Ordinance No. 3,37720513 -2
ORDINANCE NO. 3377
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE MAYOR
AND CITY CLERK OF THE CITY TO EXECUTE AND ATTEST TO
A WASTEWATER DISPOSAL CONTRACT WITH LAKE MUNICIPAL
UTILITY DISTRICT NO. 3 AND PROVIDING FOR THE EFFEC-
TIVE 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
hereby authorizes and directs the Mayor and City Clerk of
the City to execute and attest to a wastewater disposal con-
tract with Lake Municipal Utility District No. 3. 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 on this the 13 day of May , 1982.
CJ!L/���__�h
MMETT 0. HUTTO, Mayor
ATTEST:
t'
EILEEN P. HALL, City Clerk
APPROVED:
ANDALL B. STRONG, City torney
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EXHIBIT "A"
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WASTEWATER DISPOSAL CONTRACT BETWEEN,
CITY OF BAYTOWN, TEXAS AND HARRIS COUNTY
MUNICIPAL UTILITY DISTRICT NO. 3
THE STATE OF TEXAS
COUNTY OF HARRIS
This Contract is made and entered into as of the date
herein last specified by and between the CITY OF BAYTOWN,
TEXAS, a municipal corporation and home -rule city which is
principally situated and has its City Hall in Harris County,
Texas (the "City "), and HARRIS COUNTY MUNICIPAL UTILITY DIS-
TRICT NO. 3, Harris County, Texas, a body politic and corpo-
rate and a governmental agency of the State of Texas, organi-
zed under the provisions of Article XVI, Section 59 of the
Texas Constitution and Chapter 54, Texas Water Code (the
"District ").
RECITAL
1. The City is a municipal corporation and home -rule
city principally located in Harris County, Texas. The City
owns and leases sewage treatment facilities and desires to
sell treatment capacity to the District.
2. The District is a conservation and reclamation dis-
trict organized and,existing under Article XVI, Section 59
of the Constitution of the State of Texas, created by an
Order of the Texas Water Commission, and operating pursuant
to Chapter 54, Texas Water Code, as amended.
3. The District will own a sewage collection system
serving the "Service Area" and desires to purchase treatment
of its sewage from the City.
4. The District is empowered to collect, transport,
process, dispose of, and control all domestic, industrial or
communal waste whether in fluid, solid, or composite state.
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5. The District is authorized to purchase, construct,
acquire, own, maintain, repair or improve or extend inside
and outside its boundaries any and all works, improvements,
facilities and plants, necessary and incidental to the col-
lection, transportation, processing, disposition, and con-
trol of all waste.
6. All or part of the "Service Area" lies within the
extraterritorial jurisdiction of the City, as established by
the Municipal Annexation Act, Article 970a, Texas Revised
Civil Statutes. The parties acknowledge the possibility
that the City may annex the "Service Area" during the term
of this Contract, and the parties have agreed to certain
procedures designed to avoid confusion and dislocation of
utility service upon annexation. In addition, the parties
desire to avoid overlapping responsibilities for utility
service.
7. The parties have determined that they are authori-
zed to enter into this Contract by the Constitution and the
laws of the State of Texas, particularly the Regional Waste
Disposal Act (codified as Chapter 25 of the Texas Water
Code) .
NOW, THEREFORE, and in consideration of the premises
and the mutual covenants and agreements herein contained the
parties hereto do mutually agree as follows:
AGREEMENT
ARTICLE I
Definitions
The terms and expressions used in this Contract, unless the
context clearly shows otherwise, and in addition to other
defined terms herein, have the following meanings:
1.01 "City's System" shall mean the system for
the collection, transporation and treatment of waste, and
any extensions or additions thereto, currently serving or
that may be constructed to serve the City.
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1.02. "Director" shall mean the Director of Public
Works of the City of Baytown.
1.03. "District's System" shall mean the system for
the collection and transportation of waste, and any extens-
ions thereof and additions thereto, to be constructed to
serve the District, including those lines and facilities ne-
,essary for the transportation of waste from the District to
the point of interconnection with the City's system.
1.04. "Industrial Waste" shall mean waste resulting
from any process of industry, manufacturing, trade, or busi-
ness from the development of any natural resourse, or any mix-
ture of the waste with water or normal wastewater, or distinct
from normal wastewater.
1.05. "Infiltration Water" shall mean water or
other waste which enters a sanitary sewer system by means
other than by a permitted connection; "infiltration water"
includes water which leaks into a sanitary sewer system.
1.06. "Interconnection" shall mean those improve-
ments necessary for the connection of City's System and
District's System as set forth herein and more particularly
described as the sanitary sewer manhole located at
1.07. "Prohibited Waste" shall be those discharges
prescribed by the City of Baytown's Industrial Waste Ordi-
nance as set forth in Article II of Chapter 34 of the Code
of Ordinances of the City of Baytown, a copy of which is
attached hereto as Exhibit "B" and for all purposes made a
part of this contract. All future amendments to Baytown's
Industrial Waste Ordinance shall apply to this contract when
such amendments are adopted.
1.08. "Service Area" shall mean the area within the
boundaries of the District.
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1.09. "Sewage" shall mean wastewater excluding
industrial wastewater discharged by a person into sanitary
sewers and in which the average concentration of total sus-
pended solids is not more than 250 mg /l and B.O.D. is not
more than 250 mg /l.
1.10. "Treatment Plant" or "Plant" shall mean the
City's West District Treatment Plant and Central District
Treatment Plant including all additions or modifications
thereto which may occur subsequent to the execution of this
Contract.
1.11. "Waste" shall mean sewage and industrial
waste collected by a sanitary sewer system, together with
such infiltration water as may be present, provided that
such system is constructed in compliance with City specifications
and continually and promptly maintained and repaired.
ARTICLE II
CONSTRUCTION OF IMPROVEMENTS BY DISTRICT
2.01. District's Waste Collection System. District
shall acquire or construct, or cause to be acquired or
constructed, a Waste Collection System ( "District's System ").
No cost for the acquisition or construction of the District's
System, including engineering fees, and the acquisition of
any lands or easement in connection therewith, and obtaining
the approval of any regulatory agency shall be borne by the
City.
2.02. City Approval of Plans and Specifications.
Prior to the initiation of any construction of the District's
System, the engineers of the District shall submit to the
Director for written approval the plans and specifications
for the District's System. No construction of the District's
System shall begin until such plans and specifications are
approved in writing by the Director. The District's engineer
will provide the City, upon completion of the construction,
with one set of "as built" drawings, which meet the approval
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of the Director and a certification that the District's
System was built in accordance with the City's standard
plans and specifications and as indicated in the "as built"
drawings. The District will likewise obtain approval for
and supply the City with "as built" drawings and similar
certification for any subsequent alterations or modifications
made on the District's System during the term of this Contract.
2.03. Inspection. The District specifically grants
the City the right to inspect at any time any and all cons-
truction in order to determine whether such construction is in
substantial conformance with the City's standards and the
approved plans and specifications. Should any such constru-
ction during construction or after completion, but before
acceptance by the City, be found not to conform in some
material respect with the City's standards or the approved
plans and specifications, then the District shall immediately
upon receiving written notice from the City of such non-con-
formance take those remedial steps necessary to meet the
required standards.
2.04. Points of Discharge; Interconnection. The
point of discharge from the District's System to the City's
System shall be ,
The panties to this Contract may by mutual consent designate
additional or substitute points of discharge to serve the
Sanitary Sewer Collection System.
2.05. Completion of Construction. Upon completion
of the construction provided for in Section 2.01, the City
agrees to receive from the District, and the District agrees
to discharge, for the price and at the point or points of
delivery herein provided, such volumes of waste at such times
as provided in Article IV of this Contract, consistent with
other limitations as stated herein.
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2,06, Commencement of Use of Interconnection. The
Interconnection shall be placed into operation only upon the
inspection and approval of the Interconnection and the
District's System by the engineers of City and District.
2.07. Flow Device. The District shall purchase and
install at the point of discharge, or some other location on
its system acceptable to the Director, a metering or record-
ing device, also acceptable to the Director, capable of record-
ing total flow on a daily basis for at least a week's time
including peak daily flows, as stated in Exhibit "C ". This
device shall be the sole reporting device used to determine
the flows stated in Exhibit ,C". The District shall maintain
this device in good operating condition at all times and cali-
brate it for accuracy at least once every six (6) months. The
City shall have the right to inspect this device at all time's
and to take readings from it. If the City's inspection shows
that the metering device is failing to register fifteen per-
cent (157o) or more of the actual wastes being discharged, then
the District shall bear the cost of the inspection and recali-
bration. The District shall within ten (10) days after re-
quest of the City render any and all repairs or replace said
device if necessary to provide accurate readings. The Dist-
rict covenants and agrees to render monthly reportings to the
City of the readings made from such meter. Said readings shall
be made on the first regular business day following the first
day of each month.
ARTICLE III
OWNERSHIP, OPERATION AND
MAINTENANCE OF SYSTEM
3.01. Ownership of System. The District shall own
the District's System.
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3.02. Operation of the System. The District shall
operate and maintain at its own expense the District's Sys-
tem and will promptly repair any of its facilities so as to
prevent infiltration. However, should the District fail to
operate and maintain the District's System in a manner con-
sistent with sound engineering principles and should such
failure become a danger to the continued proper operation of
any portion of the City's System then such failure shall be
considered an Event of Default.
3.03. City's Plumbing Code. The District covenants
and agrees to comply with the City's current Plumbing Code
for sanitary sewer facilities and agrees not to permit
plumbing work relating to sewer service or allow connection
to its Waste Collection System except in compliance with the
City's Code and after inspection and approval by the District's
operator or other authorized representative.
The District further agrees that all plumbing connections
shall be maintained in compliance with the Plumbing Code re-
quirements of the City. In order to enforce this provision
the City inspectors shall be permitted to act for and on be-
half of the District with or in lieu of the District operator,
and the District will enforce any notices issued by such in-
spectors. If any such notices are not complied with, the
District shall discontinue sewer service when this may be
legally done pursuant to the District's Rate Order upon the
request of the City to so do.
Should the District for any reason fail to enforce the
standards established by the City Plumbing Code for sewer
facilities or should the District fail to comply with the
foregoing provisions of this section, such failure shall be
an Event of Default.
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3.04. Outside Service Contracts. The District
agrees that should the District desire to delegate respon-
sibility for maintenance or for supervision of its System to
any individual or entity other than its own employees or a
sewage plant operator holding a valid certificate of com-
petency issued under the direction of the Texas State Health
Department as required by Section 20(a) of Article 4477 -1,
then any such proposed service arrangement, by written con-
tract or otherwise, must be approved by the Director, whose
consent shall not be unreasonably withheld, prior to execu-
tion by the parties. Failure of the District to submit any
such proposed service agreement to the Director prior to its
execution shall be considered an Event of Default. Any
outside service agreement, whether submitted to the City of
not, shall contain a clause terminating the service agreement
as to the District on the date of annexation of the District
by the City.
3.05. Industrial Waste. The District shall regulate
the Discharge of Industrial Waste from within its boundaries
into its Sanitary Sewer Collection System, and in turn into
the City's System, including any requirements for pretreatment
before discharge into the Districts System if necessary to
meet the quality requirements as stated in the City's Indus-
trial Waste Ordinance or as required by any regulatory
agency. No such discharge will be permitted without prior
written approval. The applicant industry and the District
shall file a statement with the Director containing the
following information:
(1) Name and address of applicant;
(2) Type of industry;
(3) Quantity of waste;
(4) Typical laboratory analysis of the waste;
(5) Type of pretreatment proposed;
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and such other information as the industrial waste ordinances
of the City may from time to time require. District shall
permit no industrial waste connections until same are approved
in writing by the Director, but the City (subject to the
specific requirements stated herein) agrees to permit connections
to discharge Industrial Waste into the City's System upon
the same terms and conditions and subject to the same restrictions
and requirements as the City permits such discharges and
connections to its System within the City's corporate limits
in accordance with the City's ordinances and rules and
regulations promulgated pursuant thereto and in effect at
the time each application is received, including compliance
with all the requirements of the City's Industrial Waste
Ordinance, a copy of which is attached hereto as Exhibit
"B ", and for all purposes made a part of this Contract,
including all future amendments to said ordinance; provided,
however, the City shall not under any conditions be required
to accept "Prohibited Waste."
District specifically agrees to adopt for purposes of
setting rates those classifications of industrial and commer-
cial activity and those industrial waste standards stated in
the City's sewer rate ordinance and industrial waste ordi-
nance. In addition, District agrees that all such activity
will comply with all requirements for connection to the
City's System, including acquiring appropriate District
Industrial Wastewater Discharge Permits. As a condition of
connection to the System, all industries located within the
District shall agree in writing to (1) contribute to any
Industrial Cost Recovery Program imposed upon similar industries
within the City and (2) to provide to the Director on a bi-
annual basis the results of a full and complete analysis of
their effluent for those parameters stated in the City's Indus-
trial Waste Ordinance, including as a minimum BOD, TSS, COD, oil
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and grease, and heavy metals, such analysis to be performed
by an independent testing laboratory approved by the Direc-
tor.
3.06. Waste to Comply with City Ordinances. Dis-
charges of waste into the District's System shall comply
with all applicable City Ordinances. The District is obligated
to assume the responsibility to enforce the applicable City
ordinances with respect to impermissible discharges of Pro-
hibited Wastes originating from within the District. Failure
of the District to enforce said City ordinances shall be
considered an Event of Default.
3.07. Seepage and Infiltration. District agrees
that it will adopt and enforce written rules, regulations,
and provisions in all contracts of connection with any and
all customers designed to insure that connections to the
Waste Collection System will be such as to prevent as much
as feasibly possible the discharge into said System of
anything except sewage; and in particular, but without
limitation thereto, that no drains shall be installed or
connected in such a manner that any rainwater or other
surface waters are permitted to enter said Waste Collection
System; and, in addition, that adequate safeguards will be
taken to prevent any abnormal seepage or infiltration or
discharge of any solid matter into said System. Within
ninety (90) days following the date of execution of this
Contract, the District shall supply the Director with a copy
of such rules, regulations, and contracts, including a
statement of measures designed to enforce such provisions.
The District shall initiate whatever lawful actions are
necessary to disconnect any customer who, following notice,
refuses to remove noncompliant connections. The District will
routinely inspect all connections at the time made and
continue to monitor the System as a whole to detect-
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infiltration and unpermitted connections. District further
agrees to continuously maintain its System so as to prevent
any abnormal seepage or infiltration or discharge of any
solid matter into said System. Failure to do so shall be an
Event of Default notwithstanding any payments pursuant to the
following paragraph.
In the event excess infiltration or abnormal seepage or
the discharge of solid matter or surface water into the
District's System is present, the District covenants and
agrees to pay the additional charges provided for in Section
5.02 (b) herein for such excess infiltration. It is further
agreed that the City's inspectors shall have the right to
make such inspections as are necessary to insure that the
District is making adequate and proper repairs for the pur-
pose of safeguarding the City's System.
3.08. Participation in State and Federal Grant'
Programs; Contribution to Costs.
The District recognizes that the City is presently
participating in a federally funded grant program for the
construction of sewage treatement plants under the provisions
of the Federal Water Pollution Control Act, P.L. 92 -500, as
amended. Furthermore, the District recognizes that the City
may in the future participate in similar federal or state
programs. As part of such programs, and consistent with the
City's successful participation and sharing in grant funds,
certain responsibilities may be imposed upon the City with
respect to compliance with state and/or federal rules and
regulations regarding contributors to the City's System. The
District recognizes that by virtue of this Contract it is a
contributor to the City's System, and as a contributor shall
be required to take all necessary steps to enable the City to
continue to comply with such programs and to bear the District's
pro rata share of the expense of such compliance.
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More specifically, the District authorizes the City and its
representatives to enter District property and to conduct
those tests, including infiltration /inflow analyses, smoke
tests, or other similar analyses as required under the
provisions of the Federal Water Pollution Control Act and
the City's Federal Grant Agreements to characterize the
condition of the District's System. The District agrees to
pay the costs of such analyses of its System not refunded by
the state or federal government to the City. In addition,
the District agrees to pay the unrefunded cost of any remedial
measures necessary to improve the District's System comp-
liance with state or Federal requirements and agrees to see
that such remedial measures are timely taken. Such steps
are not exclusive, and District agrees to take all steps ne-
cessary to assure City's compliance with such programs.
Failure of the District to comply with this section shall
constitute an Event of Default.
3.09. Delivery of and Title to Waste. Title to all
waste to be treated hereunder shall remain in a particular
party so long as such waste remains on such party's side of
the Interconnection. Upon passing through the Interconnection,
title thereto shall pass to the other party; however, the
City shall be under no responsibility to accept those waste
materials which do not conform with quality or quantity
standards as otherwise specified herein including "Prohibited
Waste."
ARTICLE IV
SCHEDULE AND VOLUMES OF WASTE
4.01. General. In consideration for the compensation
stated herein the City shall accept from the District and
treat the volumes of waste in the intervals shown on Exhibit
"C" attached hereto and incorporated herein for all purposes.
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The values listed on Exhibit "C ", Column 4 are the
volumes of waste which the City shall accept on a daily
basis, including peak flows, from the District at the dates
shown and for the compensation stated in Section 5.02 (a)
herein, without Additional Compensation as provided in
Section 5.02 (b) herein. The volumes shown at each date are
the maximum acceptable volumes at that date and during the
succeeding interval until the next date shown.
The additional capacity provided in the Column 3 repre-
sents an allowance of 1000 over the permitted flow for high
flow contingencies and infiltration during the life of the
Contract.
4.02. Capacity Reserved. The City covenants and
agrees that it has reserved for the exclusive use and benefit
of the District the capacity in its Plant to treat the volumes
of waste on the dates indicated in Exhibit "C ".
4.03. Additional Capacity. Should the District's
needs, for whatever reason (including infiltration), exceed
those stated in Exhibit "C ", based on flow data or readings
pursuant to Section 2.07 hereof for total throughput, the
District agrees to pay the Additional Compensation as provid-
ed in Section 5.02 (b) of this Contract.
4.04. Service Contracts"with Other Entities. The
District shall not permit any entity located outside the
Service Area to connect to the District's System during the
term of this Contract without the express written consent of
the City. Failure to comply with this provisions shall con-
stitute an Event of Default.
ARTICLE V
PAYMENT AND TERMS
5.01. Capital Contribution. As a contribution to
the capital investment of the City and in consideration for
connection to the City's Systen, the District shall pay to
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the City the amount of Six Hundred Thirty Eight Thousand,
Six Hundred and No /100 ($638,600.00) Dollars, within two (2)
weeks of the funding of the first issue of capital improvement
bonds by the District. Notwithstanding the above, however,
the District is obliged and hereby promises to pay or cause
to be paid to the City said amount no later than two (2)
years from the date of this Contract. Additionally, in
order to further secure District's assurance of the availability
of such funds, the District will provide or cause to be pro-
vided to the City an irrevocable letter of credit, payable
to the City, in a form acceptable to the City in the amount
of Six Hundred Thirty Eight Thousand, Six Hundred and No /100
Dollars, ($638,600.00) so that, should the City be required
to enlarge or expand its wastewater facilities to provide
service to District in the amounts set forth herein prior to
the payment to the City by the District of $638,600.00
described above, then, in such event, the Letter of Credit
can be drawn upon by the City in such amounts and installments
necessary in order to provide funds for such enlargement or
expansion of wastewater facilities in the amount of District's
pro rata share of any such capital expansion costs. The
City shall also be entitled to draw upon the full amount of
such letter of credit if the full amount of the capital
investment contribution has not been paid within two (2)
years of the date of this Contract.
5.02. Monthly Charges. The District shall pay to the
City in monthly installments the following:
(a) Service Charge. A service charge (to cover
the City's operation and maintenance) equal to the
City's minimum charge and additional charges, if any,
such charges to be based upon the average consumption
of water for like services within the City limits
for waste which is gathered by the Dis-
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trict's System, delivered to the City at the
point or points of discharge, and treated by the
Plant. The average consumption for like uses
shall be reviewed annually. The charge shall be
calculated on the basis of the teetered water use
or otherwise for each connected user, consistent
with and following explicitly the provisions for
such calculations found in the City's Sewer Rate
Ordinance or Industrial Waste Ordinance, whichever
may be appropriate for the individual user. A copy
of the City's present rate ordinance for sanitary
sewer service, as set forth in Section 31 -65 of the
Code of Ordinances of the City of Baytown, in effect
as of the date of this Contract, is attached as
Exhibit "A ", and incorporated herein; a copy of the
City's present ordinance for disposal of industrial
waste, is attached as Exhibit "B ".
(b) Additional Service Charge. The District
covenants and agrees to an additional charge for
those volumes delivered in excess of the amounts
stated as "Total Acceptable Volume" in the Exhibit
"C" on a daily basis at the rate of four (4) times
the highest rate, calculated on a per gallon basis,
then existing for sewer service within the City, or
Three Hundred ($300.00) Dollars per month, which-
ever amount is greater.
5.03. Right of Inspection. City shall have the
right at any time by actual count or by an inspection of
District's books, records, and accounts, to determine the
number of connections served by the District, and the Dis-
trict shall have the right at any time to inspect the City's
books, records, and accounts, to verify the charges levied
by the City. It shall be the duty of the parties to cooper-
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ate fully with each other in any such count, inspection or
audit. All books, records, and accounts shall be open for
inspection at all reasonable hours by any authorized repre-
sentatives of the parties.
5.04. Billing and Payments. Beginning on the date
when the City first commences taking waste from the District
through the Plant, the District shall count and certify to
the City the number of connections in use on said first day
and thereafter the District shall render to the City on the
first day of each month an accounting of the service charges
as provided in Section 5.02 (a) and 5.02 (b). On receipt of
the above described accounting, the Director will bill the
District for the service charges accrued during the preceding
month. Payment by the District to the City shall be made
within thirty (30) days following the receipt of the bill.
Any sums payable by the District to the City under this
Contract which are not paid within thirty (30) days following
the receipt of the bill shall bear interest at the rate of
ten (100) per cent per annum from the date such indebtedness
matured until payment. If the District defaults on the pay-
ment of any bill, and the amount so past due and unpaid, in-
cluding interest thereon, is collected by the City by suit,
there shall be reasonable attorney's fees added thereto not
to exceed ten (1076) per cent computed thereupon for collect-
ion thereof by suit. Failure to pay charges when due shall
constitute an Event of Default.
5.05. Service Charge Modifications. Although the
City believes that the present charge for such services as
set forth in Section 5.02 (a) herein are fair and reasonable;
nonetheless, the parties realize that due to unforeseen con-
tingencies, the City may increase the charges for such ser-
vices, either by amendment of the rate schedule for like
services within the City limits upon which the service charges
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levied hereunder are based, or by other means. It is agreed,
however, that such charges shall not be increased as to the
District during the term of this Contract unless the rates
for other similar customers purchasing such services from
the City are also increased pro rata.
5.06. Operating Expense and Covenants as to Rates.
The sum to be paid the City by the District under the terms
of this Contract are declared by the District to be an
essential cost of operating and maintaining the District's
System as a part of the District's combined waterworks,
sanitary sewer and drainage system, and such costs shall be
a first charge upon the gross revenues received from the
District's System as a part of the District's combined
waterworks, sanitary sewer and drainage system, and such
costs shall be a first charge upon the gross revenues received
from the District's operation of said combined system.
District agrees to establish and maintain rates sufficient
to pay all costs and expenses of operation and maintenance
of its combined system.
5.07. Events of Default. An Event of Default, as
stated from time to time herein, shall constitute a material
breach of this Contract for which the City may, and the Dis-
trict explicitly recognizes the City's right, to terminate
service under this agreement and to seek all remedies at law
or in equity necessary to enforce the provision violated;
provided however, that this agreement shall not be terminated
prior to the City's giving ten (10) days written notice to
the District of the Event of Default complained of and a
reasonable opportunity for the District to cure said default,
or, if not curable in that time, to within ten (10) days
commence substantial curative efforts. Termination of
service pursuant to this section shall not limit either
party to any other remedy at law or in equity.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01, Force Majeure. In the event any party is
rendered unable, wholly or in part, by force majeure, to
carry out any of its obligations under this Contract, it is
agreed that on such party's giving notice and full particu-
lars of such force majeure in writing or by telegraph to the
other party as soon as possible after the occurrence of the
cause relied upon, then the obligations of the party giving
such notice, to the extent it is affected by force majeure
and to the extent that due diligence is being used to resume
performance at the earliest practicable time, shall-,be sus-
pended during the continuance of any inability but for no
longer period. Such cause shall as far as possible be remed-
ied with all reasonable dispatch.
The term "force majeure" as used herein, shall include,
but not be limited to, acts of God, strikes, lockouts or
other industrial disturbances, acts of the public enemy,
war, blockades, insurrections, riots, epidemics, landslides,
lighting, earthquakes, fires, storms, floods, washouts,
droughts, tornadoes , hurricanes, arrests, and restraints of
governments and people, explosions, breakage or damage to
machinery or pipelines 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.
6.02. Approval. Whenever this Contract requires or
permits approval or consent to be hereafter given by any party,
such approval or consent,shall not be unreasonably withheld,
and, if finally given, shall be effective without regard to
whether such approval or consent is given before or after the
time required herein. Such approval or consent on behalf
Elm
2051.:3 -t
shall be evidenced by an ordinance or resolution adopted
by the governing body of the party, or by an appropriate
certificate executed by a person, firm or entity previously
authorized to determine and give such approval or consent
on behalf of the party pursuant to an ordinance or resolution
adopted by the governing body, unless stated otherwise, herein.
6.03. Address and Notice. Unless otherwise provided
in this Contract, any notice, communication, request, reply or
advice (herein severally and collectively, for convenience,
called "Notice ") herein provided or permitted to be given,
made or accepted by any party to the other must be in writing
and may be given or be served by depositing the same in the
United States mail, postpaid and registered or certified and
addressed to the party to be notified, with return receipt
requested, or by delivering the same to an officer of such
party, or by prepaid telegram, when appropriate, addressed to
the party to be notified. Notice deposited in the mail in
the manner hereinabove described shall be conclusively deemed
to be effective, unless otherwise stated in this Contract,
from and after the expiration of three (3) days after it
is so deposited.
Notice given in any other manner shall be effective only
if and when received by the party to be notified. However,
in the event of service interruption or hazardous conditions,
neither party will delay remedial action pending the receipt
of formal notice. For the purpose of notice, the address of
the parties shall, until changed as hereinafter provided, be
as follows:
If to the City, to:
Director of Public Works
City of Baytown
P. O. Box 424
Baytown, Texas 77520
-19-
20513 -2n
If to the District, to:
Harris County Municipal Utility District No. 3
Attention: W. James Murdaugh, Jr.'
Smith & Murdaugh
1811 Houston Natural Gas Bldg.
1200 Travis Street
Houston, Texas 77002
The parties shall have the right from time to time and
at any time to change their respective addresses and each
shall have the right to specify as its address any other
address, provided at least fifteen (15) days written notice
is given of such new address to the other parties.
6.04. Assignability. This Contract shall bind and
benefit the respective parties and their legal successors
and shall not be assignable, in whole or'in part, by any party
without first obtaining written consent of the other party.
6.05. Regulatory Agencies. This Contract shall be
subject to all present and future valid laws, orders, rules
and regulations of the United States of America, the State of
Texas, and of any regulatory body having jurisdiction.
6.06. No Additional Waiver Implied. The failure of
any party hereto to insist, in any one or more instances upon
performance of any of the terms, covenants or conditions of
this Contract, shall not be construed as a waiver or relinquish-
ment of the future performance of any such terms, covenant or
condition by any other party hereto, but the obligation of
such other party with respect to such future performance shall
continue in full force and effect.
6.07. Modification. Except as otherwise provided
herein, this Contract shall be subject to change or modifica-
tion only with the mutual consent of the parties hereto.
6.08. Parties in Interest. This Contract shall be
for the sole and exclusive benefit of the parties hereto
and shall not be construed to confer any rights upon any third
-20-
0
20513 -2v
party. The City shall never be subject to any liability in
damages to any customer of the District for any failure to
perform its obligations under this Contract.
6.09. Captions. The captions appearing at the first
of each numbered section in this Contract are inserted and
included solely for convenience and shall never be considered
or given any effect in construing this Contract, or any pro-
vision hereof, or in connection with the duties, obligations
or liabilities of the respective parties hereto or in ascer-
taining intent, if any question of intent should arise.
6.10. Severability_. The provisions of this Contract
are severable, and if any provision or part of this Contract
or the application thereof to any person or circumstance shall
ever be held by any court of competent jurisdiction to be
invalid or unconstitutional for any reason, the remainder of
this Contract and the application of such provision or part
of this Contract to other persons or circumstances shall not
be affected thereby.
6.11. Merger. This Contract embodies the entire
understanding and agreement between the parties as to sanitary
sewer service, and there are no prior effective representa-
tions, warranties or agreements between the parties.
6.12. Construction of Contract. The parties agree
that this Contract shall not be construed in favor of or
against any party-on the basis that the party did or did not
author this Contract.
6.13. Term. This Contract shall be in force and
effect from the date of execution hereof for a term of thirty
(30) years and shall be automatically extended for additional
five (5) year terms unless either party gives written notice
of termination two (2) years prior to the date for such
automatic extension.
-21-
DATED this the
CITY OF BAYTOWN
Mayor
ATTEST:
City Clerk
(SEAL)
day of
-22-
20513 -2w
198
HARRIS COUNTY t4UNICIPAL
UTILITY DISTRICT NO. 3
President
Secretary
(SEAL)
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