HomeMy WebLinkAboutResolution No. 2011-32 R�SOLUTION NO. R2011-32
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF FRIENDSWOOD, TEXAS, APPROVING
AN AGREEMENT FOR DEFENSE AND/OR
ASSERTION OF CLAIMS BY AND AMONG THE
CITY OF FRIENDSWOOD, TEXAS, THE CITY OF
PASADENDA, TEXAS AND VARIOUS OTH�R
POLITICAL SUBDIVISIONS; AND REPEALING
ALL OTHER RESOLUTIONS INCONSISTENT OR
IN CONFLICT HEREWITH.
�: * x . � x * � • *
Whereas, on or about Februaiy 9, 2000, the cities of Friendswood, Texas and Pasadena,
Texas and various other political subdivisions ("Co-Participants") entered into that certain "Cost
Sharing Agreement Southeast Water Purification Plant (Restated and Amended)" with the City
of Houston, as amended by that certain "Amendment to Cost Sharing Agreement Southeast
Water Purification Plant (Restated and Amended)" dated on or about August 21, 2007, by and
among the same parties (collectively,the "Cost Sharing AgreemenY'); and
Wliereas, the Cost Sharing Agreement provides a mechanism for the City of Houston, as
Managing Participant, to audit the operations of the Southeast Water Purification Plant on an
annual basis and to assess "tiue-up" costs against the Co-Participants on a pro-rata basis
dependent on the respective usage of the Co-Pai�ticipants; and
Whereas, the City of Houston has assessed true-up costs against the Co-Participants for,
among other things, operation and maintenance expenses for Fiscal Years 2009 and 2010, which
costs are disputed and have been the subject of ongoing discussions by and among the Co-
Participants; and I
I
I
I
Whereas, the Co-Participants wish to pool their resources in an effort to defend and/or
assert claims against the City of Houston and in order that appropriate legal and financial
representation may be secured to advise and represent the interests of the Co-Participants;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FRIENDSWOOD, TEXAS:
Section 1. The City Council of the City of Friendswood, Texas, hereby authorizes the
Mayor to enter into an Agreement for Defense and/or Asseirtion of Claims. A tiue and coirect
copy of the proposed Agreement for Defense and/or Assei�tion of Claims is attached hereto as
Exhibit"A"and made a part hereof for all puiposes.
Section 2. The City Council of the City of Friendswood, Texas hereby further
resolves that in no event shall the appropriation of funds by the City of Friendswood in
connection with the Agreement for Defense and/or Assertion of Claims exceed the sum of
$50,000.00 without fizrther approval of the City Council.
Section 3. All resolutions or parts of resolutions inconsistent or in conflict herewith
are, to the extent of such inconsistency or conflict, hereby repealed.
PASSED,APPROVED,AND RESOLVED this the 17th day of October,2011.
i J. H. mi i
Mayor
ATTEST: p p�1�,y�y
oF s�
a ,
���� � �
Melinda Welsh, TRMC � �
City Secretary �+j, Py
qp� �F ���
R2011-32 2
AGREENIENT FOR DEFENSE AND/OR ASSERTION OF CLAI��IS
This "Agreement for Defense and/or Assertion of Claims" ( the "AgreemenP') is made and
entered into by and among the City of Pasadena, a body corporate and politic under the Iaws of the
State of Texas, hereinafter catled "Pasadena" and the Co-Participants signing below relating to
certain claims by the City of Houston against Pasadena and the Co-Participants and by Pasadena
and the Co-Participants against the City of Houston "Houston" relating to certain actions by
Houston as "Managing ParticipanY' as defined in that certain "Cost Sharing Agreement Southeast
Water Purification Plant (Restated and Amended)" dated on or about February 9, 2000 between the
City of I[ouston and other parties, as amended by that certain "Amendment to Cost Sharing
Agreement Southeast W'ater Purification Plant (Restated and Amended)" dated on or abou[ August
21, 2007, by and among the same parties (collectively, the "Cost Sharing AgreemenP') affecting
Pasadena and the Co-Participants, hereinlfter called the "Claims." Collectively, Pasadena and the
Co-Participants are referred to herein as the "Participants." The Claims include rights asserted by
the Participants that they do not o�ve certain alleged "true-up" amounts submitted, or to be
submitted, by Houston to the Co-Participants for payments due for Fiscal Years 2007, 2008, 2009
and 2010 imder the Cost Sharing Agreement and efforts by the Participants to replace Houston as
the operator of the Southeast Water Purification Plant (the "PIanP') which is the subject of the Cost
Sharing Agreement.
RECITALS
It is to the mutual benefit of Pasadena and Co-Pacticipants to defend against claims being ,
asserted by Houston against Pasadena and Co-Participants and to assert the claims against Houston. �
All costs attributable to the defense and/or assertion of the Claims, including expenses of
at[orneys, engineers, accountants, financial advisors and other professionals retained to represent
the Co-Participants wil( sometimes be called the "Claims Expenses." The Parties agree to pay their
proportionate share of the Claims Expenses based upon their respective percentages of the FY 2009
True Up amount as set forth in Exhibit A hereto, and subject to the limitations set forth in, this
Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants, agreements and
benefits to the parties herein named, it is agreed as follows:
TF,Ri�IS
After execution of this Agreement, Pasadena may endeavor to engage attorneys, financial advisors,
accountants and engineers to defend and/or assert the Claims on behalf of the Participants. �
Pasadena will submit to the Co-Participants its recommendations of attorneys, financial advisors,
accountants and engineers to represent the Participants in asserting the Claims, along with any
proposed engagement agreements. If a majority of the PaKticipants notify Pasadena in writina of
their refusal to accept the recommended attorneys, financial advisors, accountants or engineers
within ten (t0) days thereafter, then Pasadena shall seek other actorneys, financial advisors,
accotmtants and engineers as appropriate under the same time frames. If a majority of the
Participants do not file such objections, Pasadena shall be authorized to retain the attorneys,
financial advisors, accountants and engineers to represent the Participants in defending and/or
asserting the Claims.
EXHIBIT"1"
Thereafter, Pasadena shall coordinate the attorneys, financial advisors, accountants and engineers
in defending and/or asserting the Claims. Pasadena cvill:
a. transmit to the Co-Participants copies of any invoices received from the attorneys,
financial advisors, accountants and engineers after receipt along with a breakdown of
how much of such invoice(s) each Participant owes;
b. transmit reports received from attorneys, financial advisors, accountants and engineers
to the Co-Participants after receipt copies of relevant documents provided by the
attorneys, financial advisors, accountants and engineers in defending and/or asserting
the Claims; and
c. transmit to the Co-Participants stahis reports of the defense andlor assertion of the
Claims as received.
Co-Participants will:
a. transmit to Pasadena within thirty (30) days of receipt of copies of any invoices
received from the attorneys, financial advisors, accountants and engineers along '
�aith the breakdown of how much each Participant owes, a check made payable to
"City of Pasadena" in an amount equal to the Co-Participant's share of such
invoices based on the percentages sho�vn in Exhibit A; and
b. otherwise cooperate with Pasadena, the other Co-Participants and the attorneys,
financial advisors, accountants and engineers in defending and/or asserting the
Claims.
Payments by the Co-Participants to Pasadena hereunder shall not be used hy Pasadena for any
purpose otherthan paying Claims related Expenses.
The Co-Participants hereby appoint Clear Lake City Water Authority, Gulf Coast Water Authority
and City of Friendswood as an advisoiy committee to consult regularly with Pasadena to advise
and assist Pasadena in performing its obligations hereunder. The make-up of the appointees maybe
changed by the majority vote of the Co-Participants. Pasadena agrees to solicit such advice and
assistance fi-om such advisory committee.
F,ither Pasadena or a Co-Participant may withdraw as a party to this Agreement for any reason by
written notice to the other parties. After such withdrawal, Pasadena shall return to each �
withdrawing Co-Participant any funds which the Co-Participant has paid to Pasadena hereunder
unless the same are needed to pay such Co-Participant's share of any Claims Expenses incurred
prior to such withdrawal; provided, however, if a Co-Participant has not yet �aid its obligations to
Pasadena hereunder for such previously incurred Claims Expenses, Pasadena shall notify the Co-
Participant of the amount of Claims Expenses incutred prior to such withdrawal, and the Co-
Participant shall deliver its check to Pasadena in an amount equal to the co-Participant's share of
such Claims Expenses incurred prior to withdra�val within thirty days after notice of same. The
proportionate shares of each of the remaining Co-Participants shall be redivided without the �
withdrawn Co-Participant as demonstrated in the example included in Exhibit A. Pasadena and the ,
remaining Co-Participants may continue with the defense and/or assertion of the Claims on behatf
of such remaining parties.
I
If the �aithdrawn Co-Participant is Pasadena, a new managing Participant shall be appointed by the
advisoiy committee, and any withdrawn advisoty committee member shall be replaced by the
remaining advisory committee members.
No party hereto shall make, in whole or in part, any assignment of this agreement or any obligation
hereunder without the prior written consent of the other parties hereto.
All notices required or permitted hereunder shall be in writing and shall be deemed delivered when
actually received or, if earlier, on the thiid day followina deposit in a United States Postal Service
post office or receptacle with proper postage affixed (certified mail, return receipt requested)
addressed to the respective other party at the address prescribed herein belo�v or at such other
address as the other party may have theretofore prescribed by notice to the sending party.
Address for notice shall be as follorvs: '
CITY
City of Pasadena
P.O. Box 672
Pasaden�, Texas 77501
Attention: Director of Public �dorks
This instrument contains the entire agreement between the parties relating to the rights herein
granted and the obligations herein assumed. Any modifications concerning this instrument shall be I
of no force and effect excepting a subsequent modification in writing, approved by the governing �
bodies and signed by atl parties hereto. '
IN TESTIMONY OF WHICH, this agreement, in duplicate coimterparts, each having equal
force and effect of an original, has been executed on behalf of the parties hereto as follows, to-wit:
CITY OF PASADENA '
� 7
By� ' !�l �� By
City Secretary ayor�
. N N a � � � � � m o 0
� � m h I� h I� m N o 0
. U N v^�i � � ,-�i ,�-i w m �°n °o
� in m a � a v oo N o
� v ni �i a �-i cr a vi c�i o
v � N V? � � vT t/T t/} � O
✓ � N
C �
v .� a
v v, m
'C N V�
*' �n m
r-
O m �i
� r� m
� � N o o\° \ o � \ o° o o\° o
\
� ;,; o 0 3 � m a ^ a v a �a" °o °o
`o o ° ° z r"'v m a � v v vi � o �
0 0
c ,� o� o�
p N x x
C � o o �
L �
v m
3 � � M �
� •fl" N �' 3 a° o
� �� •� N N
� 'i N N � m m
°' � u° u° t
.0 ' � � �
�' O vi in j
�p U '> '> 7
a — v v
�a s z
O 3
U 'o �^ ^�
p > GJ m N ++
N M N
U � (mp II II U O O O O O O O O � O
� � � N � O O O O O O p p O O
L
� � V x x 'bp v�i vNi v� vCOt v> � vai v°'t � °o
L v C m m O `h
Y IO � r'I C-I
� � � � � �.
u •m o
+� U ,L �y
� 7 N N
0
� v O � m m � O
� � X C aci w �° o � o o a o \ O
-o u +��' U m `w 'hq � N m oo m m a m m o � ',.
� a+ � 2 a 'i rl
� �
� o � F- Z Z
° � 3
a �- m x
�
`m c�o .�c m � �
`n � '= '+ -
3 C - Q U J
Q C � V Q U' CJ
�"� � �
m t V a U � « -�'
°x' ~ u 3 C� �' ° ', ~
� 3 d � � s `= u, o
a, m Z � � ° t �' � �
t � ai a - � .- a g I
m L � ° � ° � ¢' � �
.y
Q '�'' C VI (0 ✓ Y � C �
Y Y � Y
m 3
� ' °: .�- ° -o ;
07 O � Q V �-'
,F, � O � V OJ � ai o � > > O � c
� ~ � p�, y Q' p m � N U S N � � U
+�+ � N � u � � � N L � � � I
x 0 � Q� •d K J U O! O" � � N N V�j �''
�'�"� z U Z � W (J �J (� J = VI � 4. a � �
I
CITY OF PASADENA
ohnny Isb I, Mayo
ta . obin Green, i tor of Public Works
1211 Southmore Ave.
Pasadena,TX 77502
713-475-7836
�
. I
�
CITY OF FRIENDSWOOD
C�� (; �
�
David 1.H. mi i, Mayor
Contact: Kaz Hamidian, Director of Public Works
1306 Deepwood
Friendswood,TX 77546
281-996-3383
ATTEST:
/�J����--�'°' ""'� �
Melinda Sdelsh, TRMC
City Secretary OQ �����las,�
� O
' V a
� *
s�, Py
�ar� oF t��- ,
I
�