Ordinance No. 2,1667254
ORDINANCE NO. 2166
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING AND DIRECTING THE MAYOR OF THE CITY
OF BAYTOWN TO EXECUTE AND THE CITY CLERK TO ATTEST TO A
"WATER SUPPLY CONTRACT -- TREATED WATER" WITH THE
BAYTOWN AREA WATER AUTHORITY, AND PROVIDING FOR THE
EFFECTIVE DATE HEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown,
Texas, hereby approves a "Water Supply Contract -- Treated
Water" with the Baytown Area Water Authority. A copy of
said contract is attached hereto, marked Exhibit "A," and
made a part hereof for all intents and purposes.
Section 2: That the Mayor and City Clerk of the City
of Baytown are authorized and directed to execute and attest
to said contract with the Baytown Area Water Authority.
Section 3: That 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 this 27th day
of January , 1977.
TOM GENTRY, ffayor
ATTEST:
EI EEN P. HALL, City Clerk
APPROVED:
NEEL RI AR ON, City Attorney
EQ
E X H I B I T "A"
7255
VSK91
WATEP, SlIP13LY CONTRACT
TREATED V.ATER
THE STATE OF TEXAS X
X
COUNTY OF HARRIS X
THIS WATER SUPPLY CONTRACT - TREATED MATER (here-
inafter called the "Contract ") made and entered into on the
date hereinafter last specified by and between the BAYTOM4
ARE-E.71 11ATE_t AUTHORITY, a governl;iental agency and a body poli-
tic and corporate of the State of Texas, created pursuant to
Chanter 600, Acts of the 63rd Legislature, Regular Session,
1973 (hereinafter called the "Act "), which has its principal
office at Baytown, Harris County, Texas ( hereinafter called
the "Seller ") , and the CITY OF BAYTO`RN, TEXAS, a municipal
ccr =oration and home rule city which is principally situated
ana ^as its City Hall in Harris County, Texas (hereinafter
called the "Buyer"). ,
W I T N E S S
For and in consideration
mutual covenants and agreements he
hereto do hereby mutually agree as
E T H:
of the premises and the
rein contained, the parties
follows:
ARTICLE I
Definitions
Unless a different meaning or intent clearly ap-
pears from the context, the following words and terms shall
have the meanings specified in this Article, respectively:
Bonds -- Bonds or other evidences of indebtedness,
including notes, issued by the Seller pursuant to the Act
and the terms of this Contract, (1) which, together with the
interest thereon, are to be paid from the payments of Pledged
Revenues (hereinafter defined) to be made by the Buyer
pursuant to this Contract and (2) which have been issued and
sold to acquire funds to (a) make, purchase, construct,
lease, or otherwise acquire the Project (hereinafter delf.-ined),
(b) complete such making, purchasing, constructing, leasing,
or acquiring, (c) enlarge, expand, or modify the Project,
(d) reconstruct the Project, or (e) refund any Bonds.
Bond Resolution any resolution or resolutions
adopted by the governing body of the Seller which authorize
the issuance of Bonds pursuant to this Contract and pro-
viding for their security and payment, as such resolution
or resolutions may be amended from time to time as therein
permitted.
Costs of the Project -- The coats incurred or to
be incurred by the Seller or the Buyer � -d th respect to the
acquisition of the Project, whether incurred prior to or
after the date of this Contract and including, but not
limited to, the following items:
(1) obli.gaticns for labor, ;-tiaterials, ser-
vices, and equipment;
(2) rf):its of any bonds and ns'.:ra ce t1.2
cos- of which is not othcr,.:ise provided =o�-;
L T
7257
(3) Costs of engineering services, including
costs for preliminary design and development work,
test borings, surveys, estimates, plans and speci-f-
ications, supervising construction, and performing
all other duties required by or consequent upon
proper construction;
(4) Expenses incurred in connection with the
issuance and sale o` the Bonds, including without
limitation (a) gees and expenses of accountants,
auditors, attorneys, underwriters, engineers, and
financial advisors, (b) materials, supplies,
printing, and engraving, (c) recording and filing
fees, (d) rating agency fees, and (e) initial fees
and expenses of a trustee, if any;
(5) Costs required
terms of any contract or
with the Project;
to be paid under the
contracts in connection_
(6) Sums required to reimburse the Seller or
the Buyer for advances made by either of them for
any of the above items, including fees of any kind
for any other cost incurred, including expenses
for organization of the Seller, overhead expenses,
and expenses for any work done by either the
Seller or the Buyer which are properly chargeable
to the Project; and
(7) Costs of all other items related to the
acquisition of the Project.
Pledged Revenues --- The payments to be made by the
Buyer to the Seller for treated water and pledged in a Bond
Resolution for payment o_ the principal of, premium, if ahy,
and interest on the Bonds issued pursuant to the terms of
this Contract, including particularly Article IV.
Project -- The.property, works; facilities, and
improvements (whether previously existing or to be made,
constructed, or acquires), within or without the boundaries
of the Seller, necessary (1) to acquire surface Crater
supplies from sources both within and without the boundaries
of the Seller, including particularly the sources provided
by the Seller's Contract (hereinafter defined), (2) to
+, conserve, store, transport, treat, and purify untreated
water purchased by the Seller pursuant to the Seller's
Contract, and (3) to distribute, sell, and deliver treated
crater to the Buyer pursuant to the terms of this Contract.
While the engineering, planning,•and design of the Project is
not complete as of the date hereof, the Project is presently
contemplated to consist of (1) property, works, facilities,
and improvements to accept untreated water at a point of
delivery pursuant to the Seller's Contract, (2) pipelines
and canals, (3) a reservoir and /or forebay between such
point of delivery and the Seller's treatment facilities, and
(4) certain water treatment facilities (initially planned to
be a 13 million gallon per day facility), and may be revised
as described in Section 3.02 hereof. The Project will be
more specifically described in engineering reports prepared
from time to time by the Seller's engineers.
Seller's Contract -- The Wholesale Water Supply
Contract - Untreated 1•61ater, dated as of November 1, 1976,
between the Seller, as buyer, and the City of Houston, Texas
(hereinafter called "Houston ") , as seller, a copy of %•:hick
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%258
is attached hereto as Exhibit A and incorporated herein by
reference and made a part hereof for all purposes.
Seller's Cost -- The cots to be incurred by the
Seller in the perfor=mance of its obligations under this .
Contract, including (1) the Pledged Revenues as described in
Section 5.02 hereof with respect to all outstanding Bonds,
(2) maintenance, operational, and administrative costs, and
(3) the cost of untreated water pursuant to the Seller's Con-
tract, including any penalty or interest incurred by the -
Seller by reason oL the Buyer's acts.
ARTICLE II
Sale and Delivery of Treated Water
Section 2.01. Subject to the terms and conditions
o- this Contract, the Seller agrees to sell and deliver (or
c = -se to be delivered) to the Buyer treated water for muni-
cipal purposes, at a point designated in writing by the
L,:-,er and agreed to in writing by the Seller, and-the Buyer
agrees to purchase _ronI the Seller, treated water for muni --
ci?al purposes, at such point designated by the Buyer,
during the term of this Contract.
Section 2.02. The parties hereto specifically
agree and understand that pursuant to the Seller's Contract,
the Seller is obligated to purchase from Houston, or pay
for, whether taken or not, certain quantities of water
throughout the term of the Seller's Contract, and the parties
hereto recognize that the Seller's Cost includes specifically
the Buyer's proportionate share of the costs of such un-
treated dater to the Seller.
ARTICLE III
Construction of the Project ~'
Section 3.01. The Seller agrees to proceed promptly
with the acquisition and construction of the Project with
the proceeds of the Bonds or, at the option of the Seller,
other money lawfully available for such purpose. The Seller
does not anticipate any delays in commencing or completing
the Project, but the Seller shall not be liable to the Buyer
for any damages occasioned by the acquisition, construction,
or completion of the Project or any delays in completion of
the Project.
Section 3.02. if the Seller desires to materially
revise the scope of or the plans and specifications for the
Project, such proposed revisions shall be submitted to the
Buyer for approval_ If the Buyer approves such revisions, the
Project shall be modified. No such mcdification shall, however,
revise the Project in such a manner as to change the purpose
of the Project from receiving, treating, and supplying.
surface ;rater for the benefit of the Buyer.
ARTICLE IV
Pates and Prices
Section 4.01• The Buyer hereby agrees to pay the
Seller's Costs through the establishment of rates for the
! purchases: of treated water and by subsequent payments to the
Seller based on such established rates. The Seller and the
Buyer shall . periodic, lly establish rates for the purchase of
! treated •cater. .
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7259
Section 4.02. The parties hereto specifically
agree and understand that as of the datf hereof, the Buyer
is the Seller's o.-.1y customer for the purchase of treated
water, but that there may be other customers in the future.
For so long as the Buyer is the Seller's only such customer,
the Buyer's prorated share of the Seller's Costs shall be
"^
100%. From and after the time that tine Seller has other
customers for the purchase of treated water, however, the
Buyer's pr orated share of the Seller's Costs shall be a
fractional part thereof determined by dividing the quantity
of the Buyer's purchase of treated water (in millions of
gallons of crater per day), as determined on an averace.over
a period of time agreed to by the Seller and the Buyer, by
the total quantity of treated water sold by the Seller (in
millions of gallons of Water per day) , as similarly deter -
mined, and by multiplying such quotient by the Seller's
Costs during the period of time agreed to.
ARTICLE V
Issuance and Sale of the Bonds;
the Buyer's Paymer_ts'of
Pledged Revenues and Other Amounts
Section 5.01. Pursuant to the authority granted
by the Act, the Seller agrees, upon the request of the
Buyer, to issue and sell, from time to time; Bonds in amounts
sufficient to provide the Project and pay the Costs of the
Project. The Bonds'shall have the form and characteristics;
bear .the designation; bear the date or dates; mature at such
time or times, serially, term, or otherwise, in not more -
than forty (40) years from their dates; bear interest at the
rate or rates, payable annually, semiannually, quarterly, or
otherwise; be in the denominations; be in the form, either
coupon or registered; carry the registration privileges.as
to principal only or as to both principal and interest and
as to successive exchange of coupon for registered bonds or
notes or vice versa, and successive exchanges of bonds or
notes of one denomination for bonds or notes of other denomi-
nations; be executed in the manner; be payable at the place
or places within or without the state; and be sold for the
price or prices, all as provided in the Bond Resolution.
Section 5.02. (a) In consideration of the Seller's
agreement to issue the Bonds, and as a part of the Seller's
Costs, the Buyer agrees to pay (i) Pledged Revenues to the
Seller pursuant to and in accordance with the terms of any
Bond Resolution and (ii) the periodic fees, charges, and
expenses of any trustee and paying agents in connection
with the Bonds. The amount of the Pledged Revenues to be
paid by the Buyer may be increased from time to time by the
issuance and sale of additional Bonds.
(b) The Buyer shall pay the Pledged Revenues in
the amounts and at the times designated in any Bond Resolu-
tion.
(c) In the event the Buyer should fail to make
any payment required by this Section, such.payment shall
continue as an obligaticn of the Buyer until such overdue
amount shall have been fully paid.
Section 5.03. (a) The parties to this Contract
recognize that the Bonds may be secured by a trust indenture
with respect thereto and the payments of the Pledged Revenues
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7260
may be pledged therein. The Buyer_ expressly consents to
such procedure and will comply with any such trust indenture
securing the Fonds. The parties to this Contract recognize
the necessity of complying with all requirements of any such
trust indenture, including the right of the trustee under
any such indenture to require increases or to permit de-
creases in the amount of the Pledgr:d Revenues and other
payments and to enforce any remedies described therein.
(b) The parties to this Contract further recognize
that, from the proceeds of the sale of the Bonds, the Seller
may establish a reserve fund or funds -in the amount or
ariou_ts and for the purpose or purposes set out in any Bond
Resolution. Such reserve fund or funds shall be used for
the payment of any maturing principal of and interest on the
Bonds when the acaount in the applicable interest and sinking
fun: is insufficient, or for the payment of the last maturing
Zr,-_cipal of and interest on the'Bonds. The Seller shall
invest and reinvest, or cause to be invested or reinvested,
the reserve fund or funds in accordance with law, and the
income therefrom may be periodically transferred to the
interest and sinking fund applicable to the Bonds; or, ir.
the event that the parties hereto so determine, a reserve
fund or funds in an amount or amounts different from the
aforementioned amou_it may be established and the income f rcr .
investment of such additional amount may be deposited in such
reserve fund. --- -_ -._- .
Section 5.04. The source of funds for the Buyer
to make the payments of the Pledged Revenues shall include-
any and all available sources that the Buyer may pledge
toward such payments, including gross revenues of apzronriate
utility systems and those sources provided by Chapter 54,
Texas Water. Code, and Article 1109j, Vernon's Texas Civil
Statutes, as amended.
Section 5.05. (a) A substantial draft of any
Bond Resolution, showing the principal amount of and interest
rate on the Bonds, the maturities of the Bonds, the name of
the purchaser thereof, and other pertinent features, must be
delivered to and approved by the Buyer prior to the issuance
of any Bonds to be so authorized.
(b) The parties to this Contract agree and under -
°^ stand that the holders of the Bonds shall rely upon such
approval of the Buyer and upon Buyer's promise to pay the
Pledged Revenues specified herein. .Therefore, the Buyer
covenants and agrees that such payments of the Pledged
Revenues shall be made regardless of the status of the
acquisition of the Project and without setoff or counterclaim
and, notWithstanding any other provisions of this Contract,.
the holders of the Bonds shall be entitled to rely upon the
foregoing agreements and representations regardless of any
other agreements between the Seller and the Buyer.
ARTICLE VI
Measuring Equipment
if and when the Seller has customers for treated.
water other than the. Buyer, the Buyer shall furnish and
install at the point of deliver, of treated ..rater measuring
equipment equal to the measuring equi.pmont required by the
Seller of other customers and shall perform such periodic
calibration tests on such equipment so installed as recurred
by the Seller of all of its customers for treated ovular.
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7261
ARTICLE VII
Billing and Payment
Section 7.01. On or before the 15th day of each
calendar month, the Seller shall render to the Buyer., at the
Buyer's office, a statement for the amount owing by the
Buyer to the Seller for treated water_, pursuant to Article
IV hereof, for the preceding month. Payment of each such
statement shall be due and payable to the Seller at its
offices in Baytown, Harris County, Texas, on or before the
10th day after receipt of such statement.
Section 7.02. The parties to this Contract agree
and understand that pursuant to the terms of the Seller's
Contract, the Seller will be liable to pay interest (to the
extent not prohibited by lace) at a rate of loo per annum on
any delinquent bill from the date such bill is due until
paid, and that, if the Seller fails to tender payment to
Houston of any amount when due, and such failure continues
nor 45 days after notice in writing to the Seller by Houston
of such default, Houston may suspend delivery of untreated
water. Therefore, the Buyer hereby specifically agrees to
pay an amount equal to any penalty assessed because of any
delav caused by the Buyer in payment by the Seller to
Houston.
ARTICLE VIII
Title to and Responsibility for Water
Title to and possession and control of treated
water delivered under this Contract shall pass from the
Seller to the Buyer at the point of delivery established
between the parties.
ARTICLE IX
Term
This Contract shall be for a term of twenty (2 0 )
years beginning on the date of initial delivery of untreated
water by FIous tor. to the Seller, as defined in the' Seller' s
Contract; provided, however, that this Contract shall con-
tinue in effect until all of the Bonds are paid.
ARTICLE X
Performance by the Seller and the Buyer
Section 10.01. The parties to this Contract .
specifically understand that in the Seller's Contract, the
Seller has agreed as follows:
(a) That the Seller t,
limited purpose off treating
as potable treated water to
local governmental entities
through the municipal water
governmental entities;
BLkes
and
the
f or
Sys
_water for the -
selling the same
Buyer and other
distribution
tems of said local
(b) That such water is to be used for
municipal purposes only (as defined by Rule
129.01.15.001 -041, promulgated by the Texas I•later
Rights Co.nmissi.on on December 1, -1975) and for no
other purposes, and only within the boundaries oL
IM
7262
the Seller, as such boundaries existed on June 1,
1976;
(c) That no such water shall be sold, dis-
tributed, or used other than for residential
household and other strictly domestic purposes
within the area bounded by Interstate Highway
No. 10 on the north, Sjolarder Road on the crest,
Archer Road on the south, and Cedar Bayou on the
east, without the written consent of the San
Jacinto River Authority (hereinafter called 11SJ ?A11)
and Houston;
(d) That Houston or SJRA may enforce-the
provisions of the Seller's Contract against the
Seller and that the Seller will indemnify Houston
in the amount of all expenses relating'to the
legal proceedings, including, but not linited to,
costs of court and reasonable attorneys fees;.
(e) That Houston may be liable to SJRA for
monetary damages in the event that the Seller (or
any purchaser of water from or through the Seller)
fails to comply with the restrictions set forth in
Section 9.2 of.the Seller's Contract; that the
Seller acknowledges that such monetary damages
would amount to seventy -five (750) percent of the
consideration or revenue received by Houston for
the estimated amount of water distributed, sold,
or used in violation of such restrictions or
limitations, plus all litigation expenses, rea-
sonable attorney fees, and all other remedies
available to SJRA; that the Seller agrees to
totally indemnify and save Houston harmless from
and against any such expenses and liability which
Houston might incur, or any loss Houston might
suffer, as a result of any failure by the Seller,
or any purchaser of water from or through Seller,
to comply with such restrictions and limitations;
and
(f) that the Seller further agrees to include
covenants in any sales or contracts for sale of
water by the Seller to any other entity to insure
that said other entity will likewise indemnify and
save Houston harmless and submit the wording of
such covenants for approval by Houston.
Section 10.02. As a result-of the agreements by
the Seller described in the preceding section, the Buyer
hereby agrees to abide by all restrictions placed on the
sale of water contained in the Seller's Contract and further
agrees to totally indemnify and save harmless both the
Seller and Houston from and against any expense and liability
which either might suffer as a result of-any failure of the
Buyer to comply with such restrictions.
ARTICLE XI
Addresses and notices
Until the Buyer is otherwise notified in u'ritirg
by the Seller, the address of t:ie Seller is and shall renain
as follot.ti•s :
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7263
Bayto:•In Area Water Authority
2401 Market Street
P. O. Box 424
Bayto-e ., Texas 77520
Until the Seller is otherwise notified in writing by the
Buyer, the address of the Buyer is and shall remain as
follocrs :
City of Baytown
2401 Market Street
P. O. Box 424
Baytown, Texas 77520
ARTICLE XII
Miscellaneous Provisions
Section 12.01. This Contract shall be subject to
all present and future valid laws, orders, rules, and regula-
tions of the Unites: States of America, the State of Texas,
and of any regulatory body having jurisdiction.
Section 12.02. This instrument contains all of
the agreements made between the parties.
Section 12.03. The parties to this Contract agree.
and understand as ollows:
(a) that for Live (5) years beginning with
the initial delivery date, as specified in the
Seller's Contract, the Buyer will make advance
payments to the Seller for the estimated quantities
of water the Buyer expects to take during each
billing period;
(b) that Houston, which is furnishing water
to the Seller, shall be a Third Party Beneficiary
for tre terns of` this Contract as to any funds .
paid by the Buyer for such water to the Seller for
water;
(c)' that this provision is for the benefit
of Houston to induce Houston to contract for the
sale of water to the Seller and to secure payment
of the surfs wh ich shall become due under the
Seller's Contract; and
(d) thaw the Buyer will comply with the
restrictions and limitations on the sale of mater,.
in substantially the form as they appear in Section
9.2 of the Seller's Contract and that the Buyer
will indemni -fy and hold Houston harmless as de-
scribed in Section 9.4 of the Seller's Contract.
Section 12.04. zf any word, phrase, clause,
paragraph, sentence, part, portion, or provision - of this
Contract, or the application thereof to any circumstance,
shall be held to be invalid, the parties hereto declare that
this Contract vrou1d have been entered into without such
invalid provision. The parties hereto agree that all pro- -
visions of this Contract should be liberally construed to.
effectuate the pu-rposes hereof.
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7264
ARTICLE XIII
Approval and Amendment
Section 13.01. Pursuant to the terms of the Act,
prior to the entering of this Contract, elections must be
held within the Buyer to authorize entering into this Con-
tract.
Section 13.02. This Contract may be amended by
the duly authorized written agreement of the parties hereto;
provided, however, that, pursuant to the terms of the Act,
no election, as described in the preceding section, shall be
required at such times of amendment.
IN WITNESS WHEREOF, the parties hereto have exe-
cuted this Contract in multiple copies, each of which shall
be teemed to be an original, but all of which shall con -
st.i -ute but one and the same contract, this day of
, A.D. 1977, the date of execution by the Mayor
of the City of Baytown.
ATTEST:
Peter Buenz, Secretary
ATTEST:
BAYTOWN AREA WATER AUTHORITY
By
President
CITY OF BAYTOWN
By
Tom Gentry, Mayor
Eileen P. Hall, City Clerk
APPROVED AS TO FORM:
City Attorney, City of Baytown
APPROVED AS TO CONFORMITY WITH SECTION 9.2 AND 9.4 OF THE
CONTRACT BET117EEN THE BAYTOWN AREA WATER AUTHORITY AND THE
CITY OF HOUSTON DATED NOVEMBER 1, 1976:
CITY OF HOUSTON
ATTEST:
By
Mayor
City Secretary
APPROVED AS TO FORM:
City Attorney, City of Houston
• E X H i B I T. "A"
7265
7266
',•'HOT ESALE ATER SUPPLY CONTRACT
U,tiTi:EAT - StiATER
THE STATE OF TEXAS Z
COU;;TY OF HARRIS Z
This contract made and entered into on the date hereinafter last
specified by and beta een 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 11later Authority, a governmental 'agency and a body politic and
1
corporate �,hich is situated and has its principal office at Baytown,
Harris County, Texas, (hereinafter called "Buyer").
1,71 TNES SETH: r
WHERLAS, Seller has the right under certain Crater permits to
divert waters from the Trinit=y 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
11MEREAS, Seller has constructed and is constructing certain
facilities -to enable delivery of the aforementioned grater to Buyer, at
a single point of delivery, and Buyer will, subject to approval of the
voters of the City of Bayto :rn, of a contract for treated 1 :•ater from the
Bayto;•.n Area Water Authority, construct certain facilities to enable
Buyer to receive the aforementioned urater, treat it so as to make it
potable, and distribute it; 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 £ran Seller its untreated e=ater
• requirements for treatment. and resale; and
WHEREAS. Seller and Buyer have found, and do herr:by find, that
Seller and Buyer are authorized by the Laws of the State oz Texas to
enter into contracts for the sale of water upon such terms and for the
•• .. .. ,. .72.5 7
period of time as are hereinafter set fortli, and Seller nrld 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 naking 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 tern of this contract in consideration of the granting of
said conditional permission;
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.
W
"AIGD" 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 tine 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 PIGD for a calendar month, for example,
is calculated as follows: Two million gallons multiplied by the number
of days in such calendar month.
Article IT
Sale and Delivery of hater
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
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EM
7268
requirements of untreated water as hercx�t�sz- set forth-in the respec-
tive »inimum monthly quantity, at a point of delivery provided for in
Section 2.4 herein, and Buyer agrees to purchase from Seller, Buyer's
untreated dater 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 u ater to be purchased by Buyer and sold by Seller hereunder
shall at all times during the term hereof equal or•exceecl ninety percent
(90%) cf Buyer's monthly total seater requirements . Buyer's total untreatE
water re aireme -nts shall mean the total quantity of untreatedl 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
lS'th year -
13
hiGD
16th
year
through
20th year
16
14GD
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 t�rhich 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 water 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 untrcrzted water
-3-
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7 2.6 9
av:Lilahle for sale to its customers, it will enter into a suitable
amendnent hereof with Buyer increasing the r1iniMum ,:zo;Lt;ily t�.kc or pay
coinmitment of Buyer for the. remaining period or the teri*1 of this contract.
In tale event however, the rtotal 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 1,11ater 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 o£.
any other facilities or operations which Seller might_u ish to construct
or implement, or plan to construct or implement, along or in connection
with said Canal. Buyer agrees to give Seller notice in ti•rriting of any
oint of delivery designated by Buyer, and Seller agrees to accept or
P
reject such point of delivery by a prompt response in writing..
In the event that Buyer should fail to designate a point of deliver;
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.
2.5 Buyer covenants and agrees to construct and operate a reservoi
and /or forebay beta een 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 withdraw al of untreated water
from the Coastal Industrial Water Authority Canal shall at all tunes
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-
7270
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 o,--r prices set forth in Chapter 49, Article II, Division 2,
entitled "Charges for Untreated Water ", 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
C.
(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 bloc]; schedules
or rates applicable to contracts urherein 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, hosever, 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 tern of this contract in excess or th
proportionate percentage rate increase in Seller's domestic potable
viater rates approved %- iititin st:ch tl' -elve (12) iionr-h period.
-S-
7 271
�. •0 Tile total price or charge to Buyer for :rater hereunder
shall be the price or prices for hater 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 dater
treated for use or resale by Buyer.
Article V :
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 grater 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 Selle
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 neasurement 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 Olin cost and expense, periodic ;.,J.ibration, tests on the prinary
measuring equipment so installed in order to maintain the accuracy
72l2
tolerance i:ithin the guara. ^.tees of the manufacturer thereof, not to
exceed a• tolerance of t; :o percent (2%) , a.t least once every tvielve (11_)
months. At reasonable intervals, Seller agrees to properly check and
calibrate the flotr recording and totalizing measuring equipment for the
purpose of ascertaining their condition of accuracy. Seller agrees to
notify Buyer at least fort}- 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 ressuring 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 neasu:ing 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 urhen such inaccuracy began,
if such tins is ascertainable, and if such time is not ascertainable,
for a period extending bac;c one -half (1/2.) of the time elapsed since
the date of the lest test., or, the date of the last adjustment to correct
the registration, ti:hichever 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 o= untreated t:ater delivered cannot be ascertained
or computed fro-.3 the reading thereof, iiater delivered during the period
-7-
- 7221
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
flow" 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 ti:enty -four (24) consecutive hours beginning at 8:00 o'clock
a.m. on one calendar day and ending at 5:00 o'clock-a.m. on the next
succeeding calendar day, and the term "month" shall mean a period-
beginning at 5:00 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 ofi 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 mater delivered to
Buyer in such month determined as set forth in
Article V hereof; or
(b) the total quantity of untreated water Buyer is
obligated to tale hereunder, or pay for if not taken,
in such month, pursuant to the provisions of Section
2.2 hereof.
_MN 6.4 Seller shall render to Buyer at Buyer's principal office as
specified in Article \III hereof on or before the tenth (10th) day of
' -S-
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7274
each calendar month a statement shoW in1; the quantity of untreated v.,ater
for which payment is dice hereunder duri.nc, the preceding month. Pay „gent
of such statements shall he due and payable to Seller at its offices
in Houston, 'Harris County, Texas, or. or before the to.entieth (20th) day
after receipt of such statement.
6.S Should Buyer fail to tender payment of any amount .hen clue,
interest thereon shall accrue at the rate of ten percent (10o)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 (4S) 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 eater shall -remain l.n.
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 i -rater Ls under its respective ounership and control.
Article VIII
Term
This contract shall be for a tern of twenty- (20) years beginning
on the date of Initial Delivery.
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72 . 7 5
Article IY
Performance by Seller and Buyer
9.1 Seller covenants and agrees that it urill 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 eater 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 5.039(a) of the
Texas {aver Code_ It.is specifically agreed and understood that this_..*
agreement contemplates that Buyer will treat and resell the crater pu.r-
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 tares water . under
this contract from Seller for the limited purpose of treating and selliiit
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, HQ;7E�rFR,
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, Siolander Road
on the irest, Archer Road on the south, and Cedar Bayou on the easy,
without the written consent of the San Jacinto River Authority and Selle
Buyer agrees to include covenants similar to those container? in
th-s 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 approlral of Seller-
_10-
7276
Buyer understands and agrees that either Seller or the a;u:
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 indennify Seller ill 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 ilrer Authority.for monetary damages in the•event that Buyer_.
(or any purrchaser of eater from or through Buyer) fails to comply with .
the restrictions and limitations on the sale of hater set out in
Section 9.2 herein. Buyer acknowledges that such monetary damages would
(' amount to seventy -five percent (750) of the consideration or revenue
received by Seller for the esti:lated amount of ;eater distributed, sold,
or used in violation of such restrictions or limitations, plus all'
litigation expenses, reasonable attorney fees, and all other -remedies
available to the San Jacinto River Authority. Buyer hereby agrees to
totally indemnify and save Seller harmless from and against any such
expenses and liability irhich 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
for sale of water by Buyer to any ot]
AWN
other entity will likewise indemnify
agrees to submit the wording of such
Article
M
covenants in any sales or contracts
ter entity to insure that said
and save Seller harmless. Buyer
covenants for the approval of.Seller
X
Remedies Upon Default
10.1 In the event of any default by Buyer in the performance of any
of Buyer's obligations hereunder ti�.hich 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
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7277
0
requesting that the same be remedied with pronptr.ess a;. , ?isputch_
In the event Buyer tirithin sixty (60) days after the mailing of such
notice by Seller to Buyer has failed to remed;, the natter in default,
Seller may suspend further delivery of untreated u ater 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 writ-ton
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 XT 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 rnini-
mum monthly quantity.of water which Buyer is obligated to take and_pay
for, or p.ay for, whether taken or not, during
CP
such month multiplied by
a fraction, the numaerator of which is the number of calendar days in the
month in which there is no curtailment and the denominator of iihich is
the number of days in the calendar month. During any such period, Buyer
shall be free to obtain untreated grater 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 tiraiver 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 Maj eure
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
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contract, or in the event Buyer is rendered unable, wholly or in 'part,
by force majeure to operate Buyer's treatment facili.ti-cs, it is agreed
that on such party's giving notice and full pt:rticulars 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, tllcn 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.
11.2 The term "force majeure ", as used herein, shall include but
not be limited to, acts of God, strikes, lockouts or other industrial
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,-
equip -gent, 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 h,ving
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 \II
Addresses and Notices
12.1 Until Buyer is otherwise notified in writing by Seller, the
address of Seller is and shall remain as follows:
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7279
City of llous ton 1 ater Dig• i.sion
P. 0. Box 1562
Houston, Texas 77001
Until Seller is Otherwise notified in writing by Buyer, the address
Of Bu:•er is anti shall remain as folloi -.s :
Baytown Area S';ater Authority
2401 Market Street
P. 0. Box 424
Baytown, Texas 77520
12.2 All written notices, statements and payments required or
permitte-' 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.tlie 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 written
consent of the other; provided, however, that Buyer shall have the right, -
zyithout 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 o: 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, hot,:eVer, that no successor
or assignee of Buyer shall be entitled to receive tirater under this
-14-
7280
contract unless ;Mtit the San Jacinto River Authority shall have
givcll its written consent to the sal.c of mater to said successor or
assi;;nee.
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 jurisdictio
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-
(m,, tween the. Baytown Area Water Authority and the City of Baytorm 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 later Authority and the City of Baytoitin 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 beater 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 Mater
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 eater to the Baytot•.n 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 mater
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to the Baytown Area Plater Authority and
to secure the payr►ent of the suns which
shall become due under such contract
between the City of Houston and the
Baytown Area lVater Authority.
3. That the City of Baytown will cor.)ply with
the restrictions and limitations on sale of
water, in substantially the sane 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.
7281
If such approval by the voters of the City of Baytown ha-s not
been obtained within six (b) months after date of-. execution by the
Mayor of the City of Houston, .this Contract shall be null. and .void
IN WITNESS V1HEREOF, 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 sat-tie contract, this
day of �` o v� r,3��✓ , A.A. 1976, the date of
execution by the Mayor of the City of Houston.
ATTEST:
SEcRf;��.A
CITY OF HOUSTON, TEXAS
(SELLER)
r �
"
Y HA
I A- YOR K4 M
-16-
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` ATTEST .
jell }1�.'•Buenz, ' Sec tary
7282
BAYTO`•JN AREA ' IATER AUTHORITY
BAYTOWN, HARRIS COUNTY, TEXAS
(BUYER)
By:
Paul R. Jason, President
APPROVED nS TO CONFORMITY WITH PARAGRAPH 2 OF THE CONTRACT BETWEEN
THE CITY OF HOUSTON AND THE SAN JACINTO RIVER AUTHORITY DATED JUNE
22, 1970":
ATTEST:
;S.e,cr e t ar,, • Pro T e�
A' PR6VE- D• •AS•' TO ' FORM:
• r
Assistant City Attorney
SAN JACINTO RIVER AUTHORITY
By: ,
Ge 1 Manager
-17-
' 7283
THE STATE OF TEXIkS
'i OF HARM S
BEFORE M.E. the undersigned authority, on this day personally
appeared FRED HOFHEINZ, Mayor of the CITY OF HOUSTON, TEX.7tS,
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 MY HAND AND SEAL OF OFFICE; this day of
1976. -
Notary, Public in an r .
Harris County, Texas
THE STATE OF X
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 acknOX41edged to me that
he executed the sane 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
19716.
Notary Public in sina for
- 1S -
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7285
f
AktEi:DATORY CONTRACT EE314EEN
SAN JACINTO RIVE, AU T':1ORITY
AND
THE CITY OF HOUSTON, TEXAS
THE STATE OF TEN_4S
COUNTY OF HARRIS
THIS CONTRACT executed as of the day of ,
1976, by and between the SAN JACINTO RIVER AUTHORITY, ( "SJ?.A ") a
conservat:=on and reclamation district and political subdivision
of the State of Texas, and the-' CITY OF HOUSTON, TEXAS, ("the City ")
a municipal corporation:
The provisions of Section VII of. the contract between the
parties dated March 27, 1944, shall have no applicati6n.to sales.
of Trinity River raw water by the City to.the Baytotrn Area T7ater
Authority ( "BAWA ") , a municipal corporation created by Ch_ 600,
p. 641, Sixty -Third legislature, Regular Session, 1973; for the
limited purpose of treating and selling the same as potable treated
water to the City of Baytown and other local governmental entities
for distribution through the municipal water systems of such local
governmental entities, such water to be used fo-r municipal purposes,
. as defined by Pule 129.01.15001 -.041, promulgated by the Texas
Water Rights Co-r:!ission on December 1, 1975, and for no other pur-
poses,.and only within the boundaries of B«.-M as such boundaries
exist on the date of this contract; PROVIDED, that no such water
shad 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, Sjolan.der 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 dater to BASH include appropriate covenants on
. _/ 206
the oart of BA14A to observe the limitations and restrictions
imposed on the City by the contract dated :larch 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
Si?,-k for approval as to conformity to this paragraah prior to
an 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
r
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 limitatibns,,olus 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
SMA of the restrictions and limitations imposed by the'
contract dated March 27, 1944, the City shall.-Pay to the SJP,A
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 SJRA 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
i quarter.
-2-
M
7287
5.
The contract shall not be assign -able by either. party
without the written consent of the other; however the obligations
imposed hereunder shall be binding on their successors or assigns.
The waiver provided herein shall be applicable only to sales by
the City to BAWA and shall not be applicable'to any sale by
the City to any other entity, including any successors or assignee
entity to BAWA, without the written consent of SJRA.
6.
Except as an. ended by this contract and the contracts
bet:w:een 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 WHEREOF, the parties hereto, acting under the
authority of their respective governing bodies have caused this
tract to be executed on this 3' day of 1976
con .,�
in duplicate originals, each of which shall constitute an original
ATTEST:
By
Secretary
ATTEST:
n
SAN JAC INTO RIVER AUTHORITY
By 41
Vice -Pre ent
CITY OF HOUSTON
By
Mlayor
City Secretary
COu TERS I GidED :
-City Controller
PROVED
City Attorney
-3-