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HomeMy WebLinkAboutResolution - 2006-R0208 - Raw Water Lease - Lake Alan Henry Water District - 05_11_2006Resolution No. 2006-RO208 May 11, 2006 Item No. 5.11 RESOLUTION WHEREAS, by Resolution No. 2004-RO258 (the "Prior Resolution"), dated on or about May 25, 2004, the City Council of the City of Lubbock approved that certain Raw Water Lease by and between the City of Lubbock and the Lake Alan Henry Water District (the "District"); WHEREAS, the District refused to execute the Raw Water Lease approved by the City of Lubbock, as evidenced by the Prior Resolution; WHEREAS, certain changes were made to the Raw Water Lease, and the District has now agreed to and executed such Raw Water Lease; WHEREAS, the City now desires to withdraw the Prior Resolution and replace it herewith. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Raw Water Lease by and between the City of Lubbock and the Lake Alan Henry Water District, and all related documents. Said Raw Water Lease is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. BE IT FURTHER RESOLVED THAT the Prior Resolution is hereby withdrawn and repealed and replaced for all intents and purposes with this Resolution No. 2006—RO208 . Passed by the City Council this 11th day of May 2006. ATTEST: J� Re ecca Garza, City Secretary APPROVED AS TO CONTENT: Tom APPROVED AS TO FORM: i"t=�e---, Richard K. Casner, First Assistant City Attorney ml/ccdocs/LAHWD Water Lease.res May 1, 2006 Resolution No. 2006-RO208 May 11, 2006 RAW WATER LEASE Item No. 5.11 BETWEEN THE CITY OF LUBBOCK AND THE LAKE ALAN HENRY WATER DISTRICT The City of Lubbock (hereinafter "City" or "Lessor") and The Lake Alan Henry Water District (hereinafter "District" or "Lessee") enter into this Raw Water Lease ("Lease") on May 11, 2006 , (the "Effective Date"). I. RECITALS Whereas, the City is a home -rule municipality created pursuant to Article II, Section V of the Texas Constitution and its Charter; and Whereas, the District is a special law conservation and reclamation district created pursuant to the authority of Article XVI, Section 59 of the Texas Constitution through the passage of Senate Bill 1941, Regular Session, 78th Texas Legislature (2003) (the "Enabling Legislation"), attached hereto as Exhibit "A"; and Whereas, on September 25, 1984, Permit No. 4146 (the "Permit"), attached hereto as Exhibit "B", was issued to the City authorizing the construction, storage, diversion and use of water from Lake Alan Henry (the "Lake"); and Whereas, on May 11, 1989 the City and the Brazos River Authority ("BRA") entered into a Water Supply Agreement By And Between Brazos River Authority And City Of Lubbock, as amended, (the "Agreement"), for the purpose of constructing and operating the Lake; and Whereas, by entering into this Lease, the City has determined that the amount of water to be provided according to this Lease will not be needed by the City for the next 20 years, and that this Lease will assist in fulfilling the City's financial obligations for the Lake; and Whereas, the City and the District desire to enter into a term agreement for the lease of raw water from the Lake, wherein the cost of water has been determined to be fair, just and reasonable pursuant to the Enabling Legislation; and Now Therefore, for and in consideration of the mutual promises, the adequacy of consideration being hereby acknowledged, the City and the District do hereby agree and covenant to each other the following: RAW WATER LEASE FROM LAKE ALAN HENRY PAGE 1 If. WATER SUPPLY A. Amount of Water Delivered - Lessee shall have the right to use from the Lake, in accordance with the Permit, the amount of water, during each year hereof, as set forth on Exhibit "C", attached hereto (the "Base Annual Quantity"). Lessee may, subject to the terms of this Paragraph ILA, at any time or times during the term hereof, increase the quantity of water to be provided hereunder, up to a maximum of 500 acre-feet of water per annum, by providing notice to Lessor at least ninety (90) days prior to the date of requested delivery of the increased quantities of raw water. The quantity of raw water, as increased by the above -described notice(s), shall become the Base Annual Quantity for all purposes of this Lease. The Base Annual Quantity, as same may be increased pursuant to the terms hereof, may not be decreased by Lessee during the term hereof. In the event the level of the Lake shall decrease to the level of 2185 feet above mean sea level or below during the term hereof, the amount of water required to be delivered to Lessee by Lessor shall decrease in a corresponding manner for such time as the Lake shall be at such level, as set forth in Exhibit "F". The reduced quantity of water shall be deemed to be the Base Annual Quantity during the term of such reduction. Once the level of the Lake has exceeded 2185 feet above mean sea level, the Base Annual Quantity shall revert to the last Base Annual Quantity prior to the reduction. B. Source of Water Supply — Water supplied pursuant to this Lease will be water provided in accordance with the Permit. C. Point and Rate of Diversion — Water supplied pursuant to this Lease will be diverted at the place and rate of diversion as authorized in the Permit. D. Purpose of Use — Lessee represents to Lessor and Lessor relies on such representation that all water supplied under this Lease will be utilized for retail water service and for municipal uses only, as such terms are defined by rules adopted by the Texas Commission on Environmental Quality (the "Commission"). Lessee is expressly prohibited from providing or selling raw water to any third party without the written consent of Lessor. E. Place of Use - Water supplied pursuant to this Lease shall only be used by the District and its retail water customers within the metes and bounds area described within the District's Enabling Legislation. F. Point of Delivery — Water supplied pursuant to this Lease will be delivered to Lessee at the stilling basin outlet works, on the downstream side of the dam, as approximately depicted in Exhibit "D", attached hereto, at a master -meter to be installed at the expense of Lessor pursuant to Paragraph III.D. The City shall grant the District necessary easements, in RAW WATER LEASE FROM LAKE ALAN HENRY PAGE 2 the form as attached hereto as Exhibit "G", at the request of District and upon the consideration stated therein. G. Rate of Delivery — Lessor agrees to deliver water to Lessee at a rate not to exceed two times the annual average quantity on a daily basis measured over a 24-hour period. City will not restrict the delivery pressure from the Lake, unless the restriction is necessary to comply with this provision or the terms of the Permit. H. Quality of Water — Lessor makes no representation as to the quality of the water supplied under this Lease, and Lessee hereby releases Lessor and agrees to hold it harmless from any and all claims that Lessee or Lessee's customers or users have or may have for any diminution in or impairment of the quality of water supplied under this Lease caused by any acts or omissions of Lessor. III. ADMINISTRATION OF LEASE A. Term of Lease — This Lease shall be for a term of twenty (20) years commencing on the earlier to occur of (i) Lessor's actual delivery of water to Lessee, at any quantities, under the terms hereof; or (ii) three (3) years from the Effective Date, (the earlier to occur of said dates being referred to herein as the "Take or Pay Date") and ending on the twentieth (20t) year anniversary of the Take or Pay Date, unless terminated earlier by either party as provided herein. Lessee will do all things lawful within its power to pursue, obtain and maintain funds from which the herein payments for delivery of water from Lessor may be disbursed. In the event that prior to the Take or Pay Date, Lessee has been unable to obtain sufficient funds for payment of delivery of water from Lessor, as communicated by Lessee to Lessor in writing on or before ten (10) days after the Take or Pay Date, this Agreement shall terminate without penalty to Lessee. B. Computation of Rates for Leased Water — Lessee hereby acknowledges that the Enabling Legislation accurately and appropriately defines the components necessary for the computation of the rates to be charged by the Lessor to the Lessee for the water to be supplied hereunder. Lessee hereby acknowledges that such components, if applied correctly, will generate rates that are just, reasonable and non-discriminatory, as applied to Lessee and the supply of water made available hereunder. C. Terms of Payment — Lessee hereby covenants to pay Lessor the initial sum of $567.53 per acre-foot for the delivery of the Base Annual Quantity, regardless, except as provided below, of whether said Base Annual Quantity is actually delivered to or used by the Lessee or its customers. RAW WATER LEASE FROM LAKE ALAN HENRY PAGE 3 Lessee shall be obligated to pay only for the water actually provided to it until the Take or Pay Date. From and after the Take or Pay Date, Lessee shall be obligated to pay, and shall pay, the Base Annual Quantity regardless of whether said Base Annual Quantity is actually delivered or used by the Lessee or its customers. Lessee expressly stipulates and agrees that the price for water paid to be delivered hereunder may be adjusted annually, effective for deliveries of raw water to Lessee on and after February 1 of each year of the term hereof, in accordance with the terms of Paragraph III.B. Within thirty (30) days of the anniversary of the Take or Pay Date, and during the term of this Lease, Lessor will mail a statement to Lessee showing the annual diversions and amount delivered. Such statement shall also show the amount of money owed by Lessee to Lessor for the Base Annual Quantity and any additional quantities of water authorized in accordance with the Lease. Each statement submitted shall be paid to Lessor at its office in Lubbock, Texas, by check or bankwire, on or before thirty (30) days from the date of mailing of the statement to Lessee. In the event Lessee fails to make payment of that statement within said thirty (30) day period, Lessee hereby agrees to pay and shall then pay a late payment charge of five percent (5%) of the amount of the statement. For each calendar month or fraction thereof that the statement remains unpaid, Lessee hereby agrees to pay and shall pay interest at the rate of one and a half percent (1.5%) of the amount of the statement. If the statement has not been paid in the prescribed period, Lessee hereby further agrees to pay all costs of collection and reasonable attorney's fees, regardless of whether suit is filed for such collection. D. Metering of Delivered Water — To measure the amount of water delivered to Lessee hereunder, Lessor agrees, at Lessor's expense, to install such flow meters and recording devices as are approved by the Lessee (the "Meters"), such Meters to permit, within five percent (5%) accuracy, determination of quantities of raw water delivered hereunder in units of 1,000 gallons. Lessor shall provide Lessee and Lessee shall provide Lessor with reasonable access to the Meters for the purpose of making meter readings and/or periodic inspections. Lessee and Lessor shall have the right to make a reading of the Meters installed by Lessor on a monthly basis. Lessor agrees that the Meters shall be tested for accuracy by qualified personnel as approved by the Lessee and at the expense of Lessor once each calendar year at intervals of approximately twelve (12) months. Lessor shall furnish Lessee with a report of such test results. Readings within five percent (5%) of accuracy shall be considered correct. The Meters may be tested at any reasonable time by either party, provided that the party making the test shall notify the other party at least two (2) weeks in advance and allow the other party to witness the test. RAW WATER LEASE FROM LAKE ALAN HENRY PAGE 4 Lessee may install, at its expense, check meters in or to any of Lessor's metering equipment at any time and may leave such check meters installed for such periods as Lessee deems to be reasonably necessary to determine the accuracy of Lessor's metering equipment. Lessor shall be required to take necessary steps to correct any meter inaccuracy discovered during any test. In the event any question arises at any time as to the accuracy of any meter, such meter shall be tested by Lessor promptly upon the demand of Lessee, the expense of such test to be borne by Lessee if the meter is found to be correct and by Lessor if it is found to be incorrect. If, as a result of any test, any meter is found to be registering inaccurately (i.e., in excess of five percent (5%) of accuracy), the readings of such meter shall be corrected at the rate of its inaccuracy for any period which is definitely known and agreed upon or, if no such period is known and agreed upon, the shorter of the following periods shall be used as the basis for correction: 1. a period extending back either sixty (60) days from the date of demand for the test or, if no demand for the test was made, sixty (60) days from the date of the test; or 2. a period extending back half of the time elapsed since the last previous test; and the records of reading shall be adjusted accordingly. E. Water Conservation and Drought Contingency Measures — Pursuant to 30 Tex. Admin. Code Chapter 288, Lessee agrees to develop and implement water conservation and drought contingency measures consistent with, or more restrictive on water use than, Lessor's water conservation plan (the "Conservation Plan"), and that the water delivered to Lessee pursuant to this Lease will be used in accordance with such Conservation Plan. Lessor, in accordance with applicable law, may from time to time modify the Conservation Plan. Lessee agrees to provide Lessor with copies of Commission approved water conservation and drought contingency plans prior to the delivery of water pursuant to this Lease. F. Termination of the Lease — This Lease may be terminated hereto as follows: 1. Lessor, at its sole option, and in accordance with the terms and conditions set forth in Paragraph III.G., "Non -Payment", may terminate this Lease without recourse should Lessee fail to comply with the terms and conditions of this Lease for the payment of moneys owed to Lessor pursuant to Paragraph M.C., "Terms of Payment." RAW WATER LEASE FROM LAKE ALAN HENRY PAGE 5 2. This Lease may be terminated immediately by Lessor upon the declaration of bankruptcy by Lessee. 3. This Lease may be terminated should Lessee fail to comply with the terms and provisions of Paragraph III. K. or Paragraph III. L., below, if Lessor notifies Lessee of Lessee's default and Lessor's intent to so terminate this Lease, and Lessee fails to cure such default after thirty (30) days notice and opportunity to cure such default. Lessee shall remain liable for all fees and charges accruing under the Lease through the date the Lease is terminated. G. Non -Payment — If Lessor determines that Lessee has not paid the full amount owed for any payment due under Paragraph III.C., "Terms of Payment", hereof within the time provided therefore, Lessor shall give written notice to Lessee stating the amount due and unpaid. If Lessor gives notice as provided herein and Lessee fails to pay within thirty (30) days of the date such written notice was mailed the amounts claimed in such notice to be due and unpaid, Lessor may, at its sole option, upon giving ten (10) days additional written notice to Lessee, terminate this Lease without recourse. If Lessee should dispute Lessee's obligation to pay all or any part of the amount stated in any statement or notice, Lessee shall, nevertheless pay such amount, in which case such amount shall be deposited by Lessor in an interest bearing account pending final resolution of such dispute. H. Notice — Each notice under this Lease shall be transmitted by certified mail, return receipt requested, and shall be effective on the date actually received. All notices and statements shall be addressed to: Lake Alan Henry Water District Attention: President, Board of Directors P.O. Box 493 Post, Texas 79356 City of Lubbock Attention: City Manager P.O. Box 2000 Lubbock, Texas 79457 Either party may change its address by giving written notice of such change to the other party. I. Assignment of Lease - Lessee may assign this Lease only upon obtaining the written approval of Lessor. Lessor may assign this Lease, in whole or RAW WATER LEASE FROM LAKE ALAN HENRY PAGE 6 in part, at any time and from time to time, at its sole and absolute discretion. J. Compliance with Commission Rules — Lessor agrees to file a copy of this Lease with the Executive Director of the Commission, it being fully recognized by the Lessee hereunder that the effectiveness of this Lease is dependent upon compliance with 30 Tex. Admin. Code Chapters 295 and 297. K. Restrictive Easement — A Restrictive Easement (herein so called) in favor of Lessor, being described in that certain Memorandum of Agreement (the "Memorandum") by and between the City and Mr. and Mrs. Billy Wayne Williams, et al., said Memorandum being attached hereto as Exhibit "E", encumbers certain lands surrounding Lake Alan Henry, said lands being located (i) from elevation 2220 feet above mean sea level to elevation 2245 feet above mean sea level and (ii) between elevation 2245 feet above mean sea level and 300 feet horizontal distance from elevation 2220 feet above mean sea level if the 300 feet horizontal distance contains a larger area of land than is contained between elevations 2220 feet and 2245 feet above mean sea level. Lessee shall not, in any instance, provide water obtained, in whole or in part, from Lake Alan Henry, to persons who have placed or are placing, or causing to be placed, a structure or facility, as defined in the Memorandum, within the boundaries of the Restrictive Easement or to property wherein such a structure or facility is located within the Restrictive Easement. Lessee shall require its customers or users to enter into Service Agreements prior to it providing water to said customers or users wherein (i) notice of Lessee's duties set forth in this Paragraph III, K. is provided; (ii) its customers or users agree to not place or cause to be placed a structure or facility, as defined in the Memorandum, within the boundaries of the Restrictive Easement; and (iii) agree that Lessee shall immediately, and without notice, terminate water service to them in the event that they should place or cause to be placed a structure or facility within the boundaries of the Restrictive Easement. L. Condition Precedent — Lessor shall be under no obligation to deliver water under the terms hereof during the term hereof, if Lessee shall serve or provide water in any way, manner, or form, obtained in whole or part from Lake Alan Henry, to any person who has either placed or is placing any structure or facility, as defined in the Memorandum, within the Restrictive Easement or owns property, or any part thereof, containing a structure or facility, as defined in the Memorandum, within the Restrictive Easement or to property wherein such a structure or facility is located. RAW WATER LEASE FROM LAKE ALAN HENRY PAGE 7 IV. WATER SUPPLY PLANNING A. No Permanent Supply of Water - Lessee acknowledges that the supply of water pursuant to this Lease is for a specified term of years and that Lessor may need this water to meet its own future water supply needs. Lessee agrees that Lessor has no obligation to extend the Lease or enter into another Lease for the benefit of Lessee. B. Plan for Future Supply — Consistent with Water Code Section 11.036 and Government Code Section 791.026, Lessee agrees to plan for its water supply needs beyond the term of this Lease. In so doing, Lessee agrees to submit to Lessor, at least three (3) years before the expiration of this Lease, a list of identified alternative water management strategies approved in accordance with the Texas Water Development Board's State Water Plan and Chapter 16 of the Water Code. Furthermore, at least one (1) year before the expiration of this Lease, Lessee covenants that it will complete all land acquisition, construction, and physical improvements necessary to realize any such approved alternative water management supplies to replace the water supply provided through this Lease. V. GENERAL PROVISIONS A. Preamble — All matters stated in the preamble are found to be true and correct and are incorporated into the body of this Lease as if copied in their entirety. B. Hold Harmless and Indemnification - To the extent, and only to such extent allowed by law, and subject to Paragraph V.S. herein, Lessor and Lessee will save and hold the other harmless from any and all claims or demands whatsoever to which either may be subjected by reason of any injury to any person or damage to any property resulting from or in any way connected with any and all actions and activities (or failure to act) of the other party under this Lease. C. Force Maieure - The term "force majeure" as used herein, shall mean those situations or conditions which are beyond the control of Lessor or Lessee and which, after the exercise of due diligence to remedy such situation or condition, render Lessor or Lessee unable, wholly or in part, to carry out the covenants contained herein. Such force majeure includes, but is not limited to, acts of God, strikes, lockouts, acts of the public enemy, orders of any kind of the government of the United States or of the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts, droughts, civil disturbances, explosions, breakage or accidents to machinery, pipelines, canals, or dams, partial or entire failure RAW WATER LEASE FROM LAKE ALAN HENRY PAGE 8 of water supply insofar as each of the foregoing are beyond the reasonable control of the party in question. Lessor shall not be held liable or responsible for any damage that may be caused by its inability, after the exercise of due diligence, to make the supply of water available to Lessee due to any force majeure. Lessor shall use reasonable and timely diligence to repair or recondition the machinery, pipelines, or dams in the event such machinery, pipelines or dams are damaged or made unserviceable from any force majeure. D. Maintenance and Periodic Shutdowns — Lessee agrees that routine and emergency maintenance conditions may impact Lessor's ability to deliver water pursuant to this Lease. Except in the case of force majuere, and to the extent reasonable, Lessee agrees to give 48 hours notice prior to any shutdown of equipment or infrastructure necessary to deliver water to Lessor. E. No Third Party Beneficiary - The parties hereto are entering into this Lease solely for the benefit of themselves and agree that nothing herein shall be construed to confer any right, privilege or benefit on any person or entity other than the parties hereto. F. No Rights or Title Acquired - Lessee agrees and acknowledges that it acquires by this Lease no rights or title to the water that is the subject of this Lease other than those rights explicitly set forth herein. Furthermore, nothing in this Lease shall be construed as an assignment of any diversion rights, equity, or financial obligations under the Agreement. G. Representations And Warranties — Both Lessor and Lessee represent and warrant to the other that this Lease has been duly executed by an authorized officer and constitutes a valid and binding contract, enforceable against it in accordance with its terms (except as such enforceability may be limited by bankruptcy laws or other similar laws relating to the enforcement of creditors' rights generally . and by general equitable principles). H. Amendment - This Lease may not be modified or amended except by an instrument in writing signed by authorized representatives of the parties. I. Binding Effect - The terms of this Lease shall be binding upon, and inure to the benefit of, the parties and their, in the case of Lessor, successors and assigns, and in the case of Lessee, its permitted successors and assigns. J. Integrated Document - This Lease, together with all Exhibits attached hereto, constitutes the entire agreement of the parties relating to the subject matter of this Lease and supersedes all prior agreements or RAW WATER LEASE FROM LAKE ALAN HENRY PAGE 9 understandings with respect to the subject matter hereof, both oral and written. Each party agrees that the other party (and their agents and representatives) have not made, and it has not relied upon, any representation, warranty, covenant or agreement to or with such party relating to the transactions contemplated hereunder other than those expressly set forth herein. K. Counterparts - This Lease may be executed by the parties in any number of separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts shall together constitute one and the same agreement. All signatures need not be on the same counterpart. L. Further Assurances - Each party agrees to do all acts and things and to execute and deliver such further written instruments, as may be from time to time reasonably required to carry out the terms and provisions of this Lease. M. Governing Law - This Lease and the rights and duties of the parties arising out of this Lease shall be governed by, and construed in accordance with, the laws of the State of Texas, without reference to the conflict of laws rules thereof. This Lease is performable, at least in part, in Lubbock County, Texas. Lessor and Lessee hereby irrevocably consent to Lubbock County as the exclusive venue for any action related hereto. N. Headings - The headings of the Articles and Paragraphs of this Lease are included for convenience only and shall not be deemed to constitute a part of this Lease. O. Exhibits - All Exhibits attached to this Lease are incorporated herein by this reference in their entirety and made a part hereof for all purposes. P. Interpretation and Reliance - No presumption will apply in favor of any party in the interpretation of this Lease or in the resolution of any ambiguity of any provisions thereof. Q. Relationship of Parties - Neither the execution nor delivery of this Lease, nor the consummation of the transactions contemplated hereunder, shall create or constitute a partnership, joint venture, or any other form of business organization or arrangement between the parties, except for the contractual arrangements specifically set forth in this Lease. Except as is expressly agreed to in writing in this Lease, no party (or any of its agents, officers or employees) shall be an agent or employee of the other party, nor shall a party (or any of its agents, officers or employees) have any power to assume or create any obligation on behalf of the other party. RAW WATER LEASE FROM LAKE ALAN HENRY PAGE 10 R. Severability - In the event that any provision of this Lease is held to be unenforceable or invalid by any court of competent jurisdiction, the parties shall negotiate an equitable adjustment to the provisions of this Lease with the view to effecting, to the extent possible, the original purpose and intent of this Lease, and the validity and enforceability of the remaining provisions shall not be affected thereby. S. Actual Damages - Neither party shall be liable or have any responsibility to the other for any indirect, special, consequential, punitive or delay - related or performance -related damages including, without limitation, lost earnings or profits. Such limitation on liability shall apply to any claim or action, whether it is based on whole or in part on contract, negligence, strict liability, tort, statute or any other theory of liability. T. Mediation — In the event any dispute shall arise under this Lease, the parties agree to submit the matter to mediation prior to the initiation of a lawsuit. The parties shall attempt in good faith to agree on a mediator. In the event they cannot so agree, each party shall nominate a mediator and the persons so selected shall select the mediator in the manner they so choose. All mediation proceedings shall not be binding, in any way, manner or form, on either party to this Lease or any issue related to this Lease. Executed and effective as of the date identified above by the signatures of the parties below. CITY OF LUBBOCK.,TEXAS MARC MODOUGAL, MAYOR ATTEST: Re ecca Garza, City Secrets APPROVED AS -TO CONTENT: Tom -Adams Deputy City Manager RAW WATER LEASE FROM LAKE ALAN HENRY PAGE 11 APPROVED A TO FORM: Richard K. Casner First Assistant City Attorney LAKE ALAN HENRY aWA-TER DISTMI B Name: Al"'&� Title: Z-W ATTEST: Name, Title Raw Water Lease Agreement with LAHWD-Final April 28, 2006 RAW WATER LEASE FROM LAKE ALAN HENRY PAGE 12 S.B. No. 1941 1 includes the territory contained within Sections 43-47 and Sections 2 56-60, Block 5, H&GN Railroad Co. Survey, Kent County, and that 3 portion of Garza County, as more fully described below, but always 4 excluding the City of Post, as the boundaries of the City of Post 5 may change from time to time. The specific boundaries of the 6 portion of Garza County included in the district excluding the City 7 of Post are as follows: 8 BEGINNING at a point at the Southeast corner of Garza County, 9 Texas; 10 THENCE West along the South County Line of Garza County to a 11 point in the center of Ranch Roach No. 669; 12 THENCE North along the centerline of Ranch Road No. 669 to a 13 point in the South City Limits boundary line of the City of Post, 14 Texas; 15 THENCE East along the City Limits boundary line of the City of 16 Post, as such line curves to the North, to a point in the center of 17 State Highway No. 380; 18 THENCE East along the centerline of the said State Highway 19 No. 380 to a point in the East County Line of Garza County; 20 THENCE South along the East County Line of Garza County to the 21 PLACE OF BEGINNING. 22 (b) The legislature finds that the boundaries and field 23 notes of the district form a closure. If a mistake is made in the 24 field notes or in copying the field notes in the legislative 25 process, the mistake does not affect in any way: 26 (1) the organization, existence, or validity of the 27 district; 3 Exhibit "A" Resolution No. 2006-RO208 May 11, 2006 Item No. 5.11 S.B. No. 1941 1 AN ACT 2 relating to the creation, administration, powers, duties, 3 operation, and financing of the Lake Alan Henry Water District; 4 granting the power of eminent domain; authorizing the issuance of 5 bonds and the imposition of taxes. 6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 7 ARTICLE 1. CREATION OF LAKE ALAN HENRY WATER DISTRICT 8 SECTION 1.01. DEFINITIONS. In this article: 9 (1) "Board" means the board of directors of the 10 district. 11 (2) "City" means the City of Lubbock, Texas. The term 12 includes all relationships and agreements between the city and the 13 Brazos River Authority to own and operate the lake. 14 (3) "Commission" means the Texas Commission on 15 Environmental Quality or any successor agency. 16 (4) "Counties" means Garza and Kent counties, Texas. 17 (5) "District" means the Lake Alan Henry Water 18 District. 19 (6) "Lake" means Lake Alan Henry. 20 SECTION 1.02. LEGISLATIVE FINDINGS. The legislature finds 21 that it is in the interest of this state to: 22 (1) promote the orderly development, use, and 23 protection of Lake Alan Henry; and 24 (2) support cooperation between the city and the 1 S.B. No. 1941 1 residents of Garza and Kent counties to use Lake Alan Henry as a 2 municipal source of water. 3 SECTION 1.03. CREATION OF DISTRICT. (a) A conservation 4 and reclamation district, to be known as the Lake Alan Henry Water 5 District, is created in Kent County and a portion of Garza County. 6 (b) The district is a unit of government for the purposes of 7 Chapter 101, Civil Practice and Remedies Code, and the operations 8 of the district are considered to be essential governmental 9 functions and not proprietary functions for all purposes, including 10 the application of that chapter. 11 (c) The creation of the district is essential to the 12 accomplishment of the purposes of Sections 52 and 52-a, Article 13 III, and Section 59, Article XVI, Texas Constitution, and to the 14 accomplishment of the public purposes stated in those sections and 15 in this article. 16 (d) The district is necessary to promote, develop, 17 encourage, and maintain employment, commerce, economic 18 development, and the public welfare in the area included in the 19 district. 20 (e) The district is created to supplement and not to replace 21 the services and regulatory powers and authority of the counties 22 and city within their respective boundaries and, in the event of a 23 conflict between a regulation of the district and an order, 24 ordinance, or other lawful regulation of the counties or city, the 25 order, ordinance, or other regulation of the counties or city shall 26 prevail. 27 SECTION 1.04. BOUNDARIES; ADJUSTMENTS. (a) The district S.B. No. 1941 1 (2) the right of the district to enter into any type of 2 contract for any purpose for which the district is created; 3 (3) the right of the district to impose, assess, or 4 collect taxes, fees, or charges; or 5 (4) the legality or operation of the district or the 6 board. 7 (c) The board may annex or exclude territory in the manner 8 provided by Subchapter J, Chapter 49, Water Code, as limited by 9 Section 54.016, Water Code, except that: 10 (1) for purposes of this subsection, a reference to a 11 tax in Subchapter J, Chapter 49, Water Code, or Section 54.016, 12 Water Code, means an ad valorem tax; and 13 (2) land may not be excluded from the district if bonds 14 or other obligations of the district, payable wholly or partly from 15 ad valorem taxes, are outstanding. 16 SECTION 1.05. FINDING OF BENEFIT AND PUBLIC PURPOSE. 17 (a) The district is created to serve a public use and benefit. 18 (b) All of the land and other property included within the 19 boundaries of the district will be benefited by the works, 20 projects, and services that are to be accomplished or provided by 21 the district under powers conferred by Sections 52 and 52-a, 22 Article III, and Section 59, Article XVI, Texas Constitution, and 23 the other powers granted under this article. 24 SECTION 1.06. CONSTRUCTION OF ARTICLE; APPLICABILITY OF 25 OTHER LAW. (a) This article shall be liberally construed in 26 conformity with the findings and purposes stated in this article. 27 (b) If any provision of general law is in conflict or N s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 S.B. No. 1941 inconsistent with this article, this article prevails. SECTION 1.07. GENERAL POWERS AND DUTIES. (a) The district has all of the powers and duties provided by the general laws of this state relating to conservation and reclamation districts created under Sections 52 and 52-a, Article III, and Section 59, Article XVI, Texas Constitution, including Chapter 49, Water Code, Chapter 51, Water Code, applicable to water control and improvement districts, and Chapter 54, Water Code, applicable to municipal utility districts. (b) Notwithstanding Subsection (a) of this section, the district's bonds and other obligations and the projects to be financed by those obligations are not subject to the jurisdiction or supervision of the commission under Chapter 49, Water Code, or other law. (c) Any general law referenced by this article that supplements the power and the authority of the district, to the extent that the law is not in conflict or inconsistent with this article, is adopted and incorporated by reference. (d) The board may employ and establish the terms of employment and compensation of an executive director or general manager and any other employees of the district the board considers necessary. (e) As authorized under Chapter 49, Water Code, the district may exercise the power of eminent domain, within and without the boundaries of the district, for the purpose of acquiring land and property in order to develop its improvements projects. However, the district may not exercise the power of eminent domain to acquire 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 S.B. No. 1941 city -owned land, property, mineral rights, or water rights. (f) The district may impose impact fees according to benefits received by the property, including an impact fee on residential property. An impact fee may be imposed on residential property only to provide capital funding for: (1) public water and wastewater facilities; or (2) drainage and storm -water facilities. (g) To the extent that the powers under this subsection do not impair contractual rights or agreements existing before the effective date of this Act, the city may: (1) exercise police powers over: (A) the lake; (B) any city -owned land around the lake; and (C) easements on or above the lake owned or in favor of the city; and (2) assess reasonable fees for recreational use of the lake. (h) A power conferred by this section on the district may not in any way interfere with the authority of the city under Subsection (g) of this section. (i) The board by resolution may change the district's name. If the board changes the district's name, the district shall give written notice to the commission. SECTION 1.08. LAKE AS WATER SUPPLY. (a) The city may sell water from the lake to the district or any other governmental entity if the city council of the city finds that: (1) the amount of water sold under a water sales 6 S.B. No. 1941 1 contract will not be needed by the city for its municipal water 2 supply for at least 20 years after the date of the contract; and 3 (2) execution of a contract with the district or any 4 other governmental entity will assist in fulfilling the city's 5 financial obligations. 6 (b) The district may develop a local water supply under a 7 water supply agreement with the city or from other sources. 8 (c) Consistent with Section 11.036, Water Code, and Section 9 791.026, Government Code, a water supply agreement entered into by 10 the city and the district under this section may: 11 (1) specify the term of the agreement; 12 (2) limit the maximum amount of water to be supplied to 13 the district by the city; and 14 (3) provide for the payment of rates and charges to the 15 city for the water supplied by the city. 16 (d) Under a water supply agreement, without the city's 17 consent: 18 (1) the maximum amount of water to be supplied to the 19 district by the city may not be increased; and 20 (2) the term of the agreement may not be extended. 21 (e) The city may establish and maintain rates and charges 22 for water supplied to the district or to any other purchaser of 23 water from the lake under a water supply agreement. The rates and 24 charges to be assessed under a water supply agreement must: 25 (1) be fair, reasonable, and nondiscriminatory; and 26 (2) be sufficient to recover a proportionate share of: 27 (A) the debt service requirements of the city 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 S.B. No. 1941 associated with the lake plus a 50 percent coverage on the debt service; (B) the capital costs and management fee payments by the city under the city's contract with the Brazos River Authority plus a 75 percent coverage on the capital costs and management fee payments; and (C) the lake's operation and maintenance costs, including any capital expenditures associated with the lake that are not debt financed. (f) The operations and maintenance costs under Subsection (e)(2)(C) of this section include: (1) payments in lieu of taxes; (2) general fund transfers of 15 percent of gross revenues from water sales under this section; (3) costs associated with the city's watershed protection program for the lake; (4) costs of operating and maintaining the lake as a water supply or as a recreational area; (5) engineering, accounting, and legal services costs; the lake; costs; (6) utility costs; (7) costs associated with law enforcement related to (8) permit administration costs; (9) dam maintenance, inspection, and construction (10) costs associated with constructing, operating, 8 S.B. No. 1941 1 and maintaining lake recreational facilities and lands, roads, 2 ramps, and parking areas; 3 (11) costs associated with regulating and monitoring 4 the surface of the lake, municipal easements, and city -owned lands 5 around the lake; 6 (12) costs associated with environmental studies, 7 sampling, and testing of the lake and its watershed; and 8 (13) any other costs, fees, expenses, or other 9 financial liabilities arising from or related to the sale of water 10 to others as contemplated under this section. 11 (g) "Proportionate share" as used in Subsection (e) of this 12 section means a fraction the numerator of which is the annual 13 diversion rights under a water supply contract with the city and the 14 denominator of which is the yield of the lake, where yield is 15 determined annually by the city considering all permitted uses. 16 (h) The district may not limit or interfere with the use or 17 enjoyment by the city of water resources from the lake for municipal 18 water supply purposes or recreational purposes. Except as 19 authorized by the city, the district may not regulate the 20 operation, use, or water level of the lake. 21 (i) The city may not interfere with the district's use or 22 enjoyment of any water taken by the district out of the lake under 23 and in accordance with a water supply agreement or other applicable 24 agreement between the parties, except that the city may exercise 25 the right of approving service by the district outside the 26 boundaries of the district. 27 (j) Under a written agreement with the city, the district 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 S.B. No. 1941 may conduct agreed -upon activities related to the operation and maintenance of the lake and may conduct other supplemental activities related to public health, safety, recreation, water quality, and water conservation not inconsistent with the city's use of the lake as a municipal water supply. (k) The district recognizes that: (1) the city and the Brazos River Authority have entered into an agreement to design, build, operate, and maintain the lake; and (2) the district may not exercise its powers in a manner that would infringe on the rights of the Brazos River Authority under the river authority's agreement with the city regarding the lake. SECTION 1.09. BOARD OF DIRECTORS. (a) The district is governed by a board of five directors. Directors for positions one, three, and five shall be appointed by the Commissioners Court of Garza County, and directors for positions two and four shall be appointed by the Commissioners Court of Kent County. Directors serve staggered terms of four years. (b) To be eligible to serve as a director, a person must be at least 18 years of age and be: (1) a resident of the district; (2) an owner of real property in the district; (3) an owner of at least 10 percent of the outstanding interest of a corporation or general or limited partnership that owns real property in the district; (4) an agent, employee, officer, or director of a 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 S.B. No. 1941 corporation or partnership that owns real property in the district; (5) a person who served as an initial director; or (6) a member of the commissioners court of one of the counties. (c) If a vacancy in the office of director occurs, the commissioners court that made the original appointment shall appoint a qualified individual to serve the remainder of the term. (d) The board may remove a director for misconduct, for failure to comply with the attendance policy adopted by the board, or by unanimous vote of all of the remaining directors for failure to carry out the duties of directors. (e) As soon as practicable after a director is appointed, the director shall execute a bond for $10,000 payable to the district and conditioned on the faithful performance of the director's duties. Directors' bonds must be approved by the board. Each director shall take the oath of office prescribed by the constitution for public office. The bond and oath shall be filed with the district, and the district shall retain the bond and oath in its records. The district shall pay the cost of the bonds. (f) The directors shall elect a chair, a vice chair, a secretary, and any other officers the board considers necessary. (g) A position on the board is not a civil office of emolument for any purpose, including those purposes described by Section 40, Article XVI, Texas Constitution. (h) A director is not entitled to compensation for service on the board but is entitled to be reimbursed for necessary and reasonable expenses incurred in carrying out the duties and 11 S.B. No. 1941 1 responsibilities of a director. 2 (i) Three directors constitute a quorum for the 3 consideration of matters pertaining to the district, and a 4 concurrence of a majority of a quorum of directors is required for 5 any official action of the district, except that a concurrence of at 6 least three directors is required when the vote concerns: 7 (1) levying and assessing taxes; 8 (2) issuing bonds or other obligations; or 9 (3) making capital expenditures or entering into 10 contracts related to those expenditures. 11 (j) The initial appointed directors are: 12 (1) from Garza County: 13 (A) Joe D. Hardin; 14 (B) Mark Kirkpatrick; and 15 (C) Odie Hood; and 16 (2) from Kent County: 17 (A) Jim White; and 18 (B) Jody Ashley. 19 SECTION 1.10. ORGANIZATIONAL MEETING. As soon as 20 practicable after all initial directors have qualified for office, 21 the initial directors shall hold an organizational meeting at a 22 location within the district agreeable to a majority of the 23 directors. If the directors cannot agree on a location, the 24 organizational meeting shall be held at the Kent County Courthouse. 25 SECTION 1.11. DISTRICT CONFIRMATION ELECTION. (a) The 26 initial board of directors shall hold an election on the same day in 27 both counties in the district to confirm the establishment of the 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 S.B. No. 1941 district in the manner provided by Subchapter D, Chapter 49, Water Code. (b) If a majority of the votes cast in a county at a confirmation election is against the creation of the district, the board may not call another confirmation election in that county before the six-month anniversary of the former confirmation election. (c) Before a successful confirmation election, the district may carry on any business as the board may determine except that the board may not borrow money or impose or assess a tax of any kind or an assessment for any purpose. (d) The ballots shall be printed to provide for voting for or against the proposition: "The creation of the Lake Alan Henry Water District." (e) Except as provided by this section, a confirmation election shall be conducted in accordance with Sections 49.102 and 49.104, Water Code, and Section 41.001, Election Code. (f) If the majority of qualified voters in a county who vote in the election vote to confirm the creation of the district, that county is included in the district. If the majority of qualified voters in a county who vote in the election vote against confirming the creation of the district, that county is excluded from the district; however, the exclusion of that county does not affect the validity of the district in the county that has voted to confirm creation of the district. SECTION 1.12. OPERATION AND MAINTENANCE TAX. (a) The district may impose a tax for operation and maintenance purposes, 13 S.B. No. 1941 1 including funds for planning, constructing, acquiring, 2 maintaining, repairing, and operating all necessary land, plants, 3 works, facilities, improvements, appliances, and equipment of the 4 district and for paying costs of proper services, engineering and 5 legal fees, and organization and administrative expenses. 6 (b) An operation and maintenance tax may not be imposed by 7 the district until it is approved by a majority of the voters voting 8 at an election held in the district for that purpose in accordance 9 with Chapter 49, Water Code. After the tax has been authorized by 10 the district's voters, the board may levy the tax and have it 11 assessed and collected as other district taxes. 12 (c) An operation and maintenance tax election may be held at 13 the same time and in conjunction with any other district election, 14 including the confirmation election. The election may be called by 15 a separate election order or as part of any other election order. 16 (d) The proposition in an operation and maintenance tax 17 election may be for a specific maximum rate or for an unlimited 18 rate. 19 (e) If the district has any surplus operation and 20 maintenance tax funds that are not needed for the purposes for which 21 they were collected, the funds may be used for any lawful purpose. 22 (f) Sections 26.04, 26.05, and 26.07, Tax Code, do not apply 23 to a tax imposed under this section or an ad valorem tax imposed for 24 the payment of the interest on and principal of bonds issued by a 25 district. 26 SECTION 1.13. TAX LEVY FOR BONDS AND OTHER OBLIGATIONS. At 27 the time bonds or other obligations payable in whole or in part from 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 S.B. No. 1941 ad valorem taxes are issued, the board shall levy an annual ad valorem tax, without limit as to rate or amount, for each year in which all or part of the bonds are outstanding, and the district shall annually assess and collect the ad valorem tax, on all taxable property within the district, in an amount sufficient to: (1) pay the interest on the bonds or other obligations as it becomes due; (2) create a sinking fund for the payment of the principal of the bonds or other obligations when due or the redemption price at any earlier required redemption date; and (3) pay the expenses of assessing and collecting the tax. SECTION 1.14. CITY PROPERTY EXEMPT FROM DISTRICT TAXES. City property is exempt from taxation by the district. SECTION 1.15. ELECTION TO APPROVE ISSUANCE OF BONDS AND OTHER OBLIGATIONS. (a) Bonds and other obligations that are secured by and payable from ad valorem taxes may not be issued unless the bonds and the levy of the taxes are first approved by a majority of the qualified voters voting at an election held in the district for that purpose. (b) Bonds and other obligations that are not secured by and payable from ad valorem taxes are not subject to the requirement of an election and may be issued without an election. (c) An election required by this section shall be conducted in accordance with Subchapter F, Chapter 54, Water Code. SECTION 1.16. SERVICES FOR CERTAIN DEFINED AREAS AND DESIGNATED PROPERTY. (a) As provided by Subchapter J, Chapter 54, 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 S.B. No. 1941 Water Code, the district may define areas or designate certain property of the district to pay for improvements, facilities, or services that primarily benefit that area or property and do not generally and directly benefit the district as a whole. (b) An area defined under Subsection (a) of this section constitutes a separate election precinct in which a separate election must be held to determine if the improvements will be provided and a separate tax levied. (c) At an election in a defined area, a registered voter of the district who owns property in the defined area may vote in the area and not in the precinct of the voter's residence. SECTION 1.17. PRIOR APPROVAL BY COUNTIES OR MUNICIPALITY OF BONDS AND OTHER OBLIGATIONS. (a) A bond issuance or other obligation of the district must be approved, before the issuance, by an adopted order or resolution of each of the commissioners courts of the counties. (b) Any bonds or other obligations that are issued for the purpose of providing retail water and sewer collection services within all or any portion of the corporate limits of a municipality must first be approved by the governing body of the municipality. SECTION 1.18. DISSOLUTION. Except as provided by Section 1.19 of this Act, the board by a unanimous vote of all f ive directors: (1) may dissolve the district at any time; and (2) shall dissolve the district on written petition of the owners of 75 percent of the acreage of real property in the district. 16 S.B. No. 1941 1 SECTION 1.19. INDEBTEDNESS AND CONTRACTUAL OBLIGATIONS. 2 The board may not dissolve the district until the district's 3 outstanding indebtedness and contractual obligations have been 4 repaid or discharged. 5 SECTION 1.20. TRANSFER OF PROPERTY AND ASSETS. After the 6 board votes to dissolve the district, the board shall transfer 7 ownership of all property and assets of the district to the 8 counties. 9 SECTION 1.21. CONTRIBUTION; START-UP FUNDING; INITIAL 10 DIRECTORS. (a) Pending receipt of other revenues from the sources 11 authorized by this article, the board may adopt a fee schedule to 12 provide for the overhead and operations of the district. Each 13 county shall pay a fee not to exceed $10,000 a year for each 14 director appointed, unless the commissioners courts of the counties 15 approve a higher fee. The fee may be assessed each year for the 16 first three years of the district's operation. 17 (b) As soon as practicable on or after the effective date of 18 this Act, the commissioners courts of the counties shall designate 19 for each of the initial members of the board of directors the 20 position the director fills under Section 1.09(a) of this Act. 21 (c) The initial directors appointed to serve in positions 22 one and two shall serve until the first Saturday in May 2004, the 23 initial directors appointed to serve in positions three and four 24 shall serve until the first Saturday in May 2005, and the initial 25 director appointed to serve in position five shall serve until the 26 first Saturday in May 2006. 27 SECTION 1.22. FINDINGS RELATED TO PROCEDURAL AND PUBLIC 17 S.B. No. 1941 1 INTEREST REQUIREMENTS. (a) The legal notice of the intention to 2 introduce this Act, setting forth the general substance of this 3 Act, has been published as provided by law, and the notice and a 4 copy of this Act have been furnished to all persons, agencies, 5 officials, or entities to which they are required to be furnished by 6 the constitution and laws of this state, including the governor, 7 who has submitted the notice and this Act to the commission. 8 (b) The commission has filed its recommendations relating 9 to this Act with the governor, lieutenant governor, and speaker of 10 the house of representatives within the required time. 11 (c) The general law relating to consent by political 12 subdivisions to the creation of districts with conservation, 13 reclamation, and road powers and the inclusion of land in those 14 districts has been complied with. 15 (d) All requirements of the constitution and the laws of 16 this state and the rules and procedures of the legislature with 17 respect to the notice, introduction, and passage of this Act have 18 been fulfilled and accomplished. 19 (e) The public interest requires that the district adhere to 20 the terms of, and pay the rates and charges provided in, a water 21 supply agreement between the district and the city. 22 (f) Rates and charges set in accordance with Section 1.08(e) 23 of this Act will result in rates that are fair, reasonable, and 24 nondiscriminatory. 25 SECTION 1.23. EXPIRATION OF THIS ARTICLE; EXCEPTION. 26 (a) Except as provided by Subsection (b) of this section, if the 27 Lake Alan Henry Water District is not confirmed under Section 1.11 18 S.B. No. 1941 1 of this Act before September 1, 2005, the district is dissolved and 2 this article expires on that date. 3 (b) If the Lake Alan Henry Water District is not confirmed 4 under Section 1.11 of this Act or is dissolved after creation, 5 Section 1.07(g) of this Act nevertheless survives and remains in 6 effect. 7 ARTICLE 2. ZONING AROUND LAKE ALAN HENRY 8 SECTION 2.01. AMENDMENT. Subsection (a), Section 231.132, 9 Local Government Code, is amended to read as follows: 10 (a) This subchapter applies to: 11 (1) those parts of Garza County located within three 12 miles [mot) of the high water marks established for Lake Alan 13 Henry and Post Lake except land located in Garza County and owned by 14 the White River Municipal Water District; 15 (2) those parts of Kent County located within three 16 miles [Amp mile) of the high water marks established for Lake Alan 17 Henry; and 18 1(3) the area within 10,000 feet of where the shoreline 19 of Lake Cooper would be if the lake were filled to its storage 20 capacity. 21 ARTICLE 3. EFFECTIVE DATE 22 SECTION 3.01. EFFECTIVE DATE. This Act takes effect 23 immediately if it receives a vote of two-thirds of all the members 24 elected to each house, as provided by Section 39, Article III, Texas 25 Constitution. If this Act does not receive the vote necessary for 26 immediate effect, this Act takes effect September 1, 2003. 19 S.B. No. 1941 President of the Senate speaker of the House I hereby certify that S.B. No. 1941 passed the Senate on May 15, 2003, by the following vote: Yeas 31, Nays 0. Secretary of the Senate I hereby certify that S.B. No. 1941 passed the House on May 28, 2003, by the following vote: Yeas 144, Nays 0, two present not voting. Approved: Date Governor 20 Chief Clerk of the House Exhibit "C" YEAR ACRE-FEET 1 5 2 10 3 15 4 20 5 25 6 through 20 25 RAW WATER LEASE FROM LAKE ALAN HENRY PAGE 13 � ti' 4T-- a .: -'• -+fir. R+ ` h + �'+�5�"G yyk./{�i -ate � !x . � f ✓f^'. 4 t tYryy:Y. r Exhibit "B PERMIT TO APPROPRIATE STATE WATFP Resolution Nti, 200'6-P.W8. May 11, 2006 ' Item No. 5.11 APPLICATION NO. 4155 PI:NMIT NO. 4146 TYPES Section 11.121 Permittee s City of Lubbock Address : P. 0. Box 2000 Lubbock, Texas 79457 Received s August 21, 1901 Filed s October 5, 1901 Granted s August 6, 1904 Counties : Lubbock, Lynn, Garza and Kent watercourses South Fork of the watershed: Brazos River Basin Double Mountain Fork of the Brazos River, tributary of the Brazos River WHEREAS, the Texas water Commission finds that juri:;diction of the application is emtahlished; and WHEREAS, a public hearing has been held and specific findings of fact and conclusions of law were adopted in the form of a Commission order, as required by law; NOW, THEREFORE, this permit to appropriate and use State water is issued to City of Lubbock, subject to the following terms and conditions: 1. IMPOUNDMENT Permittee is authorized to construct, and before acquiring any rights hereunder shall construct, a dam and reservoir on the South Fork of the Doublv Fountain Fork of the Brazos River and impound therein not to exceed 115.937 acre-feet o• water. The dam and spillways will be located in the Houston and Great Northern Railroad Company Survey No. 55, Abstract No. I20, Kent County, and Abstract No. 810, Garza County; Houston and Greflt Northern Railroad Company Survey No. 57, Abstract No. 121, Kent County, and Abstract No. 811, Garza County; H. T. Cornelius Survey No, 56, Abstract No. 466, Kent County, and Abstract No. 802, Garza County; Houston and Great Northern Railroad Company Survey No. 69, Abstract No. 57, Garza County and will Williams Survey No. 70, Abstract No. 988, Garza County, Texas. Station 0+00 on the centerline of the dam will be S 29. 30' w, 5000 feet from the northwest corner of the Houston and Great Northern Railroad Company Survey No. $5, Abstract No. 120, Kent County, and Abstract No. 010, Garza County, Texas. 2. USE (a) Permittee i. luthorizvd In divert And use not to exceed 35,000 acre-feet of water 1,.or annum from the reservoir for municipal purporer. (b) Permittee is nuthorizvd to make secondary use of not. L.- exceed 21,000 acre-ft-et of water por annum (treated sewne7•• effluent) out of the maximum 35,000 acre-feet of water diverted fur munic•i1•nl purpot-or, to irrigate 10,000 acres or land in Luf,hock and Lynn Cntsnt iArc, Tvxar. (c) P-rmitt.•r, t•a .iuthorirrrf to use 'he impounded water for nonconsumpf iV[• I' *,.'.ttsona1 purpor,,.r. rnqr I (of 2 l ...r..e.:...�.. r�:..+..�'� t (d) Pvrmittee is authorized to divert and use not to exceed 200 acre-feet of water per annum for five years from the South Fork of the Double Mountain Fork of the Bravos River for construction or the dam acid reservoir. 3. DIVERSION (a) Point of Diversion: On the north shore of the reservoir, at a point S 430 W. 6500 feet from the northwest corner of the Houston and Great Northern Railroad Company Survey No. 5S, Abstract No. 120, Xent County, and Abstract No. 810, Garza County, Texas. (b) Maximum Rate: 69.6 cfs (31,200 gpm). 4. TIME LIMITATIONS Construction of the dam and related facilities herein authorized shall be in accordance with plans approved by.the Executive Director and shall be commenced within two years and completed within five years from the date of issuance of this permit. Failure to commence and/or• complete construction of the dam and related facilities within the period stated shall cause this permit to expire and become null and void, unless permittee applies for an extension of time to commence and/or complete construction prior to the respective deadlines for commence and completion, and thr- application is sub-zo luvntly granted. This permit is issued subject to all superior and senior water rights in the Brazos River Basin. Permittee agrees to be bound by the terms, conditions and provisions contained herein and such agreement is a condition precedent to the granting of this permit. All other matters requested in the application which are not specifically granted by th,s permit are denied. This permit is issued subject to the Rules of the Texas Department of water Resources and to the right of continual supervision of State water resources exercised by the Department. TEXAS WATER COMMISSION Date Issueds September 25, 1984 Attest: ��/ Mary Ann flefnvr Mary Ann Hefner, Chief Clr•rk'• Paul liopkins, Chairman /a/ t.ce D. M. Diurtart Lee R. M. eiggart, Commissioner R m pA1 ph Rominq, Commissioner Paqc 2 cf 2 r, Resolution No. 2006-RO208 ( May 11, 2006 Exhibit "E" Item No. 5.11 Dated: April 3, 1986 MEMORANDUM OF AGREEMENT RECITALS A. The City of Lubbock, Texas ('City') desires to construct the Justiceburg Reservoir Project to provide a municipal water supply for the City. B. The City of Lubbock, Texas, has obtained a Texas Water Code 5 11.121 Permit No. 4146 (the 'Permit') from the Texas water Commission ('Commission") to construct the proposed Justiceburg Reservoir Project on the South Fork of the Double Mountain Fork of the Brazos River in Garza and Kent Counties, Texas, and the White River Municipal Water District ("District') has obtained extensions of time on its permit to construct the proposed Post Reservoir on the North Fork of the Double Mountain Fork of the Brazos River in Garza County, Texas. The City may contract to obtain additional municipal water supply from the proposed Post Reservoir Project. tJ O C. Mr. and Mrs. Billy Wayne Williams, Mr. and Mrs. Billy 1 Huddleston, Mr. and Mrs. John Ward, Mr. and Mrs. John Reed, Mr. and Mrs. J.W. Headstream, Mr. and Mrs. Jim Boren, Mr. and Mrs. John Boren, Jr. and Mrs. Walter Boren ("Landowners") and Convest Energy Corporation ("Convest') are appealing the grant of the permit by the Commission to the City to construct the proposed Justiceburg Reservoir in Cause No. 369,838, Mr. and Mrs. Billy Wayne Williams, et al. vs. Texas Department of Water Resources, et al., pending in the 126th Judicial District Court of Texas County, Texas. D. Mr. and Mrs. Billy Wayne Williams, Mr. and Mrs. Billy Huddleston, Mr. and Mrs. John Ward, Mr. and Mrs. John Reed, Mr. and Mrs. J.W. Headstream, Mr. and Mrs. Jim Boren, Mr. and Mrs. John Boren, Mr. and Mrs. Walter Boren ("Landowners"), Convest Energy Corporation ("Convest"), Mr. Sidney Johnson, individually, d/b/a Johnson Cattle Company and as Trustee for the Estate of Mr. Weldon Johnson, deceased, and as Trustee for the Estate of Mrs. Weldon Johnson, deceased, Mr. Weldon Clay VOL '179 , oon u Johnson and Ms. Vicky Lee Johnson ('Johnson'), have appealed the decision of the Commission to grant extensions of time for the District to construct the Post Reservoir in both Cause No. 346,496, Mr. and Mrs. Billy Wayne Williams, et al. v. Texas Department of Water Resources, et al., pending in the 299th Judicial District Court of Travis County, Texas, and Cause No. 374,346, Mr. and Mrs. Billy Wayne Williams, et al. v. Texas Department of Water Resources, et al., pending in the 53rd Judicial District Court of Travis County, Texas. E. All of the parties desire to settle the three above -mentioned lawsuits. AGREEMENT The Parties hereto, intending to be legally bound hereby, hereby undertake, covenant, and agree that the settlement is effective subject to the terms, conditions and provisions set co CD forth below; 01 co I. O Upon signing of this Agreement by the Parties hereto, the City will pay to the firm of Graves, Dougherty, Hearon & Moody, Trustee for Landowners, Convest and Johnson (collectively referred to as 'Protestants') the total amount of attorneys' fees and expenses and consultant fees and expenses of not to exceed the sum of $425,000.00, incurred in their prosecution of the protest to the Application of the City of Lubbock for a water permit to construct the Justiceburg Reservoir and the Applications of the White River Municipal Water District to obtain extensions of time to construct the Post Reservoir and any appeals from the decision of the Texas Water Commission granting such permits or extensions. Prior to the date of contract of sale as provided in Section VII, the City will satisfy itself as to the ownership by Landowners of the property necessary to the full accomplishment of the terms of this Agreement and Landowners will cooperate with City in that regard. VOL II. Upon payment of the amounts described in section I above, the Landowners will allow the City and their consultants reasonable access, without cost, to the property of Landowners in and about the proposed Justiceburg Reservoir site in order to conduct additional tests and perform additional geotechnical evaluations to ascertain the design of the proposed Justiceburg Reservoir project. These tests are to be completed within twelve (12) months after the date of payment of the amounts described in section I above. If, after the tests and evaluations described herein are conducted, the City in its sole discretion elects to proceed with the proposed Justiceburg Reservoir Project, the City will, within fifteen (15) months after the date of payment of the amounts described in section I above, by written communication to the attorneys for 00 cD Protestants, advise the Protestants that the project is feasible CD W and will, within eighteen (18) months after the date of payment � of the amounts described in section I above, employ consulting engineers for the final design of the proposed Justiceburg Reservoir project, and, within thirty (30) months after the date of payment of the amounts described in section I above, present to Protestants an estimate of the amount of acreage required to complete the project, exclusive of the land requirements necessary to satisfy the conditions of the.Section 404 Permit. III. The final design of the proposed Justiceburg dam and reservoir shall, as nearly as possible, provide that the service road and power lines follow property boundaries to the pump station and dam site. The Landowners, when necessary, will provide the City easements described by metes and bounds for one or more water pipelines, electric transmission lines and communication lines from the pump station across their property, together with temporary construction, easements to construct and 82 VOL '179 1 r install water pipelines, electric transmission lines and communication lines, the pump house, dam, reservoir and other facilities required by City to complete the Justiceburg Project. The Landowners will be compensated by City at the rate of $20.00 per rod per sixty (60') foot width for all such permanent and temporary easements, which compensation shall be paid in cash at the time such easements are granted. Landowners, when necessary, shall provide the City, without cost, an easement for a service road to be fenced and constructed by the City, at the City's sole expense, which shall be an all-weather road fenced on both sides and accessible to the City and Landowners whose land immediately adjoins the road. Landowners shall maintain the fences after construction and the City shall maintain the service road. This road shall not be accessible to the public nor dedicated as a public 00 roadway. CO O IV. CT1 C� In the event that City, in its discretion, determines to c> construct the Justiceburg Reservoir as contemplated by this Agreement and does construct such facility, then and only then the City will grant to the Landowners Reed, Ward, and Huddleston, one tap each to allow use of the raw water in the pipeline(s) for such Landowners' domestic and normal ranching livestock consumption on Landowners' property. No warranty will be given as to the quality or the availability of water from the pipeline(s). The Landowners will provide a recording meter at each tap to measure the volume of water taken which shall be limited to twenty (20) acre feet per year per tap. The City shall have reasonable access to each tap and meter for the purpose of calibrating the same from time to time. The Landowners shall own the land down to the normal operating level of the lake which is'defined as 2220 feet above mean sea level, except in the limited area where additional land oL '179183 "n X is required for the location of the dam tse f, tLa_ spillway discharge channel, the emergency spillway, borrow areas as needed, public access areas, unusable land, pump stations, the service road, the dam abutments, and access between the pump station and the dam structure, and any land actually required for construction and/or operation of the dam, the pump station and other necessary facilities associated with the reservoir. In addition, without further compensation, the City, upon reasonable notice to Landowners, shall be granted temporary access to points on the shore of the lake for reasonable purposes necessary during construction and subsequent operation of the dam and reservoir. The Landowners and the City or its employees, agents and contractors, in the performance of their official duties with the City, shall have the exclusive right to use land below the normal operating level of the lake at times when the lake is 00 t9 below normal operating level, except a q.a between the water C7 01 line and unusable land and public access areas. At such times, Co Landowners may use such land for'livestock grazing and for their personal recreational uses. Landowners shall have no right however to build, place or erect any structure or facility within such areas. The Landowners shall provide the City, without cost, a restrictive easement and flood easement from elevation 2220 feet above mean sea- level to elevation 2245feet above mean sea level, which easement shall provide City (a) the right to intermittently overflow, flood or cover such land, at any time with flood, slack or backwater created by construction, maintenance and operation by City of .7usticeburg Dam and the Reservoir and for the storage of water created by the construction of the Dam; (b) the right to enter upon said land, with due notice and without loitering, to clear, destroy or dispose of any timber, brush, obstruction, accumulation, trash, filth or any other thing which would in any way interfere with VOL 179P= :184 k the construction, maintenance and operation of such dam and reservoir or tend to render the same unsafe or unsanitary and to prevent the drainage or dumping of refuse, sewage or other material into such reservoir and- to carry out an adequate program of pollution control; and (c) the right to prevent the construction of, or the removal, with due notice, of any structure or facility located or to be located on said land. The Landowners shall also impose, without cost to the City, a restrictive easement on such portion of their land which is between elevation 2245 feet above mean sea level and 300 feet horizontal distance from elevation 2220 feet above mean sea level if the 300 feet horizontal distance contains a larger area of land than is contained between elevations 2220 feet and 2245 feet above mean sea level, which easement shall provide the City (a) the right to enter upon said land, with due notice and 00 CO without loitering, to clear, destroy or dispose of any timber, p U1 brush, obstruction, accumulation, trash, filth, or any other 0.) thing which would in any way interfere with construction, maintenance and operation of such dam or reservoir or tend to render the same unsafe or unsanitary, and to prevent the drainage or dumping of refuse, sewage or any other material into such reservoir and to carry out an adequate program of pollution control; and (b) the right to prevent the construction of, or the removal of, with due notice, any structure or facility located or to be located on said land. Structures and facilities are defined as waterwells, septic systems, cesspools, barns, sheds, places of habitation, and boat docks, but shall not include pens, gates, fences, cattleguards or boat ramps. All structures constructed and maintained by the Landowners shall be at the Landowners risk with regard to flooding by the city': reservoir. Each Landowner shall have the right to construct two boat ramps, which shall comply with applicable regulations imposed by the United States Army Corps of Engineers for the construction of such ramps at the Justiceburg Reservoir t vai 179r� ' 185 r Project. V. Both the City and the Landowners desire that the minimum amount of public access to or from Landowners' property be granted to the proposed Justiceburg Reservoir. The Landowners agree to support in all things the City's application before the United States Army Corps of Engineers for the grant of a Section 404 Permit according to the provisions of 33 U.S.C.A. Section 404 and the regulations adopted thereunder. City and Landowners agree in the Section 404 proceedings to minimize public access to the lake from the Landowners' property. The City shall initiate and prosecute the Section 404 proceeding with reasonable diligence. VI. Upon completion of the final design the City will be allowed W to survey the reservoir site in order to determine the total number of acres below the normal operating level, the number of W C7 acres required for the dam structure, dam abutments, borrow areas, pump station and access thereto, spillways, return, other structures, unusable land, and public access areas. Except as provided in sections III and IV with respect to the easements therein referred to, the City agrees to pay or compensate the Landowners for each acre taken by the City in fee title (the oil, gas, and other hydrocarbon minerals being reserved to Landowners as set out below) to complete the Justiceburg Reservoir Project, as follows: $800.00 per acre which is the City's estimate of avoided costs by settlement. Landowners, however, shall have the right to use any of theland to be acquired by City in fee for normal ranching operations from the date that the City contracts to acquire such fee title until such time as the City pays the entire price for such land and notifies Landowners that it requires such land for its use. Landowners shall not be required to pay any rent or other consideration to City for use of the.land above -mentioned. got 'i786 z The City shall purchase all unusable land which is designated by red color code on the map attached hereto as Exhibit 'A', which Exhibit is made a part of this Agreement for all purposes. The Parties agree that after the final design and construction plans of the reservoir are completed, other property of Landowners may become unusable land and such additional potential unusable land is designated on Exhibit 'A' by yellow color code. For purposes of such additional potential unusable land, the term 'unusable land' shall mean property owned by any Landowner that is a party to this Agreement, to which all reasonable access to such property or reasonable access to livestock water supplies to such property or reasonable use of such property for normal ranching operations will be denied due to the isolation of such property by water in the reservoir or City's facilities related to the reservoir, and/or property owned by others. The owners of all 'unusable CO O land' shall be paid for same at the rate of $800.00 per acre. W The City shall have the right to designate as 'public access areas" any or all of those areas designated by green color code on the map attached hereto as Exhibit 'A', which Exhibit is made a part of this Agreement for all purposes. The owners of "public access areas" shall be paid for same at the rate of $800.00 per acre. The City shall construct and maintain a fence around the public access areas at its sole expense. The Landowners will retain all oil and gas, and other hydrocarbon mineral rights and other substances extracted with or as a by-product of the extraction of such hydrocarbon minerals and all development rights from such minerals attached to the land acquired by the City, whether in fee or by easement. Included in such rights will be the right to drill hydrocarbon oil and gas wells through the reservoir and to locate such wells on barges or man-made islands in the reservoir itself. All such structures shall be' constructed and maintained at the Landowners' and Operator's risk with regard to flooding VOL 379187 J I by the City's reservoir. With respect to all minerals presently owned by Landowners and not currently under lease, Landowners and the City expressly agree that all current and future -hydrocarbon oil and gas well drilling, storage and transportation activities, during both construction and operation and all facilities incidental thereto, shall be operated and maintained in such manner as will protect from any contamination the purity of the water impounded in the reservoir at all times pursuant to the applicable Regulations of the Railroad Commission of Texas; and that the location of any drilling sites on land owned in fee by the City shall be subject to approval by the City, which approval shall not be unreasonable withheld. VII. Within 60 days after: (i) the date the City presents to Go Landowners an estimate of the amount of acreage required to complete the project pursuant to Section II hereof, or, if the W City fails to deliver such estimate as therein required, the date the City is required to present such estimate; or (ii) the date the City obtains a Section 404 Permit from the United States Army Corps of Engineers, or following completion to final judgment by City of any appeal which may be taken from the Corps' issuance of a permit, whichever last occurs, the City agrees to contract for the purchase from Landowners of the surface land to be acquired in fee (the oil, gas and other hydrocarbon minerals being reserved to Landowners), by warranty deed, free and clear of all outstanding liens, mortgages, deeds of trust or other indebtedness but subject however to any and all easements, leases, rights -of -way, restrictions, outstanding mineral interests and royalty interests, if any, relating to or affecting said property, and shall pay to the Landowners an amount equal to twenty-five (25%) percent of the amount obtained by multiplying $800.00 times the number of acres required to be acquired by the City in fee as determined in section VI above. von 179m188 This payment will constitute a non-refundable deposit and will be made pursuant to a contract of sale for the necessary land; however, the City even after payment of the non-refundable deposit and before the payment of •the balance of the purchase, as herein provided, expressly retains the right to elect not to proceed with the project or the purchase of the property which is the subject of this Agreement. Except for specific performance to obtain cancellation of S 11.121 Permit No. 4146 as provided for below, no further remedy, recovery, or any other relief shall be applicable other than forfeiture of the non-refundable deposit and of the legal fees under section I above. The City warrants that it has established and funded a dedicated account for the purpose of the land acquisition contemplated in this Agreement. 00 The City shall have, and the contract of sale 0 Cl above -mentioned shall provide, the option to pay the full amount CQ C� then due and owing on the land purchased pursuant to this section at any time. In the event the City does purchase the land necessary for the Justiceburg Reservoir as determined in section VI and later decides not to construct the reservoir or utilize the land, then in such event, and to the extent it is authorized to do so by State law, Landowners' shall have a right of first refusal to repurchase the land from the City. The right of first refusal herein granted to the Landowner shall be exercised by him within 120 days from the date the City notifies all of the Landowners of its intention to accept a bona fide offer for the purchase of the property. In the event that the Landowner whose land was purchased by the City does not exercise his right of first refusal or declines to exercise said right, the other Landowners who are parties to this Agreement shall have the right to purchase the land in question provided that they do so within the 120 day period above set forth. The remaining seventy-five (75W) percent of the purchase i89 a 1+ price due hereunder shall, unless the City elect not to proceed with the project as above provided, be due and payable by the City prior to entry into actual construction of the dam, reservoir or any major facility relating thereto, and in no event later than three (3) years following the dismissal of litigation as provided in section VIII, below. In the event the City fails to pay the remaining purchase price as herein provided, the City will seek cancellation of its S 11.121 Permit No. 4146 and Landowners have the right to enforce cancellation by specific performance. The balance of the purchase price to be paid Landowners (i.e., the total purchase price payable hereunder less the non-refundable deposit) shall be increased monthly from and after thirty (30) days after the date of dismissal of the litigation as hereinbelow provided at the rate of ten percent (10%) per annum until full and final payment of 00 all sums due hereunder is made by the City. The City shall pay 0 to the Landowners semi-annually the amount of the increase W accruing during such six (6) month period, beginning at the end of the first six (6) months after the date of dismissal of the litigation and continuing regularly and semi-annually thereafter until the entire amount of the increased purchase price is paid in full. Such payments shall be non-refundable and shall be credited toward payment of such increased purchase price. In the event that the United States Corps of Engineers requires as a condition to granting of a Section 404 Permit that the City acquire additional land over and above the amount determined in section V1 needed for the construction of the Justiceburg Reservoir, then in such event the parties hereto agree that the $800.00 per acre purchase price shall have no application to any such additional land acquired under such circumstances, except where the Section 404 land designated is owned by the Landowners and is contiguous to the lake. City agrees to indemnify and hold Landowners harmless from any and all claims or liabilities, or damages based on the VOL '179F_.:1O negligence of the City or any of its employees, agents and contractors related in any manner to the City's surveying, feasibility investigations and construction and operation of the Justiceburg Dam and Reservoir. VIII. Upon payment of the twenty-five (251) percent of the estimated land costs by the City, the Landowners agree to dismiss, with prejudice, their appeals from the decisions of the Texas Water Commission docketed as Cause No. 368,838 pending in the 126th Judicial District Court of Travis County, Texas, Cause No. 346,496, pending in the 299th Judicial District Court of Travis County, Texas, and Cause No. 374,346 pending in the 53rd Judicial District Court of Travis County, Texas. Landowners agree to pay court costs. In addition to the dismissal of the above -mentioned pending litigation, the Landowners further agree, upon the payment of twenty-five (25%) percent of the estimated land cost by City, fb Cfl that they shall reasonably cooperate with the City in connection O 01 with City activities in planning, financing, constructing or CO C) maintaining the Justiceburg Reservoir or the Post Reservoir. IX. Prior to the payment by the City to Landowners of the amounts described in section I of this Agreement, the Parties shall prepare and agree upon definitive documents required to effectuate this Agreement. A form of each document shall be attached to this Agreement for all purposes. X. During the pendency of the implementation of this Agreement and prior to the dismissal of the lawsuits filed by the Protestants, the Parties to this Agreement agree to make the necessary filings in the various courts in which the abo•ie-mentioned suits are pending to abate such suits, except for the perpetuation of testimony, if such be deemed necessary, but without regard to the other Party's right.to object in court C to perpetuation of testimony. XI. Each Party hereby confirms to each other Party that such Party: (a) had made its own• thorough and independent investigation and analysis of the terms and provisions of this Agreement and the transactions contemplated thereby; and (b) has not relied on any such investigation or analysis thereof made by any other Party or its counsel or other advisors or on any advice, statement or other communication made by any other Party or its counsel or other advisors with respect to the terms and provisions of this Agreement or the transactions contemplated thereby. XII. Each Party to this Agreement represents and warrants that all corporate (or other official) action on its part necessary 00 for the execution and delivery and subject to the conditions co O contained herein, performance of this Agreement and the U1 GJ settlement has been duly and effectively taken. O XIII. All representations, warranties and covenants contained herein or in the settlement shall survive the settlement date and will bind and inure to the benefit of the respective succesors and assigns of the Parties hereto, whether so expressed or not. XIV. No failure or delay on the part of any Party hereto in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof. No modification or waiver of any provision of this Agreement or the settlement nor consent to any departure by any Party therefrom shall in any event be effective unless the same shall be in writing, and then such waiver or VOL I179r -� 192 consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Party in any case shall entitle such Party to any other or further notice or demand in similar'or other circumstances. XV. Notices and other communications provided for herein shall be in writing and shall be delivered or mailed (or in the case of telegraphic communications, if by telegram, delivered to the telegraph company, and if by telex, graphic scanning or other telegraphic communications equipment of the sending Party hereto, delivered by such equipment) addressed at such address as the Party to be addressed shall have provided the other Parties hereto for such purpose. All notices and other communications given to any Party hereto in accordance with the provisions of this Agreement shall be deemed to have been given QO when sent by registered or certified mail, if by mail, or when CM O delivered to the telegraph company, charges prepaid, if by UI GJ telegram or when receipt is acknowledged, if by any telegraphic communications equipment of the sender, in each case addressed to such Party in accordance with the latest unrevoked direction from such Party. XVI. Each Party hereto shall provide such further instruments, documents and assurances as shall be necessary or desirable to carry out, subject to the terms and conditions hereof, the provisions hereof and of the settlement and, subject to the terms and conditions hereof, do all things necessary or proper to carry out the provisions hereof and of the settlement. XVII. This Agreement and the settlement shall be governed by and construed in accordance with the laws of the State of Texas. XVIII. This Agreement may be executed by each of the Parties hereto or separate counterparts, each of which when so executed shall VOL '179��'�:193 be deemed to be an original, and such counterparts shall together constitute but one and the same instrument. Convest and Johnson will execute a separate Agreement with the City, the execution of which shall be a condition to the City's execution of this Agreement. In the event Convest elects to dismiss its appeals from the decisions of the Commission prior to the City's execution of this Agreement, execution by Convest of a separate Agreement with the City shall not be a condition to the City's execution of this Agreement. XIX. The words, City, Landowners, Landowner, Convest and Johnson shall be given the following meaning as used in this Agreement: 1. City shall mean the City of Lubbock, Texas. The City of Lubbock, Texas, however, shall be construed to OD include any governmental, corporate or other entity, by CO O or through which the City of Lubbock may in its CJt GJ discretion select for the performance of any of its (Z) obligations hereunder, toward testing, planning, construction, maintenance or operation of the proposed facility and any successor, transferee or assignee of the City's § 11.121 Permit No. 4146. The City of Lubbock may act through water districts created by law or by contract. The designation of such entity or individual for performance or the transfer of said Permit shall in no way affect the obligations owed by the City to any other party arising from this Agreement, nor affect any obligation owed to the City by any other party arising from this Agreement. 2. Landowners shall mean all individuals named in recital (C), above set forth in this Agreement. 3. Landowner shall mean any one of the individuals named in recital (C) of this Agreement with husband and wife being considered as one Landowner. �a� 179 =194 4. Convest shall mean Convest Energy Corporation. 5. Johnson shall mean Mr. Sidney Johnson individually, d/b/a Johnson Cattle Company and as Trustee for the Estate of Mr. Weldon Johnson, deceased, and Mrs. Weldon Clay Johnson, deceased, and Mr. Weldon Clay Johnson and Ms. Vicky Lee Johnson. 6. Justiceburg Reservoir shall mean all areas necessary to complete the project as determined in Paragraph III, IV, and VI, above, but does not include any area acquired to meet the requirements of a Section 404 Permit. IN WITNESS WHEREOF, the Parties hereto have caused by these presents to be executed by their duly authorized representatives as of the date first above written. CITY OF LUBBOCK, TEXAS 1 AL AN HENRY, M YOR Cb G� ATTEST: U� CITY �ECRETARY MR. -BILLY WAYNE WILLIAMS �(r' e MRS. BILLY WAYNE WILLIAMS MR. BILLY HUDDLESTON 4. MP.S. BILLY`rfUDDLESTON (.. ,/�y/r .viL�%VY/ MR. - ONN WARD you '179rt," 195 r MRS. JOH WARD MR. JOHN REED w MRS. JOH /REEgD MR J.W. HEADSTREAM MRS. J.W. HEADSTREAM MR;/JIM BOREU MRS. JIM49OREN MR .,,/JOHN BOREN MRS. Jf3HN BOREN MR. WALTER BOREN MRS. WALTER BOREN frb/meh/0632j 3/27/86 OD C� O CA W cO VGL '179 Ft 198 w r EXHIBIT "A" (This Exhibit has been omitted from this copy due to size and inability at this time to secure reproduction of true and correct copies thereof. One duplicate original has been dis- tributed to each side of the Agreement on April 3, 1986. The original is on file with the Agreement in the office of the City Secretary of the City of Lubbock, Texas.) 00 CD O CJ1 W O VOL '179 « -. t97 Note Re: EXHIBIT "A" FORM I. - CONTRACT OF SALE COMMENTS Contract for purchase of land is required by Section VII of the ayrcement. It is required to be executed within 60 days after (1) the presentation by city to landowners of amount of acreage required (or the date same is required) or (2) date of final 404 permit, whichever last occurs (Section VII). It is contemplated that a separate contract will be executed between each separate landowner and the City. It is further contemplated that a copy of Memorandum of Agreement will be attached and incorporated as a part of each such contract for certainty and clarity. Not all provisions contained in the attached form will necessarily apply to each landowner and any such inapplicable provisions will be omitted in .that circumstance. It will be the responsibility of the City to prepare each such contract and submit same to each landowner when timely. I have provided for legal description of all temporary and permanent easement areas for water pipe lines, transmission lines, communication lines, service road, etc., in the contract. It is possible that the specific areas of all or part of those easements may not yet be determined by the date on the contract. In which case those descriptions will be omitted from the contract for later inclusion only in the subsequent easement instrument itself. 00 (0 O U1 W CO VOL 179r! ..198 0 CONTRACT OF SALE THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF BY THIS AGREEMENT AND CONTRACT, of County, Texas, as the -Seller and hereinafter called "LANDOWNER," and the City of Lubbock, a home rule municipal corporation of Lubbock County, Texas, as the Buyer and herein- after called "CITY," by which Landowner agrees to sell to City and City agrees to buy from Landowner the property, rights, titles and easements hereinafter described upon the terms and conditions following: WITNESSETH: 1. That Landowner has agreed, and does hereby agree, to sell and convey unto City, and does hereby sell and agree to convey unto City the surface land to be acquired in fee (the oil and yas and other hydrocarbon minerals being reserved to Seller as set forth in the Memorandum of Agreement attached hereto) by warranty deed, free and clear of all outstanding liens, mort- gages, deeds of trust or other indebtedness, but subject to any and all easements, leases, rights -of -way, restrictions, out- standing mineral interests and royalty interests, if any, relating to or affecting the herein described real property, existing on the date of execution of the Memorandum of Agreement, all those certain tracts or parcels of land lying and situated in County, Texas, and being more particularly de- scribed as follows, to -wit: TRACT(S) A: (Legal description of all land within the reservoir, being land from elevation 2220 mean sea level or less). 00 C.0 O V1 W O TRACT(S) B: (Legal description, as appropriate, of all land to be used for the dam, spillway discharge channel, emergency spillway, borrow areas as needed, pump stations, dam abutments, access between the pump station and the dam structure, and any other land actually required for construction and/or operation of the dam, the pump station and other necessary facilities associated with the reservoir, etc.) TRACTS) C: (Legal description, as appropriate, of all unusable land). VOL 1 1 9 �� :199 TRACTS) D: (Legal description, as appropriate, of all public access areas, etc.) 2. That Landowner has agreed, and does hereby agree, to sell and convey unto City, and does hereby sell and agree to convey unto City, subject to the matters hereinabove described, the following described easements along, over and across, all those certain tracts or parcels of land situated in County, Texas, the nature and purpose of such easements and the lands encompassed by same being more particularly described as follows, to -wit: A. A restrictive easement and flood easement from elevation 2220 feet above mean sea level to elevation 2245 feet above mean seal level, such easement area being more particularly described by metes and bounds as follows: (legal description) B. The Landowner shall impose a restrictive easement on such portion of Landowner's land which is between elevation 2245 feet above mean sea level and 300 feet horizontal distance from elevation 2220 feet above mean sea level where the 30o feet horizontal distance contains a larger area of land than is contained between elevations 2220 feet and 2245 feet above mean sea level, such easement area being more particularly described by metes and bounds as follows: (legal descriptions) 00 to C. One or more permanent water pipelines easements, such O easement areas being more particularly described by metes UT and bounds as follows: W O (legal descriptions) D. Permanent electric transmission lines easements, such easement areas being more particularly described by metes and bounds as follows: (legal descriptions) E. Permanent communication lines easements, such easement areas being more particularly described by metes and bounds nq folinws: (legal descriptions) F. Temporary construction easements For the following purposes, the areas and purposes of such easements being more particularly described by metes and bounds as follows: (legal descriptions by purpose) G. Easement for an all-weather service road, such easement area being in the location described on Exhibit "A" to the Memorandum of Agreement attached hereto and being more particularly described by metes and bounds as follows: (legal description) Von 179 Ft..: 200 r 3. That Landowner further has agreed, and does hereby agree, to sell and convey unto City, and does hereby sell and convey unto City, such other rights, titles, interests and privileges, and upon such terms, conditions and limitations, as agreed, set forth and defined in that certain Memorandum of Agreement to which Landowner and City were parties, dated the day of April, 1986, a copy of which Memorandum of Agree- . c ment is attached hereto and by such attachment is incorporated and made a part of this Contract of Sale for all purposes. In the event of any inconsistency between this Contract of Sale and the attached Memorandum, either by inclusion of matter or omission, the provisions of the Memorandum of Agreement shall control. } 4. That in consideration of the conveyance to it by Landowner of the property, rights and easements above described, CiLy oyrees Lu Noy Lo Landowner Lhe amounLs calculated, and at the times provided, in the Memorandum of Agreement attached hereto and made a part of this Contract. This consideration is summarized only as follows: A. The sum of $800.00 per acre for all acreage defined by metes and bounds in paragraphs 1A, 1B, 1C and 1D above, which sum shall be full consideration for all titles and easements described in paragraphs 1A, 18, 1C9 1D, 2A, 28 and 2G (as applicable). B. The sum of $20.00 per rod (and for an area 60 feet in width) for all easement areas defined in paragraphs 2C, 2D, 2E and 2F (as applicable). Notwithstanding anything contained herein or the Memorandum of Agreement attached hereto to the contrary, it is acknowledged and agreed that certain Landowners may not, due to prior separa- tion or conveyance, own the minerals on their property. Such Landowners shall only be required to conveyjthe surface without the minerals and shall be compensated at the rate of $800.00 per acre for the property conveyed. 5. The times and amount of each such payment shall be as specifically provided in the Memorandum of Agreement. The City shall consider and treat all other terms, conditions and limita- tions, as set forth and defined in the attached Memorandum of Agreement to the extent same imposes duties or obligations upon 00 C� O Cil W O 3 _ . , A r%Q n. : %� 17 City, as required of City as a part of its consideration due hereunder. Unless otherwise expressly specified, in the event of any inconsistency between this Contract of Sale and the attached Memorandum, either by inclusion or omission, the provisions of the Memorandum of Agreement shall control. 6. Prior to the date any warranty deed or easement instrument is required by this Contract or the Memorandum of Agreement attached, the City at its sole cost shall arrange to secure such abstracts of title covering the real estate which is the subject of this Contract as appropriate for examination by an attorney of its own selection, and/or it may arrange to secure or obtain at its sole cost a policy of title insurance. 7. Any objections to the title appearing upon examination or in the process of securing a policy of title insurance, which objections remain the duty of Landowner to cure under the terms of the Memorandum of AyreemenL, shall be set forth in writing and delivered to Landowner for cure or elimination at least sixty (60) days prior to the date of execution of any such warranty 00 deed or easement right subsequently provided under the Memorandum C.0 of Agreement. UZ W 8. Landowner shall have a reasonable time to cure said objections and show title as is required under the terms of the Memorandum of Agreement, but that reasonable time shall not exceed the date provided for the deed or easement grant provided in the Memorandum of Agreement. 9. If Landowner fails or refuses to correct such title defPrt, City, in its option, may enforce specific performance of same. 10. Taxes on the real estate herein conveyed or to be conveyed, shall be prorated to the date of the final payment for all land taken in fee simple. 11. Landowner agrees to sign and execute such warranty deed and easement instruments as conform with the Memorandum of Agreement. The duty to prepare all such instruments shall be upon City. , Vol r17 i r 12. The parties hereto agree that compliance by each of all terms, conditions, provisions, and limitations contained in the above described Memorandum of Agreement (as attached hereto) is of the essence of this Contract. 13. This Contract shall be binding upon in inure to the benefit of the heirs, executions, administrators, successors and assigns of the respective parties to this Contract. 14. This Contract and all attachments thereto, may be filed of record in the Deed Records of any and all counties in which all or any part of the property or property interests involved lies or is situated. EXECUTED in duplicate originals as of the _ day of , 19 CITY OF LUBBOCK, TEXAS (BUYER) SELLERS: DY: MAYOR ATTEST: City Secretary 00 C.0 O (acknowledgements as appropriate) Cl u WV -s- vat '179cs : 2W FORM II. WARRANTY DEED COMMENTS The warranty deeds will be executed at the time of the payment of Lhe final 75o balance of the compensation due for the property to be conveyed in fee. This could, in the option of the City, be even as early as the date provided for the first 25'0 of the compensation. It is contemplated that a separate warranty deed will be prepared for each separate landowner. By the time of the warranty deeds most of the mutual obligations of the parties under the Memorandum of Agreement will already have been accomplished. The language of the deed accordingly omits reference to obligations by then already accomplished and is designed only to incorporate, by inclusion and by reference to the Agreement, obligatiuns still remaining as of such time. It is contemplated that by such time most, if not all, specific purpose easements will have been separately executed. To the extent any have not been, however, this obligation will continue. It will be the duty of the City to prepare, submit and file all deeds of record. 00 O 01 W O col 179r� 204 THE STATE OF TEXAS COUNTY OF !� WARRANTY DEED KNOW ALL MEN BY THESE PRESENTS: THAT _ (name of specific lan(lowner/grantor) , all of the County of State of Texas, for and in considera- tion of the sum of TEN AND NO/100 DOLLARS ($10.00) to us now or heretofore cash in hand paid by the grantee hereinafter named, the receipt and sufficiency of which is hereby acknowledged, and under the threat and eminence of condemnation by the City of Lubbock, Texas, a governmental entity with the power of condem- nation, the said City having finally determined by resolution that the public interest is served by the acquisition of the herein -described real property, have GRANTED, SOLD and CONVEYED, and by these presents do GRANT, SELL and CONVEY unto the CITY OF LUBBOCK, a home rule municipal corporation of Lubbock County, Texas, all of the following described real property in County, Texas, more particularly described as follows: TRACTS(S) A. (Legal description by metes and bounds of property within reservoir area, 2220 feet above mean sea level and below.) c% n (Legal description by metes and bounds of property as required for the location of the dam itself, the spillway discharge channel, the emergency spillway, borrow areas as Go CO O UT CV O needed, pump stations, the dam abutments, and access between the pump station and the dam structure, and any land actually required for construction and/or operation of the dam, the pump station and other necessary facilities associated with the reservoir.) TRACT(S) C. (Legal description by metes and bounds of public access areas, as applicable.) TRACT(S) D. (Legal description by metes and bounds of unusable land, as applicable.) vGL 179ry 205 In and for the same consideration above provided the grantors have further by these presents GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents do GRANT, BARGAIN, SELL and CONVEY unto the said City of Lubbock, Texas, its legal represen- tatives, successors and assigns, fur'the use of he said City of Lubbock, a restrictive easement and flood easement from elevation 2220 feet above mean sea level to elevation 2245 feet above mean sea level, which easement grants City (a) the right to intermit- tently overflow, flood or cover such land, at any time with fluud, slack or backwater created by construction, maintenance and operation by City of its proposed Justiceburg Dam as)d the Reservoir and for the storage of water created by the construc- tion of the Dam; (b) the right to enter upon said land, with due notice and without loitering, to clear, destroy or dispose of any timber, brush, obstruction, accumulation, trash, filth or any oLher Lhing which would in any way interfere with the construe - Lion, maintenance and operation of such dam and reservoir or tend Co to render the same unsafe or unsanitary and to prevent the C0 drainage or dumping of refuse, sewage or other material into such CV reservoir and to carry out an adequate program of pollution control; and (c) the right to prevent the construction of, or the removal, with due notice, of any structure or facility located or to be located tin said land. This restrictive easement and flood easement lying and being situated in the County of , State of Texas, and being more particularly described as folluws: (Legal description by metes and hounds) In and for the same consideration above provided the grantors have further by these presents GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents do GRANT, BARGAIN, SELL and CONVEY unto the said City of Lubbock, Texas, its legal representa- tives, successors and assigns, for the use of the said City of Lubbock, a restrictive easement on such portion of their land which is between elevation 2245 feet above mean sea level and 300 r feet horizontal distance from elevation 2220 feet above mean sea level if the 300 feet horizontal distance contains a larger area of land than is contained between elevations 2220 feet and 2245 Feet above mean sea level, which grant provides the City (a) the right to enter upon said land, with due notice and without loitering, to clear, destroy or dispose of any timber, brush, obstruction, accumulation, trash, filth, or any other thing which wo»ld in any way interfere with construction, maintenance and uperation of such dam or reservoir or tend to render the same unsafe or unsanitary, and to prevent the drainage or dumping of refuse, sewage or any other material into such reservoir and to carry out an adequate program of pollution control; and (b) the right to prevent the construction of, or the removal of, with due notice, any structure or facility located or to be located on said land. Structures and facilities are defined as waterwelis, septic systems, cesspouls, barns, sheds, places of habitation, and boat docks, but shall not include pens, gates, fences, Co CO cattleguards or boat ramps. All stcuctures.constructed and 0 UZ maintained by the grantor shall be at the grantor's risk with regard to flooding by the City's reservoir. Grantors retain the right to construct two boat ramps, which shall comply with applicable rerlutations imposed by the United States Army Corps of Engineers for the construction of such ramps at the Justiceburg Reservoir Project. This restrictive easement lying and being situated in the County of , State of Texas, and being more parti- cularly described as follows: (Legal description by metes and bounds} The grantors retain unto themselves, their heirs and assigns all oil and gas, and other hydrocarbon mineral rights and other substances extracted with or as a by-product of the extraction of such hydrocarbon minerals and all development rights from such minerals attached to the land acquired by the City, whether in Vol '179rt :2M fee or by easement. Included in such retained rights will be the right to drill hydrocarbon oil and gas wells through the reser- voir and to locate such wells on barges or man-made islands in the reservoir itself. All such structures shall be constructed and maintained at the grantor's and 'any operator's risk with regard to flooding by the City's reservoir. With respect to all minerals presently owned by grantors and not currently under lease, grantors and the City have by prior separate Memorandum of Agreement hereinafter described, expressly agreed that all current and future hydrocarbon oil and gas well drilling, storage and transportation activities, during both construction and operation and all facilities incidental thereto, shall be operated and maintained in such manner as will protect from any contamination the purity of the water impounded in the reservoir at all times pursuant to the applicable Regulations of 00 the Railroad Commission of Texas; and that the location of any co O drilling sites on land owned in fee by the City shall be subject U! W to approval by the City, which approval shall not be unreasonable O withheld. Notwithstanding anything to the contrary contained herein or in the Memorandum of Agreement, the conveyances described herein, whether fee or easement, are further made and accepted subject to any and all easements, leases, rights -of -way, restrictions, outstanding mineral interests and royalty interests, if any, relating to or affecting the hereinabove described real property or any portion thereof as existed on the date of Execution of the Memorandum of Agreement. In and for the same consideration above provided the grantors further acknowledge that under the prior separate Memorandum of Agreement hereinafter described, that they shall, upon reasonable notice, subsequently grant temporary access of the shore of the lake, which is the pruperty abutting that described in TRACT(S) A, above, for reasonable purposes necessary during construction and subsequent operation of the proposed dam and reservoir. I VOL 208 The grantors and the City or its employees, agents and contractors, in the performance of their official duties with the City, shall have the exclusive right to use land below the normal operating level of the lake, being land only within TRACT(S) A as above described, at times when the fake is below normal operating level, except areas between the water line and that property described as TRACT(S) B, C and D, above. At such times, grantors may use such land for livestock grazing and for their personal recreational uses. Grantors shall have no right however to build, place or erect any structure or facility within such areas. This warranty deed, and the grants and consideration provisions hereof, is given in culmination of a relationship between grantors and grantee arising under a Memorandum of Agreement, which said agreement, to which both grantors and grantees were parties, was attached to and incorporated as a part of a contract of sale between the parties filed of record in Vol. Page ,Deed Records of County, Texas, to _ GO which instrument reference is here made for all purposes as may C�J become necessary in any interpretation of the contents of this U1 C.V deed. In the event of any inconsistency between this deed and such Memorandum of Agreement, either by inclusion of matter or omission, the provisions of the Memorandum of Agreement shall control in the interpretation of this deed, unless otherwise expressly provided. Under the conditions and limitations contained in Section VII of the Memorandum Agreement above described, Grantors shall have a right of first refusal to repurchase TRACTS A, B, C and D from the City. The right of first refusal Merein granted shall be exercised by Grantors within 120 days from the dale the City nutifies all of the landowners namF:d in the Memorandum of Agreement of its intention to accept a bona fide offer fur the purchase of the property. In the event that the Grantors do not exercise such right of first refusal or declines to exercise said right, the other landowners who are parties to the Memorandum of VOL '179am Agreement shall have the right to purchase the land in question provided that they do so within the 120 day period above set forth. City agrees to indemnify and hold Grantors harmless from any and all claims or liabilities or damages based on the negligence of the City or any of its employees, agents and contractors related in any manner to the City's surveying, feasibility investigations and construction and operation of the Justiceburq Dam and Reservoir. Notwithstanding anything to Lhe contrary contained herein or in the Memorandum of Agreement, the easements herein granted to the City shall cease and terminate in the event the City elects not to proceed with the construction of the Justiceburg Reservoir project and cancels its §11.121 Permit No. 4146 under the condil.ions therefor provided in Section VIl of the Memorandum of Agreement. CX) TO HAVE AND TO HOLD the above described premises, rights, CJ O titles, easements, interests and all appurtenances thereto in CGz anywise belonging, unto the said grantee CITY OF LUBBOCK, TEXAS, O its successors and assigns forever; and we do hereby bind ourselves, our heirs, executors and administrators to WARRANT AND FOREVER DEFEND all and singular the said premises unto the said grantee, CITY OF LUBBOCK, TEXAS, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, subject, however, to the reservations and other matters set forth herein. Current ad valorem taxes on the herein described real property having been prorated, and the Grantor's prorated amount withheld from the consideration paid, the payment thereof is assumed by the City of Lubbock, Texas. The said City of Lubbock further assumes payment of one-half (02) of any taxes assessed after date hereof against said real property herein conveyed, ur any portion thereof, for periods of time prior to the date hereof due to changes in land usage or ownership under Property Tax Code vaL '179 pG : 210 a I Secs. 23.41 - 23.46 and/or Secs. 23.51 - 23.57, and then only if under the applicable Property Tax Code provision such "rollback" assessment can be enforced under the circumstances of this sale. EXECUTED this _ day of 14_ (acknowledgments as appropriate) GRANTORS GO C7 W W VOL 179e, : 211 FORM III - SPECIFIC USE EASEMENTS COMMENTS Numerous easements of different types are provided for under the Memorandum of Agreement. Those affecting the 2220 to 2245 (and 300 horizontal feet conditions) should best be handled in the warranty deed, for their condition is part of that due for the fee conveyance areas. The all weather service road easement is to be provided without cost to the City. The consideration there is the City's obligation to construct and maintain the road and for the original (only) cost of a fence on both sides of the road. This is properly subject to inclusion in a separate easement different from all other easements in nature. All other temporary and permanent easements are based on $20 per rod (60' wide). It is appropriate for all these easements that only an "all purpose" form be now included. The terms and conditions subsequently required will be satisfied by "word For word" inclusion of the language contained in the Memorandum of Agreement as directly or indirectly bears upon or affects the specific easement involved. To Lhio end an casement for the all weather service road and a general easement form for all other easements, is attached. It is anticipated that some easements may prove able to be combined. It will be the duty of the City to prepare, submit and file these easements of record. v UT CIO VOL i796 .: 22 (1)* EASEMENT THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF § THAT (name of specific landowner grantor) , all of the County of , State of Texas, as landowner and herein- after called "Grantors"), for and in consideration of the sum of TEN AND NO/100 ($10.00) DOLLARS, and the further consideration of all sums for the purpose of this grant now due as provided in Memorandum of Agreement dated the day of April, 1986, as attached to Contract of Sale between Grantors and Grantee, of record in Vol. , Page Deed Records of County, Texas, all to Grantors cash in hand paid as in said Memorandum of Agreement provided, by the City of Lubbock, a home rule musiiclpal corporation of Lubbock County, Texas, the receipt and sufficiency of all of which is hereby acknowledged and confessed, and the further good and valuable consideration in 00 CS0 benefits accruing and to accrue to the remainder of their 01 property, have by these presents GRANTED, BARGAINED, SOLD and W CONVEYED, and by these presents do GRANT, BARGAIN, SELL and CONVEY unto the said City of Lubbock, Texas, its legal repre- sentatives, successors and assigns, for the use of the said City of Lubbock, Texas, as a (2)* easement for the free and uninterrupted use, liberty of passage in, along, over, upon and across, all that property lying and being situated in the County of , State of Texas, and being de- scribed as follows, to -wit: (for example) A foot wide (1) easement out of (section, block, etc.), County, Texas, being more particularly described as follows: (Metes and bounds description) together with the rights of ingress, egress and regress at any and all times, to accomplish the following purposes: allowing but not limited to, construction, reconstruction, erection, repair, VOL '179 FV:. 213 inspection, patrolling and maintaining of (3)* Grantors shall not place any such structures or improvements within said easement area as will interfere with Grantee's full use thereof in accordance with the purpose of the grant. This easement includes the right to subsequently add or replace any facility, improvement or accessory necessary to the operation of the primary purpose of the easement, including its relocation at any time within the easement area, and shall further include the right at any time during the life of this easement, to remove all timbers, trees, brush, trash, filth, or any other obstructions in whole or in part within the easement area which might endanger or interfere with the Grantee's full enjoyment of the rights granted herein. Unless otherwise specifically provided this grant is Further made subject to and shall always be construed and interpreted as consistent with and as containing all provisions directly or OD indirectly governing its grant and the respective rights and O obligations of both Grantor and Grantee, relating thereto as 01 W contained in the Memorandum of Agreement dated April, 1986, and as above described, to which said Memorandum of Agreement reference is here made and its applicable provisions incorporated herein by reference for all purposes. (add at this point, if appropriate, any specific provisions from the Memorandum of Agreement that might have special significance for this specific easement. The inserted matter will be taken "word for word" from the Memorandum insofar as possible). City agrees to indemnify and hold Grantors harmless from any and all claims or liabilities or damages based on the negligence of the City or any of its employees, agents and contractors related in any manner to the City's surveying, feasibility investigations and construction and operation of the Justiceburg Dam and Reservoir. vot -2- Except as and to the extent inconsistent with the City's use of the easement area for the purposes herein contained, the City agree; to restore promptly any portion of the easement area or of the remainder of Grantor's property not conveyed or to be conveyed in fee to City under the Memorandum of Agreement, disturbed by the City in connection with its use of the easement herein granted or the construction of improvements or facilities related to such easement. Notwithstanding anything to the contrary contained herein, or the Memorandum of Agreement, this conveyance is made and accepted subject to any and all easements, leases, rights -of -way, restrictions, outstanding mineral interests and royalty in- terests, if any, relating to or affecting the property described herein existing on the date of execution of the Memorandum of AgreemenL. Notwithstanding anything to the contrary contained herein or 00 in the Memorandum of Agreement, the easement herein granted shall Co CD cease and terminate in the event the City elects not to proceed UI W with the construction of the Justiceburg Reservoir Project and cancels its §11.121 Permit No. 4146 under the conditions therefor provided in Section VII of the Memorandum of Agreement. TO HAVE AND TO HOLD the above described premises together with all and singular the rights and appurtenances thereto in anywise belonging perpetually (or for an appropriate lesser period in the case of temporary/working easements) unto the City of tiihbock, Texas, its successors and assigns, to the uses and under the conditions hereinabove stated forever (or for the life of this grant as above provided) WITNESS OUR HANDS, this the day of , 19 GRANTORS (acknowledgement as appropriate) M * Will define easement, such as: a. Water pipe lines; or b. Electric Transmission lines; C. Communication lines; d. Etc. (2)* Will define life of easement, such as: a. Permanent and perpetual; or b. Temporary/working C. Etc. (3)* Will describe the primary facility, and major components and further provide for such additional facilities or acces- sories, etc., as may now be or subsequently become necessary or appropriate to the safe or efficient operation thereof, etc. This 00 is as specific as can now be provided until final design plans C;J CD are prepared. The primary facility, for example, could be such CR W as: a. Overhead electrical transmission or distribution lines; or b. Underground water transmission pipes or conduits; C. etc. By way of one example only: "...uverhead electrical transmission and/or distri- bution lines and wires, including all poles, wires, con- duits, transformers, guys, guy wires and braces, and such other facilities, improvements or accessories as now or subsequently necessary or appropriate to the safe and efficient operation of said overhead electrical transmission and/or distribution lines..." (4) Also, as applicable to the water pipeline easement only: In the event that City, in its discretion, determines to construct the Justiceburg Reservoir as contemplated by the Memorandum of Agreement and does construct such facil- ity, then and only then the City will grant to Grantors (pertains to Landowners Reed, Ward, and Huddleston only) one tap each to allow use of the raw water in the pipeline(s) For domestic and normal ranching livestock consumption on Grantors' property. No warranty will be given as to the quality or the availability of water from the pipeline(s). Grantors will provide a recording meter at each tap to measure the volume of water taken which shall be limited to twenty (20) acre feet per year per tap. The City shall have rennonnble access to each tap and meter for the purpose of calibrating the same from time to time. vot 17g�, 217, FORM IV - ALL-WEATHER ROAD EASEMENT COMMENTS Mutual obligations have been accepted between the parties affected as to an all-weather road. Section III at pg. 49 of Memorandum of Agreement. This will be a private road for the use of the City and the abutting landowners only. The 60' wide easement for the roadway will be granted without additional cost to the City (beyond consideration paid for the land otherwise purchased). It will be constructed and maintained by the City. The easement will be fenced on each side. The original cost of installation of the fences will be on the City's, but all costs of maintenance of the fences thereafter will be on the abutting landowner. Only some of the parties to the Memorandum of Agreement will be involved in the road easement. Where possible the road will follow property lines and in such applicable circumstances one-half of the roadway easement will be conveyed by each of the landowners abutting such property line. It will be the duty of the City to prepare, submit and file this easement document of record. GO C0 O 01 G: t7 VOL Z�9nli::21$ PRIVATE ROADWAY EASEMENT THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF § THAT (name of specific landowner/grantor , all of the County of , State of Texas, as landowner and hereinafter called "Grantors"), for and in consideration of the sum of TEN AND NO/100 DOLLARS, and the further consideration of all sums for the purpose of the grant now due as provided in Memorandum of Agreement dated the day of April, 1986, as attached to Contract of Sale between Grantors and Grantee, of record in Vol. , Page Deed Records of County, Texas, all to Grantors cash in hand paid as in said Memorandum of Agreement provided, by the City of Lubbock, a home rule municipal corporation of Lubbock County, Texas, the receipt and sufficiency of all of which is hereby acknowledged and confessed, and the further good and valuable consideration in benefits accruing and to accrue to the remainder of their 00 CU property, have by these presents GRANTED, BARGAINED, SOLD and C.31 CONVEYED, and by these presents do GRANT, BARGAIN, SELL and W C:7 CONVEY unto the said City of Lubbock, Texas, its legal repre- sentatives, successors and assigns, for the use of the said City of Lubbock, Texas, and other landowners who are parties to the Memorandum of Agreement and whose property abuts the roadway, as a private roadway easement and including the free and uninter- rupted use, liberty of passage in, along, over, upon and across, in common with Grantors, all that property lying and being situated in the County of , State of Texas, and being described as follows, to -wit: (for example) A (30' or 60') foot wide private roadway easement out of (section, block, etc.), County, Texas, being situated as set Forth on Exhibit "A" attached to the Memorandum of Agreement and being more particularly de- scribed as follows: (Metes and bounds description) together with the rights of ingress, egress and regress at any and all times, to accomplish the following purposes: allowing but not limited to, construction, reconstruction, erection, VOL 179,1. i M r re^sir, inspection, patrolling and maintaining such roadway easement. Grantors shall not place any such structures or improvements within said easement area as will interfere with Grantee's full use thereof in accordance with the purpose of the grant. ' This easement includes the right to subsequently add or replace any facility, improvement or accessory necessary to the operation of the primary purpose of the easement, including its relocation at any time within the easement area, and shall further include the right at any time during the life of this easement, to remove all timber, trees, brush, trash, filth, or any other obstructions in whole or in part within the easement area which might endanger or interfere with the Grantee's full enjoyment of the rights granted herein. Unless otherwise specifically provided this grant is further made subject to and shall always be construed and interpreted as consistent with and as containing all provisions directly or GO indirectly governing its grant and the respective rights and O O CTi obligations of both Grantor and Grantee relating thereof, as CJ C7 contained in the Memorandum of Agreement dated April , 1986, and as above described, to which said Memorandum of Agreement reference is here made and its applicable provisions incorporated herein by reference for all purposes. The Grantee at its sole cost shall construct and maintain within such roadway easement when necessary to it, an all-weather service road of such width as to the City in its discretion deemed to be of sufricient width to safely accommodate all traffic anticipated to be generated by City's activities during planning, construction, operation, reconstruction and maintenance of the Justiceburg dam, reservoir and related facilities. The all-weather service road shall be constructed and maintained at the City's sole expense. The roadway easement area shall be fenced along each outside property line. The cost of the original fencing shall be paid by the City, thereafter all costs of maintenance of said fences shall be solely upon the landowner whose property abuts the 1& 19, pt.:'. 220 fenced area. The fence shall be placed at or immediately abut- ting the outer metes and bounds of the total easement area. The road shall not be accessible to the public nor dedicated as a public roadway. It may be used only by all the abutting landowners and the City, its employees, servants, agents and contractors in its activities relating to the planning, con- struction, operation and maintenance of the Justiceburg dam and reservoir. TO HAVE AND TO HOLD the above described premises together with all and singular the rights and appurtenances thereto in anywise belonging perpetually unto the City of Lubbock, Texas, its successors and assigns, to the uses and under the conditions hereinabove stated forever. City agrees to indemnify and hold Grantors harmless from any and all claims or liabilities or damages based on the negligence of the City or any of its employees, agents and contractors Go related in any manner to the City's surveying, feasibility inves- CO O tigations and construction and operation of the Justiceburg Dam UT C.v and Reservoir. L7 Except as and to the extent inconsistent with the City's use of the easement area for the purposes herein contained, the City agrees to restore promptly any portion of the easement area or of the remainder of Grantor's property not conveyed or to be con- veyed in fee to City under the Memorandum of Agreement disturbed by the City in connection with its use of the easement herein granted or the construction of improvements or facilities related to aur.h ennnment. Notwithstanding anything to the contrary contained herein, or in the Memorandum of Agreement, this conveyance is made and accepted subject to any and all easements, leases, rights -of -way, restrictions, outstanding mineral interests and royalty inter- ests, if any, relating to or affecting the property described herein, existing on the date of execution of the Memorandum of Agreement. Notwithstanding anything to the,contrary contained herein or in the Memorandum of Agreement, the easement herein granted shall _ 3 _ VOL cease and terminate in the event the City elects not to proceed with the construction of the Justiceburg Reservoir project and cancels its §11.121 Permit No. 4146 under the conditions therefor provided in Section VII of the Memorandum of Agreement. WITNESS OUR HANDS, this the day of , 19— GRANTORS (acknowledgement as appropriate) GO CD O CTt C� r'tLiW FUH�I�iyN�fL()"I q,'05 a-k -a. & �eai �MM Now tow 22 VOL '179PR;! 2 THE STATE OF TEXAS 1, SONNY GOSSETT. Clerk County Court in and for said County, do hereby certify County of Garza that the foregoing instrument dated theLday of y1,Pd , 19f�;; , with its ceryificatesCoof authentication, was filed for Record In my offfice, on the .3� day of LUIL//j1�� A. D., 19 D/� at lo'clock CZ • M., and duly re�cprded theday of _jLaf6� A. D., 1g V ! at I- G�i' / -o'clock M., In the d, Records of said County in Vol. M4 , Page %9(l . Witness my hand and the seal of the County Court of said County, at office in Post, Texas, the day and year last above written. SONNY GOSSETT Clerk ounty Court, Garza County By Deputy Exhibit "F" DISTRICT REDUCTION SCHEDULE LAKE WATER PERCENT ELEVATION REDUCTION (1) iN BASE, ANNUAL UAI T. rrY 2185 10% 2180 20% 2175 30% 2170 40% 2165 50% (1) Feet above mean sea level as measured at the intake tower USGS gauge on January 1" of each year. RAW WATER LEASE FROM LAKE ALAN HENRY PAGE 14 Resolution No. 2006-RO208 May 11, 2006 Item No. 5.11 Exhibit "G" To Raw Water Lease between the City of Lubbock and Lake Alan Henry Water District STATE OF TEXAS § COUNTIES OF GARZA AND KENT § WATER PIPELINE EASEMENT KNOW ALL MEN BY THESE PRESENTS, the City of Lubbock, a Texas home rule municipal corporation (the "City"), for and in consideration of the amount of to be agreed upon by the City and Districtl, does hereby grant, without warranty, expressed, statutory or implied, including without limitation, any warranties under Section 5.023 of the Texas Property Code, unto the Lake Alan Henry Water District (hereinafter called the "District"), and to its successors or assigns, the right to enter upon the lands of the undersigned, for the limited purposes set forth below, situated in Garza and Kent Counties, State of Texas, being that certain land, thirty feet (30`) in width, and being more particularly described on Exhibit "A",attached hereto, to construct, operate and maintain under the above described lands, a water pipeline or pipelines. Any pipeline shall be buried at least forty-two (42") inches below the ground surface. This instrument grants an easement only under and across the above -described lands. DISTRICT SHALL INDEMNIFY AND HOLD CITY AND CITY'S ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES AND INDEPENDENT CONTRACTORS HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW, FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, DAMAGES, COSTS, LIABILITIES AND EXPENSES, INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES, AS A RESULT OF, ARISING FROM, OR RELATED TO DISTRICT'S USE OR OCCUPATION OF CITY OWNED LANDS OR THE EASEMENT AND/OR ANY MATTER RELATED TO DISTRICT'S OPERATIONS OR OMISSIONS UNDER THIS EASEMENT, INCLUDING ANY AND ALL CLAIMS, DEMANDS, DAMAGES, COSTS, AND EXPENSES CAUSED IN WHOLE OR 1N PART, BY THE SOLE OR CONCURRENT NEGLIGENCE, OF ANY KIND, TYPE OR DEGREE, OF CITY, CITY'S ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES OR INDEPENDENT CONTRACTORS. District, and any other parties performing all or a part of the construction activities (collectively referred to in the provisions of this Easement relating to required insurance as the "District") shall procure and cant', at its sole cost and expense through the time of final completion of any and all construction activities contemplated by this Easement, insurance protection as hereinafter specified, in form and substance satisfactory to City, carried with an insurance company authorized to transact business in the State of RAW WATER LEASE FROM LAKE ALAN HENRY PAGE IS Texas, covering all aspects and risks of loss of all operations in connection with this Easement, including without limitation, the indemnity obligations set forth herein. District shall obtain and maintain in full force and effect commercial general liability and automobile liability coverage with insurance carriers admitted to do business in the State of Texas. The insurance companies must carry a Best's Rating of A-VII or better. The policies will be written on an occurrence basis, subject to the following minimum limits of liability: Commercial General Liability: Combined Single Limit: $500,000 Per Occurrence Automobile Liability: Combined Single Limit for any auto: $500,000 Per Occurrence The City shall be listed as additional insured and shall be granted a waiver of subrogation under the policies. District will provide a Certificate of Insurance to the City as evidence of coverage. The Certificate will provide 30 days notice of cancellation. A copy of the additional insured endorsement and waiver of subrogation attached to the policy will be included in the certificate. District shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, District shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that District maintains said coverage. The City shall be granted a waiver of subrogation under this policy. If District fails to maintain the required insurance in full force and effect, the rights and interests granted herein shall automatically terminate. The City shall have the right to occupy and observe any and all activities undertaken by District pursuant to the rights granted by this Easement. Prior to entering upon the easement granted herein, District shall provide to City not less than twenty- four (24) hours notice so that the City may exercise its rights hereunder. In the event an emergency shall exist that requires the District to enter upon the easement granted herein without compliance with the twenty-four (24) hour notice requirement, the District shall notify City as soon as reasonably practicable, but in no event to be later than District entering upon the easement granted herein. For the purposes of notice hereunder, such notice shall be provided to the Director of Water Utilities at (806) 775- 2989 and the Chief of Police at (806) 775-2750. Notwithstanding anything to the contrary herein, the City may enter upon the easement granted herein at any time for any purposes it deems appropriate, including without limitation, installing, maintaining, testing, observing, reading and/or any other purpose or activity related to the meter or meters to be installed on the pipeline(s). RAW WATER LEASE FROM LAKE ALAN HENRY PAGE 16 The City shall have the right to approve the design and specifications of the pipeline(s) up to and including the point on such pipeline(s) where the meter or meters are to be installed by the City. Prior to beginning any construction activities on the pipeline or pipelines, the District shall provide to the City all plans and specifications regarding the design thereof, for its approval. The District shall not initiate the construction of such facilities unless and until the City shall have approved such plans and specifications, as provided herein. The District represents and warrants to the City that it has obtained all necessary licenses and permits regarding the construction of the pipeline(s) to be constructed pursuant to the terms hereof. Further, the District represents and warrants to City that it shall comply with all applicable laws, statutes, rules, regulations and ordinances regarding the construction, maintenance and operation of the pipeline(s), including without limitation, the Clean Water Act (33 U.S.C. 1251 et seq.) and all rules and regulations promulgated thereunder or related thereto. IN WITNESS WHEREOF, the undersigned set their hands and seals this the day of 2006. CITY OF LUBBOCK MARC McDOUGAL, MAYOR ATTEST: Rebecca Garza, City Secretary LAKE ALAN HENRY WATER DISTRICT M Name: Title: ATTEST: Name, Title RAW WATER LEASE FROM LAKE ALAN HENRY PAGE 17 Resolution No. 2006-R0208 May 11, 2006 Item No. 5.11 Exhibit "A" To Water Pipeline Easement EASEMENT DESCRIPTION TO BE LOCATED AS MUTUALLY AGREED BY CITY AND DISTRICT RAW WATER LEASE FROM LAKE ALAN HENRY PAGE 18