1993-113-RES WHEREAS, the City Council of the City of Paris did in Resolution No. 91-104, on October 10, 1991,
RESOLUTION NO.93-113
WHEREAS, the City of Paris has been since September 29,
1988, furnishing water to Campbell Soup Company under the
terms of a water Purchase Contract; and,
WHEREAS, the City Council of the City of
heretofore authorize the negotiation of a cost
Water Purchase Contract between the City of
Campbell Soup Company; and,
WHEREAS, it is deemed to be in the best interest of the
citizens of Paris that such agreement in the form of Exhibit
A attached hereto and made a part hereof, be in all things
approved; NOW, THEREFORE,
Paris, did
of service
Paris and
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS,
that the agreement with Campbell Soup Company for water
service and establishing the consideration for the same
prescribed in Exhibit A attached hereto, be, and the same is
hereby approved and accepted.
BE IT FURTHER RESOLVED, that the Mayor of the City of
Paris, George Fisher, be, and he is hereby authorized and
directed on behalf of the City of Paris to execute the Water
Purchase Contract attached hereto as Exhibit A.
Passed and adopted this 15th day of November, 1993.
~~~~
Ge rge-Fis er, Mayor
ATTEST:
attie Cunningham,
APPROVED AS TO
WATER PURCHASE CONTRACT
STATE OF TEXAS
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KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF LAMAR
This Agreement, made and entered into this 1st day of
October, 1993, and executed in quintuple originals, each
executed copy constituting an original, by and between the
City of Paris, a municipal corporation of Lamar County,
Texas, hereinafter referred to as CITY and Campbell Soup
Company, a New Jersey corporation, with a plant located in
Paris, Lamar County, Texas, hereinafter called CAMPBELL,
WITNESSETH:
I.
Service To Be Furnished
1.1 The CITY agrees to furnish and CAMPBELL agrees to
purchase and take a supply of water in acco dance wi th the
terms and conditions hereof. Said supply of water shall be
taken through the existing service by means of a 20 inch
Foxboro magnetic flow tube M/2800 Series, Model No.
2820SEBA-NS STD, Certificate No. 4868758, and an 18 inch
Foxboro magnetic flow tube M/2800 Series, Model No. 2818
SEBA-TSA-G STB, Reference No. 5498649 CS-2/FN-F, connected to
the CITY's 30 inch potable water distribution line
WATER PURCHASE CONTRACT - Page 1
EXHIB1IA
approximately 1 mile North of CITY's Ground Storage and
Booster pumping facility. Should the need arise to replace
either meter herein described, it is agreed that such may be
so replaced without amendment to this Agreement by giving
notice of the name and number of the new meter as herein
provided.
1.2 The potable water furnished shall be used for the
operation of CAMPBELL's manufacturing plant on the North side
of Loop 286 N.W. within the corporate limits of the City of
Paris.
II.
Quantities To Be Furnished
2.1 The average daily supply of water furnished shall
meet all reasonable requirements of CAMPBELL. The monthly
consumption, at this time, is in excess of 1.5 million cubic
feet. The water delivered to CAMPBELL shall be at a minimum
pressure of seventy-five (75) pounds per square inch, the
cost of delivering such pressure is included in the rate
established in Article VII.
2.2 CAMPBELL will advise the CITY of any planned
changes that would significantly affect the amount of water
used by CAMPBELL for any extended per iod of time. For any
changes such as these, the CITY will maintain the right to
WATER PURCHASE CONTRACT - Page 2
limit any increase in water sold to CAMPBELL if it would
adversely impact the integrity of the CITY's water system.
The CITY would then work with CAMPBELL, in good faith, to
meet CAMPBELL's water needs.
III.
Regulations
3.1 CAMPBELL may not permit any water furnished
hereunder to be used to supply any other party without
specific approval of the City Council of the CITY. This
shall not apply to emergency service provided to other CITY
water users.
IV.
Rights
4.1 The CITY reserves the right to inspect, test,
repair and replace the water meter(s) used to measure
CAMPBELL's water consumption as required. Such replacement,
calibration or repair shall be paid one half by CITY and one
half by CAMPBELL.
4.2 The CITY and CAMPBELL each reserves the right,
either in law or in equity, by suits, mandamus or other
proceeding, to enforce or compel performance of any or all
covenants herein contained.
WATER PURCHASE CONTRACT - Page 3
5.1 The
quality equal
water quality
public areas.
5.2 The CITY shall supply monthly, if requested by
CAMPBELL, a comprehensive chemical analysis report of the
water supplied to CAMPBELL. CAMPBELL may request the report
more frequently, but will pay the cost of analysis for any
additional reports generated in excess of one per month.
5.3 The CITY bears no degree of responsibility for the
water quality at any point beyond the meter(s) used to
register CAMPBELL's water consumption. CAMPBELL bears the
responsibility for maintaining the water quality at any point
beyond the meter(s) vault and within CAMPBELL's distribution
V.
Water quality
CITY shall supply CAMPBELL with water of
to or exceeding the State of Texas drinking
requirements for drinking water supplied for
system.
5.4 CAMPBELL shall notify and keep the CITY informed of
persons responsible for the integrity of CAMPBELL's
distribution system.
S.5 Each of the par ties shall immed iately notify the
other party's City Manager or Plant Manager, or such
manager's designee, as the case may be, of any emergency or
condition which may affect the quality or quantity of water
in either party's system.
WATER PURCHASE CONTRACT - Page 4
5.6 The CITY reserves the right to make inspections of
those facilities which may affect the quality of the water
supplied to CAMPBELL and perform required tests.
VI.
Equipment and Operation
6.1 CAMPBELL shall provide and maintain all lines and
valves on CAMPBELL's side of the water meter(s) used to
register CAMPBELL's water consumption, which meter (s) marks
the limit of the CITY's responsibility for maintenance.
CAMPBELL shall maintain at all times, in working order, a
valve immediately upon CAMPBELL's side of the meter(s), which
valve can be used for protecting the CITY's system from
contamination in the event of CAMPBELL's system becoming
contaminated, or in the event the integr i ty of CAMPBELL's
system is violated. CAMPBELL's valve may be used by the CITY
to protect CAMPBELL's system or to facilitate repair of
CITY's system.
6.2 The CITY's representative will inspect monthly the
meter(s) measuring the supply of water furnished to CAMPBELL,
and will report when the same is known or suspected to be
registering incorrectly. The meter(s) shall be repaired by a
service representative certified to work on the meter(s)
being repaired. In the event the meter(s) must be replaced,
CITY and CAMPBELL will agree upon a (the) replacement
meter(s) and the method of replacement.
WATER PURCHASE CONTRACT - Page 5
6.3 The CITY's representative assisted by the service
representative certified to work on the meter(s) being
repaired, will at least quarterly, starting at January 1,
1993, (with January, February and March comprising the first
quarter, and every three months thereafter comprising a
quarter,) the frequency of testing may be reduced by mutual
agreement if meters accuracy dictates, will calibrate the
meters measuring CAMPBELL's consumption, to verify their
accuracy. The CITY may, at their discretion, choose to
calibrate the meter(s) more frequently, if conditions so
warrant. The cost of the calibration will be distributed in
accordance with Section 4.1. A representative of CAMPBELL
will be notified in advance of any testing and/or calibration
and shall have the right to witness any such testing. All
testing will be performed by factory representative or
mutually agreed upon testing service.
6.4 When it is determined that a water meter has
registered incorrectly, an estimate of the amount of water
furnished through the faulty meter shall be prepared by
CITY's Director of Finance for the purpose of billing
CAMPBELL. The estimate shall be based upon the average of
correct readings for the same or equivalent months in the
preceding three (3) years or such other method which would
most accurately reflect the actual consumption for the period
in which the meter failure occurred as mutually agreed upon
WATER PURCHASE CONTRACT - Page 6
by the City Manager and Plant Manager of the respective
parties.
For the meter(s) to be determined as "registering
incorrectly, " the meter(s) must be found to be in error by
plus or minus 2.5'70, or greater. If the degree of error is
plus or minus 2.5%, or greater, then the estimated amount of
water furnished to CAMPBELL will be calculated as stated in
the immediately preceding paragraph.
VII.
Rates
7.1 Charges for water furnished to CAMPBELL beginning
October 1, 1993, shall be in accordance with the base-extra
capaci ty methodology used in the Reed-Stowe & Co. study,
September, 1991, attached as Exh ibit 1.
This methodology
incorporates the following information:
1. A rate period is defined as beginning October
1 and ending at September 30 of the following
year, which corresponds to the CITY's fiscal
year.
2. The Cos t of Serv ice study for CAMPBELL sha 11
be updated every three years, with annual
updates for this CAMPBELL contract, as
described in Section 7.2 of this contract.
3. The total system: including CAMPBELL's
consumption, will be updated annually. For
the rate period October 1, 1991, through
September 30, 1992, CAMPBELL's adjusted
volumes were used (see Reed-Stowe & Co. 's
September, 1991, Water & Wastewater Rate
Study, Exhibit W-4). For all future rate
periods, the volumes used in calculating
WATER PURCHASE CONTRACT - Page 7
CAMPBELL's water rate (as shown in Exhibit 1
of this contract) will utilize the most recent
12-month CAMPBELL water consumption data, as
measured by the CITY, adjusted for known and
measurable changes.
4. The first 1 million cubic feet of monthly
consumption shall be billed at the prevailing
rate established for a 5/8" meter with the
remainder billed at the calculated volume rate
according to the most recent cost of service
study or annual update.
7.2 Every three (3) years, a detailed Cost of Service
Study shall be developed on an actual historical cost test
year basis allowing for reasonable and necessary expenses of
providing such water service and allowing for known and
measurable adjustments.
Such adjustments should allow for
year-end trending and the spreading of non-recurring expenses
over an appropriate benefit period. CITY shall be allowed an
adequate opportunity to recover all of its cost of service.
The next detailed Cost of Service Study shall be performed by
an independent utility rate consultant during the last
calendar quarter of 1993 and the first calendar quarter of
1994, based upon actual operating data for the immediate past
fiscal year ended September 30, 1993.
On a three (3) year
cycle thereafter, a complete detailed rate study will be
performed with the same methodology used in the previous rate
study by an independent utility rate consultant, unless and
until a different methodology is mutually agreed upon by CITY
and CAMPBELL.
In the interim periods between complete
WATER PURCHASE CONTRACT - Page 8
detailed rate studies, CAMPBELL's water rate shall be
adjusted by CITY using the same cost of service methodology
as described in Exhibit 1 of this contract. The adjustments
shall utilize the actual operating data for the twelve month
period ending September 30th of the prior year, adjusted for
known and measurable changes in cost data which may have
occurred since the last corresponding audited statement.
VIII.
Payment of Charges
8.1 Rates under Section 7 of this Agreement, for
CAMPBELL's water consumption, shall be billed by the CITY on
a monthly basis with such billing being rendered on or about
the same day each month. In the event CAMPBELL shall fail to
make any payment required by this Agreement within twenty-one
(21) days following the billing date, the CITY may suspend
water service authorized by the Agreement after providing
CAMPBELL five (5) working days written notice of its
intention to suspend service. It is agreed that this section
shall supersede Sections 34-29 and 34-30 of the Code of
Ordinances of the City of Paris, to the extent that they
concern water service, as well as any other Code of
Ordinances provisions with which it may conflict.
WATER PURCHASE CONTRACT - Page 9
IX.
Force Majeure and Contract Administration
9.1 It is agreed that in the event and to the extent
that fire, explosion, accident, war, act of God or the public
enemy or any natural disaster prevents the performance of
either party hereto, such party shall be relieved of the
consequence thereof, and there shall be no liability for
payment on the part of CAMPBELL or for failure to deliver
potable water on the part of the CITY, notwithstanding any
other provision of the Agreement, so long as and to the
extent that performance is prevented by such cause; provided,
however, that the parties shall use all due diligence in
their efforts to resume performance at the earliest practical
time.
9.2 This Water Purchase Contract will replace in its
entirety the Water Purchase Contract dated September 29,
1988, entered into between the CiTY and CAMPBELL, and this
Agreement shall be in force and effect through September 30,
2002. A renewal water service contract will be negotiated
during the final nine (9) months of the contract to go into
effect on October 1, 2002.
9.3 No officer, official or agent of the CITY or
CAMPBELL, has the power to amend, modify or alter this
agreement or waive any of its conditions or to bind the CITY,
WATER PURCHASE CONTRACT - Page 10
or CAMPBELL, by making any promise or representation not
contained herein.
9.4 This Agreement, except by operation of law, shall
not be assigned or transferred by either party, without the
prior written consent of the other party.
9.5 The CITY will not be responsible in damages for any
interruption or failure to supply water and shall be saved
and held harmless from all damage of any kind, nature and
description which may arise as a result of making this
Agreement and furnishing water hereunder, except where the
CITY has the ability to supply the water and refuses to do so
or where the CITY has failed to abide by any of its
obligations under this agreement.
9.6 Any written notice required or permitted under the
terms of the Agreement shall be given and be deemed to have
been duly served if either (1) delivered in person, or (2)
deposited certified mail, return receipt requested, postage
prepaid in the United States mail, addressed to the
designated representative of the respective parties which are
designated as follows:
CAMPBELL
CITY
Vice President, Southwest Region
Campbell Soup Company
P. O. Box 116
Paris, TX 75460
City Manager
City of Paris
P. O. Box 9037
Paris, TX
75461-9037
WATER PURCHASE CONTRACT - Page 11
With a copy to:
Secretary
Campbell Soup Company
P. O. Box 391
Camden, New Jersey 08101
With a copy to:
City Clerk
City of Paris
P. O. Box 9037
Paris, TX
75461-9037
9.7 If any term or provision of this Agreement shall be
declared unconstitutional or void by any court of competent
jurisdiction, the constitutionality and validity of the
remainder of said Agreement shall not be affected hereby, and
to this end the terms and provisions of said Agreement are
declared to be severable.
9.8 Nothing contained in this Agreement shall be deemed
or construed to create the relationship of principal and
agent, partnership, joint venture, landlord and tenant, or
any relationship or association whatsoever between CITY and
CAMPBELL, other than as expressly set forth herein.
9.9 This Agreement sets forth the entire understanding
between the parties,
and any other understandings or
agreements shall be cancelled and superseded by this
Agreement upon the date of execution hereof.
None of the
terms of this Agreement shall be waived, discharged, altered
or modified in any respect, except by an Agreement in writing
signed by both parties and specifically referring to this
Agreement. The captions in this Agreement are included for
convenience only and shall not be taken into consideration in
any construction or interpretation of this Agreement or any
WATER PURCHASE CONTRACT - Page 12
of its provisions. This agreement shall be governed by,
construed and enforced in acco dance with the laws of the
State of Texas. The provisions of this Agreement shall apply
to, bind and inure to the benefit of the CITY and CAMPBELL,
and their respective successors, legal representatives and
permitted assigns, if any.
X.
Authority to Contract
10.1 The parties recognize and agree that Section 34-2 of the
Code of Ordinances of the City of Paris requires that
consumers or purchasers desiring water at minimum delivery
pressure, particular flow rate, volume in excess of 1.5
million cubic feet per month, or which require construction
of oversized additions to the CITY's system, be delivered
water pursuant to a written contract upon such terms,
conditions and at such rate as may be fixed by the City
Council of the City of Paris. This agreement is such a
written contract.
EXECUTED on the 15th day of November, 1993.
CITY OF PARIS
George Fisher, Mayor
WATER PURCHASE CONTRACT - Page 13
ATTEST:
Mattie Cunningham, City Clerk
APPROVED AS TO FORM:
T. K. Haynes, City Attorney
EXECUTED THIS day of
ATTEST:
, Secretary
WATER PURCHASE CONTRACT - Page 14
, 1993.
CAMPBELL SOUP COMPANY
By:
Dave E. Winkler,
Vice President
Southwest Region
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COST OF SERVICE
$1,284,001 (2)
J\OJUSTliO TEST YEAR CONSUMPTION
:160,678,666 (3)
RATE (per 100 cubic feet)
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NOTES;
,(1) For fISCal year 1991/92 Campbell's rate was calculaled usin\llhe methodology
,
described In exhibit W-1S. for 1992/93 and \ICIng forward the methodology
described in this exhibit will be used.
(2) Per Reed-Stowe & Co. September,l991 Water and Wastewater Rate Study,
Exhibit W -7, p. 2 of 2).
($) Per Reed-Stowe & Co. 1991 Study. Exhibit W-4.
'(4) (2) divided by (3)