HomeMy WebLinkAboutR89-161SETH WARD WATER SUPPLY A~F/~F~NT
RESOLUTION NO. R89-161
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PLAINVIEW
TEXAS, AUTHORIZING THE MAYOR TO EXECUTE A WATER SUPPLY
AGREEMENT WITH SETH WARD WATER SUPPLY CORPORATION.
WHEREAS, the City of Plainview has agreed to sell water to the
Seth Ward Water Supply Corporation for commercial and residential
uses; and
WHEREAS, the Seth Ward Water Supply Corporation does not have and
cannot provide, within a reasonable time any other source of water
adequate to meet its present or potential needs; and
WHEREAS, the City of Plainview is providing said water on a
emergency basis; and
WHEREAS, a copy of the Water Supply Agreement is hereby attached
and made a permanent part of this Resolution.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Plainview, Texas, that the Mayor is hereby authorized to execute the
Water Supply Agreement with the Seth Ward Water Supply Corporation.
Passed and Approved this llth day of July, 1989.
ATTEST:
Carla Reese, City Secretary
APPROVED AS TO CONTENT:
~ s P. ~ffers/,~~~~
APPROVED AS TO FORM-
EoV. Ridlehuber, Mayor
David Blackburn, City Attorney
Furnishing Water
WATER SUPPLY AGRREMRNT
154
A. Purpose
B. Definitions
C. Delivery Point
D. Service Area
E. Inspection
F. Quantity and Demand
G. Rates
H. Payment
I. Duration, Termination
J- Corporation/Customer Agreements
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II.
General Provisions
B.
C.
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G.
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K.
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M.
N.
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P.
Notices
Modifications
Assignments
Venue
Force Majeure
Headings
Interpretation of Agreement to be Fair
Attorney,s Fees
Penalties
Conflicts of Law
Subject to Certificate of Convenience
Additional Surface Water Supplies
Compliance with City Laws.
Maintain Facilities
Unit of Measurement
Books and Records
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THE STATE OF TEXAS
COUNTY OF HALE
WATER SUPPLY AGREEMENT
'This Agreement is made this the 27th day of June , 1989,
by and between the City of Plainview,--Texas, a Texas municipal
corporation ("Plainview,,), acting by and through its Mayor, who
has been duly authorized to act by Resolution No. R89-161of the
Plainview City Council, and the Seth Ward Water Supply
Corporation, a Water Supply Corporation organized under Article
1434a, V.A.T.S. ("Corporation,,), acting by and through its
President, who has been duly authorized to act by Resolution of
the Board of Directors of said Corporation.
WITNESSET~:
That for and in consideration of the covenants and promises and
agreements set forth herein, it is mutually agreed:
I. FURNISHING WATER
A. PurDose. The purpose of this Agreement is for Plainview
to provide and sell water, as available, to the Corporation for
commercial and residential uses, and those purposes incidental to
such use, pursuant to the provisions of this Agreement. Whereas,
Corporation does not have and cannot provide, within a reasonable
time, any other source of water supply fully adequate to meet its
present or potential needs the water is being provided by
Plainview ox '
an emergency basis to allow Corporation ample time
to obtain water from a more permanent source.
B. Definitions. For the purposes of this Agreement, the
following words and/or terms are defined as such:
1. "water" shall mean water fit for human consumption,
the same as provided by Plainview to customers
within the corporate limits of the City.
2. "Distribution pressure" shall mean the average
static water pressure on the City of Plainview's
water system. Plainview shall determine
distribution pressure by measuring various flow
demands during both normal and peak periods.
3. "residential use" means use of property for
dwelling or living purposes.
4. "commercial use" means use of the property for the
sell of goods and/or services, either retail or
wholesale. Commercial shall not include industrial
use, that being use of a property for manufacture
and/or production of a raw material.
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Ail other words and/or terms shall be defined in the context of
which they are used and in accordance with their normal and
customary usage.
C. Delivery Point. Plainview agrees to sell and to provide
potable water, as available, to Corporation at a point of
metering which shall be known as the "Delivery Point". The
Delivery Point will be located near the intersection of North
Date Street and East 24th Street within the City limits.
Corporation agrees to purchase and to take delivery of said
water at the Delivery Point for Corporation,s own use. Title to
all water supplied under this Agreement shall remain in Plainview
to the Delivery Point, from such Delivery Point title shall pass
to Corporation. ·
Plainview shall be obligated to treat and to filter the water
to be delivered to and received by Corporation so that the water
is the same quality as that supplied to the customers of
Plainview. It is expressly understood and agreed that Plainview
neither makes nor gives any warranty for said water past the
Delivery Point and that such responsibility is Corporation,s from
the Delivery Point. Plainview shall be responsible for providing
such water at distribution pressure at the Delivery Point.
Plainview shall not be responsible for Corporation,s system
pressure or delivery.
Corporation shall protect its storage and distribution system
from cross connections under the specifications required by
health Standards of the State of Texas, and any changes thereto,
so as to protect the integrity of both the Plainview and
Corporation water system.
D. Service Area. Corporation represents to Plainview that the
following area, to be known as the "Service Area", will be served
by Corporation:
"an area bounded by East 34th Street on the North, Wood
Avenue on the East including the homes abutting Wood
Avenue on the East side of the Street, East 24th Street
on South, and Date Street on the West"
Corporation agrees not to service any area, tract, or person
outside of the Service Area without the consent of the Plainview
City Council and by amendment of this Agreement
E. ~nspection. Plainview shall be given an opportunity to
review and comment on any plans, specifications, and operations
of the Corporation pertaining to its distribution system
commencing with the Delivery Point and extending into the Service
Area. Corporation agrees that no change to its distribution
system, which would adversely affect Plainview,s system, will be
made without the written consent of Plainview's agreement. An
example of such a change would be the installation
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of a booster pump or alteration of back flow preventers.
Plainview reserves the full right and authority to enter upon the
property of any and all of the Corporation,s customers located
past the Delivery Point of the Corporation,s water system for the
purpose of inspecting any and all connections made by such
customers to the water line to be installed and inspecting any
and all water pipelines or water wells located on such
customers premises. Corporation shall have the right to
accompany Plainview's representative upon request by Corporation.
Plainview's right to inspect the water wells on a customers
premise shall extend only to those wells where Plainview has
reasonable grounds to suspect possible cross connection or
contamination. Should Plainview ascertain or have reasonable
grounds to believe that there exists any conditions upon said
water line which such condition might result in contamination of
Plainview's water supply or jeopardize the Plainview's
certification with the State Health Department of State Approved
Water, then Plainview shall notify the Corporation, and
Corporation shall immediately correct such situation. In the
event the Corporation fails to correct such condition within ten
(10) days, Plainview reserves the right to cease delivery of
wa~er and suspend this Agreement until such condition is
corrected to the satisfaction of Plainview. If such condition is
not corrected within a reasonable time to the satisfaction of
Plainview, this Agreement may be terminated at Plainview s
option. ,
F. Quantity and Demand. Corporation represents to Plainview
that the quantity of water needed will be not more than 30
million gallons of water per year. Plainview agrees to provide
up to 30 million gallons of water per year. Corporation agrees
that Plainview's capability to provide any additional amounts in
quantity is subject to available supply and deliverability, as
determined by Plainview's agent. Water supplied in excess of 30
million gallons per year may be subject to an additional
surcharge, at Plainview's option. Corporation agrees that
delivery of said water will be through a single bulk meter at
distribution pressure. Corporation agrees that meters larger
than one (1") inch will not be served by the Corporation without
prior written approval from Plainview's agent.
G. Rates.
1. Method of Rate Determ~-ation. Water rates set by
this Agreement will be based upon annual cos~ of
service rate studies performed and prepared by
Plainview or its agents. Cost of such studies,
as they relate to this Agreement and the provision
of water to the Corporation, shall be a system
cost. "System cost" is the operating expense and
capital related costs incurred by Plainview
pursuant to the provision of water to Corporation.
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System costs are to be collected by Plainview
as a component of the annual cost of provide
water service.
The cost-of-service for provision of water to
Corporation may include allocated reasonable and
necessary operation and maintenance expense,
depreciation expense and a fair and reasonable
return on allocated capital facilities. To
determine the allocation and distribution of costs
to Corporation, Plainview may consider, but is
no~ limited to, the following: total volume
demand by Corporation, rate of flow, metering
costs, and customer-related costs such as
accounting, billing and monitoring.
Capital-related costs may consist of depreciation
expense and return on original cost rate base.
Initial Rat~. The Initial Rate which Corporation
agrees to pay Plainview for the purchase of water
from Plainview is $1.29 per/1000 gallons. It is
agreed that within this initial rate a surcharge
of $0.12 per/1000 gallons is being collected to
recover the capital costs of one eight (8") inch
off-site water main. It is agreed that such
capital cost is to be paid by Corporation as the
main is necessary to service the Corporation. It
is also agreed that the intent of the parties is
for Plainview to recover the capital costs,
depreciation and interest on the main within the
term of this Agreement and that such surcharge may
be adjusted annually at Plainview,s option to
accomplish this intent.
Subsequent Rate~. It is agreed that the Initial
Rate is subject to change, at Plainview's option,
dependent upon the annual cost-of-service studies
as set forth in Section 1. G.i. Should
Corporation discontinue using Plainview water
before the capital cost of the off-site main is
recovered, then the unrecovered cost is
immediately due and payable in full.
Plainview agrees to give Corporation not less than
sixty (60) days written notice before any change
in rates.
Records and Access. Records of original cost and
accumulated depreciation of all Plainview,s
capital facilities shall be maintained by
Plainview. These records shall be available for
inspection at the Plainview Water Department
during reasonable business hours upon request by
Corporation.
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5. Monthly ReDorts. Corporation agrees to furnish to
Plainview written monthly reports detailing the
following: the number of active customers, the
amount of water metered, major expenditures for
repair and maintenance of the system, the amount
and number of delinquent accounts, and any other
information reasonably pertaining to the system's
operation as requested by Plainview.
H. Payment. Plainview agrees to render a statement of
charges fo~ the water supplied on a monthly basis. Said
statement shall be sent to address shown on the signature page.
Payment is due upon receipt of statement and Corporation agrees
that no Payments owed to Plainview shall become delinquent.
Corporation agrees to pay promptly. If the Corporation fails to
pay within twenty (20) days after the date of the monthly
statement, it shall be delinquent and a 10% surcharge shall be
due in addition to the monthly charge. Failure to pay the
Agreement.monthly charge or surcharge shall be a violation of this
I. Duration, Termination. This Agreement shall be effective
for a period of five (5) years, beginning June 27 , 1989,
through _June 26 , 1994. Unless otherwise provided, upon
breach of any of the provisions of this Agreement, either party
may terminate this Agreement by giving sixty (60) days written
notice to the other party. Notice shall explain in detail the
provision(s) of the Agreement breached and the circumstances
giving rise to the breach.
The party receiving such notice shall have sixty (60) days,
upon receipt of the notice, to correct breach. If the breach is
not remedied within sixty (60) days of receipt of the notice, the
party, at its option, may suspend or terminate its obligations to
perform under his Agreement.
At its option, Plainview may terminate this Agreement prior to
the scheduled termination date if:
1o Corporation fails to pay Plainview for water
supplied under this Agreement under Plainview's
billing schedule, and any changes thereto; or
2. Corporation fails to comply with any applicable
Federal, State or Municipal law; or
3. Corporation fails to correct a breach within
the time allotted as set forth above.
Should Corporation fail to make timely payment of the monthly
charges three (3) or more times in any twelve (12) month
period, Plainview shall, after giving the requisite notice, have
the option of suspending or terminating this Agreement.
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J- Corporation/Customer Agrcements. Corporation agrees to
establish internal operating policies in order to serve the
Service Area. Such policies shall include, but may not be
limited to,:
· rate schedules
· billing schedules
· authorization to enter customer's property by
Corporation or agent to inspect
termination policys
. compliance with Federal, State and City of Plainview
law, rules and regulations
· cross-connection policys
II. GENERAL PROVISIONs
A. Notices. All Notices required under the terms of this
Agreement shall be in writing and sent by registered or certified
mail to the address shown on the signature page. Should any
change in the address shown on the signature page occur, the
party changing address shall give reasonable notice of such to
the other party.
Plainview shall act by and through its agent (City Manager or
his duly authorized representative) unless otherwise stated in
this Agreement.
Corporation shall act by and through its agent (President or
his duly authorized representative) unless otherwise stated in
this Agreement.
B. Modification. This Agreement may. be changed or modified
only in writing and with the consent of the City Council of
Plainview and the Board of Directors of the Seth Ward Water
Supply Corporation. Such modification may be requested by either
party. No such Change or modification may be made which will
adversely affect the prompt payment when due of all monies
required to be paid by Corporation under the terms of the
Agreement.
C. ~ssignment. Corporation shall not assign nor transfer in
whole or in part the rights and privileges granted in this
Agreement without first obtaining the written consent of
Plainview's agent.
D. Venue. Venue for any legal proceeding
Agreement shall be in Hale County, Texas.
regarding this
E. Force Majeure. That in case by reason of force majeure
either party hereto shall be rendered unable wholly or in part to
carry out its obligations under this Agreement, other than
the obligations of the Corporation to make payment required under
the terms hereof, then if such party shall have given notice and
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full particulars of such force majeure in writing to the other
party within ten (10) days after occurrence of the event or the
cause relied on, the obligation of the party filing such notice,
so far as it is affected by such force majeure, shall be
suspended during the continuance of the inability then claimed,
but for no longer period, and any such party shall endeavor to
remove or overcome such an ability with all reasonable dispatch.
The term "force majeure" includes, but is not limited to, acts of
God, strikes, or other industrial disturbances, acts of war,
orders of any kind of the government of the United States or of
the State of Texas or any civil or military authority, epidemics,
landslides, lightening, earthquake, tornadoes, fires, hurricanes,
storms, floods, explosions, breakage or accidents to
machinery, pipelines or canals, partial or entire failure of
water supply, and inability on the part of Plainview of delivery
of water hereunder, or of Corporation to receive water hereunder,
on account of any other cause not reasonably within the control
of the party claiming such inability. It is understood and
agreed that the settlement of strikes, lockouts, and litigation
shall be entirely within the discretion of the party having the
difficulty, and that the above requirement that any force majeure
shall be remedied with all reasonable dispatch shall not require
the settlement of strikes, lock outs, and litigation as acceding
to the demands of the opposing party or parties when such course
difficulty,is unfavorable in the judgment of the party having the
F. Headings. Paragraph headings contained herein are
for the convenience in reference to this Agreement and are not
intended to define or to limit the scope of any provision of this
Agreement.
G. Interpretation of Ar~ent To Be Fair. Although this
Agreemen~is written by Plainview, should any part of this
Agreement be in dispute, then this Agreement shall be interpreted
fairly to both parties.
H. Attorney's Fees. If either party brings legal action to
challenge or enforce the terms of this Agreement, each party
shall bear its own costs and attorney's fees. "Legal action"
shall include an administrative appeal to the Texas Water
Commission under Chapter's 11, 12 or 13 of the Texas Water Code.
I. Penalties. If Corporation does any of the following, it
shall be liable and owe to Plainview a fee of $1,000.00 per
violation per month that violation continues:
1. Allows water service that will serve a tract,
person, or entity outside the Service Area as
set forth within Section I. C.; or
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2. Fails to comply with Plainview,s Municipal Water
Utility Ordinance's, Resolutions, or Regulations,
(such as water conservation and pricing) and any
changes thereto, or '
3. Sells water in violation of this Agreement.
J- Conflicts of La~. In the event any provision of this
Contractlaw shall shall control, conflict with State or federal law, the applicable
K. Incqr~ation into Certificate of Convenience. Upon
approval and execution of this Agreement, the terms and
conditions of this Agreement shall be part of the "Certificate of
Convenience and Necessity,, issued by the Texas Water Commission.
L. Additional Water SuDDlies. If Corporation develops or
acquires additional water supplies from any source other than
Plainview, resulting in a reduced quantity from Plainview, then
Plainview is released from the obligation to supply the contract
amount mutually established under Part II. C. of this Agreement.
In such event, Plainview may adjust its supply obligation to
levels commensurate with the Corporation,s reduced demand.
Plainview may also review and adjust its rates in accordance with
Section I. F. of this Agreement. If within the terms of this
Agreement, Corporation totally or partially discontinues taking
water from Plainview because such other water supplies have been
developed or acquired, Corporation shall remain liable for the
balance of the capital cost remaining for the off-site eight (8")
water main. Said unrecovered cost becomes immediately due and
payable.
M. ComDliance with City Laws. Corporation hereby agrees
to comply with and to enforce comparable provisions of the
Plainview City Code and related ordinances, resolutions and
regulations as they pertain to this Agreement.
Plainview will use its best efforts to remain in a position to
furnish water sufficient for the. demands of the Corporation as
set forth in this Agreement, but Plainview's obligation under
this Agreement shall be dependent upon the amount of water
available to Ptainview from its own source of supply and demand.
Plainview also reserves the right to temporarily interpret water
service for routine maintenance and repair to its system.
Whenever possible Corporation shall receive not less than 24
hours notice of such occurrences. If unavoidable distribution
problems arise, Plainview reserves the right to further limit
Corporation,s quantity of water to be taken on an hourly, daily,
and/or monthly basis, as Plainview determines necessary to
preserve adequate water for both parties. '
If there is a significant change in Plainview's water
ordinance(s), resolution(s), and/or regulations that would
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adversely affect Corporation, upon passage of the ordinances(s),
written notice of such ordinance shall be mailed to Corporation.
N. Maintain Facilitiem. Corporation agrees to construct,
maintain and operate at its own cost, all equipment and
facilities necessary to receive water from Plainview beginning
immediately past the Delivery Point.
Corporation shall also furnish all necessary equipment and
devices of standard type to be approved by Plainview for properly
measuring the quantity of water delivered under this Agreement.
Plainview shall assume ownership and maintenance for the
measuring device, with the maintenance costs assumed by
Corporation. The metering equipment shall be placed at a point
as designated by Plainview. Plainview shall make access to
such metering equipment available to Corporation at all
reasonable times with reasonable notice given by Corporation.
It shall be the duty of either party to this Agreement to
notify the other party in the event the meter is registering
inaccurately or malfunctioning so the meter can be promptly
repaired. The meter will be operated and maintained so as to
record with commercial accuracy. Plainview will notify
Corporation prior to any meter test. Either party has the right
to request the meter be tested with the other party having the
right to witness such test. If Corporation requires that an
independent test service be used, Corporation shall pay the
cost of such testing service if the me~er is found to be
accurate. If the meter is found inaccurate, Plainview shall pay
the cost of said testing service.
O. Unit of Mea~ur~ment. The unit of measurement for water
delivered hereunder shall be 1,000 gallons of water United
States Standards liquid measure. ·
P. Books and Records. Plainview agrees that Corporation shall
have access to the books and records of Plainview as they pertain
to this Agreement. Corporation agrees that Plainview shall have
access to the books and records of Corporation as they pertain to
this Agreement. Both parties agree that such access shall be
reasonable in time and place.
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CITY OF PLAINVIEW
901 Broadway
Plainview, Texas
79072
E.V. Ridlehuber, Mayor
ATTEST:
Carla Reese, City Secretary
APPROVED AS TO FORM:
.... rn, City. Attorney
SETH WARD WATER SUPPLY CORPORATION
Address: 210 Date Street
P. O. Box 729
.Plainview, TX 79073-0729
David Milstead, President
Seth Ward Water Supply Corporation
fy, Seth War~ Water
Supply Corporation
APPROVED AS TO FORM:
Malcom Tisdel, Attorney for
Seth Ward Water Supply Corporation
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