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HomeMy WebLinkAbout021047 ORD - 12/11/1990AN ORDINANCE AUTHORIZING THE CITY MANAGER TO ENTER INTO A WATER SALES CONTRACT WITH JAMES R. MCCELVEY DBA CHOKE CANYON WATER SYSTEMS, ALL AS MORE FULLY SET FORTH IN THE CONTRACT, A SUBSTANTIAL COPY OF WHICH IS ATTACHED HERETO, MARKED EXHIBIT "A", AND MADE A PART HEREOF, AND DECLARING 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 enter into a water sales contract with James R. McCelvey dba Choke Canyon Water Systems, all as more fully set forth in the contract, a substantial copy of which is attached hereto marked as Exhibit "A." SECTION 2. That upon written request of the Mayor or five Councilmembers, copy attached, to find and declare an emergency due to the need for the efficient and effective administration of City affairs, such finding of an emergency is made and declared requiring suspension of the Charter rule as to consideration and voting upon ordinances at three regular meetings so that this ordinance is passed and shall take effec pon , irst�g as 1nn emergency measure this the / dayof jJf�Q ATTEST: lVirtiw�r-vim l (1 City Secretary MAYOR THE CITY OF CORPUS CHRISTI APPROVED: 7 DAY OF 1r'( :,tiL�_j , 19'3 i HAL GEORGE, CITY ATTORNEY Blc t ,,o 0A `� UCrG4_t it' Assistant City Attorney. 21047 ?AiCRO hMED WATER CONTRACT BETWEEN THE CITY OF CORPUS CHRISTI AND CHOKE CANYON WATER SYSTEM STATE OF TEXAS COUNTY OF NUECES WHEREAS, James Rex McCelvey doing business as Choke Canyon Water Systems, a Texas sole proprietorship, has been duly organized and established pursuant to Certificate of Convenience and Necessity No. 12012 issued by the Texas Water Commission, for the purpose of constructing and operating, and from time to time making extensions of, a water supply distribution system serving water users within the area described in plans now on file in the office of the Choke Canyon Water Systems (herein called "Water Systems"); and WHEREAS, the Federal Bureau of Prisons has requested Water Systems to approach the City of Corpus Christi to provide the necessary water to the Federal Bureau of Prisons Correctional Institute west of Three Rivers, Texas; and WHEREAS, the City of Corpus Christi, a municipal corporation, existing by virtue of the laws of the State of Texas (herein called "City"), has determined that at this time sufficient water is available so as to serve the existing customers of City, meet the obligations of the existing contracts of City, and provide the anticipated requirements of Water Systems; 90AG001.wtr 1 NOW, THEREFORE, the parties agree as follows: 1. Duality and quantity. City agrees to sell Water Systems, at the point of delivery hereinafter specified, during the term of this contract or any renewal or extension thereof, water in such quantity as may be required by Water Systems but limited to a maximum of 500,000 gallons per day. In the event that Water Systems takes delivery of more than 500,000 gallons per day averaged over each month, for three successive months, this contract must be renegotiated. 2. Point of Delivery. Delivery shall be made at Choke Canyon Reservoir at the approximate location shown on the topographical map attached hereto and made a part hereof for all purposes as Exhibits A & B. The raw water intake shall be constructed at an elevation between 170 feet and 200 feet mean sea level. If the City determines that a level below 170 feet mean sea level is advantageous Tor combined reservoir operations, then City agrees to give Water Systems two years notice to permit the reconstruction of its intake facilities, pumps, etc., before lowering such water level below 170 feet. Should shoaling occur in the lake, City shall have the right to dredge or in any other manner remove such obstruction to an elevation of the original lake bottom. 3. Measurement of Water. The raw water delivered under this contract shall be measured by a suitable water meter or meters to be installed and maintained by Water Systems at the place of delivery. City shall have the right to specify the type of meter or meters to be used and to specify the installation 90AG001.wtr 2 design of the meter or meters. Checks as to the accuracy of the meter or meters shall be made semi-annually by City, and City shall notify Water Systems in writing ten (10) days in advance of all semi-annual checks and tests in order that Water Systems may have a representative present as a witness. Semi-annual tests as to the accuracy of the meter or meters shall be at City's expense. If either City or Water Systems, at any time, shall notify the other that it desires a special test of any meter the parties shall cooperate in arranging for a special test to be made by City. The expense of the special test of the meter or meters shall be paid by the party requesting such test. If, on any test, the meter tested shall be found to be inaccurate by an amount exceeding two percent (2%), then any previous readings of such meter shall be corrected for any period of inaccurate measurement thereby which is definitely known or agreed upon. But no such correction shall extend back over a period beginning more than fifteen (15) days prior to the time when such inaccuracy was first made known by either party to the other. If, for any reason, the meter or meters are out of service so that the volume of water delivered hereunder cannot be ascertained or computed for meter readings thereof, the water delivered during the period such meter or meters are out of service shall be estimated and agreed upon by the parties hereto upon the basis of the best data available. City shall read the meter or meters on or about the last day of each month and shall determine from these readings the amount of water delivered to 90AG001.wtr 3 Water Systems. All such integrator readings shall be made available to Water Systems' representatives at all reasonable office hours. 4. Construction of Facilities. Water Systems shall construct or cause to be constructed at no expense to City, a raw water intake and pump station located on the Choke Canyon Reservoir, as shown on Exhibit A, together with a water transmission main, treatment plant, storage facilities, and related appurtenances to permit taking water by Water Systems to serve the Federal Bureau of Prisons Correctional Institution west of Three Rivers. Water Systems facilities shall be constructed in accordance with plans and specifications to be prepared by Water Systems and acceptable to City. Water Systems shall be responsible for obtaining and maintaining any permits necessary for the construction, operation, and maintenance of the contemplated water facilities and related appurtenances of Water Systems. 5. Right -of -Way and Easements. Water Systems shall be responsible for the acquisition of all easements, rights-of-way, and land necessary for the construction, operation, and maintenance of the facilities to be built by Water Systems. 6. Price. The price to be charged for raw water sold by City to Water Systems shall be the published rate for raw water outside city limits at the time of taking, as same as may be amended from time to time. 7. Fixed Minimum Obligation. Water Systems is not obligated to purchase any minimum amount of water in any billing 90AG001.wtr 4 month during the period of this contract or any renewal or extension thereof, but Water Systems shall pay City a minimum sum of $200 per month, regardless of whether any water is used. If the payment due City from Water Systems for water withdrawn during the billing period under consideration exceeds the minimum, then payment shall be made for the amount due. If the payment which would be due on the basis of water withdrawn is less than the minimum, then the said minimum shall nevertheless be the amount due. This minimum amount is intended to cover the cost of meter readings, testing, billing, and other costs, which will continue whether or not any water is withdrawn by Water Systems. 8. Restrictions on Resale. Water Systems may use all water withdrawn up to the maximum of 500,000 gallons per day only for use at the Federal Bureau of Prisons Correctional Institute west of Three Rivers, Texas. Said 500,000 gpd maximum may not be used for any other customer of Water Systems. Sale to any other customer of Water Systems shall be cause to terminate this contract. 9. Billing. All water taken in any one calendar month shall be billed between the first and tenth of the next succeeding calendar month and payment shall made at the utility office of the Department of Public Utilities of City, in the City of Corpus Christi, Texas, within ten (10) days of the receipt of such bill. Any clerical error or minor question regarding said statement will not be sufficient grounds to delay payment by Water Systems to City. Any such questions shall be properly 90AG001.wtr settled under the terms of this contract and by the agreement of both parties hereto. Any adjustments in the amount paid as a result of such agreement shall be added to or deducted from the following month's bill. Any failure monthly billing within 30 days after "Default" in accordance with Section by Water Systems to pay the such billing date shall be a 18 of this contract. In the event it becomes necessary to collect such charges, through any Court procedure, City shall be entitled to also recover reasonable attorney's fees. In the event it becomes necessary for City to stop selling water, due to Water Systems' failure to its water bills, City may require the payment in advance of pay each monthly water bill based on the previous bill plus any adjustment as a condition to the resumption of furnishing water to Water Systems. 10. Water Rights. it is. mutually agreed and understood that City impounded remain in take the necessary as may be contracts, shall have complete and exclusive rights to all water by City reservoirs during the time this contract shall force. City binds and obligates itself, however, to necessary actions within its power and to make the applications to obtain whatever additional water rights necessary to adequately meet the needs of its existing this contract with Water Systems, and any future contractual obligations of city. It is also mutually agreed and understood that this contract is subject to City obtaining any necessary permission from the Texas Water Commission or other regulatory authority over such matters to sell water to Water 90AG001.wtr 6 Systems, and Water Systems agrees to support any future City requests to the Texas Water Commission or other regulatory authority for said permission. 11. Maintenance and Operation of Facilities. The water intake facility and related improvements constructed by Water Systems shall be maintained, operated, and repaired by Water Systems subject to provisions herein contained. City shall have the right to require Water Systems to maintain the facilities on federally owned property or easements in a manner comparable to the level of maintenance at similar City facilities. 12. Rationing of Water. Water Systems and City agree to the following stipulations with regard to the rationing of water: A. The water sale contract between Water Systems and the Federal Bureau of Prisons for the Correctional Institution west of Three Rivers shall stipulate that should there be a shdrtage in the basic supply of water which requires the restriction or curtailing of any customer of water within the City limits of City that coincident with such restriction or limitation within the City, Water Systems will limit and restrict the Federal Bureau of Prisons as follows: Water Systems and City agree to the following stages in reduction of raw water consumption by Water Systems as the City Manager of City declares the various water shortage conditions to be in force in accordance with Section 55-151 of the Corpus Christi City Code: 90AO001.wtr 7 a. Condition I - drought possibility - Water Systems shall reduce its average raw water consumption by 10%. b. Condition II - drought watch - Water Systems shall reduce its average raw water consumption by 30%. c. Condition III - drought warning - Water Systems shall reduce its average raw water consumption by 75%. d. Condition IV - drought emergency - Water Systems shall cease taking raw water, and shall be released from the fixed minimum obligation. For purposes of calculating the "average raw water consumption," that term is defined as the amount of water used per month averaged over the previous three years. B. To the extent that the Texas Water Commission, Texas Water Development Board, or other regulatory agency requires rationing of water in a manner stricter than that imposed by City, Water Systems will comply with such stricter method of rationing water. 13. Term of Contract. The term of this contract shall be for a period of ten (10) years, after the date of final approval of this agreement, subject to the termination provisions herein contained. 14. Right to Terminate Contract. If after one (1) year from the date of this contract Water Systems has not provided facilities for the taking of water under the terms hereof, City 90AG001.wtr 8 shall have the right to cancel this contract by giving written notice to Water Systems of such intention, or City may, if it sees fit, extend the one (1) year period for any additional period or periods, retaining the right to terminate this contract at the end of any such extended period until such time as Water Systems may complete the first stage of its facilities and begin taking raw water. If Water Systems' need for water from City should cease for a period of at least thirty (30) days then in such event Water Systems may, by giving thirty (30) days written notice to City by registered mail, cancel and terminate this contract in its entirety. If Water Systems should elect to give and actually does give City said written notice, then after the expiration of thirty (30) days from the date said notice is mailed to City as above provided, this contract and all its provisions shall become null and void. If delivery of water to Water Systems exceeds 500,000 gallons per day, under a monthly averaging system, for a period of three months, and City provides written notice by registered mail then on the thirtieth day after said letter from City to Water Systems was mailed this contract shall terminate and all of its provisions shall become null and void. City may terminate this contract upon thirty (30) days prior written notice, by registered mail, to Water Systems upon any default of Water Systems hereunder that is not cured within the period set forth in the notice of default. 90AG001.wtr 9 • 15. Renewal of Contract. The parties recognize that most of the facilities to be installed by Water Systems should have a useful life in excess of the ten year term of this contract and that they will have limited value unless operated for taking water from the water supply of Corpus Christi. Accordingly, upon the written request of Water Systems an extension of the term of this agreement will be negotiated between the parties and extended upon such terms as are agreed upon by the parties at that time, negotiation termination thereof. and from time to time, provided such request for is communicated at least one (1) year prior to the of this agreement, or any renewals or extensions 16. Force Majeure. If the City should be prevented, wholly or in part, from fulfilling its obligations under this contract by reason of any act of God,. unavoidable accident, acts of enemies, strikes, fires, floods, conservation of water for those with superior and legal rights to such water, governmental restraint or regulation, other causes of force majeure, or by reason of circumstances reasonably beyond its control, then the obligations of City to deliver water to Water Systems, as hereinabove provided, shall be temporarily suspended during continuation of such force majeure. No damage shall be recoverable by Water Systems from City by reason of the temporary suspension of delivery of water due to any of the causes above mentioned. If City's obligation should be affected by any of such causes, City shall promptly notify Water Systems in writing, 90AG001.wtr 10 giving full particulars of such force majeure as soon as possible after the occurrence of the cause or causes relied upon. 17. Assignability. This contract may not be assigned by Water Systems without the prior written consent of the governing body of City. 18. Default. It is covenanted and agreed that if either party to this contract shall fail to perform any of the covenants or obligations imposed upon it under and by virtue of this contract, then in such event the other party hereto may at its option terminate this contract by proceeding as follows: The party not in default shall cause a written notice to be served on the party in default stating specifically the cause for terminating this contract and declaring it to the party giving the notice to terminate the party in default shall have thirty (30) days the aforesaid notice in which oto remedy or be the intention of same; thereupon the after the service of remove the cause or causes stated in the notice for terminating the contract, and, if within said period of thirty (30) days the party in default does so remedy or remove said cause or causes and fully indemnify the party not in default for any and all consequences of such breach, then such notice shall be withdrawn and this contract shall continue in full force and effect. In case the party in default does not so remedy or remove the cause or causes or does not indemnify the party giving the notice for any and all consequences of such breach within said period of thirty (30) days, then, at the option of the party giving the notice, this contract shall become null and void from and after the expiration 90AG001.wtr 11 of said period. Any cancellation of this contract pursuant to the provisions of this section shall be without prejudice to the right of either party hereto to collect any amounts then due it from the other party prior to the time of cancellation and without waiver of any remedy to which the party not in default may be entitled for violations of this contract. No waiver by either party hereto of any one or more defaults by the other in the performance of any provisions of this contract shall operate or be construed as a waiver of any future default or defaults, whether of a like or of a different character. 19. Authority to Execute. In order to make this contract fully binding, each of the parties has been duly authorized hereto and in the execution hereof by proper ordinance or resolution of the respective governing body and certified copies furnished by each party to the other party for attachment hereto. 20. All Agreements Contained in this Written Instrument. It is agreed by the parties hereto that this instrument contains in writing all of the agreements between the parties hereto and that nothing (except those things required by law) not incorporated herein or by reference shall be binding on the parties. 21. Addresses City of Corpus Christi ATTN: Water Superintendent P.O. Box 9277 Corpus Christi, TX 78469 Choke Canyon Water Systems ATTN: Rex McCelvey P.O. Box 3 Calliham, TX 78007 90AG001.wtr 12 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed in multiple counterparts, each copy of which so executed shall be considered as an original, by their respected duly authorized representa- tives, this day of , 1990. ATTEST: CITY OF CORPUS CHRISTI Armando Chapa, City Secretary Juan Garza, City Mmanager APPROVED AS TO FORM: HAL GEORGE, CITY ATTORNEY THIS a-( DAY OFL-ftwe.ntkort, 1990 Assistant City Attorn CHOKE CANYON WATER SYSTEMS 90AG001.wtr 13 Corpus Christi, Texas /1 day of CZ/U(LA) , 19 90 TO THE MEMBERS OF THE CITY COUNCIL Corpus Christi, Texas For the reasons set forth in the emergency clause of the foregoing ordinance an emergency exists requiring suspension of the Charter rule as to consideration and voting upon ordinances at three regular meetings; I/we, therefore, request that you suspend said Charter rule and pass this ordinance finally on the date it is introduced, or at the present meeting of the City Council. Respectfully, Council Members Respectfully, YOR THE CITY OF CORPUS CHRISTI The above ordinance was passed by the following vote: Betty N. Turner (2t)C Cezar Galindo Leo Guerrero 4/1./ Tom Hunt Edward A. Martin Joe McComb la/11(-1 Clif Moss Mary Rhodes GP"' Frank Schwing, Jr. 414/ 045 21.047