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R2003-0086 07-23-03RESOLUTION NO. R2003-86 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO ENTER INTO AN EMERGENCY INTERCONNECT AGREEMENT WITH BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 25. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Emergency Interconnect Agreement by and between the City of Pearland and Brazoria County Municipal Utility District No. 25, a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved. Section 2. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest an Emergency Interconnect Agreement with Brazoria County Municipal Utility District No. 25. PASSED, APPROVED and ADOPTED this the 23rd day of A.D., 2003. ATTEST: APPROVED AS TO FORM: DARRIN M. COKER CITY ATTORNEY June TOM REID MAYOR Exhibit "A" Resolution No. R2003-86 EMERGENCY WATER SUPPLY AGREEMENT 5 EXHIBIT This Emergency Water Supply Agreement ("Agreement") is made and entered into as of Ir,t,lrbc 5 , 2003, by and between Brazoria County Municipal Utility District No. 25, a political subdivision of the State of Texas ("MUD 25"), and the City of Pearland, a political subdivision of the State of Texas (the "City") (collectively the "Parties"). RECITALS WHEREAS, the Parties desire to enter into this Agreement and to establish the terms and conditions pursuant to which emergency water supply will be provided and each represents that it has the authority to enter into this Agreement; and WHEREAS, at this time MUD 25 and the City believe it is in their best interests to enter into this Agreement. NOW, THEREFORE, AGREEMENT For and in consideration of the mutual promises, obligation and benefits herein set forth, MUD 25 and the City hereby Agreement and agree as follows: ARTICLE 1 Section 1.01: Definitions. "District" means MUD 25. "MUD 25 Water Distribution System" means the system for the distribution of Water operated by MUD 25 to serve its customers. "Emergency" means any mechanical or electrical failure or any act of nature that causes a loss of production or distribution capacity of a Party's Water Distribution System, which results in either Party being unable to produce or supply its customers with an minimal supply of Water or cope with a fire occurring in either Party's water supply system area. "City Water Distribution System" means the system for the distribution of Water operated by the City to serve its residential customers within its boundaries. The System connects to MUD 25's Water Distribution System at the Point of Connection. "Point of Connection" means the points at which the water supply system of the Parties connect as shown on the attached Exhibit A. "Temporary Period" means a period not to exceed 30 days. emergency interconnect brazoria 25 and pearland "Water" means potable water meeting the minimum requirements of the Texas Department of Health and its successors for human consumption and other domestic use. ARTICLE 2 Section 2.01: Construction. MUD 25 will construct water lines (including related two- way meter, valves, valve box and connection vault) to connect with the City's Water Distribution System, at the Point of Connection. Prior to construction, construction plans shall be submitted to the City for review and approval. City shall have the right to inspect and provide final approval of construction. Such approvals shall not be unreasonably withheld or delayed. Section 2.02: Title to Water. MUD 25 will have title to and possession and control of all Water on MUD 25's side of the Point of Connection and the City will have title to and possession and control of all Water on the City's side of the Point of Connection. Section 2.03: Operation and Maintenance. Each Party shall maintain its Water Distribution System in good condition and shall immediately repair any leaks or breaks in such system. MUD 25 shall operate, maintain and repair the Point of Connection. The City shall have the right to access and inspect the Point of Connection. Section 2.04: Customer Water Connections. MUD 25 shall ensure that all Water connections made by customers to the MUD 25 Water Distribution System are made in compliance with all applicable governmental regulations governing public Water systems. ARTICLE 3 Section 3.01: Normal Operations. During normal operating conditions of the Partys' water systems, Water will be prevented from flowing through the Point of Connection. Section 3.02: Emergency Supply. During an Emergency, the Party experiencing the Emergency may open the valve at the Point of Connection and be supplied Water by the other Party and must comply with the following procedure. The requesting Party must provide notice of the Emergency to the operator or public works director for the other Party, which notice includes a description of the nature of the Emergency and the expected duration. The Party experiencing the Emergency may continue to receive Water during the duration of the Emergency; provided, however, that neither Party shall be obligated to supply Water hereunder for longer than the Temporary Period, unless the parties agree to a longer period in writing, and neither Party shall be obligated to supply Water hereunder in such amounts or under such circumstances as will impair the supplying Party's ability to serve its own customers. The obligation of either Party to deliver Water to the other shall run only to the parties to this Agreement and shall in no event create any obligation to or duty toward the other Party or any customer of the Parties. Section 3.03: Simultaneous Emergencies. Neither Party shall be obligated to supply Water pursuant to this Agreement if an Emergency exists for that Party or if such supply would result in the inability to meet the minimal requirements of that Party. Consequently, during a emergency interconnect brazoria 25 and pearland 2 period of simultaneous Emergencies, neither Party shall be obligated to deliver Water to the other, but may do so pursuant to mutual Agreement. A unilateral decision by a Party that an Emergency exists or that the supply requested would result in the Party's inability to meet minimal requirements of that Party shall be presumed to have been made in good faith and shall be determinative of whether or not the Party is obligated to supply water pursuant to this Agreement. Section 3.04: Metering. The volume of any Water delivered under this Agreement shall be measured by the meter at the Point of Connection. Section 3.05: Payment. The volume of any Water delivered under this Agreement shall be reported promptly to the supplying Party by the operator or public works department for the consuming Party. The consuming Party shall pay for Water pursuant to this Agreement at the rate equal to the base rate per 1,000 gallons charged by the supplying Party for single family residential users within its jurisdiction. The consuming Party shall tender payment within 30 days of the date that the Point of Connection is closed. Bills shall become delinquent if not timely paid and shall bear interest at a rate of one percent per annum until paid. If a Party fails or refuses to pay for Water delivered hereunder for a period in excess of 60 days from the due date, the Party who has not been paid may refuse to supply additional Water through the Point of Connection until payment is made in full. ARTICLE 4 Section 4.01: Term and Conditions. The term of this Agreement shall commence on the effective date first written above, and shall run for a term of ten years, and shall automatically renew thereafter for successive five year terms, unless notice of non -renewal is provided to the other Party at least nine months prior to the commencement of a renewal term. Section 4.02: No Liability for General Obligations. Nothing in this Agreement shall have the effect of causing either Party to assume, guarantee or become in any way liable upon any bond, warrant, indebtedness or other obligation of the other Party or to undertake any obligation of such Party or the inhabitants or customers of such Party. Section 4.03: Remedies. Upon breach of any term of this Agreement by either Party, the non -breaching Party shall have the right to terminate service, to terminate this Agreement and to any other remedies at law. Section 4.04: Force Majeure. If any Party is rendered unable, wholly or in part, by force majeure to carry out any of its obligations hereunder, other than the payment of money, 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. Such cause, as far as possible, shall be remedied with reasonable diligence. The term "force majeure" as used herein shall include, but not be limited to, acts of God, acts of public enemy, orders of any kind of the United States or State government (including any agencies, departments or branches thereof), insurrections, riots, epidemics, lightning, earthquakes, fires, hurricanes, emergency interconnect brazoria 25 and pearland 3 storms, floods, washouts, droughts, arrests or any other acts not within the control of the Party claiming such inability and which such Party could not have avoided by the exercise of diligence and care. Section 4.05: Entire Agreement. This Agreement, together with such descriptions, terms, and conditions as may be included in the recitals and Exhibit A, contains the entire Agreement between the parties relating to the rights herein granted and the obligations herein assumed. There have been and are no Agreements, covenants, representations or warranties between the parties other than those expressly stated or provided for herein. Section 4.06: Modification. No modifications concerning this instrument shall be of any force or effect unless reduced to writing and signed by both parties hereto. Section 4.07: No Additional Waiver Implied. No waiver or waivers of any breach or default by either Party hereto of any term, covenant, condition or liability hereunder, or performance by the other Party of any duty or obligation hereunder, shall be deemed a waiver thereof in the future, nor shall any such waiver or waivers be deemed or construed to be a waiver of subsequent breaches or default of any kind, character or description, under any circumstances. Section 4.08: Notice to Parties. Any notice required to be given under this Agreement shall be given by depositing the same in the United States mail, postpaid, registered or certified, and addressed to the Party to be notified, with return receipt requested. Notice given in any other manner shall be effective only if and when received by the Party to be notified. Unless changed in writing and delivered to the other Party as described herein, the addresses of the parties are: To MUD 25: Brazoria County Municipal Utility District No. 25 c/o Vinson & Elkins L.L.P. 2300 First City Tower 1001 Fannin Houston, Texas 77002-6760 Attention: James A. Boone Fax: 713-615-5523 To the MUD 25 Operator: AquaSource Houston, Texas To the City: City of Pearland Public Works Department 3519 Liberty Drive emergency interconnect brazoria 25 and pearland 4 Pearland, TX 77581 Section 4.08: Further Assurances. In connection with this Agreement, as well as all transactions contemplated by this Agreement, each Party agrees to take all actions and execute (and acknowledge, if requested) and deliver all documents and instruments as may be necessary or appropriate to effectuate, perform and fully carry out the purposes, intent, terms, conditions and provisions of this Agreement and the transactions contemplated herein. Section 4.09: Authorization. Each Party represents that (i) execution and delivery of this Agreement by it has been duly authorized by its governing body, (ii) that the consummation of the contemplated transactions will not result in a breach or violation of, or a default under, any Agreement by which it or any of its properties is bound, or by any statute, rule, regulation, order or other law to which it is subject, and (iii) this Agreement is a binding and enforceable Agreement. Section 4.10: Applicable Law. This Agreement shall be governed and construed in accordance with the laws of the State of Texas. Section 4.11: Provisions Severable. The provisions of this Agreement are severable, and if any provision or part of this Agreement or the application thereof to any person or any circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and +the' application of such provision or part of this Agreement to other persons or circumstances shall not be affected thereby. Section 4.12: Date. The date of this Agreement shall be deemed to be'the date written on the first page of this Agreement. [Execution Page to Follow] emergency interconnect brazoria 25 and peadand 5 IN WITNESS WHEREOF, this Agreement has been executed in multiple copies, each of which shall be deemed an original, effective as of the date first written above. (SEAL) ATTEST: (SEAL) BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 25 CITY OF PEARLAND emergency interconnect brazoria 25 and pearland 6 06/17/2603 16:17 713-527-6456 DANNENBAIJM EXHIBIT it PAGE 02/62 Om ALLEN Direct Line: (713) 860-6431 Direct Fax: (713) 860-6631 Mr. Darrin M. Coker City Attorney City of Pearland 3 519 Liberty Drive Pearland, Texas 77581 BOONE HUMPIIRIES LLP ATTORNEYS AT LAW PHOENIX TOWER 3200 SOUTHWEST FREEWAY SUITE 2600 HOUSTON, TEXAS 77027 (713)860 6400 abhllp.com ccampbell@abhllp.com September 3, 2003 CIT y J. Cathy Campbell Legal Assistant RECE/VE0 stet'0 4 2003 ATTORNEY Re: Brazoria County Municipal Utility District No 25 ("District") Dear Mr. Coker: Enclosed is one original Emergency Water Supply Agreement between the District and the City of Pearland. We retained one original for the District's records. Please call if you have any questions. Sincerely, Cott/lac Cathy Campbell Legal Assistant Enclosure te--)A,h) Aa()0, _6(P 4974 EXIST. 8 SOUTHGATE SUBDIVISION, SECTION ONE REMOVE 8" PLUG & CONNECT E.E. !. 1 —8"X8"TEE 1 — 8" G V. W/BOX 1 — 8" PLUG AstrP OP. 475 LF M.M. 8" W.L. 110.1111111101111111.11.41111111111111111.11111111111111111111111.011 CFI' ROAD 59 (4O' RD7W.) " SO UTHF`ORKT.TRIVE INTERCONNECT W/ C.O.P. 8" METER W/ VAULT BY PARK EQUIPMENT MODEL NO. DMICOH OR APPROVED EQUAL 1 — 12" X 8" TEE 1 — 8" G.V. W/BOX EASEMENT TO BE ACQUIRED BORE & JACK 40 LF — 8" W.L. • 30' R.OW. DEDICATED 30' R OW. DEDICATED TO BRAZORIA COUNTY I TO BRAZORIA COUNTY ESMT. SOUTHFORK SUBDIVISION, SECTION II-B 0 cb CITY OF PEARLAND BENCHMARK No. 9 59.03 (1987 ADJ) BRASS CAP SET FLUSH IN CONCRETE. STAMPED 'CRY OF PEARLAND 0 CPS MONO, 1995.' THE MONUMENT IS LOCATED IN THE NORTHWEST CORNER OF THE INTERSECTION OF THE WEST ACCESS ROAD TO HIOHWAY 288 AND COUNTY ROAD 02 AND F.M. 518. THE MONUMENT IS APPROXIMATELY 500 FEET NORTH OF COWRY ROAD 92 AND 32.5 FEET NORTHWEST OF THE SOUTHWEST CORNER OF A CONCRETE PAD FOR STORM DRAIN INLETS TO ADJUST SITE TOPOGRAPHY TO CRY OF PEARLAND MONUMENT j9 SET 1995 AND BASED ON HOCSD 1987 ADJUSTMENTS, ADD 0.67 I. LEI TO PROJECT WEE ELEVATIONS. THIS ADJUSTMENT IS BASED ON DIRECT ELEVATION T1E BETWEEN C.O.P. MONUMENT 19 AND HGCSD MONUMENT /74. BENCHMARK ELEV = 56,167 (1996 ADJ) HGWD BENCHMARK No. 74 BEING A STNNLESS STEEL ROD LOCATED 74.1 FT NORTH OF THE CENTERIJNE OF C.R. 37 AND 43.3 FT WEST OF THE ENTRANCE DRIVE TO SACRED HEART CATHOLIC CHURCH. TEMP 13,41. 1 ELEV = 63.75 SET BCD NNL IN NORTHERN SHOULDER OF C.R. 59 (DALLAS RD) AT THE SOUTHWESTERN PROPERTY CORNER. TEMP B.M. 2 ELEV = 61.82 SET 600 NNL IN NORTHERN SHOULDER OF C.R. 59 (DALIAS RD) AT THE SOUTHEASTERN PROPERTY CORNER. SOUTHFORK SUBDIVISION, SECTION FOUR N This document is releosed for Interim review & not intended for construction, bidding or permit purposes by DONALD W. ROBERTS TEXAS P.E. No.34777 DATE REVISION CKD. MADE BRAZORIA COUNTY M.U.D. NO.25 BRAZORIA COUNTY, TEXAS DANNENBAUM DANNENBAUM ENGINEERING CORPORATION 3iroW.Alill LIAHCusrON, TXnoostnmbscero PROPOSED INTERCONNECT W/ CITY OF PEARLAND DESIGN Br. DWI DRANK Br D1M DAIS: JIBE 2003 STET N0. 1 OF 1 APPROVER DINT SCALE 1' - 40' 9013 NO. 3407-01