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HomeMy WebLinkAbout417 01-11-1972ORDINANCE NO. 417 AN ORDINANCE AUTHORIZING THE MAKING OF A CONTRACT BETWEEN THE CITY OF EULESS, TEXAS, AND TRINITY RIVER AUTHORITY OF TEXAS; PRESCRIBING THE FORM OF SAID CONTRACT; ORDAINING OTHER PROVISIONS RELATING TO THE SUBJECT; AND DECLARING AN EMERGENCY. THE STATE OF TEXAS ij COUNTY OF TARRANT it CITY OF EULESS �I 1r11'1EREAS it is desirable and necessary for the City of Euless, Texas, to enter into a contract with Trinity River Authority of Texas for the purpose of providing treated water to said City; and LRIEREAS, this ordinance must be passed as an emergency measure; THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF EULESS: ii Section 1. This City shall enter into a contract with Trinity River Authority of Texas in substantially the form attached hereto and made a part hereof for all purposes. Section 2. That the said contract shall be signed on behalf of this City by its Mayor and attested by the City Secretary. I Section 3. This ordinance is hereby declared to ba an emergency measure and is passed as such for the- immediate preservation of the public peace, health or safety of the citizens of the City of Euless, Texas. Section 4. All ordinances or resolutions in conflict herewith are hereby expressly repealed. i PASSED AND APPROVED this 11th day of January, 19720 Mayor, City of-Euless, Texas �i ATTEST City Secretary, City of Euless, .. Texas �• _ APPROVEDD. AS TO FORM ( SEAL) i LEGALITY: Y., City of Euless, THE STATE OF TEXAS . COUNTY OF TARRANT THIS CONTRACT (hereinafter called "Contract") made and entered into as of the 21st day of January, 1972, by and between Trinity River Authority of Texas, a governmental agency and a body politic and corporate, created by Chapter 518, Acts of the Regular Session of the 54th Legislature, pursuant to Article XVI, Section 59 of the Constitution of Texas (herein called "Authority "), and the City of Euless, Texas, a municipal corporation of the State of Texas, acting under the laws of the State of Texas and its home rule charter (herein called "City "); W I T N E S S E T H WHEREAS, City owns and operates its water distribution system and is in need of an additional source of water supply; and WHEREAS, Authority has contracted with Tarrant County Water Control and Improvement District Number One (herein called "District ") for a water supply; and WHEREAS, Authority proposes to issue its Bonds for the purpose of constructing facilities to enable it to supply treated water to City and to others (herein called "Project "), in accordance with a report of Knowlton- Ratliff- English - Collins, Consulting Engineers, entitled Report on Proposed Bedford- Euless Water System to Trinity River Authority of Texas, dated July, 19715 as such report may be amended or supplemented prior to the execution of construction contracts and as changed by change orders entered after construction contracts have been executed, or as such report may be amended or supplemented to provide expanded service in the future (herein called "Engineering Report "); and WHEREAS, it is desirable and necessary to City that Authority supply water to City; NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, Authority agrees to construct the Project in accordance with the Engineering Report and to supply water to City and City agrees to pay Auth- ority for water supplied upon terms and conditions hereinafter set forth, to -wit: Section 1, DEFINITION OF TERMS. Terms and express- ions as used in this Contract, unless the context clearly shows otherwise, shall have the following meanings: A. "Additional Contracting Party" means any party not defi -ned as a Contracting Party with whom Authority makes a contract for supplying treated water through the Project. 2 B. "Adjusted Annual Payment" means the Annual Payment, as adjusted due to service to Additional Contracting Parties and /or as required during or after each Fiscal Year, C. `Annual Payment" means the amount of money to be paid to Authority by City as its proportionate share of the Annual Requirement. Do "Annual Requirement" means the total amount of money required for Authority to pay all Operation and Maintenance Expense of the Project, to pay the debt service on its Bonds and Outstanding Bonds and to pay any amounts required to be deposited in any special or reserve funds required to be established and /or maintained by the provisions of the Bond Resolution. E. "Bond Resolutions" means the resolutions of Authority which authorize the Bonds. F. "Bonds` means the revenue bonds issued by Authority, whither one or more issues, and the interest coupons appertaining thereto, to finance the Project. Go "Contracting Parties" means the Cities of Euless ai)d Bedford. H. "Fiscal Year" means the fiscal year of Authority, which is December 1 through November 300 3 I. "Operation and Maintenance Expense" means all costs of operation and maintenance of the Project including (for greater certainty but without limiting the generality of the fore- going) repairs and replacements for which no special fund is created in the Bond Resolutions, the cost of utilities, super- vision, engineering, accounting, auditing, legal services, and any other supplies, services, administrative costs and equipment neces- sary for proper operation and maintenance of the Project, and payments made by Authority in satisfaction of judgments resulting from claims not covered by Authority's insurance or not paid by either City or the City of Bedford arising in connection with-the operation and maintenance of the Project. The term also includes the charges of the bank or banks where the Bonds are payable. Section 2. CONSTRUCTION OF PROJECT. Authority will construct the Project in accordance with the Engineering Report. It is anticipated that such construction will be in phases and that each phase will be financed by Authority through the issuance of its Bonds. Authority will notify City at least one year in advance of the issuance of any Bonds, after Bonds for the first phase of construction, in accordance with the Engineering Report, have been delivered. Provided, City may request Authority to finance and construct a phase of the Project at any time and Authority may issue Bonds without giving one year's notice in cases of emergency. Any resolution authorizing any Bonds shall be submitted to City for approval as to form and substance, 4 except as to price, interest rate and purchaser. No such resoiu= tion shall be binding on City until approved by ordinance or resolution by City. Section 3. QUANTITY, QUALITY, POINTS OF DELIVERY, MEASURING EQUIPMENT, UNIT OF MEASUREMENT AND DELIVERY PRESSURE. A. QUANTITY. Authority agrees to sell and to deliver to City at the Delivery Point or Points hereinafter provided, and City agrees to purchase and take at such Delivery Point or Points all treated water required by City during the period of this agreement for its own use and for distribution to all of the customers served by City's distribution system, except to the extent otherwise provided herein. Authority will use its best efforts to remain in position to furnish water sufficient for the reasonable demands of City, but its obligations shall be limited to the amount of water available to it under its con- tract with District and by its commitments to other Contracting Parties and Additional Contracting Parties. Provided that the the Authority will not obligate to furnish water to Additional Contracting Parties which will jeopardize the Authority's ability to provide to Bedford and Euless the Average Demand during Peak Month, as projected by Figure B of the Engineering Report, unless such obligation has been agreed to by Council Resolution of the Cities of Bedford and Euless. E B. QUALITY, The water to be delivered by Authority and received by City shall be potable treated water meeting applicable purity standards of the Texas Department of Public Health. City has satisfied itself that such water will be suitable for its needs. C. POINTS OF DELIVERY. The Point or Points of Delivery into City's distribution system shall be as designated in the Engineering Report. D. MEASURING EQUIPMENT. (a) Authority shall furnish, install, operate and maintain at its own expense the necessary metering equipment of standard type for measuring properly the quantity of water delivered under this agreement. Such metering equipment shall be located on Authority's supply main at a location to be designated by Authority. Such meter or meters and other equipment so installed shall remain the property of Atthority, City shall have access to such main metering cqui_]-)- ment at all reasonable tines, but the reading, calibration and adjustment thereof shall be done only by the employees or agents of Authority. For the purpose of this agreement, the original record or reading of the main meter shall be the journal or other record book of Authority in its office in which the records of 6 the employees or agents of Authority who take the reading are or may be transcribed. Upon written request of City, Authority will give City a copy of such journal or record book, or permit City to have access to the same in the office of Authority during reasonable business hours, (b) Not more than once in each calendar year, on a date as near the end of such calendar year as practical, Authority shall calibrate its main meter or meters, if requested in writing by City to do so, in the presence of a representative of City, and the parties shall jointly observe any adjustments which are made to the meter in case any adjustments shall be necessary, and if the check meter hereinafter provided for has been installed, the same shall also be calibrated by City in the presence of a representative of Authority and the parties shall jointly observe any adjustment in case any adjustment is necessary, If City shall in writing request Authority to calibrate its meters and Authority shall give City written notice of the time when any such calibration is to be made and a representative of City is not present at the time set, Authority may proceed with calibration and adjustment in the absence of any representative of City. (c) If either party at any time observes a variation between a main delivery meter and the check meter, if any such 7 check meter shall be installed, such party will promptly notify the other party, and the parties hereto shall then cooperate to procure an immediate calibration test and joint observation of any adjustment and the main meter shall then be adjusted to accuracy. Each party shall give the other party forty -eight (48) hours' notice of the time of any test of meter so that the other party may conveniently have a representative present. (d) If, upon any test, the percentage of inaccuracy of metering equipment is found to be in excess of two percent (2 %), registration thereof shall be corrected for a period.ex- tending back to the time when such inaccuracy began, if such time is ascertainable, and if such time is not ascertainable, then for a period extending back one -half (1/2) of the time elapsed since the last date of calibration, but in no event farther back than a period of six (6) months. If, for any reason, the main meter is out of service or out of repair so that the amount of water de- livered cannot be ascertained or computed from the reading thereof, the water delivered, through the period such meter is out of service or out of repair, shall be estimated and agreed upon by the parties thereto upon the basis of the best data available, For such purpose, the best data available shall be deemed to be M. the registration of any check meter if the same has been installed and is accurately registering. Otherwise, the best data available shall be deemed any other meters in the transmission line or treatment plant which can be related to the main delivery meter. If no other meters in the system are operational which will allow determination of delivered quantity, then the amount of water delivered during such period may be estimated (i) by correcting the error if the percentage of error is ascertainable by calibra- tion tests or mathematical calculation, or (ii) by estimating the quantity of delivery by deliveries during the preceding periods under similar conditions when the meter was registering accurately. (e) City may, at its option and its ox�Tn expense, install and operate a check meter to check the meter installed by Authority, but the measurement of water for the purpose of this agreement shall be solely by the Authority's meter, except in the cases he-reinabove specifically provided to the contrary. Such chock meter shall be of standard make and shall be subject at all reasonable times to inspection and examination by any employee or agent of the Authority, but the reading, cal:ib-ation and adjustment thereof shall be made only by the City, except during any period when a check meter may be used under the pro- visions hereof for measuring the amount of water delivered, in 9 which case the reading, calibration and adjustment thereof shall be made by Authority with like effect as if such check meter had been furnished or installed by Authority. E. UNIT OF MEASUREMENT. The unit of measurement for water delivered hereunder shall be 1,000 gallons of water, U. S. Standard Liquid Measure, F. DELIVERY PRESSURE. The water shall be delivered by Authority at the point of delivery at a pressure sufficient to transmit the water into the City's distribution system. Section 4. FISCAL PROVISIONS. A. FINANCING. Author- ity will pay for the cost of construction of the Project and will issue its Bonds in amounts necessary which, together with other available funds, if any, will be sufficient to accomplish such construction. B. Ati1NUAL REQUIREMENT. It is acknowledged and agreed that payments to be made under this contract and similar contracts t�ith other Contracting Parties and Additional Contracting Parties will be the only source available to Authority to provide the Annual Requirement; and that the Authority has a statutory duty to establish and from time to time to revise the charges for services to be rendered and made available to City hereunder so �_ 0 that the Annual Requirement shall at all times be not less than an amount sufficient to pay or provide for the payment of: (a) All Operation and Maintenance Expense; (b) the principal of and the interest on the Bonds, as such principal and interest become due, less interest to be paid out of Bond proceeds as per- mitted by the Bond Resolution; (c) during each Fiscal Year, the proportionate part of any special or reserve funds required to be established and /or maintained by the provisions of the Bond Resolution; and (d) an amount in addition thereto sufficient to re- store any deficiency in any of such funds or accounts required to be accumulated and main tained by the provisions of the Bond Resolution. Ca PAYIENTS BY CITY. (a) For services to be rendered to City by Authority hereunder, City agrees to pay, at the time and in the manner herein provided, its proportionate share of the Annual Requirement, which shall be determined as follows and shall constitute City's Annual Payment: (i) For the Fiscal Year 1974 (the first year of operation or fraction thereof), the City's proportionate share of the Annual Requirement shall be a percentage obtained by dividing City's estimated annual treated water require- ment by the total estimated volume to be treated and used by all Contracting Parries. 'ilze following tabulation shall apply for the Fiscal Year 1974: 11 Estimated 1974 Contracting Party Usage Euless 2.6 I:GD Bedford 1.6 MGD Total Percentage of Total 62 % 38 % 100 % City's Annual Payment for the Fiscal Year 1974 shall be calculated by multiplying City's percentage from the above tabula- tion times the Annual Requirement, City's Annual Payment shall be made to Authority in twelve equal monthly installments. In the event Authority is unable to offer service under this contract to City for the complete Fiscal Year of 1974, the portion of City's Ar:nual Payment attributable to Operation and Maintenance Expense shall be reduced to the prorata portion of the Fiscal Year for which service is provided. Such payments shall be made in accord- ance with and at the times set forth in a Schedule of Payments for 1974. which will be supplied to City. At the close of the 1974 Fiscal Year, Authority shall determine City's percentage by dividing City's actual metered usage by the total actual metered usage of the System by all Contracting Parties. City's Adjusted AnnuL,l Payment shall be calculated by multiplying City's redeter- r.i_ned percentage times the Annual Requirement. The difference 12 between the Adjusted Annual Payment and the Annual Payment, if any, when determined, shall be applied as a credit or a debit to City's account with Authority and shall be credited or debited to City's next subsequent monthly statement, (ii) For the Fiscal Year 1975 and each succeeding Fiscal Year thereafter, City's proportionate share of the Annual Requirement shall be a percentage obtained by dividing City's estimated treated water requirement for such year by the total estimated treated water requirement of all Contracting Parties for such year. Calculation of Annual Payment and Adjusted Annual Payment for 1975 and each succeeding Fiscal Year thereafter shall be determined in the manner described in (1) above. (b) If, during any Fiscal Year, Authority begins providing services to an Additional Contracting Party or Parties, City's Annual Payment for such Fiscal Year shall be determined in the following manner: (i) Such Additional Contracting Party or Parties estimated I reated water requirement for such year, or portion thereof, shall be determined by Authority; (ii) City's proportionate share of the Annual Requirement shall be a percon,tage, redeterrained by divia -inS City's estimated treated water requirement by the total annual estimated treated wl ter requircment by all Cont-ractii.g Parties, including that estimated for the Additional Contracting Party or Parties for the remaining portion of such Fiscal Year; 13 (iii) Authority shall redetermine the Annual Requirement, taking into consideration any costs incurred on account of the Additional Contracting Party or Parties; (iv) City's Annual Payment shall be redetermined by multi- plying City`s redetermined percentage times the re- determined Annual Requirement; (v) Following the first Fiscal Year or part thereof of service to an Additional Contracting Party, City's Annual Payment shall be determined annually in the manner set forth above, incorporating the Additional Contracting Party in the calculations on the same basis as all parties being served by the System. (c) City's Annual Payment shall also be redetermined, in the manner set out above, at any time during any Fiscal Year if: (i) Additions, enlargements or improvements to the Project are constructed by Authority to provide continuing service which in turn requires a redetermination of the Annual Requirement; or (ii) Unusual or extraordinary expenditures for main- tenance and operation are required which are not provided for in the Annual Budget or in the Bond Resolution. (d) On or before November 1 of each year, Authority shall furnish City with a schedule of the monthly payments to be made by such City to the Authority for the ensuing Fiscal Year. City hereby agrees that it will make such payments to the Authority on or before the 10th day of each month of such Fiscal Year, If the City at any time disputes the amount to be paid by it to 14 Authority, City shall nevertheless promptly make the payment or payments determined by Authority, and, if it is subsequently determined by agreement, arbitration or court decision that such disputed payments made by City should have been less, or more, Authority shall promptly revise and reallocate the charges among all parties then being served by Authority in such manner that City will recover its overpayment or Authority will recover the amount due it. (e) If City's Annual Payment is redetermined as is herein provided, Authority will promptly furnish City with an updated schedule of monthly payments reflecting such redetermination. Section S. SPECIAL PROVISIONS. (a) Authority will proceed to finance and construct the Project to the end that it will be able to deliver treated water to City beginning on June 1, 1974, or when District is capable of delivering water through its Cedar Creek Pipeline into Village Creek or shall otherwise deliver water into Lake Arlington, whichever date is later. It is specifically -recognized by City that Authority will not be able to deliver water under this contract until water is available to Authority under its contract with District. Accordingly, Authority 15 shall not be liable to City for any damages occasioned by delay in delivering water hereunder which are occasioned by delay in re- ceiving water from District. (b) Title to all water supplied hereunder shall remain in Authority through the Point(s) of Delivery, and upon passing through the Point(s) of Delivery, such title to the water shall pass to City. Each of the parties hereto agrees to save and hold the other party harmless from all claims, demands and causes of action which may be asserted by anyone on account of the trans- portation and delivery of said water while title remains in such party. (c) It is expressly understood and agreed that any obligations on the part of Authority to complete the Project and to provide water to City shall be conditioned upon the completion of necessary arrangements for the withdrawal of water from Lake Arlin ton or otherwise obtaining water under Authority's contract with the District and Authority's ability to obtain all necessary material, labor and equipment and upon the ability of Authority to finance the cost of the Project through the actual sale of Authority's Bonds. (d) Authority shall never have the right to demand payment by City of any obligations assumed by it or imposed on 16 it under and by virtue of this contract from funds raised or to be raised by taxes levied by City. City's obligations under this contract shall never be construed to be a debt of the City of such kind as to require it under the law of this State to levy and collect a tax to discharge such obligation, it being expressly understood by the parties hereto that all pa rents due by City hereunder are to be made from water and sewer revenues received by City. (e) City represents and covenants that all payments to be made hereunder by it shall constitute "Operating Expenses" of its waterworks and sewer system as defined in Article 1113 of the Revised Civil Statutes of Texas, as amended, and that all such payments will constitute operating expenses of City's waterworks and sewer system. (f) City agrees to fix and collect such rates and charges for water and sewer services to be supplied by its waterworks and sewer system as will produce revenues in an amount equal to at least t1.e minima ?n payments due under this contract and to comply with provis- -tons of ordinances authorizing its outstanding revenue bonds. (g) It is agreed and understood by the parties to this agreement that the Authority will supply, and City shall take, 17 all of the water to be used in City during the term of this agreement. However, it is understood that in order for the City to be able to meet the limiting ratio of maximum day's use to average annual use stipulated in the heretofore described contract between Authority and District, the City may ultimately require supplemental well supply; and therefor, City must maintain its existing wells in good operating condition at all times. The props maintenance of these wells will require periodic operation and such operation is considered acceptable. Also, at such times as peak demands on the City's water system may exceed the capabil- ities of the Authority's facilities to deliver treated water or at such times as the Authority's facilities may be totally or partially out of service, the City may furnish additional water needed by using these existing wells. (h) Authority shall not be liable to City for any damages occasioned by the inability of Authority to supply all water required by City if such inability is caused by the inabil- ity of District to deliver all water required by Authority to meet its contractual obligations. (i) In the event Authority is sued or is placed on notice of demand for payment of a claim or claims not covered by Authority's 18 insurance or claims not paid by either Euless or Bedford arising in connection with the operation and :maintenance of the Project, then in any o said events, Authority shall forthwith notify City in writing as to the nature of the claim or litigation which could result in an increase in operation and maintenance ey.pense. City shall have ten (10) days from receipt of such written notification in which to advise and comment to Authority concerning any claim, suit or demand for payment and Authority shall duly consider City's advice and comments in any final disposition of said claim or demand for payment. Section 6. FORCE MAJEURE. (a) If by reason of force majeure either party hereto shall be -rendered unable wholly or in part to carry out its obligations under this contract, other than the obligation of City to make the payments required under (b) of this section, then if such party shall give notice and full Particulars of such force maj,�ure in writing to the other party witizin a reasonable time after occurrence of the event or cause relied on, the obligation of tha party giving such notice, so far as it is affected by such force majeure, shall be susponded Luring the continuance of the inability then claimed, but for no longer 19 period, and any such party 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 tiZe 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, drouths, arrests, restraint- of government and people, civil disturbances, explosions, breakage or accidents to machinery, pipelines or canals, partial or entire I ailure of water supply, and inability on part of Authority to deliver water hereunder for any reason, or the City to receive water hereunder for any reason, or on account of any other causes not reasonably within the control of the party claiming such inability, (b) Recognizing that the Authority will use payments received by City and others to pay, secure and finance the issuance of the Bonds, '.Lt is hereby agreed that upon the issuance .end sale of any Bonds by the Authority to provide funds for the project. City shall be uncondit-" -L� ally obligated to pay its proportionate 20 share of the debt service on such Bonds, regardless of whether or not the Authority is actually delivering water to City hereunder, or whether or not City actually takes water hereunder, whether due to Force Majeure or otherwise. Under such circum- stances., the amount due to Authority from City shall be a percentage Of the debt service on the Bonds for the period of any such failure of service hereunder. Such percentage shall be the last percentage used by Authority in determining City's Annual Payment prior to any such failure of service, and, in the event service is not begun hereunder, such percentage shall be that specified in the table in Section. 4C(a) (i) hereof. TiZis covenant by City shall be for the holders of the Bonds. Section 7. LIMITATION Or AUTHORITY OBLIGATION. This contract is in all things subject to the heretofore described contract between Authority and District. By the execution of this contract, City acknowledges that it has received and revLcwed a true copy of such contract. City agrees that it will take no action which would cause a violation of Authority's contract with District. In the event that the amount of water availaLle to Authority under its contract ith District is i17- sufficie -t to supply all requirements of City, City may utilize 21 water from other sources to fulfill its needs in amounts which Authority is unable to supply. Section S. TERM OF CONTRACT; MODIFICATION; NOTICES. A. TERIM OF CONTRACT. 'Innis contract shall be effective upon execution hereof and shall continue in force and effect for a period of thirty -five (35) years from the date District is capable of delivering water to Authority and thereafter shall continue in effect until all Bonds and refunding bonds issued in lieu of the Bonds have been paid. B. MODIFICATION, No change or modification of this contract shall be made which will affect adversely the prompt pa;m.ent when due of all moneys required to be paid by City under the te=ms of this contract and no such change shall be effective which would cause a violation of any provisions of any resolution of Authority authorizing the issuance of Bonds or any bonds issued to refund any of the Bonds, C. NOTICES. All notices or communications provided for herein shall be in writing and shall be either delivered_ to City or Authority, ors, if mailer, shall be sent by registered infl -L pcstage prepaid, addressed , City or Authority at their respective addresses. 22 D. SEVERABILITY. The parties hereto agree that if any of the provisions of this contract should be or be held to be invalid or to contravene the laws of this State, or the United States, such fact shall not invalidate the whole agreement, but it shall be construed as though not containing that particular pro- vision, and the rights and obligations of the parties shall be construed and remain in force accordingly. E. CONTINUED SERVICE. The parties hereto agree that upon the expiration of this contract that City shall have the right to continued service for an additional period of fifty (50) years, or forsuch other time as may be agreed, upon execution of an appropriate agreement between City and Authority. IN WITNESS 1�,1 ERE - OF, the parties hereto acting under authority of their respective governing bodies have.caused this contract to be duly executed in several counterparts, each of which shall constitute an original, all as of the day and year first above written. ATTEST: Secretary (ALiHORITY SEAL) TRINITY RIVER AUTHORl•'1. ' Olj TEXAS BY 23 General Manager ATTEST . City Secretary (CITY SEAL) CITY OF EULESS, TEL4S BY Mayor 24