R-00-09-28-9C7 - 9/28/2000RESOLUTION NO. R- 00- 09- 28 -9C7
WHEREAS, the City of Round Rock ( "City ") and the City of Austin
( "Austin ") have previously entered into an Interlocal Agreement for
Interim Wastewater Transportation and Treatment Capacity ( "Agreement ")
whereby the the City provided temporary wastewater transporation and
treatment service to Austin, and
WHEREAS, the City and Austin now desire to terminate the
Agreement, 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 an Agreement for Termination of Interlocal Agreement
for Interim Wastewater Transporation and Treatment, 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 Sep
JO i E LAND, City Secretary
rt: \ WPDOCS RESOLUTI \xan., .WPD /SC
2000
ROBERT A. STLUKA, JR.,, Mayor
City of Round Rock, Texas
DATE: September 22, 2000
SUBJECT: City Council Meeting — 7:00 p.m.
ITEM: 9.C.7. Consider a resolution authorizing the Mayor to execute an
Agreement for Termination of Interlocal Agreement for Interim
Wastewater Transportation and Treatment Between City of
Austin and City of Round Rock. Staff Resource Person: Jim Nuse,
Public Works Director.
City of Austin
Law Department
Norwood Tower, 114 West 7' Street, P.O. Box 1546
Austin, Texas 78767 -1546
(512)499 -2268
October 6, 2000
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512 / 499 -2159 512 / 499 -2912
Steve Sheets
Brown, McCarroll, Sheets & Crossfield, L.L.P.
Attorneys and Counselors
309 East Main Street
Round Rock, Texas 78664 -5246
Sincerely,
J /4"D
John M Tresnicky
Assistant City Attorney
cc: C. Lippe, Acting Director, WWW Utility
M. Erdmann, Manager, Wholesale Services Division, WWW Utility
Andrew Martin, City Attorney
Writer's Direct Line Writer's Fax Line
Re: Austin /Round Rock; Agreement for Termination of Interim Wastewater Service
Agreement Between City of Austin and City of Round Rock.
Dear Mr. Sheets:
Enclosed for your files are three (3) fully executed duplicate originals of the above - entitled
instrument.
I appreciate your cooperation in bringing this matter to conclusion.
AGREEMENT FOR TERMINATION OF INTERLOCAL AGREEMENT FOR INTERIM
WASTEWATER TRANSPORTATION AND TREATMENT BETWEEN CITY OF
AUSTIN AND CITY OF ROUND ROCK
THE STATE OF TEXAS )
)
COUNTY OF TRAVIS
KNOW ALL BY THESE PRESENTS:
THIS AGREEMENT is made by and between the City of Austin, a Texas home rule
municipal corporation chartered under Article XI, Sec. 5 of the Texas Constitution
( "Austin ") and the City of Round Rock, also a Texas home rule municipal corporation
chartered under Article XI, Sec. 5 of the Texas Constitution ( "Round Rock ").
RECITALS:
1.01. On or about December 16, 1985, the Brushy Creek Water Control and
Improvement District No. 1 of Williamson and Milam Counties (the "WCID "), Austin,
Round Rock and Williamson County Municipal Utility District No. 2 (now called "Brushy
Creek Municipal Utility District ") and Williamson County Municipal Utility District No. 3
entered into an interlocal agreement (the "1985 Agreement ") setting forth terms and
conditions for the design, construction, operation and maintenance of a regional
wastewater transportation and treatment system known as the "Brushy Creek Regional
Wastewater System" (the "Regional System ") intended to provide wastewater
collection, treatment, and disposal services for their respective customers in the Upper
Brushy Creek Watershed.
1.02. Williamson County MUD No. 2 later withdrew from participation, Williamson
County MUD No. 3 was annexed and dissolved by the City of Cedar Park, and the 1985
Agreement later expired of its own terms.
1.03. On or about April 11, 1988, Austin, Round Rock and the WCID entered into a
certain "1988 Wastewater Disposal Agreement" which, as amended, set forth terms
and conditions and reaffirmed the desire of the parties to participate in the joint
financing, construction, operation and maintenance of a downscaled version of the
Regional System intended to provide wastewater transportation and treatment services
for that portion of the Upper Brushy Creek Watershed located within the respective
corporate limits and /or extraterritorial jurisdiction of Austin and Round Rock with the
WCID acting as project manager. Round Rock's East Wastewater Treatment Plant was
to provide treatment capacity for the Regional System pending the construction of an
expanded Regional System plant at the East Wastewater Treatment Plant site.
1.04. On or about June 30, 1989, Austin, Round Rock, and the WCID executed that
certain "Interim Wastewater Disposal Agreement (the "1989 Interim Agreement ")
whereunder the WCID secured interim wastewater transportation and treatment
services from Round Rock to provide interim wastewater transportation and treatment
services for customers served by Austin pending the construction of the Regional
System Treatment Plant
1.05. In the intervening years, the WCID acquired in its name and for the benefit of
Round Rock and Austin, engineering studies, a wastewater discharge permit, and
certain easements and property rights, and constructed portions of the proposed
wastewater collection and transportation components of the Regional System. In
addition, Round Rock and Austin each acquired or constructed in their own name land,
wastewater facilities and property rights in contemplation of their later dedication to the
Regional System. In 1990 and 1993, respectively, Austin entered into agreements to
provide wholesale wastewater service to Fern Bluff MUD and Brushy Creek MUD from
the Regional System.
1.06. Austin and Round Rock later determined that, due to the withdrawal of all
participants except Austin and Round Rock and the consequent downscaling of the
Regional System, the further participation of the WCID as project manager was no
longer required and that they could more efficiently conduct the joint financing,
acquisition, construction, operation, maintenance, and decommissioning of the Regional
System.
1.07. As a consequence of this determination, on September 14, 1994, Austin, Round
Rock and the WCID entered into that certain "Agreement for Termination of Brushy
Creek Regional Wastewater Disposal Agreement" setting forth terms for termination
of the 1988 Wastewater Disposal Agreement, for transfer to Austin and Round Rock of
all Regional System Assets acquired by the WCID, and for assumption by Austin and
Round Rock of all Regional System obligations, liabilities and responsibilities.
1.08. The 1989 Interim Agreement (that involved the WCID) was also terminated under
the terms of that certain "Agreement Terminating Interim Wastewater Disposal
Agreement dated September 19, 1994, and on September 19, 1996, Round Rock and
Austin entered into another "Interlocal Agreement for Interim Wastewater Transportation
and Treatment Capacity" (the "1996 Interim Agreement ") that set forth terms and
conditions under which Round Rock would provide to Austin, for a period of four (4)
years, wastewater transportation and treatment service from its excess capacity in
components of the Regional System owned by Round Rock.
1.09. By virtue of special legislation passed in 1995, Brushy Creek MUD and Fern Bluff
MUD, both customers of Austin, were permitted to remove themselves from Austin's
extraterritorial jurisdiction and other legislation was passed allowing the transfer of large
portions of the Upper Brushy Creek Watershed from Austin's extraterritorial jurisdiction
to Cedar Park. These actions led Austin to delay financial participation with Round
Rock for an expansion of the East Plant imminently needed by Round Rock and LCRA
sought financial participation from the Lower Colorado River Authority ( "LCRA ") and
Brazos River Authority "BRA ").
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1.10. On July 12, 1996, Round Rock entered into a certain "Agreement for Acquisition
of Wastewater System Assets," a "Wastewater Disposal Agreement," and a
"Supplemental Agreement" whereunder LCRA acquired Round Rock's interest in Round
Rock's Wastewater Treatment Plants and Round Rock's share in the other Regional
System Assets and Round Rock agreed to become a customer of LCRA/BRA. LCRA
has also acquired another share of the Regional System Assets that had been
previously transferred from Round Rock to Cedar Park in 1996.
1.11. In the intervening years, LCRA and BRA also pursued negotiations for an
agreement with Austin under which LCRA would acquire Austin's share of the Regional
System assets and become a customer of LCRA/BRA in the Regional System and are
in the process of concluding the same. LCRA/BRA have pursued separate negotiations
under which Brushy Creek MUD and Fem Bluff MUD, currently customers of Austin,
would become customers of LCRA/BRA in the Regional System and, toward that end,
Austin is also pursuing agreements to terminate its wastewater service agreements with
Brushy Creek MUD and Fern Bluff MUD based on their becoming customers of
LCRA/BRA.
1.12. Round Rock and Austin acknowledge that Austin will no longer need interim
wastewater transportation and treatment services from Round Rock under the 1996
Interim Agreement if Brushy Creek MUD and Fern Bluff MUD terminate their contracts
with Austin and become customers of LCRA/BRA and if Austin conveys its assets to
LCRA/BRA and becomes a customer of LCRA/BRA.
1.13. Accordingly, Round Rock and Austin desire to set forth in writing the terms and
conditions for termination of the 1996 Interim Agreement based on the occurrence of
the contingencies described above.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
agreements and covenants set forth below, Round Rock and Austin hereby agree as
follows:
II.
TERMINATION OF 1996 INTERIM AGREEMENT
2.01. Agreement to Terminate 1996 Interim Agreement. The parties, and each of
them, agree that the Interim Wastewater Service Agreement previously executed by
and between Austin and Round Rock shall be terminated in accordance with the
provisions of this Agreement.
2.02. Description of Conditions Precedent to Termination of Interim Agreement.
Subject to the further terms and conditions of this Agreement, Austin and Round Rock,
individually and collectively, agree that, upon the occurrence of all of the following
conditions precedent, the Interim Wastewater Service Agreement previously executed
by and between them will terminate and be of no further force and effect:
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(a) Execution of this Agreement by the authorized representatives of Austin
and Round Rock, respectively;
(b) Acquisition by LCRA of Austin's assets in the Brushy Creek Regional
Wastewater Project;
(c) Acquisition by LCRA of assets owned by Brushy Creek MUD and Fern
Bluff MUD that are necessary for LCRA/BRA to provide wastewater services to Brushy
Creek MUD and Fern Bluff MUD, respectively;
(d) Termination of the Wholesale Wastewater Service Agreement under
which Austin has previously provided wholesale wastewater service to Brushy Creek
MUD;
(e) Termination of the Wholesale Wastewater Service Agreement under
which Austin has previously provided wholesale wastewater service to Fern Bluff MUD;
and
(f) Written certification from the Director of the City of Austin Water and
Wastewater Utility to Jim Nuse, Director of the City of Round Rock Public Works
Department confirming that all conditions precedent described in (a) through (e) above
have been satisfied.
2.03. Mutual Release of Claims. The parties acknowledge their intention to conclude,
compromise and resolve all matters arising from the 1996 Interim Agreement and to
commence their respective contractual relationships with LCRA/BRA for wastewater
service from the Brushy Creek Regional Wastewater System assets managed by
LCRA/BRA. Therefore, upon the occurrence of all conditions precedent to the
termination of the 1996 Interim Agreement described above, Round Rock and Austin,
and each of them, on their behalf and on behalf of their respective officers, agents,
employees, successors and assigns, and any other party claiming by or through said
parties, agree and do hereby mutually release, discharge and fully acquit one another of
and from any and all rights, obligations, claims, and causes of action, whether now
known or not known, arising directly or indirectly, in any manner from or by virtue of the
1996 Interim Agreement; provided, however, that the foregoing mutual release shall not
release or discharge any rights or obligations of the parties arising under this
Agreement for Termination of Interim Wastewater Service Agreement Between City of
Austin and City of Round Rock or any billings or claims for payment by Round Rock to
Austin for wastewater service provided to Austin by Round Rock on or before the
termination of the 1996 Interim Agreement hereunder.
4
III.
GENERAL PROVISIONS
3.01. No Oral Modification. This Agreement may not be modified, amended, or
altered except by an agreement in writing signed by the authorized representatives of
Austin and Round Rock.
3.02. Governing Law. This Agreement has been prepared, is being executed and
delivered, and is intended to be performed in the State of Texas, and the substantive
laws of such state shall govern the validity, construction, enforcement, and
interpretation of this Agreement. Venue of any case or controversy arising under or
pursuant to this Agreement shall lie in Travis County, Texas.
3.03. Severability. If any covenant, provision, or agreement of this Agreement shall
be held illegal, invalid, or unenforceable under present or future laws effective during
the term of this Agreement, then and in that event, it is the intention of the parties hereto
that the remainder of this Agreement shall not be affected thereby, and that this
Agreement shall otherwise continue in full force and effect.
3.04. Entire Agreement. This Agreement embodies the entire agreement between
the parties, and supersedes all prior or contemporaneous agreements and
understandings of the parties, if any, relating to the subject matter hereof.
3.05. Binding Effect and Assignment. The terms of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors,
assigns, and legal representatives; provided, however, that neither party hereto may,
without the prior written consent of the other, assign any rights, powers, duties or
obligations hereunder; and further provided, however, that this Agreement shall not
inure to the benefit of any party other than the parties to the Agreement.
3.06. Headings. Section headings are for convenience of reference only and shall in
no way affect the interpretation of this Agreement.
3.07. Negotiation by Counsel; Interpretation. The parties acknowledge that each
party and its counsel have reviewed and revised this agreement, and agree that the
normal rule of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Agreement or any
amendments or exhibits hereto.
3.08. Authority of Signatory. Each of the signatories hereto individually represent
and warrant that such signatory has full right and authority to execute this Agreement on
behalf of the party named herein, and that this Agreement is a valid and binding
obligation of such party, subject to its terms.
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3.09. Duplicate Originals. This Agreement may be executed in duplicate originals
each of equal dignity.
3.10. Effective Date. This Agreement shall be effective from and after the execution
of this Agreement by the respective authorized representatives of the Cities.
APPROVED AS TO FORM:
sist • nt City ttorney
By:
Tel: (512) 499 -2304
Fax: (512) 499 -2964
CITY OF AUSTIN, a Texas
municipal corporation:
-1
Attn: City Manager
Tel: (512) 218 -5400
Fax: (512) 218 -7097
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Toby F7 mett Futrell
Deputy City Manager
Date: `O LIx
Address: City of Austin
P.O. Box 1088
Austin, Texas 78767 -1088
Attn: Toby Hammett Futrell,
Deputy City Manager
ROUN I ROCK:
By: 1% .. ri 0 1"
Ro in A. Stluka, Jr.,
Date: f -a0p" o0
yor
Address: City of Round Rock
221 E. Main St.
Round Rock, Texas 78664
THE STATE OF TEXAS 0
0
COUNTY OF TRAVIS 0
THIS INSTRUMENT was acknowledged before me on this '7 " of a , 2000,
by Toby Hammett Futrell, Deputy City Manager of the City o # # # # #f Austin, a Texas municipal
corporation, on behalf of said municipal corporation.
444 P`e,' GL RIA L. AGUILRR
No x68
PuNlc.51at X7.02
41: NIY comp-assign EXPlree02-
THE STATE OF TEXAS D
COUNTY OF WILLIAMSON D
CHRISTINE R. MARTINEZ
- • I MY COMMISSION EXPIRES
August 5, 2001
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(Rev. 9/28/00)
1
otary Public, Stat =(f Texas
Typed /Printed Name of Notary
My Commission Expires:
THIS INSTRUMENT was acknowledged before me on this o day ofSepreinge .
2000, by Robert A. Stluka, Jr., Mayor of the City of Round Rock, a Texas municipal
corporation, on behalf of said municipal corporation.
Notary Public, State of Texas
0,1-1-121sue, E. mAerwe7)
Typed /Printed Name of Notary
My Commission Expires: 8.-5-01