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R-13-08-08-G5 - 8/8/2013RESOLUTION NO. R -13-08-08-G5 WHEREAS, the Forest Creek Homeowners Association desires to purchase reuse water for irrigation and/or other non-domestic uses on an as -needed basis, for the common areas in the Forest Creek subdivision; and WHEREAS, the City Council desires to enter into a Reuse Water Service Contract with the Forest Creek Homeowners Association, 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 Reuse Water Service Contract with the Forest Creek Homeowners Association, a copy of said Contract 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. ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: C5/P)4/14. RO.ttf-- SARA L. WHITE, City Clerk 0112.1304; 00279317 REUSE WATER SERVICE CONTRACT STATE OF TEXAS COUNTY OF WILLIAMSON § EXHIBIT „A» 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 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 c5edb679-4538-4c64-ac20-b951e6e80cde.docx understands and agrees that the rates 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 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, 2 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. 3 EXECUTED, in duplicate, at Round Rock, Williamson County, Texas, on the dates set out below the signatures below. ATTEST: Sara White, City Clerk 4 SELLER: CITY OF ROUND ROCK By: Alan McGraw, Mayor Date: PURCHASER: FOREST CREEK HOMEOWNERS ASSOCIATION By: Its Date: ROUND ROCK. TEXAS { PURPOSE n SSIOH PROSPERITY City of Round Rock Agenda Item Summary Agenda Number: G.5 Title: Consider a resolution authorizing the Mayor to execute a Reuse Water Service Contract with the Forest Creek Homeowners Association. 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 13-582 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. Following the improvements that are to be constructed by the Spring 2014, the FCHOA will be able to convert to the City's reuse water system. The FCHOA will pay 75% of the potable water base charge and a volumetric rate of 75% of the bottom tier potable water rates. The City will make reasonable efforts to provide a minimum of 3 million gallons of reuse water per month to the FCHOA. Staff recommends approval. City of Round Rock Page 1 Printed on 8/5/2013 EXECUTED ORIGINAL DOCUMENT FOLLOW STATE OF TEXAS 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 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 c5edb679-4538-4cb4-ac20-b951e6e80cde.docx understands and agrees that the rates 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 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, 2 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. 3 EXECUTED, in duplicate, at Round Rock, Williamson County, Texas, on the dates set out below the signatures below. SELLER: ATTEST: CITY OF ROUND ROCK 9144k_i ktikt-- By: Sara White, City Clerk Alan McGraw, Mayor Date: PURCHASER: FOREST CREEK HOMEOWNERS ASSOCIATION By: Its Date: 6PN/j 4