BCRUA_R-09-02-11-5A Resolution Na. �t " 02,' /�°r�
RESOLUTION APPROVING THE FIRST AMENDMENT TO THE MASTER
CONTRACT FOR THE BRUSHY CREEK REGIONAL UTILITY AUTHORITY,
INC., AND OTHER MATTERS IN CONNECTION THEREWITH.
THE STATE OF TEXAS
BRUSHY CREEK REGIONAL UTILITY AUTHORITY,INC.
WHEREAS, there has been presented and approved by the City Council of each
of the participating and founding members of the Brushy Creek Regional Utility
Authority, Inc.("BCRUA") namely, the City of Leander, Texas ("Leander"),the City of
Round Rock, Texas ("Round Rock")the City of Cedar Park, Texas ("Cedar Park"),
(collectively, the Member Cities and the"Parties") a draft of the First Amendment to the
Master Contract for the financing, construction and operation of the BCRUA Regional
Water Treatment and Distribution Project(the"First Amendment to the Master
Contract")between the Member Cities and the BCRUA,pursuant to which the BCRUA
will construct, finance, operate and maintain water treatment and distribution facilities for
the benefit of the Member Cities; and
WHEREAS, the Parties wish to clarify their agreement to allow for a limited
delay in the issuance of bonds and commencement of construction of the BCRUA Project
and provide for a release and withdrawal from the Contract under certain conditions;
WHEREAS, it is hereby further officially found and determined that public
notice of the time,place, and purpose of this meeting was given, all as required by Texas
Government Code, Chapter 551.
NOW,THEREFOR,BE IT RESOLVED BY THE BOARD OF DIRECTORS OF
THE BRUSHY CREEK REGIONAL UTILITY AUTHORITY,INC.:
SECTION 1. RECITALS. The recitals set forth in the preamble hereof are
incorporated herein and shall have the same force and effect as if set forth in this Section.
SECTION 2. FIRST AMENDMENT TO THE MASTER CONTRACT. This
First Amendment to the Master Contract is hereby approved and the President and
Secretary of the Board are hereby authorized and directed to execute the First
Amendment to the Master Contract in substantially the form and substance attached
hereto as Exhibit "B", with such changes as may be approved by general counsel and
bond counsel to the BCRUA.
SECTION 3. IMMEDIATE EFFECT. This Resolution shall take effect
immediately from and after its adoption in accordance with the law
SECTION 4. OPEN MEETINGS. It is hereby officially found and determined
that the meeting at which this ordinance is passed was open to the public as required and
that public notice of the time, place, and purpose of said meeting was given as required
by the Open Meetings Act, Chapt. 551, Tex. Gov't, Code.
---
PASSED AND APPROVED THIS r r L�'`"1 G k L) ,
resident
Brushy Creek Regional Utility Authority, Inc.
ATTEST:
retary
shy Creek Regional Utility Authority, Inc.
[SEAL]
2
FIRST AMENDMENT TO THE MASTER CONTRACT FOR THE FINANCING,
CONSTRUCTION AND OPERATION OF THE BCRUA
REGIONAL WATER TREATMENT AND DISTRIBUTION PROJECT
THIS FIRST AMENDMENT TO THE MASTER CONTRACT FOR THE
FINANCING, CONSTRUCTION AND OPERATION OF THE BCRUA REGIONAL WATER
TREATMENT AND DISTRIBUTION PROJECT (the "First Amendment") is dated and entered
into as of the 22nd day of January, 2009, 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, for several years the Cities have planned for the development and
construction of a new regional water treatment system to meet the potable water needs of each
City; and
WHEREAS, in order to facilitate a regional approach among the Cities, Leander and
Round Rock have agreed to accelerate their plans for additional water treatment plant capacity,
and Cedar Park has delayed the expansion of its existing water treatment plant and related
facilities;
WHEREAS, the Parties created the BCRUA for the purpose of constructing, owning and
operating the new regional water treatment system; and
WHEREAS, on the 2nd 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'), 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 Iine, new water
treatment plant, and water transmission mains; and
WHEREAS, when the Contract was executed, the Parties intended that the BCRUA
Project would be operational by April 1, 2011; and
WHEREAS, the Cities desire to delay the issuance of bonds and the commencement of
construction of the Project by several months; and
P-- 09-61 . 2-'2A�
00152262
WHEREAS, the Parties wish to clarify their agreement to allow for a limited delay in the
issuance of bonds and commencement of construction of the BCRUA Project and provide for a
release and withdrawal from the Contract under certain conditions;
WHEREAS, at this time the Parties believe that it would be beneficial to all of the Parties
to postpone the date on which the BCRUA Project is to be operational from April 1, 2011 to
April 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 1
DEFINITIONS
Section 1.1 All terms used herein shall have the meanings assigned to them in the Contract,
unless the context clearly requires otherwise.
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 April 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 any 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
2
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 April 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 where it says "April 1, 2011,"it shall hereafter state "April 1, 2012."
Section 2.4 Section 12.22, Withdrawal by and Release of a City is hereby added to the
Contract as follows:
Section 12.22. Withdrawal by and Release of a City. Regardless of anything
contained herein to the contrary, but prior to the issuance of bonds or other
obligations by either a City or the BCRUA for the BCRUA Project, any of the
three Cities, in its sole discretion, may elect to withdraw from this Contract
(hereinafter referred to as the "Withdrawing City") and the non-withdrawing
Cities (hereinafter referred to as the "Non-withdrawing City(ies)"), specifically
agree that the Withdrawing City is and shall be fully released from the Contract,
(i) for any reason prior to May 1, 2009; or
(ii) if the BCRUA has not sold bonds, or any Non-withdrawing City
has not otherwise provided for funding for its total allocations of the
BCRUA Project Costs through a separate bond issue on or before July 15,
2009.
The Withdrawing City's withdrawal from the Contract shall be effective upon the
Withdrawing City's written notice to the other Parties of its withdrawal as provided in
Section 12.7 of this Contract. Upon notice of such withdrawal, the Non-withdrawing
City(ies) and the BCRUA agree to release the Withdrawing City from this Contract and
upon such withdrawal and release, the Withdrawing City shall no longer be a party to and
shall be released from all obligations and liabilities of this Contract, including but not
limited to any obligations to make Annual Payments to the BCRUA. The Non-
withdrawing City(ies) agree that upon the provision of such notice by the Withdrawing
City pursuant to this section, the Withdrawing City's withdrawal and the Non-
withdrawing City(ies) release of the Withdrawing City shall be effective as provided
herein and shall not require further action by any Party. In addition, within ninety (90)
days of the notice of the Withdrawing City's withdrawal and release, the Withdrawing
City shall convey all of its interests in the Engineering Reports, Land Interests acquired
in the acquisition contracts listed herein below as (i) and (ii) by delivering to the Non-
withdrawing City(ies) all necessary and appropriate conveyance documents, deeds, bill of
sales, assignments, etc. that may be reasonably required by the Non-withdrawing
City(ies). Likewise, within said ninety (90) day period, the Non-withdrawing City(ies)
shall reimburse the Withdrawing City for the costs incurred by the Withdrawing City as
defined in and made pursuant to the following agreements: (i) the Easement Acquisition
Costs pursuant to the First Amended Interlocal Agreement Regarding Acquisition of
3
Easements for Construction of a Raw Water Transmission Line Along Trails End Road
effective July 24, 2008; and (ii) the Real Estate Acquisition Costs pursuant to the
Interlocal Agreement Regarding Acquisition of Real Property for a Regional Water
Treatment Plant Site effective January 3, 2008. The Withdrawing City is also released
from any further costs associated with the Interlocal Agreement Regarding Ancillary
Consulting Services For Regional Water System dated February 28, 2007 and any
operation and maintenance expenses associated with the New Hope waterline constructed
pursuant to the Interlocal Agreement Regarding Construction Of Regional Waterline
dated March 23, 2006.
In the event that Cedar Park is the Withdrawing City, Cedar Park specifically agrees to
the following:
(i) that despite its election to withdraw from the Master Contract Cedar Park
agrees to continue to be bound by the terms and provisions of the Interlocal
Agreement Regarding Construction of Regional Water Line, dated March, 2006;
and
(ii) that Cedar Park agrees not to oppose,but to reasonably cooperate with the
BCRUA's, Leander's and/or Round Rock's efforts to obtain legal rights from
LCRA or any other necessary person or entity to construct a floating barge and
intake point on the tract owned by LCRA which is also the location of Cedar
Park's existing floating barge and intake point.
ARTICLE III
MISCELLANEOUS
Section 3.1 To the extent necessary to effect the terms and provisions of this First
Amendment, the Contract is hereby amended and modified. In all other respects, the aforesaid
Contract is hereby ratified and confirmed.
Section 3.2 This First 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 First Amendment to be duly executed as of the day and year
first above written.
(SIGNATURES ON FOLLOWING PAGES)
4
BRUSHY CREEK REGIOUTILITY AUTHORITY, INC.
By:
Scott Rhode, President
Attest*
By:
ohn Cowman, Secretary
5
tL- o y
0
CITY OF CEDAR PARK,TEXAS
By:
Bob Lemon, Mayor
Attest:
By:
LeAnn Quinn, City Secretary
fz-oo-} _Z-Z-(Ar,ZL 6
CITU OF LEANDER, TEXAS
By: .
J Cowman, Mayor
Attest:
By: 440�� / & )
Debbie Haile, City Secretary
7
CITY OF ROUND ROCK, TEXAS
By: & ` 1 Y CI
Alan McGraw, Mayor
Attest:
By: iV• C
Sara White, City Secretary
8