Ordinance No. 3,816C]
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ORDINANCE NO. 3816
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
BAYTOWN$ TEXAS, AUTkODRIZM AND OffiECTAgG THE MAYOR AND
CITY CLERK OF THE CITY TO EXECUTE AND ATTEST TO A '
WASTEWATER OL943SAL CONTRACT WITH THE
LAr®W. AT CEOiAp
BAYOU JOINT VENTURE AND PROVIOM FOR THE EFFECTIVE
DATE HEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOV t,
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 contract with the Landing at Cedar Bayou Joint Venture. 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 immediately from and after its
passage by the City Council of the City of Baytown.
INTRODUCED, READ, and PASSED by the affirmative vote of the City
Council of the City of Baytown, this the 12th day of April, 1984.
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WASTEWATER DISPOSAL CONTRACT BETWEEN
CITY OF RAYTOWN. TEXAS AND THE LANDING
AT CEDAR BAYOU JOINT VENTURE
THE STATE OF TEXAS §
§
COUNTY OF CHAMBERS §
® 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 THE LANDING AT CEDAR
BAYOU JOINT VENTURE with H.T.F.C., INC., a Texas Corporation, as its
managing partner, on behalf of proposed Chambers County Fresh Water
Supply District No. 1, Chambers County, Texas, . a body politic and
corporate and a governmental agency of the State of Texas, to be
organized under the provisions of Article XVI, Section 59 of*the Texas
Constitution and Chapter 53, Texas dater Code (both collectively
referred to as '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 desire to sell treatment capacity to the
District.
2. The term District, as used herein, shall refer to both the
Joint venture and the proposed Chambers County Fresh Water Supply
District No. 1. The Joint venture will initiate proceedings to create
the Fresh Water Supply District as soon as the first five (5) dwelling
units in the Service Area are occupied. The Joint venr.ure shall be
• responsible for the obligations, rights and duties specified herein
until such time as the District may be duly created and accepts an
assignment of this agreement. In the event the joint venture shall be
unable to create the proposed District, or such other similar
governmental entity acceptable to the City, within six (6) months from
the date hereof, it shall create a non- profit community improvement
association within the service area, as defined below, and assign this
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contract to said entity. At such Use the City shall consider approving
® said assignment provided the non - profit association has the power to
enforce valid deed restrictions and covenants against the lands and
landowners within the service area for non - payments of expenses incurred
by said association on behalf of the land and landowners hereunder.
3. The District will own a savage collection system serving the
'Service Area- and desires to purchase treatment of its sewage from the
City.
4. The District is, or will be, empowered to collect, transport,
process, dispose of, and control all domestic, industrial or communal
waste whether in fluid, solid, or composite state as a matter of
statutory law, contract or custooer service agreement..
S. The District is authorized to purchase, construct, acquire,
own, maintain, repair or improve or extend inside or outside its
boundaries any and all works, improvements, facilities and plants,
necessary and incidental to the collection, transportation, processing,
disposition, and control 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 authorized 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) as it pertains to special units of
government.
HOW, THEREFORE, and in consideration of the premises and the mutual
covenants and agreements herein contained the parties hereto do mutually
agree as follows:
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ASREFAENT
ARTICLE I
Definitions
The terms and expressions used in this Contract, unless the context
shows otherwise, and in addition to other defined terms herein, have the
following meaainga;
® 1.01 'City's System' shall mean the system for the collection,
transportation and treatment of waste, and any extensions or additions
thereto, currently serving or that may be constructed to serve the City.
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 extensions thereof and
additions thereto, to be constructed to serve the District, including
those lines and facilities necessary 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 business from the
development of any natural resource, or any mixture 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
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sanitary sewer system.
1.06 'Interconnection" shall mean those improvements necessary
for the connection of City's System and District's System as s.t forth
• herein and more particularly described as the proposed City of Baytown
Sanitary Sewer Collection Line to be located adjacent to the District's
final lift station along the east side of Cedar Bayou within the Service
Area.
1.07 "Prohibited Waste' shall be those discharges prescribed
by the City of Baytown's Industrial Waste Ordioance as set forth in
Article II of Chapter 54 of the Code of Ordinance of the City of
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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 proposed District as shown on Exhibit 'E' attached hereto.
1.09 "Sewage' shall mean wastewater excluding industrial
wastewater discharged by a person into sanitary sewers and in which the
average concentration of total suspended solids is not more than 250
mg /1 and B.O.D. is not more than 25O mg/l.
1.10 "Treatment Plant' or 'Plant' shall mean the City's :lest
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 easements in connection therewith, and
obtaining the approval of any regulatory agency shall be borne by the
• City. Furthermore, the District's system shall initi ally iecltde a'1 of
the sanitary sewer line and appurtenances to be installed and paid for
by the District which shall run from the District's final lift station
westerly under Cedar Bayou to the City's lift station at Racoon Drive.
Said line and appurtenances are depicted on Exhibit "D ", attached to and
made a part hereof.
2.02 City Approval of Plans and Specifications. Prior to the
Initiation of any construction of the District's System, the engineers
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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 act of
as bunt' drawings, which meet the approval of the Director and a
® certification that the District's Systea 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 Diatriet'a
System during the term of this Contract. At such time as the City might
approve the was built' drawinge, the Director shall be authorized to
accept on behalf of the City that portion of the District's System
running from the District's final lift station to Racoon Drive as part
of the City's System. The District shall submit all documents
® reasonably required by the Director for transferring said segment of
sanitary sever line and appurtenances to include evidence of title and
assign of easements and necessary property rights.
2.03 Inspection. The District specifically grants the City
the right to inspect at any time any and all construction 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 construction, 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- conformance 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 at
the District's final lift station. The parties to this Contract may by
® mutual consent designate additional or substitute points of discharge to
serve the Sanitary Sewer Collection System.
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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 vobmw
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waste at such times as provided in Article IV of this Contract,
consistent with other limitations as stated herein.
2.06 Commencement of Use of Interconnection. The Interconaec-
• tioa shall be place into operation only upon the inspection and approval
of the Interconnection :kcal the District's System by the engineers of
City and District.
2.07 F1= 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 recording device, also acceptable to the
Director. capable of recording total flow on a daily basis for at least
s week's time including peak daily flows, as stated in E*ibit
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 calibrate it for accuracy at
least once every six (6) months. The City shall have the right to
Inspect this device at all times and to take readings from it. If the
City's inspection shows that the metering device is failing to register
fifteen percent (15Z) or more of the actual wastes being discharged,
then the District shall bear the cost of the inspection and
recalibration. The District shall, within ten (10) days after request
of the City, reader any and all repairs or replace said device if
necessary to provide accurate readings. The District 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 Ownershio of System. The District shall own the
District's System.
3.02 Operation of the System. The District shall operate and
maintain, at its own expense. the District's System and will promptly
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® repair any of its facilities so as to prevent infiltration. However,
Should the District fail to'operate sad maintain the District's System
in a manner consistent 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 sever
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 requirements of the
City. In order to enforce this provision, the City inspectors shall be
permitted to act for and on behalf of the District with or in lieu of
the District operator and the District will enforce any notices issued
by such inspectors. If any such notices are not complied with, the
District shall discontinue sever service when this may be legally done
pursuant to the District's Bate 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.
In the event of any conflict between the City Plumbing Code for
sewer facilities and sound engineering practices for mobil: home unit
® sewer facilities, the Director shall be authorized to grant a variance
to said Code provided the same is supported by federal and /or state
approved engineering design practices.
3.04 Outside Service Contracts.
The District agrees that
should the District desire to delegate responsibility for maintenance or
® for supervision of its System to any individual or entity other tha►t its
own employees or a sewage plant ope ator holding a valid certificate of
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competency 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 contract or otherwise, must be
approved by the Director, whose coasent shall rot be unreasonably
withheld, prior to execution 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 Evect of Default. Any outside service
agreement, whether submitted to the City or 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 or provide
for, a$ a matter of contract or service agreement, the Discharge of
Industrial Waste from within its boundaries into its Sanitary Sever
Collection System. and in turn into the City's System, including any
requirements for pretreatment before discharge into the District's
System if necessary to meet the quality requirements as stated in the
City's Industrial 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;
(S) Type of pretreatment proposed;
and such other Informaiton 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
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Is. received, including compliance with all the requirements of the
City's Industrial Waste Ordinance, a copy of which is attached bereto 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 commercial activity and those
Industrial waste standards stated in the City's Sever Pate Ordinance and
Industrial Waste Ordinance. 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 or in lieu thereof satisfactory contractual
commitments. 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 Industrial Waste Ordinance, including as
a minimum B.O.D., T.S.S., C.Q.D., oil and grease, and heavy metals, such
analysis to be performed by an independent testing laboratory approved
by the Director.
3.06 Waste to Comoly with City Ordinances. Discharges 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 Prohibited Wastes originating from within the District.
Failure of the District to enforce said City Ordinances shall be
considered an Event of Default.
3.07 See a e 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
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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 adeq•;iate 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 /or
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 non - compliant connections. The District will routinely inspect
all connections at the time made and continue to monitor the System as a
whole to detect 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 agrees 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 purpose of safeguarding the
City's System.
3.08 Participation in State and Federal Grat• Programs,
Contribution to Costs.
The District recognizes that the City is presently participating in
a federally funded grant program for the construction of sewage
treatment 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,
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certain respoaaibilities 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 recognises 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 each programs and to bear the
District's Fro rata share of the expense of such compliance. Nora,
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 characterise 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 parefunded
cost of any remedial measures necessary to improve the District's System
compliance with state or federal requirements and agrees to see that
such remedials measures are timely taken. Such steps are not exclusive,
and District agrees to take all steps necessary 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 Deliver 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 aide 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 show on Exhibit 'C' attached hereto and
incorporated herein for all purposes.
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Thrz values listed on Exhibit 'C' Column 4 are the voL mea of
waste which the City shall accept on A daily basis, including peak
flows, from the District rat the dates shown and for the compensation
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r. stated in Section 5.02(a) herein, without Additional. Compensation as
a provided in Section 5.02(b) herein. The volumes shown at each date are
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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 represents an
allowance of 1002 over the permitted flow for high flow coutiggencies
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 provided 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
provision shall constitute an Event of Default.
ARTICLE V
PAYMENT AND TERMS
5.01 Capital Contribution. As a contribution a the capital
® investment of the City and in consideration for connection to the City's
System, the District shall pay to the City the amount of ONE HUNDRED
SIXTY SEVEN THOUSAND FIVE HUNDRED TWO AND NO /10D ($167,502.00) 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
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this Contract. Additionally, in order to further secure City's
assurance of the availability of such funds. the District will provide
s` or cause to be provided to the City an Irrevocable Letter of Credit,
payable to the City, in a form acceptable to the City in the amount of
ONE HUNDRED SIXTY SEVEN THOUSAND FIVE HUNDRED TWO AND NO /100
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($167,502.00) so that, should the City be required to ealargea or expand
-:� its wastewater facilities to provide service to District in the amounts
set forth herein prior to th- payment to the City by the District of ONE
f HUNDRED SIXTY SEVEN THOUSAND FIVE HUNDRED TWO AND NO /100 ($167,502.00)
F.
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 fends 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 smount of the capital investment
contribution has not been paid within two (2) years of the date of this
Contract.
The District shall be entitled to a credit against the above
capital contribution amount. and in consideration therefore agrees to
waive all claim and right to reimbursement amounts to which it may
become entitled pursuant to Chapter 25 of the Code of Ordinances of the
City of Baytown. Said credit shall be equal to fifty perce.t (SOX) of
the construction costs (as defined by the Texas Department of Water
Resources) of the necessary lines and appurtenances from the District's
final lift station to the City's lift station on Racoon Drive. or FIFTY
THOUSAND AND N0 1100 ($50.000.00) DOLLARS, whichever amount is less.
5.02 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 District's System, delivered to the City at the
point or points of discharge. and treated by the Plant. The average
consemmption for like uses shall be reviewed annually. The charge shall
be calculated on the basis of the metered water use or otherwise for
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each connected user, consistent with and following explicitly the
.provisions for such calculations found in the City's Sewer Bate
Ordinance or Industrial Haste Ordinance, whichever may be approprlatr
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 ropy 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 sever service within the City,
or Three Hundred ($300.00) Dollars per month, whichever arount 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 District 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 cooperate 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 representative of the parties.
5.04 Billing and Payments. Beginning on the date when the
City first commences taking waste from the District thrNugh 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
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the receipt of -the bill shall bear interest at the rate of ten percent
(10%) per annum from the date such indebtedness matured until payment.
If the District defaults on the payment of any bill, and the amount so
past due and unpaid, including interest thereon, 1s collected by the
City by suit, there shall be reasonable attorney's fees added thereto
not to exceed ten per cent (10X) computed thereupon for collection
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 realise
that due to unforeseen contingencies, the City may increase the charges
for such services, either by amendment of the rate schedule for like
services within the City limits upon which the service charges 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 gating 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 District explicitly recognizes the
City's right, to terminate service under this agreement and to seek. all
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remedies at law or in equity necessary to enforce the provison violated;
_provided however, that this agreemeet 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 oyportunity 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.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01 Force Maieure. 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 particulars of such force majeure in writing or
by telegraph to the other party as soon as possible after the occurrence
of the cause relied upon, then the obligations of the party giving such
notice, to the extent that due diligence is being used to resume
performance at the earliest practicable time, shall be suspended during
the continuance of any inability but for no longer period. Such cause
shall as far as possible be remedied with all reasonable dispatch.
The term 'force majeure' as used herein, shall include, but not be
limited to, acts of Cod, 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, pipelines and any other inabilities of either p.rty, 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 A ]oval. Whenever this Contract requires or permits
approval or consent to be hereafter given :,y 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
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®
before or after the time required herein. Such approval or consent on
behalf
shall be evidenced 'by an ordinance or resolution adopted b
p y the
governing body of the party, or by an appropriate certificate executed
F
by a person, firm or entity previously authorized to detarmine and
give
such approval or consent on behalf of the party pursuant to an ordinance
or resolution adopted by the governing body, unless states otherwise
,i
herein.
6.03 Address and Notice. Unless otherwise provided in this
Contract, any notice, communications, 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 State 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
If to the District, to:
The Landing at Cedar Bayou Joint Venture
ATTN: Mr. B. Ellis
2825 Wilcrest, Suite 312
Houston. Texas 77042
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
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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 success3rs and ;ball not be
assignable, in whole or in part, by any party without first obtaining
I` written consent of the other party.
6.03 ReBllatory 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 relinquishment 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 modification 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 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 eacb
numbered section in this Contract are inserted and.included sellely for
convenience and shall never be considered or given any effect in
construing this Contract, or any provision hereof, or In connection with
the duties, obligations or liabilities of the respective parties hereto
or in ascertaining intent, if any question of intent should arise.
6.10 Sever_ ability. The provisions of the 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
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40412 -1s
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 cot 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 representations, 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 dial or did not author this Contract.
6.13 Term. The 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) years terms unless either
party gives written notice of terminaton two (2) years prior to the date
for such automatic extension.
DATED this the day of 1984.
"City"
CITY OF BAYTOWN
BY:
Mayor
ATTEST:
City Clerk
(SEAL)
'District"
THE LANDING AT CEDAR
BAYOU JOINT VENTURE
r �
BY.
Presid 111le Ellis.
Presid of M.T.F.C.,
Inc., is Managing Partner
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Secre ry
(SEAL)
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SERVI
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REV 28 SEPT 83
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APPLICATION MAP
TEXAS WATER COMMISSION WASTEWATER DISCHARGE
PERMIT APPLICATIOII
FOR SEWAGE TREATMENT PLANT TD SERVE
LANDING
UNI CORPOR TED CHAAMSERS�'�cAowoT8AT0
OwN ®T
The Landing at Cedar Bayou J.Y.
HOUSTON, T. XAS.
TERRA ASSOCIATES, INC.
CONSULTING ENGINEERS
>13- 523 -22401 HOUSTON,TEXASE 360
21P 7709!
Cnra. 8r: Job Na 0340 -8301 0010 September, 19113
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