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HomeMy WebLinkAboutRes 2013-02-02 Contract with North Texas Municipal Water District for Regional Wastewater Cust ServCITY OF ANNA, TEXAS RESOLUTION NO. 2013-02-02 A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A REGIONAL WASTEWATER CUSTOMER SERVICE CONTRACT WITH THE NORTH TEXAS MUNICIPAL WATER DISTRICT FOR CUSTOMER SERVICE WITH THE CITY OF ANNA. WHEREAS, the North Texas Municipal Water District (the "District") owns and operates a Regional Wastewater Treatment System and an Upper East Fork Regional Interceptor System (collectively, the "District's System") that can provide customer (non-member) wastewater collection and treatment service in accordance with the two systems' regional contracts and District Policy No. 22; and WHEREAS, the District and the City of Melissa entered into a "Regional Wastewater Customer Service Contract" effective February 26, 2009 (the "2009 Contract"), in which the District agreed to operate and maintain a wastewater collection and treatment system to provide wastewater service to the City of Melissa; and WHEREAS, the 2009 Contract also authorized the City of Melissa to contract with the City of Anna, Texas (the "City") so that the District could provide wastewater service indirectly to the City; and WHEREAS, the City now desires to become a direct customer of the District and to enter into a separate contract with the District; and WHEREAS, the City owns and operates its own wastewater treatment plant, the Slayter Creek Wastewater Treatment Plant (the "City WWTP"); and WHEREAS, the City WWTP has insufficient capacity to treat all wastewater flows within the City wastewater service area, and has requested that the District provide wastewater collection and treatment service to all properties in the City's wastewater service; and WHEREAS, the City and the District have negotiated a Regional Wastewater Customer Service Contract (the "Contract") to provide wastewater collection and treatment service to all properties in the City's wastewater service; and WHEREAS, the City Council of the City of Anna, Texas (the "City Council") finds that approval of the Contract is in the best interests of the citizens of Anna; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT: RES. 2013-02-02 NTMWD Regional WW Customer Service Contract PAGE 1 OF 2 02-12-13 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 Contract The City Council hereby approves the Regional Wastewater Customer Service Contract with the North Texas Municipal Water District for Customer Service with the City of Anna, attached hereto as Exhibit 1, and authorizes, ratifies and approves the City Manager's execution of same. The City Manager is hereby authorized to execute all documents and to take all other actions necessary to finalize, act under, and enforce the Contract. PASSED AND APPROVED by the City Council of the City of Anna, Texas on this 12th day of February, 2013. APPROVED: % -- ATTEST: Alia Mike Crist, Mayor Nath Wilkison, City Secretary RES. 2013-02-02 NTMWD Regional WW Customer Service Contract PAGE 2 OF 2 02-12-13 NORTH TEXAS MUNICIPAL WATER DISTRICT This North Texas Municipal Water District Regional Wastewater Customer Service Contract (the "Contract") by and between North Texas Municipal Water District ("the District") and the City of Anna (the "Customer") (individually, each a "Party," collectively, the "Parties") is effective the day of , 2013 (the "Effective Date"). RECITALS WHEREAS, the District owns and operates a Regional Wastewater Treatment System and an Upper East Fork Regional Interceptor System (collectively, the "District's System") that can provide customer (non-member) wastewater collection and treatment service in accordance with the two systems' regional contracts and District Policy No. 22; and WHEREAS, the District and the City of Melissa entered into a "Regional Wastewater Customer Service Contract" effective February 26, 2009 (the "2009 Contract"), in which the District agreed to operate and maintain a wastewater collection and treatment system to provide wastewater service to the City of Melissa; and WHEREAS, the 2009 Contract also authorized the City of Melissa to contract with the Customer so that the District could provide wastewater service indirectly to the Customer; and WHEREAS, the Customer now desires to become a direct customer of the District and to enter into a separate contract with the District; and WHEREAS, the Customer owns and operates its own wastewater treatment plant, the Slayter Creels Wastewater Treatment Plant (the "Customer WWTP"); and WHEREAS, the Customer WWTP has insufficient capacity to treat all wastewater flows within the Customer's service area, that being the City of Anna's current city limits and extraterritorial jurisdiction as of the Effective date, as more particularly described on Exhibit A attached hereto (the "Customer Service Area"); and WHEREAS, the Customer has requested that the District provide wastewater collection and treatment service to all properties in the Customer Service Area, that being the City of Anna's current city limits and extraterritorial jurisdiction as of the Effective date, as more particularly described on Exhibit A attached hereto (the "Customer Service Area"); and WHEREAS, District agrees to provide wastewater service benefiting the Customer Service Area at (i) a point of entry generally located east of the Dart Rail Line near Clemons Creek, and (ii) a point of entry generally located between State Hwy. 75 and State Hwy. 5, (collectively, the "Points of Entry"); and, WHEREAS, The Customer agrees to provide wastewater meter facilities to meter flows 1 2269824.4 from the Customer Service Area at (i) a point generally located along Throckmorton Creek at the City's southern ETJ (Anna Meter No. 1), and (ii) a point generally located along Clemons Creek at the City's southern ETJ (Anna Meter No. 2), (collectively, the "Anna Meter sites"); and, WHEREAS, the Customer supports the regional provision of wholesale wastewater service and was a participant in the Greater Texoma Utility Authority -Regional Wastewater Facility Concept Planning for the Upper East Fork Basin Study with the District, dated September 2010; and, WHEREAS, the Customer shall maintain all facilities that the Customer has constructed or will construct for the purpose of transferring wastewater from the Customer Service Area to the Points of Entry. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of such is hereby acknowledged, District and Customer mutually agree to the following terms and conditions in accordance with District Policy No. 22: I. PURPOSE District shall provide wastewater collection and treatment service ("Service") from the Points of Entry for wastewater generated from the Customer Service Area, Customer shall construct—to the extent not already constructed—and shall maintain, at Customer's sole cost, a system meeting all applicable state and federal regulations and laws (collectively, "Law") necessary to transport and discharge Customer's wastewater into the District's System at the Points of Entry. District shall then transport the wastewater through District's System where District shall be responsible for treating the wastewater. H. TERM This Contract shall commence on the Effective Date and terminate upon the expiration of twenty (20) years thereafter (the "Term"). III. OBLIGATIONS AND RIGHTS OF PARTIES A. Customer shall: 1. Prior to commencement of any construction of wastewater collection system facilities within the Customer Service Area that connect directly to the District's System at the Points of Entry (collectively, the "Facilities") provide to District, for District's approval, a complete set of plans and specifications (the "Plans") prepared by a registered professional engineer licensed in the State of Texas for the construction of said wastewater collection system facilities for the Customer Service Area to the Points of Entry. District shall review the Plans and shall submit to Customer in writing any changes required by District within 2 2269824.4 thirty (30) days of receipt of such Plans. Customer shall then resubmit revised Plans for similar review by District as necessary. Customer must obtain prior written approval of District for final Plans for the Facilities prior to commencement of construction. Customer is also responsible for securing all local, state and federal regulatory approvals necessary to authorize construction of the Facilities. 2. The Customer shall pay all construction costs of the Facilities and shall maintain the Facilities at its own cost. It shall be the sole responsibility of Customer to provide any required power to the Facilities, including contracting for such power. To the extent permitted by law, Customer hereby transfers to the District all of its ownership interest in Anna Meter No. 1 and, when construction is determined necessary by the Customer, Anna Meter No. 2, including but not limited to the flow -indicating transmitter and the controls associated with the transfer of wastewater to the Points of Entry. 3. Upon flow entering into the District's System, promptly pay all charges for Service, which shall be calculated based on the Customer's actual wastewater flow multiplied by the current budgeted unit cost per thousand gallons to the District's member cities, plus twenty percent (20%) (the "Customer Charge"). The charges shall be paid by the City of Anna, and all retail billing and collection shall be the responsibility of the City. 4. Promptly pay all bills for service within twenty (20) days of the in o i c e d at e (the "Due Date'). If the bill has not been paid by the Due Date, then Customer shall be considered delinquent and a ten percent (101/o) late fee will be added to the bill. 5. Be responsible for all operation and maintenance of the Facilities and all costs associated therewith. After construction of any Facilities, District shall test the associated meter and either accept or reject such meter in writing to Customer. Upon acceptance of a meter, District shall be responsible for maintenance of the meter and costs associated therewith. 6. Provide the District unrestricted access to the meter and controls on the meter station site. The Customer shall maintain all-weather access to Anna Meter Nos. 1 and 2, including but not limited to the flow -indicating transmitter, and associated controls. 7. Be responsible for obtaining all permits and certificates required by Law for construction and operation of the Facilities. 8. Continue to own and operate the Customer WWTP, and such Customer WWTP shall continue to accept wastewater flow up to the treatment capacity authorized in its Texas Pollutant Discharge Elimination System Permit No. WQ0011283001, as may be amended from time to time. Customer shall not decommission the Customer WWTP without the prior written approval of the District. 3 2269824.4 B. Customer and District shall be responsible for the proper operation of their respective systems in accordance with State and Federal Standards and this contract. Any impact that one system has on the other shall not relieve either party of their responsibility for proper operation of their respective systems. C. District shall: 1. Bill Customer for service on a monthly basis based on the Customer Charge, as described in paragraph (A)(3) above. 2. Maintain the wastewater meters required herein in accordance with District's standard maintenance practice for meters. Customer may verify the accuracy of the meter by witnessing District's verification of calibrations. Should disagreement arise regarding the accuracy of the meter, Customer may have an outside meter company evaluate the meter accompanied by District personnel once in any six (6) month period. 3. Operate the District's 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 1St day of October 1975. IV. CONDITIONS PRECEDENT TO DISTRICT'S OBLIGATIONS District's obligations to provide Service to Customer under this Contract are conditioned upon the following: 1. The land area being served shall be only the Customer Service Area. No other property may be served pursuant to the Contract. 2. Customer agrees that the wastewater from the City system discharged into the District's System shall not exceed an average day flow of 1,950,000 gallons per day or a maximum day flow of 5,850,000 gallons per day. 3. Customer shall not discharge wastewater into the District's System that exceeds any of 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 District member cities of the North Texas Municipal Water District Regional Wastewater System shall have prior rights to the service of the District's System. V. MISCELLANEOUS 4 2269824.4 A. Title to Wastewater. Title to all wastewater shall vest in Customer until discharged at the Points of Entry into District's System, at which point title to such wastewater shall pass to the District. District reserves the right of re -use of wastewater treated effluent to the extent authorized by the State of Texas. B. INDEMNIFICATION. THE DISTRICT AND CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE OTHER PARTY AND ITS OFFICERS, AGENTS, CONTRACTORS, AND EMPLOYEES (THE "INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL RISKS, LIABILITIES, LIENS, DEMANDS, SUITS, ACTIONS, LOSSES, EXPENSES, DAMAGES, COSTS (INCLUDING, BUT NOT LIMITED TO ATTORNEYS' FEES, ACCOUNTANTS' FEES, ENGINEERS' FEES, CONSULTANTS' FEES AND EXPERTS' FEES), AND CLAIMS BECAUSE OF INJURY TO PERSONS(INCLUDING DEATH) AND/OR INJURY OR DAMAGE TO OR LOSS OF ANY PROPERTY OR IMPROVEMENTS TO THE EXTENT ARISING FROM OR CAUSED BY THE ACTS AND/OR OMISSIONS OF THE OTHER PARTY OR SUCH PARTY'S OFFICERS, AGENTS, CONTRACTORS, OR EMPLOYEES IN THE EXECUTION OF, PERFORMANCE UNDER, OR ATTEMPTED PERFORMANCE UNDER THE CONTRACT. C. Entire Agreement; Amendments; Captions and Future Agreements. This Contract contains the entire agreement between the parties respecting the matters herein set forth and supersedes all prior or contemporaneous agreements or understandings, verbal or written, between the parties hereto respecting such matters. This Contract may be amended by written agreement of amendment executed by both parties thereto, but not otherwise. Section headings shall not be used in construing this Contract. This Contract shall not be considered a limitation on the District entering into additional wastewater service agreements with other third parties, and Customer acknowledges the District's ability to enter into additional agreements, as well as the fact that future agreements shall not be considered subordinate to this Contract. D. Incorporation of Exhibits and Preamble Recitals. The recitals contained in the preamble hereof and the exhibits hereto are hereby found to be true, and such recitals are hereby made a part of this Contract for all purposes. E. Counterparts. This Contract may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same document. F. Severability. If any provision of this Contract shall, to any extent, be determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Contract shall not be affected thereby, and every other term and provision of this Contract shall be valid and enforceable to the fullest extent permitted by law. G. Force Maieure. In the event that any Party is rendered unable, wholly or in part, to perform any of its obligations under this Contract (by reason of act of God, failure or national moratorium of operation of the banks, transfer agents, brokers, stock exchanges or modes of transportation; or work stoppages or restraint by court order 5 2269824.4 or other public authority; or action or inaction concerning governmental or regulatory authorizations; or transportation delay; or death or personal injury of a representative of a Party whose signature is necessary), upon the provision of written notice which fully relates the particulars of the claimed force majeure, including but not limited to the dates on which it commenced and ceased or is expected to cease by the Party claiming force majeure to the other Party as soon as is reasonably practicable after the occurrence of the cause relied upon, the obligations of the Party claiming force majeure, to the extent they are affected by the force majeure, shall be suspended during the continuance of any inability of performance so caused. This Contract shall not be terminated by reason of any such cause but shall remain in full force and effect. Any Party rendered unable to fulfill any of its obligations under this Contract by reason of force majeure shall exercise the utmost diligence to remove such inability. The suspension of obligations of a Party to this Contract pursuant to this Section shall be added to the time specified in other provisions of this Contract for the purpose of calculating the date on which certain conditions of this Contract are to be satisfied. H. Cooperation. Each Party hereby agrees that it will take all actions necessary to fully carry out the purposes and intent of this Contract. I. Addresses and Notice. All notices hereunder from Customer to District will be sufficient if sent by certified mail with confirmation of delivery, addressed to Executive Director/General Manager, North Texas Municipal Water District, 505 E. Brown St., Wylie, Texas 75098. All notices from District to Customer will be sufficiently given if sent by certified mail with confirmation of delivery to City Manager, City of Anna, P.O. Box 776 Anna, Texas 75409. All notices will be deemed to have been given on the date of mailing or sending of such notice. Any Party may change its address upon five days' written notice to the other Parties. J. Assignability. This Contract may be assigned by either Party only with the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Either Party may require any proposed assignee to execute a document evidencing the responsibility of assumption by the assignee of the obligations assigned under this Contract. K. No Third Party Beneficiaries. This Contract shall inure only to the benefit of the Parties hereto, and third persons not privy hereto shall not, in any formor manner, be considered third -party beneficiaries of this Contract. Each party hereto shall be solely responsible for the fulfillment of its customer contracts or commitments, and District shall not be construed to be responsible for Customer's contracts or commitments by virtue of this Contract or any provision contained herein. L. No Joint Venture. The Parties agree and acknowledge that this Contract does not create a joint venture, partnership, or joint enterprise, that each Party is not an agent of the other entity, and that each Party is responsible for its own acts and omissions in conjunction with performance of this Contract, and without waiving any rights or defenses under Texas law. 6 2269824.4 (signatures on following pages) 2269824.4 CUSTOMER: -E By:� Name: Philip S grs Title: City Mna er Date:7 t Approved by: By: Name: Title: Date: 2269824.4 DISTRICT: By: Name: Charles McKissick Title: President, Board of Directors Date: Approved by: By: Name: Darwin Whiteside Title: Secretary, Board of Directors Date: 2269824.4 I J February 14, 2013 North Texas Municipal Water District c/o Mickey Butler P. O. Box 2408 Wylie, Texas 75098 Re: Regional Wastewater Customer Service Contract with the City of Anna Dear Mr. Butler: Enclosed are three (3) signed originals of the Regional Wastewater Customer Service Contract with the City of Anna. Upon completion please return a fully executed copy of the service contract to Natha Wilkison, City Secretary, for the City of Anna's files. Should you have any questions, please feel free to contact me at (972) 924-3325, ext. 207. Sincerely, raWilkison City Secretary City of Anna encl. CITY OF ANNA, TEXAS 111 N. POWELL PKWY. P.O. BOX 776 ANNA, TEXAS 75409-0776 PHONE 972-924-3325 FAX 972-924-2620 www.annatexas.gov