R-09-04-09-11C1 - 4/9/2009RESOLUTION NO. R -09-04-09-11C1
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 wishes to enter into an
Interlocal Agreement with the City of Cedar Park and the City of
Leander Regarding Due Diligence Services for the Deep Water Intake
Site for the Regional 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 with the City of Cedar
Park and the City of Leander, 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 9th day of April, 2009.
ALAN MCGRAW, Mayor
City of Round Rock, Texas
SARA L. WHITE, City Secretary
0:\WDOX\RESOLUTI\R90909C1.DOC/rmc
INTERLOCAL AGREEMENT REGARDING
DUE DILIGENCE SERVICES FOR THE DEEP WATER INTAKE SITE
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
§
§
§
KNOW ALL BY THESE PRESENTS:
THIS INTERLOCAL AGREEMENT REGARDING DUE DILIGENCE
SERVICES FOR THE DEEP WATER INTAKE SITE ("Agreement") is entered into
between the City of Round Rock, Texas, a Texas home -rule city ("Round Rock"); the City of
Cedar Park, Texas, a Texas home -rule city ("Cedar Park"), and the City of Leander, Texas, a
Texas home -rule city ("Leander"). In this Agreement, Round Rock, Cedar Park and Leander are
sometimes individually referred to as " Party" and collectively referred to as "Parties".
Recitals
WHEREAS, the growth of the Cities of Round Rock, Cedar Park and Leander
necessitates the development of additional water supplies for each of these communities; and
WHEREAS, the Parties have agreed to jointly pursue a regional water supply system
that will ultimately provide an additional 105.8 million gallons per day of potable water supply
to meet future water demands of the Parties based on projected population growth; and
WHEREAS, Round Rock, Cedar Park and Leander, have previously entered into
multiple agreements in anticipation of the regional water supply system; and
WHEREAS, the Parties desire to proceed with the due diligence study of the proposed
site for the 141.7 million gallons per day deep water intake facility ("Deep Water Intake Site");
and
WHEREAS, the purpose of this Agreement is to set forth the terms and conditions
pursuant to which the Parties shall authorize consulting services related to the Deep Water Intake
Site, and pursuant to which the Parties will cost participate in all costs and expenses related
thereto.
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:
1.01 "Agreement" means this Interlocal Agreement Regarding Due Diligence Services for the
Deep Water Intake Site.
156690
EXHIBIT
2 ., A"
1.02 "Cedar Park" means the City of Cedar Park, Texas.
1.03 "Cost Allocation Percentage" means the percentage of Due Diligence Costs to be paid by
each Party. The Cost Allocation Percentages are set forth on Exhibit "A" attached hereto.
1.04 "Design & Oversight Committee" or "D.O. Committee" means the engineering
representative(s) selected by each Party for purposes of overseeing the implementation of the
Due Diligence Services.
1.05 "Due Diligence Contract" means that certain contract for engineering services to be
approved by the Parties pursuant to which the Project Consultant shall provide Due Diligence
Services.
1.06 "Due Diligence Costs" means all costs and expenses incurred by the Parties pursuant to
the Due Diligence Contract for Due Diligence Services.
1.07 "Due Diligence Fund" means a fund to be established and administered by Round Rock
in accordance with Section 4.03 in order to provide monies to pay the Due Diligence Costs.
1.08 "Due Diligence Services" means the preliminary engineering and other services to be
performed by the Project Consultant pursuant to the Due Diligence Contract(s).
1.09 "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.
1.10 "Leander" means the City of Leander, Texas.
1.11 "Party" or "Parties" means Cedar Park, Round Rock, and/or Leander, individually or
collectively, as applicable.
1.12 "Project Consultant" means the firm which is a party to the Due Diligence Contract.
1.13 "Regional Project" means the regional water supply system, which will ultimately
provide an additional 105.8 million gallons per day of potable water supply to meet future water
demands of the Parties.
1.14 "Round Rock" means the City of Round Rock, Texas.
II.
DESIGN AND OVERSIGHT COMMITTEE
2.01 Composition of D.O. Committee. There is hereby created a Design & Oversight
Committee ("D.O. Committee") to be composed of one representative appointed by each Party.
The following persons are hereby designated as the initial members of the D.O. Committee:
Kenneth Wheeler on behalf of Cedar Park; Wayne Watts on behalf of Leander; and Don Rundell
on behalf of Round Rock. Each representative of a Party shall serve at the will of the governing
body (or its designee) that the person represents. Upon the incapacitation, resignation, or
revocation of the power of such representative , the governing body of the appropriate Party (or
156690 2
its designee) shall promptly appoint a new representative to the D.O. Committee, and shall
immediately notify the other Parties in writing of such appointment. Each Party may appoint one
or more alternate representatives as it deems necessary and proper.
2.02 Responsibility of D.O. Committee. The D.O. Committee shall:
(i) Attend and participate in regular meetings with the Project
Consultant to monitor the status of the Due Diligence Services and to provide direction
and recommendations with respect thereto;
(ii) Review and unanimously approve in writing the due diligence
report produced by the Project Consultant;
(iii) Review and unanimously approve in writing any revisions to the
scope of Due Diligence Services to be performed by Project Consultant;
(iv) Confirm in writing the final completion of Due Diligence Services
under the Due Diligence Contracts; and
(v) Address any other pertinent matters relating to the Due Diligence
Services.
The D.O. Committee shall meet at regular intervals to review the matters over which it has
authority. The D.O. Committee shall be diligent, prompt and timely in reviewing and acting on
matters submitted to it.
III.
DUE DILIGENCE SERVICES
3.01 Due Diligence Services.
(a) The Parties intend to enter into a Due Diligence Contract in the form
unanimously approved by the Parties.
(b) Once approved, the scope of Due Diligence Services, including any
proposed changes to a Project Consultant's compensation in connection therewith, may only be
modified by unanimous written authorization from the Parties, which authorization shall be set
forth in a "Supplemental Contract" executed by each Party.
(c) The Parties acknowledge that this Agreement will be managed by the D.O.
Committee.
3.02 D.O. Committee Participation.
(a) The D.O. Committee shall prepare a schedule of meetings with the Project
Consultant that shall be approved by all members of the D.O. Committee. The foregoing shall
not be construed to prohibit any Party from communicating with Project Consultant regarding
the Due Diligence Services without the presence or participation of the other Parties, or from
156690 3
meeting with the Project Consultant when it is not practicable to schedule a meeting with the
D.O. Committee.
(b) Within ten (10) business days of receipt of any preliminary and/or final
reports prepared by the Project Consultant, the members of the D.O. Committee shall specify in
writing to each other any objections regarding the draft reports, and any proposed revisions
thereto. If any member of the D.O. Committee fails to object in writing to the report within the
10 -business -day period, then that member shall be deemed to have approved the draft report. In
the event that any member of the D.O. Committee timely objects to the draft report, then the
D.O. Committee shall endeavor in good faith to resolve the matter by unanimous agreement. If
the D.O. Committee cannot unanimously agree to the proper resolution within fifteen (15)
business days, then the D.O. Committee shall refer the dispute to the City Managers Committee.
The City Managers Committee shall work diligently and in good faith to resolve the dispute as
quickly as possible so as not to jeopardize the completion of the Regional Project in accordance
with the Project Schedule.
3.03 Work Product.
(a) Any Party is entitled to copies of any work product produced by the
Project Consultant in connection with the Due Diligence 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
Due Diligence Contract, the Parties may utilize the work product produced by the Project
Consultant for their own purposes.
IV.
PAYMENT OF DUE DILIGENCE COSTS.
4.01 Payment of Due Diligence Costs.
(a) All Due Diligence Costs shall be shared by the Parties according to the
Cost Allocation Percentages, as set forth in Exhibit "A" attached hereto.
(b) The Parties agree that Project Consultant will be instructed to send all
invoices to Round Rock and that upon receipt of each invoice from the Project Consultant,
Round Rock shall review the invoice and confirm that the Due Diligence Services have been
completed in accordance with the request for payment.
(c) Upon Round Rock's approval of each invoice for Due Diligence Services,
Round Rock will transmit a copy of the approved invoice to the Cedar Park and Leander
representatives on the D.O. Committee. Within ten (10) business days of receipt of the invoice
for payment, the members of the D.O. Committee shall specify in writing to Round Rock any
objections regarding the invoice for payment. If any member of the D.O. Committee fails to
object in writing to the invoice within the ten (10) business day period, then the Party
represented by such D.O. Committee member shall be deemed to have approved the invoice for
156690 4
payment. In the event that any member of the D.O. Committee 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
the Project Consultant, then the D.O. Committee shall exercise all rights to which it is
entitled under the Due Diligence Contract to resolve the dispute, require correction of
the defective work, and otherwise address the concern of the objecting member of the
D.O. Committee.
(ii) In the event that any member of the D.O. Committee objects to an
invoice for reasons not related to the performance of work or services by the Project
Consultant, then the D.O. Committee shall endeavor in good faith to resolve the matter
by unanimous agreement. If the D.O. Committee 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. Any such request for dispute resolution must be
brought within thirty (30) calendar days of the date of written objection.
(d) In the event of termination of this Agreement prior to the completion of
the Regional Project, all Parties shall provide payment of their pro rata share of the Due
Diligence Costs incurred prior to and through the date of the termination.
4.02 Due Diligence Fund.
(a) The Parties shall contribute monies to the Due Diligence Fund in
accordance with the following provisions:
(i) Within ten (10) calendar days of execution of the Due Diligence
Contracts by the Parties, each Party shall deposit into the Due Diligence Fund a sum
("the Due Diligence Payment"), which represents twenty five percent (25%) of each
Party's share of the estimated Due Diligence Costs. Each Party's estimated Due
Diligence Payment, based on the estimated Due Diligence Costs set forth in Exhibit
"A" attached hereto, is set forth below:
1) Round Rock- $16,534.75;
2) Leander- $25,132.35; and
3) Cedar Park- $15,765.15.
(ii) At such time as the balance in the Due Diligence Fund is
substantially depleted, as determined 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 (30) calendar days to deposit into the Due Diligence
Fund an additional Due Diligence 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 Due Diligence Fund.
156690 5
(iii) The foregoing process shall continue until such time as the Due
Diligence Costs have been paid in full. In the event that the Due Diligence Costs exceed
the original estimate, then each Party shall thereafter deposit within the Due Diligence
Fund a sum equal to the product determined by multiplying each Party's Cost
Allocation Percentage by the Due Diligence Costs for such services.
(b) In the event that there are remaining funds within the Due Diligence Fund
upon final completion of the Due Diligence Services, 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 Due Diligence 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 Due Diligence Fund shall remain
within such fund for payment of Due Diligence Costs.
4.04 Disputes. In the event of any disputes among the Parties, the Parties agree that the City
Managers Committee shall work diligently and in good faith to resolve the dispute as quickly as
possible so as not to jeopardize the completion of the Regional Project in accordance with the
Project Schedule.
V.
GENERAL PROVISIONS
5.01 Authority. This Agreement is made in part under the authority conferred in Chapter 791,
Texas Government Code and Section 402.001, 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.
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 Due Diligence
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 Regional 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.
156690 6
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.
5.08 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:
CEDAR PARK:
with copy to:
ROUND ROCK:
with copy to:
Leander:
156690 7
600 North Bell Blvd.
Cedar Park, Texas 78613
Attn: Sam Roberts
Telephone: (512) 258-4121 x6321
Facsimile: (512) 258-6083
Email: roberts(cr�,ci.cedar-park.tx.us
Charles Rowland
600 N. Bell Blvd.
Cedar Park, Texas 78613
Telephone: (512) 401-5004
Facsimile: (512)
Email: charles.rowland@cedarparktx.us
221 East Main
Round Rock, Texas 78664
Attn: Jim Nuse
Telephone: (512) 218-5410
Facsimile:(512) 218-7097
Email: jnuse@round-rock.tx.us
Steve Sheets
309 E. Main Street
Round Rock, Texas 78664-5264
Telephone: (512) 255-8877
Facsimile: (512) 255-8986
Email: slsheets@sheets-crossfield.com
Wayne Watts
P.O. Box 319
Leander Texas 78646-0319
Telephone: (512) 259-1178
Facsimile: (512) 259-1605
Email: w.watts@ci.leander.tx.us
with copy to:
Diana Granger
223 W. Anderson Lane, Suite A-105
Austin, Texas 78752
Telephone: (512) 323-5778
Telecopy: (512) 323-5773
Email: attorneys@cityattorneytexas.com
5.09 Force Majeure. No Party to this Agreement shall be deemed in violation of this
Agreement if prevented from performing any of its obligations hereunder by reasons for which it
is not responsible or circumstances beyond its control. However, notice of such impediment or
delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its
effects.
5.10 Exhibits. The following exhibits are attached to this Agreement and incorporated herein
by reference:
Exhibit A - Cost Allocation Percentages
5.11 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.
5.12 Authority. Each Party represents and warrants that it has the full right, power and
authority to execute this Agreement
[SIGNATURES ON FOLLOWING PAGES]
156690 8
CITY OF ROUND ROCK:
ATTEST:
By:
Sara White, City Secretary Alan McGraw, Mayor
Date:
156690 9
CITY OF CEDAR PARK:
ATTEST:
By:
LeAnn Quinn, City Secretary Bob Lemon, Mayor
Date:
156690 10
CITY OF LEANDER:
ATTEST: By:
John Cowman, Mayor
Debbie Haile, City Secretary
Date:
156690 11
EXHIBIT A
COST ALLOCATION
Phase/Segment
Capacity
(MGD)
Cost
Allocation
Final Design
Costs
Due Diligence Allocation of Costs
Cedar Park
38.9
27.45%
$63,060.61
Leander
62.0
43.76%
$100,529.41
Round Rock
40.8
28.79%
$66,138.98
Total
141.7
100.00%
$229,729.00
25% Payment
Initial •
Cedar Park
$15,765.15
Leander
$25,132.35
Round Rock
$16,534.75
156690 12
DATE: April 1, 2009
SUBJECT: City Council Meeting — April 9, 2009
ITEM: 11C1. Consider a resolution authorizing the Mayor to execute an Interlocal Agreement
regarding Due Diligence Services for the Deep Water Intake Site for the Regional
Water Project with the Cities of Cedar Park and Leander.
Department:
Staff Person:
Justification:
Water and Wastewater Utilities
Michael Thane, P.E., Director of Utilities
This agreement sets forth the terms and conditions pursuant to which the Cities shall authorize due
diligence services related to the Phase 2 Deep Water Intake Site and associated Raw Water Pipeline for
the Brushy Creek Regional Water system. The agreement outlines the method in which the Cities will
cost participate in all costs and expenses related to the services. The costs shall be shared by the Cities
according to their ultimate capacity allocation percentage in the Deep Water Intake facility. The cost
allocations for these facilities are Round Rock 28.79%; Cedar Park 27.45%; and Leander 43.76%.
Funding:
Cost: $66,138.98
Source of funds: Capital Project Funds (Self -Financed Utility)
Outside Resources: Cities of Cedar Park and Leander
Jacobs Engineering Group, Inc.
Background Information:
The Cities of Round Rock, Cedar Park, and Leander have agreed to jointly pursue a Regional Water
System that will ultimately provide an additional 105.8 million gallons per day (mgd) of potable water to
meet future water demands of the Cities based on projected population growth. The Deep Water Intake
facility will be able to provide 141.7 mgd of raw water to the three Cities. The intake facility will pump
water from Lake Travis to the regional water treatment plant, as well as to the existing Cedar Park and
Sandy Creek water treatment plants.
Public Comment: N/A
EXECUTED
DOCUMENT
FOLLOWS
INTERLOCAL AGREEMENT REGARDING
DUE DILIGENCE SERVICES FOR THE DEEP WATER INTAKE SITE
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
KNOW ALL BY THESE PRESENTS:
THIS INTERLOCAL AGREEMENT REGARDING DUE DILIGENCE
SERVICES FOR THE DEEP WATER INTAKE SITE ("Agreement") is entered into
between the City of Round Rock, Texas, a Texas home -rule city ("Round Rock"); the City of
Cedar Park, Texas, a Texas home -rule city ("Cedar Park"), and the City of Leander, Texas, a
Texas home -rule city ("Leander"). In this Agreement, Round Rock, Cedar Park and Leander are
sometimes individually referred to as " Party" and collectively referred to as "Parties".
Recitals
WHEREAS, the growth of the Cities of Round Rock, Cedar Park and Leander
necessitates the development of additional water supplies for each of these communities; and
WHEREAS, the Parties have agreed to jointly pursue a regional water supply system
that will ultimately provide an additional 105.8 million gallons per day of potable water supply
to meet future water demands of the Parties based on projected population growth; and
WHEREAS, Round Rock, Cedar Park and Leander, have previously entered into
multiple agreements in anticipation of the regional water supply system; and
WHEREAS, the Parties desire to proceed with the due diligence study of the proposed
site for the 141.7 million gallons per day deep water intake facility ("Deep Water Intake Site");'
and
WHEREAS, the purpose of this Agreement is to set forth the terms and conditions
pursuant to which the Parties shall authorize consulting services related to the Deep Water Intake
Site, and pursuant to which the Parties will cost participate in all costs and expenses related
thereto.
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:
1.01 "Agreement" means this Interlocal Agreement Regarding Due Diligence Services for the
Deep Water Intake Site.
156690
R' �r 0 �-- 04( 4 u
1
1.02 "Cedar Park" means the City of Cedar Park, Texas.
1.03 "Cost Allocation Percentage" means the percentage of Due Diligence Costs to be paid by
each Party. The Cost Allocation Percentages are set forth on Exhibit "A" attached hereto.
1.04 "Design & Oversight Committee" or "D.O. Committee" means the engineering
representative(s) selected by each Party for purposes of overseeing the implementation of the
Due Diligence Services.
1.05 "Due Diligence Contract" means that certain contract for engineering services to be
approved by the Parties pursuant to which the Project Consultant shall provide Due Diligence
Services.
1.06 "Due Diligence Costs" means all costs and expenses incurred by the Parties pursuant to
the Due Diligence Contract for Due Diligence Services.
1.07 "Due Diligence Fund" means a fund to be established and administered by Round Rock
in accordance with Section 4.03 in order to provide monies to pay the Due Diligence Costs.
1.08 "Due Diligence Services" means the preliminary engineering and other services to be
performed by the Project Consultant pursuant to the Due Diligence Contract(s).
1.09 "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.
1.10 "Leander" means the City of Leander, Texas.
1.11 "Party" or "Parties" means Cedar Park, Round Rock, and/or Leander, individually or
collectively, as applicable.
1.12 "Project Consultant' means the firm which is a party to the Due Diligence Contract.
1.13 "Regional Project" means the regional water supply system, which will ultimately
provide an additional 105.8 million gallons per day of potable water supply to meet future water
demands of the Parties.
1.14 "Round Rock" means the City of Round Rock, Texas.
II.
DESIGN AND OVERSIGHT COMMITTEE
2.01 Composition of D.O. Committee. There is hereby created a Design & Oversight
Committee ("D.O. Committee") to be composed of one representative appointed by each Party.
The following persons are hereby designated as the initial members of the D.O. Committee:
Kenneth Wheeler on behalf of Cedar Park; Wayne Watts on behalf of Leander; and Don Rundell
on behalf of Round Rock. Each representative of a Party shall serve at the will of the governing
body (or its designee) that the person represents. Upon the incapacitation, resignation, or
revocation of the power of such representative , the governing body of the appropriate Party (or
156690 2
its designee) shall promptly appoint a new representative to the D.O. Committee, and shall
immediately notify the other Parties in writing of such appointment. Each Party may appoint one
or more alternate representatives as it deems necessary and proper.
2.02 Responsibility of D.O. Committee. The D.O. Committee shall:
(i) Attend and participate in regular meetings with the Project
Consultant to monitor the status of the Due Diligence Services and to provide direction
and recommendations with respect thereto;
(ii) Review and unanimously approve in writing the due diligence
report produced by the Project Consultant;
(iii) Review and unanimously approve in writing any revisions to the
scope of Due Diligence Services to be performed by Project Consultant;
(iv) Confirm in writing the final completion of Due Diligence Services
under the Due Diligence Contracts; and
Services.
(v) Address any other pertinent matters relating to the Due Diligence
The D.O. Committee shall meet at regular intervals to review the matters over which it has
authority. The D.O. Committee shall be diligent, prompt and timely in reviewing and acting on
matters submitted to it.
III.
DUE DILIGENCE SERVICES
3.01 Due Diligence Services.
(a) The Parties intend to enter into a Due Diligence Contract in the form
unanimously approved by the Parties.
(b) Once approved, the scope of Due Diligence Services, including any
proposed changes to a Project Consultant's compensation in connection therewith, may only be
modified by unanimous written authorization from the Parties, which authorization shall be set
forth in a "Supplemental Contract" executed by each Party.
(c) The Parties acknowledge that this Agreement will be managed by the D.O.
Committee.
3.02 D.O. Committee Participation.
(a) The D.O. Committee shall prepare a schedule of meetings with the Project
Consultant that shall be approved by all members of the D.O. Committee. The foregoing shall
not be construed to prohibit any Party from communicating with Project Consultant regarding
the Due Diligence Services without the presence or participation of the other Parties, or from
156690 3
meeting with the Project Consultant when it is not practicable to schedule a meeting with the
D.O. Committee.
(b) Within ten (10) business days of receipt of any preliminary and/or final
reports prepared by the Project Consultant, the members of the D.O. Committee shall specify in
writing to each other any objections regarding the draft reports, and any proposed revisions
thereto. If any member of the D.O. Committee fails to object in writing to the report within the
10 -business -day period, then that member shall be deemed to have approved the draft report. In
the event that any member of the D.O. Committee timely objects to the draft report, then the
D.O. Committee shall endeavor in good faith to resolve the matter by unanimous agreement. If
the D.O. Committee cannot unanimously agree to the proper resolution within fifteen (15)
business days, then the D.O. Committee shall refer the dispute to the City Managers Committee.
The City Managers Committee shall work diligently and in good faith to resolve the dispute as
quickly as possible so as not to jeopardize the completion of the Regional Project in accordance
with the Project Schedule.
3.03 Work Product.
(a) Any Party is entitled to copies of any work product produced by the
Project Consultant in connection with the Due Diligence 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
Due Diligence Contract, the Parties may utilize the work product produced by the Project
Consultant for their own purposes.
IV.
PAYMENT OF DUE DILIGENCE COSTS.
4.01 Payment of Due Diligence Costs.
(a) All Due Diligence Costs shall be shared by the Parties according to the
Cost Allocation Percentages, as set forth in Exhibit "A" attached hereto.
(b) The Parties agree that Project Consultant will be instructed to send all
invoices to Round Rock and that upon receipt of each invoice from the Project Consultant,
Round Rock shall review the invoice and confirm that the Due Diligence Services have been
completed in accordance with the request for payment.
(c) Upon Round Rock's approval of each invoice for Due Diligence Services,
Round Rock will transmit a copy of the approved invoice to the Cedar Park and Leander
representatives on the D.O. Committee. Within ten (10) business days of receipt of the invoice
for payment, the members of the D.O. Committee shall specify in writing to Round Rock any
objections regarding the invoice for payment. If any member of the D.O. Committee fails to
object in writing to the invoice within the ten (10) business day period, then the Party
represented by such D.O. Committee member shall be deemed to have approved the invoice for
156690 4
payment. In the event that any member of the D.O. Committee 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
the Project Consultant, then the D.O. Committee shall exercise all rights to which it is
entitled under the Due Diligence Contract to resolve the dispute, require correction of
the defective work, and otherwise address the concern of the objecting member of the
D.O. Committee.
(ii) In the event that any member of the D.O. Committee objects to an
invoice for reasons not related to the performance of work or services by the Project
Consultant, then the D.O. Committee shall endeavor in good faith to resolve the matter
by unanimous agreement. If the D.O. Committee 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. Any such request for dispute resolution must be
brought within thirty (30) calendar days of the date of written objection.
(d) In the event of termination of this Agreement prior to the completion of
the Regional Project, all Parties shall provide payment of their pro rata share of the Due
Diligence Costs incurred prior to and through the date of the termination.
4.02 Due Diligence Fund.
(a) The Parties shall contribute monies to the Due Diligence Fund in
accordance with the following provisions:
(i) Within ten (10) calendar days of execution of the Due Diligence
Contracts by the Parties, each Party shall deposit into the Due Diligence Fund a sum
("the Due Diligence Payment"), which represents twenty five percent (25%) of each
Party's share of the estimated Due Diligence Costs. Each Party's estimated Due
Diligence Payment, based on the estimated Due Diligence Costs set forth in Exhibit
"A" attached hereto, is set forth below:
1) Round Rock- $16,534.75;
2) Leander- $25,132.35; and
3) Cedar Park- $15,765.15.
(ii) At such time as the balance in the Due Diligence Fund is
substantially depleted, as determined 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 (30) calendar days to deposit into the Due Diligence
Fund an additional Due Diligence 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 Due Diligence Fund.
156690 5
(iii) The foregoing process shall continue until such time as the Due
Diligence Costs have been paid in full. In the event that the Due Diligence Costs exceed
the original estimate, then each Party shall thereafter deposit within the Due Diligence
Fund a sum equal to the product determined by multiplying each Party's Cost
Allocation Percentage by the Due Diligence Costs for such services.
(b) In the event that there are remaining funds within the Due Diligence Fund
upon final completion of the Due Diligence Services, 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 Due Diligence 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 Due Diligence Fund shall remain
within such fund for payment of Due Diligence Costs.
4.04 Disputes. In the event of any disputes among the Parties, the Parties agree that the City
Managers Committee shall work diligently and in good faith to resolve the dispute as quickly as
possible so as not to jeopardize the completion of the Regional Project in accordance with the
Project Schedule.
V.
GENERAL PROVISIONS
5.01 Authority. This Agreement is made in part under the authority conferred in Chapter 791,
Texas Government Code and Section 402.001, 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.
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 Due Diligence
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 Regional 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.
156690 6
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.
5.08 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:
CEDAR PARK:
with copy to:
ROUND ROCK:
with copy to:
Leander:
156690 7
600 North Bell Blvd.
Cedar Park, Texas 78613
Attn: Sam Roberts
Telephone: (512) 258-4121 x6321
Facsimile: (512) 258-6083
Email: roberts@ci.cedar-park.tx.us
Charles Rowland
600 N. Bell Blvd.
Cedar Park, Texas 78613
Telephone: (512) 401-5004
Facsimile: (512)
Email: charles.rowland@cedarparktx.us
221 East Main
Round Rock, Texas 78664
Attn: Jim Nuse
Telephone: (512) 218-5410
Facsimile:(512) 218-7097
Email: jnuse(round-rock.tx.us
Steve Sheets
309 E. Main Street
Round Rock, Texas 78664-5264
Telephone: (512) 255-8877
Facsimile: (512) 255-8986
Email: slsheets(sheets-crossfield.com
Wayne Watts
P.O. Box 319
Leander Texas 78646-0319
Telephone: (512) 259-1178
Facsimile: (512) 259-1605
Email: w.watts@ci.leander.tx.us
with copy to:
Diana Granger
223 W. Anderson Lane, Suite A-105
Austin, Texas 78752
Telephone: (512) 323-5778
Telecopy: (512) 323-5773
Email: attorneys(2i cityattorneytexas.com
5.09 Force Majeure. No Party to this Agreement shall be deemed in violation of this
Agreement if prevented from performing any of its obligations hereunder by reasons for which it
is not responsible or circumstances beyond its control. However, notice of such impediment or
delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its
effects.
5.10 Exhibits. The following exhibits are attached to this Agreement and incorporated herein
by reference:
Exhibit A - Cost Allocation Percentages
5.11 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.
5.12 Authority. Each Party represents and warrants that it has the full right, power and
authority to execute this Agreement
[SIGNATURES ON FOLLOWING PAGES]
156690 8
Sara White, City Secretary
CITY OF ROUND ROCK:
By: 10 rn
Alan McGraw, Mayor
Date:
156690 9
ATTEST:
CITY OF CEDAR PARK:
By:
LeAnn Quinn, City Secretary
156690
tL" '-ot,°`t,llGl
Bob Lemon, Mayor
Date: _5.-�a� - 69
10
AT ST l /U
Debbie Haile, City Secretary
156690
Z --Ole t+ -!IG(
By:
CIY OF LEANDER:
Cowman, Mayor
Date: h9/
11
EXHIBIT A
COST ALLOCATION
Phase/Segment
Capacity
(MGD)
Cost
Allocation
Due Diligence Allocation of Costs
Cedar Park
Leander
Final Design
Costs
38.9
27.45%
Round Rock
62.0
43.76%
40.8
28.79%
$63,060.61
$100,529.41
Total
141.7
100.00%
$66,138.98
$229,729.00
25% Payment
Cedar Park
Leander
Round Rock
156690 12
Initial
$15,765.15
$25,132.35
$16,534.75