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HomeMy WebLinkAboutResolution - 2007-R0162 - Declaration Of Intent - White River Municipal Water District - 04_12_2007Resolution No. 2007—RO162 April 12, 2007 Item No. 6.9 RESOLUTION 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 Declaration of Intent between the City of Lubbock and White River Municipal Water District, and all related documents. Said Declaration of Intent is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 12th day of April 2007. ATTEST: Reba ca Garza, City Secretary APPROVED AS TO CONTENT: ( n(1009 - homas Adams Deputy City Manager/Water Utilities Director APPROVED AS TO FORM: Richard . Casner First Assistant City Attorney m1/ccdocs/White River-res March 14, 2007 Resolution No. 2007—ROI62 DECLARATION OF INTENT (Post Reservoir Project) THIS DECLARATION OF INTENT ("Declaration") is executed this 12th day of April, 2007, by and between the CITY OF LUBBOCK, Texas, a Texas home rule municipal corporation ("City"), and WHITE RIVER MUNICIPAL WATER DISTRICT, a Conservation and Reclamation District created by H.B. No. 468 enacted by the 551h Legislature of the State of Texas ("District"). Recitals WHEREAS, the District is the owner of that certain Certificate of Adjudication, No. 12-3711, issued subject to the terms, conditions and provisions of the final decree of the 39th Judicial District Court of Haskell County, Texas, Cause No. 9356, In Re: The Adjudication of Water Rights of the Salt Fork and Double Mountain Fork Watersheds of the Brazos River Basin, dated September 18, 1982 (the "Permit"); WHEREAS, the Permit authorizes the District to construct a dam and reservoir on the North Fork of the Double Mountain Fork of the Brazos River (the "Reservoir"), having an impoundment capacity of 57,420 acre-feet of water and authorizing the District to divert and use up to but not in excess of 10,600 acre-feet of water per year, for the purposes set forth therein; WHEREAS, the City has an interest in acquiring such Permit from the District and constructing the Reservoir for municipal use and purposes, and the District has an interest in transferring the Permit to the City, subject to the execution of a mutually satisfactory and acceptable agreement to be negotiated by the parties; WHEREAS, numerous preliminary activities (the "Activities") must be undertaken by the City in order for it to evaluate the feasibility and desirability of constructing the Reservoir; and WHEREAS, due to the need to conduct the Activities, the City and District now desire to enter into this Declaration. Declarations NOW, THEREFORE, for and in consideration of the mutual benefits that may be derived from the construction of the Reservoir, the City and District parties hereby declare and set forth their intentions as follows: 1. As promptly as is reasonably possible after the execution of this Declaration, the parties shall negotiate and work toward the preparation and execution of formal contract documents containing mutually satisfactory and acceptable terms, covenants, conditions, and other provisions providing for the transfer of the Permit and the construction of the Reservoir, such terms, covenants, conditions, and provisions to address, without limitation, the following: • the consideration to be provided by the City to the District for the Permit, including the potential commitment of water to the District from the Reservoir and/or Lake Alan Henry • the funding and construction of facilities and infrastructure necessary to transport water from the Reservoir and/or Lake Alan Henry to the District • the conditions upon which water committed to the District will be limited, if any, including potential reduction as a result of drought or loss of yield from the Reservoir and/or Lake Alan Henry • the period of time in which the City shall have to commence the construction of the Reservoir • provisions for the reassignment of the Permit to the District in the event the City fails to commence construction of the Reservoir prior to the expiration of time provided (including any extensions), or otherwise determines that it no longer desires to construct the Reservoir • the responsibility for payment of costs that may be incurred by the parties in conducting the preliminary Activities • representations, warranties, and indemnities, if any, to be provided by and between the parties • the degree of City support of the District in its existing contractual arrangements and cooperation with the District as water supply alternatives are considered that may affect the member cities of the District 2. Pending execution of formal contract documents, this Declaration will authorize the City to commence and undertake the following Activities for the purpose of determining the feasibility and desirability of constructing the Reservoir - (a) propose strategies involving the Reservoir to the Region O planning group, and/or other regional planning groups as deemed necessary by the City (b) negotiate with the Brazos River Authority ("BRA") regarding the subordination of the rights of the BRA to water rights authorized by the Permit and/or water rights either now owned or in the application process with the Texas Commission on Environmental Quality ("TCEQ') within the watershed of the North Fork of the Double Mountain Fork of the Brazos River ("North Fork") (c) apply to the TCEQ for permits or authorizations to appropriate waters of the State of Texas ("State"), to discharge wastewater into the North Fork, authorize the reuse of water discharged by the City into the North Fork, and utilize the beds and banks of the State to transport such water to any point on or along any stretch of the North Fork (d) conduct studies and surveys regarding the construction and operation of the Reservoir, including without limitation feasibility reviews and studies, environmental studies, studies related to the U.S. Corp of Engineers Permits, archeological studies, and/or such other studies as the City deems necessary or advisable to investigate and document the feasibility and desirability of the Reservoir as a water supply project (e) negotiate and acquire such easements, licenses, privileges, leases, options, and/or titles to property that the City deems necessary or advisable for the construction of the Reservoir and related facilities (f) deliberate with the State legislature and the TCEQ regarding the amendment or modification of the Permit in the manner and to the extent specified in that certain e-mail transmission from the City to the District, dated February 9, 2007, a copy of which is incorporated into this Declaration as Attachment "A" 3. In the furtherance of this Declaration, and pending execution of formal contract documents, the parties agree as follows: (a) the District will make available to the City copies of all files and other information in the District's possession, or that the District has the right to obtain from third parties, concerning any prior engineering, feasibility, or other studies relating to the Reservoir and City may obtain further details or other information from such third parties on behalf of itself or the District (b) in the event the City shall conduct any additional studies regarding the Reservoir or the District's water supply, the city will provide the District with a copy of the final report received by the City (c) except as may be required by law, direction of the Attorney General or order of a Court of competent jurisdiction, all negotiations between the City and the District, as well as any information shared between them pertaining to any engineering, feasibility, or other study relating to the Reservoir, is to remain confidential and will not be released to the public without the mutual written consent of the parties (d) the District will participate in the regional planning activities now being undertaken, or to be undertaken, by the City conceming preliminary engineering relating to Lake Alan Henry as a water supply source for the City and other parties; provided, however, such participation will be without cost to the District (e) except as provided in Paragraph 2(f) above, the City will not sponsor or otherwise support any legislation or agency action to amend, modify or otherwise alter the Permit, without first obtaining the written consent of the District (f) the District will not take any action before the TCEQ regarding the Permit, excepting activity related to renewal of the Permit, without notice to and agreement of the City 4. This Declaration shall terminate without liability to either party upon the occurrence of any one of the following events. - (a) the parties are unable to agree to mutually satisfactory and acceptable terms, covenants, conditions, and provisions providing for the transfer of the Permit and the construction of the Reservoir, and formal contract documents have not been executed within three (3) years from the date of this Declaration (b) either party notifies the other of its intention to abandon and terminate the proposed Reservoir project, such notice to be given in writing at least sixty (60) days in advance of the effective date of termination and shall be deemed to have been provided when deposited in the United States mail, certified mail, return receipt requested, addressed as follows: For City: For District. - Mayor of the City of Lubbock District Manager City of Lubbock HCR 2, Box 141 P.O. Box 2000 Spur, TX 79370 Lubbock, TX 79457 With copy to: City Manager of the City of Lubbock City of Lubbock P.O. Box 2000 Lubbock, TX 79457 (c) the disapproval of the proposed Reservoir project by any State or Federal agency having jurisdiction over same 5. This Declaration is merely a guide to the preparation of a mutually satisfactory agreement. Nothing in this Declaration shall be construed to preclude other provisions from being inserted into the formal contract documents at the request of either party. 6. The Declaration does not obligate either party to execute formal contract documents. The provisions of Paragraph 1, above, shall not constitute a binding obligation on the part of District or the City other than the commitment to negotiation in good faith. It is agreed and stipulated that, notwithstanding the agreement to negotiate in good faith, the negotiations may not result in formal contract documents, in such event neither party hereunder having any responsibility, obligation or liability to the other. In the event formal contract documents be signed by the parties, this Declaration will become null, void, and of no further effect_ 7. Nothing contained herein shall be construed to imply a joint venture, joint enterprise, partnership, or principal -agent relationship between the City and District. 8. Nothing contained herein shall be construed to provide or infer any rights or benefits whatsoever to any person or entity (governmental or otherwise) other than the City and District. IN WITNESS WHEREOF, this Declaration has been executed by the duly authorized representatives of the parties as of the date first set forth above. WHITE RIVER MUNICIPAL WATER DISTRICT Silas Flournoy Board President CITY OF LUBBOCK By- ✓��L DAVID A. OILLER, Mayor ATTEST: Reb cca Garza, City Secretary APPROVED AS TO CONTENT:---,, Tom Adams, Deputy City Manager APPROVED AS TO FORM: Richard K. Casner First Assistant City AttorneymVRichard WhieRiver-Declaration of Intent-rdln March 8, 2007 Resolution No. 2007-R0162 ATTACHMENT "A" From: Thomas Adams To: wrmwdgm@caprock-spur.com Date: 2/9/2007 10:44:37 AM Subject: Post Reservoir Permit Would White River support Lubbock asking for legislation to amend the Post Reservoir Permit? We have some concerns about how the permit is written. The main three points in question include the following: 1. Use of the 10,600 acre feet of permitted water is divided into municipal, industrial, and mining. We would like to amend it for flexibility. We need the ability to use the water for municipal purposes. Using it for other purposes can be optional, but the permit needs to allow for up to 10,600 acre feet to be used for municipal purposes. 2. The permit restricts the storage capacity by the siltation pool language. The capacity of 57,420 acre feet is reduced down to actual storage of 38,420 acre feet and the state maintains control over the siltation pool. We need the benefit of storage capacity for the entire reservoir. 3. Special conditions give the state unlimited control over releases once the siltation pool is filled in. We need language that provides for reasonable releases, but not open ended. Let me know if this is agreeable. I will call soon. This is moving a little faster than our letter of agreement, but the filing deadline is March 9th. Thanks. Tom "Serve with Humility, Lead with Passion, Commit to Excellence" Thomas L. Adams Deputy City Manager P.O. Box 2000 Lubbock, TX 79457 (806) 775-2015 tadams@mylubbock.us