HomeMy Public PortalAbout01058
O R D I N A N C E NO. 1058
AN ORDINANCE confirming a Modification of the contract
with G.L. Tarlton Contracting Company for construction of the
Coldwater Creek Sewage Treatment Plant for The Metropolitan St.
Louis Sewer District, with an emergency clause.
BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE
METROPOLITAN ST. LOUIS SEWER DISTRICT:
Section One. Hereby confirmed is the following
"Modification of Contract" formally executed by G.L. Tarlton
Contractor and by the Executive Director and the General Counsel
on behalf of the District on the 4th day of October, 1963.
(See next page)
MODIFICATION OF CONTRACT
FOR CONSTRUCTION OF THE COLDWATER CREEK
SEWAGE TREATMENT PLANT
FOR
THE METROPOLITAN ST. LOUIS SEWER DISTRICT
ARTICLES OF AGREEMENT AND MODIFICATION made and entered
into this 4th day of October, 1963, by and between THE
METROPOLITAN ST. LOUIS SEWER DISTRICT, hereinafter called
"District" and G.L. TARLTON CONTRACTING COMPANY, hereinafter
called "Contractor",
WITNESSETH:
WHEREAS, the parties hereto on August 7, 1963, entered
into a written contract for the construction of the Coldwater
Creek Sewage Treatment Plant in St. Louis County, Missouri, such
contract having been confirmed by Ordinance No. 1010 of the
District, and
WHEREAS, said contract makes no separate and express
provision for Missouri Sales and Compensating Use Taxes, on the
contract materials, and
WHEREAS, Rule No. 18 of the Rules and Regulations of
the Department of Revenue for the administration and enforcement
of the Missouri Sales Tax Act and Compensating Use Tax Law applies
to such of the contract materials as are not expressly exempted
under the law and regulations, and
WHEREAS, said Rule No. 18 subjects Contractor to such
taxes on such contract materials purchased by Contractor and
subjects each person to whom Contractor sublets or subcontracts a -2-
portion of said contract to such taxes on such contract materials
purchased by that person, and
WHEREAS, the estimated amount of such taxes on such
contract materials, being those materials not expressly exempt
under the law and rules and regulations, were included in the
Contractor's bid price for said work, but such taxes on said
exempt materials were not included, and
WHEREAS, the Contractor's interest in payments of such
taxes within the estimated amount thereof is confined to being
reimbursed therefor in the payment by District of the contract
price, and otherwise such taxes are a non-profit item of said
contract, and
WHEREAS, the possibility exists that neither Contractor
nor District may lawfully be compelled to pay or to absorb such
taxes,
NOW, THEREFORE, the parties hereto, in consideration of
the premises and each in consideration of the promises of the
other, do hereby mutually covenant and agree:
1. That said contract in writing, as confirmed by
Ordinance No. 1010 of District, shall be and the same hereby is
modified as hereinafter set forth and that, in the event of any
conflict, inconsistency, or incongruity between the provisions
of this modification and any of the provisions of said contract as
heretofore entered into and confirmed, the provisions of this
modification shall in all respects govern and control.
2. Contractor agrees, in behalf of Contractor and any
sub-contractor who assents thereto, to protest payments of such
-3-
taxes whether paid directly to the State of Missouri or to some
vendor or other person. The asserted grounds of protest are
agreed to be that such materials and property may not be taxed
under Article III, Section 39(10) and Article X, Section 6 of the
Constitution of Missouri and under all applicable statutes of the
State of Missouri.
3. Contractor agrees that Contractor and any
subcontractor who so assents will keep a complete record of said
tax payments paid under protest.
4. Contractor agrees that Contractor and any subcon-
tractor who so agrees, will assist the District and join with it
in seeking adjudication of the lawfulness of such taxes on said
contract materials and property. To that end, Contractor and such
subcontractors and the District will take such steps as they may
agree upon as appropriate and necessary to make and sustain a
valid claim for recovery of such taxes paid on said contract
materials and property.
5. District agrees that this modification shall not
alter or affect those provisions of said contract which provide
for or relate to the payment of the contract price for the work;
so that the amounts of such taxes may not be withheld from
Contractor or placed in escrow pending adjudication of liability
therefor.
6. The District agrees to be obligated for, and it will
pay, all expenses incurred and required for court costs in seeking
said adjudication and for all other reasonable costs incidental
thereto, as determined and approved by the parties and
-4-
their respective counsel; and the District further agrees to save
the Contractor and such subcontractors harmless from the payment
of all such costs or other expenses.
7. District and Contractor agree that upon final
adjudication of liability for such taxes, the sum or sums thereof
saved or recovered by District, Contractor, and said
subcontractors, or any of them, shall constitute a trust fund.
After deduction from or payment from such trust fund of the
reasonable costs and expenses of such tax saving or tax recovery,
as herein provided, the remainder of such trust fund shall be paid
over to the District as its property.
IN WITNESS WHEREOF the parties hereto have set their
hands and seals the day and year first above written. THE METROPOLITAN ST. LOUIS SEWER DISTRICT By ______________________________________ Executive Director ATTEST: ________________________ General Counsel G.L. Tarlton Contracting Company By ______________________________________ President Countersigned: _______________________ Secretary
-5-
Section Two. This ordinance shall take effect
immediately upon its enactment, there being an emergency within
the meaning of the Plan, because materials and property for said
Treatment Plant are currently being purchased and prompt action is
required to protect the public interest. The foregoing Ordinance was adopted October 4, 1963.
-6-