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R-94-08-11-10B - 8/11/1994WHEREAS, the City of Round Rock has previously purchased the assets of the Round Rock Water Supply Corporation ( "RRWSC ") subject to outstanding litigation; and WHEREAS, the RRWSC and Byron Miller, et ux have agreed to a settlement of a lawsuit involving an utility easement; and WHEREAS, the parties to the lawsuit have requested that the City approve of the settlement 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 a Compromise Settlement Agreement, a copy of said Agreement being attached hereto and incorporated herein for all purposes. RUG-LIST RESOLVED this llth day of ATTEST: ' /.1L• RS /RESOLUTIONS RS4OB11U LAND, City Secretary RESOLUTION NO. /l.' / "7 - OE- 11- 106 1994. Round ock CHARLES CUL EP Mayor City of Rou , Texas J. RANDALL GRIMES ROBERT M. PHILLIPS' +• 'Board Cemfu7— (iimmil Law T Bard eLegal Spxiakraron + Member, GBge efSma Bare T w *AI ember, Pro Born Cdig, smw liar eMar STEVEN C. COPENHAVER OF COUNSEL Mr. Steven Sheets 309 E. Main Street Round Rock, Texas 78664 Re: No. 93 208 - C368 Dear Steve: JRG /jl LAW OFFICES GRIMES & PHILLIPS 110 EAST 7TH STREET SUITE 200 P.O. BOX 1019 GEORGETOWN, TEXAS 78627.1019 August 4, 1994 Enclosed is an original Compromise Settlement Agreement. It relates to the settlement of a lawsuit and is self- explanatory. The Miller's attorney, Bob Bradshaw, included a signature line for a representative of the City of Round Rock. All named defendants in the suit have signed the Agreement and the money damages have already been paid. The city was not a party to the suit, but it would sure be helpful if we could obtain their approval. If an unauthorized representative of the city will sign the Agreement, please call Jill in my office and she will pick up the original Agreement from your office. Thank you for your cooperation. Yours truly, J. RANDALL GRIMES AREA CODE 512 GEORGETOWN NO 683-0508 AUSTIN NO. 930.3074 FACSIMILE NO 8834823 HAND- DELIVERED CAUSE NO. 93- 208 -0368 BYRON R MILLER AND 5 IN THE DISTRICT COURT WIFE JUDITH D. MILLER 1 PLAIN I11• F S 5 5 V 5 368TH JUDICIAL DISTRICT f ROUND ROCK WATER SUPPLY 5 CORPORATION, ET AL. DEFENDANTS 1 WILLIAMSON COUNTY, TEXAS COMPROMISE SETTLEMENT AGREEMENT THIS AGREEMENT is incident to and arises out of claims asserted or assertable by and between Plaintiffs, Byron R. Miller and wife, Judith D. Miller (collectively "Miller ") and Defendant, Counter - Plaintiff and Cross - Plaintiff, Round Rock Water Supply Corporation ('RRWSC") in a lawsuit (the "Lawsuit ") styled, "Byron R. Miller and wife Judith D. Miller v. Round Rock Water Supply Corporation" in Cause No. 93- 208 -C368, presently pending in the 368th Judicial District Court of Williamson County, Texas, to which reference is made for further particularity. References to Third -Party Defendants" include First Texas Bank of Round Rock (formerly known as First National Bank of Round Rock), Williamson County, and Round Rock Independent School District. The signatories to this Agreement are as evidenced below. RECITALS 1. Byron R. Miller and wife, Judith D. Miller, filed the Lawsuit on August 13, 1993 against Round Rock Water Supply Corporation. 2. Round Rock Water Supply Corporation, a Texas non -profit water supply corporation, filed its written answer in the Lawsuit, also filing its counterclaim for 1 declaratory judgment respecting that certain water well access easement described more particularly below and that certain sanitary control easement also described more particularly below and additionally asserting a right of eminent domain to acquire certain rights -of -way and gain access to reach a proposed well site on Lot 21, Block B, Oak Bluff Estates, a subdivision of Williamson County, Texas, according to the map or plat of record in cabinet F, slides 125 -127 Plat Records of Williamson County, Texas. 3. Subsequently, Round Rock Water Supply Corporation filed its original cross - action against First Texas Bank of Round Rock, Williamson County and Round Rock Independent School District, alleging said third -party defendants owned or claimed an interest in the above - described real property. .4. The parties to this Agreement, as evidenced by the signatures below, desire to amicably resolve the claims described above and further to release to Byron R. Miller and wife, Judith D. Miller all rights which the parties to this Agreement may have respecting Lot 21, Block B of Oak Bluff Estates subdivision, especially in view of the fact that the City of Round Rock either has taken over or will take over from Round Rock Water Supply Corporation (sometimes herein "RRWSC') the ownership and operation of the water and sewer systems for Oak Bluff Estates and Oak Bluff Estates Phase 2, as well as a fourteen - acre tract of land situated north of County Road 123 and south of Brushy Creek, as evidenced by Resolution Number R- 94- 02 -10-9B of the City of Round Rock, Texas, dated February 10, 1994, a copy of which is attached hereto as Exhibit "A ". 2 AGREEMENTS Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed, the undersigned agree as follows: I. Miller hereby compromises and forever settles all claims asserted or which could have been asserted by Miller against RRWSC in the Lawsuit, as set forth below. II. RRWSC hereby compromises and forever settles all claims asserted or which could have been asserted by RRWSC against Miller in the Lawsuit, as set forth below. m. Contemporaneous with the execution of this Agreement by Miller, RRWSC will deliver duly executed Releases of Easement to Miller releasing (1) the easement, restrictions and covenants recorded at Vol. 1601, P. 561 -564 of the Williamson County Real Property Records and as set out and shown on the plat recorded in Cabinet F, Slide 125 -127, Plat Records of Williamson County and (2) the easement recorded at Vol. 2288, P. 252 -254 of the Williamson County Real Property Records in the form as attached hereto as Exhibits "B" and "C and will further pay to Miller the sum of S1,500 as reimbursement for attorney's fees incurred by Miller. RRWSC also accepts sole responsibility of securing the execution of this Agreement by all parties to the Lawsuit as well as all other signatories not later than IV. Except for obligations created or arising under this Agreement, Miller RELEASES 3 AND FOREVER DISCHARGES Round Rock Water Supply Corporation and its officers, directors, shareholders, partners, owners, agents and attorneys from all causes of action, losses, or claims of any kind whatsoever, known or unknown, which Miller may have against Round Rock Water Supply Corporation where such cause of action, loss, or claim arises out of or is in any manner based upon or related to, directly or indirectly, any of the events, transactions or occurrences alleged in the pleadings in the Lawsuit. V. Except for obligations created or arising under this Agreement, Round Rock Water Supply Corporation RELEASES AND FOREVER DISCHARGES Miller from all causes of action, losses, or claims of any kind whatsoever, known or unknown, which Round Rock Water Supply Corporation may have against Miller where such cause of action, loss, or claim arises out of or is in any manner based upon or related to, directly or indirectly, any of the events, transactions or occurrences alleged in the pleadings in the Lawsuit. VI. Except for obligations created or arising under this Agreement, First Texas Bank of Round Rock RELEASES AND FOREVER DISCHARGES Miller from all causes of action, losses, or claims of any kind whatsoever, known or unknown, which First Texas Bank of Round Rock may have against Miller where such cause of action, loss, or claim arises out of or is in any manner based upon or related to, d or indirectly, any of the events, transactions or occurrences alleged in the pleadings in the Lawsuit. VII. Except for obligations created or arising under this Agreement, Round Rock 4 Independent School District RELEASES AND FOREVER DISCHARGES Miller from all causes of action, losses, or claims of any kind whatsoever, known or unknown, which Round Rock Independent School District may have against Miller where such cause of action, loss, or claim arises out of or is in any manner based upon or related to, directly or indirectly, any of the events, transactions or occurrences alleged in the pleadings in the Lawsuit. VIII. Except for obligations created or arising under this Agreement, Williamson County RELEASES AND FOREVER DISCHARGES Miller from all causes of action, losses, or claims of any kind whatsoever, known or unknown, which Williamson County may have against Miller where such cause of action, loss, or claim arises out of or is in any manner based upon or related to, directly or indirectly, any of the events, transactions or occurrences alleged in the pleadings in the Lawsuit. IX Except for obligations created or arising under this Agreement, the City of Round Rock RELEASES AND FOREVER DISCHARGES Miller from all causes of action, losses, or claims of any kind whatsoever, known or unknown, which the City of Round Rock may have against Miller where such cause of action, loss, or claim arises out of or is in any manner based upon or related to, directly or indirectly, any of the events, transactions or occurrences alleged in the pleadings in the Lawsuit. X. Except for obligations created or arising under this Agreement, First Texas State Bank of Round Rock RELEASES AND FOREVER DISCHARGES Round Rock Water 5 Supply Corporation from all causes of action, losses, or claims of any kind whatsoever, known or unknown, which First Texas State Bank of Round Rock may have against RRWSC where such cause of action, loss or claim arises out of or is in any manner based upon or related to, directly or indirectly, any of the events or transactions or occurrences alleged in the pleadings in the Lawsuit. xi. Except for obligations created or arising under this Agreement, Round Rock Independent School District RELEASES AND FOREVER DISCHARGES Round Rock i Water Supply Corporation from all causes of action, losses, or claims of any kind whatsoever, known or unknown, which Round Rock Independent School District may have against RRWSC where such cause of action, loss or claim arises out of or is in any manner based upon or related to, directly or indirectly, any of the events or transactions or occurrences alleged in the pleadings in the Lawsuit Except for obligations created or arising under this Agreement, Williamson County RELEASES AND FOREVER DISCHARGES Round Rock Water Supply Corporation from all causes of action, losses, or claims of any kind whatsoever, known or unknown, which Williamson County may have against RRWSC where such cause of action, loss or claim arises out of or is in any manner based upon or related to, directly or indirectly, any of the events or transactions or occurrences alleged in the pleadings in the Lawsuit. xm. Miller and Round Rock Water Supply Corporation and the Third -Party Defendants 6 are contemporaneously signing an Agreed Order of Dismiccal of the Lawsuit. Upon performance of the items descr in paragraph III above, RRWSC will promptly obtain court approval of this order of dismissal and file same among the papers in the Lawsuit. XIV. Miller and Round Rock Water Supply Corporation each believe they are entitled to relief against the other and have agreed to this Agreement for the sole purpose of buying his /her /its peace from the other and that nothing herein shall be construed as an admission of liability by Miller or Round Rock Water Supply Corporation. XV. Each signatory to this Agreement represents and warrants to the other that his /her /it is the sole owner of all claims and causes of action that he /she /it is today releasing, that he /she /it has not assigned or pledged any such claims or causes of action in whole or in part to any other person, and that he /she /it is fully authorized to execute this Agreement. XtII, I All exhibits to this Agreement are by reference incorporated herein for all purposes and the signatories to this Agreement agree to execute originals of Exhibits 'B" and "C" contemporaneously with the signing of this Agreement and agree to execute any other 1 documents reasonably necessary to carry out the terms of this Agreement. XVL This Agreement shall be binding upon and inure to the benefit of the signatories hereto and their respective heirs, devisees, legal representatives, successors, and assigns, except as otherwise expressly provided herein. 7 XVUL EACH SIGNATORY WILL INDEMNIFY AND HOLD EACH OTHER SIGNATORY HARMLESS FROM ANY CLAIM, LOSS OR EXPENSE (INCLUDING ATTORNEY'S FEES), RESULTING DIRECTLY OR INDIRECTLY FROM A BREACH OF THIS AGREEMENT. XIX 8 This Agreement constitutes the sole and only Agreement of the signatories hereto and supersedes any prior representations, understandings, or written or oral agreements between the signatories respecting the subject matter hereof. This Agreement may be modified only in writing signed by all signatories. XX Each individual who signs this Compromise Settlement Agreement in a representative capacity for a signatory hereto does hereby individually represent and warrant to the other signatories to this Agreement that such individual is duly empowered and has actual authority to execute this Agreement in such representative capacity and that this Agreement is binding upon, enforceable against, and has been duly authorized by the signatory for whom such individual has signed this Agreement. XXL Round Rock Water Supply Corporation, upon signing this Agreement, hereby accepts the sole responsibility to file a copy of this Agreement with the TEXAS NATURAL RESOURCE AND CONSERVATION COMMISSION within ten (10) working days from the date of this Agreement. Round Rock Water Supply Corporation upon filing this Agreement with the TEXAS NATURAL RESOURCE AND CONSERVATION COMMISSION releases and forever discharges any claims or rights he /she /it may have known or unknown for he /she /its EMINENT DOMAIN AND POWER OF CONDEMNATION by virtue of TEX REV. CIV. STAT. ANN. art. 1434a, sec. 4 (Vernon Supp. 1993) or otherwise. Round Rock Water Supply Corporation having the Certificate of Convenience of Water #11985 for the Oak Bluff Estates Subdivision in Williamson County, Texas, hereby releases and forever discharges any past /present /future requests for permits to all rights, obligations and other matters emanating from and arising to Lot 21, Block B, Oak Bluff Estates, Williamson County, Texas, for any capital improvements in reference to any alternative water supply. EACH PARTY TO THIS AGREEMENT, BY SIGNING BELOW, ACKNOWLEDGES THAT HE /SHE /THEY OR IT FULLY UNDERSTAND THE FOREGOING AGREEMENT AND CONSENT TO EACH AND ALL OF ITS PROVISIONS. It is understood and agreed that this is a compromise of a doubtful and disputed claim, and that nothing contained herein shall be construed as an admission of liability by or on behalf of any signatory, all such liability being expressly denied. IN WITNESS WHEREOF, the parties below, as evidenced by their respective signatures, execute this agreement as of the _ day of 9 , 1994. BYRON MILLER STATE OF TEXAS COUNTY OF BEFORE ME, the undersigned authority, on this day personally appeared BYRON MII.1 FR, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration herein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this _ day of , 1994. STATE OF TEXAS COUNTY OF BEFORE ME, the undersigned authority, on this day personally appeared JUDITH D MILLER, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she executed the same for the purposes and consideration herein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this _ day of , 1994. 1 10 NOTARY PUBLIC, STATE OF TEXAS JUDITH D. MILLER NOTARY PUBLIC, STATE OF TEXAS 1 ROUND ROCK WATER SUPPLY CORPORATION A Texas Non - Profit Water Supply Corporation By: ee 11 HOWARD R. WIDMER STATE OF TEXAS 1 1 COUNTY OF WILLIAMSON 1 BEFORE ME, the undersigned authority, on this day personally appeared HOWARD R . !! I DM E President of the Round Rock Water Supply Corporation, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same is the act of the Round Rock Water Supply Corporation and that he executed the same as its President and as the act of such corporation for the purposes and consideration herein expressed. 1 GIVEN UNDER MY HAND AND SEAL OF OFFICE this / day of 1994. 7U /./) NOTARY PUBLIC, STATE OF TEXAS FIRST TEXAS BANK OF ROUND ROCK STATE OF TEXAS i 1 COUNTY OF WILLIAMSON BEFORE ME, the undersigned authority, on this day personally appeared Jon E. Sloan, President for the First Texas Bank of Round Rock, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same is the act of First Texas Bank of Round Rock and that s/he executed the same as its Presiden and as the act of such entity for the purposes and consideration herein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 6 day of July , 1994. MARY A KUBACAK Notary Puubtc, State of Tau MyCamasslon a ;fro APRIL 26,1998 12 OTA PUBLIC, OF TEXAS C, XAS JANE E. TABLEPoOU MY COMMISSION E (P RES Apr! 29, 199.s WILLIAMSON COUNTY STATE OF TEXAS 4 COUNTY OF WILLIAMSON ; BEFORE ME, the undersigned authority, on this day personally appeared 3 do n C • Do `rf2T - IZ Co . for Williamson County, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same is the act of Williamson County and that s/he executed the same as its Co and as the act of such county for the purposes and consideration herein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this J day of 1994. 1 -- 0 PUBLIC, STATE OF TEXAS 13 STATE OF TEXAS f 1 COUNTY OF WILLIAMSON f CHRISTINE R. MARTINEZ A!/COarsim Evi4 4 597 THE CITY OF ROUND ROCK 14 ITS in BEORE ME, the undersigned authority, on this day personally appeared CI+4 L S CULP6PIte, PnAy02 for the City of Round Rock, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same is the act of the City of Round Rock and that s/he executed the same as its /114 y0R and as the act of such City for the purposes and consideration herein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 1 1 day of l- {1 J5T' , 1994. O - ,� NOTARY PUBLIC, STATE OF TEXAS STATE OF TEXAS COUNTY OF WILUAMSON ROUND ROCK INDEPENDENT SCHOOL DISTRICT >r 42,1 ITS 7 s5C35nR /en, care A-- BEFORE ME, the undersigned authority, on this day personally appeared FO rresi R ad , Ts-K ,ksecs4, -4& ,,for the Round Rock Independent School District, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same is the act of the Round Rock Independent School District and that s/he executed the same as its T•-,r 60/!_¢e6/ and as the act of such school district for the purposes and consideration herein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this,,?- of Z 1994. 15 sado,e . . . 6( NOTARY PUBLIC, ST OF TEXAS O DARLENE MIDKIFF Notary Public, State of Texas My Conversion Expire. Oct. 1, 1897 EXHIBIT 'A' Y •e ♦1♦ -• ATTEST: ANNE LAND, City Secretary zvrawumot+ R.wnla11 RESOLLMON NO. R- 9 y - o14o- 98 WHEREAS, by Resolution No.'R- 94- 01- 13 -95, 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. Lao CHARLES CULP >r P AI Mayor City of Round R- , Texas 02/17/14 1a:vv INTERIM OPERATING AGREEMENT This Interim Opera Agent, hereinafter referred to as'Agreaneat,' is catered into by and between the Round Rock Water Supply Corporation, acting by and through its duly authorized president, John T. Zones, Jr. having address for notice at 500 West Sixteenth Street, Austin, Texas 78701, hereinafter referred to u RRWSC, and the (Sty 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 Fist Madisoa Bank, FSB, hereinafter referred to as Lewder, and, Whereas, RRWSC and City have tettative1y 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 ccoseat 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 Bluff Estates and Oak Bluff Estates Phase 2, two subdivisions in Wilfamson 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 ofWllllamson County, Teas, 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 Areal; and in connection therewith holds the "Certificate of Convenience for Water- Certificate No. 11985' and "Ce ii &sate of Convenience for Sewer - Certificate No. 20652' fa 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 Resouces and Conservation Commission (' NACU) to have a ahernate source 1 a2 /17/a4 141:1.1 was 600 0.40 of water when it re c.hes 250 residential connections to its water system; and, Whereas, the (Sty is wilting to provide such alternate source of water subject to the terms and conditions of this Agreement; and, Whereas, the Cdy by entering kto this Agreement assumes the ob!gations for the 'period of this Agreement' the day to day operations, irduding, 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 eater into this 'Agree rent,' NOW, THEREFORE, for and in consideration of Ten And No/100 Dollars (510.00) and other good and vahmble cormderatioo, the receipt and sufficiency of which are hereby acknowledged by the respective parties, the parties agree as follows: Article I Intent of the Partin It is the intent ofthe parties for the City to operate RRWSC water and sewer facilities while RRWSC attempts to secure the prior written consent of Lander 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 wM operate and maintain said water and sewer systems in return for the revenues from the system City wM operate the system in accordance with the standards of the State of Texas and the United States of America, and it vn11 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 responslbtiity of the City to file a copy of this Agreement with the TNRCC pursuant to Tea. Water Code Am. 13.255. 2 Article lII Operations and Malntalnence 3.01 As Is Condition_ City herby agrees to operate and maintain the water and sewer systems belonging to RRWSC. City accepts said systems in their pascal condition `u is and with all faults and without any warranty or representation' on the part of RRWSC. h is expressly agreed and understood that RRWSC owns Lot 29, Block A, Oak sluff Estates upon which its we 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- One. nu Cos■ i e;r and Capita Improveluat 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. Cly will pay or reimburse the lancets 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 51,000.00 for pump umps and/or motors and such obligation will be satisfied as follows. With respect to the replacement of capita improvements, the City will replace such capital improvements during the term of this Agreement at their expense. The City will not* RRWSC in writing of the costs of' any such expenditure, and RRWSC will set aside a cash reserve for the payment amid 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 tbereol; 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 an 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 ez/17/114 aa:w• against any and al claims or expenses caused by City's activities in connection with this Agreaneet or the property of RRWSC. 0. — _L„_, _ quen . 1 cc i al RR WSC Cdy agrees that the noopaymed by RRWSCs members of any sums due RRWSC for either moodily atities or capital recovery fees will be treated u the nonpayment of utTities 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. EullimElM011310QtE Qty shall not fiuther encumber all or any portion of the facilities of RRWSC without the prior written consent of RRWSC, which consent will not be unreasonably withheld. L + uLcation and Infomati4B: Cy agrees to have all persons and/or entities maldng new connections within the RRWSCs 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 snd 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 fast severing such written application for service and membership. J. Utility Rates and Other City Feet Clay agrees to provide water and sewer services to the residents of RRWSC 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. BenalmakiMI&IMM City agrees to keep RRWSC felTities in good repair and hi compliance with all rules and regulations relating to said faaTities by any governmental entity having jurisdiction over the City or the facilities, as the case may be. 3.05 Obligations of RRWSC: RRWSC agrees and obligates itself to the following: A_ No further eaambrances: RRWSC agrees not to Gather encumber the Lease Premises in any manner without the prior written consent of tie City. B. ---_ - fO y C,,,ial R.r.,vesv 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 03/11/14 15:01 Qali zoo ••e• 4 B. hi ema le c of Water If at any time the water system is inadequate to satisfy the needs of the Service Ara, the City agrees to furnish water to the service area through the 'Manville WSC Interconnect' located at the intersection of Canis School Road and County Road 122. In addition, the City has contracted with Randy Morino Heritage Properties, Inc. ('Morine, whereby Morine has agreed to construct a water line connecting the Otls water system directly to the RRWSC fad3ities. The contract with Morin calls for it to complete the construction of the water fine 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 sue 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. ttoraue Tank Rat It is agreed and understood that RRWSC is currently resting 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 (3500.00) 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 twin 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 TPIRCC • and the Certificates of Convenience and Necessity for Water and Sewer as shown above. The (sty 'Abe entitled to receive any and all income from the operation of Lase Premises, except as herein specified. E. Collections of Capital Recovery Fee for RRWSC. City agrees from and after January 1, 1994 to collect RRWSCs Capital Recovery Fee for each new connection to the system within RRWSCs 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 RRWSCs Capital Recovery Fee is Six Hundred Fifty And No/100 Doaus (3650.00) per connection. F. Indemnity of RRWSC by Citvv City agrees to indemnify the RRWSC from and 10# /1 1 /1• ♦ collected on or before January 15, 1994. C. Delivery of'M Built Plain'; RRWSC agrees to delver to Qty all'as built plan' sad other information related to the location of water and sewer utilities that its has in its possession. D. ' RRWSC agrees to deliver to Cty a complete list of member (residents) together with such past account information that the Qty may establish sewer rata for the year 1994, and such other information as the City night reasonably request. 3.06 Norio fp u1t a_nd Right to (sue Ddaulti 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 delver 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 are 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 This Agreement will terminate at the end of the term or upon searing the prior written consent of rust Madison FSB to the Lease Purchase Agreement as provided for above. Article IV Transfer of Systems and Proration of Income and Fipenses 4.01 F$' Dare of TraDAG The City agrees to takeover the operation of the system effective January 14, 1994. 4.02 The Oty and RRWSC v,� joirfly 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 pales agree that the income and emenses 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 0i /ljime •..v. Utilities through January 14, 1994. All water and sewer usage accruing after January 14, 1994 will belong to the City. 4.04 Mutual Cogpe ation Durirg Transition Period The parties agree to cooperate with each other during the transition paiod to make said transition as smooth u possible, and in this respect the parties agree to jointly read milers, and to otherwise share information about accowds, location of utilities, etc. 4.05 Management Fee Due T alt L Properties RRWSC and City agree to share equally the management fees due to T & L Properties in the amount of S3,780.00 for the months of February and March of 1994. In consideration of said fee, T &I, Properties has agreed to be available to the City during said months is order to affect a smooth and orderly transition of the operations from RRWSCto the fly. Article V )aneous Provision 5.01 EoraidajeltiL In case by reason of 'Force Majeure' either party hereto shall be rendered unable wholly or m part to arty 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 relic! 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 chimed, but for no longer period, and any such party shall endeavor to remove or overcome such inabity with all reasonable dispatch Tie term 'Force Majeure' as employed herein, shall mean acts of God, atnlces, 1°d-outs or other industrial ds , acts of public enemy, orders of any kind of the United States or the State of Terns or any civil or military authority, insurrections, riots, epidemics, landslides, lightning. earthquakes, foe% bumcanea, 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 iti Wastewater system hereunder or of the Cay 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 t2/11/14 11:10 Oats saa •.,• wiles and lockouts 'hall be entirely within the discretion of the party having the difficulty and that the above requirement that any Face Majeure shall be remedied with aft reasonable dispatch gall not require the settlement of stnlces 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 &acuity. 5.02 ReguJetc v Bodies. The Agreement shall be subject to all valid rules, regulations, laws, permits, orders, and ordinance applable 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 duty of them. 5.03 gommniallogalinnt, In each instance herein where reference is made to a federal, State, County, or municipal reguLtioa, it a 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 too Additional Waive Imobe& No waiver or waivers of any breach or default (or any breaches or defaults) by either party hereto of any term, covenant, condition, or liabffity hereunder, or of performance by the other party of arty 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 maybe given or be served by depositing the same in the United States mall 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 a e • S2/17/114 ia:aa uaa. .... .... Round Rat, Teas 78664 Attention (Sty Manager If to RRWSC to: Round Rock Water Supply Corporation 500 West Soteenth Street Austin, Toss 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 Ilergeglima, Unless the context require otherwise, words of the masarEne gender shall be construed to include correlative words of feminine and neuter genders and vice -versa and words of the singubr annber 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 valdiity of this Agreement Nothing in this Agreement shall be construed to pert 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 act 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 teasoeable 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 Wig, This Agreement shall be subject to change or modification only with the mutual written consent of the parties. 5.08 AsiiteAlEtt. This Agreement shall not be assignable by either party without the prior written consent of the other party. 5.09 Semliki., The provisions of this Agreement are severable, and if any provision or 9 VS/ a,. •• ..... pert delis Ageuu t or the application thereof to any person or circumstance shaft ever be held by any court of competent jeuisdxtoo 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 AA not be affected thereby. 5.10 Merget. 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 oati&ate «exerted by a person, firm or entity authorized to determine and give approval or consent on behalf of RRWSC pursuant to an order cc resolution adopted by the governiig body or board of directors thereof Such approval or consent of the parties shat be required u a condition to any action except u expressly required in this Agreement. 5.12 parties in Interest This Agreement shag be for the sole and exclusive benefit of the parties hereto and shall not be construed to confer any rights upon any third party. Nothing herein shall be construed to confer standing to sue upon any third party who did not otherwise have such standing. 5.13 Captions, The captions appearing at the first of each numbered section or paragraph in this Agreeaxat are inserted and included solely for convenience and shall never be considered or given any effect in construing this Agreement, or any provisions hero 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 02/17/14 11:1: Qott [ia wars (30) days after receipt of the violation notice, then the complaining party shall have recourse t0 the remedies available herein or wiicb are available by applicable law. Except u otbaaise provided by this Agreement, fzltm by either party to innately 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. Al =acts 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 evert 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 offer director, officer, attorney, agent, or employee of either the (city or RRWSC, whether in office as o1 or subsequent to, the effective date of this Agreement, for any dam based upon this Agreement. 5.17 Tune of Essence, Time is of the essence of this Agreement. 5.18 Remedies Upoe 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 obliigatiin, failure in the performance of which cannot be adequately compensated in money damages alone, the Qty agrees, in the event of any default on its part, that RRWSC shall have available tort the equitable remedies of mandamus or specific performance, or both, in addiction 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 oa its part that the ay 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 01/17/14 13:13 v411 144 0011k hereunder, shall be deemed to be conclusively waived unless asserted by a Proper proceeding at haw or in equity within two (2) years Plus one (1) day aller the occurrence of such default. ffective as of the 14th day of latalaty,1994. y its mayor, Char! 12 THE STATE OF TEXAS COUNTY OF WILLIAMSON ON THIS the _ day of _ following agreement and conveyance. and; and; RELEASE , } } KNOW ALL MEN BY THESE PRESENTS: } EXHIBIT "B" 1994, the undersigned have entered into the and wife, Judith D. Miller, are the owners of the WHEREAS, Byron R. Miller following described property, to-wit: Lot 21, Block B, OAK BLUFF ESTATES, a subdivision in Williamson County, Texas, according to the map or plat of record in CABINET F, SLIDES 125 -127, Plat Records of Williamson County, Texas. WHEREAS, Round Rock Water Supply Corporation, a Texas non - profit water supply corporation, reflected as the grantee of an easement and right -of -way referred to as a 20- foot water well access easement concerning the above - descr Lot 21, said instrument being dated August 19, 1987 and recorded on November 10, 1987 at Volume 1601, Page 561 of the Real Property Records of Williamson County, Texas, and as set out and shown on the plat recorded in Cabinet F, Slides 125 -127, Plat Records of Williamson County, Texas, WHEREAS, for and in consideration of Ten Dollars ($10.00) and other good and valuable consideration, the receipt of which is acknowledged, Round Rock Water Supply Corporation, being still the record owner of any rights referred to in said instrument, joined by the parties below as evidenced by their separate signatures hereon, have abandoned, released and discharged and hereby abandon, release and discharge that easement and all other rights or interests granted in said instrument dated August 19, 1987 and recorded on November 10, 1987 at Volume 1601, Page 561 of the Real Property Records of Williamson County, Texas, and as set out and shown on the plat recorded in Cabinet F, Slides 125 -127, Plat Records of Williamson County, Texas; FURTHER, Round Rock Water Supply Corporation does hereby grant, sell and convey to Byron R. Miller and wife, Judith D. Miller, all right, title, and other interests granted in said instrument last referred to. EXECUTED this _ day of ROUND ROCK WA r R SUPPLY THE STATE OF TEXAS 1 COUNTY OF WI LLIAMSON i 1994. By: y Howard R. Widmer , PRESIDENT RPORATION The foregoing instrument was acknowledged before me on this the 4 day of 1994, by Howard R. vi i d m e r President of Round Rock Water Supply rporation on behalf of said corporation. ('P &kid) aiz) NOTARY PUBLIC, STATE OF TEXAS EXHIBIT "B ", PAGE 2 RELEASE THE STATE OF TEXAS i KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WILLIAMSON ON THIS the _ day of , 1994, the undersigned have entered into the following agreement and conveyance. WHEREAS, Byron R. Miller and wife, Judith D. Miller, are the owners of the following described property, to-wit: Lot 21, Block B, OAK BLUFF ESTATES, a subdivision in Williamson County, Texas, according to the map or plat of record in CABINET F, SLIDES 125 -127, Plat Records of Williamson County, Texas. and; WHEREAS, Round Rock Water Supply Corporation, a Texas non -profit water supply corporation, reflected as the grantee of an easement and right -of -way referred to as a 20- foot water well access easement concerning the above - described Lot 21, said instrument being dated August 19, 1987 and recorded on April 21, 1993 at Volume 2288, Page 252 of the Real Property Records of Williamson County, Texas, and; WHEREAS, for and in consideration of Ten Dollars ($10.00) and other good and valuable consideration, the receipt of which is acknowledged, Round Rock Water Supply Corporation, being still the record owner of any rights referred to in said instrument, has abandoned, released and discharged and does hereby abandon, release and discharge that easement and all other rights or interests granted in said instrument dated August 19, 1987 and recorded on April 21, 1993 at Volume 2288, Page 252 of the Real Property Records of Williamson County, Texas; FURTHER, Round Rock Water Supply Corporation does hereby grant, sell and convey to Byron R. Miller and wife, Judith D. Miller, all right, title, and other interests granted in said instrument last referred to. EXHIBIT 'C' EXECUTED this day of 1994. ROUND) OCK WA R SUPPLY CORPORATION By: &HOWARD R. WIDMER , PRESIDENT THE STATE OF TEXAS COUNTY OF WILL IAMSON 4 Q rAce_ The foregoing instrument was acknowledged before me on this the 9 y day of _ ,1994, by Howard R. ji diRresident of Round Rock Water Supply Corporation behalf of said corporation NOTARY PUBLIC, STATE OF TEXAS EXHIBIT "C ", PAGE 2 Q "5 CHRIS PARKS S MY COMMISSION EXPIRES ?"`� February 14, 1596 DATE: August 9, 1994 SUBJECT: City Council Meeting, August 11, 1994 ITEM: 10.B. Consider a resolution approving a compromise and settlement agreement between Round Rock Water Supply Corporation and Byron Miller. STAFF RESOURCE PERSON: Steve Sheets STAFF RECOMMENDATION: When the City purchased the assets of Round Rock Water Supply Corporation, there was an outstanding lawsuit between Round Rock Water Supply Corporation and Byron Miller. These parties have reached a settlement agreement and have requested that the City approve the settlement agreement. Staff recommends approval.