HomeMy WebLinkAboutResolution - 2009-R0187 - Interlocal Agreement - Brazos River Authority - 05_14_2009Resolution No. 2009-RO187
May 14, 2009
Item No. 5.26
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
i 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 an Interlocal Agreement by
and between the City of Lubbock and the Brazos River Authority of Texas, and all related
documents. Said Agreement is attached hereto and incorporated in this Resolution as if
fully set forth herein and shall be included in the minutes of the Council.
Executed by the City Council this 14th day of May 2009.
TOM MARTIN, MAYOR
TTEST:
ca Garza, City
ROVED A,5-T-4 CONTENT:
om Adams, Deputy City Manager
ater tAility Director
OVED AS TO FORM:
jMitthbG/b1WCr,vhW, Assistant City Attorney
Interlocal Agreement -Res -Brazos River Authority of TX
4/30/09
Contract: 9004
Resolution No. 2009-RO187
INTERLOCAL AGREEMENT
Between
The Brazos River Authority of Texas
and
The City of Lubbock, Texas
TABLE OF CONTENTS
RECITALS....................................... . ........ ....... ............................................... I
AGREEMENT.................................................................................................5
I. DEFINITIONS...............................................................................5
II. AGREEMENT REGARDING COOPERATION.......................................8
III. MISCELLANEOUS PROVISIONS.....................................................14
EXHIBIT A - ACCOUNTING PRINCIPLES
Resolution No. 2009-RO187
INTERLOCAL AGREEMENT
This Interlocal. Agreement ("Agreement") is made and entered into as of the date last
executed below ("Effective Date") by and between the BRAZOS RIVER AUTHORITY of
Texas ("BRA"), a conservation and reclamation district created by the Texas Legislature
pursuant to the provisions of Art. XVI, Section 59 of the Texas Constitution, acting by and
through its Board of Directors and pursuant to a resolution duly passed and adopted by said
Board of Directors; and the CITY OF LUBBOCK, TEXAS (the "City" or "Lubbock"), a
municipality of the State of Texas, organized and operating pursuant to its home rule charter, and
the Constitution and laws of the State of Texas, acting by and through its City Council and
pursuant to formal approval by said City Council.
RECITALS
WHEREAS, BRA owns certain water rights and permits on the mainstem of the Brazos
River, more specifically Certificate of Adjudication ("CA") No. 12-5155 (Possum Kingdom
Lake), CA No. 12-5156 (Lake Granbury), CA No. 12-5157 (Lake Whitney), and CA No. 2925A
(proposed Allens Creek Reservoir), collectively, for the purposes of this Agreement, the " BRA
Existing Water Rights"; and
WHEREAS, the City currently relies on surface water and groundwater for its water
supply, and the City owns certain water rights and permits in the upper Brazos River Basin,
including: (i) CA No. 12-3705 and CA No. 12-3705A, authorizing the maintenance of the Jim
Bertram Lake System for recreational and industrial purposes, and which currently consists of
1
six reservoirs on the North Fork of the Double Mountain Fork of the Brazos River (the "North
Fork"); ii) CA 12-3705B, authorizing the diversion of discharges made pursuant to the City's
TPDES Permit No. 04599, a Bed and Banks authorization to transport such discharges to
authorized points of diversion, and the diversion and use thereof for agricultural, municipal,
industrial, and recreational purposes; iii) Water Use Permit No. 3985 (issued to the City by the
Texas Commission on Environmental Quality ("TCEQ") pursuant to Application No. 4340),
authorizing the reuse of wastewater effluent derived from water supplies purchased from the
Canadian River Municipal Water Authority ("CRMWA"); and, iv) Water Use Permit No. 4146
(issued to the City by the TCEQ pursuant to Application No. 4155), authorizing the
impoundment, diversion and use of water in and from Lake Alan Henry on the South Fork of the
Double Mountain Fork of the Brazos River (the "South Fork"), collectively, for the purposes of
this Agreement, the " City's Existing Water Rights"; and
WHEREAS, the City has filed several applications with the TCEQ, including i)
Application No. 4340A, declared administratively complete on October 12, 2004, thereby
establishing the priority date that will be applicable to the water right if it is approved by TCEQ,
and seeking to amend Permit No. 3985 to authorize a Bed and Banks authorization to transport
all historical and future discharges of Canadian River Basin surface water based effluent and
groundwater based effluent and the diversion and use thereof for agricultural, municipal,
industrial, and recreational purposes; and, ii) Application No. 5921, declared administratively
complete on April 17, 2006, thereby establishing the priority date that will be applicable to the
water right if it is approved by TCEQ, and seeking to construct Jim Bertram Lake No. 7 and to
impound, divert, use, and reuse Developed Water discharged into the North Fork, unappropriated
2
State Water, Developed Stormwater, and Reclaimed Water and Return Flows resulting from the
use of such water sources, and authorization to transport such water through the bed and banks of
state streams; and
WHEREAS, BRA has filed Application No. 5851 with the TCEQ, seeking a System
Operation Permit (the "System Operation Permit") to appropriate water made available by
operating BRA's reservoirs as a system and from other sources, including unappropriated flows
in the Brazos River Basin and return flows of dischargers in the Brazos River Basin; and
WHEREAS, the System Operation Permit application was declared administratively
complete on October 15, 2004, thereby establishing the priority date that will be applicable to the
water right if it is approved by TCEQ; and
WHEREAS, the City has protested BRA's Application No. 5851, and BRA has protested
the City's Application No. 5921; and
WHEREAS, much of the Developed Stormwater sought by the City in Application No.
5921 is Developed Playa Lake Water that is not now and never has been a source of inflows into
the Brazos River (except during storm events exceeding the 100 year flood), but instead was
trapped in playa lakes and lost to either evaporation or infiltration to the ground; and
WHEREAS, the BRA does not object to the City's claim to Developed Playa Lake
Water; and
3
WHEREAS, the City may participate in the development of additional future water
supply projects and strategies, including the Post Reservoir Project Amendment, and additional
Bed and Banks projects on the North Fork and the South Fork; and
WHEREAS, the City and BRA (jointly referred to as the "Parties") agree that it is in their
respective interests and in the public interest to resolve potential conflicts between their
respective pending and future water supply projects; and
WHEREAS, the Parties desire to enter into this Agreement so they can each pursue, in a
coordinated manner, their pending and future water supply projects in the Brazos River Basin;
and
WHEREAS, pursuant to Chapter 791, Texas Government Code, and the general and
special laws of the State of Texas, the Parties are authorized to enter into this Agreement
providing for the undertaking, administration, and implementation of the Agreement.
NOW, THEREFORE, be it resolved that for and in consideration of the mutual
covenants, benefits, and agreements hereinafter set forth, the adequacy and sufficiency of which
is evidenced by the Parties' respective execution of this Agreement, the Parties agree as follows:
4
AGREEMENT
I.
DEFINITIONS
For purposes of this Agreement, the Parties agree to the following definitions:
A. "Accounting Principles" means the principles attached hereto as Exhibit A which reflect
the agreement of the Parties regarding the manner in which the City will account for its
storage, diversion, use and passage of State Water, Developed Playa Lake Water,
Reclaimed Water and Return Flows pursuant to Application No. 5921, if granted, and the
Post Reservoir Project Amendment, if granted.
B. "Bed and Banks" means the use of the bed and banks of a state watercourse to transport
water for subsequent storage, diversion and/or use.
C. "BRA WAM" means a version of the TCEQ Run 3 Brazos Water Availability Model,
modified to include the BRA's System Operations, as submitted by the BRA to TCEQ in
support of its System Operation Permit application (Application No. 5851). Subsequent
modifications to the model that are approved by the Parties are to be used for determining
the impacts to each other, if any, of their respective pending and future water rights
applications. Impacts of future applications covered by this Agreement may be based on
mutually agreeable modified versions of the BRA WAM, modifications of the BRA
WAM made by TCEQ, or other similar modeling tools.
D. "Developed Water" means water that would not be in the Brazos River or its tributaries
but for the efforts of the City or purveyors of water to the City, such as CRMWA, and
includes, without limitation, groundwater (other than natural discharges through seeps or
F1
springs), surface water transported via an interbasin transfer, and wastewater effluent
resulting from the use of such Developed Water.
E. "Developed Playa Lake Water" means water that originates as diffused surface water
collected in playa lakes that otherwise would not have reached a watercourse (except
during storm events in excess of the 100 year flood), none of which, the Parties
acknowledge, has been released or discharged historically (prior to the 2003 completion
of the City's South Central Drainage Project), and discharged by way of the physical
interconnection of such playa lakes through the City's storm drainage system to the North
Fork or South Fork. For purposes of this Agreement, Developed Playa Lake Water
includes only water discharged from playa lakes by City drainage projects completed
during or after 2003.
F. "Developed Stormwater" means water that the City seeks recognition of an ownership
interest in pursuant to Application No. 5921, as originally filed, that is discharged into the
North Fork or its tributaries by the City's storm drainage system.
G. "Lubbock Service Area" means the area within the corporate boundaries of the City of
Lubbock and all areas within its Extra Territorial Jurisdiction (ETJ), as those corporate
limits and ETJ may be modified from time to time, as well as within the service area of
any Certificate of Convenience and Necessity that the City owns, now or in the future.
H. "North Fork" means the North Fork of the Double Mountain Fork of the Brazos River
and its tributaries.
1. "Post Reservoir Project Amendment" means the City's proposed amendment to CA No. 12-
3711 so as to: authorize the use of water appropriated therein for multiple purposes of
use; amend Special Condition No. 6.A of CA No. 12-3711, to specify the conditions
Cel
under which the passage of inflows to the Post Reservoir, as currently required in such
special condition, would be made; amend Special Condition Special Condition No. 6.B
to specify the conditions under which State Water stored in the sediment pool of Post
Reservoir will be required to be released; and, to authorize the storage in and the
diversion of Developed Playa Lake Water, Reclaimed Water, and/or Return Flows from
the Post Reservoir.
J. "Reclaimed Water" means wastewater effluent that originated as Developed Water or
Developed Playa Lake Water and which has been collected and treated for reuse by the
City or by any wholesale water customer with which the City has contractually retained
ownership of such effluent or has secured a contractual right of reuse, or by any regional
wastewater treatment facility in which the City is a participant, as a water supply and/or
for discharge into the North Fork or South Fork.
K. "Return Flows" means wastewater effluent that is not Reclaimed Water and which has
been collected and treated for reuse by the City or by any wholesale water customer with
which the City has contractually retained ownership or has secured a contractual right of
reuse, or by any regional wastewater treatment facility in which the City is a participant,
as a water supply and/or for discharge into the North Fork or South Fork, and which is
proposed for reuse by the City within the Lubbock Service Area.
L. "South Fork" means the South Fork of the Double Mountain Fork of the Brazos River
and its tributaries.
M. "State Water" means, for the purposes of this Agreement, water that naturally flows to
the North Fork or South Fork or which has historically flowed to the North Fork or the
South Fork including natural discharges from seeps and springs or other sources, but not
7
including any discharges of Return Flows, Reclaimed Water, or Developed Playa Lake
Water.
N. "Support" means to not oppose or to not protest, formally or informally, any federal or
state permit application or permit amendment application, and this includes verbal,
written and financial efforts to oppose or protest such applications, and it also includes
not funding or supporting the protest of such applications by a third party.
O. "System Water Availability Agreement" means BRA's long-term water supply
agreement, as it may be, from time to time, amended or modified, or replaced by the
BRA Board of Directors.
P. "TCEQ" means the Texas Commission on Environmental Quality or a successor agency.
II.
AGREEMENT REGARDING COOPERATION
A. Subject to the provisions of this Agreement, within thirty (30) days of the Effective Date
of this Agreement, the City agrees to provide documentation to BRA of its amendment of
Application No. 5921, as follows: i) the Developed Stormwater portion of the application
shall be limited to Developed Playa Lake Water; and ii) the requested Bed and Banks
authorization, and recognition of any City ownership interest, shall be limited to
Developed Playa Lake Water and the City's discharges of Reclaimed Water derived from
Developed Water or Developed Playa Lake Water, and its discharges of Return Flows,
provided that such Return Flows are used within Lubbock's Service Area. Prior to the
City's submission of any such amended application following the Effective Date of this
Agreement, it shall afford BRA the opportunity to review, provide comments and to give
written notice to the City to such application so as to ensure that the terms and conditions
of this Article II. A. are met.
B. Subject to the provisions of this Agreement, BRA agrees to Support and to withdraw its
protest of and to the City's Application No. 5921; provided, however, BRA's protest
withdrawal may be contingent upon review of a final draft permit in response to
Application No. 5921 to determine that it is consistent with the terms and conditions of
this Agreement.
C. Subject to the provisions of this Agreement, the City agrees to Support and to withdraw
its protest of and to BRA's Application No. 5851 simultaneous with filing of BRA's
withdrawal of protest to Application No. 5921; provided, however, City's protest
withdrawal may be contingent upon review of a final draft permit in response to
Application No. 5851 to determine that it is consistent with the terms and conditions of
this Agreement.
D. Subject to the terms of this Agreement, the Parties agree that the TCEQ's approval of the
City's Application No. 5921, as limited to a requested storage and diversion authorization
based on Developed Playa Lake Water, unappropriated State Water, Return Flows and
Reclaimed Water, and the City's subsequent storage, diversion and use of such water
supplies, will not impair the BRA Existing Water Rights or its System Operation Permit,
if granted, provided the City complies with the Accounting Principles included herein as
Exhibit A. The Parties agree that the BRA's Existing Rights and any rights it may secure
pursuant to the System Operation Permit, if granted, do not appropriate or seek to
appropriate the City's Developed Playa Lake Water, Reclaimed Water, or Return Flows,
and that the BRA does not have the right to make and therefore will not make priority
0
calls on such flows if they are adequately distinguished in the accounting plan from State
Water, pursuant to the Accounting Principles. Alternatively, for purposes of fully
satisfying BRA's interests pursuant to the BRA Existing Water Rights and the System
Operation Permit, if granted, and by use of the BRA WAM, the Parties may agree to
enter into a System Water Availability Agreement pursuant to Article ILG in order to
address the impacts resulting from the City's appropriation of State Water that would
result if the City does not pass such water. The Parties agree that BRA's Application No.
5851, if granted, and as identified in the BRA WAM, will not impair the City's Existing
Water Rights.
E. Subject to the terms of this Agreement, BRA agrees to Support the following future
permits or permit amendment applications to be filed by the City: i) securing further Bed
and Banks authorizations for the City's transfer of Developed Playa Lake Water,
Reclaimed Water, and Return Flows through the South Fork and the North Fork for
subsequent storage, diversion, and/or use and reuse by the City; ii) securing a Bed and
Banks authorization for the transfer of Developed Playa Lake Water, Reclaimed Water,
and Return Flows to Lake Alan Henry, and the storage, diversion and/or use and reuse of
such waters in and from Lake Alan Henry; iii) applications authorizing the further
storage, diversion and/or use of all Developed Playa Lake Water by the City, as the City
deems appropriate, including any Bed and Banks authorization or other authorizations
needed to transport, divert, use, and reuse such waters; and, iv) applications for the Post
Reservoir Project Amendment; provided that such future permits or permit amendment
applications will not impair BRA's Existing Water Rights or its System Operation Permit,
if granted, with such impairment or non -impairment to be determined by use of the BRA
10
WAM. To the extent the City makes a future application for Developed Playa Lake
Water, Return Flows or Reclaimed Water, BRA agrees to subordinate any right it may
have previously secured for any portion of such flows to the City's right to appropriate
same. To the extent the City pursues the Post Reservoir Project Amendment application,
and such amendment is granted as defined herein, BRA agrees that its Existing Water
Rights and its System Operation Permit, if granted, will not be impaired by the approval
of such application if the City complies with the Accounting Principles in its passage of
State Water to which BRA may be entitled by its seniority, or if the City enters into a
System Water Availability Agreement pursuant to Article II.G in order to address the
impacts resulting from the City's appropriation of State Water that would result if the
City does not pass such water to which BRA may be entitled.
F. Notwithstanding any provision of this Agreement to the contrary, the City agrees that it
will not seek future permits, permit amendments, or regulatory authorizations for any
project(s) that will reduce the ability of the BRA to utilize its authorized diversions from
the BRA Existing Water Rights or the System Operation Permit, if granted, as such
reduction, if any, would be determined utilizing the BRA WAM, unless i) the City and
BRA, agree in writing on the amount of any such reduction and the City enters into a
System Water Availability Agreement in the amount of any such reduction, and in such
event ii) BRA and the City shall agree in writing that BRA will not make priority calls on
any water flowing to the City's project(s).
G. By analysis utilizing the BRA WAM, the Parties have determined that unrestricted
exercise of rights (i.e., operation of Jim Bertram Lake No. 7 or the Post Reservoir Project
without passing inflows for BRA's Existing Water Rights) sought by Lubbock pursuant
11
to Application No. 5921, the Post Reservoir Project Amendment, and to be sought for
Bed and Banks Projects on the North Fork and South Fork, all as described herein, will
result in reduction of the firm yield of Existing BRA Water Rights and the System
Operation Permit, if granted, by 400 acre-feet per year. Therefore, the Parties agree that
should Lubbock choose to utilize such rights, if granted, without passing inflows of State
Water downstream, pursuant to the terms of this Agreement, Lubbock will enter a System
Water Availability Agreement with BRA in an amount of not to exceed 400 acre-feet per
year, depending upon which projects are permitted, (a) within 12 years following the
Effective Date of this Agreement or (b) within 3 months following issuance of a final
permit or amendment issued to the City pursuant to Application No. 5921, the Post
Reservoir Project Amendment, or applications to be sought for Bed and Banks Projects
on the North Fork and South Fork, whichever occurs sooner. If TCEQ should impose
conditions upon any of these permits or amendments which restrict Lubbock's ability to
achieve an unrestricted exercise of the rights sought, BRA agrees to analyze the impact of
the permit(s) or amendment(s) utilizing the BRA WAM to determine the reduction in
yield of BRA's Existing Water Rights and the System Operation Permit, if granted, under
the permit(s) or amendment(s) as issued to Lubbock, and to modify the amount of water
purchased under the System Water Availability Agreement to a lesser amount that may
indicated by the BRA WAM analysis. If Lubbock has not obtained any of the permit(s)
or amendment(s) identified above within 12 years following the Effective Date, it may
elect to renounce any and all rights with respect to such applications under this
Agreement and enter a System Water Availability Agreement for the amount of water
indicated by the BRA WAM to be the reduction in firm yield of BRA's Existing Water
12
Rights and the System Operation Permit, if granted, that would occur without
consideration of the applications renounced by Lubbock.
H. BRA agrees that the City's passage of all inflows of State Water to Lake No. 7 or the Post
Reservoir Project, when inflows of State Water are greater than 5 cfs during any period
when Possum Kingdom Reservoir is below elevation 1,000 feet above mean sea level
shall fully satisfy BRA's Existing Water Rights and its rights under the System Operation
Permit, if granted, and the City agrees to pass such inflows. The City shall not be
required to pass such inflows of State Water when such inflows are 5 cfs or less nor when
Possum Kingdom Reservoir is at or above elevation 1,000 feet above mean sea level.
I. For purposes of fully implementing this Agreement, the Parties hereby incorporate the
Accounting Principles into the Agreement as if such principles were fully stated herein.
J. To the extent (i) the City is required to release or pass through non -State Water by
instream flow requirements in any permit or amendment that may be issued by TCEQ in
response to Application No. 5921 or the Post Reservoir Project Amendment, and (ii) to
the extent that such release or pass through benefits BRA, assuming the enforcement of
BRA's priority rights, BRA agrees that the City may accumulate and receive a one-to-one
credit against its obligations otherwise due under the Accounting Principles and this
Agreement to pass State Water. BRA will cooperate with the City in developing an
agreed upon method for accounting for such credits within 90 days following the date
that the permit issued in response to Application No. 5921 becomes final and non -
appealable.
K. The Parties agree that their existing contracts related to Lake Alan Henry shall continue
in effect.
13
L. The Parties agree to provide each other with copies of permit applications, documents,
amendments, modifications, and proposed permit language, as well as engineering
studies, models or simulations, or any other such materials as may be deemed appropriate
by either Party, related to any application(s) referenced in this Agreement, so as to allow
the Parties reasonable opportunity to review and comment on such applications and
proposed permits. Application materials will be afforded by either Parry within thirty
(30) days of the filing of any such application; proposed permit language will be afforded
by either Party within five (5) days of the generation of or receipt by a Parry of such
language.
M. Notwithstanding any provision of this Agreement, BRA is under no obligation to Support
any pending or future permit application, described herein, filed by the City that is not
deemed administratively complete and public notice issued within 10 years following the
Effective Date of this Agreement, and unless such applications are granted, in whole or in
part, within 13 years of the Effective Date of this Agreement.
III.
MISCELLANEOUS PROVISIONS
A. ENTIRE AGREEMENT: The terms and provisions of this Agreement contain the entire
Agreement between BRA and the City with respect to the matters addressed above.
B. SEVERA$u.ITY: The provisions of this Agreement are severable, and if for any reason any
one or more of the provisions contained in this Agreement shall be deemed to be invalid,
illegal, or unenforceable in any respect, the invalidity, illegality, or unenforceability shall
not affect any other provisions of this Agreement and this Agreement shall remain in
effect and be construed as if the invalid, illegal, or unenforceable provision had never
14
been contained in the Agreement. Notwithstanding the foregoing, if any provision of this
Agreement shall be deemed to be invalid, illegal, or unenforceable, and such provision
served as consideration for a Party's agreement to a term, condition, or provision of this
Agreement that shall remain in effect, the Parties agree to work together in good faith to
provide an alternate means for providing consideration, such that their respective interests
are protected and made whole.
C. ADDRESSES AND NOTICE: Unless otherwise provided in this Agreement, any notice,
communication, request, reply, or advice (herein severally and collectively called
"Notice") herein provided or permitted to be given, made, or accepted by any Party to the
other must be in writing and may be given or be served by depositing the same in the
United States mail postpaid and registered or certified and addressed to the party to be
notified, with return receipt requested, or by delivering the same to an officer of such
party, or by facsimile or other documentary form. Notice by facsimile or hand delivery
shall be deemed to have been received by the close of the business day on which it was
transmitted or hand -delivered (unless transmitted or hand -delivered after close of
business, in which case it shall be deemed received at the close of the next business day).
Notice by overnight mail or courier shall be deemed to have been received two (2)
business days after it was sent. Notice deposited in the mail in the manner hereinabove
described shall be conclusively deemed to be effective upon deposit in the United States
mail. Notice given in any other manner shall be effective only in and when received by
the party to be notified. For the purpose of Notice, the addresses of the Parties shall, until
changed as hereinafter provided, be as follows:
If to the City, to:
15
Mayor
City of Lubbock
P.Q. Box 2000
Lubbock, Texas 79457-0001
Telephone: (806) 775-2003
Fax: (806) 775-2051
If to BRA, to:
General Manager
Brazos River Authority
P.O. Box 7555
Waco, Texas 76714-7555
Telephone: (254) 761-3100
Fax: (254) 761-3207
The Parties shall have the right from time to time and at any time to change their
respective addresses and each shall have the right to specify as its address any other
address by at least five (5) days written notice to the other Party.
D. ASSIGNABILITY: This Agreement shall bind the Parties and their legal successors, but
shall otherwise not be assignable by the Parties without prior written consent of the other
Parry, which consent shall not be unreasonably withheld. All of the respective
obligations of each of the Parties shall bind that Party and shall apply to and bind any
successors or assigns of that Party.
E. COSTS AND EXPENSES: Each Party to this Agreement shall be responsible for all costs
and expenses incurred by such Party in connection with this Agreement. No payment by
a Party for performance of a governmental function or service by the other Party is
contemplated by this Agreement; provided, however, if any such payment is ever deemed
to be required, such payment shall be made from current revenues available to the paying
Party.
16
F. GOVERNING LAW: This Agreement shall be governed by the Constitution and law of the
State of Texas, except as to matters exclusively controlled by the Constitution and
statutes of the United States of America.
G. AMENDMENTS: This Agreement may be amended or modified only by mutual written
agreement duly authorized by the respective governing bodies of the Parties and executed
by the duly authorized representative of each.
H. VENUE: Venue for any action arising hereunder that is brought by BRA shall be in
Lubbock County, Texas; venue for any action arising hereunder that is brought by the
City shall be in McLennan County, Texas.
1. THIRD PARTY BENEFICIARIES: Except as expressly provided herein, nothing in this
Agreement, express or implied, is intended to confer upon any person, other than the
Parties, any rights, benefits, or remedies under or by reason of this Agreement.
J. REMEDIES AND DAMAGES: Regarding the matters expressly addressed herein, the
Parties agree that in the event of a breach of this Agreement, remedies at law, such as
money damages, are inadequate and that the exclusive remedy for both Parties for breach
of this Agreement shall be specific performance. However, if and only if the remedy of
specific performance fails as a matter of law, in whole or in part, the Parties shall also be
entitled to seek any remedy that would have been available under law had the Parties not
agreed to specific performance as their exclusive remedy. Further, in any case neither
Party shall be liable or have any responsibility to the other for any indirect, special,
consequential, punitive, or delay- or performance -related damages including, without
limitation, lost earnings or profits. Such limitation on liability shall apply to any claim or
17
action, whether it is based, in whole or in part, on contract, negligence, strict liability,
tort, statute or any other theory of liability.
K. FURTHER ASSURANCES: The Parties agree 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 purposes and the provisions of this Agreement.
L. INTERPRETATION AND RELIANCE: No presumption will apply in favor of either Party in
the interpretation of this Agreement or in the resolution of any ambiguity of any
provisions thereof.
M. RELATIONSHIP OF PARTIES: This Agreement is based upon the active participation of the
Parties. Neither the execution nor the delivery of this Agreement 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 Agreement. Except as is expressly agreed to in writing in this Agreement, no
Party (or any of its agents, officers or employees) has any power to assume or create any
obligation on behalf of the other Party.
N. TERM: This Agreement shall commence on the Effective Date and shall continue in
effect for so long as either of the Parties' or their successors' and assigns' water rights
referenced in this Agreement remain in effect.
O. TERMINATION: This Agreement may be terminated by mutual written agreement of the
Parties.
P. WAIVER: Any waiver at any time by a Party of its rights with respect to default under
this Agreement shall not be deemed a waiver of such rights with respect to any
subsequent default or matter.
18
Q. AUTHORITY: Each of the persons signing on behalf of the Parties hereby confirms that
they have the authority to execute this Agreement on behalf of the Party indicated by
their signature.
EXECUTED this 14th day of may , 2009:
CITY OF LUBBOCK, TEXAS
,ev • ,w
Mayor TOM MARTIN
ATTEST/SEAL:
City iecretary Rebecca Garza
EXECUTED this day of , 2009:
BRAZ RIVER AUTHORITY
r
General Manager/ChicExecutive Officer
STATE OF TEXAS §
§ ACKNOWLEDGMENT
COUNTY OF McLENNAN §
This instrument was acknowledged before me on this the _q day of
, 2009, by Phillip J. Ford, a person known to me in his capacity as General
M ager / CEO of the Brazos River Authority.
stir ; JENNIFER WHITE
Notary Public
* STATE OF TEXAS
My Commission otary P lic In or the State of Texas
Fxpires 05/2'I/20O
19
This page intentionally left blank.
P
EXHIBIT A -ACCOUNTING PRINCIPLES
21
Resolution No. 2009-R0187
EXHIBIT A — ACCOUNTING PRINCIPLES
City of Lubbock and Brazos River Authority
Principles for an Accounting Plan Related to Current, Pending,
and Future Water Rights
on the
North Fork of the Double Mountain Fork of the Brazos River
Background
The City of Lubbock (the "City") and the Brazos River Authority (the
"Authority") have negotiated an Interlocal Agreement (the "Agreement") regarding
utilization of the parties' respective water supplies. As a condition to the Agreement, the
City has agreed that it will develop and implement an Accounting Plan (the "Plan") for
water flowing in the North Fork of the Double Mountain Fork of the Brazos River (the
"North Fork") to differentiate State Water from other sources of water available to the
City (Developed Playa Lake Water, Reclaimed Water, and Return Flows, use of which
has been authorized by the Texas Commission on Environmental Quality ("TCEQ), for
purposes of this document collectively referred to as "City Water"), as such terms are
defined in the Agreement. The Plan will be used to account for the various sources of
flows in the North Fork and determine the quantities of State Water that will be passed
downstream for senior water rights.
This document outlines the principles that will be used to develop the Plan. To
the extent that there are any inconsistencies between these principles and the terms of the
Agreement, the terms of the Agreement will prevail. The Plan will be developed from
these principles and both parties must agree to the Plan prior to the City utilizing any
water sources authorized pursuant to the pending water right applications as referenced in
the Agreement ("Applications"). The Plan will be submitted to the TCEQ for the
agency's review, approval and adjustment, if necessary to account for the specific
conditions ultimately included in the City's water rights pursuant to the City's
Applications. It is also possible that the TCEQ may require one or more accounting plans
for the City's pending and future water rights, and both the City and the Authority
anticipate that the Plan developed from these principles will be consistent with those
required by the TCEQ.
1
Accounting Plan Principles
The Plan will be based on direct measurement of City Water inflows and
diversions by the City and direct measurements of flows in the North Fork consisting of
combined City Water and State Water. All unmeasured inflows into the North Fork will
be accounted for as State Water. Inflows of return flows or reclaimed water by entities
other than the City will be accounted for as State Water unless the City enters into a
contract to reuse the water and obtains permission to reuse such flows from the TCEQ, in
which event these return flows will be accounted for as City Water.
Streamflows in, and City Water discharged to, the North Fork shall be measured
by the City using continuous recording devices. At a minimum, flows will be measured
at the following locations:
■ All existing and future wastewater effluent discharge locations from which the
City has a right to reuse effluent;
■ Outfalls of existing and future Developed Playa Lake Water (as defined in the
Agreement);
■ Outflows from Lake Ransom Canyon;
■ Outflows from the proposed Lake No. 7 and the proposed Post Reservoir (once
constructed);
■ A point on the North Fork above Lake No. 7 ( the "Upper Gage");
■ A point on the North Fork downstream of Lake Ransom Canyon but above the
Post Reservoir (the "Lower Gage"); and
■ Any subsequent points of discharge which may be mutually agreed to by the
parties.
Outflows from reservoirs may be based on established rating curves of reservoir
outlet works. Intervening flows may be estimated using contributing drainage area ratios.
For discharges by others, the City may use meters maintained by the dischargers.
In addition to the above measurements, the City shall maintain accurate daily
records of the volumes of water diverted under water rights that may be issued to it
pursuant to the Applications, and in a manner that is consistent with the terms of the
Agreement.
Tracking water through the North Fork will require application of estimated lag
times and channel delivery/loss factors. Channel delivery/loss factors can be interpolated
2
or extrapolated from the TCEQ Brazos WAM between the pertinent locations, or
determined using other methods mutually agreed to by the City, the Authority, and
TCEQ. Travel/lag times can be estimated using channel dimensions, or can be
determined through field studies. Channel delivery/loss factors and lag times will be
applied to all City Water and State Water.
These principles assume that Buffalo Springs Lake and Lake Ransom Canyon are
passively operated. In other words, these reservoirs will not be operated to pass either
State Water or City Water, and releases will occur only through passive spills from the
reservoirs.
The City shall include and maintain outlet structures with sufficient capacity to
pass all State Water through the dams for Lake No. 7 and/or Post Reservoir, when
constructed.
Determination of State Water and City Water shall be made at the following
locations along the North Fork, in an upstream to downstream order:
1. Upper Gage Flows. State Water from the upper end of the North Fork passing
the Upper Gage will be calculated as the difference between measured flows at
the Upper Gage and measured discharges of City Water above this gage,
including adjustments for losses and any diversions of City Water by the City,
including diversions authorized under Certificate of Adjudication 3705B1, above
the gage.
2. Lake No. 7 Inflows. State Water inflows to Lake No. 7 will be computed as
State Water flows passing the Upper Gage plus intervening flows to be computed
using drainage area ratios. For such computational purposes, inflows will be
assumed at the Lake No. 7 dam location. Inflows of City Water into Lake No. 7
will be determined based on the measured discharges of City Water, less losses
and diversions of City Water by the City.
' The City pumps groundwater underlying a wastewater effluent land application site and discharges these
flows into the North Fork upstream of the Jim Bertram Lake (JBL) System, pursuant to TPDES Permit No.
04599. CA 12-3705B authorizes the subsequent diversion of these discharges from the perimeters of Lakes
No. 1, 2 and 6 of the JBL System. A special condition in the permit stipulates that these diversions "will not
be subject to call by senior and superior water rights holders."
3
Prior to construction of Lake No. 7, Lake No. 7 inflows will not be computed, but
inflows into Buffalo Springs Lake and Lake Ransom Canyon will instead be
computed in similar fashion as described above.
3. Lake No. 7 Outflows. Outflows from Lake No. 7 will be measured by a
continuous recording device using appropriate outlet works ratings. The City will
pass daily inflows of State Water to Lake No. 7 unless Possum Kingdom Lake is
at or above elevation 1,000 feet mean sea level or inflows of State Water to Lake
No. 7 are less than 5 cubic feet per second (cfs). State Water outflows will be
considered the lesser of Lake No. 7 inflows of State Water and total outflows
from Lake No. 7; and City -Owned outflows will be the difference between total
Lake No. 7 outflows and outflows of State Water from Lake No. 7.
4. Buffalo Springs Lake/Lake Ransom Canyon Inflows. Buffalo Springs Lake
and Lake Ransom Canyon (Buffalo/Ransom) are assumed to be passively
operated and will be treated here and in the Plan as a single measurement reach,
with computations to occur at the Lake Ransom Canyon Dam. Inflows of State
Water into Buffalo/Ransom will be computed as State Water outflows from Lake
No. 7, plus intervening inflows computed using a drainage area ratio from the
Upper Gage, less losses and any diversion of State Water between Lake No. 7 and
the Lake Ransom Canyon Dam. Inflows of City Water into Buffalo/Ransom will
be computed as City Water outflows from Lake No. 7, plus any discharges of City
Water between Lake No. 7 and the Lake Ransom Canyon Dam, less losses and
any diversions of City Water between Lake No. 7 and the Lake Ransom Canyon
Dam. Normal and customary channel losses will be applied to City Water inflows
that pass through Buffalo/Ransom.
5. Buffalo/Ransom Outflows. Buffalo Springs Lake and Lake Ransom Canyon are
passively operated and are currently unable to pass inflows the reservoirs are not
entitled to impound. Outflows will only be considered from Buffalo/Ransom
when flows are actually spilling from Lake Ransom Canyon. On days when Lake
Ransom Canyon is spilling, outflows will be allotted proportionately to State
4
Water and City Water based upon daily Buffalo Springs Lake/Lake Ransom
Canyon Inflows.
6. Lower Gage Flows. State Water passing the Lower Gage will be computed as
the gage flows minus City Water passing the gage. City Water passing the gage
will be computed as City Water outflows from Buffalo/Ransom, plus discharges
of City Water between Lake Ransom Canyon and the gage, minus losses and
diversions by the City of City Water between Lake Ransom Canyon and the gage.
7. Post Reservoir Location Inflows. State Water inflows to the Post Reservoir
location will be computed as State Water passing the Lower Gage, plus
intervening flows computed by use of a drainage area ratio based on the
intervening area between the Lower Gage and Post Reservoir, less losses and any
diversions of State Water. The City will pass all State Water inflows to the Post
Reservoir unless Possum Kingdom Lake is at or above elevation 1,000 feet mean
sea level or inflows of State Water to the Post Reservoir are less than 5 cfs, or as
otherwise determined in the future jointly by the City and the Authority.
In order to allow the City to use State Water at times when no harm would result
to the Authority's downstream senior water rights, depletions of State Water made under
the City's water rights identified in said Agreement will only occur when Possum
Kingdom Reservoir is at or above elevation 1,000 feet mean sea level or when the flow of
State Water in the North Fork above the City's point of impoundment or diversion is less
than 5 cfs. At other times, diversions and impoundment of water by the City will be
limited to City Water, and the full amount of State Water at the lowest diversion or
impoundment point will be passed downstream. The lowest diversion or impoundment
point will vary depending on the sequence of project development. Prior to construction
of the proposed Lake No. 7 and/or Post Reservoir, this point may be a run -of -the -river
diversion location. After construction of the proposed Lake No. 7 and/or Post Reservoir,
the lowest point can be the outflows of the Lake 7 or Post Reservoir, or a downstream
run -of -the -river diversion point, whichever is farthest downstream.
R
The final Plan will establish procedures for the Authority to communicate the
status of Possum Kingdom Lake to the City in a timely fashion and identify procedures
for the City and the Authority to monitor compliance with the Agreement.
It is anticipated that the City will monitor compliance with the Plan on a daily
basis until such time as storage has been constructed for City Water (Lake No. 7 and/or
Post Reservoir). After the construction of reservoir storage, compliance may be
monitored over a longer, mutually agreeable period such as weekly or monthly. At that
time the Plan may be modified to allow the City to temporarily store State Water that
should otherwise have been passed downstream according to the Plan, as long as the
appropriate volume of water is passed downstream in a timely manner acceptable to the
Authority.
C7
Lloyd
Gosselink.
ATTORNEYS AT LAW
Mr, Rochelle's Direct Line: (512) 322-5810
mrochelle atlglawfirm,coin
May 12, 2009
Resolution No. 2009-RO187
816 Congress Avenue, Suite 1900
Austin, Texas 78701
Tetephone: (S 12) 322-5800
Facsimile: (S 12) 472-0532
wvvw 1glaMrm.com
Mr. Thomas L. Adams VIA ELECTRONIC TRANSMISSION
Deputy City Manager AND FIRST-CLASS MAIL
P.O. Box 2000
Lubbock, Texas 79457
Re: Interlocal Agreement between the City of Lubbock and the Brazos River
Authority (2020-02)
Dear Mr. Adams:
The enclosed Interlocal Agreement between the City of Lubbock and the Brazos River
Authority has been reviewed by our firm as to legal form, and it is provided to you with our
approval.
Sincerely,
Martin C. Rochelle
MCR/plh
202010211tr09051 I plh
ENCLOSURE
CC. Ms. Paige L. Hamilton
Lloyd Gosselink Rochelle & Townsend, PC.
Resolution No. 2009-RO187
P.O. Box 2000 • 1625 13th Street • Lubbock, TX 79457
(806) 775-3002 • Fax: (806) 775-2051
Office of the City Manager
May 12, 2009
Tom Martin, Mayor
Members of the City Council
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457
Re: Interlocal Agreement between the City of Lubbock and the Brazos River
Authority
Dear Mayor and Council:
As the Deputy City Manager with responsibility over the Water Utilities Department, I
have participated in the contract negotiations with the Brazos River Authority, and
approve the content of the proposed agreement. I recommend it for your consideration
and approval. The Lubbock Water Advisory Commission has also reviewed the
agreement and recommends approval.
Sincerely,
r
Thomas L. Adams
Deputy City Manager
TLA/bb