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HomeMy WebLinkAbout1998-233FILE REFERENCE FORM 98-233 X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other Addendum to Contract - Ordinance No. 2003-240 08/19/20031 JR ORDINANCE NO 0 -a3 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MAN- AGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE UPPER TRINITY REGIONAL WATER DISTRICT, AND THE CITY OF LEWISVILLE CONCERNING THE PASS -THROUGH OF WATER FROM COOPER (CHAPMAN) LAKE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF SAID AGREEMENT, PROVIDING CONSIDERATION FOR THE PASS -THROUGH OF SAID WATER AND FOR THE INTERIM AND LONG TERM SALE OF DENTON'S SHARE OF THE COOPER LAKE WATER UNDER CERTAIN CIRCUMSTANCES, AND PROVIDING FOR THE COORDI- NATION OF DAILY USAGE, WATER ACCOUNTING AND AN OPERATING PROTOCOL AND OTHER PROCEDURES SET FORTH IN THE BODY OF SAID AGREEMENT, AND PROVIDING FOR AN EFFECTIVE DATE WHEREAS, the Upper Trinity Regional Water District ("District") entered into a Contract with the City of Commerce, Texas on July 5, 1990 (Commerce Contract) to purchase water out of the Cooper Lake (recently renamed Chapman Lake) in an amount which is approximately 1172 gallons per day on a firm yield basis, and WHEREAS, the City of Denton (Denton), the City of Lewisville (Lewisville) and others entered into a contract (the "Cooper Reservoir Project Contract") with the District on June 10, 1991 to purchase specific amounts of Cooper Lake water from the District pursuant to the Com- merce contract, and WHEREAS, the amount of Cooper Lake water that Denton and Lewisville, respectively, have the right to purchase and to receive on a firm yield basis under the Cooper Reservoir Proj- ect Contract is approximately 2 0 mgd plus any authorized overdraftmg, and WHEREAS, Denton has the right to pass its contracted share of Cooper water through Lewisville Lake for withdrawal at its existing intake structure and treatment at its existing water treatment structure or for sale to the District or other parties approved by the District, subject to various contracts between the District, Denton, Lewisville and other parties, and WHEREAS, Denton, District and Lewisville desire to pass the remaining Cooper water not taken�by Denton through Lewisville Lake to existing intake structures owned by Lewisville and District for subsequent treatment and to water treatment plants owned by the District and Lewisville, respectively, and WHEREAS, in consideration for Denton's Agreement to pass this water through Lewisville Lake, the District agrees to pay Denton an annual pass -through fee equal to two cents ($0 02) per thousand gallons of Cooper water, to make interim and long term sales from Denton's share of the Cooper not requested by Denton to be reserved to it and for other consid- eration expressed in the body of the contract, and WHEREAS, Denton, Lewisville and District wish to enter into an Agreement entitled the "Upper Trinity Regional Water District Agreement with the City of Denton and the City of Lewisville Concerning Water from Cooper (Chapman) Lake" hereinafter referred to as the "Lewisville Lake Pass -Through Agreement," and WHEREAS, the Public Utility Board at its regular meeting of July 6, 1998, recom- mended approval of the Lewisville Lake Pass -Through Agreement by a vote of 4 to 1, and WHEREAS, the City Council deems it in the public interest to approve and authorize the City Manager to execute the Lewisville Lake Pass -Through Agreement, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the facts and recitations contained in the preamble of this ordinance are hereby found and declared to be true and correct SECTION II. That the Lewisville Lake Pass -Through Agreement in substantially the form of the attached Agreement, which is made a part of this ordinance for all purposes, is hereby approved and the City Manager is authorized to execute that Agreement on behalf of the City of Denton SECTION III That the City Manager or his respective designee is hereby authorized to negotiate and enter into an Operating Protocol and Proposed Reuse Strategy as a part of the Lewisville Lake Pass -Through Agreement to make full use of the District's water from the Coo- per Lake while avoiding any adverse impact on Denton's water and storage rights in Lewisville Lake and to undertake any and all other obligations imposed on the City Manager and Denton in said Agreement SECTION IV That the City Council has found and determined that the meeting at which this ordinance is considered is open to the public and that notice thereof was given in accordance with provisions of the Texas open meetings law, TEX GOV'T CODE ch 551, as amended, and that a quorum of the City Council was present SECTION V. That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the day of 1998 1 JA ILLER, MAYOR P urv,rwuewv.aLW ur noownw.wm4i un,r�99�vppx vw�r wrAuanNaoo Page 2 ATTEST JENNIFER WALTERS, CITY SECRETARY BY APP VED S TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY F-VV P bhentlWeptLL6LWor OzwPatle W rAlneaM9l�uPP� hM1mY VurNrouBh Crc Page 3 UPPER TRINITY REGIONAL WATER DISTRICT AGREEMENT WITH CITY OF DENTON AND CITY OF LEWISVILLE CONCERNING WATER FROM COOPER (CHAPMAN) LAKE THE STATE OF TEXAS § COUNTY OF DENTON § This LEWISVILLE LAKE PASS -THROUGH AGREEMENT (the "Agreement') for water from Cooper (Chapman) Lake is made and entered into as of the 24th day of August , 1998 (the "Date of Agreement'), by and between the CITY OF DENTON (herein "Denton"), and the CITY OF LEWISVILLE (herein "Lewisville") and UPPER TRINITY REGIONAL WATER DISTRICT (herein the "District"), each of which is sometimes referred to herein as Party, or collectively as the Parties WITNESSETH WHEREAS, the District entered into a contract (with an initial term of fifty years) on July 5, 1990, with the City of Commerce, Texas (the "Commerce Contract') to purchase water out of Cooper Lake (recently renamed Chapman Lake), the amount of which is approximately 11 72 million gallons per day (mgd) on a firm yield basis, which amount is subject to revision by future yield studies, and WHEREAS, the amount of water under the Commerce Contract available to the District by diversion out of Cooper Lake in any given year is authorized to be approximately 14 4 mgd, including overdrafting rights, and WHEREAS, the actual yield and available diversion amount from Cooper Lake may be modified UTRWD\City of Denton\City of Lewlsville Lewisville Lake Pass -Through Agreement Water from Cooper (Chapman) Lake Page 2 in the future, based on future yield studies or operating agreements, and WHEREAS, District may purchase additional water out of Cooper Lake from the City of Irving or other parties, and WHEREAS, on behalf of District, the City of Commerce and Sulphur River Municipal Water District applied to and received authorization from Texas Natural Resource Conservation Commission ("TNRCC") for District to divert water from Cooper Lake in Sulphur River Basin to Trinity River Basin for use by District, and WHEREAS, Denton, Lewisville and others entered into a contract (the "Cooper Reservoir Project Contract") with District on June 10, 1991 to purchase specific amounts of Cooper water from District pursuant to the Commerce Contract, and WHEREAS, the amount of said water that Denton and Lewisville, respectively, have the right to purchase on a firm yield basis under the Cooper Reservoir Project Contract is approximately 2 0 mgd plus any authorized overdrafting and WHEREAS, each of the Parties to this Agreement currently has and agrees to maintain water sources other than Cooper Lake to meet their total water supply requirements, whether for peaking or for base flow purposes, and WHEREAS, Lewisville desires to pass its Cooper Lake water through Lewisville Lake and concurs with the provisions of this Agreement, with the understanding that Lewisville has a limited role in UTRWD\City of Denton\City of Lewisville Lewisville Lake Pass -Through Agreement - Water from Cooper (Chapman) Lake Page 3 this Agreement related to operation of its raw water pumping facilities in a coordinated program for efficient use of Cooper Lake water, and will avoid use of Denton's storage rights in the Lake, and WHEREAS, the City of Irving holds water rights (approximately 39 5 mgd firm yield) in Cooper Lake, and has appropriate authorization to divert up to 48 2 mgd annually to the Trinity River Basin, and WHEREAS, District is planning to participate with the City of Irving in the design, construction and operation of pipeline, pumping and meter facilities to transport and measure Irving's and District's water from Cooper Lake to Lewisville Lake, and WHEREAS, Denton and the City of Dallas, respectively, hold water rights in Lewisville Lake, which rights enable Denton and Dallas to authorize other parties to transport water into, through, and out of Lewisville Lake under the conditions and restrictions set forth in various contracts that Denton and Dallas have with each other and with other parties, including, without limitation, that certain contract between Denton and the United States of America entitled "Contract Conservation Storage Garza -Little Elm Dam and Reservoir" identified as Contract #DA-41-443-ENG-1093, and that certain untreated water contract between Dallas and Denton dated August 7, 1985, and WHEREAS, the City of Irving has contracted to convey its water from Cooper Lake through Lewisville Lake (with specified use of storage rights) under an agreement with the City of Dallas for subsequent treatment downstream of Lewisville Lake, and WHEREAS, under the Cooper Reservoir Project Contract, Denton and Lewisville (and other UTRWD%Clty of Denton\Clty of Lewisville Lewisville Lake Pass -Through Agreement -Water from Cooper (Chapman) Lake Page 4 Participating Members) have certain rights and obligations, Including, without limitation, the right to participate or not to participate in the Cooper Reservoir Protect and the right to purchase or receive quantities of the Cooper raw water in the proportions Identified in the Contract and Exhibit A to the Contract, said rights and obligations being defined by the terms and conditions of the Cooper Reservoir Protect Contract, and WHEREAS, the Parties' rights to purchase or receive Cooper water under the Cooper Reservoir Protect Contract are dependent on the Commerce Contract and on a Contract between the City of Commerce, Texas and the Sulphur River Municipal Water District ("SRMWD") entered into on or about March 7, 1991 (the "SRMWD Contract"), and WHEREAS, Denton has the right to pass its contracted share of Cooper water through Lewisville Lake for withdrawal at its existing intake structure and treatment at its existing water treatment plant or for sale to District or other parties approved by District, subject to the contracts mentioned herein, and WHEREAS, District and Lewisville desire to pass the remaining Cooper water not taken by Denton through Lewisville Lake to the existing intake structure(s) owned by Lewisville and District for subsequent treatment at water treatment plants owned by District and Lewisville, respectively, and WHEREAS, it is the intention of all Parties to this Agreement to accomplish the conveyance of the District's water through Lewisville Lake with no right of storage in the Lake, and UTRWD%Clty of Denton\City of Lewisville Lewisville Lake Pass -Through Agreement - Water from Cooper (Chapman) Lake Page B WHEREAS, it is the desire of all Parties to this Agreement to convey and use the water available to District from Cooper Lake, and WHEREAS, the "District's water" as generally referred to In this Agreement Includes (1) all of the water purchased pursuant to the Commerce Contract, Including amounts of said water contracted to Denton, Lewisville and other parties pursuant to the Cooper Reservoir Project Contract and similar water sales contracts entered into by District subsequent thereto, and (2) any additional water not to exceed ten (10 0) mgd that District may purchase that originates in Cooper Lake, and WHEREAS, passage of Cooper Lake water by District through Lewisville Lake will not occupy or impair storage rights or adversely affect water yield of Denton or the City of Dallas in Lewisville Lake, and WHEREAS, Denton, Lewisville and District desire to cooperate in strategies to facilitate the efficient and economical transportation and use of Cooper Lake water, and WHEREAS, Denton, Lewisville and District own and operate separate intake and water treatment facilities, the collective capacity of which is more than adequate to withdraw and treat District's water from Cooper Lake that might reasonably be expected to be discharged into Lewisville Lake on any given day NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and subject to the terms and conditions herein set forth, Denton, Lewisville and District agree and contract as follows UTRWD\City of Denton\City of Lewisville Lewisville Lake Pass -Through Agreement -Water from Cooper (Chapman) Lake Page 6 ARTICLE I PREAMBLE Section 10 Preamble That the matters stated in the preamble are true and correct and are incorporated into the body of this Agreement as if copied herein in their entirety Any conditions and terms set forth in the preamble which impose obligations on the Parties shall be just as enforceable as the matters stated in the body of this Agreement ARTICLE II THE PROJECT Section 2 0 Cooper to Lewisville Project To provide an economically feasible means to transport the District's water from Cooper Lake to Denton County, including the amount of water contracted to Denton and Lewisville, respectively, District plans to participate with the City of Irving in the design, construction and operation of pipeline, pumping and meter facilities to transport and measure both the District's and Irving's water from Cooper Lake to Lewisville Lake District, Denton and Lewisville recognize that the provisions of this Agreement are necessary for achievement of the transport of the water from Cooper Lake in an efficient manner to the Parties' treatment facilities as contemplated in the heretofore referenced Commerce and Cooper Reservoir Project Contracts Furthermore, Denton and Lewisville agree to reasonably assist District in making and supporting applications or requests to the United States Corps of Engineers and Texas Natural Resource Conservation Commission concerning related approvals for the Cooper Lake to Lewisville Lake project that may be needed from the respective agencies to effect the intent of this Agreement Provided, however, nothing in this Agreement shall create any obligation on Lewisville's or UTRWD\City of Denton%City of Lewisville Lewisville Lake Pass -Through Agreement -Water from Cooper (Chapman) Lake Page 7 Denton's part to participate in the Cooper Water Pipeline Project, including funding for that Project, beyond existing obligations contained in the contracts referenced above in this Section Further, it is agreed that Denton and Lewisville have the same nght and opportunity to participate or not to participate in capital funding for the Project under Section 3 03 (b) and other applicable provisions of the Cooper Reservoir Project Contract, whether capital funds for the Project are supplied by the District or supplied by the City of Irving If Denton exercises its option to not participate in the Cooper Reservoir Project, the District shall purchase or convey Denton's interest in the Project Terms of the purchase or conveyance shall be according to the Cooper Reservoir Project Contract ARTICLE III WATERIGENERAL PROVISIONS Section �3 0 General Agreement for Pass -through Denton agrees that District may pass Distnct's water from Cooper Lake through Lewisville Lake within water rights held by Denton under permit from State of Texas and under contracts with United States Corps of Engineers ("Corps") and the City of Dallas mentioned in the preamble subject to any terms, conditions, and limitations set forth, in the permit and the contracts Provided, however, the pass -through of water shall be limited strictly to the Cooper water described herein and District shall not pass through any other water It is expressly understood that this Agreement, including, without limitation, the monthly accounting and Operating Protocol, does not authorize the District, Lewisville or any other party to use Denton's storage space within Lewisville Lake or to cause it to be reduced or impaired Section 3.1. Pipeline and Transportation Losses The quantity of Cooper water discharged into UTRWD%Cltylof Denton\City of Lewisville Lewisville Lake Pass Through Agreement - Water from Cooper (Chapman) Lake Page 8 Lewisville Lake is to be determined by the metered quantity at the pipeline pump station, less pipeline and transmission losses For estimating water losses that may occur from the metering point near Lake Lavon to the discharge into Lewisville Lake, the Parties agree to the following a) Pipeline Losses Use percentages specified in, or determined pursuant to, a separate Agreement (attached hereto as a part of this Agreement as Exhibit A) dated January 8, 1998 between City of Irving and City of Dallas for water treatment services related to water from Cooper Lake b) Channel Losses If District delivers Cooper Lake water to a tributary of Lewisville Lake, losses in excess of those expected from a pipeline of corresponding length as agreed upon by the Denton City Manager, or authorized designee, and the District's Executive Director, will be added to the losses determined pursuant to paragraph (a) immediately preceding In arriving at such channel losses, Denton and District agree to give due consideration to comparable losses determined pursuant to the Irving/Dallas Contract attached hereto as Exhibit A c) Failure to Agree If agreement is not achieved by the designated staff representatives pursuant to paragraph (a) or (b) immediately preceding, the matter shall be referred to the governing bodies of District and Denton for determination Sectlon,3 2. Pass Through / No Evaporation Losses Denton and District agree that since no storage rights are to be granted to District under this Agreement, and since the elevation of water surface in the lake will not be increased by passage of water through Lewisville Lake, there will UTRWD\City of Denton\City of Lewisville Lewisville Lake Pass Through Agreement • Water from Cooper (Chapman) Lake Page 9 be no increase in evaporation losses resulting from such passage through the Lake Accordingly, each of the Parties to this Agreement will be authorized to withdraw their respective amounts of water from the Lake that was discharged into the Lake It is agreed that any incidental evaporation losses that might be associated with the passage of Cooper Lake water through Lewisville Lake shall be adequately compensated to Denton by the consideration hereinafter specified Section 3.3 Determination of Water Quantity Subject to the two paragraphs immediately preceding, the amount of District water to be discharged into and withdrawn from Lewisville Lake by the respective Parties shall be determined by monthly coordination of meter readings from planned metering facilities at an intermediate point on the pipeline near Lake Lavon between Cooper Lake and Lewisville Lake and at the respective points of withdrawal by the Parties from Lewisville Lake The meter facilities near Lake Lavon, shall measure the quantity of Cooper water for City of Irving in addition to the Distrct and other pa- ies The Parties hereto agree to provide mutual access to meter reading records of each Party upon 48-hour written notice by the Party requesting same, to verify quantities of Cooper Lake water discharged into and withdrawn from Lewisville Lake ARTICLE IV WATER, ACCCOUNTING AND COORDINATION Section 4 0 Operating Protocol / Water Accounting Within the framework of this Agreement, Denton and Lewisville will assist the District in development and implementation of an Operating Protocol to make full use of District's water from Cooper Lake, avoiding any adverse impact on Denton's water and storage rights in Lewisville Lake Nothing in this Agreement shall ever be UTRWD\City of Denton\City of Lewisville Lewisville Lake Pass -Through Agreement - Water from Cooper (Chapman) Lake Page 10 construed as granting to District any storage rights in Lewisville Lake Prior to Initial discharge of Cooper water by District into Lewisville Lake, District shall develop said protocol for approval by the City Manager of Denton and City Manager of Lewisville or their respective designees, which approval will not be unreasonably withheld District, Denton and Lewisville agree to maintain an overall water balance through an operating strategy coordinated by District, processing water through the individual treatment plants of the Parties as required and needed to achieve a balance between, water discharged into and withdrawn from Lewisville Lake The District will maintain an accounting of water into and out of Lewisville Lake to assure that each Party gets their respective share, or a lesser amount if requested, of Cooper Lake water on an annual basis The Operating Protocol will provide for total usage of all Parties combined to be balanced with total discharges into Lewisville Lake on a monthly basis Any records associated with water accounting shall be made available to the Party requesting those records upon 48-hour written notice to the Party who has custody of the records Section, 41. Coordinatina Daily Usage / Other available Water No Party to this Agreement will be expected or required to process at their respective water treatment plant more water from Cooper Lake on any given day than would otherwise be needed to meet their system daily requirement Provided however, that nothing in this Section shall be construed to be a waiver of the District's obligations under Section 6 0 If on a given day, any Party uses more than their respective share of Cooper water, the water accounting system approved by the Parties as a part of the Operating Protocol and maintained by District will make offsetting adjustments in subsequent days to bring total usage by each respective Party back into balance by year-end It is agreed that each Party to this Agreement has other water resources available to it out of Lewisville Lake and other sources to supplement water from Cooper Lake to meet total daily requirements, whether for UTRWD\City of Denton%Clty of Lewisville Lewisville Lake Pass -Through Agreement -Water from Cooper (Chapman) Lake Page 11 peaking or for base flow purposes Provided, however, District will use its best efforts to supply each Party's daily and annual requirements within the limitations of pipeline and pumping capacities according to this Agreement, the Cooper Reservoir Project Contract and the Operating Protocol Section 4 2 Monthly Water Accountinafrotal Usage Pursuant to this Agreement and the Operating Protocol, District will maintain a monthly balance between the total amount of Cooper water discharged Into Lewisville Lake and the total amount of water withdrawn All Parties hereto will cooperate to achieve a monthly balance, and, excess water, if any, will be accounted for according to Section 6 0 (g) herein Sectlon 4.3 Settle -Up Between Parties For purposes of this Agreement, District will account for water usage and water sales for each Party pursuant to the Operating Protocol, coordinated with the period used in reporting raw water diversions or withdrawals to State of Texas Any settle - up of usage between the Parties required by the Operating Protocol or water accounting system will be performed at least annually Section 4 4 Coordination with Irving Water District agrees to coordinate the Operating Protocol for conveying District's water through Lewisville Lake with the corresponding procedures by the City of Irving for conveying its water from Cooper Lake through Lewisville Lake under a separate agreement with the City of Dallas Provided, however, nothing herein shall ever relieve District of any of its obligations under this Agreement and the Operating Protocol Section 4 5 Short -Term Provision for Sale of Excess Water If requested in writing from time to time, the District will use its best efforts to use or sell on behalf of Denton or Lewisville any UTRWD\City of DentonlCity of Lewisville Lewisville Lake Pass -Through Agreement Water from Cooper (Chapman) Lake Page 12 portion of their Cooper Lake water not required or used currently This Section will be administered on an annual basis and relates to water that the Party had expected to need or use and accordingly was reserved for their regular use This provision relates to short-term periods of one year or less and is distinct from the provisions of Sections 6 0 (c) and (d), which covers sales over an extended period of time for Denton, only Under this Section, any such purchases from Denton or Lewisville will be priced at eighty five percent (85%) of the Dallas posted price for firm raw water sold at wholesale for resale Section 4 6 Metering Measurement of water discharged into Lewisville Lake by the District and water withdrawn by one of the Parties hereto will be measured at meter facilities which are installed for other purposes pursuant to other agreements Maintenance and calibration of the meters will be performed according to the terms of said other agreements to assure accurate readings Denton shall have access to the records concerning maintenance and calibration of the meters upon 24-hour notice ARTICLE V WATER REUSE Section S 0. Reuse of Water District agrees to make reasonable efforts to obtain permission from the State of Texas for reuse of water imported into the Trinity River Basin by District from Cooper Lake Within the framework of this Agreement, Denton and Lewisville will assist the District in development and implementation of a Proposed Reuse Strategy to make full use of District's water from Cooper Lake, avoiding any adverse impact on Denton's water and storage rights in Lewisville Lake Nothing in this Agreement shall ever be construed as granting to District any UTRWD\City of Denton%City of Lewisville Lewisville Lake Pass -Through Agreement - Water from Cooper (Chapman) Lake Page 13 storage rights In Lewisville Lake Prior to the District making application for such reuse, District shall develop said Proposed Reuse Strategy for approval by the City Manager of Denton and City Manager of Lewisville or their respective designees, which approval will not be unreasonably withheld Denton and Lewisville agree to cooperate with the District in making and supporting applications to obtain permission for such reuse of water diverted from Cooper Lake, after initially used by the Parties and treated and returned to waters of the State of Texas It is the Intent of the Parties to this Agreement that any such approved reuse will be of benefit to each of the Parties to obtain maximum benefit from their respective amounts of water from Cooper Lake pursuant to the Cooper Reservoir Project Contract Further, Denton agrees that If approval Is granted for such reuse by the State of Texas, any such water so reclaimed or treated and returned to Lewisville Lake or its environs may be conveyed through and withdrawn from Lewisville Lake by District, Denton and Lewisville on the same terms and conditions as provided herein for water originally diverted from Cooper Lake Provided, however, the Pal' es hereto expressly agree that if any Party Is authorized to so reuse their respective share of Cooper Lake Water, they will not be required by the District to pay for the water again, recognizing that the District Is limited to recovery of its actual cost pursuant to the Cooper Reservoir Project Contract Denton expressly reserves the right to not participate in any such reuse application for Its share of Cooper Lake Water ARTICLE VI CONSIDERATION, FEES Section 6 0 Consideration For Services District and Lewisville recognize that Denton's agreement herein for District and Lewisville to convey (pass through) their Cooper water through Lewisville Lake within Denton's water and storage rights has value to District and Its customers UTRWD\City of Denton\Clty of Lewisville Lewisville Lake Pass -Through Agreement - Water from Cooper (Chapman) Lake Page 14 over and above the actual cost to Denton Accordingly, District and Lewisville agree to provide the following benefits as consideration for the grants and privileges agreed to herein by Denton a) Pass -Through Fee On an annual basis, District will pay to Denton a fee equal to two cents ($0 02) per thousand gallons of Cooper water actually discharged into and withdrawn from Lewisville Lake pursuant to this Agreement Said fee shall not apply to the water contracted to Denton and which Denton acquires under the Cooper Reservoir Project Contract heretofore referenced, unless Denton refuses to participate in funding the Project, and said water is sold or conveyed pursuant to Section 3 03 (b) of said contract Also, the fee shall apply to Cooper water reclaimed for reuse if discharged into and subsequently withdrawn from Lewisville Lake by District or Lewisville pursuant to a reuse permit or other appropriate regulatory authorization b) Fee I Periodic Adiustment. The fee amount provided in paragraph (a) immediately preceding shall be subject to an annual adjustment on or about October 1 of each year, commencing the year that facilities are operational to discharge the District's water from Cooper Lake into Lewisville Lake, to reflect increases or decreases in costs according to the Consumer Pnce Index For All Urban Consumers (CPI-U, all items, published by United States Department of Labor, Bureau of Labor Statistics, 1982-1984=100) The "Current Index" shall refer to the most recent quarterly Index published prior to the date of adjustment "Previous Index" shall refer to the comparable period one year earlier The fee shall be adjusted by multiplying the applicable fee times a fraction, the numerator of which is the Current Index, and the denominator of which is the Previous Index C) Interim Provision for Sale of Denton Water Until Denton notifies the District that it needs its share of the Cooper water, the provisions of this paragraph and paragraph (d) UTRWMCity of Denton\Clty of Lewisville Lewisville Lake Pass -Through Agreement -Water from Cooper (Chapman) Lake Page 15 following are effective, District agrees to use its best efforts to use or sell any portion of Denton's water from Cooper Lake that Denton does not request to be reserved for its use Denton and the District agree that the price of said water shall be equal to the Dallas posted price for firm raw water sold at wholesale for resale If District is unable to use or sell Denton's water under this interim provision, any proposed resale by Denton shall be in accordance with the Cooper Reservoir Project Contract d) Long Term Provision for Sale of Denton Water District agrees to purchase or sell Denton's water under the following circumstances In any year that District needs water to augment water available to District out of Its rights in Cooper Lake, except pursuant to "take or pay," "ratchet," or such clauses In other contracts the District may have for purchase of raw or treated water, District will purchase or sell Denton's water until Denton gives written notice at least twelve (12) months in advance that Denton desires to reserve the water for its own use The obligation of District to purchase or sell Denton's water hereunder shall come ahead of all other existing or future agreements the District may have for temporary or interim purchases of water from others, including Denton To the extent that District does not purchase said water from Denton but Is able to sell to others on behalf of Denton, District agrees to remit to Denton the proceeds of such sales, less actual cost, if any, of administering such sale Denton and the District agree that the price of said water under this paragraph shall be equal to the Dallas posted price for firm raw water sold at wholesale for resale 0 ADolication for Reuse District agrees to use reasonable efforts to make application for and to obtain permission from TNRCC for District, Denton, Lewisville and UTRWD\City of Denton\City of Lewisville Lewisville Lake Pass -Through Agreement - Water from Cooper (Chapman) Lake Page 16 others to reuse Cooper Lake water that has been used, reclaimed, treated and returned to waters of the State of Texas f) Flood Stage Provisions Recognizing that Cooper Lake water is an important source of water for the District, its customers and the Parties to this Agreement, the District is authorized to pass its Cooper Lake water through Lewisville Lake during flood stage conditions subject to authorization, if required, by the Corps as provided in Section 2 0 Such pass -through during flood stage shall be subject to all other applicable provisions of this Agreement including Section 3 0 which prohibits the District from using, reducing or impairing Denton's storage space g) Water Balance / Excess Water It is the intent of all Parties that daily discharge into and withdrawals from Lewisville Lake will be kept in reasonable balance It is agreed that the contracted basis for balancing actual quantities for usage and compensation under this Agreement will be monthly volumes District and Lewisville agree that if more water is discharged than withdrawn in any given month, said excess water shall become the property of Denton for use or sale by Denton The quantity of Cooper water, under this paragraph shall be determined by the Operating Protocol specified in Section 4 0, which protocol will take into account the normal time required for water to flow between the metering point and Lewisville Lake Section 61 Fees I Terms ADDIy to Lewisville Lewisville agrees to pay its pro rata share of any fees provided for herein and to be bound by the terms hereof District agrees to include any such fees in the cost of water (or Annual Requirements) charged by District or otherwise provided UTRWD\City of Denton\City of Lewisville Lewisville Lake Pass -Through Agreement - Water from Cooper (Chapman) Lake Page 17 for in the Cooper Reservoir Project Contract However, District shall not include such fees In the cost of Cooper water sold to Denton, except to the extent that fees and cost, if any, are incurred by District in connection with Denton's Cooper water ARTICLE VII BILLING AND PAYMENT Section 7 0 Bills Rendered Denton shall render bills monthly to District for services provided by Denton under this Agreement District will cooperate with Denton and will provide coordinated meter readings or other water accounting Information reasonably necessary for preparation of monthly bills by Denton If mutually agreed, monthly estimates will be acceptable for billing purposes, subject to settle -up provisions of this Agreement District will be responsible for billing and collecting fees and charges from Lewisville and any )ther users of the water Bills shall be due and payable upon receipt by District and by Lewisville Section 7.1 Prompt Payment and Disputed Bills District shall make payments to Denton within 20 calendar days of the date a bill for service Is rendered Likewise, Lewisville shall make prompt payments within 20 calendar days to District If the receiving Party at anytime disputes the amount to be paid by it to the billing Party, the receiving Parry shall nevertheless promptly make such payment or payments, but, if it is subsequently determined by agreement or final court decision that such disputed payments should have been less, or more, the amount shall be promptly adjusted The charges shall be adjusted in such manner that the receiving Party will recoverts overpayment or the billing Party will recover the amount due it All amounts due and owing to any Party shall, If not paid when due, bear Interest at the rate of ten percent (10%) per UTRWD\City of Denton\City of Lewisville Lewisville Lake Pass Through Agreement • Water from Cooper (Chapman) Lake Page 18 annum from the date when due until paid ARTICLE VIII GENERAL PROVISIONS Section 8.1 Representations of the Parties The District, Denton, and Lewisville hereby covenant and agree as follows a) Each Party to tnis Agreement warrants that its actions in executing and entering into this Agreement have been duly authorized in a manner that follows the laws applicable to it b) Each Party to this Agreement warrants that It shall promptly and with all due diligence, acting jointly or individually as may be appropriate, take all necessary actions and endeavor to obtain all regulatory approvals, licenses, orders and permits necessary to carry out its obligations under this Agreement, including, without limitation, any approval necessary from the Corps and TNRCC The pass -through of Cooper Lake water authorized by this Agreement Is conditioned upon Denton obtaining permission, If necessary, from the Corps Section 8 2 Termination and Default a) Should District fail, refuse or neglect to pay any bill for services hereunder within sixty (60) days of the date due, or, should it refuse, neglect, or fail to comply with or perform any of the conditions on Its part required to be complied with or performed hereunder, including, without limitation, District's failure to develop or comply with the Operating UTRWD\City of Denton%City of Lewisville Lewisville Lake Pass -Through Agreement -Water from Cooper (Chapman) Lake Page 19 Protocol set forth in Section 4 0, the District shall be in default If after such default, Denton shall deliver to District, addressed to the Executive Director of District, a notice in writing of its intent to terminate the passage of water through Lewisville Lake on account of such failure, refusal or neglect, then Denton shall have the right to terminate the services hereunder, including sale of water, at the expiration of thirty (30) days after the giving of such notice and to terminate this Agreement, unless within thirty (30) days District shall make good such failure, refusal or neglect If District pays or performs within the thirty -day (30) period, the default shall cease to exist The termination of this Agreement or right to terminate this Agreement shall not constitute Denton's only remedy for breach of the Agreement as provided herein Termination of this Agreement, as provided herein, shall not release District from its obligation to make payments of any amounts due or to become due in accordance with the terms hereof, or to pay damages to Denton resulting from such default, and Denton specifically reserves all remedies at law or in equity for any such breach, including, without limitation, the right to demand specific performance, or to obtain a writ of mandamus in the District Courts of Denton County to require compliance b) In the event Lewisville fails to comply with or carry out its obligations and requirements under this Agreement, including, without limitation, Lewisville's failure to reasonably approve and to comply with the Operating Protocol set forth in Section 4 0 and the Proposed Reuse Strategy set forth in Section 5 0, the District or Denton shall give Lewisville thirty (30) days written notice to comply In the event Lewisville fails to comply or take satisfactory steps towards compliance within said thirty (30) day period, the Party or Parties giving the notice shall have the right to require specific performance, or to obtain a writ of mandamus in the District Courts of Denton County to require compliance, or to UTRWD\Clty of Denton\City of Lewisville Lewisville Lake Pass -Through Agreement Water from Cooper (Chapman) Lake Page 20 terminate the Agreement, or to collect damages resulting from such failure to comply, and District and Denton specifically reserve all remedies at law or in equity for breach of this Agreement c) In the event Denton falls to comply with or cant' out its obligations and requirements under this Agreement, including, without limitation, Denton's failure to reasonably approve and to comply with the Operating Protocol set forth in Section 4 0 and the Proposed Reuse Strategy set forth In Section 5 0, the District or Lewisville shall give Denton thirty (30) days written notice to comply In the event Denton fails to comply or take satisfactory steps towards compliance within said thirty (30) day period, the Party or Parties giving the notice shall have the right to require specific performance, or to obtain a writ of mandamus In the District Courts of Denton County to require compliance, or to terminate the Agreement, or to collect damages resulting from such failure to comply, and District and Lewisville specifically reserve all remedies at law or in equity for breach of this Agreement Section 0.3 Force Maloure. If, because of flood, drought, fire, explosions, civil disturbance, war, water system failure or malfunction, acts of God, or other causes beyond the control of either Party, either Party is not able to perform any or all of its obligations under this Agreement, then the respective Party's obligations hereunder shall be suspended during such period, and for no longer than such period of time when the Party is unable to so perform Section 8 4 Liability and Claims. a) To the extent allowed by law, except for the actions or Inactions described and disclaimed in paragraphs 8 5 and 8 6, which are expressly excluded from this Indemnity, Denton agrees to Indemnify and hold harmless and defend District and Lewisville, their UTRWD\City of Denton\Clty of Lewisville Lewisville Lake Pass -Through Agreement - Water from Cooper (Chapman) Lake Page 21 officers and employees, from any claim for injuries, damages or losses, administrative proceedings, lawsuits or judgments, penalties, costs, expenses, and attorney's fees for personal injury (including death), property damage, other harm for which recovery of damages is sought, or violations of federal or state laws or regulations that arise from any act, omission or negligence of Denton, its officers or employees, arising from the performance of this Agreement, unless said injuries, damages or losses result from the negligence of Distnct or Lewisville, respectively The indemnity shall apply in cases where, due to Denton's operations and obligations under this Agreement, the Lewisville Lake water quality is impaired or the Cooper water is impaired, and if Denton violates applicable state or federal environmental laws, rules, or regulations b) To the extent allowed by law, District agrees to indemnify and hold harmless and defend Denton and Lewisville, their officers an' employees, from any claims for injuries, damages or losses, administrative proceedings, lawsuits or judgments, penalties, costs, expenses, and attorney's fees for personal injury (including death), property damage, other harm for which recovery of damages is sought, or violations of federal or state laws or regulations that arise from any act, omission or negligence of District, its officers or employees, arising from the performance of this Agreement, unless said injuries, damages or losses result from the negligence of Denton or Lewisville, respectively The indemnity shall apply in cases where, due to District's operations and obligations under this Agreement, the Lewisville Lake water quality is impaired or the Cooper water is impaired, and if the District violates applicable state or federal environmental laws, rules, or regulations UTRWD\City of Denton\City of Lewisville Lewisville Lake Pass -Through Agreement • Water from Cooper (Chapman) Lake Page 22 c) To the extent allowed by law, Lewisville agrees to indemnify and hold harmless and defend District and Denton, their officers and employees, from any claims for injuries, damages or losses, administrative proceedings, lawsuits or judgments, penalties, costs, expenses, and attorney's fees for personal injury (including death), property damage, other harm for which recovery of damages is sought, or violations of federal or state laws or regulations that arise from any act, omission or negligence of Lewisville, its officers or employees, ansing from the performance of this Agreement, unless said injuries, damages or losses result from the negligence of District or Denton, respectively The provisions of this Agreement, including the above indemnities, are solely for the benefit of the Parties to this Agreement, and are not intended to create or grant any rights, contractual or otherwise, to any other person or entity Section 6 5. No Warranties Denton makes no representation or warranty, express or implied, as to the character, quality, or availability of the water to be taken or sold by the District under this Agreement, and, the District agrees to assume all such risks, to accept such water, if available, in the same state as it is provided or made available to District, nor, does Denton make any representation that such water will be suitable for the purposes for which the District desires to use it Denton shall not be liable in the event of the non -availability of water hereunder, the unsuitability of such water, or its quality, or the inability of Denton to perform any obligation under this Contract for force majeure reasons as stated in Section 8 3 hereof, including rules and regulations of other governmental agencies Section 8.6 Regulations of Other Agencies Denton shall not be liable in any event for the UTRWD\City of Denton\Clty of Lewisville Lewisville Lake Pass -Through Agreement - Water from Cooper (Chapman) Lake Page 23 nonavailability of services hereunder due to the inability of Denton to perform any obligation under this Agreement for reasons beyond its control, including rules or regulations of other governmental agencies Provided, however, Denton will pursue action or remedies it deems reasonable, with reasonable assistance by District, for such non -availability of services to allow restoration of services so affected, impaired or suspended within a reasonable time, considering the conditions creating the non -availability of services Section 8 7 Severabllity If any provision of this Agreement is by any court held to be illegal or in conflict with any law or regulation, the validity of the remaining provisions of this Agreement shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular provision held to be invalid Section 8 8 Assignment. Neither Party shall assign nor transfer in whole or in part the rights and privileges granted in this Agreement without first obtaining the written consent of the other Party Sectiom8.9. Entire Aareement Modification This Agreement embodies the whole agreement of the Parties There are no promises, terms, conditions, or obligations other that those contained herein This Agreement shall supersede all previous communications, representations, or agreements, either verbal or written, between the Parties, and all modifications of this Agreement shall be an writing and approved by the affected Parties Section 810 Venue All amounts due under this Agreement shall be paid and be due in Denton County, Texas It is specifically agreed among the Parties that Denton County, Texas, is the place of performance of this Agreement In the event that any legal proceeding is brought to enforce this UTRWD\City of Denton\City of Lewisville Lewisville Lake Pass -Through Agreement - Water from Cooper (Chapman) Lake Page 24 Agreement or any provision hereof, the same shall be brought in Denton County, Texas Section 8 11 Notices Any notice, request for information or other document to be given hereunder to any of the Parties hereto by the other Party shall be in writing and shall be hand - delivered or sent by certified or registered mail, postage prepaid, requesting evidence of receipt as follows a) If to Denton, addressed to City of Denton Attention City Manager 215 East McKinney City of Denton, Texas 76201 b) If to District, addressed to Upper Trinity Regional Water District Attention Executive Director Post Office Drawer 305 Lewisville, Texas 75067 c) If to Lewisville, addressed to City of Lewisville Attention City Manager P O Box 299002 Lewisville, TX 75029-9002 Either Party may change the address for notice above by certified mail to the other Parties at any time Section,812 Captions The captions of the various sections and paragraphs herein are intended for convenience or reference only and shall not define or limit any of the terms or provisions hereof UTRWD\City of Denton%City of Lewisville Lewisville Lake Pass -Through Agreement - Water from Cooper (Chapman) Lake Page 25 Section 8 13 Governing Laws This Agreement shall in all respects be governed by and construed in accordance with the laws of the State of Texas, including all matters of construction, validity and performance Section 8 14 Governmental Immunity Not Waived, Neither Denton, District, nor Lewisville waives, nor shall be deemed hereby to waive, any immunity or defense that would otherwise be available to it against claims made or arising from any act or omission resulting from the Agreement Section 815 Non -waiver The waiver by either Party of any breach of any provision contained in this Agreement shall not be deemed to be a waiver of such provision for any subsequent breach of the same or any other provision ARTICLE IV TERM OF CONTRACT Section 9.1 Effective Date, Upon execution by all Parties, this Agreement shall become effective upon the date first written above Section 9 2. Term of Contract This Agreement provides for delivery of Cooper Lake water purchased pursuant to the Commerce Contract, and, it is desirable to coordinate the initial term and renewals of this Agreement with said contract, and any renewals thereof Accordingly, the initial term of this Agreement shall continue in force and effect until September 28, 2041, provided, however, this Agreement may be renewed for succeeding twenty five (25) year periods for as long UTRWD\Clty of Denton%Clty of Lewisville Lewisville Lake Pass -Through Agreement • Water from Cooper (Chapman) Lake Page 26 as the Commerce Contract remains in effect If District requests such renewal by notifying Denton of its Intention to renew in writing at least 180 days before the end of the Initial or each succeeding renewal term, Denton and Lewisville shall not unreasonably withhold approval Upon each renewal after the initial term, the fees provided for herein (Section 6 Oa) may be modified in an amount mutually agreed to by Denton and District If Denton and District cannot agree on fees, either Denton or District may, at Its sole option, terminate the Agreement Other provisions of renewal agreements may be modified by mutual agreement of the Parties IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly -authorized officers in multiple originals as of the date and year first above written CITY OF DE TON, TEXAS Ted Benavides, City Manager ATTEST; lahriffer Iters, City Secretary APPROVED AS TO FORM AND LEGALITY Herb Prouty, CI Ay orney TEXAS Mayor X Marty Hendrix, CK&/AAE, City Secret UTRWD\Cityof Denton\City of Lewisville Lewisville Lake Pass Through Agreement • Water from Cooper (Chapman) Lake Page 27 APPROVED AS TO FORM AND LEGALITY Ronald J Neiffian, City Attorney UPPER TRINITY REGIONAL Me ATTEST _ Lg, / g - St v Bacchus, Secretary Board of Directors E�F D LEGALITY John F Boyle, Jr , Atto ney General Counsel for District \\CH LGL\VOLI\SHARED\DEPT\LGL\Our Documents\Contracts\gaVewbvtlla lake pass through doc