HomeMy WebLinkAboutRes 2009-08-03 Melissa-Anna Wastewater Service Agreement.pdfCITY OF ANNA, TEXAS
RESOLUTION NO. 2009-08-03
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS,
APPROVING THE CITY OF MELISSA -CITY OF ANNA WAS'rEWATER SERVICE
AGREEMENT
WHEREAS, the City of Anna has entered into contracts with the City of Melissa to
jointly fund the construction of certain portions of the Throckmorton Creek outfall main
and the Clemons Creek outfall main as more fully defined in certain joint construction
agreements for said lines including the Interlocal Agreement By and Between the City of
Melissa, Texas and the City of Anna, Texas for Clemons Creek executed by Melissa on
March 1, 2004 and by Anna on March 3, 2004 and the Interlocal Agreement By and
Between the City of Melissa, Texas and the City of Anna, Texas for Throckmorton
Creek and Trinity River Sewer lines executed by Melissa on May 26, 2006 and by Anna
on May 19, 2006, said agreements being referenced herein collectively as "Interlocal
Agreements"; and,
WHEREAS, the City of Anna City Council ("City Council") desires to enter into the City
of Melissa -City of Anna Wastewater Service Agreement ("Agreement"), which is
attached hereto as Exhibit 1, and which will specify the terms and obligations governing
the City of Anna's use of said lines for transporting untreated wastewater; and,
WHEREAS, the City Council adopts this Resolution in accordance with Government
Code §791.001, et seq., the Interlocal Cooperation Act, and in association with the
I nterlocal Agreements;
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ANNA, TEXAS THAT:
Section 1. Recitals Incorporated
The recitals set forth above are incorporated herein for all purposes as if set forth in full.
Section 2. Approval of Agreement and Authority to Execute
Contingent on the City of Melissa's approval of same, the City Council hereby approves
of and enters into the Agreement, and authorizes the Mayor to execute the Agreement
on the City's behalf.
PASSED by the City Council of the City of Anna, Texas, on this 25th day of August,
2009.
Res. 2009-08-03 Melissa/Anna Wastewater Service Agreementdoc PAGE 1 OF2
ATrEST:
Res. 2009-08-03 Melissa/Anna Wastewater Service Agreement.doc PAGE 2 OF 2 08-25-09
City of Melissa -City of Anna Wastewater Service Agreement
The City of Melissa ("Melissa") and the City ofAnna ("Anna") hereby enter into this
Wastewater Service Agreement (this "Agreement"), with an effective date
WHEREAS, Melissa and the North Texas Municipal Water District (the "District") have
duly entered in to an "Amended Regional Wastewater Customer Service Contract for Customer
Service with the City Of Melissa" dated January 27, 2009 (the "Melissa-District Contract"),
attached hereto as Exhibit A, which requires the District to operate and maintain a wastewater
collection and treatment system to provide wastewater service to Melissa; and
WHEREAS, Melissa represents and warrants that the Melissa-District Contract is the
only current agreement between Melissa and District concerning District's provision of
wastewater collection and treatment services to Melissa and that this Agreement is in no way
limited by or in conflict with the Melissa-District Contract; and
WHEREAS, Melissa and Anna have contracted to jointly fund the construction of
certain portions of the Throckmorton Creek outfall main and the recently constructed Clemons
Creek outfall main as more fully defined in the joint construction agreements for said lines
including the Interlocal Agreement By and Between the City of Melissa, Texas and the City of
Anna, Texas for Clemons Creek executed by Melissa on March 1,2004 and by Anna on March
3, 2004 and the Interlocal Agreement By and Between the City of Melissa, Texas and the City
Of Anna, Texas for Throckmorton Creek and Trinity River Sewer lines executed by Melissa on
May 26, 2006 and by Anna on May 19, 2006, attached hereto, respectively, as Exhibit B and
Exhibit C, and referenced herein collectively as "Interlocal Agreements"; and
WHEREAS, Melissa and Anna have each entered into and executed respective
agreements for debt financing for said wastewater outfall mains and appurtenances, said mains
and appurtenances to be collectively referenced herein as the "System"; and
WHEREAS, Melissa and Anna desire to specify an agreed amount of available
wastewater flow capacity through the System for Anna by allocating a certain portion of the
Melissa wastewater flow capacity under the Melissa-District Contract to Anna; and
WHEREAS, Melissa and Anna agree that planning for regional treatment will be more
cost effective than continuing to construct small phases of local wastewater treatment facilities;
and
WHEREAS, Melissa and Anna mutually agree to be subject to the provisions of Texas
Government Code §791.00l, et seq., the Interlocal Cooperation Act, and other applicable
sections, statutes, and contracts pursuant thereto and that all fees and costs incurred by either
party as a result of their respective obligations hereunder shall be paid from current revenues
legally available to each party.
NOW, THEREFORE, Melissa and Anna mutually agree to the following terms and
conditions:
City ofMelissa City of Anna Wastewater Service Agreement Page 1
I. RECITALS
The recitals set forth above are incorporated into this Agreement as if set forth in full for
all purposes.
II. PURPOSE
The purpose of this Agreement is for Melissa to make an allocation to Anna a certain
portion of the wastewater flow capacity that Melissa is guaranteed under the Melissa
District Contract, which is incorporated herein by reference for all purposes, so that Anna
can utilize the System by discharging into the Melissa part of the System certain agreed
upon amounts of wastewater. This Agreement is also intended to set forth: (1) the areas
from which Anna shall be entitled to allow wastewater to flow into the System; (2)
Anna's agreement to pay Melissa a proportional share of monthly transmission and
treatment costs under the Melissa-District Contract and other related costs as set forth in
this Agreement; and (3) the parties' other respective rights and obligations related to
these purposes.
III. WASTEWATER FLOW CAPACITY
A. It is agreed that the wastewater discharged by Anna through the Anna
metering stations-which shall be located at and measure the flow of Anna
wastewater into Point of Entry A and Point of Entry B as described in further
detail in the Melissa-District Contract-and into the Melissa part of the
System shall not exceed:
1. An average daily flow of333,200 gallons or a maximum day flow
of 833,000 gallons at Point of Entry A; and
2. An average daily flow of 644,000 gallons or a maxImum day flow of
1,610,000 gallons at Point of Entry B.
B. All wastewater discharged by Anna under this Agreement shall meet the
effluent quality standards specified in the Melissa-District Contract and Anna
must at all times comply with applicable state and federal law.
C. The geographical area from which Anna may collect and transfer wastewater
into the Melissa part of the System is limited to the area illustrated on the
attached Exhibit D, titled "Service Area Map B."
D. The location of Point of Entry A and Point of Entry B are as more particularly
described on the attached Exhibit E.
IV. AMOUNT OF PAYMENT FOR FLOW VOLUME AND RELATED WASTEWATER
SERVICES
A. Charges for service to Anna shall be determined by the current unit cost per
thousand gallons as provided for in the Melissa-District Contract as applied to
Melissa Anna Wastewater Service Contract for service within areas of Anna page 2
8/18/2009
Anna's combined actual annual-flow gallons as measured by the metering
stations at Point of Entry A and Point of Entry B.
B. In addition, Anna shall be charged for System maintenance in accordance with
the provisions regarding same and set forth in the Interlocal Agreements.
C. Melissa and Anna agree that Anna has, as of the date of this Agreement, not
satisfied the obligation to pay its portion of the right-of-way acquisition costs
as required in the Interlocal Agreements, said amount being a total of One
Hundred Eighteen Thousand, Three Hundred Thirty-Two and 00/1 00 Dollars
($118,332.00) (the "Right-of-Way Costs"). Simultaneously with its execution
of this Agreement, Anna shall tender the Right-of-Way Costs to Melissa,
which shall be in full and final satisfaction of Anna's obligations with respect
to right-of-way acquisition costs to date under the Interlocal Agreements.
V. PAYMENT PROCEDURES
Payments for service shall be made monthly by Anna to Melissa consistent with the
payment provisions of the Melissa-District Contract, subject to following special
provisions:
A. Melissa shall send a written invoice to Anna on the 1st of each month (meter
reading shall be by either Melissa or District) showing the amount of actual
flow for that billing period and any maintenance costs. Each month's invoice
is due to be paid within 10 days of Anna's receipt of the invoice. If an invoice
remains unpaid for more than 30 days after it was sent, a late charge in the
amount of 10% ofthe invoice shall accrue.
B. The first monthly payment due each fiscal year shall be twice the calculated
monthly payment with no payment due during the last month of the fiscal year
except for costs caused by adjustments based on actual flow or System
expense. At the end of each fiscal year, any deficit shall be billed to Anna and
any credit shall be applied to Anna's billing for the next fiscal year.
VI. OTHER
A. Title to all wastewater shall be in Anna until discharged at any Point of Entry
into Melissa's part of the System, as such points are identified herein and at
which point title to such wastewater shall pass to Melissa. Melissa reserves
the right of re-use of wastewater treated effluent to the extent authorized by
the State of Texas.
B. Ownership of the wastewater meter that measures the Anna volume on each
transmission main passing through Entry Point A and Entry Point B shall be
vested with Melissa until such time as the District accepts ownership of said
meters, at which time ownership of the meters and meter vaults shall be vested
in District. Until then, the wastewater meters at Entry Point A and Entry Point
B herein shall be maintained by Melissa in accordance with the District's
Melissa -Anna Wastewater Service Contract for service within areas of Anna page 3
8/1812009
Standard Maintenance Policy for such meters. Anna shall have the right to
request verification of the accuracy of the meters by witnessing Melissa's
calibrations. Should disagreement arise regarding the accuracy of the meters,
Anna shall have the right to have an outside meter company evaluate the
meters with Melissa personnel present once in any six (6) month period. Any
meter adjustment shall not be for a time period greater than six (6) months.
C. Anna and Melissa shall each have access to meters and controls on the meter
station sites where the Anna flow is transferred into the Melissa part of the
System.
D. Melissa and Anna hereby agree to work in good faith toward a restructuring of
this Agreement upon any circumstances that would provide relief or additional
wastewater capacity being discharged by Melissa for treatment by the District
or would otherwise allow for greater treatment capacity. The goal of such
restructuring will be to provide the City of Anna with wastewater flow
capacity consistent with Melissa's Obligation set forth in the previous
Interlocal Agreements. Such restructuring shall be in the form of a separate
written agreement between District and Anna or an amended agreement
between District and Melissa in the event that Anna is unable to secure after
negotiating in good faith, an agreement directly with the District for increased
capacity.
E. Anna and Melissa agree to perform their obligations under this Agreement
consistent with the Melissa-District Contract.
VII. TERM/TERMINATION
A. The term of this Agreement is indefinite unless otherwise agreed to in writing
by the parties in accordance with applicable law and/or unless terminated
earlier as provided herein.
B. No party shall be in default under this Agreement until written notice of the
alleged failure of such party to perform has been given (which notice shall set
forth in reasonable detail the nature of the alleged failure) and until such party
has been given a reasonable time to cure the alleged failure (such reasonable
time determined based on the nature of the alleged failure, but in no event less
than thirty (30) calendar days after written notice of the alleged failure has
been given; however, such period shall be extended for such reasonable
periods that may be required under the circumstances so long as the breaching
party is diligently prosecuting the cure of such breach to completion not to
exceed ninety (90) calendar days from receipt of the notice of failure to
perform described herein. The non-defaulting party may, at its sole option
and in writing, extend the time to cure for a duration reasonable under the
circumstances.
C. In the event that a party materially breaches this Agreement after being
provided with the notice described in Paragraph VII(B) and failing to cure the
Melissa Anna Wastewater Service Contract for service within areas of Anna page 4
811812009
breach as provided therein, either party shall have available to it all rights and
remedies at law or in equity. In a suit for breach of this Agreement, the
prevailing party shall be entitled to its reasonable and necessary attorney fees.
D. The parties may terminate this Agreement at any time upon mutual written
consent.
TIDS CONTRACT APPROVED BY THE City Council of the City of Anna at its Regular
meeting on the ~1' day of ALlt".s r 2009, with authorization for the Mayor and
City Secretary to execute the agreeme t on behalf ofthe City of Anna.
CITY OF ANNA
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TIDS CONTRACT REVIEWED~~m~~BY THE CITY COUNCIL OF THE
CITY OF MELISSA in a Regular meeting on the day of _______
2009 with authorization for the Mayor and City Secretary to execute the agreement on behalf of
the City of Melissa.
CITY OF MELISSA
ATTEST:
CITY SECRETARY MAYOR
Melissa -Anna Wastewater Service Contract for service within areas of Anna page 5
8/18/2009
&tll.·lJir A
NORTH TEXAS MUNICIPAL WATER DISTRICT
REGIONAL WASTEWATER CUSTOMER SERVICE CONTRACT
FOR CUSTOMER SERVICE WITH THE CITY OF MELISSA
WHEREAS, the North Texas Municipal Water District (the "District") and the City of
Melissa have entered into a "Regional Wastewater Customer Service Contract" effective October
1, 2002 (the "Contract"), which provides for District to operate and maintain a wastewater
collection and treatment system to provide wastewater service to City of Melissa; and
WHEREAS, pursuant to the Contract, the District currently provides wastewater
collection and treatment service for the following areas within the City of Melissa: 1) the City of
Melissa's Old Downtown Area at a Point of Entry ge:nerally located in McKinney near Highway
380 and Highway 5, ("Point of Entry No. 1"); 2) approximately 380 lots in the Hunter's Ridge
Development and approximately 2,000 lots in the Tremore Development at a Point of Entry
generally located between Highway 75 and Highway 5 ("Point of Entry No.2"), and 3)
approximately 1 ,500 lots in the Liberty Development, approximately 800 lots in the Wmchester
Farms Development, approximately 930 lots in the North Creek Development and approximately
1,300 lots in the Harlan Property Developments, at a Point of Entry generally located east of the
DART Railroad ("Point of Entry No.3"); and
WHEREAS, the District transports wastewater collected at Point of Entry Nos. 1, 2
and 3 through the District's Upper East Fork Regional Interceptor System for subsequent
treatment; and
WHEREAS, the City of Anna owns and operates its own wastewater treatment plant
("WWTP"); and
WHEREAS, the wastewater flow to the City of Anna's WWTP has increased and is in
excess of the current treatment capacity; and
WHEREAS, effluent discharged from the City of Anna's WWIP ultimately enters Lake
Lavon, a primary water source for the District; and
WHEREAS, a reduction of wastewater flow to the City of Anna's WWTP will increase
the operating efficiency of the WWTP and improve the water quality of the effluent being
discharged from the WWTP; and
WHEREAS, the Contract allows the City of Melissa to discharge an average day flow of
833,000 gallons of wastewater per day into Point of Entry No.2 and an average day flow of
1,6 i 0,000 gallons of wastewater per day into Point ofEntry No.3; and
WHEREAS, the average day wastewater flows from the City of Melissa entering Point
of Entry No.2 are less than 833,000 gallons per day; and
WHEREAS, the average day wastewater flows from the City of Melissa entering Point
of Entry No.3 are less than 1,610,000 gallons per day; and
WHEREAS, the City of Anna is interested in contracting with the City of Melissa to
utilize a portion of the City of Melissa's available wastewater flow capacity at Point of Entry
Nos. 2 and 3; and
WHEREAS, the City of Anna is planning to construct facilities necessary to transport its
wastewater flow in excess of the existing WWTP capacity to the City of Melissa for delivery to
Point of Entry Nos. 2 or 3; and
WHEREAS, the City of Melissa has requested that the District provide wastewater
collection and treatment service in amounts not to exceed amounts specified in the Contract at
Point of Entry Nos. 2 and 3 for the City of Melissa, including wastewater received from the City
of Anna by the City of Melissa; and
WHEREAS, on April 25, 1996, District adopted District Policy No. 22 entitled
"Customer City Policy -NTMWD Region?! Wastewater Treatment System and NTMWD Upper
East Fork Regional Interceptor System" to provide customer (non-member) wastewater
collection and treatment service; and,
WHEREAS, it is deemed necessary and advisable by the parties hereto that the existing
Contract be terminated and completely replaced with this contract so that the relationship
between the DistrIct and the City of Melissa with respect to wastewater service will be set forth
in this contract.
NOW, THEREFORE, the District and the City of Melissa mutually agree to the following
terms and conditions in accordance with District Policy No. 22:
I. PURPOSE
Subject to the terms and conditions of this contract, the District shall provide wastewater
collection and treatment service to allow the City ofMelissa to serve:
a) the geographic area called the Old Downtown Area at Point of Entry No.1;
. b) the Hunter's Ridge Development, Tremore Development, and areas within the
Throckmorton Creek and Trinity River drainage area in the City of Melissa, and
areas within the Throckmorton Creek drainage area in the City of Anna; at Point
of Entry No. 2; and
c) the Liberty Development, North Creek Development, Hunter's Creek
Development, Trails of Melissa, Harlan Property Developments, the MISD
property, the Milrany/Wright property, areas within the Stiff Creek drainage area
in the City of Melissa and the Clemons Creek drainage area in the City of
Melissa and City of Anna at Point of Entry No.3.
d) The City of Melissa is also authorized to contract with the City of Anna to allow
the City of Anna to transport a portion of its wastewater to the City of Melissa for
delivery to Point of Entry Nos. 2 or 3 as detailed herein and as shown in Exhibit
Page 2
A.
The City of Melissa shall have complete responsibility to construct a system meeting all state
and federal regulations and laws necessary to transport the wastewater from the City of Melissa
and the City of Anna to all Points of Delivery. The District shall then transport the wastewater
through the District's Upper East Fork Regional Interceptor System where the District shall be
responsible for treating the wastewater in accordance with state and federal regulations and law.
II. RESPONSIBILITIES
A. City of Melissa
1. To provide a set of plans and specifications prepared by a registered professional
engineer for the construction of (1) the Throckmorton Creek Parallel Interceptor, a
wastewater collection system necessary to transport flow from the Hunter's Ridge
Development, Tremore Developments, and the Throckmorton Creek Drainage Basin in
the City of Melissa and from the Throckmorton Creek Drainage Basin in the City of
Anna, including the required equipment necessary to meter flows from the City of
Melissa and the City of Anna, to Point of Entry No.2, and (2) the Clemons Creek
Sewer, a wastewater collection system necessary to transport, flow from the Liberty .
Development, North Creek Development and Harlan Property Developments in the
City of Melissa and from the Clemons Creek Drainage Basin in the City of Anna,
including the required equipment necessary to meter flows from the City of Melissa and
the City or Anna, to Point of Entry No.3. These plans have been previously submitted
to the District for approval prior to the start of any construction. The District shall
review and make comments within thirty (30) days of submittal of plans. Construction
of facilities for the meters and meter vaults must meet District standards and must have
the written approval of the District prior to construction.
2. All costs for the construction to serve the Hunter's Ridge Development, Tremore
Development, Liberty Development, North Creek Development, Harlan Property
Development, and the Throckmorton Creek Drainage Basin projected development in
Melissa and all developments in the City of Anna, including facilities necessary to
transport wastewater to Point of Entry Nos. 2 and 3 and all metering vault stations to
adequately meter the flow at each Point of Entry, meters and contracts for power, shall
be the responsibility of the respective City where the project is located. Ownership of
the meters at Point of Entry No.1, 2 and 3 measuring Melissa flow, or measuring
combined Melissa and Anna flow, shall be vested with District.
3. The City of Melissa shall ensure that the wastewater flows entering Point of Entry
Nos. 1, 2 or 3, including those flows from the City of Anna (regulated by Melissa
Anna agreement), do not exceed the limitations specified in Section III, Limitations.
4. Charges for service shall be calculated based on the greater of (1) an agreed minimum
annual flow of 18,000,000 gallons or (2) the total actual annual flow entering Point of
Entry Nos. 1,2 and 3 times the current unit cost per thousand gallons to member cities
plus 20%.
Page 3
5, Payments shall be made based on 1/12 of the Annual Budget or Adjusted Annual
. Budget as approved by the District's Board of Directors. The first monthly payment due
each fiscal year shall be twice the calculated monthly payment with no payment due
during the last month of the fiscal year except for costs caused by adjustment based on
actual flow or system expense. At the end of each fiscal year, any deficit shall be billed
to the City of Melissa and any credit shall be applied to the billing for the next fiscal
year.
6. Bills will be mailed to City of ¥elissa on the 1 st of the month and should be paid by the
due date of the 20th of the month. If the bill has not been paid by the 1 st of following
month, then it shall be considered delinquent and a 10% additional charge will be added
to the bill.
-7. Billings associated with Point of Entry Nos. 2 and 3 shall include wastewater flows
from the City of Melissa and the City of Anna. The City of Melissa shall be responsible
for all charges, including those associated with wastewater flows from the City of
Anna. The City of Melissa shall be responsible for all billing associated with the flow
from the City of Anna.
8. All operation and maintenance costs on the systems constructed by the City of Melissa
or the City of Anna to transport wastewater to Point of Entry Nos. 1, 2 and 3 shall be
the responsibility of the respective City. The District shall be responsible, after testing
and acceptance, for O&M costs on the City of Melissa meters only.
9. The City of Melissa shall be responsible for and shall ensure that the City of Anna is
responsible for all permits and certificates required by all state and federal regulations
and laws for facilities constructed to convey wastewater from the City of Melissa and
the City of Anna to Point of Entry Nos. 2 and 3.
10. The City of Melissa shall be authorized to enter into a contract with the City of Anna
authorizing the transport of wastewater flows from the City of Anna to Point of Entry
Nos. 2 or 3. Such contract shall be consistent with the terms and conditions contained
in this contract between the City of Melissa and the District and shall1:5e authorized by
District by execution of this agreement.
B. District
1. District shall bill the City of Melissa based on the current unit cost per thousand gallons
to the District's member cities plus 20%.
2. The wastewater meters required herein shall be maintained by the District in
accordance with the District's Standard Maintenance Policy for meters. The City of
Melissa shall have the right to request verification of the accuracy of the meters by
witnessing District calibrations. Should disagreement arise regarding the accuracy of
the meters, the City of Melissa shall have the right to have an outside meter company
evaluate the meters with District personnel once in any six (6) month period. Any meter
Page 4
adjustment shall not be for a time period greater than six (6) months.
3. The District shall operate its system in accordance with the North Texas Municipal
Water District Upper East Fork Wastewater Interceptor System contract dated the 26th
day of July 1984, and the North Texas Municipal Water District Trinity East Fork
Regional Wastewater System Contract dated the 1 st day of October 1975.
III. LIMITATIONS
A. The following limitations shall apply to the transportation of wastewater from the City of
Melissa and the City of Anna under. this contract:
1. The land area being served shall be as described in Section I. Purpose above.
2. The City of Melissa agrees that the wastewater discharged into the District's wastewater
system shall not exceed: .
(a) an average day flow of 100,000 gallons per day or a maximum day flow of
200,000 gallons per day at Point of Entry No.1 or
(b) an average day flow of 833,000 gallons per day or a maximum day flow of
2,082,500 gallons per day at Point of Entry No. 2 (this total shall include
flow from the City of Melissa and the City of Anna) or
(c) an average day flow of 1,610?000 gallons per day or a maximum day flow of
4,025,000 gallons per day at Point of Entry No.3 (this total shall include flow
from the City of Melissa and the City of Anna).
3. The wastewater discharged into the District's wastewater system shall never exceed the
following Normal Wastewater Concentrations:
(a) 275 milligrams per liter BOD (Biological Oxygen Demand);
(b) 300 milligrams per liter TSS (Total Suspended Solids);
(c) pH, not less than six (6) or greater than nine (9);
(d) 0.1 milligrams per liter Hydrogen Sulfide.
4. The member cities of the North Texas Municipal Water District Regional Wastewater
System shall have prior rights to the service of the system.
IV. OTHER
A. Title to all wastewater shall be in the City of Melissa until discharged at any Point of
Entry into the District's wastewater system, as such points are identified herein, at which
points title to such wastewater shall pass to the District. The District reserves the right
ofre-use of wastewater treated effluent to the extent authorized by the State of Texas.
B. The City of Melissa agrees to provide the District a copy of the City's Wastewater
Master Plan prior to any future request for wastewater collection and treatment service.
Page 5
C. It is specifically agreed and understood that upon execution of this contract, that this
contract will supersede all contracts, agreements, and arrangements between the parties
hereto with respect to wastewater collection and treatment service and that all such
previous contracts, agreements and arrangements, including the Contract, shall be void
and of no force or effect except for payments due thereunder.
D. It is acknowledged that both Melissa and the District anticipate reviewing the
provisions of this agreement at such time as additional wastewater average daily flow
volume can be provided to one or more of the specified points of delivery.
v. TERM
The effective date of this agreement shall be the date of the l~st signatory of the agreement
and shall be for a term of twenty (20) years from the effective date.
Tms CONTRACT APPROVED BY THE NORTH TEXAS MUNICIPAL, WATER
DISTRICT BOARD OF DIRECTORS at its Regular meeting on the day
of , 2009, with authorization for execution by the President and
Secretary of the Board of Directors.
NORTH TEXAS MUNICIPAL WATER DISTRICT
DON CATES, Secretary PATRICK NICKLEN, President
Tms CONTRACT REVIEWED AND APPROVEDJY THE CITY COUNCIL OF THE
CITY OF MELISSA in a Regular meeting on the..; 7 day of -:r~~ , 2009 with
authorization for the Mayor and City Secretary to execute the agreement 0 behalf of the City
of Melissa.
CITY OF MELISSA
Page 6
B
INTERLOCAL AGREEMENT BY AND BETWEEN
THE CITY OF MELISSA, TEXAS, AND THE CITY OF ANNAt TEXAS
(Clemmou's Creek Sewer Line)
THIS INTERLOCAL AGREEMENT (the "Agreement") is entered into by and between
the CITY OF MELISSA, TEXAS, a municipal corporation ("Melissa"). and the CITY OF
ANNA, TEXAS, a municipal corporation ("Anna").
WHEREAS, Melissa is in the process ofdesigning and constructing, or causing the
design and construction of, a sanitary sewer system for the elemmon's Creek Drainage Basin.
located in Melissa's and McKinney's extratetritorial jurisdictions ("ETr,; which may serve,
among others, the cities ofMelissa and Anna (the "Project'); and
WHEREAS, Melissa has investigated and determined that it would be advantageous and
beneficial to Melissa and its citizens to add capacity to the Project so as to allow Anna to utilize
the subject sewer facilities as described herein; and
, WHEREAS, Anna has investigated and d,etermmed that it would be advantageous and
beneficial to Anna and its citizens to reimburse Melissa, as described herein, for the additional
capacity requested:by Anna; and
WHEREAS, Melissa ,and Anna each have investigated and determined that it would be
advantageous and beneficial to Melissa and Anna and each of their respective citizens to
participate in the design and construction Qfthe Project as provided herein.
NOW, THEREFORE, in consideration of the covenants and conditions contained in this
Agreement. Melissa and Anna agree as follows:
1. Description ofPmject. The Project consists of the design and construction oia
sanitary sewer system for the Clemmon's Creek Drainage Basin, located in Melissa's and
McKinney's BTJ, which may serve, among others, Melissa and Anna. The Project is more
particularly described in Exhibit "Nt, attached hereto and incorporated herein for all purposes.
a. Melissa's Obligation. Upon completion of the construction of the Project.
Melissa agrees solely to provide Anna three million gallons/day Q.OO MGD), peak daily gravity
flow, through the sewer line made the subject oftbe Project (the "sewer line"). Melissa will
provide 3.00 MGD sewer capacity from the manhole located within or near the Throckmorton
Road, or as otherwise named, right-of..way in Melissa to the point ofentry at the North Texas
Mmricipal Water Distrid's ("'NTMWIY') Honey Creek sewer line (the "point of entry"), as more
particularly depicted in Exhibit ., An, unless otherwise required by NTMWD (as discussed
below). Notwithstanding Anna's obligations set forth herein, the obligations ofMelissa under
this Agreement are subject to and contingent upon Melissa reaching an acceptable, as solely
detennined by Melissa, agreement with the developer to oversize the sewer line for Anna's
participation.
INTERLOCAL AGREEMENT BETWEEN MELISSA AND k''NA (Oemmoats Creek Sewer Une) • Page 1
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h. Anna's Obligations. Anna shall, at its sole cost and expense:
(i) satisfy all requirements imposed, contractual or otherwise. for,
among other things, the ttansportation ofsewage beyond the limits
ofthis Project and treatment of sewage;
(ii) satisfy all pretreatment standards required by Melissa and
NTMWD. as they exist or may be amended;
(iii) satisfY all other NTMWD requirements, as they exist or may be
amended;
(iv) construct and maintain a metering station, at a location to be
approved by Melissa and NTMWD, in accordance NTMWD~s
requirements, as they exist or may be amended;
(v) construct the necessary improvements to connect to the sewer line;
and
(vi) limit, at all times, the peak flow to 3.00 MGD. unless otherwise
agreed to in writing by Melissa.
2. Design and Construction of Projcct. Melissa has entered into a Facilities
Agreement with a developer (the "developer') Wherein the developer will design and construct,
among other things, the Project. The estimated design and construction costs of.the Project are "
Three Million; One Hundred Thousand and NO/loo Dollars ($3,100.000.00) (the c~tiinated ' '
Design and Construction Costs',. The phrase "design and construction costs" as used herein
shall mean the actual construction costs plus twenty percent (20%) ofthe actual construction
costs, which includes, but is not limited to, design costs, engineering costs, surveying costs,
geotechnical materials testing and inspection fees associated with the Project. The phrase "cost
overruns" as used herein shalt mean costs, which may be incurred by Melissa in the design and
construction of the Project and which are over and above the Estimated Design and Construction
Costs.
3. Anna's Reimbursement ofa Portion ofthe Estimated Design and Construction
Costs. Anna agrees to reimburse Melissa thirty-four percent (34%) ofllie Estimated Design and
Construction Costs, or an estimated One Million Sixty-Two Thousand and Noll 00 Dollars
($1,062,000.00). and cost overruns. ifany. Within two (2) weeks ofits City Council's approval
ofthe Agreement, Anna will tender to Melissa Fifty Thousand and No/loo Dollars ($50.000.00),
but no later than March 3, 2004. representing a portion ofAnna's agreed upon contribution to the
Estimated Design and Construction Costs ("~Anna's Initial Contnoution"). The balance of
Arma's contribution to the Estimated Design and Construction Costs shall be paid to Melissa on
or before May 18. 2004 ("Anna's Remaining Contribution;'). Should Melissa incur any cost
overruns associated with its design and construction of the Project. Melissa will provide Anna
written notice of the same, and Anna shall reimburse Melissa thirty-four percent (34%) of the
cost overruns within thirty (30) days ofreceiving notice from Melissa. Melissa and Anna agree
that Anna's financial contribution to the design and construct!on of the Project, or thirty-four
percent (34%) of the design and construction costs of the Project, will be based on the actual
design and construction costs incurred by Melissa in designing and constructing the Project.
INTERLOCAL AGREEMENT BETWEEN MELISSA AND ANNA «lemmon's C",ek Sewer Une) -Page 2
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Upon request from Anna and within a reasonable time thereaftert Melissa will
provide Anna with copies of any and all documents regarding the construction costs of the
Project.
4. Deposit of Anna's Initial and Remaining Contribution. Melissa win deposit
Anna's Initial and Remaining Contribution in an interest bearing account, which amount shall be
held by Melissa and used exclusively for payment of the Estimated Design and Construction
Costs and cost overruns1 if any; provided, however, Melissa and Anna agree that any and all
interest earned from the interest bearing account containing the funds deposited by Anna in
accordance with this paragraph will be applied to the Estimated Design and Construction Costs
and cost overruns~ if any, with the remainder of Anna's Initial and Remaining Contribution, if
any remaining after the actual design and construction costs are paid as required herein, being
. returned to Anna.
5, Anna's AdQ,itional Financial Obligations. Anna shall further be required to
reimburse Melissa any and all costs and expenses resulting, directly or indirectly, from Melissa
entering into this Agreementt including but not limited to:
a. costs and expenses incurred by Melissa as a result of delaying the
provision afwater and sewer service to the Liberty Planned Developed located in Melissa as" set
forth in the Facilities Agreement entered into between Melissa and Hillwood Enterprises," L.P.
dated June 16, 2003, which is incorporated by reference as if fully set forth herein; provided,
however. Anna's liability with regard to this subparagraph 5(a) shall not exceed Fifty Thousand
and NoIlOO Dollars ($50,000.00); and
b. any finance charges. including but not limited to, interest and penalties,
Melissa is required to pay the developer to finance the Project.
6. Other Improvements. If, at any time, NTMWD requires an alternative andlor
additional improvements, including but not limited to, an alternative point ofentry to the
NTMWD system, Anna agrees to share in the design and construction costs (hereinafter defined)
of any and all improvements required to meet NfMWD's requirements ("other improvements'').
Anna's cost participation in oth.er improvements will be determined based on Anna's percentage
capacity in the other improvements and wit1 be agreed upon in writing at a later date, but prior to
incurring any costs or expenses associated with other improvements.
7, Maintenance.
a. Sewer Line. Melissa shall be responsible for the maintenance ofthe sewer
line. Anna agrees to pay Melissa ten cents per thousand gallons ($.10/1000 gallons) of sewage
transported through the sewer line, as detennined by NTWMD (the ~'maintenance fee"). Anna
shall pay the maintenance fee to Melissa simultaneously with Anna's payments to NTMWD and
shall include. a copy of NfMWD's documentation, evidencing Anna's sewer use, with said
payment to Melissa.
INTERLOCAL AGREEMENT BETWEEN MEUSSA AND Ao"lNA (Clemmou's Creek Sewer Line) -Page J
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b. Other Improvements.. Maintenance obligations of Anna and Melissa for
any and all other improvements, excluding the sewer line addressed in 17(a) above, will be
agreed upon in writing at a later date, but prior to incurring any costs or expenses associated with
other improvement.'l.
8. Ownership ofEasem~tslIl1lprovements. Any and all easements obtained and
improvements constructed pursuant to this Agreement shall. at all times, remain the sole property
ofMelissa. Anna shall not, at any time, have andlor claim any ownership interest in the
eas.ements obtained andlor improvements constructed. as a result ofthe Project
9. Damages/Remedies.
a. Failure ofProiect. If. for any reason, other than default by Anna. the
Project is not pursued to completion, Anna agrees that its sole remedy, and Melissa's sole
liability to Anna, is the return of any monies paid by Anna to Melissa pursuant to this
AgreementJ less any and all reasonable Costs and expenses incurred by Melissa to the date it is
determined, solelyby Melissa, that the Project cannot and/or will not be pursued to completion.
rfthe Project is not pursued to completion, as solely determined by Melissa and as a result of
Atma~s·defaaltofthis Agreement.·Melissashall have any and all rights and remediesavailable·to··
it~ at law ot'in eqoity.
b. Any Other Breach. Except as provided in 19(a) above, the parties shall
have any and aU rights and remedies available to it; at law or in equity, in the event ofa breach
provided 0) the non-breaching party is not in default at the time ofthe breach; and (n) such
breach continues for a period ofthirty (30) days after the non-breaching party delivers written
notice thereof to the other party.
10. Miscellaneous.
a. Notice. Any notice required to be sent under this Agreement must be in
writing and may be served by depositing same in the United States Mail. addressed to the party
to be notified. postage pre-paid and registered or certified with return receipt requested, or by
delivering the same in person to sucb party via a hand-delivery service, Federal Express or any
courier service that provides a return receipt showing the date of actual delivery of same to the
addressee thereof Notice given in accordance herewith shall be effective upon receipt at the
address of the addressee. For purposes of notice, the addresses of the parties shall be as follows:
If to Melissa, to:
City Administrator
City of Melissa
901 SH 121
Melissa, Texas 75454
INTEBLOCAL AGREEMElI<'T BETWEEN MELISSA A."'D ANNA (OetnmOll's Creek Sewer Unto) -Page 4
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Ifto Anna, to:
City Administrator
City of Anna
101 N. Powell Parkway
Anna, Texas 75409
b. Assigtl,llerit. This Agreement is not assignable.
c. Entire Agreement. This Agreement contains the entire agreement of the
parties with respect to the matters contained herein and may not be modified or tenninated
except upon the provisions hereof Of by the mutual ,,,ritten agreement ofthe parties hereto.
d. Venue. This Agreement shall be construed in accordance with the laws of
the State ofTexas and shall be perfonnable in Collin County. Texas.
e. Consideration. TIus AgTeement is executed by the parties hereto without
coercion or duress and for substantial consideration~ the sufficiency of which is forever
confessed.··
f. Countet:paris. This Agreement may be executed in a number ofidentical
counterparts, each of which shall be deemed an original for all purposes.
g. Authority to Execute. The individuals executing this Agreement on behalf
of the respective parties below represent to each other and to others that all appropriate and
necessary action has been taken to authorize the individual who is executing this Agreement to
do so for and on behalf ofthe party for which his or her signature appears. that there are no other
parties or entities required to execute this Agreement in order for the same to be an authorized
and binding agreement on the party for whom the individual is signing this Agreement and that
each individual a.ffi:xing his or her signature hereto is authorized to do so~ and such authorization
is valid and effective on the date hereof.
h. SavingS/Severability. In case anyone or more ofthe provisions contained
in this Agreement shall for any reason be held to be invalid. illegal or unenforceable in any
respectt such invalidity, illegality or unenforceability shall not affect any other provision thereof,
and this Agreement shall be construed as if such invalid. illegal or unenforceable provision had
never been contained herein.
i. Representatio:gs. Each signatory represents this Agreement has been read
by the party for which this Agreement is executed and that such party has had an opportunity to
confer with its counsel
INTERLOCAL AC'..REEMENT BETWEEN MELISSA. AND Ai"<NA (Ocmmon's Creek: Sewer Une) ~ Page 5
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j. Miscellaneous Drafting Provisions. This Agreement shall be deemed
drafted equally by all parties hereto. The language ofall parts of this Agreement shall be
construed as a whole according to its fair meaning, and any presumption or principle that the
language herein is to be construed against any party shall not apply. Headings in this Agreement
are for the convenience ofthe parties and are not intended to be used in construing this
document.
k. Sovereign Immunity. The parties agree that Melissa and Anna have not
waived their respective sovereign immunity by entering into and perfonning their respective
obligations under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement and caused this
Agreement to be effective on the latest date as reflected by the signatures below.
CITY OF MELISSA, TEXAS
STATE OF TEXAS '"
'"
COUNTY OF COLLIN '"
BEFORE ME, the undersigned authority, on this day personally appeared
'"'b.Qi~ E.~,..,......~ •known to me to be one ofthe persons whose names are
subscnbed to the foregoing instrument; he/she acknowledged to me helshe is the duly authorized
representative for the City of Melissa, Texas, and helshe executed said instrument fox: the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this I~ day of
V"\I\Q,.h. (L.y.", 2004.
CITY OF ANNA, TEXAS
B~~~ Date: 7-r.?y
INTERLOCAL AGREEMENT BETWEEN ~1)ANNA (Oemmoo's Creek Sewer Line) -Page 6
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Name:.,j.cti:;:vN'"~ (.,. /':!ZKd",-,?
Title: .I""1A-..?P?l
STATE OF TEXAS *
*
COUNTY OF COLLIN >It
BEFORE ME, the undersigned authority. on this day personally appeared.
[<'IiPlJl.TtI ~. fi.L.J!HIrl. , known to me to be one ofthe persons whose names are
subscribed to the foregoing instrument; helshe acknowledged to me helshe is the duly authorized
representative for the City ofAnna, Texas, and he/she executed said instrument for the purposes
and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this J d day of
_/"1:/HJ,..,c.H 2004.
1J~22 tL-."r:
Notary Public in and for the
State of Texas
My Commission Expires:
JNTERLOCAL AGREEMENT BETWEEN MELISSA AND ANNA (Oemmoa'$ Creek ~er Line). Page 7
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Creek _line}v2CLBAN2.do;:
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=mJ~~~~~ ,.~~~__________________________~~~r-______________________n.____
INTERLOCAL AGREEMENT BY AND BETWEEN
THE CITY OF MELISSA, TEXAS AND THE CITY OF ANNA. TEXAS
(Throckmorton Creek and Trinity River Sewer Lines)
. .
THIS INTERLOCAL AGREEMENT (the "Agreement', is entered into by and between the
CITY OF MELISSA,"TEXAS, a municipal corporation (<<Melissa"), and the CITY OF ANNA,
TEXAS, a municipal corporation ("Anna").
WHEREAS~Melissa is in the process ofdesigning and constructing. or causing the design and
construction of, a sanitary sewer system for the Throckmorton Creek and Trinity River Sewer
drainage basins, located in Anna, MeIiss~ and Melissa's and McKinney's extraterritorial
jurisdictions ("ETr); which may serve, among others, the cities ofMelissa and Anna (the
"Project"); and
WHEREAS. Melissa has investigated and determined that it would be advantageous and
beneficial to Melissa and its citizens to add capacity to the Project so as to allow Anna to utili?:e
the subject sewer facilities as described herein; and
WHEREAS, Anna has investigated and detennined that it would be advantageous and beneficial
to Anna. and its citizens to reim.burse Melissa. as described herein, forilie additional capacity
requested by Anna; and .
WHEREAS. Melissa and Anna each have investigated and determined that it would be
advantageous and beneficial to Melissa and .Anna and each oftheir respective citizens to
participate in the design' and construction ofthe Project as provided herein.
NOW, TIlEREFORE. in consideration of the covenants and conditions contained in this
Agreement, Melissa and Anna agree as follows:
1. Description of Project. The Project consists ofthe design and construction ofa
sanitary sewer system for the Throckmorton Creek and Trinity River drainage basins,'located in
Ann~Melissa, and McKinney·s ETI, which may serve, among others, Melissa and Anna. The
Project is more particularly depicted in Exhibit"A ". attached hereto and incorporated herein for
all purposes.
a. Melissa~1 Obligation. Upon completion of the constroction of the Project, and on
every subsequent daYt Melissa agrees solely to provide Anna.:
(i) five million six hundred thousand gallons/day (5.60 MGDlt peak daily
gravity tlowJ through that portion ofthe sewer line maa~the subject of
the Project and located from a point, to be detennined by the;: City of
Melissa subject to approval by the City of Ann~such approval to be Dot
unreasonably withheld, near-the confluence ofThrockmorton Creek and
the East Fork Trinity River to the City ofAnna's sanitary sewer lift
station located near the point where CR366lFoster Crossing Road crosses
Page J on
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, ,
'.
Throckmorton Creek.' as more particularly depicted on Exhibit «L\",
attached hereto (the "Throckmorton Creek Sewer Trunk Line~J; and
(ii) nine,million six hundredthous:md gallons/day ~.,60,MG~ pe~daily
gravIty flow, through that portion oftb.e sewer me made e subject of
the Project and located from a point, to be determined by the City of
Melissa subject to approval by the City of Anna, such approval to be not
unreasonably withheJd, near-the confluence of1brockmorton Creek and
the East Fork Trinity River to the point of entry at the North Texas
Municipal Water District's ("NJMWD") Honey Creek sewer line (the
"point ofent.ry", as mo~particularly depicted on Exhibit "A", attached
hereto, (the ''Trinity River Sewer Trunk Line"). Melissa will provide the
9,60 MOD peak daily gravity flow sewer capacity referred to in this
paragraph unless otherwise required by NTMWD (as discussed in ,1 (b)
below}.
h. Anna's Obligations. Anna shall, at its sole cost and expense:
(i) satisfy all requirements imposed, contractual or otherwise,. for, among
other tbings.,.the .transportation of sewage beyond the limits of this Project
and treatment ofsewage;
(ll) , satisfy all pretreatment standards required by NTMWD, as they exist or
may be amended;
(iii) satisfy all other NTMWD requirements, as they exist or may be amended;
(iv) construct the necessary improvements to connect to the sewer line; and
(v) limit, at all times, the peak flow to 5.60 MOD for the Throckmorton
Creek Sewer Trunk Line and 9.60 MOO for the Trinity River Sewer
Trunk Line. unless otherwise agreed to in writing by Melissa.
2. Design and Construction ofPrQ;ect The estimated design and construction costs
of1he Project are Seven Million Five Hundred Thousand and Noll 00 Dollars ($7.500,000.00)
(the "Estimated Design and Construction Costs''). The phrase "design and construction costs" as
used herein shall mean the actual construction costs plus-design costs, engineering costs,
surveying costs, geotechnical materials testing and inspection fees and other costs associated
with the Project. The phrase "design and construction cost Qverruns'~ as used herein shall mean
costs which may be incurred by Melissa in the design and construction of the Project and which
are over and above the Estimated Design and Construction Costs.
3. Easement A£guisitions. The estimated easement acquisition costs of the Project
are Two Hundred Thirty-Five Thousand and NotlOO Dollars ($285,000.00) (the "Estimated
Easement Acquisition Costs:). The phrase "MSement muismon cos§" as used herein shall
mean the actual easement acquisition costs,. which includes, but is not limited to, costs and
Page 2 of8
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expenses associated with acquiring~ by purchase or condemnation, all easements required to
construct the Project including. but not limited to, title work, appraisals, expert fees, attorneys·
fees and expenses, engineering fees and expenses, surveying fees and expenses, consultant's and
agent's fees and expenses used for acquisition ofthe easements described herein, court costs,
commissioner's fees and costs of appeal, ifany, associated with the Project. Anna and Melissa
agree and acknowledge that; among others, engineering, surveying and legal fees and expenSes
associated with the easement acquisition costs are separate and distinct from the-engineering,
surveying and legal fees and other expenses directly associated with the design and construction
costs of the Project The phrase "easement acquisition cost ovemmst
' as used herein shall mean
costs which may be incurred by Melissa in acquiring the easements for the construction ofthe
Project aDd which are over and above the &'1imated Easement Acquisition Costs.
4. Anna"s Reimbursement of a Pornon ofthe Estimated Design and Co.nstm£tioD
Costs and Easement Acquisition Costs. Anna agrees to reimburse Melissa as follows:
a. Estimated Design and Construction Costs and Easement Acquisition Cost
for the portion ofthe Project north ofMelissa Road (Hphase II" oftbe
Project) are Three Million. Four Hundred Thousand Dollars
($3,400~OOO). Anna agrees to reimburse Melissa Fifty Seven and Four
. Tenths 'percent.(57.4%) ofthe Design and Construction Costs and
Easement ACquisition Costs fot Phase n of the Project, or an estimated
One Million Nine Hundred Fifty Thousand Dollars ($1,950,000), and
Fifty Seven and Four-Tenths percent (57.4%) of design and construction
cost overruns. 'if any, plus easement acquisition cost overruns; ifany, for
Phase II ofthe Project; and
b. Estimated Design and Construction Costs and Easement Acquisition Cost
for the portion ofthe Project south of Melissa Road ("Phase lIP' ofthe
Project) are Four Million. One Hundred Thousand Dollars ($4,100,000).
Anna agrees to reimburse Melissa Forty and Eight-Tenths percent
(40.8%) ofthe Design and Construction Costs and Easement Acquisition
Costs ofPhase III ofthe Project plus Anna~s pro-rata share ofMelissa's
existing Trinity River sanitary sewer line south ofMelissa Road ("Phase
r' ofthe Project) of Seven Hundred thirty-One Thousand Dollars
($731 ~OOO). Therefore, Anna agrees to reimburse an estimated Two
Million Four Hundred Thousand Dollars ($2.400,000). and Forty and
Eight.Tenths percent (40.8%) ofdesign and construction cost overruns, if
any; plus easement acquisition cost overruns, ifany for Phases I and ill
ofthe Project. It is understood that Phase I oftbe Project bas been
completed and Anna has no responsibility for Phase I costs, excepting the
'$73 I .000 previously referenced.
c. Anna's contribution to the Estimated Design and Construction Costs and
Estimated Easement Acquisition Costs for Phase n ofthe Project (Annats
Phase II Project Participation Funds) of the Project shall be paid to
Melissa, or evidence that Anna has secured funding for Anna's
PagelofS
----
contribution shall be in place, on or before June 30, 2006. Payments by
Anna to Melissa shall be made within ten (10) days after receipt by Anna·
of invoices ~or project-related expenses.
d. Anna's contribution to the Estimated Design and Constru~ion Costs and
Estimated Easement Acquisition Costs for Phase m ofthe Project
(Anna's Phase ill Project Participation Funds) shall be paid to Melissa, or
evidence that Anna has secured funding for Anna's contribution shalt be
in place; the later of:
(i) on or before September 30. 2007, or;
(ii) within 10 days after daily sewage flow in Phase I ofthe Project hits
800,000 gallons per day (0.8 MOD) or when peak hourly flow hits
2;000,000 gallons per day (2.0 MOD). as solely determined by Melissa;
or
(iii) at any date thereafter as mutually agreed in -writing by both Anna and
Melissa.
. (iv) Payments by Anna to Melissa shall be made within ten (10) days after
receipt by Anna of invoices for expenses related to Phase m ofthe
Project.
f)
Should Melissa incur any design and construction cost overruns andlor
easement acquisition cost overruns associated with its design and
construction ofthe Project andlor the acquisition of the easements for the
construction of the Project, Melissa will provide Anna written notice of
the same, and Anna shall reimburse Melissa fifty-seven and four-tenths
percent (57.4%) ofthe design and construction cost overruns and/or
easement acquisition cost overruns for Phase II of the Project and forty
and eight-tenths percent (40.8%) ofthe design and construction cost
overruns andlor easement acquisition cost overruns for Phase mofthe
Project within thirty (30) days of receiving notice from Melissa. Melissa
and Anna that Anna's financial contribution to the desi
construction of the Project an the ,acquisition ofthe easements for
construction 0 ec WI •
eonstruction costs and easement uisition co
. y Melissa in designing and constructing the Project.
Upon request from Anna and within a reasonabJe time thereafter, Melissa
will provide Anna with copies of any and all documents regarding the
design and construction costs and/or easement acquisition costs ofthe
Project.
Page 4 of8
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5,. Other Improvement§. If, at any time, NTMWD requires alternative andlor
additional improvements .. including but not limited to. an alternative point ofentry to the
NlMWD system, Anna agrees to share in the design and construction costs and easement
acquisition costs ofany and all improvements required to meet NTMWD's requirements e'other
improvements·~). Anna's cost participation in tbe other improvements required by NTMWD Will,
be determined based on Anna~s percentage capacity in the other improvements and will be
agreed upon in writing at a later date, but prior to incurring any costs or expenses associated with
the other improvements.
6. Maintenance.
a. Sewer Lines. Melissa shall be responsible for the maintenance ofthe
Throckmort<?n Creek and Trinity River Sewer Trunk Lines (collectively the "Sewer Lines'J.
Anna agrees to pay Melissa the greater of:
(i) ten cents per thousand gallons ($.10/1 000 gallons) ofsewage transported
through the Sewer Lines~ as detennined by NTWMD; or
(ii) five percent (5%) ofAnna's total sewer costs of sewage transported
through the Sewer Lines, including but not limited to, collection,
transmission and treatment costs, as prescribed by NfMWD and as
amended from time-to-time (16 (a)(O and (ii) are collectively referred to
herein as the "maintenance fee.,.
Anna shall pay the maintenance fee to Melissa simultaneously with Anna's payments to
NTMWD and shall include a copy ofNTMWD's documentation, evidencing Anna's sewer use,
with said payment to Melissa.
b. Other Improvements_ Maintenance obligations ofAnna and Melissa for
any and all other improvements, excluding the Sewer Lines addressed in "6(a) above. will be
agreed upon in writing at a later date, but prior to incurring any costs or expenses associated with
other improvements.
7. Own.ership of EaSementsIImprovements.
a. EasementslImpmvements in .AJma's City Limits or ETl: Any and all
easements obtained and improvements constructed pursuant to this Agreement within
Anna's City Limits and/or ETJ shall, at all times, remain the sole property of Anna.
Melissa shall not at any time have and/or cl~any ownership interest in the easements
O~~d and/or improvements constructed within Anna~s City Limits or ETJ.
~~. Other EasementsIImprovements: Except for Easementsllmprovements
described in (a)~ any and all easements obtained and improvements constructed pursuant to this
Agreement all all times, remain the sole property of Melissa. Anna shall not, at any time,
have and/or c • any ownership interest in the easements obtained and/or improvements
constructed as a result ofthe Project
PageS of8
8. DamageslRemedies •
. a; Failure of Project. I( for any reason, other than default by Anna, the
Project is not pursued to completion, Anna agrees that its sole remedy, and Melissa~s sole
liability to Anna, is the return of any momes paid by Anna to Melissa pursuant to this
Agreement, less any and all reasonable costs and expenses incurred by Melissa to the date it is
determined, solely by Melissa, that the Project cannot and/or will not be pursued to completion.
If the Project is not pursued to completion, as solely determined by Melissa and as a result of
Anna's default of this Agreement. Melissa shall have any and all rights and remedies available to
it, at law or in equity.
b. Any Other Btt:Acb. Except as provided in '8(a) above. the parties shall
have any and all rights and remedies available to it, at law or in equity, in the event ofa breach
provided (i) the non-breaching party is not in default at the time ofthe breach; and (u) such
breach continues for a period ofthirty (30) days after the non-breaching party delivers written
notice thereof to the other party.
9. Miscellaneous.
a: Notice .. 'Any 'notice required to be Sent under this Agreement must be in
writing and may be served by depositing same in the United States Mail, addressed to the party
to be notified, postage pre-paid and registered or certified with return receipt requested, or by
delivering the same in person to such party via a hand-delivery service~ Federal Express or any
courier service that provides a return receipt showing the date of actual delivery ofsame to the
addressee thereof. Notice given in accordance herewith shall be effective upon receipt at the
address of the addressee. For purposes ofnotice, the addresses of the parties shall be as follows:
If to Melissa, to:
City Administrator
City of Melissa
901 S.H. 121
Melissa, Texas 75454
Ifto~to:
City Manager
City of Anna
101 N. Powell Parkway
Anna, Texas 75409
b. Assignment This Agreement is not assignable.
c. Entire Agreement. This Agreement contains the entire agreement ofthe
parties with respect to the matters contained herein and may not be modified or terminated
except upon the provisions hereof or by the mutual written agreement ofthe parties hereto.
Page60fS
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d. Venue. This Agreement shall be construed in accordance with the laws of
the State of Texas and shall be perfonnable in Collin County, Texas.
e. . Consideration. This Agreement is executed by the parties hereto without
coercion or duress and for substantial consideration, the sufficiency ofwhich is forever
confessed.
f. Counterparts. This Agreement may be executed in a number of identical
counterparts. each ofwhich shall be deemed an original for all purposes.
g. Authority to Execute. The individuals executing this Agreement on behalf
ofthe respective parties below represent to each other and to others that all appropriate and
necessary action has been taken to authorize the individual who is executing this Agreement to
do so for and on behalf ofthe party for which his or her signature appears, that there are no other
parties or entities required to execute this Agreement in order for the same to be an authorized
and binding agreement on the party for whom the individual is signing this Agreement and that
each individual affixing his or her signature hereto is authori7...ed to do so, and such authorization
is valid and effective on the date hereof.
h. Savings/Severability.. In case any one or more ofthe provisions contained
in this Agreement shall fot·arty reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforc~bility shall not affect any other provision thereot:
and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
i. Representations. Each signatory represents this Agreement has been read
by the party for which this Agreement is executed and that such party bas had an opportunity to
confer with its counsel.
j. Miscellaneous 12rafting Provisions. This Agreement shall be deemed
drafted equally by all parties hereto. The language of all parts ofthls Agreement shall be
construed as a whole according to its :fair meaning, and any presumption or principle that the
language herein is to be construed against any party shall not apply. Headings in this Agreement
are for the convenience ofthe parties and are not intended to be used in construing this
document.
k. Sovereign Immunity. The parties agree that Melissa and Anna have not
waived their respective sovereign immunity by entering into and performing their respective
obligations under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement and caused this
Agreement to be effective on the latest date as reflected by the signatures below.
<
Page 7 of8
--. ----_._-i
. CITY OF MELISSA, 1EXAS
By; ~D~-~/ht" ..... Dougtas~njstraior ~
STATE OF' TEXAS •
COUNTY OF COLLIN ...
BEFORE ME. 1he undersigned authority. on this day personally appeared DOUGLAS
BOX, known to me to be one ofthe persons whose names are subscribed to the foregoing
instrument; he acknowledged. to me he/she is the duly authorized representative for the City of
Melis~Texas, and he executed said instt"u;ment for the purposes and consideration therein
expressed.
GIVEN UNDER MYHAND AND SEAL OF OFFICE this ~day of
'-V"n ... ! 2006.
\
y
Notary Public in and fur the State ofTexas
My Commission Expires:"
STATE OF TEXAS .•
COUNTY OF COLLIN ...
d BEFORE ME the undersigned authority. on this day personally appeared
JCtd rt"t, Pe fh. ftJ
't known to me to be one of1he persons whose names are
subscribed to the foregoing instrument; he/she acknowledged to me he/she is the duly authorized
representative for the City ofAnna. Texas, and he/she executed said instrument for the purposes
and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this nl'.!.rJayof
1rJ&y ·2006.
Page80fS
SLATER CREEK SVANNA WWTP
CLEMONS CREEK TO NTNlWD
THROCKMORTON CREEK TO NTMWD
SERVICE AREA MAP· B 1
f
Chambersville
Copyright" <C-2000 DeLorIDe~ TopuTouls Advanced Print-Kit TE. Seale: 1. : 75",000 Zoom. Level: 10-7 D,a'tum.: WGS84 111>1