R-07-10-25-11E2 - 10/25/2007 RESOLUTION NO. R-07-10-25-11E2
WHEREAS, Dell U.S .A. L. P. ( "Dell" ) is currently receiving
wastewater services from the City of Round Rock ( "City" ) and is billed
for such services utilizing the winter average, and
WHEREAS, the City Council wishes to enter into a Wastewater
Service Billing Agreement with Dell to more accurately reflect the
wastewater service charges, 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 said Agreement with Dell, 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 25th day of October, 0
NYL L, Mayor
Ci of Ro
A TEST: und Rock, Texas
CHRISTINE R. MARTINEZ, City Sec etary
0:\wdox\RESOLUTI\R71025E2.WPD/=C
THE STATE OF TEXAS §
§ KNOW ALL BY THESE PRESENTS:
COUNTY OF WILLIAMSON §
WASTEWATER SERVICE BILLING AGREEMENT
THIS WASTEWATER SERVICE . BILLING AQ
MMNT (hereinafter the
"Agreement"), is hereby entered on the day of , 2007 by and
between DELL USA, L.P. (hereinafter"Dell"), a Texas domestic corporation with offices at One
Dell Way, Round Rock, TX 78682 and the CITY OF ROUND ROCK, TEXAS (hereinafter
"City"), a home-rule municipality and political subdivision of the State of Texas with offices at
221 East Main Street, Round Rock, Texas 78664. In this Agreement, the City and Dell are
sometimes referred to individually as "a Party"and collectively as "the Parties."
WHEREAS, Dell is currently receiving wastewater service from the City; and
WHEREAS, Dell currently is billed for wastewater services utilizing the winter average
in accordance with Chapter 10, Section 10.202(1)(c) of the Code of Ordinances, 1995 Edition,
Round Rock, Texas; and
WHEREAS, Dell desires to enter into an agreement with the City for the purpose of more
accurately calculating monthly wastewater service charges owed to the City; and
WHEREAS, the City desires to enter into an agreement with Dell providing for new and
different terms to govern the charges due for wastewater service provided by the City;
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
contained in this Agreement, the Parties do agree as follows:
ARTICLE 1. EFFECTIVE DATE AND TERM
Section 1.1 Effective Date
This Agreement shall be effective on the date it has been signed by both Parties and shall
continue in full force and effect unless and until it expires by operation of the term stated herein,
or until terminated or extended as provided herein.
Section 1.2 Term
The term of this Agreement is for an initial twelve (12) month period from the effective
date hereof. Thereafter, this Agreement may be terminated by either Party by giving the other
party sixty (60)days written notice of such termination.
C—l-,
IBIT
00122094/nsi—�
ARTICLE 2. LICENSE
Section 2.1 License Granted to City
2.1.1 Dell hereby grants the City the right to enter onto the Property for the purposes of
performing the obligations required under this Agreement, including reading the all of the meters
that are subject to Agreement, as more fully described in Exhibit A attached to this Agreement
and made part of it.
2.1.2 It is understood that this article of the Agreement creates a license only and that
the City does not and shall not claim at any time any interest or estate of any kind in the
Property.
2.1.3 It is further understood that the City has no duty to maintain, operate, replace,
upgrade,or repair any improvement in or upon the Property under this Agreement.
Section 2.2 Term and Revocation of License
2.2.1 The license created under this Agreement is for a continuing purpose and without
a specific duration. Absent revocation, it shall be for as long as is necessary to comply with the
terms of the Agreement.
2.2.2 In consideration of the mutual covenants and responsibilities contained herein,
Dell acknowledges that the license granted by this Agreement shall be irrevocable, except by
mutual agreement of the Parties.
Section 2.3 Assignment of License
2.3.1 The license granted by this Agreement personal to the City or its authorized
agents contracted to perform the services for which this license is intended.
2.3.2 The license granted by this Agreement may be assigned to a successor in interest
of either Party, with or without the mutual consent of the original Parties. Any other assignment
of the license granted by this Agreement is void without the written consent of both Parties.
ARTICLE 3. METERS AND CALIBRATION
Section 3.1 Description of Meters
Dell has six cooling towers located at is Round Rock facility. Each cooling tower has two
types of meters: make-up meters("Make-up Meters") and blow-down meters ("Blow-down
Meters"). The aforesaid meters ("Meters")are more fully described by location and name in
Exhibit B.
Section 3.2 Dell's Obligations
3.2.1 Dell shall cause the Meters to be calibrated annually between October 1 and
December 1 of each year.
2
3.2.2 Dell shall provide the annual calibration data to the City no later than December
10 of each year.
3.2.3 The annual meter calibrations shall be at Dell's cost and performed by an
independent, outside contractor approved in advance by the City, which approval shall not be
unreasonably withheld.
ARTICLE 4. METERING AND REPORTING
On or before March 31, of each year, Dell shall provide the City with historical data
(hereinafter the "Historical Data") for the Meters for the previous twelve (12) months from
March of the previous year through February of the current year.
ARTICLE 5. RATE CALCULATION AND BILLING
Section 5.1 City's Obligations
5.1.1 The City shall bill the following five (5) accounts in accordance with the
calculation set forth in this Agreement:
21585901
21492001
21000401
21005900
21926801
5.1.2 The City shall calculate the wastewater bill for said accounts as the monthly water
use less the average cooling tower wastewater use (being the sum total of the average monthly
use measured by the Blow-down Meters less the, Make-up Meters based on the Historical Data).
The process by which Dell's wastewater bill shall be calculated is more fully described in
Exhibit C.
5.1.3 This Agreement shall not be interpreted to include any accounts other than the
five (5) listed in Subsection 5.1.1 above. All other wastewater services shall be billed in
accordance with Chapter 10, Section 10.202 of the Code of Ordinances, 1995 Edition, City of
Round Rock, Texas, as amended.
ARTICLE 6. DEFAULT
Section 6.1 Termination for Default
6.1.1 If Dell defaults in the undertaking of any of its obligations under this Agreement,
the City shall have the right to terminate this Agreement by giving written notification of
termination.
6.1.2 Upon receipt by Dell of the aforesaid notification of default, Dell shall have
fifteen (15) days to cure such default. If the default has not been cured to the City's satisfaction
3
within fifteen (15) days of receipt of such notice, the City may terminate this Agreement by
giving written notice to Dell.
ARTICLE 7. TERMINATION AND REVERSION TO STANDARD BILLING
Section 7.1 Termination
Either Party has the right to terminate this Agreement, in whole or in part, for
convenience and without cause, at any time upon sixty (60) days' written notice to the other
Party.
Section 7.2 Reversion to Standard Billing
In the event that either Party terminates this Agreement for any reason listed above, or
upon the expiration of this Agreement by its own terms, the Parties shall discontinue all
obligations in connection with the performance of this Agreement, and effectively immediately
upon any such termination or expiration, Dell shall be billed for wastewater services in
accordance with Chapter 10, Section 10.202 of the Code of Ordinances, 1995 Edition, City of
Round Rock, Texas, as amended.
ARTICLE 8. NOTICE
Section 8.1 Tyne of Notice Required and Effect
8.1.1 All notices and other communications in connection with this Agreement shall be
in writing and shall be considered given as follows:
8.1.1.1 When delivered personally to the recipient's address as stated in this
Agreement; or
8.1.1.2 Three (3) days after being deposited in the U.S. First-Class Mail, with
postage prepaid to the recipient's address as stated in this Agreement.
Section 8.2 Addresses and Contact Persons
8.2.1 Notice to Dell:
Vicky Lang
Dell U.S.A., L.P.
One Dell Way/R3E-11
Round Rock, TX 78682
8.2.2 Notice to City:
James R. Nuse, P.E. Stephan L. Sheets
City Manager City Attorney
221 East Main Street AND TO: 309 East Main Street
Round Rock, TX 78664 Round Rock, TX 78664
4
ARTICLE 9. MISCELLANEOUS PROVISIONS
Section 9.1 Indemnification
9.1.1 Dell shall defend (at the option of the City), indemnify, and hold City, its
successors, assigns, officers, employees and elected officials harmless from and against all suits,
actions, legal proceedings, claims, demands, damages, costs, expenses, attorney's fees, and any
and all other costs or fees arising out of, or incident to, concerning or resulting from the fault of
Dell, or Dell's agents, employees or subcontractors, in the performance of Dell's obligations
under this Agreement, no matter how, or to whom, such loss may occur.
9.1.2 Nothing herein shall be deemed to limit the rights of the City or Dell (including,
but not limited to the right to seek contribution) against any third party who may be liable for an
indemnified claim.
Section 9.2 Compliance with Laws Charter, and Ordinances
Dell, its agents, employees and subcontractors shall comply with all applicable federal
and state laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all
applicable rules and regulations promulgated by local, state and national boards, bureaus and
agencies.
Section 9.3 Assignment and DelejZation
9.3.1 The Parties each hereby bind themselves, their successors, assigns and legal
representatives to each other regarding the terms hereof.
9.3.2 Neither Party shall assign, sublet or transfer any interest in this Agreement
without prior written authorization of the other Party.
Section 9.4 Applicable Law Enforcement and Venue
9.4.1 This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas.
9.4.2 This Agreement shall be governed by and construed in accordance with the laws
and court decisions of the State of Texas.
Section.9.5 Exclusive Agreement and Method of Amendment
9.5.1 This document, and all appended documents, constitutes the entire Agreement
between Dell and the City.
9.5.2 This Agreement may only be amended or supplemented by mutual agreement of
the Parties hereto in writing.
5
Section 9.6 Severability
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any provision of this Agreement void shall in no way affect
the validity or enforceability of any other provision of this Agreement. Any void provision shall
be deemed severed from this Agreement, and the balance of this Agreement shall be construed
and enforced as if this Agreement did not contain the particular provision held to be void. The
Parties further agree to amend this Agreement to replace any stricken provision with a valid
provision that comes as close as possible to the intent of the stricken provision. The provisions of
this section shall not prevent this entire Agreement from being void should any provision which
is of the essence of this Agreement be determined void.
Section 9.7 Force Majeure
Neither the City nor Dell shall be deemed in violation of this Agreement if it is prevented
from performing any of its obligations hereunder by reasons of force majeure, which shall
include acts of God, strikes, lockouts, or other industrial disturbances, acts of the public enemy,
orders of any kind from 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, restraint of the government and the people, civil disturbances,
explosions, or other causes not reasonably within the control of the party claiming such inability.
IN WITNESS WHEREOF, the City and Dell have executed this Agreement in duplicate
originals.
DELL USA, L.P.
By: Dell Gen.P. Corp., its general partner
By:
{ c
Na e: �, ,
Title: yyyl_-
Date:
THE CITY OF ROUND ROCK
By:
Name: Nyle Maxwell
Title: Mayor
Date:
ATTEST: FOR CITY, APPROVED AS TO FORM:
By: By
Christine R. Martinez, City Secretary Stephan L. Sheets, City Attorney
6
Exhibit A
List of all Meters to Which Dell Grants the City Access in accordance with this Agreement:
Make-Up Meters:
RR 1-MU
RR2-1MU
RR2-2MU
RR3-MU
RR5-MU
RR8-MU
Blow-down Meters:
RR 1-BD
RR2-1BD
RR2-2BD
RR3-BD
RR5-BD
RR8-BD
7
Exhibit B
Identification of Make-up and Blow-down Meters by Building Location and Name:
Building 1 401 Dell Way Round Rock Texas 78682
Make-up Meter: RRI-MU
Blow-down Meter: RR1-BD
Building 2 501 Dell Way Round Rock Texas 78682
Make-up Meters: RR2-1 MU, RR2-2MU
Blow-down Meters: RR2-IBD, RR2-2BD
Building 3 2300 Greenlawn Blvd Round Rock Texas 78682
Make-up Meter:RR3-MU
Blow-down Meter: RR3-BD
Building 5 200 Dell Way Round Rock Texas 78682
Make-up Meter: RR5-MU
Blow Down Meter: RR5-BD
Building 8 2401 Greenlawn Blvd Round Rock Texas 78682
Make-up Meter: RR8-MU
Blow-down Meter: RR8-BD
8
Exhibit C
Each month the City shall present Dell with a bill for wastewater services calculated in
the following manner:
• The City shall determine the total monthly average of Make-up water usage (hereinafter
the "Monthly Make-up Average") by totaling the annual usage for each of the Make-up
Meters (as named herein) based on the Historical Data provided by Dell, and then
dividing by 12. The Monthly Make-up Average shall be calculated once annually upon
receipt of the Historical Data collected from the previous twelve-month period. The
Monthly Make-up Average shall represent the monthly amount of Make-up water used
by Dell, expressed in gallons, for purposes of the monthly billing calculation.
• The City shall determine the total monthly average of Blow-down water usage
(hereinafter the "Monthly Blow-down Average") by totaling the annual usage for each of
the Blow-down Meters (as named herein), based on the Historical Data provided by Dell,
and then dividing by 12. The Monthly Blow-down Average shall be calculated once
annually upon receipt of the Historical Data collected from the previous twelve-month
period. The Monthly Blow-down Average shall represent the monthly amount of Blow-
down water used by Dell, expressed in gallons for purposes of the monthly billing
calculation.
• The City shall read the all of the domestic water meters and calculate the number of
gallons of water used for the month (hereinafter the "Total Monthly Water Usage").
• To determine the monthly bill for Dell, each month the City shall apply the following
method:
o Step 1:The Monthly Make-up Water Usage shall be subtracted from the Total
Monthly Water Usage.
o Step 2:The Monthly Blow-down Water Usage shall be added to the difference
between the Total Monthly Water Usage and the Monthly Make-up Water Usage,
as found in Step 1.
o Step 3:The sum of the difference between the Total Monthly Water Usage less
the Total Make-up Water Usage plus the Total Blow-down Water Usage shall
represent the total amount of wastewater, expressed in gallons, discharged by Dell
into the City's wastewater system.
• The City shall charge Dell for the calculated number of gallons of wastewater discharged
into the City's wastewater system in accordance with Section 10.202(1)(a)(1)(2) of the
Code of Ordinances, 1995 Edition, City of Round Rock , Texas, as amended from time to
time.
9
DATE: October 18, 2007
SUBJECT: City Council Meeting — October 25, 2007
ITEM: 11E2. Consider a resolution authorizing the Mayor to execute a
Wastewater Service Billing Agreement with DELL, USA, LP.
Department: Water and Wastewater Utilities
Staff Person: Michael Thane, P.E., Director of Utilities
Justification:
Dell is a water and wastewater utility customer of the City of Round Rock. They
have six cooling towers that serve five different buildings on the Round Rock
campus. Dell requested that the evaporated water from the cooling towers be
accounted for when calculating their wastewater bill, since the evaporated water is
not placed back into the city's wastewater system. The agreement will more
accurately reflect the quantity of wastewater sent to the City's system, and therefore
the wastewater billing for Dell.
Funding•
Cost: N/A
Source of funds: N/A
Outside Resources: N/A
Background Information•
Each of the six cooling towers have two water meters installed on them. One, the
make-up water meter, measures the amount of potable water flowing into the
cooling tower. The other water meter, the blow-down meter, measures the amount
of water leaving the cooling tower and flowing into the City's wastewater collection
system. The difference between the readings of these two meters represents
evaporative loss. Since water loss evaporates and does not enter the wastewater
collection system, it should not be included in the amount of wastewater billed to
Dell. The agreement formulates a straight-forward method for accounting for the
evaporation loss, and more fairly allocates the number of gallons per month per
building that Dell should pay for wastewater.
Public Comment: N/A
EXECUTED
DOCUMENT
FOLLOWS
THE STATE OF TEXAS §
§ KNOW ALL BY THESE PRESENTS:
COUNTY OF WILLIAMSON §
WASTEWATER SERVICE BILLING AGREEMENT
THIS WASTEWATER SERVICE BILLING AGREEMENT (hereinafter the
"Agreement"), is hereby entered on the day of 2007 by and
between DELL USA, L.P. (hereinafter"Dell"), a Texas domestic corporation with offices at One
Dell Way, Round Rock, TX 78682 and the CITY OF ROUND ROCK, TEXAS (hereinafter
"City"), a home-rule municipality and political subdivision of the State of Texas with offices at
221 East Main Street, Round Rock, Texas 78664. In this Agreement, the City and Dell are
sometimes referred to individually as "a Party"and collectively as "the Parties."
WHEREAS, Dell is currently receiving wastewater service from the City; and
WHEREAS, Dell currently is billed for wastewater services utilizing the winter average
in accordance with Chapter 10, Section 10.202(1)(c) of the Code of Ordinances, 1995 Edition,
Round Rock, Texas; and
WHEREAS, Dell desires to enter into an agreement with the City for the purpose of more
accurately calculating monthly wastewater service charges owed to the City; and
WHEREAS, the City desires to enter into an agreement with Dell providing for new and
different terms to govern the charges due for wastewater service provided by the City;
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
contained in this Agreement, the Parties do agree as follows:
ARTICLE 1. EFFECTIVE DATE AND TERM
Section 1.1 Effective Date
This Agreement shall be effective on the date it has been signed by both Parties and shall
continue in full force and effect unless and until it expires by operation of the term stated herein,
or until terminated or extended as provided herein.
Section 1.2 Term
The term of this Agreement is for an initial twelve (12) month period from the effective
date hereof. Thereafter, this Agreement may be terminated by either Party by giving the other
party sixty(60)days written notice of such termination.
00122094/ps
R'C:�— l U..
ARTICLE 2. LICENSE
Section 2.1 License Granted to City
2.1.1 Dell hereby grants the City the right to enter onto the Property for the purposes of
performing the obligations required under this Agreement, including reading the all of the meters
that are subject to Agreement, as more fully described in Exhibit A attached to this Agreement
and made part of it.
2.1.2 It is understood that this article of the Agreement creates a license only and that
the City does not and shall not claim at any time any interest or estate of any kind in the
Property.
2.1.3 It is further understood that the City has no duty to maintain, operate, replace,
upgrade, or repair any improvement in or upon the Property under this Agreement.
Section 2.2 Term and Revocation of License
2.2.1 The license created under this Agreement is for a continuing purpose and without
a specific duration. Absent revocation, it shall be for as long as is necessary to comply with the
terms of the Agreement.
2.2.2 In consideration of the mutual covenants and responsibilities contained herein,
Dell acknowledges that the license granted by this Agreement shall be irrevocable, except by
mutual agreement of the Parties.
Section 2.3 Assignment of License
2.3.1 The license granted by this Agreement personal to the City or its authorized
agents contracted to perform the services for which this license is intended.
2.3.2 The license granted by this Agreement may be assigned to a successor in interest
of either Party, with or without the mutual consent of the original Parties. Any other assignment
of the license granted by this Agreement is void without the written consent of both Parties.
ARTICLE 3. METERS AND CALIBRATION
Section 3.1 Description of Meters
Dell has six cooling towers located at is Round Rock facility. Each cooling tower has two
types of meters: make-up meters("Make-up Meters") and blow-down meters("Blow-down
Meters"). The aforesaid meters ("Meters")are more fully described by location and name in
Exhibit B.
Section 3.2 Dell's Obligations
3.2.1 Dell shall cause the Meters to be calibrated annually between October 1 and
December 1 of each year.
2
3.2.2 Dell shall provide the annual calibration data to the City no later than December
10 of each year.
3.2.3 The annual meter calibrations shall be at Dell's cost and performed by an
independent, outside contractor approved in advance by the City, which approval shall not be
unreasonably withheld.
ARTICLE 4. METERING AND REPORTING
On or before March 31, of each year, Dell shall provide the City with historical data
(hereinafter the "Historical Data") for the Meters for the previous twelve (12) months from
March of the previous year through February of the current year.
ARTICLE 5. RATE CALCULATION AND BILLING
Section 5.1 City's Obligations
5.1.1 The City shall bill the following five (5) accounts in accordance with the
calculation set forth in this Agreement:
21585901
21492001
21000401
21005900
21926801
5.1.2 The City shall calculate the wastewater bill for said accounts as the monthly water
use less the average cooling tower wastewater use (being the sum total of the average monthly
use measured by the Blow-down Meters less the, Make-up Meters based on the Historical Data).
The process by which Dell's wastewater bill shall be calculated is more fully described in
Exhibit C.
5.1.3 This Agreement shall not be interpreted to include any accounts other than the
five (5) listed in Subsection 5.1.1 above. All other wastewater services shall be billed in
accordance with Chapter 10, Section 10.202 of the Code of Ordinances, 1995 Edition, City of
Round Rock, Texas, as amended.
ARTICLE 6. DEFAULT
Section 6.1 Termination for Default
6.1.1 If Dell defaults in the undertaking of any of its obligations under this Agreement,
the City shall have the right to terminate this Agreement by giving written notification of
termination.
6.1.2 Upon receipt by Dell of the aforesaid notification of default, Dell shall have
fifteen (15) days to cure such default. If the default has not been cured to the City's satisfaction
3
within fifteen (15) days of receipt of such notice, the City may terminate this Agreement by
giving written notice to Dell.
ARTICLE 7. TERMINATION AND REVERSION TO STANDARD BILLING
Section 7.1 Termination
Either Party has the right to terminate this Agreement, in whole or in part, for
convenience and without cause, at any time upon sixty (60) days' written notice to the other
Party.
Section 7.2 Reversion to Standard Billing
In the event that either Party terminates this Agreement for any reason listed above, or
upon the expiration of this Agreement by its own terms, the Parties shall discontinue all
obligations in connection with the performance of this Agreement, and effectively immediately
upon any such termination or expiration, Dell shall be billed for wastewater services in
accordance with Chapter 10, Section 10.202 of the Code of Ordinances, 1995 Edition, City of
Round Rock, Texas, as amended.
ARTICLE 8. NOTICE
Section 8.1 Tyne of Notice Required and Effect
8.1.1 All notices and other communications in connection with this Agreement shall be
in writing and shall be considered given as follows:
8.1.1.1 When delivered personally to the recipient's address as stated in this
Agreement; or
8.1.1.2 Three (3) days after being deposited in the U.S. First-Class Mail, with
postage prepaid to the recipient's address as stated in this Agreement.
Section 8.2 Addresses and Contact Persons
8.2.1 Notice to Dell:
Vicky Lang
Dell U.S.A., L.P.
One Dell Way/R3E-11
Round Rock, TX 78682
8.2.2 Notice to City:
James R. Nuse, P.E. Stephan L. Sheets
City Manager City Attorney
221 East Main Street AND TO: 309 East Main Street
Round Rock, TX 78664 Round Rock, TX 78664
4
ARTICLE 9. MISCELLANEOUS PROVISIONS
Section 9.1 Indemnification
9.1.1 Dell shall defend (at the option of the City), indemnify, and hold City, its
successors, assigns, officers, employees and elected officials harmless from and against all suits,
actions, legal proceedings, claims, demands, damages, costs, expenses, attorney's fees, and any
and all other costs or fees arising out of, or incident to, concerning or resulting from the fault of
Dell, or Dell's agents, employees or subcontractors, in the performance of Dell's obligations
under this Agreement, no matter how, or to whom, such loss may occur.
9.1.2 Nothing herein shall be deemed to limit the rights of the City or Dell (including,
but not limited to the right to seek contribution) against any third party who may be liable for an
indemnified claim.
Section 9.2 Compliance with Laws Charter, and Ordinances
Dell, its agents, employees and subcontractors shall comply with all applicable federal
and state laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all
applicable rules and regulations promulgated by local, state and national boards, bureaus and
agencies.
Section 9.3 Assignment and Delegation
9.3.1 The Parties each hereby bind themselves, their successors, assigns and legal
representatives to each other regarding the terms hereof.
9.3.2 Neither Party shall assign, sublet or transfer any interest in this Agreement
without prior written authorization of the other Party.
Section 9.4 Applicable Law Enforcement and Venue
9.4.1 This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas.
9.4.2 This Agreement shall be governed by and construed in accordance with the laws
and court decisions of the State of Texas.
Section.9.5 Exclusive Agreement and Method of Amendment
9.5.1 This document, and all appended documents, constitutes the entire Agreement
between Dell and the City.
9.5.2 This Agreement may only be amended or supplemented by mutual agreement of
the Parties hereto in writing.
5
Section 9.6 Severability
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any provision of this Agreement void shall in no way affect
the validity or enforceability of any other provision of this Agreement. Any void provision shall
be deemed severed from this Agreement, and the balance of this Agreement shall be construed
and enforced as if this Agreement did not contain the particular provision held to be void. The
Parties further agree to amend this Agreement to replace any stricken provision with a valid
provision that comes as close as possible to the intent of the stricken provision. The provisions of
this section shall not prevent this entire Agreement from being void should any provision which
is of the essence of this Agreement be determined void.
Section 9.7 Force Majeure
Neither the City nor Dell shall be deemed in violation of this Agreement if it is prevented
from performing any of its obligations hereunder by reasons of force majeure, which shall
include acts of God, strikes, lockouts, or other industrial disturbances, acts of the public enemy,
orders of any kind from 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, restraint of the government and the people, civil disturbances,
explosions, or other causes not reasonably within the control of the party claiming such inability.
IN WITNESS WHEREOF, the City and Dell have executed this Agreement in duplicate
originals.
DELL USA,L.P.
By: Dell Gen'P. Corp., its general partner
By.
Nar�`e:
Title: YY1CA-VN LG i^
Date: �f -
THE Y ROCK
By:
N yl axwell.
Tit a or
Date: �•
ATTEST: FOR CIT , APPROVED A TO FORM:
By:Nft&ou By:
Christine R. Martinez, City Secretary Ste n . Sheets, City Attorney
6
Exhibit A
List of all Meters to Which Dell Grants the City Access in accordance with this Agreement:
Make-Up Meters:
RR 1-MU
RR2-1 MU
RR2-2MU
RR3-MU
RR5-MU
RR8-MU
Blow-down Meters:
RR1-BD
RR2-1 BD
RR2-2BD
RR3-BD
RR5-BD
RR8-BD
7
Exhibit B
Identification of Make-up and Blow-down Meters by Building Location and Name:
Building 1 401 Dell Way Round Rock Texas 78682
Make-up Meter: RR 1-MU
Blow-down Meter: RR1-BD
Building 2 501 Dell Way Round Rock Texas 78682
Make-up Meters: RR2-1 MU,RR2-2MU
Blow-down Meters: RR2-IBD, RR2-2BD
Building 3 2300 Greenlawn Blvd Round Rock Texas 78682
Make-up Meter:RR3-MU
Blow-down Meter: RR3-BD
Building 5 200 Dell Way Round Rock Texas 78682
Make-up Meter: RR5-MU
Blow Down Meter: RR5-BD
Building 8 2401 Greenlawn Blvd Round Rock Texas 78682
Make-up Meter: RR8-MU
Blow-down Meter: RR8-BD
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Exhibit C
Each month the City shall present Dell with a bill for wastewater services calculated in
the following manner:
• The City shall determine the total monthly average of Make-up water usage (hereinafter
the "Monthly Make-up Average") by totaling the annual usage for each of the Make-up
Meters (as named herein) based on the Historical Data provided by Dell, and then
dividing by 12. The Monthly Make-up Average shall be calculated once annually upon
receipt of the Historical Data collected from the previous twelve-month period. The
Monthly Make-up Average shall represent the monthly amount of Make-up water used
by Dell, expressed in gallons, for purposes of the monthly billing calculation.
• The City shall determine the total monthly average of Blow-down water usage
(hereinafter the "Monthly Blow-down Average") by totaling the annual usage for each of
the Blow-down Meters (as named herein), based on the Historical Data provided by Dell,
and then dividing by 12. The Monthly Blow-down Average shall be calculated once
annually upon receipt of the Historical Data collected from the previous twelve-month
period. The Monthly Blow-down Average shall represent the monthly amount of Blow-
down water used by Dell, expressed in gallons for purposes of the monthly billing
calculation.
• The City shall read the all of the domestic water meters and calculate the number of
gallons of water used for the month(hereinafter the "Total Monthly Water Usage").
• To determine the monthly bill for Dell, each month the City shall apply the following
method:
o Step 1: The Monthly Make-up Water Usage shall be subtracted from the Total
Monthly Water Usage.
o Step 2: The Monthly Blow-down Water Usage shall be added to the difference
between the Total Monthly Water Usage and the Monthly Make-up Water Usage,
as found in Step 1.
o Step 3:The sum of the difference between the Total Monthly Water Usage less
the Total Make-up Water Usage plus the Total Blow-down Water Usage shall
represent the total amount of wastewater, expressed in gallons, discharged by Dell
into the City's wastewater system.
• The City shall charge Dell for the calculated number of gallons of wastewater discharged
into the City's wastewater system in accordance with Section 10.202(1)(a)(i)(2) of the
Code of Ordinances, 1995 Edition, City of Round Rock , Texas, as amended from time to
time.
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