R-10-05-13-11C1 - 5/13/2010RESOLUTION NO. R -10-05-13-11C1
WHEREAS, the City of Round Rock ("City") has previously
entered into a Master Contract for the Financing, Construction,
Ownership and Operation of the Brushy Creek Regional Wastewater
System ("Master Contract") with the City of Austin and the City of
Cedar Park (the "Parties"); and
WHEREAS, City and Parties desire to amend and restate the terms
and conditions of the Master Contract as a result of the addition of
the City of Leander as an additional owner of the Brushy Creek
Regional Wastewater System; Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,
TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City an Amended and Restated Master Contract for the
Financing, Construction, Ownership and Operation of the Brushy Creek
Regional Wastewater System with the City of Austin, City of Cedar
Park and City of Leander, a copy of same being attached hereto as
Exhibit "A" and incorporated herein for all purposes.
The City Council hereby finds and declares that written notice
of the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to
the public as required by law at all times during which this
Resolution and the subject matter hereof were discussed, considered
and formally acted upon, all as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended.
O:\wdox\SCC1nts\0112\1005\MUNICIPAL\00191395.DOC/rmc
RESOLVED this 13th day of May, 2010.
ATTEST:
E914/2/0. -14,0:t
SARA L. WHITE, City Secretary
ALAN MCGRAW, Mayor
City of Round Rock, Texas
2
AMENDED AND RESTATED MASTER CONTRACT
FOR THE
FINANCING, CONSTRUCTION, OWNERSHIP, AND
OPERATION OF
THE BRUSHY CREEK REGIONAL WASTEWATER
SYSTEM
Among
CITY OF AUSTIN
CITY OF CEDAR PARK
CITY OF ROUND ROCK
Dated:
AND
CITY OF LEANDER
EXHIBIT
„A»
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INTERPRETATION 2
Section 1.1 Definitions 2
Section 1.2 Interpretation 6
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. 7
Section 2.4 Permits and Approvals. 7
ARTICLE III SYSTEM ACQUISITION AND CONSTRUCTION 7
Section 3.1 General. 7
Section 3.2 Access to Cities 7
Section 3.3 Easements. 7
Section 3.4 Points of Entry. 8
Section 3.5 System Design and Construction. 8
Section 3.6 Expansions. 8
Section 3.7 Other Capital Improvements and Emergency Repairs 9
ARTICLE IV SYSTEM OWNERSHIP, OPERATION, AND
MAINTENANCE 9
Section 4.1 System Ownership. 9
Section 4.2 Leander's Participation in the System. 9
Section 4.3 Allocation of Leander Buy -In Requirement. 10
Section 4.4 Treatment Capacity. 10
Section 4.5 System Operation and Management. 10
Section 4.6 Operations Committee. 10
Section 4.7 Responsibilities of Operations Committee. 11
Section 4.8 General Management of the System. 12
Section 4.9 Meetings of the Operations Committee. 12
Section 4.10 Attendance by Fern Bluff MUD and Brushy Creek MUD at
Operations Committee Meetings. 12
Section 4.11 Matters Requiring Unanimous Consent 12
Section 4.12 Other Matters Not Requiring Unanimous Consent 13
i
Section 4.13 Relationship of Operations Committee and Operator 13
ARTICLE V RESERVED CAPACITIES 13
Section 5.1 Reserved Capacities in System Components. 13
Section 5.2 Transfer of Reserved Capacity 13
Section 5.3 Documentation of Transferred Reserved Capacity. 14
Section 5.4 Wholesale Contracts. 14
ARTICLE VI POINT(S)OF ENTRY 14
Section 6.1 Point(s) of Entry 14
Section 6.2 Inflow and Infiltration 14
ARTICLE VII WASTEWATER DISCHARGE 14
Section 7.1 Discharge Quality. 14
ARTICLE VIII FLOW CALCULATIONS 15
Section 8.1 Unit of Measurement. 15
Section 8.2 Annual Flow 15
ARTICLE IX BUDGETS, FLOW CHARGES, CITY COVENANTS 15
Section 9.1 Operation and Maintenance Budget and Capital Expense
Budget. 15
Section 9.2 Monthly Flow Charges. 15
Section 9.3 Annual Report 16
Section 9.4 Capital Expenses. 16
Section 9.5 How, When, and Where Payments are to be Made. 16
Section 9.6 Source of Payment. 17
Section 9.7 Annual Budgeting by the Cities. 17
Section 9.8 Revenue Sources Pledged. 17
Section 9.9 General Covenants by Cities 17
Section 9.10 City Rates, Fees, and Charges 18
Section 9.11 Default 18
Section 9.12 Unconditional Obligation to Make Payment. 19
ARTICLE X COMPLIANCE WITH FEDERAL, STATE AND LOCAL
LAWS 19
Section 10.1 State or Federal Laws, Rules, Orders, or Regulations. 19
Section 10.2 Cooperation to Assure Regulatory Compliance. 19
Section 10.3 Recordkeeping and Reporting 19
ii
ARTICLE XI NEGOTIATION AND MEDIATION OF DISPUTES 20
Section 11.1 Agreement Regarding Remedies. 20
Section 11.2 Agreement to Negotiate First to Resolve Issues. 20
Section 11.3 Agreement to Mediate 21
Section 11.4 Presentation of Written Claim Regarding Disputes Not Resolved
by Negotiation. 21
Section 11.5 Performance During Mediation. 21
Section 11.6 Appointment of Mediator. 21
Section 11.7 Rules for Mediation 21
Section 11.8 Arbitration 22
ARTICLE XII SPECIAL PROVISIONS 23
Section 12.1 Contracts with Others in Relation to System 23
Section 12.2 Title to Wastewater. 23
Section 12.3 Reuse of Treated Effluent from the System 23
ARTICLE XIII GENERAL PROVISIONS 24
Section 13.1 Participation by the Parties. 24
Section 13.2 Insurance. 24
Section 13.3 Force Majeure. 25
Section 13.4 Term of Contract. 26
Section 13.5 Amendment and Modification. 26
Section 13.6 Addresses and Notice 26
Section 13.7 Severability. 27
Section 13.8 Remedies Upon Default. 27
Section 13.9 Venue. 27
Section 13.10 Statutory Authority. 27
Section 13.11 Contract for Benefit of the Cities. 28
Section 13.12 Succession and Assignment. 28
Section 13.13 Incorporation of Preamble Recitals. 28
Section 13.14 Entire Agreement. 28
Section 13.15 Applicable Law. 28
Section 13.16 Counterparts. 28
iii
Exhibit A - System Components
Exhibit B - Map of Leander Service Area
Exhibit C - Description of the System
Exhibit D - Leander Buy In Requirement Schedule
Exhibit E - Methodology for Winter Month Averaging
iv
AMENDED AND RESTATED MASTER CONTRACT FOR THE FINANCING,
CONSTRUCTION, OWNERSHIP, AND OPERATION OF THE BRUSHY CREEK
REGIONAL WASTEWATER SYSTEM
THIS AMENDED AND RESTATED 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
day of , 2010, by and among the City of Austin, Texas ("Austin"), the City of
Cedar Park, Texas ("Cedar Park"), the City of Round Rock, Texas ("Round Rock"), and the City
of Leander, Texas ("Leander") 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 desire to discharge wastewater from their individual wastewater collection
systems into the Brushy Creek Regional Wastewater 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.
Austin, Cedar Park, and Round Rock entered into that certain "Master Contract for the
Financing, Construction, Ownership, and Operation of the Brushy Creek Regional Wastewater
System" dated December 8, 2009 pursuant to which such Cities provided for the terms and
conditions by which they would jointly own and operate the Brushy Creek Regional Wastewater
System following their joint purchase of such system from the Lower Colorado River Authority
("Original Master Contract").
Austin, Cedar Park, and Round Rock desire to amend and restate the terms and
conditions of the Original Master Contract in light of the addition of the City of Leander as an
additional owner of the Brushy Creek Regional Wastewater System and, therefore, enter into this
Amended and Restated Master Contract for the Financing, Construction, Ownership, and
Operation of the Brushy Creek Regional Wastewater System.
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:
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 1
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
ARTICLE I
DEFINITIONS AND INTERPRETATION
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, the City of Round Rock, Texas, and the City of Leander, Texas. "City"
means, respectively, the City of Cedar Park, Texas, the City of Austin, Texas, the City of
Round Rock, Texas, or the City of Leander, 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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 2
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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) "Collection System" means the wastewater collection system as detailed
in the "Brushy Creek Regional Wastewater System" map dated 2/2/2010, prepared by K.
Friese and Associates, and any additions to the Collection System that may be added as
provided in this Contract. The Collection System includes the wastewater collection
pipeline and its appurtenances from Node 'A' through Node `S', the Onion Creek
Interceptor, the Onion Creek Relief Interceptor, the Southwest Interceptor, the Lake
Creek Interceptor, and the South Interceptor.
(j) "Contract" means this document.
(k) "Effective Date" means December 9, 2009.
(1) "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.
(m) "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
other pertinent matters, and any further supplements or amendments thereto as
contemplated herein. The Engineering Report is amended as set forth in Section 3.5
below.
(n) "EPA" means the United States Environmental Protection Agency.
(o) "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.
(p) "Fiscal Year" means the twelve (12) month period beginning on October 1
of each year and ending on September 30 of the following year.
(q) "Force Majeure" means that term as it is defined in Section 13.3 of this
Contract.
(r) "Leander" means the City of Leander.
(s) "Leander Buy -In Requirement" means the payments made by Leander
pursuant to Section 4.2 of this Contract to purchase an ownership interest in the
Collection System and the rights of an Owner under this Contract.
(t) "Month" means a calendar month.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 3
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(u) "Monthly Flow Charge" means the amount to be paid each Month by each
City calculated in accordance with Section 9.2 of this Contract.
(v) "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.
(w) "Operation and Maintenance Budget" means the annual amount budgeted
as provided in Article IX for all Operation and Maintenance Expenses during any Fiscal
Year.
(x) "Operations Committee" means the committee created in Article IV of this
Contract.
(y) "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.
(z) "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.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 4
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(aa) "Point of Entry" means a point at which Wastewater from each City enters
the System.
(bb) "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.
(cc) "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.
(dd) "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.
(ee) "Round Rock" means the City of Round Rock.
(ff) "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;
(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; and
(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 as shown in the map
attached hereto and incorporated herein for all purposes as Exhibit B.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 5
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(gg) "Significant Industrial Users" has the meaning for that term as defined by
40 Code of Federal Regulations §403.3(t).
(hh) "System" means, collectively, the land interests and the improvements
described in the Engineering Report, and as shown on Exhibit C, 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.
(ii) "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.
(jj) "State" means the State of Texas.
(k() "TCEQ" means the Texas Commission on Environmental Quality or its
successor agency.
(11) "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.
(mm) "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. This Contract supersedes and replaces the Original Master Contract.
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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 6
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
Service Area. Each City agrees that it has voluntarily defined its Service Area for the purposes
of this Agreement on its own accord and not as a result of any undue pressure or influence from
another City or other third party. 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 the
System, all of 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.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 7
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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. In this regard, through
execution of this Agreement, the Cities agree that the Engineering Report is hereby amended to
(1) replace the map at Figure 4.1 with the map dated 2/2/2010 prepared by K. Friese and
Associates and (2) to revise the Node and Manhole Numbers at Appendix 2 to be consistent with
such amendment. 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
construction of the Expansion. The Operations Committee shall have the opportunity to
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 8
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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 in the Expansion 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 Leander's Participation in the System. The Parties confirm and
agree that Round Rock, Cedar Park, and Austin originally purchased the System from the Lower
Colorado River Authority pursuant to that certain "Purchase Agreement for the Brushy Creek
Regional Wastewater System" dated September 10, 2009, and that sufficient capacity in the
Collection System for the System exists to serve Leander's Service Area up to a maximum
average flow rate of 5.4 million gallons per day. In consideration for the conveyance of capacity
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 9
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
to Leander for those System Components as shown in Exhibit A and the rights of an Owner
under this Contract, Leander agrees to purchase, and Austin, Cedar Park, and Round Rock agree
to convey to Leander the Reserved Capacity in the System Components as shown on Exhibit A
for the purchase price of TEN MILLION, EIGHT HUNDRED THOUSAND DOLLARS
($10,800,000) (the "Leander Buy -In Requirement"). Leander shall pay the Leander Buy -In
Requirement in annual installments over a period of twenty-two (22) years in accordance with
the table at Exhibit D, with the first payment to occur on January 31, 2013. Leander shall make
separate payments to Round Rock, Cedar Park, and Austin in the amounts shown on Exhibit D.
During each year while there is any liability by reason of the terms and provisions of this
Contract for the Leander Buy -In Requirement, including the fiscal year in which this Contract is
first approved and executed, the Leander City Council shall compute and ascertain the rate and
amount of ad valorem tax, based on the latest approved tax rolls of Leander, with full allowances
being made for tax delinquencies and costs of tax collection, which will be sufficient to raise and
produce the money required to pay any sums which may be or become due during any such year,
in no instance to be less than two (2%) per cent of such obligation, together with all interest
thereon, because of the obligation herein assumed and undertaken. Said rate and amount of ad
valorem tax is hereby ordered to be levied and is hereby levied against all taxable property in
Leander for each year while any liability exists for payment of the Leander Buy -In Requirement
under this Contract, and said ad valorem tax shall be assessed and collected each such year until
all of the obligations for payment of the Leander Buy -In Requirement shall have been discharged
and all liability hereunder for the Leander Buy In Requirement has discharged.
Section 4.3 Allocation of Leander Buy -In Requirement. Round Rock,
Cedar Park and Austin agree that Leander's payment of the Leander Buy -In Requirement will be
distributed annually among Round Rock, Cedar Park and Austin as shown on Exhibit D.
Section 4.4 Treatment Capacity. The Parties further acknowledge and agree
that Leander shall enter into that certain "Wastewater Service Agreement Between the City of
Round Rock and the City of Leander" for the purpose of Round Rock supplying Leander on a
temporary basis with wastewater treatment service from the Treatment Facilities.
Section 4.5 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 4.6 Operations Committee. The Cities hereby create an Operations
Committee to be composed of the following members:
(a) Two representatives appointed by Cedar Park;
(b) Two representatives appointed by Round Rock;
(c) Two representatives appointed by Austin; and
(d) Two representatives appointed by Leander.
Each City shall have one vote for decision-making purposes on the Operations Committee.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 10
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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 4.7 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;
(0
(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;
(m) Review of bids or proposals received for construction of System
Components, and make recommendations for contract award;
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 11
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(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 4.8 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 4.9 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 4.10 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.
Section 4.11 Matters Requiring Unanimous Consent. The following matters
will require the unanimous consent of the Operations Committee and the Cities with respect to
the System:
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 12
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER 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) invited attendance by third parties of Operations Committee meetings
other than the representatives of Fern Bluff MUD and Brushy Creek MUD as provided in
Section 4.10.
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 4.12 Other Matters Not Requiring Unanimous Consent. For other
matters related to the System not listed in Section 4.11, 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 4.13 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.
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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 13
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
for such consideration as such Cities shall deem appropriate. The Cities making such transfer
shall provide written notice to the other Cities, 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.
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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 14
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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 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 E 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.
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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 15
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
September 30, 2010. For each subsequent Operation and Maintenance Budget and Capital
Expense Budget adopted after the availability of the annual report discussed in 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.
For the period of time that Leander only maintains an ownership interest in the Collection
System and until an Expansion of the Treatment Facilities is completed in which Leander
participates, Leander's Monthly Flow Charge shall be calculated based only on that portion of
the Operations and Maintenance Budget that is attributable to Operations and Maintenance
Expenses for the Collection System. During the aforesaid period of time, Leander's portion of
the Operations and Maintenance Budget that is attributable to the Treatment Facilities will be
billed to and paid by Leander to Round Rock in accordance with the terms of the Wastewater
Service Agreement Between the City of Round Rock and the City of Leander.
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 (other than
Leander's Buy -In Requirement, which shall be paid as specified previously in this Contract)
shall be addressed through the Operations Committee.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 16
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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 (except as specified in Section 4.2 above
regarding the Leander Buy -In Requirement) 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
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) Except as specified in Section 4.2 above regarding the Leander Buy -In
Requirement, 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. Except as
specified in Section 4.2 above regarding the Leander Buy -In Requirement, 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. In addition to the pledge at Section
4.2 for the Leander Buy -In Requirement, 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 mariner 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.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 17
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(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
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 Deadline for Payments. The deadline for payments made by the
Cities pursuant to this Contract, and interest due on overdue amounts, shall be
governed by the provisions of Chapter 2251 of the Texas Government Code.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 18
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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 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 and/or the Cities' 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. 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 ensure 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 concerning wastewater
systems;
(ii) as applicable, copies of contracts made with each wastewater
customer, vendors, and consultants;
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 19
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(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;
(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 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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 20
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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.
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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 21
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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
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.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 22
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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
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;
(3) 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 Title to Wastewater. Except as set forth in the Wastewater
Service Agreement Between the City of Round Rock and the City of Leander, 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 12.3 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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 23
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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.
Round Rock's service area for treated effluent shall be Round Rock's Service Area and other
areas that are outside of Cedar Park's, Austin's, and Leander's Service Areas. Cedar Park's
service area for treated effluent shall be Cedar Park's Service Area and other areas that are
outside of Round Rock's, Austin's, and Leander's Service Areas. Austin's service area for
treated effluent shall be Austin's Service Area and other areas that are outside of Round Rock's,
Cedar Park's, and Leander's Service Areas. Leander's service area for treated effluent shall be
Leander's Service Area and other areas that are outside of Round Rock's, Cedar Park's, and
Austin'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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 24
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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;
(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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 25
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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 and executed by all the Cities. 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 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 City to the other Cities 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 Cities 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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 26
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
If to Leander:
City Manager
200 West Willis Street
Leander, Texas 78641-1781
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 Cities.
Section 13.7 Severability. 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 Cities 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 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; Chapter 791, as amended, Texas Government Code; and all
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 27
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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.
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 28
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 29
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 30
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 31
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
CITY OF LEANDER
By:
John Cowman, Mayor
ATTEST:
By:
Debbie Haile, City Secretary
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 32
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
Exhibits
Exhibit A - System Components
Exhibit B - Map of Leander Service Area
Exhibit C - Description of the System
Exhibit D - Leander Buy In Requirement Schedule
Exhibit E - Methodology for Winter Month Averaging
EXHIBITS
Exhibit A
Amended And Restated Capacity Reservations in Brushy Creek Regional Wastewater
System
System Component
Cedar Park
Austin
Round Rock
Leander
Check
Node From To
Brushy Creek Interceptor - Upstream Collection System
A C1-30 C1-17
100.00% 0.00%
0.00%
0.00%
100.00%
B 01-17 C2-31
100.00% 0.00%
0.00%
0.00%
100.00%
C 02-31 C2-23
90.78% 9.22%
0.00%
0.00%
100.00%
D C2-23 C2-16
90.90% 9.10%
0.00%
0.00%
100.00%
E C2-16 C2-9
87.30% 12.70%
0.00%
0.00%
100.00%
F C2-9 C2-16
86.11% 13.89%
0.00%
0.00%
100.00%
G C2-16 C3-22
83.38% 16.62%
0.00%
0.00%
100.00%
H C3-22 C3-18
65.11% 9.59%
0.00%
25.30%
100.00%
1 03-18 C3-13
64.51% 9.50%
0.92%
25.07%
100.00%
J C3-13 C3-1
62.58% 9.22%
3.91%
24.29%
100.00%
Brushy Creek Interceptor - Downstream Collection System
K 03-1 C20-28
56.74% 8.37%
12.90%
21.99%
100.00%
L C20-28 C20-8
56.22% 8.29%
13.70%
21.79%
100.00%
M C20-8 021-1
38.52% 30.32%
16.32%
14.84%
100.00%
N C21-1 C6 -12A
34.87% 27.46%
24.26%
13A1%
100.00%
0 C6 -12A 06-1
33.79% 26.62%
26.60%
12.99%
100.00%
P C6-1 C9-1
30.98% 24.43%
32.70%
11.89%
100.00%
Q C9-1 C6A-21
30.21% 23.82%
34.38%
11.59%
100.00%
R C6A-21 C6A-12
29.50% 23.28%
35.91%
11.31%
100.00%
S C6A-12 C6A-1
28.99% 22.86%
37.04%
11.11%
100.00%
Onion Creek Interceptor
0.00%
0.00%
100.00%
0.00%
Onion Creek Relief Interceptor
0.00%
0.00%
100.00%
0.00%
Southwest Interceptor
0.00%
44.05%
55.95%
0.00%
South Interceptor
0.00%
44.05%
55.95%
0.00%
Lake Creek Interceptor
0.00%
44.05%
55.95%
0.00%
Treatment Facilities
Percent of Treatment Facilities Capacity
14.61%
3.43%
81.96%
0.00%
Avg Daily Flow Capacity Through Treatment
3.58
0.84
20.08
0.00%
Facilities in MGD
Total Plant Capacity in MGD
24.50
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EXHIBIT C
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;
The wastewater interceptor commonly known as the Southwest Interceptor;
The wastewater interceptor commonly known as the Lake Creek Interceptor; and
The wastewater interceptor commonly known as the Onion Creek Interceptor.
1101617_1
BCRWWS Amortization Schedule
City of Leander Buy -in
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6 m
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Interest
10,800,000.00
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a1
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119,679.56
119,679.56
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119,679.56
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01 01 CO 01 Ol CO 01 01 O1 01 CO 01 01 01 CO O1 01 CO 01 01
. . . . . . . . . . . . . . . . . . . .
00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00
lO lO tO tO t0 tO tO lO l0 LO lO lO lO lD tO lO tO lD LO lO
Cr Cr Cr Cr Cr Tr Cr Cr Cr Cr Cr Cr Cr Cr Cr Cr Cr Cr
N N N N N N N N N N N N N N N' N N N N N
m m m m m m m m m m m m m m M M m m m m
m m m M m m m m m M m m m m m m m m m m
317,990.29
01 01 01 01 01 CO 01 01 Ol
N N N N N Na (NI N N
O 0 0 0 0 0 0 0 0
01 01 CO 01 01 01 01 01 01
01 01 01 01 01 01 al 01 col
N N N N: N N N N r-.
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9,193,866.49
m 00
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01 01
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00 00
7,665,964.27
1.0 LO tO t0 LD LO lO tO
N N N N N N N N
00 00 00 00 00 00 00 00
m m m m m m m M
a1 a l a-1 ei a l a l a1 a1
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ROUND ROCK, TEXAS
PURPOSE. PASSION. PROSPERITY:
City Council Agenda Summary Sheet
Agenda Item No. 11C1.
Agenda Caption:
Consider a resolution authorizing the Mayor to execute an Amended and Restated Master
Contract for the Financing, Construction, Ownership, and Operation of the Brushy Creek
Regional Wastewater System.
Meeting Date: May 13, 2010
Department: Water/Wastewater Utilities
Staff Person making presentation: Michael Thane
Utilities Director
Item Summary:
On December 8, 2009, the Cities of Round Rock, Cedar Park, and Austin entered into a Master Contract for the
Financing, Construction, Ownership, and Operation of the Brushy Creek Regional Wastewater System (BCRWWS).
The Master Contract provided for the terms and conditions by which the Cities would jointly own and operate the
BCRWWS following the purchase of the system from the Lower Colorado River Authority.
Round Rock, Cedar Park, and Austin desire to amend and restate the terms and conditions of the Original Master
Contract in light of the addition of the City of Leander as an additional owner of the BCRWWS. Sufficient capacity in
the Collection System exists to serve Leander's Service Area up to a maximum average flow rate of 5.4 million
gallons per day. In consideration for the conveyance of capacity to Leander for those System Components and the
rights of an Owner under this Contract, Leander agrees to purchase, and Austin, Cedar Park, and Round Rock agree
to convey to Leander the Reserved Capacity in the System Components for the purchase price of $10,800,000.
Leander shall pay this amount in annual installments over a period of 22 years, with the first principal payment to
occur on January 31, 2013. Leander shall make separate payments to Round Rock, Cedar Park, and Austin.
For the period of time that Leander only maintains an ownership interest in the Collection System and until an
Expansion of the Treatment facilities is completed in which Leander participates, Leander's monthly flow charge
shall be calculated based only on that portion of the Operations and Maintenance (O&M) budget that is attributable
to the O&M expenses for the Collection System. 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 subject to the Capital
Improvement.
Strategic Plan Relevance:
Goal 28.0 "Protect public health and protect the environment through proper waste disposal."
Cost:
Source of Funds:
N/A
N/a
Date of Public Hearing (if required): N/A
Recommended Action: Staff recommends approval
EXECUTED
DOCUMENT
FOLLOWS
AMENDED AND RESTATED MASTER CONTRACT
FOR THE
FINANCING, CONSTRUCTION, OWNERSHIP, AND
OPERATION OF
THE BRUSHY CREEK REGIONAL WASTEWATER
SYSTEM
Among
CITY OF AUSTIN
CITY OF CEDAR PARK
CITY OF ROUND ROCK
AND
CITY OF LEANDER
Dated: 1kf\)t.4-; j 1
cam- t3-1 V-1
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INTERPRETATION 2
Section 1.1 Definitions 2
Section 1.2 Interpretation. 6
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. 7
Section 2.4 Permits and Approvals. 7
ARTICLE III SYSTEM ACQUISITION AND CONSTRUCTION 7
Section 3.1 General. 7
Section 3.2 Access to Cities. 7
Section 3.3 Easements. 7
Section 3.4 Points of Entry. 8
Section 3.5 System Design and Construction. 8
Section 3.6 Expansions. 8
Section 3.7 Other Capital Improvements and Emergency Repairs 9
ARTICLE IV SYSTEM OWNERSHIP, OPERATION, AND
MAINTENANCE 9
Section 4.1 System Ownership. 9
Section 4.2 Leander's Participation in the System. 9
Section 4.3 Allocation of Leander Buy -In Requirement. 10
Section 4.4 Treatment Capacity. 10
Section 4.5 System Operation and Management. 10
Section 4.6 Operations Committee. 10
Section 4.7 Responsibilities of Operations Committee. 11
Section 4.8 General Management of the System. 12
Section 4.9 Meetings of the Operations Committee. 12
Section 4.10 Attendance by Fern Bluff MUD and Brushy Creek MUD at
Operations Committee Meetings. 12
Section 4.11 Matters Requiring Unanimous Consent. 12
Section 4.12 Other Matters Not Requiring Unanimous Consent 13
1
Section 4.13 Relationship of Operations Committee and Operator 13
ARTICLE V RESERVED CAPACITIES 13
Section 5.1 Reserved Capacities in System Components. 13
Section 5.2 Transfer of Reserved Capacity 13
Section 5.3 Documentation of Transferred Reserved Capacity. 14
Section 5.4 Wholesale Contracts. 14
ARTICLE VI POINT(S)OF ENTRY 14
Section 6.1 Point(s) of Entry 14
Section 6.2 Inflow and Infiltration 14
ARTICLE VII WASTEWATER DISCHARGE 14
Section 7.1 Discharge Quality. 14
ARTICLE VIII FLOW CALCULATIONS 15
Section 8.1 Unit of Measurement. 15
Section 8.2 Annual Flow 15
ARTICLE IX BUDGETS, FLOW CHARGES, CITY COVENANTS 15
Section 9.1 Operation and Maintenance Budget and Capital Expense
Budget. 15
Section 9.2 Monthly Flow Charges. 15
Section 9.3 Annual Report 16
Section 9.4 Capital Expenses. 16
Section 9.5 How, When, and Where Payments are to be Made. 16
Section 9.6 Source of Payment. 17
Section 9.7 Annual Budgeting by the Cities. 17
Section 9.8 Revenue Sources Pledged. 17
Section 9.9 General Covenants by Cities 17
Section 9.10 City Rates, Fees, and Charges 18
Section 9.11 Default 18
Section 9.12 Unconditional Obligation to Make Payment. 19
ARTICLE X COMPLIANCE WITH FEDERAL, STATE AND LOCAL
LAWS 19
Section 10.1 State or Federal Laws, Rules, Orders, or Regulations. 19
Section 10.2 Cooperation to Assure Regulatory Compliance. 19
Section 10.3 Recordkeeping and Reporting 19
ii
ARTICLE XI NEGOTIATION AND MEDIATION OF DISPUTES 20
Section 11.1 Agreement Regarding Remedies. 20
Section 11.2 Agreement to Negotiate First to Resolve Issues. 20
Section 11.3 Agreement to Mediate 21
Section 11.4 Presentation of Written Claim Regarding Disputes Not Resolved
by Negotiation. 21
Section 11.5 Performance During Mediation. 21
Section 11.6 Appointment of Mediator. 21
Section 11.7 Rules for Mediation 21
Section 11.8 Arbitration 22
ARTICLE XII SPECIAL PROVISIONS 23
Section 12.1 Contracts with Others in Relation to System 23
Section 12.2 Title to Wastewater. 23
Section 12.3 Reuse of Treated Effluent from the System 23
ARTICLE XIII GENERAL PROVISIONS 24
Section 13.1 Participation by the Parties. 24
Section 13.2 Insurance. 24
Section 13.3 Force Majeure. 25
Section 13.4 Term of Contract. 26
Section 13.5 Amendment and Modification. 26
Section 13.6 Addresses and Notice 26
Section 13.7 Severability. 27
Section 13.8 Remedies Upon Default. 27
Section 13.9 Venue. 27
Section 13.10 Statutory Authority. 27
Section 13.11 Contract for Benefit of the Cities. 28
Section 13.12 Succession and Assignment. 28
Section 13.13 Incorporation of Preamble Recitals. 28
Section 13.14 Entire Agreement. 28
Section 13.15 Applicable Law. 28
Section 13.16 Counterparts. 28
111
Exhibit A - System Components
Exhibit B - Map of Leander Service Area
Exhibit C - Description of the System
Exhibit D - Leander Buy In Requirement Schedule
Exhibit E - Methodology for Winter Month Averaging
iv
AMENDED AND RESTATED MASTER CONTRACT FOR THE FINANCING,
CONSTRUCTION, OWNERSHIP, AND OPERATION OF THE BRUSHY CREEK
REGIONAL WASTEWATER SYSTEM
THIS AMENDED AND RESTATED MASTER CONTRACT FOR THE FINANCING,
CONSTRUCTION, OWNERSHIP, AND OPERATION OF THE BRUSHY CREEK
REIONAL WASTEWATER SYSTEM (the "Contract") is dated and entered into as of the
1-1421 day of Zi ,r , 2010, by and among the City of Austin, Texas ("Austin"), the City of
Cedar Park, Texas ("Cedar Park"), the City of Round Rock, Texas ("Round Rock"), and the City
of Leander, Texas ("Leander") 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 desire to discharge wastewater from their individual wastewater collection
systems into the Brushy Creek Regional Wastewater 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.
Austin, Cedar Park, and Round Rock entered into that certain "Master Contract for the
Financing, Construction, Ownership, and Operation of the Brushy Creek Regional Wastewater
System" dated December 8, 2009 pursuant to which such Cities provided for the terms and
conditions by which they would jointly own and operate the Brushy Creek Regional Wastewater
System following their joint purchase of such system from the Lower Colorado River Authority
("Original Master Contract").
Austin, Cedar Park, and Round Rock desire to amend and restate the terms and
conditions of the Original Master Contract in light of the addition of the City of Leander as an
additional owner of the Brushy Creek Regional Wastewater System and, therefore, enter into this
Amended and Restated Master Contract for the Financing, Construction, Ownership, and
Operation of the Brushy Creek Regional Wastewater System.
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:
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 1
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
ARTICLE I
DEFINITIONS AND INTERPRETATION
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, the City of Round Rock, Texas, and the City of Leander, Texas. "City"
means, respectively, the City of Cedar Park, Texas, the City of Austin, Texas, the City of
Round Rock, Texas, or the City of Leander, 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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 2
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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) "Collection System" means the wastewater collection system as detailed
in the "Brushy Creek Regional Wastewater System" map dated 2/2/2010, prepared by K.
Friese and Associates, and any additions to the Collection System that may be added as
provided in this Contract. The Collection System includes the wastewater collection
pipeline and its appurtenances from Node 'A' through Node `S', the Onion Creek
Interceptor, the Onion Creek Relief Interceptor, the Southwest Interceptor, the Lake
Creek Interceptor, and the South Interceptor.
(j) "Contract" means this document.
(k) "Effective Date" means December 9, 2009.
(1) "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.
(m) "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
other pertinent matters, and any further supplements or amendments thereto as
contemplated herein. The Engineering Report is amended as set forth in Section 3.5
below.
(n) "EPA" means the United States Environmental Protection Agency.
(o) "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.
(p) "Fiscal Year" means the twelve (12) month period beginning on October 1
of each year and ending on September 30 of the following year.
(q) "Force Majeure" means that term as it is defined in Section 13.3 of this
Contract.
(r) "Leander" means the City of Leander.
(s) "Leander Buy -In Requirement" means the payments made by Leander
pursuant to Section 4.2 of this Contract to purchase an ownership interest in the
Collection System and the rights of an Owner under this Contract.
(t) "Month" means a calendar month.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 3
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(u) "Monthly Flow Charge" means the amount to be paid each Month by each
City calculated in accordance with Section 9.2 of this Contract.
(v) "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.
(w) "Operation and Maintenance Budget" means the annual amount budgeted
as provided in Article IX for all Operation and Maintenance Expenses during any Fiscal
Year.
(x) "Operations Committee" means the committee created in Article IV of this
Contract.
(y) "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.
(z) "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.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 4
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(aa) "Point of Entry" means a point at which Wastewater from each City enters
the System.
(bb) "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.
(cc) "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.
(dd) "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.
(ee)
(ff)
"Round Rock" means the City of Round Rock.
"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;
(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; and
(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 as shown in the map
attached hereto and incorporated herein for all purposes as Exhibit B.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 5
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(gg) "Significant Industrial Users" has the meaning for that term as defined by
40 Code of Federal Regulations §403.3(t).
(hh) "System" means, collectively, the land interests and the improvements
described in the Engineering Report, and as shown on Exhibit C, 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.
(ii) "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.
(jj) "State" means the State of Texas.
(kk) "TCEQ" means the Texas Commission on Environmental Quality or its
successor agency.
(11) "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.
(mm) "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. This Contract supersedes and replaces the Original Master Contract.
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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 6
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
Service Area. Each City agrees that it has voluntarily defined its Service Area for the purposes
of this Agreement on its own accord and not as a result of any undue pressure or influence from
another City or other third party. 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 the
System, all of 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.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 7
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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. In this regard, through
execution of this Agreement, the Cities agree that the Engineering Report is hereby amended to
(1) replace the map at Figure 4.1 with the map dated 2/2/2010 prepared by K. Friese and
Associates and (2) to revise the Node and Manhole Numbers at Appendix 2 to be consistent with
such amendment. 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
construction of the Expansion. The Operations Committee shall have the opportunity to
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 8
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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 in the Expansion 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 Leander's Participation in the System. The Parties confirm and
agree that Round Rock, Cedar Park, and Austin originally purchased the System from the Lower
Colorado River Authority pursuant to that certain "Purchase Agreement for the Brushy Creek
Regional Wastewater System" dated September 10, 2009, and that sufficient capacity in the
Collection System for the System exists to serve Leander's Service Area up to a maximum
average flow rate of 5.4 million gallons per day. In consideration for the conveyance of capacity
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 9
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
to Leander for those System Components as shown in Exhibit A and the rights of an Owner
under this Contract, Leander agrees to purchase, and Austin, Cedar Park, and Round Rock agree
to convey to Leander the Reserved Capacity in the System Components as shown on Exhibit A
for the purchase price of TEN MILLION, EIGHT HUNDRED THOUSAND DOLLARS
($10,800,000) (the "Leander Buy -In Requirement"). Leander shall pay the Leander Buy -In
Requirement in annual installments over a period of twenty-two (22) years in accordance with
the table at Exhibit D, with the first payment to occur on January 31, 2013. Leander shall make
separate payments to Round Rock, Cedar Park, and Austin in the amounts shown on Exhibit D.
During each year while there is any liability by reason of the terms and provisions of this
Contract for the Leander Buy -In Requirement, including the fiscal year in which this Contract is
first approved and executed, the Leander City Council shall compute and ascertain the rate and
amount of ad valorem tax, based on the latest approved tax rolls of Leander, with full allowances
being made for tax delinquencies and costs of tax collection, which will be sufficient to raise and
produce the money required to pay any sums which may be or become due during any such year,
in no instance to be less than two (2%) per cent of such obligation, together with all interest
thereon, because of the obligation herein assumed and undertaken. Said rate and amount of ad
valorem tax is hereby ordered to be levied and is hereby levied against all taxable property in
Leander for each year while any liability exists for payment of the Leander Buy -In Requirement
under this Contract, and said ad valorem tax shall be assessed and collected each such year until
all of the obligations for payment of the Leander Buy -In Requirement shall have been discharged
and all liability hereunder for the Leander Buy In Requirement has discharged.
Section 4.3 Allocation of Leander Buy -In Requirement. Round Rock,
Cedar Park and Austin agree that Leander's payment of the Leander Buy -In Requirement will be
distributed annually among Round Rock, Cedar Park and Austin as shown on Exhibit D.
Section 4.4 Treatment Capacity. The Parties further acknowledge and agree
that Leander shall enter into that certain "Wastewater Service Agreement Between the City of
Round Rock and the City of Leander" for the purpose of Round Rock supplying Leander on a
temporary basis with wastewater treatment service from the Treatment Facilities.
Section 4.5 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 4.6 Operations Committee. The Cities hereby create an Operations
Committee to be composed of the following members:
(a) Two representatives appointed by Cedar'Park;
(b) Two representatives appointed by Round Rock;
(c) Two representatives appointed by Austin; and
(d) Two representatives appointed by Leander.
Each City shall have one vote for decision-making purposes on the Operations Committee.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 10
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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 4.7 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)
(h)
Design criteria and specifications;
The operation and maintenance of the System;
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;
(m) Review of bids or proposals received for construction of System
Components, and make recommendations for contract award;
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 11
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(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 4.8 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 4.9 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 4.10 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.
Section 4.11 Matters Requiring Unanimous Consent. The following matters
will require the unanimous consent of the Operations Committee and the Cities with respect to
the System:
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 12
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(a)
(b)
(c)
(d)
Budget; and
(e)
other than the
Section 4.10.
amendments to the Engineering Report;
selection of Operator;
admission of a new owner for the System;
approval of Operations and Maintenance Budget and Capital Expense
invited attendance by third parties of Operations Committee meetings
representatives of Fern Bluff MUD and Brushy Creek MUD as provided in
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 4.12 Other Matters Not Requiring Unanimous Consent. For other
matters related to the System not listed in Section 4.11, 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 4.13 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.
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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 13
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
for such consideration as such Cities shall deem appropriate. The Cities making such transfer
shall provide written notice to the other Cities, 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.
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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 14
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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 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 E 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 15thof 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.
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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 15
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
September 30, 2010. For each subsequent Operation and Maintenance Budget and Capital
Expense Budget adopted after the availability of the annual report discussed in 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.
For the period of time that Leander only maintains an ownership interest in the Collection
System and until an Expansion of the Treatment Facilities is completed in which Leander
participates, Leander's Monthly Flow Charge shall be calculated based only on that portion of
the Operations and Maintenance Budget that is attributable to Operations and Maintenance
Expenses for the Collection System. During the aforesaid period of time, Leander's portion of
the Operations and Maintenance Budget that is attributable to the Treatment Facilities will be
billed to and paid by Leander to Round Rock in accordance with the terms of the Wastewater
Service Agreement Between the City of Round Rock and the City of Leander.
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 (other than
Leander's Buy -In Requirement, which shall be paid as specified previously in this Contract)
shall be addressed through the Operations Committee.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 16
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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 (except as specified in Section 4.2 above
regarding the Leander Buy -In Requirement) 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
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) Except as specified in Section 4.2 above regarding the Leander Buy -In
Requirement, 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. Except as
specified in Section 4.2 above regarding the Leander Buy -In Requirement, 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. In addition to the pledge at Section
4.2 for the Leander Buy -In Requirement, 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.
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AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(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
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 Deadline for Payments. The deadline for payments made by the
Cities pursuant to this Contract, and interest due on overdue amounts, shall be
governed by the provisions of Chapter 2251 of the Texas Government Code.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 18
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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 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 and/or the Cities' 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. 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 ensure 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:
(1)
systems;
(ii) as applicable, copies of contracts made with each wastewater
customer, vendors, and consultants;
copies of notifications made to the TCEQ concerning wastewater
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 19
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
(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;
(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 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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 20
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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.
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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 21
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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
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 H.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.
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 22
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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
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;
(3) 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 Title to Wastewater. Except as set forth in the Wastewater
Service Agreement Between the City of Round Rock and the City of Leander, 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 12.3 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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 23
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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.
Round Rock's service area for treated effluent shall be Round Rock's Service Area and other
areas that are outside of Cedar Park's, Austin's, and Leander's Service Areas. Cedar Park's
service area for treated effluent shall be Cedar Park's Service Area and other areas that are
outside of Round Rock's, Austin's, and Leander's Service Areas. Austin's service area for
treated effluent shall be Austin's Service Area and other areas that are outside of Round Rock's,
Cedar Park's, and Leander's Service Areas. Leander's service area for treated effluent shall be
Leander's Service Area and other areas that are outside of Round Rock's, Cedar Park's, and
Austin'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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 24
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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;
(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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 25
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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 and executed by all the Cities. 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 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 City to the other Cities 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 Cities 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
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 26
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
If to Leander:
City Manager
200 West Willis Street
Leander, Texas 78641-1781
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 Cities.
Section 13.7 Severability. 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 Cities 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 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; Chapter 791, as amended, Texas Government Code; and all
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 27
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
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.
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 28
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
CITY OF AUSTIN, TEXAS
By:
Rudy Garza, Assist nt City Manager
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 29
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
Attest:
BC412-12'
LeAnn Quinn, City Secretary
CITY OF CEDAR PARK, TEXAS
By:
Bob Lemon, Mayor
AMENDED AND RESTATED MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, PAGE 30
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
CITY OF ROUND ROCK, TEXAS
By:
Sara White, City Secretary
Alan McGraw, Mayor
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 31
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
ATTEST:
By:
Debbie Haile, City Secretary
CITY OF LEANDER
B
hn Cowman, Mayor
MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP PAGE 32
AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
Exhibits
Exhibit A - System Components
Exhibit B - Map of Leander Service Area
Exhibit C - Description of the System
Exhibit D - Leander Buy In Requirement Schedule
Exhibit E - Methodology for Winter Month Averaging
EXHIBITS
Exhibit A
Amended And Restated Capacity Reservations in Brushy Creek Regional Wastewater
System
System Component
Cedar Park
Austin
Round Rock
Leander
Check
_ Node From To
Brushy Creek Interceptor - Upstream Collection System
A C1-30 C1-17
100.00% 0.00%
0.00%
0.00%
100.00%
B C1-17 C2-31
100.00% 0.00%
0.00%
0.00%
100.00%
C C2-31 C2-23
90.78% 9.22%
0.00%
0.00%
100.00%
D C2-23 C2-16
90.90% 9.10%
0.00%
0.00%
100.00%
E C2-16 C2-9
87.30% 12.70%
0.00%
0.00%
100.00%
F C2-9 C2 -1B
86.11% 13.89%
0.00%
0.00%
100.00%
G C2 -1B C3-22
83.38% 16.62%
0.00%
0.00%
100.00%
H C3-22 C3-18
65.11% 9.59%
0.00%
25.30%
100.00%
C3-18 C3-13
64.51% 9.50%
0.92%
25.07%
100.00%
J C3-13 C3-1
62.58% 9.22%
3.91%
24.29%
100.00%
Brushy Creek Interceptor - Downstream Collection System
K C3-1 C20-28
56.74% 8.37%
12.90%
21.99%
100.00%
L C20-28 C20-8
56.22% 8.29%
13.70%
21.79%
100.00%
M C20-8 C21-1
38.52% 30.32%
16.32%
14.84%
100.00%
N C21-1 C6 -12A
34.87% 27.46%
24.26%
13.41%
100.00%
0 C6 -12A C6-1
33.79% 26.62%
26.60%
12.99%
100.00%
P C6-1 C9-1
30.98% 24.43%
32.70%
11.89%
100.00%
Q C9-1 C6A-21
30.21% 23.82%
34.38%
11.59%
100.00%
R C6A-21 C6A-12
29.50% 23.28%
35.91%
11.31%
100.00%
S C6A-12 C6A-1
.28.99% 22.86%
37.04%
11.11%
100.00%
Onion Creek Interceptor
0.00%
0.00%
100.00%
0.00%
Onion Creek Relief Interceptor
0.00%
0.00%
100.00%
0.00%
Southwest Interceptor
0.00%
44.05%
55.95%
0.00%
South Interceptor
0.00%
44.05%
55.95%
0.00%
Lake Creek lnterceptor
0.00%
44.05%
55.95%
0.00%
Treatment Facilities
Percent of Treatment Facilities Capacity
14.61%
3.43%
81.96%
0.00%
Avg Daily Flow Capacity Through Treatment
Facilities in MGD
3.58
0.84
20.08
0.000/0
Total Plant Capacity in MGD
24.50
r ' r 4
EXHIBIT C
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;
The wastewater interceptor commonly known as the Southwest Interceptor;
The wastewater interceptor commonly known as the Lake Creek Interceptor; and
The wastewater interceptor commonly known as the Onion Creek Interceptor.
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