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HomeMy WebLinkAboutResolution - 2011-R0350 - Agreement For Emergency Sale Of Wholesale Water - City Of Littlefield - 08/11/2011Resolution No. 2011-RO350 August 11, 2011 Item No. 5.7 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock an Agreement for the Emergency Sale of Wholesale Water between the City of Lubbock and the City of Littlefield, Texas, and related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on August 11, 2011 TOM MARTIN, MAYOR ATTEST: E Rebec • Garza, City Secretary APPROVED AS TO CONTENT: Aubrey Spear, Water Lliflity Director MS/Interlocal Agrmt.LittlefieldWaterSalesxes 7.28.11 Resolution No. 2011-RO350 AGREEMENT FOR THE EMERGENCY SALE OF WHOLESALE WATER BETWEEN THE CITY OF LITTLEFIELD AND THE CITY OF LUBBOCK This Contract is made by and between the CITY OF LUBBOCK (herein called "PROVIDER") a home rule municipal corporation located in Lubbock County, acting by and through its Mayor as authorized by specific action of its City Council; and the CITY OF LITTLEFIELD (herein called "CONSUMER/USER"), a Texas Municipality, acting by and through its Mayor and City Council. WITNESSETH WHEREAS, the CONSUMER/USER is an independent and locally governed municipality located northwest of the PROVIDER; 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 the CUSUMER/USER; WHEREAS, the Pipeline is utilized to transport potable water from lands owned, leased or controlled by PROVIDER located in Lamb and Bailey Counties of Texas to Lubbock; WHEREAS, the CONSUMER/USER acknowledges that the primary purpose of the water from the Pipeline is to serve citizens of Lubbock; WHEREAS, upon proper notice of a qualified emergency, the Parties hereto desire that PROVIDER should sell, and CONSUMER/USER should purchase, water from the Pipeline; WHEREAS, Section 22.03.091(f) of the Code of Ordinances of the PROVIDER permits the sale of wholesale water outside of its municipal boundaries to federal, state, or local governments pursuant to appropriate intergovernmental contracts; WHEREAS, the PROVIDER is amenable to providing said wholesale, subject to the conditions precedent and upon the terms and conditions of this Contract, to the CONSUMER/USER; and WHEREAS, the Texas Government Code authorizes certain intergovernmental cooperation contracts. NOW THEREFORE, for and in consideration of the mutual agreements, covenants, obligations, and benefits herein expressed, PROVIDER and CONSUMER/USER contract and agree as follows: ARTICLE I PROVISIONS OF WATER 1.1 TERMS, PROVISIONS AND CONSIDERATIONS PROVIDER agrees to sell and convey wholesale water to the CONSUMER/USER, subject to the conditions precedent and under and pursuant to the terms, provisions and conditions of this Contract. Agreement for the Emergency Sale of Wholesale Water — City of Lubbock/City of Littlefield Page 1 of 10 ARTICLE II CONDITIONS OF SALE OF WHOLESALE WATER 2.1 QUALITY AND TREATMENT PROVIDER shall supply potable water of similar quality that Lubbock distributes to the residents of Lubbock, Texas from the Bailey County Wells Field treated by disinfectants and such other treatment as may in the future be directed by appropriate regulatory agencies and meeting the applicable primary drinking water standards of the Texas Commission on Environmental Quality and other local, State, and Federal government agencies at the Point Of Delivery, as hereinafter defined, during the term of this Contract or any renewal or extension thereof. PROVIDER may at its sole discretion, furnish supply out of surface water, groundwater other than Bailey County, treated wastewater or any combination of same. PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING WITHOUT LIMITATION, AS TO THE DESCRIPTION, VALUE, QUALITY, PHYSICAL CONDITION, MERCHANTIBILITY, OR FITNESS FOR PURPOSE OF THE WATER SUBJECT TO THIS CONTRACT EXCEPT AS EXPRESSLY SET FORTH ABOVE. 2.2 QUANTITY PROVIDER shall supply and deliver a maximum of 1000 gallons per minute beginning September 1, 2011 to the CONSUMER/USER point of delivery as shown in Exhibit A. All water quantities delivered shall be measured at the point of delivery. No minimum flow is guaranteed by PROVIDER. Subject to the terms hereof, PROVIDER shall deliver water to CONSUMER/USER as requested by CONSUMER/USER, so long as CONSUMER/USER shall have notified the water control room operator by phone call (806-775-2587) immediately before delivery for emergency situations (as hereinafter defined), or at least 48 hours prior to needs associated with scheduled water system repairs or other permitted emergency situations, as the case may be. CONSUMER/USER 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 unforeseeable 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, that, in the sole opinion of the PROVIDER, is related to water availability, use or conservation. Purchase of water by CONSUMER/USER shall be limited to 72 consecutive hours per occurrence. PROVIDER may, in its sole and absolute discretion, allow for additional purchases of water by CONSUMER/USER under the same terms and conditions as other purchases of water hereunder. In the event CONSUMER/USER shall desire additional purchases, CONSUMER/USER shall notify Lubbock as soon as reasonably practicable after it has knowledge of such desire. All water quantities delivered shall be measured by a metering device as specified by the PROVIDER at the sole cost to the CONSUMER/USER located in an area reasonably accessible by the PROVIDER at all times. Installation of this metering device shall be the responsibility of the PROVIDER with all cost and expense of such installation reimbursed by the Agreement for the Emergency Sale of Wholesale Water - City of Lubbock/City of Littlefield Page 2 of 10 CONSUMER/USER. Such metering device may include and manage: (1) control of rate of flow; (2) measure the instantaneous flow of gallons per day; 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 and at PROVIDER option be remotely monitored and documented as to usage of CONSUMER. Deliveries shall be contingent upon facilities necessary or convenient for the PROVIDER to deliver water to the CONSUMER/USER from existing water conveyance system to the point of delivery. 2.3 POINT OF DELIVERY AND TITLE WATER provided to CONSUMER/USER shall be delivered to the point of delivery described in Exhibit "A". Title to water passing through the flow meter shall become the property of the CONSUMER/USER at the outlet side of the meter. CONSUMER/USER shall be responsible for the water, for all purposes and intents, from and after title passage to the CONSUMER/USER. CONSUMER/USER hereby agrees, to the fullest extent permitted by law, to indemnify, save, and hold the PROVDER harmless from any and all claims, demands, losses, and causes of action, which may be asserted by anyone related to the transportation and delivery of said water while title remains in the CONSUMER/USER. 2.4 METERING DEVICE, CALIBRATION, AND READING PROVIDER shall provide the maintenance of the necessary metering device for properly measuring the quantity of water delivery to the CONSUMER/USER. Calibration of such metering device shall be done on a reasonable time schedule, but not less frequently than once every twelve (12) months, or more frequently than once every three (3) months. A meter registering not more than three percent (3%) accuracy above or below the test result shall be deemed to be accurate or non material. The previous reading of any meter disclosed by test to be inaccurate beyond the acceptable range of plus or minus three percent (3%) shall be corrected in accordance with the percentage of inaccuracy found by such tests for a period extending back one-half (1/2) of the time elapsed since the last calibration date but, in no event, further back than a period of six (6) months. If the meter is out of service or out of repair so that the amount of water delivered cannot be ascertained or computed from reading thereof, the water delivered during the period such meter is out of service or out of repair shall be estimated upon the basis the best available data and information. The meter registered shall be read by the PROVIDER at least once a month. All metering equipment, valves, and other appurtenances associated with the metering device and installation shall be and remain the property of the PROVIDER. 2.5 BILLING PROCEDURE A monthly statement of the amount of water determined to be delivered to the CONSUMER/USER through the meter at the Point of Delivery during the preceding month shall be mailed to: CITY MANAGER CITY OF LITTLEFIELD P.O. Box 1267 LITTLEFIELD, TEXAS 79339 Agreement for the Emergency Sale of Wholesale Water — City of Lubbock/City of Littlefield Page 3 of 10 All statements for water delivered shall be due and payable from current revenues available to CONSUMER/USER on or before 28 days after issuance of said statement. A late payment charged of ten percent (10%) per annum shall be charged for failure to pay the current due amount within 28 days after issuance of the statement. If payment is not received by PROVIDER within thirty-five (35) days after the date of issuance of the statement, the statement shall be deemed delinquent. PROVIDER shall notify CONSUMER/USER in writing when any such payment shall become delinquent, and if such delinquency is not removed within forty-two (42) days after the date of issuance of the statement, PROVIDER may, at its discretion, cease deliveries of water to the CONSUMER/USER under the terms of this contract. After water has ceased to be supplied, PROVIDER may, at its discretion, notify CONSUMER/USER of its intention to declare this Contract forfeited and null and void. Upon such notice, CONSUMER/USER shall have thirty (30) days to pay all delinquent charges, late fees, and reconnect charges, in order to reinstate wholesale water services prior to final action by PROVIDER declaring this Contract forfeited and null and void. Upon a declaration by the PROVIDER that this contract is forfeited and null and void, all connections providing the capability to deliver water shall be removed by the PROVIDER. 2.6 AREA OF SERVICE Use of water purchased under this contract shall be solely used within the city limits of the City of Littlefield, the CONSUMER/USER boundaries. No other customer, geographic area or premises, of any kind or nature, shall be served by the CONSUMER/USER, directly or indirectly, with water purchased hereunder. 2.7 TERM OF CONTRACT The term of this contract shall be a period of five (5) years commencing on September 1, 2011 and ending on August 31, 2016. In the event of continued and mutual interest of the terms or similar terms of this agreement, a new contract shall be negotiated, developed, approved, and executed for the period after August 31, 2016, in the event that a new contract is not or can not be agreed upon, there shall be no further discharge or responsibilities of the PROVIDER and CONSUMER/USER. ARTICLE III CONDITIONS OF RECEIVING SERVICE 3.1 CONSUMER/USER FACILITIES CONSUMER/USER agrees and understands that it will install and maintain, at its sole expense, all facilities necessary for receiving, operating and distributing water into its water system from and after the Point of Delivery and that PROVIDER shall be under no obligation whatsoever to bear any of said expenses aforementioned. CONSUMER/USER shall not alter, modify, or change the metering device under any circumstances. 3.2 RATES AND PAYMENT CONSUMER/USER shall pay to PROVIDER, in a timely manner as provided in this contract, those charges for water provided to CONSUMER/USER pursuant to the terms of this Contract. The base monthly rate for the meter installed at the Point of Delivery shall be equal to Agreement for the Emergency Sale of Wholesale Water — City of Lubbock/City of Littlefield Page 4 of 10 the rate established by the City Council of the PROVIDER (City of Lubbock) for meter of equal size as set forth in Section 22.03.084 of Code of Ordinances of the City of Lubbock, as may be amended from time to time; provided, however, that no base monthly rate shall be assessed to CONSUMER/USER unless water is delivered pursuant to this Contract. The flow rate charged for water provided shall be equal to the rate established by the City Council of the City of Lubbock charged to wholesale customers as set forth in Section 22.03.085 of the Code of Ordinances of the City of Lubbock, as may be amended from time to time. The rates charged do not imply or include service by PROVIDER beyond the Point of Delivery; it being the expressed intent of both parties that all expenses on the CONSUMER/USER side of the Point of Delivery shall be the sole expense of CONSUMER/USER. The rates contained in this Contract are negotiated rates that are considered by each party to be fair, just and reasonable. CONSUMER/USER waives any right it may have to appeal any decision affecting the amount paid for water pursuant to this Contract to the TCEQ or any other state agency that has, or may later obtain, jurisdiction over the rates charged by the PROVIDER under this Contract. In the event any user fee is imposed on the delivery, taking, sale, use, or consumption of the water received by CONSUMER/USER from PROVIDER, the amount of the user fee allocable to CONSUMER/USER shall be borne by CONSUMER/USER. When and if PROVIDER shall be required to pay, collect or remit any user fee on water received by CONSUMER/USER, then the user fee that is not included in the rates under this Contract will be added to the charges otherwise payable and shall be the responsibility of CONSUMER/USER. 3.3 SANITARY CONTROL A Reduced Pressure Zone (RPZ) prevention device or air gap shall be maintained at all times by the CONSUMER/USER at the Point of Delivery (i.e., between the two (2) systems). At no time shall a by-pass be installed on or around the backflow prevention device. CONSUMER/USER may allow service by direct pressure, if available, from the PROVIDER'S line to the Point of Delivery. However, PROVIDER is under no obligation to provide water at any pressure above and over pressures necessary to deliver the quantities of water described in Section 2.2, above. CONSUMER/USER shall permit personnel of PROVIDER'S staff to enter upon the property of CONSUMER/USER for the purpose of inspecting any and all facilities of both parties relating to and regarding necessary sanitary control. Should PROVIDER have reasonable grounds to believe that any condition exists which might result in contamination of PROVIDER'S water supply or jeopardize any of their certifications with the Texas Commission on Environmental Quality and/or other federal, state, or local regulatory permits or certifications, the PROVIDER shall notify CONSUMER/USER and CONSUMER/USER shall immediately correct such condition. In the event CONSUMER/USER fails to correct such condition then PROVIDER may, at its sole discretion, either correct the condition, at CONSUMER/USER expense, and include the cost of materials and labor in subsequent billing statements or cease delivering water under this Contract until such condition is corrected to the satisfaction of the PROVIDER. In the event PROVIDER determines that contamination of its water supply actually exists, PROVIDER shall have the absolute right to discontinue service to CONSUMER/USER until such time as said contamination has been eliminated by CONSUMER/USER. Nothing herein shall be construed to impose upon PROVIDER the duty and obligation to make any inspection or to regulate the quality of water beyond the Point of Delivery to CONSUMER/USER and Agreement for the Emergency Sale of Wholesale Water — City of Lubbock/City of Littlefield Page 5 of 10 CONSUMER/USER shall be solely responsible for the operation, maintenance, regulation, employment and prudent management of all facilities beyond the Point of Delivery and the use and delivery of water herein to the citizens of Littlefield. 3.4 WATER CONSERVATION In the event PROVIDER is required Drought Contingency Plan for its system then the same water allotment under such plan a needs served by PROVIDER. to implements its Water Conservation and/or in such event CONSUMER/USER shall receive ; any other customer of similar size and water CONSUMER/USER shall adopt, develop, implement, and maintain water conservation and drought Contingency plans, programs, and rules incorporating loss -reduction measures and management practices, techniques, and technologies at least as promotional of conservation as such plans, programs and rules as developed and adopted by PROVIDER. Such plans shall be designed to reduce the consumption of water, reduced the loss or waste of water, improve the efficiency in the use of water, and increase the recycling and reuse of water. COMSUMER/USER will at all times practice due diligence monitoring of water for beneficial use. CONSUMER/USER shall develop and implement a water conservation plan or water conservation measures using the applicable elements of Title 30, chapter 288, of the Texas Administrative Code, and any successor regulations thereto. In case of a shortage of water resulting from drought, the water to be distributed shall be divided among customers in accordance with Texas Water Code, 11.039. PROVIDER'S obligations under this Contract shall be subject to water conservation plans and drought contingency plans adopted by the Lubbock City Council or required or approved by the Texas Commission on Environmental Quality, or any other or additional federal, state, or local regulatory district or entity with power to require or approve water conservation and drought contingency plans. ARTICLE IV DEFAULTS AND REMEDIES 4.1 NOTICE OF DEFAULT In the event of that either PROVIDER or CONSUMER/USER should breach, fail to comply with or violate any term or provision of this Contract (a "Default") the other party shall promptly notify, with specificity as to the alleged Default, the other respective party of the Default. Except as otherwise provided by this Contract, upon receiving such notice the defaulting party shall have thirty (30) days to cure the Default. Unless this contract provides otherwise, in the event said Default is not cured within the time period described above, with respect to CONSUMER/USER as the defaulting party, then PROVIDER may pursue any and all remedies provided by law, equity, contract or otherwise, including without limitation, declaring this Contract terminated and null and void. Unless this Contract provides otherwise, in the event said Default is not cured within the period described above, with respect to PROVIDER as the defaulting part, then CONSUMER/USER may as its sole and exclusive remedy, either seek specific performance of the terms of this Contract or declare this Contract terminated and null and void. Agreement for the Emergency Sale of Wholesale Water— City of Lubbock/City of Littlefield Page 6 of 10 ARTICLE V MUTUAL CONDITIONS 5.1 FAILURE TO DELIVER PROVIDER does not warrant that the services and deliveries provided for in this Contract will be free from, and PROVIDER is excused from performing hereunder in the event and for the period of, an interruption or stoppage caused by maintenance, repair, substitution, renewal, replacement, or improvement of any of the equipment involved in furnishing of any such services or deliveries of water or caused by floods, drought, alterations, strikes, lockouts, shortages of equipment or material, labor controversies, accidents, or acts of God, the elements, or any other event of "force majeure" or cause beyond the reasonable control of PROVIDER. In the event of a shortage of water, or if distribution of water by PROVIDER to CONSUMER/USER is deemed inappropriate by any regulatory agency or law, the supply of water to CONSUMER/USER under this Contract shall be reduced or ceased as deemed necessary by PROVIDER to protect the interests of its citizens and/or comply with all rules and regulations of any regulatory agency having jurisdiction over the operation of PROVIDER'S facilities. 5.2 NO ASSIGNMENT All promises, undertakings, agreements, covenants and contracts herein contained by or on behalf of either PROVIDER or CONSUMER/USER shall bind the successors and permitted assigns of either party, whether so expressed or not; but neither PROVIDER nor CONSUMER/USER shall have the right to assign this Contract, or any party thereof, without the advance written consent of the other party. 5.3 ENTIRETY AND AMENDMENTS It is expressly stipulated that PROVIDER and PROVIDER'S agents have made no representations, warranties, or promises with respect to the delivery of water and all other matters contained in this Contract, except as herein expressly set forth, and this Contract supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. This Contract may only be amended by an instrument in writing executed by the duly authorized representative of the party against whom the amendment is sought to be enforced. 5.4 WAIVER No failure on the part of PROVIDER at any time to require the performance by CONSUMER/USER of any portion of this Contract shall in any way affect PROVIDER'S right to enforce such provision or any other provision. Nor shall any waiver by PROVIDER of any provision hereof be taken or held to be a waiver of any other provision hereof or any other breach hereof. No rights under this Contract may be waived except by written amendment executed and authorized by the governing bodies of the parties. No officer or agent of PROVIDER of CONSUMER/USER is authorized to waive or modify any provision of the Contract. Agreement for the Emergency Sale of Wholesale Water - City of Lubbock/City of Littlefield Page 7 of 10 5.5 REGULATORY AGENCIES This Contract is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Contract shall be construed as a waiver by any party to the Contract of any right to question or contest any law, order, rule or regulation which may affect the terms and conditions of this Contract in any forum having jurisdiction, and CONSUMER/USER and PROVIDER 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. CONSUMER/USER represents and warrants to PROVIDER that is has obtained and will maintain during the term of this Contract all necessary permits and consents necessary to supply water to the City of Littlefield. 5.6 HEADINGS All heading in this Contract have been inserted for convenience reference only and shall not in any manner be construed as modifying, amending, or affecting in any way the express terms, provisions, and intent hereof. 5.7 EFFECTIVE DATE This Contract shall be effective and binding between the parties hereto as of the date of execution by PROVIDER. 5.8 APPLICABLE LAW AND VENUE THIS CONTRACT SHALL BE CONSTRUED UNDER THE LAWS OF THE STATE OF TEXAS. THE PARTIES AGREE THAT VENUE RELATED TO ANY MATTER BROUGHT HEREUNDER SHALL LIE SOLELY IN LUBBOCK COUNTY, TEXAS. 5.9 LIABILITY AND HOLD HARMLESS TO THE EXTENT PERMITTED BY LAW, CONSUMER/USER SHALL INDEMNIFY AND HOLD HARMLESS AND RELEASE PROVIDER FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, LOSSES, DAMAGES OR LIABILITIES, OF ANY KIND OR NATURE, WHICH ARISE DIRECTLY OR INDIRECTLY, OR ARE RELATED TO, IN ANY WAY, MANNER, OR FORM, THE ACTIVITIES CONTEMPLATED HEREUNDER OR OMISSION OF SUCH ACTIVIES, INCLUDING WITHOUT LIMITATION, SUCH LOSSES, DAMAGES, CLAIMS OR LIABILITIES ARISING FROM OR RELATED TO, IN ANY WAY, MANNER OR FORM, THE NEGLIGENCE OR FAULT OF PROVIDER, ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS, AGENTS AND/OR DESIGNEES. 5.10 NOTICE All notices, payments and communication required or allowed by this Contract, unless otherwise provided herein, shall be in writing and be given either (i) in person or by telephonic facsimile; or (ii) by depositing the notice in the United States mail, postpaid and certified, with return receipt requested, and addressed to the party to be notified. Notice, as herein provided shall be conclusively deemed to have been provided (i) in the event of delivery in person or by telephonic facsimile, when it is actually received; or (ii) in the event of certified mail, as Agreement for the Emergency Sale of Wholesale Water — City of Lubbock/City of Littlefield Page 8 of 10 described above, three (3) days after the notice is deposited in the mail, certified mail, return receipt requested. For the purposes of the notice, the addresses and parties is set forth immediately below. CONSUMER/USER CITY OF LITTLEFIELD ATTN: Mayor Shirley Mann P.O Box 1267 LITTLEFIELD, TEXAS 79339 FACSIMILE 806-385-4085 With Copies to: Slater C. Elza Underwood Law Firm 500 South Taylor, Ste. 1200 Amarillo, Texas 79101 Facsimile 806-349-9474 -;• li►_; CITY OF LUBBOCK ATTN: Aubrey Spear, P.E., Director of Water Resources P.O. Box 2000 LUBBOCK, TEXAS 79457 With Copies to: City Manager P O Box 2000 LUBBOCK, TEXAS 79457 FACSIMILE 806-775-2051 Either party may change its address by giving written notice of the change to the other party at least fifteen (15) days before the change becomes effective. 5.11 AUTHORITY CONSUMER/USER represents and warrants to PROVIDER, and PROVIDER represents and warrants to CONSUMER/USER, respectively, that each is a municipality of the State of Texas and is authorized to enter into this Contract and perform each and every term and provision of this Contract, and will continue to be duly authorized to so perform during the term hereof. 5.12 PARTIAL INVALIDITY In the event one or more of the provisions contained in this Contract shall be invalid, illegal or unenforceable in any respect under any law, rule or regulation, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. 5.13 CURRENT REVENUES Each party paying for performance under this Contract shall make all payments from current Revenues available to the paying party. EXECUTED as of the 11th day of August , 2011. CITY OF LITTLEFIELD CITY OF LUBBOCK Bye By: , SHIRLEY IWNN, MAYOR TOM MARTIN, MAYOR ATTEST:(?j 7Z4y�'ATTEST: Agreement for the Emergency Sale of Wholesale Water — City of Lubbock/City of Littlefield Page 9 of 10 Rebecha Garza, City Secretary APPROVED AS TO CONTENT. LL" � a- io 0 d M rsha Reed, P.r, Chief Operations Officer Au rey Spear . C, Qtr&ctor of Water Resources APPROVED AS TO QiiUj _ - - - Agreement for the Emergency Sale of Wholesale Water — City of Lubbock/City of Littlefield Page 10 of 10