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Contract - Upper Brushy Creek WCID - 12/18/2014 INTERLOCAL AGREEMENT BETWEEN UPPER BRUSHY CREEK WATER CONTROL AND IMPROVEMENT DISTRICT AND CITY OF ROUND ROCK THE STATE OF TEXAS § COUNTY OF WILLIAMSON § This Interlocal Agreement (the "Agreement") is entered into as of this /� day of '` e 6eN^ , 2014, by and between the Upper Brushy Creek Water Control and Improvement District, a political subdivision of the State of Texas (the "District") and the City of Round Rock, a Texas home-rule municipality (the "City") (collectively, the "Parties"). RECITALS WHEREAS, V.T.C.A., Government Code, Chapter 791, cited as the Texas Interlocal Cooperation Act, provides that any one or more local governments may contract with each other for the perfoimance of governmental functions or services for the promotion and protection of the health and welfare of the inhabitants of this State and the mutual benefit of the parties; and WHEREAS, the District and the City desire to cooperate in the expeditious design and construction of a new dam and inundation easement capable of impeding the flow of flood waters in the Lake Creek Basin area ("Dam 101"); and NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the City and the District agree as follows: A. TERMS AND CONDITIONS 1. Project Improvement. Dam 101 will be designed ultimately as an earthen dam and inundation easement, the purpose of which is to remove from the 1% floodplain residential homes located downstream of the Austin White Lime quarries and upstream of Interstate Highway 35, the approximate location of said dam improvements being shown on Exhibit "A", attached hereto and incorporated herein(the "Dam 101 Project"). 2. District Obligations. The District shall contract with a consultant(s) to perform a portion of the Field Investigation and Pre-Design work (the "Initial Work") for the Dam 101 Project. The District shall consult with and seek the concurrence of the City regarding the selection of the consultant(s), the scope of work, and associated fees. All costs incurred by the District for the Initial Work, as agreed to by the City, shall be credited toward the WCID-CORR ILA 12-12-14(00326149,A08F8) -210I 1-4t91- District's financial obligations for the Dam 101 Project as described below. After project completion, the District will own, operate and maintain the Dam 101 improvements. 3. City Obligations. The City shall be responsible for the design and construction of the Dam 101 Project. The City will contract with a consulting firm/team to provide surveying, mitigation, design, land planning, permitting, grant investigation and management and construction phase services as needed to complete the Dam 101 Project. The City will consult with and seek the concurrence of the District prior to selection of the consulting firm/team. During the design phase, the District's Project Manager shall be involved in plan review and comment. The District's Technical Committee shall be consulted at each major milestone to the Dam 101 Project to review technical aspects and progress of the Project. During the construction phase, the District's Project Manager shall be invited to the pre-construction conference and all construction progress meetings, including all change order discussions and updated regarding progress payments made to the contractor. 4. Project Funding. a. District. i. The District shall be solely responsible for all costs associated with land acquisition for the Dam 101 Project, including all temporary and permanent easements. The District shall negotiate and obtain right-of- entry agreements from Austin White Lime sufficient to allow all phases of design and construction when final site and construction limits are detei mined. ii. The District agrees to be responsible for up to 25% of Full Project Costs (as described below) plus the total cost of the easements associated with the Dam 101 Project, for a total amount not to exceed Six Million Dollars ($6,000,000). Full Project Costs include all Dam 101 Project costs incurred by both the City and the District for design and construction, less any grant monies received by either party relating to the Dam 101 Project. iii. An Initial Payment of$2,000,000 shall be made to the City within thirty (30) days after the City Council awards a design contract of the Dam 101 Project, or by October 1, 2015, whichever occurs later. iv. The Final Payment shall be made to the City within thirty (30) days after the City Council awards the construction contract for the Dam 101 Project. The final payment shall be the lesser of: 1. 25% of the Full Project Costs minus the $2,000,000 Initial Payment and the Initial Work costs, or 2. $6,000,000 minus the cost of land acquisition and easements,the $2,000,000 Initial Payment and the Initial Works costs. 2. b. City. i. The City shall be responsible for securing all funding for all aspects the Dam 101 Project, conditioned upon the District meeting its financial obligations as stated above. The District remains solely responsible for all costs associated with land acquisition. ii. The City will use its best efforts to obtain outside grant funding to reduce the Full Project Costs to be paid by both parties. 5. Project Management. a. The District and the City acknowledge that is in their mutual best interest to design and construct the Dam 101 Project as expeditiously as possible. To achieve this end, the District and the City each agree to appoint a Project Manager who will serve as a point of contact and coordinator for each party. The District and the City shall, to the extent legally possible, delegate to each Project Manager the ability to make practical, daily decisions regarding the Dam 101 Project. The Project Managers shall prepare a monthly progress report for the respective parties. b. The District and the City shall each appoint two additional members from their respective agencies to a Technical Committee. The Technical Committee shall be consulted at each major milestone to the Dam 101 Project to review technical aspects and progress of the Project. In this context, major milestones are defined as Concept Design refinement, Field Design and Pre-design Analysis, Preliminary Design (30%), Intermediate design (60%), Pre-final Design (90%) and Final Design/Bid documents (100%). The City's Project Manager shall resolve all concerns of the Technical Committee prior to proceeding to major milestones. c. During the construction phase, the District's Project Manager shall be invited to the pre-construction conference and all construction progress meetings, including all change order discussions and updated regarding progress payments made to the contractor. As stated above, after Project completion, the District will own, manage and maintain the Dam 101 improvements. 6. Land Owner Coordination. The District and the City agree that because of the multiple projects constructed in addition to the Dam 101 Project on Austin White Lime property, it would be prudent to conduct negotiations with Austin White Lime concurrently. Both Project Managers shall be present at all meetings with Austin White Lime, however, both parties recognize that 3. for the convenience of Austin White Lime, the District Project Manager will be the primary point of contact with Austin White Lime. B. MISCELLANEOUS PROVISIONS 1. Execution. This Agreement may be simultaneously executed in any number of counterparts, each of which will serve as an original and will constitute one and the same instrument. 2. Governing Law. This Agreement will be governed by the Constitution and laws of the State of Texas. 3. Successors and Assigns. The assignment of this Agreement by either Party is prohibited without the prior written consent of the other Party. 4. Headings. The captions and headings appearing in this Agreement are inserted merely to facilitate reference and will have no bearing upon its interpretation. 5. Partial Invalidity. If any of the terms, covenants or conditions of this Agreement, or the application of any term, covenant, or condition, is held invalid as to any person or circumstance by any court with jurisdiction, the remainder of this Agreement, and the application of its terms, covenants, or conditions to other persons or circumstances, will not be affected. 6. Waiver. Any waiver by any party of its rights with respect to a default or requirement under this Agreement will not be deemed a waiver of any subsequent default or other matter. 7. Amendments. This Agreement may be amended or modified only by written agreement duly authorized and executed by the duly authorized representatives of the Parties. 4. 8. Cooperation. Each Party agrees to execute and deliver all such other and further instruments and undertake such actions as are or may become necessary or convenient to effectuate the purposes and intent of this Agreement. 9. Venue. All obligations of the Parties are performable in Williamson County, Texas and venue for any action arising hereunder will be in Williamson County. 10. Third Party Beneficiaries. Except as otherwise expressly provided herein, nothing in this Agreement, express or implied, is intended to confer upon any person, other than the Parties, any rights, benefits, or remedies under or by reason of this Agreement. 11. Representations. Unless otherwise expressly provided, the representations, warranties, covenants, indemnities, and other agreements will be deemed to be material and continuing, will not be merged, and will survive the termination or expiration of this Agreement. 12. Exhibits. All exhibits attached to this Agreement are hereby incorporated in this Agreement as if the same were set forth in full in the body of this Agreement. 13. Entire Agreement. This Agreement, including any attached exhibits, contains the entire agreement between the Parties with respect to the subject matter and supersedes all previous communications, representations, or agreements, either verbal or written, between the Parties with respect to such matters. 14. Term. This Agreement shall automatically terminate if a construction contract is not awarded for the Dam 101 Project by the City within four (4) years after this Agreement is executed by both parties. 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. 5. UPPER BRUSHY CREEK WATER CONTROL AND IMPROV MENT DISTRICT By: a - Larry Q,i, , °resident Date: IL/15/14 CITY OF ROUND ROCK, TEXAS By: Alan McGraw, Mayor Date: P- • Attest: c41414/ . ::i Sara L. White, City Clerk 6. • • LS _:� .�.:iv.,Bs^jps{'� -"--;4- o- }_" - _ c y.rx -t ` +y a _ ;i. i I•� �. • "' _= a,.=6 . 4. ,, ,t. ' , 4 k� ro=r ]t/;11`,„ i3` ti+ 4 ▪ •'' t x 9` O LA 701, • .R' {. ,T g 407/ y▪ "r,.<<CC/- 'r-.4!"-,"- :Mf 1.......7.':/a,! _ . .'. t 1'7:— .4 .A. a Y•v),V e•-r,>-,1;44:i-b.:7, t. �/ i 1'‘'� Oki '17-4.w. b,"'' �[�..' :`. 7y` +'I jdo „l. ---4,,,...4-l -, e' l0.. ,-, - „. _� „ • .•'-t3',1.,..):1"/...,... '.y � i "n_ jy,i t e i + g1 •1e v y �s�.f x''' ' \, ] •' r y v./4a .` ..;''',-;.-7,..,.,4,•,,i, •a-8' ).VA_ty c �, `" -tl a' �' dwy�y'Ys'yl�f'r: C' 0....,•<15'F'" �9bb1 i i•' !,,4 � ; 'S.t! '��• .m 4i''*4„,_ f:Rc ,y' • '.1.——.(- '� r: -, .,.p;;, -r ��y� J• t/ •A., `•i _t;A"3--! K Ylw ' .• . a•"• ,i,• '71a# V:�.•+ 'st T -4 tJ -�^•. 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