HomeMy WebLinkAboutResolution No. 2000-13 RESOLUTION NO. R2 0 0 0-13
A RESOLUTION OF THE CITY OF FRIENDSWOOD, TEXAS,
APPROVING AND AUTHORIZING AN EXCESS REBATE
WATER CAPACITY PURCHASE AND SALE AGREEMENT
BETWEEN THE LA PORTE AREA WATER AUTHORITY AND
THE CITY OF FRIENDSWOOD FOR THE PURCHASE OF UP TO
1.5 MGD OF THE INTERIM CAPACITY AT THE SOUTHEAST
WATER PURIFICATION PLANT; MAKING VARIOUS
FINDINGS AND PROVISIONS RELATING TO THE SUBJECT;
FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW;
AND PROVIDING AND EFFECTIVE DATE HEREOF.
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NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FRIENDSWOOD, STATE OF TEXAS:
Section 1. The City Council hereby approves and authorizes the contract, for
an excess rebate water capacity purchase and sale agreement between the La Porte Area
Water Authority and the City of Friendswood for the purchase of up to 1.5 mgd of the
interim capacity at the Southeast Water Purification Plant, in substantially the form as
shown in the document which is attached hereto and incorporated herein by this
reference. The Presiding Officer is hereby authorized to execute such document and all
related documents on behalf of the City of Friendswood. The Secretary is hereby
authorized to attest to all such signatures and to affix to all such documents.
Section 2. The City Council officially finds, determines, recites and declares
that a sufficient written notice of the date, hour, place and subject of this meeting of the
City Council was posted at a place convenient to the public at City Hall, 910 South
Friendswood Drive, Friendswood, Texas 77546, on February 21, 2000, for the time
required by iaw preceding this meeting, as required by the Open Meetings Law, Chapter
551, Texas Government Code; and that this meeting has been open to the public as
requires by law at all times during which this Resolution and the subject mater 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, and it is so ordered.
PASSED AND APPROVED this 2lstday of February, 2000.
c
Harold L. Whitaker
Mayor
ATTEST:
c
s
De oris McKenzie, T C
City Secretary
Water Purification Plant
Page 2
DCCESS REBATE WATER CAPACITY
PURCHASE AND SALE AGREEMENT
STATE OF TEXAS {
{
COUNTY OF HARRIS {
This Agreement, made and entered as of the 21st day of
February, 2000, between the LA PORTE AREA WATER AUTHORITY, a
conservation and reclamation district authorized and created under
Article XVI, Section 59 of the Texas Constitution, and acting under
Chapters 49 and 54, Texas Water Code, as amended, hereinafter
"Seller", and the CITY OF FRIENDSWOOD, a political subdivision of
the State of Texas, hereinafter referred to as "Purchaser" .
W I T N E S S E T H•
WHEREAS, the City of Houston is planning an interim expansion of
the Southeast Water Purification Plant (the "Houston Plant") from
80 Million Gallons per Day (MGD) to 120 MGD;
WHEREAS, the La Porte Area Water Authority (the "Seller") , as a co-
owner of the Houston Plant, has the right to purchase up to 3 . 6 MGD
of the Interim Capacity Expansion;
WHEREAS, Seller desires to sell 3 MGD of the Interim Capacity
Expansion in the Houston Plant which the Seller has the right to
purchase;
WHEREAS, Purchaser desires to acquire 1 MGD of such right to
purchase water capacity; and
WHEREAS, parties desire that such purchase, sale and transfer of
Seller's interest (as hereinafter defined) to Purchaser shall be
effective as of the Transfer Date (as hereinafter defined) .
NOW THEREFORE IN CONSIDERATION OF PREMISES, and for good and
valuable consideration, Seller and Purchaser agree as follows:
I.
In addition to the defined terms set out above, the following
defined terms are assigned the meanings set forth below:
"Down Payment" shall mean the $340, 000. 00 down payment, which
is equivalent to forty percent (40%) of the Purchase Price, for
Seller's interest, to be paid by Purchaser to Seller on or before
2 : 00 p.m. on Tuesday, February 29, 2000.
"Purchase Price" shall mean the amount of $850, 000. 00.
"Seller's Interest" shall mean La Porte Area Water Authority's
excess rebate water capacity in the amount shown on Exhibit "A"
attached hereto.
"Transfer Date" shall mean Friday, June 30, 2000, at 2 : 00
p.m. , at which time the final balance of the Purchase Price shall
be due and payable, unless deferred to no later than October 31,
2000, at 2 : 00 p.m. , in which case the balance of the Purchase Price
shall bear interest at the rate of five and one-half percent (5.5%)
per annum, from and after June 30, 2000.
II
(a) Purchaser agrees to pay to Seller the Down Payment not
later than 2 :00 p.m. on Tuesday, February 29, 2000. Purchaser
agrees to pay the balance of the Purchase Price on or before June
30, 2000. If the balance of the Purchase Price is not paid on June
30, 2000, said balance shall accrue interest at the rate of five
and one-half percent (5.5%) per annum from and after June 30, 2000,
provided, in any event, the entire balance of the Purchase Price,
together with accrued interest thereon, shall be due and payable no
later than Tuesday, October 31, 2000.
(b) Seller and Purchaser each hereby represent and warrant
that it has full right, power, and authority to enter into this
Agreement and it is the legal, valid, and binding obligation of
such party.
(c) On or before the Transfer Date, upon or after payment by
Purchaser of the full amount of the Purchase Price to Seller,
Seller shall deliver to Purchaser, with a copy to the City of
Houston, the executed Conveyance of Interest substantially in the
form attached hereto as Exhibit "A". The dated date of such
Conveyance of Interest shall be the Transfer Date.
III.
The following shall be considered a default under this
Agreement:
(a) the failure of Purchaser to pay the Down Payment to
Seller on or before the first payment date;
(b) the failure of Purchaser to pay the balance of the
Purchase Price to Seller as set forth in II (a) hereof;
(c) the failure of Purchaser to perform and observe in a
timely manner any of the covenants contained in this Agreement; or
2
(d) the Transfer Date has not occurred and payment in full
received, together with accrued interest, if any, by October 31,
2000.
The following shall be considered remedies upon default:
(a) It is not intended hereby to specify (and this Agreement
shall not be construed as specifying) an exclusive remedy for any
default, but all remedies existing at law or in equity (including
specific performance) may be availed of by either party and shall
be cumulative.
(b) Seller may declare Purchaser's Down Payment forfeited,
and Seller may declare this contract null and void.
IV.
Seller or Purchaser may terminate this Agreement by notice in
writing if the City of Houston elects not to construct the
expansion contemplated in the "Cost Sharing Agreement Southeast
Water Purification Plant" (restated and amended) . If either party
terminates this Agreement pursuant to this Article IV, Seller shall
immediately refund the Down Payment paid by Purchaser plus accrued
interest thereon at five and one-half percent (5.5%) per annum
calculated on a year of 360 days from date of down payment to date
of refund.
V.
Addresses and Notice. Unless otherwise provided in this
Agreement, any notice, communication, request, reply, or advice
(herein severally and collectively, for convenience, called
"Notice") herein provided or permitted to be given, made, or
accepted by either party to the other must be in writing and may be
given or be served by (i) depositing the same in the United States
mail postpaid and registered or certified and addressed to the
party to be notified, with return receipt requested, (ii) by
delivering the same to an officer of such party, or (iii) by
overnight delivery, receipt of which is confirmed by the sender by
prepaid telegram, when appropriate, addressed to the party to be
notified. Notice shall be conclusively deemed to be effective upon
receipt. Notice given in any other manner shall be effective only
when received by the party to be notified. For the purpose of
Notice, the addresses of the parties shall, until changed as
hereinafter provided, be as follows:
If to Seller: La Porte Area Water Authority
P.O. Box 1115
La Porte, TX 77572
Attn: Robert T. Herrera
General Manager
3
If to Purchaser: City of Friendswood
910 South Friendswood Drive
Friendswood, TX 77546-4856
Attn: Ronald E. Cox
City Manager
The parties shall have the right from time to time and at any
time to change their respective addresses and each shall have the
right to specify as its address any other address by providing at
least five (5) days written notice to the other party.
VI.
Modification. This Agreement shall be subject to change or
modification only with the mutual written consent of the parties.
Assignabilitv. This Agreement shall not be assignable by any
party without the prior written consent of the other party hereto.
No third party shall be a beneficiary of this Agreement except
permitted assigns.
Severabilitv. The provisions of this Agreement are severable,
and if any provision or part of this Agreement or the application
thereof to any person or circumstance shall ever be held by any
court or competent jurisdiction to be invalid or unconstitutional
for any reason, the remainder of this Agreement and the application
of such provision or part of this Agreement to other persons or
circumstances shall not be affected thereby.
Exhibits. The exhibits attached hereto are incorporated
herein for all purposes.
Merger. This Agreement constitutes the entire agreement
between the parties relative to the subject matter hereof. There
have been and are no agreements, covenants, representations or
warranties between the parties other than those expressly stated
herein or expressly provided for herein.
Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be, and shall be
deemed to be an original. Al1 such counterparts shall constitute
but one and the same instrument.
IN WITNESS WHEREOF, the parties have executed the Agreement as
of the date and year first written in this Agreement.
SELLER:
LA PORTE AREA WATER AUTHORITY
By:
Pres ' ent
4
ATTEST:
�
Secretary
THE FOREGOING AGREEMENT HAS BEEN
APPROVED BY THE CITY COUNCIL OF
THE CITY OF LA PORTE, TEXAS, BY
ITS ORDINANCE NO. 2000- 2 3g� ,
PASSED AND APPROVED �2• }/ , 2000
CIT OF LA PORTE
By: �.-
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N rman alone
•�;ayAr
ATTEST:
Ma � a A. Gil ett
City Secretary
�_�.�
APP,�OVE 'AS TO FORM'
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K ox W. Askins
City Attorney
PURCHASER:
CITY OF FRIENDSWOOD
By: Harol . Wh' a
Name•
Title. YOR
A T T•
C'ty Secretary
APPROVED AS TO FORM:
Kim Mickelson
Attorney
5
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EXHIBIT "A"
CONVEYANCE OF INTEREST
For value received, La Porte Area Water Authority ("Seller") ,
pursuant to that certain Excess Rebate Water Capacity Purchase and
Sale Agreement (the "Sale Agreement") , dated as of February 21,
2000, between Seller and Purchaser, hereby conveys to Purchaser all
of Seller's interest (as defined in the Excess Rebate Water
Capacity Purchase and Sale Agreement) , in the Southeast Plant.
Seller's interest being conveyed hereunder is 1 MGD of
Seller's interest of Excess Rebate Water Capacity in the Southeast
Plant.
LA PORTE AREA WATER AUTHORITY
By:
Presid nt
ATTES :
Sec etary
lo -3D - oo
Dated: (Transfer Date)
PURCHASER:
CITY OF FRIENDSWOOD
By: ,
N e: Harnl t� T,_ Whi t-aker
Title• T�avor
ATTEST:
+ . ��D
C ty Secreta y