Item 4BCity of Southlake, Texas
MEMORANDUM
February 5, 2008
To: Shana Yelverton, City Manager
From: Robert H. Price, P.E., Public Works Director
Subject: Approve a revised water purchase contract between the Cities
of Southlake, Fort Worth, and Keller.
Action
Requested: Approve a revised water purchase contract between the Cities of
Southlake, Fort Worth, and Keller.
Background
Information: In 1984, the Cities of Keller and Southlake contracted to build and
share ownership and use of a water transmission main from the
City of Fort Worth's AltaVista pump station. Since that time, the
contractual arrangement for water billing was that the City of Fort
Worth billed Southlake for all the water passing through the FW-
AltaVista meter and Southlake would bill Keller for their share
based on the Keller/Southlake meters and calculate Max Day/Hour
charges based on the percent of use. Increased water demands by
both Southlake and Keller warranted the building of a second
supply line (42" Caylor line) from the City of Fort Worth which was
completed in December 2005.
The plan by the three contracting cities has been that once the
second transmission main was placed in service, a new billing
contract would be signed by the parties. Under the new contract,
the Cities of Keller and Southlake will upgrade the meters at their
respective Pearson Rd. pump stations to the same accuracy
standards as those in the City of Fort Worth. Once completed, Fort
Worth will begin using the Southlake and Keller meters for billing
the two Cities individually for their water use.
Staff recommends that this contract be approved in order to
proceed with the meter upgrade project proposed to be awarded
later in the spring of 2008.
Financial
Considerations: The new contract is intended to improve the accuracy and simplify
the billing process for all three of the contracting cities.
Citizen Input/
Board Review: None
Legal
Review: None.
Alternatives: The City Council may approve or deny the contract.
Supporting
Documents: Contract between the Cities of Fort Worth, Keller and Southlake
related to the billing for treated water. (Exhibits A)
Staff
Recommendation: Approve a revised water purchase contract between the Cities of
Southlake, Fort Worth, and Keller.
Staff
Contact: Robert H. Price, P.E., Public Works Director
Chuck Kendrick, Deputy Director of Public Works/Operations
CONTRACT BETWEEN THE CITIES OF FORT WORTH, KELLER
AND SOUTHLAKE RELATED TO THE BILLING FOR TREATED WATER
WHEREAS, on the 24t' day July, 2000, the cities of Fort Worth and Keller
entered into a contract for the provision by Fort Worth of treated water to Keller, such
contract being City of Fort Worth City Secretary Contact No. 26097, which replaced City
of Fort Worth City Secretary Contract No. 10564; and
WHEREAS, on the 4t' day of September, 2002, the cities of Fort Worth and
Southlake entered into a contract for the provision by Fort Worth of treated water to
Southlake, such contract being City of Fort Worth City Secretary Contact No. 27958: and
WHEREAS, the cities of Keller and Southlake entered into a contract between
themselves related to the provision of treated water by Southlake to Keller, such treated
water being provided to Southlake by Fort Worth, such contract between Keller and
Southlake being attached hereto as Exhibit "A"; and
WHEREAS, the cities of Fort Worth and Southlake entered into a contract
wherein Fort Worth authorized the resale of treated water by Southlake to the City of
Keller; such contract being City of Fort Worth City Secretary Contract No. 17683; and
WHEREAS, Keller and Southlake desire to enter into a contract Fort Worth
related to the billing for treated water delivered to Keller by Southlake; and
WHEREAS, the City of Fort Worth is agreeable to provide billing services related
to the treated water provided by Southlake to Keller subject to and solely pursuant to the
terms and conditions stated below.
Now, therefore, the cities of Keller, Southlake, and Fort Worth agree as follows:
This Agreement is executed this day of , 2008, by and
between the City of Fort Worth, represented herein by and through Mark A. Ott, its duly
authorized Assistant City Manager, hereinafter referred to as "Fort Worth"; the City of
Keller, represented herein by and through Dan O'Leary, its duly appointed City Manager,
hereinafter referred to as "Keller"; and the City of Southlake, represented herein by and
through Andy Wambsganss, its duly appointed Mayor, hereinafter referred to as
"Southlake". The cities of Keller and Southlake are sometimes hereinafter referred to as
the "Cities"
1.
TERM
The contract shall terminate on December 31, 2010, unless earlier terminated as
provided herein.
2.
RATES FOR WATER TAKEN
The rates to be charged for treated water delivered by Fort Worth to the Cities
shall be equal to the volume rates and rate of use charges currently in effect and as they
may change from time to time, all in accordance with City of Fort Worth City Secretary
Contracts 20697 and 27958, such contracts being hereinafter referred to collectively as
the "Contracts".
3.
DETERMINATION OF TOTAL VOLUMES,
ALLOCATION TO EACH PARTY FOR BILLING PURPOSES
Attached hereto as Exhibit "B" is a drawing reflecting the locations of Meter 1
(the Caylor Tank Meter), Meter 2 (the North Beach Meter), Meter 3 (the Southlake
Pearson Lane Meter), and Meter 4(the Keller Pearson Lane Meter). Each month that this
Agreement is in effect, Fort Worth shall read all fours meters to determine the total
treated water delivered as measured by Meters 1 and 2, together with the allocation of
treated water each taken by Keller and by Southlake. Attached hereto as Exhibit "C" is
an example of a calculation for billing the total water, the maximum day and the
maximum hour under this Agreement. By executing this Agreement, the Cities
acknowledge that they have had their respective utility personnel or consultants review
Exhibit "C" and that they fully understand the exhibit and agree to the calculations
demonstrated therein for the purpose of billing treated water delivered to Keller and
Southlake.
Keller agrees that the treated water delivered to it under this Agreement will not
be added to the treated water taken by it pursuant to City of Fort Worth City Secretary
Contact No. 26097. Keller will continue to receive monthly bills and an annual bill under
Fort Worth City Secretary Contract No. 26097, as well as monthly bills and an annual bill
under this Agreement.
BILLING AGREEMENT
KELLER — SOUTHLAKE
Page 2 of 8
4.
MAXIMUM HOUR, MAXIMUM DAY CHARGES
For historical information and comparison, and solely for use under this
Agreement, Fort Worth and the Cities agree that the maximum day and maximum hour
volumes shall be:
Maximum Day Maximum Hour
Keller 4.97 MGD 5.95 MGD
Southlake 18.29 MGD 20.26 MGD
This information shall not be used for annual billings made under City of Fort Worth City
Secretary Contract No. 26097.
5.
METER UPGRADES
The Cities entered into a contract dated January 20, 2004 detailing the division of
costs associated with the required meter installation and vault construction, a copy of
which is attached hereto as Exhibit "D", same being Southlake City Contract No. 04-15.
Exhibit "D" is solely attached for the purpose of cost sharing related to the upgraded
meters between the Cities and for no other purpose.
A new meter vault and transit time flow meter ("Meter 1 Improvements") shall be
installed at the Meter 1 location. The costs associated with design and construction of the
Meter 1 Improvements shall be the responsibility of the Cities. After installation of the
Meter 1 Improvements Fort Worth shall test the transit time flow meter and if deemed by
Fort Worth to be accurate, the existing 16" turbine at the Meter 1 location shall be
removed and the transit time flow meter shall be moved to the existing vault where the
turbine meter is currently located. A flow control valve will be installed at the
appropriate location. All costs associated with testing, the removal of the existing Meter
1, the removal and replacement of the transit time flow meter and installation of the flow
control valve shall be the responsibility of the Cities. If the turbine meter is replaced by
the transit time flow meter, Fort Worth, at its cost and expense, as a Customer Cost, may
install an electric valve actuator in the newly constructed vault. The plans and
specifications for Meter 1 improvements have previously been approved by Fort Worth.
The award of a construction contact shall be awarded and paid for in accordance with
Exhibit "D".
BILLING AGREEMENT
KELLER — SOUTHLAKE
Page 3 of 8
Southlake shall be responsible for the costs and award of a contract associated
with the removal of the existing altitude valve at the Meter 2 location, the relocation of
the existing Venturi meter to where the altitude meter was located, and the installation of
a new transit time flow meter. Fort Worth shall test the transit time flow meter and if
deemed accurate by Fort Worth, Southlake shall be responsible for the removal of the
Venturi meter and the cost to install a spool piece of pipe. The contract to be awarded by
Southlake shall include the installation of a conduit bank raceway from the existing
Meter 2 Vault location to the Fort Worth Pump Station with the PVC pipe to be supplied
by Fort Worth at no cost to Southlake.
The meters, together with the meter vaults, designated as Meter 3 and Meter 4 on
Exhibit "B" attached hereto shall each be upgraded to meet the requirements of section
3.1 of the Contracts. The existing meters shall be replaced with transit time meters and
provision shall be made for back-up power to the meters, as well as electronically provide
pump status to Fort Worth. Further, fire hydrants will be installed on the downstream
side of the meters. The plans and design for the meters and the meter vaults are subject
to the written approval of Fort Worth.
6.
OPERATION AND MAINTENANCE OF METERS
Fort Worth shall be responsible to operate and maintain Meters 3 and 4. In that
regard, Fort Worth may either contract for any necessary repairs or perform the work
with its own forces. The Cities agree to reimburse Fort Worth for the total cost of any
required maintenance or repair. The Cities shall share such costs based upon the
percentage of treated water delivered to them as calculated in Exhibit "C".
Calibration of Meters 3 and 4 shall be performed as described in Section 4 of the
Contracts. The Cities shall pay for the costs for meter calibration, meter maintenance,
and power to operate the meters, with the costs being divided as stated immediately
above.
7.
OPERATION OF DELIVERY SYSTEM
"Delivery System" shall mean the system of water mains that delivers treated
water to the Cities, as represented by the dashed -line on Exhibit "B". Fort Worth shall
never have any duty to operate and maintain the Delivery System. The Cities in
accordance with whatever contracts exist between them shall be responsible to operate
and maintain the Delivery System.
8.
PROHIBITION OF EXTENSIONS
The Cities shall not permit any extensions or connections to the Delivery System.
BILLING AGREEMENT
KELLER — SOUTHLAKE
Page 4 of 8
9.
MEDIATION OF DISPUTES
If any dispute arises hereunder between the parties, such dispute shall be resolved
in accordance with Section 22.08 of the Contracts.
10.
EASEMENTS/All-WEATHER ACCESS
Each City shall dedicate an easement to Fort Worth in order for Fort Worth to
have access to the Meters 3 and 4, as well as the meter vaults. In addition, the Cities shall
provide an all-weather access to the meter vaults.
11.
CONTRACTS CONTROLLING
To the extent that this Agreement modifies either City of Fort Worth City
Secretary Contact No. 26097 or 27958, this Agreement shall control. In all other matters,
the provisions of City of Fort Worth City Secretary Contact No. 26097 and 27958 take
precedence.
12.
TERMINATION
This Agreement may be terminated by Fort Worth at any time in its sole
discretion by giving written notice to the Cities at least sixty (60) days prior to the date of
termination. The Cities may terminate this Agreement only by mutual agreement
between the two of them and then by the Cities giving written notice to Fort Worth at
least sixty (60) days prior to the date of termination.
13.
EFFECT OF TERMINATION
If this Agreement is terminated, the Cities shall revert to the status and contractual
relations they were in prior to the execution of this Agreement.
14.
THIRD PARTY BENEFICIARIES
The provisions and conditions of this Agreement are solely for the benefit of the
parties hereto, and any of their lawful assigns or successors and are not intended to create
any rights, contractual or otherwise, to any other person or entity.
BILLING AGREEMENT
KELLER — SOUTHLAKE
Page 5 of 8
15.
NOTICES
All written notices called for or required by this Agreement shall be sufficient if
forwarded to the following, or such other party or address as either party designates in
writing, by certified mail, postage prepaid, or by hand delivery:
City of Fort Worth:
City of Fort Worth with a copy to: City of Fort Worth
Attn: City Manager Attn: Water Director
1000 Throckmorton P. O. Box 870
Fort Worth, TX 76102 Fort Worth, Texas 76102
City of Keller
City of Keller with a copy to: City of Keller
Attn: City Manager Attn: Public Works Director
P.O. Box 770 P.O. Box 770
1100 Bear Creek Parkway 1100 Bear Creek Parkway
Keller, Texas 76248 Keller, Texas 76248
City of Southlake
City of Southlake with a copy to: City of Southlake
Attn: Mayor Attn: Public Works Director
1400 Main Street, Suite 270 1400 Main Street, Suite 270
Southlake, Texas 76092 Southlake, Texas 76092
(REMAINDER OF PAGE INTENTIONALLY LEFT BLAND
BILLING AGREEMENT
KELLER — SOUTHLAKE
Page 6 of 8
16.
Force Mai eure
If, by reason of Force Majeure as hereinafter defined, any party hereto shall be
rendered wholly or partially unable to carry out its obligations under this Agreement, then
such party shall give written notice of the particulars of such Force Majeure to the other
parties within a reasonable time after the occurrence thereof. The obligations of the party
giving such notice, to the extent affected by such Force Majeure, shall be suspended
during the continuance of the inability claimed and for no longer period, and any such
party shall be in good faith exercise its best efforts to remove and overcome such
inability.
The term "Force Majeure" as utilized herein shall mean and refer to acts of God;
strikes, lockouts or other industrial disturbances; acts of public enemies; orders of any
kind of the government of the United States, the State of Texas, or any other civil or
military authority; insurrections; riots; epidemics; landslides; earthquakes; lightning;
fires; hurricanes; storms; floods; washouts; or other natural disasters; arrest; restraint of
government and people; civil disturbances; explosions; breakage or accidents to
machinery, pipelines or canals; or other causes not reasonably within the control of the
party claiming such inability. Force Majeure shall not excuse the obligation of and parry
hereto to pay for treated water service provided under this Agreement.
17.
No Joint Venture, Partnership, A�zency
This Agreement will not be construed in any form or manner to establish a
partnership, joint venture or agency, express or implied, nor any employer -employee,
borrowed servant or joint enterprise relationship by and among the parties. Each parry
shall be an independent contractor and shall be responsible at all times for directing its
employees in the course of their duties. Each parry shall be responsible at all times for
directing its employees in the course of their duties.
18.
Contract Construction
The parties acknowledge that each party and, if it so chooses, its counsel have
reviewed and revised this Agreement and that the normal rules of construction to the
effect that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any amendments or exhibits hereto.
19.
Governmental Powers
It is understood that by execution of this Agreement, none of the parties hereto
waive or surrender any of it governmental powers.
BILLING AGREEMENT
KELLER — SOUTHLAKE
Page 7 of 8
APPROVAL RECOMMENDED:
S. Frank Crumb, P. E.
Water Department Director
Approved as to Form and Legality:
Assistant City Attorney
APPROVAL RECOMMENDED:
Gregory W. Dickens, P. E.
Public Works Director
Approved as to Form and Legality:
L. Stanton Lowry, City Attorney
APPROVAL RECOMMENDED:
Robert H. Price, P.E.
Public Works Director
Approved as to Form and Legality:
E. Allen Taylor, City Attorney
BILLING aGRM IENT
KELLER — SOUTHL KE
Page 8 of 8
CITY OF FORT WORTH
Marc A. Ott
Assistant City Manager
CITY OF KELLER
Dan O'Leary
City Manager
CITY OF SOUTHLAKE
USA
Andy Wambsganss
Mayor
SOUTHLAYE - KELLER WATER CONTRACT
THE STATE OF TEXAS )(
COUNTY OF TARRANT )(
WHEREAS, the cities of Southlake and Keller desire to enter
into a contract for the financing and construction of certain
water lines within and adjacent to the City of Kellen in order to
transport water purchased from the City of Fort Worth through
those lines to a point on the East city limits of Keller where a
quantity of such water would be delivered to Southlake pursuant
to this contract and contracts between such cities and the City
of Fort Worth;
W I T N E S S E T H:
1. The parties to this contract are the City of Southlake,
("Southlake") a general law city, and the City of Keller,:
("Keller") a home rule city, both of Tarrant County, Texas,
acting herein by and through their duly authorized officers.
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2. The consideration for this contract is the benefit to be
realized by each of the parties.
3. The City of Kellen shall provide the right of way as
needed for the construction of the water line between a pump
station to be located West of Feller and its eastern city
limits. Right of way for the initial stage of construction shall
be acquired between Cindy Street and Keller's east city limits,
adjacent to the North ROW line of FM 1709, which initial stage is
designated as Segments A and B on Attachment "A" hereto. Such
easements for Segments A and B shall be acquired by Keller by
June 20, 1984.
4. The City of Southlake shall prepare construction plans
and construction documents for that segment of water line desig-
nated B together with all required appurtenances and meters shown
on Attachment "A" hereto and shall submit such plans to the City
of Kellen within 30 days after the date of execution of this
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contract. Keller shall complete construction of Segment A by the
time Segment B is completed.
5. After submission of such plans as contemplated by 4.
above, the City of Keller shall have 10 working days to request
changes. Requests for changes shall be transmitted to
Southlake's engineer, and shall be resolved to the mutual
satisfaction of the cities prior to further action hereunder,
other than the obtaining of any easements. In the event that any
requested change cannot be resolved within ten working days from
the date Southlake's engineer receives notice of such request,
either party may notify the other of its intention to terminate
this agreement. If this agreement is so terminated, neither, party
shall have any further liability or duty to the other by reason
of this contract.
6. Southlake shall, after, plans have been approved as
stated above, let the contract for bid, and upon receipt of bids,
tabulate, furnish copies of tabulations to Keller, and award the
contract to the lowest qualified bidder in accordance with law.
The City of Keller shall be an additional named insured under all
policies of insurance x-equired of the contractor and an
additional named beneficiary under all bonds required by law and
under maintenance bonds required by Southlake. Both Keller and
Southlake shall have the right to inspect all such construction
under this contract and all such construction shall be in
accordance with the ordinances and policies of the City of
Keller.
7. The City of Keller shall be responsible for construction
of the 8" line designated Segment A on Exhibit "A" hereto. The
parties agree that the 8" line designated Segment A on Exhibit
"A" shall be the sole property of the City of Keller. All other
segments shall be jointly owned in the percentages reflected by
Exhibit "B". The City of Keller shall have the night to sell any
or all of its portion to other parties without Southlake's
consent.
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S. The City of Seller shall pay to the City of Southlake a
portion of the cost of constructing segment B as shown on Exhibit
"A" hereto. The portion which Keller shall pay on each such
segment shall be that percentage shown on Exhibit "B" hereto
allocated to such segment. Payments shall be made to Southlake
as progress payments to the contractor become due and shall be
Keller's percentage of such #rogress payments. Such sums shall
be paid within 25 days of the date such costs are incurred and
billed to Southlake and copies sent to Keller.
9. Upon completion of Segments A and B, Southlake shall,
subject to availability of water from the City of Fort Worth,
be entitled to take up to 1 million gallons per day from such
pipeline at Keller's East city limit, wheie metering shall occur.
This limit shall apply until the other segments of the line shown
on Exhibit "A" are completed and Southlake is receiving water
through such segments, at which time this paragraph shall be of
no further force and effect. Southlake shall reimburse Keller
for all costs incurred in delivering water to Southlake in
accordance with and as set forth and calculated as stated on
Exhibit "C" hereto.
10. Upon 90 days written notice by either party to the
other, the parties shall be obligated to perform the remaining
portions of this contract. After such notice is given by either
party, the City of Southlake shall prepare plans and specifica-
tions for construction of a pumping station and those segments
designated Segments C and D on Exhibit "A" hereto, and submit the
same to the City of Keller for review. Keller shall have 30 days
to review such plans and request changes. Requests for changes
shall be submitted to Southlake's engineer during such period and
shall be resolved to the mutual satisfaction of both cities.
If such requested changes are not resolved within such thirty
(30) day period, either party may enforce this contract by
specific performance to the extent provided below. It is
specifically agreed and understood that the sizes of line shown
3
are tentative and the plans shall determine final line sizes.
Such lines shall be of adequate size to ensure that Southlake
will be able to receive 6.5 mgd of water• at the delivery point
on Keller's East city limits and that Keller, will be able to take
out 9 mgd at the arrow between Segments C and D and an additional
13.5 mgd at the delivery point at Keller's east city limits„ If
either party fails to proceed with remaining portions of this
contract after receipt of the aforesaid written notice, the other
party may enforce by specific performance so much of the contract
as will provide that amount of water capacity to such party as is
set out herein or such lesser amount as it may agree to.
11. Keller, shall• pay a percentage of the cost of
engineering, plan preparation and construction in the percentages
as defined and set forth on Exhibit "B". Such percentage shall
be due and payable within 25 days after incurred and billed to
Southlake and copies sent to Keller. Southlake shall participate
in the cost of easements necessary for Segments C and D and all,
other easements other than for Segments A a•nd B. Southlake shall
pay that percentage of such easement costs for each segment equal
to its share of cost as reflected by Exhibit "B". Such percent-
age shall be due and payable within 30 days after incurred by
Heller and billed to Southlake.
12. The City of Southlake shall, be the owner, of that
undivided percentage of the pump station and water transmission
line contemplated by this contract and as reflected by that
percentage of its cost for such segment and station shown on
Exhibit "B". The p" line designated Segment A shall remain the
exclusive property of the City of Keller. The City of Keller
shall be the owner of an undivided percentage of the pump station
and water' transmission line, as reflected by that percentage of
its cost for such pump station and segment as shown on Exhibit
"B", and shall have the right to convey any part of this
interest or capacity in the line to other individuals or entities
as it may see fit, provided, however, Keller shall not be
4
released from maintenance rights or obligations herein incurred.
The City of Southlake and the City of Keller, shall at all times
have the right to take water from the pipeline installed under
this contract, at the designated delivery points, in amounts and
at rates of flow as water is being provided to each such city
under such city's respective contract with the City of Fort
Worth. In the event that the City of Fort Worth should reduce
the amount of water or rate of flow thereof to either Keller or
Southlake or both pursuant to its contract with such cities, then
the particular city so affected shall have its right to withdraw
water at its delivery point or points curtailed to an amount or -
rate of flow, equal to that being provided by the City of Fort
Worth for such city less line loss. In the event that either
party to this contract should by future contracts with the City
of Font Worth obtain a rate of flow greater than that set forth
i
for such city, in this contract in paragraph 10 hereinabove, and
the unused capacity of the line is available to aceomodate such
I
rate of flow,!such city shall be allowed to use such additional
line capacity, including line capacity not being used by the
other party to this contract, until such other party has need of
its unused guaranteed line capacity. Further, any line capacity
above the guaranteed line capacities allocated to the parties
i
herein shall be allocated to the parties in the percentage that
such party's guaranteed line capacity bears to the total guaran-
teed line capacity of both parties. Should the pipeline and/or
pump station be impaired to the extent that 29 mgd cannot be
transported through Segment D or if 20 mgd cannot be delivered at
the delivery point at Keller's East City Limits, each party shall
have its right to withdraw water at its delivery points curtailed
on a prorata basis.
13, Kehler shall be responsible for operation and
maintenance of the line from the connection at the pump station
to be constructed hereunder to the connection of the line from
Southlake at Keller's eastern city limit. Such right and
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obligation of operation and maintenance shall not be intended to
and shall not alter the undivided joint ownership of the line by
the parties. Further, should Teller fail to provide any
necessary repair or maintenance to the line to insure that the
flow of water through such line is uninterrupted or is restored
as soon as is possible after interruption, Southlake shall have
the right to perform any such maintenance or repair on such line
upon reasonable notice to Kellen, by telephone or in person to
Teller's City Manager or its Public Works Director, of its intent
to perform such maintenance or repair. In the event of a break
or other damage to the line which interrupts or diminishes the
flow of water to Southlake, the reasonable time within such
repairs or maintenance must begin and continue uninterrupted,
after notice to Keller is provided shall be deemed hereunder to
be one (1) hour.
14. A radio based, microprocessor driven alarm, control and
information logging system shall be installed and maintained
jointly by the cities of Southlake and Keller, Duplicate central
stations shall be installed at designated locations within each
city, The Southlake central station will serve as the master
central station for system control. Alarm and information
functions will occur equally at both central stations. The
Keller central station will be identical to the Southlake central
station and will have the capability to become the master central
station upon failure of the Southlake master central station.
Each city may use the central station in its own jurisdiction to
also monitor and control its own internal systems so long as
nothing is done to interfere with the ,joint operational functions
described above.
Southlake shall be responsible for the operation and
maintenance of the pump station to be constructed and installed
at the connection of the permanent line to the Fort Worth water
supply West of Keller. Such right and obligation to operate and
maintain the pump station shall not be intended to and shall not
0
alter, the undivided joint ownership of the pump station by the
parties. Further, should Southlake fail to provide any necessary
repair or maintenance to the pump station to insure that such pump
station operates properly both as to providing water to the line
and maintaining proper measurements, or, upon failure of the
Southlake master central station, Keller shall have the right to
become the master control station until Southlake's station shall
be capable of resuming control and to perform any such
maintenance, repair or operation for such pump station upon
telephone or personal notice to Southlake's Public Works
Director, Water Superintendent, City Secretary or other person
designated by the Southlake City Council that such operation,
maintenance and repairs, are not being performed properly and of
its intent to perform such maintenance, repair and operation to
correct such condition. In the event of a failure of the pump
station so as°to disrupt or diminish the flow of water to Keller
and Southlake, the reasonable time within which repairs or main-
tenance must begin and continue uninterrupted, after notice is
provided to Southlake shall be one (1) hour. No such notice is
required to assume master control upon failure of Southlake's
master control. Keller' shall further have access to the pump
station at all. times.
15. Each party shall pay for water taken at its delivery
points pursuant to the formula, charges and calculations set
forth in Exhibit "D" hereto. Southlake and Keller, shall each pay
other operation and maintenance charges and contributions to the
Replacement Fund pursuant to the formula, charges and
calculations set forth in Exhibit "D" hereto„
16„ Southlake and Keller agree to refrain from any action
which would cause either to be in violation of other- contracts
with their water supplier, the City of Fort Worth, and to
cooperate in doing all things necessary to comply with
contractual requirements of the City of Fort Worth. It is
specifically agreed and understood that Keller shall be under no
7
obligation to deliver water from its own wells, and that water
supplied by the City of Fort Worth may not be available due to
difficulties outside Keller's control. If Fort forth rations or
otherwise reduces the amount of water to be taken from its supply
without designating which city is being rationed or reduced in
supply, then it is understood and agreed that the quantity of
water furnished to each city will be reduced in a proportion that
the amount of water taken by such city prior to the reduction
bears to the total water being taken by both parties prior to the
reduction.
17. All water furnished under this agreement shall be.
measured by one or more suitable meters equipped with continuous
flow chart -recording devices and transmitting and receiving
equipment. All meters and recording equipment shall be operated
by the city being metered or by the City of Fort Worth. Each
city shall pay the cost of its meters, recording and transmitting
equipment and appurtenances plus the installation and maintenance
cost thereof. Both cities shall have access at all times to any
meter installed pursuant to this agreement.
The point of delivery of treated water to the City of
Southlake shall be the meter vault connection to Southlake's side
of the meter „ and all necessary mains and distribution facilities
from and beyond said point shall be furnished by Southlake. The
points of delivery to the City of Keller: shall be the meter, vault
connection to Keller's side of the meter, and all necessary mains
and distribution facilities from and beyond said point shall be
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furnished by Keller.
The location of each meter shall be mutually agreed upon by
and between the parties hereto, and the meter or meters shall not
be moved or relocated except by mutual consent.
Each party hereto shall have the right to test the meters
and appurtenances at any time by first giving the other party
notice of its intention to make such a test. No meter shall be
adjusted, changed, or tested, in place or elsewhere, unless the
8
party first gives notice to the other party of this intention and
thereafter gives reasonable opportunity to the other party to have
representatives participate in such test, change or adjustment„
All meters will be properly sealed, and the seal shall not
be broken unless representatives of both parties have been
notified and given a reasonable opportuninty to be present.
Either Keller or Southlake at its own expense .may install a
check meter to check measure the volume of water passing through
the master meter, provided that if such check meter is installed,
the same rules and regulations relative to its operation,
maintenance, and reading shall apply as to the meter being
tested.
DEFINITIONS
18. These definitions shall be deemed to include those
terms used in the attachments hereto as well as in the main body
of this contract.
"Annual consumption" is the total quantity of water
purchased under the terms of this contract by Keller during the
fiscal year of the City of Fort Worth as determined by the
difference in the annual September meter readings.
"Average daily use" is the annual consumption divided by
365.
"Maximum day demand" is the maximum quantity of water used
during one calendar day of the fiscal year of the City of Fort
Worth.
"MGD" is million gallons per day.
"GPD" is gallons per day.
"TGPD" is thousand gallons per day.
"Fiscal year" is October 1 through September 30.
"Maximum hour demand" or "peak hour rate" is the quantity of
water used during the one hour of the year when more water passed
through the meter or meters serving the customer than during any
other hour of the fiscal year of the City of Fort Worth
multiplied by 24 (the zate expressed as mgd).
E
"Commodity charge" is that part of the rate changed per
1,000 gallows used, regardless of rate of use. The commodity
change shall include the maintenance and operation cost, the
capital facilities cost on the pant of the production and
transmission symbol related to annual use and the xaw water
costs,
"Raw water charge'' is a part of the commodity charge and
represents the rate per 1,000 gallons changed by the Tarrant
County Water Control and Improvement District #1 to the City of
Fort Worth for raw water to be soI.d to Keller plus six percent
(6%) of said rate, representing Fort Worth system losses, and the
street rental charge of three percent (3%).
"Rate of: use charge" is the fixed charge determined for the
maximum daily, demand in excess of average daily usage and the
maximum hourly demand in excess of maximum day demand rates of
use.
i
"Base rate'' is composed of the commodity charge, and the
rate of use charge.
19. They effective date of this contract for billing
purposes shall be the date upon which water is first delivered to
Southlake under this agreement.
20. The life of this contract and the joint ownership of
the facilities to be constructed pursuant to this contract shall
be the useful life of the facilities and equipment, including
replacement facilities and equipment installed during the term
of this contract. Such contract or term hereof shall in no way
obligate either party to provide or sell water to the other,
except for the delivery of water through Keller's lines to
Southlake during the intex,im portion of this agreement. Further,
should either party cease receiving water, from the City of Fort
Worth after the effective date of this contract but during the
useful life of the lines and facilities, the remaining party
shall be entitled to continue using such lines and facilities to
receive water from Fort North.
10
21. The water system of each panty hereto shall be approved
by the Texas State Department of Health during the life of this
contract. if at any time the watersystem of either party is not
approved by the Texas State Department of Health, there shall not
be any direct physical connection between the Keller, water, system
and the Southlake water system unless an approved backflow
prevention device has been provided and installed and this
installation has been approved by the Texas State Department of
Health.
22. If, by reason of force majeure, either panty hereto
shall be rendered unable, wholly or in pant, to carry out its
obligations under this agreement, other than the obligation of
Keller to make payments required under the terms hereof, then if
such party shall give notice and full particulars to such force
majeure in writing to the other panty within a reasonable time
after the occurrence of the event or, cause relied on, the
obligation of the party giving such notice, so far as it is
i
affected by such force majeure, shall be suspended during the
continuance of the inability then claimed, but for no longer
period, and such panty shall endeavor to remove or, overcome such
inability with all reasonable dispatch.
The term "force majeure," as employed herein, shall mean
acts of God, strikes, lockouts or other industrial disturbances,
acts of public enemy, orders of any kind of the Government of the
United States or the State of Texas, or any civil ox military
authority, insurrection, riots, epidemics, landslides, lightning,
earthquake, fixes, hurricanes, storms, floods, washouts,
droughts, arrests, restraints 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 of Fort Worth to deliver
water hereunder or Kellen to receive water, hereunder on account
of any other causes not reasonably within the control of the
party claiming such inability.
11
23. All written notices called for in this contract shall
be sent, registered or certified mail with sufficient postage
affixed to the parties at the following addresses:
CITY OF SOBTHLAKE CITY OF KELLER
667 North Carroll P. 0. Box 770
Southlake, Texas 76092 Keller, Texas 76248
24. This contract may be canceled by either party by
written notice to the other panty on or before 5.00 p.m., June 5,
1984.
Agreed to effective C,v 1984.
CITY OF SOUTHLAKE
By: •Sam
4parge rV Ma V r
I
ATTEST:
Sandy LeGrand
City Secretary
ATTEST:
Sheila Step ens
City Secretary
12
CITY OF KELLER
By:
Bruce Lee, Mayor
EXHIBIT "B"
PERCENTAGE OF COST AND
OWNERSHIP INTEREST
1. Segment A
Along FM 1709 from Cindy
to Pate Orr Road
2. Segment B
Pearson Lane to Pate Orr Road
Along FM 1709 (30 inch line)
3. Segment C
FM 1709 along Pate Orr Road
to Bear Creek Road, along Bear
Creek Road to US 377 (30 inch line)
4. ,Segment D
US 377 to Fort Worth Terminal
storage site at Alta Vista Road
along public rights -•of -way and
easements (36 inch line)
5. Pump Station at the Font Worth
Terminal Storage Site
1
Kellen Southlake
100%
0
67.5,%
32.5%
67.5%
32.5%
77. 6%
22. 4%
77. 6% 22.4%
EXHIBIT "C"
COST SHARE DUE KELLER FOR
INTERIM WATER DELIVERIES
1. 10% of cost to add Pump No. 4 to the existing City of
Keller Pump Station including the costs of design, equipment,
installation, inspection, legal, fiscal and other such costs
directly chargeable.
2. Share of energy costs directly proportional to the
Volume of water pumped to that delivered to Southlake plus a 5%
surcharge for handling billings and payments.
1
EXHIBIT "D"
1. Each City will pay Fort Worth directly For water
delivered through the pumping and transmission system as metered
at these points:
Southlake The 20 inch line at its western, city limits
at FM 1709.
Keller - The take out near the intersection of Pearson
Road and FM 1709, at its eastern city limits
and at the intersection of this line with
❑S 377 and such other points as the parties
may agree on.
2. It Fort Worth requires metering of water pumped at the
pump station, any adjustments in billings for water lost in
transport, or otherwise, will be shared in proportion to the
total amounts taken by each participating party.
3. Operation and maintenance costs of the pump stations,
meters, instrumentation, pipelines and appurtenances of the
system west of the Keller/Southlake City limit line will be
shared in proportion to the total, amount of water metered to each
participating entity.
4. All participants shall contribute annually an amount
equal to $.02 per each 1000 gallons of water delivered toward a
fund to be used to replace operating equipment such as pumps,
contzols, instrumentation, control valves, meters, chlorination
equipment, etc. and to bear the cost of major maintenance costs
to any element or elements of the system when parties to the
system jointly declare a repair cost eligible for payment from
these funds. ;This fund shall be administered by the City of
Southlake and accumulated to and maintained at a total amount of
i
$50,000,00, and shall be invested at interest. Intexest
shall be used to maintain the fund at its maximum with interest
in excess of fund maximum being used to reduce the 0 & M costs to
each participant in proportion to the total water delivered
during the year.
1
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OFFICIA' r
AGREEMENT FOR FUNDING, CONSTRUCTION AND MAINTENANCE
OF WATER TRANSMISSION LINES
BETWEEN
THE CITY OF SOUTHLAKE, TEXAS
AND
THE CITY OF KELLER, TEXAS
Dated as of Jayk Lk a t-j / �-0 , 2004.
INTERLOCAL AGREEMENT FOR
FUNDING, CONSTRUCTION AND MAINTENANCE
OF WATER TRANSMISSION LINES
STATE OF TEXAS §
COUNTY OFTARRANT §
This Interlocal Agreement for the Funding, Construction and Maintenance of
Water Transmission Lines (this 'Agreement') is entered into as of the )0+k day
of S a.vuka., 2004, between the City of Southlake, Texas ("Southlake") and
the City of Keller, -texas ("Keller").
RECITALS
1. On May 14, 1984, Southlake and Keller entered into a contract for the
financing, construction, and maintenance of a water transmission line from the City of
Fort Worth to the Pearson Pump Station and for the sale of treated water to Keller (the
"1984 Contract"); and
2. Both Keller and Southlake own, operate and maintain a water distribution
system, and each furnishes water service to the customers within its respective
boundaries, and
3. Southlake and Keller each have a contract with the City of Fort Worth,
Texas to purchase wholesale treated water; and
4. Southlake and Keller desire to adopt a new contract to provide for the
construction of new water supply facilities to meet demand, to provide for the operation
and maintenance of existing and new water supply facilities, and to incorporate changes
as a result of amendment to the Cities' contracts with the City of Fort Worth, including
an amendment whereby Keller shall purchase water directly from Fort Worth; and
5. Southlake and Keller have determined it to be in the best interest of their
citizens in their respective cities to fund and construct new water supply facilities,
including a portion of the 48 inch water line Fort Worth intends to construct from the
Harmon Road tank in Fort Worth to the Westport Parkway site; and
6. Southlake intends to construct and maintain a 42" water line from the
Caylor Water Tank in the City of Fort Worth to Pearson Lane, and a 30" water line from
Pearson Lane and Florence Road intersection to the Keller Pearson Lane Pump Station
and the Southlake Pearson Lane Pump Station, the costs of which, under the terms of
this Agreement, shall be funded in part by Keller and shall be jointly used for the
transmission of water to both Southlake and Keller; and
7. Sections 402.001 and 402.075 of the Texas Local Government Code, and
Chapter 791 of the Texas Government Code authorize Southlake and Keller to enter
into this Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, Southlake and Keller agree as follows:
1. PURPOSE.
1.1 The purpose of this Agreement is to provide for the joint ownership,
construction, operation and maintenance of water supply facilities.
2. DEFINITIONS.
2.1 Capital Improvements means any of the following facilities which
provide utility services and benefits common to all customers and that have a life
expectancy of three or more years, whether such capital improvements are located
within the jurisdictional limits of Southlake or Keller: water treatment facilities, metering
facilities, control systems and appurtenances, storage facilities, pumping facilities and
all water transmission mains sixteen inches (16") and greater in diameter.
2.2 Construction Costs means the costs of design, legal, consulting
and engineering fees, permitting, land and easement acquisition and construction costs
for any General Benefit Facility or Facility Expansion, including water treatment
facilities, metering facilities, control systems, and appurtenances, pumping facilities and
water transmission mains, and the cost of capital.
2.3 Cost of Capital means all costs and expenses, debt service,
principal, interest and other common debt service costs, included like fees, closing costs,
engineering fees, bond costs and legal expenses, and lender or bank fees associated
with each such financing.
2.4 Director is the Director of Public Works for the City of Southlake or
his or her designated representative.
2.5 Existing General Benefit Facilities are the 36 inch and 30 inch
water pipelines constructed pursuant to the 1984 Contract which have a total capacity of
20 MGD.
2.6 Facility Expansion is the expansion of the capacity of an existing
facility that serves the same function as an otherwise necessary new capital
improvement, in order that the existing facility may serve new development. The term
does not include the repair, maintenance, modernization, or an expansion of an existing
facility to better serve existing development.
2.7 Fiscal Year is the fiscal year of Southlake from October 1 through
September 30.
2.8 Fort Worth General Benefit Facilities are general benefit facilities
constructed by Fort Worth under the Fort Worth Contract.
2.9 General Benefit Facilities are water facilities shared by Southlake
and Keller (other than Fort Worth General Benefit Facilities) which provide utility
services and benefits common to customers of both cities which include water treatment
facilities, metering facilities, control systems and appurtenances, storage facilities,
pumping facilities and all water transmission mains that are sixteen inches (16") and
greater in diameter.
system.
2.10 Keller System is the Keller water treatment and distribution
2.11 MGD is million gallons per day.
2.12 Operation and Maintenance Costs are the costs incurred to
operate and maintain the Existing General Benefit Facilities, the Caylor/Pearson Line
and the Pearson Pump Station Line, and related Capital Improvements including, but
not limited to, direct expenses, personnel and personnel related expenditures, utilities,
and all other costs required to operate and maintain the foregoing facilities.
2.13 Southlake System is the Southlake water treatment and
distribution system.
2.14 System Cost is the operating expense and capital related cost
incurred by Southlake pursuant to the provision of water treatment and transmission to
Keller's and Southlake's water customers.
3. CONSTRUCTION OF GENERAL BENEFIT FACILITIES.
3.1 Facilities to be Constructed. Keller agrees to pay Southlake the
Construction Costs for the following General Benefit Facilities as detailed below:
A. 42-inch pipeline from the Caylor Water Tank on Caylor Lane
to the intersection of Florence and Pearson Lane (the "Caylor/Pearson Line"), as
depicted on Exhibit "A" attached hereto. The pipeline is designed for a capacity of 29
MGD, with Southlake to bear 75% of the cost of the line and Keller to bear 25%.
B. 30-inch pipeline from the intersection of Pearson Lane and
Florence Lane to the Pearson Lane Pump Station (the "Pearson Pump Station Line"), as
depicted on Exhibit "A" attached hereto. The pipeline is designed for a capacity of 16.5
MGD, with Southlake to bear 58% of the cost of the line and Keller to bear 42%; and
C. 48-inch pipeline from the Harmon Road Elevated Tank to
Westport Parkway (the "Northside 2-11 Line"), as depicted on Exhibit "B" attached
hereto. The pipeline, to be constructed by Fort Worth, is designed for a capacity of 90
MGD. Southlake's and Keller's collective share of the capacity in said line is 29 MGD,
with Southlake's share being 22 MGD, or 75% and Keller's share being seven (7) MGD,
or 25%, as billed by Fort Worth.
3.2 Construction Costs.
A. The estimated cost to construct the Caylor/Pearson Line
(3.1.A) and the Pearson Pump Station Line (3.1.13) is $7,225,000.
B. The estimated cost of Southlake's and Keller's collective
share to construct the Northside 2-11 Line (3.1.C.) is estimated to be $1,800,000.
C. Keller shall pay Southlake for its estimated proportionate
share of the Construction Costs of the Caylor/Pearson Line, the Pearson Pump Station
Line, and the Northside 2-11 Line (as outlined in Section 3 above) within 30 days of the
date of publication of the Notice to Bidders for the construction contracts for the
Caylor/Pearson Line and the Pearson Pump Station Line. Southlake agrees to give
Keller notice 90 days before the date of publication of the Notice to Bidders for the
construction contract. Prior to any and all notices and payments referred to in this
Section, Keller and Southlake shall review all project construction cost estimates to
ensure general compliance with the estimated costs in Subsections 3.1. A. and 3.1. B.
above.
D. Upon completion of the construction of lines 3.1.A, 3.1.8.
and 3.1.C., Keller's costs shall be recalculated using the actual costs Southlake incurred
for construction of the Caylor/Pearson Line (3.1.A.) and the Pearson Pump Station Line
(3.1.B.), and the actual costs billed by Fort Worth for the Northside 2-11 Line (3.1.C),
with Keller's obligation limited to all prorated actual cost up to the Keller Pearson Lane
Pump Station with Keller's participation in the review of all construction costs and
change orders after the award of the original contract.
E. Management Fee — Keller shall pay Southlake a construction
management fee of one percent of the Construction Cost of these facilities. The fee
shall be adjusted upon the completion of construction to reflect actual construction
costs, and shall be payable upon execution of the construction contract for the new
General Benefit Facilities.
F. Should Southlake ever terminate this Agreement or refuse to
enter into a Contract in the future for the transmission of water through the General
Benefit Facilities (Lines), Southlake shall pay Keller for the depreciated value of the
pipelines. It is agreed that the General Benefit Facilities lines will be fully depreciated
after 30 years.
4. OPERATION AND MAINTENANCE COSTS OF GENERAL BENEFIT
FACILITIES.
4.1 Southlake and Keller agree to share the Operation and
Maintenance costs of the General Benefit Facilities as follows: Southlake shall pay 75
percent of the operation and maintenance costs of the Caylor/Pearson Line (3.1.A.),
and the Pearson Pump Station Line (3.1.6.) and 50 percent of the operation and
maintenance costs of the Existing General Benefit Facilities. Keller agrees to pay 25
percent of the operation and maintenance costs of the Caylor/Pearson Line (3.1.A.) and
the Pearson Pump Station Line (3.1.B.), and 50 percent of the Operation and
Maintenance costs of the Existing General Benefit Facilities. Based upon the foregoing,
Keller agrees to pay Southlake for 17/49ths of the costs of annual operation and
maintenance of the foregoing General Benefit Facilities. The 17/49th's is based upon a
maximum capacity of 49 MGD with 10 MGD capacity allocated to Keller for existing
General Benefit Facilities and 7 MGD capacity allocated to Keller on the Caylor/Pearson
Line and the Pearson Pump Station Line. System water losses shall be borne by the
parties according to their respective reserved capacities. System water losses shall be
determined by calculating the difference between the amount of water measured from
the meter readings at the Beach Street and Caylor Lane meters and the amount of
water measured from the meter readings at the Keller Pearson Lane and the Southlake
Pearson meters.
4.2 Southlake shall bill Keller monthly an estimated amount as set forth
in Section 4.1 for the costs for operation and maintenance of the Existing General
Benefit Facilities and the Caylor/Pearson Line and the Pearson Pump Station Line.
Each October, Southlake shall calculate the annual System Costs of the General
Benefit Facilities and use these costs to calculate Keller's proportionate share of the
costs. Southlake shall bill Keller for the difference in the actual costs and the amount
Keller has paid for its share of Operating and Maintenance Costs for the previous 12
months. If the actual cost of Keller's proportionate share is less than the amount that
Keller has paid over the previous 12 months, Keller shall be entitled to a credit on its
next monthly payment. The monthly charges for Operation and Maintenance Costs for
the General Benefit Facilities for the next 12 months shall be determined by the annual
costs divided by 12. The October bill for September usage shall reflect any necessary
annual adjustments due to actual costs.
4.3 Keller shall pay for its obligations hereunder as follows: All such
bills shall be due and payable by Keller within 20 calendar days from the billing date;
provide however, in the event that Keller submits to Southlake within 20 calendar days a
legitimate written dispute of the amount billed detailing the reason for the dispute, the
bill shall not be considered late until 45 days from the billing date. The undisputed
portion of the bill shall be due within 20 calendar days from the billing date. The bills will
show current charges, as well as past -due charges, if any. Past -due charges shall be
the total amount unpaid from all prior billings as of the current billing date. A late fee of
five percent of the total billing shall be added to payments made after the due date.
Payments received by Southlake shall first be applied to the past -due charges, if any,
and thereafter to the current charges.
4.4 The parties hereto agree that services obtained pursuant to this
Agreement are essential and necessary to the operation of Keller's and Southlake's
waterworks facilities and that all payments made by Keller and Southlake hereunder
shall constitute reasonable and necessary operating expenses of Keller's and
Southlake's waterworks and wastewater systems within the meaning of Chapter 1502,
Texas Government Code, and the provisions of any and all ordinances of Keller and
Southlake authorizing the issuance of any long term debt of Keller and Southlake which
are payable from its waterworks and wastewater systems.
4.5 Keller agrees, throughout the term of this Agreement, to fix utility
rates and collect such fees and charges for water service to be supplied to its
customers as will produce revenues in an amount equal to at least: (i) all of operation
and maintenance expenses of its water system, including specifically its payments
under this Agreement; and (ii) all other amounts as required by law and the provisions
of the ordinances or resolutions authorizing its long term debt or other obligations now
or hereafter outstanding, including the amounts required to pay all principal of and
interest on such bonds and other obligations.
4.6 Keller understands that Southlake may annually revise the utility
rates, fees and charges charged to cover all reasonable, actual, and expected operation
and maintenance costs. Any allocable operation and maintenance cost adjustment rate
increase shall be based upon a rate study performed or obtained by Southlake during
October 1 and December 30 of the preceding year, with adjustments due as of January
1 of the following year.
4.7 If Keller disputes a bill and is unable to resolve the difference
informally, Keller shall notify the Director in writing. If the Director and Keller are unable
to resolve the disputed bill, agreement on the bill will be determined by third party
mediation, as hereinafter provided. Dispute of a bill shall not be grounds for non-
payment. In the event a payment is not paid as specified in this Agreement, the late fee
provided in Section 4. 6 shall be imposed. In the event that a billing adjustment is
agreed upon or established by mediation the amount found to be incorrect will be
adjusted in accordance therewith to Keller's account.
4.8 The parties agree that one-half of the balance of funds, if any, in
the joint maintenance account established pursuant to the 1984 Contract shall be
credited towards Keller's obligations under this Section.
5. EFFECTIVE DATE AND TERM.
5.1 The effective date of this Agreement is the date the Agreement is
entered into as set forth in the introductory paragraph.
6. METERING AND BILLING SERVICES
6.1 Keller and Southlake are constructing meter stations at their
respective metering points that meet the operational specifications of the City of Ft.
Worth that will accomplish metering for wholesale water consumptions. These metering
stations shall be turned over to the City of Ft. Worth for ownership, maintenance, and
operation. The City of Ft. Worth shall read the meters monthly and submit a water bill to
the City of Keller and Southlake representing their respective water consumptions. Both
cities agree that payment terms for water loss will be similar for both cities and shall be
included in the revised water purchase agreement with the City of Ft. Worth.
7. RIGHTS -OF -WAY.
7.1 Each party shall grant, without charge to the other party, such
easements and rights -of -way along public highways or other property owned by such
party, as requested by the other party, in order to construct or maintain water
transmission mains or facilities within the service area of either party to provide water to
Keller and to Southlake. Keller agrees to assist Southlake in acquiring any additional
easements or rights -of -way necessary for the construction or maintenance of these
facilities, including exercising Keller's power of eminent domain, if necessary.
Southlake agrees to assist Keller in acquiring any additional easements or rights -of -way
necessary for the construction or maintenance of these facilities, including exercising
Southlake's power of eminent domain, if necessary.
7.2 All work done by or on behalf of Southlake under this Section will
be performed in accordance with specifications equal to those applying to work of a
similar nature performed within Southlake, but neither party hereto will be required to
restore the other's property to a condition equal to its original condition, unless
otherwise mutually agreed in writing.
7.3 Southlake and Keller agree to coordinate the location of the mains
and/or facilities in the other's easements and rights -of -way in order to prevent further
conflicts insofar as it is reasonably practicable.
8. TERMINATION
8.1 This Agreement may be terminated in whole or in part by the mutual
consent of Keller and Southlake. Notwithstanding anything contained herein to the
contrary, any breach by either party hereto to perform any of the duties or the
obligations assumed by such party hereunder or to faithfully keep and perform any of
the terms, conditions and provisions hereof shall be cause for termination of this
Agreement by either party in the manner set forth in this Section. Either party desiring
to terminate this agreement shall deliver to the other party 90 days prior written notice,
except that in the event of nonpayment, Southlake shall be required to give 30 days
prior notice, or the number of days notice which Southlake is required to give pursuant
to its contract with Fort Worth of its intention to so terminate this Agreement if Keller
fails to cure or adjust such breach, including in such notice a reasonable description of
the breach. If, within said notice period, Keller shall fail or refuse to cure such material
breach to the satisfaction of Southlake, then and in such event, Southlake shall have
the right without any liability whatsoever on the part of Southlake, to declare this
Agreement terminated. In the event of termination of this Agreement, all rights, powers,
and privileges of Keller hereunder shall cease and terminate and Keller shall make no
claim of any kind whatsoever against Southlake, its agents or representatives, by
reason of such termination or any action incident thereto. Southlake shall advise Keller
in writing immediately upon acceptance of the cure of any breach.
8.2 Upon termination of this Agreement, Keller shall pay to Southlake
all amounts owed or accrued for the operation and maintenance of the General Benefit
Facilities through the date of termination.
9. LIABILITY FOR DAMAGES.
9.1 Liabilities for damages arising from the treatment, transportation
and delivery of water provided hereunder shall be borne by and remain with each city
according to its proportionate share of the costs as provided in Section 4.1. In the
event of a claim for capacity in the Existing General Benefit Facilities, Keller and
Southlake shall share equally in the responsibility for defending the claim, and for the
costs of any settlement or judgment resulting from the claim.
9.2 Each party hereto agrees to save and hold the other party harmless
from all claims, demands, and causes of action that may be asserted by anyone on
account of the quality, transportation and delivery while water is in the control of such
party. This covenant is not made for the benefit of any third party.
9.3 Contracts made and entered into by either Keller or Southlake for
the construction, reconstruction or repair of any Delivery Facility shall include the
requirement that the independent contractor(s) must provide adequate insurance
protecting both Keller and Southlake as co -insureds. Such contract must also provide
that the independent contractor(s) agree to indemnify, hold harmless and defend both
Keller and Southlake against any and all suits or claims for damages of any nature
arising out of the performance of such contract.
10. FORCE MAJEURE.
10.1 If by any reason of force majeure, either party hereto shall be
rendered unable, wholly or in party, to carry out its obligations under this Agreement,
other than the obligation of the Keller to make payments required under the terms
hereof, then if such parties shall give notice and full particulars of such force majeure in
writing to the other party within a reasonable time after the occurrence of the event or
cause relied on, the obligation of the party giving 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.
10.2 The term "force majeure", as employed herein, shall mean acts of
God, strikes, lockouts or other industrial disturbances, acts of public enemy, orders of
any kind of the government of the United States or the State of Texas, or any civil or
military authority, insurrection, riots, epidemics, landslides, lightning, earthquake, fires,
hurricanes, storms, floods, washouts, arrests, restraints 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 Southlake to deliver
water hereunder or Keller to receive water hereunder on account of any other cause not
reasonably in the control of the party claiming such inability.
11. NOTICE.
11.1 All notices, requests and communications under this Agreement
shall be given in writing, addressed to Southlake or Keller at their respective addresses
set forth below and either (i) hand delivered, (ii) sent by telecopy or a nationally
recognized overnight courier service, or (iii) mailed by registered or certified mail, return
receipt requested, postage prepaid.
To Keller: City of Keller, Texas To Southlake: City of Southlake
P.O. Box 770 1400 Main Street, Suite 460
Keller, TX 76244 Southlake, TX 76092
Attn: City Manager Attn: City Manager
Any notice under or pursuant to this Agreement and given in
accordance with this Section shall be deemed received upon the earlier of: (1) actual
receipt, (2) if mailed, three (3) days after deposit in an official depository of the United
States Postal Service, and (4) if sent by a nationally recognized overnight courier
service, the day following the mailing. Any party may change its address for notice
purposes by sending the other party a notice of the new address.
12. MEDIATION.
12.1 Whenever any disputed matter is specifically authorized by this
Agreement to be determined by the use of an mediator, the following procedure is to be
followed. The party requesting that the dispute be settled by mediation shall serve on
the other party a request in writing that such matter be submitted to mediation. Keller
and Southlake shall mutually agree in writing on the selection of any mediator. Such
agreement shall be made within 10 days from the date that the request for mediation is
received. If an agreement is not reached on the selection of the impartial mediator on
or before the 10th day after the date that notice is received, the Director shall
immediately request a list of seven qualified neutral mediators from the Federal
Mediation and Conciliation Service, or either's successor in function. Keller and the
Director may mutually agree on one of the seven mediators on the list to mediate the
dispute. If they do not agree within five working days after the receipt of the list, Keller
and the Director shall alternate striking a name from the list and the name remaining
shall be the mediator. Keller and the Director shall mutually agree on a date for the
mediation hearing. The decision of the mediator shall not be final, but shall be a
condition precedent to filing suit. All costs of mediation shall be considered an
Operation and Maintenance Cost. Mediation shall take place in Tarrant County, Texas.
13. INSPECTION AND AUDIT.
13.1 Each party hereto shall keep complete records and accounts
pertaining to this Agreement in accordance with State Law or for a minimum period of
five years. Each party shall at all times, upon notice, have the right at reasonable times
to examine and inspect said records and accounts during normal business hours; and
further, if required by any law, rule or regulation, make said records and accounts
available to federal and/or state auditors.
14. MISCELLANEOUS.
14.1 This Agreement is subject to all applicable federal and state laws
and any applicable permits, amendments, orders, or regulations of any state or federal
governmental authority having or asserting jurisdiction, but nothing contained herein
shall be construed as a waiver of any right to question or contest any such law, order,
rule or regulation in any forum having jurisdiction.
14.2 Keller agrees to abide by any changes in this Agreement made
necessary by any new, amended, or revised state or federal regulation.
14.3 Upon prior notice by either party, any authorized employee or
representative of such party bearing identification shall notify the other party of need for
access to any premises located within the other party's service area or served by the
other party as may be necessary for the purpose of inspections and observation,
measurements, sampling and testing and/or auditing, in accordance with the provisions
of this Agreement. The other party may elect to accompany the requesting party's
representative. To the extent permitted by law, the requesting party agrees to indemnify
the other party for any damage or injury to person or property caused by the negligence
of such duly authorized employee while such employee is in the course and scope of
his employment.
14.4 In addition to any other remedy as may be provided by law, this
agreement shall be specifically enforceable by the parties hereto. Venue for any action
shall be in Tarrant County, Texas.
14.5 It is agreed that, in the event any term or provision herein contained
is held to be invalid by any court of competent jurisdiction, the invalidity of such term or
provision shall in no way affect any other term or provision contained herein; further, this
Agreement shall then continue as if such invalid term or provision had not been
contained herein.
14.6 Keller may not assign this Agreement without the prior written
consent of Southlake. Southlake may not assign this Agreement without the prior
written consent of Keller.
15. INDEMNIFICATION.
15.1 To the extent permitted by law, Keller agrees to indemnify and save
and hold Southlake harmless from all claims, liabilities, demands, attorneys' fees and
causes of action arising from any negligent act or omission of Keller. This covenant is
not made for the benefit and shall not inure to the benefit of any third party.
15.2 To the extent permitted by law, Southlake agrees to indemnify and
save and hold Keller harmless from all claims, liabilities, demands, attorneys' fees and
causes of action arising from any negligent act or omission of Southlake. This covenant
is not made for the benefit and shall not inure to the benefit of any third party.
16. AMENDMENT.
16.1 Any agreement hereafter made between Southlake and Keller shall
be ineffective to modify, release, or otherwise affect this Agreement, in whole or in part,
unless such agreement is in writing and signed by both parties.
17. WAIVER.
17.1 The failure of either party to this Agreement to complain of any
action, non -action, or default of the other party shall not constitute a waiver of any of
such party's rights under this Agreement.
17.2 Waiver by either party to this Agreement of any right for any default
of the other party shall not constitute a waiver of any right for either party for a prior or
subsequent default of the same obligation or for any prior or subsequent default of any
other obligation.
17.3 No right or remedy of either party under this Agreement or
covenant, duty, or obligation of either party under this Agreement shall be deemed
waived by the other party to this Agreement unless such waiver is in writing and signed
by the waiving party.
18. PARTIES AND SUCCESSORS.
18.1 Subject to the limitations and conditions set forth elsewhere herein,
this Agreement shall bind and inure to the benefit of the respective heirs, legal
representatives, successors, and assigns of the parties hereto.
19. CAPTIONS.
19.1 The captions in this Agreement are inserted only as a matter of
convenience and for reference and they in no way define, limit, or describe the scope of
this Agreement or the intent of any provision hereof.
20. NUMBER AND GENDER.
20.1 All genders used in this Agreement shall include the other genders,
the singular shall include the plural, and the plural shall include the singular, whenever
and as often as may be appropriate.
21. ENTIRE AGREEMENT.
21.1 This Agreement, including all exhibits which may be attached hereto
(which exhibits are hereby incorporated herein and shall constitute a portion hereof
contains the entire agreement between Keller and Southlake with respect to the subject
matter hereof. Further, the terms and provisions of this Agreement shall not be
construed against or in favor of a party hereto merely because such party or its counsel
is the drafter of this Agreement.
22. ATTORNEY'S FEES.
22.1 In the event Southlake or Keller defaults in the performance of any
of the terms, agreements or conditions contained in this Agreement and the
enforcement of this Agreement, or any part thereof, is placed in the hands of any
attorney who files suit upon the same, the non -prevailing party shall pay the reasonable
attorneys fees, expenses and costs of the prevailing party.
EXECUTED as of the date hereinabove first set forth.
CITY OF SOUTHLAKE, TEXAS
3
Billy'Campb I, City nager
CITY OF KELLER, TEXAS
L�lb V. Dresher, City Manager
ATTES••`'�'�TH"'x"•,�� ATTEST:
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Lori Farwell, City Secretary heila tepe i y cretary
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Approv d as to Form , ** Appro to F r
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Southlake City orney L. Stanton Low , City Attorney
EXHIBIT "A"
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EXHIBIT "B"
EXHIBIT "C"
Existing Connections Outside of the Keller System
None
Existing Connections Outside of the Southlake System
None