BCRUA-2024-012 - 6/26/2024AGREEMENT 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, constrict 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, 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.
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lBCRUA-Nameless Substation Upgrades Agreement - Final 6.18.24
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 Phase;
b. 25.6% of the substation T3 transformer costs;
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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 T 1 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 1 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 Substation Project. To implement construction will require payment
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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
tennination, 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
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
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 TIME 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 fora 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
'EDERNALFCT I OPERATIVE, �IN�C.
.
B: x cu' e Officer iel' LDat
BRUSHY CREEK REGIONAL UTILITY AUTHORITY, INC.
By:
Rene loxes, President
Date: & Z1., - �*!f