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Ordinance No. 7,627960208 -7_ ORDINANCE NO. 7627 ® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN APPROVING AND AUTHORIZING THE EXECUTION OF THE FIFTH AMENDMENT TO THE WHOLESALE WATER SUPPLY CONTRACT BETWEEN THE BAYTOWN AREA WATER AUTHORITY AND THE HARRIS COUNTY FRESH WATER SUPPLY DISTRICT NO. 1 -A; 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 the Fifth Amendment to the Wholesale Water Supply Contract between the Baytown Area Water Authority and the Harris County Fresh Water Supply District No. 1 -A. 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. PETE C. ALFAR , Mayor ATTEST: E!LEEN P. HALL, City Clerk APPROVED AS TO FORM: • .11 (9 c: \council \meetings \February \bawa.Sth FIFTH AMENDMENT ® OF THE WHOLESALE WATER SUPPLY CONTRACT TREATED WATER BY AND BETWEEN THE BAYTOWN AREA WATER AUTHORITY AND HARRIS COUNTY FRESH WATER SUPPLY DISTRICT NO. 1 -A STATE OF TEXAS § COUNTY OF HARRIS § This Fifth Amendment ( "Amendment ") to that certain "Wholesale Water Supply Contract, Treated Water" ( "Agreement ") between the Baytown Area Water Authority ( "Seller ") and Harris County Fresh Water Supply District No. 1 -A ( "Buyer "), dated June 19, 1985, as amended by the First Amendment dated on July 16, 1986, and as amended by the Second Amendment dated October 6, 1987, and as amended by the Third Amendment dated April 25, 1990, and as amended by the Fourth Amendment dated January 15, 1992, is made by and between the same parties on the date hereinafter last specified. WITNESSETH: WHEREAS, Seller and Buyer did enter into a Wholesale Water Supply Contract, Treated Water on June 19, 1985, and amended July 16, 1986, October 6, 1987, April 25, 1990, and January 15, 1992; and WHEREAS, Seller and Buyer now desire to extend the term of the contract; NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the parties hereto do hereby mutually agree as follows: I. Unless a different meaning clearly appears from the context, words and phrases as used in this Amendment shall have the same meaning as in the Agreement. II. Article I of the Agreement is hereby amended by adding the following definition to read as follows: EXHIBIT A 3. "TNRCC" shall mean the Texas Natural Resource Conservation Commission and its successor. III. Article VIII of the Agreement, as amended, is hereby repealed and a new Article VIII is hereby inserted to read in its entirety as follows: This contract shall be for a term of twenty (20) years beginning on the date of Initial Delivery. The contract shall continue for an additional ten (10) years provided that Seller's contract with the City of Houston for the purchase of raw water in sufficient quantities to supply Buyer remains in effect. Should the Seller's contract with the City of Houston be terminated for any reason or should the Seller become legally unable to supply Buyer, then this contract shall terminate automatically at the time of such termination or inability. IV. Article IX, Section 9.2 of the Agreement is hereby repealed and a new Article IX, Section 9.2 is hereby inserted to read in its entirety as follows: 9.2 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 "A" and incorporated herein for all purposes, and not withstanding any other provision of this contract to the contrary, Buyer covenants and agrees that it takes the treated water under this contract from Seller 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 Buyer's service area, which is located within the area shown on Exhibit "B," which is attached hereto and incorporated herein for all intents and purposes. Buyer understands and agrees that Seller, the City of Houston or the San Jacinto River Authority, or any combination thereof, 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 Seller in the amount of all expenses relating to the legal proceeding, including, but not limited to, costs of court and reasonable attorney's fees. (a 2 V. Article IX, Section 9.3 of the Agreement is hereby repealed and a new Article IX, Section 9.3 is hereby inserted to read in its entirety as follows: 9.3 Buyer acknowledges that Seller may be liable to the City of Houston and/or the San Jacinto River Authority for monetary damages in the event that Buyer or any purchaser of water from or through Buyer fails to comply with the restrictions and limitations on the 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 City of Houston and/or San Jacinto River Authority. Buyer hereby agrees to fully indemnify, hold harmless and defend the Seller 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 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, Buyer shall include covenants in the sales or contracts for sale of water to such third parties to ensure that said other entity will likewise indemnify, hold harmless and defend the Seller. Buyer agrees to submit the wording of such covenants to and obtain the written approval of Seller prior to entering into such contracts. Buyer acknowledges that the City of Houston may be liable to the San Jacinto River authority for monetary damages in the event that Buyer or any purchaser of water from or through Buyer fails to comply with the restrictions and limitations on the 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 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. Buyer hereby agrees to fully indemnify, hold harmless and defend the City of Houston from and against any such expenses and liability which City of Houston might incur or any loss City of Houston 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 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, Buyer shall include covenants in the sales or contracts for sale of water to such third parties to ensure that said other entity will likewise indemnify, hold harmless and defend the City of Houston. Buyer agrees to 0 3 submit the wording of such covenants to and obtain the written approval of Seller is prior to entering into such contracts. VI. Article IX of the Agreement is hereby amended by adding Section 9.4 to read in its entirety as follows: 9.4 On or before the first anniversary of the date this amendment is signed, Buyer 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, Buyer shall adopt an amended plan and submit same to the appropriate authority for review and approval. 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. VII. Article XII of the Agreement is hereby amended by amending Section 12.1 to read as follows: 12.1 Until Buyer is otherwise notified in writing by Seller, the address of Seller is and shall remain as follows: Baytown Area Water Authority 2401 Market Street Baytown, TX 77520 Until Seller is otherwise notified in writing by Buyer, the address of Buyer ® is and shall remain as follows: Harris County Fresh Water Supply District No. 1 -A Zinetta A. Burney Attorney at Law 5445 Almeda, Suite 400 Houston, TX 77004 VIII. Article XIII of the Agreement is hereby amended by adding Sections 13.5, 13.6, 13.7, and 13.8, 13.9, and 13.10 to read as follows: 13.5 This Agreement, including the amendments and exhibits hereto, contains all the agreements between the parties hereto with respect to the matters referenced herein and may not be modified orally or in any other manner other than by an agreement in writing, signed by all the parties hereto or their respective successors in interest. 13.6 The construction, interpretation and performance of this Agreement shall be governed by the laws of the State of Texas. Furthermore, both parties hereby irrevocably agree that any legal proceeding arising out of or in connection with this Agreement shall only be brought in the Justice Court Precinct 3, Position 2 of Harris County Texas, in the District Courts of Harris County, Texas, or in the United States District Court for the Southern District of Texas, Houston, Harris County, Division. 13.7 All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. 13.8 Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective corporations. 13.9 The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. • 13.10 It is understood and agreed that this Agreement maybe executed in ® a number of identical counterparts each of which shall be deemed an original for all purposes. IX. The provisions of this Amendment and the provisions of the Agreement should be read together and construed as one agreement provided that, in the event of any conflict or inconsistency between the provisions of this Amendment and the provisions of the Agreement, the provisions of this Amendment shall control. IN WITNESS WHEREOF, the parties hereto have executed this Amendment in multiple copies, each of which shall be deemed to be an original, but all of which shall constitute but one and the same amendment, this day of 1996, the date of the last signature hereto. BAYTOWN AREA WATER AUTHORITY ROBERT L. GILLETTE President ATTEST: PETER R. BUENZ Secretary APPROVED AS TO FORM: IGNACIO RAMIREZ, SR. Attorney for the Baytown Area Water Authority • 6 HARRIS COUNTY FRESH WATER SUPPLY DISTRICT NO. 1 -A Signature mss t E M • Printed Name o c-IJ7 Title Signature j p,jkkP, �/krTiS� Printed Name _5EC.2�Ta -�,y Title APPROVED: CITY OF HOUSTON Signature Printed Name Title J ATTEST: Signature Printed Name Title cAkl h 1212hcfwsd I a.amd • FIFTH AMENDMENT WHOLESALE WATER SUPPLY CONTRACT BAYTOWN AREA WATER AUTHORITY HARRIS COUNTY FRESH WATER SUPPLY DISTRICT NO. I -A APPROVED AS CONFORMING TO REQUIREMENTS OF CONTRACT NO. 34739, SECTIONS 9.2 AND 9.3 CITY OF HOUSTON Z�1� ;F' 09� Signature Gene L. Locke Printed Name City Attorney Title • • -'iIlr /7-' '' AAEENDATORY CONTRACT BETWEEN SAN JACINTO RIVER AUTHORITY AND THE CITY OF HOUSTON, TEXAS THE STATE OF TEXAS X X COUNTY OF HARRIS X THIS CONTRACT executed as of the_7;7„ ,/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, ( "che City ") a municipal corDOratiori: 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'ori December 1, 1975, and for no ocher pur- poses, and only within the boundaries of BAWA as such boundaries exist on the dace of this contract; PROVIDED, that no such water shall be sold, distributed or used other than for residential household and ocher strictly domestic purposes within the area bounded by Interstate Highway No. 10 on the north, Sjolander Road on cha %:'cst, tvc`zr Road on the south, and Cedar Bayou on the east, without written consent of SJRA. 0 The City shall insure chat all instruments relating to the sale of eater to BA14A include appropriate covenants on EXHIBIT A 0 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 BA14A 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 they 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 SJPA an amount equal to $50 per day during such period that the City receives payment from BAWA for water sold under this waive=, but suzh pajinoncs to SJZA not extend beyone a period of 20 years. Payment shall be made on a quarterly basis on or before the 10th day of the month following each calendar quarter. -2- Ll C7 5. The contract shall not be assignable by either party without the written consent of the other; however the obligations imposed hereunder shall be binding on their successors or assigns. The waiver provided herein shall be applicable only to sales by the City to BAWA and shall not be applicable to any sale by the City to any other entity, including any successors or assignee entity to BA14A, 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 1976 in duplicate originals, each of which shall constitute an original ATTEST: By. NClcuE Secretary SAN JACINTO RIVER AUTHORITY By _ , • Vice -Pre enc CITY OF HOUSTON ATTEST: By 3y city Secretary COUNTERSIGNED: icy ControiCer PROVED A City Attorney C i t yc=� -3- L-J FIFTH AMENDMENT OF THE WHOLESALE WATER SUPPLY CONTRACT TREATED WATER BY AND BETWEEN THE BAYTOWN AREA WATER AUTHORITY AND HARRIS COUNTY FRESH WATER SUPPLY DISTRICT NO. 1-A STATE OF TEXAS § COUNTY OF HARRIS § This Fifth Amendment("Amendment") to that certain"Wholesale Water Supply Contract, Treated Water" ("Agreement") between the Baytown Area Water Authority("Seller") and Harris County Fresh Water Supply District No. 1-A ("Buyer"), dated June 19, 1985, as amended by the First Amendment dated on July 16, 1986,and as amended by the Second Amendment dated October 6, 1987, and as amended by the Third Amendment dated April 25, 1990, and as amended by the Fourth Amendment dated January 15, 1992, is made by and between the same parties on the date hereinafter last specified. WITNESSETH : WHEREAS, Seller and Buyer did enter into a Wholesale Water Supply Contract, Treated Water on June 19, 1985,and amended July 16, 1986,October 6, 1987, April 25, 1990, and January 15, 1992; and Wl IEREAS, Seller and Buyer now desire to extend the term of the contract; NOW THEREFORE,for and in consideration of the mutual covenants and agreements herein contained,the parties hereto do hereby mutually agree as follows: I. Unless a different meaning clearly appears from the context, words and phrases as used in this Amendment shall have the same meaning as in the Agreement. II. Article I of the Agreement is hereby amended by adding the following definition to read as follows: 3. "TNRCC"shall mean the Texas Natural Resource Conservation Commission and its successor. III. Article VIII of the Agreement, as amended, is hereby repealed and a new Article VIII is hereby inserted to read in its entirety as follows: This contract shall be for a term of twenty(20)years beginning on the date of Initial Delivery. The contract shall continue for an additional ten(10) years provided that Seller's contract with the City of Ilouston for the purchase of raw water in sufficient quantities to supply Buyer remains in effect. Should the Seller's contract with the City of Houston be terminated for any reason or should the Seller become legally unable to supply Buyer, then this contract shall terminate automatically at the time of such termination or inability. IV. Article IX, Section 9.2 of the Agreement is hereby repealed and a new Article IX, Section 9.2 is hereby inserted to read in its entirety as follows: 9.2 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"A" and incorporated herein for all purposes, and not withstanding any other provision of this contract to the contrary, Buyer covenants and agrees that it takes the treated water under this contract from Seller 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 Buyer's service area,which is located within the area shown on Exhibit `B," which is attached hereto and incorporated herein for all intents and purposes. Buyer understands and agrees that Seller, the City of Houston or the San Jacinto River Authority, or any combination thereof, 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 Seller in the amount of all expenses relating to the legal proceeding, including, but not limited to, costs of court and reasonable attorney's fees. 1) V. Article IX, Section 9.3 of the Agreement is hereby repealed and a new Article IX, Section 9.3 is hereby inserted to read in its entirety as follows: 9.3 Buyer acknowledges that Seller may be liable to the City of Houston and/or the San Jacinto River Authority for monetary damages in the event that Buyer or any purchaser of water from or through Buyer fails to comply with the restrictions and limitations on the 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 City of Houston and/or San Jacinto River Authority. Buyer hereby agrees to fully indemnify,hold harmless and defend the Seller 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 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, Buyer shall include covenants in the sales or contracts for sale of water to such third parties to ensure that said other entity will likewise indemnify,hold harmless and defend the Seller. Buyer agrees to submit the wording of such covenants to and obtain the written approval of Seller prior to entering into such contracts. Buyer acknowledges that the City of Houston may be liable to the San Jacinto River authority for monetary damages in the event that Buyer or any purchaser of water from or through Buyer fails to comply with the restrictions and limitations on the 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 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. Buyer hereby agrees to fully indemnify,hold harmless and defend the City of Ilouston from and against any such expenses and liability which City of Houston might incur or any loss City of I louston 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 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, Buyer shall include covenants in the sales or contracts for sale of water to such third parties to ensure that said other entity will likewise indemnify,hold harmless and defend the City of 1 louston. Buyer agrees to 3 submit the wording of such covenants to and obtain the written approval of Seller prior to entering into such contracts. VI. Article IX of the Agreement is hereby amended by adding Section 9.4 to read in its entirety as follows: 9.4 On or before the first anniversary of the date this amendment is signed,Buyer 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, Buyer shall adopt an amended plan and submit same to the appropriate authority for review and approval. 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. VII. Article XII of the Agreement is hereby amended by amending Section 12.1 to read as follows: 12.1 Until Buyer is otherwise notified in writing by Seller,the address of Seller is and shall remain as follows: Baytown Area Water Authority 2401 Market Street Baytown, TX 77520 4 Until Seller is otherwise notified in writing by Buyer, the address of Buyer is and shall remain as follows: Harris County Fresh Water Supply District No. 1-A Zinetta A. Burney Attorney at Law 5445 Almeda, Suite 400 Houston,TX 77004 VIII. Article XIII of the Agreement is hereby amended by adding Sections 13.5, 13.6, 13.7, and 13.8, 13.9, and 13.10 to read as follows: 13.5 This Agreement, including the amendments and exhibits hereto, contains all the agreements between the parties hereto with respect to the matters referenced herein and may not be modified orally or in any other manner other than by an agreement in writing, signed by all the parties hereto or their respective successors in interest. 13.6 The construction, interpretation and performance of this Agreement shall be governed by the laws of the State of Texas. Furthermore,both parties hereby irrevocably agree that any legal proceeding arising out of or in connection with this Agreement shall only be brought in the Justice Court Precinct 3,Position 2 of Ilarris County Texas, in the District Courts of Harris County,Texas, or in the United States District Court for the Southern District of Texas, Houston, Harris County, Division. 13.7 All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. 13.8 Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective corporations. 13.9 The parties acknowledge that they have read,understand and intend to be bound by the terms and conditions of this Agreement. 5 13.10 It is understood and agreed that this Agreement maybe executed in a number of identical counterparts each of which shall be deemed an original for all purposes. IX. The provisions of this Amendment and the provisions of the Agreement should be read together and construed as one agreement provided that, in the event of any conflict or inconsistency between the provisions of this Amendment and the provisions of the Agreement,the provisions of this Amendment shall control. IN WITNESS WHEREOF, the parties hereto have executed this Amendment in multiple copies,each of which shall be deemed to be an original,but all of which shall constitute but one and the same amendment,this�day of .'2' 7 aAe�� , 1996,the date of the last signature hereto. BAYTOWN AREA WATER AUTHORITY RO ERT L. GILLETTE President ATTEST: PETER R. BUENZ Secretary APPROVED AS TO FORM: eb9fqACIO RAMIREZ, Wb. Attorney for the Baytown Area Water Authority 6 IIARRIS COUNTY FRESH WATER SUPPLY DISTRICT NO. 1-A Signature B0%)E✓ M CA67 C Printed Name Title aa� Signature --rf Printed Name Title APPROVED: CITY OF IIOUSTON Signature Printed Name Title 7 ATTEST: Signature Printed Name Title cAklh 12\2hcfwsd 1 a.amd g FIFTH AMENDMENT WHOLESALE WATER SUPPLY CONTRACT BAYTOWN AREA WATER AUTHORITY HARRIS COUNTY FRESH WATER SUPPLY DISTRICT NO. 1-A APPROVED AS CONFORMING TO REQUIREMENTS OF CONTRACT NO. 34739, SECTIONS 9.2 AND 9.3 CITY OF HOUSTON Signature /L Gene L. Locke Printed Name City Attorney Title ✓%//i ?. rr Ar(ENDATORY CONTRACT BETWEEN SAN JACINTO RIVER AUTHORITY AND THE CITY OF HOUSTON, TEXAS THE STATE OF TEXAS X X COUNTY OF HARRIS X THIS CONTRACT executed as of the_;Z:7,-.eday 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 corooratiori: 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 'od 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 ocher strictly domestic purposes within the area bounded by Interstate Highway No. 10 on the north, Sjolander Road on the a:sst, .1rc`er Road oit the south, and Cedar Bayou on the east. without written consent of SJRA. 2. The City shall insure that all instruments relating co the sale of water to BA14A include appropriate covenants on EXHIBIT A the oart 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 they 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 su:h payinants to SJRA sAa.J." noc extend beyond a period of 20 years.' Payment shall be made on a quarterly basis on or before the loth day of the month following each calendar quarter. -2- 5. The contract shall not be assignable by either party without the written consent of the other; however the obligations imposed hereunder shall be binding on their successors or assigns. The waiver provided herein shall be applicable only to sales by the City to BAWA and shall not be applicable to any sale by the City to any other entity, including any successors or assignee entity to BA14A, 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 t•farch 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 day of 1976 in duplicate originals, each of which shall constitute an original SAN JACINTO RIVER AUTHORITY ATTEST: By By. t t uE e.e ecretary CITY OF HOUSTON ATTEST: L4 By C 4ay By, "M I City Secretary COUNTERSIGNED: xcy ConcrolTer APPROVED A City Attorney City n -3- V� '—' �'• �t ,\ +° �� �g p � � D � � q � � D j � i, � (/) � � � — < s D —� � � � \ fTl D �C o