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HomeMy WebLinkAboutResolution - 2005-R0076 - Agreement For Transfer And Sale - City Of Pampa - Water Supply - 02_24_2005Resolution No. 2005-R0076 February 24, 2005 Item 26 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, an Agreement For The Transfer And Sale Of Water Supply between the City of Lubbock and the City of Pampa. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 24th day of -February, 2005. ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: APPROVED AS TO FORM: Richard K. Casner, First Assistant City Attorney as/ccdocs/Res.Agrmt-CRMWA February 10, 2005 Resolution No. 2005-R0076 AGREEMENT FOR THE TRANSFER AND SALE OF WATER SUPPLY BY AND BETWEEN THE CITY OF LUBBOCK AND THE CITY OF PAMPA WHEREAS, the City of Lubbock, Texas, a home rule municipal corporation of the state of Texas ("Lubbock") and the City of Pampa, Texas, a home rule municipal corporation of the state of Texas ("Pampa"), are both member cities of the Canadian River Municipal Water Authority ("CRMWA") and as such are entitled to receive a portion of their respective water supplies from water supplies owned and operated by 'MMV4[`kAV1J=rl WHEREAS, Pampa's allocation from CRMWA is greater than the anticipated needs of Pampa for at least the next five (5) years and, as a result, Pampa desires to convey such additional allocation to Lubbock, on the terms and provisions set forth below. NOW, THEREFORE, Lubbock and Pampa hereby agree as follows: SECTION 1. TRANSFER AND SALE OF WATER SUPPLY a. Initial Transfer. Pampa agrees to sell to Lubbock, and Lubbock agrees to purchase from Pampa, up to four hundred million (400,000,000) gallons of untreated water during the first calendar year of this Agreement, said water to be delivered to Lubbock at the point of delivery. The Point of Delivery (herein so called) is (i) for groundwater, in the ground within the boundaries of well fields owned by CRMWA; and (ii) for surface water, the raw water intake of CRMWA at Lake Meredith. Lubbock shall pay to Pampa the consideration of No Dollars Pampa- Sale of Water Pagel of 8 and Forty -One Cents ($.41) per 1,000 gallons of untreated water purchased by it. Lubbock is required to pay Pampa only for the water actually delivered to it by CRMWA on behalf of Pampa out of Pampa's CRMWA allocation. b. Subsequent Transfer. Pampa agrees to sell to Lubbock, and Lubbock agrees to purchase from Pampa, during the second, third, fourth and fifth calendar years of this Agreement up to the amount of water determined by Pampa as being available, said amount being determined by subtracting Pampa's estimated annual water need from the amount of water allocated to it by CRMWA for such year, said amount to be, in no event, not less than two hundred fifty million (250,000,000) gallons of untreated water per year, to be delivered at the point of delivery for Lubbock's CRMWA allocation. Pampa shall provide notice to Lubbock on or before December 1 of each year of the term of this Agreement setting forth the amount of water available for purchase by Lubbock for the following calendar year of this Agreement. Lubbock shall pay to Pampa the consideration of the actual cost for such water as allocated and billed to Pampa by CRMWA, excluding costs associated with pumping, chemical, and energy costs or charges and general operations and maintenance costs or charges. Lubbock is required to pay Pampa only for the water actually delivered to it by CRMWA on behalf of Pampa out of Pampa's CRMWA allocation. c. Payments. Lubbock shall make payment to Pampa for water delivered to it pursuant to the terms hereof on or before thirty (30) days after the receipt of an invoice for same as delivered to it by Pampa. Pampa shall provide such invoices to Lubbock on a monthly basis. Payments not paid within thirty (30) Pampa- Sale of Water Page 2 of 8 days of the date of receipt of the invoice shall bear interest at the rate of 1 % per month beginning on the 3 1 " day after the receipt of the invoice. SECTION 2. TERM. The term of this Agreement shall be for five (5) years, beginning on January 1, 2005, and ending on December 31, 2009. Further, upon the mutual agreement of Lubbock and Pampa, this Agreement may be extended for one (1) additional five (5) year term, upon the identical terms and provisions hereof. SECTION 3. DELIVERY. Lubbock shall pay to CRMWA all expenses related to the delivery of the water purchased by Lubbock pursuant to the terms of this Agreement. SECTION 4. AS IS CONVEYANCE. Except as provided herein, the water sold hereunder is "as is" and "with all faults". Subject to the terms of Section 6, below, Pampa warrants to Lubbock that the water delivered to Lubbock hereunder shall be of the same quality of that water provided by CRMWA to other CRMWA member cities. Pampa and Lubbock each agree that CRMWA shall be held harmless for any inability to deliver the water due to lack of aqueduct capacity, and that the delivery of the water shall only be made at such times and under such conditions that the right and ability of any other CRMWA member city to receive its contractually allocated water supply shall not thereby be impaired. SECTION 5. APPROVAL OF CRMWA. This Agreement is contingent upon the approval of the Board of Directors of CRMWA and the ability of CRMWA to transport the water to Lubbock through the existing pipeline, or any pipeline constructed in the future, serving Lubbock. Pampa- Sale of Water Page 3 of 8 SECTION 6. SOURCE OF WATER. It is expressly agreed and understood that Pampa receives its allocation of water from CRMWA from groundwater resources and/or surface water supplies, or a combination of both, owned by CRMWA. It is stipulated and agreed that water delivered to Lubbock hereunder may be comprised of any combination of such surface water and groundwater. SECTION 7. NOTICE. Any notices required to be given under this Agreement shall be deemed given upon being mailed, by certified mail, return receipt requested, postage prepaid, and the address to the other party is as follows: City of Pampa Attn: City Manager P. O. Box 2499 Pampa, Texas 79066-2499 City of Lubbock Attn: City Manager P.O. Box 2000 Lubbock, Texas 79457 Copy to: Canadian River Municipal Water Authority Attn: General Manager P.0.Box 9 Sanford, Texas 79078 SECTION 8. SEVERABILITY. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not in any way affect any other provision hereof and this Agreement shall be Parnpa- Sale of Water Page 4 of 8 considered as if such invalid, illegal or unenforceable provision had never been contained in this Agreement. SECTION 9. GOVERNING LAW AND VENUE. This Agreement is performable, at least in part, in Lubbock County, Texas, and venue for any action arising out of this Agreement shall be exclusively in Lubbock County, Texas. This Agreement shall be governed and construed in accordance with the laws of the State of Texas. SECTION 10. EVENTS OF DEFAULT AND REMEDIES a. Lubbock's Defaults/Pampa's Remedies. In the event Lubbock shall default in the performance of any term or provision of this Agreement for any reason other than (i) failure by Pampa to perform hereunder; or (ii) force majeure, Pampa may, if said default shall be continuing after twenty (20) days notice of such default delivered to Lubbock, exercise any right or remedy available to it by law, contract, equity or otherwise, including without limitation, the right to terminate this Agreement. b. Pampa's Defaults/Lubbock's Remedies. In the event Pampa shall default in the performance of any term or provision of this Agreement for any reason other than (i) failure by Lubbock to perform hereunder; or (ii) force majeure, Lubbock may, if said default shall be continuing after twenty (20) days notice of such default delivered to Pampa, exercise any right or remedy available to it by law, contract, equity or otherwise, including without limitation, specific performance and/or the right to terminate this Agreement. Parnpa- Sale of Water Page 5 of 8 The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. c. Attorney's Fees. In the event it becomes necessary for either party to institute suit to enforce any right or obligation against the other party arising from or incident to this Agreement, then the prevailing party shall be entitled to recover reasonable attorney's fees and court costs. d. Force Majeure and Government Regulations. As used herein, the term "force majeure" shall mean any act of God, including without limitation, storms, floods, washouts, landslides and lightning. If either party is ordered, required or directed by an order, rule or regulation of a governmental authority (other than Pampa or Lubbock) having jurisdiction over such matters to cease its activities hereunder, or if either party is prevented from such activities by force majeure, then such party is relieved of its obligations under this Agreement; provided however, in no event shall performance hereunder be excused for a period in excess of a cumulative of ninety (90) days during the term of this Agreement. The party claiming force majeure or adverse governmental regulation shall provide notice of such event to the other party on or before seventy-two (72) hours after the occurrence of such claimed event. In the event notice is not provided to the other party as provided herein, it shall be deemed, for all purposes, as if no force majeure or adverse governmental regulation event has occurred. Pampa- Sale of Water Page 6 of 8 This Agreement is dated the 24th day of February , 2005, but effective for all purposes as of January 1, 2005. CITY OF LUBBOCK MARC McDOUGAL, MAYOR ATTEST: .—�-- Re ecca Garza, City Secretary APPROVED AS Thomas Adams Deputy City Manager APPROVED AS TO FORM: Richard K. Casner First Assistant City Attorney Pampa- Sale of Water Page 7 of 8 CITY OF PAMPA OjAjjN-S, MAYOR ATTEST: Phylli e fers, C Sec y APPR L AS TO FORM: Don R. Lane, City Attorney APPROVED BY THE BOARD OF DIRECTORS, CANADIAN RIVER MUNICIPAL WATER AUTHORITY on this the loth day of April , 2005. Kent - r►,h ATTEST: Name: Tamm6j Hamb Title: Fxamitivp AGGictant Richard/Pampa.CRMWA sale.agrmt 021405 Pampa- Sale of Water Page 8 of 8