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R-89-1220 - 1/20/1989WHEREAS, on the llth day of April, 1988, the Brushy Creek Water Control and Improvement District No. 1 of Williamson and Milan Counties, the City of Austin and the City of Round Rock entered into a Wastewater Disposal Contract; and WHEREAS, the above parties wish to make certain amendments to said contract, 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 amendment to the above - described Wastewater Disposal Contract, a copy of said amendment being attached hereto and incorporated herein for all purposes. RESOLVED this 0 day of , 198i. ATTEST: ANNE LAND, City Secretary C34RESWCID3 RESOLUTION NO. 4 /1-1 MIKE ROBINSON, Mayor City of Round Rock, Texas AMENDMENT No. 1 to the WASTEWATER DISPOSAL AGREEMENT RECITALS This Amendment No. 1 to the Wastewater Disposal Agreement is entered into between Brushy Creek Water Control and Improvement District No. 1 of Williamson and Milani Counties (the "District "), the City of Austin ( "Austin "), and the City_ of Round Rock ( "Round Rock "), all of such parties other than the District collectively referred to as the "Customers ". WHEREAS, the District and the Customers entered into a Wastewater Disposal Agreement dated April 11, 1988, hereinafter called the "Agreement "; and WHEREAS, the District authorized the preparation of a "Facilities Plan" dated September, 1988 prepared by Camp Dresser and McKee, Inc. to reevaluate the design parameters utilized in the Engineering Report as defined in the Agreement and based upon said reevaluation to recommend value engineering based modifications to the Brushy Creek Regional Wastewater System; and WHEREAS, the District and the Customers desire to adopt the Facilities Plan as an amendment to said Engineering Report and to amend said Agreement as required to implement the recommendations contained in the Facilities Plan. NOW, THEREFORE, the District and the Customers do hereby agree that the Agreement be amended as follows: 1. That definition (r) in Section 1.01 DEFINITION OF TERMS is amended to read as follows: "Engineering Report" means a report of Haynie & Kallman, Inc., and Espey, Huston & Associates, Inc., Consulting Engineers, entitled "A Feasibility Study of a Potential Regional Wastewater Treatment Facility for the Upper Brushy Creek Watershed of Southwest Williamson County, Texas," dated July, 1984, as amended by a report of Camp Dresser and McKee, Inc., entitled "Facilities Plan," dated September, 1988, as such report may be amended, modified and changed and superseded, at any time prior to the execution of. construction contracts for improvements, additions and enlargements to Phase I of the System or as modified and changed by change orders issued after execution of such construction contracts; provided, however, that no such change orders shall affect the Reserved Capacity, rate of discharge or Point of Entry for any Customer without such Customer's consent. 2. That definition (hh) in Section 1.01 DEFINITION OF TERMS is amended to read as follows: "Project Costs" includes all acquisition and construction costs and reconstruction costs as those terms are generally understood in standard accounting practice as applied to projects of the nature of the System, and without limiting the generality of the foregoing, the term shall include the costs of obtaining all licenses and permits; purchase of equipment, property, rights in property, costs of land, easements and rights -of -way, including damages to land and property; engineering, administrative, 1 auditing, legal expenses and liability insurance for the District and District directors and employees incurred in connection with the planning, development, acquisition and construction of the System; any and all tools. and equipment required for the operation and maintenance of the System; costs of the same nature for any expansion, extension, enlargement, improvement or replacement of the System; the costs of establishing the Operation and Maintenance Reserve Fund and the Repair and Replacement Reserve Fund; legal and other expenses incurred by the District in accomplishing the acquisition or construction of the System, including any and all expenses incurred by the District in connection with any litigation of any nature whatsoever concerning the System or the District's responsibilities hereunder to any person, entity or party hereto; and a reasonable amount for contingencies. The Project Costs shall be composed of two components: (1) "Line Project Costs" which shall be all Project Costs related to constructing interceptor lines, collection lines, easement acquisition and special legal cost and related facilities to collect and transport Wastewater to the System's proposed wastewater treatment plant; (2) 'Treatment Project Costs which shall be all project costs relating to constructing the System's wastewater treatment plant (such Treatment Project Costs consisting of [a] "Treatment Project Common Facilities Costs" being those Treatment Project Costs for Common Facilities and [b] "Treatment Project Phase Costs" being those Treatment Project Costs for a particular phase of the Project which are not related to the cost of Common Facilities). "Project Management Costs" which shall be all Project Costs related to administration of construction of the System and 1988 and 1989 Management Fees and shall be treated as Treatment Project Common Facilities Costs, except for those costs which can be specifically assigned as a Line Project Cost or a Treatment Project Phase Cost. 3. That Section 3.01 CONSTRUCTION is amended to read as follows: (1) In order to provide services for receiving, transporting, treating and disposing of Wastewater for the Customers and Additional Customers, the District will design and acquire or construct the System as described in the Engineering Report, will acquire all necessary lands, easements and rights -of -way, and will own, operate, maintain and from time to time expand, extend, enlarge, improve and repair the System. The District shall exercise due diligence and use its best efforts to complete construction of Phase lA of the System in stages as provided herein. Phase IB shall be constructed and completed as necessary and as otherwise provided herein. 4. Section 6.01 (a)(1) COST OF PHASE IA OF SYSTEM is added as follows: (1) Upon execution of this Amendment No. 1 by all parties, the District shall be authorized to proceed with establishing Funding Dates for the following: a. Reimbursements to Round Rock and Bill Milburn Company in accordance with the Agreement provisions; b. Engineering line design; c. Engineering studies and updates; d. Easement acquisition and Project Management Costs; and shall also be authorized to proceed with design and solicitation for bids for Contract 5,'Phase II" and Contract 6 in accordance with Section 6.01(b)2 herein. The District shall not be authorized to proceed with funding of construction or the establishment of funding dates for future stages and /or phases unless the Customers approve funding for such stage or phase. 5. That Section 6.01 (a) COST OF PHASE IA OF SYSTEM is amended to read as follows: (2) Upon execution of this Amendment No. 1 by all parties, the District intends to construct Phase 1 of the System in two phases to be known as Phase lA and Phase 1B, as described in the Engineering Report. The parties recognize that the stages of Phase lA and Phase 1B of the System will be 2 designed and advertised for bid by the District at separate times as described later in this section. The parties further recognize that although each Customer will not become fully liable for its pro rata share of the construction costs of the various stages and phases until such time as construction bids are obtained by the District; nevertheless, the District has incurred or will incur Project Costs for contractual reimbursements hereinunder, design of the System, preparation of plans and specifications for construction of the System, and certain engineering, legal, administrative and other expenses included in the Project Costs of the System prior to the time that construction bids are accepted. The District has no source of funds to pay the Project Costs of Phase lA of the System other than those provided by the Customers which such funds have previously been deposited to the District by the Customers as shown in Exhibit "B" or which shall be paid to the District as described below. Therefore, the parties agree that all Customers shall pay to the District' their pro rata share of any supplemental Fundings for Project Costs for such reimbursements and other Project Costs incurred prior to acceptance of construction bids of the four stages of Phase lA of the System within forty -five (45) days of such call for supplemental Funding by the District. Project Costs for any funding required to be paid by all Customers shall be calculated as follows: (a) each Customer's share of Line Project Costs shall be determined by dividing the estimated Line Project Costs of Phase lA of the System to be incurred prior to the other Funding Dates by the number of LUEs of Total Reserved Line Capacity in Phase lA of the System and multiplying the result times the Customer's number of LUEs of Reserved Line Capacity in Phase lA of the System. (b) each Customer's share of Treatment Project Phase Costs of Phase lA of the System shall be determined by dividing the estimated Treatment Project Phase Costs of Phase lA of the System to be incurred prior to the other Funding Dates by the number of LUEs of Total Reserved Treatment Capacity in Phase lA of the System and multiplying the result times the Customer's number of LUEs of Reserved Treatment Capacity in Phase lA of the System, and (c) each Customer's share of Treatment Project Common Facilities Costs shall be determined by dividing the Treatment Project Common Facilities Costs of Phase lA of the System by the total number of LUEs of Total Reserved Common Capacity of all Customers in Phase lA of the System and multiplying the result times the Customer's number of LUEs of Reserved Common Capacity in Phase lA of the System. 6. That Section 6.01 (b) COST OF PHASE IA OF SYSTEM is amended to read as f2 i12 (1) As provided hereinafter, the District shall proceed to take all action necessary to acquire or construct each stage of Phase lA of the System, including obtaining appropriate easements, making appropriate surveys, obtaining appropriate permits and governmental approvals and taking all other necessary and proper actions. All plans and specifications shall be submitted to the Customers for their comments which must be received within thirty (30) days after receipt of same. The District shall make any adjustments to the plans and specifications which it deems appropriate thereafter. The District anticipates that after final plans and specifications have been prepared, a period of thirty (30) days will be necessary in order to obtain approval by all appropriate regulatory bodies of the plans and specifications. After all such approvals have been obtained, the District shall proceed to advertise for bids for construction of Phase 1A of the System in four stages. The four stages of Phase lA of the System are described in the Engineering Report and shall be as follows: ' Stage Facilities Trigger Stage 1 Contract 5 - Phase II None Contract 6 Stage 2 5 MGD Wastewater Regional flows exceed Treatment Plant interim capacity avail- able from City of Round Rock 3 Stage 3 Stage 4 Contracts 2, 3, 8b and 40/44 Force Main Contracts 20, 20a & 21 The Customers shall be authorized to determine that the trigger for each stage has been met, that demand exists for additional facilities and that funding of the construction should occur. (2) Prior to advertising for bids for the first stage of Phase 1A, the District shall notify the Customers and the Technical Committee of the estimated cost of construction of such first stage of Phase lA based on the Engineers' recommendation of such construction costs. Upon receipt of the bids for the first stage of Phase 1A, the District shall tabulate the bids and notify the Customers and the Technical Committee of the bids which have been received. The District shall notify the Customers and the Technical Committee, based on the Engineers' recommendation of the lowest and best bid, or bids, of the as -bid Project Costs of the first stage of Phase lA of the System. If the as -bid Project Costs of the first stage of Phase 1A do not exceed the estimated cost of construction of such first stage of Phase lA of the System for which bids were received by more than ten (10) percent, and the prorata cost share of the City of Austin for such construction and the items authorized pursuant to Section 6.01 (a)(1) does not exceed $3.8 million in Fiscal Year 88 -89 and $6.4 million for items authorized in this Section and Section 6.01(a)(1), without prior Austin City Council approval, then the District shall establish a Funding Date for the first stage of Phas time that such construction bids for those contracts contained in the first stage of Phase IA of the System expire, but shall not be less than forty -five (45) days after the date the District notifies the Customers and the Technical Committee of the recommended low bid. If the as -bid Project Costs of the first stage of Phase lA exceeds the estimated cost of construction of such first stage of Phase lA of the System by more than ten (10) percent, then within thirty (30) days after receiving such notice from the District, each Customer shall notify the District as to whether or not it desires the District to proceed with the construction of the first stage of Phase lA of the System. The District shall then establish a Funding Date for the first stage of Phase lA of the System, which Funding Date shall be prior to the time that such construction bids for those contracts contained in the first stage of Phase lA of the System expire, but shall not be less than forty -five (45) days after the date the District notifies the Customers and the Technical Committee of the recommended low bid. If any Customer does not so authorize the District to proceed to acquire or construct the first stage of Phase 1A, prior to the expiration of thirty (30) days after the date the District notifies the Customer and the Technical Committee of the recommended low bid, then the District shall not be obligated to so proceed and the parties shall have no further obligations one to the other under this Agreement and the District shall return any excess moneys in the Construction Fund which are not needed to pay Project Costs to each Customer as appropriate: provided, however, the District and the remaining Customers agree to use their best efforts to continue to construct the System without the declining Customer. If all Customers shall notify the District that they desire the District to proceed with the construction of the first stage of Phase 1A of the System, the District shall thereafter establish a Funding Date for the first stage of Phase lA of the System, which Funding Date shall be prior to the time that such construction bids for those contracts contained in the first stage of Phase lA of the System expire, but shall not be less than forty -five (45) days after the receipt of notice from all Customers to proceed with the construction of the first stage of Phase 1A of the System. (3) Upon request by the District, the Customers shall determine that the trigger for construction of the second stage has been met, and /or that demand exists for additional facilities and that funding of the construction should occur. Prior to the District's advertising for bids for the second stage of the Phase 1A, the District shall receive the Customers' authorization to construct and fund such second stage of Phase 1A. Additionally, prior to advertising for bids for the second stage of Phase 1A, the District shall notify the Customers and the Technical Committee of 4 Flow to Lake Creek Lift Station maximum capacity =3,000 gpm Flows to Onion Branch Lift Station maximum capacity= 5,000 LUEs the estimated cost of construction of such second stage of Phase lA based on the Engineers' recommendation of such construction costs. Upon receipt of the bids for the second stage of Phase lA of the System, the District shall tabulate the bids and notify the Customers and the Technical Committee of the bids which have been received. The District shall notify the Customers and the Technical Committee, based on the Engineers' recommendation of the lowest and best bid, or bids, of the as -bid Project Costs of the second stage of Phase 1A. If the as -bid Project Costs of the second stage of Phase 1A do not exceed the estimated cost of construction of such second stage of Phase lA of the System for which bids were received by more than ten (10) percent, then the District shall establish a Funding Date for the second stage of Phase lA of the System, which Funding Date shall be prior to the' time that such construction bids for those contracts contained in the second stage of Phase lA of the System expire, but shall not be less than forty -five (45) days after the date the District notifies the Customers and the Technical Committee of the recommended low bid. If the as -bid Project Costs of the second stage of Phase lA exceeds the estimated cost of construction of such second stage of Phase lA of the System by more than ten (10) percent, then within thirty (30) days after receiving such notice from the District, each Customer shall notify the District as to whether or not it desires the District to proceed with the construction of the second stage of Phase lA of the System. If any Customer does not so authorize the District to proceed to acquire or construct the second stage of Phase 1A, prior to the expiration of thirty (30) days after the date the District notifies the Customer and the Technical Committee of the recommended low bid, then the District shall not be obligated to so proceed and the parties shall have no further obligations one to the other under this Agreement with regard to construction of any future stages or phases of the Project and the District shall return any excess moneys in the Construction Fund which are not needed to pay Project Costs to each Customer as appropriate: provided, however, the District and the remaining Customers agree to use their best efforts to continue to construct the System without the declining Customer. If all Customers shall notify the District that they desire the District to proceed with the construction of the second stage of Phase lA of the System, the District shall thereafter establish a Funding Date for the second stage of Phase lA of the System, which Funding Date shall be prior to the time that such construction bids for those contracts contained in the second stage of Phase lA of the System expire, but shall not be less than forty -five (45) days after the receipt of notice from all Customers to proceed with the construction of the second stage of Phase lA of the System. (4) Upon request by the District, the Customers shall determine that the trigger for construction of the third stage has been met, that demand exists for additional facilities and that funding of the construction should occur. Prior to the District's advertising for bids for the third stage of the Phase 1A, the District shall receive the Customers' authorization to construct and fund such third stage of Phase 1A. Additionally, prior to advertising for bids for the third stage of Phase 1A, the District shall notify the Customers and the Technical Committee of the estimated cost of construction of such third stage of Phase lA based on the Engineers' recommendation of such construction costs. Upon receipt of the bids for the third stage of Phase lA of the System, the District shall tabulate the bids and notify the Customers and the Technical Committee of the bids which have been received. The District shall notify the Customers and the Technical Committee, based on the Engineers' recommendation of the lowest and best bid, or bids, of the as -bid Project Costs of the third stage of Phase 1A. If the as -bid Project Costs of the third stage of Phase lA do not exceed the estimated cost of construction of such third stage of Phase 1A of the System for which bids were received by more than ten (10) percent, then the District shall establish a Funding Date for the third stage of Phase lA of the System, which Funding Date shall be prior to the time that such construction bids for those contracts contained in the third stage of Phase 1A of the System expire, but shall not be less than forty -five (45) days after the date the District notifies the Customers and the Technical Committee of the recommended low bid. If the as -bid Project Costs of the third stage of Phase lA exceeds the estimated cost of construction of such 5 third stage of Phase lA of the System by more than ten (10) percent, then within thirty (30) days after receiving such notice from the District, each Customer shall notify the District as to whether or not it desires the District to proceed with the construction of the third stage of Phase lA of the System. If any Customer does not so authorize the District to proceed to acquire or construct the third stage of Phase 1A, prior to the expiration of thirty (30) days after the date the District notifies the Customer and the Technical Committee of the recommended low bid, then the District shall not be obligated to so proceed and the parties shall have no further obligations one to the other under this Agreement with regard to construction of any future stages or phases of the Project, and the District shall return any excess moneys in the Construction Fund which are not needed to pay Project Costs to each Customer as appropriate: provided, however, the District and the remaining Customers agree to use their best efforts to continue to construct the System without the declining Customer. If all Customers shall notify the District that they desire the District to proceed with the construction of the third stage of Phase lA of the System, the District shall thereafter establish a Funding Date for the third stage of Phase lA of the System, which Funding Date shall be prior to the time that such construction bids for those contracts contained in the third stage of Phase lA of the System expire, but shall not be less than forty -five (45) days after the receipt of notice from all Customers to proceed with the construction of the third stage of Phase lA of the System. (5) Upon request by the District, the Customers shall determine that the trigger for construction of the fourth stage has been met, that demand exists for additional facilities and that funding of the construction should occur. Prior to the District's advertising for bids for the fourth stage of the Phase 1A, the District shall receive the Customers' authorization to construct and fund such fourth stage of Phase 1A. Additionally, prior to advertising for bide for the fourth stage of Phase 1A, the District shall notify the Customers and the Technical Committee of the estimated cost of construction of such fourth stage of Phase lA based on the Engineers' recommendation of such construction costs. Upon receipt of the bids for the fourth stage of Phase lA of the System, the District shall tabulate the bids and notify the Customers and the Technical Committee of the bids which have been received. The District shall notify the Customers and the Technical Committee, based on the Engineers' recommendation of the lowest and best bid, or bids, of the as -bid Project Costs of the fourth stage of Phase 1A. If the as -bid Project Costs of the fourth stage of Phase lA do not exceed the estimated cost of construction of such fourth stage of Phase lA of the System for which bids were received by more than ten (10) percent, then the District shall establish a Funding Date for the fourth stage of Phase lA of the System, which Funding Date shall be prior to the time that such construction bids for those contracts contained in the fourth stage of Phase lA of the System expire, but shall not be less than forty -five (45) days after the date the District notifies the Customers and the Technical Committee of the recommended low bid. If the as -bid Project Costs of the fourth stage of Phase lA exceeds the estimated cost of construction of such fourth stage of Phase lA of the System by more than ten (10) percent, then within thirty (30) days after receiving such notice from the District, each Customer shall notify the District as to whether or not it desires the District to proceed with the construction of the fourth stage of Phase lA of the System. If any Customer does not so authorize the District to proceed to acquire or construct the fourth stage of Phase 1A, prior to the expiration of thirty (30) days after the date the District notifies the Customer and the Technical Committee of the recommended low bid, then the District shall not be obligated to so proceed and the parties shall have no further obligations one to the other under this Agreement with regard to construction of any future stages or phases of the Project, and the District shall return any excess moneys in the Construction Fund which are not needed to pay Project Costs to each Customer as appropriate: provided, however, the. District and the remaining Customers agree to use their best efforts to continue to construct the System without the declining Customer. If all Customers shall notify the District that they desire the District to proceed with the construction of the fourth stage of Phase lA of 6 the System, the District shall thereafter establish a Funding Date for the fourth stage of Phase lA of the System, which Funding Date shall be prior to the time that such construction bids for those contracts contained in the fourth stage of Phase lA of the System expire, but shall not be less than forty -five (45) days after the receipt of notice from all Customers to proceed with the construction of the fourth stage of Phase lA of the System. 7. That Section 6.01 (e) COST OF PHASE IA OF SYSTEM is amended to read as follows: Funding as provided in this section is subject to the following provisions: (1) It is estimated that reimbursement to be due Austin pursuant to section 10.04 (b) is $7,150,000, and it is agreed that $7,150,000 of the amount to be paid by Austin on the Funding Date of the third stage of Phase lA shall be deferred until reimbursement is due Austin pursuant to Section 10.04 (a) and (b), at which time the amount of deferred payment above shall be credited to the actual amount of reimbursement as agreed by the District and Austin to be due Austin. Provided that if at such time such actual amount of reimbursement to be due Austin is greater than the deferred sum, Austin will be credited with the deferred sum in partial reimbursement, and,, upon completion of the third stage of Phase 1A, the District will, if needed, call for a funding pursuant to Section 6.01 (c), by the Customer of their pro rata share of the balance of such reimbursement due Austin, and, upon receipt of such funds, shall pay Austin the balance of the reimbursement due. If such actual amount of reimbursement due Austin is less than the deferred amount, only that portion of the deferred payment as is equal to the actual amount of such reimbursement to be due Austin shall be credited to Austin, and, upon completion of the third stage of Phase 1A, the remaining balance of Austin's deferred payment shall be paid by Austin into the Construction Fund and credited pursuant to the provisions of Section 6.01 (c). If Austin does not complete and convey the Lake Creek Interceptor as provided for in Section 10.04 (a) within two years from the Funding Date of the third stage of Phase 1A, upon the expiration of such two year period, any deferred funding remaining unpaid shall immediately become due and payable by Austin to the District. (2) It is estimated that payment to be due Round Rock pursuant to Section 10.05 (a) is $525,000, and it is agreed that $525,000 of the amount to be paid by Round Rock on the Funding Date of the second stage of Phase lA shall be deferred until reimbursement is due Round Rock pursuant to Section 10.05 (a), at which time the amount of deferred payment above shall be credited to the actual amount of reimbursement as agreed by the District and Round Rock to be due Round Rock. Provided, that if at such time actual amount of payment to be due Round Rock is greater than the deferred sum in partial payment, and, upon completion of the second stage of Phase 1A, the District will, if needed, call for a funding pursuant to Section 6.01 (c), by the Customers of their pro rata share of the balance of such reimbursement due Round Rock, and, upon receipt of such funds, shall pay Round Rock the balance of the reimbursement due. If such actual amount of payment to be due Round Rock is less than the deferred amount, only the portion of the deferred payment as is equal to the actual amount of such reimbursement to be due Round Rock shall be credited to Round Rock, and, upon completion of the second stage of Phase 1A, the remaining balance of Round Rock's deferred payment shall be paid by Round Rock into the Construction Fund and credited pursuant to the provisions of Section 6.01 (c). If Round Rock does not convey the land as provided for in Section 10.05 (a) within 6 months of the Funding Date of the second stage of Phase 1A, upon the expiration of such 6 month period, any deferred funding remaining unpaid shall immediately become due and payable by Round Rock to the District. (3) It is estimated that reimbursement to be due Round Rock pursuant to Section 10.05 (b) for Phase 1A Line Project Costs is $3,322,000, and it is agreed that $3,322,000 of the amount to be paid by Round Rock on the Funding Date for the initial Supplemental Funding of Phase lA shall be deferred until reimbursement is due Round Rock pursuant to Section 10.05 (b), at which time the amount of deferred payment above shall be credited to. the actual amount of reimbursement as agreed by the District and Round Rock 7 to be due Round Rock. Provided that if at such time such actual amount of reimbursement to be due Round Rock is greater than the deferred sum, Round Rock will be credited with the deferred sum in partial reimbursement, and, upon completion of the first stage of Phase 1A, the District will, if needed, call for a funding pursuant to Section 6.01 (c), by the Customers of their pro rata share of the balance of such reimbursement due Round Rock, and, upon receipt of such funds, shall pay Round Rock the balance of the reimbursement due. If such actual amount of reimbursement to be due Round Rock is less than the deferred amount, only that portion of the deferred payment as is equal to the actual amount of such reimbursement to be due Round Rock shall be credited to Round Rock, and, upon completion of the first stage of Phase 1A, the remaining balance of Round Rock's deferred payment shall be paid by Round Rock into the Construction Fund and credited pursuant to the provisions of Section 6.01 (c). If Round Rock does not complete and convey the facilities as provided for in Section 10.05 (b) within 6 months of the Funding Date of the first stage of Phase 1A, upon the expiration of such 6 month period, any deferred funding remaining unpaid shall immediately become due and payable by Round Rock to the District. (4) It is estimated that reimbursement to be due Round Rock pursuant to Section 10.05. (b) for Phase lA Treatment Project Common Facilities Costs is $1,850,000, and it is agreed that $1,850,000 of the amount to be paid by Round Rock on the Funding Date for the second stage of Phase lA shall be. deferred until reimbursement is due Round Rock pursuant to Section 10.05 (b), at which time the amount of deferred payment above shall be credited to the actual amount of reimbursement as agreed by the District and Round Rock to be due Round Rock. Provided that if at such time such actual amount of reimbursement to be due Round Rock is greater than the deferred sum, Round Rock will be credited with the deferred sum in partial reimbursement, and, upon completion of the second stage of Phase 1A, the District will, if needed, call for a funding pursuant to Section 6.01 (c), by the Customers of their pro rata share of the balance of such reimbursement due Round Rock, and, upon receipt of such funds, shall pay Round Rock the balance of the reimbursement due. If such actual amount of reimbursement to be due Round Rock is less than the deferred amount, only that portion of the deferred payment as is equal to the actual amount of such reimbursement to be due Round Rock shall be credited to Round Rock, and, upon completion of the second stage of Phase 1A, the remaining balance of Round Rock's deferred payment shall be paid by Round Rock into the Construction Fund and credited pursuant to the provisions of Section 6.01 (c). If Round Rock does not complete and convey the facilities as provided for in Section 10.05 (b) within 6 months of the Funding Date of the second stage of Phase 1A, upon the expiration of such 6 month period, any deferred funding remaining unpaid shall immediately become due and payable by Round Rock to the District. 8. That Section 6.01 (k) COST OF PHASE IA OF SYSTEM be amended to read as follows: Notwithstanding anything herein to the contrary, it is understood that Funding of Phase lA of the System shall occur in four stages as the District obtains bids for construction or otherwise acquires the System or parts thereof. The District, with the advice of the Technical Committee and the District's engineer, will establish, and from time to time revise, a budget showing the estimated expenditures of and need for funds to construct or otherwise acquire Phase lA of the System in order to provide the Customers with as much notice as reasonable possible as to when Fundings will occur and how much money will be needed from each Customer. It is understood that each Funding will be designed to provide the District with sufficient funds to enter into all Project Contracts, and pay all Project Costs, (including engineering and contingencies) related thereto, to continue prompt construction and acquisition of the System. 9. Section 6.02 CONSTRUCTION OF PHASE 1B OF THE SYSTEM is amended to read as follows: Upon receiving requests from all the Customers to proceed with design acquisition and construction of Phase 1B of the System, the District shall determine within thirty days whether it will proceed with development of Phase 18 and shall so notify the Customers and the Technical Committee. If requested by the Customers after the completion of Phase lA of the System,• the District shall apply in its name for all necessary governmental approvals to acquire or construct Phase 1B of the System or any part 8 thereof. 10. t on 10 ! b PRO I IONS AP' ICABLE • USTI is amended to r -zd as That S -c follows: Upon completion of that portion of the Lake Creek Interceptor as described in Section 10.04 (a) and conveyance thereof to the District, the District agrees to reimburse Austin for the costs thereof plus interest on said costs at a rate of interest as determined by the rate of return of the City of Austin Investment Pool on funds expended by Austin to pay for such costs with interest accruing from and determined by the rate prevailing on the date or dazes of each payment of such costs by Austin to the date of payment therefor by the District. Such reimbursement shall be made in accordance with the provisions of Section 6.01 (e)(1). 11. That Section 10.05 PROVISIONS APPLICABLE TO ROUND ROCK is amended to read as follows: (a) It is expressly understood and agreed that Round Rock has acquired the plant site for the District's Wastewater Treatment Plant at great expense and Round Rock hereby agrees, if allowed by applicable law, to convey to the District ownership of such plant site free and clear of all liens and encumbrances except as otherwise agreed to by the District. The purchase price shall be twenty thousand (20,000) dollars per acre for approximately twenty -five (25) acres as described in Exhibit "E" attached hereto. Such sale shall be consummated upon receipt by the District of the funding for the second stage of Phase lA of the System. (b) The District agrees also to reimburse Round Rock for any and all out of pocket expenses incurred by Round Rock for design, acquisition or construction of certain Phase lA Line Project facilities and certain Phase lA Treatment Project Common facilities including access easement to the plant site as described in Exhibit "F" attached hereto, for Phase lA of the System (except for costs of acquiring any governmental permits), such reimbursement to occur upon conveyance of such easement and facilities. Such reimbursement shall include interest on such costs calculated at a rate of interest equal to the net effective rate on bonds issued by Round Rock to pay such costs with interest accruing from the date or dates of each payment of such costs by Round Rock to the date of payment therefor by the District. Such reimbursement shall be made in accordance with the provisions. of Section 6.01 (e)(2), Section 6.01 (e)(3), and Section 6.01 (e)(4). 12. That Exhibits "C" and "D" be deleted in their entirety. This Amendment No. 1 to the Wastewater Disposal Agreement shall not become effective until duly and properly executed by the District and each of the Customers. The parties hereto agree that the Agreement is now and remains in full force and effect and do hereby ratify, adopt and confirm the same as amended above. IN WITNESS WHEREOF, the parties hereto acting under the authority of their respective governing bodies have caused this Agreement to be duly executed in several counterparts, each of which shall constitute an original, all as of the -Sa day of n v7Ry , 1989. 9 ATTEST: R•scoe Conoley, Secretary ATTEST: SLs ATTEST: lames E. Aldridge, City Clerk 4111 011 di _I 4f■ J•`nne Land, Ci y Secretary 19 BRUSHY CREEK. WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1 OF WILLIAMSON AND MILAM COUNTIES 301 Hesters Crossing, Suite 120 Round Rock, Texas 78681 Dan Mize, President Execute CITY OF AUSTIN P.O. Box 1088 Austin, Texas 78767 -8828 Barney Kn Acting City Manager Executed Executed 4 i,uut ' IN , 1989 CITY OF ROUND ROCK 221 East Main Round Rock, Texas 78664 Mike Robinson, Mayor , 1989 , 1989 ' a• AMENDMENT No. 1 to the WASTEWATER DISPOSAL AGREEMENT RECITALS This Amendment No. 1 to the Wastewater Disposal Agreement is entered into between Brushy Creek Water Control and Improvement District No. 1 of Williamson and Milam Counties (the "District "), the City of Austin ( "Austin "), and the City of Round Rock ( "Round Rock "), all of such parties other than the District collectively referred to as the "Customers ". WHEREAS, the District and the Customers entered into a Wastewater Disposal Agreement dated April 11, 1988, hereinafter called the "Agreement "; and WHEREAS, the District authorized the preparation of a "Facilities Plan" dated September, 1988 prepared by Camp Dresser and McKee, Inc. to reevaluate the design parameters utilized in the Engineering Report as defined in the Agreement and based upon said reevaluation to recommend value engineering based modifications to the Brushy Creek Regional Wastewater System; and WHEREAS, the District and the Customers desire to adopt the Facilities Plan as an amendment to said Engineering Report and to amend said Agreement as required to implement the recommendations contained in the Facilities Plan. NOW, THEREFORE, the District and the Customers do hereby agree that the Agreement be amended as follows: 1. That definition (r) in Section 1.01 DEFINITION OF TERMS is amended to read as follows: "Engineering Report" means a report of Haynie & Kallman, Inc., and Espey, Huston & Associates, Inc., Consulting Engineers, entitled "A Feasibility Study of a Potential Regional Wastewater Treatment Facility for the Upper Brushy Creek Watershed of Southwest Williamson County, Texas," dated July, 1984, as amended by a report of Camp Dresser and McKee, Inc., entitled "Facilities Plan," dated September, 1988, as such report may be amended, modified and changed and superseded, at any time prior to the execution of construction contracts for improvements, additions and enlargements to Phase I of the System or as modified and changed by change orders issued after execution of such construction contracts; provided, however, that no such change orders shall affect the Reserved Capacity, rate of discharge or Point of Entry for any Customer without such Customer's consent. 2. That definition (hh) in Section 1 01 DEFINITION OF TERMS is amended to read as follows: "Project Costs" includes all acquisition and construction costs and reconstruction costs as those terms are generally understood in standard accounting practice as applied to projects of the nature of the System, and without limiting the generality of the foregoing, the term shall include th'e costs of obtaining all licenses and permits; purchase of equipment, property, rights in property, costs of land, easements and rights -of -way, including damages to land and property; engineering, administrative, 1 auditing, legal expenses and liability insurance for the District and District directors and employees incurred in connection with the planning, development, acquisition and construction of the System; any and all tools and equipment required for the operation and maintenance of the System; costs of the same nature for any expansion, extension, enlargement, improvement or replacement of the System; the costs of establishing the Operation and Maintenance Reserve Fund and the Repair and Replacement Reserve Fund; legal and other expenses incurred by the District in accomplishing the acquisition or construction of the System, including any and all expenses incurred by the District in connection with any litigation of any nature whatsoever concerning the System or the District's responsibilities hereunder to any person, entity or party hereto; and a reasonable amount for contingencies. The Project Costs shall be composed of two components: (1) "Line Project Costs" which shall be all Project Costs related to constructing interceptor lines, collection lines, easement acquisition and special legal cost and related facilities to collect and transport Wastewater to the System's proposed Wastewater treatment plant; (2) "Treatment Project Costs which shall be all project costs relating to constructing the System's wastewater treatment plant (such Treatment Project Costs consisting of [a] "Treatment Project Common Facilities Costs" being those Treatment Project Costs for Common Facilities and [b] "Treatment Project Phase Costs" being those Treatment Project Costs for a particular phase of the Project which are not related to the cost of Common Facilities). "Project Management Costs" which shall be all Project Costs related to administration of construction of the System and 1988 and 1989 Management Fees and shall be treated as Treatment Project Common Facilities Costs, except for those costs which can be specifically assigned as a Line Project Cost or a Treatment Project Phase Cost. 3. That Section 3.01 CONSTRUCTION is amended to read as follows: (1) In order to provide services for receiving, transporting, treating and disposing of Wastewater for the Customers and Additional Customers, the District will design and acquire or construct the System as described in the Engineering Report, will acquire all necessary lands, easements and - rights -of -way, and will own, operate, maintain and from time to time expand, extend, enlarge, improve and repair the System. The District shall exercise due diligence and use its best efforts to complete construction of Phase lA of the System in stages as provided herein. Phase IB shall be constructed and completed as necessary and as otherwise provided herein. 4. Section 6,01 (a)(1) COST OF PHASE IA OF SYSTEM is added as follows: (1) Upon execution of this Amendment No. 1 by all parties, the District shall be authorized to proceed with establishing Funding Dates for the following: a. Reimbursements to Round Rock and Bill Milburn Company in accordance with the Agreement provisions; b. Engineering line design; c. Engineering studies and updates; d. Easement acquisition and Project Management Costs; and shall also be authorized to proceed with design and solicitation for bids for Contract 5, "Phase II" and Contract 6 in accordance with Section 6.01(b)2 herein. The District shall not be authorized to proceed with funding of construction or the establishment of funding dates for future stages and /or phases unless the Customers approve funding for such stage or phase. 5. That Section 6.01 (a) COST OF PHASE IA OF SYSTEM is amended to read as follows• (2) Upon execution of this Amendment No. 1 by all parties, the District intends to construct Phase 1 of the System in two phases to be known as Phase lA and Phase 1B, as described in the Engineering Report. The parties recognize that the stages of Phase lA and Phase 18 of the System will be 2 designed and advertised for bid by the District at separate times as described later in this section. The parties further recognize that although each Customer will not become fully liable for its pro rata share of the construction costs of the various stages and phases until such time as construction bids are obtained by the District; nevertheless, the District has incurred or will incur Project Costs for contractual reimbursements hereinunder, design of the System, preparation of plans and specifications for construction of the System, and certain engineering, legal, administrative and other expenses included in the Project Costs of the System prior to the time that construction bids are accepted. The District has no source of funds to pay the Project Costs of Phase lA of the System other than those provided by the Customers which such funds have previously been deposited to the District by the Customers as shown in Exhibit "S" or which shall be paid to the District as described below. Therefore, the parties agree that all Customers shall pay to the District their pro rata share of any supplemental Fundings for Project Costs for such reimbursements and other Project Costs incurred prior to acceptance of construction bids of the four stages of Phase 1A of the System within forty -five (45) days of such call for supplemental Funding by the District. Project Costs for any funding required to be paid by all Customers shall be calculated as follows: (a) each Customer's share of Line Project Costs shall be determined by dividing the estimated Line Project Costs of Phase lA of the System to be incurred prior to the other Funding Dates by the number of LUEs of Total Reserved Line Capacity in Phase lA of the System and multiplying the result times the Customer's number of LUEs of Reserved Line Capacity in Phase lA of the System. (b) each Customer's share of Treatment Project Phase Costs of Phase 1A of the System shall be determined by dividing the estimated Treatment Project Phase Costs of Phase lA of the System to be incurred prior to the other Funding Dates by the number of LUEs of Total Reserved Treatment Capacity in Phase lA of the System and multiplying the result times the Customer's number of LUEs of Reserved Treatment Capacity in Phase 1A of the System, and (c) each Customer's share of Treatment Project Common Facilities Costs shall be determined by dividing the Treatment Project Common Facilities Costs of Phase lA of the System by the total number of LUEs of Total Reserved Common Capacity of all Customers in Phase lA of the System and multiplying the result times the Customer's number of LUEs of Reserved Common Capacity in Phase lA of the System. 6. That Section 6.01 (b) COST OF PHASE IA OF SYSTEM is amended to read as follows; (1) As provided hereinafter, the District shall proceed to take all' action necessary to acquire or construct each stage of Phase lA of the System, including obtaining appropriate easements, making appropriate surveys, obtaining appropriate permits and governmental approvals and taking all other necessary and proper actions. All plans and specifications shall be submitted to the Customers for their comments which must be received within thirty (30) days after receipt of same. The District shall make any adjustments to the plans and specifications which it deems appropriate thereafter. The District anticipates that after final plans and specifications have been prepared, a period of thirty (30) days will be necessary in order to obtain approval by all appropriate regulatory bodies of the plans and specifications. After all such approvals have been obtained, the District shall proceed to advertise for bids for construction of Phase lA of the System in four stages. The four stages of Phase lA of the System are described in the Engineering Report and shall be as follows: Stage Facilities Trigger Stage 1 Contract 5 - Phase II None Contract 6 Stage 2 5 MOD Wastewater Regional flows exceed Treatment Plant interim capacity avail- able from City of Round Rock 3 Stage 3 Stage 4 Contracts 2, 3, 8b and 40/44 Force Main Contracts 20, 20a & 21 4 Flow to Lake Creek Lift Station maximum capacity =3,000 gpm Flows to Onion Branch Lift Station maximum capacity= 5,000 LUEs The Customers shall be authorized to determine that the trigger for each stage has been met, that demand exists for additional facilities and that funding of the construction should occur. (2) Prior to advertising for bids for the first stage of Phase 1A, the District shall notify the Customers and the Technical Committee of the estimated cost of construction of such first stage of Phase lA based on the Engineers' recommendation of such construction costs. Upon receipt of the bids for the first stage of Phase 1A, the District shall tabulate the bids and notify the Customers and the Technical Committee of the bids which have been received. The District shall notify the Customers and the Technical Committee, based on the Engineers' recommendation of the lowest and best bid, or bide, of the as -bid Project Costs of the first stage of Phase lA of the System. If the as -bid Project Costs of the first stage of Phase lA do not exceed the estimated cost of construction of such first stage of Phase lA of the System for which bids were received by more than ten (10) percent, and the prorata cost share of the City of Austin for such construction and the items authorized pursuant to Section 6.01 (a)(1) does not exceed $3.8 million in Fiscal Year 88 -89 and $6.4 million for items authorized in this Section and Section 6.01(a)(1), without prior Austin City Council approval, then the District shall establish a Funding Date for the first stage of Phas time that such construction bids for those contracts contained in the first stage of Phase lA of the System expire, but shall not be less than forty -five (45) days after the date the District notifies the Customers and the Technical Committee of the recommended low bid. If the as -bid Project Costs of the first stage of Phase 1A exceeds the estimated cost of construction of such first stage of Phase lA of the System by more than ten (10) percent, then within thirty (30) days after receiving such notice from the District, each Customer shall notify the District as to whether or not it desires the District to proceed with the construction of the first stage of Phase lA of the System. The District shall then establish a Funding Date for the first stage of Phase 1A of the System, which Funding Date shall be prior to the time that such construction bids for those contracts contained in the first stage of Phase lA of the System expire, but shall not be less. than forty -five (45) days after the date the District notifies the Customers and the Technical Committee of the recommended low bid. If any Customer does not so authorize the District to proceed to acquire or construct the first stage of Phase 1A, prior to the expiration of thirty (30) days after the date the District notifies the Customer and the Technical Committee of the recommended low bid, then the District shall not be obligated to so proceed and the parties shall have no further obligations one to the other under this Agreement and the District shall return any excess moneys in the Construction Fund which are not needed to pay Project Costs to each Customer as appropriate: provided, however, the District and the remaining Customers agree to use their best efforts to continue to construct the System without the declining Customer. If all Customers shall notify the District that they desire the District to proceed with the construction of the first stage of Phase lA of the System, the District shall thereafter establish a Funding Date for the first stage of Phase lA of the System, which Funding Date shall be prior to the time that such construction bids for those contracts contained in the first stage of Phase lA of the System expire, but shall not be less than forty -five (45) days after the receipt of notice from all Customers to proceed with the construction of the first stage of Phase lA of the System. (3) Upon request by the District, the Customers shall determine that the trigger for construction of the second stage has been met, and /or that demand exists for additional facilities and that funding of the construction should occur. Prior to the District's advertising for bids for the second stage of the Phase 1A, the District shall receive the Customers' authorization to construct and fund such second stage of Phase 1A. Additionally, prior to advertising for bids for the second stage of Phase 1A, the District shall notify the Customers and the Technical Committee of the estimated cost of construction of such second stage of Phase lA based on the Engineers' recommendation of such construction costs. Upon receipt of the bids for the second stage of Phase lA of the System, the District shall tabulate the bids and notify the Customers and the Technical Committee of the bids which have been received. The District shall notify the Customers and the Technical Committee, based on the Engineers' recommendation of the lowest and best bid, or bids, of the as -bid Project Costs of the second stage of Phase 1A. If the as -bid Project Costs of the second stage of Phase lA do not exceed the estimated cost of construction of such second stage of Phase lA of the System for which bids were received by more than ten (10) percent, then the District shall establish a Funding Date for the second stage of Phase lA of the System, which Funding Date shall be prior to the time that such construction bids for those contracts contained in the second stage of Phase lA of the System expire, but shall not be less than forty -five (45) days after the date the District notifies the Customers and the Technical Committee of the recommended low bid. If the as -bid Project Costs of the second stage of Phase lA exceeds the estimated cost of construction of such second stage of Phase 1A of the System by more than ten (10) percent, then within thirty (30) days after receiving such notice from the District, each Customer shall notify the District as to whether or not it desires the District to proceed with the construction of the second stage of Phase lA of the System. If any Customer does not so authorize the District to proceed to acquire or construct the second stage of Phase 1A, prior to the expiration of thirty (30) days after the date the District notifies the Customer and the Technical Committee of the recommended low bid, then the District shall not be obligated to so proceed and the parties shall have no further obligations one to the other under this Agreement with regard to construction of any future stages or phases of the Project and the District shall return any excess moneys in the Construction Fund which are not needed to pay Project Costs to each Customer as appropriate: provided, however, the District and the remaining Customers agree to use their best efforts to continue to construct the System without the declining Customer. If all Customers shall notify the District that they desire the District to proceed with the construction of the second stage of Phase 1A of the System, the District shall thereafter establish a Funding Date for the second stage of Phase lA of the System, which Funding Date shall be prior to the time that such construction bids for those contracts contained in the second stage of Phase lA of the System expire, but shall not be less than forty -five (45) days after the receipt of notice from all Customers to proceed with the construction of the second stage of Phase lA of the System. - (4) Upon request by the District, the Customers shall determine that the trigger for construction of the third stage has been met, that demand exists for additional facilities and that funding of the construction should occur. Prior to the District's advertising for bids for the third stage of the Phase 1A, the District shall receive the Customers' authorization to construct and fund such third stage of Phase 1A. Additionally, prior to advertising for bids for the third stage of Phase 1A, the District shall notify the Customers and the Technical Committee of the estimated cost of construction of such third stage of Phase lA based on the Engineers' recommendation of such construction costs. Upon receipt of the bids for the third stage of Phase lA of the System, the District shall tabulate the bids and notify the Customers and the Technical Committee of the bids which have been received. The District shall notify the Customers and the Technical Committee, based on the Engineers' recommendation of the lowest and best bid, or bids, of the as -bid Project Costs of the third stage of Phase 1A. If the as -bid Project Costs of the third stage of Phase lA do not exceed the estimated cost of construction of such third stage of Phase lA of the System for which bids were received by more than ten (10) percent, then the District shall establish a Funding Date for the third stage of Phase lA of the System, which Funding Date shall be prior to the time that such construction bids for those contracts contained in the third stage of Phase 1A of the System expire, but shall not be less than forty -five (45) days after the date the District notifies the Customers and the Technical Committee of the recommended low bid. If the as -bid Project Costs of the third stage of Phase lA exceeds the estimated cost of construction of such 5 third stage of Phase lA of the System by more than ten (10) percent, then within thirty (30) days after receiving such notice from the District, each Customer shall notify the District as to whether or not it desires the District to proceed with the construction of the third stage of Phase lA of the System. If any Customer does not so authorize the District to proceed to acquire or construct the third stage of Phase 1A, prior to the expiration of thirty (30) days after the date the District notifies the Customer and the Technical Committee of the recommended low bid, then the District shall not be obligated to so proceed and the parties shall have no further obligations one to the other under this Agreement with regard to construction of any future stages or phases of the Projett, and the District shall return any excess moneys in the Construction Fund which are not needed to pay Project Costs to each Customer as appropriate; provided, however, the District and the remaining Customers agree to use their best efforts to continue to construct the System without the declining Customer. If all Customers shall notify the District that they desire the District to proceed with the construction of the third stage of Phase 1A of the System, the District shall thereafter establish a Funding Date for the third stage of Phase lA of the System, which Funding Date shall be prior to the time that such construction bids for those contracts contained in the third stage of Phase 1A of the System expire, but shall not be less than forty -five (45) days after the receipt of notice from all Customers to proceed with the construction of the third stage of Phase lA of the System. (5) Upon request by the District, the Customers shall determine that the trigger for construction of the fourth stage has been met, that demand exists for additional facilities and that funding of the construction should occur. Prior to the District's advertising for bids for the fourth stage of the Phase 1A, the District shall receive the Customers' authorization to construct and fund such fourth stage of Phase 1A. Additionally, prior to advertising for bids for the fourth stage of Phase 1A, the District shall notify the Customers and the Technical Committee of the estimated cost of construction of such fourth stage of Phase lA based on the Engineers' recommendation of such construction costs. Upon receipt of the bids for the fourth stage of Phase lA of the System, the District shall tabulate the bids and notify the Customers and the Technical Committee of the bids which have been received. The District shall notify the Customers and the Technical Committee, based on the Engineers' recommendation of the lowest and best bid, or bids, of the as -bid Project Costs of the fourth stage of Phase 1A. If the as -bid Project Costs of the fourth stage of Phase lA do not exceed the estimated cost of construction of such fourth stage of Phase lA of the System for which bids were received by more than ten (10) percent, then the District shall establish a Funding Date for the fourth stage of Phase lA of the System, which Funding Date shall be prior to the time that such construction bids for those contracts contained in the fourth stage of Phase lA of the System expire, but shall not be less than forty -five (45) days after the date the District notifies the Customers and the Technical Committee of the recommended Iow bid. If the as -bid Project Costs of the fourth stage of Phase lA exceeds the estimated cost of construction of such fourth stage of Phase lA of the System by more than ten (10) percent, then within thirty (30) days after receiving such notice from the District, each Customer shall notify the District as to whether or not it desires the District to proceed with the construction of the fourth stage of Phase 1A of the System. If any Customer does not so authorize the District to proceed to acquire or construct the fourth stage of Phase 1A, prior to the expiration of thirty (30) days after the date the District notifies the Customer and the Technical Committee of the recommended low bid, then the District shall not be obligated to so proceed and the parties shall have no further obligations one to the other under this Agreement with regard to construction of any future stages or phases of the Project, and the District shall return any excess moneys in the Construction Fund which are not needed to pay Project Costs to each Customer as appropriate: provided, however, the District and the remaining Customers agree to use their best efforts to continue to construct the System without the declining Customer. If all Customers shall notify the District that they desire the District to proceed with the construction of the fourth stage of Phase lA of 6 the System, the District shall thereafter establish a Funding Date for the fourth stage of Phase lA of the System, which Funding Date shall be prior to the time that such construction bids for those contracts contained in the fourth stage of Phase 1A of the System expire, but shall not be less than forty -five (45) days after the receipt of notice from all Customers to proceed with the construction of the fourth stage of Phase lA of the System. 7. That Section 6.01 (e) COST OF PHASE IA OF SYSTEM is amended to read as fol ows• Funding as provided in this section is subject to the following provisions: (1) It is estimated that reimbursement to be due Austin pursuant to section 10.04 (b) is $7,150,000, and it is agreed that $7,150,000 of the amount to be paid by Austin on the Funding Date of the third stage of Phase lA shall be deferred until reimbursement is due Austin pursuant to Section 10.04 (a) and (b), at which time the amount of deferred payment above shall be credited to the actual amount of reimbursement as agreed by the District and Austin to be due Austin. Provided that if at such time such actual amount of reimbursement to be due Austin is greater than the deferred sum, Austin will be credited with the deferred sum in partial reimbursement, and, upon completion of the third stage of Phase 1A, the District will, if needed, call for a funding pursuant to Section 6.01 (c), by the Customer of their pro rata share of the balance of such reimbursement due Austin, and, upon receipt of such funds, shall pay Austin the balance of the reimbursement due. If such actual amount of reimbursement due Austin is less than the deferred amount, only that portion of the deferred payment as is equal to the actual amount of such reimbursement to be due Austin shall be credited to Austin, and, upon completion of the third stage of Phase 1A, the remaining balance of Austin's deferred payment shall be paid by Austin into the Construction Fund and credited pursuant to the provisions of Section 6.01 (c). If Austin does not complete and convey the Lake Creek Interceptor as provided for in Section 10.04 (a) within two years from the Funding Date of the third stage of Phase 1A, upon the expiration of such two year period, any deferred funding remaining unpaid shall immediately become due and payable by Austin to the District. (2) It is estimated that payment to be due Round Rock pursuant to Section 10.05 (a) is $525,000, and it is agreed that $525,000 of the amount to be paid by Round Rock on the Funding Date of the second stage of Phase lA shall be deferred until reimbursement is due Round Rock pursuant to Section 10.05 (a), at which time the amount of deferred payment above shall be credited to the actual amount of reimbursement as agreed by the District and Round Rock to be due Round Rock. Provided, that if at such time actual amount of payment to be due Round Rock is greater than the deferred sum in partial payment, and, upon completion of the second stage of Phase 1A, the District will, if needed, call for a funding pursuant to Section 6.01 (c), by the Customers of their pro rata share of the balance of such reimbursement due Round Rock, and, upon receipt of such funds, shall pay Round Rock the balance of the reimbursement due. If such actual amount of payment to be due Round Rock is less than the deferred amount, only the portion of the deferred payment as is equal to the actual amount of such reimbursement to be due Round Rock shall be credited to Round Rock, and, upon completion of the second stage of Phase 1A, the remaining balance of Round Rock's deferred payment shall be paid by Round Rock into the Construction Fund and credited pursuant to the provisions of Section 6.01 (c). If Round Rock does not convey the land as provided for in Section 10.05 (a) within 6 months of the Funding Date of the second stage of Phase 1A, upon the expiration of such 6 month period, any deferred funding remaining unpaid shall immediately become due and payable by Round Rock to the District. (3) It is estimated that reimbursement to be due Round Rock pursuant to Section 10.05 (b) for Phase lA Line Project Costs is $3,322,000, and it is agreed that $3,322,000 of the amount to be paid by Round Rock on the Funding Date for the initial Supplemental Funding of Phase lA shall be deferred until reimbursement is due Round Rock pursuant to Section 10.05 (b), at which time the amount of deferred payment above shall be credited to the actual amount of reimbursement as agreed by the District and Round Rock 7 to be due Round Rock. Provided that if at such time such actual amount of reimbursement to be due Round Rock is greater than the deferred sum, Round Rock will be credited with the deferred sum in partial reimbursement, and, upon completion of the first stage of Phase 1A, the District will, if needed, call for a funding pursuant to Section 6.01 (c), by the Customers of, their pro rata share of the balance of such reimbursement due Round Rock, and, upon receipt of such funds, shall pay Round Rock the balance of the reimbursement due. If such actual amount of reimbursement to be due Round Rock is less than the deferred amount, only that portion of the deferred payment as is equal to the actual amount of such reimbursement to be due Round Rock shall be credited to Round Rock, and, upon completion of the first stage of Phase 1A, the remaining balance of Round Rock's deferred payment shall be paid by Round Rock into the Construction Fund and credited pursuant to the provisions of Section 6.01 (c). If Round Rock does not complete and convey the facilities as provided for in Section 10.05 (b) within 6 months of the Funding Date of the first stage of Phase 1A, upon the expiration of such 6 month period, any deferred funding remaining unpaid shall immediately become due and payable by Round Rock to the District. (4) It is estimated that reimbursement to be due Round Rock pursuant to Section 10.05 (b) for Phase lA Treatment Project Common Facilities Costs is $1,850,000, and it is agreed that $1,850,000 of the amount to be paid by Round Rock on the Funding Date for the second stage of Phase lA shall be deferred until reimbursement is due Round Rock pursuant to Section 10.05 (b), at which time the amount of deferred payment above shall be credited to the actual amount of reimbursement as agreed by the District and Round Rock to be due Round Rock. Provided that if at such time such actual amount of reimbursement to be due Round Rock is greater than the deferred sum, Round Rock will be credited with the deferred sum in partial reimbursement, and, upon completion of the second stage of Phase 1A, the District mill, if needed, call for a funding pursuant to Section 6.01 (c), by the Customers of their pro rata share of the balance of such reimbursement due Round Rock, and, upon receipt of such funds, shall pay Round Rock the balance of the reimbursement due. If such actual amount of reimbursement to be due Round Rock is less than the deferred amount, only that portion of the deferred payment as is equal to the actual amount of such reimbursement to be due Round Rock shall be credited to Round Rock, and, upon completion of the second stage of Phase 1A, the remaining balance of Round Rock's deferred payment shall be paid by Round Rock into the Construction Fund and credited pursuant to the provisions of Section 6.01 (c). If Round Rock does not complete and convey the facilities as provided for in Section 10.05 (b) within 6 months of the Funding Date of the second stage of Phase 1A, upon the expiration of such 6 month period, any deferred funding remaining unpaid shall immediately become due and payable by Round Rock to the District. 8. That Section 6.01 (k) COST OF PHASE IA OF SYSTEM be amended to read as follows= Notwithstanding anything herein to the contrary, it is understood that Funding of Phase lA of the System shall occur in four stages as the District obtains bids for construction or otherwise acquires the System or parts thereof. The District, with the advice of the Technical Committee and the. District's engineer, will establish, and from time to time revise, a budget showing the estimated expenditures of and need for funds to construct or otherwise acquire Phase lA of the System in order to provide the Customers with as much notice as reasonable possible as to when Fundings will occur and how much money will be needed from each Customer. It is understood that each Funding will be designed to provide the District with sufficient funds to enter into all Project Contracts, and pay all Project Costs, (including engineering and contingencies) related thereto, to continue prompt construction and acquisition of the System. 9. Section 6.02 CONSTRUCTION OF PHASE 18 OF THE SYSTEM is amended to read as follows: Upon receiving requests from all the Customers to proceed with design acquisition and construction of Phase 1B of the System, the District shall determine within thirty days whether it will proceed' with development of Phase 1B and shall so notify the Customers and the Technical Committee. If requested by the Customers after the completion of Phase lA of the System, the District shall apply in its name for all necessary governmental approvals to acquire or construct Phase 1B of the System or any part 8 thereof. 10. That Section 10.04 (b) PROVISIONS APPLICABLE TO AUSTIN is amended to read as follows: Upon completion of that portion of the Lake Creek Interceptor as described in Section 10.04 (a) and conveyance thereof to the District, the District agrees to reimburse Austin for the costs thereof plus interest on said costs at a rate of interest as determined by the rate of return of the City of Austin Investment Pool on funds expended by Austin to pay for such costs with interest accruing from and determined by the rate prevailing on the date or dates of each payment of such costs by Austin to the date of payment therefor by the District. Such reimbursement shall be made in accordance with the provisions of Section 6.01 (e)(1). 11. That Section 10.05 PROVISIONS APPLICABLE TO ROUND ROCK is amended to read as follows: (a) It is expressly understood and agreed that Round Rock has acquired the plant site for the District's Wastewater Treatment Plant at great expense and Round Rock hereby agrees, if allowed by applicable law, to convey to the District ownership of such plant site free and clear of all liens and encumbrances except as otherwise agreed to by the District. The purchase price shall be twenty thousand (20,000) dollars per acre for approximately twenty -five (25) acres as described in Exhibit "E" attached hereto. Such sale shall be consummated upon receipt by the District of the funding for the second stage of Phase lA of the System. (b) The District agrees also to reimburse Round Rock for any and all out of pocket expenses incurred by Round Rock for design, acquisition or construction of certain Phase lA Line Project facilities and certain Phase lA Treatment Project Common facilities including access easement to the plant site as described in Exhibit "F" attached hereto, for Phase lA of the System (except for costs of acquiring any governmental permits), such reimbursement to occur upon conveyance of such easement and facilities." Such reimbursement shall include interest on such costs calculated at a rate of interest equal to the net effective rate on bonds issued by Round Rock to pay such costs with interest accruing from the date or dates of each payment of such costs by Round Rock to the date of payment therefor by the District. Such reimbursement shall be made in accordance with the provisions of Section 6.01 (e)(2), Section 6.01 (e)(3), and Section 6.01 (e)(4). 12. That Exhibits "C" and °D" be deleted in their entirety. This Amendment No. 1 to the Wastewater Disposal Agreement shall not become effective until duly and properly executed by the District and each of the Customers. The parties hereto agree that the Agreement is now and remains in full force and effect and do hereby ratify, adopt and confirm the same as amended above. IN WITNESS WHEREOF, the parties hereto acting under the authority of their respective governing bodies have caused this Agreement to be duly executed in several counterparts, each of which shall constitute an original, all as of the !O day of �19NJn , 1989. 9 ATTEST: R•scoe Conoley, Secretary ATTEST: ;C James E. Aldridge, City Clerk ATTEST: nne Land, y Secretary fl 322' 10 BRUSHY CREEK WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1 OF WILLIAMSON AND MILAM COUNTIES 301 Hesters Crossing, Suite 120 Round Rock, Texas 78681 Dan Mize, President Executed CITY OF AUSTIN P.O. Box 1088 Austin, Texas 78767 -8828 Barney Knight Acting City Manager Executed Mike Robinson, Mayor CITY OF ROUND ROCK 221 East Main Round Rock, Texas 78664 Executed �a/kW/2 _ r�C 1989 , 1989 , 1989