O-76-272 - 2/12/1976ORDINANCE NO. 272
AN ORDINANCE APPROVING A WATER SUPPLY CONTRACT TO SELL
CITY WATER TO BRUSHY BEND PARK, INC.; AUTHORIZING AND
ORDERING THE MAYOR TO EXECUTE SAID WATER SUPPLY CONTRACT
ON BEHALF OF THE CITY OF ROUND ROCK, TEXAS; PROVIDING
FOR SAVINGS CLAUSE; PROVIDING THAT ALL ORDINANCES,
RESOLUTIONS, ORDERS OR PARTS THEREOF IN CONFLICT WITH
SAID WATER SUPPLY CONTRACT OR THIS ORDINANCE ARE
EXPRESSLY REPEALED.
WHEREAS, the City Council of the City of Round Rock, Texas, adopted
Ordinance No. 269 on January 8, 1976, and Ordinance No. 271 on January
15, 1976, which said ordinances established conditions for the City
to provide water and sewer services in areas outside the city limits
of the City of Round Rock, Texas; and
WHEREAS, Brushy Bend Park, Inc. has submitted a proposed Water
Supply Contract to the City, a copy of which has been marked Exhibit
"A" and is attached hereto and made a part hereof for all purposes,
and has requested that the City of Round Rock, Texas, sell water to
Brushy Bend Park, Inc. under the terms and provisions of said Water
Supply Contract; and
WHEREAS, the City has examined said Water Supply Contract and
the provisions thereof and in all respects deems it to be in the
best interest of the City of Round Rock, Texas, and its future
growth to execute and enter into said Contract with Brushy Bend
Park, Inc.;
NOW, THEREFORE, be it ordained by the City Council of the City
of Round Rock, Texas, as follows:
Sec. 1.
The City Council of the City of Round Rock, Texas, hereby
approves in full the Water Supply Contract submitted to the City by
Brushy Bend Park, Inc., a copy of which is marked Exhibit "A" and 4
is attached hereto and made a part hereof for all purposes.
Sec. 2.
The Mayor is hereby authorized and ordered to execute said
Water Supply Contract on behalf of the City of Round Rock, Texas,
and that said Contract shall be effective immediately upon the
execution thereof by the Mayor.
Sec. 3.
It is hereby declared to be the intention of the City Council of
the City of Round Rock, Texas, that all sub -sections, paragraphs,
sentences, clauses, and phrases of this ordinance are severable,
and if any of them shall be declared unconstitutional or invalid
by the valid judgment or decree of any court of competent jurisdiction,
such unconstitutionality or invalidity shall not affect any of the
remaining sub -sections, paragraphs, sentences, clauses, and phrases
of this ordinance, since the same would have been enacted by the
City Council of the City of Round Rock, Texas, without the
incorporation of this ordinance of any unconstitutional or invalid
sub -sections, paragraphs, sentences, clauses, or phrases.
Sec. 4.
All ordinances, resolutions, or orders heretofore enacted,
passed, or adopted by the governing body of the City of Round Rock,
Texas, or parts thereof, in conflict with said Water Supply
Contract or this ordinance, are hereby repealed to the extent of
such conflict.
READ, PASSED, AND ADOPTED this ALday of February, 1976.
ATTEST:
L ZABE H LOOBY Y t" Sec et
.4
RAYL TON, Mayor
City of Round Rock, Texas
STATE OF TEXAS
"Exhibit A"
X
COUNTY OF WILLIAMSON X
WATER SUPPLY CONTRACT
Whereas, the City of Round Rock, Texas, hereinafter
called "City", owns and operates a potable water supply
system, hereinafter called "System"; and,
Whereas, City adopted Ordinance No. 269 on January 8,
1976, and No. 271 on January 15, 1976, which ordinances
established conditions for the City to provide water and
sewer service in areas outside the City limits; and,
Whereas, Brushy Bend Park, Inc., hereinafter called
"Purchaser", desires to purchase water from City; and,
Whereas, the City finds that it can sell water to Pur-
chaser for residential and commercial purposes outside the
City without impairing services within the City; and,
Whereas, a part of City's system is an existing 8 -inch
water line which terminates at Point "A" on Exhibit No. 1,
attached hereto, which Exhibit is incorporated herein for
all purposes; and,
Whereas purchaser desires to make a connection to
City's system at Point "A" and receive water from City at
that point to serve existing and future subdivisions which
are situated outside the corporate limits of City;
NOW, THEREFORE, the parties hereto do agree and contract
as follows:
"Exhibit A" 'Cont.
I. DEFINITIONS
1.1. Acceptance. "Acceptance" means a written ack-
nowledgment by the City that the Purchaser has met all terms
and conditions of this Contract and all appropriate City
ordinances.
1.2. Construction Costs. "Construction Costs" means
all costs relating to the installation of a water line,
including, but not limited to the costs associated with the
preliminary planning, detailed planning, engineering fees,
legal fees, construction contract amounts, and any inspections
required prior to acceptance.
1.3. Existing Subdivision. "Existing Subdivision"
means any subdivision whose plat had been filed with the
County Clerk on or before January 8, 1976.
1.4. General Benefit Line. "General Benefit Line"
means a line sized with sufficient capacity to serve an area
in addition to that which is proposed to be served by Purchaser.
1.5. Local Benefit Line. "Local Benefit Line" means
a line sized with capacity only for the area to be served by
Purchaser, but does not include service lines.
1.6. New Subdivision. "New Subdivision" means any
subdivision whose plat was not on file with the County Clerk
on or before January 8, 1976.
1.7. Point of Delivery. "Point of Delivery" means the
point at which water passes through a meter and, thereafter,
is owned and controlled by Purchaser, his successors or
assigns.
2
"Exhibit A" 'Cont.
1.8. Trunk Line. "Trunk Line" means a Water Line
which extends from a Point of Delivery to a tract of land to
be developed. A Trunk Line can be either a General Benefit
or a Local Benefit Line.
1.9. Water Line. A "Water Line" is any line which is
connected either directly or indirectly to City's system. A
Water Line includes Local Benefit Lines, General Benefit
Lines, and Trunk Lines, but does not include service lines.
II. LOCATION OF WATER LINES
2.1. Utility Easements. All Water Lines shall be
installed only in publicly dedicated streets, alleys, utility
easements, or other public right -of ways which are suitable
for the construction, maintenance, and inspection of the
lines. All such easements shall be furnished at the sole
cost of Purchaser, his successors or assigns.
III. QUALITY AND TREATMENT
3.1. Local, State, and Federal Standards. The City
shall furnish potable water at the Point of Delivery which
has been treated by chlorination and such other treatment as
may in the future be directed by the City of Round Rock in
order to meet the applicable potable water quality standards
of the Texas Department of Health Resources, the Environmental
Protection Agency, or any other local, state, or federal
agency which has jurisdiction to establish such standards.
3
"Exhibit A" 'cont.
IV. QUANTITY, MEASUREMENT AND BILLING
4.1. Supply. City agrees to furnish to Purchaser at
Point of Delivery such quantities of water as may be required
by Purchaser, not to exceed 3.04 million gallons per day
peak flow, such quantity being the design capacity of a 12 -
inch line.
4.2. Supplemental Supply. The City acknowledges that
the present dependable yield of its system is limited.
City, therefore, agrees to take all reasonable steps to
obtain a supplemental supply of water, if necessary, in
order to meet the water supply needs of City and to meet
the obligations of this Contract.
4.3. Metering Equipment. Purchaser, at his sole
expense, shall install at the Point of Delivery the necessary
metering equipment and required devices of standard type to
properly measure the quantity of water delivered to Purchaser.
Thereafter, City shall calibrate such metering equipment at
a reasonable time after a request to do so by the Purchaser.
but not less frequently than once every twelve (12) months.
A meter registering not more than three percent (3%) above
or below the test result shall be deemed to be accurate.
The previous readings of any meter disclosed by test to be
inaccurate shall be corrected for the three (3) months
previous to such test in accordance with the percentage of
inaccuracy found by such test. If the meter fails to register
for any period, the amount of water furnished during such
period shall be deemed to be the amount of water delivered
4
"Exhibit A" Cont.
in the corresponding period immediately prior to the failure,
unless the City and the Purchaser shall agree upon a different
amount. The metering equipment register shall be read on or
about the first day of each month.
4.4. Billing Procedure. On or before the 15th day of
each month, City will submit to Purchaser an itemized statement
of the amount of water determined to be consumed by Purchaser
at the Point of Delivery during the preceding month and a
statement of the charges therefor. The statement shall
contain a due date, which date shall not be before the 15th
day of the following month. If payment is not received by
the City by the due date, the statement shall be deemed
delinquent. The City shall notify the purchaser in writing
when any such payment has become delinquent, and if such
delinquency is not removed within thirty (30) days after
receiving such written notice, the City, at its discretion,
may cease supplying water to the Purchaser under the terms
of this agreement. After water has ceased to be supplied,
the City, at its discretion, may notify the Purchaser of its
intention to declare this Contract forfeited and null and
void. Upon such notice, Purchaser shall have thirty (30)
days to pay all delinquent charges and penalties in order to
reinstate water supply prior to final action by the City in
declaring this Contract forfeited and null and void.
V. CONDITIONS OF SERVICE
5.1. Rates. Purchaser shall pay City for the water
5
"Exhibit A"Cont.'
delivered under this Contract in accordance with the outside
city limits bulk rates, hereinafter called "OCL Bulk Rates",
which rates shall be established by ordinance of the City.
Provided, however, such rates to be supplied under this
Contract shall never exceed 1.25 times the lowest inside
city limits rate, hereinafter called "ICL Rate", per thousand
gallons of water delivered to a single residential customer.
5.2. Advance Deposit. Purchaser shall make an advance
deposit in the amount of Five Hundred and No/100 ($500.00)
Dollars, which sum is considered to be reasonably adequate
to secure Purchaser's future monthly water charges. This
deposit shall be collected and held by the City for the term
of this agreement and will not accrue interest in favor of
the Purchaser during the time in which it is retained by the
City.
5.3. Purchaser's Delivery of Water. Purchaser is
expressly authorized to resell the water delivered hereunder
both to retail customers and to wholesale customers and such
retail or wholesale customer may be a residential, commercial,
or industrial user. Provided, however, that Purchaser shall
not deliver water to any New Subdivision unless such sub-
division is served by a sanitary sewerage system. It is
understood and agreed by both parties hereto that any tract
of land of 5.0 acres- or more is not considered a subdivision
for these purposes and a single family residence located
thereon may be served with water hereunder whether or not
the tract has a septic tank system as a means of waste
6
"Exhibit A" Cont.
disposal so long as the tract is not subdivided and so long
as the land use continues to be a single family residence.
Purchaser agrees to place this restriction in any water
sales agreement between Purchaser and the owner of such
tracts.
5.4. Customer Meters. Purchaser shall install, or
require to be installed, a separate water service for each
individual lot or tract of land which is served with water
under this Contract, and Purchaser shall meter each service
in accordance with the then -existing policy of the City.
5.5. Inspection of System. Purchaser shall permit
personnel of the City to conduct periodic inspections of the
Purchaser's system and permit meter reading personnel of the
City to conduct periodic readings of Purchaser's meters if
such readings are deemed necessary by the City. Purchaser
shall have the right to accompany City on any such inspection.
5.6. Sanitary Control Agreement. Purchaser shall
permit personnel of City to enter upon the property of any
and all of Purchaser's retail or wholesale customers which
are served by water from City, for the purpose of inspecting
any and all connections made by such customers to Purchaser's
water lines. Should the City have reasonable grounds to
believe that any condition exists which might result in
contamination of City's water supply, or jeopardize City's
certification by the State Department of Health Resources,
then City shall notify Purchaser and Purchaser shall immedi-
ately correct any such condition. In the event Purchaser
7
"Exhibit A" Cont.
fails to correct such condition within ten (10) days, the
City, at its sole discretion, may cease delivering water
under this Contract until such condition is corrected to the
satisfaction of City. Nothing herein shall be construed to
impose upon the City the duty and obligation to make any
inspection or to regulate the quality of water beyond City's
metering points to Purchaser. The Purchaser shall be solely
responsible for the operation, maintenance, regulation, and
employment of all facilities beyond the metering points, and
the regulation of the use of all water received by it at the
metering points. In the alternative, and at its sole option,
City may enter the property of Purchaser or Purchaser's
customers and fix any condition described above. In the
event City exercises this option, all costs associated with
such remedial action will be included on the following
month's statement to Purchaser.
5.7. Operation of Purchaser's System. Purchaser
agrees to operate its system, and to require any customers
of Purchaser to operate their system, in accordance with all
applicable regulations of the City, the Texas Department of
Health Resources, and the Federal Environmental Protection
Agency.
5.8. Quality of Water Beyond Point of Delivery.
Purchaser agrees to maintain the quality of water beyond the
Point of Delivery and provide necessary chlorination or
other treatment so as to maintain the quality of water
throughout Purchaser's service area, and Purchaser agrees to
8
"Exhibit A" 'Cont.
submit samples of such water in accordance with the re-
quirements of the Texas Department of Health Resources.
VI. DESIGN AND CONSTRUCTION
6.1. Connection to System. City authorizes Purchaser
to connect a 12 -inch Trunk Line to City's system at the Point
of Delivery. The initial Point of Delivery is the discharge
side of a meter to be installed by Purchaser on the end of
the existing City system on Sam Bass Road and located at
Point "A" on Exhibit No. 1. Initially, the Trunk Line will
run in a generally northwesterly direction from Point "A"
to Point "B" in order to provide service to an Existing
Subdivision known as Brushy Bend Park.
6.2. Sizing. All water lines and appurtenances thereto
shall be sized to serve the ultimate requirements of the
City, as determined by City's consulting engineers.
6.3. Plans and Specifications. Prior to any con-
struction of any water lines, Purchaser shall furnish City,
at Purchaser's cost, the plans and specifications of the
system. Such plans and specifications shall be in accordance
with the applicable design criteria.
6.4. Inspection and Notice of Construction. It shall
be the duty of Purchaser and his engineer to inspect the
system during construction to guarantee construction in
accordance with the plans and specifications. Purchaser
shall notify City in writing 48 hours prior to commencement
of construction, and shall give the location of, and the
date of the start of construction.
9
"Exhibit A" Cont.
6.5. Completion Certificates. Purchaser shall provide
City with contract completion certificates within thirty
(30) days after completion of construction.
6.6. As -Built Drawings. Purchaser shall furnish City
with a set of as -built drawings within thirty (30) days
after completion of construction. The as -built drawings
shall include both a blue line print and a sepia.
6.7. Acceptance. For those lines which must be
dedicated to City, acceptance of such lines will not take
place until after the system has been approved by City's
engineers.
6.8. Affidavits. Purchaser shall provide City payment
and receipt affidavits within thirty (30) days following
completion of the work by Purchaser.
6.9. Bidding and Award. The City understands that
Purchaser may supply water under this Contract to areas
which are or may be located within special districts auth-
orized by Article 16, Section 59, of the Texas Constitution.
Therefore, Purchaser may follow all applicable requirements
concerning the bidding and awarding of construction contracts
which have been established by the Texas Water Rights Com-
mission for construction of such systems, and City agrees
that Purchaser may do so.
VII. SPECIAL CONDITIONS
7.1. Refunds and Credits. In the event City requires
Purchaser to construct a General Benefit Line, and such line
10
"Exhibit A" Cont.
is larger than eight (8) inches, the City shall enter into a
contract with Purchaser for reimbursement of the construction
costs for the excess capacity for other users. The contract
shall provide that other users of the excess capacity shall
pay City a tap fee on a pro -rata basis, as provided by City
ordinance. Reimbursement to Purchaser under such contract
shall be made only from such tap fees.
7.2. Review and Approval of Plats. City shall have
the right to review and approve all plats and plans of sub-
divisions which will receive water directly or indirectly as
a result of this Contract.
7.3. Assignment. Purchaser has the right to assign
this Contract, in whole or in part, to a public entity or to
a private utility company. In the event of such an assignment,
Purchaser agrees to bind his assignee to all terms and
conditions of this Contract. Additionally, Purchaser agrees
to notify City when such assignment has taken place.
7.4. Purchaser's Duty to Enlarge City's System.
Purchaser understands and acknowledges that a portion of
City's system extending to the Point of Delivery designated
as Point "A" on Exhibit No. 1 is an 8 -inch line. Purchaser
agrees to pay, at Purchaser's sole expense, all construction
costs necessary to increase the capacity of City's system
from Point "A" to City's corporate boundary at such time as
the existing 8 -inch line has insufficient capacity to provide
the requirements of Purchaser.
7.5. Indemnification. Purchaser agrees to indemnify
11
"Exhibit A" Cont.'
and hold City harmless from any claims which are made against
City which arise as a result of Purchaser's negligence in the
operation of Purchaser's water system.
VIII. GENERAL CONDITIONS.
8.1. Term. The term of this Contract shall be a
period of forty (40) years from the date of its execution.
If, at the end of the term of this Contract, City elects not
to renew this agreement, City shall not terminate service
until Purchaser has had a reasonable time, which shall be
period not less than eighteen (18) months, in which to
procure alternate service.
8.2. City Use of Purchaser's System.
City requires Purchaser to
in order to provide excess
from Purchaser's system in
In the event
a
construct a General Benefit Line
capacity, City may withdraw water
an amount not to exceed the
difference between the capacity which would have been required
for a Local Benefit Line and the capacity of the General
Benefit Line. Additionally, City may withdraw water from any
portion of Purchaser's system when the capacity of that par-
ticular portion of Purchser's system has been supplemented
and replaced by extensions, alterations, or improvements to
City's system.
8.3. Force Majeure. In case, by reason of force
majeure, either party hereto shall be rendered unable to
carry out its obligations, fully or in part, under this
agreement, other than the obligation of the Purchaser to
12
"Exhibit A" Cont.'
make the payment required under the terms hereof, then, if
such party shall give notice and full particulars of each
force majeure in writing to the other party within a rea-
sonable time after occurence of the event of cause relied
on, the obligation of the party filing such notice, so far
as it is affected by such force majeure, shall be suspended
during the continuance of the inability then claimed, but
for no longer period, and such party shall endeavor to
remove or overcome such inability with all reasonable dispatch.
The term "force majeure" as employed herein shall mean, but
without limitation, acts of God, strikes, lockouts, or other
industrial disturbances, acts of the public enemy, war,
orders of any kind of the government of the United States,
or the State of Texas, or any civil or military authority,
insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, hurricanes, storms, floods, washouts,
droughts, arrests, restraint of government and people, civil
disturbances, explosions, breakage or or accidents to machi-
nery, pipelines or canals, partial or entire failure of
water supply and inability on the part of the City to deliver
water hereunder, or of the Purchaser to receive water hereunder,
or on account of any other causes not reasonably within the
control of the party claiming such inability. The settlement
of strikes and lockouts shall be entirely within the discretion
of the party having the difficulty, and the above requirement
that any force majeure shall be remedied with all reasonable
dispatch, shall not require the settlement of strikes and
13
"Exhibit A" Cont.
lockouts as acceding to the demands of the opposing party or
parties when such course is unfavorable, in the judgment of
the party having the difficulty. In the event of an extended
shortage of water, or the supply of water available to the
City is otherwise diminished over an extended period of
time, the supply of water to the Purchaser shall be reduced
or diminished in the same ratio or proportion as the supply
to other City customers is reduced or diminished.
8.4. Regulatory Agencies. Purchaser will comply with
all applicable statutes, rules, and regulations as may now
exist and as may be promulgated by the City, the State of
Texas and its administrative agencies, and the Federal Gov-
ernment and its administrative agencies. Purchaser and City
will collaborate in obtaining any permits or certificates as
may be required to comply with any such laws, rules, or
regulations.
8.5.. Notice of Violation. In the event that either
the City or the Purchaser shall violate any of the terms of
this Contract, the aggrieved party shall promptly notify the
other party of the violation. In the event such violation
is not cured within thirty (30) days after the receipt of
such notice, the party sending the notice, at its discretion,
may notify the other party of its intention to declare this
Contract forfeited and null and void. Upon receipt of such
notice, the delinquent party shall have thirty (30) days to
cure such violation prior to final action by the other party
declaring this Contract forfeited and null and void. Any
14
"Exhibit A" 'Cont.'
notice requirement under the terms of this agreement shall
be in writing and shall be delivered by certified mail in
accordance with Section 8.8, herein.
8.6. Waiver. No failure on the part of either party
to this Contract to require the performance by the other
party of any portion of this Contract shall in any way
affect either party's right to enforce such provision, nor
shall any waiver by either party be taken or held to be a
waiver of any other provision. No rights under this agreement
may be waived and no modification or amendment to this
agreement may be made except by written amendment executed
by the parties.
8.7. Headings. All headings in this Contract have
been inserted for convenient reference only and shall not in
any manner be construed as modifying, amending, or affecting
in any way the express terms and provisions hereof.
8.8. Notice. All notices required under this Contract
shall be sent by certified mail, return receipt requested,
as follows:
Notices to Purchaser: Perry 0. Mayfield
406 West Austin
Round Rock, Texas 78664
Notices to City:
City Manager
City Hall
Round Rock, Texas
15
EXECUTED THIS /. DAY OF
ATTEST:
BY:
"Exhibit A" `Cont.,
, 1976.
BRUSHY BEND PARK, INC.
1/4
Perry Ma afield - Presi ent
N. T. Whitlow - Assistant Secretary
BY:
ATTEST:
CITY OF ROUND ROCK, TEXAS
lizak th Looby - Secre- ry
and Litton - Mayor