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HomeMy WebLinkAboutWater Agreement - 09/07/2005AGREEMENT THIS AGREEMENT, made and entered into in duplicate on the day of 2005, by and between the City of Central Point, a municipal corporation of the State of Oregon, (hereinafter referred to as PURCHASER), and the City of Medford, a municipal corporation of the State of Oregon, acting by and through its Board of Water Commissioners, (hereinafter referred to as VENDOR), W ITN ESS ETH: WHEREAS, VENDOR has surplus water available in its municipal water system and; WHEREAS, PURCHASER desires to purchase surplus water from the municipal water system of VENDOR; NOW, THEREFORE, for and in consideration of the foregoing and of the mutual promises hereinafter expressed, and intending to be legally bound hereby, the parties hereto do mutually agree as follows: ARTICLE 1. SCOPE OF WATER SUPPLY SERVICE VENDOR owns and operates the treatment and transmission facilities which supply "surplus" water to PURCHASER. VENDOR routinely attempts to anticipate the water demands of its customers, including those of PURCHASER. VENDOR needs reasonably accurate forecasts of future water demands in order to ensure sufficient "surplus" capacity in these facilities to meet the growth needs of its customers. Therefore, PURCHASER agrees that at the five-year renewal period it will convey to VENDOR a reasonable estimate of its maximum daily demand forthe next five-year period. VENDOR agrees to continue to supply surplus water up to a maximum 3,200 gallons per minute (GPM) or 4,500,000 gallons per day, for the months of October through April and up to a maximum of 4,600 GPM, or 6,800,000 gallons per day, for the months of May through September. In the case of an emergency, VENDOR agrees to increase the supply within the limits of its system. PURCHASER shall immediately take all necessary steps to remedy the emergency. Both parties understand and acknowledge that PURCHASER'S estimated demand is just a forecast and may prove to be too low, and that a large industrial or commercial customer may alter the demands of PURCHASER. In the eventthat PURCHASER becomes aware that itshall exceed its estimated maximum day demand, it shall notify VENDOR with a new estimated demand. VENDOR shall then determine if it has sufficient surplus treatment and transmission capacity to meet this anticipated demand. If sufficient capacity does not exist, then VENDOR shall provide PURCHASER a timeline for VENDOR to meet the demand. In the case of an extremely large industrial or commercial user (those who utilize over 2.0 MGD), VENDOR shall make a determination whether furnishing that particular user with its needed water supply is in the best interest of the citizens of Medford and makes the best use of the region's CITY OF CENTRAL POINT — Agreement Page 1 of 7 VENDOR shall, however, apply the same standard, as related to service to larger users, evenly across all the jurisdictions supplied by VENDOR. ARTICLE 2. CONNECTIONS PURCHASER'S primary water supply connections from VENDOR'S system are through an eight -inch (8") connection on Beall Lane, a 10 -inch (10") connection on Hopkins Road, and a 10 - inch (10") connection on Hamrick Road. The connections are available for utilization on a year- round basis. All piping and control valves downstream of these master meters shall be the responsibility of PURCHASER. ARTICLE 3. RULES AND REGULATIONS All rules and regulations of the Board of Water Commissioners relating to water users outside of the City of Medford as now in effect, or as the Board of Water Commissioners of the City of Medford may from time to time prescribe, shall be deemed a part of this Agreement, and PURCHASER agrees to comply therewith and its rights for the supply of water shall be governed thereby. No such rules or regulations shall relieve VENDOR of its obligation to supply water in accordance with the terms of this Agreement except as may be dictated by federal and state regulations or other items beyond VENDOR's control. Nothing contained in this Agreement shall be deemed to modify, alter or repeal any such regulations now or hereinafter adopted. PURCHASER acknowledges that it has received a copy of all rules and regulations governing water service of VENDOR relating to water users outside the City of Medford. VENDOR shall promptly, upon passage, supply to PURCHASER a copy of any amendments or additions to said rules and regulations. ARTICLE 4. URBANIZATION POLICY PURCHASER agrees that water supplied to its customers is an "urban" service and should be confined to current or future city residents. PURCHASER may establish its own urbanization and outside water service policies based on this premise or may utilize VENDOR's policy. In order to avoid future service conflicts, a general water service boundary map is attached to this Agreement. This map is intended to be modified as urban boundaries change due to regional and local planning decisions. PURCHASER agrees that it shall not serve any areas outside their city limits other than: a) Areas within PURCHASER'S Urban Growth Boundary b) Areas within PURCHASER'S Future Urban Reserve Area; and c) Areas within the Seven Oaks Interchange "Area of Mutual Planning Concern"; all as defined and described in PURCHASER'S Comprehensive Plan, which may be duly modified from time to time, PURCHASER also agrees to notify VENDOR in writing of all annexations or modifications to any of the boundaries described above. CITY OF CENTRAL POINT — Agreement Page 2 of 6 ARTICLE 5. MEETING FUTURE WATER DEMANDS PURCHASER understands that this Agreement calls for the sale of surplus water from VENDOR and that by the Year 2020 - 2030, with current growth trends, VENDOR will completely utilize all of its natural stream flow rights from the Rogue River. This will mean that VENDOR will not have sufficient "surplus" water to meet the summertime demands of PURCHASER. Additional stored water for municipal and industrial uses is currently available from the U.S, Army Corps of Engineers at Lost Creek Reservoir; or other alternatives may be available to meet summertime demands. Even though it is still 20 years until the system utilizes all of its current surplus water, plans and actions are needed now in order to avoid future water shortages. PURCHASER agrees, that during the term of this Agreement, it will maintain a reserve account to set funds aside for the purchase of Lost Creek Reservoir water or other alternate water supplies. During the term of this Agreement, PURCHASER shall maintain a water resource plan and financial plan to demonstrate to VENDOR that it will obtain sufficient stored water or other water rights to meet its 2020 summertime demand. PURCHASER agrees, that prior to August 1, 2006, it shall purchase or acquire the first one-third (1/3) of its 2020 demand including, but not limited to, any required water right permits, change of use, or point of diversion. Prior to the expiration date of the current Agreement, PURCHASER also agrees to purchase or acquire the second one-third (1/3) of its 2020 demand. The last one-third (1/3) increment shall be secured in five to ten years; so that all of the PURCHASER's 2020 summertime demand shall be obtained prior to 2015. PURCHASER shall secure and maintain the required demand water rights in perpetuity. Current growth and demand projections indicate that PURCHASER will need 2,341 acre-feet of water to meet its 2020 summertime demand. Demand projections will be reviewed by VENDOR and PURCHASER on the renewal date of this Agreement. VENDOR has included the service area of PURCHASER on water right certificates and permits; however, PURCHASER acknowledges that the surplus water used by VENDOR to supply PURCHASER's demands comes from water right certificates and permits in the name of VENDOR and PURCHASER shall lay no claim to these rights under this Agreement for past or future usage. PURCHASER also acknowledges that VENDOR can re -designate or change areas of service of noted surplus water for future agreements. VENDOR maintains water -measuring equipment at the Duff Water Treatment Plant for recording the amount of water withdrawn from the Rogue River covering all valid water rights and all data acquired is of public record. VENDOR also maintains master water meters at three locations noted in Article 2 for the purposes of recording the amount of water used by PURCHASER. VENDOR provides on a monthly bill the usage of water by PURCHASER pertaining to this Agreement. ARTICLE 6. PAYMENTS TO VENDOR PURCHASER shall pay monthly to VENDOR for all water thus purchased from VENDOR at VENDOR's regularly scheduled rates for water service to incorporated cities in effect at a particular time. VENDOR reserves the right to change said rates at any time upon sixty (60) days written CITY OF CENTRAL POINT - Agreement Page 3 of 6 notice to PURCHASER. VENDOR agrees to make reasonable effort to notify PURCHASER annually, at least two months prior to the end of PURCHASER's fiscal year of VENDOR's opinion as to the need for rate adjustment during the subsequent fiscal year. ARTICLE 7. TERM OF AGREEMENT VENDOR has every intention of selling water to PURCHASER for as long as PURCHASER desires to purchase from VENDOR and VENDOR has surplus water to sell. In furtherance of that understanding, VENDOR agrees to negotiate in good faith with PURCHASER for renewal of the Agreement. In the event that VENDOR does not renew the Agreement, then the current Agreement will continue in effect as long as reasonably necessary to allow PURCHASER to secure other sources of water. However, Section 19 of the Charter of the City of Medford limits the term of water service contracts to 20 years and, therefore, the obligations of VENDOR under this Agreement shall not, under any circumstances, exceed that period of time. PURCHASER shall make no assignment of the rights or interests herein granted without written permission. In the event of any occurrence rendering PURCHASER incapable of performing under the Agreement, any successor of PURCHASER, whether the result of legal process, assignment, or otherwise, shall succeed to such right of PURCHASER hereunder. The term of this Agreement shall be five (5) years from the date hereof. PURCHASER may, at its option, extend the term for three additional five-year periods, which periods would run through 2015, 2020, and 2025 respectively. Written notice of the election to exercise a five-year extension of the contract must be given to VENDOR not later than January 1st of the year in which the agreement would expire if there was no extension. ARTICLE 8. WATER CURTAILMENT PLAN VENDOR, on June 15,1992, passed Resolution No. 710 adopting a Water Curtailment Plan for VENDOR's service area. Sections IV and V of this plan call for the curtailment of water use by all types of customers using water provided by VENDOR during periods of drought or emergency. PURCHASER, on August 11, 1992, adopted a similar ordinance, No. 4-70. The City of Medford's Water Curtailment Plan is hereby incorporated into and made a part of this Agreement by this reference. During emergency or drought periods, VENDOR shall give PURCHASER as much advance warning as possible prior to curtailment of water supplies. The level of curtailment shall be determined by VENDOR based on the severity of the proposed shortage. PURCHASER shall be responsible for enforcing the curtailment plan in its service area. ARTICLE 9. INDEMNITY AND COMPLIANCE WITH LAWS AND REGULATIONS To the extent PURCHASER is to perform work pursuant to the terms of this Agreement, PURCHASER agrees that it will be solely responsible for any damage or trespass to or upon adjacent property or injury thereto and any and all other liability or damages resulting from or in connection with its operation, and that it will hold VENDOR harmless from any claim, liability, damages or obligation arising therefrom and indemnify VENDOR forthe amount of any obligation it may incur on account thereof or arising therefrom. Provided, however, that PURCHASER shall not CITY OF CENTRAL POINT — Agreement Page 4 of 6 be required to indemnify VENDOR against liability for damage arising out of death or bodily injury to persons or damage to property caused in whole or in part by the negligence of VENDOR, except to the extent that the death or bodily injury to persons or damage to property arises out of the fault of PURCHASER or PURCHASER's agents, representatives or subcontractors. To the extent PURCHASER is to perform work pursuant to the terms of this Agreement, PURCHASER shall at all times observe and comply with all federal and state laws and local ordinances and regulations, in any manner affecting the conduct of the work, and all such orders or decrees as exist at the present and those which may be made or enacted later by bodies or tribunals having any jurisdiction or authority over the work, and shall indemnify and save harmless VENDOR and all its officers, agents and servants against any claim or liability arising or based on the violation of any such law, ordinance, regulation, order or decrees, whether bythemselves or their employees. ARTICLE 10. PARTIAL INVALIDITY If any term, covenant, condition, or provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect, and shall in noway be affected, impaired, or invalidated thereby. ARTICLE 11. INTEGRATION This Agreement represents the entire understanding of VENDOR and PURCHASER as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered herein. This Agreement may not be modified or altered except in writing signed by both parties. ARTICLE 12. JURISDICTION This Agreement shall be administered and interpreted under the laws of the State of Oregon. Jurisdiction of litigation arising from this Agreement shall be in that state. In the event any suit, action or other proceeding is brought with regard to this Agreement, or to enforce any of the provisions hereof, the prevailing party in any such suit, action or other proceeding, or any appeal therefrom, shall be entitled to reasonable attorney's fees. ARTICLE 13. DEFAULT It is further understood and agreed by and between the parties hereto that this Agreement is conditioned upon the faithful performance by PURCHASER of all terms and provisions hereof, which, on its part, are to be kept and performed and any failure to do so or any default which is not remedied within ten (10) days after the mailing of written notice from VENDOR to PURCHASER specifying the particulars of the alleged default, shall give VENDOR the right to discontinue furnishing water as herein provided and VENDOR may, at its option, terminate this Agreement. Notwithstanding the foregoing, PURCHASER shall not be deemed in default hereunder R the default is of such a nature that it cannot be remedied within ten (10) days and PURCHASER proceeds in good faith to cure such default. CITY OF CENTRAL POINT — Agreement Page 5 of 6 IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed by their proper officers the day and year first above written. 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