08-C Tenaska Water Serv
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DRAFT
RESOLUTION NO.
F:ATTORNEY\RESWORK\CURREN1\ Tenaska Water Service Contract Renewal Res
August 1, 2005
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS,
PARIS, TEXAS, APPROVING AND AUTHORIZING THE MAYOR TO
EXECUTE AND THE CITY CLERK TO ATTEST TO A RENEWAL AND
EXTENSION OF A WATER SERVICE CONTRACT BY AND BETWEEN
THE CITY OF PARIS AND TENASKA III TEXAS PARTNERS, A TEXAS
GENERAL PARTNERSHIP; MAKING OTHER FINDINGS AND
PROVISIONS RELATED TO THE SUBJECT; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, on the 13th day of March, 1989, the City of Paris and Tenaska III Texas
Partners, a Texas General Partnership entered into an agreement for the sale of water by the City to
the Partnership; and,
WHEREAS, the aforesaid original contract is due to expire by its own terms unless extended
by agreement of the parties on September 30,2005; and,
WHEREAS, the Partnership has requested a renewal and extension of the current Water
Service Contract through January 30,2006, on the same terms and conditions as the original Water
Service Contract; and,
WHEREAS, the City desires to agree to said renewal and extension as requested by the
Partnership; NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, PARIS,
TEXAS:
Section 1. That the findings set out in the preamble to this resolution are hereby in all things
approved.
Section 2. That a Renewal and Extension of Water Service Contract, as the same is attached
hereto and for all purposes incorporated herein as Exhibit A, shall be and is hereby in all things
approved, and the Mayor is hereby authorized to execute and the City Clerk to attest to said
Agreement.
Section 3. That this resolution shall be effective from and after its date of passage.
PASSED AND APPROVED this 8th day of August, 2005.
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ATTEST:
Janice Ellis, City Clerk
APPROVED AS TO FORM:
Larry W. Schenk, City Attorney
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Curtis Fendley, Mayor
STATE OF TEXAS
COUNTY OF LAMAR
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KNOWN ALL MEN BY THESE PRESENTS:
RENEWAL AND EXTENSION OF WATER SERVICE CONTRACT
This Renewal and Extension of Water Service Contract is made effective the
day of , 2005, by the City of Paris, a municipal corporation in
Lamar County, Texas, hereinafter referred to as CITY and Tenaska III Texas
Partners, a Texas General Partnership, with its principal place of business located
at 301 Lake Crook Road, Lamar County, Texas, hereinafter referred to as
PARTNERSHIP.
WHEREAS, on the 13th day of March, 1989, the City and the Partnership
entered into a Water Service Contract, a copy of which is attached hereto. Both
the City and the Partnership wish to renew and extend the Water Service Contract
to and include January 31, 2006 on the same terms and conditions as the original
Water Service Contract.
NOW, THEREFORE, in consideration of the foregoing recitals and for other
consideration the adequacy and sufficiency of which is hereby acknowledged, the
parties to this Agreement agree as follows:
1. The Water Service Contract dated March 13, 1989, is hereby
renewed and extended to and including January 31, 2006 on the same terms and
conditions outlined in the Water Service Contract attached hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as the date first written above.
CITY OF PARIS
Curtis Fendley, Mayor
eXHIBIT A
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ATTEST:
Janice Ellis, City Clerk
APPROVED AS TO FORM:
Larry W. Schenk, City Attorney
TENASKA III TEXAS PARTNERS
By Tenaska III Partners, Ltd.,
Its Managing Partner
By Tenaska III, Inc.,
Its Managing Partner
By:
Larry V. Pearson
Executive Vice President
ATTEST:
Ron Quinn, Secretary
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STATE OF TEXAS
COUNTY OF LAMAR
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§
§
BEFORE ME, the undersigned authority, on this day personally appeared
Curtis Fendley, Mayor of the City of Paris, 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 stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this
, 2005.
day of
Notary Public, State of Texas
Printed Name:
My Commission Expires:
STATE OF NEBRASKA
§
§
§
COUNTY OF DOUGLAS
BEFORE ME the undersigned authority, on this day personally appeared
Larry V. Pearson, Executive Vice President of Tenaska III, Inc., 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
,2005.
day of
Notary Public, State of Nebraska
Printed Name:
My Commission Expires:
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STATE OF TEY~S
COUNTY OF LAMAR
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§
KNOW ALL MEN
BY THESE
PRESENTS:
WATER SERVICE CONTRACT
This Agreement, made and entered into this 13th day of
March,
1989,
each
and
executed
quintuple
in
originals,
. executed copy cõnstituting an original, by and between the
Ci ty of Paris,
a municipal corporation of Lamar County,
Texas, hereinafter referred to as CITY and Tenaska III Texas
Partners,
a Texas General Partnership, with its principal
place of business
loce.ted at 301 Lake Crook Road,
Lamar
County, Texas, hereinafter referred to as PARTNERSHIP,
\.JITNESSETH:
I.
Service to be furnished.
1.1
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The CITY agrees to furnish and PARTNERSHIP agrees
to purchase and take a supply of water in accordance with
the terms and conditions hereof.
S~id supply of water shall
be taken through a new service by means of a magnetic flow
meter,
8 inch Hersey Model MFM-II Hainline Meter and a 4
inch MCT-II Bypass Meter, which includes a flow versus time
recording device and a pressure versus time recording device
connected to the CITY'S 33-inch potable water transmission
line approximately 2.2 miles south of CITY'S Water Treatment
Plant.
Should PARTNERSHIP request that the meter herein
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described be replaced by a larger meter, such replacement
meter and all costs for the installation of the same shall
be borne by PARTNERSHIP.
If the meter herein described, or
any replacement meter,
shall by CITY be deemed to need
replacement or repair, then the cost of such shall be borne
equally by CITY and PARTNERSHIP.
In either case,
such
meter replacement shall be accomplish~d without amendment to
this agreement by giving notice of the manufacturer's name,
model and meter number of the new meter, which notice shall
be delivered to the appropriate persons as provided for in
Paragraph 9.7
and which shall be affix.ed to this
ante,
agreement as an appendix.
1.2. The potable water furnished shall be used for the
operation of PARTNERSHIP'S cogeneration plant.
II.
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2.1
Quantities to be Furnished
The average daily supply of water furnished shall
meet
all
reasonab Ie
requirements>. of
PARTNERSHIP.
The
monthly consumption,
is expected to be in excess of 1.8
million cubic feet. The water delivered to PARTNERSHIP shall
be at a minimum pressure of se.venty-five (75) pounds per
square
inch;
of
is
delivering
such
the
cost
pressure
included in the rate established in Article VII.
PARTNERSHIP will advise the CITY of any planned
changes that would significantly affect the amount of water
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. used by PARTNERSHIP for any extended period of time.
III.
Regulations
3.1
PARTNERSHIP may not permit any water furnished
hereunder
to be used to
supply
any other party wi thou t
specific approval of the City Council of the CITY.
IV.
Rights
4.1
CITY reserves
the right
inspect,
test,
to
The
repair
and
replace
the water
required.
Such
meter
as
replacement or repair shall be charged to and paid one half
by CITY and one half by PARTNERSHIP, except as provided in
Paragraph 1.1.
v.
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Water quality
5.1
The CITY shall supply PARTNERSHIP with water of
quality
equal
exceeding the State of Texas water
to
or
quality requirements for water supplied for public use.
5.2
The CITY shall supply, upon request, a comprehen-
sive chemical analysis report monthly prepared by the CITY'S
laboratory of the water supplied to PARTNERSHIP.
In the
event
PARTNERSHIP
desires
comprehensive
chemical
a more
analysis of the water supplied, then the cost of such shall
be borne by PARTNERSHIP.
5.3
The CITY bears no degree of responsibility for the
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water quality at any point beyond the meter described in
Article I.
PARTNERSHIP bears the responsibility for main-
taining the water quality at any point beyond the meter and
within PARTNERSHIP'S distribution system.
5.4
PARTNERSHIP
shall
notify
and
keep
the
CITY
informed
of
persons
responsible
for
the
integrity
of
PARTNERSHIP'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
condition which may affect
in either party's system.
case may be, of any emergency or
the quality or quantity of water
5.6
The CITY reserves the right to make inspections of
those facilities which may affect the quality of the water
supplied to PARTNERSHIP and perform required tests.
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VI.
~ment and operation
PARTNERSHIP shall provide- tap and all lines and
6.1
valves beginning with the tap on the CITY'S 33-inch potable
water transmission line.
CITY shall maintain tap at CITY'S
expense and shall maintain the' valve nearest the tap at
PARTNERSHIP I S expense.
PARTNERSHIP shall maintain the 12
inch service line beginning at the valve nearest the tap,
the valves on either side of the meter and all other lines
and valves on PARTNERSHIP'S side of the valve nearest the
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CITY'S 33-inch potable water transmission line.
PARTNERSHIP
shall maintain at all times, in working order all the valves
on its side of the valve nearest the tap, which valves can
be used for protecting the CITY'S system from contamination
in the event of PARTNERSHIP'S system becoming contaminated,
or in the event the integrity of PARTNERSHIP'S system is
violated.
PARTNERSHIP 1 S valves on its side of the valve
nearest the tap may be used by CITY to protect PARTNERSHIP'S
system, to facilitate repair or replacement of meter, 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.
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In the event
the meter must be replaced, CITY and PARTNERSHIP 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
PARTNERSHIP.
The estimate shall be based upon the average
of correct readings for the same or equivalent months in the
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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.
7.1
Charges
VII.
Rates
for water furnished to
PARTNERSHIP
beginning
on
the
date
PARTNERSHIP
designates
to
begin
accepting water
service
through
its
8
inch water meter
through September 30, 1991, shall be as follows:.
(1)
For all water received from the date PARTNERSHIP
designates
to receive water through its 8 inch
meter
through
September
30,
1989,
PARTNERSHIP
shall be charged at a rate of 95C per 100 cubic
;,
feet.
(2)
Beginning October 1, 1989, through September 30,
1991, PARTNERSHIP shall he charged at a rate of
55ç per 100 cubic feet, and in the event that in
any month PARTNERSHIP does not use in excess of
1,800,000 cubic feet of water, PARTNERSHIP shall
be charged a minimum amount for
such month of
$10,000.00, unless the failure to take 1,800,000
cubic feet of water was caused by CITY'S inability
to deliver.
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(3)
The rate for water usage after October 1,
1991,
shall be as
determined by the cost of
service
study as described in Section 7.2.
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.
The
first
test
year
shall be
October 1, 1989, through September 30, 1990, and the first
detailed
cost-of-service
study
shall be performed by
an
independent utility rate consultant engaged by CITY during
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the first two (2) calendar quarters of 1991 based on audited
data for the immediate past six (6) months ended September
30, 1990.
On a three (3) year cycl-e 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 engaged by CITY, except
that the study shall be based on the entire test year rather
than the last six (6) months.
In the interim period between
complete detailed rate studies,
this contract water rate
shall be adjusted by CITY using the same methodology adopted
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at
the
time
of
the
last
complete
detailed rate
study,
utilizing 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 audited statement.
VIII.
Payment of Char~
User Charges under Article VII of this Agreement
8.1
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 PARTNERSHIP
shall
fail to make
any
payment required by this Agreement within twenty-one (21)
€
days following th~ billing date, the CITY may suspend water
service
authorized
by
this
Agreement
after
providing
PARTNERSHIP 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.
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IX.
Legal
9.1
It is agreed that in the event and to the extent
that
fire,
war,
act
explosion,
accident,
of God or
the
public
any natural
disaster
the
prevents
enemy
or
per-
formance
of
either
hereto,
such
shall
be
party
party
relieved of the consequences thereof"and there shall be no
liability for payment on the part of PARTNERSHIP or for
failure to deliver potable 'water on the part of the CITY,
notwi ths tanding any other provis ion 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
force
and
effect
shall
be
This. Agreement
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through September 30, 2005.
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 officer, official or agent of the PARTNERSHIP
has the power to amend, modify or alter this agreement or
waive any of its conditions or to bind the PARTNERSHIP by
making any promise or representation not contained herein.
9.5
This Agreement, except by operation of law, shall
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not be assigned or transferred by either party, without the
prior written consent
of the other party;
however,
that
PARTNERSHIP shall have the right to pledge or mortgage its
rights hereunder as security for its indebtedness without
approval of the CITY.
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 to supply the water and rêfuses 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 desig-
Dated representative of the respective parties which are
designated as follows:
TENASKA III TEXAS PARTNERS
CITY
Plant l1anager
Tenaska III Texas Partners
301 Lake Crook Road
P. O. Box 932
Paris, TX 75461
City Manager
City of Paris
P. O. Box 9037
Paris, TX 75461-9037
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With a copy to:
Managing General Partner
Tenaska III Texas Partners
407 North 117th Street
Omaha, NE 68154
With a copy to:
City Clerk
City of Paris
P. O. Box 9037
Paris, TX 75461-9037
9.8
If any term or provision of this Agreement shall
be declared unconstitutional or void by any court of com-
petent jurisdiction,
the constitutionality and validity of
the
remainder
of
said
shall
be
affected
Agreement
not
thereby, and to this end the terms and provisions of said
Agreement are declared to be severable.
9.9
contained
this
Agreement
shall
be
Nothing
in
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 PARTNERSHIP, other than as expressly set forth herein.
9.10 This Agreement sets forth the entire understanding
{
between the parties, and any other understandings or agree-
ments shall be cancelled and superseded by this Agreement
upon the date of execution hereof".
None: of the terms of
this
Agreement
shall
waived,
discharged,
altered
or
be
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,
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construed and enforced in accordance with the laws of the
State of Texas.
The provisions
of
this Agreement
shall
app ly to, bind and inure to the benefit of the CITY and
PARTNERSHIP,
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
34-2 of the Code of Ordinances of the City of Paris req~ires
that
consumers
or
purchasers
desiring
water
at
minimum
delivery pressure, particular flow ~ate, volume in excess of
1.5 million cubic feet per month,
or which require con-
struction of oversized additions to the City's distribution
system, be delivered water pursuant to a written contract
upon such term~, conditions and at such rate as may be fixed
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by the City Council of the City of Paris.
(b)
This Agreement is such a written contract.
CITY OF PARIS
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ATTEST:
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ATTEST:
STATE OF TEXAS
COUNTY OF LAMÃR
§
§
TENASKA III TEXAS PARTNERS,
By Tenaska III Partners, Ltd.,
Managing General Partner
By Tenaska III, Inc.,
Managing General Partner
BY:~
Howar - - ~ aw s, Pres íàent
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 aéknowledged 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 /'li~day of
¿{O/'t{^)IL ,1989.
.
{J~aL "J
N tary Pu lie, State 0
Printed Name: ~-e k>ð ('t'i h
My Commission~res:
I :r e. xÆis
Httl1 í
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STATE OF
NJ.o'(AsÞ;4
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§
COUNTY OF :::/)0.-1' l.. A.J
BEFORE ME the undersigned authority, on this day
personally appeared Howard L. Hawks, President of Tenaska, '
III, Inc., 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.
of
GIVEN UNDER MY HAND AND SEAL OF OFFICE this
r1~vl-l ,1989.
tSli day
Ñotar{~ .~i:~*xa¡; ~",r~4
Printed Name:~ð~ßA~. ~£:¿~
My Commis s ion Exp i1:e s: )Jut' ¡l/. /ff'J
.J;GENERAJ. IOTARY-stall oIlåasta
DONNA M. BERKA
. My Cðmm. Ex,. May 21. 1991
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