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R-11-06-09-10F2 - 6/9/2011RESOLUTION NO. R -11-06-09-10F2 WHEREAS, the City of Round Rock ("City") has previously entered into a Master Contract for the Financing, Construction, Ownership, and Operation of the Brushy Creek Regional Wastewater System ("Master Contract") with the Cities of Austin and Cedar Park, and WHEREAS, the City of Round Rock and the Cities of Austin and Cedar Park amended and restated the terms of conditions of the Original Master Contract in light of the addition of the City of Leander as an additional owner of the Brushy Creek Regional Wastewater System, and WHEREAS, the City now desires to enter into a First Amendment to the Amended and Restated Master Contract to amend and clarify the duties and responsibilities of the Operations Committee and to amend the provisions regarding the Capital Expense Budget, 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 First Amendment to the Amended and Restated Master Contract for the Financing, Construction, Ownership, and Operation of the Brushy Creek Regional Wastewater System, a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 9th day of June, 2011. ATTEST: SARA L. WHITE, City Secretary O:\wdox\SCCInts\0112\ 1104 \MUNICIPAL \ 00223807.DOC/rmc ni ALAN MCGRAW, Mayor City of Round Rock, Texas EXHIBIT „A„ FIRST AMENDMENT TO THE AMENDED AND RESTATED MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP, AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM THIS FIRST AMENDMENT TO THE AMENDED AND RESTATED MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM (the "First Amendment") is dated and entered into as of the day of , 2011, by and among the City of Austin, Texas ("Austin"), City of Cedar Park, Texas ("Cedar Park"), the City of Leander, Texas ("Leander"), and the City of Round Rock, Texas ("Round Rock") all home -rule municipalities and political subdivisions of the State (individually, the "City"; collectively, the "Cities"). RECITALS WHEREAS, on the 4th day of June, 2010 the Cities entered into that one certain Amended and Restated Master Contract for the Financing, Construction, Ownership, and Operation of the Brushy Creek Regional Wastewater System (the "Contract"); and WHEREAS, the Cities wish to amend and clarify the duties and responsibilities of the Operations Committee; and WHEREAS, the Cities wish to amend the provisions regarding the Capital Expense Budget; NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the sufficiency of which are hereby conclusively acknowledged, and subject to the terms and conditions hereinafter set forth, the Cities mutually agree as follows: ARTICLE 1 DEFINITIONS All terms used herein shall have the meanings assigned to them in the Contract, unless the context clearly requires otherwise. ARTICLE II Section 4.6 of the Contract is hereby amended to read as follows: Section 4.6 Operations Committee. The Cities hereby create an Operations Committee to be composed of the following members: Agmt_BCRWWS-1stAmend to Restated Master Contract cc6-9-11 Agmt_BCRWWS-IstAmend to Restated Master Contract cc6-9-11 (a) Two representatives appointed by Cedar Park; (b) Two representatives appointed by Round Rock; (c) Two representatives appointed by Austin; and (d) Two representatives appointed by Leander. The appointed representatives of the Operations Committee shall be staff members of the respective City and shall not be members of the Cities' governing bodies. The Operations Committee shall advise and make recommendations to the governing bodies of the Cities. The Operations Committee shall not have any rule-making or quasi-judicial power. Each City shall have one vote for decision-making purposes on the Operations Committee. The Operations Committee shall represent the individual and collective interests of the Cities and shall consult with and advise the Cities, through their respective City Managers or other designated representative. The City of Round Rock shall select the Chair of the Operations Committee from its representatives who will be responsible for calling and coordinating Operations Committee meetings, drafting and circulating meeting agendas and circulating other documents to Committee members necessary for the proper functioning of the Committee. The City Manager or designee of each City shall appoint appropriate city staff members as the City's representatives (and alternate representatives to serve in the absence of the City's representatives) to the Operations Committee promptly after execution of this Contract, and shall immediately notify the other Parties of such appointment. Each representative (or alternate representative) shall serve as a member of the Operations Committee at the will of the City Manager or designee who appointed such representative. Upon the death, resignation, or revocation of the power of a City's representative (or alternate representative), the City Manager or designee of such City shall promptly appoint a new representative (or alternate representative) as a member of the Operations Committee. ARTICLE III Section 4.9 of the Contract is hereby amended to read as follows: Section 4.9 Meetings of the Operations Committee. The Operations Committee will hold regular monthly meetings at times and places to be selected by the members. In addition, any City may call a special meeting to be held at any time after they have given at least three (3) business days' notice to all of the other members of the Operations Committee. Any member may waive notice of or attendance at any meeting of the Operations Committee. At a meeting, the Operations Committee will transact any business that may properly be brought before the meeting. Any City may place an issue for discussion on the Operations Committee's agenda. The Operations Committee may authorize action or may delay action regarding the agenda item regardless if a City's member does not attend or send an alternate representative. Since the Operations Committee is advisory only and does not have rule-making or quasi-judicial power, it is not subject to the requirements of the Open Meetings Act. 2 ARTICLE IV Section 9.1 of the Contract is hereby amended to read as follows: Section 9.1 Operation and Maintenance Budget. Not less than one hundred twenty (120) days before commencement of each Fiscal Year, the Operator shall furnish to the Cities a detailed estimate of Operations and Maintenance Expenses to be incurred in the next ensuing Fiscal Year which it deems properly includable in the Operations and Maintenance Budget. Not less than ninety (90) days prior to each Fiscal Year, the Cities shall approve the Operation and Maintenance Budget for that Fiscal Year. The Cities shall use diligent efforts so that Operation and Maintenance Expenses incurred by, and ultimately paid by, the Cities are reasonable and justified. ARTICLE V Section 9.2 of the Contract is hereby amended to read as follows: Section 9.2 Monthly Flow Charges. Each City shall be required to pay a Monthly Flow Charge for use in meeting that Month's portion of the Operation and Maintenance Budget. For each subsequent Operation and Maintenance Budget adopted after the availability of the annual report discussed in Section 9.3, below, that is for a Fiscal Year that follows a Fiscal Year during which Monthly Flow Charges from a City have been payable hereunder, the Monthly Flow Charge amount estimated for the subsequent Fiscal Year shall be adjusted upward or downward, as appropriate, to account for any difference between the actual Operation and Maintenance Expenses and those budgeted and estimated for the previously reported period. The Monthly Flow Charge for each City for each Operation and Maintenance Budget shall be 1/12th (or in the case of the initial Fiscal Year, the fraction obtained by dividing 1 by the number of complete Months between the Effective Date and September 30, 2010) of the amount calculated by multiplying the Annual Flow for each City during the twelve (12) month period ending on April 30 preceding the beginning of the Fiscal Year for which the calculation is being made, expressed in thousands of gallons, by the quotient obtained by dividing the Operation and Maintenance Budget for the period for which the calculation is being made, expressed in dollars, by the sum of all of the Cities' Annual Flows into System, also expressed in thousands of gallons during the twelve (12) month period ending on such April 30. Each City's Monthly Flow Charge shall be rounded to the hundredth's place behind the decimal. For the period of time that Leander only maintains an ownership interest in the Collection System and until an Expansion of the Treatment Facilities is completed in which Leander participates, Leander's Monthly Flow Charge shall be calculated based only on that portion of the Operations and Maintenance Budget that is attributable to Operations and Maintenance Expenses for the Collection System. During the aforesaid period of time, Leander's portion of the Operations and Maintenance Budget that is attributable to the Treatment Facilities will be billed to and paid by Leander to Round Rock in accordance with the terms of the Wastewater Service Agreement Between the City of Round Rock and the City of Leander. 3 ARTICLE VI Section 9.4 of the Contract is hereby amended to read as follows: Section 9.4 Capital Expense Budget and Capital Improvements. (a) Capital Expense Budget. Not less than ninety (90) days before commencement of each Fiscal Year, the Operations Committee shall cause a proposed Capital Expense Budget to be submitted to the City Managers of the Cities. The City Managers shall include the proposed Capital Expense Budget in the respective Cities' budgets for approval by the respective City Councils. Capital Expenses shall be allocated among and borne by the Cities in proportion to each City's respective reserved capacity in the System Component that is the subject of the Capital Improvement as listed in Exhibit A. The Cities shall determine the schedule for the funding and commencement of Capital Improvement projects identified in the Capital Expense Budget prior to the commencement of each fiscal year. The Cities agree that Round Rock shall manage and administer the Capital Expense Budget on behalf of all Cities. Round Rock shall set up an interest bearing Capital Expense Budget Account to receive funds from each City equal to its respective allocated share of the Capital Improvement projects as detailed below. Round Rock also agrees to make payments from the Capital Expense Budget Account for Capital Improvement expenses approved by the Operations Committee. Round Rock shall make detailed monthly reports to the Operations Committee regarding all activity in the Capital Expense Budget Account. Any interest from the Capital Budget Account remaining at the end of the Fiscal Year shall be allocated to each City based upon its total monetary contribution to the Capital budget Account. (b) Capital Improvements. The Cities agree that the Operations Committee will have primary responsibility to manage, oversee, and administer Capital Improvement projects, In some cases, but with unanimous approval, the Operations Committee may determine that it is desirable for one of the Cities to take a lead role in managing a Capital Improvement project on behalf of the Operations Committee. The Operations Committee will review all bids received for Capital Improvement projects. The recommendation of which bidder will receive the award of a Capital Improvement construction contract shall require the unanimous approval of the Operations Committee. Prior to a contract being executed for a Capital Improvement project, the three Cities agree that they will pay their respective allocated shares of the contract price to Round Rock to be deposited into the Capital Expense Budget Account. In the event that the Operations Committee approves change orders or quantity adjustments to the contract price, the three Cities agree to promptly pay their respective allocated shares of the increase in the contract price to Round Rock for deposit into the Capital Expense Budget. All requests for payment from the contractor, change orders, and quantity adjustments for a Capital Improvement project shall be subject to the review and approval of the Operations Committee. Upon such approval, Round Rock agrees to promptly pay such invoices out of the Capital Expense Budget. 4 ARTICLE VII MISCELLANEOUS Section 7.1 To the extent necessary to effect the terms and provisions of this First Amendment, the Contract is hereby amended and modified. In all other respects, the aforesaid Contract is hereby ratified and confirmed. Section 7.2 This First Amendment may be executed in counterparts, each of which shall be an original and all of which together shall constitute but one and the same instrument. IN WITNESS WHEREOF, the Cities hereto acting under authority of their respective governing bodies, including authority granted by their respective governing bodies in approving the Contract, have caused this First Amendment to be duly executed as of the day and year first above written. CITY OF AUSTIN, TEXAS By: Rudy Garza, Assistant City Manager 6 CITY OF CEDAR PARK, TEXAS By: Bob Lemon, Mayor Attest: By: LeAnn Quinn, City Secretary Attest: By: Sara White, City Secretary CITY OF ROUND ROCK, TEXAS By: Alan McGraw, Mayor 8 ATTEST: By: Debbie Haile, City Secretary 9 CITY OF LEANDER By: John Cowman, Mayor ROUND ROCK, TEXAS PURPOSE. PASSION. PROSPERITY Agenda Item No. 10F2. City Council Agenda Summary Sheet Agenda Caption: Consider a resolution authorizing the Mayor to execute the First Amendment to the Amended and Restated Master Contract for the Financing, Construction, Ownership, and Operation of the Brushy Creek Regional Wastewater System. Meeting Date: June 9, 2011 Department: Infrastructure Development and Construction Management Staff Person making presentation: Michael Thane, P.E. Director of Infrastructure Management Item Summary: On December 8, 2009, the Cities of Round Rock, Cedar Park, and Austin entered into a Master Contract for the Financing, Construction, Ownership, and Operation of the Brushy Creek Regional Wastewater System (BCRWWS). The Master Contract provided for the terms and conditions by which the cities would jointly own and operate the BCRWWS following the purchase of the system from the Lower Colorado River Authority. On June 4, 2010, Round Rock, Cedar Park, and Austin amended and restated the terms and conditions of the Original Master Contract in light of the addition of the City of Leander as an additional owner of the BCRWWS. This first Amendment is to amend and clarify the duties and responsibilities of the Operations Committee, which is comprised of staff members from each of the four partnering cities. The amendment includes the preparation of an annual Capital Expense Budget for anticipated capital improvement projects for the BCRWWS. Capital expenses shall be allocated among and borne by the Cities in proportion to each City's respective reserved capacity in the system component that is subject to the Capital Improvement. Round Rock will manage and administer the Capital Expense Budget on behalf of the Cities and make payments from this account for Capital Improvement expenses approved by the Operations Committee. The Operations Committee will have primary responsibility to manage, oversee, and administer Capital Improvement projects, and will determine which City will take a lead role in the managing the Capital Improvement project on behalf of the Operations Committee. Strategic Plan Relevance: Goal 7.0 — Develop an environmentally friendly, sustainable community. Goal 28.0 — Protect public health and protect the environment through proper waste disposal. Cost: Source of Funds: Date of Public Hearing (if required): N/A Recommended Action: Approval EXECUTED DOCUMENTS FOLLOW ORIGINAL FIRST AMENDMENT TO THE AMENDED AND RESTATED MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP, AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM THIS FIRST AMENDMENT TO THE AMENDED AND RESTATED MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION, OWNERSHIP AND OPERATION OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM (the "First Amendment") is dated and entered into as of the day of 1 -Wit, , 2011, by and among the City of Austin, Texas ("Austin"), City of Cedar Par , TJLCexas ("Cedar Park"), the City of Leander, Texas ("Leander"), and the City of Round Rock, Texas ("Round Rock") all home -rule municipalities and political subdivisions of the State (individually, the "City"; collectively, the "Cities"). RECITALS WHEREAS, on the 4th day of June, 2010 the Cities entered into that one certain Amended and Restated Master Contract for the Financing, Construction, Ownership, and Operation of the Brushy Creek Regional Wastewater System (the "Contract"); and WHEREAS, the Cities wish to amend and clarify the duties and responsibilities of the Operations Committee; and WHEREAS, the Cities wish to amend the provisions regarding the Capital Expense Budget; NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the sufficiency of which are hereby conclusively acknowledged, and subject to the terms and conditions hereinafter set forth, the Cities mutually agree as follows: ARTICLE 1 DEFINITIONS All terms used herein shall have the meanings assigned to them in the Contract, unless the context clearly requires otherwise. ARTICLE II Section 4.6 of the Contract is hereby amended to read as follows: Section 4.6 Operations Committee. The Cities hereby create an Operations Committee to be composed of the following members: cag- `I, -U- -01- 1Df-2.. (a) Two representatives appointed by Cedar Park; (b) Two representatives appointed by Round Rock; (c) Two representatives appointed by Austin; and (d) Two representatives appointed by Leander. The appointed representatives of the Operations Committee shall be staff members of the respective City and shall not be members of the Cities' governing bodies. The Operations Committee shall advise and make recommendations to the governing bodies of the Cities. The Operations Committee shall not have any rule-making or quasi-judicial power. Each City shall have one vote for decision-making purposes on the Operations Committee. The Operations Committee shall represent the individual and collective interests of the Cities and shall consult with and advise the Cities, through their respective City Managers or other designated representative. The City of Round Rock shall select the Chair of the Operations Committee from its representatives who will be responsible for calling and coordinating Operations Committee meetings, drafting and circulating meeting agendas and circulating other documents to Committee members necessary for the proper functioning of the Committee. The City Manager or designee of each City shall appoint appropriate city staff members as the City's representatives (and alternate representatives to serve in the absence of the City's representatives) to the Operations Committee promptly after execution of this Contract, and shall immediately notify the other Parties of such appointment. Each representative (or alternate representative) shall serve as a member of the Operations Committee at the will of the City Manager or designee who appointed such representative. Upon the death, resignation, or revocation of the power of a City's representative (or alternate representative), the City Manager or designee of such City shall promptly appoint a new representative (or alternate representative) as a member of the Operations Committee. ARTICLE III Section 4.9 of the Contract is hereby amended to read as follows: Section 4.9 Meetings of the Operations Committee. The Operations Committee will hold regular monthly meetings at times and places to be selected by the members. In addition, any City may call a special meeting to be held at any time after they have given at least three (3) business days' notice to all of the other members of the Operations Committee. Any member may waive notice of or attendance at any meeting of the Operations Committee. At a meeting, the Operations Committee will transact any business that may properly be brought before the meeting. Any City may place an issue for discussion on the Operations Committee's agenda. The Operations Committee may authorize action or may delay action regarding the agenda item regardless if a City's member does not attend or send an alternate representative. Since the Operations Committee is advisory only and does not have rule-making or quasi-judicial power, it is not subject to the requirements of the Open Meetings Act. 2 ARTICLE IV Section 9.1 of the Contract is hereby amended to read as follows: Section 9.1 Operation and Maintenance Budget. Not less than one hundred twenty (120) days before commencement of each Fiscal Year, the Operator shall furnish to the Cities a detailed estimate of Operations and Maintenance Expenses to be incurred in the next ensuing Fiscal Year which it deems properly includable in the Operations and Maintenance Budget. Not less than ninety (90) days prior to each Fiscal Year, the Cities shall approve the Operation and Maintenance Budget for that Fiscal Year. The Cities shall use diligent efforts so that Operation and Maintenance Expenses incurred by, and ultimately paid by, the Cities are reasonable and justified. ARTICLE V Section 9.2 of the Contract is hereby amended to read as follows: Section 9.2 Monthly Flow Charges. Each City shall be required to pay a Monthly Flow Charge for use in meeting that Month's portion of the Operation and Maintenance Budget. For each subsequent Operation and Maintenance Budget adopted after the availability of the annual report discussed in Section 9.3, below, that is for a Fiscal Year that follows a Fiscal Year during which Monthly Flow Charges from a City have been payable hereunder, the Monthly Flow Charge amount estimated for the subsequent Fiscal Year shall be adjusted upward or downward, as appropriate, to account for any difference between the actual Operation and Maintenance Expenses and those budgeted and estimated for the previously reported period. The Monthly Flow Charge for each City for each Operation and Maintenance Budget shall be 1/12th (or in the case of the initial Fiscal Year, the fraction obtained by dividing 1 by the number of complete Months between the Effective Date and September 30, 2010) of the amount calculated by multiplying the Annual Flow for each City during the twelve (12) month period ending on April 30 preceding the beginning of the Fiscal Year for which the calculation is being made, expressed in thousands of gallons, by the quotient obtained by dividing the Operation and Maintenance Budget for the period for which the calculation is being made, expressed in dollars, by the sum of all of the Cities' Annual Flows into System, also expressed in thousands of gallons during the twelve (12) month period ending on such April 30. Each City's Monthly Flow Charge shall be rounded to the hundredth's place behind the decimal. For the period of time that Leander only maintains an ownership interest in the Collection System and until an Expansion of the Treatment Facilities is completed in which Leander participates, Leander's Monthly Flow Charge shall be calculated based only on that portion of the Operations and Maintenance Budget that is attributable to Operations and Maintenance Expenses for the Collection System. During the aforesaid period of time, Leander's portion of the Operations and Maintenance Budget that is attributable to the Treatment Facilities will be billed to and paid by Leander to Round Rock in accordance with the terms of the Wastewater Service Agreement Between the City of Round Rock and the City of Leander. 3 ARTICLE VI Section 9.4 of the Contract is hereby amended to read as follows: Section 9.4 Capital Expense Budget and Capital Improvements. (a) Capital Expense Budget. Not less than ninety (90) days before commencement of each Fiscal Year, the Operations Committee shall cause a proposed Capital Expense Budget to be submitted to the City Managers of the Cities. The City Managers shall include the proposed Capital Expense Budget in the respective Cities' budgets for approval by the respective City Councils. Capital Expenses shall be allocated among and borne by the Cities in proportion to each City's respective reserved capacity in the System Component that is the subject of the Capital Improvement as listed in Exhibit A. The Cities shall determine the schedule for the funding and commencement of Capital Improvement projects identified in the Capital Expense Budget prior to the commencement of each fiscal year. The Cities agree that Round Rock shall manage and administer the Capital Expense Budget on behalf of all Cities. Round Rock shall set up an interest bearing Capital Expense Budget Account to receive funds from each City equal to its respective allocated share of the Capital Improvement projects as detailed below. Round Rock also agrees to make payments from the Capital Expense Budget Account for Capital Improvement expenses approved by the Operations Committee. Round Rock shall make detailed monthly reports to the Operations Committee regarding all activity in the Capital Expense Budget Account. Any interest from the Capital Budget Account remaining at the end of the Fiscal Year shall be allocated to each City based upon its total monetary contribution to the Capital budget Account. (b) Capital Improvements. The Cities agree that the Operations Committee will have primary responsibility to manage, oversee, and administer Capital Improvement projects, In some cases, but with unanimous approval, the Operations Committee may determine that it is desirable for one of the Cities to take a lead role in managing a Capital Improvement project on behalf of the Operations Committee. The Operations Committee will review all bids received for Capital Improvement projects. The recommendation of which bidder will receive the award of a Capital Improvement construction contract shall require the unanimous approval of the Operations Committee. Prior to a contract being executed for a Capital Improvement project, the three Cities agree that they will pay their respective allocated shares of the contract price to Round Rock to be deposited into the Capital Expense Budget Account. In the event that the Operations Committee approves change orders or quantity adjustments to the contract price, the three Cities agree to promptly pay their respective allocated shares of the increase in the contract price to Round Rock for deposit into the Capital Expense Budget. All requests for payment from the contractor, change orders, and quantity adjustments for a Capital Improvement project shall be subject to the review and approval of the Operations Committee. Upon such approval, Round Rock agrees to promptly pay such invoices out of the Capital Expense Budget. 4 ARTICLE VII MISCELLANEOUS Section 7.1 To the extent necessary to effect the terms and provisions of this First Amendment, the Contract is hereby amended and modified. In all other respects, the aforesaid Contract is hereby ratified and confirmed. Section 7.2 This First Amendment may be executed in counterparts, each of which shall be an original and all of which together shall constitute but one and the same instrument. IN WITNESS WHEREOF, the Cities hereto acting under authority of their respective governing bodies, including authority granted by their respective governing bodies in approving the Contract, have caused this First Amendment to be duly executed as of the day and year first above written. 5 CITY OF AUSTIN, TEXAS By: 6 Rudy Garza, stant City Manager CITY OF CEDAR PARK, TEXAS By: i � Bob Lemo , Mayor Attest: LeAnn Quinn, City Secretary 7 c Attest: By: Sara White, City Secretary CITY OF ROUND ROCK, TEXAS By: 8 Alan McGraw, Mayor ATTEST: By: Debbie Haile, City Secretary 9 CITY OF LEANDER