R-2016-079 2016-05-09 RESOLUTION NO. R2016-79
A Resolution of the City Council of the City of Pearland, Texas, approving
approving a funding application to the Texas Water Development Board,State
Water Implementation Fund for Texas (SWIFT) program; for the preliminary
design, pilot testing, final design, and first phase construction of a Surface
Water Treatment Plant and associated water conveyance infrastructure in the
amount of$145,000,000.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That the City Council hereby approves application for Texas Water
Development Board, State Water Implementation Fund for Texas (SWIFT) program; for the
preliminary design, pilot testing, final design, and first phase construction of a Surface Water
Treatment Plant and associated water conveyance infrastructure in the amount of$145,000,000,a
copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes.
PASSED, APPROVED and ADOPTED this the 9th day of May, A.D., 2016.
( / V Zij,
TOM REID
MAYOR
ATTEST:
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SECRRY ••.
APPROVED AS TO FORM:
O.)
DARRIN M. COKER
CITY ATTORNEY
Resolution No. R2016-79
Exhibit "A"
TW DB-0201 a
Rev 1/3/2014
Application Filing and Authorized Representative Resolution(WRD-201a)
A RESOLUTION by the City Council of the City of Pearland,Texas requesting
financial assistance from the Texas Water Development Board; authorizing the filing of an application for
assistance;and making certain findings in connection therewith.
BE IT RESOLVED BY THE City Council OF THE City of Pearland,Texas •
SECTION 1: That an application is hereby approved and authorized to be filed with the Texas Water
Development Board seeking financial assistance in an amount not to exceed$145,000,000 to provide for the costs
of expansion of the City's Surface Water Treatment Plant including preliminary design,pilot testing,final design,
and construction of the first phase(10 MGD) Surface Water Treatment plant and associated water conveyance infrastructure
SECTION 2: That City Manager, Deputy City Manager and Assistant City Manager be and is hereby
designated the authorized representative of the City of Pearland,Texas for purposes of
furnishing such information and executing such documents as may be required in connection with the preparation
and filing of such application for financial assistance and the rules of the Texas Water Development Board.
SECTION 3: That the following firms and individuals are hereby authorized and directed to aid and assist
in the preparation and submission of such application and appear on behalf of and represent the
City of Pearland,Texas before any hearing held by the Texas Water Development Board on such application,to wit:
Financial Advisor: Mr.John Robuck,Vice President-Texas Public Finance
BOSC, Inc.
1401 McKinney St. Suite 1000 Houston,TX 77010
Engineer: Mr.Jeffrey S. Peters, P.E., BCEE
Ardurra Group Inc.
2032 Buffalo Terrace, Houston,Texas 77019
Bond Counsel: Mr. Rick A.Witte
Andrews Kurth
600 Travis, Suite 4200 Houston TX 77002
PASSED AND APPROVED,this the 9th day of May ,2016 .
ATTEST: / 7 mot,'__ - By' A
•.O•
TWDB-0201
Revised 2/21/2013
Application Affidavit (WRD-201)
THE STATE OF TEXAS §
COUNTY OF Brazoria §
APPLICANT City of Pearland, Texas §
BEFORE ME,the undersigned,a Notary Public in and for the State of Texas,on this day
personally appeared Mr.Clay Pearson as the Authorized Representative of the
City of Pearland,Texas ,who being by me duly sworn,upon oath says that:
1. the decision by the City of Pearland.Texas (authority,city,county,corporation,
district) to request financial assistance from the Texas Water Development Board("Board")was made in a public
meeting held in accordance with the Open Meetings Act(Government Code,§551.001,et seq,)and after providing
all such notice as required by such Act as is applicable to the City of Pearland,Texas (authority,city,
county,corporation,district);
2. the information submitted in the application is true and correct according to my best knowledge and
belief;
3. the City of Pearland,Texas (authority,city,county,corporation,district)has no pending,
threatened,or outstanding judgments,orders,fines,penalties,taxes,assessment or other enforcement or compliance
issue of any kind or nature by the Environmental Protection Agency,Texas Commission on Environmental Quality,
Texas Comptroller,Texas Secretary of State,or any other federal,state or local government,except for the
following(if no such outstanding compliance issues,write in"none"):
the pending compliance violations and enforcement negotiations with the Texas Commission on Environmental
Quality concerning the Reflection Bay Water Reclamation Facility and Barry Rose Water Reclamation Facility.
4. the City of Pearland,Texas (authority,city,county,corporation,district)warrants
compliance with the representations made in the application in the event that the Board provides the financial
assistance;and
5. the City of Pearland,Texas (authority,city,county,corporation,district)will comply
with all applicable federal laws,rules,and regulations as well as the laws of this state and the rules and regulations
of the Board.
Offi ' epr se ea#1■-
y Pearson
Title: City Manager
SWORN TO AND SUBSCRIBED IA
RIBED BEFORE ME,by C. kag& V
this et' AA
day of /v,A. / , 20 tip•
MARIA E.RODRIGUEZ
(NOTARY'S SE'. NOTARY PUBLIC,STATE 'TEXAS `�
IrrCO"w Notary Pu lic,State o -exas
Iss1oN vo,IRES / ,
Ems.Fop,fwy 28.2p17
v ur Notify ID*108112214
T W DB-0201 B
Revised 02/21/2013
Application Resolution - Certificate of Secretary (wRD-201b)
THE STATE OF TEXAS §
COUNTY OF Brazoria §
APPLICANT City of Pearinad §
I,the undersigned,Secretary of the City of Pearland Texas,
DO HEREBY CERTIFY as follows:
1. That on the 9th day of May ,20 16 ,a regular/special meeting of the
City of Pearland was held at a meeting place within the City;the duly
constituted members of the City Council of the City of Pearland,Texas being as follows:
C,ameibn nt4bers, Caa bale , tl4 cee1 Qeeot, DLoe ndeccuX 0,14 +itl
and all of said persons were present at said meeting,except the following:
Q0LittAyVieNkbe 1,5 OR.OEWfA(X 1 ecP
Among other business cofisidered at said meeting,the attached resolution entitled:
"A RESOLUTION by the City Council of the City of Pearland, Texas
requesting financial participation from the Texas Water Development Board;authorizing the filing
of an application for financial participation;and making certain findings in connection therewith."
City of Pearland City Council
was introduced and submitted to the for passage and adoption. After
presentation and due consideration of the resolution,and upon a motion made by G Aix 0,t e
and seconded b la ,the resolution was duly passed and adopted by the
t by the following vote:
,3 voted "For" 0 voted"Against" b abstained
all as shown in the official Minutes of the for the meeting held on the aforesaid date.
2. That the attached resolution is a true and correct copy of the original on file in the official records
of the City of Pearland,Texas ;the duly qualified and acting members of the City Council
on the date of the aforesaid meeting are those persons shown above and,according to the records of my office,
advance notice of the time,place and purpose of said meeting was given to each member of the
City Council ;and that said meeting,and deliberation of the aforesaid public business,was open to
the public and written notice of said meeting, including the subject of the above entitled resolution, was posted and
given in advance thereof in compliance with the provisions of Chapter 551 of the Texas Government Code.
IN WITNES§.WHEREOF, I have hereunto signed my name officially and affixed the seal of
said CA e uu-tarw� ,this theHt of pt per{ ,20 j .
''''''11111111%‘‘‘‘‘
1‘‘`````
ED-101
Revised I I/1/2011
STATE OF TEXAS §
COUNTY OF Brazoria
§
SITE CERTIFICATE
Before me, the undersigned notary, on this day personally appeared Clay Pearson, City Manager , a
person whose identity is known to me or who has presented to me a satisfactory proof of identity. After I
administered an oath,this person swore to the following:
(1) My name is Clay Pearson, City Manager of the City of Pearland, Texas . I am over 18 years of age
and I am of sound mind, and capable of swearing to the facts contained in this Site Certificate. The facts
stated in this certificate are within my personal knowledge and are true and correct.
(2) I am an authorized representative of City of Pearland , an entity that has filed an application for fmancial
assistance with the Texas Water Development Board for a(water)(wastewater)project.
LEGAL CERTIFICATION—OWNERSHIP INTEREST
This is to cert ify that the City of Pearland, Texas
(Legal Name of Applicant,i.e.,City,District,etc.)
has acquired or is in the process of acquiring the necessary real property interest, as evidenced by
fee simple purchase or fully executed earnest money contracts, firm option agreements to
purchase the subject property or the initiation of eminent domain procedures, that such
acquisition will guarantee access and egress and such interest will contain the necessary
easements, rights of way or unrestricted use as is required for the project being financed by the
Texas Water Development Board. The legal description is referenced below:
• 3720 CR 48, Rosharon TX 77583
(Location,and Description of Property Interests acquired for Project)
Any deeds or other instruments required to be recorded to protect the title(s)held by
the City of Pearland, Texas
(Legal Name of Applicant)
have been recorded or filed for the record in the County deed records or other required location.
ED-101
Revised 11/1/2011
Not Applicable LEGAL CERTIFICATION—LEASE/CONTRACT
In the alternative, I certify that
(Legal Name of Applicant.i.e..City.District,etc.)
has executed a written lease or other contractual agreement to use the property needed for this
(water) (wastewater) project that extends through , the life of the Texas Water
Development Board loan or grant that will be used to finance this project, either in whole or in
part. A copy of this lease or agreement is attached hereto.
Not Applicable LEGAL CERTIFICATION—PROPERTY EASEMENT
In the alternative, I certify that
(Legal Name of Applicant,i.e.,City,District,etc.)
has executed an express easement to use the property needed for this (water) (wastewater)
project that extends through , the life of the Texas Water Development Board loan or grant
that will be used to finance this project, either in whole or in part. A copy of the express
easement agreement is attached hereto.
EXECUTED this Cell day of Mil , 20_11e_ .
(Signatur
Mr. Clay Pearson
(Print Name)
City Manager
(Title)
Sworn to and subscribed before me by 4:0% on , 20 L(P .
MARIA E.RODRIGUEZ
• ") NOTARY PUBLIC.STATE OF TEXAS
MY COMMISSION EXPIRES
FebnMry 2e.2017 /
u[: NOUry,oMIoe9221-7 11014 f — L . • L.1A ALAI/.
Not. Public in and for the Sta t of •
[SEAL]
My Commission expires: _Qa. •L►ls
WRD-2I3
Revised May,2009
CERTIFICATION REGARDING LOBBYING
The undersigned certifies, to the best of his or her knowledge and belief, that:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of
the undersigned, to any person for influencing or attempting to influence an
officer or employee of any agency, a Member of Congress, an officer or employee
of Congress, or an employee of a Member of Congress in connection with the
awarding of any Federal contract, the making of any Federal grant, the making of
any Federal loan, the entering into of any cooperative agreement, and the
extension, continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid
to any person for influencing or attempting to influence an officer or employee of
any agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this Federal contract,
grant, loan, or cooperative agreement, the undersigned shall complete and submit
Standard Form LLL "Disclosure Form to Report Lobbing," in accordance with its
instructions.
3. The undersigned shall require that the language of this certification be included in
the award documents for all subawards at all tiers (including subcontracts,
subgrants, and contracts under grants, loans, and cooperative agreements) and that
all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed
when this transaction was made or entered into. Submission of this certification is a
prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352.
Any person who fails to file the required certification shall be subject to a civil penalty of
not less at $10,000 and not more than $100,000 for each such failure.
t,..--- 05.6q.Up
Head f Agency or Organization Date
Mr. Clay Pearson, City Manager
Type Name & Title
Name and Address of Agency/Organization:
City of Pearland, Texas; 3519 Liberty Drive Pearland TX 775814
SRF-404
4;16/2015
Debarment / Suspension Certification
1, Clay Pearson , hereby certify that I have checked on the federal
(Authorized Representative of Recipient)
System for Award Management (www.sam.gov) website and determined that
the City of Pearland is not shown as an "excluded party" that is debarred,
(Name of entity)
suspended or otherwise excluded from or ineligible for participation in federal assistance
programs under Executive Order 12549. (See 2 CFR Part 180 and 2 CFR Part 1532 for
additional information on the federal governmentwide debarment and suspension system for
nonprocurement programs and activities.)
I understand that a false statement herein may subject me to penalties under federal and state
laws relating to filing false statements and other relevant statutes.
/ May 9, 2016
Signature Date
City .nager
Title
City of Pearland
Name of Recipient
Verifying prime contractors and subcontractors for construction,equipment,supplies and services: Using the
www.sam.gov website,the recipient must verify prior to awarding the contract that the prime contractor is not listed
as an"excluded party"that is debarred,suspended or otherwise excluded from or ineligible. Once any
subcontractors are known,they also must be verified as not listed as an"excluded party"prior to award of a
subcontract. The recipient must print a dated record of the verification from the www.sam.gov website and retain a
copy that is available for review by TWDB. The prime contractors and subcontractors must be verified prior to the
contract award or the costs may be disallowed.
11
I
I
WRD-208a
12-01-2009
STATE OF TEXAS §
COUNTY OF Brazoria §
SURFACE WATER
AFFIDAVIT
Before me, the undersigned notary, on this day personally appeared
Clay Pearson , a person whose identity is known to me. After I administered an oath to him/
her, upon his/her oath he/she said:
1. I am over 18 years of age, of sound mind, and capable of making this affidavit. The facts
stated in this affidavit are within my personal knowledge and are true and correct.
2. I am an authorized representative of the City of Pearland, an entity that has filed an
application for financial assistance with the Texas Water Development Board for a
project that proposes the development of a new surface water supply source.
3. Does the applicant possess a Certificate of Adjudication and/or Water
Rights Permit(s) issued by the Texas Commission on Environmental
Quality or a predecessor agency authorizing the appropriation and use
of the surface water needed for the Project?
Yes ❑ No n
Please attach a copy of the Certificate(s) of Adjudication and
Water Rights Permit(s).
Item attached: Yes ❑ No ❑
4. Does the applicant have the contractual right to use the surface water
from an entity that enjoys the right to appropriate and use the surface water
needed for the project?
Yes ❑ No ❑
Please attach a copy of any draft or executed water supply contract,
lease or other legal instrument providing contractual authorization
to use the surface water needed for the Project.
Attached is the System Raw Water Availability Agreement between the
Gulf Coast Water Authority (GCWA) and the City of Pearland.
1
WRD-208a
12-01-2009
Item attached: Yes ❑ No ❑
Please identify the Certificate of Adjudication(s) and Water Rights
Permit(s) possessed by the wholesale water provider pursuant to
which the contract, lease or other legal instrument has been or will
be executed. See Exhibit D on Page 25 of the attached System Raw
Water Availability Agreement between the GCWA and the
Certificate of Adjudications: City of Pearland.
Item attached: Yes ❑ No ❑
Water Rights Permit(s): n/a
Item attached: Yes ❑ No ❑
Signed the day oflAkf, 20 I ie .
Name
City Manager
J Title rtalsod Sworn to and subscribed before me by C/4- on M g ,
�'
2 0 1
MARIA E.RODRIGUEZ
NOTARY PUBLIC.STATE OF _
Aty(XX,AMISSION EXPIRES
Evim:Ftibtury 26.2017 r
i•:b
Notary ID*1069221-7 L, I ALAIA r1.(__∎
otary blic in and for the State o j. exas•
[SEAL]
My Commission expires: OQ, 1- e. p20!'1
2
RESOLUTION NO. R2015-72
A Resolution of the City Council of the City of Pearland, Texas,
authorizing the City Manager or his designee to enter into a System
Raw Water Availability Agreement with the Gulf Coast Water Authority
for 10 million gallons per day from the American Briscoe Water Canal
Systems in an estimated amount of $710,000.00 annually.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain the Gulf Coast Water Authority Agreement by and
between the City of Pearland and Brazoria County, 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 Agreement with the Gulf Coast Water Authority.
PASSED, APPROVED and ADOPTED this the 27th day of April, A.D., 2015.
TOM REID
MAYOR
ATTEST:
'e` N41-
p `'I
Yj GL• • G, i''
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•
Or
SEC TARY
'1'1'4,1,11loos%
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
Resolution No. R2015-72
Exhibit "A"
SYSTEM RAW WATER AVAILABILITY AGREEMENT
BETWEEN
GULF COAST WATER AUTHORITY
AND THE
CITY OF PEARLAND
This System Raw Water Availability Agreement ("Agreement") is made and entered into
effective this thee% day of E+0:,` , 2015 (the "Effective Date"), by and between GULF
COAST WATER AUTHORITY (hereafter, "GCWA"), and CITY OF PEARLAND (hereafter.
"Purchaser"). GCWA and Purchaser are sometimes referred to herein as a "Party" or the
"Parties."
1
RECITALS
GCWA is a conservation and reclamation district created and organized under Art. XVI, Sec. 59,
Texas Constitution which operates a system of water rights, canals and water diversion,
pumping, storage and transmission facilities and appurtenances (hereafter, the "System") for
obtaining, diverting, storing and transporting raw water (hereafter, "Water") in order to make the
Water available for beneficial use
Purchaser is a political subdivision of the State of Texas and desires to purchase Water from
GCWA for beneficial use.
GCWA and Purchaser have heretofore entered into that certain "Option Water Agreement"
dated January 26, 1998 (the "Prior Agreement"), pursuant to which GCWA agreed to give
Purchaser an option to purchase up to ten (10) million gallons per day ("MGD") of water from
the "System" as hereafter defined.
Purchaser has heretofore exercised the option to purchase said water and the parties now wish
(i) to enter into this Agreement for GCWA to make available for Purchaser up to zero (0) MGD
of Water from the System for Municipal and Irrigation Uses (as defined herein) in Purchaser's
service area depicted on Exhibit A hereto (the "Service Area") and (ii) to include the option
("Option"), as provided in Section 29 herein, to provide Purchaser the rights to acquire additional
water supplies from GCWA in the future in an amount up to ten (10) MGD (the "Option
Quantity").
GCWA and Purchaser therefore now enter into this Agreement to evidence the obligation of
GCWA to make Water available from the System to Purchaser and the obligation of Purchaser
to pay the System Rate for the Water made available to Purchaser under this Agreement.
regardless of whether or not the Purchaser uses the Water. It is the intent of GCWA and
Purchaser that this Agreement that incorporates an Option and the parties agree that this
Agreement shall completely replace and supersede the Prior Agreement
2
DEFINITIONS
As used in this Agreement, capitalized terms used in this Agreement have the meaning
provided in the Recitals hereto and as provided in this section.
Agreement - this agreement
Board —the Board of Directors of the Gulf Coast Water Authority.
Budgeted Cost of Service - all costs budgeted by the GCWA Board to acquire, construct,
develop, operate. maintain, repair, modify, replace, protect, finance and/or expand the System
or the part of the System consisting of the Canal Division, as appropriate, under the terms of
this Agreement, including the costs of adopting and implementing GCWA's water conservation
and drought contingency plans and rules and regulations relating thereto; principal, interest and
other costs for bonds issued by GCWA to finance the System or the part of the System
consisting of the Canal Division, as appropriate, in the same manner as the Industrial
Customers; and a reasonable reserve fund for operation, maintenance and replacement costs,
all as provided in the definition of System Rate in this Section 2 and in Sections 5 and 11 herein.
To the extent third party costs are included in preparing the Budgeted Cost of Service no mark-
up of such third party costs shall be included.
Canal Division — the physical properties and interests in physical property and associated water
rights of the American System (also referred to as the Canal A System), the Briscoe System
(also referred to as Canal B System), and the Galveston System (also referred to as Canal G
System), acquired by GCWA from the Brazos River Authority, together with all additions to,
replacements in, and expansions and extensions of such facilities, properties and interests in
property made or acquired by GCWA. The Canal Division does not include the System facilities
known as the "Industrial Division" nor does it include the System facilities known as the "Canal J
Division."
Canal J Division - the physical properties and interests in physical property and associated
water rights of the Juliff Canal System and the Chocolate Bayou-Halls Bayou-Mustang Bayou
Canal System acquired by GCWA from the Chocolate Bayou Water Company, together with all
additions to, replacements in, and expansions and extensions of such facilities. properties and
interests in property made or acquired by GCWA. The Canal J Division does not include the
System facilities known as the "Industrial Division" nor does it include the System facilities
known as the "Canal Division."
Contract Quantity — the amount of Water agreed upon to be provided on a firm basis pursuant to
the provisions of Section 3 herein, the initial volume of which shall be delivered at a rate not to
exceed zero (0) MGD.
Delivery Point(s) —the point(s) on the GCWA System at which GCWA will make Water available
to Purchaser under this Agreement as described on Exhibit B hereto.
Delivery Point Facilities — the facilities and associated appurtenances located at or near the
Delivery Point(s) as further provided in Section 4.
Diversion Point(s) —the point(s) at which GCWA will divert Water from the Brazos River or other
Supply Sources from time to time in order to make Water available to the System for the
Purchaser under this Agreement.
Effective Date—such term has the meaning provided in the first paragraph of this Agreement.
Fiscal Year - the GCWA fiscal year from September 1 through August 31, or such other annual
fiscal year period as GCWA may later determine.
GCWA - the Gulf Coast Water Authority, as described in the Recitals of this Agreement.
Industrial Customers — GCWA's industrial customers utilizing the Canal Division and GCWA's
municipal customers receiving Water from the Thomas Mackey Water Treatment Plant under
long-term contracts with GCWA and currently paying rates for Water reserved for them by
GCWA based on the Budgeted Cost of Service (including debt service on bonds issued by
GCWA) for the portion of the System consisting of the Canal Division.
Industrial Division — the GCWA facilities and property consisting of the Industrial Pump Station
and Raw Water Transmission System and the Texas City Reservoir and Raw Water
Conveyance System, including the reservoir and water distribution system (and the lands and
rights of way on which the same are situated) used in supplying water to industrial customers
having plants in the Texas City industrial area and other physical properties acquired by GCWA
from the Industrial Water Company, under that certain "GCWA Agreement" dated June 1, 1971,
between Industrial Water Company and Galveston County Water Authority of Galveston
County, Texas, together with all additions to, replacements in, and expansions and extensions
of said facilities and physical properties heretofore or hereafter made or acquired by GCWA, all
exclusive, however, of any physical properties which are located outside of Galveston County,
Texas, or which are used exclusively for other than industrial water purposes. or which
constitute Special Project Facilities as defined in any GCWA bond covenants, or which are part
of the Canal System.
Industrial Pump Station and Raw Water Transmission System - the GCWA industrial pump
station located just north of FM 1765 and west of railroad tracks west of Highway 146 in Texas
City immediately downstream of the GCWA ten acre terminal water reservoir constructed in
2000 at the north of the GCWA industrial pump station, the GCWA ten acre industrial reservoir
and the raw water transmission system extending from a point immediately south of the take
point for the GCWA Thomas Mackey water treatment plant to the industrial customers having
plants in the Texas City industrial area (and the lands and rights of way on which the same are
situated), all as acquired by GCWA from the Industrial Water Company, under that certain
"GCWA Agreement" dated June 1, 1971, between the Industrial Water Company and Galveston
County Water Authority of Galveston County, Texas, together with all additions to, replacements
in, and expansions and extensions of said facilities and physical properties heretofore or
hereafter made or acquired by GCWA, all exclusive of facilities which are part of GCWA's Canal
System or GCWA's Texas City Reservoir and Raw Water Conveyance System.
Interruptible Water Sales — sales of water to non-long term customers from the System or. as
appropriate, the Canal Division portion of the System, such as sales to irrigators. golf courses,
and similar short term sales.
Irrigation Use - the use of non-potable Water for irrigation of plant nurseries, golf courses, parks,
medians and public rights-of-way and other similar public areas and for storage in amenity
ponds; provided, however, water used for irrigation of crops, trees and pasture land, for
viticulture, silviculture, keeping of animals, wildlife management, aquaculture and other similar
commercial enterprises shall be excluded from the definition of Irrigation Use for purposes of
this Agreement. Irrigation use shall be subject to rules and regulations relating to water
conservation and drought management as provided in Section 14 of this Agreement.
MGD — million gallons per day.
3
Municipal Use - the use of Water for municipal uses as defined in 30 TEX. ADMIN. CODE
§297.1(32), as amended, other than the use of return flows as described in subsection (c) of 30
TEX. ADMIN. CODE §297.1(32). Municipal use of Water supplied to Purchaser by GCWA from
the Supply Sources shall be subject to rules and regulations relating to water conservation and
drought management as provided in Section 14 of this Agreement.
Option Quantity —the amount of Water agreed upon to be provided pursuant to the provisions of
Section 29 herein.
Overage Payment— such term has the meaning provided in Section 7 of this Agreement.
Prior Agreement — that certain "Option Water Agreement" dated January 26, 1998 between
GCWA and Purchaser, as described in the Recitals to this Agreement.
Purchaser — City of Pearland, a political subdivision of the State of Texas, as described in the
Recitals of this Agreement.
Reclaimed Water — treated effluent or discharges produced by Purchaser through Purchaser's
owned and/or operated water and /or wastewater treatment facilities with the source of such
effluent and discharges being Water purchased from GCWA pursuant to this Agreement.
specifically excluding any effluent and discharges sourced from Purchaser's privately-owned
groundwater supplies; provided, however, Reclaimed Water shall not include any such treated
effluent or discharges once received in or discharged into (i) the Brazos River, Jones Creek,
Oyster Creek, Chocolate Bayou, Mustang Bayou, Halls Bayou, (ii) any tributary watercourse of
any of the foregoing watercourses or (iii) any component of the GCWA System.
Service Area — the Purchaser's service area and groundwater reduction plan service area as
described in Exhibit A, as may be amended by Purchaser from time to time, where Purchaser
is allowed to use the Water delivered to it by GCWA pursuant to this Agreement; provided,
however, such Service Area shall be limited to areas where GCWA's Water is authorized to be
used under GCWA's water rights constituting the Supply Sources.
System or GCWA System —the water rights, canals and water diversion, pumping, storage and
transmission facilities and appurtenances for diverting, storing and transporting Water together
with all future extensions, improvements, enlargements. modifications, repairs, additions to and
replacements thereof, from surface water supplies, groundwater supplies, or a combination
thereof, unless specifically excluded from the System by the Board. The System includes the
Canal Division and the Canal J Division. The System shall not include any water treatment
facilities owned by the GCWA for production of potable water nor does it include the raw water
distribution facilities serving the GCWA's Industrial Customers known as the Industrial Division.
System Payment —the dollar amount owed by Purchaser for the Contract Quantity regardless of
whether the total contract quantity of Water is delivered to, diverted by, or used by the
Purchaser. The System Payment is equal to the product of the sum of Contract Quantity
(expressed in millions of gallons per day) times the applicable System Rate times 365 days or
366 days in a leap year. The payment will be divided by 12 and made by Purchaser in 12 equal
monthly payments and due each month as provided herein.
System Rate - the dollar amount per million gallons of the Contract Quantity as established by
GCWA from time to time utilizing the Budgeted Cost of Service for the System or the portion of
the System consisting of the Canal Division, as appropriate, as provided in Section 11 hereof.
4
The System Rate is calculated as follows: Purchaser shall pay the same rate for Water from the
System as GCWA charges its Industrial Customers, which rate shall be based initially on the
portion of the Budgeted Cost of Service for only the Canal Division but which may later be
calculated based on the Budgeted Cost of the System for the entire System if and when the
Industrial Customers pay a rate based on the Budgeted Cost of Service for the entire System.
In each case, such Budgeted Cost of Service shall be reduced by income due and owing to
GCWA from water sales to non-System Rate customers from the System or the Canal Division
portion of the System, as appropriate (being Interruptible Water Sales, such as irrigators or
other similar non-long term customers). The net amount of the Budgeted Cost of Service is
then prorated to each long-term customer paying the System Rate based on their contract
quantities of water under their contracts. An example of the GCWA Budgeted Cost of Service
for Fiscal Year 2015 for its Industrial Customers is shown in Exhibit C attached hereto with the
current System Rate for Industrial Customers being $141.8239 per million gallons of Water.
The Parties recognize that the System Rate is charged to other customers receiving water from
the System under long-term water supply agreements with GCWA similar to this Agreement and
that the System Rate will vary in future years based on changes in the estimated costs included
in the Budgeted Cost of Service and changes in the contract amounts of water committed by
GCWA to Purchaser and other customers charged the System Rate. GCWA agrees the current
System Rate, and as it may be changed in the future, shall be just, reasonable and
nondiscriminatory
Sources - the Supply Sources currently include surface water rights owned by GCWA
and stored water purchased by GCWA from the Brazos River Authority or its customers. Supply
Sources may in the future include surface water rights or supplies, groundwater rights or
supplies or other water supplies acquired, obtained or purchased by GCWA; provided, however,
GCWA agrees not to acquire groundwater rights or supplies from wells in the jurisdiction of the
Fort Bend County Groundwater Subsidence District.
Texas City Reservoir and Raw Water Conveyance System - the GCWA nine hundred acre
reservoir north of Attwater Road in Galveston County and the canal running south from said
nine hundred acre reservoir to a point immediately south of the take point for the GCWA
Thomas Mackey water treatment plant (and the lands and rights of way on which the same are
situated) used in supplying water to industrial customers having plants in the Texas City
industrial area and municipal water providers utilizing the Thomas Mackey water treatment
plant, all as acquired by Seller from Industrial Water Company. under that certain "GCWA
Agreement" dated June 1, 1971, between Industrial Water Company and Galveston County
Water Authority of Galveston County, Texas, together with all additions to, replacements in. and
expansions and extensions of said facilities and physical properties, all exclusive, however, of
any physical properties which are located outside of Galveston County, Texas, or which are
used exclusively for other than industrial water purposes. or which are part of the GCWA's
Canal System or GCWA's Industrial Pump Station and Raw Water Transmission System.
Water — untreated raw water obtained by GCWA from the Supply Sources to be made available
to customers of the System including the Purchaser. The term Water does not include any
water (either groundwater or surface water) owned by Purchaser from sources other than (i)
Water sold to Purchaser by GCWA pursuant to this Agreement or (ii) Water sold by GCWA to
another customer who in turns sells, assigns or otherwise transfers the Water to Purchaser. It
being the intent of the parties that such only GCWA's Water obtained or used by Purchaser is
addressed by this Agreement.
5
3
OWNERSHIP, AVAILABILITY AND CONTROL OF WATER
Contract Quantity for Firm Water
During the term of this Agreement. and any renewal of same as provided in Section 28, GCWA
shall make available and deliver to Purchaser at the Delivery Point(s) the Contract Quantity, on
a firm basis, and Purchaser agrees to take up to the Contract Quantity of Water at the Delivery
Point(s). GCWA makes no representation as to the quality or suitability of the Water in the
System. GCWA represents and warrants that it currently holds the water rights permits
described on Exhibit D hereto which authorize diversion and use of Water in quantities
sufficient to supply the Contract Quantity for Firm Water to Purchaser and covenants to take all
reasonable and necessary actions to maintain such water right permits and any priority dates
associated with the water right permits.
Ownership and Control of Water
Except as provided further herein. Purchaser agrees that it acquires no property rights in any of
the Water made available to it under this Agreement beyond the right to have the Water made
available to it for withdrawal and beneficial use as provided in this Agreement. Purchaser
acquires no rights or interest in the Supply Sources. GCWA owns, and shall exercise dominion
and control over, the Water to be delivered to Purchaser while it is in the GCWA System until it
reaches the Delivery Point(s); after the Water passes through the Delivery Point(s) ownership
of. and dominion and control over. the Water shall transfer to Purchaser. GCWA agrees that
Purchaser may provide Water to third parties for use within the Service Area, provided that
Purchaser shall be responsible for payments under this Agreement, and such use is not
inconsistent with the terms of this Agreement, including without limitation the provisions of
Sections 14 and 16.
Purchaser represents, and GCWA relies on such representation, that all Water to be made
available by GCWA under this Agreement to Purchaser shall be beneficially used solely for the
use(s) provided herein.
Timing, Delivery, and Diversion of Water
To facilitate GCWA's ability to control Water in the System, Purchaser recognizes the need, and
agrees. to notify GCWA of any significant changes in Purchaser's withdrawal rate, practices or
procedures (plus or minus 20% change in the amount of Water withdrawn over a consecutive
24-hour period), including the expected timing of such changes. For scheduled changes,
Purchaser shall notify GCWA within 7 days prior to any such change. Notice of unscheduled
emergency changes shall be as soon as practicable. Likewise, to facilitate Purchaser's ability to
manage Water consumption, GCWA recognizes the need, and agrees, to notify Purchaser in
writing of any anticipated operational changes within GCWA's System within 7 days. and any
unscheduled emergency conditions as soon as practicable.
4
DELIVERY POINT FACILITIES; ACCESS BY PARTIES
6
GCWA shall own and operate the System which shall include all infrastructure necessary for the
diversion and transportation of Water to Purchaser at the Purchaser's Delivery Point(s), but all
Delivery Point Facilities for receiving the Water at the Delivery Point(s) shall be owned and
operated by Purchaser. GCWA hereby grants Purchaser a license on any portion of the Canal
Division real property interests necessary for Purchaser to utilize in order to construct, operate
and maintain Purchaser's Delivery Point Facilities: provided, however, the design and
construction of such Delivery Point Facilities shall first be reviewed and approved by GCWA,
such approval not to be unreasonably withheld, delayed or conditioned. Upon request, GCWA
shall have the right to enter upon and inspect Purchaser's Delivery Point Facilities. including all
metering devices as provided herein.
During times of shortage of Water or at other times if necessary to ensure GCWA's ability to
operate the Canal Division facilities to provide water to all GCWA customers in a lawful and
prudent manner. GCWA may enter upon Purchaser's Delivery Point Facilities to ensure that the
Delivery Point Facilities are being operated in a manner consistent with any applicable laws,
rules or regulations (including state and federal laws and regulations and GCWA's water
conservation and drought contingency plans). Purchaser and GCWA covenant and agree to
comply with all such laws. rules and regulations. If Purchaser is not operating its Delivery Point
Facilities in the manner required by applicable laws. rules or regulations or is otherwise
operating its Delivery Facilities so as to impair GCWA's ability to operate the Canal Division
facilities to provide water to all GCWA customers in a lawful and prudent manner, GCWA shall
immediately notify Purchaser thereof in writing and Purchaser shall immediately conform its
activities in order to be in compliance with such laws. rules or regulations and to not impair
GCWA's ability to operate the Canal Division facilities to provide water to all GCWA customers
in a lawful and prudent manner.
5
PAYMENTS
UNCONDITIONAL NATURE; DATE AND PLACE
Commencing the second month following the month of the Effective Date, GCWA shall invoice
Purchaser monthly for the System Payment due for the previous month. Invoices shall be sent
not later than the 5th day of each month and shall be due and payable by Purchaser no later
than 31 days following the date of the invoice. Purchaser unconditionally agrees to pay GCWA
the System Payment due for the previous month. Payments shall be made by either electronic
transfer approved by GCWA or check received at GCWA's administrative office, currently
located at 3630 FM 1765, Texas City 77591, Galveston County, Texas.
Purchaser shall be unconditionally obligated to pay the amounts due hereunder regardless of
whether or not Purchaser actually receives water hereunder, whether due to Force Majeure or
otherwise. Purchaser agrees that its obligation to pay the amounts due hereunder shall be
absolute and unconditional, irrespective of any rights of set-off, diminution, abatement, recoup-
ment or counterclaim the Purchaser might otherwise have against GCWA or any other person,
and, subject to the rights of, and limitations on, the Parties in Section 23, Purchaser covenants
not to seek and hereby waives, to the extent permitted by applicable law, the benefits of any
rights which it may have at any time to any stay or extension of time for performance or to
terminate, cancel or limit its liability to pay the amounts due hereunder.
Purchaser represents and covenants that the services to be obtained pursuant to this
Agreement are essential and necessary to the operation by Purchaser of its own waterworks
facilities and the provision of waterworks services to its constituents, and that all payments to be
7
made hereunder by it will constitute reasonable and necessary operating expenses of
Purchaser's waterworks system to the extent applicable to Purchaser. and the provisions of all
ordinances or resolutions, as appropriate, authorizing the issuance of all bonds of Purchaser
which are payable from revenues of the Purchaser's waterworks system. Purchaser further
agrees to establish and collect such rates and charges for its waterworks services to be
supplied by its waterworks system as will make possible the prompt payment of all expenses of
operating and maintaining its waterworks system including the payments committed hereunder,
and the prompt payment of the principal of and interest on its obligations, if any, payable from
the revenues of its waterworks system.
Notwithstanding any other provisions of this Agreement, in the event of any conflict between this
section and any other provision of this Agreement, this section shall prevail.
6
REMEDIES FOR NONPAYMENT OR DEFAULT BY PURCHASER
Subject to the rights of, and limitations on, the parties in Section 25, should Purchaser fail to
make any payment to GCWA when due hereunder or otherwise be in material default under this
Agreement, Purchaser shall have 30 days after receiving written notice of default from GCWA
specifying the nature of the default to cure the alleged default: provided, however, a party shall
be considered in compliance with the Agreement if such party is making reasonable efforts to
cure such breach within 30 days after receiving such notice and attains compliance with the
Agreement within 90 days after receiving such notice. If Purchaser fails to cure such default
within the aforementioned time, GCWA at its sole option and in addition to and without impairing
any other remedy available to it on account of the default, may elect under this Section 6 to
either (i) suspend Water deliveries to Purchaser under this Agreement, or (ii) terminate this
Agreement if, and only if, Purchaser fails to make the payments required under this Agreement
to GCWA for a period of three (3) months or longer. Nothing in this Agreement shall be
construed in any manner so as to abridge, limit or deprive either party hereunto of any means
that it would otherwise have of enforcing any right or remedy either in law or in equity for breach
of any of the provisions hereof. Further, Purchaser agrees that this Agreement constitutes an
agreement for provision of goods and services to the Purchaser by GCWA.
7
REMEDIES FOR OVERAGE
Purchaser recognizes that any withdrawal of Water by Purchaser in excess of its Contract
Quantity may impact GCWA's ability to make available Water to GCWA's other customers.
Purchaser agrees that if for any reason it needs to exceed the Contract Quantity, Purchaser will
give written notice to GCWA in advance of the need for such additional Water and in such
notice will state the reason for the additional need, the additional amount (gallons per day) of
Water needed to be made available, and the anticipated duration (days) of the need and will not
take such excess Water until it receives written notice of approval from GCWA GCWA, in its
sole discretion, may make all, a portion or none of the requested additional Water available.
Nothing contained herein shall obligate the GCWA to provide Water in excess of the Contract
Quantity nor may Purchaser rely on additional Water being made available in excess of the
Contract Quantity.
If Purchaser, for any given sixty-day (60-day) period, takes a quantity of Water that when
averaged over the 60-day period is 10% or more greater than Purchaser's Contract Quantity,
Purchaser's Contract Quantity shall, at the GCWA's option, increase to the amount of Water
8
taken over such 60-day period divided by sixty (60) days. Each exercise of such option by the
GCWA shall be accomplished by giving written notice to Purchaser within forty-five (45) days
after the end of such 60-day period. Such notice shall specify an effective date of the increase
that shall be the next day after the date such 60-day period ended or a date thereafter as
specified by GCWA. Each exercise by GCWA of such option shall increase the Contract
Quantity on the effective date of the increase, and the new Contract Quantity shall remain in
effect hereunder until the termination of this Agreement unless further increased or decreased
pursuant to the provisions of this Agreement. GCWA's failure to exercise such option with
respect to any given 60-day period shall not be deemed a waiver of the right to exercise such
option with respect to other 60-day periods. Periodic extraordinary events such as droughts,
leaks, breaks or hurricanes shall not be considered in calculating Contract Quantities under this
section and Purchaser's Contract Quantity will not be increased due to water used as a result of
extraordinary events such as droughts, leaks, breaks or hurricanes. Any amount of increase in
the Contract Quantity pursuant to this section shall automatically result in an equal reduction in
the amount of Option Quantity available to be purchased by Purchaser in the event Purchaser
exercises its rights under the Option provided in Section 29 and shall require Purchaser to
comply fully with all applicable terms of the Option as to the increased Contract Quantity.
Notwithstanding anything to the contrary in this Agreement, if Purchaser's overage exceeds the
Contract Quantity (including any Option Quantity included in the Contract Quantity), Purchaser
may withdraw such Water in excess of the Contract Quantity (including any Option Quantity
included in the Contract Quantity) only if GCWA has Water available to be supplied to
Purchaser and such supply will not impair GCWA's obligations to meet the obligations of GCWA
to its other customers.
Once Purchaser has no additional rights to any Contract Amount of Water under its Option, then
if Purchaser, for any given 60-day period, takes a quantity of Water that when averaged over
such 60 days is greater than Purchaser's Contract Quantity, then Purchaser shall pay to GCWA
for such monthly billing periods, in addition to the amounts otherwise payable by Purchaser
under this Agreement, for the amount of Water in excess of the Contract Quantity, one and one-
half (1.5) times the System Rate then in effect. Seller shall have no obligation to deliver to
Purchaser under this Agreement Water in excess of Purchaser's Contract Quantity, and any
excess Water which may be so delivered from time to time shall not have the effect of
increasing Seller's obligation.
8
REGULATORY COMPLIANCE REQUIRED
Purchaser agrees that it will not intentionally withdraw, impound or use Water under this
Agreement unless such withdrawal, impoundment or use is made in accordance with the
statutes and rules of the State or other regulatory authority applicable to the Supply Sources
and with the terms of any permits for the Supply Sources applicable to such withdrawal,
impoundment and use of the Water and in a manner consistent with the limitations set forth in
this Agreement.
9
PURCHASER DELIVERY POINT FLOW METERING
Purchaser and GCWA agree that the Delivery Point meters shall be tested and calibrated for
accuracy by Purchaser once each Calendar Year at intervals of approximately 12 months, and a
report of such test and calibration shall be furnished to GCWA. GCWA shall be given at least 5
days prior notice of the time of any test and calibration of a meter and GCWA shall have the
9
right to have a representative present at the test to observe the test and any adjustments found
thereby to be necessary. In the event any questions arise at any time as to the accuracy of a
meter, the meter shall be tested within a reasonable period of time following such request for
testing by GCWA. The expense of such test is to be borne by GCWA if the meter is found to be
correct and by Purchaser if it is found to be incorrect. Readings that vary within 5% of accuracy.
plus or minus, shall be considered correct. If, as a result of any test, any meter is found to be
registering inaccurately (i.e., currently in excess of 5% plus or minus of accuracy), then the
readings of such meter shall be corrected at the rate of its inaccuracy for any period which is
definitely known and agreed upon, but in case the period is not definitely known and agreed
upon, the period shall be extended back 90 days from the date of the initial GCWA request for
meter testing, and the records of readings shall be adjusted accordingly. Following each test of
a meter, Purchaser shall cause the same to be calibrated to register accurately and a report
forwarded to GCWA.
10
REPORTING
Purchaser agrees that it will keep accurate records of the monthly readings from the meters.
These records shall be subject to inspection by GCWA at reasonable times and places and
made available to GCWA electronically. In addition, Purchaser will make available to GCWA, at
GCWA's cost, SCADA system metering data for Water delivered to Purchaser, including
allowing GCWA (at GCWA's expense) to connect its SCADA system to Purchaser's Delivery
Point Facilities meters for the sole purpose of monitoring Purchaser's Delivery Point Facilities
meters.
Sixty (60) days prior to adjusting the System Rate, GCWA agrees to provide annual budget data
and calculations used to support the proposed Budgeted Cost of Service and System Rate. If
desired, Purchaser may examine detailed records, and any such examination shall be at
Purchaser's sole cost and expense, and shall be performed at any time during GCWA's regular
business hours. Any such examination shall not commence until Purchaser has provided
GCWA with ten (10) days' written notice. For the purpose of such examinations, GCWA shall
make available to Purchaser for inspection and copying in accordance with the Texas Public
Information Act (Texas Government Code, Chapter 552) all non-privileged books, records,
documents and other evidence of accounting procedures or practices maintained to establish
the System Rate and the Budgeted Cost of Service.
11
SYSTEM CAPITAL COSTS
Purchaser and GCWA understand that GCWA may desire to replace, rehabilitate, modify,
extend, expand, enlarge, or add water rights or supplies. facilities or other property to the
System, and that, in connection with any such replacement, rehabilitation, modification,
extension, expansion, merger, enlargement or addition. GCWA may incur additional costs and
may issue bonds payable from the revenues of this Agreement. The budgeted costs (including
principal and interest on such bonds) estimated to be incurred by GCWA related to such
replacement, rehabilitation, modification, extension, expansion, enlargement or addition shall be
included in the Budgeted Cost of Service for the System. Inclusion of any such costs in the
Budgeted Costs of Service applicable to the calculation of the System Rate for Purchaser is
subject to the other provisions of this Agreement. Purchaser hereby agrees to furnish GCWA
with such financial information, data, projections and related information as may be reasonably
required by GCWA in connection with the sale by GCWA of such bonds in order to comply with
10
I
all applicable laws, rules and regulations, including the approval of GCWA's bonds by the
Attorney General of the State of Texas.
12
ACQUISITION OF FUTURE SUPPLY SOURCES
GCWA and Purchaser recognize the need for GCWA to acquire additional Supply Sources to
supplement the current Supply Sources in order to improve the reliability of current Supply
Sources for Purchaser and GCWA's other customers. In that regard, GCWA agrees that, if and
to the extent necessary to effect an equitable apportionment of such additional costs, it will
impose a "buy-in fee," "capital recovery fee," "surcharge" or similar charge on customers
(whether existing or new) who enter into new or amended long-term water supply agreements
with GCWA similar to this Agreement that impose increased demands on GCWA for Water from
the System. Such fees or charges shall be designed to recoup from such customers imposing
increased demands on the System the portion of the future costs for increasing or
supplementing the Supply Sources that are reasonably attributable to the increased demands
placed on the Supply Sources by such customers as opposed to the portion of such costs
reasonably attributable to improving the reliability of the Supply Sources for meeting the current
supply commitments of GCWA to existing customers of the System.
13
OPERATION, MAINTENANCE AND REPLACEMENT RESERVE FUND
GCWA and Purchaser recognize and agree that GCWA's current Budgeted Cost of Service
includes provision for a reserve fund for operation, maintenance and replacement costs. The
current amounts in the reserve fund were accumulated from prior payments from customers of
the System and through annual payments for previous years' Budgeted Costs of Service.
GCWA agrees to continue its practice of requiring new customers or existing customers that
increase the amount of water purchased from GCWA to contribute appropriate amounts to the
reserve fund in order to equitably distribute the burden of the reserve fund over all customers of
the System. Currently, GCWA has established the reserve fund at a level equal to six (6)
months of the annual amount of the Budgeted Cost of Service, and shall maintain the reserve
fund at or about the same level in calculating the System Rate. Neither Purchaser nor any other
customers of GCWA shall be entitled to any refund of any portion of the reserve fund.
14
CONSERVATION OF WATER
It is the intent of the parties to this Agreement to provide to the maximum extent practicable for
the conservation of Water, and Purchaser agrees that it is a condition of this Agreement that it
shall reasonably maintain and operate its facilities in a manner that will promote beneficial use,
and prevent unnecessary waste, of Water and will comply with any applicable water
conservation plan and drought contingency plan of GCWA and any rules and regulations of
GCWA implementing or pertaining to same pertaining to the Water supplied to Purchaser and
other customers of the GCWA System. GCWA, in accordance with applicable law or regulation,
may from time to time adopt a water conservation plan and drought contingency plan and
reasonable rules and regulations pertaining to and implementing water conservation and
drought management for Water supplied by GCWA to Purchaser and other customers of the
GCWA System_ Purchaser and GCWA agree that GCWA's water conservation plan and
drought contingency plan, and the rules and regulations pertaining thereto, may include
programs, incentives and disincentives to encourage more efficient use or Water and reduction
1 1
of waste of Water. Purchaser shall adopt and implement a water conservation and drought
contingency plan, as required by applicable law, which may be reviewed by GCWA for the use
of Water made available and withdrawn by Purchaser pursuant to this Agreement. If required
by applicable law or regulation Purchaser agrees that, in the event Purchaser furnishes Water
or water services using the Water supplied to Purchaser to a third party that in turn will furnish
the Water or provide water services using the Water supplied to Purchaser under this
Agreement to the ultimate consumer, the requirements relative to water conservation plans and
drought contingency plans shall be met through contractual agreements between Purchaser
and the third party providing for the establishment and implementation of a water conservation
plan and drought contingency plan in compliance with such applicable law or regulation
regarding the Water supplied by GCWA.
15
WATER QUALITY
THE WATER THAT GCWA OFFERS TO SELL TO PURCHASER IS NON-POTABLE, RAW,
AND UNTREATED. PURCHASER HAS SATISFIED ITSELF THAT SUCH WATER IS
SUITABLE FOR ITS NEEDS. GCWA EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE
QUALITY OF THE RAW WATER OR SUITABILITY OF THE RAW WATER FOR ITS
INTENDED PURPOSE. GCWA EXPRESSLY DISCLAIMS THE WARRANTIES OF
MERCHANTABILITY AND FITNESS. PURCHASER AGREES THAT ANY VARIATION IN THE
QUALITY OR CHARACTERISTICS OF THE RAW WATER OFFERED FOR SALE AS
PROVIDED BY THIS AGREEMENT SHALL NOT ENTITLE PURCHASER TO AVOID OR LIMIT
ITS OBLIGATION TO MAKE PAYMENTS PROVIDED FOR BY THIS AGREEMENT. THERE
ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION CONTAINED IN
THIS AGREEMENT. PURCHASER ASSUMES FULL RESPONSIBILITY WITH RESPECT TO
THE TREATMENT OF THE WATER PRIOR TO ITS DISTRIBUTION FOR HUMAN
CONSUMPTION OR ANY OTHER USES. NOTWITHSTANDING THE FOREGOING, GCWA
WILL UTILIZE ITS BEST EFFORTS TO PRESERVE THE QUALITY AND INTEGRITY OF
WATER PROVIDED PURSUANT TO THIS AGREEMENT.
16
RESALE OF WATER
Should Purchaser determine that it has Water surplus to its anticipated needs from the Water,
Purchaser may with prior written notice to GCWA (i) provide Water to a third party user within
the Service Area or (ii) notify GCWA as to the amount of Water no longer needed to be made
available to Purchaser. If Purchaser provides Water to a third party within the Service Area,
pursuant to subpart (i) above. Purchaser shall remain responsible for the payments required
herein. If notice is provided to GCWA as stated in subpart (ii) above, GCWA will use
reasonable efforts to find a third party who is able and willing to pay for such availability for a
period coterminous with the period of time Purchaser determines such Water is surplus to its
needs. If GCWA is successful in finding and contracting with such a third party suitable to it to
acquire Purchaser's interest in Purchaser's available surplus for said period of time, this
Agreement will be amended accordingly. If GCWA finds a third party who is able and willing to
pay for such availability for a period to the end of or beyond the term of this Agreement, GCWA
shall release Purchaser from a portion of this Agreement to the extent the new customer is
bound to GCWA in an agreement with similar provisions as contained in this Agreement.
17
RECLAIMED WATER
12
All rights to Reclaimed Water originating from the Water made available to Purchaser under this
Agreement that may be beneficially reused before disposal or discharge, and that is neither
disposed of nor discharged or otherwise allowed to flow into (i) the Brazos River. Jones Creek,
Oyster Creek, Chocolate Bayou, Mustang Bayou, Halls Bayou, (ii) any tributary watercourse of
any of the foregoing watercourses or (iii) any component of the GCWA System shall remain
vested in Purchaser.
18
CURTAILMENT PROVISIONS
Pursuant to the provisions of Texas Water Code §11.039, in the event of a drought or if for any
other reason (including Force Majeure) Water in the System becomes in short supply, GCWA
shall fairly apportion and ration the available Water supply from the System among all its
customers, including Purchaser, in accordance with the applicable law on distribution and
allocation of water during periods of shortage. GCWA agrees that any allocation of Water due
to a drought or shortage as provided in this Section shall be consistent with applicable laws and
regulations of the State of Texas and any water conservation or drought contingency plans
adopted by GCWA and then in effect.
19
OTHER GCWA CONTRACTS
GCWA may adjust the System Rate and enter into agreements with other parties regarding the
System, including its operation and maintenance and the storage, release and supply of Water
therefrom; provided, however, that such adjustments to the System Rate and such agreements
(i) shall not discriminate against Purchaser in relation to the Supply Sources, the Budgeted Cost
of Service or the System Rate in a manner inconsistent with applicable laws or regulations of
the State of Texas and its agencies; or (ii) provide for the sale of perpetual water rights unless
GCWA continues to be able to make available to the Purchaser the Contract Quantity; and (iii)
shall not be entered into by GCWA if it finds that the agreement will render GCWA unable to
provide the Contract Quantity to Purchaser.
20
FORCE MAJEURE
In the event either party hereto is rendered unable, wholly or in part, by force majeure to carry
out any of its obligations under this Agreement, then the obligations of such Party, to the extent
affected by such force majeure and to the extent that due diligence is being used to resume
performance at the earliest practical time. shall be suspended during the continuance of any
inability so caused to the extent provided but for no longer period. As soon as reasonably
possible after the occurrence of the force majeure relied upon, the Party whose contractual
obligations are affected thereby shall give notice and full particulars of such force majeure to the
other Party. Such cause, as far as possible, shall be remedied with all reasonable diligence.
The term "force majeure" means acts of God, strikes, lockouts or other industrial disturbances,
acts of the public enemy, orders of any kind of the government of the United States or the State
of Texas or any civil or military authority other than a Party to this Agreement, insurrections,
riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts,
droughts, arrests, civil disturbances. explosions, breakage or accidents to machinery, pipelines
or canals, partial or entire failure of the water supply, and any other inabilities of either Party
similar to those enumerated, which are not in control of the Party claiming such inability. It is
13
understood and agreed that the settlement of strikes and lockouts shall be entirely within the
discretion of the Party having the difficulty and that the above requirement that any force
majeure shall be remedied with all reasonable dispatch, but shall not require the settlement of
strikes and lockouts by acceding to the demands of the opposing party or parties when such
settlement is unfavorable to it in the judgment of the Party having the difficulty.
21
WAIVER
Any waiver at any time by any party of its rights with respect to default or any right granted
under this Agreement shall not be deemed a waiver of such rights with respect to any
subsequent default or matter.
22
NOTICES AND CERTIFICATIONS
Notices and certifications provided for in this Agreement shall be in writing. The same shall be
delivered by mailing certified mail, postage paid, return receipt requested, or hand delivered, to
the respective parties at the following addresses:
GCWA: GULF COAST WATER AUTHORITY
Attn: General Manager
3630 FM 1765
Texas City, Texas 77591
Telephone: (409) 935-2438
Purchaser: CITY OF PEARLAND
Attn: City Manager
3519 Liberty Dr.
Pearland, TX 77581
Telephone: (281) 652-1600
Either party may change its address as shown above by written notice to the other party.
23
OTHER REQUIREMENTS
This Agreement is subject to all conditions, provisions. and limitations included in GCWA's
water rights, permits or contracts for the Supply Sources from the applicable State agency and
any third party suppliers. Further, this Agreement is subject to all applicable Federal, State and
local laws, and any applicable ordinances. rules, orders and regulations of any local, State or
Federal governmental authority having jurisdiction. However, nothing contained in this
Agreement shall be construed as a waiver by either party of any right to question or contest any
law, ordinance, order, rule, or regulation of any governmental authority. GCWA agrees that,
except to the extent required by applicable laws or regulations of the State of Texas and its
agencies or as required by current contracts of GCWA, it will not adopt any rules or regulations
or enter into any future contracts with new customers that will cause the charges provided in this
Agreement for Purchaser to be unjust, unreasonable or discriminatory in contravention of the
applicable provisions of the Texas Water Code or to discriminate against Purchaser in the
14
allocation of Water in a manner inconsistent with applicable law, including Section 11.039.
Texas Water Code. Notwithstanding the previous sentence, Purchaser recognizes that GCWA
may adopt and implement water conservation and drought contingency plans as authorized by
law and as provided in Section 18.
24
SEVERABILITY
The provisions of this Agreement are severable, and if for any reason any one or more of the
provisions contained in this Agreement shall be held to be invalid, illegal, or unenforceable in
any respect. the invalidity, illegality, or unenforceability shall not affect any other provisions of
this Agreement and this Agreement shall remain in effect and be construed as if the invalid,
illegal, or unenforceable provision had never been contained in the Agreement and the parties
agree to attempt in good faith to amend this Agreement, if necessary, to implement the invalid,
illegal, or unenforceable provision in a manner that is valid, legal and enforceable.
25
TERMINATION
This Agreement may be terminated by either party for material breach of the terms of this
Agreement or as provided herein; provided, however, notwithstanding anything in this
Agreement to the contrary, if Purchaser terminates this Agreement at a time when GCWA has
bonds outstanding and payable from the revenues of the System, including revenues from this
Agreement (the "Then Outstanding Bonds"), except to the extent provided below in (1), (2) and
(3) of this section, as appropriate, Purchaser shall continue to be bound thereafter to pay its
proportionate share (based on Purchaser's Contract Quantity as compared to the Contract
Quantities of all other GCWA customers purchasing Water from the System at the time of the
termination) of debt service on the Then Outstanding Bonds, such obligation to survive
termination of this Agreement (the "Continuing Obligation"); provided, however,
(I) if, and to the extent, GCWA is able to find new customers or old customers who
agree to increase their contracted amounts of supply and who make payments to
GCWA for the Purchaser's pro rata share of the debt service on the Then
Outstanding Bonds of GCWA, GCWA agrees to credit such funds. as and when
received. against Purchaser's Continuing Obligation to the extent such amount is
attributable to the debt service on the Then Outstanding Bonds; or
(2) in the event more than one customer of GCWA has a Continuing Obligation, any
such revenues received by GCWA from new customers or old customers who
increase their supplies shall be credited pro rata among Purchaser's and the other
customer(s)' Continuing Obligations based on the relative amounts of the Continuing
Obligations of all such customers with Continuing Obligations; or
(3) if permitted under the applicable bond resolutions authorizing GCWA's Then
Outstanding Bonds, Purchaser may be released from its Continuing Obligation if the
Purchaser (at Purchaser's expense) provides for the defeasance or redemption by
GCWA of the Then Outstanding Bonds attributable to Purchaser. it being
understood, however, that Purchaser shall not be relieved from any such Continuing
Obligation until such time as such pro rata share of the Then Outstanding Bonds
have been defeased or redeemed and Purchaser has made complete payment of
any accrued but unpaid liabilities under this Agreement at the time of termination;
and
15
(4) Purchaser shall pay all reasonable expenses incurred by GCWA in implementing
subsections (1)-(3) above.
Further, (i) neither party may terminate this Agreement or suspend delivery of Water or
payments required herein unless the party seeking termination or suspension of the Agreement
has provided the other party with written notice of such termination or suspension with an
explanation of the breach and an opportunity to cure such breach within 30 days of such notice
and (ii) in the event Purchaser terminates this Agreement, such termination shall be effective at
the end of GCWA's fiscal year which immediately succeeds the otherwise effective date of
Purchaser's termination. A party shall be considered in compliance with the Agreement if such
party is making reasonable efforts to address such breach within 30 days of such notice and
attains compliance with the Agreement within 90 days of such notice.
26
ASSIGNMENT
This Agreement may be assigned by GCWA at its discretion with prior written notice to the
Purchaser, but only so long as such assignment is to another governmental entity that assumes
GCWA's obligations herein and is capable of performing such obligations. With prior written
notice to GCWA, this Agreement may be assigned by Purchaser, in whole or in part, to a
successor in interest or an affiliate of Purchaser that is the owner of land within the Service Area
of Purchaser provided that the assignee will not require a change in the Diversion Point(s),
Delivery Point(s), Contract Quantity, purpose of use of the Water or the Service Area but only so
long as such assignee assumes Purchaser's obligations herein, or the appropriate part thereof,
and is capable of performing such obligations. Any other assignment by either party may be
made only with the prior written consent of the other party, such consent not to be unreasonably
withheld, delayed or conditioned. In the event any assignment is made more than one year
after the parties have communicated with each other regarding any needed amendments to this
Agreement as contemplated in the second paragraph of Section 29 below, the parties agree to
communicate with each other regarding the need for any amendments to this Agreement within
45 days after said assignment.
27
TERM OF AGREEMENT;AGREEMENT TO CONSIDER AMENDMENTS PERIODICALLY
The term of this Agreement shall begin on the Effective Date and shall end the later of August
31, 2027 or the date of final payment of any bonds or other indebtedness issued by GCWA and
outstanding and payable from the revenues of this Agreement; provided, however, subject to
the rights of, and limitations on, the parties in Sections 6 and 25, this Agreement may terminate
as provided herein due to (i) any non-payment of Payments required herein, (ii) Purchaser's
material default, (iii) GCWA's material default, (iv) the effective date of a mutual agreement in
writing between GCWA and Purchaser to terminate the Agreement, or (v) requirement by
regulatory authority. The parties agree that upon expiration of the term of this Agreement on
August 31, 2027, the parties will extend the term of this Agreement under terms and conditions
for Water from the Authority's System then prevailing from the Authority for other similarly-
situated customers, which extension shall be evidenced by mutual agreement in writing
between GCWA and Purchaser.
Notwithstanding the foregoing. GCWA and Purchaser agree that due to changes in
circumstances over the term of this Agreement, it is in their mutual and respective interests to
periodically consider amendments to this Agreement during the term hereof. Accordingly, within
I6
sixty (60) days prior to or after each 5-year anniversary of the Effective Date of this Agreement
the parties agree to communicate with each other to identify, negotiate and attempt to approve
any amendments to this Agreement necessary or appropriate to accommodate the needs and
interests of the parties, or to address other circumstances, which have changed since the
Effective Date. The intent of this paragraph is to establish a relationship between the parties to
aid in the resolution of issues that hereafter arise so as to enable the operation and use of the
System by GCWA to meet the needs of Purchaser and the other customers of the GCWA
System in a manner which comports with sound public policy.
28
RECITALS AND EXHIBITS INCORPORATED
The recitals contained in the preamble hereof and the exhibits hereto are hereby found to be
true, and such recitals and exhibits are hereby made a part of this Agreement for all purposes.
29
OPTION TO INCREASE CONTRACT QUANTITY
Purchaser desires to obtain an option to acquire an additional supply of Water from the Canal
Division for future use from GCWA in an amount not to exceed ten (10) MGD.
The purpose of this Option is to provide a mechanism for Purchaser to require GCWA to
increase the Contract Quantity so that Purchaser can purchase an additional amount of the
available Water from GCWA for use at Purchaser's Delivery Point(s) in an amount not to exceed
the Contract Quantity plus the Option Quantity and in all respects subject to the terms,
conditions and restrictions set forth herein.
Option Quantity
For and in consideration of the payments described herein, GCWA agrees that Purchaser shall
have the option. exercisable as set out herein, to buy an additional amount of Water up to the
Option Quantity from GCWA through GCWA's System.
Price of Option
During the term of this Option, Purchaser agrees to pay monthly to GCWA at its offices in Texas
City, Texas, as "Option Payments" an amount equal to twenty percent (20%) of the System
Rate times the Option Quantity times 365 divided by 12. GCWA will invoice Purchaser monthly
for the Option Payment by the 5th day of each month. Payment by Purchaser will be due thirty
(30) days after the date of the invoice.
Exercise of Option
At any time during the term of this Option, Purchaser may exercise its option to buy additional
Water in any amount up to the Option Quantity by giving GCWA ninety (90) day's written notice.
Such amount may be less than, but may not be more than, the Option Quantity Such notice
shall state the amount of Water, in millions of gallons per day, which Purchaser wishes to
purchase. Purchaser may choose to exercise the option in portions during the term of this
Option. If such notice is for less than the Option Quantity, Purchaser's option to buy Water
shall continue as to the unexercised portion
17
Result of Exercise of Option
If Purchaser notifies GCWA of the exercise of its option to purchase all or any part of the Option
Quantity during the term of this Agreement as set out above, then this Agreement shall
automatically be amended to increase the Contract Quantity by the amount of the Option
Quantity taken by Purchaser (subject to all other terms of this Agreement including the payment
of the System Rate by Purchaser). Upon implementation of any such amendment to this
Agreement, the Option shall terminate as to the exercised portion of the Option Quantity but
otherwise continue in effect as to any unexercised portion of the Option Quantity for the
remainder of the term of this Agreement.
Term and Termination of Option
Notwithstanding the term of the Agreement, the term of the Option shall be for a period of three
(3) years from the Effective Date. GCWA may terminate the Option for any nonpayment, which
continues for ninety (90) days after written notice to Purchaser. Purchaser may terminate the
Option on six month's written notice to GCWA.
Renewal of Option
If the Option remains in force for the entire three (3) year term, the Option shall automatically
renew for one consecutive additional three (3) year term unless Purchaser provides written
notice of its intent to not renew the Option received by GCWA not later than ninety (90) days
prior to the expiration of the original three (3) year term.
GCWA Special Termination Right of Option
Notwithstanding anything herein to the contrary, during the term of this Option or any renewal
thereof, GCWA shall, if it has other customers desiring to contract for additional Water supply
from GCWA's Canal Division, that have provided written notice of said desire and submitted
evidence of an intent to enter into a contract for an initial term of not less than ten (10) years
duration, where such Water has been otherwise reserved for Purchaser by this Option or
reserved for other customers with similar Option rights to reserve Water from the Canal Division
under agreements similar to this Agreement, notify Purchaser and all such other customers with
similar Option rights in writing of the receipt of such offer and of the quantity of Water covered
by and the terms of such offer. Purchaser and all such other customers with similar Option
rights may elect to exercise their options to acquire rights to all or any part of their respective
Option Quantities as provided herein within a period ending ninety (90) days after receiving the
notice from GCWA. To the extent Purchaser and all such other customers with similar Option
rights do not elect to take all of their respective Option Quantities, as between Purchaser, all
such other customers with similar Option rights and GCWA, GCWA shall have the right to enter
into a contract with the offeror, for an initial term of not less than ten (10) years, on the terms
and provisions of the offer up to the extent of any unexercised portions of the Option Quantities
of Purchaser and all such other customers with similar Option rights; but should GCWA fail to
enter into such contract on or before the expiration of one hundred eighty (180) days from the
date of GCWA's notice to Purchaser and other customers with similar Option rights of the bona
fide offer, the right of Purchaser and all such other customers with similar Option rights to notice
and right of first refusal as to such offer and such quantity of Water shall be reinstated to the
extent not exercised by Purchaser or such other customers with similar Option rights. GCWA
agrees that any contract entered into with the offeror shall be substantially the same terms and
conditions as this Agreement and the similar agreements with other customers with similar
18
Option rights and that offeror shall be offered substantially the same rights and obligations
under its contract as the Purchaser is afforded under this Agreement and as the other
customers with similar Option rights are afforded under their agreements, ensuring that GCWA
does not treat the offeror any better or worse than the Purchaser or such other customers with
similar Option rights_
If Purchaser and such other customers with similar Option rights exercise their rights of first
refusal under this section, the Contract Quantities of Purchaser and such other customers with
similar Option rights shall be increased by the amount of Water specified in Purchaser's and
such other customers' with similar Option rights election notices so received by GCWA and
Purchaser's Option Quantity and that of the other customers with similar Option rights shall be
reduced by the same amount, respectively.
To the extent GCWA enters into a contract for an initial term of not less than ten (10) years
duration with the offeror as permitted herein, the Option Quantities of Purchaser and of other
customers with similar Option rights after the exercise of their options as provided above shall
be further reduced by an amount equal to the product of multiplying the amount of Water
contracted for by the offeror with GCWA times a fraction, (a) the numerator of which is the
amount of Option Quantity then remaining with Purchaser after the exercise of Purchaser's
option as provided above after the exercise of each such customer's option as provided above
and (b) the denominator of which is the total of all Option Quantities then remaining with
Purchaser and such other customers with similar Option rights after the exercise of their options
as provided above.
In the event that GCWA receives an offer from another customer to purchase Water that has
been otherwise reserved for Purchaser by the Option described in this Section 29, before asking
Purchaser to exercise its Option pursuant to this Section 29, GCWA, acting in its sole discretion
(but in good faith) will first to attempt to satisfy the new offer to purchase Water with water
acquired by GCWA after the date of this Agreement, if any, that has resulted in increasing the
availability of GCWA's supplies such that GCWA is of the opinion that it can make the additional
Water available to the new customer without impairing GCWA's ability to meet its existing water
supply commitments and other Option commitments. Additionally, GCWA shall promptly
provide notice to Purchaser of any additional Supply Sources acquired after the date of
execution of this Agreement and a designation of whether that additional Supply Source was
acquired for the purpose of supplying additional water to GCWA customers or to insure
reliability of the Supply Sources to GCWA's existing customers.
30
SPECIAL PROVISIONS
GCWA and Purchaser are also parties to that certain "Interim Water Supply Agreement" dated
November 16, 2006, relating to the supply of water to Purchaser by GCWA from the Canal J
Division. Nothing in this Agreement shall affect in any way rights and obligations of GCWA and
Purchaser under such Interim Water Supply Agreement. In the event that the System Rate in
this Agreement includes costs for any portion of the costs to be paid by Purchaser in the Interim
Water Supply Agreement between the Parties, Purchaser shall not have to pay any portion of
the System Rate or System Capital Costs twice.
I9
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Jame McWhorter, Board President
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CITY OF PEARLAND
ri>'-r1./ Date: 24iy"
Tom Reid, Mayor
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20
EXHIBIT A
PURCHASER SERVICE AREA
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21
EXHIBIT B
PURCHASER DELIVERY POINT(S)
The proposed 'take point' for the City of Pearland's surface water treatment plant is
located on GCWA's American Canal system near Longitude 29°32'05"N and
Latitude 95°25'24M, a location that is approximately 0.40 miles South of County Rd
59 and 0.38 miles West of County Road 48, and as depicted below.
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Water Take Pont
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SURFACE WATER TAKE POINT PURLU7 WORKS morelon.nlause d•,,. e
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22
EXHIBIT C
GCWA BUDGETED COST OF SERVICE FOR FY 2015
FOR INDUSTRIAL CUSTOMERS RAW WATER COSTS
p i t O O N
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EXHIBIT D
GCWA SYSTEM WATER RIGHTS
Certificate of Adjudication No. 12-5168, as amended (Brazos River Canal A)
Certificate of Adjudication No. 12-5171, as amended (Brazos River Canal B)
Certificate of Adjudication No. 11-5169, as amended (Jones and Oyster Creeks)
Certificate of Adjudication No. 12-5322, as amended (Brazos River, Canal J)
Certificate of Adjudication No. 11-5357, as amended (drainage ditch, Chocolate Bayou, Halls
Bayou, Mustang Bayou)
RESOLUTION NO. R2016-79
A Resolution of the City Council of the City of Pearland, Texas, approving
approving a funding application to the Texas Water Development Board, State
Water Implementation Fund for Texas (SWIFT) program; for the preliminary
design, pilot testing, final design, and first phase construction of a Surface
Water Treatment Plant and associated water conveyance infrastructure in the
amount of$145,000,000.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That the City Council hereby approves application for Texas Water
Development Board, State Water Implementation Fund for Texas (SWIFT) program; for the
preliminary design, pilot testing, final design, and first phase construction of a Surface Water
Treatment Plant and associated water conveyance infrastructure in the amount of$145,000,000, a
copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes.
PASSED, APPROVED and ADOPTED this the day of , A.D.,
2016.
TOM REID
MAYOR
ATTEST:
YOUNG LORFING, TRMC
CITY SECRETARY
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY