Contract - Windermere Utility Company - 2/9/2017 AGREEMENT FOR THE TRANSFER OF RETAIL WASTEWATER UTILITY SERVICE
AREA BETWEEN THE CITY OF ROUND ROCK AND WINDERMERE UTILITY
COMPANY
This Agreement Betwee%,City of Round Rock and Windermere Utility Company (this
"Agreement") is entered into this`day of 2017, by and between the City of Round
Rock, a Texas home rule municipality (hereinafter "Itound Rock"), and SWWC Utilities, Inc., a
Delaware corporation d/b/a Windermere Utility Company, an Investor Owned Utility Company
regulated by the Public Utility Commission of Texas (hereinafter"Windermere") with respect to the
boundary lines of the Certificates of Convenience and Necessity (hereinafter "CCN's") held by each
for the provision of wastewater service to users pursuant to the Texas Water Code.
WHEREAS, Round Rock is the holder of wastewater CCN 420421 from the Public Utility
Commission of Texas (hereinafter "PUC"), for the provision of retail wastewater service to certain
areas in and about Williamson and Travis Counties, Texas; and
WHEREAS, Windermere is the holder of wastewater CCN 420542 from the PUC, for the
provision of retail wastewater service to certain areas in and about Travis County, Texas; and
WHEREAS, the boundaries of the Round Rock CCN and the Windermere CCN are adjacent
to one another;
WHEREAS, Windermere wishes to alter the boundaries of its CCN by decertifying and
transferring an area (the "Windermere Transfer Area") contained with the boundaries of the
Windermere CCN to Round Rock, so that such area is removed from the Windermere CCN and
added to the Round Rock CCN; and
WHEREAS, Round Rock wishes to alter the boundaries of its CCN by decertifying and
transferring an area (the "Round Rock Transfer area") contained with the boundaries of the Round
Rock CCN to Windermere, so that such area is removed from the Round Rock CCN and added to
the Windermere CCN; and
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged,Round Rock and Windermere hereby agree as follows:
1.1 Round Rock is the owner and holder of wastewater CCN #20421.
1.2 Windermere is the owner and holder of wastewater CCN#20542.
1.3 The Round Rock Transfer Area is located within the boundaries of CCN 420421 and adjacent
to the boundaries of CCN 420542, such property more fully described in Exhibit "A"
attached hereto.
1.4 The Windermere Transfer Area is located within the boundaries of CCN #20542 and
adjacent to the boundaries of CCN #20421, such property more fully described in Exhibits
'B1"and`132"attached hereto.
Transfer of Windermere CCN Area
2.1 In accordance with Texas Water Code Section 13.248, and subject to the approval by the PUC,
Windermere hereby agrees to the modification of the boundaries of its CCN#20542 to exclude
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the area contained within the Windermere Transfer Area, such area to be transferred from
Windermere's CCN#20542 to the area to be encompassed within the Round Rock CCN#20421.
2.2 In accordance with Texas Water Code Section 13.248, and subject to the approval by the PUC,
Round Rock hereby agrees to the expansion and modification of the boundaries of its CCN
#20421 to include the area contained within the Windermere Transfer Area, such area to be
transferred from Windermere's CCN #20542 to now be encompassed within the Round Rock
CCN.
2.3 Round Rock agrees that, upon approval of the revision to its CCN boundaries by PUC to
include the Windermere Transfer Area within the boundaries of its CCN #20421,
Windermere shall have no further obligation to provide retail wastewater service to the
Windermere Transfer Area, and that Round Rock shall be solely responsible for the provision of
retail wastewater service to the owners and occupants of the Windermere Transfer Area under
such terms and conditions as are allowed under its CCN and any applicable governmental statutes
and regulations.
Transfer of Round Rock CCN Area
3.1 In accordance with Texas Water Code Section 13.248, and subject to the approval by the PUC,
Round Rock hereby agrees to the modification of the boundaries of its CCN#20421 to exclude
the area contained within the Round Rock Transfer Area,such area to be transferred from Round
Rock's CCN#20421 to the area to be encompassed within the Windermere CCN#20542.
3.2 In accordance with Texas Water Code Section 13.248, and subject to the approval by the PUC,
Windermere hereby agrees to the expansion and modification of the boundaries of its CCN
#20542 to include the area contained within the Round Rock Transfer Area, such area to be
transferred from Round Rock's CCN #20421 to now be encompassed within the Windermere
CCN.
3.3 Windermere agrees that, upon approval of the revision to its CCN boundaries by PUC to
include the Round Rock Transfer Area within the boundaries of its CCN#20542. Round
Rock shall have no further obligation to provide retail wastewater service to the Round Rock
Transfer Area, and that Windermere shall be solely responsible for the provision of retail
wastewater service to the owners and occupants of the Round Rock Transfer Area under such
terms and conditions as are allowed under its CCN and any applicable governmental statutes and
regulations.
Compensation
4.1 Windermere and Round Rock agree that no compensation shall be due and owing between Round
Rock and Windermere in conjunction with such transfer, since no real or personal property of
either party is contained within either Transfer Area or is being affected by such transfer.
Facilities
5.1 Neither party owns any wastewater connections or wastewater facilities within their
respective transfer areas.
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Transfer and Amendment of CCNs
6.1 Round Rock and Windermere shall each file appropriate applications with the PUC to formally
transfer the Transfer Areas from Round Rock's CCN to Windermere's CCN and from
Windermere's CCN to Round Rock's CCN (the "CCN Transfers"). Round Rock and
Windermere shall endeavor to obtain PUC approval of the CCN transfers contemplated herein in
an expeditious manner and will support and cooperate with each other and the PUC to accomplish
this goal. The Parties shall file the necessary applications to transfer the CCNs by March 1,2017.
6.2 The Parties shall make all reasonable efforts to file the applications simultaneously with the PUC.
6.3 Each Party shall bear their own costs associated with preparing and filing the CCN applications
and the pursuit of regulatory approvals.
6.4 Round Rock and Windermere agree that, pending PUC approval, Round Rock will have the sole
right to provide retail wastewater service within the Windermere Transfer Area, and Windermere
will have no further obligation or right to provide wastewater service to any existing or future
customers in the Windermere Transfer Area.
6.5 Round Rock and Windermere agree that, pending PUC approval, Windermere will have the sole
right to provide retail wastewater service within the Round Rock Transfer Area, and Round Rock
will have no further obligation or right to provide wastewater service to any existing or future
customers in the Round Rock Transfer Area.
Customers
7.1 Upon approval of the transfer of the Windermere Transfer Area by the PUC,
Windermere shall transfer all existing wastewater customers within the Windermere
Transfer Area to Round Rock. At such time, Windermere shall also transfer to
Round Rock all current Windermere accounts and related deposits for customers
with the Windermere Transfer Area.
General Provisions
8.1 Effective Date. This Agreement is effective and enforceable as between Round Rock and
Windermere following execution by both parties.
8.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. ALL
ACTS REQUIRED OR PERMITTED TO BE PERFORMED HEREUNDER ARE
PERFORMABLE IN TRAVIS COUNTY, TEXAS,AND IT IS AGREED THAT ANY CIVIL
ACTION BROUGHT TO ENFORCE OR CONSTRUE THE TERMS OR PROVISIONS
HEREOF OR TO ENJOIN OR REQUIRE THE PERFORMANCE OF ANY ACT IN
CONNECTION HEREWITH, SHALL BE BROUGHT IN A COURT OF COMPETENT
JURISDICTION SITTING IN TRAVIS COUNTY, TEXAS. IT IS AGREED THAT ANY
ADMINISTRATIVE LAW ACTION BROUGHT TO ENFORCE OR CONSTRUE THE
TERMS OR PROVISIONS HEREOF OR TO ENJOIN OR REQUIRE THE PERFORMANCE
OF ANY ACT IN CONNECTION HEREWITH, SHALL BE BROUGHT AT THE PUC OR ITS
SUCCESSOR AGENCY.
8.3 Construction and Severability. If this Agreement, or any word, clause, sentence, paragraph or
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other part thereof, shall be susceptible to more than one or conflicting interpretations, then the
interpretation which is more nearly in accordance with the general purposes and objectives of this
Agreement shall govern. In the event one or more of the provisions contained in this Agreement
shall for any reason be held to be invalid,illegal or unenforceable in any respect,such invalidity,
illegality,or unenforceability shall not affect any other provision hereof and this Agreement shall
be construed as if such invalid, illegal, or unenforceable provision had never been contained
herein.
8.4 Unintended Omission. If any punctuation, word, clause, sentence or provision necessary to give
meaning, validity or effect to any other word, clause, sentence or provision appearing in this
Agreement shall be omitted herefrom, then it is hereby declared that such omission was
unintentional and that the omitted punctuation, word, clause, sentence or provision shall be
supplied by inference.
8.5 Amendment. This Agreement may not be amended or terminated except by an instrument signed
by all parties to this Agreement.
8.6 Limitation of Liability. Neither party shall be responsible for indirect, incidental, special,
exemplary or punitive damages.
8.7 Assignment. Neither party may assign this Agreement without the prior written consent of the
other,which consent shall not be unreasonably withheld,delayed or denied.
8.8 Attorneys' Fees. In the event of any dispute and/or legal action arising from an interpretation
and/or performance of any of the provisions of this Agreement, the parties hereby agree that the
prevailing party shall be awarded reasonable attorneys' fees and costs.
8.9 Notice. Any notice required or permitted by this Agreement shall be in writing and shall be
delivered as follows with notice deemed given as indicated: (i) by personal delivery; (ii) by
overnight courier upon written verification of receipt; or (iii) by certified or registered mail,
return receipt requested,to the following:
If to Round Rock: If to Windermere:
City of Round Rock SWWC Utilities,Inc.d/b/a
Attn: City Manager Windermere Utility Company
221 E.Main St. 1620 Grand Avenue Pkwy#140
Round Rock,Texas 78664 Pflugerville,Texas 78660
Tel. 512-218-5460 Attn: Gary Rose
Tel. 512-531-6266
With a copy to: With a copy to:
Sheets&Crossfield,P.C. SWWC Utilities,Inc.d/b/a Windermere
Attn: Steve Sheets Utility Company
309 E.Main St. 1325 N. Grand Avenue
Round Rock,Texas 78664 Suite 100
Tel. 512-255-8877 Covina, CA 91724-4044
Attn: General Counsel
Tel.626-543-2500
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8.10 Entire Agreement. This Agreement reflects the entire agreement between the parties
hereto pertaining to the subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings of the parties in connection herewith.
8.11 Multiple Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, and all of which together shall be construed as one and
the same instrument.
8.12 Authori . This Agreement has been approved by both the Round Rock City Council and
the Board of Directors of Windermere.
WHEREFORE,this Agreement is executed thisJday of 2017, at Round
Rock,Texas.
CITY OF ROUND ROCK,TEXAS
By:—JOA
Alan McGraw,Mayor
SWWC UTILITIES,INC.d/b/a
WINDERMERE UTILITY COMPANY
By:
Name: (;c,- floc C
Title:
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Date:9/22/2016