R-08-12-18-7G3 - 12/18/2008RESOLUTION NO. R -08-12-18-7G3
WHEREAS, the City of Round Rock ("City") has previously
entered into a Master Contract for the Financing, Construction and
Operation of the BCRUA Regional Water Treatment and Distribution
Project with Brushy Creek Regional Utility Authority, Inc., the City
of Cedar Park, and the City of Leander (the "Parties"), and
WHEREAS, the City now desires to enter into a First Amendment
to the Master Contract to reflect the new operational date of April
1, 2012, 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 a First Amendment to the Master Contract for the
Financing, Construction and Operation of the BCRUA Regional Water
Treatment and Distribution Project, 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 18th day of December, 2008.
/1117
ATTEST:
SARA L. WHITE, City Secretary
0:\WDOX\RESOLUTI\R81218G3. DOC/rmc
ALAN MCGRAW, Mayor
City of Round Rock, Texas
FIRST AMENDMENT TO THE MASTER CONTRACT FOR THE FINANCING,
CONSTRUCTION AND OPERATION OF THE BCRUA
REGIONAL WATER TREATMENT AND DISTRIBUTION PROJECT
THIS FIRST AMENDMENT TO THE MASTER CONTRACT FOR THE
FINANCING, CONSTRUCTION AND OPERATION OF THE BCRUA REGIONAL WATER
TREATMENT AND DISTRIBUTION PROJECT (the "First Amendment") is dated and entered
into as of the 18th day of December, 2008, by and among Brushy Creek Regional Utility
Authority, Inc. ("BCRUA"), a non-profit corporation of the State of Texas (the "State"), created
and existing under the laws of the State, including Subchapter D of Chapter 431 as amended,
Texas Transportation Code, and the City of Cedar Park, Texas ("Cedar Park"), the City of
Leander, Texas ("Leander"), and the City of Round Rock, Texas ("Round Rock") all home -rule
municipalities and political subdivisions of the State (individually, the "City"; collectively, the
"Cities"). The BCRUA and the Cities are collectively referred to herein as the "Parties."
RECITALS
WHEREAS, for several years the Cities have planned for the development and
construction of a new regional water treatment system to meet the potable water needs of each
City; and
WHEREAS, in order to facilitate a regional approach among the Cities, Leander and
Round Rock have agreed to accelerate their plans for additional water treatment plant capacity,
and Cedar Park has delayed the expansion of its existing water treatment plant and related
facilities;
WHEREAS, the Parties created the BCRUA for the purpose of constructing, owning and
operating the new regional water treatment system; and
WHEREAS, on the 2°a day of September, 2008 the Parties entered into that one certain
Master Contract for the Financing, Construction and Operation of the BCRUA Regional Water
Treatment and Distribution Project (the "Contract"), that provides terms and conditions for the
financing, construction and operation of the first phase of the new regional system consisting
generally of upgrades to Cedar Park's raw water intake, a raw water intake line, new water
treatment plant, and water transmission mains; and
WHEREAS, when the Contract was executed, the Parties intended that the BCRUA
Project would be operational by April 1, 2011; and
WHEREAS, the Cities desire to delay the issuance of bonds and the commencement of
construction of the Project by several months; and
EXHIBIT
WHEREAS, the Parties wish to clarify their agreement to allow for a limited delay in the
issuance of bonds and commencement of construction of the BCRUA Project and provide for a
release and withdrawal from the Contract under certain conditions;
WHEREAS, at this time the Parties believe that it would be beneficial to all of the Parties
to postpone the date on which the BCRUA Project is to be operational from April 1, 2011 to
April 1, 2012; and
WHEREAS, the Parties wish to amend the Contract to reflect this new date; NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein contained, the
sufficiency of which are hereby conclusively acknowledged, and subject to the terms and
conditions hereinafter set forth, the Cities and the BCRUA mutually agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 All terms used herein shall have the meanings assigned to them in the Contract,
unless the context clearly requires otherwise.
ARTICLE II
AMENDMENTS
Section 2.1 Section 3.1, General of the Contract is hereby amended to read as follows:
Subject to the remaining terms and provisions of this Contract, the BCRUA
agrees to issue one or more series of the Bonds, as requested by any City, to
acquire and construct the BCRUA Project as generally described in the
Preliminary Design Report. The Parties anticipate that the BCRUA Project will
be operational by April 1, 2012. It is expressly understood and agreed that any
obligations on the part of the BCRUA to finance, acquire, construct, and
complete the BCRUA Project and any future expansions of the BCRUA Project
and to provide the water treatment capacity to the Cities shall be (i) conditioned
upon the BCRUA's ability to obtain all necessary permits, Land Interests,
material, labor, and equipment, and upon the ability of the BCRUA to finance the
BCRUA Project Costs through the actual sale of the Bonds or receipt of funds
from the Cities, including any Additional Bonds needed to complete the BCRUA
Project, and (ii) subject to all present and future valid laws, orders, rules, and
regulations of the United States of America, the State, and any regulatory body
having jurisdiction. The BCRUA shall acquire and construct the BCRUA Project
with all reasonable dispatch, and the BCRUA will use best efforts to pursue such
acquisition and construction in order that (i) construction will commence on the
Phase I Raw Water Facilities as defined in the PDR by August 1, 2009; (ii)
construction will commence on the water treatment plant component of the
BCRUA Project by October 1, 2009, and (iii) the BCRUA Project will be
2
operational by April 1, 2012, delays incident to events of Force Majeure only
excepted.
Section 2.2 Section 3.5, Award of Construction Contracts of the Contract is hereby amended
so that where it says "April 1, 2011," it shall hereafter state "April 1, 2012."
Section 2.4 Section 12.22, Withdrawal by and Release of a City is hereby added to the
Contract as follows:
Section 12.22. Withdrawal by and Release of a City. Regardless of anything
contained herein to the contrary, but prior to the issuance of bonds or other
obligations by either a City or the BCRUA for the BCRUA Project, any of the
three Cities, in its sole discretion, may elect to withdraw from this Contract
(hereinafter referred to as the "Withdrawing City") and the non -withdrawing
Cities (hereinafter referred to as the "Non -withdrawing City(ies)"), specifically
agree that the Withdrawing City is and shall be fully released from the Contract,
(i)
for any reason prior to May 1, 2009; or
(ii) if the BCRUA has not sold bonds, or any Non -withdrawing City
has not otherwise provided for funding for its total allocations of the
BCRUA Project Costs through a separate bond issue on or before July 1,
2009.
The Withdrawing City's withdrawal from the Contract shall be effective upon the
Withdrawing City's written notice to the other Parties of its withdrawal as provided in
Section 12.7 of this Contract. Upon notice of such withdrawal, the Non -withdrawing
City(ies) and the BCRUA agree to release the Withdrawing City from this Contract and
upon such withdrawal and release, the Withdrawing City shall no longer be a party to and
shall be released from all obligations and liabilities of this Contract, including but not
limited to any obligations to make Annual Payments to the BCRUA. The Non -
withdrawing City(ies) agree that upon the provision of such notice by the Withdrawing
City pursuant to this section, the Withdrawing City's withdrawal and the Non -
withdrawing City(ies) release of the Withdrawing City shall be effective as provided
herein and shall not require further action by any Party. In addition, within ninety (90)
days of the notice of the Withdrawing City's withdrawal and release, the Withdrawing
City shall convey all of its interests in the Engineering Reports, Land Interests acquired
in the acquisition contracts listed herein below as (i) and (ii) by delivering to the Non -
withdrawing City(ies) all necessary and appropriate conveyance documents, deeds, bill of
sales, assignments, etc. that may be reasonably required by the Non -withdrawing
City(ies). Likewise, within said ninety (90) day period, the Non -withdrawing City(ies)
shall reimburse the Withdrawing City for the costs incurred by the Withdrawing City as
defined in and made pursuant to the following agreements: (i) the Easement Acquisition
Costs pursuant to the First Amended Interlocal Agreement Regarding Acquisition of
Easements for Construction of a Raw Water Transmission Line Along Trails End Road
effective July 24, 2008; and (ii) the Real Estate Acquisition Costs pursuant to the
3
Interlocal Agreement Regarding Acquisition of Real Property for a Regional Water
Treatment Plant Site effective January 3, 2008. The Withdrawing City is also released
from any further costs associated with the Interlocal Agreement Regarding Ancillary
Consulting Services For Regional Water System dated February 28, 2007 and any
operation and maintenance expenses associated with the New Hope waterline constructed
pursuant to the Interlocal Agreement Regarding Construction Of Regional Waterline
dated March 23, 2006.
In the event that Cedar Park is the Withdrawing City, Cedar Park specifically agrees to
the following:
(i) that despite its election to withdraw from the Master Contract Cedar Park
agrees to continue to be bound by the terms and provisions of the Interlocal
Agreement Regarding Construction of Regional Water Line, dated March, 2006;
and
(ii) that Cedar Park agrees not to oppose, but to reasonably cooperate with the
BCRUA's, Leander's and/or Round Rock's efforts to obtain legal rights from
LCRA or any other necessary person or entity to construct a floating barge and
intake point on the tract owned by LCRA which is also the location of Cedar
Park's existing floating barge and intake point.
ARTICLE III
MISCELLANEOUS
Section 3.1 To the extent necessary to effect the terms and provisions of this First
Amendment, the Contract is hereby amended and modified. In all other respects, the aforesaid
Contract is hereby ratified and confirmed.
Section 3.2 This First Amendment may be executed in counterparts, each of which shall be an
original and all of which together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto acting under authority of their respective
governing bodies have caused this First Amendment to be duly executed as of the day and year
first above written.
(SIGNATURES ON FOLLOWING PAGES)
4
BRUSHY CREEK REGIONAL UTILITY AUTHORITY, INC.
Attest:
By:
John Cowman, Secretary
By:
Scott Rhode, President
5
Attest:
By:
LeAnn Quinn, City Secretary
CITY OF CEDAR PARK, TEXAS
By:
Bob Lemon, Mayor
6
Attest:
By:
Debbie Haile, City Secretary
CITY OF LEANDER, TEXAS
By:
John Cowman, Mayor
7
Attest:
By:
Sara White, City Secretary
CITY OF ROUND ROCK, TEXAS
By:
Alan McGraw, Mayor
8
DATE: December 11, 2008
SUBJECT: City Council Meeting — December 18, 2008
ITEM: 7G3. Consider a resolution authorizing the Mayor to execute the First
Amendment to the Master Contract for the Financing, Construction, and
Operation of the Brushy Creek Regional Utility Authority, Inc. Regional
Water Treatment and Distribution Project.
Department:
Staff Person:
Justification:
Water and Wastewater Utilities
Michael Thane, P.E., Director of Utilities
On September 2, 2008, the Cities entered into a Master Contract which provides terms and
conditions for the financing, construction, and operation of the first phase of the BCRUA
regional water project. When the Contract was executed, the Cities intended that the project
would be operational by April 1, 2011. The Cities desire to delay the issuance of bonds and the
commencement of construction of the project. The Cities believe it would be beneficial to all
Cities to postpone the date on which the BCRUA project will be operational from April 1, 2011
to April 1, 2012. In addition, this amendment provides each City the ability to withdraw from
the Contract under certain conditions that would prohibit project completion by April 1, 2012.
Funding:
Cost: N/A
Source of funds: N/A
Outside Resources: City of Cedar Park and City of Leander
Background Information:
The Master Contract sets forth the terms and conditions under which the Cities, by and through
the BCRUA, will finance, construct, acquire, own, maintain, and operate the BCRUA Project.
This Contract also sets forth in general terms the manner in which the Cities will share the costs
of constructing, operating, and maintaining the BCRUA Project. It is anticipated that in the
future, the Cities and BCRUA will enter into one or more agreements that will set forth in detail
the manner in which the BCRUA will perform the day-to-day operations, management, and
maintenance of the BCRUA Project and the manner in which the Cities will apportion and share
the costs of the operation, management, and maintenance of the BCRUA Project.
Public Comment: N/A
c®y
FIRST AMENDMENT TO THE MASTER CONTRACT FOR THE FINANCING,
CONSTRUCTION AND OPERATION OF THE BCRUA
REGIONAL WATER TREATMENT AND DISTRIBUTION PROJECT
THIS FIRST AMENDMENT TO THE MASTER CONTRACT FOR THE
FINANCING, CONSTRUCTION AND OPERATION OF THE BCRUA REGIONAL WATER
TREATMENT AND DISTRIBUTION PROJECT (the "First Amendment") is dated and entered
into as of the 18th day of December, 2008, by and among Brushy Creek Regional Utility
Authority, Inc. ("BCRUA"), a non-profit corporation of the State of Texas (the "State"), created
and existing under the laws of the State, including Subchapter D of Chapter 431 as amended,
Texas Transportation Code, and the City of Cedar Park, Texas ("Cedar Park"), the City of
Leander, Texas ("Leander"), and the City of Round Rock, Texas ("Round Rock") all home -rule
municipalities and political subdivisions of the State (individually, the "City"; collectively, the
"Cities"). The BCRUA and the Cities are collectively referred to herein as the "Parties."
RECITALS
WHEREAS, for several years the Cities have planned for the development and
construction of a new regional water treatment system to meet the potable water needs of each
City; and
WHEREAS, in order to facilitate a regional approach among the Cities, Leander and
Round Rock have agreed to accelerate their plans for additional water treatment plant capacity,
and Cedar Park has delayed the expansion of its existing water treatment plant and related
facilities;
WHEREAS, the Parties created the BCRUA for the purpose of constructing, owning and
operating the new regional water treatment system; and
WHEREAS, on the 2nd day of September, 2008 the Parties entered into that one certain
Master Contract for the Financing, Construction and Operation of the BCRUA Regional Water
Treatment and Distribution Project (the "Contract"), that provides terms and conditions for the
financing, construction and operation of the first phase of the new regional system consisting
generally of upgrades to Cedar Park's raw water intake, a raw water intake line, new water
treatment plant, and water transmission mains; and
WHEREAS, when the Contract was executed, the Parties intended that the BCRUA
Project would be operational by April 1, 2011; and
WHEREAS, the Cities desire to delay the issuance of bonds and the commencement of
construction of the Project by several months; and
(L-oS-[2- rs
WHEREA , the Parties wish to clarify their agreement to allow for a limited delay in the
issuance of bonds d commencement of construction of the BCRUA Project and provide for a
release and withdr a1 from the Contract under certain conditions;
WHEREAS
to postpone the da
April 1, 2012; and
, at this time the Parties believe that it would be beneficial to all of the Parties
e on which the BCRUA Project is to be operational from April 1, 2011 to
WHEREA , the Parties wish to amend the Contract to reflect this new date; NOW,
THEREFORE, in onsideration of the mutual covenants and agreements herein contained, the
sufficiency of w ch are hereby conclusively acknowledged, and subject to the terms and
conditions hereina er set forth, the Cities and the BCRUA mutually agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 All erms used herein shall have the meanings assigned to them in the Contract,
unless the context learly requires otherwise.
ARTICLE II
AMENDMENTS
Section 2.1 Section 3.1, General of the Contract is hereby amended to read as follows:
Subject to the remaining terms and provisions of this Contract, the BCRUA
agrees to i sue one or more series of the Bonds, as requested by any City, to
acquire . • construct the BCRUA Project as generally described in the
Prelimin. Design Report. The Parties anticipate that the BCRUA Project will
be operatial by April 1, 2012. It is expressly understood and agreed that any
obligations on the part of the BCRUA to finance, acquire, construct, and
complete t e BCRUA Project and any future expansions of the BCRUA Project
and to pro ide the water treatment capacity to the Cities shall be (i) conditioned
upon the : CRUA's ability to obtain all necessary permits, Land Interests,
material, 1.. or, and equipment, and upon the ability of the BCRUA to finance the
BCRUA P oject Costs through the actual sale of the Bonds or receipt of funds
from the C ties, including any Additional Bonds needed to complete the BCRUA
Project, an (ii) subject to all present and future valid laws, orders, rules, and
regulations' of the United States of America, the State, and any regulatory body
having juri8diction. The BCRUA shall acquire and construct the BCRUA Project
with all reasonable dispatch, and the BCRUA will use best efforts to pursue such
acquisition and construction in order that (i) construction will commence on the
Phase I R w Water Facilities as defined in the PDR by August 1, 2009; (ii)
constructio will commence on the water treatment plant component of the
BCRUA oject by October 1, 2009, and (iii) the BCRUA Project will be
2
operational by April 1, 2012, delays incident to events of Force Majeure only
excepted.
Section 2.2 Section 3.5, Award of Construction Contracts of the Contract is hereby amended
so that where it says "April 1, 2011," it shall hereafter state "April 1, 2012."
Section 2.4 Section 12.22, Withdrawal by and Release of a City is hereby added to the
Contract as follows:
Section 12.22. Withdrawal by and Release of a City. Regardless of anything
contained herein to the contrary, but prior to the issuance of bonds or other
obligations by either a City or the BCRUA for the BCRUA Project, any of the
three Cities, in its sole discretion, may elect to withdraw from this Contract
(hereinafter referred to as the "Withdrawing City") and the non -withdrawing
Cities (hereinafter referred to as the "Non -withdrawing City(ies)"), specifically
agree that the Withdrawing City is and shall be fully released from the Contract,
(i)
for any reason prior to May 1, 2009; or
(ii) if the BCRUA has not sold bonds, or any Non -withdrawing City
has not otherwise provided for funding for its total allocations of the
BCRUA Project Costs through a separate bond issue on or before July 1,
2009.
The Withdrawing City's withdrawal from the Contract shall be effective upon the
Withdrawing City's written notice to the other Parties of its withdrawal as provided in
Section 12.7 of this Contract. Upon notice of such withdrawal, the Non -withdrawing
City(ies) and the BCRUA agree to release the Withdrawing City from this Contract and
upon such withdrawal and release, the Withdrawing City shall no longer be a party to and
shall be released from all obligations and liabilities of this Contract, including but not
limited to any obligations to make Annual Payments to the BCRUA. The Non -
withdrawing City(ies) agree that upon the provision of such notice by the Withdrawing
City pursuant to this section, the Withdrawing City's withdrawal and the Non -
withdrawing City(ies) release of the Withdrawing City shall be effective as provided
herein and shall not require further action by any Party. In addition, within ninety (90)
days of the notice of the Withdrawing City's withdrawal and release, the Withdrawing
City shall convey all of its interests in the Engineering Reports, Land Interests acquired
in the acquisition contracts listed herein below as (i) and (ii) by delivering to the Non -
withdrawing City(ies) all necessary and appropriate conveyance documents, deeds, bill of
sales, assignments, etc. that may be reasonably required by the Non -withdrawing
City(ies). Likewise, within said ninety (90) day period, the Non -withdrawing City(ies)
shall reimburse the Withdrawing City for the costs incurred by the Withdrawing City as
defined in and made pursuant to the following agreements: (i) the Easement Acquisition
Costs pursuant to the First Amended Interlocal Agreement Regarding Acquisition of
Easements for Construction of a Raw Water Transmission Line Along Trails End Road
effective July 24, 2008; and (ii) the Real Estate Acquisition Costs pursuant to the
3
Interlocal Agreement Regarding Acquisition of Real Property for a Regional Water
Treatment Plant Site effective January 3, 2008. The Withdrawing City is also released
from any further costs associated with the Interlocal Agreement Regarding Ancillary
Consulting Services For Regional Water System dated February 28, 2007 and any
operation and maintenance expenses associated with the New Hope waterline constructed
pursuant to the Interlocal Agreement Regarding Construction Of Regional Waterline
dated March 23, 2006.
In the event that Cedar Park is the Withdrawing City, Cedar Park specifically agrees to
the following:
(i) that despite its election to withdraw from the Master Contract Cedar Park
agrees to continue to be bound by the terms and provisions of the Interlocal
Agreement Regarding Construction of Regional Water Line, dated March, 2006;
and
(ii) that Cedar Park agrees not to oppose, but to reasonably cooperate with the
BCRUA's, Leander's and/or Round Rock's efforts to obtain legal rights from
LCRA or any other necessary person or entity to construct a floating barge and
intake point on the tract owned by LCRA which is also the location of Cedar
Park's existing floating barge and intake point.
ARTICLE III
MISCELLANEOUS
Section 3.1 To the extent necessary to effect the terms and provisions of this First
Amendment, the Contract is hereby amended and modified. In all other respects, the aforesaid
Contract is hereby ratified and confirmed.
Section 3.2 This First Amendment may be executed in counterparts, each of which shall be an
original and all of which together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto acting under authority of their respective
governing bodies have caused this First Amendment to be duly executed as of the day and year
first above written.
(SIGNATURES ON FOLLOWING PAGES)
4
BRUSHY CREEK REGIONAL UTILITY AUTHORITY, INC.
Attest:
By:
John Cowman, Secretary
By:
Scott Rhode, President
5
Attest:
By:
LeAnn Quinn, City Secretary
CITY OF CEDAR PARK, TEXAS
By:
Bob Lemon, Mayor
6
Attest:
By:
Debbie Haile, City Secretary
CITY OF LEANDER, TEXAS
By:
John Cowman, Mayor
7
Attest:
By:41.1/1MA1/ t/gii"LC
Sara White, City Secretary
CITY OF ROUND ROCK, TEXAS
By:
Alan McGraw, Mayor
8