Loading...
HomeMy WebLinkAboutResolution - 2003-R0113 - Contract For Services - Texas Water Development Company, LLC. - 03_05_2003Resolution No. 2003-RO113 March 5, 2003 Item No. 28 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Contract for services to evaluate and make recommendations on how the City of Lubbock can optimize existing and potential water supplies, between the City of Lubbock and Texas Water Development Company, LLC, and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 5th ATTEST: CQ C) Re ecca Garza, City Secretary APPROVED AS TO CONTENT: ichard Burdine, Assistant City Manager APPROVED AS TO FORM: &4"1 !rn ftss Anita Burgess, City Attorney dalccdocs/Contract - Texas Water Development Co.res March 5, 2003 day of March , 2003. Y MARC MQ OUGAL, MAYOR Resolution No. 2003-RO113 March 5, 2003 CONTRACT Item No. 28 This Contract is made and entered into by and between The City of Lubbock, Texas ("the City"); and Texas Water Development Company, LLC, dba "WaterTexas, a Texas limited liability company ("WaterTexas"). Section 1: TERM OF CONTRACT The term of this Contract shall begin when fully executed by all parties, and shall end thirty days after delivery of the Report (as defined in the Work) unless terminated earlier or extended pursuant to the provisions hereof. Section 2: TIME OF BEGINNING AND COMPLETION WaterTexas shall begin the work outlined in the "Scope of Work" section ("the Work") upon execution of this Contract by all parties, as provided in Section 1. The City will acknowledge in writing when the Work is complete. Section 3: SCOPE OF WORK A. The Scope of Work of this Contract and the time schedule for completion of such work is as described in Exhibit A, which is attached to and made a part of this Contract. The Work shall, at all times, be subject to the City's general review and approval. WaterTexas shall confer periodically with the City through its project liaison (as provided below) periodically during the progress of the Work, and shall prepare and present such information and materials as may be pertinent, necessary, or requested by the City to determine the adequacy of the Work or WaterTexas's progress thereon. B. The City will appoint a project liaison to serve as the access point to and contact person for to the City, its staff, and its resources. WaterTexas will communicate and/or meet with the project liaison on a regular basis, particularly with respect to any milestones that are jointly established. Section 4: PAYMENT/PAYMENT PROCEDURES A. For the Work provided by WaterTexas, the City will pay to WaterTexas a flat fee of $90,000.00. Payment shall be as follows: March 31 $10,000 April 30 $10,000 May 31 $10,000 June 30 $10,000 July 31 $10,000 August 31 $10,000 Delivery of Report $30,000 Total $90,000 CADocuments and Scttings\22736.000\L.oca1 Settings\Temp\Consultant Services Contract-Lubbock-304003.doc Page 1 The final payment of $30,000 is due and payable within ten (10) days after the delivery of the Report by WaterTexas and acceptance of the Report by the City, which acceptance will not be unreasonably withheld. B. In addition to the payments in A above, the City will reimburse WaterTexas for out-of-pocket expenses at the time of the final payment. The City will have the right to approve in advance any single expense greater than $2,500 and any expenses exceeding $5,000 in the aggregate. C. Payments to WaterTexas will be made by check delivered by regular mail at the address set forth in Section 5. D. WaterTexas will provide receipts and or other appropriate documentation for all out-of-pocket expenses submitted for reimbursement. If requested, WaterTexas will provide an written explanation of any expenses so submitted. Section 5: ADDRESSES FOR NOTICES AND DELIVERABLE MATERIALS All official notices under this Contract shall be delivered to the following addresses (or such other address(es) as either party may designate in writing): If to City: P.O. Box 2000 Lubbock, Texas 79457 Ate: Terry Ellerbrook Telephone: (806) 7 7 5— 2 5 8 5 Facsimile: (806) If to WaterTexas: 5840 Balcones Drive, Suite 200 Austin, Texas 78731 Attn: CEO Telephone: (512) 377-2100 Facsimile: (512) 377-2104 Section 6: LEGAL REQUIREMENTS A. General Requirement: WaterTexas, at no expense to the City, shall comply with all applicable laws of the United States and the State of Texas; the Charter and ordinances of the City; and rules, regulations, orders, and directives of their administrative agencies and the officers thereof. Without limiting the generality of this paragraph, WaterTexas shall specifically comply with the following requirements of this section. B. Licenses and Similar Authorizations: WaterTexas, at no expense to the City, shall secure and maintain in full force and effect during the term of this Contract all required licenses, permits, and similar legal authorizations, and comply with all requirements thereof. C:\Documents and Settings\22736.0001Local SettingATemp\Consultant Services Contract-Lubbock-304003.doc Page 2 Section 7: INDEMNIFICATION WaterTexas does hereby release and shall defend, indemnify, and hold the City and its employees and agents harmless from all losses, liabilities, claims, costs (including attorneys' fees and court cots), actions or damages arising out of WaterTexas's performance of the services contemplated by this Contract to the extent directly attributable to the grossly negligent acts or omissions of or willful misconduct by WaterTexas, its servants, agents, and employees. Section 8: AUDIT Upon request, WaterTexas shall permit the City to inspect and audit all pertinent books and records of WaterTexas, during normal business hours upon reasonable written notice by the City. WaterTexas shall supply the City with, or shall permit the City to make, a copy of any books and records and the pertinent portion thereof. Section 9: CONTRACTUAL RELATIONSHIP The relationship of WaterTexas to the City by reason of this Contract shall be that of an independent contractor. This Contract does not authorize WaterTexas to act as the agent or legal representative of the City for any purpose whatsoever. WaterTexas is not granted any express or implied right or authority to assume or create any obligation or responsibility on behalf of or in the name of the City or to bind the City in any manner or thing whatsoever. Section 10: ASSIGNMENT AND SUBCONTRACTING WaterTexas shall not assign this Contract any of its obligations under this Contract without the City's prior written consent. Any subcontract made by WaterTexas shall incorporate by reference all the terms of this Contract. WaterTexas shall ensure that all subconsultants comply with the obligations and requirements of the subcontract. The City's consent to any assignment shall not release WaterTexas from liability under this Contract, or from any obligation to be performed under this Contract, whether occurring before or after such consent or assignment. Section 11: NO CONFLICT OF INTEREST WaterTexas confirms that WaterTexas does not have a business interest or a close family relationship with any City officer or employee who was, is, or will be involved in the consultant selection, negotiation, drafting, signing, administration, or evaluating WaterTexas's performance. As used in this section, the term "WaterTexas" shall include any employee of WaterTexas who was, is, or will be involved in the negotiation, drafting, signing, administration, or performance of the Contract. As used in this section, the term "close family relationship" refers to the following: spouse or domestic partner; any dependent parent, parent -in-law, child, son-in-law, or daughter-in-law; or any parent, parent -in-law, sibling, uncle, aunt, cousin, niece or nephew residing in the household of a City officer or employee described above. Section 12: CONFIDENTIALITY CADoctunents and Settings\22736.000U-ocal ScttingslTcmp\Consultanl Services Contract-Lubbock-304003.doc Page 3 The parties agree that they will not permit the duplication or disclosure of any information designated in advance by the other party as "Confidential and Proprietary" to any person (other than its own employee, agent, or representative who must have such information for the performance of that party's obligations hereunder) unless such duplication, use or disclosure is specifically authorized in writing by the other party or is required by law. "Confidential and Proprietary" information does not include ideas, concepts, know-how or techniques related to information that, at the time of disclosure, is in the public domain unless the entry of that information into the public domain is a result of any breach of this Contract. Likewise, "Confidential and Proprietary" information does not apply to information that is independently developed, already possessed without obligation of confidentiality, or rightfully obtained from a third party without an obligation of confidentiality. Section 13: EXTRA WORK The City may desire to have WaterTexas perform work or render services in connection with this project other than that expressly provided for in the "Scope of Work" section of this Contract. This will be considered extra work, supplemental to this Contract, and shall not proceed unless authorized by an amendment. Any costs incurred due to the performance of extra work prior to execution of an amendment will not be reimbursed under this Contract or an amendment. Section 14: KEY PERSONS If, during the term of this Contract, any key person, as indicated in the Scope of Work, leaves WaterTexas's employment or ceases work on the project, WaterTexas shall present to the City one or more individual(s) or firms with greater or equal qualifications as a replacement or subcontractor, subject to the City's approval, which shall not be unreasonably withheld. Section 15: DISPUTES Any dispute or misunderstanding that may arise under this Contract concerning the parties performance shall first be resolved through amicable negotiations, if possible, between WaterTexas's Project Manager and the City's Project Manager, or if necessary shall be referred to the City Manager and WaterTexas's senior executive(s). If such officials do not agree upon a decision within a reasonable period of time, the parties may pursue other legal means to resolve such disputes, including but not limited to alternate dispute resolution processes. Section 16: TERMINATION A. For Cause: The City may terminate this Contract if WaterTexas is in material breach of any of the terms of this Contract, and such breach has not been corrected to the City's reasonable satisfaction within thirty (30) days after receipt by WaterTexas of written notice of such breach. WaterTexas may terminate this Contract if the City is in material breach of any of the terms of this Contract, and such breach has not been corrected to the City's reasonable satisfaction within thirty (30) days after receipt by the City of written notice of such breach. B. For Reasons Beyond Control of Parties: Either party may terminate this Contract without recourse by the other where performance is rendered impossible or impracticable for Q\Documcnts and Seuings\22736.000\Local Scttings\Tcmp\Consultant Smices Contract-Lubbock•304003.doc Page 4 reasons beyond such party's reasonable control such as but not limited to an act of nature; war or warlike operation; civil commotion; riot; labor dispute including strike, walkout, or lockout; sabotage; or superior governmental regulation or control. C. For City's Convenience: The City may terminate this Contract at any time, without cause and for any reason including the City's convenience, upon written notice to WaterTexas. D. Notice: Notice of termination pursuant to this section shall be given by the party terminating this Contract to the other not less than thirty (30) days prior to the effective date of termination. E. Actions Upon Termination: In the event of termination not the fault of WaterTexas, the City will pay WaterTexas for the services performed prior to termination, including a pro rata portion for all periods prior to the effective date of termination and a pro rata portion of the final payment (payment due upon delivery of the Report). In addition, the City will pay WaterTexas for any reimbursable expenses then due and unpaid, Mat in no event shall such compensation exceed the maximum compensation to be paid under the Contract. WaterTexas agrees that this payment shall fully and adequately compensate WaterTexas and all subconsultants for all profits, costs, expenses, losses, liabilities, damages, taxes, and charges of any kind whatsoever (whether foreseen or unforeseen) attributable to the termination of this Contract. Upon termination for any reason, WaterTexas shall provide the City with the most current documents, writings and other product it has completed to the date of termination, along with copies of all project -related correspondence and similar items. The City shall have the same rights to use these materials as if termination had not occurred. Section 18: MISCELLANEOUS PROVISIONS A. Amendments: No modification of this Contract shall be effective unless in writing and signed by an authorized representative of each of the parties hereto. B. Binding Contract: This Contract shall not be binding until signed by both parties. The provisions, covenants and conditions in this Contract shall bind the parties, their legal heirs, representatives, successors, and assigns. C. Applicable LawNenue: This Contract shall be construed and interpreted in accordance with the laws of the State of Texas. The venue of any action brought hereunder shall be in the courts of Lubbock County, Texas. D. Remedies Cumulative: Rights under this Contract are cumulative and nonexclusive of any other remedy at law or in equity. E. Captions: The titles of sections are for convenience only and do not define or limit the contents. F. Severability: If any term or provision of this Contract is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Contract shall not be CADocumcnts and Settings\22736.000%ocal ScUings\Tcmp\Consultant Services Contmct-Lubbock-304003.doc Page 5 affected thereby, and each term and provision of this Contract shall be valid and enforceable to the fullest extent permitted by law. G. Waiver: No covenant, term or condition or the breach thereof shall be deemed waived, except by written consent of the party against whom the waiver is claimed, and any waiver of the breach of any covenant, term or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term or condition. Neither the acceptance by a party of any performance by the other party after the time the same shall have become due shall constitute a waiver by such party of the breach or default of any covenant, term or condition, unless otherwise expressly agreed to by such party in writing. H. Entire Contract: This document, along with any exhibits and attachments, constitutes the entire agreement between the parties with respect to the Work. No verbal agreement or conversation between any officer, agent, associate or employee of the City and any officer, agency, employee or associate of WaterTexas prior to the execution of this Contract shall affect or modify any of the terms or obligations contained in this Contract. I. Negotiated Contract: The parties acknowledge that this is a negotiated Contract, that they have had the opportunity to have this Contract reviewed by their respective legal counsel, and that the terms and conditions of this Contract are not to be construed against any party on the basis of such party's draftsmanship thereof. IN WITNESS WHEREOF, in consideration of the terms, conditions, and covenants contained herein, or attached and incorporated and made a part hereof, the parties have executed this Contract by having their representatives affix their signatures below. CITY: City By: Nan Title: CONSULTANT: Texas Water Development Company, LLC dba WaterTexas ATTEST: CQJ,,O-� Reb cca Garza City Secretary CLf �0 By: _ -- Name: L Title: ?i ,r2Si Pti CADocuments and Settings\22736.000V-ocal Settings\TempTonsulum Services Contract-Lubbock-304003.doc V X I / Page 6 Approv+ -es,Worm; Wimam U. d® Maas Contract. MRnapor CADocuments and Settings\22736.000\Local Scttings\Tcmp\Consultant Services Contract-Lubbock-304003.doc Page 7 EXHIBIT A STATEMENT OF WORK Purpose: The purpose of the work is to evaluate and make recommendations regarding how the City can optimize existing and potential water supplies on a short-term, mid-term, and long-term basis, and to provide a written report containing an analysis of and recommendations regarding: The City's current water supplies from one end of its system to the other, including the reuse of treated effluent; Potential alternative water supply and reuse options; and The potential for realizing value from existing supplies when they are not being utilized by the City. Scope of Work: Described below is the proposed scope of work to be conducted by WaterTexas for the project. The overall objective of this Scope of Work (SOW) is to research, review, evaluate, and/or analyze the following questions, issues and concerns listed in Section I and perform the services and prepare and deliver the report described in Section II. SECTION I CRMWA 1. What is the ultimate capacity of the CRMWA pipeline and related water resources and to what degree can they meet Lubbock's future demands and the future demands of other CRMWA customer cities? 2. What are the projected costs and issues related to any system improvements or additional water supplies that are needed for CRMWA to meet such future demands (e.g., facility upgrades, additional pipelines or other infrastructure, new groundwater supplies, etc.)? 3. What is the viability of Lake Meredith as a potential water supply and what is the best estimate of firm yield for Lake Meredith? Bailey County Well Field 1. Can Lubbock's use of the Bailey County well field be expanded (e.g., can it be used for more than a peak day supply) and/or can a new well field be developed near the existing well field or elsewhere in Bailey County? 2. What are the projected costs and issues related thereto? 3. What is the estimated useful life of the existing well field and well field assets? CADocuments and Settings\22736.00OU.ocal Settings\Temp\Consultant Services Contract-Lubbock-304003.doc Page 8 Lake Alan Henry and the Post Reservoir 1. Given different demand scenarios, what is likelihood of utilizing Lake Alan Henry and the Post Reservoir as water supplies for Lubbock? 2. Under present and future conditions, what are the projected costs and issues related to utilizing Lake Alan Henry as a water supply for Lubbock? 3. Under present and future conditions, what are the projected costs and issues related to constructing the Post Reservoir and utilizing it as a water supply for Lubbock? 4. Are there ways to avoid all or part of the significant O&M costs associated with lifting water 1,000 feet in elevation from either or both reservoirs to Lubbock? 5. Are there ways to realize value from Lake Alan Henry (and the Post Reservoir, if constructed) prior to utilization as a Lubbock water sup—, y (e.g., cooling water for a power plant; .Vlterminal storage for another entity's water supply project)?. 6. Is one of the possible ways of realizing value to contract with a power generation company to provide the water for cooling or other needs of a power plant and what are the issues related to this possibility? Alternate Sources of Supply and Demand Issues 1. What other sources of supply should Lubbock consider? 2. What are the projected capital and operating costs and issues related to developing them and utilizing them as part of Lubbock's system? How do they compare to Lubbock's existing sources of supply? 4. Are their potential sources which could become acceptable water supplies if developed using reverse osmosis (RO) technologies and what are comparable costs and key issues in these RO projects? 4. What is the estimated demand for water use by the City and by the cities and communities in the general vicinity of the City (50 mile radius) under various growth and usage scenarios? 5. What are the potential markets in surrounding cities and communities for sale of excess water supply, what are the issues that will be encountered, and how will sales of excess water supply effect the costs of recommended projects? 6. How do the various supply alternatives and demand scenarios correlate to the City's water demand and supply over the planning period of the State Water Plan and what are the variances? Q\Documems and Settings122736.000\Locel ScttingsWempWonsultanl Services Contract-Lubbock-304003.doc Page 9 7. What are the potential risks for the various supplies from, and what could the costs be for compliance with, the Concentrated Animal Feeding Operations (CAFO) regulations of the U.S. Environmental Protection Agency (EPA). Alliances and Partnerships 1. Are there alliances or partnerships, public or private, that Lubbock could pursue to ensure that its customers have short-, mid-, and long-term water supplies of considerable quality at the lowest possible cost? 2. What are the projected costs and issues related to developing such alliances or partnerships? Water Conservation 1. What water conservation methods/alternatives are available to Lubbock to reduce the per capita consumption of water. SECTION II. Services To Be Performed WaterTexas will conduct an Opportunities Assessment for the City. The procedure therefore is as follows: WaterTexas will meet with the City's project liaison to: (i) assess the information, data, and resources available at the City; and (ii) to establish milestones for the project. 2. WaterTexas will conduct a comprehensive review and analysis of the City's current water supply situation in light of its existing water supplies, given demand scenarios over the short-, mid-, and long-term (1-5 years, 6-20 years, and 21-50 years, respectively). This analysis will include a general assessment of potential alternative water supply options not currently included in Lubbock's existing system or future planning options. 3. WaterTexas will utilize existing and available data and information, relying on reports and studies within the custody or control of the City, the State, and other entities in the South Plains region. WaterTexas will update existing and available data and information as appropriate and will evaluate it using a common cost -comparative, legal, regulatory, and institutional framework. 4. WaterTexas will prepare a template and methodology which uses uniform measuring factors for the City to use in water resource planning and analysis. CADocuments and Settings\1177SU_ocal Settings\Temp\Consultant Services Contract-Lubbock-304003.doc Page 10 Specific activities performed as part of the Opportunities Assessment will include: a) Evaluating Lubbock's water rights, water supply contracts, water use reports, bed and banks permits, wastewater discharge permits, rate structures, and bond capacity; b) Reviewing available water and wastewater master plans, studies, proposals, and reports (including the Llano Estacado Regional Water Plan) pertaining to the City's water supply, treatment, delivery, and reuse systems, and those of other water utilities in the area, and evaluating assumptions incorporated therein; c) Reviewing information and agreements related to Lake Alan Henry and the Post Reservoir; d) Reviewing landowner agreements and other land ownership information pertaining to the City's water supplies and water systems, including that pertaining to well field development and pipeline rights -of -way; e) Standardizing the assumptions of the different projects the City has evaluated, implemented, or might consider, including standardizing costs in terms current dollars and standardizing legal and regulatory frameworks in terms of current realities; f) Reviewing and evaluating relevant rules and regulations, including those of pertinent groundwater districts; g) Evaluating potential impacts (whether favorable or adverse) on special stakeholder groups that might result from different water supply options; h) Conducting interviews with City staff and outside consultants (e.g., engineers, financial advisors) regarding water supplies, infrastructure, and historical water management practices; and, i) Conducting interviews with outside interests, including CRMWA and potential suppliers of alternative water supplies not currently included in Lubbock's system (as appropriate and as specifically authorized by the City). 6. Subsequent scopes of work, if required, will involve either or both of the following: a) Comprehensive evaluation, analysis, and possible pursuit of potential alternative water supply options not currently included in Lubbock's water supply portfolio; and b) Comprehensive evaluation, analysis, and possible pursuit of options for realizing the value of Lubbock's water supplies when they are not being utilized. Terms and conditions for subsequent scopes of work will be determined by mutual agreement of the parties. 7. The time frame for the performance of the foregoing services and preparation and CADocuments and Settingsll 17781Local Scttings\Temp\Consultant Services Contract-Lubbock-304003.doc Page 11 delivery of the report is estimated as between six (6) to eight (8) months. 8. At the conclusion of the Opportunities Assessment, WaterTexas will prepare a written report to the City, which will set forth WaterTexas's findings, conclusions, and recommendations (the "Report"). The Report will be provided in draft form to City staff for initial review and comment. The comment period for this initial review will not exceed thirty (30) days. Once any comments or recommendations are received, WaterTexas will prepare a final Report. The final Report will include the following: Volume I. a) Table of Contents b) Summary c) Analysis and Recommendations (1) Existing Supplies (2) Projected Demand (3) Alternative Supplies and Strategies for Existing Supplies (4) Recommendations d) Conclusion and Suggestions for Subsequent SOWs Volume II. Exhibits, Appendices, and Supporting Documentation WaterTexas will provide five (5) complete (Volumes I and 11) copies of the Report to the City Manager, and one (1) copy of the complete Report for each member of the City Council. Ten (10) additional copies of Volume I and an electronic version of Volume I will be provided. Additional copies of the Report will be provided upon request and at the expense of the City. In addition, WaterTexas will provide a similar number of hard and electronic copies of the presentation and workshop materials, as discussed below. 9. WaterTexas will conduct at least one (1) but not more than two (2) workshops with the City Council to present and explain our report and to respond to any questions the City Council may have. 10. The following employees or other persons ("key persons") will, at a minimum, be involved in performing the services hereunder: Employees — Lynn R. Sherman, Derek W. Saunders, Steve Mobley; Subconsultants — Donald G. Rauschuber, P.E. CADocuments and Settings\11778\Local SettingsUemp\Consultant Services Contract-Lubbock-304001doc Page 12