Res 1240 11/2/1971RESOLUTION NO.
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 the City of Henrietta, concern-
ing the respective water rights of the two cities on the Little
Wichita River, is hereby approved, and the Mayor is authorized to
execute the same for the City of Wichita Falls .
PASSED AND APPROVED THIS the 2nd day of November, 1971.
M A Y O R--
74.
1.Ord4476fdi'de.
ATTEST:
City Clerk
CONTRACT CONCERNING RESPECTIVE WATER RIGHTS
OF WICHITA FALLS AND HENRIETTA ON THE LITTLE WICHITA RIVER
THIS CONTRACT made and entered into the day of
1971, by and between the City of Wichita Falls,
Texas, hereinafter called Wichita Falls, and the City of Henrietta,
Texas, hereinafter called Henrietta,
WITNESSETH:
WHEREAS, Wichita Falls appropriates water from the Little
Wichita River as authorized under Texas Water Rights Commission Per-
mits No. 1363 and No. 2015; and,
WHEREAS, Henrietta appropriates water from the Little
Wichita River as authorized under Texas Water Rights Commission
Permits No. 276, No. 913 and No. 1678; and,
WHEREAS, past experience has shown that the respective
rights of Wichita Falls and Henrietta as granted by the various
permits mentioned above cannot be fully exercised independently
from one another, and in fact, the full exercise of these rights
can only be accomplished in an efficient manner by a systematic,
cooperative program of use of the various storage and diversion
facilities of both cities; and,
WHEREAS, the past and present willingness for friendly
cooperation between the respective cities is evidenced by Resolution
No. 454 which was adopted by Wichita Falls on May 8, 1961, a copy
of which is attached hereto as Exhibit A, and by releases of water
in the past by Wichita Falls to overcome potential critical water
shortages in Henrietta; and,
WHEREAS, it is evident that with the future increase
in water demands of the two cities on the Little Wichita River,
the situations of potential conflict and the need for close coopera-
tion with a well defined working agreement to avoid such conflict
and perpetuate the harmonious relationship of the respective cities
will be greatly increased;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that for
and in consideration of the execution and performance of the mutual
covenants herein set forth, Wichita Falls and Henrietta do hereby
covenant and agree as follows:
I.
CONTROL AND MEASUREMENT OF WATER
This agreement contemplates that the facilities for the
release and measurement of water as required under Sections 5 B and
5 D of Water Permit No. 2015 have been or will be constructed by
and at the sole expense of Wichita Falls. In the event that modifi-
cations to these facilities or other auxiliary facilities are found
necessary to assure proper control of the quantity and quality of
the water to be released, the cost of such modifications or auxiliary
facilities shall be borne by Henrietta and the design shall be mutually
acceptable to both parties, subject to the requirements and approval
of the Texas Water Rights Commission. Henrietta shall provide at its
sole expense an off-channel reservoir with a capacity afat least
310 acre feet, and an on-channel diversion pump with a capacity of
at least 10 c .f.s. , as required by their permit. Henrietta shall
provide a gauge to record the water surface elevation in the off-
channel reservoir, together with accurate area-capacity curves for
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computing the amount of water in the reservoir. Henrietta shall
also provide a meter or meters for measuring the rate and volume
of water diverted from the Little Wichita River at each diversion
point.
II.
KEEPING OF RECORDS
The parties shall keep records of the following data
on a daily basis, which records shall be reported no less often
than monthly, to-wit:
1) Acre feet of daily inflow into Lake Kickapoo.
2) Acre feet of daily diversions from Lake Kickapoo.
3) Acre feet of daily inflow into Lake Arrowhead.
4) Acre feet of daily releases below Lake Arrowhead.
5) Acre feet daily and rate of flow to Henrietta 's
diversion points.
6) Daily water surface elevations and acre feet of
water in Lake Kickapoo.
7) Daily water surface elevations and acre feet of
water in Lake Arrowhead.
8) Daily water surface elevations and acre feet of
water in Henrietta 's off-channel reservoir.
9) Acre feet of daily diversion from Lake Arrowhead.
10) Daily acre feet diverted and rate of diversion from
the river at Henrietta 's diversion points.
III.
HENRIETTA'S WATER RIGHTS IN LITTLE WICHITA RIVER
In any calendar year, Henrietta is entitled to divert a
maximum of 1,459 acre feet of water from the Little Wichita River
based on calculations of the Director of Water Development of the City
of Wichita Falls and the Water Superintendent of the City of Henrietta.
As there are approximately 205 square miles of drainage area below Lake
Arrowhead and above Henrietta 's diversion points, a part, and in some
years all, of this 1,459 acre feet of water will be provided by runoff
from the Little Wichita River watershed below Lake Arrowhead.
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In order to conserve the water in the Little Wichita River, and
to prevent the unnecessary loss or waste of any such water, Henrietta
will divert water from their on-channel reservoir at the permit rate
of 10 c.f.s. or less any time there is water in the on-channel reservoir
and their off-channel reservoir is less than 95% full. At anytime it is
necessary for the City of Henrietta to divert water from their on-channel
reservoir and a rate of diversion of less than 10 c.f.s. is required to
satisfy prior water right downstream the actual rate of diversion shall
be ,that agreed to by City of Wichita Falls Director of Water Development
and the City of Henrietta Water Superintendent.
In any calendar year in which Henrietta is unable to divert
1,459 acre feet of water from runoff from the watershed below Lake
Arrowhead, they shall be entitled to have released free of cost from
Lake Arrowhead and/or Lake Kickapoo an amount of water equal to no more
than the difference between 1,459 acre feet and the amount they were able
to so divert, which releases shall come only out of the following waters,
if any such waters are impounded by Wichita Falls.
1) That part of any inflow that calendar year into Lake
Kickapoo, up to a maximum of 247.83 acre feet, which Henrietta could
have diverted at the permit rate of 1 c.f.s. and stored in its off-channel
reservoir if Lake Kickapoo and Lake Arrowhead had not existed (to satisfy
Henrietta 's Permits Nos. 276 and 913).
2) That part of any inflow that calendar year into Lake
Kickapoo which would have spilled had Wichita Falls not diverted water
from Lake Kickapoo that clendar year, and which Henrietta could have
diverted at the permit rate of 10 c.f.s. and stored in its off-channel
reservoir, if Lake Arrowhead had not existed.
3) That part of any inflow that calendar year into Lake
Arrowhead (including spills from Lake Kickapoo) which Henrietta could
have diverted at the permit rate of 10 c.f.s. and stored in its off-channel
reservoir if Lake Arrowhead had not existed.
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IV.
FREE RELEASES ON A CALENDAR YEAR BASIS
It is understood and agreed that the free releases of
water to which Henrietta may be entitled, as set out in paragraph
III above, shall be figured on a calendar year basis; if Henrietta
is entitled to any free releases at the end of any calendar year,
such rights shall expire at that time, and shall not be carried
over to the following calendar years .
Henrietta may receive the free releases of water at any
time during the calendar year, until such time during the year when
the total amount of water diverted by Henrietta 'from the Little
Wichita River (from runoff below Lake Arrowhead, from spills from
Lake Arrowhead, and from free releases) amounts to 1,459 acre feet.
V.
RELEASE OF WATER FROM LAKE ARROWHEAD
Wichita Falls agrees that at any and all times while
this contract is in force and when there is water impounded in Lake
Arrowhead at or above the levelrequired for gravity flow through
the service outlet of the Lake Arrowhead dam, upon the presentation
of a written request for release of water by Henrietta to Wichita
Falls, such water shall be released for use by Henrietta at the time
and in the amount as stated in such written request, subject to the
following limitations and conditions:
1) Each written request for release of water shall
state the desired time of commencing the release, the desired rate
of flow in cubic feet per second or million gallons per day, the
total amount desired in acre feet or million gallons, and it shall
be signed by a person authorized to make such requests by specific
resolution of the city council of Henrietta.
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2) Requests for release of water shall be delivered
to the office of the Director of Water Development for Wichita Falls
at least 48 hours prior to the time such release is to be commenced.
3) The total amount of water to be released under this
agreement in any one calendar year, free of cost to Henrietta, shall
not exceed the amount of water which Henrietta is entitled to have
released as set out in paragraph III above. If Henrietta desires
thaf additional water be released, such water will be released from
Lake Arrowhead only on the express direction of the Board of Aldermen
of Wichita Falls; Henrietta shall pay for such additional releases
of water as set out in paragraph VI.
VI.
PAYMENT BY HENRIETTA FOR ADDITIONAL RELEASES
In the event Henrietta requests releases of water in
addition to the amount to which they are entitled free of cost as
set out in paragraph III, Henrietta agrees to pay to Wichita Falls
for such additional releases at the rate of five cents per thousand
gallons, which payment shall be made within fifteen days after hav-
ing been billed for such releases. In the event Wichita Falls is
required to make expenditures for capital improvements at Lake
Arrowhead or Lake Kickapoo, or the costs of operation and mainte-
nance of such lakes increase, this price to be paid for additional
releases by Henrietta may be increased proportionately.
VII.
FORCE MAJEURE
If by reason of force majeure (which shall include break-
age or accidents to machinery, pipelines or canals, partial or entire
failure of water supply and inability on the part of Wichita Falls to
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deliver water hereunder or Henrietta to receive water hereunder
on account of any other causes not reasonably within the control
of the party claiming such inability) , either party hereto shall
be rendered unable, wholly or in part, to carry out its obligations
under this agreement, then if such party shall give notice and full
particulars of such force majeure in writing to the other party within
a reasonable time after the occurrence of the event or cause relied
on, the obligation of the party giving such notice, so far as it is
affected by such force majeure, shall be suspended duringring the con-
tinuance of the inability then claimed, but for no longer period,
and such party shall endeavor to remove or overcomesuch inability
with all reasonable dispatch.
VIII.
ARBITRATIONRATION
In the event that any dispute concerning this contract
arises between Wichita Falls and Henrietta, which dispute cannot be
settled in a mutually acceptable manner, then the parties will sub-
mit the dispute to the Texas Water Rights Commission for a decision.
If either party believes that its substantive legal rights have
been violated by such decision, it may seek relief in the proper
court.
IX.
TERM OF AGREEMENT
The term of this contract shall be for the period during
which the above described Texas Water Rights Commission permits,
making water allocations from the Little Wichita River to Wichita
Falls and Henrietta, remain in force and effect.
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IN TESTIMONY WHEREOF, the parties hereto have caused
these presents to be executed by their officers, duly authorized
by proper action of their governing bodies, as of the day and
year first set out above.
CITY OF WICHITA FALLS, TEXAS
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By
MAYOR .
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney of Wichita
Falls, Texas
CITY OF HENRIETTA, TEXAS
By
ATTEST:
City Secretary
APPROVED AS TO FORM:
City Attorney of Henrietta,
Texas.
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