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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-