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HomeMy WebLinkAboutResolution - 2001-R0326 - Agreement For The Emergency Sale Of Wholesale Water With City Of Littlefield - 08/30/2001Resolution No. 2001-RO326 August 30, 2001 Item No. 38 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock an Agreement for the Emergency Sale of Wholesale Water Between the City of Littlefield and the City of Lubbock, and any other related documents. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 30th day of August 2001. WINDY SITTO , NAYOR ATTEST: Reb cca Garza, City Secretary APPROVED AS TO CONTENT: Terfy Ellerbrook Managing Director Water Utilities APPROVED AS RM: Richard K. Casner Natural Resources Attorney RKC:cp Ccdocs/Littlefield-COL-WholesaleWater.Res August 20, 2001 Resolution No. 2001-RO326 August 30, 2001 Item No. 38 AGREEMENT FOR THE EMERGENCY SALE OF WHOLESALE WATER BETWEEN THE CITY OF LITTLEFIELD AND THE CITY OF LUBBOCK This Agreement is made and entered into this the 30th day of August , 2001, between the City of Lubbock, Texas, (hereinafter "Lubbock"), the City of Littlefield, Texas, (hereinafter "Littlefield"). WITNESSETH THAT: WHEREAS, Lubbock owns and operates a water pipeline (the "Pipeline") located along or near the U.S. Highway 84 right-of-way at or near Littlefield; and WHEREAS, the Pipeline is utilized to transport potable water from lands owned, leased or controlled by Lubbock located in Lamb and Bailey Counties of Texas to Lubbock; and WHEREAS, Littlefield acknowledges that the primary purpose of the water from the Pipeline is to serve citizens of Lubbock; and WHEREAS, Littlefield, in the event of an emergency situation, has requested that Lubbock sell, and Littlefield purchase, water from the Pipeline; and WHEREAS, as prescribed and limited by the terms of this Agreement, Lubbock has agreed to sell, and Littlefield has agreed to purchase, water from the Pipeline. NOW THEREFORE, Littlefield and Lubbock, for and in consideration of the undertakings assumed as hereinafter set forth, do hereby agree and bind themselves as follows: 1. Term. This Agreement shall extend for a period of five (5) years from the date of execution of this Agreement by Lubbock (the "Original Term"). At the expiration of the Original Term, this Agreement For The Sale of Wholesale Water Between the City of Littlefield and the City of Lubbock Page 1 of 11 Agreement shall be automatically extended for an additional five (5) year term, upon identical terms and provisions, unless a party hereto gives the other party written notice of its intention to terminate this agreement delivered to the other party at least 180 days prior to the end of the Original Term. In all instances this Agreement is subject to termination prior to the end of the Original Term or any extension as is hereinafter provided. 2. Consideration. Littlefield shall pay to Lubbock for the water purchased pursuant to the terms hereof, the rate applicable to commercial consumers of the City of Lubbock for the applicable time of the purchase of water hereunder as adopted by the City Council of Lubbock. In addition to the above, Littlefield shall also be billed and timely pay all associated personnel, equipment and vehicle costs actually incurred by Lubbock related to the water delivery. Lubbock shall provide to Littlefield an invoice detailing such costs. 3. Payment. Littlefield shall pay the water charges and all additional costs incurred by Lubbock in accordance with Paragraph 2, on a monthly basis, within thirty (30) days of receipt of the invoice for the previous month's deliveries, unless a shorter period is prescribed by law. Prompt payment is a material condition of this Agreement. All past due payments due hereunder shall bear interest at the rate of ten percent (10%) per annum, or the highest non -usurious rate of interest, if any, permitted by applicable law on any day, whichever is less. If any interest in excess of the highest non -usurious rate of interest is contracted for, taken, reserved, charged or received by Lubbock, such interest shall be credited to amounts due Lubbock hereunder, or if no such amounts are due, refunded to Littlefield. Agreement For The Sale of Wholesale Water Between the City of Littlefield and the City of Lubbock Page 2 of 11 4. Quantity. Subject to the provisions of this Agreement, including without limitation, paragraph 8, below: (a) Lubbock shall not be obligated to deliver water to Littlefield in excess of One Thousand (1,000) gallons per minute. No minimum flow is guaranteed by Lubbock due to the seasonal operation of the Pipeline. (b) Subject to the terms hereof, Lubbock shall deliver water to Littlefield as requested by Littlefield, so long as Littlefield shall notify the water control room operator by phone call (at 806-775-2587) immediately before delivery for acute emergencies and at least forty-eight (48) hours prior to needs associated with scheduled water system repairs, or other permitted emergency situations. (c) Littlefield may purchase water hereunder only in the event of an emergency situation. An "emergency situation" is defined as a situation arising due to an act of God or sudden mechanical or equipment failure, temporary water system repairs or other acute water supply interferences or failures. The term expressly excludes any water shortages arising due to, or related to, (i) drought; or (ii) planning, or lack thereof, related to water availability, use or conservation. (d) Purchase of water by Littlefield shall be limited to seventy two (72) consecutive hours per occurrence. Lubbock may, in its sole and absolute discretion, allow for additional purchases of water by Littlefield under upon the same terms and provisions as other purchases of water hereunder. In the event Littlefield shall desire additional purchases, Littlefield shall notify Lubbock as soon as reasonably practicable after it has knowledge of such desire. Agreement For The Sale of Wholesale Water Between the City of Littlefield and the City of Lubbock Page 3 of 11 5. Water Quality. Littlefield has made an independent inspection and evaluation of the water to be delivered hereunder and acknowledges that Lubbock has made no statements or representations concerning the water to be delivered hereunder. LUBBOCK MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO THE DESCRIPTION, VALUE, QUALITY, PHYSICAL CONDITION, MERCHANTABILITY, OR FITNESS FOR PURPOSE OF THE WATER SUBJECT OF THIS AGREEMENT. THE WATER SUBJECT OF THIS AGREEMENT AND THE DELIVERY, SALE AND PURCHASE OF WATER CONTEMPLATED UNDER THIS AGREEMENT IS AS IS, WHERE IS AND WITH ALL FAULTS. Littlefield further acknowledges that, in entering into this Agreement, it has relied solely upon its independent examination of the water and delivery system and the independent estimates, computations, evaluations and studies based thereon. Lubbock makes no warranties or representations, express or implied, as to the accuracy, completeness or usefulness of any information furnished to Littlefield, if any, whether furnished by Lubbock or any third party. Reliance on any material so furnished shall not give rise to any cause, claim or action against Lubbock, its officers, employees, elected officials and/or agents, and any such reliance shall be at Littlefield's sole risk. 6. Delivery. Water delivered pursuant to this Agreement shall be delivered at or near the point depicted on the plat attached as Exhibit "A" hereto and made a part hereof for all purposes, at the outlet side of the water meter (the "Delivery Point"). Water entering the storage facility of Agreement For The Sale of Wholesale Water Between the City of Littlefield and the City of Lubbock Page 4 of 11 Littlefield shall be through an air gap, as approved by Lubbock, physically separating the water system of Littlefield from that of Lubbock. Lubbock shall have no responsibility for, or control over the water beyond the Delivery Point. Once the water is delivered to the Delivery Point, it shall be the sole responsibility of Littlefield to insure the quality and delivery of the water to its customers. Title to the water purchased by Littlefield and delivered pursuant to the terms of this Agreement shall pass to Littlefield as the water enters the outlet side of the Delivery Point. LITTLEFIELD ASSUMES FULL RESPONSIBILITY, LIABILITY AND RISK OF LOSS WHERE THE WATER IS OWNED BY IT. LUBBOCK SHALL NOT BE RESPONSIBLE OR LIABLE FOR, AND LITTLEFIELD HEREBY RELEASES LUBBOCK FOR, ANY LOSS, DAMAGE, CLAIM OR ACTION UNLESS SUCH LOSS, DAMAGE, CLAIM OR ACTION DIRECTLY ARISES FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LUBBOCK. 7. Measurement.. Littlefield shall provide at its cost to Lubbock at the Delivery Point a water meter, complete with back flow prevention acceptable to Lubbock, in its sole and absolute discretion. The meter shall measure the amount of water delivered in gallons. Once approved by Lubbock, the meter shall become the property of Lubbock for all purposes. The meter shall be constructed in a vault in which no public access is available. The vault shall be secured at all times and contain an entry alarm, connected to the Lubbock SCADA system. The meter shall be calibrated by Lubbock as often as it deems necessary, but at least annually, with a thirty (30) day tolerance, beginning one (1) year from the date of the execution Agreement For The Sale of Wholesale Water Between the City of Littlefield and the City of Lubbock Page 5 of 11 of this Agreement by Lubbock, and each year thereafter during the term hereof. A meter registering not more than three percent (3%) 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. Littlefield shall at all times during the life of this Agreement retain the right to check the meter for accuracy at reasonable times and upon reasonable notice to Lubbock. The checks shall be conducted in the presence of an employee or employees designated by Lubbock. If Lubbock shall require, in its discretion, Lubbock may install, at the expense of Littlefield, a SCADA PLC system, two way or other radio system or systems and any other equipment deemed necessary for remote monitoring and control by Lubbock, as determined in the sole and absolute discretion of Lubbock. S. Subordination. The quantities of water to be purchased pursuant to the terms hereof shall be reduced or completely discontinued in the event that (i) the customers of Lubbock shall need or desire water in quantities that require delivery of water from the Pipeline in quantities sufficient to negatively affect water available for delivery hereunder; (ii) the Pipeline shall not have sufficient water supplies for any reason; or (iii) any other situation arises that renders the delivery of water to Agreement For The Sale of Wholesale Water Between the City of Littlefield and the City of Lubbock Page 6 of 11 Littlefield not feasible. Lubbock, in its sole and absolute discretion, shall determine whether the delivery of water to Littlefield is feasible. Littlefield subordinates its rights to purchase water, as set forth hereunder, and acknowledges such rights are inferior to the customers of Lubbock. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, LUBBOCK SHALL BE UNDER NO OBLIGATION TO SELL OR DELIVER WATER TO LITTLEFIELD, AND SUCH SALES, IF ANY, SHALL BE AT THE SOLE AND ABSOLUTE DISCRETION OF LUBBOCK. 9. Representations and Warranties. Littlefield represents and warrants as follows: (a) Littlefield represents and warrants to Lubbock that the execution, delivery and performance of the terms of this Agreement have been duly authorized by all necessary actions. 10. Drought Contingency Plan. Lubbock has adopted certain Drought Contingency Plan (s) and other policies and measures related to the conservation of water. Littlefield shall, to the extent it purchases water hereunder, comply with and follow all such terms, provisions, policies, measures, directives and obligations to the same extent as required, advised and/or requested of Lubbock and/or its retail water customers. 11. Assignment. This Agreement may not be assigned by any party without the written consent of all other partys, as approved by their respective City Councils, in their discretion. Agreement For The Sale of Wholesale Water Between the City of Littlefield and the City of Lubbock Page 7of11 12. Modification. This Agreement may be amended only with the consent of the governing bodies of the parties hereto through appropriate written resolutions, executed and delivered to each party. 13. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes any and all prior or contemporaneous agreements, resolutions or understandings, whether written or oral with respect to the subject matter hereof. No verbal agreement or conversation with any officer, agent or employee of either party either before or after execution of the Agreement, shall affect or modify any of the terms or obligations contained in this Agreement. Any such verbal agreement or conversation shall be considered as unofficial information and in no way binding upon the parties. 14. Waiver. Failure of any party to exercise any right or remedy arising out of a breach of this Agreement by the other party shall not be deemed a waiver of any right or remedy with respect to any subsequent or different breach, or the continuance of any existing breach. 15. Construction. This Agreement is intended to express the mutual intent of the parties and, irrespective of the identity of the party preparing this Agreement or any document or instrument referred to herein, no rule of strict construction against the party preparing the document shall be applied. Agreement For The Sale of Wholesale Water Between the City of Littlefield and the City of Lubbock Page 8 of 11 16. Severability. In the event any portion of this Agreement shall be declared to be invalid or unenforceable for any reason, such finding shall not affect the validity of the balance of this Agreement. 17. Default. In the event (i) any representation or warranty of Littlefield shall be or become untrue or incorrect; or (ii) Littlefield shall fail to meet, comply with or perform any or all of its obligations hereunder (collectively, a "Default"), and such Default shall continue for thirty (30) days following written notice of default delivered to Littlefield, Lubbock may exercise any and all remedies available to it by law, equity, contract or otherwise, including without limitation, termination of this Agreement. In the event Lubbock shall fail to meet, comply with or perform any of its obligations hereunder, and such default shall continue for thirty (30) days following written notice of default delivered to Lubbock, Littlefield may, as its sole and exclusive remedy, terminate this Agreement. 18. Notices. Any notices authorized or required by this Agreement, except as otherwise provided herein, shall be deemed properly given, on the day mailed, by United States Mail, postage prepaid, certified mail, return receipt requested, in the case of Littlefield, properly addressed to the Mayor of Littlefield, Bruce A. Peel, or successor, P. O. Box 1267, Littlefield, Texas 79339, with copy to City Manager, Brian L. Carleton, or successor, P. O. 1 Box 1267, Littlefield, Texas 79339, and in the case of Lubbock, to the Director of Water Utilities, Terry Ellerbrook, or Agreement For The Sale of Wholesale Water Between the City of Littlefield and the City of Lubbock Page 9 of 11 successor, P. O. Box 2000, Lubbock, Texas 79457, with copy to the City Manager, Bob Cass, or successor, P. O. Box 2000, Lubbock, Texas 79457. 19. Execution and Approval. This Agreement shall not become effective until executed by all parties hereto. IN WITNESS WHEREOF, the parties hereto acting under authority of their respective governing bodies have caused this agreement to be duly executed. Dated this 3013 day of August , 2001. CITY OF LUBBOCK, TEXAS Date: August 30, 2001 ATTEST: Re ecca Garza, City Secretary APPROVED AS TO CONTENT: Terry Ellerbrook, Managing Director of Water Utilities APPROVED AS TO FO Richard K. Casner, Natural Resources Attorney Agreement For The Sale of Wholesale Water Between the City of Littlefield and the City of Lubbock Page 10 of 11 CITY OF LITTLEFIELD, TEXAS IIn BRUCE A. PEEL, MAYOR Dater ATTEST: Concha Ojeda, y Secretary RKC: cp cityattlRichardlW holesaleW aterLittlefieldLubbock-Agreement July 11, 2001 Agreement For The Sale of Wholesale Water Between the City of Littlefield and the City of Lubbock Page 11 of 11 Resolution No. 2001-R0326 I I I + 1 I I I I 1 I 1 1 I y _______ _______ ___ L_______�____ I S 1 d• r .r, titi4111 I I I 1 I I 1 1 1 1 I \ I I 1 1 1 I I I I\ I I 1 I \ / \ 1 / f'-; _____----i-- \ a--v--F�• HA A AL m mr %/{ V A / r I y(\ / m 4 r� I / � VMITT NBUXO _ I` IMIE MCCg11TY i \ � i, SEL mI A10 / .�. a D ELMS _ B..o_MILL N T Z 1 I yi • Ul HIeju 7z OAL ESTM 6 ST IIIM r ENT qL I ALABAMA % 44 y � ♦ H L�J I % LO C±rU- fix.."_ z� omr'; z '-------- m�K o �� ~ zz Exhibit "A" —J