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Ordinance No. 9,639 ORDINANCE NO. 9639 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, APPROVING THE WHOLESALE WATER SUPPLY CONTRACT BETWEEN THE BAYTOWN AREA WATER AUTHORITY AND HARRIS COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NUMBER 1; 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 the Wholesale Water Supply Contract between Baytown Area Water Authority and Harris County Water Control and Improvement District Number 1. Said contract is attached hereto as Exhibit "A,"and incorporated herein for all intents and purposes. Section 2: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 25th day of September, 2003. PETE C. ALFARO,Mayor ATTEST: GARY W. SMITH, City Clerk • APPROVED AS TO FORM: GNACIO RAMIREZ, ., City Attorney F:\Karen\Files\City Council\Ordinances\WholesaleWaterAgreementwHCWID#1 Ordinance.doc Water Supply Contract -- Treated Water Harris County Water Control and Improvement District No. 1 STATE OF TEXAS § COUNTY OF HARRIS § This Water Supply Contract -- Treated Water, hereinafter referred to as the "Contract," is made and entered into on the date herein after last specified by and between the Baytown Area Water Authority, a governmental agency and a body politic and corporate of the State of Texas, created pursuant to Chapter 600,Acts of the 63rd Legislature,Regular Session, 1973,hereinafter referred to as `BAWA," and the Harris County Water Control and Improvement District No. 1, which is principally situated in Highlands,Harris County, Texas and having an address of 125 San Jacinto Avenue, Highlands, Texas 77562,hereinafter referred to as "BUYER." .WHEREAS,BAWA has the right under a contract with the City of Houston to buy untreated water from the City of Houston; and WHEREAS, BAWA has constructed and will continue to repair, construct and modify certain facilities to treat and deliver water to its customers at several points of delivery; and WHEREAS, BUYER has constructed or contracted with BAWA to construct certain facilities to enable BUYER to receive treated water from BAWA; and WHEREAS, BAWA desires to sell quantities of treated water to BUYER; and WHEREAS, BUYER, subject to the terms and conditions contained herein, desires to purchase from BAWA its treated water; and WHEREAS,BAWA and BUYER have found,and do hereby find,that BAWA and BUYER are authorized by the laws of the State of Texas to enter into a contract for the sale of water upon such terms and for the period of time hereinafter set forth; and WHEREAS,BUYER is authorized to enter into a contract for the purchase of treated water from BAWA pursuant to Section 54.218 of the Texas Water Code; NOW THEREFORE,for and in consideration of the premises and the mutual covenants and agreements herein contained, the parties hereto do hereby mutually agree as follows: "DH S I-.1M A ARTICLE I DEFINITIONS Unless a different meaning or intent clearly appears from the context, the following words and terms shall have the meanings specified in this Article, respectively: 1.01 "Act"means Chapter 600, Acts of the 63`d Legislature, Regular Session, 1973. 1.02 "BAWA Contract"means the Water Supply Contract between the City of Houston and Baytown Area Water Authority,dated October 24, 1994,between BAWA,as buyer,and the City of Houston, Texas, as seller, a copy of which is attached hereto and incorporated herein for all intents and purposes. 1.03 "Beginning Date" shall mean the date that BUYER begins receiving treated water from BAWA under this Contract or the effective date hereof,whichever is later. Such date may occur after the effective date of this Contract as defined in Article VIE. Provided, however, that if BUYER does not begin receiving treated water within one year of the effective date hereof, BAWA shall be under no further obligation to supply BUYER with treated water. 1.04 `BUYER's Facilities"shall mean facilities constructed by BUYER to enable BUYER to receive treated water. 1.05 "Contract Quantity"shall mean the maximum quantity of treated water that BAWA agrees to reserve and sell to BUYER pursuant to Section 2.01 herein. 1.06 "Contract Term"is defined in Article VDT. 1.07 "General Manager" shall mean the General Manager of the Baytown Area Water Authority or any successor agency and all persons designated by the General Manager to administer the sale and delivery of water to BUYER. 1.08 "MGD" is an abbreviation for million gallons of water per day. As used in this contract, "MGD" refers to a quantity of water during a period of time expressed for convenience in terms of an average daily quantity during a calendar month(unless a different period of time is specified). The volume of two MGD for a calendar month,for example,is calculated as follows: Two million gallons multiplied by the number of days in such calendar month. 1.09 "Point of Delivery" shall mean those delivery points as indicated on Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes, to which BAWA agrees to deliver treated water to BUYER. 1.10 "Point of Measurement" shall mean the location of the meter at which BUYER's consumption of water is measured,more particularly described in Exhibit"A." 2 G 1.11 "Project"means the property,works,facilities and improvements,whether previously existing or to be made,constructed or acquired,within or without the boundaries of BAWA, necessary (a) to acquire surface water supplies from sources both within and without the boundaries of BAWA, including particularly the sources provided by BAWA's Contract(herein defined), • (b) to conserve, store, transport, treat and purify untreated water purchased by BAWA pursuant to BAWA's Contract, and (c) to distribute, sell and deliver treated water to BUYER pursuant to the terms of the Contract. 1.12 . "Service Area"shall mean the area within the boundaries more particularly described in Exhibit"B,"which is attached hereto and incorporated herein for all intents and purposes. 1.13 "TCEQ" shall mean the Texas Commission on Environmental Quality or its successor. 1.14 "Water" shall mean potable water meeting the minimum drinking water standards prescribed by Texas Department of Health Resources and TCEQ, and their successor agencies. ARTICLE II SALE AND DELIVERY OF WATER 2.01 Subject to the terms and conditions of this Contract, during the Contract Term, BAWA agrees to sell and deliver (or cause to be delivered) to BUYER, all of BUYER's water requirements of treated water at the Points of Delivery at daily rates of delivery;and BUYER agrees to purchase from BAWA, all of BUYER's treated water requirements for resale at the Points of Delivery during the term of this Contract. It is expressly agreed to and understood that BAWA shall not be obligated to deliver to BUYER treated water in excess of the Contract Quantity which shall be the monthly average per day of 0.7000 MGD. 2.02 The Points of Delivery for treated water sold under this contract shall be designated in writing by BUYER; provided, however, BAWA reserves the right to reject any Point of Delivery designated by BUYER which would affect,interfere with or increase the cost of any other facilities or operations which BAWA might wish to construct or implement, or plan to construct or implement, or which would adversely affect BAWA's ability to provide treated water to any of its customers. Both BAWA and BUYER agree that the Points of Delivery shall be those indicated on Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes. Additionally,BUYER may give BAWA notice in writing of any additional or change in Point(s)of 3 Delivery designated by BUYER,and BAWA agrees to accept or reject such Point(s)of Delivery by a response in writing within thirty(30) days after BAWA's receipt of the notice. 2.03 Treated water may be delivered to BUYER from any source or combination of sources available to BAWA. 2.04 The treated water to be delivered shall meet minimum standards prescribed by the State of Texas for municipal purposes(as such term is defined by the TCEQ in its rules)and shall be only used by BUYER within the Service Area. 2.05 If BUYER wishes to reserve for itself additional monthly quantities of treated water, BUYER must notify BAWA in writing of BUYER's desire to do so. The General Manager may,at his discretion after considering the treated water requirements of BUYER and BAWA's obligations and commitments, increase the quantity of treated water supplied to BUYER; provided,however, that BAWA shall be under no obligation to deliver treated water in excess of Contract Quantity. BAWA may, at its discretion, discontinue delivery of such additional monthly requirements of treated water by giving BUYER thirty(30) days' written notice. 2.06 BUYER shall own and be responsible for all lines connected to BAWA's transmission line, beginning at the point where the metering device is installed to meter sales to BUYER. ARTICLE III RATES AND PRICES 3.01 Whenever BUYER's monthly consumption shall exceed the monthly Contract Quantity by ten percent(10%),a five percent(5%)surcharge shall be charged against that portion of the monthly consumption that exceeds the monthly Contract Quantity. Provided, however, this surcharge shall not apply to any increase in the quantity of treated water granted by the General Manager pursuant to Section 2.05 hereof. 3.02 All water sold and delivered by BAWA to BUYER for which BUYER is obligated to pay hereunder shall be sold to BUYER at the rate of$1.29 per one thousand gallons. 3.03 The amount of water delivered to BUYER shall be measured by the metering equipment located at the point of delivery. 3.04 Additionally,BUYER understands and agrees that BAWA may at any time,by order duly enacted, increase or change the price or prices for treated water as set forth in this article; provided,however that except where an independent rate analysis conducted by a qualified concern indicates that certain rate increase is required, the price or prices for treated water shall not be increased percentagewise to BUYER during any twelve(12)month period of this contract in excess of the percentage rate increase in BAWA's water rates to other purchasers of treated water during the same period. 4 f ARTICLE IV REPORTS 4.01 Within fifteen(15)days after the end of each quarterly period during the term of this Contract, BUYER shall furnish BAWA with a statement under oath showing the quantities and sources of all water for use or resale by BUYER. ARTICLE V MEASURING EQUIPMENT 5.01 At its own cost and expense,BUYER shall furnish and install at the Point of Delivery hereunder,measuring equipment properly equipped with meters,totalizers and devices of standards type for measuring and recoding accurately the quantity of water delivered under this Contract. The meters shall have a capacity for measuring the quantity of water delivered within an accuracy tolerance of two per cent (2%) plus or minus for a given rate of flow. BUYER shall also install, operate and maintain as required by BAWA, pressure regulating devices and equipment. All such equipment shall be approved by BAWA. After BAWA's approval of the installation of the measuring equipment,the same shall become property of BAWA. All measuring equipment shall be owned by BAWA, even when purchased by BUYER,and all measuring equipment shall be located at the Point of Delivery as shown on Exhibit "A." All pressure regulating devices and equipment shall remain the property of BUYER,who shall be responsible for its operation,maintenance,repair and replacement thereof. 5.02 During all reasonable hours as determined by the General Manager in his sole discretion,BAWA,the City of Houston,and the Coastal Water Authority of Texas shall have access to the measuring equipment. BUYER may have access to all records pertinent to determining the measurement and quantity of treated water actually delivered hereunder, but the reading of the measuring equipment for purposes of billing shall be done by BAWA. 5.03 After approved installation thereof,BAWA shall maintain the measuring equipment within the accuracy tolerance specified in Section 5.04 by periodic tests. BAWA shall conduct such tests at least once every twelve(12)months and shall notify BUYER at least forty-eight(48)hours in advance of the time and location at which tests are to be made. BAWA agrees to properly test said measuring equipment at BAWA's cost when requested to do so by BUYER once every twelve(12) months. If BUYER requests an additional test within twelve (12) months, BAWA shall charge BUYER an amount equal to BAWA's costs to perform such test unless the test reveals that the equipment registers one hundred two percent (102%) or more for a given flow rate. In addition, BUYER shall have the right to independently check, at its own cost, said measuring equipment at any time upon forty-eight (48) hours' notification to the General Manager and opportunity for the General Manager to witness such tests. 5.04 Should any test of the measuring equipment in question show that the equipment registers either more than one hundred two percent(102%)or less than ninety-five percent(95%)of 5 the water delivered for a given flow rate, the total quantity of water delivered to BUYER will be deemed to be the average daily consumption as measured by the measuring equipment when in working order, and the meter shall be calibrated to the manufacturer's specifications (in the case of Venturi meters) or the AWWA specifications (for all other types of meters) for the given rate of flow, or replaced by BAWA with accurate measuring equipment that is tested before it is placed in service. The adjustment shall be for a period extending back to the time when the inaccuracy began, if such time is ascertainable;and if such time is not ascertainable,for a period extending back to the last test of the measuring equipment or one hundred twenty(120)days,whichever is shorter. 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. As used in this section, the expression "given rate of flow" means one of the following selected by the General Manager: (a) the total quantity of water delivered during the preceding period(usually a calendar month) as reflected by the totalizer, converted to gallons per minute; (b) high, low and intermediate rates of flow in the flow rate, as reflected by the flow recording devices; (c) the applicable Contract Quantity for the current period, usually a calendar month, converted to gallons per minute; or (d) AWWA-specified test flow rates for that size and type of meter. 5.05 In the event of a dispute between BAWA and BUYER as to the accuracy of the testing equipment used by BAWA to conduct, the accuracy test, an independent check may be mutually agreed upon between BUYER and BAWA and shall be conducted by an independent measuring equipment company suitable to both BUYER and BAWA. The cost of such test shall be at BUYER's sole expense. 5.06 BUYER may install, at its own cost and expense, such check meters in BUYER's pipeline or canal as may be deemed appropriate,but BAWA shall have the right of ingress and egress to such check meters during all reasonable hours;provided,however,that billing computations shall be on the basis of the results of the measuring equipment set forth above. ARTICLE VI BILLING AND PAYMENT 6.01 As used in this Article VI, the term "day" shall mean a period of twenty-four (24) consecutive hours beginning at a mutually agreed-upon time on one calendar day and ending at the same time on the next succeeding calendar day,and the term"month"shall mean a period beginning 6 at a mutually agreed-upon time on the first day of a calendar month and ending at the same time on the first day on the next succeeding calendar month. 6.02 The measuring equipment shall be read on the day at the end of each month (or at such period of frequency arranged between the parties) and at a mutually agreed upon time, or as near thereto as practicable. 6.03 The quantities of treated water for which payment is due by BUYER hereunder in any month shall be the total quantity of treated water delivered to BUYER in such month determined by the measuring equipment described in Article V hereof. 6.04 BAWA shall bill BUYER at BUYER's address within ten (10) days after the read date by a statement showing the quantity of water used during the preceding month. Payment shall be due and payable to BAWA at its offices in Baytown, Harris County, Texas, on or before the twentieth day after receipt of such statement. 6.05 Should BUYER fail to tender payment of any amount when due,interest thereon shall accrue at the rate of ten percent per annum from the date when due until paid and BUYER shall be deemed to be in default. ARTICLE VII TITLE TO AND RESPONSIBILITY FOR WATER 7.01 As between BAWA and BUYER, BAWA shall be in exclusive control and possession of, and solely responsible for, all treated water deliverable hereunder and solely responsible for any damage or injury caused thereby until the same shall pass through the Point of Delivery and thereafter, BUYER shall be in exclusive control and possession thereof and solely responsible for any injury or damage caused thereby. 7.02 BAWA MAKES NO WARRANTY,EXPRESS OR IMPLIED,REGARDING THE QUALITY OR DELIVERY PRESSURE OF TREATED WATER, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 7.03 With respect to all water handling facilities located between the Point of Delivery and the Point of Measurement, BAWA and BUYER specifically agree: (a) that all such facilities, other than the measurement equipment itself, shall be and remain the property of BUYER subject to the terms of this Contract; (b) that BUYER shall take all reasonable steps to maintain such facilities and to prevent leaks or discharges from such facilities; 7 (c) that BUYER shall repair any such leak or discharge at once upon receiving notice thereof and pay BAWA the price of any water lost by reason of such a leak or discharge; (d) that BUYER shall correct or repair any damage caused by any such leak or discharge and shall hold BAWA harmless from and against any such damage and claims therefore; (e) that BUYER shall alter or relocate, at its sole cost, any such facilities whenever BAWA shall reasonably request in writing that the same be done; and (f) that BUYER shall promptly remove such facilities and restore their locations to their pre-existing conditions whenever this Contract is no longer in effect and BAWA so requests in writing. ARTICLE VIII TERM This Contract shall be in force and effect beginning on the date of execution by BAWA until September 28, 2023, at 8:00 a.m. ARTICLE IX PERFORMANCE BY BAWA AND BUYER 9.01 BAWA 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 BAWA's ability to perform fully and punctually its obligations to BUYER under this Contract. In case of temporary shortage of water, notwithstanding BAWA's compliance with the portions of this Article IX,BAWA shall distribute the available supply as provided by the laws of the State of Texas,particularly Section 11.039(a)of the Texas Water Code, as amended. 9.02 Pursuant to the Amendatory Contract entered into by the City of Houston and the San Jacinto River Authority, which is incorporated herein by this reference, BUYER covenants and agrees that it shall take treated water for the purpose of distribution through its system, and such water shall be used for municipal purposes (as.such term is defined by TCEQ Rules, currently in effect or as hereinafter amended)and for no other purposes.BUYER covenants and agrees that such treated water shall be sold, distributed or used and ultimately consumed only for residential household or other strictly municipal purposes exclusively within the Service Area. No extension of these boundaries may be made by BUYER without written consent of BAWA as well as the written consent of the San Jacinto River Authority and City of Houston,when required pursuant to the Water Supply Contract between the City of Houston and BAWA,dated October 24, 1994. BUYER agrees to include covenants similar to those contained in this Section 9.02 in any sales or contracts for sale of water by BUYER to any other entity. BUYER agrees to submit the wording of such covenants to 8 BAWA for the written approval of BAWA and all other required entities prior to entering into such contracts. BUYER understands and agrees that BAWA, the City of Houston and/or the San Jacinto River Authority may enforce the covenants contained in Section 9.02 herein by an action brought directly against BUYER. In the event that BAWA and/or the City of Houston maintains any legal proceeding to enforce such covenants, BUYER agrees to indemnify BAWA and/or the City of Houston in the amount of all expenses relating to the legal proceeding,including,but not limited to, costs of court and reasonable attorneys' fees. 9.03 BUYER acknowledges that according to the terms of the contract between BAWA and the City of Houston,BAWA 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 9.02 herein. BUYER acknowledges that such monetary damages would amount to seventy- five percent(75%)of the consideration or revenue received by BAWA for the estimated amount of water distributed, sold or used in violation of such restrictions or limitations, plus all litigation expenses,reasonable attorney's fees,and all other remedies available to the City of Houston and/or the San Jacinto River Authority. BUYER hereby agrees to totally indemnify, defend, and save BAWA harmless from and against any such expenses and liability which BAWA might incur or any loss BAWA might suffer, as a result of any failure by BUYER, or any purchaser of water from or through BUYER, to comply with such restriction and limitation. 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 any such sales or contracts for sale of water to such third party(ies) to ensure that said other entity(ies) will likewise indemnify, hold harmless, and defend BAWA. BUYER agrees to submit the wording of such covenants for the approval of BAWA prior to entering into such contracts. BUYER acknowledges that according to the terms of the contract between the City of Houston and the San Jacinto River Authority,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 9.02 herein. BUYER 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's fees, and all other remedies available to the San Jacinto River Authority. BUYER hereby agrees to fully indemnify, defend, and save the City of Houston harmless 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 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 any such sales or contracts for sale of water to such third party(ies) to ensure that said other entity(ies)will likewise indemnify,hold harmless,and defend the City of Houston. BUYER agrees to submit the wording of 9 such covenants for the approval of BAWA and the City of Houston prior to entering into such contracts. 9.04 BUYER agrees to maintain,at its sole expense,its water wells,if any,in good repair and working order to facilitate the use of such water wells as an emergency source of supply, if required,should BAWA be unable to deliver the Contract Quantity of water for any reason. BUYER shall bear all costs of maintaining and supplying such emergency sources of supply. ARTICLE X ENVIRONMENTAL CONSIDERATIONS 10.01 On or before the first anniversary of the effective date of this contract,BUYER shall approve, implement and throughout the term hereof remain in full compliance with a water conservation program,including,but not limited to,a drought contingency plan, in accordance with the requirements of the TCEQ. 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 TCEQ adopts new requirements, BUYER shall adopt an amended plan and submit the same to the appropriate authority for review and approval. BUYER shall submit to BAWA a copy of BUYER'S water conservation plan,including its drought contingency plan, along with all amendments thereto upon BUYER'S submission of the same to TCEQ or other appropriate authority. 10.02 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 BUYER and the third party, providing for the implementation and continued compliance with a water conservation program consistent with the requirements of the TCEQ. ARTICLE XI REMEDIES UPON DEFAULT 11.01 In the event of any default by BUYER in the performance of any of BUYER's obligations hereunder which shall continue for a period of thirty (30) days or more, BAWA shall give written notice to BUYER specifying the matter with respect to which BUYER is in default and requesting that the same be remedied with promptness and dispatch. In the event BUYER,within forty-five (45) days after the mailing of such notice by BAWA, has failed to remedy the matter in default,BAWA may suspend further delivery of treated water to BUYER hereunder;and in the event such default on the part of BUYER continues for an additional thirty(30)days,BAWA may,by an additional written notice to BUYER, cancel and terminate this contract, whereupon all rights of BUYER and all obligations of BAWA hereunder shall terminate and be at an end. The exercise of such rights shall be in addition to any other remedies available to BAWA under the laws of the State of Texas. 10 11.02 During any monthly period in which BAWA is unable to deliver to BUYER, BUYER's daily requirements of water,whether as a result of temporary curtailments resulting from temporary shortages as provided in Section 9.01 hereof or of force majeure as provided in Article XII hereof, BUYER shall be obligated to pay BAWA only for the quantities of treated water actually delivered to BUYER under this contract during such month. During any such period,BUYER shall be free to obtain treated water from other sources. 11.03 The failure of either party to insist in any one or more instance upon performance of any of the terms, covenants or conditions of this Contract, shall not be construed as a waiver or relinquishment of the future performance of any such term,covenant,or condition by the other party hereto,but the obligation of such other party with respect to future performance shall continue in full • force and effect. ARTICLE XII FORCE MAJEURE 12.01 In the event either party is rendered unable, wholly or in part, by force majeure to carry out any of its obligations under this Contract other than the payment of money, or in the event BUYER is rendered unable,wholly or in part,by force majeure to operate BUYER's facilities,it is agreed that on such party's giving notice and full particulars of such force majeure in writing or by telefax or telegraph to the other party as soon as possible after the occurrence of the cause relied upon,then the obligations of the party given such notice,to the extent it is affected by force majeure and to the extent that due diligence is being used to resume performance at the earliest practicable time, shall be suspended during the continuance of any inability so caused as to the extent provided but for no longer period. Such cause shall as far as possible be remedied with all reasonable dispatch. 12.02 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, acts of terrorism, war,blockades,insurrections,riots,epidemics,landslides,lighting,earthquakes,fires,storms,floods, washouts, droughts, tornadoes, hurricanes, arrests and restraints of government and people, explosions, breakage or damage to machinery, equipment, pipelines or canals, and any other inabilities of either party whether similar to those enumerated or otherwise and not within the control of the party claiming such inability which by the exercise of due diligence and care such party could not have avoided. 12.03 It is understood and agreed that the settlement of strikes or lockouts shall be entirely within the discretion of the party having the difficulty and the above requirement that any 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. 12.04 BUYER shall not be guaranteed any specific quantity or pressure of water whenever BAWA's treated water supply is limited or when BAWA's equipment may become inoperative due 11 to unforeseen breakdown or scheduled maintenance and repairs,and BAWA is in no case to be held to any liability for failure to furnish any specific amount or pressure of water. BAWA agrees that it will attempt to make any necessary repairs or adjustments to its equipment within reasonable times mutually agreeable to both parties. It is further agreed that BAWA may,without liability of default, interrupt its services hereunder to make necessary alterations to or repairs in its facilities,but only if such interruption cannot otherwise reasonably be avoided. BAWA shall schedule interruptions in advance after consultation with BUYER. ARTICLE XIII ADDRESS AND NOTICES 13.01 Until BUYER is otherwise notified in writing by BAWA,the address of BAWA is and shall remain as follows: Baytown Area Water Authority Attn: General Manager 2401 Market Street Baytown, Texas 77520 Until BAWA is otherwise notified in writing.by BUYER,the address of BUYER is and shall remain as follows: Harris County Water Control and Improvement District No. 1 Attn: President 125 San Jacinto Avenue Highlands, Texas 77562 13.02 All written notices,statements,and payments required or permitted to be given under this Contract from one party to the other shall be deemed given by telefax or the deposit in a United States Postal Service mailbox or receptacle of certified or registered mail, with proper postage affixed thereto,addressed to the respective other party at the address set forth above or at such other address as the parties respectively shall designate by written notice. ARTICLE XIV MISCELLANEOUS PROVISIONS 14.01 This contract shall bind and benefit the respective parties and their legal successors, but shall not otherwise be assignable, in whole or in part,by either party without first obtaining the written consent of the other; provided, however, that BUYER shall have the right, without any consent of BAWA to pledge or otherwise assign BUYER's rights hereunder to the extent required by any mortgage, deed of trust or other similar agreement to which BUYER may be, or hereafter become a party;provided that,BUYER's successor or assignee,as the case maybe, is a responsible person or entity and shall(by operation of law or otherwise)expressly assume BUYER's obligations 12 hereunder; and provided,further,however,that no successor or assignee of BUYER shall be entitled to receive water or sell water to a third party under this Contract unless and until the City of Houston and the San Jacinto River Authority give their written consent to such assignment. 14.02 This Contract shall be for the sole and exclusive benefit of BAWA and BUYER and shall not be construed to confer any rights upon any third party, except as expressly provided in Article IX. BAWA shall never be subject to any liability in damages to any customer of BUYER for any failure to perform under this Contract. 14.03 This Contract shall be subject to all present and future valid laws, orders,rules and regulations of the United States of America and the State.of Texas and of any regulatory body having jurisdiction. 14.04 This instrument contains all the agreements made between the parties concerning the sale and delivery of water by BAWA to BUYER at the Point of Delivery set out in this Contract. 14.05 The construction,interpretation and performance of this Contract shall be governed by the laws of the State of Texas, and venue shall lie in Harris County, Texas. 14.06 All parties agree that should any provision of this Contract be determined to be invalid or unenforceable, such determination shall not affect any other term of this Contract,which shall continue in full force and effect. 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. 14.07 Each party has the full power and authority to enter into and perform this Contract, and the person signing this Contract on behalf of each party has been properly authorized and empowered to enter into this Contract. The persons executing this Contract hereby represent that they have authorization to sign on behalf of their respective entities. 14.08 The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Contract. IN WITNESS WHEREOF,the parties hereto have executed this contract as of the_day of , 2003, in multiple copies each of which shall be deemed to be an original, but all of which shall constitute but one and the same contract. BAYTOWN AREA WATER AUTHORITY ROBERT L. GILLETTE,President 13 ATTEST: i"--q17,A, PETER R. BUENZ, Secr HARRIS COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1 itt?tCe, W-11-4-21i Sign e ,'l fku, (/ /4&,Ai4 Printed Name// p,/L -d 2 Title STATE OF TEXAS § § COUNTY OF HARRIS § Before me, &id)Qrct S?W iId&IZ a, the undersigned not public, on this day personally appeared ,,/�f o ep I(f J o 66 h S in his/her capacity as eS.tri•evii- of Harris County Water Control and Improvement District No. 1, known to me proved to me on the oath of or proved to me through his current {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person} • (check one) to be the person whose name is subscribed to the foregoing instrument,and acknowledged to me that he executed that instrument for the purposes and consideration therein expressed. k Given under my hand and seal of office this 9�day of Sepfem.be r , 2003. \\\\� AA`iSr4k glib t9. G ieS7& � Qa pRY P(/' c�y9'.j Notary ..,o� e�i'; Public in and for the State of Texas My commission expires: d>.9� P`O ,,' 14 APPROVED TO CONFORMING TO REQUIREMENTS OF CONTRACT NO. 34739, SECTIONS 8.2 AND 8.3: ANTHONY HALL, City Attorney CITY OF HOUSTON • F:\Karen\Files\BAWA\Hams County Water Control and Improvement District\WaterSupp};ContractRevisedClean.doc 15 • RPD-ro9 i T WG tar, " °� EL .� I 1 j'• / ■ w IaN1 1 �� 7 , i i1' • SIN / • f l I•I•. E 0'I e..w n •`.: `�� WELL—I • I.—HARRIS COUNTY W.C.I.D. #�• -- ._ ["■emrft_ DISTRICTBOUNDARY It " xDVPER " 11.4 i 1 NI.NL■NOS I 1 Li01 i K ! II JI.MN SC-CX1.; -.,,,-.I. os. I 1 .w1 ro. x EN„stir. " ,� r 1 EL w lb 1 I c{ falp ��II III HHRFIS COUNTY W.C.I.D.#I •I■•; v__ !IC IMI ii[ill of Awnilla M DISTRICT BOUNDARY IIII e:w..[ I- HII. " illi ET t 10 j.......... 1 ' ELEVATED STORAGE TANK \•, \ I �' •71 r•w n 51 .`tt e�.ELEVATE 1 1 ■ B pa*d M..1 1 ' 3 Pa.*t44U.,.. I HGw.GLD.Ncl SUP. C I00Z2. •nnf pro i rr' " "••1 Ot• is •mi W 4 I u �-i a rm. MITE'S LAKE \ I I ,`� 1 -BMW 1 I o ��l I 1 -" ■� :-.!mn ra.T St l' 1.1•n I • HARRIS COUNTY WC & ID NO.1 • IJa 1 i y ■ I WATERLINE LAYOUT t', �pj L HARRIS COUNTY W-C.I.U. 11I DISTRICT BOUNDARY NAYNF.SNIT R�xlnT®,tNc. oYrf.p \\ / MIS-SCHOOL RD. �� I ^ 11 T ftnt:r.m I"':*". er!-ar.eerl:.aVr-•rnT.enmlwl • • EXHIBIT "A" 4 w • �`'s ---� Y ra Paxtt \ ... ^ -� V' I 5 3I:i 1 Y! I IPZ ------ -1—.---,...— SN=/ I :I • I. + WELI. d:1? ..,1. i 11I.-HARRIS COUNTY W.C.I.D. N1" --RSnm' „� a Y c.xm n I` DISTRICT BOUNDARY' .� 3 a II 11 Y NWRM a a 1l r ` 1 0 yn.ngc . $+ I a 4 1 iLCM.SCHOOL a s i p� I 1 I !1� 7 �� ly .f" 1 H4HLANOS , lL � F Y- i a V 1 I A HIGN SC•1:101.; I 1 ..PARK1. a^ `I 3 cpµp y ° 1 Iu4MLANosp 1 a a aru[R. + I Y „ nLMySoiH?DL • „ I 1 Yr_ �_ 1 iaxu.a 1`_ . .. 1 ' !: tint• �-i�©t ' ' Y .. ...� E E 11 I HARRIS COUNTY W.C.I.p. #1• a �r. L5.11 :T Yr j aurrn•• . 4 i DIS'RICT BOUNDARY c sX i + it y.•" ELEVATED STORAGE TANK 1 .� II rat tw L� (S� R -a .._.0 IOW NRMA 1klo 1 w' t. a M C 7 B� y PY.N OF a^1troy, I /.,,,,t ,H.CWCI.D.Mal 51.P• I �,__ w.w s.1!!h,4x Mall Ku 31 II 133k 1 --. II01ld\ • YIiITE�S LAKE\... `' I I I • o(1.a. 1 \ `41 I ..PPP ,.�/ __\ LL p@R Gçç I MIT,r I HARRIS COUNTY WC & ID NO.1 • I1 / WATERLINE LAYOUT )\ HARRIS COUNIY W.C.I.U. B1I �• / g f ��DISTRICT BOUNDARY . w WAYNF.9NITH k ASSOCIATlS.INC. 1` CLUS-50HODL ND. �� �11.a: I IKN1:1-..0 I AR..0/1-W. j.„Yi.:.F. EXHIBIT "B"