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R-2013-046-2013-03-11RESOLUTION NO. R2013-46 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO ENTER INTO A TRANSFERRED WATER AGREEMENT WITH THE COUNTRY PLACE MASTER COMMUNITY ASSOCIATION. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Transfer Water Agreement by and between the City of Pearland and the Country Place Master Community Association , 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 a Transfer Water Agreement with the Country Place Master Community Association. PASSED, APPROVED and ADOPTED this the 11th day of March, A.D., 2013. ATTEST: TOM REID MAYOR / 1 !_ / r 4 a, ;. Y SE ETAR `'' . /1 / Y!�I NG NG APPROVED AS TO FORM: DARRIN M. COKER CITY ATTORNEY Resolution No. R2013-046 Exhibit "A" TRANSFERRED WATER AGREEMENT BY AND BETWEEN COUNTRY PLACE MASTER COMMUNITY ASSOCIATION AND CITY OF PEARLAND, TEXAS THIS AGREEMENT (this "Agreement") is dated effective as of the 25th day of March, 2013 (the "Effective Date"), by and between Country Place Master Community Association (the "CPMCA"), and CITY OF PEARLAND, TEXAS (the "City"), a municipality operating pursuant to its home rule charter. RECITALS A. The City owns wastewater treatment and disposal systems (collectively, the "City Facilities") within its boundaries. B. The City's Facilities discharge water into Clear Creek not currently needed to serve City property. C. The CPMCA owns a golf course and other common areas(the "Property"), which is depicted in Exhibit "A", attached hereto and incorporated herein for all purposes, and has requested from the City that it make Discharged Water available for the CPMCA to use in the maintenance of the Property by extraction from Clear Creek. D. The CPMCA and the City desire to enter into this Agreement to provide the - terms and conditions pursuant to which the City will permit the CPMCA to use a portion of the City's Discharged Water, transferred via Clear Creek, in accordance with the terms and conditions of this Agreement. AGREEMENT NOW THEREFORE, for and in consideration of the mutual promises, covenants, obligations and benefits herein contained, the receipt and sufficiency of which are hereby acknowledged, the CPMCA and the City hereby agree as follows: ARTICLE I DEFINITIONS Section 1.01. Definitions. The terms and expressions used in this Agreement, unless the context shows clearly otherwise and in addition to other defined terms herein, shall have the following meanings: 184867.2 A. The term "Discharged Water" shall mean the wastewater discharged from City owned facilities into Clear Creek. B. The term "Permit" shall mean the Bed and Banks permit issued by the TCEQ to the City for the transfer and reuse of water at the Discharged Water Delivery Point defined herein. C. The term "TCEQ" shall mean the Texas Commission on Environmental Quality. ARTICLE II DELIVERY OF DISCHARGED WATER Section 2.01. Delivery of Discharged Water and Amount, Subject to the remaining provisions hereof, the City agrees to make available 250,000 gallons of Discharged Water per day for delivery to the CPMCA during the term of this Agreement, at the Discharged Water Delivery Point , for use by the CPMCA within the Property. Section 2.02. Discharged Water Quality; Release and Discharge. The Discharged Water made available to the CPMCA hereunder shall consist of water as it occurs at the Discharged Water Delivery Point. Except as provided in this Agreement, the City makes no warranty, either express or implied, regarding the quality of Discharged Water delivered. The CPMCA hereby releases and discharges the City from any and all fines, demands, judgments, liabilities or claims arising by reason of or in connection with the delivery or use of Discharged Water in accordance with this Agreement. Section 2.03. Delivery Points; Title to and Responsibility for Discharged Water. The Discharged Water provided hereunder shall be made available by the City to the CPMCA at the CPMCA's Discharged Water Delivery Point (the "Discharged Water Delivery Point") described in the permit. Title to, possession and control of, and responsibility for the Discharged Water to be delivered shall remain in the City until such time as the Discharged Water reaches the Discharged Water Delivery Point, whereupon, title to, possession and control of, and responsibility for such Discharged Water shall pass to and be assumed by the CPMCA. The CPMCA hereby agrees to pay all reasonable attorneys fees and expenses incurred by the City relating to all claims, demands and causes of actions asserted by any party which arises out of the collection, transportation, use of and delivery of said Discharged Water. 2 Section 2.04. Interconnect Facilities; Meter. The CPMCA agrees to construct, at its sole cost and expense, a lock, valve box and metering equipment (the "Interconnect Facilities") at the Discharged Water Delivery Point. Both parties shall have keys to the lock and shall have right of access to the valve box and meter vault at all times. Section 2.05. Delivery Limitations for Discharged Water. The City agrees to (i) provide the CPMCA up to 250,000 gallons per day of Discharged Water; provided, however that if the City should be prevented, wholly or in part, from furnishing Discharged Water to the CPMCA in accordance with the provisions of this Agreement by any reason which shall include, but not be limited to, unavoidable accidents, breaks or failures in the City's Facilities, power failure, droughts, shortages of Water or for any other cause, including any force majeure event as described in Section 5.06 hereof, then the obligations of the City to provide Discharged Water to the CPMCA. shall be curtailed to the extent and for the duration of such conditions. In such events, the CPMCA shall have no recourse or remedy against the City, and the District shall not otherwise be liable or responsible to the City or to any other person in damages or otherwise as a consequence. Section 2.06. Resale or Exchange; Discharged Water Provided Only to CPMCA. The CPMCA shall not directly or indirectly re -sell or exchange any Discharged Water purchased under this Agreement to any party, person, entity, customer or user without the prior written consent of the City. The CPMCA agrees that the Discharged Water provided by the City shall only be used to serve the Property. Section 2.11. Compliance with TCEQ Rules and Regulations. Unless otherwise set forth in this Agreement, the CPMCA agrees to comply with the TCEQ's rules and regulations, including, but not limited to, the City's Permit conditions. In the event that the CPMCA violates or otherwise fails to comply with any of the TCEQ's rules and regulations or provisions hereof, the CPMCA shall have thirty (30) days from the date of receipt of written notice from the City or any of its agents or employees, to cure such violation. If the City does not receive satisfactory evidence of such cure of compliance within the allotted time period, the City shall have the right, in its sole discretion, to (i) discontinue providing Discharged Water to the CPMCA hereunder until such time as the CPMCA demonstrates to the satisfaction of the District that it has cured such violation and is in full compliance with the TCEQ's rules and regulations; or (ii) terminate this Agreement. ARTICLE III TERM OF AGREEMENT; ALTERNATIVE SERVICE UPON TERMINATION Section 3.01. Term. This Agreement shall be in force and effect from and after the Effective Date for five (5) years ("Initial Term") unless terminated in accordance with any other provision hereof. In the event the CPMCA fails to install interconnect facilities and begin taking Discharged Water at the Delivery Point within eighteen (18) months following execution of this Agreement, the Agreement shall immediately terminate. Notwithstanding the forgoing, this Agreement shall automatically renew for additional five (5) year terms ("Renewal Terms") at the conclusion of each Term. In addition to any other termination 3 provisions contained herein, either party may terminate this Agreement for convenience during a Renewal Term by providing the other party no less than one (1) year written notice. Section 3.02. NO CITY LIABILITY FOR TERMINATION OR SUSPENSION; INDEMNIFICATION. THE CPMCA AGREES THAT THE CITY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES, CLAIMS OR LOSSES INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL DAMAGES, DAMAGES RELATING TO BUSINESS INTERRUPTION, OR DAMAGES RELATING TO LOST BUSINESS OPPORTUNITIES, CLAIMED BY THE CPMCA, TO HAVE BEEN CAUSED, WHETHER DIRECTLY OR INDIRECTLY, BY TERMINATION OF THIS AGREEMENT OR SUSPENSION OF THE DELIVERY OF DISCHARGED WATER PROVIDED HEREUNDER, REGARDLESS OF THE REASON OR CAUSE OF SUCH TERMINATION OR SUSPENSION AND REGARDLESS OF WHETHER SAID TERMINATION OR SUSPENSION OCCURS PRIOR TO THE END OF THE TERM SET FORTH IN SECTION 3.01 ABOVE. ADDITIONALLY, THE CPMCA AGREES TO UNCONDITIONALLY INDEMNIFY THE CITY FOR ANY DAMAGES, CLAIMS OR LOSSES THE CPMCA MAY INCUR BY REASON OF SUCH TERMINATION OR SUSPENSION. hereof: ARTICLE IV REPRESENTATIONS AND WARRANTIES Section 4.01. The City. The City represents and warrants that, as of the date hereof: (a) it is a home -rule municipality duly organized, validly existing and operating under the laws of the State of Texas; (b) Subject to the TCEQ's issuance of the Permit, it has full power, authority and legal right to execute and deliver this Agreement and to perform and observe the terms and provisions hereof; (c) the form, execution, delivery and performance by the City of this Agreement have been duly authorized by all necessary action and does not violate or contravene any law or any order of any court or governmental agency or any agreement or other instrument to which the City is a party or by which it or any of its properties may be bound; and Section 4.02. CPMCA. The CPMCA represents and warrants that, as of the date (a) it is a Property Owners' Association duly organized, validly existing and operating pursuant to Texas law; (b) it has the full power, authority and legal right to execute and deliver this Agreement and to perform and observe the terms and provisions hereof; (c) the form, execution, delivery and performance by the CPMCA of this Agreement has been duly authorized by all necessary action and does not 4 violate or contravene any law or any order of any court or governmental agency or any agreement or other instrument to which the CPMCA is a party or by which it or any of its properties may be bound; (d) this Agreement is a legal, valid and binding obligation of the CPMCA, enforceable against the CPMCA in accordance with its terms; and (e) the Discharged Water purchased hereunder is to be used by the CPMCA at all times for the purpose described herein, and will be utilized by the CPMCA to serve the Property at the CPMCA's sole risk and expense. ARTICLE V MISCELLANEOUS Section 5.01. Assignment. This Agreement shall be binding upon the CPMCA and the City and the CPMCA's respective successors and permitted assigns, and shall be not be assignable, either in whole or in part, by the CPMCA without prior written consent of the City. Section 5.02. Notices. Unless otherwise provided in this Agreement, any notice, communication, request, reply or advice (herein severally and collectively, for convenience, called "Notice") herein provided or permitted to be given, made or accepted by any party to the other (except bills), must be in writing and may be given or be served by depositing the same in the United States mail postpaid, certified, and addressed to the party to be notified, with return receipt requested, or by delivering the same to such party, addressed to the party to be notified, with copies to each party. Notice deposited in the mail in the manner hereinabove described shall be effective on the date of receipt as reflected on the return receipt. Notice delivered in the manner hereinabove described shall be effective on the date of delivery as evidenced in writing by the delivery service. Notice given in any other mannershall be effective when received by the party to be notified. For the purpose of Notice, addresses of the parties shall, until changed as hereinafter provided, be as follows: If to the CPMCA: If to the City: President, Board of Directors 3119 Flower Lane Pearland, TX 77584 City of Pearland, Texas 3519 Liberty Drive Pearland, TX 77581 Attn: City Manager 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 any other address by providing at least fifteen (15) days' written Notice to the other party. Section 5.03. Waiver. No waiver by any party hereto of any breach, default or any of the terms, covenants or conditions of this Agreement shall be construed or held to be a waiver of any same, similar, succeeding or preceding breach, default or term of this Agreement, as the case may be. To be effective, all waivers shall be in writing and signed by the party to be charged. Section 5.04. Default. In the event of a default by either party (other than for non payment), and which default continues for a period of thirty (30) days after receipt of written Notice by the other party, the aggrieved party shall have all available remedies as provided by law, including the right of specific performance and termination of this Agreement. In the event of default by either party hereto either party may employ attorneys to pursue its legal rights, and the prevailing party shall be entitled to payment by the other party of all reasonable attorneys' fees and court costs incurred in such pursuit by the prevailing party. Section 5.05. Severable Provisions. The provisions of this Agreement are severable, and if any provision or part of this Agreement or the application thereof to any person or circumstance shall ever be held by a 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 and shall remain in full force and effect to the fullest extent permitted by law. Section 5.06. Force Majeure. If either party is rendered unable, wholly or in part, by force majeure to carry out any of its obligations under the Agreement, other than payment obligations, then the obligations of either 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 all reasonable diligence. The term "force majeure", as used herein, 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 of the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances, explosions, breakage or accidents to machinery, pipelines or canals, partial or entire failure of the District's water production or transmission facilities or sanitary Sewage collection, treatment and disposal facilities, and any other inabilities of either party, whether similar to those enumerated or otherwise, which are not within the control of either party, and which either party could not have avoided by the exercise of due diligence and care: Section 5.07. Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and, except as otherwise specified herein, all prior or contemporaneous agreements, representations, negotiations or understandings of the parties, whether oral or written, are superseded hereby and merged herein. No subsequent novation, renewal, addition, deletion or other amendment hereto shall have any force or effect unless embodied in a written amendment or other agreement properly executed by the parties. Section 5.08. Captions. The captions appearing at the first of each numbered section or paragraph in this Agreement are included for reference only and shall never be considered or given any effect in construing this Agreement. 6 Section 5.09. Applicable Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas and venue shall be in Harris County, Texas. Section 5.10. Regulatory Requirements. This Agreement and all obligations of the parties hereunder are subject to all rules, regulations and laws which may be applicable by the United States, the State of Texas, the TCEQ, or any other regulatory agency having jurisdiction. Notwithstanding any other provision of this Agreement, the CPMCA shall not have the right to pursue a cause of action against the City on the basis of changes in regulatory requirements which result in the reduction or change in either the quantity or quality of Discharged Water provided hereunder. Section 5.11. Payment of City's Expenses. Notwithstanding anything contained herein to the contrary, the CPMCA hereby agrees that it will be responsible for payment of all of the City's fees and expenses incurred in connection with this Agreement. Such payment will be due and owing to the City upon thirty (30) days of the CPMCA's receipt of a written invoice therefor. This Agreement shall not be construed for or against the party who drafted such Agreement. [Remainder of this page intentionally left blank] 7 IN WITNESS WHEREOF, this Agreement is executed effective as of the Effective Date set forth above. ATTEST: B "CPMCA" COUNTRY COMMUN ASSOCIATION PLACE MASTER Board of Directors "CITY" , President of the CITY OF PEARLAND, TEXAS By: , City Manager APPROVED AS TO FORM: Byr , City Attorney 8 • • I • LIFt4e71 4" Ce.-iC 1-1 Lour,,s'LS 17 ' .. hull/go') ROAD — ' - • I••••• - ; •-••IALITNIUMMa 71 • (fe rims • •••,1•••1111011,•••••••••••••••••••••••,1° ••• 7.=••••••• )4; 47 .1•••••••••• • e :::; •1• • ••••••• ;•,•• • • ',Ir.."... ••• <,;(.1•;•;11. I.-. • •• 1.1 •••• ••••• •••••• • • *4 • ii.41:7317t1 14, r 0(4' , .11 . jirst Pi )(11,0 sit ' \\iisys - its (in t •' .1412 • " 41'1 A -- APPLE BLOSSOM DRIVE B FLOWER FIELD LANE 14.1r Iftl1,1;••:r110,,11•01r! SHADED AREAS A. B, (7, D. 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