R-85-792 - 12/12/1985RESOLUTION NO. 792R
WHEREAS, Hardrock Joint Venture is the owner of land in Round Rock's
ETJ, and
WHEREAS, the property owners wish to enter into a utility service
agreement, and
WHEREAS, said agreement has been submitted to the Round Rock City
Council for consideration, and
WHEREAS, the City of Round Rock is willing to enter into said
utility service agreement, 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 utility service agreement with Hardrock Joint
Venture, a copy of said agreement being attached hereto and incorporated
herein for all purposes.
RESOLVED this L.ii day of
ATTEST:
LAND, City ecretary
MIKE ROBINS(IN, Mayor
City of Round Rock, Texas
STATE OF TEXAS §
COUNTY OF WILLIAMSON §
AGREEMENT
THIS AGREEMENT is made and entered into between the City of
Round Rock, Williamson County, Texas, a municipal corporation,
acting herein by and through its duly authorized designee
(hereafter "City"), and Hardrock Joint Venture, a Texas Joint
Venture (hereafter "Hardrock").
RECITALS
WHEREAS, Hardrock is the supplier of water and wastewater
utilities for several tracts of land situated in Williamson
County, Texas (hereafter "Property"), such tracts being adjacent
to the western perimeter of the Round Rock city limits, and
containing approximately 40 acres of land, as shown more fully on
Exhibit A, attached hereto.
WHEREAS, the Property is composed of several tracts of land
owned by Hardrock Joint Venture, a Texas Joint Venture, Quantum
Investments, Inc., and Gay Carpenter Ruggiano, (hereafter
"Hardrock tracts"), and several tracts of land owned by other
landowners, as described in Exhibit A.
WHEREAS, Hardrock presently operates a 20,000 gallon per day
(30 -day average) wastewater treatment facility pursuant to
authorization found in Permit No. 11342,
Water Quality Board on September 27, 1972.
WHEREAS, Hardrock has pending before
issued by
the
Texas
the Texas Water
Commission an application to increase the permitted flow under
Permit No. 11342 from 20,000 gallons per day (30 -day average) to
40,000 gallons per day (30 -day average) so as to accommodate the
wastewater service needs of the Property.
WHEREAS, Hardrock desires to contract with City for bulk
wastewater service for the Property, dismiss its application to
expand its wastewater treatment facilities, and cease operation
of such existing facilities.
WHEREAS, Hardrock desires to purchase up to 330 living unit
equivalents (1.u.e.$) of capacity in City wastewater treatment
facilities (as the term "living unit equivalent" is defined by
City ordinance) for the existing and future development of the
Property.
WHEREAS, City has agreed to sell Hardrock up to 158 1.u.e.s
of capacity in City wastewater treatment plants so as to provide
service to a mobile home park, and has agreed to provide an
additional 172 1.u.e.s at such time as the Hardrock tracts are no
longer used as a mobile home park.
WHEREAS, the parties hereto agree that the sewer service fees
to be paid by Hardrock for the first 158 1.u.e.s shall be those
fees that are in effect at the time Hardrock purchases such
1.u.e.s, and which are applicable to the fees associated with
tri-plex, four-plex and multi-family residential units in the
City.
WHEREAS, the parties hereto agree that the sewer service fees
to be paid by Hardrock for the additional 172 1.u.e.s shall be
those fees that are in effect at the time of purchase of such
1.u.e.s and which are applicable to the fees associated with the
intended and proposed land use of the Hardrock tracts.
WHEREAS, so that City can accurately compute the volume of
wastewater contributed by the Property, Hardrock shall pay for
and install a wastewater metering device, accurate to within +5,
at the point at which Hardrock will tie into City's wastewater
collection system. Hardrock shall provide the City with at least
3 days written notice of the proposed installation of this
metering device.
WHEREAS, it is agreed that Hardrock will be billed monthly
for the bulk wastewater service authorized by this Agreement at a
rate of twice the applicable in -city rate established by City
ordinance, such billing being based on the monthly metered volume
of wastewater generated within the Property and deposited in the
City's wastewater collection system.
NOW THEREFORE, IN CONSIDERATION OF THESE PREMISES, THE
MUTUAL PROMISES AND COVENANTS CONTAINED HEREIN, AND FOR OTHER
GOOD AND VALUABLE CONSIDERATION, THE SUFFICIENCY OF WHICH ARE
HEREBY ACKNOWLEDGED BY THE PARTIES HERETO, CITY AND HARDROCK
EXPRESSLY AGREE AS FOLLOWS:
1. This contract and all the terms and provisions hereof
shall be liberally construed to effectuate the purposes hereof
and sustain the validity of the contract. Unless the contract
otherwise requires, words of the singular number shall be
construed to include correlative words of the plural number and
vice versa. The parties agree that this Contract shall not be
construed in favor of or against either party on the basis that
the party did or did not author same.
2. Upon final execution of this contract, and subject to
the provisions contained herein, City will provide plant
wastewater capacity and shall provide wastewater service to the
Property at such time and to the extent that wastewater line
capacity is available to the Property.
3. Hardrock intends to maintain ownership of all facilities
and lines within the Property. Hardrock agrees to construct all
new collection system lines within the Property in accordance
with plans and specifications approved by City, and subject to
inspection by City staff during such construction.
4. City commits to furnish Hardrock and Hardrock agrees
to purchase, within ninety (90) days of the completion of a
collection line having the capacity to service the Property and
completion of a tie-in to such line from Hardrock's collection
system, up to 75 1.u.e.s of capacity in City wastewater treatment
plants. Hardrock shall be authorized to make payment to the City
of a one-time sewer inspection fee, a one-time sewer tap fee, and
a sewer service fee for each such 1.u.e. that Hardrock exercises
an option to purchase, all such fees being equivalent to those in
effect at the time of purchase that are associated with and are
relevant to wastewater fees applicable to tri-plex, four-plex and
multi-family residential units in the City.
5. Within 30 days of the purchase by Hardrock of up to 75
1.u.e.s of capacity in City wastewater treatment plants,
completion of construction of a wastewater collection line having
capacity to accommodate flows generated from the Property, and
completion of a tie-in to such collection line from Hardrock's
collection system, Hardrock shall cease operation and use of its
wastewater treatment plant.
6. Within one year of the tie-in to a City wastewater
collection line, Hardrock shall be authorized to purchase an
additional 83 1.u.e.s at the rate in effect at the time of
purchase that are associated with and are relevant to wastewater
fees applicable to tri-plex, four-plex and multi-family
residential units in the City.
7. Upon a change in use of the Hardrock tracts from a
mobile home park, the City agrees that wastewater treatment
capacities, to the extent of an additional 172 1.u.e.s, will be
available to serve the Hardrock tracts, subject to there being
sufficient collection line capacity available to Hardrock to
accomodate the flows which would be generated by the use of these
additional 1.u.e.s.
8. Contingent upon approval by any regulatory agency having
jurisdiction over the establishment of utility rates, Hardrock
shall be billed monthly for wastewater service, such billing
being based on the metered figure for wastewaters contributed
from the Property to City's wastewater collection system at the
rate of twice the applicable in -city rate established by City
ordinance.
9. Hardrock shall pay for and shall install a wastewater
metering device, accurate to within ±5%, at the point at which
Hardrock will tie into City's wastewater collection system.
Hardrock shall provide the City with at least 3 days written
notice of the proposed installation of this metering device.
Hardrock agrees to have the wastewater meter calibrated every six
(6) months, after ten (10) days written notice to City, and if it
is determined after such calibration that the meter has not been
fully measuring the volume of wastewater generated within the
Property and deposited into the City's wastewater collection
system, Hardrock shall so notify City in writing, detailing the
extent to which the meter has not been fully measuring the volume
of wastewater contributed from the Property, and shall make
payment to City of three times the amount of this deficit, at the
above referenced rate applicable for service.
10. Hardrock shall, on or before the fifteenth (15th) day
following the monthly billing from City, provide payment to City.
If payment is not received by City by the due date, Hardrock
shall be deemed delinquent and shall be responsible for paying
City the amount billed, together with a late fee of ten percent
(10%) of the total amount due. City shall immediately notify
Hardrock in writing when any such payment has become delinquent,
and if such delinquency is not removed within ten (10) days after
such written notice, City, at its discretion, may cease rendering
services to Hardrock under the terms of this Agreement. After
services have ceased to be rendered, City, at its discretion may
notify Hardrock of its intention to declare this Agreement
forfeited and null and void. Upon such notice, Hardrock shall
have fifteen (15) days to pay all delinquent charges, together
with the late fees described above, in order to reinstate
services prior to final action by City declarinq this .creement
forfeited and null and void. All amounts due and owing to City
by Hardrock shall, if not paid when due, bear interest at the
rate of interest authorized by City ordinance at the time from
the date when due until paid. If any amount due and owing by
Hardrock to City is placed with an attorney for collection,
Hardrock shall pay to City in addition to all other payments
provided for herein, including interest, all reasonable attorney
fees incurred and he City for collection of said payment, debt,
and fees.
11. After payment to City of applicable fees described
herein for the costs of 1.u.e.s, Hardrock may transfer such
1.u.e.s to any other tract of land owned by Hardrock that is in
the same City wastewater service area as the Property, such
service area being described on the map attached hereto as
Exhibit B. If Hardrock does not own or have an interest in other
tracts within the same City wastewater service area as the
Property, or does not desire to use any 1.u.e.s purchased but not
then utilized on such tracts, Hardrock may assign or transfer
such 1.u.e.s to another owner of land within the same City
wastewater service area as the Property, subject to the
requirements that Hardrock provide City with written notice of
its intent to assign or transfer such rights, and provide City
the opportunity, within thirty (30) days of receipt of such
written notice, to purchase such 1.u.e.s from Hardrock at the
same price that such 1.u.e.s were sold by City to Hardrock. If
the City does not exercise this option and make such payment
within thirty (30) days of the written notice described herein,
Hardrock may assign or transfer such 1.u.e.s to another who is in
the same City wastewater service area, as described in Exhibit B.
12. If, by reason of Force Majeure, any party hereto shall
be rendered wholly or partially unable to carry out its obliga-
tions under this Agreement, then such party shall give written
notice and the full particulars of such Force Majeure to the
other party within a reasonable time after the occurrence
thereof. The obligations of the party giving such notice, to the
extent affected by such Force Majeure, shall be suspended during
the continuance of the inability claimed, but for no longer
period, and any such party shall endeavor to remove or overcome
such inability with all reasonable dispatch. The term "Force
Majeure", as employed herein, shall mean and refer to acts of
God, acts of public enemies, insurrections, riots, epidemics,
landslides, floods or earthquakes.
13. Unless specified otherwise herein, any notice required
or appropriate hereunder shall be sent by mail or hand delivered
to the City Manager of City and to Hardrock at the address shown
below the appropriate signature to this Agreement. Any notice of
breach of this Agreement, notice of forfeit, or notice of force
majeure by either party shall be sent by registered mail or hand
delivered, to the addresses stated below.
14. Any provision of this Agreement may be modified only by
mutual written agreement of the parties.
15. This document embodies the entire Agreement between the
parties relative to the subject matter hereof and no verbal
agreements of any kind shall be binding or recognized or in any
way modify this Agreement.
16. The rights and remedies provided by this Agreement are
cumulative and the use of any one right or remedy by either party
shall not preclude or waive its right to use any or all other
remedies. Said rights and remedies are given in addition to any
other rights the parties may have by law, statute, ordinance, or
otherwise.
17. No waiver by the parties hereto of any default or breach
of any term, condition, or covenant of this Agreement shall be
deemed to be a waiver of any other breach of the same or any
other term, condition, or covenant contained herein.
18. In the event that either Hardrock or City shall breach
or fail to perform any of the provisions of this Agreement, the
aggrieved party shall promptly notify the other party of the
breach or failure to perform. In the event such breach or
failure to perform is not cured within thirty (30) days after the
receipt of such notice, the party sending the notice, at its
discretion, may notify the other party of its intention to
declare this Agreement forfeited and null and void. Upon receipt
of such notice the violating party shall have thirty (30) days to
cure such violation prior to final action by the other party
declaring this Agreement forfeited and null and void. Any notice
requirement under the terms of this section shall be in writing
and shall be delivered by registered mail, or by personal
service, to the addresses of the parties as listed below.
19. In the event either party breaches any of the terms of
this Agreement whereby the party not in default employs attorneys
to protect or enforce its rights hereunder and prevails, then the
defaulting party agrees to pay the other party reasonable
attorneys' fees so incurred by such other party.
20. If any word, phrase, clause, paragraph, part or
provision of this Agreement or the subparagraphs contained herein
or the application thereof to any person or circumstance shall be
held to be invalid or unconstitutional, the remainder of this
Agreement shall nevertheless be valid, and the City and Hardrock
hereby declare this Agreement would have been enacted without
such invalid or unconstitutional word, phrase, clause, paragraph,
part or provisions.
21. This Agreement may be executed in a
number of counter-
parts, each of which shall, for all purposes, be deemed to be an
original and all such counterparts shall
be
together constitute and
one and the same instrument. rL
EXECUTED IN MULTIPLE ORIGINALS on this theaday of
attotiV, 1985.
test:
Q/YIrnR�
ty Secretary
Attest:
BY:
Mayor
214 East Main
Round Rock, Texas
CITY OF ROUND ROCK
BY:
THE STATE OF TEXAS
COUNTY OF WI LLI AMSON
78664
HARDROCK JOINT VENTURE,
JOINT VENTURE .,
Je
A TEXAS
President
5326 Valburn
Austin, Texas
Circle
78731
BEFORE ME, the undersigned authority, on this day personally
A,
appeared / ,I(.44.4_-pu , known to me to be the person
whose name is subscribed to the foregoing
after being by me duly sworn, stated upon
Mayor of the City of Round Rock, and that
behalf of said City of Round Rock for the
instrument, and who,
his oath that he is the
he executed the same on
purposes and considera-
tion and in the capacity therein expressed.
WITNESS MY HAND AND SEAL OF OFFICE this the /2.. day of
ke/AnA.L
, 19Sf.
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is
NOT'
Y PUBLIC, THE lily OF TEXAS
V:27/1 /CE L•
Printed Name of Notary
My commission
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expires:7/1/#
ublic
THE STATE OF TEXAS
COUNTY OF TRAVIS
BEFORE ME,
appeared .
the undersigned authority, on this day personally
, known to me to be the person
whose name is subscribed to the foregoing instrument, and who,
after being by me duly sworn, stated upon his oath that he is the
President of Hardrock Joint Venture, a Texas Joint Venture, and
that he executed the same on behalf of said joint venture for the
purposes and consideration and in the capacity therein expressed.
WITNESS MY HAND AND SEAL OF OFFICE this the f/t day of
�1�,1,lQJr.y
19j.
STATE OEC TEXAS
j/?CQtLtL/,)& y�c�� r
rinted Name of Notary Public
My commission expires: r?f�/
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