Ordinance No. 7,623960208-3
ORDINANCE NO. 7623
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AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR TO
EXECUTE AND THE CITY CLERK TO ATTEST TO A WHOLESALE WATER
SUPPLY AND WASTEWATER DISPOSAL CONTRACT WITH CHAMBERS
COUNTY MUNICIPAL' UTILITY DISTRICT NO. 1; AND'PROVIDING FOR
THE EFFECTIVE DATE THEREOF.
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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 authorizes and directs
the Mayor and City Clerk of the City of Baytown to execute and attest to a Wholesale Water Supply
and Wastewater Disposal Contract with Chambers County Municipal Utility District No. 1. 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 8th day of February, 1996.
ATTEST:
EILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, S ., City Attorney
c:\council\meetings\february\mud 1.8th
PETE C. ALFARLr
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WATER SUPPLY AND WASTE DISPOSAL AGREEMENT
BETWEEN
THE CITY OF BAYTOWN, TEXAS
AND
CHAMBERS COUNTY MUNICIPAL UTILITY DISTRICT NO. 1
This Agreement 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 located
in Harris County, Texas (the "City"), and Chambers County Municipal Utility District No. 1,
Chambers County, Texas a body politic and corporate and a political subdivision of the State of
Texas organized under the provisions of Article XVI, Section 59 of the Texas Constitution and
Chapters 49 and 54, Texas Water Code (the "District").
1. The City is a municipal corporation and home -rule city principally located in Harris
County, Texas. The City owns, operates and maintains a water supply and distribution system
supplying water to residents of the City, and a waste collection, treatment and disposal of waste plant
and related equipment and facilities for the gathering, treatment and disposal of waste.
2. The District is a conservation and reclamation district organized and existing under
Article XVI, Section 59 of the Constitution of the State of Texas, created by an Order of the Texas
Water Commission, and operating pursuant to Chapters 49 and 54, Texas Water Code, as amended.
3. The District will own or lease a water distribution system and a waste collection
system serving the Service Area and desires to purchase treated water for the Service Area and to
purchase treatment and disposal of waste generated within the Service Area.
4. The District is empowered to supply water for municipal uses, domestic uses, power
and commercial purposes and all other beneficial uses or controls; and to collect, transport, process,
dispose of, and control all domestic industrial or commercial waste whether in fluid, solid or
composite state.
5. The District is authorized to purchase, construct, acquire, own, maintain, repair or
improve or extend inside and outside its boundaries any and all works, improvements, facilities and
plants, necessary and incidental to the supply of water and 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 Chapter 42 of the Texas Local Government Code as amended. The parties
acknowledge the possibility that the City may annex the Service Area during the term of this
agreement. 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 Agreement by
the Constitution and the laws of the State of Texas, including without limitation Texas Local
Water SUDDIY and Waste Disposal Agreement, Pagel
EXHIBIT A
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Government Code Section 402.001 and Texas Water Code Section 49.213, as same may be from
time to time amended.
NOW THEREFORE, for and in consideration of the premises and the mutual covenants and
agreements herein contained the parties hereto do mutually agree as follows:
AGREEMENT
ARTICLE I
DEFINITIONS
The terms and expressions used in this Agreement, unless the context clearly shows otherwise, and
in addition to other defined terms herein, have the following meanings:
1.01 "City's System" shall mean the systems for the supply and distribution of water and
for the collection, transportation and treatment of waste and any extensions thereof and 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 systems for the distribution of water and 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
and distribution of water from the point of interconnection with the City's System throughout the
District's System, and the transportation of waste from dwellings and buildings connected to the
District's System 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 sanitary sewer system.
1.06 "Interconnections" shall mean those improvements necessary for the connection of
the City's System and District's System along State Highway 146 as set forth herein.
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1.07 "Prohibited Waste" shall be those discharges prescribed by the City of Baytown's
Industrial Waste Ordinance as set forth in Article II of Chapter 34 of the Code of Ordinances of the
City of Baytown, a copy of which is attached hereto as Exhibit "B" and for all purposes made a part
of this Agreement. All future amendments to the City's Industrial Waste Ordinance shall apply to
this agreement when such amendments are adopted.
1.08 "Service Area" shall mean the area within the boundaries of the District and within
Sections 1 and 2 of Country Meadows Subdivision, consisting of a total of 25.0224 acres and 100
single-family connections. The District covenants that the Service Area is now and shall always be
within the area as more particularly described in Exhibit "D," which is attached hereto and
incorporated herein for all intents and purposes.
1.09 "Sewage" shall mean the liquid and water -carried domestic waste discharged for
sanitary conveniences of dwellings and buildings connected to a sanitary sewer collection system,
excluding industrial wastewater discharged 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 250
mg/l.
1.10 "TNRCC" shall mean the Texas Natural Resource Conservation Commission or its
successor.
1.11 "Treatment Plant" or "Plant" shall mean the City's West District Treatment Plant and
Central District Treatment Plant including all additions or modifications thereto which may occur
subsequent to the execution of this Agreement.
1.12 "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.
1.13 "Water" shall mean potable water meeting the minimum drinking water standards
prescribed by Texas Department of Health Resources and Texas Natural Resource Conservation
Commission, and their successor agencies.
ARTICLE II
CONSTRUCTION OF IMPROVEMENTS BY DISTRICT
2.01 District's System. The District shall acquire or construct, or cause to be acquired
or constructed the District's System. No cost of the District's acquisition or construction of the
District's System, including engineering fees, the acquisition of any lands or easements in
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connection therewith, and obtaining the approval of any regulatory agency shall be borne by the
City.
2.02 City Approval of Plans and Specifications. Prior to the initiation of any construction
of the District's System, the engineers of the District shall submit to the Director for written approval
the plans and specifications for the District's System. No construction of the District's System shall
begin until such plans and specifications are approved in writing by the Director. The District's
Engineer will provide the City, upon completion of the construction, with one set of "as built"
drawings, which meet the approval of the Director and certification that the District's System was
built in accordance with the City's standard plans and specifications and as indicated in the "as built"
drawings. The District will likewise obtain approval for and supply the City with "as built"
drawings and similar certification for any subsequent alterations or modifications made to the
District's System during the term of this Agreement.
2.03 jnspection. The District specifically grants the City the right to inspect at any time
any and all construction of the District's System in order to determine whether such construction is
in conformance with the City's standards and the approved plans and specifications. Should all or
any portion of the District's System, whether detected during construction or after completion
thereof, 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.
Failure to adequately and timely remedy the District's System shall be construed as an Event of
Default for which no additional opportunity to cure shall be given.
2.04 Points of Connection. The points of connection between the City's System and the
District's System shall be approved by the Director and shall not be changed without prior written
approval of the Director.
2.05 Completion of Construction. Upon completion of the construction provided for in
Section 2.01, both the City and the District agree as follows: (i) the City shall deliver to the District
and the District shall accept from the City water in quantities as specified in Article IV herein, and
(ii) the City shall receive from the District and the District shall discharge such volumes of waste
at such times and in such quantities as provided in Article IV of this Contract, for the price and at
the point or points of delivery herein provided, consistent with other limitations as stated herein.
2.06 Commencement of Use of Interconnections. The Interconnections shall be placed
into operation only upon the inspection and approval of the Interconnections and the District's
System by the engineers of the City and the District. Furthermore, the City reserves the right to
reject any Interconnection designated by the District which would, in effect, interfere with or
increase the cost of any other facilities or operations which the City might wish to construct or
implement, or plan to construct or implement, or which would adversely affect the City's ability to
provide water and/or sewer services to any of its customers.
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2.07 Meters.
(a) Water Measuring Equipment. The District will, at its sole cost and expense,
furnish and install or contract with the City to furnish and install at any and all
interconnections all measuring equipment as may be required by the City, including, but not
limited to, meters, totalizers and devises of standard type for measuring and recording
accurately the quantity of water delivered within an accuracy tolerance of two percent (2%)
plus or minus for a given rate of flow. It is expressly understood and agreed by the parties
hereto that a master meter, measuring total flow through the Interconnection having a
accuracy tolerance of two percent plus or minus for a given rate of flow, is required and must
be approved, installed and inspected by the City prior to the City being obligated under this
Agreement to deliver any water to the District. The District shall also install, operate and
maintain or contract with the City to install, operate and maintain, as required by the City,
pressure regulating devices and equipment. Such measuring equipment shall be approved
by the City; and after the City's approval of the installation, the same shall become the
property of the City.
(1) Inspection. During all reasonable hours, the City and the District shall
have access to such measuring equipment so installed. The City shall have access
to all records pertinent to determining the measurement and quantity of treated water
actually delivered hereunder, but the reading of the meters for purposes of billing
shall be done by the District.
(2) Calibration. After approved installation thereof, the City shall perform, at
its own cost and expense, periodic calibration tests on the primary measuring
equipment so installed in order to maintain the accuracy tolerance within the
guarantees of the manufacturer thereof, not to exceed tolerance of two percent (2%),
at least once every twelve (12) months. At reasonable intervals, The City agrees to
properly check and calibrate the flow recording the totalizing measuring equipment
for the purpose of ascertaining its condition of accuracy. The City agrees to notify
the District at least forty-eight (48) hours in advance of the time any test is to be
made, to permit the District to observe such test and to furnish the District with a
copy of the results of all checks and calibration tests performed on said measuring
equipment. If any tests or calibration checks show a condition of inaccuracy,
adjustments shall be made immediately so said measuring equipment will register
correctly within the aforesaid accuracy tolerance addition, the District shall have the
right to independently check said measuring equipment at any time upon at least
forty-eight (48) hours' notification to the Director.
(3) Check Meters. The City may install, at its own cost and expense, such
check meters in the District's pipeline as may be deemed appropriate and the District
shall have the right of ingress and egress to such check meters during all reasonable
hours; provided, however that the billing computation shall be on the basis of the
results of the measuring equipment set forth in Section 2.07(a) hereinabove.
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(4) Inaccuracy Adjustments. If, upon any test, the percentage of inaccuracy
of any measuring equipment is found to be in excess of five percent (5%) for the
aforesaid given rate of flow, then the District's account shall be adjusted for a period
extending back to the time when such inaccuracy began, if such time is ascertainable,
and if such time is not ascertainable, for a period extending back on -half (%) of the
time elapsed since the date of the last test, or, the date of the last adjustment to
correct the registration, whichever is later, but not to exceed one hundred twenty
(120) days. If, for any reason, the measuring equipment is out of service or out of
repair and the amount of treated water delivered cannot be ascertained or computed
from the reading thereof, water delivered during the period shall be estimated and •
agreed upon by the parties hereto on the basis of the best data available.
(5) Independent Check of Metering Equipment, In the event of a dispute between
the District and the City as to the accuracy of the testing equipment used by the City
to conduct the test of accuracy upon the meters being used, an independent check
may be mutually agreed upon between the District and the City to be conducted by
an independent measuring equipment company suitable to both the District and the
City, the cost of such test to be at the District's sole expense.
(6) "Given Rate of Flow." As used in this Article, the expression "given
rate of flow" means the total quantities of treated water delivered during the
preceding period (usually a calendar month) as reflected by the recording devices,
divided by the number of days in the period.
(b) Waste Flow Devices. 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 accurately recording total flow on a daily
basis for at least a week's time, including peak daily flows. The District shall maintain this
device in good operating condition at all times and calibrate the same 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 (15%) or more of the actual wastes being discharged, then the
District shall bear the cost of inspection and recalibration. The District shall within ten (10)
days after request of the Director render any and all repairs or replace said device if
necessary to provide accurate readings. The District covenants and agrees to render monthly
reporting to the City of the readings made from such meter(s). Said readings shall be made
on the first regular business day following the first day of each month.
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ARTICLE III
OWNERSHIP, OPERATION AND MAINTENANCE OF SYSTEMS
3.01 District's System. The District shall own, operate and maintain at its sole cost and
expense, the District's System and will promptly repair any of its facilities so as to prevent leakage
or infiltration. However, should the District fail to operate and 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 as determined at the sole discretion
of the City then such failure shall be considered an Event of Default.
3.02 City's Plumbing Code, The District covenants and agrees to comply with the
City's current Plumbing Code and all amendments thereto for water distribution and sanitary sewer
facilities and agrees not to permit plumbing work relating to water or sewer service or allow
connection to the District's 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 shall, after
such inspection and approval and prior to service to the facility, submit to the City an affidavit of
inspection certifying that the all requirements of the City's Plumbing Code have been satisfied.
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 or in lieu of the District's
operator, and the District will enforce any notice issued by such inspectors. If any such notices are
not complied with, the District shall discontinue service when this may be legally done pursuant to
the District's Rate Order upon the request of the City to do so. A copy of such rate order is attached
hereto as Exhibit "E" and incorporated herein for all intents and purposes. Failure of the City to act
on behalf or in lieu of the District shall not be held construed as a waiver of the right to so act in the
future or to exercise any right or remedy occurring as a result of the District's default.
Should the District for any reason fail to enforce the standards established by the City
Plumbing Code for water or sewer facilities or should the District fail to comply with the foregoing
provisions of this section, such failure shall be an Event of Default.
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 than its own employees or a sewage plant operator holding a valid certificate of competency
issued under the direction of the Texas Natural Resource Conservation Commission as required by
Texas Water Code Section 26.0301, as amended, or any other permit or certificate required by law,
then any such proposed service arrangement, by written contract or otherwise, must be approved in
writing by the Director, whose consent shall not be unreasonably withheld, prior to execution by the
parties. Failure of the District to submit any such proposed service agreement to the District prior
to its execution shall be considered an Event of Default. Any outside service agreement, whether
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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 the discharge of Industrial Waste
from within its boundaries into its waste 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 Ordinances or as required
by any regulatory agency. No such discharge will be permitted without prior written approval of the
Director. The applicant industry and the District shall file a statement with the City containing the
following information:
(1) Name and address of applicant;
Type of Industry;
Quantity of waste;
Typical laboratory analysis of the waste;
Type of pretreatment proposed;
and such other information as the Industrial Waste Ordinance of the City may from time to time
require. District shall permit no industrial waste connection 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 to its
System within the City's corporate limits in accordance with the City's ordinances and rules and
regulations promulgated pursuant thereto and in effect at the time each application is received,
including compliance with all the requirements of the City's Industrial Waste Ordinance, a copy of
which is attached hereto as Exhibit "B," and for all purposes made a part of this Agreement
including all future amendments to said ordinance; provided, however, the City shall not under any
conditions be required to accept "Prohibited Waste."
'The 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 Sewer
Rate Ordinance and Industrial Waste Ordinance. In addition, the District agrees that all such activity
will comply with all requirements for connection to the City's System, including acquiring
appropriate District Industrial Wastewater Discharge Permits. As a condition of connection to the
System, all industries located within the District shall agree in writing (1) to contribute to any
Industrial Cost Recovery Program imposed upon similar industries within the City and (2) to provide
to the Director on a biannual basis the results of a full and complete analysis of its effluent for those
parameters stated in the City's Industrial Waste Ordinance, including as a minimum BOD, TSS,
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COD, oil and grease, and heavy metals, such analysis to be performed by an independent testing
laboratory approved by the Director.
3.06 Waste to Comply with City Ordinance. 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 to the satisfaction of the City shall be considered an Event of Default.
3.07 Seepage and Infiltration. The District agrees that it will adopt and enforce written
rules, regulations, and provisions to ensure that connections to the System will be such as to prevent
as much as feasibly possible the discharge into said System of anything except sewage; and in
particular, but without limitation thereto, that no drains shall be installed or connected in such a
manner that any rainwater or other surface waters are permitted to enter the District's System; and,
in addition, that adequate safeguards will be taken to prevent any abnormal seepage or infiltration
or discharge of any solid matter into said System. Within ninety (90) days following the date of
execution of this Contract by the City, the District shall supply the Director with a copy of such
rules, regulations, and contracts, including statement of measures designed to enforce such provision.
The District shall initiate whatever lawful actions are necessary to disconnect any customer who,
following reasonable notice, refuses to remove noncompliant connections. The District will inspect
all connections at the time made and continue to monitor the District's System as a whole to detect
infiltration and unpermitted connections at least one (1) time per month or as otherwise may be
ordered by the Director. The District further agrees to continuously maintain the District 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 Article V herein for such excess infiltration. It is further agreed that the
City's inspectors shall have the right to make such inspections as are necessary to ensure 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 Grant Programs: Contribution to Costs. The
District recognizes that the City is presently participating in a federally -funded grant program for
the construction of sewage 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, certain responsibilities may be
imposed upon the City with respect to compliance with state and/or federal rules and regulations
regarding contributors to the City's System. The District recognizes that by virtue of this Agreement
it is a contributor to the City's System and, as a contributor shall be required to take all necessary
steps to enable the City to continue to comply with such programs and to bear the District's pro rata
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share of the expense of such compliance. More specifically, the District authorizes the City and its
representatives to enter District property and to conduct those tests, including, but not limited to,
infiltration/inflow analyses, smoke tests, and/or other similar analyses as required under the
provisions of the Federal Water Pollution Control Act and the City's Federal Grant Agreements to
characterize the condition of the District's System. The District agrees to pay costs of such analyses
of its System not refunded by the state or federal government to the City, within thirty (30) days of
receipt of an invoice for the same. In addition, the District agrees to pay within thirty (30) days of
receipt of an invoice the unrefunded costs of any remedial measures necessary to improve the
District's System in order to comply with state or federal requirements and agrees to see that such
remedial measures are timely taken. Such steps are not exclusive, and the 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 Delivery of and Title to Waste. Title to all waste to be treated hereunder shall
remain in a particular party so long as such waste remains on such party's side of the
Interconnection. Upon passing through the Interconnection, title thereto shall pass to the other party;
however, the City shall be under no responsibility to accept those waste materials which do not
conform with the quality or quantity standards as otherwise specified herein including "Prohibited
Waste."
3.10 Title to and Responsibility for Water. Title to, possession, and control of water
shall remain in the City, or its assigns, to the point of delivery where title to possession, and control
of water delivered under this contract shall pass from the City to the District; and the District will
take such title, possession and control at such point of delivery. As between the parties hereto, the
City shall be in exclusive control and possession of the water deliverable hereunder and solely
responsible for any damage or injury caused thereby until the same shall have been delivered to the
District at such point of delivery, after which delivery the District shall be in exclusive control and
possession thereof and solely responsible from any injury or damage caused thereby, and such party
respectively shall save and hold the other party harmless from all claims demands, and cause of
action which may arise while said water is under its respective ownership and control. The City
shall not be responsible in damages for any failure to supply water or for interruption of the water
furnished hereunder. The District agrees to save harmless the District from all damage to real and
personal property occasioned or caused by the making of the water connection or connections herein
referred to or caused by the furnishing of water hereunder, and shall also save and keep harmless the
City from all damage of any kind, nature and description which may arise as the result of the making
of this Agreement.
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ARTICLE IV
QUANTITY AND CAPACITY
4.01 General.
(a) Water. Subject to the terms and conditions of this contract, City agrees to sell
and deliver (or cause to be delivered) to the District, the District's water requirements of
treated water, and the District agrees to purchase from City, the District's treated water
requirements for resale during the term of this contract for water services to be supplied in
Sections 1 and 2 of Country Meadows Subdivision, which consists of a'total of 25.0224
acres. The District's total treated water requirements shall mean the total quantity of treated
water the District needs to conduct operations, use or resell within the 25.0224 acres.
(b) Waste. In consideration of the compensation stated herein, the City shall
accept and treat waste from the District and the District shall have the privilege of
discharging waste into the City's System, not to exceed 35,000 gallons per day average daily
flow (representing 100 anticipated single-family connections within Sections 1 and 2 of
Country Meadows Subdivision).
4.02 Capacity Reserved. The City covenants and agrees that upon receipt of Capital
Buy -In Fees as provided for in Section 5.01 of this Agreement, the City shall reserve for the
exclusive use and benefit of the District, the capacity in its water supply facilities and in its treatment
plant sufficient to supply and treat the quantities set forth in Section 4.01 of this Agreement.
However, the District shall not be guaranteed any specific quantity or pressure of water for the
services to be provided herein by the City if the City's water supply is limited or when the District's
equipment may become inoperative due to unforeseen breakdown or scheduled maintenance and
repairs, and the City is in no case to be held to any liability for failure to furnish any specific amount
or pressure of water. The City agrees that it will attempt to make any necessary repairs or
adjustments to its equipment within reasonable times mutually agreeable to both parties.
4.03 Additional Capacity. Should the District's needs, for whatever reason (including
infiltration), exceed the quantities set forth in Section 4.01 of this agreement, based on flow data or
readings pursuant to Section 2.07 hereof for total throughput, the District agrees to pay additional
Capital Buy -In Fees for the additional capacity needed by the District, which additional capital Buy -
In Fees shall be calculated on a per single-family lot basis using the rates provided in Section 5.01
of this Agreement.
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 prior written consent of the City. Failure to comply with this provision shall
constitute an Event of Default.
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ARTICLE V
PAYMENT AND TERMS
5.01 Capital Buy -In Fees. As a contribution to the capital investment of the City and in
consideration for connection to the City's System, the District shall pay to the City Capital Buy -In
Fees equal to $525.00 for sewer services and $402.50 for water supply services, each on the basis
of a per single-family residential lot basis to be paid in five -lot increments as needed prior to making
individual service connections.
5.02 Connection Fees, To defray the costs of making individual service connections,
the District shall pay to the City Connection Fees equal to $350.00 per acre for water services and
$700.00 per acre for sewer services, for a total of $1050.00 per acre to be paid on a per -subdivision
section basis prior to making any service connections within the•subdivision section in question. For
example, Country Meadows Subdivision Section 1 consists of 12.8561 acres, so that connection fees
of $13,499.00 shall be paid by the District to the City before any service connections are made
within the Country Meadows Subdivision Section 1.
5.03 Monthly Service Charge. The District shall pay to the City in monthly
installments the following:
(a) Water 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, applied to the actual quantity of
treated water delivered to the District during the month in question per single-family
residential connection. The charge shall be calculated on the basis of the metered
water use or otherwise for each connected user, consistent with the provisions for
such calculation found in the City's Water Service Rate Ordinance, which may be
amended from time to time. A copy of the City's present rate ordinance for water
service, as set forth in Chapter 31, Article IV of the Code of Ordinances of the City
of Baytown, in effect as of the date of this Agreement, is attached as Exhibit "A,"
and incorporated herein. As of the effective date of this contract, the District shall
pay $7.50 for the first 2,000 gallons used per single-family connection and $2.35 for
each additional 1,000 gallons used per single-family connection. The District agrees
that the payment due herein shall be calculated by using the water delivered as
measured by the master meter or individual residential meters, whichever is greater.
Should a disparity between the master meter and meters of the individual residences
exist and the master meter records a greater water usage, the District shall be
responsible for the payment of the amount of water usage indicated by the master
meter at the rate hereinabove expressed.
(1) As used in this subsection (a), the term "day" shall mean a period of twenty-
four (24) consecutive hours beginning at eight o'clock (8:00) a.m. on one calendar
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day and ending at eight o'clock (8:00) a.m. on the next succeeding calendar day. The
term "month" shall mean a period beginning at eight o'clock (8:00) a.m. on the first
day of a calendar month and ending at eight o'clock (8:00) a.m. on the first day of
the next succeeding calendar month, except that the first month or partial month shall
begin on the day of the initial delivery of water hereunder, and the minimum monthly
payment, if any, shall be prorated for such partial month.
(2) The measuring equipment used for the measurement of treated water shall be
read by the District on the last day of each month (or at such period of frequency
arranged between the parties) at eight o'clock (8:00) a.m., or as near thereto as
reasonably practicable; and on such day, the District shall account and certify to the
City the amount of treated water delivered to the District. Additionally on that day,
the District shall render to the City an accounting of the service charges as provided
in Section 5.03. On receipt of the above -described accounting, the Director will bill
the District for the service charges accrued during the preceding month. Payment by
the District to the City shall be made within thirty (30) days following the receipt of
the bill.
(b) Wastewater 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, applied to
the actual consumption of water attributable to the waste gathered by the District's System,
delivered to the City at the point(s) of connection, and treated by the Plant during the month
in question per single-family residential connection within the District's Service Area. The
charge shall be calculated on the basis of the metered water use or otherwise for each
connected user, consistent with the provisions for such calculation found in the City's Sewer
Service Rate Ordinance, which may be amended from time to time. A copy of the City's
present rate ordinance for sanitary sewer service, as set forth in Chapter 31, Article V of the
Code of Ordinances of the City of Baytown, in effect as of the date of this Agreement, is
attached as Exhibit "G," and incorporated herein. As of the effective date of this contract,
the District shall pay $7.50 for the first 2,000 gallons used per single-family connection and
$2.10 for each additional 1,000 gallons used per single-family connection.
5.04 Right of Inspection. City shall have the right at any time by actual count or by an
inspection of the District's books, records and accounts to determine the number of water and sewer
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 for any authorized
representative of the parties.
5.05 Billing and Payments. Beginning on the date when the City first commences
taking waste from the District through the Plant, the District shall account 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
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the first day of each month an accounting of the services charges as provided in Section 5.03. On
receipt of the above -described accounting, the Director will bill the District for the service charges
accrued during the preceding month. Payment by the District to the City shall be made within thirty
(30) days following the receipt of the bill.
Any sums payable by the District to the City under this Contract which are not paid within
thirty (30) days following the receipt of the bill shall bear interest at the rate of one percent (1%) per
month 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, is collected
by the City by suit, there shall be reasonable attorneys' fees added thereto for collection thereof by
suit. Failure to pay charges when due shall constitute an Event of Default. Notwithstanding any of
the above, in the event the District fails to tender payment of any amount when due and such failure
continues for forty-five (45) days after notice in writing to the District of such default, the City may
suspend delivery of services offered hereunder, but the exercise of such right shall be in addition to
any other remedy available to the City.
5.06 Service Charge Modifications. Although the City believes that the present
charge for such services as set forth in Section 8.03 herein are fair and reasonable; nonetheless, the
parties realize that due to unforeseen contingencies, the City may increase the charges for such
services, whether by amendment of the rate schedule for like services outside 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 Agreement unless the
rates for other customers purchasing such services from the City are also increased pro rata.
5.07 Operating Expense and Covenants as to Rates. The sums 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 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. The District agrees to establish and maintain rates
sufficient to pay all costs and expenses of operation and maintenance of the District's System.
5.08 Events of Default. An Event of Default, as stated from time to time herein, shall
constitute a material breach of this Agreement for which the City may, and the District explicitly
recognizes the City's right to, terminate service under this Agreement and to seek all remedies at law
or in equity necessary to enforce the provision(s) violated; provided however, that this Agreement
shall not be terminated prior to the City's giving ten (10) days' written notice to the District of the
Event of Default complained of and a reasonable opportunity for the District to cure said default, or,
if not curable in that time as determined at the sole discretion of the City, to within ten (10) days'
commence substantial curative efforts and faithfully prosecute the same. Termination of service
pursuant to this section shall not limit either party to any other remedy at law or in equity.
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ARTICLE VI
PERFORMANCE REGARDING TREATED WATER SERVICES
The City 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 the City's ability to perform fully and punctually
its obligations to the District under this contract. In case of temporary shortage of water
notwithstanding the City's compliance with the provisions of this Article, the City shall distribute
the available supply as provided by the laws of the State of Texas. It is specifically agreed and
understood that this agreement contemplates that the District will resell the water purchased pursuant
to the terms hereof.
Pursuant to the Amendatory Contract entered into by the City of Houston and the San Jacinto
River Authority, a copy of which is attached hereto as Exhibit "F" and incorporated herein for all
purposes, and not withstanding any other provision of this contract to the contrary, the District
covenants and agrees that it takes the treated water under this contract from City for solely municipal
purposes, as such term is defined by the TNRCC rules, currently in effect or hereinafter amended,
and no other purposes. Such treated water shall be sold, distributed or used and ultimately consumed
only for residential household or other strictly municipal purposes exclusively within the District's
Service Area.
The District understands and agrees that the City, the Baytown Area Water Authority, the
City of Houston or the San Jacinto River Authority, or any combination thereof, may enforce the
covenants contained in this Article by an action brought directly against the District. In the event
that the City maintains any legal proceeding to enforce such covenants, the District agrees to
indemnify the City in the amount of all expenses relating to the legal proceeding, including, but not
limited to, costs of court and reasonable attomey's fees.
The District acknowledges that the City may be liable to the Baytown Area Water Authority,
the City of Houston and/or the San Jacinto River Authority for monetary damages in the event that
the District or any purchaser of water from or through the District fails to comply with the
restrictions and limitations on the sale of water set out in this Article. The District acknowledges
that such monetary damages would amount to seventy-five percent (75%) of the consideration or
revenue received by the City 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 Baytown Area Water Authority, the City of Houston and/or the San Jacinto
River Authority. The District hereby agrees to fully indemnify, hold harmless and defend the City
from and against any such expenses and liability which the City might incur or any loss the City
might suffer as a result of any failure by the District or any purchaser of water from or through the
District, to comply with such restrictions and limitations. The District further agrees to include
covenants in any sales or contracts for sale of water by the District to any other entity to ensure that
said other entity will likewise indemnify, hold harmless and defend the City. The District agrees to
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submit the wording of such covenants for the written approval of the City prior to entering into such
contracts.
The District acknowledges that the City of Houston may be liable to the San Jacinto River
authority for monetary damages in the event that the District or any purchaser of water from or
through the District fails to comply with the restrictions and limitations on the sale of water set out
in this Article. The District acknowledges that such monetary damages would amount to seventy-
five percent (75%) of the consideration or revenue received by the City of Houston 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. The District hereby agrees to fully indemnify, hold harmless and defend the City
of Houston from and against any such expenses and liability which the City of Houston might incur
or any loss the City of Houston might suffer as a result of any failure by the District or any purchaser
of water from or through the District, to comply with such restrictions and limitations. The District
further agrees to include covenants in any sales or contracts for sale of water by the District to any
other entity to ensure that said other entity will likewise indemnify, hold harmless and defend the
City of Houston. The District agrees to submit the wording of such covenants for the written
approval of the City prior to entering into such contracts.
On or before the first anniversary of the date this agreement is signed, the District shall
approve and implement and throughout the term hereof remain in full compliance with a water
conservation program in accordance with the 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, the District shall adopt
an amended plan and submit same to the appropriate authority for review and approval.
Within thirty (30) days after the term of this contract, the District shall furnish the City with
a statement, under oath, showing the quantities and sources of all water for use or resale by the
District.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.01 Force Majeure, In the event any party is rendered unable, wholly or in part, by
force majeure to carry out any of its obligations under this Contract, it is agreed that on such party's
giving notice and full 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 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
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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 God,
strikes, lockouts or other industrial disturbances, acts of the public enemy, war, blockades,
insurrections, riots, epidemics, landslides, lightening, earthquakes, fires, storms, floods, washouts,
droughts, tornadoes, hurricanes, arrests and restraints of governments and people, explosions,
breakage or damage to machines or pipelines and any other inabilities of either party, whether
similar to those enumerated or otherwise and not within the control of the parties claiming such
inability, which by the exercise of due diligence and care such party could not have avoided.
It is understood and agreed that the settlement of strikes or lockouts shall be entirely within
the discretion of the party having the difficulties, and the above -referenced requirement that any
force majeure be remedied with all reasonable dispatch shall not require the settlement of strikes or
lockouts by acceding to demands of the opposing party when such course is inadvisable in the
discretion of the party having the difficulty.
7.02 Approval. Whenever this Agreement requires or permits approval or consent to
be hereinafter given by any party, such approval or consent shall not be unreasonably withheld, and,
if finally given, shall be effective without regard to whether such approval or consent is given before
or after the time required herein. Such approval or consent on behalf of a party shall be evidenced
by an ordinance or resolution adopted by the governing body of the party, or by an appropriate
certificate executed by a person, firm or entity previously authorized to determined and give such
approval or consent on behalf of the party pursuant to an ordinance or resolution adopted by the
governing body, unless stated otherwise herein.
7.03 Address and Notice. Unless otherwise provided in this Agreement, any notice,
communication, request, reply or advice (herein severally and collectively for convenience, called
"Notice") herein provided or permitted to be given, made or accepted by any party to the other must
be in writing and may be given or served by depositing the same in the United States mail, postpaid
and registered or certified and addressed to the party to be notified, with return receipt requested, or
by delivering the same to an officer of such party, or by prepaid telegram, when appropriate,
addressed to the party to be notified. Notice deposited in the mail in the manner hereinabove
described shall be conclusively deemed to be effective, unless otherwise stated in this Agreement,
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:
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If to the City, to
Director of Public Works
City of Baytown
P.O. Box 424
Baytown, TX 77522
Fax: (713) 420-6586
If to the District, to
Chambers County Municipal Utility District No. 1
Young & Brooks
1415 Louisiana, 5th Floor
Houston, TX 77002
Fax: (713) 951-9605
The parties shall have the right from time to time and at any time to change their respective
addresses and each shall have the right to specify as its address any other address, provided at least
fifteen (15) days written notice is given of such new address to the other parties.
7.04 Assignability. This Agreement shall bind and benefit the respective parties and their
legal successors and shall not be assignable in whole or in part by any party without first obtaining
written consent of the other party.
7.05 Regulatory Agencies. This Agreement shall be subject to all present and future valid
laws, orders, rules and regulations of the United States of America, the Sate of Texas, and of any
regulatory body having jurisdiction.
7.06 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
Agreement, shall not be construed as a waiver or relinquishment of the future performance of any
such terms, covenants or conditions 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.
7.07 Modification. Except as otherwise provided herein, this Agreement shall be subject
to change or modification only with the mutual written consent of the parties hereto.
7.08 parties in Interest, This Agreement shall be for the sole and exclusive benefit of
the parties hereto and shall no 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 Agreement.
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7.09 Captions. The captions appearing at the first of each numbered section in this
Agreement are inserted and included solely for convenience and shall never be considered or given
any effect in construing this Agreement 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.
7.10 Severability. The provisions of this Agreement are severable, and if any provision
or part of this Agreement or its application thereto to any person or circumstance shall ever be held
by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder
of this Agreement and the application of such provisions or part of this Agreement to other persons
or circumstances shall not be affected thereby.
7.11 Merger. This Agreement embodies the entire understanding and agreement
between the parties as to the water supply and waste disposal services, and there are no prior
effective representations, warranties or agreements between the parties.
7.12 Construction of Agreement. The parties agree that this Agreement shall not be
construed in favor of or against any party on the basis that the party did or did not author this
Agreement.
7.13 Term. This Agreement shall be in force and effect from the date of execution hereof
for a term of twenty-five (25) years provided that (i) City's contract with the Baytown Area Water
Authority for the purchase of treated water in sufficient quantities to supply the District under the
terms and conditions in effect at the time of the execution of this Agreement remain unchanged and
(ii) the Baytown Area Water Authority's contract with the City of Houston for the purchase of raw
water in sufficient quantities to supply the Baytown Area Water Authority under the terms and
conditions in effect at the time of the execution of this Agreement remain unchanged. This
Agreement shall be automatically extended for additional five (5) year terms if, and only if, both of
the conditions, numbered (i) and (ii), contained in the preceding sentence are satisfied, unless either
party gives written notice of termination one (1) year prior to the date of any such automatic
extension. However, both parties expressly understand and agree that should any portion of the
property involved in this agreement become annexed by the City of Baytown, this Agreement may
terminate with respect to such area at the sole option of the City. Additionally, should the City's
contract with the Baytown Area Water Authority or the Baytown Area Water Authority's contract
with the City of Houston be terminated for any reason or should the City become legally unable to
supply the District, then this contract shall terminate automatically at the time of the such
termination or inability.
7.14 Agreement Read. The parties acknowledge that they have read, understand and intend
to be bound by the terms and conditions of this Agreement.
7.15 Multiple Originals. It is understood and agreed that this Agreement may be executed
in a number of identical counterparts each of which shall be deemed an original for all purposes.
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