RESO 1997 - TRA Huntsville Regional Water Supply }
CERTIFICATE FOR
RESOLUTION AUTHORIZING AND DIRECTING THE EXECUTION OF THE TRINITY
RIVER AUTHORITY OF TEXAS - HUNTSVILLE REGIONAL WATER SUPPLY
SYSTEM CONTRACT, AND PROVIDING FOR THE EFFECT OF
SAID RESOLUTION AND CONTRACT
THE STATE OF TEXAS
COUNTY OF WALKER
CITY OF HUNTSVILLE
We, the undersigned, Mayor and City Secretary of the City of
Huntsville, Texas, hereby certify as follows:
1. The City Council of the City of Huntsville convened in
REGULAR MEETING ON THE 24TH DAY OF JUNE, 1997, in the City
Council Chamber in the City Hall, and the roll was called of the
duly constituted officers and members of said City Council, to
wit:
William B. Green, Mayor Dan S. Davis
Ronald L. Lange, Mayor Pro Tem Ann James
David Martinez Dave Luning
Marjorie Rex Vance Howard
JoAnn Thomas Matthews Danna Welter, City Secretary
and all of said persons were present, except the following
absentees:
thus constituting a quorum. Whereupon, among other business, the
following was transacted at said Meeting: a written
RESOLUTION AUTHORIZING AND DIRECTING THE EXECUTION OF THE TRINITY
RIVER AUTHORITY OF TEXAS - HUNTSVILLE REGIONAL WATER SUPPLY
SYSTEM CONTRACT, AND PROVIDING FOR THE EFFECT OF
SAID RESOLUTION AND CONTRACT
was duly introduced for the consideration of said City Council
and duly read. It was then duly moved and seconded that said
Resolution be adopted; and, after due discussion, said motion,
carrying with it the adoption of said Resolution, prevailed and
carried by the following record vote:
AYES:
NOES: D
ABSTENTIONS:
That a true, full, and correct copy of the aforesaid
Resolution adopted at the Meeting described in the above and
foregoing paragraph is attached to and follows this Certificate;
that said Resolution has been duly recorded in said City
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Council's minutes of said Meeting; that the above and foregoing
paragraph is a true, full, and correct excerpt from said City
Council 's minutes of said Meeting pertaining to the adoption of
said Resolution; that the persons named in the above and
foregoing paragraph are the duly chosen, qualified, and acting
officers and members of said City Council as indicated therein;
and that each of the officers and members of said City Council
was duly and sufficiently notified officially, in advance, of the
time, place, and purpose of the aforesaid Meeting, and that said
Resolution would be introduced and considered for adoption at
said Meeting; and that said Meeting was open to the public, and
public notice of the time, place, and purpose of said Meeting was
given, all as required by Chapter 551, Texas Government Code.
SIGNED AND SEALED the 24th day of June, 1997 .
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_ City Secretary Mayor
City of Huntsville, Texas City of Huntsville, Texas
(CITY SEAL)
I, the undersigned, City Attorney of the City of Huntsville,
Texas, hereby certify that I read and ap roved as to legality the
attached and following Resolution, prior to it adoption.
Ci Att rney
I
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RESOLUTION NO. R-
RESOLUTION AUTHORIZING AND DIRECTING THE EXECUTION OF THE
TRINITY RIVER AUTHORITY OF TEXAS - HUNTSVILLE REGIONAL WATER
SUPPLY SYSTEM CONTRACT, AND PROVIDING FOR THE EFFECT OF
SAID RESOLUTION AND CONTRACT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF HUNTSVILLE:
SECTION I
That, for and on behalf of the City of Huntsville (the
"City") the Mayor of the City is hereby authorized and directed
to sign, deliver, and otherwise execute, and the City Secretary
of the City is hereby authorized and directed to sign, attest,
and seal, the "Trinity River Authority of Texas - Huntsville
Regional Water Supply System Contract" (the "Contract") in
substantially the form and substance attached to this Resolu-
tion and made a part hereof for all purposes.
SECTION 2
That, upon its execution by the parties thereto, the
Contract shall be binding upon the City in accordance with its
terms and provisions.
SECTION 3
That this Resolution shall take effect and be in_ full
force and effect from and after the date of its adoption, and
it is so resolved; and all ordinances and resolutions of the
City in conflict herewith are hereby amended to the extent of
such conflict, and any contracts or agreements authorized
thereby are hereby amended to the extent of such conflict.
RESOLTJTION AND CONTRACT
ATTA EZETO APPROVED
Ci y Attorney
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TRINITY RIVER AUTHORITY OF TEXAS - HUNTSVILLE
REGIONAL WATER SUPPLY SYSTEM CONTRACT
THE STATE OF TEXAS
COUNTY OF WALKER
THIS CONTRACT (hereinafter called "Contract") made and entered
into as of the 25th day of June, 1997, by and between Trinity River
Authority of Texas, a governmental agency and a body politic and
corporate, created by Chapter 518, Acts of the Regular Session of
the 54th Legislature, 1955, as amended, pursuant to Article XVI,
Section 59 of the Constitution of Texas (herein called
"Authority") , and the City of Huntsville, Texas, a municipal
corporation of the State of Texas, acting under the laws of the
State of Texas and its home rule charter (herein called "City") ;
WHEREAS, as of September 28, 1976, the Trinity River Authority
of Texas - City of Huntsville Water Treatment Facilities, Water
Transmission and Clear Well Storage Facilities Contract, as amended
as of December 7, 1983 and November 2, 1995 (collectively, the
"Original Contract") was duly entered into by and between Authority
and City; and
WHEREAS, the Original Contract provided that Authority would,
for the benefit of and to serve City and others, issue its bonds
for the purpose of constructing water treatment facilities,
including raw water intake facilities, a water treatment plant and
metered treated water discharge facilities, water transmission and
clear well storage and pumping facilities, constituting the
Huntsville Regional Water Supply System (the "System") as described
in the Original Contract; and
WHEREAS, pursuant to the Original Contract, Authority duly
issued and delivered its bonds for the purpose of acquiring,
constructing, equipping, completing, improving and extending the
System; and
WHEREAS, Authority and City are authorized to enter into this
Contract by Chapter 791, Texas Government Code, as amended, known
as the Interlocal Cooperation Act; and
WHEREAS, Authority and City deem it to be in their respective
best interests to enter into a new contract relating to all future
projects involving additions, improvements, repairs, replacements,
expansions and extensions of the System, such future projects being
described herein as the "Project" , and that henceforth no further
bonds (other than refunding bonds) shall be issued pursuant to the
Original Contract; and
WHEREAS, the initial project, subject to the terms of this
Contract, is initially described in an engineering report dated May,
1996 prepared by Alan Plummer Associates, Inc. , Consulting Engineers
(the "Initial Project") ; and
WHEREAS, such engineering report, including all amendments and
supplements thereto made prior to the execution of acquisition and
construction contracts for the Initial Project and as changed by
change orders entered after acquisition and construction contracts
for the Initial Project have been executed is hereinafter called the
"Initial Engineering Report" ; and
WHEREAS, the scope of the Initial Project, as described in the
Initial Engineering Report provided for in this Contract, may be
expanded, amended, modified or added to by future engineering
reports (each an "Additional Engineering Report" and, together with
the Initial Engineering Report, shall be collectively referred to
as the "Engineering Report") in any manner agreed to by Authority
and City, with any such expansion, amendment, modification or
addition to the Initial Project (each an "Additional Project" and,
together with the Initial Project, shall be collectively referred
to as the "Project") to be subject to the further terms of this
Contract in all respects.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, Authority agrees to construct the
Project in general accordance with the Engineering Report upon terms
and conditions hereinafter set forth, to wit:
Section 1. DEFINITION OF TERMS. Terms and expressions as used
in this Contract, unless the context clearly shows otherwise, shall
have the following meanings:
A. "Additional Contracting Party" means any party, other than
the Contracting Party, with whom Authority makes a contract for
supplying treated water from the water treatment facilities of the
System or Project, any such Additional Contracting Party being
required to execute a contract with Authority substantially similar
to this Contract.
B. "Adjusted Annual Payment" means the Annual Payment, as
adjusted due to service to Additional Contracting Parties and/or as
required during or after each Fiscal Year.
C. "Annual Payment" means the amount of money to be paid to
Authority by City as its proportionate share of the Annual
Requirement.
D. "Annual Requirement" means the total amount of money
required for Authority to pay all Operation and Maintenance Expense
of the System, to pay the debt service on its Bonds and to pay any
amounts required to be deposited in any special or reserve funds
required to be established and/or maintained by the provisions of
the Bond Resolution.
E. "Bond Resolution" means the resolution or resolutions of
Authority which authorize the Bonds.
F. "Bonds" means the revenue bonds issued by Authority, whether
one or more issues, and the interest coupons appertaining thereto,
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if any, to finance the Project, including the Initial Project and
any Additional Project, and any bonds issued to refund any such
bonds or refunding bonds.
G. "Contracting Party" means the City of Huntsville.
H. "Fiscal Year" means the fiscal year of Authority, which is
December 1 through November 30.
I. "MGD" is an abbreviation for "million gallons of water per
day" and refers to a quantity of water during a period of time
expressed for convenience in terms of an average daily quantity
during a calendar year (unless a different period of time is
specified) . The value of two MGD, for example, is calculated as
follows: Two million gallons multiplied by the number of days in a
calendar year.
J. "Operation and Maintenance Expense" means all costs of
operation and maintenance of the System, including (for greater
certainty but without limiting the generality of the foregoing)
repairs and replacements for which no special fund is created in the
Bond Resolution, the cost of utilities, supervision, engineering,
accounting, auditing, legal services, and any other supplies,
services, administrative costs and equipment necessary for proper
operation and maintenance of the System, and payments made by
Authority in satisfaction of judgments resulting from claims not
covered by Authority's insurance or not paid by either City or an
Additional Contracting Party or Parties arising in connection with
the operation and maintenance of the System. The term also includes
the charges of the bank or banks where the Bonds are payable. The
term does not include the cost of raw water supplies.
Section 2. CONSULTING ENGINEER, CONSTRUCTION OF PROJECT.
Authority and City shall mutually agree upon and designate the
consulting engineers for the Project. Authority will construct the
Project as part of the System in general accordance with the
applicable Engineering Report. It is anticipated that such
construction will be in phases and that each phase will be financed
by Authority through the issuance of its Bonds. A substantial copy
of any proposed Bond Resolution shall be submitted to City for
approval thereof and no Bonds shall be issued by Authority until a
substantial copy of the Bond Resolution authorizing the issuance
thereof has been approved by ordinance or resolution of City;
however, it shall not be required that the price, interest rates or
purchasers of any Bonds be approved by City. City agrees that it
will not unreasonably withhold its approval of any submitted
proposed Bond Resolution.
Section 3 . QUANTITY, QUALITY, POINTS OF DELIVERY, MEASURING
EQUIPMENT, UNIT OF MEASUREMENT AND DELIVERY PRESSURE.
A. QUANTITY OF TREATED WATER. Authority has agreed in the
Original Contract to provide treatment facilities which will enable
Authority to deliver City an annual average daily amount of 4 . 0 MGD
with a 100% peaking capability, and Authority will use its best
efforts to enlarge the capacity of the System or Project from time
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to time, to remain in position to deliver water sufficient for the
reasonable demands of City, but its obligations in this regard shall
be limited to the amount of water Authority is obligated to sell to
City under a contract dated September 28, 1976, or any amendment
thereof, which contract is adopted by reference, and by its
commitments to Additional Contracting Parties. Provided that
Authority will not obligate to deliver water to Additional
Contracting Parties which will jeopardize Authority's ability to
deliver to City amounts of water from time to time generally in
accordance with the above cited contract unless such obligation has
been approved by a resolution or ordinance of City.
B. QUALITY OF TREATED WATER. The parties recognize that the
source of water to be delivered by Authority to City under this
agreement is from Livingston Reservoir, and must be chemically
treated and filtered. The water to be delivered by Authority and
received by City shall be potable treated water meeting applicable
purity standards of the Texas Natural Resource Conservation
Commission and, where feasible, the U.S. Environmental Protection
Agency Standards with the additional requirements that hardness
shall be not greater than 140 ppm, calcium carbonate stability shall
be within . 3 plus or minus of the stability point as calculated by
the Langelier Index method, and a residual chlorine of not less than
0. 5 ppm at the Point or Points of Delivery. City has satisfied
itself that such water will be suitable for its needs.
C. POINTS OF DELIVERY. The initial point of delivery under the
Original Contract is located at the treatment plant constructed
pursuant thereto by Authority for discharge into the transmission
facilities as provided in the engineering report described in the
Original Contract. A different or additional point or points of
delivery may be agreed upon by the parties hereto as circumstances
may require.
D. MEASURING EQUIPMENT. (a) Pursuant to the Original Contract,
Authority has furnished and installed and is operating and
maintaining the necessary metering equipment of standard type for
measuring properly the quantity of water delivered under the
Original Contract. Such metering equipment is located at points
designated by Authority in accordance with the engineering report
referred to in the Original Contract. Such meters and other
equipment so installed shall remain the property of Authority.
Additional metering equipment may be installed upon mutual agreement
of Authority and City in accordance with an Additional Engineering
Report. City shall have access to such metering equipment at all
reasonable times, to inspect and to employ an independent laboratory
to check metering equipment, but the reading, calibration and
adjustment thereof shall be done only by the employees or agents of
Authority. For the purpose of this Contract, the original record
or reading of a meter shall be the journal or other record book of
Authority in its office in which the records of the employees or
agents of Authority who take the reading are or may be transcribed.
Upon written request of CitY. Authority will give City a copy of
such journal or record book, or permit City to have access to the
same in the office of Authority during reasonable business hours.
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(b) Not more than once in each calendar year, on a date as
near the end of such calendar year as practical, Authority shall
calibrate its meter or meters, if requested in writing by City to
do so, in the presence of a representative of City, and the parties
shall jointly observe any adjustments which are made to the meter
in case any adjustments shall be necessary, and if the check meter
hereinafter provided for has been installed, the same shall also be
calibrated by City in the presence of a representative of Authority
and the parties shall jointly observe any adjustment in case any
adjustment is necessary. If City shall in writing request Authority
to calibrate its meters and Authority shall give City written notice
of the time when any such calibration is to be made and a
representative of City is not present at the time set, Authority may
proceed with calibration and adjustment in the absence of any
representative of City.
(c) If either party at any time observes a variation between
a delivery meter and the check meter, if any such check meter shall
be installed, such party will promptly notify the other party, and
_the parties hereto shall then cooperate to procure an immediate
calibration test and joint observation of any adjustment and the
meter shall then be adjusted to accuracy. Each party shall give the
other party forty-eight (48) hours' notice of the time of any test
of meter so that the other party may conveniently have a
representative present.
(d) If, upon any test, the percentage of inaccuracy of
metering equipment is found to be in excess of two percent (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 (1/2) of the time elapsed since the
last date of calibration, but in no event farther back than a period
of six (6) months. If, for any reason, the meter is 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, through the period such meter is out of service or out
of repair, shall be estimated and agreed upon by the parties thereto
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 if the same has been installed and is accurately
__registering. Otherwise, the best data available shall be deemed any
other meters in the transmission line or treatment plant which can
be related to the delivery meter. If no other meters in the system
are operational which will allow determination of delivered
quantity, then the amount of water delivered during such period may
be estimated (i) by correcting the error if the percentage of error
is ascertainable by calibration tests or mathematical calculation,
or (ii) by estimating the quantity of delivery by deliveries during
the preceding periods under similar conditions when the meter was
registering accurately.
(e) City may, at its option and its own expense, install and
operate a check meter to check the meter installed by Authority, but
the measurement of water for the purpose of this Contract shall be
solely by Authority's meter, except in the cases hereinabove
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specifically provided to the contrary. Such check meter shall be of
standard make and shall be subject at all reasonable times to
inspection and examination by any employee or agent of Authority,
but the reading, calibration and adjustment thereof shall be made
only by City, except during any period when a 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 made by Authority with like effect as if such check
meter had been furnished or installed by Authority.
E. UNIT OF MEASUREMENT. The unit of measurement for water
delivered hereunder shall be 1,000 gallons of water, U. S. Standard
Liquid Measure.
F. DELIVERY PRESSURE. Pursuant to the Original Contract and
this Contract, water shall be delivered by Authority at the point(s)
of delivery at a pressure sufficient to transmit the water into the
clear well storage facilities or as otherwise described as part of
the System or Project.
Section 4 . FISCAL PROVISIONS.
A. FINANCING THE PROJECT. Authority will use its best efforts
to pay for the cost of construction of the Project as part of the
System through the issuance of its Bonds in amounts necessary which,
together with other available funds, if any, will be sufficient to
accomplish such construction.
B. ANNUAL REQUIREMENT. It is acknowledged and agreed that
payments to be made under this Contract and similar contracts with
Additional Contracting Parties will be the only source available to
Authority to provide the Annual Requirement; and that Authority has
a statutory duty to establish and from time to time to revise the
charges for services to be rendered and made available to City
hereunder so that the Annual Requirement shall at all times be not
less than an amount sufficient to pay or provide for the payment of:
(a) all Operation and Maintenance Expense;
(b) the principal of and the interest on the Bonds,
as such principal and interest become due, less interest
to be paid out of Bond proceeds as permitted by the Bond
Resolution;
(c) during each Fiscal Year, the proportionate part
of any special or reserve funds required to be
established and/or maintained by the provisions of the
Bond Resolution; and
(d) an amount in addition thereto sufficient to
restore any deficiency in any of such funds or accounts
required to be accumulated and maintained by the
provisions of the Bond Resolution.
C. PAYMENTS BY CITY FOR SERVICES. (a) For services to be
rendered to City by Authority hereunder, City agrees to pay, at the
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time and in the manner herein provided, its proportionate share of
the Annual Requirement, which shall be determined as follows and
shall constitute City's Annual Payment:
(i) For the Fiscal Year or fraction thereof during
which the Project initially begins operations, City's
proportionate share of the Annual Requirement shall be a
percentage obtained by dividing City's estimated annual
treated water requirement by the total estimated volume
to be treated and used by City and all Additional
Contracting Parties.
City's Annual Payment shall be made to Authority in twelve
equal monthly installments. In the event Authority is unable to
offer service under this Contract to City for the complete initial
Fiscal Year, the portion of City's Annual Payment attributable to
operation and Maintenance Expense shall be reduced to the prorata
portion of the Fiscal Year for which service is provided. Such
payments shall be made in accordance with and at the times set forth
in a Schedule of Payments for such initial Fiscal Year, which will
be supplied to City. At the close of such initial Fiscal Year,
Authority shall determine City's percentage by dividing City's
actual metered usage by the total actual metered usage of the System
by City and all Additional Contracting Parties. City's Adjusted
Annual Payment shall be calculated by multiplying City's
redetermined percentage times the Annual Requirement. The difference
between the Adjusted Annual Payment and the Annual Payment, if any,
when determined, shall be applied as a credit or a debit to City's
account with Authority and shall be credited or debited to City's
next subsequent monthly statement or statements.
(ii) For each succeeding Fiscal Year thereafter,
City's proportionate share of the Annual Requirement
shall be a percentage obtained by dividing City's
estimated treated water requirement for such year by the
total estimated treated water requirement of City and all
Additional Contracting Parties for such year. Calculation
of Annual Payment and Adjusted Annual Payment for each
succeeding Fiscal Year thereafter shall be determined in
the manner described in (i) above.
(b) If, during any Fiscal Year, Authority begins providing
services to an Additional Contracting Party or Parties, City's
Annual Payment for such Fiscal Year shall be determined in the
following manner:
(i) Such Additional Contracting Party or Parties
estimated treated water requirement for such year, or
portion thereof, shall be determined by Authority;
(ii) City's proportionate share of the Annual
Requirement shall be a percentage, redetermined by
dividing City' s estimated treated water requirement by
the total annual estimated treated water requirement by
City and all Additional Contracting Parties, including
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that estimated for the new Additional Contracting Party
or Parties for the remaining portion of such Fiscal Year;
(iii) Authority shall redetermine the Annual
Requirement, taking into consideration any costs incurred
on account of the new Additional Contracting Party or
Parties;
(iv) City's Annual Payment shall be redetermined by
multiplying City's redetermined percentage times the
redetermined Annual Requirement;
(v) Following the first Fiscal Year or part thereof
of service to a new Additional Contracting Party, City's
Annual Payment shall be determined annually in the manner
set forth above, incorporating the new Additional
Contracting Party in the calculations on the same basis
as all parties being served by the System.
(c) City's Annual Payment shall also be redetermined, in the
manner set out above, at any time during any Fiscal Year if:
(i) Additions, enlargements or improvements to the
Project are constructed by Authority to provide
continuing service which in turn requires a
redetermination of the Annual Requirement; or
(ii) Unusual or extraordinary expenditures for
maintenance and operation are required which are not
provided for in the Annual Budget or in the Bond
Resolution.
(d) Provided, that in determining City's proportionate share
of the Annual Requirement, City' s estimated treated water
requirement and actual metered usage for any Fiscal Year shall never
be considered to be less than that portion of the Project
constructed for the exclusive requirements of the City, in
accordance with Section 3 .A. of the Original Contract.
(e) On or before July 1 of each year Authority shall furnish
City with a tentative schedule of the monthly payments to be made
by City to Authority for the ensuing Fiscal Year. On or before
November 1 of each year, Authority shall furnish City with a final
schedule of the monthly payments to be made by City to Authority for
the ensuing Fiscal Year, together with supporting budgetary or
proposed budgetary data showing the basis for arriving at such
schedule. City hereby agrees that it will make such payments to
Authority on or before the 10th day of each month of such Fiscal
Year. If City at any time disputes the amount to be paid by it to
Authority, City shall nevertheless promptly make the payment or
payments previously approved for the immediately preceding budget
period, provided that such payment shall never be less than City's
proportionate share of (b) , (c) and (d) of subsection B above, and,
if it is subsequently determined by agreement, arbitration or court
decision that such disputed payments made by City should have been
less, or more, Authority shall promptly revise and reallocate the
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charges among all parties then being served by Authority in such
manner that City will recover its overpayment or Authority will
recover the amount due it.
(f) If City's Annual Payment is redetermined as is herein
provided, Authority will promptly furnish City with an updated
schedule of monthly payments reflecting such redetermination.
(g) As additional consideration for the payments provided for
above, City shall have an exclusive right to the use of the
transmission and clear well storage facilities described in the
engineering report incorporated into the Original Contract.
Further, City shall have the right to tap said facilities, if need
be, to serve water customers of City. The rights herein granted
shall be for the useful life of said facilities, as determined by
City. Provided, when the debt service requirements of Authority
attributable to said transmission and clear well storage facilities
have been finally paid, City shall have the rights granted herein
without payment of any fees or charges to Authority, except for any
_actual costs to Authority attributable to ownership of said
facilities which Authority is required to pay.
Section 5. SPECIAL PROVISIONS.
A. Authority will proceed to finance and construct the Project
in accordance with the Engineering Report without unreasonable
delay.
B. Title to any water supplied hereunder shall remain in
Authority through the Point(s) of Delivery, and upon passing through
the Point(s) of Delivery, such title to the water shall pass to
City. Each of the parties hereto agrees to save and hold the other
party harmless from all claims, demands and causes of action which
may be asserted by anyone on account of the transportation and
delivery of said water while title remains in such party.
C. It is expressly understood and agreed that any obligations
on the part of Authority to construct or complete the Project and
to provide water to City shall be (i) conditioned upon Authority's
ability to obtain all necessary material, labor and equipment and
upon the ability of Authority to finance the cost of the Project
through the actual sale of Authority's Bonds and (ii) subject to all
present and future valid laws, orders, rules and regulations of the
United States of America, the State of Texas, and any regulatory
body having jurisdiction (and the parties agree to cooperate to
obtain compliancy therewith) .
D. Authority shall never have the right to demand payment by
City of any obligations assumed by it or imposed on it under and by
virtue of this Contract from funds raised or to be raised by taxes
levied by City. City's obligations under this Contract shall never
be construed to be a debt of City of such kind as to require it
under the law of this State to levy and collect a tax to discharge
such obligation, it being expressly understood by the parties hereto
that all payments due by City hereunder are to be made from water
and sewer revenues received by City.
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E. City represents and covenants that all payments to be made
hereunder by it shall constitute "Operating Expenses" of its
waterworks and sewer system as defined in Article 1113 of the
Revised Civil Statutes of Texas, as amended, and that all such
payments will constitute operating expenses of City's waterworks and
sewer system.
F. City agrees to fix and collect such rates and charges for
water and sewer services to be supplied by its waterworks and sewer
system as will produce revenues in an amount equal to at least the
minimum payments due under this Contract and to comply with
provisions of ordinances authorizing its outstanding revenue bonds.
G. It is agreed and understood by the parties to this Contract
that City now owns and operates a system of wells producing water
and City may elect to acquire and operate additional wells. While
nothing in this Contract shall obligate City to continue the
operation of its own wells, nevertheless City agrees that so long
as it does operate such wells, it will coordinate production from
its own wells in such manner as to minimize large daily fluctuations
in any quantity of water taken under this Contract.
H. Authority agrees to maintain with responsible insurers,
authorized to do business in Texas, to provide against loss of or
damage to the Project, loss of revenues and public or other
liability to protect the interests of Authority and City, the
following types of insurance, with such variations as shall
reasonably be required to conform to applicable standard or
customary insurance premiums:
TYPE OF COVERAGE DETAILS OF COVERAGE
FAITHFUL PERFORMANCE BLANKET BOND Provides coverage for loss
caused the insured through
failure of any employee,
acting alone or in
collusion with others, to
perform faithfully his
duties or to account
properly for all monies
and property received by
virtue of his position or
employment; $100, 000 for
the General Manager and
Secretary-Treasurer and
$25, 000 for each employee.
EMPLOYERS LIABILITY Provides coverage to a
maximum of $100, 000 for
injury to an employee,
including death resulting
therefrom, while employed
by the insured. United
States Longshoreman's and
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Harbor Worker's Compensa-
tion Act Endorsements are
specifically included.
COMPREHENSIVE AUTOMOBILE Provides coverage with
limits of $100, 000 per
person, $300, 000 per
occurrence, bodily injury
and $50, 000 property
damage arising out of
ownership, maintenance or
use, including loading or
unloading, of any automo-
bile, owned, hired, or
operated by other persons
in behalf of the insured.
Medical Payments insurance
in the amount of $5, 000 is
provided for the passenger
automobiles.
PROPERTY DAMAGE Provides coverage for
Fire, Lightning, Extended
Coverage, and Vandalism
and Malicious Mischief to
a limit of $1, 000, 000 on
the Project.
GENERAL LIABILITY Provides General Liability
and Contractual Liability
coverage with the
following limits:
Bodily Injury-$100, 000/
person, $300, 000/occur-
rence, and $300, 000
aggregate.
Property Damage -
$100, 000/occurrence and
$100, 000 aggregate.
Authority may maintain such insurance under a blanket policy
or policies insuring Authority's property and interest at other
locations. In the event Authority is sued or is placed on notice of
demand for payment of a claim or claims not covered by Authority's
insurance or claims not paid by either City or an Additional
Contracting Party or Parties arising in connection with the
operation and maintenance of the Project, then in any of said
events, Authority shall forthwith notify City in writing as to the
nature of the claim or litigation which could result in an increase
in operation and maintenance expense. City shall have ten (10) days
from receipt of such written notification in which to advise and
comment to Authority concerning any claim, suit or demand for
payment and Authority shall duly consider City's advice and
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comments in any final disposition of said claim or demand for
payment.
I. The transmission and clear well storage facilities
described in Chapter IV of the initial engineering report described
in the Original Contract shall be maintained and operated by City
at its expense, and City covenants that it will operate and
maintain said facilities. City agrees that it will save and hold
harmless Authority from all claims, demands and causes of action
which may be asserted by anyone on account of Authority's ownership
of said transmission and clear well storage facilities so long as
City is operating and maintaining said facilities.
Section 6. FORCE MAJEURE. If by reason of force majeure
either party hereto shall be rendered unable wholly or in part to
carry out its obligations under this Contract, other than the
obligation of City to make the payments required under subsection
4(B) (b) -(d) of this Contract, then if such party shall give notice
and full particulars of such force majeure in writing to the other
party within a reasonable time after occurrence of the event or
cause relied on, the obligation of the party giving such notice, so
far as it is affected by such force majeure, shall be suspended
during the continuance of the inability then claimed, but for no
longer period, and any such party shall endeavor to remove or
overcome such inability with all reasonable dispatch. 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 or the
State of Texas or any Civil or military authority, insurrection,
riots, epidemics, landslides, lightning, earthquake, fires,
hurricanes, storms, floods, washouts, droughts, arrests, restraint
of government and people, civil disturbances, explosions, breakage
or accidents to machinery, pipelines or canals, partial or entire
failure of water supply, and inability on part of Authority to
deliver water hereunder for any reason, or City to receive water
hereunder for any reason, or on account of any other causes not
reasonably within the control of the party claiming such inability.
Section 7. UNCONDITIONAL OBLIGATION TO PAY DEBT SERVICE.
Recognizing that Authority will use payments received by City and
others to pay, secure and finance the issuance of the Bonds, it is
hereby agreed that upon the issuance and sale of any Bonds by
Authority to provide funds for the Project, City shall be
unconditionally obligated to pay its proportionate share of the
debt service on such Bonds, regardless of whether or not Authority
is actually delivering water to City hereunder, or whether or not
City actually takes water hereunder, whether due to Force Majeure
or otherwise. Under such circumstances, the amount due to Authority
from City shall be a percentage of the debt service on the Bonds
for the period of any such failure of service hereunder. Such
percentage shall be the last percentage used by Authority in
determining City's Annual Payment prior to any such failure of
service, and, in the event service is not begun hereunder, such
percentage shall be that specified in Section 4C(a) (i) hereof.
This covenant by City shall be for the benefit of the owners of the
Bonds.
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Section 8. TERM OF CONTRACT; MODIFICATION; NOTICES; STATE OR
FEDERAL LAWS, RULES, ORDERS OR REGULATIONS.
A. TERM OF CONTRACT. This Contract shall be effective upon
execution hereof and shall continue in force and effect until all
Bonds have been paid and for so long thereafter as the parties
hereto may agree by amendment hereof.
B. MODIFICATION. No change or modification of this Contract
shall be made which will affect adversely the prompt payment when
due of all moneys required to be paid by City under the terms of
this Contract and no such change shall be effective which would
cause a violation of any provisions of any Bond Resolution.
C. ADDRESSES AND NOTICE. Unless otherwise provided herein,
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
herein, from and after the expiration of three 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 purposes
of notice, the addresses of the parties shall, until changes as
hereinafter provided, be as follows:
If to Authority, to:
Trinity River Authority of Texas
P. O. Box 60 (76004)
5300 South Collins (76018)
Arlington, Texas
If to City, to:
City of Huntsville
1212 Avenue M
Huntsville, Texas 77340
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.
D. STATE OR FEDERAL LAWS, RULES, ORDERS OR REGULATIONS. This
Contract is subject to all applicable Federal and State laws and
any applicable ordinances, rules, orders and regulations of any
local, state or federal governmental authority having or asserting
jurisdiction, but nothing contained herein shall be construed as a
waiver of any right to question or contest any such law, ordinance,
order, rule or regulation in any forum having jurisdiction.
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Section 9. SEVERABILITY. The parties hereto agree that if any
of the provisions of this Contract should be or be held to be
invalid or to contravene the laws of this State, or the United
States, such fact shall not invalidate the whole agreement, but it
shall be construed as though not containing that particular
provision, and the rights and obligations of the parties shall be
construed and remain in force accordingly.
Section 10. CONTINUED SERVICE. The parties hereto agree that
upon the expiration of this Contract that City shall have the right
to continued service for an additional period of fifty (50) years,
or for such other time as may be agreed, upon execution of an
appropriate agreement between City and Authority.
Section 11. REMEDIES UPON DEFAULT. It is not intended hereby
to specify (and this Contract shall not be considered as
specifying) an exclusive remedy for any default, but all such other
remedies (other than termination) existing at law or in equity may
be availed of by either party hereto and shall be cumulative.
. Recognizing, however, that Authority's undertaking to provide and
maintain a supply of water hereunder is an obligation, failure in
the performance of which cannot be adequately compensated in money
damages alone, Authority agrees, in the event of any default on its
part, that City shall have available to it the equitable remedy of
specific performance in addition to any other legal or equitable
remedies ) may(other than termination which also be available to
Y
City. Recognizing that failure in the performance of any of City's
obligations hereunder could not be adequately compensated in money
damages alone, City agrees in the event of any default on its part
that Authority shall have available to it the equitable remedy of
specific performance in addition to any other legal or equitable
remedies (other than termination) which may also be available to
Authority. Notwithstanding anything to the contrary contained in
this Contract, any right or remedy or any default hereunder, except
the right of Authority to receive the Annual Payment which shall
never be determined to be waived, shall be deemed to be
conclusively waived unless asserted by a proper proceeding at law
or in equity within two (2) years after the occurrence of such
default. No waiver or waivers of any breach or default (or any
breaches or defaults) by either party hereto of any term, covenant,
condition, or liability hereunder or of performance by the other
party of any duty or obligation hereunder shall be deemed a waiver
thereof in the future, nor shall any such waiver or waivers be
deemed or construed to be waiver of subsequent breaches or defaults
of any kind, character or description, under any circumstances.
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IN WITNESS WHEREOF, the parties hereto acting under authority
of their respective governing bodies have caused this Contract to
be duly executed in several counterparts, each of which shall
constitute an original, all as of the day and year first above
written.
TRINITY RIVER AUTHORITY OF TEXAS
BY
DANNY F. VANCE, General Manager
ATTEST:
JAMES LEE MURPHY, Secretary
(AUTHORITY SEAL)
CITY OF HUNTSVILLE, TEXAS
BY
Mayor
ATTEST:
City Secretary
(CITY SEAL)
APPROVED AS TO LEGALITY:
City Attorney