HomeMy WebLinkAboutResolution - 2008-R0304 - Agreement To Provision Of Water - Roosevelt ISD - 08_19_2008Resolutiou No. 2008-R0304
August 19, 2008
Item No. 2.7
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 and Release
Related to Provision of Water by and between the City of Lubbock and Roosevelt
Independent School District, and all related documents. Said Agreement and Release
Related to Provision of Water 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 19th day of August 2008.
<-�4w ovl�rlow�
TCFM MARTIN, MAYOR
ATTEST:
APPROVED AS TO CONTENT:
Deputy City Manager
APPROVED AS TO FORM:
.� G^r-�E�
Richard K. Casner
First Assistant City Attorney
Roosevelt ISD.res
Resolution No. 2008-RO304
AGREEMENT AND RELEASE
RELATED TO PROVISION OF WATER
This Agreement and Release Related to Provision of Water (the "Agreement") is entered
into effective this 19th day of August , 2008, by and between the City of Lubbock,
Texas, a Texas home rule municipal corporation (the "City") and Roosevelt Independent School
District, an independent school district of the State of Texas ("RISD").
WITNESSETH
WHEREAS, RISD operates a school in eastern Lubbock County, Texas wherein
groundwater is utilized for its public water supply;
WHEREAS, RISD has experienced issues regarding the quality of the groundwater;
WHEREAS, the City owns and operates an effluent land application site, located in
Lubbock County, Texas;
WHEREAS, RISD has alleged that Lubbock's effluent application practices have
impaired, to some extent, RISD's water supply;
WHEREAS, bonafide disputes and controversies exist between the City and RISD, both
as to liability and the amount thereof, if any, and for 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 RISD has or may have arising from or related to the alleged impairment
of RISD's water supply as a result of the City's effluent land application operations and desire
and intend that the full terms and conditions of the agreement be set forth in this document.
NOW, THEREFORE, the City and RISD, for and in consideration of the mutual
promises, covenants, obligations, and benefits described in this Agreement, said consideration
including inducement for the City to execute an amendment of water supply contract with the
Town of Ransom Canyon ("Ransom Canyon"), the receipt and sufficiency of such consideration
being acknowledged and stipulated, City and RISD agree as follows:
Section 1.01. Provision of Water. The City hereby agrees to offer to Ransom Canyon to
amend (the "Ransom Canyon Amendment") that certain Contract, dated on or about December
15, 1988, Resolution No. 2987 (the "Ransom Canyon Contract"), whereby Ransom Canyon shall
contract with the City for deliveries of additional potable water for ultimate delivery by Ransom
Canyon to RISD. The Ransom Canyon Amendment shall provide that Ransom Canyon is bound
to deliver water to RISD, in the event so requested by RISD, and provide a dedication to RISD of
a portion of the water provided to Ransom Canyon by the City, as follows: the amount of
100,000 gallons during any 24-hour period of time; and the amount of 36,500,000 gallons during
any 365 day period of time and 36,600,000 gallons during any 366 day period of time. A true
and correct copy of the proposed Ransom Canyon Amendment is attached hereto as Exhibit
"A". If Ransom Canyon refuses the offer to amend that certain Ransom Canyon Contract, then
the City of Lubbock agrees to negotiate with RISD for the sale of water for the same amounts of
water and related time frames outlined above.
This agreement (either partially or wholly) is not effective, and may not be enforced,
unless and until the Ransom Canyon Amendment is executed by all necessary parties and
becomes effective. This Agreement shall be null and void and without effect whatsoever if the
City and Ransom Canyon shall not have entered into the Ransom Canyon Amendment on or
before 90 days after the effective date hereof.
Section 1.02. Charges for Water. The Ransom Canyon Amendment shall provide that
Ransom Canyon shall charge to, and collect from RISD for the retail water service provided by
Ransom Canyon to RISD a maximum of sixty percent (60%) over and above the actual cost of
RISD — Agreement Related to Provision of Water Page 2 of 15
the water sold by the City to Ransom Canyon, as evidenced by the billing from the City, said
increase related to costs for administration and system delivery expenses of Ransom Canyon.
Section 1.03. RISD Agreement with Ransom Canyon. On or before the effective date of
this Agreement, RISD shall enter into a contract or service agreement with Ransom Canyon for
the purchase by RISD of up to 100,000 gallons of water during any 24 hour period of time,
36,500,000 gallons during any 365 day period of time, and 36,600,000 gallons during any 366
day period of time, at a point of delivery mutually acceptable to RISD and Ransom Canyon.
RISD shall not be permitted to bank or carry over any unused water for use in the next year or to
any future years during the term of this Agreement.
The delivery of the potable water to Ransom Canyon, as provided in the Ransom Canyon
Amendment, shall satisfy, in all events and circumstances, and for all purposes, the City's
obligations to RISD hereunder. RISD acknowledges and stipulates that the responsibility for
service to it is solely by and between RISD and Ransom Canyon, except as provided below.
Section 1.04. Use of Water. RISD expressly stipulates that the water provided to it via
the Ransom Canyon Amendment, shall be utilized by RISD solely on the grounds of the RISD
campus, described in Exhibit "B", attached hereto, for non -irrigation purposes.
Notwithstanding the prohibition on irrigation use of such water, RISD may incidentally utilize
the water for minor irrigation activities due to the configuration of existing RISD infrastructure,
as depicted on Exhibit "C", attached hereto.
Section 1.05. Quality of Water. RISD expressly stipulates that the City shall have no
responsibility of any kind or nature concerning the quality of the water delivered to RISD by
Ransom Canyon and that all issues of water quality shall be addressed in the contract or service
agreement by and between RISD and Ransom Canyon. RISD further expressly stipulates that all
RISD — Agreement Related to Provision of Water Page 3 of 15
responsibility and liability for the quality of water delivered by the City to Ransom Canyon
ceases at the point of delivery, as defined in the Ransom Canyon Contract.
THE CITY MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO
THE DESCRIPTION, TITLE, VALUE, QUALITY, PHYSICAL CONDITION,
MERCHANTABILITY, OR FITNESS FOR PURPOSE OF THE WATER, EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT. City warrants that the water it provides to
Ransom Canyon as anticipated by this Agreement will be of similar quality as supplied to
citizens and residents of the City of Lubbock, 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 required 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
defined in the Ransom Canyon Contract, as same may be amended from time to time, as
applicable during the term of this Agreement. RISD further acknowledges that, in entering into
this Agreement, it has relied solely upon its independent examination of Ransom Canyon's
potable water system and water and the independent estimates, computations, evaluations and
studies based thereon. The City makes no warranty or representation as to the accuracy,
completeness or usefulness of any information furnished to RISD or Ransom Canyon, if any.
Reliance on any material so furnished shall not give rise to any cause, claim or action against the
City, its officers, employees, elected officials and/or agents, and any such reliance shall be at
RISD's sole risk. RISD shall be responsible at all times for the sanitary and safe condition of the
water provided to it by Ransom Canyon, and shall comply with all statutes, laws, rules,
RISD — Agreement Related to Provision of Water Page 4 of 15
regulations and orders of the Texas Commission on Environmental Quality and any other agency
or entity having jurisdiction over such matters, regarding maintenance of water quality.
Section 1.06. Construction Activities. It will be necessary to design and construct water
delivery infrastructure (the "Subject Infrastructure") to accomplish the delivery of water from
Ransom Canyon to RISD, as described herein. RISD and the City agree that RISD shall, subject
to the below described provisions, be responsible for all activities and costs related to the design
and construction of the Subject Infrastructure.
(i) Design - RISD shall retain a Registered Professional Engineer licensed by the State of
Texas to prepare the engineering design of the Subject Infrastructure. The City shall have the
right to review and approve the design of the Subject Infrastructure, such approval to not be
unreasonably withheld. In the event the City and RISD cannot agree on the design of the Subject
Infrastructure, the decision of the City shall be final and binding for all purposes.
(ii) Construction — RISD shall comply with all applicable laws regarding the procurement
and solicitation of any work regarding the construction of the Subject Infrastructure. All
processes related to such procurement shall be documented by RISD and provided to the City, if
so requested by the City. No construction of the Subject Infrastructure shall be commenced
unless and until the plans and design of the Subject Infrastructure have received the prior written
approval of the City. The design and construction of the Subject Infrastructure shall be in
conformity with the Design Standards and Specifications for Water and Sewer, said standards
being provided to RISD prior to the execution hereof by RISD.
RISD shall submit to the City true and correct copies of all invoices related to the Subject
Infrastructure received by it, whether invoiced by the design engineer, party providing the
RISD — Agreement Related to Provision of Water Page 5 of 15
construction activities, or any other party or matter related to the design and/or construction of
the Subject Infrastructure.
The City shall have the right, at all times, to observe any and all activities related to the
construction or any other activity related to the Subject Infrastructure.
(iii) Finance of Activities - Except as specifically provided in Section 1.07, below,
RISD is responsible for all costs and expenses, of any kind, type or nature, related to the design
and construction of the Subject Infrastructure.
(iv) Attorney Opinion - RISD shall, as a condition precedent to any performance
required of or by the City under this Agreement, submit to the City, in form and substance
satisfactory to the City, an opinion to the City, prepared by an attorney licensed to practice in the
State of Texas and approved by the City, opining that all obligations of RISD provided in this
Agreement constitute non -usurious, irrevocable, valid and binding obligations of RISD in
accordance with all of the terms of this Agreement.
(vi) City Not Responsible - Notwithstanding the rights of the City to approve and/or
observe certain activities as prescribed herein, the City shall not have any liability or
responsibility, and RISD hereby expressly releases the City, its elected officials, officers, agents,
and employees from, any liability or responsibility for such activities and/or for any defect of any
kind, type or nature, in the Subject Infrastructure. Further, such rights of the City shall not
relieve RISD from any or all of its obligations provided herein. RISD further expressly
stipulates that the City shall have no responsibility of any kind for (i) the design and/or
construction of the Subject Infrastructure; or (ii) the pressure or rate of water delivery from
Ransom Canyon to RISD and that any requirements, terms, provisions, obligations or conditions
on the rate of water delivery, pressure of such delivery, place of delivery, method of delivery
RISD — Agreement Related to Provision of Water Page 6 Of 15
and/or any other matter of any kind related to the water delivery and/or sale by Ransom Canyon
to RISD, shall solely be by and between RISD and Ransom Canyon and shall be addressed in the
contract or service agreement by and between Ransom Canyon and RISD.
Section 1.07. City Participation in Construction. In consideration of the release by RISD
and the mutual agreements, covenants and obligations set forth herein, the City hereby agrees to
provide to RISD One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) (the "City
Participation Amount") to assist RISD in the design and construction of the Subject
Infrastructure related to the delivery of water from Ransom Canyon to RISD. City shall pay the
City Participation Amount to RISD within thirty (30) days after the execution by the City and
Ransom Canyon of the Ransom Canyon Amendment, and such payment is a condition precedent
to the releases of the City provided herein and the obligation of RISD to perform any of the
duties it undertakes via this Agreement.
Section 1.08. Release by RISD. In consideration of the payment of the City Participation
Amount, the benefits that RISD may enjoy due to the City of Lubbock agreeing to deliver water
to Ransom Canyon for the benefit of RISD, as provided by the Ransom Canyon Amendment,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and stipulated by all parties hereto, RISD does hereto enter into this Agreement
and does hereby release, acquit and forever discharge the City, its predecessors, successors,
assigns, City Council, managers, employees, directors, legal representatives, agents and attorneys
(collectively, the "Releasees") of and from any and all liabilities, claims, demands, damages,
attorney's fees, costs, liens, whether statutorily provided or otherwise, expenses, services,
actions, causes of action, or suits in equity, for whatsoever kind or nature, whether heretofore or
hereafter accruing, which RISD now has or may hereafter have, whether known or unknown, for
RISD — Agreement Related to Provision of Water Page 7 of 15
or because of any matter or thing done, admitted or suffered as a direct or indirect result of or
related to in any way, manner or form, the land application or storage of effluent activities of the
City, including without limitation, the impairment of groundwater therefrom and/or any other
activity or omission of the City that could have a detrimental affect on the quality of groundwater
(the "Activities")
This Agreement includes any transaction, occurrence, matter or thing whatsoever,
whether known or unknown, arising from or related to the Activities, including but not limited
to, all claims, demands, causes of action of any nature, whether in contract or in tort, or arising
out of, under or by virtue of the United States or Texas Constitution, or any statute, rule, order or
regulation, or judicial decision that is recognized by law or that may be created or recognized in
the future by any manner, for past, present and future damages or loss, or remedies of any kind,
including but not limited to: all actual damages, damages to real property, inverse condemnation,
all exemplary and punitive damages, all penalties of any kind or statutory damages. RISD
hereby declares that it fully understands the terms of this Agreement, and voluntarily accepts the
above stated consideration for the purposes of making full and final settlement of any and all the
injuries, damages, expenses, and inconveniences above mentioned.
The release and discharge of liability of City and its officials stated herein is expressly
made contingent on payment by City to RISD of the City Participation Amount as provided in
this Agreement, and in no event shall RISD be bound by said release of liability if City refuses or
fails to pay the City Participation Amount as provided herein. In the event that City refuses or
fails to pay the City Participation Amount to RISD as provided herein, RISD expressly reserves
its right to proceed against City in any court of competent jurisdiction with and for any and all
liabilities, claims, demands, damages, attorney's fees, costs, liens, whether statutorily provided
RISD — Agreement Related to Provision of Water Page 8 of 15
or otherwise, expenses, services, actions, causes of action, or suits in equity, for whatsoever kind
or nature, whether heretofore or hereafter accruing, whether known or unknown, for or because
of any matter or thing done, admitted or suffered as a direct or indirect result of or related to in
any way, manner or form, the land application or storage of effluent activities of City, including,
but not limited to, the impairment of groundwater therefrom and/or any other activity or
omission of City that could have a detrimental affect on the quality of groundwater. Upon
payment of the City Participation amount, RISD shall execute and deliver to the City on
acknowledgement of (i) the receipt of such payment; and (ii) the satisfaction of all contingencies
and conditions of the releases of the City by RISD as is prescribed in this Section 1.08.
RISD hereby represents and warrants to City that it, and it alone, owns the rights,
interests, demands, actions, or causes of actions, obligations or any other matter covered by this
Agreement.
It is further expressly understood, stipulated and agreed that the terms of this Agreement
are contractual and not merely recitals and that the agreements herein contained and the
consideration set forth herein is to compromise doubtful and disputed claims, avoid litigation,
buy peace, and that no payments made nor released or other consideration provided shall be
construed as an admission of liability, all liability being expressly denied by Releasees. RISD,
by entering into this Agreement, acknowledges that the settlement set forth herein is a
compromise of disputed claims as to the liability of the Releasees for RISD's injuries and
damages, if any, and the consideration made herein is not to be construed as an admission of
liability on the part of the Releasees. It is understood and stipulated by RISD that the existence
of any liability or wrongdoing has been, and continues to be, expressly denied by the Releasees.
RISD — Agreement Related to Provision of Water Page 9 Of 15
All signatories to this Agreement hereby warrant to the other that they have the authority
to execute this Agreement and bind the respective parties. If this Agreement does not become
effective for any reason, it shall be deemed negotiations for settlement purposes only and shall
not under any circumstance be admissible in evidence or usable for any purposes whatsoever.
This Agreement has been and shall be construed to have been drafted by all parties thereto so
that any rule of construing ambiguities against the party drafting the Agreement shall have no
force or effect.
If any provision, word, phrase, clause, sentence or paragraph of this Agreement or the
application thereof to any person or circumstance is or shall ever be held by court of competent
jurisdiction to be invalid, void, or unenforceable, the remainder of this Agreement and the
application of such provision, word, phrase, clause, sentence or paragraph or other part of this
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 1.09. Current Revenues. Any and all consideration payable hereunder shall be
paid by the current revenues available to the paying party. City and RISD herein recognize that
the continuation of any agreement at the close of any given fiscal year of the City of Lubbock,
Texas, or of the Roosevelt Independent School District, shall be subject to budget approval by
each governmental unit's governing body, conditioned on a best efforts attempt by each
governmental unit's governing body to obtain and appropriate funds for payment of the amounts
due under this Agreement.
Section 1.10. Effective Date. The effective date of this Agreement shall be
1, 2008. Notwithstanding the effective date, the execution by each party hereto
RISD — Agreement Related to Provision of Water Page 10 Of 15
creates an irrevocable obligation of each respective party according to the terms, provisions and
conditions set forth herein.
Section 1.11. Applicable Law and Venue. This Agreement shall be construed under the
laws of the State of Texas and all obligations of the parties hereunder are performable in
Lubbock County, Texas. SOLE AND EXCLUSIVE VENUE FOR ANY ACTION ARISING
HEREUNDER OR RELATED HERETO SHALL LIE SOLELY WITHIN THE COURTS OF
COMPETENT JURISDICTION IN LUBBOCK COUNTY, TEXAS.
EXECUTED this 19th day of August , 2008.
CITY OF LUBBOCK
TOM MARTIN, MAYOR
ATTEST:
Reb cca Garza; City Secretary
APPROVED AS TO CONTENT:
Th mas Adams, Deputy ity Manager/Water Utilities Director
APPROVED AS TO FORM:
Richard K. Casner, First Assistant City Attorney
RISD — Agreement Related to Provision of Water Page 11 of 15
ROOSEVELT INDEPENDENT SCHOOL DISTRICT
BY: /
NAME:��sv�
TITLE: ,��/%��� �✓/��
ATTEST:
ml/Richard/RISD-Agee related to provision of water- 032608August 9, 2007 as amended by TAdams Feb 4, 2008.
RISD — Agreement Related to Provision of Water Page 12 Of 15
Resolution No. 2008-RO304
EXHIBIT "A"
To
AGREEMENT AND RELEASE
RELATED TO PROVISION OF WATER
PROPOSED RANSOM CANYON AMENDMENT
RISD — Agreement Related to Provision of Water Page 13 of 15
G
Resolution No. 2008-RO304
TOWN OF RANSOM CANYON
24 LEE KITCHENS DRIVE
RANSOM CANYON, TEXAS 79366-2299
(806) 829-2470 • FAX (806) 829-2680
July 24, 2008
Mr. Tom Adams
Deputy City Manager
City of Lubbock
P.O. Box 2000
Lubbock, TX 79457
Dear Tom,
Attached, please find an executed copy of the contract between the Town of Ransom
Canyon and the Roosevelt Independent School District for water services. Should
you have any questions or require further information, please feel free to contact me
at 829-2470.
an ^
r�
urvat M a
City Secretary
Town of Ransom Canyon
806-829-2470
State of Texas §
County of Lubbock §
This contract is made by and between the Town of Ransom Canyon (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 Roosevelt Independent School District (herein called "DISTRICT'), a school
district in Lubbock county, acting by and through its undersigned duly authorized
superintendent, authorized by specific action of its Board of Trustees.
1. RECITALS
1-1. This contract is made to provide DISTRICT 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 DISTRICT's water system to make water available for
property located within the Roosevelt ISD facilities located in Lubbock County
Texas.
1-2. For and in consideration of the mutual agreement, covenants, obligations, and
benefits of this Contract, the CITY and DISTRICT contract and agree as follows:
No Text
2. DEFINITIONS
All words and phrases used in this contract shall be construed interpreted in
accordance with their accepted construction and usage in the operation of
municipally -owned water utilities at the time this contract is signed.
3. DISTRICT APPLIES FOR WATER SERVICE
DISTRICT makes application to CITY that CITY furnish water service to DISTRICT
by providing access to CITY'S existing water system and by constructing and
maintaining water system capacity adequate to provide water service to DISTRICT
water system for the facilities described in this contract.
4. TERMS PROVISIONS AND CONSIDERATIONS
CITY will furnish such services as required by the terms of this contract in
consideration of the commitments made by DISTRICT to CITY and to each other
under the terms of this contract.
5. CITY SHALL FURNISH CERTAIN WATER SYSTEM FACILITIES AND
DISTRICT SHALL COMPLY WITH CERTAIN CONDITIONS OF SERVICE•
MUTUAL CONDITIONS: TERM
6. 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 DISTRICT'S water
system for the DISTRICT'S facilities under such conditions as are provided as
follows:
2
6-1.1 Ouality and Treatment
Potable water of similar quality supplied to citizens and residents of the Town of
Ransom Canyon, Texas, treated by disinfectants and such other treatment as may
in the future be directed by the City Council of the Town of Ransom Canyon
meeting the applicable quality standards of the Texas State Commission on
Environmental Quality 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.
6-1.2 Ouantity
CITY shall supply quantities of water to DISTRICT not to exceed any of the
following limitations:
100,000 gallons (0.261 acre-feet) during any 24-hour period of time; or
36,500,000 gallons (95.211 acre-feet) during any 365-day year period of
time, and 36,600,000 gallons (95.472 acre-feet) during any 366-day year
period of time,
as measured at the POINT OF DELIVERY.
The POINT OF DELIVERY will be at a measuring device located within 100-feet
of the DISTRICT'S connection into the CITY'S existing 6-inch pipeline between
the CITY'S water distribution system and the CITY'S elevated storage tank. The
location of the POINT OF DELIVERY is shown on the vicinity map attached
hereto as Exhibit "A" and made a part hereof for all purposes. The measuring
device shall be located in an area reasonably accessible by CITY at all times.
This CITY shall install a metering station at the POINT OF DELIVERY. The
measuring device will perform the following functions. (1) measure the
instantaneous flow of gallons per day; (2) measure peak hourly flow during the
day of maximum flow in gallons per day; and (3) measure the cumulative volume
of water taken. 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
6-2.5 and 6-3.1 of this contract and shall be contingent upon the CITY's
completion of facilities necessary or convenient to deliver the water from the
CITY'S existing facilities to the POINT OF DELIVERY, which shall not be
unreasonably delayed by the CITY. Title to the water delivered by CITY to
DISTRICT shall change at the measuring device as provided by paragraph 6-1.3
of this contract.
6-1.3 Point of Delivery and Pressure
Water will be delivered at a reasonable flow rate adequate to meet maximum
daily demand and at an adequate pressure at the meter located at the point of
delivery to transport water to the DISTRICT's water storage facility. 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
DISTRICT as shown in exhibit "A", attached hereto and made a part hereof.
6-1.4 Metering Equipment
CITY shall install and maintain, at its own expense, the necessary metering
equipment at the POINT OF DELIVERY and the required devices of standard
N
type for properly measuring the quantity of water delivered to the DISTRICT.
The CITY shall perform maintenance on such equipment and required devices not
less frequently than once every twelve (12) months, or more frequently than once
every three (3) months. If the metering equipment installed by the CITY at the
POINT OF DELIVERY has a margin of error of three percent (3%) or less when
tested, then its readings shall be deemed to be accurate. If testing reveals that
previous readings of the metering equipment were inaccurate then CITY shall
correct these previous readings in accordance with the percentage of inaccuracy
found by such tests for a period extending back one-half (112) of the time elapsed
since the last calibration date of the metering equipment 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 to the DISTRICT cannot be ascertained or
computed from the reading thereof, then 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 as determined by the CITY and DISTRICT. The metering
equipment register shall be read by the CITY at least once a month.
6-1.5 Billing Procedure
A monthly statement of the amount of water determined to be consumed by
DISTRICT through the meter described in section 6-1.2 of this contract during the
preceding month shall be mailed to DISTRICT. All statements for water so
consumed shall be due and payable in accordance with Chapter 2251 of the Texas
Government Code. Any interest charged by the City for overdue payments shall
be in accordance with Chapter 2251 of the Texas Government Code. If the
5
District fails to make timely payments as provided for under this Contract, the
CITY may suspend its services in accordance with Chapter 2251 of the Texas
Government Code. In the event of such suspension, the DISTRICT 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 the CITY declaring this
contract forfeited and null and void.
6-2 Conditions of Service
DISTRICT shall comply with continuing conditions of receiving service as
follows:
6-2.1 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
the POINT OF DELIVERY as described in this contract to the DISTRICT. CITY
shall be under no obligation whatsoever to bear any of the DISTRICT'S expenses
in maintaining the DISTRICT'S water system. After the CITY'S installation of
the meter and system separation facilities, DISTRICT shall not alter, modify, or
improve the meter and system separation facilities without the prior approval of
the proposed changes by 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
Subject to the payment provisions of Ch. 2251 of the Tex. Gov't Code, 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. CITY shall charge to, and collect from, DISTRICT
for the retail water service provided herein a maximum of sixty percent (60%)
over and above the actual cost of the water sold by the City of Lubbock to CITY,
as evidenced by the billing from CITY, said increase related to costs for
administration and system delivery expenses of CITY. This rate may be, from
time to time, modified or amended if mutually agreed to in writing by both
parties. In the event of such modification or amendment, the rate change shall be
construed so as to apply to the most recent modification or amendment to the rate
change, if any. In the event the rate for water delivered pursuant to this contract is
modified or amended, the CITY shall furnish written notice to the DISTRICT of
such rate amendment or modification at least ninety days prior to the effective
date of such rate change, together with the costs and tables used in calculating the
rate. The rates charged do not imply or include service by the CITY beyond the
CITY'S point of delivery; it being the intent of this contract that all expenses on
DISTRICT'S side of the point of delivery as defined in this contract shall be the
sole expense of DISTRICT. If a court of competent jurisdiction, the Texas
Commission on Environmental Quality or its successors, or any federal or state
regulatory authority finds that CITY rates or policies for delivering water to
7
DISTRICT under this contract are unenforceable, the CITY and DISTRICT shall
negotiate a subsequent rate.
6-2.3 Service Area
DISTRICT will limit service to its own facilities owned by the DISTRICT in
Lubbock County, Texas.
6-2.4 SanilM Control
DISTRICT shall maintain at all times a method acceptable to CITY for
maintaining sanitary control, between the DISTRICT'S pipeline that transports
the water received from CITY. However, the CITY shall not be unreasonable in
determining that the DISTRICT'S sanitary methods are unacceptable to CITY.
DISTRICT shall provide and maintain any and all devices and methods required
or suggested by federal, state, or local regulatory authorities or by the CITY that
are reasonably necessary to maintain sanitary control of the DISTRICT'S water
system and prevent back -flow from DISTRICT'S system to CITY'S system.
DISTRICT shall not allow service by direct pressure from the CITY'S supply,
except in cases of emergency. DISTRICT shall permit personnel of CITY to
enter upon the property of DISTRICT for the purpose of inspecting any and all
facilities to determine whether DISTRICT is maintaining the required sanitary
control measures. 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 Texas Commission on Environmental
Quality or other federal, state or local regulatory authorities, then CITY shall
notify the DISTRICT in writing of such condition and the DISTRICT shall
8
correct such condition within a reasonable time. In the event DISTRICT fails to
correct such condition within a reasonable time, the CITY may, at its sole
discretion either correct the condition, and include the cost of materials and labor
incurred by the CITY in correcting such condition in subsequent billing
statements from CITY to DISTRICT or cease delivering water under this contract
until such condition is corrected to the reasonable satisfaction of the CITY. In the
event the CITY determines that contamination of CITY'S water supply by
DISTRICT'S water supply exists, the CITY shall have the absolute right to
discontinue service to DISTRICT until such time as said contamination has been
eliminated by DISTRICT. Unless it would present a public danger to do so, the
CITY shall disclose to the DISTRICT all information the CITY considered in
determining that the DISTRICT'S water system is contaminated. 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
DISTRICT and the DISTRICT 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.
6-2. S Water Conservation
DISRICT shall comply with CITY'S water conservation and rationing plans and
ordinances to the extent necessary to conserve and ration the water delivered by
i
CITY to DISTRICT under this contract and to the extent that such water
conservation and rationing plans are equally required of CITY's other water
consumers/clients. DISTRICT 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 water made available under this
contract is used in an economically -sensitive manner and designed to reduce the
consumption of such water, reduce the loss or waste of such water, improve the
efficiency in the use of such water. DISTRICT shall furnish CITY a copy of such
conservation plan from time to time, as requested by the CITY within ten (10)
days of said request. DISTRICT agrees that if water supplies or services are
curtailed within CITY, CITY may impose a like curtailment on deliveries of
water to DISTRICT under this agreement and DISTRICT will cooperate by
imposing conservation measures upon its uses of water made available under this
contract. 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 Commission on Environmental Quality, the Texas
Water Development Board, or any other additional federal, state, or local
regulatory authority with power to require or approve water conservation and
drought contingency plans.
6-2.6 Public Property
CITY will assume the affirmative duty to acquire easements, at its cost, for use by
the CITY between CITY'S water system as it exists on the date this contract is
10
signed and the location of the measuring device at the POINT OF DELIVERY as
shown described in this contract and shown on Exhibit "A." DISTRICT shall
acquire, at its expense, all easements, approvals, facilities required between the
measuring device and DISTRICT'S water system. CITY shall grant DISTRICT
use of CITY's rights -of -way or easements for the placement of DISTRICT's
water line.
6-2.7 Right of Entry
DISTRICT shall authorize CITY, its agents, employees and contractors, entry
upon the DISTRICT'S property where DISTRICT'S potable water facilities are
located for the purpose of obtaining water samples and performing tests to
determine actual or potential production. The entry, sampling, and testing shall
be performed at reasonable times, with advance notice to and prior approval of the
DISTRICT. DISTRICT may have a representative present during any entry,
sampling or testing done on the DISTRICT'S property. CITY'S entry upon the
property and its sampling and testing shall be performed in compliance with
DISTRICT'S rules and regulations adopted to protect persons on the property and
the sanitary condition of DISTRICT'S water supply.
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, alternations,
strikes, lockouts, labor, controversies, accidents, or acts of God, the elements, or
any other cause beyond the reasonable control of CITY. In case of reason of
Force Majeure that either party hereto is rendered unable, wholly or in part, to
carry out its obligations under this contract, other than the obligation of the
DISTRICT to make the payments required under the terms hereof, to comply with
applicable federal, state, and local regulatory authorities having or asserting
jurisdiction over the operation of DISTRICT'S water supply, and to meet sanitary
control requirements as hereinabove ser 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 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 of overcome such inability within
all reasonable dispatch. The terms "Force Majeure" as employed herein shall
mean, but without limitation, the following, if beyond the control of the party
alleging the "Force Majeure", 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 Senate 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 DISTRICT to receive water
12
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 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 DISTRICT under this contract shall be reduced or diminished in the
same ratio or proportion as the supply to other customers comparable to
DISTRICT is reduced or diminished.
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 CITY to comply with the Texas Commission on Environmental
Quality and other local, state and federal governmental agencies, and CITY and
DISTRICT 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 local laws and any applicable ordinances, rules, orders, and regulations
of any local, state or federal governmental authority having or asserting
jurisdiction including, but not limited to, the rate -fixing power of the Texas
Commission on Environmental Quality. 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
13
conditions of this contract in any forum having jurisdiction, and DISTRICT 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 DISTRICT shall bind the successors and assigns of
either party, whether so expressed or not; but neither CITY nor the DISTRICT
shall have the right to assign this contract, or any party thereof, except as
hereinafter provided, without the written consent of the other party. Either party
may waive any default on the part of the opposite party affecting any 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 DISTRICT by implication or
otherwise except as expressly set forth this contract.
6-3.4 Notice of Violation
In the event that either the CITY or the DISTRICT should violate any of the terms
of paragraph 6, hereof, the other party shall promptly notify the other respective
party of the violation. Unless this contract provides otherwise, in the event said
violation is not cured within sixty (60) days after the sending of such notice, the
14
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 sixty
(60) days to cure said violation. Except as otherwise provided herein, if the party
in violation of the contract fails to cure the violation within sixty days from the
date it receives said notice then the other party may terminate this contract.. If,
however, the party's violation cannot be cured within the sixty (60) day period
and the party in violation of the contract continues the curing of the violation with
due diligence and continuity, then the violating party shall be granted a reasonable
amount of time in which to cure the violation before the other party may declare
the contract 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 DISTRICT.
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 DISTRICT.
6-4 Term of Contract
The terms of this contract shall be concurrent to the contract between the City of
Lubbock and the City of Ransom Canyon and shall automatically terminate and
be without any effect whatsoever upon the termination or expiration of the
contract between the City of Lubbock and the City of Ransom Canyon.
DISTRICT is given an option and contract for an additional thirty year period
provided that at least twenty-four (24) months prior to the expiration of the initial
15
term of this contract, CITY and DISTRICT in good faith begin to negotiate
another contract pertaining to purchase of water from CITY by DISTRICT
containing mutually agreeable terms, and conditions. If another contract is not
consummated, CITY shall not terminate service until DISTRICT has had two (2)
years in which to procure an alternate water services. This contract shall remain in
force until DISTRICT 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 DISTRICT'S or CITY'S
obligations under this contract could not be adequately compensated in money
damages alone, DISTRICT or CITY agree that in the event of any default on the
part of either party, that CITY or DISTRICT shall have available to them the
equitable remedy of mandamus and specific performances 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.
8. WAIVER
No failure on the part of the CITY at any time to require the performance by
DISTRICT of any proportion of this contract shall in any way affect the CITY'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 modification or amendment to
this contract may be made except by written amendment executed by both parties.
No officer or agent of DISTRICT or CITY is authorized to waive or modify any
16
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 DISTRICT'S
authorized representatives.
9. 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.
10. NOTICES
All notices, payments and communications ("notice") required or allowed by this
contract shall be in writing and be given by depositing the notice in the United
States mail post paid 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 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.
11. PLACES OF PERFORMANCE
17
All amounts due under this contract, including, but limited to, payments due
under this contract or damages for the breach of this contract, shall be paid in
Lubbock County, Texas, said Lubbock County, Texas, being the place of
performance agreed to by 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.
12. 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.
13. EFFECTIVE DATE
DISTRICT 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 24'h day of July, 2008
TON
CIT
IM
CITY SECRETARY
MAILING ADDRESS for notice:
Town of Ransom Canyon
24 Lee Kitchens Drive
Ransom Canyon, Texas 79366
ACCEPTED AND EXECUTED as of the 24'h day of July, 2008
18
ATTEST:
MAILING ADDRESS for notice:
Roosevelt ISD
1406 CR 3300
Lubbock, Texas 79403
ROOSEVELT ISD
BY: 4i
DR BERHL ROBERTSON,
SUPERINTENDENT
19
Resolution No. 2008-RO304
F------ ------ ...... ......
RANSOM CANYON ELEVATED
STORAGE TANK
TO RANSOM CANYON WATER
DISTRIBUTION SYSTEM
..... ...... ...... ...... ......
SECURITY FENCE
I
D
OOSEVELT
11)
'OF
IERY
CARTHEL ENGINEERING
Eksipw by: CTC
ROOSEVELT ISD
SOLUTIONS
Short No.
lProject
I
I
2201 Usivemity Ave., Suite 8
I
Drawn by: CTC
Lubbock Texas 79410
Reviewed by:
EXHIBIT A - POINT OF DELIVERY
Ph SO&M-9322
No.:
Fax 306-6i7-6323
EXHIBIT "B"
To
AGREEMENT AND RELEASE
RELATED TO PROVISION OF WATER
GROUNDS OF RISD CAMPUS
RISD — Agreement Related to Provision of Water Page 14 of 15
o
ROOSEVELT ISD CARTHEL ENGINEERING SOLUTIONS
_ • A° Z "� 2201 UNIVERSITY AVE. SUITE B
EXHIBIT B: LUBBOCK. TEXAS 7%10
-I ROOSEVELT ISD CAMPUS PHONE: FAX: 60"87-8323
EXHIBIT "C"
To
AGREEMENT AND RELEASE
RELATED TO PROVISION OF WATER
CONFIGURATION OF EXISTING RISD INFRASTRUCTURE
Richard/RISD-Agree related to provision of water-rdln062308
RISD — Agreement Related to Provision of Water Page 15 of 15
Resolution No. 2008-RO304
SCAM NP8 ® AREAS OF
INCIDENTAL
UMGAIION