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BCRUA-2024-012 - 6/26/2024 RESOLUTION NO. BCRUA-2024-012 WHEREAS, the Brushy Creek Regional Utility Authority, Inc. ("BCRUA") desires to enter into an agreement with Pedernales Electric Cooperative, Inc. regarding the nameless substation related to the Phase 2 Raw Water Delivery System Project, Now Therefore BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BRUSHY CREEK REGIONAL UTILITY AUTHORITY: That the Board President is hereby authorized and directed to execute on behalf of the BCRUA an Agreement with Pedernales Electric Cooperative, Inc., a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The Board of Directors 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 26th day of June, 2024. REN , FLORES, Presid Brushy Creek Regional Utility Authority ATTEST: ANNE XJFFY, Secret t 0330.4634-A:406-11 V0-0433 BCRUA-Nameless Substation Upgrades Agreement - Final 6.18.24 AGREEMENT BETWEEN PEDERNALES ELECTRIC COOPERATIVE, INC. AND THE BRUSHY CREEK REGIONAL UTILITY AUTHORITY REGARDING THE NAMELESS SUBSTATION 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 II 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, including the addition of a substation power transformer and distribution feeder construction at the site (collectively, the “Substation 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. Engineering and Planning Phase. 1.01 Engineering Plan. To evaluate the Substation Project and fully understand the level of construction needed within the Nameless Substation, a full project engineering plan and assessment is essential. The Water Project requires PEC to install an additional 46.7 MVA substation transformer. Adding the transformer will require PEC to relocate the two existing transformers and reconfigure the existing substation space. EXHIBIT "A" 2 1.02 Projected Load. The projected load for the Water Project is 12 MVA which cannot be served with the existing substation equipment. PEC will consult with an engineering firm to provide a substation design to serve the load. This Agreement is not a guarantee of any future capacity or availability for any additional BCRUA load at the Nameless Substation. Any future requirements of BCRUA will be reviewed at the time submitted in accordance with PEC’s Tariff and Business Rules. 2. Substation Re-Design, Transformer & Construction. 2.01 Design Plan. At the completion of the Engineering and Planning Phase, PEC will develop a design, material acquisition and construction scope of work for the design plan and costs for substation upgrades. BCRUA will review such design plan and costs and confirm agreement to such costs prior to any work commencing (the “Substation DMC Agreement”). 2.02 Ordering Materials. Some materials have a longer lead time and may be ordered prior to completion of the Engineering and Planning Phase. 3. Distribution Planning, Design, and Construction. Electrical service to the Water Project will be provided by PEC. The Cedar Park PEC Planning and Design Group will oversee and manage the electrical distribution planning and design work at the site of the Water Project. Costs for design services are in accordance with PEC’s Tariff and Business Rules. Actual line extension and construction costs will be in accordance with PEC’s Tariff and Business Rules. The Cedar Park District Planning and Design Group will provide estimates in accordance with Section 400 of the Tariff and Business Rules and costs for the line extension will be collected prior to any construction of these distribution improvements. In addition to the distribution improvements for the Electric Project previously constructed in connection with the Water Project, the Substation Project will require construction of a distribution feeder at the Nameless Substation to connect the Electric Project. 4. Water Project Schedule. 4.01 BCRUA has requested a service date of no later than the end of the third quarter of 2026 for the Water Project. Notwithstanding this request, timing for construction of distribution facilities will be in accordance with the PEC Tariff and Business Rules and is dependent on the timing and construction of the Substation Project. BCRUA acknowledges substation construction will require a minimum of one year from the date of the conclusion of the Engineering and Planning Phases and entry into the Substation DMC Agreement 5. Costs. 5.01 BCRUA’s portion of the costs will be as follows: a. 100% of consultant fees to design substation and distribution feeder in the Engineering and Planning P hase; b. 25.6% of the substation T3 transformer costs; 3 c. 100% of equipment to install the breaker, bus work, and feeder exits; d. 100% of construction, labor, and miscellaneous costs for the substation reconfiguration of the existing T1 and T2 transformers; and, e. 25.6% of construction, labor, and miscellaneous costs for the installation of the new T3 transformer and T3 bus work and other required electric equipment for T3. PEC will require the costs to be paid as described herein for the Engineering Costs and for the power transformer and for such other costs to be described in the Substation DMC Agreement. PEC will final bill and true up costs at the conclusion of the Substation Project. 5.02 Engineering & Planning Phase Costs. The scope of the engineering services (the “Engineering Costs”) required for this project includes all work to be completed by PEC and its contractors towards the redesign and reconfiguration of the Substation Project to be paid by BCRUA. The Engineering Costs will be paid upfront by the BCRUA after an estimate is provided by the contracted engineering consultant no later than Fall 2024. The contracted firm will provide a quote to PEC which will be shared with BCRUA. The estimate of Engineering Costs (BCRUA responsibility) is $338,543.90. The Engineering and Planning Phase will not begin until the estimated Engineering Costs are paid within 30 days of invoice. PEC will true- up Engineering Costs at the conclusion of the Substation Project. 5.03 Engineering & Planning Cost Estimate Adjustments. BCRUA further acknowledges should the Engineering and Planning Phase cost more than the estimate, an additional invoice will be processed, and payment shall be received before PEC will initiate any additional design, materials, or construction for any project. PEC acknowledges that should the Engineering and Planning Phase cost less than the estimate above, a refund will be initiated and paid by PEC. To the extent that the BCRUA determines not to proceed with the project, PEC may refund a portion of the Engineering & Planning cost estimate, less any amounts incurred to date. 5.04 Transformer Purchase. The power transformer required for the Substation Project requires a long lead time. The amount presented below is 25.6% of the estimated cost of a 46.7 MVA power transformer. PEC will present actual costs at the time of equipment confirmation by manufacturer and requires payment within 30 days of invoice for such equipment. The amount below does not include any installation costs or bus work or other required electric equipment for T3 for the Substation Project, which will be outlined in the forthcoming Substation DMC Agreement. The BCRUA responsibility (estimated) for the cost of the transformer is $585,009.47. 5.05 RESERVED. 5.06 Additional Costs / Requirements. The BCRUA further acknowledges and agrees that this estimate included in this Agreement does not include any costs to implement any recommendations from the Engineering & Planning Phase and does not include materials or construction costs for the S ubstation Project. To implement construction will require payment 4 of the estimated costs of construction and other related costs to be further outlined in the Substation DMC Agreement. 6. Ownership. The BCRUA further acknowledges and agrees that any electrical facilities, whether transmission upgrades or distribution facilities upgrades later installed shall be owned and controlled solely by PEC. 7. Schedule. Design and construction of the Substation Project is estimated to require 24 months. Accordingly, it is anticipated that design will commence not later than Fall 2024, and the Substation Project will be brought online prior to the end of the third quarter of 2026. PEC shall not be liable for any failure to meet any requested service date contained herein. 8. Confidentiality. PEC is subject to an Open Records Policy adopted by its Board of Directors and a Designation of Competitive Matters adopted by its Board of Directors. Any information deemed to be confidential or proprietary by either party should be clearly noted. PEC may withhold public access to such records or applicable portions thereof, when it is or contains information, including pricing information, that, if released, would give advantage to a PEC Competitor (as defined in the Designation of Competitive Matters) or bidder; trade secrets obtained from a person and privileged or confidential by statute or judicial decision; commercial or financial information for which disclosure would cause competitive harm to the person from whom the information was obtained; contract drafts, term-sheets, letters of intent, and other contract materials related to the items listed above or otherwise subject to another exception under the Open Records Policy. If another party requests access to information marked CONFIDENTIAL pursuant to PEC’s Open Records Policy, then PEC shall ask if the information may be released. Notwithstanding anything to the contrary herein, PEC may disclose information marked confidential to those employees, officers, directors, attorneys, or consultants who: (a) have a substantive need to know such information; and (b) have been advised of the confidential and proprietary nature of such information. 9. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF WHICH WOULD REFER A PARTY TO THE LAWS OF ANOTHER JURISDICTION. THE PARTIES SUBMIT EXCLUSIVELY TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS OF WILLIAMSON COUNTY, TEXAS AND WILL NOT SEEK TO REMOVE ANY PROCEEDING AND/OR CAUSE OF ACTION TO ANOTHER VENUE. 10. Damages. Unless otherwise expressly provided herein, neither party will be liable to the other party for punitive, incidental, indirect, consequential, special, exemplary, or similar damages, including, without limitation, liability for loss of use, loss of profits, loss of product, or business interruption, however the same may be caused, including the fault, negligence, willful misconduct, or strict liability of either party. 11. Survival. The provisions of this Agreement which are intended to extend beyond its termination, including without limitation, the liability and payment provisions, and the provisions applicable to the enforcement of those provisions and/or the enforcement of rights and obligations 5 incurred hereunder which are not fully discharged prior to the termination of this Agreement, shall survive termination to the extent necessary to effect the intent of the parties and/or enforce such rights and obligations. 12. Waiver. No waiver by any party of any default(s) by the other party in the performance of any provision, condition or requirement of this Agreement shall operate or be construed as a waiver of any future default(s), whether of a like or different character, nor in any manner release the defaulting party from performance of any other provision, condition or requirement herein. 13. Severability. If any provision of this Agreement is declared null and void or voidable by a court of competent jurisdiction, such declaration shall in no way affect the validity or effectiveness of the other provisions of this Agreement, which shall remain in full force and effect, and the parties shall thereafter use their commercially reasonable efforts to agree upon an equitable adjustment to the provisions of this Agreement with a view to effectuating its purpose. 14. Third Party Beneficiaries. Nothing in this Agreement, whether expressed or implied, creates any third-party rights. 15. No Assignment. This Agreement may not be assigned (in whole or in part) by either party without the prior written consent of the other party, which may not be unreasonably withheld, conditioned, or delayed; provided, however, no consent shall be required if the assigned party is controlled or related to a party and such assigned party assumes all requirements of the Agreement. 16. Entire Agreement. This Agreement 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. All amendments, supplements, and modifications to this Agreement must be in writing and signed by both parties. 17. Execution. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Execution of this Agreement by an electronic form of signature that is an exact copy of the original signature shall be deemed to be, and shall have the same effect as, execution by original signature, and an electronic form counterpart of this Agreement signed by all parties hereto shall be sufficient to bind all such parties. No presumption shall operate in favor or against any party as a result of any responsibility or role that any party may have had in the drafting of this Agreement. 18. 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 entry onto third-party property in connection with the Water Project or with respect to any easement acquisition by BCRUA for the Substation Project if necessary. 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 6 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 SUBSTATION PROJECT. b. BCRUA does not assume any liability for any property damage, injuries, or death in connection with the construction of the Substation Project or entry onto third-party property in connection with the construction of the Substation Project or upon written acceptance of PEC of the final design of the Substation Project, the design and engineering of the Substation 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 LEGAL FEES AND EXPENSES) ARISING OUT OF OR IN CONNECTION WITH THE CONSTRUCTION OF THE SUBSTATION PROJECT OR ENTRY ONTO THIRD-PARTY PROPERTY IN CONNECTION WITH THE CONSTRUCTION OF THE SUBSTATION PROJECT OR UPON ITS WRITTEN ACCEPTANCE OF THE FINAL DESIGN OF THE ELECTRIC PROJECT, THE DESIGN AND ENGINEERING OF THE SUBSTATION PROJECT. c. Nothing in 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. 19. Term. The term of this Agreement is for a period of three years from the Effective Date unless otherwise earlier terminated by the parties. 20. 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. Executed to be effective this ____ day of ________, 2024 (the “Effective Date”). SIGNATURES ON FOLLOWING PAGES 7 PEDERNALES ELECTRIC COOPERATIVE, INC. By: __________________________ Julie C. Parsley, Chief Executive Officer Date: ________________________ 8 BRUSHY CREEK REGIONAL UTILITY AUTHORITY, INC. By: __________________________ Rene Flores, President Date: ________________________