BAWA Resolution No. 2023-13 RESOLUTION NO. 2023-13
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE BAYTOWN
AREA WATER AUTHORITY AUTHORIZING A WATER SUPPLY
CONTRACT — TREATED WATER WITH HARRIS COUNTY WATER
CONTROL AND IMPROVEMENT DISTRICT NO. 1, 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 a Water Supply
Contract—Treated Water with Harris County Water Control and Improvement District No. 1. A
copy of said contract 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 16"' day of August, 2023.
�� /BRENDA BRADLE SMITH,President
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ANGEL CKSO , Assistant A�rt�,
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APPROVED AS O FO M.
SCOTT LtM ND, General Counsel
R:1DeniseURESOLUTIONS1202318AWA108.161WaterSupplyContract-Treated Water-HC WaterCaarol&lmprove.District 1..docx
EXHIBIT "A"
Water Supply Contract
Potable Water (Treated)
Harris County Water Control and Improvement District
No. 1
STATE OF TEXAS §
COUNTY OF HARRIS §
This Water Supply Contract—Potable 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 63rd Legislature, Regular Session, 1973, hereinafter
referred to as"BAWA,"and Harris County Water Control and Improvement District No. I a Texas
corporation having a mailing address of 125 San Jacinto Avenue, Highlands, Texas 77562,
hereinafter referred to as "BUYER."
WHEREAS, BAWA entered into The Untreated Water Supply Contract, amended by the
First Amendment, the Second Amendment, and Third Amendment with the City of Houston
(Houston Contract)to buy non-potable water; and
WHEREAS,BAWA constructed and will continue to maintain,repair,construct and modify
certain facilities to treat and deliver water to its customers at several points of delivery; and
WHEREAS, BUYER has constructed or contracted with BAWA to construct certain
facilities to enable BUYER to receive potable water from BAWA; and
WHEREAS, BAWA contracted to sell quantities of potable water to BUYER,on September
17,2003,through Water Supply Contract--Treated Water,Water Harris County Water Control and
Improvement District No. I agreement, amended on January 27, 2017 to increase the contract
quantity of million gallons of water per day monthly average allotment ("Initial Agreement, as
amended"); and
WHEREAS, BAWA desires to continue to sell quantities of potable water to BUYER
under the general terms of Initial Agreement, as amended; and
WHEREAS,BUYER desires to continue to purchase from BAWA its potable water subject
to the terms and conditions contained herein; which are generally the same terms of Initial
Agreement, as amended; and
WHEREAS,BUYER is authorized to enter into a contract for the purchase of potable water
from BAWA pursuant to Chapters 49 and 51 of the Texas Water Code; and
WHEREAS,BAWA and BUYER have found,and do hereby find,that BAWA and BUYER
are authorized by the laws of the State of Texas to enter into a contract for the sale of potable water
upon such terms and for the period of time hereinafter set forth; and
WHEREAS, Houston's city attorney,pursuant to Houston Contract,agrees to the form 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
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 between the City of Houston
and Baytown Area Water Authority,dated October 24, 1994,as amended,between BAWA,
as buyer, and the City of Houston, Texas, as seller, a copy of which is attached hereto and
incorporated herein for all intents and purposes as Attachment 1.
1.03 "Besinnina Date" shall mean the date that BUYER begins receiving potable 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 VIII.
1.04 "BUYER's Facilities"shall mean facilities constructed by BUYER to enable BUYER
to receive potable water.
1.05 "Contract Quantity"shall mean the maximum quantity of potable water that BAWA
agrees to reserve and sell to BUYER pursuant to Section 2.01 herein.
1.06 "Contract Term" is defined in Article V111.
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 BUYER.
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.
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1.09 "Point of Delivery"shall mean those delivery points as indicated on Exhibit A,which
is attached hereto and incorporated herein for all intents and purposes, to which BAWA
agrees to deliver potable water to BUYER.
1.10 "Point of Measurement" shall mean the location of the meter at which BUYER's
consumption of water is measured, more particularly described in Exhibit A.
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,
as 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 unpotable water purchased by
BAWA pursuant to BAWA's Contract, and
(c) to distribute, sell and deliver potable water to BUYER pursuant to the terms
of the Contract.
1.12 "Service Area"shall mean the area within the boundaries more particularly described
in Exhibit B, 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 Health and Human Services 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 BUYER, all of BUYER's water
requirements of potable water at the Points of Delivery at daily rates of delivery;and BUYER agrees
to purchase from BAWA, all of BUYER's potable 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 BUYER potable water in excess of the Contract Quantity which shall
be the monthly average per day of 0.850 MGD.
2.02 The Points of Delivery for potable water sold under this contract shall be designated
in writing by BUYER;Both BAWA and BUYER agree that BUYER selects and shall be the Points
of Delivery indicated on Exhibit A,which is attached hereto and incorporated herein for all intents
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and purposes; provided, however, BAWA reserves the right to reject any Point of Delivery
designated by BUYER 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 potable water to any of its
customers. Additionally, BUYER may give BAWA notice in writing of any additional or change in
Point(s) of Delivery designated by BUYER, 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 Potable water may be delivered to BUYER from any source or combination of
sources available to BAWA.
2.04 The potable 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 BUYER within the Service Area.
2.05 If BUYER wishes to reserve for itself additional monthly quantities of potable water,
BUYER must notify BAWA in writing of BUYER's desire to do so. The General Manager may,at
his discretion after considering the potable water requirements of BUYER and BAWA's obligations
and commitments, increase the quantity of potable water supplied to BUYER;provided, however,
that BAWA shall be under no obligation to deliver potable water in excess of Contract Quantity.
BAWA may, at its discretion, discontinue delivery of such additional monthly requirements of
potable water by giving BUYER thirty (30) days' written notice.
2.06 BUYER 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
BUYER.
ARTICLE III
RATES AND PRICES
3.01 Any request by BUYER to increase the MGD delivered under this agreement may be
subject to a reservation fee or capital improvement fee,and the request must be agreed to in writing
as an amendment or addendum to this agreement.
3.02 Whenever BUYER'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.
3.03 All water sold and delivered by BAWA to BUYER for which BUYER is obligated to
pay hereunder shall be sold to BUYER at the rate of$3.46 per one thousand gallons.
3.04 The amount of water delivered to BUYER shall be measured by the metering
equipment located at the point of delivery.
3.05 Additionally,BUYER understands and agrees that BAWA may at any time,by order
duly enacted, increase or change the price or prices for potable water as set forth in this article;
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provided,however that except where an independent rate analysis conducted by a qualified concern
indicates that certain rate increase is required, the price or prices for potable water shall not be
increased percentagewise to BUYER during any twelve(12)month period of this contract in excess
of the percentage rate increase in BAWA's water rates to other purchasers of potable water during
the same period.
ARTICLE IV
REPORTS
4.01 Within fifteen(15)days after the end of each quarterly period during the term of this
Contract, BUYER shall furnish BAWA with a statement under oath showing the quantities and
sources of all water for use or resale by BUYER.
ARTICLE V
MEASURING EQUIPMENT
5.01 At its own cost and expense,BUYER shall furnish and install at the Point of Delivery
hereunder,measuring equipment properly equipped with meters,totalizers and devices of standards
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
BUYER,and all measuring equipment shall be located at the Point of Delivery as shown on Exhibit
A. At its own cost and expense,the water system 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 BUYER, but shall be approved by BAWA.
5.02 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. BUYER may have access to all records pertinent to determining the
measurement and quantity of potable water actually delivered hereunder, but the reading of the
measuring equipment for purposes of billing shall be done by BAWA.
5.03 After approved installation thereof,BAWA shall maintain the measuring equipment
within the accuracy tolerance specified in Section 5.04 by periodic tests. BAWA 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. BAWA agrees to properly test said
measuring equipment at BAWA's cost when requested to do so by BUYER once every twelve(12)
months. If BUYER requests an additional test within twelve (12) months, BAWA shall charge
BUYER 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,
BUYER 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.
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5.04 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 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 AW WA 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 potable
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) AW WA-specified test flow rates for that size and type of meter.
5.05 In the event of a dispute between BAWA and BUYER 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 BUYER and BAWA and shall be conducted by an independent
measuring equipment company suitable to both BUYER and BAWA. The cost of such test shall be
at BUYER's sole expense.
5.06 BUYER may install, at its own cost and expense, such check meters in BUYER'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 VI
BILLING AND PAYMENT
6.01 As used in this Article VI, 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.
6.02 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.
6.03 The quantities of potable water for which payment is due by BUYER hereunder in
any month shall be the total quantity of potable water delivered to BUYER in such month
determined by the measuring equipment described in Article V hereof.
6.04 BAWA shall bill BUYER at BUYER'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 day after receipt of such statement.
6.05 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.
ARTICLE VII
TITLE TO AND RESPONSIBILITY FOR WATER
7.01 As between BAWA and BUYER, BAWA shall be in exclusive control and
possession of, and solely responsible for, all potable 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.
7.02 BAWA MAKES NO WARRANTY,EXPRESS OR IMPLIED,REGARDING THE
QUALITY OR DELIVERY PRESSURE OF POTABLE WATER, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.03 With respect to all water handling facilities located between the Point of Delivery and
the Point of Measurement, BAWA and BUYER specifically agree:
(a) 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;
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Renewal-Water Supply Contract,Potable Water Harris County Water Control and Improvement District No. 1.and Baytown
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(b) that BUYER shall take all reasonable steps to maintain such facilities and to prevent
leaks or discharges from such facilities;
(c) that BUYER 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 BUYER 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;
(c) that BUYER 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 BUYER 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 VIII
TERM
This Contract shall be in force and effect beginning on the date of execution by BAWA until
December 31, 2040, at 8:00 a.m.
ARTICLE IX
PERFORMANCE BY BAWA AND BUYER
9.01 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 BUYER under this Contract. In case of temporary shortage of water,
notwithstanding BAWA's compliance with the portions of this Article IX, 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.
9.02 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, BUYER covenants and
agrees that it shall take potable 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. BUYER covenants and agrees that such
potable water shall be sold, distributed or used and ultimately consumed only for residential
household or other strictly municipal purposes exclusively within the Service Area. No extension of
these boundaries may be made by BUYER without written consent of BAWA as well as the written
consent of the San Jacinto River Authority and City of Houston,when required pursuant to the Water
Supply Contract between the City of Houston and BAWA, dated October 24, 1994, as amended.
BUYER agrees to include covenants similar to those contained in this Section 9.02 in any sales or
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contracts for sale of water by BUYER to any other entity. BUYER 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.
BUYER understands and agrees that BAWA, the City of Houston and/or the San Jacinto
River Authority may enforce the covenants contained in Section 9.02 herein by an action brought
directly against BUYER. In the event that BAWA and/or the City of Houston maintains any legal
proceeding to enforce such covenants, BUYER 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.
9.03 BUYER 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 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 9.02 herein. BUYER 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 attorney's fees,and all other remedies available to the City of Houston and/or
the San Jacinto River Authority. BUYER 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 BUYER, or any purchaser of water from or
through BUYER, to comply with such restriction and limitation. 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, BUYER 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. BUYER agrees to submit the wording of such covenants for the
approval of BAWA prior to entering into such contracts.
BUYER 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 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 9.02 herein. BUYER 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 attorney's fees, and all other remedies available to the San Jacinto
River Authority. BUYER 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 BUYER,or any purchaser of
water from or through BUYER, to comply with such restrictions and limitations. 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, BUYER 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. BUYER agrees to submit the wording of
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Renewal-Water Supply Contract,Potable Water Harris County Water Control and Improvement District No. 1.and Baytown
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such covenants for the approval of BAWA and the City of Houston prior to entering into such
contracts.
9.04 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 BAWA be unable to deliver the Contract Quantity of water for any reason. BUYER
shall bear all costs of maintaining and supplying such emergency sources of supply.
ARTICLE X
ENVIRONMENTAL CONSIDERATIONS
10.01 On or before the first anniversary of the effective date of this contract,BUYER 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, BUYER shall adopt an amended plan and submit the same to the
appropriate authority for review and approval.
10.02 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
BUYER and the third party, providing for the implementation and continued compliance with a
water conservation program consistent with the requirements of the TCEQ.
ARTICLE XI
REMEDIES UPON DEFAULT
11.01 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 (30) days or more, BAWA shall
give written notice to BUYER specifying the matter with respect to which BUYER is in default and
requesting that the same be remedied with promptness and dispatch. In the event BUYER, 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 potable water to BUYER hereunder; and in the
event such default on the part of BUYER continues for an additional thirty(30)days,BAWA may,
by an additional written notice to BUYER,cancel and terminate this contract,whereupon all rights
of BUYER 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.
11.02 During any monthly period in which BAWA is unable to deliver to BUYER,
BUYER's daily requirements of water,whether as a result of temporary curtailments resulting from
temporary shortages as provided in Section 11.01 hereof or of force majeure as provided in Article
XII hereof,BUYER shall be obligated to pay BAWA only for the quantities of potable water actually
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Renewal-Water Supply Contract,Potable Water Harris County Water Control and Improvement District No. 1.and Baytown
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delivered to BUYER under this contract during such month. During any such period,BUYER shall
be free to obtain potable water from other sources.
11.03 The failure of either party to insist in anyone 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 otherparty
hereto,but the obligation of such other party with respect to future performance shall continue in full
force and effect.
ARTICLE XII
FORCE MAJEURE
12.01 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
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 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.
12.02 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, lighting, 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.
12.03 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.
12.04 BUYER shall not be guaranteed any specific quantity or pressure of water whenever
BAWA's potable 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 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
I
Renewal-Water Supply Contract,Potable Water Harris County Water Control and Improvement District No. 1.and Baytown
Area Water Authority
such interruption cannot otherwise reasonably be avoided. BAWA shall schedule interruptions in
advance after consultation with BUYER.
ARTICLE XIII
ADDRESS AND NOTICES
13.01 Until BUYER is otherwise notified in writing by BAWA, the address of BAWA is
and shall remain as follows:
Baytown Area Water Authority
Attn: General Manager
2401 Market Street
Baytown, Texas 77520
Until BAWA is otherwise notified in writing by BUYER,the address of BUYER is and shall
remain as follows:
Harris County Water Control and Improvement District No. 1.
Attn: President
125 San Jacinto Avenue
Highlands, Texas 77562
13.02 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 XIV
MISCELLANEOUS PROVISIONS
14.01 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 BUYER shall have the right, without any
consent of BAWA 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 be, or hereafter
become a party;provided that,BUYER'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 BUYER's obligations
hereunder;and provided,further,however,that no successor or assignee of BUYER 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.
14.02 This Contract shall be for the sole and exclusive benefit of BAWA and BUYER and
shall not be construed to confer any rights upon any third party, except as expressly provided in
12
Renewal-Water Supply Contract,Potable Water Harris County Water Control and Improvement District No. 1.and Baytown
Area water Authority
Article IX. BAWA shall never be subject to any liability in damages to any customer of BUYER for
any failure to perform under this Contract.
14.03 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.
14.04 This instrument contains all the agreements made between the parties concerning the
sale and delivery of water by BAWA to BUYER at the Point of Delivery set out in this Contract.
14.05 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.
14.06 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.
14.07 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 parry 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.
14.08 The parties acknowledge that they have read, understand and intend to be bound by
the terms and conditions of this Contract.
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:
SCOTT LEMOND, General Counsel
13
Renewal-Water Supply Contract,Potable Water Harris County Water Control and Improvement District No. 1.and Baytown
Area Water Authority
HARRIS COUNTY WATER CONTROL AND
IMg CT NO. L
t ature
X 60H W. /l/I vGL%t1S
'Printed Name
eA
itle
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me, Lc�sy c '�O.vy"' the undersigned notary public, on this day
personally appeared `-e oy,\Z_ "\t in his/her capacity as'�Ce5i b�- of Harris
County Water Control and Improvement District No. 1
known to me
proved to me on the oath of or
proved to me through his 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)
(Select one)
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 A_day of J ulu ,2023.
tESLIE FAVORS o ary PublicYn and for the State of Texas
_*.. My Notary ID 4128343274
6F Exp"skgust13,2o28 My commission expires: Nkqu zy
CITY OF HOUSTON
APPROVED TO CONFORMING TO
REQUIREMENTS OF CONTRACT
NO. 34739, SECTIONS 9.2 AND 9.3:
ARTURO G. MICHEL,City Attorney
14
Renewal-Water Supply Contract,Potable Water Hams County Water Control and Improvement District No.1.and Baytown
Arcs Water Authority
ATTACHMENT 1
HOUSTON AGREEMENT, AS AMENDED
CONTRACT AMENDMENT
o �- � � a�
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 VIII of the Water Supply Contract is amended by extending the
termination date to December 31, 2040.
WWc2Vitigation'K=n\Filn\Contmcts\BA WA Conlna with City or IIWston4BAYTOWNC1un.D0C
1 11/32004
III.
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.
\\BdcNidpdon\Kar XFila\Con=c¢\BAWA Coo=twish City of Now1oMBAYTOWNCIcan.DOC
2 11/312004
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 9n�
President
ATTEST:
Z&uA
G1AR W. SMITH City Secretary
assistant Secretary
APPROVED AS TO FORM: APPROVED:
413NACIO RAMIREZ, SW. Director, Department of Public
General Counsel Works and Engineering >7a
APPROV9 AS TO FORM:
%SrAsant City Attorney
UNTERSIGNATURE:
Yj�oL"Zzz) .
C-1
Cont* r
COUNTERSIGNATURE DATE:
\\Bdc2%litipuon\Kamn\File\Cotitmct\BA WA Commct with City of HoostontBAYTOWNCIMMOC
3 11/3/2004
BUYER'S ACKNOWLEDGMENT
THE STATE OF TEXAS §
COUNTY OF HARRIS §
This instrument was acknowledged before me on Near 4, 9004
(date)
by Robert L. Gillette President of Baytown Area
(name)
Water Authority.
SYLVIA ANN AGU R
Notary P blic in d fo e
e Notary Pu AA
blic.Stal of texas ry
< r t JAY Commission E -es 10252015
State of Texas
Commission Expires: October 25, 2005
\\&Ic2\litigation\K=n\Film%ConlmcM\BA W A Contract with City of Nouston\OAYTOWNCIuan.DOC
4 11133/2004
C3g73 ?
SECOND CONTRACT AMENDMENT
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.
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.
RaKamn)FilcstBAWA\City of Ifouston Conimct Approt21\BAYT0RN2.D0C l
10/18/2006
IN WITNESS WHEREOF, the Parties have signed this Second Amendment in nn116111c
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
ST/SEAL: ATTEST/SEAL:
By. �,c ¢I%Cit.,Secretary Name: Peter R. Buenz
Title: Secretary
APPROVED:
Director, Department of Public Works
and Engineering
APPROVED,AS TO FORM:
Sr. Assistant City Attomey
L.D. File No. 08001 002 1 3-003
UNTERSIGNED:
City Controller .d`?
DATE OF COUNTERSIGNATURE:
�-a8-off
RAKarcn\files\BA WA\City of Houston Contract Approval\BAYTOWNIDOC 2
10/18/2006
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.
0U1j Liz/
otary u for t e
>i o Stale of Texas
J; y
Taf''•., SPAtE�2�ry
10 Commission Expires: 10-25-2009
RAKmmn\Fi1c\BA WA\City of fiousion Comma Appwva1\BAYT0WN2.D0C 3
10/18/2006
Milky njo FKj, o
C �� a3i2-
THIIiD CONTRACT AMENDMENT
TO THE UNTREATED WATER SUPPLY CONTRACT a
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
II.
The definition of the "Point of Measurement' is hereby amended to include the additional
location of the meter(s) at which Buyers 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-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 dale 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
EST: A"ITE
qF 9AYMTOIyT
1
ANNA RUSSELL,City Secretary ecretary
\�S
APPROVED:
Qj,--A
-
/11ft_ Director,Department of Public Works and Engineering
APPROVED AS TO FORM:
Sr.Assistant City Attorney
LD.File No. 080v I C7V Z 13 rv4
C S G D•
�7 ✓
rty •o er
DATE OF COUNTERSIGNATURE
RAKarenTileMBAWA\City or Houston Contract AppmvaRAGR_Untreated Water Conuact_BAWA_ 1ird Amendment(11-24-15)SLC.docx
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
EXHIBIT A-1
�o
4k
The point represents both the
Point of Measurement
and Point of Delivery
13AWA EAST- SWTP 3274064.668, 13841871.251
6 MGD (NAD 83 - Texas South Central)
Miles
0 0.05 0.1 0.2 0.3 0A Date:12tMO15
rID«//O hJ,3 La
,l4(\ItJl.ti ;�";".. c t'IHic+rt7 LVLO t •1
j ; p,a 1111�
CITY OF HOUSTON Sylvester Turner
Department of Public Works and Engineering Mayor
It
Dale A.Rudlck,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.oseoueda(ahoustontx.gov.
Sincerely,
Na,� �r�
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., PIMP
Contract file
Council Members: Brenda Stardlg Jerry Davis Ellen R.Cohen Dwight A.Boykin Dave Martin Steve Le Greg Travis Karla
Cisneros Robert Gallegos Mike Lester Larry V.Green Mice Knox David W.Robinson Michael Kubosh Amanda Edwards Jack
Christie Controller. Chris Brown
E IBIT'A'
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