R-91-1655 - 9/12/1991ATTEST:
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R 09121J
LAND, City Secretary
RESOLUTION NO. /(U55R
WHEREAS, the City filed a petition for rate review with the Texas
Water Commission seeking review of the rates charged by the Brazos
River Authority ("BRA ") for water from Lake Georgetown and Stillhouse
Hollow Lake, and
WHEREAS, BRA has offered a settlement proposal whereby the Lake
Georgetown contract is amended and the Stillhouse Hollow Lake
agreement is replaced, and
WHEREAS, the new agreements represent a savings of approximately
$121 million to the City's ratepayers over the next fifty years, and
WHEREAS, the City Council wishes to approve said settlement
proposal, Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS
That the Mayor is hereby authorized and directed to execute on
behalf of the City an Amendment To Water Supply Contract By And
Between Brazos River Authority and City of Round Rock and a
Replacement Water Supply Agreement Between Brazos River Authority and
City of Round Rock.
RESOLVED this 12th day of September, 1991.
MIKE ROBINSON, Mayor
City of Round Rock, Texas
September 11, 1991
AMENDMENT TO WATER SUPPLY CONTRACT BY AND BETWEEN
BRAZOS RIVER AUTHORITY
AND
CITY OF ROUND ROCK
AGREEMENT made and entered into this the /p2 day of
September, 1991, by and between BRAZOS RIVER AUTHORITY
( "Authority "), a river authority of the State of Texas, and the
CITY OF ROUND ROCK ( "Round Rock "), of Williamson County, Texas.
1. RECITALS. Authority and Round Rock are parties to a
contract entitled "Water Supply Contract By And Between Brazos
River Authority and City of Round•Rock" ( "1978 Contract "),
dated April 20, 1978, under which Round Rock is granted the
right to make withdrawals of water from Lake Georgetown (called
"North Fork Lake" in 1978 Contract) built by the United States
Army Corps of Engineers on the North Fork of the San Gabriel
River in Williamson County, Texas. At the time 1978 Contract
was entered into, Lake Georgetown had not been constructed. It
has now been completed and Round Rock has been utilizing Lake
Georgetown as a water supply under the provisions of the
contract for several years. 1978 Contract was extended and
amended by an agreement entitled "Extension And Amendment Of
Water Supply Contract By And Between Brazos River Authority and
City of Round Rock" ( "Amendment "), dated October 29, 1980. The
purpose of this Agreement is to amend 1978 Contract as extended
and amended by Amendment, to change the method of determining
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the amounts of payments required thereunder to be made by Round
Rock to Authority.
2. DELETIONS. Sections II, III, IV, and V of the 1978
Contract and Section II1 of the Amendment are deleted and
replaced by the provisions of this Agreement.
3. AVAILABILITY OF WATER TO ROUND ROCK. While this
Agreement remains in force, Round Rock shall have the right to
make withdrawals of water from Lake Georgetown ( "Lake ") at any
Rate up to a maximum of 6,000,000 gallons per day ( "6 mgd ").
"Rate," as that term is used herein, means the amount of water
per day which Round Rock is permitted to withdraw from Lake
under 1978 Contract as amended by Amendment and by this
Agreement (1978 Contract as amended by Amendment and by this
Agreement being hereinafter sometimes called "Amended
Contract ") averaged over a period of one (1) year and is not a
limitation upon the amount permitted to be withdrawn on any
specific day. The Rate at which Round Rock has heretofore
elected to have water available to it for withdrawals is 3 mgd.
It shall never be reduced below 3 mgd. At least 30 days in
advance of the date, which shall coincide with the first day of
a month, on which Round Rock wishes to increase the Rate, Round
Rock will give Authority written notice of the desired new Rate
and of the date on which such desired new Rate shall become
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effective. After the Rate has been increased in response to
such a written notice, it shall not thereafter be decreased.
Should the Rate ever exceed Round Rock's needs, Authority will,
upon written request from Round Rock, use reasonable efforts to
sell the water for which Round Rock has obligated itself to pay
by this Agreement in excess of the amounts which it can
actually use and will apply the proceeds of any such sale in
excess of Authority's costs in making such sale and supplying
the water sold against the obligations of Round Rock to make
payments to Authority under this Agreement.
4. DETERMINATION OF PAYMENTS. The amount of water in
acre -feet which can be withdrawn by Round Rock from Lake during
a period of one (1) calendar year at the Rate which is in
effect at any given time is hereinafter called "Election Use
Water ". The difference between 6,720 acre -feet and the number
of acre -feet of Election Use Water in effect at any given time
is hereinafter called "Option Water ". Round Rock shall make
payments to Authority during each year while Amended Contract
remains in force for the amount of Election Use Water in effect
during the year at the price of $22.22 per acre -foot, escalated
as hereinafter provided. Payments for Election Use Water shall
be made whether or not Round Rock actually withdraws from Lake
the full amount of Election Use Water during the year for which
such payments are made. Round Rock shall also make payments to
Authority for the amount of Option Water in effect during such
year at the price of $11.11 per acre -foot, escalated as
hereinafter provided. Should the amount of Election Use Water
be increased on an effective date other than January 1 of any
year, Round Rock shall transmit to Authority with its notice of
increase in Rate, an amount of money in cash determined by the
application of the following formula:
Let C equal the amount of cash to be transmitted;
Let x equal the price per acre -foot for Election Use Water
in effect at the time of transmittal of such notice;
Let y equal the price per acre -foot for Option Water in
effect at the time of transmittal of such notice;
Let N equal the number of acre -feet per year by which the
amount of Election Use Water is increased by such
notice;
Let a equal the number of days between the effective date
of the increase in the amount of Election Use Water
called for in such notice and December 31 of the
calendar year in which such increase is effective;
Then
C = (x -v) . N . a
365
5. DATE OF PAYMENTS. Payments provided to be made
hereunder (other than those related to increases in Rate
occurring during a calendar year) shall be payable on or before
March 3 of each year.
6. CONSUMER PRICE INDEX. Authority's Board of
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Directors may, in January of each year, but shall not be
required to, if reasonable need exists, adjust the prices to be
paid by Round Rock for water available under this Agreement
during such year by application of the following formula:
Let x equal the adjusted price per acre -foot to be paid
for such year for Election Use Water or for Option
Water;
Let y equal 30% of the price per acre -foot for Election
Use Water or Option Water as of the effective date of
this Agreement;
Let z equal 70% of the price per acre -foot for Election
Use Water or Option Water as of the effective date of
this Agreement;
Let a equal the Consumer Price Index For Urban Wage
Earners And Clerical Workers (CPI -W, U.S. City
Average, 1982 -84 = 100) published by the Bureau of
Labor Statistics of the U.S. Department of Labor
("Index ") for the month of November preceding the
date on which the adjustment is made.
Let b equal the Index for the month of November, 1990;
Then x equals y (a /b) + z.
Authority shall provide notice of any anticipated adjustment to
the price pursuant to this Section to Round Rock by January 1
of each year. Additionally, Authority shall, by January 1 of
each year, furnish Round Rock with the data to be utilized by
the Board of Directors in determining whether reasonable need
exists, whether the adjustment should be made, and the
anticipated amount thereof. After at least fifteen (15) days,
to review the information received from Authority, Round Rock
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may present any information which Round Rock deems relevant to
any such adjustment to the Board of Directors at its next
regular meeting at which the price adjustment is to be
considered.
7. EMERGENCIES. In addition to the foregoing amounts,
Authority may require Round Rock to pay a pro rata share of the
costs of emergency repairs to any of its reservoirs which are
of a magnitude which Authority cannot, without serious
interference with its ability to fulfill its statutory
responsibilities, pay from funds on hand or through the
issuance of bonds or other borrowings which can be repaid out
of revenues available without adjustment of the rates of its
water customers. If any other entities are contractually
obligated to Authority to pay for emergency repairs at any
reservoir, other than by any contract with pro rata share
payment obligations like those in this Agreement, then Round
Rock's prices shall not be adjusted under this Section.
Emergency repairs are defined to be repairs to correct
structural problems involving the safety or continued utility
of any of Authority's reservoirs, which problems are discovered
after the effective date of this Agreement. For purposes of
this Agreement, "Authority's reservoirs" means Morris Sheppard
Dam (sometimes called Possum Kingdom Reservoir) in Palo Pinto
and other counties, Texas; DeCordova Bend Dam (sometimes called
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Lake Granbury) in Hood and Parker Counties, Texas; and
Sterling C. Robertson Dam (sometimes called Lake Limestone) in
Leon, Robertson and Limestone Counties, Texas, together with
Lake Belton, Lake Georgetown, Lake Somerville, Granger Lake,
Aquilla Lake, Stillhouse Hollow Reservoir, Lake Whitney, and
Lake Proctor, reservoirs which were constructed by the United
States Army Corps of Engineers in the Brazos River Basin of
Texas, in each of which Authority holds contractual rights to
conservation storage space. Round Rock's pro rata share of the
costs of the annual payment related to emergency repairs
payable under this Agreement shall be calculated as follows:
Let P equal Round Rock's pro rata share (expressed as
a number of dollars) of costs for emergency
repairs;
Let C equal the total long -term commitments (expressed as
a number of acre feet per year) against the yield of
Authority's reservoirs for which Authority is
contractually entitled to be paid during the calendar
year for which the payment is made, including the
loss of yield associated with any limitation on
reservoir drawdowns;
Let D equal the annual debt service (expressed as a number
of dollars) on Authority's bonds that are issued to
finance the costs of the emergency repairs which
exceed available Authority funds.
Then:
P equals 6,720 (D /C)
Notice of any anticipated costs for emergency repairs pursuant
to this Section will be given to Round Rock as soon as
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Authority has determined the need for expending such amounts,
and in advance of Authority incurring such costs for emergency
repairs. Further, at the time that such notice is given,
Authority shall also provide Round Rock with documentation to
support the need for the costs associated with such emergency
repairs.
8. EFFECTIVE DATE, DURATION AND REBATE. The effective
date of this Agreement is January 1, 1991. It shall remain in
effect for so long as Lake is operational for water supply
purposes and Authority continues to have the rights provided
for in Appendix 1 to 1978 Contract or for a term of 100 years
from Beginning Date as defined in 1978 Contract, whichever is
less. Heretofore, on or about March 1, 1991, Round Rock paid
to Authority the sum of $286,212.00, which was the payment
required of it by the provisions of 1978 Contract. Had this
Agreement actually been in force on its effective date, the
payment required of Round Rock hereunder would have been
$111,989.00. Authority agrees that it will refund the sum of
$174,223.00 cash (the difference between $286,212.00 and
$111,989.00 to Round Rock on or before the 30th day of
September, 1991, so that Round Rock's payment to Authority for
the year 1991 will be $111,989.00 unless Round Rock shall elect
to increase the Rate before December 31, 1991.
9. REASONABLENESS OF PRICES. Round Rock and Authority
agree that the prices for water from Lake Georgetown set out
herein are reasonable and, with the price adjustment provisions
contained herein, enable Authority to fulfill its statutory
responsibilities.
10. YEARLY REPORTS. Authority agrees to provide to
Round Rack, on an annual basis, information indicating the
amount of uncommitted water that Authority has available for
contract on a long -term basis from any reservoir, and the
amount that would be available to Round Rock. Additionally,
Authority will also provide to Round Rock its yearly financial
reports as they are completed and made available to Authority.
11. AGREEMENT TO AMEND. If, in settlement of the
petition for rate review filed by Bell County Water Control and
Improvement District No. 1 ( "BCWCID ") before the Texas Water
Commission ( "Commission "), Docket No. 8169 -M, Authority
voluntarily enters into a newly negotiated contract for supply
of raw water with BCWCID prior to a final determination of
Docket No. 8169 -M by the Commission or by a court upon review
of any such determination by the Commission, or following
agreed dismissal of the petition filed by BCWCID in Docket No.
8169 -M, then Authority agrees to amend this Agreement with
Round Rock, upon Round Rock's request, to substitute or
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incorporate any terms or conditions of any such new contract
with BCWCID that are more favorable to Round Rock than the
terms of this Agreement and to delete any term or condition
from this Agreement which imposes a requirement on Round Rock
that is not imposed on BCWCID in such new contract which would
appropriately be imposed on both Round Rock and BCWCID if
Authority were according substantially equal treatment to each,
considering all material differences in their respective
contracts. This Agreement to amend applies only to a newly
negotiated contract with BCWCID which is entered into pursuant
to the conditions described above.
BRAZOS RIVER AUTHORITY
By: /r° J Cc -Prue,.
Roy A. Roberts, P.E.
General Manager
CITY OF ROUND ROCK
By
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"Authority"
Mayor
ATTEST:
(Brazos \Round Rock. Amendment)
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"Round Rock"
REPLACEMENT WATER SUPPLY AGREEMENT
BETWEEN
BRAZOS RIVER AUTHORITY
AND
THE CITY OF ROUND ROCK
September 11, 1991
AGREEMENT made and entered into this the /c2 day of
September, 1991, by and between BRAZOS RIVER AUTHORITY
( "Authority "), a river authority of the State of Texas, and the
CITY OF ROUND ROCK ( "City ") of Williamson County, Texas.
1. RECITALS. Authority has entered into a contract
with the United States of America by virtue of which it has
obtained the right to utilize a portion of the storage space in
Stillhouse Hollow Lake ( "Stillhouse ") in Bell County, Texas,
constructed by the United States Army Corps of Engineers on the
Lampasas River. Under said contract Authority has the right to
supply water from Stillhouse to various cities and others
having need for water. Heretofore on January 24, 1985,
Authority and City entered into an agreement ( "Old Contract ")
by virtue of which Authority agreed to make water from
Stillhouse and other sources available to City. As a result of
changed circumstances, the terms of Old Contract are no longer
appropriate. The purpose of this Agreement is to provide for
cancellation of Old Contract and to provide for Authority to
make water available to City for withdrawal from Stillhouse on
the terms and conditions herein provided.
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2. EFFECTIVE DATE AND CANCELLATION. Old Contract is
cancelled as of and the effective date of this Agreement is
January 1, 1991.
3. AVAILABILITY OF WATER TO CITY. While this Agreement
remains in force, Authority agrees to make available to City
for withdrawal from Stillhouse 8,134 acre -feet of water per
year. The water available to City under this Agreement at any
given time shall be classified as either "Election Use Water"
or "Option Water ". Election Use Water is defined as water
which City is authorized to withdraw from Stillhouse without
further notice to Authority. Option Water is water available
to City for withdrawal from Stillhouse only after it shall have
notified Authority of its desire to have such water
reclassified to Election Use Water. At least 30 days in
advance of the date, which shall coincide with the first day of
a month, on which City wishes to have Option Water reclassified
as Election Use Water, City will give Authority written notice
of the amount with respect to which reclassification is desired
and of the date on which such desired reclassification shall
become effective. After Option Water has been reclassified as
Election Use Water, the amount of water classified as Election
Use Water shall not thereafter be decreased and City shall
thereafter make payments to Authority each year on the basis of
the amount of Election Use Water in effect as a result of any
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such increases, whether or not it actually withdraws the full
amount of such Election Use Water to which it is then entitled
during such year. City shall make payments to Authority during
each year while this Agreement remains in force for the amount
of Election Use Water in effect during the year at the rate of
$22.22 per acre -foot, escalated as hereinafter provided. It
shall also make payments to Authority for the amount of Option
Water in effect during such year at the price of $11.11 per
acre -foot, escalated as hereinafter provided. Should the
amount of Election Use Water be increased on an effective date
other than January 1 of any year, City shall transmit to
Authority with the notice of increase in the amount of Election
Use Water, an amount of money in cash determined by the
application of the following formula:
Let C equal the amount of cash to be transmitted;
Let x equal the price per acre -foot for Election Use Water
in effect at the time of transmittal of such notice;
Let y equal the price per acre -foot for Option Water in
effect at the time of transmittal of such notice;
Let N equal the number of acre -feet per year by which the
amount of Election Use Water is increased by such '
notice;
Let a equal the number of days between the effective date
of the increase in the amount of Election Use Water
called for in such notice and December 31 of the
calendar year in which such increase is effective;
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Then
C = ( -v) . N . a
365
4. INITIAL AMOUNTS. Pending written notice from City
of its desire to increase the amount of Election Use Water, the
amount of Election Use Water available to it under this
Agreement is 0 acre -feet per annum and the amount of Option
Water available to it is 8,134 acre -feet of water per year.
5. DATE AND PLACE OF PAYMENTS. Payments to be made
hereunder shall be payable at Waco, Texas. Payments other than
those related to increases in the amount of Election Use Water
effective between January 1 and December 31 shall be payable on
or before February 15 of each year.
6. CONSUMER PRICE INDEX. Authority's Board of
Directors may, in January of each year, but shall not be
required to, if reasonable need exists, adjust the prices to be
paid by City for water available under this Agreement during
such year by application of the following formula:
Let x equal the adjusted price per acre -foot to be paid
for such year for Election Use Water or for Option
Water;
Let y equal 30% of the price per acre -foot for Election
Use Water or Option Water as of the effective date of
this Agreement;
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Let z equal 70% of the price per acre -foot for Election
Use Water or Option Water as of the effective date of
this Agreement;
Let a equal the Consumer Price Index For Urban Wage
Earners And Clerical Workers (CPI -W, U.S. City
Average, 1982 -84 = 100) published by the Bureau of
Labor Statistics of the U.S. Department of Labor
( "Index ") for the month of November preceding the
date on which the adjustment is made.
Let b equal the Index for the month of November, 1990;
Then x equals y (a /b) + z.
Authority shall provide notice of any anticipated adjustment to
the price pursuant to this Section to City by January 1 of each
year. Additionally, Authority shall by January 1 of each year,
furnish City with the data to be utilized by the Board of
Directors in determining whether reasonable need exists,
whether the adjustment should be made, and the anticipated
amount thereof. After at least fifteen (15) days to review the
information received from Authority, City may present any
information which City deems relevant to any such adjustment to
the Board of Directors at its next regular meeting, at which
the price adjustment is to be considered.
7. EMERGENCIES. In addition to the foregoing amounts,
Authority may require City to pay a pro rata share of the costs
of emergency repairs to any of its reservoirs which are of a
magnitude which Authority cannot, without serious interference
with its ability to fulfill its statutory responsibilities, pay
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from funds on hand or through the issuance of bonds or other
borrowings which can be repaid out of revenues available
without adjustment of the rates of its water customers. If
any other entities are contractually obligated to Authority to
pay for emergency repairs at any reservoir, other than by
contract with pro rata share payment obligations like those in
this Agreement, then City's prices shall not be adjusted under
this Section. Emergency repairs are defined to be repairs to
correct structural problems involving the safety or continued
utility of any of Authority's reservoirs, which problems are
discovered after the effective date of this Agreement. For
purposes of this Agreement, "Authority's reservoirs" means
Morris Sheppard Dam (sometimes called Possum Kingdom Reservoir)
in Palo Pinto and other counties, Texas; DeCordova Bend Dam
(sometimes called Lake Granbury) in Hood and Parker Counties,
Texas; and Sterling C. Robertson Dam (sometimes called Lake
Limestone) in Leon, Robertson and Limestone Counties, Texas,
together with Lake Belton, Lake Georgetown, Lake Somerville,
Granger Lake, Aquilla Lake, Stillhouse Hollow Reservoir, Lake
Whitney, and Lake Proctor, reservoirs which were constructed by
the United States Army Corps of Engineers in the Brazos River
Basin of Texas, in each of which Authority holds contractual
rights to conservation storage space. City's pro rata share of
the annual payment related to emergency repairs payable under
this Agreement shall be calculated as follows:
Let P equal City's pro rata share (expressed as a
number of dollars) of costs for emergency
repairs;
Let C equal the total long - term commitments (expressed as
a number of acre feet per year) against the yield of
Authority's reservoirs for which Authority is
contractually entitled to be paid during the calendar
year for which the payment is made, including the
loss of yield associated with any limitation on
reservoir drawdowns;
Let D equal the annual debt service (expressed as a number
of dollars) on Authority's bonds that are issued to
finance the costs of the emergency repairs which
exceed available Authority funds.
Then:
P equals 8,134 (D /C)
Notice of any anticipated costs for emergency repairs pursuant
to this Section will be given to City as soon as Authority has
determined the need for expending such amounts, and in advance
of Authority incurring such costs for emergency repairs.
Further, at the time that such notice is given, Authority shall
also provide City with documentation to support the need for
the costs associated with such emergency repairs.
8. 1991 PAYMENTS. On or about February 15, 1991, City
made a payment to Authority of $251,259.26, pursuant to its
obligations under Old Contract. Had this Agreement actually
been in effect as of its effective date, C payment to
iltit�ori{.. �Q
Authority would have been $90,369.00. City ag ees to pay to
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the sum of $160,890.26, cash (the difference between
$251,259.26 and $90,369.00) on or before September 30, 1991.
9. IMPOSED COSTS. In addition to the adjustments in
price for the water as described in Paragraph 6, above, and any
payment for pro rata share of emergency costs described in
Paragraph 7, above, any additional direct cost(s) or expense(s)
which may be imposed on Authority in connection with the
fulfillment of its obligations under this Agreement by taxation
or as a result of regulations or requirements lawfully imposed
by the State, the United States or any State or Federal Agency
subsequent to execution of this Agreement shall be passed
through Authority to City on a reasonable, just and non-
discriminatory basis and shall be billed to and paid by City.
If the imposed additional cost(s) or expense(s) are based on
amounts of water made available to the City, as provided by the
statute or regulation engendering the additional cost(s) or
expense(s), the City shall only be billed and make payments for
additional sums based on the amount of water it has under
contract with the Authority. If the imposed additional cost(s)
or expense(s) are imposed as a lump sum, as provided by the
statute or regulation engendering the additional cost(s) or
expense(s), the City will only be billed and make payments for
its reasonable pro rata share of the cost(s) or expense(s)
based on the amount of water it has under contract with the
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Authority. It is the intent of the parties hereto that, if any
imposed costs are attributable both to activities of the
Authority in providing untreated water and to another activity
of Authority -- including without limitation sewage treatment,
electric power generation, or water treatment -- such imposed
costs will be apportioned among Authority's customers
benefitting from such activities on an equitable basis.
10. SOURCE OF PAYMENTS. The payments to be made
hereunder by City shall constitute operating expenses of City's
water works system or City's combined water works and sewer
systems. City 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 now or hereafter payable from
the resources of said system or systems.
11. RATE. The water to be made available to City under
this Agreement may be diverted from Stillhouse at daily rates
desired by City, provided that Authority does not covenant to
make water available for diversion by City at a daily rate in
excess of five times the average daily rate which would result
in diversion during a calendar year of the total number of
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acre -feet of water per year then agreed to be made available
for diversion by City.
12. 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 City 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.
13. INTEREST ON PAST DUE PAYMENT. In the event of
failure of City 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 rate or 10% per
annum.
14. CANCELLATION FOR NONPAYMENT. Should City fail to
make any payment to Authority when due hereunder, Authority may
cancel this Agreement, by written notice of such nonpayment and
statement of Authority's election to cancel this Agreement by
reason thereof delivered to City on or before 30 days before
the date specified in said notice for cancellation, provided
that the nonpayment with respect to which notice has been given
shall not be cured by the date thus specified in such notice.
In the absence of cancellation of this Agreement by Authority,
unless Authority fails or refuses to make available City water
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requested under the terms of this Agreement and City does not
waive its obligations to such failure or refusal, the
obligation of City to make any payments required by Paragraph
7, above, shall be unconditional and absolute.
15. FORCE MAJEURE. 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
where such failure or delay is due to acts of God, fire, storm,
flood, war, riots, sabotage, drought, low inflows of water to
Stillhouse, 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, while
and to the extent that the performance is prevented by such
cause (Force Majeure) and due diligence is being used to resume
performance at the earliest practicable time. Notwithstanding
the provisions of this paragraph, Force Majeure shall not
relieve the City of its obligations to make any payments
required by Paragraph 7, above.
16. WAIVER. Any waiver at any time by any party of its
rights with respect to default under this Agreement shall not
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;r.
subsequent default or matter.
be deemed a waiver of such rights with respect to any
17. REMEDIES. Nothing in this Agreement shall be
construed as, in any manner, 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.
18. ARBITRATION. Disputes between the parties arising
under this Agreement shall be submitted to arbitration under
the rules of the American Arbitration Association.
19. WITHDRAWAL FACILITIES. The provision of facilities
for diversion from Stillhouse of the water agreed to be made
available by Authority to City hereunder shall be the
responsibility of City. Authority shall use its reasonable
efforts to assist City in obtaining an easement for right -of-
way for City's diversion facilities across United States
Government lands at Stillhouse at no cost to City subject to
the conditions that the design and location for such facilities
shall be approved by the District Engineer, Fort Worth
District, U. S. Army Corps of Engineers, that City shall
prepare and furnish all documentation necessary for obtaining
the easement including a map of convenient size locating the
point of diversion by course and distance from a survey corner
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or other identifiable points, which map shall at that time be
made a part of this Agreement as Appendix I, and that City
shall operate the facilities located on United States
Government lands in a manner acceptable to the District
Engineer, Fort Worth District, U. S. Army Corps of Engineers.
20. METERING. City agrees that it shall install,
operate and maintain meters for the accurate measuring of all
water diverted from Stillhouse. Further, such meter or meters
shall be tested and calibrated for accuracy by and at the
expense of City once each calendar 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 days prior notice of the time of any test
and calibration of City'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 calibrations found thereby to
be necessary. Authority shall have the right to inspect and
check the accuracy of City's meters at any time during usual
business hours after not less than one nor more than five 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 the Authority, the expense of such test to be
borne by Authority if the meter is found to be correct and by
City if it is found to be incorrect. Readings within 2% of
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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 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, 60 days from the date of the test;
(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, the same shall be calibrated by
City to register accurately.
21. REPORTING. City agrees that it will keep accurate
records of the daily readings from the meter or meters
installed pursuant to Paragraph 20,° above. These records shall
be subject to inspection by Authority at reasonable times and
places. City shall submit reports to Authority by the 10th day
of each month showing the amount of water pumped each day
during the preceding month.
22. SURPLOS WATER. City may not cancel this Agreement
14
nor reduce the amounts of water it is obligated to pay for
under the terms of Paragraphs 3, 7 and 9, above. However,
should City ever determine that it has water surplus to its
anticipated needs from water to be supplied by the Authority
under this Agreement, and upon City's notification to Authority
of the quantity of water City designates as surplus water,
Authority will use its best efforts to find another party who
is able and willing to purchase such surplus water upon terms
and at a price not less favorable to Authority than the price
and terms under this Agreement. Should Authority succeed in
finding such a party and enter into a contract for sale of the
surplus water at such price and upon such terms, then City's
obligation to pay for such surplus water shall be cancelled,
and the parties shall thereupon have no further obligations to
one another with respect to such surplus water; otherwise, the
provisions and obligations of this Agreement shall remain
unchanged.
23. TERM OF AGREEMENT. The term of this Agreement
shall be for a period of 50 years from January 1, 1991, and the
Agreement shall be extended at the written request of City for
so long as Authority continues to have the right to use storage
in Stillhouse for water supply purposes.
24. SALES. It is the understanding of the parties
15
•
hereto that City is entering into this Agreement to obtain a
supply of surface water to be treated by City and delivered to
City's customers as potable water. City may not, without
written consent of Authority, sell to others the water agreed
to be supplied to it under this Agreement except as potable
treated water, provided, however, that if City desires to make
all or a portion of the Option Water available for resale as
raw water on an interim basis prior to the time when it shall
have been reclassified as Election Use Water, Authority will,
upon written request from City, use reasonable efforts to sell
such water and will apply the proceeds of any such sale in
excess of Authority's costs in making such sale and any
additional costs of supplying the water sold against the
obligations of City to make payments to Authority under this
Agreement. No interim sale will be made which will result in
an increase in cost to City under this Agreement.
25. REASONABLENESS OF PRICES. City and Authority agree
that the prices for water from Stillhouse set out herein are
reasonable and, with the price adjustment provisions contained
herein, enable Authority to fulfill its statutory
responsibilities.
26. NOTICES AND CERTIFICATIONS. Notices and
certifications provided for in this Agreement shall be in
16
", r -a1
writing. The same shall be delivered by mailing certified
mail, postage paid, return receipt requested, to the respective
parties at the following addresses:
Authority: Brazos River Authority
P.O. Box 7555
Waco, Texas 76714 -7555
City:
City of Round Rock
221 E. Main Street
Round Rock, Texas 78664
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.
27. YEARLY REPORTS. Authority agrees to provide to
City, on an annual basis, information indicating the amount of
uncommitted water that Authority has available for contract on
a long -term basis from any reservoir, and the amount of water
that would be available to City. Additionally, Authority will
also provide to City its yearly financial reports as they are
completed and made available to Authority.
28. AGREEMENT TO AMEND. If, in settlement of the
petition for rate review filed by Bell County Water Control and
Improvement District No. 1 ( "BCWCID ") before the Texas Water
17
4 � �
Commission ( "Commission "), Docket No. 8169 -M, Authority
voluntarily enters into a newly negotiated contract for supply
of raw water with BCWCID prior to a final determination of
Docket No. 8169 -M by the Commission or by a court upon review
of any such determination by the Commission, or following
agreed dismissal of the petition filed by BCWCID in Docket No.
8169 -N, then Authority agrees to amend this Agreement with
City, upon City's request, to substitute or incorporate any
terms or conditions of any such new contract with BCWCID that
are more favorable to City than the terms of this Agreement and
to delete any term or condition from this Agreement which
imposes a requirement on City that is not imposed on BCWCID in
such new contract which would appropriately be imposed on both
City and BCWCID if Authority were according substantially equal
treatment to each, considering all material differences in
their respective contracts. This Agreement to amend applies
only to a newly negotiated contract with BCWCID which is
entered into pursuant to the conditions described above.
BRAZOS RIVER AUTHORITY
By: Jak -dam
Roy A. Roberts, P.E.
General Manager
18
ATTEST:
By
d i/.11)11 � /iit
(Brazos \RoundRock.Replacement)
CITY OF ROUND ROCK
//m/
19
"Authority"
"City"
Mayor
Jc
DATE: September 10, 1991
SUBJECT: City Council Meeting, September 12, 1991
ITEM: 17.A. Consider discussion and / or possible action
relating to pending litigation, including but not
limited to,
(i) Meadows at Chandler Creek
(ii) Glenn Neans, et al vs. City of Round Rock
C(1ii) - BRA Rate Case"?
(iv) Brushy Creek MUD Rate Case