HomeMy WebLinkAboutC2013-087 - 3/26/2013 - ApprovedTREATED WATER SUPPLY CONTRACT BETWEEN
THE CITY OF CORPUS CHRISTI
F-11:1 V]
VIOLET WATER SUPPLY CORPORATION
THE STATE OF TEXAS §
COUNTY OF NUECES §
Th's Contract for the supply of treated water, made as of this day of
2013, by and between the City of Corpus Christi (City "), a Texas
home -rule municipal corporation, whose address is P.O. Box 9277, Corpus Christi,
Texas 78469 -9277, and acting through its duly authorized City Manager, or the City
Manager's designee ( "City Manager), which owns a regional water supply system
that provides untreated raw water and treated water to municipal and industrial
customers, and Violet Water Supply Corporation ( "Violet"), a water supply
corporation, organized under Article 1434x, V.A.T.S., for the purpose of constructing,
including making extensions from time to time, and operating a water supply
distribution system serving water users within the area described in plans on file at its
office and Corpus Christi's office, which area is outside of, but adjacent to, Corpus
Christi, acting by and through its duly authorized representative ( "Violet's
Representative ").
This Contract supersedes and replaces the treated water contract dated March 12,
1977, between the parties to this Contract; and is the only agreement of the parties
relating to the sale, delivery, and use of treated water. Any prior understandings or
written or oral agreements between the parties relating to the sale and use of treated
water are superseded by this contract.
Violet wants to continue to divert and use treated water for resale for municipal
purposes, and the City desires to continue allowing or otherwise facilitating the delivery
and use of treated water to Violet.
In consideration of the above recitals and the mutual promises, covenants, and
agreements in the Contract, and for other good and valuable consideration, the receipt
and sufficiency of which is acknowledged, the parties agree as follows:
1. Term. This Contract becomes effective on the date of final approval of this
Contract, and continues in force and effect for a period of forty (40) years_
2. Use and Quantity of Water.
a. The City agrees to sell potable treated water, meeting Federal and State
standards, to Violet and allow Violet to resell treated water for municipal and industrial
purposes in such quantity as may be required by Violet, but not exceeding a total of
10,000,000 gallons per month.
.2013 -087
3/26/13
M2013 -050
Violet Water Supply Corporation
INDEXED �,
b. However, if an emergency situation arises, the City may deliver additional
treated water. The City's Director of Water Operations will determine how long the extra
deliveries will last and the rate at which deliveries will be increased.
C. Except as provided in subparagraph 2.b., if Violets projected need for
treated water exceeds 10,000,000 gallons per month, then in that event, Violet will notify
the Director of Water Operations of Violet's needs at least 90 days prior to the date on
which the increased deliveries are needed. The Director of Water Operations, in his or
her sole discretion, will determine whether there is sufficient capacity within the system
to allow an increased rate of delivery after considering the City's planned needs and the
needs of its other water customers. The Director of Water Operations, in his or her sole
discretion, will determine whether water can be delivered at an increased rate and the
rate to which deliveries will be increased, and notify Violet's Representative of the
decision.
d Violet may request an increase in the amount of treated water delivered in
a year based on the extent of the uncommitted water available. The City will consider
the City's planned needs, the needs of its other water customers, and the needs of other
communities in the region before committing to any increase in Violet's annual
deliveries. However, the City is under no obligation to authorize an increase in the
annual deliveries. In the event an increase in the annual deliveries is authorized, this
contract must be amended in writing to show the amount of increased deliveries.
P- Actual current and projected future deliveries are shown on Exhibit "A-1
attached to and incorporated into this Contract.
E Actual deliveries within the last 3 years are shown on Exhibit "A -2"
3. Point of Delivery. Title to and possession of the treated water passes to Violet
at the point of delivery. The City will deliver the treated water to the existing delivery
points located on State Farm to Market 24 (Violet Road), at or near the city limits of
Corpus Christi, and on State Farm to Market 1694 (Callicoate Road) near the
intersection with Meadow Lane. The treated water will be delivered at the minimum
pressure operating pressure required by the Texas Commission on Environmental
Quality ( "TCEQ" ).
4. Measurement of Treated Water.
a. The treated water delivered under this Contract must be measured in U.S.
standard gallons by a suitable water meter or meters to be installed and maintained by
the City at the point of delivery, which shall be accurate within 2 %, either plus or minus.
The City's Director of Water Operations may specify the type of meter or meters to be
used and the installation design of the meter or meters. Checks as to the accuracy of
the meter or meters will be made annually by the Director of Water Operations, at
Violet's sole expense. The City's Director of Water Operations will notify Violet's
Representative in writing 10 days in advance of all annual checks and tests in order that
Violet may have a representative present as a witness. If Violet's Representative fails
for any reason to be present for a check, the City may nevertheless proceed with the
test and the City's findings shall be conclusive. The City shall notify Violet of the results,
ON
if the Violet Representative is not present.
(1) If either the City's Director of Water Operations or Violet's
Representative, at any time, notifies the other that it desires a
special test of any meter, the parties will cooperate in arranging for
a special test to be made by the City.
(2) The expense of the special test of the meter or meters will be paid
by the party requesting the test.
(3) If, on any test, the meter tested is found to be inaccurate by an
amount exceeding 2 %, either plus or minus, then any previous
readings of the meter will be credited for any period of inaccurate
measurement, but no credit will extend back over a period
beginning more than 30 days prior to the time when the inaccuracy
was first made known by either party to the other.
(4) If, for any reason, the meter or meters are out of service so that the
volume of treated water delivered cannot be ascertained or
computed, the treated water delivered during the period the meter
or meters are out of service will be estimated by the City's Director
of Water Operations, in consultation, with Violet's Representative,
upon the basis of the best data available.
b. The City will read the meter or meters on or about the last day of each
month and will determine from these readings the amount of treated water delivered to
Violet. All meter readings will be made available to Violet's Representative during the
City's reasonable office hours.
5. Price of Treated Water.
a. The price to be charged for treated water sold by the City to Violet is the
published Resale for Treated Water Rates established by City ordinance, including the
monthly minimum charge for a treated water customer, plus the raw water cost
adjustment ( "RWCA ") which are in effect at the time of delivery. The RWCA will be
calculated on a monthly basis, and determined by dividing the most recently available
costs of raw water by the system -wide average volume of untreated raw water sales for
the prior twelve month period. The RWCA will be adjusted on a monthly basis to
account for differences in volumes used in the prior calculation and the actual volume of
water sales for that month. A copy of the current water rate and raw water cost
adjustment ordinance is attached as Exhibit "B ". Changes in the raw water cost
adjustment are automatic, and Violet will be billed the adjusted rate. The ordinance is
subject to change at the sole discretion of the Corpus Christi City Council. City's
Director of Water Operations will provide Violet's Representative with a copy of any
modifications to the ordinance, which will be attached to this Contract as the new Exhibit
b, The actual methods for computing the untreated raw water cost
adjustment is established in a written policy filed with the City Secretary. A copy of the
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current policy is attached as Exhibit "C ". The City's Director of Water Operations will
provide Violet's Representative with a copy of any modifications to the policy, which will
then be attached to this Contract as the new Exhibit "D ".
C. When the City intends to change the rate, the City shall give Violet notice
of the proposed change, and any information necessary to evaluate the proposed rate
ninety (90) days before the change is to take effect. Violet shall give good faith
consideration to the proposed new rate and shall attempt to provide the City with its
comments on the proposed change not later than forty -five (45) days before the
proposed change is to take effect. The City shall give good faith consideration to Violet's
comments, but may institute the new rate on the date the change is scheduled to take
effect.
d. The parties agree and acknowledge that the City is evaluating, going
forward, implementing consistent wholesale contract provisions such as supply limits,
limitations on maximum supply, peaking limitations, resale provisions, development of
other supply provisions, etc. so that wholesale contract provisions conform to city policy
and are consistent among all of the wholesale parties. To the extent that the City
defines and interprets policy, and adopts, in order to implement that policy, provisions
relating to a maximum supply limit, a supply limit rate, a capacity reserve, a minimum
charge related to the extent of the reservation, a peaking limitation, limitations on the
ability to resell water, etc., the parties agree to consider implementing those contract
provisions under Section 24 of this contract, to the extent such provisions are
reasonable and fair to both parties.
e. In no event may any provision in this Contract be interpreted to exempt
Violet from any ordinance passed by the City Council.
6. Fixed Minimum Obligation.
a. Violet is not obligated to purchase any minimum amount of treated water
in any billing month during the period of this Contract or any renewals or extensions
thereof, but Violet must pay the City the minimum monthly charge for commercial
metered treated water customers under the City's water rate ordinance, regardless of
whether any treated water is used.
b. If the payment due the City from Violet for treated water withdrawn during
the billing period under consideration exceeds the minimum, then payment must be
made for the amount of water billed by the City to Violet.
C. If the payment which would be due on the basis of treated water delivery
is less than the minimum, then said minimum is nevertheless the amount due. This
minimum amount is intended to cover the cost of meter readings, testing, billing, and
other costs, which will continue whether any treated water is withdrawn by Violet.
7. Billing.
a. All treated water taken in any one calendar month will be billed between
the first and tenth of the next succeeding calendar month, and Violet will pay the bill
within 10 days of the receipt of the bill. Any clerical error in the bill or question regarding
L,
the bill is not sufficient grounds to delay payment by Violet to the City. Any adjustments
in the amount paid as a result of the agreement will be added to or deducted from the
following month's bill.
Any failure by Violet to pay the monthly billing within 30 days after the billing date is a
"default" under Section 19 of this Contract. In the event it becomes necessary to collect
the charges, through any Court procedure, the City is entitled to also recover
reasonable attorney's fees. If Violet fails to pay its water bills, the City, at its discretion,
may terminate this Contract in its entirety, require the payment in advance of each
monthly water bill based on Violet's previous bill plus a deposit, as a condition to
furnishing treated water to Violet, or avail itself of any other legal remedy. Violet, its
officers and directors, and the City, its officers, members and administrative staff
each recognizes that there are many advantages to using mediation to settle any
and all legal disputes and claims, including, but not limited to, disputes over the
billing for water provided by the City to Violet pursuant to this agreement. For many
reasons, lawsuits and court actions are disadvantageous to both Violet and the City
and that the many benefits and advantages to all parties include: speed of process,
cost effectiveness, use of trained and professional problem solvers, privacy and
confidentiality, and complete due process and fairness to all parties. In consideration
of these many benefits and other consideration, Violet and City have agreed that
disputes between the parties arising out of this agreement shall be governed by
alternate dispute resolution of all claims and disputes between them. Any claim or
dispute between Violet and City arising out of this agreement shall be resolved, as
follows: (1) by attempting settlement by mediation, under the Mediation Rules set
forth in Chapter 154 of the Texas Civil Practice and Remedies Code, with the
mediator being selected by agreement of the parties or by request for appointment
of a mediator made to the senior United States District Judge for the Southern
District of Texas, Corpus Christi Division, if the parties cannot agree on a mediator.
8. Restrictions on Resale.
a. Violet is strictly prohibited from selling the treated water obtained under
this contract to any customer for resale of the water to others. Violet is prohibited from
selling water under any other name other than the Violet Water Supply Corporation.
Violet agrees to provide in every customer contract the following language, to be made
conspicuous with uppercase type font or bolded with text at least one font -size larger
than the surrounding text: YOU ARE STRICTLY PROHIBITED FROM SELLING ANY
WATER PROVIDED TO YOU UNDER THIS AGREEMENT BY THE VIOLET WATER
SUPPLY CORPORATION
9. Alternative Supplies.
a. Nothing in this Contract prohibits Violet from obtaining treated water from
sources other than the City_
h Before Violet commingles waters from different sources within its
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distribution system, Violet shall notify City's Director of Water Operations. The City's
Director of Water Operations may require Violet to install an appropriate backflow
prevention device at all points where Violet's water distribution system connects with
the City's water distribution system.
10. Water Rights.
a It is mutually agreed and understood that Lake Corpus Christi and Choke
Canyon Reservoir waters, any currently developed ground water, water acquired by the
City from the Lavaca - Navidad River Authority, water rights obtained from the Garwood
Irrigation Company, and other future waters, whether surface waters or ground waters,
obtained by the City, which are not under Contract to others, and which are owned by
the City, may be used to supply water during the time this Contract remains in force.
b: This Contract is subject to the City's responsibility and obligation to
provide water to municipal and industrial consumers within the Corpus Christi city limits
and other municipal and industrial consumers outside its city limits.
C. Subject to Section 13, Water Conservation and Drought Contingency
Measures, and subject to the City's obligations under any Agreed Orders, or any
Environmental Protection Agency ( "EPA ") or Texas Commission on Environmental
Quality ( "TCEQ ") requirements or standards, to be interpreted and determined solely by
the City, the City binds and obligates itself, however, to take the necessary actions
within its power and to make the necessary applications to obtain whatever additional
water rights as may be necessary to adequately meet the needs of its existing
contracts, this Contract, and any future contractual obligations of the City, and, if
requested by the City, Violet shall support the City's action, in the manner requested by
the .City.
d. It is also mutually agreed and understood that this Contract is subject to
the jurisdiction of the Texas Commission on Environmental Quality ( "TCEQ "), any
successor agency, or any other regulatory authority that may have jurisdiction over the
matters.
e. Violet agrees to support any future City requests to the TCEQ or other
regulatory authorities for permission to acquire or amend its water rights or provide
water to the Violet and other customers, unless such action would adversely affect
Violet.
f. City agrees to support any Violet requests to TCEQ or other regulatory
authorities for permission to distribute treated water purchased by Violet from the City
under this Contract.
11. Violet's Storage and pumping Requirements.
a Any storage facilities must be built and maintained to standards adopted
by Corpus Christi, the TCEQ, or any other regulatory authority. If there is a conflict
between standards, the City's standards shall apply.
b. Pump intakes connected directly to the Violet's water lines or Corpus
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Christi's supply main are prohibited.
Q The transmission and distribution piping construction and operation
downstream from the City's meters serving Violet shall meet the requirements of the
TCEQ; Rural Development, United States Department of Agriculture; and any other
governmental agency having jurisdiction. If there is a conflict between standards, the
most stringent standards shall apply. Violet shall submit copies of plans for all
extensions of its transmission and distribution system to the City for review prior to
awarding any contracts.
d. Violet shall institute a program to control unaccounted for water losses
consistent with the requirements of the City, as directed by the Director of Water
Operations. The Director of Water Operations may request, at any time, that Violet
submit its Water Loss Control Program for approval. Within 30 -days of such request,
Violet shall submit to the Director of Water Operations a plan of action for instituting a
Control Program, approval of which the City shall not unreasonably withhold. The
failure of Violet to comply with this Section of the Contract is a "default' under Section
16 of this Contract. The parties agree to confer and coordinate to assist Violet, in
Violet's efforts insure that its Water Loss Program is consistent with the City's
requirements.
e. Violet agrees that Corpus Christi has the right to inspect its system at any
and all times during normal business hours. If Violet's system or any portion thereof
does not meet TCEQ's standards for an interim rural water supply, Violet shall bring its
system, or any portion of its system, up to TCEQ's standards.
12. Corpus Christi's Right to Sell Treated Water. The City, with the express
written consent of the Board of Directors of Violet, retains the right to sell treated water
at points and to customers located within and outside Violet's service area In Violet's
Certificate of Convenience and Necessity, consistent with applicable law. The City shall
not execute any plans for new service extensions within Violet's service area unless and
until it obtains the Board of Directors of. Violet's consent to provide said service.
13. Water Conservation and Drought Contingency Measures.
a. Violet acknowledges the terms of the TOED Agreed Order of April 28,
1995, which amended the operational procedures relating to Special Condition 5.13,
Certificate of Adjudication No. 21 -3214, and the City's responsibilities under both the
Agreed Order and the Certificate of Adjudication. Violet recognizes that the Agreed
Order and Certificate of Adjudication may be amended in the future. The agreed order
requires the City to provide in any future contracts or any amendments, modifications,
or changes to existing contracts the condition that all wholesale customers and any
subsequent wholesale customers must develop and have in effect a water conservation
and drought management plan consistent with the City plan as required by the TCEQ
rule. Therefore, Violet agrees that during the term of this contract, it shall have in effect
a water conservation and drought management plan consistent with the City's plan,
including any changes adopted by the City. Violet also agrees to bind future customers
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and its existing customers upon contract renewals to develop and have in effect a water
conservation and drought management plan consistent with the City plan.
b. If the City implements any measures under its Water Conservation and
Drought Contingency Plan, adopted under Section 55 -156 of the Code of Ordinances
for the City of Corpus Christi, Violet shall within 30 days of notice of any changes to the
plan or the implementation of any restrictions, surcharges, or rationing by the City,
impose similar restrictions, surcharges, or rationing measures on its customers. Any
contract for the resale of water furnished by Violet shall contain a similar condition. If for
whatever reason Violet, or its customer, is unable or unwilling to impose the required
restrictions, surcharges, or rationing measures within the required time period, Violet, or
its customer, shall reduce its consumption of water from the system as follows:
(1) During Condition I -- Water Shortage Possibility, deliveries from the
system shall be reduced by 10% from the average deliveries for the same
month of the year over the previous three years.
(2) During Condition II -- Water Shortage Watch, deliveries from the
system shall be reduced by 20% from the average deliveries for the same
month of the year over the previous three years.
(3) During Condition III — Water Shortage Warning, deliveries from
the
system shall be reduced by 30% from the average deliveries for the same
month of the year over the previous three years.
(4) During Condition IV -- Water Shortage Emergency, deliveries from
the system shall be reduced by 60% from the average deliveries for the
same month of the year over the previous three years.
C. If for whatever reason Violet, or its customer, is unable or unwilling to
impose the required restrictions, surcharges, or rationing measures within the required
time period, but relies upon other sources of water for all or a portion of its water
requirements, Violet, or its customer, agrees not to request an increase in the amount of
water being diverted from the system should Violet's, or its customers, other source(s)
of water fall to continue to yield the amounts of water anticipated.
d. To the extent that the TCEQ or other regulatory agency requires rationing
of water in a manner stricter than that imposed by the City, Violet will comply with the
stricter method of rationing water.
e. Violet shall furnish a copy of any ordinances, orders, or rules adopted by
it or its customers that is adopted to implement the required restrictions, surcharges, or
rationing measures within the applicable jurisdiction. If for whatever reason Violet, or its
customer, is unable or unwilling to impose the required restrictions, surcharges, or
rationing measures, the City may audit the records of Violet to ensure that Violet or its
customer has reduced its deliveries by the amount required by this Section.
f. The failure of Violet to comply with this Section of the Contract is a
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"default"' under Section 16 of this Contract.
g. Upon Violet's failure to cure a default of this Section 13, provided the City
has provided Violet with written notice of the default and an opportunity to cure
within a period of not less 30 days, the City is authorized to reduce its deliveries
of water to Violet if Violet or its customer has not, in the sole opinion of the City,
adequately imposed restrictions under this Section of the Contract.
14. Force Majeure. If the City or Violet is prevented, wholly or in part, from
fulfilling its obligations under this Contract by reason of circumstances both beyond its
reasonable control and unforeseeable, including any act of God, unavoidable accident,
acts of enemies„ fires, floods, rationing, governmental restraint or regulation, other
causes of force majeure„ then the obligations of City or Violet, as provided in this
Contract, are temporarily suspended during continuation of the force majeure. This
section does not extend to any default or failure to perform due to labor shortages or
strikes or economic hardship. If a party's delay in performance is excused under this
section, the delay will only be for the period the party was actually delayed in
performance by the event outside of its reasonable control. No damage is recoverable
by Violet from City by reason of the temporary suspension of delivery of water due to
any of the causes above mentioned. If the City's obligation is affected by any of the
causes, the City will promptly notify Violet's Representative in writing, giving full
particulars of the force majeure as soon as possible after the occurrence of the cause or
causes relied upon.
15. Resolution of Rate Disputes. In the event of any dispute as to the rates being
charged, the City and Violet agree that the dispute will be appealed to the TCEQ, under
applicable TCEQ rules, to the extent that the TCEQ has jurisdiction over the issue. The
City and Violet agree to cooperate to satisfy any jurisdictional requirements that the
TCEQ may require for it to determine the rate. In the event that the TCEQ or another
dispute resolution agency of the State of Texas falls or refuses to hear an appeal of the
wholesale water rate charged by the City, then, in that event, Violet can contest the
proposed wholesale water rate in the appropriate court in Nueces County, Texas.
16. Violets Right to Terminate. If Violet's need for water from the City should cease
for a period of at least 30 days, Violet may, by giving 30 days written notice to City, by
certified mail, terminate this Contract in Its entirety. If Violet actually gives the City
written notice, then, in that event this Contract expires 30 days from the date the notice
is mailed to City and this Contract and all of its provisions shall become null and void.
17. Remedies Upon Default,
a. If either party determines that the other party is in default under this
Contract, the party claiming default by the other party shall give written notice to the
other party, which states specifically the nature of the default and the remedy for the
default that the party intends to seek. The notice must be mailed to the defaulting party
at the address provided in Section 24 of this Contract. The defaulting party has or will
have ninety (90) days in which to cure the default, or if the default cannot be reasonably
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cured within the ninety (90) day period, the defaulting party shall use reasonable efforts
to undertake to cure the default within the ninety (90) day period. If the defaulting party
does not cure the default and reimburse the party not In default for any and all costs
incurred as a result of the breath within ninety (90) days, or if the default cannot be
reasonably cured within the ninety (90) day period, or If the defaulting party does not
use reasonable efforts to undertake to cure the default and reimburse the party not in
default for any and all costs incurred as a result of the breach within the ninety (90) day
period, the party claiming default may seek any remedy available at law or equity,
including an action in mandamus or for specific performance.
b. No waiver of any breach or default by any party or of performance may be
deemed a waiver in the future, nor may any waiver be deemed or construed to be
waiver of subsequent breach or default of any kind, character, or description, under any
circumstances.
c. However, the right to cure a default may not prevent the City from
enforcing Section 13 of this Contract if the City has imposed water conservation
measures upon its residents.
18. Assignment.This Contract may not be assigned by Violet without the prior written
consent of the governing body of the City, which consent will not be unreasonably
withheld, unless the assignment would alter or restrict the City's rights under this
Contract. Notwithstanding the above and forgoing, the City agrees that Violet may
pledge this Contract as security for a loan with the United States Department of
Agriculture, Rural Development Division, to be used for the installation of water lines
within the certificated area of Violet as set forth in its Certificate of Convenience and
Necessity numbered 10920, issued by the Public Utility Commission of Texas.
19. Non - Curable Material Breach by Violet. Each of the following is a non -
curable breach under this Agreement:
a.any representation or warranty of Violet contained herein that is knowingly false
or misleading in any material respect as of the date made or deemed to have
been made; or
b. Violet (1) admits in writing its inability to pay its debts as they become due or (2)
file a petition in bankruptcy or for the reorganization or for the adoption of an
arrangement under the Bankruptcy Code as now or in the future amended, or file
a pleading asking for such relief, or have or suffer to be filed an involuntary
petition in bankruptcy against it which is not contested and discharged within
sixty (60) days, or (3) make an assignment for the benefit of creditors, or (4)
consent to an appointment of a trustee or receiver for all or a major portion of its
property, or (5) be finally adjudicated a bankrupt or insolvent under any federal or
state law, or (6) suffer the entry of a court order, any federal or state law
appointing a receiver or trustee for all or a major part of its property or ordering
the winding up or liquidation of its affairs, or approving a petition filed against it
under the Bankruptcy Code, as now or in the future amended, which order, if not
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consented to by it shall not be vacated, denied, set aside or stayed within sixty
(60) days after the date of its entry, or (7) suffer the entry of a final judgment for
the payment of money and the same shall not be discharged or a provision made
for its discharge within thirty (30) days from the date of entry thereof or an appeal
or other appropriate proceeding for review thereof shall not be taken within said
period and a stay of execution pending such appeal shall not be obtained, or (8)
suffer a writ or warrant of attachment or any similar process to be issued by any
court against all or any substantial portion of its property and such writ or warrant
of attachment or similar process is not stayed or is not released within forty -five
(45) days after its entry or levy or after any stay is vacated or set aside, or (9)
suffer the placing of a judgment lien on its property and failure to cause such lien
to be released and discharged within forty -five (45) days from the date such lien
took effect; or
c. Violet conceals, removes or permits to be concealed or removed, any part of its
property with the intent to hinder, delay or defraud its creditors or shall make any
transfer of any of its property to, or for the benefit of a creditor at a time when other
creditors similarly situated have not been paid; or suffer or permit while insolvent any
creditor to obtain a lien upon its property through legal proceedings, which lien is not
vacated within thirty (30) days from the date thereof; or
d. Violet.
1. fails to make payment to the City for any month or period of time;
2. sells water to any customer for resale;
3. fails to notify the City of any customer who resells water obtained under this
Contract; or
4. fails to follow Sections 7, 8, 11 or 13 of this Contract.
20. INDEMNITY. VIOLET COVENANTS AND AGREES TO HOLD HARMLESS
AND SHALL UNCONDITIONALLY INDEMNIFY, PROTECT AND DEFEND THE
CITY, ITS ELECTED OFFICIALS, EMPLOYEES, OFFICERS, DIRECTORS,
VOLUNTEERS AND REPRESENTATIVES OF THE CITY, INDIVIDUALLY OR
COLLECTIVELY, FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS,
DEMANDS, ACTIONS, LIABILITIES, LIENS, LOSSES, DAMAGES, COSTS AND
EXPENSES, OF EVERY KIND AND CHARACTER WHATSOEVER, INCLUDING
WITHOUT LIMITATION BY ENUMERATION THE AMOUNT OF ANY JUDGMENT,
PENALTY, INTEREST, COURT COSTS AND REASONABLE LEGAL FEES
INCURRED IN CONNECTION WITH THE SAME, OR THE DEFENSE THEREOF,
FOR OR IN CONNECTION WITH LOSS OF LIFE OR PERSONAL INJURY
(INCLUDING EMPLOYEES OF VIOLET AND OF CITY) DAMAGE TO PROPERTY
(INCLUDING PROPERTY OF VIOLET AND OF CITY), TO THE EXTENT CAUSED
BY THE NEGLIGENT ACTS OR OMISSIONS OF, OR INCIDENT TO OR IN
CONNECTION WITH OR RESULTING FROM THE NEGLIGENT ACTS OR
OMISSIONS OF, VIOLET, ITS AGENTS, SERVANTS, AND EMPLOYEES, OR ITS
SUBCONTRACTORS AND THEIR AGENTS, SERVANTS, AND EMPLOYEES, IN
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CONNECTION WITH THIS AGREEMENT AND THE WATER TO BE SUPPLIED
UNDER THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE
CONTRARY INCLUDED HEREIN, IN NO EVENT MAY THIS OR ANY
PARAGRAPH UNDER THIS AGREEMENT BE CONSTRUED AS WAIVING ANY
GOVERNMENTAL IMMUNITY AVAILABLE TO THE CITY UNDER TEXAS LAW
AND WITHOUT WAIVING ANY DEFENSES OF EITHER OF THE PARTIES
UNDER TEXAS LAW.
IN ADDITION TO THE ABOVE, VIOLET ALSO COVENANTS AND AGREES TO
HOLD HARMLESS AND SHALL UNCONDITIONALLY INDEMNIFY, PROTECT
AND DEFEND THE CITY, ITS ELECTED OFFICIALS, EMPLOYEES, OFFICERS,
DIRECTORS, VOLUNTEERS AND REPRESENTATIVES OF THE CITY,
INDIVIDUALLY OR COLLECTIVELY, FROM AND AGAINST ANY AND ALL THIRD
PARTY CLAIMS, DEMANDS, ACTIONS, LIABILITIES, LIENS, LOSSES,
DAMAGES, COSTS AND EXPENSES, OF EVERY KIND AND CHARACTER
WHATSOEVER, INCLUDING WITHOUT LIMITATION BY ENUMERATION THE
AMOUNT OF ANY JUDGMENT, PENALTY, INTEREST, COURT COSTS AND
REASONABLE LEGAL FEES INCURRED IN CONNECTION WITH THE SAME, OR
THE DEFENSE THEREOF, FOR OR IN CONNECTION WITH LOSS OF LIFE OR
PERSONAL INJURY (INCLUDING EMPLOYEES OF VIOLET AND OF CITY)
DAMAGE TO PROPERTY (INCLUDING PROPERTY OF VIOLET AND OF CITY),
TO THE EXTENT CAUSED BY THE INTENTIONAL OR DELIBERATE
MISCONDUCT, GROSSLY NEGLIGENT, WILLFUL ACTS OR OMISSIONS OF,
VIOLET, ITS AGENTS, SERVANTS, AND EMPLOYEES, OR ITS
SUBCONTRACTORS AND THEIR AGENTS, SERVANTS, AND EMPLOYEES, IN
CONNECTION WITH THIS AGREEMENT AND THE WATER TO BE SUPPLIED
UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO VIOLATIONS OF
ANY STATUTE, REGULATION, ORDINANCE OR PROVISION OF THIS
AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY INCLUDED
HEREIN, IN NO EVENT MAY THIS OR ANY PARAGRAPH UNDER THIS
AGREEMENT BE CONSTRUED AS WAIVING ANY GOVERNMENTAL IMMUNITY
AVAILABLE TO THE CITY UNDER TEXAS LAW AND WITHOUT WAIVING ANY
DEFENSES OF EITHER OF THE PARTIES UNDER TEXAS LAW.
21.Authority to Execute. Both parties represent that the individual signing this
Contract on behalf of each of the parties has been duly authorized to execute this
Contract by proper ordinance or resolution of its governing body (e.g., the City's City
Council and Violet's Board of Directors), and certified copies of the authorization
shall be Exhibit "D," and Violet's authorization shall be Exhibit "E."
22. Notices and Addresses. Any notice, communication, or statement required to
be given pursuant to this Contract will be in writing and deemed to have been
received when delivered in person or three (3) days after mailing if sent by certified
mail, postage prepaid, return receipt requested, to the address of the respective
party indicated below:
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City of Corpus Christi Water Department
Attn.: Director of Water Operations
2426 Holly Road
Corpus Christi, Texas 78415
Phone: (361) 826 -1689
Fax: (361) 826 -4326
Violet Water Supply Corporation
Attn.: Violet Manager
P.O. Box 1146
3051 highway 44
Robstown, Texas 78380
Phone: (361) 387 -3350
Fax: (361) 387 -5248
23. Regulatory Agencies. Violet and City agree that the effectiveness of this Contract
is subject to the jurisdiction of the TCEQ and is dependent upon compliance with the
regulations in Title 31, Texas Administrative Code, Chapter 295 and 297, Subchapter J.,
and any amendments thereto.
24. Periodic Review of Contract Provisions. Violet and the City agree to review
the terms and conditions set forth herein every five (5) years to determine whether or
not a change in circumstances may require an amendment to this agreement. If a party
determines that a change in circumstances requires an amendment then, in that event,
the party recommending the amendment shall notify the other party in writing of the
proposed amendment_ The receiving party shall then have a period of thirty (30) days to
review the proposed amendment and to advise, in writing either its acceptance of the
proposed amendment, its objections to the proposed amendment or an offer of a
counterproposal. In the event the parties are unable to agree on a proposed
amendment, then, in that event, the parties agree to submit to the alternate dispute
resolution process set forth in Paragraph 7. Billing, as set forth hereinabove.
25. Severability. In case any one or more provisions contained in this Contract is
for any reason held to be invalid, Illegal, or unenforceable in any respect, the invalidity,
illegality, or unenforceability does not affect any other provision of this Contract, and this
Contract will be construed as if the invalid, illegal, or unenforceable provision had never
been contained in this Contract_
26. Captions. All titles of the sections of this Contract have been inserted for
convenience of reference only and are not considered a part of this Contract and in no
way will they affect the interpretation of any provisions of this Contract.
27. Modifications. Any amendments, or alternative or supplementary agreements,
to this Contract must be made in writing and duly executed by an authorized
representative or agent of each of the parties to this Contract.
28. Parties at Interest. This Contract is for the sole and exclusive benefit of
the parties, and shall never be construed to confer any benefit on any third party_ This
Contract will be binding upon and inure to the benefit of the parties and their respective
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successors and assigns where permitted by this Contract.
29. Texas Law to Apply. This Contract will be construed under and in accordance
with the laws of the State of Texas.
30. Venue. Any action or proceedings relating to this Contract must be taken in
Nueces County, Texas. The parties agree that the courts in Nueces County, Texas,
shall have exclusive jurisdiction over this agreement.
31. Prior Agreements Superseded. This Contract constitutes the sole and
only agreement of the parties and supersedes any prior understandings or written or
oral agreements between the parties respecting the within subject matter.
32. All Agreements Contained in this Written Instrument. This Contract
represents the entire agreement between the Violet and City and supersedes all
prior negotiations, representations, or agreements either oral or written.
The parties have executed this Contract in multiple counterparts; each executed copy
shall be considered as an original, by their respective duly authorized
representatives, this day of , 2013 and is effective on the
day of , 2013.
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"VIOLET"
ATTEST
1�
Sam is
Secretary
VIOLET WATER SUPPLY CORPORATION
William Ordner
President
APP O D this f S day of , 2013.
arles W. Zahn, .
Violet's Attorney
ACKNOWLEDGMENT
THE STATE OF TEXAS §
COUNTY OF NUECES §
This instrument was acknowledged before me on the ) day of ,
2013, by William Ordner, President, Violet Water Supply Corporation, a water supply
corporation, on behalf of said corporation.
NOTARY PUBLIC — STATE OF TEXAS
THE "CITY"
ATTEST:
Armando Chapa
City Secretary
THE CITY OF CORPUS CHRISTI
Oscar Martinez
Assistant City Manager
for City Manager Ronald L. Olson
Al wed as egal form this day of , 2013.
Veronica 6Ganas
Senior Assistant City Attorney (I I
7- for City Attorney Carlos Valdez I�
15 SE TA Rv
ACKNOWLEDGMENT
THE STATE OF TEXAS §
COUNTY OF NUECES §
�,
This instrument ��~
�� was acknowledged before me on the day of ,
2013, by Oscar Martinez, Assistant City Manager for City Manager Fldhi L. Olson,
City of Corpus Christi, a Texas home rule municipal corporation, on behalf of said
corporation.
NOTARY (!!L — STATE OF TEXAS
16
JOS1E EVEPETT
-, NotaryPubk- SlatEflfiTes s
MY �y om1ssion OF3
notob*T 17 2
NOTARY (!!L — STATE OF TEXAS
16