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HomeMy WebLinkAboutResolution - 3610 - Service Agreements - Landowners, - Nonpotable Remedial GW, Land Application Site - 05_09_1991Resolution No. 3610 May 9, 1991 Item #19 JCR:da 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 nonpotable water service agreements for the supply of available nonpotable remedial ground water to landowners (Earl Foerster, Richard C. Adams, Joe E. Hall, Bill Sides and Gentry Bros. Farms) near the City's Land Application Site, attached herewith, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this 9th ATTEST: kAl Al, OVED AS TO CONTENT: r D Aftwkit's,'Direttor of Wa er Utilities Operations APPROVED AS TO FORM: day of May , 1991. ' B. C. McM NN, MAYOR Resolution No. 3610 May 9, 1991 Item #19 STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: --GOUNTY OF LUBBOCK § This Contract is made by and between CITY of Lubbock (herein called "CITY"), a municipal corporation located in Lubbock County, acting by and through its undersigned duly authorized mayor as authorized by specific action of its City Council; and �e&Z �y S ?GL (herein called "NONPOTABLE WATER CUSTOMER"), acting as an independent entity. 1. RECITALS 1-1. This Contract is made to provide access to CITY'S existing nonpotable water system and to define the terms and conditions under which CITY will provide nonpotable water for NONPOTABLE WATER CUSTOMER'S water system to make said nonpotable water available for nonhuman consumption purposes only on property located near the City of Lubbock's Land Application Site as shown on Attachment "A", and as of 19V 1-2. This Contract is entered into as the result of a request from NONPOTABLE WATER CUSTOMER to receive said nonpotable water from CITY'S system. For and in consideration of the mutual agreement, covenants, obligations, and benefits of this Contract, CITY and NONPOTABLE WATER CUSTOMER contract and agree as follows: 2. DEFINITIONS All words and phrases used in this Contract shall be construed in accordance with their definitions as are contained herein. 1 3. NONPOTABLE WATER CUSTOMER APPLIES FOR WATER SERVICE NONPOTABLE WATER CUSTOMER makes application to CITY that it furnish nonpotable water service by providing access to its existing nonpotable water system. NONPOTABLE WATER CUSTOMER'S nonpotable water system located near CITY'S Land Application Site is that property described in Attachment A of this Contract. 4. TERMS, PROVISIONS AND CONSIDERATIONS CITY will furnish such service and will perform as required by the terms of this Contract in consideration of the commitments made by NONPOTABLE WATER CUSTOMER to CITY and to each other under the terms of this Contract, provided however, the obligation of CITY to provide service is conditioned upon compliance by NONPOTABLE WATER CUSTOMER with all present and future requirements of the U. S. E. P. A., the Texas Water Commission, the Texas Department of Health, and other present and future agencies having jurisdiction over ground water and nonpotable water, and upon the availability of nonpotable water for distribution to NONPOTABLE WATER CUSTOMERS as determined by the CITY. And the Parties agree to additional terms and conditions as follows: 5. CITY'S CODE OF ORDINANCES PART OF CONTRACT CITY'S Code of Ordinances and amendments thereto on file at the office of CITY'S city secretary are made a part hereof. RIA 6. CITY SHALL FURNISH CERTAIN WATER SYSTEM FACILITIES AND NONPOTABLE WATER CUSTOMER SHALL COMPLY WITH CERTAIN CONDITIONS OF SERVICE: MUTUAL CONDITIONS: TERM 6-1. CITY Shall Furnish Facilities CITY shall furnish its existing nonpotable water system facilities and construct a water tap and metering facilities as are necessary to provide nonpotable water service to NONPOTABLE WATER CUSTOMER'S nonpotable water system for the property described in Exhibit "A" under such conditions as are provided as follows: 6-1.1. Quality and Treatment Nonpotable water is of similar quality as supplied to CITY of Lubbock for irrigation purposes. Nonpotable water does not receive treatment and, therefore, no guarantees concerning the quality thereof are made or implied. Nonpotable water shall be received by NONPOTABLE WATER CUSTOMER on an AS IS basis. CITY may furnish such supply out of various ground water wells at its sole discretion. 6-1.2. Quantity Quantities of nonpotable water shall be delivered as available from CITY'S system. The availability of nonpotable water shall be determined solely by the CITY. No guarantees of quantity, availability, or delivery times and dates are made or implied. All nonpotable water quantities provided shall be measured at the point of delivery. The point of delivery will be at a measuring device located within 100 feet of a connection to NONPOTABLE WATER CUSTOMER'S nonpotable water system. 3 1 The measuring device shall be located in an area reasonably accessible by CITY at all times. CITY shall install a metering station at the point of delivery and at its option may include in such metering station the following devices: (1) control the rate of flow; (2) measure the instantaneous flow of gallons per day; (3) measure peak hourly flow during the day of maximum flow in gallons per day; (4) measure the cumulative volume of water taken; and (5) control changes in the rate of flow, said devices being operable by CITY at the metering station and remotely from within CITY. Deliveries shall be contingent upon completion of facilities necessary or convenient to deliver the water from CITY'S existing facilities to the point of delivery. NONPOTABLE WATER CUSTOMER not contiguous to City's existing facilities may be required to reimburse CITY for the cost of materials and labor necessary to provide piping from CITY'S existing system to NONPOTABLE WATER CUSTOMER'S nonpotable water system. These reimbursements for the costs of the connecting piping, if constructed by City, shall be made to CITY whether or not NONPOTABLE WATER CUSTOMER actually takes delivery of nonpotable water under this Contract. Title to the water delivered by CITY to NONPOTABLE WATER CUSTOMER shall change at the measuring device as provided by paragraph 6-3.5 of this Contract. 6-1.3. Point of Delivery and Pressure Water will be delivered at a flow rate and pressure as available from CITY'S system at the meter located at the point of delivery. No guarantees of minimum flows or pressures are made or implied. 4 6-1.4. Metering Equipment CITY will be responsible for the installation and maintenance of the necessary metering equipment, and required devices of standard type for properly measuring the quantity of water delivered to NONPOTABLE WATER CUSTOMER and calibration of such metering equipment within a reasonable time if requested by NONPOTABLE WATER CUSTOMER, but not less frequently than once every twelve (12) months, or more frequently than once every three (3) months. NONPOTABLE WATER CUSTOMER shall provide an all- weather access to the metering facilities for the City's use in the installation and maintenance activities. A meter registering not more than three percent accuracy expected from a propeller meter above or below the test result shall be deemed to be accurate. The previous readings of any meter disclosed by test to be inaccurate shall be corrected in accordance with the percentage of inaccuracy found by such tests for a period extending back one-half (112) 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 the reading thereof, the water delivered during the period such meter is out of service or out of repair shall be estimated upon the basis of the best data available. The metering equipment register shall be read by CITY at least once a month. Metering equipment, valves, and other appurtenances associated with the metering installation shall remain the property of CITY. 3 6-1.5. Billing Procedure A monthly statement of the amount of water determined to be consumed by NONPOTABLE WATER CUSTOMER through the meter described in Section 6-1.2 of this Contract during the preceding month shall be mailed to NONPOTABLE WATER CUSTOMER. All statements for water so consumed shall be due and payable fifteen (15) days after the issuance of said statement. A late payment charge of five percent (5%) shall be charged to NONPOTABLE WATER CUSTOMER if said customer fails to pay its bill on or before thirty (30) days from date of issuance. In the event NONPOTABLE WATER CUSTOMER fails to pay its statement in full on or before the expiration of thirty (30) days from the date of issuance of said statement than in such event interest shall be added to said statement at the maximum lawful rate of interest on prejudgment debts in the State of Texas from such date aforementioned until said statement is paid in full. If payment is not received by CITY within thirty (30) days after the due date, the statement shall be deemed delinquent. CITY shall notify NONPOTABLE WATER CUSTOMER in writing when any such payment shall become delinquent, and if such delinquency is not removed within thirty (30) days after the sending of such written notice, CITY may, at its discretion, cease supplying water to NONPOTABLE WATER CUSTOMER under the terms of this Contract. After water has ceased to be supplied, CITY may, at its discretion, notify NONPOTABLE WATER CUSTOMER of its intention to declare this Contract forfeited and null and void. Upon such notice, NONPOTABLE WATER CUSTOMER shall have thirty (30) days to pay all delinquent charges, reconnect charges, and penalties in order to 6 reinstate water supplies prior to final action by CITY declaring this Contract forfeited and null and void. 6-2. Conditions of Service NONPOTABLE WATER CUSTOMER shall comply with continuing conditions of receiving service as follows: 6-2.1. NONPOTABLE WATER CUSTOMER's Facilities NONPOTABLE WATER CUSTOMER agrees and understands that it will install and maintain at its sole expense all facilities necessary for NONPOTABLE WATER CUSTOMER to operate its water system from the point of delivery as described in this Contract and that CITY of Lubbock shall be under no obligation whatsoever to bear any of said expenses aforementioned. After installation of the meter facilities by CITY, NONPOTABLE WATER CUSTOMER shall not alter, modify, or improve the meter facilities under any circumstances. 6-2.2. Rates and Payment Date Pay to CITY no later than the due date specified in the statement for water delivered pursuant to the terms of this Contract those charges for nonpotable water as set forth within said statement. The charges for nonpotable water shall be established by CITY. The rates for the water service may be, from time to time, modified or amended and in the event of such modification or amendment the reference to charges for nonpotable water shall be construed so as to apply to the last modification or amendment. By execution of this Contract, NONPOTABLE WATER CUSTOMER stipulates that the methodology relied on by CITY in establishing the rate for nonpotable water is reasonable and fair. In 7 the event CITY deems it necessary to adjust or modify the rate for nonpotable water delivered pursuant to this Contract, CITY shall furnish NONPOTABLE WATER CUSTOMER with a revised rate not less than sixty (60) days prior to the effective date thereof. NONPOTABLE WATER CUSTOMER shall have the option of accepting the revised rate or terminating water deliveries under this Contract. The rates charged do not imply or include service by CITY beyond CITY'S point of delivery; it being the intent of this Contract that all expenses on NONPOTABLE WATER CUSTOMER'S side of the point of delivery as defined in this Contract shall be the sole expense of NONPOTABLE WATER CUSTOMER. NONPOTABLE WATER CUSTOMER shall pay CITY a charge of $0.50 per inch per acre per year to furnish nonpotable water to NONPOTABLE WATER CUSTOMER. 6-2.3. Access to Facilities NONPOTABLE WATER CUSTOMER shall acquire, at its expense, all easements, approvals, facilities required between public easements or rights -of -way and the measuring device and NONPOTABLE WATER CUSTOMER'S system. 6-2.4. Right of Entry CITY, its agents, employees and contractors, are hereby authorized to enter upon NONPOTABLE WATER CUSTOMER'S property where NONPOTABLE WATER CUSTOMER'S wells are located for the purpose of obtaining water samples and performing tests to determine compliance with applicable state and federal rules and regulations. The entry, sampling, and testing shall be performed at reasonable times, with three (3) days advance notice to NONPOTABLE,WATER CUSTOMER. NONPOTABLE WATER CUSTOMER may have a 8 representative present during any entry upon the property. CITY'S entry upon the property and its sampling and testing shall be performed so as to prevent damage to property and interference with NONPOTABLE WATER CUSTOMER'S agricultural operations. 6-3. Mutual Conditions 6-3.1. Failure to Deliver CITY does not warrant that the services provided for in this Contract will be free from interruption or stoppage caused by maintenance, repair, substitution, renewal, replacement or improvement of any of the equipment involved in the furnishing of any such services or caused by the changes of services, alterations, strikes, lockouts, labor controversies, accidents, or acts of God, the elements, or any other cause beyond the reasonable control of CITY. In the event of a shortage of nonpotable water, or if distribution of nonpotable water by CITY to NONPOTABLE WATER CUSTOMERS is deemed inappropriate by any regulatory agency or law, the supply of nonpotable water to NONPOTABLE WATER CUSTOMER under this Contract shall be reduced or ceased as deemed necessary by CITY to protect its own interests and comply with all rules and regulations of any regulatory agency having jurisdiction of the operation. 6-3.2. Regulatory Agencies This Contract is subject to such rules and regulations as may now exist and as may be adopted by CITY of Lubbock, to comply with the Texas Water Commission, the Texas State Department of Health and other local, State 9 and Federal governmental agencies, and CITY and NONPOTABLE WATER CUSTOMER will collaborate in obtaining such permits and certificates as may be required to comply therewith. 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 this Contract in any forum having jurisdiction, and NONPOTABLE WATER CUSTOMER and CITY 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. 6-3.3. Miscellaneous Conditions All the situations, promises, undertakings and Contracts herein contained by or on behalf of either CITY or NONPOTABLE WATER CUSTOMER shall bind the successors and assigns of either party, whether so expressed or not; but neither CITY nor NONPOTABLE WATER CUSTOMER shall have the right to assign this Contract, or any part thereof except as hereinafter provided without the written consent of the other party. Either party may waive any default on the part of the opposite party affecting any other provision of the Contract, but a waiver of any one default shall not be deemed a waiver of any other or subsequent default or defaults. No delay by either party in enforcing any of its rights under this Contract shall be deemed a waiver of such rights. CITY and CITY'S agents have made no representation or promises with respect to 10 the nonpotable water supply or services except as herein expressly set forth, and no rights, easements, entitlements, or licenses are acquired by NONPOTABLE WATER CUSTOMER by implication or otherwise except as expressly set forth in this Contract. 6-3.4. Notice of Violation In the event that either CITY or NONPOTABLE WATER CUSTOMER should violate any of the terms of Paragraph 6, hereof, the other party shall promptly notify the other respective party of the violation. Unless this Contract provides otherwise, in the event said violation is not cured within thirty (30) days after the sending of such notice, the party sending the notice may at its discretion notify the other party of its intention to declare this Contract forfeited and null and void. Except as otherwise provided by this Contract, upon receiving such notice the delinquent party shall have thirty (30) days to cure said violation prior to final action by the other party declaring this Contract forfeiting and null and void. Any notice required under the terms of this Contract shall be in writing and shall be delivered by certified mail, addressed to CITY or NONPOTABLE WATER CUSTOMER. If the default cannot be cured within the thirty (30) day period, the length of the period shall be extended for a reasonable period of time, if the delinquent party commences curing the violation within the thirty day period and continues the curing of the violation with due diligence and continuity. 11 6-3.5. Title Title to all nonpotable water supplied hereunder shall be in CITY up to the point of delivery, at which point title shall pass to NONPOTABLE WATER CUSTOMER. Each of the parties hereto hereby agrees to save and hold each other party hereto harmless from all claims, demands, and causes of action which may be asserted by anyone on account of the transportation and delivery of said nonpotable water while title remains in such party. 6-4. Term of Contract The term of this Contract shall be a period of one (1) year from its effective date. NONPOTABLE WATER CUSTOMER is given an option and contract for a like period provided that at least twelve (12) months prior to the expiration of the initial term of this Contract, CITY and NONPOTABLE WATER CUSTOMER, in good faith begin to negotiate another contract pertaining to purchase of nonpotable water from CITY by NONPOTABLE WATER CUSTOMER containing mutually agreeable terms, and conditions. If another contract is not consummated, CITY shall have the option to terminate service to NONPOTABLE WATER CUSTOMER. 7. WAIVER No failure on the part of CITY at any time to require the performance by NONPOTABLE WATER CUSTOMER of any portion of this Contract shall in any way affect CITY'S right to enforce such provision or any other provision. Nor shall any waiver by CITY of any provision hereof be taken or held to be a waiver of any other provision hereof or any other 12 breach hereof. No rights under this Contract may be waived and no modification or amendment to this Contract may be made except by written amendment executed by the parties. No officer or agent of NONPOTABLE WATER CUSTOMER or CITY is authorized to waive or modify any provision of the Contract. No modifications to or rescission of this Contract may be made except by a written document signed by CITY'S and NONPOTABLE WATER CUSTOMER'S authorized representatives. 8. HEADINGS All headings in this Contract have been inserted for convenient reference only and shall not in any manner be construed as modifying, amending, or affecting in any way the express terms and provision hereof. 9. APPLICABLE LAW This Contract shall be construed under the laws of the State of Texas and all obligations of the parties hereunder are performable in Lubbock County, Texas. 10. EFFECTIVE DATE This Contract shall be effective and binding between the parties hereto on date of execution by both parties. NONPOTABLE WATER CUSTOMER hereby binds itself, its successors, assigns and representatives for the faithful and full performance of the terms and provisions of this Contract. 13 EXECUTED as of the day of 4- 19 f ��•WIL�� NAME r �4�;�PRY PUB•'9�'cI+ NONPOTABLE WATER CUS OMER (JZ V'•?F OF Is BY: ATT MAILING ADDRESS for notice: ACCEPTED AND EXECUTED as of the 9th day of May , 1991. ATTEST: a� ane to Boyd, City Secretary APPROVED AS TO FORM: C- C;�'4 Jbhn C. Ro—ss—,--J—r., City Attorney MAILING ADDRESS for notice: City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 ATTN: Dan A. Hawkins, P.E. Director of Water Utilities THE CITY OF LUBBOCK McMIUN, MAYOR APM =TOCONTEW: Dar A. Hawldns, D' ector of Water Utilities Operations 14 NON1'6TABLE WATER CONTRACT �•3�) (j j7 �.; �`ip,.��,�r�c. • �1 / j / / ATTACHMENT A 1 ! ' ' / Earl Foerester _ IND Old Iy ��` �� er JJ • CC i�sr. rs si iaia.��cr+r. _00 !■. {{�'����; i`ri .. ..� N• �' • .irs /f I �■WIIii1 �Y Yfl i ri'/ � \� t •' / : i (/ • 10 :- - ri vp Ij # �' R�Q iC ► 7 rilllli ��/�irrfifiiN� i� � �, �........!:..i •t�/ �. , •..:jam• •�:f!.,.' Resolution No.3610 May 9, 1991 Item #19 STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK § This Contract is made by and between CITY of Lubbock (herein called "CITY"), a municipal corporation located in Lubbock County, acting by and through its undersigned duly authorized mayor as authorized by specific action of its City Council; and R�(Cja� (herein called "NONPOTABLE WATER CUSTOMER"), acting as an independent entity. 1. RECITALS 1-1. This Contract is made to provide access to CITY'S existing nonpotable water system and to define the terms and conditions under which CITY will provide nonpotable water for NONPOTABLE WATER CUSTOMER'S water system to make said nonpotable water available for nonhuman consumption purposes only on property located near the City of Lubbock's Land Application Site as shown on Attachment "A", and as of llq , 19V. 1-2. This Contract is entered into as the result of a request from NONPOTABLE WATER CUSTOMER to receive said nonpotable water from CITY'S system. For and in consideration of the mutual agreement, covenants, obligations, and benefits of this Contract, CITY and NONPOTABLE WATER CUSTOMER contract and agree as follows: 2. DEFINITIONS All words and phrases used in this Contract shall be construed in accordance with their definitions as are contained herein. 1 3. NONPOTABLE WATER CUSTOMER APPLIES FOR WATER SERVICE NONPOTABLE WATER CUSTOMER makes application to CITY that it furnish nonpotable water service by providing access to its existing nonpotable water system. NONPOTABLE WATER CUSTOMER'S nonpotable water system located near CITY'S Land Application Site is that property described in Attachment A of this Contract. 4. TERMS, PROVISIONS AND CONSIDERATIONS CITY will furnish such service and will perform as required by the terms of this Contract in consideration of the- commitments made by 1. NONPOTABLE WATER CUSTOMER to CITY and to each other under the terms of this Contract, provided however, the obligation of CITY to provide service is conditioned upon compliance by NONPOTABLE WATER CUSTOMER with all present and future requirements of the U. S. E. P. A., the Texas Water Commission, the Texas Department of Health, and other present and future agencies having jurisdiction over ground water and nonpotable water, and upon the availability of nonpotable water for distribution to NONPOTABLE WATER CUSTOMERS as determined by the CITY. And the Parties agree to additional terms and conditions as follows: 5. CITY'S CODE OF ORDINANCES PART OF CONTRACT CITY'S Code of Ordinances and amendments thereto on file at the office of CITY'S city secretary are made a part hereof. 6. CITY SHALL FURNISH CERTAIN WATER SYSTEM FACILITIES AND NONPOTABLE WATER CUSTOMER SHALL COMPLY WITH CERTAIN CONDITIONS OF SERVICE: MUTUAL CONDITIONS: TERM 6-1. CITY Shall Furnish Facilities CITY shall furnish its existing nonpotable water system facilities and construct a water tap and metering facilities as are necessary to provide nonpotable water service to NONPOTABLE WATER CUSTOMER'S nonpotable water system for the property described in Exhibit "A" under such conditions as are provided as follows: 6-1.1. Quality and Treatment Nonpotable water is of similar quality as supplied to CITY of Lubbock for irrigation purposes. Nonpotable water does not receive treatment and, therefore, no guarantees concerning the quality thereof are made or implied. Nonpotable water shall be received by NONPOTABLE WATER CUSTOMER on an AS IS basis. CITY may furnish such supply out of various ground water wells at its sole discretion. 6-1.2. Quantity Quantities of nonpotable water shall be delivered as available from CITY'S system. The availability of nonpotable water shall be determined solely by the CITY. No guarantees of quantity, availability, or delivery times and dates are made or implied. All nonpotable water quantities provided shall be measured at the point of delivery. The point of delivery will be at a measuring device located within 100 feet of a connection to NONPOTABLE WATER CUSTOMER'S nonpotable water system. 3 The measuring device shall be located in an area reasonably accessible by CITY at all times. CITY shall install a metering station at the point of delivery and at its option may include in such metering station the following devices: (1) control the rate of flow; (2) measure the instantaneous flow of gallons per day; (3) measure peak hourly flow during the day of maximum flow in gallons per day; (4) measure the cumulative volume of water taken; and (5) control changes in the rate of flow, said devices being operable by CITY at the metering station and remotely from within CITY. Deliveries shall be contingent upon completion of facilities necessary or convenient to deliver the water from CITY'S existing facilities to the point of delivery. NONPOTABLE WATER CUSTOMER not contiguous to City's existing facilities may be required to reimburse CITY for the cost of materials and labor necessary to provide piping from CITY'S existing system to NONPOTABLE WATER CUSTOMER'S nonpotable water system. These reimbursements for the costs of the connecting piping, if constructed by City, shall be made to CITY whether or not NONPOTABLE WATER CUSTOMER actually takes delivery of nonpotable water under this Contract. Title to the water delivered by CITY to NONPOTABLE WATER CUSTOMER shall change at the measuring device as provided by paragraph 6-3.5 of this Contract. 6-1.3. Point of Delivery and Pressure Water will be delivered at a flow rate and pressure as available from CITY'S system at the meter located at the point of delivery. No guarantees of minimum flows or pressures are made or implied. 4 6-1.4. Metering Equipment CITY will be responsible for the installation and maintenance of the necessary metering equipment, and required devices of standard type for properly measuring the quantity of water delivered to NONPOTABLE WATER CUSTOMER and calibration of such metering equipment within a reasonable time if requested by NONPOTABLE WATER CUSTOMER, but not less frequently than once every twelve (12) months, or more frequently than once every three (3) months. NONPOTABLE WATER CUSTOMER shall provide an all- weather access to the metering facilities for the City's use in the installation and maintenance activities. A meter registering not more than three percent accuracy expected from a propeller meter above or below the test result shall be deemed to be accurate. The previous readings of any meter disclosed by test to be inaccurate 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 the reading thereof, the water delivered during the period such meter is out of service or out of repair shall be estimated upon the basis of the best data available. The metering equipment register shall be read by CITY at least once a month. Metering equipment, valves, and other appurtenances associated with the metering installation shall remain the property of CITY. 6-1.5. Billing Procedure A monthly statement of the amount of water determined to be consumed by NONPOTABLE WATER CUSTOMER through the meter described in Section 6-1.2 of this Contract during the preceding month shall be mailed to NONPOTABLE WATER CUSTOMER. All statements for water so consumed shall be due and payable fifteen (15) days after the issuance of said statement. A late payment charge of five percent (5%) shall be charged to NONPOTABLE WATER CUSTOMER if said customer fails to pay its bill on or before thirty (30) days from date of issuance. In the event NONPOTABLE WATER CUSTOMER fails to pay its statement in full on or before the expiration of thirty (30) days from the date of issuance of said statement than in such event interest shall be added to said statement at the maximum lawful rate of interest on prejudgment debts in the State of Texas from such date aforementioned until said statement is paid in full. If payment is not received by CITY within thirty (30) days after the due date, the statement shall be deemed delinquent. CITY shall notify NONPOTABLE WATER CUSTOMER in writing when any such payment shall become delinquent, and if such delinquency is not removed within thirty (30) days after the sending of such written notice, CITY may, at its discretion, cease supplying water to NONPOTABLE WATER CUSTOMER under the terms of this Contract. After water has ceased to be supplied, CITY may, at its discretion, notify NONPOTABLE WATER CUSTOMER of its intention to declare this Contract forfeited and null and void. Upon such notice, NONPOTABLE WATER CUSTOMER shall have thirty (30) days to pay all delinquent charges, reconnect charges, and penalties in order to 6 reinstate water supplies prior to final action by CITY declaring this Contract forfeited and null and void. 6-2. Conditions of Service NONPOTABLE WATER CUSTOMER shall comply with continuing conditions of receiving service as follows: 6-2.1. NONPOTABLE WATER CUSTOMER's Facilities NONPOTABLE WATER CUSTOMER agrees and understands that it will install and maintain at its sole expense all facilities necessary for NONPOTABLE WATER CUSTOMER to operate its water system from the point of delivery as described in this Contract and that CITY of Lubbock shall be under no obligation whatsoever to bear any of said expenses aforementioned. After installation of the meter facilities by CITY, NONPOTABLE WATER CUSTOMER shall not alter, modify, or improve the meter facilities under any circumstances. 6-2.2. Rates and Payment Date Pay to CITY no later than the due date specified in the statement for water delivered pursuant to the terms of this Contract those charges for nonpotable water as set forth within said statement. The charges for nonpotable water shall be established by CITY. The rates for the water service may be, from time to time, modified or amended and in the event of such modification or amendment the reference to charges for nonpotable water shall be construed so as to apply to the last modification or amendment. By execution of this Contract, NONPOTABLE WATER CUSTOMER stipulates that the methodology relied on by CITY in establishing the rate for nonpotable water is reasonable and fair. In 7 the event CITY deems it necessary to adjust or modify the rate for nonpotable water delivered pursuant to this Contract, CITY shall furnish NONPOTABLE WATER CUSTOMER with a revised rate not less than sixty (60) days prior to the effective date thereof. NONPOTABLE WATER CUSTOMER shall have the option of accepting the revised rate or terminating water deliveries under this Contract. The rates charged do not imply or include service by CITY beyond CITY'S point of delivery; it being the intent of this Contract that all expenses on NONPOTABLE WATER CUSTOMER'S side of the point of delivery as defined in this Contract shall be the sole expense of NONPOTABLE WATER CUSTOMER. NONPOTABLE WATER CUSTOMER shall pay CITY a charge of $0.50 per inch per acre per year to furnish nonpotable water to NONPOTABLE WATER CUSTOMER. 6-2.3. Access to Facilities NONPOTABLE WATER CUSTOMER shall acquire, at its expense, all easements, approvals, facilities required between public easements or rights -of -way and the measuring device and NONPOTABLE WATER CUSTOMER'S system. 6-2.4. Right of Entry CITY, its agents, employees and contractors, are hereby authorized to enter upon NONPOTABLE WATER CUSTOMER'S property where NONPOTABLE WATER CUSTOMER'S wells are located for the purpose of obtaining water samples and performing tests to determine compliance with applicable state and federal rules and regulations. The entry, sampling, and testing shall be performed at reasonable times, with three (3) days advance notice to NONPOTABLE WATER CUSTOMER. NONPOTABLE WATER CUSTOMER may have a 8 representative present during any entry upon the property. CITY'S entry upon the property and its sampling and testing shall be performed so as to prevent damage to property and interference with NONPOTABLE WATER CUSTOMER'S agricultural operations. 6-3. Mutual Conditions 6-3.1. Failure to Deliver CITY does not warrant that the services provided for in this Contract will be free from interruption or stoppage caused by maintenance, repair, substitution, renewal, replacement or improvement of any of the equipment involved in the furnishing of any such services or caused by the changes of services, alterations, strikes, lockouts, labor controversies, accidents, or acts of God, the elements, or any other cause beyond the reasonable control of CITY. In the event of a shortage of nonpotable water, or if distribution of nonpotable water by CITY to NONPOTABLE WATER CUSTOMERS is deemed inappropriate by any regulatory agency or law, the supply of nonpotable water to NONPOTABLE WATER CUSTOMER under this Contract shall be reduced or ceased as deemed necessary by CITY to protect its own interests and comply with all rules and regulations of any regulatory agency having jurisdiction of the operation. 6-3.2. Regulatory Agencies This Contract is subject to such rules and regulations as may now exist and as may be adopted by CITY of Lubbock, to comply with the Texas Water Commission, the Texas State Department of Health and other local, State 9 and Federal governmental agencies, and CITY and NONPOTABLE WATER CUSTOMER will collaborate in obtaining such permits and certificates as may be required to comply therewith. 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 this Contract in any forum having jurisdiction, and NONPOTABLE WATER CUSTOMER and CITY 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. 6-3.3. Miscellaneous Conditions All the situations, promises, undertakings and Contracts herein contained by or on behalf of either CITY or NONPOTABLE WATER CUSTOMER shall bind the successors and assigns of either party, whether so expressed or not; but neither CITY nor NONPOTABLE WATER CUSTOMER shall have the right to assign this Contract, or any part thereof except as hereinafter provided without the written consent of the other party. Either party may waive any default on the part of the opposite party affecting any other provision of the Contract, but a waiver of any one default shall not be deemed a waiver of any other or subsequent default or defaults. No delay by either party in enforcing any of its rights under this Contract shall be deemed a waiver of such rights. CITY and CITY'S agents have made no representation or promises with respect to 10 the nonpotable water supply or services except as herein expressly set forth, and no rights, easements, entitlements, or licenses are acquired by NONPOTABLE WATER CUSTOMER by implication or otherwise except as expressly set forth in this Contract. 6-3.4. Notice of Violation In the event that either CITY or NONPOTABLE WATER CUSTOMER should violate any of the terms of Paragraph 6, hereof, the other party shall promptly notify the other respective party of the violation. Unless this Contract provides otherwise, in the event said violation is not cured within thirty (30) days after the sending of such notice, the party sending the notice may at its discretion notify the other party of its intention to declare this Contract forfeited and null and void. Except as otherwise provided by this Contract, upon receiving such notice the delinquent party shall have thirty (30) days to cure said violation prior to final action by the other party declaring this Contract forfeiting and null and void. Any notice required under the terms of this Contract shall be in writing and shall be delivered by certified mail, addressed to CITY or NONPOTABLE WATER CUSTOMER. If the default cannot be cured within the thirty (30) day period, the length of the period shall be extended for a reasonable period of time, if the delinquent party commences curing the violation within the thirty day period and continues the curing of the violation with due diligence and continuity. 11 6-3.5. Title Title to all nonpotable water supplied hereunder shall be in CITY up to the point of delivery, at which point title shall pass to NONPOTABLE WATER CUSTOMER. Each of the parties hereto hereby agrees to save and hold each other party hereto harmless from all claims, demands, and causes of action which may be asserted by anyone on account of the transportation and delivery of said nonpotable water while title remains in such party. 6-4. Term of Contract The term of this Contract shall be a period of one (1) year from its effective date. NONPOTABLE WATER CUSTOMER is given an option and contract for a like period provided that at least twelve (12) months prior to the expiration of the initial term of this Contract, CITY and NONPOTABLE WATER CUSTOMER, in good faith begin to negotiate another contract pertaining to purchase of nonpotable water from CITY by NONPOTABLE WATER CUSTOMER containing mutually agreeable terms, and conditions. If another contract is not consummated, CITY shall have the option to terminate service to NONPOTABLE WATER CUSTOMER. 7. WAIVER No failure on the part of CITY at any time to require the performance by NONPOTABLE WATER CUSTOMER of any portion of this Contract shall in any way affect CITY'S right to enforce such provision or any other provision. Nor shall any waiver by CITY of any provision hereof be taken or held to be a waiver of any other provision hereof or any other 12 breach hereof. No rights under this Contract may be waived and no modification or amendment to this Contract may be made except by written amendment executed by the parties. No officer or agent of NONPOTABLE WATER CUSTOMER or CITY is authorized to waive or modify any provision of the Contract. No modifications to or rescission of this Contract may be made except by a written document signed by CITY'S and NONPOTABLE WATER CUSTOMER'S authorized representatives. 8. HEADINGS All headings in this Contract have been inserted for convenient reference only and shall not in any manner be construed as modifying, amending, or affecting in any way the express terms and provision hereof. 9. APPLICABLE LAW This Contract shall be construed under the laws of the State of Texas and all obligations of the parties hereunder are performable in Lubbock County, Texas. 10. EFFECTIVE DATE This Contract shall be effective and binding between the parties hereto on date of execution by both parties. NONPOTABLE WATER CUSTOMER hereby binds itself, its successors, assigns and representatives for the faithful and full performance of the terms and provisions of this Contract. 13 � 6�4EXECUTED as of the - day of , 19j1 NAME NONPOTABLE WATER CUSTOMER BY: -ATTES :..MAILING ADDRESS for notice: ACCEPTED AND EXECUTED as of the 9th day of May , 1991. THE CITY OF LUBBOCK BY• (f, C /B. C. McMIffffT, MAYOR ATTEST: ane t�oy �CityS�ecrar APPROVED AS TO FORM: AS To CONTENT, c n C. Ross, r., City Attorney . Hawkins, MAILING ADDRESS for notice: D' ctor of water Utilities operations City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 ATTN: Dan A. Hawkins, P.E. Director of Water Utilities 14 No Text Resolution No. 3610 May 9, 1991 Item #19 STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK § This Contract is made by and between CITY of Lubbock (herein called "CITY"), a municipal corporation located in Lubbock County, acting by and through its undersigned dullauthoyized mayor as authorized by specific action of its City Q V Council; and , (herein called "NONPOTABLE WATER CUSTOMER"), acting as an independent entity. 1. RECITALS 1-1. This Contract is made to provide access to CITY'S existing nonpotable water system and to define the terms and conditions under which CITY s will provide nonpotable water for NONPOTABLE WATER CUSTOMER'S water system to make said nonpotable water available for nonhuman consumption purposes only on property located near the City of Lubbock's Land Application Site as shown on Attachment "A", and as of , 191. 1-2. This Contract is entered into as the result of a request from NONPOTABLE WATER CUSTOMER to receive said nonpotable water from CITY'S system. For and in consideration of the mutual agreement, covenants, obligations, and benefits of this Contract, CITY and NONPOTABLE WATER CUSTOMER contract and agree as follows: 2. DEFINITIONS All words and phrases used in this Contract shall be construed in accordance with their definitions as are contained herein. 1 3. NONPOTABLE WATER CUSTOMER APPLIES FOR WATER SERVICE NONPOTABLE WATER CUSTOMER makes application to CITY that it furnish nonpotable water service by providing access to its existing nonpotable water system. NONPOTABLE WATER CUSTOMER'S nonpotable water system located near CITY'S Land Application Site is that property described in Attachment A of this Contract. 4. TERMS, PROVISIONS AND CONSIDERATIONS CITY will furnish such service and will perform as required by the terms of this Contract in consideration of the commitments made by NONPOTABLE WATER CUSTOMER to CITY and to each other under the terms of this Contract, provided however, the obligation of CITY to provide service is conditioned upon compliance by NONPOTABLE WATER CUSTOMER with all present and future requirements of the U. S. E. P. A., the Texas Water Commission, the Texas Department of Health, and other present and future agencies having jurisdiction over ground water and nonpotable water, and upon the availability of nonpotable water for distribution to NONPOTABLE WATER CUSTOMERS as determined by the CITY. And the Parties agree to additional terms and conditions as follows: 5. CITY'S CODE OF ORDINANCES PART OF CONTRACT CITY'S Code of Ordinances and amendments thereto on file at the office of CITY'S city secretary are made a part hereof. 6. CITY SHALL FURNISH CERTAIN WATER SYSTEM FACILITIES AND NONPOTABLE WATER CUSTOMER SHALL COMPLY WITH CERTAIN CONDITIONS OF SERVICE: MUTUAL CONDITIONS: TERM 6-1. CITY Shall Furnish Facilities CITY shall furnish its existing nonpotable water system facilities and construct a water tap and metering facilities as are necessary to provide nonpotable water service to NONPOTABLE WATER CUSTOMER'S nonpotable water system for the property described in Exhibit "A" under such conditions as are provided as follows: 6-1.1. Quality and Treatment Nonpotable water is of similar quality as supplied to CITY of Lubbock for irrigation purposes. Nonpotable water does not receive treatment and, therefore, no guarantees concerning the quality thereof are made or implied. Nonpotable water shall be received by NONPOTABLE WATER CUSTOMER on an AS IS basis. CITY may furnish such supply out of various ground water wells at its sole discretion. 6-1.2. Ouantity Quantities of nonpotable water shall be delivered as available from CITY'S system. The availability of nonpotable water shall be determined solely by the CITY. No guarantees of quantity, availability, or delivery times and dates are made or implied. All nonpotable water quantities provided shall be measured at the point of delivery. The point of delivery will be at a measuring device located within 100 feet of a connection to NONPOTABLE WATER CUSTOMER'S nonpotable water system. 3 The measuring device shall be located in an area reasonably accessible by CITY at all times. CITY shall install a metering station at the point of delivery and at its option may include in such metering station the following devices: (1) control the rate of flow; (2) measure the instantaneous flow of gallons per day; (3) measure peak hourly flow during the day of maximum flow in gallons per day; (4) measure the cumulative volume of water taken; and (5) control changes in the rate of flow, said devices being operable by CITY at the metering station and remotely from within CITY. Deliveries shall be contingent upon completion of facilities necessary or convenient to deliver the water from CITY'S existing facilities to the point of delivery. NONPOTABLE WATER CUSTOMER not contiguous to City's existing facilities may be required to reimburse CITY for the cost of materials and labor necessary to provide piping from CITY'S existing system to NONPOTABLE WATER CUSTOMER'S nonpotable water system. These reimbursements for the costs of the connecting piping, if constructed by City, shall be made to CITY whether or not NONPOTABLE WATER CUSTOMER actually takes delivery of nonpotable water under this Contract. Title to the water delivered by CITY to NONPOTABLE WATER CUSTOMER shall change at the measuring device as provided by paragraph 6-3.5 of this Contract. 6-1.3. Point of Delivery and Pressure Water will be delivered at a flow rate and pressure as available from CITY'S system at the meter located at the point of delivery. No guarantees of minimum flows or pressures are made or implied. 4 6-1.4. Metering Equipment CITY will be responsible for the installation and maintenance of the necessary metering equipment, and required devices of standard type for properly measuring the quantity of water delivered to NONPOTABLE WATER CUSTOMER and calibration of such metering equipment within a reasonable time if requested by NONPOTABLE WATER CUSTOMER, but not less frequently than once every twelve (12) months, or more frequently than once every three (3) months. NONPOTABLE WATER CUSTOMER shall provide an all- weather access to the metering facilities for the City's use in the installation and maintenance activities. A meter registering not more than three percent accuracy expected from a propeller meter above or below the test result shall be deemed to be accurate. The previous readings of any meter disclosed by test to be inaccurate 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 the reading thereof, the water delivered during the period such meter is out of service or out of repair shall be estimated upon the basis of the best data available. The metering equipment register shall be read by CITY at least once a month. Metering equipment, valves, and other appurtenances associated with the metering installation shall remain the property of CITY. 3 6-1.5. Billing Procedure A monthly statement of the amount of water determined to be consumed by NONPOTABLE WATER CUSTOMER through the meter described in Section 6-1.2 of this Contract during the preceding month shall be mailed to NONPOTABLE WATER CUSTOMER. All statements for water so consumed shall be due and payable fifteen (15) days after the issuance of said statement. A late payment charge of five percent (5%) shall be charged to NONPOTABLE WATER CUSTOMER if said customer fails to pay its bill on or before thirty (30) days from date of issuance. In the event NONPOTABLE WATER CUSTOMER fails to pay its statement in full on or before the expiration of thirty (30) days from the date of issuance of said statement than in such event interest shall be added to said statement at the maximum lawful rate of interest on prejudgment debts in the State of Texas from such date aforementioned until said statement is paid in full. If payment is not received by CITY within thirty (30) days after the due date, the statement shall be deemed delinquent. CITY shall notify NONPOTABLE WATER CUSTOMER in writing when any such payment shall become delinquent, and if such delinquency is not removed within thirty (30) days after the sending of such written notice, CITY may, at its discretion, cease supplying water to NONPOTABLE WATER CUSTOMER under the terms of this Contract. After water has ceased to be supplied, CITY may, at its discretion, notify NONPOTABLE WATER CUSTOMER of its intention to declare this Contract forfeited and null and void. Upon such notice, NONPOTABLE WATER CUSTOMER shall have thirty (30) days to pay all delinquent charges, reconnect charges, and penalties in order to 6 reinstate water supplies prior to final action by CITY declaring this Contract forfeited and null and void. 6-2. Conditions of Service NONPOTABLE WATER CUSTOMER shall comply with continuing conditions of receiving service as follows: 6-2.1. NONPOTABLE WATER CUSTOMER's Facilities NONPOTABLE WATER CUSTOMER agrees and understands that it will install and maintain at its sole expense all facilities necessary for NONPOTABLE WATER CUSTOMER to operate its water system from the point of delivery as described in this Contract and that CITY of Lubbock shall be under no obligation whatsoever to bear any of said expenses aforementioned. After installation of the meter facilities by CITY, NONPOTABLE WATER CUSTOMER shall not alter, modify, or improve the meter facilities under any circumstances. 6-2.2. Rates and Payment Date Pay to CITY no later than the due date specified in the statement for water delivered pursuant to the terms of this Contract those charges for nonpotable water as set forth within said statement. The charges for nonpotable water shall be established by CITY. The rates for the water service may be, from time to time, modified or amended and in the event of such modification or amendment the reference to charges for nonpotable water shall be construed so as to apply to the last modification or amendment. By execution of this Contract, NONPOTABLE WATER CUSTOMER stipulates that the methodology relied on by CITY in establishing the rate for nonpotable water is reasonable and fair. In CI the event CITY deems it necessary to adjust or modify the rate for nonpotable water delivered pursuant to this Contract, CITY shall furnish NONPOTABLE WATER CUSTOMER with a revised rate not less than sixty (60) days prior to the effective date thereof. NONPOTABLE WATER CUSTOMER shall have the option of accepting the revised rate or terminating water deliveries under this Contract. The rates charged do not imply or include service by CITY beyond CITY'S point of delivery; it being the intent of this Contract that all expenses on NONPOTABLE WATER CUSTOMER'S side of the point of delivery as defined in this Contract shall be the sole expense of NONPOTABLE WATER CUSTOMER. NONPOTABLE WATER CUSTOMER shall pay CITY a charge of $0.50 per inch per acre per year to furnish nonpotable water to NONPOTABLE WATER CUSTOMER. 6-2.3. Access to Facilities NONPOTABLE WATER CUSTOMER shall acquire, at its expense, all easements, approvals, facilities required between public easements or rights -of -way and the measuring device and NONPOTABLE WATER CUSTOMER'S system. 6-2.4. Right of Entry CITY, its agents, employees and contractors, are hereby authorized to enter upon NONPOTABLE WATER CUSTOMER'S property where NONPOTABLE WATER CUSTOMER'S wells are located for the purpose of obtaining water samples and performing tests to determine compliance with applicable state and federal rules and regulations. The entry, sampling, and testing shall be performed at reasonable times, with three (3) days advance notice to NONPOTABLE WATER CUSTOMER. NONPOTABLE WATER CUSTOMER may have a 8 representative present during any entry upon the property. CITY'S entry upon the property and its sampling and testing shall be performed so as to prevent damage to property and interference with NONPOTABLE WATER CUSTOMER'S agricultural operations. 6-3. Mutual Conditions 6-3.1. Failure to Deliver CITY does not warrant that the services provided for in this Contract will be free from interruption or stoppage caused by maintenance, repair, substitution, renewal, replacement or improvement of any of the equipment involved in the furnishing of any such services or caused by the changes of services, alterations, strikes, lockouts, labor controversies, accidents, or acts of God, the elements, or any other cause beyond the reasonable control of CITY. In the event of a shortage of nonpotable water, or if distribution of nonpotable water by CITY to NONPOTABLE WATER CUSTOMERS is deemed inappropriate by any regulatory agency or law, the supply of nonpotable water to NONPOTABLE WATER CUSTOMER under this Contract shall be reduced or ceased as deemed necessary by CITY to protect its own interests and comply with all rules and regulations of any regulatory agency having jurisdiction of the operation. 6-3.2. Regulatory Agencies This Contract is subject to such rules and regulations as may now exist and as may be adopted by CITY of Lubbock, to comply with the Texas Water Commission, the Texas State Department of Health and other local, State 9 and Federal governmental agencies, and CITY and NONPOTABLE WATER CUSTOMER will collaborate in obtaining such permits and certificates as may be required to comply therewith. 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 this Contract in any forum having jurisdiction, and NONPOTABLE WATER CUSTOMER and CITY 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. 6-3.3. Miscellaneous Conditions All the situations, promises, undertakings and Contracts herein contained by or on behalf of either CITY or NONPOTABLE WATER CUSTOMER shall bind the successors and assigns of either party, whether so expressed or not; but neither CITY nor NONPOTABLE WATER CUSTOMER shall have the right to assign this Contract, or any part thereof except as hereinafter provided without the written consent of the other party. Either party may waive any default on the part of the opposite party affecting any other provision of the Contract, but a waiver of any one default shall not be deemed a waiver of any other or subsequent default or defaults. No delay by either party in enforcing any of its rights under this Contract shall be deemed a waiver of such rights. CITY and CITY'S agents have made no representation or promises with respect to 10 the nonpotable water supply or services except as herein expressly set forth, and no rights, easements, entitlements, or licenses are acquired by NONPOTABLE WATER CUSTOMER by implication or otherwise except as expressly set forth in this Contract. 6-3.4. Notice of Violation In the event that either CITY or NONPOTABLE WATER CUSTOMER should violate any of the terms of Paragraph 6, hereof, the other party shall promptly notify the other respective party of the violation. Unless this Contract provides otherwise, in the event said violation is not cured within thirty (30) days after the sending of such notice, the party sending the notice may at its discretion notify the other party of its intention to declare this Contract forfeited and null and void. Except as otherwise provided by this Contract, upon receiving such notice the delinquent party shall have thirty (30) days to cure said violation prior to final action by the other party declaring this Contract forfeiting and null and void. Any notice required under the terms of this Contract shall be in writing and shall be delivered by certified mail, addressed to CITY or NONPOTABLE WATER CUSTOMER. If the default cannot be cured within the thirty (30) day period, the length of the period shall be extended for a reasonable period of time, if the delinquent party commences curing the violation within the thirty day period and continues the curing of the violation with due diligence and continuity. 11 6-3.5. Title Title to all nonpotable water supplied hereunder shall be in CITY up to the point of delivery, at which point title shall pass to NONPOTABLE WATER CUSTOMER. Each of the parties hereto hereby agrees to save and hold each other party hereto harmless from all claims, demands, and causes of action which may be asserted by anyone on account of the transportation and delivery of said nonpotable water while title remains in such party. 6-4. Term of Contract The term of this Contract shall be a period of one (1) year from its effective date. NONPOTABLE WATER CUSTOMER is given an option and contract for a like period provided that at least twelve (12) months prior to the expiration of the initial term of this Contract, CITY and NONPOTABLE WATER CUSTOMER, in good faith begin to negotiate another contract pertaining to purchase of nonpotable water from CITY by NONPOTABLE WATER CUSTOMER containing mutually agreeable terms, and conditions. If another contract is not consummated, CITY shall have the option to terminate service to NONPOTABLE WATER CUSTOMER. 7. WAIVER No failure on the part of CITY at any time to require the performance by NONPOTABLE WATER CUSTOMER of any portion of this Contract shall in any way affect CITY'S right to enforce such provision or any other provision. Nor shall any waiver by CITY of any provision hereof be taken or held to be a waiver of any other provision hereof or any other 12 breach hereof. No rights under this Contract may be waived and no modification or amendment to this Contract may be made except by written amendment executed by the parties. No officer or agent of NONPOTABLE WATER CUSTOMER or CITY is authorized to waive or modify 'any provision of the Contract. No modifications to or rescission of this Contract may be made except by a written document signed by CITY'S and NONPOTABLE WATER CUSTOMER'S authorized representatives. 8. HEADINGS All headings in this Contract have been inserted for convenient reference only and shall not in any manner be construed as modifying, amending, or affecting in any way the express terms and provision hereof. 9. APPLICABLE LAW This Contract shall be construed under the laws of the State of Texas and all obligations of the parties hereunder are performable in Lubbock County, Texas. 10. EFFECTIVE DATE This Contract shall be effective and binding between the parties hereto on date of execution by both parties. NONPOTABLE WATER CUSTOMER hereby binds itself, its successors, assigns and representatives for the faithful and full performance of the terms and provisions of this Contract. 13 EXECUTED as of the day of NAME - NONPOTABLE WATER CUSTOMER _ - B ATTEST MAILING ADDRESS for notice: ACCEPTED AND EXECUTED as of the 9th day of May , 1991. THE CITY OF� LUBBOCK BY: McMrNNMAYOR ATTEST: Rane to Boy City Secretary APPROVED AS TO FORM: AP VED pg CON: 4% G 0—, -� - r n C. Ross, Jr., City Attorney ' A. Hawkins, MAILING ADDRESS for notice: Dector of Water Utilities Operations City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 ATTN: Dan A. Hawkins, P.E. Director of Water Utilities 14 -iqt M �. a+� «. !C"� �`ja ' � :� ��--•y� 71-�` r ���t •.1`ir�.. r l �� � �'� 1"_ �.-���, iI ��^�.�",_�'..i�'� i •r*.. i n `v\ C+ a ."1►. ap y �� - y�<:= -^J, -ram __ r '' �� /_/ _� ✓�'� �I> >')i�l"� /� 4 `tee r-� 1 � �^.( 1' q .. i' "L�. 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L • w.e � �. 8 .�.a wwawaww�ulgl�wawd � 1 L7r� .�. � :1 sa. k `1 mr• � r. awwo.i+-wwwiwwwwwuw ._ --� wawwl _ f � .•.r � w ..+r • � a Q firer f I ti■ /Et ar r � OCO OZO —•---� ��Gajt s \ SW I,•��w•fo,• 1 \ �'...../ w•f\\\ i / / f^'� _ I .•a 98Z�ry ;E� i a•rq�'''I� i?t i .•a/ ,r •C•: .ti. •� • 1 rct ao ,\ f!•f It Resolution No. 3610 May 9, 1991 Item #19 STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK § This Contract is made by and between CITY of Lubbock (herein called "CITY"), a municipal corporation located in Lubbock County, acting by and through its undersigned duly authorized ayor as authorized by specific action of its City Council; and (herein called "NONPOTABLE WATER CUSTOMER"), acting as an independent entity. 1. RECITALS 1-1. This Contract is made to provide access to CITY'S existing nonpotable water system and to define the terms and conditions under which CITY will provide nonpotable water for NONPOTABLE WATER CUSTOMER'S water system to make said nonpotable water available for nonhuman consumption purposes only on property located near the City of Lubbock's Land Application Site as shown on Attachment "A", and as of 9 m, , 19w. 1-2. This Contract is entered into as the result of a request from NONPOTABLE WATER CUSTOMER to receive said nonpotable water from CITY'S system. For and in consideration of the mutual agreement, covenants, obligations, and benefits of this Contract, CITY and NONPOTABLE WATER CUSTOMER contract and agree as follows: 2. DEFINITIONS All words and phrases used in this Contract shall be construed in accordance with their definitions as are contained herein. 1 3. NONPOTABLE WATER CUSTOMER APPLIES FOR WATER SERVICE NONPOTABLE WATER CUSTOMER makes application to CITY that it furnish nonpotable water service by providing access to its existing nonpotable water system. NONPOTABLE WATER CUSTOMER'S nonpotable water system located near CITY'S Land Application Site is that property described in Attachment A of this Contract. 4. TERMS. PROVISIONS AND CONSIDERATIONS CITY will furnish such service and will perform as required by the terms of this Contract in consideration of the commitments made by NONPOTABLE WATER CUSTOMER to CITY and to each other under the terms of this Contract, provided however, the obligation of CITY to provide service is conditioned upon compliance by NONPOTABLE WATER CUSTOMER with all present and future requirements of the U. S. E. P. A., the Texas Water Commission, the Texas Department of Health, and other present and future agencies having jurisdiction over ground water and nonpotable water, and upon the availability of nonpotable water for distribution to NONPOTABLE WATER CUSTOMERS as determined by the CITY. And the Parties agree to additional terms and conditions as follows: 5. CITY'S CODE OF ORDINANCES PART OF CONTRACT CITY'S Code of Ordinances and amendments thereto on file at the office of CITY'S city secretary are made a part hereof. 6. CITY SHALL FURNISH CERTAIN WATER SYSTEM FACILITIES AND NONPOTABLE WATER CUSTOMER SHALL COMPLY WITH CERTAIN CONDITIONS OF SERVICE: MUTUAL CONDITIONS: TERM 6-1. CITY Shall Furnish Facilities CITY shall furnish its existing nonpotable water system facilities and construct a water tap and metering facilities as are necessary to provide nonpotable water service to NONPOTABLE WATER CUSTOMER'S nonpotable water system for the property described in Exhibit "A" under such conditions as are provided as follows: 6-1.1. Quality and Treatment Nonpotable water is of similar quality as supplied to CITY of Lubbock for irrigation purposes. Nonpotable water does not receive treatment and, therefore, no guarantees concerning the quality thereof are made or implied. Nonpotable water shall be received by NONPOTABLE WATER CUSTOMER on an AS IS basis. CITY may furnish such supply out of various ground water wells at its sole discretion. 6-1.2. Quantity Quantities of nonpotable water shall be delivered as available from CITY'S system. The availability of nonpotable water shall be determined solely by the CITY. No guarantees of quantity, availability, or delivery times and dates are made or implied. All nonpotable water quantities provided shall be measured at the point of delivery. The point of delivery will be at a measuring device located within 100 feet of a connection to NONPOTABLE WATER CUSTOMER'S nonpotable water system. 3 The measuring device shall be located in an area reasonably accessible by CITY at all times. CITY shall install a metering station at the point of delivery and at its option may include in such metering station the following devices: (1) control the rate of flow; (2) measure the instantaneous flow of gallons per day; (3) measure peak hourly flow during the day of maximum flow in gallons per day; (4) measure the cumulative volume of water taken; and (5) control changes in the rate of flow, said devices being operable by CITY at the metering station and remotely from within CITY. Deliveries shall be contingent upon completion of facilities necessary or convenient to deliver the water from CITY'S existing facilities to the point of delivery. NONPOTABLE WATER CUSTOMER not contiguous to City's existing facilities may be required to reimburse CITY for the cost of materials and labor necessary to provide piping from CITY'S existing system to NONPOTABLE WATER CUSTOMER'S nonpotable water system. These reimbursements for the costs of the connecting piping, if constructed by City, shall be made to CITY whether or not NONPOTABLE WATER CUSTOMER actually takes delivery of nonpotable water under this Contract. Title to the water delivered by CITY to NONPOTABLE WATER CUSTOMER shall change at the measuring device as provided by paragraph 6-3.5 of this Contract. 6-1.3. Point of Delivery and Pressure Water will be delivered at a flow rate and pressure as available from CITY'S system at the meter located at the point of delivery. No guarantees of minimum flows or pressures are made or implied. 4 6-1.4. Metering Equipment CITY will be responsible for the installation and maintenance of the necessary metering equipment, and required devices of standard type for properly measuring the quantity of water delivered to NONPOTABLE WATER CUSTOMER and calibration of such metering equipment within a reasonable time if requested by NONPOTABLE WATER CUSTOMER, but not less frequently than once every twelve (12) months, or more frequently than once every three (3) months. NONPOTABLE WATER CUSTOMER shall provide an all- weather access to the metering facilities for the City's use in the installation and maintenance activities. A meter registering not more than three percent accuracy expected from a propeller meter above or below the test result shall be deemed to be accurate. The previous readings of any meter disclosed by test to be inaccurate 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 the reading thereof, the water delivered during the period such meter is out of service or out of repair shall be estimated upon the basis of the best data available. The metering equipment register shall be read by CITY at least once a month. Metering equipment, valves, and other appurtenances associated with the metering installation shall remain the property of CITY. 5 6-1.5. Billing Procedure A monthly statement of the amount of water determined to be consumed by NONPOTABLE WATER CUSTOMER through the meter described in Section 6-1.2 of this Contract during the preceding month shall be mailed to NONPOTABLE WATER CUSTOMER. All statements for water so consumed shall be due and payable fifteen (15) days after the issuance of said statement. A late payment charge of five percent (5%) shall be charged to NONPOTABLE WATER CUSTOMER if said customer fails to pay its bill on or before thirty (30) days from date of issuance. In the event NONPOTABLE WATER CUSTOMER fails to pay its statement in full on or before the expiration of thirty (30) days from the date of issuance of said statement than in such event interest shall be added to said statement at the maximum lawful rate of interest on prejudgment debts in the State of Texas from such date aforementioned until said statement is paid in full. If payment is not received by CITY within thirty (30) days after the due date, the statement shall be deemed delinquent. CITY shall notify NONPOTABLE WATER CUSTOMER in writing when any such payment shall become delinquent, and if such delinquency is not removed within thirty (30) days after the sending of such written notice, CITY may, at its discretion, cease supplying water to NONPOTABLE WATER CUSTOMER under the terms of this Contract. After water has ceased to be supplied, CITY may, at its discretion, notify NONPOTABLE WATER CUSTOMER of its intention to declare this Contract forfeited and null and void. Upon such notice, NONPOTABLE WATER CUSTOMER shall have thirty (30) days to pay all delinquent charges, reconnect charges, and penalties in order to 6 reinstate -water supplies prior to final action by CITY declaring this Contract forfeited and null and void. 6-2. Conditions of Service NONPOTABLE WATER CUSTOMER shall comply with continuing conditions of receiving service as follows: 6-2.1. NONPOTABLE WATER CUSTOMER's Facilities NONPOTABLE WATER CUSTOMER agrees and understands that it will install and maintain at its sole expense all facilities necessary for NONPOTABLE WATER CUSTOMER to operate its water system from the point of delivery as described in this Contract and that CITY of Lubbock shall be under no obligation whatsoever to bear any of said expenses aforementioned. After installation of the meter facilities by CITY, NONPOTABLE WATER CUSTOMER shall not alter, modify, or improve the meter facilities under any circumstances. 6-2.2. Rates and Payment Date Pay to CITY no later than the due date specified in the statement for water delivered pursuant to the terms of this Contract those charges for nonpotable water as set forth within said statement. The charges for nonpotable water shall be established by CITY. The rates for the water service may be, from time to time, modified or amended and in the event of such modification or amendment the reference to charges for nonpotable water shall be construed so as to apply to the last modification or amendment. By execution of this Contract, NONPOTABLE WATER CUSTOMER stipulates that the methodology relied on by CITY in establishing the rate for nonpotable water is reasonable and fair. In 7 the event CITY deems it necessary to adjust or modify the rate for nonpotable water delivered pursuant to this Contract, CITY shall furnish NONPOTABLE WATER CUSTOMER with a revised rate not less than sixty (60) days prior to the effective date thereof. NONPOTABLE WATER CUSTOMER shall have the option of accepting the revised rate or terminating water deliveries under this Contract. The rates charged do not imply or include service by CITY beyond CITY'S point of delivery; it being the intent of this Contract that all expenses on NONPOTABLE WATER CUSTOMER'S side of the point of delivery as defined in this Contract shall be the sole expense of NONPOTABLE WATER CUSTOMER. NONPOTABLE WATER CUSTOMER shall pay CITY a charge of $0.50 per inch per acre per year to furnish nonpotable water to NONPOTABLE WATER CUSTOMER. 6-2.3. Access to Facilities NONPOTABLE WATER CUSTOMER shall acquire, at its expense, all easements, approvals, facilities required between public easements or rights -of -way and the measuring device and NONPOTABLE WATER CUSTOMER'S system. 6-2.4. Right of Entry CITY, its agents, employees and contractors, are hereby authorized to enter upon NONPOTABLE WATER CUSTOMER'S property where NONPOTABLE WATER CUSTOMER'S wells are located for the purpose of obtaining water samples and performing tests to determine compliance with applicable state and federal rules and regulations. The entry, sampling, and testing shall be performed at reasonable times, with three (3) days advance notice to NONPOTABLE WATER CUSTOMER. NONPOTABLE WATER CUSTOMER may have a 8 representative present during any entry upon the property. CITY'S entry upon the property and its sampling and testing shall be performed so as to prevent damage to property and interference with NONPOTABLE WATER CUSTOMER'S agricultural operations. 6-3. Mutual Conditions 6-3.1. Failure to Deliver CITY does not warrant that the services provided for in this Contract will be free from interruption or stoppage caused by maintenance, repair, substitution, renewal, replacement or improvement of any of the equipment involved in the furnishing of any such services or caused by the changes of services, alterations, strikes, lockouts, labor controversies, accidents, or acts of God, the elements, or any other cause beyond the reasonable control of CITY. In the event of a shortage of nonpotable water, or if distribution of nonpotable water by CITY to NONPOTABLE WATER CUSTOMERS is deemed inappropriate by any regulatory agency or law, the supply of nonpotable water to NONPOTABLE WATER CUSTOMER under this Contract shall be reduced or ceased as deemed necessary by CITY to protect its own interests and comply with all rules and regulations of any regulatory agency having jurisdiction of the operation. 6-3.2. Regulatory Agencies This Contract is subject to such rules and regulations as may now exist and as may be adopted by CITY of Lubbock, to comply with the Texas Water Commission, the Texas State Department of Health and other local, State 9 and Federal governmental agencies, and CITY and NONPOTABLE WATER CUSTOMER will collaborate in obtaining such permits and certificates as may be required to comply therewith. 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 this Contract in any forum having jurisdiction, and NONPOTABLE WATER CUSTOMER and CITY 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. 6-3.3. Miscellaneous Conditions All the situations, promises, undertakings and Contracts herein contained by or on behalf of either CITY or NONPOTABLE WATER CUSTOMER shall bind the successors and assigns of either party, whether so expressed or not; but neither CITY nor NONPOTABLE WATER CUSTOMER shall have the right to assign this Contract, or any part thereof except as hereinafter provided without the written consent of the other party. Either party may waive any default on the part of the opposite party affecting any other provision of the Contract, but a waiver of any one default shall not be deemed a waiver of any other or subsequent default or defaults. No delay by either party in enforcing any of its rights under this Contract shall be deemed a waiver of such rights. CITY and CITY'S agents have made no representation or promises with respect to 10 the nonpotable water supply or services except as herein expressly set forth, and no rights, easements, entitlements, or licenses are acquired by NONPOTABLE WATER CUSTOMER by implication or otherwise except as expressly set forth in this Contract. 6-3.4. Notice of Violation In the event that either CITY or NONPOTABLE WATER CUSTOMER should violate any of the terms of Paragraph 6, hereof, the other party shall promptly notify the other respective party of the violation. Unless this Contract provides otherwise, in the event said violation is not cured within thirty (30) days after the sending of such notice, the party sending the notice may at its discretion notify the other party of its intention to declare this Contract forfeited and null and void. Except as otherwise provided by this Contract, upon receiving such notice the delinquent party shall have thirty (30) days to cure said violation prior to final action by the other party declaring this Contract forfeiting and null and void. Any notice required under the terms of this Contract shall be in writing and shall be delivered by certified mail, addressed to CITY or NONPOTABLE WATER CUSTOMER. If the default cannot be cured within the thirty (30) day period, the length of the period shall be extended for a reasonable period of time, if the delinquent party commences curing the violation within the thirty day period and continues the curing of the violation with due diligence and continuity. 11 6-3.5. Title Title to all nonpotable water supplied hereunder shall be in CITY up to the point of delivery, at which point title shall pass to NONPOTABLE WATER CUSTOMER. Each of the parties hereto hereby agrees to save and hold each other party hereto harmless from all claims, demands, and causes of action which may be asserted by anyone on account of the transportation and delivery of said nonpotable water while title remains in such party. 6-4. Term of Contract The term of this Contract shall be a period of one (1) year from its effective date. NONPOTABLE WATER CUSTOMER is given an option and contract for a like period provided that at least twelve (12) months prior to the expiration of the initial term of this Contract, CITY and NONPOTABLE WATER CUSTOMER, in good faith begin to negotiate another contract pertaining to purchase of nonpotable water from CITY by NONPOTABLE WATER CUSTOMER containing mutually agreeable terms, and conditions. If another contract is not consummated, CITY shall have the option to terminate service to NONPOTABLE WATER CUSTOMER. 7. WAIVER No failure on the part of CITY at any time to require the performance by NONPOTABLE WATER CUSTOMER of any portion of this Contract shall in any way affect CITY'S right to enforce such provision or any other provision. Nor shall any waiver by CITY of any provision hereof be taken or held to be a waiver of any other provision hereof or any other 12 breach hereof. No rights under this Contract may be waived and no modification or amendment to this Contract may be made except by written amendment executed by the parties. No officer or agent of NONPOTABLE WATER CUSTOMER or CITY is authorized to waive or modify any provision of the Contract. No modifications to or rescission of this Contract may be made except by a written document signed by CITY'S and NONPOTABLE WATER CUSTOMER'S authorized representatives. 8. HEADINGS All headings in this Contract have been inserted for convenient reference only and shall not in any manner be construed as modifying, amending, or affecting in any way the express terms and provision hereof. 9. APPLICABLE LAW This Contract shall be construed under the laws of the State of Texas and all obligations of the parties hereunder are performable in Lubbock County, Texas. 10. EFFECTIVE DATE This Contract shall be effective and binding between the parties hereto on date of execution by both parties. NONPOTABLE WATER CUSTOMER hereby binds itself, its successors, assigns and representatives for the faithful and full performance of the terms and provisions of this Contract. 13 EXECUTED as of the -� day of 19y NAME NONPOTABLE TER CUSTOMER BY: 'ATTEST• D1� MAILING ADDRESS for notice: ACCEPTED AND EXECUTED as of the 9th day of May , 1991. THE CITY OF LUBBOCK BY Z. � /8. C. McMINN, MAYOR ATTEST: anet a oy City a etary APPROVED AS TO FORM: AP -AS TO CONTENT: r JoV C. Ross, Jr., ity Attorney Da A. Hawkins, D' MAILING ADDRESS for notice: ctor of Water Utilities Operations City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 ATTN: Dan A. Hawkins, P.E. Director of Water Utilities 14 �f"_�'�'�C�� '� � - tti�a_ .�-.-. fly -� ii'1 � �, -?.'o , ,L •\- -:?r :•"` i 1�1��:21`Y -� ' '.: - .Y, - •. Y'�-„- . \ '.'� +�� 1�4�. i4 I C � �` /n 8 W ��wK ; sic �•, `SIC �Y�,.v� ,., +: � .�-•J•�'�/ - - +ti, `�`4 J ) � ) I, J�,111,w�,\��.v �! �11 � �,M ^•r� •1e_ ~ ��� '�+ _ �t��`' O.'' /.r'�. O f��v-^•. -•^� A.==-�- •1,v -�., .�� S� .J���' _�rwar�w..awww� ��il.lw r�� ��wrVoiw�illlfww � ' �', ✓'�, ./, Droll \ � ✓ .ri � �, r--�/ -�1,..� \ i�('�e}�/' � y f "is ..1 ■ ,��•�, � ... ��r �^, __ ` -�� � � � y ..�1 1;�J""y ey `.\ _ /�1r,� ,T. \ j � \ r .y •-...r �►..� �►rs■iw�; r ��, r _ , i'} `\�\ �I�' � _ _ � l=1 �l.rc- • krj' i ' \\\ "'rr \ I /" "\ ` (3 t 60 is•. _� "`i - r '7\ i 1� ;:\' ,... c''�l-r�q � .�:. � r 'ii•:y>�'ar` � \, \cMr•.�r K.r. '� ■ Oj. �7.1..� ; r' � ,'V) i0d`J� l °J•f. �� _ ,�\ r�..^ �, a.o.. wsra / w.r Ci1•�. \\ ( EEC S ■ ` �� ''�/ r , �/,�,. \V.r.r 1 �� as � �`�r�� /�i� ; ��a� �� ate •Tf..f `.� �/ � ,1'r' ■ sislsuX"MA ta■ae wn/ -wy pw * wx. whiaws{�■ ::i'f '�fLwdRlw ■'ifi ^ euf 6"0 \ ■ F 7 l*i aa�l.awwwiwawwamd ts. Woo. ■ Las f nrr- _ .... /'� TIf.� 1 \ \\ «_ _..• _ wr+wwwww��rwww�w Mwwwwww wwww{ it ■/ wrr i Oct)ns. ■ tl8Z'J� ZE f •� _ r.. .�_ _ �, � V wrt ...___� ��U - ,.n, � \ 1-+•ram" 1 Nf �� I \ Resolution No. 3610 May 9, 1991 Item #19 STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK § This Contract is made by and between CITY of Lubbock (herein called "CITY"), a municipal corporation located in Lubbock County, acting by and through its undersigned duly authorized mayor as authorized by 'specific action of its City Council; and rU j,Vfum�) (herein called "NONPOTABLE WATER CUSTOMER"), acting as an independent entity. 1. RECITALS 1-1. This Contract is made to provide access to CITY'S existing nonpotable water system and to define the terms and conditions under which CITY will provide nonpotable water for NONPOTABLE WATER CUSTOMER'S water system to make said nonpotable water available for nonhuman consumption purposes only on property located near the City of Lubbock's Land Application Site as shown on Attachment "A", and as of , 1911. 1-2. This Contract is entered into as the result of a request from NONPOTABLE WATER CUSTOMER to receive said nonpotable water from CITY'S system. For and in consideration of the mutual agreement, covenants, obligations, and benefits of this Contract, CITY and NONPOTABLE WATER CUSTOMER contract and agree as follows: 2. DEFINITIONS All words and phrases used in this Contract shall be construed in accordance with their definitions as are contained herein. 1 3. NONPOTABLE WATER CUSTOMER APPLIES FOR WATER SERVICE NONPOTABLE WATER CUSTOMER makes application to CITY that it furnish nonpotable water service by providing access to its existing nonpotable water system. NONPOTABLE WATER CUSTOMER'S nonpotable water system located near CITY'S Land Application Site is that property described in Attachment A of this Contract. 4. TERMS, PROVISIONS AND CONSIDERATIONS CITY will furnish such service and will perform as required by the terms of this Contract in consideration of the commitments made by NONPOTABLE WATER CUSTOMER to CITY and to each other under the terms of this Contract, provided however, the obligation of CITY to provide service is conditioned upon compliance by NONPOTABLE WATER CUSTOMER with all present and future requirements of the U. S. E. P. A., the Texas Water Commission, the Texas Department of Health, and other present and future agencies having jurisdiction over ground water and nonpotable water, and upon the availability of nonpotable water for distribution to NONPOTABLE WATER CUSTOMERS as determined by the CITY. And the Parties agree to additional terms and conditions as follows: 5. CITY'S CODE OF ORDINANCES PART OF CONTRACT CITY'S Code of Ordinances and amendments thereto on file at the office of CITY'S city secretary are made a part hereof. 2 6. CITY SHALL FURNISH CERTAIN WATER SYSTEM FACILITIES AND NONPOTABLE WATER CUSTOMER SHALL COMPLY WITH CERTAIN CONDITIONS OF SERVICE: MUTUAL CONDITIONS: TERM 6-1. CITY Shall Furnish Facilities CITY shall furnish its existing nonpotable water system facilities and construct a water tap and metering facilities as are necessary to provide nonpotable water service to NONPOTABLE WATER CUSTOMER'S nonpotable water system for the property described in Exhibit "A" under such conditions as are provided as follows: 6-1.1. Quality and Treatment Nonpotable water is of similar quality as supplied to CITY of Lubbock for irrigation purposes. Nonpotable water does not receive treatment and, therefore, no guarantees concerning the quality thereof are made or implied. Nonpotable water shall be received by NONPOTABLE WATER CUSTOMER on an AS IS basis. CITY may furnish such supply out of various ground water wells at its sole discretion. 6-1.2. Quantity Quantities of nonpotable water shall be delivered as available from CITY'S system. The availability of nonpotable water shall be determined solely by the CITY. No guarantees of quantity, availability, or delivery times and dates are made or implied. All nonpotable water quantities provided shall be measured at the point of delivery. The point of delivery will be at a measuring device located within 100 feet of a connection to NONPOTABLE WATER CUSTOMER'S nonpotable water system. C] The measuring device shall be located in an area reasonably accessible by CITY at all times. CITY shall install a metering station at the point of delivery and at its option may include in such metering station the following devices: (1) control the rate of flow; (2) measure the instantaneous flow of gallons per day; (3) measure peak hourly flow during the day of maximum flow in gallons per day; (4) measure the cumulative volume of water taken; and (5) control changes in the rate of flow, said devices being operable by CITY at the metering station and remotely from within CITY. Deliveries shall be contingent upon completion of facilities necessary or convenient to deliver the water from CITY'S existing facilities to the point of delivery. NONPOTABLE WATER CUSTOMER not contiguous to City's existing facilities may be required to reimburse CITY for the cost of materials and labor necessary to provide piping from CITY'S existing system to NONPOTABLE WATER CUSTOMER'S nonpotable water system. These reimbursements for the costs of the connecting piping, if constructed by City, shall be made to CITY whether or not NONPOTABLE WATER CUSTOMER actually takes delivery of nonpotable water under this Contract. Title to the water delivered by CITY to NONPOTABLE WATER CUSTOMER shall change at the measuring device as provided by paragraph 6-3.5 of this Contract. 6-1.3. Point of Delivery and Pressure Water will be delivered at a flow rate and pressure as available from CITY'S system at the meter located at the point of delivery. No guarantees of minimum flows or pressures are made or implied. 4 6-1.4. Metering Equipment CITY will be responsible for the installation and maintenance of the necessary metering equipment, and required devices of standard type for properly measuring the quantity of water delivered to NONPOTABLE WATER CUSTOMER and calibration of such metering equipment within a reasonable time if requested by NONPOTABLE WATER CUSTOMER, but not less frequently than once every twelve (12) months, or more frequently than once every three (3) months. NONPOTABLE WATER CUSTOMER shall provide an all- weather access to the metering facilities for the City's use in the installation and maintenance activities. A meter registering not more than three percent accuracy expected from a propeller meter above or below the test result shall be deemed to be accurate. The previous readings of any meter disclosed by test to be inaccurate 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 the reading thereof, the water delivered during the period such meter is out of service or out of repair shall be estimated upon the basis of the best data available. The metering equipment register shall be read by CITY at least once a month. Metering equipment, valves, and other appurtenances associated with the metering installation shall remain the property of CITY. 5 6-1.5. Billing Procedure A monthly statement of the amount of water determined to be consumed by NONPOTABLE WATER CUSTOMER through the meter described in Section 6-1.2 of this Contract during the preceding month shall be mailed to NONPOTABLE WATER CUSTOMER. All statements for water so consumed shall be due and payable fifteen (15) days after the issuance of said statement. A late payment charge of five percent (5%) shall be charged to NONPOTABLE WATER CUSTOMER if said customer fails to pay its bill on or before thirty (30) days from date of issuance. In the event NONPOTABLE WATER CUSTOMER fails to pay its statement in full on or before the expiration of thirty (30) days from the date of issuance of said statement than in such event interest shall be added to said statement at the maximum lawful rate of interest on prejudgment debts in the State of Texas from such date aforementioned until said statement is paid in full. If payment is not received by CITY within thirty (30) days after the due date, the statement shall be deemed delinquent. CITY shall notify NONPOTABLE WATER CUSTOMER in writing when any such payment shall become delinquent, and if such delinquency is not removed within thirty (30) days after the sending of such written notice, CITY may, at its discretion, cease supplying water to NONPOTABLE WATER CUSTOMER under the terms of this Contract. After water has ceased to be supplied, CITY may, at its discretion, notify NONPOTABLE WATER CUSTOMER of its intention to declare this Contract forfeited and null and void. Upon such notice, NONPOTABLE WATER CUSTOMER shall have thirty (30) days to pay all delinquent charges, reconnect charges, and penalties in order to 6 reinstate water supplies prior to final action by CITY declaring this Contract forfeited and null and void. 6-2. Conditions of Service NONPOTABLE WATER CUSTOMER shall comply with continuing conditions of receiving service as follows: 6-2.1. NONPOTABLE WATER CUSTOMER's Facilities NONPOTABLE WATER CUSTOMER agrees and understands that it will install and maintain at its sole expense all facilities necessary for NONPOTABLE WATER CUSTOMER to operate its water system from the point of delivery as described in this Contract and that CITY of Lubbock shall be under no obligation whatsoever to bear any of said expenses aforementioned. After installation of the meter facilities by CITY, NONPOTABLE WATER CUSTOMER shall not alter, modify, or improve the meter facilities under any circumstances. 6-2.2. Rates and Payment Date Pay to CITY no later than the due date specified in the statement for water delivered pursuant to the terms of this Contract those charges for nonpotable water as set forth within said statement. The charges for nonpotable water shall be established by CITY. The rates for the water service may be, from time to time, modified or amended and in the event of such modification or amendment the reference to charges for nonpotable water shall be construed so as to apply to the last modification or amendment. By execution of this Contract, NONPOTABLE WATER CUSTOMER stipulates that the methodology relied on by CITY in establishing the rate for nonpotable water is reasonable and fair. In 7 the event CITY deems it necessary to adjust or modify the rate for nonpotable water delivered pursuant to this Contract, CITY shall furnish NONPOTABLE WATER CUSTOMER with a revised rate not less than sixty (60) days prior to the effective date thereof. NONPOTABLE WATER CUSTOMER shall have the option of accepting the revised rate or terminating water deliveries under this Contract. The rates charged do not imply or include service by CITY beyond CITY'S point of delivery; it being the intent of this Contract that all expenses on NONPOTABLE WATER CUSTOMER'S side of the point of delivery as defined in this Contract shall be the sole expense of NONPOTABLE WATER CUSTOMER. NONPOTABLE WATER CUSTOMER shall pay CITY a charge of $0.50 per inch per acre per year to furnish nonpotable water to NONPOTABLE WATER CUSTOMER. 6-2.3. Access to Facilities NONPOTABLE WATER CUSTOMER shall acquire, at its expense, all easements, approvals, facilities required between public easements or rights -of -way and the measuring device and NONPOTABLE WATER CUSTOMER'S system. 6-2.4. Right of Entry CITY, its agents, employees and contractors, are hereby authorized to enter upon NONPOTABLE WATER CUSTOMER'S property where NONPOTABLE WATER CUSTOMER'S wells are located for the purpose of obtaining water samples and performing tests to determine compliance with applicable state and federal rules and regulations. The entry, sampling, and testing shall be performed at reasonable times, with three (3) days advance notice to NONPOTABLE WATER CUSTOMER. NONPOTABLE WATER CUSTOMER may have a 8 representative present during any entry upon the property. CITY'S entry upon the property and its sampling and testing shall be performed so as to prevent damage to property and interference with NONPOTABLE WATER CUSTOMER'S agricultural operations. 6-3. Mutual Conditions 6-3.1. Failure to Deliver CITY does not warrant that the services provided for in this Contract will be free from interruption or stoppage caused by maintenance, repair, substitution, renewal, replacement or improvement of any of the equipment involved in the furnishing of any such services or caused by the changes of services, alterations, strikes, lockouts, labor controversies, accidents, or acts of God, the elements, or any other cause beyond the reasonable control of CITY. In the event of a shortage of nonpotable water, or if distribution of nonpotable water by CITY to NONPOTABLE WATER CUSTOMERS is deemed inappropriate by any regulatory agency or law, the supply of nonpotable water to NONPOTABLE WATER CUSTOMER under this Contract shall be reduced or ceased as deemed necessary by CITY to protect its own interests and comply with all rules and regulations of any regulatory agency having jurisdiction of the operation. 6-3.2. Regulatory Agencies This Contract is subject to such rules and regulations as may now exist and as may be adopted by CITY of Lubbock, to comply with the Texas Water Commission, the Texas State Department of Health and other local, State 9 and Federal governmental agencies, and CITY and NONPOTABLE WATER CUSTOMER will collaborate in obtaining such permits and certificates as may be required to comply therewith. 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 this Contract in any forum having jurisdiction, and NONPOTABLE WATER CUSTOMER and CITY 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. 6-3.3. Miscellaneous Conditions All the situations, promises, undertakings and Contracts herein contained by or on behalf of either CITY or NONPOTABLE WATER CUSTOMER shall bind the successors and assigns of either party, whether so expressed or not; but neither CITY nor NONPOTABLE WATER CUSTOMER shall have the right to assign this Contract, or any part thereof except as hereinafter provided without the written consent of the other party. Either party may waive any default on the part of the opposite party affecting any other provision of the Contract, but a waiver of any one default shall not be deemed a waiver of any other or subsequent default or defaults. No delay by either party in enforcing any of its rights under this Contract shall be deemed a waiver of such rights. CITY and CITY'S agents have made no representation or promises with respect to 10 the nonpotable water supply or services except as herein expressly set forth, and no rights, easements, entitlements, or licenses are acquired by NONPOTABLE WATER CUSTOMER by implication or otherwise except as expressly set forth in this Contract. 6-3.4. Notice of Violation In the event that either CITY or NONPOTABLE WATER CUSTOMER should violate any of the terms of Paragraph 6, hereof, the other party shall promptly notify the other respective party of the violation. Unless this Contract provides otherwise, in the event said violation is not cured within thirty (30) days after the sending of such notice, the party sending the notice may at its discretion notify the other party of its intention to declare this Contract forfeited and null and void. Except as otherwise provided by this Contract, upon receiving such notice the delinquent party shall have thirty (30) days to cure said violation prior to final action by the other party declaring this Contract forfeiting and null and void. Any notice required under the terms of this Contract shall be in writing and shall be delivered by certified mail, addressed to CITY or NONPOTABLE WATER CUSTOMER. If the default cannot be cured within the thirty (30) day period, the length of the period shall be extended for a reasonable period of time, if the delinquent party commences curing the violation within the thirty day period and continues the curing of the violation with due diligence and continuity. 11 6-3.5. Title Title to all nonpotable water supplied hereunder shall be in CITY up to the point of delivery, at which point title shall pass to NONPOTABLE WATER CUSTOMER. Each of the parties hereto hereby agrees to save and hold each other party hereto harmless from all claims, demands, and causes of action which may be asserted by anyone on account of the transportation and delivery of said nonpotable water while title remains in such party. 6-4. Term of Contract The term of this Contract shall be a period of one (1) year from its effective date. NONPOTABLE WATER CUSTOMER is given an option and contract for a like period provided that at least twelve (12) months prior to the expiration of the initial term of this Contract, CITY and NONPOTABLE WATER CUSTOMER, in good faith begin to negotiate another contract pertaining to purchase of nonpotable water from CITY by NONPOTABLE WATER CUSTOMER containing mutually agreeable terms, and conditions. If another contract is not consummated, CITY shall have the option to terminate service to NONPOTABLE WATER CUSTOMER. 7. WAIVER No failure on the part of CITY at any time to require the performance by NONPOTABLE WATER CUSTOMER of any portion of this Contract shall in any way affect CITY'S right to enforce such provision or any other provision. Nor shall any waiver by CITY of any provision hereof be taken or held to be a waiver of any other provision hereof or any other 12 breach hereof. No rights under this Contract may be waived and no modification or amendment to this Contract may be made except by written amendment executed by the parties. No officer or agent of NONPOTABLE WATER CUSTOMER or CITY is authorized to waive or modify any provision of the Contract. No modifications to or rescission of this Contract may be made except by a written document signed by CITY'S and NONPOTABLE WATER CUSTOMER'S authorized representatives. 8. HEADINGS All headings in this Contract have been inserted for convenient reference only and shall not in any manner be construed as modifying, amending, or affecting in any way the express terms and provision hereof. 9. APPLICABLE LAW This Contract shall be construed under the laws of the State of Texas and all obligations of the parties hereunder are performable in Lubbock County, Texas. 10. EFFECTIVE DATE This Contract shall be effective and binding between the parties hereto on date of execution by both parties. NONPOTABLE WATER CUSTOMER hereby binds itself, its successors, assigns and representatives for the faithful and full performance of the terms and provisions of this Contract. 13 EXECUTED as of the �(D day of�m& , 1d, NAME NONPOTABLE WATER CUSTOMER BY: ATTEST. r J �� SirmGJ MAILING ADDRESS for notice: ACCEPTED AND EXECUTED as of the 9th day of May , 1991. THE CITY OF LUBBOCK - iB. cM OR ATTEST: anet oy , �Secreta APPROVED AS TO FORM: AP vsD AS To CON=: n C. Ross, r., City Attorney D,1f A. Hawkins, MAILING ADDRESS for notice: 'ct Dor of Water Utilities operations City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 ATTN: Dan A. Hawkins, P.E. Director of Water Utilities 14 IRIDNPO�ABLE WATER CONTRACT ATTACHMENT A Bruce Gentry Gentry Brothers Farms