R-06-02-09-10D5 - 2/9/2006RESOLUTION NO. R -06-02-09-10D5
WHEREAS, Chapter 791 of the Texas Government Code, V.T.C.A.,
authorizes local governments and agencies of the state to enter into
agreements with one another to perform governmental functions and
services, and
WHEREAS, the City of Round Rock wishes to enter into an
Interlocal Agreement for Construction of Regional Waterline with the
City of Cedar Park and the Lower Colorado River Authority, 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
Construction of Regional Waterline with the City of Cedar Park and the
Lower Colorado River Authority, a copy of same being attached hereto as
Exhibit "A" and incorporated herein for all purposes.
The City Council hereby finds and declares that written notice of
the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to the
public as required by law at all times during which this Resolution and
the subject matter hereof were discussed, considered and formally acted
upon, all as required by the Open Meetings Act, Chapter 551, Texas
Government Code, as amended.
RESOLVED this 9' day of February,
ATTE
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City
CHRISTINE R. MARTINEZ, City Secretar
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F&C Draft 2/038/06
INTERLOCAL AGREEMENT REGARDING
CONSTRUCTION OF REGIONAL WATERLINE
THE STATE OF TEXAS
KNOW ALL BY THESE PRESENTS:
COUNTY OF WILLIAMSON
THIS INTERLOCAL AGREEMENT REGARDING CONSTRUCTION OF
REGIONAL WATERLINE ("Agreement") is entered into between the City of Round Rock,
Texas, a Texas home -rule city ("Round Rock"); the City of Cedar Park, Texas, a Texas home -
rule city ("Cedar Park"), and the Lower Colorado River Authority, a political subdivision of the
State of Texas ("LCRA"). In this Agreement, Round Rock, Cedar Park and LCRA are
sometimes individually referred to as "a Party" and collectively referred to as "the Parties".
WHEREAS, the Parties have agreed to jointly pursue a regional water supply system
(the "Regional Project"), which will ultimately provide an additional 93.8 million gallons per
day of potable water supply to meet future water demands of the Parties, based on projected
population growth; and
WHEREAS, the Regional Project will include a 72 -inch water transmission main within
or adjacent to the right-of-way for New Hope Road from Bagdad Road to U.S. 183A (the "New
Hope Waterline"); and
WHEREAS, Cedar Park is obligated to reconstruct New Hope Road immediately in
order to provide a connection to the 183-A Tollway, which is currently under construction and is
scheduled to be completed in March 2007; and
WHEREAS, the Parties desire to proceed with construction of the New Hope Waterline
simultaneously with the reconstruction of New Hope Road by Cedar Park; and
WHEREAS, the Parties desire to enter into this Agreement in order to provide for the
construction of the New Hope Waterline.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises and agreements of the Parties contained in this Agreement, the Parties agree as follows:
I.
DEFINITIONS
When used in this Agreement, capitalized terms not otherwise defined shall have the
meanings set forth below:
1.01 "Agreement" means this Interlocal Agreement Regarding Construction of
Regional Waterline.
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1.02 "Balanced Bid" means a bid submitted by a contractor for construction of the
Project in which the ratio percentage of the bid costs for construction of the New Hope Waterline
relative to the contractor's bid costs for the Project meet the following criteriafall within the
following range:
(i) [to be inserted after we receive the ratio from the engineer].
1.03 "Balanced Bid Percentage" means the actual ratio of the bid costs for construction
of the New Hope Waterline relative to the bid costs for the Project submitted by the Project
Contractor. The Balanced Bid Percentage shall be agreed upon by the Technical Committee
ark with the Project Contractor for constructien-of
the Project.
1.04 "Bid Documents" means the plans and specifications, together with all contract
documents and bid instructions, relating to construction of the New Hope Waterline.
1.05 "Capital Expenses" means all acquisition, construction, reconstruction,
rehabilitation, replacement and decommissioning costs as those terms are generally understood
in standard accounting practice as applied to projects similar in nature to the New Hope
Waterline. Depreciation shall not be considered a Capital Expense. Capital Expenses will not
include any Operation and Maintenance Expenses.
1.06 "Cedar Park" means the City of Cedar Park, Texas.
1.07 "Conveyance" means the execution and delivery of all documents transferring and
assigning an undivided interest in the New Hope Waterline and associated Contracts and Real
Property from Cedar Park to the other Parties, and the performance of all acts necessary to
complete such execution and delivery.
1.08 "Construction Fund" means a fund to be established and administered by Cedar
Park in accordance with Section _ in order to provide monies to pay the Waterline Costs.
1.09 "Contracts" means the contracts, permits, approvals, and licenses relating to or
arising out of the acquisition, construction, and operation of the New Hope Waterline.
1.10 "Cost Allocation Percentage" means the percentage of Waterline Costs to be paid
by each Party, which percentage shall be based on each Party's Reserved Capacity in each
segment of the New Hope Waterline. The Cost Allocation Percentages for Segment A and
Segment B are set forth on Exhibit "A" attached hereto.
1.11 "Cost Estimate" means the engineering cost estimate for construction of the New
Hope Waterline, as set forth in Exhibit "B" attached hereto.
1.12 "Design Agreement" means that certain "Interlocal Agreement Regarding Design
of New Hope Regional Waterline" dated , December 15, 2005 entered into by the Parties
setting forth the terms and conditions pursuant to which the Parties agreed to undertake and share
certain engineering costs related to the design of the New Hope Waterline; and
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1.13 "Effective Date" means March 1, 2006.
1.14 "LCRA" means the Lower Colorado River Authority.
1.15 "Liability Allocation Percentages" means the percentage of certain costs to be
paid by each of the Parties, as set forth on Exhibit "C" attached hereto.
1.16 "New Hope Road Reconstruction" means the reconstruction of New Hope Road
by Cedar Park in order to provide a connection to the 183-A Tollway.
1.17 "New Hope Waterline" means the 72 -inch water transmission line and related
equipment and appurtenances to be constructed within or adjacent to the right-of-way of New
Hope Road from Bagdad Road to U.S. 183A in Williamson County, Texas. The New Hope
Waterline shall consist of those two segments described hereinafter as Segment A and Segment
B.
1.18 "Operation and Maintenance Expense" means all direct and indirect costs (other
than those incurred as a result of the gross negligence or willful misconduct of any Party) of
operation, maintenance, and repair of the New Hope Waterline. Depreciation shall not be
considered an item of Operation and Maintenance Expense.
1.19 "Party" or "Parties" means Cedar Park, Round Rock and/or LCRA, individually
or collectively, as applicable.
1.20 "PER" means the "Regional Water Supply Project Preliminary Engineering
Report" prepared by HDR Engineering, Inc. and dated February 2006.
1.21 "Project" means, collectively, the construction of the New Hope Waterline and
the New Hope Road Reconstruction.
1.22 "Project Committee" means the engineering representative(s) selected by each
Party for purposes of reviewing and approving certain technical and cost elements associated
with the construction and operation of the New Hope Waterline, as provided in Section 3.01 of
this Agreement.
1.23 "Project Contractor" means the contractor that enters into a contract with Cedar
Park for construction of the Project.
1.24 "Qualified Bid" means a bid submitted by a prospective contractor for
construction of the Project that meets all of the following criteria:
(i) The bid contains market prices for the costs of the New Hope
Waterline, including costs of materials, labor, overhead and profit;
(ii) The bid does not allocate a disproportionate share of the
contractor's anticipated profit, overhead, and other costs to the New Hope Waterline;
(iii) The bid is a Balanced Bid;
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(iv) The total costs of construction of the New Hope Waterline
included within the bid do not exceed the Cost Estimate; and
(v) The contractor is qualified to construct the New Hope Waterline.
1.25 "Regional Waterline Interests" means the undivided interest in the New Hope
Waterline, the Real Property (if any), the Contracts and all other interests, if any, that Cedar Park
will acquire or construct and convey to the other Parties as provided in this Agreement.
1.26 "Reserved Capacity" means the total quantity of Water or raw water that a Party
is entitled to deliver into and transport through any portion of the New Hope Waterline pursuant
to this Agreement. The Reserved Capacity of each Party in Segment A and Segment B is more
fully identified on Exhibit "D" attached hereto.
1.27 "Real Property" means the fee or easement interests for any portion of the New
Hope Waterline that is not constructed within public rights of way.
1.28 "Regional Project" means the regional water supply system, which will ultimately
provide an additional 93.8 million gallons per day of potable water supply to meet future water
demands of the Parties, based on projected population growth, as more fully described in the
PER.
1.29 "Round Rock" means the City of Round Rock, Texas.
1.30 "Segment A" means that portion of the New Hope Waterline more particularly
described in the sketch attached hereto as Exhibit "E".
1.31 "Segment B" means that portion of the New Hope Waterline more particularly
described in the sketch attached hereto as Exhibit "E".
1.32 "Unbalanced Bid" means any bid for construction of the Project that is not a
Balanced Bid.
1.33 "Water" means potable water meeting those requirements for human consumption
and other domestic uses promulgated by the Texas Department of Health and/or the Texas
Commission on Environmental Quality.
1.34 "Waterline Costs" means those engineering, construction, inspection and other
costs relating to the New Hope Waterline that will be shared by the Parties and that are more
particularly described in Section 4.05(b). The total estimated Waterline Costs, along with each
Party's estimated share of such costs, are set forth on Exhibit "F" attached hereto.
II.
STATEMENT OF INTENT; CONDITION PRECEDENT; AND PRELIMINARY
SURVEYING COSTS
2.01 General. The purpose of this Agreement is to provide for construction of the
New Hope Waterline, as the first component of the Regional Project. The Parties intend to enter
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into one or more agreements hereafter providing for financing, construction and operation of the
remaining components of the Regional Project. Although it is the current intent of the Parties
that the New Hope Waterline will be operated only as part of the Regional Project, this
Agreement provides for the operation, maintenance and repair of the New Hope Waterline in the
event that all Parties do not jointly proceed with construction of the Regional Project for any
reason.
2.02 Condition Precedent. The Parties' rights and obligations under this Agreement
are subject to the _execution of this Agreement by all Parties on or before February 24, 2006. In
the event that all Parties do not execute this Agreement by said date for any reason and all Parties
do not agree to an extension in writing, then this Agreement shall be null and void, and shall
terminate, for all purposes.
2.03 Surveying Costs. In addition to providing for the construction of the New Hope
Waterline, the Parties mutually acknowledge and agree that they desire to cause certain
preliminary surveying to be conducted in connection with the Regional. Project. Specifically, the
Parties agree that preliminary surveying is needed to generate strip maps of the raw water line
from the existing Cedar Park treatment plant to the vicinity of the proposed regional treatment
plant near FM 1431 and Lime Creek Rd. The cost of the preliminary surveying is not to exceed
$22,1.40 an.d will be shared by the Parties as follows:
Cedar Park - $3,540.19
Round Rock - $9,630.90
LCRA - $8,968.91
III.
PROJECT COMMITEE
3.01 Composition of Project Committee. There is hereby created a Project
Committee to be composed of one representative (and one alternate representative) appointed by
each Party. The following persons are hereby designated as the initial members of the Project
Committee: Kenneth Wheeler and Sam Roberts (alternate representative) on behalf of Cedar
Park; Jason Eichler and Jim Clarno (alternate representative) on behalf of LCRA; and Don
Rundell and Tom Clark (alternate representative) on behalf of Round Rock. Each representative
(and alternate representative) of a Party shall serve at the will of the governing body that the
person represents. Upon the death, resignation, or revocation of the power of such representative
(or alternate representative), the governing body of the appropriate Party shall promptly appoint
a new representative (or alternate representative) to the Project Committee, and shall
immediately notify the other Parties of such appointment.
3.02 Responsibility of Project Committee. The Project Committee shall represent
the individual and collective interests of the Parties with respect to the following matters:
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(i)
The review and approval of the Bid Documents;
(ii) The review of the bid tabulation and qualification of prospective
contractors for the Project;
(iii) The identification of Qualified Bids;
(iv) The periodic review of the status of construction of the New Hope
Waterline;
(v) The review and approval of change orders relating to the
construction of the New Hope Waterline;
(vi) The review and approval of invoices for payment related to the
New Hope Waterline;
(vii) The confirmation of final completion of construction of the New
Hope Waterline; and
(viii) Any other pertinent matters relating to the construction or
operation of the New Hope Waterline.
The Project Committee shall meet at regular intervals to review the matters over which it has
authority. The Project Committee shall be diligent, prompt and timely in reviewing and acting
on matters submitted to it.
IV.
CONSTRUCTION OF NEW HOPE WATERLINE
4.01 General. The Parties mutually acknowledge and agree that all physical facilities
to be constructed or acquired as part of the New Hope Waterline are being designed by Cedar
Park pursuant to the Design Agreement. The Design Agreement shall remain in effect for all
purposes, and the terms and conditions of this Agreement shall not amend, modify or supercede
the Design Agreement.
4.02 Approval of Bid Documents.
(a) Without limitation, the Bid Documents must include the following requirements
relating to the construction of the New Hope Waterline:
(i) Each contractor bidding on the Project must segregate all bid costs
related to the construction of the New Hope Waterline from the bid costs related to the
New Hope Road Reconstruction;
(ii) The Bid Documents shall require the Project Contractor to
categorize all costs included within each pay request related to the New Hope Waterline
according to the individual segment of the New Hope Waterline to which the costs
relate.
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(iii) All Parties shall be named as additional insureds on the
contractor's insurance policies. In the event that a surety will not agree to this
condition, then the Parties acknowledge that Cedar Park may secure performance and
payment bonds under which only Cedar. Park is a designated beneficiary;
(iv) All Parties shall be named as additional beneficiaries under the
contractor's performance and payment bonds;
(v) LCRA and Round Rock shall be named as third party beneficiaries
under the contract for construction of the Project, as it relates to the New Hope
Waterline only; and
(vi) An Unbalanced Bid is cause for rejection of any bid.
(b) The Parties hereby agree to the form of the Bid Documents previously furnished
to the Parties pursuant to the Design Agreement and authorize Cedar Park to proceed with the
advertisement and solicitation of bids for the Project. Cedar Park shall not modify or amend the
Bid Documents without the prior unanimous approval of the Project Committee.
(c) LCRA and Round Rock agree that neither such Party, nor the Project Committee,
shall have any right of approval with respect to the design and construction of the New Hope
Road Reconstruction, and Cedar Park agrees that neither such Party shall have any duty,
obligation or responsibility with respect the design or construction of the New Hope Road
Reconstruction.
4.03 Bid Award.
(a) All construction contracts for the Project will be competitively bid and awarded
by Cedar Park in the manner provided by State laws and in accordance with this Section.
(b) The bid tabulation and related information for the construction of the Project will
be submitted to the Project Committee for review and consideration. The Project Committee
shall unanimously agree upon and identify each Qualified Bid within 10 working days of receipt
of the bid tabulation and related bidding materials, and shall provide comments regarding the
bids and bidders during such period. In considering whether or not to accept any bid, Cedar Park
shall consider the advice and recommendations of the Project Committee, but the decision as to
the acceptance of any Qualified Bid shall be within the sole discretion of Cedar Park.
(c) Cedar Park agrees that it shall not award a contract for construction of the Project
to any contractor that does not submit a Qualified Bid unless all members of the Project
Committee unanimously agree thereto within 10 calendar clays after receipt of written notice
from Cedar Park of the identity of proposed contractor and the amount of the contractor's bid as
it relates to the construction of the New Hope Waterline. If any member of the Project
Committee fails to either approve or object in writing to the proposed award within 10 calendar
days of receipt of written notice from Cedar Park, then that member shall be deemed to have
approved the award of the contract by Cedar Park to the proposed contractor. In the event that
any member of the Project Committee objects to the award of the contract by Cedar Park within
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such 10 day period, then this Agreement shall automatically terminate for all purposes, and all
Parties shall be without further obligation to each other.
(d) In the event of termination of this Agreement under this Section or otherwise
under the terms of this Agreement, Cedar Park may proceed to award a contract for construction
of the New Hope Road Reconstruction and any waterline improvements that it identifies in the
exercise of its sole discretion, and neither Round Rock nor LCRA shall interfere therewith, or
have any obligations or duties with respect thereto. Similarly, in the event of such termination,
any two of the Parties may thereafter proceed with construction of joint water system
improvements, and the remaining Party shall not interfere with or impair such joint project, or
have any obligations or duties with respect thereto.
4.04 Construction of New Hope Waterline.
(a) General.
(i) Cedar Park shall be responsible for constructing, or causing to be
constructed, the New Hope Waterline, and acquiring all related easements, equipment,
materials and supplies. In connection with the construction of the New Hope Waterline,
Cedar Park agrees to use good faith and reasonable efforts to ensure that the Project
Contractor completes construction of the New Hope Waterline in accordance with the
plans and specifications and other requirements set forth in the Bid Documents.
(ii) Cedar Park must issue a notice to proceed to the Project Contractor
011 or before June 1, 2006 or any date thereafter agreed upon in writing by all Parties, or
this Agreement shall terminate for all purposes.
(b) Road Reconstruction. The New Hope Waterline will be constructed
simultaneously with the New Hope Road Reconstruction; provided, however, only Cedar Park
will be responsible for payment of any and all costs and expenses associated with the New Hope
Road Reconstruction.
(c) Inspection.
(i) Cedar Park shall retain a full-time construction inspector to inspect
construction of the New Hope Waterline. Cedar Park will notify the Project Committee
of any construction defects coming to its attention as soon as practicable and in no event
later than five calendar days (excluding city holidays) after obtaining knowledge of the
defect.
(ii) The total costs of the waterline inspection shall not exceed
$110,000 and shall constitute Waterline Costs that are shared by the Parties according to
their respective Cost Allocation Percentages for each segment of the New Hope
Waterline. The costs of inspection charged by Cedar Park to the other Parties shall
equal the hourly rate charged by the inspector(s) to Cedar Park.
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(iii) In the event that Cedar Park retains an inspector for the New Hope
Road Reconstruction, then it shall pay all costs and expenses associated therewith, and
shall not charge Round Rock or LCRA any portion of such road construction inspection
costs or expenses.
(iv) Each Party shall have a reasonable right to access and inspect the
New Hope Waterline as construction progresses, and no Party shall interfere with such
access or inspection by any other Party or its designated representative(s).
(d) Change Orders. During construction, any change orders related to the New
Hope Waterline or impacting the Waterline Costs will be subject to review and approval by the
Project Committee-. The Project Committee will review any change orders and either approve
the change order or provide written comments specifically identifying the changes required
within 10 working days of submittal. If the Project Committee fails to either approve the
submittal or provide written comments specifically identifying the required changes within 10
working days, the change order in question will be deemed approved.
(e) Insurance. Cedar Park shall require that all workers involved with the
installation and construction of the New Hope Waterline are covered by workers' compensation
insurance as required by the laws of the State of Texas. Cedar Park shall also require that the
contractors procure and maintain comprehensive general liability insurance insuring against the
risk of bodily injury, property damage, and personal injury liability occurring from, or arising out
of, construction of the New Hope Waterline, with such insurance in the amount of a combined
single limit of liability of at least $1,000,000 and a general aggregate limit of at least $5,000,000.
Such insurance coverage shall be maintained in force at least until the completion, inspection and
acceptance of the New Hope Waterline by Cedar Park. LCRA and Round Rock shall be named
as additional insureds on all such insurance coverages.
4.05 Payment of Waterline Costs.
(a) All construction contracts and other agreements relating to the construction of the
New Hope Waterline will contain provisions to the effect that the Project Contractor will look
solely to Cedar Park for payment of all sums coming due thereunder.
(b) In accordance with the Cost Allocation Percentages set forth in Exhibit "A" and
the terms of this SeetA.greement, each Party shall pay for a portion of the following costs
relating to the construction of the New Hope Waterline (collectively, the "Waterline Costs"):
(i) All payments to be made to the Project Contractor for construction
of the New Hope Waterline (and specifically excluding any and all payments to be
made to the Project Contractor related to the New Hope Road Relocation);
(ii) All costs to be paid to the Project Contractor for any change orders
relating to the New Hope Waterline that are approved by the Project Committee in
accordance with this Agreement;
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(iii) Construction administration costs related to the New Hope
Waterline in an amount equal to the actual fees paid by Cedar Park for such purposes;
provided, however, that not more than $15075,000.00 in construction administration
costs may qualify as Waterline Costs;
(iv) Project management costs to Cedar Park for management of the
construction of the New Hope Waterline in a lump sum amount equal to $175,000.00;
(v) Utility relocation costs that are directly related to and necessitated
by construction of the New Hope Waterline (as opposed to the New Hope Road
Relocation); and
(vi) Any other costs related to the New Hope Waterline that are to be
shared by the Parties under the terms of this Agreement.
(c) Neither LCRA nor Round Rock will be responsible for payment of any costs
related to the New Hope Road Reconstruction. Cedar Park agrees that it shall not charge, or seek
payment or reimbursement from, LCRA or Round Rock for any costs or expenses related to the
New Hope Road Reconstruction.
(d) Cedar Park shall ensure that each invoice for payment from the Project Contractor
and other Project consultants shall segregate costs and services related to the New Hope
Waterline from costs and services related to the New Hope Road Reconstruction. Cedar Park
shall also ensure that each invoice for payment from the Project Contractor and other Project
consultants segregates costs and services related to the New Hope Waterline according to
pipeline segment for proper allocation of costs between the Parties according to the Cost
Allocation Percentages.
(e) Upon Cedar Park's approval of each invoice for Waterline Costs, Cedar Park will
transmit a copy of the invoice to the Project Committee. All Project Contractor pay requests
related to the New Hope Waterline shall include the engineer's approval and shall specify the
percentage of construction of the New Hope Waterline that has been completed. The members
of the Project Committee shall have 10 calendar days to furnish comments or objections
regarding the proposed invoice(s) for payment. Failure to timely dispute or object to the invoice
shall be deemed approval by the Project Committee. Thereafter, Cedar Park will promptly pay
each invoice for Waterline Costs as they become due from monies within the Construction Fund.
(f) In the event that any member of the Project Committee disputes an invoice for
payment that would qualify as Waterline Costs, then the Parties agree that the payment and
dispute shall be addressed as follows:
(i) If the dispute relates to the performance of work or services by a
Project Contractor or consultant, or a contractor's or consultant's entitlement to
payment for work or services, then Cedar Park shall exercise all rights to which it is
entitled under the construction or consulting contract to resolve the dispute, require
correction of the defective work, and otherwise address the concern of the disputing
Party.. The Parties acknowledge and agree that Cedar Park may pay an invoice
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notwithstanding such dispute, but the disputing Party or Parties shall have the right to
seek a determination regarding the matter through the dispute resolution process set
forth in this Agreement, and the Parties shall be bound by and act in accordance with
such determination.
(ii) In the event that any Party disputes an invoice for reasons not
related to the performance of work or services or a contractor's or consultant's
entitlement to payment, including by way of example whether services or costs included
on the invoice are proper Waterline Costs, then the Project Committee shall endeavor in
good faith to resolve the matter by unanimous agreement. If the Project Committee
cannot unanimously agree to the proper resolution within 10 calendar days, then the
invoice shall be paid as received; provided, however, that any Party may subsequently
seek a determination of the proper allocation of such costs through the dispute
resolution process set forth in this Agreement, and the allocation of costs between the
Parties shall be adjusted in accordance with such determination.
4.06 Construction Fund.
(a) The Parties shall contribute monies to the Construction Fund in accordance with
the following provisions:
(i) In addition to the initial contributions to be made by the Parties to
the Construction Fund as set forth in subsection (ii) below, LCRA agrees that it shall
simultaneously provide payment to the Construction Fund in an amount equal to
$16-77000166,667 as a capital contribution to the Waterline Costs (the "LCRA Initial
Capital Contribution"). The Parties mutually acknowledge and agree that the LCRA
Initial Capital Contribution shall be applied equally against the pro rata share of the
Waterline Costs for which Round Rock and Cedar Park (but not LCRA) would
otherwise be responsible for payment under this Agreement. In other words, Cedar
Park's and Round Rock's pro rata shares of the Waterline Costs shall each be reduced
by $83,500.00333.50, as reflected in Exhibit "F". Notwithstanding the foregoing, in
the event that all of the Parties do not enter into a contract for construction of the
Regional Project on or before the date that the construction of the New Hope Waterline
is completed and accepted, then Round. Rock shall provide payment to LCRA in the
amount of $83,333.50 within thirty (30) days of receipt of a written request for such
payment.
(ii) Within ten calendar days of execution of a contract for
construction of the Project by Cedar Park or April 20, 2006, whichever is later, each
Party shall deposit into the Construction Fund the following sums ("the Construction
Payment"), which sums represent twenty five percent (25%) of each Party's share of the
estimated Waterline Costs (after accounting for the LCRA Initial Capital Contribution):
1) Round Rock- $
2) LCRA- $ , and
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3) Cedar Park- $
(iii) At such time as the balance in the Construction Fund is
exhaustedsubstantially depleted, as determined in Cedar Park's reasonable discretion,
Cedar Park shall provide written notice (by email or otherwise) thereof to the other
Parties, each of which shall have thirty (30) calendar days to deposit into the
Construction Fund an additional Construction Payment, in the same amount as set forth
above. Each notice by Cedar Park shall be accompanied by a written accounting report
that identifies in reasonable detail all prior expenditures from the Construction Fund.
(iv) The foregoing process shall continue until such time as the
Waterline Costs have been paid in full. In the event that the Waterline Costs exceed the
original estimate due to change orders or other reasons, then each Party shall thereafter
deposit within the Construction Fund a sum equal to the product determined by
multiplying each Party's Cost Allocation Percentage for the facility to be constructed by
the cost of the facility.
(b) In the event that there are remaining funds within the Construction Fund upon
final completion and acceptance of the New Hope Waterline, then Cedar Park shall promptly
divide and remit within 30 calendar days such funds to the Parties on a pro rata basis according
to the percentage of all Waterline Costs previously paid by each of the Parties, or in the event the
remaining funds are attributable to one or more specific facilities, the remaining funds shall be
remitted to the Parties according to each of the Party's Cost Allocation Percentage for the facility
or facilities. Payment shall be accompanied by a written accounting describing the basis for
calculation of payment to each Party.
(c) All interest that accumulates within the Construction Fund shall remain within
such fund for payment of Waterline Costs.
4.07 Acceptance.
(a) Upon completion of construction of the New Hope Waterline, Cedar Park shall
obtain the approval of the Project Committee prior to acceptance and final payment of retainage
to the Project Contractor.
(b) Within 30 days after completion of construction and final payment for the New
Hope Waterline, Cedar Park will cause the Project engineers to provide to each Party a
concurrence letter from the Project engineers certifying that the construction of the New Hope
Waterline has been completed in accordance with the approved plans, specifications and change
orders, that the facilities have been tested and approved for use in accordance with the approved
contract documents, and that such facilities are properly located within easements or public right-
of-way, as specified in the Project plans.
(c) Within 60 days after completion of construction of the New Hope Waterline,
Cedar Park will cause the Project engineers to provide to each Party a copy of the final "record"
drawings of the completed facilities in an electronic format requested by such Party. Each Party
shall be responsible for payment of any costs associated with obtaining such copies.
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4.08 Warranties. Cedar Park agrees to cause the Project Contractor to repair all
defects in materials, equipment or workmanship appearing within one year from the date of
acceptance of the New Hope Waterline. Upon receipt of written notice from any of the Parties of
the discovery of any defects during this period, Cedar Park shall promptly cause the Project
Contractor to remedy the defects and repair or replace any property damaged as a result thereof.
4.09 Dispute or Litigation. In the event of any dispute between the Project Contractor
and Cedar Park relating to the Project, or in the event of any claim by or against any third person
arising out of or relating to construction of the Project, the Parties agree as follows:
(i) Cedar Park will provide written notice of the details of such
dispute or litigation to the other Parties as soon as reasonably practicable, and shall
continue to provide timely status reports to the other Parties as such dispute or litigation
progresses. The Parties agree that the foregoing shall not be construed to require Cedar
Park to notify the other Parties of claims or notices from subcontractors or others that
would not impact the Waterline Costs;
(ii) Cedar Park will not initiate litigation against the Project Contractor
for any matter that pertains to the New Hope Waterline or that may impact the
Waterline Costs without first seeking the written consent of the other Parties. If the
other Parties withhold their consent and do not participate in the litigation or dispute,
then Cedar Park shall be entitled to any award or settlement that results from such
litigation or dispute;
(iii) Any Party may seek to join any litigation or dispute resolution
process related to the New Hope Waterline, and no other Party shall interfere with such
intervention or participation. The intervening Party shall pay its costs and expenses,
and no other Party will be responsible for payment of any such costs and expenses; and
(iv) Cedar Park and any intervening Parties shall use their respective
reasonable efforts to resolve the dispute or litigation in a manner that mutually benefits
all of the Parties to the litigation equally and is mutually beneficial to the common
interests of the Parties participating in the litigation (and to all Parties who seek to
intervene without success);
(v) In the event that all -any Parties other than Cedar Park participate in
any litigation or dispute resolution process, then each such additional. Party shall be
responsible for its respective legal costs and fees. All Parties agree that they will share
the costs and expenses incurred by Cedar Park associated with such litigation, along
with , but shall share the costs of any adverse judgments or settlements_ as Waterline
Costs according to each Party's Liability Allocation Percentage; provided, however,
that: (i) any costs or expenses that arise out of the gross negligence or willful
misconduct of a Party shall be paid only by that Party, and (ii) if the litigation or
proceeding relates solely to one segment of the New Hope Waterline, then each Party
shall provide payment according to their Cost Allocation Percentage for that segment of
waterline;
13
(vi)In the event that less than all Parties participate in a legal proceeding
that relates to the New Hope Waterline, then all Parties will share the costs and
Party's Liability Allocation Percentage; provided, however, that if the litigation or
Eh Party
shall provide payment according to its Cost Allocation Percentage for that segment of
w,tern.:
(vii)(vi.) Cedar Park will not agree to any resolution of the dispute
that would increase the Waterline Costs without the written consent of all Parties;
(viii)(vii) Cedar Park will not agree to any compromise or resolution
that would decrease the costs of the New Hope Road Reconstruction relative to the New
Hope Waterline without the written consent of all Parties;
(ix)(viii) In the event the dispute or litigation relates solely to the
New Hope Road Reconstruction, neither LCRA nor Round Rock shall have any
obligation to provide payment of any legal or other costs or expenses incurred by Cedar
Park in connection therewith, and to the maximum extent provided by the laws of the
State of Texas, CEDAR PARK SHALL INDEMNIFY, DEFEND AND HOLD
HARMLESS LCRA AND ROUND ROCK AND THEIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND
ALL CLAIMS, DEMANDS, DEBTS, SUITS, CAUSES OF ACTION, LOSSES,
DAMAGES, JUDGMENTS, FINES, PENALTIES, LIABILITIES, AND COSTS,
INCLUDING REASONABLE ATTORNEY FEES AND DEFENSE COSTS
INCURRED BY ROUND ROCK OR LCRA ARISING OUT OF OR RELATING TO
THE NEW HOPE ROAD RECONSTRUCTION DISPUTE;
(x)(ix) In the event that the dispute relates both to the New Hope Road
Reconstruction and the construction of the New Hope Waterline, then the Parties shall
endeavor in good faith to properly allocate costs between the two categories. If the
Parties cannot unanimously agree to the proper allocation within 30 days, then the costs
shall be allocated between the New Hope Waterline and the New Hope Road
Reconstruction according to the Balanced Bid Percentage; provided, however, any Party
may appeal such allocation through the dispute resolution process set forth in this
Agreement; and
(x) Any monetary awards, judgments, or settlements received by
Cedar Park in litigation that relates to the New Hope Waterline shall be deposited into
the Construction Fund and applied against the Waterline Costs. Each Party shall
receive credit in an amount equal to the product obtained by multiplying each Party's
Liability Allocation Percentage by the amount of the award, judgment or settlement
deposited into the Construction Fund (unless the proceeding relates solely to one
segment of the New Hope Waterline, in which event the monetary awards, judgments,
or settlements shall be credited between the Parties according to their respective Cost
Allocation Percentages for that segment of waterline).
14
V.
CONVEYANCE
5.01 Conveyance. Within thirty (30) days after receipt of the engineer's concurrence
letter pursuant to Section 4.07(c) above, the Parties will conduct a Conveyance, at which Cedar
Park will convey an undivided ownership interest in the Regional Waterline Interests to each of
the other Parties.
5.02 Manner of Transfer.
(a) Transfer by Cedar Park to LCRA and Round Rock of all Real Property that
constitutes the Regional Waterline Interests will be in the form of a deed with special warranty
(with respect to fee property) and an assignment of easement rights (with respect to easements)
and shall be in a form reasonably agreed upon by the Parties to such transfer.
(b) Transfer by Cedar Park to LCRA and Round Rock of all personal property and
Contracts that constitute Regional Waterline Interests will be by Bill of Sale and Assignment in
the form attached hereto as Exhibit "G".
5.03 Costs and Expenses. Each Party will be responsible for all costs and expenses
that it incurs in connection with the Conveyance.
5.04 Risks Pending Conveyance. Cedar Park agrees that, until Conveyance, it will
maintain, or cause to be maintained, insurance in such amounts as are reasonable and prudent on
the Regional Waterline Interests. If, between the Effective Date and Conveyance, any part,
whether substantial or minor, of the Regional Waterline Interests are destroyed or rendered
useless by fire, flood, wind, or other casualty, Cedar Park will make repairs and replacements to
restore the Regional Waterline Interests to their prior condition. The costs of securing the
foregoing insurance shall be Waterline Costs for which all Parties shall contribute payment.
VI.
OWNERSHIP AND OPERATION OF TRANSMISSION LINE
6.01 Ownership Interests. After Conveyance, each Party shall hold an undivided
ownership interest in each segment of the New Hope Waterline equal to the Party's Cost
Allocation Percentage, and each Party shall own a percentage of capacity in the facilities equal to
that Party's Reserved Capacity in such segment. The Parties mutually acknowledge and agree
that such ownership and right of use may be revised in accordance with any subsequent
agreement(s) entered into by the Parties relating to the Regional Project.
6.02 Right of Use.
(a) It is the mutual intent of the Parties that the operation and use of the New Hope
Waterline will be addressed in one or more subsequent agreements entered into by the Parties
relating to the ownership, use and operation of the Regional Project. In the event that the Parties
enter into such agreement(s), then the terms of this Article VI shall be superseded and replaced
for all purposes by the terms of such agreement(s).
15
(b) In the event that all of the Parties do not enter into the necessary agreement(s) for
construction and operation of the Regional Project by January 1, 2007December 15, 2006, then
each Party thereafter shall have a permanent and irrevocable right to use and transport raw water
or Water through the New Hope Waterline subject to the following terms and conditions:
(i) If, after December 15, 2006, Cedar Park desires to commence
utilization of the New Hope Waterline for the transmission of potable water, it shall
provide written notice thereof to Round Rock and LCRA.. The notice shall specify the
proposed date of commencement of use of the waterline improvements, which date
shall be not less than 4 months, nor more than 9 months, after the notice. Round Rock
and LCRA shall have a thirty (30) day period from receipt of the notice to agree that the
New Hope Waterline will. be used for potable water delivery purposes only. In the
event either or both of such Parties do not agree, then they shall provide written notice
thereof to Cedar Park within the 30 day response period. If LCRA or Round Rock
respond that either or both of such Parties desire to utilize the line for raw water
transmission purposes, then Cedar Park shall have a thirty (30) day period from receipt
of such response to purchase Round Rock's and LCRA's respective interests in the New
Hope Waterline by providing payment in the full amount to each such Party of all
Waterline Costs previously paid by such Party. If Cedar Park fails to provide payment
in full within such thirty day period, then Round Rock and LCRA shall have a thirty
(30) day period to purchase Cedar :Park's interest in the New Hope Waterline by
providing payment to Cedar Park in the full amount of all Waterline Costs previously
paid by Cedar Park. If Cedar Park does not receive timely payment in full, then the
Parties may thereafter utilize the New Hope Waterl.i.ne only for potable water
transmission purposes, except as otherwise agreed upon by all. Parties. If Round Rock
and LCRA do provide payment in full, then Cedar Park shall immediately convey and
assign its rights, title and interest in the New Hope Waterline to Round Rock and LCRA
for all purposes.
(i)The Nev, Hope Waterline will be used for transporting Water or raw
purchase all of C-dar Park's rights and interest in and to the New Hope Waterline by
Park shall convey its ownership interest and capacity, and all rights associated
therewith, to Round Rock and LCRA immediately upon receipt of payment; or (ii)
(ii) The total quantity of raw water or Water delivered through the
New Hope Waterline shall never exceed the combined Reserved Capacity of all of the
Parties.
(iii) Each Party shall utilize its Reserved Capacity and interest in the
New Hope Waterline in accordance with good business and engineering practices and in
accordance with all local, state or federal legal requirements applicable thereto.
16
(iv) Responsibility for the transportation and delivery of all raw water
or Water shall remain with each Party to the point of entry into the New Hope
Waterline, and upon exiting the facilities, shall again pass to that Party;
(v) No Party may transport raw water or Water through the pipeline in
a quantity that exceeds its Reserved Capacity;
(vi) No Party may use another Party's Reserved Capacity without that
Party's written consent;
(vii) No Reserved Capacity may be allocated to or used by anyone other
than the Party that owns that capacity, unless the affected Party specifically agrees in
writing to the allocation or use;
(viii) No Party or other person or entity may transport Water through, or
otherwise use, the New Hope Waterline in a manner that materially interferes with or
impairs another Party's right to use its Reserved Capacity in the facilities. In the event
that a Party believes the proposed or actual operation or use of the facilities by another
Party potentially or does materially interfere with or impair the rights of such
complaining Party to use its Reserved Capacity, the complaining Party may initiate the
formal dispute resolution process set forth in this Agreement;
(ix) Prior to making any tap or connection into the New Hope
Waterline, each Party shall provide written notice to the other Parties and provide such
Parties an opportunity to participate in such tap or connection. The notice shall specify
the proposed quantity of Water or raw water to be delivered through the facilities, the
point of entry and point of exit, a description of the connecting facilities, and other
relevant information. The Parties shall engage in good faith negotiations for a period
not less than 60 days regarding the joint participation in such tap or connection. If the
negotiating Parties have not reached an agreement within 60 days regarding the joint
participation in such tap or connection and LCRA and Round Rock do not purchase
Cedar Park's interest as set forth above (in the event the proposed tap or connection
relates to the transportation of raw water through the New Hope Waterline Segment),
then any of the negotiating Parties may initiate the dispute resolution process set forth in
this Agreement for a determination of the terms and conditions pursuant to which the
negotiating Parties shall jointly participate in the tap or connection. No Party may
proceed with the tap or connection until the dispute resolution process is completed; and
(x) The rate and quantity of raw water or Water entering and exiting
the New Hope Waterline shall be metered unless otherwise agreed upon by all Parties.
The cost :and expense of the connection and meter shall be borne solely by the Party
making such tap or connection, or as otherwise agreed by the Parties during
negotiations. All Parties shall have access to such metering equipment at all reasonable
times for inspection and examination. The reading, calibration and adjustment of
meters shall be done by the Party that installed the meter(s) after two (2) working days
notice to the other Parties and in the presence of a representative of any other Party if
requested by that Party. The Party shall calibrate the meter(s) at least once in each year
17
of operation. All readings of meters will be entered upon proper books of record in
computer records maintained by the metering Party. Upon written request, any other
Party may have access to said record books or computer printouts during reasonable
business hours.
6.03 Transfer of Reserved Capacity.
(a) Any Party may transfer any portion of its ownership interest and Reserved
Capacity in the New Hope Waterline to another Party in exchange for such consideration as the
parties to such transfer shall deem appropriate. The Party making any such transfer shall provide
written notice to the other Parties, signed by the Parties accomplishing the transfer, specifying
the amount of the transferred ownership interest and Reserved Capacity, and providing that the
Parties ratify and confirm their obligations under this Agreement with respect to the transferred
capacity. No such transfer shall be effective until and unless such notice is provided. A transfer
of Reserved Capacity shall not change any payment or other obligation of the Parties, unless
agreed to by all Parties.
(b) LCRA may transfer all or a portion of its ownership interest and Reserved
Capacity in the New Hope Waterline to Leander in accordance with the same terms and
procedures set forth above. Save and except the transfer and assignment to Leander, no Party
may transfer or assign any portion of its ownership interest and Reserved Capacity in the New
Hope Waterline t� any person or entity that is not a Party to this Agreement without providing
sixty (60) days prior written notice to the other Parties, which notice shall specify the proposed
terms and consideration for the transfer. Either or both of the Parties receiving such notice shall
have the right to purchase the ownership interest and Reserved Capacity under the same terms
and consideration set forth in the written notice. In the event the Parties do not purchase such
interest and Reserved Capacity during the 60 day period, then the transferring Party may proceed
with the transfer in accordance with the terms and consideration set forth in the written notice.
In the event both of the remaining Parties desire to acquire the ownership interest and Reserved
Capacity of the transferring Party, then they each shall be entitled to acquire a pro rata portion
thereof according to their existing ownership interests in the facilities being conveyed.
6.04 Operation and Maintenance Expenses.
(a) In the event that all or any portion of the New Hope Waterline needs to be
maintained, repaired or replaced for any reason prior to the commencement of operation of the
facilities by any Party, then the Project Committee shall unanimously determine in good faith
which Party is most qualified to undertake and complete the maintenance or repair in a cost
effective and timely fashion, along with the estimated cost thereof. Within thirty days of such
determination, each of the Parties shall provide payment to the repairing Party in an amount
equal to the product of the Party's Cost Allocation Percentage for the facility multiplied by the
estimated Operation and Maintenance Expense. In the event that the actual Operation and
Maintenance Expenses exceed the estimate of the Project Committee, then each Party shall
contribute payment of the remaining costs to the repairing Party within thirty days of receipt of
an invoice from that Party. Payment of the additional costs shall be made by each Party in an
amount equal to the product of the Party's Cost Allocation Percentage for the facility being
repaired multiplied by the additional Operation and Maintenance Expenses. Any excess
18
payment by the Parties shall be refunded by the repairing Party to each of the other Parties in
amounts equal to the amount of the excess funds multiplied by each such Party's Cost Allocation
Percentage in such facility.
(b) After commencement of operation of the New Hope Waterline, any Party or
Parties that proposes to undertake the non -emergency maintenance, repair or replacement of all
or any portion of the New Hope Waterline shall provide prior written notice to the Project
Committee specifying: (i) the nature and cause of the problem, if known; (ii) the nature of the
corrective action proposed to be undertaken; (iii) the estimated cost of the corrective action; (iv)
the proposed date of commencement of the corrective action; and (v) the duration of the
corrective action and its potential impact on the use of the facilities by the other Party or Parties.
The Project Committee shall have not less than 10 business days to review and comment upon
the proposed corrective action. The repairing Party shall perform the repair only in accordance
with the terms and requirements unanimously agreed upon by the Project Committee. If the
Project Committee is unable to unanimously agree upon the terms of the proposed repair during
this time period, then any Party may pursue the dispute resolution process for a determination as
to the manner in which the repair shall occur (unless the matter becomes an emergency, in which
event the repairing Party may proceed with the repair as set forth below).
(c) In the event of an emergency, any Party may immediately undertake the repair of
the New Hope Waterline, but shall provide written notice to the other Parties as soon as
practicable specifying the nature of the emergency and the repair.
(d) Operation and Maintenance Expenses shall be paid by the Parties as follows:
(i) Prior to the commencement of operation of the New Hope
Waterline, Operation and Maintenance Expenses shall be paid by the Parties according
to each Party's ownership interest and Reserved Capacity in the facility being repaired
or maintained; and
(ii) After commencement of operation of the New Hope Waterline,
Operation and Maintenance Expenses shall be paid by the Parties according to the
quantity of Water or raw water (as applicable) transported by each Party through the
segment being repaired or maintained during the twelve month period prior to the repair
or maintenance event.
(e) Capital Expenses shall be paid by the Parties according to each Party's ownership
interest and Reserved Capacity in the facility being repaired, rehabilitated or replaced.
6.05 Right of Way.
(a) Upon completion of construction of the New Hope Road Relocation, Cedar Park
agrees that it shall not take any action with respect to the right-of-way in which any portion of
the New Hope Waterline is located that would require relocation of the facilities without the
written consent of all the Parties, unless such relocation is accomplished at Cedar Park's sole
cost and expense, and accomplished in a manner that does not materially interfere with the
transportation of Water or raw water by the other Parties.
19
(b) Cedar Park agrees that it shall not take any action with respect to its public right-
of-way that would prevent, interfere with, or hinder any other Party from accessing the New
Hope Waterline for repairs, maintenance, operation, and other reasonable purposes, and each
other Party is hereby authorized to perform or engage in such actions in said right-of-way.
VII.
NEGOTIATION AND MEDIATION OF DISPUTES
7.01 Agreement Regarding Remedies. The Parties agree that their respective
obligations under. this Agreement are unique and the failure by any Party to perform its
obligations under this Agreement would not be capable of being appropriately remedied by
award of damages to any other affected Party to this Agreement and in any event, such damages
would be difficult, if not impossible, to determine because of the unique nature of the Parties'
obligations to each other hereunder. Further, the Parties agree that the remedy of termination of
this Agreement by any Party is inappropriate and not in the public interest. Therefore, the Parties
agree that they shall be entitled, and limited, to the remedies of specific performance, mandamus
and injunction in the event of any breach of any obligation by any Party under this Agreement.
The Parties hereby waive any requirement that they be required to provide any bond or other
surety in order to obtain any of the agreed upon remedies.
7.02 Agreement to Negotiate First to Resolve Issues. The Parties agree to attempt
first to resolve disputes concerning this Agreement amicably by promptly entering into
negotiations in good faith. The Parties agree that they will not refer any dispute to another
dispute resolution procedure including mediation or litigation until they have first made
reasonable and good faith efforts to settle their differences by joint negotiations conducted in a
timely manner.
7.03 Agreement to Mediate. If any dispute cannot be resolved through good faith
negotiation, then the Parties shall endeavor to resolve the dispute by mediation as provided
herein.
7.04 Presentation of Written Claim Regarding Disputes Not Resolved by
Negotiation. In the event that a dispute is not resolved as a result of such negotiations, either
party may at any time give formal written notice to the other of a "claim." A "claim" as used
herein means a demand or assertion by one of the Parties (the "claimant") seeking, as a matter or
right, adjustment or interpretation of contract terms, the payment of money, an extension of time
for performance or other relief with respect to the terms of this Agreement or any other dispute
or matter in question among the Parties arising out of or related to this Agreement. Such notice
shall be in writing. After such notice is given, the dispute resolution procedure provided for
below shall immediately enter into effect.
7.05 Performance During Mediation. The claimant shall continue with performance
under this Agreement pending mediation of the dispute.
7.06 Appointment of Mediator. Promptly following the making of a written claim by
any Party, the Parties will consult with one another to agree on the appointment of a mediator
acceptable to all Parties. The mediator shall have experience in matters of the kind giving rise to
20
the claim. If within five (5) business days the Parties are unable to agree on the appointment of a
mediator, then any Party may request the appointment of a mediator by the Center for Public
Policy Dispute Resolution at the University of Texas at Austin School of Law. The Parties shall
endeavor to secure such appointment from the Center for Public Policy Dispute Resolution
within ten (10) business days after the request for same is made. The Parties agree to utilize the
mediator appointed by the Center unless they ultimately reach agreement on an alternative
selection and give notice to the Center that another selection has been made by agreement.
7.07 Rules for Mediation. The Parties agree to the following stipulations concerning
the conduct of the mediation:
(a) The mediator shall be impartial among the Parties and shall have no conflict of
interest.
(b) The mediator shall not have any past, present or anticipated financial interest in
the Agreement except for the payment for services as mediator nor shall the mediator have been
previously employed or acted as a consultant, attorney, employee, engineer, architect, contractor
or subcontractor of any Party nor have any present or anticipated future engagement of the kind
described. Before the engagement of the mediator is finalized, the mediator shall provide to the
Parties a disclosure statement containing a resume of experience, a description of past, present or
anticipated future relationships to the Parties, their engineers, contractors, subcontractors,
attorneys, architects, or consultants.
(c) The mediation shall be held at a time and location mutually agreeable to the
Parties and the mediator provided, however, that the mediation shall commence no later than
fifteen (15) business days following the confirmation of appointment.
(d) At least five (5) business days prior to the mediation, the claimant shall submit to
the Parties and the mediator a statement of the claimant's position, the issues that need to be
resolved and a summary of the arguments supporting the claimant's position. At least two (2)
business days prior to the mediation, the responding Parties shall submit their written response to
the claimant's statement and provide a summary of their arguments in response.
(e) If the Parties agree that independent expert or technical advice would be helpful
in facilitating a negotiated resolution of the dispute, the mediator may make arrangements to
obtain such advice, and may, with the agreement of the Parties, make arrangements for an
independent expert to render a non-binding advisory opinion with respect to any technical
matters in dispute after hearing the contentions of the Parties with respect thereto. The expenses
of obtaining such independent advice or advisory opinion shall be borne equally by the Parties.
(f) No Party shall engage in any private interview, discussion or argument with the
mediator concerning the subject matter of the mediation.
(g) The fees of the mediator and any other costs of administering the mediation shall
be borne equally by the Parties unless otherwise agreed among them in writing.
21
(h) The mediator may promote settlement in any manner the mediator believes
appropriate at one or several mediation sessions as agreed to by the Parties. The mediation shall
continue only so long as desired by the Parties and with the consent of all of them.
(i) Mediation sessions shall be private unless otherwise required by law. Persons
other than the representatives of the parties may attend mediation sessions only with the
permission of all Parties and the consent of the mediator.
(j) All communications made in the course of the mediation process including any
advice or advisory opinions rendered shall be confidential in accordance with V.T.C.A. Civil
Practice and Remedies Code, Section 154.073.
7.08 Exception. Notwithstanding the foregoing provisions of Sections 7.02-7.07, the
Parties agree that those provisions shall not be applicable in emergency situations.
VIII.
GENERAL PROVISIONS
8.01 Authority. This Agreement is made in part under the authority conferred in
Chapter 791, Texas Government Code and Section 402.001, Texas Local Government Code.
8.02 Effect on Regional Project Obligations. The Parties mutually acknowledge
and agree that although this Agreement is being entered into in connection with the planning and
the goal of implementing the Regional Project, this Agreement shall in no manner bind or
obligate the Parties to pursue or participate in the Regional Project, or any individual efforts that
may be undertaken in connection therewith. Similarly, in the event the Regional Project is not
successfully implemented or any of the Parties discontinue their joint efforts to pursue the
Project, then this Agreement shall not be impacted thereby, and shall remain in full force and
effect for all purposes. The Parties confirm that further agreements regarding the Regional
Project are contemplated and will not be affected or limited by this Agreement.
8.03 Severability. The provisions of this Agreement are severable and, if any
provision 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 not be affected and this Agreement
will be construed as if the invalid portion had never been contained herein.
8.04 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.
8.05 Payments from Current Revenues. Any payments required to be made by a
Party under this Agreement will be paid from current revenues or other funds lawfully available
to the Party for such purpose.
8.06 Cooperation. The Parties agree to cooperate at all times in good faith to
effectuate the purposes and intent of this Agreement.
22
8.07 Entire Agreement. This Agreement contains the entire agreement of the Parties
regarding the subject matter hereof and supersedes all prior or contemporaneous understandings
or representations, whether oral or written, regarding the subject matter. The Parties confirm that
further agreements regarding the Regional Project are contemplated and will not be affected or
limited by this Agreement.
8.08 Amendments. Any amendment of this Agreement must be in writing and will be
effective if signed by the authorized representatives of the Parties.
8.09 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.
8.10 Notices. Any notices given under this Agreement will be effective if (i)
forwarded to a Party by hand -delivery; (ii) transmitted to a Party by confirmed telecopy; or (iii)
deposited with the U.S. Postal Service, postage prepaid, certified, to the address of the Party
indicated below:
CEDAR PARK:
with copy to:
ROUND ROCK:
with copy to:
23
600 North Bell Blvd.
Cedar Park, Texas 78613
Attn: Sam Roberts
Telephone: (512) 258-4121 x6321
Facsimile: (512) 258-6083
Email: roberts@ci.cedar-park.tx.us
Leonard Smith
P.O. Box 684633
Austin, Texas 78768
Telephone: (512) 474-6707
Facsimile: (512) 474-6706
Email: lsmith@leonardsmithlaw.com
221 East Main
Round Rock, Texas 78664
Attn: Jim Nuse
Telephone: (512) 218-5410
Facsimile:(512) 218-7097
Email: jnuse@round-rock.tx.us
Steve Sheets
309 E. Main Street
Round Rock, Texas 78664-5264
Telephone: (512) 255-8877
Facsimile: (512) 255-8986
Email: slsheets@sheets-crossfield.com
LCRA:
with copy to:
3701 Lake Austin Blvd.
Austin, Texas 78703
Attn: Scott Ahlstrom
Telephone: (512) 473-3386
Facsimile: (512) 397-6722
Email: scott.ahlstrom@lcra.org
Madison Jechow
3700 Lake Austin Blvd., Ste. H424
Austin, Texas 78703
Telephone: (512) 473-4067
Telecopy: (512) 473-4010
Email: Madison.Jechow@a,lcra.org
8.11 Exhibits. The following exhibits are attached to this Agreement and incorporated
herein by reference:
Exhibit A -
Exhibit B -
Exhibit C -
Exhibit D -
Exhibit E -
Exhibit F -
Exhibit G -
Cost Allocation Percentages
Cost Estimate
Liability Allocation Percentages
Reserved Capacity
Segment Description
Estimated Waterline Costs
Form Bill of Sale and Assignment
8.12 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.
8.13 Authority. Each Party represents and warrants that it has the full right, power
and authority to execute this Agreement.
24
ATTEST: CITY OF ROUND ROCK:
City Secretary
By:
Printed Name:
Title:
Date:
ATTEST: CITY OF CEDAR PARK:
City Secretary
By:
Printed Name: Robert S. Lemon
Title: Mayor
Date:
LOWER COLORADO RIVER AUTHORITY:
By:
Printed Name: Scott B. Ahlstrom, P.E., PMP
Title: Manager, Water & Wastewater Utility
Services
Date:
25
EXHIBIT "A"
COST ALLOCATION PERCENTAGES
Waterline Segment A
Cedar Park: 14.18 %
Round Rock: 38.56 %
LCRA: 47.26 %
Waterline Segment B
Cedar Park: 0 %
Round Rock: 51.78 %
LCRA: 48.22 %
Exhibit "B"
GENERAL ITEMS
COST
COST
SEGMENT A
SEGMENT A
$89,496.35
SEGMENT B
$334,693.99
CONTINGENCY (15%)
$95,979.00
$42,419.03
GENERAL :SUBTOTAL, =.:: . '...a::<:'f?` :=nv
(ti:::
..
ROADWAY ITEMS
COST
COST
SEGMENT A
SEGMENT A
$13,316.00
$115,379.00
SEGMENT B
CONTINGENCY (15%)
$95,979.00
$3,189.80
CONTINGENCY (15%)
'..:;.... :
$21,135.80
ROADWAY;SUBTOTi4L,;'':::`-':.'
...`
$22493 8D`.i
`:=i :.c
DRAINAGE ITEMS
COST
COST
SEGMENT A
SEGMENT B
$13,316.00
SEGMENT 8
$18,582.00
CONTINGENCY (15%)
$3,189.80
DRAINAGE;SUBTOTAI-'' '=' `<: t:::.`::
'..:;.... :
$35r_. i._0_::7-: _.
WATER ITEMS
COST
COST
$1,170,897.05
SEGMENT B
SEGMENT A
$799,980.00
SEGMENT B
$9.237,414.00
CONTINGENCY (15%)
$1,003,739.40
WATER SUBTO.TAL:'';c;.i::.::
.: :
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SECTION TOTALS
COST
SEGMENT A
$1,170,897.05
SEGMENT B
$11,139,669.34
�n
Lockwood, Andrews
& Newnam, Inc.
A LEO A DALY COMPANY
...r A tiii.,...,* . 0:1,,,I...
e, .*
6S AE.USA (-RIPER 1
ry 95685 : ,
GEla 1,011A
EXHIBIT "B", cont.
WATERLINE CONSTRUCTION COST ESTIMATE ALLOCATION
Waterline Segment A
Cedar Park: $166,033.20 (14.18 %)
Round Rock: $451,497.90 (38.56 %)
LCRA: $553,365.95 (47.26 %)
Waterline Segment B
Cedar Park: $0 (0 %)
Round Rock: $5,768,120.78 (51.78 %)
LCRA: $5,371,548.56 (48.22 %)
EXHIBIT "C"
LIABILITY ALLOCATION PERCENTAGES
EXHIBIT "D"
RESERVED CAPACITY
Segment A
Cedar Park: 15 MGD
Round Rock: 40.8 MGD
LCRA: 50 MGD
Segment B
Cedar Park: 0
Round Rock: 40.8 MGD
LCRA: 38 MGD
EXHIBIT "E"
SEGMENT DESCRIPTION
GRAPHIC SCALE
250 500 1000
( IN FEET)
1 in. = 1000 ft.
A
STA. 8+75
END SEGMENT A
BEGIN SEGMENT 8
1'400.
STA. 1+00
BEGIN SEGMENT A
O
STA. 113+10
END SEGMENT B
w SEGMENT A: 78" — STA. 1+00 TO STA. 6+10
72" — STA. 6+10 TO STA. 8+75
SEGMENT B: 72' — STA. 8+75 TO STA. 113+10
J
!
!
qTY OF CEDAR PARK ism
78'772" WATER LINE
EXHIBIT "E"
Lockwood, Andrews
& Nownam, Inc.
A LEO A DALY COMPANY
EXHIBIT "F"
ESTIMATED WATERLINE COSTS
Waterline Segment A*
Cedar Park: $85,493.64
Round Rock: $375,762.03
LCRA: $729,344.77
Waterline Segment B*
Cedar Park: $0
Round Rock: $5,905,491.37
LCRA: $5,499,474.58
Cedar Park Project Management
Round Rock:
LCRA:
$89,786.66
$85,213.34
*Costs for Segment A and Segment B include waterline construction, construction
administration, and waterline inspection. Costs for Segment A also include an
additional $166,667 capital cost for LCRA and an $83,333.50 credit for Cedar
Park and Round Rock.
EXIIIBIT "G"
FORM BILL OF SALE AND ASSIGNMENT
BILL OF SALE AND ASSIGNMENT
Date:
Grantor: City of Cedar Park
Grantor's Mailing Address (including county):
Grantee:
City of Cedar Park
600 North Bell Blvd.
Cedar Park, Texas 78613
Travis County
Grantee's Mailing Address (including county):
Consideration: Ten Dollars ($10.00) and other good and valuable consideration in hand
paid by Grantee.
Facilities: See Exhibit "A" attached hereto.
Intangible Assets: See Exhibit "B" attached hereto.
Grantor, for the consideration herein expressed, sells, assigns, and transfers to Grantee:
a) the Facilities as described on Exhibit "A"; and,
b) the Intangible Assets described on Exhibit "B."
Reference is hereby made to that certain "Interlocal Agreement Regarding Construction
of Regional Waterline" dated . 2006, between Grantor, Grantee and
("Agreement"). The covenants and representations set forth in the Agreement are hereby
incorporated herein by reference as if such covenants and representations were fully set out
herein.
Grantor agrees to hereafter cooperate with Grantee, take such actions and execute such
other specific documents as may be necessary or appropriate to accomplish the transfers
contemplated in the Agreement and this document.
When the context requires, singular nouns and pronouns include the plural. References
to defined terms shall refer to those terms as defined in the Agreement.
Executed effective
GRANTOR:
City of Cedar Park, Texas
By:
Printed Name:
Title:
Date:
GRANTEE:
By:
Printed Name:
Title:
Date:
F& C Draft 2/038/06
EXHIBIT A
Description of Facilities
1. An undivided percentage ( %) ownership interest in Segment A of the New
Hope Waterline and all associated equipment, facilities and appurtenances thereto, as
more particularly described in the Agreement.
2. An undivided percentage ( %) ownership interest in Segment B of the New
Hope Waterline and all associated equipment, facilities and appurtenances thereto, as
more particularly described in the Agreement.
F&C Draft 2/038/06
EXHIBIT B
Description of Intangible Assets
1. All rights, including but not limited to those rights arising under bonds, warranties or
other guarantees, held by Cedar Park pertaining to the Facilities described in Exhibit "A"
attached hereto.
DATE: February 2, 2006
SUBJECT: City Council Meeting - February 9, 2006
ITEM: 10.D.5. Consider a resolution authorizing the Mayor to execute an Interlocal
Agreement Regarding Construction of Regional Waterline with the City of
Cedar Park and the Lower Colorado River Authority.
Department: Water and Wastewater Utilities
Staff Person: Tom Clark, Utilities Director
Justification:
The Lake Travis Raw Water Supply System study, completed, in September 2005, recommended
that the most cost effective alternative to the City for accessing Lake Travis water was to develop
a partnership with the City of Cedar Park and / or LCRA to develop a regional treatment and
delivery system. The proposed treated water pipeline route will follow New Hope Road in Cedar
Park which is scheduled for construction to be completed March 2007. This Interlocal agreement
will allow the City of Round Rock to take advantage of the cost savings available by installing this
relatively short portion of the regional delivery system, being 11,000 linear feet of a 72 -inch
water line under partnership with Cedar Park and the LCRA.
Funding:
Cost:
Source of funds:
$6,500,000
Capital Project Funds (Self -Financed Utility)
Outside Resources: City of Cedar Park
LCRA
Background Information:
This agreement will authorize the construction of approximately 11,000 feet of 72 -inch Water Line
to be installed with the Cedar Park New Hope Road Improvements project from Bagdad Road to
183A. Total cost of the project is estimated to be $11.6 million with Round Rock's share totaling
$6,500,000. Staff is recommending authorization of a not to exceed amount of $6.5 million. This
amount is based upon the engineers cost estimate and if bids are higher than anticipated. Staff
will return to Council to request additional authorization. This agreement will guarantee Round
Rock 40.8 Million Gallons per Day capacity in the pipeline.
Public Comment: N/A
EXECUTED
DOCUMENT
FOLLOWS
INTERLOCAL AGREEMENT REGARDING
CONSTRUCTION OF REGIONAL WATER LINE
THE STATE OF TEXAS
KNOW ALL BY THESE PRESENTS:
COUNTY OF WILLIAMSON
THIS INTERLOCAL AGREEMENT REGARDING CONSTRUCTION OF
REGIONAL WATER LINE ("Agreement") is entered into between the City of Round Rock,
Texas, a Texas home -rule city ("Round Rock"); the City of Cedar Park, Texas, a Texas home -
rule city ("Cedar Park"), and the Lower Colorado River Authority, a political subdivision of the
State of Texas ("LCRA"). In this Agreement, Round Rock, Cedar Park and LCRA are
sometimes individually referred to as "a Party" and collectively referred to as "the Parties".
WHEREAS, the growth of the Cities of Round Rock, Cedar Park, and Leander
necessitates the development of additional water supplies for each of these communities; and
WHEREAS, LCRA has entered into that certain "Wholesale Potable Water Supply
Agreement" dated as of March 2, 1998 with the City of Leander pursuant to which LCRA agreed
to construct facilities from time to time in order to provide a wholesale water supply to Leander
sufficient to meet Leander's needs; and
WHEREAS, the Parties mutually acknowledge the economies of scale and significant
cost benefits associated with the development of a regional water system and have agreed to
jointly pursue a regional water supply system (the "Regional Project"), which will ultimately
provide an additional 105.8 million gallons per day of potable water supply to meet future water
demands of the Parties, based on projected population growth; and
WHEREAS, the Regional Project will include a water transmission main and related
improvements within or adjacent to the right-of-way for New Hope Road from Bagdad Road to
U.S. 183A (the "New Hope Water Line"); and
WHEREAS, Cedar Park is obligated to reconstruct New Hope Road immediately in
order to provide a connection to the 183-A Tollway, which is currently under construction and is
scheduled to be completed in March 2007; and
WHEREAS, the Parties desire to proceed with construction of the New Hope Water Line
simultaneously with the reconstruction of New Hope Road by Cedar Park; and
WHEREAS, the Parties desire to enter into this Agreement in order to provide for the
construction of the New Hope Water Line.
1
Interlocal Agreement Regarding
Construction of Regional Water Line
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises and agreements of the Parties contained in this Agreement, the Parties agree as follows:
I.
DEFINITIONS
When used in this Agreement, capitalized terms not otherwise defined shall have the
meanings set forth below:
1.01 "Agreement" means this Interlocal Agreement Regarding Construction of
Regional Water Line.
1.02 "Balanced Bid" means a bid submitted by a contractor for construction of the
Project in which the percentage of the bid costs for construction of the New Hope Water Line are
not less than forty seven percent (47%) and not more than sixty three percent (63%) of the
contractor's total bid costs for the Project.
1.03 "Balanced Bid Percentage" means the actual ratio of the bid costs for construction
of the New Hope Water Line relative to the bid costs for the Project submitted by the Project
Contractor.
1.04 "Bid Documents" means the plans and specifications, together with all contract
documents and bid instructions, relating to construction of the New Hope Water Line.
1.05 "Capital Expenses" means all acquisition, construction, reconstruction,
rehabilitation, replacement and decommissioning costs as those terms are generally understood
in standard accounting practice as applied to projects similar in nature to the New Hope Water
Line. Depreciation shall not be considered a Capital Expense. Capital Expenses will not include
any Operation and Maintenance Expenses.
1.06 "Cedar Park" means the City of Cedar Park, Texas.
1.07 "Cedar Park Connection Facilities" means those certain water system
improvements being constructed as part of the Project for future connection of the New Hope
Water Line to Cedar Park's transmission and distribution system, as more particularly described
in the Bid Documents.
1.08 "Construction Fund" means a fund to be established and administered by Cedar
Park in accordance with Section 4.06 in order to provide monies to pay the Water Line Costs.
1.09 "Contracts" means the contracts, permits, approvals, and licenses relating to or
arising out of the acquisition, construction, and operation of the New Hope Water Line.
1.10 "Conveyance" means the execution and delivery of all documents transferring and
assigning an undivided interest in the New Hope Water Line and associated Contracts and Real
2
Interlocal Agreement Regarding
Construction of Regional Water Line
Property from Cedar Park to the other Parties, and the performance of all acts necessary to
complete such execution and delivery.
1.11 "Cost Allocation Percentage" means the percentage of Water Line Costs to be
paid by each Party, which percentage shall be based on each Party's Reserved Capacity in each
segment of the New Hope Water Line. The Cost Allocation Percentages for Segment A and
Segment B are set forth on Exhibit "A" attached hereto.
1.12 "Cost Estimate" means the engineering cost estimate for construction of the New
Hope Water Line, as set forth in Exhibit "B" attached hereto.
1.13 "Design Agreement" means that certain "Interlocal Agreement Regarding Design
of New Hope Regional Water Line" dated December 15, 2005 entered into by the Parties setting
forth the terms and conditions pursuant to which the Parties agreed to undertake and share
certain engineering costs related to the design of the New Hope Water Line; and
1.14 "Effective Date" means the last date of execution of this Agreement by the
Parties; provided all of the Parties must execute this Agreement for it to be effective.
1.15 "LCRA" means the Lower Colorado River Authority.
1.16 "LCRA Connection Facilities" means those certain water system improvements
being constructed as part of the Project for purposes of future connection of the New Hope Water
Line to the transmission and distribution system that serves the City of Leander, as more
particularly described in the Bid Documents.
1.17 "Liability Allocation Percentages" means the percentage of certain costs to be
paid by each of the Parties, as set forth on Exhibit "C" attached hereto. The Project Committee
shall revise the Liability Allocation Percentages within ten (10) days after award of a contract by
Cedar Park for construction of the New Hope Water Line based upon the actual bid submitted by
the Project Contractor.
1.18 "New Hope Road Reconstruction" means the reconstruction of New Hope Road
by Cedar Park in order to provide a connection to the 183-A Tollway.
1.19 "New Hope Water Line" means the water transmission line and related equipment
and appurtenances to be constructed within or adjacent to the right-of-way of New Hope Road
from Bagdad Road to U.S. 183A in Williamson County, Texas. The New Hope Water Line shall
consist of those two segments described hereinafter as Segment A and Segment B.
1.20 "Operation and Maintenance Expense" means all direct and indirect costs (other
than those incurred as a result of the gross negligence or willful misconduct of any Party) of
operation, maintenance, and repair of the New Hope Water Line. Depreciation shall not be
considered an item of Operation and Maintenance Expense.
3
Interlocal Agreement Regarding
Construction of Regional Water Line
1.21 "Party" or "Parties" means Cedar Park, Round Rock and/or LCRA, individually
or collectively, as applicable.
1.22 "PER" means the "Regional Water Supply Project Preliminary Engineering
Report" prepared by HDR Engineering, Inc. and dated March 2006.
1.23 "Project" means, collectively, the construction of the New Hope Water Line, the
Cedar Park Connection Facilities, the LCRA Connection Facilities, and the New Hope Road
Reconstruction.
1.24 "Project Committee" means the engineering representative(s) selected by each
Party for purposes of reviewing and approving certain technical and cost elements associated
with the construction and operation of the New Hope Water Line, as provided in Section 3.01 of
this Agreement.
1.25 "Project Contractor" means the contractor that enters into a contract with Cedar
Park for construction of the Project.
1.26 "Qualified Bid" means a bid submitted by a prospective contractor for
construction of the Project that meets all of the following criteria:
(i) The bid contains market prices for the costs of the New Hope
Water Line, including costs of materials, labor, overhead and profit;
(ii) The bid does not allocate a disproportionate share of the
contractor's anticipated profit, overhead, and other costs to the New Hope Water Line;
(iii) The bid is a Balanced Bid;
(iv) The total costs of construction of the New Hope Water Line
included within the bid do not exceed the Cost Estimate; and
(v) The contractor is qualified to construct the New Hope Water Line.
1.27 "Regional Water Line Interests" means the undivided interest in the New Hope
Water Line, the Real Property (if any), the Contracts and all other interests, if any, that Cedar
Park will acquire or construct and convey to the other Parties as provided in this Agreement.
1.28 "Reserved Capacity" means the total quantity of Water or raw water that a Party
is entitled to deliver into and transport through any portion of the New Hope Water Line
pursuant to this Agreement. The Reserved Capacity of each Party in Segment A and Segment B
is more fully identified on Exhibit "D" attached hereto.
1.29 "Real Property" means the fee or easement interests for any portion of the New
Hope Water Line that is not constructed within public rights of way.
4
Interlocal Agreement Regarding
Construction of Regional Water Line
1.30 "Regional Project" means the regional water supply system, which will ultimately
provide an additional 105.8 million gallons per day of potable water supply to meet future water
demands of the Parties, based on projected population growth, as more fully described in the
PER.
1.31 "Round Rock" means the City of Round Rock, Texas.
1.32 "Segment A" means that portion of the New Hope Water Line more particularly
described in the sketch attached hereto as Exhibit "E".
1.33 "Segment B" means that portion of the New Hope Water Line more particularly
described in the sketch attached hereto as Exhibit "E".
1.34 "Unbalanced Bid" means any bid for construction of the Project that is not a
Balanced Bid.
1.35 "Water" means potable water meeting those requirements for human consumption
and other domestic uses promulgated by the Texas Department of Health and/or the Texas
Commission on Environmental Quality.
1.36 "Water Line Costs" means those engineering, construction, inspection and other
costs relating to the New Hope Water Line that will be shared by the Parties and that are more
particularly described in Section 4.05(b). The total estimated Water Line Costs, along with each
Party's estimated share of such costs, are set forth on Exhibit "F" attached hereto. The Project
Committee shall revise the Water Line Costs within ten (10) days after award of a contract by
Cedar Park for construction of the New Hope Water Line based upon the actual bid submitted by
the Project Contractor.
II.
STATEMENT OF INTENT; CONDITION PRECEDENT; AND PRELIMINARY
SURVEYING COSTS
2.01 General. The purpose of this Agreement is to provide for construction of the
New Hope Water Line, as the first component of the Regional Project. The Parties intend to
enter into one or more agreements hereafter providing for financing, construction and operation
of the remaining components of the Regional Project. Although it is the current intent of the
Parties that the New Hope Water Line will be operated only as part of the Regional Project, this
Agreement provides for the operation, maintenance and repair of the New Hope Water Line in
the event that all Parties do not jointly proceed with construction of the Regional Project for any
reason.
2.02 Condition Precedent. The Parties' rights and obligations under this Agreement
are subject to the execution of this Agreement by all Parties on or before March 14, 2006. In the
event that all Parties do not execute this Agreement by said date for any reason and all Parties do
5
Interlocal Agreement Regarding
Construction of Regional Water Line
not agree to an extension in writing, then this Agreement shall be null and void, and shall
terminate, for all purposes.
2.03 Surveying Costs. In addition to providing for the construction of the New Hope
Water Line, the Parties mutually acknowledge and agree that they desire to cause certain
preliminary surveying to be conducted in connection with the Regional Project. Specifically, the
Parties agree that preliminary surveying is needed to generate strip maps of the raw water line
from the existing Cedar Park treatment plant to the intersection of FM 1431 and Lime Creek Rd.
The cost of the preliminary surveying is not to exceed $22,140 and will be shared by the Parties
as follows:
Cedar Park - $3,540.19
Round Rock - $9,630.90
LCRA - $8,968.91
III.
PROJECT COMMITEE
3.01 Composition of Project Committee. There is hereby created a Project
Committee to be composed of one representative (and one alternate representative) appointed by
each Party. The following persons are hereby designated as the initial members of the Project
Committee: Kenneth Wheeler and Sam Roberts (alternate representative) on behalf of Cedar
Park; Jason Eichler and Jim Clam (alternate representative) on behalf of LCRA; and Don
Rundell and Tom Clark (alternate representative) on behalf of Round Rock. Each representative
(and alternate representative) of a Party shall serve at the will of the governing body that the
person represents. Upon the death, resignation, or revocation of the power of such representative
(or alternate representative), the governing body of the appropriate Party shall promptly appoint
a new representative (or alternate representative) to the Project Committee, and shall
immediately notify the other Parties of such appointment.
3.02 Responsibility of Project Committee. The Project Committee shall represent
the individual and collective interests of the Parties with respect to the following matters:
(i)
The review and approval of the Bid Documents;
(ii) The review of the bid tabulation and qualification of prospective
contractors for the Project;
(iii) The identification of Qualified Bids;
(iv) The update of the estimated Liability Allocation Percentages and
Water Line Costs, as set forth in Exhibit "C" and Exhibit "F" respectively, based on the
actual bid costs of the Project Contractor;
6
Interlocal Agreement Regarding
Construction of Regional Water Line
(v) The determination of each Party's Construction Payment under
Section 4.06 based on the actual bid costs of the Project Contractor;
(vi) The periodic review of the status of construction of the New Hope
Water Line;
(vii) The review and approval of change orders relating to the
construction of the New Hope Water Line;
(viii) The review and approval of invoices for payment related to the
New Hope Water Line;
(ix) The confirmation of final completion of construction of the New
Hope Water Line; and
(x) Any other pertinent matters relating to the construction or
operation of the New Hope Water Line.
The Project Committee shall meet at regular intervals to review the matters over which it has
authority. The Project Committee shall be diligent, prompt and timely in reviewing and acting
on matters submitted to it.
Iv.
CONSTRUCTION OF NEW HOPE WATER LINE
4.01 General. The Parties mutually acknowledge and agree that all physical facilities
to be constructed or acquired as part of the New Hope Water Line are being designed by Cedar
Park pursuant to the Design Agreement. The Design Agreement shall remain in effect for all
purposes, and the terms and conditions of this Agreement shall not amend, modify or supercede
the Design Agreement.
4.02 Approval of Bid Documents.
(a) Without limitation, the Bid Documents must include the following requirements
relating to the construction of the New Hope Water Line:
(i) Each contractor bidding on the Project must segregate all bid costs
related to the construction of the New Hope Water Line from the bid costs related to the
Cedar Park Connection Facilities, the LCRA Connection Facilities, and New Hope
Road Reconstruction;
(ii) The Bid Documents shall require the Project Contractor to
categorize all costs included within each pay request related to the New Hope Water
Line according to the individual segment of the New Hope Water Line to which the
costs relate.
7
Interlocal Agreement Regarding
Construction of Regional Water Line
(iii) All Parties shall be named as additional insureds on the
contractor's insurance policies;
(iv) All Parties shall be named as additional beneficiaries under the
contractor's performance and payment bonds. In the event that a surety will not agree
to this condition, then the Parties acknowledge that Cedar Park may secure performance
and payment bonds under which Cedar Park is the only designated beneficiary;
(v) LCRA and Round Rock shall be named as third party beneficiaries
under the contract for construction of the Project, as it relates to the New Hope Water
Line only; and
(vi) An Unbalanced Bid is cause for rejection of any bid.
(b) The Parties hereby agree to the form of the Bid Documents previously furnished
to the Parties pursuant to the Design Agreement and authorize Cedar Park to proceed with the
advertisement and solicitation of bids for the Project. Cedar Park shall not modify or amend the
Bid Documents without the prior unanimous approval of the Project Committee.
(c) LCRA and Round Rock agree that neither such Party, nor the Project Committee,
shall have any right of approval with respect to the design and construction of the New Hope
Road Reconstruction, and Cedar Park agrees that neither such Party shall have any duty,
obligation or responsibility with respect the design or construction of the New Hope Road
Reconstruction.
4.03 Bid Award.
(a) All construction contracts for the Project will be competitively bid and awarded
by Cedar Park in the manner provided by State laws and in accordance with this Section.
(b) The bid tabulation and related information for the construction of the Project will
be submitted to the Project Committee for review and consideration. The Project Committee
shall unanimously agree upon and identify each Qualified Bid within 10 working days of receipt
of the bid tabulation and related bidding materials, and shall provide comments regarding the
bids and bidders during such period. In considering whether or not to accept any bid, Cedar Park
shall consider the advice and recommendations of the Project Committee, but the decision as to
the acceptance of any Qualified Bid shall be within the sole discretion of Cedar Park.
(c) Cedar Park agrees that it shall not award a contract for construction of the Project
to any contractor that does not submit a Qualified Bid unless all members of the Project
Committee unanimously agree thereto within 10 calendar days after receipt of written notice
from Cedar Park of the identity of proposed contractor and the amount of the contractor's bid as
it relates to the construction of the New Hope Water Line. If any member of the Project
Committee fails to either approve or object in writing to the proposed award within 10 calendar
days of receipt of written notice from Cedar Park, then that member shall be deemed to have
8
Interlocal Agreement Regarding
Construction of Regional Water Line
approved the award of the contract by Cedar Park to the proposed contractor. In the event that
any member of the Project Committee objects to the award of the contract by Cedar Park within
such 10 day period, then this Agreement shall automatically terminate for all purposes, and all
Parties shall be without further obligation to each other.
(d) In the event of termination of this Agreement under this Section or otherwise
under the terms of this Agreement, Cedar Park may proceed to award a contract for construction
of the New Hope Road Reconstruction and any waterline improvements that it identifies in the
exercise of its sole discretion, and neither Round Rock nor LCRA shall interfere therewith, or
have any obligations or duties with respect thereto. Similarly, in the event of such termination,
any two of the Parties may thereafter proceed with construction of joint water system
improvements, and the remaining Party shall not interfere with or impair such joint project, or
have any obligations or duties with respect thereto.
4.04 Construction of New Hope Water Line.
(a) General.
(i) Cedar Park shall be responsible for constructing, or causing to be
constructed, the New Hope Water Line, and acquiring all related easements, equipment,
materials and supplies. In connection with the construction of the New Hope Water
Line, Cedar Park agrees to use good faith and reasonable efforts to ensure that the
Project Contractor completes construction of the New Hope Water Line in accordance
with the plans and specifications and other requirements set forth in the Bid Documents.
(ii) Cedar Park must issue a notice to proceed to the Project Contractor
on or before June 1, 2006 or any date thereafter agreed upon in writing by all Parties, or
this Agreement shall terminate for all purposes.
(b) Other Improvements.
(i) Cedar Park will be responsible for payment of any and all costs
and expenses associated with the New Hope Road Reconstruction and the Cedar Park
Connection Facilities, and any additional costs or expenses arising out of such
construction.
(ii) LCRA will be responsible for payment of any and all costs and
expenses associated with the LCRA Connection Facilities and any additional costs or
expenses arising out of such construction.
(c) Inspection.
(i) Cedar Park shall retain a full-time construction inspector to inspect
construction of the New Hope Water Line. Cedar Park will notify the Project
Committee of any construction defects coming to its attention as soon as practicable and
9
Interlocal Agreement Regarding
Construction of Regional Water Line
in no event later than five calendar days (excluding city holidays) after obtaining
knowledge of the defect.
(ii) In the event that Cedar Park retains an inspector for the New Hope
Road Reconstruction, then it shall pay all costs and expenses associated therewith, and
shall not charge Round Rock or LCRA any portion of such road construction inspection
costs or expenses.
(iii) Each Party shall have a reasonable right to access and inspect the
New Hope Water Line as construction progresses, and no Party shall interfere with such
access or inspection by any other Party or its designated representative(s).
(d) Change Orders.
(i) During construction, any change orders related to the New Hope
Water Line or impacting the Water Line Costs will be subject to review and approval by
the Project Committee. The Project Committee will review any change orders and either
approve the change order or provide written comments specifically identifying the
changes required within 10 working days of submittal. If the Project Committee fails to
either approve the submittal or provide written comments specifically identifying the
required changes within 10 working days, the change order in question will be deemed
approved.
(ii) During construction, any change orders related to the Cedar Park
Connection Facilities or impacting the costs thereof will be made in Cedar Park's sole
discretion.
(iii) During construction, any change orders related to the LCRA
Connection Facilities or impacting the costs thereof will be made in LCRA's sole
discretion. Cedar Park agrees to provide prompt notice to LCRA of any such matters,
and to process such change orders in accordance with the determination(s) of LCRA.
(e) Insurance. Cedar Park shall require that all workers involved with the
installation and construction of the New Hope Water Line are covered by workers' compensation
insurance as required by the laws of the State of Texas. Cedar Park shall also require that the
contractors procure and maintain comprehensive general liability insurance insuring against the
risk of bodily injury, property damage, and personal injury liability occurring from, or arising out
of, construction of the New Hope Water Line, with such insurance in the amount of a combined
single limit of liability of at least $1,000,000 and a general aggregate limit of at least $5,000,000.
Such insurance coverage shall be maintained in force at least until the completion, inspection and
acceptance of the New Hope Water Line by Cedar Park. LCRA and Round Rock shall be named
as additional insureds on all such insurance coverages.
4.05 Payment of Water Line Costs.
10
Interlocal Agreement Regarding
Construction of Regional Water Line
(a) All construction contracts and other agreements relating to the construction of the
Project will contain provisions to the effect that the Project Contractor will look solely to Cedar
Park for payment of all sums coming due thereunder.
(b) Each Party shall pay for a portion of the following costs relating to the
construction of the New Hope Water Line (collectively, the "Water Line Costs") in accordance
with the following terms and methodology:
(i) All payments to be made to the Project Contractor for construction
of the New Hope Water Line, which costs shall be shared by the Parties according to
the Cost Allocation Percentages set forth in Exhibit "A" attached hereto;
(ii) All costs to be paid to the Project Contractor for any change orders
relating to the New Hope Water Line that are approved by the Project Committee in
accordance with this Agreement, which costs shall be shared by the Parties according to
the Cost Allocation Percentages set forth in Exhibit "A" attached hereto;
(iii) All payments made by Cedar Park for inspection of construction of
the New Hope Water Line. The total costs of the water line inspection to be shared by
the Parties shall equal the actual costs of inspection charged by the inspector(s) to Cedar
Park, and shall not exceed $110,000. The costs of inspection shall be shared by the
Parties according to the Liability Allocation Percentages set forth on Exhibit "C"
attached hereto (as adjusted by the Project Committee based upon the bid submitted by
the Project Contractor);
(iv) Construction administration costs related to the New Hope Water
Line in an amount equal to the actual fees paid by Cedar Park for such purposes;
provided, however, that not more than $175,000.00 in construction administration costs
may qualify as Water Line Costs. The construction administration costs shall be shared
by the Parties according to the Liability Allocation Percentages set forth on Exhibit
"C" attached hereto (as adjusted by the Project Committee based upon the bid
submitted by the Project Contract);
(v) Project management costs to Cedar Park for management of the
construction of the New Hope Water Line in a lump sum amount equal to $175,000.00.
The Project management costs shall be shared by each of the Parties according to the
lump sum payments identified for such costs on Exhibit "F" attached hereto (which
payments will not be adjusted by the Project Committee);
(vi) Utility relocation costs that are directly related to and necessitated
by construction of the New Hope Water Line (as opposed to the New Hope Road
Reconstruction). The utility relocation costs shall be shared by the Parties according to
the Cost Allocation Percentages set forth in Exhibit "A" attached hereto according to
the segment of the New Hope Water Line that necessitates such relocation; and
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Interlocal Agreement Regarding
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(vii) Any other costs related to the New Hope Water Line that are to be
shared by the Parties under the terms of this Agreement, which costs shall be shared by
the Parties according to the Cost Allocation Percentages set forth in Exhibit "A"
attached hereto.
(c) Neither LCRA nor Round Rock will be responsible for payment of any costs
related to the New Hope Road Reconstruction or the Cedar Park Connection Facilities. Cedar
Park agrees that it shall not charge, or seek payment or reimbursement from, LCRA or Round
Rock for any costs or expenses related to the New Hope Road Reconstruction or the Cedar Park
Connection Facilities. Neither Cedar Park nor Round Rock will be responsible for payment of
any costs related to the LCRA Connection Facilities.
(d) Cedar Park shall ensure that each invoice for payment from the Project Contractor
and other Project consultants shall segregate costs and services related to the New Hope Water
Line from costs and services related to the New Hope Road Reconstruction, the Cedar Park
Connection Facilities, and the LCRA Connection Facilities. Cedar Park shall also ensure that
each invoice for payment from the Project Contractor and other Project consultants segregates
costs and services related to the New Hope Water Line according to pipeline segment for proper
allocation of costs between the Parties according to the Cost Allocation Percentages.
(e) Upon Cedar Park's approval of each invoice for Water Line Costs, Cedar Park
will transmit a copy of the invoice to the Project Committee. All Project Contractor pay requests
related to the New Hope Water Line shall include the engineer's approval and shall specify the
percentage of construction of the New Hope Water Line that has been completed. The members
of the Project Committee shall have 10 calendar days to furnish comments or objections
regarding the proposed invoice(s) for payment. Failure to timely dispute or object to the invoice
shall be deemed approval by the Project Committee. Thereafter, Cedar Park will promptly pay
each invoice for Water Line Costs as they become due from monies within the Construction
Fund.
(f) Costs and expenses related to the New Hope Road Reconstruction, the Cedar Park
Connection Facilities, and the LCRA Connection Facilities shall not qualify as Water Line Costs
to be shared by the Parties. Cedar Park shall pay the Project Contractor directly for all costs
related to the New Hope Road Reconstruction and the Cedar Park Connection Facilities. With
respect to costs and expenses related to the LCRA Connection Facilities, Cedar Park shall
present invoices directly to LCRA for payment, and LCRA shall provide payment of the
invoiced amount to Cedar Park within twenty days of receipt of the invoice.
(g) In the event that any member of the Project Committee disputes an invoice for
payment that would qualify as Water Line Costs, then the Parties agree that the payment and
dispute shall be addressed as follows:
(i) If the dispute relates to the performance of work or services by a
Project Contractor or consultant, or a contractor's or consultant's entitlement to
payment for work or services, then Cedar Park shall exercise all rights to which it is
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Interlocal Agreement Regarding
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entitled under the construction or consulting contract to resolve the dispute, require
correction of the defective work, and otherwise address the concern of the disputing
Party. The Parties acknowledge and agree that Cedar Park may pay an invoice
notwithstanding such dispute, but the disputing Party or Parties shall have the right to
seek a determination regarding the matter through the dispute resolution process set
forth in this Agreement, and the Parties shall be bound by and act in accordance with
such determination.
(ii) In the event that any Party disputes an invoice for reasons not
related to the performance of work or services or a contractor's or consultant's
entitlement to payment, including by way of example whether services or costs included
on the invoice are proper Water Line Costs, then the Project Committee shall endeavor
in good faith to resolve the matter by unanimous agreement. If the Project Committee
cannot unanimously agree to the proper resolution within 10 calendar days, then the
invoice shall be paid as received; provided, however, that any Party may subsequently
seek a determination of the proper allocation of such costs through the dispute
resolution process set forth in this Agreement, and the allocation of costs between the
Parties shall be adjusted in accordance with such determination.
(h) In the event that LCRA disputes an invoice for payment from the Project
Contractor related to the LCRA Connection Facilities, then Cedar Park shall exercise all rights to
which it is entitled under the construction or consulting contract to resolve the dispute, require
correction of the defective work, or otherwise address the concern of LCRA. LCRA
acknowledges and agrees that Cedar Park may pay the invoice notwithstanding such dispute, but
LCRA shall have the right to seek a determination regarding the matter through the dispute
resolution process set forth in this Agreement, and the Parties shall be bound by and act in
accordance with such determination.
4.06 Construction Fund.
(a) The Parties shall contribute monies to the Construction Fund in accordance with
the following provisions:
(i) In addition to the initial contributions to be made by the Parties to
the Construction Fund as set forth in subsection (ii) below, LCRA agrees that it shall
simultaneously provide payment to the Construction Fund in an amount equal to
$166,667 as a capital contribution to the Water Line Costs (the "LCRA Initial Capital
Contribution"). The Parties mutually acknowledge and agree that the LCRA Initial
Capital Contribution shall be applied equally against the pro rata share of the Water
Line Costs for which Round Rock and Cedar Park (but not LCRA) would otherwise be
responsible for payment under this Agreement. In other words, Cedar Park's and
Round Rock's pro rata shares of the Water Line Costs shall each be reduced by
$83,333.50, as reflected in Exhibit "F". The estimated Construction Payments of
Cedar Park and Round Rock, as set forth below, each incorporate a credit for the LCRA
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Interlocal Agreement Regarding
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Initial Capital Contribution. Notwithstanding the foregoing, in the event that all of the
Parties do not enter into a contract for construction of the Regional Project on or before
the date that the construction of the New Hope Water Line is completed and accepted
by Cedar Park, then Round Rock shall provide payment to LCRA in the amount of
$83,333.50 within thirty (30) days of receipt of a written request for such payment.
(ii) Within ten calendar days of execution of a contract for
construction of the Project by Cedar Park or April 20, 2006, whichever is later, each
Party shall deposit into the Construction Fund a sum ("the Construction Payment"),
which represents twenty five percent (25%) of each Party's share of the estimated
Water Line Costs (after accounting for the Initial LCRA Capital Contribution). Each
Party's estimated Construction Payment, based on the estimated Water Line Costs set
forth in Exhibit "F" attached hereto, is set forth below; provided, however, the Parties'
actual Construction Payments shall be determined by the Project Committee within ten
days after award of a contract by Cedar Park to the Project Contractor, based on the
actual bid costs received from the Project Contractor:
1) Round Rock- $1,244,085.40;
2) LCRA- $1,250,505.75; and
3) Cedar Park- $10,315.60.
(iii) At such time as the balance in the Construction Fund is
substantially depleted, as determined in Cedar Park's reasonable discretion, Cedar Park
shall provide written notice (by email or otherwise) thereof to the other Parties, each of
which shall have thirty (30) calendar days to deposit into the Construction Fund an
additional Construction Payment, in the same amount as originally deposited. Each
notice by Cedar Park shall be accompanied by a written accounting report that identifies
in reasonable detail all prior expenditures from the Construction Fund.
(iv) The foregoing process shall continue until such time as the Water
Line Costs have been paid in full. In the event that the Water Line Costs exceed the
original estimate due to change orders or other reasons, then each Party shall thereafter
deposit within the Construction Fund a sum equal to the product determined by
multiplying each Party's Cost Allocation Percentage for the facility to be constructed by
the cost of the facility.
(b) In the event that there are remaining funds within the Construction Fund upon
final completion and acceptance of the New Hope Water Line, then Cedar Park shall promptly
divide and remit within 30 calendar days such funds to the Parties on a pro rata basis according
to the percentage of all Water Line Costs previously paid by each of the Parties, or in the event
the remaining funds are attributable to one or more specific facilities, the remaining funds shall
be remitted to the Parties according to each of the Party's Cost Allocation Percentage for the
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Interlocal Agreement Regarding
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facility or facilities. Payment shall be accompanied by a written accounting describing the basis
for calculation of payment to each Party.
(c) All interest that accumulates within the Construction Fund shall remain within
such fund for payment of Water Line Costs.
4.07 Acceptance.
(a) Upon completion of construction of the New Hope Water Line, Cedar Park shall
obtain the approval of the Project Committee prior to acceptance and final payment of retainage
to the Project Contractor.
(b) Within 30 days after completion of construction and prior to final payment to the
engineers for the New Hope Water Line, Cedar Park will cause the Project engineers to provide
to each Party a concurrence letter from the Project engineers certifying that the construction of
the New Hope Water Line has been completed in accordance with the approved plans,
specifications and change orders, that the facilities have been tested and approved for use in
accordance with the approved contract documents, and that such facilities are properly located
within easements or public right-of-way, as specified in the Project plans.
(c) Within 60 days after substantial completion of construction of the New Hope
Water Line, Cedar Park will cause the Project engineers to provide to each Party a copy of the
final "record" drawings of the completed facilities in an electronic format requested by such
Party. Each Party shall be responsible for payment of any costs associated with obtaining such
copies.
4.08 Warranties. Cedar Park agrees to cause the Project Contractor to repair all
defects in materials, equipment or workmanship appearing within one year from the date of
acceptance of the New Hope Water Line. Upon receipt of written notice from any of the Parties
of the discovery of any defects during this period, Cedar Park shall promptly cause the Project
Contractor to remedy the defects and repair or replace any property damaged as a result thereof.
4.09 Dispute or Litigation. In the event of any dispute between the Project Contractor
and Cedar Park relating to the Project, or in the event of any claim by or against any third person
arising out of or relating to construction of the Project, the Parties agree as follows:
(i) Cedar Park will provide written notice of the details of such
dispute or litigation to the other Parties as soon as reasonably practicable, and shall
continue to provide timely status reports to the other Parties as such dispute or litigation
progresses. The Parties agree that the foregoing shall not be construed to require Cedar
Park to notify the other Parties of claims or notices from subcontractors or others that
would not impact the Water Line Costs;
(ii) Cedar Park will not initiate litigation against the Project Contractor
for any matter that pertains to the New Hope Water Line or that may impact the Water
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Interlocal Agreement Regarding
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Line Costs without first seeking the written consent of the other Parties. If the other
Parties withhold their consent and do not participate in the litigation or dispute, then
Cedar Park shall be entitled to any award or settlement that results from such litigation
or dispute;
(iii) Any Party may seek to join any litigation or dispute resolution
process related to the New Hope Water Line, and no other Party shall interfere with
such intervention or participation. The intervening Party shall pay its costs and
expenses, and no other Party will be responsible for payment of any such costs and
expenses; and
(iv) Cedar Park and any intervening Parties shall use their respective
reasonable efforts to resolve the dispute or litigation in a manner that mutually benefits
all of the Parties to the litigation equally and is mutually beneficial to the common
interests of the Parties participating in the litigation (and to all Parties who seek to
intervene without success);
(v) In the event that any Parties other than Cedar Park participate in
any litigation or dispute resolution process, then each such additional Party shall be
responsible for its respective legal costs and fees. All Parties agree that they will share
the costs and expenses incurred by Cedar Park associated with such litigation, along
with the costs of any adverse judgments or settlements, as Water Line Costs according
to each Party's Liability Allocation Percentage (as adjusted); provided, however, that:
(i) any costs or expenses that arise out of the gross negligence or willful misconduct of a
Party shall be paid only by that Party, and (ii) if the litigation or proceeding relates
solely to one segment of the New Hope Water Line, then each Party shall provide
payment according to their Cost Allocation Percentage for that segment of waterline;
(vi) Cedar Park will not agree to any resolution of the dispute that
would increase the Water Line Costs without the written consent of all Parties;
(vii) Cedar Park will not agree to any compromise or resolution that
would decrease the costs of the New Hope Road Reconstruction relative to the New
Hope Water Line without the written consent of all Parties;
(viii) In the event the dispute or litigation relates solely to the New Hope
Road Reconstruction, neither LCRA nor Round Rock shall have any obligation to
provide payment of any legal or other costs or expenses incurred by Cedar Park in
connection therewith, and to the maximum extent provided by the laws of the State of
Texas, CEDAR PARK SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS
LCRA AND ROUND ROCK AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, DEBTS, SUITS, CAUSES OF ACTION, LOSSES, DAMAGES,
JUDGMENTS, FINES, PENALTIES, LIABILITIES, AND COSTS, INCLUDING
REASONABLE ATTORNEY FEES AND DEFENSE COSTS INCURRED BY
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Interlocal Agreement Regarding
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ROUND ROCK OR LCRA ARISING OUT OF OR RELATING TO THE NEW HOPE
ROAD RECONSTRUCTION DISPUTE;
(ix) In the event that the dispute relates both to the New Hope Road
Reconstruction and the construction of the New Hope Water Line, then the Parties shall
endeavor in good faith to properly allocate costs between the two categories. If the
Parties cannot unanimously agree to the proper allocation within 30 days, then the costs
shall be allocated between the New Hope Water Line and the New Hope Road
Reconstruction according to the Balanced Bid Percentage; provided, however, any Party
may appeal such allocation through the dispute resolution process set forth in this
Agreement; and
(x) Any monetary awards, judgments, or settlements received by
Cedar Park in litigation that relates to the New Hope Water Line shall be deposited into
the Construction Fund and applied against the Water Line Costs. Each Party shall
receive credit in an amount equal to the product obtained by multiplying each Party's
Liability Allocation Percentage (as adjusted) by the amount of the award, judgment or
settlement deposited into the Construction Fund (unless the proceeding relates solely to
one segment of the New Hope Water Line, in which event the monetary awards,
judgments, or settlements shall be credited between the Parties according to their
respective Cost Allocation Percentages for that segment of waterline).
V.
CONVEYANCE
5.01 Conveyance. Within thirty (30) days after receipt of the engineer's concurrence
letter pursuant to Section 4.07(c) above, the Parties will conduct a Conveyance, at which Cedar
Park will convey an undivided ownership interest in the Regional Water Line Interests to each of
the other Parties equal to the Party's Reserved Capacity all facilities constituting the New Hope
Water Line. At such Conveyance, Cedar Park shall also convey an undivided 100% ownership
interest in the LCRA Connection Facilities to LCRA.
5.02 Manner of Transfer.
(a) Transfer by Cedar Park to LCRA and Round Rock of all Real Property that
constitutes the Regional Water Line Interests will be in the form of a deed with special warranty
(with respect to fee property) and an assignment of easement rights (with respect to easements)
and shall be in a form reasonably agreed upon by the Parties to such transfer.
(b) Transfer by Cedar Park to LCRA and Round Rock of all personal property and
Contracts that constitute Regional Water Line Interests or the LCRA Connection Facilities (with
respect to LCRA) will be by Bill of Sale and Assignment in the form attached hereto as Exhibit
"G".
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Interlocal Agreement Regarding
Construction of Regional Water Line
5.03 Costs and Expenses. Each Party will be responsible for all costs and expenses
that it incurs in connection with the Conveyance.
5.04 Risks Pending Conveyance. Cedar Park agrees that, until Conveyance, it will
maintain, or cause to be maintained, insurance in such amounts as are reasonable and prudent on
the Regional Water Line Interests and LCRA Connection Facilities. If, between the Effective
Date and Conveyance, any part, whether substantial or minor, of the Regional Water Line
Interests are destroyed or rendered useless by fire, flood, wind, or other casualty, Cedar Park will
make repairs and replacements to restore the Regional Water Line Interests and LCRA
Connection Facilities to their prior condition.
VI.
OWNERSHIP AND OPERATION OF TRANSNIISSION LINE
6.01 Ownership Interests.
(a) After Conveyance, each Party shall hold an undivided ownership interest in each
segment of the New Hope Water Line equal to the Party's Cost Allocation Percentage, and each
Party shall own a percentage of capacity in the facilities equal to that Party's Reserved Capacity
in such segment. The Parties mutually acknowledge and agree that such ownership and right of
use may be revised in accordance with any subsequent agreement(s) entered into by the Parties
relating to the Regional Project.
(b) After completion of construction, Cedar Park shall hold an undivided 100%
ownership interest in the Cedar Park Connection Facilities.
(c) After conveyance by Cedar Park, LCRA shall hold an undivided 100% ownership
interest in the LCRA Connection Facilities
6.02 Right of Use.
(a) It is the mutual intent of the Parties that the operation and use of the New Hope
Water Line will be addressed in one or more subsequent agreements entered into by the Parties
relating to the ownership, use and operation of the Regional Project. In the event that the Parties
enter into such agreement(s), then the terms of this Article VI shall be superceded and replaced
for all purposes by the terms of such agreement(s).
(b) In the event that all of the Parties do not enter into the necessary agreement(s) for
construction and operation of the Regional Project within 90 days after completion of
construction and acceptance by Cedar Park of the New Hope Water Line, then each Party
thereafter shall have a permanent and irrevocable right to use and transport Water or raw water
through the New Hope Water Line subject to the following terms and conditions:
(i) If, at any time after the expiration of 90 days after completion of
construction and acceptance by Cedar Park of the New Hope Water Line, any Party
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Interlocal Agreement Regarding
Construction of Regional Water Line
desires to commence utilization of the New Hope Water Line for the transmission of
raw water, it shall provide written notice thereof (the "Raw Water Notice") to the
remaining two Parties. Each of the remaining two Parties shall have a sixty (60) day
period from receipt of the Raw Water Notice (the "Notice Date") to specify whether it
intends to use the New Hope Water Line for the transmission of Water. In the event
that either of such Parties specifies that it desires to utilize the New Hope Water Line
for transmission of Water, then such Party must purchase the other Parties' respective
interests in the New Hope Water Line (and Cedar Park Connection Facilities and LCRA
Connection Facilities, as applicable) by providing payment in the full amount to each
such Party of all Water Line Costs previously paid by such Party (and costs related to
the Cedar Park Connection Facilities and LCRA Connection Facilities, as applicable).
Payment in full must be received by the other Parties within 180 days of the Notice
Date. If both Parties that receive the Raw Water Notice specify within the 60 day
period that they desire to utilize the New Hope Water Line for transmission of Water,
then each such Party shall provide payment to the Party that provided the Raw Water
Notice in the full amount of all Water Line Costs (and costs for the Cedar Park
Connection Facilities and LCRA Connection Facilities, as applicable) previously paid
by such Party (to be divided by the purchasing Parties on a pro rata basis according to
their Reserved Capacity in the New Hope Water Line facilities being purchased).
Payment in full must be made by the purchasing Parties within 180 days of the Notice
Date. If neither Party that receives the Raw Water Notice specifies within the 60 day
period that it desires to utilize the New Hope Water Line for transmission of Water,
then the New Hope Water Line shall thereafter be used only for raw water transmission
purposes, except as otherwise agreed upon by all Parties. Upon receipt of payment by
any Party in accordance with the terms and conditions of this Section 6.02(b)(i), then
such Party or Parties shall immediately convey and assign its rights, title and interest in
the New Hope Water Line to the purchasing Party or Parties utilizing the form of Bill of
Sale set forth in Exhibit "G" attached hereto. In the event that two of the Parties
provide payment and acquire the third Party's rights, title and interest in the New Hope
Water Line in accordance with this subsection, then the rights of purchasing Parties to
use the New Hope Water Line will be subject to the terms and conditions hereafter set
forth in this Section 6.02(b), until modified or superceded by written agreement of such
Parties; provided, however, that the Reserved Capacities of such Purchasing Parties
shall increase on a pro rata basis according to the payment made by each such Party to
the third Party.
(ii) The total quantity of Water or raw water delivered through the
New Hope Water Line shall never exceed the combined Reserved Capacity of all of the
Parties.
(iii) Each Party shall utilize its Reserved Capacity and interest in the
New Hope Water Line in accordance with good business and engineering practices and
in accordance with all local, state or federal legal requirements applicable thereto.
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Interlocal Agreement Regarding
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(iv) Responsibility for the transportation and delivery of all Water or
raw water shall remain with each Party to the point of entry into the New Hope Water
Line, and upon exiting the facilities, shall again pass to that Party;
(v) No Party may transport Water or raw water through the pipeline in
a quantity that exceeds its Reserved Capacity;
(vi) No Party may use another Party's Reserved Capacity without that
Party's written consent;
(vii) No Party or other person or entity may transport Water through, or
otherwise use, the New Hope Water Line in a manner that materially interferes with or
impairs another Party's right to use its Reserved Capacity in the facilities. In the event
that a Party believes the proposed or actual operation or use of the facilities by another
Party potentially or does materially interfere with or impair the rights of such
complaining Party to use its Reserved Capacity, the complaining Party may initiate the
formal dispute resolution process set forth in this Agreement;
(viii) Prior to making any tap or connection into the New Hope Water
Line, each Party shall provide written notice to the other Parties and provide such
Parties an opportunity to participate in such tap or connection. The notice shall specify
the proposed quantity of Water or raw water to be delivered through the facilities, the
point of entry and point of exit, a description of the connecting facilities, and other
relevant information. The Parties shall engage in good faith negotiations for a period
not less than 60 days regarding the joint participation in such tap or connection. If the
negotiating Parties have not reached an agreement within 60 days regarding the joint
participation in such tap or connection, then any of the negotiating Parties may initiate
the dispute resolution process set forth in this Agreement for a determination of the
terms and conditions pursuant to which the negotiating Parties shall jointly participate
in the tap or connection. No Party may proceed with the tap or connection until the
dispute resolution process is completed; and
(ix) The rate and quantity of Water or raw water entering and exiting
the New Hope Water Line shall be metered unless otherwise agreed upon by all Parties.
The cost and expense of the connection and meter shall be borne solely by the Party
making such tap or connection, or as otherwise agreed by the Parties during
negotiations. All Parties shall have access to such metering equipment at all reasonable
times for inspection and examination. The reading, calibration and adjustment of
meters shall be done by the Party that installed the meter(s) after two (2) working days
notice to the other Parties and in the presence of a representative of any other Party if
requested by that Party. The Party shall calibrate the meter(s) at least once in each year
of operation. All readings of meters will be entered upon proper books of record in
computer records maintained by the metering Party. Upon written request, any other
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Interlocal Agreement Regarding
Construction of Regional Water Line
Party may have access to said record books or computer printouts during reasonable
business hours.
(c) In the event that all of the Parties do not enter into the necessary agreement(s) for
construction and operation of the Regional Project within 90 days after completion of
construction and acceptance by Cedar Park of the New Hope Water Line, then Cedar Park
thereafter shall have a permanent and irrevocable right to use and transport Water or raw water
through the Cedar Park Connection Facilities, and LCRA shall have a permanent and irrevocable
right to use and transport Water or raw water through the LCRA Connection Facilities; provided,
however, that neither such Party may do so in a manner that interferes with the use of the New
Hope Water Line in accordance with the terms of the Section 6.02(b) above, and each Party's
ownership interest and right to use such connection facilities shall be subject to purchase in
accordance with Section 6.02(b)(i) above.
6.03 Transfer of Reserved Capacity.
(a) Any Party may transfer any portion of its ownership interest and Reserved
Capacity in the New Hope Water Line to another Party in exchange for such consideration as the
parties to such transfer shall deem appropriate. The Party making any such transfer shall provide
written notice to the other Parties, signed by the Parties accomplishing the transfer, specifying
the amount of the transferred ownership interest and Reserved Capacity, and providing that the
Parties ratify and confirm their obligations under this Agreement with respect to the transferred
capacity. No such transfer shall be effective until and unless such notice is provided. A transfer
of Reserved Capacity shall not change any payment or other obligation of the Parties, unless
agreed to by all Parties.
(b) LCRA may transfer all or a portion of its ownership interest and Reserved
Capacity in the New Hope Water Line to Leander in accordance with the same terms and
procedures set forth above. Save and except the transfer and assignment to Leander, no Party
may transfer or assign any portion of its ownership interest and Reserved Capacity in the New
Hope Water Line to any person or entity that is not a Party to this Agreement without obtaining
the prior written consent of both of the other Parties.
6.04 Operation and Maintenance Expenses.
(a) In the event that all or any portion of the New Hope Water Line needs to be
maintained, repaired or replaced for any reason prior to the commencement of operation of the
facilities by any Party, then the Project Committee shall unanimously determine in good faith
and within thirty (30) days which Party is most qualified to undertake and complete the
maintenance or repair in a cost effective and timely fashion, along with the estimated cost
thereof. Within thirty days of such determination, each of the Parties shall provide payment to
the repairing Party in an amount equal to the Party's share of the estimated Operation and
Maintenance Expense or Capital Expense (as applicable) in accordance with Sections 6.04(d)
and (e) below. In the event that the actual Operation and Maintenance Expenses or Capital
Expenses exceed the estimate of the Project Committee, then each Party shall contribute payment
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Interlocal Agreement Regarding
Construction of Regional Water Line
of the remaining costs to the repairing Party within thirty days of receipt of an invoice from that
Party. Payment of the additional costs shall be made by each Party in an amount equal to the
product of the Party's Cost Allocation Percentage for the facility being repaired, replaced or
maintained multiplied by the additional Operation and Maintenance Expenses (or Capital
Expenses, as applicable). Any excess payment by the Parties shall be refunded by the repairing
Party to each of the other Parties in amounts equal to the amount of the excess funds multiplied
by each such Party's Cost Allocation Percentage in such facility. In the event the Project
Committee cannot unanimously determine within the thirty day period which Party should
undertake and complete the maintenance and repair, then any Party may pursue the dispute
resolution process for a determination as to the manner in which the repair, replacement or
maintenance shall occur (unless the matter becomes an emergency, in which event any Party
may proceed with the necessary remedial action, as described below).
(b) After commencement of operation of the New Hope Water Line, any Party or
Parties that proposes to undertake the non -emergency maintenance, repair or replacement of all
or any portion of the New Hope Water Line shall provide prior written notice to the Project
Committee specifying: (i) the nature and cause of the problem, if known; (ii) the nature of the
corrective action proposed to be undertaken; (iii) the estimated cost of the corrective action; (iv)
the proposed date of commencement of the corrective action; and (v) the duration of the
corrective action and its potential impact on the use of the facilities by the other Party or Parties.
The Project Committee shall have 20 calendar days to review and comment upon the proposed
corrective action and determine each Party's estimated costs thereof in accordance with the
methodology set forth in Sections 6.04(d) and (e) below (as applicable). The repairing Party
shall perform the repair only in accordance with the terms and requirements unanimously agreed
upon by the Project Committee. If the Project Committee is unable to unanimously agree upon
the terms of the proposed repair during this time period or each Party's estimated costs thereof,
then any Party may pursue the dispute resolution process for a determination as to the manner in
which the repair shall occur and costs shared by the Parties (unless the matter becomes an
emergency, in which event any Party may proceed with the necessary remedial action, as
described below).
(c) In the event of an emergency, to be determined within the reasonable discretion of
any Party, any Party may immediately undertake the repair, replacement or maintenance of the
New Hope Water Line, but shall provide written notice to the other Parties as soon as practicable
specifying the nature of the emergency and the repair. The reasonable costs of such emergency
remedial action shall be allocated in accordance with Sections 6.04(d) and (e) below, as
applicable, and shall be paid to the repairing Party within thirty (30) days of receipt of an invoice
for payment of costs. Any Party may dispute the necessity of the remedial action, or allocation
of costs, in accordance with the dispute resolution process set forth in this Agreement.
(d) Operation and Maintenance Expenses shall be paid by the Parties as follows:
(i) Prior to the commencement of operation of the New Hope Water
Line, Operation and Maintenance Expenses shall be paid by the Parties according to
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Interlocal Agreement Regarding
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each Party's ownership interest and Reserved Capacity in the facility being repaired or
maintained; and
(ii) After commencement of operation of the New Hope Water Line,
Operation and Maintenance Expenses shall be paid by the Parties according to the
quantity of Water or raw water (as applicable) transported by each Party through the
segment being repaired or maintained during the twelve month period prior to
identification of the necessity for the repair or maintenance event.
(e) Capital Expenses shall be paid by the Parties according to each Party's ownership
interest and Reserved Capacity in the facility being repaired, rehabilitated or replaced.
6.05 Operation and Maintenance of Connection Facilities. Cedar Park shall be
solely responsible for the operation, maintenance, repair and replacement of the Cedar Park
Connection Facilities. Upon receipt of ownership of the LCRA Connection Facilities from
Cedar Park, LCRA thereafter shall be solely responsible for the ownership, operation,
maintenance, repair and replacement of the LCRA Connection Facilities.
6.06 Right of Way.
(a) Upon completion of construction of the New Hope Road Reconstruction, Cedar
Park agrees that it shall not take any action with respect to the right-of-way in which any portion
of the New Hope Water Line is located that would require relocation of the facilities without the
written consent of all the Parties, unless such relocation is accomplished at Cedar Park's sole
cost and expense, and accomplished in a manner that does not materially interfere with the
transportation of Water or raw water by the other Parties.
(b) Cedar Park agrees that it shall not take any action with respect to its public right-
of-way that would prevent, interfere with, or hinder any other Party from accessing the New
Hope Water Line for repairs, maintenance, operation, and other reasonable purposes, and each
other Party is hereby authorized to perform or engage in such actions in said right-of-way.
VII.
NEGOTIATION AND MEDIATION OF DISPUTES
7.01 Agreement Regarding Remedies. The Parties agree that their respective
obligations under this Agreement are unique and the failure by any Party to perform its
obligations under this Agreement would not be capable of being appropriately remedied by
award of damages to any other affected Party to this Agreement and in any event, such damages
would be difficult, if not impossible, to determine because of the unique nature of the Parties'
obligations to each other hereunder. Further, the Parties agree that the remedy of termination of
this Agreement by any Party is inappropriate and not in the public interest. Therefore, the Parties
agree that they shall be entitled, and limited, to the remedies of specific performance, mandamus
and injunction in the event of any breach of any obligation by any Party under this Agreement.
23
Interlocal Agreement Regarding
Construction of Regional Water Line
The Parties hereby waive any requirement that they be required to provide any bond or other
surety in order to obtain any of the agreed upon remedies.
7.02 Agreement to Negotiate First to Resolve Issues. The Parties agree to attempt
first to resolve disputes concerning this Agreement amicably by promptly entering into
negotiations in good faith. The Parties agree that they will not refer any dispute to another
dispute resolution procedure including mediation or litigation until they have first made
reasonable and good faith efforts to settle their differences by joint negotiations conducted in a
timely manner.
7.03 Agreement to Mediate. If any dispute cannot be resolved through good faith
negotiation, then the Parties shall endeavor to resolve the dispute by mediation as provided
herein.
7.04 Presentation of Written Claim Regarding Disputes Not Resolved by
Negotiation. In the event that a dispute is not resolved as a result of such negotiations, either
party may at any time give formal written notice to the other of a "claim." A "claim" as used
herein means a demand or assertion by one of the Parties (the "claimant") seeking, as a matter or
right, adjustment or interpretation of contract terms, the payment of money, an extension of time
for performance or other relief with respect to the terms of this Agreement or any other dispute
or matter in question among the Parties arising out of or related to this Agreement. Such notice
shall be in writing. After such notice is given, the dispute resolution procedure provided for
below shall immediately enter into effect.
7.05 Performance During Mediation. The claimant shall continue with performance
under this Agreement pending mediation of the dispute.
7.06 Appointment of Mediator. Promptly following the making of a written claim by
any Party, the Parties will consult with one another to agree on the appointment of a mediator
acceptable to all Parties. The mediator shall have experience in matters of the kind giving rise to
the claim. If within five (5) business days the Parties are unable to agree on the appointment of a
mediator, then any Party may request the appointment of a mediator by the Center for Public
Policy Dispute Resolution at the University of Texas at Austin School of Law. The Parties shall
endeavor to secure such appointment from the Center for Public Policy Dispute Resolution
within ten (10) business days after the request for same is made. The Parties agree to utilize the
mediator appointed by the Center unless they ultimately reach agreement on an alternative
selection and give notice to the Center that another selection has been made by agreement.
7.07 Rules for Mediation. The Parties agree to the following stipulations concerning
the conduct of the mediation:
(a) The mediator shall be impartial among the Parties and shall have no conflict of
interest.
24
Interlocal Agreement Regarding
Construction of Regional Water Line
(b) The mediator shall not have any past, present or anticipated financial interest in
the Agreement except for the payment for services as mediator nor shall the mediator have been
previously employed or acted as a consultant, attorney, employee, engineer, architect, contractor
or subcontractor of any Party nor have any present or anticipated future engagement of the kind
described. Before the engagement of the mediator is finalized, the mediator shall provide to the
Parties a disclosure statement containing a resume of experience, a description of past, present or
anticipated future relationships to the Parties, their engineers, contractors, subcontractors,
attorneys, architects, or consultants.
(c) The mediation shall be held at a time and location mutually agreeable to the
Parties and the mediator provided, however, that the mediation shall commence no later than
fifteen (15) business days following the confirmation of appointment.
(d) At least five (5) business days prior to the mediation, the claimant shall submit to
the Parties and the mediator a statement of the claimant's position, the issues that need to be
resolved and a summary of the arguments supporting the claimant's position. At least two (2)
business days prior to the mediation, the responding Parties shall submit their written response to
the claimant's statement and provide a summary of their arguments in response.
(e) If the Parties agree that independent expert or technical advice would be helpful
in facilitating a negotiated resolution of the dispute, the mediator may make arrangements to
obtain such advice, and may, with the agreement of the Parties, make arrangements for an
independent expert to render a non-binding advisory opinion with respect to any technical
matters in dispute after hearing the contentions of the Parties with respect thereto. The expenses
of obtaining such independent advice or advisory opinion shall be borne equally by the Parties.
(f) No Party shall engage in any private interview, discussion or argument with the
mediator concerning the subject matter of the mediation.
(g) The fees of the mediator and any other costs of administering the mediation shall
be borne equally by the Parties unless otherwise agreed among them in writing.
(h) The mediator may promote settlement in any manner the mediator believes
appropriate at one or several mediation sessions as agreed to by the Parties. The mediation shall
continue only so long as desired by the Parties and with the consent of all of them.
(i) Mediation sessions shall be private unless otherwise required by law. Persons
other than the representatives of the parties may attend mediation sessions only with the
permission of all Parties and the consent of the mediator.
(j) All communications made in the course of the mediation process including any
advice or advisory opinions rendered shall be confidential in accordance with V.T.C.A. Civil
Practice and Remedies Code, Section 154.073.
25
Interlocal Agreement Regarding
Construction of Regional Water Line
7.08 Exception. Notwithstanding the foregoing provisions of Sections 7.02-7.07, the
Parties agree that those provisions shall not be applicable in emergency situations.
VIII.
GENERAL PROVISIONS
8.01 Authority. This Agreement is made in part under the authority conferred in
Chapter 791, Texas Government Code and Section 402.001, Texas Local Government Code.
8.02 Effect on Regional Project Obligations. The Parties mutually acknowledge
and agree that although this Agreement is being entered into in connection with the planning and
the goal of implementing the Regional Project, this Agreement shall in no manner bind or
obligate the Parties to pursue or participate in the Regional Project, or any individual efforts that
may be undertaken in connection therewith. Similarly, in the event the Regional Project is not
successfully implemented or any of the Parties discontinue their joint efforts to pursue the
Project, then this Agreement shall not be impacted thereby, and shall remain in full force and
effect for all purposes. The Parties confirm that further agreements regarding the Regional
Project are contemplated and will not be affected or limited by this Agreement.
8.03 Severability. The provisions of this Agreement are severable and, if any
provision 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 not be affected and this Agreement
will be construed as if the invalid portion had never been contained herein.
8.04 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.
8.05 Payments from Current Revenues. Any payments required to be made by a
Party under this Agreement will be paid from current revenues or other funds lawfully available
to the Party for such purpose.
8.06 Cooperation. The Parties agree to cooperate at all times in good faith to
effectuate the purposes and intent of this Agreement.
8.07 Entire Agreement. This Agreement contains the entire agreement of the Parties
regarding the subject matter hereof and supersedes all prior or contemporaneous understandings
or representations, whether oral or written, regarding the subject matter. The Parties confirm that
further agreements regarding the Regional Project are contemplated and will not be affected or
limited by this Agreement.
8.08 Amendments. Any amendment of this Agreement must be in writing and will be
effective if signed by the authorized representatives of the Parties.
26
Interlocal Agreement Regarding
Construction of Regional Water Line
8.09 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.
8.10 Notices. Any notices given under this Agreement will be effective if (i)
forwarded to a Party by hand -delivery; (ii) transmitted to a Party by confirmed telecopy; or (iii)
deposited with the U.S. Postal Service, postage prepaid, certified, to the address of the Party
indicated below:
CEDAR PARK:
with copy to:
ROUND ROCK:
with copy to:
LCRA:
600 North Bell Blvd.
Cedar Park, Texas 78613
Attn: Sam Roberts
Telephone: (512) 258-4121 x6321
Facsimile: (512) 258-6083
Email: roberts@ci.cedar-park.tx.us
Leonard Smith
P.O. Box 684633
Austin, Texas 78768
Telephone: (512) 474-6707
Facsimile: (512) 474-6706
Email: lsmith@ieonardsmithlaw.com
221 East Main
Round Rock, Texas 78664
Attn: Jim Nuse
Telephone: (512) 218-5410
Facsimile: (512) 218-7097
Email: jnuse@round-rock.tx.us
Steve Sheets
309 E. Main Street
Round Rock, Texas 78664-5264
Telephone: (512) 255-8877
Facsimile: (512) 255-8986
Email: slsheets@sheets-crossfield.com
3701 Lake Austin Blvd.
Austin, Texas 78703
Attn: Scott Ahlstrom
Telephone: (512) 473-3386
Facsimile: (512) 397-6722
Email: scott.ahlstrom@lcra.org
with copy to: Madison Jechow
27
Interlocal Agreement Regarding
Construction of Regional Water Line
3700 Lake Austin Blvd., Ste. H424
Austin, Texas 78703
Telephone: (512) 473-4067
Telecopy: (512) 473-4010
Email: Madison.Jechow@lcra.org
8.11 Exhibits. The following exhibits are attached to this Agreement and incorporated
herein by reference:
Exhibit A -
Exhibit B -
Exhibit C -
Exhibit D -
Exhibit E -
Exhibit F -
Exhibit G -
Cost Allocation Percentages
Cost Estimate
Liability Allocation Percentages
Reserved Capacity
Segment Description
Estimated Water Line Costs
Form Bill of Sale and Assignment
8.12 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.
8.13 Authority. Each Party represents and warrants that it has the full right, power
and authority to execute this Agreement.
[The remainder of this page intentionally left blank.]
28
Interlocal Agreement Regarding
Construction of Regional Water Line
ATTEST:
City Secretary
Interlocal Agreement Regarding
Construction of Regional Water Line
CITY OF ROUND ROCK:
By:
P ► ele Maxwell
itl: Mayor
Date: Uanch. 9, .00(o
29
ATTEST: CITY OF CEDAR PARK:
City Secretary
Interlocal Agreement Regarding
Construction of Regional Water Line
By:
Printed Name: Robe S. Lemon
Title: Mayor
Date: 3/23 ao
30
ATTEST: CITY OF CEDAR PARK:
6717--,-)(173
City Secretary
Interlocal Agreement Regarding
Construction of Regional Water Line
Printed Name: Robert S. Lemon
Title: Mayor
Date:
30
Interlocal Agreement Regarding
Construction of Regional Water Line
LOWER COLORADO RIVER AUTHORITY:
By:
Printed Name: Scott B. Ahlstrom, P.E., PMP
Title: Manager, Water & Wastewater Utility
Services
Date:
31
Ag\i(�, to
7
EXHIBIT "A"
COST ALLOCATION PERCENTAGES
Segment A
Cedar Park: 14.18 %
Round Rock: 38.56 %
LCRA: 47.26 %
Segment B
Cedar Park: 0 %
Round Rock: 51.78 %
LCRA: 48.22 %
EXHIBIT "B"
CONSTRUCTION COST ESTIMATE
Exhibit MB
GEtERAL ITEMS
COST
SEGMENT A
SAD. 35
5799,
S3344193.50
WWI I1Ci P€y 115% 3,
S42A19.ti3
GUN t>OSAt'.....;:.15.1tfi
41S%)
.,tw, . WATER mon- .
AY ITvS$
COST
SEGMENT ASEOW
5799,
x115.37'$
N1 fF
.Z3 ,4 CO
#r18.582.00
41S%)
y (15
,t3
Oft. �A�I-"
it 1,1343
yp bra
.,tw, . WATER mon- .
IkAGt.ITMIS .. . _..._.
..........,
\....
.g Ck
S E F ,:
5799,
513,316 (XV
S 13
.Z3 ,4 CO
#r18.582.00
41S%)
P
WO AO
Oft. �A�I-"
it 1,1343
..,
m3�0r�;g�
.,tw, . WATER mon- .
COST
.'p�/�■ may A ..
5799,
�llix'F f13
.Z3 ,4 CO
I+ Y C15)
SI,03 i7 .40
WAf TOTA
'-,.
it 1,1343
Lockwood, Andrews
& Neawnam
A LEO A 00.1 COoAP i NV
EXIIIBIT "C"
LIABILITY ALLOCATION PERCENTAGES*
CEDAR PARK 1.35%
ROUND ROCK 50.52%
LCRA 48.13%
*The Project Committee shall revise the Liability Allocation Percentages within ten days
after award of a contract by Cedar Park to the Project Contractor based on the actual bid
amount submitted by the Project Contractor. Each Party's Liability Allocation
Percentage shall be equal to that Party's share of the total costs of construction of the
New Hope Waterline.
EXTrilBIT "D"
RESERVED CAPACITY
Segment A
Cedar Park: 15 MGD
Round Rock: 40.8 MGD
LCRA: 50 MGD
Segment B
Cedar Park: 0
Round Rock: 40.8 MGD
LCRA: 38 MGD
EXFIIBIT "E"
SEGMENT DESCRIPTION
SEGMENT k 78' - STA. 1400 STA. 6+10
72' - STA 8+10 10 STA. 5+75
SEG B 72'- STA. 8P7STSTA. 113+10
EXHIIBIT "F"
ESTIMATED WATERLINE COSTS*
Water Line Segment A*
Cedar Park: $85,492.24
Round Rock: $375,758.22
LCRA: $729,340.09
Water Line Segment B*
Cedar Park: $0
Round Rock: $5,905,496.49
LCRA: $5,499,479.35
Cedar Park Project Management
Cedar Park: $0
Round Rock: $89,786.66
LCRA: $85,213.34
*Costs for Segment A and Segment B include waterline construction, construction
administration, and waterline inspection. Costs for Segment A also include LCRA's
Initial Contribution of $166,667 and incorporate an $83,333.50 credit for both Cedar Park
and Round Rock. The Project Committee shall revise each Party's actual share of the
Water Line Costs, except for Cedar Park's project management fees, within ten days after
award of a contract by Cedar Park to the Project Contractor based on the actual bid
amount submitted by the Project Contractor. The lump sum payments to be made by
each of the Parties for Cedar Park's project management costs, as identified on this
exhibit, will not be revised.
EXIIIBIT "G"
FORM BILL OF SALE AND ASSIGNMENT
BILL OF SALE AND ASSIGNMENT
Date:
Grantor:
Grantor's Mailing Address (including county):
Grantee:
Grantee's Mailing Address (including county):
Consideration: Ten Dollars ($10.00) and other good and valuable consideration in hand
paid by Grantee.
Facilities: See Exhibit "A" attached hereto.
Intangible Assets: See Exhibit "B" attached hereto.
Grantor, for the consideration herein expressed, sells, assigns, and transfers to Grantee:
a) the Facilities as described on Exhibit "A"; and,
b) the Intangible Assets described on Exhibit "B."
Reference is hereby made to that certain "Interlocal Agreement Regarding Construction
of Regional Water Line" dated . 2006, between Grantor, Grantee and
("Agreement"). The covenants and representations set forth in the Agreement are
hereby incorporated herein by reference as if such covenants and representations were fully set
out herein.
Grantor agrees to hereafter cooperate with Grantee, take such actions and execute such
other specific documents as may be necessary or appropriate to accomplish the transfers
contemplated in the Agreement and this document.
When the context requires, singular nouns and pronouns include the plural. References
to defined terms shall refer to those terms as defined in the Agreement.
Executed effective
GRANTOR:
By:
Printed Name:
Title:
Date:
GRANTEE:
By:
Printed Name:
Title:
Date: