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R-09-01-22-9E4 - 1/22/2009RESOLUTION NO. R -09 -O1 -22-9E4 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 22nd day of January, 2009. 1/31 ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: SARA L. WHITE, City Secretary O:\WDOX\RESOLUTI\R90122E4.DOC/rmc 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 22nd day of January, 2009, 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 00152262 EXHIBIT 3 a nAn 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) the notice to proceed will be issued to the contractor, which will be deemed the commencement of construction, on the Phase I Raw Water Facilities as defined in the PDR by August 15, 2009; (ii) the notice to proceed will be issued to the contractor, which will be deemed the 2 commencement of construction on the water treatment plant component of the BCRUA Project by October 1, 2009, and (iii) the BCRUA Project will be 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 15, 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 3 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 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 No Text EXECUTED DOCUMENT FOLLOWS 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 22nd day of January, 2009, 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 00152262 ft_ -(39 1)1-2z- )� 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) the notice to proceed will be issued to the contractor, which will be deemed the commencement of construction, on the Phase I Raw Water Facilities as defined in the PDR by August 15, 2009; (ii) the notice to proceed will be issued to the contractor, which will be deemed the 2 commencement of construction on the water treatment plant component of the BCRUA Project by October 1, 2009, and (iii) the BCRUA Project will be 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 15, 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 3 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 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 Attest By: BRUSHY CREEK REGION, UTILITY AUTHORITY, INC. hn Cowman, Secretary By: ,Scott Rhode, President 5 Attest: By: - L797 LeAnn Quinn, City Secretary 2-41--0Vel-qct{' CITY OF CEDAR PARK, TEXAS By: 6 Bob Lemon, Mayor CITY OF LEANDER, TEXAS By: Attest: By: 11Wij J Debbie Haile, City Secretary 7 RRal- v1-221- Cowman, Mayor Attest: By Sara White, City Secretary 8 CITY OF ROUND ROCK, TEXAS By: rrl� Alan McGraw, Mayor