R-2023-120 - 4/27/2023 Resolution No. R-2023-120 TWDB-0201A
Rev 11/16
Application Filing and Authorized Representative Resolution
A RESOLUTION by the City Council of the
City of Round Rock, Texas requesting financial assistance from the Texas Water
Development Board; authorizing the filing of an application for assistance; and making certain findings in
connection therewith.
BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ROUND ROCK, TEXAS
SECTION l: That an application is hereby approved and authorized to be filed with the Texas Water
Development Board seeking financial assistance in an amount not to exceed $901450,000 to provide
for the costs of the BCRUA project,induding construction of the phase ID treatment giant expansion,the Phase 2 raw water delivery system and electrical utility improvements for
Phase 2 raw water pump
SECTION 2: That Laurie Hadley, City Manager be and is hereby
designated the authorized representative of the City of Round Rock, Texas for purposes
of furnishing such information and executing such documents as may be required in connection with the preparation
and filing of such application for financial assistance and the rules of the Texas Water Development Board.
SECTION 3: That the following firms and individuals are hereby authorized and directed to aid and assist
in the preparation and submission of such application and appear on behalf of and represent the
City of Round Rock, Texas before any hearing held by the Texas Water
Development Board on such application,to wit:
Financial Advisor: Garry Kimball
Specialized Public Finance Inc.
Engineer: Aaron Archer
Walker Partners
Bond Counsel: Richard Donoghue
McCall, Parkhurst& Horton L.L.P.
PASSED AND APPROVED,this the 27th day of April,2023.
ATTES By: 0/1
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TWDB-0201 B
Rev IL 16
Application Resolution - Certificate of City Clerk
THE STATE OF TEXAS §
COUNTY OF Williamson and Travis _ §
APPLICANT City of Round Rock §
I,the undersigned,City Clerk of the City of Round Rock _
Texas,DO HEREBY CERTIFY as follows:
1. That on the 27th day of Apri I ,20 23 ,a regular meeting of the
City of Round Rock, Texas was held;the duly constituted members of the
City Council being as follows:
Mayor Craig Morgan;Michelle Ly;Rene Flores(Mayor Pro Tem);Matthew Baker;Frank Ortega;Kristin Stevens;Hilda Montgomery
all of whom were present at the meeting,except the following:
NIA
Among other business considered at the meeting,the attached resolution entitled:
"A RESOLUTION by the City Council of the City of Round Rock,Texas requesting
financial participation from the Texas Water Development Board;authorizing the filing of an application
for financial participation;and making certain findings in connection therewith."
was introduced and submitted to the City Council for passage and adoption. After
presentation and consideration of the resolution,and upon a motion made by Mayor Pro-Tem Rene Flores and
seconded by Council Member Frank Ortega ,the resolution was passed and adopted by the
City Council by the following vote:
7 voted"For" 0--voted"Against" 0 abstained
all as shown in the official minutes of the City Council for this meeting.
2. That the attached resolution is a true and correct copy of the original on file in the official records
of the City of Round Rock,Texas ;the qualified and acting members of the City Council on
the date of this meeting are those persons shown above and,according to the records of my office,advance notice of
the time,place,and purpose of meeting was given to each member of the City Council -_ ;and that the
meeting,and the deliberations of the public business described above,was open to the public and written notice of
the meeting, including the subject of the resolution described above,was posted and given in advance of the meeting
in compliance with the provisions of Chapter 551 of the Texas Government Code.
I WITNESS WHEREOF, I have signed my name and affixed the sea of +
the ,this thee`--+day of (�I 920
D RO
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7` City Clerk
(SEAL) • .r`
TWDB-0201
Rev 2123
Application Affidavit
THE STATE OF TEXAS §
COUNTY OF Williamson and Travis
APPLICANT City of Round Rock §
BEFORE ME,the undersigned,a Notary Public in and for the State of Texas,on this day
personally a eared Laurie Hadley
p y pp as the Authorized Representative of the
City of Round Rock, Texas
who being by me duly sworn,upon oath says that:
1 Th decision h City of Round Rock, Texas .e dec s on byte (authority,city,county,
corporation,district)to request financial assistance from the Texas Water Development Board("TWDB")was
made in a public meeting held in accordance with the Open Meetings Act(Government Code,§551.001,et seq,)
Texas
and after providing such notice as required by such Act as is applicable to the City of Round Rock, (authority,
city,county,corporation,district).
2. The information submitted in the application is true and correct according to my best knowledge and
belief.
3. Th City of Round Rock, Texas
e (authority,city,county,corporation,district)has
no litigation or other proceedings pending or threatened against it that would materially adversely affect its
financial condition or ability to issue debt.
4 Th City of Round Rock, Texas
e (authority,city,county,corporation,district) has no
pending,threatened,or outstanding judgments,orders,fines,penalties,taxes,assessment or other enforcement or
compliance issue of any kind or nature by the Environmental Protection Agency,Texas Commission on
Environmental Quality,Texas Comptroller,Texas Secretary of State,or any other federal,state or local government,
except for the following(if no such outstanding compliance issues,write in"none"):
none
5. The C i ty of Round Rock, Texas (authority,city,county,corporation,district
warrants compliance with the representations made in the application in the event that the TWDB provides the
financial assistance.
6 The City of Round Rock, Texas
(authority,city,county,corporation,district)
is or will become in compliance with all of its material contracts.
City of Round Rock, Texas
7. The (authority,city,county,corporation,district)will
comply with all applicable federal laws,rules,and regulations as well as the laws of this state and the rules and
regulations of the TWDB.
f / .. 1
Official Representative
Title:City Manager
SWORN TO AND SUBSCRIBED BEFORE ME,by //adLeuLetagie ,
on this day of atrial 20
,���111111
(NOTARY'S SEAL) •‘ GAN $p ��ii I'
• <(., '.YP '••., �� Notary Public, P.to of Texas
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WRD-208a
06-23-2016
STATE OF TEXAS §
COUNTY OF Williamson §
SURFACE WATER AFFIDAVIT
Before me the undersigned notary,on this day personally appeared a person
_e1WA ffloiza'w
whose identity is known to me.After I administered an oath to him/her,upon his/her oath
he/she said:
1. I am over 18 years of age,of sound mind,and capable of making this affidavit. The facts stated in
this affidavit are within my personal knowledge and are true and correct.
2. I am an authorized representative of the Cily of Round Rock ,
an entity that has filed an application for financial assistance with the Texas Water Development
Board for a project that proposes the development of a new surface water supply source.
3. Does the applicant possess a Certificate of Adjudication and/or Water Rights Permit(s) issued by
the Texas Commission on Environmental Quality or a predecessor agency authorizing the
appropriation and use of the surface water needed for the Project?
Yes® No❑
Please attach a copy of the Certificate(s)of Adjudication and Water Rights Permit(s).
Item attached: Yes® No❑
4. Does the applicant have the contractual right to use the surface water from an entity that enjoys the
right to appropriate and use the surface water needed for the project?
Yes� No ❑
Please attach a copy of any draft or executed water supply contract,lease or other legal
instrument providing contractual authorization to use the surface water needed for the
Project.
Item attached: Yes® No❑
1
WRD-208a
06-23-2016
Please identify the Certificate of Adjudication(s)and Water Rights Permit(s)possessed by
the wholesale water provider pursuant to which the contract, lease or other legal instrument
has been or will be executed.
Certificate of Adjudications:
Item attached: Yes❑ No
Water Rights Permit(s): See attached.
Item attached: Yes® No ❑
Signed the day of 2r7 ,20
Name:
Title:
Ar AV Mr 07
Sworn to and subscribed before me by elrju., 1611vorly on ry 1.6 gaw r ro
20
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7T .�w,�; Notary Public irandr the State of Texas
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EXHIBIT
f- SYSTEM WATER AVAILABILITY AGREEMENT $ A-I
FOR COLORADO RIVER BASIN NATER
B ETVVEEN
BRAZOS RIVER AUTHORITY
AND
CITY OF ROUND ROCK
AGREEMENT made and entered into this the 9/4) day of 0,,fv 6i6y-
20010
by and between BRAZOS RIVER AUTHORITY ("Authority"), a river
authority of the State of Texas, and CITY OF ROUND ROCK ("Purchaser") of
williamson County, Texas.
I. RECITALS. Authority owns and operates various lakes in the
Brazos River Basin. Authority also has entered into contracts with the United
States of America by virtue of which it has obtained the right to utilize for water
supply purposes a portion of the usable storage space in various lakes owned
and operated by the United States Army Corps of .En ineersAuthority is
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authorized by the State of. Texas to store State waters in the lakes owned by
Authority and various fakes owned and operated by the United States Army
Corps of Engineers in the Brazos river Basin, hereinafter collectively called the
"System", and to make such stored waters available for beneficial use.
_. Authority is authorized to operate the as a System hydrologic unit
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pursuant to an order of the Texas water-Commission (now Texas Natural
Resource Conservation Commission "TNRCC") issued on July 23, 1964 .
("System operation order")_ The Final Determination of All Claims of water
Rights in the Brazos River Basin and the San Jacinto-Brazos Coastal Basin
Maintained by the Brazos River Authorily, Fort Bend Countv WC.I.D. No. 1 and
Galveston Coup Water Authori! ("Final Determination") issued on June 26,
19851 by TNRCC clarified and amplified the System Operation order. under the
System Operation order as adjudicated by the Final Determination, Authority is
authorized to operate the System as a hydrologic unit to more efficiently utilize
the reservoirs that make up the System to make water available to meet the
needs of Authority's customers.
Authority and Purchaser have entered into certain raw water contracts
"tracts
(System water Availability Agreement Between Brazos River Authority And City
of Round Rock - Lake Georgetown and System Water Availability Agreement
Between Brazos River Authority And City of Round Rock --- Lake Stillhouse
Hollow) dated contemporaneously herewith pursuant to which Authority has
agreed to make available a total of 24,854 acre-feet of water per Fiscal Year from
the Sys tem.
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Authority has also acquired the right to divert and use 25,000 acre-feet of
water per year from the Colorado River Basin made available from the Lower
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Colorado River Authority (LCRA) under the Water Sale Contract by and between
Lower Colorado River Authority and Brazos River Authority Purchaser", dated
October 2000 (LORA Contract) pursuant to the terms of Mouse Bill 1437 of the
76u' Texas Legislative Session and codified under Section 27 of the LCRA
Enabling Act. It is from the 25,000 acre-foot of water per year from the Colorado
River Basin ( the "LCRA" Water") that Purchaser now wishes to contract for
Authority to make available 0,944 acre-feet of water per Calendar Year under
the terms and conditions herein provided_
2. DEFINITIONS.
a) The term "Agreement" means this agreement.
b) The terra "Agreement Rates" means the "Agreement Water Rate
the "Agreement Reserved Water Charge, and. the'"Agreernent inverted Block
Rate" for water purchased pursuant to this Agreement as more fully described in
Section b, PRICING STRUCTURE, and in Section 7, UNCONDITIONAL
NATURE OF PAYMENT OBLIGATION; PRICE, below.
c) The term "Area of Lyse" means that certain area in Williamson
County that lies outside of the watershed of the Colorado River, but excludes
those municipalities which were customers of the Lower Colorado River Autho(ity
as of May 20, 1997, and who are located in watersheds of both the Colorado and
Brazos Rivers.
d) The term "Authority shall mean Brazos River Authority.
e) The term "Board" shall mean the Board of Directors of Brazos River
Authority.
The term "Credit for System Rate Recovery' or "CSRRTo means the
credit described in Section T. (c.) of this Agreement.
g) The term `Cost Recovery Fee" or"CRF" means the fee described in
Section 7. (b) (3) of this Agreement.
h) The term "Federal contracts" shall mean those contracts with the
United States of America whereby Authority has acquired, is acquiring, or may
acquire conservation storage capacity in Federal Reservoirs.
r The term "Federal Reservoirs"shall include the following:
Aquilla Dam and Reservoir
Belton Earn and reservoir
Georgetown Dara and Reservoir
Granger Cham and Reservoir
Proctor Dam and Reservoir
Somerville Dam and Reservoir .
Stillhouse Follow Dara and Resew' oir
Whitney Dam and Reservoir
j) The term "Fiscal Year" shall mean Authority's fiscal year from
September 1 through August 31, or such other annual fiscal year period as
Authority may later d6terrnine.
k). The term "highest Lawful Rate" shall mean the max murn rate
which Authority may charge on obligations payable under this Agreement without
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violation of any applicable law or any applicable lawful*regulation of any agency
of the State of Texas or of the United States having jurisdiction of the matter.
1) The term "Industrial Use' shall mean the use of water in processes
designed to convert materials of a lower order of value into forms having greater
usability and commercial value, including commercial feedlot operations,
commercial fish production, and the development of power by means other than
hydroelectric.
gym) The term 'Irrigation Use" shail mean the use of water for the
irrigation of crops, trees, and pastureland, including, but not limited to, golf
courses and parks which do not receive water through a municipal distribution
system.
n) The term "LCRA" means Lower Colorado River Authority_
o) The term "LCRA Contract" means the "Water Sale Contract by and
between Lower Colorado River Authority and Brazos River Authority, Purchaser,
dated October 2000.
p) The term "LCRA Rates" means the LCRA rates and charges for
sale of water for municipal purposes as delineated in Section 11. B. of the LCRA
Contract.
q) The term "LCRA Water" means the 25,000 acre-feet of water per
year purchased by Brazos River Authority from LCRA pursuant to House Bill
1 437 of the 761"Texas Legislative Session.
r) The term "Mining use" shall mean the use of water for ruining
processes including hydraulic use, drilling, washing sand and gravel, and oil field
repress uring.
s) The term "Municipal Use" shall mean the use of potable water
within a community or municipality and its environs for domestic, recreational,
commercial, or industrial purposes or for the watering of golf courses, parks and
parkways.
t) The term "Purchaser" shall mean City of Round Rock.
u) The term "System" shall mean Authority's Water Supply System
and shall include certain of Authority's facilities and properties insofar as they are
related to snaking water available from the System, to wit, as follows: Morris
Sheppard Dam and Possum Kingdon, Reservoir, -DeCordova Bend Dara and
Lake Granbu , Sterling CRobertson Darn and Lake Limestone Authority's
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conservation storage in the Federal Reservoirs and the LCRA Water obtained
pursuant to the LCRA Contract, together with all future extensions,
improvements, enlargements, and additions to and replacements of the System,
and all replacements thereof whether from surface water supplies, groundwater,
or a combination thereof, specifically added to the System by resolution of the
Board: provided that, notwithstanding the foregoing, the terra System shall not
include (i) any of Authority's facilities and properties not specifically included in
the System by the terms of this Agreement or not added by a subsequent
resolution of the Board, and (H) any water supply, Wastewater or other facilities
which have been or are declared not to be a part of the System and which may
be acquired or constructed by Authority with the proceeds from the issuance of
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"Special Facilities Bonds," which are hereby defined as being special revenue
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obligations of Authority which are not secured by or payable from the revenues of
the System but which are secured by and payable solely from special contract
revenues or payments received from any persons or other legal entity or entities
in-connect.ion-wi.th-suciz-special.faciaities.-----
v) The term "Systenn Agreements" means those certain raw water
contracts titled System Water Availability Agreement Between Brazos River
Authority and City of Round Rock -- Lake Georgetown10and "System Water
Availability Agreement Between Brazos River Authority and city of Round Rock—
Lake Stillhouse Hollow", dated contemporaneously with this Agreement herewith.
w) The term "System Operation order:' shall mean that certain order of
the TNRCC or its predecessor dated July 23, 1964, as adjudicated by order of
`
the TNRCC or its predecessor on June 20, 1985, in the Final Determination of all
Claims of Water Rights in the Brazos River Basin and the San Jacinto-Brazos
Coastal Basin Maintained by the Brazos River- Authority, Fort Bend County
W.C.I.D. No. 1 and Galveston County Water Authority.
x) The term "System Rate" or "SR" shall mean the rate per acre-foot
of water established by Authority from time to time under its system-wide pricing
methodology.
y) The term "Total Annual Budgeted System costs" shall mean the
amounts approved by Authority as estimated costs of the System in the annual
budgets adopted by Authority for a given Fiscal Year including, without limitation,
amounts budgeted to meet Annual System Operation and Maintenance
Expenses and Annual Capital Related Costs.
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The term "Total System Billing Units" shall mean the total amount
of water (expressed in acre-feet) determined by Authority under accepted
engineering practice as necessary to be reserved from firm yield produced by
storage in the System to fulfill its commitments for which Authority receives
payment under long term (in excess of five years) water sales contracts with
Purchaser and Authority's other customers; provided, however, such term shall
not include amounts,of water required by appropriate governmental authority to
be reserved in the System for use for bay and estuary purposes, in-stream uses,
or for other similar environmental, public, or other beneficial uses to the extent
Authority is not adequately compensated for any such requirement.
3. . EFFECTIVE DATE. The effective date of this Agreement is
September 1, 2001.
4. AVAILABILITY OF WATER. While. this Agreement remains in
force, Authority agrees to make available to Purchaser an amount of water not to
exceed 6,944 acre-feet of water per Calendar Year under the following
conditions:
a) Notwithstanding anything herein to the contrary, Authority's
obligation to make water available to Purchaser under this Agreement is subject
to, and.#united by, the rights of Authority to obtain the LORA Water pursuant to
the LORA Contract_ Purchaser acknowledges that Purchaser has received a
copy of the LCRA Contract and is familiar with the rights of Authority thereunder,
and the limitations on Authority's rights thereunder to obtain the LORA Water.
b) Authority may interrupt or curtail the water supplied to Purchaser
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under this Agreement to the extent Authority experiences interruption or
curtailment of water supplied to it under the LCRA Contract for any reason.
c) Water supplied under this Agreement shall only be used within the
Area of Use.
d) Purchaser acquires no property fights in the water made available
to it under this Agreement beyond the right to have the water made available to it
for diversion and use under the terms of this Agreement. This right of use
extends to direct reuse (flange to flange) of the water made available under this
Agreement. Purchaser represents, and Authorityrelies on such representation,
that all water to be made available by Authority under this Agreement to
Purchaser shall be used solely for municipal purposes.
5. PRICING STRUCTURE
a) The pricing structure for water rates under this Agreement is
dependent upon the pricing structure of water made available to the Authority
under the LORA Contract unless or until the Authority's System Rate exceeds the
price derived from the formula provided for price calculation in Section. 7, below.
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At such time, the price under this Agreement shall be the Authori 's S stern
Rate.
b) The LCRA Water is provided to Authority under the LCRA Contract
pursuant to the follow-ng pricing structure:
(1) The "Water Rate" for LORA Water is charged for water
diverted and used during a calendar year. The current Water Rate is $105.00
per acre-foot of water per year.
(2) The "Reserved Water Charge" for LCRA Water is charged
for water under contract but not diverted and used during a calendar year. The
Reserved Water Charge is 5Q% of the Water Rate, or currently $52.50 per acre-
foot of water per year.
(3) The "Inverted Block Rate" for LCRA Water is charged for all
water used in excess of the total contractual amount and is currently $200.00 per
acre-foot of water per year.
(4) The "Conservation Charge" for LCRA Water is currently 25%
of the Water Rate, the Reserved Water Charge, or the Inverted Block Rate, as
applicable.
(5) The current "Total LCRA Rates" for LORA Water are as
follows:
(a) The Total LIRA Water Rate" is the Water Rate + the
Conservation Charge, currently$131.25 an acre-foot.
(b) The "Total LORA Reserved Water Charge of is the
Reserved Water Charge + the Conservation Charge, currently $65.63 an acre-
foot.
(c) The "Total LCRA Inverted Block Rate"' is the Inverted
Block Rate + the Conservation Charge, currently bn acre-foo9 y t.
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r d) The Authority makes water available to Purchaser
under this Agreement pursuant to the following pricing structure:
(1) The "Agreement Reserved Water Charge„ for
all water agreed to be made available under this Agreement whether or not it is
diverted and used during a calendar year. The current Agreement Reserved
Water Charge is $49.22 per acre-foot of water per year, the calculation for which
is set out in Section 7.c., below.
(2) The "Agreement Water Rate" for only water
that is diverted and used during a calendar year. The Agreement water Rate
equals the Agreement Reserved water charge and is in addition to the
Agreement Reserved Water Charge.
3) The "Agreement Inverted Block Rate' for water
used in excess of the amount agreed to be made available under this
Agreement. The Agreement Inverted Block Rate equals the Total LCRA Inverted
Block Rate.
X. DATE AND PLACE OF PAYMENTS.
a) Payments to be made hereunder shall be- made at
Autho;�y's office in Waco, McLennan County, Texas. Authority contemplates
that by. September I of each Fiscal Year it will have adopted budgets for
Authority for said Fiscal Year and established the System Rate acid the
Agreement Rates for said Fiscal Year. Payments for each Fiscal Year may be
made.under one of three payment options from which Purchaser will select at the
beginning of each Fiscal Year. The payment due at the beginning of each Fiscal
Year will be for the water agreed to be provided during the next calendar year,
and sell be based on the Agreement Reserved water charge. -:,Annual
payments for water provided at the Agreement Reserved water charge shall be
made on.or before September 15 each Fiscal Year_ Quarterly payments shall be
made on or before September 15, December 15, March 15, and June 15 each
Fiscal Year. Monthly payments shall be made on or before the fifteenth of each
month each Fiscal Year. Quarterly payments or monthly payments shall include
a multiplier to be. applied to the annual payment to allow Authority to recover
interest lost on any unpaid balance plus a service charge for administrative costs,
including but not limited to costs involving the billing, accounting* and collecting
for the quarterly or monthly payments. The multiplier to recover lost interest
revenue and the service charge for administrative costs shall be determined on
an annual basis and shall be just and reasonable. If the effective date of this
Agreement is other than January 1, the amount of water available to Purchaser
and the payment owed by Purchaser will be prorated for the remaining months of
the calendar Year, 2001.
b) The charge for any water actually diverted and used during
the next calendar year will be billed to Purchaser on a monthly basis based on
actual diversion and usage for the previous month at the Agreement Water Rate.
c) Purchaser may elect to defer payment of its obligations for
water purchased pursuant to Agreement reserved Water Charges by providing
Authority notice of such election in writing within 60 days from the date of
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~- execution of this Agreement. In no instance shall the deferral terms extend
beyond the initial ten years of this Agreement.
If Purchaser selects deferred payment, the following structure will be used:
(1) Years 1-2; Purchaser will receive a credit of 50% of the
Agreement Reserved Water Charge.
(2) Years 3A; Purchaser will receive a credit of 25/0 of the
Agreement Reserved water Charge,
(3) Years 5-5; Purchaser will receive no deferral of the
Agreement Reserved water Charge.
(4) Year 7; Purchaser will pay 125% of the Agreement Reserved
Water Charge.
(5) Years 8-9; Purchaser will pay 150% of the Agreement
Reserved water Charge.
(0) Year 10; Purchaser will pay the remaining outstanding
deferred balance plus 100% of the current yea's Agreement Reserved water
Charge.
Notwithstanding anything herein to the contrary, in the event the differed
payments calculation yields a rate that is less than the then current Authority
ty
System Rate, the full Systern Rate will be the rate charged for that Fiscal Year's
payment.
Unpaid balances will- accumulate interest based on actual Authority
interest rates earned on the Authority's investments. The Authority's interest rate
will be the Authority's average annual portfolio yield plus 0_5 percent per annum
for administrative costs. Interest charges will be assessed on an annual basis
using simple interest, compounded annually.
7. UNCONDITIONAL NATURE OF PAYMENT OBLIGATION;
FRIG.
a) Purchaser unconditionally agrees to pay Authority in
accordance with the terms of this Agreement for the water agreed to be made
available to Purchaser from the LCRA Water pursuant to this Agreement.
b) The Agreement Rates are derived using the following
components:
(1) The Authority's System Rate (currently $26.00per
acre-foot of water per year).
(2) The Total LCRA Water Rate, Total LCRA Reserved
Water Charge, or Total LCRA inverted Block Rate (as defined in Section 5.b.(5),
above).
(3) The "Cost Recovery Fee" (the applicable Total LCRA
Rate minus the Authority's System Rate minus the Credit for System Rate
Recovery).
c) The "Credit for System Rate Recovery C it a 25% discount
from the Total LORA Water Rate or the Total LORA Reserved Water Rate, but
not from the Total LCRA Inverted Block Rate).The Agreement Reserved Water
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Charge (ARWC) is the System Rate plus the Cost Recovery Fee. Using current
components: the Agreement Reserved Water Charge is derived as follows:
ARWC = SR + CRF
ARWC = $26.00 + (Total LORA Reserved Water Charge -- SR
-- CSRR)
ARWC = $26.00 + ($65.63 - $26.00--$16.41)
ARWC = $26.00 + $23.22
ARWC = $49.22
d) The Agreement Water Rate is equal to the Agreement
Reserved Water Charger currently $49.22, and is in addition to the Agreement
Reserved Water Charge.
e) The Agreement Inverted Block Rafe is equal to the Total
LCRA Inverted Block Rate, currently $250.00.
0 Authority may, and it specifically reserves the right to, revise
the Agreement Rates from time to time (usually prior to the start of each Fiscal
Year) to reflect changes in the System Rate and the LORA Rates. Authority shall
not increase the Agreement Rates other than on a Fiscal Year basis except for
unforeseeable reasons of a serious and substantial nature. Such reasons
include Force Majeure, government legislation or regulation,9 g permit
requirements, or changes in the LCRA Rates.
g) Notwithstanding anything herein to the contrary, in the event
the Agreement Rates calculation yields a rate that is less than the then current
Authority System Rate, the System Rate will be the Agreement Rates_
8. SOURCE OF PAYMENTS. The payments to be made hereunder
by Purchaser shall constitute operating expenses of Purchaser's water works
system or Purchaser's combined water works and sewer system. Purchaser
shall charge rates for.services of its water works system or its combined water
works and sewer systems that will be sufficient to pay the operating and
maintenance expenses thereof, including the payments provided for hereunder,
and the interest on and principal of, as the same come due and mature
obligations issued by Purchaser now or hereafter payable from the revenues of
said system or systems.
9. INTEREST ON PAST DUE PAYMENT; COLLECTION. 1n the
event of failure of Purchaser to make any payment to Authority provided to be
made in this Agreement at the time when same shall be due, the past due
.
payment shall bear interest at the lesser of the highest rate allowed by applicable
law or 18 percent per year. Regardless of any other provision contained in this
Agreement, Authority shall never be entitled to receive, collect, oraRp Y l as
interest under this Agreement any amount of money determined at a rate which
exceeds the Highest Lawful Rate. If Authority ever charges, receives, collects or
applies as interest an amount in excess of that permitted by application lication of the
Highest Lawful Rate, then any such amount which would be excessive interest
shall be deemed a partial prepayment of amounts payable under this Agreement
which do not constitute interest and shall be treated hereunder as such; and if all
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other obligations payable under this Agreement shall have been paid in full then
Authors shall refund the amount# of such excessive interest.
10. REMEDIES FOR NONPAYMENT OR
DEFAULT. Should
Purchaser fait to make any payment to Authority when due hereunder
or
otherwise be in default under this Agreement, Authorityat its sale option a '
p and to
addition to and without impairing any other remedy available to it on account of
the default, may elect to either (i) suspend its duty to make available water
Purchaser under this Agreement or (ii) terminate this Agreement, b providing
g y p tng
written notice of such suspension or termination delivered to Purchaser on or
before 30 days before the date specified in said notice of SLIs ension o
P r
termination, provided that the nonpayment or other default with respect to which
notice of suspension or termination of this Agreement has beeniven shall not
#
be cured by the date specified in such notice. Nothing 9 in this Agreement shall be
construed in any manner so as to abridge, limit, or deprive either �Y a hereunto
P
of any means which it would otherwise have of enforcingright or remedy
any g y
either in taw or in equity for breach of ars of the provisions hereof-
11.
ereo
Y p f_
1 1. REMEDIES FOR OVERUSE. Purchaser recognizes that an
diversion • g � :y
of water in excess of its contractual amount may impact Authority's
. . ty
ability to make available water to Authority's other raw water customers.
Purchaser agrees that if for any reason it needs to exceed the contractual annual
amount of water to be made available to it under this Agreement, Purchaser will
�
give written notice to Authority 3g days in advance of the need fc�,...__ Y r such additional
water and in such notice will state the reason for the additional need, the amount
of water needed to be made available, and the duration of the need. Authority, in
its sole discretion, may make all or a portion of the requested water available.
Should Authority determine that it can make all orap ortion of the
requested treater available without adversely impacting its ability to make water
available to its other customers, Purchaser agrees topay a for such water to be
made available in advance at a .rate that is equal to the then current Agreement
Inverted Slack Rate.
Should Purchaser fail to notify Authority of its need for additional water to
be made available, and exceed the contractual annual amount of water to be
made available to it, or should Purchaser, after notification of Authority and
Authority's determination that additional water is not available for Purchaser's
use, nonetheless exceed the contractual amount of water to be made available to
it, Authority may cancel this Agreement by providing writen notice ce of such
cancellation delivered to Purchaser on or before thirty 30days before the date
specified to said notice of cancellation.
Nothing in this Agreement shall be construed in an manner so as to
abridge, y
limit, or deprive either party hereunto of any means which it would
9
otherwise have of enforcing any right or remedy either in laver or in equity for
breach of any of the provisions hereof.
12. FACILITIES. All new facilities that are located in the Area of Use
that are used to transport raw water that is purchased pursuant to this Agreement
exclusively may be owned and operated by LCRA, at its sole option. All new
facilities or all substantial expansions to facilities that are located in the Area of
Use #hat treat water or transport treated water that is purchased pursuant to this
Agreement and that are constructed by BRA or LCRA shall be Brazos--Colorado
' � such
projects. The LCRA may own, at its sole option, a portion of any S
facilities that is commensurate with the percentage that LORA water (Le., water
supplied under the LCRA Contract) bears to the total amount of water supplied
by BRA and LCRA for treatment or transportation by such facilities. For
example, if twenty-five percent (25%) of the water used at an Alliance facility is
supplied by LCRA under the LORA Contract, the LCRA may own twenty-five
(25%) percent of that facility_ All such facilities in the Area of Use, however, shall
be operated by BRA.
All new facilities and all substantial expansions to facilities that are located
in the Area of Use that treat or transport treated water purchased pursuant to this
Agreement that are constructed by Purchaser may be owned and/or operated by
Purchaser if such ownership and/or operation is desired by Purchaser.
Purchaser acknowledges that the economics of scale and efficiencies of t
use made possible by regionalization of water treatment facilities are highly
desirable_ Purchaser, therefore, agrees to negotiate in good faith with BRA and
LCRA to maximize the potential for regionalization of water treatment and
transportation facilities, either new facilities or'substantial expansion of facilities,
located in the Area of Use used to treat or transport water that is purchased
pursuant to this Agreement.
13. METERING. Purchaser agrees that, at its sole cost and expense, it
shall install, operate and maintain meters for the accurate measuring of all water
diverted b Purchaser under this Agreement in order to aid Authority in
Y
accurately reporting actual water usage to the TNRCC as required by applicable
law or regulation. Such meter or meters shall' be tested and calibrated for
accuracy by and at the expense of Purchaser once each fiscal year at intervals-of
approximately 12 months, and a report of such test and calibration shall be
furnished to Authority. Authority shall be given at least two prior days notice of
the time of any test and calibration of Purchasers meters, or any of there, and
Authority shall have the right to have a representative present at each test to
observe the test and any adjustments found thereby to be necessary. Authority
shall have the right to inspect and check the accuracy of Purchaser's meter or
meters at any time during usual business hours after not less than one nor more
than five (5) days notice. In the event any question arises at any time as to the
10
' r
accuracy of any such meter, such meter shall be tested promptly upon demand
: of Authority, the expense of such test to be borne by Authority if the meter is
found to be correct and by Purchaser if it is found to be incorrect. Readings
within 2% of accuracy, plus or minus, shall be considered correct. If, as a result
of any test, any meter is found to be registering inaccurately (i.e., in excess of 2%
of accuracy, plus r u
p s o minus), the readings of such meter shall be corrected at the
rate of its inaccuracy for any period which is definitely known and agreed upon,
but in case the period is not definitely known and agreed upon, then the shorter
of the following periods shall be used as the basis for correction=
a) a period extending back either 60 days from the date of demand for
the test or, if no demand for the test was made, 60 days from the date of the test;
or
b) a period extending back half of the time elapsed since the last
previous test;
and the records of readings shall be adjusted accordingly. Following each test of
a meter, Purchaser shall cause the same to be calibrated to register accurately.
14_ REPORTING. Purchaser agrees that it will keep accurate records
of the daily readings from the meter or meters installed pursuant to Section 1 3.,
Metering, above_ These records shall be subject to inspection by Authority at
reasonable times and places. Purchaser shall submit reports to Authority by the
10th day of each month showing the amount of water diverted under this
Agreement each day during the preceding month.
15. SYSTEM AGREEMENT. This Agreement does not affect the rights
and obligations of Authority and Purchaser under the System Agreements.
16. CONSERVATION OF WATER. It is the intent of the parties to this
Agreement to provide to the maximum extent practicable for the conservation of
water, and Purchaser agrees that it is a condition of this Agreement that it small
maintain and operate its facilities in a manner that will prevent unnecessary
waste of water. Authority, in accordance with applicable law or regulation, may
from time to time adopt reasonable rules and regulations relating to water
conservation. Purchaser agrees to abide by the "Brazos River Authority Drought
ht
Contingency Policy" adopted by the Board on January 16, 1989, or any
subsequent Drought Contingency Policy duly adopted by the Board and any
{ Drought Contingency Plans developed under the Drought Contingency Policy. if
required by applicable law or regulation or by Authority, Purchaser agrees to
implement a water conservation and drought management program in
accordance with a water conservation plan and that the water made available
and diverted by Purchaser pursuant to this Agreement will be used in accordance
with such conservation plan, and with the regulations of the Texas Natural
Resource Conservation Commission (or other appropriate regulating authority)
applicable to retail public utilities. Purchaser further agrees to make available its
water conservation and drought contingency programs to Authority and LCRA for
t�
PON
rt
review. If re �
required by applicable law or regulation Purchaser agrees that, in the
event Purchaser furnishes water or water services to a third party that in turn will
furnish the water or services to the ultimate consumer, the requirements relative
to water conservation small be met through contractual agreements between
Purchaser and the third party providing for the establishment and implementation
of a water conservation program in compliance with such applicable law or
regulation.
If Purchaser fails to comply with its water conservation plan, Authority
mays at its sole option terminate this Agreement without recourse unless such
default is cured within thirty (30) or, if the nature of such default is not susceptible
to being cured within such thirty (30) day period, such longer period of time
during 'Which Purchaser diligently prosecutes the cure of such default, not to
exceed ninety (90) days of Purchasers receipt of written notice of such default.
17. WATER QUALITY. As a further condition of this Agreement,
Purchaser also agrees that it will comply with applicable water quality standards
of the State in the diversion, use, reuse, or discharge of water made available
hereunder. Should Purchaser be determined by any competent legal authority to
have degraded the quality of water of the State or to have violated any water
quality standard established by law or lawfully adopted regulation, and
subsequently fail to take action with reasonable diligence to correct such
deficiency as directed by competent legal authority, such failure shall constitute
an event of default under this Agreement.
Authority, in accordance with applicable law or regulation, may from time
to time adopt reasonable rules and regulations relating to water quality
_
_ q fY
protection. if required by applicable law or regulation or by Authority, Purchaser
agrees to implement appropriate water quality protection measures including,
without limitation, a non-point source water pollution abatement program in
accordance .
with a non--pont source water pollution abatementP Ian.
18. WATER SURPLUS To PURCHASER'S NEEDS. Purchaser-may
not unilaterally cancel this Agreement or reduce the amounts of water agreed to
be made available to it and for which availability it is obligated to pay under the
terms of Sections 4. and 7., above, except as provided in section 20, below.
Purchaser may not sell or make available to others the water agreed to be made
available to it under this Agreement, except in.the case of municipal uses, as
potable treated water. However, should '
P ' h ld Purchaser determine that ,t has water
surplus to its anticipated needs from the water to be made available by Authority
under this Agreement, Purchaser may not'
fy Authority as to the amount of water
no longer needed to be made available to it. Authority will use reasonable efforts
to find a third party who is able and willing to pa for such availability for period
Y tY
to the end of this Agreement. If Authority is successful in finding such a third
party suitable to it to acquire Purchaser's interest in its available surplus for a
period of time to the end of this Agreement, this Agreement will be amended to
12
reduce the amount of water to be made available to Purchaser by the amount of
availability paid for by such third party, and Purchaser will be relieved of the
obligation to make payments for such availability of water.
19. SHORTAGES. Authority makes no guarantee that any lakes or
other sources of supply in the Colorado River Basin will be maintained at any
specific level at any particular time. Purchaser bears all transportation losses
prior to final diversion. It is fully understood by the parties hereto that the level of
lakes or other sources of supply in the Colorado River Basin will vary as a result
of weather conditions beyond the control of Authority, and that this instrument is
merely an agreement to require Authority to make available water when and if
water is available to Authority under the Authority's LCRA Contract, and to allow
Purchaser to make withdrawals of the water subject to the general law on
distribution and allocation of water during shortages of supply.
Authority covenants that it will use its best reasonable efforts to maintain
and preserve its rights under the LCRA Contract. If for an reason the availability
ty
of water to Authority under the LCRA Contract is restricted, impaired, or
otherwise limited, Authority agrees, and Purchaser covenants, that Authority may
fairly and equitably apportion and ration the available water supply from the
LORA Contract among all its several customers receiving water from Authority as
a result of the LCRA Contract, including Purchaser.
20. FORCE MAJEURE. Notwithstanding .
anything herein to the
contrary, neither party hereto shall be under any liability or be deemed in default
with respect to its obligations under this Agreement for any failure to perform or
for delay in performing such party's obligations hereunder (except for the
obligation to pay money) where such failure or delay is due to force majeure,
while and to the extent that such performance is prevented by such cause. The
term force majeure means acts of God: fire, storm, flood, war, riots, sabotage,
drought, lack of availability of water due to sedimentation, low inflows of water to,
or lack of water supply in the System or from the Colorado River basin to be
made available under the LCRA Contract, strikes or other differences with labor
(whether or riot within the power of the parties to settle same), decrees or orders
of the courts or other governmental authority, or other similar or dissimilar causes
not within the reasonable control of such party and not due to negligence of such
party. Each party shall use due diligence to resume performance of any
obligation suspended by force majeure at the earliest practicable time.
21. WAIVER. Any waiver at any time by any PartYof its rights with
respect to default under this Agreement shall not be deemed a waiver of such
rights with respect to any subsequent default or matter.
22- NOTICES AND CERTIFICATIONS. Notices and certifications
provided for in this Agreement shall be in writing. The same shall be delivered by
13
' ma ilin certified mail, postage paid, return receipt requested, to the respective
9
parties at the following addresses:
Authority: Brazos River Authority
P.0. Box 7555
Waco, Texas 76714-7555
Telephone: (254) 778-14-41
Fax: (254) 772-5780
Purchaser: City of Round Rock
221 East Main Street
Round Rock, Texas 78604
Telephone: (512) 218-5400
Fax: (5'12) 218--7097
Either party may change its address as shown above by written notice to
the other party. Notices shall be deemed to have been delivered on the business
day following their deposit in the United States mail, postage paid, and properly
addressed and certified. _.. .._
23. OTHER REQUIREMENTS. This Agreement is subj
^.,..w
Authority and Purchaser agree to negotiate in good faith regarding terms for
extension or renewal of this Agreement.
If purchaser is current on all payments due Authority under this
Agreement, Purchaser may terminate this contract, in whole or in part, on
February 15 of any year following the expiration of ten (10) years measured from
the Effective Date by providing six (6) months prior written notice to Authority,
that is by August 15 of the year preceding the February 15 termination date.
This Agreement shall be null and void in the event that the interbasin
transfer permit referenced in Section 3, above, is not issued by the TNRCC
within the two (2) years of the date of filing of the application for said interbasin
transfer permit.
CITY of ROUND ROCK E3RAZOS RIVER AUTHORITY
E By:
.Wa e: JWO ' PhillipJ. Ford
i �
Title: General Manager
"ATI-EST: ATTEST:
JIM 0
Iq W (2 - - Assistant Secretary
wtirorffieldVourocks waacolriv&bra ff3.doc
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EXHIBIT
b
A
SYSTEM WATER AVAILABILITY AGREEMENT "A-2
FOR COLORADO RIVER BASIN WATER
BETWEEN
BRAZOS RIVER AUTHORITY
AND
CITY OF ROUND ROCK
-01
AGREEMENT made and entered into this the .0 - daY of
2002-, by and between BRAZOS RIVER AUTHORITY ("Authority"), a liver authority of
the State of Texas, and CITY of ROUND ROCK ("Purchaser'') of Williamson County,
Texas.
1, RECITALS. Authority owns 'and operates various lakes in the Brazos
River Basin. Authority also has entered into contracts with the united States of Arnerlca
by virtue of which it has obtained the right to utilize for water supply Purposes a portion
of the usable storage space in various lakes owned and operated by the United States
Army Corps of Engineers. Authority is authorized by the State of Texas to store State
waters in the lakes'owned by Authority and various lakes owned and operated by the
United states Army Cons of Engineers in the Brazos Rinner Basin, hereinafter collectively
called the "System"'. and to make such stored waters available fcr beneficial use.
Authority is authorized to operate the System as a hydrologic unit pursuant to an
order of the Texas Water Commission (now Texas Natural Resource Conservation
Commission "THRCC") issued on July 23, 196q ("System Operation Order"),, The Heal
Deter (nation of All Claim s of Water Rights in the Bra os River., Basin and the Sa
Jacinto-Brazos Coastal gpjsLa-Maintained by the Brazos River Authority, Fort Bend
County KCI D, No. 1 and Galvin County water Authority ("Final Determination'')
issued on ,June 26, 1985, by TNRCC clarified and amplified the System Operation [order.
Ander the System Operation order as adjudicated by the Fina! Determination, Authority
Is authorized to operate the System as a hydrologic unit to more efficiently utilize the
reservoirs that make up the System to make water available to meet the needs of
Authority's customers.
Authority and Purchaser have entered into certain raw water contracts (System
Water Availability Agreement Between Brazos River Authority And City of Round Rock -
Lake Georgetown And System Water Availability Agreement Between Brazos River
Authority And City of Round Rock - Lake Stillhouse Hollow).
Authority has also acquired the right to divert and use 25,000 acre-feet of water
per year from the Colorado River Basin made available from the Lower Colorado River
Authority (LCRA) under the ''water Sale Contract by and between Lower Colorado River
Authority and Brazos River Authority Purchaser", dared October 2000 (LCRA Contract)
pursuant to the terms of House Bill 1,437 of the 76th Texas Legislative Session and
codified under Section 27 of the LCRA Enabling Act. It is from the 25,000 acre-foot of
r
Pu
rC)J
1 ��
� r
09/06/2002 FRI 15: 56 [TX/]?X NO .95701 Q003
water per year from the Colorado River aasin (the "L.CRA Dater") that Purr-haser now
wishes to contract for Authority to make available 4,500 acre~-feet of water per Calendar
Year under the terms and conditions herein prodded.
Z DEFINITIONS.
a) The Terre "Agreement" means this agreement.
b) The Term "Agreement Rates" means the "Agreement Water Rate", the
"Agreement Reserved Water Charge", and the "Agreement Inverted Block Rate's for
water purchased pursuant to this Agreement as more fully described in Section 5,
PRIG STRUCTIJRE, and in Section 7, UNCDNDMONAL NATURE OF PAYMENT
OBLIGATION; pFUCE, below.
c) The term"Area of Use" means that certBln area in Williamson County that
lies outside of the watershed of the Colorado River, but excludes hose rnunidpalibes
which were customers of the Lower Colorado River Authority as of May 20, 1997, and
who are located in watersheds of both the Colorado and Brazos Rivers.
d) `The term "Authority'shall mean Bra20S River Authority.
e) The term "Board'' shall mean the Board of Directors of Brazos Rimer
Authority.
f) -The term "Credit for System Rate Recovery" of "CSRR" means the credit
described In Secdon 7. (c) of this Agreement. .
g) The terra "Cast Recovery Fee'' or "CRF'' means the fee described in
Section 7.(b) (3) of this Agreement.
h) The Terre "Federal Contract's" shall mean those contracts with the united
Sates of America whereby ALithority has acquired, is acquiring, or may acquire
conservation storage cap9dty in Federal Reservoirs.
i) The term 'Federal Reservoirs" shah include the following;
Aquilla Dam and Reservoir .
Belton Dam and reservoir
Georgetown Darn and Reservoir
Granger Dam and ReservoSr -
Proctor Dani and Reservoir
Somerville Darn and Reservoir
Stillhouse Hollow Dam and Reservoir
Whib)ey Dam and Reservoir
j) the term "Fiscal Year" shall mean Authority's fiscal year from September
1 through August 31, or such other annual fiscal year period as Authority may later
determine.
k) The terra "Highest Lawful Rate" shall mean the maximum rate which
Authority may charge on obligations payable.under this Agreement without violation of
any applicable law or any applicable lawful regulatlon of any agency of the State of
Texas or of the United States having jurisdiction of the matter.
l) The term "Indusbial Use" shall mean the- use of water in processes `
designed to convert materials of a lower order of value into forms having greater
usability and commercial value, including cornmerdal feddlot operations, commercial nsh
production,and the development of poorer by means ether than hydroelectric.
m) The term "Irrigation Use" shall mean the use of water for the irrigation of
caps, bees, and pastureland, induding, but not limited for golf courses and parks which
do not Teceive water through a municipal distibution system.
09/0612002 FRI 15:50 IT,Ni:JUX NO 95701 0004
n) The term "LCRA" means Lower Colorado River Authority.
a}
The term "LCRA Contract" means the "Water Sale Contract by and
$
between Lower Colorado River Authority and Brazos River Authotity, Purchaser" dated
October 2000.
R)
The term "LORA Rates" means the LCRA rates and charges for sale of water for municipal purposes as delineated In Section 11. S. of the LCRA Contract.
q} The term "LCRA water means the 25,000 acre-feet of water per year
of the 7eurchased b Brazos River Authority from LCRA pursuant to louse Br11 1437
P Y
Texas Legislative Session.
r) The term "Mining User shall mean the use of water for raining processes
includinghydraulic Use, drilling, washing sand and gravel, and oil Meld repressudng
Y .
S) The terns "Municipal lase" shall mean the use of potable weer within a
community or municipality and Its environs for domestic, recreational, commercial, or
p
Industrial purposes or for the watering of golf courses, parks and parkways.
t) The term "Purchaser shall mean city of Round Rode.
u} The term "System" shall mean Authority's wafter Supply System and shall
include certain of Authority's faclll#es and properties Insofar as they are related to
making water.available from the System, to wit, as follows: Morris Sheppard Dani and
Possum Kingdom Reservoir, aeoordova Bend Darn and Lake Cranbury, Sterling C
Robertson Z. -am and Lake Limestone, Authority's conservation storage in the f=ederal
Reservoirs-And LCRA Water'obtalned pursuant tri the LCRA contract, together w46.all
future extensions, improvements, enlargements, and additions to and replacements of
the System, and all replacements thereof whether from surface water supplies,
groundwater, or a combination thereof, specifically added to the System by resolution of
the Board; *provided that, notwithstanding the foregoing, the term Systern shall not
r include (1) any of Authority's facilities and properties not specifically Included in the
System, by the terms of this Agreement or not added by the subsequent resolution of
the board, and (il) any water supply, wastewater or other facilities which have been or
are declared not to be a part of the system and which may be acquired or constructed
by Authority with the proceeds from the issuance of 'Special Facilities Bonds," which are
hereby defined as being special revenue obligations of Authority which are not secured
by or payable from the revenues of the System but which are secured by and payable
solely from special contract revenues or payments received from any persons or other
legal entity or entities in connection with such special facilities,
V) The terra "System Agreements" means those certain raw water contracts
titled "System water Availability Agreement Between Brazos River Authority and city of
Round Rock - Labe Georgetown" and "Sysbem water Availability Agreement Between
Brazos Diver Authority and City of Round Rock -- Lake SdIlhouse Hollow'', dated
contemporaneously with this Agreement herewith.
w} The term "System operation order" shall rnean that certain order of
l NRCC or its predecessor dated July 23, 1964, as adjudicated by order of the`NRCC or
ItsR redecessor on lune 2b, x.985, in the Final Determinalio o all Claims of ovate
Rights In the Brazos River Basin and-th -d-SJacinto-Brazos Coastal Basin Maintalne-d_by
the araxos Diver Auto iso fiend Cour 1N,C, .D, No. 1 and„GalvestoniCou,Bty
water Author t
w
a
09/06/2002 FRI 15:50 iTX/RX NO 95701 11005
x} The term "System Rate'' or "SR" shall mean the rate per acre-foot of
y
water established bY Authority frorn time to time under its system-wide pricing
methodology.
The term 'Total Annual Budgeted System Costs" shall mean the amounts
Y3 d adopted
approved by Authority as estimated costs of the System in the annual budgets P
RP
by Authority for a given discal Year including, without llmitation, amounts budgeted to
meet Annual System Operation and Maintenance Expenses and Annual Capital Related
rn y
Costs.
z The term "Total System Pilling Units" shall mean the total amount of
water (expressed ressed Ire acre-feet) determined by Authority under accepted engineering
practice as necessary to be reserved from firm yield produced by storage in the System
to fulfill its commitments for which Authority receives payment under long term (in
excess of five years) grater sales contracts with Purchaser and Authorlty's other
customers; provided, however, such term shall not Include arnounts of water required
by appropriate governmental authority to be reserved in the System for us for bay and
estuary purposes, in-stream uses, or far other similar environmental, public, or other
beneficial uses to die extent Authority is not adequately compensated for any such
requirement.
3, EFFECTIVE ]ATE. The effective date of this Agreement Is
September 1, 2002.
4, AVAILABILITY OF WATER. while this Agreement remains in farce,
Authority agrees to make available to Purchaser an amount of water not to exceed
4,500 acre-feet of water per Calendar Year ander the following conditions:
a) NotWithstanding anything herein to the contrary, Authority's obligation to
make water available to Purchaser under this Agreement is subject to, and limited by,
the rights of Authority to obtain the LORA water pursuant to the LCRA Contract.
Purchaser acknowledges that Purchaser has received a copy of the LCRA Contract and Is
familiar with the rights of Authority thereunder, and the limitations on Authority's rights
thereunder to obtain the LCRA water.
b) .Authority may interrupt or curtail the wafter supplied to Purchaser under
this Agreement to the extent Authority experiences interrupdon or curtailment of water
supplied Wit under the LCRA Contract for any reason.
c) Water supplied under this Agreement shall only be used withln the Area
of ase.
d) Purchaser acquires no property rights in the water made available to it
under this Agreement beyond the right to have the water made available to it for
diversion-arid use under the terms of this Agreement. This right of use extends to direct
reuse (flange to Mange) of the water made available under this Agreement. Purchaser
represents, and Authority relies on such representation, that all water to be made
avallable by Authority under this Agreement to Purchaser shall be used solely for
municipal purposes.
09/06/2a02 FRI 1.5:50 ITT/RX NO 95701 1@006
y
5, PRICING STRUCTURE URE
. structure. for water rates under this Agreement is dependent
a} The pricing stru
�{ .
upon the pricing ci structure of water made available to the Authority under the LORA
the Authority's System Rate exceeds the price denied fmrn the
Contract unless or until h tY' Y� de
formula provided for rice calculation in Section 7, below. At such time, the pace under
form p p
this Agreement shall be the Authority's system Rate.
The LORA Water is provided to Authority under the LCRA Contract
b}
pursuant to the fallowing pricing structure:
The "Mater Rate" for LORA Water is charged for water diverted
(1) f�a of of
and used duan a calendar year. The +current Water Rate is $105.00 per acre-
9
water per year.
The "Reserved Water Charge'' for LORA Water is charged for
(2) Reserved
water under contract but not diverted and used during a calendar year. The Res
Water Charge a is 50% of the Water Rata, or currently $52.5o per acrerfoot of water per
_
year. .
(3) The "Inverted Block Rate" for LORA Dater is charged for all water used in excess of the total contractual amount and is currently $200.00 per acre-foot of
grater per year.
(4) The "Conservation Charge„ for LORA Water is current#y 2-S% of
the Water Rate the Deserved plater Charge, or the Inverted 131ock Rate, as applicable.
7he current"Total LORA Rates"for LCRA Water are as follows:
(5)
(a) The ='Total LORA Water Rate" is the Water Rate + the
Conservation Charge, currently $131.25 ars acre-foot.
}b) The "Total LYCRA Reserved Water Charge" is the Reserved
Water Charge + the Conservation Charge, currently $65.53 an acre-foot.
r (c) The "Total LCRA Inverted Bloch Rate" is the Inverted Block
Rate + the Conservation Charge, currently $250.00 ars acre-foot.
(d) -rhe Authority makes water available to Purchaser under
this Agreement pursuant to the following pricing structure:
(1) The "Agreement Reserved Water Charge" for all
water agreed to be made available under this Agreement whether or not it is diverted an
used during a calendar year. The current Agreement Reserved Water Charge is $49.22
per acro-foot of water per year, the calculation for which is set out in section 7.c.,
below.
{2} The "Agreement Water Rate" for only water that is _
diverted and used durin a calendar year. The Agreement Mater Rate equals the
9
Agreement Reserved Water Charge and is in addition to the Agreement Reseed dater
Charge.
(3) The "Agreement Inverted Block Rate" for water
used in excess of the amount agreed to be made available under this Agreement, The
Agreement Inverted Block Rate Equals the Total LORA Inverted Block Rate.
6. DATE AND PLACE OF PAYMENTS
a Payments to be made hereunder shall be made at Authorlty"s
} y - be
office in Waco, McLennan County, Texas. Authority contemplates that by September x
of each Fiscai Year it will have adopted budgets for Authority for said Fiscal Year and
established the Systern Rate and the Agreement Rates for said Fiscal Year. Payments
for each rascal Year may be made under one of three payment options from which
09/06l2002) FRI 15:50 17' /lU N0 95-101 Q. oo7
I
Purchaser will select at the beginning of each Fiscal Year. The payment due at the
beginning of each Fiscal Year will be for the water agreed to be provided during the next
calendar year, and shall be based on the Agreement Reserved water Charge, Annual
payments for water provided at the Agreement Reserved Water Charge shall be made
on or before September 15 each Fiscal Year. Quarterly payments shall be made on or
before September 15, December 15, March 15, and June 15 each f=iscal Year. Monthly
payments shall be made on of before the lllteenth of each month each Fiscal Year.
Quarterly payments or monthly payments shall lndude a multiplier to be applied to the
annual payment to allow Authority to recover interest lost on any unpaid balance plus a
service charge fivr adrninis tive cosi, inrJuding but not limited ba cosh invoMng the
billing, accounting, and collecting far the quarterly or monthly payments. The multiplier
to recover lost interest revenue and the service charge for administrative costs shall be
determined an an annual basis and,shall be just and reasonable. If the effective date of
this Agreement Is other than January 1, the amount of water available to Purchaser and
the payment owed by Purchaser will be prorated far the remaining monthly of the
Calendar Year,, 2002.
b) The charge for any water actually diverted and used during the
next calendar year vv411 be billed to Purchaser on a monthly basis based on the actual
diversion and usage for the previous month at the Agreement water Rate,
c) Purchaser may elect to defer payment of its obligations for water
purchased pursuant to Agreement Reserved Water Charges by providing Authority
notice of such election in writing within 60 days from the date of execution of this
Agreement. In no instance shall the deferral terms extend beyond the initial ten years
of this Agreement
If Purchaser selects deferred payments the following structure will be used:
(t) Years 1-2: Purchaser will receive a credit of 500Ih of the
Agreement Reserved Water Charge.
(21) Years 3.11: Purchaser will receive a credit of 2-510/6 of the
Agreement Reserved Water Charge.
(3) Years. 5-6: Purchaser will receive no deferral of the Agreement
Reserved Water Charge.
(4) Year 7: Purchaser will pay 125c/'o of the Agreement Reserved
Water Charge. J
(5) Year 8-9. Purchaser vAll pay 150% of the Agreement Reserved
Water Charge.
(6) Year 10: Purchaser will pay the remaining outstanding deferred
balance plus loo°fo of the current year's Agreement Reserved water Charge.
Notwithstanding anything herein to the contrary, in the event the differed
payments calculation yields a rate that is less than the then current Authority System
Rate, the full System Rate will be the rate charged for the Fiscal Year's payment
Unpaid balances will accumulate interest based on actual Authority Interest rates
earned on the Authority's investments. The Authoritys interim rate will be the
Authority's average annual portfolio yield plus 0.5 percent per annum for administrative
costs. Interest charges will be assessed on an annual basis using simple interest,
compounded annually.
09/06/2002 FRI 15:50 1T/RX NO 95 T O) [?)008
7. UNCONDITIONAL NATURE of PAYMENT OBLIGATION: PRICE.
f a) Purchaser unconditionally agree to pay Authority in accordence
with the terms of this Agreement for the water agreed to be made available to
Purchaser from the LCRA water pursuant to this Agreement.
b) The Agreement Rates are derived using the follovAng
components:
(t) The Authority's System Rate (currently $29.90 per
acre-foot of water per year).
(2) The Total LORA Water Rate, Total LCRA Reserved water
Charge, or Total LORA Inverted Bloch Rate (as defined in Section S.b.(S)r above).
(3) The "Cost Recovery Fee" (the applicable Total LCRA Rage
minus the Authority's System Rate minus the Credlt for System Rate Recovery),
c) The "Credit for System Rate Recovery' (a 25% discount from the
Total LORA Water Rate or the Total LCRA Reserved water Rate, but not from the Total
LCRA Inverted Block Rate)_ The Agreement Reserved water Charge (ARWC) is the
System Rate plus the Cost Recovery Fee. Using current components, the Agreement
Reserved Water Charge is derived as follows:
ARWC= SR + CRF
ARWC= $26.00 + (Total LORA Reserved Water Charge - S R-CS RR)
ARWC= $26,00 + ($65,63 --$26.00- $x.6.41)
ARwc. $26.O0 + $2-3-22
ARWC= $49.22
d) The Agreement dater Rate is equal tea the Agreement Reserved
Water Charger currently $19.22, and is In addition to the Agreement Reserved dater
Ch a rge.
e) T-he Agreement Inverted Block Rate is equal to the Total LCRA
Inverted Block Rate, currently $25O_00.
f) Authority may, and it specifically reserves the right to, revise the
Agreement Rates from time to time (usually prior to the start of each Fiscal Year) to
reflect changes In the System Rage and the LCRA Rates. Authority shall not increase the
Agreement Rates other dean on a Fiscal Year basis except for unforeseeable reasons of
a serious and substantial nature. Suds reasons include Force Majeure, government
legislation or regulation, permit requirements, or changes in the LCRA Rates.
g) Notwithstanding anything herein to the contrary, In the event the
Agreement Rates calculation yields a rate that Is less than the then current Authority
System Rate, the System Rate will be the Agreement Rates,
8. SOURCE of PAYMENTS. The payments to be made hereunder by
Purchaser shall constitute operating expenses of Purchaser's water works system or
Purchaser's combined water works and sewer system_ Purchaser shall charge rates for
services of Its water works system or its combined water works and sewer systems that
W11 be Sufficient to pay the operating and maintenance expenses thereof, including the
payments provided for hereunder, and the interest on and principal of, as the same
come due and maturer obllgations issued by Purchaser now or hereafter payable from
the revenues of said system or systems,
i
09/06/2002 FRI 15:50 [TX/FX NO 95701 a oo9
9. INTEREST ON PAST DUE PAYMENT: COLLECTION. In the event of
(allure of Purchaser to make any payment to authority provided to be made in this
Agreement at the time when same shall be dUe, the past due payment shall bear
intere=st at the lesser of the highest rate allowed by applicable law or 18 percent per
year. Regardless of any other provision contained in this Agreement, Authority shall
never be entitled to receive, collect, or apply as interest under this Agreement any
amount of money deternnined at a rate which exceeds the Highest Lawful Rate. If
Authority ever charges, receives, collects, or applies as interest an amount in excess of
that permitted by application of the Highest Lawful Rate, then any such amount which
would be excessive Interest shall be deemed a partial prepayment of amounts payable
under this Agreement which do no constitute interest and shall be treated hereunder as
such; and if all other obligations payable under this Agreement shall have been paid in
Mir then Authority shall refund the amount of such excessive interest.
10. REMEDIES FOR NONPAYMENT OR DEFAULT. Should Purchaser fail
to make anyp ayment to Authority when due hereunder or otherwise be in debuit under
this Agreement, Authority at Its sole option and In addition to and without impairing any
other remedy available to it on account of the default, may elect to either(i) suspend Its
duty to make available water to Purchaser under this Agreement or ('10 terminate this
Agreement, by providing written notice of such suspension or to minabon delivered to
Purchaser on or before BQ days before the date sped�ed in said notice of suspension or
termination, provided that the nonpayment or other default with respect to which
notice of suspension or termination of this Agreement has been given, shall not be cured
by the date specified In such notice. Nothing in-this Agreement shall be construed in
any manner so as to abridge, limit, or deprive either party hereunto or any means which
it would otherwise have of enforcing any right or remedy either In law or in equity fxor
breach of any of the provisions hereof.
11. REMEDIES of OVERUSE. Purchaser recognizes that any diversion of
water in excess of its contractual amount may impact Authoritys ability to make
available wafter to Authority's other raw water customers. Purchaser agrees that if for
any reason it needs to exceed the contractual annual amount of water to be made
available to it under this Agreement, Purchaser will give mitten notice to Authority 30
days in advance of the need for such additional water and In such notice will state the
reason for the additional need, the amount of water needed to be made available, and
the duration of the need. Authority, in its sole discretion, nnay make all or a portion of
the requested water available.
Should Authorlty determine that it can make all or a portion of the requested
water available without adversely Impacting its abiilty to make water available to its
other customers, Purchaser agrees to pay for such water to be made available in
advance at a rate that is equal to the then current Agreement Iriverled Block Rate.
Should Purchaser fail to notify Authority of Its need for additional water to be
made available, and exceed the contractual annual amount of water to be made
available to it, or should Purchaser, after notification of Authority and AuthorltVs
09/06/2002 Fill 15:59 I7`, /%l No 95701 U010
determination that additional water is not available for Purchaser's use, nonetheless
exceed the contractual amount Df water to be made available to it, Authority may cancel
this Agreement by providing written notice of such cancellation delivered to Purchaser
on or before thirty (30) days before the date specified in said notice of cancellation.
Nothing in this Agreement shall be construed in any manner so as to abridge,
limit, or deprive either party hereunto of any means which it would otherwise have of
enforcing an right or remedy -either in law or in equity for breach of any of the
Y
prorr'tsions hereof.
12. FACILITIES. All new facilities that are located in the Area of use that
are used to transport raw water that is purchased pursuant to this Agreement
exdusively may be owned and operated by LORA, at its sole option. All neer facilities or
all substantial expansions to facilities that are located In the Area of Use that treat water
or transport treated water that is purchased pursuant to this Agreement and that are
constructed by BRA or MCRA shall be Brazos-Colorado Alliance projects, The LCRA may
own, at its sole option, a portion of any such facilltles that is commensurate with the
percentage that LCRA waxer(Lea., water supplied under the LCRA Contract) bears to the
total amount of water supplied by BRA and LCRA for treatment or transportation by such
facilities. Fdr example.. if hventy-five percent (251%) of the water used at an Alliance
facility is supplied by LCRA under the LCRA Contract, the LCRA may own twenty-five
percent (2.594) of that facility. -All such facilities in the Area of use, however, shall be
operated by BRA.
All new facilities and all substantial expansions to facilities that are located in the
Area of Use that treat or transport treated water purchased pursuant to this Agreement
that are constructed by Purchaser may be owned and/or operated by Purchases- if such
ownership and/or operation is desired by Purchaser.
Purchaser acknowledges that the economics of scale and etfidendes of use
made possible by regionalization of water treatment facilities are highly desirable.
Purchaser, therefore, agrees to negotiate In good faith with BRA and LORA to maximize
the potential for regionalization of water treatment and transportation fadlitles, either
new fadlities or substantial expansion of Facilities, located in the Area of use used to
treat or transport water that is purchased pursuant to this Agreement,
13. METERING. Purchaser agrees that, at its sole cost and expense, it shad
install, operate and maintain meters frvr the accurate measuring of all water diverted by
Purchaser under this Agreement in order to aid Authority in accurately reporting actual
water usage to the TNRCC as required by applicable law or regulation. Such meter or
meters shall be tested and calibrated For accuracy by and at the expense of Purchaser
once each fiscal year at intervals of approximately 12 months, and a report of such test
and calibration shall be furnished to Authority. Authority shall be given at least two prior
clays notice of the time of any test and calibration of Purchaser's meters, or any of them,
and Authority shall have the right to have a representative present at each test to
observe the test and any adjustments found thereby to be necessary. Authority shall
have the right to inspect and check the accuracy of Purchaser's meter or meters at any
09ias/2002 FRI 15:50 iTX/FZN No 95701 [Dull
1`
1
time during usual business hours after not less than one nor more than fiVe (5) days
notice_ In the event any question arises at any trine as to the accuracy of any such
meter, such meter shall be tested promptly upon demand of Authority, the expense of
such test to be borne by Authority if the meter is found to be correct and by Purchaser if
it is found to be incorrect. Readings within 2% of accuracy, plus or minus, shall be
cunsidered correct. If, as a result of any test any meter if found to be registering
inaccurately (i.e., in excess of 2% of accuracy, plus or minus), the readings of such
meter shad be corrected at the rate of Its inaccuracy far any period which is detinttely
known and agreed upon, but in case the period is not definitely known and agreed
upon, then the shorter of the following periods shall be used as the basis for correction:
a) a period extending back either 60 days from the nate of demand
for the test or, if no demand for the test was made, 60 days from the date of the test;
or
b) a period extending back half of the time elapsed since the last
previous testi
and the records of readings shall be adjusted accordingly. Following each test of a
meter, Purchaser shall cause the same to be calibrated to register accurately.
1 4. REPORTING. Purchaser agrees that it will keep accurate records of the
daily readings from the meter or meters Installed pursuant to Section 13., Metering,
above. `these records shall be subject to inspection by Authority at reasonable times
and places. Purchaser shall submit reports to Authority by the 10' day of each month
showing the amount of water diverted under this Agreement each day during the
preceding month.
15. SYSTEM AGREEMENT. rhls Agreement does not affect the rights and
obligations of Authority and Purchaser under the Systern Agreements.
16, CONSERVATION 4F WATER. It is the intent of the parties to this
Agreement to provide to the maximum extent practicable for the conservation of water,
and purchaser agrees that It is a condition of this Agreement that it shall maintain and
operate its fadlilies in a manner that Will -prevent unnecessary waste of water.
Authority, in accordance with applicable law or regulation, may from time to time adopt
reasonable rules and regulations relating to water conservation. Purchaser agrees to
abide by the "Brazos Ryer Authority Drought Contingency Policy" adopted by the Board
on January 16, 1989, or any subsequent Drought Contingency Policy duly adopted by
the Board and any Drought Contingency Plans developed under the Drought
Contingency Policy. If required by applicable law or regulation or by Authority,
Purchaser agrees to implement a water conservation and drought management program
in accordance with a water conservation plan and that the water made available and
diverted by Purchaser pursuant to this Agreement will be used in accordance with such
conservation plan, and with the regulations of the Texas Natural Resource Conservation
Commission (or other appropriate regulating authority) applicable to retail public utilities.
Purchaser further agrees to make available its water conservation and drought
contingency programs to Authority and LCRA for review. If required by applicable law or
09/06/2002 FR1 15:50 1111/lUX NO 95703 (9}012
• in the event Purchaser furnished water or water
regulation Purchaser agrees that, services to the ultimate
services to a third arty that in turn will furnish the water.ar
se P
- water conservation shall be met through
cansurner, the requirements relative to g
contractual agreements between Purchaser and the third party providing for the
established and "Implementation of a -water Conservation program �n compliance with
�
such applicable law or regulation.
comply with its water conservation plan, Authorlty may, at
If Purchaser fads to c P Y
its sale option terminate this Agreement without recourse unless such default is tared
of such default is not susceptible to being Cured within
with#n thirty (30) or, �f the nature Y p
such thltty (3o) ditii
da period, such longer period of time during which Purchaser g er�ti
y
prosecutes the cure of such
default, not to exceed ninety (90) days of Purchaser's
receipt of written notice of such default.
QUALITY, As a further condition of this Agreements Purchaser�i�. WATER � in the
at it will comply with applicable grater quality standards of the State
also agrees that Y a P PP hereunder. Should
ion use reuse or discharge of water made available
diversion, � r
• an competent legal authority to have degraded tie quaftY
Purchaser be determined by y P 9
of water of the Stat b
State or to have violated any water quality standard established y
law
or lawfully adopted regulation, and subsequently fait to take action with reasonable
. . out ori such failure
diligence to correct such deficiency as directed by competent legal h ty,
shall constitute an event of def6ult under this Agreement.
Authority, in P
accordance with applicable law or regulation may from time to time
9
or re regulations relatln to wader quality protection. If required
adopt reasonable rules and eg g
regulation or by Authority, Purchaser agrees to i
by applicable lair mplement
appropriate water quality protection measures including' without limitations, a non-point
q ty
source vater polluflon abatement program in accordance with a non-point source water
pollution abatement plan.
Jos WATER SURPLUS TO PURCHASER'S NEEDS. Purchaser may not
a made
Agreement or reduce the amounts of water agreed to b
unilaterally cancel this
available to it and for which availability it is obligated to pay under the terms of Sections
ovided in section 26, below. Purchaser may not sell or
.4. And �., above, except as pr
make available to others the water agreed to be made avallable to it under this
e case of municipal uses, as potable treated water. However,
Agreement,, except in the P Beds from the
should Purchaser
determine that it has water surplus to its anticipated n
tY
�rat�r to be made available by
Authors under this Agreement, Purchaser may notify
o water no longer needed to be made available to it.
Authority as to the amount f ' ` a
Authority will use reasonable efforts to find a third party who is able and willing to pay
too the end of this Agreement. If Authority is successful
for such availability for a period � Interest in its available
finding such a third party suitable to It to acquire Purchasers in
In t` 9 � A
surplus for a period of time to the end of this Agreement, this Agreement will be
amount of water to be made available to Purchaser by the
amended to reduce the
amount of availabilityaid for by such third party, and Purchaser will
be retrieved of the
obis,9 ation to make payments for such avaiiability of water.
09/06/2002 Fill 15:50 11'.X/Izx NO 9510) X013
19. SHORTAGF-S. Authotity makes no guarantee that any lakes or other
sources of supply in the Colorado River basin will be maintained at any spedfiic level at
any particular time, Purchaser bears all transportation losses prior to final diversion. It
is fully understood by the parties hereto that the level of lakes or other sources of
supply in the Colorado River Basin will vary as a result of weather conditions beyond the
control of Authority, and that this instrument is merely an agreement to require
Authority to make available water when and if water is available to Authority under this
Authority's LORA Contract, and to allow Purchaser to make withdrawals of the water
subject to the general law on distribution and allocation of wager during shortages of
supply.
Authority covenants that it will use its best reasonable effbrts to maintain and
preserve its rights under the LC1 A Contract. If for any reason the availability of water
W Authority under the LCR.A Contract is restricted, unpaired, or otherwise limited,
Authority agrees, and Purchaser covenants, that Authority may fairly and equitably
apportion and ration the available water supply fmm the LCRA Contract arnong all its
several customers receiving water from Authority as a result of the LORA Contract,
including Purchaser.
20. FORCE MAJEURE. Notwithstanding anything herein to the contrary,
neither party hereto shall be under-any liability or be deemed in default with respect to
its obligations under this Agreement for any fallure to perform or for delay In performing
such party's obligations hereunder (except for the obligation to pay money) where such
failure or delay is due to force majeure, while and to the extent that such performance
Is prevented by such cause. -Me term force majeure means acts of God, fire, storm,
flood, war, riots, sabot-age, drought lack of availab111ty of water due to sedimentation,
low inflows of water to, or lack of water supply in the System or from the Colorado Rlver
basin to be made available under the LORA Contract strikes or other differences with
labor (whether or not within the power of the parries to settle same), decrees or orders
of the courts or other governmental authority, or other similar or dissimilar causes not
within the reasonable control of such party and not due to negligence of such party.
Each party shall use due diligence to resume performance of any obligation suspended
by force majeure at the earliest practicable time.
21. WAIVER. Any waiver at any time by any party of Its rights with respect
to default under this Agreement shall not be deemed a waiver of such rights with
respect to any subsequent default or matter.
22, NOTICES AND CERTIFICATION& Notices and certificat;ons provided
for in this Agreement shall be in writing. The same shall be delivered by mailing
certified ,nail, postage paid, return receipt requested, to the respective parties at the
fallowing addresses:
09/06/2002 FRI 15:50 1T.X/RX No 957101 IM014
Authority: Brazos River Authority
4600 Cobbs Dave
P.O. Sox 7555
Waco, Texas 76714-75-55
Telephone= (7-54) 761-3100
Fax: (254) 7 61-3 207
Purchaser: City of Round Rock
221 East Main street
Round Rock, Texas 78664
Telephone: (512) 218-5400
Fax: (512) 218-7097
Either party may change its address as shown above by written notice to the
other party. Notices shall be deemed to have been delivered on the business day
following them- deposit in the United Staters mail, postage paid, and properly addressed
and certified.
23, OTHER REQUIREMENT* 'This Agreement is subject to all conditions,
provisions, and limitations included in Authority's water rights from the TNRCC and the
Systern Order and the LORA Contract_ Further, this Agreement is subject to all
applicable Federal, State and local laws, and any applicable ordinances, rules, orders
and regulations of any local, State or Federal governmental authority having jurisdiction.
However, nothing contained in this Agreement shall be construed as a waiver of any
t
right to question or contest any law, ordinance, order, rule, .or regulation of any
governmental authority.
24a SEVERABILITY. The provisions of this Agreement are severable, and if
for any reason any one or more of the provisions contalned In this Agreement shall be
held to be invalid, illegal, or unenforceable in any respect, the invaliditr, illegality, or
unenfbrceability shall not affect any other provisions of this Agreement and this
Agreement shall remain in effect and be coned as if the invalid, illegal, or
unenforceable provision had never been contained in the Agreement. r
25. ASSIGNMENT. This Agreement may be assigned by Purchaser only
With the written consent of Authority, which consent shall not be unreasonably withheld
or .dela edOnly assignment of this entire Agreement will be approved. Releases of
Y Y 9
lesser obligations must be authorized under Sermon 18., water Surplus to Purchaser's
Needs, above.
26. TERMS OF AGREEMENT. The term of this Agreement shall begin on
the Effective Dater Section 3., and shall end on the fifty (50) year anniversary of the
Effective Date, If Authority is able to extend or renew its LORA Contract, Authorlty and
Purchaser agree to negotiate in good faith regarding terms for extension or renewal of
this Agreement.
r
U9/06/2002 Fill 15:50 !'l'.X/R-( NO 9.9701 Q)01 5
If Purchaser is current on all payments due Authority under this Agreement,
Purchaser may terminate this contract, in whole or in part, on February 15 of any year
following the expiration of ten (10) years measured from the Effective Date by providing
six {6} months prior written notice to Authority, that is by August 15 of the year
preceding the February 15 termination date.
This Agreement shall be null and void in the event that the interbasin transfer
permit referenced in Section 3, above, is not issued by the TNRCC with the two (2)
years of the date of filing of the application for said interbasin transfer permit.
CrrY of ROUND ROCK BRAZOS RIVER AUTHORITY
By: Ey:
�Armk V- h) 17)A KW E; Phillip 1. Ford
Title: M General Manager/CEO
ATTEST: ATTEST:
A)A;b
Assistant Secretary
If Purchaser is current on all payments due Authority under this Agreement,
Purchaser may terminate this contract, in whole or in part, on February 15 of any year
following the expiration of ten (10)years measured from the Effective Date by providing
six (6) s prior rior written notice to Authority, that is by August 15 of the year
preceding the February 15 termination date.
This Agreement shall be null and void in the event that the interbasin transfer
Permit referenced In Sectlon 3, above, is not issued by the TNRCC with the two (2)
years of the date of filling of the application for said interbasin transfer pean!L
CITY of Ido UN D ROCK BjzAZ0SRWER AuTHOWIT
13y~ By
rfs v. pl„flip J. Ford
'ode: General Manager/CEO
ATTEST: ATTEST:
r
• Ass nt Secretary
09/00/2002 FRI IS: 50 ITT/]Z� NO 95701 Q1016
------- EXHIBIT
i
E
I SYSTEM WATER AVAILABILITY AGREEMENT
Brazos River Authority
P. 4. Sox 7555
Waco, Texas 76714-7555
(254) 776-1991
i
t
CITY OF ROUND ROCK
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SYSTEM 'CATER AVAILABILITY AGREEMENT
FOR COLORADO RIVER BASIN WATER
BETWEEN
BRAZOS RIVER AUTHORITY
AND
CITY OF ROUND ROCK
AGREEMENT made and entered into this theme day of-I` r;E.
20061 by and between BRAZOS RIVER AUTHORITY ("Authority"), a river
authority of the State of Texas, and CITY of ROUND ROCK ("Purchaser") of
Williamson County, Texas.
I. RECITALS. Authority owns and operates various lakes in the
Brazos River Basin. Authority also has entered into contracts with the United
States of America by virtue of which it has obtained the right to utilize for water
supply purposes a portion of the usable storage space in various lakes owned
and operated by the United States Army Corps of Engineers. Authority is
authorized by the State of Texas to store state waters in the lakes owned by
Authority and various lakes owned and operated by the United States Army
Corps of Engineers in the Brazos River Basin, hereinafter collectively called the
"System", and to make such stored waters available for beneficial use.
Authority is authorized to operate the system as a hydrologic unit
pursuant to an order of the Texas Water Commission (formerly Texas Natural
Resource Conservation Commission "TNRCC", now Texas Commission on
Environmental Quality "TCEQ") issued on July 23, 1964 ("System operation
Order"). The Final_Determination of All Claims of Water Rights in the Brazos
River Basin and the San Jacinto--Brazos Coastal Basin Maintained by the Brazos
River Authority, Fort Bend County W.C.I.D. No. 1 and Galveston County Water
Authority("Final Determination") 'issued on June 26, 1085, by TCEQ clarified and
amplified the system operation Order. Under the System operation order as
adjudicated by the Final Determination, Authority is authorized to operate the
System as a hydrologic unit to more efficiently utilize the reservoirs that make up
the System to make water available to meet the needs of Authority's customers.
Authority and Purchaser acknowledge that the LCRA Water (as defined below) is
not part of the System operation order.
Authority has also acquired the right to divert and use 25,000 acre-feet of
water per year from the Colorado River Basin made available from the Lower
Colorado River Authority (LORA) under the "Water Sale Contract by and between
Lower Colorado River Authority and Brazos River Authority Purchaser", dated
October 2000 (LORA Contract) pursuant to the terms of mouse Bill 1437 of the
76th Texas Legislative Session and codified under section 27 of the LORA
Enabling Act. It is from the 25,000 acre-foot of water per year from the Colorado
R- C")6-0710-21- 11
UUM444.
River Basin ( the "LCRA" Water") that Purchaser now wishes to contract for
Authority to make available 9,484 acre-feet of water per Calendar Year under
the terms and conditions herein provided.
2. DEFINITIONS.
a) The term "Agreement" means this agreement.
b) The terra "Area of Use" means that certain area in Williamson
County that lies outside of the watershed of the Colorado River, but excludes
those municipalities which were customers of the Lower Colorado River Authority
as of May 20, 1997, and who are located in watersheds of both the Colorado and
Brazos Rivers.
c) The term "Authority" shall mean Brazos River Authority.
d) The term "Board" shall rnean the Board of Directors of Brazos River
Authority.
e) The term "Federal Contracts" shall mean those contracts with the
United States of America whereby Authority has acquired, is acquiring, or may
acquire conservation storage capacity in Federal Reservoirs. The parties hereto
acknowledge that the term "Federal Contracts" does not appear elsewhere in this
Agreement.
f} The term "Federal Reservoirs" shall include the following:
Aquilla Dam and Reservoir
Belton Darr] and Reservoir,
Georgetown Dara and Reservoir
Granger Darn and Reservoir
Proctor Darn and Reservoir
Somerville Dam and Reservoir
Stillhouse Hollow Dani and Reservoir
Whitney Dann and Reservoir
g) The terra "Fiscal Year" shall mean Authority's fiscal year from
September 1 through August 31, or such other annual fiscal year period as
Authority may later determine.
h) The term "Highest Lawful Rate" shall mean the maximum rate
which Authority may charge on obligations payable under this Agreement without
violation of any applicable law or any applicable lawful regulation of any agency
of the State of Texas or of the United States having jurisdiction of the matter.
i) The term "LCRA" means Louver Colorado River Authority.
!} The term "LCRA Contract" means the "Water Sale Contract by and
between Lower Colorado River Authority and Brazos River Authority, Purchaser"
dated October 2000.
k) The term "LCRA Rates" means the LORA rates and charges for
sale of water for municipal purposes as delineated in Section 11. B. of the LCRA
Contract.
I) The term "LCRA Water" means the 26,000 acre-feet of water per
year purchased by Brazos River Authority from LCRA pursuant to House Bill
1 437 of the 76th Texas Legislature Session.
rn) The term "Municipal laser` shall mean the use of potable water
within a community or municipality and its environs or ETJ for domestic,
recreational, commercial, or industrial purposes or for the watering of golf
courses, parks and parkways.
n) The terns "Purchaser" shall mean city of Round Rock.
o) The term "System" shall mean Authority's Water Supply System
and shall include certain of Authority's facilities and properties insofar as they are
related to making water available from the System, to wit, as follows: Morris
Sheppard Dann and Possum Kingdom Reservoir, DeCordova Bend Darn and
Lake Granbury, Sterling C. Robertson Darn and Lake Limestone, Authority's
conservation storage in the Federal Reservoirs, and the LORA Water obtained
pursuant to the LCRA Contract, together with all future extensions,
improvements, enlargements, and additions to and replacements of the System,
and all replacements thereof whether from surface water supplies, groundwater,
or a combination thereof, specifically added to the System by resolution of the
Board; provided that, notwithstanding the foregoing, the term System shall not
include (i) any of Authority's facilities and properties not specifically included in
the System by the terms of this Agreement or not added by a subsequent
resolution of the Board, and (ii) any water supply, wastewater or other facilities
which have been or are declared not to be a part of the System and which may
be acquired or constructed by Authority with the proceeds from the issuance of
"Special Facilities Bonds," which are hereby defined as being special revenue
obligations of Authority which are not secured by or payable from the revenues of
the System but which are secured by and payable solely from special contract
revenues or payments received from any persons or other legal entity or entities
in connection with such special facilities.
p) The terra "System Agreements" means those certain raw water
contracts titled "System Water Availability Agreement Between Brazos River
Authority and city of Round Rock.
q) The term "System Operation order" shall mean that certain order of
the TCEQ or its predecessor dated July 23, 1964, as adjudicated by order of the
TCEQ or its predecessor on June 28, 1985, in the Final Determination of all
Claims of Water Rights in the Brazos River Basin and the San Jacinto-Brazos
Coastal Basin Maintained by the Brazos River Authority, Fort Bend Count
W.C.I.D. leo. 1 and Galveston County Water Authorily. The parties hereto
acknowledge that the LCRA Water is not covered by the "System operation
Order."
r) The term "System Rate" or "SR"' shall mean the rate per acre--foot of
water established by Authority from time to time under its system-wide pricing
methodology.
s) The term "Total Annual Budgeted System Costs" shall mean the amounts
approved by Authority as estimated costs of the Systern in the annual budgets adopted
by Authority for a given Fiscal Year including, without limitation, amounts budgeted to
meet Annual System Operation and Maintenance Expenses and Annual Capital Related
Costs. The parties hereto acknowledge that the term "Total Annual Budgeted System
Costs"does not appear elsewhere in this Agreement.
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t) The term "Total System Billing Units' shall mean the total amount of
water (expressed in acre-feet) determined by Authority under accepted engineering
practice as necessary to be reserved from firm yield produced by storage in the System
to fulfill its commitments for which Authority receives payment under long terra tin
excess of five years) water sales contracts with Purchaser and Authority's other
customers; provided, however, such term shall not include amounts of water required
by appropriate governmental authority to be reserved in the System for use for bay and
estuary purposes, in-stream uses, or for other similar environmental, public, or other
beneficial uses to the extent Authority is not adequately compensated for any such
requirement. The parties hereto acknowledge that the terra "Total System Billing Units"
does not appear elsewhere in this Agreement.
3. EFFECTIVE DATE. The effective date of this Agreement is
November 1, 2000.
4. AVAILABILITY OF WATER. While this Agreement remains in
force, Authority agrees to make available to Purchaser an amount of water not to
exceed 9,484 acre-feet of water per Calendar Year under the following
conditions:
a) Notwithstanding anything herein to the contrary, Authority's
obligation to make water available to Purchaser under this Agreement is subject
to, and limited by, the rights of Authority to obtain the LCRA water pursuant to
the LORA Contract. Purchaser acknowledges that Purchaser has received a
copy of the LORA Contract and is familiar with the rights of Authority thereunder,
and the limitations on Authority's rights thereunder to obtain the LORA Water.
b) Authority may interrupt or curtail the water supplied to Purchaser
under this Agreement to the extent Authority experiences interruption or
curtailment of water supplied to it under the LCRA Contract for any reason.
C) Water supplied under this Agreement shall only be used within the
Area of Use.
d) Purchaser acquires no property rights in the water made available
to it under this Agreement beyond the right to have the water made available to it
for diversion and use under the terms of this Agreement. This right of use
extends to direct reuse (flange to flange) of the water available under this
Agreement. Purchaser represents, and Authority relies on such representation,
that all water to be made available by Authority under this Agreement to
Purchaser shall be used solely for Municipal Use.
8. PRICING STRUCTURE
a) The pricing structure for water rates under this Agreement is
dependent upon the pricing structure of water made available to the Authority
under the LCRA Contract.
b) The LCRA Water is provided to Authority under the LCRA Contract
pursuant to the following pricing structure:
(1) The "Water Bate" for LCRA water is charged for water
diverted and used during a calendar year. The current Water Rate is $115.00
per acre-foot of water per year.
(2) The "Reserved Water Charge" for LCRA Water is charged
for water under contract but not diverted and used during a calendar year. The
Reserved Water Charge is 50% of the Water Rate, or currently $57.50 per acre-
foot of water per year.
(3) The "Inverted Block Rate" for LORA Water is charged for all
water used in excess of the total contractual amount and is currently $219.00 per
acre-foot of water per year.
(4) The "Conservation Charge" for LCRA Water is currently 25%
of the Water Rate, the Reserved water Charge, or the Inverted Block Rate, as
applicable.
(5) The current "Total LCRA Rates" for LCRA Water are as
follows..
(a) The "Total LCRA Water Rate" is the Water Rate + the
Conservation Charge, currently $143.75 an acre-foot.
(b) The "Total LCRA Reserved !hater Charge" is the
Reserved Water Charge + the Conservation Charge, currently $71.875 an acre-
foot.
(c) The "Total LCRA Inverted dock Rate" is the inverted
Block Rate + the Conservation Charge, currently $250.00 an acre-foot..
(d) The Authority hereby makes water available to
Purchaser at the cost the Authority is required to pay LCRA for water.
(e) The Purchaser hereby acknowledges the fact that it is
responsible for paying to the Authority all costs charged to the Authority by LORA
for the 9,484 acre--feet of LCRA Water contemplated in this Agreement.
c) Purchaser acknowledges the fact that the LCRA has the ability to
increase rates at any time without notice, which in turn will simultaneously
increase the rates to be paid under this Agreement.
6. DATE AND PLACE OF PAYMENTS.
a) Payments to be made hereunder shall be made at
Authority's office in Waco, McLennan County, Texas. Authority contemplates
that by September 1 of each f=iscal Year it will have adopted budgets for
Authority for said Fiscal Year and established the System Rate. Total LCRA
Rates -will be adopted as set by the LCRA, which may be subsequent to
September 1. Payments for each Fiscal Year may be made under one of three
payment options from which Purchaser will select at the beginning of each Fiscal
Year. The payment due at the beginning of each Fiscal Year will be for the water
agreed to be provided during the next calendar year and shall be based on the
Total LCRA Reserved Water Charge. Annual payments for water provided at the
Total LCRA Reserved Water Charge shall be made on or before September 15
each Fiscal Year. The payment due at the beginning of each Fiscal Year will be
for the water agreed to be provided during the next calendar year. Annual
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payments shall be made on or before September 15 each Fiscal Year. Quarterly
payments shall be made on or before September 15, December 15, March 15,
and June 15 each Fiscal Year. Monthly payments shall be made on or before
the fifteenth of each month each Fiscal Year. Quarterly payments or monthly
payments shall include a multiplier to be applied to the annual payment to allow
Authority to recover interest lost on any unpaid balance plus a service charge for
administrative costs, including but not limited to costs involving the billing,
accounting, and collecting for the quarterly or monthly payments. The multiplier
to recover lost interest revenue and the service charge for administrative costs
shall be determined on an annual basis and shall be just and reasonable. Since
the Effective Date of this Agreement is November 1, 2006, the amount of water
available to Purchaser and the payment owed by Purchaser will be prorated for
the remaining months of the Calendar Year 2006.
b) The charge for any water actually diverted and used during
the next calendar year will be billed to Purchaser on a monthly basis based on
actual diversion and usage for the previous month at the Total LCRA Water Rate.
7. SOURCE of PAYMENTS. The payments to be. made hereunder
by Purchaser shall constitute operating expenses of Purchaser's water works
system or Purchaser's combined water works and sewer system. Purchaser
shall charge rates for ser vices of its water works system or its combined water
works and sewer systems that will be sufficient to pay the operating and
maintenance expenses thereof, including the payments provided for hereunder,
and the interest on and principal of, as the same come due and mature,
obligations issued by Purchaser now or hereafter payable from the revenues of
said system or systems.
B. INTEREST ON PAST DUE PAYMENT; COLLECTION. In the
event of failure of Purchaser to make any payment to Authority provided to be
made in this Agreement at the time when same shall be due, the past due
payment shall bear interest at the lesser of the highest rate allowed by applicable
law or 18 percent per year. Regardless of any other provision contained in this
Agreement, Authority shall never be entified to receive, collect, or apply as
interest under this Agreement any amount of money determined at a rate which
exceeds the Highest Lawful Rate. if Authority ever charges, receives, collects, or
applies as interest an amount in excess of that permitted by application of the
Highest Lawful Rate, then any such amount which would be excessive interest
shall be deemed a partial prepayment of amounts payable under this Agreement
which do not constitute interest and shall be treated hereunder as such; and if all
other obligations payable under this Agreement shall have been paid in full, then
Authority shall refund the amount of such excessive interest.
9. REMEDIES FOR NONPAYMENT OR DEFAULT. Should
Purchaser fail to make any payment. to Authority when due hereunder or
otherwise be in default under this Agreement, Authority at its sole option and in
addition to and without impairing any other remedy available to it on account of
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the default, may elect to either (i) suspend its duty to make available water to
Purchaser under this Agreement or (ii) terminate this Agreement, by providing
written notice of such suspension or termination delivered to Purchaser on or
before 30 days before the date specified in said notice of suspension or
termination, provided that the nonpayment or other default with respect to which
notice of suspension or termination of this Agreement has been given, shall not
be cured by the date specified in such notice. nothing in this Agreement shall be
construed in any manner so as to abridge, limit, or deprive either party hereunto
of any means which it would otherwise have of enforcing any right or remedy
either in law or in equity for breach of any of the provisions hereof.
10. REMEDIES FOR OVERUSE. Purchaser recognizes that any
diversion of water in excess of its contractual amount may impact Authority's
ability to rake available water to Authority's other raw water customers.
Purchaser agrees that if for any reason it needs to exceed the contractual annual
amount of water to be made available to it under this Agreement, Purchaser will
give written notice to Authority 30 days in advance of the need for such additional
water and in such notice will state the reason for the additional need, the amount
of water needed to be made available, and the duration of the need. Authority, in
its sole discretion, may make all or a portion of the requested water available.
Should Authority determine that it can make all or a portion of the
requested water available without adversely impacting its ability to make water
available to its other customersT Purchaser agrees to pay for such water to be
made available in advance at a rate that is equal to the then current Total LCRA
Inverted Block Rate.
Should Purchaser fail to notify Authority of its need for additional water to
be made available, and exceed the contractual annual amount of ulster to be
made available to it, or should Purchaser, after notification of Authority and
Authority's determination that additional water is not available for Purchaser's
use, nonetheless exceed the contractual amount of water to be made available to
it, Authority may cancel this Agreement by providing written notice of such
cancellation delivered to Purchaser on or before thirty (30) days before the date
specified in said notice of cancellation provided the overuse to which notice of
cancellation of the Agreement has been given shall not be cured by the date
specified in such notice.
Nothing in this Agreement shall be construed in any manner so as to
abridge, limit, or deprive either party hereunto of any means which it would
otherwise have of enforcing any right or remedy either in law or in equity for
breach of any of the provisions hereof.
FACILITIES. All new facilities that are located in the Area of Use
that are used to transport raw water that is purchased pursuant to this Agreement
exclusively may be owned and operated by LCRA, at its sole option. All new
facilities or all substantial expansions to facilities that are located in the Area of
Use that treat water or transport treated water that is purchased pursuant to this
Agreement and that are constructed by BRA or LCRA shall be Brazos-Colorado
Alliance projects. The LORA may own, at its sole option, a portion of any such
facilities that is commensurate with the percentage that LCRA water (i.e., water
supplied under the LCRA Contract) bears to the total amount of water supplied
by BRA and LCRA for treatment or transportation by such facilities. For
example, if twenty-five percent (25%) of the water used at an Alliance facility is
supplied by LCRA under the LCRA contract, the LCRA may own twenty-five
(25%) percent of that facility. All such facilities in the Area of Use, however, shall
be operated by BRA.
All new facilities and all substantial expansions to facilities that are located
in the Area of Use that treat or transport treated water purchased pursuant to this
Agreement that are constructed by Purchaser may be owned and/or operated by
Purchaser if such ownership and/or operation is desired by Purchaser.
Purchaser acknowledges that the economics of scale and efficiencies of use
made possible by regionalization of water treatment facilities are highly desirable.
Purchaser, therefore, agrees to negotiate in good faith with BRA and LCRA to
maximize the potential for re ionalizativn of water 'treatment P 9 m nt and transportation
facilities, either new facilities or substantial expansion of facilities, either new
facilities or substantial expansion of facilities located in the Area of Use used to
treat or transport water that is purchased pursuant to this Agreement.
12. METERING. Purchaser agrees that, at its sole cost and expense, it
shall install. operate and maintain meters for the accurate measuring of all water
diverted by Purchaser under this Agreement in order to aid Authority in
accurately reporting actual water usage to the TCEQ as required by applicable
law or regulation. Such meter or meters shall be tested and calibrated for
accuracy by and at the expense of Purchaser once each fiscal year at intervals of
approximately 12 months, and a report of such test and calibration shall be
furnished to Authority. Authority shall be given at least two prior days notice of
the time of any test and calibration of Purchaser's meters, or any of there, and
Authority shall have the right to have a representative present at each test to
observe the test and any adjustments found thereby to be necessary. Authority
shall have the right to inspect and check the accuracy of Purchaser's meter or
meters at any time during usual business hours after not less than one nor more
than five (5) days notice. In the event any question arises at any time as to the
accuracy of any such meter, such meter shall be tested promptly upon demand
of Authority, the expense of such test to be borne by Authority if the meter is
found to be correct and by Purchaser if it is found to be incorrect. Readings
within 2% of accuracy, plus or minus, shall be considered correct. If, as a result
8
of any test, any meter is found to be registering inaccurately (i.e., in excess of 2%
of accuracy, plus or minus), the readings of such meter shall be corrected at the
rate of its inaccuracy for any period which is definitely known and agreed upon,
but in case the period is not definitely known and agreed upon, then the shorter
of the following periods shall be used as the basis for correction:
a) a period extending back either 60 days from the date of demand for
the test or, if no demand for the test was made, 80 days from the date of the test;
or
b) a period extending hack half of the time elapsed since the last
previous test;
and the records of readings shall be adjusted accordingly. Following each test of
a meter, Purchaser shall cause the same to be calibrated to register accurately.
13. REPORTING. Purchaser agrees that it will keep accurate records
of the daily readings from the meter or meters installed pursuant to Section 12.,
Metering! above. These records shall be subject to inspection by Authority at
reasonable times and places. Purchaser shall submit reports to Authority by the
10th day of each month showing the amount of water diverted under this
Agreement each day during the preceding month.
14. SYSTEM AGREEMENT. This Agreement does not affect the rights
and obligations of Authority and Purchaser under the System Agreements.
15. CONSERVATION of WATER. It is the intent of the parties to this
9
Agreement to provide to the maximum extent practicable for the conservation of
water, and Purchaser agrees that-it is a condition of this Agreement that it shall
maintain and operate its facilities in a manner that.will prevent unnecessary
waste of water. Authority, in accordance with applicable law or regulation, may
from time to time adopt reasonable rules and regulations relating to water
conservation. Purchaser agrees to abide by the "Brazos River Authority Drought
Contingency Policy„ adopted by the Board on January 16, 1989, or any
subsequent Drought Contingency Policy duly adopted by the Board and any
Drought contingency Plans developed under the Draught Contingency Policy. If
required by applicable law or regulation or by Authority, Purchaser agrees to
implement a water conservation and drought management program in
accordance with a water conservation plan and that the water made available
and diverted by Purchaser pursuant to this Agreement will be used in accordance
with such conservation plan, and with the regulations of the Texas Commission
on Environmental Quality (or other appropriate regulating authority) applicable to
retail public utilities. Purchaser further agrees to make available its water
conservation and drought contingency programs to Authority and LCRA for
review. If required by applicable law or regulation Purchaser agrees that, in the
event Purchaser furnishes water or water services to a third party that in turn will
furnish the water or services to the ultimate consumer, the requirements relative
to water conservation shall be met through contractual agreements between
9
Purchaser and the third party providing for the establishment and implementation
of a water conservation program in compliance with such applicable law or
regulation_
If Purchaser fails to comply with its water conservation plan, Authority
may, at its sole option terminate this Agreement without recourse unless such
default is cured within thirty (30) days or, if the nature of such default is not
susceptible to being cured within such thirty (30) day period, such longer period
of time during which Purchaser diligently prosecutes the cure of such default, not
to exceed ninety (90) days of Purchaser's receipt of written notice of such
default.
16. WATER QUALITY. As a further condition of this Agreement,
Purchaser also agrees that it will comply with applicable water quality standards
of the State in the diversion, use, reuse, or discharge of water made available
hereunder. should Purchaser be determined by any competent legal authority to
have degraded the quality of treater of the State or to have violated any water
quality standard established by law or lawfully adopted regulation, and
subsequently fail to take action with reasonable diligence to correct such
deficiency as directed by competent legal authority, such failure shall constitute
an event of default under this Agreement.
Authority, in accordance with applicable law or regulation, may from time
to time adopt reasonable rules and regulations relating to water quality
protection. if required by applicable law or regulation or by Authority, Purchaser
agrees to implement appropriate water quality protection measures including,
without limitation, a non-point source water pollution abatement. program in
accordance with a non-point source water pollution abatement plan.
17. WATER SURPLUS To PURCHASER'S NEEDS. Purchaser may
not unilaterally cancel this Agreement or reduce the amounts of water agreed to
be made available to it and for which availability it is obligated to pay under the
terms of Sections 5. and 6., above, except as provided in Section 24, below.
Purchaser may not sell or make available to others the water agreed to be made
available to it under this Agreement, except in the case of Municipal Use, as
potable treated water. However, should Purchaser determine that it has water
surplus to its anticipated needs from the water to be made available by Authority
under this Agreement, Purchaser may notify Authority as to the amount of water
no longer needed to be made available to it. Authority will use reasonable efforts
to find a third party who is able and willing to pay for such availability for a period
to the end of this Agreement. if Authority is successful in finding such a third
party suitable to it to acquire Purchaser's interest in its available surplus for a
period of time to the end of this Agreement, this Agreement will be amended to
reduce the amount of water to be made available to Purchaser by the amount of
availability paid for by such third party, and Purchaser will be relieved of the
obligation to make payments for such availability of water.
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18. SHORTAGES. Authority makes no guarantee that any lakes or
other sources of supply in the Colorado River Basin will be maintained at any
specific level at any particular time. Purchaser bears all transportation losses
prior to final diversion. It is fully understood by the parties hereto that the level of
lakes or other sources of supply in the Colorado River Basin will vary as a result
of weather conditions beyond the control of Authority, and that this instrument is
merely an agreement to require Authority to make available water when and if
water is available to Authority under the Authority's LCRA Contract, and to allow
Purchaser to make withdrawals of the water subject to the general law on
distribution and allocation of water during shortages of supply.
Authority covenants that it will use its best reasonable efforts to maintain
and preserve its rights under the LCRA Contract. If for any reason the availability
of water to Authority under the LCRA Contract is restricted, impaired, or
otherwise limited, Authority agrees, and Purchaser covenants, that Authority may
fairly and equitably apportion and ration the available water supply from the
LCRA Contract among all its several customers receiving water from Authority as
a result of the LCRA Contract, including Purchaser.
19. FORCE NIAJEURE. Notwithstanding anything herein to the
contrary, neither party hereto shall be under any liability or be deemed in default
with respect to its obligations under this Agreement for any failure to perform or
for delay in performing such party's obligations hereunder (except for the
obligation to pay money) where such failure or delay is due to force majeure,
while and to the extent that such performance is prevented by such cause. The
term force majeure means acts of God, fire, storm, flood, war, riots, sabotage,
drought, lack of availability of water due to sedimentation, low inflows of water to,
or lack of water supply from the Colorado River basin to be made available under
the LCRA Contract, strikes or other differences with labor (whether or not within
the power of the parties to settle same), decrees or orders of the courts or other
governmental authority, or other similar or dissimilar causes not within the
reasonable control of such party and not due to negligence of such party. Each
party shall use due diligence to resume performance of any obligation suspended
by force majeure at the earliest practicable time.
20. WAIVER. Any waiver at any time by any party of its rights with
respect to default under this Agreement shall not be deemed a waiver of such
rights with respect to any subsequent default or matter.
21. NOTICES AND CERTIFICATIONS. Notices and certifications
provided for in this Agreement shall be in writing. The same shall be delivered by
mailing certified mail, postage paid, return receipt requested, to the respective
parties at the following addresses;
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Authority: Brazos River Authority
P.O. Box 7555
Waco, Texas 76714-7555
Telephone: (254) 761-3100
Fax: {254} 761-3207
Purchaser: city of Round Rock
221 E. Main St.
Round Rock, Texas 78664
Telephone: 512^ 218-5400
Fax: 512-218-7007
Either party may change its address as shown above by written notice to
the other party. Notices shall be deemed to have been delivered on the business
day following their deposit in the United States mail, postage paid, and properly
addressed and certified.
22. OTHER REQUIREMENTS. This Agreement is subject to all
conditions, provisions, and limitations included in Authority's water rights frau the
LCRA Contract. Further, this Agreement is subject to all applicable Federal,
State and local laws, and any applicable ordinances, rules, orders and
regulations of any local, State or Federal governmental authority having
s jurisdiction. However, nothing contained in this Agreement shall be construed as
a waiver of any right to question or contest any law, ordinance, order, rule, or
regulation of any governmental authority.
23. SEVERABILITY. The provisions of this Agreement are severable,
and if for any reason any one or more of the provisions contained in this
Agreement shall be held to be invalid, illegal, or unenforceable in any respect,
the invalidity, illegality, or unenforceability shall not affect any other provisions of
this Agreement and this Agreement shall remain in effect and be construed as if
the invalid, illegal, or unenforceable provision had never been contained in the
Agreement.
24. ASSIGNMENT. This Agreement may be assigned by Purchaser
only with the written consent of Authority, which consent shall not be
unreasonably withheld or delayed. Only assignment of this entire Agreement will
be approved. Releases of lesser obligations must be authorized under Section
17., Water Surplus to Purchaser's Needs, above.
r
25. TERM OF AGREEMENT. The term of this Agreement shall begin
on the Effective Date, Section 3., and shall end on August 31, 2051. If Authority
is able to extend or renew its LORA Contract, Authority and Purchaser agree to
negotiate in good faith regarding terms for extension or renewal of this
Agreement.
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If Purchaser is current on all payments due Authority under this
Agreement, Purchaser may terminate this Agreement, in whole or in part, on
February 15 of any year following the expiration of ten (10) years measured from
the Effective Date of the LCRA Contract by providing six (6) months prior written
notice to Authority, that is by August 15 of the year preceding the February 15
termination date.
CITY of ROUND ROCK BRAZOS RIVER AUTHORITY
By: By:
Xeaxwell Phi ip J. Ford
avy General Manager/CEG
ATTEST: ATTEST:
Christine Martinez, City Secretary
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