HomeMy WebLinkAboutResolution - 3150 - Contract & Agreement - LCWC, & Improvement Dirstrict #1 - Water Service - 07_13_1989Resolution # 3150
July 13, 1989
Item #26
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RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock a Contract and
Agreement by and between the City of Lubbock and the Lubbock County Water
Control and Improvement District No. 1, attached herewith, which shall be
spread upon the minutes of the Council and as spread upon the minutes of this
Council shall constitute and be a part of this Resolution as if fully copied
herein in detail.
Passed by the City Council this 13th day of July 1989.
C
B.C. MCMINN, YOR
APPROVED AS TO CONTENT:
. Robert Massengale, Assistant
City Manager for Financial Services
APPROVED AS TO FORM:
John C. Ross, Jr., City Attorney
STATE OF TEXAS
COUNTY OF LUBBOCK
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KNOW ALL MEN BY THESE PRESENTS:
This Contract is made by and between the City of Lubbock (herein
called "CITY"), a municipal corporation located in Lubbock
County, acting by and through its undersigned duly authorized
mayor as authorized by specific action of its City Council; and
the Lubbock County Water Control and Improvement District No. 1
(herein called "WHOLESALE CUSTOMER"), a conservation and
reclamation district in Lubbock County, acting by and through its
undersigned duly authorized president, as authorized by specific
action of its Board of Directors.
1. RECITALS
1-1. This Contract is made to provide access to CITY'S
existing water system and to define the terms and
conditions under which the CITY will construct and
maintain water system capacity adequate to provide a
specific volume of water for wholesale CUSTOMER'S water
system to make water available for property located
within the corporate limits of the Village of Buffalo
Springs, Texas as of January 1, 1988.
1-2. This Contract is entered into in compliance with the
settlement and compromise agreement between CITY and
WHOLESALE CUSTOMER of even date herewith.
For and in consideration of the mutual agreement, covenants,
obligations, and benefits of this Contract, the CITY and
WHOLESALE CUSTOMER contract and agree as follows.
2. DEFINITIONS
All words and phrases used in this Contract shall be
construed and interpreted in accordance with accepted
construction and usage in the operation of municipally -
owned water utilities at the time this Contract is
signed.
3. WHOLESALE CUSTOMER APPLIES FOR WATER SERVICE
WHOLESALE CUSTOMER makes application to CITY that it
furnish water service by providing access to its
existing water system and by constructing and
maintaining water system capacity adequate to provide
water service to WHOLESALE CUSTOMER'S water system for
the property described in this Contract.
4. TERMS, PROVISIONS AND CONSIDERATIONS
CITY will furnish such service described in paragraph 3
above and will perform as required by the terms of this
Contract in consideration of the commitments made by
WHOLESALE CUSTOMER to CITY and to each other under the
terms of this Contract. The wholesale water ordinance
passed by the CITY to implement this Contract will be
binding on both parties.
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And the Parties agree to additional terms and conditions as
follows:
5. CITY SHALL FURNISH CERTAIN WATER SYSTEM FACILITIES AND
WHOLESALE CUSTOMER SHALL COMPLY WITH CERTAIN CONDITIONS
OF SERVICE; MUTUAL CONDITIONS; TERM
6-1. CITY Shall Furnish Facilities
The CITY shall furnish its existing water system
facilities and additional water system facilities as
are necessary to provide water service to WHOLESALE
CUSTOMER'S water system for the property herein
described under such conditions as are provided as
follows:
6-1.1. Ouality and Treatment
Potable water of similar quality supplied to citizens
and residents of the City of Lubbock, Texas treated by
disinfectants and such other treatment as may in the
future be directed by the City Council of the City of
Lubbock and meeting the applicable quality standards of
the Texas State Department of Health and other local,
State and Federal governmental agencies at the point of
delivery hereinafter provided during the term of this
Contract or of any renewal or extension thereof. CITY
may furnish such supply out of surface water, ground
water, or both, at its discretion.
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6-1.2. Ouantity
Quantities of water as may be required by WHOLESALE
CUSTOMER not to exceed any of the following
limitations:
720,000 gallons during any 24-hour period of time; or
262,800,000 gallons during any 365-day period of time,
as measured at the point of delivery. CITY shall
install a metering station at the point of delivery and
at its option may include in such metering station the
following devices: (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, said devices being operable by CITY at the master
metering station and remotely from within CITY.
WHOLESALE CUSTOMER shall be entitled to inspect, test,
and examine this metering station and equipment at
reasonable times. The volumes specified in this
paragraph shall be subject to and limited by the CITY'S
power to conserve and ration water as provided by
Sections 6-2.6 and 6-3.1 of this Contract and shall be
made available upon completion of facilities necessary
or convenient to deliver the water from the CITY'S
existing facilities to the WHOLESALE CUSTOMER'S Well
No. 4 at the location shown on Exhibit "A", attached
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hereto and made a part hereof for all purposes. It is
anticipated that completion of such facilities shall be
on or about July 15, 1989.
6-1.3. Point of Delivery and Pressure.
Water at a reasonably constant flow rate calculated to
meet maximum daily demand at a constant pressure of not
less than 20 pounds per square inch at meter located at
the point of delivery. Point of delivery as used in
this Contract shall mean the point at which the water
supplied under this Contract passes through the meter
described in Section 6-1.2 of this Contract and exits
said meter into the facilities owned or operated by
WHOLESALE CUSTOMER as shown in Exhibit "A", attached
hereto and made a part hereof.
6-1.4. Metering Equipment
Installation and maintenance, at its own expense at the
point of delivery, of the necessary metering equipment
and required devices of standard type for properly
measuring the quantity of water delivered to the
WHOLESALE CUSTOMER and calibration of such metering
equipment within a reasonable time after request by the
WHOLESALE CUSTOMER, but not less frequently than once
every twelve (12) months, or more frequently than once
every three (3) months. A meter registering not more
than three percent (3%) above or below the test result
6-1.5.
shall be deemed to be accurate. The previous readings
of any meter disclosed by test to be inaccurate 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
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 data available.
The metering equipment register shall be read by the
CITY at least once a month.
Billing Procedure
A monthly statement of the amount of water determined
to be consumed by WHOLESALE CUSTOMER through the meter
described in Section 6-1.2 of this Contract during the
preceding month shall be mailed to WHOLESALE CUSTOMER.
All statements for water so consumed shall be due and
payable fifteen (15) days after the issuance of said
statement. A late payment charge of five percent (5%)
shall be charged to WHOLESALE CUSTOMER if said customer
fails to pay its bill on or before the fifteenth (15)
day from date of issuance.
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In the event WHOLESALE
CUSTOMER fails to pay its statement in full on or
before the expiration of thirty (30) days from the date
of issuance of said statement than in such event
interest shall be added to said statement at the
maximum lawful rate of interest on prejudgment debts in
the State of Texas from such date aforementioned until
said statement is paid in full. If payment is not
received by the CITY within thirty (30) days after the
due date, the statement shall be deemed delinquent.
The CITY shall notify the WHOLESALE CUSTOMER in writing
when any such payment shall become delinquent, and if
such delinquency is not removed within thirty (30) days
after the sending of such written notice, the CITY may,
at its discretion, cease supplying water to the
WHOLESALE CUSTOMER under the terms of this Contract or
exercise its lien upon WHOLESALE CUSTOMER'S revenues as
provided by this Contract (see paragraph 8). After
water has ceased to be supplied, the CITY may, at its
discretion, notify the WHOLESALE CUSTOMER of its
intention to declare this Contract forfeited and null
and void. Upon such notice, the WHOLESALE CUSTOMER
shall have thirty (30) days to pay all delinquent
charges, reconnect charges, and penalties in order to
reinstate water supplies prior to final action by CITY
declaring this contract forfeited and null and void.
As used in this section reconnect charges shall be
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fifteen dollars for such service made before 5:00 P.M.
on any weekday and twenty five dollars for such service
rendered after 5:00 P.M. on any weekday. No penalties
exist at the time of the execution of this agreement
for such service, however, if CITY in the future
determines to add such a penalty then WHOLESALE
CUSTOMER agrees to pay the penalty adopted by the CITY
for customers within the same class as WHOLESALE
CUSTOMER.
Should WHOLESALE CUSTOMER disagree with the monthly
statement it shall take the following action:
(a) Within the fifteen (15) days after receipt of
the statement it shall notify CITY in writing
of its points of disagreement.
(b) Within fifteen (15) days from receipt of the
writing from WHOLESALE CUSTOMER setting forth
its points of dispute CITY shall test the
meter at point of delivery and WHOLESALE
CUSTOMER may be present during such testing.
(c) If the test as outlined in subparagraph (b)
above shows that the statement for water
delivered to WHOLESALE CUSTOMER was based on
meter reading and such meter was registering
not more than three percent (3%) above or
below the test results for such meter as
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described in Section 6-1.4 of this agreement
then in such event WHOLESALE CUSTOMER shall
pay the statement rendered to it.
(d) If the test as outlined in subparagraph (b)
above shows that the statement for water
delivered to WHOLESALE CUSTOMER was based on
meter readings and such meter was registering
more than three percent (3%) above or below
the test results for such meter as described
in Section 6-1.4 of this agreement then in
such event an adjustment shall be made to the
statement in favor of WHOLESALE CUSTOMER if
more than three percent (3%) in excess of the
test meter results and in favor of CITY if
the meter readings are more than three
percent (3%) below the test meter results.
(e) A period of thirty (30) days shall be added
to the time requirements allowing for the
forfeiture of this Contract when the testing
procedure has been conducted as described in
subparagraphs (a) through (d) of this
section.
6-2. Conditions of Service
WHOLESALE CUSTOMER shall comply with continuing
conditions of receiving service as follows:
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6-2.1. Wholesale Customer's Facilities
WHOLESALE CUSTOMER agrees and understands that it will
install and maintain at its sole expense all facilities
necessary for WHOLESALE CUSTOMER to operate its water
system from the point of delivery as described in this
Contract and that the City of Lubbock shall be under no
obligation whatsoever to bear any of said expenses
aforementioned. The design and construction of the
facilities between the meter and the air gap shall be
subject to review and approval by CITY. After the
installation of the facilities, to be installed by
CITY, WHOLESALE CUSTOMER shall at all times maintain an
"air gap" on its side of the point of delivery and
shall not alter, modify or improve its facilities in
any way which will affect the "air gap" without prior
written notice to CITY. The design and construction of
the facilities, and any repairs, modifications, or
improvements to the facilities shall comply with all
federal, state, and local regulatory requirements.
6-2.2. Rates and Payment Date
Pay to the CITY no later than the due date specified in
the statement for water delivered pursuant to the terms
of this Contract those charges for wholesale water as
set forth within said statement. The charges for
wholesale water shall be in accordance with the rates
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for WHOLESALE WATER CUSTOMERS outside the city limits,
established by Ordinance of the City Council of the
City of Lubbock, for the class of customer hereinabove
mentioned, which Ordinance will be filed for public
record with the City Secretary of the City of Lubbock
and reference to which is hereby made as if fully set
forth herein. The Ordinance establishing rates for the
service hereinabove mentioned may be, from time to
time, modified or amended and in the event of such
modification or amendment the reference to the
Ordinance above set forth shall be construed so as to
apply to the last modification or amendment. The rate
shall be based upon estimates of WHOLESALE CUSTOMER'S
proportionate share of operations and maintenance
expenses, capital, and capital -related expenses of the
CITY'S Water System as described by the methodology
shown in Exhibit "B", attached to this Contract. In
the event the Ordinance establishing the rates for
water delivered pursuant to this Contract is modified
or amended and such modification or amendment results
in a new or revised rate applicable to sales under this
Contract then in such event, CITY shall furnish
WHOLESALE CUSTOMER with a revised rate not less then
forty-five (45) days prior to the effective date
thereof together with the costs and tables used in
calculating the rate, as per example outlined in
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Exhibit "B", attached hereto. The rates charged do not
imply nor include service by the CITY beyond the CITY'S
point of delivery; it being the intent of this Contract
that all expenses on WHOLESALE CUSTOMER'S side of the
point of delivery as defined in this Contract shall be
the sole expense of WHOLESALE CUSTOMER.
Nothing in this Contract shall be construed as
constituting an undertaking by CITY to furnish water
to WHOLESALE CUSTOMER except pursuant to the terms of
this Contract. WHOLESALE CUSTOMER stipulates and
agrees that the rates and policies specified in this
Contract are just and reasonable. WHOLESALE CUSTOMER
rates will not be higher than any other customer of the
same classification.
6-2.3. Advance Deposit
Make an advance deposit in the amount of $5,000.00 cash
or by letter of credit in like amount approved by CITY
which sum is considered to be reasonably adequate to
secure WHOLESALE CUSTOMER'S future monthly water
charges during the first twelve (12) months after this
Contract is signed on behalf of CITY. The initial
deposit shall be paid prior to the CITY furnishing
water to WHOLESALE CUSTOMER. On or before the end of
the twelfth (12) month after this Contract is signed on
behalf of CITY and annually thereafter, upon request by
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CITY, WHOLESALE CUSTOMER shall deposit (within ten (10]
days of such request) any additional money with CITY
required to make the WHOLESALE CUSTOMER'S deposit equal
to the product of multiplying the WHOLESALE CUSTOMER'S
monthly bill, as averaged over the prior twelve (12)
month period, by a factor of three (3). This deposit
or letter of credit shall be collected and held by the
CITY for the term of this Contract and the deposit will
accrue interest at 6% in favor of the WHOLESALE
CUSTOMER during the time in which it is retained by the
CITY. In the event that WHOLESALE CUSTOMER has paid
its account in accordance with the terms of this
Contract for a period of five (5) years from its
execution, then in such event the cash deposit or
letter of credit shall be returned to WHOLESALE
CUSTOMER and no further deposit shall be required.
6-2.4. Service To and Definition of Retail Customers
Limit service to retail customers within the defined
service area of the WHOLESALE CUSTOMER as shown on
Exhibit "A", attached hereto unless the parties agree
in writing for service to others. A retail customer is
defined as a single or multiple family dwelling, or a
commercial customer. For purposes of this Contract, a
commercial customer is a customer of WHOLESALE CUSTOMER
which uses the water for purposes other than household
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use. Notwithstanding anything contained herein to the
contrary a retail customer shall not include a
political subdivision, corporation, partnership, or
individual engaged in the water supply business. The
WHOLESALE CUSTOMER shall prohibit the resale or
transfer of water delivered by the CITY under this
Contract by any of WHOLESALE CUSTOMER'S retail
customers or members to any other party, unless the
written consent of the CITY is obtained in advance.
6-2.5. Sanitary Control
Maintain at all times an air gap between CITY'S
pressurized system and WHOLESALE CUSTOMER'S system of
not less than twice the diameter of the pipe at the
point of delivery. WHOLESALE CUSTOMER shall not allow
service by direct pressure from the CITY'S supply.
WHOLESALE CUSTOMER shall permit personnel of CITY to
enter upon the property of WHOLESALE CUSTOMER for the
purpose of inspecting any and all facilities to
determine whether WHOLESALE CUSTOMER is maintaining the
required air gap. Should CITY have reasonable grounds
to believe that any condition exists which might result
in contamination of CITY'S water supply or jeopardize
CITY'S certification with the State Health Department
or other federal, state or local regulatory
authorities, then CITY shall notify the WHOLESALE
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CUSTOMER and WHOLESALE CUSTOMER shall immediately
correct such condition. In the event WHOLESALE
CUSTOMER fails to correct such condition the CITY may,
at its sole discretion, which shall not be unreasonably
exercised, either correct the condition, at WHOLESALE
CUSTOMER'S cost, and include the cost of materials and
labor in subsequent billing statements from CITY to
WHOLESALE CUSTOMER or cease delivering water under this
Contract until such condition is corrected to the
satisfaction of the CITY. In the event the CITY
determines that contamination of CITY'S water supply by
WHOLESALE CUSTOMER exists, CITY shall have the absolute
right to discontinue service to WHOLESALE CUSTOMER
until such time as said contamination has been
eliminated by WHOLESALE CUSTOMER. Nothing herein shall
be construed to impose upon the CITY the duty and
obligation to make any inspection or to regulate the
quality of water beyond CITY'S metering point to
WHOLESALE CUSTOMER, and the WHOLESALE CUSTOMER shall be
solely responsible for the operation, maintenance,
regulation and employment of all facilities beyond the
metering point, and the regulation of the use of all
water received by it at the metering point.
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6-2.6. Water Conservation
In the event the CITY is required to implement a water
conservation and rationing plan for its system then in
such event WHOLESALE CUSTOMER shall receive the same
water allotment under such plan as any other wholesale
customer served by CITY. WHOLESALE CUSTOMER shall
cooperate with and assist CITY in developing,
implementing and maintaining water conservation plans,
programs, and rules incorporating loss -reduction
measures and management practices, techniques, and
technologies designed to insure that water made
available under this Contract is used in an
economically -sensitive manner and 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. WHOLESALE
CUSTOMER agrees that if water supplies or services are
curtailed within CITY, CITY may impose a like
curtailment on deliveries to WHOLESALE CUSTOMER and
WHOLESALE CUSTOMER will cooperate by imposing
conservation measures upon its sales. CITY'S
obligations under this Contract shall be subject to
water conservation plans and drought contingency plans
adopted by CITY or required or approved by the Texas
Water commission, the Texas Water Development Board, or
any other or additional federal, state, or local
If
regulatory authority with power to require or approve
water conservation and drought contingency plans.
6-2.7. Public Property
Authorize, to the extent capable under existing law,
CITY'S use of streets, alleys, and general utility or
other easements of the WHOLESALE CUSTOMER for
construction, operation and maintenance of the CITY'S
water system to point of delivery of water to WHOLESALE
CUSTOMER. If CITY'S water system is placed in, on,
above, or across any street, alley, or easement CITY
agrees to use reasonable efforts not to unreasonably
interfere with the lawful use of the street, alley, or
easement, but CITY shall have the right to temporarily
interfere with such usage when necessary or convenient
for the installation, inspection, repair or replacement
of the facilities. CITY shall restore lands, pavement
or improvements resulting from exercise of the rights
provided in this section, including the relocation of
any facilities located within any such easement, but
WHOLESALE CUSTOMER shall pay the cost of relocating any
of property belonging to WHOLESALE CUSTOMER or any
property belonging to any other utility company.
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6-2.8. Right of Entry
CITY is hereby authorized the right of entry at no cost
to inspect and maintain CITY facilities located within
or upon property of WHOLESALE CUSTOMER.
6-3. Mutual Conditions
6-3.1. Failure to Deliver
CITY does not warrant that the services provided for in
this Contract will be free from 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 caused by the changes of services,
alterations, strikes, lockouts, labor controversies,
accidents, or acts of God, the elements, or any other
cause beyond the reasonable control of CITY. In case
by reason of Force Majeure either party hereto shall be
rendered unable, wholly or in part, to carry out its
obligations under this Contract, to comply with
applicable federal, state, and local regulatory
authorities having or asserting jurisdiction over the
operation of WHOLESALE CUSTOMER'S water supply, and to
meet sanitary control requirements as hereinabove set
forth, then if such party shall give notice and full
particulars of each Force Majeure in writing to the
other party within a reasonable time after occurrence
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of the event or cause relied on, the obligation of the
party filing such notice, so far as it is affected by
such Force Majeure, shall be suspended during the
continuance of the inability then claimed, but for no
longer period, and such party shall endeavor to remove
or overcome such inability with all reasonable
dispatch. The terms "Force Majeurell as employed herein
shall mean, but without limitation, acts of God,
strikes, lockouts, or other industrial disturbances,
acts of public enemy, war, orders of any kind of the
Government of the United States or the State of Texas
or any civil or military authority, insurrections,
riots, epidemics, landslides, lightning, earthquakes,
fires, hurricanes, storms, floods, washouts, droughts,
arrests, restraint of government and people, civil
disturbances, explosions, breakage or accidents to
machinery, pipelines or canals, partial or entire
failure of water supply and inability on the part of
the CITY to deliver water hereunder, or of the
WHOLESALE CUSTOMER to receive water hereunder, on
account of any other causes not reasonably within the
control of the party claiming such inability. The
settlement of strikes and lockouts shall be entirely
within the discretion of the party having the
difficulty, and the above requirement that any Force
Majeure shall be remedied with all reasonable dispatch
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shall not require the settlement of strikes and
lockouts as according to the demands of the opposing
party or parties when such course is unfavorable in the
judgment of the party having the difficulty. In the
event of a shortage of water, or the supply of water
available to CITY is otherwise diminished, the supply
of water to the WHOLESALE CUSTOMER shall be reduced or
diminished in the same ratio or proportion as the
supply to other customers comparable to WHOLESALE
CUSTOMER is reduced or diminished. WHOLESALE CUSTOMER
shall not be entitled to receive water under this
Contract without making payment for same as required by
this agreement, however, WHOLESALE CUSTOMER shall have
the right to contest a bill for water service in
accordance with the provisions of Sec. 6-1.5 of this
Contract, which action will not affect the delivery of
water by CITY to WHOLESALE CUSTOMER which such dispute
is pending.
6-3.2. Regulatory Agencies
This Contract is subject to such rules and regulations
as may now exist and as may be adopted by the Texas
State Department of Health, State and Federal
governmental agencies, and such ordinances of the CITY
OF LUBBOCK that are passed that affect the rates
applicable to all customers and its water system or
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other ordinances passed by the CITY which are necessary
for the protection of the public health, safety or
welfare and which ordinances affect the CITY water
system and its customers, and CITY and WHOLESALE
CUSTOMER will collaborate in obtaining such permits and
certificates as may be required to comply therewith.
This Contract is subject to all applicable federal,
state and any applicable ordinances, rules, orders, and
regulations of any state or federal governmental
authority having or asserting jurisdiction including,
but not limited to, the rate -fixing power of the Texas
Water Commission. 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 this Contract in any forum
having jurisdiction, and WHOLESALE CUSTOMER and CITY
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.
6-3.3. Miscellaneous Conditions
All the situations, promises, undertakings and
Contracts herein contained by or on behalf of either
CITY or WHOLESALE CUSTOMER shall bind the successors
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and assigns of either party, whether so expressed or
not; but neither CITY nor the WHOLESALE CUSTOMER shall
have the right to assign this Contract, or any part
thereof except as hereinafter provided without the
written consent of the other party. WHOLESALE CUSTOMER
consents to an assignment of this Contract by CITY to a
water conservation and reclamation district created
under authority of TEX. CONST. art. XVI, § 59. Either
party may waive any default on the part of the opposite
party affecting any other provision of the Contract,
but a waiver of any one default shall not be deemed a
waiver of any other or subsequent default or defaults.
No delay by either party in enforcing any of its rights
under this Contract shall be deemed a waiver of such
rights. CITY and CITY'S agents have made no
representation or promises with respect to the water
supply or services except as herein expressly set
forth, and no rights, easements, entitlements, or
licenses are acquired by WHOLESALE CUSTOMER by
implication or otherwise except as expressly set forth
in this Contract.
6-3.4. Notice of Violation
In the event that either the CITY or the WHOLESALE
CUSTOMER should violate any of the terms of Paragraph
6, hereof the other party shall promptly notify the
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other respective party of the violation. Unless this
Contract provides otherwise, in the event said
violation is not cured within thirty (30) days after
the sending of such notice, the party sending the
notice may at its discretion notify the other party of
its intention to declare this Contract forfeited and
null and void. Except as otherwise provided by this
Contract, upon receiving such notice the delinquent
party shall have thirty (30) days to cure said
violation prior to final action by the other party
declaring this Contract forfeited and null and void.
Any notice required under the terms of this Contract
shall be in writing and shall be delivered by certified
mail, addressed to the CITY or the WHOLESALE CUSTOMER.
If the default cannot be cured within the thirty (30)
day period, the length of the period shall be extended
for a reasonable period of time, if the delinquent
party commences curing the violation within the thirty
(30) day period and continues the curing of the
violation with due diligence and continuity.
6-3.5. Title
Title to all water supplied hereunder shall be in the
CITY up to the point of delivery, at which point title
shall pass to the WHOLESALE CUSTOMER. Each of the
parties hereby agrees to save and hold each other party
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hereto harmless from all claims, demands, and causes of
action which may be asserted by anyone on account of
the transportation and delivery of said water while
title remains in such party.
6-4. Term of Contract
The term of this Contract shall be a period of thirty
(30) years from its effective date. WHOLESALE CUSTOMER
is given an option and contract for a like period
provided that at least twenty-four (24) months prior to
the expiration of the initial term of this Contract,
CITY and WHOLESALE CUSTOMER, in good faith begin to
negotiate another contract pertaining to purchase of
water from CITY by WHOLESALE CUSTOMER containing
mutually agreeable terms and conditions. If another
contract is not consummated, CITY shall not terminate
service until WHOLESALE CUSTOMER has had a reasonable
time (such time not to exceed two [2] years), in which
to procure alternate service and this Contract shall
remain in force until WHOLESALE CUSTOMER procures
alternative service or the expiration of two (2) years,
which ever event occurs first.
7. CUMULATIVE REMEDIES
Recognizing that failure in the performance of
WHOLESALE CUSTOMER'S or CITY'S obligations under this
Contract could not be adequately compensated in money
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damages alone, WHOLESALE CUSTOMER or CITY agree in the
event of any default on their part that CITY or
WHOLESALE CUSTOMER shall have available to them the
equitable remedy of mandamus and specific performance
in addition to any other legal or equitable remedies
(other than termination except as provided by this
Contract) which may also be available to CITY.
S. PLEDGE OF REVENUES
WHOLESALE CUSTOMER hereby pledges the gross revenues
from WHOLESALE CUSTOMER'S water system to the CITY to
pay the charges due CITY under this Contract, and in
the event of default, the CITY may exercise its rights
to such funds by any available procedure, provided the
source of the funds for WHOLESALE CUSTOMER'S payment to
CITY under this Contract shall not be limited to that
source of revenue. Unless otherwise specifically
provided in writing by subsequent agreement between
CITY and WHOLESALE CUSTOMER, City shall never have the
right to demand payment by WHOLESALE CUSTOMER of any
obligation assumed or imposed on it under and by virtue
of this Contract from funds raised or to be raised by
taxation of property. WHOLESALE CUSTOMER represents
and covenants that the services to be obtained pursuant
to this Contract are essential and necessary to the
operation of WHOLESALE CUSTOMER and its own water
25
facilities, and that all payments to be made hereunder
by it will constitute reasonable and necessary
"operating expenses" of the WHOLESALE CUSTOMER'S water
system, within the meaning of Article 1113, Vernon's
Texas Civil Statutes and any amendments thereto, if
appropriate, and the provisions of all ordinances
authorizing the issuance of all future bonds of the
WHOLESALE CUSTOMER which are payable from revenues of
the WHOLESALE CUSTOMER'S water system shall recognize
and recite this provision. WHOLESALE CUSTOMER agrees
to establish and collect such rates and charges for its
services to be supplied by its system as will make
possible the prompt payment of all expenses of
operating and maintaining its system including the
payments contracted hereunder, and the prompt payment
of the principal of and interest on its obligations, if
any, payable from the revenues of its water systems.
WHOLESALE CUSTOMER agrees that, in addition to all
other remedies provided herein or at law or in equity,
CITY shall be entitled to a writ of mandamus issued by
a court of competent jurisdiction compelling and
requiring WHOLESALE CUSTOMER to take all actions
covenanted herein and to make prompt payment of the
payments contracted to be made herein and to observe
and perform the covenants, obligations and conditions
imposed in this Contract.
26
The term gross revenues from WHOLESALE CUSTOMER'S water
system as used in this section shall mean all of the
revenues received by WHOLESALE CUSTOMER from the
operation of its water system less all reasonable
operating and maintenance expenses.
9. WAIVE
R
No failure on the part of either party at any time to
require the performance by the other party of any
portion of this Contract shall in any way affect the
innocent party's right to enforce such provision or any
other provision. Nor shall any waiver by the CITY 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 and no
modification or amendment to this Contract may be made
except by written amendment executed by the parties.
No officer or agent of WHOLESALE CUSTOMER or CITY is
authorized to waive or modify any provision of the
Contract. No modifications to or rescission of this
Contract may be made except by a written document
signed by CITY'S and WHOLESALE CUSTOMER'S authorized
representatives.
10. HEADINGS
All headings in this Contract have been inserted for
convenient reference only and shall not in any manner
27
be construed as modifying, amending, or affecting in
any way the express terms and provisions hereof.
11. OTHER CHARGES
In the event any sales or use taxes, or taxes or user
fee of any similar nature are imposed on gathering,
impounding, taking, sale, use, or consumption of the
water received by WHOLESALE CUSTOMER from CITY, the
amount of the tax or user fee allocable to WHOLESALE
CUSTOMER shall be borne by WHOLESALE CUSTOMER.
Whenever CITY shall be required to pay, collect, or
remit any tax or user fee on water received by
WHOLESALE CUSTOMER, then the tax or user fee, if not
included in the rates under this Contract, will be
added to the charges otherwise payable to CITY under
this Contract and WHOLESALE CUSTOMER shall promptly pay
or reimburse CITY for the tax or user fee in the manner
directed by CITY.
12. NOTICES
All notices, payments and communications ("notices")
required or allowed by this Contract shall be in
writing and be given by depositing the notice in the
United States mail postpaid and registered or
certified, with return receipt requested, and addressed
to the party to be notified. Notice deposited in the
mail in the previously described manner shall be
28
conclusively deemed to be effective from and after the
expiration of three (3) days after the notice is
deposited in the mail. Notice given in any other
manner shall be effective only if and when received by
an officer or the designated representative of the
party to be notified. For purposes of notice, the
addresses of the designated representatives for receipt
of notice for each of the parties shall be shown on the
signature pages of this Contract. 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.
13. PLACE OF PERFORMANCE
All amounts due under this Contract, including, but not
limited to, payments due under this Contract or damages
for the breach of this Contract, shall be paid or done
in Lubbock County, Texas, said Lubbock County, Texas,
being the place of performance agreed to be the parties
to this Contract. In the event that any legal
proceeding is brought to enforce this Contract or any
provisions hereof, the same shall be brought in Lubbock
County, Texas.
M1
14. APPLICABLE LAW
This Contract shall be construed under the laws of the
State of Texas and all obligations of the parties
hereunder are performable in Lubbock County, Texas.
WHOLESALE CUSTOMER hereby binds itself, its successors, assigns
and representatives for the faithful and full performance of the
terms and provisions of this Contract.
EXECUTED as of the % day of _, 1989.
LUBBOCK COUNTY WATER CONTROL
AND IMPROVEMENT DISTRICT NO. 1
ATTEST:
4Sectary
MAILING ADDRESS for notice:
Lubbock County Water Control
and Improvement District No. 1
Buffalo Springs Lake
Rt. 10, Box 400
Lubbock, Texas 79404
BY•
Preside
30
ACCEPTED AND EXECUTED as of the /3 d day of Zy,&;y , 1989.
THE CITY OF LUBBOCK
BY • �• e `
•B. C. MCMINV, MAYOR
ATTEST:
RAKE E BOYD, City Secr a
APPROVED AS TO FORM:
l
J N C. ROSS, JR., City Attor y
MAILING ADDRESS for notice:
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457
31
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EXHIBIT B
81.17% of the high volume rate for customers inside the City limits of
the City of Lubbock. The high volume rate shall be that rate charged
customers consuming more than 250,000 gallons of water per month. This
rate shall not increase more than five cents per thousand gallons during
the first twenty-four (24) months of this contract.
Any increase given to the rate over five cents in first twenty-four (24)
months will be passed on to the Lubbock County Water Control & Improve-
ment District No. 1 by dividing that increase by 5 and adding twenty
percent (20%) of such increase in each of years 3 through 7 of this con-
tract. Exhibit C attached hereto reflects the methodology which the
parties intend to use for any such increase. The rates used in Exhibit
C are for illustration purposes only.
District shall pay in cash the sum of $45,781 as its share of the capi-
tal improvements anticipated under this contract. Payment of this
$45,781 will be due upon first monthly billing.
L,C-x h fi "c "
LUBBOCK COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT #1
WATER BILLING PROPOSAL
t
CONS.
AGREED
ACCUMULATED
PAYMENT
TOTAL
EFFECTIVE
RATE
IN 000
ACTUAL
PAYMENT
PAYMENT
DEFICIT
OF DEFICIT
PAYMENT
RATE PER
DATE
Per M
GALS.
BILLING
RATE
(a)
(b)
(a+b)
M
06/01/89
- 09/30/89
0.7386
18,300
; 13,516.38
0.7386
$ 13,516.38
; 0.00
0.00
; 13,516.38
$0.74
10/01/89
- 09/30/90
$0.84
54,750
45,990.00
$0.76
41,774.25
(4,215.75)
0.00
41,774.25
$0.76
10/01/90
- 05/31/91
$0.94
36,450
34,263.00
$0.80
29,087.10
(9,391.65)
0.00
29,087.10
$0.80
06/01/91
- 09/30/91
$0.94
18,300
17,202.00
$0.80
14,603.40
(11,990.75)
0.00
14,603.40
$0.80
10/01/91
- 09/30/92
$1.04
54,900
57,096.00
$1.04
57,096.00
(9,592.75)
2,398.00
59,494.00
$1.08
10/01/92
- 09/30/93
$1.14
54,750
62,415.00
$1.14
62,415.00
(7,194.25)
2,398.00
64,813.00
$1.18
10/01/93
- 09/30/94
$1.24
54,750
67,890.00
$1.24
67,890.00
(4,796.25)
2,398.00
70,288.00
$1.28
10/01/94
- 09/30/95
$1.34
54,750
73,365.06
$1.34
73,365.00
(2,398.25)
2,398.00
75,763.00
$1.38
10/01/95
- 09/30/96
$1.44
54,900
79,056.00
$1.44
79,056.00
0.00
2,398.25
81,454.25
$1.48
$ 450,793.38
$ 438,803.13
$ 11,990.25
$ 450,793.38
Note: Consumption is assumed to be 150,000 gallons per day
Date prepared 04-07-89
THE STATE OF TEXAS AGREEMENT REGARDING LUBBOCK
COUNTY OF LUBBOCK WASTEWATER DISPOSAL PERMIT
This Agreement ("Release and Agreement") is made and
entered into by and between the City of Lubbock (herein
called "Lubbock"), a municipal corporation located in
Lubbock County, acting by and through its undersigned duly
authorized mayor, as authorized by specific action of its
City Council and the Lubbock County Water Control and
Improvement District No. 1 (herein called "District), acting
by and through its undersigned duly authorized president, as
authorized by specific action of its Board of Directors.
RECITALS
1. Lubbock filed an application with the Texas Water
Commission ("Commission") requesting an amendment to Permit
No. 10353-02 for authorization to modify its.sewage
treatment and disposal facilities;
2. District protested the application, alleging that
Lubbock's wastewater disposal practices impaired District's
water supply; and
3. Bonafide disputes and controversies exist between
the parties, both as to liability and the amount thereof, if
any, and by reason of such disputes and controversies the
parties hereto desire to compromise and settle all claims
and causes of action (if any) of any kind whatsoever which
District has arising out of the application, hereinabove
referred to, and the alleged impairment of District's water
supply as a result of Lubbock's wastewater disposal
operations and intend that the full terms and conditions of
the agreement be set forth in this document. The parties
hereto specifically agree that this release shall also be
construed to apply to any claim that District may assert now
or in the future when such claim or claims are based upon
alleged damage or injury in any way arising or attributable
to the migration of underground waters. Except as
aforementioned, this release shall not be construed so as to
release any claim or claims District may have as a result of
the City violating any term or condition of the wastewater
disposal permit granted to the City pursuant to its current
pending application to amend Permit No. 10353-02.
AGREEMENT
For and in consideration of the mutual promises,
covenants, obligations, and benefits described in this
Agreement and as further inducement for the City of Lubbock
executing a water supply contract with District, Lubbock and
District agree as follows:
2
Section 1. Withdrawal of Protest. Upon execution of
this Release and Agreement, District will file a motion with
the Commission requesting the dismissal of District's
protest of Lubbock's application. If District does not file
the motion within ten (10) days after the effective date of
this Agreement, District will be in default of this
Agreement and Lubbock may terminate this Agreement.
District, its assigns, successors, agents, servants and
employees, and all persons, natural or corporate, in privity
with it or any of them, hereby contract and agree that it
shall not interfere in any way with the application to amend
Permit No. 10353-02 issued by the Texas Water Commission or
any amendments to or renewals thereof to said Permit No.
10353-02 currently pending before the Texas Water Commission
which are necessary or required to secure the wastewater
disposal permit sought by City in the aforementioned permit
application.
Section 2. Public Property. Lubbock and District have
agreed upon a contract fixing terms of water service by
Lubbock to District including terms for the calculation of
rates to be charged for such service (the "Water Supply
Contract"). District authorizes, to the extent capable
under existing law, Lubbock's use of streets, alleys, and
general utility or other easements of District for
construction, operation and maintenance of Lubbock's water
3
system to point of delivery of water to wholesale customer.
In the event District does not currently have an easement
over, under, on or upon a public street, alley or other
right-of-way, whether public or private, it will assume the
affirmative duty to acquire such easement, at its cost, for
use by the City. If Lubbock's water system is placed in,
on, above, or across any street, alley, or easement, Lubbock
agrees to use reasonable efforts not to unreasonably
interfere with the lawful use of the street, alley, or
easement, but Lubbock shall have the right to temporarily
interfere with such usage when necessary or convenient for
the installation, inspection, repair or replacement of the
facilities. Lubbock shall restore lands, pavement or public
improvements resulting from exercise of the rights provided
in this section, including the cost of relocation of any
public facilities located within any such easement, but
District shall pay the cost of relocating any property
belonging to District or any public utility, if this cost is
not borne by City as aforesaid.
Section 3. No Interference. District, its assigns,
successors, agents, servants and employees, and all persons,
natural or corporate, in privity with it or any of them,
hereby contract and agree that they shall not interfere in
any way with the wastewater disposal projects authorized
under Permit No. 10353-02 issued by the Texas Water
4
Commission or any amendments to or renewals currently
pending thereof. District, its assigns, successors, agents,
servants and employees, and all persons, natural or
corporate, in privity with it or any of them, hereby
contract and agree that they shall not interfere in any way
with Lubbock's efforts to obtain authorization to discharge
treated effluent, provided the quality of the effluent meets
or exceeds the limitations described in Effluent Set 2-N in
Texas Water Commission Rule §309.4 as of the date this
Agreement is signed. City of Lubbock shall have the right
to enforce this provision in the event of its breach in the
District Court of Lubbock County, Texas, by pursuing any
legal or equitable remedy appropriate.
Section 4. Release. District, its successors,
assigns, and all persons, natural or corporate, in privity
with it has this day released and by these presents do
release, acquit, and forever discharge Lubbock, its
successors, assigns, agents, servants, and employees, and
all persons, natural or corporate, in privity with it, from
any and all claims or causes of action of any kind
whatsoever, at common law, in equity, statutory or otherwise
which District has, or might have, known or unknown, now
existing or that might arise hereafter, directly or
indirectly, attributable to occurrences or transactions
involving District's water supply, which have taken place
5
prior to this date (including any damages attributable to
migration of underground water either now or in the future).
Section 5. Effective Date. This Release and Agreement
shall take effect and be binding on each party as of the
date which execution of this Release and Agreement is made
by all parties hereto.
Section 6. Governing Law. This Release and Agreement
shall be enforced and construed in accordance with the laws
of the State of Texas.
Section 7. Agreement Prepared Jointly by Both Parties)
Attorneys. This Release and Agreement has been prepared by
the joint efforts of the respective attorneys for each of
the parties.
Section 8. Acknowledgment of Entire Release and
Agreement. Each party acknowledges that it has carefully
read this instrument, including all documents or instruments
that it refers to; that this instrument expresses the entire
Release and Agreement between the parties concerning the
subjects that it purports to cover; that each party has
executed the Release and Agreement freely and of his or her
own accord; and that it is expressly understood that the
terms hereof are contractual and not merely recitals.
6
Section 9. Partial Invalidity. If any provision,
word, phrase, clause, sentence or paragraph of this Release
and Agreement or the application thereof to any person or
circumstance is or shall ever be held by a court of
competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the Release and Agreement
and the application of such provision, word, phrase, clause,
sentence or paragraph or other part of this Release and
Agreement to other persons or circumstances shall
nevertheless survive and continue in full force and effect
without being impaired or invalidated in any way.
Section 10. No Admission of Liability. It is
expressly understood and agreed that the terms hereof are
contractual and not merely recitals and that the agreements
herein contained and the consideration transferred is to
compromise doubtful and disputed claims, avoid litigation,
buy peace, and that no payments made nor released or other
consideration given shall be construed as an admission of
liability, all liability being expressly denied.
Section 11. Acknowledgement of Release and Agreement.
District acknowledges and warrants that it has carefully
read this instrument, including all documents that it refers
to; that this instrument expresses the entire Release and
Agreement; that District fully understands this instrument
to be a compromise, settlement and release of all claims,
7
known or unknown, all as more fully described in paragraph 4
of this agreement. District acknowledges and warrants that
it has the authority and is legally competent to execute
this Release and Agreement, and that it does so of its own
free will and accord without reliance on any representation
of any kind or character not expressly set forth herein.
Section 12. Multiple Originals. This Release and
Agreement shall be executed in two (2) counterparts, both of
which shall, for all purposes, be deemed to be an original,
and all such counterparts shall together constitute and be
one and the same instrument.
EXECUTED as of the day of , 198 4--
LUBBOCK COUNTY WATER CONTROL
AND IMPROVEMENT DISTRICT NO. 1
BY,:
ATTEST:
1
Sec a ary
MAILING ADDRESS for notice:
Presiden
Lubbock County Water Control
and Improvement District No. 1
Buffalo Springs Lake
Rt. 10, Box 400
Lubbock, Texas 79404
8
ACCEPTED AND EXECUTED as of the
198q.
ATTEST:
Rane to Boyd, City Sec a
`APPROVED AS TO FORM:
ADDRESS for notice:
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457
13 day of jv/-.),� ,
THE CITY OF LUBBOCK
BY:
. C. MCKIM, MAYOR
9