Res 058-2010 5/4/2010 RESOLUTION NO. 58-2010
Resolution Authorizing The City Manager To Execute A 20-Year
Potable Water Purchase Contract Providing For The Sale Of Water
From The City Of Wichita Falls To The Town Of Pleasant Valley
WHEREAS, the Town of Pleasant Valley (Pleasant Valley), a Texas municipal
corporation, operates a water distribution system serving water users within its
authorized service area, and to accomplish this purpose, it requires a supply of potable
water;
WHEREAS, the City of Wichita Falls (City) owns water reservoirs and a
treatment and distribution system with capacity capable of serving its present
customers and the estimated number of water users to be served by Pleasant Valley;
WHEREAS, the City and Pleasant Valley entered into a Water Purchase
Contract on April 9, 1968, and this contract will replace all prior contracts between the
parties relating to the purchase of potable water;
WHEREAS, immediately prior to the effective date of this Contract, Pleasant
Valley was not obligated to purchase Water from the City, and the City was not
obligated to sell water to Pleasant Valley;
WHEREAS, by resolution of the City Council of Pleasant Valley enacted on April
14, 2010, Pleasant Valley authorized the continued purchase of water under the terms
of this new, mutually agreed upon contract;
WHEREAS, Pleasant Valley is required by Texas Commission on Environmental
Quality regulations to implement and enforce the City's Water Conservation and
Drought Contingency Plan through all subsequent sales of water, and Pleasant Valley
has agreed to include this obligation in any subsequent contract for sale of this water to
third parties; and
WHEREAS, both entities have examined the proposed Potable Water Purchase
Contract between the City and Pleasant Valley, and have determined this contract to
represent reasonable terms for the sale of water to Pleasant Valley.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
The attached Potable Water Purchase Contract is approved, and the City
Manager is authorized to execute said document, with such changes to form as are
approved by the City Attorney.
PASSED AND APPROVED this the 4 day of May, 2010.
MAYOR
,
ATTEST:
�
Cit lerk
Potable Water Purchgeo Coatrad
THIS CONTRACT for the ssle and purchase of potable watar (the "Contrad'� is eabered iato as of the th day of
� ' 2010, between d►e City of Wichiffi Falls, Texas, hereinafter rafeared to as "City," and d►e
Town of Pteasant Valley, hereinafter refsrred to as "Cnstome�" (City and Customcr are �llactiveiy the "Pactics").
WHBREAS, C�stoma is organi�ed end established undar provisions of the laws of the Stste of Taxas. One of the
daties of Gbstomer is the op�ration of a weter distributio� systam saving water users wit6in G�stomer's authorized
service area, and to accomplish this pwrpose, Customer requires a suPP�Y of polabla water;
WFIEREAS, City owns severai water �sservo'vs and a treatment and distr�"bution system (tha "City System'7 with
�P�' �Peble of serving the p�osent cnstomeis of tha City S�+stam aad tha �timated number of wata usas to be
socved by G�rstomer;
WHEREAS, City and Gwstomer entered inta a Water Purchese Contract on Apri19, 1968, aad subsequently ageed to
multiplo modificatious to tbe coati'sct, snd this Cam�red iepiacxs all prior ooa4acts bolwcen tF►e Partias relatiag to the
purc�eso af potable watv ("Watd');
VdF�REAS, immediately pria to the effearve date of Wix Contract, Customer was not obligated to p�rchase Water
fmm City and City was not obligafled to sel! Weta to Cunomer;
Wf�RBAS b�' rosoLrtioa of the City Council of L�stomer wacted on the �� da�' of �
2010, it suthori�ad the contiaaed per.hase of Water by Customer under the �rms of this new, mutually agreed upon
Conhac.K:
WF�RFAS, Gbswmer is raapoosible for operatiug its wata distribution systr� ("Customer Systam") and provid'mg
Water to its authoria�ed'service area as desc�ibed he�ein; and
�REAS, L'tistomer is nequired by Texas Commission on Bnvironm�tal Qualih' ("TCEQ'7 ngt►lahons to
implane� and e�fo�e Ciry's Water Conservation and Droaght ContinSency Plan throngh al[ subseqaent sales of
Wabea and shall include such obligation in any subsequent co�act for sale that Customer may execute with any third
P�Y P�� of Waier.
NOW, THERE�ORE, IINOW ALL MEN BY TEIFSE PRESENTS, tbat for value received, City and Customer
mutualty agee to the following. to wit
1.0. Delivery of Waber City agrees to sell snd to delivea W� und� this Cont�act to Customer at the tlefivery
point(s) specifiod hereie, and G�sWmer ag�ees to ffike at the delivery point(s) all Water required for usa daring the
ternn of this Conha�ct, not Lo ezceed the sonual quentity of Watar. The monthly quantity o£ Water to be fumished Isy
City to Customar shall nat mroeed 6,300,000 gallons per month ("MonthlY Quentity'7 aot to excxed a maximum o£
38,300,000 g�llo� Per }reer ("Amms1 Quanti�Y'� in atry Waber Year uakss a�bex' amount is approved in wricing
by City. `�1Vaber Yea�' meens the period Ocbober 1 of each calendar year ihraugh September 30 of the ne�ct following
calea�dar year. The Monthly Quantity is calculated as the amount of water Cintomu consumos in a normal monthly
billing cycle. G�.stomer shsll not take more Than the A�musl Quentity withont prior written consent of City.
Customa� e�cees that City is under no obGgation tfl provide Gwstomcr with a sn�icieot amount of Water for
G�stomer Lo ma4 its minimum production, storage, service pump, or pmasure meintenance requiremenLS, or eny
o�er nquiromeats imposed on Cnstomor under Texes Admini4hative Code, Cltaptets 290 or 291, oc any other
requ�ment of law. Costomer also a�ras that City is nnder no obligation to increese any of its water utility
int�satn�cdue ar capecity in orda to satisfy atry of tha provisions of this Co�
1.1 Delivery Poimt The dolivery point(s) shall be [ocated on a tm inch (10'� main on the north side o£ Old Iowa
Parlc Iiighway, 2,Sp0 feet west of Wellmgwn Road; or another satisfactory delivay poi� wilh the approval of City.
• ,
1.Z Qualiiy of'Watar. City vrn11 exercise due diligenex and follow best roanage,mert Qractices to TRee� t�'e appGcable
drinlcing water qusiity atanderds for Water snd any tequitement of law for Waiar furnished to Customer pwsusat to
this Contract.
1.3 Customer System Reqairements. Once Custoa►er takes Watcr f�om the delivery Poicrt(s), Cusbo�er is solely
[esponsible for complying with the requo'ements under Ta�as Adminishativc Cade, Chaptas 290 or 291, or any
otha tequirement of law. Cnstomer shall hgve tha r�osibility to taasport the Watar 5om the delivery point(s) to
its ooesumers. including imparting additional pressuro to adequately secve Cusbomer's comvmers.
lA. lYleteriug. Customer shall fumish, insffill oPeeate and mamta�n at rts mvn expense at the delrvery point(s). the
necessary metaring oquiPtnent, incloding a meter 6ouse or pit, and nequired daviees of standard tYPg f� P��h'
meas�ving sad �ecording the qaa�ity of Water deliverod. Ciiy and Cusbomar s6a(1 agree an t6e type of any
replacement meta before purchase by Customer. Motering eqnipment s�sll be c�'brated by �bomer whenever
requested by City, but aot mae fmyueatly tben once evCy 12 months. Within 30 days sfter such calibaa#ion,
G�Stomer shall fumish a ceriificarion of such calibration to the Director of Public Works of City, or his �asignee. A
meOer t�Ge[ing not m0�a then 2% 8bave or belOW the rated Cspacity 0£ the maLer Ehetl be deenled aCCUrate. Thc
previons resding of aay mater discloaed by test to be ros�xnuate s]�e11 be conected for the 12 mont�s previous to such
test ia accordance with the peroentage of inaccuracy fouad by s�ch tests end existing ra�ords. If any me�r fails to
register fot any period, the amouat of Water fumished daring such paiod shall be deemod to ba the amouat of Wates
�iverppd in the oprmsponding period immediately paior m the failura, based on eavsting recocds mless City end
Cusbomer shall agree in writing apon a di�ent mmount- If Castomds measuring equipment is oot of service for 30
days or moie, CitY �Y P��4 install end maiotain aoy required measuring equipment, as datamined by City, and
c6�arge the �ense thaefore to Customea.
Ditring my tea�nsble houts, City shall have eccxss t,o the meterin8 e4�Pment. City shall further dave access to all
te�ds patin�t to detamining the measncement aud qunntity of Watrr acWeliy delivered- Cuatom� agus that
City may famish, install, a�perate end mai�taie check mebeas, should City so chovse. L�+stomet slso agroes thst the
dasign and constraction of its matarin8 oquipment will facilitate City's insrallation sad operation of check meters.
� Crty wil� read the Customer waler meter on the first norme( work day of each month during the tam of this Contract
Customor and City shell Law 5roe access to read meteis daily if they so desire_ City v�n71 provide Customer, no later
then the lOth day of mch month, with an itemir�d stat�ent showiag the amount of Waber metered to Customer
during the preceding month and the tes�lting chffiges. G�sto�er shall pay to City the amount of the itemized
statemont no later than tbe 20th day of the montb in which the charges ac�e billed.
All secvices on G�stomer's Systom shall be sepm'ately mabeted.
2A. Water Rates. Until chaaged UY CitY the oost of Wattr purchasad Isy CasWmea shall be $3.1845 par 1,000
gsllons or S23820 per 100 cnbic feet. 't3a rate�s to Customar fa� WatEr shell be subjed W change each year as a
crsuit of a cost-of-servi�x study using tlu rete principles in �ction 2.1. VJhea a cost-0f-service study �s conducted,
C�y wiQ pcm,ide tho resuit4 end tha n�w rates to �Stomer. The now rabes wiIl become effective at the beginning of
each Wffies Year. Adjusmntnts to tates dces not � an amendment to the Contract. Tf Customer exceals
either the Monthly Qaantiry or the Annual Qoantily, the City shall be e�itled tn bdl for such exceedance and
Customer hercbY 88Teas to PaY for snch �oe a� 2.0 tunas the water rata.
2.1. Annual CL'nges to Wsiee Rate9. Customar aut6oriz� the rates for Waber to ba changed annually, based on the
following rate seuing principles:
s. Rcvenue requ'vemmts to be determined on utility basis at an agreed test yem's original Cost adjusted 30°k
taward cumnt cost to cova its cost and a� compensation for awn�ship. 'I7u eest year shaU be the most
recert andited City fiscal year.
b. City to reoeive a Rate of Retum on the egreed adjusted valne Rate Base eqaal to a co�pos�e of the
utiiity's test year embedded cosE of money waighted on the debt portioa of cspital �im�ested ia plant in service
Do,w'f nf'f
and the utilit�s latiest cost of moaey weightad on the iemainin$ e9uitY Portion °f pl�t in s�vi� t° °°ver its
risks.
c: AlI mcisting resarvoics and associated facilities to ba included in com�mon rate bese. Wlwlesale customers
es cless (eiWer raw waber only. raw water bansmitbed, 4reated water only and Ocansmitted treated water) will
PaY @►eir proportionate share of all wsts based on cacremt usa
d. A flat rate (voiume anly� shall be c6arged, with allocation of 100'�o canent use b� ancourage consarvation
and ihereby cesnitmg in efficient atilia�tion of the waber system; provided, however tbet We amount billad
eech month s6all never be Iess t�an a�+ sgreed atonihly minimam char�e.
e. The risk of fmancing al! future raw water transmission lines and reservou�s must be borne iry the City
Water utility, and all costs will be allocaced m all whoksale custaners on currrnt use basis.
The rabes wiU ye considexed changed oa the leter of (F) ihe date City's Dir�ector of Puhlic VJorks sends a written
Alotice of Rebe Mod'dYCation to Gbstomer's addrass as providad ia this Conuad a Z2) the effective dste of the
afaemeationed Notice of Rate Modificatioa
2.2. Disputed Rates. Cu.�mer stipulatos and agrees that tho ratg rau settin8 m�wd� � PoEicies specified in this
Contiact are fairc, just, and reasonabiq and without diac�ination. Further, if (�stomer believes t�t cates bave been
modiSed in a mann� thst fails to wnfam to the afozementioned p�inciples or are othervviso established in a manaer
that is not jast a resaoneble, then Cusbomer most sond a written Natico of Appeal, co�inmg the wriiten approval of
the Daectors, to City's City Managa, 30 cakndar days after City's wrRten issuance of tha new rates . to the
Cusbomar. To be effacxive, such Natica of Appeal muat oo�in a statem�t. sworn to by all di�ctors of C�atomer
and all experts the C�stoma iatends to ase to assat the improPer. oajust, or mreasoneble manner of the ratas, that
eatirely states the fuIl and oomplete basis upon wluch ihe Customer bolieves that the �bes were impcoperlY, �1�Y
or uafairty establiahed. Upon receipt of the Natice of Appeal, City's City Managcr will consider the appeat amd
axamine tha rate determination p�ocess and result If City's CitY Manage� dob�*mines the appeal is weil foimded,
helshe msy reconsider the ratae and issue new, higher or lower ratos based on the iafarmation submitted and otha
mfamediam dotermined by sabsequent mvestiBAtion thanof.
If Custo�a at any time dispntes the amount to be paid by it w City, Custnm� shel] nevertheless promptly meke the
disputed payme�t or paym�ts. If it is subsequentiy detuminod 6'Y or aBreed that the disputad emo�mt paid by
G�sbomnec should have baa lecs or mora, CitY s6all revise and resllocate Cusb�mer's paymemts in a manner tlmt
Customer or City will rocaver the amount properly dne.
Tf a court, the Commission, � any fedesal or state regnlatory anthority Sada that City's ratas � policies for dnlivering
Wffier to Customer imder this Conaact are unreaSOnable a otherwise un�forceeble, City may immediately teaminate
this Contract widiout liability to Gti.sbnmer. By signing ti�is Contract, C�stoma stipulates end agrees thet City and its
other customers will bo prejudicad if Custn�er avoids the obIi�tion to pay tda rates for Wet� spec��fied in this
Cont�sct wLile axepting the bane5ts of obfaining Waber from City. Nothiag in this Contract shall be consdued as
eonstitu6ng an imdertatong by City to fivaieh Watar to Customer accept pursuant tv the teams of this Co�sct. If
Costomer inRiates or ps�ticipebes in anY P��IIS �B Cityrs cates and policies under this Co�rad and
advocates a position that is adverse to City and City prevsils, C�ebomer shs11 pay Crty for its expenses, inc[uding
attnmeys' fees and expeR witness fees, in the proc�d'mg within 30 days afta C�y's dunand fior payment
iVotwitfistanding, City shall nov� have any oblig�tion to pay the auaneys' fees or expcit £ees of Customer as a result
of any feo ddeiminatiom or proceading relating Lo t�is Contract
2.3. Addidoasti Char�es. In the event that a�r seles or asa taxes, or tucea, asaessments, or charg�s of any similar
natiae ate impoaed on diverting. storing. deliverin6. �Se �Po��& �n& selling, using, or conamoing the
Water received by G�Stomer from the Delivery Point, the amoimt of the tsx, assessmait, or c6arge shall be bome by
Cnstomer, in addiaon to all Whea cberges, and whanevu City shel! be nquited bo pay, collax, a remit acry �c,
�ment, or charga on Water �eceived by G�stomer, tixn Cusbomer sheli P�Pt�Y P�Y or reimbuise City for the
tax, a�essmont, or cbarge 6i the manner directed by City.
n.,.. z ..i7 �, _
Z.4. Defauit in Payments. All amounts due and owing to City by Customer sGa11, if not Paid when due, bear interast
�� T� pos�judgment interesc iate set out in Tex_ Finance Code. § 304.043, or any successor staarte, from the
dete when due vntil paid. If any amount due and ow'sng by Cnstomer to City is placed with an attorney for collection,
Custom+et'shall pAy to City, ie addition to alf other paymeats Qrovidod for by this Contrect, inclading int�as� City's
coll«xion �xpanses, including cowt costs end attanays' fees. City sha11, to the extant parmitted bp law suspend
detivery of Wabet firnn the Detivary Poiat to Customer � Customcr ramaina del�queut in euy payments due
hezeuader for a period of 60 days and shall not resume delivery of Weter whi[e C.�s�mec is so delinque� snd �Y,
at its option, tsrmiaate this Contcact without finther liab�lity to Customer. City shalE pursae all legal remedies against
Customer to anforce and pratect the rights of City, City's custonucs and the holdas of City`s bonds. It is undesstood
that the foregoing provisions aro for ffie benefit of tfie ho(ders of Cityrs bonds.
3.0. Pnrpose and Plsce of Use. Costomer shall not be reguirad to fnmish Weter to er►y residern of City. The Parties
hamby sgee that City shall cantinue to sarve these ateaa If City e�ends its GSiy limits. G�stomer will cont�ue to
provide Wabra to eny coasamar of Water from Custnmer until City is able to mdend its own distdbution system to
provide such customers with City's Water. The Water will be osed for mmnicipat usa, including rasidential and
commercial uses, by Customer w'rthia the sutfiorized service aiea of the Cu.stom�r. Castomer's aathorized service
area is [the area located withai Cuswmea�'s Factraterritoriat JurisdicCion ("ETI") boundaryl /[the area authorized in
G�istorna's ce[tificete of comoniencc and n�ossitY ("C�). Ualess written petmission is obtained fnom City,
Watm� shafl not bo providad to othex municipalities andlor rosideMial sud/or cammercisl subdivisions outside the
authaized sarvice area. Such permission will not ba givan to serve a subdivision within the City's Extrgterritqrial
Jurisdidio�n ("ETl") nnless the subdivision complies with thc Subdivision Regulations of tha City of Wichita Falls.
Customer shall not sell aay Water to anY P�� P�Y for msale by sach private puties to thb�d partiea. Gbstomer
shall be allowed to make single conaections to Customar system with noti�c�tion m City af s�h action, provi.ded t]�a
Am�uai Quantity allowable as set out in the Contract is not exceeded. Custamer shall not sell Water to any consamer
oatside of the Customer's suthorized servicc azsa wirthout the approval of Gity.
.. 3.1. Sabaeqaent Ssies of Water/Connectfoa4. City end Gustamer agree that for anY erea of s�vice being pro�ided
, by Custonner tbat Cuaoomer wil! comply with applicable City procadures for pu*Poses of connection and connection
approvals in ar►y area lying with�n City's ETJ boundary (or within thc city limits). F�ather, it is agroed by City and
Custome� that in the evmt af a prrosspechive cnstoma's application for-service outside of City' a ETJ boundary, no pro-
. conditions are bo 6c established or enforced by City in coanedion with at►y requost fv�' service made by at►y applicant
for water serti�ioe.
Custoa�er eacpmssly agrees thet it will nat furnish Water to any user withouk 5rst requiring proof from the applicam
thst the property to be sarviced has been plattad 'm accordance with Toxas Local Govemmant Codo Chepter 212, as it
may be amanded from time to time, withm tha Co�act term. When a meter is approved by the Customer, such
approvat �al1 be tied to the lend and automatically approved to the �'ent owner of the land.
4.0. Water Shortagee. In the evaat of an axtended sEtortage of 'Watet, or the supply of Wster available to City is
otherwiae dimiaisixd over sn axkemded period of time so that it becomes n�ry to ratioa the Waber sold to
citizens of City, the supply of Water to Customer shatl be rodaced or diminishad in the same ratio or proportion as
the snpply to the citizens of City is reduced or diminished The Waxer bo be disfributed shall ba fnrth� divided in
accordance with Texas We6er Code $ l 1.039.
4.L Water Couservation and Droaght Coufingency Plan. The Cnstnmer agrees to impl�t and aiforce City's
WaLer Conservation �d Drought Contmg�cy Plan Uuough all sabsequent sales of Water and shall include such
obligatioa in any subsoquerrt conttact.for sale t1�at Customer may execara with azry third party purohas� of Water.
F�cther, the G�stomer agceas oo initiate at lesst the rest�ictions of said Drought Co�ingency.Plaa that ate be'sng
implemented within the City. The Customer may impleuient more severe restrictioas than City, but shatl not enact
leas sevore nstriations thaa e=e cu�rently ai effect m the City. If Custome.r fails to implement a drought co�inganeY
plan with nestrie�ons that �ulate or exceed City's Drought Contingeucy Plmi whea trigger conditions occur, then
Cit�s City Maaager is authorized to institute rationin8 pu�suant to anY ePPlicable wLolesale waoor c�tracts,
rs►cluding this Contrect, as well as oaforce a�ry contractual, stBRutory, or wmmon law remedies availabla m City
necxssary to probect the publ'tc weif8te. City's Weaer made available to Customer whea Customer is nM in
s�,.P � ..r�
compliance with City's W�r Conservation aad Drought Contingency Plan will be reduced to the amount of Wata
that City's City Manager estimatas would bc necessecy fio satisfy G�sbomer's demand if Customer was operating in
compliencx wiW both City's and Customer's Drought Contingency Plens.
5.0. liules and ItegalAtio�. To the exteat pumitted by applicabk law, Customer's tariff and applicable TCEQ
regulations, customcr e�cgressly ag�ees that it wili not famish water to aay usea without fust iequiring proof from
• the applicc�nt that any wastewsta' 8ene�ed from the use of Weter supp[ied will be disQosed of in a manner
consistent with civreat TCEQ regulations. Customer agreos to termmate watar sorvicc to a�ry user with a continuing
w�abated public nnisence, as defined in the Texas Health aad Safd.y Code, upon receiving written notice nequesting
such tarminatioa from TCEQ or its designated iepresentstives.
5.1. Bael�ow Protection. Customer and City shall have the authority and responsibility of inspu�ioa to determiae
tbat no cross connections or conditions of bacl�low � becic�iphonage exist on that portion of the system rECeiving
Wabw' und�r p�essute from City's watot mains. City shall have the authoaity to disconnect the Watet until cottecGioa
within the Custnm� S�stem is made. City shetl siso hava the right t� s�upmd delivery of Water in the avent
Gl�stome�r fails to conshcuct, mai�in and operata City's portion of the water dis�nbution sysbem ia substaatial
complieace with such stsndards referted to heccinabove. Prov�ded, however, unless sabs�antial noncompliance
coastiwf�es a safety and/a heahh ha�rd, Ciiy s6all not suspmd the delivery of Watcr without first notifyiaB
�,qtomer in writing of such noncampliance sad affording Cusoomer a m.asonable oppordmity to c�rect smch
noncompliiance. Provided, fnrt6er, in no evant shall City suspend dalivay of WaLer to a�ry portion of C�stome�'s
system nat necessary in isolating the locatioa of such aonc�pIianct.
6.6. Term. This Contract shall exuad for a barm of 1A yesrs from the dste of Co�ract execution. Unless a written
aatice of noa-�reaewal is sant by eithar paRy prior to expiration hereo� at the end of the original b�m, it shali then
sukomatically renew on a year to-year basis. Either party may cancel prior to ratpiration of a tarm for bceach or non-
perfarmance. City may cancel this ConLrad at any tima during aay term of the Cont�et ia the evant Gtisbonnac fails to
maka anY PaY�t due haeimder witbm 60 dsys afta samo becomes dne or, if the G�soomer breaches suy covenant
6arein other than payment of tha monthty statement, snd such breacb continaes for 60 days after City gives Customer
. writtam aotica th�eof.
7.0. No Aatipmeat or Discrimination. Thia Contract shall not be assigoable by either party without the ap�oval of
the oth� psRy. The Parties heteto shsll not discriminate a�rpinst any anployee or applicent for employment or
service ba:ause of race, roligion, colar, sex, nutioflal origin, a8e, or handirsp.
8.0. Indepeadent Contractor. This Coatract is intendod to croabe an independent contracbor relationship, and tl�e
employees of eech pacry shall never be eonsidared tl►e employees of the othec pacty.
9.@. Noticea to Caatomer. Notices firoau Ci1y r�tat►ves to Customer issuad putsuent to this Conuact shall be
effecEive when aeat to the Cusbomet at the following address:
City Secietary — Town of Pleasant Valley
4006 Business 287J
�waPark, Texas 76367
ff a document is scat to Custonner via certificd mail, notice s�all be considered re�xived by tho Custooner if a
tep�asenta�ive of dte �sWmer fails to sign for or aoxpt seid document within 5 days after rxeipt thareo�
10.0. Tifle to Water. Title fot IiabilitY Purposea to all Water supplied hereunder to Customes shall be in City up to
the Poiiat(s) of Delivery, at whieh port�t title shall pass to L�stomer. Notwithstanding, G�stomer wi(1 not obtaia azry
water righta in any wasoewater affiueat 9ows or the continuatioa thereo£
11A city xiEtt to Ezecate other wster supply contrac�. crty mai�ins its righs co emer into auy other wat�
suppty co�racfs witha�rt trstridiam.
�.,,.e c ..c �
12.0. No Third-Party Beneficiaries.
This Contract shall imue oniy W Wc bendrt of the Psrties her�o, �d third pusons not privy hvetn sball not, in aaY
form or manner, be consider�d thitd-pedy b�e5cisries of this Contia�ct Eech party he�eto shall be solety responsible
for the fiilfillment of its customer co� ar commit�nents, and City shall not bo con�hi�ed to be respons�ble far
Cuatomer's co�ts or commitma►ts by virtue of this Contract or sny provision contaiaed hereia.
13.8. Choice oi'Venue.
A!1 e�cts performabla under the teams of this Coniract and all amounts due imder this Coatract, including, but not
limitad W, PaYma►u due under this Contract or damagas �ior the breach of this Conflract, shell be paid and be due �
Wichita Couaty, Tw�as, said Wichita Couniy, Texas, being the place of performance agreed Lo by the Puties to this
Contrsct In the event that any legal Procxding is brought to enforce Wis Conuact a any provision heaeof, the sazne
sha[1 be brought solely in Wichita County, Tmcas.
14.0. Pkdge of Revenne.
Gtistomet represeats and oovenanta that all payments to be mada by it under thia Contiract shall constituce reasonable
aud necesssry oPeiatin8 expensea of its system, and thet sll such paymeats will be msde from the sevenues of its
water system. Cusboma repiesents and has decamined that the vvater supply bo be obtainad from City is absolubely
naxasuy and essantial m the prosent and future operetion of its watar system and is the �ly available and adequate
source of supply of R+ater tha+afore, aad, accordingiy, sll payments required by this Conffect to be made by
Customer shall oonstidrte reeaonable and �esarY oparatin8 ax�ses of Custnmer's system or systams as deseribed
above with the effed that the obligetion bo maloe such paym� from revenuos of such sys0em or systems shall have
priority over any obligatio� to maice any payments 5rom such revenues, whether of principal, intorest, or both with
rtspect to all bonda haetofore or hereafter iseued by Customer with du e�u�paion of any loan to G�etomor from the
United States of Amaica for financing Customer's water systea� With iespect w C.'bsbomer's obligations to the
Unioed States of Amecica for finenciug Cbstomer's wata sysoem, the City and the United Siatos of Am«ica shall
ha� eq�al priority, Cusbomer agaes throu�out tha tetm of this Couuaet to continuously operate and mai�sin its
weter systenn and to f� and collect such rates and cherBes for wster setvixs to be suppliad by its waber system ss
will produce ravenues in en amount equal to at leest (� all of its payments uader this Cont�acz aad (ii) ell other
. amoums as reqused by the provisioos of th� ordinences or resolutions authorizing its revenue bonds or otha
obligations now a h�vafte� outstaading. Unless othawise specifieally provided in writiag by subseaqu�t Conhact
, beiwcen City and Cuscomer, all paymeais dae by Customer aze to be mede from the revwues and inoome roceived
by Customa from tha wvnaship and operation of its water systam.
15A. Indemnity_ Customer shali defend, indemnify and hold hacmless Ciry aad City's offia�s, agants, and
emploYoes finm atl suits, acfions, or claims of nny characbaz, neme end doscriptioa including at6orneys� fees and
ev�enses brought fnr any iqjurias to peisons or damages to property in conuection with the pecfora�es►ce ar a2tempted
performance of this ConUact G�a+M+� ex �lv aatees to d�fond indemnifv nnd hold barmless Cilv aud Ciiv's
offioe�s, a�mta and enwlovees m accm�dance with this ciause ces�rdlaes of whether th� ini or demaCg is caused
in whole or in part bv the acts or oniss+�+^Q in�l�d'manggti�enca of Citv or its affice�s agents or emnlovees or anv
�on of City's prq�y_
16.0. Amendments to be in Writing. The Pertios to this Contracx agree that they have read all provisions of this
Contira� and azry euhibits haew. This Comiact end any exhibits he�to are the compEeLe and exclosive statements of
the terms agced upon. suPersedi"S all prior Contracts or stateme�, either writbrn or otal. No modification,
ammdment or edditioa to this Contract is valid unless in writing and sigoed by all Parties hmnw, eucept tLat rates
may be established by Ciiy as p�vvided above.
17.0. Severabi�ty. If acry af tfie provisions of this Conuact (other then the rates end obligatioa w pay for tfie Water)
shall be invalid � unmfo�eable, same shall nnt imn�lidate or affect Ws velidity end enforceabiiity of a�ry other
provision, which provisions shall remsin in fa�e and effed.
18.U. For�x Mnjenre. If by reason of force majeure an}+ party he�to shall be made�+ed uneble whotly or in part m
csrry out its obligations uoder this Coatract. othea then the obligatioa of each Party to make t6e paymenis reqnued by
the Cont�acx, then if such psrty shall give nortice and fpll particulars of such force majeure m writing to 1he other
pen. b nf7
Party within a roasamable time after occurrence of the event ar ca�ua relied on, the obligation of the Party giving snch
notice, so far as il is affected by such fonce msjame, sha11 be suspendad d�ving the continusnce of the iasbility th�
claimed, but for na longer period, and �►y such Party s6all endeavor to remove or overcome such mability with ali
reesonable dispatch. The term "Force Majeure" as employed herein sball mean acts of God, sWces, lockouts, or other
industria! distusbances, acls of pubiic cnemy orders of azry kind of du Government of the Unitod Statos or tl�e State
of Texss, a any Civil or militwy audiorih'. insiut+ection, na�, ePldc�cs, landsl�s, liP��II& eerthquake, tmes,
harricanes, storms, floods. washouts, drou86ts, enests, reslraint of gpvermment and people, civil distwbences.
e�losians, bceakage ar accide�ts to machinery Pipelines or cansls. partial or �tire failuis of water supPly, or on
acoount of any other esuses not reasonably witbin the co�rol of tbe patty claiming such 'vtsbilit3', excluding
�5��
19A. No R+aiver. Fsanre of City to anforce a provision of this Contract doas not wei�a enY future right t° enf°rce
that provision.
20.0. No Joint Ventare. The Parties to this Conhgct agree and acknovv)odge thet thie Contract dces not cteate a joint
venbus, Partriersh{P or joint entexprise, that each Party is not sn ngent of the �r mtitY and that each Party is
�s�ble in accordance with the laws of the State of Texas f� its own negli�a�t or wnongfu( acts or omissions and
for those of its offic�s, agents or emplayees in oonjunc�ion with the perfavuance of services ooverod under tius
Couuact, without wsi�'inB any govornmental immuoity available to �ry or G�stomer wrder Taxas law and without
vvaiving eay dafenses of City or Customer under Tcxas taw.
21.0. Laterprdation sod Reciiala 'Chis Co�act shall not be considered w be mutually drafted in accordance with
negotiscion betvvew the Parties hveto. Accordin8lY, it shall not bo it►texpteted against City on the basis that City
supplied ifs 3anguage or for a�ry other reason. Recitsls shall be incorporeded �nto eod b�e a part of this ConCract
IN V✓ITNESS '4VHEREOF, the Pmties he�tto, acting m►der suthority of thea respectiva govamin8 bodies, have
this Co�ract to e duly executed in thrce couaterparts, each of which shal[ constitute an origina[.
• � City of Wichita Fells
M�� � �
Darran I.ecloer, City Manager
��) ���
ATTEST: ATTEST:
'�
'�� ��. � Lydia Owna, City Clerk
APPROVED AS TO FORM:
Miles Risley, City Auorney
v.,.. � „v-,