Claims for damages because of bodily injury, or death of any
person other than his employees.
8.2.1.4 Claims for damages insured by usual personal lnJury liability
coverage wh i ch are sus ta i ned by any person as a resu 1 t of an offense
directly or indirectly related to the employment of such person by the
Project Manager.
8.2.1.5 Claims for physical property damage, other than to the work
itself or to other property to be insured under Article 10.4.
8.2.1.6 Claims for damages because of bodily injury or death of any
person or property damage (other than to the Work i tse 1 f or any other
property to be insured under Article 8.4) arising out of the ownership,
maintenance or use of any motor vehicle.
8.2.2 The Project Manager's Comprehens i ve Genera 1 L i abi 1 i ty Insurance
shall include premises - operations (including explosion, cOllapse and
underground coverage) , e 1 eva tors, independent contractors, comp 1 eted
operations, and blanket contractual liability on all written contracts,
all including broad form property damage coverage.
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8.2.3 The Project Manager's Comprehensive General and Automobile
liability Insurance, as required by Subparagraphs 8.2.1 and 8.2.2 shall
be written for not less than limits of liability as follows:
a. Comprehensive General
Li ab i 1 i ty
1. Persona 1 Inj ury
$1,000,000 Each Occurrence
$1,000,000 Aggregate
2. Property Damage
$1,000,000 Each Occurrence
$1,000.000 Aggregate
b.
Comprehensive Automobile
L i ab i 1 ity
1. Bodily Injury
$1,000.000 Each Person
$1,000,000 Each Occurrence
$1,000,000 Each Occurrence
2. Property Damage
8.2.4 Comprehensive General Liability Insurance may be arranged under
a single policy for the full limits required or by a combination of
underlying policies with the balance provided by an Excess or Umbrella
Liability policy.
8.2.5 The foregoing policies shall contain a provision that coverages
afforded under the policies will not be cancelled or not renewed until at
least thirty (30) days' prior written notice has been given to the
Owner. Certificates of Insurance showing such coverages to be in Force
shall be filed with the city prior to commencement of the Work.
8.3 City's Liability Insurance
8.3.1 The City shall be responsible for purchasing and maintaining the
City's own liability insurance and shall purchase and maintain such
insurance as will protect the City against claims which may arise from
operations under this Agreement.
8.4 Insurance to Protect Project
8.4.1 The Ci ty shall purchase or cause to be purchased and ma i nta in or
cause to be maintained a builder's risk insurance in a form acceptable to
the Project Manager upon the entire Project for the full cost of
replacements as of the time of any loss. This insurance shall include as
named insured the City, the Project Manager, Trade Contractors and their
Trade Subcontractors and shall insure against loss from the perils of
Fire, Extended Coverage, and shall include "All Risk" insurance for
physical loss or damage including, without duplication of coverage, at
least theft, vandalism, malicious mischief, transit, storage, collapse,
flood, earthquake. testing. and damage resulting from defective design,
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workmanship or material. The City will increase limits of coverage to
reflect estimated replacement cost. The City will be responsible for any
co-insurance penalties or deductib1es. If the Project covers an addition
to or is adjacent to an existing building, the Project Manager,
Architect/Engineer, Trade Contractors and their Trade subcontractors
shall be amended as Additional Named Insureds under the City's Property
Insurance covering such building and its contents, with an endorsement if
necessary to effect coverage during construction.
8.4.1.1 If the City finds it necessary to occupy or use a portion or
portions of the Project prior to Substantial Completion thereof, such
occupancy shall not commence prior to a time mutually agreed to by the
City and Project Manager and to which the insurance company or companies
provi di ng the property insurance have consented by endorsement to the
,policy or policies. This insurance shall not be cancelled or lapsed on
account of such partial occupancy.
8.4.2 The Ci ty shall purchase and ma i nta in such boi 1 er and machi nery
insurance as may be required or necessary. This insurance shall name the
Project Manager, Trade Contractors and Trade Subcontractors as Additional
Named Insured along with the City.
8.4.3 The City shall purchase and maintain such insurance as will
protect the City, Project Manager and ArchitectlEngi neer as Addi tiona 1
Named Insureds against loss of use of City's property due to those perils
insured pursuant to Subparagraph 8.4.1. Such policy will provide
coverage for expediting expenses of materials, continuing overhead of the
City and Project Manager, necessary labor expense including overtime,
loss of income by the City and other determined exposures. Exposures of
the Ci ty and the Project Manager shall be determi ned by mutua 1 agreement
and separate limits of coverage fixed for each item.
8.4.4 The City shall file a copy of all policies with the Project
Manager before an exposure to loss may occur. Copi es of any subsequent
endorsements will be furnished to the Project Manager. The Project
Manager wi 11 be given sixty (60) days pri or written not i ce by Ci ty and
Ci ty' s insurer of cance 11 a ti on, non-renewa 1 or any endor,sements
restricting or reducing coverage and such requirements shall be stated in
certificates from such insurers and provided to the Project Manager. The
City's obligation to provide such notice to Project Manager shall also be
evidenced in certificates of insurance provided by City's insurers to the
Project Manager, which certificates shall also evidence City's insurer's
obligations to provide such prior written notice as specified above to
the Project Manager. If the Ci ty does not intend to purchase such
insurance, he shall inform the Project Manager in writing prior to the
commencement of the Work. The Project Manager may then effect insurance
which will protect his interests and/or those of others and related to
the Project, the cost of which shall be reimbursable pursuant to Article
6. The foregoi ng notwi th stand i ng, if the Proj ec t Manager is damaged by
failure of the City to purchase or maintain any such insurance, the City
shall bear all reasonable costs properly attributable thereto.
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8.5 Property Insurance Loss Adjustment
8.5.1 Any insured loss shall be adjusted with the City and made
payable to the City as trustee for the insureds, as their interests may
appear.
8.5.2 Upon the occurrence of an insured loss, monies received will be
deposited in a separate account and the trustee shall make distribution
in accordance wi th the agreement of the parti es in interest, or in the
absence of such agreement, in accordance with judicial or arbitration
award. If the trustee is unable to agree on the settlement of the loss,
such dispute shall also be submitted to litigation or arbitration.
8.6 Failure of a party to obtain insurance, endorsements, provide
,.certificates or provide proper insurance, endorsements, or certificates
or failure of the other party to object to improper, or lack of,
insurance, endorsements or certi fi cates shall not serve to wa i ve,
diminish or reduce the first party's contractual obligations or
requirements with respect to providing and satisfying all of the
insurance, named insureds, and other requirements and obligations
required by this Article 8.
ARTICLE IX TERMINATION OF THE AGREEMENT
9.1 Termination by the Project Manager
9.1.1 If the Project, in whole or substantial part, is stopped for a
period of thi rty (30) days under an order of any court or other pubi c
authority having jurisdiction, or as a result of an act of government,
such as a declaration of a national emergency making materials
unava i 1 ab 1 e, through no act or fau 1 t of the Project manager, or if the
City fails to make any payment or perform any obligation hereunder, then
the Project Manager may, upon seven (7) days' written notice to the City
and the Architect/Engineer, terminate this Agreement and recover from the
City payment for all work executed, the entire unpaid balance of Project
Manager's Compensation, and for any loss sustained upon any materials,
equipment, tools, construction equipment and machinery, services and
other items, cancellation charges on obligations, plus reasonable profit
and overhead, plus damages and costs incurred, including attorney's fees,
legal expenses, plus any amount owed Project Manager hereunder or at law
or equity.
9.2 Termination by City Without Cause
9.2.1 The City may terminate this Agreement upon giving seven (7) days
written notice to the Project Manager.
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9.2.2 If the City terminates this Agreement pursuant to 9.2.1 they
shall reimburse the Project Manager for any unpaid Reimbursable Expenses
and Reimbursable Labor of the Project due him under Article 6. The City
shall also pay to the Project Manager fair compensation, either by
purchase or renta 1, for any equi pment used or retained. In case of such
termi na ti on of the Agreement the Ci ty shall further as sume and become
liable for all obligations, commitments and unsettled claims that the
Project Manager has undertaken or incurred in good faith in connection
with said Project, including Project Manager's attorney's fees and legal
expenses. The City shall also be liable for all of the Project Manager's
other costs incurred in connection with the Project, plus Project
Manager's attorney and accounting fees, including those incurred in
obtaining the payments it is entitled to receive.
,.
ARTICLE X ASSIGNMENT, GOVERNING LAW AND LIMITATION
10.1 Neither the City nor the Project Manager shall assign his
interest in this Agreement without the written consent of the other
except as to the assignment of proceeds. Any assignment made in
violation of this provision sha1~ be void.
10.2 This Agreement shall be governed by the law of the place where
the Project is located.
10.3 Any other provision notwithstanding, in no event shall the
Project Manager be liable for consequential, incidental, indirect or
special damages in any way related to this Project or this Agreement by
way of action in contract, warranty, tort (including negligence),
contribution, indemnity, strict liability or otherwise. Consequential
damages shall be defined to include, without limitation, loss of use,
profit, interest, and revenues, business interruption, cost of capital
and rent, cost of replacement output, third party claims, etc.
10.4 It is agreed by the City and the Project Manager that this
contract is intended for the benefit of the City and the Project Manager
only, and not for the benefit of the Architect/Engineer, Trade
Contractors, Trade Subcontractors, including suppliers, any of their
employees or agents, or any other person.
10.5 The term Project Manager in Articles 10.3 and 10.5 shall also
include Project Manager's affiliates, officers, stockholders, directors
employees, agents and subcontractors.
10.6 The Project Manager does not warrant that the Project can be
completed within any particular budget or by a certain date, but the
Project Manager will use professional efforts to meet the October 1988
requirements of the bond issue funding the Work.
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10.7 The provlSlons of this contract are severable and if for any
reason any provision of provisions in this Agreement are determined to be
invalid, illegal or unenforceable, such determination shall not affect
any other provision of this Agreement.
ARTICLE XI TERM OF AGREEMENT
11.1 The services to be provided by the
commence on 12 October 1987 and terminate on
modified pursuant to Article 3 Additional
Termination of Agreement.
Project Manager shall
31 October 1988. unless
Services or Article 9
.ARTICLE XII MISCELLANEOUS PROVISIONS
12.1 The original of all correspondence pertaining directly to this
Agreement shall be directed to:
City,
City of La Porte
604 West Fairmont Parkway
P .0. Box 1115
La Porte, Texas 77571
Attn: Bob Herrera, City Manager
Project Manager,
CRSS Constructors, Inc.
1177 West Loop South
P.O. Box 22427
Houston, Texas 77227
Attn: Ken Womack
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The Agreement executed the day and year first written above.
THE STATE OF TEXAS
~OUNTY OF HARRIS
BEFORE ME, the undersigned authority, on this day personally appeared
Donald E. Landry a duly authorized agent for CRSS Constructors, Inc..
known to me to be the person and officer whose name is subscribed to the
foregoing instrument and who acknowledged to me that he executed the same
for the purposes and consideration therein expressed, in the capaci ty
therein .stated, and as the act and deed of CRSS Constructors, Inc.. a
Delaware corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, on th is the ~~'tfo- day
of DeJe.W ,1987 .
I ,'< /1/,
) "" "" ) / "
\>1,' \' , / )' ,
/ ' ',' l "
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Attest:
of Texas
Name: ~e.. H 2a..rrowS
My commission expires on: q/q/8~
CITY OF LA PORTE
By:
Norman L. Malone
Mayor
Cherie Black
Secretary
Approved As To Form:
Knox Askins
City Attorney
,.
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*** EXHIBIT "A" ***
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DESCRIPTION OF CAPITAL IMPROVEMENT PROJECTS
Construction of a Fire Station on
Spencer High~ay (Station #2)
\
Purchase of land and design of
a Fire Training Facility
Purchase and Improvement of Land
Little Cedar Bayou Park
..,....
\ Purchase and Improvement of Land
Northwest Park (Lomax)
Storm Water Drainage, Phase I
Broadway from "G" Street to Fairmont
Parkway Improvements and Design of
East "E" Street Improvements
Purchase and Improvement of Land
18 Hole Municipal Golf Course
Fairmont Parkway Relief System
Wastewater Treatment Plant Expansion
Little Cedar Bayou Park Southern
Trunk Main
POTENTIAL PROJECTS
LPAWA Transmission Lines
Sanitary Landfill
14,000 Square Foot Recreational Complex
Elevated Water Tower
Water System Improvements
$ 550,000
$ 450,000
$ 1 , 100,000
$ 900,000
$ 1,000,000
$ 1,000,000
$ 2,250,000
$ 5,108,390
$ 3,434,158
$
200,000
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EXHIBIT B
CITY OF lA PORTE
LITTLE CEDAR BAYOU PARK PROJECT
PROJECT DESCRIPTION:
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Allocated funds will be used to acqui re a 60-acre regional park to
be located at Little Cedar Bayou. The new park will include an
outdoor swimming pool, light bal1fie1ds, soccer/football field,
concession-restroom building(s), tennis courts, picnic sites,
walking trails, a playground area, a fishing pier, and a parking
lot. The target date for completion of this project is May. 1988.
REVENUES:
ORIGINAL
AlLOCA nONS
$ 1 . 1 00 . 000
680,000
41 , 1 00
$1 .821 . 100
1985 Bond.s
Texas Parks & Wildlife Grant
Federal Revenue Sharing Transfer*
TOTAL REVENUES
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APPROPRIA nONS:
land Acquisition*
Architect/Engineer
Administrative Cost
Wave Pool & Facilities
Construction & Equipment
*Lake Excavation
Tree Removal
Field Striping
$ 41 , 1 00
163,800
34,400
707,418
813,817
57,765
2,000
800
$ 1 , 82 1 , 1 00
TOTAL APPROPRIATIONS
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*lake excavation is an alternate item.
*Federa1 Revenue Sharing Carry-Over from FY 1986-1987.
1987-1988
$ 993,984
680,000
41 , 1 00
$1,715,084
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$ 4 1 , 1 00
88,319
3,865
707,418
813,817
57,765
2,000
800
$1,715,084
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EXHIBIT B
CITY OF LA PORTE
STORMWATER MANAGEMENT PROJECTS
PROJECT DESCRIPTION:
Two areas of the Ci ty were targeted by the Capi ta 1 Improvements
Ci tl zens Advi sory Commi ttee for the expendi ture of the $3 mi 11 ion
Proposition 4 bond funds: (1) Lomax, where existing roadside
ditches are four to six feet deep and where the sys tem of flood
'Control channe 1 s is adequate and (2) L itt1 e Cedar Bayou upstream of
State Highway 146, where extenisve 100-year flooding exists. Harris
County Flood Control District (HCFCD) is cooperating with the City
in defining specific projects within these two areas of the City.
HCFCD is currenty funding two master watershed studies which will
define these projects, their cost, and a cost-sharing formula
whereby, the Ci ty and HCFCD wi 11 both contri bute funds to the
projects." HCFCD has i ncl uded these two watersheds on thei r future
projects list submitted to Harris County Commissioners Court for
funding under the County's 1988 Bond Program; the election is
scheduled for November 3, 1987.
1985 General Revenue Bonds
ORIGINAL
ALLOCA nONS
$1,000,000
$1,000,000
1987-1988
$ 1 ,000, 000
$ 1 ,000, 000
REVENUES:
TOTAL REVENUES
----------
----------
----------
----------
APPROPRIATONS:
Appropriations cannot be determined until the watershed studies are
complete. The study for Lomax should be completed in September.
The study for Little Cedar Bayou should be completed in December.
2
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EXHI BIT B
CITY OF LA PORTE
BROADWAY WIDENING PROJECT
PROJECT DESCRIPTION:
Allocated funds will be used to widen Broadway Boulevard to
accommodate four 1 ane thoroughfare traffi c with curbs, gutters and
drainage improvements. The target date for completion of this
project is August 1988.
ORIGINAL
REVENUES: ALLOCA TIONS 1987-1988
1985 General Bonds $749,000 $749,000
TOTAL REVENUES $749,000 $749,000
APPROPRIA TIONS:
Engineering $64,000 $64,000
Administrative/Professional Services 8,000 8,000
Concrete Testing 1,500 1,500
Construction 600,000 600,000
Sub-Total $673,500 $673,500
CONTINGENCY: $ 75,500 $ 75,500
TOTAL APPROPRIATIONS $749,000 $749,000
-------- --------
-------- --------
3
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EXHIBIT B
CITY OF LA PORTE
NORTHWEST PARK PROJECT
PROJECT DESCRIPTION:
Allocated funds will be used for the acqui si tion and development of
a new Northwest Park for the Lomax area. This new 23 acre community
park will offer a 25-meter swi mmi ng pool, two tenn is courts, a
basketball court, and various playground facilities. The target
date for completion of this project is July 1988.
ORIGINAL
REVENUES: ALLOCATIONS 1987-1988
1985 Bond Sale $900,000 $481 ,000
TOTAL REVENUES $900,000 $481,000
-------- --------
-------- --------
APPROPRIA TIONS:
Land and Legal $395,000 -0-
Master Plan Design 10,000 -0-
Architectural Services 49,500 35,500
General Construction 160,000 160,000
Sports 78,000 78,000
Pool 165,000 165,000
Picnic 17,800 17,800
Sub-Total $875,300 $456,300
CONTINGENCY: $ 24,700 $ 24,700
TOTAL APPROPRIATIONS $900,000 $481,000
-------- --------
-------- --------
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EXHIBIT B
CITY OF LA PORTE
FIRE TRAINING FACILITY
PROJECT DESCRIPTION:
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Allocated funds will be used to acquire land, construct utilities;
and employ architect to design the new Fire Training Facility. This
new facility will house a multi-storied burn building and a small
cottage burn building to simulate commercial and residential
.firefighting techniques. Additionally, the new facility will
provide classroom facilities, paved parking, storage areas, and a
pistol range for police firearm training and a home for the EMS
Division.
REVENUES :'
ORIGINAL
ALLOCATIONS
General Revenue Bonds
General Fund Transfer (EMS)*
FY 1987-1988 EMS Capital Outlay
TOTAL REVENUES
$450,000
-0-
-0-
$450,000
APPROPRIATIONS:
Land and Legal
Survey Services
Engineering Services
Design & Infrastructure Construction
$195,197
506
17,800
236,497
$450,000
TOTAL APPROPRIATONS
========
*General Fund Carry Over FY 1986-1987
5
1987-1988
$254,297
100,000
70,000
$424,297
$ -0-
-0-
17,800
406,497
$424,297
========
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REQUEST FOR CITY COUNCIL AGENDA ITEM
Agenda Date Requested:
November 9, 1987
Requested By: Louis Rigby
Department:
Purchasing
x Report
Resolution
Ordinance
Exhibits:
SUMMARY & RECOMMENDATION
The City of La Porte, in conjunction with the City of Bay town, San Jacinto
College and La Porte Independent School District, will hold its annual surplus
material/vehicle auction on December 12, 1987.
Rene' Bates Auctioneer, Inc., has furnished auction services to the City in the
past and their fee of ten percent (10%) of gross sales proceeds is unchanged
for the past two years.
Staff recommends City Council authorize City Manager to sign a professional
services contract with Rene' Bates Auctioneers, Inc. Although their fee will
not be known until after the auction, the money will be taken from sales proceeds
and no money will be expended from the 1987-88 budget.
Action Required by Council:
Authorize City Manager to sign professional services contract
Availability of Funds:
General Fund
Capital Improvement
Other
Water/Wastewater
General Revenue Sharing
Account Number:
Funds Available:
YES
NO
A
Council A enda
zr06 Ie 7
DAT I
RENE BRTES
AUCTIONEER S, INC.
RT.4-fficKINNEY. TEXRS
75069.214/548-9636
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October 28, 1987
Mr. Lewis Rigby
Purchasing Agent
Ci ty of La Porte
P. O. Box 1115
La Porte, Texas 77571
Re: Auction Contract and Agreement between the City of La Porte, Texas and Rene'
Bates Auctioneers, Inc.
Dear Mr. Rigby:
This letter is intended to outline qualifications and responsibilities of Rene' Bates
Auctioneers, Inc. and the responsibility of the City of La Porte, Texas for an auction
to be conducted for the City of La Porte on or about December 12, 1987 by Rene' Bates
Auctioneers, Inc.
I. SCOPE OF WORK
Rene' Bates Auctioneers, Inc. (hereinafter referred to as Auctioneer) shall fur-
nish auction services for the City of La Porte, Texas (hereinafter referred to as
Owner) in accordance with the following:
II. (XJALIFICTIONS
Rene' Bates has been a licensed auctioneer in the State of Texas since 1966.
Fran the inception of the Canpany, he has concentrated his efforts specializing
in the auctioneering of surplus vehicles, equiJlUent, police confiscated materials
and rr~scellaneous items for municipalities. In 1973, he was contracted by the
Uni ted States Postal Service to auction surplus fleet vehicles throughout the
Southern Region of the United States. Since 1980, he has expanded his expertise
to include selling surplus materials fran nuclear plant construction. The Auc-
tion Canpany currently conducts over one hundred auctions each year for cities,
counties, utility canpanies and large corporations throughout the State of Texas
and ll1 several other states.
Because of the many years in the auction industry, he has amassed a considerable
:railing list consisting of over 60,000 names of known buyers throughout the
United States and foreign countries of surplus vehicles, equipment and materials.
Advertising is critical to the success of any auction. In addition to a mailing
list containing over 60,000 names of known buyers of surplus property, he has on
staff two highly qualified individuals with many years advertising experience.
Their knowledge of layout of art work for printing of brochures and knowing how
to work with publications to assure the best positioning of ads in publications
and to assure discounted advertising rates wherever possible has proven
invaluable.
The following dOCtUllents are attached herewith, and made a part hereof to substan-
tiate Auctioneer's experience:
1. List of Auctions Conducted - 1987, 1986, 1985, 1984 and 1983
2. List of Client References
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Rene' Bates Auctioneers, Inc.
Auction Contract and Agreeoont
Ci ty of La Porte, Texas
Page 2
October 28, 1987
III. STANDARD AUCTICl'l SERVICES
1. EWIPMENT
Auctioneer shall furnish the necessary audio amplification equipnent to conduct the
auction, and shall furnish tape recorder to record the proceedings of the auction to as-
sure accurate bidding and buyer responsibilities.
Auctioneer shall furnish calculators and canputer for acco1.mting of auction proceedings.
Canputer reports, in triplicate, shall be turned over to CMner at the end of sale day, in-
Cluding copies of buyer's invoices, list of all buyers, list of buyer and amo1.mt paid for
each lot sold and other reports.
2. PERSa>lNEL
Auctioneer shall provide a Sales Preparation Manager to coordinate the auction preparation
and set-up. The Sale Preparation Manager shall work in conj1.mction with the CMner to su-
pervise the identification and lining-up of the sale items in the lOClSt efficient manner to
be sold.
Auctioneer shall conduct the auction with experienced auctioneers, ringmen, clerks,
registration personnel and canputer operators.
3 . ADVERTISlllG
Dependent upon merchandise available at auction, newspaper and trade journal publications
shall be determined. CMner's sale date shall be listed in all trade journal auction
calendars distributed to publications with mailing lists throughout the United States and
in sane international publications.
l".arketing shall ccmnence four weeks prior to the sale, and shall include:
a. Advertisements in periodiCals and trade journals (to be determined)
b. Newspaper advertisanents
c. Illustrated brochures mailed directly to approxi...'Ilately 7,500 buyers
d. Direct contact with lmown key buyers of similar material
e. Listing of this sale on all brochures mailed after the contract date has been set
4. BROCHURES
Brochures may include, but not be limited to, the following statements:
a. Owner reserves the right, at any time prior to ccmnencement of the auction, to add or
delete from the equipment that has been listed for sale.
b. Buyer is urged to inspect gcois prior to sale, and is aware of, and aclmowledges con-
dition of goods.
c. All iten>s are sold, "as is," "where is," and ''with all faults."
d. All bidders are required to register prior to the auction. The Auctioneer reserves
the right to reject the bid of anyone who is not a registered bidder.
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Rene' Bates Auctloneers, Inc.
Auction Contract and Agreement
City of La Porte, Texas
Page 3
October 28, 1987
2. At the time of sale, the Buyer's n~"e and prlce of item sold is announced by the
Auctioneer. No changes in price or quantity can be rrade by anyone but the Auctioneer,
and at that time only. In any dispute over price, quantity or betWe€Il bidders, the
Auctioneer reserves the right to settle any and all such disputes, and his decision
shall be final.
f. The itan(sl delivered pursuant to this bill of sale are sold "as is." Any reference
as to size, quality, capacity or grade is for identiflcation purposes only, and not a
warranty, eh-press or :L"plied, as to condltion, quality, capacity or performance
capability of the itQ,,(s). The City of La Porte (herelnafter referred to as Owner)
disc1a:L.s all express warranties, and any i-:-.plied warranty for a partlcular purpose or
arlsing out of any course of dealing or usage of trade. ~mer m~~es no representation
or warranty that the ltem(s) sold shall be dellvered free of the rightful cla:L" of any
third party by way of patent or trade.'T'ark infnngement, or the li};e. Buyer acknow-
ledges that Owner has provided it with the opportunity to inspect the item(s) before
purchasing them and that the buyer has or has not so insJ^.~ted the item(s) in its sole
discretion. Buyer acknowledges that its decision to purchase the item{s) is em:irely
its Ow'll and that it has not relied on any repr<:::sentation or warranty made by any
officer, employee or agent of Owner or Rene I Sates Auctioneers, Inc. in deciding to
purchase the ita..(s). Buyer assumes all risk and liability whatsoever resulting fram
the use of the item{s) sold hereunder, ;"nether singly or lli canbination with any other
property and whether or not used by buyer or any other person or entity, including
those who ;nay purchase any of such itc..(s) frem buyer, and buyer shall defend, indall-
nify and save harmless Owner fran and against any and all liability, losses, costs,
attorneys fees or expense of whatever nature or ch,u.-acter arising out of or occasioned
by any claim or any suit for damages on account of inJury to or the death of any claim
or any suit for darnages on accotmt of injury to or the death of any person or da"age
to any property resulting fran the use of the itail(s) sold hereunder, no rr.atter 'mo
may be using the itall(s) at i:Lile injury or daT.ages occur.
g. ]'~1 letters of credit must be addressed to the City of La Porte guaranteeing payrr:ent
at the auction, and shall be required upon registrat:on.
h. Pay:-nent in full for all ite.'l'.5 purchased must be :I.ade on day of sale.
5. REGISTRATICN
All bidders are required to register pr:.or tCl the auctior,. :':ethod of payment and letters
of cred:t lrill be accepted during tbe regis;:rati.on FOC€SS. The Bldder is required to
sign the "Bidder's Contract" foe. containing the teEns and conditions of the sale as
toUOHS:
a. Full payment shall be ;nade on date of sale before an'l buyer leaves the premises.
b. Tc:rns of Sale. Pay.:l€nt for purchases f:;llst be ...ade by cash, cashier's check or
personal!ca::pany check accanpanied by Letter at Credit fram your bank for this par-
::iC'ular sale and show proof of identity. No Let t"f of Crwi t for other sales will be
honored. All sales are subject to State Sales Tax laws. Bidder agrees not to stop
payment on chcc};s or disallml a sight draft.
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Rene' Bates Auctioneers, Inc.
Auction Contract and Agreernent
City of La Porte, Texas
Page ~
O:tober 28. 1987
c. No Warranty. The descriptions of items appearing in the Bt.:yer's Guide and in adver-
tising prior to this sale are believed to be correct. Nevertheless, neither those
descrlpnons nor any oral statements made by Owner or Auctioneer concerning any item
shall be constru<.>d as a warranty either express or i..llplied. Items are sold as is -
where is.
d. Recsipt. A Buyer will be furnished a receipt at the ti..1\€ of sale. This receipt must
be authenticated by the check-out mall before Buyer will be permitted to rerocr..e pur-
chases fram the sale premises.
e. Rem:r;al Date. ii"hile r:lerchandise becanes the full responsibility of Buyer at time of
purchase, and Buyer assu.r:leS all risk of loss and damage to property until removed fra:
sale pra...uses, Owner and Auctioneer agree that merchandise may remain on the sale
premises for a period of time fallowing the sale. The date by which all merchandise
must be removed iran the premises will be armounced by Auctioneer at the sale and/or
stated In '~ltlng L, the Buyer's Guide.
f. Adjust::,ellts. Errors in esti..uates of rr,erchandise inventory will be adjusted, but no
adJust:aent Wlll b-~ ;;-.ade after equipment has actually been re.1OVed fran the prernises or
after the r6r.',oval date announced by Auctioneer at the sale, whether or not the
property has been rer:xf,,"ed. All adjust.1\€nts must be authenticated by a check-out man.
g. Resale. Auctioneer reserves the nght to resell any property not paid for in full on
sale day. 111.0 Buyer shall be l-esponsible to Auctioneer for any expenses of resale and
collection and any darrages resulting from the resale.
h. Disputes Between Bidders. The Auctioneer shall designate the Purchaser after each
itc~ oi ~erchand1se is auctioned. If a dispute arises between two or more bidders,
the AUctIoneer reser;es the right to reopen bidding. His designation of the Buyer
shall be iirlal.
1. Injury and Darrage. Bidder acknowledges responsibility for any personal injury or
property da..age caused by Bidder or his agent and further agrees to hold Auctiol1eer
hamJ.ess ior any personal injury to hi':':self or his agents and any property damage in-
curred on sale pr'~lses.
Registration on day or sale shall begin two hours prior to start of auction.
6. CUPUTER OPERATICX1S
Auctloneer shall utilize its computer syster.. to promptly and accurately record the ac-
ti.vities of the auctlon. <Al the day prior to the auction, inventory shall be input i..'1to
the computer and categories assigned for rraterials irom different deparwuents, types of
uni ts, or (Mud'S otha" tracking needs. Boo}, .value can be input for percent of return
figures on each ita". Taxable items are noted for collection of applicable taxes. A
pri..'1tout of the inventory is us(~ for prepal"ation of the buyer's catalog and clerking
sh2€ts.
All infor:natlOn on t~je registranon form is input into the canputer, including ;nethod of
pay.':1e:1t, dollar arrount or letters of credit, ban};, bank officer, tax exempt nu.1Ibers and
driVers license nur.~r.
.
.
.......- -
Rene' Bates Auctioneers, Inc.
Auction Contract and Agreement
Ci ty of La Porte, Texas
Page 5
October 28, 1987
l{nen the auction begins, clerk sheets containing approximately eight (8) items per sheet
are "nm" to the canputer operator who inputs the bidder number and price for each lot.
Canputer totals are checked against calculator tapes for verification of balance of sale.
wilen the buyer is ready to payout, invoices are printed on three (or four) part paper,
depending up::>n distribution of paper work after the auction. One copy of the invoice is
retained by the cashier; two. copies of the invoice are given to the buyer - one to be
retained as his Bill of Sale, the other copy is given to the check-'out persormel to verify
merchandise lea~~g the lot.
At any time during the proceedings of the auction, data is available for dollar alrount
sold for any particular iten, total arrount sold, or buyer obligation. This capability al-
lows us to instantly car:pare limits of credit to buyer's activity, and notification of a
buyer can be :nade to rectify any potential over obligation.
After the last itan is sold, reports will be printed containing the following infcnnation:
a. List of all registrants
b. List of buyers only
c. Priced inventory - total sale
d. Priced inventory - specific category
"'. Priced inventory - specific buyers
f. Surrunary of monies collected, including sales tax
g. Client invoice
The total scope of the canputer program includes:
a. Input inventory
b. Prepare copy of buyers guide for printing
c. Print clerk sheets
d. Register buyers
e. Cashier and balance sale
f. Prepare priced inventory reports
g. Proouce invoices for each buyer
h. Sales recap
1. Sales tax collected
j. Registration print
k. Buyer print
1. Settle.c.ent sheets for each department
;n. Up-to-date account of sale in total, and by department (category)
n. Furnish percent of return on each lot sold
o. l1aintain and produce mail list
p. Keep rurming total of sale as each i tern is sold
q. Pinpoint what buyers are spending
r. Interface with mailing system
Auctioneer shall maintain the computer diskettes in its files in order to furnish sup-
ple.~ntal data to Owner.
7. PAYMEm
Owner shall provide a cashier and persormel to accept the proceeds of the sale and handle
transfer of titles.
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Rene' Bates .;'uctlOneers, Inc.
Auction Contract and Agreaucnt
City of La Porte, Texas
Page 5
October 23, 1937
Auctioneer shall not be responsible for, nor rccei";e CanmJ.SSlOn on, any lte.-ns not pald for
by buyers.
8. DEALER TAGS
Auctioneer shall provide temporaIY (paper) dealer tags, -;alid for twenty (20) days, to
buyers who need them.
9. rnrrcs
Auctioneer shall not (l) pay any corru"ission, fee or grant any rebate to; (2) accept 03...11
gifts or entertianment of significatn cost of value fran; nor (3) enter lilto any bUSiness
arrangement fram any officer, Q~pl~lee or agent of Owner other than as a r2preseatatl~e
respect17ely of ~ler.
10. INSURANCE
AuctlGne-er is insur2<i by Insurance Campany of North Pu"erica, ll-lA 0: :',.:xas; and !x!r..:c.-:i by
Western Surety Corupany. Auctioneer shall pro"vi.de Owner with insurance c2rnf:ccat'_s H: ac-
cordance with the following:
Auctioneer shall, during the tern. of this agreement, carry camprehenSl";e public li;011ity
insurance and property d&-nage insura.'1ce in the a"oOlU1t of not leSS than Fi-;e HWldred
Thousand dollars ($500,000) for injuries, including accide.r.'1tal death, for all perso;)S un
aCCOl.l11t of one occurrence. Property damage insurance will be furnish2<i in the a,-nount of
not less than Five Hundr2<i Thousand lXlllars ($500,000) for each occurrence, plus an
u"brella polic'i for One I'ullion lXlllars ($1,000,000). Auctioneer shall carry Worben 's
Campensation Insurance on all its employees, except for indep<=ndent contractors. The
abo.e :J€ntioned ll1Surance policies shall includ( a provision that said policies shall not
be canc-clled without insurer giving ten (10) days advance Hritten notice to Owner of SliCh
intention to terminate. In addition, all of the abo"..e poliCles shall carry o,rner as an
additional insured. Auctioneer shall defend, mde::'.nlfy and hold hal.;:-less Owner and ~ts
respective officers, agents and o~ployees from and agai11St all da,~aqcs, clai~, losses illld
demands, suits, judgements and costs, inclUding reasonable attorney's fees and expenses
arising in whole or ln part out of and resultwg li1 whole or In part fro:;; any action by
the Auctioneer, his agents or employees, and/or the ~'l1er, its officers, agents or
G":'lployees.
1 1
J.":".
LIffiTSE
Auctioneer holds a cm-rent Texas Auctioneer's License tlur.'.ber D:S-OlS-00E.r:'.44, and l3 cur-
rently licensed in several other states.
IV. FDRr1AT OF PROFDSAL
1. C(Y.1!-:ISSICN STRUCTURE:
Based on Gross Sales Proceeds, less sales tax collected:
Ten P2r Cent (10%)
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Rene' Bates Auctioneers, Inc.
Auction Contract and Agreement
City of La Porte, Texas
Page 7
O:tober 28, 1987
2. ADVERTISllJG BUIlGEI'
'!be advertising budget is dependent UlXln type of vehicles, equipnent and miscellaneous
items to be sold. All advertising expense shall be paid by Auctioneer with the exception
of any "legal" advertising required by the Owner.
3. Pmsa~IEL
Projected number of personnel required for the auction, to be paid by Auctioneer:
a. Two Auctioneers (also act as ringmen)
b. <Ale Ringrnan
c. Two Clerks
d. <Ale Carrputer Operator
Personnel requirements are dependent ulXln type and quantity of vehicles and miscellaneous
ita1S to be auctioned.
4. ~ & SUPPLIES
Auctioneer shall furnish the following:
a. Audio equipnent
b. Tape recorders
c. Carrputer
d. Calculator
e. Canputer SUpplies
f. Registration Fonns
g. Paper Dealer Tags
v. ~OFOWNER
1. List of merchandise to be sold
2. Copies of all titles and bills-of-sale of all vehicles and equiprr.~t for verification of
~e, model and serial nur.~rs at time of auction set-up
3. Security for merchandise fran placanent to removal
4. Auction site and parying facilities for attendees
5. Office equipped with electricity and air conditioning for computer operations
6. Perform minor repair serv~ce on equipment ill1d vehicles to increase sale value (optional).
7. Furnish cashier and clerical personnel for collection of ~Dney and title transfers
8. Perfonn all 1.9La], advertising
.
.
.......- -
Rene I Bates ~uctionef~s, Inc.
Auc~lon Contract illid ~~L~~n~
City of ~ Porte, T~~as
?age 8
CX:tober 28, 1937
VI . SITJT ...Emrr
1. Auctioneer sha.:.1 pro';ick Owner 'with 3. ccx;.plete,;.ccurate and ltenllzd record of the sale,
in mcecrical ordu.'" , by lot nU.7.b"r. C.y.nput2r reports, includ1ng all sale data and
registrastion for7:lS shall be pro'vided O..mer at end of sale day, nor.nally within tHO hours
aftex tile last it<:::1 bas ocen auctlon<:.->C..
2. Auctioneer shaL I;,';oi~e Owner for Cctm':lSSIOr. :.;a.."1led for auctioneer seniices wi thin twenty
(20) days after 3.UCt10r. date; such in'vOlC" to t.2 due illld payable upon receipt.
3. Auct:onc;er shall no~ bE; :cesJXlnsible for itcrr.s t!-lat de not sell, nor shall Owner je :'cs;on-
sible for AUCl tenser IS !2eS ror l1risold I t6":1S or unconsu;r.ated sales.
4. Copies of tape recordIngs of the entIre auctIon shall be turned over to Owner at the end
of each sale aay.
5. All rec:::rds, ca.::pULr data, statemer.ts f.",- ad'iertising expenses .11').c. taxes ccllected shall
be );ept 0:1 f:..12 for t...Tel-;", months 3.ft21" the saL by Auctioneer.
VII. Ca'J'I'RACI' AND AGRE:E:11rr-
THIS Lt.""TI'ER ~'fAY SERVE AS AN ~ucrIa! CCWRliCI' AIEl ~GRm-IDrr BE"IVEElJ THE CITY OF LA rom, TEXAS
AND P..E2iE' BATES AOCTrCNEERS, INC. THIS IS A RENEWABLE COIl'I'RACT AS ILHG AS BCYrn PARTIES ARE
AGREEriBLE AND TIE TER?'!S OF THE CCt.-rrRACT 00 lKYr CH.~NGE.
PLEASE EXECUTE AUD R.t.lUFl1 cm: COPY TO AtJ.....'j'IOI'rEER I S OFFICE FOR THEIR FILES
--_._------_._-~-----_.._---.-
CITY of I.J. fORTE, ;';::\AS
DATE /;' / / ,
/'/ /:~
~/), /}'l ~~/~il>(;
-~~----~--_._._--
REl.rt:'1 B~TI-S > LJI"!"fO ,;;-t:'t:'~. lJ' ,1('
:.u rt....... .n,..........&...U.'.L.i:...f\~f \'\...
';L"' '~~
/ Y /.~ ~, ~:1-
/ -- -----
D.liTE
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REQUEST FOR CITY COUNCIL AGENDA ITEM
Agenda Date Requested: 11-0g-87
Requested By: Joel H. Albrecht ~~artment: Community Deve.
XXX Report Resolution Ordinance
Exhibits:
(1) CHANGE ORDER NO.3
(2) MEMO FROM STAFF
(3) PICTURES
SUMMARY & RECOMMENDATION
During the course of construction of the La Porte's Bay
Forest Golf Course, it was recognized that in order to
prevent erosion around the rim of sand traps and further,
to prevent erosion and to arrest infiltration of grasses
around the 20 greens, it would be necessary to sod" the
periphery of these individual items. A request was made of
Carter Golf to provide a cost estimate to install the above.
The quotation received is as follows:
Item No. - Sod greens and tees
Item No.2 - Sod sand traps
TOTAL CHANGE ORDER NO.3
$5000.00
$2'500.00
$7500.00
Staff has reviewed this very important requirement and
highly recommends that Council approve this Change Order
No.3.
Action Required by Council:
Approve Change Order No.3
Availability of Funds:
General Fund
Capital Improvement
Other
Water/Wastewater
General Revenue Sharing
xx
Account Number: 00'5-800-800-'500
Funds Available: XX YES
NO
/;P61e7
DATE {
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3
)'1;0.
CHANGE ORDER
Dated "N,oy,e!ll,b,er, ~ -'. J.~87
86-5103
OWNER's Project No. . . , . . , , ., , , , , . , . . . . . . . .
ENGINEER's Project No.
Project.., ~? P9'ft~~~ .~qy' Fqr:e.s.t. ~pJf. ~9~r?~......"
,
N Carter Golf, Inc, '
CO, TRACTOR. , . . . . . . . . . , , , , . . , , , . . , . , . . , . . ., , , . . . , . , . , , . , . . . . . . , , , . . , , , . . , . . , . . . . . . , .
Contract For. Constr.uction .oJ. ~g.o.l.f. CDurse, . . . Contract Date ,.,. ~1?9!?? , . . . . . . . . , , , . . . . . ,
To:
, Carter Golf, Inc.
... ................ ...... ...... .... .. ...... ...... .. .... .... .. .. .... ...... .. ...... .. ........ ........ ............ ............ ...... .... .... .. ...... ..............
CONTRACTOR
. You are direct~.d to ~ake the changes noted below in the subject Contract:
. \
Charles Carter O~~ER
By ......,.,....,.".,...,.....,..",.,
D a t ed .,.......,..",...."... 19. . . " . . , ,
Nature of the Changes Provide and install grass sodding around the periphery of all sand
traps at a cost of $2,500.00
. Provide and install grass sodding around the periphery of all greens
and tees at a cost of $5,000.00
Total cost of all materials and labor to install not to exceed
$7,500.00.
Enclosures:
Memo from Staff
These changes result in'the following adjustment of Contract Plice and Contlact Time:
ContI act Price Prior to This Change Order
s ., .1.,.5.0.3.,000.,00. . , . . . . . ,
S ..",. .7,,5DD., 00. . . . . . . . ,
S .,.1. ,.5.1.0",5.0.0.. PO, , , , . . , , ,
Net (Increase) O(X<<XCXJX~ Resulting from this Change Older
CUlIent Contract Plice Including This Change Older
:\SPE.ACEC 1910-S.B (1978 Edition)
01 l/7S. \:'I,,'~,a! S"drt) of
PI (,ft'~, Illr.il r r.t ;:,.c-C'n
EXHIBIT NO, 1
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C(lntract Time Prior to This Chllnge Order .. . . . . . . . . . .15.0. Days. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Dan or Dale)
t\et (Increase) (Decrease) Resulting (rom This Change Order. . . . . . . . . . . . . . :-07. . . . . . . . . . . . . . . . . . . . . . . . . .
(Days)
Current Contract Time Including This Change Order. . . . T.Q .b.e. .r.e.cpn~j J ~9. Q.t . time .Qt' .~LlQ~ ~qnt.i.a.1. . . . . . .
camp 1 et ion. (Days or Due)
The Above Changes Are Approved:
.. .. .. .. .. .. .. .. .. .. .. .. .......... .. .. .. .... .. .. ........ .............. .... .... ..
Robert T. Herrer!NGINEER Ci ty Manager
.
By . '. . . . . . . . . . . . . . . . . . . . . . . . . . . . " . . . . . .
Date. . . . . . . . . . . . . . . . . . . . . . . . . . .. ,19.....
The Above Changes Are Accepted:
. . . . . . . . . . . . .. . . . . . . . . . . . . . . .Car.ter. .Golf., Inc
CONTRACTOR
By . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _
Date. . . . . . . . . . . . . . . . . . . . . . . . . . .. ,19... . .
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CITY OF LA PORTE
INTER-OFFICE MEMORANDUM
NOVEMBER 4, 1987
TO: Robert T. Herrera, City Manager
THRU: John Joerns, Asst. City Manager Developmen~.~ -
FROM: Joel H. Albrecht, Director of Community
SUBJECT: Sodding on Greens and Sand Traps
Our contractors at La Porte's Bay Forest Golf Course have reached the
point where they are sprigging grass for the fairways and the tee
boxes.
There is a problem that is created with the timing of the sprigging of
the golf course. The problem arises from the amount of water we are
using to get the grass started. This causes erosion of dirt material
from the areas immediately adjacent to the greens and the sand traps
into the greens and the sand traps. The problem caused by the erosion
is "hot spots" on the greens which will always be difficult to
maintain and infil tration of sand into the sand traps to solve this
problem. Staff has asked Carter Golf Inc. to give us a price for
placing a ring of solid sod around the periphery of all 20 greens and
the sand traps. The price for the greens is $5,000.00 and the price
for the sand traps it $2,500.00. The Staff does recommend approval of
these two (2) items, not to exceed a total of $7,500.00. Attached are
pictures showing the erosion and where we placed some test sodding,
which stopped the erosion.
Because Mr. Carter is out of town he has not signed the Change Order.
The Staff does request approval of the Change Order contingent on the
subsequent signature of Mr. Charles Carter.
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EROSION
SOD
EXHIBIT 3
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REQUEST FOR CITY COUNCIL AGENDA ITEM
Agenda Date ReqU~Vember 9. ~987
Requested By: S . :t:t- Department:
X
Exhibits:
Report
Resolution
Public Worko
Ordinance
Recommendation by purchasing Agent
Bid Tabulation Sheet
SUMMARY & RECOMMENDATION
Sealed bid #0213 for tires were received from five (5) suppliers.
Suppliers were asked to submit firm pricing on various size .tires.
The overall low bid meeting specifications was received from Goodyear
Tire and Service Center.
Action Required by Council:
Award contract to low bidder meeting specifications, Goodyear Tire
and Service Center.
Availability of Funds:
General Fund
Capital Improvement
Other (Internal Services 024)
Water/Wastewater
General Revenue Sharing
x
Account Number:
Funds Available: .-.X- YES
NO
for Cit Council A enda
)
t T. Herrera
Manager
!(o6k7
DATE {
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CITY OF LA PORTE
INTER-OFFICE MEMORANDUM
TO:
FROM:
SUBJECT:
DATE:
Steve Gillett - Director
Louis Rigby - Purchasing
Sealed Bid #0213- Tires
October 26,1987
::~~kS
,.
Advertised, sealed bids #0213 for tires were opened and read in Council chambers on
October 19,1987. Bid requests were mailed to nine suppliers with the following five
returning bids: (1) La Porte Tire Center, (2) Shults Brothers, (3) General Tire Service
(4) Firestone, and (5) Goodyear.
Suppliers were asked to submit firm pricing on various size tires. Low overall bid
meeting specifications was from Goodyear Commercial Tire and Service Center. The
second low bid that included all items was submitted by Shults Brothers Tire and Auto Inc.
Please submit your recommendation along with an agenda request form and all attachments
by the prescribed time preceding the next Council meeting. If there is a need to delay
bringing the bid to Council, please notify me.
xc: Dick Root - Shop Superintendent
Attachment: Bid Tabulation
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SEALED BID 110213
Tires La Porte
Shults General Firestone Goodyear Last
Tire Center Brothers Tire Servic Year
Extended Price -
I. Passenger Vehicle $10? 1f\ $106.40 $106.28 $104 "i? $96.40 $96.4C
II. Police Snecial Radi.<ll 23,094.00 20,199.00 22.350.00 20 15"i.50 ?1 or:;? r:;o 21,052.
III. Pick "UD 2,520.66 3,016.74 2.728.00 2.672.22 2.697.48 2,604.
IV. Tl"'lIt"1rnTllh" Tvnp Mllrt ~"";T' 17,890.92 19.075.22 1Q.f.OA Q? 19.626.02 1Q 1QQ ?R 19,596.
-.
V. Truck-Tubeless Mud Grin l' r:;Ar:; % 1.704.00 NR NR 1 QOl &;Q 1,820.
VI. Truck-Conventional 6,917.54 6,992.07 *6,304.73 6.757.98 6.367 R"i 6.432.
VII. Grader o' NB 3,270.00 3,242.40 3,588.60 3,346.44 3,346.
VIII. Farm Tractor NB 1. 050. 00 * 278.80 883.34 748.68 748.
IX. Truck-Street Tubeless NB 7.929.94 6.374.30 8.417.22 6.454.66 6,520.
Total -I-IV. 52.111. 94 51.093.43 51.097.93 49.316.24 51.415.19
Total - All Items 63.343.37 61. 964.97
Total-Like Items 60,993.43 61. 335. 48 59.355.77 62.217.'
*did not bid 1 item
SEALED BID #0213
Tires
I. Passenger Vehicle
A G78-14
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La Porte Shults
Tire Center Brothers
25.59
II. Police Special Radial-S3
A. P225/70 HR 15 Black
B. P215/70 HR 15 Black
III. Pick-Up
A. 700-15 Street
B. 700-15 Mud
C. 750-16 Street
D. 750-16 Mud
E. 8.00-16.5 Street
F. 8~ 75-16.5 Street
G. 8.75-16.5 Mud
51. 79
50.38
33.16
34.94
43.19
44.12
36.29
39.29
40.24
~A. 8.25- x 20
IV. Truck-Tube Tvne MlIc'l r.ri n
B. 9.00 x 20 EI0
C. 10.00 x 20 F12
D. 11.00 x 20
86.07
94.62
122.32
111. Q'l
V. Truck- Tubeless Mud Grip
A. 11.00 x 22.5 - F12
132.13
26.60
Goodvear
45.33
44.00
35.70
39.00
43.04
47.45
48.79
50.79
52.64
96.87
121.00
126.00
l'lQ 00
142.00
General
Tire
Service
26.57
51. 08
46.84
33.19
42.09
37.97
51. 24
40.63
43.16
45.69
92.35
103.33
134.18
147.77
NB
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Firestone
Goodyear Last
Year
26.13
24.10
24.10
45.31
47.37
47.37
43.75
45.61
45.61
33.39
32.76
33.22
43.71 37.45 33.22
33.28 42.15~~ 37.8~
54.15 42.91___1 38.24
33.67 41~- 1 41.1
38.29 A3.16__ t~3.J'
4R. 35_ ~~::5~~1_-~45~~
.c__~~~~I_~~~~ I~__
_ __8~.()~__L 89.73 1 90.64
I ~101.35-1 -102.28 G3.33
1_ .J3A__59__~ \..1]2.83 _ 1 134_.J8
-1- 153.;~-1.~~~
~
J_ ...
J 150.14 l~1.6
NB
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La Porte Shults General Firestone Goodyear Last
Tire Center Brothers Tire Servi e Year
VI Truck - Conventional
A. 7.50 x 20 58.65 84.69 NB 57.74 62.56 1\3 20
B. 8.25 x 20 83.13 87.26 86.19 80.20 76.36 77.14
c. 9.00 x 20 E10 92.28 97.55 98.99 95.54 91. 53 Q2.46
D. 10.00 x 20 F12 114.58 114.15 112.67 125.01 121. 59 122.8:
E. 14.80 x R 20 NB 352.00 264.86 289.28 234.85 237.2,
VII. Grader - Tube Tvoe"Lug Tread
A. 14.00 x 24 -10 Plyrate NB 225.00 207.53 235.72 21QQ() ?1 Q Q(
B. 17.5 x 25 - 12 Plvrate NB 320.00 332.87 362.38 ~~7_74 ~~7. 7,
VIII Farm Tractor - 'T'l1hO 'T'UT'l1:>
A. 14.9 x 24 6 Plv TlIrf '1''''0''1.:1 N'R 175.00 NB 159.74 139.32 139.3:
B. 14.9 x 28 Plyrate NB 175.00 NB 122.19 95.70 95.7(
IX Truck- Sf"rpPf" 'T'lIhPlOQQ
A. 15 x 22.5 NB 269.39 201. 75 296.77 221. 51 223. :
B. 16.5 x 22.5 NB 315.68 258.19 331.83 2<;1; ?R '<;R I
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REQUEST FOR CITY COUNCIL AGENDA ITEM
Agenda Date Requested:
November 9. 1987
Requested By: Louis Rigby
Department:
Purchasing
x Report
Resolution
Ordinance
Exhibits:
SUMMARY & RECOMMENDATION
Sealed bids #0214 for the lease purchase of a copy machine for City Hall were
opened and read on October 26, 1987. There was apparent confusion on the bidders'
part as to the specifications required by the City. Two vendors bid two machines
each, one vendor bid a per month lease fee but no actual machine cost, and one
bidder submitted a bid for financing only.
Staff recommends all bids be rejected and that new bid packages be sent out with
more specific requirements.
Action Required by Council:
Reject all sealed bids #0214
Availability of Funds:
General Fund
Capital Improvement
Other
Water/Wastewater
General Revenue Sharing
Account Number:
Funds Available:
YES
NO
Council A enda
e . Herrera
t. Manager
JI/OG!B7
{ t
DATE