Res 106-2023 Raw Water Purchase Contract with OPS, LLC 09/19/2023 Resolution No. 106-2023
Resolution authorizing the City Manager to Execute a Raw Water
Purchase contract with Oklaunion Power Station LLC
WHEREAS, the City of Wichita Falls has historically provided raw water to the
Oklaunion power plant previously owned by American Electric Power; and
WHEREAS, American Electric Power has sold the facilities to Oklaunion Power
Station LLC (OPS); and
WHEREAS, OPS desires to expand the use of the raw water to include industrial
process water; and
WHEREAS, the City has agreed to allow for these expanded uses of the water.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
The City Manager is authorized to execute the Raw Water Purchase contract with
Oklaunion Power Station LLC in a form as attached and approved by the City Attorney.
PASSED AND APPROVED this the 19th day of September 2023.
MAYOR
ATTEST:
City Clerk
OKLAUNION POWER STATION,L.L.C.
RAW WATER PURCHASE CONTRACT
THIS CONTRACT for the sale and purchase of raw water(the"Contract")is entered into as of the day
of ,2023,(the"Effective Date")between the City of Wichita Falls,Texas("City"),
Wichita County Water Improvement District#2, hereinafter referred to as "Owners,"and Oklaunion Power
Station,LLC hereinafter referred to as"Customer."
WHEREAS, Customer is a Texas limited liability company legally authorized to do business in the State of
Texas, which desires to purchase from the Owners raw water for certain industrial uses, all as more
particularly provided in Section 1.0 below;and
WHEREAS, said water will be taken from Lake Kemp/Lake Diversion System ("Water") at a diversion
point located at Lake Diversion(as more specifically provided in Section 1.1 below)in amounts hereinafter
specified; and
WHEREAS, Owners,pursuant to Certificate of Adjudication No. 02-5123, are entitled to divert and use the
water of Lake Kemp, and the diversion and use of the water by Customer from Lake Kemp will affect the
water rights of the Owners in Lake Kemp; and
WHEREAS,on January 1, 1977,the Owners and West Texas Utilities Company entered into an agreement
(the"1977 Water Contract")to purchase up to 20,000 acre-feet of water per year for the use of a coal power
plant being constructed by said company; and
WHEREAS, AEP Texas,Inc.,a Delaware Corporation("AEP")was the successor to West Texas Utilities Company
and AEP assigned all of all of its rights,titles,interests and duties under the 1977 Water Contract to Customer;
and
WHEREAS,this Contract replaces all prior contracts, including but not limited to the 1977 Water Contract,
between the parties relating to the purchase of Water from the Lake Kemp/Lake Diversion System and
such prior contracts shall have no further effect; and
WHEREAS, by resolution of the Wichita Falls City Council enacted on September 19, 2023, and by
resolution of the Board of Directors for the Wichita County Water Improvement District #2 enacted on
August 15, 2023,they each respectively authorized the purchase of Water by Customer under the terms of
this mutually agreed upon Contract; and
WHEREAS,this Contract is a raw water contract authorized pursuant to Texas Water Code § 11.036 under
the jurisdiction of the Texas Commission on Environmental Quality("TCEQ");and
WHEREAS, Customer is required by TCEQ regulations to comply, implement and enforce the Owners'
Water Conservation and Drought Contingency Plans, as may be amended by Owners, whichever is most
restrictive,through all subsequent sales of Water,and shall include such obligation in any subsequent contract
for sale that Customer may execute with any third party purchaser of Water.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that for value received, Owners and
Customer mutually agree to the following,to wit:
Page 1 of 9
1.0.Diversion and Use Authorized.Owners will sell to Customer,and Customer will purchase from Owner,
the raw water being provided under this Contract ("Water") pursuant to the terms and provisions of this
Contract. Customer shall only use the Water for industrial purposes as defined in Section 297.1(25) of 30
Texas Administrative Code,including but not limited to electrical generation(excluding hydroelectric),and
the production and storage of industrial gasses. Customer shall not be allowed to use or resell the Water for
agricultural use or municipal water use or supply. The place of use of Water shall be restricted to the property
identified by a map and metes and bounds included in Exhibit A (the"Property"). Tract One in Exhibit A
is identified as the original property("Oklaunion Property")purchased by OPS. Tract Two is an additional
800 acres(more or less)which is solely for the green hydrogen project. Use of Water on Tract Two shall be
limited to the production,processing, liquefaction, and storage of industrial gases,and only to the extent the
lands in Tract Two are owned or controlled by Felix 3, LLC or its successors and assigns; Water provided
under this Contract shall not be used on Tract Two for any other purpose. Customer shall have the right
without the approval of Owners to resell the Water to third parties on any terms and conditions acceptable to
Customer;provided,however,the Water may only be used for the purposes provided in this Section and may
only be used on the Property.
1.1. Diversion Point. The diversion point and point of delivery (collectively referred to herein as the
"Diversion Point") of the Water from the Owners shall be at the Customer's raw water Intake Structure at
Lake Diversion. Included as Exhibit B is map depicting the location of the Diversion Point. Any change in
the existing Intake Structure and location of the raw water line shall be with the approval of City Public
Works Director and the General Manager of the Wichita County Water Improvement District #2, which
approval shall not be unreasonably withheld,conditioned or delayed,and at the sole expense of the Customer.
1.2.Maximum Delivery Obligation. Customer shall purchase Water from the Lake Kemp/Lake Diversion
System in such quantities as it desires up to,but not more than,20,000 acre-feet of Water per Water Year(as
herein defined). The Maximum Annual Quantity of Water to be diverted from the water supply system by
Customer from the Lake Kemp/Lake Diversion System shall not exceed 20,000 acre-feet per year("Annual
Quantity")in any Water Year unless a greater amount is approved in writing by Owners."Water Year"means
the period between January 1 of each calendar year through December 31 of that calendar year. The Annual
Quantity is calculated as the amount of Water Customer consumes in each monthly billing cycle during a
Water Year. Customer shall not take more than the Annual Quantity without prior written consent of Owners.
Customer agrees that, except as provided herein, Owners are under no obligation to provide Customer with
a sufficient amount of Water for Customer to meet its minimum production, storage, service pump, or
pressure maintenance requirements, or any other requirements imposed on Customer under 30 Texas
Administrative Code, or any other requirement of law. Customer also agrees that Owners are under no
obligation to increase any of its water utility infrastructure or capacity in order to satisfy any of the provisions
of this Contract.
1.3.Metering.
a.Customer shall furnish,install,operate and maintain at its own sole expense at the Diversion
Point,the necessary metering equipment,including a meter house or pit,and required devices
of standard type for properly measuring and recording the quantity of Water diverted. Owners
and Customer shall agree on the type of any replacement meter before purchase by Customer.
Metering equipment shall be calibrated by Customer whenever requested by Owners,but not
more frequently than once every 12 months. Within 30 days after such calibration, Customer
shall furnish a certification of such calibration to the Owners. A meter registering not more
than 2%above or below the rated capacity of the meter shall be deemed accurate.The previous
reading of any meter disclosed by test to be inaccurate shall be corrected for the 12 months
Page 2 of 9
previous to such test in accordance with the percentage of inaccuracy found by such tests and
existing records. If any meter fails to register for any period, and if check meters or other
meter readings are not available as a resource for calculation, then the amount of Water
furnished during such period shall be deemed to be the amount of Water diverted in the
corresponding period immediately prior to the failure, based on existing records unless
Owners and Customer shall agree in writing upon a different amount.If Customer's measuring
equipment is out of service for 30 consecutive days or more, Owners may purchase, install
and maintain any required measuring equipment, as determined by Owners, and charge the
expense therefore to Customer.
b.During any reasonable business hours,Owners shall have access to the metering equipment.
Owners shall further have access to all records pertinent to determining the measurement and
quantity of Water actually delivered. Customer agrees that Owners may furnish, install,
operate and maintain check meters, should Owners so choose. Customer also agrees that the
design and construction of its diversion facility and metering equipment will facilitate
Owners' installation and operation of check meters. Should check meters be installed by
Owners,then if any of Customer's meters fail to register for any period,then the amount of
Water furnished during such period shall be deemed to be the amount of Water as registered
by such check meter.
c. Customer will be responsible for reading the raw water meter on the first Business work
day of each month during the term of this Contract. Customer and Owners shall have free
access to read meters daily if they so desire. Owners will provide Customer,no later than the
loth day of each month,with an itemized statement showing the amount of Water metered to
Customer during the preceding month and the resulting charges. Customer shall pay to
Owners the amount of the itemized statement no later than the 20th day of the month in which
the charges are incurred. Customer will remit 50%of the amount owed to the City and 50%
to the Wichita County Water Improvement District#2.
d. "Business hours" are defined as between the hours of 8:00 a.m. and 5:00 p.m. CST.
"Business work day" is defined as week days that exclude federal and state holidays, and
Saturdays and Sundays. Any day specified for performance under the terms of this Contract
that falls on a weekend or holiday shall be performed not later than the conclusion of the next
successive Business work day.
1.4. Reporting of Withdrawals. Customer is required to report withdrawals in accordance with applicable
state rules to the appropriate regulatory agencies. Customer is required to furnish annual reports to Owners.
1.5. Plans and Specifications Approval. Plans and Specifications for new or additions to existing intake
structure and pumping facilities shall be approved by the Owners, such approval not to be unreasonably
withheld, conditioned or delayed, before advertising for construction, such approval being for factors that
may affect the Owners' operation and use of the reservoir and environs.
2.0. Base Rate and Minimum Charge. For Water actually diverted to Customer at the Diversion Point,
Customer will pay Owners at the"Base Rate"of$1.30 per one thousand(1,000)gallons, on a monthly basis
for water diverted, or at least an annual minimum charge of One Million Dollars($1,000,000.00)per Water
Year beginning January 1,2024.If the cumulative amount of monthly payments by Customer for any Water
Year is less than One Million Dollars ($1,000,000.00)(the "Minimum Charge"),then on or before January
10 following such Water Year,beginning with January 10, 2025,Customer shall pay the difference between
Page 3 of 9
the amount of Water actually purchased, consumed or used during said Water Year and the amount of the
Minimum Charge.
2.1.Annual Changes to Water Rates. The Base Rate shall be adjusted annually to reflect increases in the
Consumer Price Index-All Urban Consumers for the U.S. City Average (Base Period 1982-84:100)("CPI")
as computed by the United States Department of Labor, Bureau of Labor Statistics (the "Bureau"), or any
other agency succeeding to the Bureau's function of computing the CPI. The new Base Rate will become
effective at the beginning of each Water Year(January 1). Adjustment to the Base Rate does not constitute
an amendment to the Contract.
2.2. Disputed Water Rates. Customer stipulates and agrees that the rate, rate setting method, and rate
adjustment in this Contract are just,reasonable, and without discrimination.
2.3. Additional Charges. Customer is a for-profit private business entity and will pay all Texas state sales
tax that it is legally obligated to pay on all Water purchased. Owners will collect this sales tax and remit it to
the State;provided,however,that Customer shall first have the right to apply for and/or assert any applicable
tax exemptions before such sales tax amounts are collected from Customer. In the event that any sales or use
taxes, or taxes, assessments, or charges of any similar nature are imposed on purchasing, diverting, storing,
delivering,gathering,impounding,taking,selling,using,or consuming the Water received by Customer from
the Diversion Point,the amount of the tax, assessment, or charge shall be borne by Customer, in addition to
all other charges, and whenever Owners shall be required to pay, collect, or remit any tax, assessment, or
charge on Water received by Customer,then Customer shall promptly pay or reimburse Owners for the tax,
assessment, or charge in the manner directed by Owners.
2.4. Default in Payments. All amounts due and owing to Owners by Customer shall, if not paid when due,
bear interest at the Texas post judgment interest rate set out in Texas Finance Code § 304.003, or any
successor statute,from the date when due until paid. If any amount due and owing by Customer to Owners
is placed with an attorney for collection, Customer shall pay to Owners, in addition to all other payments
provided for by this Contract, including interest, Owners' reasonable collection expenses, including court
costs and attorneys' fees. Owners may, upon not less than 10 days' prior written notice and to the extent
permitted by law, suspend delivery of Water from the Diversion Point to Customer if Customer remains
delinquent in any payments due hereunder for a period of 60 days ("Payment Default") and shall not be
required to resume delivery of Water while Customer is in Payment Default. In the event of a Payment
Default,Owners may pursue all legal remedies against Customer to enforce and protect the rights of Owners,
Owners' customers, and the holders of Owners'bonds. It is understood that the foregoing provisions are for
the benefit of the holders of Owners' bonds. At Owners' option (and following suspension), Owners may
terminate this Contract if any such Payment Default is not cured within 90 days after Customer has been
provided with written notice of the Payment Default.
3.0. Water Shortages. In the event of an extended shortage of Water, or the supply of Water available to
Owners is otherwise diminished over an extended period of time so that it becomes necessary to ration water
sold to citizens of City or the agricultural customers of the Wichita County Water Improvement District#2,
the supply of Water to Customer shall be reduced or diminished in the same ratio or proportion as the supply
to the citizens of City is reduced or diminished pro rata in accordance with Texas Water Code
§ 11.039. Customer agrees that once the storage capacity reaches 50,000 acre feet in the Lake Kemp/Lake
Diversion System,that 50,000 acre feet is solely for the purpose of use by Owners for municipal purposes.
If Customer fails to implement restrictions that emulate or exceed either Owner's Drought Contingency
Plans, as may be amended by the Owners,whichever is most restrictive,when trigger conditions occur,then
Page 4 of 9
City's City Manager or the General Manager of Wichita County Water Improvement District#2 is authorized
to institute rationing pursuant to this Contract, as well as enforce any contractual, statutory, or common law
remedies available to City or Wichita County Water Improvement District#2 necessary to protect the public
welfare.
4.0.Rules and Regulations. This Contract is subject to such rules,regulations, or laws as may be applicable
to agreements in the State of Texas; Owners and Customer will collaborate in obtaining such permits,
certificates, or the like, as may be required to comply herewith;. Customer shall solely bear the cost of its
own compliance.
4.1. Access. Owners and Customer shall have reasonable access to easements, and rights-of-way,together
with rights of ingress and egress across each other's land for the life of this Contract and any extensions
thereof for water intake structures and water discharge structures, for water intake and discharge canal or
canals and/or pipelines,pumping equipment, cables, and for dredging water intake and discharge canals.
4.2. Recirculation Prohibited. Customer is prohibited from recirculating water back into the Lake
Kemp/Lake Diversion System for any reason.
5.0. Term. This Contract shall extend for a term of 40 years from the date of Contract execution. Customer
shall have the right to terminate this Contract upon written notice at any time. Customer shall pay a one-time
cancellation fee of Two Million Dollars($2,000,000.00).Owners may cancel this Contract at any time during
any term of the Contract if the Customer breaches any covenant herein(other than the payment obligation in
Section 2.4),and such non-monetary breach continues for 90 days after Owners give Customer written notice
of such Default. If such non-monetary Default is of the type that cannot reasonably be cured within a 90-day
period, then the parties shall agree on a longer period as reasonably necessary to effect a cure, provided
Customer initiates such cure within 90 days and thereafter diligently proceeds with such cure until
completion. The cancellation fee shall be remitted as follows: 50%to the City of Wichita Falls, and 50%to
the Wichita County Water Improvement District#2.
6.0. No Assignment or Discrimination. This Contract shall not be assignable by any party without the
approval of all the other parties,which approval shall not be unreasonably withheld,conditioned or delayed.
Owners hereby agree that Felix 3, LLC shall be an approved assignee in the event of a default by Customer
under this Contract and a demonstration by Felix 3, LLC that it possesses a valid right to acquire ownership
or control of(i) Customer's rights under this Contract, and(ii)the infrastructure necessary to deliver water
hereunder. The parties hereto shall not discriminate against any employee or applicant for employment or
service because of race,religion, color, sex,national origin, age, or handicap.
7.0. Independent Contractor. This Contract is intended to create an independent contractor relationship,
and the employees of each party shall never be considered the employees of the other party.
8.0.Notices to Customer.Notices by the parties to each other shall be written and be provided to:
City of Wichita Falls
Director of Public Works
1300 7th Street
Wichita Falls,Texas 76307
Page 5 of 9
Wichita County Water Improvement District#2
General Manager
402 East Scott Avenue
Wichita Falls,Texas 76301
If a document is sent via certified U.S. mail, notice shall be considered received by the Customer if a
representative of the Customer fails to sign for or accept said document within 5 days after receipt thereof.
9.0. Title to Water. Title for liability purposes to all Water supplied hereunder to Customer shall be in
Owners up to the Diversion Point, at which point title shall pass to Customer. Customer will not obtain any
water rights,but may use and reuse any wastewater effluent flows resulting from the Water supplied pursuant
to this Contract or the continuation thereof on the Property as specified in Exhibit A.
10.0. Compliance with Rules of Texas Commission on Environmental Quality (TCEQ or the
Commission). The effectiveness of this Contract is dependent upon Owners and Customer complying with
the rules of the TCEQ (or its successor agency), specifically including the rules codified as Texas
Administrative Code,Title 30, §295.101 as of the Effective Date of this Contract. Within 3 business days of
the Effective Date of this Contract,Owners will file a signed copy of this Contract with the Executive Director
of the Commission as required by the rules of the Commission.Customer may continue diverting Water from
the Diversion Point unless Owners notify Customer that Owners have received written notification from the
Commission that a copy of this Contract has been received by the Commission but not accepted for filing.
Customer shall submit written reports annually to the Commission, with a copy to Owners regarding the
quantity of Water Customer diverts, on forms provided by the Commission.
11.0.Owners and Customer Right to Execute Other Water Supply Contracts. Owner maintains its right
to enter into any other water supply contracts without restriction. Customer may enter into water supply
contracts consistent with the uses and place of use restrictions specified in this Contract.
12.0. Location and Quantity of Water. Water supplied by Owners to Customer under this Contract shall
be Water stored by Owners in the Lake Kemp/Lake Diversion System and from no other source, unless
Owners, at their sole discretion, decide to supply water from another source available to Owners. Owners
and Customer hereby agree that Customer shall have no right or entitlement to any portion of Owners'water
in the Lake Kemp/Lake Diversion System after the expiration of the Term of this Contract. Owners will
use their best efforts to provide Water to Customer in accordance with the terms of this Contract. Owners'
agreement to provide Water to Customer shall not be deemed a guarantee on Owners'part that any particular
quantity of Water will be available, and the quantity of Water taken shall at all times be subject to the right
of Owners to reduce said quantity of Water as Owners, in their sole judgment,may deem necessary in order
to meet Owners' commitments under its existing contracts, comply with any order of any court or
administrative body having appropriate jurisdiction,reduce flooding, or prevent injury.
Customer recognizes Owners'rights to maintain and operate the reservoirs owned or used by Owners and its
water transportation facilities and at any and all times in the future to impound and release waters thereby in
any lawful manner and to any lawful extent Owners may see fit, and, except as otherwise provided herein,
there shall be no obligation hereunder upon Owners to release or not to release any impounded waters at any
time or to maintain any waters at any specified level. Further,if the permitted yield of the Lake Kemp/Lake
Diversion System or the authorized quantity of the diversion is reduced by TCEQ,Owners reserves the right
to decrease the Contract quantity by a like percentage.
Page 6 of 9
Customer is solely responsible for all losses from transportation and evapotranspiration after the Water passes
through the Diversion Point from the Lake Kemp/Lake Diversion System.
13.0. Raw Water Quality. THE WATER WHICH OWNERS OFFER TO SELL TO CUSTOMER IS
NON-POTABLE,RAW,AND UNTREATED.CUSTOMER HAS SATISFIED ITSELF THAT SUCH
WATER IS SUITABLE FOR ITS NEEDS.OWNERS EXPRESSLY DISCLAIM ANY WARRANTY
AS TO THE QUALITY OF THE RAW WATER OR SUITABILITY OF THE RAW WATER FOR
ITS INTENDED PURPOSE. OWNERS EXPRESSLY DISCLAIM THE WARRANTIES OF
MERCHANTABILITY AND FITNESS. CUSTOMER AGREES THAT ANY VARIATION IN THE
QUALITY OR CHARACTERISTICS OF THE RAW WATER OFFERED FOR SALE AS
PROVIDED BY THIS AGREEMENT SHALL NOT ENTITLE CUSTOMER TO AVOID OR LIMIT
ITS OBLIGATION TO MAKE PAYMENTS PROVIDED FOR BY THIS AGREEMENT. THERE
ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE CONTAINED IN THIS
AGREEMENT.
14.0. No Third-Party Beneficiaries.
This Contract shall inure only to the benefit of the parties hereto, and third persons not privy hereto shall not,
in any form or manner, be considered third-party beneficiaries of this Contract. each party hereto shall be
solely responsible for the fulfillment of its customer contracts or commitments, and Owners shall not be
construed to be responsible for Customer's contracts or commitments by virtue of this Contract or any
provision contained herein.
15.0. Choice of Venue.
All acts performable under the terms of this Contract and all amounts due under this Contract,including,but
not limited to,payments due under this Contract or damages for the breach of this Contract,shall be paid and
be due in Wichita County, Texas, said Wichita County, Texas, being the place of performance agreed to by
the parties to this Contract. In the event that any legal proceeding is brought to enforce this Contract or any
provision hereof,the same shall be brought solely in Wichita County,Texas.
16.0.Insurance and Indemnity.Customer shall continuously maintain valid liability insurance covering all
of its operations of at least$500,000 per incident and$1,000,000 in the aggregate,naming the City and the
Wichita County Water Improvement District #2 as an additional insured and providing a waiver of
subrogation in favor of the City and the Wichita County Water Improvement District #2. Customer shall
provide the City and the Wichita County Water Improvement District #2 with copies of the policy and
certificate of insurance within 72 hours of the City's or the Wichita County Water Improvement District#2's
demand for a copy of said policy and/or certificate. The Customer's failure to maintain such insurance and
endorsements as required above shall constitute a breach of this Contract. IF CUSTOMER FAILS TO
MAINTAIN SUCH INSURANCE, THEN CUSTOMER SHALL DEFEND, INDEMNIFY AND
HOLD HARMLESS CITY AND THE WICHITA COUNTY WATER IMPROVEMENT DISTRICT
#2 AND THEIR ELECTED AND APPOINTED OFFICIALS, OFFICERS, AGENTS, AND
EMPLOYEES (COLLECTIVELY, THE "OWNER-INDEMNIFIED PARTIES") FROM ALL
SUITS, ACTIONS, OR CLAIMS OF ANY CHARACTER, NAME AND DESCRIPTION
INCLUDING ATTORNEYS' FEES AND EXPENSES BROUGHT FOR ANY INJURIES TO
PERSONS OR DAMAGES TO PROPERTY IN CONNECTION WITH THE PERFORMANCE OR
ATTEMPTED PERFORMANCE OF THIS CONTRACT,EXCEPT TO THE EXTENT CAUSED BY
THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE OWNER INDEMNIFIED
PARTIES). CUSTOMER SHALL FURTHER INDEMNIFY THE OWNER-INDEMNIFIED
Page 7 of 9
PARTIES FOR ANY LIABILITY OCCURRING AS A RESULT OF THE CUSTOMER'S
NEGLIGENT OR WRONGFUL ACTS OR OMISSIONS.
17.0. Signs and Warning Devices.Customer shall have the duty to erect and maintain signs or other devices
warning of any danger to third persons upon any facility or portion of the power plant or portion of the power
plant operation which is located upon or in the Lake Kemp/Lake Diversion System or the property of the
Owners. Provided, however,that the foregoing sentence shall inure to the benefit of the Owners only and
shall not serve to enhance or establish the liability of Customer to any such third party.
18.0 Hold Harmless. CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS OWNERS
FROM ANY AND ALL CLAIMS,SUIT S OR CAUSES OF ACTION ARISING BY VIRTUE OF THE
CONSTRUCTION, OPERATION, AND MAINTENANCE OF ANY OF SUCH CUSTOMER
FACILITIES WHICH ARE LOCATED UPON OR IN THE LAKE KEMP/LAKE DIVERSION
SYSTEM OR OTHER PROPERTY OF OWNERS,EXCEPT TO THE EXTENT OF THE OWNERS'
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
19.0 Dredging Rights. Customer shall have dredging rights to the extent reasonably necessary to effectuate
circulation;provided that,everything dredged from the bottom of the lake will be removed by Customer and
handled and disposed of in compliance with all applicable local, state, and federal law and regulations to
Owners' reasonable satisfaction and at Customer's expense.
20.0.Amendments to be in Writing. The parties to this Contract agree that they have read all provisions of
this Contract and any exhibits hereto. This Contract and any exhibits hereto are the complete and exclusive
statements of the terms agreed upon, superseding all prior agreements or statements, either written or oral.
No modification,amendment,or addition to this Contract is valid unless in writing and signed by all parties.
21.0. Severability.If any of the provisions of this Contract(other than the rates and obligation to pay for the
Water)shall be invalid or unenforceable,same shall not invalidate or affect the validity and enforceability of
any other provision,which provisions shall remain in force and effect.
22.0. No City or Wichita County Water Improvement District#2 Liability. Owners shall never be liable
to Customer for any shortage of Water,failure of any part of system, condition of the Water,strike, disaster,
government action, or any other condition that affects Water supply or usefulness for any purpose, except to
the extent caused by Owners'gross negligence or willful misconduct. Owners disclaim any and all warranties
with respect to the Water supplied pursuant to this Contract.
23.0. No Waiver. Failure of either party to enforce a provision of this Contract shall not waive any future
right to enforce that provision.
24.0. Interpretation and Recitals. This Contract shall be considered to be mutually drafted in accordance
with negotiation between the parties hereto. Accordingly, it shall not be interpreted against either party on
the basis that said party supplied its language.
25.0. Exhibits and Recitals Incorporated. The recitals and exhibits of this Contract are true and correct
and are hereby incorporated into the body of this Contract as though fully set forth in their entirety herein.
Page 8 of 9
IN WITNESS WHEREOF,the parties hereto,acting under the authority of their respective governing bodies,
have caused this Contract to be duly executed in three counterparts,each of which shall constitute an original.
Oklaunion Power Station,L.L.C. City of Wichita Falls
Dan-on Leiker,City Manager
Wichita County Water Improvement District#2
Kyle Miller, General Manager
(seal) (seal)
ATTEST: ATTEST:
Marie Balthrop,City Clerk
APPROVED AS TO FORM:
Kinley Hegglund, City Attorney
Page 9 of 9
EXHIBIT A
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PAGE 1 OF 3
WO#23-0607 BASIS OF BEARINGS ARE NAD 83 — TEXAS NORTH CENTRAL
BOUNDARY SURVEY OF TWO TRACTS OUT OF
THE ABOVE DESCRIBED TRACT WAS
D SURVEYED JULY 13, 2023 AND THE DIMENSIONS SECTIONS 22, A-766, 23, A-378, 33, A-383, 34,
SHOWN ARE HEREBY CERTIFIED TO BE TRUE AND
n, CORRECT. A-744, 39, A-386, 40, A-1068 AND 41, A-387,
H. & T. C. RAILROAD COMPANY SURVEY, BLOCK 14,
1 ic: /.- /1/4,,
2,...,
WILBARGER COUNTY, TEXAS
DEVIN G. SMITH CORLETT,PROBST&BOYD,P.LLC.
3 REGISTERED PROFESSIONAL LAND SURVEYOR NO. 5849 ENGINEERS&SURVEYORS 4605 OLD JACKSBORO HIGHWAY
TBPLS-1 00541-00 TBPE F-279 PH.(940)723-1455,FAX(940)397-0549 WICHITA FALLS,TEXAS,76302
EXHIBIT A
TRACT 1
FIELD NOTES
FIELD NOTES OF 1937.07 ACkES BEING ALL OF SECTIONS 33, A-383 AND 40,
A-1068 AND A PORTION OF SECTIONS 34, A-744, 39, A-386 AND 41, A-387,
H. & T.C. RAILROAD COMPANY S'RVEY, BLOCK 14 W1LBARGER COUNTY, TEXAS,
AND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS
FOLLOWS:
BEGINNING at an iron rod found in concrete at the Southeast corner of said Section 33
and the Northeast corner of said Section 34, also being in the most Easterly line of
this tract;
THENCE S 13' 25' 51" E, along the East line of said Section 34, a distance of 1329.86
feet to an iron rod set for the Southeast corner of this tract;
THENCE S 76' 25' 56" W a distance of 10554.62 feet to a broken monument found in
the West line of said Section 39 for the Southwest corner of this tract;
THENCE N 13' 34' 41" W, with the West line of said Sections 39 and 40, a distonce of
6648.40 feet to an iron rod found in concrete at the Northwest corner of said Section
40 and the Southwest corner of said Section 41;
THENCE N 13' 36' 53" W, with the West line of said Section 41, a distance of 2683.38
feet to an iron rod found for the Northwest corner of this tract;
THENCE N 76' 25' 45" E a distance of 5280.30 feet to an iron rod found in the East
line of said Section 41 for the most Northerly Northeast corner of this tract;
THENCE S 13' 37' 43" E, with the East line of said Section 41, a distance of 2680.56
N feet to an iron rod found in concrete at the Northeast corner of said Section 40, the
Southeast corner of said Section 41, and the Northwest corner of said Section 33, for
0 on ell corner of this tract;
THENCE N 76' 28' 43" E, with the North line of said Section 33, a distance of 5281.21
feet to an iron rod set at the Northeast corner of said Section 33 for the most
Easterly Northeast corner of this tract;
S
THENCE S 13' 32' 01" E, with the East line of said Section 33, a distance of 5317.38
feet to the PLACE OF BEGINNING and containing 1937.07 acres of land.
O
.O F...........
Tf
9 ,
4- * o DEVIN G. SMITH
° 5849
a 19i�,O ess\O'y0 f
SUR�f' PACE 2 OF 3
WO,f23-0607 BASIS OF BEARINGS ARE NAD 83 - `EXAS NCRTH CENTRAL
BOUNDARY S.�RVEY OF TWO TRACTS OUT OF
THE ABOVE DESCRIBED TRACT WAS
SURVEYED JULY 13, 2023 AND THE DIMENSIONS SECTIONS 22, A-766, 23, A-378, 33, A-383, 34,
SHOWN ARE HEREBY CERTIFIED TO BE TRUE AND
CORRECT. A-744, 39, A-386, 40, A-1068 AND 41, A-387,
%,44. H. & T. C. RAILROAD COMPANY SURVEY, BLOCK 14,
'i!G
0
W'LBARGER COUNTY, TEXAS
DEVIN G. SMITH CORLETT,PROBST&BOYD,P.LLC.
STERED PROFESSIONAL LAND SURVEYOR NO. 5849 ENGINEERS&SURVEYORS 4605 OLD IACKSBORO HIGHWAY
' P S- 00541-oo TBPE F-279 PH.(940)723-1455.FAX(940)397-0549 WICHITA FALLS,TEXAS,76302
EXHIBIT A
TRACT 2
FIELD NOTES
FIELD NOTES OF 806.24 ACRES BEING ALL OF SECTION 23, A-378 AND A PORTION OF SECTION 22,
A-766, H. & T. C. RAILROAD COMPANY SURVEY, BLOCK 14, WILBARGER COUNTY, TEXAS, AND MORE
PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
3_GINNING at a spike nail found in the centerline of FM 2897 South, at the Northeast corner of said Section
23, A-378. at the Southeast corner of a tract of land conveyed to Electric Transmission Texas, LLC by deed
recorded in Volume 617, Page 354, Official Public Records of Wilbarger County and at the Northwest corner of
a tract of land conveyed to NPDC, LLC by deed recorded in Volume 745r Page 524, Official Public Records of
Wilbargqer County, for the Northeast corner of this tract, from which a 6 wooden fence corner bears S 74'
51' 39- W 33.9 feet;
THENCE S 13' 56' 45" E, with the centerline of FM 2897 South, the East line of said Section 23, A-378 and
the West line of said NPDC, LLC tract, at 5297.7 feet pass a spike nail set of the Southeast corner of said
Section 23, A-378, at the Northeast corner of said Section 22, A-766, at the Southwest corner of said
NPDC, LLC tract and at the Northwest corner of a tract of land conveyed to Joe Tom Rainwater by deed
recorded in Volume 751, Page 291, Official Public Records of Wilbarger County and continuing on the same
course with the centerline of FM 2897 South, the East line of said Section 22, A-766 and the West line of
sa'd Rainwater tract a total distance of 7949.17 feet to a spike nail found at the Northeast corner of a tract
cf land conveyed to Frances Jane Stone by deed recorded in Volume 613, Page 128, Official Public Records of
Wdbarger County, for the Southeast corner of this tract;
THENCE S 76' 04' 20" W, with the North line of said Stone tract, a distance of 2666.87 feet to on iron rod
set in the East line of a tract of land conveyed to Clifford D. Gfeller by deed recorded in Volume 600, Page
388, Official Public Records of Wilbarger County and at the Northwest corner of said Stone tract, for the
most Southerly Southwest corner of this tract;
THENCE N 13' 53' 00" W, with the East line of said Gfeller tract, a distance of 2656.31 feet to a capped iron
rod found in the fenced South line of said Section 23, A-378 at the Northeast corner of said Gfeller tract,
for an ell corner of this tract;
THENCE S 76' 15' 04" W, with the fenced South line of said Section 23, A-378 and the North line of said
Wife.,er tract, a distance of 2663.60 feet to an iron rod set in the East line of a tract of land conveyed to
W. T. Waggoner Estate as recorded in Volume 28, Page 449, Official Public Records of Wilbarger County, at
the Southwest corner of said Section 23, A-378 and at the Northwest corner of said Gfeller tract, for the
most Westerly Southwest corner of this tract, from which a 2" pipe fence corner bears S 62' 59' 28" W 5.0
feet;
mdLNCE N 13' 25' 51" W, with the West line of said Section 23, A-378, the East line of said W. T. Waggoner
Estate tract and the West line of a tract of land conveyed to Oklounion Industrial Park, Inc. by deed recorded
in Volume 742, Page 687, Official Public Records of Wilbarger County, a distance of 5276.45 feet to an iron
n rod found at the Northwest corner of said Section 23, A-378 and an ell corner of said Oklaunion Industrial
g Park, Inc. tract, for the Northwest corner of this tract, from which a 2" pipe fence corner bears S 75' 34'
N 11" W 49.5 feet;
°' THENCE N 75' 58' 56" E, with the North line of said Section 23, A-378, the South line of said Oklaunion
Industrial Park, Inc. tract and the South line said Electric Transmission Texas, LLC tract, a distance of
a 5280.13 feet to the PLACE of BEGINNING and containing 806.24 acres of land,
of which 5.5 acres lies within the right-of-way of FM 2897 South. ' O F.
•�E ...........
i
/�p:•o1
m
4 DEVIN G. SMITH
5849 r
••''PaR OAP,:c
9A,• ESS�
PAGE 3 OF 3 8u... .'
WO#23-0607 BASIS OF BEARINGS ARE NAD 83 - TEXAS NORTH CENTRAL `
BOUNDARY SURVEY OF TWO TRACTS OUT OF
THE ABOVE DESCRIBED TRACT WAS
o SURVEYED JULY 13, 2023 AND THE DIMENSIONS SECTIONS 22, A-766, 23, A-378, 33, A-383, 34,
8 SHOWN ARE HEREBY CERTIFIED TO BE TRUE AND
CORRECT. A-744, 39, A-386, 40, A-1068 AND 41, A-387,
0
0 r/1/1‘? H. & T. C. RAILROAD COMPANY SURVEY, BLOCK 14,
WILBARGER COUNTY, TEXAS
DEVIN G. SMITH CORLETT,PROBST&BOYD,P.LLC.
REGISTERED PROFESSIONAL LAND SURVEYOR NO. 5849 ENGINEERS&SURVEYORS 4605 OLD JACKSBORO HIGHWAY
TBPLS-1 00 541-00 TBPE F-279 PH.(940)723-1455,FAX(940)397-0549 WICHITA FALLS,TEXAS,76302
VI
EXHIBIT B
I
A-1251 16 7 A-1296
1
A-2 0 0
WAGGONER EST.
u '` wvOl oBft VW.449 �� aru rr mr• - !
�\ 0 Ir
v N75 N•1TE S 17'4J-E 2 l u arr �,! d
514 x.4•
R 1S.10•SS'E
2.7W mrt w 3'•'!1' •E u rcia�i,
7.xr
S�'x7 I2•E ' •: 's^vuCF Cf
1: i u.sus LAKE DIVERSION ism. .u� Sl.a• BEpNNING
NG
WATER PUMP STATION
u E .a. EXHIBIT B
0.32 ACRE u- Sle'N'OY E..,.., max
SECTION I, A-200 H. & T. C. RAILROAD COMPANY SURVEY
s'6'
57
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91.
• < DEVIN G. SMITH
D▪ `i<.'Pp 5849 ?P•4-/
N Nq '�ESS\�•' O /
y . l
m `.� SURv�.�
co PAGE 1 OF 2
m WO#23-0607B BASIS OF BEARINGS ARE NAD 83 — TEXAS NORTH CENTRAL
E
x
3 BOUNDARY SURVEY OF A 0.32 ACRE
• THE ABOVE DESCRIBED TRACT WAS
• SURVEYED JULY 13, 2023 AND THE DIMENSIONS TRACT OF LAND OUT OF SECTION 1,
8 SHOWN ARE HEREBY CERTIFIED TO BE TRUE AND
n CORRECT. A-200, H. & T. C. RAILROAD COMPANY
8 SURVEY ARCHER COUNTY TEXAS
-.-, /j6,.., .71, 0/-is 2
DEVIN G. SMITH CORLETT,PROBST&BOYD,P.LLC.
3 REGISTERED PROFESSIONAL LAND SURVEYOR NO. 5849 ENGINEERS ht.SURVEYORS 4605 OLD JACKSBORO HIGHWAY
TBPLS-1 005 41-00 TBPE F-279 PH.(940)723-1455,FAX(940)397-0549 WICHITA FALLS,TEXAS,76302
0.
EXHIBIT B
EXHIBIT B
FIELD NOTES
FIELD NOTES OF A 0.32 ACRE TRACT OF LAND OUT OF SECTION 1, A-200, H. & T. C. RAILROAD COMPANY
SURVEY, ARCHER COUNTY, TEXAS, AND MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS
FOLLOWS:
BEGINNING at a fence corner at the top of a concrete wall found for the most Northerly Northeast corner of this
tract, said fence corner being called S 44' 57' 35" W 2217.94 feet from the Northeast corner of said Section 1,
A-200;
THENCE S 18' 34' 02" E, generally with a fence, a distance of 20.80 feet to a 2.5" pipe fence corner found for the
most Easterly Southeast corner of this tract;
THENCE S 74' 24' 47" W, generally with a fence, a distance of 84.61 feet to a 2.5" pipe fence corner found for on
ell corner of this tract;
THENCE S 18' 08' 04" E, generally with a fence, a distance of 19.72 feet to a 2.5" pipe fence corner found for the
most Southerly Southeast corner of this tract;
THENCE S 74' 13' 02" W, generally with a fence, a distance of 29.33 feet to 2.5" pipe fence corner found for an
ell corner of this tract;
THENCE S 69' 42' 53" W, generally with a fence, a distance of 36.58 feet to a corner of a concrete wall found for
,ne most Southerly Southwest corner of this tract;
THENCE N 24' 03' 05" W, generally with a fence, a distance of 8.43 feet to a 3" pipe fence corner found for an ell
corner of this tract;
THENCE S 70' 46. 50" W, generally with a fence, a distance of 9.54 feet to a gate post found for an angle corner
of this tract;
THENCE 5. 73' 09' 26" W, generally with a fence, a distance of 22.81 feet to a 2.5" pipe fence corner found for the
most 'Aesterly Southwest corner of this tract;
THENCE N 18' 22' 30" W, generally with a fence, a distance of 46.76 feet to a fence corner found for an angle
corner of this tract;
THENCE N 24' 39' 30" W, generally with a fence, a distance of 56.16 feet to a corner of a concrete wall found for
the most Westerly Northwest corner of this tract;
• THENCE N 15' 10' 58" E, generally with a fence, a distance of 9.78 feet to a corner of a concrete wall found for
the most Northerly Northwest corner of this tract;
THENCE N 75' 45' 17" E, generally with o fence, a distance of 31.12 feet to a fence corner found at the top of a
• concrete wall for on angle corner of this tract;
T-ENCE S 80' 32' 43" E, generally with a fence, a distance of 62.34 feet to a fence corner found at the top of a
• concrete wall for on angle corner of this tract;
2• THENCE S 80' 31' 53" E, generally with a fence, a distance of 74.27 feet to a fence corner found at the top of a
- concrete wall for an angle corner of this tract;
THENCE S 80' 22' 28" E, generally with a fence, a distance of 36.76 feet '�lF TF
to the PLACE of BEGINNING and containing 0.32 acre of land. / P:'��S7E'R -F
4 DEVIN G. SMITH
'q 5849
PAGE 2 OF 2 5 9,I0f.... O
#23-06076 BASIS OF BEARINGS ARE NAD 83 - TEXAS NORTH CENTRAL SUR
• w
BOUNDARY SURVEY OF A 0.32 ACRE
THE ABOVE DESCRIBED TRACT WAS
SURVEYED JULY 13, 2023 AND THE DIMENSIONS TRACT OF LAND OUT OF SECTION 1,
- S-ICWN ARE HEREBY CERTIFIED TO BE TRUE AND
CORRECT. A-200, H. & T. C. RAILROAD COMPANY
q/4/' SURVEY ARCHER COUNTY TEXAS
DEV N G S/lTH CORLETT,PROBST&BOYD,P.LLC.
TE i5 ERL =TC-ESSONAL LAND SURVEYOR NO. 5849 ENGINEERS&SURVEYORS 4605 OLD IACKSBOROHIGHWAY
-cc TBPE F-279 PH.(940)723-1455,FAX(940)397-0549 WICHITA FALLS,TEXAS,76302