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R-10-11-09-10D4 - 11/9/2010RESOLUTION NO. R -10-11-09-10D4 WHEREAS, the Brazos River Authority ("BRA") the City of Georgetown, the City of Round Rock ("City"), and the Jonah Water Supply Corporation (n/k/a Jonah Water Special Utility District) entered into the Williamson County Regional Raw Water Line Agreement (Base Agreement) on July 9, 1986, as amended by Amendment No. 1 dated January 9, 1997 and Amendment No. 2 dated March 23, 1998, and WHEREAS, Brushy Creek Municipal Utility District and Chisholm Trail Special Utility District became Participants of the Base Agreement in October 1998 and March 1999, respectively, and WHEREAS, multiple agreements were amended by the Third Amendment of Agreements Among Customers, dated September 28, 2006, and WHEREAS, the City Council wishes to enter into a Fourth Amendment of Agreements Among Customers to define and provide for payment of the Phase II Pump Project, 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 the Fourth Amendment of Agreements Among Customers with Brazos River Authority, City of Georgetown, City of Round Rock, Jonah Water Special Utility District, Brushy Creek Municipal Utility District, and Chisholm Trail Special Utility District, a copy of said contract 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:Awdax\SCClvlsV0111,1005\MUNICIPALA 00206775.DOChmc RESOLVED this 9th day of November, 2010. ATTEST: 56) -1444,.1412.60E4 - SARA L. WHITE, City Secretary ALAN MCGRAW, Mayor City of Round Rock, Texas 2 FOURTH AMENDMENT OF AGREEMENTS AMONG CUSTOMERS This FOURTH AMENDMENT OF AGREEMENTS AMONG CUSTOMERS ("Fourth Amendment of Agreements") made and entered into this day of 2010, by and between BRAZOS RIVER AUTHORITY ("Authority"), CITY OF GEORGETOWN ("Georgetown"), CITY OF ROUND ROCK ("Round Rock"), JONAH WATER SPECIAL UTILITY DISTRICT ("Jonah"), BRUSHY CREEK MUNICIPAL UTILITY DISTRICT ("Brushy Creek"), AND CHISHOLM TRAIL SPECIAL UTILITY DISTRICT ("Chisholm Trail") (collectively the "Parties). RECITALS WHEREAS, the Authority and Georgetown, Round Rock and Jonah ("Participants") entered into the "Williamson County Regional Raw Water Line Agreement Between Brazos River Authority and City of Georgetown, City of Round Rock and Jonah Water Supply Corporation" ("Base Agreement") on July 9, 1986. Underlying the Base Agreement are raw water contracts between Authority and Participants respectively, which are collectively defined in the Base Agreement as the "Stillhouse Supply Agreements"; and WHEREAS, the Base Agreement was amended by "Amendment No. 1 to Williamson County Regional Raw Water Line Agreement", dated January 9, 1997; and WHEREAS, Brushy Creek and Chisholm Trail ("Additional Participants") became Participants in agreements dated October 1, 1998, March 15, 1999, respectively ("Additional Participant Agreements"). Underlying the Additional Participant Agreements are raw water contracts between Authority and Additional Participants respectively, which are defined in the Additional Participant Agreements as "Supply Agreements"; and WHEREAS, the Base Agreement was again amended by "Second Amendment to Williamson County Regional Raw Water Line Agreement By and Between Brazos River Authority and City of Georgetown, City of Round Rock, and Jonah Water Special Utility District" ("Second Amendment"), dated March 23, 1999, which among other modifications, replaced the definition of "Stillhouse Supply Agreements" with a new definition which incorporated all then -present raw water contracts between Authority and Participants and Additional Participants ("Customers") in which water would be transported from Lake Stillhouse Hollow to Lake Georgetown through the Williamson County Regional Raw Water Line ("Project"); and WHEREAS, the Base Agreement and Additional Participant Agreements (collectively "Multiple Agreements") were amended by "Supplemental Agreement Respecting Williamson County Raw Water Line" dated May 20, 1999, which allowed for the Texas Water Development Board to participate in the Project; and EXHIBIT WHEREAS, the Multiple Agreements were amended by "Amendment Of Agreements Respecting Construction And Operation Of Williamson County Raw Water Line" dated April 17, 2000, which modified Subsection 5(b) of Base Agreement and Subsection 6(b) of the Additional Participant Agreements; and WHEREAS, the Multiple Agreements were amended by the "Third Amendment of Agreements Among Customers" dated September 28, 2006, which modified the definition of "Stillhouse Supply Agreements" as defined in the Base Agreement and modified in the Second Amendment, and "Supply Agreements" as defined in the Additional Participant Agreements in order to avoid ambiguity due to the changes in the Stillhouse Supply Agreements and Supply Agreements; and WHEREAS, additional pumping capacity at the intake structure is now required to meet the raw water demands of the Customers, and the Customers have acknowledged the need for additional pumps. The Customers have requested that the Authority engineer, design, and construct an improvement project (the "Phase II Pump Project") to install larger pumps in order to meet Customer demands. As such, the Parties desire to amend the Multiple Agreements by this Fourth Amendment of Agreements to define and provide for payment of the Phase II Pump Project. NOW, THEREFORE, in consideration of mutual promises contained herein, the Parties agree as follows: DEFINITIONS All capitalized terms used in this Fourth Amendment of Agreements that are not otherwise defined herein shall have the respective meanings ascribed to them in the Multiple Agreements. AMENDMENTS 1. Add the following as Subsection (ff) in Section 2. Defintions of the Base Agreement and as Subsection (bb) in Section 1. Definitions of the Additional Participant Agreements: "'Phase II Pump Project' means the installation of two, twenty-five hundred horsepower pumps at the intake structure on Lake Stillhouse Hollow, any associated appurtenances necessary to operate and maintain such pumps, any necessary structural improvements to the intake structure, structural modifications to the Project at State Highway 195, and any other activities or purchases requested by the Customers to insure continued operations of the Williamson County Regional Raw Water Line, including, but not limited to, spare parts for existing pumps or additional backup pumps." 2. Add the following as Section 18 in the Base Agreement and as Section 13 in the Additional Participant Agreements: "PHASE 11 PUMP PROJECT. The Customers acknowledge the need for additional pumping capacity at the intake structure and have approved the installation of additional pumps. Accordingly, the Customers agree that the Authority shall engineer, design, and construct the Phase II Pump Project. During engineering and design for the Phase II pump improvements, the engineer determined that structural improvements are necessary to support the intake. The Authority and the Customers hereby acknowledge and agree that these structural improvements are necessary before any additional pumps can be added to the intake structure. Additionally, the Texas Department of Transportation (TXDOT) has begun a project to widen State Highway 195. The Project is within the TXDOT right-of-way just north of the Shell Road intersection and continues in the public right-of-way south of the intersection. TXDOT is requiring the Authority encase approximately 105 feet of the pipeline under the east bound frontage road. As this portion of the Project is within the TXDOT right-of-way, the cost of the required pipeline modifications will be borne by the Customers and this work shall be included in the Phase II Pump Project. All costs of the Phase II Pump Project, including, without limitation, those costs associated with any structural improvements of the intake structure and the modifications at State Highway 195, shall be the responsibility of the Customers; provided, however, that the total cost of the Phase II Pump Project shall not exceed $6,100,000.00, without written approval of the Customers. Costs of Phase II Pump Project shall be allocated to each Customer in proportion to the percentage of system water available to that Customer which is under contract in Stillhouse Hollow Reservoir and is to be transported through the Williamson County Regional Raw Water Line. The current customer percentages are as follows: (a) City of Georgetown (b) City of Round Rock (c) Chisholm Trail Special Utility District (d) Brushy Creek Municipal Utility District (e) Jonah Special Utility District 41.64% 29.67% 18.16% 6.54% 3.99% The Authority may issue bonds or use any other source of funds available to Authority to pay for the Phase II Pump Project. Payment for the Phase II Pump Project shall be included in each Customer's Monthly Charge. The pumps, appurtenances, and structural improvements installed as a result of the Phase II Pump Project shall become part of the Project." MULTIPLE COUNTERPARTS Circulation of counterparts of this Fourth Amendment of Agreements among Customers to obtain the signatures of all Customers on the same copies hereof would be inconvenient and result in delay. Therefore, this Fourth Amendment of Agreements has been prepared in multiple copies with two copies being prepared for signature on behalf of Authority, on the one hand, and on behalf of each Customer, alone, on the other hand. When all copies have been signed on behalf of Authority and each of the copies prepared for the signature of each Customer has been signed by such Customer, Authority shall give written notice of such fact to all Customers and this Fourth Amendment of Agreements shall thereupon become effective. Authority shall retain possession of one copy of this Fourth Amendment of Agreement executed by it on the one hand and each Customer on the other hand. Each Customer shall receive possession of one copy executed by Authority on the one hand and by it on the other hand. This Fourth Amendment of Agreements, when it becomes effective, shall be binding on Authority and all Customers and subject to enforcement by any party against any other. IN WITNESS WHEREOF, the parties have caused this amendment to be duly executed, intending to be bound thereby. BRAZOS RIVER AUTHORITY BY Date Phil Ford, General Manager/CEO ATTEST: CITY OF GEORGETOWN BY Date Mayor ATTEST: CITY OF ROUND ROCK BY Date Mayor ATTEST: ATTEST: JONAH WATER SPECIAL UTILITY DISTRICT BY Date President ATTEST: BRUSHY CREEK MUNICIPAL UTILITY DISTRICT BY Date President CHISHOLM TRAIL SPECIAL UTILITY DISTRICT BY Date President ATTEST: GENERAL CERTIFICATE OF ROUND ROCK THE STATE OF TEXAS COUNTIES OF WILLIAMSON AND TRAVIS CITY OF ROUND ROCK We, the undersigned City Manager and City Secretary of the City of Round Rock, Texas (the "Participant") hereby certify as follows: 1. That this certificate is executed for the benefit of the Attorney General of the State of Texas and the prospective owners of the proposed Brazos River Authority Contract Revenue Refunding Bonds, Series 2010 (Williamson County Regional Raw Water Line Project) and Brazos River Authority Contract Revenue Bonds, Series 2010 (Williamson County Regional Raw Water Line Project) each dated , 2010 (collectively, the "Bonds"), authorized by a resolution adopted by the Board of Directors of the Brazos River Authority (the "Authority") on July 26, 2010 (the "Bond Resolution"). 2. That said Participant is a duly incorporated Home Rule City, operating and existing under the Constitution and laws of the State of Texas and the duly adopted Home Rule Charter of said Participant, which Charter has not been changed or amended since the passage of the ordinance authorizing the most recently issued Series of outstanding obligations of the Participant which have been approved by the Attorney General of Texas. 3. That the statements and information set forth in the Official Statement pertaining to the Participant and the Bonds, and particularly the Participant's operating statements, debt service re- quirements, revenues, taxable values, rates for water and sewer services (which rates have been set by official action of the Participant and are now in effect), and other information set forth therein are true and correct in all material respects. 4. That the Project Agreements (as defined in the Bond Resolution), between the Authority and the Participant, have been duly authorized by the Participant and properly executed by duly authorized officials of the Participant. 5. That the Project Agreements, between the Authority and the Participant, are still in full force and effect, have not been amended or rescinded, there is no litigation pending relating to the Project Agreements or the authority of the Participant to enter into the Project Agreements and no default exists in connection therewith. [The balance of this page is intentionally left blank.] SIGNED CITY OF ROUND ROCK City Manager City Secretary CLOSING CERTIFICATE THE STATE OF TEXAS COUNTIES OF WILLIAMSON AND TRAVIS CITY OF ROUND ROCK We, the undersigned City Manager and City Secretary of the City of Round Rock, Texas (the "Participant") hereby certify as follows: 1. That this certificate is executed for the benefit of the Attorney General of the State of Texas and the prospective owners of the proposed Brazos River Authority Contract Revenue Refunding Bonds, Series 2010 (Williamson County Regional Raw Water Line Project) and Brazos River Authority Contract Revenue Bonds, Series 2010 (Williamson County Regional Raw Water Line Project) each dated , 2010 (collectively, the "Bonds"). 2. That capitalized terms used herein shall have the meanings set forth in the Bond Purchase Agreement, dated , 2010, by and among the Brazos River Authority and Stephens Inc., Raymond James & Associates, Inc., Cabrera Capital Markets, Inc. and Fidelity Capital Markets Services (the "Agreement"). 3. That (i) the Participant has not received notice of any litigation, nor to our knowledge, is any litigation pending or threatened, in any court to restrain or enjoin the issuance or delivery of the Bonds, the establishment of the rates, fees and other charges relating to the Project (including the Participant's Monthly Charges) or the other authorized purposes of the Participant, the lien on and pledge of the Net Revenues pledged to the payment of the principal of and interest on the Bonds, or the pledge thereof, or in any way contesting or affecting the validity of the Bonds, the Bond Resolution, the Contracts, the Participant's Resolution, or the Agreement, or contesting the authority of the Issuer to issue the Bonds, or contesting the authorization of the Bonds, the Bond Resolution, the Agreement, the Contracts, or the Participants Resolution, or contesting in any way the accuracy, completeness, or fairness of the Preliminary Official Statement or the Official Statement, or that would otherwise adversely affect in a material manner the operations or the financial condition of the Participant; (ii) to the best of our knowledge, no event affecting the Participant has occurred since the date of the Official Statement which should be disclosed in the Official Statement for the purpose for which it is to be used or which it is necessary to disclose therein in order to make the statements and information therein not misleading in any material respect; (iii) the representations and warranties of the Participant contained in any certificate and document delivered by the Participant pursuant to the provisions of the Agreement, are true and correct on and as of the date of the Closing as though such representations and warranties were made on and as of the date of the Closing; (iv) the Contracts, together with all amendments thereto, have been duly approved, executed and delivered by the Participant and, with respect to the Participant, the Contracts and the obligations of the Participant thereunder (including the obligation to provide certain information in accordance with the Rule) remain in full force and effect and have not been rescinded; (v) during the last five years, the Participant has complied in all material respects with its continuing disclosure agreements, if any, pursuant to the Rule, except as otherwise described in the Official Statement; (vi) all agreements or conditions to be performed or complied with by the Participant under the Agreement to effect delivery of the Bonds on or prior to the date of Closing have been performed or complied with; and (vii) there has not been any materially adverse change in the operations or financial condition of the Participant since the date of the Official Statement. SIGNED this CITY OF ROUND ROCK City Manager City Secretary CERTIFICATE FOR ORDINANCE THE STATE OF TEXAS COUNTIES OF WILLIAMSON AND TRAVIS CITY OF ROUND ROCK We, the undersigned officers of said City, hereby certify as follows: L The City Council of said City convened in MEETING ON THE DAY OF , 2010, at the designated meeting place, and the roll was called of the duly constituted officers and members of said City Council, to wit: Alan McGraw, Mayor Rufus Honeycutt, Place 1 George White, Place 2 Joe Clifford, Place 3 Carlos T. Salinas, Mayor Pro -Tem, Place 4 John S. Moman, Place 5 Kris Whitfield, Place 6 Sara Whits, City Secretary and all of said persons were present, except the following absentees: thus constituting a quorum. Whereupon, among other business, the following was transacted at said Meeting: a written ORDINANCE REGARDING AGREEMENTS PERTAINING TO WILLIAMSON COUNTY REGIONAL RAW WATER LINE was duly introduced for the consideration of said City Council and read in full. It was then duly moved and seconded that said Ordinance be passed; and, after due discussion, said motion carrying with it the passage of said Ordinance, prevailed and carried with all members present voting "aye" except the following: NOES: None. ABSTAIN: None. 2. That a true, full and correct copy of the aforesaid Ordinance passed at the Meeting described in the above and foregoing paragraph is attached to and follows this Certificate; that said Ordinance has been duly recorded in said City Council's minutes of said Meeting; that the above and foregoing paragraph is a true, full and correct excerpt from said City Council's minutes of said Meeting pertaining to the passage of said Ordinance; that the persons named in the above and foregoing paragraph are the duly chosen, qualified and acting officers and members of said City Council as indicated therein; that each of the officers and members of said City Council was duly and sufficiently notified officially and personally, in advance, of the time, place and purpose of the aforesaid Meeting, and that said Ordinance would be introduced and considered for passage at said Meeting, and each of said officers and members consented, in advance, to the holding of said Meeting for such purpose, and that said Meeting was open to the public and public notice of the time, place and purpose of said meeting was given, all as required by the Texas Government Code, Chapter 551. SIGNED AND SEALED the day of , 2010. City Secretary (SEAL) ORDINANCE REGARDING AGREEMENTS PERTAINING TO WILLIAMSON COUNTY REGIONAL RAW WATER LINE THE STATE OF TEXAS CITY OF ROUND ROCK WHEREAS, Brazos River Authority (the "Authority") is an agency and political subdivision of the State of Texas, duly created and lawfully operating under Chapter 8502, Texas Special District Local Laws Code, as amended (the "Authority Act"), all pursuant to and in furtherance of the purposes of Article XVI, Section 59 of the Constitution of Texas; and WHEREAS, pursuant to the Authority Act, and other applicable laws, the Authority and other entities are authorized to enter into contractual agreements regarding the public purposes for which the Authority was created; and WHEREAS, amongst its authorized purposes, the Authority is authorized to store water in and to divert water from Lake Georgetown and Lake Stillhouse Hollow; and WHEREAS, pursuant to separate and individual contracts heretofore executed between the Authority, on one part, and the City of Georgetown ("Georgetown"), the City of Round Rock ("Round Rock"), Jonah Water Special Utility District (formerly Jonah Water Supply Corporation)("Jonah"), Brushy Creek Municipal Utility District of Williamson County, Texas ("Brushy Creek") and Chisholm Trail Special Utility District ("Chisholm Trail" )(collectively, Georgetown, Round Rock, Jonah, Brushy Creek and Chisholm Trail are herein referred to as the "Participants"), individually on their part, the Authority has contracted to make available to such parties water from Lake Stillhouse Hollow (which contracts are defined in the Base Agreement (hereinafter defined) as the "Stillhouse Supply Agreements" and in the Brushy Creek Agreement (as hereinafter defined) and Chisholm Trail Agreement (as hereinafter defined) as the "Supply Agreements"); and WHEREAS, the Participants are so located that it became desirable from the standpoint of cost that each should divert the surface water which each needs for municipal supply purposes from Lake Georgetown or points between Lake Stillhouse Hollow and Lake Georgetown, rather than from Lake Stillhouse Hollow; and WHEREAS, the Authority, Georgetown, Round Rock and Jonah entered into the "Williamson County Regional Raw Water Line Agreement" (the "Base Agreement"), dated as of June 30, 1986, for the purpose of providing for the Authority to design, construct and operate facilities for transporting water from Lake Stillhouse Hollow committed to Georgetown, Round Rock and Jonah to Lake Georgetown (the "Project") for diversion by them for municipal purposes; and WHEREAS, subsequent to execution of the Base Agreement, the Authority, Georgetown, Round Rock and Jonah entered into "Amendment No. 1 to Williamson County Regional Raw Water Line Agreement" ("Amendment No. 1"), dated as of January 9, 1997 and "Second Amendment to Williamson County Regional Raw Water Line Agreement" ("Amendment No. 2"), dated as of December 22, 1998; and WHEREAS, Section 15 of the Base Agreement provides that the Authority may provide service from the Project to parties other than Georgetown, Round Rock and Jonah, provided that certain conditions are met; and WHEREAS, such conditions having been met, the Authority entered into separate agreements with Brushy Creek called the "Participation Agreement with Respect to Williamson County Raw Water Line" ("Brushy Creek Agreement"), dated as of October 1, 1998 and subsequently with Chisholm Trail called the "Chisholm Trail Participation Agreement with Respect to Williamson County Raw Water Line" ("Chisholm Trail Agreement"), dated as of March 15, 1999, respectively; and WHEREAS, upon determining that the Texas Water Development Board would agree to pay for and acquire an undivided interest in the Project to be held for later acquisition by Authority as usage of Project increased, thus reducing the interim costs to the Participants pending their full need for the transportation capacity of the Project, the Authority and the Participants entered into the "Supplemental Agreement Respecting Williamson County Raw Water Line" ("Supplemental Agreement"), dated as of May 20, 1999; and WHEREAS, in order to accommodate the differences in the timing of water transportation needs and associated costs of the Project of the Participants, Authority and the Participants entered into the "Amendment of Agreements Respecting Construction and Operation of Williamson County Raw Water Line" ("Amendment of Multiple Agreements"), dated as of April 17, 2000; and WHEREAS, in order to avoid ambiguity in the Base Agreement, Brushy Creek Agreement and Chisholm Trail Agreement due to the changes in the Stillhouse Supply Agreements and Supply Agreements, the Authority entered into separate agreements with the Participants called the "Third Amendment of Agreements Among Customers" ("Amendment No. 3") to modify the definition of "Stillhouse Supply Agreements" as defined in the Base Agreement and modified in Amendment No. 2, and "Supply Agreements" as defined in the Brushy Creek Agreement and Chisholm Trail Agreement; and WHEREAS, collectively, the Base Agreement, Amendment No. 1, Amendment No. 2, Brushy Creek Agreement, Chisholm Trail Agreement, Supplemental Agreement, Amendment of Multiple Agreements and Amendment No. 3 are referred to as the "Project Agreements"; and WHEREAS, additional pumping capacity at the intake structure of the Project is now required to meet the raw water demands of the Participants, and the Participants have requested the Authority to engineer, design, and construct an improvement project (the "Phase II Pump Project") to install larger pumps in order to meet Participants' demands; and WHEREAS, the Authority and the Participants desire to amend the Base Agreement, Brushy Creek Agreement and Chisholm Trail Agreement by entering into a "Fourth Amendment of Agreements Among Customers" ("Amendment No. 4") to define and provide for payment of the Phase II Pump Project; and WHEREAS, in anticipation of the issuance of bonds by the Authority to finance costs of the improvements and extensions of the Project relating to the Phase If Pump Project pursuant to the Project Agreements and Amendment No. 4, and in order to clearly establish, authorize, ratify and confirm the contractual arrangements entered into by the Authority and the Participants and all actions taken by the parties since 1986 in reliance on the Project Agreements, it is deemed to be appropriate to adopt this ordinance. THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ROUND ROCK: Section 1. That the City Council of Round Rock hereby incorporates the recitals set forth in the preamble hereto as if set forth in full at this place and further finds and determines that said recitals are true and correct. Section 2. That, with respect to the Project Agreements to which Round Rock is a party, the actions of the City Council in authorizing the execution thereof, the authorization of, and the execution of such Project Agreements by officers, officials and employees of Round Rock and all actions taken in reliance upon and pursuant to such Project Agreements are hereby authorized, ratified and confirmed in all respects concurrently with the adoption of this ordinance. Section 3. That the Mayor, City Manager and City Secretary of Round Rock are hereby authorized and directed to execute, deliver and take all actions necessary and appropriate relating to Amendment No. 4 in substantially the form and content attached hereto, with such modifications as may be deemed appropriate by the Mayor or City Manager. Section 4. That the officers of the City Council, the City Manager and the administrative staff of Round Rock are hereby authorized and directed to take any and all actions necessary and appropriate with respect to construction, acquisition, improvement and extension of the Project according to the terms and provisions set forth in such Project Agreements and Amendment No. 4. Section 5. That this ordinance shall take effect immediately upon passage and all ordinances, orders and resolutions in conflict herewith are repealed to the extent of any such conflict. ROUND ROCK, TEXAS PURPOSE. PASSION PROSPERITY. City Council Agenda Summary Sheet Agenda Item No. 10D4. Agenda Caption: Consider a resolution authorizing the Mayor to execute a Fourth Amendment of Agreements among Customers with the Brazos River Authority, and ratifying previous agreements regarding the Williamson County Raw Water Line. Meeting Date: November 9, 2010 Department: Infrastructure Development and Construction Management Staff Person making presentation: Michael Thane, P.E. Director of Infrastructure Management Item Summary: Additional pumping capacity at the Lake Stillhouse intake structure is required to meet the raw water demands of the City of Round Rick, City of Georgetown, Brushy Creek MUD, Chisholm Trail SUD, and Jonah SUD (Customers). The entities have requested that the Brazos River Authority (BRA) construct improvements to install larger pumps in order to meet future demands. As such, the Customers desire to execute Amendment No. 4 to the agreement in order to define and provide for payment of the Phase II Pump project. The Phase II Pump project is for the installation of two 2,500 horsepower pumps at the intake structure on Lake Stillhouse hollow, any associated appurtenances necessary to operate and maintain such pumps, structural improvements to the intake structure, and structural modification to the line as it crosses State Highway 195. The total cost for the Phase II Pump project shall not exceed $6,100,000. Costs of the project shall be allocated to the Customers in proportion to the percentage of system water available to each Customer. Round Rock's current customer percentage is 29.67%. Strategic Plan Relevance: Goal 27.0 — Ensure there is an adequate, affordable, and safe water supply. Cost: Source of Funds: N/A N/A Date of Public Hearing (if required): N/A Recommended Action: Approval FOURTH AMENDMENT OF AGREEMENTS AMONG CUSTOMCOP Y This FOURTH AMENDMENT OF AGREEMENTS AMONG CUSTOMERS ("Fourth Amendment of Agreements") made and entered into this day of 2010, by and between BRAZOS RIVER AUTHORITY ("Authority"), CITY OF GEORGETOWN ("Georgetown"), CITY OF ROUND ROCK ("Round Rock"), JONAH WATER SPECIAL UTILITY DISTRICT ("Jonah"), BRUSHY CREEK MUNICIPAL UTILITY DISTRICT ("Brushy Creek"), AND CHISHOLM TRAIL SPECIAL UTILITY DISTRICT ("Chisholm Trail") (collectively the "Parties). RECITALS WHEREAS, the Authority and Georgetown, Round Rock and Jonah ("Participants") entered into the "Williamson County Regional Raw Water Line Agreement Between Brazos River Authority and City of Georgetown, City of Round Rock and Jonah Water Supply Corporation" ("Base Agreement") on July 9, 1986. Underlying the Base Agreement are raw water contracts between Authority and Participants respectively, which are collectively defined in the Base Agreement as the "Stillhouse Supply Agreements"; and WHEREAS, the Base Agreement was amended by "Amendment No. 1 to Williamson County Regional Raw Water Line Agreement", dated January 9, 1997; and WHEREAS, Brushy Creek and Chisholm Trail ("Additional Participants") became Participants in agreements dated October 1, 1998, March 15, 1999, respectively ("Additional Participant Agreements"). Underlying the Additional Participant Agreements are raw water contracts between Authority and Additional Participants respectively, which are defined in the Additional Participant Agreements as "Supply Agreements"; and WHEREAS, the Base Agreement was again amended by "Second Amendment to Williamson County Regional Raw Water Line Agreement By and Between Brazos River Authority and City of Georgetown, City of Round Rock, and Jonah Water Special Utility District" ("Second Amendment"), dated March 23, 1999, which among other modifications, replaced the definition of "Stillhouse Supply Agreements" with a new definition which incorporated all then -present raw water contracts between Authority and Participants and Additional Participants ("Customers") in which water would be transported from Lake Stillhouse Hollow to Lake Georgetown through the Williamson County Regional Raw Water Line ("Project"); and WHEREAS, the Base Agreement and Additional Participant Agreements (collectively "Multiple Agreements") were amended by "Supplemental Agreement Respecting Williamson County Raw Water Line" dated May 20, 1999, which allowed for the Texas Water Development Board to participate in the Project; and Uk-taxi- WHEREAS, the Multiple Agreements were amended by "Amendment Ocy eeemmen Respecting Construction And Operation Of Williamson County Raw Water Line" dated April 17, 2000, which modified Subsection 5(b) of Base Agreement and Subsection 6(b) of the Additional Participant Agreements; and WHEREAS, the Multiple Agreements were amended by the "Third Amendment of Agreements Among Customers" dated September 28, 2006, which modified the definition of "Stillhouse Supply Agreements" as defined in the Base Agreement and modified in the Second Amendment, and "Supply Agreements" as defined in the Additional Participant Agreements in order to avoid ambiguity due to the changes in the Stillhouse Supply Agreements and Supply Agreements; and WHEREAS, additional pumping capacity at the intake structure is now required to meet the raw water demands of the Customers, and the Customers have acknowledged the need for additional pumps. The Customers have requested that the Authority engineer, design, and construct an improvement project (the "Phase II Pump Project") to install larger pumps in order to meet Customer demands. As such, the Parties desire to amend the Multiple Agreements by this Fourth Amendment of Agreements to define and provide for payment of the Phase II Pump Project. NOW, THEREFORE, in consideration of mutual promises contained herein, the Parties agree as follows: DEFINITIONS All capitalized terms used in this Fourth Amendment of Agreements that are not otherwise defined herein shall have the respective meanings ascribed to them in the Multiple Agreements. AMENDMENTS 1. Add the following as Subsection (ff) in Section 2. Defintions of the Base Agreement and as Subsection (bb) in Section 1. Definitions of the Additional Participant Agreements: "'Phase II Pump Project' means the installation of two, twenty-five hundred horsepower pumps at the intake structure on Lake Stillhouse Hollow, any associated appurtenances necessary to operate and maintain such pumps, any necessary structural improvements to the intake structure, structural modifications to the Project at State Highway 195, and any other activities or purchases requested by the Customers to insure continued operations of the Williamson County Regional Raw Water Line, including, but not limited to, spare parts for existing pumps or additional backup pumps? 2. Add the following as Section 18 in the Base Agreement and as Secti 1 Additional Participant Agreements: "PHASE II PUMP PROJECT. The Customers acknowledge the need for additional pumping capacity at the intake structure and have approved the installation of additional pumps. Accordingly, the Customers agree that the Authority shall engineer, design, and construct the Phase II Pump Project. During engineering and design for the Phase II pump improvements, the engineer determined that structural improvements are necessary to support the intake. The Authority and the Customers hereby acknowledge and agree that these structural improvements are necessary before any additional pumps can be added to the intake structure. Additionally, the Texas Department of Transportation (TXDOT) has begun a project to widen State Highway 195. The Project is within the TXDOT right-of-way just north of the Shell Road intersection and continues in the public right-of-way south of the intersection. TXDOT is requiring the Authority encase approximately 105 feet of the pipeline under the east bound frontage road. As this portion of the Project is within the TXDOT right-of-way, the cost of the required pipeline modifications will be borne by the Customers and this work shall be included in the Phase II Pump Project. All costs of the Phase II Pump Project, including, without limitation, those costs associated with any structural improvements of the intake structure and the modifications at State Highway 195, shall be the responsibility of the Customers; provided, however, that the total cost of the Phase II Pump Project shall not exceed $6,100,000.00, without written approval of the Customers. Costs of Phase II Pump Project shall be allocated to each Customer in proportion to the percentage of system water available to that Customer which is under contract in Stillhouse Hollow Reservoir and is to be transported through the Williamson County Regional Raw Water Line. The current customer percentages are as follows: (a) City of Georgetown (b) City of Round Rock (c) Chisholm Trail Special Utility District (d) Brushy Creek Municipal Utility District (e) Jonah Special Utility District 41.64% 29.67% 18.16% 6.54% 3.99% The Authority may issue bonds or use any other source of funds available to Authority to pay for the Phase II Pump Project. Payment for the Phase II Pump Project shall be included in each Customer's Monthly Charge. Y _..COPY The pumps, appurtenances, and structural improvements installe s result of the Phase II Pump Project shall become part of the Project." MULTIPLE COUNTERPARTS Circulation of counterparts of this Fourth Amendment of Agreements among Customers to obtain the signatures of all Customers on the same copies hereof would be inconvenient and result in delay. Therefore, this Fourth Amendment of Agreements has been prepared in multiple copies with two copies being prepared for signature on behalf of Authority, on the one hand, and on behalf of each Customer, alone, on the other hand. When all copies have been signed on behalf of Authority and each of the copies prepared for the signature of each Customer has been signed by such Customer, Authority shall give written notice of such fact to all Customers and this Fourth Amendment of Agreements shall thereupon become effective. Authority shall retain possession of one copy of this Fourth Amendment of Agreement executed by it on the one hand and each Customer on the other hand. Each Customer shall receive possession of one copy executed by Authority on the one hand and by it on the other hand. This Fourth Amendment of Agreements, when it becomes effective, shall be binding on Authority and all Customers and subject to enforcement by any party against any other. IN WITNESS WHEREOF, the parties have caused this amendment to be duly executed, intending to be bound thereby. BRAZOS RIVER AUTHORITY BY Date Phil Ford, General Manager/CEO ATTEST: CITY OF GEORGETOWN BY Date Mayor ATTEST: CITY O OUND ROCK BYI7 Mayor ATTEST: Striku • ATTEST: COPY Date t (.9.10 JONAH WATER SPECIAL UTILITY DISTRICT BY Date President ATTEST: BRUSHY CREEK MUNICIPAL UTILITY DISTRICT BY Date President CHISHOLM TRAIL SPECIAL UTILITY DISTRICT BY Date President ATTEST: COPY COPY GENERAL CERTIFICATE OF ROUND ROCK THE STATE OF TEXAS COUNTIES OF WILLIAMSON AND TRAVIS CITY OF ROUND ROCK We, the undersigned City Manager and City Secretary of the City of Round Rock, Texas (the "Participant") hereby certify as follows: 1. That this certificate is executed for the benefit of the Attorney General of the State of Texas and the prospective owners of the proposed Brazos River Authority Contract Revenue Refunding Bonds, Series 2010 (Williamson County Regional Raw Water Line Project) and Brazos River Authority Contract Revenue Bonds, Series 2010 (Williamson County Regional Raw Water Line Project) each dated , 2010 (collectively, the "Bonds"), authorized by a resolution adopted by the Board of Directors of the Brazos River Authority (the "Authority") on July 26, 2010 (the "Bond Resolution"). 2. That said Participant is a duly incorporated Home Rule City, operating and existing under the Constitution and laws of the State of Texas and the duly adopted Home Rule Charter of said Participant, which Charter has not been changed or amended since the passage of the ordinance authorizing the most recently issued Series of outstanding obligations of the Participant which have been approved by the Attorney General of Texas. 3. That the statements and information set forth in the Official Statement pertaining to the Participant and the Bonds, and particularly the Participant's operating statements, debt service re- quirements, revenues, taxable values, rates for water and sewer services (which rates have been set by official action of the Participant and are now in effect), and other information set forth therein are true and correct in all material respects. 4. That the Project Agreements (as defined in the Bond Resolution), between the Authority and the Participant, have been duly authorized by the Participant and properly executed by duly authorized officials of the Participant. 5. That the Project Agreements, between the Authority and the Participant, are still in full force and effect, have not been amended or rescinded, there is no litigation pending relating to the Project Agreements or the authority of the Participant to enter into the Project Agreements and no default exists in connection therewith. [The balance of this page is intentionally left blank.] ft- (OA -0°(-tout SIGNED ww LcN 0 r?AN NN Rbtiu,l.- uQudx City Secretary CITY OF ROUND ROCK COPY COPY CLOSING CERTIFICATE THE STATE OF TEXAS COUNTIES OF WILLIAMSON AND TRAVIS CITY OF ROUND ROCK We, the undersigned City Manager and City Secretary of the City of Round Rock, Texas (the "Participant") hereby certify as follows: 1. That this certificate is executed for the benefit of the Attorney General of the State of Texas and the prospective owners of the proposed Brazos River Authority Contract Revenue Refunding Bonds, Series 2010 (Williamson County Regional Raw Water Line Project) and Brazos River Authority Contract Revenue Bonds, Series 2010 (Williamson County Regional Raw Water Line Project) each dated , 2010 (collectively, the "Bonds"). 2. That capitalized terms used herein shall have the meanings set forth in the Bond Purchase Agreement, dated , 2010, by and among the Brazos River Authority and Stephens Inc., Raymond James & Associates, Inc., Cabrera Capital Markets, Inc. and Fidelity Capital Markets Services (the "Agreement"). 3. That (i) the Participant has not received notice of any litigation, nor to our knowledge, is any litigation pending or threatened, in any court to restrain or enjoin the issuance or delivery of the Bonds, the establishment of the rates, fees and other charges relating to the Project (including the Participant's Monthly Charges) or the other authorized purposes of the Participant, the lien on and pledge of the Net Revenues pledged to the payment of the principal of and interest on the Bonds, or the pledge thereof, or in any way contesting or affecting the validity of the Bonds, the Bond Resolution, the Contracts, the Participant's Resolution, or the Agreement, or contesting the authority of the Issuer to issue the Bonds, or contesting the authorization of the Bonds, the Bond Resolution, the Agreement, the Contracts, or the Participant's Resolution, or contesting in any way the accuracy, completeness, or fairness of the Preliminary Official Statement or the Official Statement, or that would otherwise adversely affect in a material manner the operations or the financial condition of the Participant; (ii) to the best of our knowledge, no event affecting the Participant has occurred since the date of the Official Statement which should be disclosed in the Official Statement for the purpose for which it is to be used or which it is necessary to disclose therein in order to make the statements and information therein not misleading in any material respect; (iii) the representations and warranties of the Participant contained in any certificate and document delivered by the Participant pursuant to the provisions of the Agreement, are true and correct on and as of the date of the Closing as though such representations and warranties were made on and as of the date of the Closing; (iv) the Contracts, together with all amendments thereto, have been duly approved, executed and delivered by the Participant and, with respect to the Participant, the Contracts and the obligations of the Participant thereunder (including the obligation to provide certain information in accordance with the Rule) remain in full force and effect and have not been rescinded; (v) during the last five years, the Participant has complied in all material respects with its continuing disclosure agreements, if any, pursuant to the Rule, except as otherwise described in the Official Statement; (vi) all agreements or conditions to be performed or complied with by the Participant under the Agreement to effect delivery of the Bonds on or prior to the date of Closing have been performed or complied with; and (vii) there has not been any materially adverse change in the operations or financial condition of the Participant since the date of the Official Statement. R-�o-U-fit-lam COPY SIGNED this /jai kfaIrtiAefi VP ccerpreva City Secretary CITY OF ROUND ROCK COPY CERTIFICATE FOR ORDINANCE THE STATE OF TEXAS COUNTIES OF WILLIAMSON AND TRAVIS CITY OF ROUND ROCK We, the undersigned officers of said City, hereby certify as follows: fit. r 1. The City Council of said City convened in MEETING ON THE tit DAY OF MaY M 10- / , 2010, at the designated meeting place, and the roll was called of the duly constituted officers and members of said City Council, to wit: Alan McGraw, Mayor Rufus Honeycutt, Place 1 George White, Place 2 Joe Clifford, Place 3 Carlos T. Salinas, Mayor Pro -Tem, Place 4 John S. Moman, Place 5 Kris Whitfield, Place 6 Sara Whits, City Secretary '',, 'Raz_ a and all of said persons were present, except the following absentees: Jt tALi I , Rz_, thus constituting a quorum. Whereupon, among other business, the following was transacted at said Meeting: a written ORDINANCE REGARDING AGREEMENTS PERTAINING TO WILLIAMSON COUNTY REGIONAL RAW WATER LINE was duly introduced for the consideration of said City Council and read in full. It was then duly moved and seconded that said Ordinance be passed; and, after due discussion, said motion carrying with it the passage of said Ordinance, prevailed and carried with all members present voting "aye" except the following: NOES: None. ABSTAIN: None. 2. That a true, full and correct copy of the aforesaid Ordinance passed at the Meeting described in the above and foregoing paragraph is attached to and follows this Certificate; that said Ordinance has been duly recorded in said City Council's minutes of said Meeting; that the above and foregoing paragraph is a true, full and correct excerpt from said City Council's minutes of said Meeting pertaining to the passage of said Ordinance; that the persons named in the above and foregoing paragraph are the duly chosen, qualified and acting officers and members of said City Council as indicated therein; that each of the officers and members of said City Council was duly and sufficiently notified officially and personally, in advance, of the time, place and purpose of the aforesaid Meeting, and that said Ordinance would be introduced and considered for passage at said Meeting, and each of said officers and members consented, in advance, to the holding of said Meeting for such purpose, and that said Meeting was open to the public and public notice of the time, place and purpose of said meeting was given, all as required by the Texas Government Code, Chapter 551. Q -Io - OD4- SIGNED AND SEALED the day of jilt!! y!2010. City Secretary (SEAL) COPY COPY ORDINANCE REGARDING AGREEMENTS PERTAINING TO WILLIAMSON COUNTY REGIONAL RAW WATER LINE THE STATE OF TEXAS CITY OF ROUND ROCK WHEREAS, Brazos River Authority (the "Authority") is an agency and political subdivision of the State of Texas, duly created and lawfully operating under Chapter 8502, Texas Special District Local Laws Code, as amended (the "Authority Act"), all pursuant to and in furtherance of the purposes of Article XVI, Section 59 of the Constitution of Texas; and WHEREAS, pursuant to the Authority Act, and other applicable laws, the Authority and other entities are authorized to enter into contractual agreements regarding the public purposes for which the Authority was created; and WHEREAS, amongst its authorized purposes, the Authority is authorized to store water in and to divert water from Lake Georgetown and Lake Stillhouse Hollow; and WHEREAS, pursuant to separate and individual contracts heretofore executed between the Authority, on one part, and the City of Georgetown ("Georgetown"), the City of Round Rock ("Round Rock"), Jonah Water Special Utility District (formerly Jonah Water Supply Corporation)("Jonah"), Brushy Creek Municipal Utility District of Williamson County, Texas ("Brushy Creek") and Chisholm Trail Special Utility District ("Chisholm Trail")(collectively, Georgetown, Round Rock, Jonah, Brushy Creek and Chisholm Trail are herein referred to as the "Participants"), individually on their part, the Authority has contracted to make available to such parties water from Lake Stillhouse Hollow (which contracts are defined in the Base Agreement (hereinafter defined) as the "Stillhouse Supply Agreements" and in the Brushy Creek Agreement (as hereinafter defined) and Chisholm Trail Agreement (as hereinafter defined) as the "Supply Agreements"); and WHEREAS, the Participants are so located that it became desirable from the standpoint of cost that each should divert the surface water which each needs for municipal supply purposes from Lake Georgetown or points between Lake Stillhouse Hollow and Lake Georgetown, rather than from Lake Stillhouse Hollow; and WHEREAS, the Authority, Georgetown, Round Rock and Jonah entered into the "Williamson County Regional Raw Water Line Agreement" (the "Base Agreement"), dated as of June 30, 1986, for the purpose of providing for the Authority to design, construct and operate facilities for transporting water from Lake Stillhouse Hollow committed to Georgetown, Round Rock and Jonah to Lake Georgetown (the "Project") for diversion by them for municipal purposes; and WHEREAS, subsequent to execution of the Base Agreement, the Authority, Georgetown, Round Rock and Jonah entered into "Amendment No. 1 to Williamson County Regional Raw Water Line Agreement" ("Amendment No. 1"), dated as of January 9, 1997 and "Second Amendment to Williamson County Regional Raw Water Line Agreement" ("Amendment No. 2"), dated as of December 22, 1998; and WHEREAS, Section 15 of the Base Agreement provides that the Authority may provide service from the Project to parties other than Georgetown, Round Rock and Jonah, provided that certain conditions are met; and COPY WHEREAS, such conditions having been met, the Authority entered into separate agreements with Brushy Creek called the "Participation Agreement with Respect to Williamson County Raw Water Line" ("Brushy Creek Agreement"), dated as of October 1, 1998 and subsequently with Chisholm Trail called the "Chisholm Trail Participation Agreement with Respect to Williamson County Raw Water Line" ("Chisholm Trail Agreement"), dated as of March 15, 1999, respectively; and WHEREAS, upon determining that the Texas Water Development Board would agree to pay for and acquire an undivided interest in the Project to be held for later acquisition by Authority as usage of Project increased, thus reducing the interim costs to the Participants pending their full need for the transportation capacity of the Project, the Authority and the Participants entered into the "Supplemental Agreement Respecting Williamson County Raw Water Line" ("Supplemental Agreement"), dated as of May 20, 1999; and WHEREAS, in order to accommodate the differences in the timing of water transportation needs and associated costs of the Project of the Participants, Authority and the Participants entered into the "Amendment of Agreements Respecting Construction and Operation of Williamson County Raw Water Line" ("Amendment of Multiple Agreements"), dated as of April 17, 2000; and WHEREAS, in order to avoid ambiguity in the Base Agreement, Brushy Creek Agreement and Chisholm Trail Agreement due to the changes in the Stillhouse Supply Agreements and Supply Agreements, the Authority entered into separate agreements with the Participants called the "Third Amendment of Agreements Among Customers" ("Amendment No. 3") to modify the definition of "Stillhouse Supply Agreements" as defined in the Base Agreement and modified in Amendment No. 2, and "Supply Agreements" as defined in the Brushy Creek Agreement and Chisholm Trail Agreement; and WHEREAS, collectively, the Base Agreement, Amendment No. 1, Amendment No. 2, Brushy Creek Agreement, Chisholm Trail Agreement, Supplemental Agreement, Amendment of Multiple Agreements and Amendment No. 3 are referred to as the "Project Agreements"; and WHEREAS, additional pumping capacity at the intake structure of the Project is now required to meet the raw water demands of the Participants, and the Participants have requested the Authority to engineer, design, and construct an improvement project (the "Phase II Pump Project") to install larger pumps in order to meet Participants' demands; and WHEREAS, the Authority and the Participants desire to amend the Base Agreement, Brushy Creek Agreement and Chisholm Trail Agreement by entering into a "Fourth Amendment of Agreements Among Customers" ("Amendment No. 4") to define and provide for payment of the Phase II Pump Project; and WHEREAS, in anticipation of the issuance of bonds by the Authority to finance costs of the improvements and extensions of the Project relating to the Phase II Pump Project pursuant to the Project Agreements and Amendment No. 4, and in order to clearly establish, authorize, ratify and confirm the contractual arrangements entered into by the Authority and the Participants and all actions taken by the parties since 1986 in reliance on the Project Agreements, it is deemed to be appropriate to adopt this ordinance. THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ROUND ROCK: Section 1. That the City Council of Round Rock hereby incorporates the recitals set forth in the preamble hereto as if set forth in full at this place and further finds and determines that said recitals are true and correct. COPY Section 2. That, with respect to the Project Agreements to which Round Rock is a party, the actions of the City Council in authorizing the execution thereof, the authorization of, and the execution of such Project Agreements by officers, officials and employees of Round Rock and all actions taken in reliance upon and pursuant to such Project Agreements are hereby authorized, ratified and confirmed in all respects concurrently with the adoption of this ordinance. Section 3. That the Mayor, City Manager and City Secretary of Round Rock are hereby authorized and directed to execute, deliver and take all actions necessary and appropriate relating to Amendment No. 4 in substantially the form and content attached hereto, with such modifications as may be deemed appropriate by the Mayor or City Manager. Section 4. That the officers of the City Council, the City Manager and the administrative staff of Round Rock are hereby authorized and directed to take any and all actions necessary and appropriate with respect to construction, acquisition, improvement and extension of the Project according to the terms and provisions set forth in such Project Agreements and Amendment No. 4. Section 5. That this ordinance shall take effect immediately upon passage and all ordinances, orders and resolutions in conflict herewith are repealed to the extent of any such conflict.