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Home My WebLink AboutResolution - 3822 - Amendment #1 To Agreements - BRA - Water Supply, Lake Alan Henry Project - 02_27_1992Resolution No. 3822 February 27, 1992 Item #19 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 an Amendment No. 1 to Water Supply Agreement by and between Brazos River Authority and City of Lubbock, attached herewith, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this ATTEST: e Boyd, U ty Al"'ROVED AS TO CONTENT: 1 n A. aw ins, Director of Water Utilities APPROVED AS TO FORM: John C. Ross, Jr., City Attorney JCR:da/AGENDA-D2/BRAZ0SRV .RES 27th day of February , 1992. 4fE McMI N, MAYOR Resolution No. 3822 February 27, 1992 Item #19 AMENDMENT NO. 1 TO "WATER SUPPLY AGREEMENT BY AND BETWEEN BRAZOS RIVER AUTHORITY AND CITY OF LUBBOCK" Amendment No. 1 dated this the 27th day of 1992 February , 19XW, to Water Supply Agreement By and Between Brazos River Authority ("Authority"), a river authority of the State of Texas, and the City of Lubbock, Lubbock County, Texas ("City"), a home rule city organized under the laws of Texas. 1. RECITALS. Authority and City are parties to an agreement dated May 11, 1989, entitled "Water Supply Agreement By And Between Brazos River Authority and City of Lubbock" ("Base Agreement") relating to the construction and operation of Lake Alan Henry on the South Fork of the Double Mountain Fork of the Brazos River in Kent and Garza Counties, Texas. In Base Agreement, Lake Alan Henry is called "Lake" and the term "Project" is defined as meaning Lake, together with certain municipal and intake facilities. Base Agreement requires Authority to construct Project and City to acquire all land and land rights not already owed by it and needed in connection with construction, operation and maintenance of Project and to grant easements over the lands in question which are needed by Authority in connection with Project. During construction of Project by Authority, it has been determined that it is desirable that Authority, rather than City, obtain the subordination of certain affected outstanding oil, gas and other mineral interests affected by Project. It has also been determined that it is desirable for Authority rather than City to acquire certain existing facilities ("Facilities") which are used or designed for use in the exploration for, production of, transportation of and/or storage of oil, gas and minerals and which may be affected by Project. The purpose of this Amendment No. 1 to Base Agreement is to provide (a) for Authority, rather than City, to obtain the subordinations in question and to acquire Facilities; (b) that costs incurred by Authority in obtaining such subordinations and in acquiring Facilities shall be deemed "Project Costs", as that term is defined in Base Agreement; and (c) that upon City's assumption of operation of Project under the provisions of section 14 of Base Agreement, Authority will assign unto City all rights obtained pursuant to the provisions of this Amendment No. 1. 2. SUBORDINATIONS AND FACILITY ACQUISITIONS. Authority agrees that it will (a) obtain subordinations of all presently outstanding oil, gas and other mineral interests affected by Project which are deemed by "Engineer" (as that term is defined in Base Agreement) to be needed for the construction and proper operation and maintenance of Project, and (b) that it will acquire all Facilities affected by Project and recommended for acquisition by Engineer, rather than requiring that such subordinations be obtained and Facilities be acquired by City 2 as provided in Section 3 of Base Agreement. Failure of Authority to obtain subordination of any outstanding severed oil, gas and other mineral interest in lands affected by Project pursuant to the rights granted in this Amendment No. 1 shall not impair Authority's rights provided in Section 26 of Base Agreement. 3. COSTS AS PROJECT COSTS. Costs incurred by Authority in obtaining subordinations or in acquisition of Facilities pursuant to Section 2, above, shall be deemed Project Costs. 4. ASSIGNMENT OF RIGHTS UPON CITY'S ASSUMPTION OF OPERATION. Authority agrees that upon City's assumption of operation of Project pursuant to its rights under the provisions of Section 14 of Base Contract, Authority will, within a reasonable time after such assumption and upon written request from City, make written assignments of all rights acquired by it pursuant to this Amendment No. 1 unto City, with such assignments to be in form satisfactory to counsel for City. BRAZOS RIVER AUTHORITY B Y /' �Y f 4 ` 1ff&e Roy A. Roberts, P.E. General Manager 3 ATTEST: Assistant Secretary CITY OF LUBBOCK BY " B. C. McM' n Mayor ATTEST: City cretary Ranette oy (Brazos\Amendment) Resolution No. 3822 February 27, 1992 Item # 19 THE STATE OF TEXAS COUNTY OF MCLENNAN BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared HELEN K. STOUT, who being on oath duly sworn, stated: "I am Assistant Secretary of Brazos River Authority. At a meeting of the Board of Directors of Brazos River Authority duly called and held on the 27th day of January, 1992, the following Resolution was adopted: RESOLUTION BE IT RESOLVED by the Board of Directors of Brazos River Authority that: a. The Board of Directors of Brazos River Authority finds that there is a necessity for and that the public convenience and necessity require that Brazos River Authority acquire the following for the purpose of accommodating construction, operation and maintenance of Lake Alan Henry ("Project"), now being constructed by Brazos River Authority on the South Fork of the Double Mountain Fork of the Brazos River in Kent and Garza Counties, Texas: 1. subordination of all oil, gas and other mineral interests which may be affected by Project to the right of Brazos River Authority to construct, operate and maintain Lake Alan Henry, so that no use of the surface of the lands in question may be made for exploration for, recovery of or storage or transport of such oil, gas and other minerals (or of oil, gas or other minerals produced from other tracts); 2. all facilities located in, on or under lands affected by Project for use in exploration for, recovery of or storage or transport of oil, gas and other minerals, including, but not limited r to, pipelines, tanks, other pipe, machinery, pumps, engines and other equipment. b. The General Manager be, and he is hereby, authorized to enter into an agreement with the City of Lubbock, Lubbock County, Texas, amending contract between Brazos River Authority and said City dated the llth day of May, 1989, providing for the construction, operation and maintenance of Project, to provide for the obtaining of the subordinations and the acquisition of the facilities described in paragraph a, above, to be accomplished by Brazos River Authority in lieu of obtaining of such subordinations and acquisition of such facilities by the City, provided that the costs involved shall be deemed to be costs of development and construction of Lake Alan Henry to be paid with the proceeds of bonds issued for such purposes, supported by the rates for water from such project to be charged to the City of Lubbock. C. The General Manager be, and he is hereby, authorized to determine the ownership of the interests and properties described in Paragraph a, above, and, if possible, to obtain the subordinations and acquire the facilities involved by negotiation under policies heretofore adopted by the Board of Directors of Brazos River Authority. d. The General Manager be, and he is hereby, further authorized to take all steps necessary to obtain the subordinations and acquire the facilities described in paragraph a, above, which cannot be acquired by negotiation pursuant to the provisions of paragraph c, above, by eminent domain. e. The General Manager be, and he is hereby, further authorized to certify to the law firm of Carr, Fouts, Hunt, Craig, Terrill & Wolfe, Lubbock, Texas, the description of each right and facility which is to be obtained or acquired by eminent domain pursuant to this resolution together with the names and addresses of the owners thereof and to direct such law firm to bring, maintain and prosecute the necessary legal action to acquire or obtain such rights and facilities by eminent domain and, in that connection, to represent Brazos River Authority in such proceedings in eminent domain and to take all steps E deemed necessary by such counsel for the maintaining for such actions and prosecuting same to final judgment, with the employment of counsel to be pursuant to provisions of letter agreement with such firm set forth in letter dated June 13, 1990, from Aubrey J. Fouts to David B. Kultgen, General Counsel for Brazos River Authority, and accepted on behalf of Brazos River Authority by letter dated August 8, 1990, and with the General Manager to arrange for the provision of such support for counsel in the handling of such litigation as counsel shall request and he shall deem appropriate. f. The terms and conditions of employment of counsel referred to in paragraph e, above, are determined by the Board of Directors as being in the best interest of Brazos River Authority. Said Resolution has never been revoked and Roy A. Roberts is General Manager of Brazos River Authority." Helen K. Stout SUBSCRIBED AND SWORN TO BEFORE ME by HELEN K. STOUT, on this the 2RyGt day January, 1992. N tary Public in and for the State of Texas RICHARD KUSLER NOTARY PUBLIC Q STATE OF TEXAS a Commission EXpi*t 122.21.93 3