HomeMy WebLinkAboutResolution - 2006-R0309 - Wholesale Wastewater Interlocal Contract - Lubbock-Cooper ISD - 06_26_2006Resolution No. 2006-RO309
June 26, 2006
Item No. 5.19
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 Wastewater
Interlocal Contract, by and between the City of Lubbock and Lubbock -Cooper
Independent School District, and all related documents. Said Wholesale Wastewater
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.
DAVID A. MILLER, MAYOR
ATTEST:
Dj_'� - yst., —
Re ecca Garza, City Secretary
APPROVED AS TO CONTENT:
D&puty City Manager
APPROVED AS TO FORM:
Richard K. Casner, First Ass>stan Attorney
ml/ccdocs/LCISD Wastewater Contract.res
June 12, 2006
Resolutlon No. 2006-RO309
WHOLESALE WASTEWATER INTERLOCAL CONTRACT
STATE OF TEXAS §
CITY OF LUBBOCK §
This contract is made and entered into this, the 26th day of June
2006, by and between the City of Lubbock, Texas, a Texas home rule municipal corporation,
hereinafter referred to as "Lubbock," and Lubbock -Cooper Independent School District, an
independent school district of the State of Texas, hereinafter referred to as "Customer."
WHEREAS, the public health, welfare and safety of the residents of Lubbock and
students and faculty of Customer require the development of adequate systems of sewage
collection and disposal, the elimination of water pollution and the preservation of the water
resources of the State of Texas; and
WHEREAS, Lubbock is required to comply with standards and treatment methods for
wastewater as set forth in federal, state and local laws and regulations and permits; and
WHEREAS, Lubbock and Customer have an interest in maintaining the chemical,
physical and biological integrity of waters and water resources and insuring the reduction of
pollution in said waters and water resources, and planning the use, development, restoration,
preservation and enhancement of said waters and water resources; and
WHEREAS, Customer is in need of sewer services at its campus located outside of the
municipal boundaries of Lubbock, in or around the community of Woodrow, Texas, said campus
being depicted on Exhibit "A", hereto (the "Woodrow Campus"); and
WHEREAS, such service is not necessary at school campuses of Customer other than the
Woodrow Campus; and
WHEREAS, Customer desires to enter into a contract for wastewater service for the
Woodrow Campus and Lubbock desires to provide such wastewater service to Customer; and
WHEREAS, Chapter 791 of the Government Code, authorizes Lubbock and Customer to
enter into this Contract;
NOW, THEREFORE, Lubbock and Customer, in consideration of and subject to the
terms, covenants and conditions herein contained, hereby agree as follows:
1. Definitions
When used in this contract, these terms shall be defined as follows:
1.1 Calibration - Verification of primary measuring device and secondary
instrumentation accuracy utilizing standard primary device procedures and calibration signals
and/or a separate flow measurement instrument.
1.2 Customer System - The facilities of, and to be owned and maintained by,
Customer used for pretreatment, collection and transportation of wastewater to the point of entry.
1.3 Delivery facilities - All facilities necessary for the transmission of wastewater to
the Lubbock System that are on the Customer's side of the point of entry that are constructed
specifically to allow Lubbock to serve Customer.
1.4 Director - The Director of Water Utilities of the City of Lubbock.
1.5 Lubbock System - Lubbock's wastewater collection and treatment system, also
defined as "publicly owned treatment works" (POTW) as provided in Title 40 of the Code of
Federal Regulations.
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LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT ---- PAGE 2
1.6 Industrial wastes - All water -borne solids, liquids or gaseous substances
resulting from any commercial, industrial, manufacturing or food processing operations, or from
the development of any natural resource, or any mixture of these with water or domestic sewage.
1.7 Industrial User — Any industry or party that discharges industrial processing
wastewater, including sanitary wastewater, into the City of Lubbock's sanitary sewer system.
system.
1.8 Infiltration - Water that has migrated from the ground into the wastewater
1.9 Inflow - Water other than wastewater that enters a sewerage system (including
sewer service connections) from sources such as, but not limited to, roof leaders, cellar drains,
yard drains, area drains, drains from springs and swampy areas, manhole covers, cross
connections between storm sewers and sanitary catch basins, cooling towers, storm waters,
surface runoff, street wash waters or drainage. Inflow does not include, and is distinguished
from, infiltration water.
1.10 Liquid Waste - The water -borne solids, liquids, and gaseous substances derived
from certain sources including, but not limited to, grease trap, septic tank, chemical toilet waste
and sand trap waste.
1.11 Metering and sampling facility - The meter, meter vault, and all metering and
telemetry equipment required to measure and/or sample wastewater flows of the Customer at
the point of metering or other such locations, as may be mutually agreed upon in writing.
1.12 Point of entry - The point of connection to the Lubbock System, as described on
Exhibit "A", attached hereto, unless otherwise mutually agreed upon in writing.
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LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 3
1.13 Point of Metering — The point on Customer System where upon metering and
sampling facilities are located, as described on Exhibit "A", attached hereto, or other such
locations, as may be mutually agreed upon in writing.
1.14 Pretreatment or treatment - The reduction of the amount of pollutants, the
elimination of pollutants, or the alteration of the nature of pollutant properties in wastewater to a
less harmful state prior to or in lieu of discharging or otherwise introducing such pollutants into a
Publicly Owned Treatment Works ("POTW"). The reduction or alteration can be obtained by
physical, chemical or biological processes, or process changes by other means, except as
prohibited by 40 CFR Section 403.6(d). Pretreatment or treatment shall also include, without
limitation, such devices as grease, oil, or sand interceptors, and hydrocarbon removal units.
1.15 Pretreatment requirements — Any substantive or procedural requirement related
to pretreatment, other than a national pretreatment standard, imposed on an industrial user.
1.16 Significant industrial user —
(A) Any user which discharges industrial wastes directly or indirectly into the
Customer System or Lubbock System that:
(1) Is subject to Categorical Pretreatment Standards under 40 CFR 403.6 and
40 CFR chapter I and subchapter N or other categorical pretreatment
standards of the U.S. Environmental Protection Agency or Texas
Commission on Environmental Quality, or the successors thereof, or
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LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 4
(2) Discharges an average of twenty-five thousand (25,000) gallons per day or
more of process wastewater (excluding sanitary, non -contact cooling, and
boiler blowdown wastewater);
(3) Contributes a process wastestream which makes up five percent (5%) or
more of the average dry weather hydraulic or organic capacity of the
Lubbock System treatment plant; or
(4) Has a reasonable potential, in the opinion of the Director, for adversely
affecting the Lubbock System due to discharge of wastewater or for
violating any pre-treatment standard or requirement.
(B) Upon finding that an industrial user meeting the criteria in Section
1.16(A)(1) has no reasonable potential for adversely affecting the POTW's
operation or for violating any pre-treatment standard or requirement, the
Director may at any time on it's own initiative or in response to a petition
received from a user, and in accordance with procedure in 40 CFR
403.8(f)(6), determine that such user should not be considered a significant
industrial user.
1.17 Standard methods - The examination and analytical procedures set forth in the
181h edition of "Standard Methods for the Examination of Water and Wastewater," as prepared,
approved and published jointly by the American Public Health Association, the American Water
Works Association and the Water Pollution Control Federation.
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LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 5
1.18 Wastewater - Liquid or water -carried waste products and sewage from whatever
source, including without limitation, residential dwellings, commercial buildings, industrial and
manufacturing facilities, and institutions, whether treated or untreated, which are discharged into
or permitted to enter the Lubbock System.
interchangeable.
2. Connection to the Lubbock POTW
The terms wastewater and sewage are
2.1 Lubbock grants to Customer, upon compliance with the terms and conditions
contained herein, permission to connect its System to the Lubbock System.
2.2 Lubbock, subject to the terms hereof, agrees to accept wastewater from Customer
at the point of entry as designated on Exhibit "A", attached hereto and incorporated herein.
2.3 The cost of all delivery facilities necessary for Customer to convey wastewater to
the designated point of entry, whether shown on Exhibit "A" or mutually agreed upon at a later
date, together with the cost of connection of the Customer System to the Lubbock System,
including metering and sampling facilities, shall be borne solely by Customer. All such metering
and delivery facilities shall be approved by Lubbock.
2.4 Customer shall be responsible for the design, construction and maintenance of
delivery facilities. All designs, materials and specifications shall conform to Lubbock's Design
Standards and Specifications for Water and Sewer (the "Standards"), a copy of said Standards
having been provided to Customer. Plans and specifications for the delivery facility or facilities
which connect to the Lubbock System shall be submitted to the Director for written approval.
Such approval shall not be unreasonably withheld. No construction on the delivery facility shall
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LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 6
begin until such approval has been given. Customer agrees that Lubbock has the right to make
periodic inspections during the construction phase of the delivery facilities. Final acceptance of
such facility from the point of connection up to and including the metering and sampling facility
is subject to the inspection and written approval of the Director.
2.5 Customer shall be permitted solely to discharge wastewater actually generated
from the Woodrow Campus into the Lubbock System.
2.6 Customer shall not provide service to, or allow, in any way, manner or form, the
connection of any party or facility, including any facility or campus of Customer, other than the
Woodrow Campus, to Customer's System or the Lubbock System per the terms of this contract.
Nothing contained herein shall be construed to prohibit or limit the ability of Customer, as a
retail customer of Lubbock, to discharge wastewater to the Lubbock System from campuses and
facilities located within the municipal boundaries of Lubbock.
3. Maintenance of Customer System
Customer agrees to maintain its system in good condition and to make repairs in a timely
manner. Lubbock shall not have any responsibility or liability now or ever for the operation of
the Customer's System.
4. Maintenance of Lubbock System
Lubbock agrees to maintain its system in good condition and to make repairs in a timely
manner. Customer shall not have any responsibility or liability now or ever for the operation of
the Lubbock System, except as otherwise provided herein.
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LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 7
5. Metering and Sampling Facilities
Customer shall be responsible for providing, at its sole cost, metering and sampling
facilities at the point of metering. The metering and sampling facilities shall be Isco ultra -sonic
model number 4210 and parshall flume, with attendant phone line, or other type as approved by
the Director. From and after installation and for the term of this contract and any renewal hereof,
Lubbock shall own all of the metering and sampling facilities required herein.
6. Metering and Sampling
6.1 All flow discharged into the Lubbock System by Customer shall be metered or
otherwise measured, unless specifically agreed to by both parties in writing. Should both parties
agree in writing that metering is not possible, the agreed upon method for determining the
volume shall include an adjustment for infiltration and inflow.
6.2 Monthly readings of the meter will be entered in the City of Lubbock billing
system. Customer shall have access to such records during reasonable business hours and shall
be furnished upon request with totalizer readings for the metering and sampling facility.
6.3 Lubbock shall calibrate and routinely service the meter not less than once during
each six (6) month period. Copies of the results of such calibration and all related information
shall be provided upon request to Customer. Lubbock shall notify Customer at least seventy-two
(72) hours in advance of the date and time for any calibration and Customer may observe, if so
desired.
6.4 Upon any calibration, if it is determined that the accuracy of such meter is found
to be lower than ninety-five percent (95%) or higher than one hundred five percent (105%)
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LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 8
expressed as a percentage of the full scale of the meter, the registration of the flow as determined
by such defective meter shall be corrected for a period extending back to the time such
inaccuracy began, if such time is ascertainable; or, if such time is not ascertainable, then for a
period extending back one-half (1/2) of the time elapsed since the date of the last calibration, but
in no event further back than a period of six (6) months.
6.5 If any meter used to determine volume from Customer is out of service or out of
repair so that the amount of wastewater metered cannot be ascertained or computed from the
reading thereof, the wastewater delivered through the period such meter is out of service or out of
repair shall be estimated and agreed upon by the parties hereto upon the basis of the best data
available. The basis for estimating such flow includes, but is not limited to, extrapolation of past
patterns of flow for said metering station under similar conditions.
6.6 Lubbock may periodically determine the quality of the wastewater at the metering
and sampling facilities or other agreed upon sampling points for the purposes of billing for the
strength or quality of the wastewater and relating to compliance with pre-treatment requirements.
To determine the quality of the wastewater, in the event Lubbock desires to conduct sampling
activities, Lubbock may collect twenty-four (24) hour composite samples or other sampling
methods as deemed necessary or advisable by Lubbock. Such sampling is deemed by Lubbock
and Customer to be sufficient to adequately determine the strength and quality of the wastewater.
Lubbock shall analyze the samples collected in accordance with standard methods.
Customer may be present during the initial setup of sampling equipment and at the time of
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LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 9
pickup for the sample. Lubbock agrees, if requested, to split said wastewater samples with
Customer.
6.7 If in the opinion of the Director compliance monitoring is required, the Director
may order that additional monitoring be performed by Customer with or without prior notice to
Customer.
6.8 All costs incurred by Lubbock under this section shall be paid by the Customer.
7. Rates and Charges
7.1 Wastewater rates to be paid by Customer shall be that set forth in Section 28-86 of
the Lubbock Code of Ordinances, as may be amended from time to time, including without
limitation, surcharges related to exceedances of limits as described therein.
7.2 Bills for wastewater treatment and disposal service shall be rendered to Customer
monthly by Lubbock. All such bills shall be due and payable by Customer not more than thirty
(30) days from the billing date. The bill will show current charges, as well as past -due charges, if
any. Current charges shall be the amount due for wastewater collection, treatment and disposal
service provided and applicable surcharge, if any, accruing since the prior billing period. Past -
due charges shall be the total amount unpaid from all prior billings as of the current billing date.
Payments received by Lubbock shall first be applied to the past -due charges, if any, and
thereafter to the current charges.
7.3 In the event a payment is not paid as specified in this contract, a late charge of ten
percent (10%) per annum will be due and payable by Customer from the date which the payment
was required to be made to the date of payment.
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LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 10
7.4 The parties hereto agree that services obtained pursuant to this contract are
essential and necessary to the operation of Customer's waterworks and wastewater facilities and
that all payments made by the Customer hereunder shall constitute reasonable and necessary
operating expenses of Customer's waterworks and wastewater systems.
8. Industrial Connection and monitoring and metering
8.1 Customer agrees that it will not permit any person or party to connect directly or
indirectly either to Customer's System or to the Lubbock System.
8.2 If it is deemed by Lubbock that monitoring by Customer is necessary, Customer
agrees to conduct any and all monitoring, sampling and inspection of Customer System as
necessary to insure that industrial waste introduced into the Customer System meets the quality
standards set out in Article 9 hereof. A representative of Lubbock shall be permitted to observe
Customer's collection of samples, and Customer agrees to furnish Lubbock separate duplicate
samples for independent testing, and to provide the Director Customer's sample analysis results
and pretreatment records.
8.3 Customer grants to Lubbock the right to enter upon, over and across all property
owned or controlled by Customer without prior notice to examine, operate, maintain, observe or
conduct any other activity related to the metering and sampling facilities, including without
limitation, to sample wastewater at the point of metering and such other locations as may be
needed for the purpose of determining the volume and quality of wastewater entering the
Lubbock System.
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8.4 Customer grants to Lubbock the right to enter upon, over and across all property
owned or controlled by Customer without prior notice in the event that Lubbock determines that
questionable discharges or prohibited discharges are entering or may be entering the Lubbock
System emanating from the Customer System. Customer agrees to assist Lubbock in locating
and eliminating such prohibited discharges. Customer shall immediately cease any prohibited
discharges.
9. Wastewater Quality
9.1 Customer shall comply with all provisions of Division 3 and Division 4, as
applicable, of Chapter 28 of the Lubbock Code of Ordinances, as may be amended from time to
time; and applicable state and federal regulations relating to (a) discharged substances; (b)
prohibited discharges; (c) pretreatment requirements; (d) industrial discharge permitting systems;
and (e) industrial self -monitoring reports.
9.2 Customer shall only discharge wastewater into the Customer System of a quality
equal to or better than the quality standards established by Division 3 of Chapter 28 of the
Lubbock Code of Ordinances, as may be amended from time to time.
9.3 Customer shall not, at any time during the term of this contract, conduct any
activity or discharge any wastewater to the Lubbock System which would cause it to be classified
as a significant industrial user.
10. Infiltration and Inflow
Customer agrees that it has an obligation to prevent infiltration and inflow into its System
and then into the Lubbock System. Customer further agrees that all sewer infrastructure which
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LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 12
ultimately enter into the Lubbock System will be constructed in accordance with applicable
specifications and standards at least equal to those of the Lubbock. Further, Customer covenants
and agrees to maintain strict supervision and maintenance of its System to prevent connections
through which surface drainage can enter ultimately into the Lubbock System. Customer shall
not make, nor shall it permit to be made, any connection which will contribute storm water run-
off of any kind, including without limitation, from rainwater spouts, rainwater areas, streets,
gutter drain or other source, into the Customer's System.
11. Wastehaulers
Customer agrees to prohibit the introduction of liquid waste or wastewater from waste
haulers into the Customer System, directly or indirectly.
12. Assistance
In the event Customer requests assistance with its System, Lubbock may, at its option,
assist Customer. Customer agrees to pay Lubbock its actual costs incurred, including, but not
limited to, labor and material expended. Nothing herein shall be construed to require Lubbock to
assist Customer. Such costs will be invoiced to Customer and payment made within ten (10)
days after receipt of invoice.
13. Payment and Late Fees
The parties hereto agree that the failure to make any payments within the times provided
for herein results in additional costs to the party to be paid; therefore, the parties agree that any
payment required herein not made within thirty (30) days of the billing date or the date specified
for payment, as applicable, shall be subject to a late charge of ten percent (10%) per annum to be
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LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 13
due and payable from the date which the payment was required to be made to the date of
payment.
14. Reports and Records
If requested by the Director, the Customer shall provide any additional data regarding
wastewater or Customer's System which may assist Lubbock in developing methodology for cost
of service studies, planning studies for analyzing federal grants, or any other purpose desired by
Lubbock.
15. Notices
All notices, payments and communications required or allowed by this contract, unless
specifically provided otherwise 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, 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.
WHOLESALE WASTEWATER INTERLOCAL CONTRACT
LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 14
LUBBOCK-COOPER INDEPENDENT
SCHOOL DISTRICT
16302 Loop 493
Lubbock, Texas 79423
ATTN: Pat Henderson, or successor
Facsimile No: (806) 863-3130
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.
16. Inspection and Audit
Complete records and accounts required to be maintained by each party hereto shall be
kept for 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 any law, rule or regulation,
Customer and Lubbock shall make said records and accounts available to federal and/or state
auditors or authorities.
17. Consent
Whenever, under the terms of this contract, Lubbock is permitted to give its written
consent or approval, Lubbock, in its discretion, may give or may refuse such written consent or
approval and, if given, may restrict, limit or condition such consent or approval in any manner it
shall deem advisable.
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18. Waiver, Remedy, Severability
18 .1 Any alleged waiver by the non -waiving party must be in writing and executed by a
duly authorized person of the waiving party to be effective as a waiver hereunder. No waiver by
either party hereto of any term or condition of this contract shall be deemed or construed to be a
waiver of any other term or condition or subsequent waiver of the same term or condition.
18.2 In addition to any other remedy as may be provided by law, this contract shall be
specifically enforceable by the parties hereto. Laws of the State of Texas shall govern the terms,
performance and enforcement of this contract. This Contract is performable in Lubbock County,
Texas. SOLE AND EXCLUSIVE VENUE FOR ANY ACTION RELATED TO THIS
CONTRACT SHALL BE IN LUBBOCK COUNTY, TEXAS.
18.3 It is agreed that, in the event any term or provision herein contained is held to be
invalid by any court of competent jurisdiction, the invalidity of such term or provision shall in no
way affect any other term or provision contained herein. In such event, this contract shall
continue as if such invalid term or provision had not been contained herein.
19. Ownership and Liability
19.1 No provision of this contract shall be construed to create any type of joint or
equity ownership of any property, any partnership, joint venture or joint enterprise, nor shall
same create any other rights or liabilities and Customer payments (whether past, present, or
future) shall not be construed as granting Customer partial ownership of, pre -paid capacity in, or
equity in the Lubbock System.
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19.2 Subject to the terms of this provision, liability for damages arising out of the
transportation, delivery, reception, treatment, and/or disposal of all wastewater discharged into
the Lubbock System shall remain in the Customer, together with, except as provided herein, title
thereto, until such wastewater passes through the point of entry to the Lubbock System, at which
time liability for such damage shall pass to Lubbock. Title to any prohibited discharge or
contribution to the Lubbock System in contravention or violation of the terms of this contract and
any liability therefore shall not pass to Lubbock and shall remain in Customer. Customer shall,
to the extent permitted by law, indemnify and save and hold Lubbock harmless from any and all
claims, demands, causes of action, damages, losses, costs, fines, penalties and expenses, of any
kind or manner, including reasonable attorney's fees, arising from, in connection with, or related
to any activity, or the omission of any activity, contemplated by this contract, including without
limitation, the transportation, delivery, receipt, treatment and/or disposal of wastewater from
Customer or the Customer's System. The indemnity obligation provided herein shall survive the
termination of this contract.
20. Compliance with Permit Conditions
Customer acknowledges that Lubbock is the holder of discharge permits issued by the
United States and/or the State of Texas and is subject to regulations and requirements related to
the collection and treatment of wastewater (collectively the "Permit"). Customer shall comply
with all Permit conditions in any way relating to the POTW, including without limitation, the
collection system and the discharge into the collection system. Without limiting the general
indemnities provided in Article 19, above, Customer shall indemnify, and save and hold Lubbock
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LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 17
harmless against any penalty or fine assessed against Lubbock for any violation of any Permit, if
such violation is attributable or related to an act of omission or commission by Customer.
21. Term of Contract
The term of this contract shall be ten (10) years from the date of its execution by Lubbock
(the "Initial Term"). Customer is given an option to extend this contract upon identical terms
and conditions hereof, except the option granted herein to Customer shall be deemed to be
deleted from this contract upon the exercise of such option by Customer, for one (1) five (5) year
period provided that at least twelve (12) months prior to expiration of the Initial Term of this
contract Customer notifies Lubbock, in writing, as set forth herein, of its desire to exercise the
option and extend this contract.
22. Force Maieure
No party hereto shall be considered to be in default in the performance of any of the
obligations hereunder (other than as set forth herein and obligations of either party to pay costs
and expenses) if such failure of performance shall be due to an uncontrollable force beyond the
control of the parties, including but not limited to, the failure of facilities, flood, earthquake,
tornado, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience, labor
dispute and action or non -action by a failure to obtain the necessary authorizations and approvals
from any governmental agency or authority or the electorate, labor or material shortage, sabotage,
or restraint by a court order or public authority, which by the exercise of due diligence and
foresight such party could not have reasonably been expected to avoid and/or which by exercise
of due diligence it shall be unable to overcome. Either party rendered unable to fulfill any
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LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT---- PAGE 18
obligation by reason of an uncontrollable force shall exercise due diligence to remove such
inability with all reasonable dispatch. Notwithstanding anything to the contrary herein, the
failure of required pretreatment activities by Customer and/or the failure by Customer to
discharge wastewater to the Lubbock System of a quality prescribed by Article 9 shall not be
deemed a force majeure in any event regardless of the cause.
In the event the proper operation of the Lubbock System, as a result of the above, requires
Lubbock to temporarily interrupt all or part of the services to Customer, no claims for damage
shall be made by Customer against Lubbock and Customer hereby releases Lubbock for, from
and against any such claims.
23. Events of Default and Remedies
23.1 Notwithstanding anything contained herein to the contrary, any breach or failure
by Customer to perform any of the duties or the obligations of Customer hereunder or to
faithfully keep and perform any of the terms, conditions and provisions hereof (collectively,
"Default") shall be cause for termination of this contract by Lubbock in the manner set forth in
this Article 23.
In addition to the remedy of termination, Lubbock may also seek any other remedy
available to it by law, equity, contract or otherwise. The remedies provided to Lubbock, in the
event of a breach of this contract by Customer, shall be cumulative in nature and may be
exercised concurrently by Lubbock.
Lubbock shall deliver to Customer thirty (30) days written notice of the Default of
Customer, including in such notice a reasonable description of the breach. If within said thirty
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(30) days, Customer shall fail or refuse to cure such Default to the satisfaction of Lubbock,
Lubbock shall have the right, without any liability whatsoever on the part of Lubbock, to
immediately declare this contract terminated, disconnect the Customer's System from the
Lubbock System and to exercise any and all other rights and remedies it may have, as set forth
above. In the event of termination of this contract, all rights, powers, and privileges of Customer
hereunder shall cease and terminate and Customer shall have no claim of any kind whatsoever
against Lubbock, its agents or representatives, by reason of such termination or any act incident
thereto. Lubbock shall advise Customer in writing upon acceptance of the cure of any Default.
23.2 Notwithstanding anything to the contrary herein, and in addition to the other rights
and remedies granted to Lubbock hereunder, if the event of a Default by Customer, in the opinion
of Lubbock, presents or may present an imminent or substantial endangerment to the health and
welfare of persons or to the environment, causes interference to the POTW or contributes to the
cause of a violation by Lubbock of its Permit, Lubbock may suspend service hereunder after
twelve (12) hours notice and opportunity to cure to Customer. Such suspension may continue,
without liability of any kind or nature to Lubbock, for so long as such imminent or substantial
endangerment shall be present up to the date this contract is terminated as provided herein.
23.3 Without limiting the general nature of Section 18.1, above, any waiver of a
Default by Lubbock shall not be deemed to be a waiver by Lubbock of any remedy or to seek or
assert any other rights under this contract, including without limitation, right to terminate this
contract for any subsequent Default of Customer.
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23.4 In the event Lubbock shall fail to perform under this contract, Customer may, as
its sole and exclusive remedy, either terminate this contract upon providing notice to Lubbock in
the same manner Customer is to be provided notice pursuant to the notice provisions provided
above regarding notice of Default of Customer, or enforce specific performance of the terms of
this contract.
24. Effective Date
This contract, together with all terms and conditions and covenants hereof, shall be
effective as of the date of the execution hereof by Lubbock.
25. Conditions Precedent
The obligation of Lubbock to perform under this contract is subject to the condition
precedents that, (i) Customer construct all infrastructure necessary to deliver wastewater to the
point of entry; (ii) Customer shall construct the metering and sampling facilities at the point of
metering; and (iii) Lubbock and Customer shall have received written approval and authorization
to perform hereunder by the Environmental Protection Agency of the United States of America,
the Texas Commission on Environmental Quality and any other governmental or regulatory body
or authority having jurisdiction over such matters, if required by law.
26. Miscellaneous
26.1 This contract is subject to all applicable federal and state laws and orders, rules
and regulations of any state or federal governmental authority having or asserting jurisdiction
("Applicable Law")
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26.2 The Customer agrees to abide by and comply with any changes in this contract
made necessary by any amendment or revision to the Applicable Laws or any part thereof.
26.3 Customer shall allow access to the property owned or controlled by Customer to
any duly authorized employee of Lubbock bearing proper credentials and identification, in
accordance with the provisions of this contract. Customer may elect to accompany the Lubbock
representative.
26.4 In each instance herein where reference is made to the Applicable Laws, it is the
intention of the parties that, at any given time, the currently effective federal or state statute,
regulation or rule shall apply.
If a publication or reference work referred to herein is discontinued or ceases to be the
generally accepted work in its field, or if conditions change, or new methods or processes are
implemented by Lubbock, new standards shall be adopted which are in compliance with
Applicable Laws and Customer shall be bound by same.
26.5 Customer acknowledges that Lubbock must comply with all federal, state and
local government requirements to obtain grants and assistance for system design, system
construction and studies. Customer agrees to assist Lubbock in such efforts, as reasonably
requested by Lubbock.
26.6 Section headings in this contract are for convenience only and do not purport to
accurately or completely describe the contents of any section. Such headings are not to be
construed as a part of this contract or any way defining, limiting or amplifying the provisions
hereof.
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27. Delegation of Authority
27.1 Whenever any action is required by or permitted to be taken by Lubbock in this
contract, such action may be taken by the Director for and on behalf of Lubbock, and the
governing body of Lubbock hereby delegates such authority to the Director. Additionally, the
Director may delegate any activity required or permitted to be taken by him or her hereunder to a
representative of Director, who shall act, for all purposes, on behalf of and for Director, for the
purposes so delegated.
27.2 Whenever any action is required by or permitted to be taken by Customer in this
contract, such action may be taken by the Superintendent for and on behalf of Customer, and the
governing body of Customer hereby delegates such authority to the Superintendent.
28. Current Revenues
Each party paying for performance under this contract shall make all payments from current
revenues available to the paying party.
IN WITNESS WHEREOF, the parties hereto have caused this contract to be executed by
their respective officers thereunto duly authorized.
LUBBOCK-COOPER INDEPENDENT SCHOOL
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LUBBOCK COOPER INDEPENDENT SCHOOL DISTRICT --- PAGE 23
CITY OF LUBBOCK
DAVID A. MILLER, MAYOR
ATTEST:
Re ecca Garza, City Secretary
APPROVED AS TO CONTENT:
Thomas Adams, Deputy City Manager
APPROVED AS TO FORM:
Richard K. Casner
First Assistant City Attorney
RKC:mI L:\Cityatt\Richard\Lubbock-CooperWholesaleWastewatetContract
June 8, 2006
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