R-00-09-28-9C11 - 9/28/2000RESOLUTION NO. R- 00- 09- 28 -9C11
WHEREAS, AquaSource Utility, Inc. desires to purchase wholesale
water service from the City of Round Rock, and
WHEREAS, the City Council wishes to enter into a Wholesale Water
Supply Agreement with AquaSource Utility, Inc., Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City a Wholesale Water Supply Agreement with AquaSource
Utility, Inc., a copy of said agreement being attached hereto and
incorporated herein for all purposes.
The City Council 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, and the Act.
ATTEST:
RESOLVED this 28th day of Sept , 2000.
RO:ERT A. STLUKA, •., Mayor
JO NE LAND, City Secretary
K : \arcs \assoLurx \ROonxac. f
City of Round Rock, Texas
THE STATE OF TEXAS
WHOLESALE WATER SUPPLY AGREEMENT BETWEEN
THE CITY OF ROUND ROCK, TEXAS AND
AQUASOURCE UTILITY, INC.
COUNTY OF WILLIAMSON
KNOW ALL MEN BY THESE PRESENTS:
d This Wholesale Water Supply Agreement ( "Agreement ") is made and entered into as of the
0166 day of hoi 2000 by and between the City of Round Rock, Texas ("City "), a
home rule city located in Williamson County, Texas and AquaSource Utility, Inc. ( "AquaSource "),
a Texas corporation.
RECITALS
Whereas, the City owns and operates a potable water supply system, and
Whereas, AquaSource provides retail potable water service to an unincorporated area ( "Water
Service Area ") adjacent to City' s boundaries under the authority of Water Certificate of Convenience
and Necessity No. 11442, the service area map for which being attached hereto as Exhibit "A ", and
Whereas, AquaSource owns certain water wells which are no longer considered to be reliable
for potable domestic water service and has purchased water from the City on an interim basis since
1992, and
Whereas, the City has a supply of water not contracted to others and available for
AquaSource's use and the City desires and is authorized to provide wholesale water service outside
its corporate limits, and
Whereas, AquaSource desires to purchase wholesale water service from the City,
Now, Therefore, for and in consideration of the premises and mutual obligations and benefits
herein contained, the City and AquaSource hereby agree as follows:
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ARTICLE I
DEFINITIONS
The terms and expressions used in this Agreement, unless the context indicates otherwise,
shall have meanings as follows:
1.01. "Agreement" means this Wholesale Water Supply Agreement.
1.02. " Point(s) of Delivery" means the one or more locations at which water passes through
a master meter and thereafter is owned and controlled by AquaSource.
1.03. "Water" means potable water suitable for domestic and municipal uses and meeting
the requirements of the Texas Department of Health and Texas Natural Resource Conservation
Commission ( "TNRCC ") for public consumption.
1.04. "Water Service" means the delivery of potable water at the point(s) of delivery
sufficient to meet the requirements of the TNRCC.
1.05 "Water Service Area means that certificated retail water service area included within
water CCN No. 11442 issued by the TNRCC or its statutory predecessor as depicted on Exhibit "A ".
2.01. Water Service. The City shall deliver and sell water to AquaSource, for retail
municipal and domestic uses within the Water Service Area only, to be supplied from the City's
water treatment and distribution system. The City presently has and will maintain an adequate water
supply with which to meet AquaSource's current and future needs as defined and limited in this
Agreement. AquaSource agrees that the supply of water to AquaSource may be reasonably limited
by the City on the basis and to the same extent as the supply of water to other customers within the
City. To the extent allowed by law and AquaSource's Tariff, AquaSource shall require compliance
with the City's water conservation ordinances, as amended from time to time. The City shall be the
sole source of potable water to AquaSource and AquaSource shall not seek to develop its own wells
for retail potable domestic water service within its Water Service Area, except in the event that the
City is no longer able to provide water service as contemplated herein. The quantity of water service
delivered by the City shall be measured by master meters at all delivery points. Such water service
shall be delivered at the Point of Delivery at or above the minimum pressure requirements
established by the TNRCC for potable water distribution systems.
2.02. Water Rates. The rate to be charged to and paid by AquaSource for water actually
delivered pursuant to this Agreement shall be set by ordinance as amended from time to time by the
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ARTICLE II
WATER SERVICE
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Round Rock City Council. Said rates shall be reasonable and non - discriminatory. The rate in effect
on the effective date of this Agreement is composed of a $1.30 / 1000 gallon volumetric charge and
a monthly demand charge of $4,185.00.
2.03. Metering Equipment. AquaSource, at it sole expense, shall install and maintain at
the Point(s) of Delivery the necessary metering equipment and required devices of standard type to
measure properly the quantity of water delivered to AquaSource. Thereafter, AquaSource at its cost
shall calibrate the metering equipment at the Point(s) of Delivery once every twelve (12) months;
provided, however, the cost of calibrating the metering equipment shall be borne by the City if such
calibration is requested more frequently than once every twelve (12) months. AquaSource shall
notify the City at least three (3) days prior to any such calibrations and the City shall have the right
to have a representative present during such calibrations. A meter registering not more than three
percent (3 %) above or below the test result shall be deemed to be accurate. The previous readings
of any meter disclosed by test to inaccurate and the statement of charges for water delivered to
AquaSource shall be corrected for the three (3) months previous to such test in accordance with the
percentage of inaccuracy found by such test. If the meter fails to register for any period, the amount
of water furnished during such period shall be deemed to be the amount of water delivered in the
corresponding period immediately prior to the failure adjusting for seasonal differences, unless the
City and AquaSource shall agree upon a different amount. The metering equipment register shall
be read on or about the first day of each month during normal business hours.
2.04. Consumption Record. The City shall keep accurate records of all of its readings from
the meters installed pursuant to Section 2.03 above. These records shall be subject to inspection by
AquaSource at reasonable times and places. AquaSource shall read the meters daily during the
period between June 15 and September 15 and during the remainder of the year except on weekends
and state and federal holidays and provide the City monthly records of such daily readings
AquaSource shall have the option to equip such meters with telemetric data recorders.
2.05. Billing. AquaSource shall be billed, and payments shall be due as required by the
City's policies for its other customers.
2.06. Point of Delivery. The initial Point of Delivery will be that Point of Delivery
currently in existence on the effective date of this Agreement and which is at the discharge side of
the meter(s) installed by AquaSource pursuant to Section 2.03 above on the existing City Water
System. New and/or additional Points of Delivery may be constructed at a later date by mutual
consent of the parties, at which time AquaSource may rely upon City's Water System to provide
sufficient external storage capacity for up to 322 retail connections within AquaSource' s distribution
system. Upon passing through the meter at the Points of Delivery, the water becomes the property
of AquaSource.
2.07. Contracts With Other Customers. The City reserves the right to contract with other
persons, natural or corporate, private or public, and to perform services similar to those performed
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under this Agreement as well as other services; however, to the extent allowed by law, the City shall
make no other contract for service to such other persons or entities within AquaSource's Service
Area and the City shall make no other contract for service which may impair its ability to deliver the
quantity and quality of water to AquaSource specified in this Agreement.
ARTICLE III
OTHER RIGHTS AND OBLIGATIONS OF AOUASOURCE
3.01. Payment of Rate Charge. Upon receipt of the itemized statement of the amount of
water determined to be delivered to AquaSource, and the charges therefor, AquaSource shall pay the
amount due on or before the due date listed.
3.02. Resale of Water. AquaSource is expressly authorized to resell the water delivered
hereunder to its retail customers within its Water Service Area. AquaSource shall not sell or deliver
such water to any party outside AquaSource's Water Service Area without prior approval of the City.
3.03. Well Production. AquaSource agrees to cease the production of potable domestic
water from all of its existing Water Service Area water wells and to not seek to develop any other
wells for potable retail domestic use within said Service Area. Such wells will be severed and
disconnected from AquaSource's distribution system. This Agreement shall not be construed to
affect or limit Aqua Source's ability to use and/or develop its Water Service Area wells for
non - potable water uses and/or sales.
3.04. Sole Source of Water. AquaSource agrees that the City shall be its sole source of
potable water for the duration of this Agreement.
3.05. Backflow Prevention Devices. AquaSource agrees to install, at its sole cost, at each
Point of Delivery, a backflow prevention device of a size, design, location, configuration and
capacity as approved by the City's Director of Public Works. City agrees that it will not require an
air gap or other backflow prevention device causing water pressure at the Point of Delivery to be less
than the minimum pressure requirements established by the TNRCC.
3.06. Rates and Fees. AquaSource shall not be delinquent in the payment of water charges
and fees to the City.
3.07. Inspection. AquaSource shall permit personnel of the City to conduct periodic
inspections of AquaSource's system.
3.08. Sanitary Control Agreement. To the extent authorized by law and existing easements
held by AquaSource, AquaSource shall permit personnel of the City to enter upon the property of
any and all of AquaSource's customers for the purpose of inspecting connections made by such
customers to AquaSource's water lines. Should the City have reasonable grounds to believe that any
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condition exists which might result in contamination of the City's water supply, or otherwise
jeopardize the City's certification by the State Department of Health and/or TNRCC, the City shall
notify AquaSource and AquaSource shall immediately correct any such condition.
3.09. Compliance with Regulations. AquaSource shall operate its system in compliance
with all applicable regulations of the City, the Texas Department of Health, TNRCC, and the Federal
Environmental Protection Agency.
3.10. Quality Maintenance. AquaSource shall maintain the quality of water beyond the
Point of Delivery and provide necessary chlorination or other treatment so as to maintain the quality
of water throughout AquaSource's Service Area, and AquaSource agrees to submit samples of such
water in accordance with all applicable state and federal requirements.
3.11. Payment. AquaSource hereby covenants to pay City on a monthly basis such charges
invoiced by the City under rates established pursuant to Section 2.02, following the first month of
water service after the effective date of this Agreement. AquaSource further covenants to pay to City
on a monthly basis the amount due for amortized impact fees pursuant to Article V. All amounts
due to City shall be paid to City at its office in Round Rock, Williamson County, Texas, by check
or bank -wire, on or before thirty (30) days from the date of mailing of the statement to AquaSource.
In the event AquaSource fails to make payment of that statement within said thirty (30) day period,
AquaSource shall then pay a late payment charge of five percent (5 %) of the amount of the
statement. For each calendar month or fraction thereof thereafter that the statement remains unpaid,
AquaSource shall pay interest at the rate of two percent (2 %) of the amount of the statement. If the
statement has not been paid in the prescribed period, AquaSource further agrees to pay all costs of
collection and reasonable attorney's fees, regardless of whether suit is filed.
ARTICLE IV
RESERVED WATER
4.01. No Reservations. AquaSource acknowledges and agrees that it is not reserving a
guaranteed supply of water to meet current or future needs. The City has an adequate supply of
water to satisfy the reasonable requirements of its current population, other contractual obligations,
and within AquaSource's Service Area for up to 322 retail service connections. Should additional
supplies be required, the City will endeavor to obtain a supply of water to meet the future needs of
its own citizens, as well as its contractual customers, including AquaSource; provided, however,
AquaSource shall not serve more than 322 retail connections within its service area without City' s
prior consent.
ARTICLE V
WATER IMPACT FEES
5.01. Impact Fees for New Connections. For each new connection to its water system
following execution of this Agreement, AquaSource agrees to pay to City any and all water impact
fees adopted by the City Council which are applicable to all new connections to the City's water
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system. The water impact fees shall be adopted in accordance with Chapter 395 of the Texas Local
Government Code. The City agrees to notify AquaSource of any proposed action by the City to
modify the amount of impact fees adopted by the City from time to time. AquaSource agrees to
notify the City on a monthly basis of the date and address of all new connections to AquaSource's
water system. The payment of all impact fees shall be due and payable to City within thirty (30)
days of the date of the new connection to the system. As of the effective date of this Agreement,
new connection impact fees established by the City amount to $2,345.00 per residential living unit
equivalent.
5.02. Impact Fees for Existing Connections. The City and AquaSource agree that there are
277 existing connections to AquaSource's water system. AquaSource agrees to pay City a water
impact fee of $1,345 for each existing connection within sixty days of the effective date hereof, or
amortize its payments at nine percent (9 %) simple interest accruing from said effective date over a
twenty four month period beginning on the sixtieth day following the effective date hereof.
5.03. Payment Address for Impact Fees. All payments of impact fees and any interest
accrued thereon shall be sent to:
City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Attention: Finance Department.
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ARTICLE VI
TERM OF AGREEMENT
The term of this Agreement shall be for 40 years from the effective date of this Agreement,
at which time this Agreement shall expire unless extended by mutual contract.
ARTICLE VII
FORCE MAJEURE
Neither party shall be liable to the other party or any user of the water service for the failure
of either party to perform its obligations herein where the failure results from force majeure. The
term "force majeure" as employed herein, shall mean acts of God, strikes, lockouts, or other
industrial disturbances, acts of public enemy, orders of any kind of the government of the United
States or the State of Texas or any civil or military authority, insurrections, riots, epidemics,
landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests,
restraint of government and people, civil disturbances, or explosions. It is understood and agreed
that the settlement of strikes and lockouts shall be entirely within the discretion of that party and that
the requirements that any force majeure shall be remedied with all reasonable dispatch shall not
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require the settlement of strikes and lockouts by acceding to the demands of the opposing party or
parties when such settlement is unfavorable in the judgment of such party.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.01. Audit Requirements. AquaSource is required by the Texas Water Code to maintain
uniform accounts as prescribed by the TNRCC and to file an annual service and financial report with
the TNRCC. AquaSource agrees to furnish to the City a copy of the completed service and financial
report each year.
8.02. Waiver. No failure on the part of either party to this Agreement to require the
performance by the other party of any portion of this Agreement shall in any way affect either
party's right to enforce such provision, nor shall any waiver by either party be taken or held to a
waiver of any other provisions. No rights under this Agreement may be waived and no modification
or amendment to this Agreement may be made except by written amendment executed by the parties.
8.03. Termination. If either party to this Agreement shall default in the performance of any
of the terms or conditions of this Agreement, the defaulting party shall have thirty (30) days after
delivery to it of written notice of such default within which to cure such default. If the defaulting
party fails to cure its default within such period of time, then the non - defaulting party shall have the
right without further notice to terminate this Agreement.
8.04. Regulatory Agencies. This Agreement shall be subject to all valid rules, regulations,
and laws applicable thereto, passed or promulgated by the United States of America, the State of
Texas, or any governmental body or agency having lawful jurisdiction. AquaSource and the City
shall comply with all applicable statutes, rules and regulations as may now exist or as may be
promulgated by the State of Texas and its administrative agencies and the United States of America
and its administrative agencies.
8.05. Headings. All headings in the Contract have been inserted for convenient reference
only and shall not in any manner be construed as modifying, amending, or affecting in any way the
express terms and provisions hereof.
8.06. Indemnification. AquaSource agrees to indemnify and hold the City harmless from
any claims which are made against the City which arise as a result of AquaSource's negligence in
the operation of AquaSource's Water System. Likewise, the City agrees to indemnify and hold
AquaSource harmless from any claims which are made against AquaSource which may arise as a
result of the City's negligence in the operations of the City's Water System.
8.07. Addresses and Notices. Unless otherwise provided in this Agreement, any notice,
communication, request, reply, or advice (herein severally and collectively, for convenience, called
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"Notice ") herein provided or permitted to be given, made or accepted by either party to the other
must be in writing and may be given or be served by depositing the same in the United States mail
postpaid and registered or certified and addressed to the party to be notified, with return receipt
requested, or by delivering the same to an officer of such party, or by prepaid telegram, when
appropriate, addressed to the party to be notified. Notice deposited in the mail in the manner
hereinabove described shall be conclusively deemed to be effective, unless otherwise stated in this
Agreement, from and after the expiration of four (4) days after it is so deposited. Notice given in
any other manner shall be effective only if and when received by the party to be notified. For the
purpose of Notice, the addresses of the parties shall, until changed as hereinafter provided, be as
follows:
If to the City, to:
City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Attention: City Manager
With copy to:
Stephen L. Sheets
Attorney at Law
309 East Main Street
Round Rock, Texas 78664
If to AquaSource, to:
David Beyer
AquaSource, Inc.
11100 Brittmore Park Drive
P.O. Box 40496
Houston, Texas 77240 -0496
With copy to:
Skip Newsom, Attorney at Law
111 Congress Avenue, Suite #820
Austin, Texas 78701
The parties shall have the right from time to time and at any time to change their respective
addresses and each shall have the right to specify as its address any other address by at least fifteen
(15) days' written notice to the other party.
8.08. Severability. The provisions of this Agreement are severable, and if any provision
or part of this Agreement or the application thereof to any person or circumstance shall ever be held
by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder
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of this Agreement and the application of such provision or part of this Agreement to other persons
or circumstances shall not be affected thereby.
8.09. Modification. This Agreement shall be not subject to change or modification without
the express written mutual consent of the governing bodies of each of the parties hereto.
8.10. AquaSource's Authorization. AquaSource's Board of Directors has previously
authorized its President to approve, enter into, and execute, on AquaSource's behalf, wholesale water
service and supply agreements. Accordingly, this Agreement and all of its provisions have been
authorized, approved and entered into by AquaSource's President and attested to by its Assistant
Secretary on the 20th day of September, 2000.
8.11. City Authorization. This Agreement and all of its provisions have been authorized,
approved and entered into by the City by virtue of action taken by the City Council pursuant to law
and has been executed by its Mayor, and attested to by its Secretary, upon its au ority of a
resolution passed at a meeting of the Round Rock City Council held on the c 8 day of
2000.
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8.12. Effective Date. The effective date of this Agreement is September 18, 2000.
ATTEST:
Jo e Land, City Secretary
ATTEST:
sic
Misty Session , Assistant Secretary
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THE CITY ROUND ROCK, TEXAS
221 East Main Street
Round Rock, Texas 78664
By:
Ro. = rt A. Stluka, Mayor
AQUASOURCE UTILITY, INC.
P.O. Box 40496
Houston, Texas 77240 -0496
DATE: September 22, 2000
SUBJECT: City Council Meeting — 7:00 p.m.
ITEM: 9.C.11. Consider a resolution authorizing the Mayor to execute a contract
with AquaSource Utility, Inc. to purchase wholesale water service
from the City of Round Rock Staff Resource Person: Jim Nuse,
Public Works Director.
OOT -11 -2000 WED 10:56 AM FISHER & NEWSOM
Skip Newsom*
Steve Sheets
City of Round Rock
309 East Main Street
Round Rock, Texas 78664
VIA FAX: 512- 218 -7097
Fisher & Newsom, P.C.
Atbrneysat Law
111 Congress Avenue, Suite 820
Austin, Texas 78701-4043
(512) 477-4121
FAX (512) 477 -2860
October 11, 2000
Re: AquaSource Water Supply Contract
FAX NO. 512 477 2860 P. 01
Dear Steve:
Please advise on the status of the above agreement as 1 have heard nothing from the City and
I have not received any executed agreements.
cc: David Beyer
*Board Certified, Administrative Law - -Texas Board of Legal Specialization
OCT -11 -2000 11:06
Yours very truly,
5L>i
Skip Newsom
512 477 2660 96% P.01
Mayor
Robert A. Stlaka. Jr.
Mayor Protem
Earl M. Hairston
Council Members
Tom Nielson
Carrie Pitt
Earl Palmer
Isabel Callahan
Jimmy Joseph
City Manager
RobertL Bennett, Jc
City Attorney
Stephan L Sheets
CITY OF ROUND ROCK
October 11, 2000
Mr. David Beyer
AquaSource, Inc.
11100 Brittmore Park Drive
P.O. Box 40496
Houston, TX 77240 -0496
Dear Mr. Beyer:
221 East Main Street
Round Rock, Texas 78664
512 -218 -5400
The Round Rock City Council approved Resolution No. R- 00- 09- 28 -9C11 at their
regularly scheduled meeting on September 28, 2000. This resolution approves the
Wholesale Water Supply Agreement with AquaSource Utility, Inc.
Enclosed is a copy of the resolution and agreement for your files. If you have any
questions, please do not hesitate to contact Jim Nuse at 512- 218 -5555.
Sincerely,
Joanne Land
City Secretary
Enclosures
Pax: 512-218-7097
1-800- 735 -2989 TDD 1- 800 - 735 -2988 Voice
www.ci.round- rock.tx.us
Mayor
Robert A. Stlaka Jr.
Mayor Pro-tem
Earl M. Hairston
Coundt Members
Tom Nielson
Carrie Pitt
Earl Palmer
Isabel Gallahan
Jimmy Joseph
City Manager
Robert L Renaetb Jr.
City Attorney
Stephan L Sheets
CITY OF ROUND ROCK
October 11, 2000
Mr. Skip Newsom, Attomey at Law
111 Congress Avenue, Suite #820
Austin, TX 78701
Dear Mr. Newsom:
Sincerely,
Joanne Land
City Secretary
Enclosures
Fax: 512 -218 -7097
tahtk
1 -800- 735 -2989 TDD 1- 800 - 735 -2988 Voice
www.ci.round- rock.txaus
221 East Main Street
Round Rock, Texas 78664
512.218 -5400
The Round Rock City Council approved Resolution No. R- 00- 09- 28 -9C11 at their
regularly scheduled meeting on September 28, 2000. This resolution approves the
Wholesale Water Supply Agreement with AquaSource Utility, Inc.
Enclosed is a copy of the resolution and agreement for your files. If you have any
questions, please do not hesitate to contact Jim Nuse at 512- 218 -5555.