Ordinance No. 7,072940825 -2
ORDINANCE NO. 7072
• AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN
APPROVING AND AUTHORIZING THE EXECUTION OF A WATER SUPPLY
CONTRACT BETWEEN THE CITY OF HOUSTON AND THE BAYTOWN AREA
WATER AUTHORITY; AND PROVIDING FOR THE EFFECTIVE DATE
THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That the City Council of the City of Baytown,
Texas, hereby approves and authorizes the execution of a Water
Supply contract between the City of Houston and the Baytown Area
Water Authority. A copy of said contract is attached hereto,
marked Exhibit "A," and made a part hereof for all intents and
purposes.
Section 2: 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 25th day of August,
1994.
L•
PETE C. ALFARO, Mayor
ATTEST:
&- -e'2Z2 12. -L�
EILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
ACID RMIREZ, ity Attorney
• kgaUcoaociYB- 25- 94sppCONTRAC bawl
•
August 8, 1994
WATER SUPPLY CONTRACT BETWEEN
THE CITY OF HOUSTON AND
BAYTOWN AREA WATER AUTHORITY
THE STATE OF TEXAS §
COUNTY OF HARRIS §
THIS CONTRACT (this "Contract ") made and entered into by and between the City of
Houston, Texas a municipal corporation and home -rule city, which is principally situated and has
its City Hall in Harris County, Texas (hereinafter called "Seller ") , and the Baytown Area Water
Authority, a governmental entity and a body politic and corporate which is situated and has its
principal office at Baytown, Harris County, Texas (hereinafter called "Buyer "),
WITNESSETH:
WHEREAS, Seller has the right under certain water permits to divert waters from the Trinity
River Basin, the Lake Livingston Reservoir, and the Wallisville Reservoir, and may acquire water
rights in other basins and reservoirs; 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 has constructed
certain facilities to enable Buyer to receive the aforementioned water, treat it so as to make it
potable, and distribute it; and
WHEREAS, Seller desires to sell large quantities of Untreated Water from such source or
sources to Buyer and Buyer intends to purchase its Untreated Water requirements from Seller for
treatment and resale; and
WHEREAS, Seller and Buyer have found, and do hereby find, that Seller and Buyer are
authorized by the Laws of the State of Texas to enter into contracts for the sale of water upon
0 such terms and for the period of time as are hereinafter set forth, and Seller and Buyer specifically
�N1BIT A
F:1GD 24031C 0 H%C 0 NTRAC71 E W 810166
9 contemplate the provisions of Tex. Rev. Civ. Stat. Ann. art. 4413(32c) and Tex. Loc. Gov't Code
Ann. 402.021, as they have been enacted to the date of this Contract, in making these findings;
and
WHEREAS, Seller has entered an amendatory contract with the San Jacinto River Authority,
which grants Seller conditional permission to sell water to Buyer upon payment to the San Jacinto
River Authority the sum of Fifty ($50.00) Dollars per day during the term of this Contract.
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and
agreements herein contained, the parties hereto do hereby mutually agree as follows:
ARTICLE I.
Definitions
As used in this Contract, the following terms are intended and used herein and shall be
construed to have meanings as follows:
(1) The term "Beginning Date" shall mean the date that Buyer begins receiving
Untreated Water from Seller under this Contract or the effective date hereof, whichever is
later. Such date may occur after the effective date of this Contract as defined in Article
VIII. Provided, however, that if Buyer does not begin receiving Untreated Water within one
year of the effective date hereof, Seller shall be under no further obligation to supply Buyer
with Untreated Water.
(2) The term "Buyer's Facilities" shall mean facilities constructed by Buyer to enable
Buyer to receive Untreated Water.
(3) The term "Contract Quantity" shall mean the maximum quantity of Untreated Water
that the Seller agrees to reserve and sell to Buyer pursuant to Section 2.1 herein.
(4) The term "Contract Term" is defined in Article Vlll.
(5) The term "Director" shall mean the Director of the Department of Public Works and
0 Engineering of the City of Houston or any successor department and all persons designated
by the Director to administer the sale and delivery of Untreated Water to Buyer.
rAGD240MC0H%C0NTMCnEWB10166 -2-
. (81 The term "MGD" is an abbreviation for million gallons of water per day. As used
in this Contract, "MGD" refers to a quantity of water during a period of time expressed for
convenience in terms of an average daily quantity during a calendar month (unless a
different period of time is specified). The volume of two MGD for a calendar month, for
example, is calculated as follows: Two million gallons multiplied by the number of days in
such calendar month.
(7) The term "Point of Delivery" shall mean the location, in Texas coordinates, to which
Seller agrees to deliver Untreated Water to Buyer more particularly described in Exhibit "A"
attached hereto and incorporated herein for all purposes.
(8) The term "Point of Measurement" shall mean the location, in Texas coordinates, of
the meter at which Buyer's consumption of water is measured more particularly described
in Exhibit "A" attached hereto and incorporated herein for all purposes.
(9) The term "Surface Water Source" shall mean those water rights in reservoirs,
basins, and other facilities now owned or hereinafter acquired by Seller and shall be
modified by any water rights hereinafter acquired or deleted at the sole discretion of the
Seller.
(10) The term "Surface Water System" shall mean all facilities and Surface Water
Sources now owned or hereinafter acquired or constructed by Seller for the purpose of
supplying Untreated Water.
111) The term "Surface Water System Costs" shall mean all costs budgeted for
expenditure by Seller in Seller's annual budget as approved by Seller's governing body or
actually incurred by Seller in acquiring, constructing, financing, administrating, operating,
and maintaining the Surface Water System and a reasonable allowance for depreciation and
replacement of the Surface Water System.
(12) The term "TNRCC" shall mean the Texas Natural Resource Conservation
- Commission and its successor.
FAGD240MC0NICONTMCnEM10166 -3-
• ( 13) The term "Untreated Water" shall mean water supplied to Buyer from basins and
reservoirs, whatever the source, which has not been treated in any manner.
ARTICLE II.
Sale and Delivery of Water
2.1 Subject to the terms and conditions of this Contract, during the Contract Term Seller
hereby agrees to sell and deliver to Buyer and Buyer agrees to purchase from Seller Untreated
Water at the Point of Delivery shown in attached Exhibit "A" at daily rates of delivery as may be
needed by Buyer; provided, however, that under no circumstances shall the Seller be obligated to
deliver to Buyer Untreated Water in excess of the Contract Quantity of 11.9 MGD.
2.2 Buyer agrees to purchase at least 90% of its water requirements from Seller as
required under the Code of Ordinances. Any change to the location or existing connection facilities
must be approved both by Buyer and the Director.
2.3 Regardless of the Surface Water Source as defined by the Seller at any time,
Untreated Water may be delivered to Buyer from any source or combination of sources available
to the Seller.
2.4 Untreated Water delivered by Seller to Buyer shall be used only for municipal
purposes (as such term is defined by the TNRCC in its rules), and such Untreated Water shall be
used only within Buyer's service area shown on Exhibit "B."
2.5 If Buyer wishes to reserve for itself additional monthly quantities of Untreated
Water, Buyer must notify Seller in writing of Buyer's desire to do so. The Director may, at its
discretion after considering the Untreated Water requirements of the Seller and its obligations and
commitments, increase the quantity of Untreated Water supplied to Buyer; provided, however, that
Seller shall be under no obligation to deliver Untreated Water in excess of the Contract Quantity.
Seller may, at its discretion, discontinue delivery of such additional monthly requirements of
0 Untreated Water by giving Buyer 30 days written notice.
FAGD24MCOWCONTRAC REW610166 -4-
ARTICLE III.
Rates and Prices
3.1 (a) The charge for all Untreated Water sold and delivered by Seller to Buyer shall
be calculated in accordance with the rates for untreated water customers as set forth in Article
II, Division 2, entitled "Untreated Water," of Chapter 47 of the Code of Ordinances of the City of
Houston, as amended, and as such provisions may be amended in the future, incorporated by
reference as fully and completely as if copied herein in full.
(b) Billing at the rate for Untreated Water shall not commence until the Beginning Date
of service on or after the effective date of this Contract.
(c) Whenever Buyer's consumption shall exceed the Contract Quantity by 10 %, a 5%
surcharge shall be charged against that portion of the consumption that exceeds the Contract
Quantity. Provided, however, this surcharge shall not apply to any increase in the quantity of
Untreated Water granted by the Director under Section 2.5.
3.2 Additionally, Buyer understands and agrees that Seller may at any time by ordinance
duly enacted, increase or change the price or prices for Untreated Water as set forth in the Code
of Ordinances.
3.3 Buyer recognizes Seller owns and operates an extensive surface water system and
will continue to add capacity to such system by acquisition and construction of new facilities and
water rights and agrees that the cost of providing Untreated Water shall be recalculated
periodically by Seller, taking into account all Surface Water System Costs, regardless of the point
of delivery.
0
rAGD240MC0K%C0NTMCTIEWB10186 -5-
•
ARTICLE IV.
Reports
Within thirty days after the end of each quarterly period during the term of this Contract,
Buyer shall furnish Seller with a statement under oath showing the quantities and sources of all
water (1) used or sold by Buyer to its customers and (2) all Untreated Water received from Seller
during such quarterly period.
ARTICLE V.
Measuring Eguinment
5.1 All measuring equipment shall be owned by Seller, even when purchased by Buyer,
and shall be located at The Point of Measurement as shown on Exhibit "A ".
5.2 During all reasonable hours, Seller, Buyer and the Coastal Water Authority of Texas
shall have access to the measuring equipment. Buyer may have access to all records pertinent to
determining the measurement and quantity of Untreated Water actually delivered hereunder, but
the reading of the measuring equipment for purposes of billing shall be done by Seller.
5.3 Seller shall maintain the measuring equipment within the accuracy tolerance
specified in Section 5.4 by periodic tests. Seller shall conduct such tests at least once every
twelve 0 2) months and shall notify Buyer at least forty-eight (48) hours in advance of the time and
location at which tests are to be made. Seller agrees to properly test said measuring equipment
at Seller's cost when requested to do so by Buyer once every twelve (12) months. If Buyer
requests an additional test within twelve f 7 2) months, Seller shall charge Buyer an amount equal
to Seller's cost to perform such test unless the test reveals that the equipment registers one
hundred and two (1102%) percent or more for a given flow rate. In addition, Buyer shall have the
right to independently check, at its own cost, said measuring equipment at any time upon 48 hours
notification to the Director and opportunity for the Director to witness such tests.
FAGD2403TO HICONTRAMEWB101 BB -6-
• 5.4 Should the test of the measuring equipment in question show that the equipment
registers either more than one hundred two percent (102 %) or less than ninety -five percent (95 %)
of the water delivered for a given flow rate, the total quantity of Untreated Water delivered to
Buyer will be deemed to be the average daily consumption as measured by the measuring
equipment when in working order, and the meter shall be calibrated to the manufacturer's
specifications (in the case of Venturi meters) or the AWWA specifications (for all other types of
meters) for the given rate of flow, or replaced by Seller with accurate measuring equipment that
is tested before it is placed in service. This adjustment shall be for a period extending back to the
time when the inaccuracy began, if such time is ascertainable; and if such time is not
ascertainable, for a period extending back to the last test of the measuring equipment or one
hundred twenty 0 20) days, whichever is shorter.
As used in this paragraph, the expression "given rate of flow" means one of the following
selected by the Director for each calibration or test:
1) the total quantity of Untreated Water delivered during the preceding
period (usually a calendar month) as reflected by the totalizer, converted to gallons
per minute;
2) high, low, and intermediate rates of flow in the flow range, as
reflected by the flow recording devices;
3) the applicable Contract Quantity for the current period, usually a
calendar month, converted to gallons per minute; or
4) AWWA- specified test flow rates for that size and type of meter.
5.5 In the event of dispute between Seller and Buyer as to the accuracy of the testing
equipment used by the Seller to conduct the accuracy test, an independent check may be mutually
agreed upon between Buyer and Seller to be conducted by an independent measuring equipment
company suitable to both Buyer and the Director. The cost of such test will be at Buyer's sole
• - expense.
FAGD24031COH1CONTMMEW610166 -7-
• 5.6 Seller may install, at its own cost and expense, such check meters in Buyer's pipe
line or canal as may be deemed appropriate, but Seller shall have the right of ingress and egress
to such check meters during all reasonable hours; provided, however, that billing computations
shall be on the basis of the results of the measuring equipment set forth above.
ARTICLE VI.
Billing and Payment
6.1 As used in this Article VI, the term "day" shall mean a period of twenty -four
consecutive hours beginning at a mutually agreed -upon time on one calendar day and ending at
the same time on the next succeeding calendar day, and the term "month" shall mean a period
beginning at a mutually agreed -upon time on the first day of a calendar month and ending at the
same time on the first day on the next succeeding calendar month.
6.2 The measuring equipment shall be read on the day at the end of each month for at
such other period of frequency arranged between the parties) and at a mutually agreed upon time,
or as near thereto as practicable.
6.3 The quantity of Untreated Water for which payment is due by Buyer hereunder in
any month shall be the total quantity of Untreated Water delivered to Buyer in such month as
determined by the measuring equipment described in Article V hereof.
6.4 Seller shall bill Buyer at Buyer's address within ten days after the read date by a
statement showing the quantity of Untreated Water used during the preceding month. Payment
shall be due and payable to Seller at its offices in Houston, Harris County, Texas, on or before the
twentieth 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 per annum from the date when due until paid and Buyer shall be
deemed to be in default.
FAG024031COH%CONTRAC nEWB10166 -8-
• ARTICLE VII.
Title to and Responsibility for Water
7.1 As between Buyer and Seiler, Seller shall be in exclusive control and possession of,
and solely responsible for, all Untreated Water deliverable hereunder and solely responsible for any
damage or injury caused thereby until the same shall pass through the Point of Delivery and
thereafter, Buyer shall be in exclusive control and possession thereof and solely responsible for any
injury or damage caused thereby.
7.2 SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE
QUALITY OR DELIVERY PRESSURE OF UNTREATED WATER, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.3 With respect to all water handling facilities located between the Point of Delivery
and Point of Measurement, Buyer and Seller specifically agree:
1) that all such facilities, other than the measurement equipment itself, shall be and
remain the property of Buyer, subject to the terms of this Contract;
2) that Buyer shall take all reasonable steps to maintain such facilities and to prevent
leaks or discharges from such facilities;
3) that Buyer shall repair any such leak or discharge at once upon receiving notice
thereof and pay Seiler the price of any water lost by reason of such a leak or
discharge;
4) that Buyer shall correct or repair any damage caused by any such leak or discharge
and shall hold Seller harmless from and against any such damage and claims
therefore;
5) that Buyer shall alter or relocate, at its sole cost, any such facilities whenever Seller
shall reasonably request in writing that the same be done; and
•
FAGD240MCOWCONTMC REWS10166 -9-
• 6) that Buyer shall promptly remove such facilities and restore their locations to their
pre- existing conditions whenever this Contract is no longer in effect and the Seller
so requests.
ARTICLE VIII.
Term
This Contract shall be in force and effect beginning on the date of countersignature shown
below until December 31, 2020 at 8:00 a.m.
ARTICLE IX.
Performance by Seller and Buyer
9.1 Seller covenants and agrees that it will not contract for the sale of Untreated Water
to other users to such an extent or for such quantities as to impair Seller's ability to perform fully
and punctually its obligations to Buyer under this Contract. In case of temporary shortage of
water, notwithstanding Seller's compliance with the provisions of this Article IX, Seller shall
distribute the available supply as provided by the laws of the State of Texas, particularly Section
11.039 (a) of the Texas Water Code, as amended.
9.2 Pursuant to the Amendatory Contract entered by Seller and the San Jacinto River
Authority, a copy of which is attached hereto as Exhibit "C" and incorporated herein for all
purposes, and notwithstanding any other provision of this Contract to the contrary, Buyer
covenants and agrees that it takes the Untreated Water under this Contract from Seller for the
limited purpose of treating and selling the same as potable treated water to the City of Baytown
and other local governmental entities; such water to be used for municipal purposes (as such term
is defined by TNRCC Rules) and for no other purposes, and such treated Water shall be sold,
distributed or used only for residential household and other strictly municipal purposes within the
area shown in Exhibit "B." No extension of these boundaries may be made by Buyer without the
written consent of the San Jacinto River Authority and Seller. Buyer agrees to include covenants
similar to those contained in this Section 9.2 in any sales or contracts for sale of water by Buyer
FAGD24031COWCONTRAC REM10166 _10-
• to any other entity. Buyer agrees to submit the wording of such covenants for the written
approval of Seller prior to entering into such contracts.
9.3 Buyer understands and agrees that either Seller or the San Jacinto River Authority,
or both, may enforce the covenants contained in Section 9.2 herein by an action brought directly
against Buyer. In the event that Seller maintains any legal proceeding to enforce such covenants,
Buyer agrees to indemnify Seiler in the amount of all expenses relating to the legal proceeding,
including, but not limited to, costs of court and reasonable attorney's fees.
9.4 Buyer acknowledges that Seller may be liable to the San Jacinto River Authority for
monetary damages in the event that Buyer (or any purchaser of water from or through Buyerl fails
to comply with the restrictions and limitations on the sale of water set out in Section 9.2 herein.
Buyer acknowledges that such monetary damages would amount to seventy -five percent (75 %)
of the consideration or revenue received by Seller for the estimated amount of water 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 fully 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 and 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 Seller prior to entering into
such contracts.
9.5 Buyer agrees to maintain, at its sole expense, its water wells, if any, in good repair
and working order to facilitate the use of such water wells as an emergency source of supply, if
required, should Seller be unable to deliver the Contract Quantity of Untreated Water for any
reason. Buyer shall bear all costs of maintaining and supplying such emergency sources of supply.
FAGD240MCOH1CONTMCREWB10166 _11-
• ARTICLE X.
Environmental Considerations
10.1 On or before the first anniversary of the effective date of this Contract, Buyer shall
approve and implement and throughout the term hereof remain in full compliance with a water
conservation program in accordance with requirements of the TNRCC. Such plan (and any
amendments thereto) shall be submitted to the appropriate authority as required by state law for
review and approval. In the event that the TNRCC adopts new requirements, Buyer shall adopt
an amended plan and submit same to the appropriate authority for review and approval.
10.2 Buyer agrees that in the event that Buyer furnishes or sells water or water services
to a third party that in turn will furnish water to the ultimate consumer, the requirements of this
Contract relative to water conservation shall be met through contractual agreements between the
Buyer and the third party, providing for the implementation and continued compliance with a water
conservation program consistent with the requirements of the TNRCC.
ARTICLE XI.
Remedies Upon Default
11.1 In the event of any default by Buyer in the performance of any of Buyer's obligations
hereunder which shall continue for a period of thirty days or more, the Seller shall give written
notice to Buyer specifying the matter with respect to which Buyer is in default and requesting that
the default be remedied with promptness and dispatch. In the event Buyer, within forty -five days
after the mailing of such notice by Seller, has failed to remedy the matter in default, Seller may
suspend further delivery of Untreated Water to Buyer hereunder; and in the event such default on
the part of Buyer continues for an additional thirty days, Seller may, by an additional written notice
to Buyer, cancel and terminate this Contract, whereupon all rights of Buyer and all obligations of
Seller hereunder shall terminate and be at an end. The exercise of such rights shall be in addition
ito any other remedies available to Seller under the laws of the State of Texas.
FAGD24031COMCONTRAMEW810166 .12-
11.2 The failure of either party 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 term, covenant or condition by the other
party hereto, but the obligation of such party with respect to future performance shall continue in
full force and effect.
ARTICLE XII.
Force Maieure
12.1 In the event either party is rendered unable, wholly or in part, by force majeure, to
carry out any of its obligations under this Contract, or in the event Buyer is rendered unable,
wholly or in part, by force majeure to operate Buyer's Facilities, it is agreed that on such party's
giving notice and full particulars of such force majeure in writing or by telefax or telegraph to the
other party as soon as possible after occurrence of the cause relied upon, then the obligations of
the party giving such notice, to the extent it is affected by force majeure and to the extent,that
due diligence is being used to resume performance at the earliest practicable time, shall be
suspended during the continuance of any inability so caused as to the extent provided, but for no
longer period. Such cause shall as far as possible be remedied with all reasonable dispatch.
12.2 The term "force majeure ", as used herein, shall include, but not be limited to, acts
of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, war, blockades,
insurrections, riots, epidemics, landslides, 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 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.
12.3 It is understood and agreed that the settlement of strikes or lockouts shall be
• entirely within the discretion of the party having the difficulty and the above requirement that any
FAGD24031COH1CONTMCMVV5101 Be -13-
• force majeure be remedied with all reasonable dispatch shall not require the settlement of strikes
or lockouts by acceding to the demands of the opposing party when such course is inadvisable in
the discretion of the party having the difficulty.
12.4 It is understood and agreed that Seller receives its supply of water from others, and
such water must be transported over long distances before it is received by Seller. Accordingly,
it is agreed that stoppage or diminution of the water received by the Seller from one or more of
its Surface Water Sources (other than by reason of the Seller's failure to make payments due to
its suppliers) shall be deemed a force majeure, and that the Seller cannot and does not guarantee
constant availability of water hereunder but does agree to use its best efforts to maintain such
availability. It is further agreed that the Seller may, without liability or default, interrupt its service
hereunder to make necessary alterations to or repairs in its facilities, but only if such interruption
cannot otherwise reasonably be avoided. The Seller shall give reasonable prior notice of any such
interruption to Buyer and, to the extent possible, the Seller shall schedule interruptions in advance
after consultation with Buyer.
ARTICLE XIII.
Addresses and Notices
13.1 Until Buyer is otherwise notified in writing by Seller, the address of Seller is and
shall remain as follows:
City of Houston Utility Customer Service Division
Contract Water Accounting Section
P. O. Box 1560
Houston, Texas 77251
Until Seller is otherwise notified in writing by Buyer, the address of Buyer is and shall remain as
follows:
•
Baytown Area Water Authority
P.O. Box 424
Baytown, Texas 77522 -0424
FAGD24031C0H1C0NTMCTIEWB10166 -14-
• 13.2 All written notices required or permitted to be given under this Contract from one
party to the other shall be deemed given by telefax or the deposit of certified or registered mail in
a United States Postal Service mail box or receptacle, with proper postage affixed thereto and
addressed to the respective other party at the address set forth above or at such other address as
the parties respectively shall designate by written notice.
ARTICLE XIV.
Miscellaneous Provisions
14.1 This Contract shall bind and benefit the respective parties and their legal successors,
but shall not otherwise be assignable, in whole or in part, by either party without first obtaining
the written consent of the other; provided, however, that Buyer shall have the right, without any
consent of Seller, to pledge or otherwise assign Buyer's rights hereunder to the extent required by
any mortgage, deed of trust or other similar agreement to which Buyer may now be, or hereafter
become, a party or to otherwise assign Buyer's rights and obligations hereunder in connection with
any merger or consolidation or any sale of 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 law or otherwise) expressly assume Buyer's obligations hereunder; and provided, further,
however, that no successor or assignee of Buyer shall be entitled to receive Untreated Water or
sell such Untreated Water to a third party under this Contract unless and until the San Jacinto
River Authority gives its written consent to such assignment.
14.2 This Contract shall be for the sole and exclusive benefit of Buyer and Seller and shall
not be construed to confer any rights upon any third party. Seller shall never be subject to any
liability in damages to any customer of Buyer for any failure to perform under this Contract.
14.3 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.
FAGD24031COMCONTRACTIEWB70166 -15-
• 14.4 This instrument contains all the agreements made between the parties concerning
the sale and delivery of Untreated Water by the Seller to the Buyer at the Point of Delivery set out
in this Contract.
14.5 With respect to any prior agreements between the parties or their predecessors for
the sale of Untreated Water to Buyer at any Point of Delivery hereunder, the future obligations of
both parties to perform under any such prior agreement are terminated effective as of the effective
date hereof, except as follows:
Any obligations which arise prior to such effective date, including
specifically the obligations of Buyer to pay money to Seller for time
periods or deliveries prior to such effective date, are not terminated.
F:IGO24031COH1CONT"CnEW810166 -16-
• IN WITNESS WHEREOF, the parties hereto to have signed 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, as of the date of countersignature.
ATTEST:
City Secretary
ATTEST:
By:
Title: Secretary
APPROVED AS TO FORM:
Sr. Assistant City Attorney
APPROVED:
Director, Department of
Public Works & Engineering
•
CITY OF HOUSTON, TEXAS
(Seller)
Mayor
BAYTOWN AREA WATER AUTHORITY
BAYTOWN, HARRIS COUNTY, TEXAS
(Buyer)
By:
Title: President
COUNTERSIGNED BY:
City Controller
DATE OF COUNTERSIGNATURE:
F:%G024=C0HIC0NMMEWBt0186 -17-
. APPROVED AS TO CONFORMITY WITH PARAGRAPH 2 OF THE CONTRACT
BETWEEN THE CITY OF HOUSTON AND THE SAN JACINTO RIVER
AUTHORITY DATED JUNE 22, 1976:
SAN JACINTO RIVER AUTHORITY
By:
General Manager
Date:
i
FAGD24031C0HIC0NMCnEM10166 - g-
•
THE STATE OF TEXAS §
COUNTY OF HARRIS
BUYER'S ACKNOWLEDGMENT
This instrument was acknowledged before me on
(date)
is
by
(name)
of Baytown Area Water Authority.
Notary Public in and for the
State of Texas
Commission Expires:
FAGD240MCOWCONMACrEM10166 -19-
C�
10
WATER SUPPLY CONTRACT
CITY OF HOUSTON
BAYTOWN AREA WATER AUTHORITY
TABLE OF CONTENTS
ARTICLE 1. Definitions .............. ............................... 2
ARTICLE II. Sale and Delivery of Water ... ............................... 4
ARTICLE III. Rates and Prices .......... ............................... 5
ARTICLE IV. Reports ................ ............................... 5
ARTICLE V. Measuring Equipment ...... ............................... 6
ARTICLE VI. Billing and Payment ........ ............................... 7
ARTICLE VII. Title to and Responsibility for Water ............................ 8
ARTICLE VIII. Term .................. ............................... 9
ARTICLE IX. Performance by Seller and Buyer .............................. 9
ARTICLE X. Environmental Considerations ............................... 11
ARTICLE XI. Remedies Upon Default .... ............................... 12
ARTICLE XII. Force Majeure ........... ............................... 12
ARTICLE XIII. Addresses and Notices ..... ............................... 14
ARTICLE XIV. Miscellaneous Provisions ... ............................... 14
FAGD240=0HICONTRAMEW 610186
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EXHIBIT "A"
Point of delivery to the Baytown Area Water Authority:
Approximate Texas coordinates:
North East x= 3,258,560 y =738, 120
South East x= 3,258,560 y= 735,840
South West x= 3,255,730 y= 735,890
0
AMENDATORY CONTRACT BETWEEN
SAN JACINTO RIVER AUTHORITY
AND
THE CITY OF HOUSTON, TEXAS
THE STATE OF TEXAS X
X
COUNTY OF HARRIS
THIS CONTRACT executed as of the_?�n/ day of
1976, by and between the SAN JACINTO RIVER AUTHORITY, ( "SJRA ") a
conservation and reclamation district and political subdivision
of the State of Texas, and the CITY OF HOUSTON, TEXAS, ( "the City ")
a municipal corporation:
1.
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 Baytown Area Water
Authority ( "BAWA "), a municipal corporation created by Ch. 600,
p. 641, Sixty -Third legislature, Regular Session, 1973, for the
limited purpose of treating and selling the same as potable treated
water to the City of Baytown and other local governmental entities
for distribution through the municipal water systems of such local
governmental entities, such water to be used 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 BAWA as such boundaries
exist on the date of this contract; PROVIDED, that no such water
shall be sold, distributed or used other than for residential
household and other strictly domestic purposes within the area
bounded by Interstate Highway No. 10 on the north, Sjolander Road
on the west, Archer Road on the south, and Cedar Bayou on the east,
without written consent of SJRA.
2.
• The City shall insure that all instruments relating
to the sale of water to BAWA include appropriate covenants on
•
the part of BAWA to observe the limitations and restrictions
imposed on the City by the contract dated March 27, 1944, as
modified by this contract, and to include covenants in all
sales and contracts for the sale of water by BAWA insuring
compliance with such restrictions and limitations. The word-
ing of the covenants giving effect to such restrictions and
limitations shall be submitted to the General Manager of the
SJRA for approval as to conformity to this paragraph prior to
any sale by the City subject to this contract. The City shall
be responsible for the enforcement of such covenants, but the}
shall also be enforceable by SJRA directly.
3.
In the event any water delivered by the City to BAWA
under this contract is used in violation of such restrictions
or limitations, SJRA shall be entitled to recover from the
City as liquidated damages an amount equal to seventy -five
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 attorney's fees. The recovery
of such liquidated damages shall be in addition to all other
remedies available to SJRA.
4.
In consideration of the foregoing limited waiver by
SJRA of the restrictions and limitations imposed by the
contract dated March 27, 1944, the City shall pay to the SJRA
an amount equal to $50 per day during such period that the
City receives payment from BAWA for water sold under this
waiver, but such payments to SJRA shall not extend beyond a
period of 20 years. Payment shall be made on a quarterly bas:
• on or before the 10th day of the month following each calendar
quarter.
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0
•
a
The contract shall not be assignable by either party
without the written consent of the other; however the obligation
imposed hereunder shall be binding on their successors or assign
The waiver provided herein shall be applicable only to sales by
the City to BAWA and shall not be applicable to any sale by
the City to any other entity, including any successors or assign+
entity to BAWA, without the written consent of SJRA.
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 March
27, 1944, contract shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto, acting under the
authority of their respective governing bodies have caused this
contract to be executed on this y day of 197
in duplicate originals, each of which shall constitute an origina
SAN JACINTO RIVER AUTHORITY
ATTEST:
BY
By_ ice -Pre nt
y � ��
Secretary
CITY OF HOUSTON
ATTEST: By
.a r
By
City Secretary
COUNTERSIGNED:
ity Contro er
I'` -3-