R-2017-4818 - 9/28/2017 RESOLUTION NO. R-2017-4818
WHEREAS, Chapter 791 of the Texas Government Code, V.T.C.A., authorizes local
governments and agencies of the state to enter into agreements with one another to perform
governmental functions and services; and
WHEREAS, the City of Round Rock ("City") is a participating city in the Brushy Creek
Regional Utility Authority ("BCRUA"), a currently active and legally existing Corporation organized
under the provisions of Subchapter D of Chapter 431, Texas Transportation Code, as amended; and
WHEREAS, the City wishes to enter into an Interlocal Agreement with the BCRUA regarding
certain responsibilities for property acquisition needed for Phase 2 of the BCRUA Regional Water
Treatment and Distribution Project,Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on behalf of the City an Interlocal
Agreement Regarding Property Acquisition for BCRUA Regional Water Treatment and Distribution
Project (Phase 2) with the Brushy Creek Regional Utility Authority, a copy of same being attached
hereto as Exhibit"A" and incorporated herein for all purposes.
The City Council hereby finds and declares that written notice of the date, hour, place and
subject of the meeting at which this Resolution was adopted was posted and that such meeting was
open to the public as required by law at all times during which this Resolution and the subject matter
hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended.
RESOLVED this 28th day of September, 2017.
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CRAIG ORG , Mayor
City of Round R ck, Texas
ATTEST:
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SARA L. WHITE, City Clerk
0112.1704;00386416
EXHIBIT
"A„
INTERLOCAL AGREEMENT REGARDING
PROPERTY ACQUISITION FOR BCRUA REGIONAL WATER TREATMENT AND
DISTRIBUTION PROJECT (PHASE 2)
THE STATE OF TEXAS §
§ KNOW ALL BY THESE PRESENTS:
COUNTY OF WILLIAMSON §
THIS INTERLOCAL AGREEMENT ("Agreement") is entered into among the City of
Round Rock, a Texas home-rule city ("City") and the Brushy Creek Regional Utility Authority,
Inc. ("BCRUA"). In this Agreement, the City and the BCRUA are sometimes individually
referred to as "Party" and collectively referred to as "Parties".
Recitals
WHEREAS, the City is a participating city in the BCRUA, a currently active and legally
existing Corporation organized under the provisions of Subchapter D of Chapter 431, Texas
Transportation Code, as amended, and
WHEREAS, the City and BCRUA now desire to enter into an agreement regarding
certain responsibilities for property acquisition needed for Phase 2 ("Phase 2") of the BCRUA
Regional Water Treatment and Distribution Project ("Project"), and that will acknowledge,
consent, authorize and direct the City to acquire certain property interests for the Project, and
allocate responsibility for certain acquisition costs; and
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.
GENERAL
1.01 General. The purpose of this Agreement is for BCRUA to consent,
acknowledge, and authorize the legal right and authority of the City to engage in activities to
determine the location and necessity for, negotiate the voluntary purchase of and, if necessary, to
use its power of eminent domain to condemn any and all right of way, easements, or any other
related property interests required by and for the Project which are determined to be necessary to
carry out the purposes and uses of the Project.
1.02 Eminent Domain. Phase 2 of the Project is a public capital improvement project
to design and construct a regional water system and related utility improvements. The City shall
acquire the land, right-of-way, easements or other property interests required for completion of
the Project. The duty and responsibility of the City to acquire the land, right-of-way, easements
or other property interests shall include the consent, acknowledgment, authority and obligation of
the City to use and employ the power of eminent domain if determined to be reasonably
necessary to acquire the property interests required for Phase 2. The City is also authorized and
directed to acquire in the name of the City any and all property interests required for Phase 2 for
and as required by the Project. If the City acts to acquire any tract(s) or parcel(s) of the land,
right-of-way, easement or other property rights by exercising the power of eminent domain, in
addition to the eminent domain authority of the City, the City is authorized to use any existing
eminent domain or other statutory, common law, or constitutional rights and authority of the
BCRUA necessary to acquire the property interests required for Phase 2 of the Project.
1.03 Acquisition Costs. BCRUA agrees to reimburse the City for any and all costs
expended and documented by City which are directly related to the acquisition of the required
property interest described herein, including legal fees, litigation costs, expert and acquisition
consultant fees, and other actual costs determined by City to be necessary to carry out the
purposes, requirements and direction of the Agreement. The Parties agree that this responsibility
for reimbursement shall be applicable to any documented costs or expenses of City as described
herein which have occurred prior to the effective date of this Agreement.
II.
NEGOTIATION AND MEDIATION OF DISPUTES
2.01 Remedies. The Parties agree that their respective obligations under this
Agreement are unique and the failure by any Party to perform its obligations under this
Agreement would not be appropriately remedied by award of damages to any other affected
Party to this Agreement and in any event, such damages would be difficult, if not impossible, to
determine because of the unique nature of the Parties' obligations to each other hereunder.
Further, the Parties agree that the remedy of termination of this Agreement by any Party is
inappropriate and not in the public interest. Therefore, the Parties agree that they shall be
entitled, and limited, to the remedies of specific performance, mandamus and injunction in the
event of any breach of any obligation by any Party under this Agreement.
2.02 Dispute Resolution. The Parties agree to attempt first to resolve disputes
concerning this Agreement amicably by entering into negotiations in good faith. The Parties
agree that they will not refer any dispute to mediation or litigation until they have first made
reasonable and good faith efforts to settle their differences by joint negotiations conducted in a
timely manner.
2.03 Mediation. If any dispute cannot be resolved through good faith negotiation,
then the Parties shall select within fifteen (15) business days, a trained mediator to assist with
resolution of the dispute. The parties will share the mediator's fees equally and the parties will
bear their own cost of participation, such as fees for any consultants or attorneys they may utilize
to represent them or assist them in the mediation.
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III.
GENERAL PROVISIONS
3.01 Authority. This Agreement is made in part under the authority conferred in
Chapter 791, Texas Government Code.
3.02 Governmental Immunity. Nothing in this Agreement shall be deemed to waive,
modify or amend any legal defense available at law or in equity to either of the Parties nor to
create any legal rights or claim on behalf of any third party. Neither the City nor BCRUA
waives, modifies, or alters to any extent whatsoever the availability of the defense of
governmental immunity under the laws of the State of Texas and of the United States.
3.03 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.
3.04 Assignment. Except as otherwise provided herein, the assignment of this
Agreement by any Party is prohibited without the prior written consent of the other Party. All of
the respective covenants, undertakings, and obligations of each of the Parties will bind that Party
and will apply to and bind any successors or assigns of that Party.
3.05 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.
3.06 Cooperation. The Parties agree to cooperate at all times in good faith to
effectuate the purposes and intent of this Agreement.
3.07 Entire Agreement. This Agreement contains the entire agreement of the Parties
regarding the subject matter hereof and supersedes all prior or contemporaneous understandings
or representations, whether oral or written, regarding the subject matter.
3.08 Amendments. Any amendment of this Agreement must be in writing and will be
effective if signed by the authorized representatives of the Parties.
3.09 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.
3.10 Contacts. Any notices given under this Agreement will be effective if (i)
forwarded to a Party by hand-delivery; or (ii) deposited with the U.S. Postal Service, postage
prepaid, certified, to the address of the Party indicated below:
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CITY: City of Round Rock
Attn: City Manager
221 E. Main Street
Round Rock, Texas 78664
BCRUA: Brushy Creek Regional Utility Authority, Inc.
Attn: Tom Gallier
1906 Hur Industrial Blvd.
Cedar Park, Texas 78613
3.11 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.
3.12 Authority. Each Party represents and warrants that it has the full right, power
and authority to execute this Agreement. The parties' respective governing bodies must approve
this Agreement.
CITY OF ROUND ROCK
By:
Craig Morgan, Mayor
Date:
BRUSHY CREEK REGIONAL UTILITY
AUTHORITY, INC.:
By:
Frank Leffingwell, President
Title:
Date:
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