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1989-048-RES WHEREAS, CITY COUNCIL IN ORD NO 89-003 MADE AVAILABLE OPTIONAL -- , ~ ~~ -a~~ U7~~~ ~~~ LtW;v I <=t't -0 ~ ~ - L~~ ~~ ~ ~~~ . . I RESOLUTION NO. 89-048 WHEREAS, the City Council of the City of Paris did in Ordinance No. 89-003 make available an optional rate to water customers with meters of 4 inch diameter or greater at a rate designed for that class of customer with a minimum monthly charge if such customer were willing to contract to pay such minimum charge for a minimum of one (1) year; and, WHEREAS, some customers in that class have exercised the option given for the class annual rate; and, WHEREAS, it would be appropriate that such option be reflected in a water service contract in the form of Exhibit A attached hereto and that the City Manager of the City of Paris be authorized to execute such water service contracts in accordance with the ordinance without further authorization from the City Council until such time as such authorization is withdrawn; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, That the water service contract form attached hereto as Exhibit A, for customers eligible for and select the rate offered in Section 34-22 of the Code of Ordinances of the City of Paris, be, and the same is hereby approved, and BE IT FURTHER RESOLVED, That the City Manager of the City of Paris, Michael E. Malone, be, and he is hereby authorized and directed to execute on behalf of the City of Paris, water service contracts in accordance with Section 34-22 of the Code of Ordinances of the City of Paris upon the contract form attached hereto as Exhibit A. Passed and adopted this 8th day of May, 1989. G~ Er~c S. C ATTEST: ~~~.~~~ Mattie Cunningham. Cit er . . 1'- .' ,. STATE OF TEXAS OF LAHAR s s s KNOW ALL MEN BY THESE PRESENTS: COUNTY INDUSTRIAL WATER CONTRACT This Agreement, made and entered into this 1st day of February, 1989, and executed in duplicate 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 with its local office address of Lamar County, Texas, hereinafter referred to as COMPANY. WITNESSETH: I. Service to be Furnished. 1.1 The CITY agrees to furnish and COMPANY agrees to purchase and take a supply of water under the terms and conditions of Section 34-22 (c) of the Code of Ordinances of the Ci ty of Par is (and in accordance wi th the terms hereof.) Said supply of water shall be taken through a ____ inch meter. 1.2. The potable water furnished shall be used for COMPANY'S plant operation. II. Quantities to be Furnished 2.1 The average daily supply of water furnished shall meet all reasonable requirements of COMPANY. The monthly consumption, is expected to be approximately ,000 cubic feet. -1- EXHIBIT A ".. ... .... ." ., COMPANY will advise the CITY of any planned changes that would significantly affect the amount of water used by COMPANY for any extended period of time. III. Regulations 3.1 COMPANY 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. IV. Rights 4.1 The CITY reserves the right to inspect, test, repair and replace the water meter as required. Such replacement or repair shall be charged to and paid one half by CITY and one half by COMPANY. 4.2 In the event COMPANY desires to change its meter size the cost of such meter and .the installation thereof will be paid by COMPANY. V. Water quality 5.1 The CITY shall supply COMPANY with water of quality equal to or exceeding the State of Texas water quality requirements for water supplied for public use. 5.2 The CITY shall supply, upon request, a comprehensive chemical analys is repor t monthly prepared by the CITY I S -2- . . I laboratory of the water supplied to COMPANY. In the event COMPANY desires a more comprehensive chemical analysis of the water supplied, then the cost of such shall be borne by COMPANY. 5..3 The CITY bears no degree of responsibility for the water quality at any point beyond the meter described in Article 1. COMPANY bears the responsibility for maintaining the water quality at any point beyond the meter and within COMPANY'S distribution system. 5.4 COMPANY shall notify and keep the CITY informed of persons responsible for the integrity of COMPANY'S distribution system. 5.5 Each of the parties shall immediately 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. 5.6 The CITY reserves the r igh t to make those facilities which may affect the quality supplied to COMPANY and perform required tests. VI. Equipment and operation 6.1 COMPANY shall provide and maintain all lines and valves on COMPANY'S s ide of the wa ter meter descr i bed in Ar ticle I, which meter marks the limit of the CITY'S responsibility for maintenance. COMPANY shall maintain at all times, in working inspec tions of of the water -3- .. ... I order, a valve immediately upon COMPANY'S side of the meter, which valve can be used for protecting the CITY'S system from contamination in the event of COMPANY'S system becoming contam.inated, or in the event the integrity of COMPANY'S system is violated. COMPANY'S valve may be used by CITY to protect COMPANY'S system or to facilitate repair of CITY'S system. 6.2 The CITY'S representative will regularly inspect the meter measuring the supply of water furnished and will report when the same is known or suspected to be registering incorrectly. The meter shall be repaired by the meter manufacturer's factory service representative. In the event the meter must be replaced, CITY and COMPANY will agree upon a replacement meter and the method of replacement. The cost of maintenance or repair will be distributed in accordance with Paragraph 4.1- 6.3 When it is determined that the 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 COMPANY. 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 can be mutually agreed upon by the City Manager and Plant Manager of the respective parties. -4- .' VII. Rates 7.1 Charges for water furnished to COMPANY beginning on the 1st day of February, 1989, shall be as follows: (1) The minimum monthly charge for the first ,000 cu. ft. shall be $ This base charge is due and owing monthly whether or not COMPANY uses ,000 cu.ft. (2) For each additional 100 cu.ft. there shall be a charge of $.95. (3) The rate established herein is for a minimum of one (1) year and shall be automatically e~tended from year to year unless COMPANY gives written notice during the final sixty (60) days of the annual period, notifying CITY that it no longer wishes to take advantage of the optional charge herein described. 7.2 Every three (3) years, a detailed revenue requirement 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 shall 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 which will be reflected in an -~- . I f" t" ...ndm.n, '0 S.e'ion 34-,,(e) wbieb will .ueo..'ie.'" .m.od ,bi' contLact to coincide with such oLdinance. VIII. Payment of ChaL~es '.1 U,., Cb.,g" und.' A,'ie1. VII of ,bi, Ag,..m.n' ,b.11 b' bi11.d b, 'b' CITY on . mon'b1' b.,i' wi'b ,ueb billing b.iog ,.nd.,.d 00 0' .bou' 'b' ,.m. d., ..eb mon'b. All ,ueb eb.,g.' ,b.11 b. duo .od p.,.b1. on 'b' ,.n,b d., following 'b' billing d.,. .nd ,b.11 b.eom. d.,inqu.n' .f'" lb. .,pi,.'iOO of IW.n,,-on' (") d~' following 'b' billing d.,.. 10 'b' ..~' COMPANY ,b.11 f.11 '0 m.k. .n, p.,m.n' ,.qui,.d b, 'bi' Ag'....n' wi'bin ,w.n,,-on. (") d." following ,b. billing d.,.. ,b. CITY .., .u,p.od WOW ,,,.ico 'UIbod"d by Ihi' Ag"...nI of'" pco.,ding COMPANY fi.. (5) wo,king d." weil"n nodco of i" intent ion to suspend seLvice. ,b.11 ,up.".d' s.eIion' 34-,9 .nd 34-30 of 'b' Cod. of It is agLeed that this section o,din.ne.' of ,b. Ci" of p.,i', '0 ,b' .".n' 'b" ,b" eone.,n w.,., ,.,.ie" ., w.11 ., '0' oeb" Cod' of O,din.ne.' p,n.i'ion, with which it may conflict. IX. Le~al 9.1 It is agLeed that in the event and to the extent that fi", .,p10,ion. .eeid.n', W". .e' 0' God 0' 'b' publiC .n.m, 0' .n, n"uco1 d""'" p"..n" ch. p.do,m.nco of ."b" p'''' b""o, ,ueb p.", ,b.11 b. ,.1i...d of ,b' enn,.qu.ne.' 'b.,.of. -6- I I . . .... ..' ., to supply the water and refuses so to do, or where the CITY has failed to abide by any of its obligations under this Agreement. 9.7 Any written notice required or permitted under the terms of this 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: CITY City Manager City of Paris P. O. Box 9037 Paris, TX 75461-9037 Plant Manager With a copy to: City Clerk City of Paris P. O. Box 9037 Paris, TX 75461-9037 With a copy to: 9.8 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 thereby, and to this end the terms and provisions of said Agreement are declared to be severable. 9.9 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 COMPANY, other than as expressly set forth herein. -8- . . I and there shall be no liability for payment on the part of COMPANY or for failure to deliver potable water on the part of the CITY, notwithstanding any other provision of this Agreement, so long as and to the extent that per formance 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 Agreement shall be in force and effect until terminated as herein provided. 9.3 No officer, official or agent of the CITY has the power to amend, modify or alter this agreement or waive any of its conditions or to bind the CITY by making any promise or representation not contained herein. 9.4 No off icer, of fidal or agent of the COMPANY has the power to amend, modify or alter this agreement or waive any of its conditions or to bind the COMPANY by making any promise or representation not contained herein. 9.5 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. 9.6 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 -7- . . 9.10 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 of its provisions. This Agreement shall be governed by, construed and enforced in accordance 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 COMPANY, and their respective successors, legal representatives and permitted assigns, if any. X. City's Authority to Contract 10.1 (a) The parties recognize and agree that Section 34-22 (c) of the Code of Ordinances of the City of Paris permits industrial consumers or purchasers desiring water delivered through a meter larger than 3 inches, by written contract, to select such rate. (b) This Agreement is such a written contract. -9- . . I '. CITY OF PARIS Eric S. Clifford, Mayor ATTEST: Mattie Cunningham, City Clerk APPROVED AS TO FORM: T. K. Haynes, City Attorney COMPANY By: , President ATTEST: , Secretary STATE OF TEXAS S COUNTY OF LAMAR S BEFORE ME, the undersigned authority, on this day personally appeared Eric S. Clifford, Mayor of the City of Paris, known to me to be the person whose name is subscr ibed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, and in the capacity therein stated. -10- . . I GIVEN UNDER NY HAND AND SEAL OF OFFICE this , 1989. day of Notary Public, State of Texas Printed Name: My Commission Expires: STATE OF COUNTY OF ~ ~ BEFORE ME the undersigned authority, on this day personally appeared , Pres iden t of , known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this , 1989. day of Notary Public, State of Texas Printed Name: Ny Commission Expires: