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HomeMy WebLinkAbout14330 ORD - 05/24/1978JKH;hb:5 /?2/78 . ,• AN ORDINANCE AUTHORIZING EXECUTION OF AN AGREEMENT WITH THE TEXAS PARKS AND WILDLIFE DEPARTMENT FOR THE SALE OF UP TO 1,600,000 GALLONS OF TREATED WATER PER MONTH TO THE MUSTANG ISLAND STATE PARK, ALL AS MORE FULLY SET FORTH IN THE AGREEMENT, A SUBSTANTIAL EXHIBITS ATTACHED ", DDDECLAROINGN DE AN EMERGENCY. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the City Manager be and he is hereby authorized to execute an agreement with the Texas Parks and Wildlife Department for the sale of up to 1,600,000 gallons of treated water per month to the Mustang Island State Park, all as more fully set forth in the agreement, a substantial copy of which is attached hereto, marked Exhibit "A ", and made d a part hereof. SECTION 2. The necessity to authorize execution of the aforesaid agreement at the earliest practicable date in order that an adequate treated water supply may be available to the Mustang Island State Park creates a public emergency and an imperative public necessity requiring the suspension of the Charter rule that no ordinance or resolution shall be passed finally on the date of,its introduction but that such ordinance or resolution shall be read at three several meetings of the City Council, and the Mayor having declared such emergency and necessity to exist, having requested the suspension of the Charter rule and that this ordinance take effect and be in full force ' and effect from and a er its passage, IT IS ACCORDINGLY SO ORDAINED this the J ly day of 1978. 1 ATTEST: MAYOR THE CITY !OF PUS CHRISTI, TEXAS Secretary APPROVED: 7,4 DAY OF ° 1978 MICROFILMED J. LBRUAssistant C YCD , C Y ATTORNEY JUL 0 8 1980 By Attorney 14330 AGREEMENT THE STATE OF TEXAS COUNTY OF NUECES This agreement made this day of_____._ 1978, by and between the City of Corpus Christi, Nueces County, Texas, a municipality organized pursuant to the laws of the State of Texas, hereinafter referred to as "City" and the State of Texas, hereinafter referred to as "State ", acting herein by and through the Texas Parks and Wildlife Department (TPWD). WITNESSETH_ WHEREAS, the City, by virtue of a contract executed August 105 1955, between the Lower Nueces River Water Supply District, is the sole purchaser of untreated water from the Lower Nueces River Water Supply District and treats said water for distribution to customers of City; and WHEREAS, the state has determined that it desires to obtain a supply of potable water for use at and in Mustang Island State Park on Mustang Island (the "Park ") now in the process of construction; and WHEREAS, City has executed a contract with the Nueces County Water Control and Improvement District No. 4 (the "District ") under which the District has agreed to construct a water transmission main along with the necessary pumping and storage facilities for said main all in accordance with plans and specifications prepared by the District and acceptable to the City; and WHEREAS, the District will upon completion of construction of the transmission main, convey to the City that portion of the transmission main beginning at the northernmost boundary of the Mustang Island State Park and running south along Park Road 53 to its intersection with Park Road 22 so that the City may provide a fresh supply of potable water out of said water main to customers of the City; and WHEREAS, City desires to sell water to the State for the benefit of the City and the State; NOW, THEREFORE, for and in consideration of the mutual promises, obligations and benefits hereinafter set forth, City and the State contract 0 and agree as follows: 1. District's consulting engineers, Urban engineers, of Corpus Christi, Texas, have completed the preparation of engineering plans and specifications and District has awarded a contract for the construction of a water transmission main to convey water from Point "A" to Point "C" as shown on Exhibit "A ", and copies thereof have been furnished to the State and the same are hereby approved. 2. State shall pay to the City a one -time tap fee of $295,218 representing 100% of the State's proportional share of providing a water supply to the Park, which sum shall be due and payable when water is avail- able from the transmission main and the meter serving the State Park has been set. 3. City agrees to initially provide a fresh supply of potable water from said water main in the amount of 140 gallons per minute at a pressure of 42 psi at the then published City water rates, and upon the terms and conditions applicable to City water sales, as amended from time to time by City, to the Mustang Island State Park delivery point which shall be at Point "B" as shown on Exhibit "A ". State agrees that the system as presently designed can meet the above stated flow and pressure requirements only as long as withdrawals from the line do not exceed 1.4 mgd. At such time as withdrawals exceed 1.4 mgd, State will be required to construct its own ground storage tank and booster system at State's expense to meet the Park's requirements. A different or additional point or points of delivery may be designated by and with the consent of both parties as circumstances may require. Title to, possession of, and control of water delivered hereunder, shall remain with City until such water shall pass through the meter at the point or points of delivery where title to, possession and control of such water, shall pass from City to the State. The State will provide and main- tain at its cost all pipes, fittings, and facilities for receiving water hereunder, at the point or points of delivery specified herein. 4. City agrees to sell and deliver to the State and the State agrees to buy from City and pay for in accordance with the provisions of this contract, up to a maximum of 1,600,000 gallons of water per month. The -2- City agrees further to use its best efforts to begin delivery of water on or before March 1, 1979, but failure to deliver water by such date shall not constitute a default hereunder. 5. It is understood and agreed that City shall use reasonable diligence to prevent the pollution or contamination of any of the water supply referred to herein from any cause, and further that such water shall be treated water of such quality as to meet the requirements of the Texas Department of Health at the point of delivery. In order to assure the members of the public who will visit the Park that the quality of water available to them for consumption is the best available, it is hereby agreed that the State will supply potable water at the Park only from the water sold to the State by City under this contract, except during any period when City is unable to deliver water to the State hereunder. 6. City shall furnish, install, operate and maintain at Point "8" and at each point of delivery the necessary equipment and devices of standard type for measuring properly the quantity of water received from the City. Such meter or meters or other equipment so installed shall remain the property of City. The State shall have access to such metering equipment at all reasonable times, but the reading, calibration, and adjustment thereof shall be done only by the employees or agents of the City. For the purpose of this contract, the original record or reading of the meter or meters shall be in a journal or other record book of City in its office in which the records of the employees or agents of City who take the readings are or may be transcribed. Upon written request of the State, City will give the State a copy of such journal or record book, or permit the State to have access to the same in the office of City during reasonable business hours. The State shall have the right to request City, in writing, to calibrate its meter or meters not more than once in each 180 -day period in the presence of a representative of the State, and the parties shall jointly observe any adjustments which are made to the meters in case any adjustment shall be necessary and, if the check meters hereinafter provided for shall have been installed, the same shall also be calibrated by the State in the presence of a representative of the City and the parties shall jointly observe any adjustment in case any adjustment is necessary. If the -3- State shall, in writing, request the City to calibrate its meters and the City shall give the State 48 hours notice of the time when any such cali- bration is to be made and if a representative of the State is not present at the time set, City may proceed with calibration adjustment in the absence of any representative of the State. The State may, at its option and expense, install and operate a check meter to check each meter installed by City, but the measurement of water for the purpose of this contract shall be solely by City's meters, except in the cases hereinafter specifically provided to the contrary. All such check meters shall be of standard make and shall be subject at all reasonable times to inspection and examination by any employee or agent of City, but the reading, calibration and adjustment thereof shall be made only by the State, except during any period when the check meter may be used under the provisions hereof for measuring the amount of water delivered, in which case the reading, calibration and adjustment thereof shall be by City with like effect as if such check meter or meters had been furnished or installed by City. If, upon any test, the percentage of inaccuracy of any metering equipment is found to be in excess of 2%, registration thereof shall be corrected for a period extending back to the time when such inaccuracy began, if such time is ascertainable and if such time is not ascertainable, then for a period extending back one -half of the time elapsed since the last date of calibration, but in no event no further back than the period of 90 days. If for any reason any meters are out of service or out of repair so that the amount of water delivered cannot be ascertained or computed from the reading thereof, the water delivered during the period such meters are out of service or out of repair shall be estimated and agreed upon by the parties hereto upon the basis of the best data available. For such purpose, the best data available shall be deemed to be the registration of any check meter or meters, if same have been installed and are accurately registering. Otherwise, the amount of water delivered during such period may be estimated (a) by correcting the error, if the percentage of the error is ascertainable by calibrating tests or mathematical calculations, or (b) by determining the quantity of water delivered the preceding period under similar conditions -4- when the meter or meters were registering accurately. 7. City shall read all the meters monthly and promptly render monthly bills to the State based on such readings. Such bills shall be due and payable within 30 days from the date the same are deposited in the United States mail.,properly stamped and addressed to the State. If the State fails to pay any bill due to City on or before due date, City may give notice of such delinquency to the State in writing and, if all bills due and unpaid are not paid within 60 days after deposit of such notice, properly stamped and addressed, to the State in the United States mail, then City shall be authorized to discontinue further water service until all bills due have been paid in full. 8, If City should be prevented wholly or in part from furnishing water to the State under this contract by reason of any force majeure, including without limitation, acts of God, unavoidable accidents, acts of public enemy, strikes, riots, floods, fires, government restraint or regulations, break in City's pipelines, except breaks caused or contributed to by City's negligence, or for any other cause beyond City's control, then the obligation of City to deliver water to the State shall be temporarily suspended during that continuance of such force majeure. No damages shall be recoverable from City by reason of the temporary suspension of delivery of water due to any force majeure. If City's ability to deliver water to the State is affected by any force majeure, City shall promptly notify the State in writing or by telegraph, giving the particulars as soon as practicable after the occurrence of the cause or causes for such interruption and shall proceed with all due diligence to remedy such cause or causes. If service is interrupted by any act or omission of a third party, the State reserves the right to sue in its name or in the name of City to collect all damages and costs of all emergency actions required, and this force majeure clause shall not be available to a third party as a defense. 9, Whenever this contract requires or permits approval or consent to be hereafter given by the State, such approval or consent shall be effective without regard to whether such approval or consent is given before or after the time required herein. Such approval or consent shall be -5- evidence by written letter signed by the Executive Director of the Texas Parks and Wildlife Department. No consent or approval of the State shall be required as a condition to any action by City, except as expressly required in this contract, 10, Unless otherwise provided in this contract, any notice, communication, request, reply, or advice (herein severally and collectively, for the convenience, called "notice ") herein provided or permitted to be given, made, or accepted by either party to the other must be in writing and may be given or be served by depositing same in the United States mail postpaid and addressed to the party to be notified, with return receipt requested, or by delivering same to an officer of such party, or by prepaid telegram, when appropriate, addressed to the party to be notified. Notice deposited in the mail in the manner hereinabove described shall be con- clusively deemed to be effective, unless otherwise stated in this contract, from and after the expiration of 3 days after it is so deposited. Notice given in any other manner shall be effective only if and when received by the parties to be notified. For the purposes of this notice, the address of the parties shall, until changed as hereinafter provided, be as follows: If to the State: Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744, attention: Executive Director; if to the City: City Manager, City of Corpus Christi, P. 0. Box 9277, Corpus Christi, Texas 78408. The parties shall have the right from time to time and at any time to change their respective addresses and each shall have the right to specify as its address any other address by at least 15 days written notice to the other party. 11. Modification, This contract shall be subject to change or modification at any time, but only with the mutual consent of the parties hereto, in writing, with any State action to modify this contract being first approved by the Texas Parks and Wildlife Commission. 12. Assign_abilitY• This contract shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, but this contract shall not be assignable by either party -6- without the prior written consent of the other: Whenever reference is made in this contract to either of the parties hereto, such reference shall be deemed to include, wherever applicable, a reference to the successors and assigns of such parties. 13. Severability. The provisions of this contract are severable, and if any provision or part of this contract or the application thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this contract and the application of such provision or part of this contract to other persons or circumstances shall not be affected thereby. 14 . Term. This contract shall be in force and effect from the date hereof for a primary term of twenty years; thereafter, this contract shall continue from year to year subject to the right of either party to terminate the contract on one hundred and twenty days written notice to the other party. IN WITNESS WHEREOF, the parties hereto have executed this contract in multiple counterparts, each of which shall be deemed an original, as of the date and year first above written. ATTEST: TEXAS PARKS AND WILDLIFE DEPARTMENT By Executive Director CITY OF CORPUS CHRISTI By City Secretary R. Marvin Townsend, City Manager APPROVED: DAY OF 1978: J. BRUCE AYCOCK, CITY ATTORNEY By Assistant City Attorney Director of Finance zl f'."jc G .r • Exh���� A . a . 1 . Corpus Christi, Texas tday of_ 1 19� TO THE MEMBERS OF THE CITY COUNCIL Corpus Christi, Texas For the reasons set forth in the emergency clause of the foregoing ordinance, a public emergency and imperative necessity exist for the suspension of the Charter rule or requirement that no ordinance or resolution shall be passed finally on the date it is introduced, and that such ordinance or resolution shall be read at three meetings of the City Council; I, therefore, request that you suspend said Charter rule or requirement and pass this ordinance finally on the date it is introduced, or at the present meeting of the City Council. Respectfully, The Charter Rule was suspended Gabe Lozano, Sr. Bob Gulley David Diaz Ruth Gill Joe Holt Tony Juarez, Jr. Edward L. Sample THE CITY OFWUS CHRISTI, TEXAS Fnlinwina vote: The above ordinance was passed Gabe Lozano, Sr. Bob Gulley David Diaz Ruth Gill Joe Holt Tony Juarez, Jr. Edward L. Sample vote: 14330