HomeMy WebLinkAboutRes 2013-02-09 Amendment Melissa-Anna WW Service Agreement.pdfCITY OF ANNA, TEXAS
RESOLUTION NO. 2013-02-09
A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING AN AMENDMENT
TO THE CITY OF MELISSA — CITY OF ANNA WASTEWATER SERVICE
AGREEMENT.
WHEREAS, on August 28, 2009, the City of Melissa ("Melissa") and the City of Anna
("Anna"), collectively referred to as the "Parties", entered into a Wastewater Service
Agreement, also described as the City of Melissa — City of Anna Wastewater Service
Agreement (the "Melissa -Anna Agreement"), and
WHEREAS, the Parties have previously agreed to work in good faith toward
restructuring or amending the Melissa -Anna Agreement upon any circumstances that
would provide relief or additional wastewater capacity being discharged by Melissa and
Anna for treatment by the North Texas Municipal Water District (the "District"); and
WHEREAS, Melissa and Anna entered into the Melissa -Anna Agreement with the
anticipation that Anna would negotiate with the District in good faith to reach a contract
directly with the District under which the District would directly provide Anna with
wastewater treatment services as a customer of the District, which would require a
restructuring of the Melissa -Anna Agreement; and
WHEREAS, the Parties have previously agreed that such restructuring should be in the
form of a separate written agreement between the District and Anna, and an
amendment to the Melissa -Anna Agreement; and
WHEREAS, Anna has approved a separate Regional Wastewater Customer Service
Contract with the District; and
WHEREAS, the Melissa -Anna Agreement provides that the Parties may terminate the
Melissa -Anna Agreement at any time upon mutual written consent; and
WHEREAS, the Parties desire to approve an Amendment to the City of Melissa — City
of Anna Wastewater Service Agreement which provides for the termination of the
Melissa -Anna Agreement;
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.
RES. 2013-02-09 Amendment Melissa -Anna WW Service Agreement PAGE 1 OF 2 02-26-13
Section 2. Approval of Resolution
The City Council of the City of Anna, Texas hereby approves the Amendment to the City
of Melissa — City of Anna Wastewater Service Agreement, 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 Amendment.
PASSED AND APPROVED by the City Council of the City of Anna, Texas on this 26th
day of February, 2013.
APPROVE - ATTEST:
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Mike trist, Mayor N a Wilkison, City Secretary
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RES. 2013-02-09 Amendment Melissa -Anna WW Service Agreement PAGE 2 OF 2 02-26-13
TERMINATION OF CITY OF MELISSA - CITY OF ANNA
WASTEWATER SERVICE AGREEMENT
THIS TERMINATION OF CITY OF MELISSA — CITY OF ANNA
WASTEWATER SERVICE AGREEMENT ("Termination"), dated as of the ' day of
February, 2013, to be effective on the 1" day of March, 2013 ("Effective Date"), is made and
entered into by and between the CITY OF MELISSA, TEXAS, a Texas Home -Rule municipal
corporation ("Melissa') and the CITY OF ANNA, TEXAS, a Texas Home -Rule municipal
corporation ("Anna"), and on the terms and conditions hereinafter set forth. Melissa and Anna
are sometimes collectively referred to herein as the "Parties" and individually as a "Party".
WHEREAS, on August 28, 2009, the Parties entered into a Wastewater Service
Agreement, also described as the City of Melissa — City of Anna Wastewater Service Agreement
("Melissa -Anna Agreement"), attached hereto as Exhibit "A" and incorporated herein for all
purposes; and
WHEREAS, Melissa and Anna entered into the Melissa -Anna Agreement with the
anticipation that Anna would negotiate with the North Texas Municipal Water District
("District") in good faith to reach a contract directly with the District under which the District
would directly provide Anna with wastewater treatment services as a customer of the District,
causing the Melissa -Anna Agreement to no longer be necessary; and
WHEREAS, Anna anticipates entering into a separate Regional Wastewater Customer
Service Contract with the District in the near future; and
WHEREAS, pursuant to Paragraph VII(D) of the Melissa -Anna Agreement, the Parties
may terminate the Melissa -Anna Agreement at any time upon mutual written consent; and
WHEREAS, the Parties, by this Termination, desire to provide for the termination of the
Melissa -Anna Agreement as set forth herein.
NOW, THEREFORE, the Parties mutually agree to the following terms and conditions:
SECTION I. RECITALS
The recitals set forth above are incorporated into this Termination as if set forth in full for all
purposes.
SECTION II. TERMINATION OF MELISSA -ANNA AGREEMENT
The Melissa -Anna Agreement, attached hereto as Exhibit "A", is hereby terminated as of the
Effective Date of this Termination, subject to the fulfillment of Anna's obligation set forth in
Section III (Final Invoice and Payment) below.
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SECTION III. FINAL INVOICE AND PAYMENT
Within ten (10) business days of the Effective Date of this Termination, Melissa shall send a
final invoice to Anna for all outstanding amounts owed to Melissa under the terms of the
Melissa -Anna Agreement. Within thirty (30) days of receipt of said final invoice, Anna shall
remit to Melissa any outstanding payments due to Melissa under the terms of the Melissa -Anna
Agreement. Upon receipt of Anna's final payment by Melissa, the Parties agree that all of the
Parties' obligations under the Melissa -Anna Agreement will have been fully satisfied, thereby
rendering the same terminated and of no force and effect. Should Anna fail to tender the
outstanding payments as provided in this Section, the Parties agree that Melissa shall have any
and all rights and remedies available to it for payment thereof as set forth in the Melissa -Anna
Agreement.
SECTION IV. EXECUTION AND DELIVERY OF DOCUMENT
Upon consideration and action by the governing bodies of each Party, two (2) originals of this
Termination shall be executed, with one original being delivered to the other Parry. The Parties
agree that this Termination may be executed in number of identical counterparts, each of which
shall be deemed an original for all purposes.
THIS TERMINATION WAS APPROVED BY THE CITY COUNCIL OF THE CITY OF
ANNA at its Regular meeting on the oA d day of a , 2013, with
authorization for the Mayor to execute the Termination on behalf of the Ci of Anna.
CITY OF ANNA
ATTEST:
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Nat a Wilkison, City Secretary
THIS TERMINATION WAS APPROVED BY THE CITY COUNCIL OF THE CITY OF
MELISSA at its Regular meeting on the day of , 2013, with
authorization for the City Manager to execute the Termination on behalf of the City of Melissa.
CITY OF MELISSA
ATTEST:
LINDA BANNISTER, CITY SECRETARY JASON LITTLE, CITY MANAGER
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EXHIBIT "A"
City of Melissa — City of Anna Wastewater Service Agreement
The City of Melissa ("Melissa") and the City of Anna ("Anna') hereby enter into this
Wastewater Service Agreement (this "Agreement'), with an effective date of . - 26joq
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
WHERE AS, 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 §791.001, 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, THE, Melissa and Anna mutually agree to the following terms and
conditions:
City of Melissa — City of Anna Wastewater Service Agreement Page I
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I. RECITALS
The recitals set forth above are incorporated into this Agreement as if set forth in full for
all purposes.
if. 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
nzyy�utiDi r tboSxym-SLi h-111wb9mirw intn the MPtiecA Hart of the CVCYP.YTt !`P.TtAiTI AOYPP.ri-
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 of 333,200 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
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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 00/100 Dollars
($118,332.00) (the "Right -of -Way Costs"). Simultaneously withits 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.
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 I" 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% of the 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.
V1. 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.
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
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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.
B. 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
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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.
THIS CONTRACT APPROVED BY THE City Council of the City of Anna at its Regular
meeting on the all day of k 2009, with authorization for the Mayor and
City Secretary to execute the agTeemojit on behalf of the City of Anna.
CITY OF ANNA
ATTEST: ,2
CIT SECRETARY a
THIS CONTRACT REVIEWED Afle,btti D BY THE CITY COUNCIL OF THE
CITY OF MELISSA in a Regular meeting on the A b 0 day of
2009 with authorization for the Mayor and City Secretary to execute the ag'reem&ht on behalf of
the City of Melissa.
CITY OF MELISSA
ATTEST:
CI1' 3�?r°°TF,✓® MAYOR
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