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R-91-1644 - 8/22/1991WATER SUPPLY AGREEMENT BETWEEN THE CITY OF ROUND ROCK, TEXAS AND FERN BLUFF MUNICIPAL UTILITY DISTRICT THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WILLIAMSON § This Water Supply Agreement ( "Agreement ") is made and entered into as of the 2 day of , 1991 by and between the City of Round Rock, Texas ( "City "), a home rule city located in Williamson County, Texas and Fern Bluff Municipal Utility District ( "District "), 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. RECITALS Whereas, the City and the District have previously entered into that certain Water Supply Agreement between the City of Round Rock, Texas and Fern Bluff Municipal Utility District dated March 28, 1985 ( "Prior Agreement "), and Whereas, the City and the District desire to amend those sections of the Prior Agreement concerning water service from the City to the District, and Whereas, the City owns and operates a potable water supply system, and Whereas, the City has a supply of water not contracted to others and available for the District's use, and Whereas, the City desires to and is authorized to provide water service outside its corporate limits, and l (,o'1 41R, Whereas, the District desires to purchase water service from the City, and whereas, the City and the District are authorized to execute this Agreement by S402.014 of the Texas Local Government Code, as amended; Now Therefore, for and in consideration of the premises and mutual obligations and benefits herein contained, the City and the District hereby agree as follows: ARTICLE I DEFINITIONS The terms and expressions used in this Agreement, unless the context indicates otherwise, shall have meanings as follows: 1.01. "Agreement" means this Water Supply Agreement. 1.02. "Board" and "Board of Directors" means the Board of Directors of the District. 1.03. "Point(s) of Delivery" means the location at which water passes through a master meter and thereafter is owned and controlled by the District. 1.04. "Water" means potable water suitable for use for domestic and municipal uses and meeting the requirements of the Texas Department of Health for public consumption. ARTICLE II WATER SERVICES 2.01. Water Service. The City shall deliver and sell water to the District, for commercial and domestic uses, to be supplied from the City's water treatment and distribution system. The City presently has and will maintain an adequate water supply -2- with which to meet the District's current needs. The City will make a reasonable effort to obtain an additional water supply of water to serve the future needs of the District; provided however, that the supply of water to the District may be reasonably limited by the City on the same basis and to the same extent as the supply of water to other customers within the City. The District shall require compliance with the City's water conservation ordinances, as amended from time to time. The City shall be the sole source of water to the District and the District shall not seek to develop its own wells, except in the event that the City is no longer able to provide water service as contemplated herein. The quantity of water service delivered by the City shall be measured by master meters at all delivery points. 2.02. Water Rates. The rate to be charged to and paid by the District for water actually delivered pursuant to this Agreement shall be set by ordinance as amended from time to time by the Round Rock City Council. Said rates shall be reasonable as that terms is used in S12.013 of the Texas Water Code and shall be based upon the same general methodology used to determine the rates set forth in this paragraph. The base water rates for the 1991- 1992 fiscal year beginning October 1, 1991 shall be $10.485 per active connection per month within the District. The gallonage rate, shall be $1.76 per 1000 gallons beginning October 1, 1991, may be adjusted from time to time in the same manner and amounts as it is adjusted for in -city customers of the City. -3- 2.03. Metering Equipment. The District, at its sole expense, shall install and maintain at the Point(s) of Delivery the necessary metering equipment and required devices of standard type to measure properly the quantity of water delivered to the District. The City, at its sole expense, shall install and maintain at any point where water passes from facilities owned by the District to other facilities, to be delivered to other customers of the City, the necessary metering equipment and required devices of standard type to measure properly the quantity of water delivered from the District's facilities to such other customers. Thereafter, the District at its cost shall calibrate once every twelve (12) months the metering equipment at the Point(s) of Delivery, provided, however, the cost of calibrating the metering equipment shall be borne by the City if requested more frequently than once every twelve (12) months. The District shall notify the City at least three (3) days prior to any such calibrations and the City shall have the right to have a representative present during such calibrations. The City shall at its cost calibrate once every twelve (12) months the metering equipment at the point where water passes from the District's facilities to other customers of the City, provided, however, the cost of calibrating the metering equipment shall be borne by the District if requested more frequently than once every twelve (12) months. The City shall notify the District at least three (3) days prior to any such calibrations, and the District shall have the right to have a representative present during such calibration. A -4- meter registering not more than three percent (3 %) above or below the test result shall be deemed to be accurate. The previous readings of any meter disclosed by test to be inaccurate and the statement of charges for water delivered to or from the District shall be corrected for the three (3) months previous to such test in accordance with the percentage of inaccuracy found by such test. If the meter fails to register for any period, the amount of water furnished during such period shall be deemed to be the amount of water delivered in the corresponding period immediately prior to the failure adjusting for seasonal differences, unless the City and the District shall agree upon a different amount. The metering equipment register shall be read on or about the first day of each month during normal business hours. 2.04. Consumption Record. The City shall keep accurate records of all readings from the meters installed pursuant to Section 2.03 above. These records shall be subject to inspection by the District at reasonable times and places. 2.05. Billing. The District shall be billed, and payments shall be due as required by the City's policies for its other customers. 2.06. Point(s) of Delivery. The initial Point(s) of Delivery will be those Points of Delivery currently in existence on the effective date of this Agreement and which are at the discharge side of the meters installed by the District pursuant to Section 2.03 above on the existing City Water System. Additional Point(s) of Delivery may be constructed at a later date by mutual consent of -5- the parties. Upon passing through the meter at the Point(s) of Delivery, the water becomes the property of the District, its successors and assigns, except for pass - through City water as described in Section 2.03. 2.07. Issuance of District Bonds. The City acknowledges and agrees that any bonds issued by the District may be secured by a pledge of the net revenues from the operation of the District's water system. 2.08. Contracts With Other Customers. The City reserves the right to contract with other persons, natural or corporate, private or public, and to perform services similar to those performed under this Agreement as well as other services; however, to the extent allowed by law, the City shall make no other contract for service to such other persons or entities within the District's boundaries and the City shall make no other contract for service which may impair its ability to deliver the quantity and quality of water to the District which is specified in this Agreement. ARTICLE III OTHER RIGHTS AND OBLIGATIONS OF THE DISTRICT 3.01. Payment of Rate Charge. Upon receipt of the itemized statement of the amount of water determined to be delivered to the District, and the charges therefor, the District shall pay the amount due on or before the due date listed. If the District disputes the amount of water stated to have been consumed or the charges therefor, it shall be entitled to dispute the -6- charges in the manner allowed water customers of the City; however, undisputed charges shall be paid by the due date. 3.02 Resale of Water. The District is expressly authorized to resell the water delivered hereunder to retail customers, who may be residential or commercial users. The District shall not sell or deliver water to any party outside the District's current boundaries without prior approval of the City. ARTICLE IV RESERVED WATER 4.01 No Reservations. The District acknowledges and agrees that it is not reserving a guaranteed supply of water to meet current or future needs. The City has an adequate supply of water to satisfy the reasonable requirement of its current population, other contractual obligations, and the current population of the District. The City will endeavor to obtain a supply of water to meet the future needs of its own citizens, as well as its contractual customers, including the District as set forth in Section 2.01 above. ARTICLE V WATER IMPACT FEES 5.01 Water Impact Fee. For each new connection to its water system, the District agrees to pay any and all water impact fees adopted by the City Council which are applicable to all new connections to the City's water system. The water impact fees shall be adopted in accordance with Chapter 395 of the Texas Local -7- Government Code. The City agrees to notify the District of any proposed action by the City to modify the amount of impact fees adopted by the City from time to time. The District agrees to notify City on a monthly basis of all new connections to the District's water system. The payment of all impact fees shall be due and payable within thirty (30) days of the date of the connections to the system. ARTICLE VI 6.01. The District agrees to comply with the following requirements: 6.01.1. Rates and Fees. District shall not be delinquent in the payment of water charge and fees to the City, provided, the District shall have the right to dispute charges in the normal manner provided for City water customers. 6.01.2. inspection. District shall permit personnel of the City to conduct periodic inspections of the District's system. 6.01.03. Sanitary Control Agreement. District shall permit personnel of the City to enter upon the property of any and all of the District's customers for the purpose of inspecting any and all connections made by such customers to the District's water lines. Should the City have reasonable grounds to believe that any, condition exists which might result in contamination of the City's water supply, or -8- jeopardize the City's certification by the State Department of Health, the City shall notify District and the District shall immediately correct any such condition. 6.01.4. Compliance with Regulations. District shall operate its system in compliance with all applicable regulations of the City, the Texas Department of Health, and the Federal Environmental Protection Agency. 6.01.5. Duality Maintenance. District shall maintain the quality of water beyond the Point of Delivery and provide necessary chlorination or other treatment so as to maintain the quality of water throughout the District's service area, and District agrees to submit samples of such water in accordance with the requirements of the Texas Department of Health. ARTICLE VII TERM OF AGREEMENT The term of this Agreement shall be until March 27, 2025, at which time this Agreement shall expire unless extended by mutual consent. ARTICLE VIII FORCE MAJEURE Neither party shall be liable to the other party or any user of the water service for the failure of either party to perform its -9- obligations herein where the failure results from force majeure. The term "force majeure " ;as employed herein, shall mean acts of God, strikes, lockouts, or other industrial disturbances, acts of public enemy, orders of any kind of the government of the Untied States or the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances, or explosions. It is understood and agreed that the settlement of strikes and lockouts shall be entirely within the discretion of that party and that the requirement that any force majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes and lockouts by acceding to the demands of the opposing party or parties when such settlement is unfavorable in the judgment of such party. ARTICLE IX MISCELLANEOUS PROVISIONS 9.01. Audit Requirements. The District is required by the Texas Water Code to have its accounts and records audited annually by a certified public accountant. The District agrees to instruct such certified public accountant to conduct this audit to audit the District's compliance with its financial duties to the City of Round Rock under this Agreement and to furnish to the City a copy of the completed audit each year. 9.02. Waiver. No failure on the part of either party to this Agreement to require the performance by the other party of any -10- portion of this Agreement shall in any way affect either party's right to enforce such provision, nor shall any waiver by either party be taken or held to be a waiver of any other provisions. No rights under this Agreement may be waived and no modification or amendment to this Agreement may be made except by written amendment executed by the parties. 9.03. Termination. If either party to this Agreement shall default in the performance of any of the terms or conditions of this Agreement, the defaulting party shall have thirty (30) days after delivery to it of written notice of such default within which to cure such default. If the defaulting party fails to cure its default within such period of time, then the non - defaulting party shall have the right without further notice to terminate this Agreement. 9.04. Regulatory Agencies. This Agreement shall be subject to all valid rules, regulations, and laws applicable thereto, passed or promulgated by the United States of America, the State of Texas, or any governmental body or agency having lawful jurisdiction. The District and the City shall comply with all applicable statutes, rules and regulations as may now exist or as may be promulgated by the State of Texas and its administrative agencies and the United States of America and its administrative agencies. 9.05. Headings. All headings in the Contract have been inserted for convenient reference only and shall not in any manner be construed as modifying, amending, or affecting in any way the express terms and provisions hereof. 9.06. Indemnification. The District agrees to indemnify and hold the City harmless from any claims which are made against the City which arise as a result of the District's negligence in the operation of the District's Water System. Likewise, the City agrees to indemnify and hold the District harmless from any claims which are made against the District which may arise as a result of the City's negligence in the operations of the City's Water System. 9.07. Addresses and Notice. Unless otherwise provided in this Agreement, any notice, communication, request, reply, or advice (herein severally and collectively, for convenience, called "Notice ") herein provided or permitted to be given, made or accepted by either party to the other must be in writing and may be given or be served by depositing the same in the United States mail postpaid and registered or certified and addressed to the party to be notified, with return receipt requested, or by delivering the same to an officer of such party, or by prepaid telegram, when appropriate, addressed to the party to be notified. Notice deposited in the mail in the manner hereinabove described shall be conclusively deemed to be effective, unless otherwise stated in this Agreement, from and after the expiration of four (4) days after it is so deposited. Notice given in any other manner shall be effective only if and when received by the party to be notified. For the purpose of Notice, the addresses of the parties shall, until changed as hereinafter provided, be as follows: -12- If to City, to: City of Round Rock 221 East Main Street Round Rock, Texas 78664 Attention: City Manager With copy to: Stephan L. Sheets 309 East Main Street Round Rock, Texas 78664 If to District, to: Fern Bluff Municipal Utility District C/0 Am -Tex Corporation 11855 Research Blvd. Austin, Texas 78759 With copy to: Sharlene N. Collins Strasburger & Price, Armbrust & Brown 2600 One American Center 600 Congress Avenue Austin, Texas 78701 The parties shall have the right from time to time and at any time to change their respective addresses and each shall have the right to specify as its address any other address by at least fifteen (15) days' written notice to the other party. 9.08. Severability. The provisions of this Agreement are severable, and if any provision or part of this Agreement or the application thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such provision or part of this Agreement to other persons or circumstances shall not be affected thereby. 9.09. Modification. This Agreement shall be not subject to change or modification without the express written mutual consent of the governing bodies of each of the parties hereto. -13- 9.10. District Authorization. This Agreement and all of its provisions have been authorized, approved and entered into by the District by virtue of action taken by the Board of Directors pursuant to law and has been executed by its President, and attested by its Secretary, upon and by authority of a resolution passed at meeting of the Board of Directors held on this 12th day of August, 1991. 9.11. City Authorization. This Agreement and all of its provisions have been authorized, approved and entered into by the City by virtue of action taken by the City Council pursuant to law and has been executed by its Mayor, and attested by its Secretary, upon its authority of a resolution pissed at a meeting of the Round Rock City Council held on the Z of Li, iti , 1991. The effective date of this Agreement is q 22, , 1991. ATTEST: ATTEST: 791 -209.3 es D. Brush, II, Secretary THE CITY OF ROUND ROCK, TEXAS 221 East Main Street Round Rock, Texas 78664 By: d'A, A LAND, City Secretary MIKE ROBINSON, Mayor -14- FERN BLUFF MUNICIPAL UTILITY DISTRICT 2600 One American Center 600 Congress Avenue Austin, Texas 78701 DATE: August 20, 1991 SUBJECT: City Council Meeting, August 22, 1991 ITEM: 12.C.Consider a resolution authorizing the Mayor to sign a revised Water Service Agreement with Fern Bluff Municipal Utility District. STAFF RESOURCE PERSON: Steve Sheets and Bob Bennett STAFF RECOMMENDATION: Approval of revised Water Service Agreement For the past several months the City and Fern Bluff MUD have been negotiating the terms of a revised Water Service Agreement. The attached Agreement is the result of these negotiations and is believed to be in the best interests of the City and is fair to both the District and the City. � p 9laA,ie'" t r. RESOLUTION NO. / WHEREAS, the City of Round Rock ( "City ") and Fern Bluff Municipal Utility District ( "District ") have previously entered into that certain Water Supply Agreement, dated March 28, 1985 ( "Prior Agreement "), and WHEREAS, the City and the District desire to amend the Prior Agreement concerning water service from the City to the District, and WHEREAS, a revised Water Supply Agreement Between The City of Round Rock, Texas And Fern Bluff Municipal Utility District ( "Water Supply Agreement ") has been prepared by City staff and approved by the District, and WHEREAS, the Council wishes to approve the Water Supply 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 Water Supply Agreement, a copy of which is attached hereto as Exhibit "A" and incorporated herein for all purposes. RESOLVED this 22nd day of August, 1991. ATTEST: RS08221C LAND, Secretary MIKE ROBINSON, Mayor City of Round Rock, Texas EXHIBIT "A" WATER SUPPLY AGREEMENT BETWEEN THE CITY OF ROUND ROCK, TEXAS AND FERN BLUFF MUNICIPAL UTILITY DISTRICT THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WILLIAMSON § This Water Supply Agreement ( "Agreement ") is made and entered into as of the day of , 1991 by and between the City of Round Rock, Texas ( "City "), a home rule city located in Williamson County, Texas and Fern Bluff Municipal Utility District ( "District "), 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. RECITALS Whereas, the City and the District have previously entered into that certain Water Supply Agreement between the City of Round Rock, Texas and Fern Bluff Municipal Utility District dated March 28, 1985 ( "Prior Agreement "), and Whereas, the City and the District desire to amend those sections of the Prior Agreement concerning water service from the City to the District, and Whereas, the City owns and operates a potable water supply system, and Whereas, the City has a supply of water not contracted to others and available for the District's use, and Whereas, the City desires to and is authorized to provide water service outside its corporate limits, and Whereas, the District the City, and Whereas, the City and desires to purchase water service from the District are authorized to execute this Agreement by §402.014 of the Texas Local Government Code, as amended; Now Therefore, for and in consideration of the premises and mutual obligations and benefits herein contained, the City and the District hereby agree as follows: ARTICLE I DEFINITIONS The terms and expressions used in this Agreement, unless the context indicates otherwise, shall have meanings as follows: 1.01. "Agreement" means this Water Supply Agreement. 1.02. 'Board of Directors" means the Board of the District. 1.03. "Board" and ' Directors of "Point(s) of water passes is owned and Delivery" means the location at which through a master meter and thereafter controlled by the District. 1.04. "Water" means potable water suitable for use domestic and municipal uses and meeting requirements of the Texas Department of Health public consumption. ARTICLE II for the for WATER SERVICES 2.01. Water Service. The City shall deliver and sell water to the District, for commercial and domestic uses, to be supplied from the City's water treatment and distribution system. The City presently has and will maintain an adequate water supply -2- with which to meet the District's current needs. The City will make a reasonable effort to obtain an additional water supply of water to serve the future needs of the District; provided however, that the supply of water to the District may be reasonably limited by the City on the same basis and to the same extent as the supply of water to other customers within the City. The District shall require compliance with City's water conservation ordinances, as amended from time to time. The City shall be the sole source of water to the District and the District shall not seek to develop its own wells, except in the event that the City is no longer able to provide water service as contemplated herein. The quantity of water service delivered by the City shall be measured by master meters at all delivery points. 2,02, Water Rates. The rate to be charged to and paid by the District for water actually delivered pursuant to this Agreement shall be set by ordinance as amended from time to time by the Round Rock City Council. Said rates shall be reasonable as that terms is used in §12.013 of the Texas Water Code and shall be based upon the same general methodology used to determine the rates set forth in this paragraph. The base water rates for the 1991- 1992 fiscal year beginning October 1, 1991 shall be $10.485 per active connection per month within the District. The gallonage rate, shall be $1.76 per 1000 gallons beginning October 1, 1991, may be adjusted from time to time in the same manner and amounts as it is adjusted for in -city customers of the City. -3- 2.03. Metering Equipment. The District, at its sole expense, shall install and maintain at the Point(s) of Delivery the necessary metering equipment and required devices of standard type to measure properly the quantity of water delivered to the District. The City, at its sole expense, shall install and maintain at any point where water passes from facilities owned by the District to other facilities, to be delivered to other customers of the City, the necessary metering equipment and required devices of standard type to measure properly the quantity of water delivered from the District's facilities to such other customers. Thereafter, the District at its cost shall calibrate once every twelve (12) months the metering equipment at the Point(s) of Delivery, provided, however, the cost of calibrating the metering equipment shall be borne by the City if requested more frequently than once every twelve (12) months. The District shall notify the City at least three (3) days prior to any such calibrations and the 'City shall have the right to have a representative present during such calibrations. The City shall at its cost calibrate once every twelve (12) months the metering equipment at the point where water passes from the District's facilities to other customers of the City, provided, however, the cost of calibrating the metering equipment shall be borne by the District if requested more frequently than once every twelve (12) months. The City shall notify the District at least three (3) days prior to any such calibrations, and the District shall have the 1 right to have a representative present during such calibration. A -4- meter registering not more than three percent (3 %) above or below the test result shall be deemed to be accurate. The previous readings of any meter disclosed by test to be inaccurate and the statement of charges for water delivered to or from the District shall be corrected for the three (3) months previous to such test in accordance with the percentage of inaccuracy found by such test. If the meter fails to register for any period, the amount of water furnished during such period shall be deemed to be the amount of water delivered in the corresponding period immediately prior to the failure adjusting for seasonal differences, unless the City and the District shall agree upon a different amount. The metering equipment register shall be read on or about the first day of each month during normal business hours. 2.04. Consumption Record. The City shall keep accurate records of all readings from the meters installed pursuant to Section 2.03 above. These records shall be subject to inspection by the District at reasonable times and places. 2.05. Billing. The District shall be billed, and payments shall be due as required by the City's policies for its other customers. 2.06. Point(s) of Delivery. The initial Point(s) of Delivery will be those Points of Delivery currently in existence on the effective date of this Agreement and which are at the discharge side of the meters installed by the District pursuant to Section 2.03 above on the existing City Water System. Additional Point(s) of Delivery may be constructed at a later date by mutual consent of -5- the parties. Upon passing through the meter at the Point(s) of Delivery, the water becomes the property of the District, its successors and assigns, except for pass - through City water as described in Section 2.03. 2.07. Issuance of District Bonds. The City acknowledges and agrees that any bonds issued by the District may be secured by a pledge of the net revenues from the operation of the District's water system. 2.08. Contracts With Other Customers. The City reserves the right to contract with other persons, natural or corporate, private or public, and to perform services similar to those performed under this Agreement as well as other services; however, to the extent allowed by law, the City shall make no other contract for service to such other persons or entities within the District's boundaries and the City shall make no other contract for service which may impair its ability to deliver the quantity and quality of water to the District which is specified in this Agreement. ARTICLE III OTHER RIGHTS AND OBLIGATIONS OF THE DISTRICT 3.01. Payment of Rate Charge. Upon receipt of the itemized statement of the amount of water determined to be delivered to the District, and the charges therefor, the District shall pay the amount due on or before the due date listed. If the District disputes the amount of water stated to have been consumed or the charges therefor, it shall be entitled to dispute the -6- charges in the manner allowed water customers of the City; however, undisputed charges shall be paid by the due date. 3.02 Resale of Water. The District is expressly authorized to resell the water delivered hereunder to retail customers, who may be residential or commercial users. The District shall not sell or deliver water to any party outside the District's current boundaries without prior approval of the City. ARTICLE IV RESERVED WATER 4.01 No Reservations. The District acknowledges and agrees that it is not reserving a guaranteed supply of water to meet current or future needs. The City has an adequate supply of water to satisfy the reasonable requirement of its current population, other contractual obligations, and the current population of the District. The City will endeavor to obtain a supply of water to meet the future needs of its own citizens, as well as its contractual customers, including the District as set forth in Section 2.01 above. ARTICLE V WATER IMPACT FEES 5.01 Water Impact Fee. For each new connection to its water system, the District agrees to pay any and all water impact fees adopted by the City Council which are applicable to all new connections to the City's water system. The water impact fees shall be adopted in accordance with Chapter 395 of the Texas Local -7- Government Code. The City agrees to notify the District of any proposed action by the City to modify the amount of impact fees adopted by the City from time to time. The District agrees to notify City on a monthly basis of all new connections to the District's water system. The payment of all impact fees shall be due and payable within thirty (30) days of the date of the connections to the system. ARTICLE VI 6.01. The District agrees to comply with the following requirements: 6.01.1. Rates and Fees. District shall not be delinquent in the payment of water charge and fees to the City, provided, the District shall have the right to dispute charges in the normal manner provided for City water customers. 6.01.2. Inspection. District shall permit personnel of the City to conduct periodic inspections of the District's system. 6.01.03. Sanitary Control Agreement. District shall permit personnel of the City to enter upon the property of any and all of the District's customers for the purpose of inspecting any and all connections made by such customers to the District's water lines. Should the City have reasonable grounds to believe that any condition exists which might result in contamination of the City's water supply, or -8- jeopardize the City's certification by the State Department of Health, the City shall notify District and the District shall immediately correct any such condition. 6.01.4. Compliance with Regulations. District shall operate its system in compliance with all applicable regulations of the City, the Texas Department of Health, and the Federal Environmental Protection Agency. 6.01.5. Quality Maintenance. District shall maintain the quality of water beyond the Point of Delivery and provide necessary chlorination or other treatment so as to maintain the quality of water throughout the District's service area, and District agrees to submit samples of such water in accordance with the requirements of the Texas Department of Health. ARTICLE VII TERM OF AGREEMENT The term of this Agreement shall be until March 27, 2025, at which time this Agreement shall expire unless extended by mutual consent. ARTICLE VIII FORCE MAJEURE Neither party shall be liable to the other party or any user of the water service for the failure of either party to perform its -9- obligations herein where the failure results from force majeure. The term "force majeure" as employed herein, shall mean acts of God, strikes, lockouts, or other industrial disturbances, acts of public enemy, orders of any kind of the government of the Untied States or the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances, or explosions. It is understood and agreed that the settlement of strikes and lockouts shall be entirely within the discretion of that party and that the requirement that any force majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes and lockouts by acceding to the demands of the opposing party or parties when such settlement is unfavorable in the judgment of such party. ARTICLE IX MISCELLANEOUS PROVISIONS 9.01. Audit Requirements. The District is required by the Texas Water Code to have its accounts and records audited annually by a certified public accountant. The District agrees to instruct such certified public accountant to conduct this audit to audit the District's compliance with its financial duties to the City of Round Rock under this Agreement and to furnish to the City a copy of the completed audit each year. 9.02. Waiver. No failure on the part of either party to this Agreement to require the performance by the other party of any -10- portion of this Agreement shall in any way affect either party's right to enforce such provision, nor shall any waiver by either party be taken or held to be a waiver of any other provisions. No rights under this Agreement may be waived and no modification or amendment to this Agreement may be made except by written amendment executed by the parties. 9.03. Termination. If either party to this Agreement shall default in the performance of any of the terms or conditions of this Agreement, the defaulting party shall have thirty (30) days after delivery to it of written notice of such default within which to cure such default. If the defaulting party fails to cure its default within such period of time, then the non - defaulting party shall have the right without further notice to terminate this Agreement. 9.04. Regulatory Agencies. This Agreement shall be subject to all valid rules, regulations, and laws applicable thereto, passed or promulgated by the United States of America, the State of Texas, or any governmental body or agency having lawful jurisdiction. The District and the City shall comply with all applicable statutes, rules and regulations as may now exist or as may be promulgated by the State of Texas and its administrative agencies and the United States of America and its administrative agencies. 9.05. Headings. All headings in the Contract have been inserted for convenient reference only and shall not in any manner be construed as modifying, amending, or affecting in any way the express terms and provisions hereof. 9.06. Indemnification. The District agrees to indemnify and hold the City harmless from any claims which are made against the City which arise as a result of the District's negligence in the operation of the District's Water System. Likewise, the City agrees to indemnify and hold the District harmless from any claims which are made against the District which may arise as a result of the City's negligence in the operations of the City's Water System. 9.07. Addresses and Notice. Unless otherwise provided in this Agreement, any notice, communication, request, reply, or advice (herein severally and collectively, for convenience, called "Notice ") herein provided or permitted to be given, made or accepted by either party to the other must be in writing and may be given or be served by depositing the same in the United States mail postpaid and registered or certified and addressed to the party to be notified, with return receipt requested, or by delivering the same to an officer of such party, or by prepaid telegram, when appropriate, addressed to the party to be notified. Notice deposited in the mail in the manner hereinabove described shall be conclusively deemed to be effective, unless otherwise stated in this Agreement, from and after the expiration of four (4) days after it is so deposited. Notice given in any other manner shall be effective only if and when received by the party to be notified. For the purpose of Notice, the addresses of the parties shall, until changed as hereinafter provided, be as follows: -12- If to City, to: City of Round Rock 221 East Main Street Round Rock, Texas 78664 Attention: City Manager With copy to: Stephan L. Sheets 309 East Main Street Round Rock, Texas 78664 If to District, to: Fern Bluff Municipal Utility District c/o Am -Tex Corporation 11855 Research Blvd. Austin, Texas 78759 With copy to: Sharlene N. Collins Strasburger & Price, Armbrust & Brown 2600 One American Center 600 Congress Avenue Austin, Texas 78701 The parties shall have the right from time to time and at any time to change their respective addresses and each shall have the right to specify as its address any other address by at least fifteen (15) days' written notice to the other party. 9.08. Severability. The provisions of this Agreement are severable, and if any provision or part of this Agreement or the application thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such provision or part of this Agreement to other persons or circumstances shall not be affected thereby. 9.09. Modification. This Agreement shall be not subject to change or modification without the express written mutual consent of the governing bodies of each of the parties hereto. -13- 9.10. District Authorization. This Agreement and all of its provisions have been authorized, approved and entered into by the District by virtue of action taken by the Board of Directors pursuant to law and has been executed by its President, and attested by its Secretary, upon and by authority of a resolution passed at meeting of the Board of Directors held on this 12th day of August, 1991. 9.11. City Authorization. This Agreement and all of its provisions have been authorized, approved and entered into by the City by virtue of action taken by the City Council pursuant to law and has been executed by its Mayor, and attested by its Secretary, upon its authority of a resolution passed at a meeting of the Round Rock City Council held on the day of , 1991. The effective date of this Agreement is , 1991. ATTEST: By: JOANNE LAND, City Secretary MIKE ROBINSON, Mayor ATTEST: 79Y- -209.7 es D. Brush, II, Secretary -14- THE CITY OF ROUND ROCK, TEXAS 221 East Main Street Round Rock, Texas 78664 FERN BLUFF MUNICIPAL UTILITY DISTRICT 2600 One American Center 600 Congress Avenue Austin, Texas 78701 III /4 Jean I. Cochran, President 499 -3604 Via Hand Delivery Mr. Steve Sheets Stephen L. Sheets & Associates 309 East Main Round Rock, Texas 78664 Dear Steve: SNC:rp Enclosures L891 -141.3 STRASBURGEB & P13ICE AEMBRUST & BROWN ATTORNEYS AND COUNSELORS NCO 2600 ONE AMERICAN CENTER 600 CONGRESS AVENUE AUSTIN, TEXAS 78701 (512) 499 -3600 TELECOPIER (=12) 498 -3660 August 16, 1991 Re: Fern Bluff Water Rate Agreement Enclosed are five (5) execution copies of the Fern Bluff agreement. They have already been executed by Jean Cochran and James D. Brush, II of the Board. Please let me know if you need anything else. Sincerely, Sharlene N. Collins DALLAS DEPICE CALLAS, TEXAS 75202 WRITER'S DIRECT DIAL NUMBER 499 -3604 Via Telecopv (255 -6676) and Mail Mr. Steve Sheets Mauro, Wendler & Sheets 309 East Main Round Rock, Texas 78664 Dear Steve: STRASBURGER &PRICE ARMBRUST &BROWN A� TOO RNEYS ANO C00000LORS w r xnww rmfC9p ** COOCYro 1 2600 ONE AMERICAN CENTER B00 CONGRESS AVENUE AUSTIN,TEXAS 78701.3286 (512)499.3600 TELECORER(512)499-3660 May 30, 1991 DALLAS OPRCE 000 NCNB 6A * 001 WIN STREET ONUS. TEXAS 7622 121) 61-000 MAY iREGi R MEXICO CRY CORRESPONDENT OON 0L60OWALLOY PoRASIIERI. SC. 660600EUREPoRMAlq ]00. P007 0600 ME%1000F.. 00000 lam1 Re: Wholesale Water Rates to Fern Bluff Municipal Utility District The Board of Directors of Fern Bluff Municipal Utility District met yesterday to discuss the proposal for new wholesale water rates presented by the Round Rock City Manager. The Board requested that we express its thanks for the City's cooperation in this matter. The Board is willing to accept the proposal presented by the City with one modification and several stipulations that were discussed with the City Manager in our meeting on May 21. The Board proposes the following: $9.40 in -city base rate `+ 2.56 overhead allocation - 1.97 billing expense - .52 operating expense - .07 plant in service (storage tank) $9.40 wholesale base rate per customer with $1.70 per 1,000 gallonage rate. These rates are acceptable with the following stipulations: 1. That in the event the City provides billing and operations to the Meadows at Chandler Creek at no cost or the overhead allocation is not paid by Meadows, Fern Bluff base rate would be, lowered accordingly. For example, if Meadows were charged $9.40 base rate, Fern Bluff would be charged $6.84 ($9.40 - $2.56 = $6.84). Mr. Steve Sheets May 30, 1991 Page 2 2. That in the event the raw water reservation fees paid by the City to Brazos River Authority are reduced, Fern Bluff would share in the overall reduction to the base rates. 3. The City Staff has stated that the $2.56 overhead allocation will be reduced over time as costs were recovered through the water rates rather than through taxes. The Board requests that the City agree that the overhead allocation not increase over the current $2.56. If the Round Rock City Council is agreeable to this proposal, we believe that we can finalize an agreement with the City very quickly. Please let me know as soon as possible whether this proposal will be recommended to the City Council, and, if so, when the Council would take action. We appreciate your help in this matter. SNC:rp cc: Board of Directors David Gray Jim Jansen Gary Spoonts L591 - 176.3 Sincerely, Sharlene N. Collins E V7s1STEAD April 15, 2008 VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED City of Round Rock 221 E. Main Street Round Rock, Texas 78664 Attn: City Manager Austin 1 Dallas 1 Fort Worth 1 Houston 1 San Antonio 1 The Woodlands 1 Washington, D.C. 401 Congress Avenue Suite 2100 Austin, Texas 78701 512.370.2800 OFFICE 512.370.2850 FAx winstead.com RECEIVED APR 1 2008 Re: Fern Bluff Municipal Utility District's (the "District ") request for change of address for notices given under the Water Supply Agreement Between the City of Round Rock, Texas and Fern Bluff Municipal Utility District, dated August 22, 1991 (the "Agreement ") Dear City Manager: This letter is sent by the District pursuant to Section 9.07 of the Agreement. All notices henceforth given to the District shall be given to the following addresses: Fern Bluff Municipal Utility District c/o Southwest Water Company 9511 RR 620 N Austin, TX 78726 With a copy to: Phil Haag Winstead PC 401 Congress Ave. Suite 2100 Austin, TX 78701 Please contact me using the information below if you have any questions or comments regarding the information in this letter. Scott Rhodes direct dial: (512) 370 -2811 srhodes @winstead.com WINSTEADFC 1 ATTORNEYS City Manager April 15, 2008 Page 2 cc: Stephan Sheets, Attorney for City of Round Rock (via email and certified mail) Janey Miller, Fem Bluff Municipal Utility District — President (via email) Austin 1\529791 \1 45898 - 14/1512008 L I 401 Congress Avenue Suite 2100 Austin, Texas 78701 WINSTEAD PC 1 ATTORNEYS CERTIFIED Al 4 f i 111 V 1 •D 'uol8uiyseM I spuelPooM a41 i 7 &664#5299 CO01 1111 7002 2030 0000 4215 7016 PLACES,ICKEN ATTOP OF ENVELOPE TOM. IOONT • THEPEfOPN ADDRESS, FOLD AT DOTTED LINE City of Round Rock 221 E. Main Street Round Rock, Texas 78664 Attn: City Manager 1 oiuoluy ueg 1 uolsnoH 1 41JoM tro II, TIiI,, J„ JJ,T TJ1, T, li, JT J, i „Ilil l,Il,lT #ITITIT11,li „11T11 1 unsnv 049J82031973 $ 05210 04/15/2008 Maned From 78701 US POSTAGE