BCRUA-2024-003 - 3/27/2024AGREEMENT BETWEEN PEDERNALES ELECTRIC COOPERATIVE, INC. AND
THE BRUSHY CREEK REGIONAL UTILITY AUTHORITY REGARDING
THE REGIONAL WATER TREATMENT AND TRANSMISSION PROJECT
This Agreement("Agreement") is entered into by and between the Brushy Creek Regional Utility
Authority, Inc. ("BCRUA"), a local government corporation composed of the Texas home-rule
cities of Cedar Park,Leander,and Round Rock(individually,the"City";collectively,the"Cities")
and Pedernales Electric Cooperative, Inc. ("PEC"), a Texas electric cooperative corporation
formed under Chapter 161 of the Texas Utilities Code.
RECITALS
WHEREAS, BCRUA was created by the Cities to design,construct and operate a regional
water transmission and treatment system (the"Water Project")to provide the Cities with drinking
water; and
WHEREAS, BCRUA has completed Phase IA of the Water Project which includes a
floating raw water pump station located on Lake Travis, a water treatment plant located in Cedar
Park, and associated transmission pipelines; and
WHEREAS, Phase 11 of the Water Project consists of a deep-water intake and maintenance
building located within the Village of Volente, a pump station located adjacent to the Travis
County Sandy Creek Park, and tunneled water conveyance pipelines; and
WHEREAS,the Water Project is located within the PEC service area and requires electric
distribution upgrades, improvements, and line extensions (the "Electric Project"), as well as
upgrades to and expansion of the PEC Nameless Substation,(the "Substation Project"); and
WHEREAS, the Water Project,and the Electric Project include various phases; and
WHEREAS, PEC has completed the Phase 2 Electric Project Temporary Power Project;
and
WHEREAS, the Electric Project and the Substation Project must be completed prior to
commissioning and final acceptance of the Water Project.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements herein contained, BCRUA, and PEC agree as follows:
1. Electric Project. The purpose of this Agreement is to provide for the design, construction
and cost sharing of the Electric Project which is intended to provide permanent power to
the Water Project.
2. Preliminary Route. The preliminary route of the electric distribution upgrades,
improvements,and line extensions for the Water Project("Preliminary Route") is attached
BCRUA Perm Power Contract. FINAL 02 22 24
BCRUA-2024-003
as Exhibit A hereto and incorporated herein. The Preliminary Route is subject to any
changes that may arise due to easement acquisitions for the Electric Project. Itis anticipated
that the portion of the Water Project requiring the Electric Project will be served from the
upgraded PEC Nameless Substation.
3. Easement Acquisition.
a. BCRUA has previously delivered preliminary routing maps of the entire Water
Project and the Electric Project to PEC that detail the affected landowners and
properties. PEC has existing easement rights for its existing facilities. BCRUA
acknowledges that PEC had no immediate plans to upgrade these facilities. While
some of these existing easements may allow for the upgrades required by the
Electric Project, BCRUA acknowledges that some of these easements could be
insufficient for the upgrade of the existing facilities for the Electric Project.
b. To the extent that the existing easements are not sufficient for the Electric Project,
BCRUA will be responsible for the acquisition of the easements and right of way
necessary for the Electric Project. PEC acknowledges and agrees that BCRUA's
acquisition of easements or right of way for the Electric Project are required to serve
a portion of the Water Project, and are for the construction, maintenance, and
operation of the Electric Project for a portion of the Water Project which is to be
undertaken as a public benefit. PEC acknowledges that BCRUA, through its
member Cities may utilize eminent domain and condemnation proceedings to
acquire the needed easements. Easements acquired by BCRUA and its member
Cities pursuant to this Section 3 shall either be granted directly to PEC or assigned
or otherwise transferred to PEC by the condemning authority at no cost to PEC. To
the extent that eminent domain and condemnation proceedings must be used to
obtain any easement or right of way,the BCRUA through its member Cities agrees
to comply with all applicable laws for the use of any eminent domain authority.
PEC acknowledges that easement acquisition and the potential associated use of
eminent domain and condemnation is being completed in order for PEC to serve a
portion of the Water Project which is expected to benefit residents in certain cities
for which PEC provides electric service.
c. PEC agrees to cooperate with BCRUA's efforts to obtain easements for the Electric
Project to serve a portion of the Water Project. BCRUA and its consultants, with
PEC's cooperation, shall respond to property owner questions and comments as
required.
4. Access Road(s). To the extent that any location for facilities necessary for the Electric
Project requires an access roadway, BCRUA agrees to obtain all ingress and egress rights
or easements necessary at its costs. BCRUA further agrees to submit the requisite
applications and supporting permits and documents if required by any city or county for
construction of such roadway. BCRUA agrees to construct and pay the costs for
construction of any such roadway(s) in accordance with the specifications agreed to by
PEC and BCRUA. Once the roadway is permitted, constructed, and accepted by PEC,
BCRUA will have no maintenance obligations with respect to the roadway.
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5. Materials Purchases. To the extent that any special-order equipment or materials are
necessary for the Electric Project to meet lead-times or other requirements for construction,
BCRUA agrees to pay the costs for such equipment or materials upon receipt of a cost
estimate. Notwithstanding the foregoing, PEC agrees to bear the additional incremental
costs for certain poles for a portion of the Electric Project attributable to PEC's system
upgrades. The said portion of the Electric Project is depicted in "red" on the attached
Exhibit "A."
6. Preliminary Design. BCRUA and PEC agree to work cooperatively to complete the
preliminary design of the Electric Project.
7. Final Design. BCRUA and PEC agree to work cooperatively to complete the final design
of the Electric Project according to the following allocation of responsibilities:
a. Final Design Tasks with BCRUA in Lead Role. BCRUA agrees to be responsible
for the design of the Water Project and the Electric Project. BCRUA agrees to
maintain a contract with a contractor to complete final design of the Electric
Project. BCRUA agrees to provide a final design of the Electric Project in segments
or phases for PEC's review. Any final design submitted by BCRUA must be clearly
marked as such.
b. PF_C's Role in the Electric Project. PEC agrees to review, comment, and provide
written acceptance of the final design of the Electric Project provided by BCRUA
or its consultant assuming such designs meet PEC's system requirements and
specifications. Upon written acceptance of the Electric Project by PEC and
provided no further design changes are required, BCRUA will no longer have any
responsibility regarding the design and engineering of the Electric Project.
c. PEC's role in the Substation Project. PEC agrees that it will be responsible for the
design and construction of the Substation Project. (BCRUA acknowledges that this
Agreement does not address any costs for the Substation Project.)
8. Construction. To the extent that PEC has not received all easements from BCRUA for any
section!phase prior to construction of that section.`phase, PEC shall not proceed with
construction of that section/phase of the Electric Project or Substation Project. Further to
the extent that any easement acquisition or any condemnation proceeding or litigation
proceeding delays or stops construction of the Electric Project and'or the Substation
Project, BCRUA shall be responsible for any demobilization costs assessed by the
contractor or consultant against PEC and any resulting re-mobilization costs assessed by
the contractor or consultant. It is anticipated that construction of the Electric Project and
the Substation Project may involve multiple construction contracts that are awarded at
different times based on the schedule requirements of the Water Project. As to the Electric
Project and the Substation Project, PEC intends to use PEC approved contractors for the
construction.
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9. Permitting. BCRUA agrees to obtain all applicable permits required for construction and
any necessary vegetation management, including any permit required by the Balcones
Canyonland Conservation Plan for the portion of the Water Project to be served by the
Electric Project.To the extent that any permitting requirements delays or stops construction
of the Electric Project and:'or Substation Project, BCRUA shall be responsible for any
demobilization costs assessed by the contractor or consultant against PEC and any resulting
re-mobilization costs assessed by the contractor or consultant against PEC. BCRUA further
agrees to submit the requisite service applications,and supporting pen-nits and documents,
to PEC for project commencement.
10. Payment and Costs.
a. PEC anticipates providing cost estimates to BCRUA in sections/phases for costs of
the design and construction of the Electric Project. The cost estimates will include
costs for labor, materials, and associated overheads for the design and construction
for all components, including any costs for vegetation management, construction
and project management costs for the Electric Project necessary to supply
permanent electric power to the Water Project. Within forty-five (45)days prior to
commencement of the initial phase of construction of the Electric Project, PEC shall
notify BCRUA of the estimated costs (including taxes where applicable) required
for that phase of the Electric Project. Upon receipt of a cost estimate, BCRUA
agrees to pay PEC the estimated costs in advance prior to PEC commencing that
section.-'phase of construction. To the extent that PEC has not received payment by
BCRUA for any phase prior to construction of that phase, PEC shall not proceed
with the Electric Project, and any resulting demobilization costs assessed by the
contractor or consultant against PEC and any resulting re-mobilization costs
assessed by the contractor or consultant shall be required to be paid by BCRUA.
Any additional related costs not included in a prior cost estimate will be provided
to BCRUA upon Project conclusion; BCRUA shall be responsible for such costs.
And BCRUA acknowledges and agrees that should the actual costs exceed the
estimate, an additional invoice will be processed, and payment shall be received
before PEC will initiate any additional phases of construction.
b. Any changes to the routing or design of any segment or phase of the Permanent
Power Project after PEC's acceptance of the Final Design may affect costs. PEC
agrees to bear any additional costs resulting from any changes by PEC to the routing
or design to accommodate PEC's system improvements or to provide supplemental
benefits to PEC. BCRUA agrees to bear any additional costs from changes to the
routing or design not associated with PEC system improvements or not providing
supplemental benefits to PEC.
c. Costs of the Electric Project submitted to the BCRUA shall be in accordance with
the Tariff and Business Rules of PEC.
d. Pursuant to the existing Tariff and Business Rules of PEC, PEC shall exercise
prudent judgment in determining the conditions under which a specific overhead
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line extension will be made and shall view each case individually and with terms
and conditions deemed reasonable by PEC. All amounts paid to PEC as
contribution in aid of construction shall be non-refundable.
11. Communication. BCRUA and PEC agree to hold periodic project status information
meetings. PEC's official point of contact for the Electric Project is the Cedar Park Electrical
Distribution Design & Planning Manager. BCRUA's official point of contact is the
BCRUA General Manager. BCRUA and PEC agree to include these designated points of
contact in the chain of communication for all significant decisions and recommendations
prepared by design engineers and other parties and representatives.
12. Schedule. The current Water Project schedule anticipates that the Electric Project will be
completed no later than January 2026. The parties acknowledge that the timeframe is
estimated and is subject to receipt of the necessary easements as described herein and any
other land rights and applicable permits for the Electric Project prior to construction
commencing for the Electric Project,each to be obtained by BCRUA.Notwithstanding the
inclusion of a date for the energization of the Electric Project, PEC shall not be liable for
any failure to meet any service date contained herein.
13. Nameless Substation. The parties agree that the Nameless Substation requires a redesign
to include additional capacity in order to serve the completed Water Project expected in
January 2026.Selection of a redesign option that is expected to include a power transformer
and substation expansion construction will be reflected by separate agreement between the
parties.
14. Rates for Permanent Power. The rates for the portion of the Water Project to be served
by the Electric Project will he in accordance with the conditions of the Tariff and Business
Rules of PEC then in effect as of the date of energization of the Permanent Power Project.
Notwithstanding the foregoing, the Tariff and Business Rules is subject to change by the
Board of Directors in accordance with PEC rules and regulations.
15. Compliance with Laws.
a. During the term of the Agreement, the parties will perform in compliance,
conformance, and accordance with all applicable laws, rules,and regulations of the
United States, and of any state or political subdivision thereof.
b. In accordance with Chapter 2270, Texas Government Code,a governmental entity
may not enter into a contract with a company for goods or services unless the
contract contains written verification from the company that it: (1)does not boycott
Israel; and (2) will not boycott Israel and will not boycott Israel during the term of
this contract. The signatory executing this Agreement on behalf of Vendor verifies
Vendor does not boycott Israel and will not boycott Israel during the term of this
Agreement.
16. Liability; No Waiver of Immunities.
a. PEC does not assume any liability for any property damage, injuries, or death in
connection with the design, engineering or construction of the Water Project or
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entry onto third-party property in connection with the Water Project or with respect
to any easement acquisition by BCRUA for the Electric Project.TO THE EXTENT
PERMITTED BY LAW, BCRUA HEREBY AGREES TO INDEMNIFY,
DEFEND AND HOLD PEC AND ITS DIRECTORS, OFFICERS, EMPLOYEES
AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL LOSS,
LIABILITY, CLAIM, DAMAGE, COST OR EXPENSE (INCLUDING
REASONABLE LEGAL FEES AND EXPENSES) ARISING OUT OF OR IN
CONNECTION WITH THE DESIGN, ENGINEERING OR CONSTRUCTION
OF THE WATER PROJECT OR ENTRY ONTO THIRD-PARTY PROPERTY
IN CONNECTION WITH THE WATER PROJECT OR WITH RESPECT TO
ANY EASEMENT ACQUISITION FOR, THE PERMANENT POWER
PROJECT.
b. BCRUA does not assume any liability for any property damage, injuries,or death
in connection with the construction of the Electric Project or entry onto third-party
property in connection with the construction of the Electric Project or upon written
acceptance of PEC of the final design of the Electric Project, the design and
engineering of the Electric Project. TO THE EXTENT PERMITTED BY LAW,
PEC HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD BCRUA
AND ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
HARMLESS FROM AND AGAINST ANY AND ALL LOSS, LIABILITY,
CLAIM, DAMAGE, COST OR EXPENSE (INCLUDING REASONABLE
LFGAL FEES AND EXPENSES) ARISING OUT OF OR IN CONNECTION
WITH THE CONSTRUCTION OF THE ELECTRIC PROJECT OR ENTRY
ONTO THIRD-PARTY PROPERTY IN CONNECTION WITH THE
CONSTRUCTION OF THE ELECTRIC PROJECTOR UPON ITS WRITTEN
ACCEPTANCE OF THE FINAL DESIGN OF THE ELECTRIC PROJECT,THE
DESIGN AND F.NGINFERING OF THE ELECTRIC PROJECT.
C. Subject to Section 18 below, nothing herein this Agreement shall be deemed to
waive, modify, or alter to any extent any defense or immunity available at law or
in equity to BCRUA or PEC, or their past or present officers, employees, or
agents, nor to create any legal rights or claim on behalf of any non-party.
d. The provisions of this Section survive the expiration or termination of this
Agreement.
17. Term. The term of this Agreement is for a period of three years from the Effective Date
unless otherwise earlier terminated by the parties.
18. PEC sole provider. BCRUA acknowledges that PEC is the sole certificated provider of
electric distribution services in the territory in which the Water Project is to be constructed.
19. Entire Agreement. This Agreement represents and contains the entire agreement and
understanding between the parties with respect to the subject matter herein and supersedes
any and all prior or contemporaneous oral and'or written agreements and understandings.
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20.Governing Law, This Agreement shall be construed and enforced in accordance with
Texas law. Venue for the litigation of any dispute arising hereunder shall be in Williamson
County, Texas.
21. Counterparts. This Agreement may be executed in any number of counterparts.
Executed to be effective this 29th day of,Arril , 2024 (the"Effective Date").
SIGNATURES ON FOLLOWING PAGES
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PEDERPIA LECT C ERAT[VE,INC.
f
By-
Ju arslc C 'ef Exccut' a Officer
Dat 1 !r 4
t
BRUSHY CREEK REGIONAL UTILITY AUTHORITY, INC.
By:
Matthew Baker, President
Date:
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EXHIBIT A
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