HomeMy WebLinkAbout174151
2 ORDINANCE NO. 17,415
3 214
4
5 AN ORDINANCE OF THE BOARD OF DIRECTORS OF THE
6 CITY OF LITTLE ROCK, ARKANSAS, AUTHORIZING THE
7 MAYOR AND CITY CLERK TO ENTER INTO AN
8 AGREEMENT FOR THE SALE OF WATER TO THE CITY
9 OF BENTON, ARKANSAS.
10
11
12 WHEREAS, the City of Benton ( "Benton ") is a city of the first class created under the laws
13 of the state of Arkansas, and is interested in buying water from the City of Little Rock, Arkansas
14 ("Little Rock ") acting through the Little Rock Municipal Water Works (the "Water Works ") to serve
15 the needs of Benton's customers; and
16 WHEREAS, Benton, Little Rock, and Water Works have negotiated an Agreement for the
17
18 sale of water to Benton (the "Agreement ") under specific terms and conditions contained in the
19 Agreement; with said Agreement approved by the Water Works Board of Commissioners; and
20 WHEREAS, pursuant to Ark. Code Ann. § 14- 234 -108 (Michie 1987), the Water Works
21 Board of Commissioners now requests approval of the Agreement by the Little Rock Board of
22 Directors and to authorize the Mayor and City Clerk to execute the Agreement on behalf of Little
23 Rock.
24
25 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS OF
26 THE CITY OF LITTLE ROCK, ARKANSAS:
27 SECTION 1. The Agreement to serve Benton, approved and recommended by the Water
28 Works Board of Commissioners on September 13, 1996, is approved by thelittle Rock Board of
29 Directors as amended.
30
SECTION 2. The Mayor and City Clerk are hereby authorized to execute the Agreement
31
32 on behalf of the City of Little Rock, Arkansas attached as Exhibit A to this Ordinance.
33
34
35
36
(Received corrected Agreement Exhibit A 4- 10.97.)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
PASSED: March 18, 1997
ATTEST:
(a dLAd da4a.0 C—
ROBBIE HANCOCK
CITY CLERK
APPROVED AS TO FORM:
THOMAS M. CARPENTER
CITY ATTORNEY
-2-
APPROVED: `
qi44A
J DAILEY
MAYOR
215
m Nam m m m stm m m m
Faun A.- -Ord. 1/17,415
AGREEMENT
216
This Agreement is entered into this day of 1997 between the City
of Little Rock, Arkansas ("Little Rock ") for its use and benefit and for the use and benefit of the
Little Rock Municipal Water Works ("Water Works ") and the City of Benton, Arkansas ('Benton').
1:Y_Ythl**13IY;4
WHEREAS, Little Rock is a city of the first class and owns the Water Works and appoints
the Water Works Board of Commissioners; and
WHEREAS, the Water Works Board of Commissioners operates the Water Works; and
WHEREAS, Benton is a city of the fast class, and is interested in buying water from Little
Rock to serve the needs of its customers; and
WHEREAS, Little Rock is interested in selling water to Benton under the terms and
conditions of this Agreement;
NOW THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements contained and set forth herein, Little Rock agrees to sell to Benton,
and Benton agrees to purchase from Little Rock, potable water upon the following terms and
conditions:
1. (a) The initial quantity of water (the "Initial Water") sold under this Agreement
is two million (2,000,000) gallons per day ( "2mgX ). Benton shall have the option to purchase an
additional five million (5,000,000) gallons per day under this Agreement in increments of five
hundred thousand (500,000) gallons per day not to exceed one million (1,000,000) gallons per day
in any one calendar year. Notice of the exercise of the foregoing option shall be given by Benton
A:A%NMN.
• 1
M.M M M E&M M M M stm M M M M
in writing to Water Works stating the amount of additional water to be purchased under this
Agreement (the "Additional Water"), and the notice shall be given at least one year prior to delivery
217
of the Additional Water.
(b) This is a take -or -pay contract, and as long as Water Works can deliver water to
Benton under this Agreement, Benton shall take a minimum of 2mgd and the amount of Additional
Water upon the exercise of the option described in subparagraph (a) (the "Minimum Volume"). For
any given day, if Benton does not receive the Minimum Volume which it is obligated to receive
during any day, and was not prevented from receiving water by force majeure or Water Works'
failure or inability to deliver water pursuant to the provisions of this Agreement, Benton shall pay
Water Works the rate set forth in this contract for the Minimum Volume Benton is obligated to take
per day under this Agreement.
(c) The term "day" as used herein shall mean the twenty-four (24) hour period ending
at midnight.
2. Benton agrees to pay for said water for the first twelve months of this Agreement
and thereafter at the rate paid from time to time by outside city customers of the Water Works for
meter size and quantity of water consumed as fixed by the Little Rock Board of Directors. It is
expressly agreed that Benton's obligation to pay for water pursuant to this Agreement is a special
obligation payable solely from revenues derived from the operation of the Benton water system and
Benton shall not be obligated in any manner to make any payments from its general, or any other,
revenues.
3. Promptly, after the first day of each month, the Water Works shall submit an
itemized monthly statement to Benton for water delivered during the previous calendar month.
A: \gF117pN.
2
M= Ub m M � = M
Benton shall remit payment for water to the Water Works on or before the tenth (10th) day of the.
month in which the statement is submitted. If Benton does not remit payment on or before the tenth
(10th) day of the month, a penalty equal to ten percent (10 %) of the total payment amount due shall 218
be added to such payment, and if not paid on or before the fifteenth (15th) day of the month in
which the statement is submitted, the Water Works may discontinue delivery of water to Benton and
may continue to deny delivery to Benton until it pays the amount due.
4. The water sold pursuant to this Agreement shall be delivered to Benton within Little
Rock at the following point of delivery and others which may be later established by the parties (the
"Point of Delivery"): The Point of Delivery shall be at or near the Little Rock City Limits in the
Otter Creek Subdivision area
5. (a) Benton shall, at its expense:
(1) obtain necessary easements and construct a transmission line (the
"Transmission Line ") between Benton and the Point of Delivery;
(2) obtain a site for and construct a meter station (the "Meter Station ") at
the Point of Delivery containing a flow meter or meters and other necessary equipment required by
and acceptable to the Water Works; and,
(3) construct and install pipelines, valves, pumps, appurtenant equipment,
accessories, and other facilities required by and acceptable to the Water Works (the "Equipment").
(b) The parties agree that the design and materials used in the construction and
installation of the Meter Station and Equipment shall conform to specifications of the Water Works.
(c) The parties further agree that all easements, or interests in real property, of any
nature whatsoever, acquired for the Meter Station and Equipment shall be acceptable to the Water
A:WNfoN.
3
_,___I..___§%....__..
Works.
(d) Benton covenants and agrees that its water system shall be designed and
constructed to maintain adequate storage for all of its customer needs, including, but not limited to,
219
peak customer demands, fire flows, and interruption of supply.
(e) If construction and installation of additional Equipment are required to provide
the Initial Water or Additional Water, Benton shall at its expense:
(1) complete the construction and install the additional Equipment in
conformance with the specifications of the Water Works, and this paragraph 5, prior to delivery of
the Initial Water or Additional Water, it being the intent of this paragraph to require Benton to
provide Equipment adequate to meet their needs;
(2) obtain necessary easements and construct Equipment between the Point
of Delivery and the point or points designated by Water Works within the city limits of Little Rock
where the existing Little Rock infrastructure affords the most practicable location to connect Batton
to the Little Rock water system for the purposes of this Agreement; and
(3) the parties agree that the design and materials used in the construction
and installation of the additional Equipment shall conform to specifications of the Water Works.
(f) At a minimum, but not to the exclusion of any other requirement, these documents
shall guarantee the unfettered right of Little Rock Water Works personnel, or both, to have access
to the Facilities at any time for any purpose deemed necessary by Water Works.
6. Benton agrees that it will take delivery of water at the Point of Delivery at a time
or times each day to be designated by the Water Works, it being the intent of the parties that Benton
shall take delivery; if required by the Water Works, during off -peak periods; as used herein "Off
A:18FNlY1N. "
4
_...__I. MMMI_
Peak" shall mean the period of time each day between midnight and 6:00 o'clock a.m. and between
10:00 o'clock p.m. and midnight.
In the event Little Rock or Water Works determines it necessary or advisable by
reason of an emergency or routine operation, maintenance, repair or replacement of any part of the
Water Works' facilities, the Water Works upon due notice to Benton shall have the right and option
to restrict delivery to Benton in the same degree as its other wholesale customers affected by the
same reason for restriction..
8. Benton hereby indemnifies, releases and forever discharges Little Rock and the Water
Works and waives any right of or claim for damages of any kind or nature whatsoever under this
Agreement arising out of or resulting from force majeure, water quality, inadequate or excessive
pressure, or restriction, interruption or stoppage of the flow of water for any reason whatsoever,
including, but not limited to the negligence of Little Rock or of the Water Works. The term "Force
Majeure" as used in this Agreement shall mean emergency conditions reasonably beyond the control
of Little Rock and the Water Works including, without limitation, the following: strikes, lockouts
or other industrial disturbances; acts of public enemies; order of any kind of the government of the
United States, or any state, or military authority, or any of their departments, agencies, or officials;
fires; floods; pollution; earthquakes; tornadoes; storms; other acts of God; breach of contract by any
vendor, contractor, subcontractor, laborer or materialman; unforeseen failure of, or damage to
equipment or facilities; or any other similar cause or event not reasonably within the control of the
Water Works. All loss or damage to Benton, except its obligation in paragraph 1 (b) hereof to pay
for Minimum Volume, or to its water users and customers, arising from Force Majeure, shall be
sustained by Benton: Benton shall save Little Rock and the Water Works harmless from any damage
A:qBFNTON.
5
220
M. M
M M
M M r M= ME
MEW
to person or property as a result of the performance of this Agreement by the Water Works or its
agents and employees.
9. The term of this Agreement shall be twenty (20) years, and shall commence on the 2 21
date of the Engineer's final inspection certifying completion of construction of the Meter Station
and Equipment required for the Initial Water, and shall be renewable automatically for like periods
unless terminated by either party. Notice of termination shall be given in writing one year prior to
the end of the term of any renewal term; provided, however, that if the current sources of water for
the Water Works prove inadequate for any reason whatsoever, then, in such event, this Agreement
may be terminated by the Water Works or Little Rock giving Benton two (2) years notice.
10. The parties agree that the Water Works does not guarantee to provide any certain
water pressure and that the transfer of title to water delivered pursuant to this Agreement is subject
to all the terms and conditions contained herein. Moreover, providing any certain water pressure
during the term of this Agreement shall not be construed as a guarantee that any certain water
pressure will be provided at any future time during the term of this Agreement.
11. On the dates of the Engineer's final inspections certifying completion of construction
of the Meter Station, the Equipment, and any additional Equipment described in paragraph 5 herein,
Benton shall convey by general warranty deed to Little Rock, for the use and benefit of the Water
Works, the Meter Station, Equipment, and any additional Equipment, and all related real property,
easements, right of way easements, fiee and clear of all claims, liens and encumbrances of any kind
whatsoever (the "Conveyances'). Benton hereby covenants that the Conveyances will not violate
any obligation, indenture, ordinance, covenant or contract to which Benton is a party. Benton
hereby covenants that it has good and marketable title to the property conveyed, and the property
A: \BFNIVN.
agreement, charge, lien or encumbrance. Benton hereby indemnifies and holds Little Rock and the
222
Water Works harmless from any and all demands, claims, actions, causes of action and damages,
including attorneys' fees, arising out of or in any way connected with the Conveyances and the
property conveyed thereby.
12. This agreement and the rights hereunder shall not be assigned or transferred by
Benton, but shall be binding upon the successors of either party.
13. Benton covenants and agrees to pay any and all taxes -- levied by the United States,
the State of Arkansas, or any other legally constituted taxing authority -- on the sale of water to
Benton.
14. The Water Works anticipates charging its customers a development charge (the
"Development Charge") to develop a future source of raw water supply and additional water
treatment facilities, and paying the revenues from the Development Charge to the Little Rock
Municipal Water Works Reserve Fund ("the Reserve Fund"). If the Water Works charges its
: customers the Development Charge, Benton shall charge its customers a development charge equal
to 7 /12ths of the Development Charge beginning at the same time and under the same terms and
conditions as charged by the Water Works, and pay the revenue from that development charge to
the Reserve Fund.
15. (A) Benton covenants and agrees that it will not, without prior written approval of
the Little Rock Board of Directors; supply or deliver water to any person or customer outside the
city limits of Benton, except as provided herein.
( B) Benton covenants and agrees that it will not, without prior written approval of
7
conveyed is not subject to
any note, indenture, mortgage,
conditional sales agreement,
loan
agreement, charge, lien or encumbrance. Benton hereby indemnifies and holds Little Rock and the
222
Water Works harmless from any and all demands, claims, actions, causes of action and damages,
including attorneys' fees, arising out of or in any way connected with the Conveyances and the
property conveyed thereby.
12. This agreement and the rights hereunder shall not be assigned or transferred by
Benton, but shall be binding upon the successors of either party.
13. Benton covenants and agrees to pay any and all taxes -- levied by the United States,
the State of Arkansas, or any other legally constituted taxing authority -- on the sale of water to
Benton.
14. The Water Works anticipates charging its customers a development charge (the
"Development Charge") to develop a future source of raw water supply and additional water
treatment facilities, and paying the revenues from the Development Charge to the Little Rock
Municipal Water Works Reserve Fund ("the Reserve Fund"). If the Water Works charges its
: customers the Development Charge, Benton shall charge its customers a development charge equal
to 7 /12ths of the Development Charge beginning at the same time and under the same terms and
conditions as charged by the Water Works, and pay the revenue from that development charge to
the Reserve Fund.
15. (A) Benton covenants and agrees that it will not, without prior written approval of
the Little Rock Board of Directors; supply or deliver water to any person or customer outside the
city limits of Benton, except as provided herein.
( B) Benton covenants and agrees that it will not, without prior written approval of
7
1
M.m m Sam m stm m m
the Water Works, sell water to, or connect to the Benton water system, any one new city customer
whose average daily consumption exceeds eight percent (8 %) of the volume of water required, at
the time of such sale or connection to supply all of Benton's customers at the time of peak daily 223
consumption of Benton's water system. The parties agree that Benton may add the Aluminum
Company of America (ALCOA) plant facilities on Alcoa Road east of Benton to Benton's system
without further permission or approval by the Little Rock Board of Directors or the Water Works
and without requiring the pre - annexation agreement which would be otherwise required by
subparagraph 15(D) below.
(C) Benton further agrees that it will not resell the water purchased pursuant to this
agreement to any other municipality, improvement district, or water association without prior
written approval of the Little Rock Board of Directors, except as provided herein.
(D) Benton covenants and agrees that it will not sell water to or connect to the Benton
water system any new customer outside the city limits of Benton unless that customer is both located
in the extra- territorial planning jurisdiction of Benton and signs an agreement to petition for
annexation to Benton (pre - annexation agreement).
16. Little Rock recognizes that Benton currently sells water by contract to four rural
water associations: the West Bauxite Water Association ("West Bauxite "), the Tull Water
Association ( "Tull "), the Southwest Water Users Association ( "Southwest "), and the Salem Water
Users Association ("Salem") and that they may continue to do so under this Agreement under the
following conditions:
( A ) Contracts with Tull, Southwest and Salem in effect as of the date of this
Agreement are not restricted in any manner, but may not be extended or renewed, except as follows;
A1BFN7p4. 8
( B ) Tull and Southwest. Upon the expiration of current contracts with Tull and
Southwest, new contracts must require those systems to define a geographic service area within
which they will sell water and prohibit them from reselling water to other rural systems or to
individuals outside of their defined geographic service area;
( C ) Salem. Upon the expiration of the current contract with Salem, a new contract
must require that the area served by the Salem system either (1) annex to the City of Benton, (2)
incorporate as their own municipality, or (3) create an unincorporated urban area development plan
which must contain at least:
(a) a defined geographic boundary beyond which water would not be extended and to which
all other plans would apply;
(b) a master street plan;
( c ) a land use and development plan;
(d) a sewer improvement plan; and
(e) a method to implement and enforce those plans through the Saline County government,
Benton, or both, as may be agreed upon.
(D) West Bauxite. Under the terms and conditions of the existing contract with West
Bauxite is due to expire on or about 2008, Benton agrees to deny to West Bauxite the right to resell
water to any larger user, municipality or non -profit water association except under the terms of
section 15 of this agreement.
17. All notices hereunder shall be in writing and shall be deemed to have been duly given
when sent by registered or certified mail, postage prepaid, as follows:
If to Little Rock:
A:�BENNTUN. 9
224
L.R. Municipal Water Works
P.O. Box 1789
Little Rock, Arkansas 72203
ATTN: Waterworks Manager
If to Benton:
Benton Water Works
Benton, Arkansas
ATTN: Manager
City of Little Rock
City Hall, 500 West Markham
Little Rock, Arkansas 72201
ATTN: City Manager
City of Benton
222 West South Street
Benton, Arkansas
ATTN: Mayor
18. Benton agrees to abide by the Hiles and regulations concerning the consumption of
water published from time to time by the Water Works Board of Commissioners; and the rules and
regulations concerning operation, maintenance and protection of public water supplies published
from time to time by the Arkansas Department of Health. The Water Works shall have the right,
if it deems necessary or appropriate, to inspect all individual tie-ons to the Benton water system and
to charge an inspection fee of twenty dollars ($20.00) per hour.
19. The parties recognize that the furnishing of potable water is a governmental
function, and this Agreement shall be performed by the parties hereto in their governmental
capacity.
20. The patties agree that in the event any term or provision of this Agreement shall be
held to be invalid, illegal or unenforceable, all other terms and provisions of this Agreement shall
remain in full force and effect, and this Agreement shall be construed as if not containing the
particular provision or provisions held to be invalid.
21. Water service may be terminated if Benton fails to fully comply with all of the terms
and provisions stated herein. Termination of water service may occur only after actual notice is
given of the nature of the breach.
A:�N.
10
225
IN WITNESS WHEREOF, the parties hereto have executed this Agreement:
BOARD OF COMMISSIONERS
LITTLE ROCK MUNICIPAL WATER WORKS
Attest: 226
By:
Chairman
Secretary
CITY OF LITTLE ROCK, ARKANSAS
Attest:
By:
Mayor
City Clerk
CITY OF BENTON, ARKANSAS
Attest:
By:
Mayor
City Clerk