R-10-05-13-11C2 - 5/13/2010RESOLUTION NO. R -10-05-13-11C2
WHEREAS, on December 8, 2009, the Cities of Austin, Cedar Park
and Round Rock (the "Cities") purchased the Brushy Creek Regional
Wastewater System ("BCRWWS") from the Lower Colorado River Authority
("LCRA"); and
WHEREAS, the Brazos River Authority ("BRA") operated and
maintained the BCRWWS under LCRA's ownership and has continued to
operate and maintain the system; and
WHEREAS, the City desires to enter into a Wastewater Services
Operating Agreement with the BRA and the Cities of Austin and Cedar
Park; Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,
TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City a Wastewater Services Operating Agreement with
the Brazos River Authority and the Cities of Austin and Cedar Park,
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.
0:\wdox\SCC1nts\0112\1005\MUNICIPAL\00191416.DOC/zmc
RESOLVED this 13th day of May, 2010.
ATTEST:
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SARA L. WHITE, City Secretary
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ALAN MCGRAW, Mayor
City of Round Rock, Texas
EXHIBIT
^
WASTEWATER SERVICES OPERATING AGREEMENT
BETWEEN BRAZOS RIVER AUTHORITY, CITY OF ROUND ROCK, CITY OF CEDAR
PARK, AND CITY OF AUSTIN
THIS AGREEMENT, dated and entered into this day of , 2010
(the "Effective Date"), by and between the Brazos River Authority (hereinafter called the
"BRA"), and the Cities of Round Rock, Cedar Park, and Austin (individually, "City";
collectively called "Cities"), is hereby executed in contemplation of the mutual
consideration, covenants, obligations, and benefits provided in this Agreement. BRA
and the Cities are authorized to make this Agreement under the provisions of Chapters
30 and 49, Texas Water Code; Section 791.026, Texas Government Code; and other
applicable provisions of state law. Accordingly, the Parties hereby agree as follows:
ARTICLE 1.
DEFINITIONS
1.1 Definitions.
Terms and phrases used in this Agreement, unless the context clearly demonstrates
otherwise, shall have the following meanings:
"Actual Annual Expenditures" means all recorded financial transactions for Operation
and Maintenance Expenses, Capital Expenses, Management Fee, Repair and
Replacement Fund, or other costs related to the Annual Budget during any Fiscal Year.
"Additional Service(s)" means activities performed by the BRA which are not specifically
defined in the Scope of Work of this Agreement and which are performed for the Cities
at an additional cost, agreed to by the Parties.
"Agreement" means this Agreement, together with all exhibits attached hereto and
incorporated by reference herein.
"Annual Budget" means the combination of the Operation and Maintenance Budget,
Capital Expense Budget, Management Fee, and Repair and Replacement Fund.
"Annual Flow" means the amount of wastewater generated in each City's service area
delivered to the System on an annual basis, as calculated by the Operations
Committee, in accordance with Section 8.2 of the Master Contract and Sections 5.1 and
5.2 of this Agreement, as more particularly described in "Exhibit G," attached hereto
and incorporated by reference herein.
"Annual Flow Percentages" means each City's proportionate share of the Annual Flow.
"BRA" means the Brazos River Authority.
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"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. Capital Expenses shall not
include the Management Fee or Operations and Maintenance Expenses.
"Capital Expense Budget" means the annual amount budgeted for all Capital Expenses
during any Fiscal Year.
"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 Expansion, 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..
"City" or "Cities" means the Cities of Round Rock, Cedar Park, and Austin.
"City's System" means each City's wastewater disposal system, owned by such City,
through which it provides retail and/or wholesale wastewater service within its service
area.
"Collection System" means the wastewater collection system as detailed in the K. Friese
and Associates "Brushy Creek Regional Wastewater System" map, dated 2/2/2010,
attached hereto as "Exhibit K," and incorporated by reference herein, and any
additions to the Collection System that may be added as provided in this Agreement.
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.
"Commencement Date" means January 1, 2010.
"Effluent" shall mean the treated effluent produced by the System.
"Emergency Repairs" means those unanticipated System repairs and improvements to
be paid from the Repair and Replacement Fund as they 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 Expense, as
applicable and determined by the Operations Committee.
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"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), and are incurred as Capital Expenses.
"Fiscal Year" means the 12 -month period beginning on October 1 of each year and
ending on September 30 of the following year.
"Initial Budget" means the Annual Budget for Fiscal Year 2010 as prepared by the BRA
and approved by the Cities, or portion thereof, for the System during the period between
the Commencement Date and the end of the Fiscal Year in which the Commencement
Date falls.
"Management Fee" means an amount equal to $18,865.67 per month
"Master Contract" means that certain "Master Contract for the Financing, Construction,
Ownership, and Operation of the Brushy Creek Regional Wastewater System" entered
into by and among Cities and dated December 8, 2009 as may be amended or restated
from time to time, and a copy of such amendments or restatements shall be made
available to BRA immediately upon execution by the Cities.
"Monthly Compensation" means an amount equal to one -twelfth of the Annual Budget,
to be paid to BRA by Cities, or equivalent thereof, if the Initial Budget is for a period less
than twelve months.
"Operation and Maintenance Budget" means the annual amount budgeted for all
Operation and Maintenance Expenses during any Fiscal Year and shall exclude Capital
Expenses and the Management Fee.
"Operation and Maintenance Expense" means all costs to be paid to BRA by Cities for
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 labor, materials, utilities, supervision, engineering,
accounting, auditing, legal and professional services, insurance, personnel, data
processing and purchasing;
(3) costs of scheduled 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.
Page 3 of 23
(4) such other costs or expenses as may be imposed upon the Cities in
connection with fulfillment of their obligations under this Agreement because of laws,
regulations, or requirements of the State, the United States, or any agency or
governmental subdivision of the State 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) costs associated with the satisfaction of judgments resulting from or
settlement of claims not covered by the insurance or not paid by one particular City
arising in connection with the ownership, operation or maintenance of the System,
which are contractually a responsibility of the Cities.
Depreciation shall not be considered an item of Operation and Maintenance Expense.
"Operations Committee" means the committee created by the Cities pursuant to the
Master Contract that represents the individual and collective interests of the Cities and
which such committee shall manage this Agreement, provide guidance to BRA, and
direct BRA, as appropriate, regarding the services provided by BRA through the
designated Point of Contact.
"Party" or "Parties" means BRA, the City of Round Rock, the City of Cedar Park, or the
City of Austin.
"Permit" or "Permits" means any necessary permit, license, order, and other
governmental approvals issued by any Federal, State, local or regulatory agency that
may now or hereafter have jurisdiction and related to a Regulatory Requirement
associated with the construction, maintenance, or operation of the System, including,
but not limited, to Texas Pollutant Discharge Elimination System (TPDES) Permits
issued by the TCEQ for the System.
"Point of Contact" means the individual appointed by the Operations Committee to
coordinate with BRA in all matters related to this Agreement.
"Point of Entry" means a point at which Wastewater from each City enters the System.
"Reasonable Standards" means activities conducted in accordance with municipal
wastewater collection and treatment standards and at the lowest reasonable cost
consistent with reliability and safety, which includes but is not limited to: sound
engineering principles, manufacturers' recommended operating and maintenance
criteria, and Regulatory Requirements (including regulations promulgated by any
governmental or regulatory authority or agency having jurisdiction).
Page 4 of 23
"Reconciliation Value" means the difference between the Annual Budget and the Actual
Annual Expenditures recorded in the BRA's financial accounting system in a Fiscal Year
and agreed to by the Cities.
"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, including but not limited to the rules, regulations and/or
orders of the United States Environmental Protection Agency, the TCEQ, and courts of
competent jurisdiction.
"Repair and Replacement Fund" means those funds identified as set forth in "Exhibit
F," attached hereto and incorporated by reference herein, to be used at the discretion of
the BRA for the purpose of making unscheduled repairs and replacements to the
System when prompt action is deemed necessary by the BRA for expenses which are
not contemplated in the Annual Budget.
"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 Agreement, or,
alternatively, the percentage of capacity of a System Component that a City is entitled
to utilize pursuant to this Agreement, all as set forth in the Master Contract and "Exhibit
H," attached hereto and incorporated by reference herein.
"State" means the State of Texas.
"System" means the existing Brushy Creek Regional Wastewater System components as
detailed in the K. Friese and Associates map attached hereto as "Exhibit K," and any
additions to the System that may be added as provided in this Agreement. The System
consists of the Collection System and the Treatment System.
"System Component" means a specified facility comprising part of the System as
described in the Master Contract.
"TCEQ" means the Texas Commission on Environmental Quality or any successor or
successors exercising any of its duties and functions.
"Treatment System" means the wastewater treatment system as detailed in the K.
Friese and Associates map attached hereto as "Exhibit K," and any additions to the
Treatment System that may be added as provided in this Agreement. The Treatment
System consists of the Brushy Creek East Regional Wastewater Treatment Facilities,
and the Brushy Creek West Regional Wastewater Treatment Facilities.
"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,
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and includes any infiltration water that has migrated from the ground into the System, or
inflow water from above the ground entering the System.
ARTICLE 2.
SERVICES TO BE PERFORMED
2.1 Services.
The BRA will, in accordance with the terms and conditions hereof, operate and maintain
the System, as such operations are more particularly described in "Exhibit A,"
attached hereto and incorporated by reference herein. "Exhibit A" will herein after be
referred to as the "Scope of Work." The BRA shall operate and maintain the System in
accordance with Regulatory Requirements and Reasonable Standards.
2.2 Additional Services.
In contemplating performance under the terms of this Agreement, the BRA and the
Cities hereby acknowledge that from time to time, as requested, the BRA may provide
Additional Services to the Cities, which are related to the System but are not
contemplated by the Scope of Work established herein. In that regard, the BRA and the
Cities shall detail, by separate written instrument, a description of the services to be
performed, the cost of the service, and the terms and methods of compensation to BRA.
2.3 Direction to BRA
The Operations Committee, through the Point of Contact, shall provide guidance to
BRA, and direct BRA, as appropriate, regarding all terms and conditions of this
Agreement for the services provided by BRA.
2.4 Brushy Creek Regional Wastewater System Equipment
In performing the services contemplated herein, the BRA shall be entitled to utilize the
equipment, machinery, supplies and inventory set forth in "Exhibit B," attached hereto
and incorporated by reference herein, that shall remain the property of the System. The
BRA shall repair and maintain all equipment and machinery in accordance with its
condition and usable life as an Operating and Maintenance Expense. In addition, the
BRA may acquire as an Actual Annual Expenditure, from time to time, equipment and/or
tools to operate and maintain the System and these items shall be incorporated into
"Exhibit 8," and become the property of the System upon termination of this
Agreement.
2.5 BRA Equipment
BRA may, from time to time, use BRA -owned, leased, or rented equipment in the
services of this Agreement set forth in "Exhibit C," attached hereto and incorporated by
reference herein. Such utilization shall be incorporated into the Annual Budget and paid
for as an Actual Annual Expenditure.
Page 6 of 23
2.6 Lease and Utilization of Premises and Equipment
The Cities shall allow utilization by BRA of the laboratory and related space, and
equipment, as more specifically described in "Exhibit D," attached hereto and
incorporated by reference herein.
2.7 Credit for Revenues
BRA shall collect revenues, in accordance with rates approved by the Operations
Committee, from any activity in which assets of the System are used by BRA or entities
other than the Cities. The Cities shall receive credit to the Operations and Maintenance
Budget for revenues generated by BRA for operation, maintenance and use of the
System, including but not limited to septic hauler discharge permits and fees, lab lease,
sludge processing, Forest Creek Golf Course reuse water, and interest income on funds
held by BRA under this Agreement. Such fees and permits shall be as more specifically
described in "Exhibit E."
ARTICLE 3.
REPAIR AND REPLACEMENT FUND
3.1 Repair and Replacement Fund.
The BRA shall include a Repair and Replacement Fund as set forth in "Exhibit F." The
costs associated with funding and replenishing the Repair and Replacement Fund shall
be incorporated into the Annual Budget and shall be held in an interest bearing account.
3.2 Determination of Necessity to Repair.
The BRA shall be responsible for determining the necessity of any Emergency Repairs.
Upon making any determination that Emergency Repairs are required, the BRA shall
promptly notify the Point of Contact of the Operations Committee. The BRA shall
procure, design, construct, acquire, and/or install any such improvements related to the
Emergency Repairs. At the request of the Operations Committee after the completion
of the Emergency Repairs and at Cities' expense, the BRA shall provide a written report
that specifies in reasonable detail the Emergency Repairs and the cause of the
emergency.
3.3 Restoration of Fund.
For each Fiscal Year, the BRA shall include, as a component of the Reconciliation
Value, an amount sufficient to restore the Repair and Replacement Fund to the
minimum balance as illustrated in "Exhibit F."
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ARTICLE 4.
CONDITIONS TO OBLIGATIONS OF PARTIES; OWNERSHIP OF FACILITIES
4.1 Ownership of Improvements and Repairs.
All Capital Improvements or Emergency Repairs shall become the property of the
System, recorded as an asset of the System, titled to the System, and insured by the
Cities to the extent required herein.
ARTICLE 5.
BUDGETS AND RECONCILIATION
5.1 Initial Budget
The Annual Budget for Fiscal Year 2010 as prepared by the BRA and previously
approved by the Cities, or portion thereof, for the System during the period between the
Commencement Date and the end of the Fiscal Year in which the Commencement Date
falls shall remain in effect to the end of the first Fiscal Year of this Agreement, and all
Monthly Compensation due under the Initial Budget shall be remitted directly to the BRA
as provided for in Section 6.3. The Operations Committee shall update the calculation
of the Annual Flow Percentages prior to the end of FY2010 and prior to the City of
Leander's delivery of Wastewater to the System.
5.2 Annual Flow Percentages.
On or before May 15th, prior to the beginning of each Fiscal Year, the Operations
Committee shall furnish the BRA with the Annual Flow Percentages. Budgeted
Operations and Maintenance Expenses, Management Fee, and unbudgeted Operations
and Maintenance Expenses charged to the Repair and Replacement Fund at the
direction of the Operations Committee shall be allocated to each City based on the
Annual Flow Percentages as set forth in "Exhibit G." Allocation of Capital Expenses
charged to the Repair and Replacement Fund at the direction of the Operations
Committee shall be based on the location in the System as illustrated in "Exhibit F."
5.3 Reserved Capacity
On or before May 15th, prior to the beginning of each Fiscal Year, the Operations
Committee shall furnish the BRA with a current inventory of Capacity Reservations, as
set forth in "Exhibit H," attached hereto and incorporated by reference herein. The
Operations Committee shall update the calculation of Capacity Reservations prior to the
end of FY2010 and prior to the City of Leander's delivery of Wastewater to the System.
5.4 Annual Budget Preparation.
On or before June 1st, prior to the beginning of each Fiscal Year hereafter, the BRA
shall furnish the Operations Committee with an updated estimate of the Annual Budget
(indicating amounts for each of the budgets comprising the Annual Budget), for the next
Fiscal Year plus an estimate of the Reconciliation Value for the current Fiscal Year.
The Operation and Maintenance Budget shall be calculated based upon the estimated
amount of Wastewater to be delivered to the System for the next Fiscal Year. An
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Annual Budget shall not be effective and final for the purposes of calculation and
payment of the Monthly Compensation until approved by Cities, and such approval shall
occur no later than July 15th of each year.
5.5 Notice of Monthly Compensation Calculation.
On or before August 1st, prior to the beginning of each Fiscal Year hereafter, the BRA
shall furnish the Operations Committee with a schedule of the Monthly Compensation to
be made by the Cities to the BRA for the next ensuing Fiscal Year, as illustrated in
"Exhibit I," attached hereto and incorporated by reference herein. Operations and
Maintenance Expenses and the Management Fee shall be allocated to Cities based
upon the Annual Flow Percentage. Capital Expenses shall be allocated to Cities based
on Reserved Capacity.
5.6 Monthly Budget Performance Reporting.
By the 25th of each month, the BRA will provide a report to the Operations Committee
documenting expenses related to the Annual Budget (indicating amounts for each of the
budgets comprising the Annual Budget) through the preceding month.
5.7 Adjustments.
If any changes in the "Scope of Work" as more particularly described in "Exhibit A,"
should occur, including, but not limited to, changes in Regulatory Requirements that
increase the cost of the Annual Budget, the BRA will be entitled to additional
compensation. The additional compensation will be negotiated in good faith by the
Operations Committee and the BRA within 30 days of receiving such request from the
BRA. The Monthly Compensation Calculation will be adjusted to reflect the additional
compensation and the new amount will be invoiced as soon as practical.
5.8 Calculation of Reconciliation Value.
On or around the 90th day following the close of a Fiscal Year, the Reconciliation Value
will be computed and may result in an increase or decrease on the remaining Monthly
Compensations for the current Fiscal Year.
ARTICLE 6.
FINANCIAL ISSUES
PRICES AND TERMS; PAYMENTS BY CONTRACTING PARTIES
6.1 Payments.
It is acknowledged and agreed that payments to be made under this Agreement will be
the primary source available to the BRA to provide for the Actual Annual Expenditures.
Payments made by the Cities under this Agreement shall be made from current
revenues available to the Cities.
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6.2 Compensation.
All services, work, and activity specified to be provided by the BRA to the Cities in this
Agreement will be provided as part of the Annual Budget, unless this Agreement
specifically states that the service, work, or activity is included in Additional Services.
6.3 Billing and Payment.
By the 15th of each month, the BRA will send an invoice to each of the Cities for the
Monthly Compensation for the subsequent month and any previously unbilled Additional
Services. BRA must receive full payment for the invoice from the Cities on or before the
15th day of the month following the invoice date (no later than 30 days) to prevent
Interest on Past Due Payment. All amounts due and owing the BRA by the Cities, if not
paid when due, shall bear interest at a rate equal to the sum of (1) one percent; and (2)
the prime rate as published in the Wall Street Journal on the first day of July of the
preceding fiscal year that does not fall on a Saturday or Sunday. The BRA shall have
the ability to terminate this Agreement without further liability or obligation in the event
that any of the Cities should remain delinquent in any payments due hereunder for a
period of ninety (90) days.
6.4 Audit.
The Cities have the right, subject to a three (3) business day notice and during normal
business hours, at their cost, to inspect or audit the BRA's books and records applicable
to this Agreement for any Fiscal Year to determine whether the BRA has complied with
the terms of this Agreement.
ARTICLE 7.
INSURANCE
7.1 Provision for Insurance.
(a) Following the execution of this Agreement, the BRA will have its insurance
carrier(s) issue direct to the Cities, certificates of insurance for the following insurance
coverage:
i) Workers Compensation Insurance as
prescribed by law Statutory Limit
ii) General Liability $5,000,000
The BRA shall ensure that the insurance coverage stated herein shall be maintained in
force throughout the term of this Agreement and the Cities shall be named as an
Additional Insured.
(b) Following the execution of this Agreement, the Cities will have their
insurance carrier(s) issue direct to the BRA certificates of insurance for the following
insurance coverage:
i) General Liability .................. $5,000,000
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The Cities shall ensure that the insurance coverage stated herein shall be maintained in
force throughout the term of this Agreement and the BRA shall be named as an
Additional Insured. The City of Austin is self-insured and, in lieu of the above -required
insurance, may annually certify such fact to the BRA.
All policies evidencing the insurance required by this Section shall be maintained with
insurance companies qualified under
the laws of the State.
ARTICLE 8.
REGULATION OF QUALITY OF TREATED WASTEWATER
8.1 Treated Wastewater Quality.
In order to permit the BRA to properly treat and dispose of wastewater in compliance
with all Regulatory Requirements, to protect the public health, to permit cooperation with
other entities for the protection of the physical, chemical and bacteriological quality of
public water and watercourses, and to protect the properties of the System, the Cities
and the BRA agree that the quality of all wastewater discharged must be regulated.
The Cities hereby agree that the quality of the wastewater to be discharged by the
Cities shall comply with the parameters established by the BRA as set forth in "Exhibit
J," "Inadmissible Waste," attached hereto and incorporated by reference herein, and
the Permits issued to the Cities. In that regard, the Cities specifically agree that the
Wastewater that they shall discharge to the System for treatment, pursuant to this
Agreement, shall be in accordance with the parameters set forth in the pretreatment
requirements in the Permits.
8.2 Testing of Wastewater.
The BRA shall analyze samples of the Wastewater delivered hereunder at such
frequencies and in accordance with sampling and analytical procedures as required
from time to time by the BRA. The BRA shall be entitled to collect samples of
Wastewater in the System, at any Point of Entry, and at points within the City Systems
and cause the same to be analyzed by various applicable quantitative and qualitative
methods to determine if such Wastewater is within the established parameters. The
Cities may, at their option, also take and analyze similar, but not necessarily the same,
samples of their Wastewater. Other samples and measurements may be analyzed as
required by the Permits or other Regulatory Requirements. If analysis discloses that the
Cities' Wastewater is not within the allowable parameters, it shall be the Cities'
obligation to immediately cease discharging such Wastewater.
8.3 Reporting of Potential Violations.
In the event the Operations Committee becomes aware of any significant factor or event
that may affect the efficient operation or maintenance of the System or may result in a
violation of this Agreement or any Regulatory Requirements, the Operations Committee
shall immediately notify the BRA of such factor or event. In addition, the Cities agree to
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immediately tender to the BRA all correspondence received from any Federal, State, or
local regulatory agency, which relates to the System.
ARTICLE 9.
LIABILITY
9.1 Cities' Responsibility; BRA Responsibility.
If the Wastewater discharged into the System exceeds the System design parameters;
or fails to meet the standards established under the provisions of this Agreement; or
fails to comply with Regulatory Requirements and such Wastewater results in any of the
following: Permit exceedances; violations of any Federal, State or local law, rule,
regulation or ordinance; environmental damages or any other damage, the Cities (as
between BRA and the Cities) shall be responsible for all costs and expenses resulting
therefrom.
In performing the services contemplated by this Agreement, the BRA will use its best
efforts to maximize the System' performance; however, the BRA shall not be
responsible and the Cities shall be responsible for the costs and expenses of any fines,
penalties, liabilities, claims, damages, causes of action, resulting from any of the
following: loading exceeding the System design parameters; influent containing
abnormal, toxic, hazardous, and/or other substances which cannot be removed or
treated by the existing System or which contain discharges which violate applicable
sewage rules, regulations, and/or Permit levels; flow or conditions exceeding the design
parameters of the existing System; product water containing abnormal, toxic,
hazardous, and/or other substances which violate any and all Federal, State and local
statutes, rules, regulations, standards, levels or Permits; and/or any other problems
resulting from inability or inadequacy of the existing System.
BRA shall be responsible for the costs and expenses of liability, damages, injury or loss
(including administrative or civil fines and penalties) which may arise from BRA's breach
of any provision of this Agreement, or from BRA's negligent Operation and Maintenance
or willful acts, to the proportion such breach or negligence or willful act contributed to
the damages, injury, or loss.
9.2 Notice of Claim.
If any action or claim is brought against a Party to this Agreement based upon an
alleged act or omission in connection with the provision of the services contemplated by
this Agreement, the Party receiving notice shall immediately notify the other Parties of
such action, enclosing a copy of all papers served.
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9.3 Continuation of Responsibility.
The responsibilities of the Parties under this Agreement shall survive termination of this
Agreement to the extent such liabilities are attributable to actions or omissions before
such termination.
ARTICLE 10.
OPERATION OF FACILITIES
10.1 Independent Contractor
The BRA shall be responsible for the operation and maintenance of the System and will
be an independent contractor in fulfilling all of the obligations under this Agreement and
shall not sub -contract out the Operations and Maintenance responsibility for the
System.
10.2 Regulatory Action.
The Parties recognize that the obligations of the BRA to render services as provided in
this Agreement are subject to Regulatory Requirements, and the Parties agree to
cooperate to make such applications and to take such action as may be necessary or
desirable to obtain compliance therewith.
10.3 Inspection.
The Cities will permit the BRA and its environmental consultants, at BRA's discretion, to
enter each City's System during normal business hours to conduct an environmental
assessment to determine the environmental condition of each City's System, and to
have access to the records of the Cities directly related to each City's System with
twenty-four (24) hour notice.
ARTICLE 11.
TERM AND TERMINATION
11.1 Term.
Unless terminated pursuant to the provisions hereof or by mutual agreement of the
Parties hereto, this Agreement shall continue in force and effect until September 30,
2011.
11.2 Termination.
(a) This Agreement may be terminated as follows:
(i) By the BRA or the Cities upon written notice in the event of the
following:
(1) any Federal, State or local agency should fail to issue any of
the Permits or if any of the Permits should be revoked modified or
amended;
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(2) any order or ruling should be enacted, promulgated or
issued by any governmental agency having jurisdiction over the
subject matter of this Agreement and the effect of such change,
order or ruling makes it impossible or illegal for the BRA to perform
its obligations under this Agreement; or
(3) some other event occurs which makes the continued
operation of the System impossible;
(ii) By the BRA for any reason, upon providing not less than one
hundred eighty (180) days written notice to the Cities or by the Cities for
any reason, upon providing not less than one hundred eighty (180) days
written notice to the BRA.
(b) The Parties agree to notify each other immediately upon receipt of notice
of any action proposed by a Federal, State, or local agency to revoke, modify, or amend
any of the Permits or any action by any governmental agency having jurisdiction over
the subject matter of this Agreement proposing a change, order, or ruling which would
make impossible or illegal for the BRA to perform its obligations under this Agreement.
(c) Upon termination of this Agreement, all obligations of all of the Parties
under this Agreement shall terminate and be of no further force and effect, except to the
extent that it is specifically stated herein that any such obligations shall survive
termination.
(d) Upon termination of this Agreement, the BRA agrees to cooperate with the
Cities, where reasonably possible, to assist in the Cities' assumption of the operation
and maintenance of the System. Additionally Cities agree to pay BRA for all
outstanding amounts due under the terms of this Agreement.
ARTICLE 12.
MISCELLANEOUS PROVISIONS
12.1 Remedies Upon Default.
In the event of a dispute with respect to this Agreement, or if one Party believes that the
other Party is in default of any of the provisions in this Agreement, and such default has
not been cured within the time periods prescribed by this Agreement, prior to instituting
litigation, the Parties agree to first attempt to resolve such matter through direct
discussions in the spirit of mutual cooperation, and may engage in mediation or other
alternative dispute resolution methods as mutually agreed between the Parties. If
neither a negotiated nor mediated resolution is obtained, the Parties may pursue any
available legal or equitable remedy, including specific performance and mandamus. No
right or remedy granted herein or reserved to the Parties is exclusive of any other right
or remedy herein by law or equity provided or permitted; but each shall be cumulative of
Page 14 of 23
every other right or remedy given hereunder. The Parties expressly agree that this
Agreement constitutes a contract for goods and services in accordance with Chapter
271, Subchapter I of the Texas Local Government Code in that BRA shall be providing
wastewater treatment and disposal services to the Cities and that the provisions thereof
apply to and govern claims regarding this Agreement, with the exception that attorneys
fees are expressly excluded and shall not be awarded to any Party under any
circumstances.
12.2 Force Majeure.
In the event any Party to this Agreement is rendered unable, wholly or in part, by force
majeure to carry out any of its obligations under this Agreement, excluding the
obligation to make the payments required under this Agreement, then the obligations of
such Party to the extent affected by such force majeure and to the extent that due
diligence is being used to resume performance at the earliest practicable time, shall be
suspended during the continuance of any inability so caused to the extent provided but
for no longer period. As soon as reasonably possible after the occurrence of the force
majeure relied upon, the Party whose contractual obligations are affected thereby shall
give notice and full particulars of such force majeure to the other Party. Such cause, as
far as possible, shall be remedied with all reasonable diligence. The term "force
majeure," as used herein, shall mean acts of God, strikes, lockouts or other industrial
disturbances, acts of the public enemy, orders of any kind of the government of the
United States or the State or any civil or military authority other than a party to this
Agreement, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires,
hurricanes, storms, floods, washouts, droughts, arrests, civil disturbances, explosions,
breakage or damage to machinery or equipment, or impossibility by operation of law,
which are not within the control of the party claiming such inability and such problem
could not have avoided by the exercise of due diligence and care. It is understood and
agreed that any force majeure shall be remedied with all reasonable dispatch.
12.3 Waiver.
No waiver on any breach or default (or any breaches or defaults) by any Party hereto of
any terms, covenants, conditions, or liability hereunder, or of performance by the other
party of any duty or obligation hereunder, shall be deemed or construed to be a waiver
of subsequent breaches or defaults of any kind under any circumstances.
12.4 Addresses and Notices.
All notices which the BRA or the Cities may be required, or may desire, to serve on the
other shall be in writing and shall be served by personal delivery or by depositing the
same with the U.S. Postal Service, first-class or certified mail, postage prepaid, return
receipt required, and addressed to the respective party at the addresses set forth below.
All notices shall be deemed received within five (5) business days of deposit in the mail.
The addresses stated shall be effective for all notices to the respective Parties until
written notice of a change of address is given pursuant to the provisions hereof:
Page 15 of 23
BRA:
Brazos River Authority
4600 Cobbs Drive
P.O. Box 7555 Waco, Texas 76714-7555
CITIES:
(for Notices)
Round Rock:
City of Round Rock
211 E. Main St.
Round Rock, Texas 78664
Attn: City Manager
CC: Steve Sheets
309 E. Main Street
Round Rock, Texas 78664
(Round Rock City Attorney)
Cedar Park:
City of Cedar Park
600 North Bell Blvd.
Cedar Park, Texas 78613
Attn: City Manager
CC: City Attorney
Austin:
City of Austin
Austin Water Utility
P.O. Box 1088
Austin, Texas 78767
Attn: Director
CC: Sharon Smith
Assistant City Attorney
Law Department
City of Austin
P.O. Box 1088
Austin, Texas 78767
Page 16 of 23
Leander:
City Manager
City of Leander
200 West Willis Street
Leander, Texas 78641-1781
Fax No. (512) 528-2831
City Engineer
City of Leander
200 West Willis Street
Leander, Texas 78641-1781
Fax No. (512) 528-2831
CC: Knight & Partners
Attorneys at Law
223 West Anderson Lane #A-105
Austin, Texas 78752
Fax No. (512) 323-5773
CITIES:
(for Invoices)
City of Round Rock
211 E. Main St.
Round Rock, Texas 78664
Attn: Accounts Payable
City of Cedar Park
600 North Bell Blvd.
Cedar Park, Texas 78613
Attn: Accounts Payable
City of Austin
Austin Water Utility
P.O. Box 1088
Austin, Texas 78767
Attn: Accounts Payable
City of Leander
P.O. Box 319
Leander, Texas 78646-0319
Attn: Director of Finance
Page 17 of 23
The Parties shall have the right from time to time and at any time to change their
respective addresses and each shall have the right to specify as its address any other
address by at least 15 days written notice to the other Parties.
12.5 Modification.
The authorized representatives of the Cities and BRA may not amend this Agreement
except that through mutual consent, the Operations Committee and BRA may amend
any exhibit attached hereto and incorporated by reference herein to reflect changes,
corrections, additions, or deletions to items contained within the exhibits attached hereto
and incorporated by reference herein.
12.6 Assignability of this Agreement.
This Agreement, and all rights, duties and obligations hereunder, shall not be
assignable by either Party without the prior written consent of the other Party.
12.7 Parties in Interest.
This Agreement shall be for the sole and exclusive benefit of the BRA and the Cities,
and shall not be construed to confer any benefit or right upon any third party.
12.8 Severability.
The provisions of this Agreement are severable and if any part of this Agreement or the
application thereof to any person or circumstance shall ever be held by any court of
competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of
this Agreement and the application of such part of this Agreement to other persons or
circumstances shall not be affected thereby.
12.9 Representations and Warranties.
Each party hereto represents and warrants to the other that (1) such party is validly
existing and operating under the laws of the State of its creation or incorporation, as
applicable, and the laws of the State; (2) such party has full requisite power and
authority to perform its obligations under this Agreement; (3) the execution, delivery,
and performance of this Agreement has been authorized by all necessary action of the
governing body, or board of directors, as applicable, of such Party; (4) this Agreement is
a valid and binding obligation of such Party enforceable against such Party in
accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, or other law affecting creditors rights generally and by general
equitable principles; and (5) the execution, delivery, and performance of this Agreement
by such party does not, and will not (A) violate the statute, character or other instrument
pursuant to which such party was created; (B) violate the Constitution of the State, or
any other law, rule, or regulation by which such party is bound; (C) violate any
judgment, writ, order, injunction, award, or decree of any court, arbitrator, administrative
agency or other governmental authority which is binding upon such party; or (D) result
in a material breach, violation, or default under any indenture, covenant, mortgage,
ordinance, bond resolution, contract, deed of trust, debenture, agreement, or other
instrument to which such Party is a party.
Page 18 of 23
12.10 Merger.
This Agreement, together with the exhibits attached hereto and incorporated by
reference herein, constitutes the entire Agreement between the Parties relative to the
subject matter hereof.
12.11 Future Agreement.
The inclusion of terms and conditions in this Agreement shall not be interpreted as
agreement among the Parties to include the same or similar terms and conditions in
future agreements among the Parties pertaining to the same subject matter.
12.12 Joinder of City of Leander
The Parties agree that the City of Leander may be joined in this Agreement upon the
City of Leander's execution of the attached "Exhibit L," and shall immediately be
considered either a City or a Party as further defined within this Agreement.
Page 19 of 23
BRAZOS RIVER AUTHORITY
THE STATE OF TEXAS
COUNTY OF
)
)
)
THIS INSTRUMENT is acknowledged before me on this day of , 2010,
by as of the Brazos River Authority, a , on behalf of that
Notary Public, State
Printed/Typed Name of Notary
My Commission Expires:
Page 20 of 23
CITY OF AUSTIN, TEXAS
By:
Rudy Garza, Assistant City Manager
Page 21 of 23
Attest:
CITY OF CEDAR PARK, TEXAS
By:
Bob Lemon, Mayor
By:
LeAnn Quinn, City Secretary
Page 22 of 23
CITY OF ROUND ROCK, TEXAS
By:
Alan McGraw, Mayor
Attest:
By:
Sara White, City Secretary
Page 23 of 23
List of Exhibits
Section 2.1 "Exhibit A" Scope of Work
Section 2.4 "Exhibit B" Brushy Creek Regional Wastewater
System Equipment Inventory
Section 2.5 "Exhibit C" BRA Equipment Inventory
Section 2.6 "Exhibit D" Leased Premises
Section 2.7 "Exhibit E" Fees and Permit Revenues
Section 3.1 "Exhibit F" Repair and Replacement Fund
Example
Section 5.2 "Exhibit G" Annual Flow Percentages & Winter
Water Averaging Calculation
Section 5.3 "Exhibit H" Reserved Capacities
Section 5.5 "Exhibit I" Monthly Compensation Example
Section 8.1 "Exhibit J" Inadmissible Waste
Definitions "Exhibit K" System Information
Section 12.2 "Exhibit L" Joinder of the City of Leander
Page 1
Exhibit A
Scope of Work
BRA will:
Personnel Staffing
1. Provide qualified personnel to operate and maintain the System, described
more fully in Exhibit K, pursuant to this Agreement. The BRA will staff the
System to meet the requirements specified in the Permits and budgeted level
of service.
2. Identify BRA employees and vehicles with badges and/or appropriate decals.
3. Manage any BRA personnel issues of BRA personnel operating and
maintaining the System such as hiring, worker's compensation, termination,
performance counseling, safety, and training.
4. Minimize overhead expenses and administrative costs.
5. Provide a semi-annual and annual report on direct labor charges in the format
presented in the budget adopted by the Operations Committee.
6. Use generally accepted accounting and internal control standards in
performing all financial transactions.
Communications
7. Respond to inquiries, complaints, and concerns in a professional, courteous,
and timely manner. Use best efforts to promote good relations with the Cities'
customers, stakeholders, regulators, and residents.
8. Monitor and track all complaints and inquiries received from the public, if any.
Notify the Point of Contact of all complaints and inquires.
9. Respond to any routine inquiries or reporting requirements of any
governmental authority or their consultants in a prompt and professional
manner.
10. Communicate in a proactive, prompt, and professional manner to affected
parties, media, stakeholders, and regulators regarding overflows, or other
operations and maintenance matters that will affect the public. Promptly
notify the Point of Contact of such communications.
Page 2
Coordination of Services and Operations
11. Coordinate operations and maintenance of the System with neighboring
entities or corporations as necessary or as requested by the Operations
Committee.
12. Coordinate with other Cities' advisors, including attorneys, engineers,
accountants, and financial consultants as necessary or as requested by the
Operations Committee.
Meeting Preparations and Attendance
13.Attend City Council meetings and any special meetings at which the
Operations Committee requests the BRA's attendance. Provide routine
operating and financial information.
14.Attend regular Operations Committee meetings regarding the System.
Provide routine operating and financial information.
Permits and Document Management
15. Complete, in a timely manner, all required documentation and pay all fees for
TCEQ, United States Environmental Protection Agency, the Permits related to
the operation and maintenance of the System, including but not limited to the
monthly discharge monitoring reports, industrial stormwater monitoring and
reporting, sanitary sewer overflow reports and the annual pretreatment
program report.
16. Dispose of records in accordance with BRA records retention policies.
17. Prepare and present to the Operations Committee for approval all
applications to the TCEQ for renewals of the Permits. Coordinate with the
Operations Committee on such renewal processes, including review and
comment on draft Permit revisions proposed by TCEQ.
18. Manage and maintain in an efficient, organized, and readily available manner
in the original format provided, using information technology tools as
appropriate, the following to the extent possible:
• all System plans and specifications, as -built drawings, records, and
easements delivered to BRA by the Cities, in a readily available and
organized manner, copies of contracts made with vendors, and
consultants,
• a comprehensive and detailed asset listing of the components of the
System delivered to BRA by the Cities,
Page 3
• a comprehensive and detailed list of easements associated with the
System provided by the Cities,
• water quality analyses,
• billing documents and all budgets,
• documentation of overflows, bypasses, and System failures,
• documents related to Points of Entry into the System delivered to BRA by
the Cities,
• documentation of repairs to the System by BRA after the effective date of
this Agreement,
• a comprehensive list (Exhibits B and C) and documentation of
maintenance of System equipment and vehicles,
• documentation of safety issues and actions,
• internal and vendor inspection reports,
• documentation of inflow and infiltration studies of the System and actions,
as delivered to BRA by the Cities, and
• flow data collected from metering equipment located at Points of Entry and
along the interceptors in the System.
Budget and Accounting
19. Make recommendations and prepare the Annual Budget in a timely manner.
Provide the Operations Committee a copy of the documents and backup
documentation if requested.
20. Monitor, track, and regularly report the expenses related to the Annual
Budget.
21. Submit accurate and timely billings to the Cities in accordance with this
Agreement.
22. Promptly pay all vendors and third party contractors. All penalties and
interest due on late payments shall be BRA's responsibility and shall not be
charged to the Cities, unless such penalties and interest due are based upon
the direction of the Point of Contact.
23.Accurately reflect all Cities' payments prior to any Reconciliation Value
calculations.
24. File and monitor any insurance claims in a timely manner.
25. Inventory and maintain a listing of System equipment and vehicles, and the
value of all such assets that are acquired after the execution of this
Agreement.
Page 4
System Monitoring and Emergency Response
26. Maintain 24 -hour -per -day telephone dispatch service, with qualified personnel
available to respond in the event of an emergency. The telephone number for
such service shall be displayed at all gated facilities of the System.
27. Emergency services shall include services required as a result of a hazardous
condition, or problem that would cause an unauthorized discharge or damage
to personal property, a Permit violation, endanger the public's health and
safety, a serious degradation of water quality at one or more customer
locations or a condition which, in the opinion of BRA or Cities' representative,
poses an immediate threat to develop into one of the emergencies listed
above. In the event of an emergency, the BRA shall have the authority to act
without special instruction or authorization from the Cities in order to prevent
or minimize damage, injury or loss resulting from such emergency.
28. Ensure all System lift stations and other critical equipment have reliable alarm
systems to monitor equipment operations, capacities, and electrical power.
29. Monitor and respond to any automated alarm systems installed in the System.
30. Assist in inspections related to Cities connections to the Collection System.
31. Manage federal Risk Management Program (40 CFR 68); provide compliance
oversight for applicable Environmental, Health and Safety, Security and
Emergency Management regulatory requirements. Identify non -compliances,
provide recommendations, and implement corrective actions as appropriate.
Notify the Operations Committee of respective program activities according to
contract provisions.
32. Coordinate, manage and report overflow response and remediation for the
System.
33.Advise the Operations Committee of recommended Capital Improvements
when necessary and as part of the Annual Budget preparation.
34.Advise the Point of Contact of Emergency Repairs in a timely manner.
35. Monitor flows and respond to odor complaints in the System. Monitor
permitted water quality characteristics in the System. Advise the Operations
Committee of anomalies, trends, and results of improvements.
36. Provide all verbal and written notice of Permit exceedances or violations to
the TCEQ in accordance with the provisions of the Permits and copy the Point
of Contact on such notifications.
Page 5
37. Provide all responses to TCEQ inspections in consultation with the
Operations Committee. Implement any corrective actions requested by
TCEQ and notify the Operations Committee.
38. Respond to all overflows and System failures in a timely, organized, and
efficient manner to minimize or eliminate environmental, public health and
safety, and financial impacts.
Operation of System
39. Provide personnel, materials, vehicles, equipment, and hand tools necessary
for the routine operation of the System. Brushy Creek Regional Wastewater
System equipment as described in Exhibit "B" of this Agreement will be made
available to BRA personnel for continued use on the System. The BRA shall
replenish all supplies necessary for the continuing operation of the System.
Reasonable office space and vehicle parking will be provided at the
Treatment System, at no charge to BRA, for only those System -related
activities.
40. Provide licensed operators to operate the System and to perform all
inspections, tests, sampling and laboratory analyses of such System in
compliance with Regulatory Requirements, the Permits, or by this Agreement.
41. Exercise and repair System valves, equipment, vehicles, and off-line
equipment as necessary to maintain reliable performance.
42. Optimize the use of chemicals and electricity for the System.
43. Manage all contracted services related to the System daily operations such
as chemical delivery, sludge disposal, and liquid waste acceptance.
44. Ensure that the approved pretreatment program complies with all Regulatory
Requirements. Ensure that all owners or participating Cities are notified of
the requirements of the approved pretreatment program.
45. Assist with capital improvement projects, including Edwards Aquifer Recharge
Zone compliance requirements, as an Additional Service as requested by the
Operations Committee and agreed to by BRA.
Inspection of System
46. Inspect the Treatment System, as identified in Exhibit K, each weekday
(Monday — Friday), and maintain a daily log of each inspection, reflecting
the date and time of each inspection, the personnel performing the
inspection, and any action taken, as part of the permanent records of the
Page 6
System. Provide such services on weekends and holidays as needed to
ensure proper operation of the System.
47. Inspect the Collection System, as identified in Exhibit K, on a periodic basis
and as deemed necessary, and maintain a log of each inspection, reflecting
the date and time of each inspection, the personnel performing the
inspection, and any action taken, as part of the permanent records of the
System.
48. Make periodic general observations of System equipment, and vehicles, and
provide recommendations for Capital Improvements in a timely manner and
as part of the Annual Budget preparation.
Maintenance and Repair of System
49. Maintain a scheduled maintenance program including an updated
maintenance checklist, schedule of maintenance, and replacement program
based on equipment manufacturers' recommendations and staff experience.
50. Perform all preventive maintenance, including, but not limited to, routine
cleaning, lubrication and adjustment of equipment, cleaning or replacement of
filters and belt adjustments required pursuant to the scheduled maintenance
program established in accordance with the preceding subparagraph, and
record all equipment serviced and the procedures and supplies utilized in
order to provide an up-to-date history of all service, maintenance and
replacements provided. As directed by the Operations Committee, the BRA
will be responsible for maintaining all manufacturers' warranties on System
equipment and vehicles purchased for the System after the Effective Date of
this Agreement.
51. Monitor, track, and report the amount of preventive maintenance compared to
reactive maintenance.
52. Inspect, clean and maintain appearance of System, including mowing and
trimming of ground cover, in accordance with industry standards.
53. Use generally accepted business practices to procure materials and
replacement equipment. The BRA shall not be responsible to the Operations
Committee for any guarantees in connection with such materials or
replacement equipment. The BRA shall use its best efforts to maintain the
normal guarantees applicable in the particular industry manufacturing such
materials or replacement equipment.
Page 7
Reporting
54. Complete and certify any documents required for routine self-monitoring
and/or self -reporting purposes. Prepare and submit all routine operational
and/or regulatory reports required by the Permits and in compliance with
Regulatory Requirements.
55. Prepare monthly reports in a format and method acceptable to the Operations
Committee showing:
• gallons treated for the month and cumulatively,
• variance report for the budget and actual expenses,
• percentage of preventive maintenance activities compared to preventive
and reactive maintenance,
• kWh per million gallons treated,
• chemical dosage per million gallons treated per chemical,
• wastewater inflow parameters versus treated discharge parameters in
relation to permit requirements, and
• operational issues and associated corrective actions for problems with
wastewater quality, major equipment, overflows, inflow and infiltration,
safety, etc.
Page 8
Exhibit B to Wastewater Services Operating Agreement Between the Brazos
River Authority, City of Round Rock, City of Cedar Park,
and City of Austin
FACILITY EQUIPMENT INVENTORYFOR THE BRUSHY CREEK REGIONAL
WASTEWATER SYSTEM
April , 2010
City of Round Rock
City of Cedar Park
City of Austin
Brazos River Authority
(Original on file with Brushy Creek Regional Wastewater System records)
Page 9
Exhibit C
BRA Equipment Inventory
These are assets that the Brazos River Authority has purchased through the BCRWS
Operating budget, unless noted otherwise. These assets, if not retired before the
termination of this Agreement, will revert to the System upon the termination of this
Agreement.
Asset Location
Asset #
Description
In Service
date
Life
(Months)
Cost
BCRWS East Plant
1899
Chlorine Process Analyzer
8/1/2000
120
$6,770.00
BCRWS East Plant
1902
Master Tool Set
8/1/2000
120
$7,106.96
BCRWS East Plant
1913
One Ton Crane
12/1/1996
120
$7,003.00
BCRWS East Plant
1968
Oxygen Analyzer
12/1/2000
60
$16,305.00
BCRWS East Plant
2326
DO Analyzer
11/1/2003
84
$15,690.00
BCRWS East Plant
2490
John Deere Tractor & Loader
6/29/2007
120
$24,198.00
BCRWS East Plant
2553
VibrAlign Laser Alignment
6/18/2008
120
$6,856.05
BCRWS East Plant
2615
Mixing Unit (Anoxic Zone)
2/28/2009
120
$18,468.00
BCRWS East Plant
8569
2003 Ford F-250 Truck
4/1/2003
60
$27,926.00
BCRWS East Plant
5467
2004 Ford Ranger
3/1/2004
60
$10,697.00
BCRWS East Plant
5468
2004 Ford Ranger
3/1/2004
60
$10,697.00
BCRWS East Plant
1922
2004 Chevy 2500
12/1/2003
60
$20,595.00
BCRWS East Plant
2199
2007 Ford F 500 w/ Crane
2/7/2007
60
$58,983.00
BCRWS East Plant
9241
2009 Ford F150
2/11/2009
60
$14,086.00
BCRWS East Plant
2676 (1)
Polaris
12/31/2009
84
$5,637.00
BCRWS East Plant
2677 (1)
Polaris
12/31/2009
84
$5,637.00
BCRWS East Plant
2678 (1)
Polaris
12/31/2009
84
$5,637.00
(1) The three Polaris Rangers were originally purchased by LCRA through the Expansion Construction.
The titles were sent to the City of Round Rock after the divestiture. The City of Round Rock forwarded
the titles to BRA. BRA has put the titles in BRA's name.
Page 10
Exhibit D
Leased Premises
Brushy Creek Administration BuLlding - Lab Spaces
FURNITURE PLAN
MO41M.004 AWSOC1wlp
M0.u10Cn. WC.
,MI a
ORM 1.020 ro.m�
...ua.a
The lab space to be utilized by the BRA under Section 2.6 of the Agreement is highlighted
in yellow above.
Page 11
Brazos River Authority
Calculation of monthly rent for BCRWS lab space
Total area of the building
Area of the lab only 631
Area of the offices associated with the lab 160
Total sq ft of lab space 791
% of total bldg sq ft devoted to lab 10.21%
Total cost of the building and contents
Amortize over 20 years
Monthly amortization of building
% devoted to lab
monthly amortization of lab
Monthly occupancy charges
Electricity 1,800
Water 80
Phone 400
Janitorial 525
2,805
% devoted to lab 10.21%
Monthly occupancy charges 286.33
7749 sq ft
$ 2,610,781
240 months
$ 10,878.25
10.21%
$ 1,110.43
Total monthly rental amount - building amortization plus occupancy charges
Round to even number - this is the monthly rental charge for the lab space
Page 12
$ 1,396.75
$ 1,400.00
Sludge Disposal
Exhibit E
Fees and Permit Revenues
Fiscal Year 2009 9/08-8/09 Revenue
gallons $/1000 Gal
Hutto WWTP 2,628,500 11.8550 $31,160.76
Liberty Hill
WWTP 261,450 14.7558 $3,857.90
Sandy Creek
SWTP 329,000 45.2200 $14,879.26
Septage 2009 Annual 1/1/09-12/31/09
Annual Fees $534.00
15.00 for the first truck then $1.00 per each additional truck.
Septage Disposal Rate
$0.045226 per gallon or $45.226 per 1000 gallons. $100,926.89
Page 13
Exhibit F
Repair and Replacement Fund Example
BCRWS R&R Fund
Established January 1, 2010
Initial Deposit (1)
FY 2010 Capital expenses (2)
Rehab of manhole in Node G
Repairs to Lake Creek Interceptor
Total FY 2010 Capital expenses
FY 2010 O&M Expenses (3)
Vac truck for spill clean up at plant
Total Round Rock.
Cedar. Park Austin
Initial Funding %
40.00%
40.00% 20.00%
100,000.00 40,000.00
Node G %
18,394.00
LC Intercept %
12,596.00
40,000.00 20,000.00
0.00%
0.00
83.38% 16.62%1
15,336.92
3,057.08
55.95%
0.00% 44.05%
7,047.46
0.00
5,548.54
30,990.00 7,047.46
FY 10 Flow %
15,000.00
Balance before interest earnings 54,010.00
FY 2010 Interest earned (4) 3,000.00
Balance at 9/30/10 57,010.00
Amount to be replenished
Monthly billing amount to replenish
42,990.00
3,582.50
15,336.92
8,605.62
78.50%
16.25% 5.25%
11,775.00
2,437.50
787.50
21,177.54
1,191.69
22,225.58 10,606.88
1,212.11 596.20
22,369.23
17,630.77
1,469.23
(1) transferred from carry-over funds, allocated based on capacity reservation for treatment facilities
(2) Allocated to customers based on capacity reservation percentages by node
(3) Allocated based on current year flow percentages
(4) Allocated based on average of beginning and ending fiscal year balance
Page 14
23,437.69 11,203.08
16,562.31
1,380.19
8,796.92
733.08
Exhibit G
Winter Water Averaging Calculation
& Annual Flow Percentages
For the period 10/1/2009 thru 9/30/2010
To be updated by the Operations Committee by May 15 of each year
City of Cedar Park
City of Austin
City of Round Rock
Brushy Creek MUD
Fern Bluff MUD
Total City of Round Rock
16.25%
5.25%
66.61%
8.97%
2.92%
78.50%
Grand Total 100.00%
Page 15
Exhibit H
Reserved Capacities
To be updated by the Operations Committee by May 15 of each year
Capacity Reservations in Brushy Creek Region
System Component
Austin
Round Rock
Node 1 From 1 To
Cedar Park
Brushy Creek Interceptor - Upstream Collection System
A C1-30 C1-17
100.00%
0.00%
0.00%
B C1-17 C2-31
100.00%
0.00%
0.00%
C C2-31 C2-23
90.78%
9.22%
0.00%
D C2-23 C2-16
90.90%
9.10%
0.00%
E C2-16 C2-9
87.30%
12.70%
0.00%
F C2-9 C2 -1B
86.11%
13.89%
0.00%
G C2 -1B C3-22
83.38%
16.62%
0.00%
H C3-22 C3-18
87.16%
12.84%
0.00%
I C3-18 C3-13
86.09%
12.68%
1.23%
J C3-13 C3-1
82.66%
12.18%
5.16%
Brushy Creek Interceptor - Downstream Collection System
K C3-1 C20-28
72.73%
10.73%
16.54%
L C20-28 C20-8
71.88%
10.60%
17.52%
M C20-8 C21-1
45.23%
35.60%
19.17%
N C21-1 C6 -12A
40.27%
31.71%
28.02%
0 C6 -12A C6-1
38.84%
30.59%
30.57%
P C6-1 C9-1
35.16%
27.73%
37.11%
Q C9-1 C6A-21
34.17%
26.94%
38.89%
R C6A-21 C6A-12
33.26%
26.25%
40.49%
S C6A-12 C6A-1
32.61%
25.72%
41.67%
Onion Creek Interceptor
0.00%
0.00%
100.00%
Onion Creek Relief Interceptor
0.00%
0.00%
100.00%
Southwest Interceptor
0.00%
44.05%
55.95%
South Interceptor
0.00%
44.05%
55.95%
Lake Creek Interceptor
0.00%
44.05%
55.95%
Treatment Facilities
Percent of Treatment Facilities
14.61%
3.43%
81.96%
Avg Daily Flow Capacity
3.58
0.84
20.08
Total Plant Capacity in MGD
24.50
Page 16
Exhibit I
Monthly Compensation Example
Brazos River Authority
Calculation of O&M charges to BCRWS customers
FY 2010
All amounts are per Customer Budget Presentation dated 6/9/09
1) Monthly Amount due to BRA for O&M
BRA O&M budget for BCRWS for FY 2010
Less over -recovery from FY 2008
Net amount due from BCRWS customers for FY 2010
$ 5,342,761.00
(12,232.00)
5,330,529.00
/12 mos.
Monthly amount due from BCRWS customers $ 444,210.75
2) Allocated as follows (based on billable flows)
City of Round Rock 66.62%
Sub -Regional Customers (1) 11.88%
Total City of Round Rock Allocation 78.50%
City of Cedar Park 16.25%
City of Austin 5.25%
100.00%
(1) Round Rock is taking on sub -regional customers Brushy Creek MUD and Fern Bluff MUD
3) Calculation of monthly amount due from each customer
Monthly amount due from BCRWS customers $ 444,210.75
City of Round Rock
City of Cedar Park
City of Austin
Page 17
78.50% 348,705.44
16.25% 72,184.25
5.25% 23,321.07
100.00% $ 444,210.76
Exhibit J
Inadmissible Wastes
In accordance with the provisions of Article 8 of the Wastewater Services Agreement, the Cities
agree to comply with 40 CFR 403.5, "National pretreatment standards: Prohibited discharges"
and TCEQ-Approved Pre -Treatment Program for the system. Additionally, each City agrees not
to discharge, or allow to be discharged, to the System any pollutant which causes pass-through
or interference with the operation of the Treatment System, or causes a violation of the
Treatment System's Federal or State discharge permit.
Page 18
Exhibit K
System Information
"System" means the existing Brushy Creek Regional Wastewater System components as
detailed in the K. Friese and Associates map dated 2/2/2010, attached hereto as a part of
this Exhibit, and any additions to the System that may be added as provided in this
Agreement. The System consists of the Collection System and the Treatment System.
• "Treatment System" means the wastewater treatment system and any additions
to the Treatment System that may be added as provided in this Agreement. The
Treatment System consists of the Brushy Creek East Regional Wastewater
Treatment Facilities, and the Brushy Creek West Regional Wastewater
Treatment Facilities.
"Collection System" means the wastewater collection system and any additions
to the Collection System that may be added as provided in this Agreement. 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, Lake Creek Interceptor, the Southwest
Interceptor, and the South Interceptor.
Page 19
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EXHIBIT L
JOINDER OF THE CITY OF LEANDER TO THE WASTEWATER SERVICES
OPERATING AGREEMENT BETWEEN BRAZOS RIVER AUTHORITY, CITY OF
ROUND ROCK, CITY OF CEDAR PARK, AND CITY OF AUSTIN
Pursuant to Section 12.12 of the "Wastewater Services Operating Agreement
Between the Brazos River Authority, City of Round Rock, City of Cedar Park, and City
of Austin" dated , 2010 (the "Operating Agreement"),
upon execution by the duly authorized representative of the City of Leander below, the
City of Leander shall join in and be a party to the Operating Agreement and the term
"Cities" or "City" or "Parties" or "Party" as defined in such Operating Agreement shall
include the City of Leander and the City of Leander shall have all such rights and duties
as set forth in the Operating Agreement applicable to the "Cities" or "Parties", provided,
however, that the City of Leander's duty to pay for Annual Budget Costs, as defined in
the Operating Agreement and determined by the Operations Committee, shall be limited
to only those costs and expenses associated with the Collection System and not those
associated with the Treatment System until such time as the City of Leander acquires
an ownership interest in the Treatment System, and all appropriate terms, conditions,
provisions and exhibits to the Operating Agreement shall be adjusted as necessary to
effect this intent.
ATTEST:
By:
Debbie Haile, City Secretary
CITY OF LEANDER
By:
John Cowman, Mayor
Page 20
ROUND ROCK, TEXAS
PURPOSE. PASSION. PROSPERITY
Agenda Item No. 11C2.
City Council Agenda Summary Sheet
Agenda Caption:
Consider a resolution authorizing the Mayor to execute a Wastewater Service Operating
Agreement with Brazos River Authority, City of Cedar Park, and City of Austin.
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 purchased the Brushy Creek Regional
Wastewater System (BCRWWS) from the Lower Colorado River Authority (LCRA). The Brazos River Authority (BRA)
operated and maintained the BCRWWS under LCRA's ownership and although their existing agreement was
terminated at closing, BRA has continued to operate and maintain the system since December 2009 without an
operating agreement.
The Cities desire to enter into this Wastewater Services Operating Agreement with the BRA for the operation and
maintenance (O&M) of the BCRWWS. The BRA will be responsible for the O&M of the System in accordance with
the regulatory requirements and reasonable standards, and as outlined in the terms and conditions of this
agreement. The O&M expenses and the management fee shall be allocated to the Cities based on the Annual Flow
Percentage of each City and the Capital expenses shall be allocated based on Reserved Capacity in the treatment
plants and interceptors of each City. Round Rock's capacity in the treatment plant, which includes wholesale
customers Brushy Creek Municipal Utility District (MUD) and Fern Bluff MUD is 81.96%, which equates to 20.08
million gallons per day (mgd) of the BCRWWS treatment plant capacity of 24.5 mgd.
This agreement will remain in effect until September 30, 2011.
Strategic Plan Relevance:
Goal 28.0 "Protect public health and protect the environment through proper waste disposal."
Cost:
Source of Funds:
Per annual BRA budget
Utility Fund
Date of Public Hearing (if required): N/A
Recommended Action: Staff recommends approval
EXECUTED
DOCUMENT
FOLLOWS
WASTEWATER SERVICES OPERATING AGREEMENT
BETWEEN BRAZOS RIVER AUTHORITY, CITY OF ROUND ROCK, CITY OF CEDAR
PARK, AND CITY OF AUSTIN
THIS AGREEMENT, dated and entered into this t' , day of May ' 2010
(the "Effective Date"), by and between the Brazos River Authority (hereinafter called the
"BRA"), and the Cities of Round Rock, Cedar Park, and Austin (individually, "City";
collectively called "Cities"), is hereby executed in contemplation of the mutual
consideration, covenants, obligations, and benefits provided in this Agreement. BRA
and the Cities are authorized to make this Agreement under the provisions of Chapters
30 and 49, Texas Water Code; Section 791.026, Texas Government Code; and other
applicable provisions of state law. Accordingly, the Parties hereby agree as follows:
ARTICLE 1.
DEFINITIONS
1.1 Definitions.
Terms and phrases used in this Agreement, unless the context clearly demonstrates
otherwise, shall have the following meanings:
"Actual Annual Expenditures" means all recorded financial transactions for Operation
and Maintenance Expenses, Capital Expenses, Management Fee, Repair and
Replacement Fund, or other costs related to the Annual Budget during any Fiscal Year.
"Additional Service(s)" means activities performed by the BRA which are not specifically
defined in the Scope of Work of this Agreement and which are performed for the Cities
at an additional cost, agreed to by the Parties.
"Agreement" means this Agreement, together with all exhibits attached hereto and
incorporated by reference herein.
"Annual Budget" means the combination of the Operation and Maintenance Budget,
Capital Expense Budget, Management Fee, and Repair and Replacement Fund.
"Annual Flow" means the amount of wastewater generated in each City's service area
delivered to the System on an annual basis, as calculated by the Operations
Committee, in accordance with Section 8.2 of the Master Contract and Sections 5.1 and
5.2 of this Agreement, as more particularly described in "Exhibit G," attached hereto
and incorporated by reference herein.
"Annual Flow Percentages" means each City's proportionate share of the Annual Flow.
"BRA" means the Brazos River Authority.
Page 1 of 23
R-to-o(;ic2—.
"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. Capital Expenses shall not
include the Management Fee or Operations and Maintenance Expenses.
"Capital Expense Budget" means the annual amount budgeted for all Capital Expenses
during any Fiscal Year.
"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 Expansion, 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..
"City" or "Cities" means the Cities of Round Rock, Cedar Park, and Austin.
"City's System" means each City's wastewater disposal system, owned by such City,
through which it provides retail and/or wholesale wastewater service within its service
area.
"Collection System" means the wastewater collection system as detailed in the K. Friese
and Associates "Brushy Creek Regional Wastewater System" map, dated 2/2/2010,
attached hereto as "Exhibit K," and incorporated by reference herein, and any
additions to the Collection System that may be added as provided in this Agreement.
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.
"Commencement Date" means January 1, 2010.
"Effluent" shall mean the treated effluent produced by the System.
"Emergency Repairs" means those unanticipated System repairs and improvements to
be paid from the Repair and Replacement Fund as they 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 Expense, as
applicable and determined by the Operations Committee.
Page 2 of 23
"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), and are incurred as Capital Expenses.
"Fiscal Year" means the 12 -month period beginning on October 1 of each year and
ending on September 30 of the following year.
"Initial Budget" means the Annual Budget for Fiscal Year 2010 as prepared by the BRA
and approved by the Cities, or portion thereof, for the System during the period between
the Commencement Date and the end of the Fiscal Year in which the Commencement
Date falls.
"Management Fee" means an amount equal to $18,865.67 per month
"Master Contract" means that certain "Master Contract for the Financing, Construction,
Ownership, and Operation of the Brushy Creek Regional Wastewater System" entered
into by and among Cities and dated December 8, 2009 as may be amended or restated
from time to time, and a copy of such amendments or restatements shall be made
available to BRA immediately upon execution by the Cities.
"Monthly Compensation" means an amount equal to one -twelfth of the Annual Budget,
to be paid to BRA by Cities, or equivalent thereof, if the Initial Budget is for a period Tess
than twelve months.
"Operation and Maintenance Budget" means the annual amount budgeted for all
Operation and Maintenance Expenses during any Fiscal Year and shall exclude Capital
Expenses and the Management Fee.
"Operation and Maintenance Expense" means all costs to be paid to BRA by Cities for
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 labor, materials, utilities, supervision, engineering,
accounting, auditing, legal and professional services, insurance, personnel, data
processing and purchasing;
(3) costs of scheduled 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.
Page 3 of 23
(4) such other costs or expenses as may be imposed upon the Cities in
connection with fulfillment of their obligations under this Agreement because of laws,
regulations, or requirements of the State, the United States, or any agency or
governmental subdivision of the State 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) costs associated with the satisfaction of judgments resulting from or
settlement of claims not covered by the insurance or not paid by one particular City
arising in connection with the ownership, operation or maintenance of the System,
which are contractually a responsibility of the Cities.
Depreciation shall not be considered an item of Operation and Maintenance Expense.
"Operations Committee" means the committee created by the Cities pursuant to the
Master Contract that represents the individual and collective interests of the Cities and
which such committee shall manage this Agreement, provide guidance to BRA, and
direct BRA, as appropriate, regarding the services provided by BRA through the
designated Point of Contact.
"Party" or "Parties" means BRA, the City of Round Rock, the City of Cedar Park, or the
City of Austin.
"Permit" or "Permits" means any necessary permit, license, order, and other
governmental approvals issued by any Federal, State, local or regulatory agency that
may now or hereafter have jurisdiction and related to a Regulatory Requirement
associated with the construction, maintenance, or operation of the System, including,
but not limited, to Texas Pollutant Discharge Elimination System (TPDES) Permits
issued by the TCEQ for the System.
"Point of Contact" means the individual appointed by the Operations Committee to
coordinate with BRA in all matters related to this Agreement.
"Point of Entry" means a point at which Wastewater from each City enters the System.
"Reasonable Standards" means activities conducted in accordance with municipal
wastewater collection and treatment standards and at the lowest reasonable cost
consistent with reliability and safety, which includes but is not limited to: sound
engineering principles, manufacturers' recommended operating and maintenance
criteria, and Regulatory Requirements (including regulations promulgated by any
governmental or regulatory authority or agency having jurisdiction).
Page 4 of 23
"Reconciliation Value" means the difference between the Annual Budget and the Actual
Annual Expenditures recorded in the BRA's financial accounting system in a Fiscal Year
and agreed to by the Cities.
"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, including but not limited to the rules, regulations and/or
orders of the United States Environmental Protection Agency, the TCEQ, and courts of
competent jurisdiction.
"Repair and Replacement Fund" means those funds identified as set forth in "Exhibit
F," attached hereto and incorporated by reference herein, to be used at the discretion of
the BRA for the purpose of making unscheduled repairs and replacements to the
System when prompt action is deemed necessary by the BRA for expenses which are
not contemplated in the Annual Budget.
"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 Agreement, or,
alternatively, the percentage of capacity of a System Component that a City is entitled
to utilize pursuant to this Agreement, all as set forth in the Master Contract and "Exhibit
H," attached hereto and incorporated by reference herein.
"State" means the State of Texas.
"System" means the existing Brushy Creek Regional Wastewater System components as
detailed in the K. Friese and Associates map attached hereto as "Exhibit K," and any
additions to the System that may be added as provided in this Agreement. The System
consists of the Collection System and the Treatment System.
"System Component" means a specified facility comprising part of the System as
described in the Master Contract.
"TCEQ" means the Texas Commission on Environmental Quality or any successor or
successors exercising any of its duties and functions.
"Treatment System" means the wastewater treatment system as detailed in the K.
Friese and Associates map attached hereto as "Exhibit K," and any additions to the
Treatment System that may be added as provided in this Agreement. The Treatment
System consists of the Brushy Creek East Regional Wastewater Treatment Facilities,
and the Brushy Creek West Regional Wastewater Treatment Facilities.
"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,
Page 5 of 23
and includes any infiltration water that has migrated from the ground into the System, or
inflow water from above the ground entering the System.
ARTICLE 2.
SERVICES TO BE PERFORMED
2.1 Services.
The BRA will, in accordance with the terms and conditions hereof, operate and maintain
the System, as such operations are more particularly described in "Exhibit A,"
attached hereto and incorporated by reference herein. "Exhibit A" will herein after be
referred to as the "Scope of Work." The BRA shall operate and maintain the System in
accordance with Regulatory Requirements and Reasonable Standards.
2.2 Additional Services.
In contemplating performance under the terms of this Agreement, the BRA and the
Cities hereby acknowledge that from time to time, as requested, the BRA may provide
Additional Services to the Cities, which are related to the System but are not
contemplated by the Scope of Work established herein. In that regard, the BRA and the
Cities shall detail, by separate written instrument, a description of the services to be
performed, the cost of the service, and the terms and methods of compensation to BRA.
2.3 Direction to BRA
The Operations Committee, through the Point of Contact, shall provide guidance to
BRA, and direct BRA, as appropriate, regarding all terms and conditions of this
Agreement for the services provided by BRA.
2.4 Brushy Creek Regional Wastewater System Equipment
In performing the services contemplated herein, the BRA shall be entitled to utilize the
equipment, machinery, supplies and inventory set forth in "Exhibit B," attached hereto
and incorporated by reference herein, that shall remain the property of the System. The
BRA shall repair and maintain all equipment and machinery in accordance with its
condition and usable life as an Operating and Maintenance Expense. In addition, the
BRA may acquire as an Actual Annual Expenditure, from time to time, equipment and/or
tools to operate and maintain the System and these items shall be incorporated into
"Exhibit B," and become the property of the System upon termination of this
Agreement.
2.5 BRA Equipment
BRA may, from time to time, use BRA -owned, leased, or rented equipment in the
services of this Agreement set forth in "Exhibit C," attached hereto and incorporated by
reference herein. Such utilization shall be incorporated into the Annual Budget and paid
for as an Actual Annual Expenditure.
Page 6 of 23
2.6 Lease and Utilization of Premises and Equipment
The Cities shall allow utilization by BRA of the laboratory and related space, and
equipment, as more specifically described in "Exhibit D," attached hereto and
incorporated by reference herein.
2.7 Credit for Revenues
BRA shall collect revenues, in accordance with rates approved by the Operations
Committee, from any activity in which assets of the System are used by BRA or entities
other than the Cities. The Cities shall receive credit to the Operations and Maintenance
Budget for revenues generated by BRA for operation, maintenance and use of the
System, including but not limited to septic hauler discharge permits and fees, lab lease,
sludge processing, Forest Creek Golf Course reuse water, and interest income on funds
held by BRA under this Agreement. Such fees and permits shall be as more specifically
described in "Exhibit E."
ARTICLE 3.
REPAIR AND REPLACEMENT FUND
3.1 Repair and Replacement Fund.
The BRA shall include a Repair and Replacement Fund as set forth in "Exhibit F." The
costs associated with funding and replenishing the Repair and Replacement Fund shall
be incorporated into the Annual Budget and shall be held in an interest bearing account.
3.2 Determination of Necessity to Repair.
The BRA shall be responsible for determining the necessity of any Emergency Repairs.
Upon making any determination that Emergency Repairs are required, the BRA shall
promptly notify the Point of Contact of the Operations Committee. The BRA shall
procure, design, construct, acquire, and/or install any such improvements related to the
Emergency Repairs. At the request of the Operations Committee after the completion
of the Emergency Repairs and at Cities' expense, the BRA shall provide a written report
that specifies in reasonable detail the Emergency Repairs and the cause of the
emergency.
3.3 Restoration of Fund.
For each Fiscal Year, the BRA shall include, as a component of the Reconciliation
Value, an amount sufficient to restore the Repair and Replacement Fund to the
minimum balance as illustrated in "Exhibit F."
Page 7of23
ARTICLE 4.
CONDITIONS TO OBLIGATIONS OF PARTIES; OWNERSHIP OF FACILITIES
4.1 Ownership of Improvements and Repairs.
All Capital Improvements or Emergency Repairs shall become the property of the
System, recorded as an asset of the System, titled to the System, and insured by the
Cities to the extent required herein.
ARTICLE 5.
BUDGETS AND RECONCILIATION
5.1 Initial Budget
The Annual Budget for Fiscal Year 2010 as prepared by the BRA and previously
approved by the Cities, or portion thereof, for the System during the period between the
Commencement Date and the end of the Fiscal Year in which the Commencement Date
falls shall remain in effect to the end of the first Fiscal Year of this Agreement, and all
Monthly Compensation due under the Initial Budget shall be remitted directly to the BRA
as provided for in Section 6.3. The Operations Committee shall update the calculation
of the Annual Flow Percentages prior to the end of FY2010 and prior to the City of
Leander's delivery of Wastewater to the System.
5.2 Annual Flow Percentages.
On or before May 15th, prior to the beginning of each Fiscal Year, the Operations
Committee shall furnish the BRA with the Annual Flow Percentages. Budgeted
Operations and Maintenance Expenses, Management Fee, and unbudgeted Operations
and Maintenance Expenses charged to the Repair and Replacement Fund at the
direction of the Operations Committee shall be allocated to each City based on the
Annual Flow Percentages as set forth in "Exhibit G." Allocation of Capital Expenses
charged to the Repair and Replacement Fund at the direction of the Operations
Committee shall be based on the location in the System as illustrated in "Exhibit F."
5.3 Reserved Capacity
On or before May 15th, prior to the beginning of each Fiscal Year, the Operations
Committee shall furnish the BRA with a current inventory of Capacity Reservations, as
set forth in "Exhibit H," attached hereto and incorporated by reference herein. The
Operations Committee shall update the calculation of Capacity Reservations prior to the
end of FY2010 and prior to the City of Leander's delivery of Wastewater to the System.
5.4 Annual Budget Preparation.
On or before June 1st, prior to the beginning of each Fiscal Year hereafter, the BRA
shall furnish the Operations Committee with an updated estimate of the Annual Budget
(indicating amounts for each of the budgets comprising the Annual Budget), for the next
Fiscal Year plus an estimate of the Reconciliation Value for the current Fiscal Year.
The Operation and Maintenance Budget shall be calculated based upon the estimated
amount of Wastewater to be delivered to the System for the next Fiscal Year. An
Page 8 of 23
Annual Budget shall not be effective and final for the purposes of calculation and
payment of the Monthly Compensation until approved by Cities, and such approval shall
occur no later than July 15th of each year.
5.5 Notice of Monthly Compensation Calculation.
On or before August 1st, prior to the beginning of each Fiscal Year hereafter, the BRA
shall furnish the Operations Committee with a schedule of the Monthly Compensation to
be made by the Cities to the BRA for the next ensuing Fiscal Year, as illustrated in
"Exhibit I," attached hereto and incorporated by reference herein. Operations and
Maintenance Expenses and the Management Fee shall be allocated to Cities based
upon the Annual Flow Percentage. Capital Expenses shall be allocated to Cities based
on Reserved Capacity.
5.6 Monthly Budget Performance Reporting.
By the 25th of each month, the BRA will provide a report to the Operations Committee
documenting expenses related to the Annual Budget (indicating amounts for each of the
budgets comprising the Annual Budget) through the preceding month.
5.7 Adjustments.
If any changes in the "Scope of Work" as more particularly described in "Exhibit A,"
should occur, including, but not limited to, changes in Regulatory Requirements that
increase the cost of the Annual Budget, the BRA will be entitled to additional
compensation. The additional compensation will be negotiated in good faith by the
Operations Committee and the BRA within 30 days of receiving such request from the
BRA. The Monthly Compensation Calculation will be adjusted to reflect the additional
compensation and the new amount will be invoiced as soon as practical.
5.8 Calculation of Reconciliation Value.
On or around the 90th day following the close of a Fiscal Year, the Reconciliation Value
will be computed and may result in an increase or decrease on the remaining Monthly
Compensations for the current Fiscal Year.
ARTICLE 6.
FINANCIAL ISSUES
PRICES AND TERMS; PAYMENTS BY CONTRACTING PARTIES
6.1 Payments.
It is acknowledged and agreed that payments to be made under this Agreement will be
the primary source available to the BRA to provide for the Actual Annual Expenditures.
Payments made by the Cities under this Agreement shall be made from current
revenues available to the Cities.
Page 9 of 23
6.2 Compensation.
All services, work, and activity specified to be provided by the BRA to the Cities in this
Agreement will be provided as part of the Annual Budget, unless this Agreement
specifically states that the service, work, or activity is included in Additional Services.
6.3 Billing and Payment.
By the 15th of each month, the BRA will send an invoice to each of the Cities for the
Monthly Compensation for the subsequent month and any previously unbilled Additional
Services. BRA must receive full payment for the invoice from the Cities on or before the
15th day of the month following the invoice date (no later than 30 days) to prevent
Interest on Past Due Payment. All amounts due and owing the BRA by the Cities, if not
paid when due, shall bear interest at a rate equal to the sum of (1) one percent; and (2)
the prime rate as published in the Wall Street Journal on the first day of July of the
preceding fiscal year that does not fall on a Saturday or Sunday. The BRA shall have
the ability to terminate this Agreement without further liability or obligation in the event
that any of the Cities should remain delinquent in any payments due hereunder for a
period of ninety (90) days.
6.4 Audit.
The Cities have the right, subject to a three (3) business day notice and during normal
business hours, at their cost, to inspect or audit the BRA's books and records applicable
to this Agreement for any Fiscal Year to determine whether the BRA has complied with
the terms of this Agreement.
ARTICLE 7.
INSURANCE
7.1 Provision for Insurance.
(a) Following the execution of this Agreement, the BRA will have its insurance
carrier(s) issue direct to the Cities, certificates of insurance for the following insurance
coverage:
i) Workers Compensation Insurance as
prescribed by law .................................................. Statutory Limit
ii) General Liability .................. $5,000,000
The BRA shall ensure that the insurance coverage stated herein shall be maintained in
force throughout the term of this Agreement and the Cities shall be named as an
Additional Insured.
(b) Following the execution of this Agreement, the Cities will have their
insurance carrier(s) issue direct to the BRA certificates of insurance for the following
insurance coverage:
i) General Liability .... $5,000,000
Page 10 of 23
The Cities shall ensure that the insurance coverage stated herein shall be maintained in
force throughout the term of this Agreement and the BRA shall be named as an
Additional Insured. The City of Austin is self-insured and, in lieu of the above -required
insurance, may annually certify such fact to the BRA.
All policies evidencing the insurance required by this Section shall be maintained with
insurance companies qualified under
the laws of the State.
ARTICLE 8.
REGULATION OF QUALITY OF TREATED WASTEWATER
8.1 Treated Wastewater Quality.
In order to permit the BRA to properly treat and dispose of wastewater in compliance
with all Regulatory Requirements, to protect the public health, to permit cooperation with
other entities for the protection of the physical, chemical and bacteriological quality of
public water and watercourses, and to protect the properties of the System, the Cities
and the BRA agree that the quality of all wastewater discharged must be regulated.
The Cities hereby agree that the quality of the wastewater to be discharged by the
Cities shall comply with the parameters established by the BRA as set forth in "Exhibit
J," "Inadmissible Waste," attached hereto and incorporated by reference herein, and
the Permits issued to the Cities. In that regard, the Cities specifically agree that the
Wastewater that they shall discharge to the System for treatment, pursuant to this
Agreement, shall be in accordance with the parameters set forth in the pretreatment
requirements in the Permits.
8.2 Testing of Wastewater.
The BRA shall analyze samples of the Wastewater delivered hereunder at such
frequencies and in accordance with sampling and analytical procedures as required
from time to time by the BRA. The BRA shall be entitled to collect samples of
Wastewater in the System, at any Point of Entry, and at points within the City Systems
and cause the same to be analyzed by various applicable quantitative and qualitative
methods to determine if such Wastewater is within the established parameters. The
Cities may, at their option, also take and analyze similar, but not necessarily the same,
samples of their Wastewater. Other samples and measurements may be analyzed as
required by the Permits or other Regulatory Requirements. If analysis discloses that the
Cities' Wastewater is not within the allowable parameters, it shall be the Cities'
obligation to immediately cease discharging such Wastewater.
8.3 Reporting of Potential Violations.
In the event the Operations Committee becomes aware of any significant factor or event
that may affect the efficient operation or maintenance of the System or may result in a
violation of this Agreement or any Regulatory Requirements, the Operations Committee
shall immediately notify the BRA of such factor or event. In addition, the Cities agree to
Page 11 of 23
immediately tender to the BRA all correspondence received from any Federal, State, or
local regulatory agency, which relates to the System.
ARTICLE 9.
LIABILITY
9.1 Cities' Responsibility; BRA Responsibility.
If the Wastewater discharged into the System exceeds the System design parameters;
or fails to meet the standards established under the provisions of this Agreement; or
fails to comply with Regulatory Requirements and such Wastewater results in any of the
following: Permit exceedances; violations of any Federal, State or local law, rule,
regulation or ordinance; environmental damages or any other damage, the Cities (as
between BRA and the Cities) shall be responsible for all costs and expenses resulting
therefrom.
In performing the services contemplated by this Agreement, the BRA will use its best
efforts to maximize the System' performance; however, the BRA shall not be
responsible and the Cities shall be responsible for the costs and expenses of any fines,
penalties, liabilities, claims, damages, causes of action, resulting from any of the
following: loading exceeding the System design parameters; influent containing
abnormal, toxic, hazardous, and/or other substances which cannot be removed or
treated by the existing System or which contain discharges which violate applicable
sewage rules, regulations, and/or Permit levels; flow or conditions exceeding the design
parameters of the existing System; product water containing abnormal, toxic,
hazardous, and/or other substances which violate any and all Federal, State and local
statutes, rules, regulations, standards, levels or Permits; and/or any other problems
resulting from inability or inadequacy of the existing System.
BRA shall be responsible for the costs and expenses of liability, damages, injury or loss
(including administrative or civil fines and penalties) which may arise from BRA's breach
of any provision of this Agreement, or from BRA's negligent Operation and Maintenance
or willful acts, to the proportion such breach or negligence or willful act contributed to
the damages, injury, or loss.
9.2 Notice of Claim.
If any action or claim is brought against a Party to this Agreement based upon an
alleged act or omission in connection with the provision of the services contemplated by
this Agreement, the Party receiving notice shall immediately notify the other Parties of
such action, enclosing a copy of all papers served.
Page 12 of 23
9.3 Continuation of Responsibility.
The responsibilities of the Parties under this Agreement shall survive termination of this
Agreement to the extent such liabilities are attributable to actions or omissions before
such termination.
ARTICLE 10.
OPERATION OF FACILITIES
10.1 Independent Contractor
The BRA shall be responsible for the operation and maintenance of the System and will
be an independent contractor in fulfilling all of the obligations under this Agreement and
shall not sub -contract out the Operations and Maintenance responsibility for the
System.
10.2 Regulatory Action.
The Parties recognize that the obligations of the BRA to render services as provided in
this Agreement are subject to Regulatory Requirements, and the Parties agree to
cooperate to make such applications and to take such action as may be necessary or
desirable to obtain compliance therewith.
10.3 Inspection.
The Cities will permit the BRA and its environmental consultants, at BRA's discretion, to
enter each City's System during normal business hours to conduct an environmental
assessment to determine the environmental condition of each City's System, and to
have access to the records of the Cities directly related to each City's System with
twenty-four (24) hour notice.
ARTICLE 11.
TERM AND TERMINATION
11.1 Term.
Unless terminated pursuant to the provisions hereof or by mutual agreement of the
Parties hereto, this Agreement shall continue in force and effect until September 30,
2011.
11.2 Termination.
(a) This Agreement may be terminated as follows:
(i) By the BRA or the Cities upon written notice in the event of the
following:
(1) any Federal, State or local agency should fail to issue any of
the Permits or if any of the Permits should be revoked modified or
amended;
Page 13 of 23
(2) any order or ruling should be enacted, promulgated or
issued by any governmental agency having jurisdiction over the
subject matter of this Agreement and the effect of such change,
order or ruling makes it impossible or illegal for the BRA to perform
its obligations under this Agreement; or
(3) some other event occurs which makes the continued
operation of the System impossible;
(ii) By the BRA for any reason, upon providing not less than one
hundred eighty (180) days written notice to the Cities or by the Cities for
any reason, upon providing not Tess than one hundred eighty (180) days
written notice to the BRA.
(b) The Parties agree to notify each other immediately upon receipt of notice
of any action proposed by a Federal, State, or local agency to revoke, modify, or amend
any of the Permits or any action by any governmental agency having jurisdiction over
the subject matter of this Agreement proposing a change, order, or ruling which would
make impossible or illegal for the BRA to perform its obligations under this Agreement.
(c) Upon termination of this Agreement, all obligations of all of the Parties
under this Agreement shall terminate and be of no further force and effect, except to the
extent that it is specifically stated herein that any such obligations shall survive
termination.
(d) Upon termination of this Agreement, the BRA agrees to cooperate with the
Cities, where reasonably possible, to assist in the Cities' assumption of the operation
and maintenance of the System. Additionally Cities agree to pay BRA for all
outstanding amounts due under the terms of this Agreement.
ARTICLE 12.
MISCELLANEOUS PROVISIONS
12.1 Remedies Upon Default.
In the event of a dispute with respect to this Agreement, or if one Party believes that the
other Party is in default of any of the provisions in this Agreement, and such default has
not been cured within the time periods prescribed by this Agreement, prior to instituting
litigation, the Parties agree to first attempt to resolve such matter through direct
discussions in the spirit of mutual cooperation, and may engage in mediation or other
alternative dispute resolution methods as mutually agreed between the Parties. If
neither a negotiated nor mediated resolution is obtained, the Parties may pursue any
available legal or equitable remedy, including specific performance and mandamus. No
right or remedy granted herein or reserved to the Parties is exclusive of any other right
or remedy herein by law or equity provided or permitted; but each shall be cumulative of
Page 14 of 23
every other right or remedy given hereunder. The Parties expressly agree that this
Agreement constitutes a contract for goods and services in accordance with Chapter
271, Subchapter I of the Texas Local Government Code in that BRA shall be providing
wastewater treatment and disposal services to the Cities and that the provisions thereof
apply to and govern claims regarding this Agreement, with the exception that attorneys
fees are expressly excluded and shall not be awarded to any Party under any
circumstances.
12.2 Force Majeure.
In the event any Party to this Agreement is rendered unable, wholly or in part, by force
majeure to carry out any of its obligations under this Agreement, excluding the
obligation to make the payments required under this Agreement, then the obligations of
such Party to the extent affected by such force majeure and to the extent that due
diligence is being used to resume performance at the earliest practicable time, shall be
suspended during the continuance of any inability so caused to the extent provided but
for no longer period. As soon as reasonably possible after the occurrence of the force
majeure relied upon, the Party whose contractual obligations are affected thereby shall
give notice and full particulars of such force majeure to the other Party. Such cause, as
far as possible, shall be remedied with all reasonable diligence. The term "force
majeure," as used herein, shall mean acts of God, strikes, lockouts or other industrial
disturbances, acts of the public enemy, orders of any kind of the government of the
United States or the State or any civil or military authority other than a party to this
Agreement, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires,
hurricanes, storms, floods, washouts, droughts, arrests, civil disturbances, explosions,
breakage or damage to machinery or equipment, or impossibility by operation of law,
which are not within the control of the party claiming such inability and such problem
could not have avoided by the exercise of due diligence and care. It is understood and
agreed that any force majeure shall be remedied with all reasonable dispatch.
12.3 Waiver.
No waiver on any breach or default (or any breaches or defaults) by any Party hereto of
any terms, covenants, conditions, or liability hereunder, or of performance by the other
party of any duty or obligation hereunder, shall be deemed or construed to be a waiver
of subsequent breaches or defaults of any kind under any circumstances.
12.4 Addresses and Notices.
All notices which the BRA or the Cities may be required, or may desire, to serve on the
other shall be in writing and shall be served by personal delivery or by depositing the
same with the U.S. Postal Service, first-class or certified mail, postage prepaid, return
receipt required, and addressed to the respective party at the addresses set forth below.
All notices shall be deemed received within five (5) business days of deposit in the mail.
The addresses stated shall be effective for all notices to the respective Parties until
written notice of a change of address is given pursuant to the provisions hereof:
Page 15 of 23
BRA:
Brazos River Authority
4600 Cobbs Drive
P.O. Box 7555 Waco, Texas 76714-7555
CITIES:
(for Notices)
Round Rock:
City of Round Rock
211 E. Main St.
Round Rock, Texas 78664
Attn: City Manager
CC: Steve Sheets
309 E. Main Street
Round Rock, Texas 78664
(Round Rock City Attorney)
Cedar Park:
City of Cedar Park
600 North Bell Blvd.
Cedar Park, Texas 78613
Attn: City Manager
CC: City Attorney
Austin:
City of Austin
Austin Water Utility
P.O. Box 1088
Austin, Texas 78767
Attn: Director
CC: Sharon Smith
Assistant City Attorney
Law Department
City of Austin
P.O. Box 1088
Austin, Texas 78767
Page 16 of 23
Leander:
City Manager
City of Leander
200 West Willis Street
Leander, Texas 78641-1781
Fax No. (512) 528-2831
City Engineer
City of Leander
200 West Willis Street
Leander, Texas 78641-1781
Fax No. (512) 528-2831
CC: Knight & Partners
Attorneys at Law
223 West Anderson Lane #A-105
Austin, Texas 78752
Fax No. (512) 323-5773
CITIES:
(for Invoices)
City of Round Rock
211 E. Main St.
Round Rock, Texas 78664
Attn: Accounts Payable
City of Cedar Park
600 North Bell Blvd.
Cedar Park, Texas 78613
Attn: Accounts Payable
City of Austin
Austin Water Utility
P.O. Box 1088
Austin, Texas 78767
Attn: Accounts Payable
City of Leander
P.O. Box 319
Leander, Texas 78646-0319
Attn: Director of Finance
Page 17 of 23
The Parties shall have the right from time to time and at any time to change their
respective addresses and each shall have the right to specify as its address any other
address by at least 15 days written notice to the other Parties.
12.5 Modification.
The authorized representatives of the Cities and BRA may not amend this Agreement
except that through mutual consent, the Operations Committee and BRA may amend
any exhibit attached hereto and incorporated by reference herein to reflect changes,
corrections, additions, or deletions to items contained within the exhibits attached hereto
and incorporated by reference herein.
12.6 Assignability of this Agreement.
This Agreement, and all rights, duties and obligations hereunder, shall not be
assignable by either Party without the prior written consent of the other Party.
12.7 Parties in Interest.
This Agreement shall be for the sole and exclusive benefit of the BRA and the Cities,
and shall not be construed to confer any benefit or right upon any third party.
12.8 Severability.
The provisions of this Agreement are severable and if any part of this Agreement or the
application thereof to any person or circumstance shall ever be held by any court of
competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of
this Agreement and the application of such part of this Agreement to other persons or
circumstances shall not be affected thereby.
12.9 Representations and Warranties.
Each party hereto represents and warrants to the other that (1) such party is validly
existing and operating under the laws of the State of its creation or incorporation, as
applicable, and the laws of the State; (2) such party has full requisite power and
authority to perform its obligations under this Agreement; (3) the execution, delivery,
and performance of this Agreement has been authorized by all necessary action of the
governing body, or board of directors, as applicable, of such Party; (4) this Agreement is
a valid and binding obligation of such Party enforceable against such Party in
accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, or other law affecting creditors rights generally and by general
equitable principles; and (5) the execution, delivery, and performance of this Agreement
by such party does not, and will not (A) violate the statute, character or other instrument
pursuant to which such party was created; (B) violate the Constitution of the State, or
any other law, rule, or regulation by which such party is bound; (C) violate any
judgment, writ, order, injunction, award, or decree of any court, arbitrator, administrative
agency or other governmental authority which is binding upon such party; or (D) result
in a material breach, violation, or default under any indenture, covenant, mortgage,
ordinance, bond resolution, contract, deed of trust, debenture, agreement, or other
instrument to which such Party is a party.
Page 18 of 23
12.10 Merger.
This Agreement, together with the exhibits attached hereto and incorporated by
reference herein, constitutes the entire Agreement between the Parties relative to the
subject matter hereof.
12.11 Future Agreement.
The inclusion of terms and conditions in this Agreement shall not be interpreted as
agreement among the Parties to include the same or similar terms and conditions in
future agreements among the Parties pertaining to the same subject matter.
12.12 Joinder of City of Leander
The Parties agree that the City of Leander may be joined in this Agreement upon the
City of Leander's execution of the attached "Exhibit L," and shall immediately be
considered either a City or a Party as further defined within this Agreement.
Page 19 of 23
BRAZOS RIVER AUTHORITY
By:
Attest:
By:
Nancy A .am , Executive Assistant
Phil Ford, General INlanager/CEO
Page 20 of 23
CITY OF AUSTIN, TEXAS
By: +�
Rudy Gar , ista t City Manager
Page 21 of 23
CITY OF CEDAR PARK, TEXAS
Attest:
By: g 1 6/1 23 Cfr2 e. . ". . ''''''. r .
LeAnn Quinn, City Secretary
Bob Lemon, Mayor
Page 22 of 23
Attest:
By:
CITY OF ROUND ROCK, TEXAS
By:
Sara White, City Secretary
Alan McGraw, Mayor
Page 23 of 23
List of Exhibits
Section 2.1 "Exhibit A" Scope of Work
Section 2.4 "Exhibit B" Brushy Creek Regional Wastewater
System Equipment Inventory
Section 2.5 "Exhibit C" BRA Equipment Inventory
Section 2.6 "Exhibit D" Leased Premises
Section 2.7 "Exhibit E" Fees and Permit Revenues
Section 3.1 "Exhibit F" Repair and Replacement Fund
Example
Section 5.2 "Exhibit G" Annual Flow Percentages & Winter
Water Averaging Calculation
Section 5.3 "Exhibit H" Reserved Capacities
Section 5.5 "Exhibit I" Monthly Compensation Example
Section 8.1 "Exhibit J" Inadmissible Waste
Definitions "Exhibit K" System Information
Section 12.2 "Exhibit L" Joinder of the City of Leander
Page 1
Exhibit A
Scope of Work
BRA will:
Personnel Staffing
1. Provide qualified personnel to operate and maintain the System, described
more fully in Exhibit K, pursuant to this Agreement. The BRA will staff the
System to meet the requirements specified in the Permits and budgeted level
of service.
2. Identify BRA employees and vehicles with badges and/or appropriate decals.
3. Manage any BRA personnel issues of BRA personnel operating and
maintaining the System such as hiring, worker's compensation, termination,
performance counseling, safety, and training.
4. Minimize overhead expenses and administrative costs.
5. Provide a semi-annual and annual report on direct labor charges in the format
presented in the budget adopted by the Operations Committee.
6. Use generally accepted accounting and internal control standards in
performing all financial transactions.
Communications
7. Respond to inquiries, complaints, and concerns in a professional, courteous,
and timely manner. Use best efforts to promote good relations with the Cities'
customers, stakeholders, regulators, and residents.
8. Monitor and track all complaints and inquiries received from the public, if any.
Notify the Point of Contact of all complaints and inquires.
9. Respond to any routine inquiries or reporting requirements of any
governmental authority or their consultants in a prompt and professional
manner.
10. Communicate in a proactive, prompt, and professional manner to affected
parties, media, stakeholders, and regulators regarding overflows, or other
operations and maintenance matters that will affect the public. Promptly
notify the Point of Contact of such communications.
Page 2
Coordination of Services and Operations
11. Coordinate operations and maintenance of the System with neighboring
entities or corporations as necessary or as requested by the Operations
Committee.
12. Coordinate with other Cities' advisors, including attorneys, engineers,
accountants, and financial consultants as necessary or as requested by the
Operations Committee.
Meeting Preparations and Attendance
13. Attend City Council meetings and any special meetings at which the
Operations Committee requests the BRA's attendance. Provide routine
operating and financial information.
14. Attend regular Operations Committee meetings regarding the System.
Provide routine operating and financial information.
Permits and Document Management
15. Complete, in a timely manner, all required documentation and pay all fees for
TCEQ, United States Environmental Protection Agency, the Permits related to
the operation and maintenance of the System, including but not limited to the
monthly discharge monitoring reports, industrial stormwater monitoring and
reporting, sanitary sewer overflow reports and the annual pretreatment
program report.
16. Dispose of records in accordance with BRA records retention policies.
17. Prepare and present to the Operations Committee for approval all
applications to the TCEQ for renewals of the Permits. Coordinate with the
Operations Committee on such renewal processes, including review and
comment on draft Permit revisions proposed by TCEQ.
18. Manage and maintain in an efficient, organized, and readily available manner
in the original format provided, using information technology tools as
appropriate, the following to the extent possible:
• all System plans and specifications, as -built drawings, records, and
easements delivered to BRA by the Cities, in a readily available and
organized manner, copies of contracts made with vendors, and
consultants,
• a comprehensive and detailed asset listing of the components of the
System delivered to BRA by the Cities,
Page 3
• a comprehensive and detailed list of easements associated with the
System provided by the Cities,
• water quality analyses,
• billing documents and all budgets,
• documentation of overflows, bypasses, and System failures,
• documents related to Points of Entry into the System delivered to BRA by
the Cities,
• documentation of repairs to the System by BRA after the effective date of
this Agreement,
• a comprehensive list (Exhibits B and C) and documentation of
maintenance of System equipment and vehicles,
• documentation of safety issues and actions,
• internal and vendor inspection reports,
• documentation of inflow and infiltration studies of the System and actions,
as delivered to BRA by the Cities, and
• flow data collected from metering equipment located at Points of Entry and
along the interceptors in the System.
Budget and Accounting
19. Make recommendations and prepare the Annual Budget in a timely manner.
Provide the Operations Committee a copy of the documents and backup
documentation if requested.
20. Monitor, track, and regularly report the expenses related to the Annual
Budget.
21. Submit accurate and timely billings to the Cities in accordance with this
Agreement.
22. Promptly pay all vendors and third party contractors. All penalties and
interest due on late payments shall be BRA's responsibility and shall not be
charged to the Cities, unless such penalties and interest due are based upon
the direction of the Point of Contact.
23. Accurately reflect all Cities' payments prior to any Reconciliation Value
calculations.
24. File and monitor any insurance claims in a timely manner.
25. Inventory and maintain a listing of System equipment and vehicles, and the
value of all such assets that are acquired after the execution of this
Agreement.
Page 4
System Monitoring and Emergency Response
26. Maintain 24 -hour -per -day telephone dispatch service, with qualified personnel
available to respond in the event of an emergency. The telephone number for
such service shall be displayed at all gated facilities of the System.
27. Emergency services shall include services required as a result of a hazardous
condition, or problem that would cause an unauthorized discharge or damage
to personal property, a Permit violation, endanger the public's health and
safety, a serious degradation of water quality at one or more customer
locations or a condition which, in the opinion of BRA or Cities' representative,
poses an immediate threat to develop into one of the emergencies listed
above. In the event of an emergency, the BRA shall have the authority to act
without special instruction or authorization from the Cities in order to prevent
or minimize damage, injury or Toss resulting from such emergency.
28. Ensure all System lift stations and other critical equipment have reliable alarm
systems to monitor equipment operations, capacities, and electrical power.
29. Monitor and respond to any automated alarm systems installed in the System.
30.Assist in inspections related to Cities connections to the Collection System.
31. Manage federal Risk Management Program (40 CFR 68); provide compliance
oversight for applicable Environmental, Health and Safety, Security and
Emergency Management regulatory requirements. Identify non -compliances,
provide recommendations, and implement corrective actions as appropriate.
Notify the Operations Committee of respective program activities according to
contract provisions.
32. Coordinate, manage and report overflow response and remediation for the
System.
33.Advise the Operations Committee of recommended Capital Improvements
when necessary and as part of the Annual Budget preparation.
34. Advise the Point of Contact of Emergency Repairs in a timely manner.
35. Monitor flows and respond to odor complaints in the System. Monitor
permitted water quality characteristics in the System. Advise the Operations
Committee of anomalies, trends, and results of improvements.
36. Provide all verbal and written notice of Permit exceedances or violations to
the TCEQ in accordance with the provisions of the Permits and copy the Point
of Contact on such notifications.
Page 5
37. Provide all responses to TCEQ inspections in consultation with the
Operations Committee. Implement any corrective actions requested by
TCEQ and notify the Operations Committee.
38. Respond to all overflows and System failures in a timely, organized, and
efficient manner to minimize or eliminate environmental, public health and
safety, and financial impacts.
Operation of System
39. Provide personnel, materials, vehicles, equipment, and hand tools necessary
for the routine operation of the System. Brushy Creek Regional Wastewater
System equipment as described in Exhibit "6" of this Agreement will be made
available to BRA personnel for continued use on the System. The BRA shall
replenish all supplies necessary for the continuing operation of the System.
Reasonable office space and vehicle parking will be provided at the
Treatment System, at no charge to BRA, for only those System -related
activities.
40. Provide licensed operators to operate the System and to perform all
inspections, tests, sampling and laboratory analyses of such System in
compliance with Regulatory Requirements, the Permits, or by this Agreement.
41. Exercise and repair System valves, equipment, vehicles, and off-line
equipment as necessary to maintain reliable performance.
42. Optimize the use of chemicals and electricity for the System.
43. Manage all contracted services related to the System daily operations such
as chemical delivery, sludge disposal, and liquid waste acceptance.
44. Ensure that the approved pretreatment program complies with all Regulatory
Requirements. Ensure that all owners or participating Cities are notified of
the requirements of the approved pretreatment program.
45. Assist with capital improvement projects, including Edwards Aquifer Recharge
Zone compliance requirements, as an Additional Service as requested by the
Operations Committee and agreed to by BRA.
Inspection of System
46. Inspect the Treatment System, as identified in Exhibit K, each weekday
(Monday — Friday), and maintain a daily log of each inspection, reflecting
the date and time of each inspection, the personnel performing the
inspection, and any action taken, as part of the permanent records of the
Page 6
System. Provide such services on weekends and holidays as needed to
ensure proper operation of the System.
47. Inspect the Collection System, as identified in Exhibit K, on a periodic basis
and as deemed necessary, and maintain a log of each inspection, reflecting
the date and time of each inspection, the personnel performing the
inspection, and any action taken, as part of the permanent records of the
System.
48. Make periodic general observations of System equipment, and vehicles, and
provide recommendations for Capital Improvements in a timely manner and
as part of the Annual Budget preparation.
Maintenance and Repair of System
49. Maintain a scheduled maintenance program including an updated
maintenance checklist, schedule of maintenance, and replacement program
based on equipment manufacturers' recommendations and staff experience.
50. Perform all preventive maintenance, including, but not limited to, routine
cleaning, lubrication and adjustment of equipment, cleaning or replacement of
filters and belt adjustments required pursuant to the scheduled maintenance
program established in accordance with the preceding subparagraph, and
record all equipment serviced and the procedures and supplies utilized in
order to provide an up-to-date history of all service, maintenance and
replacements provided. As directed by the Operations Committee, the BRA
will be responsible for maintaining all manufacturers' warranties on System
equipment and vehicles purchased for the System after the Effective Date of
this Agreement.
51. Monitor, track, and report the amount of preventive maintenance compared to
reactive maintenance.
52. Inspect, clean and maintain appearance of System, including mowing and
trimming of ground cover, in accordance with industry standards.
53. Use generally accepted business practices to procure materials and
replacement equipment. The BRA shall not be responsible to the Operations
Committee for any guarantees in connection with such materials or
replacement equipment. The BRA shall use its best efforts to maintain the
normal guarantees applicable in the particular industry manufacturing such
materials or replacement equipment.
Page 7
Reporting
54. Complete and certify any documents required for routine self-monitoring
and/or self -reporting purposes. Prepare and submit all routine operational
and/or regulatory reports required by the Permits and in compliance with
Regulatory Requirements.
55. Prepare monthly reports in a format and method acceptable to the Operations
Committee showing:
• gallons treated for the month and cumulatively,
• variance report for the budget and actual expenses,
• percentage of preventive maintenance activities compared to preventive
and reactive maintenance,
• kWh per million gallons treated,
• chemical dosage per million gallons treated per chemical,
• wastewater inflow parameters versus treated discharge parameters in
relation to permit requirements, and
• operational issues and associated corrective actions for problems with
wastewater quality, major equipment, overflows, inflow and infiltration,
safety, etc.
Page 8
Exhibit B to Wastewater Services Operating Agreement Between the Brazos
River Authority, City of Round Rock, City of Cedar Park,
and City of Austin
FACILITY EQUIPMENT INVENTORYFOR THE BRUSHY CREEK REGIONAL
WASTEWATER SYSTEM
April , 2010
City of Round Rock
City of Cedar Park
City of Austin
Brazos River Authority
(Original on file with Brushy Creek Regional Wastewater System records)
Page 9
Exhibit C
BRA Equipment Inventory
These are assets that the Brazos River Authority has purchased through the BCRWS
Operating budget, unless noted otherwise. These assets, if not retired before the
termination of this Agreement, will revert to the System upon the termination of this
Agreement.
Asset Location
Asset #
Description
In Service
date
Life
(Months)
Cost
BCRWS East Plant
1899
Chlorine Process Analyzer
8/1/2000
120
$6,770.00
BCRWS East Plant
1902
Master Tool Set
8/1/2000
120
$7,106.96
BCRWS East Plant
1913
One Ton Crane
12/1/1996
120
$7,003.00
BCRWS East Plant
1968
Oxygen Analyzer
12/1/2000
60
$16,305.00
BCRWS East Plant
2326
DO Analyzer
11/1/2003
84
$15,690.00
BCRWS East Plant
2490
John Deere Tractor & Loader
6/29/2007
120
$24,198.00
BCRWS East Plant
2553
VibrAlign Laser Alignment
6/18/2008
120
$6,856.05
BCRWS East Plant
2615
Mixing Unit (Anoxic Zone)
2/28/2009
120
$18,468.00
BCRWS East Plant
8569
2003 Ford F-250 Truck
4/1/2003
60
$27,926.00
BCRWS East Plant
5467
2004 Ford Ranger
3/1/2004
60
$10,697.00
BCRWS East Plant
5468
2004 Ford Ranger
3/1/2004
60
$10,697.00
BCRWS East Plant
1922
2004 Chevy 2500
12/1/2003
60
$20,595.00
BCRWS East Plant
2199
2007 Ford F 500 w/ Crane
2/7/2007
60
$58,983.00
BCRWS East Plant
9241
2009 Ford F150
2/11/2009
60
$14,086.00
BCRWS East Plant
2676 (1)
Polaris
12/31/2009
84
$5,637.00
BCRWS East Plant
2677 (1)
Polaris
12/31/2009
84
$5,637.00
BCRWS East Plant
2678 (1)
Polaris
12/31/2009
84
$5,637.00
(1) The three Polaris Rangers were originally purchased by LCRA through the Expansion Construction.
The titles were sent to the City of Round Rock after the divestiture. The City of Round Rock forwarded
the titles to BRA. BRA has put the titles in BRA's name.
Page 10
Exhibit D
Leased Premises
Brushy Creek Adminibtrat.ion RuLlding - Lab Space
Moll 4M A Aa3OCIA1FA
iuee�+�reere, wa. ��
442 I
�``
...sok leans IfiL No..A�p^rrK
The lab space to be utilized by the BRA under Section 2.6 of the Agreement is highlighted
in yellow above.
Page 11
Brazos River Authority
Calculation of monthly rent for BCRWS lab space
Total area of the building
Area of the lab only 631
Area of the offices associated with the lab 160
Total sq ft of lab space 791
% of total bldg sq ft devoted to lab 10.21%
Total cost of the building and contents
Amortize over 20 years
Monthly amortization of building
% devoted to lab
monthly amortization of lab
Monthly occupancy charges
Electricity 1,800
Water 80
Phone 400
Janitorial 525
% devoted to lab
2,805
10.21%
Monthly occupancy charges 286.33
7749 sq ft
$ 2,610,781
240 months
$ 10,878.25
10.21%
$ 1,110.43
Total monthly rental amount - building amortization plus occupancy charges
Round to even number - this is the monthly rental charge for the lab space
Page 12
$ 1,396.75
$ 1,400.00
Sludge Disposal
Exhibit E
Fees and Permit Revenues
Fiscal Year 2009 9/08-8/09 Revenue
gallons $/1000 Gal
Hutto WWTP 2,628,500 11.8550 $31,160.76
Liberty Hill
WWTP 261,450 14.7558 $3,857.90
Sandy Creek
SWTP 329,000 45.2200 $14,879.26
Septage 2009 Annual 1/1/09-12/31/09
Annual Fees $534.00
15.00 for the first truck then $1.00 per each additional truck.
Septage Disposal Rate
$0.045226 per gallon or $45.226 per 1000 gallons. $100,926.89
Page 13
0.00% 83.38% 16.62%I
0.00% 44.05%I
Exhibit F
Repair and Replacement Fund Example
BCRWS R&R Fund
Established January 1, 2010
Initial Deposit (1)
FY 2010 Capital expenses (2)
Rehab of manhole in Node G
Repairs to Lake Creek Interceptor
Total FY 2010 Capital expenses
FY 2010 O&M Expenses (3)
Vac truck for spill clean up at plant
Balance before interest earnings
FY 2010 Interest earned (4)
Balance at 9/30/10
Amount to be replenished
Monthly billing amount to replenish
Total ' , Round Rock Cedar, Par
Initial Funding %I
40.00% 40.00%
istin
20.00%
100,000.00 40,000.00 40,000.00 20,000.00
Node G %
18,394.00
LC Intercept %
12,596.00
0.00
15,336.92
3,057.08
55.95%
7,047.46
0.00
5,548.54
30,990.00 7,047.46 15,336.92 8,605.62
FY 10 Flow %
15,000.00
78.50% 16.25% 5.25%
11,775.00
2,437.50
787.50
54,010.00 21,177.54 22,225.58 10,606.88
3,000.00 1,191.69 1,212.11 596.20
57,010.00
42,990.00
3,582.50
22,369.23 23,437.69 11,203.08
17,630.77
1,469.23
(1) transferred from carry-over funds, allocated based on capacity reservation for treatment facilities
(2) Allocated to customers based on capacity reservation percentages by node
(3) Allocated based on current year flow percentages
(4) Allocated based on average of beginning and ending fiscal year balance
Page 14
16,562.31
1,380.19
8,796.92
733.08
Exhibit G
Winter Water Averaging Calculation
& Annual Flow Percentages
For the period 10/1/2009 thru 9/30/2010
To be updated by the Operations Committee by May 15 of each year
City of Cedar Park
City of Austin
City of Round Rock
Brushy Creek MUD
Fern Bluff MUD
Total City of Round Rock
16.25%
5.25%
66.61%
8.97%
2.92%
78.50%
Grand Total 100.00%
Page 15
Exhibit H
Reserved Capacities
To be updated by the Operations Committee by May 15 of each year
Capacity Reservations in Brushy Creek Regional Wastewater
System Component
Cedar Park
Austin
Round Rock
Node 1 From 1 To
Brushy Creek Interceptor - Upstream Collection System
A C1-30 C1-17
100.00%
0.00%
0.00%
B C1-17 C2-31
100.00%
0.00%
0.00%
C C2-31 C2-23
90.78%
9.22%
0.00%
D C2-23 C2-16
90.90%
9.10%
0.00%
E C2-16 C2-9
87.30%
12.70%
0.00%
F C2-9 C2 -1B
86.11%
13.89%
0.00%
G C2 -1B C3-22
83.38%
16.62%
0.00%
H C3-22 C3-18
87.16%
12.84%
0.00%
C3-18 C3-13
86.09%
12.68%
1.23%
J C3-13 C3-1
82.66%
12.18%
5.16%
Brushy Creek Interceptor - Downstream Collection System
K C3-1 C20-28
72.73%
10.73%
16.54%
L C20-28 C20-8
71.88%
10.60%
17.52%
M C20-8 C21-1
45.23%
35.60%
19.17%
N C21-1 C6 -12A
40.27%
31.71%
28.02%
O C6 -12A C6-1
38.84%
30.59%
30.57%
P C6-1 C9-1
35.16%
27.73%
37.11%
Q C9-1 C6A-21
34.17%
26.94%
38.89%
R C6A-21 C6A-12
33.26%
26.25%
40.49%
S C6A-12 C6A-1
32.61%
25.72%
41.67%
Onion Creek Interceptor
0.00%
0.00%
100.00%
Onion Creek Relief Interceptor
0.00%
0.00%
100.00%
Southwest Interceptor
0.00%
44.05%
55.95%
South Interceptor
0.00%
44.05%
55.95%
Lake Creek Interceptor
0.00%
44.05%
55.95%
Treatment Facilities
Percent of Treatment Facilities
14.61 %
3.43%
81.96%
Avg Daily Flow Capacity
3.58
0.84
20.08
Total Plant Capacity in MGD
24.50
Page 16
Exhibit I
Monthly Compensation Example
Brazos River Authority
Calculation of O&M charges to BCRWS customers
FY 2010
All amounts are per Customer Budget Presentation dated 6/9/09
1) Monthly Amount due to BRA for O&M
BRA O&M budget for BCRWS for FY 2010
Less over -recovery from FY 2008
Net amount due from BCRWS customers for FY 2010
Monthly amount due from BCRWS customers
2) Allocated as follows (based on billable flows)
City of Round Rock
Sub -Regional Customers (1)
Total City of Round Rock Allocation
City of Cedar Park
City of Austin
$ 5, 342, 761.00
(12,232.00)
5,330,529.00
/ 12 mos.
$ 444,210.75
66.62%
11.88%
78.50%
16.25%
5.25%
100.00%
(1) Round Rock is taking on sub -regional customers Brushy Creek MUD and Fern Bluff MUD
3) Calculation of monthly amount due from each customer
Monthly amount due from BCRWS customers $ 444,210.75
City of Round Rock
City of Cedar Park
City of Austin
Page 17
78.50% 348,705.44
16.25% 72,184.25
5.25% 23,321.07
100.00% $ 444,210.76
Exhibit J
Inadmissible Wastes
In accordance with the provisions of Article 8 of the Wastewater Services Agreement, the Cities
agree to comply with 40 CFR 403.5, "National pretreatment standards: Prohibited discharges"
and TCEQ-Approved Pre -Treatment Program for the system. Additionally, each City agrees not
to discharge, or allow to be discharged, to the System any pollutant which causes pass-through
or interference with the operation of the Treatment System, or causes a violation of the
Treatment System's Federal or State discharge permit.
Page 18
• 1
Exhibit K
System Information
"System" means the existing Brushy Creek Regional Wastewater System components as
detailed in the K. Friese and Associates map dated 2/2/2010, attached hereto as a part of
this Exhibit, and any additions to the System that may be added as provided in this
Agreement. The System consists of the Collection System and the Treatment System.
• "Treatment System" means the wastewater treatment system and any additions
to the Treatment System that may be added as provided in this Agreement. The
Treatment System consists of the Brushy Creek East Regional Wastewater
Treatment Facilities, and the Brushy Creek West Regional Wastewater
Treatment Facilities.
• "Collection System" means the wastewater collection system and any additions
to the Collection System that may be added as provided in this Agreement. 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, Lake Creek Interceptor, the Southwest
Interceptor, and the South Interceptor.
Page 19
4
1
EXHIBIT L
JOINDER OF THE CITY OF LEANDER TO THE WASTEWATER SERVICES
OPERATING AGREEMENT BETWEEN BRAZOS RIVER AUTHORITY, CITY OF
ROUND ROCK, CITY OF CEDAR PARK, AND CITY OF AUSTIN
Pursuant to Section 12.12 of the "Wastewater Services Operating Agreement
Between the Brazos River Authority, City of Round Rock, City of Cedar Park, and City
of Austin" dated , 2010 (the "Operating Agreement"),
upon execution by the duly authorized representative of the City of Leander below, the
City of Leander shall join in and be a party to the Operating Agreement and the term
"Cities" or "City" or "Parties" or "Party" as defined in such Operating Agreement shall
include the City of Leander and the City of Leander shall have all such rights and duties
as set forth in the Operating Agreement applicable to the "Cities" or "Parties", provided,
however, that the City of Leander's duty to pay for Annual Budget Costs, as defined in
the Operating Agreement and determined by the Operations Committee, shall be limited
to only those costs and expenses associated with the Collection System and not those
associated with the Treatment System until such time as the City of Leander acquires
an ownership interest in the Treatment System, and all appropriate terms, conditions,
provisions and exhibits to the Operating Agreement shall be adjusted as necessary to
effect this intent.
ATTEST:
By:
Deb • ie Haile, City Secretary
CITY OF LEANDER
By:
Page 20
et9evt---------
Cowman, Mayor