Contract - City of Austin, City of Cedar Park, City of Leander - 7/13/2017 INTERLOCAL AGREEMENT REGARDING
ALLOCATION OF COSTS FOR THE RE-RATING OF
AND EXPANSION TO
THE EAST WASTEWATER TREATMENT PLANT OF THE BRUSHY CREEK
REGIONAL WASTEWATER SYSTEM
THIS INTERLOCAL AGREEMENT REGARDING THE ALLOCATION OF
COSTS FOR THE RE-RATING OF, AND EXPANSION TO THE EAST WASTEWATER
TREATMENT PLANT OF THE BRUSHY CREEK REGIONAL WASTEWATER
SYSTEM ("Agreement") is entered into between the City of Austin, ("Austin"), the City of
Cedar Park ("Cedar Park"), the City of Leander, ("Leander"), and the City of Round Rock,
("Round Rock"). In this Agreement,Austin,Cedar Park,Leander, and Round Rock are sometimes
individually referred to as "Party" and collectively referred to as "Parties".
Recitals
WHEREAS, on June 4, 20101 the cities of Austin, Cedar Park, Leander, and Round Rock
(the "Cities") entered into an Amended and Restated Master Contract for the Financing,
Construction, Ownership and Operation of the Brushy Creek Regional Wastewater System, (the
"Master Agreement"); and
WHEREAS, Section 3.06 of the Master Agreement provides for the procedures to be
followed to accomplish the design and construction of expansions to the System, including the
execution of interlocal agreements such as this Agreement; and
WHEREAS, the Parties have agreed to jointly pursue an application for the re-rating of
the System, and for an expansion of the System that will provide for a total of 17.5 million gallons
per day of additional wastewater treatment capacity to meet future wastewater treatment demands
of the Parties based on projected population growth; and
WHEREAS, the purpose of this Agreement is to set forth the terms and conditions of the
allocation of costs for the re-rating and expansion and to authorize preliminary and final design
and other consulting services related to the Project, and pursuant to which the Parties will cost
participate in all costs and expenses related thereto; and
WHEREAS, the Parties intend to enter into a separate interlocal agreement to set forth the
terms and conditions of the allocation of costs for the construction of the Project;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises and agreements of the Parties contained in this Agreement, the Parties agree as follows:
I.
DEFINITIONS
When used in this Agreement, capitalized terms not otherwise defined shall have the
meanings set forth below:
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1.01 "Agreement" means this Interlocal Agreement Regarding the Allocation of Costs for the
Re-rating of, and Expansion to the East Wastewater Treatment Plant of the Brushy Creek Regional
Wastewater System.
1.02 "Austin"means the City of Austin, Texas.
1.03 "Cedar Park"means the City of Cedar Park, Texas.
1.04 "Cost Allocation Percentage, Re-Rate Project" means the percentage of Re-Rate Project
Costs to be paid by each Party. The Re-Rate Project Cost Allocation Percentages are set forth on
Exhibit"A" attached hereto.
1.05 "Cost Allocation Percentage, Expansion Project" means the percentage of Expansion
Project Costs to be paid by each Party. The Expansion Project Cost Allocation Percentages are set
forth on Exhibit"B" attached hereto.
1.06 "Effective Date" means the last date of execution of this Agreement by the Parties;
provided all of the Parties must execute this Agreement for it to be effective.
1.07 "Leander"means the City of Leander, Texas.
1.08 "Master Agreement"means the Amended and Restated Master Contract for the Financing,
Construction, Ownership and Operation of the Brushy Creek Regional Wastewater System dated
June 41 2010.
1.09 "Operations Committee" or"OC' means the Operations Committee created in Section 4.6
of the Master Agreement.
1.10 "Party" or"Parties"means Austin, Cedar Park, Leander, and/or Round Rock, individually
or collectively, as applicable.
1.11 "Project" means: (i) the efforts to design and construct the re-rate improvements and
increase the capacity of the existing System by an additional 3.5 million gallons per day, and (ii)
the efforts to design and construct the necessary 14 million gallons per day expansion of the East
Wastewater Treatment Plant, which will provide for a total of 17.5 million gallons per day of
additional treatment capacity to meet the future wastewater treatment demands of the Parties.
1.12 "Project Consultant(s)" means one or more of the firms engaged by the Parties to perform
Project Consulting Services.
1.13 "Project Consulting Contract(s)"means those certain contracts for engineering and related
services to be approved by the Parties pursuant to which the Project Consultant(s) shall provide
Project Consulting Services.
1.14 "Project Consulting Services"means the services required for the for preliminary and final
engineering and other services to be performed by the Project Consultant(s)pursuant to the Project
Consulting Contracts in order to complete the objectives of the Project.
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1.15 "Project Costs" means all costs and expenses incurred by the Parties in furtherance of the
Proi ect.
1.16 "Project Costs, Expansion" means all those direct and indirect costs associated with the
efforts to expand the existing East Wastewater Treatment Plant.
1.17 "Project Costs, Re-rate" means all of those direct and indirect costs associated with the
efforts to re-rate the capacity of the existing System.
1.18 "Project Fund" means a fund to be established and administered by Round Rock in
accordance with Section 4.02 in order to provide monies to pay the Project Costs.
1.19 "Round Rock"means the City of Round Rock, Texas.
1.20 "System"means the Brushy Creek Regional Wastewater System.
II.
OPERATIONS COMMITTEE
2.01 Responsibility of the OC. The OC shall:
(i) Attend and participate in regular meetings with the Project
Consultant(s) to monitor the status of the Project and to provide direction and
recommendations with respect thereto;
(ii) Review and unanimously approve,in writing,reports for the Project
produced by the Project Consultant(s);
(iii) Review and unanimously approve, in writing, any revisions to the
scope to be performed by the Project Consultant(s);
(iv) Review and unanimously approve in writing other contracts
necessary for the completion of the Project;
(v) Confirm in writing the final completion of Project; and
(vi) Address any other pertinent matters relating to the Project.
The OC shall meet at regular intervals to review the matters over which it has authority. The OC
shall be diligent, prompt and timely in reviewing and acting on matters submitted to it.
III.
CONSULTANT SERVICES
3.01 Consultant Services.
(a) The Parties intend to enter into Project Consultant Contracts in the form
unanimously approved by the Parties.
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(b) After the scope of Project Consultant Contracts is approved, including any
proposed changes to a Project Consultant's compensation, the Project Consultant Contracts may
only be modified by unanimous written authorization from the Parties, such authorization shall be
set forth in a"Supplemental Contract".
3.02 OC Participation.
(a) The OC shall prepare a schedule of meetings with the Project Consultant(s)
that shall be approved by all members of the OC. The foregoing shall not be construed to prohibit
any Party from communicating with Project Consultant(s) regarding the Project Consultant
Services without the presence or participation of the other Parties,or from meeting with the Project
Consultant(s) when it is not practicable to schedule a meeting with the OC.
(b) The Parties agree that the final design of the Project will not be finalized
until the OC has reviewed and unanimously approved in writing such design.
(c) Within ten (10) business days of receipt of any preliminary and/or final
reports prepared by the Project Consultant(s), the members of the OC shall specify in writing to
each other any objections regarding the draft reports, and any proposed revisions thereto. If any
member of the OC fails to object in writing to the report within the ten (10)-business-day period,
then that member shall be deemed to have approved the draft report. In the event that any member
of the OC timely objects to the draft report, then the OC shall endeavor in good faith to resolve the
matter by unanimous agreement. If the OC cannot unanimously agree to the proper resolution
within fifteen (15) business days, then the OC shall refer the dispute to the respective City
Managers of the Parties. The City Managers shall work diligently and in good faith to resolve the
dispute as quickly as possible so as not to jeopardize the completion of the Project.
3.03 Work Product.
(a) Any Party is entitled to copies of any work product produced by the Project
Consultant(s) in connection with the Project Consultant Services. The Party requesting a copy of
such information shall pay all reasonable costs incurred in preparing and furnishing the copies.
(b) In accordance with, and subject to the terms and conditions set forth in the
Project Consultant Contracts, the Parties may utilize the work product produced by the Project
Consultant(s) for their own purposes.
IV.
PROJECT COSTS.
4.01 Project Costs. All Project Costs shall be determined to be either Re-rate Project
Costs or Expansion Project Costs.
4.02 Payment of Project Costs.
(a) All Re-Rate Project Costs shall be shared by the Parties according to the
Re-Rate Cost Allocation Percentages, as set forth in Exhibit"A" attached hereto.
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(b) All Expansion Project Costs shall be shared by the Parties according to the
Expansion Cost Allocation Percentages, as set forth in Exhibit"B" attached hereto.
(c) The Parties agree that Project Consultant(s) will be instructed to send all
invoices to Round Rock and that upon receipt of each invoice from the Project Consultant(s),
Round Rock shall review the invoice and confirm that the Project Services have been completed
in accordance with the request for payment. Round Rock shall also determine if the invoice is for
Re-rate Project Costs or for Expansion Project Costs.
(d) Upon Round Rock's approval of each invoice for Project Costs, including
the detenmination of Re-Rate Project Costs or Expansion Project Costs, Round Rock will transmit
a copy of the approved invoice to each Party's representative on the OC. Within ten (10)business
days of receipt of the invoice for payment,the members of the OC shall specify in writing to Round
Rock any objections regarding the invoice for payment. If any member of the OC fails to object in
writing to the invoice within the ten (10) business day period, then the Party represented by such
OC member shall be deemed to have approved the invoice for payment. In the event that any
member of the OC timely objects to the invoice, then the matter shall be resolved in accordance
with the following procedures:
(i) If the objection relates to the performance of work or services by a
Project Consultant, then the OC shall exercise all rights to which it is entitled under the
Project Consulting Contract to resolve the dispute, require correction of the defective
work, and otherwise address the concern of the objecting member of the OC.
(ii) In the event that any member of the OC objects to an invoice for
reasons not related to the performance of work or services by the Project Consultant,then
the OC shall endeavor in good faith to resolve the matter by unanimous agreement. If the
OC cannot unanimously agree to the proper resolution within thirty(30) calendar days of
the date of written objection, then the invoice shall be paid as received; provided,
however, that any Party may subsequently seek a determination of the dispute through
the dispute resolution process set forth in Sec. 4.04 below, and the allocation of costs
between the Parties shall be adjusted in accordance with such determination. Any such
request for dispute resolution must be brought within thirty(30) calendar days of the date
of written objection.
(iii) In the event that Project Costs exceed agreed upon estimates, then
the OC must approve such overruns by unanimous agreement. If the OC cannot
unanimously agree,then the matter shall be submitted to the City Managers for resolution
as set forth in Sec. 4.04.
(e) The Parties agree that the reasonable compensation cost for Round Rock's
performing the aforesaid financial administration and other general administrative
services is the sum of $2,000 per month, beginning when the first Project Consultant
Contract is executed, and ending with the completion of the bidding process for the
construction of the Project (resulting in the expansion of the East Wastewater Treatment
Plant to a total of 17.5 million gallons per day of additional treatment capacity), which
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costs shall be shared and allocated among the Parties (including Round Rock) according
to the Cost Allocation Percentages set forth in Exhibit "B".
(f) In the event of termination of this Agreement prior to the completion of the
Project, all Parties shall provide payment of their pro rata share of the Project Costs
incurred prior to and through the date of the tennination.
4.03 Project Fund.
(a) The Parties shall contribute monies to the Project Fund in accordance with
the following provisions:
(i) Within ten(10) calendar days of execution of the Project Consulting
Contract(s) by the Parties, each Party shall deposit into the Project Fund a sum, which
represents twenty five percent(25%) of each Party's share of the estimated Project Costs.
The Project Fund shall be placed in an interest-bearing account, and the interest shall
become part of the Project Fund.
(ii) At such time as the balance in the Project Fund is substantially
depleted, as detennined in Round Rock's reasonable discretion, Round Rock shall
provide written notice (by email or otherwise) thereof to the other Parties, each of which
shall have thirty (3 0) calendar days to deposit into the Project Fund an additional
payment, in the same amount as originally deposited. Each notice by Round Rock shall
be accompanied by a written accounting report that identifies in reasonable detail all prior
expenditures from the Project Fund.
(iii) The foregoing process shall continue until such time as the Project
Costs have been paid in full. In the event that the Project Costs exceed the original
estimate, after prior notice to the Parties of the cost exceedance and what was considered
to avoid such costs, each Party shall deposit within the Project Fund a sum equal to the
product determined by multiplying each Party's Cost Allocation Percentage for the type
of Project Costs for such services.
(b) In the event that there are remaining funds within the Project Fund upon
final completion of the Project, then Round Rock shall promptly divide and remit within 30
calendar days such funds to the Parties on a pro rata basis according to the percentage of all Project
Costs previously paid by each of the Parties. Payment shall be accompanied by a written
accounting describing the basis for calculation of payment to each Party.
(c) All interest that accumulates within the Project Fund shall remain within
such fund for payment of Project Costs.
4.04 Disputes. In the event of any disputes among the Parties, the Parties agree that the City
Managers shall work diligently and in good faith to resolve the dispute as quickly as possible so as not to
jeopardize the completion of the Project.
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V.
GENERAL PROVISIONS
5.01 Authority. This Agreement is made in part under the authority conferred in Chapter 791,
Texas Government Code and Section 552.001, Texas Local Government Code.
5.02 Severability. The provisions of this Agreement are severable and, if any provision of this
Agreement is held to be invalid for any reason by a court or agency of competent jurisdiction, the
remainder of this Agreement will not be affected and this Agreement will be construed as if the
invalid portion had never been contained herein.
5.03 Payments from Current Revenues. Any payments required to be made by a Party under
this Agreement will be paid from current revenues or other funds lawfully available to the Party
for such purpose. The obligation of Parties to make payments to Round Rock will not constitute
a general obligation or indebtness of the Parties that obligate a Party to levy or pledge any revenue
from taxes.
5.04 Cooperation. The Parties agree to cooperate at all times in good faith to effectuate the
purposes and intent of this Agreement.
5.05 Entire Agreement. Except as otherwise expressly provided herein, this Agreement
contains the entire agreement of the Parties regarding the sharing of costs for the Project
Consulting Services and supersedes all prior or contemporaneous understandings or
representations, whether oral or written, regarding the subject matter. The Parties confirm that
further agreements regarding the Project are contemplated and will not be affected or limited by
this Agreement.
5.06 Amendments.Any amendment of this Agreement must be in writing and will be effective
if signed by the authorized representatives of the Parties.
5.07 Applicable Law; Venue.This Agreement will be construed in accordance with Texas law.
Venue for any action arising hereunder will be in Williamson County, Texas.
Notices. Any notices given under this Agreement will be effective if(i) forwarded to a Party by
hand-delivery; (ii) transmitted to a Party by confirmed telecopy; or (iii) deposited with the U.S.
Postal Service, postage prepaid, certified, to the address of the Party indicated below:
AUSTIN: P.O. Box 1088
Austin, Texas 78767
Attn: Director, Austin Water
Telephone: (512) 972-0109
with copy to: City Law Department
P.O. Box 1088
Austin, Texas 78767
Attn: Division Chief, Utility& Regulatory
Division
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CEDAR PARK: 450 Cypress Creek Road, Bldg. 1
Cedar Park, Texas 78613
Attn: Sam Roberts
Telephone: (512) 401-5000
Email: sam.robertsacedarparktexas.gov
with copy to: J.P LeCompte
City Attorney
450 Cypress Creek Road, Bldg. 1
Cedar Park, Texas 78613
Email: JP.LeComptec,cedarparktexas.gov
ROUND ROCK: 221 East Main
Round Rock, Texas 78664
Attn: Michael Thane
Telephone: (512) 218-3236
Email: mthanelhadley_aroundrocktexas.gov
with copy to: Steve Sheets
309 E. Main Street
Round Rock, Texas 78664-5264
Telephone: (512) 255-8877
Email: steveascrrlaw.com
LEANDER: P.O. Box 319
Leander, Texas 78646-0319
Attn: Wayne Watts
Telephone: (512) 259-1178
Email: w.wattsaci.leander.tx.us
with copy to: Paige Saenz
223 W. Anderson Lane, Suite A-105
Austin, Texas 78752
Telephone: (512) 323-5778
Email: paigeacityattorneytexas.com
5.08 Force Majeure. The Parties shall not be deemed in violation of this Contract if
prevented from performing any of their obligations hereunder by reasons for which they are not
responsible or circumstances beyond their control. However, notice of such impediment or delay
in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects.
Force majeure shall not relieve the Parties of its obligation to make payment to Round Rock as
provided in this Agreement.
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5.09 Independent Contractor. Each of the Parties shall have the status of an independent
contractor hereunder and shall be solely responsible for the proper direction of its employees
hereunder and each Party's employees shall not be considered employees or borrowed servants of
any of the other parties for any reason.
5.10 No Third Party Beneficiaries. This Agreement shall inure only to the benefit of the
Parties and third parties not privy to this Agreement shall not,in any form or manner,be considered
a third party beneficiary of this Agreement.
5.11 Conflict. If there is a conflict between the Master Agreement and this Agreement, the
provisions of this Agreement shall control.
5.12 Termination. This Agreement may be terminated by mutual agreement of the Parties. If
this Agreement is terminated by the Parties prior to its completion of Project Consulting Services,
then the terms and conditions of the Master Agreement shall control. Any outstanding balance
within the Project Fund will be returned proportionally in accordance with the applicable Exhibit
percentages. The Parties shall then work cooperatively with due diligence to determine how to
address existing and future wastewater treatment capacity issues.
5.13 Default. In the event that one Party believes that the other Party is in default of any of the
provisions in this agreement, the non-defaulting party will make written demand to cure to the
defaulting party and give the defaulting party up to thirty days to cure the default or, if the curative
action cannot reasonably be completed within thirty days, the defaulting party will commence the
curative action within thirty days and thereafter diligently pursue the curative action to completion.
This period must pass before the non-defaulting party may initiate any remedies available to the
non-defaulting party due to such default. The non-defaulting party shall mitigate direct or
consequential damages arising from any default to the extent reasonably possible under the
circumstances. The parties agree that they will use their best efforts to resolve any disputes and
may engage in non-binding arbitration or other alternative dispute resolution methods as
recommended by the laws of the State of Texas before initiating any lawsuit to enforce their rights
under this agreement. Nothing in this agreement shall be construed to limit either party's right to
recover damages or to seek other appropriate curative remedies if a breach of contract action is
filed by a non-defaulting party to this Agreement.
5.14 Counterparts. Effect of Partial Execution. This Agreement may be executed
simultaneously in multiple counterparts, each of which will be deemed an original,but all of which
will constitute the same instrument.
5.15 No Waiver of Immunities or Defenses. Nothing in this Agreement shall be deemed to
waive,modify or amend any immunity or legal defense available at law or in equity to the Parties,
their past or present officers, employees, or agents or employees, nor to create any legal rights or
claim on behalf of any third party.
5.16 Authority. Each Party represents and warrants that it has the full right,power and authority
to execute this Agreement.
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CITY OF AUSTIN:
By:
Robert Goode, Assistant City Manager
Date: /"?
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CITY OF ROUND ROCK:
ATTEST:
By:
Sara White, City Clerk Craig Morgan, ayor
Date: • l�•
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CITY OF CEDAR PARK:
ATTEST:
By:
LeAnn Quinn, City Secretary Matthew Powell, Mayor
Date:
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CITY OF LEANDER:
ATTEST: By:
Christopher Fielder, Mayor
Dara Crabtree, City Secretary
Date:
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Exhibit "A"
Allocation of Re-rate Project Costs
City Rerate Cost
Capacity Allocation
(MGD)
Round Rock 2.87 81.96%
Leander 0.00 0.00%
Cedar Park 0.51 14.61%
Austin 0.12 3.43%
TOTALS 3.50 100.00%
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Exhibit "B"
Allocation of Expansion Project Costs
City Expansion Cost
Capacity Allocation
(MGD)
Round Rock 3.50 25.00%
Leander 5.50 39.29%
Cedar Park 2.00 14.29%
Austin 3.00 21.42%
TOTALS 14.00 100.00%
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