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HomeMy WebLinkAboutResolution - 2021-R0172 - Wholesale Water Agreement with LCISD 5.11.2021Resolution No. 2021-R0172 Item No. 8.13 k May 11, 2021 RESOLUTION BE 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 execute for and on behalf of the City of Lubbock, an Interlocal Wholesale Water Sales Agreement regarding the sale of wholesale water by and between the City of Lubbock and Lubbock -Cooper Independent School District, and all related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on May 11, 2021 DANIEL M. POPE, MAYOR ATTEST: Reb Garza, City Secr ary APPROVED AS TO CONTENT: Jesica cEac ern, Assistant City Manager APPROVED AS TO FORM: FW, W Attorney W D., Resolution No. 2021-RO172 INTERLOCAL WHOLESALE WATER SALES CONTRACT STATE OF TEXAS COUNTY OF LUBBOCK This Contract is made by and between the CITY OF LUBBOCK a home rule municipal corporation located in Lubbock County, acting by and through its Mayor as authorized by specific action of this Council; and the LUBBOCK-COOPER INDEPENDENT SCHOOL DISTRICT, (herein called "Consumer/User "), an Independent School District of the State of Texas, acting by and through its Board of Trustees. WITNESSETH WHEREAS, the Consumer/User is an Independent School District of the State of Texas, with its boundaries located in part within the municipal limits of Lubbock; WHEREAS, citizens of the City of Lubbock attend schools of the Consumer/User at the campus located outside of the City of Lubbock, in or around the community of Woodrow, Texas, as depicted on Exhibit "A", attached and hereto (The Woodrow Campus); WHEREAS, due to the expansion of the Woodrow Campus and the rapid depletion of the ground water wells that provided potable water to the Consumer/User in the past, the Consumer/User continues to need a reliable source of water for the Woodrow Campus; WHEREAS, Section 22.03.091of the Code of Ordinances of the City of Lubbock permits the sale of wholesale water outside its municipal boundaries to federal, state or local governments pursuant to appropriate intergovernmental contracts; WHEREAS, the City of Lubbock is amenable to providing said wholesale, subject to the conditions precedent and upon the terms and conditions of this Contract, to Consumer/User and WHEREAS, the Government Code authorizes certain intergovernmental cooperation contracts; NOW THEREFORE, for and in consideration of the mutual agreements, covenants, obligations, and benefits herein expressed, the City of Lubbock and Consumer/User contract and agree as follows: Page 1 of 14 ARTICLE I PROVISIONS OF WATER 1.1 TERMS, PROVISIONS AND CONSIDERATIONS The City of Lubbock agrees to sell and convey wholesale water to the Consumer/User, outside the City of Lubbock, subject to the conditions precedent and under and pursuant to the terms, provisions and conditions of this Contract. ARTICLE II CONDITIONS OF SALE OF WHOLESALE WATER 2.1 QUALITY AND TREATMENT The City of Lubbock shall supply potable water of similar quality that the City of Lubbock distributes to the residents of Lubbock, Texas treated by disinfectants and such other treatment as may in the future be directed by appropriate regulatory agencies and meeting the applicable primary drinking water standards of the Texas Commission on Environmental Quality (TCEQ) and other local, State and Federal governmental agencies at the Point of Delivery, as hereinafter defined, during the term of this Contract. THE CITY OF LUBBOCK MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING WITHOUT LIMITATION, AS TO THE DESCRIPTION, VALUE, QUALITY, PHYSICAL CONDITION, MERCHANTABILITY, OR FITNESS FOR PURPOSE OF THE WATER SUBJECT TO THIS CONTRACT EXCEPT AS EXPRESSLY SET FORTH ABOVE. 2.2 QUANTITY The City of Lubbock shall supply and deliver a total maximum amount of 25 million gallons of water during any three hundred sixty-five (365) day period of time beginning October 1 of each year, based upon the historical usage of the Consumer/User to the Consumer/User's point of delivery as shown in Exhibit "A." The peak maximum usage during any 24-hour period of time shall be 150,000 gallons. In the event Consumer/User shall use more than the allotted maximum amount of water in the above - described (365) day period given period as set forth above, Consumer/User shall pay an amount equal to two (2x) times the water rate set forth in Paragraph 3.2 for that amount of water that exceeds the allotted maximum quantity. Based on these calculations, the City of Lubbock shall supply a set quantity to the Consumer/User at the Point of Delivery as shown in Exhibit A. All water quantities delivered shall be measured at the Point of Delivery. All water quantities delivered shall be measured by the metering device at the Point of Delivery at the sole cost of Consumer/User. The meter shall be located in an area reasonably accessible by the City of Lubbock at all times. If the metering device is to include remote monitoring equipment, the Consumer/User shall bear the sole cost of this additional equipment. Installation of Page 2 of 14 this metering device shall be the responsibility of the City of Lubbock with all cost and expense of such installation reimbursed by the Consumer/User. Such metering device may include and manage: (1) control the rate of flow; (2) measure the instantaneous flow of gallons per day; (3) measure peak hourly flow during the day of maximum flow in gallons per day; (4) measure the cumulative volume of water taken; and (5) control changes in the rate of flow. At the City of Lubbock's discretion, the metering device may be remotely monitored and documented as to usage of Consumer/User. Deliveries shall be contingent upon facilities necessary or convenient for the City of Lubbock to deliver water to Consumer/User from the City of Lubbock's existing water conveyance system to the Point of Delivery. The City of Lubbock shall give at least 48 hour notice of the possibility of a planned curtailment of or intent to curtail delivery of water or reducing the rate of flow to Consumer/User prior to curtailing the delivery or reducing the rate of flow. Such notice shall be in person to the superintendent or designee, by telephone to the superintendent or designee, or by email to the superintendent or designee. The City of Lubbock shall not be responsible for notice of any unplanned curtailments due to power outages, line breaks, force majeure, or other unforeseen events. 2.3 POINT OF DELIVERY AND TITLE Water provided to Consumer/User shall be delivered to the Point of Delivery that is currently being utilized by Consumer/User, as described in Exhibit A. Title to water passing through the Point of Delivery shall pass to the Consumer/User, for all purposes, at the outlet side of the meter. Consumer/User shall be responsible for the water, for all purposes and intents, from and after title passage to Consumer/User. CONSUMER/USER SHALL AGREE, TO THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY, SAVE, AND HOLD THE CITY OF LUBBOCK HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS, LOSSES, AND CAUSES OF ACTION, WHICH MAY BE ASSERTED BY ANYONE RELATED TO THE TRANSPORTATION AND DELIVERY OF SAID WATER WHILE TITLE REMAINS IN THE CONSUMER/USER. 2.4 METERING EQUIPMENT The City of Lubbock shall provide the maintenance of the necessary Point of Delivery metering device for properly measuring the quantity of water delivered to Consumer/User. Calibration of such metering equipment shall be done on a reasonable time schedule, but not less frequently than once every twelve (12) months, or more frequently than once every six (6) months. A meter registering not more than three percent (3%) accuracy above or below the test result shall be deemed to be accurate or non -material. The previous readings of any meter disclosed by test to be inaccurate beyond the acceptable range of plus or minus three percent (3%) shall be corrected in accordance with the percentage of inaccuracy found by such tests for a period extending back one-half (1/2) of the time elapsed since the last calibration date but, in no event, further back than a period of six (6) months. If the meter is out of Page 3 of 14 service or out of repair so that the amount of water delivered cannot be ascertained or computed from the reading thereof, the water delivered during the period such meter is out of service or out of repair shall be estimated upon the basis of the best available data and information. The metering equipment register shall be read by the City of Lubbock at least once a month. All metering equipment, valves, and other appurtenances associated with the metering installation shall be and remain the property of the City of Lubbock. 2.5 BILLING PROCEDURE The Consumer/User shall pay for services received pursuant to this Contract based upon the invoice submitted by the City of Lubbock each month. The monthly invoice shall include the amount of water determined to be delivered to the Consumer/User through the meter at the Point of Delivery during the preceding month shall be mailed to: Lubbock -Cooper ISD 16302 Loop 493 Lubbock, Texas 79423 (806)863-7100 All statements for water delivered shall be due and payable from current revenues available to Consumer/User on or before thirty (30) days after issuance of said statement. A late payment charge of ten percent (10%) per annum shall be charged for failure to pay the current due amount within thirty (30) days after issuance of the statement. If payment is not received by the City of Lubbock within thirty-five (35) days after the date of issuance of the statement, the statement shall be deemed delinquent. The City of Lubbock shall notify Consumer/User in writing when any such payment shall become delinquent, and if such delinquency is not removed within forty-two (42) days after the date of issuance of the written notice, the City of Lubbock may, at its discretion, cease deliveries of water to Consumer/User under the terms of this Contract. After water has ceased to be supplied, the City of Lubbock may, at its sole discretion, notify the Consumer/User of its intention to declare the wholesale water supply contract forfeited and null and void. Upon such notice, the Consumer/User shall have thirty (30) days to pay all delinquent charges, late fees, and reconnect charges, in order to reinstate wholesale water services prior to final action by the City of Lubbock declaring the Contract forfeited and null and void. Upon a declaration by the City of Lubbock that the Contract is forfeited and null and void, all connections providing the capability to deliver water shall be removed by the City of Lubbock. 2.6 AREA OF SERVICE Use of water purchased under this Contract shall be solely used at the facilities associated with the Lubbock -Cooper ISD Woodrow Campus. No other customer, geographic area or premises, of any kind or nature, shall be served by Consumer/User, directly or indirectly, with water purchased hereunder. Page 4 of 14 2.7 TERM OF CONTRACT The term of this Contract shall be a period of five years (5) commencing on the date of award and ending May 31, 2026. In the event of continued and mutual interest of the terms or similar terms of this agreement, a new contract shall be negotiated, developed, approved and executed for the period after May 31, 2026. However, in the event that a new contract is not or cannot be agreed upon, there shall be no further discharge or responsibilities of the City of Lubbock and Consumer/User. ARTICLE III CONDITIONS OF RECEIVING SERVICE 3.1 CONSUMER/USER'S FACILITIES The Consumer/User agrees and understands that it will install and maintain, at its sole expense, all facilities necessary for receiving, operating and distributing water into its water system from and after the Point of Delivery and that the City of Lubbock shall be under no obligation whatsoever to bear any of said expenses aforementioned. The Consumer/User shall not alter, modify, or change the meter facilities under any 3.2 RATES AND PAYMENT The Consumer/User shall pay to the City of Lubbock, in a timely manner, those charges for water provided to Consumer/User pursuant to the terms of this Contract. The base monthly rate for the meter installed at the Point of Delivery shall be equal to the rate established by the City Council of the City of Lubbock for meter of equal size as set forth in Section 22.03.084 of Code of Ordinances of the City of Lubbock, as may be amended from time to time. The volume rate charged for water provided shall be equal to the rate established by the City Council of the City of Lubbock charged to Commercial customers as set forth in Section 22.03.085 of the Code of Ordinances of the City of Lubbock, as may be amended from time to time. All expenses on Consumer/User's side of the Point of Delivery shall be the sole expense of Consumer/User. The setting of water rates is a legislative function of the City of Lubbock. To the extent the Consumer/User has any protest to the rates charged pursuant to this Contract, The Consumer/User understands and agrees that it has the right to ask to address the City Council of the City of Lubbock as to said rates, but that the City Council of the City of Lubbock ultimately has the legislative authority to determine such rates. Page 5 of 14 In the event any user fee is imposed on the delivery, taking, sale, use, or consumption of the water received by Consumer/User from the City of Lubbock, the amount of the user fee allocable to Consumer/User shall be borne by Consumer/User. When and if the City of Lubbock shall be required to pay, collect or remit any user fee on water received by Consumer/User, then the user fee that is not included in the rates under this Contract will be added to the charges otherwise payable to the City of Lubbock and shall be the responsibility of Consumer/User. 3.3 SANITARY CONTROL A Reduced Pressure Zone (RPZ) prevention device or air gap shall be maintained at all times by the Consumer/User at the Point of Delivery (i.e., between the two (2) systems). Where applicable, all costs associated with the installation and maintenance of this backflow prevention device shall be the sole responsibility of the Consumer/User. The plans for the installation of such RPZ prevention device or air gap shall be approved in writing by the City of Lubbock and any and all regulatory agencies with appropriate jurisdiction, including the TCEQ. If a backflow device is installed, it shall be tested upon installation, annually (no more than 365 days) and as needed. If the backflow device fails test parameters, the device must be repaired or replace before with a passing backflow teste prior water service is allowed to resume. At no time shall a by-pass be installed on or around the backflow prevention device. Consumer/User may allow service by direct pressure, if available, from the PROVIDER'S City of Lubbock's line to the Point of Delivery. However, the City of Lubbock is under no obligation to provide water at any pressure above and over pressures necessary to deliver the quantities of water described in Section 2.2, above. Consumer/User shall permit personnel of the City of Lubbock to enter upon the property of Consumer/User for the purpose of inspecting any and all facilities of Consumer/User regarding necessary sanitary controls. Should the City of Lubbock have reasonable grounds to believe that any condition exists which might result in contamination of the City of Lubbock's water supply or jeopardize the City of Lubbock's certification with the Texas Commission on Environmental Quality (TCEQ) and/or other federal, state or local regulatory authorities, then the City of Lubbock shall notify Consumer/User. The Consumer/User shall immediately correct such condition. In the event Consumer/User fails to correct such condition then the City of Lubbock may, at its sole discretion, either correct the condition at Consumer/User's expense and include the cost of materials and labor in subsequent billing statements from the City of Lubbock to Consumer/User or cease delivering water under this Contract until such condition is corrected to the satisfaction of the City of Lubbock. In the event the City of Lubbock determines that contamination of City of Lubbock's water supply actually exists, the City of Lubbock shall have the absolute right to discontinue service to Consumer/User until such time as said contamination has been eliminated by Consumer/User. Nothing herein shall be construed to impose upon the City of Lubbock the duty and obligation to make any inspection or to regulate the quality of water beyond the Point of Delivery to Consumer/User and Consumer/User shall be solely responsible for the operation, maintenance, regulation and employment Page 6 of 14 of all facilities beyond the Point of Delivery, and the regulation of the use of all water received by it at the Point of Delivery. The Consumer/User water system operators should be aware that any water received from the City of Lubbock will contain chloramines disinfectant. As such, the Consumer/User should adjust their disinfection system operations and monitoring for chloramines accordingly. Since 1983, the City of Lubbock has utilized chloramines as its water system disinfectant. This practice is common for larger cities in Texas and the United States. The use of chlorines reduces the levels of disinfection byproducts (DBPs) in the system, while providing protection from waterborne disease. If these chloramines are passed on to the water customers of the Consumer/User, the Consumer/User is solely responsible for providing the following notice: Chloramines can cause problems to persons dependent on dialysis machines. A condition known as hemolytic anemia can occur if the disinfectant is not completely removed from the water that is used for the dialysate. Consequently, the pretreatment scheme used for dialysis units must include some means, such as a charcoal filter, for removing the chloramines. Medical facilities should also determine if additional precautions are required for other medical equipment. Chloraminated water may be toxic to fish. Fish tank owners, must make sure that the chemicals or filters used are designed for use in water that has been treated with chloramines. The type of filter used for f sh tanks may also need to be changed. 3.4 INSURANCE REQUIREMENT FOR BACKFLOW PREVENTION DEVICE Consumer/user shall procure and maintain until all of their obligations pursuant to this Contract have been discharged, insurance against claims for injury to persons or damage to property that may arise from or in connection with the backflow prevention device described in Section 3.3, above. The insurance requirements herein are minimum requirements for this Contract and in no way limit the indemnity covenants contained in this Contract. The City of Lubbock in no way warrants that the minimum limits contained herein are sufficient to protect the Consumer/user from liabilities that might arise under this Contract. Consumer/user is free to purchase additional insurance as may be determined necessary. Consumer/user shall provide coverage with limits of liability not less than those stated below: Commercial General Liability Contract shall include bodily injury, property damage and broad form contractual liability coverage. General Aggregate $2,000,000 Products — Completed Operations Aggregate $1,000,000 Page 7 of 14 Each Occurrence $1,000,000 The Contract shall be endorsed to include the City of Lubbock as an additional insured with respect to liability arising out of the backflow prevention device connection and delivery of water supply under the provisions of this Contract. Consumer/user shall furnish the City of Lubbock with certificates of insurance as required by this Contract. The certificates for each insurance Contract are to be signed by a person authorized by that insurer to bind coverage on its 3.5 WATER CONSERVATION In the event the City of Lubbock is required to implement its Drought and Emergency Contingency Plan for its system then the Consumer/User shall receive the same water allotment under such plan as any other customers of similar size and water needs served by the City of Lubbock. Consumer/User shall adopt, develop, implement and maintain water conservation and drought contingency plans, programs, and rules incorporating loss -reduction measures and management practices, techniques, and technologies. These water conservation and drought contingency plans, programs, and rules shall be at least as promotional of conservation as the plans, programs, and rules as developed and adopted by the City of Lubbock, as determined by the City Council of the City of Lubbock. Such plans shall be designed to reduce the consumption of water, reduce the loss or waste of water, improve the efficiency in the use of water, and increase the recycling and reuse of water in a manner that at a minimum reflects the plans, programs, and rules as developed and adopted by the City of Lubbock. The Consumer/User will at all times practice due diligence and monitoring of water for beneficial use. The Consumer/User will establish and enforce its water conservation and drought contingency plan, program, and rules, and the Consumer/User will make annual reports on its enforcement efforts to the City of Lubbock. Consumer/User shall develop and implement a water conservation plan or water conservation measures using the applicable elements of Title 30, Chapter 288, of the Texas Administration Code, and any successor regulations thereto. The City of Lubbock's obligations under this Contract shall be subject to water conservation plans and drought and emergency contingency plans adopted by the Lubbock City Council or required or approved by the TCEQ, or any other or additional federal, state, or local regulatory district or entity with power to require or approve water conservation and drought and emergency contingency plans. 3.6 INSPECTION AND AUDIT Complete records and accounts are to be maintained by each party heretofor a period required by law or five (5) years, whichever is greater. Each party shall at all times, upon notice, have the right at reasonable times to examine and inspect said records and accounts during normal business hours. Further, if required by law, rule or regulation, make said records and accounts available to federal and/or state auditors. Page 8 of 14 ARTICLE IV DEFAULTS AND REMEDIES 4.1 NOTICE OF DEFAULT In the event that either the City of Lubbock or Consumer/User should breach, fail to comply with or violate any term or provision of this Contract (a "Default") the other party shall promptly notify, with specificity as to the alleged Default, the other respective party of the Default. Except as otherwise provided by this Contract, upon receiving such notice the defaulting party shall have thirty (30) days to cure the Default. Unless this Contract provides otherwise, in the event said Default is not cured within the time period described above, with respect to Consumer/User as the defaulting party, then the City of Lubbock may pursue any and all remedies provided by law, equity, contract or otherwise, including without limitation, declaring this Contract terminated and null and void. Unless this Contract provides otherwise, in the event said Default is not cured within the time period described above, with respect to the City of Lubbock as the defaulting party, then Consumer/User may, as its sole and exclusive remedy, either seek specific performance of the terms of this Contract or declare this Contract terminated and null and void. ARTICLE V MUTUAL CONDITIONS 5.1 FAILURE TO DELIVER The City of Lubbock does not warrant that the services and deliveries provided for in this Contract will be free from, and the City of Lubbock is excused from, performing hereunder in the event and for the period of, an interruption or stoppage caused by maintenance, repair, substitution, renewal, replacement or improvement of any of the equipment involved in the furnishing of any such services or deliveries of water or caused by floods, drought, alterations, strikes, lockouts, shortages of equipment or material, labor controversies, accidents, or acts of God, the elements, or any other event of force majeure or cause beyond the reasonable control of the City of Lubbock. In the event of a shortage of water, or if distribution of water by the City of Lubbock to Consumer/User is deemed inappropriate by any regulatory agency or law, the supply of water to Consumer/User under this Contract shall be reduced or ceased as deemed necessary by the City of Lubbock to protect the interests of its citizens and/or to comply with all rules and regulations of any regulatory agency having jurisdiction over the operation of the City of Lubbock's facilities. 5.2 NO ASSIGNMENT All the promises, undertakings, agreements, covenants and contracts herein contained by or on behalf of either the City of Lubbock or Consumer/User shall bind the successors and permitted assigns of either party, whether so expressed or not; but neither the City of Lubbock nor Consumer/User shall have the right to assign this Contract, without the written consent of the other party. Page 9 of 14 5.3 ENTIRETY AND AMENDMENTS It is expressly stipulated that the City of Lubbock and it's agents have made no representations, warranties or promises with respect to the delivery of water and all other matters contained in this Contract, except as herein expressly set forth, and this Contract supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. This Contract may only be amended by an instrument in writing executed by the duly authorized representative of the party against whom the amendment is sought to be enforced. 5.4 WAIVER No failure on the part of the City of Lubbock at any time to require the performance by Consumer/User of any portion of this Contract shall in any way affect the City of Lubbock's right to enforce such provision or any other provision. Nor shall any waiver by the City of Lubbock of any provision hereof be taken or held to be a waiver of any other provision hereof or any other breach hereof. No rights under this Contract may be waived except by written amendment executed and authorized by the governing bodies of the parties. No officer or agent of the City of Lubbock or the Consumer/User is authorized to waive or modify any provision of the Contract. 5.5 REGULATORY AGENCIES This Contract is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Contract shall be construed as a waiver by any party to the Contract of any right to question or contest any law, order, rule or regulation which may affect the terms and conditions of the Contract in any forum having jurisdiction, and the Consumer/User and the City of Lubbock each agree to make a good faith effort to support proposed laws and regulations which would be consistent with the performance of this Contract in accordance with its terms. The Consumer/User represents and warrants to the City of Lubbock that it has obtained and will maintain during the term of its wholesale water supply contract all necessary permits and consents to supply water to the Consumer/User. 5.6 HEADINGS All headings in this Contract have been inserted for convenient reference only and shall not in any manner be construed as modifying, amending, or affecting in any way the express terms and provision hereof. 5.7 LIABILITY AND HOLD HARMLESS CONSUMER/USER SHALL INDEMNIFY, TO THE FULLEST EXTENT PERMITTED BY LAW, AND HOLD HARMLESS AND RELEASE THE CITY OF LUBBOCK FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, LOSSES, DAMAGES OR LIABILITIES, OF ANY KIND OR NATURE, WHICH ARISE DIRECTLY OR INDIRECTLY, OR ARE RELATED TO, IN ANY Page 10 of 14 WAY, MANNER, OR FORM, THE ACTIVITIES CONTEMPLATED HEREUNDER OR OMISSION OF SUCH ACTIVITIES, INCLUDING WITHOUT LIMITATION, SUCH LOSSES, DAMAGES, CLAIMS OR LIABILITIES ARISING FROM OR RELATED TO, IN ANY WAY, MANNER, OR FORM, THE NEGLIGENCE OR FAULT OF THE CITY OF LUBBOCK, ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS, AGENTS AND/OR DESIGNEES. 5.8 NOTICE Except for notification of the possibility of curtailment or intent to curtail or cease the delivery of water, which shall be communicated in person to the unit warden or designee, by telephone to the unit warden or designee, or by email to the unit warden or designee. All communication required or allowed by this Contract shall be in writing and be given either (i) in person or by telephonic facsimile; or (ii) by depositing the notice in the United States mail, postpaid and certified, with return receipt requested, and addressed to the party to be notified. Notice, as herein provided, shall be conclusively deemed to have been provided (i) in the event of delivery in person or by telephonic facsimile, when it is actually received; or (ii) in the event of certified mail, as described above, three (3) days after the notice is deposited in the mail, certified mail, return receipt requested. For the purposes of the notice, the addresses for receipt of notice to the parties is set forth immediately below. Lubbock -Cooper ISD ATTN: Superintendent 16302 Loop 493 Lubbock, Texas 79423 Phone: (806) 863-7100 Facsimile: (806) 863-7130 Email: ddavis@lcisd.net City of Lubbock ATTN: Director of Water Utilities P.O. Box 2000 Lubbock, Texas 79457 Phone: (806) 775-2585 Facsimile: (806) 775-3027 Email: aspear@mylubbock.us Either party may change its address by giving written notice of the change to the other party at least fifteen (15) days before the change becomes effective. 5.9 AUTHORITY Consumer/User represents and warrants to the City of Lubbock that it is a school district and political subdivision of the State of Texas and is authorized to enter into this Contract and perform each and every term and provision of this Contract, and will continue to be duly authorized to so perform during the term hereof. Page 11 of 14 5.10 PARTIAL INVALIDITY In the event one or more of the provisions contained in this Contract shall be invalid, illegal or unenforceable in any respect under any law, rule or regulation, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. 5.11 CURRENT REVENUES Each party paying for performance under this Contract shall make all payments from current revenues available to the paying party. The parties understand and acknowledge that the funding of this Contract is contained in each party's annual budget and is subject to the approval of each party in each fiscal year. The parties further agree that should the governing body of either the City of Lubbock or the Consumer/User fail to approve a budget which includes sufficient funds for the continuance of this Contract, or should fail to certify funds for any reason, then and upon the occurrence of such event, this Contract shall terminate as to that party, and the party shall then have no further obligation to the other party. When the funds budgeted or certified during any fiscal year by a party to discharge its obligations under this Contract are expended, any other party's sole and exclusive remedy shall be to terminate this Contract. 5.12 EFFECTIVE DATE This Contract shall be effective and binding between the parties hereto as of the date of execution by the City of Lubbock. 5.13 VENUE AND APPLICABLE LAW THIS CONTRACT IS SUBJECT TO ALL PRESENT AND FUTURE VALID LAWS, ORDERS, RULES AND ORDINANCES AND/OR REGULATIONS OF THE UNITED STATES OF AMERICA, THE STATE OF TEXAS, THE CITY OF LUBBOCK, THE CONSUMER/USER, AND ANY OTHER REGULATORY BODY HAVING JURISDICTION. THIS CONTRACT SHALL BE CONSTRUED AND GOVERNED ACCORDING TO THE LAWS OF THE STATE OF TEXAS. THE SOLE VENUE FOR ANY ACTION, CONTROVERSY, DISPUTE OR CLAIM ARISING UNDER THIS CONTRACT SHALL BE IN A COURT OF APPROPRIATE JURISDICTION IN LUBBOCK COUNTY, TEXAS EXCLUSIVELY. 5.14 NON-ARBITRATION/RIGHTS AND REMEDIES RESERVED: The City of Lubbock reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City of Lubbock shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict Page 12 of 14 between this provision and another provision in, or related to, this Contract, the former shall control. 5.15 PUBLIC INFORMATION This Contract is public information. To the extent, if any, that any provision of this Contract is in conflict with Tex. Gov't. Code Ann. Chapter 552 et seq., as amended (the "Texas Public Information Act") the same shall be of no force and effect. 5.16 NO THIRD -PARTY BENEFICIARIES This Contract is entered solely by and between, and may be enforced only by and among the Parties. Except as set forth above, this Contract shall not be deemed to create any rights in or obligations to any third parties. 5.17 NO PERSONAL LIABILITY Nothing in this Contract is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Contract. 5.19 NO JOINT ENTERPRISE This Contract is not intended to, and shall not be construed to create any joint enterprise between or among the parties. 5.20 SOVEREIGN IMMUNITY ACKNOWLEDGED AND RETAINED THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT NO PROVISION OF THIS CONTRACT IS IN ANY WAY INTENDED TO CONSTITUTE A WAIVER BY ANY PARTY OF ANY IMMUNITIES FROM SUIT OR LIABILITY THAT A PARTY MAY HAVE BY OPERATION OF LAW. THE PARTIES RETAIN ALL GOVERNMENTAL IMMUNITIES. INTENTIONALLY LEFT BLANK Page 13 of 14 Signed this the 11 th day of May CITY OF LUBBOCK BY: Daniel M. Pope, Mayor ATTEST: 4 � A-K-A RebJcca Garza, City Secr ary VED AS TOXONTENT: n, P.E., Director of Public Works Aubrey A. ear, P.E., Di for of Water Utilities APPROVED AS TO FORM: Amy ims, Deputy City Attorney 2021. LUBBOCK-COOPER ISD BY: Paul Ehlers, President ATTEST: aAC60taryp- . -bblcuo j Cusvo i lamva vae.-'estda K.F Page 14 of 14 Exhibit A Point of Delivery - Water - Lubbock -Cooper ISD Woodrow Campus rT H1yMiF� in —176T1I A. Mir.4 by lister bl1, 6 *.WI On. rrr.n..rfN C.rn—nfCrr, LL6 rM.n Ir Or I.fae.Wul r.rr.fn..d .q rf tt.rekn. rrfr.rr fw.r N akJk f«kcal, rglwrNq,.r r.r.sylq r.rr..a 11 e.n wf nrnrr.f u r 1Yq W-r.ney.r rfrrae.b rlyfN yrr.J.ne rAnkekeer.f rrgrteuka AN W+E tlt � �Yf s Legend Q Point Of Delivery Lubbock -Cooper ISD Water Line City Limits Service Boundary Roads/Streets 0 0.5 1 Miles City of Lubbock TEXAS