R95-71 12-11-95 0
• •
RESOLUTION NO. R95 -71
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE, ON BEHALF
OF THE CITY, A WASTEWATER TREATMENT FACILITIES AGREEMENT
BY AND BETWEEN THE CITY AND BRAZORIA COUNTY MUNICIPAL
UTILITY DISTRICT NO. 16 ( "DISTRICT ") FOR PURPOSES OF
PROVIDING WASTEWATER TREATMENT SERVICES TO DEVELOPMENT
LOCATED INSIDE AND OUTSIDE THE DISTRICT THAT CANNOT BE
SERVED BY THE CITY'S EXISTING WASTEWATER TREATMENT
FACILITIES.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. Attached hereto as Exhibit "A" and incorporated
herein by reference, is the Wastewater Treatment Facilities
Agreement by and between the City and the District, for purposes of
9' Y
y P P
providing wastewater treatment services to development located
inside and outside the District that cannot be served by the City's
existing wastewater treatment facilities, which is acceptable to
the City.
Section 2. The City Manager is hereby authorized and
instructed to execute on behalf of the City the Wastewater
Treatment Facilities Agreement attached hereto as Exhibit "A" and
to execute any other documents necessary to accomplish the intent
and purposes of this Agreement.
PASSED, APPROVED and ADOPTED this the / 4day of ,
A. D., 1995.
TOM REID
MAYOR
ATTEST:
�
Y0l47 C. BENI 'EZ
C Y SECRETARY
APPROVED AS TO FORM:
*ILA /1\i'ita J
MOIES McCULLOUGH
CITY TORNEY
a. 1 4} •
WASTEWATER TREATMENT FACILITIES AGREEMENT
THE STATE OF TEXAS S
S KNOW ALL MEN BY THESE PRESENTS:
COUNTIES OF BRAZORIA AND HARRIS S
THIS WASTEWATER TREATMENT FACILITIES AGREEMENT (the
"Agreement ") is made and entered into as of December 6th, 1995, by
and between BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 16
( "BCMUD 16" or, the "District ") a political subdivision of the
State of Texas organized under Article 16, Section 59 of the
Constitution of the State of Texas, and operating pursuant to
Chapters 49 and 54, Texas Water Code, and the City of Pearland
( "City "), a home rule city located with Brazoria and Harris
Counties, Texas.
W I T N E S S E T H:
WHEREAS, the District has been created and organized for
the purposes, among others, of protecting, preserving, and
restoring the purity and sanitary condition of water within the
State and is empowered to collect, transport, process, dispose of,
and control domestic and communal wastes; and
WHEREAS, the City has the authority to collect,
transport, process, dispose of, and control domestic and communal
wastes; and
WHEREAS, the District anticipates development of land
within its boundaries beginning in the immediate future and wishes
to provide for a source of wastewater treatment for such
development; and
WHEREAS, the City wishes to make arrangements for the
providing of wastewater treatment service to the development of
certain lands which are located either within the City or within
' tion and located in
an area
the City's extraterritorial jurisdiction th Ci J
Y urisd
TGG\ 60999 .2 \WASTEWATERTREATMENTFAC3114
•
that cannot be served by the City's existing wastewater treatment
facilities; and
WHEREAS, the City and the District wish to provide the
terms under which either party can construct and expand wastewater
treatment facilities from time to time to provide wastewater
treatment service to their customers; and
WHEREAS, the granting of the right of the parties to
contract to construct and expand joint wastewater treatment
facilities is permitted by the Interlocal Cooperation Act, V.T.C.A.
Government Code, Section 791 et. seq. and is consistent with and
in furtherance of the policy of the Texas Natural Resource
Conservation Commission (the "Commission "), the State agency
charged with the responsibility for preserving and improving the
quality of the waters in the State of Texas, to encourage the
development of integrated, area -wide waste collection and treatment
facilities, to serve the waste disposal needs of the citizens of
the State, it being an objective of the policy to avoid the
economic burden to the people and the impact on the quality of the
waters in the State which will result from the construction and
operation of numerous small waste collection and treatment
facilities, when an area -wide waste collection, treatment, and
disposal system can reasonably be provided; and
WHEREAS, the District and the City now wish to establish
a definitive basis for the acquisition of wastewater treatment
facilities and the sharing of the Operation and Maintenance Costs
(hereinafter defined) of such facilities.
TGG\ 60999 .2 \WASTEWATERTREATMENTFAC3114 2
•1
•
A G R E M E N T
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by all
parties hereto, the parties hereto agree to the terms and
conditions hereinafter set forth, to -wit:
ARTICLE I
DEFINITIONS
Section 1.01. Terms and expressions used in this
Agreement, unless the context clearly shows otherwise, shall have
the following meanings:
a. "BCMUD 16" or "District" shall mean Brazoria County
Municipal Utility District No. 16.
b. "BCMUD 16 Engineers" shall mean Jones & Carter, Inc.
or such other consulting engineering firm as BCMUD 16 shall retain
from time to time.
c. "BCMUD 16 Plant" shall mean any temporary or
permanent sewage treatment facilities located on the BCMUD 16 Site,
as such facilities may be expanded or improved from time to time.
Currently, it is anticipated that the initial sewage treatment
facilities shall be leased and then a permanent sewage treatment
plant shall be constructed in phases to a maximum size of 2,300,000
gallons per day ( "gpd ") of capacity.
d. "BCMUD 16 Site" shall mean the approximately 8.82
acres generally located as reflected on Exhibit "A ", which site
shall include no less than 2.35 acres available for actual
TGG\ 60999 .2 \WAsTEWATERTREATMENTFAC3114 3
`t •
1 I •
construction of sewage treatment facilities with the remainder
available for buffer purposes.
e. "Construction Costs" shall mean all costs and
expenses related to the acquisition, leasing, construction or
expansion of the BCMUD 16 Plant including, without limitation,
lease payments for any temporary sewage treatment facilities, land
costs, engineering fees and contingencies, permits, construction
contract costs, and surveying, and any other costs reasonably
related to acquiring temporary or permanent sewage treatment
facilities.
f. "Fixed Operating Costs" shall mean all Operation and
Maintenance Costs which do not increase or decrease with variations
in flow, including, but not limited to lease payments; repairs and
maintenance; professional services such as legal, engineering,
bookkeeping and audit; telephone charges; lab fees; and insurance
and permit fees.
g. "Industrial Waste" shall mean water -born solids,
liquids or gaseous wastes resulting from and discharged, permitted
to flow or escaping from any industrial, manufacturing or food
processing operation or process from the development of any natural
resource, or any mixture of these with water or domestic sewage, as
distinct from Sewage (as herein defined).
h. "Operation and Maintenance Costs" shall mean all
costs and expenses directly incurred in the operation and
maintenance of the BCMUD 16 Plant, including, without limitation,
contractual payments for the services of a utility operator and /or
an independent contractor performing maintenance functions on the
TGG\ 60999 .2 \WASTEWATERTREATMENTFAC3114 4
•
BCMUD 16 Plant; chemicals; power; materials and supplies; permit
fees, including costs of renewals of permits; engineering fees;
testing costs, waste disposal charges, sludge hauling and all other
items and expenses of a like nature which may reasonably be
required for the efficient maintenance and operation of the
BCMUD 16 Plant in full compliance with all regulatory
requirements. Operation and Maintenance Costs shall be divided
between Fixed Operating Costs and Variable Operating Costs, as
provided herein.
j. "Sewage" shall mean the liquid and water - carried
domestic sanitary sewage discharged from the sanitary conveniences
of residential dwellings or commercial structures together with
such infiltration water as may be present, including properly
shredded garbage (i.e., wastewater that generally consists of no
more than 200 milligrams per liter of biochemical oxygen demand and
no more than 200 milligrams per liter of total suspended solids).
Sewage also shall include Industrial. Waste which has been pre-
treated in accordance with the requirements of Article IX hereof.
k. "Variable Operating Costs" shall mean all Operation
and Maintenance Costs which increase or decrease with variations in
flow, including, but not limited to the cost of operator fees and
expenses; electrical utilities; sludge removal; chemicals and water
and all expenses which are not Fixed Operating Costs.
ARTICLE II
CAPACITY AND SERVICE AREA
Section 2.01. Capacities. Currently, the BCMUD 16 Site
is vacant and there is no BCMUD 16 Plant. In the near future it is
TGG\ 60999 .2 \WASTEWATERTREATMENTFAC3114 5
•
•
anticipated that either BCMUD 16 or the City may lease on a
temporary basis or construct the first phase of the BCMUD 16 Plant.
After the lease or construction of the first phase of the BCMUD 16
Plant or any subsequent expansion of the BCMUD 16 Plant, the
party(ies) participating in such phase shall have the sole use of
the wastewater treatment capacity created thereby. Each party
shall be deemed to have a beneficial interest in the BCMUD 16 Plant
equal to the percentage of wastewater treatment capacity which it
has funded. Following each expansion, BCMUD 16 Engineers shall
certify as to the amount of additional capacity created by such
expansion and the percentage of undivided beneficial interest in
the BCMUD 16 Plant allocated to each party.
The parties agree that legal title to the BCMUD 16 Plant
and the BCMUD 16 Site shall be held by BCMUD 16, but that each
party hereto shall have the right to utilize that percentage of the
capacity of the BCMUD 16 Plant equal to its beneficial interest in
the BCMUD 16 Plant. If any action by any regulatory authority
having jurisdiction over the BCMUD 16 Plant causes the rated
capacity in the BCMUD 16 Plant to be reduced, then each party's pro
rata beneficial interest shall be reduced proportionately. At the
time of the next following expansion, each party shall have the
option to participate in the next expansion and pay for the cost of
such party's upgrade of capacity, as well as its participation in
any additional capacity.
Each party represents and warrants that it will take such
actions as are necessary to assure that its customers do not
TOO\ 60999 .2 \WASTEWATERTREATMENTFAC3114 6
discharge waste in excess of that portion of the actual hydraulic
capacity of the BCMUD 16 which such party is entitled to use.
Section 2.02. Service Area. BCMUD 16 shall have the
right to provide sewage treatment service to customers located
within its boundaries. The City shall have the right to provide
sewage treatment service to customers located outside the
boundaries of BCMUD 16.
ARTICLE III
FIRST PHASE AND SUBSEQUENT
EXPANSIONS OF BCMUD 16 PLANT
Section 3.01. Lease or Construction. It is contemplated
by the parties that several phases of the BCMUD 16 Plant will be
necessary as development progresses in the service areas of the
parties. Currently, it is contemplated that at full development of
BCMUD 16, its customers will be utilizing approximately 300,000 gpd
of sewage treatment service. The City anticipates that at full
development of its service area, its_customers will be utilizing
approximately 2,000,000 gpd of sewage treatment service.
The parties hereto agree that either may initiate the first
phase of the BCMUD 16 Plant or expand the BCMUD 16 Plant at any
time that such party determines that it needs more wastewater
treatment capacity than its then current beneficial interest, such
expansion to be at the sole expense of such party and such party
shall be entitled to exclusive use of the resulting additional
treatment capacity.
Prior to commencing planning for an expansion, however, the
party wishing to expand (the "Initiating Party ") shall advise the
TGG\ 60999 .2 \WASTEWATEATBEATMENTFAC31 7
other party of its intent and the other party shall have sixty (60)
days to notify the Initiating Party whether it wishes to
participate in a larger expansion and /or participate in the
construction of improvements that restores the previously rated
capacity of the BCMUD 16 Plant. In the event both parties wish to
participate in an expansion, the costs of the larger expansion
shall be divided between the parties on the basis of the portion of
the project planned for each party and each party shall be entitled
to exclusive use of the capacity it finances.
Section 3.02. Engineering. The parties hereto agree
that the engineer who shall design and supervise the construction
of all phases of the BCMUD 16 Plant shall be the BCMUD 16
Engineers.
During the design of a phase of the BCMUD 16 Plant, if
the City is participating in the expansion, the BCMUD 16 Engineers
shall (i) provide monthly reports as to the status of the project
to the City, (ii) make available to -the City the plans for the
expansion, and (iii) consider any recommendations suggested by the
City's engineers, provided that all final engineering decisions on
the design of an expansion shall be made by the BCMUD 16 Engineers.
Section 3.03. Design and Construction Financing. Within
thirty (30) days following the determination of the size of the
expansion, the BCMUD 16 Engineers shall notify each party
participating in the expansion as to the estimated Construction
Costs including fifteen per cent (15 %) contingencies. Thereafter,
within forty -five (45) days of such notice, each party shall
forward to BCMUD 16's Bookkeeper monies in the amount of its
TGG\ 60999 .2 \WASTEWATERTFIEATMENTFAC3114 8
411 4„
imp
estimated pro rata share of the design cost of the expansion, which
shall be equal to such party's share of the additional capacity to
be constructed multiplied times the design cost. In the event
either party does not have immediately available monies in an
amount sufficient to pay its pro rata share of the Construction
Costs of the expansion, such party shall immediately begin raising
money for its share of the Construction Costs.
The BCMUD 16 Bookkeeper shall establish a separate bank
account to be used for payment of all Construction Costs related to
the expansion (the "Joint Construction Account "). During each
month following the deposit of the initial monies into such
account, the BCMUD 16 Bookkeeper shall forward to each
participating party a copy of its Bookkeeper's Report, reflecting
the (i) amount of money in such account, (ii) interest earned
thereon, and (iii) invoices paid from such account.
Upon completion of the design of the expansion and within
forty -five (45) days following receipt of notice thereof (the
"Deposit Notice "), each party participating in the expansion shall
deposit into the Joint Construction Account its estimated pro rata
share of the Construction Costs of the expansion as calculated by
the BCMUD 16 Engineers. Such amount shall be equal to each party's
share of the additional capacity to be constructed multiplied times
the estimated Construction Costs.
In the event the BCMUD 16 Engineers determine that the
estimated Construction Costs for the expansion (which, after the
bids for the expansion are received, shall include the actual bid
amount plus five percent (5 %) contingencies) shall exceed the total
T00\ 60999 .2 \WASTEWATERTREATMENTFAC 9
amount of money deposited to the Joint Construction Account, the
BCMUD 16 Engineers shall notify each participating party as to the
amount of the shortfall. Within forty -five (45) days after such
notice, each participating party shall deposit its pro rata share
of the shortfall to the Joint Construction Account.
BCMUD 16 shall take all steps necessary (i) to have such
monies invested in interest bearing accounts, which interest shall
be deposited in the Joint Construction Account, and (ii) to have
such monies fully insured by the applicable federal deposit
insurance agency or otherwise fully secured. All monies deposited
to the Joint Construction Account shall be used solely for
Construction Costs of the expansion. Within forty -five (45) days
following completion of the construction of any expansion, BCMUD 16
shall forward a summary of all Construction Costs to each
participating party and refund any remaining monies.
Section 3.04. Bidding and Construction Agreements.
Immediately upon issuing the Deposit Notice, BCMUD 16 shall
advertise for bids for the expansion in accordance with Section
49.271 et seq, Texas Water Code, and all other state and federal
laws and administrative rules applicable to the letting of
construction contracts by a municipal utility district.
Immediately upon receipt of an acceptable bid for construction of
an expansion, BCMUD 16 shall take all steps necessary to let a
contract for construction of the expansion and shall diligently
pursue such contract through completion.
Section 3.05. Construction. Each expansion of the
BCMUD 16 Plant shall be designed, installed, and constructed in the
T00\ 60999 .2 \WAsTEWATERTREATMENTFAC3114 10
ti
manner provided by the general laws of the State of Texas relating
to municipal utility districts and in full compliance with all
rules, regulations, and orders of the Commission and all
governmental agencies having jurisdiction.
Section 3.06. Permits. BCMUD 16 currently holds TNRCC
Permit No. 13307 -001 and NPDES Permit No. TX 0100951 which allows
for the discharge of effluent from the BCMUD 16 Site. Following
the completion of any expansion, BCMUD 16 shall hold and shall
continue to hold the waste discharge permit from the Commission,
together with all related permits (collectively the "Permits "),
which allow construction and operation of the BCMUD 16 Plant.
BCMUD 16 shall be responsible for obtaining all necessary
amendments or renewals of the Permits, the costs of which shall be
considered a part of the Operation and Maintenance Costs; provided,
however, that the costs of any amendment necessitated solely
because of an expansion to the BCMUD 16 Plant shall be borne only
by the parties participating in such expansion.
Section 3.07. BCMUD 16 Site. Immediately upon execution
of this Agreement, BCMUD 16 shall have an appraiser mutually
acceptable to the parties obtain an appraisal of the current fair
market value of BCMUD 16 Site. Following the parties receipt of
such appraisal and upon BCMUD 16 providing the City with evidence
that it has acquired title to the BCMUD 16 Site, the City shall pay
to BCMUD 16 55% of the appraised current fair market of the BCMUD
16 Site. Such amount is equal to the City's projected share of the
ultimate capacity of the BCMUD 16 Plant multiplied times the
current fair market value of the land within the BCMUD 16 Site.
TGG\ 60999 .2 \WASTEWATERTREATMENTFAC3114 11
i
•
Section 3.08. Limits on Capacity. BCMUD 16 shall have the
right to lease, construct or otherwise acquire, from time to time
and in accordance with the terms of this Agreement, capacity in the
BCMUD 16 Plant up to a maximum of 300,000 gpd of wastewater
treatment capacity. The City shall have the right to lease,
construct or otherwise acquire, from time to time and in accordance
with the terms of this Agreement, capacity in the BCMUD 16 Plant up
to a maximum of 2,000,000 gpd of wastewater treatment capacity.
ARTICLE IV
OPERATION AND MAINTENANCE OF THE BCMUD 16 PLANT
Section 4.01. Joint Operating Account. Upon construction
of the first phase of the BCMUD 16 Plant, BCMUD 16 shall establish
a separate bank account to be used solely for the payment of the
Operation and Maintenance Costs for the BCMUD 16 Plant (the "Joint
Operating Account "). Such accounts shall be used for the purposes
and in the manner provided herein:
(a) The Joint Operating Account shall be established to
and used solely to pay the Operation and Maintenance Costs of the
BCMUD 16 Plant and to provide a reserve for Operation and
Maintenance Costs. BCMUD 16 shall review and establish the amount
of the reserve at least annually. The reserve portion of the Joint
Operating Account may contain up to three (3) months of Operation
and Maintenance Costs, based on the annual budget of the BCMUD 16
Plant.
(b) Each party shall contribute to the reserve portion
of the Joint Operating Account in the ratio expressed in a
TGG\ 60999 .2 \WASTEWATERTREATMENTFAC3114 12
4
percentage equal to its undivided beneficial interest in the BCMUD
16 Plant.
Section 4.02. Operations and Maintenance Costs. As
hereinafter more particularly provided, all Operations and
Maintenance Costs shall be borne by the parties as follows:
(a) With respect to Fixed Operating Costs in the ratio
of the undivided beneficial interest of each party.
(b) With respect to Variable Operating Costs, in the
ratio of the number of equivalent single family connections
( "esfc ") being provided wastewater treatment service by each party,
provided, however, that at such time as a phase of the BCMUD 16
Plant is completed giving a party its initial capacity in the BCMUD
16 Plant, the Variable Operating Costs shall be calculated assuming
such party is providing sewage treatment service to a minimum of
100 esfc. Each single family dwelling unit connected to the
District's water supply system and each single family dwelling unit
receiving water service from the City and wastewater treatment
service from the City's share of the BCMUD 16 Plant, whether
detached or part of a multi - family project, shall be presumed to
use one esfc of wastewater treatment service. All other customers
of a party will be allocated one esfc for each 10,000 gallons of
water purchased during a month; provided however, when water is
provided by a party and no wastewater collection service is
provided, such customer shall not be counted.
(c) As provided by Section 4.03 hereof, BCMUD 16 shall
prepare and deliver to each party an invoice in the amount of each
party's share of the Operation and Maintenance Costs. Operation and
TGG\ 60999 .2 \WASTEWATERTREATMENTFAC3114 13
Maintenance Costs shall be the sum of actual Fixed Operating Costs
and actual Variable Operating Costs.
BCMUD 16 shall keep separate books and records of account of
the Operation and Maintenance Costs of the BCMUD 16 Plant. Each
party recognizes and agrees that it alone must pay all costs and
expenses incurred in collecting the Sewage from its own customers
and /or property located within its service area, pretreating such
Sewage, if necessary, and transporting the same to the BCMUD 16
Plant.
Section 4.03. Billing. Each month BCMUD 16 shall
forward to each party having a beneficial ownership interest in the
BCMUD 16 Plant (i) a statement itemizing the Operation and
Maintenance Costs for the BCMUD 16 Plant and an invoice showing the
costs attributable to such party, (ii) the report on the operations
of the BCMUD 16 Plant submitted to BCMUD 16 by its utility system
operator, and (iii) BCMUD 16's Bookkeeper Report reflecting (a) the
amount of money in the Joint Operating-Account, (b) interest earned
thereon, and (c) invoices paid from such account. Within forty -
five (45) days of receipt of the invoice for its share of the
Operation and Maintenance Costs, each party shall pay into the
Joint Operating Account an amount equal to such invoice.
Any sums payable to the Joint Operating Account that are
not paid within forty -five (45) days after the date of receipt of
a statement therefor shall bear interest at a rate of ten percent
(10 %) per annum from such date until payment. All sums payable
hereunder by any party shall be paid without set -off, counterclaim,
abatement, suspension, or diminution, it being the intention of the
TGG\ 60999 .2 \WASTEWATERTREATMENTFAC3114 14
parties that all sums required to be paid pursuant to this Section
shall continue to be payable in all events.
Section 4.04. Annual Audit. Each year, in conjunction
with the audit of its annual operations, BCMUD 16 shall have an
audit performed of the revenue and expenses of the Joint Operating
Account. The cost of such audit shall be a Fixed Operating Cost.
Section 4.05. Annual Budget. Within thirty (30) days
after the beginning of BCMUD 16's fiscal year, BCMUD 16 shall
forward to the City a budget of anticipated Operation and
Maintenance Costs of the BCMUD 16 Plant. Such budget shall include
any projected repairs, replacements, upgrades or capital
improvements to the BCMUD 16 Plant.
Section 4.06. Operating Expense, Source of Payment and
Sufficiency of Income. The parties agree, represent and covenant
reciprocally that as far as applicable under the law, all charges
required to be paid by them under this Agreement for wastewater
treatment services shall constitute proper operating expenses of
their respective waterworks and sanitary sewer systems and shall be
payable as an operating expense from the income of their respective
waterworks and sanitary sewer systems, as authorized by the
Constitution and laws of the State of Texas. The parties further
agree to adjust and maintain from time to time the rates charged to
the customers of their respective waterworks and sanitary sewer
systems such that the income therefrom, taking into account all
other sources of income, shall at all times be sufficient to
promptly pay or make provision for the prompt payment of their pro
TG0\ 60999 .2 \WASTEWATERTREATMENTFAC3114 15
•
rata share of the Operation and Maintenance Costs of the BCMUD 16
Plant.
Section 4.07. Fines, Penalties, Judgments, or
Extraordinary Expenses. If any fines, penalties or judgments are
levied or rendered against BCMUD 16, or any extraordinary expenses
are incurred, including the costs of any repairs to the BCMUD 16
Plant, as a result of a failure on the part of one, but not both of
the parties hereto, to comply with the provisions of this
Agreement, then, the noncomplying party shall be responsible for
payment of such fine, penalty or judgment, and all expenses related
thereto, and all such extraordinary expenses.
ARTICLE V
DUTIES OF BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 16
Section 5.01. General Statement. BCMUD 16 shall operate
and maintain the BCMUD 16 Plant in compliance with the applicable
discharge permits and in a prudent, efficient, and economical
manner and shall take such steps as from time to time may be
reasonable to reduce the Operation and Maintenance Costs,
consistent with the needs of the parties hereto. In operating and
maintaining the BCMUD 16 Plant, BCMUD 16 shall be liable only for
damages as may result from its gross negligence or from breach of
the express provisions of this Agreement.
Section 5.02. Hiring Operator for BCMUD 16 Plant. Prior
to completion of the first phase of the BCMUD 16 Plant, BCMUD 16
shall solicit from the City a proposal for the City to operate the
BCMUD 16 Plant using its own employees. BCMUD 16 also may solicit
bids to operate the BCMUD 16 Plant from qualified operating
TGG\ 60999 .2 \WASTEWATERTREATMENTFAC3114 16
•
companies. As long as the fees proposed by the City do not exceed
the fees offered by competing qualified operating companies, BCMUD
16 shall hire the City to operate the BCMUD 16 Plant pursuant to a
contract to be negotiated between them. The operating contract
shall be for an initial term of three (3) years and shall continue
automatically for additional one year terms thereafter unless
terminated by either party upon six (6) months advance written
notice. BCMUD 16 shall be free to solicit bids for operation of
the BCMUD 16 Plant at any time, provided however, the operating
contract with the City may only be terminated in accordance with
the provisions of this Agreement. As long as the fees proposed by
the City do not exceed the fees proposed by independent operating
companies, BCMUD 16 shall continue to contract with the City.
Nothing herein shall prevent BCMUD 16 from terminating an operating
agreement with the City because of the City's failure to
satisfactorily operate the BCMUD 16 Plant.
Section 5.03. Adoption of Rules and Regulations Relative
to Treatment of Sewage. BCMUD 16 may adopt reasonable rules and
regulations necessary for it to comply with all regulatory
requirements relative to its treatment of Sewage at the BCMUD 16
Plant, including, but not limited to, rules and regulations
regarding quality and quantity of Sewage delivered to the BCMUD 16
Plant. Such rules shall apply equally to BCMUD 16 and the City.
Section 5.04. Payment of Operation and Maintenance
Costs. BCMUD 16 shall promptly pay and discharge all Operation
and Maintenance Costs relating to the BCMUD 16 Plant, including
T00\ 60999 .2 \WASTEWATERTREATMENTFAC3114 17
without limitation those occasioned by replacements, additions, and
improvements thereto.
Section 5.05. Meetings with the City. Upon the request
of the City, and no less often than once per calendar quarter,
BCMUD 16 agrees to conduct meetings with the City to discuss the
operations of the BCMUD 16 Plant and to receive any suggestions or
complaints.
ARTICLE VI
INSURANCE
Section 6.01. Obligation to Insure. BCMUD 16 shall
carry fire and extended coverage insurance on the BCMUD 16 Plant in
the amount equal at least to the replacement cost of the BCMUD 16
Plant, the cost of which insurance shall be borne by the parties in
proportion to their beneficial interests. Boiler and machinery,
pollution and all other types of insurance applicable to the BCMUD
16 Plant may be purchased by BCMUD 16 at its discretion after
review of the operating history of -the BCMUD 16 Plant, cost,
coverage and deductible and shall be borne by the parties in
proportion to their beneficial interests.
BCMUD 16 and the City further agree to co- operate to obtain
insurance proposals from the Texas Municipal League or insurance
" carriers sponsored by such League.
Section 6.02. Casualty. If the BCMUD 16 Plant shall be
damaged or destroyed by fire or other casualty, BCMUD 16 shall
apply the proceeds from any fire and extended insurance either (1)
to repair such damage or destruction so as to restore the BCMUD 16
Plant as nearly as possible to the condition thereof immediately
TGG\ 60999 .2 \WASTEWATERTREATMENTFAC3114 18
prior to such damage or destruction, or (2) to construct, install,
or otherwise add to the remaining portion of the BCMUD 16 Plant
substantially equal in value to the portion of the BCMUD 16 Plant
damaged or destroyed and of a usefulness comparable to that of the
destroyed improvement in carrying out the purposes of this
Agreement. The insurance proceeds, if any, remaining after
application to repair, restoration, or construction as provided in
this Article shall be returned to the parties hereto in the same
pro rata share as the beneficial interests which each party has.
ARTICLE VII
DELIVERY AND TITLE
Title to all wastewater generated by a party hereto shall
remain with such party until it is delivered to the BCMUD 16 Plant.
Upon delivery of the wastewater to the BCMUD 16 Plant title thereto
shall pass to BCMUD 16.
ARTICLE VIII
INTERNAL SANITARY SEWAGE COLLECTION LINES
Section 8.01. Maintenance and Repair. Each party
agrees to maintain or contract to maintain in good condition all
wastewater collection lines conveying wastewater from its customers
to the BCMUD 16 Plant. Each party further agrees that it will
promptly repair any breaks to its sewage conveyance facilities so
as to prevent the discharge of wastewater therefrom and any
unreasonable inflow of surface or groundwater, sand, or other
foreign materials. The parties hereto agree that wet weather flows
exceeding two (2) times dry weather flows will be considered
unreasonable inflow of surface or groundwater.
TOG\ 60999 .2 \WASTEWATERTREATMENTFAC3114 19
Section 8.02. Rules and Regulations. Each party
covenants and agrees that it will adopt and enforce rules and
regulations to insure that: (1) connections to its wastewater
collection system will be such and only such as to prevent the
discharge into its system of anything except admissible Sewage; (2)
no drains shall be installed or connected in such manner that any
rainwater or other surface waters are permitted to enter its
wastewater collection system; and (3) adequate safeguards will be
taken to prevent any abnormal seepage, inflow, infiltration or
discharge of any solid matter into its wastewater collection.
ARTICLE IX
WASTE STANDARDS
Section 9.01. Regulation of Quality of Waste. In
order to permit BCMUD 16 to properly treat and dispose of each
party's Sewage, to protect the public health, to permit cooperation
with other entities for the protection of the physical, chemical
and bacteriological quality of public waters and watercourses, and
to protect the properties of the BCMUD 16 Plant, the parties agree
that the quality and strength of all Sewage collected by their
respective wastewater collection systems and discharged into the
BCMUD 16 Plant must be regulated. The parties agree to regulate
the quality and strength of the Sewage to be discharged into the
BCMUD 16 Plant as may be required from time to time to permit BCMUD
16 Plant to protect the properties of the BCMUD 16 Plant and to
operate the BCMUD 16 Plant so as to treat and dispose of Sewage in
compliance with the orders, rules, regulations or permits issued or
TGG\ 60999 .2 \WASTEWATERTREATMENTFAC3114 20
adopted from time to time by any regulatory body having
jurisdiction.
Section 9.02. Admissible Sewage. Wastewater discharged
into the BCMUD 16 Plant shall consist only of Sewage which is
amenable to biological treatment and which meets the quality and
strength limitations allowed pursuant to this Agreement or any rule
or regulation issued by BCMUD 16 pursuant to Section 5.02 hereof.
Section 9.03. Industrial Wastes. The effects of certain
types of Industrial Waste upon sewers and waste treatment
processors are such as to require that careful and special
consideration be given to each industrial connection. Accordingly,
the parties will regulate the discharge of Sewage into their
respective wastewater collection systems, and in turn into the
BCMUD 16 Plant, including requiring pretreatment before discharge
into their respective wastewater sewer collection systems, if
necessary, to meet the quality requirements for waste admissible to
the BCMUD 16 Plant, and the parties will only authorize the
discharge of Industrial Waste into their systems subject to BCMUD
16's approval and after the filing of a statement by an applicant
industry, a copy of which shall be forwarded to BCMUD 16,
containing the following information:
(1) Name and address of applicant,
(2) Type of industry,
(3) Quantity of plant waste,
(4) Typical analysis of the waste,
(5) Type of pretreatment proposed,
TOO\ 60999 .2 \WASTEWATERTREATMENTFAC3114 21
1
and such other information as may reasonably be requested from time
to time by written notice.
ARTICLE X
DISCLOSURE
Section 10.01. Inspection. Each party shall have the
right at any time by actual count or inspection by its authorized
representatives or by checking and inspecting the books, records,
and accounts of any other party to determine the number of
properties served by its wastewater collection system, the number
of connections thereto, and the quantities and quality of waste
discharged thereby. It shall be the duty of the officials of each
party to cooperate fully with any other party in obtaining such
information. Each party's books, records, and accounts shall be
open for inspection at all reasonable business hours by any
authorized representative of any other party.
ARTICLE XI
ASSIGNMENT
This Agreement or any rights acquired hereunder shall not
be assigned, in whole or in part, by any party hereto without the
prior written consent of the other party.
ARTICLE XII
RIGHT OF ENTRY
Each party shall have the right of entry at reasonable
times and upon reasonable notice in, over and across the lands,
properties and facilities comprising the wastewater collection
systems of the other for the purposes of making any inspections
permitted by this Agreement or any rule or regulation permitted by
TCG\ 60999 .2 \WASTEWATERTREATNENTFAC3114 22
this Agreement and for the purpose of performing any other
functions or duties authorized by this Agreement or any rule or
regulation permitted by this Agreement. Each party shall have the
right of entry at reasonable times and upon reasonable notice in,
over and across the lands, properties and facilities comprising the
BCMUD 16 Plant for the purpose of inspecting same.
ARTICLE XIII
LIABILITY FOR INDEBTEDNESS
It is expressly understood and agreed that nothing in
this Agreement shall have the effect of causing any party hereto
to assume, guarantee, or become in any way liable for any bond,
warrant, note, or other indebtedness or obligation of any other
party hereto.
ARTICLE XIV
AMENDMENTS
This Agreement may be changed or modified only by
written amendment hereto with the consent of both parties.
ARTICLE XV
RULES OF OTHER GOVERNMENTAL ENTITIES
This Agreement shall be subject to all valid rules,
regulations, and laws applicable hereto passed or promulgated by
the United States of America, the State of Texas, or any
governmental body or agency having lawful jurisdiction or the
authorized representative or agency or any of them.
TGG\ 60999 .2 \WASTEWATERTREATMENTFAC3114 23
ARTICLE XVI
REMEDIES
In enforcing the performance of the provisions of this
Agreement each party shall have the right to the exercise of all
procedures available under the law including, but without
limiting the generality thereof, a writ of mandamus to command
performance of any provision. No waiver of any breach or default
of any provision of this Agreement shall be deemed a waiver of any
subsequent waiver or default.
If any party hereto is the prevailing party in any legal
proceedings against any signatory on this Agreement brought under
or with relation to this Agreement, such prevailing party shall
additionally be entitled to recover court costs and reasonable
attorney's fees from any non - prevailing party to such proceedings.
ARTICLE XVII
FORCE MAJEURE
To the extent that any party to this Agreement shall be
wholly or partially prevented from the performance within the term
specified of any obligation or duty placed on such party by any
reason of or through strikes, stoppage of labor, riot, fire, flood,
hurricane, invasion, insurrection, accident, the order of any
court, judge, or civil authority, an act of God, or any cause
reasonably beyond such party's control and not attributable to its
neglect, then, in such event, the time for the performance of such
obligation or duty shall be suspended until such disability to
perform is removed.
TOG\ 60999 .2 \WA$TEWATERTREATMENTFAC3114 24
ARTICLE XVIII
NOTICE
Unless otherwise provided in this Agreement, any notice
herein provided or permitted to be given, made, or accepted by any
party must be in writing and may be given by depositing same in the
United States mail postpaid, return receipt requested, telecopied
or by delivering the same to an officer of such party to be
notified. Notice deposited in the mail in the manner described
above shall be conclusively deemed to be effective from and after
the expiration of three (3) days after it is so deposited. Notice
given in any other manner shall be effective only if and when
received by the party to be notified. For the purposes of notice,
the addresses of the parties shall be as follows:
Board of Directors
Brazoria County Municipal Utility
District No. 16
c/o Coats, Rose, Yale, Holm, Ryman & Lee, P.C.
800 First City Tower, 1001 Fannin
Houston, Texas 77002 -6707
Telecopier: 713/651 -0220 -
City of Pearland
Attention: City Manager
3519 Liberty Drive
Pearland, Texas 77581
The parties shall have the right from time to time and at any
time to change their respective addresses and each shall have the
right to specify as its address any other address in the State of
Texas upon giving at least fifteen (15) days written notice to the
other parties.
TGG\ 60999 .2 \WASTEWATERTREATMENTFAC3114 25
w
ARTICLE XIX
TITLES NOT RESTRICTIVE
The titles assigned to the various articles and sections
of this Agreement are for convenience only and are intended to be
descriptive of the matters following said titles. The titles shall
not be considered restrictive of the subject matter of any article,
section, or part of this Agreement.
ARTICLE XX
SEVERABILITY
If any one or more of the articles, sections,
provisions, clauses, or words of this Agreement shall for any
reason be held to be invalid, such invalidity shall not affect any
other article, section, provision, clause, or word of this
Agreement, and the parties hereto agree that they would have
entered into this Agreement regardless of such invalidity.
ARTICLE XXI
TERM OF AGREEMENT
This Agreement shall remain in effect for a period of
forty (40) years from the effective date hereof.
ARTICLE XXII
MERGER
This Agreement constitutes the entire agreement between
the parties relative to the subject matter hereof. There have been
and are no agreements, covenants, representations or warranties
between the parties other than those expressly stated or provided
for herein. This Agreement supersedes and replaces any previous
TGG\ 60999 .2 \WASTEWATERTREATMENTFAC3114 26
M
agreement or contract between the parties relating to permanent
waste disposal.
EXECUTED in multiple copies, each of equal force, and
EFFECTIVE as of the date first set forth herein.
BRAZORIA COUNTY MUNICIPAL UTILITY
DISTRICT NO. 16
President, Board of Directors
ATTEST:
Secreta y, Board of Directors
[DISTRICT SEAL]
CITY —AR
Paul Grohman, City Manager
ATTEST:
<_
Ak-4/Z-/
\I e/
y
[SEAL]
TGG\ 60999 .2 \WASTEWATERTREATMENTFAC3114 27
,r
THE STATE OF TEXAS §
COUNTIES OF HARRIS AND BRAZORIA §
This instrument was acknowledged before me on ,, L, ,
1995 by Jnac ior.wLIA. iva.s;r4 e.,T of Brazoria County Municipal
Utility District No. 16, a political subdivision, on behalf of said
political subdivision.
t % `r ° GWEN BRIGGS Notary Public in a c ' for the
# STATE Notary P ll State of T E X A S
W My COMM . Exp. 2/21/97 I Name Printed or TJAWd
„ . ..,,. .:. .. .n. My commission expires: ,Zia I/ 11
THE STATE OF TEXAS §
COUNTIES OF HARRIS AND BRAZORIA S
This instrument was acknowledged before me onr(1CCe t4/ /av,
1995 by Paul Grohman, City Manager, of City of Pearland, a
political subdivision, on behalf of said political subdivision.
�ltc�
dal
,�t��- �,,-���-_,—.. ������ otary Public n and for the
0 .a�,. State of T E X A S
. ` ° , TOMMIE JEAN VIAL / _ �� ,, /
1 + ioo " + � Notary Public ,State of Texas /0/71 /7!1 6, / 1 t 1) _ V l .4L
/ Commission Expires 2 -25-97 / Name Printed or Typed
e ' s��-. , .. „ .„-��„�� ,�� _.,„: ._ ��/ My commission expire s � - 97
f
TGG\ 60999 .2 \WASTEWATERTREATMENTFAC3114 28
•
1 . ,
Vigil l— '111 r
1p �id_S1:l� �. Lam Pop 1,474 \1 C:;:::) 1 Day. MANRY Cem u McCHARD _ 1
Tom Boss I \\ South
ro Regional Park Christia
o Golf Coupe Adak Pork
a
County Cemetery
a 2 c.} Pork
S Rg2a Y • PI 0
Country Plaoe
H
''LL'°' 1 NMI VILLAG' il . u.in
Country Club _ll D 500 1000 2000 1000
emee PA "'al STON ST SCALE DL FEET _ _ �� �� z � ONGLEAi �� AO re Slek voa. 41 i
0.2� � I 5 \
c.
is
SHARON re
•
•
10 • �' ! , ... STONE EXIST.
SHANK \
44. tgallirt ' C. x
B.C.M.U.D. BUTLER CITY LDAITS mi
I � ' I •' AND �,
�" U _ � CemeteCamt• r y
Warr IIII _ _ ________ ___________ � _ _ L11
Houston
Memorial .
Gar ilL
C
f 4 $ f 4UE111111IOI1111l �� WAIN�TI
illizisumiti Ein , grf tidi .6
o
o:
: cAN:u.A
e"l rir�
_ ' l ME p 11111 k1+.. Z � Marys
; MK McLean Road
B.C. i
m Country N 2 V12 ' >��. Ilidi
i
i lif .. Ir li i 1 129 // 7 _ 17 EXHIBIT A
\ LOTU rc BRAZORIA COUNTY ?_� , •� r , J MUNICIPAL UTILITY DISTRICT No. 16
ne DALLAS Creek D
el LOCATION OF
I a T L I KNIGHT,,,, • WASTEWATER TREATMENT PLANT
ci B . C . M . U . D . No. 3 El
JONES & CARTER. INC. MI