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R-85-793 - 12/12/1985WHEREAS, Round Rock Water Supply Corporation is the owner of land in Round Rock's ETJ, and WHEREAS, the property owners wish to enter into a utility service agreement, and WHEREAS, said agreement has been submitted to the Round Rock City Council for consideration, and WHEREAS, the City of Round Rock is willing to enter into said utility service 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 a utility service agreement with Round Rock Water Supply Corporation, a copy of said agreement being attached hereto and incorporated herein for all purposes. RESOLVED this /0 day of , } 19 . ATTEST: ,a i. 111 4 /Ai ii_oeL RESOLUTION NO/ 79,5R_ %J /_ MIKE ROBINSON, Mayor City of Round Rock, Texas AGREEMENT FOR CONSTRUCTION OF WASTEWATER TRANSLIISSION FACILITIES AND FOR THE FURNISHING OF WASTEWATER SERVICE BETWEEN CITY OF ROUND ROCK, TEXAS AND ROUND ROCK WATER SUPPLY CORPORATION 0 THE STATE OF TEXAS COUNTY OF WILLIAMSON AGREEMENT FOR CONSTRUCTION OF WASTEWATER TRANSMISSION FACILITIES AND FOR THE FURNISHING OF WASTEWATER SERVICE This Agreement is entered into by and between the CITY OF ROUND ROCK, hereinafter called "City ", a municipal corporation located within Williamson County, Texas, acting by and through its Mayor, and ROUND ROCK WATER SUPPLY CORPORATION, hereinafter called "Customer ", a non - profit water supply corporation, organized and doing business under the laws of the State of Texas, acting by and through its President. W I T N E S S E T H: 1. It has long been the policy of the Texas Water Commission, the state agency charged with preserving and improving the quality of the public waters in the State of Texas, to encourage the development of integrated, area wide Waste collection, treatment and disposal systems to serve the Waste disposal needs of the citizens of the State. it is an objective of the policy to avoid the economic burden to people and adverse impact on the quality of waters of the State which might result from the construction and operation of numerous small Waste treatment and disposal facilities to serve an area when an integrated area wide Waste collection and disposal system for that can be reasonably provided. It is with the foregoing principles in mind that this Agreement is executed. 2. Customer represents that it owns and controls an approximately 278 -acre tract of land (which tract of land shall hereinafter be referred to as "Subdivision "), known locally as Oak Bluff Estates, located within and contiguous to City's extraterritorial jurisdiction, which tract of land is shown on Exhibit "A" attached hereto. 3. Customer has constructed a Wastewater collection system within Subdivision and presently has an application for a permit to construct a Wastewater treatment facility and to discharge treated domestic effluent pending before the Texas Water Commission, which application is currently opposed by City. 4. Customer is willing to design and construct, at Customer's expense, the transmission facilities and appurtenances (hereinafter referred to as "Transmission Facilities ") that are necessary to transport the Wastewater from the Subdivision to the City's Wastewater treatment and disposal facilities (hereinafter referred to as "Plant "), which Plant is under construction as of the date of this Agreement. 5. City is willing to treat and dispose of the Wastewater (hereinafter defined in Section 3.07) collected by the Wastewater collection system located within Subdivision and delivered by Customer to City's Plant. 6. City is willing to charge reasonable, uniform, and non - discriminatory rates for providing Wastewater treatment and disposal services to Customer and Customer is willing to pay City the charges for such services based upon such rates. NOW, THEREFORE, in consideration of the aforementioned recitals, the mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which a is hereby acknowledged by all parties, the City and Customer have agreed and do hereby agree as follows: I. PROCEEDINGS BEFORE THE TEXAS WATER COMlIISSION Section 1.01. Within ten days following the execution of this Agreement by both City and Customer, Customer shall withdraw its application for a Wastewater discharge permit. II. CONSTRUCTION OF WASTEWATER TRANSMISSION AND TREATMENT FACILITIES Section 2.01. Collection System. Customer represents to City that the Wastewater collection system (hereinafter referred to as "System ") located within Subdivision was designed in accordance with the City's technical specifications and the requirements of the Texas Department of Health. Customer further represents to City, from the best information available to Customer as of the date of this Agreement, that the System was installed and constructed in accordance with such plans and specifications and the City's technical specifications, provided, however, such representations by Customer shall not be a warranty of the System. Section 2.02. Transmission Facilities. A. Design and Construction. Customer shall, at Customer's sole expense, design and construct in accordance with plans and specifications approved by the City, the Transmission Facilities from the Subdivision to the headworks at the City's Plant. Customer shall elect, at Customer's sole option, whether, or which portions of, the Tranmission Facilities shall be gravity flow or pressurized. The Transmission Faciities shall include a meter and meter vault located within the boundaries of the tract of land where the City's Plant is located. The Tranmission Facilities shall be sized solely for the projected needs of Subdivision. B. Route. As of the date this Agreement is executed, City and Customer propose that the route of the Transmission Facilities from Oak Bluff to Plant be one of the two alternate routes that are shown on Exhibit "A ". Prior to Customer's preparation of the final plans for the Transmission Facilities, Customer shall inform City of the route that Customer proposes to use. C. Rights -of -Way. Prior to the preparation of final plans, Customer shall obtain easements and right -of -ways for the construction, operation and maintenance of the Transmission Facilities. At the locations along the route that existing right -of -ways and easements are not available for the construction, operation and maintenance of the Transmission Facilities, Customer shall acquire, at Customer's expense, a sanitary sewer right -of -way at least sixteen feet wide, together with an appropriately located twenty -five foot wide temporary construction easement. In the event that Customer is unable to acquire such easements and right -of -ways for the Transmission Facilities by negotiated sale and purchase, City shall assist Customer, at Customer's sole expense, in the acquisition of such easements and right -of -ways by exercising the City's power of eminent domain to the extent permitted by applicable law. In the event that eminent domain proceedings are necessary to acquire the easements for the Transmission Facilities, Customer shall deliver to City a financial guarantee acceptable to the City, in an amount equal to 1.5 times the value of the land taken for the easement and damages, if any, to the remainder of the tract, which value shall be provided by an appraiser employed by the City, plus the estimated costs of acquiring the easement by condemnation. If the award of the special commissioners, or the amount of damages determined upon approval 2 of the award, is greater than 1.5 times the City's appraisal, Customer shall, within ten (10) days of notice to Customer of the award of the special commissioners or the order by the County Court at Law or District Court, provide City an acceptable financial guarantee in the amount of the cost of acquiring the easements for the Transmission Facilities. D. Plans. Prior to commencing construction of the Transmission Facilities, Customer shall submit the final plans and specifications for the Transmission Facilities to the City's engineer for review and approval, which approval shall not be unreasonably withheld or delayed. The design shall include a metered point of delivery located within the site of the City's Plant. E. Inspection. The City's engineer, or his designated representative, may, at City's expense, observe construction of the Transmission Facilities and report any observed deficiencies in construction to the Customer, who shall require the contractor to correct such deficiencies within a reasonable period of time, but prior to substantial completion of construction. F. Ownership. Customer shall retain all right, title, and interest in and shall be solely responsible for the operation and maintenance of the Transmission Facilities up to the meter at the Point of Delivery. G. Meter. At the initial expense of the Customer, a Wastewater volume meter of a design and quality to be determined by the City will be installed at the location determined by the City to be adequate for the purpose of reasonably estimating Wastewater volume. The initial expense to the Customer shall include, but not be limited to the following: (1) Cost of the meter and its acquisition. (2) Engineering and design costs prior to installation of the meter and related fixtures. (3) Installation of the meter and any related fixtures. All initial expenses relating to the meter and related facilities incurred by the City, its agents, suppliers, or contractors shall be paid by the Customer prior to the City rendering the meter operable. Section 2.03. Plant. City shall use its best efforts to diligently continue, without delay or interruption caused by the City, the construction of the City's Plant. WASTEWATER SERVICE 3 Section 3.01. Discharge. Subject to the terms and conditions of this Agreement, and further subject to the completion (as evidenced by the execution of the certificate of substantial comletion) of the construction of the Plant, Customer shall have the right to discharge and City shall have the to accept, Wastewater from Oak Bluff into the Plant in an amount not to exceed 140,000 gallons per day average daily flow measured over a thirty day period of time. • Section 3.02. Point of Entry. Customer shall discharge its Wastewater at a Point of Entry located within the site for the Plant or at such other Point of Entry as may be mutually agreed upon by the City and Customer. It shall be the sole responsibility of Customer to convey its Wastewater to the Point of Entry. Section 3.03. Liability for Damages and Responsibility for Treatment and Disposal of Wastewater. Liability for damages arising from the reception, transportation, delivery and disposal of all Wastewater discharged hereunder shall remain in Customer to the Point of Delivery, and immediately prior to passing through the meter installed at the Point of Delivery, liability for such damages shall pass to the City. As between the party hereto, each party hereto agrees to save and hold the other parties harmless from all claims, demands and causes of action which may be asserted by anyone on account of the reception, transportation, delivery and disposal of Wastewater while the Wastewater is in the control of such party. This covenant is not made for the benefit of any third party. The City takes the responsibility as between the parties hereto for the proper reception, transportation, treatment and disposal of all such Wastewater received by it at Point of Delivery. Section 3.04. Metering. The City will operate and maintain, at its expense, the necessary equipment and devices of standard type for properly measuring all Wastewater to be discharged under this Agreement. Such meter and other equipment shall remain the property of the City. The Customer shall have access to such metering equipment at all reasonable times for inspection and examination, and the reading, calibration and adjustment thereof shall be done by employees or agents of the City in the presence of a representative of Customer if requested by the Customer. All readings of meters will be entered upon proper books of record maintained by the City and a copy of said readings supplied to the Customer. Upon written request Customer may have access to said record books during reasonable business hours. Not more than three times in each year of operation, the City shall calibrate the meter, if requested in writing by the Customer to do so, in the presence of a representative of Customer, and such parties shall jointly observe any adjustments which are made to the meter in case any adjustment is found to be necessary. If, for any reason, the meter is out of service or out of repair, or if, upon any test, the percentage of inaccuracy of the meter is found to be in excess of five percent (5 %), registration thereof shall be corrected for a period of time extending back to the time when such inaccuracy began, if such time is ascertainable, and if not ascertainable, then for a period extending back one -half (1/2) of the time elapsed since the date of the last calibration, but in no event further back than a period of six (6) months. Customer may, at its option and its own expense, install and operate a check meter to check the meter installed by the City, but the measurement for the purpose of this Agreement shall be solely by the City's meters, except as specifically provided to the contrary in this section. All such check meters shall be of standard make and shall be subject, at all reasonable times, to inspection and examination by any employee or agent of the City, but the reading, calibration and adjustment thereof shall be made only by the Customer, except during any period when a check meter may be used under specific written consent by the City for measuring the amount of Wastewater delivered into the Plant, in which case the reading, calibration and adjustment thereof shall be made by the City with like effect as if such check meter or meters had been furnished or installed by the City. Section 3.05. Unit of Measurement. The unit of measurement for Wastewater delivered hereunder shall be one thousand (1,000) gallons, U.S. Standard Liquid Measure. Section 3.06. Quality. The Customer agrees to limit its discharge into the Plant to Wastewater defined by the City as admissible discharges, and to prohibit entry into the Plant of any Wastes that have the characteristics of prohibited discharges, also as defined by the City. Section 3.07. Admissible Discharges. The terms "Waste ", "Wastewater" and "Sewage" mean liquid and water- carried Waste 4 discharged from the sanitary conveniences or other discharge points or pipes from dwellings, business buildings, institutions and other places including garbage which has been shredded to such degree that all particles will be carried freely under flow conditions normally prevailing in public sewers, with ,no particle greater than one -half (1/2) inch in any dimension and the liquid Wastes from industrial processes, and includes any infiltration water that has migrated from the ground into the System. Wastewater discharged into the Plant shall consist only of Wastewater which the Plant is capable of handling, so that: (a) effluent from the Plant meets the current and future legal standards of the Texas Water Commission or of any governmental body having legal authority to set standards for such effluents; and (b) the Plant is not damaged to the extent to cause unnecessary repairs or replacements resulting in increased operation and maintenance expense. The term "Prohibited Waste" means any toxic, hazardous, radioactive or other constituent or element which is unacceptable for treatment by the City. Section 3.08. Ordinances. The City may, from time to time, after giving sixty (60) days notice to Customer, establish by ordinance the quality of Wastewater which will qualify as admissible discharges and be accepted into the Plant from Customer, at the Point of Delivery and to establish the quality of Wastewater which will qualify as prohibited discharges and not be accepted into the Plant. The City may establish standards which are stricter than those required from time to time by applicable law, rule or regulation, provided, however, the City may not estabish any standards to require pretreatment of normal domestic Wastewater unless such treatment is required by applicable federal or State law or regulation. The City shall immediately notify Customer of such ordinances after they are adopted by the City. Customer shall have one hundred and eighty (180) days after the date of adoption of any such ordinance to bring the quality of its Wastewater into compliance with such ordinance unless a shorter period is required by applicable State or federal law or regulation. The City may also provide in such ordinances for the testing of Wastewater delivered into the Plant. Such ordinance may provide that the City may terminate service to Customer, if Customer continues to violate said ordinance after being notified by the City in writing and given a reasonable period of time (not to exceed thirty (30) days) to correct such violation. The ordinance shall establish reasonable procedures for terminating such service and shall make reasonable provisions for due process rights of the Customer. The City may also establish, charge and collect a surcharge from Customer for discharge of admissible discharges which, because of the excessive concentration of biochemical oxygen demand, suspended solids or other characteristic, are exceedingly difficult or expensive to treat, which surcharge shall be in addition to the Customer's monthly service charge as described in Section 4.03. Section 3.09. Industrial Wastes. The effects of certain types of industrial Waste upon Wastewater and Wastewater treatment processes are such as to require that careful consideration be made of each industrial connection. Accordingly, Customer agrees to regulate the discharge of Industrial Waste into its respective sanitary sewer collection system and in turn into the Plant, including requirements for pretreatment before discharge into its sanitary sewer collection system if necessary to meet the quality requirements for Waste admissible to the Plant, and the Customer will only authorize the discharge of Industrial Waste into its systems subject to the filing by an applicant industry of a statement, a copy of which shall be forwarded to the City, containing -the following information: 5 (1) Name and address of applicant; (2) Type of industry; (3) Quantity of plant Waste; (4) Typical analysis of the Waste; (5) Type of pre- treatment proposed; and such other information as the City may from time to time request by written notice. Any and all connections to and effluent introduced into the City's Plant shall be subject to and in compliance with the provisions of the City's industrial Waste ordinance as amended or as may be amended. City is authorized at any reasonable time and place to take samples of Sewage and test same to determine its compliance herewith. If such tests show harmful substances in excess of the quantity or concentration permitted by City, City shall impose rate increases, surcharges, and /or charges imposed by the City as authorized by the City's industrial Waste ordinance, as amended. Additionally, Customer shall require institution of adequate corrective measures, as determined by the City, to remedy such conditions and continue to collect and be responsible for payments therefor until such conditions have been remedied. Section 3.10. Interim Wastewater Treatment Service. After the effective date of this Agreement Customer may, at Customer's option, obtain Wastewater treatment and disposal service from City as follows: A. Customer, at Customer's sole expense, may deliver the Wastewater to the City's manhole or lift station for the Meadows of Chandler Creek subdivision, which lift station or manhole is depicted on Exhibit "B" of this Agreement. Customer may deliver the Wastewater by either a truck and haul operation or by installation of a temporary transmission main or a combination of both. Customer shall report the volume of Wastewater discharged by Customer into the manhole or lift station on a daily basis. On a weekly basis, Customer shall provide City information regarding the volume, as measured by meters or otherwise estimated, of water used within residences or buildings located within Subdivision or otherwise discharged into Customer's Wastewater collection system for the previous week. Based upon such information, the City and Customer will attempt to reach an agreement on the estimated volume of Wastewater discharged by Customer into the manhole on a monthly basis, provided, however, in the event of a dispute, the volume of Wastewater shall be determined by City using reasonable and prudent engineering practices and guidelines. The monthly charge for treating and disposing the Wastewater delivered by Customer to the Chandler Creek manhole and lift station shall be determined by multiplying the volume by the bulk rate presently charged by the City, or as such rate may be adopted or amended from time to time. B. Additionally, Customer may, at its sole option and cost, install a temporary Wastewater treatment plant on the tract of land owned by the City where the City is constructing its Wastewater treatment plant. Such installation and operation shall be subject to the supervision of the City engineer and shall not unreasonably interfere with the construction of the City's Wastewater treatment plant. City shall use its best efforts to expeditiously obtain all necessary governmental approvals authorizing the installation and maintenance of the temporary plant at the above - described location, provided, however, Customer shall pay or reimburse City for such costs or expenses, and provided further, Customer may, at any time, request the City to discontinue seeking such governmental approvals. Customer shall pay the City the actual cost of operating the temporary Wastewater treatment plant, which costs shall be submitted by the City to the Customer for payment and shall be paid by Customer in the same manner as provided for the monthly service charge. City hereby grants its consent to Customer to enter City property for the purpose of installing such plant. In the event that Customer installs such temporary plant, 6 the City shall waive payment of the caital recovery fee during the period of time that the Customer's Wastewater is treated by using such temporary treatment facility. IV. CHARGES Section 4.01. Capital Recovery Fees. As a condition precedent to the City's obligation to provide and the Customer's right to receive from City, Wastewater treatment and disposal services for the Subdivision on a permanent basis as provided by this Agreement, Customer shall tender to the City a one -time only payment of an amount of money equal to the capital recovery fees or charges imposed by the City. The capital recovery fees imposed by the City shall be as set forth in the City's Capital Recovery Fee Ordinance, Ordinance No. 2181, as such ordinance may be amended from time to time, provided, however, City shall not increase the capital recovery fee proportionately higher than comparable fees charged inside the corporate limits of City and in the event that the fee should be decreased, then said fee for Customer shall be proportionately decreased at the same time, and provided further, the amount of the capital recovery fee shall not exceed $1,350 per single family detached residence. The initial payment shall be made by Customer within thirty (30) days after the completion of construction of both the Transmission Main and plant and shall be in an amount equal to the City's capital recovery fee for the buildings and residences connected to Customer's Wastewater collection system as of the date of the initial payment. Thereafter, Customer shall pay City the capital recovery fees due City in blocks or lots of 50 residences or connections and such payment shall be made to City prior to connecting any homes or buildings to Customer's wastewater system in excess of the number of connections for which the capital recovery fees have been paid by Customer. Upon request by City Customer shall inform City in writing of the number of connections made to the Customer's Wastewater collection system, with any other additional information that the City requests, provided such information is material and relevant to the city's determination of the amount of capital recovery fees due City. Customer shall pay City such amount, regardless of whether Customer collects the amount due from the persons that connect to the Customer's Wastewater collection system. Section 4.02. Rate. The rate charged by City for providing Wastewater treatment and disposal services to Customer as provided by this Agreement shall be the standard base wholesale rate as established by City from time to time for its other wholesale Wastewater customers, provided such rates are derived in accordance with accepted rate - making and accounting principles, and further provided that such rate shall not exceed the inside City limits rate multiplied by a factor of two. Section 4.03. Monthly Charge. In addition to the charge for the capital recovery fee due City as provided by this Agreement, on a monthly basis, City shall bill the Customer and Customer shall pay City, for the City providing Wastewater treatment and disposal services to Customer as provided by this Agreement. The amount of the monthly charge for providing Wastewater treatment and disposal services shall be determined by multiplying the metered volume of Wastewater delivered by Customer to City at the point of delivery (or at the Chandler Creek manhole) by the base wholesale rate in effect during the same time period. Section 4.04. Billing and Payment. Customer shall pay City the monthly service charge and all other charges payable by Customer to City within 10 days of receipt of a statement from City, delivered by regular mail, of the amount of charges due and payable. Should Customer fail to pay City's charges within 10 days from the date when such are due, the City may add a late charge to the amount due 7 and payable and the total amount due, including late charge shall accrue interest at the rate of ten percent. City shall not discontinue Wastewater service to Customer, but City may collect such charges from Customer and Customer shall pay the City's expenses for collection of such charges, including court costs and attorneys' fees. Section 4.05. Payments. Any payments to be made to City under the terms of this Agreement are to be tendered to City of Round Rock. Checks shall be made payable to City of Round Rock. Section 4.06. Customer's Charges. The setting of all sewer service fees to be charged to the individual users of the Customer's Wastewater collection system shall be the sole responsibility of the Customer. Payment of the capital recovery fees or monthly Customer service charge owed City is in no way contingent upon the collection of individual sewer service fees by the Customer. Customer hereby pledges to City the net revenues from the Wastewater collection system located within the Subdivision to pay the monthly Wastewater charges, referred to in Section 4.03 herein, and in the event of default, the City may exercise its rights to such net revenues by any available procedure. Section 4.07. Payment Under Protest. If Customer at any time disputes the amount to be paid by Customer to the City, Customer shall nevertheless promptly make such payment or payments to City, but if it is subsequently determined by agreement or court decision that such disputed payments made by Customer should have been less, the City shall promptly revise and reallocate the charges in such manner that Customer will recover its overpayment. V. GENERAL PROVISIONS Section 5.01. Force Majeure. In case by reason of "Force Majeure" either party hereto shall be rendered unable wholly or in part to carry out its obligations under this Agreement then if such party shall give notice and full particulars of such "Force Majeure" in writing to the other party within a reasonable time after occurrence of the event or cause relied on, the obligation of the party giving such notice, so far as it is affected by such Force Majeure, shall be suspended during the continuance of the inability then claimed, but for no longer period, and any such party shall endeavor to remove or overcome such inability with all reasonable dispatch. 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 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, explosions, breakage or accidents to machinery, pipelines or canals, partial or entire failure of water supply and inability on the part of the City to provide water necessary for operation of its Wastewater system hereunder or of the City to receive Wastewater on account of any other causes not reasonably within the control of the party claiming such inability. 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 above requirement that any force Majeure shall be remedied with all reasonable dispatch shall not 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 the party having the difficulty. Section 5.02. Regulatory Bodies. This Agreement shall be subject to all valid rules, regulations, laws, permits, orders, and ordinances applicable hereto passed or promulgated by the United States of America, the State of Texas, or any governmental 8 body or agency having lawful jurisdiction over the parties to this Agreement or over the transaction comtemplated by this Agreement, or any authorized representative or agency of any of them. Section 5.03. Governmental Regulations. In each instance herein where reference is made to a federal, State, County, or municipal regulation, it is the intention of the parties that at any given time the then current edition of any such federal, State, County, or municipal regulation shall apply. Section 5.04. No Additional Waiver Implied. No waiver or waivers of any breach or default (or any breaches or defaults) by either party hereto of any term, covenant, condition, or liability hereunder, or of performance by the other party of any duty or obligation hereunder, shall be deemed or construed to be a waiver of subsequent breaches or defaults of any kind, under any circumstances. Section 5.05. Addresses and Notice. Unless otherwise provided in this Agreement, any notice, communication, request, reply, or advice (herein severally and collectively, for convenience, called "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 City, to: City of Round Rock 214 East Main Street Round Rock, Texas 78664 Attention: Mayor If to Customer to: Round Rock Water Supply Corporation 500 West 16th Street Austin, Texas 78701 Attn: John T. Jones, Jr. 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. Section 5.06. Interpretations. Unless the context requires otherwise, words of the masculine gender shall be construed to include correlative words of feminine and neuter genders and vice -versa and words of the singular number shall be construed to include correlative words of the plural number and vice- versa. This Agreement and all the terms and provisions hereof shall be liberally construed to effectuate the purposes set forth herein and to sustain the validity of this Agreement. Nothing in this Agreement shall be construed to permit a violation of any State or Federal statutory provision or any provisions of the State or Federal constitutions, and all acts done pursuant to this Agreement shall be performed in such manner as to conform thereto whether 9 expressly provided or not. Where any procedure hereunder may be held by a court of competent jurisdiction to be violative of any State or Federal statutory or constitutional provision, the parties shall have the power to adopt and promulgate reasonable and necessary alternative procedures which will conform thereto and the parties agree that they would hae entered into this Agreement notwithstanding the invalidity of any provision or provisions hereof. Section 5.07. Modification. This Agreement shall be subject to change or modification only with the mutual written consent of the parties. Section 5.08. Assignability. This Agreement shall not be assignable by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, provided Customer may, without further consent of the City, assign this Agreement to either an investor -owned utility company or a non - profit water supply corporation and provided such assignee assumes the Customer's obligations under this Agreement, customer shall be released from further obligations under this Agreement, except for the obligation described in Article I of this Agreement. Section 5.09. 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 of this Agreement and the application of such provision or part of this Agreement to other persons or circumstances shall not be affected thereby. Section 5.10. Merger. This Agreement constitutes the entire agreement between the parties relative to the subject matter thereof. There have been and are no agreements, covenants, representations or warranties between the parties other than those expressly stated herein or expressly provided for herein. Section 5.11. Approval of Consent. Whenever this Agreement requires or permits approval or consent to be hereafter given by any party, the parties agree that, unless the context clearly shows otherwise, such approval or consent shall not be unreasonably withheld. Such approval or consent may be evidenced by an order or resolution adopted by City or by an appropriate certificate executed by a person, firm or entity authorized to determine and give approval or consent on behalf of Customer pursuant to an order or resolution adopted by the governing body or board of directors thereof. Such approval or consent shall be effective without regard to whether given before or after the time required herein and no approval or consent of the parties shall be required as a condition to any action except as expressly required in this Agreement. Section 5.12. Parties in Interest. This Agreement shall be for the sole and exclusive benefit of the parties hereto and shall not be construed to confer any rights upon any third party. Nothing herein shall be construed to confer standing to sue upon any third party who did not otherwise have such standing. Section 5.13. Captions. The captions appearing at the first of each numbered section or paragraph in this Agreement are inserted and included solely for convenience and shall never be considered or given any effect in construing this Agreement, or any provisions hereof, or in connection with the duties, obligations, or liabilities of the respective parties hereto or in ascertaining intent, if any question of intent should arise. Section 5.14. Notice of Default. If any party believes that any other party has violated this Agreement, then such complaining party shall give to the alleged defaulting party written notice 10 • within 10 days after discovery of the alleged violation. The notice shall set out the nature of the alleged violation and the action proposed by the complaining party to remedy the alleged violation. If the alleged defaulting party has not cured or otherwise resolved such alleged violation within 30 days after receipt of the violation notice, then the complaining party shall have recourse to the remedies available herein or which are available by applicable law. Except as otherwise provided by this Agreement, failure by either party to immediately discover and give notice of an alleged violation to the other party shall not constitute a waiver by either party of the alleged violation should such alleged violation be proven from its inception. Section 5.15. Venue. All amounts due under this Agreement, including, but not limited to, payments due under this Agreement or damages for the breach of this Agreement, shall be paid and be due in Williamson County, Texas, which is the county in which the principal administrative offices of the parties are located. It is specifically agreed among the parties to this Agreement that Williamson County, Texas, is the place of performance of this Agreement, and in the event that any judicial proceeding is brought to enforce this Agreement or any provision hereof, the same shall be brought in Williamson County, Texas. - Section 5.16. No Recourse. No recourse shall be had against any elected official, director, officer, attorney, agent, or employee of either the City or Customer, whether in office as of, or subsequent to, the effective date of this Agreement, for any claim based upon this Agreement. Section 5.17. Time of Essence. Time is of the essence of this Agreement. Section 5.18. Remedies Upon Default. This Agreement shall not be considered as specifying an exclusive remedy for any default, but all such other remedies (other than termination) existing at law or in equity may be availed of by any party hereto and shall be cumulative. Recognizing however, that the City's undertaking to provide Wastewater treatment and disposal services to Customer is an obligation, failure in the performance of which cannot be adquately compensated in money damages alone, the City agrees, in the event of any default on its part, that Customer shall have available to it the equitable remedies of mandamus or specific performance, or both, in addition to any other legal or equitable remedies (other than termination) which may also be available. Recognizing that failure in the performance of any of Customer's obligations hereunder could not be adequately compensated in money damages alone, Customer agrees in the event of any default on its part that the City shall have available to it the equitable remedy of mandamus or specific performance, or both, in addition to any other legal or equitable remedies (other than termination) which may also be available to the City. Any right or remedy or any default hereunder, shall be deemed to be conclusively waived unless asserted by a proper proceeding at law or in equity within two (2) years plus one (1) day after the occurrence of such default. ARTICLE VI. EFFECTIVE DATE AND TERM OF AGREEMENT Section 6.01. Effective Date. This Agreement shall become effective upon execution by the parties. Section 6.02. Term of Agreement. This Agreement shall continue in force and effect from the effective date hereof for a period of thirty (30) years. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed in several counterparts, each of 11 which shall constitute an original, all as of the December, 1985. ATTEST: h l ilil / A JLl City Secretary (SEAL) ATTEST: Secretary,(/ Round Rock ater Supply Corporation PWL:smh 12/12/85 CITY OF ROUND ROCK, TEXAS By: 12 Mayor �n Jont f r- ROUND ROCK WATER SUPPLY CORPORATION , Jr., Directo s day of sident, EXHIBIT CHANDLER CREEK LIFT STATION NTRE wax * 19) - r yrV •r rM �� .W .SCS I , Cti N . 4 l' uRUSMY 5 NORTH � Y TONK WA SPRI S r � o..= Y al THE SETTLEME T INN \ SUNRISE THE MEADOWS at -Y \ \ISTA M ` n � Chandler Creek' Subdivision �' 4 Z CREEK J :.. A 'e i ten GREET HIL!� .. s; .v... STATION THE WOODS �l� -� ; (E - 6 i1 CMAIDGE W. RUSHY I 2 ' GREEK Q� © 3 "" qqgqqq..c 7 THE I OAKLANOS al I SL Y,� cMi . � o. �' N rW C r• J: ot wu {{ p ...P. ,.'5 4 � S � . � � SS - ..rn * ,4 [Y� L. ) ROUND SRUSITY x - Ai • GC ." _ —m r.0 1 — £ E. ' I— 1 ' CHEEK ip VILLAGE 3 '"W:4111" '' r u. ��� �_ .. �I r� � §!� � � � � y w�v � r 3 /, , S r. - ' 9�� `- MP !'ti .� 01`�R��� , 1o• CRE "1 oqr w.. rw. 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' - ..., / if ,-,0,-----, . • REW WASTEWATATi TREATMENT PLANT - i ' ' / ke Of ireyr i Ai- F 441 *di_ ar_:__ _ _ , i - . - ,c - 4 ■" 11 11.% PROPOSED FORCE • Gravel n -----71 ' pr (1 ( 7A illik,.k ' a i - •v.,.....-- • /13./1 n - 1 1 /' t t 1 'IN ■ \ I N .. .. 0 u f , ' / -- )1 ) I 1/ i i f 1 ! r I _ • . 1 ri,222 , -..,...( I , ' -- --s - -,- A - ■.- ) \ / 1 t ROUND ROCK, TEX. - .8W/4 ROUND ROCK IV OUADRANOLE _ N3030-W9737.5/7.5 ••• DMA 6445 II SW-SERIES V882 HUTTO, TEX. SEM ROUND ROCK IV OUADRANOLE N3030-W9730/7.5 • 1 982 DMA 8445 II SE—SERIES V882