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HomeMy WebLinkAboutResolution - 2003-R0202 - Interlocal Contract For Wholesale Water Sales - Lubbock Reese Redevelopment Auth - 05_22_2003Resolution No. 2003-RO202 May 22, 2003 Item No. 72 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Wholesale Water Sales Interlocal Contract between the City of Lubbock and Lubbock Reese Redevelopment Authority, and any other 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 Council. Passed by the City Council this ATTEST: APPROVED AS TO CONTENT: Te-ifty Ellerb ook Director of Public Works APPROVED AS TO�ORM: Richard K. Casner Natural Resources Attorney RKC/ke/LRRA-Water Sale Contract.Res April 30, 2003 22nd day of Nav 2003_ Resolution No. 2003-RO202 May 22, 2003 Item No. 72 WHOLESALE WATER SALES INTERLOCAL CONTRACT STATE OF TEXAS § COUNTY OF LUBBOCK § KNOW ALL MEN BY THESE PRESENTS: This Contract is made by and between the CITY OF LUBBOCK (herein called "LUBBOCK"), a municipal corporation located in Lubbock County, acting by and through its Mayor as authorized by specific action of its City Council; and the LUBBOCK REESE REDEVELOPMENT AUTHORITY (herein called "AUTHORITY"), a political subdivision of the State of Texas, acting by and through its Board of Directors. WITNESSETH: WHEREAS, lands located within the AUTHORITY were once operated as an air force base by the Department of the Air Force (the "AIR FORCE"); WHEREAS, LUBBOCK provided water to the AIR FORCE pursuant to Contract Number F41620-78-D0006, dated on or about October 1, 1977 (the "DOD CONTRACT"); WHEREAS, the DOD CONTRACT expressly provided that it was terminable at the option of the AIR FORCE with not less than thirty (30) days notice; WHEREAS, by letter dated July 15, 2002, the AIR FORCE, through the site manager of the Air Force Base Conversion Agency of the AIR FORCE, provided notice of termination of the DOD Contract; WHEREAS, the AUTHORITY is in need of a new wholesale water service; WHEREAS, LUBBOCK is amenable to providing said wholesale water, upon the terms and conditions of this Agreement, to the AUTHORITY; and WHEREAS, Chapter 791 of the Government Code authorizes LUBBOCK and AUTHORITY to enter into this Contract. NOW THEREFORE, for and in consideration of the mutual agreements, covenants, obligations, and benefits herein expressed, LUBBOCK and AUTHORITY contract and agree as follows: ARTICLE I PROVISION OF WATER 1.1. TERMS, PROVISIONS AND CONSIDERATIONS LUBBOCK agrees to sell and convey wholesale water to the AUTHORITY under and pursuant to the terms, provisions and conditions of this Agreement. ARTICLE II CONDITIONS OF SALE OF WHOLESALE WATER 2.1. QUALITY AND TREATMENT LUBBOCK shall provide potable water of similar quality supplied to citizens and residents of Lubbock, Texas treated by disinfectants and such other treatment as may in the future be directed by appropriate regulatory agencies and meeting the applicable quality standards of the Texas Commission on Environmental Quality and other local, State and Federal governmental agencies at the Point of Delivery, as hereinafter defined, during the term of this Contract or of any renewal or extension thereof. LUBBOCK may furnish such supply out of surface water, ground water, treated wastewater or combination of same, at its discretion. 2.2. QUANTITY LUBBOCK shall be obligated to deliver a maximum of 670,000 gallons during any 24- hour period of time or 240,000,000 gallons during any 365-day period of time to AUTHORITY'S Point of Delivery. All water quantities delivered shall be measured at the Point of Delivery. The meters shall be located in an area reasonably accessible by LUBBOCK at all WHOLESALE WATER SALES CONTRACT LUBBOCK REESE REDEVELOPMENT AUTHORITY---- PAGE 2 times. LUBBOCK shall install metering stations at the Point of Delivery and at its option may include equipment in such metering station devices to: (1) control the rate of flow; (2) measure the instantaneous flow of gallons per day; (3) measure peak hourly flow during the day of maximum flow in gallons per day; (4) measure the cumulative volume of water taken; and (5) control changes in the rate of flow, said devices being operable by LUBBOCK at the respective meters and remotely from within LUBBOCK. Deliveries shall be contingent upon facilities necessary or convenient for LUBBOCK to deliver water to AUTHORITY from LUBBOCK'S existing water conveyance system to the Point of Delivery. AUTHORITY, unless expressly provided otherwise herein, shall be required to pay all costs of materials and labor necessary to effectuate this Contract, including necessary piping, meters and appurtenances, and installation. 2.3. POINT OF DELIVERY AND TITLE WATER provided to AUTHORITY shall be delivered to the (i) Reese Point of Delivery described in Exhibit "A" (the "Reese Point of Delivery"); and (ii) the Village Point of Delivery described on Exhibit "A" (the "Village Point of Delivery") (the Reese Point of Delivery and the Village Point of Delivery are collectively referred to as the "Point of Delivery"). LUBBOCK shall not be required to furnish more than 450,000 gallons per day at the Reese Point of Delivery and 220,000 gallons per day at the Village Point of Delivery. Title to water passing through the Point of Delivery shall pass to the Authority at the outlet side of the meter. AUTHORITY agrees to save and hold LUBBOCK harmless from all claims, demands, causes of action, which may be asserted by anyone related to the transportation and delivery of said water while title remains in AUTHORITY. 2.4. METERING EQUIPMENT LUBBOCK shall provide the installation and maintenance of the necessary metering equipment, and required devices of standard type for properly measuring the quantity of water delivered to AUTHORITY. Calibration of such metering equipment shall be done on a rea- WHOLESALE WATER SALES CONTRACT LUBBOCK REESE REDEVELOPMENT AUTHORITY---- PAGE 3 sonable time schedule, but not less frequently than once every twelve (12) months, or more frequently than once every three (3) months. A meter registering not more than three percent (3%) accuracy above or below the test result shall be deemed to be accurate. The previous readings of any meter disclosed by test to be inaccurate beyond the acceptable range of plus or minus three percent (3%) shall be corrected in accordance with the percentage of inaccuracy found by such tests for a period extending back one-half (1/2) of the time elapsed since the last calibration date but, in no event, further back than a period of six (6) months. If either meter is out of service or out of repair so that the amount of water delivered cannot be ascertained or computed from the reading thereof, the water delivered during the period such meter is out of service or out of repair shall be estimated upon the basis of the best data available. The metering equipment register shall be read by LUBBOCK at least once a month. Metering equipment, valves, and other appurtenances associated with the metering installation shall be the property of LUBBOCK. 2.5. BILLING PROCEDURE A monthly statement of the amount of water determined to be delivered to AUTHORITY through the meters at the Point of Delivery during the preceding month shall be mailed to AUTHORITY, Attention: Ejjec +ree+tiN All statements for water delivered shall be due and payable from current revenues available to AUTHORITY twenty-one (21) daysafter the issuance of said statement. A late payment charge of five percent (5%) shall be charged to AUTHORITY if AUTHORITY fails to pay the statement on or before twenty-one (21) days from date of the statement. If payment is not received by LUBBOCK within thirty-five (35) days after the date of issuance of the statement, the statement shall be deemed delinquent. LUBBOCK shall notify AUTHORITY in writing when any such payment shall become delinquent, and if such delinquency is not removed within forty-two (42) days after the date of issuance of the statement, LUBBOCK may, at its discretion, cease deliveries of water to AUTHORITY under WHOLESALE WATER SALES CONTRACT LUBBOCK REESE REDEVELOPMENT AUTHORITY---- PAGE 4 the terms of this Contract. After water has ceased to be provided, LUBBOCK may, at its discretion, notify AUTHORITY of its intention to declare this Contract forfeited and null and void. Upon such notice, AUTHORITY shall have thirty (30) days to pay all delinquent charges, late fees, and reconnect charges, in order to reinstate wholesale water services prior to final action by LUBBOCK declaring this Contract forfeited and null and void. Upon LUBBOCK declaring this Contract forfeited and null and void, LUBBOCK shall sever and/or remove all connections to LUBBOCK'S water system for delivery of water under this Contract. 2.6. AREA OF SERVICE AUTHORITY may provide retail water service to customers only in the following areas: (a) The areas of land described as Tract 1 through Tract 50 in Section 396.009 of the Texas Local Government Code; (b) The two (2) existing residential structures and the single restaurant facility as depicted in Exhibit "A", attached hereto. For the purposes hereof, the "single restaurant facility" shall include the kitchen, service areas, and dining spaces located in the area depicted in Exhibit "A", known as "Cagle Steakhouse". No other locations or customers on the lands presently owned and operated by John Cagle or the John Cagle family, may be served. (c) No other geographic area or premises, of any kind or nature, shall be served by water purchased hereunder. WHOLESALE WATER SALES CONTRACT LUBBOCK REESE REDEVELOPMENT AUTHORITY---- PAGE 5 ARTICLE III CONDITIONS OF RECEIVING SERVICE 3.1. AUTHORITY'S FACILITIES AUTHORITY agrees and understands that it will install and maintain, at its sole expense, all facilities necessary for AUTHORITY to operate its water system from the Point of Delivery as described in this Contract and that LUBBOCK shall be under no obligation whatsoever to bear any of said expenses aforementioned. After installation of the meter facilities by LUBBOCK, AUTHORITY shall not alter, modify, or change the meter facilities under any circumstances. 3.2. RATES AND PAYMENT DATE AUTHORITY shall pay to LUBBOCK, no later than the due date specified in the statement for water conveyed pursuant to the terms of this Contract, those charges for water provided as set forth within this Contract. The base monthly rate for the meters installed at the Point of Delivery shall be equal to the rate established by the City Council of the City of Lubbock for meters of equal size as set forth in Section 28-52 of Code of Ordinances of the City of Lubbock, as may be amended from time to time. The flow rate charged for water provided shall be equal to the rate established by the City Council of the City of Lubbock charged to Commercial customers as set forth in Section 28-53 of the Code of Ordinances of the City of Lubbock, as may be amended from time to time. The rates charged do not imply or include service by LUBBOCK beyond the Point of Delivery; it being the intent of this Contract that all expenses on AUTHORITY'S side of the Point of Delivery as defined in this Contract shall be the sole expense of AUTHORITY. In the event any sales or use taxes, or taxes, or user fee of any similar nature are imposed on the delivery, taking, sale, use, or consumption of the water received by AUTHORITY from LUBBOCK, the amount of the user fee allocable to AUTHORITY shall be borne by AUTHORITY. When and if LUBBOCK shall be required to pay, collect or remit any tax or user WHOLESALE WATER SALES CONTRACT LUBBOCK REESE REDEVELOPMENT AUTHORITY---- PAGE 6 fee on water received by AUTHORITY, then the tax or user fee is not included in the rates under this Contract will be added to the charges otherwise payable to LUBBOCK and AUTHORITY shall promptly pay LUBBOCK for such tax or user fee in the manner directed by LUBBOCK. 3.3. SANITARY CONTROL AUTHORITY shall maintain at all times (i) an air gap between LUBBOCK'S pressurized system at Reese Point of Delivery; and (ii) a double check reduced pressure type backflow preventor between Lubbock's pressurized system at the Village Point of Delivery and AUTHORITY'S water distribution system. AUTHORITY shall not allow service by direct pressure from the LUBBOCK'S supply line to the Reese Point of Delivery. AUTHORITY shall permit personnel of LUBBOCK to enter upon the property of AUTHORITY for the purpose of inspecting any and all facilities to determine whether AUTHORITY is maintaining the required air gaps. Should LUBBOCK have reasonable grounds to believe that any condition exists which might result in contamination of LUBBOCK'S water supply or jeopardize LUBBOCK'S certification with the Texas Commission on Environmental Quality and/or other federal, state or local regulatory authorities, then LUBBOCK shall notify AUTHORITY and AUTHORITY shall immediately correct such condition. In the event AUTHORITY fails to correct such condition then LUBBOCK may, at its sole discretion, which shall not be unreasonably exercised, either correct the condition, at AUTHORITY'S expense, and include the cost of materials and labor in subsequent billing statements from LUBBOCK to AUTHORITY or cease delivering water under this Contract until such condition is corrected to the satisfaction of the LUBBOCK. In the event LUBBOCK determines that contamination of LUBBOCK'S water supply by AUTHORITY exists, LUBBOCK shall have the absolute right to discontinue service to AUTHORITY until such time as said contamination has been eliminated by AUTHORITY. Nothing herein shall be construed to impose upon LUBBOCK the duty and obligation to make any inspection or to regulate the quality of water beyond the Point of Delivery to AUTHORITY and AUTHORITY WHOLESALE WATER SALES CONTRACT LUBBOCK REESE REDEVELOPMENT AUTHORITY---- PAGE 7 shall be solely responsible for the operation, maintenance, regulation and employment of all facilities beyond the Point of Delivery, and the regulation of the use of all water received by it at the Point of Delivery. 3.4. WATER CONSERVATION In the event LUBBOCK is required to implement its Water Conservation and/or Drought Contingency Plan for its system then in such event AUTHORITY shall receive the same water allotment under such plan as any other customers of similar size and water needs served by LUBBOCK. AUTHORITY shall cooperate with and assist LUBBOCK in developing, implementing and maintaining water conservation plans, programs, and rules incorporating loss - reduction measures and management practices, techniques, and technologies designed to insure that water made available under this Contract is used in an economically -sensitive manner and designed to reduce the consumption of water, reduce the loss or waste of water, improve the efficiency in the use of water, and increase the recycling and reuse of water. AUTHORITY agrees that if water supplies or services are curtailed within LUBBOCK, LUBBOCK may impose a like curtailment on deliveries to AUTHORITY and AUTHORITY will cooperate by adopting a water conservation plan and drought contingency plan imposing conservation measures upon its sales. LUBBOCK'S obligations under this Contract shall be subject to water conservation plans and drought contingency plans adopted by LUBBOCK or required or approved by the Texas Commission on Environmental Quality, or any other or additional federal, state, or local regulatory authority with power to require or approve water conservation and drought contingency plans. WHOLESALE WATER SALES CONTRACT LUBBOCK REESE REDEVELOPMENT AUTHORITY---- PAGE 8 ARTICLE IV MUTUAL CONDITIONS 4.1. FAILURE TO DELIVER LUBBOCK does not warrant that the services provided for in this Contract will be free from, and LUBBOCK is excused from performing hereunder in the event and for the period of, an interruption or stoppage caused by maintenance, repair, substitution, renewal, replacement or improvement of any of the equipment involved in the furnishing of any such services or caused by the changes of services, alterations, strikes, lockouts, labor controversies, accidents, or acts of God, the elements, or any other event of force majeure or cause beyond the reasonable control of LUBBOCK. In the event of a shortage of water, or if distribution of water by LUBBOCK to AUTHORITY is deemed inappropriate by any regulatory agency or law, the supply of water to AUTHORITY under this Contract shall be reduced or ceased as deemed necessary by LUBBOCK to protect its own interests and comply with all rules and regulations of any regulatory agency having jurisdiction over the operation of LUBBOCK'S facilities. 4.2. REGULATORY AGENCIES This Contract is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders, and regulations of any local, state or federal governmental authority, except AUTHORITY, having or asserting jurisdiction. However, nothing contained in this Contract shall be construed as a waiver by any party to the Contract of any right to question or contest any law, order, rule or regulation which may affect the terms and conditions of this Contract in any forum having jurisdiction, and AUTHORITY and LUBBOCK each agree to make a good faith effort to support proposed laws and regulations which would be consistent with the performance of this Contract in accordance with its terms. AUTHORITY represents and warrants to LUBBOCK that it has obtained all necessary permits and consents necessary to WHOLESALE WATER SALES CONTRACT LUBBOCK REESE REDEVELOPMENT AUTHORITY---- PAGE 9 provide retail water service to customers within the boundaries of service as set forth in Section 2.6, above. 4.3. MISCELLANEOUS CONDITIONS All the situations, promises, undertakings and Contracts herein contained by or on behalf of either LUBBOCK or AUTHORITY shall bind the successors and permitted assigns of either party, whether so expressed or not; but neither LUBBOCK nor AUTHORITY shall have the right to assign this Contract, or any part thereof, without the written consent of the other party. Either party may waive any default on the part of the opposite party affecting any other provision of the Contract but only upon in express writing, approved by the governing body of the waiving party. 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. LUBBOCK and LUBBOCK'S agents have made no representations or promises with respect to the water services except as herein expressly set forth, and no rights, easements, entitlements, or licenses are acquired by AUTHORITY by implication or otherwise except as expressly set forth in this Contract. 4.4. NOTICE OF VIOLATION In the event that either LUBBOCK or AUTHORITY should breach, fail to comply with or violate any term or terms of this Contract (a "Default") the other party shall promptly notify, with specificity as to the alleged Default, the other respective party of the Default. Except as otherwise provided by this Contract, upon receiving such notice the defaulting party shall have forty-five (45) days to cure the Default. Unless this Contract provides otherwise, in the event said Default is not cured within the time period described below, the party sending the notice may at its discretion notify the other party of its election to declare this Contract forfeited and null and void. If the Default cannot be cured within the forty-five (45) day period, the length of the period shall be extended for a' reasonable period of time, if the defaulting party commences WHOLESALE WATER SALES CONTRACT LUBBOCK REESE REDEVELOPMENT AUTHORITY---- PAGE 10 curing the Default within the forty-five (45) day period and continues the activities to cure the Default with due diligence and continuity. 4.5. TERM OF CONTRACT The term of this Contract shall be a period of ten (10) years from its effective date. AUTHORITY is given an option to extend this Contract upon identical terms and conditions hereof for a period of five (5). years provided that at least twelve (12) months prior to the expiration of the initial term of this Contract, AUTHORITY notifies LUBBOCK, in writing, as set forth herein, of its desire to exercise the option and extend this Contract. 4.6. WAIVER No failure on the part of LUBBOCK at any time to require the performance by AUTHORITY of any portion of this Contract shall in any way affect LUBBOCK'S right to enforce such provision or any other provision. Nor shall any waiver by LUBBOCK of any provi- sion hereof be taken or held to be a waiver of any other provision hereof or any other breach hereof. No rights under this Contract may be waived and no modification or amendment to this Contract may be made except by written amendment executed and authorized by the governing bodies of the parties. No officer or agent of AUTHORITY or LUBBOCK is authorized to waive or modify any provision of the Contract. No modifications to or rescission of this Contract may be made except by a written document signed by LUBBOCK'S and AUTHORITY'S authorized representatives. 4.7. 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. WHOLESALE WATER SALES CONTRACT LUBBOCK REESE REDEVELOPMENT AUTHORITY---- PAGE 11 4.8. APPLICABLE LAW AND VENUE This Contract shall be construed under the laws of the State of Texas and all obligations of the parties hereunder are performable in Lubbock County, Texas. Venue related to any matter brought hereunder shall lie solely in Lubbock County, Texas. 4.9. EFFECTIVE DATE This Contract shall be effective and binding between the parties hereto on date of execu- tion by LUBBOCK. 4.10. NOTICE All notices, payments and communications required or allowed by this Contract shall be in writing and be given by depositing the notice in the United States mail, postpaid and registered or certified, with return receipt requested, and addressed to the parry to be notified. Notice, as herein provided, shall be conclusively deemed to be effective from and after the expiration of three (3) days after the notice is deposited in the mail. For the purposes of the notice, the addresses for receipt of notice to the parties is set forth immediately below. LUBBOCK REESE REDEVELOPMENT AUTHOR Y gsoI k4e��1�� ;�� Zao GAbbo ATTN: JE'-X tcxij ye, Villedzue With copies to: CITY OF LUBBOCK P. O. Box 2000 Lubbock, Texas 79457 ATTN: Terry Ellerbrook, Director of Public Works, or Successor 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 parry at least fifteen (15) days before the change becomes effective. WHOLESALE WATER SALES CONTRACT LUBBOCK REESE REDEVELOPMENT AUTHORITY---- PAGE 12 4.11. CURRENT REVENUES Each parry paying for performance under this Contract shall make all payments from current revenues available to the paying parry. EXECUTED as of the 22nd day of May , 2003. LUBBOCK REESE REDEVELOPMENT AUTHORITY BY: ATTEST: KC:ke/Richard/LRRA-Water Sales Contract — Fina132403 April 30, 2003 ATTEST: R ecca Garza, City Secretary APPROVED AS TO CONTENT: J Te , Ellerbrook, Director of Public Works APPROVED AS TO ORM: Richard K. Casner Natural Resources Attorney WHOLESALE WATER SALES CONTRACT LUBBOCK REESE REDEVELOPMENT AUTHORITY---- PAGE 13 AiA sm 14w wOrn- -nm L V fN 4z It 4f, 1p kni Ile. All `�B