Ordinance No. 2,98100925 -10
ORDINANCE NO. 2981
AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR AND
CITY CLERK OF THE CITY OF BAYTOWN TO EXECUTE AND ATTEST
TO A CONTRACT WITH THE BAYTOWN AREA WATER AUTHORITY
(BAWA) ESTABLISHING THE RATE FOR SALE OF WATER TO THE
CITY OF BAYTOWN.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
BAYTOWN:
Section 1: That the City Council of the City of Baytown
hereby approves the contract with the Baytown Area Water
Authority (BAWA) establishing the rate for sale of water to
the City of Baytown and authorizes and directs the Mayor and
City Clerk of the City of Baytown to execute and attest to
said contract. A copy of said 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.
INTRODUCED, READ, and PASSED by the affirmative vote of
the City Council of the City of Baytown this 25th day
of September , 1980.
ETT O. HUTTO, Mayor
ATTEST:
A ` J
ErLEEN P. HALL, City Clerk
APPROVED:
RANDALL B. STRONG, City >Irt orney
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E X H I B I T "A"
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SUPPLEMENTAL AGREEMENT
TO
WATER SUPPLY CONTRACT
FOR
TREATED WATER
THE STATE OF TEXAS
COUNTY OF HARRIS
This Supplemental Agreement (hereinafter called Agreement)
made and entered into on the date hereinafter last specified
by and between the Baytown Area Water Authority, (herein-
after called Seller) and the City of Baytown (hereinafter
called Buyer) to supplement and carry out the terms and
conditions of the Water Supply Contract entered into by the
parties on January 31, 1977, which is attached hereto as
Exhibit "A ".
NOW THEREFORE, for and in consideration of the premises
and the mutual covenants and agreements herein contained and
those contained in the aforementioned contract, the parties
do hereby mutually agree as follows:
Article I
Points of Delivery
1.1 The points of delivery shall be as indicated on
Exhibit "B ". Pursuant to Section 2.01 as set forth in
Exhibit "A ", the parties may designate such other points of
delivery as to which they mutually agree.
Article II
Rates and Prices
2.1 All water sold and delivered by Seller to Buyer
for which Buyer is obligated to pay hereunder shall be sold
to Buyer at the rate of $0.97 per 1000 gallons of water
utilized. The parties agree that they believe this to be
1007o of Seller's cost of producing treated water. if,
during the term of this Agreement the Seller has other
customers for the purchase of treated water, the Buyer shall
pay only a pro rated share of Seller's cost, and the Buyer's
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pro rated 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
water per day), as determined on an average 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 determined, and by
multiplying such quotient by the Seller's costs during the
period of time agreed to.
2.2 During the period Buyer is the sole customer of
Seller, if the price for treated water set forth in Section
2.1 does not pay 1007o of Seller's cost, the rate shall be
adjusted to an amount.sufficient to pay 100% of Seller's
cost.
2.3 Until such time as the Seller has customers for
treated water other than the Buyer, the amount of water
delivered to the Buyer shall be measured by the metering
equipment located at the treatment plant which measures the
total quantity of treated water delivered into the trans-
mission lines.
Article III
Sale and Delivery of eater
3.1 Seller agrees to sell and deliver (or cause to be
delivered) to Buyer, Buyer's water requirements of treated
water as hereinafter set forth in the respective minimum
monthly quantity, at various points of delivery, and Buyer
agrees to purchase from Seller, Buyer's treated water
requirements as hereinafter set out for resale during the
term of this contract in the respective minimum monthly
quantity hereinafter set forth. Buyer's total treated water
requirements shall mean the total quantity of treated water
Buyer needs to conduct operations. Nothing herein shall
prohibit Buyer from purchasing quantities of water in excess
of the minimum monthly quantity hereinafter set forth.
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3.2 In accordance with the provisions of Section 3.1
above, the minimum monthly quantity of treated water Buyer
is obligated to purchase from Seller, or pay for, whether
taken or not, shall be 7.6 million gallons per day (MGD).
To determine the minimum monthly quantities for Buyer, the
minimum in terms of MGD shall be multiplied by the number of
days in the month.
Article IV
Billing
4.1 Buyer shall pay on the first of each month the
estimated cost of treated water Buyer expects to purchase
during the month, such estimate to be based on the minimum
monthly quantity of treated water-Buyer is obligated to
purchase. Any overpayment or underpayment resulting from
such estimated payment shall be reflected on Seller's monthly
statement to Buyer. If Buyer is due a refund due to overpayment,
such amount may at Buyer's option be refunded to Buyer or
applied to the following month's advance payment.
Article V
Term of Agreement
5.1 The term of this Agreement shall be for one year
beginning on the date of initial delivery of untreated water
by the City of Houston to Seller, as defined in the Seller's
Contract with the City of Houston.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement in multiple copies, each of which shall be
deemed an original, but all of which shall constitute but
one and the same Agreement, this day of
BAYTOWN AREA WATER AUTHORITY
By
ROBERT L. GILLETTE, President
-3-
ATTEST:
PETER R. BUENZ, Secretary
(,? I :
,ATTEST:
r
EI,pEEN,P. HALL, City Clerk -
1
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CITY OF BAYTOWN
By
EIMETT 0. HUTTO, Mayor
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E X H I B I T "A"
THE STATE OF TEXAS
COUNTY OF HARRIS
WATER SUPPLY CONTRACT
TREATED WATER
X
X
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THIS WATER SUPPLY CONTP.ACT - TREATED WATER (here -
inafter called the "Contract ") made and entered into on the
date hereinafter last specified by and between the BAYTOTN
P-REA WATER AUTHORITY, a governmental agency and a body poli-
tic and corporate of the State of Texas, created pursuant to
Chapter 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 BAYTOti`M, TEXAS,' a municipal
cbrporation and hone rule city which is principally situated
and has its City Hall..in Harris County, Texas (hereinafter
called the "Buyer ") .
W I T N E S S E t H:
For and in consideration.of the premises and the
mutual covenants and agreements herein contained, the parties
hereto do hereby mutually agree as follows:
ARTICLE I
Definitions
Unless a different meaning or intent clearly 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 defined),
(b) complete such making, purchasing, constructing, leasing,
or reco acquiristructcthenProjectexorn (e)o modify
refundanyh Project,
Bonds
(d)
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 other security and payment, as such resolution or
resolutions may be amended from time to time as therein
permitted.
Costs of the Project -- The costs incurred or to
be incurred by the Seller or the Buyer with respect to the
acquisition of the Project, ,.7hether incurred prior to or
after the date of this Contract and including, but not
limited to, the following items:
(1) Obligations for labor, materials, ser-
vices, and equipment;
(2) Costs of any bonds and insurance the
cost.of which is not otherwise provided for;
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(3) Costs of engineering services, including
costs for preliminary design and development work,
test borings, surveys, estimates, plans and specif-
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 of the Bonds, including without
limitation (a) fees 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 of the principal of, premium, if any,
and interest on the Bonds issued pursuant to the to ms of
this.•Contract, including particularly Article TV.
Project -- The property, works, 'faci lities, and
improvements (whether previously existing or to be made,
constructed, or acquired), within or without the boundaries
of the Seller, necessary (1) to acquire surface water
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
water 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 Mater, 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
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is attached hereto as Exhibit A and incorporated herein by
reference and made a part hereof for all purposes.
Seller's Cost -- The costs to be incurred by the
Seller in the performance 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 of the Buyer's acts.
ARTICLE 11
Sale and Delivery of Treated mater
Section 2.01. Subject to the terms and conditions
of this Contract, the Seller agrees to sell and deliver (or
cause to be delivered) to the Buyer treated crater for muni-
cipal purposes, at a point designated in writing by the
Buyer and agreed to in writing by the Seller, and the Buyer
agrees to purchase from the Seller, treated water for muni-
cipal 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 front 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 water 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 co.-nencing 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 modification shall, however,
revise the Project in such a manner as to change the purpose
of the Project from receiving, treating, and supplying
surface water for the benefit of the Buyer.
ARTICLE IV
Rates and Prices
Section 4.01. The Buyer hereby agrees to pay the
Seller's Costs through the establishment of rates for the
purchase of treated water and by subsequent payments to the
Seller-based on such established rates. The Seller and the
Buyer shall periodically establish rates for the purchase of
treated water.
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Section 4.02. The parties hereto specifically
agree and understand that as of the date hereof, the Buyer
is the Seller's only customer for the purchase of treated
'crater, 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
1000. From and after the time that the Seller has other
customers for the purchase of treated.water, however, the
Buyer's prorated 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 water per day), as determined on an average 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 Payments 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 obligation 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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may be pledged therein. The Buyer expressly consents to
such procedure and will comply with any such trust indenture
securing the Bonds. 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 Pledged Revenues and other
payments and to enforce any remedies described herein..
(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
amounts 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 amount in the applicable interest and sinking
fund is insufficient, or for the payment of the last maturing
principal 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, in
the event that the parties hereto so determine, a reserve
fund or funds in an amount or amounts different from the
aforementioned amount may be established and the income from
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 appropriate
utility systems and those sources provided by Chapter 54,
Texas dater Code, and Article 1109], 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 betv7een 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 delivery of treated water measuring
equipment equal to the measuring equipment required by the
Seller of other customers and shall perform such periodic
calibration tests on such equipment so installed as required
by the Seller of all of its customers for treated water.
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ARTICLE VII
Bill) -nq and Payment
Section 7.01. on or before the 15th day of each
calendar month, the Seller shall render to the Buyer, at the the
Buyer's office, a statement for the amouogtoyArticle
Buyer to the Seller for treated water, pursuant
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 law) at a rate of 10% 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
for 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
delay 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.
ARTICLL IX
Term
This Contract shall be for a term of twenty (20)
years beginning on the date of initial delivery of untreated
water by Houston 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 p a
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 Seiler takes water for the
limited purpose of treating and selling the same
as potable treated water to the Buyer and other
local governmental entities for distribution
through the municipal water systems of said local
governmental entities;
(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 Water
Rights Commission on December 1, 1975) and for no
other purposes, and only within the boundaries of
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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, Sjolander 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 "SJRA ")
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 limited to,
costs of court and reasonable attorneys fees;
(e) That Houston may be liable to SJRA for
monetary damages in the event that the Seiler (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 6f
such covenants for approval by Houston.
Section 10.02. As a result of the agreements by
the Seiler 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.
Until
by the Seller,
as follows:
ARTICLE XT
Addresses and Notices
the Buyer is otherwise notified in writing
the address of the Seller is and shall remain
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Baytown Area [ gater Authority
2401 Market Street
P. O. Box 424
Baytown,, Texas 77520
Until. the Seller is�'tthewBuyer notified
and sha11 writing
remaibyashe
Buyer, the address o
follows
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 orders, rules, nd,la -
tions of the United S aef���ica,the Stateofexas
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 follows:
(a) that for five (5) years beginning with
the initial delivery date, as specified in the
Seller's Contract, the Buyer will make advance
payments to the er expects '
of water the Buy to take during
billing period;
(b) that Houston, trhich is furnishing water
to the Seller, shall be a Third Party Beneficiary
for the terms of that s�ch�waterstootheany
funds .
paid by the Buyer f 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 lbecomeddue underetheyment
of the sums which shall
Seller's Contract; and
(d)' that the Buyer will comply with the
restrictions and limitations on the sale of water,
in substantially the form as they appear in Section
9.2 of the Seller's Contract and that the Buyer
will indemnify and hold Houston harmless as de-
scribed in Section 2 of Article IX of this Con-
tract.
Section 12.04. if any word, phrase, clause,.
paragraph, sentence, part, position 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 would 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 purposes
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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 deemed to be an original, but all of which shall consti-
tute b t one and the same contract, this 3/ day of
u , A.D. 1977, the date of execution
by 4th ,Mayor of e City of Bayto:4n_
ATTEST:
y
f-�! ;
Peter`•Buenz Secretary
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5
ATTEST
1, '1A
Eileen P. Hall, City Clerk
APPROVED AS TO FORM:
City ttorney, Baytoim , Texas
BAYTO N AREA WATER AUTHORITY
B
President
CITY OF BAYTO14DI
By
Tom Gentry, Mayor
APPROVED AS TO CONFORMITY WITH SECTION 9.2 AND 9.4 OF THE
CONTRACT BETWEEN THE BAYTOWN AREA TIATER AUTHORITY AND THE
CITY OF HOUSTON DATED NOVEMBER 1, 1976:
I) �
7L: , 1
City Secretary
APPROVED AS TO FORM:
CITY OF HOUSTON
By
Mayor
. . I J � - �1cti.f-
&.575-rcity Attorney, ity o Houston
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I'MOLIESALE WATER SUPPLY CONTRACT
U N T R D\ l': 1T E R
THE STATE OF TEXAS �
COUNT' OF HARRIS
This contract made and entered into on the .date hereinafter last
specified by and between the City of Houston, a municipal corporation
and hone rule city which is principally situated and. has its ' City Hall
w-
in Harris County, Texas, (hereinafter called "Seller "), and the Ba- 0rt
Area 1,ater Authority, a governmental agency and a body politic and -
corporate ztihi th is situated and has its principal office at Baytai:n, -
Harris County, Texas, (hereinafter called `'Buyer "). '
1.3 T T N F S S E T H
WHEREAS, Seller has the right under certain hater permits to
divert waters from the Trinity River, the Lake Livingston Reservoir and
the JVallisville .Reservoir as' Well as from the San Jacinto watershed. ar�d
other sources or from combinations thereof; and --
1191 EREAS, Seller has constructed and is constzuctiny certain
facilities. to enable delivery of the aforementioned water to Buyer, at
a single point of delivery, and Buyer will, subject to approtral of the
voters of _the City of Baytown. of a contract for treated Z:�ater from t��e
Baytoirn Area Water Authority, construct certain facilities to enable
Buyer to receive the aforer.2entioned ;rater, treat it-so as to mare it_-
-potable, and distribute it and -
WIRER AS, Seller is desirous of selling lame quantities of untrea4ec
water from such source or sources to Buyer, and Buyer is, subject to
E the above, desirous of purchasing from Seller its untreated t:ater.
€ requirements for treatment and. resale; and
1tiHEREAS, Seller and Buyer have found, and do hereby find, that
Seller and Bixyer are authorized by the Lags of the Scat: of Texas to
enter into contracts for ti le sale of vater upon such terms ar.; for the
00925 -10r ,
period olL tir.,e as are hereinak'.Ler set forth, and Sel?e.- ;rnl htlyc::
specifically contemplate the provision; 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
1,MEREAS, Seller has entered an amendatory contract with the
San Jacinto River Authority which grants conditional permission to
Seller to sell eater to Buyer and which requires Seller. to pay to the
San Jacinto ?Liver Authority the sum of Fifty ($SO. 0 0) - Dollars per day
- during the terra of this contract in consideration of the granting
said conditional permission;
Iv4;'1 , THERErORE, for and in consideratior_ of ehe premises and the
mutual covenants and agreements herein contained, the. parties hereto -
do hereby mutually agree as follows: _
Article x _
Definitions '
As used in this contract, the folla,ring terms are intended and used
herein and shall be construed to have' meanings as follo.•,s:
1. "ptini;Zun_ monthly quantity" shall mean the ninzm.um 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 provisior:s of'Article III
hereof. -
2. 11MG6" is an abbreviation for million gallons of urater pex- dal.
As -used in this contract, 11MGD" refers to a quantity of water during 2-
period of time expressed.for convenience in terms of an average daily
quantity during a calendar month (unless a different period oz tzr�e is
specified). The volume of two MCD for a calendar month, for example,
is calculated as follows: million gallons multiplied by =�hc nur.;ber
of days in such calendar month.
Article 11
Sale and Delivery of V.ater
Subject to the terms and conditions of this contract, Se1Xer grees
to sell and deliver (or cause to be delivercd) to 'Buyer, Eu; er's water
0092- 5 -10s -i .
rcai�ire:ents of untreated rater as her��ir:::�z�s._ set forth ire the respec-
tive i;iinimum nonthly quantity, at a point of dclivery provided for in
Section 2.4 herein, and Buyer agrees to purchase from Sallcr, Buyerts
untreated water requirements as hereinafter set out far resale during
the tern of this contract in the respective minimui- monthly quantities
and at the respective times hereinafter set forth_ The quantities of
untreated crater to be purchased by Buyer and sold by Seller hereunder
shall at all times during the term hereof equal or-exceed ninety percen,
(90116) of Buyer's monthly total . water requi.renents_ Buyer's total untrea
eater requirements shall mean the total quantity of uatreatecl ;Dater
Buyer needs to conduct operations, use or res ell 'zvrithin'the boundaries-
of the Baytown Area Water Authority. -
2.2 Notifiths tanding - the provisions -of Section 2.1,-above the
ninir..um monthly Quantity of untreated tirater Buyer is obligated to _
purchase from Seller; or pay for, whether taken or not, shall bey
Initial delivery through 3rd year thereafter - 6iGD --
4th year through 7th year 8 i�iGU
8th year through 11th year 10 2•iGI}
2th,year through 15th year - 13xGD
16th year through 20th year 16 MGD
To- determine the nini►Ium monthly qua"rtities for Buyer, . the miniraur
in terns -of' MGD (from the above tabulation) shall be multiplied by the
ru ber of days in the, month.
As used .herein, "Initial Delivery" means the date on -which Buyer
is ready to receive untreated water froi:t Seller, of which date Buyer
shah give Seller .six (6) months advance notice, but which in no event
shall be later than Decenber 313. 1980, subject to the protiision.s of
Section 13.4 herein.
2.3 In the event Buyer wishes to reserve for itself additional
monthly mininum quantities of untreated ►Pater during any of the time
C.
periods set forth in. Section 2.2 it may notify Seller in "i,t"m o.f it
desire to do so, aad in the event Seller, then has untreated '•titter
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' 00925 -10t
av- Lijable for sale to its cus4amvzs, it iri11 entcr i-ato a >uitahle
nc:ne�~zt }3ereo` �:it }t Euyer zncre� sing t}ze n%ni.r,.uzz ::�ac�t�t1;- t<<e or pa}
cos-niLrient of Buyer for tire. remaininc, period of the tern of thi.s cont.r2c-
In the event however, the total requirements Of purchasers £row Seller
pltzs Seller's oti�er obligatians or commitments with respect to LIntree red
ter exceed the quantity of such water Seller has available for sai�
or delivery, Seller may pro rate. such adclitxoZal requirenzcats ai:ong its
customers and its other obligations on a .fair and equitable 'basis-
2.4 The point of delivery for untreated water sold under this
can tract shall be designated by Buyer at a point i-Mriediately adjacent
to the Coastal Industrial 1 °0ater Authority Canal betHeea the points
nars:ed "X" and "'Y" on the attached Exhibit 'W', PROVIDED, HOWEVER,
that Seller reserves the right to reject any point of delivery- designate
by Buyer z.rhich would' in effect; interfere. t, :ith or increase the. cost O.L.
any other facilities or operations which Seller right z:ish to construct
or implement, oY plan to construct or impleMent, alan� or in connectzoz
'with said Canal. Buyer agrees to give Seller notice in writing of a-In%r
point of delivery designated by Buyer, and Seller agrees to accept or
reject such point of .delivery by a prompt response in wrxtina_ .
In the event that Buyer should fail to designate a point of delivex
acceptable.to Seller by-the date of Initial Delivery (as de£zned in
Section 2.2 herein) Seller may designate -the point of uelivery -or
Buyer, and such designation shall be forever binding on Buyer. .
2..5 Buyer covenants and agrees to construct. and operate a �r-eseruo:
and /or forebay bet�.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 withdrai, of untreated �:ate;-
fror! the Coastal lndustri ul ZIrater Authority Canal shall at all ti;�es
be reasonably steady and even. Buyer agrees to st���3it plans of said
rese-rVOIr and /or forebay to Seller for the aopraval of Seller prior
to the comaence; yen t of cans tract ion of said rescrlroir ailcl /off- forebay-
_4-
00925 -iOu
Thereafter, Buyer acyrees to construct and operate said reservoir and /or
foreb :y in accordance �Iith -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 tanen or not, shal_1
be under and subject to the provisions "and in coinsideration of the
price o� prises set forth in Chapter 49, Article Il,.i}ivisian 2, _
entitled "Charges for Untreated ��Fater ", of the 1968 Code of Ordinances
of the City of Houston, as it may be amend °d, the provisions of 'which
are incorporated herein by reference as fully and canpletely as if
copied herein in full:
Whenever the quantity of Water taken. during a s�anthly. period by
i -Buyer exceeds by-ten percent (10%) the T,inirqum monthly quantity obli-
gation of Buyer designated herein, an additional c arge . of ten percent
(10t) upon the entire monthly charge 1• *ill be made over w at the monthly
j charge would be as deterrined from the Block. Schedule applicable.to
Buyer.
3.2 By reason of Buyer'`s cO'mmitnent herein, the blocl; scheautles
or rates applicable to contracts whe.L the Buyer agrees to purchase
zt least ninety percent
(90%) of all its nonthly water requir&ments T -
from Seller shall apply. The initial bloc: schedule applicable to
Buyer shall be ordinance Schedule B thereof_ -
,a Additionally, Buyer understands and agrees that Seder nay-
; at any tame, by ordinance duly enacted, increase or change the price
ated crater as set forth in such block schedules,
or prices for untre
provided., however, that except trhere an independent rate z a?ysis. indi-
cates that a certain rate increase is required, the price or prices fox
untreated water shall not be increased percentagetyise as to Buyer
- nont1� Period of the ter-m of this contract in excess of t}
during any 12 P
proport ;ovate percentage
rate increase
in Snllcr's
dOres is potable
water rates approved
11; t11in such
ti.re?vc (12) iaonth
pArza3_
00925 -ion
3. The total price or charge to L'uyer for :-:ester hereunder -
shall be the price or prices -for water referred to in Section 3 -1,
3,2 or 3.3 above.
Article IV
Rem
Within thrity (30) days after the end () each quarterly period
during the term of this contract Buyer shall furnish Seller with a -
sate tent, under oath, shoti• :ing the quantities and sources. of all grater,
treated for use or resale by Buyer- -
Article it '
�
'ieasurin Equipment
5. At Buyer's own cost a:zd expense, Buyer shall furnish and i.nsta,
2t the point of delivery hereunder, measuring equipment properly equippe
I kith peters, totalizers and recording devices of standard type for
measuring and recording accurately the quantity of eater delivered _u:ider
this contract, the peters to have a capacity for measuring the quaiztit3-
: of .rater delivered within an accuracy tolerance of two percent .�ZA) plus
s or rsinus for a given rate of flow, and Buyer shall also install; opera `e
.- pressure regulating devices and eq-ui
and mainLai.n, as required by Buyer, p •-
xtent. Such measuring equipment shall be approved by Seller, end after
Seller's approval of the installation, shall become the property of Sell
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
deternining the neasurer:ent and quantity of untreated ;rater actually-
delivered hereunder, but the reading of the peters for purposes of
- billing shall be done -by Seller. .
5.3 lifter approved installation thereof, Seller shall perform,
at its own cost and expense, periodic cLlibration tests on the primary
to maintain y the accuracy
r=:easuri.ng equipment so installed in order
-6-
- 00925 -1ft -
tolerance within the guarantees of th° r�aaufacturer thereo �, not to
exceed a tolerance of t::o percent (2 ) , at leas once e': er�
nonths. At reasonable intervals, Seller agrees to properly check and
calibrate the flotif recording and totalizing neasu.ring equipment for the
purpose of- ascertaining their condition of accuracy- Seller 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 na.c?e -ir =.mediately sa' said.
rteasuri�tg equipment will regis ter correctly within the aforesaid
accuracy tolerance of two pe -rcent (2%) plus or sinus, for a given. rate
Of. flora. In addition; Buyer shall have the -right -to incdependently check
said rneasuring equipment at any time UP" no'
to Seller or its
authorized.representative_
5.4 -Seller may install, at its o:iM cost and e :pans e, such check _
3aeters in Buyer's pipeline or canals as ray be deemed• appropriate and
Seller shall have the right of ingress and egress to such che'ch neters
during all reasonable hours-, provided, however, that billing ccmputatiar!
shall be on the basis of the results o-. the'Measurind equipment set
forth in Section 5.1 above_
5.5 lf, upon any test; the percentage of inaccuracy of any
neasuri.na equipment is: found to be in excess of five percent (5 �� lfor
the aforesaid given rate of flow, then Buyer's account shall be adju-sted
for a period extending back to the tir e l:hen such inaccuracy, began,
if such tine is ascertainable, and if such time is not ascertainable,
:nor a period extending back one -half (112) of the time elapsed since
the date of the last test, or, the date of the last adjustment to eorree
' the registration, whichever is later, mat to exceed forty -five (E 5) day
If 3P for any reason, the measuring equip, is out oL service or out of
repair and the amourt of untreated i- ater delivered cvurmot be ascertained
or computed from the reading thereof, : ater clelix er ed <.uring the period
-7-
00925 -10x
shall be estima.tec? and agreed upon by tine par�.ies hereto on the bas;
of the best data available.
r
5.6 his used in this Article V, the expression "given rata of
flow" Weans the . total quantities. of untreated i.-:ater delivered during
the preceding period (usually 'a calendar north) as reflected by the
recording devices, divided by the number of days in the period..
Article VI _ -
-. Bzlling and Payment -. -
6.1 As used in. this Article VI, the term day "' shah._ wean a
period of twenty -four (24) - consecutive hours beginning at 8.00 o�elac'K
a. in. on one calendar day -and ending at 8:00 o'clock a_rr,_ on 'the newt
succeeding calendar day, and the term "month" shall mean a perio&
beainziing at 8:00 o'clock a.n on the first ciz }r of a calendar month and ending at 8 :00 o'clock a.m. on the first day of the next succeee -ing
calendar month, except that the first •nonth or partial month. shah _
begin on the day of initial delivery of zrater hereunder,'_-and the' mininu-a
ronthly paynent, if any, -shall be prorated for suc'rz P artial month_
6.2 The measuring e�{uipm °nt shall be read oii the day at the -end -
of each month (or at such period of frequehcy arrtinged be tureen the Part-ii
at 8:00 o'clock a-m., or as near thereto as practicable _
b.3 Tile quantities of untreated water for w' ien payment is duz by
Buyer hereunder in any month. shall be the greaten 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 eater Buyer is
obligated to ta?ce hereunder, or pay for if not taken, .
in such month, pursuant to the prolrzslons of Scction
2.2 hereof.
6.4 Seller shall render to Buyer at Buyer's principal affi.ce as
saecixied in Article XiII hereof on or before the tenth (10th) day of
00925 -•10y
eac�i ca�erc� r month a statement
of urttre<<tvc`.
for which payment is. chle hcrEUnder c?r:rinc, the precedir- RO. -Iti._
of such statements shall he clue and payable to Sc1ler at zt offices
in Houston), Barris County, Texas, on or boforc the tv'er[tieth (ZOth) Jay
after receipt of such statement-
6.S Should Buyer fail to tender payrenL of any amount when due,
interest thereon shall accrue at the rate of ten percent (10s)per annum
1' from the" date when clue until paid-
I .
6. b In the event. Buyer fails to tender payment ,of any ai[.ount i,h�n
idue and such failure continues for forty -five (45) days after notice
in writing to Buyer of such default, Seller ray susper_d do ? zvery of
untreated water hereunder , but the exercise of such ric,,l sh�.lz be- in
-addition to any-other remedy available to Seller_.
! Article Vll' -
- Title to and Res onsibility for Eater -
7.1 Title to, possession and control of t:ater shall rcmairr 3n
Seller, or its assigns, to the point of delivery. as provi(l c1 in Section
2.4 hereof where title to, possession add control of water deliveredl'
under . this contract shall pass from Seller to Buyer, and Buyer tF�ll
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 ,rater deliverable hereunder and solely-
responsible-for any damage or injury caused thereby until the same -shal
have been delivered to Buyer at such point Of delivery, after Mich
delivery Buyer shall be in exclusive control and possession thereof
solely responsible for any in jury or damage: caused thereby, and-
and .-
each part y respectively shall save 2nd hold. the other party har�imless
from- all claims, demands and causes of action_ which mzy arise 'While
said water is under its respective ownership and control -
Article gill
Teri
This contract shall be for a term of. twenty (20) years beai_linincr
on the date or initial Deli-very-
-g..
00925 -10z. --
Articl-11 7X
Performance by Seller ant? Rug er
9.1 Seller covenants and agrees that -it v :ill not contract for thc.
sale of ti,ater to other uses to such an extent or for such quantities
as to impair Seller's ability to perfor,:i fully ,incl punctually i.t.s
obligations to Buyer under this contract. In case of tenrporar.y short?o,
of 1 -.ater notwithstanding Seller's compliance with th4 provisions of
this Article IX, Seller shall distribute the available supply as prop =ica(
by the laws of the State of Texas, particularly Section 5-039(a) of the
- Texas 3 °pater Code. It-.is specifically agreed and understood that - this_
:
agreement contemplates that Buyer will -treat anti. resell the Crater pun-
chased pursuant to the terms hereof. -
9.2 Pursuant to that certain contract erzt.ered by Seller and the
Say! Jacinto River Authority, a copy of i•:hich is attached hereto for -
all purposes, and.notivithstanding any other provision of .this contract
to thz contrary, Buyer covenants and agrees that it ta'kes uater.uncler
this contract from Seller for the limited purpose of treating and se.lz
the sarie as potable treated' water to the City of Barto-v n -and other loca
governmental entities for distribution through the municipal grater
sy stet �s of such local. governmental entities; ties; such crater to be used for-
t municipal purposes [as defined.by Rule 129- 01_lS_C41 -_041, pror�ul;ated+
by the Texas Water Rights Commission on Deceiber. 1; 1975) and for no
other purposes, and only within the boundaries of the Baytown Area vats
Authority as such boundaries existed on June 1, 1976; PROVIDED.,
- that no such crater shall be sold,. distributed or used other than 'for
= reside jai household and other strictly domestic purposes Within the-
area bounded by Tntersta g
to Hi niyay \No. 10 on the north, S. olander Roza
�
on the i -,est, Archer Road on the south, and Cedar Dayou on the eas ,
EWithou 4 the written consent of the San Jacinto River Authority and Se-16'
Buyer agrees to include covenants similar to those contained in
th_s Section 9.2 in any sal :s or contracts for sale of water by 'Buyer
to any other entity. Buyer agrees to .submit the wording of such
covenants for the approiral of Seller.
-x0-
00925 -10aa
Buyer t�ndersta ► =c?s and agree, eit }1er Seller or thc: S�.c
Jacinto River Authority, or bosh, may enforce 4 }ie 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 i.nderinify.Seller in the amount of all -
expenses relating to the legal proceeding, includi�
but. not limited.
to, costs of court and reasonable attorneyts fees- -
9.4 Buyer acknowledges that Seller may be liable to the San
Jacinto giver Authority. for monetary damages in the event that Buyer:_ -
(or any purchaser of water from or through _Beyer) fails to comply Frith
the restrictions and limitations on the sale of water set out in
Section 9.2 herein. Buyer acknowledges that such monetary damages i:ould
amount to seventy-five percent (7S%) of the consideration or revenue
received by Seller far th-e estimated avun� of eater uistributerl, sole-,
or used in violation of such restrictions or 1iritations, plus all
litigation expenses, reasonable attorney fees, and. all other -remedies
available to the San Jacinto River Authority. Buyer hereby agrees ' to -
to tally indemnify and save Seder harmless fron and agaZres any such
expenses and liability ; -.Inch Seller night incur, or any loss Seller
night suffer, as a result of any failure by Buyer, or any purchaser, -
of water front ar through Buyer, to co:^ply- With such res trzctzozs and
1initations.
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
likeiri.se index -ni.fy and save Seller harmless_ : Buyer -
agrees to submit the wording of such covenants for the approval of -Selle
Article X
Renedies.Uoon Default
10.1 In the event of any default by Buyer in the performance of ar
- of Buyer's obligations hereunder z.hich shall contino.e for a period of
thirty (30) days or more, Seller shall give ;.ritten notice to sayer -.
specifying the natter tiri th respect to which Buyer is in default and
11 -
00925 -10bb -
requv!stinu thcLt the sa.;r,e be renedzed vJth pra- ptrL-S° - lr•' .!ist Itch_
In the event Buyer within. sixty (GO) days after the rlailing of such
riot)-cc by Seller° to Buyer has fti.led to = remed;� the attcr in default,
Seller Tway suspend further delivery or untreated water to Buyer here-
under; and in the event such default on the part of Eu }'cr 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 sha 11 terminate
and be at an end_ -- -
10.2 During any monthly period in which Seller is unable Lo -
L eliV er to Buyer on each day the minimum MGD specizied. in Section 2.7-
hereof, whether as.a result of temporary curtailments resulting froze
temporary shortages as provided in Section_ 9.1 hereof or of force maj eura
as prow idecl in Article XI hereof, Buyer shall be - obligated to pay Seller
only for the greater of (a) the quantities of untreated t,atex actually
delivered to Buyer under this contract during such month or•(b) the rini-
num monthly quantity .of water ,which Buyer is obligated. to take and, pay
for, or pay for, whether. taken or not, during such month nultzpliecl by
a fraction, the nurierator of ;which is the number of calendar days in the
month in which there is Po curtailment and the denominator of i:hich is
alendar month. During any such period, Buyer
the number of days in the c
shall be free to obtain Untreated water iron other. sources. -
10.3 -The failure of either party to insist-in any one or pore'
instances upon. performances of any of the tern -s, covenants or conditic�zs
of this contract, shall not be construed as a - waiver or relinquishment
of the future performance of any such term, covenant or conditiort by _
the other party hareto, but. the obligatiorT of such other party -with
respect to future perfor�imance shall continue in full force and effect.
Article XT
Force Maj eure
11.1 In the event either party is rendered tTnable, wholly or in
part, by force Traic"re, to cart;' out any of its obiigations under this
-12-
00925 --IOce
contiact, or in the event D u Y c r is r unaR u1c,
by Farce majeure to ol7erate ;uyer's treater eat facilities, it is ayre -d
that on such party's nivinQ notice -aj:d full pZ :rticu7ars Of StIc:, force
naj eurc in z,;riting or by telegraph to the other party as soon as possaj;jc
after the occurrence of the cause relied upon, then- the obligations of ILI
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
perfornar_ce 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 rer►_edzc
with all reasonable dispatch. :
21.2 The terra "force majeure", as used herein, shall include but
not be limited to, acts of God, strikes, lockouts or other industrial
gas trubarc es , acts of the public enemy, var, blockades, insurrections, -
-riots, epidemics, landslides, lightning, earthquakes, fires, storms,
floods, 1•.ashouts, droughts, tornadoes, hurricanes, arrests and restraint!
of ao,., n;aent 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 strives
or .lockouts shall be entirely within the discretion of the party hairin8
the difficulty, and the above requirenel t that any force majeure be
re;tec?�ed Frith all .reasonable dispatch shall not. require the settlement
of strikes or lockouts by acceding to de -ands of the opposing party
1:hen such course in znadlrzsable in the discretion of the party hav -inc,:
the difficulty.
Article \II
Addresses and Notices
12_l Until Buyer is otherwise notified in wri
• 00925 -iOdd
City of f{ou5ton Plater- Di_vi ior_
f'- 0. 1'awc 1552
fiouston, Texas 77001
t {r.til Seller is otherv.ise -not ifzeci in ;citing b+- Buyer, thw add: ess
of Du•:er is anc'_• shall remain as follows:
Bay torn Area 1 %*ater Authority
2401 Market Street
P. 0. Box 444
Baytown, Texas 77520
12.2 All written notices, statements and pa }rents 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
nailbox or- receptacle of certified or registered mail, i.ith proper'
thereto, addressed to the respective other. party at the
postage
addr -SS set forth above or at such -o them address as-the parties respec�
ti.vely s?-all designate by written notice.
Article XIII :
Miscellaneous Prop: isibns
d anZ benefit the respective parties
13.1 This contract shall bin
and their legal successors, but shall not otherwise. be assignable, in
-hole or in part, by either parity without first obtaining the written
�� per that Buyer shall have the right.
consent of the other- provided, ha. eti Y without. any co�?sent - of Seller, to pledge or otherwise assign Buyerrs
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 obli.gatavns
hereunder in connection with any merger or consolidation of any sale- -
of all or substantially all of Buyer's facilities, Provided that 1>3uyer's
SIZCCCSSOr or assignee, as the case nay be, is a responsible person and
shall (ay operatio;i of la« -or othert•risc) expressly assLu, -�e Buyer =s
obligations hereunder, PROVIDED, F[JR'fjj�P., hor:ei,er, , that no successor
or assignee of Buyer shall bry entitled to receitc WIter udder this
-14- -
• 00925 -10ee
contract uules'_- n• -.%3 ;until the San Jacinjo idler �'Lut:�aiity shall
ha�e
git omit its written cons Ynt to the sale of ti,�iter to said successor or
assignee_
13.2 This contract shall be subject to all I)resent and fuLu-re
valid laws, orders, rules and regulations of the United States of
flmarica , the State of Texas, and of any reOulator }- body havxrip jurisdicti
13.3 Tllzs instrument contains alb. the agreei�.ents made beta.eer_ the
parties_
134 It is specifically agreed ant? understood that thzs contract is
subject to and shall not be effective until approval. of a contract be-
tt:een the Baytown Area Water Authority and the City of Bayto.rn by the
voters of the City of Baytown as provided in Chapter 609, Acts o-J the
r63rd Legislature, Regular Session,. 1973. -The contract between the
Baytown Area .Eater Authority and the City of Baytn��'n shall include .
provisions-which provide:
1. That for five (5) years b a vitiL the
initial delivery date, the City of Ba }' tc +:rn
will make advance payments to the Baytown.
Area 3tiater Authority for the estimated
Ruantities of eater it etpects to take, and _
further, that the City of ouston who .ill be - - -
_ furnishing the Crater that Baytown Area Vater
Authority rya 11 sell and deliver. to the City
of Baytown, shall be a Third Party Ber_eIiciary
far the ten=t of such contract as to any -
f funds to be paid by the City of Bay-town for -
such eater to the Baytown Area jrater Authority-
2_ That the foregoing provision is for the
benefit of the City of Houston to induce
Houston to contract for the sale a -E hater
x5-
to tD7e Bay o-, n Area j,,1t4r P uthority ar,d
to secure th° payment of the sins which
shall beco=me due uWcler such contract
bets :een the City of Houston and the
Bayta-wn Area l'.ater Autharit}•.
00925 -10ff
3- That the City of bayto, n ..ill comply with
the restrictions and limitations on sale of -
ti.ater, in substantially the sane fora as
they appear in Section.9.2 herein, and that
the City of Baytown ill i. ndemnif }' and bald
will '
the City or- Houston harmless from and against-
the expenses and liabi.li t }r set out in
Section79.4 herein_
if such approval. by the voters of the City of Bay has not
been obtained Z, i thin six (6) months after da Le of. execution by the -
Mayor of the City of Houston, this Contract.. shall be null and _xroid_-
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 i;hich shall constitute but oxie ' and the same- contract; this
day of A-D_ 1376, the date of
execution by the Mayor of. the City of Houston_
CITY OF HOUSTON), TEMAS _
ATTE T' (SELLER)
B
1�
Y -� YOZ
-16-
CITY S E CT _'T• RY'
B
1�
Y -� YOZ
-16-
00925 -10gg
BAYT0!_1N hP EA -IATER AU TRO? I iY
$AYT(l' •IN, :HARRIS COUNTY, TF.7AS
1 (Rli ZER)
aii ES T .
j�.-$LLZTLw� Sectary $y'—`�
3 Paul R. Jason, Presiaent
APPROVED AS TO C01N-FORRMITY WITH PARAGRhPH 2 OF THE CONTRACT BETMEF.N,
THE CITY OF HOUSTON AND THE SAN JACINTO RIVER AUTHORITY DATED JUNTE
22, 1976: -
SAN JACI1,1TO RIVER AUTH01RI.TY
AT T S'= .
Gen -al Manac,
;•Se,cretar; r.° Pro Tee
fi_�PP�.; Jj •A - -TQ F0PUM
Assist2nt City* Attorney
-17-
00925 -10hh
THE STA T E OF TEX «S
J. lifkRRI S �
BEFORE ,tE, the undersigned authority, on thi!; day persoRully
appeared FRED HOFHcTPJZ, P.la }�ox ofc the C�'IY QF HOPIS T OBI, TEXAS, -
known to ne to be the person i,hase rave is subscribed to the fore -
going instrument, and cZGnnow e daed to me that he executed the same
for the purposes and consideration therein expressed, in the -
capacity therein stated, and as the act and dead of sa7d CITY OF
HOUSTON, TLXAS. .
A.
G1lj�,,N UNDER DIY HAND YND SEAL OF OFFICE; this day C- - -
4- 1976.
w
Nat ar Publ- I%IGin an x r _ t
Harris County, Texas ._
THE STATE OF � - -
CQUNY OF
BEFORE �iE, the- undersigned authority, on thin dzy personally
appeared - - -
known to ne to be the person tYhase nano* is
s��bscribed to the faregozna instrument, end ackrctYledoe to ne that
he executed the sane for the purposes and n
casidertion therein
expressed, in the capacity therein stated, and as the act -and _
deed o. said
Glen-: UNDER ;fY HAND AND SEAL OF OFFICE this day of -
1976.
Rotary Public 3.n `nl Eor
19
t
00925 -10ii
A_'NTENDATORY CO NT?-ACT BETWEEN
SAN JACINTO RIVEn AU .IORITY
Air D
THE CITY OF HOUSTON, TEXAS
THE STATE OF TE)iAS �
COUNTY OF HARRIS
THIS CONTRACT executed as of the day. of
1976, by and between the SAN JACINTO RIVER AUT11OR1T_f, ( "S,-R 1k) a
t conservation and reclamation district and political subdivisi on
of the State of Texas, and the 'CI TY Or HOUSM-N, TEXAS ( "'the City-")
a_mun.icipal corporation:_ -
-The provisions of Section VII of the contract heL, -7 the
parties dated March 27, 1944, shall have no appli^ation -to sales.
of Trinity River raw water by the City to. the Bayto:Tn A: ea T7ater
Authority ( "BAWIA ") > a municipal corporation created. by Ch_ =600,
P. 641 , Sixty -Third legislature, Regular Session,_1973; for the''
limited purpose of treating and selling the -sane as potable treated
eater to the City of Baytovm and other local government- entities
j for distribution through the municipal water systems of such local
governrnental. entities, such eater to be used for Tunicipal 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 BA A as such boundaries
exist on the date of this contract; PROVIDED, that no such wate-r -
{ shall be sold, distributed or used other that for residential _-
Household and other strictly domestic purposes �Tithin the area -
bounded by Interstate Highway No. 10 on the north, Sjolander Road
_ on the west, Archer Road on the south, and Cedar Bayou o-n the east,
without written consent of SJRA.
2.
The City shall insure that all i.nstrurnents relating
I
to the sale of water to B.Nt.!A include appropriate covenants on
- . r
00925 -10kk
the Dart of BAWA to observe the limitations and restrictions
imposed on the City by .the contract dated ;arch 27, 1944, as
modified by this contract, and to include covenants in all
sales and contracts for the sale of crater by BAIJA 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 parag-rap"IL prior to
any sale by the City subject to this contract . The City shat 1.
be responsib? e for the enforce��ent of such covenants, but they
shall also be enforceable by SJRA directly-
3.
In the event any Crater 'delivered by tha City to BAWA.
under this contract is used in violation of such restrictions
or limitations, SJi.A shall be entitled to recover from the
City as liquidated damages an amount equal -to . set =enty - -five
percent (75 %) of the consideration or revenuQ 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 ire addition to all other
remedies available to. SJRA.
In consideration of the foregoing limited waiver by _
5j a of the restrictions and limitations imposed by the'
contract dated March 27, 1944, the City shall-pay to the SJF44
art amount; equal to $50 Der day during such period that the _
City receives payment from BALM for water sold under this
waiver, put such payments to SJ `A shall. not e�tenl beyond a
oeriod of 20 years. Payment shall be made on a quarterly basis,
on or before the 10th day of the month follo -, ing cac"a calendar
quarter.
-2-
' 00925---10 LL-
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 assiga_;
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, includinc any successors or assig�te
entity to B.MNIA, without the written consent of SJRA_
6.
Except as amended by this contract and the con`racts_
between the parties dated July 19 , 1955, May 9 � 19x3 and the
contract dated September 1, 1971, the provisions of the Marcl3
27,,1944, contract shall remain in full force and effect_
IN ;FITNESS WHEREOF, the parties hereto, acting, Lander the
authority of their respecti-ve governing bodies have . caused. this
• r t 7- da of � _ i
contract to be execute d oh is 19 Y >
r ' T
in duplicate originals, each of which shat_ cons`xtute an_ori�inz
ATTEST:
By��1�.
Secretary
ATTEST:
city Secretary
CD TZ :TF.RSIGi:ED:
-City Controller
SAN JACINTO RIVE?, AUTHO°IT-r
BY
dice- -Pre -en
t
CITY OF HOUSTON -
BY I I R—di P W !i
I:a o
00925 -10mm
E X H I B I T "B"
00925-10nn
LWF Y COUNT
ti CIIAN-tDE SCOUN
Barrett
%
A.
L kip 'L'
ONT
LVrEU
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4L
GULF
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M Ced3r Bayou
a y4 5te-a rl
.wPown
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LUST rL
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BUR
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Fr /2
cis *'R FR f . 3AIVTO IMOR
FT
Qx It l�
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3:z -!Z. ;l 4— 22f i.
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ASSOC ), .
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RJOD
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uss
C4 z
QkFll!94R�
TA.VIJA cj�tj LL M
LOMAX a,
F115
14
BE�l
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MO GAMS PO
R 90
' -A P RrE n
IF, FP G P. Rd j
14 0 6— 3"
k GZm ft
LA I D
ATKIN t,
86
7
t\
Fit
coa
ay
r Bay
PASS
C a-631[0 Fj Ra go
POINTS OF DELIVERY,
ON SHORE_
ACRES
L
m
wo 0 c
ma* IN
'P
"75
Ing Flit Z
k � s
00925 -10 00
POINTS OF DELIVERY
1.
Thompson Road @ I -10
2.
Bayway and Decker
3.
Cedar Bayou Lynchburg
@ Scottwood Drive
4.
Cedar Bayou Lynchburg
@ Garth
5.
Cedar Bayou Lynchburg
@ Main
6.
Cedar Bayou Lynchburg
@ Barkaloo
7.
Barkaloo and Crockett
School (2 connections)
8.
Barkaloo and Massey Tompkins
9.
Spur 201 and Southern
Pacific R. R.
10.
Lobit and 1st Street