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1990-037-RES WHEREAS, the City Council of the City of Paris Resolution No. 88-074 authorize the offering of water to RESOLUTION NO. 90~037 WHEREAS, the City Council of the City of Paris did in Resolution No. 88-074 authorize the offering of water service to Marvin-Jennings-Clardy Water Corporation; and, WHEREAS, such offer in the form of Exhibit A to said Resolution was duly transmitted; and, WHEREAS, Marvin-Jennings-Clardy Water Corporation made an oral counter offer which has been incorporated into Exhibit A attached hereto; and, WHEREAS, it is deemed to be in the best interest of the City of Paris that such counter offer and Exhibit A be in all things approved; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS that extension of water service to Marvin-Jennings-Clardy Wa ter Corpor a t ion upon the terms and cond i t ions and in the form of the Water Service Contract attached hereto as Exhibit A be approved; and, BE IT FURTHER RESOLVED; that the Mayor of the Ci ty of Paris, Eric S. Clifford, be, and he is hereby authorized and directed on behalf of the City of Paris to execute the Water Service Contract attached hereto as Exhibit A. 1990. ATTEST: APPROVED AS TO FORM: ~< T. K. Hayn WATER SERVICE CONTRACT ! . , " .'. ' STATE OF TEXAS ~ ~ ~ KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LAMAR That this Agreement, made and entered into this 11th day of July, 1989, 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 Marvin-Jennings-Clardy Water Corporation, a Texas corporation, whose mailing address is P.O. Box 644, Paris, Texas 75461, hereinafter referred to as MJC. WITNESSETH: 1. Service to be Furnished. 1.1 The CITY agrees to furnish and MJC agrees to purchase and take a supply of potable water for resale in its area as defined by its certificate of convenience and necessity in accordance with the terms and conditions hereof. Said supply of water shall be taken through a service to be constructed near the intersection of FM 905 (41st S.E. Street) and FM 1507 (Jefferson Road) at the Northeast corner of said intersection adjacent to the East right-of-way line of FM 905. The meter vault and loop to be constructed around two 2 inch meters is to be constructed outside of the State of Texas right-of-way for FM 905 upon an easement to be procured at MJC' s expense. The service to be constructed shall be at MJC's expense and shall consist of two 2 -1- .. EXHIBIT A inch meters with 4 valves to be constructed inside the meter vault with MJC's existing valve being outside the ~ter vault to ... ': ., the South and CITY's existing valve being outside'the 'vault to the North. CITY's 8 inch line will be reduced to a 6 inch line just prior to entering the meter vault and will be attached to MJC's existing 6 inch line outside of the meter vault. Inside the vault will be a 6 inch line loop. The CITY's main reduced to 6 inches will be attached to a "y" immediately inside the meter box. Each leg of the "y" will contain a 6 inch isolation valve, a back flow preventer, a 2 inch meter, and a 6 inch isolation valve, and each leg will then be attached to a "y" which will be attached to the 6 inch service line and exit the meter valve. Immediately outside the meter vault will be an air release valve, all of which appear on Exhibit A attached hereto, all of which will be at an estimated cost of $10,000.00. The construction of the service herein described shall be supervised by and in accordance wi th CITY spec if ica t ions, and shall be owned, controlled and maintained by CITY from the downstream side of the meter vault upstream to CITY's existing system. In the event of replacement of the meter, it will 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 supplying residential and commercial customers of MJC. MJC shall not have the right to furnish industrial customers with water. -2- II. Quantities to be Furnished .r':.r' . . . 2.1. The average daily supply of water furnished shall meet all reasonable requirements of MJC. The daily consumption, at this time, is in excess of 50,000 gallons with a monthly consumpt ion in excess of 1. 5 mi 11 ion gallons, wi th the r igh t, under this contract, to take up to 2.5 million gallons monthly. The water delivered to MJC shall be at a minimum pressure of fifty (50) pounds per square inch. MJC will advise the CITY of any planned changes that would significantly affect the .amount of water used by MJC for any extended period of time. MJC will advise the CITY of any plant failure that will, on an emergency basis, require a significant increase in the flow of water to MJC. III. Regulations 3.1. MJC may not permit any water furnished hereunder to be used to supply any industrial customer without specific approval of the City Council of the CITY. MJC may provide emergency service to any other water sys tem; however, CITY should immediately be notified of such emergency service being provided. IV. Rights 4.1. CITY reserves the right to inspect, test, repair and replace the water meter as required. Such replacement or repair shall be paid one-half by CITY. 4.2 In the event MJC desires to change it's meter size, the cost of such meter and installation thereof will be paid by MJC. -3- 4.3. The CITY and MJC each reserve the right, either in law or in equity, by suits, mandamus or other proceedi~~~!.~Q enforce or compel performance of any or all covenants herein contained. 4.4. The CITY has the right to connect all Jefferson Heights customers to CITY's water system. 4.5. In the event of annexation by CITY of an area within its extr aterr i tor ial j ur i sd ic t ion be ing served by MJC, CITY may continue to permit residences in such area to be served by MJC or may, at CITY's expense, extend the CITY's system into such area and require residents who are served by CITY wastewater system to connect to CITY's water system. V. Water Quality 5.1. The CITY shall supply MJC 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 analysis report of the water supplied to MJC. 5.3. The CITY bears no degree of responsibility for the water quality at any point beyond the meter described in Article I. MJC bears the responsibility for maintaining the water quality at any point beyond the meter vault and within MJC' s distribution system. 5.4. MJC shall notify and keep the CITY informed of persons responsible for the integrity of MJC's distribution system. 5.5. Each of the parties shall immediately notify the other party's City Manager or MJC's President, or such President's -4- designee, as the case may be, of any emergency or condition which may affect the quality or quantity of water in .~r.t~e.~ party's system. S .6. The CITY reserves the r igh t to make inspec t ions of those facilities which may affect the quality of the water supplied to MJC and perform required tests. VI. Equipment and Operation 6.1. MJC shall provide and maintain all lines and valves on MJC's side of the water meter vault commencing at the discharge end of "y 2" described in Article I, which meter vault marks the limit of CITY's responsibility for maintenance. MJC shall maintain at all times, its valve located approximately 100 feet downstream from the meter vault, in working order, which valve can be used for protecting the CITY's system from contamination in the event of MJC' s sys tem becoming con tamina ted, or in the event the integrity of MJC's system is violated. MJC's valve may be used by CITY to protect MJC's system or to facilitate repair of CITY's system. 6.2. The CITY I S represen ta t i ve wi 11 regular ly 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 CITY. In the event the meter must be replaced, CITY and MJC 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. -5- 6.3. When it has been determined tha t the wa ter meter has , . " t. registered incorrectly, an estimate of the amo~ri~"of water furnished through the faulty meters shall be prepared by CITY's Director of Finance for the purpose of billing MJC. The estimate shall be based upon the average of correct readings for the same or equivalent months in the preceding year 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 MJC's President or designated representative of the respective parties. VII. Rates 7.1. Charges for water furnished to MJC throughout the term of this contract shall be at the rate of $1.65 per 1000 gallons. The rate established herein shall be increased or decreased annually, in October of each year, in the percentage amount of increase or decrease in the Consumer Price Index for All Urban Consumers, (CPI-U United States City Average (1982-84=100.0) above or below the rate for January, 1990, which shall be deemed to equal 127.4 as appropriate. 7.2 It is agreed that the rate established in paragraph 7.1 above is not based upon cost of service but is agreed to be fair and equitable to both parties. In the event MJC should ever desire a cost of service based rate including a return on investment to CITY, CITY would procure the same at MJC's cost and would have the right to discontinue service in the event the cost -6- of service rate was less than the rate established herein as adjusted by cost of living increases or decreases...'.!'; tt . . . 7.3 There shall be no charge for water until MJC declares that it is ready to receive water by requesting that CITY begin to provide water service. VIII. Payment of Charges 8.1. User Charges under Article VIII of this Agreement shall be billed by the CITY on a monthly basis with such billing being rendered on or about the same day each month. All such charges shall be due and payable on the tenth day following the billing date and shall become delinquent after the expiration of twenty-one (21) days following the billing date. In the event MJC 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 this Agreement after providing MJC five (5) working days written notice of its intention to suspend service. I t is agreed tha t this section shall supersede Sections 31-25 and 31-26 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 Ordinance provision with which it may conflict. IX. Legal 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 -7- hereto, such party shall be relieved of the consequences thereof, and there shall be no liability for payment on the.p~rt. ~f MJC or ".' .' . for fa i 1 u r e to del i v e r pot a b 1 e wa t e r 0 nth e par t 0 f the CITY, notwithstanding any other provision of this 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 Agreement shall be in force and effect through September 30, 2000. 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. 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 so to do. 9.6. Any written notice required or permitted under the terms of this Agreement shall be given and be deemed to have been du ly served if either (1) de 1 i vered in per son, or (2) depos i ted certified mail, return receipt requested, postage prepaid in the -8- United States mail, addressed to the designated representative of the respec t i ve par ties wh ich are des igna ted as fol~~~~.:... MJC CITY President Marvin-Jennings-Clardy Water Corporation P. O. Box 644 Paris, TX 75461 City Manager City of Paris P. O. Box 9037 Paris, TX 75461-9037 With a copy to: Secretary Marvin-Jennings-Clardy Water Corporation P. O. Box 644 Paris, TX 75461 With a copy to: City Clerk City of Paris P. O. Box 9037 Paris, TX 75461-9037 9.7. If any term or provis ion 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 provis ions 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 MJC, other than as expressly set forth herein. 9.9. This Agreement sets forth the entire understanding be tween the par ties, and any other under stand ings 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 -9- specifically referring to this Agreement. The captions in this Agreement are included for convenience only and.,.~is.~.a~l 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 MJC, 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 31-2 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 distribution system, be delivered water pursuant to a written contract upon such terms, conditions and at such rate as may be fixed by the City Counc i 1 of the Ci ty of Paris. (b) This Agreement is such a written agreement. CITY OF PARIS Eric S. Clirford, Mayor ATTEST: Mattie Cunningham, City Clerk -10- APPROVED AS TO FORM: ..f' .,.., .' .' T. K. Haynes, City Attorney MARVIN-JENNINGS-CLARDY WATER CORPORATION By: J. C. Jackson, President ATTEST: Secretary STATE OF TEXAS ~ COUNTY OF LAMAR ~ 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 subscribed to the foregoing instrument, and the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this _ day of , 1990. Notary Puolic, State of Texas Printed Name: My commission expires: -11- ; f. . . STATE OF TEXAS ~ COUNTY OF LAMAR ~ BEFORE ME, the undersigned authority, on this day personally appeared J. C. Jackson, President of Marvin-Jennings-Clardy Water Corporation, known to me to be the person whose name is subscr ibed to the foregoing ins trument, 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 , 1990. day of Notary Public, State of Texas Printed Name: My commission expires: -12- . . . . . . '''t' . 'r; ..... I I ~ID~ --f ~)- :tor VI 0 ^^ ~ ", 1) ~"T1z rVl r 00 ", .. ~~ < ; , .. ~"O .. 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