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BAWA Resolution No. 2006-02RESOLUTION NO. 2006-0002 • • A RESOLUTION OF THE BOARD OF DIRECTORS OF THE BAYTOWN AREA WATER AUTHORITY AUTHORIZING AN AMENDMENT TO THE WATER SUPPLY CONTRACT — TREATED WATER WITH COUNTRY TERRACE WATER CO., INC., SUBJECT TO THE APPROVAL OF THE CITY OF HOUSTON AND THE CITY OF BAYTOWN; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ********************************************************************************* BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BAYTOWN AREA WATER AUTHORITY: Section 1: That subject to the approval of the City of Houston and the City of Baytown, the Board of Directors of the Baytown Area Water Authority hereby authorizes an amendment to the Water Supply Contract — Treated Water with Country Terrace Water Co., Inc. A copy of said amendment is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. Section 2: This resolution shall take effect immediately from and after its passage by the Board of Directors of the Baytown Area Water Authority. INTRODUCED, READ and PASSED, by the affirmative vote of the Board of Directors of the Baytown Area Water Authority this the 19th day of April, 2006. ROBERT L. GILLETTE, President LORRI C i i Y, Assistant Secretary APPROVED AS TO FORM: ACIO RAMIREZ, S., General Counsel R:\Karen\Files\BAWA\Resolution\2006\CTWAmendment2 WatersupplyAgreement.doc • • First Amendment to the Water Supply Contract -- Treated Water Country Terrace Water Co., Inc. STATE OF TEXAS § § COUNTY OF HARRIS § This First Amendment to that certain "Water Supply Contract -- Treated Water" 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 63rd Legislature, Regular Session, 1973, hereinafter referred to as `BAWA," and the Country Terrace Water Co., Inc., a Texas corporation having a mailing address of P.O. Box 24433, Houston, Texas 77229, hereinafter referred to as "CTW," is made and entered into by and between the same parties on the date herein after last specified. WITNESSETH: WHEREAS, CTW and BAWA entered into a Water Supply Contract -- Treated Water, dated September 28, 2001, hereinafter referred to as the "Contract," in order for BAWA to supply and CTW to receive treated water not exceeding a monthly average of 0.110 million gallons of water per day; and WHEREAS, CTW has requested that the Contract Quantity be increased to a monthly average of 0.125 million gallons of water per day; and WHEREAS, BAWA is willing to honor CTW's request upon the terms and conditions set forth herein; 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: 1. Definitions. Unless a different meaning clearly appears from the context, words and phrases as used in this First Amendment shall have the same meanings as in the Agreement. 2. Amendment. a. Section 2.01 of Article II "Sale and Delivery of Water" of the Contract is hereby amended to read as follows: 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 CTW, all of CTW's water requirements of treated water at the Points of Delivery at daily rates of delivery; and CTW agrees to purchase from BAWA, all of CTW's treated water requirements for resale at the Points of First Amendment to the Water Supply Contract -- Treated Water, Page 1 EXHIBIT A • • Delivery during the term of this Contract. It is expressly agreed to and understood that BAWA shall not be obligated to deliver to CTW treated water in excess of the Contract Quantity which shall be the monthly average per day of 0.125 MGD. b. Section 6.01 of Article VI "Measuring Equipment" of the Contract is hereby amended to read as follows: 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 standards type for measurijg 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 $AWA, 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. 3. Generally. 3.01 Interpretation. This Amendment has been jointly negotiated by the parties hereunder and shall not be construed against a party hereunder because that party may have assumed primary responsibility for the drafting of this Amendment. 3.02 Captions. Captions contained in this Amendment are for reference only and, therefore, have no effect in construing this Amendment. The captions are not restrictive of the subject matter of any section in this Amendment. 3.03 No Waiver. By this Amendment, BAWA does not consent to litigation or suit, and BAWA hereby expressly revokes any consent to litigation that it may have granted by the terms of this Amendment, the Contract or any other contract or agreement or addenda, any charter, or applicable state law. Nothing contained herein shall be constructed so as to limit or waive BAWA's sovereign immunity. 3.04 Construction. The provisions of this Amendment and the provisions of the Contract should be read together and construed as one agreement, for this amendment is meant to supplement but not replace any provision in the Contract, except as specifically noted herein. IN WITNESS WHEREOF, the parties hereto have executed this Amendment in multiple copies, each of which shall be deemed to be an original, but all of which shall constitute but one and First Amendment to the Water Supply Contract -- Treated Water, Page 2 • • to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this day of , 2006. Notary Public in and for the State of Texas My commission expires: R:\Karen\Files\BAWA\Amended Contracts 2006\FirstAmendment2WaterSupplyContract-CTW.doc First Amendment to the Water Supply Contract -- Treated Water, Page 4