R2008-116 2008-08-18RESOLUTION NO. R2008-116
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PEARLAND, TEXAS, CONSENTING TO A GROUNDWATER
REDUCTION AGREEMENT BETWEEN THE FORT BEND
FRESHWATER SUPPLY DISTRICT No.1 AND THE NORTH FORT
BEND WATER AUTHORITY.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS:
Section 1. That the City Council hereby consents to the Groundwater
Agreement, attached hereto as Exhibit "A", between the Fort Bend Freshwater Supply
District N0.1 and the North Fort Bend Water Authority.
PASSED, APPROVED, AND ADOPTED this 18~h day of August, A.D., 2008.
TOM REID
MAYOR
ATTEST
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APPROVED AS TO FORM:
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DARRIN M. COKER
CITY ATTORNEY
Exhibit "A"
Resolution No. 82008-116
GROUNDWATER REDUCTION PLAN PARTICIPATION AGREEMENT
This GROUNDWATER REDUCTION PLAN PARTICIPATION AGREEMENT
(the "Agreement") is entered into as of the 1st day of July, 2008 ("Effective Date"), b}'
the NORTH FORT BEND WATER AUTHORITY (the "Authority"), a political
subdivision of the State of Texas, created by special act of the Texas Legislature and
Chapter 88"l3 of the Special District Local Laws Code, as amended, (the "Code"), and
Fort Bend Count}' Fresh Water Supply District No. 1, a political subdivision of the State
of Texas (the "Participant").
RECITALS
Regairertrertts for Groundzunter Rettuctiott Platt
The Fort Bend Subsidence District (the "Subsidence District") cvas created by the
Texas Legislahue to reduce subsidence by regulating the withdrawal of groundwater
within Fort Bend County. The Subsidence District adopted its District Regulatory Plan
in to control groundwater withdrawal rights in 2003, which plan may be amended from
time to time (the "Regulatory Plan').
The Participant owns and operates permitted water wells located within
Regulatory Area A ("Area A") of the Regulatory Plan. Pursuant to the Regulatory Plan,
certain water well permit holders in Area A (individually or as part of a group of water
well permit holders) must achieve orderly reductions in total groundwater use and
convert to alternative water supplies by certain dates, as defined in the Regulatory Plan.
Pursuant to the Regulatory Plan, certain water well permit holders in Area A must
convert (or be part of a group of water well permit holders that converts) to alternative
water supplies (e.g., surface water), instead of groundwater supplies, by certain dates,
as defined in the Regulatory Plan. A groundwater reduction plan ("GRP") showing
ho~v these alternative water conversion dates will be met by affected water well
permittees in Area A must be certified by the Subsidence District prior to the applicable
Subsidence District permit start date in 2008.
The AuthorihJ
The Authority vas created by the Texas Legislature Eor the purpose, among
others, of developing a regional GRP for the areas within its boundaries. The Authority
includes territory in northern Fort Bend County that is within Area A. The Authority
does not include within its boundaries any land upon which the Participant's water
wells are or will be located or which is currently served by or expected to be served by
the Participant's water wells (the "Land"), as more fully identified below.
The Authority is developing a regional groundwater reduction plan (the
"Authority GRP") on behalf of its members to meet the Regulatory Plan requirements.
The Code authorizes the Authority to contract with entities located outside the
Authority's boundaries to include such entities in the Authority GRP.
Tiie Participaxt
In order to provide water supply for its needs from groundwater sources, the
Participant owns and operates the water well(s) listed on Exhibit "A" attached hereto
and made a part hereof for all purposes, which wells are subject to Subsidence District
groundwater reduction requirements or mandates (the "Subject Wells"). (The term
"Subject Wells' includes any wells constructed or acquired subsequent to the Effective
Date by the Participant to serve the Land which are subject to Subsidence District
groundwater reduction requirements or mandates.) To comply with Subsidence
District requirements or mandates, the Participant has determuted that it is in the
Participant's best interests to contract with the Authority to participate in the Authority
GRP, subject to the terms and conditions of this Agreement.
The Authority has determined that it is in the Authority's best interest to contract
with the Participant for its participation and to include the Participant in the Authority
GRP accordingly.
AGREEMENT
For and in consideration of the mutual promises, covenants, obligations, and
benefits in this Agreement, the Participant and the Authority agree as follows:
ARTICLE I.
AUTHORITY GROUNDWATER REDUCTION PLAN
Section 1.1: Authority GRP. The Authority is developing the Authority GRP on
behalf of certain water well permit holders within its boundaries to meet the Regulatory
Plan requirements. The Authority will Eile with the Subsidence District the Authority
GRP, which will include details of the steps necessary for achieving the groundwater
reduction requirements outlined for Area A by the Regulatory Plan. The Authority
GRP may be amended by the Authority in its sole discretion frorn time to time;
provided, however, that such modifications or amendments shall not be inconsistent
with the terms and conditions of this Agreement. Unless required by the Subsidence
District, the Authority may modify or amend the Authority GRP without the need for
approval from the Subsidence District. The parties acknowledge and agree that the
Authority and the Authority GRP may exceed the minimum requirements of the
Subsidence District's groundv,~ater reduction requirements and the Regulatory Plan by
implementing measures determined appropriate by the Authority in its sole discretion,
including, without limitation, measures to convert to surface water: (i) prior to the
date(s) required by the Subsidence District, and/or (ii) in amount(s) greater than the
amounts required by the Subsidence District.
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Section 1.2: Participant Inclusion. (a) Subject to the terms of this Agreement
(including, without limitation, Sections 1.2(b) and (c)), the Authority hereby agrees to
include the Participant in the Authority GRP, and to take into account the pumpage
from Subject Wells owned by the Participant that are currently or hereafter located on
the land served by the Participant up to, but not in excess of, the quantity set forth in
Section 1.2(b) below. Subject to any rules and requirements of the Authority applicable
to a similarly situated user within the boundaries of the Authority, and as between the
Authority and the Participant, the Participant may construct an unlimited number of
Subject Wells to serve the Land. Notwithstanding the previous sentence, unless the
Authority in its sole discretion consents in writing, groundwater from Subject Wells
owned by the Participant may be used to provide water to area(s) outside of the Land
only on the following conditions: (i) the water is needed for the area outside of the
Land because of emergency conditions existing in such area; and (ii) the water will be
provided to the area(s) for no more than 60 consecutive or inconsecutive days during
any calendar year. The Participant, and not the Authority, shall be responsible for all
costs to obtain groundwater (including, without limitation, engineering, construction,
repair, maintenance, and financing costs; water well, water plant and water line
capacity costs; and realty interest costs). The Participant agrees to cooperate fully with
the Authority, to promptly provide such information and to take such steps as are
necessary or convenient for the Authority to include and maintain the current and
Euture Subject Wells in the Authority GRP and to obtain all necessary Subsidence
District approvals.
(b) The Participant anticipate that they collectively will not pump more than
[xxxx] gallons during any 12-month period covered by any Subsidence District Subject
Well permit year ("Permit Year') during the term of this Agreement. Without the
Authority's written consent, as determined by the sole discretion of the Authority, the
Authority shall not be required to include more than [xxxx] gallons of Subsidence
District Subject Well permit(s) ("Subject Well Permits") for the Subject Wells into the
Authorit}' GRP; provided, however, pursuant to Section 1.2(c), below, the Well Owner
Parties shall be obligated to allow the Authority the option to include any additional
Subject Well Permit amounts into the Authority GRP. If, on any date, the Subsidence
District issues or amends a Subject Well Permit(s) such that the total amount allowed to
be pumped by existing or future Subject Wells in any Permit Year ("Aggregate
Permitted Amount") exceeds [xxxx] gallons ("Limit Date'), then the Authority, in its
sole discretion, may: (i) refuse to include into the Authority GRP the portion(s) of the
pumpage associated with the Subject Well Permit(s) (or amendments to Subject Well
Permit(s)) of the particular Subject Well(s) that caused the Aggregate Permitted Amount
to exceed [xxxx] gallons in any Permit Year; and/or (ii) refuse to include into the
Authority GRP the pumpage associated with any Subject Well Permit amendments
issued by the Subsidence District after the Limit Date that would increase the amount of
groundwater the Participant is allowed to pump; and/or (iii) refuse to include into the
Authority GRP the pumpage associated with any new Subject Well Permits issued by
the Subsidence District after the Limit Date.
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(c) Subject to the remaining provisions of this Section 1.2(c), if the Participant is
precluded (or expects to be prechlded) from including some OC all of its groundwater
pumpage into the Authority GRP pursuant to the last sentence of Section 1.2(b), above,
the Participant may obtain water from a source other than the Subject Wells if the
Participant first makes a written request to the Authority for the Authority to include
the Participant's additional pumpage into the Authority GRP and such request is
denied in writing by the Authority. The Participant shall not make a request to the
Authority pursuant to the preceding sentence until after the date that the Aggregate
Permitted Amount exceeds [xxxx] gallons, and any request issued before such date shall
be void and of no effect. Each such request shall be grlnted or denied in writing by the
Authority (in its sole discretion) within 180 days of receipt. In the event a Participant is
permitted to obtain water from a source other than the Subject Wells pursuant to this
Sections 1.2(c), then: (i) all of the costs to obtain such water (including, without
limitation, engineering, construction, repair, maintenance, and financing costs; water
plant and water line capacity costs; and realty interest costs) shall be the sole
responsibility of the Participant; (ii) the Authority shall have no responsibility
whatsoever to obtain or secure any such water For the Participant; and (iii) the Import
Fees established in Section 2.3, below, shall not apply to water so obtained if, and so
long as, the Participant during each Permit Year pumps the maximum amount of
groundwater from its Subject Well(s) that it is able to pump pursuant to the Authority
GRP. The provisions of Sections 1.2(b) and 1.2(c) shall apply notwithstanding any other
provision of this Agreement.
Section 1.3: GRP Fee. (a) The Participant shall pay to the Authority the water
well pumpage fee (the "GRP Fee') established by the Authority from time to time and
charged by the Authority to similarly situated groundwater well owners within the
Authority's boundaries ("Similarly Situated Authority Well Owners"). The Participant
shall pay the GRP Fee for all water pumped from all Subject Wells owned by the
Participant.
(b) The Participant shall be obligated to pay the GRP Fee beginning on July 1,
2008, in the same time and manner as other Similarly Situated Authority Well Owners,
and thereafter pursuant to the Authority's rules and regulations. As of July 1, 2008, the
GRP Fee is $0.30 per 1,000 gallons of groundwater pumped. The Participant
acknowledges and agrees that the GRP Fee will be amended by the Authority in its sole
discretion from time to time. The Authority agrees that the Participant shall always be
charged the same GRP Fee that the Authority charges a Similarly Situated Authority
Well Owner, without any premium or discount. The Participant, like all Similarly
Sihlated Authority Well Owners, has the obligation to monitor its total water usage and
type of usage and report and pay for such usage in accordance with the Authority's
rules and regulations.
(c) If ownership of a Subject Well changes, both the Participant and
subsequent owners of the Participant's Subject Wells shall be liable to the Authority,
jointly and severally, for all Eees or user fees owed to the Authority, and any related
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penalties and interest, for water pumped from the Participant's Subject Wells before the
change in ownership.
Section 1.4: Equalization Fee. The Participant acknowledges that since October
1, 2005, well owners within the Authority have been required to pay a GRP Fee per
1,000 gallons of water pumped from their wells to the Authority. The Participant
further acknowledges that from October 1, 2005 through December 31, 2007 the GRP
Fee imposed by the Authority was $0.19 per 1,000 gallons and that from January 1, 2008
through June 30, 2008 the GRP fee imposed by the Authority was $0.30 per 1,00 gallons.
No later than August 31, 2008, the Participant shall (i) calculate the number of gallons of
groundwater pumped from the Subject Wells from October 1, 2005 through June 30,
2008 (the "Prior Pumpage Amount") and (ii) pay the Authority $0.19 per 1,000 gallons
of the Prior Pumpage Amount pumped between October 1, 2005 and December 31,
2007, and $0.30 per 1,000 gallons of the Prior Pumpage Amount pumped between
January 1, 2008 and June 30, 2008 ("Equalization Fee').
Section 1.5: Well Permitting. In connection with the Authority GRP, the
Authority may require the Participant's Subsidence District Well permit to be: (i) co-
permitted in the name of the Authority and the Participant, (ii) permitted only in the
Participant's name, or (iii) perntted only in the Authority's name. Each Particpant
agrees to cooperate fully tivith the Authority, to promptly provide such information, and
to promptly take such steps as are necessary or convenient in connection with the
Subsidence District permitting process.
ARTICLE II.
SURFACE WATER CONVERSION
Section 2.1: Conversion. (a) The Authority and the Participant have
determined that the Authority's surface water supply source will likely not need to be
extended to Land. EXCEPT AS PROVIDED IN SECTION 2.1(b), BELOW, THE
AUTHORITY SHALL NEVER BE REQUIRED, IN WHOLE OR IN PART, TO PROVIDE
WATER OF ANY KIND TO THE PARTICIPANT (OR TO ANY PORTION OF THE
LAND SERVED BY THE PARTICIPANT) OR TO CONSTRUCT OR ACQUIRE ANY
LINES OR FACILITIES TO SERVE WATER TO THE PARTICIPANT (OR TO ANY
PORTION OF THE LAND SERVED BY THE PARTICIPANT).
(b) If the Authority (in the Authority's sole discretion) determines that the
Authority GRP would benefit by any portion of the Land utilizing an surface water
supply, the Authority will have the right (but not the obligation) to compel the
Participant to wholly or partially convert to a surface water supply and to reduce or
eliminate the Participant's withdrawal of groundwater, all as determined by the
Authority in accordance with the Authority GRP. If the Authority (in the Authority's
sole discretion) deternnes that any portion of the Land must utilize a surface water
supply in order for the Authority GRP to be in compliance with the Subsidence
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District's groundwater reduction requirements, then the Authority will compel the
Participant to wholly or partially convert to a surface water supply and to reduce or
eliminate the Participant's withdrawal of groundwater, all as determined by the
Authority in accordance with the Authority GRP. The Authority nnay (in the
Authority's sole discretion) require use of surface water by the Participant in varying
percentages at varying dates, all as determined by the Authorit}' in accordance with the
Authority GRP. if the Authority compels Participant to wholly or partially convert to a
surface water supply, (i) the Authority shall be responsible for contracting, in its own
name, for a surface water supply to meet the Participant's surface water amount
mandated by the Authority, (ii) the Authority shall pay all costs required to secure an}'
necessary realty interests to acquire and construct the facilities necessary to bring
surface water supply line(s) to the boundary of the Participant's water plant site(s) and
to install a water meter and vault (the "Meter') at a location determined by the
Authority, (iii) the Authority will ocvn, operate, and maintain such surface water supply
line(s) and the Meter at its cost; (iv) the Participant shall be subject to the same terms of
service (and limitations of service) that the Authority utilizes in providing surface water
service to similarly situated surface water users located within the Authority's
boundaries ("Similarly Situated Authority Surface Water Users'); and (v) in providing
surface water service, the Authority may provide surface water and/or groundwater. If
the Authority compels the Participant to wholly or partially convert to surface water,
the Authority may require the Participant, in the same manner as other Similarly
Situated Authority Surface Water Users, to pay for and to cause the prompt installation
of disinfection facilities at the Participant's water plant(s) and to pay for and to cause
the prompt construction of a segment of water line fronn its water plant(s) to the
Authority's line located on the water plant site(s). Notwithstanding any other provision
of this Agreement, unless agreed otherwise in writing by the Authority, any
undertaking by the Authority to provide water to the Participant shall be in its capacity
as a wholesale provider only, and regardless of the nature of the use or the number of
users supplied by the Participant with water provided by the Authority hereunder, the
Participant shall be deemed to be and shall assume all duties and responsibilities as the
retail provider of water.
Section 2.2: Surface Water Fee. (a) if the Authority (in its sole discretion)
requires a the Participant to convert wholly or partially to a surface water supply, the
Participant shall pay to the Authority the surface water fee or rate (the "Surface Water
Fee') established by the Authority from time to time, and charged by the Authority for
surface water and/or groundwater supplied to Similarly Situated Authority Surface
Water Users for all surface water and/or groundwater received by the Participant fronn
tlne Authority. The Participant shall pay the Surface Water Fee in the same time and
manner as Similarly Situated Authority Surface Water Users. The Participant
acknowledges and agrees that the Surface Water Fee will be amended b}' the Authority
in its sole discretion from time to time. The Authority agrees that if it (in its sole
discretion) provides surface water to the Participant, then the Participant shall always
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be charged the same Surface Water Fee that the Authority charges a Similarly Situated
Authority Surface Water User, without any premium or discount. If Participant is only
partially converted to surface water, the Participant shall pay the Surface Water Fee Eor
the surface water received by the Participant and the GRP Fee for the groundGVater
pumped by the Participant from Subject Wells. The Participant, like Similarly Situated
Authority Surface Water Users, has the obligation to monitor its total water usage and
type of usage and report and pay for such usage u1 accordance with the Authority's
rules and regulations.
Section 2.3: Import Fees. (a) It is understood that the Authority will be
i rring substantial costs and issuing significant amounts of bones in order to acquire
surface water capacity and facilities to accommodate the Participant's pumpage into the
Authority GRP, and that the Authority will be relying on revenues received under this
Agreement to pay for same. Accordingly, the only source of 4vater that shall ever be
utilized to provide water to the Land, or any portion of the Land, shall be from: (i) the
Subject Wells; (ii) effluent generated from wastewater treatment plant(s) that serve the
Land (or any portion of the Land) and do not serve airy land other than the Land; (iii)
surface water provided by the Authority, if, in the Authority's sole discretion, the
Authority decides to provide surface water to any portion of the Land; (iv) diffused
surface water that is impounded and stored on the Land and is not purchased from an
entity outside of the Land; (v) rain water capture or harvesting systems or devices
within the Land; or (vi) other water reuse or conservation means employed within the
Land.
(b) Section 8813.103(h) of the Code allows the Authority to charge import Eees
for the importation of water into the Authority's boundaries. Although the Land is
located outside of the Authority's boundaries, the Participant will nevertheless be
subject to the imposition of import Fees, as provided and defined below. If the
Participant ever obtains (or participates in the obtaining of) water from any source other
than those sources identified in the second sentence of Section 2.3(a) to serve all or any
portion of the Land (the "Imported Water"), then Participant must immediately notify
the Authority in writing and must pay to the Authority monthly the follo~vulg import
fees ("Import Fees"): (i) the then-current GRP Fee applied on all Imported Water, if the
Authority is not then providing surface water to the Participant; and (ii) the then-
current Surface Water Fee applied on all Imported Water, if the Authority is (at the
Authority's sole discretion) then providing surface water to the Participant. The Import
Fees are due and payable to the Authority monthly, even if the Participant also pays
another entity for the Imported Water and even though the Authority is not then
providing an}' water to the Participant. Notwithstanding any provision of this Section,
the Participant shall not be required to pay Import Fees (i) on water obtained from
sources located outside the Land under the circumstances described in Section 1.2(c) of
this Agreement; or (ii) on Imported Water that it receives during a period not to exceed
60 consecutive or inconsecutive days during any calendar year if, and only if, the
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Participant receives the Imported Water due to emergency conditions within the
portion of the Land served by the Participant.
ARTICLE III.
MISCELLANEOUS
Section 3.1: Contract Members/No Annexation. The Participant shall be
considered a "Contract Member' of the Authority, by virtue of this Agreement. The
Participant acknowledges and agrees that, as a Contract Member, it is not within the
Authority's boundaries, is not in any Authority director precinct, and has no right to
vote for any director of the Authority's Board of Directors or any other Authority
appointments or elections at any time nocv or in the future. Nothing in this Agreement
is intended, or shall be construed, to obligate the Authority to a~ulex any of the Land
into the boundaries of the Authority.
Section 3.2: Rules. To the extent not contradicted by the terms and conditions of
this Agreement, the Participant agrees to be subject to all the Authority's rules,
regulations, requirements, fees, charges, and penalties as set forth from time to time in
the Authority's rules, orders, resolutions, and the Authority GRP on the same basis and
to the same extent as similarly situated users and water well owners within the
Authority's boundaries.
Section 3.3: Term. Unless sooner terminated by written mutual agreement of
the parties, by automatic termination as described in Section 1.4, or by the Authority
pursuant to the terms of this Section 3.3, this Agreement shall continue in force and
effect for 40 years after the Effective Date; provided, however, that after such 40 years
this Agreement shall automatically renew for successive 5 year periods, unless either
party gives the other party at least 180 days prior written notice of its intent to terminate
the Agreement. If any funds due from the Participant to the Authority are more than 60
days late, the Authority may send notice to the Participant of such delinquency. If such
late funds are not paid to the Authority within 60 days of the date of such delinquency
notice, the Authority may, in addition to any other legal or equitable remedies available
to the Authority, terminate this Agreement.
Section 3.4: Easements. In connection with the installation, maintenance, and
repair of an alternate water supply line to the boundary of the Participant's water plant
site(s), the Participant agrees, if requested in writing by the Authority, to convey to the
Authority, in form and substance acceptable to the Authority, an easement over any
land owned by the Participant for the installation, maintenance, and repair of the water
line or facilities and/or the Meter. If the Participant does not ow•n such land needed for
easement purposes, the Participant agrees to use its best efforts to secure the necessary
easements from the applicable landowner(s).
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Section 3.5: Assignability. This Agreement shall not be assignable in whole or
in part by the Participant without the express, written consent of the Authority, which
consent may be given or withheld in the sole discretion of the Authority. This
Agreement shall not be assignable in avhole or in part by the Authority without the
express, written consent of the Participant, which consent shall not be unreasonably
withheld. Notwithstanding an}' provision of this Agreement to the contrary, the
Authority shall not be required to include or maintain any Subject Wells of any
subsequent owner of a Subject Well into the Authority GRP, and the Authority may
deny a successor owner of a Subject Well the rights and privileges that Participant is
entitled to under this Agreement, unless and until such successor owner executes and
delivers to the Authority a joinder agreement substantially similar to Exhibit "B"
attached hereto and incorporated herein. All successor owners of one of a Subject Well
shall be required to execute and deliver to the Authority a document substantially
similar to Exhibit "B" prior to, or contemporaneously with, the successor owner's
conunencing ownership of a Subject Welt. Upon due execution and delivery of such
joinder agreement, and upon the successor owner becoming the owner of a Subject
Well, such successor owner shall automatically become a Participant under this
Agreement, without further action or approval by any other party, and shall thereupon
be bound by the terms anti provisions hereof and entitled to the rights and privileges of
a Participant hereunder.
Section 3.6: Notice. All notices provided or permitted to be given under this
Agreement must be in writing and may be served by depositutg same in the United
States mail, addressed to the party to be notified, postage prepaid or by delivering the
same in person to such party. Notice given by mail shall be effective three days after
deposit in the United States mail. Notice given in any other manner shall be effective
upon receipt at the address of the addressee. For purposes of notice, the addresses of
the parties shall be as follows:
If to the Authority: North Fort Bend Water Authority
c/o Allen Boon Humphries Robinson LLP
Attn: Joe B. Allen
3200 Southwest Freeway, Suite 2600
Houston, Texas 77027
If to the Participant: Fort Bend County Fresh Water Supply
District No. 1
c/o Coats, Rose, Yale, Ryman & Lee PC
3 East Greenway Plaza, Suite 2000
Houston, Texas 77046
Attn: Maria Parker
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The Authority may change its address for notice by giving three (3) days prior written
notice to the Participant or its successors or assigns that have provided an executed
copy of Exhibit B to the Authority. The Participant or its successors or assigns that have
provided an executed copy of Exhibit B to the Authority may change its address for
notice by giving three (3) days prior written notice to the Authority.
Section 3.7: Waiver. The failure of a party to insist upon strict performance of
any provision of this Agreement shall not constitute a waiver of, or estoppel against
asserting, the right to require that performance in the future, nor shall a waiver or
estoppel in any one instance constitute a waiver or estoppel with respect to a later
breach.
Section 3.8: Entire Agreement; Modification. This Agreement is the entire
agreement between the Authority and the Participant, and no modification hereof or
subsequent agreement relative to the subject matter hereof shall be binding on either
party unless reduced to writing and signed by the parties hereto.
Section 3.9: Parties in Interest. This Agreement shall be for the sole and
exclusive benefit of the Authority and the Participant, and shalt not be construed to
confer any benefit or right upon any other person (including, without limitation, any
users or entities within the Authority's boundaries, or any residents or landowners
served by the Participant).
Section 3.10: Severability. If any terms and conditions of this Agreement are
held by any court of competent jurisdiction to contravene, or to be invalid under, the
laces of any political body having jurisdiction over its subject matter, that contravention
or invalidity shall not invalidate the entire Agreement. Instead, this Agreement shall be
construed as if it did not contain the particular provision or provisions held to be
invalid, •the rights and obligations of the parties shall be construed and enforced
accordingly, and this Agreement shall remain in full force and effect, as construed.
Section 3.11: Governine Law. This Agreement shall constitute a contract
entered into under, and shall be construed, governed by, and enforced in accordance
with the substantive laws of the State of Texas.
Section 3.12: Remedies. It is not intended hereby to specify (and this
Agreement shall not be considered as specifying) an exclusive remedy for any default,
but all remedies, existing at la~v or in equity may be availed of by the Participant and by
the Authority and shall be cumulative. In addition to any and all remedies available at
law or in equity, the Authority and the Participant shall also have the remedy of
injunctive relief (including without limitation, specific performance) in the event any of
them fail to promptly and fully comply with any provision of this Agreement. The
Participant shall not have any right of action or remedy against the Authority for the
I`18172.dnc -10-
Authority's faihire to comply with the provisions of this Agreement unless the
Participant's rights hereunder are directly affected by such non-compliance.
Section 3.13: Force Maieure. [n the event either party is rendered unable,
wholly or in part, by force majeure to carr}~ out any of its obligations under this
Agreement, except the obligation to pay amounts owed or required to be paid pursuant
to the terms of this Agreement, then the obligations of such party, to the extent affected
by such 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 to the extent provided but for no longer period. As soon as
reasonably possible after the occurrence of the force majeure relied upon, the party
whose contractual obligations are affected thereby shall give notice and full particulars
of such force majeure to the other party. Such cause, as far as possible, shall be
remedied with all reasonable dispatch. The term "force majeure" as used in this
Agreement shall include without limitation of the generality thereof, acts of God,
strikes, lockouts, or other industrial disturbances, acts of the public enemy, orders of
any kind of the government of the United States or the State of Texas or any civil or
military authority, insurrections, riots, epidemics, landslides, lighMing, earthquakes,
fires, hurricanes, storms, floods, washouts, drought, arrests, restraint of government
and people, civil disturbances, explosions, breakage or accidents to machinery,
pipelines or canals, partial or entire failure of water supply or any other inabilities of
any party, whether similar to those herein enumerated or otherwise, which are not
within the control of the party claiming such inability and which such party could not
have avoided by the exercise of due diligence and care. It is understood and agreed
that the settlement of strikes and lockouts shall be entirely within the discretion of the
party having the difficulty, and that the above requirement that any force majeure shall
be remedied with all reasonable dispatch shall not require the settlement of strikes and
lockouts by acceding to the demands of opposing entities when such settlement is
unfavorable to it in the judgment of the party experiencing such difficulty.
Section 3.14: Re ug latory Agencies. This Agreement is subject to all rules,
regulations and laws which may be applicable of the United States, the State of Texas,
the Subsidence District, and any regulatory agency having jurisdiction.
Section 3.15: Approvals. Whenever this Agreement requires or pernuts
approvals or consents to be given by a party, the parties agree that the approval or
consent shall not be unreasonably withheld, conditioned, or delayed. The approval or
consent shall be effective without regard to whether given before or after the time
required in this Agreement.
Section 3.16: Inea'ess and Egress. During the term of this Agreement, the
Authority shall have the right of ingress and egress in, upon, under and over any land,
easements and rights-of-way of the Participant for the purpose of the Authority
iyarz.a~ -11-
performing any of its functions or responsibilities under this Agreement or under the
Authority's rules, orders, resolutions or the Authority GRP.
Section 3.17: Authorship. The parties agree that this Agreement shall not be
construed in Favor of or against either party on the basis that the party did or did not
author this Agreement.
Section 3.18: HeadinQS. The headings of each section of this Agreement are
inserted solely for convenience and shall never be given effect in construing the duties,
obligations, or liabilities of the parties hereto or any provisions hereof, or in ascertaining
the intent of either party, with respect to the provisions hereof.
Section 3.19: Lien. In addition to any and all remedies available to the
Authority at law or in equit}', fees, charges and user fees imposed by the Authority
pursuant to this Agreement, any related penalties and interest, anti collection expenses
and reasonable attorney's fees incurred b}' the Authority: (1) are a first and prior lien
against the Subject Wells to which the fees, charges or user fees apply; (2) are superior
to any other lien or claim, other than a lien or claim for county, school district, or
municipal ad valorem taxes; and (3) are the personal liability of and a charge against
the Participant. Alien under this section is effective from the date of the resolution or
order of the Authority's board of directors imposing the fee, charge or user Eee until the
Eee, charge or user fee is paid. The Authority may enforce the lien in the same manner
that a municipal utility district operating under Chapter 5~, Water Code, may enforce
an ad valorem tax lien against real property.
Section 3.20: Authority to Sign and Bind. The signatories below hereby
warrant that they have the requisite authority to bind the entity for which they are
signing. The Participant and the Authority warrant that they have the power to enter
into this Agreement and the transactions contemplated herein. The Participant and the
Authority also warrant that this Agreement atld the consummation of the transactions
contemplated Herein will not violate or constitute a breach of any contract or other
agreement to which either the Participant or the Authority are a party.
Section 3.21: Covenant Not to Attempt to Change Subsidence District
Regulations. Without the written consent of the Authority, the Participant shall not in
any way attempt to cause the Subsidence District to adopt or appl}' groundwater
reduction requirements or regulatory requirements relative to the land on which the
Subject Wells are located or the land served by the Subject Wells that differ Erom those
applicable to the land within the boundaries of the Authority.
[EXECUTION PAGES FOLLOW]
~esvz.a« -12-
EXECUTED AND AGREED TO AS OF THE DATE FIRST SET FORTH HEREIN.
FORT BEND COUNTY FRESH WATER
SUPPLY DISTRICT NO. 1
By:
ATTEST:
By:
Secretary, Board of Directors
(SEAL)
President, Board of Directors
THE STATE OF TEXAS §
COUNTY OF FORT BEND §
This instrument was acknowledged before me on this _ day of
.2008, by .President of the Board of Directors of
Fort Bencl County Fresh Water Supply District No. 1, a political subdivision of the State
of Texas, on behalf of said political subdivision.
ieanz.d~ -13-
EXECUTED .AND AGREED TO AS OF THE DATE FIRST SET FORTH HEREIN.
NORTH FORT BEND WATER AUTHORITY
By:
ATTEST:
By:
Secretary, Board of Directors
(SEAL)
President, Board of Directors
THE STATE OF TEXAS §
COUNTIES OF HARRIS AND FORT BEND §
Tlus instrument was acknowledged before me on this day of
.2008, by ,President of the Board of Directors of
the North Fort Bend Water Authority, a political subdivision of the State of Texas, on
behalf of said political subdivision.
Notary Public in and for the
State of Texas
~~ai;z.a«
EXHIBIT "A"
List of Participant's Current Subject Welts
t ea i ~za~~~
EXHIBIT "B"
Form of Joinder Agreement
I98 U2.dac
EXHIBIT "B"
The undersigned has acquired title by, through, or under [insert Participant name], a
[describe nature of Participant), (or by, through, or under a successor in title of
[participant name]) to a water we11 covered by that certain Groundwater Reduction
Plan Participation Agreement (the "GRP Agreement") between the North Fort Bend
Water Authority (the "Authority") and [insert participant nameJ, effective as of July 1,
2008. The undersigned hereby acknowledges and agrees that by the execution and
delivery to the Authority of this Joinder Agreement, it will become and be joined as a
party to, and upon becoming a Participant will be bound in the manner provided in the
GRP Agreement by each and all of the terms and obligations of, and will he entitled to
the rights and privileges provided in, the GRP Agreement. For purposes of receiving
notices pursuant to Section 3.6 of the GRP Agreement, the undersigned's name and
address are as follows:
[INSERT NAME AND ADDRESS]
[INSERT NAME, NOTARY BLOCK AND EXECUTION BLOCK OF ENTITY AND
SIGN AND NOTARIZE THIS EXHIBIT "B"]
IOA I'2.d« -I7-
11041,__
` �
T ` , CITY OF HOUS'IlO Bill White
Department of Public Works and Engineering Mayor
!iluUUllil. Michael S.Marcotte.-P.E.:DEE
Director
P.O. Box 1562
Houston.Texas 77251-1562
F.713 637 O464
wrnv_houstontx..00v
July 3, 2008
North.Fort Bend Water Authority
Attn: Melinda.Silva, P.E.
cio Brown&Gay Engineers, Inc.
1.0777 Westt eimer, Suite 400
Houston,Texas 77042
RE: Fort Bend County Freshwater Supply District#1's Request to Join
North Fort Bend Water Authority's Groundwater Reduction Plan
;Dear North Fort Bend Water Authority:
The Fort Bend County Freshwater Supply District#1 (FWSD#1) has requested that the City of Houston.,grant
them a permission to join the North Fort Bend Water Authority's Groundwater Reduction Plan in order for them
to meet the surface water conversion requirements mandated by the Fort Bend Subsidence District (FBSD).
The FWSD#1 is an unincorporated area of Fort Bend County:located along the FM 521 corridor south of the
• City of Houston. The area falls within the extraterritorial jurisdictions of both the City of Houston and Pearlar d.
We have determined that it is not economically.feasible to supply surface water to the area within the timeline
•required by the FBSD. The City of Houston therefore grants permission to allow FWSD#1 to enter into the
Groundwater Reduction Plan of the North Fort Bend Water Authority.
Please contact me at (713)837-0433 if there are any questions.
Sincerely,
Jun ang, P.E.
Senior Assistant Director
c: Andrew F. token
Ann-Sheridan
Council Members_ Toni Laurence Janis Johnson Anne Clutterbu : Wanda Adams Mike Sullivan 1.4.J.Khan.P.E. Pam Helm Adrian Garcia
James G.Rodriguez Peter Brown Sue Lovell Melissa Noriega Ronald C.Green Jolanda'Jo"Jones Controller.Annise 0.Parker,
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