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Min 11/02/1971 468 Wichita Falls, Texas Memorial Auditorium Building November 2, 1971 Items 1 & 2 The Board of Aldermen of the City of Wichita Falls, Texas, met in regular session on the above date in the Council Room of the Memorial Auditorium Build- ing at 10:00 o'clock A.M. , with the following members present: Kenneth Hill Mayor Harry Campsey Harrison E. Taylor Larry Lambert X Aldermen Richard R. Darner X J. C. Boyd, Jr. X Bill Drake X Gerald Fox City Manager H. P. Hodge, Jr. City Attorney Wilma J. Thomas City Clerk The invocation was given by Alderman Lambert. Item 3 Moved by Alderman Lambert that minutes of the meetings held October 7, 8, and 19, 1971, be approved. Motion seconded by Alderman Campsey, and carried unanimously. ~f Item 4 A proposed ordinance was presented amending the Code of Ordinances by chang- ing the penalties for delinquent taxes. ORDINANCE NO. 2680 AN ORDINANCE AMENDING SECTION 28-7 OF THE CODE OF ORDINANCES, CHANGING THE MAXIMUM PENALTY ON DELINQUENT TAXES FROM 8% TO 10%. Moved by Alderman Campsey that Ordinance No. 2680 be passed. Motion seconded by Alderman Darner. Alderman Taylor questioned the sliding scale. The City Manager explained that the penalty would not be applied if arrangements are made for one-half pay- ments, and would not start in any event until February 1 of each year. Alderman Lambert questioned the increased penalty because he felt that those who cannot pay in the first place will be hurt, and that it will not aid in collection. The City Manager stated that in looking at penalty requirements, it is hoped that it will encourage those who are not paying, to do so. Alderman Lambert inquired if any thought has been given on providing tax considerations for elderly people. The City Manager explained that this constitutional amend- ment will be on the ballot next November for a $3,000.00 exemption of homestead property for people over 65 years old. The motion was carried by the following vote: Ayes : Aldermen Campsey, Taylor, Darner, and Boyd Nays : Aldermen Lambert and Drake Item 5a A proposed resolution was presented authorizing the City Manager to execute a utility adjustment with the Texas Company for the railroad relocation project. 469 Item 5a, cont'd. ` RESOLUTION NO. 1238 WHEREAS, the City of Wichita Falls and the Texas State Highway Department are cooperating in the construction of F.W.D.R.R. Relocation, Project 52-087, under the 1967 Capital Improvements Program of the City of Wichita Falls; and, WHEREAS, the City of Wichita Falls, Texas , and the Texas State Highway De- partment entered into a contractual agreement dated January 31, 1968, wherein the State and the City will participate equally in the right-of-way and utility adjustments required for the F.W.D.R.R. Relocation Project; and, WHEREAS, the said proposed F.W.D.R.R. Relocation Project 52-087 crosses the pipe lines owned by Texaco, Incorporated; and, WHEREAS, adjustments will have to be made to the pipe lines to allow the construction of the proposed F.W.D.R.R. Relocation Project; and, WHEREAS, Texaco, Incorporated, has a prior easement for the pipe lines; and, WHEREAS, the Texaco, Incorporated has proposed an agreement in which the City of Wichita Falls would reimburse Texaco, Incorporated the actual cost of the adjustments to the pipe lines; and, WHEREAS, the Texas State Highway Department will reimburse the City in an amount equal to fifty percent (50%) of the actual cost of this utility adjust- ment as soon as the State approves the final billing as prepared by Texaco, Incorporated. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF WICHITA FALLS, TEXAS, THAT: The certain letter of agreement between the City of Wichita Falls, and Texaco, Incorporated for the adjustment of the pipe lines is hereby approved, and the City Manager is authorized to execute it for the City of Wichita Falls. Moved by Alderman Boyd that Resolution No. 1238 be passed. Motion seconded by Alderman Campsey, and carried by the following vote: Ayes: Aldermen Campsey, Taylor, Lambert, Darner, Boyd, and Drake Nays : None Item 5b ` A proposed resolution (No. 1239) was presented authorizing the City Manager to execute a contract for subordination of mineral leases with West Oil Company and Vinson and Clark Oil Company for the railroad relocation project. Alderman Campsey desired more information, so the Council went on to the next item while the information was being obtained. Item 5c A proposed resolution was presented approving a contract between the City of Wichita Falls and the City of Henrietta covering water rights on the Little Wichita River. The City Manager explained the negotiation between the two cities and the Texas Water Rights Commission. This contract will not require any addi- tional funds by the City of Wichita Falls. We are already keeping records, and Henrietta will be required to begin keeping records. This contract was drawn in consultation with Henrietta. RESOLUTION NO. 1240 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, concerning 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. 470 Item 5c, cont'd. Moved by Alderman Campsey that Resolution No. 1240 be passed. Motion seconded by Alderman Boyd, and carried by the following vote: Ayes : Aldermen Campsey, Taylor, Lambert, Darner, Boyd, and Drake Nays : None i Item 5d A proposed resolution was presented approving a contract between the City of Wichita Falls and the Texas Water Development Board for four gauging stations. Three of the stations will be for Lake Arrowhead, and one for Lake Kemp, with the Water District No. 2 paying for the one on Lake Kemp. RESOLUTION NO. 1241 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 Texas Water Development Board and the City of Wichita Falls , providing for four stream gauging stations to be operated by the U. S. Geological Survey, is hereby approved, and the City Manager is authorized to execute the same for the City of Wichita Falls. Moved by Alderman Drake that Resolution No. 1241 be passed. Motion seconded by Alderman Campsey, and carried by the following vote: Ayes : Aldermen Campsey, Taylor, Lambert, Darner, Boyd, and Drake Nays : None Item 5b, cont'd. ( Ernest Lillard presented the information to Mr. Campsey, which he had pre- viously requested, regarding the amount of appraised value of each of the properties involved. He further explained that West Oil Company property would be divided by the railroad, but that they would have an option of going across the railroad or going around it. If they desired to cross the railroad they would be required to execute a crossing agreement with the railroad. RESOLUTION NO. 1239 WHEREAS, the City of Wichita Falls and the Texas State Highway Department are cooperating in the construction of F.W.D.R.R. Relocation Project 52-087 under the 1967 Capital Improvements Program of the City of Wichita Falls; and, WHEREAS, the City of Wichita Falls, Texas, and the Texas State Highway De- partment entered into a contractual Agreement dated January 31, 1968, wherein the State and the City will participate equally in the right-of-way and utility adjust- ments required for the F.W.D.R.R. Relocation Project; and, WHEREAS, the said proposed F.W.D.R.R. Relocation Project 52-087 crosses the oil and gas leases owned individually by the West Oil Company and Vinson-Clark Oil Company; and, WHEREAS, adjustments will have to be made to the oil production facilities on these leases to allow the construction of the proposed F.W.D.R.R. Relocation Project; and, WHEREAS, the West Oil Company and the Vinson-Clark Oil Company have prior easements for these oil production facilities by virtue of these oil and gas leases; and, WHEREAS, these surface easement rights on the West Oil Company lease have been appraised by and independent appraiser employed for this purpose by the City of Wichita Falls, and the estimated costs of adjustment of the oil production facili- ties on the Vinson and Clark lease have been approved by the Texas State Highway 471 Item 5b, cont'd. Department, and the amount of the appraisal and the estimated costs have been studied by the Board of Aldermen, and copies are now in the possession of the Director of Public Works and/or Assistant City Manager. WHEREAS, the Texas State Highway Department will reimburse the City in an amount equal to fifty percent (50%) of the actual cost of these Subordination of Mineral Leases. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF WICHITA FALLS, TEXAS, THAT: Section No. 1 The surface easement rights to be purchased by Subordination of Mineral Lease are the following tracts : F.W.D.R.R. Relocation--Project 52-087--Property 16.22 acres out of the Robert Evans Survey, Abstract No. 74 and the J. Dillon Survey, Abstract No. 353 in Wichita County, Texas. 9.78 acres out of Blocks 4,5,8, and 9, League 1, D.C.S.L. Survey in Wichita County, Texas Combined total of values approved in this resolution----$6,565.00 Section No. 2 The values of such properties are hereby approved and the City Manager is hereby authorized to purchase in the name of the City of Wichita Falls and/or Ft. Worth and Denver R.R. Company, by Subordination of Mineral Lease, on such tracts of land as shown on the project right-of-way map. The authorized price to be paid for the subordination on each tract is the value as determined from appraisal made by the independent real estate appraiser em- ployed by the City of Wichita Falls or estimates of cost approved by the Texas State Highway Department. Section No. 3 In the event the City Manager is unable to purchase the Subordination of Mineral Lease on any such tract for such values, he is hereby authorized and directed to cause to be instituted condemnation proceedings to obtain the surface easement rights on such tracts in the name of the Fort Worth and Denver Railroad Company and/or City of Wichita Falls. Moved by Alderman Darner that Resolution No. 1239 be passed. Motion seconded by Alderman Lambert, and carried by the following vote: Ayes : Aldermen Campsey, Taylor, Lambert, Darner, Boyd, and Drake Nays : None r Item 6a Award of the low bid for 15 police cars in the amount of $48,122.05, and 2 staff cars in the amount of $5,788.84, was recommended to Baggett-Bridwell by Ben Shelton, Director of General Services. Moved by Alderman Boyd that the bids be approved, with the exception of the two staff cars; that these units be deleted, and not purchased. He explained that he feels there are other less expensive alternatives for furnishing trans- portation which could be explored. Some citizens feel this is an extravagant use of motor vehicles. Motion seconded by Alderman Campsey. Alderman Taylor stated that he did not feel that we should delete these two staff cars unless we institute a program of phasing out the other staff cars. Aldermen Lambert and Darner both agreed that until there is some other alterna- tive, it would be better to go ahead as is. Moved by Alderman Lambert that Alderman Boyd 's motion be amended by also accepting the bid on the two staff cars. Motion seconded by Alderman Taylor, and carried by the following vote: Ayes : Aldermen Taylor, Lambert, Darner, and Drake Nays : Aldermen Campsey and Boyd 472 Item 6a, cont'd. The amended motion to purchase 15 police cars and 2 staff cars was voted on, and carried by the following vote: Ayes : Aldermen Taylor, Lambert, Darner, and Drake Nays : Aldermen Campsey and Boyd Alderman Darner requested that the City Manager look into the current policy on our staff cars, as well as exploring other possibilities for transportation, and report back to the Council. I . Item 6f f Bids were considered on two 32-cubic yard compaction bodies. Ernest Lillard, Director of Public Works, explained that two units were originally set up for trade-in. Another unit was damaged after they were offered for trade-in. The trade-in value was estimated to be less on one of the units than the cost of re- placement parts to repair the damaged unit, therefore, parts were used from one of the trade-in units to make the necessary repairs on the other unit. Since one of the units will not be available as originally proposed, and since one of the bidders did not separate the two trade-in units on his bid, the City Attorney recommended that both units be deleted. Award of the low bid meeting specifica- tions was recommended to Pak-Mor Manufacturing of San Antonio in the amount of $22,266.00. It was also recommended that the units originally offered for trade- in be retained and sold at a later date. Moved by Alderman Lambert that the bid of Pak Mor be accepted in the amount of $22,266.00. Motion seconded by Alderman Boyd, and carried unanimously. Item 6b IY `- Bids were considered on 28 trucks for various departments. The City Manager explained the recommendations on the bids. It was recommended that Morgan Dodge be awarded the bid for 8 one-half ton pickups for a total amount of $17,676.00. Theirs was the lowest bid meeting specifications. Discussion was held on the specifications and cost of repair and parts. Ernest Lillard explained that generally speaking, most of our problems are in the clutch and springs. Alderman Darner stated that he felt that the Council places the responsibility of speci- fications on the staff, and that we should accept those recommendations. It was explained by the City Manager that records are maintained on a cost per unit, but not on a mileage basis. Moved by Alderman Lambert that the bid of Morgan Dodge be accepted in the amount of $17,676.00 for 8 one-half ton pickups. Motion seconded by Alderman Drake, and carried unanimously. Moved by Alderman Taylor that the bid for eight 4 X 4 pickups be awarded to Morgan Dodge for a total amount of $24,785.60. Motion seconded by Alderman Drake, and carried unanimously. Moved by Alderman Boyd that the bid for 3 one-ton trucks be awarded to Morgan Dodge in the amount of $8,521.35. Motion seconded by Alderman Drake, and carried unanimously. Moved by Alderman Darner that the bid for three 15,000 GVW trucks be awarded to Morgan Dodge in the amount of $8,951.70. Motion seconded by Alderman Boyd, and carried unanimously. Moved by Alderman Boyd that the bid for four 23,000 GVW trucks be awarded to Morgan Dodge in the amount of $17,309.00. Motion seconded by Alderman Campsey, and carried unanimously. Moved by Alderman Lambert that the bid for two 51,000 GVW trucks be awarded to Moore Ford in the amount of $30,450.04. Motion seconded by Alderman Drake, and carried unanimously. 473 Item 6c Bids were considered on one rubber tired loader for the Street Department. It was recommended that the second low bid of Darr Equipment Company be accepted in the amount of $19,467.00. It was explained that the low bid of Hatch Equip- ment Company did not meet specifications. Other discussion was held on the {� length of time this unit has been on the market, and the ability of Hatch Equip- ment Company to provide this service and equipment. Tom Hatch appeared, representing Hatch Equipment Company. He stated that the unit in question was introduced a year ago last month, and has met with great success. It has a factory warranty of 12 months. He failed to state it on the bid, and Mr. Schnautz called him to inquire about it. He stated that he had adequate service to take care of this. The City Manager asked him if he had equipment on the yard to take care of this. Mr. Hatch stated that he does not have at this time, but will within the next 10 to 15 days. The three exceptions to the specifications were discussed. Mr. Hatch took exception to Mr. Lillard's statement that the equipment had only been on the market for 60 days. Mr. Lillard apologized, saying that he only knew of this equipment 60 days ago. Moved by Alderman Lambert that the bid of Darr Equipment Company be accepted in the amount of $19,467.00 for the rubber tire loader. Motion seconded by Alderman Darner. Alderman Boyd moved a substitute motion that the low bid of Hatch Equipment Company be accepted in the amount of $18,205.00 for the rubber tire loader. Motion seconded by Alderman Campsey. Alderman Darner inquired if the two-year warranty is of no value. Mr. Hatch explained that all major manufacturers in industry have a one-year war- ranty . (It was pointed out earlier that Darr Equipment Company has a two- year warranty--one year from the factory, and one year from the dealer) . Alderman Lambert stated that a completely different substitute motion is out of order to be voted upon first. City Attorney H. P. Hodge, Jr. agreed with this. Alderman Lambert's motion to award the bid to Darr Equipment Company was voted on, and carried by the following vote: Ayes : Aldermen Taylor, Lambert, Darner, and Drake Nays : Aldermen Campsey and Boyd Item 6d r Bids were considered on one track type loader for the Street Department. / Ernest Lillard, Director of Public Works, recommended award of the bid to Darr Equipment Company in the amount of $23,300.00. All other machines offered do not meet specifications. Discussion was held on the ripper and power shift transmission. Mr. Hatch stated that he took exception on the ripper; Lhat it is designed to do the proper ripping at whatever depth they desire to go. He later stated that they did not have a parallel ripper to mount on Case equipment. (The specifications called for a parallel type) . A representative in the aud- ience from Case did not recommend that their power shift transmission be rever- sed at full throttle. (The specifications also required this) . Discussion was also held on the chassis frame. Mr. Jim Sheets, representing Darr Equipment Company, stated that he felt the frame of the Caterpillar is much stronger, with a more reinforced frame. Case has a channel iron frame. He also explained that the design of the ripper makes it more effective. . Darr Equipment Company has been here since 1954. Case has had several dealers. He explained that they could have a replacement machine available in one-half to one hour, if needed. Moved by Alderman Drake that the bid of Darr Equipment Company be accepted in the amount of $23,300.00 for the track type loader. He stated that more im- portant than the cost, he feels the recommendations of the staff should be considered. Motion seconded by Alderman Lambert. 474 Item 6d, cont'd. Alderman Boyd stated that he did not believe they should accept recommenda- tions just because the staff made them. It is their job to evaluate these recommendations. City Attorney H. P. Hodge,Jr. , stated that we do not have the legal authority to disregard specifications. The line has to be drawn somewhere. Generally speak- ing, we will be confined to the specifications set out. Alderman Boyd stated that the burden of preparation of specifications is placed on the staff, and he encour- aged extra work on the part of the staff to be a little more inclusive to secure competitive bids. Ernest Lillard explained that they make a point to study different equipment; that he is glad the Council is not a rubber stamp for their recommendations. He stated they had not attempted to write specifications for only one bidder, but make them lenient enough for all to bid. Alderman Drake ex- plained that he did not intend to take Mr. Lillard's word completely, but feels his recommendation should be valued. The motion to accept the bid of Darr Equipment Company was carried by the following vote: Ayes : Aldermen Taylor, Lambert, Darner, and Drake Nays : Aldermen Campsey and Boyd Item 6e !< Bids were considered on a parking meter maintenance vehicle. Eddie Whitnell, Director of Traffic, explained that this unit is used by the maintenance men for i maintaining parking meters, and he feels a smaller pickup will be better and safer than a skooter. It is recommended that the alternate bid be awarded to Joe Mayo Motor Company in the amount of $1,957.97 for a Toyota pickup. Moved by Alderman Darner that the bid be awarded to Joe Mayo Motor Company for a Toyota as recommended. Motion seconded by Alderman Campsey, and carried unanimously. Item 6g Bids were considered on three steel dump beds. Moved by Alderman Boyd that the low bid be awarded to Hobbs Trailers of Ft. Worth, in the amount of $3,223.77. Motion seconded by Alderman Campsey, and carried unanimously. Item 7 C Permission was requested to advertise for bids for a backhoe and front end Pr'is t> r loader for Water Distribution, and for a high velocity sewer cleaning machine k' for Sanitary Sewer. Moved by Alderman Campsey that authority be granted to advertise for bids as requested. Motion seconded by Alderman Taylor, and carried unanimously. � I Item 8 Moved by Alderman Boyd that minutes of the meetings of the following boards and commissions be received. a. Planning Board--October 13, 1971 b. Park Board--October 26, 1971 C. Traffic Commission--October 12, 1971 Motion seconded by Alderman Darner, and carried unanimously. I 475 Item 9a James Davis appeared as Chairman of the Citizens Committee to study CATV ownership. A tentative report has been read and reviewed by the committee and signed by five members. After two members of the minority read the report, they felt it was not quite as they desired. They also have a 22 page minority report which will be presented by either Mr. Beck or Mr. Martin. He stated that all members of the committee carefully considered all facts , and each came to his own conclusion. He commended the members of the committee for their open mind- ness in studying this matter. He stated that they included arguments both for and against that they heard most often from various people. It does not mean that all members of the committee subscribe to all eight of the arguments against municipal ownership. He stated that he would like the Council to con- sider that the minority report is just what it is--a minority report. He ex- plained that it addresses itself to the arguments for municipal ownership. Alderman Campsey thanked the committee for their hard work on this report. Mr. Davis stated that reasons 4 and 5 would have to predominate in the arguments against municipal ownership. He feels they presented too large an obstacle for municipal ownership at this time. Mayor Hill expressed appreciation to each member of the committee. Mr. Davis accepted this expression of thanks on behalf of each member of the committee. Vernon Beck, 6716 General Custer, appeared, stating that he and David Martin addressed themselves to each argument against city ownership. They do not feel that they can rule out city ownership. He presented a 22 page report prepared by the two members of the minority. Moved by Alderman Boyd that both majority and minority reports be received. Motion seconded by Alderman Taylor. Elvin Dudley, 2415 Merrimac, appeared as president of the Jaycees . He presented a resolution from their Board of Directors opposing city ownership of cable TV. The motion to accept the reports was carried unanimously. Moved by Alderman Darner that the final report from Checchi be accepted, and that we utilize the consultant's recommendations on systems design, fran- chise ordinance, and application form for establishing a timetable for accept- ing applications and award of a franchise to a private firm for Cable TV. Motion seconded by Alderman Lambert. Alderman Boyd stated that he would like to study some of these questions further, such as the proposed draft or application form. He also questioned whether we would have two-way capability. Alderman Darner withdrew his previous motion, and moved that the Council utilize the consultant's recommendations; that in the next forthcoming pre- council meeting and council meeting we establish ordinance terms and approve an application form, and in addition, at that time that we set up a timetable for sending out and receiving these applications. Motion seconded by Alderman Boyd, and carried unanimously. Item 9b The City Manager requested the appointment of a Municipal Court Reporter to fill the vacancy created by the resignation of Joe Knox. He recommended the appointment of Mrs. Clara Jo Hughes at salary range No. 23 to this position. Moved by Alderman Lambert that the City Manager's recommendation be accepted. Motion seconded by Alderman Campsey, and carried unanimously. 476 t j Item 9c Moved by Alderman Taylor that water reimbursement contract payments in the amount of $2,285.31, and sewer reimbursement contract payments in the amount of $1,589.17, be approved for a total amount of $3,874.48, as follows : Lynwood Homes, Inc. , Water, Lynwood West, Section No. 1, from September 1, 1970 to September 1, 1971; $2,285.31 Lynwood Homes, Inc. , Sewer, Lynwood West, Section No. 1, from September 1, 1970 to September 1, 1971; $479.74 Hughes Development Company, Inc. , Sewer, White Acres Subdivision of Unit One of Faith Village from September 23, 1970 to Septem- ber 23, 1971; $372.00 Skyline Developers, Inc. , Sewer, Section 2-A in Fountain Park, from September 17, 1970 to September 17, 1971; $539.10 Hawkeye Development Company, Sewer, Section E-3, Exhibit A of University Park from September 6, 1970 to September 6, 1971; $198.33 Motion seconded by Alderman Campsey, and carried unanimously. 7 Item 10 The City Manager presented a proposal by the County for the paving of Burk Road. Under the provisions of Resolution No. 536, a variance would be required as far as specifications are concerned. He recommended that if the variance is granted that the City's engineering department be instructed to prepare the necessary grades for street and drainage system in order to insure that the drainage system would be properly handled, and that the staff be instructed to amend the present policy of requiring payments by property owners, so that full cost of replacing pavement be assessable to the property owners on roads con- structed under inferior standards after the date of adopting this policy. Moved by Alderman Darner that the Council, in view of the emergency situation presently existing, grant a variance from the controlling Resolution No. 536, and instruct the City Manager to contact the appropriate county officials and work with and allow the repair of old Burk Road. The city's engineers are also instructed to work with the County in regard to engineering grades. Secondly, that the staff is instructed to amend the policy of payment by property owners on reconstruction projects so that at any time inferior paving is put down after the date of the policy change that it will be fully assessable in any reconstruction program. Motion seconded by Alderman Drake, and carried unanimously. Moved by Alderman Boyd that the meeting be adjourned. Motion seconded by Alderman Campsey, and carried unanimously. The Board of Aldermen adjourned at 12 :55 P.M. PASSED AND APPROVED this - VV_day of 1971. Mayor ATTEST: City Clerk ' � f THIE STATE OF TEXAS I Texas Water Development Board COUNTY OF TRAVIS j Contract No. This Contract and Agreement, made and entered into by and between the Texas Water Development Board, hereinafter called the BOARD, and the ------------------CITY OF WICHITA FALLS----------------------- ----------------------- , hereinafter called COOPERATOR, in a Cooperative Water Resources Investigation Program under the following terms, conditions and considerations, to-wit: ARTICLE I The BOARD, at the request of the COOPERATOR, and for the considera- tion hereinafter expressed, agrees and covenants to conduct or cause to be conducted by the Geological Survey, United States Department of the Interior, a program of Water Resources Investigation for the period of September 1, 1971 through August 31, 1972, as follows: I. Surface-Water Investigations: A. Continued operation and maintenance of the following streamflow and reservoir content stations: South Fork Wichita River near Benjamin, Texas Little Wichita River near Archer City, Texas Lake Arrowhead near Henrietta, Texas Little Wichita River near Henrietta, Texas Page 1 TWDS-L-5 ARTICLE II The program is estimated to cost Nine Thousand ($9 000 00) Dollars -------------------------------------------------------------------- COOPERATOR, in consideration of the foregoing agreement and undertaking on the part of the BOARD, hereby covenants and agrees to pay to the BOARD the sum of Three Thousand Six Hundred Ninety ($3. 690, 00) Dollars------- ------------------------------------------- on demand after the 1st day of September, 1971. ARTICLE III The parties hereto agree that this Contract and Agreement is subject to the availability of funds to the BOARD, provided, however, that should such funds be not available, this agreement shall be null and void, no funds contributed by the COOPERATOR shall be expended, and any such funds contributed by the COOPERATOR shall be refunded in full. ARTICLE IV _. It is mutually agreed and understood that in the event of major damage to any of the stations noted in Article I above, by floods or other causes, or in case it becomes desirable to move a station or stations to a new location, the cost of repairing such damage or moving such station will be mutually agreed upon by the parties hereto and the COOPERATOR shall contribute on the same basis as other work provided herein, subject to the certification of the COOPERATOR'S Auditor as to the availability of funds to be expended prior to the obligating of or the expenditure thereof. ARTICLE V It is mutually agreed and covenanted that if the COOPERATOR shall fail to make payment as herein provided, the BOARD may cancel and terminate the remainder to this Contract and Agreement by giving COOPERATOR written notice. If this Contract and Agreement is terminated prior to the time of full performance, the COOPERATOR shall be obligated to pay to the Page 2 ' BOARD for work already performed hereunder, or as appropriate, the BOARD shall refund all that portion of COOPERATOR'S contribution which has not already been expended, or which the BOARD is not obligated to expend on work that has already been performed hereunder up. to the date of cancellation and termination. ARTICLE VI The parties hereto further agree that this Contract and Agreement may be altered or amended upon the advance written agreement of each party to exclude work being performed or to include additional work to be performed and to adjust the consideration to be paid hereunder by virtue of such alterations or amendments. ARTICLE VII This Contract and Agreement replaces and supersedes in the entirety the contract relating to a program of Water Resources Investigations previously entered into between the TEXAS WATER DEVELOPMENT BOARD and COOPERATOR and dated August 31, 1970, as well as all amendments or additions thereto. IN WITNESS WHEREOF, the parties have caused this CONTRACT and AGREEMENT to be duly executed in quadruplicate, this the 31st day of August, 1971. TEXAS WATER DEVELOPMENT BOARD By ,4�ec'--Harry P. Burleigh, Executive Director CITY OF WICHITA FALLS By ATTEST: Page 3 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 cfat 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 -2- 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. -3- 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. -4- 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 ovei 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. -5- (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 thetime 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 that 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 -6- 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 during 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. ARBITRATION 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. -7- , w 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 By MAYOR ATTEST: City Clerk APPROVED AS TO FORM: City Attorney of Wichita Falls, Texas CITY OF HENRIETTA, TEXAS By MAYOR ATTEST: City Secretary APPROVED AS TO FORM: City Attorney of Henrietta, Texas. -S-