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HomeMy WebLinkAboutResolution - 2987 - Agreement - Lake Ransom Canyon - Waste Water Disposal Permit - 12/15/1988JCR:dw RFSnI IITTnN Resolution #2987 December 15, 1988 Item #30 Item #32 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 concerning the City of Lubbock's water disposal permit with the Town of Ransom Canyon, 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. THAT subject to the terms of the above Agreement, 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 a Contract for City of Lubbock to supply water to the Town of Ransom Canyon, 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. THAT the water department is hereby authorized and directed to grant permission as required by City Code §§28-31 for the Town of Ransom Canyon to supply water to other persons, subject to the conditions and limitations contained in the agreement. THAT there is adequate untreated water supply and treatment capacity and treated water storage, pumping, and distribution capacity within the City's water system to satisfy the demands of the Town of Ransom Canyon as specified in the agreement, together with all other service commitments of the City that are existing or anticipated at the time the wholesale customer applies for service. _ Passed by the City Council this /&,e,-6 day of _4,� , 1988. . C. M6MTNN, MAYOR nette Boyd, City Secretary APPROVED AS TO CONTENT: APPROVED AS TO FORM: I' , J7 - Tarry nningham, y Manager n C. Ros , Jr., City Attorney THE STATE OF TEXAS COUNTY OF LUBBOCK $ Resolution #2987 Item #3D AGREEMENT REGARDING LUBBOCK WASTEWATER DISPOSAL PERMIT This Agreement ("Release and Agreement") is made and entered into by and between the City of Lubbock (herein called "Lubbock"), 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 the Town of Ransom Canyon (herein called "Ransom"), a Texas municipal corporation located in Lubbock County, acting by and through its undersigned duly authorized officer, as authorized by specific action of its City Council. RECITALS 1. Lubbock filed an application with the Texas Water Commission ("Commission") requesting an amendment to Permit No. 10353-02 for authorization to modify its sewage treatment and disposal facilities; 2. Ransom protested the application, alleging that Lubbock's wastewater disposal practices impaired Ransom's water supply; and 3. Bonafide disputes and controversies exist between the parties, both as to liability and the amount thereof, if any, and f THE STATE OF TEXAS COUNTY OF LUBBOCK $ Resolution #2987 Item #3D AGREEMENT REGARDING LUBBOCK WASTEWATER DISPOSAL PERMIT This Agreement ("Release and Agreement") is made and entered into by and between the City of Lubbock (herein called "Lubbock"), 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 the Town of Ransom Canyon (herein called "Ransom"), a Texas municipal corporation located in Lubbock County, acting by and through its undersigned duly authorized officer, as authorized by specific action of its City Council. RECITALS 1. Lubbock filed an application with the Texas Water Commission ("Commission") requesting an amendment to Permit No. 10353-02 for authorization to modify its sewage treatment and disposal facilities; 2. Ransom protested the application, alleging that Lubbock's wastewater disposal practices impaired Ransom's water supply; and 3. Bonafide disputes and controversies exist between the parties, both as to liability and the amount thereof, if any, and a by reason of such disputes and controversies the parties hereto desire to compromise and settle all claims and causes of action (if any) of any kind whatsoever which Ransom has or may have in the future arising out of the application, hereinabove referred to, and the alleged impairment of Ransom's water supply as a result of Lubbock's wastewater disposal operations and intend that the full terms and conditions of the agreement be set forth in this document. AGREEMENT For and in consideration of the mutual promises, covenants, obligations, and benefits described in this Agreement and as further inducement for the City of Lubbock executing a water supply contract with Ransom, Lubbock and Ransom agree as follows: Section 1. Withdrawal of Protest. Upon execution of this Release and Agreement, Ransom will file a motion with the Commission requesting the dismissal of Ransom's protest of Lubbock's application. If Ransom does not file the motion within ten (10) days after the effective date of this Agreement, Ransom will be in default of this Agreement and Lubbock may terminate this Agreement. Ransom, its assigns, successors, agents, servants and employees, and all persons, natural or corporate, in privity with it or any of them, hereby contract and agree that it 2 shall not interfere in any way with the application to amend Permit No. 10353-02 issued by the Texas Water Commission or any amendments to or renewals thereof. Lubbock may amend or allow the amendment of the pending application, or subsequently file a new application and Ransom shall not protest, or cause to be protested, such application. Section 2. Public Property. Lubbock and the Town of Ransom Canyon have agreed upon a contract fixing terms of water service by Lubbock to Ransom including terms for the calculation of rates to be charged for such service (the "Water Supply Contract"). Ransom authorizes, to the extent capable under existing law, Lubbock's use of streets, alleys, and general utility or other easements of Ransom for construction, operation and maintenance of Lubbock's water system to point of delivery of water to wholesale customer. In the event Ransom does not currently have an easement over, under, on or upon a public street, alley or other right-of-way, whether public or private, it will assume the affirmative duty to acquire such easement, at its cost, for use by the City. If Lubbock's water system is placed in, on, above, or across any street, alley, or easement, Lubbock agrees to use reasonable efforts not to unreasonably interfere with the lawful use of the street, alley, or easement, but Lubbock shall have the right to temporarily interfere with such usage when necessary or convenient for the installation, inspection, repair or replacement of the facilities. Lubbock shall restore lands, 3 pavement or improvements resulting from exercise of the rights provided in this section, including the cost of relocation of any facilities located within any such easement, but Ransom shall pay the cost of relocating any of property belonging to Ransom or other persons, if this cost is not borne by Ransom. Section 3. No Interference. Ransom, its assigns, successors, agents, servants and employees, and all persons, natural or corporate, in privity with it or any of them, hereby contract and agree that they shall not interfere in any way with the wastewater disposal projects authorized under Permit No. 10353-02 issued by the Texas Water Commission or any amendments to or renewals thereof. Ransom, its assigns, successors, agents, servants and employees, and all persons, natural or corporate, in privity with it or any of them, hereby contract and agree that they shall not interfere in any way with Lubbock's efforts to obtain authorization to discharge treated effluent into the waters of the State of Texas, provided the quality of the effluent meets or exceeds the limitations described in Effluent Set 2-N in Texas Water Commission Rule 6309.4 as of the date this Agreement is signed. Lubbock may terminate the Water Supply Agreement without risk of liability to Ransom if Ransom, its assigns, successors and agents, in privity with it or any of them, protest Lubbock's application to amend the permit. 4 Section 4. Release. Ransom, its successors, assigns, and all persons, natural or corporate, in privity with it has this day released and by these presents do release, acquit, and forever discharge Lubbock, its successors, assigns, agents, servants, and employees, and all persons, natural or corporate, in privity with it, from any and all claims or causes of action of any kind whatsoever, at common law, in equity, statutory or otherwise.which Ransom has, or might have, known or unknown, now existing or that might arise hereafter, directly or indirectly, attributable to occurrences or transactions involving Ransom's water supply. Section 5. Effective Date. This Release and Agreement shall take effect and be binding on each party as of the date which execution of this Release and Agreement is made by all parties hereto. Section 6. Governing Law. This Release and Agreement shall be enforced and construed in accordance with the laws of the State of Texas. Section 7. Agreement Prepared Jointly by Both Parties' Attorneys. This Release and Agreement has been prepared by the joint efforts of the respective attorneys for each of the parties. k Section 8. Acknowledgment of Entire Release and Agreement. Each party acknowledges that it has carefully read this instrument, including all documents or instruments that it refers to; that this instrument expresses the entire Release and Agreement between the parties concerning the subjects that it purports to cover; that each party has executed the Release and Agreement freely and of his or her own accord; and that it is expressly understood that the terms hereof are contractual and not merely recitals. Section 9. partial Invalidity. If any provision, word, phrase, clause, sentence or paragraph of this Release and Agreement or the application thereof to any person or circumstance is or shall ever be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the Release and Agreement and the application of such provision, word, phrase, clause, sentence or paragraph or other part of this Release and Agreement to other persons or circumstances shall nevertheless survive and continue in full force and effect without being impaired or invalidated in any way. Section 10. No Admission of Liability. It is expressly understood and agreed that the terms hereof are contractual and not merely recitals and that the agreements herein contained and the consideration transferred is to compromise doubtful and disputed claims, avoid litigation, buy peace, and that no 2-1 payments made nor released or other consideration given shall be construed as an admission of liability, all liability being expressly denied. SECTION 11. Acknowledgement of Release and Agreement. Ransom acknowledges and warrants that it has carefully read this instrument, including all documents that it refers to; that this instrument expresses the entire Release and Agreement; that Ransom fully understands this instrument to be a compromise, settlement and release of all claims, known or unknown, present or future, that it has or may have against Lubbock, arising out of the alleged contamination of Ransom's water supply. Ransom acknowledges and warrants that it has the authority and is legally competent to execute this Release and Agreement, and that it does so of its own free will and accord without reliance on any representation of any kind or character not expressly set forth herein. Section 12. Multiple Originals. This Release and Agreement shall be executed in two (2) counterparts, both of which shall, for all purposes, be deemed to be an original, and all such counterparts shall together constitute and be one and the same instrument. 7 EXECUTED as of the � day ofZ6.,een.�..*, 1988. ATTEST: S d re ary MAILING ADDRESS for notice: Town of Ransom Canyon 24 Buffalo Drive Ransom Canyon, Texas 79366 TOWN OF RANSOM CANYON BY: Mayor 8 ACCEPTED AND EXECUTED as of the ,:qday of , 1988. THE CITY OF LUBBOCK C` BY: ` C. MCMIN9, MAYOR ATTEST: Randtte Boyd, City `Secretary APPROVED AS TO FORM: n C. Ross, Jr., Citi Attorney MAILING ADDRESS for notice: City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 9 ACKNOWLEDGEMENT THE STATE OF TEXAS COUNTY OF LUBBOCK § BEFORE ME, the undersigned, a Notary Public in and for said county and state, on this day personally appeared em -s , known to me, who executed the foregoing nstrument and acknowledged to me that the same was the act of the Town of Ransom Canyon, a Texas municipal corporation, and that he executed the same as the act of such municipal corporation for the purposes and consideration therein expressed, and in the capacity therein stated; that he executed the same as a free and voluntary act and deed after having it fully explained to him, and after having read it fully, and after realizing the effect thereof to be a full and final release and discharge of the City of Lubbock for any matter or thing dealt with in the foregoing instrument; and that the same was executed by him without any threat, force, fraud, duress, or representation of any kind by any person whomsoever; and that the said person at the time of the execution of the release was completely sober, sane, and capable of understanding the character of his acts and deeds and was in complete charge of all of his faculties and capable of executing this instrument and of understanding the significance of his acts. GIVEN under my hand and seal of office, this / day of Nota Publ c n and f - the State of Texas Typed Name My Commission Expires: 10 STATE OF TEXAS COUNTY OF LUBBOCK i Resolution #2987 .December 15, 1988 Item #32 KNOW ALL MEN BY THESE PRESENTS: This Contract is made by and between the 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 the Town of Ransom Canyon (herein called "WHOLESALE CUSTOMER"), a municipal corporation in Lubbock County, acting by and through its undersigned duly authorized president, as authorized by specific action of its Board of Directors. 1. RECITALS 1-1. This Contract is made to provide access to CITY'S existing water system and to define the terms and conditions under which the CITY will construct and maintain water system capacity adequate to provide a specific volume of water for WHOLESALE CUSTOMER'S water system to make water available for property located within the corporate limits of the Town i of Ransom Canyon, Texas as of January 1, 19st. 1-2. This Contract is entered into in compliance with the settlement and compromise agreement between CITY and WHOLESALE CUSTOMER of even date herewith. For and in consideration of the mutual agreement, covenants, obligations, and benefits of this Contract, the CITY and WHOLESALE 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 in the "Policies" referred to in Paragraph 4. of this Contract. Words and phrases used herein which are not defined in said "Policies" shall be construed and interpreted in accordance with accepted construction and usage in the operation of municipally -owned water utilities at the time this Contract is signed. 3. WHOLESALE CUSTOMER APPLIES FOR WATER SERVICE WHOLESALE CUSTOMER makes application to CITY that it furnish water service by providing access to its existing water system and by constructing and maintaining water system capacity adequate to provide water service to WHOLESALE CUSTOMER'S water system for the property described in 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 WHOLESALE CUSTOMER to CITY and to each 2 other under the terms of this Contract, provided however, the obligation of CITY to provide service is conditioned upon compliance by WHOLESALE CUSTOMER with the CITY'S "Policies for Water Service" and amendments thereto as expressed by Chapter 28 of the Lubbock City Code. Said Policies being on file with the City Secretary. And the Parties agree to additional terms and conditions as follows: 5. CITY'S "POLICIES" PART OF CONTRACT CITY'S "Policies" and amendments thereto on file at the office of the CITY'S city secretary are made a part hereof. 6. CITY SHALL FURNISH CERTAIN WATER SYSTEM FACILITIES AND WHOLESALE CUSTOMER SHALL COMPLY WITH CERTAIN CONDITIONS OF SERVICE; MUTUAL CONDITIONS; TERM 6-1. CITY Shall Furnish Facilities The CITY shall furnish its existing water system facilities and additional water system facilities as are necessary to provide water service to WHOLESALE CUSTOMER'S water system for the property herein described under such conditions as are provided as follows: 3 6-1.1. Quality and Treatment Potable water of similar quality supplied to citizens and residents of the City of Lubbock, Texas, treated by disinfectants and such other treatment as may in the future be directed by the City Council of the City of Lubbock and meeting the applicable quality standards of the Texas State Department of Health and other local, State and Federal governmental agencies at the point of delivery hereinafter provided during the term of this Contract or of any renewal or extension thereof. CITY may furnish such supply out of surface water, ground water, or both, at its discretion. 6-1.2. Quantity Quantities of water as may be required by WHOLESALE CUSTOMER not to exceed any of the following limitations: 820,000 gallons (2.516 acre-feet) during any 24-hour period of time; or 299,300,000 gallons (918.493 acre-feet) during any 365 -day year period of time, and 300,120,000 gallons (921.009 acre-feet) during any 366 -day year period of time, as measured at the point of delivery. The point of delivery will be at a measuring device located within 100 -feet of a connection to an existing 6 -inch pipeline between WHOLESALE CUSTOMER'S water well no. 7 and WHOLESALE CUSTOMER'S ground :1 storage tank. The location of the measuring device, connection, water well no. 7, and ground storage tank are shown on the vicinity map attached hereto as Exhibit "A" and made a part hereof for all purposes. 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 flows (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 master metering station and remotely from within CITY. The volumes specified in this paragraph shall be subject to and limited by the CITY'S power to conserve and ration water as provided by Sections 6-2.6 and 6-3.1 of this Contract and shall be contingent upon completion of facilities necessary or convenient to deliver the water from the CITY'S existing facilities to the point of delivery. WHOLESALE CUSTOMER shall pay CITY the annual minimum charge as described in paragraph 6-2.2 of this Contract whether or not WHOLESALE CUSTOMER actually takes delivery of water under this Contract. Title to the water delivered by CITY to WHOLESALE 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 reasonable flow rate adequate to meet maximum daily demand at an adequate pressure at meter located at the point of delivery. Point of delivery as used in this Contract shall mean the point at which the watersupplied under this Contract passes through the meter described in Section 6-1.2 of this Contract and exits said meter into the facilities owned or operated by WHOLESALE CUSTOMER as shown in Exhibit "A", attached hereto and made a part hereof. 6-1.4. Metering Equipment Installation and maintenance, at its own expense at the point of delivery, of the necessary metering equipment and required devices of standard type for properly measuring the quantity of water delivered to the WHOLESALE CUSTOMER and calibration of such metering equipment within a reasonable time after request by the WHOLESALE CUSTOMER, 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%) 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 2 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 the CITY at least once a month. 6-1.5. Billing Procedure A monthly statement of the amount of water determined to be consumed by wholesale customer through the meter described in Section 6-1.2 of this Contract during the preceding month shall be mailed to WHOLESALE 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 WHOLESALE CUSTOMER if said customer fails to pay its bill on or before the thirty (30) days from date of issuance. In the event WHOLESALE 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 7 full. If payment is not received by the CITY within thirty (30) days after the due date, the statement shall be deemed delinquent. The CITY shall notify the WHOLESALE 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, the CITY may, at its discretion, cease supplying water to the WHOLESALE CUSTOMER under the terms of this Contract or exercise its lien upon WHOLESALE CUSTOMER'S revenues as provided by this Contract (see paragraph 8). After water has ceased to be supplied, the CITY may, at its discretion, notify the WHOLESALE CUSTOMER of its intention to declare this Contract forfeited and null and void. Upon such notice, the WHOLESALE CUSTOMER shall have thirty (30) days to pay all delinquent charges, reconnect charges, and penalties in order to reinstate water supplies prior to final action by the CITY declaring this Contract forfeited and null and void. 6-2. Conditions of Service WHOLESALE CUSTOMER shall comply with continuing conditions of receiving service as follows: 6-2.1. Wholesale Customer's Facilities WHOLESALE CUSTOMER agrees and understands that it will install and maintain at its sole expense all facilities necessary for WHOLESALE CUSTOMER to operate its water system 8 from the point of delivery as described in this Contract and that the City of Lubbock shall be under no obligation whatsoever to bear any of said expenses aforementioned. The design and construction of the facilities between the meter and the air gap shall be subject to review and approval by CITY. After installation of the meter and airgap facilities, WHOLESALE CUSTOMER shall not alter, modify, or improve the meter and airgap facilities without the prior approval of the proposed changes by CITY. The design and construction of the facilities, and any repairs, modifications, or improvements to the facilities shall comply with all federal, state, and local regulatory requirements. 6-2.2. Rates and Payment Date Pay to the CITY no later than the due date specified in the statement for water delivered pursuant to the terms of this Contract those charges for wholesale water as set forth within said statement. The charges for wholesale water shall be in accordance with the rates, for WHOLESALE CUSTOMERS outside the city limits, established by Ordinance of the City Council of the City of Lubbock, for the class of customer hereinabove mentioned, which Ordinance will be filed for public record with the City Secretary of the City of Lubbock and reference to which is hereby made as if fully set forth herein. The Ordinance establishing rates for the 9 service hereinabove mentioned may be, from time to time, modified or amended and in the event of such modification or amendment the reference to the Ordinance above set forth shall be construed so as to apply to the last modification or amendment. By execution of this Contract, WHOLESALE CUSTOMER stipulates that the methodology relied on by the City Council of the City of Lubbock in establishing the rates as set forth in Exhibit B is reasonable and fair. In the event the Ordinance establishing the rates for water delivered pursuant to this Contract is modified or amended and such modification or amendment results in a new or revised rate applicable to sales under this Contract then in such event, CITY shall furnish WHOLESALE CUSTOMER with a revised rate not less than sixty (60) days prior to the effective date thereof, together with the costs and tables used in calculating the rate, as per example outlined in Exhibit "B," attached hereto. The rates charged do not imply or include service by the CITY beyond the CITY'S point of delivery; it being the intent of this Contract that all expenses on WHOLESALE CUSTOMER'S side of the point of delivery as defined in this Contract shall be the sole expense of WHOLESALE CUSTOMER. WHOLESALE CUSTOMER shall pay CITY an annual minimum charge of $8,277.79 payable in twelve equal monthly installments for thirty (30) years for the proportionate costs of 10 installing capital improvements necessary to furnish water to wholesale customers. In addition, WHOLESALE CUSTOMER shall pay to CITY on a monthly basis the rate for water delivered to WHOLESALE CUSTOMER as expressed in Exhibit B attached hereto and made a part hereof together with any future rate charges adopted by the City Council of the City of Lubbock. The first annual minimum charge monthly payment will become due at the time of the first monthly billing. If a court, the Texas Water Commission or its successors, or any federal or state regulatory authority finds that CITY rates or policies for delivering water to WHOLESALE CUSTOMER under this Contract are unenforceable, CITY has the option to terminate this Contract without liability to WHOLESALE CUSTOMER. By signing this Contract, WHOLESALE CUSTOMER stipulates and agrees that CITY and its other customers will be prejudiced if WHOLESALE CUSTOMER avoids the obligation to pay the rates for water specified in this Contract while accepting the benefits of obtaining water from CITY. Nothing in this Contract shall be construed as constituting an undertaking by CITY to furnish water to WHOLESALE CUSTOMER except pursuant to the terms of this Contract. If WHOLESALE CUSTOMER initiates in any proceeding regarding CITY'S rates and policies under this Contract and advocates a position that is adverse to CITY and CITY prevails, WHOLESALE CUSTOMER shall pay CITY for CITY'S expenses in the 11 proceeding within fifteen (15) days after CITY'S demand for payment. WHOLESALE CUSTOMER stipulates and agrees that the rates and policies specified in this Contract are just and reasonable. 6-2.3. Advance Deposit Make an advance deposit in the amount of $5,000.00 cash or by letter of credit in like amount approved by CITY which sum is considered to be reasonably adequate to secure WHOLESALE CUSTOMER'S future monthly water charges during the first twelve (12) months after this Contract is signed on behalf of CITY. The initial deposit shall be paid prior to the CITY furnishing water to WHOLESALE CUSTOMER. On or before the end of the twelfth (12) month after this Contract is signed on behalf of CITY and annually thereafter, upon request by CITY, WHOLESALE CUSTOMER shall deposit (within ten [10] days of such request) any additional money with CITY required to make the WHOLESALE CUSTOMER'S deposit equal to the product of multiplying the WHOLESALE CUSTOMER'S monthly bill, as averaged over the prior twelve (12) month period, by a factor of three (3). This deposit or letter of credit shall be collected and held by the CITY for the term of this Contract and will not accrue interest in favor of the WHOLESALE CUSTOMER during the time in which it is retained by the CITY. In the event that WHOLESALE CUSTOMER has paid its account in accordance with the terms of this 12 Contract for a period of five (5) years from its execution, then in such event the cash deposit or letter of credit shall be returned to WHOLESALE CUSTOMER and no further deposit shall be required. 6-2.4. Service To and Definition of Retail Customers Limit service to retail customers within the defined service area of the WHOLESALE CUSTOMER as shown on Exhibit "A", attached hereto. The defined service area as shown is the corporate limits of the Town of Ransom Canyon as described in the application for incorporation approved by the county judge of Lubbock County, Texas. A retail customer is defined as a single or multiple family dwelling, or a single commercial customer. The limitations upon service to retail customers within the defined service areas shall apply to water delivered by CITY to WHOLESALE CUSTOMER and water received by WHOLESALE CUSTOMER from any other source, specifically including, but not limited to, WHOLESALE CUSTOMER'S wells. For purposes of this Contract, a commercial customer is a customer of WHOLESALE CUSTOMER which uses the water for purposes other than household use. Notwithstanding anything contained herein to the contrary a retail customer shall not include a political subdivision, corporation, partnership, or individual engaged in the water supply business. The WHOLESALE CUSTOMER shall prohibit the resale or transfer of water delivered by the CITY under this 13 Contract by any of WHOLESALE CUSTOMER'S retail customer or members to any other party, unless the written consent of the CITY is obtained in advance. 6-2.5. Sanitary Control Maintain at all times an air gap, or other device or method acceptable to CITY for maintaining sanitary control, between the WHOLESALE CUSTOMER'S existing pipeline that transports the water received from CITY and the WHOLESALE CUSTOMER'S existing ground storage tank located as shown on the vicinity map attached hereto as Exhibit "A." The length of the air gap shall be not less than twice the diameter of the pipe at the point of delivery. WHOLESALE CUSTOMER shall provide and maintain any and all devices and methods to maintain sanitary control and prevent back-flow from WHOLESALE CUSTOMER'S system to CITY'S system as required or suggested by federal, state, or local regulatory authorities or by CITY. WHOLESALE CUSTOMER shall not allow service by direct pressure from the CITY'S supply. WHOLESALE CUSTOMER shall permit personnel of CITY to enter upon the property of WHOLESALE CUSTOMER for the purpose of inspecting any and all facilities to determine whether WHOLESALE CUSTOMER is maintaining the required air gap or sanitary control measures. Should CITY have reasonable grounds to believe that any condition exists which might result in contamination of CITY'S water supply, or jeopardize CITY'S 14 certification with the State Health Department or other federal, state or local regulatory authorities, then CITY shall notify the WHOLESALE CUSTOMER and WHOLESALE CUSTOMER shall immediately correct such condition. In the event WHOLESALE CUSTOMER fails to correct such condition the CITY may, at its sole discretion either correct the condition, at WHOLESALE CUSTOMER'S cost, and include the cost of materials and labor in subsequent billing statements from CITY to WHOLESALE CUSTOMER or cease delivering water under this Contract until such condition is corrected to the satisfaction of the CITY. In the event the CITY determines that contamination of CITY'S water supply by WHOLESALE CUSTOMER exists, CITY shall have the absolute right to discontinue service to WHOLESALE CUSTOMER until such time as said contamination has been eliminated by WHOLESALE CUSTOMER. Nothing herein shall be construed to impose upon the CITY the duty and obligation to make any inspection or to regulate the quality of water beyond CITY'S metering point to WHOLESALE CUSTOMER, and the WHOLESALE CUSTOMER shall be solely responsible for the operation, maintenance, regulation and employment of all facilities beyond the metering point, and the regulation of the use of all water received by it at the metering point. 15 6-2.6.tWater Conservation Comply with CITY'S water conservation and rationing plans and ordinances and require its retail customers to comply with CITY'S water conservation and rationing plans to the extent necessary to conserve and ration the water delivered by CITY to WHOLESALE CUSTOMER under this Contract. WHOLESALE CUSTOMER shall cooperate with and assist CITY in developing, implementing, and maintaining water conservation plans, programs, and rules incorporating loss -reduction measures and management practices, techniques, and technologies designed to insure water made available under this Contract is used in an economically -sensitive manner and designed to reduce the consumption of such water, reduce the loss or waste of such water, improve the efficiency in the use of such water, and increase the recycling and reuse of such water. WHOLESALE CUSTOMER shall furnish CITY a copy of such conservation plan from time to time, as requested by the CITY within ten (10) days of said request. WHOLESALE CUSTOMER agrees that if water supplies or services are curtailed within CITY, CITY may impose a like curtailment on deliveries of water to WHOLESALE CUSTOMER under this Agreement and WHOLESALE CUSTOMER will cooperate by imposing conservation measures upon its sales of water made available under this Contract. CITY'S obligations under this Contract shall be subject to water conservation plans and drought 16 contingency plans adopted by CITY or required or approved by the Texas Water Commission, the Texas Water Development Board, or any other or additional federal, state, or local regulatory authority with power to require or approve water conservation and drought contingency plans. 6-2.7. Public Property CITY will assume the affirmative duty to acquire easements, at its cost, for use by the CITY between CITY'S water system as it exists on the date this Contract is signed and the location of the measuring device at the point of delivery as shown described in this Contract and shown on Exhibit "A." WHOLESALE CUSTOMER shall acquire, at its expense, all easements, approvals, facilities required between the measuring device and WHOLESALE CUSTOMER'S system. 6-2.8. Right of Entry Authorize CITY, its agents, employees and contractors, entry upon the WHOLESALE CUSTOMER'S property where WHOLESALE CUSTOMER'S wells are located for the purpose of obtaining water samples and performing tests to determine actual or potential production. The entry, sampling, and testing shall be performed at reasonable times, with advance notice to WHOLESALE CUSTOMER. WHOLESALE CUSTOMER may have a representative present during any entry upon the property. CITY'S entry upon the property and its sampling and testing 17 shall be performed in compliance with WHOLESALE CUSTOMER'S rules and regulations adopted to protect persons on the property and the sanitary condition of WHOLESALE CUSTOMER'S water supply. 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 case by reason of Force Majeure either party hereto shall be rendered unable, wholly or in part, to carry out its obligations under this Contract, other than the obligation of the WHOLESALE CUSTOMER to make the payments required under the terms hereof, to comply with applicable federal, state, and local regulatory authorities having or asserting jurisdiction over the operation of WHOLESALE CUSTOMER'S water supply, and to meet sanitary control requirements as hereinabove set forth, then if such party shall give notice and full particulars of each Force Majeure in writing to the 18 other party within a reasonable time after occurrence of the event or cause relied on, the obligation of the party filing such notice, so far as it is affected by such Force Majeure, shall be suspended during the continuance of the inability then claimed, but for no longer period, and such party shall endeavor to remove or overcome such inability with all reasonable dispatch. The terms "Force Majeure" as employed herein shall mean, but without limitation, acts of God, strikes, lockouts, or other industrial disturbances, acts of public enemy, war, orders of any kind of the Government of the United States or the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances, explosions, breakage or accidents to machinery, pipelines or canals, partial or entire failure of water supply and inability on the part of the CITY to deliver water hereunder, or of the WHOLESALE CUSTOMER to receive water hereunder, on account of any other causes not reasonably within the control of the party claiming such inability. The settlement of strikes and lockouts shall be entirely within the discretion of the party having the difficulty, and the above requirement that any Force Majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes and lockouts as according to the demands of the opposing party 19 or parties when such course is unfavorable in the judgment of the party having the difficulty. In the event of a shortage of water, or the supply of water available to CITY is otherwise diminished, the supply of water to the WHOLESALE CUSTOMER under this Contract shall be reduced or diminished in the same ratio or proportion as the supply to other customers comparable to WHOLESALE CUSTOMER is reduced or diminished. 6-3.2. Reaulatory Agencies This Contract is subject to such rules and regulations as may now exist and as may be adopted by the City of Lubbock, to comply with the Texas State Department of Health and other local, State and Federal governmental agencies, and CITY and WHOLESALE 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 including, but not limited to, the rate -fixing power of the Texas Water Commission. 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 20 having jurisdiction, and WHOLESALE 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 WHOLESALE CUSTOMER shall bind the successors and assigns of either party, whether so expressed or not; but neither CITY nor the WHOLESALE 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. WHOLESALE CUSTOMER consents to an assignment of this Contract by CITY to a water conservation and reclamation district created under authority of TEX.CONST. art. XVI, $59. 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 the water supply or services except as herein expressly set forth, and no rights, easements, entitlements, or licenses are acquired 21 by WHOLESALE CUSTOMER by implication or otherwise except as expressly set forth in this Contract. 6-3.4. Notice of Violation In the event that either the CITY or the WHOLESALE 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 the CITY or the WHOLESALE 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. 22 6-3.5. Title Title to all water supplied hereunder shall be in the CITY up to the point of delivery, at which point title shall pass to the WHOLESALE 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 water while title remains in such party. 6-4. Term of Contract The term of this Contract shall be a period of thirty (30) years from its effective date. WHOLESALE CUSTOMER is given an option and contract for a like period provided that at least twenty-four (24) months prior to the expiration of the initial term of this Contract, CITY and WHOLESALE CUSTOMER, in good faith begin to negotiate another contract pertaining to purchase of water from CITY by WHOLESALE CUSTOMER containing mutually agreeable terms, and conditions. If another contract is not consummated, CITY shall not terminate service until WHOLESALE CUSTOMER has had a reasonable time (such time not to exceed two [2] years), in which to procure alternate service and this Contract shall remain in force until WHOLESALE CUSTOMER procures 23 alternative service or the expiration of two (2) years,which ever event occurs first. 7. CUMULATIVE REMEDIES Recognizing that failure in the performance of WHOLESALE CUSTOMER'S or CITY'S obligations under this Contract could not be adequately compensated in money damages alone, WHOLESALE CUSTOMER or CITY agree in the event of any default on their part that CITY or WHOLESALE CUSTOMER shall have available to them the equitable remedy of mandamus and specific performance in addition to any other legal or equitable remedies (other than termination except as provided by this Contract) which may also be available to CITY. S. PLEDGE OF REVENUES WHOLESALE CUSTOMER hereby pledges the gross revenues from WHOLESALE CUSTOMER'S water system to the CITY to pay the charges due CITY under this Contract, and in the event of default, the CITY may exercise its rights to such funds by any available procedure, provided the source of the funds for WHOLESALE CUSTOMER'S payment to CITY under this Contract shall not be limited to that source of revenue. Unless otherwise specifically provided in writing by subsequent agreement between CITY and WHOLESALE CUSTOMER, CITY shall never have the right to demand payment by WHOLESALE CUSTOMER 24 of any obligation assumed or imposed on it under and by virtue of this Contract from funds raised or to be raised by taxation of property. WHOLESALE CUSTOMER represents and covenants that the services to be obtained pursuant to this Contract are essential and necessary to the operation of WHOLESALE CUSTOMER and its own water facilities, and that all payments to be made hereunder by it will constitute reasonable and necessary "operating expenses" of the WHOLESALE CUSTOMER'S water system, within the meaning of Article 1113, Vernon's Texas Civil Statutes and any amendments thereto, if appropriate, and the provisions of all ordinances authorizing the issuance of all future bonds of the WHOLESALE CUSTOMER which are payable from revenues of the WHOLESALE CUSTOMER'S water system shall recognize and recite this provision. WHOLESALE CUSTOMER agrees to establish and collect such rates and charges for its services to be supplied by its system as will make possible the prompt payment of all expenses of operating and maintaining its system including the payments contracted hereunder, and the prompt payment of the principal of and interest on its obligations, if any, payable from the revenues of its water systems. WHOLESALE CUSTOMER agrees that, in addition to all other remedies provided herein or at law or in equity, CITY shall be entitled to a writ of mandamus issued by a court of competent jurisdiction compelling and requiring WHOLESALE CUSTOMER to take all 25 9. 10. actions covenanted herein and to make prompt payment of the payments contracted to be made herein and to observe and perform the covenants, obligations and conditions imposed in this Contract. WAIVER No failure on the part of the CITY at any time to require the performance by WHOLESALE CUSTOMER of any portion of this Contract shall in any way affect the CITY'S right to enforce such provision or any other provision. Nor shall any waiver by the CITY 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 and no modification or amendment to this Contract may be made except by written amendment executed by the parties. No officer or agent of WHOLESALE 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 WHOLESALE CUSTOMER'S authorized representatives. 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. 26 11. OTHER CHARGES In the event any sales or use taxes, or taxes or user fee of any similar nature are imposed on gathering, impounding, taking, sale, use, or consumption of the water received by WHOLESALE CUSTOMER from CITY, the amount of the tax or user fee allocable to WHOLESALE CUSTOMER shall be borne by WHOLESALE CUSTOMER. Whenever CITY shall be required to pay, collect, or remit any tax or user fee on water received by WHOLESALE CUSTOMER, then the tax or user fee will be added to the charges otherwise payable to CITY under this Contract and WHOLESALE CUSTOMER shall promptly pay or reimburse CITY for the tax or user fee in the manner directed by CITY. 12. NOTICES All notices, payments and communications ("notice") required or allowed by this Contract shall be in writing and be given by depositing the notice in the United States mail postpaid and registered or certified, with return receipt requested, and addressed to the party to be notified. Notice deposited in the mail in the previously described manner shall be conclusively deemed to be effective from and after the expiration of three (3) days after the notice is deposited in the mail. Notice given in any other manner shall be effective only if and when received by an officer or the designated representative of the party to be notified. For 27 purposes of notice, the addresses of the designated representatives for receipt of notice for each of the parties shall be shown on the signature pages of this Contract. 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. 13. PLACES OF PERFORMANCE All amounts due under this Contract, including, but not limited to, payments due under this Contract or damages for the breach of this Contract, shall be paid in Lubbock County, Texas, said Lubbock County, Texas, being the place of performance agreed to by the parties to this Contract. In the event that any legal proceeding is brought to enforce this Contract or any provisions hereof, the same shall be brought in Lubbock County, Texas. 14. 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. 15. EFFECTIVE DATE This Contract shall be effective and binding between the parties hereto on the passage and effective date of City of Lubbock Ordinance No. U4 0 28 WHOLESALE CUSTOMER hereby binds itself, its successors, assigns and representatives for the faithful and full performance of the terms and provisions of this Contract. EXECUTED as of the day of TOWN OF RANSOM CANYON WHOLESALE CUSTOMER , 1988. w BY: MAYOR ATTEST: MAILING ADDRESS for notice: Town of Ransom Canyon 24 Buffalo Drive Ransom Canyon, Texas 79366 r 29 ACCEPTED AND EXECUTED as of the day of , 1988. THE CITY OF LUBBOCK C BY: • . C. MCMINN, MAYOR ATTEST: L= Ranet a Boyd, C ty Se retary APPROVED AS TO FORM: C- e-l�- 47 - J t� C. Ross, Jr., CiQty Attorney MAILING ADDRESS for notice: City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 KE# - v3/J6 btAre f mIv -� ---3178'.. / 3 ;I 5 312 11• ` -10 ° Well 31320 ° 1143 • J/37 - l 3121 i 'Wells �. � �—^ \ 31371� � Wells \\ ,Well°/3°3132/3127 3/2/ 1 d o 7Z'Quarry 3/31 ° 03/37 \ e 3122 / ROaO -- _ 3//8/ r. \\ i � � .'-J' ` `�\.) °• tet. 3/260 115' fog L•. e° °Well�J/ vc r \\ 3/21 ° 3137 \ - ,� Ir' -- a s' nn N . ," • . •r.. ° °J /38 Wells 0. \ 1 \ - /,V \ ; .� A_ 0,1;f,� Pig S ueab� `o \ $ Quarry\ ;',r• 338 r PRIVA\;133/_- y LO '3tia�j5 -Toil 9 - - / 3116 DILI E L y,., �" A 1941 Johnsto R 11 4 111 nz s_s1 /'\ ii ��4y oy 3132 \ � � IF a 130 r�• y a@�\ ,u/ ��. a S°yam• \\ l�� </�7�J/ '•�\ carry 3128�L 3133 \ '_1• -•-V "3135 - ISO \ - 3134 312 ° 7' Wells 03133 3 24 II \\ -- O Well_ 3107 EXHIBIT B 81.17% of the high volume rate for customers inside the City limits of the City of Lubbock. The high volume rate shall be that rate charged customers consuming more than 250,000 gallons of water per month. In addition, there shall be added to such rate the proportionate costs of installing capital improvements necessary to furnish such water which shall be repaid over a period of 30 years on either an annual or monthly basis at 6 1/2% simple interest.