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Ordinance No. 3,74940 M7-2- ORDINANCE NO. 3749 --K ORDINANCE Ati�JFWT V op M ANA r�azcCTiVG Tt-ME MAY�� ANp CITY CLE3iK OF Tl- CITY QF BtA1rT0 1 TO E ?CECIjTE ANQ ATTEST TO A C0w7FtACT wIT" TIC BAYTOlMV AREA MATER AUTi-4CN%ITY {BAMA) ESTABLISHING TMEE RATE FClR SALE CW W^TER TO Tl C CITY OF SA'Y'VCY WjL ff itl itiil fl till f4!!!! !if!!i!!!ilfiftfllff!!!!!!liiii i!liifft!!f liiirif if cliff! BE: lT CM;tn^INED BY T*iE CITY CO1JA/CIL C)F T&-ME CITY CW 18A1FT0MVj+ - T'EXIASt Section I- That the City COLWW-ril of the Gity of Saytowr► hereb Y epprcavas the Contract with the Baytown Area Water Aaathority CEMWA3 estabiishing thes rate for sale of water to the City of Baytown and aLcU izea ared directs the Me-vor and City CierLc of the City of Baytown to CxecatO and attest to said contract. A copy of said contract is attached hareto, marked Exhibit n^". and made a part hereof law all intents and pawpoaes. Section 2s This ordinance shalt take effect frost and after its passage. INTROUIJCEal REAp, and P^MS 0p by the affirmative vote of the City Council of the City of Baytown, this the 12th day of Jantiary, 1984. AT- l'ESTa r-- avert City Clerk APPFiOVEOt ity Atto y s 3 %fPPLDMTfTAL AGREDdUff 70 WATER SUPPLY [72111RACT FOR TREATED MI11TeR THE STATE CF TEXAS CMMTY IF I-MRI S 447.12 -Zap This Supplemental Agreement (hereinafter called Agreement) made and entered into on the date hereinafter last specified by and between the Baytown Area Water Authority, (hereinafter 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." NEM IMEREF(Mv 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 fol!owsr Article 1. Points of Deliver 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 If. 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. 2.2 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 transmission lines, with the amount delivered to the City L being the total delivered into the transmissi___ —V plant, less such amounts sold to other customers of the Authority. Article ill Sale and Delivery of Water 3.1 Seller agrees to sell and deliver (or cause to be delivered) to Buyer, Buyer's water requirements of treated water as hereinafter not 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. 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 7.5 million gallons per day (NM). To determine the minimum monthly quantities for Buyer, the minimum in terms of M3D shall be multiplied by the number of days in the month. 3.3 The minimum take or pay amount set forth in Section 3.2 may be adjusted each year upon the request of the Public Works Director of the City of Baytown and subject to the approval of the General Manager of the Baytown Area Water Authority. 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 2 4Qa.1« —IC Payment sha!I 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 tz Buyer or applied to the following month's advance payment. Article V. Term of A regiment 5.1 The term of this Agreement shall be from January 1, 1994, to December 31, 1996. IN WITNESS W-EREOF 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 , 1983. By PETER BUENZ, Secretary By EILEEN HALL, ity let BAYTC N" AREA WATER AUD- R I TY By L , resident CITY OF BAyTC W,4 By AL , Mayor 3 i x x H I B I T ..A +. t 40112 -1d 2 THE STATE OF TEXAS COUNTY OF HARRIS WATER SUPPLY CONTRACT TREATE D T 40112 -1e THIS WATER SUPPLY CONTRACT - TREATLD WATER (here- ,inafter called the "Contract") made and entered into on the date hereinafter last specified by and between the BAYTORs AREA 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 BAYTOwN, TEXAS,' a municipal corporation and home 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 Bayer 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 acquiring, (c) enlarge, expand, or modify the Project, (d) reconstruct the Project, or (e) refund any Bonds. Bond Resolution -- Any resolution or resolutions adopted by the governing body of the Seller which authorize the issuance of Bonds pursuant to this Contract and pro- viding for 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, whether 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; 40112 -1f (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 incu_• -red 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 . feee, (d) rating agency fees, and (e) initial fees and expenses of a trustee, if any; (5) Costs required to be paid under the terms of any contract or contracts in connection with the Pxojnct; (6) Sums required to reimburse the Seller or the Buyer for advances made by either of then 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 terns of this- Contract, including particularly Article IV. Project -- The property, works, facilities, 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 (herei .fter defined), (2) to conserve, store, transport, tre.r., and purify untreated water purchase%l 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 paint 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 dater Supply Contract - Untreated Water, 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 which 40112 -1g 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 descried in Section 5.02 hereof with respect tr, all outstanding Bonds, (2) maintenance, operational, and acainistrati.ve cost (3) the cost of untreated water tract, including n Pursuant to the Selle s, and g y penalty or interest incurred r's Lon- Seller by reason of the Buyer's acts. by the ARTICLE II Sale and-R_eliverY of Treated water • of t Section 2.01. Subject to the terms and conditions his Contract, the Seller agrees to sell and deliver (or cause to be delivered) to the Buyer treated water for muni- cipal purposes, at u point designated in writing by the Buyer and agreed to in writing by the Seiler, 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 from Houston, or pay for, whether taken or not, certain quantities of water throughout the terns 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 with the acquisition 3.01. The Seller agrees to proceed promptly and construction of the Project with the proceeds of the Bonds or, at the option of the Seller, other money lawfully available for such purpose. The Seller does not anticipate any delays in commencing or completing the Project, but the Seller shall not be liable to the Buyer for any damages occasioned by the acquisition, construction, or completion of the Project or any delays in completion of the Project. Section the revise the Scope Of�or� the fp anssand specificationsaforithey Project, such p+oposed 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. 40112 -1g 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 water, but that there may be ot}1er 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 1003. 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 �. of the Buyer's purchase of treated water quantity 'gallons of water (in millions of per day), as determined on an average over a period of time agreed to C• the total quantity of treated ateresold by eeSelleerr�(ii 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 ]'Mounts Section 5.01. Pursuant to the authority grafted by the Act, the Seller - agrees, upon the request of the Buyer, to issue and sell, from time to time, Bonds in amount, 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 a to principal only or as to both principal and interest and s 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 W Pledged Revenues to the Seller pursuant to and in accordance with the terms of any Bond Resolution and (ii) the periodic feesi charges, and expenses of any trustee and paying agents n 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 the amounts and at the times ldesignatedpindany 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 40112.1h 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 do- 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 Bones, 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 J'� 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 fcr 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 source ; - that the Buyer may pledge toward such payments, including gross revenues of appropriate Utility systems and those sources provided by Chapter 54 Texas Water Code, and Article 1109j, Vernon's Texas Civil Statutes, as amended. Section 5.05. (a) A substantial draft of any Bond 'Resolution, showing the principal amount of and interest rate on the Bonds, the maturities of the Bonds, the name of the purchaser thereof, and other pertinent features, must be delivered to and approved by the Buyer prior to the issuance Of any Bonds to be so authorized. (b) The parties to this Contract agree and under- stand that the holders of the'Bonds shall rely upon such approval of the Buyer and upon Buyer's promise to pay the Pledged Revenues specified herein. Therefore, the Buyer, covenants and agrees that such payments of the Pledged Revenues shall be made regardless of the status of the acquisition of the Project and without setoff or counterclaim and, notwithstanding any other provisions of this Contract, the holders of the Bonds shall be entitled to rely upon the foregoing agreements and representations regardless of any other agreements between the Seller and the Buyer. ARTICLE VI Measuring_ Equipment If and when the Seller has customers for treated water other than the Buyer, the Buyer shall furnish and install at the point of 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. ARTICLE VII Billing and Payment 40112 -11 1 i Section 7.01. On or before the 15th day of each calendar month, the Seller shall render to the Buyer, at the Buyer's office, a statement for the amount owing by the Buyer to the Seller for treated water, pursuant to Article IV hereof, for the preceding month. Payment of each such statement shall be due and payable to the Seiler 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. ARTICLE 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 paid. ARTICLE X Performance bX the Seller and the Eaer Section 10.01. The parties to this Contract specifically understand that in the Seller's Contract, the Seller has agreed as follows: (a) That the Seller takes water for the limited of treating purpose 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 40112 -1j the seller, as such boundaries existed on June 1, 1976; ` (c) That no such water shall be sold, dis- c 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 west, Archer Road on the south, and Cedar Bayou on the east, without the written consent of the San Jacinto River Authority (hereinafter called 'SJRA') s 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 Seller (or any purchaser of water from or through the Seller) fails to comply with the restrictions set forth in Section 9.2 of the Seller's Contract; that the Seller acknowledges that such monetary damages would amount to seventy -five M%) percent of the consideration or revenue received by Houston for the estimated amount of water distributed, sold, or used in violation of such restrictions or limitations, plus all litigation expenses, rea- sonable attorney fees, and all other remedies available to SJRA; that the Seller agrees to totally indemnify and save Houston harmless from and against any such expenses and liability which Houston might incur, or any loss Houston might suffer, as a result of any failure by the Seller, or any purchaser of water from or through Seller, to comply with such restrictions and limitations; and (f) that the Seller further agrees to include covenants in any sales or contracts for sale of water by the Seller to any other entity to insure that said other entity will likewise indemnify and save Houston harmless and submit the wording of such covenants for approval by Houston. Section 10.02. As a result of the agreements by the Seller described in the preceding section, the Buyer hereby agrees to abide by all restrictions placed on the sale of water contained in the Seller's Contract and further agrees to totally indemnify and save harmless both the Seller and Houston from and against any expense and liability which either night suffer as a result of any failure of the Buyer to comply with such restrictions. ARTICLE XI Addresses and Notices Until the Buyer is otherwise notified in writing by the Seller, the address of the Seller is and shall remain as follows: 40112 -1k Baytown Area Water Authority 2401 Market Street P. O. Box 424 Baytown, Texas 77520 Until the Seller is otherwise notified in writing by the Buyer, the address of the Buyer is and shall remain as 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 futu a valid laws, orders, rules, and regula- tions of the United States of America, the State of Texas, and of any regulatory body having jurisdiction. Section 12.02. This instrument contains all of the agreements made between the parties. Section 12.03. The parties to this Contract agree and understand as follows: Section 17.04. 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 hereof. (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 Seller for the estimated quantities of water the Buyer expects to take during each billing period; (b) that Houston, which is famishing water to the Seller, shall be a Third Party Beneficiary for the terms of this Contract as to any funds paid by the Buyer for such water to the Seller for water; (c) that this pxcvisicn is for the benefit of Houston to induce Houston to contract for the sale of water to the Seller and to secure payment of the sums which shall become due under the 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 do- scribed in Section 2 of Article IX of this Con- tract. Section 17.04. 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 hereof. ARTICLE XIII 40112 -11 APE royal and Ameridment 11 prior to thecentering0of . ursuant to the this Contract, elections mush het held within the Buyer to authorize entering into this Con - tract. LZ Section 13.02. This Contract may be amended by the duly authorized written agreement u t he the parties hereto; provided, however, that pursuant to the terms of the Act, no election as described in the preceding section, shall be k required at such times of amendment_ IN WITNESS WHEREOF, the parties hereto have axe - 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 / . A.D. 1977, the are` o execution May a e City of Baytown. { BAYTOWN AREA WATER AUTHORITY ATTEST: _ Peter Suenz Secretary - ATTEST Eileen P. Hal , C ty Clerh APPROVED AS TO FORM: _ Ci Baytown, Texa CITY OF BAYTOWN By Tom Gentry, Mayor APPROVED AS TO CONFORMITY WITH SECTION 9.2 AND 9.4 OF THE CONTRACT BETWEEN THE BAYTOWN AREA WATER AUTHORITY AND THE CITY OF HOUSTON DATED NOVEMBER 1, 1975: 1} l ATT r' City Secretary APPROVED AS TO FORM: , /�S'SfiCity Attorney, CITY OF HOUSTON By Ma or -9- f E X H I B Y. T. k • 48].12 -1n WHOLESALE ;►ATER SUPPLY CONTRACT THE STATE OF TEXAS COUNTY OF HARRIS ) " This contract made and entered into on the date hereinafter Iasi 4specxfied by and between the City of Houston, a municipal corporation �nd home rule city which is principally situated and has its City Hall in Harris Count Texas {hereinafter called "Seller") Y, , and . the Baytas:n Area later Authority, a governmental agency and a body politic and _ corporate which is situated and has its principal office at Baytown, . . Harris County, Texas, (hereinafter called 'Buyer "). - K. THESSETH: _ WHEREAS, Seller has the right under certain water permits to divert haters from the Trinity River, the Lake Livingsto;e Reservoir and the Waliisville Reservoir as Drell as from the San Jacinto watershed and other sources or from combinations thereof; and WHEREAS, Seller has constructed and is constructing certain. facilities•to enable delivery of the aforementioned water to Buyer, at a single point of delivery, and Buyer .ill, subject to approval of ,e• voters of ,the City of Baytown, of a contract for treated crater from the Baytown Area 17ater Authority, construct certain facilities to enable Buyer to receive the aforementioned dater, treat it so as to rake it - potable, and distribute it; and 10HEREAS, Seller is desirous of selling la -.&& quantities of untreated) %later from such source or sources to Buyer, and Buyer is, subject to the above, desirous of purchasing froz Seller its untreated eater —. rLluirements for treatment and resale; and WFEREAS, Seller and Buyer have found, and do herrby find, that Seller and Buyer are authorized by the Lairs of tite State of Texas to enter into contracts for the sale of eater upon such terns and for the 40112-lo period of tine as arc hereinafter set forth, and Seem+- and Buyer specifically contemplate the provisions of- articles 4413(32c) and t 1109e -1, Texas Revised Civil Statutes, as they hai•e been enacted to the t: date of this contract, in making th_se findings; and . IHEREAS, Seller has entered an amendatory contract with the San Jacinto River Authority which grants conditional Permission to - ,4 eller to sell water to Buyer and which requires Seller to pay to the San Jacinto River Authority the sum of Fifty ($50.00 Dollars per �Y r_ . ,.. - during the terra of this Contract in consideration of the granting of = said conditional permission; -•_ NOW THEREFORE, for and in consideration of the premises and:.the- mutual covenants and agreements herein contained, the parties' hereto_. . do hereby mutually agree as follows: Article I - Definitions �. As used in this contract, the follot,-iag terms are intended 'and used" herein and shall be construed to have meanings as follows: 1. "Minimum monthly quantity" shall mean the nininnm quan'ti. iy of , water Which Buyer is obligated to tale-and pay for, or to pay four, if not taken, during any calendar month under the provisions of-Artigle III.' hereof. _ 2. I%GD" is an abbreviation for million gallons of water per dap_ + As•used in this contract, "NIGD" refers to a quantity of water during a- period of tine expressed •for convenience in, 'terms of an average daily- quantity during 2 calendar nonth (unless a different period of time is specified). The Volume of two NGD for a calendar month, for example, is calculated as follows: Two million gallons multiplied by ;he number Of days in such calendar month. Article II Sale and Delivery of {rater Subject to the terms and conditions of this contract; Seller agrees to sell and deliver (or cause to be delivered) tr R"Yer, Buyer's water t 40112 -1p requirements of untreated Water as hercin4 tur set forth in the respec tive minimum monthly quantity, at a point of delivery provided Section 2.4 h* rein, and Buyer - agrees to purchase from Seller for in , Bfor uyer � untreated water requirements as hereinafter set out for -resale' during the tern of this contract in the respective minimum monthly quantities � and at the respective tines hereinafter set forth_ The quantities of untreated water to be purchased by Buyer and sold by Seller hereunder shall at all times during the term hereof equal or-exceed ninety portent (901) of Buyer's monthly total , water requirements- Bu % -er•s total untreati water iequirements shall mean the total quantity f � ' - • �"� _ q ty a� uxttre�. =ed hater _ . Buyer needs to conduct operations, use or resell "within the boundarias of the Baytown Area Dater Authority_ - 2.2 Notwithstanding-the previsions -of Section 2.I,•above'the minimum monthly quantity of untreated Crater Buyer is obligated to purchase from Seller; or pay for, whether taken or not, shall be Initial delivery through 3rd year thereafter .6 14GD = 4th year through 7th year g VSGD 8th year through 11th year 10 MGD 12th. year through 15th year 13 MGD _ i6ta year 29th year 16 NO To' determine the minimum monthly quantities for Buyer, the zia3.mum in terms *of tiGD (from the above tabulation) shall be multiplied by the number of days in the month. As used herein, "Initial Delivery" means the date on erhich Buyer_ is ready to receive untreated water from Seller, )f which date Buyer shall give Seller six (6) months advance notice, but which in no event shall be later than December 31, 1980, subject to the profgsions of Section 13.4 herein. - 2.3 In the event Buyer wishes to reserve for itself additional monthly minimum quantities of untreated water during any, of the time period$ set forth in' Section 2.2 it may notify Seller in writing of i desire to do so, and in the event Seller then has untreated'- water -3- 40112 -lq available for sale to its customers, it Will cuter into a suitable:. ' amendnent hereof with Buyer increasing the nininun ;ao,«;1a . take or Day coianitment of Buyer for the rer:,aining period of the term of this contrac- Fn the event however, the tot 'I rcquirenents of purchasers from Seller Plus Seller's other obligations or commitnents Uith respect to untreated water exceed the quantity of such water Seller has available for sale or delivery, Seller may pro rate . such addition* al requirements .asbng its customers and its other obligations on a fair and equitable basis_ 2.4 The point of delivery for untreated water sold under this contract shall be designated by Buyer at a• 4 Y goint i edi.ately 2djacent to the Coastal-Industrial later Authority Canal between the points marked "X" and'" X" on the attached Exhibit IWI, PROVIDED, that Seller reserves the right to reject any point of deli rerp`designates by Buyer which tyould; in effect; interfere with or increase th e. cost of any Qther facilities or operations which Seller miight.wish to CO rstruet or implement, or plan to construct or implement, along or in connzctioa with said Canal. Buyer agrees to give Seller notice in trriting of an,; point of delivery designated by Buyer, and Seller agrees to accept or reject such point of delivery by a prompt response in uniting_.` . In the event that Buyer should fail to designate a point of deliver acceptable :to Boller b; the date of 7nitia3 Delivery [as defined in Section 2.2 herein) Seiler may designate the point of delivery for Buyer, and such designation.s.. 1 be forever binding on Buyer. _ 2..5 Buyer covenants and agrees to construct and operate a reserrai and /or forebay between the point of delivery and Buyer's treatcteat facilities. Said reservoir and /or forebay shall be of sufficient capacity to insure that r the rate of t.�thdra►:al pi untreated Zzter from the Coastal Industrial Water Authority Canal shall at all times � be reasonably steady and even. Buyer agrees to suhmit plans Of said reservoir and /or forebay to Seller for the approval of Sells: prior to the commencement of conStruetion of said reserroir and /or forebay. -4- 40112 -ir Thereafter, Buyer agrees to construct and operate said reservoir and /or forehay in accordance with the plans so approved_ Article III Rate and Prices 3.1 All water sold and delivered by Seller to Buyer or which SBuyer is obligated to pay for 'hereunder, whether taken or not, shall be under and subject to the provisioas'and in consideration of the - price Or prices set forth in Chapter 49, Article Ir, Division 2, eittitled "Charges for Untreated dater ", of the 1968 Code of Ordinances. of the City of Houston, as it may be amended, the provi.sions of iwhach are incorporated herein by reference as fully and completely as if - copied herein in full. - Whenever the quant�ty'of hater taken during a monthly period by -- -Buyer exceeds by ten percent (10 %) the minimum Monthly quantity obli- gation of Buyer designated herein, an additional charge-of ten percent (10t) upon the entire monthly charge trill be made ever what the monthly charge would be as deterrine.d from the Block Schedule applicable to Buyer. 3.2 By reason of Buyer's cosmitment herein, the block schedules or 'rates applicable to contracts wherein the Buyer agrees to purchase at least ninety percent (90 %) of all its monthly water requirerents from Seller shall apply. The initial blvd' schedule applicable to Buyer shall be Ordinance Schedule B thereof_ ' 3.3 Additionally, Buyer understands and agrees that Seller tray at any time, by ordinance duly enacted, increase or change the price or prices for untreated water as set forth in such block schedules, provided, however, that except where an independent rate analysis indi -' cafes that a certain rate increase is required, the price or prices for untreated t.ater shall not be increased percentagewise as to Buyer during any 12 month period of the term of this contract in excess of th Proportionate percentage rate increase ihh Seller's dor..estic potable tracer rates approved i- r;thin such Vielve (12) month perio3. 5.4 The total price or charge to Buyer for stater hereunder- shall be the price or prices'for water referred to in Section 3.1, 3.2 or 3.3 above. Article IV Reports Withi.i thri.ty (30) days after the end of each quarterly period ing the term of this contract Buyer shall furnish Seller with a -- satement, under oath, showing the quantities and sources.of all water treated' for use or resale by Buyer. Article i* - - •_ Measuring Equipment S.1 At Buyer's own cost and expense, Buyer shall furnish and Just at the point of delivery hereunder, measuring equipment properly eruippe with meters, totalizers and recording devices of standard type for � measuring and recording accurately the quantity of water delivered-under this contract,.the meters to have a capacity for measuring the quantity of water delivered within an accuracy tolerance of two percent [24} plus or minus for a given rate of flow, and Buyer shall also installs ,.Operate, and maintain, as required by Buyer, pressure regulating devices and equi' went. Such measuring equipment shall be approved by Seller, and after " -- Seller's approval of the installation, shall become the property of Se I. 5.2 During all reasonable hours, Seller and Buyer and the Trii:ity River Authority of Texas shall have access to such - measuring equipment. so installed. Buyer shall have access to all records pertinent to determining the measurement and quantity of untrea,ed stater actually delivered hereunder, but the reading of the meters for purposes of billing shall be done by Seller. 5.3 After approved installation thereof. Seller shall perform, at its own cost and expense, periodic c,.libration tests on the primary neasurinew equipment so installed in order '.o Maintain the accuracy -6- . . 40112 -1t tolerance within the guarantees of the uanufacturer thereof, not to exceed a• tolerarce of two percent (2y), at least once eve _ ry twelve (12) months. At reasonable intervals, Seller agrees to properly check and calibrate the flow recording and totalizing measuring equipment for the purpose of ascertaining their condition of accuracy. Seller agrees to notify Buyer at least forty- eight -(48) hours in advance of the time any •� est is to be wade, 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 reasuriny equipment. If any'tests or -calibration chacks'sho`w a condition of inaccuracy, adjustments shall be made - immediately so "wilt, measuring equipment will register correctly within the aforesaid - accuracy tolerance of two percent (z�} plus or idnus, for $ given rate Of flow. In addition; Buyer shall have•the.right-to independenrl)r check said treasuring equipment at any time upon notificat;on to Seller or its authorized- representative. '. + �^ SA Seller may install, at its own cost and expepse, such check - meters in Buyer's pipeline or canals as may be deemed appropriate anci Seller shall have the right of ingress and egress to such check mL-ters - during all 'reasonable. hours; provided, however, that billing computation. shall be on the basis of the results o; the'measuring equipmant set J forth in Section 5.1 above. S -S If, upon an test th a cen Y e p r -cage of inaccuracy of any . measuring equipment is found to be in excess of five percent.(st) for the aforesaid given rate of flow, then Buyer's account shall be-adjusted- for a period extending back to the time when such inaccuracy began, if such tine is ascertainable, and if such time is not ascer�ainable, fo. a period extending back one -half (1/2) of the time elapsed since the date of the last test, or, the date of the last adjustment to corre the registration, whichever is later, not to exceed forty -five (45) days If, for any reason, the measuring equipiment is out of service or out of repair and the amount of untreated water delivered cminot be ascertained or computed from the reading thereof, ua *_er delivered curing the period 40112 -1u shall be estimated and agreed upon by the parties hereto on the basis of the best data availabip. ' S.5 As used in this Article V the' ex expression TM , P g�ven rat, o r flow" means the total quantities. of untreated water delivered during the preceding period (usually'a calendar month) as reflected by the recording devices, divided by the nuiber of days in the period. - Article VI - _.. _ Billing and Pa ent - 4. 6.1 As used in this Article VI, the term " c'tzv'* sham taean a period of tiienty -four (24) cons ecuiiVe hours beginning at 8:p0 o'c1acY k -n. on one calendar day -and ending at 8:00 o'clock a-n. ou the next - succeeding calendar day, and the term "month' shall dread a period beginning at 8:00 o'clock a.m. on the first day of a cal endar mouth -and ending at 8:00 o'clock a.m. on the first day of the next succeeding.` calendar month, except that the first month or partial noati shali •. begin on the day of initial delivery of water hereunder,'' -and the miai�+ monthly payment, if any,-shall be prorated for such partial month. - b.2 'The measuring e!quipnent shall be read oii the day at the.tnd of each month (or at such period of frequency arranged between the parts at 8:00 o'clock a.m., or as near thereto as practicable_ _ 6.3 The quantities of untreated water for which payment is due Buyer hereunder in any Month shall be the greater of: (a) the total quantity of untreated water delivered to Buyer in such month determined as set forth in Article v hereof, or (b) the total quantity of untreated eater Buyer is obligated to tale hereunder, or pay for if not takezt,., in such month, pursuant to the provisions of Section 2.2 hereof. 6.4 Seller shall render to Buyer at Buyer's principal office as specified in Article ?CIII hereof on or before the tenth (10th) day-'of Mm each calendar month a statement sho:.inN the c!"a -ntity of Untreated u&ter k for % hi(.h payment is dice hereunder during the preceding Mane l,avntnt Of such statements shall he due and payable to Seller at its offices in Houston, Harris County, Texas, on or before thet►•:entieth (20rh) day after receipt_ of such statement. 6.5 Should Buyer fail to tender payment of any amount when due, interest thereon shall accrue at the rate of ten percent (10S) per annua from the'date when due until paid. • . 6.6 In the even_ t Buyer fails to tender payment,of any amount when due and such failure continues for forty -five (4S) days after notice +- in writing to Buyer of such default, Seller may suspend delivery of untreated•water hereunder, but the exercise of such right sh&U be in -addition to any -other remedy available to Seller- Article FI1`" .. ' Title to and Responsibility for Dater ' 7.1 -Title to, possession and control of water shall remain in .. Seller, or its assigns, ' to the point of delivery as provircls$. 5cctiosi 2.4 hereof where title to, possession and control of grater delivered' under.this contract shall pass from Seller to Buyer, and Buyer kill take such tie, 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 eater deliverable hereunder anti solely responsible for any damage or injury caused thereby until the same sisal.] have been delivered to Buyer at such point of delivery, after whys delivery Buyer shall be in exclusive control and possession thereof iand solely responsible for any injury or damage c %used thereby, ana • each party- respectively shall save and hold the other party harmless j from all claims, demands and causes of action which nay arise while said water is under its respective ownership and control. Article VIII ' Term This contract shall be for a term of twenty (2p) years beginning on the date of Initial delivery. -9- 40112 -lw Article IX Performance by Seller and Buyer 9.1 Seller covenants and agrees that it Will not contract for the sale of water to other users to such an. extent or for such quantities - as to impair Seller's ability to perform fully an4 punctually its obligations to Buyer under this contract. In case of temporary short == of water notwithstanding Seller's compliance with the provisions of this Article ILL, Seller shall distribute the' available supply � ibt h i Pp Y as pravid by the laws of the State of Texas, particularly Section 5- 039(a) of the Texas Hater Code It.is specifically agreed and understood that -thy.' agreement contemplates that Buyer will treat and resell the water parr- chased pursuant to the terns hereof. 9.2 Pursuant to that certain contract entered by Seller and the . San Jacinto River Authority, a copy of V =hick is attached hereto for all purposes, and notwithstanding n other i7 g Y provision of this contract ; to the contrary, Buyer covenants and agrees that it takes Water under this contract from Seller for the limited purpose of treating and Sell the sane as potable treated water to the City of Baytown and other Iocjq governmental entities for distribution through the Municipal water systems of such local governmental entities; such water to be used for municipal purposes (as defined by Rule 12$_C�_15_CQ1 -.C4I, probiulgsted by the Texas Water Rights Commission on December 1; 1975) and for no other purposes, and only within the boundaries of the Baytown Area flat Authority as such boundaries existed on June 1, 1976; PROVID:n,-HOALTEB,, that no such water shall be sold,.distributed or used other than-for . residential household and other strictly domestic P" urposes within the- . area bounded by Interstate Highway No- 10 on the north, Sjolander Road on rest, Archer Road'on the south, and Cedar Dayou on the east, Without the uritten consent of the San Jacinto River Authority and Sell Buyer agrees to include covenants similar to those contained in this Section 9.2 in any sales or contracts for sale of Water by Beyer to any other entity. Buyer agrees to subnit the wordin,g of such covenants for the approval of Seller. -10- 40112 -1x V.3 Buyex understands and agrees that either Seller or the S=r. Jacinto River Authority, or both, nay enforce the covenants contained in Section 9.2 herein by an action brought directly against Buyer- in the c+.ent that Seller maintains any legal proceeding to enforce such covenants, Buyer agrees to indennify.Seller in the amount of all - expenses relating to the legal proceeding, including, but not liai:ted - .to, costs of court and reasonable attorney's fees_ . • 9.4 Buyer acknowledges that Seller may be liable to the San Jacinto River Authority.for monetary damages in 'the event that Buyer_ (or any purchaser of water from or through Buyer) fails to comply with the restrictions and limitations on the tale of water set out in Section 9.2 herein. Buyer acknowledges that such monetary daza:.es would amount to seventy -five percent (M) of the consideration or revenue - received by Seller far the estimated amount of rater distributed, sold, or used in violation of such restrictions or limitations, plus all' - litigation expenses, reasonable attorney fees, and all other remedies available to the San Jacinto River.Authority. Buyer hereby agrees to totally indemnify and save Seller harmless from and against any, such expenses and liability which Seller might incur, or any loss Seller might suffer,'as a result of any failure by Buyer, or any purchaser. of water from or through Buyer, to comply with such restrictions aad - limitations. Buyer further agrees to include covenants in any sales or contracts for sale of water by Buyer to any other entity to insure that said - other entity will likewise indemnify and save Seller harmless_ Buyer agrees to submit the wording of such covenants for the approval of_Selle= Article Renedies Upon Default 1 10.1 In the event of any default by Buyer in the performance of ,n� of Buyer's obligations hereunder which shall continue for a period of thirty (30) days or more, Seller shall give i.ri.ttcn notice to Buyer specifying the ratter frith respect to which Buyer is in default and -11- 40112 -1y requesting that the some be remedied With pro- "ptr - -ess ,., .'.is ?arch_ In the event Buyer uithin sixty (60) days after the nailin;; of such notice by Seller' to Buyer has f-eZled to reeved;- the matter in default, Seller may suspend further delivery of untreated hater to Buyer here_ under; and in the event such default on the part of Euyer continues for an additional thirty (30) days, Seller may, by an additional written &otice to Buyer, cancel and terminate this contract, whereupon all 4kghts of Buyer and all obligations of Seller hereunder shall term3ltate .and be at an end. 10.2 During any monthly period in which Seller is unable to' �- deliver to Buyer on each day the minimum MGD specified hx Section 2_2 hereof, whether as a result of temporary curtailments resulting fry temporary shortages as provided in Section 9.1 hereof or of force Majeure, as provided in Article X1 hereof, Buyer shall'be obligated to pay Seller only for the greater of (a) the quantities of untreated .;ater'xctually: delivered to Buyer under this contract during such month or.(b) the mini -. mum monthly quantity.o£ water shish Buyer is obligated to- take and pay for, or pay for, whether taken or not, during such month multipliea by '. a fraction, the numerator of which is the number of calendar dayg in the month in which there is no curtailment and the denominator of which is the number of days in the calendar month. During any such period, Bayer .shall be free to obtain untreated water from other sources. - 10.3 The failure of either party to insist -in any one or more- instances upon performances of any of the terms, covenants or conditions of this contract, shall not be construed as a waiver or relinquishment the future performance of any such tern, cotenant or condition by the other party hereto, but the obligation of such other party with ' respect to future performance shall continue in full force and effect. Article XT Force Majeure 11.1 In the event either party is rendered unable, ioholly or in part, by force majeure, to cprry out any- of its obligations under this 40112 --1z contract, or in the event Buyer is rendered unable, wholly or ij � y= Y psrt, by farce najeure to operate Buyer's treatment facilities, it is a ^rce•1 ` i r that on such party's giving notice and full particulars of stIc;t force najeure in writing or by telegraph to the other party as soot as possiflc' 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 erformance at the earliest practicable time, shall. be suspend _ -d 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 remedie with all reasonable.dispatch. - 11.2 The term ' *force najeure ", as used herein, shall include but _ not be limited to, acts of God, strikes, lockouts or other indlustrxal, distrubances, acts of the public enemy, war, blockades, insurrections, _ riots, epidemics, landslides, lightning, earthquakes, fires, storms, floods, washouts, droughts, tornadoes, hurricanes, arrests and restraints of government and people, explosions, breakage or damage to machinery,- = equipment, pipelines or canals, and any other inabilities of either party, whether similar to those enumerated or otherwise, and r-ot v:ithia the control of the party claiming such inability, which by the exercise of due diligence and care such party could not have avoided_ 11.3 It is understood and agreed that the settlement of strikes or lockouts shall be entirely within the discretion of the party•hay.*ing the difficulty, and the above reguirenent that any force najeure be remedied with g11 reasonable dispatch shall not require the settlerent Of strikes or lockouts by acceding to demands of t.e opposing party' When such course in inadvisable in the discretion of the party haring the difficulty. Article tII Addresses and \atices 12.1 Until Buyer is otherwise notified in writing by-Seller. the address of Seller is and shall remain as follows_ -13- 40112 -laa City of Houiton Dater Division P. 0. Box 1562 Houston, Texas 77001 Until Seller is otherti -ise - notified in writing by Buyer, the 2dareis of Buyer is and shall remain as follotics: Baytown Area Eater Authority . • 2401 Market Street P. 0. Box 424 Baytown, Texas 77520 12.2 All written notices, statements and parents required or ' permitted to be given under this contract from one party to .;.he- 'ether sball be deemed given-by the deposit in a United States Postal Service mailbox or receptacle of certified or registered mail, with proper. •Postage affixed thereto, addressed to the .respective other.part at the - address set forth above or at such-o4ber address as -the pasties respec- tively s.:sll designate by zrritten 'notice. Article XIII . Miscellaneous Provisiens - 13.1 This contract shall biiul o nefit the respective parties -and their legal successors, but shall not etherisise.be assignable, in whole or in part, by either party without first obtaining the written consent of the other; Provided, however, that Buyer shall have the right" without any consent of Seller, to pledge or otherwise assign Buyer *S rights hereunder to the extent required by any mortgage, deed of txwt or other similar agreement to which Buyer ntiay, now be, or jiereafter ' become, a'party- or to otherwise assign Buyer's rights and obligations • hereunder in connection frith any merger or consolidation of any sale . �f all or substantially all of Buyer's facilities, provided that Buyer's successor or assignee, as the case may be, is a responsible person and shall (by operation of la;. or otherwise) expressly assn me Buyer's - oblinations hereunder, PROVIDED, FURTHER, however, that no successor or assignee of Buyer shall be entitled to receive water 'under this -14- 40112 -1bb contract t,nles_ ;until the San Jacinto River Authority shall have given its written consent to the sale of ►.ater to said successor or f_ assignee. 13.2 This contract shall be subject to all iiresent Fnd future valid laws, orders, rules and regulations of the United States of erica, the State of Texas, and of any regulatory- body having juri.sdicti; 1�--d This instrument contains all the agreements nade between, the- parties. - 13.4 It is spa Lfically agreed and understood that this contra si subject to and shall not be effective until approval of U contract be- tweext the Saytot�-n Area Mater Authority and the City of Ba Y" w ton by the - voters of the City of Baytown as provided in Chapter 600, Acts of the 63rd Legislature, Regular Session, 1973. The contract between the Baytown Area .dater Authority and the City .of Baytown shall incltide • _ Provisions-which provide; 1. That for five (5) years beginning with the initial.delivery date, the City of Saytcnza ' will make advance payments to the Baytown_ _ Area Water Authority for the estimated -� quantities of water it expects to take, and j further, that the City of Houston who will be • furnishing the water that Baytown Area Water _ Authority will sell and deliver to the City • of Baytown, shall be a Third Party Rereficiary ' for the tern of such contract as to any - funds to be paid by the City of $ayto:wn for . .- ,V'tc* such water to the Baytown Area Water Authority. 2. That the foregoing provision is for the benefit of the City of Houston to induce Houston to contract for the sal- of water -25- 40112 -1cc to the Baytown Area Z:ater Authority :ind to secure the paynent of the suns which shall become clue under such contract bett:een the City of Houston and the Baytown Area Water luthority. . 3. That the City of Baytown will comply with • the restrictions and limitations on sale of water, in substantially the same form as r they appear in Section .9.2 herein, and that the'City of Baytown. will indemnify•and hold ' the City of Houston harmless from and against' the expenses and liability set out in Section 9.4 herein. If such approval by the voters of the City of Baytown has not � _1 been obtained within six (6) months after date of. execution by the -+ Mayor of the,City of Houston,_this. Contract'shall be null and void_ ' IN wr ?NESS WHEREOp, the parties hereto hav-e executed this contract in multiple copies, each of which shall be deemed -to be an original, but all of which shall constitute but one and the same contract, this .al day of a yr�r�tiGv✓ _ r_ , A.D. 1976, the date of j execution by the Mayor of the City of Houston_ ATTE CITY OF HOUSTON, TEXAS (SELLER) IlMe4 By: b V� ' 1'0 -16- TY L .RE'yAR CITY OF HOUSTON, TEXAS (SELLER) IlMe4 By: b V� ' 1'0 -16- . . 40112 -idd BAYTD -JN AR S WATER AU iRORITY •7 • BAYTOWN, HARRIS COUNTY, T£Y.AS ' � , Sec Buenz A tar Y By: Paul R. Jason, President i - APPROVED AS TO CONFORMITY WITH PARAGRAPH. 2 OF THE CmTpA —Ci Dr-.r4EEM IRE CITY OF HOUSTON AND ME SAN JACINTO RIVER AUTHORITY Dr,TED JUKE 22. 1975: SAM JACINTO RIVER AUTHORITY p ATTEST: By: co" . Ge _a ifanp -Ser Assistant City Attorney I 40112 -lee THE STATE OF TEXAS Z C ' , � 'i _ OF FAiPI S BEFORE ME, the undersigned authority, on this day personall)r appeared FRED HOFHEINZ, Mayor of the CITY OF HOUSTON, TEXAS, know* to ice to be the person chose nave is subscribed to the fore- going instrument, and acrnowledged to ne that he executed the same for the purposes and consideration therein expressed, in the - - capacity therein stated, and a: the act and deed of said CITY OF y .HOUSTON, TEXAS. GIVEN UNDER MY HAND AND SEAL OF OFFICE; this .e:d= 'day of " 1976. 'I ota is r . Harris County, Texas - ...� THE STATE OF X - COUNTY OF BEFORE ME, the undersigned authority, on this day personally appeared ' known to rae to be the person .hose rune is" - subscribea to the foregoing instrument, and acknowledged to me that he executed the sane for the purposes and consideration therein -_ expressed, in the capacity therein stated, and as the act'and deed of said GIVEN UNDER ;-iY HAND AND SEAL OF OFFICE this day of 1975. -13 - Votary Public in gna for 40112 -if f A- I'TENDA TORY CONTRACT BEWEEN SAN JACINTO RIVER AUi- iORIT'f AND THE CITY OF HOUSTON;. TEXAS THE STATE OF TEXAS ) ' COUNTY OF HARRIS THIS CONTRACT executed as of the day of 1976, by and between the SAN JACINTO RIVER AirjHOPT_TY, ( "SJP.A") a. conservation and reclamation district and political seodiviis' LOU - of the State of Texas, and the - CITY O, HOUSTOV, TF.r'.AS, ("the City ") _ a municipal corporation: _ -The provisions of Section Vii of-the contract between the parties dated March 27, 1944, shall have no application to sales.. + of Trinity River raw water by the City to the B2yt01M Area ifater . Authority (" 11"A "), a municipal corporation created by Ch. 6pp, p_- 641,'Sixty -Third legislature, Regular Session,_1973,; far the' limited purpose of treating and selling the same as potable treated water to the, City of Baytown and other local governmental entities for distribution through the municipal water systems of such local governmental entities, such water to be used for municipal purposes, as defined by Rule 129.01.15001 -_041, promulgated by the Texas Water Rights Commission on December 1. 1975, and for no other pur- poses, and only within the boundaries of B -TA as such boundaries exist on the date of this contract; PROVIDED, that no such water shah, be sold, distributed or used other than fc•r residential ._ • household and other strictly domestic purposes within the area bounded by Interstate Highway No. 10 on the north. Sjolander Road• on the west, Archer Road on the south, and Cedar Bayou on the east. Vithout written consent of SJPk. 2. The City shall insure that all instruments relnti.ng to the sale of water to EAWA include appropriate covenants on 40117 -Igg _ 5 the Dart of BAWA to observe the limitations and restrictions 3 imposed on the City by the contract dated March 27, 1944. as : modified by this contract, and to- include co' vena -its in all sales and contracts for the sale of Later by BAWA insuring • compliance with such restrictions and linitat±o:es. The word_ inn of the covenants giving effect to such restrictions and limitations shall be submitted to the General Manager of the SJc'tA for approval as to conformity to this paragraph prior to F` any sale by the City subject to this contract. The City s. . ball. = : be responsible for the enforcement of'such covenants, but try shall also be enforceable by SJRA directly.' 3, In the event any water delivered by the City to BAAA under this contract is used in violation of.such restrictions or limitations. SJRA shall be entitled to recover from the City as liquidated damages an amount equal -to seventy -five" percent (75 %) of the consideration or revenue received -by the _ City for the estimated amount distributed, sold or used in violation of such restrictions or limitations,-plus all liti- gation expenses and reasonable attorneys fees. ' The recovery - of such liquidated damages shall be in addition to all other remedies available to. SJRA. 4 .. In consideration of the foregoing limited waiver by SJRA of the restrictions and limitations imposed by the - contract dated March 27. 1944, the City shall_pay to the Sim an amount equal to $50 per day during such period that the City receives payment from BAtti *A for crater .sold under this waiver, but such payments to SJF.AA shall not extend beyond a period of 20 years. Payment shall be made on a quarterly basis. on or before the 10th day of the month following each calendar quarter. f' i 5. 40112 -lhh The contract shall not be assignable by either. -party ? without the written consent of the other; however the obligations' imposed hereunder shall be binding on their successors or assigns The waiver provided herein shall be applicable only to sales by the City to BAWA and shall not be applicable to any sale by- the City- to any other entity, including, eny successors or assignm entity to BAUM, without the written consent of S,31RA_ 6. Except as amended by this contract and the contracts between the parties dated July 19, 1955, May 9, 1968 and the contract dated September 1, 1971, the provisions of the lurch 27, 1944, contract shall remain in full force and effect. IN WITNESS IMI ERECF, the parties hereto, acting under the_ authority of their respective governing bodies have caused this` contract to be executed on this ;k;)- day of lgy in "duplica.te originals, each of which shall constitute as origfaa L ATTEST: : secretary ATTEES;T:ee SAN JACWTO RIVER AUTRORIrf vice e CITY OF HOUSTON ` By _ s City Secretary CaLR4TERSIGNED : 1 ity Contro er POINTS OF DELIVERY % • 40112 -1.11 1. Thompson Road @ 1 -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) S. Barkaloo and Massey Tompkins 9. Spur 201 and Southern Pacific R. R. 10. Lobit and 1st Street % • 40112 -1.11 JL 5 to ■ a ,`� Mw Mr WAN wow Ar r.T' Lam_ � Lam- Y�. �, t� ,( ��� �•� 7c •d CA .47low �% . �- - .v Isl r;, At,, WFt=7AjMBVPW%T 1114 L,—I-- rZ