R-89-1228 - 1/26/1989RESOLUTION NO. Io2?$ R
WHEREAS, an Agreement Regarding Reservoir Construction and
Operation ( "Agreement ") between the City of Round Rock ( "City "), Bill
Milburn, Inc. ( "Milburn "), Williamson County Municipal Utility
District No. 2 and Fern Bluff Municipal Utility District has been
prepared respecting a 1,500,000 gallon elevated water storage tank,
and
WHEREAS, Milburn has submitted a letter agreement whereby it
will not seek to enforce certain provisions of the Agreement, and
WHEREAS, in consideration of the statements contained in said
letter agreement, the City Council wishes to approve the Agreement,
Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS
That the Mayor is hereby authorized and directed to execute on
behalf of the City, the Agreement, a copy of which is attached hereto
as Exhibit "A" and the letter agreement, a copy of which is attached
hereto as Exhibit "B ".
RESOLVED this the 26th day of January, 1989.
ATTEST:
NE LAND, City Secretary
C38RESAGREE
MIKE ROBINSON, Mayor
City of Round Rock, Texas
The Honorable Mayor Mike Robinson
City of Round Rock
221 East Main Street
Round Rock, Texas 78664
RE: Agreement Regarding Reservoir Construction and Operation
Dear Mayor Robinson:
I am writing on behalf of Bill Milburn, Inc. and Milburn Investments, Inc.
( "Milburn ") to confirm our understandings regarding the execution of the
Agreement Regarding Reservoir Construction and Operation, attached hereto as
Exhibit 'A ", by and between the City of Round Rock, Milburn, the Williamson
County Municipal Utility District No. 2 and the Fern Bluff Municipal Utility
District.
Milburn and the City of Round Rock have agreed that, as between themselves,
the Agreement is being executed with the understanding that Milburn will not
enforce or seek the enforcement of that certain provision set forth in
Paragraph 3.01 of the Agreement, which reads in pertinent part, as follows:
The City's share of costs shall be reimbursed to Milburn through
off -sets to City Fees."
If the foregoing correctly expresses your understanding of the mutual
agreements between Milburn and the City of Round Rock regarding the execution
of the above referenced Agreement, please indicate your agreement by signing
in the space indicated below, and returning the enclosed copy of this letter
to the undersigned.
Sincerely,
Jose • . DiQuinzio, Jr.
Vice President
Bill Milburn, Inc.
AGREED AND ACCEPTED:
44,
Mike Robinson
Mayor
Round Rock, Texas
Milburn Investments Inc.
Building New Homes the Old Way
January 24, 1989
h D in o, Jr.
Vice President
Milburn Investments, Inc.
11911 Burnet Road /P.O. Box 9802 #682/Austin, Texas 78766/(512) 835 -HOME
STATE OF TEXAS
COUNTY OF WILLIAMSON
AGREEMENT REGARDING RESERVOIR CONSTRUCTION
AND OPERATION
This Agreement is made and entered into on the ^ day of
, 1985 by and between the CITY OF ROUND ROCK,
TEXAS ( "City ") a home rule city located in Williamson County,
Texas, BILL MILBURN, INC., a Texas corporation, acting by and
through its duly authorized president ( "Milburn "), the WILLIAMSON
COUNTY MUNICIPAL UTILITY DISTRICT NO. 2 ( "District No. 2 "), a
conservation and reclamation district created pursuant to Article
XVI, Section 59 of the Texas Constitution and operating under the
provisions of the Texas Water Code; and the /SRN BLUFF MUNICIPAL
UTILITY DISTRICT, ( "Fern Sluff "), a conservation and reclamation
district created pursuant to Article XVI, Section 59 of the Texas
Constitution and operating under the provisions of Chapter 54 of
the Texas Water Code.
WITMRSSET
WISZSEAS, The City, District No. 2 and Fern Sluff desire to
finance, construct and have joint use of a 1,500,000 gallon
elevated water reservoir, and associated facilities ( "Reservoir ")
proposed to be located upon property presently owned by Milburn
and located within the proposed Fern Sluff district; and
WSSiMEAS, Milburn is the owner of a majority in value of the
land comprising Tern Bluff and desires to participate in the
construction of the Reservoir prior to the time of creation of
Fern Bluff by the Texas Water Commission ( "Commission "), and
WHEREAS, the City is the wholesale supplier of potable water
to District No. 2 and Fern Bluff: and
WHEREAS, the parties have determined that the Reservoir
sized to meet certain needs of the parties will beat service the
interests of the parties;
NOW, THEREFORE, for and in consideration of the promises and
the mutual obligations and benefits herein contained, the City,
District No. 2, Milburn and Fern Bluff hereby agree as follows:
$CTION I
1.01 The Reservoir. The Reservoir shall consist of water
reservoir and associated facilities described in Exhibit "A"
attached hereto and incorporated herein for all purposes.
Undivided pro -rata ownership of the Reservoir and capacity
reserved to each party shall be as shown in Exhibit "A ".
1.02 Deelen of the Reservoir. All physical facilities to be
constructed or acquired as a part of the Reservoir shall be
designed by Haynie, Kallman & Gray, Inc., or another duly
qualified engineer mutually agreeable to the parties. Such
design shall be subject to the approval of the City of Round Rock
and the Texas Department of Health and has been approved by
District No. 2.
1.03 Construetiop Ilesumemant of the Reservoir project. All
parties agree that Milburn shall be designated as the
Construction Manager of the Reservoir project described on
Exhibit "A" and shall have day to day control over the
construction of the Reservoir. District Me. 2 has reviewed the
bids received and has approved the award of the contract.
Milburn as Construction Manager shall make all monthly payments
on construction contracts in .accordance with the construction
contracts as set forth below in Article 2.01 and shall make
3-S$S.154 - 2
monthly reports to all parties on the monies paid to contractors
for the construction of the Reservoir.
1.04 Duties of the Engineer. The Engineer (1) shall make
recommendations to and advise the parties upon the award of
construction contracts, (2) shall make monthly reports to the
parties on the progress of construction; (3) shall approve all
pay estimates submitted and shall certify them as correct; (4)
shall provide monthly, by the first day of each month to Milburn
and District No. 2 their respective pro -rata estimates for
construction contract payments; (5) shall periodically, but no
less than twice a week, inspect the Reservoir during the
construction thereof, and (6) shall provide a Certificate of
Substantial Completion stating that the Reservoir was built
according to design and specifications. No changes to the plans
and specifications or change orders to the construction contracts
approved by the parties shall be made without prior approval of
Milburn and change orders resulting in a greater than 10%
increase in the aggregate of the original awarded contract shall
be approved by all parties.
1.05 Site for the Reaarveir. The Reservoir shall be located
as shown on Exhibit "B" attached hereto and incorporated herein
by reference. District Mo. 2 agrees to pay Milburn, owner of the
site of the elevated water reservoir,
share of the fair market developed
determined by • mutually arreed upon
appraiser. Milburn shall dedicate the
of the site to Fern Sluff upon creation
Fern Sluff and District No. 2 shall
pro-rata ownership interest is the site.
3- 6.5.154 - 3
its undivided pro -rata
value of the site as
independent real estate
remsiainq pro -rata share
of the District, so that
each have an undivided
1.06 Construction of Rsservoir. The Reservoir shall be
constructed in a good and workmanlike manner and all materials
used in such construction shall be free from defects and fit for
their intended purpose. The construction contract for the
Reservoir shall include • specific provision for a minimum one
year maintenance warranty by the contractor. Upon completion of
construction, Milburn shall provide Fern Bluff, District No. 2
and the City with final "as- built" mylar drawings acceptable to
District No. 2 for the Reservoir approved by the engineers.
District No. 2 shall have the right to inspect the Reservoir
prior to initiation of operation of the Reservoir.
SECTION II
2.01 Financing of the Engineering and Construction of the
Reservoir. It is underatoed and acknowledged that Milburn shall
advance monies for the pro -rata 'harem of Fern Bluff and the City
for costs of construction and associated costs. District No. 2
shall, within five (5) business days after notice from Milburn,
do one of followings (1) deposit an irrevocable letter of
credit issued by a national banking institution authorized to do
business in Texas in the form of the letter of credit attached
hereto as Exhibit "C ", or cash, with Milburn in the amount set
forth in Exhibit "A" shown as District No. 2's pro -rata share of
costs of the Reservoir or (2) establish an escrow account to be
administered under the terms and conditions of the Escrow
Agreement attached hereto as Exhibit "D" and incorporated herein
for all purposes and to be funded in the amount set forth in
Exhibit "A" shown as District No. 2's pro -rata share of costs of
the Reservoir.. Provided, however, in the event actual
engineering and construction' costs have been' determined through
the award of a construction contract, the letter of credit to be
posted by District No. 2 or the escrow account to be established
shall be based upon District No. 2's pre -rata share of those
costs and any associated wets. District Mo. 2 and Milburn agree
that should Milburn require District No. 2 to post the letter of
credit, cash er escrow agreement prior to the time of award of
the construction contracts, and if the amount of the Reservoir
costs change from those estimated and shown en Exhibit "A ", a
substitute letter of credit shall be posted within five (5)
3- 445.154 - 4
working days of the award of the construction contract or
additional cash or funding of the escrow account shall be
deposited within five (5) days of the award, whichever is
applicable. Upon the posting of a substitute letter of credit,
the original letter of credit shall be returned to District No.
2. Upon receipt by District No. 2 of the Engineer's monthly pay
estimate for the 'construction contract, which shall be •elivered
by the Engineer no later than the first day of the month, or upon
receipt of an invoice from Milburn for other associated costs of
the Reservoir, District )io. 2 shall pay to Milburn no later than
the tenth (10th) day of the same month such amounts requested
under the pay estimate or invoice. In the event such payment is
not received by Milburn from District No. 2 by the tenth (10th)
day of the month, Milburn shall be authorised to draw down on the
letter of credit or escrow account, whichever is applicable, from
time to tiling for such amounts requested by Kilburn for payment by
pay satinets or invoice. In tha event a pay estimate or invoice
is not submitted by the first day of the month, District No. 2
shall have one additional day for payment to Kilburn for each day
passed the first day of the month that the pay estimate or
invoice delivery is delayed. In the event additional sums are
required to fund approved change orders, District No. 2 shall
deposit within five (5) business days of notice of such
requirement by Milburn am additional irrevocable latter of
credit, cash er deposit funds in the escrow account, whichever is
applicable, in amounts to cover such additional costs to be
contributed by District Ile. 2. In the event District No. 2 fails
to deposit either the initial letter of credit or any subsequent
required letter of credit, sash or funds in the escrow account,
District No. 2's undivided pro -rata share interest in the
Reservoir shall be reduced.te an amount equal to the percentage
that District Me. 2's payments, actually made, are of the total
cost of the Reservoir. District No. 2 shall than be entitled to
use an amount of capacity of the Reservoir equal to such new
undivided pro -rata there. In such event, District No. 2 shall
have no further rights to additional capacity in the Reservoir
3- 845.154 - 5
over and above its reduced pro -rata share determined after its
default. District No. 2 shall have the right from time to time
to substitute a new letter of credit or funded escrow account in
the amount necessary to pay all remaining costs of the
Construction Project. Upon the substitution of a new letter of
credit or cash or an escrow account, the original letter of
credit shall be returned by Milburn to District No. 2.
SNTIOl1 III
3.01 Ownership of Reserl(Qir. The City, District No. 2 and
Fern Bluff shall each ow an undivided share of the Reservoir
equal to the pro -rata amount of capacity reserved for each party
as shown on Exhibit "A" attached hereto. District No. 2's
participation in the funding of the engineering and construction
costs shall entitle them to ownership of their pro -rata share of
the Reservoir. Fern Bluff shall purchase its pro -rata share of
the Reservoir from Milburn through the issuance of bonds as set
forth in that certain Water Supply Agreement between the City of
Round Rock, Texas and Fern Bluff Municipal Utility District dated
March 28, 1985. Provided, however, Milburn agrees that Fern
Bluff shall have the right to use of the Reservoir for its water
system prior to the time Fern Bluff purchases the Reservoir from
Milburn in return for Fern Bluff's agreement to operate and
maintain the Reservoir. NW Nrei il iump ; SS
r' `:. «� � ' .. ^ The
Reservoir shall be operated by Fern Bluff. Each party shall have
the right to access to the Reservoir for purposes of inspection.
It is understood and agreed by the parties that no party shall be
responsible for obtaining permits or other approvals for another
party to be able to use such capacity.
3.02 Definitions of Cnrer8tion and Maintenance Expenses. All
costs and expenses relating to operation, maintenance, repair and
replacement ( "Operation and Maintenance Expenses ") of the
facilities included in the Reservoir shall be shared by Fern
Bluff and District No. 2. District No. 2 agrees to pay a
percentage of the Operating and Maintenance Expenses equal to its
pro -rata share of ownership of the Reservoir. Operation and
Maintenance Expanses shall include all actual and reasonable
costs and ! xponses, incurred or allocatable to the operation and
maintenance of the facilities of the Reservoir including. without
limitation, wages and salaries, chemicals, the purchase and
carrying of stores, materials and supplies, power, supervision,
electric or gas service, engineering, assessments, claims,
insurance and all other its
nature reasonably required
maintenance and operation of
full compliance with all
and expenses of a like or different
or desirable for the efficient
the facilities of the Reservoir in
regulatory requirements and the
performance of the provisions of this Agreement; repairs and
replacements of damages, worn out or obsolete parts; improvements
and betterments to keep the facilities of the Reservoir in proper
operation to render adequate service and to comply fully with all
regulatory requirements; all costs associated with any penalties,
fines, litigation, or other legal or court costs, provided that,
if any party hereto, its agents or employees,
have unreasonable, negligently or intentionally
that party shall be solely responsible for such
to other property relating to the use of operation of the
facilities of the 'Reservoir provided that, if any party hereto,
its agents or employees, is determined to have unreasonably,
negligently or intentionally caused such costs that party shall
be solely responsible for such costs; and the reasonable and
necessary general and administrative expenses of Fern Sluff for
the Reservoir. The operation and maintenance expenses may
specifically include, but- shall not be limited to, (i) a
reasonable operating reserve consisting of at least one month
estimated operation and maintenance amasses and (ii) a
reasonable contingency reserved for ordinary and extraordinary
repairs and replacements, which reserve shall be established and
shall be replenished as required. In the event approved
3- 081.154 - 7
is determined to
caused such costs
costs; any damage
additional facilities are operated jointly, including, but not
limited to water pumps and related facilities, the above
enumerated costs incurred in connection therewith shall also be
"operation and maintenance expenses" or "operation and
maintenance costs ".
3.03 Funding of Operating and Maintenance Expenses. The
1
parties agree that funding of the Operating and Maintenance
Expenses shall be as follows:
a. Fern Sluff shall estimate and invoice District No. 2
quarterly in advance for its share of the Operating and
Maintenance Expenses of the Reservoir. District No. 2
agrees to pay the estimated quarterly Operation and
Maintenance Expenses within ten (10) working days of
its receipt of the invoice. District No. 2 agrees to
pay each quarterly estimate within ten (10) days of the
receipt of the invoice and in advance of the quarter
for which the costs are estimated. Exact costs after
actual expenditures shall be factored into the next
quarterly estimate to credit or debit District No. 2's
payments. Fern Sluff agrees to dedicate and segregate
funds in an amount equal to the pre -rata share of Fern
Bluff for such Operation and Maintenance Expenses for
each quarter in advance of such quarter.
b. In the event any additional Operation and Maintenance
Expanses are incurred in the management and operation
of the facilities of the Reservoir over and above those
which have been estimated in advance, District No. 2
hereto agrees to pay its pro -rata share of such
additional costs within ten (10) days of its receipt of
an invoice. Fern Sluff shall furnish District No. 2
.with monthly operating statements.
3 - 885.154 - 8
c. An Emergency Reserve shall be established by cash or
Letter of Credit in the amount of $2,500.00 deposited
with Fern Bluff by District No. 2 at the time the
elevated storage reservoir is operational. Any funds
spent from the Emergency Fund shall be replaced
immediately upon notification from Fern Bluff. The
amount to be supplied by the parties hereto_epch shall
be determined by and be equal. to the percentage of
Operation and Maintenance Expenses due from each during
the month in which the work using Emergency Reserve was
performed. In the event that major expenditures for
repairs or replacement of parts shall be necessary
prior to the time the Maintenance is adequately funded,
the costs shall be paid from the Emergency Reserve and
monies replaced in the Emergency Reserve as set out
below. In the event the letter of credit from District
No. 2 is inadequate to pay its pro -rata share of such
Maintenance, Fern Bluff shall submit an invoice to
District Mo. 2 and such invoice shall be paid within
than (10) days of the date of such invoice. Any such
invoice not paid within ten (10) days shall be
classified as past due and shall bear interest at the
same rates as provided for other invoices under this
Agreement. Fern Bluff shall also pest cash or a letter
of credit in the amount of $2,500 with District No. 2
to be entitled Bmergency Reserve, to be drawn upon by
District No. 2 in the event Fern Bluff fails or refuses
to make emergency repairs, normal maintenance or
refuses to pay normal Operation and Maintenance
Expense after written notice to the District Manager
of Fern Bluff. .Amy funds spent from the Fern Bluff
Emergency Reserve shall be replaced immediately upon
notification from Bistrict No. 2.
4 - . .,
2- 445.154 - 9
d. District No. 2 agrees that any invoices or bills
prepared and submitted by Fern Bluff to District No. 2
shall be paid within ten (10) days of the date of such
invoice and any invoice or bill pot paid within ten
(10) days shall be classified as past due and shall
bear interest at the highest rata permitted by
applicable law from its date until paid, and if there
is no highest rate established by applicable law, such
rate shall be deemed to be one and one-half percent per
month. It is further agreed that if any invoice
remains unpaid after thirty (30) days from its date,
Fern Bluff at its option may give notice in writing of
the delinquent invoice and if the invoice amount plus
interest is not paid within five (5) days of such
notice, Fern fluff at its option, may elect to draw on
the letter of credit or cash designated for the
Emergency Reserve under Paragraph b above. So long as
such bill or bills remain unpaid, District No. 2 shall
not allow additional water customers to connect to its
system. This is in addition to any other remedy at law
or in equity. In addition, District No. 2 shall be
obligated to pay reasonable attorney's fee incurred in
the collection of delinquent payments or the
enforcement of other legal proceedings.
s. All sums payable ender this Agreement shall be paid
without setoff, counterclaim, abatement, or suspension
except as otherwise provided herein. If District No. 2
disputes the amount to be paid, it shall nonetheless
promptly make payments as contained on the invoices,
and if it is subsequently determined by agreement or
court decision that any such payment should have been
less, the proper adjustments will be made at Chat time.
f. All books and records relating to the Operation and
Maintenance Expenses of the facilities of the Reservoir
3- U5.154 - 10
will be preserved by Fern Bluff for a period of four
years. District No. 2 hereto shall have the right at
all reasonable business hours to examine such books and
records. If such examination reveals an inaccuracy in
such billings theretofore made, the necessary
adjustment in such billing shall be promptly made;
provided that no adjustment for any billing shall be
made more than two years after its rendition.
q. Fern Bluff and District No. 2 hereto agree that each
District will maintain a policy of comprehensive
liability insurance with a minimum limit of
$2,000,000.00 in full force and effect at all times for
their respective districts which policies shall include
the Reservoir as an insured facility. In addition, each
District shall maintain an umbrella policy for
comprehensive liability insuring facilities of the
Reservoir in an amount not less than $2,000,000.00.
h. Each party hereto shall he responsible for
installation, operation and maintenance of all meters
within their respective service areas and for the
billing of individual customers within such service
areas. No party's obligations to pay their share of
Operation and Maintenance Expenses of the facilities of
the Reservoir shall be off -set or diminished by the
failure of say of such customers to make payments to
such party.
3.04 Uss of Water Stvase Capacity. It is specifically
understood and agreed by tbs parties that each party's right to
use of the water storage and transmission main capacity of the
Reservoir shall be strictly limited to each party's pro -rata
share set forth in Exhibit "A" attached hereto. Each party
agrees that it shall not allow additional water connections to
its system which would require the use of more capacity, as
3-215 .154 - 11
defined in gallons per day, within the Reservoir than has been
reserved for the party in Exhibit "A" hereto. In an effort to
allow each party to monitor another party's use of capacity, for
purposes of determining each party's use of the Reservoir, each
party agrees that its books and records regarding commitments to
property owners for water capacity and actual water connections
utilizing storage of the Reservoir shall be open tb.ipspect by
the other parties upon request during normal business hours.
Each party specifically agrees to maintain current records of
water use and capacity and to make a determination prior to each
grant of water capacity that such grant does not exceed in the
aggregate with other commitments and uses that party's pro -rata
share of capacity in the Reservoir. Each party shall submit to
Fern Bluff on a monthly basis a list of new commitments made for
water service which would utilize the Reservoir and a total of
such commitments to date. In addition, the district manager of
Fern Bluff •hall each month read the master water meter
monitoring water flows to and from the water storage facility
which monitors the amount of water used from the water storage
facility by each party. In the event the fern Bluff district
engineer determines that a party has allowed water connections to
its systems that exceed its pro -rata share of capacity, such
party shall be obligated to deposit cash or an irrevocable letter
of credit with fern Sluff as project manager to fund engineering
and construction of such additional improvements to the Reservoir
at that party's sole expense to replace such capacity utilized in
violation of this Agreement. This obligation to replace capacity
utilised in violation of this Agreement shall not be considered
as a sole remedy to other parties for any damages suffered by
such other party or parties.
EIGTIOM IV
3 005.154 - 12
4.01 Use of Tressai seion Mains. It is
acknowledged by the parties that District 11e. 2
temporary use of certain water transmission mains
understood and
has a need for
( "Mains ") which
•
3- 465.154 - 13
are to be constructed by Milburn and dedicated to Fern Bluff and
which are described in more detail on exhibit "E ", attached
hereto and incorporated herein for all purposes, which will
transport water from the City utility system to the Reservoir.
District No. 2 has requested and Milburn and Fern Bluff have
agreed that District No. 2 shall have the right to utilize water
capacity from such Mains from the time that the Reservoir is
operational to such time as an alternate water feed, which shall
provide service to District No. 2 in an amount adequate to
provide water in an amount equal to District No. 2's pro -rata
share of the Reservoir, is available for operation. Provided,
however, under no circumstances shall the District be allowed to
use such Mains for longer than two (2) years from the date of
execution of this Agreement unless such two (2) year term is
extended by mutual consent of the parties. At the end of such
two (2) years if the parties have not reached an agreement to
extend the term, District Mo. 2 shall have the option to finance
and construct an alternate water transmission main to supply
water to the Reservoir. It is clearly understood that neither
Milburn nor Fern Bluff make any guarantee or representations a■
to when the Mains shall be available for operation and neither
shall have any liability to any person or entity for any delays
of operation of the Mains. District No. 2 shall pay to Fern
Bluff as compensation for the uses of the Mains an amount equal
to ten percent of the number of gallons of water per month used
by District Mo. 2, as determined by the amount shown on master
meter set between the Reservoir and the District No. 2's water
system, times the bulk water rate paid by District No. 2 to the
City, as amended from time to time: The City shall read such
master meter and bill District No. 2 for the water used by
District No. 2. District Me. 2 shall pay the City for water used
and shall pay Bern Bluff such compensation directly for the use
of the Mains. Fere Bluff shall own, operate and maintain the
Mains at all times.
$ CTION V
5.01 Termination. Unless terminated by mutual agreement of
the parties, by its terms, this Agreement shall continue in force
and effect for period of forty (40) years.
5.02 Waiver of Breach. No waiver or waiver of breach of
default by any party hereto of any term, covenant, 'condition er
liability hereunder shall be deemed or construed to be a waiver
of subsequent breaches or defaults of any kind under any
circumstances.
5.03 Modifications. This Agreement shall be subject to
change or only with the written consent of all
parties.
5.04 Infsrcament. In the avant it is necessary to employ an
attorney or attorneys to enforce the terms and conditions of this
Agreement against any defaulting party, said defaulting party,
shall pay all costs and expenses, including expert witness fees
and reasonable attorney's fees incurred in connection with the
enforcement of this Agreement upon final settlement, by agreement
or judgment, against said party.
5.05 J143lMivsmulas of lemsdies. It is not intended to
specify an exclusive remedy existing at law or in equity,
including specific performance and mandamus, may be availed by
any party and shall be cumulative.
S.06 foxes NeieUre. The term " Torce Majeure ", as employed
herein, shall mean and refer to acts of Dad; strikes, lockouts,
or other industrial disturbances; acts of public enemies; orders
of any kind of the Government of the United States, ' the State of
Texas or any civil or military authority; insurrections; riots;
3-485.154 - 14
epidemic; landslides; lightning; earthquakes; fires; hurricanes;
storms; floods; washouts; droughts; arrests; restraint of
government and people; civil disturbances; explosions; breakage
or accidents or machinery, pipelines, or canals; other causes not
reasonably within the control of the party claiming such
inability. If, by reason of Force Majeure, any party hereto
shall be rendered wholly er partially unable to carry out its
obligations under this Contract, then such party shall give
written notice of the full particulars of such Force Majeure to
the other party within then (10) days after the occurrence
thereof. The obligations of the party giving such notice, to the
extent affected by such Force Majeure, shall be suspending during
the continuance of the inability claimed, except as hereinafter
provided, but for no longer period, and any such party shall
endeavor to remove or overcome such inability with all reasonable
dispatch. - -It is understood and agreed that the settlement of
strikes and lockouts &hall be entirely within the discretion of
the party having the difficulty, and that tho above requirement
that any Force Majeure shall be remedied with all reasonable
dispatch shall not require that the settlement be unfavorable in
the judgment of the party having the difficulty.
5.07 ssveraility. The provisions of this Agreement are
severable, and if any word, phrase, clause, sentence, paragraph,
section or other party of this Agreement •r application thereof
to any person er circumstanse shall ever be held by any court of
competent jurisdiction to be invalid or unsemstitutjonal for any
reason, the remainder of this Agreement * the application
thereof to other persons •r circumstances shall be affected
thereby.
5.00 Motile* to Parties. Any notice or approval to be given
hereunder by either party to the other shall be in writing and
may be effective by personal delivery of by sending said notice
by registered or certified mail, return receipt requested to the
address set forth below. Motice shall be deemed received when
3- 886.154 - 15
deposited with the United States Postal Service with sufficient
postage affixed.
Notice to the City of Round Rock shall be addressed to:
City Manager
City of Round Rock
211 Main Street
Round Rock, Texas 78680
Notice to Williamson County M.U.D. No. 2 shall be sent0 to:
District Manager
Williamson County M.U.D. No. 2
3737 Hairy Nan Road
Round Rock, Texas 78681
Attn: General Manager
Notice to the Bill Milburn Ge► shall be sent to:
Joseph A. DiQuinsie, Jr.
The Bill Milburn Gesgta.y Inc.
Post Office Box 980 -2682
Austin, Texas 78766
Notice to the Bern Bluff M.U.D. shall be seat to:
Fern fluff M.U.D.
c/o Sharlene N. Collins
2600 One Aeaerican Center
Austin, Texas 78701
Copy to:
The Bill Milburn O a Inc.
Post Office Box 9802 -682
Austin, Texas 78766
Attn: Joseph A. DiQuinsio, Jr.
5.09 Texas Law to Anoly. This Contract shall be construed
under and in accordance with the laws of the State of Texas.
5.10 This Agreement mey be executed by the City, Milburn and
District No. 2 prior to the creation of Fern Bluff and shall be
binding on these parties fax a period of two (2) years, pending
creation and confirmation of Fern Bluff. von said creation and
approval and execution of this Agreement by the
Board of
Directors, it shall thereafter be binding en all parties in
accordance with its terror.' In•the event that either Fern Bluff
is not created and confirmed or Fern Bluff fails to or refuses to
execute this Agreement within two (2) years, Milburn shall
dedicate its pro -rata share of the Reservoir to the City and the
3- 885.154 - 16
City shall have the obligation to operate and maintain the
Reservoir under the terms and conditions of this Agreement.
3- 05.154 - 17
WILLIAMSON COUNTY MUNICIPAL
UTILITY DISTRICT NO. 2
irec ' Vice -Presidsrsjeid of Di rectors
CITY OF ROI= ROCK
THE MILL MILBURN EISMPANy INC.
PM BLUNT MUNiICIPAL
UTILITY DISTRICT
Vice Presider!, rd of Directors
THE STATE OF T'%AS
COUNTY Of WILLIMISOM
This inat t was aehmewledged bee r� fore me o the 7 da
Y
of `¢2 C,
1M', by �! Ja,/ ! J r ,Vice -
Pres t e 'Ward e[ Directors Ilameen County
Municipal District Mo. 2, ea behalf of said District.
L
Z / _ moo
tart' 5, State of Texas
(Nano - Typal or Printed)
My cowmisei expires; ,3 / ' a
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
1
1
3- 865.154 - 18
This instrument was acknowledged before se on the day
of , 1985, by Mike Robinson, Mayor of the City
of Round Rock, Texas.
Notary Public, State of Texas .
- !
(Name - Typed or Printed)
My commission expires:
This instrument was acknowledged before no on the 7th day
of January 19514 by R4- - 1141INUrw,-- Pros}den -ef- -+ .
Bi1.L- JLLlbusw- fisspawy-, - -a- se-- sospeses4ewr -- es- bidoekd-- ef- -sefet
car-Fwasa • Joseph A. DiQuiasie, Jr., Vice Prssideat of Dill Milburn, Inc.,
a Texas corpora/Loa, on b.half of said corporatisa.
Notary ic, State of Texas
(Name - Typed or Printed)
My commission expires:
THE STATE OF TEAS 1 ,
COUNTY or WILLIAMSON 1
This instrument was acknowledged before sas on the .20 day
of ar , 1986, by 'Thomas J ,S id t. , President
of Sod of Directors of Fern S luMa�icipal Utility
District, on behalf of said District.
e
upit,t1 �ic, State of Te as
Sheri Qfddi) L•yy
MV m 14 •1Name - Typed or Printed)
My commission expires: 09- 'Pi 9a7
Brushy Creak Muth
fast Shia of Groat Oaks B16.
South Sids of i 628
Subtotal
ZILIZLILJIBININSIMMIK
Fern Bluff
Mound sock
6>salT M
MN mar ana memo um
16IIa10 I
.1
Subtotal 5460 L.O.e.'s
TOOIL '>a (1,588,688 sallow) 8,666+ L.8.8.'8
• Capacity !Gains 1 54 geldesp. x 3.3 amp/L.11.11.
MINIM
11=1112111.02111S
2,46O L.O.M.', 4340,768.06 28.44
4 L L.O.1.'8 1 2,1!1,,11 3Lk
3,516 L.O.L.'s 4483,114.24 40.32
3,876 L.O.e.'s 8418,824.6 34.22
Alialllat 21.11
715,68+.76 58.48
1,116,280.00 100.60
IMMIX OiRRIP'lION
This project consists el ssaatructiap a 1.5 million gallon billropillar type elevated
storage tank with fwraitisn sad ausalabd eppnst oaaoss. 'lea Contract to he awarded
to a sings csstsonesc mill also kakis all of the assawsay work such as yard piping,
vault hew, Tatars, valves, absatriaal aetrsL, ohloriaakha eguipvent, chlorination
building, , s as maak r 5rkkdag be o®pletaly WW1 aid place into operation
this as dram oaths 5laas.
.e x.
f
�4 0 *woo
I
I I
.M�
p
N N � � ilO1 M7r
w�rr�i ww
� S
L
L ��•�
i
X IT "
arura� (�J
sr we i rr�w rs r mws rr[ ! r�.0 �+•
ATTEST*
A: 3- 115.115
EXHIBIT "C"
IRREVOCABLE LETTER OF CREDIT
NO.
DATE:
TO: The Bill Milburn Company d "Payee ")
Gentlemen:
We hereby issue this Irrevocable Letter of Credit in your
favor and authorise you to draw at sight ea ourselves for the
account of
for any sum er some not exceeding in the aggregate
$
We do hereby agree with drawers, endorsers and bona fide
holders of drafts negotiated under and in compliance with the
terms of this Letter of Credit that the same shall be duly
honored upon presentation aad delivery thereof, if negotiated or
presented on or before January 31, 1987, but not thereafter,
provided the presentation and delivery thereof is accompanied by
the affidavit of an authorized officer of The Rill Milburn
Company stating that suck letter is being called pursuant to the
terms and provisions of that one certain AGREEMENT REGARDING
RESERVOIR CONSTRUCTION AND OPERATION. We specifically waive all
rights, if any, including but not limited to Section 5 - 12 of
the Uniform Commercial mode to defer or delay honor or payment of
any sight draft.
This credit is governed by the Uniform Commercial Code in
force in the State of Tomas on the date hereof and is subject to
the Uniform Customs and Practices for Documentary Credits (1974
Revision), International Chamber of Commerce Publication No. 290.
SY:
Its
For and in consideration of the mutual promises, covenants,
obligations, and benefits of this Agreement, District, Milburn,
and Escrow Agent agree as follows:
1. After execution of the Agreement legarding1Reservoir
Construction and operation ( "Reservoir Agreement ") and within
five (5) days following written notice iron Milburn to the
District,
AGREEMENT
the District shall deposit with the Escrow Agent an
amount equal to 1443,114.24 to be held by the Escrow Agent in a
separate account for use in accordance with this Escrow
Agreement. This Escrow Deposit shall be assured in the manner
required for security of Sands of the District. All earnings
from interest on or invsstnsat of the funds shall accrue to this
accouat.
2. District and Milburn understand and agree that
additional deposits may be required in the event construction
costs are greater than presently estimated pursuant to the terms
and conditions of the Reservoir Agreement.
3. The Dsorew Agent shall pay the District's share of all
construction seats attributable to the project from the escrow
accasat as and when the some became dims and payable upon
presentation of ea affidavit by an authstrised repriosatative of
Milburn that such funds ars being drawn paismaat to the terms of
the Reservoir Agra:msat.
4. It is understood and agreed that Milburn; pursuant to
the terms of the Reservoir Aprsemeat, shall first submit an
invoice for payment by the District and if payment is not
received by the 18th of the month, Milburn may draw from the
Escrow Accouat.
3 1185.202 -2 (11/25/88)
EXHIBIT "D"
ESCROW AGRIII iT FOR PAYMENT TO SILL MILBURN,
INC. OF DISTRICT'S SNARE OF COIIS7'UNCTIOIi COSTS
FOR 1.5 MILLION GALLON ELEVATED IMAGE TANK
TEE STATE OF TEXAS
COUNTY OF WILLIAMSON <
This Escrow Agreemaat is made , 1985,
between Williamson County Municipal Utility District No. 2
(hereinafter referred to as "District ");
Rill Milburn, Inc.
(hereinafter referred to as "Milburn"); aoA Frostier National
Sank (hereinafter referred to as "Escrow Agent");
UIfMNSSETE
NGAREAS, the District and Milburn require water storage
capacity to nerve a portion of District's service area and
Milburn's ''Fora Bluff development, and Milburn has made a
commitment to ceastruct water storage capacity for the City of
Round Rock; mad
WEEREAS, the District, Milburn, and the City of Round Rock
have entered into an agreement for the oeastruction of a 1.5
million gallop elevated storage teak, with associated
appurtenances and fixtures (the "project "), a copy of which
agreement is attached hereto as Exhibit "A" hereof, and it is
agreed that Milburn will he the coestrlutise manager for the
projestt and
WEERSAS, the District is responsible for paying Milburn a
portion of the eemstrwetime costa, including eagiasering and
other oonstreetiem- related emits as provided by the agreement for
the Project; mom
OMMIMAS, District and Milburn desire to establish a
practical muses for assuring the timely peyeeat to Milburn by
District of the District's share of the aosetruction oasts.
■ Cp
5. The Escrow Agent shall be liable as a depository only
and shall not be responsible for the sufficiency or accuracy of
the form, execution, er validity of documents deposited
hereunder, or any descriptiea of property er other thing therein,
nor shall it be liable in any respect on account of the identity,
authority, or rights of the persons executing or delivering or
purporting to execute or deliver any such dominant or
G. The Escrow Agent shall not be liable for collection
itemel nor shall it be liable for the default in payment of any
installment, aor the outlawing of any rights under the statute of
Limitations in respect to any documents deposited. It may rely
upon any paper, document er ether writing believed by it to be
authentic in making any delivery herewith.
7. In accepting any funds, securities or documents
delivered hereunder it is agreed and understood' between the
parties hereto that the Esarew Agent will net be called upon to
construe any contract er instrument deposited herewith.
1. It is further agreed that the Escrow Agent at the
completion of the project, as evidesoed by completion
certificates, or two years from date, whichever first occurs,
shall consider this Escrow Agreement of no further force and
e ffect, and shall deliver the unreleased funds and documents or
instruments hereby deposited by the Distrist to District, and
that redelivery of such deemments, moneys er instruments shall
relieve the said *screw A ast from any further liability with
reference thereto. This prevision however, may at any time be
waived by the Escrow Agent, and an extension of the term of this
E scrow Agreement may be altered into at any time by the mutual
consent of the parties hereto, reduced to writing and delivered
to and accepted by the said Escrow Agent.
It is further understood and agreed between the
parties that these instrwmsats supersede any other contract or
3.11$5.3$2 -3 (11/25/$5)
agreement with reference to this Escrow Deposit, in so far as
said Escrow Agent only is concerned, and that the Escrow Agent
may rely absolutely hereon to the exclusion of any and all other
agreements between the parties hereto.
DISTRICT:
S ys
MILBURN:
ESCROW AGENT:
By:
3 1185.202 -4 (11/25/85)
Williamson County Mupicipal
Utility District No. 2
3737 dairy Man Road
Round Rock, Texas 78664
Judy Sd:o11, President
B ill Milburn, Inc.
11911 Burnet Road
Austin, Tomas 78758
By:
Frontier National Sank
Post Offiee lox 38
Round Reck, Texas 78680 -0038
WILLIMOSON CO.
MAUL II
FEINT BLUFF Y.U.D.
!!r Ls INL
■�I■ew —
!f/f lE'
V.C. OL. fop 10711 U
w!>r01/1 w
I.L IL. w flp�LilE
U.T.8
£*IIS E
DATE: January 24, 1989
SUBJECT: Council Agenda, January 26, 1989
ITEM: 8F. Consider a resolution authorizing the Mayor
to enter into an agreement with Bill Milburn
Company regarding the operation of the
Fern Bluff Water Tank.
STAFF RESOURCE PERSON: Jim Nuse /Steve Sheets
STAFF RECOMMENDATION: Round Rock has not entered into this
agreement because of some language regarding certain credits
for system improvements. These modifications have been
made by way of the enclosed agreement between Round Rock and
Milburn. Staff recommends acceptance of these two agreements.
ECONOMIC IMPACT: