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HomeMy WebLinkAboutResolution - 2022-R0533 - Interlocal Wholesale Water Sales Contract with City of WolfforthResolution No. 2022-RO533 Item No. 5.33 December 13, 2022 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 Interlocal Wholesale Water Sales Contract by and between the City of Lubbock and the City of Wolfforth for the provision of wholesale water. 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 City Council. Passed by the City Council on the 13th day of December , 2022. ATTEST: Rebec a Garza, City Secre APPROVED AS TO CONTENT: W. Ja ett Atkinson, City Manager APPROVED AS TO FORM: Am , Deputy City,Attomey Interlocal Agreement-Wolfforth-Wholesale Water Sales Contract Resolution No. 2022-RO533 INTERLOCAL WHOLESALE WATER SALES CONTRACT STATE OF TEXAS § COUNTY OF LUBBOCK § This Contract is made by and between the CITY OF LUBBOCK, a home rule municipal corporation located in Lubbock County, acting by and through its Mayor as authorized by specific action of its City Council; and the CITY OF WOLFFORTH (herein called "Consumer/User"), a Texas Municipality, acting by and through its Mayor and City Council. WITNESSETH WHEREAS, the Consumer/User is an independent and locally governed municipality located adjacent to the City of Lubbock; WHEREAS, there is considerable commercial, retail, construction, and education activity between both these communities due the close proximity; WHEREAS, due to the depletion of groundwater reserves and water quality in the immediate area of the Consumer/User there is a continuing need for the City of Lubbock to supply certain volumes of water; WHEREAS, Section 22.03.091 of the Code of Ordinances of the City of Lubbock permits the sale of wholesale water outside of its municipal boundaries to federal, state, or local governments pursuant to appropriate intergovernmental contracts; WHEREAS, the City of Lubbock is amenable to providing said wholesale water, subject to the conditions precedent and upon the terms and conditions of this Contract, to the Consumer/User; and WHEREAS, Consumer/User acknowledges the financial and infrastructural commitments the City of Lubbock must expend in order to provide wholesale water to Consumer/User in the quantities provided for in the Agreement; and WHEREAS, Consumer/User acknowledges that the City of Lubbock must allocate and reserve the capacity of a large quantity of water in order to meet the requirements of this Contract and that the failure of Consumer/User to accept the water quantities as set forth in this Contract would create a hardship for the City of Lubbock; and WHEREAS, the Government Code authorizes certain intergovernmental cooperation contracts. NOW THEREFORE, for and in consideration of the mutual contracts, covenants, obligations, and benefits herein expressed, the City of Lubbock and Consumer/User contract and agree as follows: ARTICLE I PROVISIONS OF WATER 1.1 TERMS, PROVISIONS, AND CONSIDERATIONS The CITY OF LUBBOCK agrees to sell and convey wholesale water to the CITY OF WOLFFORTH ("Consumer/User") outside the City of Lubbock, subject to the conditions precedent and under and pursuant to the terms, provisions, and conditions of this Contract. ARTICLE II CONDITIONS OF SALE OF WHOLESALE WATER 2.1 QUALITY AND TREATMENT The City of Lubbock shall supply potable water of similar quality that the City of Lubbock distributes to the residents of Lubbock, Texas treated by disinfectants and other such treatment as may in the future be directed by appropriate regulatory agencies and meeting the applicable primary drinking water standards of the Texas Commission on Environmental Quality and other local, State, and Federal government agencies at the Points of Delivery, as hereinafter defined, during the term of this Contract or any renewal or extension thereof. The City of Lubbock may at its sole discretion, furnish this supply out of surface water, groundwater, potable reclaimed water, or any combination of same. THE CITY OF LUBBOCK MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING WITHOUT LIMITATION, AS TO THE DESCRIPTION, VALUE, QUALITY, PHYSICAL CONDITION, MERCHANTIBILITY, OR FITNESS FOR PURPOSE OF THE WATER SUBJECT TO THIS CONTRACT EXCEPT AS EXPRESSLY SET FORTH ABOVE. 2.2 QUANTITY The City of Lubbock shall supply a set quantity, as set forth below, to the Consumer/User at the Points of Delivery, one located to the North (the "North Point of Delivery") and one located to the South (the "South Point of Delivery"), as shown in Exhibit A, attached hereto (collectively called the "Points of Delivery") at such times the Points of Delivery are constructed and in accordance with the dates set forth below. All water quantities delivered shall be measured at the Points of Delivery. In the event Consumer/User shall use more than the allotted maximum amount of wholesale water in a 12-month period beginning on June 1 of each year of during the term of this Contract and ending on May 31 of each year during the term of this Contract, Consumer/User shall pay an amount equal to two (2x) times the wholesale rate for that amount of wholesale water that exceeds the allotted maximum quantity. The wholesale rate is set forth in Section 22.03.085 of the Code of Ordinances of the City of Lubbock. For the period from June 1, 2023 through May 31, 2026, City of Lubbock shall make available a maximum of 182,500,000 gallons in any twelve (12) month period. From June 1, 2026 to the end of the contract, Lubbock shall make available a maximum amount of 273,750,000 gallons in any twelve (12) month period as follows below: Beginning June 1, 2023 — City of Lubbock shall make available not more than 500,000 gallons per day at the South Point of Delivery at a maximum flow of 700 gallons per minute (gPm)• Beginning no later than June 1, 2026 or at such earlier time as CONSUMER/USER has completed the infrastructure necessary at the North Point of Delivery, City of Lubbock shall make available not more than 750,000 gallons per day in total. If the North Point of Delivery is not completed by June 1, 2026, CONSUMER/USER may take not more than 750,000 gallons per day from the South Point of Delivery until May 31, 2027. If after May 31, 2027 CONSUMER/USER fails to complete the infrastructure necessary at the North Point of Delivery, then CONSUMER/USER may take not more than 500,000 gallons per day from the South Point of Delivery until such time the infrastructure necessary at the North Point of Delivery is complete and available to accept water. At such time CONSUMER/USER has completed the infrastructure necessary at the North Point of Delivery, CONSUMER/USER is limited to not more than 750,000 gallons per day in total and is limited to not more than 500,000 per day from either of the two approved Points of Delivery. Each Point of Delivery shall be equipped with a metering device pursuant to section 2.4 of this Contract and shall be billed separately. All water quantities delivered shall be measured by a metering device as specified by the City of Lubbock at the sole cost to the Consumer/User located in an area reasonably accessible by the City of Lubbock at all times. If the metering device is to include remote monitoring equipment, the Consumer/User shall bear the sole cost of this additional equipment. Installation of this metering device shall be the responsibility of the City of Lubbock with all cost and expense of such installation reimbursed by the Consumer/User. Such metering device may include and manage: (1) control of 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 twenty-four hour period; (4) measure the cumulative volume of water taken; and (5) control changes in the rate of flow. At the City of Lubbock's discretion, the metering device may be remotely monitored and documented as to usage of Consumer/User. Deliveries shall be contingent upon facilities necessary or convenient for the City of Lubbock to deliver water to the Consumer/User from existing water conveyance system to the Point of Delivery. City of Lubbock and Consumer/User will mutually agree on the size of the meters. 3 2.3 POINT OF DELIVERY AND TITLE Water provided to Consumer/User shall be delivered to the Points of Delivery, as described in Exhibit "A" at such time such Points of Delivery are constructed by CONSUMER/USER. As construction of each Point of Delivery is completed, CITY OF LUBBOCK shall begin delivery of water pursuant to this Agreement at said constructed Point of Delivery. Title to water passing through the metering device shall become the property of the CONSUMERIUSER at the outlet side of the meter. CONSUMER/USER shall be responsible for the water, for all purposes and intents, from and after title passage to the Consumer/User. The CONSUMER/USER shall pay all of the costs of the water system infrastructure necessary or required by the CONSUMER/USER to deliver water from the CITY OF LUBBOCK "current" and "new" delivery points into the CONSUMER/USER's water system as described by this Contract, including without limitation, the costs of all valves, stub outs, meter fees, taps, backflow devices, and any and all other improvements or devices required by the CITY OF LUBBOCK or desired by the CONSUMER/USER. CONSUMER/USER SHALL AGREE, TO THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY, SAVE, AND HOLD THE CITY OF LUBBOCK HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS, LOSSES, AND CAUSES OF ACTION, WHICH MAY BE ASSERTED BY ANYONE RELATED TO THE TRANSPORTATION AND DELIVERY OF SAID WATER WHILE TITLE REMAINS IN THE CONSUMER/USER. 2.4 METERING DEVICE, CALIBRATION, AND READING The City of Lubbock shall provide the maintenance of the necessary Point of Delivery metering device for properly measuring the quantity of water delivered to the Consumer/User. Calibration of such metering device shall be done on a reasonable time schedule, but not less frequently than once every two (2) years, or more frequently than once every six (6) months. A meter registering not more than three percent (3%) accuracy above or below the test result shall be deemed to be accurate or non -material. The previous reading 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 the meter is out of service or out of repair so that the amount of water delivered cannot be ascertained or computed from 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 available data and information. The meter register shall be read by the City of Lubbock at least once a month. All metering equipment, valves, and other appurtenances associated with the metering device and installation shall be and remain the property of the City of Lubbock. 4 2.5 BILLING PROCEDURE A monthly statement of the amount of water determined to be delivered to the Consumer/User through the meter at the Point of Delivery during the preceding month shall be mailed to: City Manager City of Wolfforth PO Box 36 Wolfforth, Texas 79382 All statements for water delivered shall be due and payable from current revenues available to Consumer/User on or before twenty-eight (28) days after issuance of said statement. A late payment charge of ten percent (10%) per annum shall be charged for failure to pay the current due amount within twenty-eight (28) days after issuance of the statement. If payment is not received by the City of Lubbock within thirty-five (35) days after the date of issuance of the statement, the statement shall be deemed delinquent. The City of Lubbock shall notify the Consumer/User 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, the City of Lubbock may, at its discretion, cease deliveries of water to the Consumer/User under the terms specified in this Contract. After water has ceased to be supplied, the City of Lubbock may, at its sole discretion, notify the Consumer/User of its intention to declare the wholesale water supply contract forfeited and null and void. Upon such notice, the Consumer/User 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 the City of Lubbock declaring the Contract forfeited and null and void. Upon a declaration by the City of Lubbock that the Contract is forfeited and null and void, all connections providing the capability to deliver water shall be removed by the City of Lubbock. 2.6 AREA OF SERVICE Use of water purchased under this Contract shall be solely used within the municipal boundaries of the City of Wolfforth and the existing Wolfforth Place subdivision, which lies outside the corporate limits of the City of Wolfforth but is a part of the current City of Wolfforth water system. The City of Wolfforth acknowledges and agrees that the intent of this Interlocal Wholesale Water Contract is that water provided by the City of Lubbock is limited to use within the corporate limits of the City of Wolfforth. To accommodate both the requirement to serve Wolfforth Place and to limit use of water provided by the City of Lubbock to the Wolfforth corporate limits, the City of Wolfforth acknowledges that the current average water use for Wolfforth Place is approximately one million (1,000,000) gallons per month. The City of Wolfforth agrees to produce an equivalent amount of water from sources other than the City of Lubbock (this contract) and to place such water into the City of Wolfforth's water distribution system. The annual report to the City of Lubbock required by Section 5.8, Reporting by User for Additional Source/Supply Capacity will document both the amount of water delivered to Wolfforth Place and the City of Wolfforth's production of an equivalent amount of water from sources other than the City of Lubbock. The City of Wolfforth further acknowledges and agrees that no future outside -city -limits water service will be provided to any customer without the written consent of the City of Lubbock. No other customer, geographic area or premises, of any kind or nature, shall be served by the Consumer/User, directly or indirectly, with water purchased subject to the right of the Consumer/User to resell water within its defined service area. 2.7 TERM OF CONTRACT The term of this Contract shall be a period of twenty-five (25) years, commencing on June 1, 2023 In the event of continued and mutual interest of the terms of this Contract, a new contract shall be negotiated, developed, approved, and executed for the period after the termination of this contract not less than twenty-four (24) months prior to the termination of this contract. However, in the event that a new contract is not or cannot be agreed upon, there shall be no further discharge or responsibilities of the City of Lubbock and the Consumer/User and this Agreement shall terminate. ARTICLE III CONDITIONS OF RECEIVING SERVICE 3.1 CONSUMER/USER FACILITIES Consumer/User agrees and understands that it will install and maintain, at its sole expense, all facilities necessary for receiving, operating and distributing water into its water system from and after the Point of Delivery and that the City of Lubbock shall be under no obligation whatsoever to bear any of said expenses aforementioned. Consumer/User shall not alter, modify, or change the metering device under any circumstances. 3.2 RATES AND PAYMENT Consumer/User shall pay to the City of Lubbock, in a timely manner, those charges for water provided to Consumer/User pursuant to the terms of this Contract. The base monthly rate for the meter installed at each Point of Delivery shall be equal to the rate established by the City Council of the City of Lubbock (City of Lubbock) for meter of equal size as set forth in Section 22.03.084 of Code of Ordinances of the City of Lubbock, as may be amended from time to time. The volume rate charged for water provided shall be equal to the rate established by the City Council of the City of Lubbock charged to wholesale customers as set forth in Section 22.03.085 of the Code of Ordinances of the City of Lubbock, as may be amended from time to time, including the current volume rate multiplier of 1.5 or any other specific volume rate multiplier as may be approved by the City Council of the City of Lubbock for wholesale customers, including the City of Wolfforth. All expenses on the Consumer/User side of each Point of Delivery shall be the sole expense of Consumer/User. The rates, terms, and conditions contained in this Contract are negotiated rates, terms, and conditions that are considered by each party to be fair, just, and reasonable. The Consumer/User will waive any right it may have to appeal any decision affecting the amount paid for water or any other payments made to the City of Lubbock pursuant to this Contract to the Texas Commission of Environmental Quality or any other state agency that has, or may later obtain, jurisdiction over the rates charged by the City of Lubbock. In the event any user fee is imposed on the delivery, taking, sale, use, or consumption of the water received by the Consumer/User from the City of Lubbock, the amount of the user fee allocable to the Consumer/User shall be borne by the Consumer/User. When and if the City of Lubbock shall be required to pay, collect or remit any user fee on water received by the Consumer/User, then the user fee that is not included in the rates under this Contract will be added to the charges otherwise payable to the City of Lubbock and shall solely be the responsibility of the Consumer/User. 3.3 AMOUNT OF QUANTITIES Both parties recognize and acknowledge that the City of Lubbock must undertake considerable financial commitments and potentially increased capacity to its water facilities in order to ensure that it has the capability to provide Consumer/User the water at the contracted amount and the City of Lubbock is relying on Consumer/User's commitments and obligations under this Agreement in order to be able to provide Consumer/User the amount of water as provided by Section 2.2 (the "Amount of Quantities") of this Agreement. Therefore, Consumer/User agrees to purchase and accept at minimum (the "Minimum Required Purchase Amount") the following amounts: Time Minimum Required Purchase Amount Beginning June 1, 2023 through May 31, 75% of 500,000 gallons per day, or 375,000 2026: gallons per day at the South Point of Delivery Beginning June 1, 2026 through May 31, 75% of 750,000 gallons per day, or 562,500 2027 gallons per day combined between both Points of Delivery If CONSUMERIUSER fails to complete the 75% of 500,000 gallons per day, or 375,000 infrastructure necessary at the North Point of gallons per day at the South Point of Delivery Delivery by May 31, 2027 and until such time the infrastructure necessary at the North Point of Delivery is complete and available to accept water At such time as CONSUMER/USER has 75% of 750,000 gallons per day, or 562,500 completed the infrastructure necessary at the gallons per day combined between both North Point of Delivery Points of Delivery 3.4 SANITARY CONTROL A Reduced Pressure Zone (RPZ) prevention device or air gap shall be maintained at all times by the Consumer/User at the Point of Delivery (i.e., between the two (2) systems) or before the Consumer/User storage facility. Where applicable, all costs associated with the installation and maintenance of this backflow prevention device shall be the sole responsibility of the Consumer/User. The plans of such RPZ prevention device or air gap shall be approved in writing by the City of Lubbock and any and all regulatory agencies with appropriate jurisdiction, including the Texas Commission of Environmental Quality. At no time shall a by-pass be installed on or around the backflow prevention device. The Consumer/User shall permit personnel of the City of Lubbock's staff to enter upon the property of the Consumer/User for the purpose of inspecting any and all facilities of both parties relating to and regarding necessary sanitary control. Should the City of Lubbock have reasonable grounds to believe that any condition exists which might result in contamination of the City of Lubbock's water supply or jeopardize any of their certifications with the Texas Commission on Environmental Quality and/or any other federal, state, or local regulatory permits or certifications, then the City of Lubbock shall notify the Consumer/User. The Consumer/User shall immediately correct such condition. In the event the Consumer/User fails to correct such condition then the City of Lubbock may, at its sole discretion, either correct the condition, at the Consumer/User's expense, and include the cost of materials and labor in subsequent billing statements or cease delivering water until such condition is corrected to the satisfaction of the City of Lubbock. In the event the City of Lubbock determines that contamination of its water supply caused by Consumer/User actually exists, the City of Lubbock shall have the absolute right to discontinue service to the Consumer/User until such time as said contamination has been eliminated by the Consumer/User. Nothing herein shall be construed to impose upon the City of Lubbock the duty and obligation to make any inspection or to regulate the quality of water beyond the Point of Delivery to the Consumer/User, and the Consumer/User shall be solely responsible for the operation, maintenance, regulation, employment and prudent management of all facilities beyond the Point of Delivery and the use and delivery of water herein to the citizens of the Consumer/User. The Consumer/User water system operators are hereby notified that any water received from the City of Lubbock will contain chloramines disinfectant. As such, the Consumer/User should adjust their disinfection system operations and monitoring for chloramines accordingly. If these chloramines are passed on to the water customers of the Consumer/User, the Consumer/User is solely responsible for providing the following notice: Chloramines can cause problems to persons dependent on dialysis machines. A condition known as hemolytic anemia can occur if the disinfectant is not completely removed from the water that is used for the dialysate. Consequently, the pretreatment scheme used for dialysis units must include some means, such as a charcoal filter, for removing the chloramines. Medical facilities should also determine if additional precautions are required for other medical equipment. Chloraminated water may be toxic to fish. Fish tank owners, must make sure that the chemicals or filters used are designed for use in water that has been treated with chloramines. The type offilter used for fish tanks may also need to be changed. 3.5 INSURANCE REQUIREMENT FOR BACKFLOW PREVENTION DEVICE Consumer/User shall procure and maintain until all of their obligations pursuant to the Agreement have been discharged, insurance against claims for injury to persons or damage to property which may arise from or in connection with the backflow prevention device described in Section 3.4, above. The insurance requirements herein are minimum requirements for this Contract and in no way limit the indemnity covenants contained in this Contract. The City of Lubbock in no way warrants that the minimum limits contained herein are sufficient to protect the Consumer/User from liabilities that might arise under this Contract. Consumer/User is free to purchase additional insurance as may be determined necessary. Consumer/User shall provide coverage with limits of liability not less than those stated below: Commercial General Liability Contract shall include bodily injury, property damage and broad form contractual liability coverage. General Aggregate $2,000,000 Products — Completed Operations Aggregate $1,000,000 Each Occurrence $1,000,000 The Contract shall be endorsed to include the City of Lubbock as an additional insured with respect to liability arising out of the backflow prevention device connection and delivery of water supply under the provisions of this Contract. In addition, the policy must be endorsed to include a waiver of subrogation in favor of the City of Lubbock. Consumer/User shall furnish the City of Lubbock with certificates of insurance as required by this Contract. The certificates for each insurance Contract are to be signed by a person authorized by that insurer to bind coverage on its behalf. 0 3.6 WATER CONSERVATION In the event the City of Lubbock must implement its Water Conservation and/or Drought Contingency Plan for its system, then the Consumer/User shall receive the same water allotment under such plan as any other customer of similar size and water needs served by the City of Lubbock. In the event that the City of Lubbock must implement its Drought Contingency Plan in accordance with Sections 22.08.078 and 22.08.079 of the City of Lubbock Code of Ordinances, the Amount of Quantities required of CONSUMERIUSER shall be reduced as follows for each month that Lubbock goes into and/or remains in a drought stage Drought Stage Allocation Reduction Minimum Required Purchase Amount Reduction Stage 1 5% 0% Stage 2 15% 0% Stage 3 25% 0% Stage 4 35% Equal to Reduced Allocation The Consumer/User shall adopt, develop, implement, and maintain water conservation and drought contingency plans, programs, and rules incorporating loss -reduction measures and management practices, techniques, and technologies. These water conservation and drought contingency plans, programs, and rules shall be at least as promotional of conservation as the plans, programs, and rules as developed and adopted by the City of Lubbock, as determined by the City Council of the City of Lubbock. Such plans shall be 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 in a manner that at a minimum reflects the plans, programs, and rules as developed and adopted by the City of Lubbock. The Consumer/User will at all times practice due diligence and monitoring of water for beneficial use. The Consumer/User will establish and enforce its water conservation and drought contingency plan, program, and rules, and the Consumer/User will make annual reports on its enforcement efforts to the City of Lubbock. The Consumer/User shall develop and implement a water conservation plan or water conservation measures using the applicable elements of Title 30, Chapter 288, of the Texas Administrative Code, and any successor regulations thereto. In case of a shortage of water resulting from drought, the water to be distributed shall be divided in a fair manner among all customers, as determined by the City Council of the City of Lubbock, in accordance with state laws and regulations. The City of Lubbock's obligations under this Contract shall be subject to water conservation plans and drought contingency plans adopted by the Lubbock City Council or required or approved by the Texas Commission on Environmental Quality, or any other or additional federal, state, or local regulatory district or entity with power to require or approve water conservation and drought contingency plans. 10 ARTICLE IV DEFAULTS AND REMEDIES 4.1 NOTICE OF DEFAULT In the event that either the City of Lubbock or the Consumer/User should breach, fail to comply with or violate any term or provision of a wholesale water supply contract under the terms of this Contract ("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 thirty (30) days to cure the Default or shall notify the other party in writing of the need for additional time to cure said Default, with the notification to also include specific and detailed justification for the extension of time. Unless this Contract provides otherwise, in the event said Default is not cured within the time period described above, with respect to the Consumer/User as the defaulting party, then the City of Lubbock may pursue any and all remedies provided by law, equity, contract or otherwise, including without limitation, declaring this Contract terminated and null and void. Unless this Contract provides otherwise, in the event said Default is not cured within the time period described above, with respect to the City of Lubbock as the defaulting part, then Consumer/User may as its sole and exclusive remedy, either seek specific performance of the terms of this Contract or declare the Contract terminated and null and void. If an alleged default cannot be cured within thirty (30) days from the date of receipt of the notice of default, the alleged defaulting may provide proof to the non -defaulting party that the alleged defaulting party is making a good faith attempt to cure the alleged default. The determination that the attempt to cure was conducted in good faith shall be at the discretion of the City of Lubbock. If the alleged defaulting party is unable to cure the alleged default within ninety (90) days after the notice of default, the non -defaulting party may seek the remedies set forth above. ARTICLE V MUTUAL CONDITIONS 5.1 FAILURE TO DELIVER The City of Lubbock does not warrant that the services and deliveries provided for under this Contract will be free from, and the City of 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 furnishing of any such services or deliveries of water or caused by floods, drought, alterations, strikes, lockouts, blackouts, shortages of equipment or material, labor controversies, accidents, or acts of God, the elements, or any other event of "force majeure" or cause beyond the reasonable control of the City of Lubbock. In the event of a shortage of water, or if distribution of water by the City of Lubbock to the Consumer/User is deemed inappropriate by any regulatory agency or law, the supply of water to the Consumer/User under this Contract shall be reduced or ceased as deemed necessary by the City of Lubbock to protect the interests of its citizens and/or comply with all rules and regulations of any regulatory agency having jurisdiction over the operation of the City of Lubbock's facilities. A reduction in supply of water under this section that lasts for longer than thirty (30) days will result in a commensurate reduction in the take or pay amount in 2.2 of this Contract only if such reduction falls below the Minimum Required Purchase Amount as set forth in 3.3 of this Contract. 5.2 NO ASSIGNMENT All promises, undertakings, Contracts, covenants and contracts herein contained by or on behalf of either the City of Lubbock or the Consumer/User shall bind the successors and permitted assigns of either party, whether so expressed or not; but neither the City of Lubbock nor the Consumer/User shall have the right to assign under this Contract, without the written consent of the other party. 5.3 ENTIRETY AND AMENDMENTS It is expressly stipulated that the City of Lubbock and the City of Lubbock's agents have made no representations, warranties, or promises with respect to the delivery of water and all other matters contained in this Contract, except as herein expressly set forth, and this Contract supersedes all prior Contracts and understandings, if any, relating to the subject matter hereof. This Contract may only be amended by an instrument in writing executed by the duly authorized representative of the party against whom the amendment is sought to be enforced. 5.4 WAIVER No failure on the part of the City of Lubbock at any time to require the performance by the Consumer/User of any portion of this Contract shall in any way affect the City of Lubbock's right to enforce such provision or any other provision. Nor shall any waiver by the City of Lubbock of any provision 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 except by written amendment executed and authorized by the governing bodies of the parties. No officer or agent of the City of Lubbock or the Consumer/User is authorized to waive or modify any provision of this Contract. 5.5 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, 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 the Contract in any forum having jurisdiction, and the Consumer/User and the City of 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. The Consumer/User represents and warrants to the City of Lubbock that it has obtained and will maintain during the term of its wholesale water supply contract all necessary permits. 12 5.6 HEADINGS All heading 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, provisions, and intent hereof. 5.7 LIABILITY AND HOLD HARMLESS CONSUMER/USER SHALL INDEMNIFY, TO THE FULLEST EXTENT PERMITTED BY LAW, AND HOLD HARMLESS AND RELEASE THE CITY OF LUBBOCK FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, LOSSES, DAMAGES OR LIABILITIES, OF ANY KIND OR NATURE, WHICH ARISE DIRECTLY OR INDIRECTLY, OR ARE RELATED TO, IN ANY WAY, MANNER, OR FORM, THE ACTIVITIES CONTEMPLATED HEREUNDER OR OMISSION OF SUCH ACTIVITIES, INCLUDING WITHOUT LIMITATION, SUCH LOSSES, DAMAGES, CLAIMS OR LIABILITIES ARISING FROM OR RELATED TO, IN ANY WAY, MANNER, OR FORM, THE NEGLIGENCE OR FAULT OF THE CITY OF LUBBOCK, ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS, AGENTS AND/OR DESIGNEES. 5.8 REPORTING BY USER FOR ADDITIONAL SOURCE/SUPPLY CAPACITY Each October 1 of every year, the Consumer/User shall provide to the City of Lubbock a written and documented report of new water rights being negotiated and or purchased, new water wells drilled from previous annual report, formal water planning for future needs, and any other actions formally approved by the Mayor and City Council of the Consumer/User to balance water use, conservation, population growth, and total current water supply from all sources. At the discretion of the City of Lubbock, the Consumer/User may be required to also verbally present such annual report to the City of Lubbock's authorized representatives in Article V Section 5.9 of this Contract within ninety (90) days of the annual written report. The written report shall be sent to the authorized representative of the City of Lubbock in Article V Section 5.9 of this Contract no later than October 1 of each year. 5.9 NOTICE All notices, payments and communication required or allowed by this Contract, unless otherwise provided herein, shall be in writing and be given either (i) in person or by telephonic facsimile; or (ii) by depositing the notice in the United States mail, postpaid and certified, with return receipt requested, and addressed to the party to be notified. Notice, as herein provided, shall be conclusively deemed to have been provided (i) in the event of delivery in person or by telephonic facsimile, when it is actually received; or (ii) in the event of certified mail, as described above, three (3) days after the notice is deposited in the mail, certified mail, return receipt requested. For the purposes of the notice, the addresses and parties is set forth immediately below. 13 CITY OF WOLFFORTH ATTN: Mayor and City Manager P.O. Box 36 Wolfforth, Texas 79382 Facsimile: (806) 855-4161 THE CITY OF LUBBOCK ATTN: City Manager and Director of Public Works P.O. Box 2000 Lubbock, Texas 79457 Facsimile: (806) 775-3027 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. 5.10 AUTHORITY Consumer/User represents and warrants to the City of Lubbock that it is a political subdivision of the State of Texas and is authorized to enter into a contract under the terms of this Contract and perform each and every term and provision of said Contract, and will continue to be duly authorized to so perform during the term hereof. 5.11 PARTIAL INVALIDITY In the event one or more of the provisions contained in this Contract shall be invalid, illegal, or unenforceable in any respect under any law, rule or regulation, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. 5.12 CURRENT REVENUES Each party paying for performance under this Contract shall make all payments from current revenues available to the paying party. The parties understand and acknowledge that the funding of this Contract is contained in each party's annual budget and is subject to the approval of each party in each fiscal year. The parties further agree that should the governing body of either the City of Lubbock or the Consumer/User fail to approve a budget which includes sufficient funds for the continuance of this Contract, or should fail to certify funds for any reason, then and upon the occurrence of such event, this Contract shall terminate as to that party, and the party shall then have no further obligation to the other party. When the funds budgeted or certified during any fiscal year by a party to discharge its obligations under this Contract are expended, any other party's sole and exclusive remedy shall be to terminate this Contract. 14 5.13 EFFECTIVE DATE This Contract shall be effective and binding between the parties hereto as of the date of execution by the City of Lubbock. 5.14 VENUE AND APPLICABLE LAW THIS CONTRACT IS SUBJECT TO ALL PRESENT AND FUTURE VALID LAWS, ORDERS, RULES AND ORDINANCES AND/OR REGULATIONS OF THE UNITED STATES OF AMERICA, THE STATE OF TEXAS, THE CITY OF LUBBOCK, THE CONSUMER/USER, AND ANY OTHER REGULATORY BODY HAVING JURISDICTION. THIS CONTRACT SHALL BE CONSTRUED AND GOVERNED ACCORDING TO THE LAWS OF THE STATE OF TEXAS. THE SOLE VENUE FOR ANY ACTION, CONTROVERSY, DISPUTE OR CLAIM ARISING UNDER THIS CONTRACT SHALL BE IN A COURT OF APPROPRIATE JURISDICTION IN LUBBOCK COUNTY, TEXAS EXCLUSIVELY. 5.15 NO THIRD -PARTY BENEFICIARIES This Contract is entered solely by and between, and may be enforced only by and among the Parties. Except as set forth above, this Contract shall not be deemed to create any rights in or obligations to any third parties. 5.16 NO PERSONAL LIABILITY Nothing in this Contract is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Contract. 5.17 NO JOINT ENTERPRISE This Contract is not intended to, and shall not be construed to create any joint enterprise between or among the parties. 5.18 GOVERNMENTAL IMMUNITY ACKNOWLEDGED AND RETAINED THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT NO PROVISION OF THIS CONTRACT IS IN ANY WAY INTENDED TO CONSTITUTE A WAIVER BY ANY PARTY OF ANY IMMUNITIES FROM SUIT OR LIABILITY THAT A PARTY MAY HAVE BY OPERATION OF LAW. THE PARTIES RETAIN ALL GOVERNMENTAL IMMUNITIES. 15 Signed this the _13 _ day of December , 20 22 CITY OF LUBBOCK BY: ATTEST: Reb cca Garza, City Se e APPROVED AS TO CONTENT: W. Jarr tt Atkinson, City Manager VED AS TO CITY OF WOLFFORTH BY: Charles Addington II, May ATTEST: Terri Robinette, City Secretary Wood FXafiVm, P.E., Division Director of Public Works 0��v01101-3TI Am"s, Deputy City Attorney 16 Interlocal WholesaleContract"Exhibit A" with City of Wolfforth Ia� �,�, ;:•��•,�,1_�==' =Div=�^_ H 5 > - - � a. 0 x� M 0 N 1 VIN ST Z 37/ KT. 90 tti f r 4 211D711 SF PRESTON TRAILS IN 01 ST � g�`�ti � m r- ! i r - '► N 4TW ST fi A. FJ, N 31ZD sF y �. ��5roe N 2NIP ST O IL DONALD PREMN DIE � # n Ila AVE q 6 PATEL DR o� x. PARK AJD Point Feet o I,000 2,000 3.000 1 _ , Lubbock City Limits As required by Chapter 2051, Geospatial Data Products of the Government Code, this product is for informational purposes and may not have been prepared for or be suitable for legal, Wolfforth City Limits engineering, or surveying purposes. It does not represent an on -the -ground survey and represents only the approximate relative location of property boundaries. iP600- City of Lubbock TEXAS Digital Orthophotography - May 2021