Loading...
HomeMy WebLinkAboutResolution - 2012-R0238 - Agreement - Fred Jones And Bayer Cropscience LP - Treated Wastewater Effluent - 06_07_2012Resolution No. 2012-RO238 June 7, 2012 Item No. 5.5 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock an Agreement for furnishing of treated wastewater effluent, by and between the City of Lubbock and Fred Jones and Bayer CropScience, L.P., and related documents. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this June 7 , 2012. GLE �MAYOR ATTEST: Rebe ca Garza, City Secretary APPROVED AS TO CONTENT: Ar Marsha Reed, P.E., Chief Operating Officer APPROVED AS TO FORM: s, Assig6A-Eif-Attorney res-wastewater. Fred Jones. 5.15.12 Resolution No. 2012—RO238 CITY OF LUBBOCK RECLAIMED WATER SUPPLY CONTRACT STATE OF TEXAS § COUNTY OF LUBBOCK § WHEREAS, Fred Jones (the "User") certifies, represents and warrants that he is the owner, or has authorization to enter into this agreement (the "Contract") on behalf of the owner, of the lands described as follows (the "Property"): Property A: Southwest 90 acres of Block A, Section 76, Tr 6-A-2 Property B: 290 acres, more or less, being a part of 317.924 acres, more or less, as described in that certain Deed dated February 25, 1980, from Joseph Franklin Gray, et al to Stoneville Pedigreed Seed Company, recorded in Volume 1680, Page 99, Deed Records, Lubbock County, Texas. WHEREAS, the City of Lubbock (the "City") operates and manages the Southeast Water Reclamation Plant, and the Texas Commission on Environmental Quality (herein called "TCEQ") has the authority to regulate and enforce activities under this Contract regarding the use of Reclaimed Water (herein so called); and, WHEREAS, the City Council finds that it is a public benefit to the City at this time for the User to receive the Reclaimed Water pursuant to this contract as it is currently excess to the City; and WHEREAS, User desires to receive from the City, and the City desires to provide to User, to the extent available, Reclaimed Water for the purpose(s), and only the purposes, stated in Section 1.01 of this Contract. NOW THEREFORE, USER AND CITY CONTRACT AND AGREE AS FOLLOWS: ARTICLE I USE OF RECLAIMED WATER Reclaimed Water Supply Contract Fred Jones Page l of9 1.01 Subject to the terms and conditions hereof, the City shall provide, and User shall receive, Reclaimed Water for, limited to use upon the Property for the purpose of (check all that apply): X Agricultural irrigation of crops not for human consumption Irrigation of crops that will be peeled, skinned, cooked, or thermally processed before human consumption is allowed Agricultural irrigation of pastures for grazing of non -milking animals Industrial cooling water 1.02 To the extent Reclaimed Water is available; the City shall provide Reclaimed Water to the User on a demand basis only. User expressly agrees and understands that the use of Reclaimed Water contemplated hereby is made on "as available" basis from the City. Further, the City may be required from time to time to cease deliveries of Reclaimed Water to User in the event State dictated quality standards are not met. Nothing in this Contract shall ever be construed to obligate the City to provide Reclaimed Water to the User. 1.03 The term of this Contract shall be five and one half years (5 1/2) years, commencing on June 7, 2012 and expiring on December 7, 2015. ARTICLE II DUTIES OF USER 2.01 Prior to being provided Reclaimed Water, as contemplated herein, User shall submit to the City, certified by a licensed Texas engineer, its' (a) transfer, storage, and irrigation design plan; (b) operation, water balance (or substitute that of the City) and maintenance plan; and (c) contingency spill plan. The plans submitted by User shall be in full and complete compliance will all applicable federal and state statutes, rules, regulations, and local ordinances, including, but not limited to, Title 30, Chapter 210, of the Texas Administrative Code. The plans submitted shall include, at a minimum, i) labeling and separation plan for prevention of cross contamination; (ii) measures to be utilized to Reclaimed Water Supply Contract Fred Jones Page 2 o N prevent unauthorized access to Reclaimed Water facilities; (iii) procedures for monitoring Reclaimed Water transfer and use; (iv) steps the User will initiate to minimize risk of inadvertent human exposure; (v) schedules for routine maintenance; (vi) procedures for employee training and safety precautions relating to Reclaimed Water treatment, distribution and management; and (vii) contingency plan for remedy of system failures, unauthorized discharges, or upsets. The City shall have the authority to review the submitted plans, and may reject said plans, in their sole discretion, if found to be in noncompliance with any applicable federal or state statute, rule, regulation or local ordinance, the terms of this Contract, or for any reason deemed material in the sole discretion of the City. Notwithstanding the right of the City to inspect the plans submitted by the User, the City shall in no event be responsible for the User's failure to comply with all applicable federal and state statutes, rules, regulations, and/or local ordinances, and all terms and provisions of this Contract. 2.02 The User shall transport, distribute, irrigate and/or otherwise utilize the Reclaimed Water supplied by the City as contemplated by this Contract, in accordance with all applicable federal and state statutes, rules and regulations and all local ordinances, as same may be amended, including but not limited to, Title 30, Chapter 210 of the Texas Administration Code. In the event that User shall fail to comply with same, the City may immediately terminate non -compliant Reclaimed Water use. 2.03 The User shall not transport, distribute, irrigate and/or otherwise utilize Reclaimed Water for any purpose other than the purpose(s) stated in Section 1.01 of this Contract. The sale of Reclaimed Water received from the City to a third party is strictly prohibited and void. 2.04 The User shall be responsible for any and all costs associated with the delivery of Reclaimed Water to the Property, including, but not limited to (i) meter installation; (ii) taps, and/or extending distribution lines from the City's trunkline to the Property; (iii) plan, facility and irrigation design review; and (iv) repairs performed by the City to the Reclaimed Water Supply Contract Fred Jones Page 3 o f9 User's distribution facilities. Notwithstanding anything to the contrary herein, the City shall in no event repair, or be responsible for making any repairs, to the User's above- ground irrigation system(s). 2.05 The User shall insure that (i) Reclaimed Water overflow, crop stress and undesirable soil contamination by a salt does not occur; (ii) the irrigation site must be maintained with a vegetative cover or be under cultivation during all times when Reclaimed Water is being applied; (iii) there shall be no application of Reclaimed Water when the ground is frozen or saturated; (iv) there shall be no spray and/or any other application of any kind or type upon areas outside the designated irrigation area; (v) irrigation operations shall be managed in a manner to minimize the inadvertent contact of Reclaimed Water with humans; and (vi) irrigation practices shall not produce incidental ponding or standing water, except in cases wherein local farming conditions, the accepted irrigation delivery systems and cropping patterns are such that, as an unavoidable consequence of such conditions, systems and patterns, there will be standing water. 2.06 The User has made an independent evaluation of the Reclaimed Water, and the uses thereof, as contemplated by this Contract, and acknowledges that the City has made no statements or representations concerning the availability of Reclaimed Water, quality of the Reclaimed Water, or present or future value of any anticipated income or profits to be derived from the Reclaimed Water and/or the uses thereof and THAT THE CITY, ITS AGENTS, OFFICERS, EMPLOYEES, OR REPRESENTATIVES MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, AS TO THE DESCRIPTION, VALUE, QUALITY, QUANTITY, OR AVAILABILITY OF RECLAIMED WATER, MERCHANTABLILITY, OR FITNESS FOR PURPOSE OF THE RECLAIMED WATER. USER FURTHER ACKNOWLEDGES THAT, IN ENTERING INTO THIS CONTRACT, USER HAS RELIED SOLELY UPON ITS INDEPENDENT EXAMINATION OF THE RECLAIMED WATER AND THE USES THEREOF, AS CONTEMPLATED BY THIS CONTRACT, AND ITS Reclaimed Water Supply Contract Fred Jones Page 4 of4 INDEPENDENT ESTIMATES, COMPUTATIONS, EVALUATIONS, REPORTS AND STUDIES BASED THEREON. 2.07 THE USER RELEASES FOR THEMSELVES, PERSONAL REPRESENTATIVES, HEIRS, DEVISEES, SUCCESSORS AND ASSIGNEES, THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES AND/OR REPRESENTATIVES, FROM ANY AND ALL LOSSES, LAWSUITS, EXPENSES, COSTS, PENALTIES, FINES, CLAIMS, DAMAGES, LIABILITIES AND CAUSES OF ACTION OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS' FEES OR EXPENSES INCURRED IN CONNECTION WITH, RELATED TO, INCIDENT TO, OR ARISING OUT OF, IN ANYWAY, MANNER OR FORM, DIRECTLY OR INDIRECTLY, FROM THE ACTIVITIES CONTEMPLATED BY THIS CONTRACT (COLLECTIVELY, THE "CLAIMS"), INCLUDING, BUT NOT LIMITED TO, CLAIMS OF ANY KIND OR NATURE, ARISING OR ALLEGEDLY ARISING, OUT OF ANY NEGLIGENT ACT OR OMISSION OF THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES OR REPRESENTATIVES. 2.08 THE USER SHALL INDEMNIFY, REIMBURSE AND HOLD THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES AND/OR REPRESENTATIVES, HARMLESS FROM AND AGAINST ANY AND ALL LOSSES, LAWSUITS, EXPENSES, COSTS, PENALTIES, FINES, CLAIMS, DAMAGES, LIABILITIES AND CAUSES OF ACTION OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS' FEES OR EXPENSES INCURRED IN CONNECTION WITH, RELATED TO, INCIDENT TO, OR ARISING OUT OF, IN ANY WAY, MANNER OR FORM, DIRECTLY OR INDIRECTLY, FROM THE ACTIVITIES CONTEMPLATED BY THIS CONTRACT (COLLECTIVELY, THE "CLAIMS"), INCLUDING, BUT NOT LIMITED TO CLAIMS OF ANY KIND OR NATURE, ARISING OR ALLEGEDLY ARISING, OUT OF ANY NEGLIGENT ACT OR OMISSION OF THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES OR REPRESENTATIVES. Reclaimed Water Supply Contract Fred Jones Page 5 o f9 2.09 The User shall not allow the creation and/or continuation of any nuisance condition resulting from the distribution, use, and/or the storage of Reclaimed Water, and the User is responsible for abating, in its entirety, any such nuisance or condition. 2.10 The User shall not utilize the Reclaimed Water in any way that degrades, or has the potential of degrading, ground water quality to a degree adversely affecting its actual or potential uses. 2.11 Reclaimed Water managed in ponds for storage must be prevented from discharge into waters of the state, except for discharges directly resulting from rainfall events. All other discharges are unauthorized. If an unauthorized overflow occurs causing discharge into or adjacent to waters of the state, the User shall report the non-compliance, in writing, to the City, the TCEQ regional office and the TCEQ Austin office, Water Enforcement Section (MC 149), within five (5) working days of becoming aware of the overflow. A written submission shall contain a description of (i) the non-compliance and its cause; (ii) the potential danger to human health or safety, or the environment; (iii) the period of non- compliance, including exact dates and times; (iv) if the non- compliance has not been corrected, the anticipated time it is expected to continue; and, (v) steps taken or planned to reduce, eliminate, and prevent recurrence of the non- compliance, and to mitigate its adverse affects. ARTICLE III MISCELLANEOUS 3.01 This Contract shall be governed by and interpreted according to the laws of the State of Texas, without regard to conflict of law rules that would direct application of the laws of another jurisdiction. Venue for any and all actions concerning this Contract, and/or the activities contemplated thereby, shall exclusively lie in Lubbock County, Texas. 3.02 This Contract, including all exhibits attached hereby or made a part of hereof, if any, constitute the entire agreement between the City and the User, and supersedes all prior Reclaimed Water Supply Contract Fred Jones Page 6 o N agreements, understandings and negotiations and discussions whether oral or written, of the parties. No supplement, amendment, alteration, modification, waiver or termination with this Contract shall be binding unless executed in writing by the parties hereto. 3.03 No waiver of any provision of this Contract shall be deemed to cause a waiver of any other provisions hereof, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. 3.04 If any term or other provision of this Contract is invalid, illegal or incapable of being enforced under any rule of law, all other conditions and provisions of this Contract shall nevertheless remain in full force so long as the economic or legal substance of the transactions contemplated hereby are not affected in a material adverse manner with respect to either party. 3.05 This Contract is not intended to create, nor shall it be construed to create, any rights of any third party under doctrines concerning third party beneficiaries. 3.06 Neither party hereto shall assign this Contract, or any other rights or obligations hereunder, without the prior written consent of the other party, and any assignment made without such consent shall be void. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assignees. 3.07 In the event User shall not comply with any provision hereof, the City may immediately terminate this Contract and exercise any and all rights and remedies available to it by law, equity contract or otherwise. In any event, this Contract may be terminated by the User or City upon ninety (90) days written notice to the non -terminating party. For the purposes hereof, notice shall be deemed delivered when deposited in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed, if to the City; Attention: Marsha Reed, P.O. Box Reclaimed Water Supply Contract Fred Jones Page 7 of9 2000, Lubbock, Texas 79457 and if to User, Fred Jones, 301 Erskine Lubbock, Texas 79403. 3.05 The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, the former shall control. ARTICLE IV SPECIAL PROVISIONS 4.01 By their execution below, Bayer CropScience LP, owner of the Property, B and Fred Jones owner of the Property A, herein acknowledges that they have read this Contract, understands all of the terms hereof and expressly consent to the use of Reclaimed Water, as set forth herein, on the Property. Executed this 7th day of June Approved as to Content: ffi(U . A L -(�' — 10 Q rsha Ree , Chief Operations O zcer ATTEST: Rebe ca Garza, City Secre a 2012. User/Owner: Fred Jones Owner: Lee venbark, BayerCropScience LP Reclaimed Water Supply Contract Fred Jones Page 8 o N Approved as to Form: Amy, Oflisovomey Reclaimed Water Supply Contract Fred Jones Page 9 o f9