R-96-09-12-10D - 9/12/1996and
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RESOLUTION NO. R- 96- 09- 12 -10D
WHEREAS, the City of Austin ( "Austin ") , the Brushy Creek
Water Control and Improvement Disrict No. 1 of Williamson and Milam
Counties ( "WCID ") and the City of Round Rock ( "Round Rock ") have
previously entered into that one certain Agreement for Termination
of Brushy Creek Regional Wastewater Disposal Agreement
( "Termination Agreement "), and
WHEREAS, said Termination Agreement provides, among other
things, that Austin and Round Rock will notify the WCID in writing
of any agreed division of Regional System Assets, and
WHEREAS, Austin and Round Rock have negotiated in draft form
the general terms of an Interlocal Agreement for Assumption of
Obligations and Division of Assets of the Brushy Creek Regional
Wastewater Disposal System and for Interim Operation and
Maintenance of Joint Wastewater System ( "Interlocal Agreement "),
WHEREAS, the City Council wishes to authorize the Mayor to
execute said Interlocal Agreement subject to the City Manager's and
City Attorney's approval of the final language and terms, 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, subject to the City Manager's and City
Attorney's approval of the final language and terms, an Interlocal
Agreement for Assumption of Obligations and Division of Assets of
the Brushy Creek Regional Wastewater Disposal System and for
Interim Operation and Maintenance of Joint Wastewater System, a
copy of said Agreement being attached hereto and incorporated
herein for all purposes
RESOLVED this 12th day of September, 1996.
ATTEST:
City Secretary
2.
dbai .--
CHARLES C FPER, Mayor
City of Round Rock, Texas
THE STATE OF TEXAS )
COUNTIES OF WILLIAM
ILLIAMSON )
AND TRAVIS )
KNOW ALL BY'1'HESE PRESENTS:
RECITALS
2 9� - - 1s -01)
INTERLOCAL AGREEMENT FOR ASSUMPTION OF OBLIGATIONS AND
DIVISION OF ASSETS OFTJIE BRUSHY CREEK REGIONAL WASTEWATER
DISPOSAL SYSTEM, AND FOR INTERIM OPERATION AND MAINTENANCE OF
JOINT WASTEWATER LINES
The City of Austin, a Texas home rule municipal corporation ( "Austin "), and the City of Round
Rock, a Texas home rule municipal corporation ("Round Rock "), "the Participants" made and enter
this Interlocal Agreement for the Assumption of Obligations and Division of Assets of the Brushy
Creek Regional Wastewater Disposal System, and for Interim Operation and Maintenance of Joint
Wastewater System ( "Agreement ").
1. On or about December 16, 1985, the Brushy Creek Water Control and Improvement
District No. 1 of Williamson and Milam Counties ( "the WCID"), Austin, Round Rock, Williamson
County Municipal Utility District No. 2 (now known as "Brushy Creek Municipal Utility District ")
and Williamson County Municipal Utility District No. 3 entered an interlocal agreement ( "the 1985
Agreement ") setting forth terms and conditions for the design, construction, operation, and
maintenance of a regional wastewater transportation and treatment system known as "the Brushy
Creek Regional Wastewater System" ( "Regional System ") intended to provide wastewater collection,
transportation, treatment, and disposal services for the participants and their respective customers in
a large area known as the "Upper Brushy Creek Watershed."
2. Williamson County Municipal Utility District No. 2 later withdrew from participation
under the 1985 Agreement, the 1985 Agreement subsequently expired of its own terms. Williamson
County Municipal Utility District No. 3 has since been annexed and dissolved by the City of Cedar
Park.
3. On or about April 11, 1988 Austin, Round Rock, and the WCID entered a certain
"Wastewater Disposal Agreement" setting forth terms and conditions and reaffirming the desire of
the parties to participate in the joint financing, construction, operation, and maintenance of a
downscaled version of the Brushy Creek Regional Wastewater System intended to provide
wastewater transportation and treatment services for that portion of the Upper Brushy Creek
Watershed located within the respective corporate limits and/or extraterritorial jurisdictions of Austin
and Round Rock.
4. On or about the January 30, 1989, Austin, Round Rock, and the WCID, acting
pursuant to Section 10.02 of the Wastewater Disposal Agreement, executed that certain Interim
Wastewater Disposal Agreement ( "the Interim Agreement ") whereunder the WCID secured interim
wastewater transportation and treatment services from Round Rock to provide interim wastewater
transportation and treatment services to Austin, a "Customer" of the WCID under the Wastewater
Disposal Agreement and the Interim Agreement, pending construction of the Regional System
Treatment Plant and Regional System wastewater collection and transportation facilities as more
particularly set forth therein.
5. Pursuant to the Wastewater Disposal Agreement, as amended on January 30, 1989
("the Wastewater Disposal Agreement "), Austin and Round Rock completely bore the cost of
constructing or acquiring the components of the Brushy Creek Regional Wastewater System.
6. Pursuant to the Wastewater Disposal Agreement, the WCID commenced its
responsibilities as Project Manager and performed the functions of Project Manager for the benefit
of Austin and Round Rock.
7. Pursuant to the Wastewater Disposal Agreement, the WCID, among other things,
acquired in its name for the benefit and at the expense of Austin and Round Rock, engineering studies
of the proposed Regional System, a wastewater discharge permit, and designation of the WCID as
the regional provider of wastewater services for the Upper Brushy Creek Watershed, and acquired
or constructed portions of the proposed wastewater collection and transportation components of the
Regional System and acquired certain easements and property rights appurtenant thereto (the
"Regional System Assets ").
8. In addition to certain wastewater facilities, permits, and property rights acquired by
or transferred to the WCID for the benefit of the Participants, Austin and Round Rock transferred
to the custody and control of the WCID certain funds, equipment, and other assets for use in
connection with the construction, operation, and maintenance of the Regional System.
9. Austin and Round Rock also respectively acquired or constructed in their own name
certain land, wastewater facilities, and property rights in contemplation of the later dedication of these
to the Regional System.
10. Pursuant to the Wastewater Disposal Agreement, Round Rock had agreed that its East
Round Rock Wastewater Treatment Plant ( "East Plant ") and plant site would be dedicated to and
become a part of the Regional System Plant and that the first phase of the Regional System Treatment
Plant would include the phased integration of the East Plant into the Regional System Treatment
Plant.
11. Austin and Round Rock also determined that, due to the earlier withdrawal of all
participants except Austin and Round Rock and the consequent downscaling of the Regional System
to serve only Austin and Round Rock and their respective customers, the further participation of the
WCID as Project Manager was no longer required and that they could more efficiently conduct the
joint financing, acquisition, construction, reconstruction, operation, maintenance, and
decommissioning of the Regional System.
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AUUSRRIOFIN
12. Because of such determinations and by virtue of that certain "Agreement for
Termination of Brushy Creek Regional Wastewater Disposal Agreement" ( "the Termination
Agreement ") effective September 19, 1994, Austin, Round Rock, and the WCID have set forth terms
and conditions for termination of the Wastewater Disposal Agreement, for transfer of all Regional
System Assets acquired or constructed by the WCID to Austin and Round Rock, and for assumption
by Austin and Round Rock of all Regional System obligations, liabilities, and responsibilities.
13. Following the execution of the Termination Agreement and before its implementation,
Round Rock also determined it feasible and prudent to decommission its West Wastewater Treatment
Plant (the "West Plant") then subsequently decided to rehabilitate the West Plant. Because of that,
Round Rock decided to increase its participation in the Regional System or its successor to
accommodate the treatment of wastewater flows transferred from its West Plant pending its
rehabilitation. -
14. Austin and Round Rock acknowledge that patterns of growth and wastewater volumes
have not occurred in the Upper Brushy Creek Watershed as anticipated at the time of execution of
the Wastewater Disposal Agreement, making it necessary to revise the previous engineering
projections of their respective wastewater transportation and treatment needs in the Upper Brushy
Creek Watershed and, accordingly, their respective ownership shares and cost participation in the
assets constructed or acquired for the Regional System.
15. Following the execution of the Termination Agreement, the 74th Texas Legislature
amended Chapter 42 of the Texas Local Government Code by adding a new §42.024 permitting
transfer oflarge portions of Austin's extraterritorial jurisdiction in the Upper Brushy Creek Watershed
to the extraterritorial jurisdictions of the City of Cedar Park ( "Cedar Park "). It additionally enacted
an amendment to §54.0162 of the Texas Water Code providing a means for Brushy Creek Municipal
Utility District and Fern Bluff Municipal Utility District to be released from Austin's extraterritorial
jurisdiction without Austin's agreement.' Austin believes this legislation called into question the
economic feasibility of Austin's further participation in the Regional System and subjected regional
planning for wastewater transportation and treatment services for the Upper Brushy Creek Watershed
to significant legal, financial, and political uncertainty.
16. In August 1995, Cedar Park sued Austin seeking a declaratory judgment that §42.024
of the Texas Local Government Code was valid, and that Cedar Park was entitled to transfer certain
extraterritorial jurisdiction from Austin to Cedar Park. The two cities are appealing the Williamson
County District Court's judgment that §42.024 is valid. .-
17. On January 11, 1996, Cedar Park and Austin entered an Agreement to release certain
extraterritorial jurisdiction without settling the pending litigation: In this Agreement, Cedar Park
agreed to reimburse Austin for utility improvements made by Austin as part of the Regional System.
Cedar Park also announced its general agreement to establish a regional wastewater facility to serve
southern Williamson County.
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ARTICLE 1
STATEMENT OF PURPOSE AND AUTHORITY
AND PLEDGE OF INTERLOCAL COOPERATION
18. In 1996, the Brushy Creek Municipal Utility District has chosen to be contained in the
extraterritorial jurisdiction of Round Rock. Round Rock has begun discussions with this district to
provide it water service. Included in their discussion is the possibility of providing wastewater
service. However, Austin has a Wholesale Wastewater Service Agreement with this district to serve
the southern portion of the district which expires in 2018.
19. In late 1995, Round Rock approached the Brazos River Authority ( "BRA ") and the
Lower Colorado River Authority ( "LCRA ") to see if BRA and LCRA were interested in helping
Round Rock build the expansion of the Regional Wastewater Treatment Plant. BRA along with
LCRA brought a proposal to Round Rock, Cedar Park, and Austin in early 1996 to purchase and
operate the Regional Wastewater System. The parties have not yet agreed on this proposal.
However, Round Rock has entered an Agreement for Acquisition of Wastewater System Assets,
Wastewater Disposal Agreement, and Supplemental Agreement on July 12, 1996, with BRA and
LCRA relating to this disposition of Round Rock's West Plant, East Plant, and its share of the
Regional System Assets.
20. Austin and Round Rock desire to implement the termination of their previous
relationship with the WCID in accordance with the provisions of the Termination Agreement and,
to do so, Austin and Round Rock desire to set forth in writing the terms and conditions to complete
the termination, to transfer, where necessary, partition, and document the ownership of the parties
in the Regional System Assets, and to arrange for joint use and maintenance of the gravity wastewater
lines comprising part of the Regional System Assets (after this defined as the "Joint Wastewater
Lines ").
NOW, THEREFORE, in consideration of the premises and the mutual promises and
undertakings set forth below, Austin and Round Rock contracts and agree as follows:
1.01 Statement of Purpose.. The purpose and intent of this Agreement are to set forth terms and
conditions for:
(a) disposition of assets previously acquired by the WCID for the former Regional
System and documentation of the ownership shares of Austin and Round Rock in the
assets transferred from the WCID;
(b) settlement of outstanding liabilities and responsibilities, release, and termination of the
1985 Agreement, Wastewater Disposal Agreement, the Interim Agreement, and the
HDR Interlocal;
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(c)
assumption of all WCID Regional System obligations by Austin and Round Rock as
required by the Termination Agreement; and
(d) joint use and maintenance of certain gravity wastewater lines acquired by the WCID
for the Regional System, being Contract 5 - Phase I (24" Gravity Line), Contract 5 -
Phase II, and Contract 6A ( "the Joint Wastewater Lines "), and for operation and
maintenance of the Joint Wastewater Lines to provide wastewater transportation
services.
1.05 Attorney's Fees. Austin and Round Rock acknowledge that their own legal counsel each
represented them concerning the negotiation and implementation of the Wastewater Disposal
Agreement, the Termination Agreement, and this Agreement and that each Participant has
borne its own legal fees to date concerning the same. Unless the Participants specifically
agree in writing to share the cost of retaining independent legal counsel not involving a
conflict of interest, each will continue to bear its own attorney's fees and legal costs
concerning the negotiation and implementation of this Agreement.
ARTICLE 2
DEFINITIONS
1.02 Authority. The Participants enter this Agreement pursuant to the provisions of the
Interlocal Cooperation Act, Texas Government Code, Chapter 791, Texas Local Government
Code, Chapters 252, 273, and 402 and other applicable law.
1.03 Pledge of Interlocal Cooperation and Good Faith. To perform this Interlocal Agreement
in a manner most beneficial to the parties and their respective citizenry, Austin and Round
Rock pledge to cooperate and to deal with each other in good faith always to achieve the
purposes and intent of this Agreement.
1.04 Commitment to Open Communication, Early Identification of Issues, and Joint
Problem Solving. In aid of those purposes, the parties will attempt to insure that they
identify and resolved the problems and concerns of one or both parties as quickly as possible.
Austin and Round Rock make a commitment to mutual respect, open communication, and
joint problem solving in relation to any such problems or concerns.
2.01 Definition of Terms.
(a) Unless the context clearly requires otherwise, terms used in this Agreement will have
the meaning set forth below:
(1) Agreement: This Interlocal Agreement for the Assumption of Obligations
and Division of Assets of the Brushy Creek Regional Wastewater Disposal
5 AWUSRRIOFIN
(2)
(3) Capacity: The rated wastewater treatment or transportation capacity of a
wastewater transportation or treatment facility.
(4) GPM: The acronym for gallons per minute.
(5) Joint Wastewater Lines: The following components are owned as tenants
in common and are the Joint Wastewater Lines:
(i) Contract 5 - Phase I (24" Gravity Line);
(ii) Contract 5 - Phase II; and
(iii) Contract 6A (60" wastewater line).
(6) Joint Wastewater Lines Costs: All Operation and Maintenance Expense,
and Joint Wastewater Lines Insurance Costs incurred by the Participants
pursuant to this Agreement for operation, and maintenance of the Joint
Wastewater Lines.
(
System and for Interim Operation and Maintenance of Joint Wastewater
Lines
Austin Tract: That portion of the Regional System Plant Site previously
acquired by Austin, said tracts containing approximately 41.181 acres of land,
as recorded in Volume 2657, Page 710, and Volume 2715, Page 422, of the
Official Records of Williamson County, Texas.
Joint Wastewater Lines Insurance: Policies of insurance secured to protect
against loss, theft, or damage to the Joint Wastewater Lines or to insure
against liability to third persons or other insurable consequences arising,
directly or indirectly, from the operation, or maintenance of the Joint
Wastewater Lines.
(8) MGD: The acronym for a million gallons per day.
(9) Operation and Maintenance Expense; All costs incurred for operation and
maintenance of the Joint Wastewater Lines including, but not limited to: ,
(i) cost of operation, maintenance, and repair of the Joint Wastewater
Lines;
(ii) cost of obtaining, maintaining, or renewing all permits, licenses, other
consents, approvals, or authorizations required to operate and
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A AUSRRIOFIN
maintain the Joint Wastewater Lines following applicable law and
generally accepted utility practices;
(iii) cost of supervision, engineering, accounting, auditing, administration,
legal, insurance, and other professional or personal services
determined by the Participants to be necessary concerning the
operation, maintenance, or preservation of the Joint Wastewater
Lines;
(iv) cost of labor, utilities, tools, supplies, equipment, and services
determined by the Participants to be necessary for operation and
maintenance of the Joint Wastewater Lines; and
(v) payments made in satisfaction of judgments, fines, or penalties not
covered by the Joint Wastewater Lines Insurance arising from or in
connection with the construction, operation, or maintenance of the
Joint Wastewater Lines. These payments include, without limitation,
the principal amount of any such judgment, fine, penalty, and interest,
attorneys' fees, court costs, and other expenses incurred concerning
litigation or other quasi-judicial or administrative proceedings
concerning the Joint Wastewater Lines.
(10) Participant: Austin or Round Rock acting by and through their respective
governing bodies.
(11) Regional System: The aggregate of all of the wastewater facilities described
in the Regional System Conceptual Plan or by the Participants as Components
of the Brushy Creek Regional Wastewater Disposal System with any
accessions, expansions, enlargements, improvements, replacements, or
extensions of it previously constructed or otherwise previously incorporated
into the Regional System pursuant to the Wastewater Disposal Agreement or
otherwise previously incorporated into the Regional System by mutual
agreement of the Participants.
(12) Regional System Assets: All physical and intangible assets previously
constituting the Regional System or previously held or used pursuant to the
Wastewater Disposal Agreement for financing, acquisition, ownership,
construction, reconstruction, operation, maintenance, and decommissioning
of the former Regional System pursuant to the Wastewater Disposal
Agreement. These assets include, without limitation:
(i)
all equipment, wastewater collection lines, lift stations, and other
equipment, fixtures, buildings, supplies, inventory, warehouses, and
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(ii) all land, easements, licenses, and other interests in real estate;
(iii) all engineering studies and reports, plans and specifications for
Regional System Components, Improvements, and Required
Improvements;
(iv) all cash, bank accounts, cash equivalent investments, receivables,
policies of insurance: and
(v) all other contract rights, consents, permits, authorizations, or other
intangibles acquired, held, or entered by virtue of the Wastewater
Disposal Agreement concerning the financing, acquisition, ownership,
construction, reconstruction, operation, , maintenance, and
decommissioning of the former Regional System.
(13) Regional System Component or Component: An individual wastewater
facility or collection of wastewater facilities and appurtenances identified by
the Participants as a Component of the Regional System.
(14) Regional System Conceptual Plan: The general conceptual plan for
regionalization of wastewater collection and treatment in the Upper Brushy
Creek Watershed as described in the following engineering studies and
reports, and updates, modifications, and revisions of the studies and reports
acquired by the Participants before the effective date of this Agreement:
(i)
appurtenances acquired for construction, operation, and maintenance
of the Regional System;
H &K Feasibility Study: report of Haynie & Kaltman, Inc. and Espey
Huston & Associates, Inc., Consulting Engineers, entitled "A
Feasibility Study of a Potential Regional Wastewater Treatment
Facility for the Upper Brushy Creek Watershed of Southwest
Williamson County, Texas," dated July 1984.
(ii) CDM Facilities Plan: report of Camp, Dresser & McKee, Inc.
entitled "Facilities Plan," dated September 1988.
(iii) HDR Preliminary Engineering Report: preliminary engineering
study of HDR Engineering, Inc. entitled "Preliminary Engineering
Report, Brushy Creek Regional Wastewater Treatment Facility,"
dated December 1993.
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(15) Regional System Plant Site: That certain tract containing a total of
approximately 74.338 acres located in the Joseph Marshall Survey,
Williamson County, Texas identified by the Participants as the location for
construction of the Regional System Treatment Plant. The Regional System
Plant Site consists of the Austin Tract and the Round Rock Tract.
(16) Regional System Treatment Plant or Treatment Plant: All wastewater
facilities and appurtenances constructed or acquired by Round Rock at the
Regional System Plant Site which includes the Round Rock East Wastewater
Treatment Plant ( "East Plant "). These comprise the wastewater treatment
plant Component of the Regional System.
(17) Reserved Capacity: The total quantity of Wastewater that a Participant is
entitled to deliver into any Joint Wastewater Lines Component pursuant to "
this Agreement. The Reserved Capacity of a Participant in a Joint Wastewater
Lines Component will be derived by determining the proportion that the
capacity owned or reserved for a Participant bears to the total capacity of that
Component expressed as a percentage.
(18) Round Rock Tract: That portion of the Regional System Plant Site acquired
by Round Rock, said tract containing approximately 33.157 acres of land, as
recorded in Volume 768, Page 648, of the Official Records of Williamson
County, Texas.
(19) TNRCC: The Texas Natural Resource Conservation Commission, or its
successor agency.
(20) Treatment Plant Common Facilities: Those properties, real, personal, or
mixed, and those wastewater facilities previously acquired under the
Wastewater Disposal Agreement for construction, reconstruction, operation,
maintenance, and decommissioning of the Regional System Treatment Plant.
The term "Treatment Plant Common Facilities" includes the following:
(i) influent raw wastewater lift station, appurtenances, and a 60" stub out
to future lift station;
(ii) an emergency generator;
(iii) piping to and from sludge dewatering building;
(iv) sludge dewatering building and pads for future dewatering equipment;
(v) modifications to treatment structures, including two circular treatment
9 wwUSRIUOFIN
units each 110' in diameter and a chlorine contact tank located
between them;
(vi) hydropneumatic tank and compressor;
(vii) access road and road improvements; and
(viii) miscellaneous plant piping and electrical equipment as more
particularly described in the plans and specifications for the Treatment
Plant Common Facilities.
(21) Wastewater: Liquid or water borne waste discharged from the sanitary
conveniences of dwellings, business buildings, institutions and the like
including, without limitation, garbage that has been shredded to such degree
that all particles will be carried freely under flow conditions normally
prevailing in public sewers, and the liquid wastes from commercial and
industrial processes, and includes any infiltration water that has migrated from
the ground into the Joint Wastewater Lines.
(22) WWTP: the acronym for wastewater treatment plant.
(b) Interpretation. Except where the context otherwise clearly requires, in this
Agreement:
(1) words imparting the singular will include the plural and vice versa;
(2) references to any document mean that document as amended or as
supplemented from time to time;
(3) all exhibits are incorporated into the terms of the Agreement; and
(4) references to any party mean that party, its successors, and assigns.
ARTICLE 3
STATUS OF REGIONAL SYSTEM CONSTRUCTION AND
SPECIFIC AGREEMENTS REGARDING DISPOSITION AND
USE OF CERTAIN FORMER REGIONAL SYSTEM ASSETS
3.01 Acknowledgment of Previous Ownership Percentages. The Participants acknowledge
that, under the Wastewater Disposal Agreement, Austin was to generally own and bear 85%
of the costs for construction and operation of the Regional System and Round Rock was to
generally own and bear 15% of the costs for the same. They also agree that those Regional
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System Components and Assets previously acquired were funded generally according to the
described 85% Austin, 15% Round Rock allocation.
3.02 Acknowledgment of Changed Circumstances. Austin and Round Rock further
acknowledge that the following changed circumstances have arisen after the execution of the
Interim Agreement:
(a) A condition precedent to termination of the Wastewater Disposal Agreement set forth
in Section 1.05 of the Termination Agreement is the termination of the Interim
Agreement.
(b) Upon termination of the Wastewater Disposal Agreement, the WCID will no longer
be a provider of wastewater transportation and treatment services to Austin and
Round Rock and Austin and Round Rock will no longer be "Customers" of the
WCID.
(c) Upon termination of the Interim Agreement, Austin and Round Rock likewise will no
longer be "Customers" of the WCID under the Interim Agreement.
(d)
Under the terms of the "Agreement for Wholesale Wastewater Service Between City
of Austin and Brushy Creek Municipal Utility District" effective November 4, 1993,
Austin agreed to provide wholesale wastewater service for the south area of Brushy
Creek Municipal Utility District ( "Brushy Creek MUD ").
(e) By separate agreement, Austin provides wholesale wastewater transportation and
treatment services for Fern Bluff Municipal Utility District ( "Fern Bluff MUD ").
Additional growth is anticipated in Fern Bluff MUD.
(f) Austin intends to improve the Onion Branch Lift Station (Contract 4) at its sole
expense to upgrade its pumping capacity from 1750 GPM to its maximum capacity
of 4460 GPM.
(g)
(h)
Austin intends to construct the remaining approximately 514' segment of Contract 5 -
Phase II at its sole expense for its use.
The treatment capacity of the East Plant has been re -rated by the TNRCC from 2.5
MGD to 3.6 MGD.
Austin retained HDR Engineering, Inc. ( "HDR ") to provide design phase engineering
services for the Treatment Plant. HDR has completed such design phase engineering
and delivered to Austin and Round Rock proposed plans and specifications for
construction of the Treatment Plant;
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(j) , Paragraphs 14 through 19 of the Recital to the Agreement identify additional events'
that the Participants agree affected their participation in the Regional System.
(k) Pending the outcome of further proceedings and discussions with respect to the
ultimate status and disposition of Austin's ETJ, Austin will continue to need interim
wholesale wastewater transportation and treatment services for its customers.
3.03 Acknowledgment of Need to Adjust Ownership Interests in Regional System Assets.
Because of the changed circumstances described herein and the revised agreements of the
Participants set forth in this Agreement, Austin and Round Rock have determined that an
adjustment of their respective participation shares in those Regional System Assets is
necessary and reasonable.
3.04 Adjustment of Previous Ownership Interests, Reserved Capacity, and Cost
Responsibility for Regional System Components. Notwithstanding the level of ownership
participation described in the 1985 Agreement, Wastewater Disposal Agreement, and the
Interim Agreement, Austin and Round Rock agree that, upon the payment from Round Rock
to Austin as described in §3.05(d) and (e), and upon the transfers of title in various facilities,
each Participant shall own their interests in the Regional System Assets, both jointly and
singularly, in the proportions shown on Exhibit A. The Participants shall be entitled to
Reserved Capacity in the Regional System Assets held jointly in the proportions shown on
Exhibit A. The Participants shall be responsible for the cost of the Regional System
Components in the proportions shown on Exhibits A and C.
3.05 Consideration for Adjustment of Ownership Shares and Reserved Capacity.
(a) Austin and Round Rock agree that the consideration for the agreed transfers of
property, adjustment of ownership shares, Reserved Capacity, and responsibility for
the actual cost of the Regional System Components shall include:
(1)
the agreement of each party to transfer property and rights and to adjust their
respective undivided ownership shares, Reserved Capacity, and responsibility
for the cost of existing Regional System Components as described on Exhibit
A;
(2) the agreement to terminate obligations of each Participant under the 1985
Agreement, Wastewater Disposal Agreement, the Interim Agreement, and the
HDR Interlocal;
(3) the payment of additional funds from Round Rock to purchase Austin's
surplus capacity in Contracts 6A and 9;
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(4) equitable adjustments to reflect each Participant's usage of certain facilities;
and
(5) Each Participant's agreement to pay for 100% of the costs for facilities that
the other Participant will not use.
(b) The Participants have identified the engineering, construction, and easement costs
associated with the Assets identified in §3.06 and §3.07 in Exhibit B. When
construction costs are listed in Exhibit B without associated engineering or easement
costs, the construction cost includes those costs.
(c) Besides the costs of the Regional System Components listed in §3.06, the Participants
were further responsible for other project costs of the Regional System. The other
project costs include their share of the WCID's costs for the original facilities
planning, facilities planning updates, legal fees, and organization and administration
costs.- These costs were necessary for the development and acquisition of the
Regional System. However, the Participants have not separated these costs for each
individual Regional System Component but have divided them into the costs
associated with the individual contracts. These expenditures are considered capital
assets of the Participants and have been paid for by bond financing. The expenditures
made by the Participants for the Regional System with these costs divided among the
various contracts are identified in Exhibit B.
(d) The net monetary effect of the agreed transfers of property, adjustment of undivided
ownership shares, Reserved Capacity, purchase of surplus capacity, and responsibility
for the cost of the existing Regional System Components is that Round Rock shall
owe to Austin the amount of One Million Ninety -Four Thousand Nine Hundred Forty
Two Dollars ($1,094,942) as shown on Exhibit C. Round Rock agrees to pay Austin
this amount within 30 days of execution of this Agreement. Exhibit C is the agreed
itemized listing of the division of the costs of the Participants.
(e) This division is based upon the costs supplied by the WCID to the Participants. They
have received the WCID's annual audit reports through Fiscal Year 1993 -1994. The
estimated costs used for Fiscal Years 1994 -1995 and 1995 -1996 were $48,000. If the
audited reports for those fiscal years show any deviation from that amount, Round
Rock and Austin agree to adjust the amounts owed accordingly. Additionally, the
Participants agree to adjust the amounts payable by Round Rock for the 60" inch
wastewater line portion of Contract 9 by the percentages reflected in Exhibit A. The
Participants agree to revise the amounts on Exhibit B and C to reflect the changes
needed for both the audit and the Contract 9 adjustments. Since the final audits will
not be prepared within 30 days of execution of this Agreement, the Participants will
pay any remaining amounts owed for the audit and the Contract 9 adjustments, if any,
within 30 days after receiving the final audit.
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(f) The agreed adjustment of ownership shares, Reserved Capacity, and cost
responsibility will be complete upon the execution of this Agreement by the
authorized representatives of Austin and Round Rock, the payment of that amount
owed by Round Rock to Austin, and the agreed transfers of property as set forth
above.
(g)
Each Participant has examined or had a reasonable opportunity for its authorized
representatives to examine the agreed transfers of property, ownership shares,
Reserved Capacity, and cost responsibility set out in this Agreement. Each
Participant agrees that the consideration to each Participant is roughly equivalent and
sufficient to support such agreed transfers of property, adjustment of ownership
shares, Reserved Capacity, and cost responsibility.
3.06 Description and Status of the Regional System As Originally Conceived. The Participants
acknowledge that, as originally conceived, the Conceptual Plan contemplated that the
Regional System would consist, among other things, of certain facilities together with all
property rights, easements, permits, plans, records, and other appurtenances. The
Components of the Regional System are shown, in part, on Exhibit D. They are described on
Exhibit E.
3.07 Existing Regional System Facilities Separately Acquired by Austin and Round Rock
for the Regional System But Not Previously Transferred to the WCID. The Participants
acknowledge that certain wastewater facilities intended to be dedicated to the Regional
System under the Wastewater Disposal Agreement were acquired by Austin or Round Rock
in their own name but they did not transfer title to the same to the WCID under the
Wastewater Disposal Agreement. The WCID did not acquire these assets at the request of
Austin and Round Rock. Had the WCID acquired these assets, the Participants would have
been responsible for paying for a portion of those facilities as identified in §3.01. These
existing facilities and their status as of the date of execution hereof are as follows:
(a) Regional System Plant Site: Round Rock Tract acquired by Round Rock and
Austin Tract acquired by Austin but neither conveyed to the WCID;
(b) = Treatment Plant and Treatment Plant Common Facilities: constructed or under
construction by Round Rock but not conveyed to the WCID;
(c) Contract 3 Redesign: redesign of line is under progress at the date of execution of
the Agreement by Austin under a separate contract with Espey, Huston & Asso.; and
(d) Contract 40: constructed and acquired by Austin but not conveyed to the WCID.
14
A•WUSRRIOFIN
3.08 Regional System Work Under a Separate Agreement. Pursuant to the Interlocal
Agreement Concerning Procurement of Design Phase Engineering ( "the HDR Interlocal")
between Austin and Round Rock effective April, 18, 1994, Austin procured the services of
HDR Engineering, Inc. ( "HDR ") to perform design phase engineering for the Regional
System Treatment Plant. HDR has completed the final engineering, design, and specifications
for the Regional System Treatment Plant for a total cost of $772,108. Under the terms of the
HDR Interlocal, Round Rock agreed to reimburse Austin for 64 per cent of the total invoiced
cost of the design project. In addition to the amount identified in §3.05, Round Rock agrees
to pay Austin $494,149 within 30 days of the execution of this Agreement.
3.09 Agreements Regarding Disposition and Transfer of Certain Existing Regional System
Facilities and Assets. Participants agree that no other consideration other than that listed
in §3.05, unless specifically identified, is dud from the other Participant under any prior
agreements or this Agreement for the following disposition and transfers. Regarding the
assets described in §3.06, §3.07, and §3.08, the Participants agree as follows:
(a) - Plans and Specifications for Treatment Plant. Regarding the plans and
specifications for the Treatment Plant, Austin and Round Rock agree that:
(1)
(2) the Plans and Specifications may be used by Round Rock or Austin.
(b) Land for Regional System Plant Site. As to the Austin Tract and Round Rock
Tract respectively acquired by Austin and Round Rock for the Regional System Plant
Site, the Participants agree to the following:
(1)
- (2) Neither Participant is responsible for any payment to the other for this asset,
except as provided in (5) below;
(3)
all design phase deliverables produced by HDR for the Regional System
Treatment Plant (the "Plans and Specifications ") will be owned by Austin and
Round Rock as tenants in common according to their interest identified in
Exhibit A of this Agreement;
Each Participant will retain Legal title to its Respective Treatment Plant Tract
in its own name;
Austin agrees that, during the ongoing construction of the first 6.8 MGD
phase of the Treatment Plant, Round Rock may make temporary use of the
Austin Tract for temporary deposit of construction spoils, location of
temporary construction trailers and vehicles, or as a laydown yard for storage
and organization of construction materials. Round Rock will be solely
responsible for acquiring all necessary permits, licenses, and insurance.
15
A.\AUSRRIO FIN
Following completion of such construction, Round Rock will restore the
surface of those portions of the Austin Tract it utilizes for such purposes as
near as reasonably possible to the condition existing before Round Rock's use
of the same for such construction related activities; -
(4) Austin agrees to grant an easement and right -of -way to Texas Utilities
Electric Company for electric service to the Round Rock Tract;
(5)
In addition to the amount identified in §3.05, Round Rock agrees to pay
Austin $400'for the easement described in (4) above within 30 days of the
execution of this Agreement; and
(6) the Participants agree that no other consideration for the purchase of the two
tracts is due from the other Participant under any prior agreements or this
Agreement.
(
in the event that Austin desires to construct a treatment plant on its tract,
Round Rock agrees to provide an easement to Austin allowing it to divert
flow from the existing wastewater lines .and facilities and to use the Round
Rock Tract for that purpose. They will enter an agreement to provide for the
use of the facilities and land for additional consideration.
(c) Treatment Plant and Treatment Plant Common Facilities. Title to the Treatment
Plant and Treatment Plant Common Facilities will remain in Round Rock. Austin will
not be responsible for the costs of operation, maintenance, replacement, and
decommissioning of these facilities.
(d) Round Rock East Plant. Title to the existing 3.6 MGD East Plant and
appurtenances will remain in Round Rock. Austin will not be responsible for the
costs of operation, maintenance, replacement, and decommissioning of these facilities.
(e) Wastewater Discharge Permit. Austin and Round Rock will continue to be joint
permittees of Permit No. 13057 -1 for a 10 MGD discharge secured from the TNRCC
permitting the discharge of treated wastewater effluent from the Regional System
Treatment Plant. If either Participant operates under this Wastewater Discharge
Permit, it will be responsible for operating its plant in accordance with the Permit.
The operating Participant will be responsible for all costs that arise from permit
violations, including penalties and legal costs.
(f) Agreed Disposition of Easements, Plans, and Records for Contracts 1, 2, 3, 8a,
8b, 10, 40, and 44. Pursuant to the Termination Agreement, the WCID will transfer
title to any easements or other property rights, contract rights, permits, plans, files,
records, and appurtenances previously acquired by the WCID for or related to
16
A:wUSRRIO.FIN
(g)
Regional System Contracts 1, 2, 3, 8a, 8b, 10, 40, and 44 to Austin. The parties
agree to instruct the WCID that the easements, permits, plans, records, etc. for
Contracts 1, 2, 3, 8a, 8b, 10, 40, and 44 will be transferred to the sole ownership of
Austin by an instrument acceptable in form and content to Austin.
Contract 4 and Contract 5 - Phase I (16" Force Main).
(1)
(2) After such conveyance, Round Rock will not be responsible for the costs of
operation, maintenance, replacement, and decommissioning these facilities.
(3)
(h) Contract 5 -Phase I (24" Gravity Line), Contract 5 - Phase II, and Contract 6A.
(1
(2)
(3)
(4) These facilities shall be the Joint Wastewater Lines.
(5)
Pursuant to the Termination Agreement, the WCID will transfer title to all
wastewater facilities, easements, other interests in land, contract rights,
permits, plans, records, and all other rights and documents comprising or
appurtenant to these two contracts to the sole ownership of Austin. The
WCID will terminate the property insurance policy on the Onion Branch Lift
Station effective the date of transfer.
Austin intends to design and construct, at its sole expense, the upgrade to the
pumping capacity of the Onion Branch Lift Station from 1750 GPM to its
maximum capacity. Austin will determine the timing and sizing of the
upgrades. ,
As to Contract 6A, Austin has determined that since it released some of its
extraterritorial jurisdiction to Round Rock and Cedar Park, it has no need for
3 MGD of the capacity in the 60" wastewater line and associated easements
and appurtenances and declares that 3MGD portion of this line is surplus.
Contract 6A includes any manholes, stub -outs, 60" wastewater line, and
accessories constructed under Contract 9 that were installed to maintain,
connect, expand, or extend the 60" wastewater line identified in Contract 6A.
Pursuant to the Termination Agreement, the WCID shall transfer title to all
wastewater facilities, easements, other interests in land, contract rights,
permits, plans, records, and all other rights and documents comprising or
appurtenant to these contracts to Austin and Round Rock as tenants in
common. Each will own an undivided interest in the proportions reflected on
Exhibit A.
When the lines associated with Contracts 20, 20a, and 21 are constructed and
17
A:4WSRRIO.FIN
(i)
G)
Remaining Unbuilt Segment of Contract 5 - Phase II. Austin intends to design,
redesign, and construct, at its sole expense, the remaining approximately 514' segment
of Contract 5 - Phase II. Austin has the right to redesign this segment to make it
either a gravity line or force main. Upon completion of the design and construction
of the line, Austin will hold title to it in its own name.
Contract 9.
(1) Austin has determined that since it released some of its extraterritorial
• jurisdiction to Round Rock it has no need for the 36" wastewater line and
associated easements that are a part of Contract 9 and has declared this line
surplus.
(2)
(3)
are receiving Austin's flows that had previously gone through the lines
associated with Contract 5 - Phase I (24" Gravity Line) and Contract 5 -
Phase II, the gravity portion of Contract 5 - Phase I (24" Gravity Line) and -
Contract 5 - Phase II, also known as the Onion Creek Interceptor, Austin will
convey its interest in those contracts to Round Rock. This exchange is based
on the consideration that Round Rock will not charge Austin any
transportation fees for the use of its wastewater transportation lines.
Contract 9 does not include any manholes, stub -outs, 60" wastewater line, and
accessories constructed under Contract 9 that were installed to maintain,
connect, expand, or extend the 60" wastewater line, identified in Contract 6A.
Those facilities will be transferred to Austin and Round Rock in accordance
with the distribution of Contract 6A.
Pursuant to the Termination Agreement, the WCID will transfer title to all
wastewater facilities, easements, or other interests in land, contract rights, and
all other rights and documents comprising or appurtenant to Contract 9 to the
sole ownership of Round Rock.
(4) After such conveyance, Austin will not be responsible for the costs of
operation, maintenance, replacement, and decommissioning Contract 9.
(k) Agreed Disposition of Easements, Plans, and Records for Contracts 6, 20, 20a,
21, and WWTP Design - WCID. Pursuant to the Termination Agreement, the
WCID shall transfer title to any easements or other property rights, contract rights,
permits, plans, flies, records, and appurtenances previously acquired for or related to
these contracts to the joint ownership of Austin and Round Rock as tenants in
common by an instrument acceptable in form and content to both of them. Each will
own an undivided interest in the proportions reflected on Exhibit A.
18
AA USRR10FIN
(1) Contract 40. Title to the facilities, interests in land, plans, permits, records, and
appurtenances comprising Contract 40 will remain in Austin. Round Rock will not
be responsible for the costs of operation, maintenance, replacement, and
decommissioning of the facility.
(m)
Partition of Certain Regional System Equipment and Furniture. Certain
Regional System equipment and furniture in which the Participants formerly owned
an undivided interest pursuant to the Wastewater Disposal Agreement were used by
the WCID as Project Manager of the Regional System. The Participants further
acknowledge and agree that:
(1)
(2)
(3)
(3)
the Regional System equipment and furniture formerly used by the WCID are
identified on Exhibit F;
said furniture and equipment were equitably partitioned by agreement between
Austin and Round Rock under the Termination Agreement as reflected in
Exhibit F;
the equipment and furniture so partitioned and delivered to each Participant
will be considered the sole property of the recipient from the date of such
partition by Austin and Round Rock; and
(4) neither Austin nor. Round Rock will have any claim against the other for such
equipment or furniture so partitioned and distributed to the other or for the
value of it.
(n) Bank Accounts Transferred from the WCID. Certain bank accounts contain funds
previously deposited with the WCID for use in connection with the construction,
operation, and maintenance of the Regional System as described in the Wastewater
Disposal Agreement. Pursuant to the Termination Agreement, the Participants
require that the WCID assign and transfer the remaining balances in the following
accounts as follows:
(1) Regional Project Fund, Account No. 0001006485, 85% to Austin and 15%
to Round Rock.
(2) City of Round Rock Construction Fund, Account No. 0004259073, to Round
Rock.
City of Austin Construction Fund, Account No. 0004259065, to Austin.
(4) Regional Operating Account, Account No. 0001006493, to Austin.
19
A 1AUSRRIO.FIN
(0)
(c)
(5) Regional Money Market Account, Account No. 0004259057, to Austin.
Regional System Records. Pursuant to the Wastewater Disposal Agreement, the
WCID in the conduct of its role as Project Manager of the Regional System acquired
and maintained the Regional System records. The Participants acknowledge and agree
that:
(1)
(2)
(3)
the Regional System records maintained by the WCID are identified on
Exhibit F;
Each Participant will take possession of those records relating to those
components of the Regional System that they entirely own as identified in
Exhibit A, and will maintain those records;
Round Rock will take possession of the remaining records relating to
Regional System Assets that they own with Austin as identified in Exhibit A,
and will maintain those records;
(4) Both Participants will have access to these records at all times subject to a
reasonable notice to the other Participant to view the records; and
(5) Each Participant will be able to temporarily take possession of records
maintained by the other party and make copies of the records.
3.10 Agreement Regarding Assumption of Regional System Obligations.
(a) The Participants agree to be responsible for any obligations directly related to the
• assets they own, or will own, pursuant to implementation of the Termination
Agreement or as provided in this Agreement in proportion to their ownership
interests. In particular, Austin has agreed to assume the obligations relating to the
operation of the Onion Branch Lift Station, identified as Contract 4, according to the
terms of the Termination Agreement.
(b) The Participants agree that the obligations identified in paragraphs 1.05 (e) and 1.05
(k) of the Termination Agreement are responsibilities under this Agreement. Both
Participants have deposited the amounts required in paragraph 1.05 (e) of the
Termination Agreement in the WCID accounts.
The Participants further agree that under paragraph 1.05 (k) of the Termination
Agreement they will pay to the WCID on or before the termination date of the
Termination Agreement $92,598. Austin and Round Rock will each pay one -half of
this amount to the WCID.
20
AAWUSRRIOFIN
(d) -At the execution date of this Agreement, the WCID has not informed the Participants
of any other Regional System Obligations that are not associated with the items listed
in subsections (a), (b), and (c). In the unlikely event that there is any unknown
obligation they further agree that they will be responsible for any unpaid or unmet
obligations for those assets according to their respective ownership interests identified
in Exhibit A. If any obligation is not associated with any particular asset identified in
that Exhibit A, the Participants agree to share those obligations by splitting the
obligation in half, unless the Participants reach another agreement.
3.11 Deletion of Former Regional System Facilities Does Not Affect Agreed Adjustment. The
deletion of former Regional System Contracts 1, 2, 3, 4, 5 - Phase I (16" Force Main), 8a, 8b,
9, 40, 44, and the unbuilt 514' segment of Contract 5 - Phase II from the joint ownership will
not affect the agreed adjustment of the pro rata participation shares of the Participants set
forth on Exhibit A.
ARTICLE 4
TERMINATION AND ABANDONMENT OF
REGIONAL WASTEWATER SYSTEM
4.01 Regional Contracts Terminated. The Participants agree that upon the execution of this
Agreement, and the payment of all sums owed each other, that the following agreements are
terminated and abandoned: "
(a) the April 11, 1988 Wastewater Disposal Agreement between Austin, Round Rock,
and the WCID and all amendments to it. The Participants verify that the Wastewater
Disposal Agreement terminated the December 16, 1985, Interlocal Agreement
between the WCID, Austin, Round Rock, Williamson County Municipal Utility
District No. 2 and Williamson County Municipal Utility District No. 3 known as the
1985 Agreement;
(b) the January 30, 1989, Interim Wastewater Disposal Agreement between Austin,
Round Rock, and the WCID, acting pursuant to Section 10.02 of the Wastewater
Disposal Agreement; and
(c) the Interlocal Agreement Concerning Procurement of Design Phase Engineering ( "the
UDR Interlocal") between Austin and Round Rock effective April, 18, 1994.
4.02 No Abandonment of Wastewater Facilities, Easements, or Property Rights. Despite the
abandonment of planning for construction of the Regional System, nothing will be construed
as an intention by Austin or Round Rock, either jointly or severally, to abandon any
wastewater facility, easement, or other property rights, contract rights, or appurtenances
acquired for the Brushy Creek Regional Wastewater System.
21
AWUSRRIO FIN
ARTICLE 5
MANAGEMENT OF JOINT WASTEWATER LINES
5.01 Management of Joint Wastewater Lines by Round Rock. Until any interest in the Joint
System Lines are assigned to another entity, the Joint Wastewater Lines shall be managed by
Round Rock. Unless otherwise agreed to the successors, Round Rock's successor will
continue in the following responsibilities. Round Rock is responsible for the operation and
maintenance of the Joint Wastewater Lines according to the provisions of this Agreement.
The Participants will be responsible for their pro rata shares of the operation and maintenance
costs as provided in §5.03. As manager of the Joint Wastewater Lines, Round Rock will
perform the following functions on behalf of and for the benefit of both Participants:
(a) Exercise reasonable efforts to assure that the operation and maintenance, of the Joint
Wastewater Lines are conducted according to generally accepted utility practices, the
provisions of this Agreement, and the requirements of applicable law;
(b) Keep and maintain accurate records regarding monies received and expended
concerning the Joint Wastewater Lines;
(c) Provide for the preparation, filing, and maintenance of all necessary documents,
information, and reports necessary for proper reporting,to regulatory authorities
having jurisdiction over the Joint Wastewater Lines; and
(d) Provide for compliance with all federal, state and local laws, ordinances, and
regulations applicable to the Joint Wastewater Lines.
5.02 Allocation of Capacity and Costs. Each Participant will make available for inspection and
copying all meter readings, including the influent flows into Round Rock's West Plant and
wastewater flows from the Onion Creek Lift Station. The Participants agree not to use the
other's capacity in any Joint Wastewater Line. If the flows attributable to a Participant
exceed its allocated capacity in the Joint Wastewater Lines, that Participant will be
responsible for securing additional capacity, either through the terms of this Agreement or
through the construction of additional capacity.
5.03 Undivided Ownership in the Joint Wastewater Lines. Round Rock and Austin agree that
their undivided interests in the Joint Wastewater Lines are held as tenants in common. Except
as otherwise specifically agreed in writing by the Participants or as set forth in this
Agreement, Austin and Round Rock will be responsible for the cost of operating and
maintaining its respective interests in the Joint Wastewater Lines according to the adjusted
participation shares in the Joint Wastewater Lines described in Exhibit A.
22
A V.USRRIO.FIN
ARTICLE 6
GENERAL PROVISIONS
6.01 General Provisions. The following general provisions will apply to this Agreement:
(a)
Rates, Fees and Charges. Each Participant will be solely responsible for setting its
wastewater rates, fees, and charges in accordance with applicable law. The
Participants will cooperate at all times in the proper recordation and documentation
of Joint Wastewater Lines Costs in aid of said purpose. •
(b) Payment From Current Revenues, Other Lawful Funds. According to Texas
Govt. Code, Chapter 791, a Participant obliged to provide funding or to make
payment hereunder will provide for the payment of the same from current revenues
or other funds of said Participant lawfully available for this purpose.
(c) Entire Agreement. This Agreement contains the entire agreement of the parties and
supersedes all prior and contemporaneous representations and understandings,
whether oral or written, respecting the subject matter hereof.
(d) Amendments. Any amendment hereof must be in writing and signed by the
authorized representatives of Austin and Round Rock following approval of the
amendment by the City Councils of both Austin and Round Rock.
(e) Interpretation and Authority. The parties acknowledge that they enter into this
Agreement pursuant to the authority of Texas law including, without limitation, the
authority conferred in Texas Govt. Code, Chapter 791, and Texas Local Govt. Code
§402.001. Except as set forth above, they will not construe this Agreement to breach,
modify, amend, supplement, or otherwise alter the provisions of any other agreement
entered by and between Austin and Round Rock.
(f) Applicable Law. This Agreement will be construed under and according to Texas
law.
Assignment. Either Participant may assign its rights under this Agreement after
notifying the other Participant. Assignees will be fully responsible for compliance with
this Agreement. ,
(h) Other Instruments and Actions. The parties hereto agree that they will take such
other and further actions and execute and deliver such other and further consents,
authorizations, instruments or documents as are necessary or incidental to effectuate
the purposes and intent of this Agreement. -
(g)
23
A.■USRRIOFIN
(i)
(i)
24
No Third Party Beneficiaries. The WCID is the only third party beneficiary to this
Agreement. The assumption of the obligations identified in §3.1O is specifically
provided for the benefit of the WCID. Nothing herein will ever be construed to
confer upon any person other than the parties hereto any rights, benefits or remedies
under or by reason of this Agreement nor will any third person be considered a third
party beneficiary hereof.
No Joint Venture, Partnership, Agency. This Agreement will not be construed in
any form or manner to establish a partnership, joint venture, or agency, express or
implied, nor any employer - employee or borrowed servant relationship by and among
the parties hereto.
(k) Force Majeure. If by reason of Force Majeure as hereinafter defined, any party will
be rendered wholly or partially unable to carry out its obligations under this
Agreement, then such party will give written notice of the particulars of such Force
Majeure to the other party or parties within a reasonable time after the occurrence of
it. The obligations of the party giving such notice, to the extent affected by such Force
Majeure, will be suspended during the continuance of the inability claimed and for no
longer period, and any such party will in good faith exercise its best efforts to remove
and to overcome such inability. The term "Force Majeure" as utilized herein will mean
and refer to acts of God; strikes, lockouts or other industrial disturbances; acts of
public enemies; orders of the government of the United States, the State of Texas, or
any other civil or military authority; insurrections; riots; epidemics; landslides;
earthquakes, lightning; fires; hurricanes, storms, floods, washouts, droughts or other
natural disasters; arrests; disturbances; explosions; breakage or accidents to
machinery, pipelines, or canal; or other causes not reasonably within the control of the
party claiming such inability.
(1) Severability. If any word, phrase, clause, sentence, paragraph, section or other
portion of this Agreement is held to be invalid for any reason by a court or agency of
competent jurisdiction, the remainder of this Agreement will be construed as if such
invalid portion had never been contained herein and the provisions of this Agreement
are expressly deemed severable for this purpose.
(m) Venue. The venue for any suit arising from an action brought by Austin will be in
Williamson County. The venue for any suit arising from an action brought by Round
Rock will be in Travis County.
(n) Duplicate Originals. The Participants may execute this Agreement in duplicate
originals each of equal dignity.
A:WUSRRIO FIN
6.02 Effective Date. This Agreement will be effective on the last date of due execution by the
authorized representatives of both Austin and Round Rock.
IN WITNESS WHEREOF, the authorized representatives of Austin and Round Rock have
executed this Agreement on the date(s) set forth below.
APPROVED AS TO FORM:
Assistant C Attorney
ATTEST:
l e2A-- Joanne Land, City Secre
APPR DASTOFO
60.1L
City Atto ey
25
CITY OF AUSTIN:
By: 414-7-
Name: andy oss, P.E.
Title: Director, Water and Wastewater Utility
City of Austin
Date: 97/9r /i
CITY OF ROUND ROCK:
By: /,la'
Name: C arl ( Culpepper
Title: Mayor
Date: 4-i4 -14
nwvSRRIo.FIN
THE STATE OF TEXAS
COUNTY OF TRAVIS
JANITH KAY GALBWUTH
N My commlaslo Wee
SgpT,24,1997
1'HE STATE OF TEXAS )
26
REVIEWED AND APPROVED:
BRUSHY CREEK WATER CONTROL
AND IMPROVEMENT DISTRICT IIII .1�
OF WILLIAMSON dt `!
COUNTIES:ff
l0
By:
Name:
Title:
Date:
Printed /Typed Name of Notary
Notary Publi
Printed /Typed Name of Notary
A- S 3-
THIS INSTRUMENT was acknowledged before me on this (day of 1996, by Randy
Goss, P.E., as Director of the Water and Wastewater Utility of the City of A still, a Texas municipal
corporation, on behalf of said municipal corporation.
My Commission Expires:
COUNTY OF WILLIAMSON )
THIS INSTRUMENT was acknowledged before me on this f 9 day of 1996, by
Charles Culpepper, Mayor of the City of Round Rock, a Texas municipal corpora ion, on behalf of
said municipal corporation.
�1i1 J
tate of Texas
My Commission Expires:
A.WUSRRIO FIN
EXHIBIT
PARTICIPANT'S OWNERSHIP AND RESERVED CAPACITY THEREIN
Component.
City City of
of Austin Round Rock
Contracts I, 2, and 3 (48" - 60" Interceptors) 100% 0%
(Existing easements, permits, plans
and records only)
Contract 4 (Onion Branch Lift Station) 100% 0%
Contract 5 - Phase 1 (16" Force lvlain) 100% 0%
Contract 5 - Phase 1(24" Gravity Line)* 67% 33%
Contract 5 - Phase 1I (24" Gravity Line)* 67% 33%
Contract 5 - Phase II (unbuilt segment) ' 100% 0%
Contract 6 (60" wastewater line) 62.2% 37.8%
(Existing easements, permits, plans
and records only)
Contract GA (60" gravity line) 70% 30%
(Round Rock retained initial 10.1% of capacity
therefore ultimate capacity division is
Austin 62.22 %, Round Rock 37.78 %)*
Contract 8A, 8B (Davis Spring Lift Station 100% 0%
30" wastewater interceptor)
Contract 9 (36" wastewater line) 0% 100%
Contract 9 (60" wastewater line, with same 70% 30%
provisions as Contract GA)
27
A.tnusaaIO.FIN
EXHIBIT A -- continued
PARTICIPANT'S OWNERSHIP AND RESERVED CAPACITY THEREIN
Component:
City City of
of Austin Round Rock
Contracts 20, 20A, and 21 (60" and 66" 85% 15%
wastewater interceptor, 78" tunnel and 84"
wastewater interceptor. Existing easements,
permits, plans and records only)
Contract 40 (Lake Creek Lift Station and 48" 100% 0%
wastewater line)
Contract 44 (36" force main. Existing easements, 100% 0%
permits, plans and records only)
Old Contract 10 WWTP (Superseded Plans 100% 0%
and records for abandoned 10 MGD WWTP
concept only)
WWTP Design - WCID 50% 50%
WWTP Design (11.8 MGD First 36% 64%
Phase of Regional System Treatment Plant,
based on HDR Interlocal percentages)
WWTP Common Facilities 0% 100%
Regional System Plant Site 100% 0%
(Austin Tract Only)
Regional System Plant Site 0% 100%
(Round Rock Tract Only)
Wastewater Discharge Permit 50% 50%
* - Joint Wastewater Lines Components
28
A\AUSRRIO FIN
EXHIBIT B
EXPENDITURES ON REGIONAL SYSTEM
BY ROUND ROCK AND AUSTIN
29
A WUSRR10FIN
EXHIBIT B
City of Austin, Texas ' 19- Sep -96
Water and Wastewater Utility UNAUDITED
BRUSHY CREEK REGIONAL WASTEWATER SYSTEM EXPENDITURES
Allocation of Expenditures Incurred by Austin and Round Rock as of Sept. 1995
Other 100% -
Description Engineering Construction Easements Project Costs Total COA CORR
Expenditures thru BCWCID: 85.00% - 15.00%
Contracts 1, 2, and 3 $283,721 $0 $84,626 $48,421 $416,768 5354,253 $62,515
Contracts 4 & 5 -I(LS & 16'FM) 89,776 547,939 26,778 5108,835 773,328 $657,329 5115,999
Contracts 5.1(24' Gravity Line) 12,085 73,933 3,605 $14,680 104,303 588,657 $15,645
Contracts 5 -11 70,785 431,761 $21,113 $85,767 609,426 $518,012 $91,414
Contract 6a 0 2,300,119 0 $392,548 2,692,667 $2,288,767 $403,900
Contract6 79,930 0 23,841 513,641 117,412 599,800 $17,612
Contract8 156,600 0 46,709 526,726 230,035 5195,530 534,505
Contract 9 0 840,333 0 $143,415 983,748 $836,186 $147,562
Contracts 20, 20a, and 21' 829,859 0 247,523 $141,627 1,219,009 $1,036,158 $182,851
Contract 10 860,668 0 0 $146,885 1,007,553 $856,420 $151,133
WWTP Design - WCID 155,630 0 0 $28,560 182,190 $154,862 $27,329
Total Paid thru BCWCID: 52,539,054 $4,194,085 5454,194 81,149,107 $8,336,440 $7,085,974 $1,250,465
Direct Expenditures by COA: 100% 0%
Contract 3 Redesign $8,000 $0 50 $0 $8,000 $8,000 $0
WWTP Design 772,092 0 0 0 772,092 772,092 0
WWTP Land 461,868 0 0 0 461,868 461,868 0
Lake Creek Facilities 0 5,063,809 0 0 5,063,809 5,063,809 0
Total Incurred Directly by COA: $1,241,960 $5,063,809 $0 50 $6,305,769 56,305,769 $0
Direct Expenditures by CORR: 0% 100%
WWTP Land $373,590 $0 $0 $0 $373,590 50 $373,590
Common Facilities - 0 1,200,000 0 0 1 200 000 0 1,200,000
Total Incurred Directly by CORR: $373,590 $1,200,000 $0 $0 $1 573,590 $0 $1,573,590
Total Project Expenditures Incurred: $4 154 604 $10 457,894 $454,194 $1,149,107 $16,215,799 $13,391,743 $2,824,055
NOTES:
A, Total Costs Allocated Between COA and CORR Does Not Include Project Costs Patd by MUDs.
B. Other Project Costs Incurred by BCWCID:
1. Original Facilities Planning $852,856
2. Facilities Planning Updates 72,916
3. Legal Fees 603,713
4. Project Organization & Admin. 806,238
5. Contnbutions from MUDS: (1,186,616)
Total Other Project Costs Allocated: $1,149,107
C. Easement Costs Incurred by BCWCID:
1. Easement Services $214,989
2. Easement Acquisitions 239,205
Total Easement Costs Allocated: $454,194
D. Base Costs for Easement Allocations: $1,522,756
E. Base Costs for Other Project Cost Allocations: $5,546,523
EXHIBIT C
ALLOCATION OF TOTAL EXPENDITURES
REGIONAL SYSTEM
30
A:WUSRRIO.FIN
OBea ipb l
Wed Expendl res by CORR:
VAMP Lend 5373590 50 m
el
Carm Feoldia8 0 120808 0
Total Waxed Dlrecyy by CORR: 0373,590 $120078 5
Total Project Expen0Ues Incurred: 04.154,604 610,457704 $454.194 $1.149.107 916215.799
80111317 C
Cdy of Austin. Texas 19-Sep-98
Water and Wastewater May UNAUDITED
BRUSHY CREEK REGIONAL WASTEWATER SYSTEM EKPENDRIIRES SII000STFI1
Poposed 08OOaaon 01 Total Expead1u1es Imuned As of Sept 1995
LCRA IO Pr0v0e
Other Proposed M000s001 Proposed Shares GatenNar Cash
E ,000000 Cau0n Son Easements Protect Costs Total COA CORK COA CORR Tn Gy of rotate U(y03
E1pen6Wtos Sou BCWC10:
Contracts 1. 2, and 3 $263,721 SO 536,826 548.421 5416,768 1000096 000% 0418,768 SO 5418768
Contracts 485- 1(LB816 89,778 547,939 28.778 108,835 773.328 100.0095 00011. 773,328 0 773,328
Contracts 54(24• Gmvdy Line) 12085 73,933 3,605 14,880 104, 303 87.00% 3300% 69,883 34,420 69,883
Contacts 541 70.785 431,781 21, 113 65,767 609,428 870096 3300% 408,315 201,111 408,315 '
Contract (10 0 2,330,119 0 392548 2,892,687 7000% 3000% 1,884,887 807,300 1,884,887 WCIDYOwnerehp stale o183% of Total Line COpaolr Ao95n sells staples 3 MGD to Round
Contract 8 79033 0 23,841 13,841 117,412 8220% 37.80% 73,030 44,382 73,030
Contract 8 - 156,678 0 48,709 28,726 230,035 1000096 000% 230,035 0 230735
Contract 9 0 640,333 0 143 ,415 983,748 0.60% 100.00% 0 983,748 0 Surplus - To b0 Purchased by Round R k
Contr 1.20.20a. and 21 829,859 0 247,523 141,827 1,219,009 8500% 15.895 1738,158 182,851 1,038,158
Contact 10 800,600 0 0 148885 1,87,5553 100 00% 0.096 1707,553 0 1707,553
YONTP Design -WCID 155,830 0 0 2858 182190 5000% 50.00% 91,85 81,095 01095
Total Paid Ore BCWC0. 52,539,054 $4 101,065 $454184 01 149 107 $8338.440 55,991,032 $2.345 407 55991032
Duel Eopalddures by COA:
Contract 3 Redesign $6730 m 50 SO 5808 1800% 0.096 50,08 m 33000 Cal6eoned on LCRA enteog MOD Agreement to pay Austin
WWTP Design . - 772792 0 0 0 772,82 10000% 00096 772,392 0 9772792 Round Rock Owes 401b084% of Bon Amount (See Note No. 1)
VIWTP Land 481,888 0 0 0 451,885 1000096 000% - 461,068 0 0681768 Appraised Value to be pad by LCRA afec Agmoment
Lake Creek 9e00es 0 5783,89 0 0 5783,88 1800% 000% 5783,88 0
Total Inured Directly by COA 51241,06(1 5 SO 38 98,305,78 56 305 709 50 $1241,960
SO 5373,590 000% 1800% SO $373,58
0 1,200,000 000% 180096 0 1,200,000
50 91,573,590
00 91573,58
A49ume3 LCRA rbrMUrsem00110 Round Rods
Assumes LCRA reimbursement to Round Rock
Total Proposed 80ocaled Cush: - 512295701 S3, 913,997 57232,992 Amount may be reduced by Cedar Park payment to Aeon
Total Investments Made T0Oate: 913,391,743 52724,055
Amounts Due From (To): (51,0947421 01,094,942 See Nola No. 1
11010101: Rand Reck needs lo pay Mahn 9494,139 Nedddbnb 51794,942
EXHIBIT D
MAP OF REGIONAL SYSTEM COMPONENTS
31'
A.wusRRIOFIN
' EXHIBIT E
REGIONAL SYSTEM COMPONENTS
1. A treatment plant site: consists of two tracts containing a total of approximately 74.338
acres located in the Joseph Marshall Survey, Williamson County, Texas identified by the
Participants as the agreed location for construction of the Regional System Treatment Plant.
The treatment plant site consists of the Austin Tract and the Round Rock Tract.
2. Contract 1: consisting of approximately 10,160 linear feet of 36" through 42" wastewater
interceptors and appurtenances extending from Cedar Park to Avery Lake. No construction
has occurred on this contract. These assets include design reports, drawings, plans,
specification, permits, and easements.
3. Contract 2: consisting of approximately 10,835 linear feet of 42" through 48" wastewater
interceptors and appurtenances extending from Avery Lake to Brushy Creek. No
construction has occurred on this contract. These assets include design reports, drawings,
plans, specification, permits, and easements. -
4. Contract 3: consisting of approximately 10,254 linear feet of 48" through 60" wastewater
interceptors and appurtenances extending from Brushy Creek to Dry Fork. No construction
has occurred on this contract. These assets include design reports, drawings, plans,
specification, permits, and easements.
5. Contract 4: consisting of the Onion Branch Lift Station, related appurtenances, easements,
access road, 12" Force Main leaving the Lift Station, and approximately 227' portion of 16"
Force Main. The WCID has acquired this facility under the Wastewater Disposal Agreement.
6. Contract 5 - Phase I (16" Force Main): consisting of approximately 3,055 linear feet of
16" Force Main and associated easements and appurtenances commencing at the terminus of
Contract 4. The WCID has acquired this facility under the Wastewater Disposal Agreement.
7. Contract 5 - Phase I (24" Gravity Line): consisting of approximately 1,258 linear feet of
24" wastewater line and associated easements starting at a manhole of Round Rock's 27"
wastewater line (also known as "Onion Creek Interceptor ") on the southern right -of -way of
Woods Boulevard in Round Rock. The WCID has acquired this facility under the
Wastewater Disposal Agreement.
8. Contract 5 - Phase 11: consisting of approximately 7,348 linear feet of 24" wastewater line
and associated easements and appurtenances commencing at the upstream manhole of
Contract 5 - Phase I (24" Gravity Line). The WCID has acquired this facility under the terms
of an Agreement Regarding Onion Creek Interceptor Phase II Wastewater Line between the
WCID, Austin, Round Rock, Williamson Country MUD No. 9, and Lomas Land, Inc. dated
February 1, 1989, and the Wastewater Disposal Agreement. This contract also consists of
32
AAAUSRRIO FIN
approximately 524 linear feet of 24" wastewater line and associated easements and
appurtenances commencing at the end of the existing 24" wastewater line constructed for
Contract 5 - Phase II. This segment has not been constructed.
9. Contract 6: consisting of approximately 6,000 linear feet of 60" wastewater line and
associated easements and appurtenances commencing at the uppermost manhole of Contract
6A. No construction has occurred on this contract. These assets include design reports,
drawings, plans, specification, permits, and easements.
10. Contract 6A: consisting of approximately 9,860 linear feet of 60" wastewater line and
associated easements and appurtenances commencing at the Lift Station of the Regional
System Treatment Plant. The WCID has acquired this facility under the Wastewater Disposal
Agreement. This contract includes those portions of Contract 9 including any manholes, stub -
outs, 947 linear feet of 60" wastewater line, and accessories that were installed to maintain,
connect, expand, or extend the 60" wastewater line identified in Contract 6A.
11. Contract 8a: consisting of a 3,600 GPM lift station, and 18" force main and appurtenances
identified as the "Davis Spring Lift Station." No construction has occurred on this contract.
These assets include design reports, drawings, plans, specification, permits, and easements.
12. ' Contract 8b: consisting of approximately 5,375 linear feet of 30" wastewater interceptor and
appurtenances commencing at Contract 2 and extending to the force main of the Davis Spring
Lift Station. No construction has occurred on this contract. These assets include design
reports, drawings, plans, specification, permits, and easements.
13. Contract 9: consisting of approximately 4,000 linear feet of 36" wastewater line and
associated easements commencing at the uppermost manhole of Contract 6A. The WCID
has acquired this facility under the Wastewater Disposal Agreement. This contract excludes
those portions of Contracts 9 including any manholes, stub - outs, 947 linear feed of 60"
wastewater line, and accessories that were installed to maintain, connect, expand, or extend
the 60" wastewater line identified in Contract 6A.
14. Contract 10: consisting of a regional wastewater treatment plant and appurtenances, the first
phase of which the Participants initially envisioned to have a treatment capacity of 10 MGD
with successive expansions to 50 MGD. No construction has occurred on this contract.
These assets include design reports, drawings, plans, specification, permits, and easements.
33
A:\ AUSRRIO,FIN
15. Contract 20: consisting of approximately 9,167 linear feet of 60" and 66" wastewater
interceptor and appurtenances extending from the Hairy Man Road Low Water Crossing to
the Georgetown Railroad right -of -way. No construction has occurred on this contract.
These assets include design reports, drawings, plans, specification, permits, and easements.
16. Contract 20a: consisting of approximately 2,607 linear feet of 60" wastewater interceptor
and appurtenances extending from Dry Fork to the Hairy Man Road Low Water Crossing.
No construction has occurred on this contract. These assets include design reports,
drawings, plans, specification, permits, and easements.
17. Contract 21: consisting of approximately 8,238 linear feet of 78" tunnel and 84" wastewater
interceptor and appurtenances extending from the Georgetown Railroad right -of -way to the
Round Rock 3.0 MGD West Wastewater Treatment Plant. No construction has occurred on
this contract. These assets include design reports, drawings, plans, specification, permits, and
easements.
18. Contract 40: consisting of the Lake Creek Lift Station and appurtenances located on the
northern bank of Lake Creek west of Parmer Lane in Williamson County together with a 48"
wastewater line commencing upstream of U.S. Highway 183 paralleling Lake Creek to the
Lake Creek Lift Station.
19. Contract 44: consisting of a 36" force main and appurtenances generally located along
Parmer Lane commencing at the uppermost manhole of Contract 8b and extending to the
Lake Creek Lift Station. No construction has occurred on this contract. These assets include
design reports, drawings, plans, specification, permits, and easements.
20. Wastewater Discharge Permit: the discharge permit secured from the TNRCC or the United
States Environmental Protection Agency or its successor agency permitting the discharge of
treated wastewater effluent from the Regional System Treatment Plant.
21. WWTP Design - WCID: the designs by HDR for the WCID for a regional wastewater
system WWTP. These designs were not part of the HDR Interlocal.
22. Original Facilities Planning and Updates: the initial engineering and feasibility studies
identified as the Regional System Conceptual Plan.
23. Legal Fees: those fees the Participants reimbursed the WCID for legal services that included
the drafting of the 1985 Agreement, Wastewater Disposal Agreement, and the Interim
Agreement.
24. Project Organization and Administration Costs: the costs of the WCID to manage the
Regional System.
34
n AVSRRIO.FIN
EXHIBIT F
REGIONAL SYSTEM FURNITURE AND EQUIPMENT
DISTRIBUTED TO AUSTIN AND ROUND ROCK
35
A•WUSRRIO FIN
DATE: September 10, 1996
SUBJECT: City Council Meeting, September 12, 1996
ITEM: 10.D Consider a resolution authorizing the Mayor to
execute an Interlocal Agreement for Assumption
of Obligations and Division of Assets of the
Brushy Creek Regional Wastewater Disposal
System, and for Interim Operation and
Maintenance of Joint Wastewater System
STAFF RESOURCE PERSON: Jim Nuse and /or Steve Sheets
STAFF RECOMMENDATION: Approval of the resolution
As part of the termination of the regional wastewater agreement
with the WCID, Austin and Round Rock need to agree on the division
of the regional assets and the assumption of obligations. This
agreement provides for such division and assumption of obligations.
/el•
•
By:
ASSUMPTION OF REGIONAL SYSTEM OBLIGATIONS OF
THE BRUSHY CREEK WATER CONTROL AND IMPROVEMENT
DISTRICT NO. 1 OF WILLIAMSON AND MILAM COUNTIES
WHEREAS, the Brushy Creek Water Control and Improvement
District No. 1 of Williamson and Milam Counties ( "District "), the
City of Austin ( "Austin ") and the City of Round Rock ( "Round Rock ")
have entered into that one certain Agreement For Termination of
Brushy Creek Regional Wastewater Disposal Agreement ( "Termination
Agreement "), as amended; and
WHEREAS, §1.05(i) of the Termination Agreement provides that
Austin and Round Rock will deliver to the District a document
agreeing to assume the District's Regional System Obligations;
Now Therefore, Austin and Round Rock agree as follows:
In consideration of the transfer by the District to Austin and
Round Rock of the Regional System Assets and other benefits to be
derived from the Termination Agreement, Austin and Round Rock agree
to jointly and severly assume all of the District's Regional System
Obligations, as that term is defined in the Termination Agreement.
This assumption shall not be construed to affect or modify the two
cities' obligations pursuant to §1.08 of the Termination Agreement.
This assumption agreement shall be effective from and after
the Termination Date, as that term is defined in the Termination
Agreement.
IN WITNESS WHEREOF, the authorized representatives of the
parties have executed this document on the date(s) set forth below.
ATTEST: CITY OF AUSTIN:
James E. Aldridge
City Clerk
C:\WPM. ACITY lV VIESICuaAASSUxrr:.PD /c,,
I.
II.
Name:
Title:
Date:
1
Y`
APPROVED AS TO FORM:
Assistant City Attorney
ATTES,:
By:
Stephan L. Sheets,
City Attorney
mu) ictm
oanne Land
'ty Secretary
APPROVED AS TO FORM:
Name:
Date:
2
F OUND ROCK:
Charles C0t5per, Mayor