20-R-131 - Agreement with Cibolo Creek Municipal Authority for the lease of real property for the operations and maintenance of wastewaterRESOLUTION NO. 20 -R -131
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING THE CITY MANAGER TO ENTER
INTO AN AGREEMENT WITH CIBOLO CREEK MUNICIPAL
AUTHORITY FOR THE LEASE OF REAL PROPERTY FOR THE
OPERATIONS AND MAINTENANCE OF A WASTEWATER
LIFTSTATION FACILITY
WHEREAS, the City of Schertz is a home rule municipality incorporated in Guadalupe
County pursuant to the Statues of the State of Texas, and as such is authorized to buy, sell, and
lease property; and
WHEREAS, the Cibolo Creek Municipal Authority is a municipal utility district
authorized to enter into contracts related to real property; and
WHEREAS, the City of Schertz owns real property along Bubbling Springs road; and
WHEREAS, the Cibolo Creek Municipal Authority has continuously operated a Regional
Wastewater liftstation facility on real property owned by the City of Schertz; and
WHEREAS, the City of Schertz and Cibolo Creek Municipal Authority desire to enter into
an agreement to continue a lease agreement between one another; and
WHEREAS, the City of Schertz finds that leasing the real property would not interfere or
impede its operation; and
WHEREAS, the City Council has determined that it is in the best interest of the City to
enter into this lease agreement with Cibolo Creek Municipal Authority; therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to enter into a lease
agreement with Cibolo Creek Municipal Authority, for the lease of real property owned by
the City of Schertz per the attached agreement.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the laws
of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
PASSED AND ADOPTED, this 10th day of November, 2020.
ATTEST:
CITY OF SCHERTZ, TEXAS
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Mayo alph dtffierrez
Git� Secretary, Brenda Dennis
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NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING
INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN
REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS:
YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
LEASE FOR WASTEWATER TREATMENT FACILITIES SITE
BETWEEN
CIBOLO CREEK MUNICIPAL AUTHORITY
AND
CITY OF SCHERTZ
This LEASE FOR WASTEWATER TREATMENT FACILITIES SITE (this "Lease ") is
made and entered into by and between the CIBOLO CREEK MUNICIPAL AUTHORITY
(the "Authority "), a conservation and reclamation district created under Article XVI, Section 59
of the Texas Constitution and Chapter 8166 of the Texas Special District Local Laws Code, as
amended, and the CITY OF SCHERTZ (the "City "), a political subdivision of the state of
Texas. Unless otherwise provided in this Lease, the Authority and City shall be referred to
herein individually as a "Party," or collectively, as the "Parties."
RECITALS
WHEREAS, the Authority owns and operates a regional wastewater system in the
Cibolo Creek watershed (the "Authority System ");
WHEREAS, the Authority owns certain facilities associated with the Authority System
that are located on real property owned by the City for which the Authority and the City do not
currently have an agreement regarding the Authority's use of such real property;
WHEREAS, as a wholesale wastewater customer of the Authority, the City desires to
lease to the Authority the real property on which the Authority's facilities are sited;
NOW THEREFORE, in consideration of the mutual covenants, and agreements of this
Lease, and other good and valuable consideration, the City leases to the Authority, and the
Authority hereby agrees to assume responsibility of the leased premises, including but not
limited to wastewater treatment and collection facilities, reclaimed water conveyance facilities,
wastewater lines, reclaimed water lines, and a lift station owned and operated by the Authority
(the "Facilities "), and the lands reasonably necessary to allow for the operation of the Facilities,
with said lands being more particularly described in Exhibit A attached hereto.
AGREEMENT
Article I.
TERM OF THE LEASE
Section 1.01 Term of Lease.
The term of this Lease is ninety -nine (99) years, beginning on the date this Lease is fully
executed and ending ninety-nine (99) years from the anniversary date of this Lease, unless
terminated sooner as provided below. The Authority shall pay an annual rental rate of One
Dollar, which shall be payable on the anniversary date of the execution of this Lease for each
succeeding ninety -nine (99) years. Failure to timely pay the above One Dollar Lease fee shall not
be considered a material breach of this Lease, unless the City has provided the Authority with
written notice that they are in default of that provision and the Authority has failed to cure the
default within sixty (60) days of the date that they receive notice of non - payment.
Section 1.02 Termination.
This Lease shall terminate upon the occurrence of any one of the following events:
(a) ninety-nine (99) years from the date of the execution of this Lease;
(b) at such time as the Authority, in mutual agreement with the City, determines that the
Facilities are no longer necessary to provide wastewater treatment services and reclaimed
water services;
(c) upon mutual written agreement of the Parties;
(d) upon the occurrence of any act of default contained in Article'IV, which remains is not
remedied for a period of sixty (60) days from the date of written notice of default is
received from the Party.
At such time as this Lease is terminated, as set forth above, the Authority shall return possession
and operation of the Facilities to the City in good condition. The Authority shall be held
responsible for the condition of the Facilities at the time the Lease is terminated, including any
deterioration, decay, and /or damage to the Facilities and related structures as a result of
negligence and /or intentional misconduct of the Authority.
Article II.
OPERATION AND MAINTENANCE
Section 2.01 Operation and Maintenance.
(a) The Authority will, throughout the Lease term, at its own expense, operate,
maintain, and repair the Facilities and associated improvements in good order and condition,
including but not limited to making all repairs as necessary to keep the Facilities in operation.
All maintenance, repairs, and replacements required hereunder shall be performed promptly so as
to ensure the continued operation of the Facilities. The Authority's obligations to operate, repair,
and maintain the Facilities shall not extend any duty or obligation to operate, repair, or maintain
any of the City's wastewater or reclaimed water facilities, which duties and obligation shall
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remain the sole responsibility of the City. At such time as repairs are needed to be made to the
Facilities, the Parties agree to cooperate with each other in order to facilitate the repair of the
Facilities.
(b) The Authority may, to the extent required to ensure the continued and
uninterrupted operation of the Facilities make alterations or improvements to the Facilities as
they deem necessary in its sole discretion. Any alterations or improvements made to the
Facilities during the term of this Lease shall become the property of the City upon the
termination of the Lease.
(c) The City shall remain solely responsible for providing wastewater service to its
customers, which wastewater service may involve the use of the Facilities for transporting the
wastewater to the Authority's wastewater treatment plant. Nothing contained in this Lease shall
impose any duties or obligation upon the Authority to provide, or assume for the provision of
wastewater treatment service to individual customers of the City. The Parties specifically
acknowledge and agree that nothing contained in this Lease is intended to confer any rights on
any third parties under this Lease, including, but not limited to the City's customers, and shall
not create any rights as third party beneficiaries for any party not a signatory to this Lease.
Article III.
INSURANCE AND DAMAGES
Section 3.01 Insurance. The Authority will self - insure the Facilities against loss or damage in
an amount sufficient to repair or replace the Facilities in the event of a total loss. The Authority
shall provide general liability coverage and works compensation coverage against any accidents,
injuries or damages occurring on the leased premises during the term of this Lease, in an amount
consistent with the Authority's general liability coverage and workers compensation coverage
the Authority System.
Section 3.02 Damages, Duty to Make Repairs. If the leased premises, or any structures, or
improvements located thereon, are damaged or destroyed by any cause or casualty, the Authority
shall immediately give the City written notice of the damage or destruction, including description
of the damage and to the extent known by the Authority, the cause of the damage. Upon any
such partial or total destruction of the premises as may require the cessation of operations of the
Facilities, the Authority shall take all steps necessary to provide for the temporary operation of
alternative facilities so as to ensure the continued operation of the City's wastewater system.
The City shall fully cooperate with the Authority and take whatever steps are necessary to ensure
the continued operation of the City facilities.
Article IV.
DEFAULT
Section 4.01 Authorit-, Default. The Authority shall be deemed to be in default of its
obligations under the terms of this Lease, if, within sixty (60) days of the date of receipt of notice
of any of the following acts of default, the Authority has failed to cure said default. An act of
default by the Authority shall mean:
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(a) failure to provide for the continued operation of the Facilities in accordance with
all applicable local, state, and federal regulations;
(b) failure to reconstruct or repair any damages to the Facilities caused by any
casualty loss;
(c) failure to properly repair or maintain the Facilities;
(d) failure to provide insurance coverage as referenced in Article III.
Article V.
GENERAL PROVISIONS
Section 5.01 Assig_nabilit N . Assignment of this Lease by either Party is prohibited without the
prior written consent of the other Party, which consent shall not be unreasonably withheld,
delayed or conditioned; provided however that City hereby consents to the assignment of this
Lease to a conservation and reclamation district authorized by Article XVI, Section 59 of the
Texas Constitution created for the purpose of owning and operating the Authority System and
acting as successor in interest to Authority.
Section 5.02 Amendment. This Lease may be amended or modified only by written
agreement duly authorized by the respective governing bodies of the City and the Authority and
executed by duly authorized representatives of each.
Section 5.03 Necessaa Documents and Actions. Each Parry agrees to execute and deliver all
such other and further instruments and undertake such actions as are or may become necessary or
convenient to effectuate the purposes and intent of this Lease.
Section 5.04 Entire A,,reement. This Lease constitutes the entire agreement of the Parties and
this Lease supersedes any prior or contemporaneous oral or written understandings or
representations of the Parties regarding the Lease.
Section 5.05 Applicable Law. This Lease will be construed under and in accordance with the
laws of the State of Texas.
Section 5.06 Venue. All obligations of the Parties created in this Lease are performable in
Guadalupe County, Texas, and venue for any action arising under this Lease will be in
Guadalupe County, Texas.
Section 5.07 Duplicate Ori <ginals. This Lease may be executed in duplicate originals each of
equal dignity.
Section 5.08 Notices. Any notice required under this Lease may be given to the respective
Parties by deposit in regular first -class mail or by hand - delivery and by email to the address of
the other Party shown below:
City:
City of Schertz
Schertz, Texas 78266
Email:
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Attention:
Authority:
Cibolo Creek Municipal Authority
P.O. Box 930
Schertz, Texas 78154
Email: cdb @ccmatx.org
Attention: General Manager
Notices shall be deemed received on the date of delivery or within three calendar days of deposit
in first -class mail.
Section 5.09 Consents and Approvals. Wherever this Lease requires any Party, or its agents
or employees to provide a consent, approval or similar action, the Parties agree that such consent,
approval or similar action will not be unreasonably withheld or delayed.
Section 5.10 Severabiliti . Should any court declare or determine that any provisions of this
Lease is invalid or unenforceable under present or future laws, that provision shall be fully
severable; this Lease shall be construed and enforced as if the illegal, invalid, or unenforceable
provision had never comprised a part of this Lease and the remaining provisions of this Lease
shall remain in full force and effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance from this Lease. Furthermore, in place of each such
illegal, invalid, or unenforceable provision, there shall be added automatically as a part of this
Lease a provision as similar in terms to such illegal, invalid, or unenforceable provision as may
be possible and be legal, valid, and enforceable. Texas law shall govern the validity and
interpretation of this Lease.
Section 5.11 Force Maieure. If any Party is rendered unable, wholly or in part, by force
majeure to carry out any of its obligations under this Lease, other than an obligation to pay or
provide money, then such obligations of that Parry to the extent affected by such force majeure
and to the extent that due diligence is being used to resume performance at the earliest
practicable time shall be suspended during the continuance of any inability so caused to the
extent provided but for no longer period. Such cause, as far as possible, shall be remedied with
all reasonable diligence. Force majeure means acts of God, strikes, lockouts, or other industrial
disturbances, acts of the public enemy, orders of any kind of any governmental entity other than
Authority or any civil or military authority, acts, orders or delays of any regulatory authorities
with jurisdiction over the parties, insurrections, riots, acts of terrorism, epidemics, landslides,
lightning, earthquakes, fires, hurricanes, floods, washouts, droughts, arrests, restraint of
government and people, civil disturbances, explosions, breakage or accidents to machinery,
pipelines or canals, or any other conditions which are not within the control of a party. It is
understood and agreed that the settlement of strikes and lockouts shall be entirely within the
discretion of the affected Party, and that the above requirements that any force majeure shall be
remedied with all reasonable dispatch shall not require the settlement of strikes and lockouts by
acceding to the demand of the opposing Party or Parties when such settlement is unfavorable to it
in the judgment of the affected Party.
Section 5.12 Good Faith. Each Party agrees that, notwithstanding any provision herein to the
contrary (i) it will not unreasonably withhold or condition or unduly delay any consent, approval,
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decision, determination or other action which is required or permitted under the terms of this
Lease, and (ii) it will act in good faith and shall at all times deal fairly with the other Party.
Section 5.13 Authoritti of Parties Executing Lease. ValiditN'. By their execution, each of the
individuals executing this Lease on behalf of a Party represents and warrants to the other Party
that he or she has the authority to execute the document in the capacity shown on this document.
Each of the Parties further represent and warrant that this Lease constitutes a valid and binding
contract, enforceable against it in accordance with its terms.
Section 5.14 Exhibits. The following exhibit, attached to this Lease, is incorporated into this
Lease as if fully set forth:
Exhibit "A ": Legal Description of Leased Premises
Section 5.15 Effective Date. This Lease will be effective from and after the last date of due
execution by all Parties.
Section 5.16 Recitals. The recitals contained in the preamble of this Lease and the attachments
hereto are hereby found to be true, and such recitals and attachments are hereby made a part of
this Lease for all purposes.
(Signatures on following pages)
0
CIBOLO CREEK MUNICIPAL AUTHORITY
Kenneth Greenwald, Board President Date
ATTEST:
Reginna Agee, Treasurer
STATE OF TEXAS
COUNTY OF GUADALUPE
This instrument was acknowledged before me on this day of , 2020,
by Kenneth Greenwald, President of the Board of Directors of Cibolo Creek Municipal
Authority, a conservation and reclamation district created under Article 16, Section 59, of the
Texas Constitution, on behalf of said conservation and reclamation district.
Notary Public, State of Texas
Printed Name of Notary:
My Commission Expires:
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CITY OF SCHERTZ, TEXAS
Date
ATTEST:
STATE OF TEXAS
COUNTY OF GUADALUPE
This instrument was acknowledged before me on this day of , 2020,
by , of the City of Schertz, a political subdivision of the State
of Texas, on behalf of said municipality.
Notary Public, State of Texas
Printed Name of Notary:
My Commission Expires:
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EXHIBIT A
Legal Description of Leased Premises