Ordinance No. 15,355 ORDINANCE NO. 15,355
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
APPROVING A WATER SUPPLY CONTRACT—TREATED WATER BETWEEN THE
BAYTOWN AREA WATER AUTHORITY AND LAKE MUNICIPAL UTILITY
DISTRICT;AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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WHEREAS, the Baytown Area Water Authority's enabling legislation requires that the City Council
approve the contract before Baytown Area Water Authority("BAWA")enters into the same; and
WHEREAS, on January 18, 2023, the Board of Directors of BAWA met and decided to approve a
Water Supply Contract—Treated Water between BAWA and Lake Municipal Utility District subject to the
approval of both the City of Baytown and the City of Houston; and
WHEREAS, the proposed agreement is similar to that executed between BAWA and the City of
Baytown and is consistent with the requirements contained in BAWA's agreement with the City of Houston;
and
WHEREAS, this contract will supersede the Wholesale Water Supply Contract between the parties
dated December 4, 1980,and all amendments thereto and will expire December 31,2030; and
WHEREAS, the contract quantity has increased from 1.0 MGD to 0.855 MGD; and
WHEREAS, the City of Baytown desires to approve the Water Supply Contract —Treated Water
between BAWA and Lake Municipal Utility District;NOW THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS:
Section 1: That the recitals set forth hereinabove are hereby found to be true and correct.
Section 2: That the City Council of the City of Baytown,Texas,hereby approves a Water Supply
Contract—Treated Water between the Baytown Area Water Authority and Lake Municipal Utility District. A
copy of said contract is attached hereto as Exhibit"A"and incorporated herein for all intents and purposes.
Section 3: This ordinance shall take effect immediately from and after its passage by the City
Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the Cit ouncil of the City of
Baytown this the 26`'day of January,2023.
�pY7G!vy DON CAP TILLO, Ayor
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ANGELA JACK N,City C
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APPROVED AS T
SCOTT LEMON ,City Attorney
R:Karen Anderson ORDINANCES\2023\2023.01.26WpprovingBAWAContractWithLakeMUD.docx
EXHIBIT "A"
Water Supply Contract -- Treated Water
Lake Municipal Utility District
STATE OF TEXAS §
COUNTY OF HARRIS §
This Water Supply Contract--Treated Water, hereinafter referred to as the "Contract," is
made and entered into on the date herein after last specified by and between the Baytown Area
Water Authority, a governmental agency and a body politic and corporate of the State of Texas,
created pursuant to Chapter 600, Acts of the 63`d Legislature, Regular Session, 1973, hereinafter
referred to as "BAWA," and the Lake Municipal Utility District, having a mailing address of 600
Jefferson, Suite 780, Houston,TX 77002-7395, hereinafter referred to as the"DISTRICT."
WHEREAS, BAWA has the right under a contract with the City of Houston to buy
untreated water from the City of Houston; and
WHEREAS, BAWA has constructed certain facilities to treat and deliver the
aforementioned untreated water to the DISTRICT as treated water at several points of delivery;
and the DISTRICT has constructed or caused to be constructed certain facilities to enable the
DISTRICT to receive the aforementioned treated water; and
WHEREAS, BAWA is desirous of selling large quantities of treated water from such
source or sources to the DISTRICT,and the DISTRICT,subject to the terms hereof, is desirous of
purchasing from BAWA its treated water requirements;and
WHEREAS, BAWA and DISTRICT have found, and do hereby find, that BAWA and
DISTRICT are authorized by the laws of the State of Texas to enter into a contract for the sale of
water upon such terms and for the period of time hereinafter set forth; and
WHEREAS,the DISTRICT is authorized to enter into a contract for the purchase of treated
water from BAWA pursuant to the Texas Water Code;
NOW THEREFORE, for and in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto do hereby mutually agree as follows:
ARTICLE I
DEFINITIONS
Unless a different meaning or intent clearly appears from the context,the following words
and terms shall have the meanings specified in this Article,respectively:
1.01 "Act" means Chapter 600,Acts of the 63`d Legislature, Regular Session, 1973.
1.02 "BAWA Contract"means the Water Supply Contract and all Contract Amendments
between the City of Houston and Baytown Area Water Authority. Copies of such contract
and amendments are attached hereto and incorporated herein for all intents and purposes
as Exhibits"A" and "B," respectively.
1.03 "Beginning Date" shall mean the date that DISTRICT begins receiving treated
water from BAWA under this Contract or the effective date hereof, whichever is later.
Such date may occur after the effective date of this Contract as defined in Article IX;
provided, however, that if DISTRICT does not begin receiving treated water within one
year of the effective date hereof, BAWA shall be under no further obligation to supply
DISTRICT with treated water.
1.04 "DISTRICT's Facilities" shall mean facilities constructed by DISTRICT to enable
DISTRICT to receive treated water.
1.05 "Contract Quantity" shall mean the maximum quantity of treated water that BAWA
agrees to reserve and sell to DISTRICT pursuant to Section 2.01 herein.
1.06 "Contract Term" is defined in Article IX.
1.07 "General Manager" shall mean the General Manager of the Baytown Area Water
Authority or any successor agency and all persons designated by the General Manager to
administer the sale and delivery of water to DISTRICT.
1.08 "MGD" is an abbreviation for million gallons of water per day. As used in this
contract, "MGD" refers to a quantity of water during a period of time expressed for
convenience in terns of an average daily quantity during a calendar month (unless a
different period of time is specified). The volume of two MGD for a calendar month, for
example, is calculated as follows: two million gallons multiplied by the number of days in
such calendar month.
1.09 "Point of Delivery" shall mean those delivery points as indicated on Exhibit "C,"
which is attached hereto and incorporated herein for all intents and purposes, to which
BAWA agrees to deliver treated water to DISTRICT.
1.10 "Point of Measurement" shall mean the location of the meter at which DISTRICT's
consumption of water is measured, more particularly described in Exhibit "C."
1.11 "Project" means the property, works, facilities and improvements, whether
previously existing or to be made,constructed or acquired,within or without the boundaries
of BAWA, necessary
(a) to acquire surface water supplies from sources both within and without the
boundaries of BAWA, including particularly the sources provided by
BAWA's Contract (herein defined),
(b) to conserve, store, transport, treat and purify untreated water purchased by
BAWA pursuant to BAWA's Contract, and
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(c) to distribute, sell and deliver treated water to DISTRICT pursuant to the
terms of the Contract.
1.12 "Service Area" shall mean the area within the boundaries more particularly
described in Exhibit "D," which is attached hereto and incorporated herein for all intents
and purposes.
1.13 "TCEO" shall mean the Texas Commission on Environmental Quality or its
successor.
1.14 "Water" shall mean potable water meeting the minimum drinking water standards
prescribed by Texas Department of Health Resources and Texas Commission on
Environmental Quality, and their successor agencies.
ARTICLE II
SALE AND DELIVERY OF WATER
2.01 Subject to the terms and conditions of this Contract, during the Contract Term,
BAWA agrees to sell and deliver(or cause to be delivered)to DISTRICT,all of DISTRICT's water
requirements of treated water to be supplied at the Points of Delivery at daily rates of delivery;and
DISTRICT agrees to purchase from BAWA all of DISTRICT's treated water requirements for
resale at the Points of Delivery during the term of this Contract. It is expressly agreed to and
understood that BAWA shall not be obligated to deliver to DISTRICT treated water in excess of
the Contract Quantity, which shall be the monthly average per day of 0.855 MGD.
2.02 The Points of Delivery for treated water sold under this Contract shall be designated
in writing by DISTRICT; provided, however, BAWA reserves the right to reject any Point of
Delivery designated by DISTRICT which would affect, interfere with or increase the cost of any
other facilities or operations which BAWA might wish to construct or implement, or plan to
construct or implement, or which would adversely affect BAWA's ability to provide treated water
to any of its customers. Both BAWA and DISTRICT agree that the Points of Delivery shall be
those indicated on Exhibit "C,"which is attached hereto and incorporated herein for all intents and
purposes. Additionally,DISTRICT may give BAWA notice in writing of any additional or change
in Point(s) of Delivery designated by DISTRICT, and BAWA agrees to accept or reject such
Point(s) of Delivery by a response in writing within thirty(30) days after BAWA's receipt of the
notice.
2.03 Treated water may be delivered to DISTRICT from any source or combination of
sources available to BAWA.
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2.04 The treated water to be delivered shall meet minimum standards prescribed by the
State of Texas for municipal purposes(as such term is defined by the TCEQ in its rules)and shall
be only used by DISTRICT within the Service Area.
2.05 If DISTRICT wishes to reserve for itself additional monthly quantities of treated
water, DISTRICT must notify BAWA in writing of DISTRICT's desire to do so. The General
Manager may,at his discretion after considering the treated water requirements of DISTRICT and
BAWA's obligations and commitments, increase the Contract Quantity to a monthly average per
day not to exceed one hundred ten percent(110%)of the highest monthly usage during the previous
twelve(12)month period;provided that such adjustment may be made only if the General Manager
has not given an adjustment pursuant to this section within the previous twelve (12) months.
BAWA may, at its discretion, discontinue delivery of such additional monthly requirements of
treated water by giving DISTRICT thirty (30)days'written notice.
2.06 DISTRICT shall own and be responsible for all lines connected to BAWA's
transmission line, beginning at the point where the metering device is installed to meter sales to
DISTRICT.
ARTICLE III
CONSTRUCTION OF THE PROJECT
3.01 DISTRICT agrees to proceed promptly with the acquisition and construction of the
Project with monies lawfully available for such purpose after obtaining written approval of the
plans and specifications from BAWA. However, such approval shall not be deemed to be for the
benefit of DISTRICT,but rather,just for the protection of BAWA's system.
3.02 If DISTRICT desires to materially revise the scope of or the plans and
specifications for the Project, such proposed revisions shall be submitted to BAWA for approval.
If BAWA approves such revisions, the Project shall be modified.
ARTICLE IV
RATES AND PRICES
4.01 DISTRICT agrees to pay BAWA's costs through the establishment of rates for the
purchase of treated water and by payments to BAWA based on such established rates. BAWA
shall periodically establish rates for the purchase of treated water. Billing at the rate for water as
specified hereinbelow shall not commence until the effective date of this Contract.
4.02 Whenever DISTRICT's consumption shall exceed Contract Quantity by ten percent
(10%),a five percent(5%)surcharge shall be charged against that portion of the consumption that
exceeds the Contract Quantity; provided, however, this surcharge shall not apply to any increase
in the quantity of treated water granted by the General Manager pursuant to Section 2.05 hereof.
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4.03 All water sold and delivered by BAWA to DISTRICT for which DISTRICT is
obligated to pay hereunder shall be sold to DISTRICT at the rate per one thousand gallons
approved annually by the Board of Directors of the DISTRICT.
4.04 The amount of water delivered to DISTRICT shall be measured by the metering
equipment located at the point of delivery.
4.05 Additionally, DISTRICT understands and agrees that BAWA may at any time, by
order duly enacted,increase or change the price or prices for treated water as set forth in this article.
ARTICLE V
REPORTS
5.01 Within fifteen (15) days after the end of each quarterly period during the term of
this Contract, DISTRICT shall furnish BAWA with a statement under oath showing the quantities
and sources of all water for use or resale by DISTRICT.
ARTICLE VI
MEASURING EOUIPMENT
6.01 At its own cost and expense, DISTRICT shall furnish and install at the Point of
Delivery hereunder, measuring equipment properly equipped with meters, totalizers and devices
of standard type for measuring and recording accurately the quantity of water delivered under this
Contract. The meters shall have a capacity for measuring the quantity of water delivered within
an accuracy tolerance of two percent(2%)plus or minus for a given rate of flow. Such measuring
equipment shall be approved by BAWA,and after BAWA's approval of the installation,same shall
become property of BAWA. All measuring equipment shall be owned by BAWA, even when
purchased by DISTRICT,and all measuring equipment shall be located at the Point of Delivery as
shown on Exhibit "C." At its own cost and expense, DISTRICT shall also install, operate and
maintain, as required by BAWA, pressure regulating devices and equipment. These pressure
regulating devices and equipment shall remain the property of the DISTRICT but shall be
approved by BAWA.
6.02 During all reasonable hours as determined by the General Manager in his sole
discretion, BAWA, the City of Houston, and the Coastal Water Authority of Texas shall have
access to the measuring equipment. DISTRICT may have access to all records pertinent to
determining the measurement and quantity of treated water actually delivered hereunder, but the
reading of the measuring equipment for purposes of billing shall be done by BAWA.
6.03 After approved installation thereof, BAWA shall maintain the measuring
equipment within the accuracy tolerance specified in Section 6.04 by periodic tests. BAWA shall
conduct such tests at least once every twelve(12)months and shall notify DISTRICT at least forty-
eight(48)hours in advance of the time and location at which tests are to be made. BAWA agrees
to properly test said measuring equipment at BAWA's cost when requested to do so by DISTRICT
once every twelve (12) months. If DISTRICT requests an additional test within twelve (12)
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months, BAWA shall charge DISTRICT an amount equal to BAWA's costs to perform such test
unless the test reveals that the equipment registers one hundred two percent(102%)or more for a
given flow rate. In addition, DISTRICT shall have the right to independently check, at its own
cost,said measuring equipment at any time upon forty-eight(48)hours'notification to the General
Manager and opportunity for the General Manager to witness such tests.
6.04 Should any test of the measuring equipment in question show that the equipment
registers either more than one hundred two percent(102%)or less than ninety-five percent(95%)
of the water delivered for a given flow rate,the total quantity of water delivered to DISTRICT will
be deemed to be the average daily consumption as measured by the measuring equipment when in
working order, and the meter shall be calibrated to the manufacturer's specifications (in the case
of Venturi meters) or the AWWA specifications (for all other types of meters) for the given rate
of flow,or replaced by BAWA with accurate measuring equipment that is tested before it is placed
in service. The adjustment shall be for a period extending back to the time when the inaccuracy
began, if such time is ascertainable; and if such time is not ascertainable, for a period extending
back to the last test of the measuring equipment or one hundred twenty (120) days, whichever is
shorter. If, for any reason, the measuring equipment is out of service or out of repair and the
amount of treated water delivered cannot be ascertained or computed from the reading thereof,
water delivered during the period shall be estimated and agreed upon by the parties hereto on the
basis of the best data available.
As used in this section, the expression "given rate of flow" means one of the following
selected by the General Manager:
(a) the total quantity of water delivered during the preceding period(usually a calendar
month)as reflected by the totalizer,converted to gallons per minute;
(b) high, low and intermediate rates of flow in the flow rate, as reflected by the flow
recording devices;
(c) the applicable Contract Quantity for the current period, usually a calendar month,
converted to gallons per minute;or
(d) AWWA-specified test flow rates for that size and type of meter.
6.05 In the event of a dispute between BAWA and DISTRICT as to the accuracy of the
testing equipment used by BAWA to conduct the accuracy test, an independent check may be
mutually agreed upon between DISTRICT and BAWA and shall be conducted by an independent
measuring equipment company suitable to both DISTRICT and BAWA. The cost of such test
shall be at DISTRICT's sole expense.
6.06 DISTRICT may install, at its own cost and expense, such check meters in
DISTRICT's pipeline or canal as may be deemed appropriate, but BAWA shall have the right of
ingress and egress to such check meters during all reasonable hours; provided, however, that
billing computations shall be on the basis of the results of the measuring equipment set forth above.
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ARTICLE VII
BILLING AND PAYMENT
7.01 As used in this Article VII,the term "day" shall mean a period of twenty-four(24)
consecutive hours beginning at a mutually agreed-upon time on one calendar day and ending at
the same time on the next succeeding calendar day, and the term "month" shall mean a period
beginning at a mutually agreed-upon time on the first day of a calendar month and ending at the
same time on the first day on the next succeeding calendar month.
7.02 The measuring equipment shall be read on the day at the end of each month (or at
such period of frequency arranged between the parties) and at a mutually agreed upon time,or as
near thereto as practicable.
7.03 The quantities of treated water for which payment is due by DISTRICT hereunder
in any month shall be the total quantity of treated water delivered to DISTRICT in such month
determined by the measuring equipment described in Article VI hereof.
7.04 BAWA shall bill DISTRICT at DISTRICT's address within ten (10)days after the
read date by a statement showing the quantity of water used during the preceding month. Payment
shall be due and payable to BAWA at its offices in Baytown, Harris County, Texas, on or before
the twentieth(201h)day after receipt of such statement.
7.05 Should DISTRICT fail to tender payment of any amount when due,interest thereon
shall accrue at the rate specified in Section 2251.025 of the Texas Government Code from the date
when due until paid,and DISTRICT shall be deemed to be in default.
ARTICLE VIII
TITLE TO AND RESPONSIBILITY FOR WATER
8.01 As between BAWA and DISTRICT, BAWA shall be in exclusive control and
possession of, and solely responsible for, all treated water deliverable hereunder and solely
responsible for any damage or injury caused thereby until the same shall pass through the Point of
Delivery. Thereafter, DISTRICT shall be in exclusive control and possession thereof and solely
responsible for any injury or damage caused thereby.
8.02 BAWA MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING
THE QUALITY OR DELIVERY PRESSURE OF TREATED WATER, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
8.03 With respect to all water handling facilities located between the Point of Delivery
and the Point of Measurement, BAWA and DISTRICT specifically agree:
(a) that all such facilities, other than the measurement equipment itself, shall be and
remain the property of DISTRICT subject to the terms of this Contract;
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(b) that DISTRICT shall take all reasonable steps to maintain such facilities and to
prevent leaks or discharges from such facilities;
(c) that DISTRICT shall repair any such leak or discharge at once upon receiving
notice thereof and pay BAWA the price of any water lost by reason of such a leak
or discharge;
(d) that DISTRICT shall correct or repair any damage caused by any such leak or
discharge and shall hold BAWA harmless from and against any such damage and
claims therefore;
(e) that DISTRICT shall alter or relocate, at its sole cost,any such facilities whenever
BAWA shall reasonably request in writing that the same be done;and
(f) that DISTRICT shall promptly remove such facilities and restore their locations to
their pre-existing conditions whenever this Contract is no longer in effect and
BAWA so requests in writing.
ARTICLE IX
TERM
This Contract shall be in full force and effect beginning on the date of execution by BAWA
until December 31,2030,at 8:00 a.m.
ARTICLE X
PERFORMANCE BY BAWA AND DISTRICT
10.01 BAWA covenants and agrees that it will not contract for the sale of water to other
users to such an extent or for such quantities as to impair BAWA's ability to perform fully and
punctually its obligations to DISTRICT under this Contract. In case of temporary shortage of
water, notwithstanding BAWA's compliance with the portions of this Article X, BAWA shall
distribute the available supply as provided by the laws of the State of Texas, particularly Section
11.039(a)of the Texas Water Code, as amended.
10.02 Pursuant to the Amendatory Contract entered into by the City of Houston and the
San Jacinto River Authority,which is incorporated herein by this reference,DISTRICT covenants
and agrees that it shall take treated water for the purpose of distribution through its system, and
such water shall be used for municipal purposes(as such term is defined by TCEQ Rules,currently
in effect or as hereinafter amended) and for no other purposes. DISTRICT covenants and agrees
that such treated water shall be sold, distributed or used and ultimately consumed only for
residential households or other strictly municipal purposes exclusively within the Service Area.
No extension of these boundaries may be made by DISTRICT without written consent of BAWA
as well as the written consent of the San Jacinto River Authority and City of Houston, when
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required pursuant to the Water Supply Contract between the City of Houston and BAWA, dated
October 24, 1994. DISTRICT agrees to include covenants similar to those contained in this
Section 10.02 in any sales or contracts for sale of water by DISTRICT to any other entity.
DISTRICT agrees to submit the wording of such covenants to BAWA for the written approval of
BAWA and all other required entities prior to entering into such contracts.
DISTRICT understands and agrees that BAWA,the City of Houston and/or the San Jacinto
River Authority may enforce the covenants contained in Section 10.02 herein by an action brought
directly against DISTRICT. In the event that BAWA and/or the City of Houston maintains any
legal proceeding to enforce such covenants, DISTRICT agrees to indemnify BAWA and/or the
City of Houston in the amount of all expenses relating to the legal proceeding, including, but not
limited to,costs of court and reasonable attorneys' fees.
10.03 DISTRICT acknowledges that according to the terms of the contract between
BAWA and the City of Houston, BAWA may be liable to the City of Houston and/or the San
Jacinto River Authority for monetary damages in the event that DISTRICT (or any purchaser of
water from or through DISTRICT)fails to comply with the restrictions and limitations on the sale
of water set out in Section 10.02 herein. DISTRICT acknowledges that such monetary damages
would amount to seventy-five percent (75%) of the consideration or revenue received by BAWA
for the estimated amount of water distributed, sold or used in violation of such restrictions or
limitations,plus all litigation expenses,reasonable attorneys'fees,and all other remedies available
to the City of Houston and/or the San Jacinto River Authority. DISTRICT hereby agrees to totally
indemnify, defend, and save BAWA harmless from and against any such expenses and liability
which BAWA might incur, or any loss BAWA might suffer, as a result of any failure by
DISTRICT,or any purchaser of water from or through DISTRICT,to comply with such restriction
and limitation. DISTRICT agrees that in the event that DISTRICT furnishes or sells water or water
services to a third party that in turn will furnish water to the ultimate consumer, DISTRICT shall
include covenants in any such sales or contracts for sale of water to such third party(ies)to ensure
that said other entity(ies)will likewise indemnify, hold harmless,and defend BAWA. DISTRICT
agrees to submit the wording of such covenants for the approval of BAWA prior to entering into
such contracts.
DISTRICT acknowledges that according to the terms of the contract between the City of
Houston and the San Jacinto River Authority,the City of Houston may be liable to the San Jacinto
River Authority for monetary damages in the event that DISTRICT (or any purchaser of water
from or through DISTRICT) fails to comply with the restrictions and limitations on the sale of
water set out in Section 10.02 herein. DISTRICT acknowledges that such monetary damages
would amount to seventy-five percent(75%)of the consideration or revenue received by the City
of Houston for the estimated amount of water distributed, sold or used in violation of such
restrictions or limitations, plus all litigation expenses, reasonable attorneys' fees, and all other
remedies available to the San Jacinto River Authority. DISTRICT hereby agrees to fully
indemnify,defend,and save the City of Houston harmless from and against any such expenses and
liability which the City of Houston might incur or any loss the City of Houston might suffer, as a
result of any failure by DISTRICT, or any purchaser of water from or through DISTRICT, to
comply with such restrictions and limitations. DISTRICT agrees that in the event that DISTRICT
furnishes or sells water or water services to a third party that in turn will furnish water to the
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ultimate consumer, DISTRICT shall include covenants in any such sales or contracts for sale of
water to such third party(ies) to ensure that said other entity(ies) will likewise indemnify, hold
harmless, and defend the City of Houston. DISTRICT agrees to submit the wording of such
covenants for the approval of BAWA and the City of Houston prior to entering into such contracts.
10.04 DISTRICT agrees to maintain, at its sole expense, its water wells, if any, in good
repair and working order to facilitate the use of such water wells as an emergency source of supply,
if required, should BAWA be unable to deliver the Contract Quantity of water for any reason.
DISTRICT shall bear all costs of maintaining and supplying such emergency sources of supply.
ARTICLE XI
ENVIRONMENTAL CONSIDERATIONS
11.01 On or before the first anniversary of the effective date of this contract, DISTRICT
shall approve, implement and throughout the term hereof remain in full compliance with a water
conservation program, including, but not limited to, a drought contingency plan, in accordance
with the requirements of the TCEQ. Such plan(and any amendments thereto) shall be submitted
to the appropriate authority as required by state law for review and approval. In the event that the
TCEQ adopts new requirements, DISTRICT shall adopt an amended plan and submit the same to
the appropriate authority for review and approval.
11.02 DISTRICT agrees that in the event that DISTRICT furnishes or sells water or water
services to a third party that in turn will furnish water to the ultimate consumer, the requirements
of this Contract relative to water conservation shall be met through contractual agreements
between DISTRICT and the third party, providing for the implementation and continued
compliance with a water conservation program consistent with the requirements of the TCEQ.
ARTICLE XII
REMEDIES UPON DEFAULT
12.01 In the event of any default by DISTRICT in the performance of any of DISTRICT's
obligations hereunder which shall continue for a period of thirty (30) days or more, BAWA shall
give written notice to DISTRICT specifying the matter with respect to which DISTRICT is in
default and requesting that the same be remedied with promptness and dispatch. In the event
DISTRICT, within forty-five (45) days after the mailing of such notice by BAWA, has failed to
remedy the matter in default,BAWA may suspend further delivery of treated water to DISTRICT
hereunder;and in the event such default on the part of DISTRICT continues for an additional thirty
(30) days, BAWA may, by an additional written notice to DISTRICT, cancel and terminate this
contract, whereupon all rights of DISTRICT and all obligations of BAWA hereunder shall
terminate and be at an end. The exercise of such rights shall be in addition to any other remedies
available to BAWA under the laws of the State of Texas.
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12.02 During any monthly period in which BAWA is unable to deliver to DISTRICT,
DISTRICT's daily requirements of water,whether as a result of temporary curtailments resulting
from temporary shortages as provided in Section 10.01 hereof or of force majeure as provided in
Article XIII hereof, DISTRICT shall be obligated to pay BAWA only for the quantities of treated
water actually delivered to DISTRICT under this contract during such month. During any such
period,DISTRICT shall be free to obtain treated water from other sources.
12.03 The failure of either party to insist in any one or more instance upon performance
of any of the terms, covenants or conditions of this Contract,shall not be construed as a waiver or
relinquishment of the future performance of any such term, covenant, or condition by the other
party hereto, but the obligation of such other party with respect to future performance shall
continue in full force and effect.
ARTICLE XIII
FORCE MAJEURE
13.01 In the event either party is rendered unable, wholly or in part, by force majeure to
carry out any of its obligations under this Contract other than the payment of money, or in the
event DISTRICT is rendered unable, wholly or in part, by force majeure to operate DISTRICT's
facilities, it is agreed that on such party giving notice and full particulars of such force majeure in
writing or by facsimile to the other party as soon as possible after the occurrence of the cause relied
upon, then the obligations of the party given such notice, to the extent it is affected by force
majeure and to the extent that due diligence is being used to resume performance at the earliest
practicable time, shall be suspended during the continuance of any inability so caused as to the
extent provided but for no longer period. Such cause shall as far as possible be remedied with all
reasonable dispatch.
13.02 The term "force majeure" as used herein, shall include, but not be limited to, acts
of God,strikes,lockouts,or other industrial disturbances,acts of the public enemy,war,blockades,
insurrections, riots,epidemics, landslides, lightning, earthquakes, fires, storms, floods,washouts,
droughts, tornadoes, hurricanes, arrests and restraints of government and people, explosions,
breakage or damage to machinery, equipment, pipelines or canals, and any other inabilities of
either party, whether similar to those enumerated or otherwise and not within the control of the
party claiming such inability,which by the exercise of due diligence and care such party could not
have avoided.
13.03 It is understood and agreed that the settlement of strikes or lockouts shall be entirely
within the discretion of the party having the difficulty, and the above requirement that any force
majeure be remedied with all reasonable dispatch shall not require the settlement of strikes or
lockouts by acceding to demands of the opposing party when such course is inadvisable in the
discretion of the party having the difficulty.
13.04 DISTRICT shall not be guaranteed any specific quantity or pressure of water
whenever BAWA's treated water supply is limited or when BAWA's equipment may become
inoperative due to unforeseen breakdown or scheduled maintenance and repairs, and BAWA is in
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no case to be held to any liability for failure to furnish any specific amount or pressure of water.
BAWA agrees that it will attempt to make any necessary repairs or adjustments to its equipment
within reasonable times mutually agreeable to both parties. It is further agreed that BAWA may,
without liability of default, interrupt its services hereunder to make necessary alterations to or
repairs in its facilities, but only if such interruption cannot otherwise reasonably be avoided.
BAWA shall schedule interruptions in advance after consultation with DISTRICT.
ARTICLE XIV
ADDRESS AND NOTICES
14.01 Until DISTRICT is otherwise notified in writing by BAWA,the address of BAWA
is and shall remain as follows:
Baytown Area Water Authority
Attn: General Manager
P.O. Box 424
Baytown,Texas 77522
Until BAWA is otherwise notified in writing by DISTRICT, the address of DISTRICT is
and shall remain as follows:
Lake Municipal Utility District
Attn: President
c/o Bacon&Wallace, L.L.P.
600 Jefferson, Suite 780
Houston, Texas 77002-7395
14.02 All written notices, statements, and payments required or permitted to be given
under this Contract from one party to the other shall be deemed given by telefax or the deposit in
a United States Postal Service mailbox or receptacle of certified or registered mail, with proper
postage affixed thereto,addressed to the respective other party at the address set forth above or at
such other address as the parties respectively shall designate by written notice.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.01 This contract shall bind and benefit the respective parties and their legal successors,
but shall not otherwise be assignable, in whole or in part, by either party without first obtaining
the written consent of the other; provided, however, that DISTRICT shall have the right, without
any consent of BAWA, to pledge or otherwise assign DISTRICT's rights hereunder to the extent
required by any mortgage, deed of trust or other similar agreement to which DISTRICT may be,
or hereafter become a party; provided that DISTRICT's successor or assignee,as the case may be,
is a responsible person or entity and shall (by operation of law or otherwise) expressly assume
DISTRICT's obligations hereunder; and provided, further, however,that no successor or assignee
12
of DISTRICT shall be entitled to receive water or sell water to a third party under this Contract
unless and until the City of Houston and the San Jacinto River Authority give their written consent
to such assignment.
15.02 This Contract shall be for the sole and exclusive benefit of BAWA and DISTRICT
and shall not be construed to confer any rights upon any third party, except as expressly provided
in Article X. BAWA shall never be subject to any liability in damages to any customer of
DISTRICT for any failure to perform under this Contract.
15.03 This Contract shall be subject to all present and future valid laws, orders,rules and
regulations of the United States of America and the State of Texas and of any regulatory body
having jurisdiction.
15.04 This instrument contains all the agreements made between the parties concerning
the sale and delivery of water by BAWA to DISTRICT at the Point of Delivery set out in this
Contract. This Contract supersedes any prior negotiations,agreements,or understandings relating
to the subject matters hereof.
15.05 The construction,interpretation and performance of this Contract shall be governed
by the laws of the State of Texas, and venue shall lie in Harris County, Texas.
15.06 All parties agree that should any provision of this Contract be determined to be
invalid or unenforceable,such determination shall not affect any other term of this Contract,which
shall continue in full force and effect. The parties agree that this Agreement shall not be construed
in favor of or against any party on the basis that the party did or did not author this Agreement.
15.07 Each party has the full power and authority to enter into and perform this Contract,
and the person signing this Contract on behalf of each party has been properly authorized and
empowered to enter into this Contract. The persons executing this Contract hereby represent that
they have authorization to sign on behalf of their respective entities.
15.08 The parties acknowledge that they have read,understand and intend to be bound by
the terms and conditions of this Contract.
[The remainder of this page is intentionally left blank]
13
IN WITNESS WHEREOF, the parties hereto have executed this contract as of the_day
of , 2023, in multiple copies, each of which shall be deemed to be an
original, but all of which shall constitute but one and the same contract.
BAYTOWN AREA WATER AUTHORITY
BRENDA BRADLEY-SMITH, President
ATTEST:
ANGELA JACKSON, Assistant Secretary
APPROVED AS TO FORM:
SCOT-I'LEMOND, General Counsel
LAKE MUNICIPAL UTILITY DISTRICT
r
Signature
Tinted Name
Title
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me, 4-\ ► "` o the undersigned net%ry public, on this day
personally appeared in leis/her capacity asTa-P_s1C1L of Lake
Municipal Utility District
--d`nown to me
proved to me on the oath of or
proved to me through his/her current
{description of identification card or other document issued by the federal
government or any state government that contains the photograph and signature of
the acknowledging person)
(check one)
14
to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me
that he/she executed that instrument for the purposes and consideration therein expressed. `
Given under my hand and seal of of I day of , 20W --
�F
Notary Public In and for the State of Texas
``"'"''� PENNY MCDONALD
_° :Notary Public,state of Texas My commission expires: �—
'• 'P= Comm. Expires 08-18-2024
•.... +.
�''n,O,F,. Notary ID 6477163
APPROVED TO CONFORMING TO
REQUIREMENTS OF CONTRACT
NO. 34739, SECTIONS 9.2 AND 9.3:
ARTURO G. MICHEL, City Attorney
CITY OF HOUSTON
RAKarenAndersonLC0NTRAC'rs%%%aterSupphC:ontract-Lal.ehltfl)2021 (Re% )doc\
15
EXHIBIT "A"
August 8, 1994
WATER SUPPLY CONTRACT BETWEEN
THE CITY OF HOUSTON AND
BAYTOWN AREA WATER AUTHORITY 34739
THE STATE OF TEXAS § �V_1 D 1 3
COUNTY OF HARRIS §
THIS CONTRACT (this "Contract") made and entered into by and between the City of
Houston, Texas a municipal corporation and home-rule city, which is principally situated and has
its City Hall in Harris County, Texas (hereinafter called "Seller"), and the Baytown Area Water
Authority, a governmental entity and a body politic and corporate which is situated and has its
principal office at Baytown, Harris County, Texas (hereinafter called "Buyer"),
WITNESSETH:
WHEREAS, Seller has the right under certain water permits to divert waters from the Trinity
River Basin, the Lake Livingston Reservoir, and the Wallisville Reservoir, and may acquire water
rights in other basins and reservoirs; and
WHEREAS, Seller has constructed and is constructing certain facilities to enable delivery
of the aforementioned water to Buyer at a single point of delivery and Buyer has constructed
certain facilities to enable Buyer to receive the aforementioned water, treat it so as to make it
potable, and distribute it; and
WHEREAS, Seller desires to sell large quantities of Untreated Water from such source or
sources to Buyer and Buyer intends to purchase its Untreated Water requirements from Seller for
treatment and resale; and
WHEREAS, Seller and Buyer have found, and do hereby find, that Seller and Buyer are
authorized by the Laws of the State of Texas to enter into contracts for the sale of water upon
such terms and for the period of time as are hereinafter set forth, and Seller and Buyer specifically
F'G02403`COH%CONTRACT%EW0101GG
contemplate the provisions of Tex. Rev. Civ. Stat. Ann. art. 4413(32c) and Tex. Loc. Gov't Code
Ann. 402.021, as they have been enacted to the date of this Contract, in making these findings;
and
WHEREAS,Seller has entered an amendatory contract with the San Jacinto River Authority,
which grants Seller conditional permission to sell water to Buyer upon payment to the San Jacinto
River Authority the sum of Fifty ($50.00) Dollars per day during the term of this Contract.
NOW,THEREFORE, for and in consideration of the premises and the mutual covenants and
agreements herein contained, the parties hereto do hereby mutually agree as follows:
ARTICLE I.
Definitions
As used in this Contract, the following terms are intended and used herein and shall be
construed to have meanings as follows:
(1) The term "Beginning Date" shall mean the date that Buyer begins receiving
Untreated Water from Seller under this Contract or the effective date hereof, whichever is
later. Such date may occur after the effective date of this Contract as defined in Article
Vlll. Provided, however,that if Buyer does not begin receiving Untreated Water within one
year of the effective date hereof, Seller shall be under no further obligation to supply Buyer
with Untreated Water.
(2) The term "Buyer's Facilities" shall mean facilities constructed by Buyer to enable
Buyer to receive Untreated Water.
(3) The term"Contract Quantity" shall mean the maximum quantity of Untreated Water
that the Seller agrees to reserve and sell to Buyer pursuant to Section 2.1 herein.
(4) The term "Contract Term" is defined in Article Vlll.
(5) The term "Director" shall mean the Director of the Department of Public Works and
Engineering of the City of Houston or any successor department and all persons designated
by the Director to administer the sale and delivery of Untreated Water to Buyer.
FAW24031COMMONTRAMEW610188 -2-
(6) The term "MGD" is an abbreviation for million gallons of water per day. As used
in this Contract, "MGD" refers to a quantity of water during a period of time expressed for
convenience in terms of an average daily quantity during a calendar month (unless a
different period of time is specified). The volume of two MGD for a calendar month, for
example, is calculated as follows: Two million gallons multiplied by the number of days in
such calendar month.
(7) The term"Point of Delivery" shall mean the location, in Texas coordinates, to which
Seller agrees to deliver Untreated Water to Buyer more particularly described in Exhibit "A"
attached hereto and incorporated herein for all purposes.
(8) The term "Point of Measurement" shall mean the location, in Texas coordinates, of
the meter at which Buyer's consumption of water is measured more particularly described
in Exhibit "A" attached hereto and incorporated herein for all purposes.
(9) The term "Surface Water Source" shall mean those water rights in reservoirs,
basins, and other facilities now owned or hereinafter acquired by Seller and shall be
modified by any water rights hereinafter acquired or deleted at the sole discretion of the
Seller.
(10) The term "Surface Water System" shall mean all facilities and Surface Water
Sources now owned or hereinafter acquired or constructed by Seller for the purpose of
supplying Untreated Water.
01) The term "Surface Water System Costs" shall mean all costs budgeted for
expenditure by Seller in Seller's annual budget as approved by Seller's governing body or
actually incurred by Seller in acquiring, constructing, financing, administrating, operating,
and maintaining the Surface Water System and a reasonable allowance for depreciation and
replacement of the Surface Water System.
112) The term "TNRCC" shall mean the Texas Natural Resource Conservation
Commission and its successor.
FAGD240=0M1CONTRAMEW810188 -3-
(13) The term "Untreated Water" shall mean water supplied to Buyer from basins and
reservoirs, whatever the source, which has not been treated in any manner.
ARTICLE II.
Sale and Delivery of Water
2.1 Subject to the terms and conditions of this Contract,during the Contract Term Seller
hereby agrees to sell and deliver to Buyer and Buyer agrees to purchase from Seller Untreated
Water at the Point of Delivery shown in attached Exhibit "A" at daily rates of delivery as may be
needed by Buyer; provided, however, that under no circumstances shall the Seller be obligated to
deliver to Buyer Untreated Water in excess of the Contract Quantity of 11.9 MGD.
2.2 Buyer agrees to purchase at least 90% of its water requirements from Seller as
required under the Code of Ordinances. Any change to the location or existing connection facilities
must be approved both by Buyer and the Director.
2.3 Regardless of the Surface Water Source as defined by the Seller at any time,
Untreated Water may be delivered to Buyer from any source or combination of sources available
to the Seller.
2.4 Untreated Water delivered by Seller to Buyer shall be used only for municipal
purposes (as such term is defined by the TNRCC in its rules), and such Untreated Water shall be
used only within Buyer's service area shown on Exhibit "B."
2.5 If Buyer wishes to reserve for itself additional monthly quantities of Untreated
Water, Buyer must notify Seller in writing of Buyer's desire to do so. The Director may, at its
discretion after considering the Untreated Water requirements of the Seller and its obligations and
commitments, increase the quantity of Untreated Water supplied to Buyer;provided, however,that
Seller shall be under no obligation to deliver Untreated Water in excess of the Contract Quantity.
Seller may, at its discretion, discontinue delivery of such additional monthly requirements of
Untreated Water by giving Buyer 30 days written notice.
FAM24MCOMCONTRACTIEW810166 -4-
ARTICLE III.
Rates and Prices
3.1 (a) The charge for all Untreated Water sold and delivered by Seller to Buyer shall
be calculated in accordance with the rates for untreated water customers as set forth in Article
II, Division 2, entitled "Untreated Water," of Chapter 47 of the Code of Ordinances of the City of
Houston, as amended, and as such provisions may be amended in the future, incorporated by
reference as fully and completely as if copied herein in full.
(b) Billing at the rate for Untreated Water shall not commence until the Beginning Date
of service on or after the effective date of this Contract.
(c) Whenever Buyer's consumption shall exceed the Contract Quantity by 10%, a 5%
surcharge shall be charged against that portion of the consumption that exceeds the Contract
Quantity. Provided, however, this surcharge shall not apply to any increase in the quantity of
Untreated Water granted by the Director under Section 2.5.
3.2 Additionally, Buyer understands and agrees that Seller may at any time by ordinance
duly enacted, increase or change the price or prices for Untreated Water as set forth in the Code
of Ordinances.
3.3 Buyer recognizes Seller owns and operates an extensive surface water system and
will continue to add capacity to such system by acquisition and construction of new facilities and
water rights and agrees that the cost of providing Untreated Water shall be recalculated
periodically by Seller, taking into account all Surface Water System Costs, regardless of the point
of delivery.
FAGD2301COMCONTRACTIEWB10166 -5-
ARTICLE IV.
Reoorts
Within thirty days after the end of each quarterly period during the term of this Contract,
Buyer shall furnish Seller with a statement under oath showing the quantities and sources of all
water (1) used or sold by Buyer to its customers and (2) all Untreated Water received from Seller
during such quarterly period.
ARTICLE V.
Measurina Eouioment
5.1 All measuring equipment shall be owned by Seller, even when purchased by Buyer,
and shall be located at The Point of Measurement as shown on Exhibit "A".
5.2 During all reasonable hours, Seller, Buyer and the Coastal Water Authority of Texas
shall have access to the measuring equipment. Buyer may have access to all records pertinent to
determining the measurement and quantity of Untreated Water actually delivered hereunder, but
the reading of the measuring equipment for purposes of billing shall be done by Seller.
5.3 Seller shall maintain the measuring equipment within the accuracy tolerance
specified in Section 5.4 by periodic tests. Seller shall conduct such tests at least once every
twelve (12) months and shall notify Buyer at least forty-eight(48)hours in advance of the time and
location at which tests are to be made. Seller agrees to properly test said measuring equipment
at Seller's cost when requested to do so by Buyer once every twelve (12) months. If Buyer
requests an additional test within twelve (12) months, Seller shall charge Buyer an amount equal
to Seller's cost to perform such test unless the test reveals that the equipment registers one
hundred and two 002%) percent or more for a given flow rate. In addition, Buyer shall have the
right to independently check,at its own cost, said measuring equipment at any time upon 48 hours
notification to the Director and opportunity for the Director to witness such tests.
f:lOD2403%COH%CDNTRACTIEWB10186 -6-
5.4 Should the test of the measuring equipment in question show that the equipment
registers either more than one hundred two percent (102%) or less than ninety-five percent(95%)
of the water delivered for a given flow rate, the total quantity of Untreated Water delivered to
Buyer will be deemed to be the average daily consumption as measured by the measuring
equipment when in working order, and the meter shall be calibrated to the manufacturer's
specifications (in the case of Venturi meters) or the AWWA specifications (for all other types of
meters) for the given rate of flow, or replaced by Seller with accurate measuring equipment that
is tested before it is placed in service. This adjustment shall be for a period extending back to the
time when the inaccuracy began, if such time is ascertainable; and if such time is not
ascertainable, for a period extending back to the last test of the measuring equipment or one
hundred twenty 0 20) days, whichever is shorter.
As used in this paragraph, the expression "given rate of flow" means one of the following
selected by the Director for each calibration or test:
1) the total quantity of Untreated Water delivered during the preceding
period (usually a calendar month) as reflected by the totalizer, converted to gallons
per minute;
2) high, low, and intermediate rates of flow in the flow range, as
reflected by the flow recording devices;
3) the applicable Contract Quantity for the current period, usually a
calendar month, converted to gallons per minute; or
4) AWWA-specified test flow rates for that size and type of meter.
5.5 In the event of dispute between Seller and Buyer as to the accuracy of the testing
equipment used by the Seller to conduct the accuracy test, an independent check may be mutually
agreed upon between Buyer and Seller to be conducted by an independent measuring equipment
company suitable to both Buyer and the Director. The cost of such test will be at Buyer's sole
expense.
F;%GD240MCOH%CONTRACT%E WB 10166 -7-
5.6 Buyer may install, at its own cost and expense, such check meters in Buyer's pipe
line or canal as may be deemed appropriate, but Seller shall have the right of ingress and egress
to such check meters during all reasonable hours; provided, however, that billing computations
shall be on the basis of the results of the measuring equipment set forth above.
ARTICLE VI.
Billing and Payment
6.1 As used in this Article VI, the tern 'day' shall mean a period of twenty-four
consecutive hours beginning at a mutually agreed-upon time on one calendar day and ending at
the same time on the next succeeding calendar day, and the term 'month' shall mean a period
beginning at a mutually agreed-upon time on the first day of a calendar month and ending at the
same time on the first day on the next succeeding calendar month.
6.2 The measuring equipment shall be read on the day at the end of each month (or at
such other period of frequency arranged between the parties)and at a mutually agreed upon time,
or as near thereto as practicable.
6.3 The quantity of Untreated Water for which payment is due by Buyer hereunder in
any month shall be the total quantity of Untreated Water delivered to Buyer in such month as
determined by the measuring equipment described in Article V hereof.
6.4 Seller shall bill Buyer at Buyer's address within ten days after the read date by a
statement showing the quantity of Untreated Water used during the preceding month. Payment
shall be due and payable to Seller at its offices in Houston, Harris County, Texas,on or before the
twentieth day after receipt of such statement.
6.5 Should Buyer fail to tender payment of any amount when due, interest thereon shall
accrue at the rate of ten percent per annum from the date when due until paid and Buyer shall be
deemed to be in default.
k%ac240=OMCGNTMCMVA1o1ee -8-
ARTICLE VII.
Title to and Responsibility for Water
7.1 As between Buyer and Seller, Seller shall be in exclusive control and possession of,
and solely responsible for, all Untreated Water deliverable hereunder and solely responsible for any
damage or injury caused thereby until the same shall pass through the Point of Delivery and
thereafter, Buyer shall be in exclusive control and possession thereof and solely responsible for any
injury or damage caused thereby.
7.2 SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE
QUALITY OR DELIVERY PRESSURE OF UNTREATED WATER, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.3 With respect to all water handling facilities located between the Point of Delivery
and Point of Measurement, Buyer and Seller specifically agree:
1} that all such facilities, other than the measurement equipment itself, shall be and
remain the property of Buyer, subject to the terms of this Contract;
21 that Buyer shall take all reasonable steps to maintain such facilities and to prevent
leaks or discharges from such facilities;
3) that Buyer shall repair any such leak or discharge at once upon receiving notice
thereof and pay Seller the price of any water lost by reason of such a leak or
discharge;
4) that Buyer shall correct or repair any damage caused by any such leak or discharge
and shall hold Seller harmless from and against any such damage and claims
therefore;
5) that Buyer shall alter or relocate, at its sole cost, any such facilities whenever Seller
shall reasonably request in writing that the same be done; and
f:1GD21031COH1CONTRACT1EW810188 -9-
6) that Buyer shall promptly remove such facilities and restore their locations to their
pre-existing conditions whenever this Contract is no longer in effect and the Seller
so requests.
ARTICLE Vill.
Term
This Contract shall be in force and effect beginning on the date of countersignature shown
below until December 31, 2020 at 8:00 a.m.
ARTICLE IX.
Performance by Seller and Buyer
9.1 Seller covenants and agrees that it will not contract for the sale of Untreated Water
to other users to such an extent or for such quantities as to impair Seller's ability to perform fully
and punctually its obligations to Buyer under this Contract. In case of temporary shortage of
water, notwithstanding Seller's compliance with the provisions of this Article IX, Seller shall
distribute the available supply as provided by the laws of the State of Texas, particularly Section
11 .039 (a) of the Texas Water Code, as amended.
9.2 Pursuant to the Amendatory Contract entered by Seller and the San Jacinto River
Authority, a copy of which is attached hereto as Exhibit "C" and incorporated herein for all
purposes, and notwithstanding any other provision of this Contract to the contrary, Buyer
covenants and agrees that it takes the Untreated Water under this Contract from Seller for the
limited purpose of treating and selling the same as potable treated water to the City of Baytown
and other local governmental entities; such water to be used for municipal purposes (as such term
is defined by TNRCC Rules) and for no other purposes, and such treated Water shall be sold,
distributed or used only for residential household and other strictly municipal purposes within the
area shown in Exhibit "B." No extension of these boundaries may be made by Buyer without the
written consent of the San Jacinto River Authority and Seller. Buyer agrees to include covenants
similar to those contained in this Section 9.2 in any sales or contracts for sale of water by Buyer
paGD2403kCOMtCONTRACTIEWB10166 -1 0-
to any other entity. Buyer agrees to submit the wording of such covenants for the written
approval of Seller prior to entering into such contracts.
9.3 Buyer understands and agrees that either Seller or the San Jacinto River Authority,
or both, may enforce the covenants contained in Section 9.2 herein by an action brought directly
against Buyer. In the event that Seller maintains any legal proceeding to enforce such covenants,
Buyer agrees to indemnify Seller in the amount of all expenses relating to the legal proceeding,
including, but not limited to, costs of court and reasonable attorney's fees.
9.4 Buyer acknowledges that Seller may be liable to the San Jacinto River Authority for
monetary damages in the event that Buyer (or any purchaser of water from or through Buyer) fails
to comply with the restrictions and limitations on the sale of water set out in Section 9.2 herein.
Buyer acknowledges that such monetary damages would amount to seventy-five percent (75%)
of the consideration or revenue received by Seller for the estimated amount of water distributed,
sold, or used in violation of such restrictions or limitations, plus all litigation expenses, reasonable
attorney fees, and all other remedies available to the San Jacinto River Authority. Buyer hereby
agrees to fully indemnify and save Seller harmless from and against any such expenses and liability
which Seller might incur, or any loss Seller might suffer, as a result of any failure by Buyer, or any
purchaser of water from or through Buyer,to comply with such restrictions and limitations. Buyer
further agrees to include covenants in any sales or contracts for sale of water by Buyer to any
other entity to insure that said other entity will likewise indemnify and save Seller harmless. Buyer
agrees to submit the wording of such covenants for the approval of Seller prior to entering into
such contracts.
9.5 Buyer agrees to maintain, at its sole expense, its water wells, if any, in good repair
and working order to facilitate the use of such water wells as an emergency source of supply, if
required, should Seller be unable to deliver the Contract Quantity of Untreated Water for any
reason. Buyer shall bear all costs of maintaining and supplying such emergency sources of supply.
FAGD24031COMC0NTPAMEW610166 -1 1-
ARTICLE X.
Environmental Considerations
10.1 On or before the first anniversary of the effective date of this Contract, Buyer shall
approve and implement and throughout the term hereof remain in full compliance with a water
conservation program in accordance with requirements of the TNRCC. Such plan (and any
amendments thereto) shall be submitted to the appropriate authority as required by state law for
review and approval. In the event that the TNRCC adopts new requirements, Buyer shall adopt
an amended plan and submit same to the appropriate authority for review and approval.
10.2 Buyer agrees that in the event that Buyer furnishes or sells water or water services
to a third party that in turn will furnish water to the ultimate consumer, the requirements of this
Contract relative to water conservation shall be met through contractual agreements between the
Buyer and the third party, providing for the implementation and continued compliance with a water
conservation program consistent with the requirements of the TNRCC.
ARTICLE XI.
Remedies Uoon Default
11.1 In the event of any default by Buyer in the performance of any of Buyer's obligations
hereunder which shall continue for a period of thirty days or more, the Seller shall give written
notice to Buyer specifying the matter with respect to which Buyer is in default and requesting that
the default be remedied with promptness and dispatch. In the event Buyer, within forty-five days
after the mailing of such notice by Seller, has failed to remedy the matter in default, Seller may
suspend further delivery of Untreated Water to Buyer hereunder; and in the event such default on
the part of Buyer continues for an additional thirty days, Seller may, by an additional written notice
to Buyer, cancel and terminate this Contract, whereupon all rights of Buyer and all obligations of
Seller hereunder shall terminate and be at an end. The exercise of such rights shall be in addition
to any other remedies available to Seller under the laws of the State of Texas.
FAGD24031COMCONTRAME W 8101 66 -1 2-
11.2 The failure of either party to insist in anyone or more instances upon performance
of any of the terms, covenants or conditions of this Contract shall not be construed as a waiver
or relinquishment of the future performance of any such term, covenant or condition by the other
party hereto, but the obligation of such party with respect to future performance shall continue in
full force and effect.
ARTICLE XII.
Force Maieure
12.1 In the event either party is rendered unable, wholly or in part, by force majeure, to
carry out any of its obligations under this Contract, or in the event Buyer is rendered unable,
wholly or in part, by force majeure to operate Buyer's Facilities, it is agreed that on such party's
giving notice and full particulars of such force majeure in writing or by telefax or telegraph to the
other party as soon as possible after occurrence of the cause relied upon, then the obligations of
the party giving such notice, to the extent it is affected by force majeure and to the extent that
due diligence is being used to resume performance at the earliest practicable time, shall be
suspended during the continuance of any inability so caused as to the extent provided, but for no
longer period. Such cause shall as far as possible be remedied with all reasonable dispatch.
12.2 The term "force majeure", as used herein, shall include, but not be limited to, acts
of God,strikes, lockouts or other industrial disturbances, acts of the public enemy, war, blockades,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, storms, floods, washouts,
droughts, tornadoes, hurricanes, arrests and restraints of government and people, explosions,
breakage or damage to machinery, equipment pipelines or canals and any other inabilities of either
party, whether similar to those enumerated or otherwise and not within the control of the party
claiming such inability, which by the exercise of due diligence and care such party could not have
avoided.
12.3 It is understood and agreed that the settlement of strikes or lockouts shall be
entirely within the discretion of the party having the difficulty and the above requirement that any
F-.%W24MCOM%CONMC'nEW810188 -1 3-
force majeure be remedied with all reasonable dispatch shall not require the settlement of strikes
or lockouts by acceding to the demands of the opposing party when such course is inadvisable in
the discretion of the party having the difficulty.
12.4 It is understood and agreed that Seller receives its supply of water from others, and
such water must be transported over long distances before it is received by Seller. Accordingly,
it is agreed that stoppage or diminution of the water received by the Seller from one or more of
its Surface Water Sources (other than by reason of the Seller's failure to make payments due to
its suppliers) shall be deemed a force majeure, and that the Seller cannot and does not guarantee
constant availability of water hereunder but does agree to use its best efforts to maintain such
availability. It is further agreed that the Seller may, without liability or default, interrupt its service
hereunder to make necessary alterations to or repairs in its facilities, but only if such interruption
cannot otherwise reasonably be avoided. The Seller shall give reasonable prior notice of any such
interruption to Buyer and, to the extent possible, the Seller shall schedule interruptions in advance
after consultation with Buyer.
ARTICLE XIII.
Addresses and Notices
13.1 Until Buyer is otherwise notified in writing by Seller, the address of Seller is and
shall remain as follows:
City of Houston Utility Customer Service Division
Contract Water Accounting Section
P. 0. Box 1560
Houston, Texas 77251
Until Seller is otherwise notified in writing by Buyer, the address of Buyer is and shall remain as
follows:
Baytown Area Water Authority
P.O. Box 424
Baytown, Texas 77522-0424
F:1O024031CONTONTRACTIEW 610188 -14-
13.2 All written notices required or permitted to be given under this Contract from one
party to the other shall be deemed given by telefax or the deposit of certified or registered mail in
a United States Postal Service mail box or receptacle, with proper postage affixed thereto and
addressed to the respective other party at the address set forth above or at such other address as
the parties respectively shall designate by written notice.
ARTICLE XIV.
Miscellaneous Provisions
14.1 This Contract shall bind and benefit the respective parties and their legal successors,
but shall not otherwise be assignable, in whole or in part, by either party without first obtaining
the written consent of the other; provided, however, that Buyer shall have the right, without any
consent of Seller, to pledge or otherwise assign Buyer's rights hereunder to the extent required by
any mortgage, deed of trust or other similar agreement to which Buyer may now be, or hereafter
become, a party or to otherwise assign Buyer's rights and obligations hereunder in connection with
any merger or consolidation or any sale of all or substantially all of Buyer's facilities, provided that
Buyer's successor or assignee, as the case may be, is a responsible person and shall (by operation
of law or otherwise) expressly assume Buyer's obligations hereunder; and provided, further,
however, that no successor or assignee of Buyer shall be entitled to receive Untreated Water or
sell such Untreated Water to a third party under this Contract unless and until the San Jacinto
River Authority gives its written consent to such assignment.
14.2 This Contract shall be for the sole and exclusive benefit of Buyer and Seller and shall
not be construed to confer any rights upon any third party. Seller shall never be subject to any
liability in damages to any customer of Buyer for any failure to perform under this Contract.
14.3 This Contract shall be subject to all present and future valid laws, orders, rules and
regulations of the United States of America, the State of Texas and of any regulatory body having
jurisdiction.
FAW24091C0111CONTRACTAW810188 -1 5J-
14.4 This instrument contains all the agreements made between the parties concerning
the sale and delivery of Untreated Water by the Seller to the Buyer at the Point of Delivery set out
in this Contract.
14.5 With respect to any prior agreements between the parties or their predecessors for
the sale of Untreated Water to Buyer at any Point of Delivery hereunder, the future obligations of
both parties to perform under any such prior agreement are terminated effective as of the effective
date hereof, except as follows:
Any obligations which arise prior to such effective date, including
specifically the obligations of Buyer to pay money to Seller for time
periods or deliveries prior to such effective date, are not terminated.
FAGO2403%COMlCONTRACT M10166 -16-
IN WITNESS WHEREOF, the parties hereto to have signed this Contract in multiple copies,
each of which shall be deemed to be an original, but all of which shall constitute but one and the
same contract, as of the date of countersignature.
ATTEST: CI Y OF iOUSTON, TEXAS
e C
2
City Secretary Mayor
ATTEST: BAYTOWN AREA WATER AUTHORITY
BAYTOWN, HARRIS COUNTY, TEXAS
(Buyer)
Titlo: Secreta►v Title: President
COUNTERSIG D B
A
City ontroll r
APPROVED AS TO FO M: DAT OF C UNTER IGNATURE:
Sr. Assistant City Attorney
APPROVED:
ZtDV4ktor, Department of t V- r —k�
Pu lic Works & Engineering
a: GDZS01COH•CONTRACT.EW810166 17•
APPROVED AS TO CONFORMITY WITH PARAGRAPH 2 OF THE CONTRACT
BETWEEN THE CITY OF HOUSTON AND THE SAN JACINTO RIVER
AUTHORITY DATED JUNE 22, 1976:
SAN JACINTO RIVER AUTHORITY
By: &vt� //�� ,.,CrP
General Manager
Date: 3 ?
F:1GD24031C0H%C0NTRACT%EW610166 -1 8-
BUYER'S ACKNOWLEDGMENT
THE STATE OF TEXAS §
COUNTY OF HARRIS §
This instrument was acknowledged before me on
R-17-94 by Robert L. Gillette,
(date) (name)
President of Baytown Area Water Authority.
Notary Public in and for the
l►�'O� State of Texas
of�E+P�r + Commission Expires: October 31, 1994
r ' RES
f:10D24031C0H%C0NTMCnEWB10186 -1 9-
WATER SUPPLY CONTRACT
CITY OF HOUSTON
BAYTOWN AREA WATER AUTHORITY
TABLE OF CONTENTS
ARTICLE I. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II. Sale and Delivery of Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III. Rates and Prices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLEIV. Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE V. Measuring Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VI. Billing and Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE VII. Title to and Responsibility for Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE Vill. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IX. Performance by Seller and Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE X. Environmental Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE XI. Remedies Upon Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE XII. Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE XIII. Addresses and Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE XIV. Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
F1G024031COWCONTRAMEW610188 +
E)CMrr "A"
Point of delivery to the Baytown Area Water Authority:
Approximate Texas coordinates:
North East x=3,258,560 y=738,120
South East x=3,258,560 y=735,840
South West x=3,255,730 y=735,890
+w�
'�hor
BAYTOWN AREA
WATER AUTHORITY ME
PLANT i MAR L
A.
l
B T W
Ram
TAW W JJ
OLD SERVICE AREA I
ADDED SERVICE AREA
EXHIBIT B
EMBIT B BAYTOWN AREA WATER A
THORITY SERVICE AREA
AMENDATORY CONTRACT BETWEEN
SAN JACINTO RIVER AUTHORITY
AND
THE CITY OF HOUSTON, TEXAS
THE STATE OF TEXAS X
X
COUNTY OF HARRIS
THIS CONTRACT executed as of the—:U w day of
1976, by and between the SAN JACINTO RIVER AUTHORITY, ("SJRA") a
conservation and reclamation district and political subdivision
of the State of Texas, and the CITY OF HOUSTON. TEXAS, ("the City")
a municipal corporation:
1.
The provisions of Section VII of the contract between the
parties dated March 27, 1944, shall have no application to sales
of Trinity River raw water by the City to the Baytown Area Water
Authority ("BAWA") , a municipal corporation created by Ch. 600,
p. 641. Sixty-Third legislature, Regular Session, 1973. for the
limited purpose of treating and selling the same as potable treated
water to the City of Baytown and other local governmental entities
for distribution through the municipal water systems of such local
governmental entities, such water to be used for municipal purposes.
as defined by Rule 129.01.15001-.041. promulgated by the Texas
Water Rights Commission on December 1, 1975. and for no other pur-
poses, and only within the boundaries of BAWA as such boundaries
exist on the date of this contract; PROVIDED, that no such water
shall be sold. distributed or used other than for residential
household and other strictly domestic purposes within the area
bounded by Interstate Highway No. 10 on the north, Sjolander Road
^n the west. t.rchar Road ono the south, and Cedar Bayou on the east,
without written consent of SJRA.
2.
The City shall insure that all instruments relating
to the sale of water to BAWA include appropriate covenants on
EXHIBIT C
the part of BAWA to observe the limitations and restrictions
imposed on the City by the contract dated March 27, 1944, as
modified by this contract, and to include covenants in all
sales and contracts for the sale of water by BAWA insuring
compliance with such restrictions and limitations. The word-
ing of the covenants giving effect to such restrictions and
limitations shall be submitted to the General Manager of the
SJRA for approval as to conformity to this paragraph prior to
any sale by the City subject to this contract. The City shall
be responsible for the enforcement of such covenants, but they
shall also be enforceable by SJRA directly.
3.
In the event any water delivered by the City to BAWA
under this contract is used in violation of such restrictions
or limitations, SJRA shall be entitled to recover from the
City as liquidated damages an amount equal to seventy-five
percent (75%) of the consideration or revenue received by the
City for the estimated amount distributed, sold or used in
violation of such restrictions or limitations, plus all liti-
gation expenses and reasonable attorney's fees. The recovery
of such liquidated damages shall be in addition to all other
remedies available to SJRA.
4.
In consideration of the foregoing limited waiver by
SJPA of the restrictions and limitations imposed by the
contract dated March 27. 1944. the City shall pay to the SJRA
an amount equal to $50 per day during such period that the
City receives payment from BAWA for water sold under this
waiver, but su=h paytnonts to SJRA s'noil not extend beyond a
period of 20 years. Payment shall be made on a quarterly basis
on or before the loth day of the month following each calendar
quarter.
-2-
5.
The contract shall not be assignable by either party
without the written consent of the other; however the obligations
imposed hereunder shall be binding on their successors or assigns.
The waiver provided herein shall be applicable only to sales by
the City to BAWA and shall not be applicable to any sale by
the City to any other entity, including any successors or assignee
entity to BAWA, without the written consent of SJRA.
6.
Except as amended by this contract and the contracts
between the parties dated July 19, 1955. "fay 9, 1968 and the
contract dated September 1, 1971, the provisions of the March
27, 1944, contract shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto, acting under the
authority of their respective governing bodies have caused this
contract to be executed on this ;?: >� day of 1976
in duplicate originals, each of which shall constitute an original
SAN JACINTO RIVER AUTHORITY
ATTEST:
BYat//c c..E 15�s.e1Y� Vice-Pre
By_ t ent
secretary
CITY OF HOUSTON ,
ATTEST: By
:ay r
By
City Secretary
COUNTERSIGNED:
�i
C—sty Controller
APPROVED A
City Attorney
City n
-3-
EXHIBIT "B"
CONTRACT AMENDMENT
o�-- � � -�
This CONTRACT AMENDMENT ("the Amendment") is made and entered
into by and between the City of Houston, Texas a municipal corporation and home-rule
City, which is principally situated and has its City Hall in Harris County, Texas ("City"),
and the Baytown Area Water Authority, a governmental entity and body politic and
corporate, which is situated and has its principal office at Baytown, Harris County, Texas
("Authority").
WITNESSETH
WHEREAS, the City and the Authority entered into the Water Supply Contract
on or about October 24, 1994; and
WHEREAS, the Authority desires to extend the term of the Contract and increase
the Contract Quantity; and
WHEREAS, the City is agreeable to these changes;
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants and agreements herein contained, the parties hereby agree as follows:
I.
Section 2.1 of the Water Supply Contract is amended by increasing the Contract
Quantity (as defined therein) to 15.8 million gallons per day.
it.
Article VIII of the Water Supply Contract is amended by extending the
termination date to December 31, 2040.
'Bdc2'.1itigation'-Karcn%fdcs%Contracts'•BAWA Contract Wwth City of Houston+BAY'l OWNClcan DOC
1 1113.2004
M.
The Director of Public Works and Engineering ("Director") is authorized to
reduce the Contract Quantity upon 30 days' notice to the Authority as follows:
If the Authority has failed to take at least 25%of the Contract Quantity for
each of 18 consecutive months, the Director may decrease the Contract
Quantity to the average monthly consumption by the Authority during the
latest 18 month period. In calculating the 18 month period, the Director
shall disregard any month where a force majeure prevented the Authority
from taking at least 25%of the Contract Quantity.
Iv.
The Water Supply Contract and this Amendment are the entire agreement of the
parties. In the event of any conflict between a provision of the Water Supply Contract
and this Amendment,the provision of this Amendment shall control.
WjddUidpdonW.m=WilalConuacts\BAWA Contract with City of Houuon\BAYTOWNC1ean.DOC
2 1 1/3/2t0{
IN WITNESS WHEREOF, the parties hereto have signed this Amendment in
multiple copies each of which shall be deemed to be an original, but all of which shall
constitute but one and the same contract, as of the date of countersignature.
BAYTOWN AREA WATER AUTHORITY CITY OF HOUSTON,TEXAS
BAYTOWN,HARRIS COUNTY,TEXAS ("City")
("Buyer")
ROBERT L. GILLETTE ayor
President
ATTEST: AT T:
� —
G,R W. SMiTH City Secretary
,'.ssistant Secretary
APPROVED AS TO FORM: APPROVED:
elr?N
ACIO RAMIREZ, Se Director, Department of Public
General Counsel Works and Engineering „w
4APPROVIAS TO FORM:
Sr. Assistant City Attorney
UNTERSIGNATURE:
� e
Contr 1 r
COUNTERSIGNATURE DATE:
113101
\IBdc2�litigationNKarcn\Filcs\ContmctslBAWA Contract with City of Houston BAITOWNCIcan.DOC
3 111312004
BUYER'S ACKNOWLEDGMENT
THE STATE OF TEXAS §
§
COUNTY OF HARRIS §
This instrument was acknowledged before me on November 4- M4
(date)
by Robert L. Gillette , President of Baytown Area
(name)
Water Authority.
t
Egs
GU R
of TexasNotary blic in d fo e
State of Texas
s ii)Z,2005
L,--- Commission Expires: October 25, 2005
WMc2VitigationW.a=\FilcslContracts\BAWA Contract with City of HoustoMBAYTOWNCIcan.DOC
4 11/3/2004
3473o?
SECOND CONTRACT AMENDMENT 07, 0913
UNTREATED WATER SUPPLY CONTRACT
THIS SECOND CONTRACT AMENDMENT is made and entered into by and between the
CITY OF HOUSTON, TEXAS ("Seller") and the BAYTOWN AREA WATER AUTHORITY
("Buyer").
WITNESSETH:
WHEREAS, the Seller and the Buyer entered into Contract No. 34739 on or about October 24,
1994 for the purchase of untreated water("Untreated Water Contract"); and
WHEREAS, the Seller and the Buyer entered into the Amendment ("Amendment") to the
Untreated Water Contract on or about January 3, 2005; and
WHEREAS, the Buyer desires to change its Contract Quantity from 15.8 million gallons per
day to 20 million gallons per day; and
WHEREAS, the Seller is agreeable to changing the Contract Quantity;
NOW,THEREFORE, for and in consideration of the premises and mutual covenants and
agreements herein contained, the parties agree as follows:
I.
Article I of the Amendment is amended such that the Contract Quantity is increased to 20
million gallons per day.
fI.
The Untreated Water Contract, the Amendment and this Second Amendment are the entire
agreement of the parties. In the event of any conflict between or among these documents, the
provisions of the latest Amendment shall control.
R%Karcn,FdcsrBAWA'City of Mauston Contract Approial BAYTOWv2.DOC 1
10/18/2006
IN WITNESS WHEREOF, the Parties have signed this Second Amendment in multiple
copies, each of which shall be deemed an original, but all of which shall constitute but one and the
same contract, as of the date of countersignature.
CITY OF HOUSTON,TEXAS BAYTOWN AREA WATER AUTHORITY
("City") BAYTOWN,HARRIS COUNTY,TEXAS
("Buyer")
By: By:
Mayor Name: Robert L. Gillette
Title: Title: President
,EST/SEAL: ATTEST/SEAL:
By:
Cit; Secretary Name: Peter R. Buenz
Title: Secretary
APPROVED:
Director, Department of Public Works
and Engineering
APPROVED S TO FORM:
<! c G
Sr. Assistant City Attorney
L.D. File No. 0800100213-003
UNTERSIGNED:
City Controller �-
DATE OF COUNTERSIGNATURE:
R:\Karcn\Files\BAWAWny of Houston Contract Approval BAYTOWN2 DOC 2
10.181006
BUYFR'S ACKNOWLEDGMENT
THE STATE OF TEXAS §
§
tUOUNTY OF HARRIS §
This instrument was acknowledged before me on . - November 16.E 2006
(date)
by ` Robert L. Gillette , President of Baytown Area Water
(name)
Authority.
otary ublic in nd for t e
State of Texas
rJ'' ,IATbA :'ryQ�
Commission Expires: 10-25-2009
+�urtonnm
R%Karcn`.Fdcs�3AWA%Cny of Houston Contract Approval%BANTOWN2.DOC 3
10/18/2006
oa^n ri nntr-.n.-In
11fln 0 LVIV r1w.10
THIRD CONTRACT AMENDMENT
TO THE UNTREATED WATER SUPPLY CONTRACT
THIS THIRD CONTRACT AMENDMENT TO THE UNTREATED WATER SUPPLY
CONTRACT ("Third Amendment") is made and entered into by and between the CITY OF
HOUSTON,TEXAS("Seller"),and the BAYTOWN AREA WATER AUTHORITY('Buyer").
WITNESSETH
WHEREAS, Seller and Buyer entered into Contract No. 34739 on or about October 24,
1994,for the purchase of untreated water("Untreated Water Supply Contract");and
WHEREAS, Seller and Buyer entered into a Contract Amendment to the Untreated Water
Supply Contract on or about January 3,2005 ("First Amendment");and
WHEREAS, Seller and Buyer entered into the Second Contract Amendment to the Untreated
Water Supply Contract on or about February 28,2007("Second Amendment");and
WHEREAS, Buyer desires to add an additional point of delivery for its proposed east water
plant location and to increase the Contract Quantity by 6 million gallons per day ("MGD"), to be
delivered to said point of delivery; and
WHEREAS, Seller is agreeable to adding an additional point of delivery and increasing the
Contract Quantity by 6 MGD,to be delivered to said point of delivery;and
NOW, THEREFORE, for and in consideration of the premises and mutual covenants and
agreements herein contained,the parties hereby agree as follows:
I.
The definition of the "Point of Delivery" is hereby amended to include the additional
location, in Texas coordinates, to which Seller agrees to deliver Untreated Water to Buyer as more
particularly described in Exhibit "A-1," which is attached hereto and incorporated herein for all
intents and purposes.
Third Contract Amendment to the Untreated Water Supply Contract,Page 1
Il.
The definition of the "Point of Measurement" is hereby amended to include the additional
location of the meter(s) at which Buyer's consumption of water is measured and which is more
particularly described in Exhibit"A-1."
III.
Section 2.1 of the Untreated Water Supply Contract is hereby amended to increase the
Contract Quantity (as deemed therein) to 26 MGD, which shall be delivered by Seller to Buyer as
follows: 20 MGD at the Point of Delivery shown in Exhibit "A,"which is attached to the Untreated
Water Supply Contract,and 6 MGD at the Point of Delivery shown in Exhibit"A-L"
IV.
The Untreated Water Supply Contract, the First Amendment, the Second Amendment, and
this Third Amendment are the entire agreement of the parties. In the event of any conflict between or
among these documents,the provisions of this Third Amendment shall control.
IN WITNESS WHREOF, the parties have signed this Third Amendment in multiple copies,
each of which shall be deemed an original, but all of which shall constitute but one and the same
contract,as of the date of countersignature.
CITY OF HOUSTON,TEXAS BAYTOWN AREA WATER AUTHORITY
("Seller") ("Buyer")
By: By:
' BRENDA BRADLEY SMITH,President
Third Contract Amendment to the Untreated Water Supply Contract,Page 2
u
ST: ATTE �OF Yro5t
ANNA RUSSELL,City Secretary ecretary
\�S
APPROVED:
P, A p-J.-I ---
/ Director,Department of Public Works and Engineering
APPROVED AS TO FORM:
Sr.Assistant City Attorney
LD.File No. 00ft I OD 7,13 Ow4
nSIGC -
tty o er
1
DATE OF COUNTERSIGNATURE
R:IKarenTiles\BAWXCity of Houston Contract ApprovahAGR Untreated Water Contract BAWA 11urd Amendment(11-24-15)SLC docz
Third Contract Amendment to the Untreated Water Supply Contract,Page 3
EXHIBIT "A"
Point of delivery to the Baytown Area Water Authority:
Approximate Texas coordinates:
North East x=3,258,560 y=738,120
South East x=3,258,560 y=735,840
South West x=3,255,730 y=735,890
ul)
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s'wit v
iiHr ^irio'rriri.ia
' r CITY OF HOUSTON Sylvester Turner
Department of Public Works and Engineering Mayor
�'��oiir/ trlt Dale A.Rudick.P.E
Director
P.O.Box 1562
Houston,Texas 77251-1562
T.832-395-2500
F.832-392-2480
www.houstontx.gov
February 25, 2016
City Clerk's Office
Baytown Area Water Authority
2401 Market Street
Baytown, Texas 77520
RE:Third Contract Amendment to the Untreated Water Supply Contract Between the City
of Houston and Baytown Area Water Authority; (Contract C34739, Ordinance 2016-0112)
Dear City Clerk:
Transmitted herewith is an original, signed and fully executed third contract amendment for the
subject agreement that was countersigned on February 24, 2016.
Should you have any questions, or require additional information, please contact me at 832-
395-3080 or email veronica.ose4ueda(&-houstontx.aov.
Sincerely,
Veronica R. Osegueda
Administration Manager
Planning and Development Services Division
Enclosure
VRO:smc
c* Yvonne Forrest
Sharon Citino
Mitchell Ramon
Rebekah Daniel
Greg Olinger, P.E., PMP
Contract file
Council Members: Brenda Stardig Jerry Davis Ellen R.Cohen Dwight A.Boykins Dave Martin Steve Le Greg Travis Karla
Cisneros Robert Gallegos Mike Laster Larry V.Green Mike Knox David W.Robinson Michael Kubosh Amanda Edwards Jack
Christie Controller Chris Brown
EXHIBIT "C
POINT OF DELIVERY TO LAKE MUNICIPAL UTILITY DISTRICT
APPROXIMATE TEXAS COORDINATES:
29.803690, -94.990720 Toyota Dealership
29.803636, -94.991554 Meadowlake Subdivision
29.825321, -94.985268 Highlands Ranch Subdivision
29.812894, -94.996682 Bay River Colony Subdivision
29.796027, -95.037328 West Meadows Subdivision
EXHIBIT "D"
N
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LAKE MUD
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83 »a., g 1
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^' •W Legend
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oLake MUD
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Pafcele
Parcel Developments
City
_Limit
NAME
n .. r.,
�..'� r+ ..>a.� F �� � ➢ �� S ' � �� 1®.. CITY
_ .,.w,. i e .►•`r° .!; F ! LIMITED ANNEMTION
..........
�aw.nsa.n• _ r 'E ..
• �' i+ �• PREPARED BY
w MATT BAILEY
A ..:_.
y. yYi'Nifva
cif c_1 `rir. .uri,Y4er _ ....-.. -... T• S
yS' 4 The City of Baybom Texas makes no
4 �.. .... ... i' Y.. _ �,representation,orb T tee
r• p.
F °`� 9 �einlr apwm�dddacy fordRplyy
' s 6 :.:.r..f.T purpoaea onN and doesnot
S (� _.,•VS0/1, Q 3. O.600 700 7.600 of .. s replace official recorded Uuwmms.
w, rI Date:72I29/2022
Water Supply Contract -- Treated Water
Lake Municipal Utility District
STATE OF TEXAS §
COUNTY OF HARRIS §
This Water Supply Contract -- Treated Water, hereinafter referred to as the "Contract," is
made and entered into on the date herein after last specified by and between the Baytown Area
Water Authority, a governmental agency and a body politic and corporate of the State of Texas,
created pursuant to Chapter 600, Acts of the 63`d Legislature, Regular Session, 1973, hereinafter
referred to as "BAWA," and the Lake Municipal Utility District, having a mailing address of 600
Jefferson, Suite 780, Houston, TX 77002-7395, hereinafter referred to as the "DISTRICT."
WHEREAS, BAWA has the right under a contract with the City of Houston to buy
untreated water from the City of Houston; and
WHEREAS, BAWA has constructed certain facilities to treat and deliver the
aforementioned untreated water to the DISTRICT as treated water at several points of delivery;
and the DISTRICT has constructed or caused to be constructed certain facilities to enable the
DISTRICT to receive the aforementioned treated water; and
WHEREAS, BAWA is desirous of selling large quantities of treated water from such
source or sources to the DISTRICT, and the DISTRICT, subject to the terms hereof, is desirous of
purchasing from BAWA its treated water requirements; and
WHEREAS, BAWA and DISTRICT have found, and do hereby find, that BAWA and
DISTRICT are authorized by the laws of the State of Texas to enter into a contract for the sale of
water upon such terms and for the period of time hereinafter set forth; and
WHEREAS,the DISTRICT is authorized to enter into a contract for the purchase of treated
water from BAWA pursuant to the Texas Water Code;
NOW THEREFORE, for and in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto do hereby mutually agree as follows:
ARTICLE I
DEFINITIONS
Unless a different meaning or intent clearly appears from the context, the following words
and terms shall have the meanings specified in this Article, respectively:
1.01 "Act" means Chapter 600, Acts of the 63`d Legislature, Regular Session, 1973.
1.02 "BAWA Contract" means the Water Supply Contract and all Contract Amendments
between the City of Houston and Baytown Area Water Authority. Copies of such contract
and amendments are attached hereto and incorporated herein for all intents and purposes
as Exhibits "A" and "B," respectively.
1.03 "Be ig nning Date" shall mean the date that DISTRICT begins receiving treated
water from BAWA under this Contract or the effective date hereof, whichever is later.
Such date may occur after the effective date of this Contract as defined in Article IX;
provided, however, that if DISTRICT does not begin receiving treated water within one
year of the effective date hereof, BAWA shall be under no further obligation to supply
DISTRICT with treated water.
1.04 "DISTRICT's Facilities" shall mean facilities constructed by DISTRICT to enable
DISTRICT to receive treated water.
1.05 "Contract Quantity" shall mean the maximum quantity of treated water that BAWA
agrees to reserve and sell to DISTRICT pursuant to Section 2.01 herein.
1.06 "Contract Term" is defined in Article IX.
1.07 "General Manager" shall mean the General Manager of the Baytown Area Water
Authority or any successor agency and all persons designated by the General Manager to
administer the sale and delivery of water to DISTRICT.
1.08 "MGD" is an abbreviation for million gallons of water per day. As used in this
contract, "MGD" refers to a quantity of water during a period of time expressed for
convenience in terms of an average daily quantity during a calendar month (unless a
different period of time is specified). The volume of two MGD for a calendar month, for
example, is calculated as follows: two million gallons multiplied by the number of days in
such calendar month.
1.09 "Point of Delivery" shall mean those delivery points as indicated on Exhibit "C,"
which is attached hereto and incorporated herein for all intents and purposes, to which
BAWA agrees to deliver treated water to DISTRICT.
1.10 "Point of Measurement" shall mean the location of the meter at which DISTRICT's
consumption of water is measured, more particularly described in Exhibit "C."
1.11 "Project" means the property, works, facilities and improvements, whether
previously existing or to be made,constructed or acquired,within or without the boundaries
of BAWA, necessary
(a) to acquire surface water supplies from sources both within and without the
boundaries of BAWA, including particularly the sources provided by
BAWA's Contract (herein defined),
(b) to conserve, store, transport, treat and purify untreated water purchased by
BAWA pursuant to BAWA's Contract, and
(c) to distribute, sell and deliver treated water to DISTRICT pursuant to the
terms of the Contract.
1.12 "Service Area" shall mean the area within the boundaries more particularly
described in Exhibit "D," which is attached hereto and incorporated herein for all intents
and purposes.
1.13 "TCEQ" shall mean the Texas Commission on Environmental Quality or its
successor.
1.14 "Water" shall mean potable water meeting the minimum drinking water standards
prescribed by Texas Department of Health Resources and Texas Commission on
Environmental Quality, and their successor agencies.
ARTICLE II
SALE AND DELIVERY OF WATER
2.01 Subject to the terms and conditions of this Contract, during the Contract Term,
BAWA agrees to sell and deliver(or cause to be delivered)to DISTRICT,all of DISTRICT's water
requirements of treated water to be supplied at the Points of Delivery at daily rates of delivery; and
DISTRICT agrees to purchase from BAWA all of DISTRICT's treated water requirements for
resale at the Points of Delivery during the term of this Contract. It is expressly agreed to and
understood that BAWA shall not be obligated to deliver to DISTRICT treated water in excess of
the Contract Quantity, which shall be the monthly average per day of 0.855 MGD.
2.02 The Points of Delivery for treated water sold under this Contract shall be designated
in writing by DISTRICT; provided, however, BAWA reserves the right to reject any Point of
Delivery designated by DISTRICT which would affect, interfere with or increase the cost of any
other facilities or operations which BAWA might wish to construct or implement, or plan to
construct or implement, or which would adversely affect BAWA's ability to provide treated water
to any of its customers. Both BAWA and DISTRICT agree that the Points of Delivery shall be
those indicated on Exhibit "C,"which is attached hereto and incorporated herein for all intents and
purposes. Additionally,DISTRICT may give BAWA notice in writing of any additional or change
in Point(s) of Delivery designated by DISTRICT, and BAWA agrees to accept or reject such
Point(s) of Delivery by a response in writing within thirty(30) days after BAWA's receipt of the
notice.
2.03 Treated water may be delivered to DISTRICT from any source or combination of
sources available to BAWA.
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2.04 The treated water to be delivered shall meet minimum standards prescribed by the
State of Texas for municipal purposes (as such term is defined by the TCEQ in its rules)and shall
be only used by DISTRICT within the Service Area.
2.05 If DISTRICT wishes to reserve for itself additional monthly quantities of treated
water, DISTRICT must notify BAWA in writing of DISTRICT's desire to do so. The General
Manager may,at his discretion after considering the treated water requirements of DISTRICT and
BAWA's obligations and commitments, increase the Contract Quantity to a monthly average per
day not to exceed one hundred ten percent(110%)of the highest monthly usage during the previous
twelve(12)month period;provided that such adjustment may be made only if the General Manager
has not given an adjustment pursuant to this section within the previous twelve (12) months.
BAWA may, at its discretion, discontinue delivery of such additional monthly requirements of
treated water by giving DISTRICT thirty (30) days' written notice.
2.06 DISTRICT shall own and be responsible for all lines connected to BAWA's
transmission line, beginning at the point where the metering device is installed to meter sales to
DISTRICT.
ARTICLE III
CONSTRUCTION OF THE PROJECT
3.01 DISTRICT agrees to proceed promptly with the acquisition and construction of the
Project with monies lawfully available for such purpose after obtaining written approval of the
plans and specifications from BAWA. However, such approval shall not be deemed to be for the
benefit of DISTRICT, but rather,just for the protection of BAWA's system.
3.02 If DISTRICT desires to materially revise the scope of or the plans and
specifications for the Project, such proposed revisions shall be submitted to BAWA for approval.
If BAWA approves such revisions, the Project shall be modified.
ARTICLE IV
RATES AND PRICES
4.01 DISTRICT agrees to pay BAWA's costs through the establishment of rates for the
purchase of treated water and by payments to BAWA based on such established rates. BAWA
shall periodically establish rates for the purchase of treated water. Billing at the rate for water as
specified hereinbelow shall not commence until the effective date of this Contract.
4.02 Whenever DISTRICT's consumption shall exceed Contract Quantity by ten percent
(10%), a five percent(5%) surcharge shall be charged against that portion of the consumption that
exceeds the Contract Quantity; provided, however, this surcharge shall not apply to any increase
in the quantity of treated water granted by the General Manager pursuant to Section 2.05 hereof.
4
4.03 All water sold and delivered by BAWA to DISTRICT for which DISTRICT is
obligated to pay hereunder shall be sold to DISTRICT at the rate per one thousand gallons
approved annually by the Board of Directors of the DISTRICT.
4.04 The amount of water delivered to DISTRICT shall be measured by the metering
equipment located at the point of delivery.
4.05 Additionally, DISTRICT understands and agrees that BAWA may at any time, by
order duly enacted,increase or change the price or prices for treated water as set forth in this article.
ARTICLE V
REPORTS
5.01 Within fifteen (15) days after the end of each quarterly period during the term of
this Contract, DISTRICT shall furnish BAWA with a statement under oath showing the quantities
and sources of all water for use or resale by DISTRICT.
ARTICLE VI
MEASURING EQUIPMENT
6.01 At its own cost and expense. DISTRICT shall furnish and install at the Point of
Delivery hereunder, measuring equipment properly equipped with meters, totalizers and devices
of standard type for measuring and recording accurately the quantity of water delivered under this
Contract. The meters shall have a capacity for measuring the quantity of water delivered within
an accuracy tolerance of two percent(2%)plus or minus for a given rate of flow. Such measuring
equipment shall be approved by BAWA,and after BAWA's approval of the installation,same shall
become property of BAWA. All measuring equipment shall be owned by BAWA, even when
purchased by DISTRICT, and all measuring equipment shall be located at the Point of Delivery as
shown on Exhibit "C." At its own cost and expense, DISTRICT shall also install, operate and
maintain, as required by BAWA, pressure regulating devices and equipment. These pressure
regulating devices and equipment shall remain the property of the DISTRICT but shall be
approved by BAWA.
6.02 During all reasonable hours as determined by the General Manager in his sole
discretion, BAWA, the City of Houston, and the Coastal Water Authority of Texas shall have
access to the measuring equipment. DISTRICT may have access to all records pertinent to
determining the measurement and quantity of treated water actually delivered hereunder, but the
reading of the measuring equipment for purposes of billing shall be done by BAWA.
6.03 After approved installation thereof, BAWA shall maintain the measuring
equipment within the accuracy tolerance specified in Section 6.04 by periodic tests. BAWA shall
conduct such tests at least once every twelve(12)months and shall notify DISTRICT at least forty-
eight(48) hours in advance of the time and location at which tests are to be made. BAWA agrees
to properly test said measuring equipment at BAWA's cost when requested to do so by DISTRICT
once every twelve (12) months. If DISTRICT requests an additional test within twelve (12)
5
months, BAWA shall charge DISTRICT an amount equal to BAWA's costs to perform such test
unless the test reveals that the equipment registers one hundred two percent (102%)or more for a
given flow rate. In addition, DISTRICT shall have the right to independently check, at its own
cost, said measuring equipment at any time upon forty-eight(48)hours'notification to the General
Manager and opportunity for the General Manager to witness such tests.
6.04 Should any test of the measuring equipment in question show that the equipment
registers either more than one hundred two percent (102%) or less than ninety-five percent(95%)
of the water delivered for a given flow rate,the total quantity of water delivered to DISTRICT will
be deemed to be the average daily consumption as measured by the measuring equipment when in
working order, and the meter shall be calibrated to the manufacturer's specifications (in the case
of Venturi meters) or the AWWA specifications (for all other types of meters) for the given rate
of flow,or replaced by BAWA with accurate measuring equipment that is tested before it is placed
in service. The adjustment shall be for a period extending back to the time when the inaccuracy
began, if such time is ascertainable; and if such time is not ascertainable, for a period extending
back to the last test of the measuring equipment or one hundred twenty (120) days, whichever is
shorter. If, for any reason, the measuring equipment is out of service or out of repair and the
amount of treated water delivered cannot be ascertained or computed from the reading thereof,
water delivered during the period shall be estimated and agreed upon by the parties hereto on the
basis of the best data available.
As used in this section, the expression "given rate of flow" means one of the following
selected by the General Manager:
(a) the total quantity of water delivered during the preceding period(usually a calendar
month) as reflected by the totalizer, converted to gallons per minute;
(b) high, low and intermediate rates of flow in the flow rate, as reflected by the flow
recording devices;
(c) the applicable Contract Quantity for the current period, usually a calendar month,
converted to gallons per minute; or
(d) AWWA-specified test flow rates for that size and type of meter.
6.05 In the event of a dispute between BAWA and DISTRICT as to the accuracy of the
testing equipment used by BAWA to conduct the accuracy test, an independent check may be
mutually agreed upon between DISTRICT and BAWA and shall be conducted by an independent
measuring equipment company suitable to both DISTRICT and BAWA. The cost of such test
shall be at DISTRICT's sole expense.
6.06 DISTRICT may install, at its own cost and expense, such check meters in
DISTRICT's pipeline or canal as may be deemed appropriate, but BAWA shall have the right of
ingress and egress to such check meters during all reasonable hours; provided, however, that
billing computations shall be on the basis of the results of the measuring equipment set forth above.
6
ARTICLE VII
BILLING AND PAYMENT
7.01 As used in this Article VII, the term "day" shall mean a period of twenty-four(24)
consecutive hours beginning at a mutually agreed-upon time on one calendar day and ending at
the same time on the next succeeding calendar day, and the term "month" shall mean a period
beginning at a mutually agreed-upon time on the first day of a calendar month and ending at the
same time on the first day on the next succeeding calendar month.
7.02 The measuring equipment shall be read on the day at the end of each month (or at
such period of frequency arranged between the parties) and at a mutually agreed upon time, or as
near thereto as practicable.
7.03 The quantities of treated water for which payment is due by DISTRICT hereunder
in any month shall be the total quantity of treated water delivered to DISTRICT in such month
determined by the measuring equipment described in Article VI hereof.
7.04 BAWA shall bill DISTRICT at DISTRICT's address within ten (10) days after the
read date by a statement showing the quantity of water used during the preceding month. Payment
shall be due and payable to BAWA at its offices in Baytown, Harris County, Texas, on or before
the twentieth (20`h) day after receipt of such statement.
7.05 Should DISTRICT fail to tender payment of any amount when due, interest thereon
shall accrue at the rate specified in Section 2251.025 of the Texas Government Code from the date
when due until paid, and DISTRICT shall be deemed to be in default.
ARTICLE VIII
TITLE TO AND RESPONSIBILITY FOR WATER
8.01 As between BAWA and DISTRICT, BAWA shall be in exclusive control and
possession of, and solely responsible for, all treated water deliverable hereunder and solely
responsible for any damage or injury caused thereby until the same shall pass through the Point of
Delivery. Thereafter, DISTRICT shall be in exclusive control and possession thereof and solely
responsible for any injury or damage caused thereby.
8.02 BAWA MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING
THE QUALITY OR DELIVERY PRESSURE OF TREATED WATER, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
8.03 With respect to all water handling facilities located between the Point of Delivery
and the Point of Measurement, BAWA and DISTRICT specifically agree:
(a) that all such facilities, other than the measurement equipment itself, shall be and
remain the property of DISTRICT subject to the terms of this Contract;
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(b) that DISTRICT shall take all reasonable steps to maintain such facilities and to
prevent leaks or discharges from such facilities;
(c) that DISTRICT shall repair any such leak or discharge at once upon receiving
notice thereof and pay BAWA the price of any water lost by reason of such a leak
or discharge;
(d) that DISTRICT shall correct or repair any damage caused by any such leak or
discharge and shall hold BAWA harmless from and against any such damage and
claims therefore;
(e) that DISTRICT shall alter or relocate, at its sole cost, any such facilities whenever
BAWA shall reasonably request in writing that the same be done; and
(f) that DISTRICT shall promptly remove such facilities and restore their locations to
their pre-existing conditions whenever this Contract is no longer in effect and
BAWA so requests in writing.
ARTICLE IX
TERM
This Contract shall be in full force and effect beginning on the date of execution by BAWA
until December 31, 2030, at 8:00 a.m.
ARTICLE X
PERFORMANCE BY BAWA AND DISTRICT
10.01 BAWA covenants and agrees that it will not contract for the sale of water to other
users to such an extent or for such quantities as to impair BAWA's ability to perform fully and
punctually its obligations to DISTRICT under this Contract. In case of temporary shortage of
water, notwithstanding BAWA's compliance with the portions of this Article X, BAWA shall
distribute the available supply as provided by the laws of the State of Texas, particularly Section
11.039(a) of the Texas Water Code, as amended.
10.02 Pursuant to the Amendatory Contract entered into by the City of Houston and the
San Jacinto River Authority. which is incorporated herein by this reference, DISTRICT covenants
and agrees that it shall take treated water for the purpose of distribution through its system, and
such water shall be used for municipal purposes(as such term is defined by TCEQ Rules,currently
in effect or as hereinafter amended) and for no other purposes. DISTRICT covenants and agrees
that such treated water shall be sold, distributed or used and ultimately consumed only for
residential households or other strictly municipal purposes exclusively within the Service Area.
No extension of these boundaries may be made by DISTRICT without written consent of BAWA
as well as the written consent of the San Jacinto River Authority and City of Houston, when
8
required pursuant to the Water Supply Contract between the City of Houston and BAWA, dated
October 24, 1994. DISTRICT agrees to include covenants similar to those contained in this
Section 10.02 in any sales or contracts for sale of water by DISTRICT to any other entity.
DISTRICT agrees to submit the wording of such covenants to BAWA for the written approval of
BAWA and all other required entities prior to entering into such contracts.
DISTRICT understands and agrees that BAWA,the City of Houston and/or the San Jacinto
River Authority may enforce the covenants contained in Section 10.02 herein by an action brought
directly against DISTRICT. In the event that BAWA and/or the City of Houston maintains any
legal proceeding to enforce such covenants, DISTRICT agrees to indemnify BAWA and/or the
City of Houston in the amount of all expenses relating to the legal proceeding, including, but not
limited to, costs of court and reasonable attorneys' fees.
10.03 DISTRICT acknowledges that according to the terms of the contract between
BAWA and the City of Houston, BAWA may be liable to the City of Houston and/or the San
Jacinto River Authority for monetary damages in the event that DISTRICT (or any purchaser of
water from or through DISTRICT) fails to comply with the restrictions and limitations on the sale
of water set out in Section 10.02 herein. DISTRICT acknowledges that such monetary damages
would amount to seventy-five percent (75%) of the consideration or revenue received by BAWA
for the estimated amount of water distributed, sold or used in violation of such restrictions or
limitations,plus all litigation expenses,reasonable attorneys'fees, and all other remedies available
to the City of Houston and/or the San Jacinto River Authority. DISTRICT hereby agrees to totally
indemnify, defend, and save BAWA harmless from and against any such expenses and liability
which BAWA might incur, or any loss BAWA might suffer, as a result of any failure by
DISTRICT,or any purchaser of water from or through DISTRICT,to comply with such restriction
and limitation. DISTRICT agrees that in the event that DISTRICT furnishes or sells water or water
services to a third party that in turn will furnish water to the ultimate consumer, DISTRICT shall
include covenants in any such sales or contracts for sale of water to such third party(ies)to ensure
that said other entity(ies)will likewise indemnify, hold harmless, and defend BAWA. DISTRICT
agrees to submit the wording of such covenants for the approval of BAWA prior to entering into
such contracts.
DISTRICT acknowledges that according to the terms of the contract between the City of
Houston and the San Jacinto River Authority,the City of Houston may be liable to the San Jacinto
River Authority for monetary damages in the event that DISTRICT (or any purchaser of water
from or through DISTRICT) fails to comply with the restrictions and limitations on the sale of
water set out in Section 10.02 herein. DISTRICT acknowledges that such monetary damages
would amount to seventy-five percent(75%) of the consideration or revenue received by the City
of Houston for the estimated amount of water distributed, sold or used in violation of such
restrictions or limitations, plus all litigation expenses, reasonable attorneys' fees, and all other
remedies available to the San Jacinto River Authority. DISTRICT hereby agrees to fully
indemnify,defend, and save the City of Houston harmless from and against any such expenses and
liability which the City of Houston might incur or any loss the City of Houston might suffer, as a
result of any failure by DISTRICT, or any purchaser of water from or through DISTRICT. to
comply with such restrictions and limitations. DISTRICT agrees that in the event that DISTRICT
furnishes or sells water or water services to a third party that in turn will furnish water to the
9
ultimate consumer, DISTRICT shall include covenants in any such sales or contracts for sale of
water to such third party(ies) to ensure that said other entity(ies) will likewise indemnify, hold
harmless, and defend the City of Houston. DISTRICT agrees to submit the wording of such
covenants for the approval of BAWA and the City of Houston prior to entering into such contracts.
10.04 DISTRICT agrees to maintain, at its sole expense, its water wells, if any, in good
repair and working order to facilitate the use of such water wells as an emergency source of supply,
if required, should BAWA be unable to deliver the Contract Quantity of water for any reason.
DISTRICT shall bear all costs of maintaining and supplying such emergency sources of supply.
ARTICLE XI
ENVIRONMENTAL CONSIDERATIONS
11.01 On or before the first anniversary of the effective date of this contract. DISTRICT
shall approve, implement and throughout the term hereof remain in full compliance with a water
conservation program, including, but not limited to, a drought contingency plan, in accordance
with the requirements of the TCEQ. Such plan (and any amendments thereto) shall be submitted
to the appropriate authority as required by state law for review and approval. In the event that the
TCEQ adopts new requirements, DISTRICT shall adopt an amended plan and submit the same to
the appropriate authority for review and approval.
11.02 DISTRICT agrees that in the event that DISTRICT furnishes or sells water or water
services to a third party that in turn will furnish water to the ultimate consumer, the requirements
of this Contract relative to water conservation shall be met through contractual agreements
between DISTRICT and the third party, providing for the implementation and continued
compliance with a water conservation program consistent with the requirements of the TCEQ.
ARTICLE XII
REMEDIES UPON DEFAULT
12.01 In the event of any default by DISTRICT in the performance of any of DISTRICT's
obligations hereunder which shall continue for a period of thirty (30) days or more, BAWA shall
give written notice to DISTRICT specifying the matter with respect to which DISTRICT is in
default and requesting that the same be remedied with promptness and dispatch. In the event
DISTRICT, within forty-five (45) days after the mailing of such notice by BAWA, has failed to
remedy the matter in default. BAWA may suspend further delivery of treated water to DISTRICT
hereunder, and in the event such default on the part of DISTRICT continues for an additional thirty
(30) days, BAWA may, by an additional written notice to DISTRICT, cancel and terminate this
contract, whereupon all rights of DISTRICT and all obligations of BAWA hereunder shall
terminate and be at an end. The exercise of such rights shall be in addition to any other remedies
available to BAWA under the laws of the State of Texas.
10
12.02 During any monthly period in which BAWA is unable to deliver to DISTRICT,
DISTRICT's daily requirements of water, whether as a result of temporary curtailments resulting
from temporary shortages as provided in Section 10.01 hereof or of force majeure as provided in
Article XIII hereof, DISTRICT shall be obligated to pay BAWA only for the quantities of treated
water actually delivered to DISTRICT under this contract during such month. During any such
period, DISTRICT shall be free to obtain treated water from other sources.
12.03 The failure of either party to insist in any one or more instance upon performance
of any of the terms, covenants or conditions of this Contract, shall not be construed as a waiver or
relinquishment of the future performance of any such term, covenant, or condition by the other
party hereto, but the obligation of such other party with respect to future performance shall
continue in full force and effect.
ARTICLE XIII
FORCE MAJEURE
13.01 In the event either party is rendered unable, wholly or in part, by force majeure to
carry out any of its obligations under this Contract other than the payment of money, or in the
event DISTRICT is rendered unable, wholly or in part, by force majeure to operate DISTRICT's
facilities, it is agreed that on such party giving notice and full particulars of such force majeure in
writing or by facsimile to the other party as soon as possible after the occurrence of the cause relied
upon, then the obligations of the party given such notice, to the extent it is affected by force
majeure and to the extent that due diligence is being used to resume performance at the earliest
practicable time, shall be suspended during the continuance of any inability so caused as to the
extent provided but for no longer period. Such cause shall as far as possible be remedied with all
reasonable dispatch.
13.02 The term "force majeure" as used herein, shall include, but not be limited to, acts
of God,strikes,lockouts,or other industrial disturbances,acts of the public enemy,war,blockades,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, storms, floods, washouts,
droughts, tornadoes, hurricanes, arrests and restraints of government and people, explosions,
breakage or damage to machinery, equipment, pipelines or canals, and any other inabilities of
either party, whether similar to those enumerated or otherwise and not within the control of the
party claiming such inability,which by the exercise of due diligence and care such party could not
have avoided.
13.03 It is understood and agreed that the settlement of strikes or lockouts shall be entirely
within the discretion of the party having the difficulty, and the above requirement that any force
majeure be remedied with all reasonable dispatch shall not require the settlement of strikes or
lockouts by acceding to demands of the opposing party when such course is inadvisable in the
discretion of the party having the difficulty.
13.04 DISTRICT shall not be guaranteed any specific quantity or pressure of water
whenever BAWA's treated water supply is limited or when BAWA's equipment may become
inoperative due to unforeseen breakdown or scheduled maintenance and repairs, and BAWA is in
11
no case to be held to any liability for failure to furnish any specific amount or pressure of water.
BAWA agrees that it will attempt to make any necessary repairs or adjustments to its equipment
within reasonable times mutually agreeable to both parties. It is further agreed that BAWA may,
without liability of default, interrupt its services hereunder to make necessary alterations to or
repairs in its facilities, but only if such interruption cannot otherwise reasonably be avoided.
BAWA shall schedule interruptions in advance after consultation with DISTRICT.
ARTICLE XIV
ADDRESS AND NOTICES
14.01 Until DISTRICT is otherwise notified in writing by BAWA,the address of BAWA
is and shall remain as follows:
Baytown Area Water Authority
Attn: General Manager
P.O. Box 424
Baytown, Texas 77522
Until BAWA is otherwise notified in writing by DISTRICT, the address of DISTRICT is
and shall remain as follows:
Lake Municipal Utility District
Attn: President
c/o Bacon& Wallace, L.L.P.
600 Jefferson, Suite 780
Houston, Texas 77002-7395
14.02 All written notices, statements, and payments required or permitted to be given
under this Contract from one party to the other shall be deemed given by telefax or the deposit in
a United States Postal Service mailbox or receptacle of certified or registered mail, with proper
postage affixed thereto, addressed to the respective other party at the address set forth above or at
such other address as the parties respectively shall designate by written notice.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.01 This contract shall bind and benefit the respective parties and their legal successors,
but shall not otherwise be assignable, in whole or in part, by either party without first obtaining
the written consent of the other; provided, however, that DISTRICT shall have the right, without
any consent of BAWA, to pledge or otherwise assign DISTRICT's rights hereunder to the extent
required by any mortgage, deed of trust or other similar agreement to which DISTRICT may be,
or hereafter become a party; provided that DISTRICT's successor or assignee, as the case may be,
is a responsible person or entity and shall (by operation of law or otherwise) expressly assume
DISTRICT's obligations hereunder; and provided, further, however,that no successor or assignee
12
of DISTRICT shall be entitled to receive water or sell water to a third party under this Contract
unless and until the City of Houston and the San Jacinto River Authority give their written consent
to such assignment.
15.02 This Contract shall be for the sole and exclusive benefit of BAWA and DISTRICT
and shall not be construed to confer any rights upon any third party, except as expressly provided
in Article X. BAWA shall never be subject to any liability in damages to any customer of
DISTRICT for any failure to perform under this Contract.
15.03 This Contract shall be subject to all present and future valid laws, orders, rules and
regulations of the United States of America and the State of Texas and of any regulatory body
having jurisdiction.
15.04 This instrument contains all the agreements made between the parties concerning
the sale and delivery of water by BAWA to DISTRICT at the Point of Delivery set out in this
Contract. This Contract supersedes any prior negotiations, agreements,or understandings relating
to the subject matters hereof.
15.05 The construction,interpretation and performance of this Contract shall be governed
by the laws of the State of Texas, and venue shall lie in Harris County, Texas.
15.06 All parties agree that should any provision of this Contract be determined to be
invalid or unenforceable,such determination shall not affect any other term of this Contract,which
shall continue in full force and effect. The parties agree that this Agreement shall not be construed
in favor of or against any party on the basis that the party did or did not author this Agreement.
15.07 Each party has the full power and authority to enter into and perform this Contract,
and the person signing this Contract on behalf of each party has been properly authorized and
empowered to enter into this Contract. The persons executing this Contract hereby represent that
they have authorization to sign on behalf of their respective entities.
15.08 The parties acknowledge that they have read,understand and intend to be bound by
the terms and conditions of this Contract.
[The remainder of this page is intentionally left blank]
13
ITNESS WHEREOF,the parties hereto have executed this contract as of the day
of , 2023, in multiple copies, each of which shall be deemed to be an
origin ut all of w ich shall constitute but one and the same contract.
BAYTOWN AREA WATER AUTHORITY
Jiueoi&
RENDA BRADLEY- ITH, President
A TEST: ��•�`�c+��,��jff
ANGELA aCKSON, Assistant Secret =
S ti�
APPROVED S�TO FORM:
SCOTT L OND, General Counsel
LAKE MUNICIPAL UTILITY DISTRICT
Signature
Printed Name
/
Title
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me, the undersigned r�y public, on this day
personally appeared r ' • in his/her capacity as 25 of Lake
Municipal Utility District
-------known to me
proved to me on the oath of _ or
proved to me through his/her current
{description of identification card or other document issued by the federal
government or any state government that contains the photograph and signature of
the acknowledging person}
(check one)
14
to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me
that he/she executed that instrument for the purposes and consideration therein expressed.
Given under my hand and seal of o i day of r'' 20, Q--
Notary Public in and for the State of Texa
..� rn �., PENNY MCi70NAL0
_rr° II
.Lo_Notary Public,State of Texas My commission expires: ! �^
9�•, r Comm.Expires 08-18.2024
°;r Notary ID 6477163
APPROVED TO CONFORMING TO
REQUIREMENTS OF CONTRACT
NO. 34739, SECTIONS 9.2 AND 9.3:
ARTURO G. MICHEL, City Attorney
CITY OF HOUSTON
R:%Karen Anderson`CONTRACTS'+.WaterSupplyContract-LakeMUD2021 (Rev.).docx
15
EXHIBIT "A"
August 8, 1994
WATER SUPPLY CONTRACT BETWEEN
THE CITY OF HOUSTON AND
BAYTOWN AREA WATER AUTHORITY 34739
THE STATE OF TEXAS § �V_/0/3
COUNTY OF HARRIS §
THIS CONTRACT (this "Contract") made and entered into by and between the City of
Houston, Texas a municipal corporation and home-rule city, which is principally situated and has
its City Hall in Harris County, Texas (hereinafter called "Seller"), and the Baytown Area Water
Authority, a governmental entity and a body politic and corporate which is situated and has its
principal office at Baytown, Harris County, Texas (hereinafter called "Buyer"),
WITNESSETH:
WHEREAS, Seller has the right under certain water permits to divert waters from the Trinity
River Basin, the Lake Livingston Reservoir, and the Wallisville Reservoir, and may acquire water
rights in other basins and reservoirs; and
WHEREAS, Seller has constructed and is constructing certain facilities to enable delivery
of the aforementioned water to Buyer at a single point of delivery and Buyer has constructed
certain facilities to enable Buyer to receive the aforementioned water, treat it so as to make it
potable, and distribute it; and
WHEREAS, Seller desires to sell large quantities of Untreated Water from such source or
sources to Buyer and Buyer intends to purchase its Untreated Water requirements from Seller for
treatment and resale; and
WHEREAS, Seller and Buyer have found, and do hereby find, that Seller and Buyer are
authorized by the Laws of the State of Texas to enter into contracts for the sale of water upon
such terms and for the period of time as are hereinafter set forth, and Seller and Buyer specifically
F GD2403 COH CONTRACT EWBID166
contemplate the provisions of Tex. Rev. Civ. Stat. Ann. art. 4413(32c) and Tex. Loc. Gov't Code
Ann. 402.021, as they have been enacted to the date of this Contract, in making these findings;
and
WHEREAS, Seller has entered an amendatory contract with the San Jacinto River Authority,
which grants Seller conditional permission to sell water to Buyer upon payment to the San Jacinto
River Authority the sum of Fifty ($50.00) Dollars per day during the term of this Contract.
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and
agreements herein contained, the parties hereto do hereby mutually agree as follows:
ARTICLE I.
Definitions
As used in this Contract, the following terms are intended and used herein and shall be
construed to have meanings as follows:
(1) The term "Beginning Date" shall mean the date that Buyer begins receiving
Untreated Water from Seller under this Contract or the effective date hereof, whichever is
later. Such date may occur after the effective date of this Contract as defined in Article
VIII. Provided, however,that if Buyer does not begin receiving Untreated Water within one
year of the effective date hereof, Seller shall be under no further obligation to supply Buyer
with Untreated Water.
(2) The term "Buyer's Facilities" shall mean facilities constructed by Buyer to enable
Buyer to receive Untreated Water.
(3) The term"Contract Quantity"shall mean the maximum quantity of Untreated Water
that the Seller agrees to reserve and sell to Buyer pursuant to Section 2.1 herein.
(4) The term "Contract Term" is defined in Article Vlll.
(5) The term "Director" shall mean the Director of the Department of Public Works and
Engineering of the City of Houston or any successor department and all persons designated
by the Director to administer the sale and delivery of Untreated Water to Buyer.
FA0024031COM1CONTRAMEW810188 -2-
(6) The term "MGD" is an abbreviation for million gallons of water per day. As used
in this Contract, "MGD" refers to a quantity of water during a period of time expressed for
convenience in terms of an average daily quantity during a calendar month (unless a
different period of time is specified). The volume of two MGD for a calendar month, for
example, is calculated as follows: Two million gallons multiplied by the number of days in
such calendar month.
(7) The term"Point of Delivery" shall mean the location, in Texas coordinates, to which
Seller agrees to deliver Untreated Water to Buyer more particularly described in Exhibit "A"
attached hereto and incorporated herein for all purposes.
(8) The term "Point of Measurement" shall mean the location, in Texas coordinates, of
the meter at which Buyer's consumption of water is measured more particularly described
in Exhibit "A" attached hereto and incorporated herein for all purposes.
(9) The term "Surface Water Source" shall mean those water rights in reservoirs,
basins, and other facilities now owned or hereinafter acquired by Seller and shall be
modified by any water rights hereinafter acquired or deleted at the sole discretion of the
Seller.
(10) The term "Surface Water System" shall mean all facilities and Surface Water
Sources now owned or hereinafter acquired or constructed by Seller for the purpose of
supplying Untreated Water.
01) The term "Surface Water System Costs" shall mean all costs budgeted for
expenditure by Seller in Seller's annual budget as approved by Seller's governing body or
actually incurred by Seller in acquiring, constructing, financing, administrating, operating,
and maintaining the Surface Water System and a reasonable allowance for depreciation and
replacement of the Surface Water System.
(12) The term "TNRCC" shall mean the Texas Natural Resource Conservation
Commission and its successor.
f:1GD24031COH%CONTRACTIEWB10186 •3-
(13) The term "Untreated Water" shall mean water supplied to Buyer from basins and
reservoirs, whatever the source, which has not been treated in any manner.
ARTICLE II.
Sale and Delivery of Water
2.1 Subject to the terms and conditions of this Contract,during the Contract Term Seller
hereby agrees to sell and deliver to Buyer and Buyer agrees to purchase from Seller Untreated
Water at the Point of Delivery shown in attached Exhibit "A" at daily rates of delivery as may be
needed by Buyer; provided, however, that under no circumstances shall the Seller be obligated to
deliver to Buyer Untreated Water in excess of the Contract Quantity of 11.9 MGD.
2.2 Buyer agrees to purchase at least 90% of its water requirements from Seller as
required under the Code of Ordinances. Any change to the location or existing connection facilities
must be approved both by Buyer and the Director.
2.3 Regardless of the Surface Water Source as defined by the Seller at any time,
Untreated Water may be delivered to Buyer from any source or combination of sources available
to the Seller.
2.4 Untreated Water delivered by Seller to Buyer shall be used only for municipal
purposes (as such term is defined by the TNRCC in its rules), and such Untreated Water shall be
used only within Buyer's service area shown on Exhibit "B."
2.5 If Buyer wishes to reserve for itself additional monthly quantities of Untreated
Water, Buyer must notify Seller in writing of Buyer's desire to do so. The Director may, at its
discretion after considering the Untreated Water requirements of the Seller and its obligations and
commitments, increase the quantity of Untreated Water supplied to Buyer; provided, however,that
Seller shall be under no obligation to deliver Untreated Water in excess of the Contract Quantity.
Seller may, at its discretion, discontinue delivery of such additional monthly requirements of
Untreated Water by giving Buyer 30 days written notice.
FAGD2401COMCONTRACTIEWB10188 -4-
ARTICLE III.
Rates and Prices
3.1 (a) The charge for all Untreated Water sold and delivered by Seller to Buyer shall
be calculated in accordance with the rates for untreated water customers as set forth in Article
II, Division 2, entitled "Untreated Water," of Chapter 47 of the Code of Ordinances of the City of
Houston, as amended, and as such provisions may be amended in the future, incorporated by
reference as fully and completely as if copied herein in full.
(b) Billing at the rate for Untreated Water shall not commence until the Beginning Date
of service on or after the effective date of this Contract.
(c) Whenever Buyer's consumption shall exceed the Contract Quantity by 10%, a 5%
surcharge shall be charged against that portion of the consumption that exceeds the Contract
Quantity. Provided, however, this surcharge shall not apply to any increase in the quantity of
Untreated Water granted by the Director under Section 2.5.
3.2 Additionally, Buyer understands and agrees that Seller may at any time by ordinance
duly enacted, increase or change the price or prices for Untreated Water as set forth in the Code
of Ordinances.
3.3 Buyer recognizes Seller owns and operates an extensive surface water system and
will continue to add capacity to such system by acquisition and construction of new facilities and
water rights and agrees that the cost of providing Untreated Water shall be recalculated
periodically by Seller, taking into account all Surface Water System Costs, regardless of the point
of delivery.
P:IG024031CONICONTRACT%EWB/0188 'rJ'
ARTICLE IV.
Renorts
Within thirty days after the end of each quarterly period during the term of this Contract,
Buyer shall furnish Seller with a statement under oath showing the quantities and sources of all
water (1) used or sold by Buyer to its customers and (2) all Untreated Water received from Seller
during such quarterly period.
ARTICLE V.
Measurina Equipment
5.1 All measuring equipment shall be owned by Seller, even when purchased by Buyer,
and shall be located at The Point of Measurement as shown on Exhibit "A".
5.2 During all reasonable hours, Seller, Buyer and the Coastal Water Authority of Texas
shall have access to the measuring equipment. Buyer may have access to all records pertinent to
determining the measurement and quantity of Untreated Water actually delivered hereunder, but
the reading of the measuring equipment for purposes of billing shall be done by Seller.
5.3 Seller shall maintain the measuring equipment within the accuracy tolerance
specified in Section 5.4 by periodic tests. Seller shall conduct such tests at least once every
twelve 0 2) months and shall notify Buyer at least forty-eight(48) hours in advance of the time and
location at which tests are to be made. Seller agrees to properly test said measuring equipment
at Seller's cost when requested to do so by Buyer once every twelve (12) months. If Buyer
requests an additional test within twelve (12) months, Seller shall charge Buyer an amount equal
to Seller's cost to perform such test unless the test reveals that the equipment registers one
hundred and two (102%) percent or more for a given flow rate. In addition, Buyer shall have the
right to independently check, at its own cost, said measuring equipment at any time upon 48 hours
notification to the Director and opportunity for the Director to witness such tests.
f:%OD24031COH%CONTmvnEWB1O166 -6-
5.4 Should the test of the measuring equipment in question show that the equipment
registers either more than one hundred two percent (102%)or less than ninety-five percent(95%)
of the water delivered for a given flow rate, the total quantity of Untreated Water delivered to
Buyer will be deemed to be the average daily consumption as measured by the measuring
equipment when in working order, and the meter shall be calibrated to the manufacturer's
specifications (in the case of Venturi meters) or the AWWA specifications (for all other types of
meters) for the given rate of flow, or replaced by Seller with accurate measuring equipment that
is tested before it is placed in service. This adjustment shall be for a period extending back to the
time when the inaccuracy began, if such time is ascertainable; and if such time is not
ascertainable, for a period extending back to the last test of the measuring equipment or one
hundred twenty 0 20) days, whichever is shorter.
As used in this paragraph, the expression "given rate of flow" means one of the following
selected by the Director for each calibration or test:
1) the total quantity of Untreated Water delivered during the preceding
period (usually a calendar month) as reflected by the totalizer, converted to gallons
per minute;
2) high, low, and intermediate rates of flow in the flow range, as
reflected by the flow recording devices;
31 the applicable Contract Quantity for the current period, usually a
calendar month, converted to gallons per minute; or
4) AWWA-specified test flow rates for that size and type of meter.
5.5 In the event of dispute between Seller and Buyer as to the accuracy of the testing
equipment used by the Seller to conduct the accuracy test, an independent check may be mutually
agreed upon between Buyer and Seller to be conducted by an independent measuring equipment
company suitable to both Buyer and the Director. The cost of such test will be at Buyer's sole
expense.
F:IGD2403%COH1CONTRACflEWB1016B '7-
5.6 Buyer may install, at its own cost and expense, such check meters in Buyer's pipe
line or canal as may be deemed appropriate, but Seller shall have the right of ingress and egress
to such check meters during all reasonable hours; provided, however, that billing computations
shall be on the basis of the results of the measuring equipment set forth above.
ARTICLE VI.
Billing and Payment
6.1 As used in this Article VI, the tern "day" shall mean a period of twenty-four
consecutive hours beginning at a mutually agreed-upon time on one calendar day and ending at
the same time on the next succeeding calendar day, and the term "month" shall mean a period
beginning at a mutually agreed-upon time on the first day of a calendar month and ending at the
same time on the first day on the next succeeding calendar month.
6.2 The measuring equipment shall be read on the day at the end of each month (or at
such other period of frequency arranged between the parties)and at a mutually agreed upon time,
or as near thereto as practicable.
8.3 The quantity of Untreated Water for which payment is due by Buyer hereunder in
any month shall be the total quantity of Untreated Water delivered to Buyer in such month as
determined by the measuring equipment described in Article V hereof.
6.4 Seller shall bill Buyer at Buyer's address within ten days after the read date by a
statement showing the quantity of Untreated Water used during the preceding month. Payment
shall be due and payable to Seller at its offices in Houston, Harris County, Texas,on or before the
twentieth day after receipt of such statement.
6.5 Should Buyer fail to tender payment of any amount when due,interest thereon shall
accrue at the rate of ten percent per annum from the date when due until paid and Buyer shall be
deemed to be in default.
F.100240 lcOMcaNTRAmEV arose -$-
ARTICLE VII.
Title to and Responsibility for Water
7.1 As between Buyer and Seller, Seller shall be in exclusive control and possession of,
and solely responsible for, all Untreated Water deliverable hereunder and solely responsible for any
damage or injury caused thereby until the same shall pass through the Point of Delivery and
thereafter, Buyer shall be in exclusive control and possession thereof and solely responsible for any
injury or damage caused thereby.
7.2 SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE
QUALITY OR DELIVERY PRESSURE OF UNTREATED WATER, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.3 With respect to all water handling facilities located between the Point of Delivery
and Point of Measurement, Buyer and Seller specifically agree:
1) that all such facilities, other than the measurement equipment itself, shall be and
remain the property of Buyer, subject to the terms of this Contract;
2) that Buyer shall take all reasonable steps to maintain such facilities and to prevent
leaks or discharges from such facilities;
3) that Buyer shall repair any such leak or discharge at once upon receiving notice
thereof and pay Seller the price of any water lost by reason of such a leak or
discharge;
4) that Buyer shall correct or repair any damage caused by any such leak or discharge
and shall hold Seller harmless from and against any such damage and claims
therefore;
5) that Buyer shall alter or relocate, at its sole cost, any such facilities whenever Seller
shall reasonably request in writing that the same be done; and
FAGD2403TONICONTFIACT M10160 -9-
6) that Buyer shall promptly remove such facilities and restore their locations to their
pre-existing conditions whenever this Contract is no longer in effect and the Seller
so requests.
ARTICLE VIII.
Term
This Contract shall be in force and effect beginning on the date of countersignature shown
below until December 31, 2020 at 8:00 a.m.
ARTICLE IX.
Performance by Seller and Buyer
9.1 Seller covenants and agrees that it will not contract for the sale of Untreated Water
to other users to such an extent or for such quantities as to impair Seller's ability to perform fully
and punctually its obligations to Buyer under this Contract. In case of temporary shortage of
water, notwithstanding Seller's compliance with the provisions of this Article IX, Seller shall
distribute the available supply as provided by the laws of the State of Texas, particularly Section
11.039 (a) of the Texas Water Code, as amended.
9.2 Pursuant to the Amendatory Contract entered by Seller and the San Jacinto River
Authority, a copy of which is attached hereto as Exhibit "C" and incorporated herein for all
purposes, and notwithstanding any other provision of this Contract to the contrary, Buyer
covenants and agrees that it takes the Untreated Water under this Contract from Seller for the
limited purpose of treating and selling the same as potable treated water to the City of Baytown
and other local governmental entities; such water to be used for municipal purposes (as such term
is defined by TNRCC Rules) and for no other purposes, and such treated Water shall be sold,
distributed or used only for residential household and other strictly municipal purposes within the
area shown in Exhibit "B." No extension of these boundaries may be made by Buyer without the
written consent of the San Jacinto River Authority and Seller. Buyer agrees to include covenants
similar to those contained in this Section 9.2 in any sales or contracts for sale of water by Buyer
V%G02403tCOWCONTRAC REW810166 -1 0-
to any other entity. Buyer agrees to submit the wording of such covenants for the written
approval of Seller prior to entering into such contracts.
9.3 Buyer understands and agrees that either Seller or the San Jacinto River Authority,
or both, may enforce the covenants contained in Section 9.2 herein by an action brought directly
against Buyer. In the event that Seller maintains any legal proceeding to enforce such covenants,
Buyer agrees to indemnify Seller in the amount of all expenses relating to the legal proceeding,
including, but not limited to, costs of court and reasonable attorney's fees.
9.4 Buyer acknowledges that Seller may be liable to the San Jacinto River Authority for
monetary damages in the event that Buyer(or any purchaser of water from or through Buyer) fails
to comply with the restrictions and limitations on the sale of water set out in Section 9.2 herein.
Buyer acknowledges that such monetary damages would amount to seventy-five percent (75%)
of the consideration or revenue received by Seller for the estimated amount of water distributed,
sold, or used in violation of such restrictions or limitations, plus all litigation expenses, reasonable
attorney fees, and all other remedies available to the San Jacinto River Authority. Buyer hereby
agrees to fully indemnify and save Seller harmless from and against any such expenses and liability
which Seller might incur, or any loss Seller might suffer, as a result of any failure by Buyer, or any
purchaser of water from or through Buyer,to comply with such restrictions and limitations. Buyer
further agrees to include covenants in any sales or contracts for sale of water by Buyer to any
other entity to insure that said other entity will likewise indemnify and save Seller harmless. Buyer
agrees to submit the wording of such covenants for the approval of Seller prior to entering into
such contracts.
9.5 Buyer agrees to maintain, at its sole expense, its water wells, if any, in good repair
and working order to facilitate the use of such water wells as an emergency source of supply, if
required, should Seller be unable to deliver the Contract Quantity of Untreated Water for any
reason. Buyer shall bear all costs of maintaining and supplying such emergency sources of supply.
FAGD24031COMCONTPAMEWB1OIN -1 1-
ARTICLE X.
Environmental Considerations
10.1 On or before the first anniversary of the effective date of this Contract, Buyer shall
approve and implement and throughout the term hereof remain in full compliance with a water
conservation program in accordance with requirements of the TNRCC. Such plan (and any
amendments thereto) shall be submitted to the appropriate authority as required by state law for
review and approval. In the event that the TNRCC adopts new requirements, Buyer shall adopt
an amended plan and submit same to the appropriate authority for review and approval.
10.2 Buyer agrees that in the event that Buyer furnishes or sells water or water services
to a third party that in turn will furnish water to the ultimate consumer, the requirements of this
Contract relative to water conservation shall be met through contractual agreements between the
Buyer and the third party, providing for the implementation and continued compliance with a water
conservation program consistent with the requirements of the TNRCC.
ARTICLE XI.
Remedies Uoon Default
11.1 In the event of any default by Buyer in the performance of any of Buyer's obligations
hereunder which shall continue for a period of thirty days or more, the Seller shall give written
notice to Buyer specifying the matter with respect to which Buyer is in default and requesting that
the default be remedied with promptness and dispatch. In the event Buyer, within forty-five days
after the mailing of such notice by Seller, has failed to remedy the matter in default, Seller may
suspend further delivery of Untreated Water to Buyer hereunder; and in the event such default on
the part of Buyer continues for an additional thirty days, Seller may, by an additional written notice
to Buyer, cancel and terminate this Contract, whereupon all rights of Buyer and all obligations of
Seller hereunder shall terminate and be at an end. The exercise of such rights shall be in addition
to any other remedies available to Seller under the laws of the State of Texas.
F:10D24031C0N1C0NTRACT%EWB10166 -1 2-
11.2 The failure of either party to insist in anyone or more instances upon performance
of any of the terms, covenants or conditions of this Contract shall not be construed as a waiver
or relinquishment of the future performance of any such term, covenant or condition by the other
party hereto, but the obligation of such party with respect to future performance shall continue in
full force and effect.
ARTICLE XII.
Force Maieure
12.1 In the event either party is rendered unable, wholly or in part, by force majeure, to
carry out any of its obligations under this Contract, or in the event Buyer is rendered unable,
wholly or in part, by force majeure to operate Buyer's Facilities, it is agreed that on such party's
giving notice and full particulars of such force majeure in writing or by telefax or telegraph to the
other party as soon as possible after occurrence of the cause relied upon, then the obligations of
the party giving such notice, to the extent it is affected by force majeure and to the extent that
due diligence is being used to resume performance at the earliest practicable time, shall be
suspended during the continuance of any inability so caused as to the extent provided, but for no
longer period. Such cause shall as far as possible be remedied with all reasonable dispatch.
12.2 The term "force majeure", as used herein, shall include, but not be limited to, acts
of God,strikes, lockouts or other industrial disturbances, acts of the public enemy, war, blockades,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, storms, floods, washouts,
droughts, tornadoes, hurricanes, arrests and restraints of government and people, explosions,
breakage or damage to machinery, equipment pipelines or canals and any other inabilities of either
party, whether similar to those enumerated or otherwise and not within the control of the party
claiming such inability, which by the exercise of due diligence and care such party could not have
avoided.
12.3 It is understood and agreed that the settlement of strikes or lockouts shall be
entirely within the discretion of the party having the difficulty and the above requirement that any
F.%G0240MCOH%CONMCnEW810166 -13-
force majeure be remedied with all reasonable dispatch shall not require the settlement of strikes
or lockouts by acceding to the demands of the opposing party when such course is inadvisable in
the discretion of the party having the difficulty.
12.4 It is understood and agreed that Seller receives its supply of water from others, and
such water must be transported over long distances before it is received by Seller. Accordingly,
it is agreed that stoppage or diminution of the water received by the Seller from one or more of
its Surface Water Sources (other than by reason of the Seller's failure to make payments due to
its suppliers) shall be deemed a force majeure, and that the Seller cannot and does not guarantee
constant availability of water hereunder but does agree to use its best efforts to maintain such
availability. It is further agreed that the Seller may, without liability or default, interrupt its service
hereunder to make necessary alterations to or repairs in its facilities, but only if such interruption
cannot otherwise reasonably be avoided. The Seller shall give reasonable prior notice of any such
interruption to Buyer and,to the extent possible, the Seller shall schedule interruptions in advance
after consultation with Buyer.
ARTICLE XIII.
Addresses and Notices
13.1 Until Buyer is otherwise notified in writing by Seller, the address of Seller is and
shall remain as follows:
City of Houston Utility Customer Service Division
Contract Water Accounting Section
P. 0. Box 1560
Houston, Texas 77251
Until Seller is otherwise notified in writing by Buyer, the address of Buyer is and shall remain as
follows:
Baytown Area Water Authority
P.O. Box 424
Baytown, Texas 77522-0424
FAG024031COWCONTNACT%EW 810166 -1 4-
13.2 All written notices required or permitted to be given under this Contract from one
party to the other shall be deemed given by telefax or the deposit of certified or registered mail in
a United States Postal Service mail box or receptacle, with proper postage affixed thereto and
addressed to the respective other party at the address set forth above or at such other address as
the parties respectively shall designate by written notice.
ARTICLE XIV.
Miscellaneous Provisions
14.1 This Contract shall bind and benefit the respective parties and their legal successors,
but shall not otherwise be assignable, in whole or in part, by either party without first obtaining
the written consent of the other; provided, however, that Buyer shall have the right, without any
consent of Seller, to pledge or otherwise assign Buyer's rights hereunder to the extent required by
any mortgage, deed of trust or other similar agreement to which Buyer may now be, or hereafter
become, a party or to otherwise assign Buyer's rights and obligations hereunder in connection with
any merger or consolidation or any sale of all or substantially all of Buyer's facilities, provided that
Buyer's successor or assignee, as the case may be, is a responsible person and shall 1by operation
of law or otherwise) expressly assume Buyer's obligations hereunder; and provided, further,
however, that no successor or assignee of Buyer shall be entitled to receive Untreated Water or
sell such Untreated Water to a third party under this Contract unless and until the San Jacinto
River Authority gives its written consent to such assignment.
14.2 This Contract shall be for the sole and exclusive benefit of Buyer and Seller and shall
not be construed to confer any rights upon any third party. Seller shall never be subject to any
liability in damages to any customer of Buyer for any failure to perform under this Contract.
14.3 This Contract shall be subject to all present and future valid laws, orders, rules and
regulations of the United States of America, the State of Texas and of any regulatory body having
jurisdiction.
FAM240MCOMCONTRACT\Ew610168 -1 5-
14.4 This instrument contains all the agreements made between the parties concerning
the sale and delivery of Untreated Water by the Seller to the Buyer at the Point of Delivery set out
in this Contract.
14.5 With respect to any prior agreements between the parties or their predecessors for
the sale of Untreated Water to Buyer at any Point of Delivery hereunder, the future obligations of
both parties to perform under any such prior agreement are terminated effective as of the effective
date hereof, except as follows:
Any obligations which arise prior to such effective date, including
specifically the obligations of Buyer to pay money to Seller for time
periods or deliveries prior to such effective date, are not terminated.
F:10024031COMCONTRACT1 M10166 -16-
IN WITNESS WHEREOF, the parties hereto to have signed this Contract in multiple copies,
each of which shall be deemed to be an original, but all of which shall constitute but one and the
same contract, as of the date of countersignature.
ATTEST: CITY eOFOUSTON, TEXAS
City Secretary Mayor
ATTEST: BAYTOWN AREA WATER AUTHORITY
BAYTOWN, HARRIS COUNTY, TEXAS
(Buyer)
'4 1,4
Titla: Secretary Title: President
TuTERSIG PDB �.
f City ontroll r
APPROVED AS TO FOJIM: DAT OF C UNTER IGNATURE:
Sr. Assistant City Attorney
APPROVED:
D io'tor, Department of t 0- r ..4jL
Public Works & Engineering
F GD2403 COH CONTRAMEW610166 -1]-
APPROVED AS TO CONFORMITY WITH PARAGRAPH 2 OF THE CONTRACT
BETWEEN THE CITY OF HOUSTON AND THE SAN JACINTO RIVER
AUTHORITY DATED JUNE 22, 1976:
SAN JACINTO RIVER AUTHORITY
By:
General Manager
Date: Z 3 f
FAG024WICOM1CONTMMEW810166 -1 8-
BUYER'S ACKNOWLEDGMENT
THE STATE OF TEXAS §
COUNTY OF HARRIS §
This instrument was acknowledged before me on
R-17-94 by Robert L. Gillette,
(date) (name)
President of Baytown Area Water Authority.
p Notary Public in and for the
State of Texas
OF IP Commission Expires: October 31, 1994
f `Vpv��a
f:10D240MCOMCONTRAMEW610166 -19-
WATER SUPPLY CONTRACT
CITY OF HOUSTON
BAYTOWN AREA WATER AUTHORITY
TABLE OF CONTENTS
ARTICLE I. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II. Sale and Delivery of Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE Ill. Rates and Prices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV. Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE V. Measuring Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VI. Billing and Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE VII. Title to and Responsibility for Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE Vill. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IX. Performance by Seller and Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE X. Environmental Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE XI. Remedies Upon Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE XII. Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE XIII. Addresses and Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE XIV. Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
FAG024071CON1CONTRAMEW810166 41
El=ff "A"
Point of delivery to the Baytown Area Water Authority:
Approximate Texas coordinates:
North East x=3,258,560 y=738,120
South East x=3,258,560 y=735,840
South West x=3,255,730 y=735,890
'for
BAYTOWN AREA
WATER AUTHORITY KMKE
PLANT i arAK L
B T W
TAM w �
OLD SERVICE AREA
® ADDED SERVICE AREA
EXHIBIT B
EXHIBIT B BAYTOWN AREA WATER A
THORITY SERVICE AREA
AMENDATORY CONTRACT BETWEEN
SAN JACINTO RIVER AUTHORITY
AND
THE CITY OF HOUSTON, TEXAS
THE STATE OF TEXAS X
X
COUNTY OF HARRIS
THIS CONTRACT executed as of the_,*:;? ,4"day of
1976, by and between the SAN JACINTO RIVER AUTHORITY, ("SJRA") a
conservation and reclamation district and political subdivision
of the State of Texas, and the CITY OF HOUSTON, TEXAS, ("the City")
a municipal corooration:
1.
The provisions of Section VII of the contract between the
parties dated March 27, 1944. shall have no application to sales
of Trinity River raw water by the City to the Baytown Area Water
Authority ("BAWA"), a municipal corporation created by Ch. 600,
p. 641, Sixty-Third legislature, Regular Session, 1973. for the
limited purpose of treating and selling the same as potable treated
water to the City of Baytown and other local governmental entities
for distribution through the municipal water systems of such local
governmental entities, such water to be used for municipal purposes,
as defined by Rule 129.01.15001-.041. promulgated by the Texas
Water Rights Commission on December 1, 1975, and for no other pur-
poses, and only within the boundaries of BAWA as such boundaries
exist on the date of this contract; PROVIDED, that no such water
shall be sold, distributed or used other than for residential
household and other strictly domestic purposes within the area
bounded by Interstate Highway No. 1D on the north, Sjolander Road
-n the m-est. Archer Road oti the south, and Cedar Bayou on the east,
without written consent of SJRA.
2.
The City shall insure that all instruments relating
to the sale of water to BAWA include appropriate covenants on
EXHIBIT C
the part of BAWA to observe the limitations and restrictions
imposed on the City by the contract dated March 27, 1944, as
modified by this contract, and to include covenants in all
sales and contracts for the sale of water by BAWA insuring
compliance with such restrictions and limitations. The word-
ing of the covenants giving effect to such restrictions and
limitations shall be submitted to the General Manager of the
SJRA for approval as to conformity to this paragraph prior to
any sale by the City subject to this contract. The City shall
be responsible for the enforcement of such covenants, but they
shall also be enforceable by SJRA directly.
3.
In the event any water delivered by the City to BAWA
under this contract is used in violation of such restrictions
or limitations, SJRA shall be entitled to recover from the
City as liquidated damages an amount equal to seventy-five
percent (75%) of the consideration or revenue received by the
City for the estimated amount distributed, sold or used in
violation of such restrictions or limitations, plus all liti-
gation expenses and reasonable attorney's fees. The recovery
of such liquidated damages shall be in addition to all other
remedies available to SJRA.
4.
In consideration of the foregoing limited waiver by
SJRA of the restrictions and limitations imposed by the
contract dated March 27. 1944. the City shall pay to the SJRA
an amount equal to $50 per day during such period that the
City receives payment from BAWA for water sold under this
waiver, but su:h payinants to SJRA s'hsil noc extend beyond a
period of 20 years. Payment shall be made on a quarterly basis
on or before the loth day of the month following each calendar
quarter.
-2-
5.
The contract shall not be assignable by either party
without the written consent of the other; however the obligations
imposed hereunder shall be binding on their successors or assigns.
The waiver provided herein shall be applicable only to sales by
the City to BAWA and shall not be applicable to any sale by
the City to any other entity, including any successors or assignee
entity to BAWA, without the written consent of SJRA.
6.
Except as amended by this contract and the contracts
between the parties dated July 19, 1955, May 9, 1968 and the
contract dated September 1, 1971, the provisions of the ifarch
27, 1944, contract shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto, acting under the
authority of their respective governing bodies have caused this
contract to be executed on this day of ,,v 1976
in duplicate originals, each of which shall constitute an original
SAN JACINTO RIVER AUTHORITY
ATTEST:
By
Vice ent
By /�/[tuE ��al.l�
secretary
CITY OF HOUSTON
ATTEST: By Chi/
4a�
By
City Secretary
COUNTERSIGNED:
'C�cy Con trolTr
APPROVED A
City Attorney
City n
-3-
EXHIBIT "Ble
CONTRACT AMENDMENT
o - � �
This CONTRACT AMENDMENT ("the Amendment") is made and entered
into by and between the City of Houston, Texas a municipal corporation and home-rule
City, which is principally situated and has its City Hall in Harris County, Texas ("City"),
and the Baytown Area Water Authority, a governmental entity and body politic and
corporate, which is situated and has its principal office at Baytown, Harris County, Texas
("Authority").
WITNESSETH
WHEREAS, the City and the Authority entered into the Water Supply Contract
on or about October 24, 1994; and
WHEREAS, the Authority desires to extend the term of the Contract and increase
the Contract Quantity; and
WHEREAS, the City is agreeable to these changes;
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants and agreements herein contained, the parties hereby agree as follows:
I.
Section 2.1 of the Water Supply Contract is amended by increasing the Contract
Quantity(as defined therein) to 15.8 million gallons per day.
II.
Article VI1I of the Water Supply Contact is amended by extending the
termination date to December 31, 2040.
lt13dc2%litigation%Karcn%l'ilcslContracts'UA WA Contract with City of Ilouslon\BAY I OWNCIcan DOC
1 1 13 2004
The Director of Public Works and Engineering ("Director") is authorized to
reduce the Contract Quantity upon 30 days' notice to the Authority as follows:
If the Authority has failed to take at least 25%of the Contract Quantity for
each of 18 consecutive months, the Director may decrease the Contract
Quantity to the average monthly consumption by the Authority during the
latest 18 month period. In calculating the 18 month period, the Director
shall disregard any month where a force majeure prevented the Authority
from taking at least 25%of the Contract Quantity.
Iv.
The Water Supply Contract and this Amendment are the entire agreement of the
parties. In the event of any conflict between a provision of the Water Supply Contract
and this Amendment,the provision of this Amendment shall control.
\\Bdc2\li6pdon\Kamn\Files\Connacts\BAWA Contmet with City of Nouston\BAYTOWNClean.DOC
2 11/3R004
IN WITNESS WHEREOF, the parties hereto have signed this Amendment in
multiple copies each of which shall be deemed to be an original, but all of which shall
constitute but one and the same contract,as of the date of countersignature.
BAYTOWN AREA WATER AUTHORITY CITY OF HOUSTON, TEXAS
BAYTOWN, HARRIS COUNTY,TEXAS ("City")
("Buyer")
a W
ROBERT L. GILLETTE President
ATTEST: ATT T:
G R W. SMITH City Secretary
assistant Secretary
APPROVED AS TO FORM: APPROVED:
e�J_000 s"` 4 47"1Ll0')
ACIO RAMIREZ, S Director, Department of Public
General Counsel Works and Engineering
APPROV AS TO FORM:
Sr. Assistant City Attorney
UNTERSIGNATURE:
Contr 1 r
COUNTERSIGNATURE DATE:
3101
BJc2'.1itigation.Karen\riles'.Contracts+BAWA Contract with City of Iloti,lon BAYTOWNCIcan.DOC
3 11/3 2004
BUYER'S ACKNOWLEDGMENT
THE STATE OF TEXAS §
COUNTY OF HARRIS §
This instrument was acknowledged before me on Nnvemher 4, 2004
(date)
by Robert L. Gillette _ , President of Baytown Area
(name)
Water Authority.
R EPR xas Notary P blic in d fo eState of Texas
•20Q5
Commission Expires: October 25, 2005
lU3dc2%litigationlKarenW,iics'Contracts\BAWA Contact with City orIloustoMBAYTOWNClean.UOC
4 IIl3/2004
SECOND CONTRACT AMENDMENT D7. Oaf
UNTREATEI) WATER SUPPLY CONTRACT
THIS SECOND CONTRACT AMENDMENT is made and entered into by and between the
CITY OF HOUSTON, TEXAS ("Seller") and the BAYTOWN AREA WATER AUTHORITY
("Buyer").
WITNESSETH:
WHEREAS, the Seller and the Buyer entered into Contract No. 34739 on or about October 24,
1994 for the purchase of untreated water("Untreated Water Contract"); and
WHEREAS, the Seller and the Buyer entered into the Amendment("Amendment") to the
Untreated Water Contract on or about January 3, 2005; and
WHEREAS, the Buyer desires to change its Contract Quantity from 15.8 million gallons per
day to 20 million gallons per day; and
WHEREAS, the Seller is agreeable to changing the Contract Quantity;
NOW, THEREFORE, for and in consideration of the premises and mutual covenants and
agreements herein contained, the parties agree as follows:
I.
Article I of the Amendment is amended such that the Contract Quantity is increased to 20
million gallons per day.
II.
The Untreated Water Contract, the Amendment and this Second Amendment are the entire
agreement of the parties. In the event of any conflict between or among these documents, the
provisions of the latest Amendment shall control.
RAnren File,BA«'A 01y of Houston Contract Appro%al BAYfOWN2 DOC ]
t 0/18/2006
IN WITNESS WHEREOF, the Parties have signed this Second Amendment in multiple
copies, each of which shall be deemed an original, but all of which shall constitute but one and the
same contract, as of the date of countersignature.
CITY OF HOUSTON,TEXAS BAYTOWN AREA WATER AUTHORITY
("City") BAYTOWN,HARRIS COUNTY,TEXAS
� yy ("Buyer")
�W
By: By:
Mayor Name: Robert L. Gillette
Title: Title: President
EST/SEAL: ATTEST/SEAL:
BY:
City Sceretary Name: Peter R. Buenz
Title: Secretary
APPROVED:
1192-1
071A ,��
Director, Department of Public Works
and Engineering
APPROVED S TO FORM:
Sr. Assistant City Attorney
L.D. File No. 0800100213-003
UNTERSIGNED:
City Controller �..
DATE OF COUNTERSIGNATURE:
VKarcn!Filcsl9AWkCity of Houston Contract Approval QAYTOWN2 DOC 2
10.E 1812006
BUYER'S ACKNOWLEDGMENT
THE STATE OF TEXAS §
COUNTY OF HARRIS §
This instrument was acknowledged before me on November 16, 2006
" (date)
by Robert L. Gillette President of Baytown Area Water
(name)
Authority.
Notaryublic in and for t e
State of Texas
....
10-,. ^' Commission Expires: 10-25-nog
nratmntttrs
It Karcn fii MBAWA'-City of Houston Contract ApprovolWAN TOWN2 DO
10 182006
oann n nnt.'+....n.+n
VIM O LVID r 1W J.0
C.,3If13q
THIRD CONTRACT AMENDMENT '^ l 6 Q r 1
TO THE UNTREATED WATER SUPPLY CONTRACT Or/I
THIS THIRD CONTRACT AMENDMENT TO THE UNTREATED WATER SUPPLY
CONTRACT ("Third Amendment") is made and entered into by and between the CITY OF
HOUSTON,TEXAS ("Seller"),and the BAYTOWN AREA WATER AUTHORITY('Buyer").
WITNESSETH
WHEREAS, Seller and Buyer entered into Contract No. 34739 on or about October 24,
1994, for the purchase of untreated water("Untreated Water Supply Contract"); and
WHEREAS, Seller and Buyer entered into a Contract Amendment to the Untreated Water
Supply Contract on or about January 3,2005 ("First Amendment"); and
WHEREAS, Seller and Buyer entered into the Second Contract Amendment to the Untreated
Water Supply Contract on or about February 28,2007("Second Amendment");and
WHEREAS, Buyer desires to add an additional point of delivery for its proposed east water
plant location and to increase the Contract Quantity by 6 million gallons per day ("MGD"), to be
delivered to said point of delivery; and
WHEREAS, Seller is agreeable to adding an additional point of delivery and increasing the
Contract Quantity by 6 MGD,to be delivered to said point of delivery; and
NOW, THEREFORE, for and in consideration of the premises and mutual covenants and
agreements herein contained,the parties hereby agree as follows:
I.
The definition of the "Point of Delivery" is hereby amended to include the additional
location, in Texas coordinates, to which Seller agrees to deliver Untreated Water to Buyer as more
particularly described in Exhibit "A-I," which is attached hereto and incorporated herein for all
intents and purposes.
Third Contract Amendment to the Untreated Water Supply Contract,Page 1
II.
The definition of the "Point of Measurement" is hereby amended to include the additional
location of the meter(s) at which Buyer's consumption of water is measured and which is more
particularly described in Exhibit"A-1:'
III.
Section 2.1 of the Untreated Water Supply Contract is hereby amended to increase the
Contract Quantity (as defined therein) to 26 MGD, which shall be delivered by Seller to Buyer as
follows: 20 MGD at the Point of Delivery shown in Exhibit "A," which is attached to the Untreated
Water Supply Contract,and 6 MGD at the Point of Delivery shown in Exhibit"A-I."
IV.
The Untreated Water Supply Contract, the First Amendment, the Second Amendment, and
this Third Amendment are the entire agreement of the parties. In the event of any conflict between or
among these documents,the provisions of this Third Amendment shall control.
IN WITNESS W IREOF, the parties have signed this Third Amendment in multiple copies,
each of which shall be deemed an original, but all of which shall constitute but one and the same
contract,as of the date of countersignature.
CITY OF HOUSTON,TEXAS BAYTOWN AREA WATER AUTHORITY
("Seller") ("Buyer")
By: BLIVESTFRK y;
, BRENDA BRADLEY SMITH, President
Third Contract Amendment to the Untreated Water Supply Contract,Page 2
ST: ATTE QF 9AYtOy�
ANNA RUSSELL,City Secretary r ecretary
APPROVED:
Director,Department of Public Works and Engineering
APPROVED AS TO FORM:
Sr.Assistant City Attorney
LD. File No. 06 ft 1017 7,13 ov
C SIG D
477
try o er
DATE OF COUNTERSIGNATURE
K:ttKaren.FilesBAWA City of Houston Contract Approval\AGR Untreated Water Contract BAWA Third Amendment(I1-24-15)SLCdocx
Third Contract Amendment to the Untreated Water Supply Contract,Page 3
�'A11� "All
11
Point of delivery to the Baytown Area Water Authority:
Approximate Texas coordinates:
North East x=3,258,560 y=738,120
South East x=3,258,560 y=735,840
South West x=3,255,730 y=735,890
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CITY OF HOUSTON Sylvester Turner
``� Department of Public Works and Engineering Mayor
Dale A.Rudick,P.E
Director
P.O.Box 1562
Houston,Texas 77251-1562
T.832-395-2500
F.832-392-2480
www.houstontx.gov
February 25, 2016
City Clerk's Office
Baytown Area Water Authority
2401 Market Street
Baytown, Texas 77520
RE: Third Contract Amendment to the Untreated Water Supply Contract Between the City
of Houston and Baytown Area Water Authority; (Contract C34739, Ordinance 2016-0112)
Dear City Clerk:
Transmitted herewith is an original, signed and fully executed third contract amendment for the
subject agreement that was countersigned on February 24, 2016.
Should you have any questions, or require additional information, please contact me at 832-
395-3080 or email veronica.osegueda(cDhoustontx.gov.
Sincerely,
NL� ,.,��.
Veronica R. Osegueda
Administration Manager
Planning and Development Services Division
Enclosure
VRO:smc
c: Yvonne Forrest
Sharon Citino
Mitchell Ramon
Rebekah Daniel
Greg Olinger, P.E., PMP
Contract file
Council Members: Brenda Stardig Jerry Davis Ellen R Cohen Dwight A.Boykins Dave Martin Steve Le Greg Travis Karla
Cisneros Robert Gallegos Mike Laster Larry V.Green Mike Knox David W.Robinson Michael Kubosh Amanda Edwards Jack
Christie Controller: Chris Brown
EXHIBIT "C"
POINT OF DELIVERY TO LAKE MUNICIPAL UTILITY DISTRICT
APPROXIMATE TEXAS COORDINATES:
29.803690, -94.990720 Toyota Dealership
29.803636, -94.991554 Meadowlake Subdivision
29.825321, -94.985268 Highlands Ranch Subdivision
29.812894, -94.996682 Bay River Colony Subdivision
29.796027, -95.037328 West Meadows Subdivision
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