HomeMy WebLinkAboutResolution - 2022-R0518 - Interlocal Wholesale Wastewater Contract 17028 with TDCJ at John T. Monford PrisonResolution No. 2022-RO518
Item No. 5.17
December 13, 2022
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 Interlocal Wholesale Wastewater Contract No.
17028 to permit the treatment of wholesale wastewater outside its municipal boundaries to
federal, state or local governments pursuant to appropriate intergovernmental contracts, by and
between the City of Lubbock and the Texas Department of Criminal Justice, 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 on the 13th
ATTEST:
. r�-) A'
Rebe ca Garza, City Secre
APPROVED AS TO CONTENT:
Enk Rejin , Assistant City Manager
APPROVED AS TO FORM:
City
RES. Contract Water Sales,Tx Dept Criminal Justice 2022
day of December , 2022.
Resolution No. 2022-RO518
TDCJ Contract Number: 696-FD-23-28-U018
INTERLOCAL WHOLESALE WASTEWATER CONTRACT
STATE OF TEXAS §
CITY OF LUBBOCK §
This contract (COL Contract No. 17028) made and entered into this, the 13th day of,
December 2022 between the City of Lubbock, Texas, a Texas home rule municipal corporation
located in Lubbock County, hereinafter referred to as "Lubbock") and the Texas Department of
Criminal Justice (hereafter called "Customer), an agency of the State of Texas.
WITNESSETH
WHEREAS, the Customer is an agency of the State of Texas operating a correctional
facility located at 8602 Peach Avenue, Lubbock, Texas outside of the jurisdiction of Lubbock,
commonly called the Montford Unit.
WHEREAS, the public health, welfare and safety of the residents of Lubbock and tenants
and residents of the Customer require the development of adequate systems of sewage collection
and disposal, the elimination of water pollution and the preservation of the water resources of the
State of Texas; and
WHEREAS, Lubbock is required to comply with standards and treatment methods for
wastewater as set forth in federal, state and local laws and regulations and permits; and
WHEREAS, Lubbock and Customer have an interest in maintaining and restoring
integrity of waters and the chemical, physical and biological integrity of waters and water
resources and insuring the reduction of pollution in said waters and water resources and planning
the use, development, restoration, preservation, and enhancement of said waters and water
resources; and
WHEREAS, Customer desires to enter into a contract for wastewater collection,
treatment, and disposal/reuse services and Lubbock desires to provide these wastewater services
to Customer; and
WHEREAS, Chapter 791 of the Government Code, authorizes Lubbock and Customer to
enter into this Contract for goods and services;
TDCJ Contract Number: 6%-FD-23-28-U018
WHEREAS, Section 22.04.041 of the Code of Ordinances of the City of Lubbock permits
the wholesale wastewater services outside of its municipal boundaries to federal, state, or local
governments pursuant to appropriate intergovernmental contracts;
NOW, THEREFORE, Lubbock and Customer, in consideration of the terms, covenants
and conditions herein contained, hereby agree as follows:
ARTICLE 1
PROVISIONS OF WASTEWATER
1.1 TERMS, PROVSIONS, AND CONSIDERATIONS
Lubbock agrees to collect, treat, and reuse or dispose of wholesale wastewater received from the
Customer, subject to the conditions precedent and under and pursuant to the terms, provisions, and
conditions of this Contract.
1.2 DEFINITIONS
When used in this Contract, these terms shall be defined as follows:
Act — The Clean Water Act, as amended. (33 U.S.C. 1251, et seq.)
Biochemical Oxygen Demand (BOD) — The quantity of oxygen utilized in the biochemical
oxidation of organic matter under standard laboratory procedure, as specified in "Standard
Methods" in five (5) days at twenty (20) degrees Centigrade expressed as milligrams per liter
(mg/1).
Calibration — Verification of primary measuring device and secondary instrumentation accuracy
utilizing standard primary device procedures and calibration signals and/or a separate flow
measurement instrument.
Customer System — The facilities of Customer used for pretreatment, collection and transportation
of wastewater to the point of entry.
2
TDCJ Contract Number: 696-FD-23-28-UO18
Delivery Facilities — All facilities necessary for the transmission of wastewater to the Lubbock
System that are on the Customer's side of the point of entry that are constructed specifically to
allow Lubbock to serve Customer.
Director — The Director of Water Utilities of the City of Lubbock.
Lubbock System — Lubbock's wastewater collection and treatment system, also defined as
"publicly owned treatment works" as provided in Title 40 of the Code of Federal Regulations.
Industrial User — Any industry that discharges industrial processing wastewater, including
sanitary wastewater in the City of Lubbock's sanitary sewer system.
Industrial Wastes — All water -borne solids, liquids or gaseous substances resulting from any
commercial, industrial, manufacturing or food processing operations, or from the development of
an natural resource, or any mixture of these with water or domestic sewage.
Infiltration — Water that has migrated from the ground into the wastewater system.
Inflow — Water other than wastewater that enters a sewerage system (including sewer service
connections) from sources such as, but not limited to, roof leaders, cellar drains, yard drains, area
drains, drains from springs and swampy areas, manhole covers, cross connections between storm
sewers, and sanitary catch basins, cooling towers, storm waters, surface runoff, street wash waters
of drainage. Inflow does not include, and is distinguished from, infiltration water.
Liquid Waste — The water -borne solids, liquids, and gaseous substances derived from certain
sources including, but not limited to, grease trap, septic tank, chemical toilet waste, and sand trap
waste.
Metering and Sampling Facility — The meter, meter vault, and all metering and telemetry
equipment required to measure and/or sample wastewater flows of the Customer at the point of
entry or other such locations, as may be mutually agreed upon in writing.
3
TDCJ Contract Number: 696-FD-23-28-U018
Non -metered Area — Areas within the Customer's statutory boundaries that generate wastewater
that do not drain into a part of the Customer System for which wastewater flow is measured by an
approved metering and sampling facility.
Point of Entry — Collectively, the metering facilities or, where no metering facilities are utilized,
the points of connection to the Lubbock System, as set forth in Section 2.2, below, unless otherwise
mutually agreed upon in writing.
Pretreatment or Treatment — The reduction of the amount of pollutants, the elimination of
pollutants, or the alteration of the nature of pollutant properties in wastewater to a less harmful
state prior to or in lieu or discharging or otherwise introducing such pollutants into a Publicly
Owned Treatment Works (" POTW" ). The reduction of alteration can be obtained by physical,
chemical or biological processes, or process changes by other means, except as prohibited by 40
CFR Section 403.6(d). Pretreatment or treatment shall also include, without limitation, such
devices as grease, oil, or sand interceptors, and hydrocarbon removal units.
Pretreatment Requirements — Any substantive or procedural requirement related to
pretreatment, other than a national pretreatment standard, imposed on an industrial user.
Significant Industrial User - Any user which discharges industrial wastes directly or indirectly
into the Customer System or Lubbock System that:
(1) Is subject to National Pretreated Standards or categorical pretreatment Standards of the U.S.
Environmental Protection Agency or Texas Commission on Environmental Quality, or the
successors thereof; or
(2) Discharges an average of twenty-five thousand (25,000) gallons per day or more of process
wastewater (excluding sanitary, non -contact cooling, and boiler blowdown wastewater);
(3) Contributes a process waste stream which makes up five percent (5%) or more of the
average dry weather hydraulic or organic capacity of the Lubbock System treatment plant;
DON
4
TDCJ Contract Number: 696-FD-23-28-U018
(4) Has a reasonable potential, in the opinion of the Director, for adversely affecting the
Lubbock System due to discharge or wastewater or for violating any pre-treatment standard
or requirement.
Standard Methods — The examination and analytical procedures set forth in the Iatest edition
of "Standard Methods for the Examination of Water and Wastewater," as prepared, approved and
published jointly by the American Public Health Association, The American Water Works
Association and the Water Pollution Control Federation.
System Access Fee — A capital contribution (impact fee, capital recovery fee, system development
charge) which represents a proportional capital cost of the capacity of Lubbock facilities that
provide utility services and benefits common to all customers, less depreciation, outstanding debt,
and appropriate contributions paid to Lubbock, required to provide service for new connections,
whether located within the jurisdictional limits of Lubbock or Customer.
Total Suspended Solids (TSS) or Suspended Solids — The solids that either float on the surface
of, or in suspension in water, sewage or other liquids, and which are largely removable by
laboratory filtration. Quantitative determination of suspended solids shall be made in accordance
with procedures set forth in "Standard Methods."
Wastewater — Liquid or water -carried waste products and sewage from whatever source,
including without limitation, residential dwellings, commercial buildings, industrial and
manufacturing facilities, and institutions, whether treated or untreated, which are discharged into
or permitted to enter the Lubbock System. The terms wastewater and sewage are interchangeable.
ARTICLE 2
CONDITIONS OF SALE OF WASTEWATER SERVICES
2.1 CONNECTION TO THE LUBBOCK SYSTEM
Subject to the terms hereof, Lubbock hereby grants to Customer, upon compliance with the terms
and conditions contained herein, permission to connect its System to the Lubbock System.
5
TDCJ Contract Number: 696-FD-23-28-U018
Lubbock agrees to accept all wastewater from Customer at the point of entry as designated on
Exhibit "A", attached hereto and incorporated herein.
The cost of all delivery facilities necessary to convey wastewater to the designated point of entry,
whether shown on Exhibit "A" or mutually agreed upon at a later date, together with the cost of
connection of the Customer System to the Lubbock System, including metering and sampling
facilities, shall be constructed by Customer. All such metering and delivery facilities shall be
approved by Lubbock. In the event Lubbock requires Customer to increase the size of any such
delivery facility, the difference in the cost of the delivery facility of Customer previously approved
by Lubbock and the cost of the delivery facility as requested by Lubbock shall be at Lubbock's
expense and may be allocated as a system cost if so determined in future cost -of -service studies.
Customer shall be responsible for the design, construction of delivery facilities. All designs,
materials and specifications shall conform to Lubbock's requirements. Plans and specifications
for any delivery facility which actually connects to the Lubbock System shall be submitted to the
Director for written approval. Such approval shall not be unreasonably withheld. No construction
shall begin until such approval has been given. Customer agrees that Lubbock has the right to
make periodic inspections during the construction phase of the delivery facilities and final
acceptance of same is subject to written approval of Director. Final acceptance of such facility
from the point of connection up to and including the metering and sampling facility is subject to
the inspection and written approval of the Director.
2.2. SERVICE AREA
Customer agrees not to provide wastewater service to or contract or subcontract with any new
customer who needs wastewater service. The Customer may provide sewer service solely to the
facilities associated with the Montford Unit at 8602 Peach Avenue. No other customer, geographic
area or premises, of any kind or nature, shall be served by Customer, directly or indirectly.
6
TDCJ Contract Number: 696-FD-23-28-U018
2.3 WASTEWATER SYSTEM MAINTENANCE
Customer agrees to maintain its system in good condition and to make repairs in a
timely manner. Lubbock shall not have any responsibility or liability now or ever for the operation
of the Customer's System.
Lubbock Agrees to maintain its system in good condition and to make repairs in a timely manner.
Customer shall not have any responsibility or liability now or ever for the operation of the Lubbock
System, except as otherwise provided herein.
2.4 METERING AND SAMPLING
Customer shall be responsible for providing metering, if required by Lubbock, and sampling
facilities at the point of entry in accordance with the Lubbock Code of Ordinances, Sec 22.04.212,
as may be amended from time to time.
All wastewater flow discharged into the Lubbock System by Customer shall be measured by using
the amount of potable water flowing through the Customer's potable metering device at the Point
of Delivery under the terms and conditions of the Wholesale Water Sales Contract between
Lubbock and the Customer. Should both parties agree in writing that additional meters or alternate
methods are necessary to accurately quantify the wastewater volumes discharged, the agreed upon
method shall be used for determining the wastewater volume. The City Council of Lubbock hereby
delegates the authority to approve such alternative flow measurement to the City Manager of
Lubbock, or his or designee. The Customer and Lubbock may agree to differing methods of
volume determination for each point of entry.
All readings of the meter will be maintained by Customer. Lubbock shall have access to such
records during reasonable business hours and shall be furnished with monthly totalizer reading for
the point of entry metering and sampling facility.
Customer shall calibrate and routinely service the meter not less than once during every one (1)
year period. Copies of the results of such calibration and all related information shall be provided
7
TDCJ Contract Number: 696-FD-23-28-U018
to Lubbock. Customer shall notify Lubbock at least seventy-two (72) hours in advance of the date
and time for any calibration and Lubbock may observe, if so desired.
Upon any calibration, if it is determined that the accuracy envelope of such meter is found to be
lower than ninety-five percent (95%) or higher than one hundred five percent (105%) expressed
as a percentage of the full scale of the meter, the registration of the flow as determined by such
inaccuracy began, if such time is ascertainable; or, if such time is not ascertainable, then for a
period extending back one-half 1/2) of the time elapsed since the date of the last calibration, but
in no event further back than a period of six (6) months.
If any meter used to determine volume from Customer is out of service or out of repair so that the
amount of wastewater metered cannot be ascertained or computed from the reading thereof, the
wastewater delivered through the period such meter is out of service or out of repair shall be
estimated and agreed upon by the parties hereto upon the basis of the best data available. This
basis for estimating such flow includes, but is not limited to, extrapolation of past patterns of flow
for said metering station under similar conditions.
Lubbock may periodically determine the quality of the wastewater at the metering and sampling
facilities or other agreed upon sampling points for the purpose of billing for the strength of the
wastewater and relating to compliance with pre-treatment requirements. To determine the quality
of the wastewater, in the event Lubbock desires to conduct sampling activities, Lubbock shall
collect twenty-four (24) hour composite samples or other sampling methods as deemed necessary
or advisable by Lubbock. If, at the request of Customer or at the request of the Director, more
extensive monitoring is desired, such additional monitoring shall be paid for by the party making
the request and shall be done in compliance with Paragraph 2.5.
Lubbock shall analyze the samples collected in accordance with standard methods. Customer may
be present during the initial setup of sampling equipment and at the time of pickup for the sample.
Lubbock agrees, if requested, to split said wastewater samples with Customer.
8
TDCJ Contract Number: 696-FD-23-28-U818
2.5 BILLING PROCEDURES
Wastewater rates to be paid shall be set forth in Section 22.04.041 of the Lubbock Code of
Ordinances, as may be amended from time to time.
Bills for wastewater treatment and disposal service shall be rendered to Customer monthly by
Lubbock. All such bills shall be due and payable by the Customer not more than thirty (30) days
from the billing date. The bill will show current charges, as well as past -due charges, if any.
Current charges shall be the amount due for wastewater collection, treatment and disposal service
provided since the prior billing period. Past -due shall be the total amount unpaid from all prior
billings as of the current billing date. Payments received by Lubbock shall first be applied to the
past -due charges, if any, and thereafter to the current charges.
In the event a payment is not paid as specified in the Agreement, terms of payment shall be in
accordance with the Texas Prompt Payment Act, Chapter 2251, Texas Government Code.
The parties hereto agree that services obtained pursuant to this Contract are essential and
necessary to the operation of Customer's waterworks and wastewater facilities and that all
payments made by each Customer hereunder shall constitute reasonable and necessary operating
expenses of Customer's waterworks and wastewater systems.
2.6 TERMS OF CONTRACT
The term of this contract shall be five (5) years from date of execution. This contract may be
extended for an additional five (5) year period, on identical terms and provisions hereof by
Lubbock providing notice to the Customer no less than ninety (90) days prior to the expiration
of the term thereof, of its desire to exercise its option to extend as set forth herein.
9
TDCJ Contract Number: 696-FD-23-28-U018
ARTICLE 3
CONDITIONS OF RECEIVING SERVICE
3.1 RATES AND PAYMENTS
Customer shall pay Lubbock, in a timely manner as provided in this Contract, those charges for
wastewater services provided to Customer pursuant to the terms of the 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 Lubbock for meter of equal size as set forth in Section 22.04.041 of Code of
Ordinances of the City of Lubbock, as may be amended from time to time. The volume rate
charges for wastewater services 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 22.04.041 of Code
of Ordinances of the City of Lubbock, as may be amended from time to time.
The setting of wastewater rates is a legislative function of Lubbock. To the extend the Customer
has any protest to the rates charged pursuant to this Contract, Customer understands and agrees
that it has the right to ask to address the City Council of the City of Lubbock as to said rates, but
that the City Council of the City of Lubbock ultimately has the legislative authority to determine
such rates.
3.2 CONNECTIONS AND MONITORING
Customer agrees that Lubbock shall have the right to sample wastewater at the point of entry and
such other locations as may be needed for the purpose determining the volume and quality of
wastewater entering the Lubbock System.
Customer agrees to conduct any and all monitoring, sampling and inspection of Customer System
necessary to insure that industrial waste introduced into the Customer System meets the quality
standards set out in Section 3.3 hereof. Upon request to Customer, a representative of Lubbock
will be permitted to observe Customer's collection of samples, and Customer agrees to furnish
Lubbock separate duplicate samples for independent testing, and, upon request, to provide the
Director sample analysis results and pretreatment records.
Customer grants to Lubbock the right to enter Customer's jurisdiction if Lubbock determines that
questionable discharges or prohibited discharges are entering the Lubbock System emanating from
10
TDCJ Contract Number: 696-FD-23-28-U018
the Customer System. Customer agrees to assist Lubbock in locating and eliminating such
prohibited discharges.
3.3 WASTEWATER QUALITY
Customer agrees that on or before thirty (30) days from date of execution of this Contract it shall
enact and cause to be enforced rules, regulations or ordinances at least as stringent as (i) Division
4 and Division 5 of Article 22.04 of Chapter 22 of the Lubbock Code of Ordinances, as may be
amended from time to time; and (ii) applicable state and federal regulations relating to (a)
discharged substances; (b) prohibited discharges; (c) pretreatment requirements; (d) industrial
discharge permitting systems; and (e) industrial self -monitoring reports.
Customer agrees that the quality of the wastewater discharge into the Customer System shall be
equal to or better than the quality standards established by Division 3 of Article 22.04 of Chapter
22 of the Lubbock Code of Ordinances, as may be amended from time to time,
Customer shall not, at any time during the term of this Contract, conduct any activity or discharge
any wastewater to the Lubbock System which would cause it to be classified as a significant
industrial user.
3.4 INFILTRATION AND INFLOW
Customer agrees that it has an obligation to prevent infiltration and inflow into its System and then
into the Lubbock System. Customer further agrees that all sewer connections within its jurisdiction
which ultimately enter into the Lubbock System will be constructed in accordance with applicable
specifications and standards at least equal to those of the Lubbock System. Further. Customer
covenants and agrees to maintain strict supervision and maintenance of its System to prevent
connections through which surface drainage can enter ultimately into the Lubbock System.
Customer shall not make, nor shall it permit to be made, any connection which will contribute
storm water run-off of any kind, including without limitation, from rainwater spouts, rainwater
areas, streets, gutter drain or other source, into its sanitary sewer system.
11
TDCJ Contract Number: 696-FD-23-28-U018
3.5 WASTE HAULER PROHIBITION
Customer agrees to prohibit the introduction of liquid waste or wastewater from waste haulers into
the Customer System, directly or indirectly.
3.6 INSPECTION AND AUDIT
Complete records and accounts required to be maintained by each party hereto shall be kept for a
period required by law or five (5) years, whichever is greater. Each party shall at all times, upon
notice, have the right at reasonable times to examine and inspect said records and accounts during
normal business hours. Further, if required by any low, rule or regulation, make said records and
accounts available to federal and/or state auditors.
3.7 COMPLIANCE AND PERMIT CONDITIONS
Customer acknowledges that Lubbock is the holder of discharge permits issued by the United
States and/or the State of Texas and is subject to regulations and requirements related to the
collection and treatment of wastewater (collectively the "Permit"). Customer agrees that it will
comply with all Permit conditions in any way relating to the collection system and the discharge
into the collection system. Customer shall save and hold Lubbock harmless against any penalty
or fine assessed against Lubbock for any violation of any Permit, if such violation is attributable
or related to an act of omission or commission by Customer.
3.8 REPORTS AND RECORDS
If requested by the Director, the Customer shall provide quarterly any data which may assist
Lubbock in developing methodology for cost of service studies, planning studies for analyzing
federal grants, and system access fees.
ARTICLE 4
MUTUAL CONDITIONS
4.1 SYSTEM ASSISTANCE
In the event Customer requests assistance with its System, Lubbock may, at its option, assist
Customer. Customer agrees to pay Lubbock its actual costs incurred, including, but not limited
to, labor and material expended. Nothing herein shall be construed to require Lubbock to assist
12
TDCJ Contract Number: 696-FD-23-28-U018
Customer. Such costs will be invoiced to Customer and payment made in accordance with the
Texas Prompt Payment Act as previously mentioned in Section 2.5.
4.2 NOTICES
Any notice, communication, request, reply or advice herein provided or permitted to be given,
made or accepted by either parry to the other party must be in writing to:
LUBBOCK
City of Lubbock
Attn: Aubrey Spear, Director of Water Utilities
P.O. Box 2000
Lubbock, Texas 79457
Facsimile: (806) 775-3027 Email: aspear@mylubbock.us
CUSTOMER
Texas Department of Criminal Justice
Contracts & Procurement Department
Attn: Kristie Robertson, Contract Specialist II
Two Financial Plaza, Suite 525
Huntsville, Texas 77340
Facsimile: (325) 223-0310
Email: kristie.robertson@tdcj.texas.gov
The parties hereto shall indicate in writing any change that may occur in such respective addresses
from time to time.
4.3 CONSENT
Whenever, under the terms of this Agreement, Lubbock is permitted to give its written consent or
approval, Lubbock, in its discretion, may give or may refuse such written consent or approval and,
if given, may restrict, limit or condition such consent or approval in any manner it shall deem
advisable.
4.4 WAIVER, REMEDY, SEVERABILITY
No waiver by either party hereto of any term or condition of this Agreement shall be deemed or
construed to be a waiver of any other term or condition or subsequent waiver of the same term or
condition.
13
TDCJ Contract Number: 696-FD 23-28-U018
In addition to any other remedy as may be provided by law, this Agreement shall be specifically
enforceable by the parties hereto. Laws of the State of Texas shall govern the terms, performance,
and enforcement of the Agreement. Exclusive venue for any action shall be in Lubbock County,
Texas.
It is agreed that, in the event any term or provision herein contained is held to be invalid by any
court of competent jurisdiction, the invalidity of such term or provision shall in no way affect any
other term or provision contained herein. In such event, this Agreement shall continue as if such
invalid term or provision had not been contained herein.
4.5 OWNERSHIP AND LIABILITY
No provision of this Agreement shall be construed to create any type of joint or equity ownership
of any property, any partnership or joint venture nor shall same create any other right or liabilities
and customer payments (whether past, preset, or future) will not be construed as granting Customer
partial ownership of, pre -paid capacity in, or equity in the Lubbock System.
Each party to this agreement will be responsible for its own actions in providing services under
this agreement.
Subject to the terms of this provision, liability for damages arising out of the transportation,
delivery, reception, treatment, and/or disposal of all wastewater discharged into the Lubbock
System shall remain in the Customer, together with, except as provided herein, title thereto, until
such wastewater passes through the point of entry to the Lubbock System, at which time liability
for such damage shall pass to Lubbock. Title to any prohibited discharge or contribution to the
Lubbock System in contravention or violation of the terms of this contract and any liability
therefore shall not pass to Lubbock and shall remain in Customer. Customer shall, to the extent
permitted by law, indemnify and save and hold Lubbock harmless from any and all claims,
demands, causes of action, damages, losses, costs, fines, penalties and expenses, of any kind or
manner, including reasonable attorney's fees, arising from, in connection with, or related to any
activity, or the omission of any activity, contemplated by this contract, including without
14
TDCJ Contract Number: 696-FD-23-28-U018
limitation, the transportation, delivery, receipt, treatment and/or disposal of wastewater from
Customer or the Customer's System. The indemnity obligation provided herein shall survive the
termination of this contract.
Contracts made and entered into by Customer for the construction, reconstruction or repair of any
delivery facility shall include the requirements that the independent contractor(s) must provide
adequate insurance protecting both the Customer and Lubbock as insured. Such contract must also
provide that the independent contractor covenant to indemnify, hold harmless and defend both the
Customer and Lubbock against any and all suits or claims for damages of any nature arising out
of the performance of such contract.
4.6 FORCE MAJEURE
No party hereto shall be considered to be in default in the performance of any of the obligations
hereunder (other than obligations of either party to pay costs and expenses) if such failure of
performance shall be due to an uncontrollable force beyond the control of the parties, including
but not limited to, the failure of facilities, flood earthquake, tornado, storm, fire, lightening,
epidemic, war, riot, civil disturbance or disobedience, labor dispute and action or non -action by a
failure to obtain the necessary authorizations and approvals from any governmental agency or
authority of the electorate, labor or material shortage, sabotage, or restraint by a court order or
public authority, which by the exercise of due diligence it shall be unable to overcome. Either
parity rendered unable to fulfill any obligation by reason of an uncontrollable force shall exercise
due diligence to remove such inability with all reasonable dispatch.
In the event the proper operation of the Lubbock System, as set forth above, requires Lubbock to
temporarily interrupt all or part of the services to Customer, no claims for damage shall be made
by Customer against Lubbock.
4.7 DEFAULT AND REA
Notwithstanding anything contained herein to the contrary, any material breach, as below, by
Customer to perform any of the duties or the obligations assumed by Customer or to faithfully
is
TDCJ Contract Number: 696-FD-23-28-U018
keep and perform any of the terms, conditions and provisions hereof shall be cause for termination
of this Agreement by Lubbock in the manner set forth in this Section.
In addition to the remedy of termination, in the event of material breach of the Agreement by
customer, Lubbock may also seek any other remedy available to it by law, equity, contract, or
otherwise. The remedies provided to Lubbock, in the event of a material breach of the Agreement
by Customer, shall be cumulative in nature and may be exercised concurrently by Lubbock.
Lubbock shall deliver to Customer within sixty (60) days written notice of the breach or default of
Customer and its intention to terminate this Agreement if Customer fails to cure or adjust such
material breach, including in such notice a reasonable description of the breach. If within said
sixty (60) days Customer shall fail or refuse to cure such default to the satisfaction of Lubbock,
then and in such event, Lubbock shall have the right, without any liability whatsoever on the part
of Lubbock, to immediately declare this Agreement terminated and to exercise any and all other
rights and remedies it may have, as set forth above. In the event of termination of this Agreement,
all rights, powers, and privileges of Customer hereunder shall cease and terminate and Customer
shall make no claim of any kind whatsoever against Lubbock, its agents or representatives, by
reason of such termination of any act incident thereto. Lubbock shall advise Customer in writing
upon acceptance of the cure of and default.
The following breach, default, or failure to perform a duty or obligation by Customer shall be
considered to be a material breach:
a. Failure to adopt and enforce any rule required to be adopted and enforced herein;
b. Failure to make any payment of any bill, charge or fee as provided for in this Agreement;
c. Making any connection to the Lubbock System at any point except as provided in Section
2.1 hereof;
d. Failure to provide Lubbock ingress and egress for purposes of sampling and operation
and maintenance of any metering or any sampling facility;
e. Failure to permit or conduct any sampling of wastewater as provided for herein;
f. Failure to disconnect industrial users of Customer pursuant to Section 3.2
g. Failure to maintain the quality of discharge as require in Sections 3.0.
16
TDCJ Contract Number: 696-FD-23-28-U418
h. Failure of Customer to comply with Section 3.7 hereof.
In the event of any other nonmaterial breach, default, or failure to perform duties under this
Agreement, Lubbock shall deliver to Customer sixty (60) days advance written notice of such
default. If Customer fails to cure such breach, default or failure, then Lubbock shall give Customer
written notice of such failure to cure and may surcharge Customer five thousand dollars
($5,000.00) per month until such time as Customer cures such nonmaterial default.
Notwithstanding anything to the contrary herein, and in addition to the other rights and remedies
granted to Lubbock hereunder, if the event of a Default by Customer, in the opinion of Lubbock,
presents or may present an imminent or substantial endangerment to the health and welfare of
persons or to the environment, causes interference to the POTW or contributes to the cause of a
violation by Lubbock of its Permit, Lubbock may suspend service hereunder after twelve (12)
hours' notice and opportunity to cure to Customer. Such suspension may continue, without
liability of any kind or nature to Lubbock, for so long as such imminent or substantial
endangerment shall be present up to the date this contract is terminated as provided herein.
Any failure by Lubbock to so terminate this Agreement or the acceptance by Lubbock of any
benefits under this Agreement for any period of time after such material breach, default, or failure
by Customer shall not be determined to be a waiver by Lubbock of any rights to terminate this
Agreement for any subsequent material breach, default, or failure.
In the event Lubbock shall fail to perform under this Agreement, Customer may, as it sole and
exclusive remedy, terminate this Agreement, upon providing notice to Lubbock in the same
manner Customer is to be provided notice pursuant to the notice provisions provided above
regarding notice of material breach of Customer.
4.8 EFFECTIVE DATE
This Contract, together with all terms and conditions and covenants, shall be effective as of the
date of the execution hereof by Lubbock.
17
TDCJ Contract Number: 696-FD-23-28-U018
4.9 CONDITION PRECEDENT
The obligation of Lubbock to perform under this Agreement is subject to the condition precedent
that, prior to accepting any liquid waste, wastewater or other water pursuant to the terms hereof.
Lubbock and Customer shall have received written approval and authorization to perform
hereunder by the Environmental Protection Agency of the United States of America, the Texas
Commission of Environmental Quality and any other governmental or regulatory body or authority
having jurisdiction over such matters.
4.10 NUSCELLANEOUS
This Agreement is subject to all applicable federal and state laws and any applicable permits, rules,
or amendments adopted pursuant to Section 3.3 rules, orders, and regulations of any state of federal
governmental authority having or asserting jurisdiction.
The Customer agrees to abide by and comply with any changes in this Agreement made necessary
by an amendment or revision to state or federal regulations.
Upon prior notice by Lubbock, any duly authorized employee of Lubbock bearing proper
credentials and identification shalt notify Customer of need for access to any premises located
within Customer's jurisdiction as may be necessary for the purpose of inspections and observation,
measurement, sampling and texting and/or auditing, in accordance with the provisions of this
Contract. Upon such notice Customer shall immediately allow access to the Lubbock
representative. Customer may elect to accompany the Lubbock representative.
In each instance herein where reference is made to a federal or state statute regulation or rule, it is
the intention of the parties that, at any given time, the current federal or state statute, regulation or
rule shall apply.
If a publication or reference work referred to herein is discontinued or ceases to be the general
accepted work in its field, or if conditions change, or new methods or processes are implemented
by Lubbock, new standards shall be adopted which are in compliance with state and federal laws
and any valid rules and regulations pursuant thereto.
18
TDCJ Contract Number: 696-FD-23-28-U018
Lubbock must comply with all federal, state and local government requirements to obtain grants
and assistance for system design, system construction and studies. Customer agrees to assist
Lubbock in compliance by setting adequate rates, establishing proper user charges and complying
with governmental requirements.
Section headings in this Agreement are for convenience only and do not purport to accurately or
completely describe and contents of any section. Such headings are not to be construed as part of
this Agreement or any way defining, limiting or amplifying the provision hereof.
4.11 CURRENT REVENUES
Each party paying for performance under this Agreement shall make all payments from current
revenues available to the pay party.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their
respective officers thereunto duly authorized.
LUBBOCK:
City of Lubbock
BY:
ATTEST:
CUSTOMER:
Texas Department of Criminal Justice
BY:
Ron Steffa, Chief rulancial Officer
ATTEST:
16 )K" -, � L'4
Reb ca Garza, City Sec a
nZ
TDCJ Contract Number: 696-FD 23-28-UO18
AS TO
ood FrWiro.E., Director of Public Works
Q.
Aubrey A. S ar, P.E., Virector of Water Utilities
APPROVED AS TO FORM:
Amy s, Assistant City Attorney
20
If
Exhibit A
N! pa -Am.- v Points of Delivery
TDCJ Montford Unit
pat Wholesale Wastewater Contract..
r.
hL3L
Points of Delivery
Lift Stations
Sewer Force Main Lines
ao"d h,
.f=..bwft p—bwr&" no dft m Woo 0 250 500 750 1,000
ura�yaty tko-d�
Pal Feet
Sewer- Collection Lines
i. 7 - _.Y �1.'
City of
Lubboc
A