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HomeMy WebLinkAboutRes 2023-02-1382 Interlocal Agreement with City of Howe Minimum Water Supply Contract PurchaseCITY OF ANNA, TEXAS RESOLUTION NO. sZ0;2-3-Ov2-1 3$a A RESOLUTION OF THE CITY OF ANNA, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERLOCAL AGREEMENT BY AND BETWEEN THE CITY OF ANNA AND THE CITY OF HOWE FOR THE PURCHASE OF A PORTION OF THE CITY OF HOWE'S CONTRACT MINIMUM WATER SUPPLY THROUGH THE GREATER TEXOMA UTILITY AUTHORITY; AND FURTHER AUTHORIZING THE CITY MANAGER TO MAKE PAYMENT TO THE CITY OF HOWE FOR THE PURCHASE OF SAID ADDITIONAL WATER SUPPLY AS SET FORTH IN THE TERMS AND CONDITIONS OF THE INTERLOCAL AGREEMENT; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Anna and the Cities of Howe, Melissa, and Van Alstyne are all members of the Collin Grayson Municipal Alliance; and WHEREAS, the Collin Grayson Municipal Alliance has a contract with the Greater Texoma Utility Authority for the purchase of water with agreed upon take or pay minimum volumes for each City; and WHEREAS, the City of Anna is growing in both size and population, which is increasing the demand for water within the City; and WHEREAS, it is in the public interest for the City of Anna to purchase a portion of the City of Howe's unused take or pay minimum volume in order to supply the City of Anna with the volume of water required to serve the public; and WHEREAS, the purchase of a portion of the City of Howe's unused take or pay allows the City of Anna to prevent the automatic increase to their contractual take or pay minimum volume; and WHEREAS, the Interlocal Agreement is attached hereto as Exhibit A; 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 Interlocal Agreement and Authorization of Payment The City Council of the City of Anna, Texas hereby approves the Interlocal Agreement attached hereto as Exhibit A and authorizes the City Manager to execute the Interlocal Agreement and approve payment for the purchase of a portion of the City of Howe's take or pay minimum volume of water. PASSED AND APPROVED by the City Council of the City of Anna, Texas and to be effective this Z $}"day of February 2023. EXHIBIT A INTERLOCAL AGREEMENT BY AND BETWEEN THE CITY OF ANNA, TEXAS AND THE CITY OF HOWE, TEXAS FOR PURCHASE AND CORRESPONDING SALE OF A PORTION OF THE SELLING CITY'S MINIMUM ANNUAL VOLUME OBLIGATION UNDER THE GTUA-CITIES OF MELISSA, ANNA, VAN ALSTYNE, AND HOWE POTABLE WATER SUPPLY CONTRACT THIS AGREEMENT is made and entered by and between the CITY OF ANNA, TEXAS, a Texas Home -Rule Municipal Corporation, hereinafter referred to as "Anna", and the CITY OF HOWE, TEXAS, a Texas General Law City hereinafter referred to as "Howe", collectively referred to herein as the "Cities", as follows: WITNESSETH: WHEREAS, both Anna and Howe are political subdivisions within the meaning of Interlocal Cooperation Act, Texas Government Code, Chapter 791, as amended (the "Act"); and WHEREAS, the Act provides authority for entities such as Anna and Howe to enter into inter -local agreements with each other to perform governmental functions and services as set forth in the Act; and WHEREAS, each of the Cities has previously entered into an agreement with the Greater Texoma Utility Authority, hereinafter referred to as "GTUA" for the planning, construction, funding, and operations of a surface water supply system to serve the collective Contract Cities of Melissa, Anna, Van Alstyne, and Howe, which agreement specifies the obligations of each participant; and WHEREAS, each of said Cities has entered an Amended and Restated Contract for Water Supply providing that from the time water has been delivered to each Participating City for one month and forward, on a monthly basis, each Participating City shall be charged for water at the greater of its minimum annual volume amount (MAV) under the Potable Water Supply Contract made and entered between such Participating City and GTUA; and WHEREAS, for the water year 2021-2022 ended July 31, 2022, as provided for in said water purchase agreements, including the North Texas Municipal Water District, hereinafter referred to as "NTMWD" standard water purchase agreement, only the City of Anna received delivery of water which equaled or exceeded the individual City required MAV; and WHEREAS, the Contract Cities of Melissa, Anna, Van Alstyne, and Howe have a multi- year precedent of the referenced Minimum Annual Volume (MAV) Buy -Sell concept as referenced herein and as is further referenced and detailed in "Exhibit A" attached hereto for reference in establishing the buy -sell rate, identifying the MAV water to be transferred, and referencing the amount of purchase / transfer cost; and WHEREAS, the City of Howe is desirous of selling to each Anna, Melissa, and Van Alstyne a portion of their unused MAV and Anna, Melissa, and Van Alstyne are willing to purchase said unused portion of the MAV as defined in this agreement and detailed in "Exhibit A" thus allowing Howe to recover a portion of its purchased but unused MAV for the stated water year; and WHEREAS, the background of the above noted agreements, volumes, rates, and circumstances are further detailed in the October 3, 2022, updated October 10, 2022, memorandum titled "Sale of GTUA-CGMA Buy -Sell MAV to Participant City" attached hereto for reference and labeled "Exhibit A". NOW, THEREFORE, ANNA and HOWE, for and in consideration of the recitals set forth above and terms and conditions below, agree as follows: I. TERM This Agreement shall apply to the NTMWD water year ended July 31, 2022 and shall be executed and consummated in full between October 31, 2022 and January 31, 2023 and shall not apply to subsequent water volumes or water years unless said Cities so authorize by subsequent agreement. II. AGREEMENT The Cities agree that HOWE shall transfer 20,839,200 gallons (20,839.2 one -thousand - gallon increments) of MAV water to ANNA for the water year ended July 31, 2022, and ANNA shall remit to HOWE a payment for said transfer of MAV at the rate of $3.429 per thousand gallons totaling in the sum of $71,457.70 as payment in full for said portion of HOWE's unused 2022 MAV. Following execution of this agreement, HOWE shall submit to ANNA an invoice for the transfer of the described MAV for the above stated sum and ANNA shall remit payment for said transfer within thirty (30) days of receipt of said invoice, it being the intent that this transaction shall be completed as soon as reasonably possible, but on or before January 31, 2023, although it is specifically provided that completion of said invoicing and payment after said date shall not invalidate any portion of this agreement, it being the intent however to complete said transaction before or by the stipulated date. M. RESPONSIBILITIES OF THE PARTIES 1. The respective City Councils of ANNA and HOWE shall each approve an interlocal agreement authorizing the sale / purchase of the stipulated portion of MAV water as described herein and further detailed in the attached Exhibit A. 2. HOWE, following approval of the interlocal agreement by each party thereto shall submit to ANNA an invoice for the referenced volume of MAV water detailed above in Section 11 and for the stipulated sell / purchase amount. 3. ANNA shall remit to HOWE the above stated payment for the transferred MAV water within thirty (30) working days of the receipt of referenced invoice. 4. Any party hereto wishing to verify the metered quantities of water or the portion of the minimum annual volume to which this agreement refers shall be entitled to verification subject to said verification being completed prior to the submission of the invoice referenced in item III — 2 above. Should GTUA verification indicate a different volume of minimum annual volume than referenced herein, the parties hereto shall modify said quantity and the resultant payment for said quantity of minimum annual volume prior to the invoicing and payment phase (item III — 2 & 3 above). IV. TERNIINATION C. The Cities recognize that this Agreement shall commence upon the effective date herein and continue in full force and effect until termination in accordance with its provisions. Anna and HOWE herein recognize that the continuation of any contract after the termination of this agreement or impacting any future water year shall be subject to City Council approval for each City, respectively. Following termination of this agreement, or should either City fail to execute this agreement, there shall be no further commitment hereunder. However, upon the occurrence of such event in which either party terminates this Agreement by giving the other party thirty (30) days written notice, the selling party shall forward such notice to GTUA so that alternative billing for the water volume specified in this agreement may be processed per the GTUA-CGMA billing policy. V. RELEASE AND HOLD HARMLESS Anna and HOWE, to the extent authorized under the constitution and laws of the State of Texas, agree to be responsible for their own acts of negligence which may arise in connection with any and all claims for damages, cost, and expenses to person or persons and property that may arise out of or be occasioned by this Agreement. In the event of joint and concurrent negligence, Anna and HOWE agree that responsibility shall be apportioned comparatively. This obligation shall be construed for the benefit of the parties hereto, and not for the benefit of any third parties, nor to create liability for the benefit of any third parties, nor to deprive the parties hereto of any defenses each may have as against third parties under the laws and court decisions of the State of Texas. VI. AUTHORITY TO SIGN The undersigned officer and/or agents of the parties hereto are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the parties hereto. The Cities have executed this Agreement pursuant to the authority granted by its governing body. IX. SEVERABILITY The provisions of this Agreement are severable. If any paragraph, section, subdivision, sentence, clause, or phrase of this Agreement is for any reason held to be contrary to the law or contrary to any rule or regulation having the force and effect of the law, such decisions shall not affect the remaining portions of the Agreement. X. VENUE This Agreement and any of its terms or provisions, as well as the rights and duties of the parties hereto, shall be governed by the laws of the State of Texas. The parties agree that this Agreement shall be enforceable in Collin County, Texas, and, if legal action is necessary, exclusive venue shall lie in Collin County, Texas. XI. INTERPRETATION OF AGREEMENT It is acknowledged that this is a negotiated document. Should any part of this Agreement be in dispute, the Cities agree that the Agreement shall not be construed more favorably for either City. XII. REMEDIES No right or remedy granted herein or reserved to the parties is exclusive of any right or remedy granted by law or equity; but each shall be cumulative of every right or remedy given hereunder. No covenant or condition of this Agreement may be waived without the express written consent of the parties. It is further agreed that one (1) or more instances of forbearance by either party in the exercise of its respective rights under this Agreement shall in no way constitute a waiver thereof. XIII. SUCCESSORS AND ASSIGNS The parties each bind themselves, their respective successors, executors, administrators and assigns to the other party to this contract. Neither party will assign, sublet, subcontract or transfer any interest in this Agreement without the prior written consent of the other party. No assignment, delegation of duties or subcontract under this Agreement will be effective without the written consent of both parties. IN WITNESS WHEREOF, the parties have executed this Agreement by signing below. Date: APPROVED AS TO FORM: CITY ATTORNEY Date: APPROVED AS TO FORM CITY ATTORNEY CITY OF ANNA, TEXAS By: �- Van Henderson Assistant City Manager CITY OF HOWE, TEXAS LE Jeff Stanley City Administrator ACKNOWLEDGMENTS STATE OF TEXAS § COUNTY OF COLLIN § This instrument was acknowledged before me on the I St day of A a;-c W , 33 A Ss; 202 ly dun HendersGn , Clizc vmcuaaes of the City of Anna, Texas, a Texas Home -Rule Municipal Corporation, on behalf of said municipality. �SrovB,� JEOVANNA RUBIO Notary Public, State of Texas *. �Italef Comm. Expires 10-03-2026 Otary Public, Texas Notary ID 133995676 STATE OF TEXAS § COUNTY OF GRAYSON § This instrument was acknowledged before me on the day of , 2022, by , of the City of Howe, Texas, a Texas General Law City, on behalf of said municipality. Notary Public, State of Texas Exhibit A Attach copy of October3, 2022, updated October 10, 2022 memorandum from Donald E. Paschal, Jr. to CGMA Mayors and City Managers regarding the subject: "Sale of GTUA-CGMA MAV to Participant City" A*07% City of Howe UWP. 0. Box 518 Howe, Texas, 75459 903-532-5771 City of Anna P 0 Box 776 Anna TX 75409 Qty Description Unit Price Gallons/Thousand Thank you! INVOICE Date: January 16, 2023 INVOICE # 201121