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R-94-03-24-13G - 1/24/1994and WHEREAS, Round Rock is desirous of contracting with BCMUD to provide temporary wholesale wastewater service to the North Area only subject to certain terms and conditions; and WHEREAS, Round Rock and BCMUD are desirous of setting forth in a written agreement the terms and conditions to govern the WHEREAS, Brushy Creek Municipal Utility District ( "BCMUD ") has pending before the Texas Natural Resource Conservation Commission ( "TNRCC ") an application to renew permit number 11866 -01 to allow the continued discharge of treated domestic sewage effluent to the Onion Branch of Brushy Creek; and WHEREAS, Round Rock has protested the granting of said application to renew the permit; and WHEREAS, Round Rock and BCMUD wish to settle their differences by Round Rock withdrawing its protest to BCMUD's application in consideration for BCMUD seeking a permanent alternative source of wastewater treatment or moving its discharge point off of the recharge zone of the Edwards Aquifer; and WHEREAS, BCMUD has requested that Round Rock provide temporary wastewater service to BCMUD on a wholesale basis only for the northern portion of the district that lies within Round Rock's Extraterritorial Jurisdiction and Service Area that is currently provided with wastewater service from a package wastewater treatment plant owned and operated by the BCMUD ( "the North Area "); KS/RESOLUTION R3032440 RESOLUTION NO. R' ! 7 - DJ- a 4-13C-, provision of such temporary wholesale wastewater service to the North Area of BCMUD, Now Therefore BEEN RESOLVED BY THE CITY COUNCIL OF THE CITY OF ROUND ROCK, TEXAS That the Mayor is hereby authorized and directed to execute on behalf of the City an Agreement for Temporary Wholesale Wastewater Service Between City of Round Rock and Brushy Creek Municipal Utility District, a copy of said Agreement being attached hereto and incorporated herein for all purposes. RESOLVED this 24th day of March, 1994. ATTEST: NE LAND, City Secretary 2. CHARLES CULPEISPER' Mayor City of Round Rock, Texas THE STATE OF TEXAS COUNTY OF WILLIAMSON § § s § AGREEMENT FOR TEMPORARY WHOLESALE WASTEWATER SERVICE BETWEEN CITY OF ROUND ROCK AND BRUSHY CREEK MUNICIPAL UTILITY DISTRICT THIS AGREEMENT is made and entered into by and between the City of Round Rock, Texas, a Texas municipal corporation ( "Round Rock ") and Brushy Creek Municipal Utility District, a municipal utility district created and operating pursuant to Article 16, Section 59 of the Texas Constitution and Chapter 54, Texas Water Code ( "Customer "). WHEREAS, Customer has pending before the Texas Natural Resource Conservation Commission ( "TNRCC ") an application to renew permit number 11866 -01 to allow the continued discharge of treated domestic sewage effluent to the Onion Branch of Brushy Creek; and WHEREAS, Round Rock has protested the granting of said application to renew the permit; and WHEREAS, Round Rock and Customer wish to settle their differences by Round Rock withdrawing its protest to Customer's application in consideration for Customer seeking a permanent alternative source of wastewater treatment or moving its discharge point off of the recharge zone of the Edwards Aquifer, and WHEREAS, Customer has requested that the City provide temporary wastewater service to Customer on a wholesale basis only for the northern portion of the Customer district that lies within Round Rock's Extraterritorial Jurisdiction and Service Area ( "the North Area ") that is currently provided with wastewater service from a package wastewater treatment plant owned and operated by the Customer ( "the North Plant "); and WHEREAS, Round Rock is desirous of contracting with Customer to provide temporary wholesale wastewater service to the North Area only subject to certain terms and conditions; and WHEREAS, Round Rock and Customer are desirous of setting forth in a written agreement the terms and conditions to govern the provision of such temporary wholesale wastewater service to the North Area of the Customer district; and NOW, THEREFORE, in consideration of the terms, conditions and covenants herein contained, Round Rock and Customer hereby agree as follows: 1.0 DEFINITIONS W I T N E S S E T H: 1.1 "Customer System" means the facilities of Customer for collection and transportation of wastewater to the point of entry. 1.2 "Delivery Facilities" means all facilities (lines, mains, valves, manholes, etc.) necessary for Customer's collection and transmission of wastewater to the Round Rock system. The term includes facilities which are on the Customer side of the connecting facility which are constructed specifically to allow Round Rock to serve Customer. 1.3 "Director" means the Director of the City of Round Rock Public Works Department or his authorized designee. 1.4 "Drainage water" means stormwater or floodwater. 1.5 "Incompatible wastes" means substances not amenable to wastewater treatment processes that will damage or interfere with the operation of a publicly owned treatment works ( "POTW ") or any portion of the Round Rock System, including interference with the use or disposal of municipal sludge as well as pollutants that will pass through the treatment works unchanged by the treatment processes. 1.6 "Infiltration" means water that has migrated from the ground into the wastewater system. 1.7 "Interference" means an inhibition or disruption of Round Rock's system, treatment processes, or operations that cause or contribute to a violation of any requirement of Round Rock's Federal effluent discharge permit. 1.8 "North Area" means that portion of the Brushy Creek Municipal Utility District north of Brushy Creek currently located in Round Rock's Extraterritorial Jurisdiction and Service Area. 1.9 "Point of Entry" shall be defined as the connecting facility at which wastewater passes from the Customer system into Round Rock's system. 1.10 "Prohibited Waste" means substances that are prohibited from being discharged into Round Rock's System and Customer's System except in accordance with Section 10.400 of the Round Rock City Code, as amended. 1.11 "Round Rock's System" or "Round Rock system" means the wastewater collection and treatment system of the City of Round Rock whether wholly owned by Round Rock or by and through Round Rock's participation interest in one or more contracts for the provision of regional wastewater service. 2. 1.12 "Service Area" means Round Rock's Impact Fee Service Area /Utility Service Area. 1.13 "Sewage" means water borne human excreta and gray water. 1.14 "State Rules" means Texas Department of Health Wastewater Surveillance and Technology Rules, Chapter 301, Design Criteria for Sewerage Systems. 1.15 "Waste and /or Wastewater" means liquid or water borne waste, including, without limitation, sewage, industrial waste or other wastes, whether separate or commingled. 2.0 PROVISION OF WHOLESALE WASTEWATER SERVICE 2.1 Level of Wholesale Service. Subject to the terms and conditions stated herein and the requirements of applicable law, Round Rock agrees to provide temporary wholesale wastewater service for the North Area of the Customer district only and to accept and treat all wastewater delivered by the Customer from the North Area to the point of entry approved as set forth hereinbelow; provided, however, that temporary wholesale wastewater service provided by Round Rock to the North Area under this Agreement shall not exceed 100,000 gallons per day on a thirty -day average basis without the prior written consent of Round Rock. Any increase in the maximum level of wholesale service hereunder shall require a written amendment of this Agreement duly authorized by the governing bodies of Round Rock and Customer executed by the authorized representatives of Round Rock and the Customer. 2.2 Retail Billing and Collection. Customer agrees that it shall be solely responsible for retail billings to its customers and for all retail collections thereon. 2.3 Retail Service Commitments. Customer shall be solely responsible for the performance of any and all retail service contracts or commitments made by and between Customer and its retail customers within or outside of the District whether before or after the effective date of this Agreement and Round Rock shall have no liability or obligation for the performance of same nor shall any third person with whom Customer contracts for retail service be considered a third party beneficiary of this Agreement. 2.4 Expansion of Customer Service Area. This contract is for a specific level of temporary wholesale wastewater service for the North Area of the Customer district only. Expansion of the Customer service area by annexation or the addition of out -of- district service areas following the date of execution hereof shall be subject to the prior written consent of Round Rock. Round Rock reserves the right to deny for any reason any or all requests by the Customer to expand the level or 3 . geographic scope of the wholesale wastewater service provided under this Agreement. 2.5 Contingencies for Commencement of Wholesale Wastewater Service. Round Rock and Customer agree that, in addition to the terms and conditions otherwise set forth in this Agreement, the commencement of wholesale wastewater service to the North Area shall be subject to the following conditions precedent: a) construction by the Customer and final inspection and approval by Round Rock of all delivery, and connecting facilities required to be constructed by the Customer hereunder as well as acquisition of all easements required for lawful construction, installation, operation and maintenance of same; and b) written authorization from the Director acknowledging that all contingencies, conditions and requirements for connection to the Round Rock system and commencement of temporary wholesale wastewater service have been satisfied and that wholesale service to the North Area may commence. 2.6 Curtailment of Service. Customer agrees that if wastewater service is curtailed within Round Rock or to other Customers of the Round Rock system, Round Rock may impose' a like curtailment on wholesale wastewater service delivered to the Customer hereunder provided, however, that Round Rock shall impose such curtailment in an equitable and nondiscriminatory fashion. Nothing herein shall be construed to prohibit Round Rock from curtailing service completely in the event of a maintenance operation or emergency for a reasonable period necessary to respond and complete such maintenance operation or effect emergency repairs. 2.8 Cooperation During Maintenance or Emergency. Customer shall cooperate with Round Rock during periods of emergency or required maintenance and, if necessary, shall discontinue, cycle, test, inspect, or otherwise operate and maintain its lift stations or other equipment at its expense in a manner determined by the Director to be necessary to the safe and efficient completion of repairs or the replacement of facilities, the restoration of service, and the protection of the public health, safety, and welfare. 3.0 CONSTRUCTION AND DESIGN OF FACILITIES 3.1 Point of Entry. Subject to the terms and conditions stated herein, Round Rock agrees to accept and treat wastewater delivered from Customer to the point of entry. 3.2 Construction of Delivery, Other Facilities. Customer agrees to design and construct, at its sole expense: 4. a) all delivery and connecting facilities necessary to the provision of wholesale wastewater service hereunder; and b) all pretreatment or other facilities required by applicable federal, state or local law. 3.3 Approval of Plans. All plans and specifications for delivery, or other facilities to be constructed by Customer shall be subject to review and approval of the Director prior to commencement of construction thereof. 3.4 Standards for Review of Plans. Plans and specifications required to be submitted to the Director for prior review and approval are required to conform to Round Rock's standard specifications and applicable federal, state and local laws, ordinances, and regulations in effect at the time of such submission or resubmission. 3.5 Costs of Delivery, Other Facilities. Except as otherwise set forth in this Agreement or otherwise specifically agreed in writing by Round Rock and Customer, Customer shall be responsible for and shall pay all costs for rights -of -way, design, engineering, contracting, construction and inspection of delivery, and other facilities required to be constructed for the provision of wholesale wastewater service hereunder. 3.6 Inspection and Acceptance of Facilities. Acceptance of completed delivery, or other facilities required to be constructed hereunder is subject to final inspection and performance testing by Round Rock, payment of applicable inspection fees by Customer, and issuance of a letter evidencing final acceptance of such facilities by Round Rock. Customer agrees that Round Rock has the right to make periodic inspections during the construction phase of such facilities and Customer shall make necessary arrangements to provide lawful access for such purposes. 4.0 RATES AND CHARGES 4.1 Temporary Wholesale Wastewater Rates. The rate charged Customer for wholesale wastewater service hereunder shall be $2.75 per thousand gallons of sewage influent delivered to the Round Rock system. In order to save Customer the costs of purchasing and installing a meter, Round Rock will charge Customer based on the average monthly gallons discharged from the North Plant during the most recent twelve -month period. 4.2 Customer Connection Fees. Round Rock acknowledges that Customer has the right under applicable law to assess, charge and collect such Customer impact fees, capital recovery fees, connection fees, meter fees, or other service fees, rates, taxes or other charges as it shall deem appropriate and that this Agreement shall not be construed to require, limit or restrict the governmental power of the Customer to implement the same. Customer shall be solely responsible for the proper 5. exercise of its governmental power to assess and collect such fees and charges and for ensuring that all fees, taxes, rates and charges Customer elects to charge are in compliance with applicable law. 5.0 BILLING METHODOLOGY 5.1 Monthly Statement. For each monthly billing period, Round Rock will forward to Customer a bill providing a statement of charges for wholesale wastewater service provided to the Customer within said monthly billing period. Customer agrees to make timely payment for wholesale wastewater service provided hereunder. Payment shall be considered past due thirty (30) days from the date of receipt of each such monthly bill for wholesale wastewater service. Round Rock is hereby authorized to apply a late charge on past due payments in accordance with its policies and ordinances. 5.2 Infiltration. Customer understands and agrees that the water entering the Round Rock System emanating from any source whatsoever must be given treatment and handling whether or not its source is revenue producing for Customer. It shall be the Customer's responsibility to undertake such measures as are necessary or prudent to minimize infiltration to the Customer collection system. Drainage water may not be discharged to the Round Rock wastewater system. 5.3 Effect of Nonnavment. With respect to monthly billings hereunder, if payment is not received from the Customer by the due date, the bill shall be considered delinquent. In such event, Round Rock shall notify Customer of such delinquency in writing and, if Customer fails to make payment with regard to such delinquent billing within thirty (30) calendar days from the date of transmittal of such written notice of delinquency from Round Rock, then Round rock may, at its discretion, terminate all obligations of Round Rock under this Agreement upon written notice thereof to the Customer. 6.0 WASTEWATER DUALITY 6.1 Condition of Wastewater Delivered. Customer agrees to construct capital facilities and /or operate and maintain its facilities so as to ensure that wastewater delivered to the Round Rock System will have a sulfide concentration no greater than two milligrams per liter (2 mg /1) and a ph factor of between six (6) and eleven (11) and otherwise be in a condition that is noncorrosive and otherwise noninjurious to the publicly owned treatment works or any portion of the sanitary sewer constituting the Round Rock system. Customer agrees to pay for all damage and the cost of repair to the Round Rock system caused by its delivery of wastewater that is corrosive or otherwise injurious to the Round Rock system. In the event the Director determines that the addition of oxidizing chemicals or another acceptable 6. 8.0 ACCESS method of pretreatment of wastewater or operation of the Customer system is necessary to render wastewater delivered to the Round Rock system noncorrosive and noninjurious to the Round Rock system, Customer agrees to install such facilities and /or implement such methods of operation and maintenance, at its sole expense, as are deemed by the Director to be necessary to the protection of the Round Rock system. Customer further agrees that the Director may set appropriate limits for dissolved oxygen, sulfides, or other substances in the event such limits are deemed by the Director to be necessary to protect the Round Rock system. This section shall apply whether or not Customer is a permittee or is required to obtain a permit under Section 10.400 of the Round Rock Code (1990 Edition), as amended. In the event Customer fails to implement the foregoing measures required for protection of the Round Rock system, Round Rock may require Customer to implement an operation and maintenance plan to ensure that flows received from Customer are noncorrosive or otherwise noninjurious to the Round Rock system, require payment of the cost of repair of damaged facilities as a condition to the further receipt of wastewater service hereunder, restrict Customer flows to the extent necessary to protect its system, provide notice of termination of this Agreement, file suit to recover for any and all damages to the Round Rock system caused by such failure on the part of the Customer or seek such other and further relief, at law or in equity, as Round Rock shall deem advisable. 7.0 LIABILITY FOR DAMAGES AND RESPONSIBILITY FOR TREATMENT AND DISPOSAL OF WASTEWATER Liability for damages to third persons arising from the reception, transportation, delivery and disposal of all wastewater discharged hereunder shall remain with Customer to the point of entry. With exception of incompatible wastes or the delivery by customer of prohibited wastes or wastewater that is corrosive or otherwise injurious to the Round Rock system or to persons or property, upon passing through the point of entry, liability for damages to third persons shall pass to Round Rock. Subject to the foregoing, Round Rock shall bear the responsibility as between the parties hereto for the proper reception, transportation, treatment, and disposal of all such wastewater received by it at points of entry, provided however, that nothing herein shall ever be construed to absolve Customer of liability for damages to the Round Rock system or to third persons arising from the delivery by Customer of prohibited wastes or wastewater that is corrosive or otherwise damaging to the Round Rock system or to persons or property. Customer agrees to provide ingress and egress at all times to all Round Rock and Customer property inside Customer's 7. boundaries for Round Rock employees and agents to install, operate, inspect, test, and maintain facilities owned or maintained by Round Rock within the jurisdiction of Customer or to inspect Customer facilities connected thereto. Round Rock agrees to provide ingress and egress at all times to Round Rock and Customer property inside Round Rock's boundaries for Customer's employees and agents to install, operate, inspect, test, and maintain facilities, and read meters owned or maintained by Customer in and upon the property of Round Rock. 9.0 FORCE MAJEURE If, by reason of force majeure, either party hereto shall be rendered unable, in whole or in part, to carry out its obligations under this Agreement, the party whose performance is so affected shall give notice and the full particulars of such force majeure to the other party within a reasonable time after the 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 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 the public enemy, orders of any kind of the government of the United States or the State of Texas, or of any court or agency of competent jurisdiction or any civil or military authority, insurrection, riots, epidemics, landslides, lightning, earthquake, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraints of government and people, civil disturbances, explosions, breakage or accidents to machinery, pipelines or canals, or inability on the part of a party to perform due to any other causes not reasonably within the control of the party claiming such inability. 10.0 REGULATORY COMPLIANCE This •Agreement shall be subject to all valid rules, regulations and laws applicable hereto passed or promulgated by the United States of America, the State of Texas, the City of Round Rock or any other governmental body or agency having lawful jurisdiction or any authorized representative or agency of any of them. Since Round Rock must comply with all Federal, State and local government requirements to obtain permits, grants and assistance for system construction, studies, etc., Customer shall cooperate with Round Rock in good faith at all times to insure compliance with any such governmental requirements where non - compliance may subject Round Rock to penalties, 8. loss of grants or other funds, or other adverse regulatory action. 11.0 PERMANENT SERVICE 11.1 Service from Austin. Customer acknowledges that Round Rock is agreeing to provide temporary wholesale service in order to allow Customer time to obtain permanent wastewater treatment service from Austin. Customer further acknowledges that it has already begun negotiating with Austin to obtain permanent service and that it will continue such negotiations in good faith. In the event that such negotiations are not successful and Customer determines that it will be unable to contract with Austin to accept its wastewater for treatment by October 1, 1994, then Customer agrees to immediately notify Round Rock of such determination. 11.2 Service from Round Rock. In the event that Customer and Austin are unable to agree as aforesaid, Customer and Round Rock agree to negotiate in good faith for Round Rock to provide permanent service. 11.3 Service from Customer. If Customer and Round Rock are unable to agree to the terms of permanent service, then Customer shall be free to construct its own treatment facility to treat its wastewater, PROVIDED HOWEVER, that Customer agrees that any new wastewater treatment facility will be located downstream of the recharge zone of the Edwards Aquifer. In such event, Round Rock agrees to facilitate the relocation of the treatment facility off of the recharge zone by agreeing to allow Customer to utilize transmission capacity in Round Rock's system and to provide a location for a treatment plant at Round Rock's East Wastewater Treatment Plant site. Customer will be charged a reasonable amount based on Round Rock's costs for the transmission capacity and the treatment plant site. 12.0 TERMINATION 12.1 Termination for Breach. Either party shall have the right to terminate this Agreement in the event of a material breach of the provisions of this Agreement by the other if the defaulting party has not cured such material breach within thirty (30) days after the non - defaulting party has made written demand to cure the same. 12.2 Termination upon Agreement with Austin. If Customer enters into an agreement with the City of Austin for permanent service, this Agreement shall terminate upon Austin's accepting Customer's wastewater for treatment. 13.0 TERM OF AGREEMENT Unless earlier terminated under the provisions hereof, the term of this Agreement shall commence as of the date of 9. execution hereof by all parties and shall remain in effect until September 30, 1994. 14.0 WITHDRAWAL OF PROTEST Upon execution of this Agreement by both parties, Round Rock agrees to immediately file with the TNRCC a notice of withdrawal of its protest of Customer's application for a renewal of its waste discharge permit for the North Plant. 15.0 GENERAL PROVISIONS 15.1 No Guarantee of Land Use Approval. This Agreement is for utility service and is not intended and shall not be construed to grant or constitute an approval or guarantee of a particular type or level of land use or buildout within the Customer jurisdiction or its out -of- district service areas. 15.2 Assignment. Neither party may assign its rights and obligations under this Agreement without having first obtained the prior written consent of the other which consent shall not be unreasonably withheld. 15.3 Amendment. This Agreement may be amended or modified only by written agreement duly authorized by the respective governing bodies of Customer and Round Rock and executed by the duly authorized representative of each. 15.4 Necessary Documents and Actions. Each party agrees to execute and deliver all such other and further instruments and undertake such actions as are or may become necessary or convenient to effectuate the purposes and intent of this Agreement. 15.5 Severabilitv. In case any one or more provisions contained herein are deemed invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and in such event, this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 15.6 Entire Agreement. This Agreement constitutes the entire agreement of the parties and supersedes any prior or contemporaneous oral or written understandings or representations of the parties respecting the subject matter hereof. 15.7 Applicable Law. This Agreement shall be construed under and in accordance with the laws of the State of Texas. 15.8 Venue. All obligations of the parties created hereunder are performable in Williamson County, Texas and venue for any action arising hereunder shall be in Williamson County. 10. ti 15.9 No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer upon any person or entity, other than the parties hereto, any rights, benefits, or remedies under or by reason of this Agreement. 15.10 Duplicate Originals. This Agreement may be executed in duplicate originals each of equal dignity. 15.11 Notices. Until changed by written notice thereof any notice thereof any notice required under this Agreement may be given to the respective parties by certified mail, postage prepaid or by hand - delivery to the address of the other party shown below: By: By: CUSTOMER Brushy Creek Municipal Utility District Attn: General Manager 901 Great Oaks Drive Round Rock, Texas 78681 Stephan L. Sheets City Attorney 11. ROUND ROCK Each party shall forward to the other within twenty -four (24) hours of the filing thereof in the Texas Natural Resource Conservation Commission a true copy of any petition, application or other instrument affecting this Agreement, whether directly or indirectly. 15.12 Effective Date. This Agreement shall be effective from and after the date of due execution hereof by all parties. APPROVED AS TO FORM: CITY OF City of Round Rock, Texas 221 East Main Street Round Rock, Texas 78664 Attn: Director of Public Works UND ROCK Date: arles Culpe ayor BRUSHY CREEK MUNICIPAL UTILITY DISTRICT By: Barbara Day James M. Donaldson, District's Attorney President Date: March 15, 1994 Mayor Charles Culpepper City of Round Rock 221 East Main Round Rock, Texas 78664 Dear Mayor Culpepper: 03 08,40 $,5122550332. BRUSHY ¶ CREEK Municipal Utility District 901 Great Oaks Drive • Round Rock, Texas 78681 - 2506 (512) 255-7871 The attached proposal was approved by the Brushy Creek MUD Board of Directors at last night's meeting and is being forwarded to you for review and, hopefully approval by the Round Rock City Council. It is a compilation of the memos that you and I have exchanged and the memos between David Bodenman and Robert Bennett. Please call me with any concerns you may have with the attached. Hopefully we can look at this as a beginning of the three parties working to a common goal. Dick Shackelford Director, Brushy Creek MUD cc: Robert Bennett, City Manager Robert Stluka, Mayor Pro -tem John Adams, General Manager, BCMUD James Donaldson, President, BOA, BCMUD BRUSHY CREEK MUD P.02 March 15, 1994 BRUSHY L CREEK Municipal Utility District 901 Great Oaks Drive • Round Rock, Texas 78681 -2506 (512) 255 -7871 Mayor Charles Culpepper City of Round Rock 221 East Main Round Rock, Texas 78664 03'18'94 08:40 S 5122 50332. BRUSHY CREEK MUD P.03 Re: Renewal of the Brushy Creek Municipal Utility District's Permit for the Brushy Creek North Plant Dear Mayor Culpepper: Based on our discussions, we propose the following resolution to the City of Round Rock's protest of the Brushy Creek Municipal Utility District's application to renew the permit for its Brushy Creek North Plant; 1. The City of Round Rock and the District will enter into a contract pursuant to which Round Rock will provide the District with 100,000 gallons per day (thirty -day average) of wastewater treatment on an immediate basis, at a rate of $2.75 per thousand gallons, based upon the past years monthly average discharge for the North plant. 2. The District will cease use of its Brushy Creek North Plant immediately upon Round Rock's provision of 100,000 gallons per day (thirty -day average) of wastewater treatment. '3. The District will have 180 days to enter into a contract with the City of Austin pursuant to which the City of Austin will provide the District with wastewater treatment for 100,000 gallons per day (thirty -day average) immediately and 300,000 gallons per day (thirty -day average) to be phased in the future. Mayor Charles Culpepper March 15, 1994 Page 2 03/18 08:41 M5122580332. 4. If the District is unable to enter into such a contract with the City of Austin the HUD will enter into contract negotiations with the City of Round Rock pursuant to which the City of Round Rock will provide the District with wastewater treatment as outlined in item 3 above. 5. The District's permit for the Brushy Creek North Plant will be terminated upon contract of capacity of 300,000 gallons per day (thirty -day average) wastewater treatment by either the City of Austin or the City of Round Rock. The permit will terminate within a reasonable time. Sincerely, .fie J ackelfotd r Brush reek M Dick �h Director Brushy MUD difrig„t, David Bodenman HyLand Resources, Inc. BRUSHY CREEK MUD P.04 03/22/94 13:11_ ROUND ROCK PUBLIC 61ORK5.- 512 255 6676 DATE: March 22, 1994 SUBJECT: City Council Meeting, March 24, 1994 ITEM: 13G. Consider a resolution authorizing the Mayor to exec an agreement with Brushy Creek MUD regarding treatment for Brushy Creek North. STAFF RESOURCE PERSON: Jim Nuse STAFF RECOMMENDATION: In an effort to protect the Edwards Aquifer, Round Rock and Brushy Creek MUD wish Creek to enter into an North would be off -lin and the fl ows would be treated by Round Rock. A copy of the proposal will be attached. ND.574 009 To: Robert L. Bennett, Jr. CC: Jim Nuse From: Stephan L. Sheets, Stephan L. Sheets & Associates, P.C. Date: March 22, 1994 Subject: Draft agreement for temporary wholesale wastewater service to BCMUD Memorandum Enclosed p1easP find a DRAFT of an agreement between the City and BCMUD for temporary wholesale wastewater service. In order to save time, rather than drafting an agreement from scratch, I decided to utiliwt as best as I could, the previous draft of the proposed agreement between the City and BCMUD for permanent service. I deleted several pages of provisions that related more to permanent service than temporary service. In order to facilitate your review of the draft, I have highlighted the provisions that I believed to be the most pertinent to this agreement. Please let me know if you have any comments or questions concerning this draft. J � � � � ( t. � !o `cL 3 - OL3A,FY THE STATE OF TEXAS S AGREEMENT FOR TEMPORARY WHOLESALE WASTEWATER SERVICE $ BETWEEN CITY OF ROUND ROCK AND $ BRUSHY CREEK MUNICIPAL UTILITY COUNTY OF WILLIAMSON $ DISTRICT THIS AGREEMENT is made and entered into by and between the City of Round Rock, Texas, a Texas municipal corporation ( "Round Rock ") and Brushy Creek Municipal Utility District, a municipal utility district created and operating pursuant to Article 16, Section 59 of the Texas Constitution and Chapter 54, Texas Water Code ( "Customer "). WHEREAS, Customer has pending before the Texas Natural Resource Conservation Commission ( "TNRCC ") an application to renew permit number 11866 -01 to allow the continued discharge of treated domestic sewage effluent to the Onion Branch of Brushy Creek; and WHEREAS, Round Rock has protested the granting of said application to renew the permit; and WHE AS{ �iOUnd �sck and ttshomer was se tle to d ifferences by Round Rock withdrawing its prcxtest to Customer's app1iaatian ; in oonsideretion • for Customer seeking' a ; pe,rmanent 'alternative source of wastewater treatment or moving its diS harge point Off Of 'the reab;ai ge zone of the Edwards Aquifer, and WHEREAS, Customer has requested that the City provide temporary wastewater service to Customer on a wholesale basis only for the northern portion of the Customer district that lies within Round Rock's Extraterritorial Jurisdiction and Service Area ( "the North Area ") that is currently provided with wastewater service from a package wastewater treatment plant owned and operated by the Customer ( "the North Plant "); and WHEREAS, Round Rock is desirous of contracting with Customer to provide temporary wholesale wastewater service to the North Area only subject to certain terms and conditions; and WHEREAS, Round Rock and Customer are desirous of setting forth in a written agreement the terms and conditions to govern the provision of such temporary wholesale wastewater service to the North Area of the Customer district; and NOW, THEREFORE, in consideration of the terms, conditions and covenants herein contained, Round Rock and Customer hereby agree as follows: 1.0 DEFINITIONS W I T N E S S E T H: 1.1 "Customer System" means the facilities of Customer for collection and transportation of wastewater to the point of entry. 1.2 "Delivery Facilities" means all facilities (lines, mains, valves, manholes, etc.) necessary for Customer's collection and transmission of wastewater to the Round Rock system. The term includes facilities which are on the Customer side of the connecting facility which are constructed specifically to allow Round Rock to serve Customer. 1.3 "Director" means the Director of the City of Round Rock Public Works Department or his authorized designee. 1.4 "Drainage water" means stormwater or floodwater. 1.5 "Incompatible wastes" means substances not amenable to wastewater treatment processes that will damage or interfere with the operation of a publicly owned treatment works ( "POTW ") or any portion of the Round Rock System, including interference with the use or disposal of municipal sludge as well as pollutants that will pass through the treatment works unchanged by the treatment processes. 1.6 "Infiltration" means water that has migrated from the ground into the wastewater system. 1.7 "Interference" means an inhibition or disruption of Round Rock's system, treatment processes, or operations that cause or contribute to a violation of any requirement of Round Rock's Federal effluent discharge permit. 1.8 "North Area" means that portion of the Brushy Creek Municipal Utility District north of Brushy Creek currently located in Round Rock's Extraterritorial Jurisdiction and Service Area. .9 < oP Cliff 4 'sh i be defax -ed as"*J a o'oniiea i iyt Oi.IItJ : at which wastewater passes from t Custom sy ex st em into Round systems > m._..... ._he ....... ....� 1.10 "Prohibited Waste" means substances that are prohibited from being discharged into Round Rock's System and Customer's System except in accordance with Section 10.400 of the Round Rock City Code, as amended. 1.11 "Round Rock's System" or "Round Rock system" means the wastewater collection and treatment system of the City of Round Rock whether wholly owned by Round Rock or by and through Round Rock's participation interest in one or more contracts for the provision of regional wastewater service. 2. 1.12 "Service Area" means Round Rock's Impact Fee Service Area /Utility Service Area. 1.13 "Sewage" means water borne human excreta and gray water. 1.14 "State Rules" means Texas Department of Health Wastewater Surveillance and Technology Rules, Chapter 301, Design Criteria for Sewerage Systems. 1.15 "Waste and /or Wastewater" means liquid or water borne waste, including, without limitation, sewage, industrial waste or other wastes, whether separate or commingled. 2.0 PROVISION OF WHOLESALE WASTEWATER SERVICE 2.1 - • Iaeve1 .F p1esa • e Sary ae µ u� ecC to the ` terms " and conditions stated heroin and the xequirememts•,of applicable €taw, Round Rock ,agrees'to• provide temporary' wholesale ;wastewater • service for the North ' Area of the - canto nez district - only •' and' to ; accept A and "• treat all "wastewater eivr�d, by the customer from M North Area to the pain Jf entry .approved as' set , forth•:_hereinbelow; provided however, that temporary wholesale wastewater service provided by Round Rock to the, North Area under this Agreement shall of exceed 1CO,0p0 gallons per day on a thirty-day average pasis without 'he••prior•Written consent of Round Rock,. Any< r,orease in the maximum 1eve1 of Wholesale: service hereunder ter: hail - require °a amendment of this Agreement duly authorized by the governing bodies of Round Rock and Customer executed by th the ... authorized representatives of Round Rook and e '" aus rnner, ._.....m.,._ .... ...... ..... .............•....... ,,.........._........,•.M,....• . 2.2 Retail Billing and Collection. Customer agrees that it shall be solely responsible for retail billings to its customers and for all retail collections thereon. 2.3 Retail Service Commitments. Customer shall be solely responsible for the performance of any and all retail service contracts or commitments made by and between Customer and its retail customers within or outside of the District whether before or after the effective date of this Agreement and Round Rock shall have no liability or obligation for the performance of same nor shall any third person with whom Customer contracts for retail service be considered a third party beneficiary of this Agreement. 2.4 Expansion of Customer Service Area. This contract is for a specific level of temporary wholesale wastewater service for the North Area of the Customer district only. Expansion of the Customer service area by annexation or the addition of out -of- district service areas following the date of execution hereof shall be subject to the prior written consent of Round Rock. Round Rock reserves the right to deny for any reason any or all requests by the Customer to expand the level or 3. geographic scope of the wholesale wastewater service provided under this Agreement. 2.5 Contingencies for Commencement of Wholesale Wastewater Service. Round Rock and Customer agree that, in addition to the terms and conditions otherwise set forth in this Agreement, the commencement of wholesale wastewater service to the North Area shall be subject to the following conditions precedent: aj . constructifln' e.. Cla amen ` and . final.,; inspect ion and approval. *,,Rounil Rock_'oV ,al.l.' delivery, and the gacilities regained to , be' oa�istructed by the Customer T hereunder as well .' as acquisition • of , all easement required for la 3c nstrUctian, installation, operation and maintenance s.t same; aYf M _ ....,..... . b) written authorization from the Director acknowledging that all contingencies, conditions and requirements for connection to the Round Rock system and commencement of temporary wholesale wastewater service have been satisfied and that wholesale service to the North Area may commence. 2.6 Curtailment of Service. Customer agrees that if wastewater service is curtailed within Round Rock or to other Customers of the Round Rock system, Round Rock may impose a like curtailment on wholesale wastewater service delivered to the Customer hereunder provided, however, that Round Rock shall impose such curtailment in an equitable and nondiscriminatory fashion. Nothing herein shall be construed to prohibit Round Rock from curtailing service completely in the event of a maintenance operation or emergency for a reasonable period necessary to respond and complete such maintenance operation or effect emergency repairs. 2.8 Cooperation During Maintenance or Emergency. Customer shall cooperate with Round Rock during periods of emergency or required maintenance and, if necessary, shall discontinue, cycle, test, inspect, or otherwise operate and maintain its lift stations or other equipment at its expense in a manner determined by the Director to be necessary to the safe and efficient completion of repairs or the replacement of facilities, the restoration of service, and the protection of the public health, safety, and welfare. 3.0 CONSTRUCTION AND DESIGN OF FACILITIES 3.1 Point of Entry. Subject to the terms and conditions stated herein, Round Rock agrees to accept and treat wastewater delivered from Customer to the point of entry. 3.2 Construction of Delivery. Other Facilities. Customer agrees to design and construct, at its sole expense: 4. a) all delivery and connecting facilities necessary to the provision of wholesale wastewater service hereunder; and b) all pretreatment or other facilities required by applicable federal, state or local law. 3.3 Approval of Plans. All plans and specifications for delivery, or other facilities to be constructed by Customer shall be subject to review and approval of the Director prior to commencement of construction thereof. 3.4 Standards for Review of Plans. Plans and specifications required to be submitted to the Director for prior review and approval are required to conform to Round Rock's standard specifications and applicable federal, state and local laws, ordinances, and regulations in effect at the time of such submission or resubmission. 3.5 Costs of Delivery. Other Facilities. Except as otherwise set forth in this Agreement or otherwise specifically agreed in writing by Round Rock and Customer, Customer shall be responsible for and shall pay all costs for rights -of -way, design, engineering, contracting, construction and inspection of delivery, and other facilities required to be constructed for the provision of wholesale wastewater service hereunder. 3.6 Inspection and Acceptance of Facilities. Acceptance of completed delivery, or other facilities required to be constructed hereunder is subject to final inspection and performance testing by Round Rock, payment of applicable inspection fees by Customer, and issuance of a letter evidencing final acceptance of such facilities by Round Rock. Customer agrees that Round Rock has the right to make periodic inspections during the construction phase of such facilities and Customer shall make necessary arrangements to provide lawful access for such purposes. 4.0 RATES AND CHARGES 4.1 Thm po � y o s1 s 7asteFrater Rtes T The rate charged Customer for wholesale wastewater service hereunder shall bd g2.75,per thousand gallons of sewage influent delivered to the .Round , Rook: system.. I order,: to save Vusto her the assts of purchasing and installing meter,: Round Rock will charge ustouter based on the average monthly gallons discharged front ple Narth Plant,durin the most recent twelve -month aeriod 4.2 Customer Connection Fees. Round Rock acknowledges that Customer has the right under applicable law to assess, charge and collect such Customer impact fees, capital recovery fees, connection fees, meter fees, or other service fees, rates, taxes or other charges as it shall deem appropriate and that this Agreement shall not be construed to require, limit or restrict the governmental power of the Customer to implement the same. Customer shall be solely responsible for the proper 5. exercise of its governmental power to assess and collect such fees and charges and for ensuring that all fees, taxes, rates and charges Customer elects to charge are in compliance with applicable law. 5.0 BILLING METHODOLOGY 5.1 Monthly Statement. For each monthly billing period, Round Rock will forward to Customer a bill providing a statement of charges for wholesale wastewater service provided to the Customer within said monthly billing period. Customer agrees to make timely payment for wholesale wastewater service provided hereunder. Payment shall be considered past due thirty (30) days from the date of receipt of each such monthly bill for wholesale wastewater service. Round Rock is hereby authorized to apply a late charge on past due payments in accordance with its policies and ordinances. 5.2 Infiltration. Customer understands and agrees that the water entering the Round Rock System emanating from any source whatsoever must be given treatment and handling whether or not its source is revenue producing for Customer. It shall be the Customer's responsibility to undertake such measures as are necessary or prudent to minimize infiltration to the Customer collection system. Drainage water may not be discharged to the Round Rock wastewater system. 5.3 Effect of Nonpayment. With respect to monthly billings hereunder, if payment is not received from the Customer by the due date, the bill shall be considered delinquent. In such event, Round Rock shall notify Customer of such delinquency in writing and, if Customer fails to make payment with regard to such delinquent billing within thirty (30) calendar days from the date of transmittal of such written notice of delinquency from Round Rock, then Round rock may, at its discretion, terminate all obligations of Round Rock under this Agreement upon written notice thereof to the Customer. 6.0 WASTEWATER OUALITY 6.1 Condition of Wastewater Delivered. Customer agrees to construct capital facilities and /or operate and maintain its facilities so as to ensure that wastewater delivered to the Round Rock System will have a sulfide concentration no greater than two milligrams per liter (2 mg /1) and a ph factor of between six (6) and eleven (11) and otherwise be in a condition that is noncorrosive and otherwise noninjurious to the publicly owned treatment works or any portion of the sanitary sewer constituting the Round Rock system. Customer agrees to pay for all damage and the cost of repair to the Round Rock system caused by its delivery of wastewater that is corrosive or otherwise injurious to the Round Rock system. In the event the Director determines that the addition of oxidizing chemicals or another acceptable 6. method of pretreatment of wastewater or operation of the Customer system is necessary to render wastewater delivered to the Round Rock system noncorrosive and noninjurious to the Round Rock system, Customer agrees to install such facilities and /or implement such methods of operation and maintenance, at its sole expense, as are deemed by the Director to be necessary to the protection of the Round Rock system. Customer further agrees that the Director may set appropriate limits for dissolved oxygen, sulfides, or other substances in the event such limits are deemed by the Director to be necessary to protect the Round Rock system. This section shall apply whether or not Customer is a permittee or is required to obtain a permit under Section 10.400 of the Round Rock Code (1990 Edition), as amended. In the event Customer fails to implement the foregoing measures required for protection of the Round Rock system, Round Rock may require Customer to implement an operation and maintenance plan to ensure that flows received from Customer are noncorrosive or otherwise noninjurious to the Round Rock system, require payment of the cost of repair of damaged facilities as a condition to the further receipt of wastewater service hereunder, restrict Customer flows to the extent necessary to protect its system, provide notice of termination of this Agreement, file suit to recover for any and all damages to the Round Rock system caused by such failure on the part of the Customer or seek such other and further relief, at law or in equity, as Round Rock shall deem advisable. 7.0 LIABILITY FOR DAMAGES AND RESPONSIBILITY FOR TREATMENT AND DISPOSAL OF WASTEWATER 8.0 ACCESS Liability for damages to third persons arising from the reception, transportation, delivery and disposal of all wastewater discharged hereunder shall remain with Customer to the point of entry. With exception of incompatible wastes or the delivery by customer of prohibited wastes or wastewater that is corrosive or otherwise injurious to the Round Rock system or to persons or property, upon passing through the point of entry, liability for damages to third persons shall pass to Round Rock. Subject to the foregoing, Round Rock shall bear the responsibility as between the parties hereto for the proper reception, transportation, treatment, and disposal of all such wastewater received by it at points of entry, provided however, that nothing herein shall ever be construed to absolve Customer of liability for damages to the Round Rock system or to third persons arising from the delivery by Customer of prohibited wastes or wastewater that is corrosive or otherwise damaging to the Round Rock system or to persons or property. Customer agrees to provide ingress and egress at all times to all Round Rock and Customer property inside Customer's 7. boundaries for Round Rock employees and agents to install, operate, inspect, test, and maintain facilities owned or maintained by Round Rock within the jurisdiction of Customer or to inspect Customer facilities connected thereto. Round Rock agrees to provide ingress and egress at all times to Round Rock and Customer property inside Round Rock's boundaries for Customer's employees and agents to install, operate, inspect, test, and maintain facilities, and read meters owned or maintained by Customer in and upon the property of Round Rock. 9.0 FORCE MAJEURE If, by reason of force majeure, either party hereto shall be rendered unable, in whole or in part, to carry out its obligations under this Agreement, the party whose performance is so affected shall give notice and the full particulars of such force majeure to the other party within a reasonable time after the 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 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 the public enemy, orders of any kind of the government of the United States or the State of Texas, or of any court or agency of competent jurisdiction or any civil or military authority, insurrection, riots, epidemics, landslides, lightning, earthquake, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraints of government and people, civil disturbances, explosions, breakage or accidents to machinery, pipelines or canals, or inability on the part of a party to perform due to any other causes not reasonably within the control of the party claiming such inability. 10.0 REGULATORY COMPLIANCE This Agreement shall be subject to all valid rules, regulations and laws applicable hereto passed or promulgated by the United States of America, the State of Texas, the City of Round Rock or any other governmental body or agency having lawful jurisdiction or any authorized representative or agency of any of them. Since Round Rock must comply with all Federal, State and local government requirements to obtain permits, grants and assistance for system construction, studies, etc., Customer shall cooperate with Round Rock in good faith at all times to insure compliance with any such governmental requirements where non - compliance may subject Round Rock to penalties, 8 . loss of grants or other funds, or other adverse regulatory action. o ll 1 ' , P.T V 7 C 8 T st7I7 ° us "om�r c szz 3 edges" that Rt and : l�c� k ... is, agreeing to'provids temporary "wh'alesale service in order i o' "allow ,Customer time ti--obtain-permanent wastewater treatment service trim: Austin, customer further acknowledged that it has already begun negotiating With Austin to obtain permanent service and that it will. continue such negotiations n good faith. " 1n. • the event ,that 'such. negotiations are "not successful and Custoner determines that it will be unable to contract with Austin'tci accept its wastewater for treatment by October 1, , 1. 94 then • Oustomer agreed_ to immediately , Ro notify Roundck such determination. " :_ -w 11:TT Service from• Round Rock..-- n , e • tiiat',Customer ; aria Austin are,unable,to agree'as aforesei.d; Custoner and Round pock agree to negotiate - ii' Cod faith for Round Sock to provide permanent service. a .3 ServiOe'Xrc 1 $46 e a - stonier Sri# "l auri Ra "rlc are unable to agree...to the terms of permanent service, -then . Customer` shall be s tree to 'construct its own treatment facility to treat' its wastewater; PRavIDED HOWEVER, that Customer agrees that any new wastew;tex - treatment facility .will be located downstream of.the recharge; one of the Edwards Aquifer. In 'such event . Round • .Rock agrees to ' facilitate the relocation; of ,the ' treatment " facility ,• "off ` of ••the recharge zone •• kty agreeing ,to' allow Customer to utilize transmission capacity n Round _Rook's system • and 'to provide a 'location : for treatment - plant at Round Rock's East •Wastewater Treatment Plant site. Customer, willIbe charged a reasonable amount based On hound Rock's costs for the transmission capacity and 'the'treatment plantsite, 12.0 TERMINATION Mess ae rlier.terminatea under the provisions' hereof the ,term of this" Agreement shall commence as of the' data of ;a z. z �eerminAtipn ePOn" Agree }ef 'WitIC AuSt • T- GUsto er, en - into an agreement •, with • the . City . Austin' for • permanen ervice..: ;' this "`,�groiment ..:'shad l : °tezmixxate °.:uisnn _ siustin ,0 accepting Customers wastewater for treatment) 12.1 Termination for Breach. Either party shall have the right to terminate this Agreement in the event of a material breach of the provisions of this Agreement by the other if the defaulting party has not cured such material breach within thirty (30) days after the non - defaulting party has made written demand to cure the same. 9. execution` herei3f bY;a11 ° ihrtie: ., :51 .' Septni!! 23 95 W M reiii:a h"' s' igieareiTt it a i pat es;" ctTia7Rar agree to • immediately file' with ? tha . TNRCC : a" notice of 'Fithdrawal of ;its' protest of Customer's application for a renewal of ite:yaste dischar9e permit for. North £Plano• 15.0 GENERAL PROVISIONS 10. all remain "s .s eb 15.1 No Guarantee of Land Use Approval. This Agreement is for utility service and is not intended and shall not be construed to grant or constitute an approval or guarantee of a particular type or level of land use or buildout within the Customer jurisdiction or its out -of- district service areas. 15.2 Assignment. Neither party may 'assign its rights and obligations under this Agreement without having first obtained the prior written consent of the other which consent shall not be unreasonably withheld. 15.3 Amendment. This Agreement may be amended or modified only by written agreement duly authorized by the respective governing bodies of Customer and Round Rock and executed by the duly authorized representative of each. 15.4 Necessary Documents and Actions. Each party agrees to execute and deliver all such other and further instruments and undertake such actions as are or may become necessary or convenient to effectuate the purposes and intent of this Agreement. 15.5 Severability. In case any one or more provisions contained herein are deemed invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and in such event, this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 15.6 Entire Agreement. This Agreement constitutes the entire agreement of the parties and supersedes any prior or contemporaneous oral or written understandings or representations of the parties respecting the subject matter hereof. 15.7 Applicable Law. This Agreement shall be construed under and in accordance with the laws of the State of Texas. 15.8 Venue. All obligations of the parties created hereunder are performable in Williamson County, Texas and venue for any action arising hereunder shall be in Williamson County. 15.9 No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer upon any person or entity, other than the parties hereto, any rights, benefits, or remedies under or by reason of this Agreement. 15.10 Duplicate Originals. This Agreement may be executed in duplicate originals each of equal dignity. 15.11 Notices. Until changed by written notice thereof any notice thereof any notice required under this Agreement may be given to the respective parties by certified mail, postage prepaid or by hand - delivery to the address of the other party shown below: CUSTOMER Brushy Creek Municipal Utility District Attn: General Manager 901 Great Oaks Drive Round Rock, Texas 78681 By: 11. ROUND ROCK City of Round Rock, Texas 221 East Main Street Round Rock, Texas 78664 Attn: Director of Public Works Each party shall forward to the other within twenty -four (24) hours of the filing thereof in the Texas Natural Resource Conservation Commission a true copy of any petition, application or other instrument affecting this Agreement, whether directly or indirectly. 15.12 Effective Date. This Agreement shall be effective from and after the date of due execution hereof by all parties. APPROVED AS TO FORM: CITY OF ROUND ROCK BY: Stephan L. Sheets Charles Culpepper, Mayor City Attorney Date: BRUSHY CREEK MUNICIPAL UTILITY DISTRICT By: By: Barbara Day James M. Donaldson, District's Attorney President Date: