Contract - BCRUA, Cedar Park, Leander - 5/10/2018 FOURTH AMENDMENT TO THE MASTER CONTRACT FOR THE FINANCING,
CONSTRUCTION AND OPERATION OF THE BCRUA
REGIONAL WATER TREATMENT AND DISTRIBUTION PROJECT
THIS FOURTH AMENDMENT TO THE MASTER CONTRACT FOR THE
FINANCING, CONSTRUCTION AND OPERATION OF THE BCRUA REGIONAL WATER
TREATMENT AND DISTRIBUTION PROJECT(the"Fourth Amendment")is dated and entered
into as of the 25th day of April, 2018, by and among Brushy Creek Regional Utility Authority,
Inc. ("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"Master Contract"),that provides terms and conditions for
the financing, construction and operation of the first phase of the new regional system consisting
generally of upgrades to Cedar Park's raw water intake, a raw water intake line, new water
treatment plant, and water transmission mains; and
WHEREAS, on the 22"d 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 ("Furst Amendment")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 201h 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 ("Second Amendment") to update
the estimated costs shown in Exhibit D with actual cost numbers, as well as to revise estimated
costs; and
WHEREAS, on the 22nd day of February, 2012 the Parties entered into that one certain
Third Amendment to the Master Contract for the Financing, Construction and Operation of the
BCRUA Regional Water Treatment and Distribution Project ("Third Amendment") to delay
substantial completion of the water treatment plant from April 2012 to June 2012; and
WHEREAS, the Parties now desire to expand the definition of `BCRUA Project" to
include certain Phase II Regional System Components, as referenced in the Preliminary
Engineering Report, and
00397810.DOCX
WHEREAS,with respect to the added Phase II components,the Parties also desire to attach
a new Exhibit D-1 to set out the estimated costs,the allocation of the costs among the Parties, and
to set out the Parties respective reserved capacities;
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 that the Master Contract
is amended as follows:
ARTICLE 1
TABLE OF CONTENTS
The list of exhibits in the table of contents of the Master Contract, is amended to read as follows:
EXHIBITS
Exhibit A-1 Contract between City of Round Rock and BRA for Lake Travis Water
Exhibit A-2 Contract between City of Round Rock and BRA for Lake Travis Water
Exhibit A-3 Contract between City of Round Rock and BRA for Lake Travis Water
Exhibit B Contract between City of Cedar Park and LCRA for Lake Travis Water
Exhibit C Contract between City of Leander and LCRA for Lake Travis Water
Exhibit D Cities' Reserved Capacity and Cost Allocation in BCRUA Project Components,
Phase I
Exhibit D-1 Cities' Reserved Capacity and Cost Allocation in BCRUA Project Components,
Phase II
ARTICLE II
NEW EXHIBIT D-1
The document entitled "Exhibit D-1, Cities' Reserved Capacity and Cost Allocation in BCRUA
Project Components: April 25, 2018," which is attached to and incorporated herein is considered
attached to and incorporated in the Master Contract.
ARTICLE III
DEFINITIONS
All terms used herein shall have the meanings assigned to them in the Master Contract,unless the
context clearly requires otherwise.
ARTICLE IV
AMENDED DEFINITIONS
4.01 The Parties acknowledge that the term "BCRUA Project," as defined in Sec. 1.1(f) of the
Master Contract is hereby amended to read as follows:
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(f) "BCRUA Project"means,collectively,the Land Interests and the improvements described
in the recitals to this Contract and further described in the Preliminary Design Report,and as shown
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on Exhibit "D" and on Exhibit "D-111. Without limitation, the BCRUA Project includes the
facilities, lines, intake structures, storage tanks, booster pumps, and other appurtenances in the
BCRUA Project as described in the Preliminary Design Report and owned by the BCRUA
sufficient to treat the raw water and deliver the treated water to which the Cities, respectively, are
entitled under this Contract.
4.02 The Parties acknowledge that the tern`BCRUA Project Costs," as defined in Sec. 1.1(g)
of the Master Contract is hereby amended to read as follows:
(g) `BCRUA Project Costs" means and includes, without limitation, the following costs
incurred for the BCRUA Project by or on behalf of the BCRUA or the Cities:
(i) the cost of acquisition of the Land Interests, including appraisals, closing costs
and title insurance policies;
(ii) the cost of acquisition, construction, repair, replacement, improvement or
decommissioning of the BCRUA Project, and any structure, item of equipment, or
other item, used for, or in connection with,the BCRUA Project;
(iii) the cost of site preparation of the Land Interests, including demolition or
removal of structures and improvements as necessary or incident to accomplishing
the BCRUA Project;
(iv) the cost of engineering, legal, architectural or other related services;
(v) the preparation cost of plans, specifications, studies, surveys, cost estimates,
and other expenses necessary or incident to planning, providing, or financing the
BCRUA Project;
(vi) the cost of machinery, equipment, furnishings, and facilities necessary or
incident to placing the BCRUA Project in operation;
(vii)finance charges and interest before,during,and after construction as permitted
by the laws of the State;
(viii) costs incurred in connection with financing the BCRUA Project, including,
without limitation:
(1) financing, legal, accounting, financial advisory, rating agency, and
auditing fees, expenses and disbursements;
(2)the cost of printing, engraving, and reproduction services; and
(3) the cost of a trustee's or paying agent's initial or acceptance fee and
subsequent fees;
(ix) all costs, fees and expenses of litigation of all kinds;
(x)the cost of property casualty and public liability insurance;
(xi) the fees and costs of the underwriters as the anticipated purchasers of the
Bonds;
(xii) reimbursement of the costs previously incurred by and agreeable to the other
Cities with respect to the BCRUA Project; and
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(xiii) other costs generally recognized as a part of BCRUA Project construction
costs.
BCRUA Project Costs will be allocated among the Cities in accordance with Exhibit"D" and
Exhibit"D-1".
ARTICLE V
FINANCING OF THE BCRUA PROJECT
The Parties acknowledge that Article IV, Sec. 4.1(a) of the Master Contract is hereby
amended to read as follows:
Section 4.1 Issuance of Bonds.
(a) The BCRUA's acquisition, construction, and completion of the BCRUA Project
will be financed by
(i) receipt of funds from the Cities, respectively,
(ii) the BCRUA through the issuance of one or more series or issues of Bonds by
the BCRUA for a City, which Bonds are payable solely from and secured, in part,
by an assignment of the Bond Payments made under this Contract by the City for
which such series of Bonds are issued, or
(iii) any combination of funds from the Cities, respectively, and the issuance of
Bonds for the Cities, respectively. It is expressly understood and agreed by the
BCRUA and the Cities that the BCRUA shall issue Bonds as separate series for the
applicable City.
Each City shall be solely responsible for Bond Payments on its series of Bonds. No City
shall have any liability or responsibility for any Bond Payment on a series of Bonds issued for
another City. In consideration of the covenants and agreements set forth in this Contract, and to
enable the BCRUA to issue the Bonds to carry out the intents and purposes hereof, this Contract
is executed to assure the issuance of the Bonds at the request of a City and to provide for and
ensure the due and punctual payment by such City to the BCRUA, or to the Trustee relating to the
series of Bonds issued for such City, of amounts not less than the Bond Payments. Each City
hereby agrees to make, or cause to be made, its respective Bond Payments, as and when due, for
the benefit of the owners of the Bonds, as provided in the Bonds and the Bond Resolution. The
cost allocations for the BCRUA Project Cost are shown in Exhibit"D" and in Exhibit"D-1".
ARTICLE VI
RESERVED CAPACITIES
The Parties acknowledge that Article VI Reserved Capacities of the Master Contract is hereby
amended to read as follows:
Section 6.1 Reserved Capacities in BCRUA Project Components.Each City,respectively,shall
have the exclusive right to its reserved capacity in each BCRUA Project component as described
in Exhibit D and in Exhibit D-1.No reserved capacity may be allocated to or used by anyone other
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than the City on whose behalf that capacity has been reserved,unless the affected City specifically
agrees in writing to the allocation or use.
Section 6.2 Reserved Capacities for Treated Water in the BCRUA Project. Each City,
respectively, shall have the exclusive right to take, and the BCRUA shall have the obligation to
deliver,treated water at the Delivery Points in the amounts shown in Exhibit D and in Exhibit D-
1.
Section 6.3 Transfer of Reserved Capacity. Any City may transfer any portion of its
reserved capacity in one or more BCRUA Project components to another City, in exchange for
such consideration as such Cities shall deem appropriate. The Cities making such transfer shall
provide written notice to the BCRUA and the other City, signed by the Cities making the transfer,
specifying the amount of transferred reserved capacity and the affected BCRUA Project
component(s), and providing that the Cities otherwise ratify and confirm their pre-existing
obligations under this Contract. No such transfer shall be effective until and unless such notice is
provided. A transfer of reserved capacity shall not change any Bond Payment, other payment, or
other obligations of the Cities pursuant to this Contract.
Section 6.4 Documentation of Transferred Reserved Capacity. In the event that reserved
capacity is transferred, the BCRUA and the Cities shall cause a written amendment to be made to
Exhibit D and/or Exhibit D-1 describing such transfer and setting forth the revised reserved
capacity of each City in the BCRUA Project or component(s)thereof.
ARTICLE VII
MISCELLANEOUS
Section 7.1 To the extent necessary to effect the terms and provisions of this Fourth
Amendment, the Master Contract is hereby amended and modified. In all other respects, the
aforesaid Master Contract is hereby ratified and confirmed.
Section 7.2 This Fourth 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 WIIERE,OF,the Parties hereto acting under authority of their respective
governing bodies have caused this Fourth Amendment to be duly executed as of the day and year
first above written.
(SIGNATURES ON FOLLOWING PAGES)
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BRUSHY CREEK REGIONAL UTILITY AUTHORITY,INC.
By:
Frank Leffingwell, President
Attest:
By:
Secretary
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CITY OF CEDAR PARK, TEXAS
By:
Matt Powell, Mayor
Attest:
By:
LeAnn Quinn, City Secretary
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CITY OF LEANDER, TEXAS
By:
Christopher Fielder, Mayor
Attest:
By:
Dara Crabtree, City Secretary
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CITY OF ROUND ROCK, TEXAS
By:
Craig Mor an, Ma r
Attest:
By:
Sara White, City Clerk
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Exhibit D-1
BCRUA Regional Water Project
Capacity and Cost Allocation,Phase 2
Updated:March 26,2018
CONSTRUCTED ESTIMATED CEDAR PARK CEDAR PARK LEANDER LEANDER ROUND ROCK ROUND ROCK
DESCRIPTION CAPACITY(MGD) COST RESERVED COST RESERVED COST RESERVED COST
CAPACITY /o CAPACITY /o CAPACITY
PHASE 2-DEEP WATER INTAKE&RAW WATERLINE
Planning&Design Services 144.7 $ 16,700,000 28.96 $ 4,836,320 42.85 S 7,155,950 28.19 $ 4,707,730
Land Rights 144.7 S 2,500,000 28.96 S 724,000 42.85 $ 1,071,250 28.19 $ 704,750
Electrical Improvement Construction&Construction Phase Services 144.7 S 4,597,657 28.96 $ 1,331,481 42.85 S 1,970,096 28.19 S 1,296,080
PHASE 2-DEEP WATER INTAKE&PAY1 WATERLINE SUB-TOTAL $ 23,797,657 $ 6,891,801 1$ 10,197,296 $ 6,708,860
Cost Allocation Percents a 28.96% 42.85% 28.19%
BCRUA PROJECT PHASE 2 TOTAL COST $ 23,797,657 S 6,891,801
$ 10,197,296 6,708,560
Capacity(MGD) %of Capacity
Cedar Park 41.9 28.96
Leander 62.0 42.85
Round Rock 40.8 28.19
Total 144.7 100