R-09-10-22-11E5 - 10/22/2009RESOLUTION NO. R -09-10-22-11E5
WHEREAS, Round Rock, the City of Austin, and the City of
Cedar Park (collectively, the "Cities") have entered into a contract
with the Lower Colorado River Authority ("LCRA") to purchase from
LCRA certain wastewater collection, treatment and disposal
facilities known as the Brushy Creek Regional Wastewater System (the
"System"); and
WHEREAS, Fern Bluff Municipal Utility District (the
"District") is currently a party to that certain "Subregional
Wastewater Disposal Contract" dated October 1, 2000 with LCRA and
the Brazos River Authority ("BRA") providing for the collection,
treatment and disposal of the District's wastewater flows by LCRA
utilizing the System; and
WHEREAS, in connection with the pending acquisition of the
System by the Cities, Round Rock proposes to provide wholesale
wastewater treatment and disposal services to the District; and
WHEREAS, the District and Round Rock desire to enter into
this Agreement in order to set forth the terms and conditions
pursuant to which Round Rock shall provide wastewater collection,
treatment and disposal services to the District, 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 Wastewater Service Agreement with the Fern
Bluff Municipal Utility District. A draft of said Agreement is
attached hereto as Exhibit "A" and incorporated herein for all
0:\wdox\SCC1nts\0112\0905\MUNICIPAL\R91022E5.DOC/rmc
purposes. The final version of the Agreement is subject to the
approval of the City Manager and City Attorney.
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 October, 2009.
ATTEST:
v1A, . (4Ake
SARA L. WHITE, City Secretary
2
MCGRAW, Mayor
City of Round Rock, Texas
CORR response to MUD response; clean; 10/16/09
WASTEWATER SERVICE AGREEMENT
BETWEEN THE
CITY OF ROUND ROCK
AND
FERN BLUFF MUNICIPAL UTILITY DISTRICT
This Wastewater Service Agreement ("Agreement") is entered into by and between the City of
Round Rock ("Round Rock") and Fern Bluff Municipal Utility District (the "District").
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITION OF TERMS. Certain of the capitalized terms and expressions
used in this Agreement, unless the context clearly shows otherwise, shall have the following
meanings:
A. "Agreement" means this agreement.
B. "Austin" means the City of Austin, Texas
C. "Cedar Park" means the City of Cedar Park, Texas
D. "Cities" mean the cities of Austin, Cedar Park, and Round Rock. To the extent that
Leander joins the System in accordance with the terms of the Master Contract, then the term
"Cities" shall also be deemed to include Leander.
E. "District" means the Fern Bluff Municipal Utility District.
F. "District Capital Charges" means the portion of Round Rock's debt necessary to serve
the District as established per Exhibit A. Should the City reasonably determine that an
opportunity exists in the financial markets to refinance the debt to achieve savings, Exhibit A
shall be amended to reflect such savings.
G. "District Contractual Flows" means the maximum amount of Wastewater, based upon
a 30 -day average flow, that is permitted to be discharged by the District into the Point(s) of Entry
for the System, as set forth in Exhibit B.
H. "District Operation and Maintenance Expense" means all reasonable expenses of
Round Rock for providing service to the District to the extent not included in the Round Rock
Flow Charges. For the purposes of this Agreement, the initial District Operation and Maintenance
Expense is agreed to be $ 750.00, per month, which amount will increase on each anniversary
date of this Agreement by three percent (3 %), compounded annually.
I. "District Surplus Capacity" means that portion of the surplus capacity in the System
previously financed by the District and constructed for the potential participation in the System
by Leander or another party, which is identified in Exhibit C attached hereto.
J. "District Wastewater Service Charges" means the charges to the District for Round
Rock Flow Charges and District Operation and Maintenance Expense.
J. "LCRA" means the Lower Colorado River Authority.
K. "Leander" means the City of Leander.
L. "Master Contract" means that certain Master Contract for the Financing, Construction,
Ownership and Operation of the Brushy Creek Regional Wastewater System, among City of
Austin, City of Cedar Park and City of Round Rock, together with any amendments or
supplements thereto.
M. "Phase I and II of the System" means those components of the System more
particularly described on Exhibit D attached hereto.
N. "Purchase Agreement" means that certain "Purchase Agreement for the Brushy Creek
Regional Wastewater System" dated September 10, 2009 entered into by the Cities and LCRA.
O. "Round Rock" means the City of Round Rock, Texas.
P. "Round Rock Flow Charges" means that portion of the Flow Charges paid by Round
Rock pursuant to the Master Contract to enable Round Rock to serve the District.
Q. "Round Rock Reserved Capacity" means Round Rock's Reserved Capacity in the
System pursuant to the Master Contract, including the portion necessary to enable Round Rock to
serve the District.
R. "System" means the Brushy Creek Regional Wastewater System owned and operated
by the Cities.
Section 1.02. INTERPRETATION. Terms used in this Agreement with initial letters
capitalized and not otherwise defined in this Agreement have the meanings assigned to them in
the Master Contract, but to the extent there is any conflict between the provisions of this
Agreement and the Master Contract, this Agreement shall control. Except where the context
otherwise requires, words imparting the singular number shall include the plural number and vice
versa. Reference to any document means that document as amended or supplemented from time
to time. Reference to any party or governmental regulatory agency means that entity and its
successors and assigns.
ARTICLE II
DESIGN, ACQUISITION,
CONSTRUCTION, OPERATION AND MAINTENANCE
OF SYSTEM
Section 2.01. DESIGN, ACQUISITION AND CONSTRUCTION RESPONSIBILITIES.
Round Rock will use its Reserved Capacity in the System for receiving, transporting, treating and
disposing of Wastewater delivered by the District. Round Rock, in cooperation with the other
Cities, will operate, manage, maintain design, acquire, construct, expand, extend, enlarge,
improve and repair the System as provided in the Master Contract, and as required to meet its
obligations under this Agreement. Round Rock, in cooperation with the other Cities, shall
construct Expansions to the System as requested or needed to meet the service needs at least to
the extent of the District Contractual Flows.
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Section 2.02. OPERATION AND MAINTENANCE RESPONSIBILITIES. Round Rock,
in cooperation with the other Cities, will operate and maintain the System as provided in the
Master Contract and this Agreement. In addition, Round Rock will undertake other management
related actions to provide services to the District.
Section 2.03. OPERATIONS COMMITTEE. The Operations Committee (as defined in
the Master Contract) is composed of representatives appointed by the Cities to represent the
individual and collective interests of the Cities to advise the Cities with respect to the operation of
the System. The District shall be permitted to appoint one non-voting representative to attend the
meetings of the Operations Committee and to listen to and offer input regarding the matters
discussed by the Operations Committee.
ARTICLE III
DISTRICT AND CITY RESPONSIBILITIES
Section 3.01. SERVICE NEEDS. The District agrees to obtain all of its Wastewater
treatment and disposal needs from Round Rock for so long as Round Rock provides service to the
District in accordance with the terms of this Agreement. Round Rock agrees to utilize the System
to provide all Wastewater treatment and disposal needs of the District in a quantity not to exceed
the District Contractual Flows.
Section 3.02 DISTRICT INTERESTS. In connection with the ownership, operation,
management, maintenance, repair, financing and expansion of the System and exercise of the
duties provided in this Agreement, Round Rock will not undertake any actions that would result
in rates that are not just and reasonable, or are unreasonably preferential, prejudicial, or
discriminatory.
ARTICLE IV
RESERVED CAPACITY AND DISCHARGE OF WASTEWATER
Section 4.01. DISCHARGE QUANTITIES. The District shall have the right to discharge
Wastewater into the Point(s) of Entry for the System to the extent described in Exhibit B. It shall
be the sole responsibility of the District to convey its Wastewater to the designated Point(s) of
Entry.
Section 4.02. RATE AND QUANTITY AT POINT(S) OF ENTRY. The rate and
quantity of Wastewater discharged into the System at the designated Point(s) of Entry by the
District shall be determined by "winter averaging", which for purposes of this Agreement and the
Master Contract shall be calculated by in accordance with the methodology developer by K.
Friese & Associates, attached hereto as Exhibit F.. Such methodology may not be preferential to
any individual City or to the Cities, and may not be discriminatory relative to the flows of the
District. The same methodology shall be utilized for calculating the District's Wastewater flows
as that utilized for calculation the Wastewater Flows of the Cities. The District shall not
discharge Wastewater into the System at such Point(s) of Entry at a rate exceeding the District
Contractual Flows.
Section 4.03. DISCHARGE QUALITY. The District shall discharge Wastewater into the
System meeting the requirements of quality as set forth in this Article and not containing wastes
identified in the List of Inadmissible Wastes attached as Exhibit G of this Agreement.
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(a) General Requirements. In order to properly treat and dispose of the District's
Wastewater, to protect the public health, and to permit cooperation with other agencies
which have requirements for the protection of the physical, chemical, and bacteriological
quality of public water and watercourses, the District agrees to prohibit discharges into its
own collection system at unauthorized points of entry or at rates of flow or of quality not
herein specified as admissible.
(b) Admissible Wastes. Discharges into the System by the District shall consist
only of waste which the System is designed to treat and process:
(1) so that the effluent and sludge from the System meets the legal
standards of the EPA, the Commission or any governmental body having legal
authority to set standards for such effluents;
(2) without causing damage to the System which would result in
increased maintenance costs;
(3) without causing excessive treatment costs; and
(4) which meets the requirements of the EPA Pretreatment Regulations,
40 CFR Part 403, Round Rock's applicable rules and the EPA -approved
pretreatment program for the System.
(c) Inadmissible Wastes. A List of Inadmissible Wastes is attached hereto as
Exhibit G. EPA and the Commission periodically modify standards on prohibited
discharges; therefore, revisions to, additions to or deletions from the items listed in this
Section will become necessary to comply with these latest standards. It is the intention of
this Agreement that prohibited discharge requirements be reviewed periodically by the
Cities and that Exhibit G be revised by the Cities in accordance with the latest standards
of EPA, the Commission or federal or state agency having regulatory authority over the
discharges made to the System. Exhibit G may also be revised on the basis of changes in
the treatment process or the general character of Wastewater received at the treatment
plant from the District or indicated in the monitoring data related to the District's
discharges collected pursuant to the System pretreatment program. Any required
revisions shall be made by the Cities only after notice and opportunity to comment has
been provided to the District and shall become effective upon written notice thereof being
given to the District. The District shall be responsible for integrating such changes into its
local sewer use regulations and notifying all affected users of the change.
Section 4.04. REGULATIONS. Discharges to the System shall be governed by the
requirements set forth in the EPA pretreatment regulations, Commission pretreatment regulations,
the List of Inadmissible Wastes, the System pretreatment program and District's respective sewer
use ordinances or regulations.
Periodically, the Cities will promulgate a new List of Inadmissible Wastes, Exhibit G of
this Agreement, in response to changes in federal or state requirements, changes in the treatment
process, or the general character of the Wastewater received at the treatment works, as described
in Section 4.04(c) above. The List of Inadmissible Wastes will contain pollutant allocations to the
District. The District is responsible for developing specific local limits from the pollutant
allocations and enforcing these limits through the District's regulations and sewer use permits.
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Notwithstanding any provision in this Agreement or Master Agreement to the contrary, the
District is subject to the same quality requirements that apply to the Cities.
Section 4.05. INDUSTRIAL WASTES. The District agrees to implement and enforce the
System pretreatment program for all areas receiving sanitary sewer service from the District. The
District also covenants that it will have in effect and will enforce sewer use regulations in
accordance with EPA and Commission regulations or regulations of other governmental agencies
having lawful jurisdiction to set standards for waste discharges. Furthermore, the District shall, at
any reasonable time upon request by Round Rock, produce pretreatment program records for
review.
The District also agrees that no new Significant Industrial User shall be allowed to
connect to the District's sewer system without prior notification being given by the District to
Round Rock of the intent to connect. The District will provide Round Rock with a copy of the
draft sewer use permit and permit application at the time such notification is given. All
Significant Industrial Users that are customers of the District will also be required to obtain a
sewer use permit.
Section 4.06. SYSTEM LIMITATIONS. Round Rock shall be obligated to receive into
the System at the Point(s) of Entry only Wastewater meeting the quantity limits and quality
requirements of this Article IV. Since the capacity required for the District to discharge
Wastewater up to the District Contractual Flows has previously been constructed and for so long
as the District does not discharge Wastewater into the System in excess of the District
Contractual Flows, the District shall not be responsible for, and shall not be allocated any costs or
expenses associated with, the discharge by any other customer (including the Cities) of
Wastewater in excess of (i) the amount which the System is capable of receiving, treating, and
disposing, or (ii) a discharge made into the System by such other customer or the Cities which
would cause it to be overloaded or be in violation of its permits from the State of Texas and/or the
United States of America.
Section 4.07. TITLE TO AND RESPONSIBILITY FOR TREATMENT AND
DISPOSAL OF WASTEWATER. Title to and responsibility for the reception, transportation,
delivery and disposal of all Wastewater discharged hereunder shall remain with the District to the
Point(s) of Entry, and upon passing through the Point(s) of Entry, title to and responsibility for
the Wastewater shall, except as provided in Section 6.19, pass to Round Rock, and Round Rock
shall be responsible for the proper reception, transportation, treatment and disposal of all such
Wastewater, meeting the applicable quality standards, received by it at the Point(s) of Entry.
Responsibility for proper reception, transportation, treatment and disposal of Wastewater received
by Round Rock at the Point(s) of Entry which does not meet the applicable quality standards shall
remain with the District and any expenses incurred by Round Rock in receiving, transporting,
treating and disposing of such non-compliant Wastewater shall be charged directly to the District
by Round Rock, upon demonstrating that such Wastewater was delivered by the District.
Section 4.08. UNIT OF MEASUREMENT. The unit of measurement for Wastewater
delivered hereunder shall be one thousand (1,000) gallons, U.S. Standard Liquid Measure.
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ARTICLE V
CHARGES
Section 5.01. ESTABLISHING CHARGES.
(a) Initial Proposals. As soon as reasonably possible during the first partial Fiscal
Year and not less than forty-five (45) days before commencement of each Fiscal Year
thereafter while this Agreement is in effect, Round Rock shall furnish to the District
copies of its annual estimates of costs and flows for the System, its annual calculation of
the District Operation and Maintenance Expense and the resulting estimates of District
Capital Charges and District Wastewater Service Charges projected to be incurred by
Round Rock in the next ensuing Fiscal Year. Round Rock shall include such information
as may be reasonably necessary for the District to confirm that the District Capital
Charges and District Wastewater Service Charges are calculated in accordance with the
terms and conditions of this Agreement.
(b) Approval of Charge if No Protest. If no protest or request for a hearing on
such tentative proposed District Capital Charges and District Wastewater Service
Charges is presented within twenty-five (25) days after such fling of the proposed
District Capital Charges and District Wastewater Service Charges and supporting
documentation, the proposed District Capital Charges and District Wastewater Service
Charges, when approved by Round Rock's City Council, shall be deemed to be in effect
for all purposes for the next ensuing Fiscal Year.
(c) Procedures for Protest of Charges. If a protest or request for a hearing is duly
filed, it shall be the duty of Round Rock to fix a date and time for a hearing on the
proposed District Capital and/or District Wastewater Service Charges to be conducted in
a manner to enable interested persons to communicate such information as they shall
desire to present any such views as they shall desire to express to the Round Rock City
Council. The party filing such protest and the District shall be advised in writing of the
time and place of such hearing. After consideration of the information and comments
produced at such hearing which shall be reduced to written findings by Round Rock
within fifteen (15) days of such hearing, the Round Rock City Council may adopt the
proposed District Capital Charges and/or District Wastewater Service Charges or make
such amendments thereof as may seem proper. The written findings shall substantively
address and respond to each issue raised in the protest or request for hearing. The
proposed District Capital Charges and/or District Wastewater Service Charges thus
approved by the City Council of Round Rock shall be deemed to be in effect for the next
ensuing Fiscal Year.
(d) The parties agree that the District Capital Charges and District Wastewater
Service Charges shall be just and reasonable, and shall not be unreasonably preferential,
prejudicial, or discriminatory.
Section 5.02. DISPUTES.
(a) The District shall retain such rights as it may possess under applicable law to
seek administrative or judicial review of Round Rock's charges under this Agreement. If the
District at any time disputes the amount to be paid by it under this Agreement, the District shall
nevertheless promptly make the payment or payments determined by Round Rock and shall
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notify Round Rock in writing of the dispute. If it is subsequently determined by agreement,
administrative agency or court decision, or binding arbitration, that such disputed payments made
by the District should be changed, Round Rock shall promptly revise the charges in such manner
that the District will pay amounts which permit Round Rock to receive the entire amount of the
District Capital Charges and District Wastewater Service Charges permitted hereunder as the
same may be modified by final effective order of an administrative agency or court of appropriate
jurisdiction, or by binding arbitration; provided, however, nothing herein shall ever be construed
to prevent Round Rock from recovering from the District the amount required to meet the District
Capital Charges and District Wastewater Service Charges hereunder. If the District Capital
Charges or District Wastewater Service Charges are redetermined as herein provided, Round
Rock will promptly furnish the District with an updated schedule of monthly payments reflecting
such redetermination.
(b) In lieu of seeking judicial or administrative review, the District may submit any
protest or dispute relating to the budget or the District Capital Charges or District Wastewater
Service Charges to binding arbitration in accordance with Article VII below. Any such election
must be made, and written notice thereof filed with Round Rock, within 30 days after receipt of
the written findings of the Round Rock City Council. In the event the District prevails in any
such appeal proceeding, the charges shall be recalculated within 30 days to reflect the ruling, and
any prior overpayment by the District shall be credited immediately. In the event the charges are
not modified as a result of such ruling, then Round Rock shall be entitled to include its reasonable
costs and expenses incurred in connection with the arbitration proceeding.
Section 5.03. CHANGES FROM EMERGENCIES AND LEGAL ACTION. Round
Rock may adopt amendments to the District Capital Charges or District Wastewater Service
Charges by following a process similar to that provided above for the establishment of such
matters initially if, during a Fiscal Year, the District Capital Charges or District Wastewater
Service Charges are changed due to:
(i) unanticipated emergency capital expenses or Flow Charges are
experienced that are properly allocable to the District under this
Agreement; or
(ii) an adjustment is necessitated by regulatory requirement.
Section 5.04. DISTRICT CAPITAL CHARGES; UNCONDITIONAL PAYMENT
OBLIGATION.
(a) General. On or before the fifteenth day of each month, the District shall pay its
District Capital Charge. During the term of this Agreement, the District Capital Charge for the
District to be paid each month shall be determined by allocating one -twelfth (1/12) of the total
District Capital Charges for the Fiscal Year in the amount set forth in Exhibit A and subsection
(b) below, which the District and Round Rock believe is a reasonable basis upon which to
allocate said costs.
(b) It is hereby agreed that upon the effective date of this Agreement, the District shall be
unconditionally obligated to pay the District Capital Charge and District Wastewater Service
Charge regardless of whether or not the District actually discharges Wastewater hereunder,
whether due to Force Majeure or otherwise. The District agrees that its obligation to pay the
District Capital Charge and District Wastewater Service Charge shall be absolute and
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unconditional, irrespective of any rights of set-off, diminution, abatement, recoupment or
counterclaim the District might otherwise have against Round Rock or any other person, and the
District covenants not to seek and hereby waives, to the extent permitted by applicable law, the
benefits of any rights which it may have at any time to any stay or extension of time for
performance or to terminate, cancel or limit its liability to pay the District Capital Charge. and
District Wastewater Service Charge. Such additional agreement shall in all respects be consistent
with the requirements of this Agreement regarding the payment of the District Capital Charge by
the District. This provision shall not be construed to prevent the District from appealing the
amount of the District Capital Charge in accordance with the dispute provisions of this
Agreement.
(c) The preceding paragraph shall not be construed to release Round Rock from the
performance of any of its undertakings contained in this Agreement or, except to the extent
provided in this section, prevent or restrict the District from asserting any rights which it may
have against Round Rock or any other person under this Agreement or under any provision of law
or prevent or restrict the District, at its own cost and expense, from prosecuting or defending any
action or proceeding against or by third parties or taking any other action to secure or protect its
rights under this Agreement.
(d) The District shall not be allocated any costs of any Expansion or improvement of the
System beyond Phases I and II of the System in determining its District Capital Charges unless all
or a portion of the Expansion is constructed to meet the District's needs or serves to improve the
efficient operation of the System. Except in the event of emergencies, Round Rock agrees to
provide not less than 90 days prior written notice of any such proposed improvement, along with
information regarding the necessity and benefits thereof to the District, the projected costs
thereof, and the allocation of costs associated therewith to the District.
(e) In the event additional capital costs are incurred due to expansion or rehabilitation of
the System on behalf of the District, the City of Round Rock reserves the right to issue additional
debt for such improvements on behalf of the District as provided in Article 2, Section 2.01.
Exhibit A will be amended accordingly. Except in the event of emergencies, Round Rock agrees
to provide not less than 90 days prior written notice of any such proposed rehabilitation, along
with information regarding the necessity thereof, the projected costs thereof, and the allocation of
costs associated therewith to the District.
(f) As consideration for the transfer and conveyance of the District's Surplus
Capacity to Round Rock by the District, Round Rock agrees that it will not seek to recover from
the District, directly or indirectly, any costs of the type identified in Section 1.2(a)(c) and (d) of
the Purchase Agreement.
Section 5.05. DISTRICT WASTEWATER SERVICE CHARGES
(a) During the term of this Agreement, the District each month shall be required to pay a
District Wastewater Service Charge designed to recover that portion of the Round Rock Flow
Charge and the District Operation and Maintenance Expense. The District Wastewater Service
Charge shall be the sum of the following divided by 12 (or in the case of the initial Fiscal Year
the fraction obtained by dividing the number of complete calendar months between the initial date
of service by Round Rock hereunder and September 30 of the Fiscal Year in which service
begins)
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(i) That portion of the Round Rock Flow Charges allocated to the District;
and
(ii) The District Operation and Maintenance Expense; and
(iii) The adjustment for actual Round Rock Flow Charges from prior periods,
if any, as described in Section 5.05(b).
(b) Adjustment for Actual. In the event that the Round Rock Flow Charges are adjusted
in accordance with the Master Contract, Round Rock shall report to the District the difference, if
any, between the amounts collected from the District and the actual Round Rock Flow Charges.
The difference, if any, shall be applied as an adjustment in calculating the District Wastewater
Service Charge pursuant to this section for the Fiscal Year immediately following the Fiscal Year
in which the actual Round Rock Flow Charges are known.
Section 5.06. HOW, WHEN AND WHERE PAYMENTS ARE TO BE MADE. Delivery
to the District of the final budgets for a Fiscal Year, together with the schedule of resulting
District Capital Charges and District Wastewater Service Charges, shall constitute the invoice for
same for the entire Fiscal Year. Payment of all District Capital Charges and District Wastewater
Service Charges required to be paid by the District under the provisions of this Agreement shall
be made to Round Rock. All charges payable for any calendar month shall be due and payable in
Williamson County, Texas, on or before the first day of such month. Past due payments shall bear
interest from the date due until paid at the lower of ten percent (10%) per annum or the highest
lawful rate in the State of Texas. Should the District desire, Round Rock agrees to cooperate in
good faith to permit the District to prepay any District Capital Charges owed or anticipated to be
owed under this Agreement.
Section 5.07. DEFAULT.
(a) Monetary Defaults by District. In the event the District defaults in the payment of the
District Capital Charge or District Wastewater Service Charge required hereunder, Round Rock
shall immediately give notice of such default to the District; provided, however, that nothing in
this section shall prevent the District from paying under protest any amount alleged as owed to
Round Rock or prevent Round Rock from accepting any payment even if less than the amount
alleged by Round Rock as owed by the District. Payment or receipt of any such disputed amount
shall not be construed as a waiver of any right of the party making or receiving such disputed
amount to contest such matter and to demand payment or receipt of a different amount.
Thereafter, the District shall take all appropriate steps to correct such default and shall correct
such default within ten (10) days after receipt of such notice. Any past due amount shall be paid,
together with interest at the rate of ten percent (10%) per annum or the maximum legal rate of
interest then in effect, whichever is greater.
(b) Other Defaults by District or Round Rock. In the event that the District or Round
Rock defaults in the performance of any of their respective obligations under this Agreement,
other than the obligation to make payments of the District Capital Charge or District Wastewater
Service Charge, the non -defaulting party, after giving reasonable notice of the default and
opportunity to cure same, may exercise any remedy at law or in equity or as provided below in
Article VII.
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ARTICLE VI
GENERAL PROVISIONS
Section 6.01. PAYMENTS TO CONSTITUTE OPERATING EXPENSES OF
DISTRICT. The District represents and covenants that the services to be obtained pursuant to this
Agreement are essential and necessary to the operation by the District of its own wastewater
facilities and the provision of sanitary sewer services to its constituents, and that all payments to
be made hereunder by it will constitute essential and necessary operating expenses of the
District's waterworks and sanitary sewer systems, and the provisions of all resolutions, as
appropriate, authorizing the issuance of all bonds of the District which are payable from revenues
of the District's waterworks and sanitary sewer systems payable from the revenues of said system
and from the proceeds of its maintenance tax. The parties acknowledge that Round Rock intends,
in cooperation with the other Cities, to own and operate the System as capital improvements on
behalf of the District within the meaning of Section 395.002(1), Texas Local Government Code.
The parties understand and agree that the decision as to whether the capital improvements
constructed or acquired by Round Rock on behalf of the District are used to serve new
development (within the meaning of Section 395.001(6), Texas Local Government Code) and the
decision as to whether to impose any impact fees (within the meaning of Section 395.001(4),
Texas Local Government Code) is exclusively that of the District. Round Rock agrees, upon
receiving a written request from the District, to provide information and other assistance
regarding Round Rock's calculation of the District Capital Charges to assist the District in its
efforts to implement or defend any capital recovery fee or impact fee of the District related to the
System. Expenses incurred by Round Rock in providing such information to the District shall be
a District Operation and Maintenance Expense directly attributable to the District.
Section 6.02. DISTRICT'S RATES, FEES AND CHARGES. Round Rock acknowledges
that the District has the right under applicable law to assess, charge and collect such District
maintenance taxes, impact fees, capital recovery fees, connection fees, meter fees, or other
service fees, rates, taxes or other charges as it will deem appropriate. Round Rock will not
construe this Agreement to require (except as provided otherwise in this Section), limit or restrict
the governmental power of the District to implement the same. The District will be solely
responsible for the proper exercise of its governmental power to assess and collect such fees and
charges and for ensuring that all fees, taxes, rates and charges the District elects to charge are in
compliance with applicable law. The District agrees to establish and collect such taxes, rates and
charges for its waterworks and sanitary sewer services to be supplied by its system as will make
possible the prompt payment of all expenses of operating and maintaining its system including
the payments committed hereunder, and the prompt payment of the principal of and interest on its
obligations, if any, payable from the revenues of its waterworks and sanitary sewer systems.
Section 6.03. USE OF PUBLIC PROPERTY. By these presents, the District, to the extent
capable under existing law, authorizes use by Round Rock of general utility or sewer easements
and rights-of-way of the District for construction, operation and maintenance of the System, so
long as such use is in compliance with the terms of any easement or right-of-way utilized by
Round Rock and does not interfere with any lawful use by the District and subject to all of the
District's rules and regulations respecting the manner of such use and restoration of lands,
pavement or improvements resulting from exercise of the rights provided in this section,
including the cost of relocation of any facilities located within any such easement or right-of-way
as an expense of the System. Round Rock will cooperate with the District in the timing, planning
and installation of the System to be constructed and installed hereunder.
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Section 6.04. FORCE MAJEURE. In case by reason of "Force Majeure" any party hereto
shall be rendered unable wholly or in part to carry out its obligations under this Agreement, then
if such party shall give notice and full particulars of such "Force Majeure" in writing to the other
parties within a reasonable time after occurrence of the event or cause relied on, the obligation of
the party giving such notice, so far as it is affected by such Force Majeure, with the exception of
the obligation to pay amounts owed hereunder, shall be suspended during the continuance of the
inability then 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 acts of God, strikes, lockouts or other industrial disturbances, acts of public
enemy, orders of any kind of the United States or the State of Texas or any civil or military
authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes,
storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances,
explosions, breakage or accidents to machinery, pipelines or canals, partial or entire failure of
water supply and inability on the part of the District to provide water necessary for operation of
its water and wastewater system hereunder or of Round Rock to receive Wastewater on account
of any other causes not reasonably within the control of the party claiming such inability. It is
understood and agreed that the settlement of strikes and lockouts shall be entirely within the
discretion of the party having the difficulty and that the above requirement that any Force
Majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes
and lockouts by acceding to the demands of the opposing party or parties when such settlement is
unfavorable in the judgment of the party having the difficulty.
Section 6.05. GOVERNMENTAL REGULATION. This Agreement shall be subject to
all valid rules, regulations and laws applicable hereto passed or promulgated by the United States
of America, the State of Texas or any governmental body or agency having lawful jurisdiction or
any authorized representative or agency of any of them. In each instance herein where reference
is made to a federal or state regulation, it is the intention of the parties that at any given time the
then current edition of any such federal or State regulation shall apply. Round Rock and the
District agree that their obligations under this Agreement shall include compliance with the
requirements made under said laws, and any rules and regulations issued pursuant thereto. New
standards shall be adopted by the District, and Round Rock which are in compliance with
applicable State and federal laws and any valid rules and regulations issued pursuant thereto.
Section 6.06. DISTRICT COOPERATION TO ASSURE REGULATORY
COMPLIANCE. Since Round Rock and the other Cities must comply with all federal, state and
local requirements to obtain permits, grants and assistance for system construction, studies, etc.,
the District will cooperate with the Cities in good faith at all times to assure compliance with any
such governmental requirements where noncompliance or non-cooperation by the District may
subject Round Rock to penalties, loss of grants or other funds, or other adverse regulatory action.
In making the determinations called for herein, Round Rock covenants that such determinations
will be made only after detailed studies of statistical data available as to the need and feasibility
have been made and after consulting with engineers and financial advisors. The District will be
kept advised at all times of planning and implementing Required Improvements. In that regard,
the District agrees to adopt and enforce, and to provide in its wholesale contracts with its water
customers in the future that they shall adopt and enforce, an appropriate water conservation
and/or drought management plan as required by the Texas Water Development Board.
Section 6.07. CONTRACTS WITH OTHERS IN RELATION TO SYSTEM.
(a) Subject to obtaining the consent of Round Rock as set forth in Section 6.08, the
District shall have the right to enter into contracts with other persons natural or corporate, private
11
or public, to receive Wastewater from such persons. The District covenants that it will provide
Round Rock with copies of all such written contracts and will, if requested by Round Rock,
furnish Round Rock with a list of all customers other than retail, residential customers. Initially,
within thirty (30) days after execution of this Agreement, and thereafter for each calendar year the
tenure hereof, the District will send to Round Rock by January 15 of each year an annual report
containing the following data about the District's customers that the System ultimately serves:
(1) actual number of connections as of the end of the calendar year;
(2) number of new wastewater connections made in the previous calendar year;
(3) classification, by number and percentage, of accounts according to the following:
(i) residential;
(ii) multi -family;
(iii) business/commercial; and
(iv) other; and
(4) if business or commercial connections, a copy of any District industrial waste
discharge permit issued to such premises.
(b) Round Rock shall have the right to enter into or amend agreements with other
persons, including, without limitation, entering into agreements with other customers or
amendments of the Master Contract, so long as such agreements or amendments do not prevent
Round Rock from meeting its obligations to provide service to the District from the System in
accordance with this Agreement and do not result in alienation of Reserved Capacity necessary to
meet the District's needs. Under no circumstances may Round Rock enter into such agreements
that would require the use of Wastewater facilities owned or operated by the District without the
District's prior written consent.
(c) The District hereby releases any right or claim to the District Surplus Capacity, and
further agrees as follows with respect thereto: (i) as of the Effective Date, Round Rock shall be
the owner of the District Surplus Capacity; and (ii) Round Rock shall be entitled to all
consideration that may be received from Leander (or any third party) in connection with the
District Surplus Capacity, and the District shall have no right to any portion of such
consideration. Round Rock agrees that from and after the Effective Date, the District Capital
Charges shall not include any costs associated with the District Surplus Capacity, and Round
Rock shall not seek to recover, either directly or indirectly, any costs associated with the District
Surplus Capacity from the District.
Section 6.08. NON -INFRINGEMENT. Notwithstanding anything in Section 6.07, the
District agrees that it will not provide or enter into an agreement to provide Wastewater service
directly or indirectly outside of its service area unless Round Rock and the City in whose service
area the service is to be provided consents. For purposes of this Section, the District's service area
shall mean the area presently served by the District as shown in Exhibit H.
Section 6.09. ANNUAL REPORT OF SYSTEM AND AUDITS. Round Rock shall cause
to be prepared an annual report of the System each year. Such report shall contain such matters
and information as may be considered necessary and useful by Round Rock. A copy of the annual
report and Round Rock's annual audit, accompanying management letters and a list of costs
assigned to the District shall be promptly provided to the District.
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Section 6.10. NO ADDITIONAL WAIVER IMPLIED. No waiver or waivers of any
breach or default (or any breaches or defaults) by any party hereto of any term, covenant,
conditions, or liability hereunder, or of performance by the other parties of any duty or obligation
hereunder, shall be deemed or construed to be a waiver of subsequent breaches or defaults of any
kind, under any circumstances.
Section 6.11. ADDRESSES AND NOTICE. Unless otherwise provided, in this
Agreement, any notice, communication, request, reply, or advice (herein severally and
collectively, for convenience, called "Notice") herein provided or permitted to be given, made or
accepted by any party to the others must be in writing and may be given or be served by
depositing the same in the United States mail postpaid and registered or certified and addressed to
the party to be notified, with return receipt requested, or by delivering the same to an officer of
such party, or by telecopier, when appropriate, addressed to the party to be notified. Notice
deposited in the mail in the manner hereinabove described shall be conclusively deemed to be
effective, unless otherwise stated in this Agreement, from and after the expiration of four (4) days
after it is so deposited. Notice given in any other manner shall be effective only if and when
received by the party to be notified. For the purpose of notice, the addresses of the parties shall,
until changed as hereinafter provided, be as follows:
If to Round Rock, to:
City Manager
City of Round Rock
221 E. Main St.
Round Rock, Texas 78664
with a copy to:
Stephan L. Sheets
Sheets & Crossfield
309 E. Main St.
Round Rock, Texas 78664
If to the District, to:
General Manager
Fern Bluff Municipal Utility District
Round Rock, Texas 78681
Fax No. (512) -
with a copy to:
Austin, Texas
Fax (512) -
The parties shall have the right from time to time and at any time to change their
respective addresses and each shall have the right to specify as its address any other address by at
least fifteen (15) days written notice to the other parties.
13
Section 6.12. MODIFICATION. This Agreement may not be changed or modified
without the mutual consent of the governing bodies of each of the parties hereto, which consent
shall not be unreasonably withheld or delayed.
Section 6.13. ASSIGNABILITY; SUCCESSORS IN INTEREST. This Agreement shall
not be assignable by any party without the prior written consent of the other parties, which
consent shall not be unreasonably withheld or delayed. Upon assignment of this Agreement by
the District, or upon dissolution of the District by operation of law as a result of annexation of the
entire District by a municipality, the rights and obligations of the District under this Agreement
shall be binding upon, and inure to the benefit of, the District's assignee or successor in interest.
Section 6.14. SEVERABILITY. The provisions of this Agreement are severable, and if
any provision or part of this Agreement or the application thereof to any person or circumstance
shall ever be held by any of competent jurisdiction to be invalid or unconstitutional for any
reason, the remainder of this Agreement and the application of such provision or part of this
Agreement to other persons or circumstances shall not be affected thereby.
Section 6.15. MERGER. Other than the other contracts mentioned herein, this Agreement
constitutes the entire agreement between the parties relative to the subject matter thereof. Except
as noted in the previous sentence, there have been and are no agreements, covenants,
representations or warranties between the parties other than those expressly stated herein or
expressly provided for herein.
Section 6.16. VENUE. Venue for any action arising hereunder will be in Williamson
County, Texas.
Section 6.17. NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement,
express or implied, is intended to confer upon any person or entity, other than the parties hereto,
any rights, benefits, or remedies under or by reason of this Agreement.
Section 6.18 REUSE OF TREATED EFFLUENT FROM SYSTEM.
(a) Nothing contained herein shall be construed as the District relinquishing
its reuse rights, if any, to Wastewater Effluent attributable to the Wastewater flows of the District
that are delivered to the System. City agrees that it will not in any way seek to reuse the
Wastewater Effluent attributable to the District's flows without the express written consent of
District.
ARTICLE VII
NEGOTIATION AND ARBITRATION OF DISPUTES
Section 7.01. AGREEMENT REGARDING REMEDIES. The parties agree that their
respective obligations under this Agreement are unique and recognize that Round Rock may be
issuing its bonds to acquire, construct, expand, improve or replace the System and may pledge the
revenues from this Agreement to secure payment of principal of, premium, if any, and interest on
the bonds. The failure by any party to perform its obligations under this Agreement would not be
capable of being appropriately remedied by award of damages to any other affected party to this
Agreement and in any event, such damages would be difficult, if not impossible, to determine
because of the unique nature of the parties' obligations to each other hereunder. Further, the
parties agree that the remedy of termination of this Agreement by any party is inappropriate and
14
not in the public interest. Therefore, the parties agree that they shall be entitled, and limited, to
the remedies of specific performance, mandamus and injunction in the event of any breach of any
obligation by any party under this Agreement. The parties hereby waive any requirement that
they be required to provide any bond or other surety in order to obtain any of the agreed upon
remedies. The parties also agree that attorney's fees and court costs incurred by any party
prevailing in any legal action to enforce this Agreement or collect or defend any amounts owed or
claimed as owed shall be paid by the non -prevailing party.
Section 7.02. AGREEMENT TO NEGOTIATE FIRST TO RESOLVE ISSUES. The
parties agree to attempt first to resolve disputes concerning this Agreement amicably by promptly
entering into negotiations in good faith. The parties agree that they will not refer any dispute to
another dispute resolution procedure including arbitration or litigation until they have first made
reasonable and good faith efforts to settle their differences by joint negotiations conducted in a
timely manner.
Section 7.03. ELECTION OF REMEDIES. If any dispute cannot be resolved through
good faith negotiation, then the parties may resolve the dispute by binding arbitration as provided
herein. An election to arbitrate any dispute by either party shall be binding, and shall preclude
the same dispute from being resolved by judicial or administrative proceeding (except to the
extent required to enforce the arbitrator's decision).
Section 7.04. PRESENTATION OF WRITTEN CLAIM REGARDING DISPUTES
NOT RESOLVED BY NEGOTIATION. In the event that a dispute is not resolved as a result of
such negotiations, either party may at any time give formal written notice to the other of a
"claim." A "claim" as used herein means a demand or assertion by one of the parties (the
"claimant") seeking, as a matter of right, adjustment or interpretation of contract terms, the
payment of money, an extension of time for performance or other relief with respect to the terms
of this Agreement or any other dispute or matter in question among the parties arising out of or
related to this Agreement. By way of example and without limitation, a claim may relate to the
calculation of charges, the allocation of costs, the reasonableness of costs, compliance with this
Agreement, and calculation or allocation of flows within the System. Such notice shall be in
writing, and shall specify whether the forum for resolution of the dispute shall be judicial,
administrative, or binding arbitration. If a party elects to resolve a claim by binding arbitration,
the dispute resolution procedure provided for below shall immediately enter into effect.
Section 7.05. PERFORMANCE DURING ARBITRATION. The claimant shall continue
with performance under this Agreement pending arbitration of the dispute.
Section 7.06. APPOINTMENT OF ARBITRATOR. Promptly following the making of a
written claim by any party, the parties will consult with one another to agree on the appointment
of an arbitrator acceptable to all parties. The arbitrator shall have experience in matters of the
kind giving rise to the claim. If within five (5) business days the parties are unable to agree on the
appointment of an arbitrator, then any party may request the appointment of an arbitrator by the
Center for Public Policy Dispute Resolution at the University of Texas at Austin School of Law.
The parties shall endeavor to secure such appointment from the Center for Public Policy Dispute
Resolution within ten (10) business days after the request for same is made. The parties agree to
utilize the arbitrator appointed by the Center unless they ultimately reach agreement on an
alternative selection and give notice to the Center that another selection has been made by
agreement.
15
Section 7.07. RULES FOR BINDING ARBITRATION. The parties agree to the
following stipulations concerning the conduct of the arbitration:
interest.
(a) The arbitrator shall be impartial among the parties and shall have no conflict of
(b) The arbitrator shall not have any past, present or anticipated financial interest in
the Agreement or the System except for the payment for services as arbitrator nor shall the
arbitrator have been previously employed or acted as a consultant, attorney, employee, engineer,
architect, contractor or subcontractor of any party nor have any present or anticipated future
engagement of kind described. Before the engagement of the arbitrator is finalized, the arbitrator
shall provide to the parties a disclosure statement containing a resume of experience, a
description of past, present or anticipated future relationships to the System and the parties, their
engineers, contractors, subcontractors, attorneys, architects, or consultants.
(c) The arbitration shall be held at a time and location mutually agreeable to the
parties and the arbitrator provided, however, that the arbitration shall commence no later than
fifteen (15) business days following the confirmation of appointment.
(d) At least five (5) business days prior to the arbitration, the claimant shall submit to
the parties and the arbitrator a statement of the claimant's position, the issues that need to be
resolved and a summary of the arguments supporting the claimant's position. At least two (2)
business days prior to the arbitration, the responding parties shall submit their written response to
the claimant's statement and provide a summary of their arguments in response.
(e) If the parties agree that independent expert or technical advice would be helpful
in facilitating a negotiated resolution of the dispute, the arbitrator may make arrangements to
obtain such advice, and may, with the agreement of the parties, make arrangements for an
independent expert to render a non-binding advisory opinion with respect to any technical matters
in dispute after hearing the contentions of the parties with respect thereto. The expenses of
obtaining such independent advice or advisory opinion shall be borne equally by the parties.
(0 No party shall engage in any private interview, discussion or argument with the
arbitrator concerning the subject matter of the arbitration.
(g) The fees of the arbitrator and any other costs of administering the arbitration
shall be borne equally by the parties unless otherwise agreed among them in writing.
(h) The arbitrator may promote settlement in any manner the arbitrator believes
appropriate at one or several arbitration sessions as agreed to by the parties. The arbitration shall
continue only so long as desired by the parties and with the consent of all of them.
(i) Arbitration sessions shall be private unless otherwise required by law. Persons
other than the representatives of the parties may attend arbitration sessions only with the
permission of all parties and the consent of the arbitrator.
(j) All communications made in the course of the arbitration process including any
advice or advisory opinions rendered shall be confidential in accordance with V.T.C.A. Civil
Practice and Remedies Code, Section 154.073.
(k) The arbitrator's decision shall be fmal and binding upon the parties.
16
Section 7.08. EXCEPTION. Notwithstanding the foregoing provisions of Sections 7.02-
7.07, the parties agree that those provisions shall not be applicable in emergency situations.
Section 7.09 WAIVER OF SOVEREIGN IMMUNITY. The Parties acknowledge and
agree that this Agreement is a written contract stating the essential terms of an agreement for
providing goods and services to the District, and that the City intends to waive its sovereign
immunity to suit for the sole purpose of adjudicating a claim for breach of this Agreement,
subject to the terms and conditions of Subchapter I of Chapter 271 of the Texas Local
Government Code or any other applicable statute.
Section 7.10 ATTORNEYS' FEES. Pursuant to § 271.159 of the Texas Local
Government Code, the prevailing party in a claim arising out of or to enforce this Agreement
shall be entitled to recover from the other party its reasonable and necessary attorneys' fees. This
provision specifically applies to but is not limited to judgments awarding damages, court orders
compelling performance, and arbitrator decisions pursuant to Section 7.07 herein.
Section 7.11 DELEGATION OF AUTHORITY. The Parties agree that the dispute
resolution procedures set forth herein are not intended to unlawfully delegate the ratemaking or
other legislative authority of any party to this Agreement. Instead, the purpose of the dispute
resolution provisions is to provide each party an opportunity to appeal to an independent third
party for a determination as to whether the non -appealing party has acted in accordance with the
terms and conditions of this Agreement. In the event of binding arbitration, it is the parties'
mutual intent that such arbitration determine whether the parties have acted in accordance with
the terms of this Agreement, and not to delegate the performance of any duties hereunder to such
arbitrator. Each party agrees to take such actions as soon as practicable to comply with the
arbitrator's decision.
ARTICLE VIII
EFFECTIVE DATE AND TERM OF AGREEMENT
Section 8.01. EFFECTIVE DATE. This Agreement shall become effective upon
execution by Round Rock and the District. This Agreement shall constitute the sole and only
contract between the District and Round Rock regarding Wastewater disposal services and the
District hereby recognizes and affirms its responsibility to make the payments required
hereunder.
Section 8.02. TERM OF AGREEMENT. This Agreement shall continue in force and
effect from the effective date hereof until December 31, 2050.
17
(SIGNATURE PAGES)
18
EXHIBIT A
Round Rock Debt to serve the District
19
EXIIIBIT B
District Contractual Flows
20
EXHIBIT C
District Surplus Capacity
21
EXHIBIT D
Phases I and II of the System
22
EXHIBIT E
Point(s) of Entry into the System
23
EXHIBIT F
Winter Averaging Methodology
24
EXHIBIT G
List of Inadmissible Wastes
25
EXHIBIT II
District Service Area
26
DATE: October 15, 2009
SUBJECT: City Council Meeting — October 22, 2009
ITEM: 11E5. Consider a resolution authorizing the Mayor to execute a Wastewater Service
Agreement with Fern Bluff Municipal Utility District.
Department:
Staff Person:
Justification:
Water/Wastewater Utilities
Michael Thane, P.E., Director of Utilities
The Cities of Austin, Cedar Park, and Round Rock are in the process of purchasing the Brushy Creek
Regional Wastewater System (BCRWWS) from the Lower Colorado River Authority (LCRA). In addition to
the three Cities owning capacity in the system, there are also two Municipal Utility Districts (MUD),
Brushy Creek MUD and Fern Bluff MUD, who own capacity in the system and are currently sub -regional
customers to the LCRA. Upon sale of the system, the LCRA will no longer having an interest in the
BCRWWS; therefore, this service agreement outlines the terms in which the two MUDs will become sub -
regional customers of the City of Round Rock. Round Rock agrees to utilize the BCRWWS to provide
wastewater treatment and disposal needs of the MUDs in a quantity not to exceed their Contractual
Flows.
Funding:
Cost: N/A
Source of funds: N/A
Outside Resources: Lower Colorado River Authority
Background Information:
The Cities, LCRA, and Brazos River Authority (BRA) entered into a Wastewater Disposal Contract in
October 2000 for the design, acquisition, financing, and construction of wastewater interceptors and
treatment facilities, and for BRA to conduct day-to-day operations of the BCRWWS. Over the past two
years, the Cities have been in negotiations with the LCRA on the transfer of the BCRWWS back to the
Cities. On June 3, 2009, the LCRA and the Cities of Round Rock and Cedar Park entered into a
Memorandum of Understanding (MOU) that outlined the steps in order for the Cities to purchase the
BCRWWS from the LCRA. Under the MOU, the parties entered into a Purchase Agreement on
September 10, 2009. The MOU states that the closing of the purchase of the System by the Cities shall
occur on or before December 8, 2009. At closing, the LCRA shall transfer the BCRWWS to the Cities and
the Cities agree to fully release and discharge LCRA from any further obligations or liability related to the
BCRWWS.
Public Comment: N/A
EXECUTED
DOCUMENT
FOLLOWS
Fern Bluff MUD
Execution Copy
WASTEWATER SERVICE AGREEMENT
BETWEEN THE
CITY OF ROUND ROCK
AND
FERN BLUFF MUNICIPAL UTILITY DISTRICT
This Wastewater Service Agreement ("Agreement") is entered into by and between the City of
Round Rock ("Round Rock") and Fern Bluff Municipal Utility District (the "District").
RECITALS
WHEREAS, Round Rock, the City of Austin, and the City of Cedar Park (collectively,
the "Cities") have entered into a contract with the Lower Colorado River Authority ("LCRA") to
purchase from LCRA certain wastewater collection, treatment and disposal facilities known as
the Brushy Creek Regional Wastewater System (the "System");
WHEREAS, the District is currently a party to that certain "Subregional Wastewater
Disposal Contract" dated October 1, 2000 with LCRA and the Brazos River Authority ("BRA")
providing for the collection, treatment and disposal of the District's wastewater flows by LCRA
utilizing the System;
WHEREAS, in connection with the pending acquisition of the System by the Cities,
Round Rock proposes to provide wholesale wastewater treatment and disposal services to the
District; and
WHEREAS, the District and Round Rock desire to enter into this Agreement in order to
set forth the terms and conditions pursuant to which Round Rock shall provide wastewater
collection, treatment and disposal services to the District.
NOW, THEREFORE, for and in consideration of the foregoing premises and the mutual
promises and agreements of the parties contained in this Agreement, the sufficiency of which is
hereby acknowledged, Round Rock and the District agree as follows:
AGREEMENT
I.
DEFINITIONS
Certain of the capitalized terms and expressions used in this Agreement, unless the
context clearly shows otherwise, shall have the following meanings:
1.01 "Agreement" means this Wholesale Wastewater Service Agreement.
1.02 "Annual Operation and Maintenance Expense Requirement" means the annual
amount budgeted for all Operation and Maintenance Expenses associated with the System during
any fiscal year.
1.03 "Cities" mean the cities of Austin, Cedar Park, and Round Rock. The term
"Cities" shall also be deemed to include any other municipality or entity that acquires an
ownership interest in the System.
Quality.
1.04 "District" means the Fern Bluff Municipal Utility District.
1.05 "Commission" or "TCEQ" means the Texas Commission on Environmental
1.06 "District Administrative Charge" means $500.00 per month, to be paid by the
District to Round Rock as compensation for all administrative and overhead costs and expenses
of Round Rock for providing service to the District. This sum will increase on each anniversary
date of this Agreement by three percent (3%), compounded annually.
1.07 "District Capital Charge" means the portion of Round Rock's debt necessary to
serve the District as established per Exhibit A. (The Parties agree that amounts shown on Exhibit
A are estimates at the time of the execution of this Agreement. Therefore, Exhibit A will be
amended when, in accordance with the terms of the Purchase Agreement, LCRA provides Round
Rock with the final amount of LCRA Debt outstanding on December 4, 2009. Exhibit A will also
be amended to reflect the True Interest Cost (TIC) when the bonds issued by Round Rock to
purchase the System from LCRA are priced and issued; provided, however, that the TIC allocated
to the District for purposes of Exhibit A shall not exceed 4.75 percent.) Should the City refinance
its debt and achieve a net present value savings to the District after consideration of all costs and
expenses of issuance, Exhibit A shall be amended to reflect such savings to the District. Round
Rock may refinance its debt without any net present value savings to the District, in which event
the District Capital Charge shall remain unchanged.
1.08 "District Contractual Flows" means the maximum amount of Wastewater, based
upon a 30 -day average flow, that is permitted to be discharged by the District into the Point(s) of
Entry for the System, as set forth in Exhibit B.
1.09 "District Flow Charge" means the amount paid each month by the District for
those Operation and Maintenance Expenses of the System for which the District is responsible
under this Agreement, and which are not paid through the District Capital Charge, the Required
Improvements Charge, or the District Administrative Charge.
1.10 "District Surplus Capacity" means that portion of the surplus capacity in the
System previously financed by the District and constructed for the potential participation in the
System by the City of Leander or another third party, which is identified in Exhibit I attached
hereto.
1.11 "EPA" means the Environmental Protection Agency.
1.12 "Expansion" means any improvement project that increases or enlarges the
System or a System Component to provide additional capacity or service capability.
1.13 "Brushy Creek MUD" means Brushy Creek Municipal Utility District.
1.14 "Fiscal Year" means the twelve (12) month period beginning October 1 of each
year.
2
1.16 "Master Contract" means any one or more agreements entered into by the Cities
that relates to, or provides for, the ownership, operation, management, repair, replacement and
financing of the System.
1.17 "Operation and Maintenance Expense" means all direct and indirect costs of
operation, maintenance, repair, rehabilitation, replacement and decommissioning of the System,
save and except: (i) depreciation costs, (ii) any of the costs or expenses identified in Section
6.02; and (iii) costs or expenses that are paid through the District Capital Charge.
1.18 "Party" or "Parties" means the District and Round Rock.
1.19 "Phase I and Il of the System" means those components of the System more
particularly described on Exhibit G attached hereto.
1.20 "Point of Delivery" means each point of delivery at which Round Rock shall
receive Wastewater from the District as more particularly described in Exhibit C.
1.21 "Purchase Agreement" means that certain "Purchase Agreement for the Brushy
Creek Regional Wastewater System" entered into by LCRA and the Cities dated September 10,
2009, a copy of which is attached hereto as Exhibit I.
1.22 "Required Improvement" means each Expansion, repair, improvement,
replacement, or modification of the System or a System Component as may be necessary for
compliance with applicable regulatory requirements, or as may be necessary for the proper and
most efficient operation of the System or System Component that is not financed through the
District Capital Charge.
1.23 "Required Improvements Budget" means that portion of the Annual Operation
and Maintenance Expense Requirement to be funded through the Required Improvements
Charge.
1.24 "Required Improvements Charge" shall mean the charge that may be levied by
Round Rock for payment of the costs of Required Improvements, as more particularly described
in Section 6.09.
1.25 "Reserved Capacity" means the capacities of each of System Components
allocated to, and reserved for, the District, as identified on Exhibit E attached hereto. In the event
of an Expansion, Round Rock shall revise Exhibit E to reflect the District's revised capacity in
each of the System Components that is the subject of the Expansion.
1.26 "Round Rock" means the City of Round Rock, Texas.
1.27 "Shall", when used in this Agreement, shall be construed as mandatory.
1.28 "Significant Industrial User" has the meaning set forth at 40 CFR §403.3(t).
1.29 "Subregional Agreement" means that certain "Subregional Wastewater Disposal
Contract" dated October 1, 2000 between the District, LCRA and BRA providing for the
collection, treatment and disposal of the District's wastewater flows by LCRA utilizing the
System.
3
1.30 "System" means the Brushy Creek Regional Wastewater System.
1.31 "System Component" means a specified facility comprising part of the System
and listed as a System Component in Exhibit G attached hereto.
1.32 "Wastewater" means liquid and water -carried waste discharged from sanitary
conveniences of dwellings, business buildings, institutions and the like including garbage which
has been shredded to such degree that all particles will be carried freely under flow conditions
normally prevailing in public sewers, within no particle greater than one-half inch in any
dimension and the liquid wastes from industrial processes, and includes any infiltration water that
has migrated from the ground into the System.
II.
STATEMENT OF INTENT
2.01 GENERAL. The purpose of this Agreement is to provide for the collection,
transportation, treatment and disposal of all Wastewater generated within the District by Round
Rock.
2.02 CONDITION PRECEDENT. A condition precedent to the performance of the
Parties' obligations under this Agreement is the termination of the Subregional Agreement.
III.
DESIGN, ACQUISITION
CONSTRUCTION, OPERATION AND MAINTENANCE
OF SYSTEM
3.01 WHOLESALE WASTEWATER SERVICE. Round Rock will receive,
transport, treat, and dispose of all Wastewater delivered by the District. Round Rock, in
cooperation with the other Cities, will operate, manage, maintain design, acquire, construct,
expand, extend, enlarge, improve and repair the System as required to meet its obligations under
this Agreement.
3.02 EXPANSIONS AND IMPROVEMENTS TO SYSTEM. The Parties agree
that no Expansions to the System are required to meet the service needs of the District to the
extent of the District Contractual Flows. Round Rock, in cooperation with the other Cities, shall
construct Expansions to the System as requested by the District to meet the service needs of the
District in excess of the District Contractual Flows. Round Rock may also, without the consent
of the District, construct Required Improvements to the System or a System Component in
accordance with the terms and conditions of this Agreement.
3.03 OPERATIONS COMMITTEE. The District may appoint one non-voting
representative to the "Operations Committee," or any other committee formed by the Cities
related to the ownership, operation, maintenance, expansion of the System, and such
representative may attend all such meetings and provide input regarding the matters discussed.
Round Rock agrees to provide reasonable prior notice to the District of all meetings of the
committee(s). Round Rock shall endeavor in good faith to provide such notice by electronic mail
or otherwise in writing, but shall be under not contractual obligation to do so.
IV.
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DISTRICT AND CITY RESPONSIBILITIES
4.01 SOLE SOURCE REQUIREMENT. The District agrees to obtain all of its
Wastewater treatment and disposal needs from Round Rock for so long as Round Rock provides
service to the District in accordance with the terms of this Agreement.
4.02 DISTRICT INTERESTS. In connection with the ownership, operation,
management, maintenance, repair, financing and expansion of the System and exercise of the
duties and rights provided in this Agreement, Round Rock will not undertake or forego any
actions, formally or informally (including its right to vote or make decisions relating to the
System), that would be preferential to Round Rock and its retail customers or the Cities relative
to the interests of the District and its retail customers. The foregoing provision shall not be
construed to prevent the costs of an Expansion or Required Improvement from being paid only by
those customers or entities with capacity in the System Components that are subject to the
Expansion or Required Improvement. Neither this Agreement in general, nor the foregoing
provision in particular, shall ever be construed to create a fiduciary relationship between Round
Rock and the District, nor to inhibit in any way the complete flexibility and discretion of Round
Rock to set its rates and fees to its retail customers at it deems best.
V.
RESERVED CAPACITY AND DISCHARGE OF WASTEWATER
5.01 DISCHARGE QUANTITIES. The District shall have the right to discharge
Wastewater into the Point(s) of Entry for the System to the extent described in Exhibit B. It shall
be the sole responsibility of the District to convey its Wastewater to the designated Point(s) of
Entry.
5.02 RATE AND QUANTITY AT POINT(S) OF ENTRY. The rate and quantity of
Wastewater discharged into the System at the designated Point(s) of Entry by the District shall be
determined by "winter averaging" in accordance with the methodology attached hereto as Exhibit
H. The same methodology shall be utilized for purposes of calculating the flows of each of the
Cities. The District shall not discharge Wastewater into the System at such Point(s) of Entry at a
rate exceeding the quantities set forth in Exhibit B.
5.03 DISCHARGE QUALITY. The District shall discharge Wastewater into the
System meeting the requirements of quality as set forth in this Article and not containing wastes
identified in the List of Inadmissible Wastes attached as Exhibit D of this Agreement.
(a) General Requirements. In order to properly treat and dispose of the District's
Wastewater, to protect the public health, and to permit cooperation with other agencies which
have requirements for the protection of the physical, chemical, and bacteriological quality of
public water and watercourses, the District agrees to prohibit discharges into its own collection
system at unauthorized points of entry or at rates of flow or of quality not herein specified as
admissible.
(b) Admissible Wastes. Discharges into the System by the District shall consist only
of waste which the System is designed to treat and process:
(i) so that the effluent and sludge from the System meets the legal
standards of the EPA, the Commission or any governmental body having legal authority
to set standards for such effluents;
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(ii) without causing damage to the System which would result in
increased maintenance costs;
(iii) without causing excessive treatment costs; and
(iv) which meets the requirements of the EPA Pretreatment
Regulations, 40 CFR Part 403, Round Rock's applicable rules and the EPA -approved
pretreatment program for the System.
(c) Inadmissible Wastes. A List of Inadmissible Wastes is attached hereto as Exhibit
D. EPA and the Commission periodically modify standards on prohibited discharges; therefore,
revisions to, additions to or deletions from the items listed in this Section will become necessary
to comply with these latest standards. It is the intention of this Agreement that prohibited
discharge requirements be reviewed periodically by the Cities and that Exhibit D be revised by
the Cities in accordance with the latest standards of EPA, the Commission or federal or state
agency having regulatory authority over the discharges made to the System. Exhibit D may also
be revised on the basis of changes in the treatment process or the general character of Wastewater
received at the treatment plant from the District or indicated in the monitoring data related to the
District's discharges collected pursuant to the System pretreatment program. Any required
revisions shall be made by the Cities only after notice and opportunity to comment has been
provided to the District and shall become effective upon written notice thereof being given to the
District. The District shall be responsible for integrating such changes into its local sewer use
regulations and notifying all affected users of the change.
5.04 REGULATIONS. Discharges to the System shall be governed by the
requirements set forth in the EPA pretreatment regulations, Commission pretreatment regulations,
the List of Inadmissible Wastes, the System pretreatment program and District's respective sewer
use ordinances or regulations.
Periodically, the Cities will promulgate a new List of Inadmissible Wastes, Exhibit D of
this Agreement, in response to changes in federal or state requirements, changes in the treatment
process, or the general character of the Wastewater received at the treatment works, as described
in Section 4.04(c) above. The List of Inadmissible Wastes will contain pollutant allocations to the
District. The District is responsible for developing specific local limits from the pollutant
allocations and enforcing these limits through the District's regulations and sewer use permits.
Notwithstanding any provision in this Agreement or Master Agreement to the contrary, the
District is subject to the same quality requirements that apply to the Cities.
5.05 INDUSTRIAL WASTES. The District agrees to implement and enforce the
System pretreatment program for all areas receiving sanitary sewer service from the District. The
District also covenants that it will have in effect and will enforce sewer use regulations in
accordance with EPA and Commission regulations or regulations of other governmental agencies
having lawful jurisdiction to set standards for waste discharges. Furthermore, the District shall, at
any reasonable time upon request by Round Rock, produce pretreatment program records for
review.
The District also agrees that no new Significant Industrial User shall be allowed to
connect to the District's sewer system without prior notification being given by the District to
Round Rock of the intent to connect. The District will provide Round Rock with a copy of the
draft sewer use permit and permit application at the time such notification is given. All
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Significant Industrial Users that are customers of the District will also be required to obtain a
sewer use permit.
5.06 SYSTEM LIMITATIONS. Round Rock shall be obligated to receive into the
System at the Point(s) of Entry only Wastewater meeting the quantity limits and quality
requirements of this Article V. Since the capacity required for the District to discharge
Wastewater up to the District Contractual Flows has previously been constructed and for so long
as the District does not discharge Wastewater into the System in excess of the District
Contractual Flows, the District shall not be responsible for, and shall not be allocated any costs or
expenses associated with, the discharge by any other customer (including the Cities) of
Wastewater in excess of (i) the amount which the System is capable of receiving, treating, and
disposing, or (ii) a discharge made into the System by such other customer or the Cities which
would cause it to be overloaded or be in violation of its permits from the State of Texas and/or the
United States of America.
5.07 TITLE TO AND RESPONSIBILITY FOR TREATMENT AND DISPOSAL
OF WASTEWATER. Title to and responsibility for the reception, transportation, delivery and
disposal of all Wastewater discharged hereunder shall remain with the District to the Point(s) of
Entry, and upon passing through the Point(s) of Entry, title to and responsibility for the
Wastewater shall, except as provided in Section 7.18, pass to Round Rock, and Round Rock shall
be responsible for the proper reception, transportation, treatment and disposal of all such
Wastewater, meeting the applicable quality standards, received by it at the Point(s) of Entry.
Responsibility for proper reception, transportation, treatment and disposal of Wastewater received
by Round Rock at the Point(s) of Entry which does not meet the applicable quality standards shall
remain with the District and any expenses incurred by Round Rock in receiving, transporting,
treating and disposing of such non-compliant Wastewater shall be charged directly to the District
by Round Rock, upon demonstrating that such Wastewater was delivered by the District.
5.08 UNIT OF MEASUREMENT. The unit of measurement for Wastewater
delivered hereunder shall be one thousand (1,000) gallons, U.S. Standard Liquid Measure.
VI.
CHARGES
6.01 AUTHORIZED CHARGES. The Parties agree that the District's payment
obligation under this Agreement shall be limited to the following: (i) the District Capital Charge;
(ii) the District Flow Charge; (iii) the District Administrative Charge; and (iv) the Required
Improvements Charge. Each of the foregoing charges shall be calculated in accordance with the
terms of this Agreement, and the District shall not be charged, directly or indirectly, any other
costs or expenses relating to the System.
6.02 INELIGIBLE COSTS AND EXPENSES.
(a) The following costs and expenses shall not be included within the District Capital
Charge, the District Flow Charge, or the Required Improvements Charge, and the District may
not be charged, and shall have no responsibility for payment of, the following costs and expenses
either directly or indirectly:
(1)
Any administrative and overhead costs or expenses of Round Rock or the
Cities beyond the District Administrative Charge;
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(ii) Any design, engineering, inspection, construction or other costs related
to the Expansion, rehabilitation, or improvement of the System or any
System Component for which the District is not responsible for payment
under this Agreement;
(iii) Except as otherwise provided in this Agreement, any capital costs
relating to any portion of the System other than Phase 1 and Phase II of
the System.
(iv) Any debt service costs associated with any capacity within the System or
any System Component in excess of the District's Reserved Capacity;
(v) Any costs or expenses relating to refinancing any System debt that does
not result in a net present value cost savings to the District after taking
into account all costs and expenses of issuance of the debt;
(vi) Any operating, capital, or other financial reserves arising out of or
related to the operation, financing, or management of the System;
(vii) Any coverage costs arising out of or related to financing any portion of
the System;
(viii) Any portion of the costs referenced in Section 1.2(a), (c), and (d) of the
Purchase Agreement constituting the "Purchase Price" paid by the Cities
to LCRA for acquisition of the System;
(ix) Any costs and expenses that are not also paid by any City or Cities that
hold capacity in the System Component to which the cost or expense
relates; and
(x) Any other costs or expenses that do not qualify as Operation and
Maintenance Expenses, save and except those capital costs included
within the District Capital Charge.
(b) If, within 12 months after adoption of the District Flow Charge, District Capital
Charge, or Required Improvements Charge, the District asserts that any such charges include any
costs or expenses that are ineligible under this Section 6.02, it may pursue relief by filing a
protest within such 12 month period with the Round Rock City Council under the terms set forth
under Section 6.03 and Section 6.04 below. If it is subsequently determined by agreement,
administrative agency or court decision, or binding arbitration, that the disputed charge(s)
includes an ineligible cost or expense as established by this Section, Round Rock shall promptly
revise the charges in such manner to exclude such ineligible costs and expenses, and to provide
credit for any prior payments made by the District for such ineligible costs and expenses.
(c) As consideration for the transfer and conveyance of the District Surplus Capacity
to Round Rock by the District, Round Rock agrees that it will not seek to recover from the
District, directly or indirectly, any costs of the type identified in Section 1.2(a), (c), or (d) of the
Purchase Agreement.
6.03 ESTABLISHING CHARGES.
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(a) Initial Proposals. As soon as reasonably possible during the first partial Fiscal
Year and not less than forty-five (45) days before commencement of each Fiscal Year thereafter
while this Agreement is in effect, Round Rock shall furnish to the District copies of its annual
estimates of costs and flows for the System, the Annual Operation and Maintenance Expense
Requirement, the Flow Charge Requirement, the Required Improvements Budget, and the
resulting estimates of District Capital Charge, Required Improvements Charges, and District
Flow Charge projected to be incurred in the next ensuing Fiscal Year. Round Rock shall include
such information as may be reasonably necessary for the District to confirm that the District
Capital Charge, Required Improvements Charge, and District Flow Charge are calculated in
accordance with the terms and conditions of this Agreement.
(b) Approval of Charge if No Protest. If no protest or request for a hearing on such
tentative proposed District Capital Charge, District Flow Charge, or Required Improvement
Charge is presented within twenty-five (25) days after such filing of the proposed District Capital
Charge, District Flow Charge, and Required Improvement Charge and supporting documentation,
the proposed District Capital Charge, District Flow Charge, and Required Improvement Charge,
when approved by Round Rock's City Council, shall be deemed to be in effect for all purposes
for the next ensuing Fiscal Year.
(c) Procedures for Protest of Charges. If a protest or request for a hearing is duly
filed with respect to a charge established under this Section 6.03 or under Section 6.02, it shall be
the duty of Round Rock to fix a date and time for a hearing on the proposed District Capital
Charge, District Flow Charge, and/or Required Improvements Charge to be conducted in a
manner to enable interested persons to communicate such information as they shall desire to
present any such views as they shall desire to express to the Round Rock City Council. The party
filing such protest and the District shall be advised in writing of the time and place of such
hearing. After consideration of the information and comments produced at such hearing which
shall be reduced to written findings by Round Rock within fifteen (15) days of such hearing, the
Round Rock City Council may adopt the proposed District Capital Charge and/or District Flow
Charge or make such amendments thereof as may seem proper. The written findings shall
substantively address and respond to each issue raised in the protest or request for hearing. The
proposed District Capital Charge and/or District Flow Charge thus approved by the City Council
of Round Rock shall be deemed to be in effect for the next ensuing Fiscal Year.
(d) The Parties agree that the District Capital Charge, the District Flow Charge, and
the Required Improvements Charges shall be just and reasonable, and shall not be unreasonably
preferential, prejudicial, or discriminatory.
(e) As soon as reasonably possible during the first Fiscal Year, Round Rock will
provide the District with a Flow Charge Requirement for the remaining portion of the first Fiscal
Year.
6.04 DISPUTES.
(a) The District shall retain such rights as it may possess under applicable law to
seek administrative or judicial review of Round Rock's charges under this Agreement. If the
District at any time disputes the amount to be paid by it under this Agreement, the District shall
nevertheless promptly make the payment or payments determined by Round Rock and shall
notify Round Rock in writing of the dispute. If it is subsequently determined by agreement,
administrative agency or court decision, or binding arbitration, that such disputed payments made
by the District should be changed, Round Rock shall promptly revise the charges in such manner
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that the District will pay amounts which permit Round Rock to receive the entire amount of the
District Capital Charge, District Flow Charge, and Required Improvements Charges permitted
hereunder as the same may be modified by final effective order of an administrative agency or
court of appropriate jurisdiction, or by binding arbitration. If the District Capital Charge, District
Flow Charge, and Required Improvements Charges are redetermined as herein provided, Round
Rock will promptly furnish the District with an updated schedule of monthly payments reflecting
such redetermination, which shall include credit for any prior payments made by the District for
costs or expenses that should not have been levied or collected.
(b) In lieu of seeking judicial or administrative review, the District may submit any
protest or dispute relating to the budget or the District Capital Charge, District Flow Charge,
and/or Required Improvements Charges to binding arbitration in accordance with Article VIII
below. Any such election must be made, and written notice thereof filed with Round Rock,
within 30 days after receipt of the written findings of the Round Rock City Council. In the event
the District prevails in any such appeal proceeding, the charges shall be recalculated within 30
days to reflect the ruling, and any prior overpayment by the District shall be credited
immediately.
6.05 CHANGES FROM EMERGENCIES AND LEGAL ACTION.
(a) Round Rock may adopt amendments to the District Capital Charge, District Flow
Charge, and Required Improvements Charges by following a process similar to that provided
above for the establishment of such matters initially if, during a Fiscal Year, the District Capital
Charge, District Flow Charge, or Required Improvement Charge are changed due to:
(1)
unanticipated emergency capital expenses are experienced that are
properly allocable to the District under this Agreement; or
(ii) an adjustment is necessitated by regulatory requirement.
(b) Any such amendments to the District Capital Charge, District Flow Charge, or
Required Improvements Charge shall be subject to all terms, conditions, and limitations of this
Agreement relating to initial establishment of the District Capital Charge, District Flow Charge,
and Required Improvements Charges.
6.06 DISTRICT CAPITAL CHARGE; UNCONDITIONAL PAYMENT
OBLIGATION.
(a) General. On or before the fifteenth day of each month, the District shall pay its
District Capital Charge. During the term of this Agreement, the District Capital Charge for the
District to be paid each month shall be determined by allocating one -twelfth (1/12) of the total
District Capital Charge for the Fiscal Year in the amount set forth in Exhibit A, which the
District and Round Rock believe is a reasonable basis upon which to allocate said costs.
(b) It is hereby agreed that upon the effective date of this Agreement, the District
shall be unconditionally obligated to pay the District Capital Charge, District Flow Charge,
District Administrative Charges, and Required Improvements Charges regardless of whether or
not the District actually discharges Wastewater hereunder, whether due to Force Majeure or
otherwise. The District agrees that its obligation to pay the District Capital Charge, District Flow
Charge, District Administrative Charges, and Required Improvements Charges shall be absolute
and unconditional, irrespective of any rights of set-off, diminution, abatement, recoupment or
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counterclaim the District might otherwise have against Round Rock or any other person, and the
District covenants not to seek and hereby waives, to the extent permitted by applicable law, the
benefits of any rights which it may have at any time to any stay or extension of time for
performance or to terminate, cancel or limit its liability to pay the District Capital Charge, District
Flow Charge, District Administrative Charges, and Required Improvements Charges. Such
additional agreement shall in all respects be consistent with the requirements of this Agreement
regarding the payment of the District Capital Charge, District Flow Charge, District
Administrative Charges, and Required Improvements Charges by the District. This provision
shall not be construed to prevent the District from appealing the amount of the District Capital
Charge, District Flow Charge, District Administrative Charges, and Required Improvements
Charges in accordance with the dispute provisions of this Agreement.
(c) The preceding paragraph shall not be construed to release Round Rock from the
performance of any of its undertakings contained in this Agreement or, except to the extent
provided in this section, prevent or restrict the District from asserting any rights which it may
have against Round Rock or any other person under this Agreement or under any provision of law
or prevent or restrict the District, at its own cost and expense, from prosecuting or defending any
action or proceeding against or by third parties or taking any other action to secure or protect its
rights under this Agreement.
(d) In the event additional capital costs are incurred for an Expansion, for
rehabilitation, or to improve the efficiency of the System or any System Component, the City of
Round Rock will either pay cash or issue additional debt for such improvements. To the extent
that the capital costs of such project are allocable to the District under this Agreement and the
District elects to not pay for its share of the capital costs by cash, Exhibit A will be amended
accordingly, such that the District's share of the additional capital costs of the project will be
added to its debt, which will be based on the District's Reserved Capacity, relative to the total
capacity, of the System Components being improved. In the event that Round Rock issues debt
to finance the additional capital costs, Exhibit A will reflect the same interest rate as incurred by
Round Rock. In the event that Round Rock pays for the costs by cash but the District elects not
to do so, then Exhibit A shall reflect an interest rate as if such amounts had been borrowed at the
then current market interest rate by a governmental entity similar to Round Rock and with a
similar credit rating based on the Delphis Hanover Corporation's Range of Yield Curves' yield,
or a comparable index if such yield does not exist.
6.07 DISTRICT FLOW CHARGE
(a) Round Rock shall adopt, or cause the adoption, of the Annual Operation and
Maintenance Expense Requirement, the Flow Charge Requirement, and the Required
Improvements Budget each year, and furnish a copy thereof to the District, in accordance with
Section 6.03 of this Agreement.
(b) Except for the initial partial year of this Agreement, the District Flow Charge
shall be equal to 1/12 of the amount calculated by multiplying the flows of Wastewater from the
District's collector system into the System during the twelve (12) month period ending on April
30 preceding the beginning of the fiscal year for which the calculation is being made, expressed
in thousands of gallons, by the quotient obtained by dividing the Flow Charge Requirement for
the period for which the calculation is being made, expressed in dollars, by the total flows into the
System, also expressed in thousands of gallons, during the twelve (12) months period ending on
such April 30. For the purposes of this paragraph, the District's flows will be determined in
accordance with the methodology set forth in Section 5.02.
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(c) For the initial partial year of this Agreement, the District Flow Charge shall be
equal to the fraction obtained by dividing 1 by the number of complete months in the remainder
of the fiscal year in which this Agreement is executed multiplied by the quotient obtained by
dividing the Flow Charge Requirement for the same number of months, expressed in dollars, by
the total estimated flows into the System, expressed in thousands of gallons, during the same
monthly period. For the purposes of this paragraph, the District's flows will be determined in
accordance with the methodology set forth in Section 5.02.
(d) The Parties further agree as follows with respect to the District Flow Charge:
(i) The District will not be allocated any costs or expenses in the
Flow Charge Requirement that are not also charged to, and paid by, Brushy Creek
MUD and the Cities.
(ii) Brushy Creek MUD and each of the Cities will pay for the Flow
Charge Requirement through the payment of a unit charge per 1,000 gallons of
Wastewater contributed to the System during the same accounting period for which the
District Flow Charge is calculated, such that the District and each of the Cities will pay
the same cost per 1,000 gallons of Wastewater to contribute to that portion of the
Annual Operation and Maintenance Expense Requirement allocated to the Flow Charge
Requirement.
(iii) In the event that the Cities' payment for the Flow Charge
Requirement are adjusted based on actual calculated flows or actual Operation and
Maintenance Expenses, then Round Rock shall report to the District the difference, if
any, between the amounts collected from the District and the actual District Flow
Charge. The difference, if any, shall be applied as an adjustment in calculating the
District Flow Charge for the fiscal year immediately following the fiscal year in which
the actual District Flow Charge are known; provided, however, that the District shall
not be allocated any Ineligible Costs and Expenses.
(iv) The Flow Charge shall not recover any costs or expenses
associated with Required Improvements, it being understood that such costs and
expenses shall be recovered through the Required Improvement Charge or Capital
Charge.
6.08 DISTRICT ADMINISTRATIVE CHARGE. Each month, the District shall be
required to pay the District Administrative Charge.
6.09 REQUIRED IMPROVEMENTS CHARGES.
(a) In the event of any Required Improvement to the System for which the District is
responsible for payment under this Agreement and the costs of which are not otherwise paid
through the Capital Charge, then the District shall provide payment of the Required
Improvements Charge within 30 days of a receipt of an invoice for payment. Any budgeted
Required Improvement shall be included within the Required Improvements Budget. Any
invoice for payment of a Required Improvements Charge shall include a description of the
Required Improvement, the total cost of the Required Improvement, and the costs associated
therewith allocated to the District and to each of the Cities. In connection with the Required
Improvements Charge, Round Rock agrees as follows:
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(i) Round Rock shall provide in writing to the District as much
advance notice as is reasonably practicable of any Required Improvement that is not
included within the Required Improvements Budget;
(ii) The amount of the Required Improvements Charge shall be
based on the District's Reserved Capacity in the System Component that is the subject
to the Required Improvement relative to the total capacity of such System Component;
(iii) The remaining costs of the Required Improvement shall be
allocated to each of the Cities and to Brushy Creek MUD according to their respective
Reserved Capacities, if any, in the System Component that is the subject of the
Required Improvement;
(iv) Except in the case of emergencies, any Required Improvements
Charge shall not exceed $100,000.00 per Required Improvement without the District's
prior consent. In the event that additional capital costs are incurred by Round Rock for
any Required Improvement, the City of Round Rock will either pay cash or issue
additional debt for such costs. To the extent that the capital costs of such project are
allocable to the District under this Agreement and the District elects to not pay for its
share of the capital costs by cash, Exhibit A will be amended accordingly, such that the
District's share of the costs of the Required Improvement will be added to its debt,
which will be based on the District's Reserved Capacity, relative to the total capacity,
of the System Components being improved. In the event that Round Rock issues debt
to finance the costs of the Required Improvement, Exhibit A will reflect the same
interest rate as incurred by Round Rock. In the event that Round Rock pays for the
costs by cash but the District elects not to do so, then Exhibit A shall reflect an interest
rate as if such amounts had been borrowed at the then current market interest rate by a
governmental entity similar to Round Rock and with a similar credit rating based on the
Delphis Hanover Corporation's Range of Yield Curves' yield, or a comparable index if
such yield does not exist.
(v) The same methodology shall be utilized to recover the costs of
Required Improvements from the Cities, such that any of the Cities that hold capacity in
the System Component undergoing the Required Improvement shall be invoiced and
required to pay its share of such costs for the Required Improvement in a lump sum
payment, under the same terms and conditions as the District; and
(vi) Round Rock shall not charge the District in a Required
Improvement Charge any costs or expenses for which the District is not responsible for
payment under the terms of this Agreement.
(b) In the event that the operator of the System or any other entity pays the costs of
any Required Improvements during a Fiscal Year and recovers the costs thereof from one or more
of the Cities during the subsequent Fiscal Year in one or more payments, then Round Rock agrees
that the District shall have the same right to pay its pro rata share of the costs of a Required
Improvement during such next Fiscal Year under the same terms and conditions as the City or
Cities responsible for payment of such costs.
6.10 COSTS OF EXPANSIONS AND OTHER IMPROVEMENT PROJECTS.
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(a) The District shall not be allocated any costs of any Expansion of the System
unless all or a portion of the Expansion is constructed at the District's request to meet the
District's needs. Except in the event of emergencies, for any proposed Expansion for which the
District will be allocated costs under this Agreement, Round Rock agrees to provide to the
District not Tess than 120 days prior written notice, along with information regarding the necessity
and purpose thereof, the projected costs thereof, the allocation of costs associated therewith
between the District and each of the Cities (as applicable), and the revised percentage capacities
of the Cities and the District in the System Component(s) subject to the Expansion. Round Rock
shall provide an opportunity to the District to fund its pro rata share of each Expansion through
cash rather than amendment of the Capital Charge.
(b) In the event additional capital costs are incurred to improve the efficiency of the
System or of any System Component utilized for service to the District, the City of Round Rock
reserves the right to issue additional debt for such improvements on behalf of the District.
Exhibit A will be amended accordingly, such that the District's share of the additional debt will
be based on the District's Reserved Capacity, relative to the total capacity, of the System
Components being improved. Round Rock agrees to provide not Tess than 120 days prior written
notice of any such proposed improvement, along with a sealed independent engineering report
addressing the projected costs thereof, the benefits and projected cost savings of the
improvement, and the allocation of costs associated with the improvement between the District
and each of the Cities. Round Rock shall provide an opportunity to the District to fund its pro
rata share of such improvements through cash rather than amendment of the Capital Charge.
(c) In the event additional capital costs are incurred due to rehabilitation of the
System or any System Component that serves the District, Round Rock reserves the right to issue
additional debt for such improvements on behalf of the District. Exhibit A will be amended
accordingly, such that the District's share of the additional debt will be based on the District's
Reserved Capacity, relative to the total capacity, of the System Component(s) being rehabilitated.
Except in the event of emergencies, Round Rock agrees to provide not less than 1 80 days prior
written notice of any such proposed rehabilitation project, along with information regarding the
necessity thereof, the projected costs thereof, and the allocation of costs associated therewith
between the District and each of the Cities. Any such notice must include a sealed engineering
report from an independent engineering firm recommending the proposed rehabilitation project
and specifying the allocation of costs between the District and each of the Cities. Round Rock
shall provide an opportunity to the District to fund its pro rata share of each rehabilitation project
through cash rather than amendment of the Capital Charge.
(d) In the event any rehabilitation or efficiency improvement project also includes an
Expansion, then the sealed engineering report furnished to the District will specifically address
and make a recommendation regarding the allocation of costs associated therewith to the District,
based upon consideration of the following factors: (i) that the District should not pay any costs
associated with the Expansion of capacity in the System Component(s); and (ii) the District
should pay a pro rata share of the costs associated with the rehabilitation and/or improvement in
efficiency based on the capacity that replaces the District's existing Reserved Capacity in the
System Component(s).
(e) The costs of any engineering reports required under this Section shall be
considered a project cost and funded as a capital charge and allocated to the participants in the
project accordingly.
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6.11 HOW, WHEN AND WHERE PAYMENTS ARE TO BE MADE. Delivery
to the District of the final budgets for a Fiscal Year, together with the schedule of resulting
District Capital Charge, District Flow Charge, and the District Administrative Charge, shall
constitute the invoice for same for the entire Fiscal Year. Payment of all District Capital Charge,
District Flow Charge, Required Improvements Charges, and the District Administrative Charge
required to be paid by the District under the provisions of this Agreement shall be made to Round
Rock. All charges payable for any calendar month shall be due and payable in Williamson
County, Texas, on or before the fifteenth day of such month. Past due payments shall bear interest
from the date due until paid at the lower of ten percent (10%) per annum or the highest lawful
rate in the State of Texas. Should the District desire, Round Rock agrees to cooperate in good
faith to permit the District to prepay any District Capital Charge owed or anticipated to be owed
under this Agreement.
6.12 DEFAULT.
(a) Monetary Defaults by District. In the event the District defaults in the payment of
the District Capital Charge, District Flow Charge, Required Improvements Charges, or the
District Administrative Charge required hereunder, Round Rock shall immediately give notice of
such default to the District; provided, however, that nothing in this section shall prevent the
District from paying under protest any amount alleged as owed to Round Rock or prevent Round
Rock from accepting any payment even if less than the amount alleged by Round Rock as owed
by the District. Payment or receipt of any such disputed amount shall not be construed as a waiver
of any right of the party making or receiving such disputed amount to contest such matter and to
demand payment or receipt of a different amount. Thereafter, the District shall take all
appropriate steps to correct such default and shall correct such default within ten (10) days after
receipt of such notice. Any past due amount shall be paid, together with interest at the rate of ten
percent (10%) per annum or the maximum legal rate of interest then in effect, whichever is
greater.
(b) Other Defaults by District or Round Rock. In the event that the District or Round
Rock defaults in the performance of any of their respective obligations under this Agreement,
other than the obligation to make payments of the District Capital Charge, District Flow Charge,
Required Improvements Charges, or the District Administrative Charge, the non -defaulting party,
after giving reasonable notice of the default and opportunity to cure same, may exercise any
remedy at law or in equity or as provided below in Article VIII.
VII.
GENERAL PROVISIONS
7.01 PAYMENTS TO CONSTITUTE OPERATING EXPENSES OF
DISTRICT. The District represents and covenants that the services to be obtained pursuant to
this Agreement are essential and necessary to the operation by the District of its own wastewater
facilities and the provision of sanitary sewer services to its constituents, and that all payments to
be made hereunder by it will constitute essential and necessary operating expenses of the
District's waterworks and sanitary sewer systems, and the provisions of all resolutions, as
appropriate, authorizing the issuance of all bonds of the District which are payable from revenues
of the District's waterworks and sanitary sewer systems payable from the revenues of said system
and from the proceeds of its maintenance tax. The parties acknowledge that Round Rock intends,
in cooperation with the other Cities, to own and operate the System as capital improvements on
behalf of the District within the meaning of Section 395.002(1), Texas Local Government Code.
The parties understand and agree that the decision as to whether the capital improvements
15
constructed or acquired by Round Rock on behalf of the District are used to serve new
development (within the meaning of Section 395.001(6), Texas Local Government Code) and the
decision as to whether to impose any impact fees (within the meaning of Section 395.001(4),
Texas Local Government Code) is exclusively that of the District. Round Rock agrees, upon
receiving a written request from the District, to provide information and other assistance
regarding Round Rock's calculation of the District Capital Charge to assist the District in its
efforts to implement or defend any capital recovery fee or impact fee of the District related to the
System. Expenses incurred by Round Rock in providing such information to the District shall be
paid through the District Administrative Charge.
7.02 DISTRICT'S RATES, FEES AND CHARGES. Round Rock acknowledges
that the District has the right under applicable law to assess, charge and collect such District
maintenance taxes, impact fees, capital recovery fees, connection fees, meter fees, or other
service fees, rates, taxes or other charges as it will deem appropriate. Round Rock will not
construe this Agreement to require (except as provided otherwise in this Section), limit or restrict
the governmental power of the District to implement the same. The District will be solely
responsible for the proper exercise of its governmental power to assess and collect such fees and
charges and for ensuring that all fees, taxes, rates and charges the District elects to charge are in
compliance with applicable law. The District agrees to establish and collect such taxes, rates and
charges for its waterworks and sanitary sewer services to be supplied by its system as will make
possible the prompt payment of all expenses of operating and maintaining its system including
the payments committed hereunder, and the prompt payment of the principal of and interest on its
obligations, if any, payable from the revenues of its waterworks and sanitary sewer systems.
7.03 USE OF PUBLIC PROPERTY. By these presents, the District, to the extent
capable under existing law, authorizes use by Round Rock of general utility or sewer easements
and rights-of-way of the District for construction, operation and maintenance of the System, so
long as such use is in compliance with the terms of any easement or right-of-way utilized by
District and does not interfere with any lawful use or proposed use by the District and subject to
all of the District's rules and regulations respecting the manner of such use and restoration of
lands, pavement or improvements resulting from exercise of the rights provided in this section,
including the cost of relocation of any facilities located within any such easement or right-of-way
as an expense of the System. Round Rock will cooperate with the District in the timing, planning
and installation of the System to be constructed and installed hereunder.
7.04 FORCE MAJEURE. In case by reason of "Force Majeure" any party hereto
shall be rendered unable wholly or in part to carry out its obligations under this Agreement, then
if such party shall give notice and full particulars of such "Force Majeure" in writing to the other
parties within a reasonable time after occurrence of the event or cause relied on, the obligation of
the party giving such notice, so far as it is affected by such Force Majeure, with the exception of
the obligation to pay amounts owed hereunder, shall be suspended during the continuance of the
inability then 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 acts of God, strikes, lockouts or other industrial disturbances, acts of public
enemy, orders of any kind of the United States or the State of Texas or any civil or military
authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes,
storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances,
explosions, breakage or accidents to machinery, pipelines or canals, partial or entire failure of
water supply and inability on the part of the District to provide water necessary for operation of
its water and wastewater system hereunder or of Round Rock to receive Wastewater on account
of any other causes not reasonably within the control of the party claiming such inability. It is
16
understood and agreed that the settlement of strikes and lockouts shall be entirely within the
discretion of the party having the difficulty and that the above requirement that any Force
Majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes
and lockouts by acceding to the demands of the opposing party or parties when such settlement is
unfavorable in the judgment of the party having the difficulty.
7.05 GOVERNMENTAL REGULATION. This Agreement shall be subject to all
valid rules, regulations and laws applicable hereto passed or promulgated by the United States of
America, the State of Texas or any governmental body or agency having lawful jurisdiction or
any authorized representative or agency of any of them. In each instance herein where reference
is made to a federal or state regulation, it is the intention of the parties that at any given time the
then current edition of any such federal or State regulation shall apply. Round Rock and the
District agree that their obligations under this Agreement shall include compliance with the
requirements made under said laws, and any rules and regulations issued pursuant thereto. New
standards shall be adopted by the District, and Round Rock which are in compliance with
applicable State and federal laws and any valid rules and regulations issued pursuant thereto.
7.06 DISTRICT COOPERATION TO ASSURE REGULATORY
COMPLIANCE. Since Round Rock and the other Cities must comply with all federal, state and
local requirements to obtain permits, grants and assistance for system construction, studies, etc.,
the District will cooperate with the Cities in good faith at all times to assure compliance with any
such governmental requirements where noncompliance or non-cooperation by the District may
subject Round Rock to penalties, loss of grants or other funds, or other adverse regulatory action.
In making the determinations called for herein, Round Rock covenants that such determinations
will be made only after detailed studies of statistical data available as to the need and feasibility
have been made and after consulting with engineers and financial advisors. The District will be
kept advised at all times of planning and implementing Required Improvements. In that regard,
the District agrees to adopt and enforce, and to provide in its wholesale contracts with its water
customers in the future that they shall adopt and enforce, an appropriate water conservation
and/or drought management plan as required by the Texas Water Development Board.
7.07 CONTRACTS WITH OTHERS IN RELATION TO SYSTEM.
(a) Subject to obtaining the consent of Round Rock as set forth in Section 7.08, the
District shall have the right to enter into contracts with other persons natural or corporate, private
or public, to receive Wastewater from such persons. The District covenants that it will provide
Round Rock with copies of all such written contracts and will, if requested by Round Rock,
furnish Round Rock with a list of all customers other than retail, residential customers. Initially,
within thirty (30) days after execution of this Agreement, and thereafter for each calendar year the
tenure hereof, the District will send to Round Rock by January 15 of each year an annual report
containing the following data about the District's customers that the System ultimately serves:
(1)
(2)
(3)
actual number of connections as of the end of the calendar year;
number of new wastewater connections made in the previous calendar year;
classification, by number and percentage, of accounts according to the following:
(1) residential;
(ii) multi -family;
(iii) business/commercial; and
(iv) other; and
17
(4) if business or commercial connections, a copy of any District industrial waste
discharge permit issued to such premises.
Notwithstanding the foregoing, in the event that the wastewater flow calculation methodology
does not require such data to calculate the quantity of Wastewater flows discharged into the
System, then the District's obligation to furnish such data shall terminate.
(b) Subject to the following subsection (c), Round Rock shall have the right to enter
into or amend agreements with other persons so long as such agreements or amendments do not
prevent Round Rock from meeting its obligations to provide service to the District from the
System in accordance with this Agreement and do not result in alienation of Reserved Capacity
necessary to meet the District's needs. Under no circumstances may Round Rock enter into such
agreements that would require the use of Wastewater facilities owned or operated by the District
without the District's prior written consent.
(c) To the extent of any conflict between the Master Contract and this Agreement,
the terms of this Agreement shall control.
(d) The District hereby releases any right or claim to the District Surplus Capacity,
and further agrees as follows with respect thereto: (i) as of the Effective Date, Round Rock shall
be the owner of the District Surplus Capacity; and (ii) Round Rock shall be entitled to all
consideration that may be received from Leander (or any third party) in connection with the
District Surplus Capacity, and the District shall have no right to any portion of such
consideration. Round Rock agrees that from and after the Effective Date, the District Capital
Charge, District Flow Charge, and the Required Improvements Charges shall not include any
costs or expenses associated with the District Surplus Capacity, and Round Rock shall not seek to
recover, either directly or indirectly, any such costs from the District.
7.08 NON -INFRINGEMENT. The District agrees that it will not provide or enter
into an agreement to provide Wastewater service directly or indirectly outside of its service area
unless Round Rock and the City in whose service area the service is to be provided consents. For
purposes of this Section, the District's service area shall mean the area presently served by the
District as shown in Exhibit F and the property known as the Ivie Tract as described in Exhibit
F.
7.09 ANNUAL REPORT OF SYSTEM AND AUDITS.
(a) Round Rock shall cause to be prepared an annual report of the System each year.
Such report shall contain such matters and information as may be considered necessary and useful
by Round Rock. A copy of the annual report and Round Rock's annual audit, and accompanying
management letters will be posted on Round Rock's webpage or otherwise made available to the
District.
(b) Round Rock agrees that the District may retain, at its sole cost and expense, an
independent auditor from time to time to confirm the District is allocated costs and expenses in
accordance with the terms of this Agreement. Round Rock agrees to reasonably cooperate with,
and make information available to, the auditor.
7.10 NO ADDITIONAL WAIVER IMPLIED. No waiver or waivers of any breach
or default (or any breaches or defaults) by any party hereto of any term, covenant, conditions, or
liability hereunder, or of performance by the other parties of any duty or obligation hereunder,
18
shall be deemed or construed to be a waiver of subsequent breaches or defaults of any kind, under
any circumstances.
7.11 ADDRESSES AND NOTICE. Unless otherwise provided, in this Agreement,
any notice, communication, request, reply, or advice (herein severally and collectively, for
convenience, called "Notice") herein provided or permitted to be given, made or accepted by any
party to the others must be in writing and may be given or be served by depositing the same in the
United States mail postpaid and registered or certified and addressed to the party to be notified,
with return receipt requested, or by delivering the same to an officer of such party, or by
telecopier, when appropriate, addressed to the party to be notified. Notice deposited in the mail in
the manner hereinabove described shall be conclusively deemed to be effective, unless otherwise
stated in this Agreement, from and after the expiration of four (4) days after it is so deposited.
Notice given in any other manner shall be effective only if and when received by the party to be
notified. For the purpose of notice, the addresses of the parties shall, until changed as hereinafter
provided, be as follows:
If to Round Rock, to:
City Manager
City of Round Rock
221 E. Main St.
Round Rock, Texas 78664
with a copy to:
Stephan L. Sheets
Sheets & Crossfield
309 E. Main St.
Round Rock, Texas 78664
If to the District, to:
General Manager
Fern Bluff Municipal Utility District
7320 Wyoming Springs Drive
Round Rock, Texas 78681
Fax No. (512) 238-7323
with a copy to:
Phil Haag
McGinnis, Lochridge & Kilgore, L.L.P.
600 Congress Ave., Suite 2100
Austin, Texas 78701
Fax (512) 505-6308
The parties shall have the right from time to time and at any time to change their
respective addresses and each shall have the right to specify as its address any other address by at
least fifteen (15) days written notice to the other parties.
19
7.12 MODIFICATION. This Agreement may not be changed or modified without
the mutual consent of the governing bodies of each of the parties hereto, which consent shall not
be unreasonably withheld or delayed.
7.13 ASSIGNABILITY; SUCCESSORS IN INTEREST. This Agreement shall not
be assignable by any party without the prior written consent of the other parties, which consent
shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Round Rock
hereby consents to the assignment of this Agreement by the District to any municipality that is
incorporated and encompasses the territory within the District. Upon assignment of this
Agreement by the District, or upon dissolution of the District by operation of law as a result of
annexation of the entire District by a municipality, the rights and obligations of the District under
this Agreement shall be binding upon, and inure to the benefit of, the District's assignee or
successor in interest.
7.14 SEVERABILITY. The provisions of this Agreement are severable, and if any
provision or part of this Agreement or the application thereof to any person or circumstance shall
ever be held by any of competent jurisdiction to be invalid or unconstitutional for any reason, the
remainder of this Agreement and the application of such provision or part of this Agreement to
other persons or circumstances shall not be affected thereby.
7.15 MERGER. Other than the other contracts mentioned herein, this Agreement
constitutes the entire agreement between the parties relative to the subject matter thereof. Except
as noted in the previous sentence, there have been and are no agreements, covenants,
representations or warranties between the parties other than those expressly stated herein or
expressly provided for herein.
Texas.
7.16 VENUE. Venue for any action arising hereunder will be in Williamson County,
7.17 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement, express or
implied, is intended to confer upon any person or entity, other than the parties hereto, any rights,
benefits, or remedies under or by reason of this Agreement.
7.18 REUSE OF TREATED EFFLUENT FROM SYSTEM. Nothing contained
herein shall be construed as the District relinquishing its reuse rights to Wastewater effluent
attributable to the Wastewater flows of the District that are delivered to the System. Round Rock
agrees that it will not in any way reuse the Wastewater effluent attributable to the District's flows
without the express written consent of the District.
7.19 CAPITAL IMPROVEMENT PLANS, ENGINEERING REPORTS, AND
STUDIES. Round Rock agrees to promptly furnish to the District copies of all engineering
reports, capital improvement plans, operation reports, and similar studies or reports relating to the
maintenance, operation, repair, rehabilitation, or Expansion of the System or any System
Component, as they are prepared or received from time to time.
VIII.
NEGOTIATION AND ARBITRATION OF DISPUTES
8.01 AGREEMENT REGARDING REMEDIES. The parties agree that their
respective obligations under this Agreement are unique and recognize that Round Rock may be
issuing its bonds to acquire, construct, expand, improve or replace the System and may pledge the
20
revenues from this Agreement to secure payment of principal of, premium, if any, and interest on
the bonds. The failure by any party to perform its obligations under this Agreement would not be
capable of being appropriately remedied by award of damages to any other affected party to this
Agreement and in any event, such damages would be difficult, if not impossible, to determine
because of the unique nature of the parties' obligations to each other hereunder. Further, the
parties agree that the remedy of termination of this Agreement by any party is inappropriate and
not in the public interest. Therefore, the parties agree that they shall be entitled, and limited, to
the remedies of specific performance, mandamus and injunction in the event of any breach of any
obligation by any party under this Agreement. The parties hereby waive any requirement that
they be required to provide any bond or other surety in order to obtain any of the agreed upon
remedies. The parties also agree that attorney's fees and court costs incurred by any party
prevailing in any legal action to enforce this Agreement or collect or defend any amounts owed or
claimed as owed shall be paid by the non -prevailing party.
8.02 AGREEMENT TO NEGOTIATE FIRST TO RESOLVE ISSUES. The
parties agree to attempt first to resolve disputes concerning this Agreement amicably by promptly
entering into negotiations in good faith. The parties agree that they will not refer any dispute to
another dispute resolution procedure including arbitration or litigation until they have first made
reasonable and good faith efforts to settle their differences by joint negotiations conducted in a
timely manner.
8.03 ELECTION OF REMEDIES. If any dispute cannot be resolved through good
faith negotiation, then the parties may resolve the dispute by binding arbitration as provided
herein. An election to arbitrate any dispute by either party shall be binding, and shall preclude
the same dispute from being resolved by judicial or administrative proceeding (except to the
extent required to enforce the arbitrator's decision).
8.04 PRESENTATION OF WRITTEN CLAIM REGARDING DISPUTES NOT
RESOLVED BY NEGOTIATION. In the event that a dispute is not resolved as a result of such
negotiations, either party may at any time give formal written notice to the other of a "claim." A
"claim" as used herein means a demand or assertion by one of the parties (the "claimant")
seeking, as a matter of right, adjustment or interpretation of contract terms, the payment of
money, an extension of time for performance or other relief with respect to the terms of this
Agreement or any other dispute or matter in question among the parties arising out of or related to
this Agreement. By way of example and without limitation, a claim may relate to the calculation
of charges, the allocation of costs, the reasonableness of costs, compliance with this Agreement,
and calculation or allocation of flows within the System. Such notice shall be in writing, and
shall specify whether the forum for resolution of the dispute shall be judicial, administrative, or
binding arbitration. If a party elects to resolve a claim by binding arbitration, the dispute
resolution procedure provided for below shall immediately enter into effect.
8.05 PERFORMANCE DURING ARBITRATION. The claimant shall continue
with performance under this Agreement pending arbitration of the dispute.
8.06 APPOINTMENT OF ARBITRATOR. Promptly following the making of a
written claim by any party, the parties will consult with one another to agree on the appointment
of an arbitrator acceptable to all parties. The arbitrator shall have experience in matters of the
kind giving rise to the claim. If within five (5) business days the parties are unable to agree on the
appointment of an arbitrator, then any party may request the appointment of an arbitrator by the
Center for Public Policy Dispute Resolution at the University of Texas at Austin School of Law.
The parties shall endeavor to secure such appointment from the Center for Public Policy Dispute
21
Resolution within ten (10) business days after the request for same is made. The parties agree to
utilize the arbitrator appointed by the Center unless they ultimately reach agreement on an
alternative selection and give notice to the Center that another selection has been made by
agreement.
8.07 RULES FOR BINDING ARBITRATION. The parties agree to the following
stipulations concerning the conduct of the arbitration:
interest.
(a) The arbitrator shall be impartial among the parties and shall have no conflict of
(b) The arbitrator shall not have any past, present or anticipated financial interest in
the Agreement or the System except for the payment for services as arbitrator nor shall the
arbitrator have been previously employed or acted as a consultant, attorney, employee, engineer,
architect, contractor or subcontractor of any party nor have any present or anticipated future
engagement of kind described. Before the engagement of the arbitrator is finalized, the arbitrator
shall provide to the parties a disclosure statement containing a resume of experience, a
description of past, present or anticipated future relationships to the System and the parties, their
engineers, contractors, subcontractors, attorneys, architects, or consultants.
(c) The arbitration shall be held at a time and location mutually agreeable to the
parties and the arbitrator provided, however, that the arbitration shall commence no later than
fifteen (15) business days following the confirmation of appointment.
(d) At least five (5) business days prior to the arbitration, the claimant shall submit to
the parties and the arbitrator a statement of the claimant's position, the issues that need to be
resolved and a summary of the arguments supporting the claimant's position. At least two (2)
business days prior to the arbitration, the responding parties shall submit their written response to
the claimant's statement and provide a summary of their arguments in response.
(e) If the parties agree that independent expert or technical advice would be helpful
in facilitating a negotiated resolution of the dispute, the arbitrator may make arrangements to
obtain such advice, and may, with the agreement of the parties, make arrangements for an
independent expert to render a non-binding advisory opinion with respect to any technical matters
in dispute after hearing the contentions of the parties with respect thereto. The expenses of
obtaining such independent advice or advisory opinion shall be borne equally by the parties.
(f) No party shall engage ill any private interview, discussion or argument with the
arbitrator concerning the subject matter of the arbitration.
(g) The fees of the arbitrator and any other costs of administering the arbitration
shall be borne equally by the parties unless otherwise agreed among them in writing.
(h) The arbitrator may promote settlement in any manner the arbitrator believes
appropriate at one or several arbitration sessions as agreed to by the parties. The arbitration shall
continue only so long as desired by the parties and with the consent of all of them.
(i) Arbitration sessions shall be private unless otherwise required by law. Persons
other than the representatives of the parties may attend arbitration sessions only with the
permission of all parties and the consent of the arbitrator.
22
(j) All communications made in the course of the arbitration process including any
advice or advisory opinions rendered shall be confidential in accordance with V.T.C.A. Civil
Practice and Remedies Code, Section 154.073.
(k) The arbitrator's decision shall be final and binding upon the parties.
8.08 EXCEPTION. Notwithstanding the foregoing provisions of Sections 8.02-8.07,
the parties agree that those provisions shall not be applicable in emergency situations.
8.09 WAIVER OF SOVEREIGN IMMUNITY. The Parties acknowledge and
agree that this Agreement is a written contract stating the essential terms of an agreement for
providing goods and services to the District, and that the parties intend to waive their sovereign
immunity to suit for the sole purpose of adjudicating a claim for breach of this Agreement,
subject to the terms and conditions of Subchapter 1 of Chapter 271 of the Texas Local
Government Code or any other applicable statute.
8.10 ATTORNEYS' FEES. Pursuant to § 271.159 of the Texas Local Government
Code, the prevailing party in a claim arising out of or to enforce this Agreement shall be entitled
to recover from the other party its reasonable and necessary attorneys' fees. This provision
specifically applies to but is not limited to judgments awarding damages, court orders compelling
performance, and arbitrator decisions pursuant to Section 8.07 herein.
8.11 DELEGATION OF AUTHORITY. The Parties agree that the dispute
resolution procedures set forth herein are not intended to unlawfully delegate the ratemaking or
other legislative authority of any party to this Agreement. Instead, the purpose of the dispute
resolution provisions is to provide each party an opportunity to appeal to an independent third
party for a determination as to whether the non -appealing party has acted in accordance with the
terms and conditions of this Agreement. In the event of binding arbitration, it is the parties'
mutual intent that such arbitration determine whether the parties have acted in accordance with
the terms of this Agreement, and not to delegate the performance of any duties hereunder to such
arbitrator. Each party agrees to take such actions as soon as practicable to comply with the
arbitrator's decision.
IX.
EFFECTIVE DATE AND TERM OF AGREEMENT
9.01 EFFECTIVE DATE. This Agreement shall become effective upon the closing
date of the sale of the System to Round Rock. This Agreement shall constitute the sole and only
contract between the District and Round Rock regarding Wastewater disposal services and the
District hereby recognizes and affirms its responsibility to make the payments required
hereunder.
9.02 TERM OF AGREEMENT. This Agreement shall continue in force and effect
from the effective date hereof until December 31, 2050, or any date thereafter for which the
Master Contract is/are extended. Upon expiration of this Agreement, Round Rock agrees to
provide the District an opportunity to enter into a wholesale wastewater service agreement on the
same general terms and conditions available to other wholesale customers of Round Rock;
provided, however, that such agreement shall reflect and provide credit for the costs of any
System Components and capacity utilized by Round Rock that have been funded by the District
as of said date.
23
IN WITNESS WHEREOF, the parties hereto acting under authority of their respective governing
bodies have caused this Agreement to be duly executed in several counterparts, each of which
shall constitute an original, all of the 3O day of() 4cjc cv- , 2009.
THE CITY OF ROUND ROCK
By:
Name: Alan McGraw
Title: Mayor
FERN BLUE MUNICIPAL UTILITY DISTRICT
By
Name: Patrick Savarese
Title: President, Board of Directors
ATTEST:
By: 31,41411,-
Name: G P1�� t l4Q
Title:
ATTEST:
By: ,! 4 f''1*-
Na Toss= i�N �` 77E/1/4, -/e
Title: 54ier_''4 K ve2,1,?O D i = a.Pr<Tir„75-
vi)
(SIGNATURE PAGE TO WASTEWATER SERVICE AGREEMENT)
24
LIST OF EXHIBITS
Exhibit A District Capital Charge
Exhibit B District Contractual Flows
Exhibit C Points of Entry for the System
Exhibit D List of Inadmissible Wastes
Exhibit E Reserved Capacities
Exhibit F District Service Area
Exhibit G Description of System Components
Exhibit H Winter Averaging Methodology
Exhibit I District Surplus Capacity
Exhibit J Purchase Agreement
25
EXHIBIT A
District Capital Charge
26
City of Round Rock, Texas
$2,105,000 Utility System Revenue Bonds, Series 2009
(Wastewater Repurchase)
Preliminary; FBMUD Portion Only
Sources & Uses
Dated 12/01/2009 1 Delivered 12/01/2009
Sources Of Funds
Par Amount of Bonds
Total Sources
$2,105,000.00
$2,105,000.00
Uses Of Funds
Deposit to Project Construction Fund 2,105,000.00
Total Uses 52,105,000.00
09 RR VWV Revs 10-19 FBMUD I SINGLE PURPOSE 1 10/19/2009 1 3:07 PM
Specialized Public Finance Inc.
Austin, Texas
EXHIBIT
Page 1 of 2
City of Round Rock, Texas
$2,105,000 Utility System Revenue Bonds, Series 2009
(Wastewater Repurchase)
Preliminary; FBMUD Portion Only
Debt Service Schedule
Date Principal Coupon
Interest
Total P+I
09/30/2010 115,000.00 4.750%
70,546.74
185,546.74
09/30/2011 120,000.00 4.750%
94,525.00
214,525.00
09/30/2012 130,000.00 4.750%
88,825.00
218,825.00
09/30/2013 140,000.00 4.750%
82,650.00
222,650.00
09/30/2014 160,000.00 4.750%
76,000.00
236,000.00
09/30/2015 175,000.00 4.750%
68,400.00
243,400.00
09/30/2016 65,000.00 4.750%
60,087.50
125,087.50
09/30/2017 65,000.00 4.750%
57,000.00
122,000.00
09/30/2018 65,000.00 4.750%
53,912.50
118,912.50
09/30/2019 70,000.00 4.750%
50,825.00
120,825.00
09/30/2020 70,000.00 4.750%
47,500.00
117,500.00
09/30/2021 70,000.00 4.750%
44,175.00
114,175.00
09/30/2022 75,000.00 4.750%
40,850.00
115,850.00
09/30/2023 50,000.00 4.750%
37,287.50
87,287.50
09/30/2024 50,000.00 4.750%
34,912.50
84,912.50
09/30/2025 55,000.00 4.750%
32,537.50
87,537.50
09/30/2026 55,000.00 4.750%
29,925.00
84,925.00
09/30/2027 40,000.00 4.750%
27,312.50
67,312.50
09/30/2028 40,000.00 4.750%
25,412.50
65,412.50
09/30/2029 45,000.00 4.750%
23,512.50
68,512.50
09/30/2030 45,000.00 4.750%
21,375.00
66,375.00
09/30/2031 50,000.00 4.750%
19,237.50
69,237.50
09/30/2032 50,000.00 4.750%
16,862.50
66,862.50
09/30/2033 55,000.00 4.750%
14,487.50
69,487.50
09/30/2034 55,000.00 4.750%
11,875.00
66,875.00
09/30/2035 60,000.00 4.750%
9,262.50
69,262.50
09/30/2036 60,000.00 4.750%
6,412.50
66,412.50
09/30/2037 65,000.00 4.750%
3,562.50
68,562.50
09/30/2038 5,000.00 4.750%
475.00
5,475.00
09/30/2039 5,000.00 4.750%
237.50
5,237.50
Total $2,105,000.00 -
$1,149,984.24
$3,254,984.24
Yield Statistics
Bond Year Dollars
$24,210.19
Average Life
11.501 Years
Average Coupon
4.7500000%
Net Interest Cost (NIC)
4.7500000%
True Interest Cost (TIC)
4.7479988%
Bond Yield for Arbitrage Purposes
4.7479988%
All Inclusive Cost (AIC)
4.7479988%
IRS Form 8038
Net Interest Cost
4.7500000%
Weighted Average Maturity
11.501 Years
09 RR WIN Revs 10-19 FBMUD 1 SINGLE PURPOSE 1 10/19/2009 1 3:07 PM
S•ecialized Public Finance Inc.
EXHIBIT
11A1�
Page 2 of 2
EXHIBIT B
District Contractual Flows
27
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71
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0
44 �30
1
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Allocator (in %)
0
000
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kr) co cn
t� .--1 N
0
6
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00
0
NO O o
0
N R
o M
GPCD = Gallons Per Capita per Day
1
2
a
EXHIBIT
EXHIBIT C
Point(s) of Entry for the System
28
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EXHIBIT D
List of Inadmissible Wastes
29
EXHIBIT D
to the
SUBREGIONAL WASTEWATER DISPOSAL CONTRACT
BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
August, 2000
LIST OF INADMISSIBLE WASTES
. • P' . - 1 . • .1 $, ara-Ai- • .
Contracts between the Brazos River Authority ("BRA"), the .. • '. orado River Authority
("LCRA"), the Brushy Creek Municipal U ' nct ("Brushy Creek") and the Fern Bluff
Municipal Utility District ("Fe
.• : I '), the following List of Inadmissible Wastes specifying
materials that . • - . - • ischarged to the sewer system and concentrations for substances which
sho - of .e exceeded in discharges to the system, is promulgated by the BRA as of August,
The following list constitutes the pollutant allocations and local limits established under the Brushy
Creek Regional Wastewater System Pretreatment Program specifying both numerical concentration
limits and prohibited substances for discharge to the System of toxic or regulated pollutants which
could cause interference with the operation of the treatment plant or cause a violation of the
BRA/LCRA's State or Federal discharge permit provisions. Under the provisions of Section
4.04, each Subregional Customer agrees to limit discharges to the System in accordance with the
following list:
Prohibited discharges include:
1. Wastewater having a temperature that would result in the total combined influent to the
treatment plant to exceed a temperature of 104 degrees Fahrenheit or 32.2 degrees Celsius.
2. Wastewater having a pH value lower than 5.0 or higher than 10.5 or which will cause
structural damage to the System.
3. Wastewater containing gasoline, benzene, naphtha, fuel oil, or other flammable or
explosive liquids, solids, gases, or any material that will result in the presence of toxic
gases, vapors or fumes within the System in quantities which may cause acute worker
health and safety problems.
4. Wastewater containing oil and grease or any grease, fats, waxes, oil, plastic or other
substances that will solidify or become discernibly viscous at any temperature between 32
degrees Fahrenheit and 90 degrees Fahrenheit so as to cause obstruction in the collection
system or at the treatment plant.
5. Wastewater with a radioactive content greater than allowable by applicable provisions of
the Texas Radiation Control Act, Article 4590 (0, Revised Civil Statutes of Texas, and
Texas Regulations for Control of Radiation issued thereunder.
6. Wastewater with a dissolved hydrogen sulfide concentration greater than 1.0 milligrams
per liter.
7 Wastewater containing corrosive constituents, that have a damaging or corrosive effect on
system components.
8. Any hazardous wastes prohibited by regulatory agencies.
9. Any trucked or hauled pollutants except at discharge points designated by the BRA and
with the written consent of the Subregional Customer or BRA.
10. Wastewater, which alone or in conjunction with other wastewater, causes the wastewater
entering any entry point into the system to exceed a five-day Biochemical Oxygen Demand
(BOD), concentration of 300 milligrams per liter or a Total Suspended Solids (TSS),
concentration of 400 milligrams per liter, shall be subject to surcharge on the basis of
actual increased operating costs so long as the pollutant is not causing interference with the
operation of the BRA/LCRA's State or Federal discharge permit provisions, and as long
as said pollutants are deemed acceptable by the BRA. BRA shall determine the cost of
treatment for pollutants received from all Customers and Subregional Customers and
determine additional treatment costs for excessive pollutants to be surcharged.
11. Wastewater with concentrations of toxic pollutants, including heavy metals and other
pollutants designated under the System Pretreatment Program, which will alone or in
conjunction with other wastewater cause the treatment plant influent to contain in excess
of:
Pollutant
System Headworks Limit
24 hour Composite
lbs/day !mg/1)
Cadmium 24.6864 0.2
Chloroform 493.7280 4.0
Chromium (Total) 2,098.3440 17.0
Copper 432.0120 3.5
Ethyl Benzene 1,974.9120 16.0
Lead 61.7160 0.5
Naphthalene 1,851.4800 15.0
Nickel 555.4440 4.5
Silver 8.6402 0.07
Tetrachloroethylene 617.1600 5.0
Toluene 1,728.0480 14.0
Zinc 469.0416 3.8
2
EXHIBIT
nDn
Page 2 of 3
12. The combined volume of all wastewater discharged by the Subregional Customers shall
not contain the following listed pollutants in excess of the listed loading without prior
written approval from the BRA.
Pollutant Pollutant Allocation in lbs/day
Brushy Fern
Creek Bluff LCRA
Cadmium 2.9690 1.0342 4.0032
Chloroform 59.3808 20.6832 80.0640
Chromium (Total) 252.3684 87.9036 340.2720
Copper 51.9582 18.0978 70.0560
Ethyl Benzene 237.5232 82.7328 320.2560
Lead 7.4226 2.5854 10.0080
Naphthalene 222.6780 77.5620 300.2400
Nickel 66.8034 23.2686 90.0720
Silver 1.0392 0.3620 1.4011
Tetrachloroethylene 74.2260 25.8540 100.0800
Toluene 207.8328 72.3912 280.2240
Zinc 56.4118 196490 76.0608
The BRA will periodically monitor for those pollutants at selected Subregional Customer's
Points of Entry. Should the analysis indicate any of the pollutants listed are approaching
or exceeding the System Head Works Limit, the Subregional Customer(s) shall determine
the source of the pollutant and require the generator(s) to reduce or cease discharge of the
pollutant and/or commence monitoring of the pollutant as required in the Brushy Creek
Regional Wastewater System Pretreatment Program.
3
EXHIBIT
Page 3 of 3
EXHIBIT E
Reserved Capacities
30
Capacity Reservations in Brushy Creek Regional Wastewater System
System Component
Node
From
To
Cedar
Park
Austin
Round
Rock
Brushy
Creek
MUD
Fern Bluff
MUD
Brushy Creek Interceptor - Upstream Collection System
A C1-30 C1-17
B C1-17 C2-31
C C2-31 C2-23
D C2-23 C2-16
E C2-16 C2-9
F C2-9 C2-1 B
G C2 -1B C3-22
H C3-22 C3-18
I C3-18 C3-13
J C3-13 C3-1
100.00%
100.00%
90.78%
90.90%
87.30%
86.11%
83.38%
87.16%
86.09%
82.66%
0.00%
0.00%
9.22%
9.10%
12.70%
13.89%
16.62%
12.84%
12.68%
12.18%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.31%
1.25%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
3.02%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.92%
0.89%
Brushy Creek Interceptor - Downstream Collection System
K C3-1 C20-28
L C20-28 C20-8
M C20-8 C21-1
N C21-1 C6 -12A
O C6 -12A C6-1
P C6-1 C9-1
O C9-1 C6A-21
R C6A-21 C6A-12
S C6A-12 C6A-1
72.73%
71.88%
45.23%
40.27%
38.84%
35.16%
34.17%
33.26%
32.61%
10.73%
10.60%
35.60%
31.71%
30.59%
27.73%
26.94%
26.25%
25.72%
11.40%
12.43%
12.02%
21.09%
23.86%
30.96%
32.91 %
34.65%
35.93%
2.73%
2.70%
5.50%
5.45%
5.28%
4.83%
4.70%
4.59%
4.51%
2.41%
2.39%
1.64%
1.48%
1.43%
1.32%
1.28%
1.25%
1.23%
Onion Creek Interceptor
0.00%
0.00%
81.63%
18.37%
0.00%
Onion Creek Relief Interceptor
0.00%
0.00%
81.63%
18.37%
0.00%
Southwest Interceptor
0.00%
44.05%
55.95%
0.00%
0.00%
South Interceptor
0.00%
44.05%
55.95%
0.00%
0.00%
Lake Creek Interceptor
0.00%
44.05%
55.95%
0.00%
0.00%
Treatment Facilities
Percent of Treatment Facilities
Capacity
14.61%
3.43%
72.17%
7.55%
2.24%
Avg Daily Flow Capacity
ThroughTreatment Facilities in MGD
3.58
0.84
17.68
1.85
0.55
Total Plant Capacity in MGD
24.50
1
a
s
EXHIBIT
"E"
EXHIBIT F
District Service Area
31
a
EXHIBIT
"F.”
Page 1 of 3
_ 01/ .7iJ i2:IJ 5:2-855-4255 GE"GRGTWn TITLE PLAN; PAGE
• ' Field Notes describing 20.02 acres of 'land out of and a part of
the John H. Dillard Survey, situated in Williamson County, Texas,
aid 20.02 acre tract being mare particularly described as being a.
nurtlon of that certain 22.64.a,cres tract of land conveyed to Carl
`• 11s, et ux by deed of redord.� iii Volume 707,,Tage Z5O of the
'Williamson County, Texas. Deed.`Recdrds:; said .29,02 acre tract being
more fully described by metes and b�ounds:gs follows;
BEGINNING at an iron pin found at a fence corner at the north-
west corner of said 22.64 acre tract for the northwest corner of
the tract herein described, said point also being the southwest
corner of Lot 98 Great Oaks Subdivision, of record in Cabinet B,
Slides 373-381 of the Williamson County, Texas Plat Records;
THENCE with the fence along a north line of said 22.64 acre
tract, same being the south linos of said Lot 98 and Lot 99 of
said subdiv'.sion, N 70°-59'1I 633.50 foet to a nail found in a fence
corner post at the northwest corner of that certain 2.59 acro tract
or lead described in u deed of record in Volume 298, Page 42 of
the Williamson County, Texas Deed of Trust records, for the most
northerly northeast corner of the tract herein described;
TIIBNCE with the.west line of said 2.59 acre tract the following
two (2) courses;
1. +S 190-04'B 619.63 feet to a nail found at a fence corner post;
2. 1.. 18°-59'E 285.43 feet to a steel pin set at the southwest corner
cif said 2.59 acre tract for an interior corner of the tract herein
described;
THENCE with the south line of said 2.59 acre tract N 70°-59'B
121.52 feet to a steel pin set at the beginning of a curve to the
left whose .elements are: central angle OS° -06'; tangent, of 122.48
f' -et; radius of 2750.07 feet; arc distance of 244.79 feet, and
whose long chord bears N 68°-26'B a distance of 244.71 foot to an
iron pin found at the southeast corner of said 2.59 acro tract, at
the end of Oak Ridge Drive, for tho most easterly northeast corner
01 the tract•horein described, said point also being at the south-
west corner of Lot 5 Block 5 Great Oaks Subdivision Section II, as
r•'cordod in Cabinet C, Slides 129-132 of tho Williamson County,
Texas Plat Records;
d
50.20IIcrossing
toaniironhe pinnfoundsatdthekRidge northwesticorner9ofOLet
1 Block 6 of said Great Oaks Subdivision Section II, same being
the most easterly southeast corner of said 22.64 acre tract, for
the most easterly southeast corner of the tract herein described,
sn.lcl point also being the northeast corner of that certain 2.30
ncro tract of land described in a deed of record in Volume 239,
Page 91 of the Williamson County, Texas Deed of Trust Records;
THENCE leaving said Oak Ridge DriVe and with a south line of
snid 22.64 ncro tract, same being tho north line of said 2.30 acre
tract, S 65°-53'W 295.85 feet to a steel pin set at an interior
corner of said 22.64 acre tract, same being the northwest corner
of said 2.30 acre tract, for an interior corner of the tract herein
described; _ -
t+
THENCE with an east line of said 22.64 acre tract, same being
the west lino of said 2.30 acre tract S Z1° -47'B 348.41 feet to
n point in the approximate center of Brushy Creek, at the most
:southerly southeast corner of said 22.64 acre tract, sumo being
the southwest corner of said 2.30 acre tract for the most south-
erly southeast corner of the tract heroin described;
THENCE with the approximate centerline of said creek S 73°-7I7'W
722.30 feet to a point at the southwest corner of said 22.64 acre
tract for Iio southwest corner of the tract•horein described;
THENCE leaving said creek and with the west line of this survey
the following three (3) courses;
1. N 15'-59'11 65.74 foot to an iron pin found at a fence corner;
2. N 19°-22'W, with said fence, 332.03 feet to an iron pin found;
S. .' 19°-0$'W, with said fence, 889.90 feet to the place of
BEGINNING containing 20.02 acres of land.
&ORBIT "A"
EXHIBIT
rrF.tc
•
1
Page 2 of 3
Ivie Tract
•
le
j ...i i;: v:: 'v.:. i...w1
.1.-p ADOI CAP 0r TEx NMT. 770
`a MIs11x. TEXAS 70759 •
PAO'I( (5'8 31I-RSFT
SURVEY PLAT OF;
1'
20.02 ACRES OF HAND OUT OF THE JOHN H. DILLARD SURVEY (A-179)
IN WILLIAMSON COUNTY, TEXAS, AS RECORDED IN VOLUME 1070,
PAGE 15, WILLIAMSON COUNTY DEED RECORDS
.01
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3.
THREE JOINT VENTURE N .CIA • PN"`0' \
1070/15 Tt< • TPS 1tWy,1 , S1g0 nE
0,,.•. 9. ' 5'''.. Olt
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tr 1L6S 861150 - P -
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IGRACY TITLE CO.
Cl 99010383
LEGEND
• 1/2' STEEL PIN FOUND
o 1/2' SEUL PN SET
O i STEEL PIPE FOUND
• 430 NAIL FOUND
D.L. WILDING SE -TRACK UNE
D.E. DRAINAGE CASEMENT
P.U.E. PURUC UTILITY EASEMENT
--1- OVERHEAD ELECTRIC UNE
-V- FENCE
SCALE 1'..150'
GEARING BASIS IS
DEED (1070/15)
ALL COURSES ARE
RECORD.
TE"`As-mon
sc
GAR _v+F 0. s co_ i ;?/za91'
--' ryr(LNE LSM1. IO {DHE S1M r
04.17 1.1101- 01 100-WM EL00t^
0.00 OSOO CO RAC M00411101C0330 C(0'VIDr.
k 1014 11
012
N155�11�
6S•
TO CJTF::Y TITLE CO.. S001,L1221 TITLE GUAR/NT CO.. 3 ACINI VE7:P:RE.
PUP DIVESTMENTS. L.F.. Art. AYr LENDER
100 DirECT0/ED MES i'222)r 21:10:11 T1111 Pl. So0'9ry 9L3 1119E OM TNT 000.1010 Of THE PRG-
FITT LECIILT D!.•CRICIC NCI -r0.1 .041 G OCTET!. .Ii T••.: 1:•r:•. lr( 00 G7rF741...7,r4, commas,
T1100TPEi: 01 eq,+,{, R'270i1 S'• i160 r':::1.-::. r.:'i•: .•..,•l: •I.:Ir^.:t'•••:_ 'T[.i :0\TuCNFS. NYRE
1,rx1T• TC113 6R ,01,0 IN 11217. T4'77 A, 314.51 .1.11 '.:..2 24.07717 1105 ACCLSS 10
010 TROY A 5202.:70 L'{:•ur: r7•;0MT AS •4-401' i. :0.:171 12.0 H.-; 2000ET PIER 04 EXCEEDS
.NCC CURa20.1 T11001110 .01 !71.11::9 1:1 11.7 1E111012(1• !r'r1 .20..l 22:17 2101(7212.
SATO THIS : DAT Or J.c;:1 1.17
I C00ttC 1., Of IrC:xu E +0 RElROKI
v T'••T• I'....r} ... 111
•�911yi
ecem
.t.
ELECTRIC 0..SMT. TO 7 P.a(. (466/132)
DOES NOT APPLY TO THIS TRAC1
1102 SURVEY REIICCT5 AND 17. MATEO TO 115410 EVIDENCE Cr
EASEMENTS ON THE GROUND AND THOSE RECORDED CASEMENTS USTLD
N SCHEDULE •D' OF 05002 T.1LE CO C^_101111+E10 99010363
STUART N. WATSON. RS20017D
rRP11 LAND 01120070130.
715.00 UC7511( 0011).017 4730
EXHIBIT G
Description of System Components
32
Exhibit
Brushy Creek Regional Wastewater System Components
Interceptors
Brushy Creek
Onion Creek
Onion Creek Relief
Southwest
South
Lake Creek
Treatment Facilities
West Wastewater Treatment Plant (East end of Austin Street in Round Rock)
East Wastewater Treatment Plant (3939 Palm Valley Boulevard in Round Rock)
EXHIBIT
EXHIBIT II
Winter Averaging Methodology
33
BRUSHY CREEK REGIONAL WASTEWATER SYSTEM (BCR
WINTER WATER AVERAGING CALCULATION
September 16, 2009
Introduction / Background
The Cities of Austin, Cedar Park, and Round Rock are in the process of acquiring the Brushy
Creek Regional Wastewater System (BCRWWS) from the Lower Colorado River Authority
(LCRA). This system includes more than 13 miles of wastewater interceptor ranging in size
from 36" to 84" in diameter and two wastewater treatment plants (WWTPs), including a 21.5
MGD Regional WWTP. Located entirely in Williamson County, the BCRWWS currently serves
the wastewater needs of the referenced cities as they fall within the Brushy Creek Basin, as well
as those of the Fern Bluff and Brushy Creek MUDs. Future plans include adding the flow from
the City of Leander.
Customers of the system currently operate under the terms of a 'Wastewater Disposal Contract"
with the LCRA/Brazos River Authority Alliance dated October 1, 2000, under which the terms of
the annual cost allocation of "Operation and Maintenance Expense Requirements" are currently
dictated. As Austin, Cedar Park, and Round Rock are in the process of drafting their own
contract terms and conditions, they expressed the desire to create a uniform methodology of
flow measurement and subsequent language appropriate to this O&M section of the contract.
Recent discussions have considered using a system of "Winter Water Averaging" to establish
base dry weather wastewater flows while other methods, including system/point of entry
metering and flow monitoring, may be established to identify and refine Infiltration & Inflow (I&I)
contribution.
Scope
K Friese & Associates, Inc. (KFA) was authorized to work with each BCRWWS participant
city/MUD to gather information for the purpose of creating a uniform methodology for "winter
water averaging". As a part of this initial scope, KFA also evaluated initial system meter
locations, and prepared a suggested format for a one page quarterly report on flow monitoring.
Future work efforts are anticipated to include actual meter installation and I&I Analysis.
Winter Water Averaging — Data Collection and Analysis
KFA developed an 11 item questionnaire intended to encompass the major factors necessary
for a complete winter water averaging program. The questionnaire was then emailed to the
system participants, including the City of Leander. Each participant submitted a completed
questionnaire back to KFA. The responses were tabulated and used to develop a
recommended policy for a common analysis — based on attempts to utilize as much of the
collected data and methodologies currently in place by each individual participant. The Winter
Brushy Creek Regional Wastewater System (BCRWWS)
Winter Water Averaging Calculation
Page 2of3
Water Averaging Summary spreadsheet and Winter Water Time Period Analysis are attached
(Exhibits 1 and 2).
Proposed Methodology for Billing of System O&M
For accounting for wastewater flows from each customer, the Participants shall use "winter
averaging of water consumption" for connections as described herein. Winter average of water
consumption shall mean:
A. All Accounts Except for Those Listed Below
1. The following methodology:
a. Use actual water usage of each Participant's accounts for all cycles read for 2
consecutive billing periods, with the earliest date being December 1st
b. Average the water readings for the 2 periods (based on the average daily usage) for
each residential user and create a "winter month average" to be applied each billing
cycle.
c. Bill wastewater usage based upon the winter month average, assuming 100% return
flow.
B. Metered Irrigation Accounts
1. Use wastewater meter readings, if available, or
2. If the Participant's customer's user has a separately metered irrigation system, use the
above methodology on the actual domestic water usage.
C. Wastewater Metered (Wholesale) Accounts
1. Any Participant customers with separate wastewater meters (wholesale accounts) will be
accounted for using actual meter readings and 100% return flow.
D. City of Cedar Park Water Reclamation Facility Bypass
1. For the City of Cedar Park Water Reclamation Facility bypass, a meter shall be installed
in the Regional System downstream of the facility and upstream of the first point -of -entry
during the 2 consecutive billing periods being used for winter water averaging. At the
conclusion of the metering period, the following procedure shall be used to derive the
winter month average to be billed for the bypass flow:
a. The totalized bypass flow at the conclusion of the 2 consecutive billing periods shall
be divided by the sum of the totalized bypass flow and the totalized Water
Reclamation Facility effluent flow from the same period. This value is the percentage
of total flow to the Water Reclamation Facility that the bypass flow represents.
K# F
& ASSOC
EXHIBIT
nHn
Page 2 of 6
Brushy Creek Regional Wastewater System (BCRWWS)
Winter Water Averaging Calculation
Page3of3
b. The bypass flow percentage calculated in (a.) shall then be multiplied by the total
number of Living Unit Equivalencies contributing to the total influent flow to the Water
Reclamation Facility. The calculated value is considered to represent the number of
Living Unit Equivalencies contributing the bypass flow.
c. The winter month average calculated under A.1. above will then be applied to the
number of bypass flow Living Unit Equivalencies calculated in (b.) to derive the
wastewater contribution to the Regional System to be billed.
E. Special Exceptions
1. Each Participant acknowledges and submits to the other Participants for review and
consideration, any "Special Exceptions" to the agreed methodology. Exceptions may
include, but are not limited to, cooling tower credit, and/or one time "extraordinary
events". Wholesale agreements with MUDs which may be addressed in the
methodology above are not considered "Special Exceptions".
Meter Locations
In a previous work effort, KFA evaluated data gathered from the existing system meters. Based
on the quality of data obtained at these locations, combined with the goal of systematically
identifying major I&I contributors, we identified six locations for the first round of metering.
These suggested locations are depicted on the attached exhibit.
Suggested Quarterly Report/Executive Summary Format
Once meters have been installed and data is gathered, KFA will perform analysis and submit a
quarterly report to the participants for review. KFA anticipates each quarterly report to include
the results of any analysis as well as a one-page "Executive Summary". At this time, we
envision the Executive Summary will address the following:
• Data Gathering Period
• General Quality of the Data (discussion and scatter graph)
• Rain Events in the Service Area (description, number, intensity, location)
• Peak flow as a % of pipe capacity at each meter site
• Summary of Analysis Performed and Observations
• Recommended Actions for the Upcoming Quarter (e.g., collect more data at same
location, move meter to another location, etc.)
K# F EXHIBIT
& Assoc! ��Htt
Page 3 of 6
Leander I Round Rock 1 Recommendation
Utilize data from two months
which contain the most
overlap of data collection -
water usage with the earliest
date of Dec. lst.
Utilize data from two months
which contain the most
overlap of data collection -
water usage with the earliest
date of Dec 1st
Utilize data from two months
which contain the most
overlap of data collection -
water usage with the earliest
Hata nf .- let
1 C
i
i
Utilize winter water averaging
for systems with separate
vnnatinn .00mre
7
- Q
i Z
C
O
O
X
W
rn
0
Y
U
Q
3 -month winter average; because
we have 4 zones from November -
February
4 billing cycles- November 1`t thru
February 29th_
N
L
C
O
E
..7-C
o
O
Winter averaging on domestic
meter
Residential, residential irrigation,
commercial, commercial irrigation,
apartment, government, industrial,
MUD wholesale meters, city
accounts
Dell and Texas State get credit for
cooling tower evaporative losses.
For various MUD wholesale
accounts, each month we take their
water usage, subtract any
dedicated irrigation meters from
their water usage, then multiply this
amount by 70% to determine the
MUDs wholesale wastewater
amount to bill for the month.
December through February
One cycle 5th through 10th of
each month
All three months
0
O
Actual domestic water usage
Residential, commercial, multi.
family, apartments, municipal,
golf course, school
Q
Z
EDo
m0
LL
mid-Novemebr
through mid-
February
One cycle read on
the 15th
Average of three
months
Q
Irrigation only
meters are not
subject to
wastewater billing
Residential, school,
HOA, Community
Center
Z
Cedar Park
December through February
4: December 1 to March 1;
December 8 to March 8;
November 15 to February 15;
November 22 to February 22
All data used
100% of winter monthly
average
Actual domestic water usage
on a gallon for gallon basis
Residential, multi -family, non-
residential, wholesale
evaporative loss - about 70
List any special exceptions customers; wastewater only
you have for winter water customers - about 350; wells -
averaging (individual or group same as wastewater only
of users), the number of customers; 'One-time'
customers in each category, extraordinary events - minimal credit allowed if customer proves
and how each category is #; leaks during winter WWA they filled a new pool or had a Wastewater only customers -
adjusted. period - estimate 500-1000 leak based on city wide average
BCMUD
November through February
2 per month, reads from last 3
days of the month are billed on
the 2nd reads from 13th - 15th
are billed on 17th
all 4 -months data
o
O
y
N
r
Residential, multi -family,
commercial, irrigation (water only)
C
Ne
c
a
3 consecutive months
between designated dates
from mid-November to mid-
March
20 billing cycles (4 of which
were determined by COA staff
to be those which contribute
to the BCRWWS)
Weighted average of the two
months with the lowest daily
water use
O
O
Residential - Wastewater
averaging, Commercial and
multi -family - gallon for gallon;
billed at the same volume as
domestic water usage
Single family, multifamily,
commercial, large
volume/industrial, golf course,
wholesale
Question
Over what time period is
water usage analyzed for
winter water averaging?
How many billing cycles does
the utility have and what are
the meter read dates for each
billing cycle during the
wastewater averaging period?
What portion of the data
collected is used to determine
the winter water average?
Is 100% of the winter month
average used for wastewater
billing or is a return flow
percentage assumed? If a
return flow percentage is
assumed, what percentage?
For customers with separate
irrigation meters, is winter
water averaging used or is
wastewater billed based on
actual domestic water usage
on a gallon for gallon basis?
What are the account
categories used for billing?
EXHIBIT
tie
Page 4 of 6
Recommendation
Round Rock
z
0
m
co
r3.1
z
6,000 Gallons
z
0
U
0
O
c
m
0
0
cm
0
Z
co
0
To
rn
0
0
c
0
5,000 gallons default
0
o N 3
0 0 = 0 U
vo E ti E m o
y _ — E
05
E 3 'n coi v a v
o m @ (0
>. 3 3°1 a 3 E
9 7 0 m N
02g1"
122 i
(p
EXHIBIT
t,Hn
Page 5 of 6
EXHIBIT 2. BILLING PERIODS REPORTED BY UTILITIES FOR WINTER WATER USAGE
Tue
Wed
Thu
Ft.
Sal
Sun
Mon
Tue
Wed
Thu
Fn
sal
Man
Tue
Wed
Thu
Fri
Sar
Mon
Mw
Tue
Wed
Thu
Ftl
.a
Son
Tion
Tue
Wed
Thu
312
12/3
12/4
12/5
1.6
1222
12/9
13/9
12/10
12/11
m12
12/13
229
13/15
12/16 11.131
1207
13116
1209
1244
1201
1202
12/23
12/24
12/25
12a6
1.22
12/29
12129
12/30
2/31
1/1
Fn 112
Sal 113
Sun 111
Mon 15
Thu
Fri
Sal
bun
Mon
Tue
Wed
Thu
Fn1
Sun
TMon
1116
1/12
105
19
1n_0
Thu 122
Fn ia3
Sal 101
Sin 105
mon 46
Tue 1/37
Wed 10_6
Thu
Fn
Sal
Sun
Mon
Tue
Wed
Thu
Fn
Sal
Sun
Wan
Tue
Thu
Fn
Sar
Wee
Thu
Fn
91
Son
Mon
Tue
1129
1/30
1M
.1
2/2
215
216
29
2110
2/1
2113
2/14
]115
2116
2217
3na
2/10
220
221
n2
2124
Wed
Thu3/36
Sun
Mon
Tue
Wed
Thu
Sal
gin
Mon
Tue
Wed
Fe
Tnu
Sal
sun
Mon
2/25
2n_e
v1
30
.3
15
9g956511 I
1lT
35
]9
3110
111
3/1.
113
.14
3/15
3,16
Thu
Fn
Sal
Man
Tue
Thu
Sun
Mon
116
]/t5
J20
301
_1
r
L - 1
3122
3133
1.4
305
3/15
3127
- T -
—1
329
EXHIBIT
IIHII
Page 6 of 6
CITY OF AUSTIN
RC.MUD
CEDAR PARK
ROUND ROCK
104110ER
- FSMUO
.1
g
i
Se
Mon
Tuo
1111
110
110
_
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115
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-
--
H. -
-
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Thu
Fn
Sel
uo
"b
/7
116
11,;10
{
-
I -
.
.._
Tue
Wed
111
11/12
.
. I -
-
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_
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I
I
Thu
11/13
Fn
.9af...
Sun
- Yan
11/14
11113
11116
.121
.1,.
I
•
-
1
-
_
VEMBER
Tue
9
1111111111.=111111...Wed
I
11/19
'
hu
Sal
Sun
Mon
11/30Fn
11/21
.1122
a,---
a!
.
.
MINIMICE
Tue
11/25
Wed
11/26
Thu
1182
_
Fri
9r...
Sun
Mon
11126
...1149
11/30
12/1
1
- h
.
.
—
-
_
Tue
Wed
Thu
Ft.
Sal
Sun
Mon
Tue
Wed
Thu
Fn
sal
Man
Tue
Wed
Thu
Fri
Sar
Mon
Mw
Tue
Wed
Thu
Ftl
.a
Son
Tion
Tue
Wed
Thu
312
12/3
12/4
12/5
1.6
1222
12/9
13/9
12/10
12/11
m12
12/13
229
13/15
12/16 11.131
1207
13116
1209
1244
1201
1202
12/23
12/24
12/25
12a6
1.22
12/29
12129
12/30
2/31
1/1
Fn 112
Sal 113
Sun 111
Mon 15
Thu
Fri
Sal
bun
Mon
Tue
Wed
Thu
Fn1
Sun
TMon
1116
1/12
105
19
1n_0
Thu 122
Fn ia3
Sal 101
Sin 105
mon 46
Tue 1/37
Wed 10_6
Thu
Fn
Sal
Sun
Mon
Tue
Wed
Thu
Fn
Sal
Sun
Wan
Tue
Thu
Fn
Sar
Wee
Thu
Fn
91
Son
Mon
Tue
1129
1/30
1M
.1
2/2
215
216
29
2110
2/1
2113
2/14
]115
2116
2217
3na
2/10
220
221
n2
2124
Wed
Thu3/36
Sun
Mon
Tue
Wed
Thu
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gin
Mon
Tue
Wed
Fe
Tnu
Sal
sun
Mon
2/25
2n_e
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35
]9
3110
111
3/1.
113
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Thu
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Tue
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116
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301
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L - 1
3122
3133
1.4
305
3/15
3127
- T -
—1
329
EXHIBIT
IIHII
Page 6 of 6
EXHIBIT I
District Surplus Capacity
34
Exhibit I
Surplus Capacity in Brushy Creek Regional Wastewater System
System Component
Brushy Creek MUD
Surplus Capacity
Fern Bluff MUD
Surplus Capacity
Node
From
To
Brushy Creek Interceptor - Upstream Collection System
A
C1-26
C1-13
0.00%
0.00%
B
C1-13
C1-5
0.00%
0.00%
C
C1-5
C2-23
0.00%
0.00%
D
C2-23
C2-17
0.00%
0.00%
E
C2-17
C2-10
0.00%
0.00%
F
C2-10
C2-2
0.00%
0.00%
G
C2-2
C3-23
0.00%
0.00%
H
C3-23
C3-19
0.00%
0.00%
I
C3-19
C3-14
0.00%
0.31%
J
C3-14
C3-1
0.96%
0.29%
Brushy Creek Interceptor - Downstream Collection System
K
C3-1
C20A-1
0.77%
0.68%
L
C20A-1
C20-8
0.75%
0.67%
M
C20-8
C21-1
0.96%
0.29%
N
C21-1
C6-15
0.85%
0.23%
0
C6-15
C6-1
0.79%
0.21%
P
C6-1
C9-1
0.65%
0.18%
Q
C9-1
C6A-21
0.62%
0.17%
R
C6A-21
C6A-12
0.59%
0.16%
S
C6A-12
C6A-1
0.57%
0.15%
EXHIBIT
1
EXHIBIT J
Purchase Agreement
35
PURCHASE AGREEMENT
FOR THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
THIS PURCHASE AGREEMENT FOR THE BRUSHY CREEK REGIONAL
WASTEWATER SYSTEM (this "Agreement") by and between the LOWER COLORADO
RIVER AUTHORITY, a conservation and reclamation district and political subdivision of the
State of Texas ("LCRA") and the CITY OF ROUND ROCK, Texas, a home rule municipal
corporation ("Round Rock"), the CITY OF CEDAR PARK, TEXAS, a home rule municipal
corporation ("Cedar Park"), and the CITY OF AUSTIN, TEXAS, a home rule municipal
corporation ("Austin") (collectively referred to herein as the "Cities"), is made and entered into
effective the (O4` day of �/ , 2009, which is the date this
Agreement is executed by LCRA (the "Effective Date").
RECITALS
The Cities, LCRA, and the Brazos River Authority ("Brazos") entered into a
"Wastewater Disposal Contract" dated October 1, 2000 (the "Wastewater Disposal Contract")
for the design, acquisition, and construction of wastewater collection facilities, wastewater
treatment plant(s) and disposal facilities (the "System") and for Brazos' operation of the System.
A. LCRA owns the System.
B. The Cities have requested that LCRA sell the System to the Cities.
C. The LCRA Board of Directors has previously determined that the System is no
longer necessary, convenient, or of beneficial use to the business of LCRA.
D. The Purchase Price (defined herein) is reflective of a negotiated settlement for
sale of the System, based on the LCRA Debt (defined herein) plus a portion of fees due to LCRA
under the Wastewater Disposal Contract, and reflects the resolution of disputes between LCRA
and the Cities.
E. The Cities and LCRA obtained separate appraisals of the System, including but
not limited to, the Virchow Report defined below, and the actions to be taken by the Cities and
LCRA under this Agreement are authorized by, among other laws, section 791.026 of the Texas
Government Code and sections 272.001(b)(5) and 552.014 of the Texas Local Government
Code.
F_ LCRA hereby agrees to sell the System to the Cities under the terms and
conditions more particularly provided in this Agreement.
G. The Cities recognize that LCRA and the City of Leander ("Leander"), a home
rule corporation, had discussed Leander's intention to become a customer of the System on the
same terms and conditions as the other customers, and LCRA and the Cities supported such
intent. After the Cities purchase the System from LCRA pursuant to this Agreement, the Cities
shall provide Leander with the opportunity to become a joint owner of the System on terms and
conditions mutually agreeable to the Cities and Leander.
EXHIBIT
is
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth and
other good and valuable consideration, the parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE OF THE WASTEWATER SYSTEM ASSETS
Section 1.1 Transfer of Wastewater System Assets by LCRA. Subject and
pursuant to the terms and conditions set forth in this Agreement, on the Closing Date (as defined
below), LCRA shall transfer and convey the following assets, and the Cities shall purchase from
LCRA the following assets:
(a) Facilities.
(i) all of the wastewater treatment, collection, and disposal system
owned by LCRA, together with all improvements, structures, lateral lines, service
pumps, lift stations, air compressors, electrical equipment, vehicles, machines,
and other equipment and tangible assets listed on Schedule 1 of Exhibit A
attached hereto and incorporated herein for all purposes; and
(ii) any other tangible assets of LCRA, such as laboratory equipment,
office furniture, and equipment that are relevant and necessary for the Cities'
ownership and operation of the System (collectively the "Facilities").
A complete inventory ("Inventory") of the Facilities that are owned by LCRA and
necessary for the operation of the System shall be taken prior to the expiration of the
Review Period (defined below) by the Cities and LCRA. All items shown on the
Inventory shall constitute a part of the Facilities to be transferred to the Cities at Closing.
The Inventory will be updated at Closing to delete any items no longer owned by LCRA
as a result of normal operation and maintenance of the System and to add items
purchased by LCRA as a result of normal operation and maintenance of the System and
to be transferred to the Cities. The Facilities shall be transferred AS -IS with no
warranties, representations or guarantees, other than third -party warranties related to the
System to the extent same are assignable, as provided by Section 6.4.
(b) Intangible Assets. All contracts, leases, option rights, permits, certificates,
licenses, reimbursement rights, service agreements, deposits, warranties from vendors or
manufacturers or other third parties, regulatory correspondence, as -built plans and
specifications, engineering reports, files, records, information, data, and other intangible
assets of LCRA that are related to the ongoing operation and ownership of the
Wastewater System Assets, including but not limited to those more particularly described
on Schedule 2 of Exhibit A attached hereto and incorporated herein for all purposes
(collectively referred to herein as the "Intangible Assets"). Any files, records,
information or data that are privileged under the attorney-client privilege or privileged
under other law may be excluded from the Intangible Assets. LCRA shall cooperate with
the Cities to obtain all necessary approvals for the assignment of any intangible assets.
Notwithstanding the foregoing, the parties to this Agreement agree that the Wastewater
2
Disposal Contract and possibly other agreements as described in Section 6.9 shall be
terminated at Closing. The Intangible Assets shall be transferred AS -IS with no
warranties, representations or guarantees, other than third -party warranties related to the
System to the extent same are assignable, as provided by Section 6A.
(c) Property. All land and interests therein, including without limitation
contract rights, easements, licenses and rights-of-way owned or held by LCRA for the
installation, use and maintenance of, or otherwise associated with the Facilities, all of
which land and interests therein are more particularly described on Schedule 3 of Exhibit
A attached hereto and incorporated herein by reference for all purposes, together with all
and singular the rights, privileges, and appurtenances, if any, pertaining to said land and
interests therein, including any right, title, and interest of LCRA in and to adjacent
streets, alleys, or rights-of-way, together with any improvements, fixtures, and personal
property of LCRA situated on and attached to said land and interests therein (collectively
referred to herein as the "Property"). The Property shall be transferred "as -is" with no
warranties, representations or guarantees; provided, however, the conveyance shall be by
special warranty conveyance instrument.
The Facilities, Intangible Assets, and Property are collectively referred to herein as the
"Wastewater System Assets."
Section 1.2 Purchase Price. The Purchase Price (herein so called) for the
Wastewater System Assets shall be the total of the following amounts:
(a) Two Million Six -Hundred Thousand Dollars and no cents ($2,600,000.00);
(b) the amount necessary to defease, retire, and/or payoff the outstanding LCRA debt
and interest accrued thereon associated with the Wastewater System Assets (the "LCRA Debt");
(c) LCRA's reasonable and actual third -party expenses related to the defeasance,
retirement, and/or payoff of the LCRA Debt, not to exceed $50,000, for costs of LCRA bond/tax
counsel opinion(s) and related verification and escrow fees, and such amount shall not include
any costs associated with the LCRA staff or outside attorneys other than bond and/or tax opinion
counsel related to this transaction ("Third Party Expenses");
(d) third -party expenses incurred by LCRA for a phase one environmental site
assessment of the wastewater treatment plant tracts included in the Property, the cost of which
shall not exceed $10,000 ("ESA Expenses"); and
(e) an amount for the over- or under -recovery of the Annual Operation and
Maintenance Expense Requirement and the Annual Project Requirement under the Agreement
for the period from October 1, 2009, to the Closing Date ("FYID Over -/Under -Recovery").
LCRA agrees to provide the Cities with a copy of said phase one environmental site
assessment at Closing or within ten (10) days following receipt of same, whichever first occurs.
The amounts for items (b), (c), (d) and (e) shall total what is described herein as the Defeasance
Amount. Payment of Defeasance Amount of the Purchase Price at Closing shall be based on
3
estimates of the amounts required to defease, retire and/or payoff the long term debt and FY10
Over/Under Recovery and subject to true up requirements as set forth in the following section.
Section 1.3 Calculation, Estimates, and True Up of Defeasance Amount.
(a) LCRA Debt: The LCRA Debt associated with the Wastewater System Assets
includes the following:
(i) the LCRA debt allocable to the System, and installment purchase
obligations to acquire the Texas Water Development Board's (the
"TWDB") interest in, Contracts 20 and 21 Interceptor Line pursuant to the
Master Agreement between LCRA and the TWDB entered on or about
November 14, 2001 (the "TWDB Agreement");
(ii) the LCRA debt allocable to the Southwest Interceptor Line and Round
Rock South Interceptor Line pursuant to the Agreement for Acquisition of
Wastewater System Assets (Southwest Interceptor Line and Round Rock
South Interceptor Line) between Round Rock and LCRA entered on or
about July 1, 2001 ("Interceptors Agreement");
(iii) the LCRA debt allocable to the Williamson County Reuse Project;
(iv) other long-term tax-exempt debt related to the System; and
(iv) current outstanding LCRA commercial paper balance related to the
System and any additional commercial paper to be issued by LCRA prior
to December 4, 2009, to fund expenditures for capital improvements
contemplated by Exhibit C, less any coverage inuring collected and
applied, less any of the Capital Charge collected and used to reduce
outstanding principal and interest due through and until the Closing Date.
(b) Debt Defeasance Protocol. By September 23, 2009, LCRA will provide the
Cities and TWDB with a protocol for the aforesaid defeasance, retirement, and/or payoff of the
LCRA Debt, including the procedures for LCRA's purchase of securities to be escrowed and
selection of escrow and verification agents and opinion counsel. The protocol shall be designed
to maximize efficiency and ensure a transparent securities selection process.
(c) Estimate of Long -Term Debt. LCRA confirms that the total amount of the
outstanding LCRA Debt as of September 30, 2008, is incorporated into the report prepared by
Virchow, Krause and Associates for LCRA in the fall of 2008, (the "Virchow Report"), which
total amount was then estimated to be One Hundred Sixteen Million, Nine Hundred Ninety -
Seven Thousand, Eleven Dollars and 00/100 ($116,997,011.00). Upon execution of this
Agreement, LCRA agrees that the portion of the estimated Defeasance Amount related to retiring
long-term LCRA Debt (other than LCRA commercial paper associated with the System) is
$75,559,174.02, as shown in Exhibit B-1 or $74,801,858.02 as shown in Exhibit B-2 attached
hereto (dependent upon the call date to be determined by the TWDB prior to Closing for the debt
associated with the TWDB Agreement). LCRA agrees to provide the Cities on November 10,
2009 with an updated Exhibit B using the same format as shown in Exhibits B-1 and B-2 that
4
has been preverified by LCRA's verification agent as to LCRA escrow disbursement dates and
amounts and reflecting the final call date approved by the TWDB for debt associated with the
TWDB Agreement. LCRA acknowledges that the Cities will rely on the updated Exhibit B
delivered on November 10, 2009 in issuing debt necessary to pay the Purchase Price and
confirms that the updated Exhibit B delivered on November 10, 2009 will be true and correct in
all respects except for the estimated "interest earnings on escrow" as discussed in note (1).
LCRA shall provide a second updated Exhibit B on December 4, 2009 to the Cities that will
include a final estimate of the "interest earnings on escrow" and the Parties agree that the update
delivered on December 4, 2009 shall be included in the Defeasance Amount and Purchase Price
at Closing. Because the Purchase Price shall be net of "interest earnings on escrow," the amount
included in the Defeasance Amount and Purchase Price at Closing based on Exhibit B shall be
subject to an accounting after Closing based on the confirmed interest rate subscribed to by
LCRA in its purchase of securities after Closing to retire, defease, and/or payoff the LCRA Debt.
The Cities shall pay any difference owed to LCRA due to an overestimation of the final
estimated "interest earnings on escrow" included in the December 4, 2009 Exhibit B update and
the actual "interest earnings on escrow" no later than LCRA's settlement date on its purchase of
such securities, with such payment contingent upon LCRA's 48 hour advance written
notification to the Cities of the difference owed and its proposed settlement date. LCRA shall
pay to the Cities any difference owed to the Cities due to an underestimation of the final
estimated "interest earnings on escrow" no later than 10 business days after its settlement date on
its purchase of such securities.
(d) Estimate of FY10 Over/Under Recovery. The Parties agree that the current estimate of
the FY10 Over -/Under -Recovery is shown on Exhibit C, attached hereto. The Parties agree that
the estimate of the FY10 Over -/Under -Recovery (calculated consistent with Exhibit C) on
December 4, 2009, shall be included in the Defeasance Amount and Purchase Price at Closing.
The Parties further agree that all monthly payments from the Cities to LCRA for the Annual
Operation and Maintenance Expense Requirement and the Annual Project Requirement for
Fiscal Year 2010 as shown on Exhibit C shall be made on or prior to the Closing Date. The
FY10 Over -/Under Recovery shown on Exhibit C shall be subject to an accounting after the
Closing Date. LCRA shall prepare in writing an adjustment, using the same format as depicted
in Exhibit C, to the FY10 Over -/Under -Recovery to account for payments toward the Annual
Operation and Maintenance Expense Requirement and Annual Project Requirement as
compared to actual operation and maintenance expenses incurred by and actual principal and
interest payments made by LCRA during the period October 1, 2009, to the Closing Date.
LCRA shall provide the written accounting and adjustment to the Cities, and there will be a
payment by or payment to LCRA for the adjustment of the FY10 Over -/Under -Recovery.
Notwithstanding the foregoing, LCRA shall defer work during Fiscal Year 2010 on the projects
identified as being deferred pending Closing on Exhibit C. Any allocation of indirect operation
and maintenance expenses by LCRA as depicted on Exhibit C shall be consistent with the
allocation used in the development of the Annual Operation and Maintenance Expense
Requirement for Fiscal Year 2010. The payment by or to LCRA for the adjustment of the FY10
Over -/Under -Recovery shall be made on January 8, 2010. This Agreement shall survive the
Closing to the extent necessary to enforce the terms of this subsection (d).
5
(e) Updates to Defeasance Amount. LCRA agrees to provide the Cities with
updated estimates of the total Defeasance Amount on November 10, 2009 and again on
December 4, 2009. Any updated estimates of the final Defeasance Amount shall include, but not
be limited to:
(i) Updated information related to the long-term LCRA Debt as shown in
Exhibit B-1 and B-2 and as discussed above;
(ii) Updated information related to the FY10 Over/Under Recovery as shown
in Exhibit C and as discussed above;
(iii) Current outstanding LCRA commercial paper balance related to the
System;
(iv) Any additional LCRA commercial paper issued to fund expenditures for
capital improvements contemplated by Exhibit C, less any coverage
inuring collected and applied, less any of the Capital Charge collected and
used to reduce outstanding principal and interest due through and until the
Closing Date;
v) actual invoiced Third Party Expenses; and
vi) actual invoiced ESA Expenses.
(f) Allocation of Purchase Price. Except for the portions of the Purchase Price that
include the LCRA Debt allocable to the Interceptors Agreement and the Williamson County
Reuse Project, the Purchase Price shall be allocated among the three Cities as follows: Round
Rock — 68.45%; Cedar Park — 21.85%; and Austin — 9.70%. For the portions of the Purchase
Price that include the LCRA Debt allocable to the Interceptors Agreement and the Williamson
County Reuse Project, the allocations among the three Cities shall be as follows:
(i)
Interceptors Agreement: Round Rock — 55%, Austin — 45% and
Cedar Park — 0%;
(ii) Williamson County Reuse Project: 100% to Round Rock.
The final amount of each Cities' contribution to the Purchase Price shall be calculated in
conformance with the allocations provided in this subsection.
Section 1.4 Independent Consideration. Contemporaneously with the execution of this
Agreement, the Cities hereby deliver to LCRA, and LCRA hereby acknowledges the receipt of, a
check in the amount of TEN AND NO/100 DOLLARS ($10.00) ("Independent Contract
Consideration"), which amount the parties bargained for and agreed to as consideration for the
LCRA's grant to the Cities of the Cities' exclusive right to purchase the Wastewater System
Assets pursuant to the terms hereof and for LCRA's execution, delivery and performance of this
Agreement. This Independent Contract Consideration is in addition to and independent of any
other consideration or payment provided in this Agreement, is nonrefundable under any
circumstances, shall not be credited to the Purchase Price, and shall be retained by LCRA
notwithstanding any other provisions of this Agreement.
Section 1.5 Escrow Deposit. For the purpose of securing the performance of the Cites under
the terms of this Contract, Round Rock, Austin and Cedar Park will deliver to the Bank of New
York, care of Dorothy Miller (the "Escrow Agent") the sum of Four Million, Four Hundred
6
Forty-three Thousand, Twenty Dollars and no cents ($4,443,020.00) (the "Escrow Deposit"),
which shall be allocated between the three cities as follows: Two Million, Eight Hundred Ninety-
seven Thousand, Six Hundred Twenty -One Dollars and no cents ($2,897,621.00) to Round
Rock; One Million, Sixty -Two Thousand, Four Hundred Sixty-two Dollars and no cents
($1,062,462.00) to Cedar Park; and, Four Hundred Eighty -Two Thousand, Nine Hundred Thirty -
Seven Dollars and no cents ($482,937.00) to Austin. The Cities will deliver the Escrow Deposit
to the Escrow Agent no later than Friday, September 11, 2009. In the event the Cities fail to
timely deliver the Escrow Deposit as provided in this Agreement, LCRA may provide written
notice of default, and if the Cities fail to provide the Escrow Deposit in the total amount of
$4,443,020.00 within five (5) business days of such written notice of default, this Agreement
shall expire and be of no further effect on the sixth (6th) business day following LCRA's written
notice. The Escrow Deposit shall be held in an interest bearing account and the interest earned
shall be credited to the benefit of Round Rock, Cedar Park, and Austin. On the Closing Date, the
Escrow Deposit, including interest earned thereon, will be paid over to LCRA and applied to
Round Rock's, Cedar Park's and Austin's portions, respectively, of the Purchase Price, or
refunded to the Cities if not needed to pay the full Purchase Price. If Closing does not occur by
the Closing Date, then the Escrow Agent shall remit the Escrow Deposit to LCRA to be applied,
in this order to:
(a) Round Rock's, Cedar Park's and Austin's allocated portions, respectively,
of the Debt Service Reserve Fund (as defined in the Wastewater Disposal Contract); and
(b) if any portion of the Escrow Deposit or interest accrued thereon remains,
then to the Annual Project Requirement to be charged respectively to Round Rock, Cedar
Park and Austin for Fiscal Year 2010.
ARTICLE 2
REVIEW ITEMS
Section 2.1 Review Items. Following the Effective Date, LCRA shall make
available at the Cities' request for reasonable inspection and copying (at the Cities' expense) by
the Cities during normal working hours at the Facilities or at the offices of LCRA or its agents,
the following (the "Review Items"):
(a) Copies of all non -privileged (where the privilege arises under the attorney-
client privilege or other law) books, records, operating reports, trade account reports,
accounts payable and receivable lists, vendor contracts, management agreements,
maintenance records, purchase or sale contracts, regulatory records and correspondence,
deeds, easements, licenses, permits, certificates, soil reports, inspection reports, and
engineering reports (including, without limitation, endangered species, environmental,
and governmental inspection reports of LCRA related to the ownership or operation of
the Wastewater System Assets or relating to or in respect of the physical condition or
operation of Wastewater System Assets); and,
(b) Copies of all easements, including sanitary and public utility easements,
necessary to accommodate all parts of the Facilities.
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Section 2.2 Wastewater System Assets Review. During the period beginning
on the Effective Date and continuing until the thirtieth (30th) day prior to the Closing Date (the
"Review Period"), the Cities shall have the right, during normal business hours and upon
reasonable prior notice to LCRA, to conduct any and all reviews, investigations, or examinations
of the Review Items and the Wastewater System Assets, including review of all sanitary
easements and other easements necessary for providing wastewater service with the Wastewater
System Assets in compliance with TCEQ or other applicable regulations, which the Cities
determine necessary in the Cities' sole and absolute discretion. In the event that the Cities
substantially disturb or substantially disrupt any of the Wastewater System Assets during the
Review Period, the Cities shall be obligated to restore the Wastewater System Assets or any item
related thereto substantially to its prior condition to the extent the Cities' review, investigation,
or examination changed same and this obligation shall survive any termination of this
Agreement. LCRA may, at LCRA's option, accompany the Cities during any such inspections.
Notwithstanding any provisions herein or elsewhere to the contrary, the Cities shall be entitled to
terminate this Agreement on or before the expiration of the Review Period upon written notice to
LCRA; provided, however, that such termination shall not affect the disposition of the Escrow
Deposit in accordance with Section 1.5 of this Agreement.
Section 2.3 Failure to Provide Review Items. Should LCRA fail to provide
the Cities any information in its possession regarding the Wastewater System Assets as provided
in this Agreement, the Cities may terminate the Agreement upon written notice to LCRA,
provided, however, that such termination shall not affect the disposition of the Escrow Deposit in
accordance with Section 1.5 of this Agreement.
ARTICLE 3
SURVEY
Section 3.1 Survey. Within thirty (30) days after the Effective Date hereof,
the Cities, at the Cities' sole cost and expense, may procure a current plat or survey of such
portions of the Property as the Cities select, prepared by a duly licensed Texas land surveyor.
The survey shall be staked on the ground, and the plat or exhibit drawing shall show the Iocation
of all improvements, highways, streets, roads, railroads, rivers, creeks, or other water courses,
fences, easements, and rights-of-way on or adjacent to the Property, if any, and shall contain the
surveyor's certification that there are no encroachments on the Property and shall set forth the
number of total acres comprising the Property, together with a metes and bounds description
thereof.
The Cities shall within thirty (30) days after receipt of the survey review the same.
Within the thirty (30) day period, the Cities shall notify LCRA in writing of their approval of the
survey, or, in the event any portion of the survey is unacceptable to the Cities, then the Cities
shall notify LCRA in writing of the unacceptable portions of the survey. The Cities' failure to
give LCRA this written notice shall be deemed to be the Cities' approval of the survey. In the
event the Cities notify LCRA the survey is unacceptable, the Cities shall have the right to either
(1) terminate this Agreement upon written notice to LCRA, or (2) waive such survey matters and
proceed to Closing. Any termination of this Agreement shall not affect the disposition of the
Escrow Deposit in accordance with Section 1.5 of this Agreement.
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ARTICLE 4
REPRESENTATIONS AND COVENANTS
Section 4.1 The Cities' Representations and Warranties. The Cities
represent and warrant to LCRA that the following are true, accurate, and complete as of the
Effective Date: (a) each of the persons executing this Agreement on behalf of the Cities are duly
authorized to do so; (b) the Cities have full right and authority to enter into this Agreement and
to consummate the transaction described in this Agreement; (c) this Agreement constitutes the
valid and legally binding obligations of the Cities and is enforceable against the Cities in
accordance with its terms, subject to applicable law; and (d) neither the execution or delivery of
this Agreement nor the performance of the Cities' obligations under this Agreement violates, or
will violate, any contract or agreement to which the Cities are a party or by which the Cities are
otherwise bound. The aforesaid representations and warranties shall survive the Closing.
Section 4.2 LCRA's Representations and Warranties. LCRA represents
and warrants to the Cities that the following are true, accurate, and complete, as of the Effective
Date: (a) each of the persons executing this Agreement on behalf of LCRA is duly authorized to
do so; (b) LCRA has full right and authority to enter this Agreement and to consummate the
transaction described in this Agreement; (c) this Agreement constitutes the valid and legally
binding obligation of LCRA, and is enforceable against LCRA in accordance with its terms,
subject to applicable law; (d) neither the execution or delivery of this Agreement nor the
performance of LCRA's obligations under this Agreement violates, or will violate, any contract
or agreement to which LCRA is a party or by which LCRA is otherwise bound; and, (e) other
than as set forth in Schedule 4 of Exhibit A (the "Required Consents"), there are no consents or
approvals needed for LCRA to transfer the Wastewater System Assets to the Cities at Closing as
contemplated herein. LCRA represents that it has no knowledge that any Facilities in the
Wastewater System are located outside the Property, easements or rights-of-way being conveyed
to the Cities. The aforesaid representations and warranties shall survive the Closing.
Section 4.3 Covenants. In addition to LCRA's and the Cities' other
agreements and undertakings hereunder, LCRA and the Cities hereby covenant and agree with
each other that:
(a) Notices Received. LCRA, at its sole cost and expense, will promptly
deliver to the Cities copies of any written notices or promptly inform the Cities of any
other notices received or of which LCRA gains actual knowledge and possession alleging
the occurrence of any default or alleged default under any of the contracts included in the
Wastewater System Assets, or any violation or alleged violation of any law, regulation,
order, or other requirement of any governmental authority having jurisdiction over the
Wastewater System Assets, including a proposed compliance order, or any tort claims
relating to LCRA's ownership or operation of the Wastewater System Assets.
(b) Liens, Claims, Pledges, Encumbrances, and Agreements. The Wastewater
System Assets shall be transferred AS -IS without any representations, warranties or
guarantees as to liens, claims, pledges and encumbrances.
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(c) Notice to Texas Commission on Environmental Quality. The Cities, at the
Cities' sole cost and expense, shall deliver to the TCEQ all required notices and
applications for approval, if any, with respect to the change in ownership of the
Wastewater System Assets and obtain any approval, if required, of same. LCRA shall
have the right to review any filings made with the TCEQ prior to the filing of same and
LCRA shall otherwise cooperate and assist the Cities to the extent reasonably necessary
in obtaining such approvals.
(d) Delay of Issuance of Bonds. LCRA agrees to delay until after the
termination of this Agreement the issuance of bonds to refund approximately Forty
Million, Seven Hundred Forty Thousand, Three Hundred Sixty -Eight Dollars and no
cents ($40,740,368.00) of its commercial paper related to the costs of the System.
(e) Ongoing Projects. LCRA agrees that it will not enter into any new
contracts or amendments to existing contracts with third parties for design, engineering,
construction and/or other similar matters related to the Facilities after the Effective Date
of this Agreement without the express written consent of the Cities unless for Required
Improvements, in which event LCRA shall provide written notice of and estimates for the
Required Improvements.
Section 4.4 Closing Updates. At Closing, LCRA shall provide to the Cities
the LCRA Closing Certificate (so called herein) which shall certify, represent, and warrant to the
Cities, as of the date of Closing, that (i) each and every of the covenants contained in Section
4.3(a) of this Agreement has been fully satisfied, and (ii) each and every of the representations
and warranties contained in Sections 4.2 and 6.4 of this Agreement are and continue to be true
and correct on the date of Closing, provided, should an event occurring during the pendency of
this Agreement make any of such representations and warranties not correct on the date of
Closing, such noncompliance shall be indicated and described on the LCRA Closing Certificate.
In addition, LCRA will provide to the Cities a certified copy of the previously adopted Board
resolution determining that the Wastewater System Assets are no longer necessary, convenient,
or of beneficial use to the business of LCRA. The obligation of the City to close this transaction
is expressly conditioned upon the representations and warranties contained in Sections 4.2 and
6.4 hereof being true and correct on the date of Closing and the covenants contained in Section
4.3(a) hereof being fully satisfied on the date of Closing.
At Closing, each of the Cities shall provide to LCRA a City Closing Certificate (so called
herein) which shall certify, represent and warrant to LCRA, as of the date of Closing, that each
and every of the representations and warranties contained in Section 4.1 of this Agreement are
and continue to be true and correct on the date of Closing, provided, should an event occurring
during the pendency of this Agreement make any of such representations and warranties not
correct on the date of Closing, such noncompliance shall be indicated and described on the City
Closing Certificate. The obligation of the LCRA to close this transaction is expressly
conditioned upon the representations and warranties contained on Section 4.1 hereof being true
and correct on the date of Closing.
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ARTICLE 5
CASUALTY PRIOR TO CLOSING
Section 5.1 Casualty. In the event the Wastewater System Assets or any part
thereof should be damaged by any casualty prior to Closing, LCRA shall pay to the Cities, at
Closing, any funds actually received by LCRA as insurance proceeds relating to such casualty
(the "Insurance Proceeds") for repair or replacement of the damaged property by LCRA as
insurance proceeds relating to such casualty, and the sale shall be closed without the LCRA
repairing any such damage. The Cities acknowledge and agree, however, that LCRA is self-
insured for casualty events that result in damages of amounts less than One Hundred Thousand
Dollars ($100,000.00). If repair or replacement is necessary for the continued operation of the
Wastewater System Assets pending Closing, at the Cities' option or if required to meet regulatory
requirements, LCRA shall repair or replace any damaged property necessary for continued
operation of the Wastewater System Assets, subject to the Cities review and approval of the
plans for and execution of the repair or replacement. LCRA shall apply insurance proceeds
received, if any, in replacement of the damaged property to such repair or replacement. If the
cost of such repair or replacement is less than $100,000.00, then LCRA shall include the cost of
such repair and replacement in the LCRA Debt. The Cities shall remain entitled, regardless, to
receive at Closing any surplus insurance proceeds remaining after LCRA's repair or replacement
of the Wastewater System Assets.
ARTICLE 6
CLOSING
Section 6.1 Time and Place of Closing. The Closing Date shall be either (i)
December 8, 2009, or (ii) such other date as may be agreed between the parties or as provided in
Section 6.2 below. The Closing of the transaction contemplated by this Agreement (the
"Closing") shall be held at 10:00 a.m., local time on the Closing Date, at the offices of Texas
American Title Company ("Title Company") or at such other time and place as may be agreed
between the parties. All matters to take place at the Closing shall take place simultaneously, and
no delivery shall be considered to have been made until all such proceedings have been
completed.
Section 6.2 Conditions to Closing. Notwithstanding anything in this
Agreement to the contrary, it is specifically agreed that neither LCRA nor the Cities shall be
under any obligation to close the transaction(s), or any portion thereof, contemplated by this
Agreement, until: (a) the Cities have been able to issue, sell, deliver, and receive payment for
their bonds or other debt obligations or otherwise obtain funds in an amount sufficient to provide
the Cities with the funds necessary to pay the Purchase Price; (b) all required notices or
governmental approvals, if any, including, without limitation, any notification to, consent by, or
approval from TCEQ, have been given or obtained; and (c) all Required Consents have been
provided to the Cities. Notwithstanding the foregoing, the following shall not be conditions to
Closing: (i) TCEQ's consent or approval for the transfer or assignment of the wastewater
discharge permit(s) from LCRA to the Cities; (ii) the Union Pacific's consent to transfer or
assignment of LCRA's license for access to the East Wastewater Treatment Plant to the Cities;
or, (iii) the consent of Capital Metropolitan Transportation Authority or Georgetown Railroad to
transfer or assignment of any licenses over railroad rights-of-way. If any or all of these
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conditions have not occurred by the Closing Date, the Closing Date shall be extended for a
reasonable period of time in order to allow the unresolved condition to be satisfied, provided in
no event shall the Closing Date be extended beyond December 31, 2009, unless a required
approval necessary from a regulatory agency of the State of Texas and/or United States is still
pending without resolution but is being pursued in good faith by the Cities and there is a
reasonable likelihood of receiving such consent or approval, in which event the Closing Date
shall continue to be extended periodically for reasonable periods of time to allow such consent or
approval to be obtained.
Section 6.3 LCRA Delivery. At the Closing, LCRA shall deliver or cause to
be delivered to the Cities, at LCRA's sole cost and expense, each of the following items:
(a) A duly executed and acknowledged Special Warranty Deed conveying
LCRA's interest in the Property currently owned by LCRA but indicating that the
Property is accepted in its AS -IS condition with no warranties, representations or
guarantees as provided by Section 6.4.
(b) A Bill of Sale and Assignment ("Assignment") duly executed by the
Cities and LCRA, transferring and assigning to the Cities LCRA's interest in the
Facilities and the Intangible Assets, but indicating that the same are accepted in their AS-
IS condition with no warranties, representations or guarantees, other than third -party
warranties related to the System to the extent same are assignable, as provided by Section
6.4. The Assignment shall provide for the Cities' assumption of all of LCRA's
obligations and liabilities under or related to the Facilities or Contracts, subject to
LCRA's commitment to reasonably cooperate as to certain consents as provided in
Section 1.1(b) above. The Assignment shall contain as exhibits updated lists of the
Facilities and Contracts.
(c) An instrument, in a form acceptable to the Cities and LCRA, assigning to
the Cities all of LCRA's interests in any easements, licenses, or rights-of-way included in
the Property but indicating that the interests in any easements, licenses, or rights-of-way
included in the Property are accepted in their AS -IS condition without any
representations, warranties or guarantees as provided by Section 6.4. If any documents
forming easements, licenses or rights-of-way do not permit assignment, the Cities shall
be responsible for securing such consents but LCRA shall cooperate reasonably to assist
in the Cities' obtaining same.
(d) The LCRA Closing Certificate in form specified in Section 4.4 duly
executed and acknowledged by LCRA.
(e) Any other additional documents and instruments as in the mutual opinion
of the Cities' counsels and LCRA's counsel are reasonably necessary to the proper
consummation of this transaction.
(1) A11 combinations and/or keys to all locks related to the Wastewater
System Assets.
(g) To the extent reasonably available, the originals of all matters agreed to be
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transferred to the Cities at Closing, unless otherwise noted, pursuant to Section 1.1 of this
Agreement.
Section 6.4 LCRA'S Disclaimer of Warranty. Notwithstanding anything
this Agreement to the contrary, the Cities acknowledge that they are accepting the Property in its
"as -is, where -is" condition "with all faults" and defects as of the Closing and specifically and
expressly without any warranties, representations, or guarantees, either express or implied, as to
its condition, fitness for any particular purpose, merchantability, or any other warranty of any
kind, nature, or type whatsoever from or on behalf of LCRA other than third -party warranties
related to the System to the extent same are assignable. Any instruments of transfer for the
Property shall reference this agreement by the Cities. Notwithstanding the foregoing, the Cities
may terminate the Agreement according to the provisions set forth in this Agreement including,
but not limited to, Sections 2.2, 2.3, and 3.1. Any termination of this Agreement shall not affect
the disposition of the Escrow Deposit in accordance with Section 1.5 of this Agreement.
Section 6.5 The City Delivery. At the Closing, the Cities shall deliver to
LCRA the following items:
(a) Each City's Closing Certificate pursuant to Section 4.4 of this Agreement.
(b) The Purchase Price, in good funds, based on the estimate of the
Defeasance Amount provided by LCRA on December 4, 2009, in the amount and manner
specified in Sections 1.2 and 1.3.
(c) Such evidence or documents as may reasonably be required by the LCRA
evidencing the capacity of the Cities to close the transaction and the authority of the
person or persons who are executing the various documents on behalf of the Cities in
connection with the sale of the Wastewater System Assets.
(d) Any other additional documents or instruments as in the mutual opinion of
the Cities' counsels and LCRA's counsel are reasonably necessary to the proper
consummation of this transaction.
Section 6.6 Adjustments and Prorations. At Closing, the following items
shall be adjusted or prorated between LCRA and the Cities:
(a) LCRA shall pay to the Cities, in cash at Closing, the amount of any sums,
if any, prepaid by third parties to LCRA. and held by LCRA pursuant to the provisions of
any of the contracts included in the Wastewater System Assets, and the Cities assume all
liabilities and obligations for. such amounts and will execute and deliver notices of
transfer and assumption of security deposit to all such third parties. The Cities shall pay
LCRA, in cash at Closing, the amount of any sums, if any, prepaid by LCRA to third
parties pursuant to the provisions of any of the Intangible Assets included in the
Wastewater System Assets.
(b) LCRA shall pay and/or transfer or cause to be paid or transferred to the
Cities any funds maintained in the Repair and Replacement Reserve Fund and/or the
Operation and Maintenance Reserve Fund or any other similar funds established to pay
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for Operations and Maintenance Expenses of the Wastewater System Assets pursuant to
the Wastewater Disposal Contract. LCRA shall have no obligation to pay to the Cities
any such funds held by Brazos.
(c) If any adjustments pursuant to this Section 6.6 are, subsequent to Closing,
found to be erroneous, then either party hereto who is entitled to additional monies shall
invoice the other party for such additional amounts as may be owing, and such amount
shall be paid within thirty (30) days from receipt of the invoice. This covenant shall not
merge with the instruments of conveyance, transfer, or assignment to be delivered
hereunder but shall survive the Closing.
Section 6.7 Possession. Possession of the Wastewater System Assets shall be
delivered to the Cities by LCRA at the Closing.
Section 6.8 Costs and Expenses. Unless expressly provided herein that
LCRA shall pay certain costs and expenses such as in Section 4.3, all costs and expenses in
connection with the transaction contemplated by this Agreement shall be borne by the Cities,
including but not limited to costs of defeasing LCRA's outstanding debt associated with the
Wastewater System Assets.
Section 6.9 Additional Deliveries at Closing. At Closing, LCRA and the
Cities shall deliver to each other the following:
(a) A document terminating the Wastewater Disposal Contract, including a
full release and discharge of all parties thereto (including the Brazos River Authority)
from any further obligations under or related to said Wastewater Disposal Contract,
(b) A document executed by the TWDB terminating or assigning to the Cities,
and releasing and fully discharging LCRA from, any obligations under or related to, the
Master Agreement between LCRA and the TWDB entered on or about November 14,
2001 (the "TWDB Agreement");
(c) A document terminating or assigning to the Cities, and releasing and fully
discharging LCRA from, any obligations under or related to, the Agreement for
Acquisition of Wastewater System Assets (Southwest Interceptor Line and Round Rock
South Interceptor Line) between Round Rock and LCRA entered on or about July 2,
2001 ("Interceptors Agreement") and any related wastewater service agreements; and
(d) A document terminating or assigning to the Cities, and releasing and fully
discharging the LCRA from any obligations under or related to, the Subregional
Contracts between LCRA and Brushy Creek MUD and Fern Bluff MUD.
ARTICLE 7
REMEDIES
Section 7.1 The Cities' Remedies for Default. Notwithstanding any express
provision of this Agreement to the contrary, in the event LCRA fails or refuses to timely comply
with LCRA's obligations hereunder or at Closing, any of LCRA's representations, warranties, or
14
covenants contained herein is not true or has been breached or LCRA enters into any contracts
prior to the Closing Date to which the Cities timely object, the Cities shall have the following
remedies as the Cities' sole and exclusive remedies: (a) to enforce this Agreement by specific
performance, mandamus, or similar remedy; (b) to terminate this Agreement prior to or at
Closing by giving LCRA written notice of such election; or, (c) to waive prior to or at Closing
the applicable objection or condition and proceed to close the transaction contemplated hereby in
accordance with the remaining terms hereof. Nothing in this section is intended to alter any
remedies available to any of the parties under the Wastewater Disposal Contract in the event of a
breach of or default arising under the Wastewater Disposal Contract.
Section 7.2 LCRA's Remedies for Default. Notwithstanding any express
provision of this Agreement to the contrary, in the event the Cities fail or refuse to timely comply
with the Cities' obligations hereunder or are unable to do so as a result of the Cities' acts or
failure to act, LCRA may terminate this Agreement and retain and apply the Escrow Deposit as
provided in Section 1.5 as its sole remedy. Nothing in this section is intended to alter any
remedies available to any of the parties under the Wastewater Disposal Contract in the event of a
breach of or default arising under the Wastewater Disposal Contract.
Section 7.3 Termination of Agreement. Should either party terminate this
Agreement, both LCRA and the Cities shall be relieved and released of all obligations, claims,
and liabilities hereunder, or as expressly otherwise provided herein; provided, however, if the
Agreement is terminated for any reason other than default by LCRA, then LCRA shall be
entitled to include in the Operation and Maintenance Expenses of the System for the fiscal year
of the System then underway or in the subsequent fiscal year any expenses incurred by LCRA in
attempting to fulfill its obligations under this Agreement.
ARTICLE 8
GENERAL PROVISIONS
Section 8.1 Notices. All notices and other communications hereunder shall be
in writing and shall be delivered by one of the following means: hand delivery; expedited
courier delivery; mailed by registered or certified mail, return receipt requested, postage prepaid;
or, electronic mail provided that a duplicate of the same notice or communication is also mailed
by first-class mail. All notices and communications hereunder shall be addressed as follows, and
shall be effective upon actual delivery if delivered by hand or by expedited courier delivery or, if
mailed, three business days after deposit in the United States mail:
(a) If to LCRA, to:
Thomas G. Mason
General Manager
LCRA
P. O. Box 220
Austin, Texas 78767-0220
Phone: (512) 473-3283
Email: Thomas.Mason@LCRA.org
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With a copy to:
Madison Jechow
Associate General Counsel
LCRA
P. 0. Box 220
Austin, Texas 78767-0220
Phone: (512) 473-4067
Email. Madison.Jechow@LCRA.org
(b) If to the City of Round Rock, to:
James R. Nuse
City Manager
221 E. Main St.
Round Rock, Texas 78664
Phone: (512) 218-5400
Email: jnuse@round-rock.tx.us
•With a copy to:
Stephan L. Sheets
City Attorney
309 E. Main St.
Round Rock, Texas 78664
Phone: (512) 255-8877
Email: slsheets@sheets-crossfield.com
(c) If to the City of Cedar Park
Brenda Eivens, City Manager
600 N. Bell Blvd.
Cedar Park, Texas 78613
Phone: (512) 401-5010
Email: Brenda.Eivens@cedarparktx.us
With a copy to:
Charles Rowland
City Attorney
600 N. Bell Blvd.
Cedar Park, Texas 78613
Phone: (512) 401-5004
Email: Charles.Rowland@cedarparktx.us
(d) If to the City of Austin
City Manager
P.O. Box 1088
Austin, Texas 78767
Phone: (512) 974-2200
Email: marc.ott@ci.austin.tx.us
With a copy to:
City Attorney
P.O. Box 1088
Austin, Texas 78767
Phone: (512) 974-2268
Email address: david.smith@ci.austin.tx.us
Any party may change its address for receiving notice by giving notice of a new address
in the manner herein provided; however, if mailed, notice of such new address will be effective
only upon actual receipt by the other parties.
Section 8.2 Headings and Defined Terms. Descriptive headings are for
convenience only and shall not control or affect the meaning or construction of any provision of
this Agreement. Unless otherwise provided in this Agreement, all terms defined in the
Wastewater Disposal Contract shall have the same meanings when used herein as when used in
the Wastewater Disposal Contract.
Section 8.3 Assignment. Assignment of this Agreement by the parties is
prohibited without the prior written consent of all other parties, which consent shall not be
unreasonably withheld or delayed. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and assigns.
Section 8.4 Governing Law and Forum. This Agreement shall be construed
and interpreted in accordance with the law of the State of Texas and the obligations of the parties
hereto are and shall be performable in Williamson County. By executing this Agreement, each
party hereto expressly (a) consents and submits to personal jurisdiction and venue consistent
with the previous sentence, (b) waives, to the fullest extent permitted by law, all claims and
defenses that such jurisdiction and venue are not proper or convenient, and (c) consents to the
service of process in any manner authorized by Texas Law.
Section 8.5 No Oral Modification. This Agreement may not be modified or
amended, except by an agreement in writing signed by both the LCRA and the Cities.
Section 8.6 No Oral Waiver. The parties may waive any of the conditions
contained herein or any of the obligations of the other party hereunder, but any such waiver shall
be effective only if in writing and signed by the party waiving such conditions or obligations.
Section 8.7 Time of Essence. Time is of the essence of this Agreement.
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Section 8.8 Total Agreement. This Agreement, including the Exhibits hereto,
constitutes the entire agreement among the parties pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings of the parties in
connection therewith including that certain Memorandum of Understanding entered by Cedar
Park, Round Rock and LCRA on or about June 3, 2009 and amended on or about August 28,
2009. No representation, warranty, covenant, agreement, or condition not expressed in. this
Agreement shall be binding upon the parties hereto or shall affect or be effective to interpret,
change, or restrict the provisions of this Agreement except by an amended agreement in writing
signed by both the LCRA and the Cities.
Section 8.9 Partial Invalidity. If any clause or provision of this Agreement is
or should ever be held to be illegal, invalid, or unenforceable under any present or future law
applicable to the terms hereof, then and in that event, it is the intention of the parties hereto that
the remainder of this Agreement shall not be affected thereby, and that in lieu of each such
clause or provision of this Agreement that is illegal, invalid, or unenforceable, there be added as
part of this Agreement a clause or provision as similar in terms to such illegal, invalid, or
unenforceable clause or provision as may be possible and be legal, valid, and enforceable such
that the intention of the parties is effected as closely as is possible.
Section 8.10 Counterpart Execution. To facilitate execution, this Agreement
may be executed in as many counterparts as may be convenient or required. It shall not be
necessary that the signature of all persons required to bind any party appear on each counterpart.
All counterparts shall collectively constitute a single instrument. It shall not be necessary in
making proof of this Agreement to produce or account for more than a single counterpart
containing the respective signatures of, or on behalf of, each of the parties hereto.
Section 8.11 Holidays. In the event that the date upon which any duties or
obligations hereunder to be performed shall occur upon a Saturday, Sunday or legal holiday,
then, in such event, the due date for performance of any duty or obligation shall thereupon be
automatically extended to the next succeeding business day.
Section 8.12 Effective Date. The Effective Date of this Agreement shall be the
date set forth on the first page hereof.
Section 8.13 Hold Harmless. The Cities shall not be liable or responsible for,
and shall be saved and held harmless by LCRA from and against any and all suits, actions,
losses, damages, claims, or liability of any character, type, or description, including all expenses
of litigation, court costs, and attorney's fees, for injury or death to any person, or injury to any
property, received or sustained by any person or persons or property, arising out of, or
occasioned by, directly or indirectly, LCRA's operation of the Wastewater System Assets and
accruing prior to Closing, except to the extent such claims of damages arise from the gross
negligence or willful misconduct of the Cities. LCRA shall not be liable or responsible for, and
shall be saved and held harmless by the Cities, jointly and severally, from and against any and all
suits, actions, losses, damages, claims, or liability of any character, type, or description,
including all expenses of litigation, court costs, and attorney's fees, for injury or death to any
person, or injury to any property, received or sustained by any person or persons or property,
arising out of, or occasioned by, directly or indirectly, the Cities' operation of the Wastewater
18
System Assets and accruing after Closing, except to the extent such claims of damages arise
from the gross negligence or willful misconduct of LCRA. This Section and the hold harrnless
commitments made within it shall survive the Closing.
Section 8.14
Exhibit A
Schedule 1
Schedule 2
Schedule 3
Schedule 4
Exhibit B
Exhibit C
Exhibits. The following Exhibits are attached hereto:
Wastewater System Assets
Facilities
Intangible Assets
Property
Required Consents
Estimated Defeasance Amount
Estimated Charges for FY 2009-10
Section 8.15 Third Party Beneficiaries. Nothing in this Agreement, express
or implied, is intended to confer upon any person, other than the parties hereto and their
successors and assigns, any benefits, rights or remedies under or by reason of this Agreement.
ARTICLE 9
SPECIAL PROVISION
Section 9.01 Reuse of Treated Effluent from the System. The Cities retain
the same right they have under the Wastewater Disposal Contract to the use or reuse of any
effluent, which is now or may in the future be generated by the Facilities, prior to discharge into
waters of the state, notwithstanding any termination of the Wastewater Disposal Contract;
provided, however, that nothing in this Section or Agreement is intended to, nor shall it be
construed as, waiving any rights that LCRA may have with regard to reuse of effluent under any
agreements other than the Wastewater Disposal Contract, under administrative decisions, or
under state law. This Section shall survive the Closing but shall terminate automatically upon
execution by the Cities of any agreement reaffirming or readjusting the allocation for direct reuse
of effluent from the System.
IN WITNESS WHEREOF, each party hereto has signed this Agreement or caused this
Agreement to be signed in its corporate name by its officer thereunto duly authorized, all as of
the date first above written.
Signatures on the Following Pages
19
LCRA: LOWER COLORADO RIVER AUTHORITY
By:�t7—•--,
Tho as G. Mason, General Manager
20
THE CITIES: CITY OF ROUND ROCK, TEXAS
o
By: a
c� 'f�, 1 T�
Jae U; MAy r Pa7-Tem
Attest:
Sara White, City Secretary
21
CITY OF CEDAR PARK, TEXAS
By: � ''�f��l. Y�. f�t 'v-3
Brenda Eivens, City Manager
CITY OF AUSTIN, TEXAS
By:
Rudy Gar a, ;stant City Manager
23
Exhibit A - Schedule 1
Facilities
Please see attached asset list for a more detailed accounting of equipment and materials.
East Plant Facility:
1 — Influent Lift Station
1 — Screen and Grit Building
8 —Aeration Basins
4 — Final Clarifiers
1 — Chlorine Contact Basin
1 — UV System
1 — Return Activated Sludge Building
1 — Chemical Building
1 — Electrical Building
1 — Aerobic Digester with Dome
1 — South Treatment Unit
1 — Solids Handling Building
1 — Biosolids Building
4 — Biofilters
1 — Maintenance Building
1 — Construction Trailer
1 — Blower Building
Administration Building:
Consisting of:
4 Offices
1 Conference Room
1 Training Room
1 Laboratory
1 Kitchen/Break Room
Interceptors and Pipelines:
Contract 6
Contract 6A
Round Rock Lake Creek Interceptor
Contract 20
Contract 21
Round Rock Onion Creek Interceptor
Southwest Wastewater Interceptor
Lake Creek Interceptor
Fern Bluff Force Main
Contract 5B
Onion Creek Interceptor
Contract 3
Contract 2
Contract 1
West Plant Facility:
1 — influent Lift Station
1 — Carbon Filter System
2 — Treatment Units
1 — UV System
4 — Drying Beds
1 — Sludge Station
Associated Buildings
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Exhibit A — Schedule 2
intangible Assets
1. Texas Pollutant discharge Elimination System (TPDES) Permit No.
W00010264-001 —West Plant
2. Texas Pollutant Discharge Elimination System (TPDES) Permit No.
WQ0010264-002 -- East Plant
3. Texas Utilities Electric Company — Agreement: for Electric Service — No. 370-
130
4. Union Pacific Railroad Company — Agreement Audit Number CAB8381
5. Union Pacific Railroad Company
01772-15, Audit No. 210886
— Pipeline Crossing Agreement Folder No.
Pipeline Crossing Agreement Folder No.
Pipeline Crossing Agreement Folder No.
Pipeline Crossing Agreement Folder No.
6. Union Pacific Railroad Company —
01755-18, Audit No. 210917
7. Union Pacific Railroad Company —
01573-73, Audit No. 205250
Union Pacific Railroad Company —
2041-00
9. Capital Metropolitan Transportation Authority License Agreement M0106014
— Maintain a 42" wastewater pipe line at AUNW MP 78.66
10. Capital Metropolitan Transportation Authority License Agreement M0106015
— Maintain a temporary private at -grade crossing at AUNW MP 76.92
11. Capital Metropolitan Transportation Authority License Agreement M0106019
with Terry Lamar Robinson — Maintain a private at -grade crossing at AUNW
MP 79.38
12. Pipeline License with Georgetown Railroad Company at Eng Sta 403+84
13. Department of Highways and Public Transportation Permit for IH -35 Crossing
with 30" Iran Pipe
14. Department of Highways and Public Transportation Permit for Highway 79
Crossing with 21"Wastewater Line
15. Memorandum of Lease Agreement with Grace Telander, Independent
Executor of the Estate of Arnold Telander
16. Agreement for Boring of Wastewater Line under FM 3406
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ALAMO TITLE COMPANY 0.1080 ACRES IN lo09emOnt 2003108180
THE JOSEPH MARSHALL SURVEY,
ABSTRACT NO. 408 & THE PA HOLDER j
SURVEY, ABSTRACT NO.297 US HIGHWAY
79 BRUSHY CREEK WASTEWATER
TREAMENT PLANT F XPANSION
21.191 ACRES CONVEYED TO LCRA BY I looso I 2003107982
DOCUMENT N0.2003107982 37.150 ACRES I 2000072244
CONVEYED TO LCRA BY DOCUMENT NO.
2000072244 BRUSHY CREEK WASTEWATER
TREAMENT PLANT EXPANSION
AKINS, RICK AKINS & NOWLIN, LLP 21.191 Rosso 2004024134
ACRES CONVEYED TO LCRA BY DOCUMENT I
NO.2003107982 37.150 ACRES CONVEYED I
TO LCRA BY DOCUMENT NO.2000072244
BRUSHY CREEK WASTEWATER TREAMENT
PLANT EXPANSION
Tract No. 1 0.394 8 Trod 2 37.150 zeros Land Dood 2000072244
Josoph Marshall Survoy Abotract No. 409 Vol I
849 Pago 807 Vol 849 Pogo 813 Vol 2129 Pagel
744 Jolndor & Conoont Moorbo, Clint
•
3.837 zeros Josoph Marshall Survey Abctroet No. 'Land Dood 2000072244
409 deed convoyod to Scngo, HolUs Val 872
Page 415
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WASTEWATER TREAMENT PLANT
EXPANSION
CITY OF ROUND ROCK 35/45 GENPAR LLC
19 INCH SOUTHWEST ROUND ROCK
WASTEWATER INTERCEPTOR GENERALLY
LOCATED FROM STATION 52+ 15.33 TO
STATION 56.001N THE HESTERroS
CROSSING RIGHT OF WAY COUNTY ROAD
172 RIGHT OF WAY WITHIN LOT 0 BLOCK B
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'BRUSHY CREEK REGIONAL WASTEWATER
TREATMENT PLANT WILLIAMSON COUNTY
'BRUSHY CREEK REGIONAL WASTEWATER
SYSTEM W ILLIAMSON COUNTY
BRUSHY CREEK REGIONAL WASTEWATER
SYSTEM WILLIAMSON COUNTY
)Brushy Crook Wostowotor Systom Williamson
'County
Brushy Crook Wostowolor Systom Williamson
County
Bnashy Crook Wostowofor Systom Williamson
County
BRUSHY CREEK REGIONAL WASTEWATER
TREATMENT PLANT W IWAMSON COUNTY
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BRUSHY CREEK REGIONAL WASTEWATER
TREATMENT PLANT WIWAMSON COUNTY
BRUSHY CREEK WASTEWATER SYSTEM --�
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ACCESS EASEMENT RECORDED IN VOL
DOCUMENT NO. 2003106169 ACQUISITION &
ADDITIONS (INCLUDES LAND FILES)
LEASE AGREEMENT FARM PURPOSES NON-
PERMANENT CONTRACTS -AGREEMENTS
MEMORANDUM OF LEASE AGREEMENT
RECORDED IN VOL DOCUMENT NO.
2004024134 NONPERMANENT CONTRACTS -
AGREEMENTS
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GENERAL PROPERTY WARRANTY DEED
RECORDED IN VOL DOCUMENT 2003107962
ACQUISITION & ADDITIONS (INCLUDES LAND
FILES)
,I vvww.�w Greco Tolandor Arnold Tolandor Brushy Gonorol Warranty Dood Groco Tolandor Arnold
Crook water Wastewater System Tala dor Brushy Crook Water Wanowator Systom
2003
1! 6000212632 W WU"0601 87886 7E/ANDER. GRACE TELANDER ARNOLD REAL ESTATE CONTRACT PROPERTY
ESTATE PURCHASE ACQUISITION a ADDMONS
(INCLUDES LAND FILES)
11 6000221564 WWU•O6A1 91963 35145 LAFRONTERA LIMITED CONVEYANCE OF EXISTING FACILITIES
PARTNERSHIP SMALLING WILLIAM 5 ACQUISITION & ADDITIONS (INCLUDES LAND
FILES)
„DOpumnnt ID I Shot( Loeoton ' Nomas
Wastewator Troatmont 81114 site ;Tho following documonls labolod 'tom 1 aro
a0.colatod
6000212643 W WU.06.01 87896 TTELANDER, GRACE TELANDER ARNOLD
I ESTATE
.IWWU-06-03r,e arsuu ITELANDER, GRACE TELANDER, ARNOLD
ESTATE
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IIWWU-0603-02 87906 TTELANDER, GRACE TELANDER, ARNOLD
ESTATE
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RETAIL JOINT VENTURE DOCUMENT NO.
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1 Eosomont • 20050 _
+Eosomont i 2005050
IEasomont 1 20050453
Granted to tho Hamby Crook Wator control and I E000mont '.Vol 1019 Pogo
Improvement District Nom•
493
Granted to the Brushy 0rook Water control and Eosomont }Vol 1610 Pogo
Improv_omont DistrictNo.1 1484
Grontodto tho Brushy Crook Wator control and Enactment iVol 1819 Pogo
Improvoment District No,t +409
Granted to Obi, Brushy Crook Water control and i Eosomont {Vol 1610 Pogo
tmproVomont Dlotrict No_1 1435
Grantod to tho Brushy Crook Wator control and •Eosomont ;Vol 1019 Pogo
Imnmvmment District No,1 144:1
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'City of Round Rock Wootowator Easement (BRUSHY CREEK WASTEWATER SYSTEM 10.22 acros 20 (cotv0do Wastowator Eosomont
I I W ILLIAMSON COUNTY 1J000b M Har oIi SurOoy Abrdn Wt.NO 284
1 Clty of Round Rock Wastowator F_asomant BRUSHY CREEK WASTEWATER SYSTEM 10.09 ocros 20 footwido Wastewater Eosomont
I W ILLIAMSON COUNTY land .10 Temporary construction ornament Jacob
arTaIL SurvoKAbstmctNo 2,84
City of Round Rock IWactowator Eosomont ?BRUSHY CREEK WASTEWATER SYSTEM ,M H0.01 acres 20 footnddo Waotowator Eaoomont
I W ILL)AMS_0N_COUNTY 'JamMN
b arro)I SurvoyAbstrac No 2B?
Lutheran Social sorvleon IPUE
;BRUSHY CREEK WASTEWATER SYSTEM )12, 900 square foot PUE
! W ILLIAMSON COUNTY
801 /Album Inc Conveyonco of facllltloo to Brushy Crook Wator 1 BRUSHY CREEK WASTEWATER SYSTEM 'anon Crook Lift station, torso mein, and
.control and Imprvomont district LA, ILLIAMSON COUNTY intorcnptgr
AUSTIN CITY OF ASSIGNMENT OF EASEMENT RIGHTS !BRUSHY CREEK WASTEWATER SYSTEM ;Lupo Corona, Johnny Corona, Iron Corona,
!DOCUMENT NO 0734852 ACQUISITION G 1 `Wllllom Lowg. Bill Nations, arises Stark, Kon
;ADDITIONS (INCLUDES LAND FILES) :Burgo, Louis henna, Jr, Louts bonne Sr„ Blillo Suo
I %Honna cross, Honry rtchordoon, Arnold PotorsorL
Rubio minor, Som Taylor, Chadds Johnson,
I `Carrel T. Hardin. Wayland Prinz, Mlcahool
I 'EIaha.01gan_lt0000 W! B,.Cottolt _
Honry and Shoron Richardson 7Sonitary Sowor Tunnel 0000m0nt I BRUSHY CREEK WASTEWATER SYSTEM (Grunted to the Brushy Crook Water comrol and
i ! Imppyomont Durand Nott
Olean Koopp :Sonitary Sowor Tunnol o0somont I BRUSHY CREEK WASTEWATER SYSTEM •Grontod to No Brushy Crook Water control and
'ImproY.omontDlstact No,.1
Rubio Loulao Rainer ;Sanitary Sowor Tunnol moment !BRUSHY CREEK WASTEWATER SYSTEM ;Grunted to the Brushy Crook Wator control and
Improvomont District No.1
Sam C. Taylor and Genova Taylor !Sanitary Sower Tunnol easement !BRUSHY CREEK WASTEWATER SYSTEM Gmntod to the Brushy Crook Water control and
I Improvomont DlstrlclNo.1
ILoulo Honna Jr. '(Sanitary Sowor Tunnol oaoomont I BRUSHY CREEK WASTEWATER SYSTEM 'IGrantod to tho Bushy Crook Wator control and
ImprovomontDistrlct No _1
Robert Horbor and Caorl ruth Honna Sanitary Sower Tunnel oosomont BRUSHY CREEK WASTEWATER SYSTEM 'Granted to tho Brushy Crook Water control and
.Ho.Ww,r 1Improv_emout_DlotriptNf0
W. B. Cotton Entorprtsos !Sanitary Sower Tunnol onsomont !BRUSHY CREEK WASTEWATER SYSTEM 10ramod to tho Brushy Crook Water control and
!Improvomont Dledi; k Not
JralitEndJlomoawno__rs_aseoclatton IWasteattor E00omont iBRUSITY CREEK WASTEWATER SYSTEM_�GraModto LORA
Trinidad Nava, Hedlnda Pero; Horny Nava, Waotovmtor Eaoomant 1 BRUSHY CREEK WASTEWATER SYSTEM IGrantod to LCRA
.EE.H..Nava l
Granted to LORA
Grantod to LCRA
Granted to LORA
Granted to LCRA
_ _Granted to LCRA
Granted to LCRA
TrGrantod to LCRA
Granted to LCRA
Grontod to LORA
Granted to LCRA
Granted to LCRA
Granted to LCRA
Granted to the Brushy Crook Water control and
lmpraKo.MODLDlotdetNat
IIGrontod to tho Brushy Crook Water control and
lI p om ntAlatrlct No.i
(Granted to the BwhyCrook Writer control and
Jmprovomont Dbtrtd No.1
Granted to the City of round Rock
Gmnt0d to tho Brushy Crook Water control and
ImProvomR0tD{stdcttdo 1
Granted to LCRA
Granted to LCRA
Granted to LCRA
Granted to LCRA
,Warl000tor Eaaomant : BRUSHY CREEK WASTEWATER SYSTEM I
IyVaatowator Easement I BRUSHY CREEK WASTEWATER SYSTEM I
IWaotowator Eosomont BRUSHY CREEK WASTEWATER SYSTEM•
tWaNm?ptor Eosomont 'BRUSHY CREEK WASTEWATER SYSTEM I
rWoalo ,weer Enpomont .BRUSHY CREEKWASTEWATER SYSTEM
IWastowntor Eosomont I BRUSHY CREEK WASTEWATER SYSTEM I
1 W astowator Ea.omant !BRUSHY CREEK WASTEWATER SYSTEM
-I
Waolowator Eaaomont I BRUSHY CREEK WASTEWATER SYSTEM
War4owator Easement ;BRUSHY CREEK WASTEWATER SYSTEM
Wasiowator Eosomont I BRUSHY CREEK WASTEWATER SYSTEM
CWadswater Easement (BRUSHY CREEK WASTEWATER SYSTEM
Wootowator Easoment BRUSHY CREEK WASTEWATER SYSTEM
•
W ostowalor Easomenl
;BRUSHY CREEK WASTEWATER SYSTEM
Waotowotor Eaaomont , BRUSHY CREEK WASTEWATER SYSTEM
'Sanitary Sower Tunnol ooaomont !BRUSHY CREEK WASTEWATER SYSTEM
Waotowator Eaaomont - !BRUSHY CREEK WASTEWATER SYSTEM
Sanitary Sower Tunnol oaoomont (BRUSHY CREEK WASTEWATER SYSTEM
Tom conswctbn onsomom BRUSHY CREEK WASTEWATER SYSTEM
I
lam m construction oasomont .BRUSHY CREEK WASTEWATER SYSTEM
Fri .rY............._.._._._._.
Tomporarymnsbuctlon oasonron0 BRUSHY CREEK WASTEWATER SYSTEM
Temporary construction oa0omonl !BRUSHY CREEK WASTEWATER SYSTEM
i
Sanitary Sower Tunnol easement !BRUSHY CREEK WASTEWATER SYSTEM
Sanitary Sawor Tunnol 000mont 'BRUSHY CREEK WASTEWATER SYSTEM
Sanitary Sowor Tunnol ooaomont 'BRUSHY CREEK WASTEWATER SYSTEM
Sonitory Sowor Tunnol oasomont 'BRUSHY CREEK WASTEWATER SYSTEM
Sanitary Sowor Tunnol oanomont 'BRUSHY CREEK WASTEWATER SYSTEM
Berton Anderson
Edward Frencln antl Kim Frances
Krot David Townsend and Robin
Towneond
The Oaklands Owners Association, Inc,
James enol EIWra Ortiz
Stove L M rtin and Plano Martin
Micahwl Carlson and Suonoll Carlson
James Josoph Moore and Gonovlovo
Joanotto_M,00ro
Gina Anthill and Mimics Anthill
WosloyGroan and Jan Robin Groan
Joo C. Rope and 8lttlo JRopa
H. David Wordon and Wanda Lou Wordon
Lupo Corona and Nora Corona
Johnny Corona and Iron Corona
Michael J Fisher and Debra A. Habra.
Curtis Chamber and Patricia Chmaboro
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•'Emma Davi and Billy _C. Davis
• James Ford and Mary Esther Ford
Paul Douglas Hoyt and Sharon K Hoyt
Raymond C. Tosmor and Bomlco L
Tossmor
I W. B. Cotton EntorpHaoe
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{Carroll hardin and Carolyn Hardin
!Louis Honna Sr.
IBllllo Suo Norma Cross
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BRUSHY CREEK WASTEWATER SYSTEM 1Grontod to tho Brushy Crook Wator control and
' Improv_omont DI6rld No,t
BRUSHY CREEK W ASTEWATER SYSTEM :Grontod to L_CRA
BRUSHY CREEK WASTEWATER SYSTEM I ROUND ROCK WILWAMSON COUNTY
CHANDLER CREEK (AUSTIN SUBDIVISION MILEPOST 160.02
j LICENSE CONSTRUCTION SANITARY
SEWAGE WASTEWATER PIPEUNE FOLDER
N01513 73 AUDIT 205,250
(BRUSHY CREEK WASTEWATER SYSTEM ROUND ROCK WILUAMSON COUNT
CHANDLER CREEK AUSTIN SUBDNISION MILEPOST 157.540
UCENSE CONSTRUCTION SANITARY
SEWAGE WASTEWATER PIPELINE FOLDER
... _. NO 4177915 AUDIT 210656
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I UNION PACIFIC RAILROAD COMPANY (PIPELINE CROSSING EASEMENT
!ACQUISITION 8 ADDITIONS (INCLUDES LAND
FILES)
' I
'UNION PACIFIC RAILROAD COMPANY 1 PIPELINE CROSSING EASEMENT
ACOUISITION S ADDITIONS (INCLUDES LAND
FILES)
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EXHIBIT B - 1
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Required LCRA Escrow Disbursements (principal + interest
Brushy Creek (3)
ooti 0? 0) 01 CI 00
d=dcV o 004 c4v.-c50000007
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$3,618,351.54
$426,839.44
$20,887,193.99
$50.626.789.05
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26,763,201.45
EXHIBIT C
Brushy Creek Regional Wastewater System
TEMPLATE
TEMPLATE
Impacts of a Partial FY 2010 Budget on the Closing Transaction
LCRA Operations & Maintenance
Impact to Closing
Transaction
October November December FY 10 Budget (Credit)! Owed
FY 2010 O&M
LCRA FY10 Budget $41,914 $41,914 541,914 8502,968
(OveryUnder Recovery (FY08) ($7,270) (57,270) (87,270) ($87,245)
Total LCRA O&M $34,644 $34,644 $34,644 $415,723
($65,434)
Notes
FY 2009 O&M
(OveryUnder Recovery (FY09) N/A N/A NIA N/A ($250,000) Estimated
Uses of LCRA O&M Funds'
Labor $7,059 $7,059 $7,059
Outside Engineering
GSWW Interceptor Project $100,000
Internal Business Support 814,233 $14,233 814,233
Corporate Overhead $11,274 $11,274 $11,274
O&M Uses $132,566 $32,566. $32,566
LCRA O&M Uses - O&M Budget $90,652 ($9,348) ($9,348) $71,955
Total LCRA O&M related Impacts
(LCRA only)
Brazos Operations & Maintenance
Brazos FY 10 Budget 8444,211 $444,211 $444,211 $5,330,529
Uses of Brazos O&M (remitted to Brazos)
Payment to Brazos 8444,211 $444,211 $444,211
Total Brazos O&M related Impacts
Total O&M related Impacts
LC RA Annual Project Requirement
FY 2010 Budget APR
Debt Service
Coverage
Management Fee
Uses of APR Funds
Debt Service Payments
CP interest (estimated)
Coverage Inurring
APR Uses - Budget APR
$0 $0
($243,478)
$0 $0
$243,478
Estimated
Estimated
Estimated
Estimated
$804,895 $804,895 $804,895 $9,658,737
$80,490 $80,490 $80,490 $965,874
540,245 $40,245 $40,245 $482,937
5925,629 $925,629 $925,629 $11,107,548
Brushy Creek Only
BC only. Need to calculate for
$0 $3,880,809 50 i SWI, Will County
$75,000 $75.000 $75,000 Estimated
Applied to caplet spending, or
$80,490
$80,490 $80,490 used to reduce CP principal
$155,490 54,036,298 $155,490
($770,139) $3,110,669 ($770,139) 51,570,390
Total Impact of the FY 2010 LCRA Budget on the Closing Transaction; 51,326,912 This amount is owed to LORA
' per TRC meeting on 8-26-09, LCRA to defer work on Rabb House to Round Rock after Riese & Associates completes plans