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Item 4NCity of Southlake, Texas MEMORANDUM June 5, 2007 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 A1taVista 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 summer of 2007. 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, B, C, and D) 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 24th 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 4th 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 , 2007, 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 , its duly city manager, hereinafter referred to as "Keller"; and the City of Southlake, represented herein by and through , its duly authorized, 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. 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. BILLING AGREEMENT KELLER — SOUTHLAKE Page 2 of 7 5. METER UPGRADES 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. 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. 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. 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 3 of 7 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 4 of 7 15. NnTTCF c 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: Mayor Utility Director 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: City Manager Attn: Utility Director 1400 Main Street, Suite 460 1400 Main Street, Suite 460 Southlake, Texas 76092 Southlake, Texas 76092 16. Force Majeure If, by reason of Force Majeure as hereinafter defined, any parry 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 BILLING AGREEMENT KELLER — SOUTHLAKE Page 5 of 7 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, Agency 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 party 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. (REMAINDER OF PAGE INTENTIONALLY LEFT BLAND BILLING AGREEMENT KELLER — SOUTHLAKE Page 6 of 7 APPROVAL RECOMMENDED: S. Frank Crumb, P. E. Water Department Director Approved as to Form and Legality: Assistant City Attorney APPROVAL RECOMMENDED: Greg Dickens, P. E. Utility Director Approved as to Form and Legality: City Attorney APPROVAL RECOMMENDED: Utility Director Approved as to Form and Legality: City Attorney BILLING aGREENIENT hELLER — SOUTHL KE Page 7 of 7 CITY OF FORT WORTH Marc A. Ott Assistant City Manager CITY OF KELLER City Manager CITY OF SOUTHLAKE LIA City Manager 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. - 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 1 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. 2 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 5 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 i 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 Kellen Southlake 1. Segment A 100% 0 Along FM 1709 from Cindy to Pate Orr Road 2. Segment B 67.5% 32.5% Pearson Lane to Pate Orr Road Along FM 1709 (30 inch line) 3. Segment C 67.5% 32.5% FM 1709 along Pate Orr Road to Bear Creek Road, along Bean Creek Road to US 377 (30 inch line) 4. ,Segment D 77.6% 22.4% 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 77.6% 22.4% Terminal Storage Site 1 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 \\cfs01\wa[er\grou p,\gis\projects\plannI,g_engi n eenng\capitalyroj ect_d—lop—t\—thlakakel ler_me[ersBSouN lakakeller_meters mxd (VWG) 03/29/2007 1 �. 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AGREEMENT FOR FUNDING, CONSTRUCTION AND MAINTENANCE OF WATER TRANSMISSION LINES BETWEEN THE CITY OF SOUTHLAKE, TEXAS AND THE CITY OF KEL€.ER, TEXAS Dated as of . Jgajqv Ct.__r_ Si ` LQ • 2004. P A Z D MAY 2 6 2006 i INTERLOCAL AGREEMENT FOR FUNDING, CONSTRUCTION AND MAINTENANCE OF WATER TRANSMISSION LINES STATE OF TEXAS § COUNTY OFT'ARRANT § . This Intedocal Agreement for the Funding, Construction and Maintenance of Water Transmission Lines (this "Agreement`s is entered into as of the day Of aA1Ae2,rJ 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 faculties, including a portion of the 48 inch water line Fort Worth intends to construct from the Hammon 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; P A 13D MAY 2 5 2006 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 faculties, 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. 2A Director is the Director of Public Works for the City of Southlake or his or her designated representative. 2.6 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 otherwiise 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 P A X D �',AY 2 5 HOB 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 N1GD 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. S. CONSTRUCTION Or GENERAL BENEFIT FACILITIES. 3.1 Facilities to be Constructed. Keller agrees to pay Southiske 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 750/6 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. Southtake's and Keller's collective share of the capacity in said line is 29 MGD, with Southlake's share being 22 IVIGD, 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 (VA) and the Pearson Pump Station Line (3.1.8) is $7,225,000. F ,F? I D W 2 5 ZQD6 B. The estimated cost of Southiske's and Keller's collective share to constrict the Northside 2-11 Line (3.1.0.) is estimated to be $1,800,000. C. Keller shall pay Southlake for its estimated proportionate share of the Construction Costs of the CaylorlPearson Line, the Pearson Pump Station Line, and the Northside 2-11 Line (as ouflined in Section 3 above) within 90 days of the date of publication of the Notice to Bidders for the constructfon contracts for the CaylorlPearson 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 rev€ew 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, 3.13, -4 and 3A.C., Keller's costs shall be recalculated using the actual costs Southlake incurred for construction of the CaylorlPearson Line (3.1.A.) and the Pearson Pump Station Line 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 Kelier'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 �I 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 shelf 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 shail 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 Southiake 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 CaylorlPearson Line (3.1.A.), and the Pearson Pump Station Line (3.1.8.) 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 CaylorlPearson 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 17149t�'s of the costs of annual operation and maintenance of the foregoing General Benefit Facilities. The 17149th"s is based upon a maximum capacity of 49 MGD with 10 MGD capacity allocated to. Keller for existing General Benefit Facilities, grid 7 M.GD capacity allocated to Keller on the CaylorlPearson Line and the Pearson Pump Station Line. $ tern water losses shall be borne by the 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_�qosts of the General casts. South ake 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 monthl chi arges for Operation and Maintenance Costs for the General Benefit Facilities for the next 12 months shall be determined by the annual en5tsi e v e cfiober bill for ep ember usage s a re ecsany necessary 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-aatendar days from-tW billing date; pirivide 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 P A 2E D MAY 2 5 2006 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,'wlth 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.. . 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. 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 parry, 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 "� �Ig 2 r 2gg� necessary for. the construction or maintenance of these facilities, including exercising Southlake's power of eminent domain, if necessary. 7.2 Ail 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 facli ies 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 requirod to give 30 ddys 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. LIABILITY FOR bAMRGE2, 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 Facil'riies, 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. P A F 1) MAY 2 5 2066 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 Ke€ter and Southlake as co -insureds. Such contract must also provide that the independent contractors) 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. FQRCE 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 obilgations 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 rnajeure in writing to the other party within a reasonable time after the occurrence of.the event or cause relied on, the dbi€gation 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 su-6h inability with A 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, dofs, 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 deriver 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, (€€) sent by teiecopy or a nationally recognized overnight courser service, or (lit) mailed by registered or certif€ed mail, return receipt requested, postage prepaid. To Keifer: 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 A 7 D KAY 2 20906 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. 12A 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 10 h 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 sr -date for the mats ati6n heating. 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. INSP CTION 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 parry shall at all times, upon notice, have the right at reasonable times to examine and inspect said records and accounts during nofrnai 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 P A 1) mAy 2 5 ZC06 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 vith the provisions of this Agreement. The other party may elect to accompany the requesting parties 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 corrtinue 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 omiss lion 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. CAPTICJNS. 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 Ail -genders -used in this Agreement shall include the other genders, the singular shall iriclUdb the plural, and the plural shall Include tho sitigUlaP, WhehWet and as often as may be appropriate. 21. ENTIREAGREENET. 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 flies suit upon the same, the non -prevailing party shall pay the reasonable attorneys fees, expenses and costs of the prevailing party. r A I D MAY 2 5 2006 EXECUTED as of the date hereinabove first set forth. CITY OF SOUTHLAKE, TEXAS Lori Approv�d�arm Southlake City A rney Ell CITY OF KELLERi TEXAS Lyle H. fresher, City Manager A Approy to F L. Stanto o hY Attorney PAID '"y2, 2�6 EXHIBIT "A" 7 EXHiBFT "C" Existing Connections Outside of the Keifer System Norge Existing Connections Outside of the Southlake System None PAID MAY 2 5 2008 RESOLUTION NO, 2113 A. RESOLUTION OF THE CITY COUNCIL OF THE' CITY OF KELLER, TEXAS, APPROVING AN'INTERLOCAL AGREEMENT WITH THE CITY OF SOU"HLAKE, TEXAS, GOVERNING THE FUNDING, C0NSTRUCTION, AND MAINTENANCE OF WATER TRANSMISSI0N LINES; AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF KELLER, TEXAS. WHEREAS, in I9a4, the City of Keller, Texas, and the 7 City of Southlake, Texas, entered into an interlocal agreement, governing the 8 financing, construction, and maintenance of sbared existing water supply facilities 9 that included the Keller-Southlake' Pump 10 Station at Alta Vista, and the 36-inch and 30-inch water supply, lines, servicing 11 Keller and Southlake's ground storage facilities near Pearson Lane; and WHEREAS, the 2984 interlocal, agreement included a 1A provision for the City of Southlake--to sell 14 the City of Keller treated water, obtained from the City of Fort Worth, through these 15 shared'facilities; and 16 WHEREAS, the City of Teller and the City of 17 Southlake own and operate their own water distribution systems, and each city has a 18 contract with the City of Fort Worth to purchase wholesale, treated water; and 19 WHEREAS, the City of Keller and the City of 20 Southlake have determined that it is in the best interest of the citizens of their 21 respective cities to adopt a new interlocal 22 agreement, for the construction of new water supply facilities; to meet current 23 and future demand; to provide for the operation and maintenance of existing and 24 new water supply facilities; and to incorporate changes, as a result of 25 amendments to each cities, contracts with 26 the City of Port Worth, including an amendment, whereby, the City of Keller will F A X D MAY 2 5 2006 M1 1 AND IT ZS SO RESOLVBA. 2 Passed by a vote of S to 0 on this the 20th clay of January, 2004. 4 CITY 'OF nLLER, TEXAS Fi 7 ulie A. Tandy, May 9 ATTEST: 10 11 Sheil tephens, Cit 6ecretery 12 Approved to F and Legality: 19 14 L. to L C' y Attorney 15 16 17 18 25 2811 4 r A D, MAY 2 5 20DS