R-03-05-22-11D3 - 5/22/2003THE STATE OF TEXAS
CITY OF ROUND ROCK
COUNTY OF WILLIAMSON
That this Bulk Water Sale Agreement (hereinafter referred to as the "Agreement ") is
made and entered into by and between Seller, the CITY OF ROUND ROCK, TEXAS
(hereinafter referred to as the "City "), a home -rule municipal corporation whose offices are
located at 221 East Main Street, Round Rock, Texas, 78664, and Purchaser,
ZACHRY /GILBERT CONSTRUCTORS (hereinafter referred to as "ZGC "), whose offices are
located at 527 Logwood, San Antonio, Texas, 78221.
R- o3- o5 -aa- / D3
BULK WATER SALE AGREEMENT
RECITALS
WHEREAS, the City is the owner of its water supply, water distribution systems,
waterlines, supplemental lines, pipes, conduits, valves, vaults, manholes, ventilators, hydrants,
equipment, improvements, and all appurtenances thereto; and
WHEREAS, ZGC desires to purchase and acquire from the City a supply of water for use
in its construction activities related to the State Highway 45 project, specifically for use in a
concrete batch plant and other associated uses;
NOW, THEREFORE, for and in consideration of the purchase price and the supply of
water, and for the mutual benefits to the parties pursuant to this Agreement, the receipt and
sufficiency of which are hereby acknowledged, the City and ZGC hereby agree as follows:
ARTICLE 1
PROVISION OF BULK WATER SUPPLY
1.01 The City agrees to sell ZGC such amounts of water as are reasonably necessary
for use in its construction activities related to the State Highway 45 project, specifically for use
in a concrete batch plant and other associated uses. Such bulk water sales shall be made on an
as- needed basis, and shall never exceed the maximum agreed amount of 6 million gallons per
one -month period.
1.02 The sole take -point for such water shall be from the City's waterline located on
County Road 172, and such location is more particularly described in Exhibit "A" attached
hereto and incorporated herein for all appropriate purposes. This Agreement shall cover only
such specified facility and no others.
1
KNOW ALL BY THESE PRESENTS:
1.03 Within thirty (30) days of the date of signing of this Agreement, ZGC shall
submit a conceptual plan for approval by the City Engineer. Such conceptual plan shall detail
the removal of one existing fire hydrant on the City's waterline located on County Road 172, and
the subsequent placement thereon of a water meter to be connected to the remaining six -inch (6 ")
water stub. Such engineered plans shall detail the construction and specifications of the
proposed waterline tie -in including the meter, backflow preventer, and all associated
appurtenances. It is expressly understood and agreed by and between the parties that ZGC shall
conduct no work on the waterline tie -in prior to receiving the City Engineer's written approval of
submitted plans, and prior to completing a pre- construction conference with the City. It is
further expressly understood and agreed by and between the parties that ZGC shall be solely
responsible for all construction costs including meter purchase from the City, traffic control, and
all other related costs.
1.04 At the expiration of the term of this Agreement, or at the termination of this
Agreement as provided herein, or at the time that ZGC ceases to purchase bulk water under this
Agreement, ZGC shall be solely responsible for re- establishing a functioning fire hydrant at the
take -point on the City's waterline located on County Road 172. Such re- establishment of a
functioning fire hydrant shall be as per the City's standards and specifications.
1.05 It is expressly understood and agreed by and between the parties hereto that,
following the City's approval of ZGC's conceptual plan and during the entire term of this
Agreement, the City shall own and maintain the referenced water meter and associated
appurtenances. It is further expressly understood and agreed by and between the parties that
ZGC shall own and maintain all fixtures, piping and appurtenances located beyond the water
meter, and that ZGC shall have sole responsibility for maintaining the backflow preventer in
accordance with all TCEQ standards.
ARTICLE 2
RATES
2.01 During the entire term of this Agreement, ZGC agrees to pay the City for all bulk
water taken by ZGC at the following rates:
May $3.82 per 1,000 gallons
June $3.82 per 1,000 gallons
July $3.82 per 1,000 gallons
August $3.82 per 1,000 gallons
September $3.82 per 1,000 gallons
October $1.91 per 1,000 gallons
November $1.91 per 1,000 gallons
December $1.91 per 1,000 gallons
January $1.91 per 1,000 gallons
February $1.91 per 1,000 gallons
2
March $1.91 per 1,000 gallons
April $1.91 per 1,000 gallons
2.02 The City shall not charge ZGC impact fees on this temporary bulk connection.
2.03 The City shall render a monthly bill to ZGC for bulk water taken. Payment in full
by ZGC shall be tendered to the City not later than the twentieth (20` day following the mailing
of the monthly bill. Failure by ZGC to make two (2) successive payments (as and when due, as
herein specified, and within the allowed time period) shall give the City authority to suspend
ZGC's right to remove water and to terminate all obligations of the City hereunder; provided,
however, the City shall have in each instance first provided ZGC with written notice of such
alleged default and ZGC shall have failed to remedy or in good faith commence remedy of such
default within five (5) days of receipt of same before the City shall have the right to exercise its
right of suspension hereunder.
ARTICLE 3
TERM
3.01 This Agreement shall be effective on the date it has been signed by every party
hereto, and shall remain in full force and effect unless and until it expires by operation of the
term indicated herein, or is terminated as provided herein.
3.02 The term of this Agreement shall be for a period of six (6) years from the date of
execution. Thereafter, there shall be no automatic renewal or extension of this Agreement.
3.03 It is contemplated by the parties that, if at the end of the stated term a longer term
is mutually desired, then and in that event another agreement may be negotiated providing for
payment of impact fees and other issues.
ARTICLE 4
NON - EXCLUSIVITY
4.01 ZGC's right to purchase bulk water hereunder is non - exclusive, and the City shall
have the right to sell or give away to other parties, or otherwise dispose of, any and all water
from its sources not purchased by ZGC under this Agreement.
ARTICLE 5
APPLICABILITY OF DROUGHT CONTINGENCIES
5.01 The City may continue to sell bulk water to ZGC as provided in this Agreement
so long as there is a surplus supply of water. However, the City's obligation hereunder is subject
to the capacity of the City' s facilities to provide water to ZGC after meeting the municipal,
domestic, commercial, and industrial needs within the City's corporate limits, and after meeting
any contractual obligations existing as of the date of execution of this Agreement. After meeting
3
such pre- existing obligations, City agrees not to disrupt its obligations to ZGC herein for any
other customers of bulk water agreements entered into by City after the date of this Agreement.
ARTICLE 6
TERMINATION
6.01 In the event of water shortage, or in the event of mechanical malfunction or
failure, the City may at its sole option discontinue selling bulk water to ZGC upon sixty (60)
days' written notice.
6.02 It is agreed and understood ZGC that either party may cancel or terminate this
Agreement for convenience upon one hundred twenty (120) days' written notice to the other
party.
ARTICLE 7
COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
7.01 ZGC and any of its consultants, agents, employees and subcontractors shall
comply with all applicable federal and state laws, the Charter and all ordinances of the City of
Round Rock, as same exist now or as they are amended from time to time, and with all
applicable rules and regulations promulgated by local, state and national boards, bureaus and
agencies.
7.02 ZGC agrees to take all reasonable precautions to maintain the sanitary condition
of the City' s water supply system.
ARTICLE 8
ASSIGNMENT AND DELEGATION
8.01 The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party shall
assign, sublet or transfer any interest in this Agreement without prior written authorization of the
other party.
ARTICLE 9
NOTICES
9.01 All notices and other communications in connection with this Agreement shall be
in writing and shall be considered given as follows:
1. When delivered personally to the recipient' s address as stated in this Agreement;
or
2. Three (3) days after being deposited in the United States mail, with postage
4
prepaid to the recipient's address as stated in this Agreement.
Notice to ZGC:
Notice to City:
City Manager
221 East Main Street
Round Rock, TX 78664
AND TO:
9.02 Nothing contained herein shall be construed to restrict the transmission of routine
communications between representatives of the City and ZGC.
ARTICLE 10
APPLICABLE LAW; ENFORCEMENT AND VENUE
10.01 This Agreement shall be enforceable in Round Rock, Williamson County, Texas,
and if legal action is necessary by either party with respect to the enforcement of any or all of the
terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This
Agreement shall be governed by and construed in accordance with the laws and court decisions
of the State of Texas.
ARTICLE 11
EXCLUSIVE AGREEMENT
ZGC /Gilbert Constructors
Attention: Fred E. Lueck
527 Logwood
San Antonio, TX 78221
City Attorney
309 East Main Street
Round Rock, TX 78664
11.01 This document, and all appended documents, constitutes the entire Agreement
between ZGC and the City. This Agreement may only be amended or supplemented by mutual
agreement of the parties hereto in writing.
ARTICLE 12
DISPUTE RESOLUTION
12.01 If a dispute or claim arises under this Agreement, the parties agree to first try to
resolve the dispute or claim by appropriate internal means, including referral to each party's
senior management. If the parties cannot reach a mutually satisfactory resolution, then and in
that event any such dispute or claim will be sought to be resolved with the help of a mutually
selected mediator. If the parties cannot agree on a mediator, the City and ZGC shall each select a
mediator and the two mediators shall agree upon a third mediator. Any costs and fees, other than
attomey fees, associated with the mediation shall be shared equally by the parties. Failure of the
parties to reach an acceptable mediation to either of them shall permit either party thereafter to
proceed with suit in the competent courts of law for actions brought this Agreement.
5
12.02 The City and ZGC hereby expressly agree that no claims or disputes between the
parties arising out of or relating to this Agreement or a breach thereof shall be decided by any
arbitration proceeding, including without limitation, any proceeding under the Federal
Arbitration Act (9 USC Section 1 -14) or any applicable state arbitration statute.
ARTICLE 13
SEVERABILITY
13.01 The invalidity, illegality, or unenforceability of any provision of this Agreement
or the occurrence of any event rendering any portion or provision of this Agreement void shall in
no way affect the validity or enforceability of any other portion or provision of this Agreement.
Any void provision shall be deemed severed from this Agreement, and the balance of this
Agreement shall be construed and enforced as if this Agreement did not contain the particular
portion or provision held to be void. The parties further agree to amend this Agreement to
replace any stricken provision with a valid provision that comes as close as possible to the intent
of the stricken provision. The provisions of this section shall not prevent this entire Agreement
from being void should a provision of the essence to this Agreement be determined void.
ARTICLE 14
FORCE MAJEURE
14.01 In the event either party is rendered unable, wholly or in part, by force majeure to
carry out any of its obligations under this Agreement, then the obligations of that party, to the
extent affected by the force majeure and to the extent that due diligence is being used to resume
performance at the earliest practicable time, shall be suspended during the continuance of the
inability. The cause, as far as possible, shall be remedied with all reasonable diligence.
14.02 The term "force majeure" includes acts of God, strikes, lockouts or other
industrial disturbances, acts of the public enemy, orders of the govemment of the United States
or the State of Texas or any civil or military authority, insurrections, riots, terrorism, pestilence,
epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts,
droughts, arrests, restraints of government and people, civil disturbances, explosions, breakage or
accidents to equipment, pipelines, or canals, partial or entire failure of water supply, and any
other inabilities of either party, whether similar to those enumerated or otherwise, that are not
within the control of the party claiming the inability and that could not have been avoided by the
exercise of due diligence and care. It is understood and agreed that the settlement of strikes and
lockouts shall be entirely within the discretion of the party having the difficulty and that the
requirement that any force majeure be remedied with all reasonable dispatch shall not require the
settlement of strikes and lockouts by acceding to the demands of the opposing party if the
settlement is unfavorable to it in the judgment of the party having the difficulty.
14.03 Force majeure shall relieve the City from liability to ZGC for failure to provide
water service due to any inability covered by this article.
6
■
By:
IN WITNESS WHEREOF, the City and ZGC hereby execute this Agreement.
CITY OF ROUND ROCK, T
ell, ayor
Date Signed: 5 a 03
A ITEST:
e
Christine R. Martinez, City Secretary
ZGC /GILBERT CONSTRUCTORS
7
tomey in Fact
achry Construction Corporation
Date Signed: 5 -13 -03
A
ZACHRY
Zachry /Gilbert Constructors
Alysha L. Girard
City of Round Rock
2008 Enterprise Drive
Round Rock, TX 78664
Ref: MG 2002 (247)
SH 45/ Loop 1 Williamson County
Monthly Meter Fee
Dear Ms. Girard:
May 21, 2003
Zachry / Gilbert Constructors agrees to pay the monthly fee of $238.40 in addition to the
monthly rate per gallon.
If there are any questions or if we can be of service please do not hesitate to call us at the
following number (512) 218 -8058.
Sincerely,
*-1
Michael D. Ingram
Project Manager
,e- 03 - 0£ ,W-li1)3
RECD MAY 2 7 2003
2700B CR 172
Round Rock, TX 78681
Ph: 512 - 218 -8058
Fax: 512-218-8476
To: The File
From: Steve Sheets, City Attorney
Date: May 23, 2003
Sheets & Crossfield, P.C.
ATTORNEYS AT LAW
309 rase Main Street • Round Rock, TX 78664 -5246
phone 512 -255 -0877 • fax 512- 255 -8986
MEMO TO FILE
Re: Resolution No. R- 03- 05- 22- 11.D.3; Differences in exhibit and final document
After the Exhibit A was attached to the Resolution and included in the packet for the Council, minor
changes to the Bulk Water Sale Agreement were agreed to which do not substantially alter the terms
or intent of the Agreement. Specifically, the following changes were made: (i) Purchaser's
abbreviation was changed from "Zachry" to "ZGC"; (ii) an additional phrase was added to the last
sentence of 2.03 regarding notice provisions; and (iii) an additional sentence was added to 5.01
regarding other bulk water agreements with the City.
It is my opinion that these changes are so minor that the Council's authorization to execute the
Agreement attached as Exhibit A is sufficient to also authorize the execution of the revised
Agreement.
RESOLUTION NO. R -03- 05- 22 -11D3
WHEREAS, the City of Round Rock is the owner of its water
supply, water distribution systems, and waterlines, and
WHEREAS, Zachry /Gilbert Constructors desires to purchase and
acquire from the City a supply of water for use in its construction
activities related to the State Highway 45 expansion project, and
WHEREAS, the City wishes to enter into a Bulk Water Sale
Agreement with Zachry /Gilbert Constructors, 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 Bulk Water Sale Agreement with Zachry /Gilbert
Constructors, a copy of said agreement being attached hereto as Exhibit
" A" 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.
RESOLVED this the 22'' day of May,
2.03
?PFLesk[op \: :OMM /WORWOX /0: /1412O15/RESOLIITI /R30522D3- WP0 /SC
CHRISTINE R. MARTINEZ, City Secreta
j
NY �cW� Mayor
City of Round Rock, Texas
THE STATE OF TEXAS
CITY OF ROUND ROCK
COUNTY OF WILLIAMSON
BULK WATER SALE AGREEMENT
RECITALS
KNOW ALL BY THESE PRESENTS:
That this Bulk Water Sale Agreement (hereinafter referred to as the "Agreement ") is
made and entered into by and between Seller, the CITY OF ROUND ROCK, TEXAS
(hereinafter referred to as the "City"), a home -rule municipal corporation whose offices are
located at 221 East Main Street, Round Rock, Texas, 78664, and Purchaser,
ZACHRY /GILBERT CONSTRUCTORS (hereinafter referred to as "Zachry"), whose offices are
located at 527 Logwood, San Antonio, Texas, 78221.
WHEREAS, the City is the owner of its water supply, water distribution systems,
waterlines, supplemental lines, pipes, conduits, valves, vaults, manholes, ventilators, hydrants,
equipment, improvements, and all appurtenances thereto; and
WHEREAS, Zachry desires to purchase and acquire from the City a supply of water for
use in its construction activities related to the State Highway 45 project, specifically for use in a
concrete batch plant and other associated uses;
NOW, THEREFORE, for and in consideration of the purchase price and the supply of
water, and for the mutual benefits to the parties pursuant to this Agreement, the receipt and
sufficiency of which are hereby acknowledged, the City and Zachry hereby agree as follows:
1.01 The City agrees to sell Zachry such amounts of water as are reasonably necessary
for use in its construction activities related to the State Highway 45 project, specifically for use
in a concrete batch plant and other associated uses. Such bulk water sales shall be made on an
as- needed basis, and shall never exceed the maximum agreed amount of 6 million gallons per
one -month period.
1.02 The sole take -point for such water shall be from the City's waterline located on
County Road 172, and such location is more particularly described in Exhibit "A" attached
hereto and incorporated herein for all appropriate purposes. This Agreement shall cover only
such specified facility and no others.
0,vdo.v \jay.is6000495O4.DOC3s
ARTICLE 1
PROVISION OF BULK WATER SUPPLY
EXHIBIT
1.03 Within thirty (30) days of the date of signing of this Agreement, Zachry shall
submit a conceptual plan for approval by the City Engineer. Such conceptual plan shall detail
the removal of one existing fire hydrant on the City's waterline located on County Road 172, and
the subsequent placement thereon of a water meter to be connected to the remaining six -inch (6 ")
water stub. Such engineered plans shall detail the construction and specifications of the
proposed waterline tie -in including the meter, backflow preventer, and all associated
appurtenances. It is expressly understood and agreed by and between the parties that Zachry
shall conduct no work on the waterline tie -in prior to receiving the City Engineer's written
approval of submitted plans, and prior to completing a pre - construction conference with the City.
It is further expressly understood and agreed by and between the parties that Zachry shall be
solely responsible for all construction costs including meter purchase from the City, traffic
control, and all other related costs.
1.04 At the expiration of the term of this Agreement, or at the termination of this
Agreement as provided herein, or at the time that Zachry ceases to purchase bulk water under
this Agreement, Zachry shall be solely responsible for re- establishing a functioning fire hydrant
at the take -point on the City's waterline located on County Road 172. Such re- establishment of a
functioning fire hydrant shall be as per the City's standards and specifications.
1.05 It is expressly understood and agreed by and between the parties hereto that,
following the City's approval of Zachry's conceptual plan and during the entire term of this
Agreement, the City shall own and maintain the referenced water meter and associated
appurtenances. It is further expressly understood and agreed by and between the parties that
Zachry shall own and maintain all fixtures, piping and appurtenances located beyond the water
meter, and that Zachry shall have sole responsibility for maintaining the backflow preventer in
accordance with all TCEQ standards.
ARTICLE 2
RATES
2.01 During the entire term of this Agreement, Zachry agrees to pay the City for all bulk
water taken by Zachry at the following rates:
May $3.82 per 1,000 gallons
June $3.82 per 1,000 gallons
July $3.82 per 1,000 gallons
August $3.82 per 1,000 gallons
September $3.82 per 1,000 gallons
October $1.91 per 1,000 gallons
November $1.91 per 1,000 gallons
December $1.91 per 1,000 gallons
January $1.91 per 1,000 gallons
February $1.91 per 1,000 gallons
March $1.91 per 1,000 gallons
April $1.91 per 1,000 gallons
2
2.02 The City shall not charge Zachry impact fees on this temporary bulk connection.
2.03 The City shall render a monthly bill to Zachry for bulk water taken. Payment in
full by Zachry shall be tendered to the City not late than the twentieth (20 day following the
mailing of the monthly bill. Failure by Zachry to make two (2) successive payments (as and
when due, as herein specified, and within the allowed time period) shall give the City authority
to suspend Zachry's right to remove water and to terminate all obligations of the City hereunder.
ARTICLE 3
TERM
3.01 This Agreement shall be effective on the date it has been signed by every party
hereto, and shall remain in full force and effect unless and until it expires by operation of the
term indicated herein, or is terminated as provided herein.
3.02 The term of this Agreement shall be for a period of six (6) years from the date of
execution. Thereafter, there shall be no automatic renewal or extension of this Agreement.
3.03 It is contemplated by the parties that, if at the end of the stated term a longer term
is mutually desired, then and in that event another agreement may be negotiated providing for
payment of impact fees and other issues.
ARTICLE 4
NON - EXCLUSIVITY
4.01 Zachry's right to purchase bulk water hereunder is non - exclusive, and the City
shall have the right to sell or give away to other parties, or otherwise dispose of, any and all
water from its sources not purchased by Zachry under this Agreement.
ARTICLE 5
APPLICABILITY OF DROUGHT CONTINGENCIES
5.01 The City may continue to sell bulk water to Zachry as provided in this Agreement
so long as there is a surplus supply of water. However, the City's obligation hereunder is subject
to the capacity of the City's facilities to provide water to Zachry after meeting the municipal,
domestic, commercial, and industrial needs within the City's corporate limits, and after meeting
any contractual obligations existing as of the date of execution of this Agreement.
ARTICLE 6
TERMINATION
6.01 In the event of water shortage, or in the event of mechanical malfunction or
failure, the City may at its sole option discontinue selling bulk water to Zachry upon sixty (60)
days' written notice.
3
6.02 It is agreed and understood by Zachry that the City may cancel or terminate this
Agreement for convenience upon one hundred twenty (120) days' written notice to Zachry.
ARTICLE 7
COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
7.01 Zachry and any of its consultants, agents, employees and subcontractors shall
comply with all applicable federal and state laws, the Charter and all ordinances of the City of
Round Rock, as same exist now or as they are amended from time to time, and with all
applicable rules and regulations promulgated by local, state and national boards, bureaus and
agencies.
7.02 Zachry agrees to take all reasonable precautions to maintain the sanitary condition
of the City's water supply system.
ARTICLE 8
ASSIGNMENT AND DELEGATION
8.01 The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party shall
assign, sublet or transfer any interest in this Agreement without prior written authorization of the
other party.
ARTICLE 9
NOTICES
9.01 All notices and other communications in connection with this Agreement shall be
in writing and shall be considered given as follows:
1. When delivered personally to the recipient's address as stated in this Agreement;
or
2. Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Zachry:
Notice to City:
City Manager
221 East Main Street
Round Rock, TX 78664
Zachry/Gilbert Constructors
527 Logwood
San Antonio, TX 78221
AND TO:
4
City Attomey
309 East Main Street
Round Rock, TX 78664
9.02 Nothing contained herein shall be construed to restrict the transmission of routine
communications between representatives of the City and Zachry.
ARTICLE 10
APPLICABLE LAW; ENFORCEMENT AND VENUE
10.01 This Agreement shall be enforceable in Round Rock, Williamson County, Texas,
and if legal action is necessary by either party with respect to the enforcement of any or all of the
terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This
Agreement shall be governed by and construed in accordance with the laws and court decisions
of the State of Texas.
ARTICLE 11
EXCLUSIVE AGREEMENT
11.01 This document, and all appended documents, constitutes the entire Agreement
between Zachry and the City. This Agreement may only be amended or supplemented by mutual
agreement of the parties hereto in writing.
ARTICLE 12
DISPUTE RESOLUTION
12.01 If a dispute or claim arises under this Agreement, the parties agree to first try to
resolve the dispute or claim by appropriate internal means, including referral to each party's
senior management. If the parties cannot reach a mutually satisfactory resolution, then and in
that event any such dispute or claim will be sought to be resolved with the help of a mutually
selected mediator. If the parties cannot agree on a mediator, the City and Zachry shall each
select a mediator and the two mediators shall agree upon a third mediator. Any costs and fees,
other than attorney fees, associated with the mediation shall be shared equally by the parties.
12.02 The City and Zachry hereby expressly agree that no claims or disputes between
the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any
arbitration proceeding, including without limitation, any proceeding under the Federal
Arbitration Act (9 USC Section 1 -14) or any applicable state arbitration statute.
ARTICLE 13
SEVERABILITY
13.01 The invalidity, illegality, or unenforceability of any provision of this Agreement
or the occurrence of any event rendering any portion or provision of this Agreement void shall in
no way affect the validity or enforceability of any other portion or provision of this Agreement.
Any void provision shall be deemed severed from this Agreement, and the balance of this
Agreement shall be construed and enforced as if this Agreement did not contain the particular
portion or provision held to be void. The parties further agree to amend this Agreement to
5
replace any stricken provision with a valid provision that comes as close as possible to the intent
of the stricken provision. The provisions of this section shall not prevent this entire Agreement
from being void should a provision of the essence to this Agreement be determined void.
ARTICLE 14
FORCE MAJEURE
14.01 In the event either party is rendered unable, wholly or in part, by force majeure to
carry out any of its obligations under this Agreement, then the obligations of that party, to the
extent affected by the force majeure and to the extent that due diligence is being used to resume
performance at the earliest practicable time, shall be suspended during the continuance of the
inability. The cause, as far as possible, shall be remedied with all reasonable diligence.
14.02 The term "force majeure" includes acts of God, strikes, lockouts or other
industrial disturbances, acts of the public enemy, orders 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, restraints of
government and people, civil disturbances, explosions, breakage or accidents to equipment,
pipelines, or canals, partial or entire failure of water supply, and any other inabilities of either
party, whether similar to those enumerated or otherwise, that are not within the control of the
party claiming the inability and that could not have been avoided by the exercise of due diligence
and care. It is understood and agreed that the settlement of strikes and lockouts shall be entirely
within the discretion of the party having the difficulty and that the requirement that any force
majeure be remedied with all reasonable dispatch shall not require the settlement of strikes and
lockouts by acceding to the demands of the opposing party if the settlement is unfavorable to it
in the judgment of the party having the difficulty.
14.03 Force majeure shall relieve the City from liability to Zachry for failure to provide
water service due to any inability covered by this article.
CITY OF ROUND ROCK, TEXAS ZACHRY /GILBERT CONSTRUCTORS
By: By:
Nyle Maxwell, Mayor Printed Name:
Date Signed: Title:
Date Signed:
ATTEST:
IN WITNESS WHEREOF, the City and Zachry hereby execute this Agreement.
Christine R. Martinez, City Secretary
6
DATE: May 15, 2003
SUBJECT: City Council Meeting — May 22, 2003
ITEM: 11.D.3. Consider a resolution authorizing the Mayor to execute a Bulk
Water Sale Agreement with Zachry /Gilbert Constructors for the
purchase of water for use associated with the SH 45 Extension
construction.
Resource: Tom Word, Chief of Public Works Operations
Alysha Girard, Developmental Services Manager
History: The contractor requires a significant amount water for the next phases of
SH45construction including the intersection of MoPac /Loop 1 and SH45.
The City has both the treatment and transmission capacity available for
this bulk water user.
Funding:
Cost: N/A
Source of funds: N/A
Outside Resources: N/A
Impact/Benefit:
Public Comment:
Sponsor:
This contract demonstrates Round Rock's support for and
facilitates the construction of the various SH 45 projects.
N/A
N/A
Mayor
Nyle Maxwell
Mayor Pro -tem
Tom Nielson
Council Members
Alan McGraw
Carrie Pitt
Scot Knight
Isabel Gallahan
Gary Coe
City Manager
Jim Nuse
City Attorney
Stephan L. Sheets
ROUND ROCK, TEXAS
PURPOSE. PASSION. PROSPERITY.
May 30, 2003
Mr. Fred Lueck
Zachry/ Gilbert Constructors
527 Logwood
San Antonio, TX 78221
Dear Fred Lueck:
The Round Rock City Council approved Resolution No. R- 03- 05 -22-
11D3 at their regularly scheduled meeting on May 22, 2003. This
resolution approves a Bulk Water Sale Agreement use in its
construction activities related to the State Highway 45 expansion
project.
Enclosed is a copy of the resolution and agreement for your files. If
you have any questions, please do not hesitate to contact Tom Word at
218 -5555.
Sherri Monroe
Assistant City Secretary
Enclosure
CITY OF ROUND ROCK Administrative Dept, zn East Main Street • Round Rock, Texas 78664
Phone: 5¢.218.5400 • Fax: 5¢,zi8.7097 • www.ctround-rock.tx.us