HomeMy WebLinkAbout09-27-84-19 - Resolution - 09/27/1984RESOLUTION NO.
09-27-84-19
RESOLUTION AUTHORIZING THE CITY MANAGER TO SIGN A LEASE
IT WITH THE WHALEN CORPORATION.
WHEREAS, on the 27th day of September, 1984, the City
1 met and considered the Lease AGreement with the Whalen
ion, attached hereto.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
!~OLLEGE STATION, TEXAS, THAT:
After consideration of the Lease AGreement with the
[Whalen Corporation, the City Council hereby authorizes the City
i'~anager to execute the agreement attached hereto.
PASSED AND APPROVED this 27th day of September, 1984.
JONES
ITY SECRE
MAYOR 7' ~{A~TER
00 588
LFASE AG~I~T
THE STATE 0F TEXAS )
)
COUNTY OF BRAZOS )
KNOW ALL Mt~ BY THESE PRF_St~rrS
WHEREAS, the City of College Station, Texas, acting by and through
its Ma~vor and City Council and WHATRN CORPORATION , A Texas
Corporation, have herebefore on the 7th da~ of NAY , A.D. 1984,
entered into a contract for elevated water storage and the delivery of
water therefrom; and
WHEREAS, said above mentioned contract provides that the City
will tender to WHAIF~ CORPORATION a lease sufficient to vest in
WHATF~ CORPORATION a leasehold estate for the term hereof in a tract
of a size and shape adequate for the operations herein provided to be
conducted by WH~T.WN CORPORATION ; and
WHEREAS, the City desires to provide an additional source of
elevated storage for potable water for its inhabitants; and
WHERFAS, WHAT.WN CORPORATION has represented that it is
presently capable of providing management and coordination for the:
(a) construction,
(b) ~inancin~,
(c) operation, and
(d) maintenance
of the proposed faci]ity described in Proposals, Specifications,
Contract and Bond Forms for 2.0 MG Greens Prairie Road Elevated
Storage Tank dated March 1983 and referred to hereinafter as the
"Facility", either by itself or through contract with others.
WHAI.WN CORPORATION represents that it is a qualified bidder pursuant
to the instructions to bidders which were the subject of sea]ed bids
00A589
preceeding the letting and execution of this contract. The
qualifications of bidders contained in such instructions are expressly
incorporated herein by reference, and such representations are material
to this contract and form the basis of the bargain.
NOW, THEREFORE, witness
of , A.D. ]-9
STATION, TEXAS, a Municipal
this agreement made this day
, by and between the CITY OF COT.L~E
Co~0oration located in Brazos County,
Texas, hereinafter known as the
CORPORATION
and Lessee:
"City" and "Lessor" and
, a Texas Corporation, hereinafter known as
WITNESSETH
I.
That the Lessor herein, for and in consideration of the above and
the covenants hereinafter set forth and the additional consideration
of One Dollar ($1.00) per year, does hereby agree to lease unto the
said Lessee the following described property situated in Brazos County,
Texas, to-wit:
See Exhibit "A" Attached
II.
That the term of this lease shall be a period fram the date of
the execution of this Agreement, through the construction of the
fifteen (15)
facilities, and through a period of seventeen (!?) years fo]lowing the
expiration of twelve (12) days next from and after notice of the City
of the completion of the FACILITY, as set out in the aforementioned
contract, and shall not be renewed thereafter, unless agreed to by
both the City of Co] lege Station end Wha]en Corporation.
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III.
That the property herein leased shall be used only in fulfillment
of the terms of the aforementioned contract between the Lessor and
Lessee herein and for no other purpose.
IV.
That the Lessee, its contractors and/or subcontractors agree to
indemnify and hold harmless the CITY OF CO~J.FGE STATION of and from
any and all demands, damages, suits, actions, expenses, costs and
Judgments that may be brought or had against the said CITY OF OOTJ.EGE
STATION for any ir43ury or death to any person, or persons, or damage
to any property that may result from or arise out of the operations of
any subcontract made by Lessee incident to this Agreement.
IN WITNESS WHEREOF, this instrbment has been executed by the
undersigned acting through their respective officers thereunto duly
authorized, on the date above recited.
ATI~ST:
City Secretary
CITY OF COIJ,VGE STATION, TEXAS
BY:
North Bardell, City Manager
~IJ.-AT .~ CORPORATION
BY:
Arnold Darrow, President
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00&591
Being a parcel of land situated in the Robert Stevenson League, Abstract
54, iu Brazos County, Texas, and the ?45.83 acre tract conveyed to
Esther Cavitt Sims Estate in Volmme 123, Page 136 of the Deed Records
of Brazos County, Te×~, and being more particularly described as
follows:
BEGIN at the east corner of said 745.83 acre tract, said corner being
the intersection of the existing southwestern right-of-way line of
State Highway 6 and the northwestern right-of-way line of Greens Prairie
Road; Thence Southwest 312 feet along the northwest right-of-wsy line
of Greens Prairie Road to an angle point; Thence Southwest 77 feet
along the northwest right-of-way of Greens Prairie Road to an angle
point; Thence Southwest ll9 feet along the northwest r.ight-of-way of
Greens Prairie Road to an angle point; Thence Southwest ~42 feet along
the northwest right-of-way of Greens Prairie Road to an angle point;
Thence Northeast 438 feet along a line coincident with the future
southwest right-of-way of State Highway 6 to an iron pin, said pin
being the POINT OF BEGINNING of this DESCRIPTION;
THENCE N 45° 35' ~5" W 200.00 feet to an iron pin for corner;
THENCE N 26° 53' 29" E 200.00 feet to an iron pin for corner in the
future southwest right-of-way line of State Highway 6;
TH~CE along a line coincident with the future southwest right-of-way
line of State Highway 6 to the POINT OF BEGINNING, the following:
S 45' 35' 45" E, 200.00 feet to an iron pin for corner
S 26° 29"
53' W, 200.00 feet
containing 0.876 acres of ].and, more or less.
ooa. 5' 2
ELEVATED %;ATER STORAGE AGREEMENT
THIS AGREEMENT, made and entered into by and between:
. The City of Col/eKe Stationz Texas , acting
by and through Gary Ha~ter. Mayor
thereunto duly constituted and authorized, herein called "CITY";
and l,~alen Corporation , a corporation
organized and existing under the laws of the State of
Texas , herein called "CO,dPt{Y";
W I TNE S SETH
%;HEREAS, CITY desires to provide additional storage for
potable eater for its inhabitants; and
%;HEREAS, CO~P~NY has represented that it is presently
capable of providing management and coordination for the:
(a) construction,
(b) financing,
(c) operation, and
(d) maintenance
of the proposed facility described in Exhibit "A" hereto and
referred to hereinafter as the "Facility", either by itself or
through contract with others. COMPA~Y represents that it is a
qualified bidder pursuant to the instructions to bidders %:hich
were the subject of sealed bids preceeding the letting and
execution of this contract. The qualifications of bidders
contained in such instructions are expressly incorporated herein
by reference, and such representations are material to this
contract and form the basis of the bargain.
NOW, THEREFORE, th~ parties hereto, in consideration of the
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mutual premises and covenants stated herein, agree as follows:
Section 1. Term.
1.1 This Agreement shall be effective as of the date hereof
and shall continue for a primary term of fifteen (15) years from
the completion date as defined in Section 6.
1.2 Further, this Agreement shall continue in force and
effect after the expiration of the primary term until either
party notifies the other by prior written notice of no fewer than
thirty (30) days of its intention to terminate this Agreement,
~hich notice may be given effective for any date after expiration
of the primary term, provided that in the event of notice of
termination by COMP~, the City shall be entitled to exercise
its option to purchase as other%¢ise set forth in Section 12 ,
within thirty (30) days after such notice of termination.
Section 2. General Representation of COMP~
2.1 COMPANY further agrees, in accordance with the terms
hereof, to construct, or cause the construction of, and maintain
and operate, or cause the maintenance and operation of, the
Facility as provided herein.
2.2 COMPANY represents that it is duly authorized and
empowered to enter into this Agreement by all requisite corporate
action. COMPkNY will furnish satisfactory proof of authority
upon request, and will take any actions deemed necessary by the
CITY to approve or ratify this contract, or any acts or
obligations necessary hereunder.
Section 3. General Representations of "City of College Station".
3.1 CITY agrees to perform all of its obligations hereunder
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(
in accordance with the terms hereof.
3.2 CITY represents that it is duly empowered to enter into
this Agreement and that there are no restrictions or regulations
imposed by CITY's Charter or the State of Texas which prevent the
enforceability of this Agreement or any portion hereof.
Section 4. Designation of Iocation.
4.1 Within ten (10) days after the date hereof, CITY will
designate the location at which COMPANY is to construct the
FACILITY.
4.2 Within such period, CITY will tender to COMPANY a lease
on the form attached hereto sufficient to vest in COMPANY a
leasehold for the term hereof in a tract of a size and shape
adequate for the construction of the Facility and all operations
herein provided to be conducted by COMPanY.
4.3 As the rental for the leasehold, COMPANY shall pay to
CITY the sum of One Dollar ($1.00) per year during the term
hereof.
Section 5. Construction of Facilities.
5.1 Within sixty (60) days after the date hereof COMPanY
will commence or cause to be commenced the construction of the
Facility at the site designated by CITY and will thereafter
prosecute or cause to be prosecuted the design and/or
construction of the Facility with due diligence according to and
in the manner provided in the plans and specifications attached
as Exhibit "A" hereto.
5.2 The construction of the Facility shall be conducted at
the sole risk, cost and expense of COMP~, and COMPanY shall
00 595
liability resulting .rom such construction, except for liability
resulting from the gross negligence or deliberate acts of the agents
or employees of CITY. Such Facility shall be completed and equipped
for the storage of water within four hundred (400) days after the date
hereof, and failing same, COMPANY shall be subject to an offset against
the first annual payment pursuant to Section 7 of Five Hundred Dollars
($500.00) per day, for each day after the 400th day, until the comple-
tion as defined herein.
5.3 Such Facility and all movables placed therein or thereon by
COMPANY or obtained by and used in connection therewith shall be and
remain the property of COMPANY.
5.4 Notwithstanding the foregoing, if construction of the Facility
by COMPANY is interrupted by acts of God, including but not limited to
epidemic, flood, earthquake, wind, hurricane, or other inclement
weather; or by explosion, sabotage, revolution or insurrection, civil
commotion, blockade, or embargo, COMPANY shall be excused from perfor-
mance hereunder while and to the extent it is prevented from so per-
forming by any one or more of such causes. Any such delay shall extend
the time for completion by not more than the duration of the delay.
Section 6. Completion Date.
6.1 When the COMPANY determines that construction of the Facility
has been completed, COMPANY will notify CITY of such fact and will
furnish to CITY any information which COMPANY possesses or can reasonably
obtain pertaining to the site, the Facility, the equipment, the per-
formance of the plans and specifications, and the characteristics of the
project as completed, upon reasonable request for same by the CITY.
6.2 CITY shall have a period of fifteen (15) working days,
excluding all established City holidays, after receipt of such notice'
within which to make or cause to be made, at its own risk, cost and
00 596
appropriate. In the event that any failure to~_omply with the plans
and specifications is ascertained, COMPANY shall forthwith accomplish
compliance and shall reimburse the costs of the CITY, if any.
Additionally, the liquidated damages provided for setoff in Section 5.2
shall apply to any such time period necessary to accomplish final
compliance with the plans and specifications. After compliance with
plans and specifications has been certified by the CITY, the Facility
will be deemed accepted by the CITY, such date being referred to
hereinafter as the completion date. Should the CITY fail to notify
COMPANY of any failure to meet plans and specifications, and addi-
tionally fail to certify compliance, the completion date shall be the
sixteenth (16th) day after actual notice to the CITY of tentative
completion.
Section 7. Payment for Water Storage.
7.1 For a period of fifteen (15) years from and after the comple-
tion date, CITY will pay COMPANY an annual fee of Two Hundred Fifty
Thousand Eight Hundred Thir=een Dollars ($250,813.00), which amount
shall be payable to COMPANY over and above any and all ad valorem pro-
perty taxes, if any, which may be assessed against COMPANY by any local
taxing authority with respect to the Facility or site thereof.
7.2 Within five (5) days after the end of each month during the
term hereof, COMPAI{Y will submit to Director of Finance an invoice for
such month determined by dividing the annual fee by twelve (12) and
adjusting proportionately for any period the Facility was "out of service"
for each month. Such invoice shall be paid by CITY to COMPANY on or
before ten (10) days after the receipt thereof by CITY. All unpaid
invoices shall bear interest at the rate of ten percent (10%) per
annum from the due date thereof.
7.3 In the event that, during the term hereof, the Facility
shall be "out of service" for any reason other than the -00 597
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inability of CITY to deliver water to or take water from such
Facility or "scheduled maintenance," the fee payable by CITY
shall be reduced by an amount determined by multiplying the
number of days the Facility is out of service by the annual fee
divided by 365.
7.4 "Out of service" shall mean inoperability of an
involuntary nature. "Scheduled maintenance" shall mean
maintenance scheduled with the consent and approval of the CITY.
Section 8. Covenants of COMP~.
8.1 COMPANY will use reasonable care to maintain and
operate the Facility in good working order and condition, and to
repair the facility and return it promptly to good working order
and condition in the event of an involuntary failure to operate.
8.2 COMPanY will maintain the portions of the designed
tower lighting system required by FAA or other governmental
regulations pursuant to the requirements of such regulations, and
shall repair or replace any such facilities within the time
periods allowed by law.
8.3 COMPANY will use reasonable care and prudence to
maintain the level gauge and pump station signal transmitting
equipment (said signal transmitting equipment being located at
the tank site and constituting a critical functioning part of the
facility) and to repair same and restore its proper operation in
the event of failure.
8.4 COMPANY will maintain and operate the Facility in
accordance with all applicable laws and regulations of the Texas
Department of Health, the Environmental Protection Agency, or
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other governmental agencies whose jurisdiction and authority
extends to the facility, as such laws and regulations now exist
or may be hereafter amended.
8.5 COMPANY will carry out the continuing maintenance and
watering of all landscaping called for in the specifications, and
will promptly replace any dead plants or repair damage to the
landscaped areas. COMP;~NY will mow or eradicate grass or other
growth within the interior of the facility, and will mow and trim
all landscaped areas to maintain a satisfactory appearance.
Maintenance of landscaping shall approximate the quality of care
and maintenance apparent in CITY parks.
8.6 COMPanY will maintain a secure perimeter enclosure with
adequate locks on all entrance locations. Unless changed by
request of the CITY, the perimeter enclosure shall be maintained
in accordance with the original plans and specifications. The
CITY shall have the right to inspect the Facility at all
reasonable times, and to require additional security facilities,
personnel, or modifications of the enclosure, at the CITY'S sole
cost.
8.7 COMPanY will furnish the City of College Station with
names of employees of COMPA~ proposed to have access to the
facility, which the CITY may approve or reject, with or without
cause. No employee of COMPANY rejected by the CITY shall ever be
permitted to enter the Facility.
8.8 CO~P~%~ will maintain the paint system and repaint the
Facility as needed to maintain the integrity of the paint system,
and to provide a reasonably satisfactory appearance. COMPANY
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00l 599
will overpaint any vandalized areas at least annually. CITY
shall be entitled to request more frequent overpainting of
vandalized areas at its sole expense.
8.9 COMPANY shall not store anything on the site in such a
manner as to be visible from outside the perimeter fence.
Section 9. Removal from Service for Inoperability.
9.1 The period for which deductions or adjustments are to
be made in the payments pursuant to Section 7.3 shall commence as
of (and not before) the time'of receipt by COMPanY of notifi-
cation from CITY that the Facility is in inoperable condition and
unable to deliver the quantity of water herein provided.
9.2 COMPANY may not voluntarily remove the Facility from
service without the approval of the CITY as to the time and
duration of such removal from service.
Section 10. Remedy for Breach.
10.1 CITY shall be entitled to perform any obligation of
COMPanY hereunder in the event of a breach by CO~P~Y and to
thereafter obtain reimbursement far the cost of such performance.
CITY shall be entitled to access and control of the facility for
such purposes upon demand, irrespective of any dispute over the
existence of a breach by CO~.~P;C~, provided that the right to
reimbursement shall depend solely upon subsequent determination
of the existence of a breach by CO~!P~', and no reimbursement
shall ever be made if CITY has prevented performance by COMP~fY.
10.2 Either party shall have such legal remedies as exist at
law or in equity, except as modified or provided herein.
00 600
Section 11. Insurance.
At all times during the term hereof, COMPANY will maintain
in force and effect:
(a) A policy or policies of broad form comprehensive
general liability insurance issued by insurance
companies licensed to do business in the State of Texas
and approved by the CITY, with limits of not less than
Five Hundred Thousand Dollars ($500,000.00) per
occurrence, and Five Hundred Thousand Dollars
($500,000.00) aggregate, together with excess or
umbrella insurance concurrent with such primary
coverage for no less than Five Million Dollars
($5,000,000.00). Such policy shall provide for no less
than fifteen (15) days notice to the CITY in the event
of cancellation.
(b) A policy or policies of insurance issued by companies
licensed to do business in Texas, and approved by the
CITY, with deductible limits of not less than Two
Million Dollars ($2,000,000.00) per occurrence,
insuring all personal property, fixtures (including the
tank and related facilities), and equipment situate~ on
the surface of the earth and used by COMPANY in
performance of its obligations hereunder, covering loss
by fire, casualty, explosion, theft or other
catastrophy; coverage limitations and exclusions to be
approved by the CITY.
(c) Contractual coverage to the extent of the excess limit
of Five Million Dollars ($5,000,000.00), referenced
above ~n subparagraph (a), as to all obligations of
COMPANY'hereunder, including the obligations of
indemnity set forth herein.
Section 12. Option to Purchase.
12.1 CITY shall have, and there is hereby given and granted
to CITY the exclusive and continuous option, after expiration of
the primary term of this Agreement, to purchase and acquire the
Facility and all movables furnished by COMPA~' pursuant to this
Agreement, together with the lease upon which the same are
situated. Such option may be exercised at any time within a
period of thirty (30) days after any anniversary date of the
primary term and the same may be exercised by any authorized
representative of the CITY, in writing delivered by COMPANY.
COMP~%~' shall have no fewer than thirty (30) days thereafter to
accomplish the transfer.
12.2 As the consideration for such properties and interests,
CITY shall pay to COMPANY the fair market value of the Facility.
If CITY so elects to purchase such property, it shall submit
notice to COMPANY with an itemized statement of its opinion of
the fair market value thereof. If COMPANY does not accept and
agree to such stated value, then within ten (10) days after
receipt thereof, it shall notify CITY in writing of its
objections thereto and shall submit to CITY an itemized statement
of its opinion of the fair market value thereof. If within ten
(10) days after receipt by CITY of such statement COMPANY and
CITY are unable to agree on such value, the same shall be
00 .602
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determined by arbitration with each party to designate an MIA
appraiser who shall both mutually ascertain the value of the
Facility; and failing agreement between the two, the average of
their values shall be the purchase price.
12.3 Upon effective date of the exercise of such option by
CITY, this Agreement shall terminate (except with respect to all
indebtedness and obligations theretofore accrued and owing),
COMPanY shall execute and deliver to CITY such bills of sale,
transfers and assignments as may be necessary to vest in CITY
title to such properties and interests, and CITY will pay to
COMPA2;Y, in cash, the sum determined as provided herein.
Section 13. Notices
All notices herein provided to be given to CITY shall be
deemed to have been given when delivered in writing to the
Director of Capital Improvements of the City of College Station,
at 1101 Texas Avenue, College Station, Texas 77S40.
Ail notices herein provided to be given to COMPANY shall be
deemed to have been given when delivered in writing to it at its
offices at
1400 One £ner~y S~uare - 4925 Greenville Avenue
Dallas, Texas 75206
Section 14. %;arranty
COMPAI~Y warrants that it will use extreme care to prevent any
contamination of water while stored in the Facility, but makes no
additional warranty of any kind, express or implied, as to the
quality of water delivered from the Facility or its fitness for
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consumption. CITY agrees to save, indemnify and hold COMPANY
harmless from any claims or actions founded upon water quality or
contamination of water, which arose prior to delivery of water to
COMPANY for storage, or after return from storage to the CITY
system. COMPANY warrants that it will use ordinary care in the
operation of the Facility to make water available upon demand to
the public for its usual and ordinary uses. COMPANY will
indemnify CITY and hold CITY absolutely harmless for any claims
or losses, including costs of defending such claims, which claims
have as a producing cause the breach of COMPanY's obligations,
representations or warranties herein; provided that this
provision is not made for the benefit of any third party, and no
third party claim or cause of action shall be premised upon this
provision which would not otherwise exist at law or in equity.
Section 15. Waiver.
Failure of either party to insist in any instance on the
strict performance of any covenant, term, provision or condition
hereunder, or to exercise any option herein contained, shall not
be construed as a waiver of such covenant, term, provision,
condition or option in any other instance.
Section 16. Governing Law.
This Agreement shall be construed under and governed by the
laws of the State of Texas.
Section 17. Assignment.
This Agreement may not be assigned in whole or in part by
either party except with the consent of other party, which shall
not be unreasonably withheld, considering the reasonable
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objectives and expectations of the parties hereunder.
IN WITNESS WHEREOF, this instrument has been executed by the
undersigned acting through their respective officers thereunto
duly authorized, as of the 7~ ~
- day of ,
1984.
ATTEST:
R~bert W. Puetz, _~
Asst. Secret ~ry
ATTEST:
Cxty
I~IALEN 591~PORATION
Arnold Darrow, President
CITY OF COL~TA
Gary~ait~ Ha~'or- '
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