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Ordinance No. 14,758ORDINANCE NO. 14,758 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, APPROVING THE SECOND AMENDMENT TO THE WATER SUPPLY CONTRACT -- TREATED WATER BETWEEN THE BAYTOWN AREA WATER AUTHORITY AND HARRIS COUNTY FRESH WATER SUPPLY DISTRICT NO. 27; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, the Baytown Area Water Authority's enabling legislation requires that the City Council approve the contract before Baytown Area Water Authority ("BAWA") enters into the same; and WHEREAS, on June 16, 2021, the Board of Directors of BAWA met and approved the Second Amendment to the Water Supply Contract -- Treated Water between the Baytown Area Water Authority and Harris County Fresh Water Supply District No. 27; and WHEREAS, the City of Baytown desires to approve such amendment; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the recitals set forth hereinabove are hereby found to be true and correct and are hereby adopted. Section 2: That the City Council of the City of Baytown, Texas, hereby approves the Second Amendment to the Water Supply Contract -- Treated Water between the Baytown Area Water Authority and Harris County Fresh Water Supply District No. 27. Such amendment is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. Section 3: 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 241h day of June, 2021. 4 �0� 14 &. kr4M if HEATHER BETANCOURTH, Mayor Pro Tem S7��' ) 10)( � -- KAREN L. HORNER, City Attorney RAKaren Homer\DocumentsTiles.City Council Ordinances\2021Uune 24\Approving2ndAmendment2WaterSupplyContract2withHCFWSD#27.doc MMOWTV SECOND AMENDMENT TO TFIE WATER SUPPLY CONTRACT -- TREATED WATER BETWEEN BAYTOWN AREA WATER AUTHORITY AND HARRIS COUNTY FRESH WATER SUPPLY DISTRICT NO. 27 STATE OF TEXAS § COUNTY OF HARRIS § This Second Amendment (the "Second Amendment") to that certain Water Supply Contract -- Treated Water between the Baytown Area Water Authority and Harris County Fresh Water Supply District No. 27, dated March 8, 2007, is made by and between the same parties on the date hereinafter last specified. WITNESSETH: WHEREAS, the Baytown Area Water Authority ("BAWA") and Harris County Fresh Water Supply District No. 27 ("DISTRICT") did enter into a Water Supply Contract — Treated Water on March 8, 2007 (the "Agreement"); and WHEREAS, on January 27, 2017, the DISTRICT and BAWA amended the Agreement in order to comply with certain requirements of the Texas Commission on Environmental Quality (the "First Amendment"); and WHEREAS, the DISTRICT has requested to increase the reserved capacity from 0.5384 MGD to 0.6624 MGD average daily flow; and WHEREAS, BAWA has considered the request and finds that the increase is reasonable and within its ability to provide; NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the parties hereto do hereby mutually agree as follows: 1. Definitions. Unless a different meaning clearly appears from the context, words and phrases as used in this Second Amendment shall have the same meanings as in the First Amendment and the Agreement. 2. Amendment. Article 1I, "Sale and Delivery of Water," Section 2.01 of the Agreement is hereby amended to read as follows: 2.01 BAWA and the DISTRICT expressly agree that the sales and delivery of water shall be subject to the following: Second Amendment Page 1 a. All services to be provided by BAWA herein shall be expressly subject to the payment of the applicable fees and costs, without credit and/or reimbursement. 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 DISTRICT, the DISTRICT's water requirements of treated water at the Points of Delivery at daily rates of delivery; and DISTRICT agrees to purchase from BAWA all of DISTRICT's treated water requirements for resale at the Points of Delivery during the term of this Contract for water services to be supplied in the Service Area, subject to the limitations expressed hereinabove. 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 Service Area. The maximum amount of total treated water that BAWA shall be obligated to provide shall be 400 gpd/ equivalent single-family connection ("ESFC" ). It is stipulated that the DISTRICT's total treated water requirements shall not exceed 400 gpd multiplied by: the number of ESFCs necessary to serve any undeveloped property included within the Service Area for which a preliminary plat has been approved by the City of Baytown, plus 2. the number of ESFCs necessary to serve property previously developed or currently under development within the Service Area; provided, however, that in no event shall the DISTRICT's total treated water requirements exceed 0.6624 MGD. In the event an approved preliminary plat expires, the DISTRICT's total treated water requirements shall be reduced by the number of ESFCs associated with the expired preliminary plat. It is expressly agreed to and understood that BAWA shall not be obligated to deliver to DISTRICT treated water in excess of the Contract Quantity which shall be the monthly average per day of 0.6624 MGD. b. It is expressly understood and agreed that, commencing on July 1, 2023, the quantities calculated in accordance with Section 2.0l.a and the capacities reserved in Section 2.0l.c shall be adjusted annually to a quantity that equals one hundred ten percent (1 10%) of the average number of MGD used in the Service Area in the previous twelve (12) month period; provided that the actual quantity does not exceed the quantity as calculated in accordance with Section 2.0La. and as specified therein. C. BAWA, upon receipt of all applicable fees and costs, BAWA shall endeavor to reserve for the exclusive benefit of the DISTRICT the capacity in its water supply facilities sufficient to supply and treat the quantities established in Section 2.01.a of this Agreement and as adjusted in Section 2.0l.b. However, the DISTRICT shall not be guaranteed any specific Second Amendment, Page 2 quantity or pressure of water for the services to be provided herein by BAWA if BAWA's water supply is limited or when the DISTRICT's equipment may become inoperative due 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. The DISTRICT shall not permit any person or entity located outside the Service Area to connect to the DISTRICT's System during the tern of this Agreement without the express prior written consent of BAWA. Failure to comply with this provision shall constitute a default. 3. Generally. 3.01 Interpretation. This Second Amendment has been jointly negotiated by the parties hereunder and shall not be construed against a party hereunder because that party may have assumed primary responsibility for the drafting of this Amendment. 3.02 Captions. Captions contained in this Second Amendment are for reference only and, therefore, have no effect in construing this Second Amendment. The captions are not restrictive of the subject matter of any section in this Second Amendment. 3.03 No Waiver. By this Second Amendment, BAWA does not consent to litigation or suit, and BAWA hereby expressly revokes any consent to litigation that it may have granted by the terms of this Second Amendment, the First Amendment, the Agreement or any other contract or agreement or addenda, any charter, or applicable state law. Nothing contained herein shall be constructed so as to limit or waive BAWA's sovereign immunity. 3.04 Construction. The provisions of this Second Amendment and the provisions of the First Amendment and the Agreement should be read together and construed as one agreement. In the event of any conflict between a provision of the Agreement, the First Amendment, and the Second Amendment, the Second Amendment shall control. IN WITNESS WHEREOF, the parties hereto have executed this Second 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 , 2021, the date of signature by the General Manager of BAWA. BAYTOWN AREA WATER AUTHORITY RICHARD L. DAVIS, General Manager ATTEST: ANGELA JACKSON, Interim Assistant Secretary Second Amendment, Page 3 APPROVED AS TO FORM: KAREN L. HORNER, General Counsel HARRIS COUNTY FRES A R SUP P Y DISTRICT NO.27 -m Printed Name Title ATTEST: (Signature) (Printed Name) T (Title) APPROVED AS TO FORM: (Signature) (Printed Name) (Title) R•\Karen liomer\Documents\Ftles\nAWA\Hams County Fresh Water Supply District N27\SECOND AhIENDMENT 4 HCFWSD NO.27..docx 5 Second Amendment, Page 4