R-10-05-13-11C3 - 5/13/2010RESOLUTION NO. R -10-05-13-11C3
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; and
WHEREAS, on December 8, 2009, the Cities entered into that one
certain Master Contract for the Financing, Construction, Ownership,
and Operation of the Brushy Creek Regional Wastewater System, (the
"Master Contract"); and
WHEREAS, the City of Leander desires to enter into an
agreement with the Cities to allow Leander to deliver wastewater to
the BCRWWS to treat a portion of the wastewater generated by
Leander; Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,
TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City a Wastewater Service Agreement with the City of
Leander, a copy of same being attached hereto as Exhibit "A" and
incorporated herein for all purposes.
The City Council hereby finds and declares that written notice
of the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to
the public as required by law at all times during which this
Resolution and the subject matter hereof were discussed, considered
and formally acted upon, all as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended.
O:\wdox\SCC1nts\0112\1005\MUNICIPAL\00191411.DOC/rmc
RESOLVED this 13th day of May, 2010.
ATTEST:
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SARA L. WHITE, City Secretary
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(1 )1, ./L.,
ALAN MCGRAW, Mayor
City of Round Rock, Texas
WASTEWATER SERVICE AGREEMENT
BETWEEN THE
CITY OF ROUND ROCK
AND
THE CITY OF LEANDER
RECITALS
1 EXHIBIT
„A„
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; and
Whereas, on December 8, 2009, the cities of Austin, Cedar Park and Round Rock entered
into that one certain Master Contract for the Financing, Construction, Ownership, and Operation
of the Brushy Creek Regional Wastewater System, (the "Master Contract"); and
Whereas, on . the cities of Austin, Cedar Park and Round Rock and the
Brazos River Authority ("BRA") entered into that one certain Wastewater Services Operating
Agreement Between Brazos River Authority, City of Round Rock, City of Cedar Park, and City
of Austin, (the "Operating Agreement"); and
Whereas, the BCRWWS is made up of two major components, namely the wastewater
collection system and the wastewater treatment system; and
Whereas, the city of Leander desires to enter into appropriate written agreements with the
cities of Austin, Cedar Park and Round Rock to allow Leander to deliver wastewater to the
BCRWWS to treat a portion of the wastewater generated by Leander; and
Whereas, Leander is negotiating one or more agreements with Austin, Cedar Park, and
Round Rock to purchase a portion of the surplus capacity in the BCRWWS wastewater collection
system; and
Whereas, Round Rock has surplus capacity in the BCRWWS wastewater treatment
system that it is willing to make available to Leander on a temporary basis until this Agreement is
terminated in accordance with the terms hereof; and
Whereas, Leander desires to purchase from Round Rock the right to utilize Round Rock's
surplus wastewater treatment capacity; Now Therefore
This Wastewater Service Agreement ("Agreement") is entered into by and between the
City of Round Rock ("Round Rock") and the City of Leander ("Leander") to be effective as of
the 13th day of May, 2010.
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITION OF TERMS. Certain of the capitalized terms and expressions
used in this Agreement, unless the context clearly shows otherwise, shall have the following
meanings:
A. "Agreement" means this agreement.
Wastewater Service Agreement- FINAL- 5-5-10 (00191574) (2).DOC
B. "Austin" means the City of Austin, Texas
C. "Cedar Park" means the City of Cedar Park, Texas
D. "Cities" mean the cities of Austin, Cedar Park, and Round Rock.
E. "Leander" means the City of Leander.
F. "Leander's Annual Flow" means the amount of wastewater generated in Leander's
Service Area and delivered to the System on an annual basis as calculated in accordance with
Section 8.2 of the Master Contract and with the methodology developed by K. Friese &
Associates, attached to the Master Contract as Exhibit A.
G. "Leander Base Charges" means the cost allocated to Leander of the portion of Round
Rock's debt allocable to the Treatment Plant and necessary to serve Leander, which cost is hereby
agreed to be $14,059 per month.
H. "Leander Contractual Flows" means up to, but no more than, 1.0 MGD of daily peak
flow of Wastewater to be delivered by Leander into the Point of Entry for the System.
I. "Leander 0 & M Charges" means that portion of the Round Rock Operation and
Maintenance Expense for the Treatment Plant allocated to and paid by Leander.
J. "Leander Service Area" means the portion of Leander's total service area as depicted
on Exhibit B of the Master Contract.
K. "Master Contract" means that certain Amended and Restated Master Contract for the
Financing, Construction, Ownership and Operation of the Brushy Creek Regional Wastewater
System, among City of Austin, City of Cedar Park, City of Round Rock, and City of Lender
together with any amendments or supplements thereto.
L. "Operating Agreement" means that certain Wastewater Services Operating Agreement
Between Brazos River Authority, City of Round Rock, City of Cedar Park, and City of Austin
M. "Operations and Maintenance Expenses" means all costs to be paid to BRA by the
Cities for operation, maintenance, repair, rehabilitation, replacement and decommissioning of the
Treatment Plant pursuant to and as further defined and determined in the Operating Agreement.
N. "Point of Entry" means the point at which Wastewater from Leander will enter the
System.
O. "Round Rock" means the City of Round Rock, Texas.
P. "Round Rock Operation and Maintenance Expense" means that portion of the
Operation and Maintenance Expenses allocated to and paid by Round Rock for the Treatment
Plant pursuant to the Operating Agreement.
Q. "Round Rock Reserved Capacity" means Round Rock's Reserved Capacity in the
Treatment Plant portion of the System pursuant to the Master Contract, including the portion
necessary to enable Round Rock to serve Leander.
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R. "System" means the Brushy Creek Regional Wastewater System owned and operated
by the Cities.
S. "Treatment Plant" means the treatment plant portion of the System.
T. "Wastewater" means liquid and water -carried waste discharged from sanitary
conveniences of dwellings, business buildings, institutions and the like including garbage which
has been shredded to such degree that all particles will be carried freely under flow conditions
normally prevailing in public sewers, with no particle greater than one-half (1/2) inch in any
dimension and the liquid wastes from industrial processes, and includes any infiltration water that
has migrated from the ground into the System, or inflow water from above the ground entering
the System.
Section 1.02. INTERPRETATION. Terms used in this Agreement with initial letters
capitalized and not otherwise defined in this Agreement have the meanings assigned to them in
the Master Contract and or the Operating Agreement, but to the extent there is any conflict
between the provisions of this Agreement and the Master Contract and/or the Operating
Agreement, this Agreement shall control. Except where the context otherwise requires, words
imparting the singular number shall include the plural number and vice versa. Reference to any
document means that document as amended or supplemented from time to time. Reference to any
party or governmental regulatory agency means that entity and its successors and assigns.
ARTICLE II
DESIGN, ACQUISITION,
CONSTRUCTION, OPERATION AND MAINTENANCE
OF SYSTEM
Section 2.01. DESIGN, ACQUISITION AND CONSTRUCTION RESPONSIBILITIES.
Round Rock will use the Round Rock Reserved Capacity in the Treatment Plant for treating and
disposing of Wastewater delivered by Leander. Round Rock, in cooperation with the other Cities,
will operate, manage, maintain design, acquire, construct, expand, extend, enlarge, improve and
repair the Treatment Plant as provided in the Master Contract and Operating Agreement, and as
required to meet its obligations under this Agreement.
Section 2.02. OPERATION AND MAINTENANCE RESPONSIBILITIES. Round Rock,
in cooperation with the other Cities, will operate and maintain the Treatment Plant as provided in
the Master Contract, the Operating Agreement and this Agreement. In addition, Round Rock will
undertake other management related actions to provide services to Leander.
ARTICLE III
RESERVED CAPACITY AND DISCHARGE OF WASTEWATER
Section 3.01. DISCHARGE QUANTITIES. Leander shall have the right to deliver
Wastewater from the Leander Service Area into the Point of Entry for the System in quantities up
to, but not exceeding the Leander Contractual Flows. It shall be the sole responsibility of Leander
to convey its Wastewater to the designated Point of Entry. Leander shall not deliver Wastewater
to the System from outside the Leander Service Area.
Section 3.02. RATE AND QUANTITY AT POINT OF ENTRY. Leander's Annual Flow
of Wastewater delivered to the System at the Point of Entry by Leander shall be determined by
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"winter averaging", which for purposes of this Agreement, the Master Contract, and the
Operating Agreement shall be calculated in accordance with the methodology developed by K.
Friese & Associates, attached to the Master Contract as Exhibit E. The same methodology shall
be utilized for calculating Leander's Annual Flow as that utilized for calculation the wastewater
flows of the Cities. At no time during the term of this Agreement shall Leander discharge
Wastewater into the System at such Point of Entry at a rate exceeding Leander Contractual Flows.
Section 3.03. DISCHARGE 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, Leander agrees that the quality of the Wastewater discharged must be regulated. Leander
hereby agrees that the quality of the Wastewater to be discharged by Leander shall comply with
the parameters established by the BRA as set forth in Exhibit J attached to the Operating
Agreement. In that regard, Leander specifically agrees that the Wastewater that it shall discharge
to the System shall be in accordance with the parameters set forth in the pretreatment
requirements in the Permits, as defined in the Operating Agreement.
Section 3.05. INDUSTRIAL WASTES. Leander agrees to implement and enforce the
System pretreatment program for the Leander Service Area. Leander also covenants that it will
have in effect and will enforce sewer use regulations in the Leander Service Area in accordance
with EPA and Commission regulations or regulations of other governmental agencies having
lawful jurisdiction to set standards for waste discharges. Furthermore, Leander shall, at any
reasonable time upon request by Round Rock, produce pretreatment program records for review.
Leander also agrees that no new Significant Industrial User shall be allowed to connect to
Leander's sewer system within the Leander Service Area without prior notification being given by
Leander to Round Rock of the intent to connect. Leander will provide Round Rock with a copy of
the draft sewer use permit and permit application at the time such notification is given. All
Significant Industrial Users that are customers of Leander within the Leander Service Area will
also be required to obtain a sewer use permit. Any such Significant Industrial User will be subject
to the same rules and requirements that are established by BCRWWS for Significant Industrial
Users served by the other Cities.
Section 3.06. SYSTEM LIMITATIONS. Round Rock shall be obligated to receive at the
Treatment Plant only Wastewater meeting the quantity limits and quality requirements of this
Article III. Since the capacity required for Leander to discharge Wastewater up to the Leander
Contractual Flows has previously been constructed and for so long as Leander does not discharge
Wastewater into the System in excess of Leander Contractual Flows, Leander shall not be
responsible for, and shall not be allocated any costs or expenses associated with, the discharge by
any other customer (including the Cities) of Wastewater in excess of (i) the amount which the
System is capable of receiving, treating, and disposing, or (ii) a discharge made into the System
by such other customer or the Cities which would cause it to be overloaded or be in violation of
its permits from the State of Texas and/or the United States of America.
Section 3.07. TITLE TO AND RESPONSIBILITY FOR TREATMENT AND
DISPOSAL OF WASTEWATER. During the term of this Agreement, Title to and responsibility
for the reception, transportation, delivery and disposal of all Wastewater discharged hereunder
shall remain with Leander to the Treatment Plant, and upon such Wastewater entering the
Treatment Plant title to and responsibility for the Wastewater shall, pass to Round Rock, and
Round Rock shall be responsible for the proper reception, transportation, treatment and disposal
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of all such Wastewater, meeting the applicable quality standards, received by it at the Treatment
Plant. Responsibility for proper reception, transportation, treatment and disposal of Wastewater
delivered to the Point of Entry which does not meet the applicable quality standards shall remain
with Leander and any expenses incurred by Round Rock in receiving, transporting, treating and
disposing of such non-compliant Wastewater shall be charged directly to Leander by Round
Rock, upon demonstrating that such Wastewater was delivered by Leander.
Section 3.08. UNIT OF MEASUREMENT. The unit of measurement for Wastewater
delivered hereunder shall be one thousand (1,000) gallons, U.S. Standard Liquid Measure.
ARTICLE IV
CHARGES
Section 4.01. ESTABLISHING CHARGES. As soon as reasonably possible during the
first partial Fiscal Year and not less than forty-five (45) days before commencement of each
Fiscal Year thereafter while this Agreement is in effect, Round Rock shall furnish to Leander
copies of its annual estimates of costs and flows for the Treatment Plant, its annual calculation of
Leander 0 & M Charge for the Treatment Plant and the Leander Base Charges projected to be
incurred by Leander in the next ensuing Fiscal Year. Round Rock shall include such information
as may be reasonably necessary for Leander to confirm that Leander Base Charges and Leander
0 & M Charges are calculated in accordance with the terms and conditions of this Agreement.
Section 4.02. DISPUTES.
(a) Leander shall retain such rights as it may possess under applicable law to seek
administrative or judicial review of Round Rock's charges under this Agreement. If Leander at
any time disputes the amount to be paid by it under this Agreement, Leander shall nevertheless
promptly make the payment or payments determined by Round Rock and shall notify Round
Rock in writing of the dispute. If it is subsequently determined by agreement, administrative
agency or court decision, that such disputed payments made by Leander should be changed,
Round Rock shall promptly revise the charges in such manner that Leander will pay amounts
which permit Round Rock to receive the entire amount of Leander Base Charges and Leander 0
& M Charges permitted hereunder as the same may be modified by final effective order of an
administrative agency or court of appropriate jurisdiction, provided, however, nothing herein
shall ever be construed to prevent Round Rock from recovering from Leander the amount
required to meet Leander Base Charges and Leander 0 & M Charges hereunder for and with
respect to the Treatment Plant. If Leander Base Charges or Leander 0 & M Charges for the
Treatment Plant are redetermined as herein provided, Round Rock will promptly furnish Leander
with an updated schedule of monthly payments reflecting such redetermination.
(b) Prior to seeking judicial or administrative review, Leander shall submit any
protest or dispute relating to the budget or Leander Base Charges or Leander 0 & M Charges to
mediation in accordance with Article VII below.
Section 4.03. CHANGES FROM EMERGENCIES AND LEGAL ACTION. Round
Rock may adopt amendments to Leander Base Charges or Leander 0 & M Charges by following
a process similar to that provided above for the establishment of such matters initially if, during a
Fiscal Year, Leander Base Charges or Leander 0 & M Charges are changed due to:
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(i)
unanticipated emergency capital expenses or Operation and Maintenance
Expenses are experienced that are properly allocable to Leander under
this Agreement; or
(ii) an adjustment is necessitated by regulatory requirement.
Section 4.04. LEANDER CHARGES; UNCONDITIONAL PAYMENT OBLIGATION.
(a) General. On or before the fifteenth day of each month, Leander shall pay its Leander
Base Charge and its Leander 0 & M Charge. During the term of this Agreement, Leander Base
Charge for Leander to be paid each month shall be in the amount of $14,059.00, which Leander
and Round Rock believe is a reasonable basis upon which to allocate said costs.
(b) It is hereby agreed that upon the effective date of this Agreement, Leander shall be
unconditionally obligated to pay Leander Base Charge and Leander 0 & M Charge regardless of
whether or not Leander actually discharges Wastewater hereunder, whether due to Force Majeure
or otherwise. Leander agrees that its obligation to pay Leander Base Charge and Leander 0 & M
Charge shall be absolute and unconditional, irrespective of any rights of set-off, diminution,
abatement, recoupment or counterclaim Leander might otherwise have against Round Rock or
any other person, and Leander covenants not to seek and hereby waives, to the extent permitted
by applicable law, the benefits of any rights which it may have at any time to any stay or
extension of time for performance or to terminate, cancel or limit its liability to pay Leander Base
Charge. and Leander 0 & M Charge. Such additional agreement shall in all respects be consistent
with the requirements of this Agreement regarding the payment of Leander Base Charge by
Leander. This provision shall not be construed to prevent Leander from appealing the amount of
Leander Base Charge in accordance with the dispute provisions of this Agreement.
(c) The preceding paragraph shall not be construed to release Round Rock from the
performance of any of its undertakings contained in this Agreement or, except to the extent
provided in this section, prevent or restrict Leander from asserting any rights which it may have
against Round Rock or any other person under this Agreement or under any provision of law or
prevent or restrict Leander, at its own cost and expense, from prosecuting or defending any action
or proceeding against or by third parties or taking any other action to secure or protect its rights
under this Agreement.
(d) In the event additional capital costs are incurred due to the repair or rehabilitation of
the Treatment Plant on behalf of Leander, the City of Round Rock reserves the right to issue
additional debt for such improvements made on behalf of Leander and to increase the $14,059 per
month payment accordingly. The Leander Base Charge will be amended accordingly. Except in
the event of emergencies, Round Rock agrees to provide not less than 90 days prior written notice
of any such proposed repair or rehabilitation, along with information regarding the necessity
thereof, the projected costs thereof, and the allocation of costs associated therewith to Leander.
Section 4.05. LEANDER 0 & M CHARGES
(a) During the term of this Agreement, Leander each month shall be required to pay
Leander 0 & M Charges designed to recover that portion of the Round Rock Flow Charge herein
allocated to Leander.
(b) Adjustment for Actual. In the event that the Round Rock Flow Charges are adjusted
in accordance with the Master Contract, Round Rock shall report to Leander the difference, if
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any, between the amounts collected from Leander and the actual Round Rock Flow Charges. The
difference, if any, shall be applied as an adjustment in calculating Leander 0 & M Charge
pursuant to this section for the Fiscal Year immediately following the Fiscal Year in which the
actual Round Rock Flow Charges are known. The difference, if any, shall also be adjusted at the
termination of this Agreement.
Section 4.06. HOW, WHEN AND WHERE PAYMENTS ARE TO BE MADE. Delivery
to Leander of the final budgets for a Fiscal Year, together with the schedule of resulting Leander
Base Charges and Leander 0 & M Charges, shall constitute the invoice for same for the entire
Fiscal Year. Payment of all Leander Base Charges and Leander 0 & M Charges required to be
paid by Leander under the provisions of this Agreement shall be made to Round Rock. All
charges payable for any calendar month shall be due and payable in Williamson County, Texas,
on or before the first day of such month. Past due payments shall bear interest from the date due
until paid at the rate of ten percent (10%) per annum.
Section 4.07. DEFAULT.
(a) Monetary Defaults by Leander. In the event Leander defaults in the payment of
Leander Base Charge or Leander 0 & M Charge required hereunder, Round Rock shall
immediately give notice of such default to Leander; provided, however, that nothing in this
section shall prevent Leander from paying under protest any amount alleged as owed to Round
Rock or prevent Round Rock from accepting any payment even if less than the amount alleged by
Round Rock as owed by Leander. Payment or receipt of any such disputed amount shall not be
construed as a waiver of any right of the party making or receiving such disputed amount to
contest such matter and to demand payment or receipt of a different amount. Thereafter, Leander
shall take all appropriate steps to correct such default and shall correct such default within ten
(10) days after receipt of such notice. Any past due amount shall be paid, together with interest at
the rate of ten percent (10%) per annum.
(b) Other Defaults by Leander or Round Rock. In the event that Leander or Round Rock
defaults in the performance of any of their respective obligations under this Agreement, other
than the obligation to make payments of Leander Base Charge or Leander 0 & M Charge, the
non -defaulting party, after giving reasonable notice of the default and opportunity to cure same,
may exercise any remedy at law or in equity or as provided below in Article VII.
ARTICLE V
TERMINATION
Section 5.01. TERMINATION OF THIS AGREEMENT. As more particularly described
below, the parties hereto agree that this Agreement shall be terminated upon (i) the completion of
construction of an expansion to the Treatment Plant with capacity paid for and reserved by
Leander, (ii) notice in accordance with Section 5.03 below from Round Rock to Leander that
Round Rock no longer has surplus treatment capacity in the Treatment Plant, or (iii) on December
31, 2020, whichever first occurs.
Section 5.02. EXPANSION OF TREATMENT CAPACITY. It is anticipated that in less
than ten (10) years from the effective date hereof that one or more of the Cities and Leander will
seek to expand the Treatment Plant to increase the reserve treatment capacity for one or more of
the Cities and to provide Leander with its own reserved treatment capacity. This Agreement shall
terminate upon completion of the treatment plant expansion.
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Section 5.03. ROUND ROCK'S NEED FOR CAPACITY. Leander acknowledges that
the treatment capacity that it is utilizing pursuant to the terms of this Agreement is temporarily
surplus Round Rock Reserved Capacity that Round Rock will need sometime in the future.
Therefore, Round Rock has the right to terminate this Agreement at any time by giving Leander
written notice thirty-six (36) months prior to the date that Round Rock wished to terminate this
Agreement and utilize its reserved capacity. The written notice must be from the Round Rock
City Council and state that the Council finds that there is an urgent public need for the capacity
and for the termination of this Agreement.
Section 5.04. Term. In the event that this Agreement is not terminated because of an
expansion or because of Round Rock's need for capacity, as set out above, then this Agreement
shall terminate on December 31, 2020.
ARTICLE VI
GENERAL PROVISIONS
Section 6.01. PAYMENTS TO CONSTITUTE OPERATING EXPENSES OF
LEANDER. Leander represents and covenants that the services to be obtained pursuant to this
Agreement are essential and necessary to the operation by Leander of its own wastewater
facilities and the provision of sanitary sewer services to its constituents, and that all payments to
be made hereunder by it will constitute essential and necessary operating expenses of Leander's
waterworks and sanitary sewer systems, and such expenses constitute essential and necessary
operating expenses as referred to in all resolutions and documents authorizing the issuance of all
bonds of Leander which are payable from revenues of Leander's waterworks and sanitary sewer
systems. The parties acknowledge that Round Rock intends, in cooperation with the other Cities,
to own and operate the System as capital improvements on behalf of Leander within the meaning
of Section 395.002(1), Texas Local Government Code. The parties understand and agree that the
decision as to whether the capital improvements constructed or acquired by Round Rock on
behalf of Leander are used to serve new development (within the meaning of Section 395.001(6),
Texas Local Government Code) and the decision as to whether to impose any impact fees (within
the meaning of Section 395.001(4), Texas Local Government Code) is exclusively that of
Leander. Round Rock agrees, upon receiving a written request from Leander, to provide
information and other assistance regarding Round Rock's calculation of Leander Base Charges
and Leander 0 & M Charges to assist Leander in its efforts to implement or defend any capital
recovery fee or impact fee of Leander related to the System.
Section 6.02. LEANDER'S RATES, FEES AND CHARGES. Round Rock acknowledges
that Leander has the right under applicable law to assess, charge and collect such Leander impact
fees, capital recovery fees, connection fees, meter fees, fees for service and other service fees,
rates, taxes and other charges as it will deem appropriate. Round Rock will not construe this
Agreement to require (except as provided otherwise in this Section), limit or restrict the
governmental power of Leander to implement the same. Leander will be solely responsible for
the proper exercise of its governmental power to assess and collect such fees and charges and for
ensuring that all fees, taxes, rates and charges Leander elects to charge are in compliance with
applicable law. Leander agrees to establish and collect such rates and charges for its waterworks
and sanitary sewer services to be supplied by its system as will make possible the prompt
payment of all expenses of operating and maintaining its system including the payments
committed hereunder, and the prompt payment of the principal of and interest on its obligations,
if any, payable from the revenues of its waterworks and sanitary sewer systems.
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Section 6.03. FORCE MAJEURE. In case by reason of "Force Majeure" any party hereto
shall be rendered unable wholly or in part to carry out its obligations under this Agreement, then
if such party shall give notice and full particulars of such "Force Majeure" in writing to the other
parties within a reasonable time after occurrence of the event or cause relied on, the obligation of
the party giving such notice, so far as it is affected by such Force Majeure, with the exception of
the obligation to pay amounts owed hereunder, shall be suspended during the continuance of the
inability then claimed, but for no longer period, and any such party shall endeavor to remove or
overcome such inability with all reasonable dispatch. The term "Force Majeure" as employed
herein shall mean acts of God, strikes, lockouts or other industrial disturbances, acts of public
enemy, orders of any kind of the United States or the State of Texas or any civil or military
authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes,
storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances,
explosions, breakage or accidents to machinery, pipelines or canals, partial or entire failure of
water supply and inability on the part of Leander to provide water necessary for operation of its
water and wastewater system hereunder or of Round Rock to receive Wastewater on account of
any other causes not reasonably within the control of the party claiming such inability. It is
understood and agreed that the settlement of strikes and lockouts shall be entirely within the
discretion of the party having the difficulty and that the above requirement that any Force
Majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes
and lockouts by acceding to the demands of the opposing party or parties when such settlement is
unfavorable in the judgment of the party having the difficulty.
Section 6.04. GOVERNMENTAL REGULATION. This Agreement shall be subject to
all valid rules, regulations and laws applicable hereto passed or promulgated by the United States
of America, the State of Texas or any governmental body or agency having lawful jurisdiction or
any authorized representative or agency of any of them. In each instance herein where reference
is made to a federal or state regulation, it is the intention of the parties that at any given time the
then current edition of any such federal or State regulation shall apply. Round Rock and Leander
agree that their obligations under this Agreement shall include compliance with the requirements
made under said laws, and any rules and regulations issued pursuant thereto. New standards shall
be adopted by Leander, and Round Rock which are in compliance with applicable State and
federal laws and any valid rules and regulations issued pursuant thereto.
Section 6.05. LEANDER COOPERATION TO ASSURE REGULATORY
COMPLIANCE. Since Round Rock and the other Cities must comply with all federal, state and
local requirements to obtain permits, grants and assistance for system construction, studies, etc.,
Leander will cooperate with the Cities in good faith at all times to assure compliance with any
such governmental requirements where noncompliance or non-cooperation by Leander may
subject Round Rock to penalties, loss of grants or other funds, or other adverse regulatory action.
In making the determinations called for herein, Round Rock covenants that such determinations
will be made only after detailed studies of statistical data available as to the need and feasibility
have been made and after consulting with engineers and financial advisors. Leander will be kept
advised at all times of planning and implementing Required Improvements. In that regard,
Leander agrees to adopt and enforce, and to provide in its wholesale contracts with its water
customers in the future that they shall adopt and enforce, an appropriate water conservation
and/or drought management plan as required by the Texas Water Development Board.
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Section 6.06. CONTRACTS WITH OTHERS IN RELATION TO SYSTEM.
(a) Leander shall have the right to enter into contracts with other persons natural or
corporate, private or public within the Leander Service Area, to receive Wastewater from such
persons. Leander covenants that it will provide Round Rock with copies of all such written
contracts and will, if requested by Round Rock, furnish Round Rock with a list of all customers
within the Leander Service Area other than retail and residential customers. Initially, within thirty
(30) days after execution of this Agreement, and thereafter for each calendar year during the
tenure hereof, Leander will send to Round Rock by January 15 of each year an annual report
containing the following data about Leander's customers that the System ultimately serves:
(1) actual number of connections as of the end of the calendar year;
(2) number of new wastewater connections made in the previous calendar year;
(3) classification, by number and percentage, of accounts according to the following:
(i) residential;
(ii) multi -family;
(iii) business/commercial; and
(iv) other; and
(4) if business or commercial connections, a copy of any Leander industrial waste
discharge permit issued to such premises.
(b) Round Rock shall have the right to enter into or amend agreements with other
persons, including, without limitation, entering into agreements with other customers or
amendments of the Master Contract, so long as such agreements or amendments do not prevent
Round Rock from meeting its obligations to provide service to Leander from the Treatment Plant
in accordance with this Agreement and do not result in alienation of Reserved Capacity necessary
to meet Leander's needs. Under no circumstances may Round Rock enter into such agreements
that would require the use of Wastewater facilities owned or operated by Leander without
Leander's prior written consent.
Section 6.07. LEANDER SERVICE AREA. Leander agrees that it will not provide or
enter into an agreement to provide Wastewater service directly or indirectly outside of the
Leander Service Area unless Round Rock consents. For purposes of this Agreement, Leander's
Service Area shall mean the area as shown in Exhibit B attached to the Master Contract.
Section 6.08. NO ADDITIONAL WAIVER IMPLIED. No waiver or waivers of any
breach or default (or any breaches or defaults) by any party hereto of any term, covenant,
conditions, or liability hereunder, or of performance by the other parties of any duty or obligation
hereunder, shall be deemed or construed to be a waiver of subsequent breaches or defaults of any
kind, under any circumstances.
Section 6.09. ADDRESSES AND NOTICE. Unless otherwise provided, in this
Agreement, any notice, communication, request, reply, or advice (herein severally and
collectively, for convenience, called "Notice") herein provided or permitted to be given, made or
accepted by any party to the others must be in writing and may be given or be served by
depositing the same in the United States mail postpaid and registered or certified and addressed to
the party to be notified, with return receipt requested, or by delivering the same to an officer of
such party, or by telecopier, when appropriate, addressed to the party to be notified. Notice
deposited in the mail in the manner hereinabove described shall be conclusively deemed to be
10
effective, unless otherwise stated in this Agreement, from and after the expiration of four (4) days
after it is so deposited. Notice given in any other manner shall be effective only if and when
received by the party to be notified. For the purpose of notice, the addresses of the parties shall,
until changed as hereinafter provided, be as follows:
If to Round Rock, to:
City Manager
City of Round Rock
221 E. Main St.
Round Rock, Texas 78664
with a copy to:
Stephan L. Sheets
Sheets & Crossfield
309 E. Main St.
Round Rock, Texas 78664
If to Leander, to:
City Manager
City of Leander
200 West Willis Street
Leander, Texas 78641-1781
Fax No. (512) 528-2831
with a copy to:
Knight & Partners
Attorneys at Law
223 West Anderson Lane #A-105
Austin, Texas 78752
Fax (512) 323-5773
The parties shall have the right from time to time and at any time to change their
respective addresses and each shall have the right to specify as its address any other address by at
least fifteen (15) days written notice to the other parties.
Section 6.10. MODIFICATION. This Agreement may not be changed or modified
without the mutual consent of the governing bodies of each of the parties hereto, which consent
shall not be unreasonably withheld or delayed.
Section 6.11. ASSIGNABILITY; SUCCESSORS IN INTEREST. This Agreement shall
not be assignable by any party without the prior written consent of the other party, which consent
shall not be unreasonably withheld or delayed.
Section 6.12. SEVERABILITY. The provisions of this Agreement are severable, and if
any provision or part of this Agreement or the application thereof to any person or circumstance
shall ever be held by any of competent jurisdiction to be invalid or unconstitutional for any
reason, the remainder of this Agreement and the application of such provision or part of this
Agreement to other persons or circumstances shall not be affected thereby.
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Section 6.13. MERGER. Other than the other contracts mentioned herein, this Agreement
constitutes the entire agreement between the parties relative to the subject matter thereof. Except
as noted in the previous sentence, there have been and are no agreements, covenants,
representations or warranties between the parties other than those expressly stated herein or
expressly provided for herein.
Section 6.14. VENUE. Venue for any action arising hereunder will be in Williamson
County, Texas.
Section 6.15. NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement,
express or implied, is intended to confer upon any person or entity, other than the parties hereto,
any rights, benefits, or remedies under or by reason of this Agreement.
ARTICLE VII
NEGOTIATION AND MEDIATION OF DISPUTES
Section 7.01. AGREEMENT REGARDING REMEDIES. The parties agree that their
respective obligations under this Agreement are unique. The failure by either party to perform its
obligations under this Agreement would not be capable of being appropriately remedied by award
of damages to the other party to this Agreement and in any event, such damages would be
difficult, if not impossible, to determine because of the unique nature of the parties' obligations to
each other hereunder. Further, the parties agree that the remedy of termination of this Agreement
by either party is inappropriate and not in the public interest. Therefore, the parties agree that they
shall be entitled, and limited, to the remedies of specific performance, mandamus and injunction
in the event of any breach of any obligation by any party under this Agreement. The parties
hereby waive any requirement that they be required to provide any bond or other surety in order
to obtain any of the agreed upon remedies. The parties also agree that attorney's fees and court
costs incurred by any party prevailing in any legal action to enforce this Agreement or collect or
defend any amounts owed or claimed as owed shall be paid by the non -prevailing party.
Section 7.02. AGREEMENT TO NEGOTIATE FIRST TO RESOLVE ISSUES. The
parties agree to attempt first to resolve disputes concerning this Agreement amicably by promptly
entering into negotiations in good faith. The parties agree that they will not refer any dispute to
another dispute resolution procedure including mediation or litigation until they have first made
reasonable and good faith efforts to settle their differences by joint negotiations conducted in a
timely manner.
Section 7.03. ELECTION OF REMEDIES. if any dispute cannot be resolved through
good faith negotiation, then the parties may resolve the dispute by mediation as provided herein.
An election to mediate any dispute by either party shall be binding, and shall preclude the same
dispute from being resolved by judicial or administrative proceeding (except to the extent
required to enforce the mediator's decision).
Section 7.04. PRESENTATION OF WRITTEN CLAIM REGARDING DISPUTES
NOT RESOLVED BY NEGOTIATION. In the event that a dispute is not resolved as a result of
such negotiations, either party may at any time give formal written notice to the other of a
"claim." A "claim" as used herein means a demand or assertion by one of the parties (the
"claimant") seeking, as a matter of right, adjustment or interpretation of contract terms, the
payment of money, an extension of time for performance or other relief with respect to the terms
of this Agreement or any other dispute or matter in question among the parties arising out of or
related to this Agreement. By way of example and without limitation, a claim may relate to the
12
calculation of charges, the allocation of costs, the reasonableness of costs, compliance with this
Agreement, and calculation or allocation of flows to the Treatment Plant. Such notice shall be in
writing, and shall specify whether the forum for resolution of the dispute shall be judicial,
administrative, or mediation. If a party elects to resolve a claim by mediation, the dispute
resolution procedure provided for below shall immediately enter into effect.
Section 7.05. PERFORMANCE DURING MEDIATION. The claimant shall continue
with performance under this Agreement pending mediation of the dispute.
Section 7.06. APPOINTMENT OF MEDIATOR. Promptly following the making of a
written claim by any party, the parties will consult with one another to agree on the appointment
of a mediator acceptable to all parties. The mediator shall have experience in matters of the kind
giving rise to the claim. If within five (5) business days the parties are unable to agree on the
appointment of a mediator, then any party may request the appointment of a mediator by the
Center for Public Policy Dispute Resolution at the University of Texas at Austin School of Law.
The parties shall endeavor to secure such appointment from the Center for Public Policy Dispute
Resolution within ten (10) business days after the request for same is made. The parties agree to
utilize the mediator appointed by the Center unless they ultimately reach agreement on an
alternative selection and give notice to the Center that another selection has been made by
agreement.
Section 7.07. RULES FOR MEDIATION. The parties agree to the following stipulations
concerning the conduct of the mediation:
interest.
(a) The mediator shall be impartial among the parties and shall have no conflict of
(b) The mediator shall not have any past, present or anticipated financial interest in
the Agreement or the System except for the payment for services as mediator nor shall the
mediator have been previously employed or acted as a consultant, attorney, employee, engineer,
architect, contractor or subcontractor of any party nor have any present or anticipated future
engagement of kind described. Before the engagement of the mediator is finalized, the mediator
shall provide to the parties a disclosure statement containing a resume of experience, a
description of past, present or anticipated future relationships to the System and the parties, their
engineers, contractors, subcontractors, attorneys, architects, or consultants.
(c) The mediation shall be held at a time and location mutually agreeable to the
parties and the mediator provided, however, that the mediation shall commence no later than
fifteen (15) business days following the confirmation of appointment.
(d) At least five (5) business days prior to the mediation, the claimant shall submit to
the parties and the mediator a statement of the claimant's position, the issues that need to be
resolved and a summary of the arguments supporting the claimant's position. At least two (2)
business days prior to the mediation, the responding parties shall submit their written response to
the claimant's statement and provide a summary of their arguments in response.
(e) If the parties agree that independent expert or technical advice would be helpful
in facilitating a negotiated resolution of the dispute, the mediator may make arrangements to
obtain such advice, and may, with the agreement of the parties, make arrangements for an
independent expert to render a non-binding advisory opinion with respect to any technical matters
13
in dispute after hearing the contentions of the parties with respect thereto. The expenses of
obtaining such independent advice or advisory opinion shall be borne equally by the parties.
(f)
No party shall engage in any private interview, discussion or argument with the
mediator concerning the subject matter of the mediation.
(g) The fees of the mediator and any other costs of administering the mediation shall
be borne equally by the parties unless otherwise agreed among them in writing.
(h) The mediator may promote settlement in any manner the mediator believes
appropriate at one or several mediation sessions as agreed to by the parties. The mediation shall
continue only so long as desired by the parties and with the consent of all of them.
(i) Mediation sessions shall be private unless otherwise required by law. Persons
other than the representatives of the parties may attend mediation sessions only with the
permission of all parties and the consent of the mediator.
(j) All communications made in the course of the mediation process including any
advice or advisory opinions rendered shall be confidential in accordance with V.T.C.A. Civil
Practice and Remedies Code, Section 154.073.
(k) The mediator's decision shall be final and binding upon the parties.
Section 7.08. EXCEPTION. Notwithstanding the foregoing provisions of Sections 7.02-
7.07, the parties agree that those provisions shall not be applicable in emergency situations.
Section 7.09 WAIVER OF SOVEREIGN IMMUNITY. The parties acknowledge and
agree that this Agreement is a written contract stating the essential terms of an agreement for
providing goods and services to Leander, and that each party hereto intends to waive its sovereign
immunity to suit for the sole purpose of adjudicating a claim for breach of this Agreement,
subject to the terms and conditions of Subchapter I of Chapter 271 of the Texas Local
Government Code or any other applicable statute.
Section 7.10 ATTORNEYS' FEES. Pursuant to §271.159 of the Texas Local
Government Code, the prevailing party in a claim arising out of or to enforce this Agreement
shall be entitled to recover from the other party its reasonable and necessary attorneys' fees. This
provision specifically applies to but is not limited to judgments awarding damages, court orders
compelling performance, and mediator decisions pursuant to this Article VII.
14
CITY OF ROUND ROCK, TEXAS
Alan McGraw, Mayor
Attest:
Sara White, City Secretary
15
CITY OF LEANDER
John Cowman, Mayor
ATTEST:
Debbie Haile, City Secretary
16
ROUND ROCK, TEXAS
PURPOSE. PASSION. PROSPERITY:
Agenda Item No. 11C3.
City Council Agenda Summary Sheet
Consider a resolution authorizing the Mayor to execute a Wastewater Service Agreement
Agenda Caption: with the City of Leander.
Meeting Date: May 13, 2010
Department: Water/Wastewater Utilities
Staff Person making presentation: Michael Thane
Utilities Director
Item Summary:
The City of Leander is negotiating an agreement with the Cities of Round Rock, Cedar Park, and Austin to purchase
surplus capacity in the collection system portion of the Brushy Creek Regional Wastewater System (BCRWWS). In
addition, Round Rock has surplus capacity in the BCRWWS wastewater treatment system that it is willing to make
available to Leander on a temporary basis until such capacity is needed by Round Rock or until the next expansion of
the wastewater treatment system is constructed.
This agreement will enable Leander to purchase from Round Rock the right to utilize Round Rock's surplus
wastewater treatment capacity. Leander's base charge for this treatment capacity will be $14,059 per month, which
amounts to Round Rock's debt allocable to the Treatment Plant capacity necessary to serve Leander. With this base
charge, Leander will be allocated a contractual flow of up to 1.0 million gallons per day of daily peak flow of
wastewater that can be delivered by Leander into the System at their Point of Entry. Leander will also be
responsible for their portion of the Operation and Maintenance expense that is determined by their percentage of
the total system annual flow to the BCRWWS Treatment Plant facilities.
Leander shall lease available wastewater treatment capacity in the existing Treatment facilities from Round Rock
until such time as (i) the completion of construction of an expansion to the Treatment Plant with capacity paid for
and reserved by Leander, (ii) notice from Round Rock to Leander that Round Rock no longer has surplus treatment
capacity in the Treatment Plant, or (iii) on December 31, 2020, whichever comes first.
Strategic Plan Relevance:
Goal 28.0 "Protect public health and protect the environment through proper waste disposal."
Cost: N/A
Source of Funds: N/A
Date of Public Hearing (if required): N/A
Recommended Action: Staff recommends approval
EXECUTED
DOCUMENT
FOLLOWS
WASTEWATER SERVICE AGREEMENT
BETWEEN THE
CITY OF ROUND ROCK
AND
THE CITY OF LEANDER
RECITALS
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; and
Whereas, on December 8, 2009, the cities of Austin, Cedar Park and Round Rock entered
into that one certain Master Contract for the Financing, Construction, Ownership, and Operation
of the Brushy Creek Regional Wastewater System, (the "Master Contract"); and
Whereas, on 1 010 . the cities of Austin, Cedar Park and Round Rock and the
Brazos River Authority (" BRA") entered into that one certain Wastewater Services Operating
Agreement Between Brazos River Authority, City of Round Rock, City of Cedar Park, and City
of Austin, (the "Operating Agreement"); and
Whereas, the BCRWWS is made up of two major components, namely the wastewater
collection system and the wastewater treatment system; and
Whereas, the city of Leander desires to enter into appropriate written agreements with the
cities of Austin, Cedar Park and Round Rock to allow Leander to deliver wastewater to the
BCRWWS to treat a portion of the wastewater generated by Leander; and
Whereas, Leander is negotiating one or more agreements with Austin, Cedar Park, and
Round Rock to purchase a portion of the surplus capacity in the BCRWWS wastewater collection
system; and
Whereas, Round Rock has surplus capacity in the BCRWWS wastewater treatment
system that it is willing to make available to Leander on a temporary basis until this Agreement is
terminated in accordance with the terms hereof; and
Whereas, Leander desires to purchase from Round Rock the right to utilize Round Rock's
surplus wastewater treatment capacity; Now Therefore
This Wastewater Service Agreement ("Agreement") is entered into by and between the
City of Round Rock ("Round Rock") and the City of Leander ("Leander") to be effective as of
the 13th day of May, 2010.
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITION OF TERMS. Certain of the capitalized terms and expressions
used in this Agreement, unless the context clearly shows otherwise, shall have the following
meanings:
A. "Agreement" means this agreement.
Wastewater Service Agreement- FINAL- 5-5-10 (00191574) (2).DOC
2:— tv_ QJ' 13 - 1G2
B. "Austin" means the City of Austin, Texas
C. "Cedar Park" means the City of Cedar Park, Texas
D. "Cities" mean the cities of Austin, Cedar Park, and Round Rock.
E. "Leander" means the City of Leander.
F. "Leander's Annual Flow" means the amount of wastewater generated in Leander's
Service Area and delivered to the System on an annual basis as calculated in accordance with
Section 8.2 of the Master Contract and with the methodology developed by K. Friese &
Associates, attached to the Master Contract as Exhibit A.
G. "Leander Base Charges" means the cost allocated to Leander of the portion of Round
Rock's debt allocable to the Treatment Plant and necessary to serve Leander, which cost is hereby
agreed to be $14,059 per month.
H. "Leander Contractual Flows" means up to, but no more than, 1.0 MGD of daily peak
flow of Wastewater to be delivered by Leander into the Point of Entry for the System.
I. "Leander 0 & M Charges" means that portion of the Round Rock Operation and
Maintenance Expense for the Treatment Plant allocated to and paid by Leander.
J. "Leander Service Area" means the portion of Leander's total service area as depicted
on Exhibit B of the Master Contract.
K. "Master Contract" means that certain Amended and Restated Master Contract for the
Financing, Construction, Ownership and Operation of the Brushy Creek Regional Wastewater
System, among City of Austin, City of Cedar Park, City of Round Rock, and City of Lender
together with any amendments or supplements thereto.
L. "Operating Agreement" means that certain Wastewater Services Operating Agreement
Between Brazos River Authority, City of Round Rock, City of Cedar Park, and City of Austin
M. "Operations and Maintenance Expenses" means all costs to be paid to BRA by the
Cities for operation, maintenance, repair, rehabilitation, replacement and decommissioning of the
Treatment Plant pursuant to and as further defined and determined in the Operating Agreement.
N. "Point of Entry" means the point at which Wastewater from Leander will enter the
System.
O. "Round Rock" means the City of Round Rock, Texas.
P. "Round Rock Operation and Maintenance Expense" means that portion of the
Operation and Maintenance Expenses allocated to and paid by Round Rock for the Treatment
Plant pursuant to the Operating Agreement.
Q. "Round Rock Reserved Capacity" means Round Rock's Reserved Capacity in the
Treatment Plant portion of the System pursuant to the Master Contract, including the portion
necessary to enable Round Rock to serve Leander.
2
R. "System" means the Brushy Creek Regional Wastewater System owned and operated
by the Cities.
S. "Treatment Plant" means the treatment plant portion of the System.
T. "Wastewater" means liquid and water -carried waste discharged from sanitary
conveniences of dwellings, business buildings, institutions and the like including garbage which
has been shredded to such degree that all particles will be carried freely under flow conditions
normally prevailing in public sewers, with no particle greater than one-half (1/2) inch in any
dimension and the liquid wastes from industrial processes, and includes any infiltration water that
has migrated from the ground into the System, or inflow water from above the ground entering
the System.
Section 1.02. INTERPRETATION. Terms used in this Agreement with initial letters
capitalized and not otherwise defined in this Agreement have the meanings assigned to them in
the Master Contract and or the Operating Agreement, but to the extent there is any conflict
between the provisions of this Agreement and the Master Contract and/or the Operating
Agreement, this Agreement shall control. Except where the context otherwise requires, words
imparting the singular number shall include the plural number and vice versa. Reference to any
document means that document as amended or supplemented from time to time. Reference to any
party or governmental regulatory agency means that entity and its successors and assigns.
ARTICLE II
DESIGN, ACQUISITION,
CONSTRUCTION, OPERATION AND MAINTENANCE
OF SYSTEM
Section 2.01. DESIGN, ACQUISITION AND CONSTRUCTION RESPONSIBILITIES.
Round Rock will use the Round Rock Reserved Capacity in the Treatment Plant for treating and
disposing of Wastewater delivered by Leander. Round Rock, in cooperation with the other Cities,
will operate, manage, maintain design, acquire, construct, expand, extend, enlarge, improve and
repair the Treatment Plant as provided in the Master Contract and Operating Agreement, and as
required to meet its obligations under this Agreement.
Section 2.02. OPERATION AND MAINTENANCE RESPONSIBILITIES. Round Rock,
in cooperation with the other Cities, will operate and maintain the Treatment Plant as provided in
the Master Contract, the Operating Agreement and this Agreement. In addition, Round Rock will
undertake other management related actions to provide services to Leander.
ARTICLE III
RESERVED CAPACITY AND DISCHARGE OF WASTEWATER
Section 3.01. DISCHARGE QUANTITIES. Leander shall have the right to deliver
Wastewater from the Leander Service Area into the Point of Entry for the System in quantities up
to, but not exceeding the Leander Contractual Flows. It shall be the sole responsibility of Leander
to convey its Wastewater to the designated Point of Entry. Leander shall not deliver Wastewater
to the System from outside the Leander Service Area.
Section 3.02. RATE AND QUANTITY AT POINT OF ENTRY. Leander's Annual Flow
of Wastewater delivered to the System at the Point of Entry by Leander shall be determined by
3
"winter averaging", which for purposes of this Agreement, the Master Contract, and the
Operating Agreement shall be calculated in accordance with the methodology developed by K.
Friese & Associates, attached to the Master Contract as Exhibit E. The same methodology shall
be utilized for calculating Leander's Annual Flow as that utilized for calculation the wastewater
flows of the Cities. At no time during the term of this Agreement shall Leander discharge
Wastewater into the System at such Point of Entry at a rate exceeding Leander Contractual Flows.
Section 3.03. DISCHARGE 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, Leander agrees that the quality of the Wastewater discharged must be regulated. Leander
hereby agrees that the quality of the Wastewater to be discharged by Leander shall comply with
the parameters established by the BRA as set forth in Exhibit J attached to the Operating
Agreement. In that regard, Leander specifically agrees that the Wastewater that it shall discharge
to the System shall be in accordance with the parameters set forth in the pretreatment
requirements in the Permits, as defined in the Operating Agreement.
Section 3.05. INDUSTRIAL WASTES. Leander agrees to implement and enforce the
System pretreatment program for the Leander Service Area. Leander also covenants that it will
have in effect and will enforce sewer use regulations in the Leander Service Area in accordance
with EPA and Commission regulations or regulations of other governmental agencies having
lawful jurisdiction to set standards for waste discharges. Furthermore, Leander shall, at any
reasonable time upon request by Round Rock, produce pretreatment program records for review.
Leander also agrees that no new Significant Industrial User shall be allowed to connect to
Leander's sewer system within the Leander Service Area without prior notification being given by
Leander to Round Rock of the intent to connect. Leander will provide Round Rock with a copy of
the draft sewer use permit and permit application at the time such notification is given. All
Significant Industrial Users that are customers of Leander within the Leander Service Area will
also be required to obtain a sewer use permit. Any such Significant Industrial User will be subject
to the same rules and requirements that are established by BCRWWS for Significant Industrial
Users served by the other Cities.
Section 3.06. SYSTEM LIMITATIONS. Round Rock shall be obligated to receive at the
Treatment Plant only Wastewater meeting the quantity limits and quality requirements of this
Article III. Since the capacity required for Leander to discharge Wastewater up to the Leander
Contractual Flows has previously been constructed and for so long as Leander does not discharge
Wastewater into the System in excess of Leander Contractual Flows, Leander shall not be
responsible for, and shall not be allocated any costs or expenses associated with, the discharge by
any other customer (including the Cities) of Wastewater in excess of (i) the amount which the
System is capable of receiving, treating, and disposing, or (ii) a discharge made into the System
by such other customer or the Cities which would cause it to be overloaded or be in violation of
its permits from the State of Texas and/or the United States of America.
Section 3.07. TITLE TO AND RESPONSIBILITY FOR TREATMENT AND
DISPOSAL OF WASTEWATER. During the term of this Agreement, Title to and responsibility
for the reception, transportation, delivery and disposal of all Wastewater discharged hereunder
shall remain with Leander to the Treatment Plant, and upon such Wastewater entering the
Treatment Plant title to and responsibility for the Wastewater shall, pass to Round Rock, and
Round Rock shall be responsible for the proper reception, transportation, treatment and disposal
4
of all such Wastewater, meeting the applicable quality standards, received by it at the Treatment
Plant. Responsibility for proper reception, transportation, treatment and disposal of Wastewater
delivered to the Point of Entry which does not meet the applicable quality standards shall remain
with Leander and any expenses incurred by Round Rock in receiving, transporting, treating and
disposing of such non-compliant Wastewater shall be charged directly to Leander by Round
Rock, upon demonstrating that such Wastewater was delivered by Leander.
Section 3.08. UNIT OF MEASUREMENT. The unit of measurement for Wastewater
delivered hereunder shall be one thousand (1,000) gallons, U.S. Standard Liquid Measure.
ARTICLE IV
CHARGES
Section 4.01. ESTABLISHING CHARGES. As soon as reasonably possible during the
first partial Fiscal Year and not less than forty-five (45) days before commencement of each
Fiscal Year thereafter while this Agreement is in effect, Round Rock shall furnish to Leander
copies of its annual estimates of costs and flows for the Treatment Plant, its annual calculation of
Leander 0 & M Charge for the Treatment Plant and the Leander Base Charges projected to be
incurred by Leander in the next ensuing Fiscal Year. Round Rock shall include such information
as may be reasonably necessary for Leander to confirm that Leander Base Charges and Leander
0 & M Charges are calculated in accordance with the terms and conditions of this Agreement.
Section 4.02. DISPUTES.
(a) Leander shall retain such rights as it may possess under applicable law to seek
administrative or judicial review of Round Rock's charges under this Agreement. If Leander at
any time disputes the amount to be paid by it under this Agreement, Leander shall nevertheless
promptly make the payment or payments determined by Round Rock and shall notify Round
Rock in writing of the dispute. If it is subsequently determined by agreement, administrative
agency or court decision, that such disputed payments made by Leander should be changed,
Round Rock shall promptly revise the charges in such manner that Leander will pay amounts
which permit Round Rock to receive the entire amount of Leander Base Charges and Leander 0
& M Charges permitted hereunder as the same may be modified by final effective order of an
administrative agency or court of appropriate jurisdiction, provided, however, nothing herein
shall ever be construed to prevent Round Rock from recovering from Leander the amount
required to meet Leander Base Charges and Leander 0 & M Charges hereunder for and with
respect to the Treatment Plant. If Leander Base Charges or Leander 0 & M Charges for the
Treatment Plant are redetermined as herein provided, Round Rock will promptly furnish Leander
with an updated schedule of monthly payments reflecting such redetermination.
(b) Prior to seeking judicial or administrative review, Leander shall submit any
protest or dispute relating to the budget or Leander Base Charges or Leander 0 & M Charges to
mediation in accordance with Article VII below.
Section 4.03. CHANGES FROM EMERGENCIES AND LEGAL ACTION. Round
Rock may adopt amendments to Leander Base Charges or Leander 0 & M Charges by following
a process similar to that provided above for the establishment of such matters initially if, during a
Fiscal Year, Leander Base Charges or Leander 0 & M Charges are changed due to:
5
(i)
unanticipated emergency capital expenses or Operation and Maintenance
Expenses are experienced that are properly allocable to Leander under
this Agreement; or
(ii) an adjustment is necessitated by regulatory requirement.
Section 4.04. LEANDER CHARGES; UNCONDITIONAL PAYMENT OBLIGATION.
(a) General. On or before the fifteenth day of each month, Leander shall pay its Leander
Base Charge and its Leander 0 & M Charge. During the term of this Agreement, Leander Base
Charge for Leander to be paid each month shall be in the amount of $14,059.00, which Leander
and Round Rock believe is a reasonable basis upon which to allocate said costs.
(b) It is hereby agreed that upon the effective date of this Agreement, Leander shall be
unconditionally obligated to pay Leander Base Charge and Leander 0 & M Charge regardless of
whether or not Leander actually discharges Wastewater hereunder, whether due to Force Majeure
or otherwise. Leander agrees that its obligation to pay Leander Base Charge and Leander 0 & M
Charge shall be absolute and unconditional, irrespective of any rights of set-off, diminution,
abatement, recoupment or counterclaim Leander might otherwise have against Round Rock or
any other person, and Leander covenants not to seek and hereby waives, to the extent permitted
by applicable law, the benefits of any rights which it may have at any time to any stay or
extension of time for performance or to terminate, cancel or limit its liability to pay Leander Base
Charge. and Leander 0 & M Charge. Such additional agreement shall in all respects be consistent
with the requirements of this Agreement regarding the payment of Leander Base Charge by
Leander. This provision shall not be construed to prevent Leander from appealing the amount of
Leander Base Charge in accordance with the dispute provisions of this Agreement.
(c) The preceding paragraph shall not be construed to release Round Rock from the
performance of any of its undertakings contained in this Agreement or, except to the extent
provided in this section, prevent or restrict Leander from asserting any rights which it may have
against Round Rock or any other person under this Agreement or under any provision of law or
prevent or restrict Leander, at its own cost and expense, from prosecuting or defending any action
or proceeding against or by third parties or taking any other action to secure or protect its rights
under this Agreement.
(d) In the event additional capital costs are incurred due to the repair or rehabilitation of
the Treatment Plant on behalf of Leander, the City of Round Rock reserves the right to issue
additional debt for such improvements made on behalf of Leander and to increase the $14,059 per
month payment accordingly. The Leander Base Charge will be amended accordingly. Except in
the event of emergencies, Round Rock agrees to provide not less than 90 days prior written notice
of any such proposed repair or rehabilitation, along with information regarding the necessity
thereof, the projected costs thereof, and the allocation of costs associated therewith to Leander.
Section 4.05. LEANDER 0 & M CHARGES
(a) During the term of this Agreement, Leander each month shall be required to pay
Leander 0 & M Charges designed to recover that portion of the Round Rock Flow Charge herein
allocated to Leander.
(b) Adjustment for Actual. In the event that the Round Rock Flow Charges are adjusted
in accordance with the Master Contract, Round Rock shall report to Leander the difference, if
6
any, between the amounts collected from Leander and the actual Round Rock Flow Charges. The
difference, if any, shall be applied as an adjustment in calculating Leander 0 & M Charge
pursuant to this section for the Fiscal Year immediately following the Fiscal Year in which the
actual Round Rock Flow Charges are known. The difference, if any, shall also be adjusted at the
termination of this Agreement.
Section 4.06. HOW, WHEN AND WHERE PAYMENTS ARE TO BE MADE. Delivery
to Leander of the final budgets for a Fiscal Year, together with the schedule of resulting Leander
Base Charges and Leander 0 & M Charges, shall constitute the invoice for same for the entire
Fiscal Year. Payment of all Leander Base Charges and Leander 0 & M Charges required to be
paid by Leander under the provisions of this Agreement shall be made to Round Rock. All
charges payable for any calendar month shall be due and payable in Williamson County, Texas,
on or before the first day of such month. Past due payments shall bear interest from the date due
until paid at the rate of ten percent (10%) per annum.
Section 4.07. DEFAULT.
(a) Monetary Defaults by Leander. In the event Leander defaults in the payment of
Leander Base Charge or Leander 0 & M Charge required hereunder, Round Rock shall
immediately give notice of such default to Leander; provided, however, that nothing in this
section shall prevent Leander from paying under protest any amount alleged as owed to Round
Rock or prevent Round Rock from accepting any payment even if less than the amount alleged by
Round Rock as owed by Leander. Payment or receipt of any such disputed amount shall not be
construed as a waiver of any right of the party making or receiving such disputed amount to
contest such matter and to demand payment or receipt of a different amount. Thereafter, Leander
shall take all appropriate steps to correct such default and shall correct such default within ten
(10) days after receipt of such notice. Any past due amount shall be paid, together with interest at
the rate of ten percent (10%) per annum.
(b) Other Defaults by Leander or Round Rock. In the event that Leander or Round Rock
defaults in the performance of any of their respective obligations under this Agreement, other
than the obligation to make payments of Leander Base Charge or Leander 0 & M Charge, the
non -defaulting party, after giving reasonable notice of the default and opportunity to cure same,
may exercise any remedy at law or in equity or as provided below in Article VII.
ARTICLE V
TERMINATION
Section 5.01. TERMINATION OF THIS AGREEMENT. As more particularly described
below, the parties hereto agree that this Agreement shall be terminated upon (i) the completion of
construction of an expansion to the Treatment Plant with capacity paid for and reserved by
Leander, (ii) notice in accordance with Section 5.03 below from Round Rock to Leander that
Round Rock no longer has surplus treatment capacity in the Treatment Plant, or (iii) on December
31, 2020, whichever first occurs.
Section 5.02. EXPANSION OF TREATMENT CAPACITY. It is anticipated that in less
than ten (10) years from the effective date hereof that one or more of the Cities and Leander will
seek to expand the Treatment Plant to increase the reserve treatment capacity for one or more of
the Cities and to provide Leander with its own reserved treatment capacity. This Agreement shall
terminate upon completion of the treatment plant expansion.
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Section 5.03. ROUND ROCK'S NEED FOR CAPACITY. Leander acknowledges that
the treatment capacity that it is utilizing pursuant to the terms of this Agreement is temporarily
surplus Round Rock Reserved Capacity that Round Rock will need sometime in the future.
Therefore, Round Rock has the right to terminate this Agreement at any time by giving Leander
written notice thirty-six (36) months prior to the date that Round Rock wished to terminate this
Agreement and utilize its reserved capacity. The written notice must be from the Round Rock
City Council and state that the Council finds that there is an urgent public need for the capacity
and for the termination of this Agreement.
Section 5.04. Term. In the event that this Agreement is not terminated because of an
expansion or because of Round Rock's need for capacity, as set out above, then this Agreement
shall terminate on December 31, 2020.
ARTICLE VI
GENERAL PROVISIONS
Section 6.01. PAYMENTS TO CONSTITUTE OPERATING EXPENSES OF
LEANDER. Leander represents and covenants that the services to be obtained pursuant to this
Agreement are essential and necessary to the operation by Leander of its own wastewater
facilities and the provision of sanitary sewer services to its constituents, and that all payments to
be made hereunder by it will constitute essential and necessary operating expenses of Leander's
waterworks and sanitary sewer systems, and such expenses constitute essential and necessary
operating expenses as referred to in all resolutions and documents authorizing the issuance of all
bonds of Leander which are payable from revenues of Leander's waterworks and sanitary sewer
systems. The parties acknowledge that Round Rock intends, in cooperation with the other Cities,
to own and operate the System as capital improvements on behalf of Leander within the meaning
of Section 395.002(1), Texas Local Government Code. The parties understand and agree that the
decision as to whether the capital improvements constructed or acquired by Round Rock on
behalf of Leander are used to serve new development (within the meaning of Section 395.001(6),
Texas Local Government Code) and the decision as to whether to impose any impact fees (within
the meaning of Section 395.001(4), Texas Local Government Code) is exclusively that of
Leander. Round Rock agrees, upon receiving a written request from Leander, to provide
information and other assistance regarding Round Rock's calculation of Leander Base Charges
and Leander 0 & M Charges to assist Leander in its efforts to implement or defend any capital
recovery fee or impact fee of Leander related to the System.
Section 6.02. LEANDER'S RATES, FEES AND CHARGES. Round Rock acknowledges
that Leander has the right under applicable law to assess, charge and collect such Leander impact
fees, capital recovery fees, connection fees, meter fees, fees for service and other service fees,
rates, taxes and other charges as it will deem appropriate. Round Rock will not construe this
Agreement to require (except as provided otherwise in this Section), limit or restrict the
governmental power of Leander to implement the same. Leander will be solely responsible for
the proper exercise of its governmental power to assess and collect such fees and charges and for
ensuring that all fees, taxes, rates and charges Leander elects to charge are in compliance with
applicable law. Leander agrees to establish and collect such rates and charges for its waterworks
and sanitary sewer services to be supplied by its system as will make possible the prompt
payment of all expenses of operating and maintaining its system including the payments
committed hereunder, and the prompt payment of the principal of and interest on its obligations,
if any, payable from the revenues of its waterworks and sanitary sewer systems.
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Section 6.03. FORCE MAJEURE. In case by reason of "Force Majeure" any party hereto
shall be rendered unable wholly or in part to carry out its obligations under this Agreement, then
if such party shall give notice and full particulars of such "Force Majeure" in writing to the other
parties within a reasonable time after occurrence of the event or cause relied on, the obligation of
the party giving such notice, so far as it is affected by such Force Majeure, with the exception of
the obligation to pay amounts owed hereunder, shall be suspended during the continuance of the
inability then claimed, but for no longer period, and any such party shall endeavor to remove or
overcome such inability with all reasonable dispatch. The term "Force Majeure" as employed
herein shall mean acts of God, strikes, lockouts or other industrial disturbances, acts of public
enemy, orders of any kind of the United States or the State of Texas or any civil or military
authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes,
storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances,
explosions, breakage or accidents to machinery, pipelines or canals, partial or entire failure of
water supply and inability on the part of Leander to provide water necessary for operation of its
water and wastewater system hereunder or of Round Rock to receive Wastewater on account of
any other causes not reasonably within the control of the party claiming such inability. It is
understood and agreed that the settlement of strikes and lockouts shall be entirely within the
discretion of the party having the difficulty and that the above requirement that any Force
Majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes
and lockouts by acceding to the demands of the opposing party or parties when such settlement is
unfavorable in the judgment of the party having the difficulty.
Section 6.04. GOVERNMENTAL REGULATION. This Agreement shall be subject to
all valid rules, regulations and laws applicable hereto passed or promulgated by the United States
of America, the State of Texas or any governmental body or agency having lawful jurisdiction or
any authorized representative or agency of any of them. In each instance herein where reference
is made to a federal or state regulation, it is the intention of the parties that at any given time the
then current edition of any such federal or State regulation shall apply. Round Rock and Leander
agree that their obligations under this Agreement shall include compliance with the requirements
made under said laws, and any rules and regulations issued pursuant thereto. New standards shall
be adopted by Leander, and Round Rock which are in compliance with applicable State and
federal laws and any valid rules and regulations issued pursuant thereto.
Section 6.05. LEANDER COOPERATION TO ASSURE REGULATORY
COMPLIANCE. Since Round Rock and the other Cities must comply with all federal, state and
local requirements to obtain permits, grants and assistance for system construction, studies, etc.,
Leander will cooperate with the Cities in good faith at all times to assure compliance with any
such governmental requirements where noncompliance or non-cooperation by Leander may
subject Round Rock to penalties, loss of grants or other funds, or other adverse regulatory action.
In making the determinations called for herein, Round Rock covenants that such determinations
will be made only after detailed studies of statistical data available as to the need and feasibility
have been made and after consulting with engineers and financial advisors. Leander will be kept
advised at all times of planning and implementing Required Improvements. In that regard,
Leander agrees to adopt and enforce, and to provide in its wholesale contracts with its water
customers in the future that they shall adopt and enforce, an appropriate water conservation
and/or drought management plan as required by the Texas Water Development Board.
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Section 6.06. CONTRACTS WITH OTHERS IN RELATION TO SYSTEM.
(a) Leander shall have the right to enter into contracts with other persons natural or
corporate, private or public within the Leander Service Area, to receive Wastewater from such
persons. Leander covenants that it will provide Round Rock with copies of all such written
contracts and will, if requested by Round Rock, furnish Round Rock with a list of all customers
within the Leander Service Area other than retail and residential customers. Initially, within thirty
(30) days after execution of this Agreement, and thereafter for each calendar year during the
tenure hereof, Leander will send to Round Rock by January 15 of each year an annual report
containing the following data about Leander's customers that the System ultimately serves:
(1) actual number of connections as of the end of the calendar year;
(2) number of new wastewater connections made in the previous calendar year;
(3) classification, by number and percentage, of accounts according to the following:
(i) residential;
(ii) multi -family;
(iii) business/commercial; and
(iv) other; and
(4) if business or commercial connections, a copy of any Leander industrial waste
discharge permit issued to such premises.
(b) Round Rock shall have the right to enter into or amend agreements with other
persons, including, without limitation, entering into agreements with other customers or
amendments of the Master Contract, so long as such agreements or amendments do not prevent
Round Rock from meeting its obligations to provide service to Leander from the Treatment Plant
in accordance with this Agreement and do not result in alienation of Reserved Capacity necessary
to meet Leander's needs. Under no circumstances may Round Rock enter into such agreements
that would require the use of Wastewater facilities owned or operated by Leander without
Leander's prior written consent.
Section 6.07. LEANDER SERVICE AREA. Leander agrees that it will not provide or
enter into an agreement to provide Wastewater service directly or indirectly outside of the
Leander Service Area unless Round Rock consents. For purposes of this Agreement, Leander's
Service Area shall mean the area as shown in Exhibit B attached to the Master Contract.
Section 6.08. NO ADDITIONAL WAIVER IMPLIED. No waiver or waivers of any
breach or default (or any breaches or defaults) by any party hereto of any term, covenant,
conditions, or liability hereunder, or of performance by the other parties of any duty or obligation
hereunder, shall be deemed or construed to be a waiver of subsequent breaches or defaults of any
kind, under any circumstances.
Section 6.09. ADDRESSES AND NOTICE. Unless otherwise provided, in this
Agreement, any notice, communication, request, reply, or advice (herein severally and
collectively, for convenience, called "Notice") herein provided or permitted to be given, made or
accepted by any party to the others must be in writing and may be given or be served by
depositing the same in the United States mail postpaid and registered or certified and addressed to
the party to be notified, with return receipt requested, or by delivering the same to an officer of
such party, or by telecopier, when appropriate, addressed to the party to be notified. Notice
deposited in the mail in the manner hereinabove described shall be conclusively deemed to be
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effective, unless otherwise stated in this Agreement, from and after the expiration of four (4) days
after it is so deposited. Notice given in any other manner shall be effective only if and when
received by the party to be notified. For the purpose of notice, the addresses of the parties shall,
until changed as hereinafter provided, be as follows:
If to Round Rock, to:
City Manager
City of Round Rock
221 E. Main St.
Round Rock, Texas 78664
with a copy to:
Stephan L. Sheets
Sheets & Crossfield
309 E. Main St.
Round Rock, Texas 78664
If to Leander, to:
City Manager
City of Leander
200 West Willis Street
Leander, Texas 78641-1781
Fax No. (512) 528-2831
with a copy to:
Knight & Partners
Attorneys at Law
223 West Anderson Lane #A-105
Austin, Texas 78752
Fax (512) 323-5773
The parties shall have the right from time to time and at any time to change their
respective addresses and each shall have the right to specify as its address any other address by at
least fifteen (15) days written notice to the other parties.
Section 6.10. MODIFICATION. This Agreement may not be changed or modified
without the mutual consent of the governing bodies of each of the parties hereto, which consent
shall not be unreasonably withheld or delayed.
Section 6.11. ASSIGNABILITY; SUCCESSORS IN INTEREST. This Agreement shall
not be assignable by any party without the prior written consent of the other party, which consent
shall not be unreasonably withheld or delayed.
Section 6.12. SEVERABILITY. The provisions of this Agreement are severable, and if
any provision or part of this Agreement or the application thereof to any person or circumstance
shall ever be held by any of competent jurisdiction to be invalid or unconstitutional for any
reason, the remainder of this Agreement and the application of such provision or part of this
Agreement to other persons or circumstances shall not be affected thereby.
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Section 6.13. MERGER. Other than the other contracts mentioned herein, this Agreement
constitutes the entire agreement between the parties relative to the subject matter thereof. Except
as noted in the previous sentence, there have been and are no agreements, covenants,
representations or warranties between the parties other than those expressly stated herein or
expressly provided for herein.
Section 6.14. VENUE. Venue for any action arising hereunder will be in Williamson
County, Texas.
Section 6.15. NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement,
express or implied, is intended to confer upon any person or entity, other than the parties hereto,
any rights, benefits, or remedies under or by reason of this Agreement.
ARTICLE VII
NEGOTIATION AND MEDIATION OF DISPUTES
Section 7.01. AGREEMENT REGARDING REMEDIES. The parties agree that their
respective obligations under this Agreement are unique. The failure by either party to perform its
obligations under this Agreement would not be capable of being appropriately remedied by award
of damages to the other party to this Agreement and in any event, such damages would be
difficult, if not impossible, to determine because of the unique nature of the parties' obligations to
each other hereunder. Further, the parties agree that the remedy of termination of this Agreement
by either party is inappropriate and not in the public interest. Therefore, the parties agree that they
shall be entitled, and limited, to the remedies of specific performance, mandamus and injunction
in the event of any breach of any obligation by any party under this Agreement. The parties
hereby waive any requirement that they be required to provide any bond or other surety in order
to obtain any of the agreed upon remedies. The parties also agree that attorney's fees and court
costs incurred by any party prevailing in any legal action to enforce this Agreement or collect or
defend any amounts owed or claimed as owed shall be paid by the non -prevailing party.
Section 7.02. AGREEMENT TO NEGOTIATE FIRST TO RESOLVE ISSUES. The
parties agree to attempt first to resolve disputes concerning this Agreement amicably by promptly
entering into negotiations in good faith. The parties agree that they will not refer any dispute to
another dispute resolution procedure including mediation or litigation until they have first made
reasonable and good faith efforts to settle their differences by joint negotiations conducted in a
timely manner.
Section 7.03. ELECTION OF REMEDIES. If any dispute cannot be resolved through
good faith negotiation, then the parties may resolve the dispute by mediation as provided herein.
An election to mediate any dispute by either party shall be binding, and shall preclude the same
dispute from being resolved by judicial or administrative proceeding (except to the extent
required to enforce the mediator's decision).
Section 7.04. PRESENTATION OF WRITTEN CLAIM REGARDING DISPUTES
NOT RESOLVED BY NEGOTIATION. In the event that a dispute is not resolved as a result of
such negotiations, either party may at any time give formal written notice to the other of a
"claim." A "claim" as used herein means a demand or assertion by one of the parties (the
"claimant") seeking, as a matter of right, adjustment or interpretation of contract terms, the
payment of money, an extension of time for performance or other relief with respect to the terms
of this Agreement or any other dispute or matter in question among the parties arising out of or
related to this Agreement. By way of example and without limitation, a claim may relate to the
12
calculation of charges, the allocation of costs, the reasonableness of costs, compliance with this
Agreement, and calculation or allocation of flows to the Treatment Plant. Such notice shall be in
writing, and shall specify whether the forum for resolution of the dispute shall be judicial,
administrative, or mediation. If a party elects to resolve a claim by mediation, the dispute
resolution procedure provided for below shall immediately enter into effect.
Section 7.05. PERFORMANCE DURING MEDIATION. The claimant shall continue
with performance under this Agreement pending mediation of the dispute.
Section 7.06. APPOINTMENT OF MEDIATOR. Promptly following the making of a
written claim by any party, the parties will consult with one another to agree on the appointment
of a mediator acceptable to all parties. The mediator shall have experience in matters of the kind
giving rise to the claim. If within five (5) business days the parties are unable to agree on the
appointment of a mediator, then any party may request the appointment of a mediator by the
Center for Public Policy Dispute Resolution at the University of Texas at Austin School of Law.
The parties shall endeavor to secure such appointment from the Center for Public Policy Dispute
Resolution within ten (10) business days after the request for same is made. The parties agree to
utilize the mediator appointed by the Center unless they ultimately reach agreement on an
alternative selection and give notice to the Center that another selection has been made by
agreement.
Section 7.07. RULES FOR MEDIATION. The parties agree to the following stipulations
concerning the conduct of the mediation:
interest.
(a) The mediator shall be impartial among the parties and shall have no conflict of
(b) The mediator shall not have any past, present or anticipated financial interest in
the Agreement or the System except for the payment for services as mediator nor shall the
mediator have been previously employed or acted as a consultant, attorney, employee, engineer,
architect, contractor or subcontractor of any party nor have any present or anticipated future
engagement of kind described. Before the engagement of the mediator is finalized, the mediator
shall provide to the parties a disclosure statement containing a resume of experience, a
description of past, present or anticipated future relationships to the System and the parties, their
engineers, contractors, subcontractors, attorneys, architects, or consultants.
(c) The mediation shall be held at a time and location mutually agreeable to the
parties and the mediator provided, however, that the mediation shall commence no later than
fifteen (15) business days following the confirmation of appointment.
(d) At least five (5) business days prior to the mediation, the claimant shall submit to
the parties and the mediator a statement of the claimant's position, the issues that need to be
resolved and a summary of the arguments supporting the claimant's position. At least two (2)
business days prior to the mediation, the responding parties shall submit their written response to
the claimant's statement and provide a summary of their arguments in response.
(e) If the parties agree that independent expert or technical advice would be helpful
in facilitating a negotiated resolution of the dispute, the mediator may make arrangements to
obtain such advice, and may, with the agreement of the parties, make arrangements for an
independent expert to render a non-binding advisory opinion with respect to any technical matters
13
in dispute after hearing the contentions of the parties with respect thereto. The expenses of
obtaining such independent advice or advisory opinion shall be borne equally by the parties.
(fl No party shall engage in any private interview, discussion or argument with the
mediator concerning the subject matter of the mediation.
(g) The fees of the mediator and any other costs of administering the mediation shall
be borne equally by the parties unless otherwise agreed among them in writing.
(h) The mediator may promote settlement in any manner the mediator believes
appropriate at one or several mediation sessions as agreed to by the parties. The mediation shall
continue only so long as desired by the parties and with the consent of all of them.
(i) Mediation sessions shall be private unless otherwise required by law. Persons
other than the representatives of the parties may attend mediation sessions only with the
permission of all parties and the consent of the mediator.
(j) All communications made in the course of the mediation process including any
advice or advisory opinions rendered shall be confidential in accordance with V.T.C.A. Civil
Practice and Remedies Code, Section 154.073.
(k) The mediator's decision shall be final and binding upon the parties.
Section 7.08. EXCEPTION. Notwithstanding the foregoing provisions of Sections 7.02-
7.07, the parties agree that those provisions shall not be applicable in emergency situations.
Section 7.09 WAIVER OF SOVEREIGN IMMUNITY. The parties acknowledge and
agree that this Agreement is a written contract stating the essential terms of an agreement for
providing goods and services to Leander, and that each party hereto intends to waive its sovereign
immunity to suit for the sole purpose of adjudicating a claim for breach of this Agreement,
subject to the terms and conditions of Subchapter I of Chapter 271 of the Texas Local
Government Code or any other applicable statute.
Section 7.10 ATTORNEYS' FEES. Pursuant to §271.159 of the Texas Local
Government Code, the prevailing party in a claim arising out of or to enforce this Agreement
shall be entitled to recover from the other party its reasonable and necessary attorneys' fees. This
provision specifically applies to but is not limited to judgments awarding damages, court orders
compelling performance, and mediator decisions pursuant to this Article VII.
14
CITY OF ROUND ROCK, TEXAS
hp)
Alan McGraw, Mayor
Attest:
44/Mv• '4WD,
Sara White, City Secretary
15
CITY OF LEANDER
i. ‘ el
n Cowman, Mayor
ATTEST:
,..1 ai,h-
Debbie Haile, City Secretary
16