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R-12-03-08-9C1 - 3/8/2012 RESOLUTION NO. R-12-03-08-90 WHEREAS, the City of Round Rock ("City") has previously entered into a Master Contract for the Financing, Construction and Operation of the BCRUA Regional Water Treatment and Distribution Project ("Master Contract") with the Brushy Creek Regional Utility Authority, Inc., the City of Cedar Park, and the City of Leander, and WHEREAS, the City now desires to enter into a Third Amendment to the Master Contract to delay substantial completion of the water treatment plant from April to June 2012,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 Third Amendment to the Master Contract for the Financing, Construction and Operation of the BCRUA Regional Water Treatment and Distribution Project, 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 8th day of March, 2012. ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: SNI . (A SARA L. WHITE, City Clerk O:\wdox\SCC1nts\0112\1204\MUNICIPAL\00244725.DOC/rmc EXHIBIT „A„ THIRD AMENDMENT TO THE MASTER CONTRACT FOR THE FINANCING,CONSTRUCTION AND OPERATION OF THE BCRUA WATER TREATMENT AND DISTRIBUTION PROJECT THIS THIRD AMENDMENT TO THE MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION AND OPERATION OF THE BCRUA REGIONAL WATER TREATM.ENT AND DISTRIBUTION PROJECT (the "Third Amendment") is dated and entered into as of the _ day of 2012, by and among the Brushy Creek Regional Utility Authority, Inc.,(the"BCRUA"), a non-profit corporation of the State of Texas(the"State"),created and existing under the laws of the State, including Subchapter D of Chapter 431, as amended, Texas Transportation Code, and the 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"). The BCRUA and the Cities are collectively referred to herein as the "Parties." RECITALS WHEREAS, on the 2"d day of September, 2008 the Parties entered into that one certain Master Contract for the Financing, Construction and Operation of the BCRUA Regional Water Treatment and Distribution Project(the"Contract");and WHEREAS, on the 22nd day of January, 2009, the Parties entered into that one certain First Amendment to the Master Contract for the Financing, Construction and Operation of the BCRUA Regional Water Treatment and Distribution Project to postpone the date on which the BCRUA Project is to be operational from April 1,2011 to April 1,2012;and WHEREAS, on the 20"' day of October, 2010, the Parties entered into that one certain Second Amendment to the Master Contract for the Financing, Construction and Operation of the BCRUA Regional Water Treatment and Distribution Project to update and replace Exhibit D to the Contract; and WHEREAS, the Parties now wish to again postpone the date on which the BCRUA Project is to be operation from April 1,2012 to June 1,2012;and WHEREAS, the Parties wish to amend the Contract to reflect this new date; 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 and the BCRUA mutually agree as follows: ARTICLE I DEFINITIONS Section 1.1 All terms used herein shall have the meanings assigned to them in the Contract, unless the context clearly requires otherwise. 242338 ARTICLE II AMENDMENTS Section 2.1 Section 3.1,General of the Contract is hereby amended to read as follows: Subject to the remaining terms and provisions of this Contract, the BCRUA agrees to issue one or more series of the Bonds, as requested by any City, to acquire and construct the BCRUA Project as generally described in the Preliminary Design Report. The Parties anticipate that the BCRUA Project will be operational by June 1, 2012. It is expressly understood and agreed that any obligations on the part of the BCRUA to finance, acquire, construct, and complete the BCRUA Project and any fiiture expansions of the BCRUA Project and to provide the water treatment capacity to the Cities shall be (i) conditioned upon the BCRUA's ability to obtain all necessary permits, Land Interests, material, labor,and equipment,and upon the ability of the BCRUA to finance the BCRUA Project Costs through the actual sale of the Bonds or receipt of funds from the Cities, including any Additional Bonds needed to complete the BCRUA Project, and (ii) subject to all present and fiiture valid laws, orders, rules, and regulations of the United States of America, the State, and any regulatory body having jurisdiction. The BCRUA shall acquire and construct the BCRUA Project with all reasonable dispatch,and the BCRUA will use best efforts to pursue such acquisition and constriction in order that(i) the notice to proceed will be issued to the contractor, which will be deemed the commencement of construction, on the Phase I Raw Water Facilities as defined in the FDR by August 15, 2009; (ii) the notice to proceed will be issued to the contractor, which will be deemed the commencement of construction on the water treatment plant component of the BCRUA Project by October 1, 2009, and (iii) the BCRUA Project will be operational by June 1, 2012, delays incident to events of Force Majeure only excepted. Section 2.2 Section 3.5,Award of Construction Contracts of the Contract is hereby amended so that the last sentence of said Section 3.5 shall read as follows: "The BCRUA shall ensure that all contracts for the construction of the BCRUA Project provide that the BCRUA Project will be operational by it shall hereafter state"June 1,2012." ARTICLE III MISCELLANEOUS Section 3.1 To the extent necessary to effect the terms and provisions of this Third Amendment, the Contract is hereby amended and modified. In all other respects, the aforesaid Contract is hereby ratified and confirmed. Section 3.2 This Third 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 Parties hereto acting under authority of their respective governing bodies have caused this Third Amendment to be duly executed as of the day and year first above written. (Signatures on Following Pages) BRUSHY CREEK REGIONAL UTILITY AUTHORITY,INC. By: George White,President Attest: By: Mitch Fuller,Secretary CITY OF CEDAR PARK,TEXAS By: Bob Lemon,Mayor Attest: By: LeAnn Quinn,City Secretary CITY OF LEANDER,TEXAS By: Jolm Cowman,Mayor Attest: By: Debbie Haile,City Secretary CITY OT ROUND ROCK,TEXAS By: Attest: Alan McGraw,Mayor By: Sara White,City Clerk ROUNDR4CK,TEXAS City Council Agenda Summary Sheet PURPOSE AassroR PRosPEWY Agenda Item No. 9C1. Consider a resolution authorizing the Mayor to execute the Third Amendment to the Master Contract for the Financing, Construction and Operation of the BCRUA Water Agenda Caption: Treatment and Distribution Project. Meeting Date: March 8, 2012 Department: Utilities and Environmental Services Staff Person making presentation: Michael Thane, P.E. Utilities Director Item Summary: On September 9, 2008, the Cities entered into a Master Contract which provides the terms and conditions for the financing, construction, and operation of Phase 1A of the Brushy Creek Regional Utility Authority (BCRUA) regional water project. On December 18, 2008, the Cities amended the Master Contract to delay the issuance of bonds and the commencement of construction of the project. Amendment No. 2 to the Master Contract was approved in October 2010 to revise the actual cost necessary to complete Phase 1A of the regional water project. This third amendment is necessary to delay substantial completion of the water treatment plant from April to June 2012. Cost: N/A Source of Funds: N/A Date of Public Hearing(if required): N/A Recommended Action: Approval THIRD AMENDMENT TO THE MASTER CONTRACT FOR THE FINANCING,CONSTRUCTION AND OPERATION OF THE BCRUA WATER TREATMENT AND DISTRIBUTION PROJECT THIS THIRD AMENDMENT TO THE MASTER CONTRACT FOR THE FINANCING, CONSTRUCTION AND OPERATION OF THE BCRUA REGIONAL WATER TREATMENT Ninto as of the t ofD DISTRIBUTION PROJECT (the "Third Amendment")") is dated and entered � y Rb«, 2012, by and among the Brushy Creek Regional Utility Authority, Inc., (the"BCRUA"), a non-profit corporation of the State of Texas(the"State"),created and existing under the laws of the State, including Subchapter D of Chapter 431, as amended, Texas Transportation Code, and the 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"). The BCRUA and the Cities are collectively referred to herein as the "Parties." RECITALS WHEREAS, on the 2"I day of September, 2008 the Parties entered into that one certain Master Contract for the Financing, Construction and Operation of the BCRUA Regional Water Treatment and Distribution Project(the"Contract"); and WHEREAS, on the 22nd day of January, 2009, the Parties entered into that one certain First Amendment to the Master Contract for the Financing, Construction and Operation of the BCRUA Regional Water Treatment and Distribution Project to postpone the date on which the BCRUA Project is to be operational from April 1,2011 to April 1,2012; and WHEREAS, on the 20t1t day of October, 2010, the Parties entered into that one certain Second Amendment to the Master Contract for the Financing, Construction and Operation of the BCRUA Regional Water Treatment and Distribution Project to update and replace Exhibit D to the Contract; and WHEREAS, the Parties now wish to again postpone the date on which the BCRUA Project is to be operation from April 1,2012 to June 1,2012;and WHEREAS, the Parties wish to amend the Contract to reflect this new date; 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 and the BCRUA mutually agree as follows: ARTICLE I DEFINITIONS Section 1.1 All terms used herein shall have the meanings assigned to them in the Contract, unless the context clearly requires otherwise. 242338 0 - I' /12, _tuni r ARTICLE II AMENDMENTS Section 2.1 Section 3.1,General of the Contract is hereby amended to read as follows: Subject to the remaining terms and provisions of this Contract, the BCRUA agrees to issue one or more series of the Bonds, as requested by any City, to acquire and construct the BCRUA Project as generally described in the Preliminary Design Report. The Parties anticipate that the BCRUA Project will be operational by June 1, 2012. It is expressly understood and agreed that any obligations on the part of the BCRUA to finance, acquire, construct, and complete the BCRUA Project and any future expansions of the BCRUA Project and to provide the water treatment capacity to the Cities shall be (i) conditioned upon the BCRUA's ability to obtain all necessary permits, Land Interests, material, labor, and equipment,and upon the ability of the BCRUA to finance the BCRUA Project Costs through the actual sale of the Bonds or receipt of funds from the Cities, including arty Additional Bonds needed to complete the BCRUA Project, and (ii) subject to all present and future valid laws, orders, rules, and regulations of the United States of America, the State, and any regulatory body having jurisdiction. The BCRUA shall acquire and construct the BCRUA Project with all reasonable dispatch, and the BCRUA will use best efforts to pursue such acquisition and construction in order that (i) the notice to proceed will be issued to the contractor, which will be deemed the commencement of construction, on the Phase I Raw Water Facilities as defined in the PDR by August 15, 2009; (ii) the notice to proceed will be issued to the contractor, which will be deemed the commencement of construction on the water treatment plant component of the BCRUA Project by October 1, 2009, and (iii) the BCRUA Project will be operational by June 1, 2012, delays incident to events of Force Majeure only excepted. Section 2.2 Section 3.5,Award of Construction Contracts of the Contract is hereby amended so that the last sentence of said Section 3.5 shall read as follows: "The BCRUA shall ensure that all contracts for the construction of the BCRUA Project provide that the BCRUA Project will be operational by it shall hereafter state"June 1,2012." ARTICLE III MISCELLANEOUS Section 3.1 To the extent necessary to effect the terms and provisions of this Third Amendment, the Contract is hereby amended and modified. In all other respects, the aforesaid Contract is hereby ratified and confirmed. Section 3.2 This Third 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 Parties hereto acting under authority of their respective governing bodies have caused this Third Amendment to be duly executed as of the day and year first above written. (Signatures on Following Pages) BRUSHY CREEK REGIONAL UTILITY AUTHORITY,INC. By: George Whiresident Attest: By: Mitch F Ilex, Secretar I CITY OF CEDAR PARK,TEXAS By: / f Bob Lemon,Mayor Attest: By : ;))/lei99. 6-1 .f._ LeAnn Quinn, City Secretary 5 CIT. OF EANDER . EXAS B V.,/ k' n Cowman,Mayor Attest: By: Debbi Haile, City Secretary 6 CITY OF ROUND ROCK,TEXAS By: ceyit,/,4„,--- Alan McGraw,Mayor Attest: By: g/4/44/- 14t071CF‘ Sara White, City Clerk aeufic- f.-1 Z-6 2- Z2--CE 7