R-2021-164 - 6/24/2021 RESOLUTION NO. R-2021-164
WHEREAS, Chapter 791 of the Texas Government Code, V.T.C.A., authorizes local
governments and agencies of the state to enter into agreements with one another to perform
governmental functions and services, and
WHEREAS, the City of Round Rock ("City") wishes to enter into an Interlocal Agreement
with Brushy Creek Municipal Utility District for emergency water service,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 an
Agreement with Brushy Creek 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 24th day of June, 2021.
CRAIG ORGA Mayor
City of Round R , Texas
ATTEST:
Q k�N �� I I
MEAGAN SP16KS, Dep City Clerk
0112.20212;00474173
EXHIBIT
„A►,
INTERLOCAL AGREEMENT FOR EMERGENCY WATER SERVICE
BETWEEN THE CITY OF ROUND ROCK AND
BRUSHY CREEK MUNICIPAL UTILITY DISTRICT
THE STATE OF TEXAS '
COUNTY OF WILLIAMSON '
This Interlocal Agreement for Emergency Water Supply(hereinafter,"Agreement")is entered into as
of this day of , 2021, by and between the City of Round Rock, a home rule
municipality, hereinafter referred to as "Round Rock," and Brushy Creek Municipal Utility District, a
Texas conservation and reclamation District,hereinafter referred to as"Brushy Creek MUD".
Recitals
1. Round Rock and Brushy Creek MUD each own and operate extensive water utility systems
providing water service to customers in Williamson County.
2. Round Rock and Brushy Creek MUD recognize that having an interconnect between their
two water systems provides important benefits to both Parties.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises and
undertakings set forth below, Round Rock and Brushy Creek MUD hereby contract and agree as
follows:
ARTICLE I.
Definitions
1.1 "Emergency": an Act of God or similar unforeseen and unpreventable catastrophic
circumstance or disaster that significantly affects either Party's ability to provide potable water to its
customers. The term shall not include drought conditions, service interruptions for scheduled
maintenance, lapse of raw water supply contracts or other legal impediments,over-commitment of
supply, or replacement or construction of facilities or similar events that are preventable by the
exercise of due diligence, foresight, and planning.
1.2 Emergency Water Service":potable water service to be provided by one Party to the other Party
for a temporary period only in the event of and for the duration of an Emergency pursuant to the
terms and conditions of this Agreement.
1.3 "Party": Either Round Rock or Brushy Creek MUD.
1.4 "Parties": Both Round Rock and Brushy Creek MUD.
1.5 "Point ofDelivery": the existing points of connection between the Brushy Creek MUD water system
and the Round Rock water system, are designated as "M" on Exhibit "A" attached hereto, at which
0140.2020-2;00472649.doc
Emergency Water Service will be made available by the Providing Party to the Requesting Party in
accordance with the terms of this Agreement.
1.6 "Point of Delivery Meter": the meter(s)that are installed at the Point of Delivery to be used for
measuring the quantity of Emergency Water Service furnished by either Party to the other Party under this
Agreement.
1.7 "Providing Party": the Party providing Emergency Water Service to the Requesting Party.
1.8 "Requesting Party": the Party requesting Emergency Water Service from the Providing Party.
1.9 "Volumetric Rate": the residential customer volume rate for Rate Block Four asset forth in Sec.44-
32(a)(5)Code of Ordinances of the City of Round Rock,as amended from time to time.
1.10 "Water": potable water made available by either Party at the Point of Delivery in the event of an
Emergency, which water shall meet those requirements for human consumption and other domestic uses
promulgated by the Texas Department of Health,and/or the Texas Commission on Environmental Quality.
ARTICLE II.
Terms and Conditions for Emergency Water Services
2.1 Agreement to Provide Emergency Water Services. Subject to the terms and conditions of this
Agreement and the requirements of applicable law,each Party agrees to make available Emergency Water
Service to the other Party for the term of this Agreement.
2.2 Ownership,Operation and Maintenance of Facilities.
(a) Each Party shall own, operate and maintain all water system improvements, facilities,
equipment and appurtenances located on its respective side of the Point of Delivery in accordance with its
own maintenance and replacement schedules and standards. All such costs and expenses of operation,
maintenance,repair and replacement of each Parry's water system shall be paid by the Party, and the other
Party shall have no responsibility for any such costs or expenses.
(b) Each Party shall be solely responsible for design and construction of such improvements to
its water system as are necessary for the safe and efficient receipt,transportation,storage and distribution of
Emergency Water Service received from the other Party at the Point of Delivery. Neither Party shall be
responsible for any costs of the other Party related thereto,nor shall either Party be liable for damages to the
other Party's water system or to the water facilities of the other Parry's customers arising from the distribution
of Water received at the Point of Delivery hereunder.
2.3 Emergency Water Service.
(a) In the event of an Emergency, the Requesting Party may request the Providing Party to
provide Emergency Water Service at the Point of Delivery for a temporary period to assist the Requesting
Party in responding to such Emergency, and the Providing Party shall provide Emergency Water Service
subject to the following conditions:
(i) A good faith determination by the Providing Party that a bona fide Emergency exists,
and that delivery of Emergency Water Service to the Receiving Party will not endanger the public
health, safety or welfare of the Providing Parry's citizens and customers;
2
(ii) Emergency Water Service will be provided only for the shorter of the following
periods:
1) the reasonable duration of the Emergency giving rise to the request for
emergency water service;
2) the reasonable duration needed to repair damage to the water system
occasioned by such Emergency;
3) the duration of the Providing Parry's ability to provide Emergency Water
Service to the Requesting Party,as reasonably determined by the Providing
Party;or
4) two(2)weeks.
(iii) In the event that the Emergency exceeds the shortest of the foregoing periods,the
Requesting Party may make written request to the Providing Party to continue Emergency Water
Service beyond said initial period. The Providing Party may continue or resume such Emergency
Water Service for an additional period up to such period as the Providing Party shall determine
appropriate and necessary, but only if the Providing Party determines in good faith that the
Emergency giving rise to the initial request for Emergency Water Service has not been abated,that
the Requesting Party has exercised reasonable diligence in attempting to remove the disability
giving rise to the initial request for Emergency Water Service,and that Water in excess ofthe needs
of the Providing Parry's customers continues to be available to provide Emergency Water Service
to the Requesting Party.
2.4 Effect of Mandatory Water Conservation Measures. Notwithstanding anything herein to the
contrary, the Parties agree that, if the Party providing the Emergency Service institutes mandatory water
conservation measures for its own customers,that Party may deny the other Parry's request for Emergency
Service for the duration of the mandatory conservation measures instituted by the Party providing the
Emergency Service.
ARTICLE III.
METERING
3.1 Measurement.
(a) The Providing Party shall own, operate, maintain and read the Point of Delivery Meter to
record all Water delivered under this Agreement from the Providing Party to the Requesting Party.
(b) The Providing Party shall keep records of all measurements of Water delivered to the
Requesting Party through the Point of Delivery as recorded by the Point of Delivery Meter.
3.2 Calibration.
(a) If,as a result of any test,the Point of Delivery Meter is found to be registering inaccurately
(more than 5%higher or lower than calibrated volumes),the readings of the meter shall be corrected at the
rate of its inaccuracy for any period which is definitely known or agreed upon.
(b) If the Point of Delivery Meter is out of service or in need of repair such that the amount of
Water delivered cannot be ascertained or computed from the reading thereof,the Water delivered through the
3
period such meter is out of service or out of repair shall be estimated and agreed upon by the Parties based
upon the basis of the best data available. If the Parties fail to agree on the amount of Water delivered during
such inoperable period,the amount of Water delivered may be estimated by:
(i) correcting the error if the percentage of the error is ascertainable by calibration tests
or mathematical calculation;or
(ii) estimating the quantity of delivery by deliveries during the preceding periods under
similar conditions when the meter was registering accurately.
(c) If a Point of Delivery Meter is consistently registering inaccurately,the Party owning and
installing the meter shall repair,replace or rehabilitate the meter,as determined by such,and all costs related
thereto shall be borne by said Party.
ARTICLE IV.
RATES AND CHARGES
4.1 Connection Fee. Neither Party shall charge a connection fee to the other Party for the provision of
Emergency Water Service under this Agreement.
4.2 Volumetric Rate. The Requesting Party shall pay to the Providing Party the Volumetric Rate for all
Water delivered through the Point of Delivery Meter for Emergency Water Service.
4.3 Payment Terms.
(a) The Providing Party shall, upon completion of Emergency Water Service, submit to the
Requesting Party an itemized statement of the amount of Emergency Water Service furnished,as measured at
the Point of Delivery Meter, and a statement of the payment due for such services. The statement shall
specify a due date, which date shall not be less than fifteen(15) days after the date of the statement. The
statement shall be paid on or before the due date.
(b) In the event that the Requesting Party fails to make timely payment in full by the due date,
then the Providing Party shall furnish a late notice to the Requesting Party. If the Requesting Party does not
provide payment within fifteen(15)days of receipt of the late notice,then the Requesting Party shall pay a
late payment charge of two percent(2%)of the amount of the statement for each calendar month or fraction
thereof that the statement remains unpaid;provided,however,that such rate shall never be usurious or exceed
the maximum rate permitted by law.
(c) If any Party remains delinquent in any payments due hereunder for a period of sixty (60)
days, then the Party due payment may exercise any legal right or remedy to which it is entitled, including
termination of this Agreement.
ARTICLE V.
REMEDIES
5.1 General. If any Party fails to comply with its obligations in accordance with the notice and
opportunity to cure provisions set forth in Section 5.3 below,the other Party shall have the right to request
any court,agency or other governmental authority of appropriate jurisdiction to grant any and all remedies
which are appropriate to assure conformance to the provisions of this Agreement. The defaulting Party shall
be liable to the other for all costs actually incurred in pursuing such remedies,including reasonable attorneys'
fees,and for any penalties or fines as a result of the failure to comply with the terms.
4
5.2 Disputed Payment. If either Party at any time disputes the amount to be paid by it to the other Party,
the Party shall nevertheless promptly make the disputed payment or payments,but the disputing Party shall
thereafter have the right to seek a determination whether the amount charged by the other Party is in
accordance with the terms of this Agreement.
5.3 Notice and Opportunity to Cure. Notwithstanding any provision in this Agreement to the contrary,
if either party (referred to herein as the"Defaulting Party") fails to comply with its obligations under this
Agreement or is otherwise in breach or default under this Agreement(collectively,a"Default")then the other
party (referred to herein as the "Non-Defaulting Party") shall not have any right to invoke any rights or
remedies with respect to any Default until and unless:(i)the Non-Defaulting Party delivers to the Defaulting
Party a written notice(the"Default Notice")which specifies all of the particulars of the Default and specifies
the actions necessary to cure the Default; and(ii)the Defaulting Party fails to cure,within thirty(30)days
after the Defaulting Parry's receipt of the Default Notice,any matters specified in the Default Notice which
may be cured solely by the payment of money or the Defaulting Party fails to commence,within a reasonable
period of time after receipt of the Default Notice(to be determined according to the nature of the breach or
default),the cure of any matters specified in the Default Notice which cannot be cured solely by the payment
of money,or fails to thereafter pursue curative action with reasonable diligence to completion.
ARTICLE VI.
TERM AND TERMINATION
6.1 Term. This Agreement shall be effective as of the Effective Date,and shall continue in effect until
September 30,2040 unless earlier terminated by either Party in accordance with section 6.2.
6.2 Termination.
(a) Either Party to this Agreement may terminate this Agreement by providing not less than 60
days written notice of termination to the other Party.
(b) Either Party to this Agreement may terminate this Agreement as a result of a material breach
by the other Party by providing written notice of termination after providing the defaulting Party notice and
opportunity to cure in accordance with the terms of this Agreement.
Upon termination of this Agreement,each Party shall discontinue taking Water from the other Party.
Each Party may physically seal or disconnect the Point of Delivery Meter or any other components in its
water system as may be necessary to prevent the further delivery or receipt of Water at the Point of Delivery.
ARTICLE VII.
GENERAL PROVISIONS
7.1 Authority. This Agreement is made in part under the authority conferred in Chapter 791, Texas
Government Code.
7.2 Force Majeure. In the event that any Party is rendered unable,wholly or in part,to perform
any of its obligations under this Agreement(by reason of failure or national moratorium of operation of the
banks,transfer agents,brokers,stock exchanges or modes of transportation;or work stoppages or restraint by
court order or other public authority; or action or inaction concerning governmental or regulatory
authorizations;or transportation delay;or death or personal injury of a representative of either Party whose
signature is necessary),upon the provision of written notice which fully relates the particulars of the claimed
force majeure, including but not limited to the dates on which it commenced and ceased or is expected to
cease by the Party claiming force majeure to the other Party as soon as is reasonably practicable after the
5
occurrence of the cause relied upon,the obligations of the Party claiming force majeure,to the extent they are
affected by the force majeure,shall be suspended during the continuance of any inability of performance so.
This Agreement shall not be terminated by reason of any such cause but shall remain in full force and effect.
Either Party rendered unable to fulfill any of its obligations under this Agreement by reason of force majeure
shall exercise the utmost diligence to remove such inability.
7.3 Modification. This Agreement shall be subject to change or modification only with the mutual
written consent of the Parties.
7.4 Sole Agreement. This Agreement constitutes the sole and only agreement of the Parties
concerning the subject matter hereof and supersedes any prior understanding or oral or written agreements
between the District and the City relating thereto.
7.5 Captions. The captions appearing at the first of each numbered section or paragraph in this
Agreement are included solely for convenience and shall never be considered or given any effect in
construing this Agreement.
7.6 Waiver. Failure to enforce or the waiver of any provision of this Agreement or any breach or
nonperformance by the District or the City shall not be deemed a waiver by the District or the City of the right
in the future to demand strict compliance and performance of any provision of this Agreement
7.7 Severability. The provisions of this Agreement are severable,and if any provision or part of this
Agreement shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any
reason,the remainder of this Agreement and the application of such provision or part of this Agreement to
other persons or circumstances shall not be affected thereby.
7.8 Cooperation. Each Party hereby agrees that it will take all actions necessary to fully carry out the
purposes and intent of this Agreement.
7.9 Addresses and Notice. All notices, demands, requests, and other communications between the
Parties required or permitted hereunder shall be in writing,except where otherwise expressly provided herein,
and shall be deemed to be delivered when actually received;provided that if the communication is sent by
depositing it in a regularly maintained receptacle for the United States mail,registered or certified,postage
prepaid,addressed to the appropriate addressee as follows,or to such other location or address for a party for
which notice has been given by such party in the same manner, the same shall be deemed to have been
received on the second mail delivery day following the day on which the communication is so postmarked.
If to Brushy Creek MUD:
Brushy Creek Municipal Utility District
16318 Great Oaks Drive
Round Rock,Texas 78681
If to Round Rock:
City of Round Rock
221 East Main Street
Round Rock,Texas 78664
6
7.10 Assignability. Neither Party may assign its interests in this Agreement without the prior written
consent of the other Party.
IN WITNESS WHEREOF,the Parties hereto have caused this instrument to be signed, sealed and
attested in duplicate by their duly authorized officers,this the day of ,2021.
BRUSHY CREEK MUNICIPAL UTILITY
DISTRICT
By:
Donna B. Parker, President
Kim Filiatrault, Secretary
CITY OF ROUND ROCK,TEXAS
By:
Craig Morgan. Mayor
Sara White,City Clerk
7
Exhibit"A"
Point of Delivery
8
FM 1431
0
u
O Iia
WNeil
M
\y\aU` yisLa .-lN nil.
°a�, BRUSH CREEK
GreantsH der`Dr
MUD �ad� fiUden
Glen Park
MMyf..w Park NORTH o
410*
Q
e0\ w Sam ,; �-
\dn o Bass R M`�O P.'wd Glen
a10 Greanbeh
7 m
l" Silvered° u �"
` u °`a5ea"SBv
�nqs Fah NunA �, � O
c Sam 55 Rd W
o ,y' g words
`L 3 Park
o - ree� wept
9. dN Wood Rd Bend Crr H �.
j 4 ti �� an Rd Psr C n J o
E c
m Rw'ch Tra�J or 6 O tYi rn °
�5�� a � s �
Remr i% J7
y _ hDr° = p. ."9h haater Blvd °s
U Rd o M c p a
F° O
d 4`n �a fl1 Par4L °° C
V � 6
o ��s °tganryB yCFNk can o00` �O D c` Rountl
M r r Ro
m 5
_ e8ry m
Of CAampon M p ,
O Perk v°
U x d\��a 3r ,° p
n
0 BmshYC�ek .. r.Ran,n p � c
Q Pk
d ustw Creek g
a
P.A d�suite,
° BRUSH CREEK o Rwndk
7 Q
r MUD
U g,va
o *,an° o
$0 E SOUTH14
N
O z
V. S m
3 0- O,.
N p
3
°bk Dr c go
OS c �a
Casdc o
V)
Neenah Ave
D
N
C7
rL
FV
r`aBtvd
Austin Cor4Z&4tollege,County of Williamson,Ear, ERE,Garmin,
p W / INCREMENT P,NGA,USGS
Current Time: 2/1/2021 1:07 PM
N Exhibit A
Points of Delivery Between J�RaOUNO
City of Round Rock and Brushy Creek ROCKTEXAS
IES 11Ne ENVIeeNMENTILL SEVVIQS
MUD