Contract - Brushy Creek MUD & BC Jehova's Witnesses - 7/24/2014INTERIM SERVICE AGREEMENT
(Brushy Creek Congregation of Jehovah's Witnesses)
STATE OF TEXAS §
§ KNOW ALL BY THESE PRESENTS:
COUNTY OF WILLIAMSON §
This Interim Service Agreement (the "Agreement") is entered into by the City of
Round Rock, Texas, a home rule municipality (the "City"), Brushy Creek Municipal
Utility District, a Texas conservation and reclamation district (the "District") and Brushy
Creek Congregation of Jehovah's Witnesses ("Owner") as of the 24thday of July, 2014
(the "Effective Date"). The City, District and Owner may be referred to herein individually
as a "Party" and collectively as the "Parties." References to a Party shall mean and include
that Party, and its authorized agents, successors and assigns.
Recitals
WHEREAS, the City and the District are each a "retail public utility" as defined in
Section 13.002 of the Texas Water Code and Chapter 291 of Title 30 of the Texas
Administrative Code; and
WHEREAS, the Texas Commission on Environmental Quality ("TCEQ") has issued
Certificate of Convenience and Necessity ("CCN") Nos. 11047 and 20421 granting the City
the exclusive right to provide retail water and wastewater utility services for certain areas
within Williamson County, Texas as more particularly described in said CCNs (the "City
CCN Territory"); and
WHEREAS, Owner owns that certain real property more particularly described in
Exhibit "A" attached hereto (the "Property");
WHEREAS, the Property is located within the City CCN Territory, but the City does
not currently own or operate water or wastewater facilities in proximity the Property;
WHEREAS, the District currently provides retail water services to a congregation
building and duplex located within the Property (the "Existing Improvements");
WHEREAS, Owner has requested that the District provide retail wastewater service,
in addition to water service, to the Existing Improvements, and Owner has further
requested that the District provide retail water and wastewater services to a proposed
additional congregation hall (the "Proposed Improvements") that would be constructed by
Owner within the Property; and
WHEREAS, the Parties desire to enter into this Agreement to provide for the District
to provide retail water and wastewater services to the Existing Improvements and to the
R-2014-1593
Proposed Improvements on an interim basis until such time as the City extends retail water
and wastewater services to the Property.
NOW, THEREFORE, for and in consideration of the promises, covenants and
agreements set forth herein, the receipt and sufficiency of which are hereby acknowledged,
the City, District and Owner hereby agree as follows:
AGREEMENT
I.
TERMS FOR INTERIM RETAIL WATER AND WASTEWATER SERVICES
1.01 City Consent. Subject to the terms and conditions set forth in this Agreement, the
City consents to the provision of interim retail water and wastewater services by the
District to the Property.
1.02 City Service Rights. The Parties agree that the City reserves and is not transferring
or assigning any of its rights to provide permanent retail water and wastewater utility
services to the Property. The District and Owner acknowledge and agree that the City
may terminate the interim utility services furnished by the District, and commence the
provision of retail water and wastewater services by the City, at any time in accordance
with the provisions of Article II below.
1.03 District Service.
(a) Subject to the payment of all required costs and fees and compliance with all
rules and policies of the District and subject to the terms of this Agreement, the District will
make available interim retail water and wastewater services to the Property until such
time as the City commences the provision of retail water and wastewater services to the
Property in accordance with Article II below, or until such time as any regulatory authority
with jurisdiction orders the District to discontinue the provision of retail services to the
Property.
(b) The District agrees that it shall not seek to decertificate the Property from
the City's CCN Area, or seek dual certification for the Property.
1.04 Retail Rates. Owner shall pay the standard retail water and wastewater fees,
charges and rates for out -of -District service established by order of the Board of
Directors of the District from time to time. Upon termination of interim service by the
District, Owner shall pay the retail water and wastewater fees, rates and charges
established by ordinance from time to time by the City Council of the City.
1.05 Monthly Billing. The District shall be solely responsible for the assessment and
collection of District rates, fees and charges for interim water and wastewater services
provided by the District to the Property for so long as the District provides interim retail
water and wastewater services to the Property under the terms of this Agreement. Upon
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the commencement of permanent retail water and wastewater services by the City, the
City shall be solely responsible for the assessment and collection of all City rates, fees and
charges for City retail water and wastewater service furnished within the Property.
1.06 Coordination of Activities. The City and the District agree to communicate all
information reasonably necessary to the accomplishment of the purposes of this
Agreement and to coordinate their respective activities at all times to provide for the
efficient delivery of interim retail water and wastewater utility services to the Property
and for the transition to permanent retail water and wastewater services by the City.
1.07 Limitation on Service Authorization. The Parties agree that this Agreement is
only for the District's provision of interim retail water and wastewater utility services to
the Property. Except as provided by separate written agreement, neither the City nor the
District shall provide retail water or wastewater services to any other real property in the
other Party's authorized service territory.
II.
TERMINATION OF INTERIM SERVICE
2.01 Duration of Interim Service. The District agrees to provide interim retail water
and wastewater utility services to the Property until the City commences the provision of
retail water and wastewater services to the Property or until such time as a government
entity with jurisdiction orders the District to discontinue service, whichever is first. At
such time as the City elects to provide both water and wastewater services to the
Property, it shall provide not less than thirty (30) days prior written notice to the District
of the City's intent to commence permanent retail water and wastewater services to the
Property (the "Service Notice"). The Service Notice shall specify the date on which the
City intends to commence the provision of retail water and wastewater services to the
Property (the "Transition Date").
2.02 Proceedings upon Termination. After the City submits to the District the Service
Notice and except as otherwise agreed by the City and the District, the District shall
discontinue the provision of interim retail water utility service to the City CCN Area as of
the Transition Date, and the City shall commence the provision of retail water and
wastewater utility services to the Property utilizing City facilities on such date. To
provide for the transition to permanent City retail water and wastewater services in an
orderly manner, the Parties agree as follows:
(i) the City and District shall coordinate the disconnection of the
Property from the District's water and wastewater system and the connection
thereof to the City System in such a manner as to minimize the disruption of
service;
(ii) in aid of the transition to permanent City service, the City shall
have the right to inspect all points of connection, and all related service lines and
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appurtenances utilized to provide District service to the Property at any
reasonable time upon prior notice;
(iii) in aid of the transition to permanent City service, the District
shall furnish billing and customer account information for the Property upon
written request of the City;
(iv) on the Transition Date, the District shall read the water meter
utilized to provide service to the Property for purposes of sending a final bill to
Owner;
(v) upon termination of interim service by the District, the City
shall be responsible for all aspects of providing permanent retail water and
wastewater services to the Property in accordance with the City's policies and
ordinances;
(vi) in connection with termination of interim service by the
District, Owner shall promptly execute any service applications required by the
City and shall otherwise comply with all requirements for City service;
(vii) within ninety (90) days after termination of interim service,
the District shall forward to the City any deposits held by the District for the
Property, which have not been applied by the District to Owner's then outstanding
bills; and
(viii) the District shall be entitled to all revenues for water and
wastewater services furnished by the District to the Property while it is connected
to the District's water and wastewater system. Accordingly, following the
commencement of services by the City, the City shall reasonably cooperate with
the District to collect any remaining revenues due the District, including, to the
extent authorized by applicable law, termination of water service to the Property if
Owner fails to provide payment for any interim services rendered by the District
prior to the Transition Date.
2.03 Disconnection of District Facilities.
(a) The District's water and wastewater facilities used to provide interim retail
services to the Property shall be physically disconnected before the City system is
connected to the Property. The City and District shall cooperate as reasonably necessary to
disconnect the Property from the District water and wastewater system on the interim
service termination date and connect the Property to the City system.
(b) The District agrees that it will not charge Owner any costs or fees in
connection with the termination of water and wastewater service to the Property, but
Owner's obligation to provide payment for services rendered by the District prior to such
termination shall continue after disconnection.
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III.
PROVISION OF ADDITIONAL SERVICES
3.01 General. The District will make retail wastewater service available to the Existing
Improvements, and will make water and wastewater services available to the Proposed
Improvements, in accordance with the terms and conditions set forth in this Agreement,
and all rules and policies of the District applicable to the extension of service to new
connections. Such additional water and wastewater services to be made available to the
Existing Improvements and New Improvements is hereafter referred to collectively as the
"Additional Services."
3.02 Maximum Service Level. The Parties agree that the out -of -district service to the
Property, upon completion of construction of the Additional Facilities (as defined below),
shall not exceed 16 Living Unit Equivalents ("LUEs") as determined by the District's
design criteria and standards.
3.03 Design and Construction. Owner shall be responsible for designing and
constructing, at its sole cost and expense, all water and wastewater facilities, equipment,
and appurtenances necessary for the provision of Additional Services by the District to
the Property including any internal service lines and plumbing improvements
(collectively, the "Additional Facilities"). Owner, at Owner's sole cost and expense, shall
engage the services of a registered professional engineer licensed to practice in the State
of Texas to design the Additional Facilities, which design shall be subject to the District's
review and approval prior to construction. The contractor retained by Property Owner
for the purpose of constructing the Additional Facilities, and the proposed form of
construction contract, shall be subject to the District's prior review and approval, which
will not be unreasonably withheld.
3.04 Easements. In the event the District determines that any easements are required
for the Additional Facilities, Owner shall acquire, at the Owner's sole expense, all
easements required for the lawful construction, operation, and maintenance of the
Additional Facilities. Such easements shall designate the District as the grantee
thereunder, shall be acceptable in form and content to the District, and shall be submitted
to the District for review and approval before the execution and recording of same.
3.05 Payment of Costs and Fees. Owner will pay promptly all costs and expenses for
the design and construction of the Additional Facilities. Owner will be responsible for all
District charges and fees, including plan review fees, inspection fees, connection fees and
all other fees for services performed by the District that are related to the design and
construction of the Additional Facilities and receipt of out -of -District service from the
District.
3.06 Review of Construction Plans. Plans and specifications for the Additional
Facilities will be submitted to review and approval by the District prior to awarding a
contract for construction. In the event that the plans are not approved, the District agrees
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to provide written comments on the plans within thirty (30) days from the date of
submission by the Owner.
3.07 Construction Standards. All Additional Facilities shall be constructed in
accordance with the design criteria, policies, standards, and specifications for the same
established by the District, and to the extent applicable, the TCEQ and other
governmental entities with relevant jurisdiction
3.08 Internal Connections and Plumbing. The District shall inspect and authorize all
retail water and wastewater connection(s) within the Property in accordance with the
District's policies and rules. Connections to internal lines within the Property shall be
made by state licensed plumbers retained by the Owner. All plumbing must be inspected
by a licensed plumbing inspector in accordance with the District's plumbing inspection
rules and policies. The District perform the physical connection of all internal facilities to
the District's system, at Owner's sole cost and expense.
3.09 Ownership, Operation, and Maintenance of Facilities. Upon the completion of
construction thereof by Owner in accordance with the approved plans and specifications,
and final inspection and acceptance thereof by the District:
(i) Any Additional Facilities installed within public rights-of-way
or easements dedicated and accepted for public use shall be dedicated to the
District for ownership, operation, and maintenance together with all easements,
warranties, guarantees, and other assurances of performance related to same; and
(ii) ownership, operation, and maintenance of the customer
service line(s) and building plumbing shall be the sole responsibility of Owner at
all times, and the Owner shall be solely responsible for all costs and expenses
associated with the repair, maintenance and operation of such private facilities.
3.10 Conditions Precedent to Initiation of Additional Services. All the requirements
in this section must be completed before any Additional Services are provided by the
District to the Property:
(i) the Additional Facilities must be timely constructed and
installed by the Owner in accordance with the plans and specifications approved
by the District;
(ii) Owner must pay all District costs and fees and otherwise
comply with all rules and policies of the District related to the Additional Services,
including completion of standard retail service application(s) and agreement(s);
and
(iii) Owner must pay a service deposit for each account within the
Property, including for services furnished to the Existing Improvements.
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3.11 Responsibility for Injuries or Damage to Property. Owner is solely responsible
for the safety of its own employees, guests, contractors, invitees, and authorized agents,
and for any loss or damage to property of the District or third persons or for injury to
third persons directly caused by Owner, or its employees, contractors, or authorized
agents, in installing the Additional Facilities required under this Agreement.
3.12 District Rules, Policies and Procedures. Owner and customers within the
Property will be subject to and required to comply with the District's rules, policies, and
procedures, as the same may be amended from time to time, for providing out -of -district
water and wastewater utility services.
3.13 Land Use. Property Owner acknowledges and agrees that the Additional Services
made available by the District hereunder to the Property is limited to the uses of the
Existing Improvements and Proposed Improvements as described herein. The District
shall have no obligation to provide Additional Services in the event there is any change in
land use within the Property and may terminate service immediately in the event of such
change in land use.
IV.
TERM
4.01 Term. This Agreement shall terminate at such time as the City commences the
provision of water and wastewater services to the Property in accordance with the terms
hereof; provided, however, that Owner's obligation to provide payment for water and
wastewater utility services furnished by the District shall survive termination.
V.
DEFAULT AND REMEDIES; LIABILITY
5.01 Default Process. If one Party believes that another Party is in default of any
provision of this Agreement, the nondefaulting Party will give written notice to the other
Parties, specifying the event of default and extending the defaulting Party thirty (30) days
to cure the default. This 30 -day period for notice and opportunity to cure must pass
before a nondefaulting Party may initiate any remedies available to the nondefaulting
Party due to an alleged default. If the default is not cured during the 30 -day period, the
nondefaulting Party may pursue all remedies, at law or in equity that it deems
appropriate to redress such default. Nothing in this Agreement will be construed to limit
a Party's right to recover damages or seek other appropriate curative remedies if a
nondefaulting Party files a breach of contract action relating to this Agreement.
VI.
CONSULTANT COSTS
6.01 Consultant Fees. Simultaneously with the execution of this Agreement, and as a
condition precedent to performance by the District under this Agreement, Owner shall
pay the sum of $3,000 to the District as reimbursement for professional fees and costs
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incurred by the District in connection with the negotiation and preparation of this
Agreement.
6.02 Engineering Reviews. After completion of review of the plans and specifications
for the Additional Facilities, the District shall submit an invoice for payment to Owner in
the amount of the engineering costs incurred by the District in connection with
performing such review. Owner shall provide payment to the District in the full amount
of the written invoice within thirty (30) days after receipt of the invoice.
6.03 Inspection Fees. The District shall submit an invoice for payment to Owner in the
amount of all costs incurred by the District in connection with inspecting the construction
of the Additional Facilities. Owner shall provide payment to the District in the full
amount of the written invoice within thirty (30) days after receipt of the invoice.
VII.
GENERAL PROVISIONS
7.01 Severability. If any part of this Agreement is held to be invalid for any reason by a
court or agency of competent jurisdiction, the remainder of this Agreement shall not be
affected and this Agreement shall 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.
7.02 Force Majeure. If, by reason of Force Majeure, any Party shall be rendered wholly
or partially unable to carry out its material obligations under this Agreement after the
Effective Date, then such Party shall give written notice of the particulars of such Force
Majeure to the other Parties within a reasonable time after the occurrences thereof. The
obligations of the Party giving such notice, to the extent by such Force Majeure, shall be
suspended during the continuance of the inability claimed and for no longer period, and
such Party shall in good faith exercise its best efforts to remove and overcome such
inability. The term "Force Majeure" as utilized herein shall mean and refer to acts of God;
strikes, lockouts or other disturbances; acts of public enemies, orders of any kind of the
government of the United States, the State of Texas, or any other civil or military
authority; insurrections; riots; epidemics; earthquakes; lightning; fires; hurricanes;
storms; floods; washouts; or other natural disasters; arrests; restraint of government and
people; civil disturbances; explosions: breakage or accidents to machinery, pipelines or
canals; or other causes not reasonably within the control of the Party claiming such
inability, but does not include the inability to provide payment.
7.03 Cooperation. The Parties agree to cooperate at all times in good faith to effectuate
the purposes and intent of this Agreement.
7.04 Entire Agreement. This Agreement contains the entire agreement of the Parties
and supersedes all prior or contemporaneous understandings or representations,
whether oral or written, respecting the subject matter hereof.
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7.05 Amendments. Any amendment must be in writing and signed by the authorized
representative of each party.
7.06 No Third Party Beneficiaries. This Agreement shall inure only to the benefit of the
Parties hereto and third persons not privy hereto shall not, in any form or manner, be
considered a third party beneficiary of this Agreement.
7.07 Independent Contractors and No Partnership or joint Venture. The City and the
District will each have the status of independent contractor hereunder and each will be
solely responsible for the proper direction of its employees and agents and the employees
and agents will not be considered employees, agents or borrowed servants of the other
Party for any reason.
7.08 Assignment. Except as otherwise provided herein, the assignment of this
Agreement by any Party is prohibited without the prior written consent of the other
Parties. All of the respective covenants, undertakings, and obligations of each of the
Parties will bind that Party and will apply to and bind any successors or assigns of that
Party.
7.09 Applicable Law; Venue. This Agreement will be construed in accordance with
Texas law. Venue for any action arising hereunder will be in Williamson County, Texas.
7.10 Notices. Any notice required or permitted hereunder shall be given in writing by
United States certified mail with postage and fees pre -paid or reputable overnight courier
(e.g., Federal Express), facsimile transmission, or electronic mail, with confirmation of
delivery addressed as follows:
to City: Attn:
City of
Email:
Fax:
to District: Brushy Creek Municipal Utility District
Attn: General Manager
16318 Great Oaks Drive
Round Rock, Texas 78681
Email: Manager-bcmud@hotmail.com
Fax: (512) 255-0332
To Owner: Attn: ?&'V.4s�
F -3; /�'- -..'G - Wi
Email: e77
Fax: .572 -
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All notices will be deemed to have been given on the date of mailing or sending of such
notice. Each Party may change its address upon five days' written notice to the other Party.
7.11 Counterparts; Effect of Partial Execution. This Agreement may be executed
simultaneously in multiple counterparts, each of which will be deemed an original, but all
of which will constitute the same instrument.
7.12 Authority. Each Party represents and warrants that it has the full right, power and
authority to execute this Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be signed,
sealed and attested in duplicate by their duly authorized officers, as of the Effective Date
set forth above.
District Secretary
BRUSHY CREEK CONGREGATION OF
JEHOVAH'S WITNESSES
By
Name: , e,—
Title: ✓1ua _
Date: 7—
BRUSHY CREEK MUNICIPAL UTILITY
DISTRICT
Mike Potter
By: eneral Manager
Name:
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CITY OF ROUND ROCK, TEXAS
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Exhibit "A"
Description of Property
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