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HomeMy WebLinkAboutResolution - 2006-R0308 - Wholesale Water Sales Interlocal Contract - Lubbock-Cooper ISD - 06_26_2006 (2)Resolution No. 2006-RO308 June 26, 2006 Item No. 5.18 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 Wholesale Water Sales Interlocal Contract, by and between the City of Lubbock and Lubbock -Cooper Independent School District, and all related documents. Said Wholesale Water Sales Interlocal Contract is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 26th day of June 2006. �.FOXAM, // by-N111-0721 mo 11 a a K WOOD' ATTEST: P,ebeica Garza, City Secretary APPROVED AS TO CONTENT: eputy City Manager APPROVED AS TO FORM: Richard K. Casner, First Assistant —City Attorney ml!ccdocs/LCISD Water Contract.res June 12, 2006 Resolution No. 2006-RO308 WHOLESALE WATER SALES INTERLOCAL CONTRACT STATE OF TEXAS § COUNTY OF LUBBOCK § KNOW ALL MEN BY THESE PRESENTS: This Contract is made by and between the CITY OF LUBBOCK (herein called "LUBBOCK"), a home rule municipal corporation located in Lubbock County, acting by and through its Mayor as authorized by specific action of its City Council; and the LUBBOCK- COOPER INDEPENDENT SCHOOL DISTRICT (herein called "DISTRICT"), an independent school district of the State of Texas, acting by and through its Board of Trustees. WITNESSETH: WHEREAS, the DISTRICT is an independent school district of the State of Texas, with boundaries located in part within the municipal limits of LUBBOCK; WHEREAS, citizens of LUBBOCK attend schools of the DISTRICT at the campus located outside of LUBBOCK, in or around the community of Woodrow, Texas, as depicted on Exhibit "A", attached hereto (the "Woodrow Campus"); WHEREAS, due to the expansion of the Woodrow Campus, and the rapid depletion of current wells providing potable water to the DISTRICT, the DISTRICT is in need of an alternative source of water for the Woodrow Campus; WHEREAS, Section 28-59(o of the Code of Ordinances of LUBBOCK permits LUBBOCK to sell wholesale water outside of its municipal boundaries to federal, state or local governments, governmental agencies or governmental subdivisions pursuant to appropriate intergovernmental contracts; WHEREAS, LUBBOCK is amenable to providing said wholesale water, subject to the conditions precedent and upon the terms and conditions of this Contract, to the DISTRICT; and WHEREAS, Chapter 791 of the Government Code authorizes LUBBOCK and DISTRICT to enter into this Contract. NOW THEREFORE, for and in consideration of the mutual agreements, covenants, obligations, and benefits herein expressed, LUBBOCK and DISTRICT contract and agree as follows: ARTICLE I PROVISION OF WATER 1.1. TERMS, PROVISIONS AND CONSIDERATIONS LUBBOCK agrees to sell and convey wholesale water to the DISTRICT, 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 LUBBOCK shall provide potable water of similar quality supplied to citizens and 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 quality standards of the Texas Commission on Environmental Quality and other local, State and Federal governmental agencies .at the Point of Delivery, as hereinafter defined, during the term of this Contract or of any renewal or extension thereof. LUBBOCK may furnish such WHOLESALE WATER SALES CONTRACT LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 2 supply out of surface water, ground water, treated wastewater or combination of same, at its discretion. LUBBOCK MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING WITHOUT LIMITATION, AS TO THE DESCRIPTION, VALUE, QUALITY, PHYSICAL CONDITION, MERCHANTIBILITY OR FITNESS FOR PURPOSE OF THE WATER SUBJECT TO THIS CONTRACT EXCEPT AS EXPRESSLY SET FORTH ABOVE. 2.2 CONSTRUCTION ACTIVITIES AND CONDITIONS PRECEDENT As presently constructed, it will be necessary to extend LUBBOCK'S presently existing water delivery infrastructure from the intersection of 98"' Street and Avenue P, south to Farm to Market Road 1585. The necessary Extension (herein so called) of LUBBOCK'S presently existing water delivery infrastructure, is approximately two (2) miles in length, to be constructed of sixteen inch (16") diameter pipeline, extending approximately from 98th Street and Avenue P, along Avenue P or the logical extension thereof, south to Farm to Market Road 1585, as approximately depicted on Exhibit "A", attached hereto. (a) Responsibilities of DISTRICT (i) DISTRICT shall pay to LUBBOCK, on or before the final completion date of the Extension, a one time capacity fee representing the proportionate or pro rata part of the Extension necessary to deliver water to DISTRICT as set forth herein. Such capacity fee shall be equal to: (A) the costs associated with LUBBOCK's obtaining the easements, rights -of - way, or other consents necessary to construct the Extension; (B) the cost of the Extension as if it had been constructed of a six inch (6") pipe line of the same type and material as that of the sixteen inch (16") pipe line of the Extension as constructed. Although DISTRICT shall pay the actual WHOLESALE WATER SALES CONTRACT LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 3 costs, as described above, such cost is estimated at this time to be Two Hundred Thirty -Two Thousand Three Hundred Twenty and No/100 Dollars ($232,320.00). So that such costs may be accurately determined, LUBBOCK may submit in its request for bids, the Extension as constructed of six inch (6") diameter pipe line as an alternative thereof or, alternatively, the cost of the six inch (6") pipe line shall be determined by the cost of the construction bid respecting the six inch (6") line to be constructed by DISTRICT from the Woodrow Campus to the Point of Delivery; and (C) the costs of the Extension necessary or required by the DISTRICT to obtain delivery of the wholesale water from LUBBOCK, as described in this Contract, including without limitation, the costs of all valves, stubs, meter fees, taps, and any and all other improvements or devices requested or desired by DISTRICT. (D) In addition to the costs described in paragraphs 2.2 (a)(i) (A), (B) and (C), above, as part of the capacity fee, DISTRICT shall procure and provide to LUBBOCK, at its sole expense, all necessary engineering services for the design and other necessary engineering work for the Extension with an engineering firm suitable to LUBBOCK. Prior to entering into the contract for professional engineering services, DISTRICT shall obtain the written consent of LUBBOCK, by and through its City Manager, or his or her designee, approving the selection of the engineer. All design and engineering work conducted by the engineer shall be subject to the prior approval of LUBBOCK in accordance with the terms and provisions of the Design Standards and Specifications for Water and Sewer of LUBBOCK (the "Standards"), a copy of said Standards having been provided to DISTRICT. WHOLESALE WATER SALES CONTRACT LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 4 (ii) Unless and until the DISTRICT has paid LUBBOCK the one time capacity fee described herein for the Extension, and all requirements of DISTRICT as provided in this Section 2.2 have been fully completed and satisfied, LUBBOCK shall be under no obligation of any kind to deliver wholesale water to DISTRICT. (iii) All designs, materials and specifications for the water pipeline, to be constructed by DISTRICT from the Woodrow Campus to the Point of Delivery, shall conform to LUBBOCK's Standards. (iv) DISTRICT represents and warrants to LUBBOCK, and the governing body of DISTRICT specifically finds that the expenditure of funds as set forth herein are expended in furtherance of a valid public purpose of DISTRICT, that being the assuring the availability of capacity for, and the provision of, water service to the Woodrow Campus. (b) Responsibilities of LUBBOCK (i) LUBBOCK shall construct the Extension, to be complete and capable of delivering water in quantities and at the rate of delivery provided herein on or before three hundred sixty —five days (365) days after the Effective Date of this Contract. (c) Ownership of Extension The Extension, including the easements, rights of way, consents, licenses, permits, and/or any other evidence of authority to place, maintain and operate the Extension and all rights and appurtenances thereto (collectively, the "Easements") and any warranties, expressed or implied, shall be owned, for so long as this Contract shall remain in force and affect, jointly by LUBBOCK, owning an undivided 999/1000 interest, and DISTRICT, owning an undivided 1/1000 interest, notwithstanding the sharing of the costs thereof. Upon the expiration or termination of this Contract, the ownership interest in the Extension and Easements of DISTRICT shall terminate by operation of law and revert to WHOLESALE WATER SALES CONTRACT LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 5 LUBBOCK without any action required of LUBBOCK. Notwithstanding the partial undivided ownership interest of DISTRICT in the Extension and the Easements record title shall reflect ownership of such properties and interests in LUBBOCK. Notwithstanding the partial undivided ownership interest of DISTRICT in the Extension and the Easements, DISTRICT shall not be entitled to possess or otherwise access such properties and interests. Except as otherwise provided herein, all rights, benefits and responsibilities related to the Extension and Easements, including without limitation, the right to operate, maintain, repair, lengthen, enlarge and allow connections thereto, shall be to and for the benefit of LUBBOCK. The partial undivided ownership interest of DISTRICT in the Extension and Easements shall solely entitle it, as its sole and exclusive benefit of ownership, to receive deliveries of water from LUBBOCK, as contemplated herein. (d) DISTRICT shall be responsible for the construction and maintenance, at all times, of any and all pipe line or other infrastructure necessary to deliver the wholesale water from and after the Point of Delivery to the ground storage tank or other infrastructure, owned by the DISTRICT. 2.3. QUANTITY LUBBOCK shall be obligated to deliver a maximum of Fifty Thousand (50,000) gallons during any 24- hour period of time or Eighteen Million Two Hundred Fifty Thousand (18,250,000) gallons during any 365-day period of time to the DISTRICT, at the Point of Delivery. All water quantities delivered shall be measured by the metering device at the Point of Delivery. The meter shall be located in an area reasonably accessible by LUBBOCK at all times. LUBBOCK shall install the metering device (herein sometimes called the "meter", "metering device, or "metering equipment"), at the expense of DISTRICT (i.e., both the costs of the meter and the installation costs), at the Point of Delivery, and at its option may include equipment in WHOLESALE WATER SALES CONTRACT LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 6 such metering station devices to: (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 LUBBOCK at the respective meter and, at the option of LUBBOCK, remotely from within LUBBOCK. Deliveries shall be contingent upon facilities necessary or convenient for LUBBOCK to deliver water to DISTRICT from LUBBOCK'S existing water conveyance system to the Point of Delivery. 2.4. POINT OF DELIVERY AND TITLE WATER provided to DISTRICT shall be delivered at a point located approximately at the intersection of the extension of Avenue P of LUBBOCK and Farm to Market Road 1585, as de- picted in Exhibit "B", attached hereto (the "Point of Delivery"). Title to water passing through the Point of Delivery shall pass to the DISTRICT, for all purposes, at the outlet side of the meter. DISTRICT shall be responsible for the water, for all purposes and intents, from and after title passage to DISTRICT. DISTRICT hereby agrees, to the fullest extent permitted by law, to indemnify, save and hold 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 DISTRICT. 2.5. METERING EQUIPMENT LUBBOCK shall provide the maintenance of the necessary metering equipment for properly measuring the quantity of water delivered to DISTRICT. 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 three (3) months. A meter registering not more than three percent (3%) accuracy above or below the test result shall be deemed to be accurate. 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 WHOLESALE WATER SALES CONTRACT LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT ---- PAGE 7 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 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 LUBBOCK. 2.6. BILLING PROCEDURE A monthly statement of the amount of water determined to be delivered to DISTRICT through the meter at the Point of Delivery during the preceding month shall be mailed to DISTRICT, Attention: Sherry Cooper. All statements for water delivered shall be due and payable from current revenues available to DISTRICT on or before twenty-one (21) days after the issuance of said statement. A late payment charge of ten percent (10%) per annum shall be charged to DISTRICT if DISTRICT fails to pay the statement on or before twenty-one (21) days from date of the statement. If payment is not received by LUBBOCK within thirty-five (35) days after the date of issuance of the statement, the statement shall be deemed delinquent. LUBBOCK shall notify DISTRICT 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 statement, LUBBOCK may, at its discretion, cease deliveries of water to DISTRICT under the terms of this Contract. After water has ceased to be provided, LUBBOCK may, at its discretion, notify DISTRICT of its intention to declare this Contract forfeited and null and void. Upon such notice, DISTRICT 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 LUBBOCK declaring this Contract forfeited and null and void. Upon LUBBOCK declaring this Contract WHOLESALE WATER SALES CONTRACT LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 8 forfeited and null and void, LUBBOCK shall sever and/or remove all connections to LUBBOCK'S water system for delivery of water under this Contract. 2.7. AREA OF SERVICE DISTRICT shall provide water purchased under this Contract solely to the Woodrow Campus of DISTRICT. No other customer, geographic area or premises, of any kind or nature, shall be served by DISTRICT, directly or indirectly, with water purchased hereunder. 2.8. TERM OF CONTRACT The term of this Contract shall be a period of ten (10) years from its Effective Date (the "Initial Term"), and shall automatically renew for successive five (5) year periods so long as neither DISTRICT or LUBBOCK shall provide notice of its intent to not renew this Contract to the other party at least ninety (90) days prior to the expiration of the Initial Term or successive renewal term, as applicable. In the event such notice is provided, this Contract shall terminate at the end of the Initial Term or renewal term, as applicable, in effect at the time of the providing of the notice prescribed herein. ARTICLE III CONDITIONS OF RECEIVING SERVICE 3.1. DISTRICT'S FACILITIES DISTRICT agrees and understands that it will install and maintain, at its sole expense, all facilities necessary for DISTRICT to operate its water system from and after the Point of Delivery and that LUBBOCK shall be under no obligation whatsoever to bear any of said expenses aforementioned. After installation of the meter facilities by LUBBOCK, DISTRICT shall not alter, modify, or change the meter facilities under any circumstances. 3.2. RATES AND PAYMENT DATE DISTRICT shall pay to LUBBOCK, in a timely manner as provided in this Contract, those charges for water provided to DISTRICT pursuant to the terms of this Contract. The base WHOLESALE WATER SALES CONTRACT LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 9 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 28-52 of Code of Ordinances of the City of Lubbock, as may be amended from time to time. The flow 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 28-53 of the Code of Ordinances of the City of Lubbock, as may be amended from time to time. The rates charged do not imply or include service by LUBBOCK beyond the Point of Delivery; it being the expressed intent of LUBBOCK and DISTRICT that all expenses on DISTRICT'S side of the Point of Delivery shall be the sole expense of DISTRICT. The rates contained in this Contract are negotiated rates that are considered by each party to be fair, just and reasonable. DISTRICT waives any right it may have to appeal any decision affecting the amount paid for water pursuant to this Contract to the TCEQ or any other state agency that has, or may later obtain, jurisdiction over the rates charged by the LUBBOCK under this Contract. In the event any or user fee is imposed on the delivery, taking, sale, use, or consumption of the water received by DISTRICT from LUBBOCK, the amount of the user fee allocable to DISTRICT shall be borne by DISTRICT. When and if LUBBOCK shall be required to pay, collect or remit any user fee on water received by DISTRICT, then the user fee that is not included in the rates under this Contract will be added to the charges otherwise payable to LUBBOCK and DISTRICT shall promptly pay LUBBOCK for user fee in the manner directed by LUBBOCK. 3.3. SANITARY CONTROL DISTRICT shall maintain at all times a Reduced Pressure Zone (RPZ) backflow prevention device or an air gap at the Point of Delivery (i.e., between the system of LUBBOCK and DISTRICT'S water distribution system). At not time shall a by-pass be installed on or WHOLESALE WATER SALES CONTRACT LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 10 around the backflow prevention device. DISTRICT may allow service by direct pressure, if available, from the LUBBOCK'S line to the Point of Delivery. However, 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 2.3, above. DISTRICT shall permit personnel of LUBBOCK to enter upon the property of DISTRICT for the purpose of inspecting any and all facilities of DISTRICT regarding required sanitary controls. Should LUBBOCK have reasonable grounds to believe that any condition exists which might result in contamination of LUBBOCK'S water supply or jeopardize LUBBOCK'S certification with the Texas Commission on Environmental Quality and/or other federal, state or local regulatory authorities, then LUBBOCK shall notify DISTRICT and DISTRICT shall immediately correct such condition. In the event DISTRICT fails to correct such condition then LUBBOCK may, at its sole discretion, either correct the condition, at DISTRICT'S expense, and include the cost of materials and labor in subsequent billing statements from LUBBOCK to DISTRICT or cease delivering water under this Contract until such condition is corrected to the satisfaction of the LUBBOCK. In the event LUBBOCK determines that contamination of LUBBOCK'S water supply by DISTRICT actually exists, LUBBOCK shall have the absolute right to discontinue service to DISTRICT until such time as said contamination has been eliminated by DISTRICT. Nothing herein shall be construed to impose upon LUBBOCK the duty and obligation to make any inspection or to regulate the quality of water beyond the Point of Delivery to DISTRICT and DISTRICT shall be solely responsible for the operation, maintenance, regulation and employment 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. WHOLESALE WATER SALES CONTRACT LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 11 3.4. WATER CONSERVATION In the event LUBBOCK is required to implement its Water Conservation and/or Drought Contingency Plan for its system then in such event DISTRICT shall receive the same water allotment under such plan as any other customers of similar size and water needs served by LUBBOCK. DISTRICT 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 at least as promotional of conservation as such plans, programs and rules as developed and adopted by 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. DISTRICT agrees that if water supplies or services are curtailed within LUBBOCK, LUBBOCK may impose a like curtailment on deliveries to DISTRICT, and DISTRICT will cooperate by implementing the appropriate stages of their water conservation plan and/or drought contingency plan imposing such conservation measures. Additionally, in case of a shortage of water resulting from drought, the water to be distributed shall be divided among customers in accordance with Texas Water Code, § 11.039. LUBBOCK'S obligations under this Contract shall be subject to water conservation plans and drought contingency plans adopted by LUBBOCK or required or approved by the Texas Commission on Environmental Quality, or any other or additional federal, state, or local regulatory district or entity with power to require or approve water conservation and drought contingency plans. DISTRICT 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. WHOLESALE WATER SALES CONTRACT LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 12 ARTICLE IV DEFAULTS AND REMEDIES 4.1. NOTICE OF DEFAULT In the event that either LUBBOCK or DISTRICT 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 DISTRICT as the defaulting party, then 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 LUBBOCK as the defaulting party, then DISTRICT 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 LUBBOCK does not warrant that the services and deliveries provided for in this Contract will be free from, and 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 LUBBOCK. In the event of a shortage of water, or if distribution of water by LUBBOCK to DISTRICT is deemed WHOLESALE WATER SALES CONTRACT LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 13 inappropriate by any regulatory agency or law, the supply of water to DISTRICT under this Contract shall be reduced or ceased as deemed necessary by 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 LUBBOCK'S facilities. 5.2. 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 this Contract in any forum having jurisdiction, and DISTRICT and 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. DISTRICT represents and warrants to LUBBOCK that it has obtained all necessary permits and consents necessary to provide water service to the Woodrow Campus. 5.3. NO ASSIGNMENT All the promises, undertakings, agreements, covenants and contracts herein contained by or on behalf of either LUBBOCK or DISTRICT shall bind the successors and permitted assigns of either party, whether so expressed or not; but neither LUBBOCK nor DISTRICT shall have the right to assign this Contract, or any part thereof, without the written consent of the other party. 5.4. ENTIRETY AND AMENDMENTS It is expressly stipulated that LUBBOCK and LUBBOCK'S agents have made no representations, warranties or promises with respect to the delivery of water and all other matters WHOLESALE WATER SALES CONTRACT LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT ---- PAGE 14 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. No rights, easements, entitlements, or licenses are acquired by DISTRICT by implication or otherwise except as expressly set forth in this Contract. 5.5. WAIVER No failure on the part of LUBBOCK at any time to require the performance by DISTRICT of any portion of this Contract shall in any way affect LUBBOCK'S right to enforce such provision or any other provision. Nor shall any waiver by 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 DISTRICT or LUBBOCK is authorized to waive or modify any provision of the Contract. 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. APPLICABLE LAW AND VENUE 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. VENUE RELATED TO ANY MATTER BROUGHT HEREUNDER SHALL LIE SOLELY IN LUBBOCK COUNTY, TEXAS. WHOLESALE WATER SALES CONTRACT LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 15 5.8. EFFECTIVE DATE This Contract shall be effective and binding between the parties hereto as of the date of execution by LUBBOCK. 5.9. NOTICE All notices, payments and communications required or allowed by this Contract, unless otherwise provided herein, 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 INDEPENDENT SCHOOL DISTRICT ATTN: Pat Henderson, or Successor 16302 Loop 493 Lubbock, Texas 79423 Facsimile No: (806) 86373130 CITY OF LUBBOCK P. O. Box 2000 Lubbock, Texas 79457 ATTN: Thomas Adams, Deputy City Manager, or Successor Facsimile No: (806) 775-2051 With Copies To: City Manager P. O. Box 2000 Lubbock, Texas 79457 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. WHOLESALE WATER SALES CONTRACT LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 16 5.10 AUTHORITY DISTRICT represents and warrants to LUBBOCK that it is an independent school district 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. 5.11. 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. Notwithstanding anything to the contrary herein, in the event the illegality, invalidity or lack of enforceability shall affect the DISTRICT'S obligation to construct and/or pay for all or any part of the Extension or related infrastructure or real property interests, or to pay for all or any part of the water delivered or to be delivered hereunder, LUBBOCK may, at its option, immediately terminate this Contract. 5.12. CURRENT REVENUES Each party paying for performance under this Contract shall make all payments from current revenues available to the paying party. WHOLESALE WATER SALES CONTRACT LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 17 26th June EXECUTED as of the A4' day of t 92006, LUBBOCK COOPER INDEPENDENT THE CITY OF LUBBOCK SCHOOL DI TRICT BY• � BY:'� DAVID A ILLER, MAYOR ATTEST: ml/Richard/LCISD-Water Sales Contract.rdin accept May 16, 2006 ATTEST: Rebecha Garza, City Secretary APPROV AS TO CONTENT: Thomas Adams, Deputy City Manager APPROVED AS TO FO Richard K. Casner First Assistant City Attorney WHOLESALE WATER SALES CONTRACT LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT ---- PAGE 18