Res 150-2006 11/21/2006 RESOLUTION NO. I S� - avOO�
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA
FALLS, TEXAS APPROVING RENEWAL AND EXTENSION OF
CONTRACT FOR OPERATION AND MAINTENANCE OF JOINTLY
OWNED LAKE AND CANAL SYSTEMS BY THE CITY OF WICHITA
FALLS AND WICHITA COUNTY WATER IMPROVEMENT DISTRICT
NO. 2; FINDING AND DETERMINING THAT THE MEETING AT WHICH
THIS RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS
REQUIRED BY LAW.
WHEREAS, the City of Wichita Falls has previously entered into an agreement
with the Wichita County Water Improvement District No. 2 for operation and
maintenance of Lake Kemp, the Diversion reservoir, main canals, laterals and other
facilities used in connection therewith; and
WHEREAS, the City of Wichita Falls and the Wichita County Water
Improvement District No. 2 are willing to extend the terms and conditions of the contract
dated October 1, 1998 for an additional two-year term commencing on September 30,
2006.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
SECTION 1. The renewal and extension of the contract for operation and
maintenance of jointly owned lake and canal systems by the City of Wichita Falls and
Wichita County Water Improvement District No. 2 is hereby approved.
SECTION 2. It is hereby officially found and determined that the meeting at
which this resolution was passed was open to the public as required by law.
PASSED AND APPROVED this the 21st day of November, 2006.
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MAYOR
ATTEST:
ty Clerk
STATE OF TEXAS §
COUNTY OF WICHITA §
CONTRACT FOR OPERATION AND MAINTENANCE
OF JOINTLY OWNED LAKE AND CANAL SYSTEMS
BY CITY OF WICHITA FALLS AND WICHITA COUNTY
WATER IMPROVEMENT DISTRICT NO. 2
This agreement, made and entered into by and between the City of
Wichita Falls, Texas, hereinafter called "City," and Wichita County Water
Improvement District No. 2, hereinafter called "District," both being municipal and
political corporations and subdivisions of the State of Texas, each acting herein
by and through its respective officers hereunto duly authorized,
WITNESSETH:
WHEREAS, City and District, who are the joint owners of Lake Kemp, the
Diversion Reservoir, main canals, laterals, and other facilities used in connection
therewith, make and enter into this agreement for the maintenance and operation
thereof for the mutual benefits to be derived therefrom by each of these
contracting parties, and for the consideration hereinafter set out, the covenants
and agreements to be paid, kept and performed, it is agreed by the parties as
follows:
1. Notwithstanding anything herein contained, it is agreed that no
construction or interpretation of any of the terms of this agreement shall be
construed to alter, change or modify the ownership of the jointly owned facilities,
including the ownership of or rights to the use of the waters in Lake Kemp and
the Diversion Reservoir, but that such ownership shall remain the same as set
out in a certain agreement made and entered into by and between Wichita
County Water Improvement District No. 1 and Wichita County Water
Improvement District No. 2 dated April 4, 1923. As established by that
agreement, City owns an undivided 66.11 % interest in said facilities, and District
owns 33.89% interest.
2. As provided in the said contract dated April 4, 1923, District shall
have the full use of sufficient water for the irrigation of lands in said District. City
shall have the full use of sufficient water required by it for municipal purposes.
City shall have and retain the right to the prior use of the water of said entire
system to the extent of a supply of water sufficient for the uses of the City, not to
exceed a reserve supply of 50,000 acre feet of stored water, so that if at any time
the supply of water available to said system in the reservoirs should be used to
the extent that only that amount of water is available or in storage, then same
shall be reserved for the uses of said City. If the storage reservoir is at any time
emptied, then all waters in the Division Reservoir shall be reserved for the use of
the City.
3. Except as set out in the two paragraphs immediately preceding, this
agreement is made and entered into in lieu of and instead of any and all
contracts and agreements which may have heretofore been made and entered
into by City and District or District and Wichita County Water Improvement
District No. 1.
4. It is expressly not the intent of City and District to create, participate
in, operate or maintain a joint enterprise by entering into this agreement. As a
part of the consideration of this agreement, District shall have total and compete
control of all maintenance, operational, design and improvement functions of the
jointly owned facilities, to the complete exclusion of the City, regardless of
ownership interests, except as provided herein. It is agreed that District shall,
when requested by City, release so much water as is required by City for its
purposes.
District shall have total and complete control over the hiring and firing of its
employees, as well as the sole right of control over its employees, to the
complete exclusion of City.
District and City acknowledge the only commonality of purpose in the
ownership of the jointly owned facilities is the furnishing of water, as required,
from Lake Diversion to City and West Texas Utilities, with the transport, delivery
and sale of irrigation water being the sole purpose and responsibility of District.
City shall not participate in revenues from the sale of irrigation water.
5. The term of this agreement shall be for a period of two (2) years
from October 1, 2006.
6. Further, as a part of the consideration for this agreement, City shall pay
to District $157,500.00 per year for each year of the contract. Such payments
shall be made in monthly installments of $13,125.00 each; the first such monthly
installment shall be paid on or before October 15, 2006, and a like monthly
installment shall be paid on or before the 15� day of each month thereafter
during the term of this agreement.
7. In addition to all other consideration herein agreed upon, City and
District with the United States Army Corps of Engineers shall annually agree to
and imptement a maintenance and operation plan and proposed budget for Lake
Kemp separately from the operation and maintenance activities and division of
costs as covered by this agreement. It is mutually agreed and understood that
costs to implement the Lake Kemp operation and maintenance plan shall be
borne as follows: Corps of Engineers shall bear 51.6% of the total cost, District
shall bear 66.11 % of the remaining local share of 48.4%, and the City shall bear
33.89% of the remaining local share of 48.4%. District shall invoice, with back-up
material, City and Corps of Engineers monthly for the Lake Kemp operation and
maintenance costs.
8. Any expense of unforeseen and emergency repairs to Lake Kemp, the
Diversion Reservoir and the main canals occasioned by an act or acts of God, as
that term is usually defined, in addition to all other consideration herein agreed
upon, shall be borne by both parties in proportion to their joint ownership therein;
that is, City shall bear 66.11 % and District shall bear 33.89%. Such repairs shall
be recommended so�ely by District and before the repairs provided for in this
paragraph are made, they shall be approved by both City and District.
9. The proceeds of the sale of water shall be collected by District and
shared equally by City and District, with the exclusion of proceeds from the sale
of irrigation water for which District is exclusively entitled. The accounting and
distribution of shared proceeds shall be made quarterly, providing that any water
sales contracts shall be mutually agreed upon by District and City before the
same shall be binding.
10. District shall, during the term of this agreement, keep its accounting
records to conform to the fiscal year of City and such records shall be open for
inspection by City at all times. Such records shall continue the chart of accounts
as now used. There shall be made annually an outside audit by an auditor
acceptable to both City and District, and a copy of such audit shall be submitted
to City within ninety (90) days after the close of District's fiscal year.
11. If either party hereto shall become dissatisfied with the terms of this
agreement, excluding that part of this agreement contained in paragraph 1
hereof, then in such event, such dissatisfied party shall, only during the second
year of the term of this agreement and on or prior to six months preceding the
termination date, notify the other party in writing setting forth specifically its
grounds therefore, immediately following which the parties shall attempt to
renegotiate this contract by mutual agreement. If on or prior to four months of
the expiration of the second year term the parties are unable to agree upon a
renegotiation, or having failed or neglected to agree upon a renegotiation, the
matter or point of disagreement shall be submitted to a Board of Arbitration in the
manner provided by law, such Board consisting of the City Manager of City, the
General Manager of District, and a third disinterested and unbiased person
selected by a majority of the district judges of Wichita County, Texas. The
decision or renegotiation of this contract by such Board shall be final and binding
upon the parties hereto unless the substantive legal rights of either party are
violated.
12. City and District jointly owning the facilities, anticipating their
continued ownership perpetually in themselves, their successors or assigns,
recognize their ownership responsibility one to the other, and by this and the
immediately preceding paragraph, it is meant that this ownership responsibility
shall not cease or fail but that during such joint ownership of such facilities there
shall exist an operation agreement between the parties hereto reached by mutual
agreement or arbitration as the case may be.
13. The District has occupied office space in City-owned structures for
many years. The City will, during the term of this agreement, authorize the
District to occupy office space at 402 East Scott. There will be no charge to the
District for such office space, but the District will in turn, and as consideration, not
levy any taxes against the City for City-owned property within the District during
the term of this agreement and for all previous years in which the District has
occupied City-owned office space. The City, after reasonable notice to the
District, shall be allowed to furnish comparable facilities mutually agreeable to
both parties at a different location if City needs this space for other City
purposes, or if City disposes of such property. Such comparable facilities shall
be furnished under the same terms and conditions set forth above.
IN WITNESS WHEREOF, the parties have caused this agreement to be
executed by their duly authorized officers on this the day of ,
2006.
CITY OF WICHITA FALL, TEXAS
By:
City Manager
ATTEST:
City Cierk
WICHITA COUNTY WATER
IMPROVEMENT DISTRICT No.
2
By:
President, Board of Directors
ATTEST:
Secretary, Board of
Directors
12. City and District jointly owning the facilities, anticipating their
continued ownership perpetually in themselves, their successors or assigns,
recognize their ownership responsibility one to the other, and by this and the
immediately preceding paragraph, it is meant that this ownership responsibility
shall not cease or fail but that during such joint ownership of such facilities there
shall exist an operation agreement between the parties hereto reached by mutual
agreement or arbitration as the case may be.
13. The District has occupied office space in City-owned structures for
many years. The City will, during the term of this agreement, authorize the
District to occupy office space at 402 East Scott. There will be no charge to the
District for such office space, but the District will in turn, and as consideration, not
levy any taxes against the City for City-owned property within the District during
the term of this agreement and for all previous years in which the District has
occupied City-owned office space. The City, after reasonable notice to the
District, shall be allowed to furnish comparable facilities mutually agreeable to
both parties at a different location if City needs this space for other City
purposes, or if City disposes of such property. Such comparable facilities shall
be furnished under the same terms and conditions set forth above.
IN WITNESS WHEREOF, the parties have caused this agreement to be
executed by their duly authorized officers on this the day of ,
2006.
CITY OF WICHITA FALLS, TEXAS
By:
City Manager
ATTEST:
City Clerk
WICHITA COUNTY WATER
IMPROVEMENT DISTRICT No.
2
By:
President, Board of Directors
ATTEST:
Secretary, Board of
Directors