Res 115-2010 10/5/2010 RESOLUTION NO. 115-2010
Resolution Authorizing The City Manager To Execute A Potable
Water Supply Contract With The Friberg Cooper Water Supply
Corporation For A Term Of 20 Years
WHEREAS, the Friberg Cooper Water Supply Corporation is organized and
established under provisions of the laws of the State of Texas. One of the duties of the
Friberg Cooper Water Supply Corporation is the operation of 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 owns several water reservoirs and a treatment and
distribution system with capacity capable of serving the present customers of the City
and the estimated number of water users to be served by the Friberg Cooper Water
Supply Corporation;
WHEREAS, the Friberg Cooper Water Supply Corporation entered into a Water
Purchase Contract on June 15, 1979, and subsequently agreed to multiple
modifications to the contract, and this Contract replaces all prior contracts befinreen the
Parties relating to the purchase of potable water;
WHEREAS, by resolution of the Board of Directors of the Friberg Cooper Water
Supply Corporation enacted on the 26 day of August, 2010, it authorized the
continued purchase of Water by the Friberg Cooper Water Supply Corporation under
the terms of this new, mutually agreed upon Contract; and
WHEREAS, the Friberg Cooper Water Supply Corporation is responsible for
operating its water distribution system, and providing Water to its authorized service
area as described within the Contract.
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 attached Potable Water
Purchase Contract with the Friberg Cooper Water Supply Corporation.
PASSED AND APPROVED this the 5 day of October, 2010.
C �+C.c.�....._ �
MAYOR
ATTEST:
y Clerk
Potable Water Purchase Coatract
THI3 CONTRACT for the sale and purchase of potable water (tha "Contract") is entsred into es of the th day of
, 2010, between the City of Wichita Falls, Twcas, heminafter roferred to es "City," aad the
Fn'berg-Cooper Water Supply Corporation, hereinafter refecred to as "Cusbomer" (City and Customer are oollectively
the "Parties").
WF�.REAS, Customer is organized and estab6shed under provisions of the laws of the State of Texss. One of the
duties of Gti►stomer is the operation of a wata distribution system serving water users withia Custom�'s authoriud
service area, end to accomplish this purpose, Cuswmer requires a supply of potable water;
WHEREAS, City owns several water resen+oirs aad a trr.atment and distcibution system (the "City Systam'� with
eapaciry capable of serving the present customers of the City System end the estimated number of water users to be
served by Customer;
WHEREAS, City and Customar entered into a Watar Purc6ase Contract on June 15, 1979, and subsequently agreed
to muhiple modiScetions to the Fo�act, and lhis Conusct reptaces all prior conhacts betwnxn Me PaRies re(ating to
the purchasa of.potable water ("Watet");
WHERFAS, immediately prior to the effective date of this Contract, Customer was not obligated to purchsse Wator
from City and City was not obligated to sell Water to Customer;
WI-�REAS, by resolution of the Board of Diroctors of Customer enacted on tha �_ day of
2010, it authorized the continued purchase of Water by Customer under tha terms of this new,
mutu Fy agreed upon Contrac�
WI�REAS, Customer is responsibla for opere6ng its water distribution system ("Customer System'�, and providing
Water to its authorized service area as described hee�ein; and
WAQtF.AS, Customer is requirad by Texas Commission on Environmental Quality ("TCEQ") ngulatioas to
implement and enforce City's Weter Conservation and Drought Contingency Plan through all subsequent sales of
Wator and shall include such obligation in eny subsequent contr�t for saie that Customer may execute with any tttird
perty purchaser ofWater.
NOW, THEREFORE, KNOW ALL MEN BY Tf�SE PRESENTS, t6at for value received, CiLy and Customer
mntually agree to the following, to wit:
1.0. Delivery of Water. City agrees to sell and to deliver Water undar this Contract to Customer at the delivory
poi�rt(s) specified heroin, and Customer agreees to take at the delivery point(s) all Water -required fior use during the
term of this Contract, not to ezcced the annual quantity of Wat�. The monthly quantity of Wat� to be furnished by
City to Customer shalf not exceed 10,500,000 gallons per month ("MontWy Quantity'� not to exceed a maximum of
55,000,000 gallons per year ("Annual Quantity") in any Water Yoar imless a greater amount is approved in writing
by City. "Water Yeai" means the period October 1 of oach cal�dar year througt► Septembar 30 of the noxt following
celeadar yeer. The Monthly Quantity is calculated as the emovnt of watx Customer consumes in a normal monthly
billing cycle. Customer shall not take more tLan t!►e Annual Quantity without prior written consent of City.
Customer agrees that City is unda no obligation to provide Cnstoma with a su�icient amount of Water for
Customer to meet its minimum production, storage, service pump, or pressure maiatenance requirements, or any
other requirements imposed on Customer under Texas Administrgtive Code, Chaptcrs 290 or 291, or any other
requirameot of law. Customer also agroes t6at City is under no obligation to increase any of its watar utility
infrestructuro � capacity in order to satisfy any of the provisions of this Contract.
1.1 Ddivery Point. The delivery po�nt(s) shall be locatcd on an eight inch (8") main on the west side of Highway
240, 55 feet uorth of Hemme Road; or another satisfactory dalivery point with the approval of City.
1.2 Qnality of Water. City will exercise due diligence and follow best management practices to meet the applicable
drinking wator quality standazds for Water and any requireaient of law for Water furnished to Customer pursuant to
this Contrect. • ,
1.3 Cnstomer System Rcqniroments. Once G�stomer takes Water Erom the delivery point(s), Cuswmer is solely
rosponsible for cocnplying with the requirements under Teses Adminishafive Code, Chapters 290 or 291, or any
other requirement of iaw. Customer st�sll have the responsibility W transpat the Water from the delivery point(s) to
its wnsumers, including imparting additional presstue to adequstely serve Customer's consumers.
1.4. Metering. Customer shall furnish, install, operate and maintain at its own expense at the delivery point(s), the
necassery metering equipmern, including a meter housa or pit, end required devicos of stendazd type for properly
measuring and recording the quazrtity of Water delivered. City and Customer shall agree on the type of any
replacement meter before purc�ase by Customer. Metering equipment shall be calibreted !ry Customer whenevar
requested by City, but not more freque�ly than once every 12 months. Within 30 days atter such calibration,
Customar shall furnish a certification of such celibration to tho Diroctor of Public Works of City, or his designea. A
meter registering nat more thsn 2% above or below the rated capacity of the metec shaU be deemed accurate. Tlie
previous readiag of any meter disclosed by test to be inaccu�ate shall be corrected for the 12 months previous to such
test in accordance with the percenffige of iaaccuracy found by such tests and existing records. If any meter fails to
ragister for any period, We amount of Watar fiunished during such p�iod shatl be deemed to be the amount of Water
divw4ed in the comsponding period immediabely prior to die failure, bas�d on existing records unless City aad
Customer shell agree in writing upon a different amount If Customer's measuring equipment is out of service for 30
deys or more, City may purchasq install and maintain any rcquited measuring equipment, as de4ermined by City, and
charge the expense theref�e to Customer.
D�ring any reasonable honrs, City shall have access to the metering equipment City shell fucther have access to all
records pertinent to dettrmining the measurement and quantity of Water actually delivered. Customer agrees that
City may fumish, install, operate and maintain check meters, should City so choosa. Customer also agrees that the
design and construction of its metering equipment will facilitate City's inctallation and operation of check mcters.
City wili nead the Customer water met� on the first normal work day of each month during the texm of this Contract.
Cnstomer and City shall have free access to read meters daily if they so desire. City will provide Customer, no later
than the lOW day bf each month, with an itemized statsmant showing the amoimt of Water metered to (:vstomer
during the proceding month and the msulting charges. Customer shall pay to City the amount of the itemized
statement no later then the 20th day of the month in which the charges are billed.
All services on Customer's System shall be separatefy metered.
2.0. R+ater Ratea. Until changed by City, the cost of Water purc6ased by Customer shatl be $3.1845 per 1,000
gellons or $23820 per 100 cubic feet. The rates to Customer for Water shall be subject to change each year es a
rosult of a cost-of-service study using the rate principles in section 2.1. When a cost of-service study is c�nducted,
City will provide tfie results and the new rates to Customer. The new rates will bxome effective at the beginning of
oach Water Year. Adjustments to rates dces not constitute an amendment to iha Co�ac� If GY�stomar exceeds
either the Monthly Quantity or ffie Annual Quantity, the City shall be entitled to bill for such exceedance and
Customer hereby agrees to pay for such wcceedance at 2.0 times the water rate.
2.1. Annual Changea to Water Rates. Customer authorizes the rates for Water to be chaaged annually, based on the
fiollowing rate set6ng principles:
a. Revenue requirement4 to be determinad on utility basis at an agreed test yea�'s original Cost adjusted 30%
toward curront cost to cover its cost and as compa►sation for ownership. The test year shall be the most
recent audited City fiscal year.
b. City to receive a Rate of Retum on the agreed adjusted value Rate Base equal to a composite of the
utiiity's test year embedded cost of money weighted on'the debt portion of capital invested in plant in sesvice
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and the utility's latest cost of money weighted on the remaining equity portion of plant in service to cover its
risks.
c. All existing reservoirs and associated facilities to be included in common rate base. Wholesale customers
as c(ass (either raw water only, raw waur trensmitted, hroated water only and h�ensmitte:d treated waber) adll
pay tY►eir pnoportioaete ahare of all costs basod on current use.
d A flat rate (volume only), shall be chsrged, with allocatiop of 100% current use to encoiaage conservation
and thereby resulting in ef}'icient utili7ation of the water system; provided, however, that the amount billed
each month shall never be less than any agreed monthly minimum charge.
e. The risk of financing all future raw waber transmission fines and roservoirs must be borne by the City
Water utility, and all costs will be allocated to all wholesale customers on curnnt use basis.
The ratss will be consideied changed on the later of (1) the date City's Director of Public Works sends a written
Notice of Rate Modification to Customer's address as provided in this Contract or (Z) the effective date of the
aforomentioned Notice of Rate Mod�cation.
2.2. Diapated Rates. G�stomer stipulates end a� that the rabe, rate setting methods, and policies specifiod in this
Contract ara fair, just, and reasonable, aad without discrimination. Fuither, if Customer believes that rates have bean
modified in a mannei� diat fails to conform to the aforamentioned principfas or a�e otherwise establishod in a manner
that ia not just or reasonable, thon G�stomor must send a writtea Notiee of Appeal, containing the vvritten approval of
the Directors, to City's City Menager, 30 calendar days after City's written issuance of the new rates to the
Customer. To be effective, such Notice of Appeal must contain a statement, swom to by all directors of Customar
and all w�erts the G�stom� intends to nse to assert tho impa�oPer, unJust, or wnoasonable manner of the rates, tha2
entirely states the full and complete basis upon which the Customer believes that the ratas were improperly, unjustly
or unfairly established Upon recoipc of the Notice of Appeal, City's City Menager will consider the sppeat and
� exemine the rate datermination process and result. If City's City Manager determines the eppeel is well founded,
he/she may reconsider the rates end issue new, lrigher or lower rates based on the information submiued and other
infotmation determined by subsequeiR inv�tigetion thereof.
If Customer at any time disputes the amount to be paid by it to City, Gwstomer shall nevertheloss promptly make the
disputed payment or payments. If it is subsequently detemiined by or agreed that the disputed amount paid by
Customer should have been less or more, City shell revise and mallocate Customor's payments in a menner thet
Customer or City will recover the emount properly due.
If a court, the Commission, or eny federal or stabe regulatory authority finds that City's rafes or policies for doGveting
Water to Cusbomer under this Contract are unreasonable or othaiwise unenfoeceable, City may immediately terminate
this Contract without liability to Customer. By signing this Conh�act, Customor stipulates and agrees that City and itc
other cuatomers wilt be projudiced if Customer avoids the obtigation to pay the rates for Water spccified in this
Contract while accepting the benefits of obtaining Watu from City. Nothing in this Contract shall be construed as
constituting an undertaking by City to furnish Watra to Customer accept pursuant to the urms of this Contract. If
Customer initiates or perticipates in any proceeding regarding City's rffies and policies und� this Contract sad
advocatas a position that is advarso to City and City prevails. Customer shall pay City for its exp�nses, ineluding
attorneys' fiees and expert witaess fees, in the proceeding within 30 days after City's deroand for payman�
Notwithstanding, City shall naver have any obligation to pay the attomays' fees or expert feeg of Customer as a result
of eny fee determination or proceeding releting to ttus Contract.
23. Additioaat Chargea. Ia the event that any sales or use taxes, or taxes, assessments, or charges of airy similar
naUue are imposad on diverting, sooring, delivering, gathoring. impounding, taking. selling, using, or consuming the
Water raxived by Customer from the Delivery Point, We amount of the tax, assessment, or charge shsll be boine by
Customer, in addition to all other charges, and whenev� City shall ba required to pay, collect, or remit any tax,
assessment, or charge on Waber received by Customer, then Customer shell promptly pay or roimburse City for the
tax, assessment, or charge in tha manner directod by City.
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2.4. Default in Paymenta All amounts due and owing to City by Customer shall, if not paid when due, bear interest
at the Texas post judgment interest rate set out in Tex Finsnce Code. g 304.003, or any succ� statute, from the
date when due �until paid. If any amount due snd owing by Gtistomer to City is placed with an attomey for collection,
Customer shall pay to City, in addition to all other payments provided for by this Contrect, including interest, City's
collaction expensos, including court costs and suomeys' fees. City shall, to the exteat pexmitte,d by law, svspend
delivery of Water from the Delivery Point to Customer if Customer remains delinquem in atry payments due
hereundar for a period of 60 days and shall not resume delivery of Water while Gtistomar is so delinqueat and may,
at its option, taminate this Contract without fiuther liability to Customer. City shall pursuo al( legal remedies against
Customer to enforce and protect the rights of City, City's customers, and the holders of City's bonds. It is understood
that tha foregoing provisions are for the benafit of the holders of City's bonds.
3.0. Purpose and Place of Use. Customer shall not ba required to fumish Water to any rosidarn of City. The Partias
hereby agrce that City shell cominue to serva these areas. If City extends its City Iimits, Customp� will continue to
provide Water to any consumer of Water from Customer until City is able to extcnd its own distribution system to
provide sueh cuatomers with City's Water. The V✓ater will be used for municipal use, including residential aad
cotnmercial uses, by Customer within the authorized smvice a�ea of the Customer. Castomer's authorized service
area is [the area located within Customer's ExUraterritorisl Jurisdiction ("ETJ") boundary] /[the a�ea authorized ia
Gtistomer's cxrtificate of convenience and necassity ("CCN'�]. Unlesa vvritten permission is obtained from City,
Water shall not be provided to other m�micipalitias and/or residential and/or commeroial subdivisions ouuide tS►e
suthorized service eroa. Such permission will not be given to suve a subdivision within the City's Factraterritorial
Jurisdiction ("ETJ") unless the subdivision compties with tha Subdivision Regulations of the City of Wichiffi Falls.
Customar shall not sell any Water to any private party for rosale by sueh private parties to third parties. Customer
shaA be allowed to make singia connections to Customer system with notifica#ion to City of such action, provided the
Annual Quantity sllowable as set out in the Contract is not excxeded. C�stomer shalt not sell Water to azry consumer
outside o£the Customer's authorized service area without the approvat of City.
3.1. SnMequent Sales of Water/Connectlons. City and Customer agroe that for any area of service being provided
by Customer that Cusbomer will comply with applicable City procedures for pucposes of connection and connection
approvals in a�ry area lying within City's ETJ boundary (or within the city limits). Further, it is agreed by City and
Customer that in Uie event of a prospective customar's application for serviee outside of City' s ETJ boundary, no pro-
• conditions are to be esfablished or enforced by City in connoction with any request for swvice made by any applicant
for water service.
G�stomer expressiy agrees that it will not fumish Wator to any user without first requiring proof from the applicant
that the property to be serviced has been platted in acxordance with Texas Local Governmeat Code Chapter 212, as it
may be amended from time to time, within the Contract term. When a meter is approved by the Cusbomer, such
approval shal! be tied to the land and automatically approved to the current owner of the land.
4.0. Water Shortsges. In the evern of an extended shortage of Water, or the supply of Water available to City is
otherwise diminished ovar an extended period of time so that it becomes nxxssary to ration t6e Water sold to
citizens of City, the supply of Water to Customer shall be reduced a diminished in the seme ratio or proportioa as
tho supply to the citizens of City is reducxd or diminished The Water to be distributed shall be further divided in
accordance with Texas Water Code § 11.039.
4.1. Wster Conservation aad Drnught Contingency Plan. T6o G�stomer agrees to implemeM and enfo�e City's
Water Conservation and Drought Contingency Plan through all subsequent sales of 'Water and shall include such
obligation in any subsequent contract for sale that Custom� may execute with any third party purcheser of Water.
Further, the Customer agrees to initiate at least the restrictions of said Drought Contingency Plan that are being
implomented within the City. The Customex may impleatent more severo restrictions �an City, but shall not onact
tess severe restrictions than are currently in effect in the City. If Cusbomer fails bo implement a drought contingency
plan with restrictions that emulate or exceed City's Drought Contingency P1an when trigger conditions occur, then
City's City Manager is authorized to instit�ete rationing pucsuant to any applicable wholesale water contracts,
including tlus Contract, as well as enforce any contractual, statutory, or common Iaw remedies available to City
necessary to protect tho public welfare. City's Water made available to Customer when Customer is not in
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compliance with City's Water Conservation aad Drought Contingency Plan will be reduced to the amount of Water
that City's City Manager estimates would be necessary to satisfy Customer's demand if Customer was operaUitg in
compliance with both City's end Customer's Drought Contingency Plens.
5.0. Rnles and RegalaHona To the extent permittsd by applicable law, Customer's tariff and applicable TCEQ
regulations, Cusbom� exprassly agi�ees dsat it will not furnish Water to any user without fust raryiring proof &om
the applicant that any wastewater genecated from the use of Watea� supplied will be disposed of in a manner
consistent with current TCEQ regulations. C1�stomer agrees to tarminate water service t� aay user with a continuing
unabated publ'ec nuisance, as defined in the Texas Health and Safoty Code, upon ra:eiving written notice requesting
such teamination from TCEQ or its designated represantatives.
5.1. Bacicflow Protaxion. Customer and City shall have the aut6ority and responsibility of inspaction to detern►ine
thet no eross connactions or c�nditions of becl�low or back-siphonage exist on that portion of tfte system receiving
Water under pressure from City's water mains. City shalt 6ave the suthority to disconnect the Watv until correction
within the Customer System is made. City shall also have the right to suspend delivery of Water in the event
Customer fails to cflnstruct, maintain sod operate City's portion of the water distribution system in substantial
compliance with such standards nfe�red to hereinabove. Provided, however, unless substantial noncompli�tce
constitutes a safety end/or health he7ard, City shall not suspend the delivery of Water without 5rst notifying
Customer in writing of such noncompliance aad affording Customer a reesonable opportuaity to cmrect such
noncompliance. Provided, fnrther, in no event shall City svspend delivery of Water to auy portion of Customer's
system not necessary in isolating the location of such noncompliance.
6.0. Term. This Contract shall extond for a term of 20 yesys from the date of Contract execution. Unless a written
notice of non-�enewa! is sent by either party prior to expiration hereo� at the end of the original tam, it shall then
automatically renew on a year-to-year besis. Either perty may cancel prior to expiration of a term for breach or noo-
pe�fomiance. City may cancel this Co�act at et►y time doring any tam of the Contract in the event Customer fails to
make any payment due hereunder within 60 days after same becomes due or, if the Customer breaches any cove;nant
herein other than payment of the monthly statement, and such breach contiaues for 60 days after City gives Customor
written notice thereof.
7.0. No Aseignment or Diectiminalion. This Contract shall not be assignabk by either party without the approval of
the otha perty+. The Perties hemto s6e11 not discriminafe against any employee or applicent for employmem or
service because of race, ieligion, color, se�c, national origin, age, or handicap.
&Q. Independent Contractor. This Contract is intended to create sn independent contrnctor.relationship, anQ the
employees of each periy sLall never be oonsidered the employeas of the other parly.
9.0. Noticea to C�tomer. Notices &om City ropresentatives to Customu issued pursuant to this Contract shall be
effective whan sent to the Gt�stomer at the following address:
Friberg-Cooper WSC - Board President
1 �4 Bailey Road
Wichita Falls, Texss 76305
If e document is sent to Customer via cxrtified mail, notice shall be considered received by the Customer if a
representative of the G�stomer fails to sign for or accept said dociunont within 5 days after receipt thereof.
10.0. Tide W Water. Title for liabiiity purposes to a11 Waur supplied hareunder to Customer shall be in City ap to
tha Point(s) of Delivery, at which poirt title shall pass to Customer. Notwithstanding, Customer will not obtain any
weter rights in azry wastewater ef�uent flows or the continuation thaeof.
11.0 City Rlght to Ezecute otLer Water Sapply Contracts. City maintains its right to enter into any other water
supply conqacta without mstriction.
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12.0. No Third-Pariy Beneficiaries.
This Contract shall inuro only W the benefit of the PsRies hereto, and third persons not privy hereto shall not, in atty
form or menner, be coasidered third-perty beneficiaries of this Contract. Each party her�to shall be solely responsible
for the fulfillment of its customer co�racts or commitments, and City shall not be cons4ued to be responsible for
Customer's contracts or commitments by virtue of this Contract or any provision contaiaed heroin.
13.0. Choitx of Venne.
A!1 acts performable under the terms of this Contract and all amounts due under this Contract, including, but not
limited to, �yments due under this Contract or damages for the lmach of this Contract, shall be paid and be due in
Wichita County, Texas, said Wichita County, Texas, being tha place of performance agroed to by the Perties to this
Contract. In the event that any legal procceding is brought W enfonx this ContracL or acry provision hereo� the same
shall be brought soleiy in Wichita County, Texss.
14.0. Pledga of Revenne.
Customer represents and covenants that all payments to be made by it under this Contract shall constituto reasonable
and necessary operating cxpenses of its systcm, and that a(1 such payments will be made from the revenues of its
water system. Customer represeats aad has dat�rmined that the water supply to be obtained from City is absolutely
necessary and essendal to the present and firture operation of its water system aad is the only available and adoquate
sow�ce of supply of Wab� thereforq and, accordingly, all paymaits required by this Contrect to be made by
Customer shall constitute ceasonable and n�essary operating expenses of Customer's system or systems as described
above with the effect that the obligation to make such payments from revenues of such system or systems shall have
priority over airy obligation to make any payments from such revenues, whether of priacipal, interest, or both, with
respect to all bonds here�ofore or hereaftsr issued by G�atomea with the wcception of any loan to Customer from the
United States of America for financing Ctistomer's waber system. With respect to Customer's obligations to the
Unitod States of America for financing Cuscomer's water system, the City and the United States of America shell
have equal priority. Customer agrees throughout the term of this Contract to continuously operate and maintain its
' water system and to fix and collect such rates and charges for watsr services to be suppliod by its water system as
will produce revenues in an amount equal to at least (7 all of its payments under this Contiracx and (ii) all other
amounu as required by the provisions of the ordinances or resolutions authorizing its revenue bonds or othea
obligations now or hereafter outstanding. Unless otherwise specificaity provided in writing by subsequent Contract
between City and Cnstomer, all payments due by Customer are to be made from the rovenues and income received
by Cvstomer &om the ownership and operation of its water system.
15.0. Indemnity. Customer shall defend, indemnify and hoid harmless City and City's officers, agents, and
employees from all suits, actions, or claims of any c(iaracber, name and description including attorneys' fees and
expeases brought for any injuries to parsoas or demages to properly in connoction with the porformance or attampted
performence of this Conuact. Cus �e.r exore.sslv aareas to def�d. indamnify and hold harmless Citv and Cib+'s
officers. agents. and emplovees in accordance with this clause rcgardless of whether the injurv or ge is cause�
in whole or in part bv the acts. or omissions. including nee(ieence, of Citv or ita officers. agents or emplovees or any
condition of Citv's propertv.
16.0. Amendments to be in Wriflng. The PaRies to this Contract agree t6at they have read all provisions of this
Contract and any exhibits hereto. This Conuact and any exhibits hercto are the complete aad exclusive statemeuts of
the terms agreed upon, superseding all prior Contracts or sffitements, either written or oral. No modification,
amendment, or addition to this Contract is valid unless in writiag and signed by all Parties hereto, except that rates
may be established by City as provided above.
17.0. Severability. If airy of ffie provisions of this Contract (other than the rstes and obligation to pay for the Water)
shall be invalid or unenforceable, same shall not invalidate or affect the validity and enforceability of az►y other
provision, which provisions shall rcmaen in force and effect.
18.0. Force Majeure. If by reeson of force majeure any party hereto shall be rendered unabla wholly or in part to
carry out its obligations under this Contraot, other than the obliga6on of each Party to make the payments required by
the Contiact, then if such perty shall give notice and full particulars of such force majeure in writing to the other
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Party within a reasonable 6me after occurrence of the event or cause relied on, the obligation of the Party giving such
notice, so far as it is affected by such force majeure, shall be suspendad during the continuance of ffie inability then
claimed, but for no lqngar pariod, aQd aay such Party shall endeavor to remova or overcome such inability with all
reasonable dispatch. The term "Force Majeure" es employed herein shall mean acts of God, strikes, lockouts, or other
industrial disturbances, acts of public cnemy, orders of any kind of the Govemment of the United States or the State
of T� or any Civil or military suihority, insurrecteon, riots, epidemics, landslides, lightning, earthquake, fires,
hurricanes, storms, floods, washouts, droughts, anests, restraint of govammont and people, civil distur5ancas,
explosions, brealcage or accidents to machinery, pipelines or canals, partial or �ntire failure of water supply, or on
account of any other causes not reasonably within the control of the parcy claiming such inability, excluding
negligence.
19.U. No Waiver. Failure of City to enforce a provision of this Contract dces not waive any future right to enforce
that provision.
20.0. No Joint Venture. The Parties to this Contract agi�ee and acknowledge that th�s Contract does not create a joint
vmturo, partn�xship, or joint ent�prise, that sach Party is not an agoat of the other ontity, and that each Parry is
responsible in accordance with the laws of the State of Teuas for its own negligent or wrongfW acts or omissions and
for Ehose of its officers, agents or cmployees in conjunction with the pa�formance of services covered under this
Contract, without waiving az►y governmental immunity available to City or Customer under Te�cas !aw end without
waiving any defenses of City or Customer under Texas 1aw.
21.0. Interpretadoa snd Recitala. This Contract shaU not be considered to be mutually drafted in accordance with
negotiation betwcen the Parties heroto. Accordingly, it shall not be interpreted against City on the besis that City
supplied its language or for any other reason. Recitals shall be incorporated into and become a part of this Contract.
IN WITNESS WHEREOF, the Parties hereto, acting under suthority of their respective governing bodies, have
caused this Contract to be duly executed in three counterparts, each of which shall constitute an originaL
�( i1 DD /� ���� ��J�. City of Wtchita Fsils
� c,. Q ��� Darron Leiker, City Manager
(seal) (seat)
ATTEST: ATTEST:
�
�re�re Lydia Ozune, City Clerk
APPROVED AS TO FORM:
Miles Risley, City Attorney
v4... � ..s�