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Res 2181 7/11/1978RESOLUTION NO. rJ/f/ RESOLUTION APPROVING CONTRACT WITH WICHITA COUNTY WATER IMPROVEMENT DISTRICT NO. 2 CONCERNING OPERATION AND MAINTENANCE OF LAKE KEMP, DIVERSION RESERVOIR AND THE CANAL SYSTEM. BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF WICHITA FALLS, TEXAS, THAT: That certain contract, a copy of which is attached hereto, between the City of Wichita Falls and Wichita County Water Improvement District No. 2, which provides for operation and maintenance of Lake Kemp, Diversion Reservoir and the canal system for a period of five years from October 1, 1978, is hereby approved, and the City Manager is authorized to execute the same for the City of Wichita Falls. PASSED AND APPROVED this the 11th day of July, 1978. MAYOR ATTEST: City Clerk 217/ fi A THE STATE OF TEXAS COUNTY OF WICHITA 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 their respective officers hereunto duly authorized. WITNESSETH : WHEREAS, the City and the District are the joint owners of Lake Kemp, the Diversion Reservoir, main canals, laterals, and other facilities used in connection therewith, and 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 as follows: 1) Notwithstanding anything herein contained, it is agreed that no construc- tion 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 Reservoirs, 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 1. 1923. As established by that agreement, City owns an undivided 66.11% interest in said facilities, and District owns 33.89% interest. arc „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 full use of sufficient water required by it for municipal purposes. City shall have and re- Lain 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 11 i/7 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 Diversion Reservoir shall be reserved for the use of the City. Mi 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 the City and the District or the District and Wichita County Water Improvement District No. 1. IliII 4) As a part of the consideration for this contract, the District shall have full and complete control of all the operations of said jointly owned facilities, to the complete exclusion of the City, except as provided herein. It is understood and agreed that District shall, when requested by City, release so much water as is required by 5,City for its purposes. M. 5) The term of this agreement shall be a period of five year from October 1st, 1978.. 5 6) Further, as a part of the consideration for this agreement, the City Nishall pay to the District monthly beginning in October of each year one-twelfth (1-12th) of each of the annual payments as indicated below: First Year 1978-1979) - $110,262 Second Year (1979-1980) - 116,878 Third Year 1980-1981)123, 890 Fourth Year (1981-1982)131,323 I Ili Fifth Year 1982-1983)139,203 Such monthly payments shall be paid over a period of sixty (60) months by the City to the District. The first monthly installment shall be paid on or before October 15, 1978 thereafter, a monthly installment shall be paid on or before the 15th day of each month thereafter during such calendar year under the terms of this agreement. 7) In addition to all other consideration herein upon,agreed on hagreedithe City and 1[ District with the U. S. Corps of Engineers shall annually agree to and implement a maintenance and operation plan and proposed budget for Lake Kemp separately from 1 2_ operation and maintenance activities and division of costs as covered by this agree- ment. It is mutually agreed and understood that costs to implement the Lake Kemp Oroperation and maintenance plan shall be borne as follows: U. S. Corps of Engineers - 51.6% of total cost; District - 66. 11% of the remaining local share of 48.4%; City - 33.89% of the remaining local share of 48. 4%. The District shall invoice, with back-up material, the City and Corps of Engineers monthly for the Lake Kem p operationeration 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% Beforeefore such repairs provided for in this paragraph are made, they shall be approved by both City and District. 1 9) The proceeds of the sale of water shall be collected by the District and shared equally by the City and the District,, .accounting, and distribution thereof to be made quarterly, providing that any water sales contracts shall be mutually agreed upon by the District and the City before the same shall be binding. 10 The District shall,) 11, during the terms of this agreement, keep its ac- counting records to conform to the fiscal year of the City and such records shall be opened for inspection by the City at all times. Such records shall continue the chart of accounts as now used. There shall be made annually an audit by an auditor acceptable to both City and District, and a copy of such audit shall be submitted to City within ninety days after the close of District's fiscal year. 11) If either party hereto shall become dissatisfied with the terms of their agreement, excluding that part of this agreement contained in paragraph one (1) hereof, then in such event, such dissatisfied party shall, only-during the fifth 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 agree- ment. If on or prior to four months of the expiration of the five-year term the parties are unable to agree upon a renegotiation, or have failed or neglected to agree upon a 3- c 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 41 of the City, the General Manager of the District and a third disinterested and unbiased Pperson selected by a majority of the District Judges of Wichita County, Texas; the decision or renegotiation of this contract by such Board to be final and binding on the Itparties hereto unless the substantive legal rights of either party are violated. 12) The City and the District jointly owning the facilities, anticipating 4 their continued ownership perpetually in themselves, their successors or assigns, recognize their ownership responsibility one to the other, and by this and the immedi- ately preceding paragraph it is meant that this ownership responsibility shall not cease NIor fail but that during such joint ownership of such facilities there shall exist an oper- ation agreement between the parties hereto reached by mutual agreement or arbitration atas the case may be. 01 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 0 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 iifor all previous years in which the District has occupied City-owned office space. 0 WITNESS the undersigned this day of 1978. NITHE CITY 0±' V,IL,Ui1A FALLS, TEXAS t t..• City ManagerATTEST: v City Clerk 0 WICHITA COUNTY WATER IMPROVEMENT DISTRICT NO. 2 t 0 By: President, Board of DirectorsATTEST: Secretary, Board of Directors