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Res 1471 10/8/1973RESOLUTION NO. /27/7/ RESOLUTION APPROVING CONTRACT BETWEEN CITY OF WICHITA FALLS AND WICHITA COUNTY WATER IMPROVEMENT DISTRICT NO. 2 CONCERNING OPERATION OF LAKE KEMP AND OTHER JOINTLY OWNED FACILITIES USED IN CONNECTION THEREWITH. 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 , providing for the operation of Lake Kemp, Diversion Reservoir, the main canals, laterals and other facilities used in connection therewith, is hereby approved, and the City Manager is authorized to execute the same for the City of Wichita Falls. PASSED AND APPROVED THIS THE 8TH DAY OF OCTOBER, 1973. A M A Y O R ATTEST: City Clerk i t. THE STATE OF TEXAS ) COUNTY OF WICHITA ) r THIS AGREEMENT, made and entered into by and between the City of Wichita IFalls, 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 Iofficers hereunto duly authorized. W I T N E S S E T H : 11 WHEREAS, the City and the District are the joint owners of Lake Kemp, the aDiversion 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: VI 1) Notwithstanding anything herein contained, it is agreed that no construe- 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, butgp 1 that such ownership shall remain the same as set out in a certain agreement made and 1 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 Iowns 33. 89% interest. 2) As provided in the said contract dated April 4, 1923, District shall have 0 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- in t, taro the right to the prior use of the water of said entire system to the extent of a supply rof water sufficient for the uses of the City, not to exceed a reserve supply of 50, 000 acre 1 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 Diversion 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 the City and the District or the District and Wichita County Water Improvement District No. 1. 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 City for its purposes. 5) The term of this agreement shall be a period of five years from October 1st, 1973. 6) Further, as a part of the consideration for this agreement, the City shall pay to the District monthly beginning in October of each year that portion of 90,000 that equals one-twelfth (1-12th) of the same escalated to three and one-half percent (3-1/2%) per annum during the term of this agreement as follows:p P g g First Year 1973-1974) 90, 000 Second Year (1974-1975) 93, 150 Third Year 1975-1976) 96,410 at Fourth Year (1976-1977) 99, 785 Fifth Year 1977-1978) 103, 278 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, 1973; 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. r 7) In addition to all other consideration herein agreed upon, the City and District with the U. S. Corps of Engineers shall annually agree to and implement a 2- maintenance and operation plan and proposed budget for Lake Kemp separately from 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 Foperation 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 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%. Before such 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 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, during the terms of this agreement, keep its ac- counting g g P 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 outside 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- 3- or r 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 1 renegotiation, the matter or point of disagreement shall be submitted to a Board of 1 Arbitration in the manner provided by law, such Board consisting of the City Manager of the City, the General Manager of the District and a third disinterested and unbiased person selected by a majority of the District Judges of Wichita County, Texas; the Idecision or renegotiation of this contract by such Board to be final and binding on the parties hereto unless the substantive legal rights of either party are violated. I 12) The City and the 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 immedi- 1 ately preceding paragraph it is meant that this ownership responsibility shall not cease 4 or 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 as the case may be. 1 13) If neither party becomes dissatisfied with this agreement prior to the expiration of the term as above provided, this contract is automatically extended or 1 renewed for an additional five years with the fixed annual payment for the first year of a / I , 'l 1 such term in the sum of $103,278 escalated in the amount of no more than three percent 3%) per annum. 1 WITNESS the undersigned this day of 1973. THE CITY OF WICHITA FALLS, TEXAS W City Manager II ATTEST: 4::01 r City Clerk FWICHITA COUNTY WATER IMPROVEMENT DISTRICT NO. 2 F By President, Board of Directors ATTEST: Secretary, Board of Directors