R-09-12-03-8D1 - 12/3/2009RESOLUTION NO. R -09-12-03-8D1
WHEREAS, the Cities of Round Rock, Austin, and Cedar Park (the
"Cities"), the Lower Colorado River Authority ("LCRA"), and the
Brazos River Authority ("BRA") entered into a Wastewater Disposal
Contract dated October 1, 2000 regarding the ownership and operation
of the Brushy Creek Regional Wastewater System ("BCRWWS"), and
WHEREAS, the Cities of Round Rock and Cedar Park entered into
a Memorandum of Understanding ("MOU") with LCRA on June 3, 2009
regarding the steps to purchase the BCRWWS from the LCRA, and
WHEREAS, the Cities entered into a Purchase Agreement with
LCRA on September 10, 2009, whereby the LCRA agreed to transfer the
BCRWWS to the Cities on or about December 8, 2009, and
WHEREAS, there has been presented to the City Council of the
City of Round Rock a Master Contract for the ownership and operation
of the BCRWWS by the Cities, 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 Master Contract for the Financing,
Construction, Ownership and Operation of the Brushy Creek Regional
Wastewater System, a copy of same being attached hereto as Exhibit
"A" and incorporated herein for all purposes.
The City Council hereby finds and declares that written notice
of the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to
the public as required by law at all times during which this
Resolution and the subject matter hereof were discussed, considered
O:\wdox\SCC1nts\0112\0905\MONICIPAL\R91203D1.DOC/rmc
and formally acted upon, all as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended.
RESOLVED this 3rd day of December, 2009.
ATTEST:
SARA L. WHITE, City Secretary
2
ALAN MCGRAW, Mayor
City of Round Rock, Texas
EXHIBIT
I "An
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
Dated: December 8, 2009
TABLE OF CONTENTS
Page
RECITALS 1
ARTICLE I DEFINITIONS AND INTERPRETATIONS 1
Section 1.1 Definitions. 1
Section 1.2 Interpretation. 5
ARTICLE II PURPOSE AND DESCRIPTION OF THE SYSTEM 6
Section 2.1 Purpose of this Contract. 6
Section 2.2 General. 6
Section 2.3 System Described in Engineering Report. 6
Section 2.4 Permits and Approvals. 6
ARTICLE III SYSTEM ACQUISITION AND CONSTRUCTION 6
Section 3.1 General. 6
Section 3.2 Access to Cities. 6
Section 3.3 Easements 6
Section 3.4 Points of Entry 7
Section 3.5 System Design and Construction. 7
Section 3.6 Expansions. 7
Section 3.7 Other Capital Improvements and Emergency Repairs. 8
ARTICLE IV SYSTEM OWNERSHIP, OPERATION, AND
MAINTENANCE 8
Section 4.1 System Ownership 8
Section 4.2 System Operation and Management. 8
Section 4.3 Operations Committee 8
Section 4.4 Responsibilities of Operations Committee 9
Section 4.5 General Management of the System. 10
Section 4.6 Meetings of the Operations Committee. 10
Section 4.7 Attendance by Fern Bluff MUD and Brushy Creek MUD at
Operations Committee Meetings. 10
Section 4.8 Matters Requiring Unanimous Consent. 11
Section 4.9 Other Matters Not Requiring Unanimous Consent. 11
Section 4.10 Relationship of Operations Committee and Operator. 11
ARTICLE V RESERVED CAPACITIES 11
Section 5.1 Reserved Capacities in System Components. 11
i
Section 5.2 Transfer of Reserved Capacity. 12
Section 5.3 Documentation of Transferred Reserved Capacity. 12
Section 5.4 Wholesale Contracts 12
ARTICLE VI POINT(S)OF ENTRY 12
Section 6.1 Point(s) of Entry. 12
Section 6.2 Inflow and Infiltration. 12
ARTICLE VII WASTEWATER DISCHARGE 13
Section 7.1 Discharge Quality 13
ARTICLE VIII FLOW CALCULATIONS 13
Section 8.1 Unit of Measurement 13
Section 8.2 Annual Flow. 13
ARTICLE IX BUDGETS, FLOW CHARGES, CITY COVENANTS 13
Section 9.1 Operation and Maintenance Budget and Capital Expense
Budget. 13
Section 9.2 Monthly Flow Charges 14
Section 9.3 Annual Report 14
Section 9.4 Capital Expenses. 14
Section 9.5 How, When, and Where Payments are to be Made 14
Section 9.6 Source of Payment. 14
Section 9.7 Annual Budgeting by the Cities. 15
Section 9.8 Revenue Sources Pledged. 15
Section 9.9 General Covenants by Cities. 15
Section 9.10 City Rates, Fees, and Charges. 16
Section 9.11 Default. 16
Section 9.12 Unconditional Obligation to Make Payment 16
ARTICLE X COMPLIANCE WITH FEDERAL, STATE AND LOCAL
LAWS 17
Section 10.1 State or Federal Laws, Rules, Orders, or Regulations. 17
Section 10.2 City Cooperation 17
Section 10.3 Recordkeeping and Reporting. 17
ARTICLE XI NEGOTIATION AND MEDIATION OF DISPUTES 18
Section 11.1 Agreement Regarding Remedies 18
Section 11.2 Agreement to Negotiate First to Resolve Issues. 18
Section 11.3 Agreement to Mediate. 18
ii
Section 11.4 Presentation of Written Claim Regarding Disputes Not Resolved
by Negotiation. 19
Section 11.5 Performance During Mediation 19
Section 11.6 Appointment of Mediator. 19
Section 11.7 Rules for Mediation 19
Section 11.8 Arbitration. 20
ARTICLE XII SPECIAL PROVISIONS 20
Section 12.1 Contracts with Others in Relation to System 20
Section 12.2 Future Service to the City of Leander. 21
Section 12.3 Title to Wastewater. 21
Section 12.4 Reuse of Treated Effluent from the System. 21
ARTICLE XIII GENERAL PROVISIONS 22
Section 13.1 Participation by the Parties 22
Section 13.2 Insurance. 22
Section 13.3 Force Majeure. 23
Section 13.4 Term of Contract. 23
Section 13.5 Amendment and Modification. 23
Section 13.6 Addresses and Notice. 24
Section 13.7 Severability 24
Section 13.8 Remedies Upon Default. 24
Section 13.9 Venue. 25
Section 13.10 Statutory Authority 25
Section 13.11 Contract for Benefit of the Cities. 25
Section 13.12 Succession and Assignment. 25
Section 13.13 Incorporation of Preamble Recitals 25
Section 13.14 Entire Agreement. 25
Section 13.15 Applicable Law. 26
Section 13.16 Counterparts. 26
EXHIBIT A -System Components
EXHIBIT B -Description of the System
EXHIBIT C -K Friese Methodology for Winter Month Averaging
iii
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP AND
OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
THIS MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP,
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM (the
"Contract") is dated and entered into as of the 8th day of December, 2009, by and among the
City of Austin, Texas ("Austin"), the City of Cedar Park, Texas ("Cedar Park"), and the City of
Round Rock, Texas ("Round Rock") all home rule municipalities and political subdivisions of
the State (individually, the "City;" collectively, the "Cities").
RECITALS
Each City desires to accomplish the implementation of a regional wastewater collection,
treatment and disposal system for the benefit of the Cities.
The Cities, as of the date of this Contract, have purchased the Brushy Creek Regional
Wastewater System ("System") from the Lower Colorado River Authority.
The Cities desire to discharge wastewater from their individual wastewater collection
systems into the System in order to serve the wastewater needs of the Cities, to achieve
efficiencies of cost and operation and to protect and preserve the environment of the Brushy
Creek watershed.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the sufficiency of which are hereby conclusively acknowledged, and subject to the
terms and conditions hereinafter set forth, the Cities mutually undertake, promise, and agree as
follows:
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
Section 1.1 Definitions. In addition to the terms defined above, the following terms shall
have the meanings assigned to them below wherever they are used in this Contract, unless the
context clearly requires otherwise:
(a) "Annual Flow" means the amount of wastewater generated in each City's
service area delivered to the System on an annual basis as calculated in accordance with
Section 8.2.
(b) "Austin" means the City of Austin.
(c) "Capital Expenses" means all direct costs for the design, permitting,
construction and/or acquisition of Capital Improvements, including the costs of acquiring
any necessary easements, rights of way, or fee simple title to real property.
(d) "Capital Improvements" means physical improvements to or assets of the
System with an expected useful life of a minimum of three years and of the type
generally categorized as a capital improvement and/or a capital expense in individual
budgets of the Cities, including but not limited to repairs and/or replacement of damaged,
worn out or obsolete portions of the System and any new additions to or improvements
made to the System, including Expansions, Emergency Repairs, and other improvements
necessary for the System to meet or maintain Regulatory Requirements and/or improve
operations of the System for the benefit of the Cities.
(e) "Capital Expense Budget" means the annual amount budgeted as provided
in Article IX for all Capital Expenses during any Fiscal Year.
(f) "Cedar Park" means the City of Cedar Park.
(g) "Cities" means, collectively, the City of Cedar Park, Texas, the City of
Austin, Texas, and the City of Round Rock, Texas. "City" means, respectively, the City
of Cedar Park, Texas, the City of Austin, Texas, or the City of Round Rock, Texas.
(h) "City System" means and includes a respective City's existing combined
waterworks and wastewater disposal system through which it provides retail and/or
wholesale water and wastewater service in its Service Area, together with all future
extensions, improvements, enlargements, and additions thereto, including, to the extent
permitted by law, reclaimed water systems which are integrated with the waterworks or
wastewater disposal system, and all replacements thereof, provided however, to the
extent now or hereafter allowed by law, the term City System shall not include any
waterworks or wastewater facilities which are declared by a City not to be a part of the
City System of that City and which are hereafter acquired or constructed by that City
with the proceeds from the issuance of "Special Project Bonds," which are hereby
defined as being special revenue obligations of such City, which are not secured by or
payable from the net revenues of a respective City System, but which are secured by and
are payable solely from special contract revenues, or payments received by a City or any
other legal entity, or any combination thereof, in connection with such facilities; and such
revenues or payments shall not be considered as or constitute gross revenues of a
respective City System, unless and to the extent otherwise provided in the ordinance or
ordinances authorizing the issuance of such "Special Project Bonds."
(i)
"Contract" means this document.
(j) "Effective Date" means the day following the "Closing Date" as defined
in Section 6.1 of that one certain "Purchase Agreement for the Brushy Creek Regional
Wastewater System, by and among the Lower Colorado River Authority, Round Rock,
Cedar Park and Austin."
(k) "Emergency Repairs" means those unanticipated System repairs and
improvements that are not included in the Operations and Maintenance Budget or the
Capital Expense Budget but must be initiated immediately to avoid System failures that
threaten public health and safety and/or the environment. The costs and expenses for
Emergency Repairs may be considered either Capital Expenses or Operation and
Maintenance Expenses, as applicable.
(1) "Engineering Report" means the report prepared by PBS&J, on behalf of
the Lower Colorado River Authority, titled "BRA/LCRA Alliance Brushy Creek
Regional Wastewater System Engineering Report", dated October 29, 2000, incorporated
herein by reference, which describes the System and the System Components currently
contemplated, the estimated construction costs, the proposed construction schedule and
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 2
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
other pertinent matters, and any further supplements or amendments thereto as
contemplated herein.
(m) "EPA" means the United States Environmental Protection Agency.
(n) "Expansion" means an expansion, extension, or enlargement of any
System Component(s) which results in an increase in the capacity reservation for such
System Component(s) as identified in Exhibit A.
(o) "Fiscal Year" means the twelve (12) month period beginning on October 1
of each year and ending on September 30 of the following year.
(p)
Contract.
(q)
"Force Majeure" means that term as it is defined in Section 13.3 of this
"Month" means a calendar month.
(r) "Monthly Flow Charge" means the amount to be paid each Month by each
City calculated in accordance with Section 9.2 of this Contract.
(s) "Operation and Maintenance Expense" means all direct costs of operation,
maintenance, repair, rehabilitation, replacement and decommissioning of the System
including, but not limited to:
(1) costs of maintaining any permits or licenses necessary to own,
operate and maintain the System;
(2) costs such as, but not limited to, costs of labor, materials, utilities,
supervision, engineering, accounting, auditing, legal and professional services,
insurance, personnel, data processing and purchasing;
(3) costs of repairs and/or replacement of damaged, worn out or
obsolete portions of the System that are of a routine and/or recurring nature and
are, therefore, not considered a Capital Expense and as may be necessary to meet
and maintain Regulatory Requirements and/or serve to improve operations of the
System for the benefit of the Cities.
(4) such other costs or expenses as may be imposed upon the Cities in
connection with fulfillment of their obligations under this Contract because of
laws, regulations, or requirements of the State of Texas, the United States, or any
agency or governmental subdivision of the State of Texas or any agency of the
United States having jurisdiction;
(5) costs of any other tools, supplies, inventory, services and
equipment, together with other costs not otherwise included in this definition
necessary for proper operation and maintenance of the System; and
(6) payments made by the Cities in satisfaction of judgments resulting
from or settlement of claims not covered by insurance or not paid by one
particular City arising in connection with the ownership, operation or
maintenance of the System;
Depreciation shall not be considered an item of Operation and Maintenance
Expense.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 3
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(t) `Operation and Maintenance Budget" means the annual amount budgeted
as provided in Article IX for all Operation and Maintenance Expenses during any Fiscal
Year.
(u) "Operations Committee" means the committee created in Article IV of this
Contract.
(v) "Operator" means the entity with which the Cities contract to operate the
System. It is anticipated that the initial Operator will be the Brazos River Authority.
(w) "Plans and Specifications" means the plans and specifications prepared for
the System and as the same may be revised from time to time in accordance with this
Contract.
(x) "Point of Entry" means a point at which Wastewater from each City enters
the System.
(y) "Prudent Utility Practice" means any of the practices, methods, and acts,
in the exercise of reasonable judgment, in the light of the facts, including but not limited
to the practices, methods, and acts engaged in or approved by a significant portion of the
public utility industry prior thereto, known at the time the decision was made, that would
have been expected to accomplish the desired result at the lowest reasonable cost
consistent with reliability, safety, and expedition. It is recognized that Prudent Utility
Practice is not intended to be limited to the optimum practice, method, or act at the
exclusion of all others, but rather is a spectrum of possible practices, methods, or acts
which could have been expected to accomplish the desired result at the lowest reasonable
cost consistent with reliability, safety, and expedition.
(z) "Regulatory Requirements" means all federal and state laws, rules and
regulations governing the design, permitting and operation of municipal wastewater
treatment and disposal systems in the State of Texas, including but not limited to the
permits, rules, regulations and/or orders of the EPA, the TCEQ, and courts of competent
jurisdiction.
(aa) "Reserved Capacity" means the total quantity of Wastewater that a City is
entitled to deliver into any System Component during a Fiscal Year pursuant to this
Contract, or, alternatively, the percentage of capacity of a System Component that a City
is entitled to utilize in any System Component pursuant to this Contract, all as set forth in
Exhibit A.
(bb) "Round Rock" means the City of Round Rock.
(cc) "Service Area" means the following:
(1) For Round Rock, the area within its corporate limits or
extraterritorial jurisdiction as the same may exist from time to time;
(2) For Cedar Park, the area within its corporate limits or
extraterritorial jurisdiction as the same may exist from time to time and also
including the area within the Highlands at Mayfield Ranch Municipal Utility
District and the Parkside at Mayfield Ranch Municipal Utility District;
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 4
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(3) For Austin, that part of the area both (i) within its corporate limits
or extraterritorial jurisdiction as the same exist from time to time and (ii) which is
within the Brushy Creek watershed or other areas depicted on Figure 1 of the
Engineering Report,
(4) For Leander, that area both (i) within Leander's corporate limits
and extraterritorial jurisdiction as the same exist from time to time and (ii) which
is within the Brushy Creek watershed; provided Leander's Service Area will
initially include land that is within the corporate limits or extraterritorial
jurisdiction but outside of the Brushy Creek Watershed.
(dd) "Significant Industrial Users" has the meaning for that term as defined by
40 Code of Federal Regulations §403.3(t).
(ee) "System" means, collectively, the land interests and the improvements
described in the Engineering Report, and as shown on Exhibit B, together with any
Expansions and repairs and improvements made in conformance with this Contract.
Without limitation the System includes the facilities, lines, lift stations, and other
appurtenances in the System as described in the Engineering Report.
(ff) "System Component" means a specified facility comprising part of the
System as listed in Exhibit A for each segment of Wastewater collection line and the
Treatment Facilities.
(gg) "State" means the State of Texas.
(hh) "TCEQ" means the Texas Commission on Environmental Quality or its
successor agency.
(ii) "Treatment Facilities" means any Wastewater treatment and disposal
facilities acquired or constructed to comprise a part of the System, together with any
improvements, expansions, betterments, rehabilitations or replacements thereof.
(jj) "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, with no particle greater than
one-half (1/2) 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, or
inflow water from above the ground entering the System.
Section 1.2 Interpretation. The table of contents and caption headings of this Contract are
for reference purposes only and shall not affect its interpretation in any respect. Unless the
context otherwise requires, words of the masculine gender shall be construed to include
correlative words of the feminine and neuter genders and vice versa. Defined terms include the
plural and singular versions of the words. This Contract and all the terms and provisions shall be
liberally construed to effectuate the purpose set forth herein and to sustain the validity of this
Contract.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 5
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
ARTICLE II
PURPOSE AND DESCRIPTION OF THE SYSTEM
Section 2.1 Purpose of this Contract. The purpose of this Contract is to set forth the terms
and conditions under which the Cities will finance, construct, acquire, own, maintain and operate
the System. This Contract also sets forth in general terms the manner in which the Cities will
share the costs of constructing, owning, operating, and maintaining the System. However, each
City is not required to use the System for the treatment of Wastewater for any portion of its
respective Service Area.
Section 2.2 General. The System will be used for receiving, transporting, treating and
disposing of Wastewater for the Cities generated within each City's respective Service Area. The
Cities will design, acquire, construct, expand, extend, enlarge, improve and repair the System
from time to time, as they deem necessary as described herein.
Section 2.3 System Described in Engineering Report. The System shall be constructed as
described in the Engineering Report and this Contract. The Cities shall exercise due diligence to
complete the acquisition and construction of the System as set forth in the Engineering Report
and this Contract.
Section 2.4 Permits and Approvals. The Cities shall jointly obtain and hold all permits and
approvals required for acquisition, construction, operation, and ownership of System. The
Operator may also be named on such permits and approvals upon agreement of the Cities.
ARTICLE III
SYSTEM ACQUISITION AND CONSTRUCTION
Section 3.1 General. Unless otherwise required by law, each consent, approval, or other
official action required of the Cities by any provision of this Contract shall be conclusively
deemed in compliance with this Contract when written evidence of such action, signed by the
respective authorized representative, is delivered to the party who is to receive evidence of such
action, unless otherwise specified herein. The Cities will cooperate with each other in the
design, financing, acquisition, and construction of the System and, the Cities will not take any
action or fail to take any action, if taking or failing to take such action, would unreasonably delay
or obstruct the completion, or impair the operation, of the System.
Section 3.2 Access to Cities. If any facility, pipeline, or appurtenance of the System is
installed in any street, alley, or public way within the boundaries of a City, as same is now
constituted or as may hereafter be extended, such City hereby grants to the System, upon
complying with such City's franchise ordinances or other provisions as applied to similar
entities, the right, privilege, and franchise of using such street, alley, or public way for the
purposes of maintaining, operating, laying, repairing, or removing such facility, pipeline, or
appurtenance.
Section 3_3 Easements. Each City hereby agrees to grant to the System such easements as
may be reasonably necessary for the purposes of placing, constructing, operating, repairing,
maintaining, rebuilding, replacing, relocating, and removing wastewater lift stations, lines and
related facilities upon, over, across and through the City's property and giving to System, all of
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 6
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
the rights and benefits necessary or appropriate for the full enjoyment and use of the easement,
including but without limiting the same, to the free right of ingress and egress to and from the
City's property, subject to the City's ordinances. Each City agrees to use its eminent domain
powers, subject to its governing body's approval, to obtain any easement necessary for the
operation and maintenance of the System that is located within that City's Service Area.
Section 3.4 Points of Entry. Each City shall have the sole responsibility, at its own cost and
expense, for providing additional pipelines and other facilities required for transporting its
wastewater to one or more Points of Entry.
Section 3.5 System Design and Construction. The Cities shall jointly fund, in accordance
with their Reserved Capacity, and make decisions concerning the design and construction of the
System as described in the Engineering Report. The Engineering Report may be amended and
updated from time to time, to reflect final design and construction changes in the System and to
reflect further actions and understandings of the Cities. The Cities agree that they shall
cooperate to facilitate timely municipal plan review and permitting, and other construction
related matters for construction related to the System located in the City's regulatory jurisdiction.
Section 3.6 Expansions. Each City shall have the right to commence an Expansion under the
provisions of this Contract as set forth in this Section.
(a) Requests for Expansion. At any time, any City may request that an
Expansion be made. In addition, when a City's Annual Flow reaches seventy-five
percent (75%) of the Reserved Capacity of that City in a System Component, that City
shall be deemed to have requested the Cities to commence planning and design for an
appropriate Expansion of that System Component, unless the City's anticipated growth
does not warrant making the Expansion and such determination is agreed upon by the
Cities. When a City's Annual Flow reaches ninety percent (90%) of the Reserved
Capacity of that City in a System Component, that City shall be deemed to have
requested commencement of construction of an appropriate Expansion of that System
Component, unless the City's anticipated growth does not warrant making the Expansion
and such determination is agreed upon by the Cities. During the term of this Contract,
the Cities agree to request Expansions for all of their Wastewater service needs in their
respective Service Areas. Under no circumstances shall a City exceed the Reserved
Capacity of that City in a System Component. If a City exceeds the Reserved Capacity
of that City in a System Component, then the City must immediately take actions to
reduce its Wastewater flows or expand any affected System Components at that City's
sole cost.
(b) Expansion Planning. Should any City request in writing, or be deemed to
have requested an Expansion pursuant to the above paragraph, the other Cities shall,
within forty-five (45) days after such request, determine whether they are willing to
participate in the Expansion. By the end of the forty-five day review period, the
City(ies) participating in an Expansion shall notify the Operations Committee of such
participation. Any City may move forward with an Expansion even if no other Cities
participate in such Expansion. The City(ies) participating in an Expansion must ensure
that the Expansion minimizes any negative impacts to the non -participating Cities and
will coordinate with the Operations Committee regarding planning, design and
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 7
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
construction of the Expansion. The Operations Committee shall have the opportunity to
timely review and comment on the preliminary design, final plans and specifications, and
other construction related matters as appropriate regarding the Expansion. The City(ies)
requesting or deemed to request an Expansion are financially responsible for the design,
construction, and inspection of the Expansion in accordance with this Contract and agree
to provide periodic updates of the Expansion to the Operations Committee.
(c) Separate Agreement for Expansion. The Cities will negotiate and enter
into a separate interlocal agreement providing the terms and conditions for any
Expansion, including, but not limited to capacity reservations for the Expansion, cost
allocations, timing and method of payment, design, permitting, contract award, and
management. Costs of the Expansion will be allocated among the Cities based on the
prorata shares of the capacity reservations of each City participating in the Expansion.
Upon completion of construction, the Expansion will be part of the System, and the
Reserved Capacity of the Expansion will be allocated to and reserved for each
participating City based on the provisions of the interlocal agreement. The interlocal
agreement shall also adopt a new Exhibit A showing the capacity allocation for the
expanded System Component(s). Any non -participating Cities shall join the interlocal
agreement for the purposes of approving the revised Exhibit A.
(d) Non -participating Cities. The non -participating City(s) will fully cooperate
with the participating City(s) in efforts to obtain necessary governmental and regulatory
approvals and permits for the Expansion and will use their best efforts to provide
assistance in this regard, which shall be paid for solely by the requesting City(s).
Section 3.7 Other Capital Improvements and Emergency Repairs. Costs and expenses
associated with Capital Improvements, other than Expansions, shall be planned for and funded
through the Capital Expense Budget or the Operations and Maintenance Budget, as applicable, in
the process set out in Article IX herein or as otherwise agreed to by the Cities. Emergency
Repairs shall be identified and reported to the Operations Committee, and the Operations
Committee shall determine the method and party responsible for completing such repair and the
source of funding for the repair on a case by case basis.
ARTICLE IV
SYSTEM OWNERSHIP, OPERATION, AND MAINTENANCE
Section 4_1 System Ownership. The System shall be owned by the Cities in proportion to
their reserved capacities in each System Component as shown in Exhibit A. Each City,
respectively, shall have the exclusive right to its reserved capacity in each System Component.
Each City shall have the right of entry to any System Component at any time with notice
provided to the Operator.
Section 4.2 System Operation and Management. The Cities shall contract with an Operator
to manage, operate, and maintain the System in accordance with Prudent Utility Practice and
Regulatory Requirements.
Section 4.3 Operations Committee. The Cities hereby create an Operations Committee to be
composed of the following members:
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 8
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(a) Two representatives appointed by Cedar Park;
(b) Two representatives appointed by Round Rock; and
(c) Two representatives appointed by Austin.
Each City shall have one vote for decision-making purposes on the Operations Committee.
The Operations Committee shall represent the individual and collective interests of the Cities and
shall consult with and advise the Cities, through their respective City Managers or other
designated representative. The City of Round Rock shall select the Chair of the Operations
Committee who will be responsible for calling and coordinating Operations Committee
meetings, drafting and circulating meeting agendas and circulating other documents to
Committee members necessary for the proper functioning of the Committee. The City Manager
or designee of each City shall appoint appropriate city staff members as the City's
representatives (and alternate representatives to serve in the absence of the City's
representatives) to the Operations Committee promptly after execution of this Contract, and shall
immediately notify the other Parties of such appointment. Each representative (or alternate
representative) shall serve as a member of the Operations Committee at the will of the City
Manager or designee who appointed such representative. Upon the death, resignation or
revocation of the power of a City's representative (or alternate representative), the City Manager
or designee of such City shall promptly appoint a new representative (or alternate representative)
as a member of the Operations Committee.
Section 4.4 Responsibilities of Operations Committee. The Operations Committee shall
provide oversight and direction for the System and the Operator on the following issues:
(a) Provision of an agenda, minutes, and action items for the Operations
Committee meetings;
(b) Verifications of flow allocations of each City;
(c) The Operator of the System;
(d) Points of Entry to the System;
(e) Approval of reuse water (treated wastewater effluent) facilities to be
connected to the System;
(f)
(g)
Design criteria and specifications;
The operation and maintenance of the System;
(h) The addition of new owners of the System and the terms and conditions
of the agreements with such new owners consistent with the provisions of this Contract;
(i) Review of the budgets, prior to submission to the Cities;
(j) Review of the annual reports of the System;
(k) Improvements to and Expansions of the System;
(1) Review of and suggestions regarding proposals submitted to the Cities for
engineering services related to the System, including but not limited to inflow and
infiltration studies, flow metering projects, and compliance with Edwards Aquifer
Recharge Zone requirements;
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(m) Review of bids or proposals received for construction of System
Components, and make recommendations for contract award;
(n) Review of invoices received for the construction of Expansions to the
System, and make recommendations for the allocation and payment of such invoices;
(o) Recommendations for professional services consultants, including, but not
limited to, engineering and financial services;
(p)
Changes to the Engineering Report;
(q) Review of cash flow projections and provision of input as to the
assumptions contained therein;
(r) Wastewater treatment system process modifications;
(s) Contracts and contract amendments;
(t) Payment allocations and schedules;
(u) Reimbursement of City costs; and
Any other pertinent matters relating to the management of the System.
The Operations Committee shall meet at regular intervals to review the progress of construction
of the System and the ongoing operation of the System. The Operations Committee shall have
access to and may inspect at any reasonable time all physical elements of the System and all
records and accounts pertaining to the System. The Operations Committee shall be diligent,
prompt, and timely in reviewing, commenting, and acting on matters submitted to it.
Section 4_5 General Management of the System. Except as expressly provided in this
Contract, the oversight of the day-to-day operations of the System shall rest with the Operations
Committee.
Section 4.6 Meetings of the Operations Committee. The Operations Committee will hold
regular monthly meetings at times and places to be selected by the members. In addition, any
City may call a special meeting to be held at any time after they have given three (3) business
days' notice to all of the other members of the Operations Committee. Any member may waive
notice of or attendance at any meeting of the Operations Committee. At a meeting, the
Operations Committee will transact any business that may properly be brought before the
meeting. Any City may place an issue for discussion on the Operations Committee's agenda.
The Operations Committee may authorize action or may delay action regarding the agenda item
regardless if a City's member does not attend or send an alternate representative.
Section 4.7 Attendance by Fern Bluff MUD and Brushy Creek MUD at Operations
Committee Meetings. The Cities agree that Fern Bluff Municipal Utility District and Brushy
Creek Municipal Utility District may appoint one representative each to be provided notice of
and attend Operations Committee meetings to obtain information regarding the System and
provide advice and input on System operations and maintenance where appropriate. Such
representatives shall not constitute voting members of the Operations Committee and their
participation in Operations Committee meetings shall be advisory in nature.
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Section 4_8 Matters Requiring Unanimous Consent. The following matters will require the
unanimous consent of the Operations Committee and the Cities with respect to the System:
(a) amendments to the Engineering Report;
(b) selection of Operator;
(c) admission of a new owner for the System;
(d) approval of Operations and Maintenance Budget and Capital Expense
Budget; and
(e) attendance by third parties of Operations Committee meetings other than
the representatives of Fern Bluff MUD and Brushy Creek MUD as provided in Section
4.7.
If a dispute arises among the Cities with respect to any of the above matters, any City may
request mediation of the disputed matter in accordance with Article XI herein. If the disputed
matter involves the approval of the Operations and Maintenance Budget the System shall be
operated and payments shall be made by the Cities for Flow Charges in accordance with the
budgets as presented by the Operator until such time as the dispute is resolved through mediation
or otherwise and the budget is adjusted (or not). If the disputed matter involves the approval of
the Capital Expense Budget, and if the disputing party is paying the majority of the Capital
Expense in dispute, such Capital Expense shall not be included in the Capital Expense Budget
until such time as the dispute is resolved through mediation or otherwise. If the disputing party
is not paying the majority of the Capital Expense in dispute, the Capital Expense shall be
included in the Capital Expense Budget.
Section 4.9 Other Matters Not Requiring Unanimous Consent. For other matters related
to the System not listed in Section 4.8, the Operations Committee and the Cities shall endeavor
to reach a consensus on action to be taken with respect to the System provided that such action
shall not unreasonably harm any City and the System will continue to be operated and
maintained in accordance with Regulatory Requirements and Prudent Utility Practices. Any City
may request mediation of the disputed matter in accordance with Article XI herein.
Section 4.10 Relationship of Operations Committee and Operator. The Cities agree that
the delegation of matters regarding System management and operation as between the
Operations Committee and the Operator shall be as set out in the agreement between the Cities
and the Operator.
ARTICLE V
RESERVED CAPACITIES
Section 5.1 Reserved Capacities in System Components. Each City, respectively, shall
have the exclusive right to its reserved capacity in each System Component as described in
Exhibit A. No Reserved Capacity may be allocated to or used by another City other than the City
on whose behalf that capacity has been reserved, unless the affected City specifically agrees in
writing to the allocation or use.
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Section 5.2 Transfer of Reserved Capacity. Any City may transfer any portion of its
reserved capacity in one or more System components to another City, in exchange for such
consideration as such Cities shall deem appropriate. The Cities making such transfer shall
provide written notice to other City, signed by the Cities making the transfer, specifying the
amount of transferred reserved capacity and the affected System Component(s), and providing
that the Cities otherwise ratify and confirm their pre-existing obligations under this Contract. No
such transfer shall be effective until and unless such notice is provided. The Operations
Committee must be timely notified of such transfer, but the transfer is not subject to the approval
of the Operations Committee.
Section 5.3 Documentation of Transferred Reserved Capacity. In the event that reserved
capacity is transferred, the Operations Committee shall cause a written update to be made to
Exhibit A describing such transfer and setting forth the revised reserved capacity of each City in
the System Component. Such action shall not require an amendment to this Agreement.
Section 5_4 Wholesale Contracts. In the event that wastewater service is sold by a City to
another entity located within the City's Service Area which will contribute Wastewater to the
System, the City selling the wastewater service is solely responsible for the City's quantity and
quality of wastewater entering the System, the City's Reserved Capacity in each of the System
Components, and all rights and obligations stated herein. Such action is not subject to the
approval of the Operations Committee.
ARTICLE VI
POINT(S)OF ENTRY
Section 6.1 Point(s) of Entry. Each City shall deliver its Wastewater to one or more Point(s)
of Entry designated for each City. The Operations Committee shall maintain a map identifying
such Point(s) of Entry which it shall update from time to time as necessary to reflect the Point(s)
of Entry for each City. The Cities shall cooperate in good faith to design their respective Point(s)
of Entry to be at appropriate sizes and in appropriate locations to receive the City's Reserved
Capacities. Each City shall have the exclusive right to designate and deliver Wastewater to its
Point(s) of Entry and shall provide written notification to the Operations Committee of any new
Point of Entry it proposes, including a map showing such location. Such written notice shall be
provided in a reasonable amount of time to allow the Operations Committee to take such action
as may be necessary to accommodate such new Point of Entry.
Section 6.2 Inflow and Infiltration. Each City shall use its commercially reasonable efforts
to minimize inflow and infiltration into that City's wastewater system that transports wastewater
to the System.
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ARTICLE VII
WASTEWATER DISCHARGE
Section 7.1 Discharge Quality. The Cities shall have the right to discharge Wastewater into
the System meeting the requirements of quality as set forth in the pretreatment program approved
by EPA and TCEQ for the System and of which the System is capable of handling. Each City
agrees to implement and enforce the System pretreatment program for its Service Area. Each
City also covenants that it will have in effect and will enforce a sewer use ordinance in
accordance with EPA and TCEQ's regulations or regulations of other governmental agencies
having jurisdiction to set standards for waste discharges. Furthermore, each City shall, at any
reasonable time upon request by another City, produce pretreatment program records for its
Service Area for review. Each City also agrees that no new Significant Industrial User shall be
allowed to connect to the City's sewer system within its Service Area without prior notification
of the intent to connect being given by the City to the Operator. All Significant Industrial Users
that are customers of a City and located within its Service Area and outside the City's corporate
limits will also be required to obtain a sewer use permit.
ARTICLE VIII
FLOW CALCULATIONS
Section 8.1 Unit of Measurement. The unit of measurement for Wastewater delivered
hereunder shall be 1,000 gallons of water, U. S. Standard Liquid Measure.
Section 8_2 Annual Flow. The Cities agree that the methodology outlined in Exhibit C for
determining each City's "winter month average" shall be used to determine each City's Annual
Flow for the purposes of developing the Monthly Flow Charge for each City as provided herein.
To develop the Annual Flow, the "winter month average" for each City shall be multiplied by
twelve (12) to convert the month total to an annual total. Each City shall be responsible for
calculating its Annual Flow for the upcoming Fiscal Year and shall submit such calculations to
the Operations Committee for review and comment prior to submission to the Operator by May
15`h of each year.
ARTICLE IX
BUDGETS, FLOW CHARGES, CITY COVENANTS
Section 9.1 Operation and Maintenance Budget and Capital Expense Budget. As soon as
reasonably possible during the first partial Fiscal Year and not less than one hundred twenty
(120) days before commencement of each Fiscal Year, the Operator shall furnish to the Cities a
detailed estimate of Operations and Maintenance Expenses and Capital Expenses to be incurred
in the next ensuing Fiscal Year which it deems properly includable in the Operations and
Maintenance Budget and the Capital Expense Budget for the upcoming Fiscal Year. Not less
than ninety (90) days prior to each Fiscal Year, the Cities shall approve the Operation and
Maintenance Budget and the Capital Expense Budget for that Fiscal Year. The Cities shall use
diligent efforts so that Operation and Maintenance Expenses and Capital Expenses incurred by,
and ultimately paid by, the Cities are reasonable and justified.
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Section 9_2 Monthly Flow Charles. Each City shall be required to pay a Monthly Flow
Charge for use in meeting that Month's portion of the Operation and Maintenance Budget and
Capital Expense Budget. Simultaneously with the approval of this Contract, the Cities shall
approve an interim Operation and Maintenance Budget and Capital Expense Budget and
schedule of Monthly Flow Charges for the period of time between the Effective Date and
September 30, 2010. For each subsequent Operation and Maintenance Budget and Capital
Expense Budget adopted after the availability of the annual report required by Section 9.3,
below, that is for a Fiscal Year that follows a Fiscal Year during which Monthly Flow Charges
from a City have been payable hereunder, the Monthly Flow Charge amount estimated for the
subsequent Fiscal Year shall be adjusted upward or downward, as appropriate, to account for any
difference between the actual Operation and Maintenance Expenses and Capital Expenses and
those budgeted and estimated for the previously reported period.
The Monthly Flow Charge for each City for each Operation and Maintenance Budget and Capital
Expense Budget shall be 1/12th (or in the case of the initial Fiscal Year, the fraction obtained by
dividing 1 by the number of complete Months between the Effective Date and September 30,
2010) of the amount calculated by multiplying the Annual Flow for each City 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 Operation and Maintenance Budget and the Capital Expense Budget for the period
for which the calculation is being made, expressed in dollars, by the sum of all of the Cities'
Annual Flows into System, also expressed in thousands of gallons during the twelve (12) month
period ending on such April 30.
Section 9.3 Annual Report The Operations Committee may cause to be prepared an annual
report of the System each year to contain such matters and information as may be considered
necessary and useful by the Operations Committee, including actual Operations and Maintenance
Expenses incurred by the System for the preceding fiscal year.
Section 9.4 Capital Expenses. Capital Expenses shall be allocated among and borne by the
Cities in proportion to each City's respective reserved capacity in the System Component that is
the subject of the Capital Improvement as listed in Exhibit A. The Cities shall determine the
schedule for the funding and commencement of projects identified in the Capital Expense
Budget prior to the commencement of each fiscal year.
Section 9.5 How, When, and Where Payments are to be Made. The Cities agree to make
payments of the Flow Charges to the Operator as prescribed in the contract(s) between the Cities
and the Operator. Any other payments related to the System shall be addressed through the
Operations Committee.
Section 9.6 Source of Payment.
(a) Each City represents and covenants that all payments to be made by it
under this Contract shall constitute reasonable and necessary "operating expenses," as
defined in Texas Government Code, Chapter 1502, as amended, of its City System, but
only to the extent of the payments, and the Cities shall not be obligated to make the
payments under this Contract from any source other than the gross revenues of its City
System. Each City further represents that its governing body has determined that the
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services to be provided by the System are necessary and essential to the treatment of
wastewater for such City.
(b) Each City agrees to fix and collect such rates and charges for services to
be supplied by its City System as will produce gross revenues at all times during the term
of this Contract in an amount at least equal to (i) all of the expenses of operation and
maintenance of its City System, including specifically its payments under this Contract
and (ii) all other amounts as required by law and the provisions of the ordinances or
resolutions authorizing its bonds or other obligations now or hereafter outstanding and
payable, in whole or in part, from the net revenues of its City System.
(c) No ad valorem tax revenues of any City shall be pledged to the payment of
any amounts to be paid by the Cities under this Contract, nor shall the Cities have the
right to demand payment of any amounts to be paid by the City under this Contract be
paid from funds raised or to be raised from ad valorem taxation from the City. The
obligations under this Contract shall never be construed to be a debt or pecuniary
obligation of the City of such kind as to require the City to levy and collect an ad valorem
tax to discharge its obligations.
Section 9.7 Annual Budgeting by the Cities. Each City shall make provision in each of its
annual budgets and shall appropriate an amount sufficient, at a minimum, for the payment of all
amounts required to be paid by the City under this Contract.
Section 9.8 Revenue Sources Pledged. Each City hereby pledges gross revenues of its City
System to the payment of its obligations under this Contract
Section 9.9 General Covenants by Cities. Each City further represents, covenants and
agrees that in accordance with and to the extent permitted by law, it will comply with the
covenants listed below.
(a) Performance. Each City will faithfully perform at all times any and all
covenants, undertakings, stipulations, and provisions contained herein; and it will, at the
time and in the manner prescribed, deposit or cause to be deposited the amounts required
to be deposited into the fund and accounts created by ordinances, but only from and to
the extent of the sources of funds described in such ordinances.
(b) Legal Authority. Each City is a home rule city of the State and is
authorized under the laws of the State to enter into this Contract. By execution hereof,
each City represents that all actions on its part for the execution and delivery of this
Contract have been effectively taken; and that this Contract is a valid and enforceable
special obligation of the City in accordance with its terms.
(c) Acquisition and Construction; Operation and Maintenance. Each City
shall at all times use its best efforts to operate or cause to be operated its City System
properly and in an efficient manner, consistent with Prudent Utility Practice, and shall
use its best efforts to maintain, preserve, reconstruct and keep the same or cause the same
to be so maintained, preserved, reconstructed and kept, with the appurtenances, in good
repair, working order and condition, and shall from time to time make, or use its best
efforts to cause to be made, all necessary and proper repairs, replacements, and renewals
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so that at all times the operation of its City System may be properly and advantageously
conducted.
(d) Books, Records, and Accounts. Each City shall keep proper books,
records, and accounts separate and apart from all other records and accounts, in which
complete and correct entries shall be made of all transactions relating to its City System,
and it shall cause said books and accounts to be audited annually as of the close of each
Fiscal Year.
(e) Governmental Agencies. Each City will comply with all of the terms and
conditions of all franchises, permits, and authorizations applicable to or necessary for a
respective City System, and which have been obtained from any governmental entity, and
the Cities have or will obtain and keep in effect all franchises, permits, authorizations,
and other requirements applicable to or necessary with respect to the acquisition,
construction, equipment, operation, and maintenance of a respective City System.
Section 9.10 City Rates, Fees, and Charges. Each City has the right under applicable law to
assess, charge and collect such City impact fees, capital recovery fees, connection fees, meter
fees, or other service fees, rates, taxes or other charges as it deems appropriate. This Contract
shall not be construed to require (except as provided otherwise in this Section), limit or restrict
the exercise of the governmental power of any City to implement the same. Each City 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 City elects to charge
are in compliance with applicable law. Each City agrees to establish and collect such 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 9.11 Default.
(a) Monetary Defaults by Cities. The deadline for payments of the Monthly
Flow Charge required herein, and interest due on overdue amounts shall be governed by
the provisions of Chapter 2251 of the Texas Government Code.
(b) Other Defaults by Cities. In the event that any City defaults in the
performance of any of its respective obligations under this Contract, other than the
obligation to make payments of the Monthly Flow Charge, any of the non -defaulting
parties, after giving reasonable notice of the default and opportunity to cure same, may
exercise any remedy provided by law, as set forth in Section 13.8 below.
Section 9.12 Unconditional Obligation to Make Payment. Recognizing the fact that the
Cities urgently require the facilities and services of the System, and that such facilities and
services are essential and necessary for actual use and for standby purposes, each City hereby
waives all rights of set-off, recoupment, counterclaim, suspension, deferment, reduction, and
amendment, with respect to making its payments and any other direct or indirect recipients of
payments. Each City agrees that it shall make its appropriate payments and each City shall be
unconditionally obligated to pay its payments as provided and determined by this Contract,
regardless of whether or not the Cities actually acquire, construct, or complete the System or
System Components, whether due to Force Majeure or any other reason, regardless of any other
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provisions of this contract, or any other contract or agreement between any of the parties hereto.
This covenant is for the benefit of and enforceable by the Cities. By entering into this Contract
and performing its obligations under any Section of this Contract, each City does not release any
persons from or waive any claims against such persons that the City may have resulting from
actions by such persons contrary to that person's legal obligations.
ARTICLE X
COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS
Section 10.1 State or Federal Laws, Rules, Orders, or Regulations. This Contract is subject
to all applicable federal and State laws and any applicable permits, ordinances, rules, orders, and
regulations of any local, state, or federal governmental authority having or lawfully asserting
jurisdiction but nothing contained herein shall be construed as a waiver of any right to question
or contest any such law, ordinance, order, rule, or regulation in any forum having jurisdiction
and the Cities represent that, to the best of their knowledge, no provisions of any applicable
federal or State law, including the City Charters of the Cities, nor any permit, ordinance, rule,
order, or regulation of either party will limit or restrict the ability of any other party to carry out
their respective obligations under or contemplated by this Contract.
Section 10.2 Cooperation to Assure Regulatory Compliance. The Cities and the Operator
must comply with all federal, state, and local requirements to obtain permits, grants and
assistance for system construction, studies, etc.; therefore each City will cooperate with each
other and with the Operator in good faith at all times to assure compliance with any such
governmental requirements where noncompliance or non-cooperation by the City may subject
the Operator to penalties, loss of grants or other funds, or other adverse regulatory action. In
making the determinations called for herein, the Operator will covenant that such determinations
will be made only after informing the Operations Committee, after detailed studies of statistical
data available as to the need and feasibility have been made, and after consulting with engineers
and financial advisors. Each City will be kept advised at all times of planning and implementing
System repairs and improvements necessary to meet Regulatory Requirements.
Section 10.3 Recordkeeping and Reporting. The Cities shall insure that the Operator
maintains records on site in accordance with applicable State laws.
(a) Records to be maintained by the Operator include, but are not limited to:
(i)
systems;
(ii) as applicable, copies of contracts made with each wastewater
customer, vendors, and consultants;
(iii) records of volume of treated water delivered to each water user per
delivery;
(iv) water quality analyses;
(v) as -built plans, easements, agreements, and leases concerning the
access, operations, and maintenance of the System;
copies of notifications made to the TCEQ concerning wastewater
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(vi) billing documents and all budgets;
(vii) design criteria and specifications;
(viii) compliance reports;
(ix) documentation of facts and cause analysis of any overflows;
(x) written assessments of the System made by the Operator;
(xi) documents related to Points of Entry into the System;
(xii) documentation of repairs and rehabilitation of the System;
(xiii) documentation of maintenance of equipment and vehicles;
(xiv) comprehensive asset list;
(xv) documentation of safety issues and actions;
(xvi) internal and vendor inspection reports; and
(xvii) documentation of inflow and infiltration studies and actions.
(b) The Operator shall report to the TCEQ as required by law. All costs of
compliance with the rules of the TCEQ shall be considered an Operation and
Maintenance Expense.
ARTICLE XI
NEGOTIATION AND MEDIATION OF DISPUTES
Section 11.1 Agreement Regarding Remedies. The Cities agree that their respective
obligations under this Contract are unique and recognize that they may be issuing bonds to
acquire, construct, expand, improve or replace the System. The failure by any City to perform its
obligations under this Contract would not be capable of being appropriately remedied by award
of damages to any other affected party to this Contract and in any event, such damages would be
difficult, if not impossible, to determine because of the unique nature of the Cities' obligations to
each other hereunder. Further, the Cities agree that the remedy of termination of this Contract by
any City is inappropriate and not in the public interest. Therefore, the Cities 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 Contract. The Cities 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.
Section 11.2 Agreement to Negotiate First to Resolve Issues. The Cities agree to attempt
first to resolve disputes concerning this Contract amicably by promptly entering into negotiations
in good faith. The Cities agree that they will not refer any dispute to another dispute resolution
procedure including mediation 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 11.3 Agreement to Mediate. If any dispute cannot be resolved through good faith
negotiation, then the Cities shall endeavor to resolve the dispute by mediation as provided herein.
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Section 11.4 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, any City
may at any time give formal written notice to another City of a "claim." A "claim" as used
herein means a demand or assertion by one of the Cities (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 Contract or any other dispute or
matter in question among the Cities arising out of or related to this Contract. Such notice shall
be in writing. After such notice is given, the dispute resolution procedure provided for below
shall immediately enter into effect.
Section 11.5 Performance During Mediation. The claimant shall continue with performance
under this Contract pending mediation of the dispute.
Section 11.6 Appointment of Mediator. Promptly following the making of a written claim by
any City, the Cities will consult with one another to agree on the appointment of a mediator
acceptable to all Cities. The mediator shall have experience in matters of the kind giving rise to
the claim. If within five (5) business days the Cities are unable to agree on the appointment of a
mediator, then any City may request the appointment of a mediator by the Center for Public
Policy Dispute Resolution at the University of Texas at Austin School of Law. The Cities 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 Cities agree to utilize the
mediator 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.
Section 11.7 Rules for Mediation The Cities agree to the following stipulations concerning
the conduct of the mediation:
(a) The mediator shall be impartial among the Cities and shall have no
conflict of interest.
(b) The mediator shall not have any past, present or anticipated financial
interest in the Contract or the System except for the payment for services as mediator nor
shall the mediator have been previously employed or acted as a consultant, attorney,
employee, engineer, architect, contractor or subcontractor of any City nor have any
present or anticipated future engagement of the kind described. Before the engagement
of the mediator is finalized, the mediator shall provide to the parties a disclosure
statement containing a resume of experience, and a description of past, present or
anticipated future relationships to the System and the Cities, their engineers, contractors,
subcontractors, attorneys, architects, or consultants.
(c) The mediation shall be held at a time and location mutually agreeable to
the Cities and the mediator provided, however, that the mediation shall commence no
later than fifteen (15) business days following the confirmation of appointment.
(d) At least ten (10) business days prior to the mediation, the claimant shall
submit to the other Cities and the mediator 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 mediation, the responding Cities
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shall submit their written response to the claimant's statement and provide a summary of
their arguments in response.
(e) If the Cities agree that independent expert or technical advice would be
helpful in facilitating a negotiated resolution of the dispute, the mediator may make
arrangements to obtain such advice, and may, with the agreement of the Cities, 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 Cities with
respect thereto. The expenses of obtaining such independent advice or advisory opinion
shall be borne equally by the Cities.
(f) No City shall engage in any private interview, discussion or argument with
the mediator concerning the subject matter of the mediation.
(g) The fees of the mediator and any other costs of administering the
mediation shall be borne equally by the Cities unless otherwise agreed among them in
writing.
(h) The mediator may promote settlement in any manner the mediator
believes appropriate at one or several mediation sessions as agreed to by the Cities. The
mediation shall continue only so long as desired by the parties and with the consent of all
of them.
(i) Mediation sessions shall be private unless otherwise required by law.
Persons other than the representatives of the Cities may attend mediation sessions only
with the permission of all Cities and the consent of the mediator.
(j) All communications made in the course of the mediation 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.
Section 11.8 Arbitration. If a dispute arising pursuant to this Contract is not resolved through
mediation as described in this article, the matter may be referred to binding arbitration upon the
unanimous agreement of the Cities under terms and conditions to which the Cities agree. If the
Cities do not agree to such arbitration, the Cities may pursue such other remedies as may be
available to them in law or equity and as provided in this Contract.
ARTICLE XII
SPECIAL PROVISIONS
Section 12.1 Contracts with Others in Relation to System
(a) Each City shall have the right to enter into contracts with other persons
natural or corporate, private or public, to receive Wastewater from such persons that are
located within each respective City's Service Area. Each City covenants that it will
advise the other Cities and the Operator of all such written contracts and will, if requested
by another City or the Operator, furnish such City or Operator with a list of all customers
other than retail residential, and commercial customers. Initially, within thirty (30) days
after execution of this Agreement, and thereafter for each calendar year during the tenure
hereof, each City will provide the other Cities by January 31st of each year an annual
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report containing the following data about each City's customers within the City's
Service Area 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;
classification, by number and percentage, of accounts according to the
following:
(i) residential;
(ii) multi -family;
(iii) business/commercial; and
(iv) other.
(4) if business or commercial connections, a copy of any City industrial waste
discharge permit issued to such premises.
Section 12.2 Future Service to the City of Leander. The Cities recognize and contemplate
the likelihood of Leander's joining the System in the future and acquiring Reserved Capacity for
Leander to serve the Leander Service Area at that time. In that regard, the Cities agree to
reasonably cooperate to obtain Leander's concurrence to enter into an agreement with the Cities
to receive service from the System.
(3)
Section 12.3 Title to Wastewater. Title to and interest in each City's Wastewater shall remain
with each City, respectively, at all times. One City shall not acquire any right or title to the other
Cities' respective Wastewater interests by virtue of this Contract and shall not otherwise assert
any ownership interest in any City's Wastewater rights.
Section 12.4 Reuse of Treated Effluent from the System. Any City may utilize treated
effluent from the System in accordance with this Section. There will be no charge for the treated
effluent; however, each City will be responsible for paying for all capital and operational costs
associated with its respective use for any treated effluent reuse facilities. Each City's allowable
withdrawal rates of treated effluent at any given time shall be in proportion to and not exceed
each City's Annual Flow as a percent of the total Annual Flow of all Cities in the Wastewater
Treatment Plants provided the Cities may contract between themselves for the reuse of effluent.
The Operations Committee shall be kept apprised routinely by the Operator, and any other City,
regarding actions taken or contemplated to be taken in regard to use of treated effluent, including
without limitation, plans, engineering reports and similar information verifying compliance with
the provisions of this Section.
All reuse facilities shall be constructed by the City for whose benefit the reuse facilities are
intended. Reuse facilities may be constructed on System property provided that the location of
the facilities will not impair the ability of System facilities or other Cities' reuse facilities to be
constructed in the future. Unless otherwise agreed by all Cities, title to any reuse facilities
located on System property shall be dedicated to the Cities for ownership and operation, but
responsibility for, construction costs and operation and maintenance costs of, and the right to the
use of, those facilities shall remain with the City(s) for whose benefit the reuse facilities exist.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 21
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
Round Rock's service area for treated effluent shall be Round Rock's Service Area and areas
outside of Cedar Park's and Austin's Service Areas. Cedar Park's service area for treated
effluent shall be Cedar Park's Service Area and areas outside of Round Rock's, and Austin's
Service Areas. Austin's Service Area for treated effluent shall be Austin's Service Area and
areas outside of Round Rock's, and Cedar Park's Service Areas. All Cities agree to not object to
any future water right bed and banks permit requests filed by any City for delivery of that City's
Contractual Flow of treated effluent from the East Plant.
ARTICLE XIII
GENERAL PROVISIONS
Section 13.1 Participation by the Parties. Each City represents to the others that it is
empowered by law to participate in the acquisition, construction, and financing of the System,
and to execute this Contract and other agreements and documents as are or may hereafter be
required to accomplish the same; and that its participation in the System and execution of this
Contract have been duly authorized by action of its governing body at a meeting conducted in
accordance with the Texas Open Meetings Act, as amended, Chapter 551, Texas Government
Code. Each City agrees to furnish to each other such documentation or evidence of its authority
to so participate and execute the contracts and other agreements as the other party may
reasonably request, and to take and perform such other and further actions and execute such
other agreements and documents as may be reasonably required to carry out the provisions of
this Contract.
Section 13.2 Insurance.
(a) The Cities agree to carry public liability insurance on the System for
purposes and in amounts which ordinarily would be carried by a privately owned utility
company owning and operating such facilities. The Cities shall also carry property
casualty insurance in the amount of the replacement value of all improvements and
personal property connected with the System (less a deductible comparable to the
deductible on the Cities' property insurance for Cities property generally). The amount
of each respective insurance shall exclude a proportionate share of the replacement value
equal to the portion thereof owned by Austin. The premiums for such insurance shall be
an operation and maintenance expense which shall be shared by the Cities, excluding
Austin. The proportionate charge to each of such Cities shall be based on their respective
portion of the reserved capacity and included in the Flow Charge. The City of Austin is
self insured and, in lieu of the above required insurance, may annually certify such fact
to the Operations Committee and not have the proportionate cost of insurance included in
its Flow Charge. In the event a liability claim or a casualty loss covered by the insurance
becomes payable by the Cities, Austin shall pay its proportionate share pursuant to its self
insurance plan.
(b) The Cities agree to require the contractor or contractors employed for
construction of the System to carry insurance coverage throughout the construction
period in at least the following amounts:
(i) Workers' Compensation: State law limits;
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 22
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(ii) General Liability (including contractual liability) and Automobile
Liability: One million dollars ($1,000,000.00) per person and per occurrence for
bodily injury and One million dollars ($1,000,000.00) for property damage;
(iii) Builder's Risk: full replacement value of improvements;
(iv) Performance and Payment Bond: full value of contract;
(v) Cost Overrun Insurance; and
(vi) Timely Completion Insurance.
The Cities shall be furnished with a certified copy of such effective policy of insurance
prior to commencement of construction. Such insurance policies shall name the Cities as
additional insureds, and the Cities shall be provided with a certificate of insurance
showing the required coverage and providing that the policies may not be canceled,
changed, or not renewed until the Cities have been given thirty (30) days prior written
notice of such event.
The insurance required by this section may be modified by written agreement of the
Cities, in accordance with good business practice. Any questions about the scope of
coverage required hereunder shall be resolved by written agreement between the Cities.
The Parties can agree to substitute an owner controlled insurance program for any of the
above specified insurance requirements.
Section 13.3 Force Majeure. By reason of "Force Majeure" any City is rendered unable
wholly or in part to carry out its obligations under this Contract, if that City gives 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, 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 wastewater systems or water supply and inability
on the part of such City to provide water necessary for operation of its water and wastewater
system hereunder, and impossibility by operation of law. 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 13.4 Term of Contract. This Contract shall be effective upon the day and year above
recited, and shall continue in effect until December 31, 2050.
Section 13.5 Amendment and Modification. This Contract shall not be amended except in
writing of all Parties hereto. No change, amendment, or modification of this Contract shall be
made or be effective which will affect adversely the prompt payment when due of all money
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 23
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
required to be paid by each City under the terms of this Contract and no such change,
amendment, or modification shall be made or be effective which would cause a violation of any
provisions of any bond resolution of another City.
Section 13.6 Addresses and Notice. Unless otherwise provided herein, any notice,
communication, request, reply, or advice (collectively, "Notice") hereunder provided or
permitted to be given, made, or accepted by any party to the other parties 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 prepaid telegram when appropriate,
addressed to the party to be notified. Notice deposited in the mail in the manner herein described
shall be conclusively deemed to be effective, unless otherwise stated herein, from and after the
expiration of three days after it is so deposited. Notice given in any other manner shall be
effective only when received by the party to be notified. For the purposes of notice, the addresses
of the Parties shall, until changed as herein provided, be as follows:
If to Cedar Park:
City Manager
600 North Bell Blvd.
Cedar Park, Texas 78613
If to Austin:
Director, Austin Water Utility
P.O. Box 1088
Austin, Texas 78767
If to Round Rock:
City Manager
221 E. Main St.
Round Rock, Texas 78664
The Cities hereto 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.
Section 13.7 Severabilitv. The Cities specifically agree that in case any part of this Contract
or the application of such part to any situation or circumstance should be held to be invalid or
unconstitutional, under the laws or constitutions of the State or the United States of America, or
in contravention of any such laws or constitutions, such invalidity, unconstitutionality, or
contravention shall not affect any other part of this Contract or the application of such part to any
other situation or circumstance, and it is intended that this Contract shall be severable and shall
be construed and applied as if any such invalid or unconstitutional section, subsection, provision,
clause, or word had not been included herein, and the rights and obligations of the Parties hereto
shall be construed and remain in force accordingly.
Section 13.8 Remedies Upon Default. It is not intended hereby to specify an exclusive
remedy for any default, but all such other remedies (other than termination) existing at law or in
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 24
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
equity may be availed of by any party hereto and shall be cumulative. Recognizing that failure in
the performance of the Cities' obligations hereunder could not be adequately compensated in
money damages alone, each City agrees in the event of any default on its part that the other
Cities shall have available to them the remedies of mandamus and specific performance in
addition to any other legal or equitable remedies (other than termination) which may also be
available to them. Notwithstanding anything to the contrary contained in this Contract, any right
or remedy or any default hereunder shall be deemed to be conclusively waived unless asserted by
a proper proceeding at law or in equity within two (2) years plus one (1) day after the occurrence
of such default. No waiver of any breach or default by any party hereto or of the performance by
any other party of any duty or obligation hereunder shall be deemed a waiver thereof in the
future, nor shall any such waiver be deemed or construed to be a waiver of subsequent breaches
or defaults of any kind under any circumstances.
Section 13.9 Venue. All amounts due under this Contract, including, but not limited to,
payments due under this Contract or damages for the breach of this Contract, shall be paid and be
due in Williamson County, Texas, which is the County in which the principal facilities of the
System are located. It is specifically agreed among the Cities that Williamson County, Texas, is
the place of performance of this Contract; and in the event that any legal proceeding is brought to
enforce this Contract or any provision hereof, the same shall be brought in Williamson County,
Texas.
Section 13.10 Statutory Authority. In entering into this Contract and performing all duties and
obligations hereunder, the Cities exercise their authority under and in accordance with the State
Constitution and laws including, but not limited to, Chapter 1502, as amended, Texas
Government Code; each City's respective Home Rule Charter; Chapter 1371, as amended, Texas
Government Code; and all other laws which may authorize this Contract, all of which provisions
and laws, cited or not cited herein, shall cumulatively provide the authority for this Contract.
Section 13.11 Contract for Benefit of the Cities. This Contract is made for the exclusive
benefit of the Cities only, and not for any third party or parties, such as Fern Bluff Municipal
Utility District and Brushy Creek Municipal Utility District, and such third parties may not assert
any rights or remedies under or by reason of this Contract.
Section 13.12 Succession and Assignment. This Contract is binding on and inures to the
benefit of the Cities hereto and their respective successors, representatives, and assigns. This
Contract may not be assigned by any party hereto without (i) complying with any provisions
relating to the right of the Parties to assign this Contract and (ii) prior written notice to and
approval by the other Cities, which consent may not be unreasonably withheld or delayed.
Section 13.13 Incorporation of Preamble Recitals. The recitals contained in the preamble
hereof are hereby found to be true, and such recitals are hereby made a part of this Contract for
all purposes and are adopted as a part of the judgment and findings of the Cities.
Section 13.14 Entire Agreement. This Contract constitutes the entire agreement among the
Cities with respect to the matters described herein.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 25
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
Section 13.15 Applicable Law. This Contract shall be governed by and construed in
accordance with the laws of the State, and the obligations, rights, and remedies of the Parties
hereunder shall be determined in accordance with such laws without reference to the laws of any
other state or jurisdiction, except for applicable federal laws, rules, and regulations.
Section 13.16 Counterparts. This Contract may be executed in counterparts, each of which
shall be an original and all of which together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the Cities hereto acting under authority of their respective governing
bodies have caused this Contract to be duly executed as of the day and year first above written.
** SIGNATURE PAGES TO FOLLOW **
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 26
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
CITY OF AUSTIN, TEXAS
By:
Rudy Garza, Assistant City Manager
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 27
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
CITY OF CEDAR PARK, TEXAS
By:
Bob Lemon, Mayor
Attest:
By:
LeAnn Quinn, City Secretary
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 28
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
CITY OF ROUND ROCK, TEXAS
By:
Alan McGraw, Mayor
Attest:
By:
Sara White, City Secretary
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 29
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
Exhibits
Exhibit A—System Components
Exhibit B—Description of the System
Exhibit C—K Friese Methodology for Winter Month Averaging
EXHIBITS
EXHIBIT B
THE SYSTEM
The Brushy Creek Regional Wastewater System as described in the Engineering Report prepared
by PBS&J on behalf of the Lower Colorado River Authority, titled BRA/LCRA Brushy Creek
Regional Wastewater System Engineering Report dated October 29, 2000;
The wastewater interceptor commonly known as the South Interceptor;
The wastewater interceptor commonly known as the Onion Creek Relief Interceptor; and
The wastewater interceptor commonly known as the Southwest Interceptor.
BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
WINTER WATER AVERAGING CALCULATION
Prepared for:
City of Round Rock
City of Cedar Park
City of Austin
Prepared by:
K Friese & Associates, Inc.
F-6535
1120 S. Capital of Texas Hwy
The Setting III, Ste. 100
Austin, Texas 78746
(512) 338-1704
September 22, 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
Water Averaging Summary spreadsheet and Winter Water Time Period Analysis are attached
(Exhibits 1 and 2).
Page 1 of 3
K# FRI ESE
& ASSOCIATES, INC:.
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 user, except for those listed below, 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, the existing meter in the
Regional System downstream of the facility and upstream of the first point -of -entry shall
be read during a 12 month period ending April 30. 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 12 month period ending April 30
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.
b. The bypass flow percentage calculated in (a.) shall then be multiplied by the total
winter month average flow, as calculated in A. above, contributing to the Water
Reclamation Facility. The calculated value is considered to represent the total winter
month average flow for the bypass flow.
Page 3 of 3
K* FR ESE
& AssociA,1 F43,
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.)
Page 3 of 3
K#FRIESE
& ASSC CCit r is, INC.
EXHIBIT 2. BILLING PERIODS REPORTED BY UTILITIES FOR WINTER WATER USAGE
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Corporate unwits
DATE: November 24, 2009
SUBJECT: City Council Meeting — December 3, 2009
ITEM: 8D1. Consider a resolution authorizing the Mayor to execute a Master Contract for
Financing, Construction, Ownership and Operation of the Brushy Creek Regional
Wastewater System with the Cities of Cedar Park and Austin.
Department:
Staff Person:
Water and Wastewater Utilities
Michael Thane, P.E., Director of Utilities
Justification:
In October 2000, the Cities of Round Rock, Austin, and Cedar Park, the Lower Colorado River Authority
(LCRA), and the Brazos River Authority (BRA) entered into a Wastewater Disposal Contract for the
ownership and operation of the Brushy Creek Regional Wastewater System (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 necessary steps in order for the Cities to purchase the BCRWWS
from the LCRA. Under the MOU, the parties agreed to enter into a Purchase Agreement by September
8, 2009 and that the closing of the purchase 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.
This Contract is for the ownership and operation of the BCRWWS by the Cities of Round Rock, Austin,
and Cedar Park. The Cities desire to discharge wastewater from their individual wastewater collection
systems into the BCRWWS in order to serve the wastewater needs of the Cities, to achieve efficiencies
of cost and operation and to protect and preserve the environment of the Brushy Creek watershed. This
Contract sets forth the terms and conditions under which the Cities will finance, construct, acquire, own,
maintain and operate the BCRWWS.
Strategic Plan Relevance:
Public Health and Safety Strategic Initiative
Goal 28.0 "Protect public health and protect the environment through proper waste disposal."
Funding:
Cost: N/A
Source of funds: Self -Financed Wastewater Construction
Outside Resources: Cities of Cedar Park and Austin
Public Comment: N/A
EXECUTED
DOCUMENT
FOLLOWS
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
Dated: December 8, 2009
TABLE OF CONTENTS
Page
RECITALS 1
ARTICLE I DEFINITIONS AND INTERPRETATIONS 1
Section 1.1 Definitions 1
Section 1.2 Interpretation. 5
ARTICLE II PURPOSE AND DESCRIPTION OF THE SYSTEM 6
Section 2.1 Purpose of this Contract. 6
Section 2.2 General. 6
Section 2.3 System Described in Engineering Report. 6
Section 2.4 Permits and Approvals. 6
ARTICLE III SYSTEM ACQUISITION AND CONSTRUCTION 6
Section 3.1 General. 6
Section 3.2 Access to Cities. 6
Section 3.3 Easements. 6
Section 3.4 Points of Entry. 7
Section 3.5 System Design and Construction. 7
Section 3.6 Expansions. 7
Section 3.7 Other Capital Improvements and Emergency Repairs 8
ARTICLE IV SYSTEM OWNERSHIP, OPERATION, AND
MAINTENANCE 8
Section 4.1 System Ownership. 8
Section 4.2 System Operation and Management. 8
Section 4.3 Operations Committee. 8
Section 4.4 Responsibilities of Operations Committee. 9
Section 4.5 General Management of the System. 10
Section 4.6 Meetings of the Operations Committee. 1 0
Section 4.7 Attendance by Fem Bluff MUD and Brushy Creek MUD at
Operations Committee Meetings. 10
Section 4.8 Matters Requiring Unanimous Consent. 11
Section 4.9 Other Matters Not Requiring Unanimous Consent 1 1
Section 4.10 Relationship of Operations Committee and Operator. 11
ARTICLE V RESERVED CAPACITIES 11
Section 5.1 Reserved Capacities in System Components. 1 1
Section 5.2 Transfer of Reserved Capacity 12
Section 5.3 Documentation of Transferred Reserved Capacity. 12
Section 5.4 Wholesale Contracts. 12
ARTICLE VI POINT(S)OF ENTRY 12
Section 6.1 Point(s) of Entry 12
Section 6.2 Inflow and Infiltration. 12
ARTICLE VII WASTEWATER DISCHARGE 13
Section 7.1 Discharge Quality. 13
ARTICLE VIII FLOW CALCULATIONS 13
Section 8.1 Unit of Measurement. 13
Section 8.2 Annual Flow 13
ARTICLE IX BUDGETS, FLOW CHARGES, CITY COVENANTS 13
Section 9.1 Operation and Maintenance Budget and Capital Expense
Budget. 13
Section 9.2 Monthly Flow Charges. 14
Section 9.3 Annual Report 14
Section 9.4 Capital Expenses. 14
Section 9.5 How, When, and Where Payments are to be Made. 14
Section 9.6 Source of Payment. 14
Section 9.7 Annual Budgeting by the Cities. 15
Section 9.8 Revenue Sources Pledged. 15
Section 9.9 General Covenants by Cities 15
Section 9.10 City Rates, Fees, and Charges 16
Section 9.11 Default 16
Section 9.12 Unconditional Obligation to Make Payment. 16
ARTICLE X COMPLIANCE WITH FEDERAL, STATE AND LOCAL
LAWS 17
Section 10.1 State or Federal Laws, Rules. Orders, or Regulations. 17
Section 10.2 City Cooperation 17
Section 10.3 Recordkeeping and Reporting 17
ARTICLE XI NEGOTIATION AND MEDIATION OF DISPUTES 18
Section 11.1 Agreement Regarding Remedies. 18
Section 1 1.2 Agreement to Negotiate First to Resolve Issues. 18
Section 11.3 Agreement to Mediate 18
ii
Section 11.4 Presentation of Written Claim Regarding Disputes Not Resolved
by Negotiation. 19
Section 11.5 Performance During Mediation. 19
Section 11.6 Appointment of Mediator. 19
Section 11.7 Rules for Mediation 19
Section 11.8 Arbitration. 20
ARTICLE XII SPECIAL PROVISIONS 20
Section 12.1 Contracts with Others in Relation to System 20
Section 12.2 Future Service to the City of Leander 21
Section 12.3 Title to Wastewater. 21
Section 12.4 Reuse of Treated Effluent from the System 21
ARTICLE XIII GENERAL PROVISIONS 22
Section 13.1 Participation by the Parties. 22
Section 13.2 Insurance. 22
Section 13.3 Force Majeure. 23
Section 13.4 Term of Contract. 23
Section 13.5 Amendment and Modification. 23
Section 13.6 Addresses and Notice. 24
Section 13.7 Severability. 24
Section 13.8 Remedies Upon Default. 24
Section 13.9 Venue. 25
Section 13.10 Statutory Authority. 25
Section 13.11 Contract for Benefit of the Cities. 25
Section 13.12 Succession and Assignment. 25
Section 13.13 Incorporation of Preamble Recitals. 25
Section 13.14 Entire Agreement. 25
Section 13.15 Applicable Law. 26
Section 13.16 Counterparts. 26
EXHIBIT A — System Components
EXHIBIT B — Description of the System
EXHIBIT C — K Friese Methodology for Winter Month Averaging
iii
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP AND
OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
THIS MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP,
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM (the
"Contract-) is dated and entered into as of the 8th day of December, 2009, by and among the
City of Austin. Texas (``Austin"), the City of Cedar Park, Texas ("Cedar Park"), and the City of
Round Rock. Texas ('`Round Rock") all home rule municipalities and political subdivisions of
the State (individually. the ``City:" collectively, the "Cities').
RECITALS
Each City desires to accomplish the implementation of a regional wastewater collection,
treatment and disposal system for the benefit of the Cities.
The Cities, as of the date of this Contract, have purchased the Brushy Creek Regional
Wastewater System (``System") from the Lower Colorado River Authority.
The Cities desire to discharge wastewater from their individual wastewater collection
systems into the System in order to serve the wastewater needs of the Cities, to achieve
efficiencies of cost and operation and to protect and preserve the environment of the Brushy
Creek watershed.
NOW, THEREFORE. in consideration of the mutual covenants and agreements herein
contained. the sufficiency of which are hereby conclusively acknowledged, and subject to the
terms and conditions hereinafter set forth, the Cities mutually undertake, promise, and agree as
follows:
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
Section 1.1 Definitions. In addition to the terms defined above, the following terms shall
have the meanings assigned to them below wherever they are used in this Contract, unless the
context clearly requires otherwise:
(a) "Annual Flow- means the amount of wastewater generated in each City's
service area delivered to the System on an annual basis as calculated in accordance with
Section 8.2.
(b) "Austin" means the City of Austin.
(c) "Capital Expenses- means all direct costs for the design, permitting,
construction and/or acquisition of Capital Improvements, including the costs of acquiring
any necessary easements, rights of way, or fee simple title to real property.
(d) "Capital Improvements- means physical improvements to or assets of the
System with an expected useful life of a minimum of three years and of the type
generally. categorized as a capital improvement and/or a capital expense in individual
budgets of the Cities, including but not limited to repairs and/or replacement of damaged,
worn out or obsolete portions of the System and any new additions to or improvements
made to the System, including Expansions, Emergency Repairs, and other improvements
necessary for the System to meet or maintain Regulatory Requirements and/or improve
operations of the System for the benefit of the Cities.
(e) "Capital Expense Budget- means the annual amount budgeted as provided
in Article IX for all Capital Expenses during any Fiscal Year.
(f) "Cedar Park" means the City of Cedar Park.
(g) `'Cities' means, collectively, the City of Cedar Park, Texas, the City of
Austin, Texas, and the City of Round Rock, Texas. "City' means, respectively, the City
of Cedar Park, Texas, the City of Austin, Texas, or the City of Round Rock, Texas.
(h) "City Systeme means and includes a respective City's existing combined
waterworks and wastewater disposal system through which it provides retail and/or
wholesale water and wastewater service in its Service Area, together with all future
extensions, improvements, enlargements, and additions thereto, including, to the extent
permitted by law, reclaimed water systems which are integrated with the waterworks or
wastewater disposal system. and all replacements thereof, provided however, to the
extent now or hereafter allowed by law. the term City System shall not include any
waterworks or wastewater facilities which are declared by a City not to be a part of the
City System of that City and which are hereafter acquired or constructed by that City
with the proceeds from the issuance of "Special Project Bonds,- which are hereby
defined as being special revenue obligations of such City, which are not secured by or
payable from the net revenues of a respective City System, but which are secured by and
are payable solely from special contract revenues, or payments received by a City or any
other legal entity. or any combination thereof, in connection with such facilities; and such
revenues or payments shall not be considered as or constitute gross revenues of a
respective City System, unless and to the extent otherwise provided in the ordinance or
ordinances authorizing the issuance of such "Special Project Bonds.-
(i) "Contract'. means this document.
(j} "Effective Date- means the day following the "Closing Date- as defined
in Section 6.1 of that one certain "Purchase Agreement for the Brushy Creek Regional
Wastewater System. by and among the Lower Colorado River Authority, Round Rock,
Cedar Park and Austin. -
(k) "Emergency Repairs. means those unanticipated System repairs and
improvements that are not included in the Operations and Maintenance Budget or the
Capital Expense Budget but must be initiated immediately to avoid System failures that
threaten public health and safety and/or the environment. The costs and expenses for
Emergency Repairs may be considered either Capital Expenses or Operation and
Maintenance Expenses, as applicable.
(1) "Engineering Report" means the report prepared by PBS&J, on behalf of
the Lower Colorado River Authority, titled "BRA/LCRA Alliance Brushy Creek
Regional Wastewater System Engineering Report- dated October 29. 2000, incorporated
herein by reference, which describes the System and the System Components currently
contemplated, the estimated construction costs. the proposed construction schedule and
MASTER CONTRACT FOR I HE I-INANCING_ CONSTRUCTION_ OWNERSHIP Page 2
AND OPERATION OF THE BRE :SHY CREEK REGIONAL WASTEWATER SYSTEM
other pertinent matters, and any further supplements or amendments thereto as
contemplated herein.
(m) "EPA" means the United States Environmental Protection Agency.
(n) "Expansion" means an expansion, extension, or enlargement of any
System Component(s) which results in an increase in the capacity reservation for such
System Component(s) as identified in Exhibit A.
(o) "Fiscal Year' means the twelve (12) month period beginning on October 1
of each year and ending on September 30 of the following year.
(p)
Contract.
"Force Majeure" means that tem as it is defined in Section 13.3 of this
(q) "Month" means a calendar month.
(r) "Monthly Flow Charge" means the amount to be paid each Month by each
City calculated in accordance with Section 9.2 of this Contract.
(s) "Operation and Maintenance Expense" means all direct costs of operation,
maintenance, repair, rehabilitation, replacement and decommissioning of the System
including, but not limited to:
(1) costs of maintaining any permits or licenses necessary to own,
operate and maintain the System;
(2) costs such as, but not limited to, costs of labor, materials, utilities,
supervision, engineering, accounting, auditing. legal and professional services,
insurance, personnel, data processing and purchasing;
(3) costs of repairs and/or replacement of damaged, worn out or
obsolete portions of the System that are of a routine and/or recurring nature and
are, therefore, not considered a Capital Expense and as may be necessary to meet
and maintain Regulatory Requirements and/or serve to improve operations of the
System for the benefit of the Cities.
(4) such other costs or expenses as may be imposed upon the Cities in
connection with fulfillment of their obligations under this Contract because of
laws, regulations, or requirements of the State of Texas. the United States, or any
agency or governmental subdivision of the State of Texas or any agency of the
United States having jurisdiction:
(5) costs of any other tools, supplies, inventory, services and
equipment. together with other costs not otherwise included in this definition
necessary for proper operation and maintenance of the System; and
(6) payments made by the Cities in satisfaction of judgments resulting
from or settlement of claims not covered by insurance or not paid by one
particular City arising in connection with the ownership. operation or
maintenance of the System.
Depreciation shall not be considered an item of Operation and Maintenance
Expense.
MASTER CONTRACT FOR THE FINANCING. CONSTRUCTION, OWNERSHIP
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
Pa�?e 3
(t) `Operation and Maintenance Budget" means the annual amount budgeted
as provided in Article IX for all Operation and Maintenance Expenses during any Fiscal
Year.
(u) "Operations Committee- means the committee created in Article IV of this
Contract.
(v) "Operator" means the entity with which the Cities contract to operate the
System. It is anticipated that the initial Operator will be the Brazos River Authority.
(w) "Plans and Specifications' means the plans and specifications prepared for
the System and as the same may be revised from time to time in accordance with this
Contract.
(x) "Point of Entry" means a point at which Wastewater from each City enters
the System.
(y) "Prudent Utility Practice- means any of the practices, methods, and acts,
in the exercise of reasonable judgment, in the light of the facts, including but not limited
to the practices, methods, and acts engaged in or approved by a significant portion of the
public utility industry prior thereto, known at the time the decision was made, that would
have been expected to accomplish the desired result at the lowest reasonable cost
consistent with reliability, safety, and expedition. It is recognized that Prudent Utility
Practice is not intended to be limited to the optimum practice, method, or act at the
exclusion of all others, but rather is a spectrum of possible practices, methods, or acts
which could have been expected to accomplish the desired result at the lowest reasonable
cost consistent with reliability, safety, and expedition.
(z) "Regulatory Requirements- means all federal and state laws, rules and
regulations governing the design, permitting and operation of municipal wastewater
treatment and disposal systems in the State of Texas, including but not limited to the
permits, rules, regulations and/or orders of the EPA, the TCEQ, and courts of competent
jurisdiction.
(aa) "Reserved Capacity" means the total quantity of Wastewater that a City is
entitled to deliver into any System Component during a Fiscal Year pursuant to this
Contract, or, alternatively, the percentage of capacity of a System Component that a City
is entitled to utilize in any System Component pursuant to this Contract. all as set forth in
Exhibit A .
(bb) "Round Rock" means the City of Round Rock.
(cc) "Service Area means the following:
(1) For Round Rock, the area within its corporate limits or
extraterritorial jurisdiction as the same may exist from time to time:
(2) For Cedar Park, the area within its corporate limits or
extraterritorial jurisdiction as the same may exist from time to time and also
including the area within the Highlands at Mayfield Ranch Municipal Utility
District and the Parkside at Mayfield Ranch Municipal Utility District;
MASTER CONTRACT FOR THE FINANCING. CONSTRUCTION_ OWNERSHIP
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWA"E E:R SYSTEM
Pane 4
(3) For Austin, that part of the area both (i) within its corporate limits
or extraterritorial jurisdiction as the same exist from time to time and (ii) which is
within the Brushy Creek watershed or other areas depicted on Figure 1 of the
Engineering Report,
(4) For Leander, that area both (i) within Leander's corporate limits
and extraterritorial jurisdiction as the same exist from time to time and (ii) which
is within the Brushy Creek watershed; provided Leander's Service Area will
initially include land that is within the corporate limits or extraterritorial
jurisdiction but outside of the Brushy Creek Watershed.
(dd) "Significant Industrial Users" has the meaning for that term as defined by
40 Code of Federal Regulations §403.3(t).
(ee) "System" means, collectively, the land interests and the improvements
described in the Engineering Report, and as shown on Exhibit B, together with any
Expansions and repairs and improvements made in conformance with this Contract.
Without limitation the System includes the facilities, lines, lift stations, and other
appurtenances in the System as described in the Engineering Report.
(ff) "System Component" means a specified facility comprising part of the
System as listed in Exhibit A for each segment of Wastewater collection line and the
Treatment Facilities.
(gg) "State" means the State of Texas.
(hh) "TCEQ" means the Texas Commission on Environmental Quality or its
successor agency.
(ii) "Treatment Facilities" means any Wastewater treatment and disposal
facilities acquired or constructed to comprise a part of the System, together with any
improvements, expansions, betterments, rehabilitations or replacements thereof.
(jj) "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. with no particle greater than
one-half (1/2) 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, or
inflow water from above the ground entering the System.
Section 1.2 Interpretation. The table of contents and caption headings of this Contract are
for reference purposes only and shall not affect its interpretation in any respect. Unless the
context otherwise requires, words of the masculine gender shall be construed to include
correlative words of the feminine and neuter genders and vice versa. Defined terms include the
plural and singular versions of the words. This Contract and all the terms and provisions shall be
liberally construed to effectuate the purpose set forth herein and to sustain the validity of this
Contract.
MASTER CONTRACT FOR THE FINANCING. CONSTRUCTION. OWNERSHIP
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
Page 5
ARTICLE II
PURPOSE AND DESCRIPTION OF THE SYSTEM
Section 2.1 Purpose of this Contract. The purpose of this Contract is to set forth the terms
and conditions under which the Cities will finance, construct, acquire, own, maintain and operate
the System. This Contract also sets forth in general terms the manner in which the Cities will
share the costs of constructing, owning, operating, and maintaining the System. However, each
City is not required to use the System for the treatment of Wastewater for any portion of its
respective Service Area.
Section 2.2 General. The System will be used for receiving, transporting, treating and
disposing of Wastewater for the Cities generated within each City's respective Service Area. The
Cities will design, acquire, construct, expand, extend, enlarge, improve and repair the System
from time to time, as they deem necessary as described herein.
Section 2.3 System Described in Engineering Report. The System shall be constructed as
described in the Engineering Report and this Contract. The Cities shall exercise due diligence to
complete the acquisition and construction of the System as set forth in the Engineering Report
and this Contract.
Section 2.4 Permits and Approvals. The Cities shall jointly obtain and hold all permits and
approvals required for acquisition, construction, operation, and ownership of System. The
Operator may also be named on such permits and approvals upon agreement of the Cities.
ARTICLE III
SYSTEM ACQUISITION AND CONSTRUCTION
Section 3.1 General. Unless otherwise required by law, each consent, approval, or other
official action required of the Cities by any provision of this Contract shall be conclusively
deemed in compliance with this Contract when written evidence of such action, signed by the
respective authorized representative, is delivered to the party who is to receive evidence of such
action, unless otherwise specified herein. The Cities will cooperate with each other in the
design, financing, acquisition_ and construction of the System and, the Cities will not take any
action or fail to take any action. if taking or failing to take such action, would unreasonably delay
or obstruct the completion, or impair the operation, of the System.
Section 3.2 Access to Cities. If any facility, pipeline, or appurtenance of the System is
installed in any street, alley, or public way within the boundaries of a City, as same is now
constituted or as may hereafter be extended, such City hereby grants to the System, upon
complying with such City -s franchise ordinances or other provisions as applied to similar
entities, the right, privilege, and franchise of using such street, alley, or public way for the
purposes of maintaining, operating, laying, repairing, or removing such facility. pipeline, or
appurtenance.
Section 3.3 Easements. Each City hereby agrees to grant to the System such easements as
may be reasonably necessary for the purposes of placing_ constructing, operating. repairing,
maintaining, rebuilding, replacing, relocating, and removing wastewater lift stations, lines and
related facilities upon, over, across and through the City's property and giving to System, all of
MASTER CONTRACT FOR THE FINANCING_ CONSTRUCTION. OWNERSHIP Pa e 6
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
the rights and benefits necessary or appropriate for the full enjoyment and use of the easement,
including but without limiting the same, to the free right of ingress and egress to and from the
City's property, subject to the City's ordinances. Each City agrees to use its eminent domain
powers, subject to its governing body's approval, to obtain any easement necessary for the
operation and maintenance of the System that is located within that City's Service Area.
Section 3.4 Points of Entry. Each City shall have the sole responsibility, at its own cost and
expense, for providing additional pipelines and other facilities required for transporting its
wastewater to one or more Points of Entry.
Section 3.5 System Design and Construction. The Cities shall jointly fund, in accordance
with their Reserved Capacity, and make decisions concerning the design and construction of the
System as described in the Engineering Report. The Engineering Report may be amended and
updated from time to time, to reflect final design and construction changes in the System and to
reflect further actions and understandings of the Cities. The Cities agree that they shall
cooperate to facilitate timely municipal plan review and permitting, and other construction
related matters for construction related to the System located in the City's regulatory jurisdiction.
Section 3.6 Expansions. Each City shall have the right to commence an Expansion under the
provisions of this Contract as set forth in this Section.
(a) Requests for Expansion. At any time, any City may request that an
Expansion be made. In addition, when a City's Annual Flow reaches seventy-five
percent (75%) of the Reserved Capacity of that City in a System Component, that City
shall be deemed to have requested the Cities to commence planning and design for an
appropriate Expansion of that System Component, unless the City's anticipated growth
does not warrant making the Expansion and such determination is agreed upon by the
Cities. When a City's Annual Flow reaches ninety percent (90%) of the Reserved
Capacity of that City in a System Component, that City shall be deemed to have
requested commencement of construction of an appropriate Expansion of that System
Component, unless the City's anticipated growth does not warrant making the Expansion
and such determination is agreed upon by the Cities. During the term of this Contract,
the Cities agree to request Expansions for all of their Wastewater service needs in their
respective Service Areas. Under no circumstances shall a City exceed the Reserved
Capacity of that City in a System Component. If a City exceeds the Reserved Capacity
of that City in a System Component, then the City must immediately take actions to
reduce its Wastewater flows or expand any affected System Components at that City's
sole cost.
(b) Expansion Planning. Should any City request in writing, or be deemed to
have requested an Expansion pursuant to the above paragraph, the other Cities shall,
within forty-five (45) days after such request, determine whether they are willing to
participate in the Expansion. By the end of the forty-five day review period. the
City(ies) participating in an Expansion shall notify the Operations Committee of such
participation. Any City may move forward with an Expansion even if no other Cities
participate in such Expansion. The City(ies) participating in an Expansion must ensure
that the Expansion minimizes any negative impacts to the non -participating Cities and
will coordinate with the Operations Committee regarding planning, design and
MASTER CONTRACT FOR THE FINANCING_ CONSTRUCTION. OWNERSHIP Page 7
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
construction of the Expansion. The Operations Committee shall have the opportunity to
timely review and comment on the preliminary design, final plans and specifications, and
other construction related matters as appropriate regarding the Expansion. The City(ies)
requesting or deemed to request an Expansion are financially responsible for the design,
construction, and inspection of the Expansion in accordance with this Contract and agree
to provide periodic updates of the Expansion to the Operations Committee.
(c) Separate Agreement for Expansion. The Cities will negotiate and enter
into a separate interlocal agreement providing the terms and conditions for any
Expansion, including, but not limited to capacity reservations for the Expansion, cost
allocations, timing and method of payment, design, permitting, contract award, and
management. Costs of the Expansion will be allocated among the Cities based on the
prorata shares of the capacity reservations of each City participating in the Expansion.
Upon completion of construction, the Expansion will be part of the System, and the
Reserved Capacity of the Expansion will be allocated to and reserved for each
participating City based on the provisions of the interlocal agreement. The interlocal
agreement shall also adopt a new Exhibit A showing the capacity allocation for the
expanded System Component(s). Any non -participating Cities shall join the interlocal
agreement for the purposes of approving the revised Exhibit A.
(d) Non -participating Cities. The non -participating City(s) will fully cooperate
with the participating City(s) in efforts to obtain necessary governmental and regulatory
approvals and permits for the Expansion and will use their best efforts to provide
assistance in this regard, which shall be paid for solely by the requesting City(s).
Section 3.7 Other Capital Improvements and Emergency Repairs. Costs and expenses
associated with Capital Improvements, other than Expansions, shall be planned for and funded
through the Capital Expense Budget or the Operations and Maintenance Budget, as applicable, in
the process set out in Article IX herein or as otherwise agreed to by the Cities. Emergency
Repairs shall be identified and reported to the Operations Committee, and the Operations
Committee shall determine the method and party responsible for completing such repair and the
source of funding for the repair on a case by case basis.
ARTICLE IV
SYSTEM OWNERSHIP, OPERATION, AND MAINTENANCE
Section 4.1 System Ownership. The System shall be owned by the Cities in proportion to
their reserved capacities in each System Component as shown in Exhibit A. Each City,
respectively, shall have the exclusive right to its reserved capacity in each System Component.
Each City shall have the right of entry to any System Component at any time with notice
provided to the Operator.
Section 4.2 System Operation and Management. The Cities shall contract with an Operator
to manage, operate, and maintain the System in accordance with Prudent Utility Practice and
Regulatory Requirements.
Section 4.3 Operations Committee. The Cities hereby create an Operations Committee to be
composed of the following members:
MASTER CONTRACT FOR THE FINANCING. CONSTRUCTION, OWNERSHIP Page 8
AND OPERATION OF THE BRUSHY CREEK REGIONAL_ WASTEWATER SYSTEM
(a) Two representatives appointed by Cedar Park;
(b) Two representatives appointed by Round Rock; and
(c) Two representatives appointed by Austin.
Each City shall have one vote for decision-making purposes on the Operations Committee.
The Operations Committee shall represent the individual and collective interests of the Cities and
shall consult with and advise the Cities, through their respective City Managers or other
designated representative. The City of Round Rock shall select the Chair of the Operations
Committee who will be responsible for calling and coordinating Operations Committee
meetings, drafting and circulating meeting agendas and circulating other documents to
Committee members necessary for the proper functioning of the Committee. The City Manager
or designee of each City shall appoint appropriate city staff members as the City's
representatives (and alternate representatives to serve in the absence of the Citys
representatives) to the Operations Committee promptly after execution of this Contract, and shall
immediately notify the other Parties of such appointment. Each representative (or alternate
representative) shall serve as a member of the Operations Committee at the will of the City
Manager or designee who appointed such representative. Upon the death, resignation or
revocation of the power of a City's representative (or alternate representative), the City Manager
or designee of such City shall promptly appoint a new representative (or alternate representative)
as a member of the Operations Committee.
Section 4.4 Responsibilities of Operations Committee. The Operations Committee shall
provide oversight and direction for the System and the Operator on the following issues:
(a) Provision of an agenda, minutes, and action items for the Operations
Committee meetings;
(b) Verifications of flow allocations of each City;
(c) The Operator of the System:
(d) Points of Entry to the System;
(e) Approval of reuse water (treated wastewater effluent) facilities to be
connected to the System;
(f) Design criteria and specifications:
(g) The operation and maintenance of the System:
(h) The addition of new owners of the System and the terms and conditions
of the agreements with such new owners consistent with the provisions of this Contract:
(i) Review of the budgets, prior to submission to the Cities;
(j) Review of the annual reports of the System;
(k) Improvements to and Expansions of the System;
(1) Review of and suggestions regarding proposals submitted to the Cities for
engineering services related to the System, including but not Limited to inflow and
infiltration studies, flow metering projects_ and compliance with Edwards Aquifer
Recharge Zone requirements;
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 9
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(m) Review of bids or proposals received for construction of System
Components, and make recommendations for contract award;
(n) Review of invoices received for the construction of Expansions to the
System, and make recommendations for the allocation and payment of such invoices;
(o) Recommendations for professional services consultants, including, but not
limited to, engineering and financial services;
(p) Changes to the Engineering Report;
(q) Review of cash flow projections and provision of input as to the
assumptions contained therein;
(r) Wastewater treatment system process modifications;
(s) Contracts and contract amendments;
(t) Payment allocations and schedules;
(u) Reimbursement of City costs; and
Any other pertinent matters relating to the management of the System.
The Operations Committee shall meet at regular intervals to review the progress of construction
of the System and the ongoing operation of the System. The Operations Committee shall have
access to and may inspect at any reasonable time all physical elements of the System and all
records and accounts pertaining to the System. The Operations Committee shall be diligent,
prompt, and timely in reviewing, commenting, and acting on matters submitted to it.
Section 4.5 General Management of the System. Except as expressly provided in this
Contract, the oversight of the day-to-day operations of the System shall rest with the Operations
Committee.
Section 4.6 Meetings of the Operations Committee. The Operations Committee will hold
regular monthly meetings at times and places to be selected by the members. In addition, any
City may call a special meeting to be held at any time after they have given three (3) business
days" notice to all of the other members of the Operations Committee. Any member may waive
notice of or attendance at any meeting of the Operations Committee. At a meeting, the
Operations Committee will transact any business that may properly be brought before the
meeting. Any City may place an issue for discussion on the Operations Committee's agenda.
The Operations Committee may authorize action or may delay action regarding the agenda item
regardless if a City's member does not attend or send an alternate representative.
Section 4.7 Attendance by Fern Bluff MUD and Brushy Creek MUD at Operations
Committee Meetings. The Cities agree that Fern Bluff Municipal Utility District and Brushy
Creek Municipal Utility District may appoint one representative each to be provided notice of
and attend Operations Committee meetings to obtain information regarding the System and
provide advice and input on System operations and maintenance where appropriate. Such
representatives shall not constitute voting members of the Operations Committee and their
participation in Operations Committee meetings shall be advisory in nature.
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Section 4.8 Matters Requiring Unanimous Consent. The following matters will require the
unanimous consent of the Operations Committee and the Cities with respect to the System:
(a) amendments to the Engineering Report;
(b) selection of Operator;
(c) admission of a new owner for the System;
(d) approval of Operations and Maintenance Budget and Capital Expense
Budget; and
(e) attendance by third parties of Operations Committee meetings other than
the representatives of Fern Bluff MUD and Brushy Creek MUD as provided in Section
4.7.
If a dispute arises among the Cities with respect to any of the above matters, any City may
request mediation of the disputed matter in accordance with Article XI herein. If the disputed
matter involves the approval of the Operations and Maintenance Budget the System shall be
operated and payments shall be made by the Cities for Flow Charges in accordance with the
budgets as presented by the Operator until such time as the dispute is resolved through mediation
or otherwise and the budget is adjusted (or not). If the disputed matter involves the approval of
the Capital Expense Budget, and if the disputing party is paying the majority of the Capital
Expense in dispute, such Capital Expense shall not be included in the Capital Expense Budget
until such time as the dispute is resolved through mediation or otherwise. If the disputing party
is not paying the majority of the Capital Expense in dispute, the Capital Expense shall be
included in the Capital Expense Budget.
Section 4.9 Other Matters Not Requiring Unanimous Consent. For other matters related
to the System not listed in Section 4.8, the Operations Committee and the Cities shall endeavor
to reach a consensus on action to be taken with respect to the System provided that such action
shall not unreasonably harm any City and the System will continue to be operated and
maintained in accordance with Regulatory Requirements and Prudent Utility Practices. Any City
may request mediation of the disputed matter in accordance with Article X1 herein.
Section 4.10 Relationship of Operations Committee and Operator. The Cities agree that
the delegation of matters regarding System management and operation as between the
Operations Committee and the Operator shall be as set out in the agreement between the Cities
and the Operator.
ARTICLE V
RESERVED CAPACITIES
Section 5.1 Reserved Capacities in System Components. Each City, respectively. shall
have the exclusive right to its reserved capacity in each System Component as described in
Exhibit A. No Reserved Capacity may be allocated to or used by another City other than the City
on whose behalf that capacity has been reserved, unless the affected City specifically agrees in
writing to the allocation or use.
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Section 5.2 Transfer of Reserved Capacity. Any City may transfer any portion of its
reserved capacity in one or more System components to another City, in exchange for such
consideration as such Cities shall deem appropriate. The Cities making such transfer shall
provide written notice to other City, signed by the Cities making the transfer, specifying the
amount of transferred reserved capacity and the affected System Component(s), and providing
that the Cities otherwise ratify and confirm their pre-existing obligations under this Contract. No
such transfer shall be effective until and unless such notice is provided. The Operations
Committee must be timely notified of such transfer, but the transfer is not subject to the approval
of the Operations Committee.
Section 5.3 Documentation of Transferred Reserved Capacity. In the event that reserved
capacity is transferred, the Operations Committee shall cause a written update to be made to
Exhibit A describing such transfer and setting forth the revised reserved capacity of each City in
the System Component. Such action shall not require an amendment to this Agreement.
Section 5.4 Wholesale Contracts. In the event that wastewater service is sold by a City to
another entity located within the City's Service Area which will contribute Wastewater to the
System, the City selling the wastewater service is solely responsible for the City's quantity and
quality of wastewater entering the System, the City's Reserved Capacity in each of the System
Components, and all rights and obligations stated herein. Such action is not subject to the
approval of the Operations Committee.
ARTICLE VI
POINT(S)OF ENTRY
Section 6.1 Point(s) of Entry. Each City shall deliver its Wastewater to one or more Point(s)
of Entry designated for each City. The Operations Committee shall maintain a map identifying
such Point(s) of Entry which it shall update from time to time as necessary to reflect the Point(s)
of Entry for each City. The Cities shall cooperate in good faith to design their respective Point(s)
of Entry to be at appropriate sizes and in appropriate locations to receive the City's Reserved
Capacities. Each City shall have the exclusive right to designate and deliver Wastewater to its
Point(s) of Entry and shall provide written notification to the Operations Committee of any new
Point of Entry it proposes, including a map showing such location. Such written notice shall be
provided in a reasonable amount of time to allow the Operations Committee to take such action
as may be necessary to accommodate such new Point of Entry.
Section 6.2 Inflow and Infiltration. Each City shall use its commercially reasonable efforts
to minimize inflow and infiltration into that City's wastewater system that transports wastewater
to the System.
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ARTICLE VII
WASTEWATER DISCHARGE
Section 7.1 Discharge Quality. The Cities shall have the right to discharge Wastewater into
the System meeting the requirements of quality as set forth in the pretreatment program approved
by EPA and TCEQ for the System and of which the System is capable of handling. Each City
agrees to implement and enforce the System pretreatment program for its Service Area. Each
City also covenants that it will have in effect and will enforce a sewer use ordinance in
accordance with EPA and TCEQ's regulations or regulations of other governmental agencies
having jurisdiction to set standards for waste discharges. Furthermore, each City shall, at any
reasonable time upon request by another City, produce pretreatment program records for its
Service Area for review. Each City also agrees that no new Significant Industrial User shall be
allowed to connect to the City's sewer system within its Service Area without prior notification
of the intent to connect being given by the City to the Operator. All Significant Industrial Users
that are customers of a City and located within its Service Area and outside the City's corporate
limits will also be required to obtain a sewer use permit.
ARTICLE VIII
FLOW CALCULATIONS
Section 8.1 Unit of Measurement. The unit of measurement for Wastewater delivered
hereunder shall be 1,000 gallons of water, U. S. Standard Liquid Measure.
Section 8.2 Annual Flow. The Cities agree that the methodology outlined in Exhibit C for
determining each City's "winter month average- shall be used to determine each City's Annual
Flow for the purposes of developing the Monthly Flow Charge for each City as provided herein.
To develop the Annual Flow, the ``winter month average" for each City shall be multiplied by
twelve (12) to convert the month total to an annual total. Each City shall be responsible for
calculating its Annual Flow for the upcoming Fiscal Year and shall submit such calculations to
the Operations Committee for review and comment prior to submission to the Operator by May
15th of each year.
ARTICLE IX
BUDGETS, FLOW CHARGES, CITY COVENANTS
Section 9.1 Operation and Maintenance Budget and Capital Expense Budget. As soon as
reasonably possible during the first partial Fiscal Year and not less than one hundred twenty
(120) days before commencement of each Fiscal Year, the Operator shall furnish to the Cities a
detailed estimate of Operations and Maintenance Expenses and Capital Expenses to be incurred
in the next ensuing Fiscal Year which it deems properly includable in the Operations and
Maintenance Budget and the Capital Expense Budget for the upcoming Fiscal Year. Not less
than ninety (90) days prior to each Fiscal Year. the Cities shall approve the Operation and
Maintenance Budget and the Capital Expense Budget for that Fiscal Year. The Cities shall use
diligent efforts so that Operation and Maintenance Expenses and Capital Expenses incurred by,
and ultimately paid by. the Cities are reasonable and justified.
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Section 9.2 Monthly Flow Charges. Each City shall be required to pay a Monthly Flow
Charge for use in meeting that Month's portion of the Operation and Maintenance Budget and
Capital Expense Budget. Simultaneously with the approval of this Contract, the Cities shall
approve an interim Operation and Maintenance Budget and Capital Expense Budget and
schedule of Monthly Flow Charges for the period of time between the Effective Date and
September 30, 2010. For each subsequent Operation and Maintenance Budget and Capital
Expense Budget adopted after the availability of the annual report required by Section 9.3,
below, that is for a Fiscal Year that follows a Fiscal Year during which Monthly Flow Charges
from a City have been payable hereunder, the Monthly Flow Charge amount estimated for the
subsequent Fiscal Year shall be adjusted upward or downward, as appropriate, to account for any
difference between the actual Operation and Maintenance Expenses and Capital Expenses and
those budgeted and estimated for the previously reported period.
The Monthly Flow Charge for each City for each Operation and Maintenance Budget and Capital
Expense Budget shall be 1 /12th (or in the case of the initial Fiscal Year, the fraction obtained by
dividing 1 by the number of complete Months between the Effective Date and September 30.
2010) of the amount calculated by multiplying the Annual Flow for each City 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 Operation and Maintenance Budget and the Capital Expense Budget for the period
for which the calculation is being made, expressed in dollars, by the sum of all of the Cities'
Annual Flows into System, also expressed in thousands of gallons during the twelve (12) month
period ending on such April 30.
Section 9.3 Annual Report The Operations Committee may cause to be prepared an annual
report of the System each year to contain such matters and information as may be considered
necessary and useful by the Operations Committee. including actual Operations and Maintenance
Expenses incurred by the System for the preceding fiscal year.
Section 9.4 Capital Expenses. Capital Expenses shall be allocated among and borne by the
Cities in proportion to each City's respective reserved capacity in the System Component that is
the subject of the Capital Improvement as listed in Exhibit A. The Cities shall determine the
schedule for the funding and commencement of projects identified in the Capital Expense
Budget prior to the commencement of each fiscal year.
Section 9.5 How, When, and Where Payments are to be Made. The Cities agree to make
payments of the Flow Charges to the Operator as prescribed in the contract(s) between the Cities
and the Operator. Any other payments related to the System shall be addressed through the
Operations Committee.
Section 9.6 Source of Payment.
(a) Each City represents and covenants that all payments to be made by it
under this Contract shall constitute reasonable and necessary "operating expenses," as
defined in Texas Government Code, Chapter 1502. as amended, of its City System, but
only to the extent of the payments, and the Cities shall not be obligated to make the
payments under this Contract from any source other than the gross revenues of its City
System. Each City further represents that its governing body has determined that the
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services to be provided by the System are necessary and essential to the treatment of
wastewater for such City.
(b) Each City agrees to fix and collect such rates and charges for services to
be supplied by its City System as will produce gross revenues at all times during the term
of this Contract in an amount at least equal to (i) all of the expenses of operation and
maintenance of its City System, including specifically its payments under this Contract
and (ii) all other amounts as required by law and the provisions of the ordinances or
resolutions authorizing its bonds or other obligations now or hereafter outstanding and
payable, in whole or in part, from the net revenues of its City System.
(c) No ad valorem tax revenues of any City shall be pledged to the payment of
any amounts to be paid by the Cities under this Contract, nor shall the Cities have the
right to demand payment of any amounts to be paid by the City under this Contract be
paid from funds raised or to be raised from ad valorem taxation from the City. The
obligations under this Contract shall never be construed to be a debt or pecuniary
obligation of the City of such kind as to require the City to levy and collect an ad valorem
tax to discharge its obligations.
Section 9.7 Annual Budgeting by the Cities. Each City shall make provision in each of its
annual budgets and shall appropriate an amount sufficient, at a minimum, for the payment of all
amounts required to be paid by the City under this Contract.
Section 9.8 Revenue Sources Pledged. Each City hereby pledges gross revenues of its City
System to the payment of its obligations under this Contract
Section 9.9 General Covenants by Cities. Each City further represents, covenants and
agrees that in accordance with and to the extent permitted by law, it will comply with the
covenants listed below.
(a) Performance. Each City will faithfully perform at all times any and all
covenants, undertakings, stipulations, and provisions contained herein; and it will, at the
time and in the manner prescribed, deposit or cause to be deposited the amounts required
to be deposited into the fund and accounts created by ordinances, but only from and to
the extent of the sources of funds described in such ordinances.
(b) Legal Authority. Each City is a home rule city of the State and is
authorized under the laws of the State to enter into this Contract. By execution hereof,
each City represents that all actions on its part for the execution and delivery of this
Contract have been effectively taken; and that this Contract is a valid and enforceable
special obligation of the City in accordance with its terms.
(c) Acquisition and Construction: Operation and Maintenance. Each City
shall at all times use its best efforts to operate or cause to be operated its City System
properly and in an efficient manner, consistent with Prudent Utility Practice, and shall
use its best efforts to maintain, preserve_ reconstruct and keep the same or cause the same
to be so maintained, preserved, reconstructed and kept, with the appurtenances, in good
repair, working order and condition, and shall from time to time make, or use its best
efforts to cause to be made, all necessary and proper repairs, replacements, and renewals
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so that at all times the operation of its City System may be properly and advantageously
conducted.
(d) Books, Records, and Accounts. Each City shall keep proper books,
records, and accounts separate and apart from all other records and accounts, in which
complete and correct entries shall be made of all transactions relating to its City System,
and it shall cause said books and accounts to be audited annually as of the close of each
Fiscal Year.
(e) Governmental Agencies. Each City will comply with all of the terms and
conditions of all franchises. pen -nits. and authorizations applicable to or necessary for a
respective City System, and which have been obtained from any governmental entity, and
the Cities have or will obtain and keep in effect all franchises, permits, authorizations,
and other requirements applicable to or necessary with respect to the acquisition,
construction, equipment, operation, and maintenance of a respective City System.
Section 9.10 City Rates, Fees, and Charges. Each City has the right under applicable law to
assess, charge and collect such City impact fees, capital recovery fees, connection fees, meter
fees, or other service fees, rates. taxes or other charges as it deems appropriate. This Contract
shall not be construed to require (except as provided otherwise in this Section), limit or restrict
the exercise of the governmental power of any City to implement the same. Each City 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 City elects to charge
are in compliance with applicable law. Each City agrees to establish and collect such 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 9.11 Default.
(a) Monetary Defaults by Cities. The deadline for payments of the Monthly
Flow Charge required herein, and interest due on overdue amounts shall be governed by
the provisions of Chapter 2251 of the Texas Government Code.
(b) Other Defaults by Cities. In the event that any City defaults in the
performance of any of its respective obligations under this Contract, other than the
obligation to make payments of the Monthly Flow Charge, any of the non -defaulting
parties, after giving reasonable notice of the default and opportunity to cure same, may
exercise any remedy provided by law, as set forth in Section 13.8 below.
Section 9.12 Unconditional Obligation to Make Payment. Recognizing the fact that the
Cities urgently require the facilities and services of the System, and that such facilities and
services are essential and necessary for actual use and for standby purposes, each City hereby
waives all rights of set-off. recoupment, counterclaim. suspension, deferment, reduction, and
amendment, with respect to making its payments and any other- direct or indirect recipients of
payments. Each City agrees that it shall make its appropriate payments and each City shall be
unconditionally obligated to pay its payments as provided and determined by this Contract,
regardless of whether or not the Cities actually acquire, construct, or complete the System or
System Components, whether due to Force Majeure or any other reason, regardless of any other
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provisions of this contract, or any other contract or agreement between any of the parties hereto.
This covenant is for the benefit of and enforceable by the Cities. By entering into this Contract
and performing its obligations under any Section of this Contract, each City does not release any
persons from or waive any claims against such persons that the City may have resulting from
actions by such persons contrary to that person's legal obligations.
ARTICLE X
COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS
Section 10.1 State or Federal Laws, Rules, Orders, or Regulations. This Contract is subject
to all applicable federal and State laws and any applicable permits. ordinances, rules, orders, and
regulations of any local, state, or federal governmental authority having or lawfully asserting
jurisdiction but nothing contained herein shall be construed as a waiver of any right to question
or contest any such law, ordinance, order, rule, or regulation in any forum having jurisdiction
and the Cities represent that, to the best of their knowledge, no provisions of any applicable
federal or State law, including the City Charters of the Cities, nor any permit, ordinance, rule,
order, or regulation of either party will limit or restrict the ability of any other party to carry out
their respective obligations under or contemplated by this Contract.
Section 10.2 Cooperation to Assure Regulatory Compliance. The Cities and the Operator
must comply with all federal, state, and local requirements to obtain permits, grants and
assistance for system construction, studies, etc.; therefore each City will cooperate with each
other and with the Operator in good faith at all times to assure compliance with any such
governmental requirements where noncompliance or non-cooperation by the City may subject
the Operator to penalties, loss of grants or other funds, or other adverse regulatory action. In
making the determinations called for herein, the Operator will covenant that such determinations
will be made only after informing the Operations Committee. after detailed studies of statistical
data available as to the need and feasibility have been made. and after consulting with engineers
and financial advisors. Each City will be kept advised at all times of planning and implementing
System repairs and improvements necessary to meet Regulatory Requirements.
Section 10.3 Recordkeeping and Reporting. The Cities shall insure that the Operator
maintains records on site in accordance with applicable State laws.
(a) Records to be maintained by the Operator include. but are not limited to:
(i) copies of notifications made to the TCEQ concealing wastewater
systems;
(ii) as applicable. copies of contracts made with each wastewater
customer, vendors, and consultants;
(iii) records of volume of treated water delivered to each water user per
delivery;
(iv) water quality analyses;
(v) as -built plans. easements, agreements, and leases concerning the
access, operations, and maintenance of the System:
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(vi) billing documents and all budgets;
(vii) design criteria and specifications;
(viii) compliance reports;
(ix) documentation of facts and cause analysis of any overflows;
(x) written assessments of the System made by the Operator;
(xi) documents related to Points of Entry into the System;
(xii) documentation of repairs and rehabilitation of the System;
(xiii) documentation of maintenance of equipment and vehicles;
(xiv) comprehensive asset list;
(xv) documentation of safety issues and actions;
(xvi) internal and vendor inspection reports; and
(xvii) documentation of inflow and infiltration studies and actions.
(b) The Operator shall report to the TCEQ as required by law. All costs of
compliance with the rules of the TCEQ shall be considered an Operation and
Maintenance Expense.
ARTICLE XI
NEGOTIATION AND MEDIATION OF DISPUTES
Section 11.1 Agreement Regarding Remedies. The Cities agree that their respective
obligations under this Contract are unique and recognize that they may be issuing bonds to
acquire, construct, expand, improve or replace the System. The failure by any City to perform its
obligations under this Contract would not be capable of being appropriately remedied by award
of damages to any other affected party to this Contract and in any event, such damages would be
difficult, if not impossible, to detennine because of the unique nature of the Cities' obligations to
each other hereunder. Further, the Cities agree that the remedy of termination of this Contract by
any City is inappropriate and not in the public interest. Therefore, the Cities 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 Contract. The Cities 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.
Section 11.2 Agreement to Negotiate First to Resolve Issues. The Cities agree to attempt
first to resolve disputes concerning this Contract amicably by promptly entering into negotiations
in good faith. The Cities agree that they will not refer any dispute to another dispute resolution
procedure including mediation 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 11.3 Agreement to Mediate. If any dispute cannot be resolved through good faith
negotiation, then the Cities shall endeavor to resolve the dispute by mediation as provided herein.
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Section 11.4 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, any City
may at any time give formal written notice to another City of a "claim." A "claim" as used
herein means a demand or assertion by one of the Cities (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 Contract or any other dispute or
matter in question among the Cities arising out of or related to this Contract. Such notice shall
be in writing. After such notice is given, the dispute resolution procedure provided for below
shall immediately enter into effect.
Section 11.5 Performance During Mediation. The claimant shall continue with performance
under this Contract pending mediation of the dispute.
Section 11.6 Appointment of Mediator. Promptly following the making of a written claim by
any City, the Cities will consult with one another to agree on the appointment of a mediator
acceptable to all Cities. The mediator shall have experience in matters of the kind giving rise to
the claim. If within five (5) business days the Cities are unable to agree on the appointment of a
mediator, then any City may request the appointment of a mediator by the Center for Public
Policy Dispute Resolution at the University of Texas at Austin School of Law. The Cities 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 Cities agree to utilize the
mediator 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.
Section 11.7 Rules for Mediation The Cities agree to the following stipulations concerning
the conduct of the mediation:
(a) The mediator shall be impartial among the Cities and shall have no
conflict of interest.
(b) The mediator shall not have any past, present or anticipated financial
interest in the Contract or the System except for the payment for services as mediator nor
shall the mediator have been previously employed or acted as a consultant. attorney,
employee, engineer, architect, contractor or subcontractor of any City nor have any
present or anticipated future engagement of the kind described. Before the engagement
of the mediator is finalized. the mediator shall provide to the parties a disclosure
statement containing a resume of experience, and a description of past, present or
anticipated future relationships to the System and the Cities, their engineers. contractors,
subcontractors, attorneys, architects, or consultants.
(c) The mediation shall be held at a time and location mutually agreeable to
the Cities and the mediator provided, however, that the mediation shall commence no
later than fifteen (1 5) business days following the confirmation of appointment.
(d) At least ten (10) business days prior to the mediation, the claimant shall
submit to the other Cities and the mediator 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 mediation. the responding Cities
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shall submit their written response to the claimant's statement and provide a summary of
their arguments in response.
(e) If the Cities agree that independent expert or technical advice would be
helpful in facilitating a negotiated resolution of the dispute, the mediator may make
arrangements to obtain such advice, and may, with the agreement of the Cities, 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 Cities with
respect thereto. The expenses of obtaining such independent advice or advisory opinion
shall be borne equally by the Cities.
(f) No City shall engage in any private interview, discussion or argument with
the mediator concerning the subject matter of the mediation.
(g) The fees of the mediator and any other costs of administering the
mediation shall be borne equally by the Cities unless otherwise agreed among them in
writing.
(h) The mediator may promote settlement in any manner the mediator
believes appropriate at one or several mediation sessions as agreed to by the Cities. The
mediation shall continue only so long as desired by the parties and with the consent of all
of them.
(i) Mediation sessions shall be private unless otherwise required by law.
Persons other than the representatives of the Cities may attend mediation sessions only
with the permission of all Cities and the consent of the mediator.
(j) All communications made in the course of the mediation 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.
Section 11.8 Arbitration. If a dispute arising pursuant to this Contract is not resolved through
mediation as described in this article. the matter may be referred to binding arbitration upon the
unanimous agreement of the Cities under terms and conditions to which the Cities agree. If the
Cities do not agree to such arbitration, the Cities may pursue such other remedies as may be
available to them in law or equity and as provided in this Contract.
ARTICLE XII
SPECIAL PROVISIONS
Section 12.1 Contracts with Others in Relation to System
(a) Each City shall have the right to enter into contracts with other persons
natural or corporate. private or public, to receive Wastewater from such persons that are
located within each respective City's Service Area. Each City covenants that it will
advise the other Cities and the Operator of all such written contracts and will, if requested
by another City or the Operator, furnish such City or Operator with a list of all customers
other than retail residential, and commercial customers. Initially, within thirty (30) days
after execution of this Agreement, and thereafter for each calendar year during the tenure
hereof, each City will provide the other Cities by January 31st of each year an annual
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report containing the following data about each City's customers within the City's
Service Area 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;
classification, by number and percentage, of accounts according to the
following:
(i) residential;
(ii) multi -family;
(iii) business/commercial; and
(iv) other.
(4) if business or commercial connections, a copy of any City industrial waste
discharge permit issued to such premises.
Section 12.2 Future Service to the City of Leander. The Cities recognize and contemplate
the likelihood of Leander's joining the System in the future and acquiring Reserved Capacity for
Leander to serve the Leander Service Area at that time. In that regard, the Cities agree to
reasonably cooperate to obtain Leander's concurrence to enter into an agreement with the Cities
to receive service from the System.
(3)
Section 12.3 Title to Wastewater. Title to and interest in each City's Wastewater shall remain
with each City, respectively. at all times. One City shall not acquire any right or title to the other
Cities' respective Wastewater interests by virtue of this Contract and shall not otherwise assert
any ownership interest in any City's Wastewater rights.
Section 12.4 Reuse of Treated Effluent from the System. Any City may utilize treated
effluent from the System in accordance with this Section. There will be no charge for the treated
effluent; however, each City will be responsible for paying for all capital and operational costs
associated with its respective use for any treated effluent reuse facilities. Each City's allowable
withdrawal rates of treated effluent at any given time shall be in proportion to and not exceed
each City's Annual Flow as a percent of the total Annual Flow of all Cities in the Wastewater
Treatment Plants provided the Cities may contract between themselves for the reuse of effluent.
The Operations Committee shall be kept apprised routinely by the Operator, and any other City,
regarding actions taken or contemplated to be taken in regard to use of treated effluent, including
without limitation, plans. engineering reports and similar information verifying compliance with
the provisions of this Section.
All reuse facilities shall be constructed by the City for whose benefit the reuse facilities are
intended. Reuse facilities may be constructed on System property provided that the location of
the facilities will not impair the ability of System facilities or other Cities' reuse facilities to be
constructed in the future. Unless otherwise agreed by all Cities, title to any reuse facilities
located on System property shall be dedicated to the Cities for ownership and operation, but
responsibility for, construction costs and operation and maintenance costs of, and the right to the
use of those facilities shall remain with the City(s) for whose benefit the reuse facilities exist.
MASTER CONTRACT FOR I`HE FIN ANCING. CONS] RUCTION. OWNERSHIP
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
Page 21
Round Rock's service area for treated effluent shall be Round Rock's Service Area and areas
outside of Cedar Park's and Austin's Service Areas. Cedar Park's service area for treated
effluent shall be Cedar Park's Service Area and areas outside of Round Rock's, and Austin's
Service Areas. Austin's Service Area for treated effluent shall be Austin's Service Area and
areas outside of Round Rock's, and Cedar Park's Service Areas. All Cities agree to not object to
any future water right bed and banks permit requests filed by any City for delivery of that City's
Contractual Flow of treated effluent from the East Plant.
ARTICLE XIII
GENERAL PROVISIONS
Section 13.1 Participation by the Parties. Each City represents to the others that it is
empowered by law to participate in the acquisition, construction, and financing of the System,
and to execute this Contract and other agreements and documents as are or may hereafter be
required to accomplish the same; and that its participation in the System and execution of this
Contract have been duly authorized by action of its governing body at a meeting conducted in
accordance with the Texas Open Meetings Act, as amended, Chapter 551, Texas Government
Code. Each City agrees to furnish to each other such documentation or evidence of its authority
to so participate and execute the contracts and other agreements as the other party may
reasonably request, and to take and perform such other and further actions and execute such
other agreements and documents as may be reasonably required to carry out the provisions of
this Contract.
Section 13.2 Insurance.
(a) The Cities agree to carry public liability insurance on the System for
purposes and in amounts which ordinarily would be carried by a privately owned utility
company owning and operating such facilities. The Cities shall also carry property
casualty insurance in the amount of the replacement value of all improvements and
personal property connected with the System (less a deductible comparable to the
deductible on the Cities' property insurance for Cities property generally). The amount
of each respective insurance shall exclude a proportionate share of the replacement value
equal to the portion thereof owned by Austin. The premiums for such insurance shall be
an operation and maintenance expense which shall be shared by the Cities, excluding
Austin. The proportionate charge to each of such Cities shall be based on their respective
portion of the reserved capacity and included in the Flow Charge. The City of Austin is
self insured and. in lieu of the above required insurance, may annually certify such fact
to the Operations Committee and not have the proportionate cost of insurance included in
its Flow Charge. In the event a liability claim or a casualty loss covered by the insurance
becomes payable by the Cities. Austin shall pay its proportionate share pursuant to its self
insurance plan.
(b) The Cities agree to require the contractor or contractors employed for
construction of the System to carry insurance coverage throughout the construction
period in at least the following amounts:
(i) Workers' Compensation: State law limits:
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION. OWNERSHIP Page 22
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(ii) General Liability (including contractual liability) and Automobile
Liability: One million dollars ($1,000,000.00) per person and per occurrence for
bodily injury and One million dollars ($1,000,000.00) for property damage;
(iii) Builder's Risk: full replacement value of improvements;
(iv) Performance and Payment Bond: full value of contract;
(v) Cost Overrun Insurance; and
(vi) Timely Completion Insurance.
The Cities shall be furnished with a certified copy of such effective policy of insurance
prior to commencement of construction. Such insurance policies shall name the Cities as
additional insureds, and the Cities shall be provided with a certificate of insurance
showing the required coverage and providing that the policies may not be canceled,
changed, or not renewed until the Cities have been given thirty (30) days prior written
notice of such event.
The insurance required by this section may be modified by written agreement of the
Cities, in accordance with good business practice. Any questions about the scope of
coverage required hereunder shall be resolved by written agreement between the Cities.
The Parties can agree to substitute an owner controlled insurance program for any of the
above specified insurance requirements.
Section 13.3 Force Majeure. By reason of "Force Majeure" any City is rendered unable
wholly or in part to carry out its obligations under this Contract, if that City gives 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, 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 wastewater systems or water supply and inability
on the part of such City to provide water necessary for operation of its water and wastewater
system hereunder, and impossibility by operation of law. 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 13.4 Term of Contract. This Contract shall be effective upon the day and year above
recited, and shall continue in effect until December 31, 2050.
Section 13.5 Amendment and Modification. This Contract shall not be amended except in
writing of all Parties hereto. No change, amendment, or modification of this Contract shall be
made or be effective which will affect adversely the prompt payment when due of all money
MASTER CONTRACT FOR THE FINANCING. CONSTRUCTION, OWNERSHIP Page 23
AND OPERATION OF 1 HE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
required to be paid by each City under the terms of this Contract and no such change,
amendment, or modification shall be made or be effective which would cause a violation of any
provisions of any bond resolution of another City.
Section 13.6 Addresses and Notice. Unless otherwise provided herein, any notice,
communication, request, reply. or advice (collectively, "Notice-) hereunder provided or
permitted to be given, made, or accepted by any party to the other parties 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 prepaid telegram when appropriate,
addressed to the party to be notified. Notice deposited in the mail in the manner herein described
shall be conclusively deemed to be effective, unless otherwise stated herein, from and after the
expiration of three days after it is so deposited. Notice given in any other manner shall be
effective only when received by the party to be notified. For the purposes of notice, the addresses
of the Parties shall, until changed as herein provided, be as follows:
If to Cedar Park:
City Manager
600 North Bell Blvd.
Cedar Park, Texas 78613
If to Austin:
Director, Austin Water Utility
P.O. Box 1088
Austin, Texas 78767
If to Round Rock:
City Manager
221 E. Main St.
Round Rock, Texas 78664
The Cities hereto 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.
Section 13.7 Severabilitv. The Cities specifically agree that in case any part of this Contract
or the application of such part to any situation or circumstance should be held to be invalid or
unconstitutional, under the laws or constitutions of the State or the United States of America, or
in contravention of any such laws or constitutions, such invalidity, unconstitutionality. or
contravention shall not affect any other part of this Contract or the application of such part to any
other situation or circumstance, and it is intended that this Contract shall be severable and shall
be construed and applied as if any such invalid or unconstitutional section, subsection, provision,
clause, or word had not been included herein, and the rights and obligations of the Parties hereto
shall be construed and remain in force accordingly.
Section 13.8 Remedies Upon Default. It is not intended hereby to specify an exclusive
remedy for any default. but all such other remedies (other than termination) existing at law or in
MASTER CONTRACT FOR -1 HE FINANCING. CONSTRUCTION, OWNERSHIP
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
Page 24
equity may be availed of by any party hereto and shall be cumulative. Recognizing that failure in
the performance of the Cities' obligations hereunder could not be adequately compensated in
money damages alone, each City agrees in the event of any default on its part that the other
Cities shall have available to them the remedies of mandamus and specific performance in
addition to any other legal or equitable remedies (other than termination) which may also be
available to them. Notwithstanding anything to the contrary contained in this Contract, any right
or remedy or any default hereunder shall be deemed to be conclusively waived unless asserted by
a proper proceeding at law or in equity within two (2) years plus one (1) day after the occurrence
of such default. No waiver of any breach or default by any party hereto or of the performance by
any other party of any duty or obligation hereunder shall be deemed a waiver thereof in the
future, nor shall any such waiver be deemed or construed to be a waiver of subsequent breaches
or defaults of any kind under any circumstances.
Section 13.9 Venue. All amounts due under this Contract, including, but not limited to,
payments due under this Contract or damages for the breach of this Contract, shall be paid and be
due in Williamson County, Texas, which is the County in which the principal facilities of the
System are located. It is specifically agreed among the Cities that Williamson County, Texas, is
the place of performance of this Contract; and in the event that any legal proceeding is brought to
enforce this Contract or any provision hereof, the same shall be brought in Williamson County,
Texas.
Section 13.10 Statutory Authority. In entering into this Contract and performing all duties and
obligations hereunder, the Cities exercise their authority under and in accordance with the State
Constitution and laws including, but not limited to, Chapter 1502, as amended, Texas
Government Code; each City's respective Home Rule Charter; Chapter 1371, as amended, Texas
Government Code; and all other laws which may authorize this Contract, all of which provisions
and laws, cited or not cited herein, shall cumulatively provide the authority for this Contract.
Section 13.11 Contract for Benefit of the Cities. This Contract is made for the exclusive
benefit of the Cities only. and not for any third party or parties, such as Fern Bluff Municipal
Utility District and Brushy Creek Municipal Utility District, and such third parties may not assert
any rights or remedies under or by reason of this Contract.
Section 13.12 Succession and Assignment. This Contract is binding on and inures to the
benefit of the Cities hereto and their respective successors, representatives, and assigns. This
Contract may not be assigned by any party hereto without (i) complying with any provisions
relating to the right of the Parties to assign this Contract and (ii) prior written notice to and
approval by the other Cities, which consent may not be unreasonably withheld or delayed.
Section 13.13 Incorporation of Preamble Recitals. The recitals contained in the preamble
hereof are hereby found to be true, and such recitals are hereby made a part of this Contract for
all purposes and are adopted as a part of the judgment and findings of the Cities.
Section 13.14 Entire Agreement. This Contract constitutes the entire agreement among the
Cities with respect to the matters described herein.
MASTER CONTRACT FOR THE FINANCING. CONSTRUCTION. OWNERSHIP
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
Page 25
Section 13.15 Applicable Law. This Contract shall be governed by and construed in
accordance with the laws of the State, and the obligations, rights, and remedies of the Parties
hereunder shall be determined in accordance with such laws without reference to the laws of any
other state or jurisdiction, except for applicable federal laws, rules, and regulations.
Section 13.16 Counterparts. This Contract may be executed in counterparts, each of which
shall be an original and all of which together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the Cities hereto acting under authority of their respective governing
bodies have caused this Contract to be duly executed as of the day and year first above written.
** SIGNATURE PAGES TO FOLLOW **
MASTER CONTRACT FOR THE FINANCING. CONS1Rt!CTION. OWNERSHIP
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
Page 26
CITY OF AUSTIN, TEXAS
By:
Rudy Garza,st
t City Manager
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP Page 27
AND OPERATION OF] HE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
CITY OF CEDAR PARK, TEXAS
By:
Attest:
LeAnn Quinn, City Secretary
Aole
Bob Lemon, . yor
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION_ OWNERSHIP Page 28
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
CITY OF ROUND ROCK, TEXAS
By:
Attest:
By:
/Arai132i
Sara White, City Secretary
Alan McGraw, Mayor
MASTER CONTRACT FOR THE FINANCING_ CONSTRUCTION_ OWNERSHIP
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
Page 29
Exhibits
Exhibit A—System Components
Exhibit B --Description of the System
Exhibit C—K Friese Methodology for Winter Month Averaging
EXHIBITS
EXHIBIT A
Capacity Reservations in
Brushy Creek Regional Wastewater System
System Component
Cedar Park
Austin
Round Rock
Check
Node From To
Brushy Creek Interceptor - Upstream Collection System
A C1-30 C1-17
100.00%
0.00%
0.00%
100.00%
B C 1- 1 7 C2-31
100.00%
0.00%
0.00%
100.00%
C C2-31 C2-23
90.78%
9.22%
0.00%
100.00%
D C2-23 C2-16
90.90%
9.10%
0.00%
100.00%
E C2-16 C2-9
87.30%
12.70%
0.00%
100.00%
F C2-9 C2- I B
86.11%
13.89%
0.00%
100.00%
G C2 -1B C3-22
83.38%
16.62%
0.00%
100.00%
11 C3-22 C3-18
87.16%
12.84%
0.00%
100.00%
I C3-18 C3- 13
86.09%
12.68%
1.23%
100.00%
J C3-13 C3-1
82.66%
12.18%
5.16%
100.00%
Brushy Creek Interceptor - Downstream Collection System
K C3-1 C20-28
72.73%
10.73%
16.54%
100.00%
L C20-28 C20-8
71.88%
10.60%
17.52%
100.00%
M C20-8 C21-1
45.23%
35.60%
19.17%
100.00%
N C2 I -1 C6 -12A
40.27%
31.71%
28.02%
100.00%
0 C6 -12A C6-1
38.84%
30.59%
30.57%
100.00%
P C6-1 C9-1
35.16%
27.73%
37.11%
100.00%
Q C9-1 C6A-21
34.17%
26.94%
38.89%
100.00%
R C6A-21 C6A-12
33.26%
26.25%
40.49%
100.00%
S C6A-12 C6A-1
32.61%
25.72%
41.67%
100.00%
Onion Creek Interceptor
0.00%
0.00%
100.00%
Onion Geek Relief Interceptor
0.00%
0.00%
100.00%
Southwest Interceptor
0.00%
44.05%
55.95%
South Interceptor
0.00%
44.05%
55.95%
Lake Creek Interceptor
0.00%
44.05%
55.95%
Treatment Facilities
Percent of Treatment Facilities Capacity
14.61%
3.43%
81.96%
Avg Daily Flow Capacity. ThroughTreatment
Facilities in MGD
3.58
0.84
20.08
Total Plant Capacity in MGD
24.50
EXHIBIT B
THE SYSTEM
The Brushy Creek Regional Wastewater System as described in the Engineering Report prepared
by PBS&J on behalf of the Lower Colorado River Authority, titled BRA/LCRA Brushy Creek
Regional Wastewater System Engineering Report dated October 29, 2000;
The wastewater interceptor commonly known as the South Interceptor;
The wastewater interceptor commonly known as the Onion Creek Relief Interceptor; and
The wastewater interceptor commonly known as the Southwest Interceptor.
EXHIBIT C
BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
WINTER WATER AVERAGING CALCULATION
Prepared for:
City of Round Rock
City of Cedar Park
City of Austin
Prepared by:
K Friese & Associates, Inc.
F-6535
1120 S. Capital of Texas Hwy
The Setting 111, Ste. 100
Austin, Texas 78746
(512) 338-1704
September 22, 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 (1&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
Water Averaging Summary spreadsheet and Winter Water Time Period Analysis are attached
(Exhibits 1 and 2).
Page 1 of 3
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 user, except for those listed below, 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. the existing meter in the
Regional System downstream of the facility and upstream of the first point -of -entry shall
be read during a 12 month period ending April 30. 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 12 month period ending April 30
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.
b. The bypass flow percentage calculated in (a.) shall then be multiplied by the total
winter month average flow, as calculated in A. above. contributing to the Water
Reclamation Facility. The calculated value is considered to represent the total winter
month average flow for the bypass flow.
K FR ESE
Page 3 of 3
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.)
Page 3 of 3
1 Recommendation 1
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
date of Dec 1st
Utilize data from two months
which contain the most
overlap of data collection -
water usage with the earliest
date of Dec_ 1st
'
o
•
Utilize winter water averaging
for systems with separate
irrinatien meters
Z
Acknowledge Exceptions
Round Rock
3 -month winter average: because
we have 4 zones from November -
February.
4 billing cycles- November 1`1 thru
February 290
L_
Oo
E
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.
Leander
December through February
One cycle 5th through 10th of
each month
All three months
g)
O
Actual domestic water usage
Residential. commercial, multi•
family, apartments. municipal,
golf course. school
Q
z
FBMUD
mid-Novemebr
through mid-
February
One cycle read on
the 15th
Average of three
months
O
o
Irrigation only
meters are not
subject to
wastewater billing
Residential, school,
HOA, Community
Center
Q
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
Wastewater only customers -
based on city wide average
BCMUD
November through Fehruary
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
c
0
N
>--
Residential, multi -family.
commercial. irrigation (water only)
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 VWVA they filled a new pool or had a
adjusted. period - estimate 500-1000 leak
0
Q
3 consecutive months
between designated dates
from mid-November to mid-
March
20 killing 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
0
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?
>-
2 2
2
D
0
z_
us
>a
w
>
U Q W
m��
w
F—
Q
W
1-
z
Recommendation
Wholesale Wastewater
Accounts - use 100%.
4
z
Round Rock
Currently we have one mud
account that we read a wastewater
meter. The intent over the next few
months is to remove the meter and
use the 70% methodology as
mentioned above.
Zone average
Leander
4
z
6.000 Gallons
FBMUD
Q
z
Current monthly
usage or 8.000
gallons. whichever is
less
a
R 13
47
U
One - WTC MUD 1
C7
c
0
a
V
co
cr5
BCMUD
0
c
Z
or new residential
customers, what monthly
wastewater average is
assumed until winter month
average can be calculated? 5.600 gallons default 7,000 gallons
c
.y
3
4
about 15 customers have
wastewater flow meters. none
have separate non metered
domestic wastewater flows
Question
How many customers do you
have with wastewater meters
that are used for billing? How
many of these customers
have separated domestic
wastewater flow Inot
metered)?
F
EXHIBIT 2. BILLING PERIODS REPORTED BY UTILITIES FOR WINTER WATER USAGE
O
Sat
Sun
Mon
Fri
Sal
Sun
Mon
11/1
11/2
11/6
1112
`i ROUND ROCK ?: r" ar
flfNfN�rom
CITY OF STIN
1.1'11
® 1®�
Sat
Sun
Mon
11/15
11/16
-
Sat
Sun
Mon
Sat
gun
1121
11!22
1/23
24
MEM
1126
1127
11'28
1120
11/30
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Thu
Sat
Sun
Mon
Tue
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Fri
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Mon
Tue
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Sun
Mon
2'12
12113
12/14
215
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225
Fri
Sat
Sun
Mon
226
12/27
2/29
12;29
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Fri
Sat
Sun
Mon
Tue
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Thu
Fri
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Sun
Mon
1'2
1/3
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Mon
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Mon
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2'13
214
215
2:16
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Fri
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Sun
Mon
220
2/21
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EXHIBIT 2. BILLING PERIODS REPORTED BY UTILITIES FOR WINTER WATER USAGE
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