BCRUA_R-12-02-22-6BRESOLUTION NO. R-12-02-22-6B
WHEREAS, the Brushy Creek Regional Utility Authority ("BCRUA") desires to enter
into a Third Amendment to the Master Contract for the Financing, Construction and Operation of
the BCRUA Regional Water Treatment and Distribution Project, Now Therefore
BE IT RESOLVED BY THE BRUSHY CREEK REGIONAL UTILITY
AUTHORITY,
That the Board President is hereby authorized and directed to execute on behalf of the
BCRUA a Third Amendment to the Master Contract for the Financing, Construction and
Operation of the BCRUA Regional Water Treatment and Distribution Project, a copy of same
being attached hereto as Exhibit "A" and incorporated herein for all purposes.
The Board 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 22nd day of February, 2012.
GEO~:wit-J....::!II,p'-"':L-e~-id-:-t-------
Brushy Creek Regional Utility Authority
ATTEST:
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THIRD AMENDMENT TO TIlE MASTER CONTRACT FOR THE
FINANCING, CONSTRUCTION AND OPERATION OF THE
BCRUA WATER TREATMENT AND DISTRIBUTION PROJECT
THIS THIRD AMENDMENT TO THE MASTER CONTRACT FOR THE FINANCING,
CONSTRUCTION AND OPERATION OF THE BCRUA REGIONAL WATER TREATM.ENT AND
DISTRIBUTION PROJECT (the "Third Amendment") is dated and entered into as of the _ day of
___~, 2012, by and among the Brushy Creek Regional Utility Authority, Inc., (the "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 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"); and
WHEREAS, on the 22nd 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 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 20 th 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 to update and replace Exhibit D to the Contract; and
WHEREAS, the Parties now wish to again postpone the date on which the BCRUA Project is to
be operation from April 1,2012 to June 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 I
DEFINITIONS
Section 1.1 All terms used herein shall have the meanings assigned to them in the Contract, unless
the context clearly requires otherwise.
1 EXHIBIT 'W'
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-ApRI June 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
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 June 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
the last sentence of said Section 3.5 shall read as follows: liThe BCRUA shall ensure that all contracts for
the construction of the BCRUA Project provide that the BCRUA Project will be operational by it shall
hereafter state "June 1, 2012."
ARTICLE III
MISCELLANEOUS
Section 3.1 To the extent necessary to effect the terms and provisions of this Third Amendment, the
Contract is hereby amended and modified. In all other respects, the aforesaid Contract is hereby ratified
and confirmed.
Section 3.2 This Third 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.
2
IN WITNESS WHEREOF, the Parties hereto acting under authority of their respective governing
bodies have caused this Third Amendment to be duly executed as ofthe day and year ftrst above written.
(Signatures on Following Pages)
3
BRUSHY CREEK
AUTHORITY, INC.
REGIONAL UTILITY
Attest:
By:
George White, President
_
By:
Mitch Fuller, Secretary
_
4
CITY OF CEDAR PARK, TEXAS
By:
Bob Lemon, Mayor
_
Attest:
By:
LeAnn Quinn, City Secretary
_
5
CITY OF LEANDER, TEXAS
By: ----:~ _
John Cowman, Mayor
Attest:
By:
Debbie Haile, City Secretary
_
6
CITY OF ROUND ROCK, TEXAS
Attest:
By: _
By:
Sara White, City Clerk
_
7
THIRD AMENDMENT TO THE MASTER CONTRACT FOR THE
FINANCING,CONSTRUCTION AND OPERATION OF THE
BCRUA WATER TREATMENT AND DISTRIBUTION PROJECT
THIS THIRD AMENDMENT TO THE MASTER CONTRACT FOR THE FINANCING,
CONSTRUCTION AND OPERATION OF THE BCRUA REGIONAL WATER TREATM.ENT AND
D UTION PROJECT (tile "Third Amendment") is dated and entered into as of tlteZZ�ay of
2012, by and among the Brushy Creek Regional Utility Authority, [lie., (the"BCRUA"), a
non-profit corporation of tite State of Texas(the"State"),created and existing snider 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 2nd day of September, 2008 the Parties entered into that one certain Master
Contract for (lie Financing, Construction and Operation of the BCRUA Regional Water Treatment and
Distribution Project(tile"Contract");and
WHEREAS, on the 22nd day of January, 2009, (lie 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 to postpone the date on which the BCRUA Project is
to be operational from April I,2011 to April 1,2012; and
WHEREAS, oil the 20"' 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 to update and replace Exhibit D to the Contract;and
WHEREAS, the Parties now wish to again postpone the date on which the BCRUA Project is to
be operation from April 1,2012 to June 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 strfiiciency
of which are hereby conclusively acknowledged, and subject to the terms and conditions hereinafter set
forth,the Cities and the BCRUA tuutually agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 All terms used herein shall have the meanings assigned to them in the Contract, ttntess
the context clearly requires otherwise.
242338
ARTICLE It
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 done 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 fiiture 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
front 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
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 June 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
the last sentence of said Section 3.5 shall read as follows:
"The BCRUA shall ensure that all contracts for the construction of the BCRUA Project provide that the
BCRUA Project will be operational by It shall hereafter state"June 1,2012"
ARTICLE III
MISCELLANEOUS
Section 3.1 To the extent necessary to effect the terms and provisions of this Third Amendment, the
Contract is hereby amended and modified. In all other respects, the aforesaid Contract is hereby ratified
and confirmed.
Section 3.2 This Third 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 Third Amendment to be duty executed as of the day and yeas•first above written.
(Signatures on Following Pages)
BRUSHY CREEK REGIONAL UTILITY
AUTHORITY,INC.
By:
George WhitN President
Altest:
By:
Mitch FuLr,
Sec tail+
CITY OF CEDAR PARK,TEXAS
By:
Bob Lemon, �r
Attest:
By: 0>,)0e,e
LeAnn Quinn,City Secretary
5
CIT OF LEANDETEXAS
Z
By: -
in Cowman, Mayor
Attest:
r
By:
De e Haile,C
' ity Secretary
6
CITY OF ROUND ROCK,TEXAS
By: m
Al0- -Ic(Graw, Mayor
Attest:
By:� r. tw
Sara White,City Clerk
7
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