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R-94-02-10-9B - 2/10/1994ATTEST: KSIRPSOLUTION RS02104B RESOLUTION NO. ! ? - ` 7 7 " 0-/10 9/3 WHEREAS, by Resolution No. 94- 01- 13 -9B, adopted by the Council on January 13, 1994, the Mayor was authorized to execute on behalf of the City a Lease Purchase Agreement with Round Rock Water Supply Corporation ( "RRWSC "), and WHEREAS, First Madison Corp., a creditor and holder of a lien against the assets of RRWSC, has not yet granted its consent to RRWSC to execute said Lease Purchase Agreement, and WHEREAS, pending First Madison Corp.'s consent to the Lease Purchase Agreement, the City and RRWSC desire to enter into an Interim Operating Agreement, Now Therefore, BE IT RESOLVED BY THE CITY COUNCIL OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City an Interim Operating Agreement with Round Rock Water Supply Corporation, a copy of said Agreement being attached hereto and incorporated herein for all purposes. RESOLVED this 10th day of February, 1994. LAND, City Secretary CHARLES CULPD Mayor City of Round Rock, Texas INTERIM OPERATING AGREEMENT This Interim Operating Agreement, hereinafter referred to as "Agreement," is entered into by and between the Round Rock Water Supply Corporation, acting by and through its duly authorized president, John T. Jones, Jr. having address for notice at 500 West Sixteenth Street, Austin, Texas 78701, hereinafter referred to as RRWSC, and the City of Round Rock, acting by and through its mayor, Charles Culpepper, having address for notice at 221 East Main Street, Round Rock, Texas 78664, hereinafter referred to as City, and which Agreement recites as follows: PRELIMINARY STATEMENT Whereas, RRWSC owes First Madison Bank, FSB, hereinafter referred to as Lender; and, Whereas, RRWSC and City have tenatively agreed to entered into a Lease Purchase Agreement, which Agreement has been approved by both parties, but not executed by either of the parties; and, Whereas, the parties desire to secure the prior written consent of the Lender before executing said Lease Purchase Agreement; and, Whereas, the parties desire to enter into a interim operating agreement, for the operation of the water and sewer systems to allow the RRWSC time to secure said Lender consent; and, Whereas, RRWSC is the owner of the water and sewer systems for Oak BluffEstates and Oak Bluff Estates Phase 2, two subdivisions in Williamson County, Texas, according to the maps or plats thereof as recorded in Cabinet "F ", Slide 125 -127, and Cabinet "F ", Slide 253 -259 of the Plat Records of Williamson County, Texas, as well as, a fourteen (14) acre tract of land situated north of County Road 123 and south of Brushy Creek as more fully described by the field notes attached hereto as Exhibit "A" ( "Service Area"); and in connection therewith holds the "Certificate of Convenience for Water - Certificate No. 11985" and "Certificate of Convenience for Sewer - Certificate No. 20652" for providing retail water and sewer services to the above described service area and, Whereas, the primary purpose of RRWSC is to provide its members with a dependable and safe supply of drinking water of the highest quality at the most economical cost; and, Whereas, RRWSC is required by the State of Texas under the rules and regulations of the Texas Natural Resources and Conservation Commission ( "TNRCC ") to have a alternate source 1 of water when it reaches 250 residential connections to its water system; and, Whereas, the City is willing to provide such alternate source of water subject to the terms and conditions of this Agreement; and, Whereas, the City by entering into this Agreement assumes the obligations for the "period of this Agreement" the day to day operations, including, but not limited to any and all expenses, repairs, etc., as well as, any and all capital improvements that may be needed to adequately service the residents of the above described service area; and, Whereas, RRWSC and City desire to enter into this "Agreement," NOW, THEREFORE, for and in consideration of Ten And No /100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the respective parties, the parties agree as follows: Article I Intent of the Parties It is the intent of the parties for the City to operate RRWSC water and sewer facilities while RRWSC attempts to secure the prior written consent of Lender to approve the Lease Purchase Agreement by and between the City and RRWSC. This Agreement will be for a term of 120 days beginning January 14, 1994 and will terminate on RRWSC securing said written consent of Lender, or on May 14, 1994, whichever will come first, unless extended by mutual consent of both parties hereto. During such "operating period" the City will operate and maintain said water and sewer systems in return for the revenues from the system. City will operate the system in accordance with the standards of the State of Texas and the United States of America, and it will keep the system in good repair, more fully described below. Article II Filing of This Agreement With The Texas Natural Resource and Conservation Commission If applicable, it will be the responsibility of the City to file a copy of this Agreement with the TNRCC pursuant to Tex. Water Code Ann. 13.255. 2 Article III Operations and Maintainence 3.01 As Is Condition: City hereby agrees to operate and maintain the water and sewer systems belonging to RRWSC. City accepts said systems in their present condition "as is and with all faults and without any warranty or representation" on the part of RRWSC. It is expressly agreed and understood that RRWSC owns Lot 29, Block A, Oak Bluff Estates upon which its well, well house and storage facilities are located and this Agreement grants to City the right to use said facilities situated thereon. 3.02 Agreements and Obligations of City: The City agrees and obligates itself to the following: A. Operating Costs. Repairs. and Capital Improvements: City, at its sole cost and expense, will pay all operating costs, costs of repairs, and any and all capital improvements less than $1,000.00 during the term of this Agreement or any extensions thereof. Capital improvements for the purposes of this agreement are defined as pumps and motors used within the water and sewer.- systems. Cry will pay or reimburse the prorata payment of real estate taxes and insurance costs on Lot 29, until this Agreement terminates. RRWSC will not pay and will not be obligated to pay for any operations costs, repairs, and/or capital improvements other than as expressly stated herein. RRWSC will be obligated for any sums in excess of $1,000.00 for pumps and/or motors and such obligation will be satisfied as follows. With respect to the replacement of capital improvements, the City will replace such capital improvements during the term of this Agreement at their expense. The City will notify RRWSC in writing of the costs of any such expenditure, and RRWSC will set aside a cash reserve for the payment of said capital improvement. In the event the Lease Purchase Agreement is not consented to by First Madison within the term of this Agreement or any mutual extension thereof, RRWSC will pay said cash reserve to City upon termination of this Agreement. If said Lease Purchase Agreement is consented to by First Madison, RRWSC will be relieved of any obligation for the payment of said capital improvements and the City will bear all of said costs. After this Agreement terminates, the obligation for the payment of real estate taxes and insurance will be the sole responsibility of RRWSC. 3 B. Alternate Source of Water: If at any time the water distribution system is inadequate to satisfy the needs of the Service Area, the City agrees to furnish water to the service area through the "Manville WSC Interconnect" located at the intersection of Gattis School Road and County Road 122. In addition, the City has contracted with Randy Morine Heritage Properties, Inc. ("Morine") whereby Morine has agreed to construct a water line connecting the City's water system directly to the RRWSC facilities. The contract with Morine calls for it to complete the construction of the water line on or before June 22, 1994. the City agrees to exercise all due diligence to assure that the water line is completed by that date. The water line will be of sufficient size and capacity to service the Service Area. RRWSC will not be responsible for any of the costs of the construction of the water line. C. Storage Tank Rental: It is agreed and understood that RRWSC is currently renting a 31,000 gallon storage tank from T & L Properties. The rent is paid through February 28, 1994. Thereafter the rent is Five Hundred And No /100 Dollars ($500.00) per month, payable in advance, beginning March 1, 1994. City will be responsible for the payment of said monthly rental. With the prior written consent of RRWSC, the City may terminate this rental agreement at any time by giving 30 days written notice to T & L Properties. T & L Properties has ninety (90) days after receipt of such written notice in which to remove said tank at its sole costs and expense. D. Use of RRWSC Facilities: During the term and any extension of this Agreement, the City shall be entitled to the exclusive use and possession of RRWSC facilities for any lawful purpose which is in compliance with the rules and regulations of the State of Texas and the TNRCC and the Certificates of Convenience and Necessity for Water and Sewer as shown above. The City will be entitled to receive any and all income from the operation of Lease Premises, except as herein specified. E. Collections of Capital Recovery Fee for RRWSC: City agrees from and after January 1, 1994 to collect RRWSC's Capital Recovery Fee for each new connection to the system within RRWSC's service area and to remit same no later than the 15th of the month following in which it was collected. Until further written notice, the amount to be collected by the City for RRWSC's Capital Recovery Fee is Six Hundred Fifty And No /100 Dollars ($650.00) per connection. F. Indemnity of RRWSC by City: City agrees to indemnify the RRWSC from and 4 against any and all claims or expenses caused by City's activities in connection with this Agreement or the property of RRWSC. G. Treatment of Delinquent Accounts Due RRWSC: City agrees that the nonpayment by RRWSC's members of any sums due RRWSC for either monthly utilities or capital recovery fees will be treated as the nonpayment of utilities owed to the City. Upon written notice by RRWSC that a member (resident) has failed to pay any sums due to the RRWSC, City will declare such resident's account to be delinquent and subject to the City's normal policy for failure to make such payment. H. Further Encumbrances: City shall not further encumber all or any portion of the facilities of RRWSC without the prior written consent of RRWSC, which consent will not be unreasonably withheld. I. Membership Application and Information: City agrees to have all persons and/or entities making new connections within the RRW SC's service area and all transfers of service within said service area execute a application for service and membership, which among other things will state that the person or entity agrees to abide by and be subject to the rules and regulations of the RRWSC. City agrees to not connect any new services or allow the transfer of any existing services without first securing such written application for service and membership. J. Utility Rates and Other City Fees: City agrees to provide water and sewer services to the residents ofRRWSC service area at the same rates and fees as charged by the City to citizens of the City of Round Rock ( "in city rate "). The City agrees not to charge any assessments or surcharges to the members of the RRWSC which are not charged system wide. K. Repairs and Maintenance: City agrees to keep RRWSC facilities in good repair and in compliance with all rules and regulations relating to said facilities by any governmental entity having jurisdiction over the City or the facilities, as the case may be. 3.05 Obligations ofRRWSC: RRWSC agrees and obligates itself to the following: A. No further encumbrances: RRWSC agrees not to further encumber the Lease Premises in any manner without the prior written consent of the City. B. Collection of City Capital Recovery Fee for Water. RRWSC agrees from and after 255 residential connections and until December 31, 1993 to collect for the City its "Capital Recovery Fee for Water" in the amount of $1,345.00 per connection. RRWSC agrees to remit any funds so 5 collected on or before January 15, 1994. C. Delivery of As Built Plans ": RRWSC agrees to deliver to City all "as built plans" and other information related to the location of water and sewer utilities that its has in its possession. D. Delivery of Membership List and Account Information: RRWSC agrees to deliver to City a complete list of member (residents) together with such past account information that the City may establish sewer rates for the year 1994, and such other information as the City might reasonably request. 3.06 Notice of Default and Right to Cure Default: Should either party ever default in any of its obligations under the lease, then the non - defaulting party shall notify the defaulting party in writing specifying the exact nature of such default. Non - defaulting party shall deliver same to the defaulting party by depositing said notice in the U. S. Mails, postage prepaid and mailed Certified Mail, Return Receipt Requested. The defaulting party shall have 30 days from receipt of written notice in which to cure any default specified in said notice before the non - defaulting party shall have the right to institute any legal proceedings for the enforcement of this Agreement. 3.07 Termination of Agreement: This Agreement will terminate at the end of the term or upon securing the prior written consent of First Madison FSB to the Lease Purchase Agreement as provided for above. Article IV Transfer of Systems and Proration of Income and Expenses 4.01 Effective Date of Transfer: The City agrees to takeover the operation of the system effective January 14, 1994. 4.02 Final Meter Reading and Account Information: The City and RRWSC will jointly read all meters as of January 14, 1994. RRWSC will provide the City with whatever account information the City needs in order for the City to establish the sewer rates for 1994 for each of the residents. 4.03 Proration of Income and Expenses: The parties agree that the income and expenses will be prorated as of January 14, 1994. The January receipts (from January 1, 1994 to January 14, 1994, the final billings) will be billed by RRWSC and will belong to RRWSC. RRWSC agrees to pay the electricity bill to Texas 6 Utilities through January 14, 1994. All water and sewer usage accruing after January 14, 1994 will belong to the City. 4.04 Mutual Cooperation During Transition Period: The parties agree to cooperate with each other during the transition period to make said transition as smooth as possible, and in this respect the parties agree to jointly read meters, and to otherwise share information about accounts, location of utilities, etc. 4.05 Management Fee Due T & L Properties: RRWSC and City agree to share equally the management fees due to T & L Properties in the amount of $3,780.00 for the months of February and March of 1994. In consideration of said fee, T & L Properties has agreed to be available to the City during said months in order to affect a smooth and orderly transition of the operations from RRWSC to the City. Article V Miscellaneous Provisions 5.01 Force Majeure. In case by reason of "Force Majeure" either party hereto shall be rendered unable wholly or in part to carry out its obligations under this Agreement, and if such party shall give notice and full particulars of such "Force Majeure" in writing to the other party within a reasonable time after occurrence of the event or cause relied on, the obligation of the party giving such notice, so far as it is affected by such Force Majeure, shall be suspended during the continuance of the inability then claimed, but for no longer period, and any such party shall endeavor to remove or overcome such inability with all reasonable dispatch. The term "Force Majeure" as employed herein, shall mean acts of God, strikes, lockouts or other industrial disturbances, acts of public enemy, orders of any kind of the United States or the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances, explosions, breakage or accidents to machinery, pipelines or canals, partial or entire failure of water supply and inability on the part of the City to provide water necessary for operation of its Wastewater system hereunder or of the City to receive Wastewater on account of any other causes not reasonably within the control of the party claiming such inability. It is understood and agreed that the settlement of 7 strikes and lockouts shall be entirely within the discretion of the party having the difficulty and that the above requirement that any Force Majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes and lockouts by acceding to the demands of the opposing party or parties when such settlement is unfavorable in the judgment of the party having the difficulty. 5.02 Regulatory Bodies. The Agreement shall be subject to all valid rules, regulations, laws, permits, orders, and ordinances applicable hereto passed or promulgated by the United States of America, the State of Texas, or any governmental body or agency having lawful jurisdiction over the parties to this Agreement or over the transaction contemplated by this Agreement, or any authorized representative or agency of any of them. 5.03 Governmental Regulations. In each instance herein where reference is made to a federal, State, County, or municipal regulation, it is the intention of the parties that at any given time the then current edition of any such federal, State, County, or municipal regulation shall apply. 5.04 No Additional Waiver Implied. No waiver or waivers of any breach or default (or any breaches or defaults) by either party hereto of any term, covenant, condition, or liability hereunder, or of performance by the other party of any duty or obligation hereunder, shall be deemed or construed to be a waiver of subsequent breaches of defaults of any kind, under any circumstances. 5.05 Addresses and Notice. Unless otherwise provided in this Agreement, any notice, communication, request, reply, or advice (herein severally and collectively, for convenience, called "Notice ") herein provided or permitted to be given, made or accepted by either party to the other must be in writing and may be given or be served by depositing the same in the United States mail postpaid and registered or certified and addressed to the party to be notified, with return receipt requested, or by delivering the same to an officer of such party, or by prepaid telegram, when appropriate, addressed to the party to be notified. Notice deposited in the mail in the manner hereinabove described shall be conclusively deemed to be effective, unless otherwise stated in this Agreement, from and after the expiration of four (4) days after it is so deposited. Notice given in any other manner shall be effective only if and when received by the party to be notified. For the purpose of Notice, the addresses of the parties shall, until changed hereinafter provided, be as follows: If to City, to: City of Round Rock 221 East Main Street 8 Round Rock, Texas 78664 Attention: City Manager If to RRWSC to: Round Rock Water Supply Corporation 500 West Sixteenth Street Austin, Texas 78701 Attention: John T. Jones, Jr. The parties shall have the right from time to time and at any time to change their respective addresses and each shall have the right to specify as its address any other address by at least fifteen (15) days written notice to the other party. 5.06 Interpretations. Unless the context require otherwise, words of the masculine gender shall be construed to include correlative words of feminine and neuter genders and vice -versa and words of the singular number shall be construed to include correlative words of the plural number and vice - versa. This Agreement and all the terms and provisions hereof shall be liberally construed to effectuate the purposes set forth herein•and to sustain the validity of this Agreement. Nothing in this Agreement shall be construed to permit a violation of any State or Federal statutory provision or any provisions of the State or Federal constitutions, and all acts done pursuant to this Agreement shall be performed in such manner as to conform thereto whether expressly provided or not. Where any procedure hereunder may be held by a court of competent jurisdiction to be violative of any State or Federal statutory or constitutional provision, the parties shall have the power to adopt and promulgate reasonable and necessary alternative procedures which will conform thereto and the parties agree that they would have entered into this Agreement notwithstanding the invalidity of any provision or provisions hereof. 5.07 Modification. This Agreement shall be subject to change or modification only with the mutual written consent of the parties. 5.08 Assignability. This Agreement shall not be assignable by either party without the prior written consent of the other party. 5.09 Severability. The provisions of this Agreement are severable, and if any provision or 9 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. 5.10 Merger. This Agreement constitutes the entire agreement between the parties relative to the subject matter thereof. There have been and are no agreements, covenants, representations or warranties between the parties other than those expressly stated herein or expressly provided herein. 5.11 Approval of Consent. Whenever this Agreement requires or permits approval or consent to be hereafter given by any party, the parties agree that, unless the context clearly shows otherwise, such approval or consent shall not be unreasonably withheld. Such approval or consent may be evidenced by an order or resolution adopted by City or by an appropriate certificate executed by a person, firm or entity authorized to determine and give approval or consent on behalf of RRWSC pursuant to an order or resolution adopted by the governing body or board of directors thereof. Such approval or consent of the parties shall be required as a condition to any action except as expressly required in this Agreement. 5.12 Parties in Interest. This Agreement shall be for the sole and exclusive benefit of the parties hereto and shall not be construed to confer any tights upon any third party. Nothing herein shall be construed to confer standing to sue upon any third who did not otherwise have such standing. 5.13 Captions. The captions appearing at the first of each numbered section or paragraph in this Agreement are inserted and included solely for convenience and shall never be considered or given any effect in construing this Agreement, or any provisions hereof, or in connection with the duties, obligations, or liabilities of the respective parties hereto or in ascertaining intent, if any question of intent should arise. 5.14 Notice of Default. If any party believes that any other party has violated this Agreement, then such complaining party shall give to the alleged defaulting party written notice within ten (10) days after discovery of the alleged violation. The notice shall set out the nature of the alleged violation and the action proposed by the complaining party to remedy the alleged violation. If the alleged defaulting party has not cured or otherwise resolved such alleged violation within thirty 10 (30) days after receipt of the violation notice, then the complaining party shall have recourse to the remedies available herein or which are available by applicable law. Except as otherwise provided by this Agreement, failure by either party to immediately discover and give notice of an alleged violation to the other party shall not constitute a waiver by either party of the alleged violation should such alleged violation be proven from its inception. 5.15 Venue. All amounts due under this Agreement, including, but not limited to, payments due under this Agreement or damages for the breach of this Agreement, shall be paid and be due in Williamson County, Texas, which is the county in which the principal administrative offices of the parties are located. It is specifically agreed among the parties to this Agreement that Williamson County, Texas, is the place of performance of this Agreement, and in the event that any judicial proceeding is brought to enforce this Agreement or any provision hereof, the same shall be brought in Williamson County, Texas. 5.16 No Recourse. No recourse shall be had against any elected official, director, officer, attorney, agent, or employee of either the City or RRWSC, whether in office as of or subsequent to, the effective date of this Agreement, for any claim based upon this Agreement. 5.17 Time of Essence. Time is of the essence of this Agreement. 5.18 Remedies Upon Default. This Agreement shall not be considered as specifying an exclusive remedy for any default, but all such other remedies (other than termination) existing at law or in equity may be availed of by any party hereto and shall be cumulative. Recognizing however, that the City's undertaking to provide Retail Water and Wastewater services to the members of RRWSC within its service are is an obligation, failure in the performance of which cannot be adequately compensated in money damages alone, the City agrees, in the event of any default on its part, that RRWSC shall have available to it the equitable remedies of mandamus or specific performance, or both, in addition to any other legal or equitable remedies (other than termination) which may also be available. Recognizing that failure in the performance of any of RRWCS's obligations hereunder could not be adequately compensated in money damages alone, RRWSC agrees in the event of any default on its part that the City shall have available to it the equitable remedy of mandamus or specific performance, or both, in addition to any other legal or equitable remedies (other than termination) which may also be available to the City. Any right or remedy or any default 11 hereunder, shall be deemed to be conclusively waived unless asserted by a proper proceeding at law or in equity within two (2) years plus one (1) day after the occurrence of such default. E ective as of the 14th day of January, 1994. By its mayor, Char 1 . epper un•A Water Supply Corporation: demo T` 'nes, Jr., President 12 DATE: February 8, 1994 SUBJECT: City Council Meeting, February 10, 1994 ITEM: 9.B. Consider an update on status of lease agreement with Round Rock Water Supply Corporation and /or a resolution authorizing the Mayor to execute an Interim Operating Agreement with Round Rock Water Supply Corporation. STAFF RESOURCE PERSON: Steve Sheets STAFF RECOMMENDATION: On January 13, the Council authorized the Mayor to execute a Lease Purchase Agreement with Round Rock Water Supply Corporation. Subsequent to the Council's action and prior to RRWSC executing the Agreement, First Madison Corp. notified RRWSC that it had objections to the Agreement. RRWSC and First Madision are currently negotiating a compromise that would allow RRWSC to sign the Lease Purchase Agreement. Pending the conclusion of those negotiations, it is necessary for the City and RRWSC to execute an interim agreement so that the City can continue to operate the RRWSC's system. That is the purpose of this resolution and Interim Operating Agreement. Staff recommends approval.