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HomeMy WebLinkAboutResolution - 2011-R0502 - Agreement, Transfer & Sale Of Water Supply - City Of Lamesa - 11/16/2011Resolution No. 2011-RO502 November 16, 2011 Item No. 5.8 RESOLUTION IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to ecute for and on behalf of the City of Lubbock an Agreement for the Transfer and Sale Water Supply between the City of Lubbock and the City of Lamesa. Said Agreement attached hereto and incorporated in this Resolution as if fully set forth herein and shall included in the minutes of the Council. by the City Council this November 16_,2011. TOM MARTIN, MAYOR Garza, City AS TO CONTENT: P.E., Chief Operating Officer AS TO FORM: Sake OL and Lamesa Resolution No. 2011-RO502 AGREEMENT FOR THE TRANSFER AND SALE OF WATER SUPPLY BY AND BETWEEN THE CITY OF LAMESA AND THE CITY OF LUBBOCK WHEREAS, the City of Lamesa, Texas, a home rule municipal corporation of the state of Texas ("Lamesa") and the City of Lubbock, Texas, a home rule municipal corporation of the state of Texas ("Lubbock"), are both member cities of the Canadian River Municipal Water Authority ("CRMWA') and as such are entitled to receive a portion of their respective water supplies from water supplies owned and operated by CRMWA; and WHEREAS, Lubbock's allocation from CRMWA is greater than the anticipated needs of Lubbock for at least the month of December 2011 and, as a result, Lubbock desires to convey such additional allocation to Lamesa, on the terms and provisions set forth below. NOW, THEREFORE, Lamesa and Lubbock hereby agree as follows: SECTION 1. TRANSFER AND SALE OF WATER SUPPLY a. Initial Transfer. Lubbock agrees to sell to Lamesa, and Lamesa agrees to purchase from Lubbock, up to thirty-five million (35,000,000) gallons of untreated water for only the month of December 2011 of this Agreement, said water to be delivered to Lamesa at the point of delivery. The Point of Delivery (herein so called) is (i) for groundwater, in the ground within the boundaries of well fields owned by CRMWA; and (ii) for surface water, the raw water intake of CRMWA at Lake Meredith. Lamesa shall pay to Lubbock the consideration of one dollar and thirty cents ($1.30) per 1,000 gallons of untreated water purchased by it. Lamesa is required to pay Lubbock only for the water actually delivered to it by CRMWA on behalf of Lubbock out of Lubbock's CRMWA allocation. b. Payments. Lamesa shall make payments to Lubbock for water delivered to it pursuant to the terms hereof on or before thirty (30) days after the receipt of an invoice for same as delivered to it by Lubbock. Payments not paid within thirty (30) days of the date of receipt of the invoice shall bear interest at the rate of 1% per month beginning on the 31 " day after the receipt of the invoice. SECTION 2. TERM. The term of this Agreement shall be for only one month, beginning on December 1, 2011, and ending on December 31, 2011. SECTION 3. DELIVERY. Lamesa shall pay to CRMWA all expenses related to the delivery of the water purchased by Lubbock pursuant to the terms of this Agreement. SECTION 4. AS IS CONVEYANCE. Except as provided herein, the water sold hereunder is "as is" and "with all faults". Subject to the terms of Section 6, below, Lubbock warrants to Lamesa that the water delivered to Lamesa hereunder shall be of the same quality of that water provided by CRMWA to other CRMWA member cities. Lubbock and Lamesa each agree that CRMWA shall be held harmless for any inability to deliver the water due to lack of aqueduct capacity, and that the delivery of the water shall only be made at such times and under such conditions that the right and ability of any other CRMWA member city to receive its contractually allocated water supply shall not thereby be impaired. SECTION 5. APPROVAL OF CRMWA. This Agreement is contingent upon the approval of the Board of Directors of CRMWA and the ability of CRMWA to transport the water to Lamesa through the existing pipeline, or any pipeline construction in the future, serving Lubbock. SECTION 6. SOURCE OF WATER. It is expressly agreed and understood that Lubbock receives its allocation of water from CRMWA from groundwater resources and/or surface water supplies, or a combination of both, owned by CRMWA. It is stipulated and agreed that water delivered to Lamesa hereunder may be comprised of any combination of such surface water and groundwater. SECTION 7. NOTICE. Any notices required to be given under this Agreement shall deemed given upon being mailed, by certified mail, return receipt requested, postage prepaid, and the address to the other party is as follows: City of Lubbock Attn: City Manager P.O. Box 2000 Lubbock, Texas 79457 City of Lamesa Attn: City Manager 601 South 1s` Lamesa, Texas 79331 Copy to: Canadian River Municipal Water Authority Attn: General Manager P.O. Box 9 Sanford, Texas 79078 SECTION 8. SEVERABILITY. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect such invalidity, illegality or unenforceability shall not in any way affect any other provision hereof and this Agreement shall be considered as if such invalid, illegal or unenforceable provision had never been contained in this Agreement. SECTION 9. GOVERNING LAW AND VENUE. This Agreement is performable, at least in part in Lubbock County, Texas and venue for any action arising out of this Agreement shall be exclusively in Lubbock County, Texas. This Agreement shall be governed and construed in accordance with the laws of the State of Texas. SECTION 10. EVENTS OF DEFAULT AND REMEDIES a. Lamesa's Defaults/Lubbock's Remedies. In the event Lamesa's shall default in the performance of any term or provision of this Agreement for any reason other than (i) failure by Lubbock to perform hereunder, or (ii) force majeure, Lubbock may, if said default shall be continuing after twenty (20) days notice of such default delivered to Lamesa, exercise any right or remedy available to it by law, contract, equity or otherwise, including without limitation, the right to terminate this Agreement. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. b. Lubbock's Defaults/Lamesa's Remedies. In the event Lubbock shall default in the performance of any term or provision of this Agreement for any reason other than (i) failure by Lamesa to perform hereunder, or (ii) force majeure Lamesa may, if said default shall be continuing after twenty (20) days notice of such default delivered to Lubbock, exercise any right to remedy available to it by law, contract, equity or otherwise, including without limitation, specific performance and/or the right to terminate this Agreement. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. c. Attorney's Fees. In the event it becomes necessary for either party to institute suit to any right or obligation against the other party arising from or incident to this Agreement, then the prevailing party shall be entitled to recover reasonable attorney's fees and court costs. d. Force Maieure and Government RegWations. As used herein, the term "force majeure" shall mean any act of God, including without limitation, storms, floods, washouts, landslides and lightening. If either party is ordered required or directed by an order, rule or regulation of a governmental authority (other than Lamesa or Lubbock) having jurisdiction over such matters to cease its activities hereunder, or if either party is prevented from such activities by force majeure, then such party is relieved of its obligations under this Agreement; provided however, in no event shall performance hereunder be excused for a period in excess of a cumulative of ninety (90) days during the tern of this Agreement. The party claiming force majeure or adverse governmental regulation shall provide notice of such event to the other party on or before seventy-two (72) hours after the occurrence of such claimed event. In the event notice is not provided to the other party as provided herein, it shall be deemed, for all purposes, as if no force majeure or adverse governmental regulation event has occurred. This Agreement is dated the 16th day of November , 2011, but effective for all purposes as of Dec. 1 , 2011. CITY OF LUBBOCK CITY OF LAMESA �4 TOM MARTIN, MAYOR ave Nix, Mayor ATTEST: ATTEST: Redecca Gane, City Secretatk__� Matra Hatchett, City Secretary APPROVED AS TO CONTENT: Marsha Reed, P.E., Chief Operating Officer Aubrey Sp7O.f, Dfuector of Water Resources APPROVED AS TO FORM: APPROVED BY THE BOARD OF DIRECTORS, CANADIAN RIVER MUNICIPAL WATER AUTHORITY on this jj_� day of 2011. Ll a By &JW Name: Kent Satterwhite Title: General Manaeer