R-94-01-27-9A - 1/27/1994R
RESOLUTION NO. - % 11 - 0/ - 2 7- cii ?
WHEREAS, the Texas Natural Resource Conservation Commission
("TNRCC") has determined that Tal/Tex Inc.'s ("Tal/Tex") wells must be
closed due to contamination by petroleum hydrocarbons from a tank
owned by the Southland Corporation, and
WHEREAS, City owns and operates a potable water supply system,
and
WHEREAS, City is authorized to provide water service outside its
corporate limits, and
WHEREAS, Tal/Tex's service area is located outside the corporate
limits and extraterritorial jurisdiction of City, and
WHEREAS, CITY and Tal/Tex agree that an emergency situation has
occurred because of the contamination of Tal/Tex's water supply, and
WHEREAS, Tal/Tex desires to purchase temporary wholesale water
service during its emergency need for water, and
WHEREAS, City desires to provide emergency wholesale water to
Tal/Tex, and
WHEREAS, City and Tal/Tex are desirous of setting forth in a
written agreement the terms and conditions to govern the provision of
emergency temporary wholesale water service to Tal/Tex, and
WHEREAS, the CITY and Tal/Tex are authorized to execute this
Agreement by §402.014 of the Texas Local Government Code, Now
Therefore,
KS/RESOLUTION
RSOI 274A
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,
TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City an agreement with Tal/Tex for emergency temporary
wholesale water service to Tal/Tex, a copy of said agreement being
attached hereto and incorporated herein for all purposes.
RESOLVED this 27th day of January, 1994.
ATTEST:
(0
J NNE LAND, City Secretary
2.
CHARLES CULPPA', Mayor
City of Round Rock, Texas
01/25/94 16:21 ROUND ROCK PUELIC WORKS -* 512 255 6676
DATE: January 25, 1994
SUBJECT: City Council Meeting, January 27, 1994
-N0.391 PO2
ITEM: 9A. Consider a resolution authorizing the Mayor to sign an
emergency water supply agreement with TAL-Tex, Inc.
(Withdrawn 12/23/93; 1/13/94)
STAFF RESOURCE PERSON: Jim Nuse
STAFF RECOMMENDATION:
In order to have an agreement regarding provision of water service to Tal -Tex, a contract
outlining the requirements has been prepared. Tal -Tex has signed the agreement. A
presentation will be made at the Council meeting.
EXECUTED
DOCUMENT
FOLLOWS
EMERGENCY WATER SUPPLY AGREEMENT
BETWEEN THE CITY OF ROUND ROCK, TEXAS
AND TAL/TEX INC.
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
KNOW ALL MEN BY THESE PRESENTS:
This Emergency Water Supply Agreement ("Agreement") is made
and entered into as of the 1 - day of 1tUwu. 1994 by and between
the City of Round Rock, Texas ("City"), a home rule city located in
Williamson County, Texas and Tal/Tex Inc. ("Tal/Tex"), a
corporation organized and operated under the laws of the State of
Texas.
RECITALS
Whereas, the Texas Natural Resource Conservation Commission
("TNRCC") has determined that Tal/Tex's wells must be closed due to
contamination by petroleum hydrocarbons from a tank owned by the
Southland Corporation ("Southland"), and
Whereas, City owns and operates a potable water supply system,
and
Whereas, City is authorized to provide water service outside
its corporate limits, and
Whereas, Tal/Tex's service area is located outside the
corporate limits and extraterritorial jurisdiction of City, and
Whereas, City and Tal/Tex agree that an emergency situation
has occurred because of the contamination of Tal/Tex's water
supply, and
CwWPDOCS
TALTEX4
Whereas, Tal/Tex desires to purchase temporary wholesale water
service during its emergency need for water, and
Whereas, City desires to provide emergency wholesale water to
Tal/Tex, and
Whereas, City and Tal/Tex are desirous of setting forth in a
written agreement the terms and conditions to govern the provision
of emergency temporary wholesale water service to Tal/Tex, and
Whereas, the City and Tal/Tex are authorized to execute this
Agreement by §402.014 of the Texas Local Government Code:
NOW THEREFORE, for and in consideration of the premises and
mutual obligations and benefits herein contained, City and Tal/Tex
hereby agree as follows:
ARTICLE I
DEFINITIONS
The terms and expressions used in this Agreement, unless the
context indicates otherwise, shall have meanings as follows:
1.01 "Agreement" means this Emergency Water Supply
Agreement.
1.02 "Point of Delivery" means the location(s) at which
water passes through a master meter and thereafter
is owned and controlled by Tal/Tex.
1.03 "Water" means potable water suitable for use for
domestic and municipal uses and meeting the
requirements of the TNRCC for public consumption.
ARTICLE II
WATER SERVICE
2.01. Water Service. City shall deliver and sell water on
an emergency temporary basis to Tal/Tex for domestic use, to be
supplied from City's water treatment and distribution system. City
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presently has and will maintain an adequate water supply with which
to meet Tal/Tex's current emergency need for water. The supply of
water to Tal/Tex may be reasonably limited by City on the same
basis and to the same extent as the supply of water to the other
customers within City. Tal/Tex shall require compliance with City's
water conservation ordinances, as amended from time to time. The
quantity of water service delivered by City shall be measured by
the existing master meter at the Point of Delivery to Tal\Tex's
water system.
2.02. Water Rates. The rate to be charged to and paid by
Tal/Tex for water actually delivered pursuant to this Agreement
shall be set by ordinance as amended from time to time by the Round
Rock City Council. Said rates shall be reasonable as that term is
used in §12.013 of the Texas Water Code. The volumetric water rate
for Tal/Tex on the effective date of this Agreement is $1.03 per
1,000 gallons. The monthly demand charge on the effective date of
this Agreement is $5,560.00 per month. These rates will remain in
effect until at least September 30, 1994, but thereafter may be
adjusted from time to time in the same manner as rates are
adjusted for other wholesale customers of City.
2.03. Metering Equipment. Tal/Tex at its sole expense
shall maintain at the Point of Delivery the existing metering
equipment and required devices of standard type to measure properly
the quantity of water delivered to Tal/Tex. Tal/Tex at its cost
shall calibrate once every twelve (12) months the metering
equipment at the Point of Delivery, provided, however, the cost of
3
calibrating the metering equipment shall be borne by City if
requested more frequently than once every twelve (12) months and
the meter is not more than three percent (3%) inaccurate. Tal/Tex
shall notify City at least three (3) days prior to any such
calibrations and City shall have the right to have a representative
present during such calibrations. A meter registering not more that
three percent (3%) above or below the test result shall be deemed
to be accurate. The previous readings of any meter disclosed by
test to be inaccurate and the statement of charges for water
delivered to Tal/Tex shall be corrected for the three (3) months
previous to such test in accordance with the percentage of accuracy
found by such test. If the meter fails to register for any period,
the amount of water furnished during such period shall be deemed to
be the amount of water delivered in the corresponding period
immediately prior to the failure adjusting for seasonal
differences, unless City and Tal/Tex shall agree upon a different
amount.
2.04. Removal of Meter. Upon termination of this Agreement
pursuant to Article VI, infra, City at its own expense will remove
the meter at the Point of Delivery.
2.05. Consumption Record. City shall keep accurate records
of all readings from the meter(s) installed pursuant to Section
2.03, supra. The records shall be subject to inspection by Tal/Tex
at reasonable times and places.
2.06. Billing. Tal/Tex shall be billed monthly, and
payments shall be due as required by City's policies for its other
4
customers as provided in §10.203 Round Rock City Code (1990
Edition), as amended. Tal/Tex shall accompany the monthly payment
to City with an update on the status of the emergency situation.
This update shall include the status of the contamination of its
wells and Tal/Tex's efforts to procure other water service from
another water supplier.
2.07. Point of Delivery. The initial Point of Delivery
will be that Point of Delivery currently in existence on the
effective date of this Agreement and which is at the discharge side
of said meter. Upon passing through the meter at the Point of
Delivery, the water becomes the property of Tal/Tex.
2.08. Contracts with Other Customers. City reserves the
right to contract with other persons, natural or corporate, private
or public, and to perform services similar to those performed under
this Agreement as well as other services; however„ City shall
make no other contract for service to such other persons or
entities within Tal/Tex 's boundaries without Tal\Tex's consent.
ARTICLE III
OTHER RIGHTS AND OBLIGATIONS OF TAL/TEX
3.01. Payment of Rate Charge. Upon receipt of the itemized
statement of the amount of water determined to be delivered to
Tal/Tex and the charges thereof, Tal/Tex shall pay the amount due
on or before the due date listed.
3.02. Resale of Water. Tal/Tex is expressly authorized to
resell the water delivered hereunder to retail customers, who shall
be residential users. Tal/Tex shall not sell or deliver water to
5
any party other than Tal/Tex's customers without prior approval of
City.
ARTICLE IV
RESERVED WATER
4.01. No Reservations. Tal/Tex acknowledges and agrees
that it is not reserving a guaranteed supply of water to meet
current or future needs. City has an adequate supply of water to
satisfy the reasonable requirements of its current population,
other contractual obligations, and the current customers of
Tal/Tex.
ARTICLE V
COMPLIANCES
5.01. Tal/Tex agrees to comply with the following
requirements:
5.01.1 Rates and Fees. Tal/Tex shall not be delinquent in
the payment of water charges and fees to the City.
5.01.2 Inspection. Tal/Tex shall permit personnel of City
to conduct periodic inspections of Tal/Tex's system.
5.01.3 Sanitary Control Agreement. Tal/Tex shall permit
personnel of City to enter upon the property of any
and all of Tal/Tex's customers for the purpose of
inspecting any and all connections made by such
customers to Tal/Tex water lines. Should City have
reasonable grounds to believe that any condition
exists which might result in contamination of
City's water supply, or jeopardize City's
6
certification by the TNRCC, City shall notify
Tal/Tex and Tal/Tex shall immediately correct any
such condition.
5.01.4 Compliance with Regulations. Tal/Tex shall operate
its system in compliance with all regulations of
City, the TNRCC, and the Federal Environmental
Protection Agency.
5.01.5 Quality Maintenance. Tal/Tex shall maintain the
quality of water beyond the Point of Delivery and
provide necessary chlorination or other treatment
so as to maintain the quality of water throughout
Tal/Tex's service area, and Tal/Tex agrees to
submit samples of such water in accordance with the
requirements of the TNRCC.
ARTICLE VI
TERM OF AGREEMENT
This Agreement shall terminate on (1) December 31, 1995, (2) when
Tal/Tex procures another water supplier with sufficient capacity to
serve all of Tal\Tex's customers, or (3) when Tal/Tex's wells are
determined to be safe for production and such wells are finally
approved for use by the TNRCC, with sufficient capacity to serve
all of Tal\Tex's customers, whichever occurs first. In the event
this Agreement is terminated prior to December 31, 1995 because of
item (3) above, and Tal/Tex's wells suffer further contamination by
petroleum hydrocarbons originating from the current Southland
spill, this Agreement shall revive for the remainder of the term
7
through December 31, 1995, subject to early termination because of
item (2) above. If not terminated sooner, this Agreement shall
automatically terminate on December 31, 1995 and no extensions are
presently contemplated. It is the understanding of City and Tal/Tex
that this Agreement is for temporary emergency wholesale water
service. If Tal/Tex procures another permanent water supplier prior
to December 31, 1995, Tal/Tex must notify City of the date the new
water source will go on line, and this Agreement will terminate on
said date.
ARTICLE VII
FORCE MAJEURE
Neither party shall be liable to the other party or any user
of the water service for the failure of either party to perform its
obligations herein where the failure results from force majeure.
The term "force majeure" as employed herein, shall mean acts of
God, strikes, lockouts, or other industrial disturbances, acts of
public enemy, orders of any kind of the government of the United
States of the State of Texas or any civil or military authority,
insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, hurricanes, storms, floods, washouts, droughts,
arrests, restraint of government and people, civil disturbances, or
explosions. It is understood and agreed that the settlement of
strikes and lockouts shall be entirely within the discretion of
that party and that the requirement that any force majeure shall be
remedied with all reasonable dispatch shall not require the
settlement of strikes and lockouts by acceding to the demands of
8
the opposing party or parties when such settlement is favorable in
the judgment of such party.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.01. Waiver. No failure on the part of either party to
this Agreement to require performance by the other party of any
portion of this Agreement shall in any way affect either party's
right to enforce such provision, nor shall any waiver by either
party be taken or held to be a waiver of any other provisions. No
rights under this Agreement may be waived and no modification or
amendment to this Agreement may be made except by written amendment
by the parties.
8.02. Termination. If either party to this Agreement shall
default in the performance of any of the terms or conditions of
this Agreement, the defaulting party shall have thirty (30) days
after delivery to it of written notice of such default within which
to cure such default. If the defaulting party fails to cure its
default within such period of time, then the non-defaulting party
shall have the right without further notice to terminate this
Agreement.
8.03. Regulatory Agencies. This Agreement shall be subject
to all valid rules, regulations, and laws applicable thereto,
passed or promulgated by the United States of America, the State of
Texas, or any governmental body or agency having lawful
jurisdiction. Tal/Tex and City shall comply with all applicable
statutes, rules and regulations as may now exist or as may be
9
promulgated by the State of Texas and its administrative agencies
and the United States of America and its administrative agencies.
8.04. Headings. All headings in this Agreement have been
inserted for convenient reference only and shall not in any manner
be construed as modifying, amending, or affecting in any way the
express terms and provisions hereof.
8.05. Indemnification. Tal/Tex agrees to indemnify and
hold City harmless from any claims which are made against the City
which arise as a result of Tal/Tex's negligence in the operation of
Tal/Tex's Water System.
8.06. Addresses and Notice. Unless otherwise provided in
this Agreement, any notice, communication, request, reply, or
advice (herein severally and collectively, for 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 the same in the United States mail
postpaid and registered or certified and addressed to the party to
be notified, with return receipt requested, or by delivering the
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
conclusively deemed to be effective, unless otherwise stated in
this Agreement, from and after the expiration of four (4) days
after it is so deposited. Notice given in any other manner shall be
effective only if and when received by the party to be notified.
For the purpose of Notice, the addresses of the parties shall,
10
until changed as hereinafter provided, be as follows:
If to City to:
City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Attention: City Manager
With copy to:
Stephan L. Sheets
Stephan L. Sheets & Associates, P.C.
309 East Main
Round Rock, Texas 78664
If to Tal/Tex Inc., to:
Terry Tuttle
President of Tal/Tex Inc.
Post Office Box 525
Leander, Texas 78641
With copy to:
Thomas P. Washburn
DeLeon & Boggins, P.C.
221 West 6th Street, Suite 1050
Bank One Tower
Austin, Texas 78701
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 fifteen
(15) days written notice to the other party.
8.07. Venue. This Agreement has been made under and shall
be governed by the laws of the State of Texas. This Agreement shall
be performed in Williamson County, Texas and venue shall lie in a
court of competent jurisdiction in Williamson County, Texas
8.08. Acknowledgment of Entire Agreement. Each party
acknowledges that this instrument expresses the entire Agreement
between the parties concerning the subjects it purports to cover.
This instrument supersedes all other agreements between the
11
parties.
8.09. Severability. The provisions of this Agreement are
severable, and if any provision or part of this Agreement 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 Agreement
and the application of such provision or part of this Agreement to
other persons or circumstances shall be not affected thereby.
8.10. Modification. This Agreement shall be not subject to
change or modification without the express written mutual consent
of the governing bodies of each of the parties hereto.
8.11. Tal/Tex Authorization. The party signing this
Agreement shall provide adequate proof of his authority to execute
this Agreement on behalf of Tal/Tex. This Agreement shall inure to
the benefit and be binding upon Tal/Tex hereto and its respective
successors or assigns, but shall not be assigned without written
consent by City.
8.12. City Authorization. This Agreement and all of its
provisions have been authorized, approved and entered into by City
by virtue of action taken be the City Council pursuant to law and
has been executed by its Mayor, and attested by its Secretary, upon
its authority of a resolution passed at a meeting of the Round Rock
City Council held on the , 1 - day of � 0,111140k , 1994.
8.13. No Recourse. No recourse shall be had against any
elected official, director, officer, attorney, agent or employee of
either the City or Tal/Tex, whether in office as of, or subsequent
12
to, the effective date of this Agreement.
8.14. Time of Essence. Time is of the essence of this
Agreement.
The effective date of this Agreement iso(
ST:kt/x.a..}
N LAND, City Secretary
13
t�v
_ day o
ftIlAALLAkt., 1994.
THE CITY OF ROUND ROCK, TEXAS
221 East Main Street
Round Texas Texas 78664
By:,
"ie
Charles Cul ep , Mayor
TAL/TEX INC.
Post office Box 525
Leander, Texas 78641
By:
Terry Thttle, President