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Ordinance No. 2,0836995 ORDINANCE NO. 2083 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, APPROVING AND AUTHORIZING THE EXECUTION OF A SURFACE WATER SUPPLY CONTRACT BETWEEN THE CITY OF HOUSTON AND BAYTOWN AREA WATER AUTHORITY; AND PROVIDING FOR THE EFFECTIVE DATE HEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF I,011VbMMii Section 1: That the City Council of the City of Baytown, Texas, hereby approves and authorizes the execution of a surface water supply contract between the City of Houston and Baytown Area Water Authority. A copy of the above referred to contract is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: This ordinance shall take effect from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown on this 23rd day of September , 1976. TOM GENTRY, Mayor ATTEST: In EI EN P. HALL, City Clerk APPROVED: NEEL VZee CHIARDSON, City Attorney M n> E X H I B I T "A" 6996 +�-- OTIS H. KING CITY ATTORNEY W1 1 Mr. Neel Richardson Attorney for Baytown Area Water Authority P. 0. Box 424 Baytown, Texas 77520 Dear Mr. Richardson: LEGAL DEPARI'NIENT P. O. BOX 1562 HOUSTON, TEXAS 77001 TELEPHONE 713 7.22-5151 August 30, 1976 6997 You have asked for an interpretation of certain sections of the proposed water supply contract between the Baytown Area Water Authority and the city of Houston. Your question is whether or not the ten percent (10%) additional charge prescribed in Section 3.1 would be applicable in the following situation: 1. The. quantity of water taken during a monthly period by Buyer exceeds, by ten percent or more, the minimum monthly quantity specified by the contract for that monthly period;. and 2. The quantity of water so taken is less than or equal to an increased minimum monthly quantity previously requested by Buyer or the remaining term of the contract pursuant to Section 2.3 herein; and 3. Seller either has not made - or cannot make - a firm commit- ment to supply the increased minimum monthly quantity; and 4. During the times that Buyer is taking the increased quantity, there is a sufficient supply of uncommitted water available for sale to Buyer. In this situation, it would be my recommendation that the 10; • additional charge not be applied. S'ncerely, L James L. Dougherty, Jr. Assistant City Attorney JLD,JR: aln y 6998 WHOLESALE NATER SUPPLY CONTRACT UNTREAMD IV ITER THE STATE OF TEXAS I COUNTY OF HARRIS Z This contract made and entered into on the date hereinafter last specified by and between the City of Houston, 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 Nater Authority, a governmental agency and a body politic and corporate which is situated and has its principal office at Baytown, Harris County, Texas, (hereinafter called "Buyer"). WI TNESSETH: WHEREAS, Seller has the right under certain water permits.to divert waters from the Trinity River, the Lake Livingston Reservoir and the Wallisville Reservoir as well as from the San Jacinto watershed and other sources or from combinations thereof; 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 will, subject to approval of the voters of the City of Baytown of a contract for treated water from the Baytown Area Nater Authority, construct certain facilities to enable Buyer to receive the aforementioned water, treat it so as to make it potable, and distribute its,and WHEREAS, Seller is desirous of selling large quantities of untreated water from such source or sources to Buyer, and Buyer is, subject to the above, desirous of purchasing from Seller its untreated water requirements 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 6999 period of time as are hereinafter set forth, and Seller and Buyer specifically contemplate the provisions of Articles 4413(32c) and 1109e-1, Texas Revised Civil Statutes, 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 conditional permission to Seller to sell water to Buyer and which requires Seller to pay to the San Jacinto -River Authority the sum of Fifty ($50.00) Dollars per day during the`term of this contract in consideration' of the granting 11 of said conditional permission; 0 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. "Minimum monthly quantity" shall mean the minimum quantity of water which Buyer is obligated to take and pay for, or to pay for, if not taken, during any calendar month under -the provisions of. Article III hereof. 2. "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. Article 11 Sale and Delivery of Water Subject to the terms and conditions of this contract, Seller agrees to sell and deliver (or cause to be delivered) to Buyer, Buyer's water -2- r 7000 reauirements of untreated water as hereinafter set forth in the -respec- tive minimum monthly quantity, at a point of delivery provided for in Section 2.4 herein, and Buyer agrees to purchase from Seller, Buyer's untreated water requirements as hereinafter set out for resale during the term of this contract in the respective minimum monthly quantities and at the respective times hereinafter set forth. The quantities of untreated water to be purchased by Buyer and sold by Seller hereunder shall at all times during the term hereof equal or exceed ninety percent (90%) of Buyer's monthly total water requirements. Buyer's total untreate� water requirements shall mean the total quantity of untreated water Buyer needs to conduct operations, use, or resell within the boundaries of the Baytown Area Water Authority. 2.2 Notwithstanding the provisions of Section 2.1, above the minimum monthly quantity of untreated water Buyer is obligated to purchase from Seller, or pay for, whether taken.or not, shall be: Initial*delivery through 3rd year thereafter 6 MGD 4th year through 7th year 8 MGD 8th year through llth year 10 MGD 12th year through 15th year 13.MGD 16th year through 20th year 16 MGD To determine -the minimum monthly quantities for Buyer, the minimum in terms of MGD (from the above -tabulation) shall be multiplied by the number of days in the month. As used herein, "Initial Delivery" means the date on which Buyer is ready to receive untreated water from Seller, of which date Buyer shall give Seller six (6) months advance notice, but which in no event shall be later than December 31, 1980, subject to the provisions of Section 13.4 herein. 2.3 In the event Buyer wishes to reserve for itself additional monthly minimum quantities of untreated mater during any of the time periods set forth in Section 2.2 it may notify Seller in writing of its desire to do so, and in the event Seller then has untreated water -3- �J E 7001 available for sale to its customers, it will enter into a suitable amendment hereof with Buyer increasing the minimum monthly take or pay commitment of Buyer for the remaining period of the term of this contract. In the event however, the total requirements of purchasers from Seller plus Seller's other obligations or commitments with respect to untreated water exceed the quantity of such water Seller has available for sale or delivery, Seller may pro rate such additional requirements among its customers and its other obligations on a fair and equitable basis. 2.4 The point of delivery for untreated water sold under this contract shall be designated by Buyer at a point immediately adjacent to the Coastal Industrial Water Authority Canal between the points marked "X" and'"Y" on the attached Exhibit "A", PROVIDED, HOWEVER, that Seller reserves the right to reject any point of delivery -designated by Buyer which would, in effect, interfere with or increase the cost of any other facilities or operations which Seller might wish to construct or implement, or plan to construct or implement, along or in connection with said Canal. Buyer agrees to give Seller notice in writing of any point of delivery designated by Buyer, and Seller agrees to accept or reject such point of delivery by a prompt response in writing. In the event.that Buyer should fail to designate a point'_of delivery acceptable to Seller by the date of Initial Delivery (as defined in Section 2.2 herein) Seller may designate the point of delivery for Buyer, and such designation shall be forever binding on Buyer. 2.S Buyer covenants and agrees to construct and operate a reservoir and/or forebay between the point of delivery and Buyer's treatment facilities. Said reservoir and/or forebay shall be of sufficient capacity -to insure that the rate of withdrawal of untreated water from the Coastal Industrial Water Authority Canal shall at all times be reasonably steady and even. Buyer agrees to submit plans of said reservoir and/or'forebay to Seller for the approval of Seller prior to the commencement of construction of said reservoir and/or forebay. -4- 7002 Thereafter, Buyer agrees to construct and operate said reservoir and/or forebay in accordance with the plans so approved. Article III Rate and Prices 3.1 All water sold and delivered by Seller to Buyer or which Buyer is obligated to pay for hereunder, whether taken or not, shall be under and subject to the provisions and in consideration of the price or prices set forth in Chapter 49, Article II, Division 2, entitled "Charges for Untreated plater", of the 1968 Code of Ordinances of the City of Houston, as it may be amended, the provisions of which are incorporated herein by reference as fully and completely as if copied herein in full. Whenever the quantity of water taken during a monthly period by Buyer exceeds by ten percent (10%) the minimum monthly quantity obli- gation of Buyer designated herein, an additional charge of ten percent (10%) upon the entire monthly charge will be made over what the monthly charge would be as determined from the Block Schedule applicable to Buyer. 3.2 By reason of Buyer's commitment herein, the block schedules or rates applicable to contracts wherein the Buyer agrees to.purchase at least ninety percent (90%) of all its monthly water requirements from Seller shall apply. The initial block schedule applicable to Buyer shall be Ordinance Schedule B thereof. 3.3 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 such block schedules, provided, however, that except where an independent rate analysis indi- cates that a certain rate increase is required, the price or prices for untreated water shall not be increased percentagewise as to Buyer during any 12 month period of the term of this contract in excess of the proportionate percentage rate increase in Seller's domestic potable water rates approved within such twelve (12) month period. -5- 7003 3.4 The total price or charge to Buyer for water hereunder shall be the price or prices for grater referred to in Section 3.1, 3.2 or 3.3 above. Article IV Reports Within thrity (30) days after the end of each quarterly period during the term of this contract Buyer shall furnish Seller'with a satement, under oath, showing the quantities and sources of all water treated for use or resale by Buyer. Article V I Measuring Equipment 5.1 At Buyer's own cost and expense, Buyer shall furnish and install at the point of delivery hereunder, measuring equipment properly equipped with meters, totalizers and recording devices of standard type for measuring and -recording accurately the quantity of water delivered under this contract, the meters to 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, and Buyer shall also install, operate and maintain, as required by Buyer, pressure regulating devices and equip- ment. Such measuring equipment shall be approved by Seller, and.after Seller's approval of the installation, shall become, the property of Seller 5.2 During all reasonable hours, Seller and Buyer and.the Trinity River Authority of Texas shall have access to such measuring equipment so installed. Buyer shall have access to all records pertinent to determining the measurement and quantity of untreated water actually delivered hereunder, but the reading of the meters for purposes of billing shall be done by Seller. 5.3 After approved installation thereof, Seller shall perform, at its own cost and expense, periodic calibration tests on the primary measuring equipment so installed in order to maintain the accuracy rem 7004 tolerance within the guarantees of the manufacturer thereof, not to exceed a tolerance of two percent (2%), at least once every twelve (12) months. At reasonable intervals, Seller agrees to properly check and calibrate the flow recording and totalizing measuring equipment for the purpose of ascertaining their condition of accuracy. Seiler agrees to notify Buyer at least forty-eight (48) hours in advance of the time any test is to be made, to permit Buyer to observe such test and to furnish Buyer a copy of the results of all checks and calibration tests performed on said measuring equipment. If any tests'or calibration checks -show ' a condition of inaccuracy, adjustments shall be made immediately so said measuring equipment will register correctly within the aforesaid accuracy' tolerance -of two percent (2%) plus or minus, for a given rate of flow. In addition, Buyer shall have the right to independently check said measuring equipment at any time upon notification to Seller or its authorized representative. 5.4 Seller may install, at its own cost and expense, such check meters in Buyer's pipeline or canals as may be deemed appropriate and Seller shall have the right of ingress and egress to such check meters during all reasonable hours; provided, however, that billing,computation shall be on the basis of the results of the measuring equipment set forth in Section 5.1 above. 5.5 If, upon any test; the percentage of inaccuracy of any measuring equipment is found to be in excess of five percent (5%) for the aforesaid given rate of flow, then Buyer's account shall be adjusted for a period extending back to the time when such inaccuracy began, if such time is ascertainable, and if such time is not ascertainable, for a period extending back one-half (1/2) of the time elapsed since the date of the last test, or, the date of the last adjustment to correct the registration, whichever is later, not to exceed forty-five (45) days_ If, for any reason, the measuring equipment is out of service or out of repair and the amount of untreated water delivered cannot be ascertained or computed from the reading thereof, mater delivered during the period -7- 7005 shall be estimated and agreed upon by the parties hereto on the basis of the best data available. 5.6 As used in this Article V. the expression "given rate of flog" means the total quantities of untreated water delivered during the preceding period (usually a calendar month) as reflected by the recording devices, divided by the number of days in the period. Article VI Billing and Payment -- 6.1 As used in this Article VI, the term'" day" shall mean a period of twenty-four (24) consecutive hours beginning at 8:00 o_'clock a.m. on one calendar day and ending at 8:00 o'clock a.m. on the next succeeding calendar day, and the term "month" shall mean a period beginning at 8:00 o'clock a.m. on the first day of a calendar month and ending at 8:00 o'clock a.m. on the first day of the next succeeding calendar month, except that the first month or partial month shall begin on the day of initial delivery of water hereunder, and the minimum monthly payment, if any, shall be prorated for such partial month. 6.2 The measuring equipment shall be read ori the day at the end - of each month (or at such period of frequency arranged between the parties' at 8:00 o'clock a.m., or as near thereto as practicable. 6.3 The quantities of untreated water for which payment is due by Buyer hereunder in any month shall be the greater of: (a) the total quantity of untreated water delivered to Buyer in such month determined as set forth in Article V hereof; or (b) the total quantity of untreated hater Buyer is obligated to take hereunder, or pay for if not taken,. in such month, pursuant to the provisions of Section 2.2 hereof. 6.4 Seller shall render to Buyer at Buyer's principal office as specified in Article XIII hereof on or before the tenth (10th) day of am 7006 each calendar month a statement shoeing the quantity of untreated water for which payment is due hereunder during the preceding month_ Payment of such statements shall be due and payable to Seller at its offices in Houston, Harris County, Texas, on or before the twentieth (20th) 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 (10%)per annum from the date when due until paid. 6.6 In the event Buyer fails to tender payment of any amount when due and such failure continues for forty-five (45) days after notice in writing to Buyer of such default, Seller may suspend,delivery of untreated water hereunder, but the exercise of such right shall be in addition to any other remedy available to Seller. Article VII Title to and Responsibility for Water 7.1 Title to, possession and control of water shall remain.in Seller, or its assigns, to the point of delivery as provided in Section 2.4 hereof where title to, possession and control of water delivered under this contract shall pass from Seller to Buyer, and Buyer will take such title, possession and control at such point of delivery. 7.2 As between the parties hereto, Seller shall be in exclusive control and possession of the water deliverable hereunder and solely responsible for any damage or injury caused thereby until the same shall have been delivered to Buyer at such point of delivery, after which delivery Buyer shall be in exclusive control and possession thereof and solely responsible for any injury or damage caused thereby, and each party respectively shall save and hold the other party harmless from all claims, demands and causes of action which may arise while said water is under its respective ownership and control. Article VITT Term This contract shall be for a term of twenty (20) years beginning on the date of Initial Delivery. -9- 7007 Article IX Performance by Seller and Buyer 9.1 Seller 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 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 S.039(a) of the Texas Water Code.. It is_ specifically agreed and understood that this agreement contemplates that Buyer will treat/ and resell the water pur- chased pursuant to the terms hereof. 9.2 Pursuant to that certain contract entered by Seller and the San Jacinto River Authority, a copy of which is attached hereto for All purposes, and -notwithstanding any other provision of this contract to the contrary, Buyer covenants and agrees that it takes 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 for distribution through the municipal water systems of such local governmental entities; such water to be used for municipal purposes (as defined by Rule 129.01.15.001-.041, promulgated by the Texas Water Rights Commission on December 1, 1975) and for no other purposes, and only within the boundaries of the Baytown Area Water Authority as such boundaries existed on June 1, 1976; PROVIDED, HOWEVER, 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 on the west, Archer Road on the south, and Cedar Bayou on the east, 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 to any other entity. Buyer agrees to submit the wording of such covenants for the approval of Seller. -IO- r• 7008 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 dale 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 usedin 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 totally 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. Article X Remedies Upon Default 10.1 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 (30) days or more, Seller shall give written notice to Buyer specifying the matter with respect to which Buyer is in default and -11- 7009 requesting that the same be remedied with promptness and dispatch. In the event Buyer within sixty (60) days after the mailing of such notice by Seller to Buyer has failed to remedy the matter in default, Seller may suspend further delivery of untreated water to Buyer here- under; and in the event such default on the part of Buyer continues for an additional thirty (30) 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. 10.2 During any monthly period in which,Seller is unable to deliver to Buyer on each day the minimum MGD specified in Section 2.2' hereof, whether as a result of temporary curtailments resulting from temporary shortages as provided in Section 9.1 hereof or of force majeure as provided in Article XI hereof, Buyer shall be obligated to pay Seller only for the greater of (a) the quantities of untreated water actually delivered to Buyer under this contract during such month or (b) the mini- mum monthly quantity of water which Buyer is obligated to take and pay for, or pay for, whether taken or not, during such month multiplied by a fraction, the numerator of which is the number ozE calendar days in the month in which there is no curtailment and the denominator of which is the number of days in the calendar month. During any such period, Buyer rN shall be free to obtain untreated crater from other sources. 10.3 The failure of either party to insist in any one or more instances upon performances 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 XI Force Majeure 11.1 In the event either party is rendered unable, wholly or in part, by force majeure, to carry out any of its obligations under this -12- , 7010 contract, or in the event Buyer is rendered unable, wholly or in part, by force majeure to operate Buyer's treatment facilities, it is agreed that on such party's giving notice and full particulars of such force majeure in writing or by telegraph to the other party as soon as possible after the 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. (IPII 11.2. The term "force majeure", as used herein, shall include but not be limited to, acts of God, strikes, lockouts or other industrial is distrubances, 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. 11.3 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 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 in inadvisable in the discretion of the party having the difficulty. Article XII Addresses and Notices 12.1 Until Buyer is otherwise notified in writing by Seller, the address of Seller is and shall remain as follows: -13- 7011 City of Houston Water Division P. 0_ Box 1562 Houston, Texas 77001 Until Seller is otherwise notified in writing by Buyer, the address of Buyer is and shall remain as follows: Baytown Area Water Authority 2401 Market Street P. 0. Box 424 Baytown, Texas 77520 12.2 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 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 respec- tively shall designate by written notice. Article XIII Miscellaneous Provisions 13.1 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 wra.tten 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 of 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, PROVIDED, FURTHER, however, that no successor or assignee of Buyer shall be entitled to receive water under t.iis -14- " 7012 .contract unless and until the San Jacinto River Authority shall have given its written consent to the sale of water to said successor or assignee. 13.2 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 13.3 This instrument contains all the agreements made between the parties. 13.4 It is specifically agreed and understood that this contract is subject to and shall not be effective until approval of a contract be- tween the Baytown Area Nater Authority and the City of Baytown by the voters of the City of Baytown as provided in Chapter 600, Acts of the 63rd Legislature, Regular Session, 1973. The contract between the Baytown Area Water Authority and the City of Baytown shall include provisions which provide: 1. That for five (5) years beginning with the. initial delivery date, the City of Baytown will make advance payments to the Baytown Area Water Authority for the estimated quantities of water it expects to take, and further, that the City of Houston who will be furnishing the water that Baytown Area Water Authority will sell and deliver to the City of Baytown, shall be a Third Party Beneficiary for the term of such contract as to any funds to be paid by the City of Baytown for such water to the Baytown Area Water Authority. 2. That the foregoing provision is for the benefit of the City of Houston to induce Houston to contract for the sale of water -15- to the Baytown Area Water Authority and to secure the payment of the sums which shall become due under such contract between the City of Houston and the Baytown Area Water Authority. 3. That the City of Baytown will comply with the restrictions and limitations on sale of water, in substantially the same form as they appear in Section'9.2.herein, and that the City of Baytown will indemnify and hold the City of Houston harmless from and against the expenses and liability set out in Section 9.4 herein. 7013 If such approval by the voters of the City of Baytown has not been obtained.within six (6) months after date of execution by the Mayor of the City of Houston, this Contract shall be'null and void. IN WITNESS WHEREOF, the parties hereto have executed 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, this day of A.D..1976, the date of execution by the Mayor of the City of Houston. ATTEST: CITY SECRETARY CITY OF HOUSTON, TEXAS (SELLER) By: M- AYOR -16- r 1 IN ATTEST: 70I4 BAYTOWN AREA WATER AUTHORITY, BAYTOWN, HARRIS COUNTY, TEXAS (BUYER) Paul R. Jason, Secretary By: E. C. Ksmmons, Jr., President APPROVED AS TO FORDS AND SUBSTANCE: SAN.JACINTO RIVER -AUTHORITY ATTEST: :.. Vice -President . Secretary APPROVED AS TO FORM: Assistant City Attorney. -17- 7015 THE STATE OF TEXAS X COUNTY OF HARRIS BEFORE ME, the undersigned authority, on this day personally appeared FRED HOFHEINZ, Mayor of the CITY OF HOUSTON, TEXAS, known to me to be the person whose name is subscribed to the fore- going instrument, and acknowledged to me that he executed the same for -the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said CITY OF HOUSTON, TEXAS. GIVEN UNDER hiY HAND AND SEAL OF OFFICE] this - day of 1976.. Notary Public in an& for. Harris County, Texas THE STATE OF COUNTY OF BEFORE ME, the undersigned authority, on this day personally appeared , of , known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 1976. Notary Public in and for -18 - AMENDATORY CONTRACT BETWEEN SAN JACINTO RIVER AUTHORITY AND THE CITY OF HOUSTON, TEXAS THE STATE OF TEXAS COUNTY OF HARRIS � 7016 THIS CONTRACT executed as of the day of 1976, by and between the SAN JACINTO RIVER AUTHORITY, ("SJP.A") 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 governnental 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 on the west, Archer Road on 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 BA14A include appropriate covenants on 7017 the Dart of BA14A 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 such payments to SJR_4 shall not extend beyond a period of 20 years. Payment shall be made on a quarterly basis, on or before the 10th day of the month following each calendar quarter. -2- ter. �. �� '• 7018 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 BAJA 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 SJR -A. 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 March 27, 1944, contract shall remain in full force and effect. IN WITNESS I -THEREOF, the parties hereto, acting under the authority of their respective governing bodies have caused this contract to be executed on this 7' day of 1976, in duplicate originals, each of which shall constitute an original. ATTEST: BY. Secretary SAN JACINTO RIVER AUTHORITY. B Y Vice -pre ent CITY OF HOUSTON A�69 ATTEST: By .a r .By City Secretary COUi:TERS I GRED: r�r� i•'r G�—City Controller