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R-11-08-25-9E2 - 8/25/2011RESOLUTION NO. R -11-08-25-9E2 WHEREAS, the City of Round Rock ("City") and Vista Oaks Municipal Utility District (the "District") desire to resolve their dispute regarding wastewater billing issues; and WHEREAS, the City and the District wish to enter into a Full and Final Settlement and Release Agreement in regard to this dispute, 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 Full and Final Settlement and Release Agreement with Vista Oaks Municipal Utility District, 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 25th day of August, 2011. ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: SARA L. WHITE, City Secretary 0:\wdox\SCC1nts\0112\1104\MUNICIPAL\00230273.00C/rmc FULL AND FINAL SETTLEMENT AND RELEASE AGREEMENT ARTICLE I. CONTRACTUAL RECITALS AND STATEMENT OF PURPOSE EXHIBIT „A„ WHEREAS, Vista Oaks Municipal Utility District, formerly known as Williamson County Municipal Utility District No. 9 (the "District"), has submitted one or more oral and/or written claims against the City of Round Rock (the "City"), alleging that the City has over -billed the District and/or the District has over -paid the City for wholesale wastewater services in the past because the City allegedly failed to accurately meter and deduct from the District's wastewater usage certain pass-through wastewater usage from City customers in the Mayfield Ranch development adjacent to the District (the "Claims"); and WHEREAS, City has denied, and continues to deny, all such allegations by the District; and WHEREAS, this Full and Final Settlement and Release Agreement (this "Agreement"), and the execution hereof does not, and is not intended to be construed as an admission of any fault or wrongdoing by or on behalf of City or District, all such claims having been expressly denied heretofore, and the parties continue to deny the same; and WHEREAS, all provisions of this Agreement are contractual in nature, and not mere recitals; and WHEREAS, the purpose of this Agreement is to set forth and embody a negotiated compromise, settlement, and release, as set forth herein. NOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, and the incorporation of the above Recitals, the parties hereto agree as follows: 215433.doc/jmr 420666-4 08/03/2011 1 ARTICLE II. PERSONS AND ENTITIES BOUND BY THIS AGREEMENT 1. District understands and agrees that by execution hereof, the terms of this Agreement are binding upon the District and upon all representatives, successors and assigns of District. 2. City understands and agrees that by execution hereof, the terms of this Agreement are binding upon City and upon all representatives, successors and assigns of City. 3. District represents and warrants that it has approved of all of the terms, conditions and covenants of this Agreement as evidenced by the duly authorized signature to this Agreement. 4. City represents and warrants that it has approved of all of the terms, conditions and covenants of this Agreement as evidenced by the duly authorized signature to this Agreement. ARTICLE III. NO OUTSTANDING CLAIMS 1. District warrants and represents that District has no awareness of the existence of any actual or potential claim, demand, suit, cause of action, charge or grievance possessed by District, which is not subject to and fully released by this Agreement, except for matters as may be expressly excluded in this Agreement, that arises from or relates to the Claims. 2. City warrants and represents that City has no awareness of the existence of any actual or potential claim, demand, suit, cause of action, charge or grievance possessed by City, which is not subject to and fully released by this Agreement, except for matters as may be expressly excluded in this Agreement, that arises from or relates to the Claims. 3. District warrants and represents that District has not assigned, authorized or transferred (in any way, whether directly or indirectly) any claims, demands, suits, causes of action, charges, or grievances of any kind or character, which District had or may have had prior to and including the Effective Date against City. District is unaware of any actual or potential claims, 420666-4 08/03/2011 2 demands, suits, causes of action, charges, or grievances of any kind or character against the City arising from or related to the Claims which are not subject to and released by this Agreement. City is unaware of any actual or potential claims, demands, suits, causes of action, charges, or grievances of any kind or character against the District arising from or related to the Claims which are not subject to and released by this Agreement. ARTICLE IV. CONSIDERATION 1. In consideration of the City's agreement (a) to issue a $98,536.36 credit to the District's wastewater billing account, which will be used to offset the District's future wastewater charges, the receipt and sufficiency of which are hereby acknowledged by District, and (b) to amend the Water and Wastewater Agreement dated the 22nd day of January, 1987 between the City, the District, and L&N Land Corp. to provide that the City will bill the District for wholesale wastewater service provided to the District using a conventional winter -average methodology (without an inflow and infiltration factor) based on the average water usage of District customers during the months of December, January, and February, and in consideration of the mutual agreements, conditions, representations, warranties, recitals, covenants and statements of intention contained herein, District hereby accepts the above -referenced credit and contract amendment in full settlement, compromise and release of all claims against the City arising from or related to the Claims, pursuant to this Agreement. ARTICLE V. MUTUAL RELEASE District and City hereby covenant, agree and consent to the following: 1. The intent of the parties hereto is that each person or entity executing this Agreement shall, by reason of such execution, be entirely free of any and all actual or potential claims, suits, 420666-4 08/03/2011 3 demands, causes of action, charges or grievances of any kind or character, regardless of the nature or extent of the same, arising from or related to the Claims. 2. District hereby fully and finally RELEASES, ACQUITS, AND FOREVER DISCHARGES the City from, and District further covenants not to assert in anymanner against the City, any and all actual or potential claims held by District against City arising from or related to the Claims, and/or any suits, demands, causes of action, charges or grievances of any kind or character whatsoever, heretofore or hereafter accruing for or because of any matter done, omitted or suffered to be done by any such party hereto prior to and including the date hereof, arising from or related to the Claims. 3. City hereby fully and finally RELEASES, ACQUITS, AND FOREVER DISCHARGES District from, and City further covenants not to assert in any manner against the District, any and all actual or potential claims held by City against District arising from or related to the Claims, and/or any suits, demands, causes of action, charges or grievances of any kind or character whatsoever, heretofore or hereafter accruing for or because of any matter done, omitted or suffered to be done by any such party hereto prior to and including the date hereof, arising from or related to the Claims. ARTICLE VI. EXPRESS DENIAL OF LIABILITIES District and City understand and agree that no payment made nor released pursuant to the terms of this Agreement, or other consideration given shall be intended to be, nor shall be construed to be, an admission of liability and any and all such liability is expressly denied. ARTICLE VII. SEVERABILITY 420666-4 08/03/2011 4 If any one or more of the provisions of this Agreement, or the application of any such provision to any person,entity, or set of circumstances, shall be determined to be invalid, unlawful, or unenforceable to any extent at any time, the remainder of this Agreement, and the application of such provision to persons, entities, or circumstances other than those as to which it is determined to be invalid, unlawful, or unenforceable, shall not be affected, and shall continue to be enforceable to the fullest extent permitted by law. Any invalid, unlawful, or unenforceable provision hereof shall be reformed to the extent necessary to render it valid, lawful, and enforceable in a manner consistent with the intentions of the parties hereto regarding such provision. ARTICLE VIII. ENTIRE AGREEMENT OF THE PARTIES This Agreement constitutes the entire agreement and understanding of District and City and/or their representatives, with respect to the transactions contemplated hereby, and supersedes all prior agreements, arrangements, and understandings related to the subject matter hereof. No representations, warranties, recitals, covenants, or statements of intention have been made by, or on behalf of, any party hereto which is not embodied in this Agreement or in connection with the transactions contemplated hereby, and no party hereto shall be bound by, or liable for, any alleged representation, warranty, recital, covenant, or statement of intention not so set forth. All the terms, provisions, conditions, covenants, warranties, recitals, and statements of intention in this Agreement shall be binding upon, inure to the benefit of, and be enforceable by District and City, and/or their representatives. ARTICLE IX GOVERNING LAW This Agreement shall be construed in accordance with the governing laws of the State of Texas. The obligations of the parties are performable, and venue for any legal action arising out of 420666-4 08/03/2011 5 this Agreement shall lie in Williamson County, Texas. ARTICLE X FULL UNDERSTANDING AND AGREEMENT EACH RELEASING PERSON, ENTITY, OR PARTY WARRANTS THAT SUCH -PARTY HAS READ THIS AGREEMENT AND FULLY UNDERSTANDS IT. EACH PARTY WARRANTS THAT SUCH PARTY IS OF LEGAL COMPETENCE OR LEGAL CAPACITY, AND IS FREE, WITHOUT DURESS, TO EXECUTE THIS AGREEMENT, THAT EACH OF THE UNDERSIGNED HAS THE AUTHORITY TO EXECUTE THIS AGREEMENT, AND THAT SUCH PARTY HAS DONE SO OF FREE WILL AND ACCORD, WITHOUT RELIANCE ON ANY REPRESENTATION OF ANY KIND OR CHARACTER NOT EXPRESSLY SET FORTH HEREIN. ARTICLE XI EXECUTION AND EFFECTIVE DATE This Agreement may be signed in counterparts, and each counterpart shall constitute an original. The parties hereto have executed this Agreement on the dates set forth opposite their names, to be effective as of the last date of due execution. 420666-4 08/03/2011 6 CITY OF ROUND ROCK, TEXAS By: ALAN MCGRAW, Mayor Date: STATE OF TEXAS COUNTY OF On this day of , before me, the undersigned notary public, personally appeared Alan McGraw, known to me to be the person whose name is subscribed to the within instrument and acknowledged that he/she executed the same for the purposes therein contained. Notary Public, State of Texas 420666-4 08/03/2011 7 STATE OF TEXAS COUNTY OF § § VISTA OAKS MUNICIPAL UTILITY DISTRICT By: Printed Name: Title: Date: On this day of , , before me, the undersigned notary public, personally appeared , known to me to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same for the purposes therein contained. Notary Public, State of Texas 420666-4 08/03/2011 8 ROUND ROCK, TEXAS PURPOSE. PASSION. PROSPERITY Agenda Item No. 9E2. City Council Agenda Summary Sheet Consider a resolution authorizing the Mayor to execute the Full and Final Settlement and Agenda Caption: Release Agreement with Vista Oaks Municipal Utility District. Meeting Date: August 25, 2011 Department: Utilities and Environmental Services Staff Person making presentation: Michael Thane, P.E. Utilities Director Item Summary: Over the past few years, the City has experienced wastewater billing issues with the Vista Oaks Municipal Utility District (MUD). These issues are related to the way the MUD is being billed for their wastewater by the City. In accordance with the existing Water and Wastewater Agreement, the billing method was based on using data from three different wastewater flow meters. These meters historically, have proven to be inaccurate and/or unreliable. City staff and representatives from the MUD have had ongoing discussions regarding these issues and have come to agree on a resolution. These negotiations have also resulted in an agreement upon changing the way the MUD is billed wholesale wastewater by the City, and an amendment to the Water and Wastewater Agreement. This amendment should be addressed by City Council on the same date as this Full and Final Settlement and Release Agreement. Additionally, the City owes the MUD for unmetered wastewater from a section of the Mayfield Ranch subdivision, which entered the MUD's wastewater system without being metered. The City was not including this deduction from the MUD's monthly wastewater bill. This agreement reaches a full and final settlement of all these issues. Cost: $98,536.36 (credit to their wastewater account) Source of Funds: Utility Fund Date of Public Hearing (if required): N/A Recommended Action: Approval EXECUTED DOCUMENTS FOLLOW FULL AND FINAL SETTLEMENT AND RELEASE AGREEMENT ARTICLE I. CONTRACTUAL RECITALS AND STATEMENT OF PURPOSE WHEREAS, Vista Oaks Municipal Utility District, formerly known as Williamson County Municipal Utility District No. 9 (the "District"), has submitted one or more oral and/or written claims against the City of Round Rock (the "City"), alleging that the City has over -billed the District and/or the District has over -paid the City for wholesale wastewater services in the past because the City allegedly failed to accurately meter and deduct from the District's wastewater usage certain pass-through wastewater usage from City customers in the Mayfield Ranch development adjacent to the District (the "Claims"); and WHEREAS, City has denied, and continues to deny, all such allegations by the District; and WHEREAS, this Full and Final Settlement and Release Agreement (this "Agreement"), and the execution hereof does not, and is not intended to be construed as an admission of any fault or wrongdoing by or on behalf of City or District, all such claims having been expressly denied heretofore, and the parties continue to deny the same; and WHEREAS, all provisions of this Agreement are contractual in nature, and not mere recitals; and WHEREAS, the purpose of this Agreement is to set forth and embody a negotiated compromise, settlement, and release, as set forth herein. NOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, and the incorporation of the above Recitals, the parties hereto agree as follows: 215433.doc/jmr 420666-4 08/03/2011 `4-1411--0?,-2s - 1 ARTICLE II. PERSONS AND ENTITIES BOUND BY THIS AGREEMENT 1. District understands and agrees that by execution hereof, the terms of this Agreement are binding upon the District and upon all representatives, successors and assigns of District. 2. City understands and agrees that by execution hereof, the terms of this Agreement are binding upon City and upon all representatives, successors and assigns of City. 3. District represents and warrants that it has approved of all of the terms, conditions and covenants of this Agreement as evidenced by the duly authorized signature to this Agreement. 4. City represents and warrants that it has approved of all of the terms, conditions and covenants of this Agreement as evidenced by the duly authorized signature to this Agreement. ARTICLE III. NO OUTSTANDING CLAIMS 1. District warrants and represents that District has no awareness of the existence of any actual or potential claim, demand, suit, cause of action, charge or grievance possessed by District, which is not subject to and fully released by this Agreement, except for matters as may be expressly excluded in this Agreement, that arises from or relates to the Claims. 2. City warrants and represents that City has no awareness of the existence of any actual or potential claim, demand, suit, cause of action, charge or grievance possessed by City, which is not subject to and fully released by this Agreement, except for matters as may be expressly excluded in this Agreement, that arises from or relates to the Claims. 3. District warrants and represents that District has not assigned, authorized or transferred (in any way, whether directly or indirectly) any claims, demands, suits, causes of action, charges, or grievances of any kind or character, which District had or may have had prior to and including the Effective Date against City. District is unaware of any actual or potential claims, 420666-4 08/03/2011 2 demands, suits, causes of action, charges, or grievances of any kind or character against the City arising from or related to the Claims which are not subject to and released by this Agreement. City is unaware of any actual or potential claims, demands, suits, causes of action, charges, or grievances of any kind or character against the District arising from or related to the Claims which are not subject to and released by this Agreement. ARTICLE IV. CONSIDERATION 1. In consideration of the City's agreement (a) to issue a $98,536.36 credit to the District's wastewater billing account, which will be used to offset the District's future wastewater charges, the receipt and sufficiency of which are hereby acknowledged by District, and (b) to amend the Water and Wastewater Agreement dated the 22nd day of January, 1987 between the City, the District, and L&N Land Corp. to provide that the City will bill the District for wholesale wastewater service provided to the District using a conventional winter -average methodology (without an inflow and infiltration factor) based on the average water usage of District customers during the months of December, January, and February, and in consideration of the mutual agreements, conditions, representations, warranties, recitals, covenants and statements of intention contained herein, District hereby accepts the above -referenced credit and contract amendment in full settlement, compromise and release of all claims against the City arising from or related to the Claims, pursuant to this Agreement. ARTICLE V. MUTUAL RELEASE District and City hereby covenant, agree and consent to the following: 1. The intent of the parties hereto is that each person or entity executing this Agreement shall, by reason of such execution, be entirely free of any and all actual or potential claims, suits, 420666-4 08/03/2011 3 demands, causes of action, charges or grievances of any kind or character, regardless of the nature or extent of the same, arising from or related to the Claims. 2. District hereby fully and finally RELEASES, ACQUITS, AND FOREVER DISCHARGES the City from, and District further covenants not to assert in any manner against the City, any and all actual or potential claims held by District against City arising from or related to the Claims, and/or any suits, demands, causes of action, charges or grievances of any kind or character whatsoever, heretofore or hereafter accruing for or because of any matter done, omitted or suffered to be done by any such party hereto prior to and including the date hereof, arising from or related to the Claims. 3. City hereby fully and finally RELEASES, ACQUITS, AND FOREVER DISCHARGES District from, and City further covenants not to assert in any manner against the District, any and all actual or potential claims held by City against District arising from or related to the Claims, and/or any suits, demands, causes of action, charges or grievances of any kind or character whatsoever, heretofore or hereafter accruing for or because of any matter done, omitted or suffered to be done by any such party hereto prior to and including the date hereof, arising from or related to the Claims. ARTICLE VI. EXPRESS DENIAL OF LIABILITIES District and City understand and agree that no payment made nor released pursuant to the terms of this Agreement, or other consideration given shall be intended to be, nor shall be construed to be, an admission of liability and any and all such liability is expressly denied. ARTICLE VII. SEVERABILITY 420666-4 08/03/2011 4 If any one or more of the provisions of this Agreement, or the application of any such provision to any person, entity, or set of circumstances, shall be determined to be invalid, unlawful, or unenforceable to any extent at any time, the remainder of this Agreement, and the application of such provision to persons, entities, or circumstances other than those as to which it is determined to be invalid, unlawful, or unenforceable, shall not be affected, and shall continue to be enforceable to the fullest extent permitted by law. Any invalid, unlawful, or unenforceable provision hereof shall be reformed to the extent necessary to render it valid, lawful, and enforceable in a manner consistent with the intentions of the parties hereto regarding such provision. ARTICLE VIII. ENTIRE AGREEMENT OF THE PARTIES This Agreement constitutes the entire agreement and understanding of District and City and/or their representatives, with respect to the transactions contemplated hereby, and supersedes all prior agreements, arrangements, and understandings related to the subject matter hereof. No representations, warranties, recitals, covenants, or statements of intention have been made by, or on behalf of, any party hereto which is not embodied in this Agreement or in connection with the transactions contemplated hereby, and no party hereto shall be bound by, or liable for, any alleged representation, warranty, recital, covenant, or statement of intention not so set forth. All the terms, provisions, conditions, covenants, warranties, recitals, and statements of intention in this Agreement shall be binding upon, inure to the benefit of, and be enforceable by District and City, and/or their representatives. ARTICLE IX GOVERNING LAW This Agreement shall be construed in accordance with the governing laws of the State of Texas. The obligations of the parties are performable, and venue for any legal action arising out of 420666-4 08/03/2011 5 this Agreement shall lie in Williamson County, Texas. ARTICLE X FULL UNDERSTANDING AND AGREEMENT EACH RELEASING PERSON, ENTITY, OR PARTY WARRANTS THAT SUCH PARTY HAS READ THIS AGREEMENT AND FULLY UNDERSTANDS IT. EACH PARTY WARRANTS THAT SUCH PARTY IS OF LEGAL COMPETENCE OR LEGAL CAPACITY, AND IS FREE, WITHOUT DURESS, TO EXECUTE THIS AGREEMENT, THAT EACH OF THE UNDERSIGNED HAS THE AUTHORITY TO EXECUTE THIS AGREEMENT, AND THAT SUCH PARTY HAS DONE SO OF FREE WILL AND ACCORD, WITHOUT RELIANCE ON ANY REPRESENTATION OF ANY KIND OR CHARACTER NOT EXPRESSLY SET FORTH HEREIN. ARTICLE XI EXECUTION AND EFFECTIVE DATE This Agreement may be signed in counterparts, and each counterpart shall constitute an original. The parties hereto have executed this Agreement on the dates set forth opposite their names, to be effective as of the last date of due execution. 420666-4 08/03/2011 6 CITY OF ROUND ROCK, TEXAS By: ALAN MCGRAW, Mayor Date: • l STATE OF TEXAS § COUNTY OF VAI ! U� b4D1r) § On this "-"✓ "� day�' of �u� � � , before me, the undersigned notary public, personally appeared Alan McGraw, known to me to be the person whose name is subscribed to the within instrument and acknowledged that he/she executed the same for the purposes therein contained. Sz/wt,. w'j,LCC Notary Public, State of Texas 420666-4 08/03/2011 7 VISTA OAKS MUNICIPAL UTILITY DISTRICT By: Printed ame: Douglas Mink Title: President, Board of Directors Date: August 29, 2011 STATE OF TEXAS COUNTY OF TRAVIS On this 29th day of August , 2011 , before me, the undersigned notary public, personally appeared Douglas Mink , known to me to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same for the purposes therein contained. 1.1, ��;�• Mary Lou Sheridan .�•' Notary Public • State of Texas My Commission Expires February 17, 2013 Notary c, State of Texas 420666-4 08/03/2011 8