R-96-09-12-10A - 9/12/1996RESOLUTION NO. R- 96- 09- 12 -10A
WHEREAS, the City Council has determined that it would be
prudent for the future of the City to reserve additional water in
Lake Stillhouse Hollow, and
WHEREAS, the Brazos River Authority has provided the City
with a document entitled System Water Supply Agreement Between
Brazos River Authority and City of Round Rock ( "System Water Supply
Agreement "), which provides for additional reserve water for the
City, and
WHEREAS, the City Council wishes to approve said System
Water Supply Agreement, 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 the System Water Supply Agreement, a copy of
which is attached hereto as an exhibit.
RESOLVED this 12th day of September, 1996.
ATTEST:
E LAND, City Secretary
X:\ NPDOCS \RRSOLVfI \RS60912A.WPD /o1e
(d
CHARLES CULP P, Mayor
City of Round Rock, Texas
SYSTEM WATER SUPPLY AGREEMENT
BETWEEN
BRAZOS RIVER AUTHORITY
AND
CITY OF ROUND ROCK
TABLE OF CONTENTS
1. RECITALS 1
2. DEFINITIONS 2
3. EFFECTIVE DATE 6
4. AVAILABILITY OF WATER 6
5. DATE AND PLACE OF PAYMENTS 6
6. UNCONDITIONAL NATURE OF PAYMENT OBLIGATION;
PRICE 7
7. SOURCE OF PAYMENTS 8
8. INTEREST ON PAST DUE PAYMENT; COLLECTION 8
9. REMEDIES FOR NONPAYMENT OR DEFAULT 9
10. DIVERSION RATE 9
11. WITHDRAWAL FACILITIES 10
12. METERING 10
13. REPORTING 11
14. SYSTEM EXPANSION 11
15. CONSERVATION OF WATER 12
16. WATER QUALITY 13
17. SURPLUS WATER 13
18. WATER SALES BY CITY 14
19. INTERBASIN TRANSFER 15
20. AVAILABILITY OF WATER; SHORTAGES AND YEARLY
REPORTS 15
21. OPERATION OF SYSTEM 17
22. FORCE MAJEURE 17
23. WAIVER 18
24. NOTICES AND CERTIFICATIONS 18
25. OTHER REQUIREMENTS 18
26. SEVERABILITY 19
27. ASSIGNMENT 19
28. TERM OF AGREEMENT 19
w:lcontUtMdrock.tc
SYSTEM WATER SUPPLY AGREEMENT
BETWEEN
BRAZOS RIVER AUTHORITY
AND
CITY OF ROUND ROCK
AGREEMENT made and entered into this the 4.1 day of
4g 1996, by and between BRAZOS RIVER AUTHORITY
c ( "Authority "), a river authority of the State of Texas, and 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 for water
supply purposes a portion of the usable storage space below elevation 622 feet
above mean sea level in Lake Stillhouse Hollow ( "Lake ") presently being
operated by the United States Army Corps of Engineers and located on the
Lampasas River in the State of Texas. Authority is authorized by the State of
Texas to store State waters in Lake and to make such waters available for
beneficial use. As a result of its contract with the United States of America and
its authorization from the State of Texas, Authority has water in Lake which can
be made available for use by City.
Authority is also authorized to operate certain reservoirs, including Lake, in
the Brazos River Basin as a System 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 Authority,
Fort Bend County W.C.I.D. No. 1 And Galveston County Water Authority
( "Final Determination ") issued on June 26, 1985 by the Texas Water
Commission (now TNRCC) clarified and amplified the System Operation Order.
Under the System Operation Order as adjudicated by the Final Determination,
Authority is authorized to operate Possum Kingdom Reservoir, Lake Granbury,
Somerville Reservoir, Stillhouse Hollow Reservoir, Lake Belton, Lake Proctor,
Lake Granger, Lake Georgetown, Lake Limestone, Lake Aquilla and Lake
Whitney as a System to more efficiently utilize the reservoirs in the System to
meet the water supply needs of Authority.
Authority has now implemented a system -wide pricing methodology using a
cash basis cost -of- service consistent with accepted rate making practices of the
water industry. City wishes to contract for 10,000 acre -feet of water per
Calendar Year under the terms of this Agreement pursuant to the System -wide
pricing methodology, and Authority agrees to make water available to City
pursuant to the terms and conditions herein provided.
2. DEFINITIONS.
A. The term "Agreement" means this agreement.
B. The term "Annual Capital Related Costs" shall mean, for any Fiscal
Year, the just and reasonable amounts prudently incurred by Authority for the
construction, reconstruction, acquisition or replacement of the System including,
without limitation, the principal, interest, reserve requirements, paying agent -
registrar fees, debt service coverage requirement and other expenses related to
any bonds or other obligations issued and outstanding and used for the purpose
of financing or refinancing the capital related costs of the System and cash
expenditures therefor to the extent said cash expenditures are reasonable and
prudent and not otherwise made available from monies received as coverage on
bonds allocable to the System.
C. The term "Annual System Operation and Maintenance Expenses"
shall mean, for any Fiscal Year, all just and reasonable and prudently incurred
costs of operating and maintaining, and for repairs and replacement of, the
System including (for greater certainty but without limiting the generality of the
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foregoing) costs incurred for labor, supervision, engineering, accounting,
auditing, legal services, energy, supplies, insurance, payments made by
Authority in satisfaction of judgments resulting from claims not covered by
Authority's insurance, and services and equipment necessary for the proper
operation and maintenance of the System. Operation and maintenance of the
System shall include (for greater certainty, but not by way of limitation) activities
related to water supply, streamgaging, water quality monitoring, efforts to control
salt pollution, planning related to water supply and water quality, all payments
made by Authority to the United States of America or others pursuant to the
Federal Contracts, all expenditures made by Authority to generally protect the
quality of water in the Brazos River or its tributaries, cost of improvements
required by the State of Texas, the United States of America or any State or
Federal agency, amounts to cover Authority's general and administrative
expense allocable to the System and amounts required to prudently maintain
appropriate reserves for insuring continuous, reliable and adequate operation,
maintenance, repair and replacement of the System.
D. The term "Authority" shall mean Brazos River Authority.
E. The term "Board" shall mean the Board of Directors of Brazos River
Authority.
F. The term "Calendar Year" shall mean the period from January 1
through December 31 of any particular year.
G. The term "City" shall mean Round Rock.
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.
I. The term "Federal Reservoirs" shall include the following:
Aquilla Dam and Reservoir
Belton Dam and Reservoir
Georgetown Dam and Reservoir
Granger Dam and Reservoir
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Proctor Dam and Reservoir
Somerville Dam and Reservoir
Stillhouse Hollow Dam and Reservoir
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 determine.
K. 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.
L. The term "System" shall mean the Authority's Water Supply System
and shall include certain of Authority's facilities and properties insofar as they are
related to water supply, to wit, as follows: Morris Sheppard Dam and
Possum Kingdom Reservoir, DeCordova Bend Dam and Lake Granbury,
Sterling C. Robertson Dam and Lake Limestone, and Authority's conservation
storage in the Federal Reservoirs, together with all future extensions,
improvements, enlargements and additions to and replacements of the
System, and all replacements 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 adopted pursuant to Section 14,
below, 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 are 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
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revenues or payments received from any persons or other legal entity or
entities in connection with such special facilities.
M. The term "System Operation Order" shall mean that certain order
of the Texas Water Commission (now TNRCC) or its predecessor dated July
23, 1964, as adjudicated by order of the Texas Water Commission (now
TNRCC) or its predecessor on June 26, 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.
N. The term "System Rate" shall mean the rate per acre -foot of
water established by Authority from time to time under the system -wide pricing
methodology for water made available to City from the System under this
Agreement.
O. 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 System Capital Related Costs.
P. The term 'Total System Billing Units" shall mean the total amount of
water (expressed in acre -feet per Calendar Year) 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 City 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 beneficial uses to the
extent Authority is not adequately compensated for any such requirement.
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3. EFFECTIVE DATE. The effective date of this Agreement is
September 1, 1996.
4. AVAILABILITY OF WATER. While this Agreement remains in force,
Authority agrees to make available to City for withdrawal from Lake an amount
of water not to exceed 10,000 acre -feet of water per Calendar Year. While
such water will be withdrawn from Lake, it may be accounted for by Authority
as provided by the System Operation Order, as modified by the Final
Determination. City represents, and Authority relies on such representation,
that all water to be made available by Authority under this Agreement to City
shall be used solely for municipal purposes.
5. DATE AND PLACE OF PAYMENTS. 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 Fiscal Year it will
have adopted budgets for Authority for said Fiscal Year and established the
System Rate for said Fiscal Year. Payments for each Fiscal Year may be made
under one of three payment options from which City will select at the beginning
of each Fiscal Year. Annual 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 the 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 by the Board at the time the Board sets the
System Rate and shall be just and reasonable.
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If the Authority increases the payment due from City during a Fiscal
Year, it shall notify City of any increased amount of payment due for the
remainder of the Fiscal Year and the increased amount shall be paid by City
(i) within 30 days after receipt of notice of the increase if City has already paid
all amounts otherwise due to the Authority for such Fiscal Year, or (ii) in
approximately equal installments added to any further installment amounts owed
by City for the remainder of such Fiscal Year if City has selected a payment
option which resulted in City still having payments due to Authority during the
remainder of such Fiscal Year.
6. UNCONDITIONAL NATURE OF PAYMENT OBLIGATION; PRICE.
A. City unconditionally agrees to pay Authority annually for the water
made available to City hereunder at a price equal to the product of multiplying
the System Rate times 10,000 acre -feet of water per Calendar Year agreed to
be made available to City by Authority from the System pursuant to this
Agreement regardless of whether, or how much of, said water is diverted and
used by City.
B. The System Rate has been established by the Board at a rate of
$20.21 per acre -foot of water made available annually to City from the System.
The Authority may, and it specifically reserves the right to, revise the System
Rate from time to time (usually prior to the start of each Fiscal Year) to reflect
changes in Authority's cost of service to make water available from the System
and to reflect changes in the number of Total System Billing Units. Authority
shall not increase the System Rate other than on a Fiscal Year basis except
for reasons sufficiently unforeseeable and of such a magnitude so as to make
such mid - Fiscal Year increase necessary in order to avoid jeopardizing the
viability of Authority's System operations. Such reasons include Force Majeure,
government legislation or regulation, or permit requirements.
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C. The System Rate shall be calculated from time to time (usually prior
to the start of each Fiscal Year) by the Board using accepted rate making
principles; shall be ascertained by utilizing the cash basis to determine an
annual revenue requirement considering the Total Annual Budgeted System
Costs and the Total System Billing Units as of the date the System Rate is
adopted by the Board; shall be based on Authority's cost of service as evidenced
by Authority's approved budgets; and shall be just, reasonable and non-
discriminatory.
7. 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 system. 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 issued by City now or hereafter
payable from the revenues of said system or systems.
8. INTEREST ON PAST DUE PAYMENT; COLLECTION. 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 lesser of the highest rate allowed by applicable law or 10
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 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
8
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 City 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 the default, may elect
to either (I) terminate the supply of water to City under this Agreement until the
nonpayment or other default is fully cured in accordance with the terms of this
Agreement or (ii) terminate this Agreement by providing written notice of such
nonpayment or other default and a statement of Authority's election to either
terminate the supply of water to City or terminate 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 or other default with
respect to which notice of termination of water supply or of this Agreement has
been given, shall not be cured by the date thus 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. DIVERSION RATE. The water to be made available to City under
this Agreement may be diverted from Lake at daily rates desired by City provided
that Authority shall not be required 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 Fiscal Year of the total number of acre -feet of water per year
then agreed to be made available for diversion by City.
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11. WITHDRAWAL FACILITIES. The provision of facilities for diversion
from Lake of the water agreed to be made available by Authority to City
hereunder shall be solely the responsibility of City. Authority shall use
reasonable efforts to assist City in obtaining an easement for right -of -way for any
new diversion facilities across United States Government lands at Lake at no
cost to City subject to the conditions that the design and location for such
facilities 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 City obtaining the easement or right -of -way, including a map of
convenient size locating the new point of diversion by course and distance from
a survey corner 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 and
maintain 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.
12. METERING. City agrees that, at its sole cost and expense, it shall
install, operate and maintain meters for the accurate measuring of all water
diverted by City from Lake 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 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
adjustments found thereby to be necessary. Authority shall have the right to
inspect and check the accuracy of City's meter or 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,
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such meter shall be tested promptly upon demand of Authority, the expense of
such test to be bome by Authority if the meter is found to be correct and by City
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 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; 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, City shall cause the same to be calibrated to register accurately.
13. REPORTING. City agrees that it will keep accurate records of the
daily readings from the meter or meters installed pursuant to Section 12, 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 withdrawn from Lake each day during the
preceding month (with daily diversions shown, if possible).
14. SYSTEM EXPANSION. City and Authority understand that Authority
may be requested to supply water to other future customers in a manner or in an
amount which may necessitate expansion or enlargement of or additions to the
System and that in connection with any such expansion, enlargement or
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addition, Authority may incur additional costs. City and Authority agree that
Authority may enter into any such additional long -term water sales contracts and
incur costs to expand, enlarge or add to the System to effect such sales so long
as Authority has conducted detailed engineering studies to accurately reflect the
cost of the expansion, enlargement or addition. The reasonable and prudent
costs incurred by Authority related to such expansion, enlargement or addition
shall be costs of the System.
15. 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. Authority, in accordance with applicable law or regulation, may
from time to time adopt reasonable rules and regulations relating to water
conservation. City 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 Drought Contingency Policy.
If required by applicable law or regulation or by Authority, City agrees to
implement a water conservation and drought management program in
accordance with a water conservation plan and that the water diverted by City
pursuant to this Agreement will be used in accordance with such conservation
plan. If required by applicable law or regulation City agrees that, in the event
City 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 City and the
third party providing for the establishment and implementation of a water
conservation program in compliance with such applicable law or regulation.
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16. WATER QUALITY. As a further condition of this Agreement, City
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 City 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
protection. If required by applicable law or regulation, City 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. SURPLUS WATER. City may not unilaterally cancel this Agreement
or reduce the amounts of water it is obligated to pay for under the terms of
Sections 4 and 6, 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 reasonable 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. Should Authority fail to find such a party at such price and
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on such terms, City may make a written request to Authority that Authority
reduce the amounts of water for which City is obligated to pay. If such request
is refused by Authority and if City is able to identify another party which is willing
to buy any part of the water supply designated by City as surplus, Authority
shall, unless it determines in good faith on the basis of judgment of the Board,
reasonably exercised, that there are valid reasons not to do so, sell the water
available as such surplus or the amounts thereof for which such party is willing to
pay at such price or prices and for such periods of times as such party and City
shall agree upon and shall apply all payments received from such party against
City's obligations to make payments to Authority under the provisions of this
Agreement. Except to the extent that City's obligations for payments to Authority
under the provisions of this Agreement are discharged by application of
payments from other parties pursuant to the sentence next preceding, or as a
result of cancellation of part of such obligation pursuant to this Section 17, City's
obligations to make payments to Authority shall not be reduced by the provisions
of this Section 17 unless Authority, in its sole discretion, grants City's request to
reduce City's obligations under this Agreement. City agrees that if Authority shall
in its discretion grant a request by any other purchaser of water from the
System to reduce its obligations that City will not impose any objection of any
nature thereto.
18. WATER SALES BY CITY. It is the understanding of the parties
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 water
available for resale as raw water on an interim basis prior to the time when it
shall be needed by City, Authority will, upon written request from City, use
reasonable efforts to sell such water and will apply the proceeds of any such
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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. If Authority fails to arrange such a sale within a
reasonable time after receipt of such written request and City is able to identify
another party which is willing to buy any part of the water which City desires to
make available as raw water on an interim basis, Authority shall, unless it
determines in good faith on the basis of the judgment of the Board, reasonably
exercised, that there are valid reasons not to do so, sell such part of such
interim surplus water as such party is willing to pay for at such price or prices
and for such periods of time as such party and City agree upon and shall apply
all payments received from such party against City's obligations to make
payments to Authority under the provisions of this Agreement. Except to the
extent that City's obligations for payments under this Agreement are discharged
by application of payments received from other parties pursuant to the sentence
next preceding, City's obligations to make payments to Authority shall not be
released by the provisions of this Section 18. No interim sale will be made which
will result in an increase in cost to City under this Agreement.
19. INTERBASIN TRANSFER. Water supplied under this Agreement
shall not be transferred or used outside of the Brazos River Basin unless City
obtains the express written consent of Authority and obtains all required
governmental approvals.
20. AVAILABILITY OF WATER; SHORTAGES AND YEARLY
REPORTS. Authority makes no guarantee that water will be available at any
particular time or place or that Lake will be maintained at any specific level at any
particular time. It is fully understood by the parties hereto that the level of Lake
will vary as a result of weather conditions beyond the control of Authority, the use
of water from Lake by other water customers of Authority and as a result of
releases made by the U.S. Army Corps of Engineers and that this instrument is
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merely an agreement to require Authority to make available water when and if
water is present in said lake, and to allow City to make withdrawals of the water
subject to the general law on distribution and allocation of water during
shortages of supply and in conformity with Authority's water rights from the
Texas Water Commission (now TNRCC) and the System Order.
Authority covenants that it will not sell or release any water from the
storage space in Lake or other parts of the System which would impair the ability
of Authority to furnish to City the quantities of water agreed to be provided
herein. In the event of a drought of greater severity than that previously
experienced, or if for any other reason water in Lake or the System becomes
in short supply, Authority agrees, and City covenants, that Authority may fairly
and equitably apportion and ration the available water supply from Lake or the
System among all its several customers, including City.
Authority, if requested, agrees to provide to City, on an annual basis,
information indicating the amount of water that Authority has committed from
Lake and the System and the amount of uncommitted water that Authority has
available for contract on a long -term basis from Lake and the System.
Additionally, Authority, if requested, will provide to City copies of Authority's
yearly audited financial reports and budgets as they are completed and
approved and made available to Authority.
Unless otherwise required by emergency or urgent public necessity (as
determined in the sole discretion of the Board, exercised in good faith), Authority
shall provide reasonable notice, not to exceed 40 days, to City of any meeting of
the Board to consider:
(i) adopting annual budgets of the Authority related to the System;
(ii) changing the System Rate;
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(iii) authorizing the issuance of any bonds related to the System or
expenditures for major capital improvements to the System if the
issuance of such bonds or expenditures of monies for such capital
improvements was not identified within the budgets or rate studies
identified in (i) and (ii) above.
In connection with such notice, if requested in writing by City, Authority
also shall promptly provide City with copies of any annual budgets, rate
analyses, official statement or expenditure summary to be considered by the
Board at such meeting.
21. OPERATION OF SYSTEM. The right of Authority to maintain and
operate the System and at any and all times in the future to impound and
release waters therefrom in any lawful manner and to any lawful extent Authority
may see fit is recognized by City; and, except as otherwise provided herein,
there shall be no obligation hereunder upon Authority to store or not to store or
to release or not to release any impounded waters at any time or to maintain any
waters at any specified level or to operate the System in any manner not in
compliance with applicable laws or regulations, Authority's water rights and
System Order. Authority makes no representation as to the quality of the water
in Lake or elsewhere in the System.
22. 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
17
water supply in Lake or other parts of the System, 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.
23. 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.
24. 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:
Authority: Brazos River Authority
P.O. Box 7555
Waco, Texas 76714 -7555
City: City of Round Rock
221 East 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.
25. OTHER REQUIREMENTS. This Agreement is subject to all
conditions, provisions and limitations included in Authority's water rights from the
18
Texas Water Commission (now TNRCC) and the System Order. 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 right to question or
contest any law, ordinance, order, rule or regulation of any governmental
authority.
26. 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.
27. ASSIGNMENT. This Agreement may be assigned by City only with
the written consent of Authority, which consent shall not be unreasonably
withheld or delayed.
28. TERM OF AGREEMENT. The term of this Agreement shall be for a
period ending August 31, 2036. This Agreement shall be extended thereafter at
the written request of City for so long as, and to the extent that, Authority
continues to have the right and ability to use storage in Lake for water supply
purposes sufficient to supply the amount of water to be made available to City
hereunder.
19
CITY OF - OUND ROCK BRAZOS RIVER AUTHORITY
By:
Name:
Title:
ATTEST: ATTEST:
w:lcont\lt\rndrock.swa
20
a zia,f
By:
Roy A. Roberts, P.E.
General Manager
Secretary (Assistant)
POLICY MEMORANDUM DATE: April 29, 1996
NUMBER 87
1. PURPOSE:
BRAZOS RIVER AUTHORITY
WACO, TEXAS
Water Sale Policy
To adopt a comprehensive water sale policy to ensure that sound public policy is
adhered to in an equitable distribution of scarce raw water resources.
2. BACKGROUND:
As a water conservation agency of the State, the Brazos River Authority has
statutory responsibility to develop and conserve water supplies and make those
supplies available for beneficial use. To ensure beneficial use, Brazos River
Authority has traditionally restricted resale of raw water. As population growth
continues, resulting in increased demands on limited supplies, the Authority will
need to take additional steps to ensure beneficial and equitable use of those
limited supplies. While the Brazos River Authority currently has plentiful raw
water supplies for the Brazos River Basin as a whole, certain reservoirs, such as
Stillhouse Hollow Reservoir, Lake Proctor, Lake Granger and Lake Limestone,
may soon have demands in excess of supply, and certain reservoirs are already
fully committed, such as Lakes Belton and Georgetown. Therefore, the Board of
Directors of Brazos River Authority deems it prudent to adopt a water sale policy
that will assist the Authority in meeting its regional water supply planning
functions and will limit the possibility of raw water speculation.
3. POLICY:
It is the policy of Brazos River Authority to encourage the proper planning for and
wise use of the raw water resources of the Brazos River Basin. Therefore, the
following procedures are adopted to help ensure that sound public policy is
adhered to in making an equitable distribution of scarce raw water resources.
4. PROCEDURE:
Any water purchase request received after April 1, 1996, for 250 acre - feet or
more of water per year under a long -term agreement, whether from a specific
reservoir or from the reservoir system, will be evaluated by staff to determine if
an actual, foreseeable beneficial use of the water can be demonstrated. The
evaluation process will differ slightly for a municipal use request to which the
Texas Water Development Board (TWDB) projections would apply and for
requests for industrial, mining, or irrigation uses.
For municipal use requests, staff will review the latest version of TWDB water
demand projections for the service area (identified by the requesting entity)
associated with the request and information concerning long -term need provided
by the entity. If TWDB projections and /or information concerning long -term need
provided by the entity confirm the need in the entity's service area, staff will then
further examine and confirm the entity's ability to provide service to areas
associated with the purchase request.
For industrial, mining, or irrigation use requests, the requesting entity must
provide documentation to show Tong -term need for the entity's business
operations and that no unreasonable waste of water is associated with those
business operations.
Should the staffs evaluation result in a determination that the purchase request
is not reasonably likely to result in the purchased raw water being put to
beneficial use by the purchaser in a reasonable time frame or will result in
unreasonable waste of water, staff will recommend that the purchase request not
be approved. All such staff determinations will be brought to the Board of
Directors of Brazos River Authority for final action.
w:lpoticieslpol 87.doc
2
ROY A. ROBERTS, P.E.
General Manager
Policy Source: Board Meeting
April 29, 1996
Brazos River Authority
Mr. Robert L. Bennett
City Manager
City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Dear Mr. Bennett:
RECEIVED AUG .1 21996
9400 Cobbs Drive • P.O.Box7555 • Waco, Texas 76714-7555
817-776-1441 • FAX 817 - 772-5780
QUALITY • CONSERVATION • SERVICE
August 8, 1996
Pursuant to your letter of July 11, 1996, please find enclosed duplicate originals
of the System Water Supply Agreement Between Brazos River Authority And
City Of Round Rock. Please note the System Rate for Fiscal Year (FY) 1997 is
$20.21 an acre -foot of water per year. After holding the System Rate at $19.72
an acre -foot of water per year for FY 1995 and FY 1996, the Authority's Board of
Directors approved a 2.5% increase for FY 1997. Since the inception of the
System Rate five years ago, the average annual increase has been 1.1 %, well
below the rate of inflation for that period.
Also, please find enclosed a copy of the Water Sale Policy recently adopted by
the Authority's Board. The Policy requires staff evaluation of requests for long-
term water contracts in excess of 250 acre -feet of water per year. Staff is to
determine if actual, foreseeable beneficial use of the requested water can be
demonstrated.
Fortunately, the North Central Region Trans -Texas Studies being conducted by
the Texas Water Development Board (TWDB) provide data to evaluate requests
made by Williamson County entities. A preliminary review by staff shows the
TWDB projections support the City's request for the purchase of 10,000 acre -feet
of water per year. Therefore, I am sending copies of the System Agreement that
are ready for execution by the City. Please have the appropriate people sign for
the City and return both originals to me. After staff has completed its review of
the TWDB projections and the City's ability to provide service to areas
associated with the purchase request, and if such review supports a
determination that the City's request meets the guidelines enumerated in the
Authority's Water Sale Policy, the Authority's General Manager will execute both
originals and return one to you for the City's files.
Mr. Robert L. Bennett
Your attention is called to Section 24, page 18 of the System Agreement where
the City's mailing address is given. If you wish correspondence to be sent to
another address, please let me know and I will change that page of the System
Agreement. Also, in Section 28, page 19 of the System Agreement, I have made
the term of the agreement 40 years, ending August 31, 2036. If this is not
satisfactory, please let me know and I will change the term.
If you have any questions concerning the System Agreement, please contact
me. Thank you for your assistance in this matter.
MEF:jwj
Enclosures
w:lconticortkndrock.ltr
Sincerely,
MICHAEL E. FIELD
Executive Counsel
August 8, 1996
Page 2
DATE: September 10, 1996
SUBJECT: City Council Meeting, September 12, 1996
ITEM: 10.A Consider a resolution authorizing the
Mayor to execute an agreement with the
Brazos River Authority for additional
reserve water in Lake Stillhouse Hollow
STAFF RESOURCE PERSON: Jim Nuse and /or Steve Sheets
STAFF RECOMMENDATION: Approval of the resolution
The City needs to reserve additional water in Lake Stillhouse
Hollow. The attached agreement provides for the reservation of an
additional 10,000 acre feet of water.
C. \WPDOCS\ ACITY \SLOSSWSS \SLUSW88T.WYp /e1e
Brazos River Authority
Mr. Robert L. Bennett, Jr.
City Manager
City of Round Rock
221 East Main Street
Round Rock, Texas 78644
Dear Mr. Bennett:
D ECEIVED NOV 2 0 1996
QUALITY • CONSERVATION • SERVICE
November 13, 1996
I am enclosing an executed original of the System Water Supply Agreement
Between Brazos River Authority And City Of Round Rock for your files.
If you have any questions, please contact me. Thank you for your assistance in
this matter.
MEF:jwj
Enclosures
w:Iconticorr mdrek.ret
Sincerely,
MICHAEL E. FIELD
Assistant General Manager
and Executive Counsel
4400 Cobbs Drive • P.O.Box7555 • Waco, Texas 76714 -7555
817 - 776-1441 • FAX 817-772-5780