Loading...
R-13-08-08-G4 - 8/8/2013RESOLUTION NO. R -13-08-08-G4 WHEREAS, the City of Round Rock wishes to enter into a Cost Sharing Agreement ("Agreement") with the Forest Creek Homeowners Association regarding reuse water for irrigation purposes, and WHEREAS, the City Council wishes to approve said Agreement, 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 Cost Sharing Agreement with the Forest Creek Homeowners Association, 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 August, 2013. Op, ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: SARA L. WHITE, City Clerk 0112.1304. 00279309 COST SHARING AGREEMENT THE STATE OF TEXAS t EXHIBIT II All KNOW ALL BY THESE PRESENTS: COUNTY OF WILLIAMSON THIS COST SHARING AGREEMENT ("Agreement") is entered into between the City of Round Rock, Texas, a Texas home -rule city ("City"); and the Forest Creek Homeowners Association, ("HOA"). In this Agreement, Round Rock, and HOA are sometimes individually referred to as " Party" and collectively referred to as "Parties". Recitals WHEREAS, City operates a wastewater reuse system that treats wastewater so that it may be reused and utilized for landscape irrigation purposes ("Reuse Water"); and WHEREAS, HOA is responsible for maintaining and irrigating a significant amount of common areas that demand significant amounts of water; and WHEREAS, HOA is interested in obtaining Reuse Water for irrigation purposes and the City is interesting in providing Reuse Water to HOA; and WHEREAS, in order to make Reuse Water available to HOA, certain improvements will be necessary at the wastewater treatment plant; and WHEREAS, HOA is willing to share in the cost of constructing the needed improvements; NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises and agreements of the Parties contained in this Agreement, the Parties agree as follows: II. TERMS 1.01 Improvements. City agrees to construct the improvements at the wastewater treatment plant necessary to provide Type I Reuse Water to HOA for use as irrigation water for the HOA common areas. 1.02 Sharing of Cost. HOA agrees that it will pay $45,000 to City as its share of the cost of the needed improvements. HOA agrees to pay said amount within ten (10) days of receipt by HOA of a written request for same from the City. 1.03 Reuse Water Service Contract. The Parties agree to enter into a Reuse Water Service Contract, a copy of which is attached hereto as Exhibit "A." 3d46c151-f2f6-4168-bbdb-d8997ec0f3f3. DOCX 1.04 Dispute Resolution. In the event of any dispute among the Parties, the Parties agree to work diligently and in good faith to resolve the dispute as quickly as possible so as not to jeopardize the Reuse Water project. The Parties agree that time is of the essence in this matter. II. GENERAL PROVISIONS 2.01 Severability. The provisions of this Agreement are severable and, if any provision of this Agreement is held to be invalid for any reason by a court or agency of competent jurisdiction, the remainder of this Agreement shall not be affected and this Agreement shall be construed as if the invalid portion had never been contained herein. 2.02 Cooperation. The Parties agree to cooperate at all times in good faith to effectuate the purposes and intent of this Agreement. 2.03 Entire Agreement. Except as otherwise expressly provided herein, this Agreement contains the entire agreement of the Parties regarding the sharing of costs for the Reuse Water project and supersedes all prior or contemporaneous understandings or representations, whether oral or written, regarding the subject matter. 2.04 Amendments. Any amendment of this Agreement must be in writing and shall be effective if signed by the authorized representatives of the Parties. 2.05 Applicable Law; Venue. This Agreement shall be construed in accordance with Texas law. Venue for any action arising hereunder shall be in Williamson County, Texas. 2.06 Force Majeure. Parties shall not be deemed in violation of this Contract if prevented from performing any of their obligations hereunder by reasons for which they are not responsible or circumstances beyond their control. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. 2.07 Exhibits. The following exhibit is attached to this Agreement and incorporated herein by reference: Exhibit A - Reuse Water Service Contract 2.08 Counterparts. Effect of Partial Execution. This Agreement may be executed simultaneously in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute the same instrument. 2.09 Authority. Each Party represents and warrants that it has the full right, power and authority to execute this Agreement. 2 ATTEST: Sara White, City Clerk CITY OF ROUND ROCK: By: Date: Alan McGraw, Mayor FOREST CREEK HOMEOWNERS ASSOCIATION By: Date: 3 its STATE OF TEXAS Exhibit A REUSE WATER SERVICE CONTRACT § § COUNTY OF WILLIAMSON § This Reuse Water Service Contract ("Contract") is made and entered into by and between the CITY OF ROUND ROCK, a home -rule city, hereinafter referred to as "City", and FOREST CREEK HOMEOWNERS ASSOCIATION, hereinafter referred to as "Purchaser." For and in consideration of the premises and the mutual agreements, covenants, and conditions hereinafter set forth, the parties hereto contract and agree as follows: Article I. Provision of Reuse Water Service 1.01. City agrees to sell Purchaser reuse water service required by Purchaser for irrigation and/or other non-domestic uses on an as -needed basis, for the common areas in the Forest Creek subdivision, such common areas are referred to herein as the "Property." 1.02. City's obligation to provide reuse water service under this Contract is subject to the capacity of City's facilities to provide reuse water service to Purchaser. The City will make reasonable efforts to provide a minimum of 3.0 million gallons of reuse water per month. 1.03. It was necessary to construct certain improvements to the wastewater treatment plant and the HOA has paid to the City the sum of $45,000 as its share of the cost of said improvements. Article II. Rates 2.01. Purchaser agrees to pay City for all reuse water delivered to Purchaser plus the base charges as provided below. Reuse water will be delivered to Purchase through four separate meters. Purchaser will pay a base charge for each meter based upon each meter's size as set forth below: a. The monthly base charge for the 5/8" meter located at Red Bud Lane and Forest Creek Drive shall be $10.38. b. The monthly base charge for the 2" meter located at St. Andrews and Forest Creek Drive shall be $68.86. c. The monthly base charge for the 2" meter located at Turnberry and Forest Creek Drive shall be $68.86. d. The monthly base charge for the 3/4" meter located at Red Bud Lane and Bobby Jones shall be $14.46. The Purchaser shall also pay an initial volume charge of $1.76 per 1,000 gallons used. The base 4 charge and volume charge shall be seventy-five percent (75%) of the bottom tier potable water rate adopted by the City Council for the various meter sizes, as amended from time to time. Purchaser understands and agrees that the rates and charges provided for herein are subject to adjustment if the meter size changes, or if the City Council adopts an ordinance changing the City's potable water rates. 2.02. City shall render a monthly bill to Purchaser for reuse water consumed. Payment shall be made no later than the tenth (10th) day following the mailing of the bill. Failure by Purchaser to make a payment when and as specified will give City the option to terminate all obligations of City under this Contract. 2.03. Purchaser shall be subject to all provisions of the Utility Billing Policy contained in Sec. 44-31 of the Round Rock Code of Ordinances (2010 Edition), and as amended from time to time. Article III. Compliance with Ordinances 3.01. Purchaser agrees to comply with all of City's ordinances as they now exist or as they are amended from time to time regarding the use of reuse water. Article IV. Purchaser's Obligations, Responsibilities and Indemnification 4.01 Purchaser acknowledges that the reuse water provided by City is not potable and is not suitable for any domestic use or purpose. THE REUSE WATER DELIVERED PURSUANT TO THIS CONTRACT IS NOT SAFE FOR HUMAN CONSUMPTION. The reuse water is intended to be used only for the irrigation of outdoor plants and landscaping. Purchaser agrees to take all reasonable and necessary precautions to prevent the reuse water from being used for any other purpose. 4.02 Purchaser shall save and hold harmless City and its officers and employees from all claims and liabilities due to activities of itself and its officers, agents, or employees which are caused by or which result from the error, omission, or negligent act of Purchaser or of any person employed by Purchaser or under Purchaser's direction or control. Purchaser shall also save and hold City harmless from any and all expenses, including but not limited to reasonable attorney's fees which may be incurred by City in litigation or otherwise defending claims or liabilities which may be imposed on City as a result of such negligent activities by Purchaser, its officers, agents, or employees. Article V. Force Majeure 5.01. In the event either party is rendered unable, wholly or in part, by force majeure to carry out any of its obligations under this Contract, then the obligations of that party, to the extent affected by the force majeure and to the extent that due diligence is being used to resume performance at the earliest practicable time, shall be suspended during the continuance of the inability. The cause, as far as possible, shall be remedied with all reasonable diligence. The 5 term "force majeure" includes acts of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, orders of the government of the United States or the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraints of government and people, civil disturbances, explosions, breakage or accidents to equipment, pipelines, or canals, partial or entire failure of water supply, and any other inabilities of either party, whether similar to those enumerated or otherwise, that are not within the control of the party claiming the inability and that could not have been avoided by the exercise of due diligence and care. It is understood and agreed that the settlement of strikes and lockouts shall be entirely within the discretion of the party having the difficulty and that the requirement that any force majeure be remedied with all reasonable dispatch shall not require the settlement of strikes and lockouts by acceding to the demands of the opposing party if the settlement is unfavorable to it in the judgment of the party having the difficulty. Force majeure shall relieve City from liability to Purchaser for failure to provide water service due to an inability covered by this article. Force majeure shall not relieve Purchaser of its obligation to make payments to City as provided in this Contract. Article VI. Term 6.01. The term of this Contract shall be until September 30, 2021, or when the City Council adopts an ordinance establishing reuse water rates for all customers on the system, whichever first occurs. Article VII. Miscellaneous Provisions 7.01. Purchaser agrees that it is prohibited from selling or giving reuse water purchased herein to anyone else. 7.02. This Contract shall be construed under and in accordance with the laws of the State of Texas, and any and all actions brought to enforce the term of this Contract shall be brought in Williamson County. 7.03. This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and assigns where permitted by this Contract. 7.04. In case any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof, and this Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 7.05. This Contract constitutes the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting the within subject matter. 7.06. The violation by Purchaser of any of City's ordinances related to the use or disposition of reuse water shall render this Contract voidable at the option of City. EXECUTED, in duplicate, at Round Rock, Williamson County, Texas, on the dates set out below the signatures below. ATTEST: Sara White, City Clerk 7 SELLER: CITY OF ROUND ROCK By: Alan McGraw, Mayor Date: PURCHASER: FOREST CREEK HOMEOWNERS ASSOCIATION By: Its Date: ROUND ROCK, TEXAS PURPOSE lwmon PROSPERITI City of Round Rock Agenda Item Summary Agenda Number: G.4 Title: Consider a resolution authorizing the Mayor to execute a Cost Sharing Agreement with the Forest Creek Homeowners Association regarding reuse water for irrigation purposes. Type: Resolution Governing Body: City Council Agenda Date: 8/8/2013 Dept Director: Michael Thane, Director of Utilities and Environmental Services Cost: Indexes: Attachments: Resolution, Exhibit A, Map Text of Legislative File 13-568 The Forest Creek Home Owner's Association (FCHOA) came to the City several years ago asking if they could receive reuse water to irrigate their subdivision entrance and common areas. The City has reached a point in the development of the reuse water utility system that we can now provide Type I reuse water to the FCHOA. There are necessary improvements at the Reuse Water Treatment facility that are necessary in order to provide Type I reuse water to the FCHOA. These improvements include a new 8 -inch reuse line that will be constructed from the Reuse Treatment Facility high service pumps to the existing reuse line (located on the eastern edge of the wastewater plant property) that currently feeds reuse water to the Forest Creek Golf Course. These improvements are estimated to cost the City approximately $90,000. In order to complete this project sooner than planned, the City has negotiated an agreement with the FCHOA to contribute $45,000 of the costs in order to make the conversion to Type I reuse water. It is anticipated that these improvements will be completed by Spring 2014. In addition, the FCHOA will be responsible for constructing improvements to their irrigation system in order to receive and distribute reuse water. Staff recommends approval. City of Round Rock Page 1 Printed on 8/5/2013 EXECUTED ORIGINAL DOCUMENIS FOLLOW THE STATE OF TEXAS COUNTY OF WILLIAMSON COST SHARING AGREEMENT § § § KNOW ALL BY THESE PRESENTS: THIS COST SHARING AGREEMENT ("Agreement") is entered into between the City of Round Rock, Texas, a Texas home -rule city ("City"); and the Forest Creek Homeowners Association, ("HOA"). In this Agreement, Round Rock, and HOA are sometimes individually referred to as " Party" and collectively referred to as "Parties". Recitals WHEREAS, City operates a wastewater reuse system that treats wastewater so that it may be reused and utilized for landscape irrigation purposes ("Reuse Water"); and WHEREAS, HOA is responsible for maintaining and irrigating a significant amount of common areas that demand significant amounts of water; and WHEREAS, HOA is interested in obtaining Reuse Water for irrigation purposes and the City is interesting in providing Reuse Water to HOA; and WHEREAS, in order to make Reuse Water available to HOA, certain improvements will be necessary at the wastewater treatment plant; and WHEREAS, HOA is willing to share in the cost of constructing the needed improvements; NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises and agreements of the Parties contained in this Agreement, the Parties agree as follows: II. TERMS 1.01 Improvements. City agrees to construct the improvements at the wastewater treatment plant necessary to provide Type I Reuse Water to HOA for use as irrigation water for the HOA common areas. 1.02 Sharing of Cost. HOA agrees that it will pay $45,000 to City as its share of the cost of the needed improvements. HOA agrees to pay said amount within ten (10) days of receipt by HOA of a written request for same from the City. 1.03 Reuse Water Service Contract. The Parties agree to enter into a Reuse Water Service Contract, a copy of which is attached hereto as Exhibit "A." 3d46c151-f2f6-4168-bbdb-d8997ecOf3f3.DOCX R./ 1 )1 -tx - A- 1.04 Dispute Resolution. In the event of any dispute among the Parties, the Parties agree to work diligently and in good faith to resolve the dispute as quickly as possible so as not to jeopardize the Reuse Water project. The Parties agree that time is of the essence in this matter. II. GENERAL PROVISIONS 2.01 Severability. The provisions of this Agreement are severable and, if any provision of this Agreement is held to be invalid for any reason by a court or agency of competent jurisdiction, the remainder of this Agreement shall not be affected and this Agreement shall be construed as if the invalid portion had never been contained herein. 2.02 Cooperation. The Parties agree to cooperate at all times in good faith to effectuate the purposes and intent of this Agreement. 2.03 Entire Agreement. Except as otherwise expressly provided herein, this Agreement contains the entire agreement of the Parties regarding the sharing of costs for the Reuse Water project and supersedes all prior or contemporaneous understandings or representations, whether oral or written, regarding the subject matter. 2.04 Amendments. Any amendment of this Agreement must be in writing and shall be effective if signed by the authorized representatives of the Parties. 2.05 Applicable Law; Venue. This Agreement shall be construed in accordance with Texas law. Venue for any action arising hereunder shall be in Williamson County, Texas. 2.06 Force Majeure. Parties shall not be deemed in violation of this Contract if prevented from performing any of their obligations hereunder by reasons for which they are not responsible or circumstances beyond their control. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. 2.07 Exhibits. The following exhibit is attached to this Agreement and incorporated herein by reference: Exhibit A - Reuse Water Service Contract 2.08 Counterparts. Effect of Partial Execution. This Agreement may be executed simultaneously in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute the same instrument. 2.09 Authority. Each Party represents and warrants that it has the full right, power and authority to execute this Agreement. 2 ATTEST: SIA/IA/1friat Sara White, City Clerk CITY OF ROUND ROCK: By: Date: Alan McGraw, Mayor k.0 U13 FOREST CREEK HOMEOWNERS ASSOCIATION By: itsXrd,64./— Date: SS/03 3 Exhibit A REUSE WATER SERVICE CONTRACT STATE OF TEXAS COUNTY OF WILLIAMSON § § § This Reuse Water Service Contract ("Contract") is made and entered into by and between the CITY OF ROUND ROCK, a home -rule city, hereinafter referred to as "City", and FOREST CREEK HOMEOWNERS ASSOCIATION, hereinafter referred to as "Purchaser." For and in consideration of the premises and the mutual agreements, covenants, and conditions hereinafter set forth, the parties hereto contract and agree as follows: Article I. Provision of Reuse Water Service 1.01. City agrees to sell Purchaser reuse water service required by Purchaser for irrigation and/or other non-domestic uses on an as -needed basis, for the common areas in the Forest Creek subdivision, such common areas are referred to herein as the "Property." 1.02. City's obligation to provide reuse water service under this Contract is subject to the capacity of City's facilities to provide reuse water service to Purchaser. The City will make reasonable efforts to provide a minimum of 3.0 million gallons of reuse water per month. 1.03. It was necessary to construct certain improvements to the wastewater treatment plant and the HOA has paid to the City the sum of $45,000 as its share of the cost of said improvements. Article II. Rates 2.01. Purchaser agrees to pay City for all reuse water delivered to Purchaser plus the base charges as provided below. Reuse water will be delivered to Purchase through four separate meters. Purchaser will pay a base charge for each meter based upon each meter's size as set forth below: a. The monthly base charge for the 5/8" meter located at Red Bud Lane and Forest Creek Drive shall be $10.38. b. The monthly base charge for the 2" meter located at St. Andrews and Forest Creek Drive shall be $68.86. c. The monthly base charge for the 2" meter located at Turnberry and Forest Creek Drive shall be $68.86. d. The monthly base charge for the 3/4" meter located at Red Bud Lane and Bobby Jones shall be $14.46. The Purchaser shall also pay an initial volume charge of $1.76 per 1,000 gallons used. The base 4 charge and volume charge shall be seventy-five percent (75%) of the bottom tier potable water rate adopted by the City Council for the various meter sizes, as amended from time to time. Purchaser understands and agrees that the rates and charges provided for herein are subject to adjustment if the meter size changes, or if the City Council adopts an ordinance changing the City's potable water rates. 2.02. City shall render a monthly bill to Purchaser for reuse water consumed. Payment shall be made no later than the tenth (10th) day following the mailing of the bill. Failure by Purchaser to make a payment when and as specified will give City the option to terminate all obligations of City under this Contract. 2.03. Purchaser shall be subject to all provisions of the Utility Billing Policy contained in Sec. 44-31 of the Round Rock Code of Ordinances (2010 Edition), and as amended from time to time. Article III. Compliance with Ordinances 3.01. Purchaser agrees to comply with all of City's ordinances as they now exist or as they are amended from time to time regarding the use of reuse water. Article IV. Purchaser's Obligations, Responsibilities and Indemnification 4.01 Purchaser acknowledges that the reuse water provided by City is not potable and is not suitable for any domestic use or purpose. THE REUSE WATER DELIVERED PURSUANT TO THIS CONTRACT IS NOT SAFE FOR HUMAN CONSUMPTION. The reuse water is intended to be used only for the irrigation of outdoor plants and landscaping. Purchaser agrees to take all reasonable and necessary precautions to prevent the reuse water from being used for any other purpose. 4.02 Purchaser shall save and hold harmless City and its officers and employees from all claims and liabilities due to activities of itself and its officers, agents, or employees which are caused by or which result from the error, omission, or negligent act of Purchaser or of any person employed by Purchaser or under Purchaser's direction or control. Purchaser shall also save and hold City harmless from any and all expenses, including but not limited to reasonable attorney's fees which may be incurred by City in litigation or otherwise defending claims or liabilities which may be imposed on City as a result of such negligent activities by Purchaser, its officers, agents, or employees. Article V. Force Majeure 5.01. In the event either party is rendered unable, wholly or in part, by force majeure to carry out any of its obligations under this Contract, then the obligations of that party, to the extent affected by the force majeure and to the extent that due diligence is being used to resume performance at the earliest practicable time, shall be suspended during the continuance of the inability. The cause, as far as possible, shall be remedied with all reasonable diligence. The 5 term "force majeure" includes acts of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, orders of the government of the United States or the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraints of government and people, civil disturbances, explosions, breakage or accidents to equipment, pipelines, or canals, partial or entire failure of water supply, and any other inabilities of either party, whether similar to those enumerated or otherwise, that are not within the control of the party claiming the inability and that could not have been avoided by the exercise of due diligence and care. It is understood and agreed that the settlement of strikes and lockouts shall be entirely within the discretion of the party having the difficulty and that the requirement that any force majeure be remedied with all reasonable dispatch shall not require the settlement of strikes and lockouts by acceding to the demands of the opposing party if the settlement is unfavorable to it in the judgment of the party having the difficulty. Force majeure shall relieve City from liability to Purchaser for failure to provide water service due to an inability covered by this article. Force majeure shall not relieve Purchaser of its obligation to make payments to City as provided in this Contract. Article VI. Term 6.01. The term of this Contract shall be until September 30, 2021, or when the City Council adopts an ordinance establishing reuse water rates for all customers on the system, whichever first occurs. Article VII. Miscellaneous Provisions 7.01. Purchaser agrees that it is prohibited from selling or giving reuse water purchased herein to anyone else. 7.02. This Contract shall be construed under and in accordance with the laws of the State of Texas, and any and all actions brought to enforce the term of this Contract shall be brought in Williamson County. 7.03. This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and assigns where permitted by this Contract. 7.04. In case any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof, and this Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 7.05. This Contract constitutes the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting the within subject matter. 7.06. The violation by Purchaser of any of City's ordinances related to the use or disposition of reuse water shall render this Contract voidable at the option of City. 6 EXECUTED, in duplicate, at Round Rock, Williamson County, Texas, on the dates set out below the signatures below. ATTEST: Sara White, City Clerk 7 SELLER: CITY OF ROUND ROCK By: Alan McGraw, Mayor Date: PURCHASER: FOREST CREEK HOMEOWNERS ASSOCIATION By: Its Date: