Contract - Brushy Creek Regional Wastewater System - 10/24/2024 INTERLOCAL AGREEMENT REGARDING
ALLOCATION OF COSTS FOR THE REHABILITATION OF
THE EAST WASTEWATER TREATMENT PLANT OF
THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
THIS INTERLOCAL AGREEMENT REGARDING THE ALLOCATION OF
COSTS FOR THE REHABILITATION OF THE EAST WASTEWATER TREATMENT
PLANT OF THE BRUSHY CREEK REGIONAL WASTEWATER SYSTEM
("Agreement") is entered into among the City of Austin, ("Austin"), the City of Cedar Park
("Cedar Park"), the City of Leander, ("Leander"), and the City of Round Rock, ("Round
fir`
Rock"), to be effective this the day ofb2024 (the "Effective Date.") In this
Agreement, Austin, Cedar Park, Leander, and Roun��Rock.. are sometimes individually referred to
as"Party" and collectively referred to as "Parties."
Recitals
WHEREAS, Austin, Cedar Park, and Round Rock entered into that certain Master
Contract for the Financing,Construction,Ownership,and Operation of the Brushy Creek Regional
Wastewater System dated December 8, 2009,with terms and conditions to jointly own and operate
the Brushy Creek Regional Wastewater System ("System") purchased from the Lower Colorado
River Authority("Original Master Contract"); and
WHEREAS, on June 4, 2010, the Parties entered into an Amended and Restated Master
Contract for the Financing,Construction, Ownership and Operation of the Brushy Creek Regional
Wastewater System, (the "Master Agreement"); and
WHEREAS, on June 9, 2011, the Parties entered into the First Amendment to the Master
Contract to amend and clarify the duties and responsibilities of the Operations Committee, and to
amend the provisions regarding the Capital Expense Budget; and
WHEREAS, on June 19, 2017, the Parties entered into that one certain Interlocal
Agreement Regarding the Allocation of Cost for the Re-rating and Expansion to the East
Wastewater Treatment Plant of the Brushy Creek Regional Wastewater System, to pursue
expansion of the East Wastewater Treatment Plant("WWTP"); and
WHEREAS, on July 13, 2017, the Parties entered into that one certain Interlocal
Agreement Regarding Allocation of Costs for the Expansion to the East Wastewater Treatment
Plant of the Brushy Creek Regional Wastewater System, to establish the terms and conditions of
the cost allocations to expand the WWTP to 30 MGD; and
WHEREAS,on September 21, 2023,the Parties entered into a Second Amendment to the
Master Contract to provide for Leander's purchase of an undivided interest in the East Treatment
Plant real property and the West Treatment Plant real property, as well as to modify the flow
calculation methodology; and
WHEREAS, on January 25, 2024, the Parties entered into that one certain Interlocal
Agreement Regarding Allocation of Costs for the Expansion to the East Wastewater Treatment
BCRWWS ILA for WWTP rehabilitation;CLEAN;v.5(002)
Plant of the Brushy Creek Regional Wastewater System (the "40 MGD Expansion"), whereby on
the Cities of Round Rock and Austin participate in all costs incurred in the expansion, and the
Cities of Cedar Park and Leander do not participate in any expansion related costs; and
WHEREAS,Section 3.7 of the Master Contract provides for the procedures to be followed
to accomplish the design and construction of Capital Improvements such as repair and
rehabilitation of System Components,including the execution of interlocal agreements such as this
Agreement; and
WHEREAS,the Parties have agreed to jointly pursue the rehabilitation of various System
Components of the WWTP, (the "Project") to meet or maintain Regulatory Requirements and to
improve operations of the System for the benefit of the Parties; and
WHEREAS, the purpose of this Agreement is to set forth the terms and conditions of the
allocation of costs for the rehabilitation of the WWTP, and pursuant to which the Parties will
participate in the costs and expenses related thereto.
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:
I.
DEFINITIONS
When used in this Agreement, capitalized terms not otherwise defined shall have the
meanings set forth below:
1.01 "Agreement" means this Interlocal Agreement Regarding the Allocation of Costs for the
Rehabilitation of the WWTP.
1.02 "Contractor(s)" means one or more of the firms engaged by the Parties to perform
Construction Services.
1.03 "Construction Services" means services provided by one or more firms to construct the
Proj ect.
1.04 "Construction Services Contract(s)"means those certain contracts for construction services
to be approved by the Parties pursuant to which the Contractor(s) shall provide Construction
Services.
1.05 "Cost Allocation Percentage" means the percentage of Project Costs to be paid by each
Party. The Cost Allocation Percentages are based on the Parties' capacity ownership in the 33.0
MGD capacity of the System. The Project Cost Allocation Percentages are set forth on Exhibit
"A" attached hereto.
1.06 "Effective Date"means the date set forth in the introductory paragraph of this Agreement.
1.07 "Master Agreement"means the Amended and Restated Master Contract for the Financing,
Construction, Ownership and Operation of the Brushy Creek Regional Wastewater System dated
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June 4, 2010, and as amended by the First Amendment to the Master Agreement entered into on
June 9, 2011.
1.08 "Operations Committee"or"OC' means the Operations Committee created in Section 4.6
of the Master Agreement.
1.09 "Project" means: the efforts to design, install. and construct the necessary rehabilitation
and repair of the WWTP outlined in this Agreement.
1.10 "Project Consultant(s)"means one or more of the firms engaged by the Parties to perform
Project Consulting Services.
1.11 "Project Consulting Contract(s)"means those certain contracts for engineering and related
services to be approved by the Parties pursuant to which the Project Consultant(s) shall provide
Project Consulting Services.
1.12 "Project Consulting Services" means the services required for the preliminary and final
engineering and other services to be performed by the Project Consultant(s)pursuant to the Project
Consulting Contracts in order to complete the objectives of the Project.
1.13 "Project Costs" means all costs and expenses incurred by the Parties in furtherance of the
Proj ect.
1.14 "Project Fund" means the funds contributed by the Parties for the Project in accordance
with Section 5.02 of this Agreement.
1.15 "System"means the Brushy Creek Regional Wastewater System.
1.16 "WWTP"means the East Wastewater Treatment Plant of the System.
II.
OPERATIONS COMMITTEE
2.01 Responsibility of the OC.
(a) The OC shall:
(i) Attend and participate in regular meetings with the Project
Consultant(s) and Contractor(s) to monitor the status of the Project and to provide
direction and recommendations with respect thereto;
(ii) Review and unanimously approve,in writing,reports for the Project
produced by the Project Consultant(s) and Contractor(s);
(iii) Review and unanimously approve, in writing, any revisions to the
scope to be performed by the Project Consultant(s) and Contractor(s);
(iv) Review and unanimously approve in writing other contracts
necessary for the completion of the Project;
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(v) Confirm in writing the final completion of Project; and
(vi) Address any other pertinent matters relating to the Project.
(b) The OC shall meet at regular intervals to review the matters over which it
has authority. The OC shall be diligent, prompt, and timely in reviewing and acting on matters
submitted to it.
III.
CONSULTANT SERVICES
3.01 Consultant Services.
(a) The Parties intend to enter into Project Consultant Contracts in the form
unanimously approved by the Parties.
(b) After the scope of Project Consultant Contracts is approved, including any
proposed changes to a Project Consultant's compensation, the Project Consultant Contracts may
only be modified by unanimous written authorization from the Parties, such authorization shall be
set forth in a"Supplemental Contract."
(c) The Parties agree that the final design of the Project will not be finalized
until the OC has reviewed and unanimously approved in writing such design.
(d) Within ten (10) business days of receipt of any preliminary and/or final
reports prepared by the Project Consultant(s), the members of the OC shall specify in writing to
each other any objections regarding the draft reports, and any proposed revisions thereto. If any
member of the OC fails to object in writing to the report within the ten (10)-business-day period,
then that member shall be deemed to have approved the draft report. In the event that any member
of the OC timely objects to the draft report, then the OC shall endeavor in good faith to resolve
the matter by unanimous agreement. If the OC cannot unanimously agree to the proper resolution
within fifteen (15) business days, then the OC shall refer the dispute to the respective City
Managers of the Parties. The City Managers shall work diligently and in good faith to resolve the
dispute as quickly as possible so as not to jeopardize the completion of the Project.
(e) The Parties agree that the design and funding for the design will include
only those systems and components the Parties unanimously agree are for rehabilitation only, and
no portions of the design will be for the purpose of increasing capacity to support the 40 MGD
Expansion.
3.02 Work Product.
(a) Any Party is entitled to copies of any work product produced by the Project
Consultant(s) in connection with the Project Consultant Services. The Party requesting a copy of
such information shall pay all reasonable costs incurred in preparing and furnishing the copies.
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(b) In accordance with, and subject to the terms and conditions set forth in the
Project Consultant Contracts, the Parties may utilize the work product produced by the Project
Consultant(s) for their own purposes.
IV.
CONSTRUCTION SERVICES
4.01 Construction Services.
(a) The Parties intend to enter into Construction Services Contracts in the form
unanimously approved by the Parties.
(b) After the scope of Construction Services Contracts are approved, the
Construction Services Contracts may only be modified by unanimous written authorization from
the Parties, such authorization shall be set forth in a"Supplemental Contract."
(c) The Parties agree that the Construction Services Contracts will not be
finalized until the OC has reviewed and unanimously approved in writing such Contracts.
V.
PROJECT COSTS.
5.01 Payment of Project Costs.
(a) All Project Costs shall be shared by the Parties as set forth in Exhibit"A"
attached hereto.
(b) The Parties agree that Project Consultant(s) and Contractor(s) will be
instructed to send all invoices to Round Rock and that upon receipt of each invoice from the Project
Consultant(s)and Contractor(s),Round Rock shall review the invoice and confirm that the Project
Consulting Services and/or Construction Services have been completed in accordance with the
request for payment.
(c) Upon Round Rock's approval of each invoice for Project Costs, Round
Rock will transmit a copy of the approved invoice to each Party's representative on the OC.Within
ten(10)business days of receipt of the invoice for payment, the members of the OC shall specify
in writing to Round Rock any objections regarding the invoice for payment. If any member of the
OC fails to object in writing to the invoice within the ten(10)business day period,then the Party
represented by such OC member shall be deemed to have approved the invoice for payment. In
the event that any member of the OC timely objects to the invoice,then the matter shall be resolved
in accordance with the following procedures:
(i) If the objection relates to the performance of work or services by a
Project Consultant,then the OC shall exercise all rights to which the Parties
are entitled under the Project Consulting Contract or Construction Contract
to resolve the dispute, require correction of the defective work, and
otherwise address the concern of the objecting member of the OC.
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(ii) In the event that any member of the OC objects to an invoice for
reasons not related to the performance of work or services by the Project
Consultant or Contractor, then the OC shall endeavor in good faith to
resolve the matter by unanimous agreement. If the OC cannot unanimously
agree to the proper resolution within thirty(30)calendar days of the date of
written objection, then the invoice shall be paid as received; provided,
however, that any Party may subsequently seek a determination of the
dispute through the dispute resolution process set forth in Sec. 5.03 below,
and the allocation of costs between the Parties shall be adjusted in
accordance with such determination. Any such request for dispute
resolution must be brought within thirty (30) calendar days of the date of
written objection.
(iii) In the event that Project Costs exceed agreed upon estimates, then
the OC must approve such overruns by unanimous agreement. If the OC
cannot unanimously agree, then the matter shall be submitted to the City
Managers for resolution as set forth in Sec. 5.03.
(d) The Parries agree that the reasonable compensation cost for Round Rock's
performing the aforesaid financial administration and other general administrative services is the
sum of$2,000 per month, beginning when the first Project Consultant Contract is executed, and
ending with the completion of the construction of the Project, which costs shall be shared and
allocated among the Parties(including Round Rock)according to the Cost Allocation Percentages
set forth in Exhibit"A".
(e) In the event of termination of this Agreement prior to the completion of the
Project, all Parties shall provide payment of their pro rata share of the Project Costs incurred prior
to and through the date of the termination.
(f) The Parties agree that construction of the Project will occur in subsequent
fiscal years subject to the approval of and appropriation of funds by the governing body of each
Party, and no funding for construction will be paid or authorized by the Parties until October 1,
2025.
5.02 Project Fund.
(a) The Parties shall contribute monies to the Project Fund in accordance with
the following provisions:
(i) Within ten(10)calendar days of execution of the Project Consulting
Contract(s), each Party shall deposit into the Project Fund a sum, which
represents twenty five percent(25%)of each Party's share of the estimated
Project Costs for Project Consulting Services. The Project Fund shall be
placed in an interest-bearing account, and the interest shall become part of
the Project Fund, with each Parries share of interest as based on the Cost
Allocation Percentages set forth in Exhibit"A"to be credited toward each
Parties cost responsibility.
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(ii) Within ten (10) calendar days of execution of the Construction
Services Contract(s), each Party shall deposit into the Project Fund a sum,
which represents twenty-five percent (25%) of each Party's share of the
estimated Project Costs for construction. The Project Fund shall be placed
in an interest-bearing account, and the interest shall become part of the
Project Fund, with each Parties share of interest as based on the Cost
Allocation Percentages set forth in Exhibit "A" to be credited toward each
Parties cost responsibility. Payment into the Project Fund for construction
of the Project is subject to Section 5.01(f) of this Agreement, and will not
be paid until after October 1, 2025.
(iii) At such time as the balance in the Project Fund is substantially
depleted, as determined in Round Rock's reasonable discretion, Round
Rock shall provide written notice (by email or otherwise) thereof to the
other Parties, each of which shall have thirty (30) calendar days to deposit
into the Project Fund an additional payment, in the same amount as
originally deposited. Each notice by Round Rock shall be accompanied by
a written accounting report that identifies in reasonable detail all prior
expenditures from the Project Fund.
(b) In the event that there are remaining funds, including accumulated interest,
within the Project Fund upon final completion of the Project, then Round Rock shall promptly
divide and remit within 30 calendar days such funds to the Parties on a pro rata basis according to
the percentage of all Project Costs previously paid by each of the Parties. Payment shall be
accompanied by a written accounting describing the basis for calculation of payment to each Party.
5.03 Disputes. In the event of any disputes among the Parties, the Parties agree that the City
Managers shall work diligently and in good faith to resolve the dispute as quickly as possible so
as not to jeopardize the completion of the Project.
VI
GENERAL PROVISIONS
6.01 Authority. This Agreement is made in part under the authority conferred in Chapter 791,
Texas Government Code and Section 552.001, Texas Local Government Code.
6.02 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 will not be affected and this Agreement will be construed as if the
invalid portion had never been contained herein.
6.03 Payments from Current Revenues. Any payments required to be made by a Party under
this Agreement will be paid from current revenues or other funds lawfully available to the Party
for such purpose. The obligation of Parties to make payments to Round Rock will not constitute a
general obligation or indebtedness of the Parties that obligate a Party to levy or pledge any revenue
from taxes.
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6.04 Cooperation. The Parties agree to cooperate at all times in good faith to effectuate the
purposes and intent of this Agreement.
6.05 Entire Agreement. Except as otherwise expressly provided herein, this Agreement
contains the entire agreement of the Parties regarding the sharing of costs for the Project
Consulting Services and supersedes all prior or contemporaneous understandings or
representations, whether oral or written, regarding the subject matter. The Parties confirm that
further agreements regarding the Project are contemplated and will not be affected or limited by
this Agreement.
6.06 Amendments.Any amendment of this Agreement must be in writing and will be effective
if signed by the authorized representatives of the Parties.
6.07 Applicable Law;Venue.This Agreement will be construed in accordance with Texas law.
Venue for any action arising hereunder will be in Williamson County, Texas.
6.08 Notices. Any notices given under this Agreement will be effective if(i) forwarded to a
Party by hand-delivery; (ii) transmitted to a Party by confirmed telecopy; or (iii) deposited with
the U.S. Postal Service,postage prepaid, certified, to the address of the Party indicated below:
AUSTIN: P.O. Box 1088
Austin, Texas 78767
Attn: Director, Austin Water
Telephone: (512) 972-0109
with copy to: City Law Department
P.O. Box 1088
Austin, Texas 78767
Attn: Division Chief, Utility& Regulatory
Division
CEDAR PARK: 450 Cypress Creek Road, Bldg. 1
Cedar Park, Texas 78613
Attn: Kenneth Wheeler
Telephone: (512)401-5550
Email:kenneth.wheeler@cedarparktexas.gov
with copy to: J.P LeCompte
City Attorney
450 Cypress Creek Road, Bldg. I
Cedar Park, Texas 78613
Email: JP.LeCompte(&cedarparktexas.gov
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ROUND ROCK: 221 East Main
Round Rock, Texas 78664
Attn: Michael Thane
Telephone: (512) 218-3236
Email: mthanel(&roundrocktexas.gov
with copy to: Steve Sheets
309 E. Main Street
Round Rock, Texas 78664-5264
Telephone: (512)255-8877
Email: steve(&scrrlaw.com
LEANDER: P.O. Box 319
Leander, Texas 78646-0319
Attn: City Manager
Telephone: (512) 259-1178
Email: tparton@leandertx.gov
with copy to: Paige Saenz
223 W. Anderson Lane, Suite A-105
Austin, Texas 78752
Telephone: (512) 323-5778
Email: paige(a)ci attorneytexas.com
6.09 Force Majeure. The Parties shall not be deemed in violation of this Agreement 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.
Force majeure shall not relieve the Parties of their obligation to make payment to Round Rock as
provided in this Agreement.
6.10 Independent Contractor. Each of the Parties shall have the status of an independent
contractor hereunder and shall be solely responsible for the proper direction of its employees
hereunder and each Party's employees shall not be considered employees or borrowed servants of
any of the other parties for any reason.
6.11 No Third-Party Beneficiaries. This Agreement shall inure only to the benefit of the
Parties and third parties not privy to this Agreement shall not,in any form or manner,be considered
a third-party beneficiary of this Agreement.
6.12 Conflict. If there is a conflict between the Master Agreement, as amended, and this
Agreement, the provisions of this Agreement shall control.
6.13 Termination. This Agreement may be terminated by mutual agreement of the Parties. If
this Agreement is terminated by the Parties prior to its completion of Project Consulting Services,
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then the terms and conditions of the Master Agreement shall control. Any outstanding balance
within the Project Fund will be returned proportionally in accordance with the applicable Exhibit
percentages. The Parties shall then work cooperatively with due diligence to determine how to
address existing and future wastewater treatment capacity issues.
6.14 Default. In the event that one Party believes that the other Party is in default of any of the
provisions in this agreement, the non-defaulting party will make written demand to cure to the
defaulting party and give the defaulting party up to thirty days to cure the default or,if the curative
action cannot reasonably be completed within thirty days, the defaulting party will commence the
curative action within thirty days and thereafter diligently pursue the curative action to completion.
This period must pass before the non-defaulting party may initiate any remedies available to the
non-defaulting party due to such default. The non-defaulting party shall mitigate direct or
consequential damages arising from any default to the extent reasonably possible under the
circumstances. The parties agree that they will use their best efforts to resolve any disputes and
may engage in mediation or other alternative dispute resolution methods as recommended by the
laws of the State of Texas before initiating any lawsuit to enforce their rights under this agreement.
Nothing in this agreement shall be construed to limit a Party's right to recover damages or to seek
other appropriate curative remedies if a breach of contract action is filed by a non-defaulting party
to this Agreement.
6.15 Counterparts. Effect of Partial Execution. This Agreement may be executed
simultaneously in multiple counterparts,each of which will be deemed an original,but all of which
will constitute the same instrument.
6.16 No Waiver of Immunities or Defenses. Nothing in this Agreement shall be deemed to
waive,modify, or amend any immunity or legal defense available at law or in equity to the Parties,
their past or present officers, employees, or agents or employees, nor to create any legal rights or
claim on behalf of any third party.
6.17 Authority. Each Party represents and warrants that it has the full right, power, and
authority to execute this Agreement.
(SIGNATURES ON FOLLOWING PAGES)
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CITY OF AUSTIN:
By:
Shay Ralls alson, .E., Director, Austin Water
Date: 12/17/2024
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CITY OF ROUND ROCK:
ATTEST:
Y-1 By:
Mcagan S i='nkc City Clerk Craig Morg , Mayor
A-Kr�F('a -XiIA
Date:
12
CITY OF CEDAR PARK:
ATTEST:
By:
LeAnn Quinn, City Secretary J' nniman-Morin, Mayor
Date:
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CITY OF LEANDER:
ATTEST:
�af-Q Crabber By:
Dara Crabtree, City Secretary N1a'ColleMe Thompson, tMayo Pro Tem
!/
Date: I I U • Zo "1
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EXHIBIT A
Allocation of Project Costs
(For 33 MGD Capacity of the System)
Qfty Ownership Capacity (MOD) Cost Allocation
Round Rock 20.05 60.76%
Leander 4.23 12.82%
Cedar Park 5.46 16.55%
Austin 3.26 09.87%
TOTALS 33.00 100.00%
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