R95-74 12-11-95 •
RESOLUTION NO. R95-74
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE, ON BEHALF
OF THE CITY, A WATER PURCHASE CONTRACT BY AND BETWEEN THE
CITY AND BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT
NO. 16 ( "DISTRICT ") FOR PURPOSES OF PROVIDING POTABLE
WATER TO THE DISTRICT.
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 Water Purchase Contract by and between
the City and the District, for purposes of providing potable water
to the District, which is acceptable to the City.
Section 2. The City Manager is hereby authorized and
instructed to execute on behalf of the City the Water Purchase
Contract attached hereto as Exhibit "A" and to execute any other
documents necessary to accomplish the intent and purposes of this
Contract.
PASSED, APPROVED and ADOPTED this the Fa-day of �/�y(� u ,
A. D., 1995.
- /c ) A-- / ti
TOM REID
MAYOR
ATTEST:
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kid 41/(-1° •
Yi1 DA C. BENI EZ
CIT SECRETARY
APPrIVED AS TO FORM:
i k /A& /Lc 4 ��•z
AM 4 S McCULLOUGH
CITY TORNEY
• •
WATER PURCHASE CONTRACT
THE STATE OF TEXAS §
COUNTIES OF BRAZORIA AND HARRIS §
This Water Purchase Contract ( "Contract ") is entered into as
of the 6th day of December, 1995, between the City of Pearland, a
home rule city within Brazoria and Harris Counties, Texas ( "City ");
Brazoria County Municipal Utility District No. 16, a political
subdivision of the State of Texas, organized pursuant to the
provisions of Article 16, Section 59 of the Texas Constitution
( "District "); and Peyton Martin, Trustee, ( "Developer "), a
developer of land within the District.
RECITALS
WHEREAS, the District was created, was organized and exists
for the purpose of furnishing water, sewer and drainage facilities
and services; and
WHEREAS, the City owns and operates a water supply and
distribution system which is located in the vicinity of the
District; and
WHEREAS, Developer is the owner of land located within the
District and is in the need of a supply of water to serve his land.
NOW, THEREFORE, know all men by these presents that for and in
consideration of the mutual promises, covenants, obligations and
benefits hereinafter set forth, the District, the City and the
Developer hereby contract and agree as follows:
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ARTICLE I
WATER SERVICE
Section 1.1. Provision of Water. The City agrees to furnish
the District potable treated water meeting applicable purity
standards of the Texas Natural Resource Conservation Commission,
the U. S. Environmental Protection Agency and any other
governmental agencies having jurisdiction in amounts sufficient to
allow for the full development of all lands located within the
District from time to time. The current land plan of Developer
reflects that at full development, the District will contain
customers utilizing approximately 800 equivalent single family
connections of water service. Both the District and the Developer
agree to use their reasonable, good faith efforts to keep the City
apprised of development plans for land within the District so that
the City may serve the District.
Water shall be provided by the City at the times required by
the District provided that the water trunk line described in
Article II is constructed in accordance with the provisions of this
Contract and thereafter conveyed to the City.
Section 1.2. Points of Delivery. Water shall be delivered
to the point or points of delivery agreed to by the City and the
District (hereinafter "Points of Delivery ").
At each Point of Delivery there shall be constructed a cut -off
valve so that the transmission of water between the two(2) systems
can be controlled. There shall be no meters constructed at the
Points of Delivery.
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Water shall be furnished by the City at a Point or Points of
Delivery between the City's water system and the District's water
system at a minimum pressure of 40 pounds per square inch ( "psi ")
under normal circumstances. Emergency failures of pressure or
supply due to line breaks, flood, earthquake, fires within the
District or other catastrophe shall excuse the City from this
provision during such emergency.
Section 1.3. Shortage. In the event of a shortage of water
or if the supply of water available to the City is diminished, the
supply of water to the District shall be reduced or diminished by
the City in the same ratio or proportion as the supply to the
City's other customers is reduced of diminished. In the event of
any shortage, the City agrees that the District may obtain an
interim water supply from any other source or water supplier during
said shortage; provided the District shall give the City advance
notice if the District is going to obtain water from another
source. If the City is unable to resume a full supply of water to
the District within a reasonable time, the District is authorized
to obtain water from other sources on a permanent basis; provided
the District shall give the City advance notice of its intention to
obtain such new source of water. The City agrees to use its
reasonable good faith efforts to notify the District in advance if
the City knows it is going to incur a water shortage.
Section 1.4. Metered Connections Within the District. Each
water connection within the District shall be metered and each
month the District shall provide the City with the District's
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calculation of the total amount of water consumed by parties within
the District, as reflected by such meters.
Section 1.5. Bills. Upon the City receiving the District's
calculation of the amount of water delivered to customers by the
District, the City shall invoice the District for such water in
accordance with the provisions of Section 1.6.
Section 1.6. Payment and Rates. The District agrees to pay
the City for the water delivered by the City as calculated by the
total amount of water metered at the meters within the District.
City rate assessed by the C y to the District shall be one
The monthly rat Y
Y
and six tenths (1.6) times those rates set by City ordinance for
water service in excess of the minimum amount charged to Multi -Unit
Residences. For example, Ordinance No. 679, in effect as of the
date of this Contract, provides that Multi -Unit Residences shall be
billed $1.41 per 1000 gallon usage for all water used in excess of
the initial 2000 gallons of water use. Consequently, the District
would be charged $2.26 per 1000 gallons of water passing through
the meters located in the District. No other payments shall be due
by the District or its customers for the City providing water to
the District pursuant to this Contract.
Section 1.7 Title to and Responsibility for Water. Title
to, possession, and control of water shall remain in the City until
it passes through the Point(s) of Delivery, where title to,
possession, and control of the water shall pass from the City to
the District.
Section 1.8 Quality of Water. The City shall provide to
the District water of the quality referenced in Section 1.1.
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Except as provided in Section 1.1, the City makes no warranty
express or implied, regarding the quality of the water, including
the implied warranties of merchantability and fitness for a
particular purpose.
Section 1.9 District's Water Supply System. The District
agrees to use its reasonable good faith efforts to operate and
maintain its water supply system in a manner that minimizes water
leakage from its system.
ARTICLE II
WATER TRUNK LINE
Section 2.1. Water Trunk Line. In conjunction with the
initial development of Developer's land within the District, but in
no event later than 24 months from the date hereof, Developer,
acting on behalf of the District, shall complete construction of a
sixteen inch (16 ") diameter water trunk line extending from the
point reflected as point "A" on Exhibit "A" to the point reflected
as point "B" or extending along such other alignment as the City
and the Developer may agree upon (the "Water Trunk Line "). Such
line shall be designed by the District's engineers; shall be
designed and constructed in accordance with the requirements of all
governmental agencies, including the City; and shall include a cut-
off valve at the Point of Delivery.
At such time as Developer lets the contract for construction
of the Water Trunk Line, Developer shall notify the City and
representatives of the City shall have the right to inspect the
construction at any time.
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Section 2.2. Costs of Water Trunk Line The City, the
District, and Developer all acknowledge that the Water Trunk Line
is larger than is necessary to convey water from the City's water
system to the District, but such line is being oversized to provide
capacity for serving the lands outside the District that may be
served by the City. In the event Developer was constructing a
water line solely to extend water service to the District, such
water line would be 12" in diameter.
At such time as Developer advertises for bids for construction
of the Water Trunk Line, he shall also seek alternate bids for
constructing a 12" water line. Thereafter, based upon the bid
accepted by the Developer for construction of the Water Trunk Line,
the District's engineer shall submit to the City its calculation of
the total increase in construction costs related to increasing the
size of the Water Trunk Line from a 12" line to a 16" line,
including engineering fees, construction costs, right -of -way costs,
permit fees, and all other costs reasonably necessary for
constructing the Water Trunk Line (the "Additional Costs "). Such
calculation shall be subject to review and approval by the City.
Within ten (10) days after Developer notifies the City that he
is prepared to let a contract for construction of the Water Trunk
Line, the City agrees to make available an amount of money equal to
the Additional Costs. As construction proceeds, the City shall pay
its pro rata share of each invoice for the construction costs of
the Water Trunk Line directly to the contractor, which share shall
be equal to a fraction the numerator of which will be the
Additional Costs and the denominator will be the total costs of the
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Water Trunk Line. Upon completion of construction of the Water
Trunk Line, Developer shall provide the City with a final
accounting of the construction costs. The construction contract
for the Water Trunk Line may provide that the contractor
will look
solely to the City for payment of the City's pro rata share of the
costs.
2.3. Ownership of Water Trunk Line Upon completion of
construction of the Water Trunk Line, Developer and the District
shall execute a Bill of Sale, Deed or such other conveyance
document reasonably acceptable to the City conveying all of their
rights, title and interest in the Water Trunk Line to the City.
Thereafter, neither the District nor the Developer shall have any
rights to or interest in the Water Trunk Line, except the right for
connect its water s
the District (i) to con system to the Water Trunk Y
Line at the Points of Delivery, and (ii) to receive sufficient
water through the Water Trunk Line to service the full development
of land in the District.
ARTICLE III
MISCELLANEOUS
Section 3.1. Developer's Limited Rights and Duties
Hereunder. The Developer is a party to this Contract solely for
the purpose of assuming the duty to construct the Water Trunk Line
in accordance with Article II. Upon completion of construction of
the Water Trunk Line and conveyance thereof to the City, the
Developer no longer shall be a party to the Contract and shall not
have any rights or obligations hereunder.
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• •
Section 3.2 Books and Records. The City 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 the District to determine the number of customers
being served by the District's water system, the number of
connections thereto, and the quantity of water being provided. It
shall be the duty of the officials of the District to cooperate
fully with the City in obtaining such information. The District's
books, records, and accounts shall be open for inspection at all
reasonable business hours by any authorized representative of the
City.
Section 3.3 Term. This Contract shall extend for a term
of forty (40) years from the date of its execution and thereafter
may be renewed or extended for such term or terms as may be agreed
upon by the District and the City. Notwithstanding the provisions
of this Contract, in the event the District finds a less costly
source of water, the District may terminate this Contract upon one
hundred eighty (180) days advance notice to the City.
Section 3.4. Applicable Law. This Contract is subject to
such rules, regulations, or laws as may be applicable to similar
agreements in this State. The parties agree to cooperate in
obtaining such permits, certificates or other documents as may be
required to comply therewith.
Section 3.5. Binding Contract. This Contract shall be
binding upon the parties, their successors and assigns. The
provisions of this Contract may be modified or altered only by
mutual written agreement of the parties.
TGG\ 60931 .2 \WATERPURCHASECONTRACT 8
•
• •
Section 3.6. Severability. If one or more provisions
contained in this Contract shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision
hereof, and this Contract shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
Section 3.7. Sale of Water Outside Boundaries. In entering
into this Contract the parties contemplate that the District will
sell water solely to inhabitants of the District. Therefore, the
parties agree that the District may sell water purchased hereunder
outside its boundaries on a temporary or permanent basis only upon
the prior written approval of the City.
Section 3.8. Remedies. In enforcing the performance of the
provisions of this Contract all parties 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 Contract 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 Contract brought under or
with relation to this Contract, such prevailing party shall
additionally be entitled to recover court costs and reasonable
attorney's fees from any non - prevailing party to such proceedings.
Section 3.9 Assignment This Contract may not be assigned
in whole or in part by any party without the prior written consent
of the other parties; provided, however, after notification to all
TGG\ 60931 .2 \WATERPURCHASECONTRACT 9
•
parties, the Developer may assign its obligations and rights to all
or a portion of this Contract to any business entity of which
Developer is a principal.
Section 3.10 Notice Any notice required by any provision of
this Contract shall be mailed to the following address:
Brazoria County Municipal Utility District No. 16
C/O Coats, Rose, Yale, Holm, Ryman & Lee
800 First City Tower
1001 Fannin
Houston, Texas 77002 -6707
City of Pearland
Attention: City Manager
3519 Liberty Drive
Pearland, Texas 77581
Peyton Martin, Trustee
C/O Midway Companies
5200 San Felipe
Houston, Texas 77056
Any party may change its address upon written notice to the
other parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Contract in multiple copies, each of equal dignity, on this the 6th
day of December, 1995.
BRAZORIA COUNTY MUNICIPAL UTILITY
DISTRICT NO. 16
a f t t,s ; i ) cx__ Q)
BY:
President, Board of Directors
ATTEST:
Secretar , Board of Directors
CITY OF EARLAND
BY:
Paul Grohman, City Manager
TGG\ 60931 .2 \WATERPURCHASECONTRACT3114 10
•
• •
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• • II
THE STATE OF TEXAS S
COUNTY OF HARRIS §
This instrument was acknowledged before me on fi r. c.e.w► bP_,,. 6, ,
1995 by tl,g� A. 1'�'IacLDnw� 1v r ,,,
a l -.-e.s;e,'C'" of Brazoria County
Municipal Utility District No. 16, a political subdivision, on
behalf of said political subdivision.
,ti GWEN BRIGGS Notary Public i n� for the
i Pia State of T E X A' '
STATE OF TEXAS
r' C O M M ? Name Printed or Tyy
,4 _ My commission expires: 2)1 1)g/
THE STATE OF TEXAS §
COUNTY OF BRAZORIA §
This instrument was acknowledged before me onfee yk /02,.
1995 by Paul Grohman, City Manager, of City of Pearland, a home
rule city, on behalf of said city.
o ,s,,q, ) Notary Public n and for the
TOMMIE JEAN VIAL State of T E X A S
. Notary Public . State of Texas // ` f
"•c•` Commission Expires 2 -25-97 / / U/Y e c�e n Y i4
(.„.� »..���..�����. �. i Name Printed or Typed � a � ; ��
My commission expires
1
THE STATE OF TEXAS §
COUNTY OF HARRIS §
This instrument was acknowledged before me onLl -,
1995 by Peyton Martin, Trustee.
,...,. .. > .r. Nota Pub c i n n a or the
ariv GWEN BRIGGS State of T E X A S
ryPWaW
4
STATE OF TEXAS Cr .r i
Name Printed or Tx s
44 A MyCmnm.Exp 2/21/97 My commission expires:
TGG\ 60931 .2 \WATERPURCHASECONTRACT3114 12