HomeMy WebLinkAbout021872 RES - 02/22/1994A RESOLUTION
AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AGREEMENT AMENDING THE AGREEMENT AUTHORIZED BY
RESOLUTION NO. 21485 FOR A PURCHASE OF WATER
RIGHTS FROM THE GARWOOD IRRIGATION COMPANY BY
EXTENDING THE TIME FOR CORPUS CHRISTI TO
PURCHASE WATER RIGHTS TO 35,000 ACRE FEET OF
WATER OR TO GIVE NOTICE TO MAKE APPLICATION TO
THE TEXAS NATURAL RESOURCES CONSERVATION
COMMISSION REGARDING TRANSFER OF SUCH WATER;
BY CHANGING PROVISIONS FOR THE CONSIDERATION
TO BE PAID TO GARWOOD; AND BY MAKING OTHER
MODIFICATIONS AS SET FORTH IN THE ATTACHED
AGREEMENT
WHEREAS, the City of Corpus Christi previously entered into
the "Agreement Between The City of Corpus Christi And Garwood
Irrigation Company" ("the Agreement") as authorized by the City
Council in Resolution No. 21485 on September 22, 1992; and
WHEREAS, it is advantageous to the City to enter into an
agreement with Garwood Irrigation Company amending the Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF CORPUS CHRISTI, TEXAS:
The City Manager is hereby authorized to execute the "Exercise
Of Option And Amendment To Agreement Between The City of Corpus
Christi And Garwood Irrigation Company", attached hereto as Exhibit
A and incorporated herein, which amends the Agreement: to provide
for purchase of a water right of 35,000 acre feet per year, to
provide for five periodic increases in the purchase price by $10
per acre foot based upon the date of notice by the City, to extend
the termination date to January 1, 1997, to increase the monthly
payments to $25,000, to provide for a diversion rate up to 150
cubic feet per second, to provide for filing of a water
conservation plan with the Texas Natural Resources Conservation
Commission, and to make certain other changes, all as specifically
contained in Exhibit A.
ATTEST:
City Secretary
MAYO kC4-:'-'‘
THE NT Y OF CORPUS CHRISTI
APPROVED: ikaNDAY OF Fe,kyvaW , 19114
JAMES R. BRAY JR., CITY ATTORNEY
\ord\94012.skp
MICROFILMED
EXERCISE OF OPTION
AND AMENDMENT TO
AGREEMENT BETWEEN THE
CITY OF CORPUS CHRISTI AND
GARWOOD IRRIGATION COMPANY
This Exercise of Option and Amendment to Agreement is entered into as of the
day of , 1994, by and between the City of Corpus Christi, Texas
(the "City"), and Garwood Irrigation Company ("Garwood").
The City and Garwood entered into the Agreement as of the 22nd day of September,
1992. Since that time, the City has exercised its option with the Lavaca-Navidad River
Authority ("LNRA") for the purchase of up to 41,840 acre-feet of water per year from Lake
Texana. The City now desires to exercise its option with Garwood for the purchase of the full
35,000 acre -foot -per -year portion of Garwood's right to use the waters of the Colorado River
under Certificate of Adjudication No. 14-5434, as amended by Certificate of Adjudication
No. 14-5434A ("Garwood's Right"). The City also desires certain modifications to the
Agreement to allow the City to delay further in requesting Garwood to submit the necessary
application to the Texas Natural Resources Conservation Commission, if the City should
determine that further delay is necessary or desirable.
NOW, THEREFORE, in consideration of the mutual benefits and covenants contained
herein, the City and Garwood hereby agree that the Agreement is amended in its entirety to read
as follows:
1. Sale of Water Right. Subject to the terms of this Agreement, Garwood agrees
to sell to the City, and the City agrees to purchase from Garwood, a 35,000 acre -foot -per -year
portion of Garwood's 168,000 acre -foot -per -year right. The priority of the 35,000 acre -foot -per -
year portion purchased by the City ("Corpus Christi's Right") shall be subordinate in time
priority and all other respects to the 133,000 acre -foot -per -year portion retained by Garwood
("Garwood's Remaining Right"). The maximum authorized diversion rate under Garwood's
Right (750 cfs) shall be divided as follows: 600 cfs for Garwood's Remaining Right and 150 cfs
for Corpus Christi's Right.
2. Purchase Price. The one-time price to be paid by the City to Garwood for the
purchase of Corpus Christi's Right (the "Purchase Price") shall be the product of the Per -Acre -
Foot Price (hereinafter defined) times 35,000 acre-feet per year. The "Per -Acre -Foot Price"
shall depend upon the time period during which the City gives Garwood written notice either to
purchase Corpus Christi's Right pursuant to Paragraph 5, below, or to submit an application to
amend Corpus Christi's Right pursuant to Paragraph 6, below, whichever is earlier (the "First
Notice"), as set forth in the following table:
Time Period During Which City
Gives Garwood First Notice Per -Acre -Foot Price
after September 21, 1992 and
before July 1, 1994 $400
after June 30, 1994 and
before January 1, 1995 $410
after December 31, 1994 and
before July 1, 1995 $420
after June 30, 1995 and
before January 1, 1996 $430
after December 31, 1995 and
before July 1, 1996 $440
after June 30, 1996 and
before January 1, 1997 $450
3. Term of Agreement. This Agreement shall terminate without notice on
January 1, 1997, unless the City before that date gives Garwood written notice to purchase
Corpus Christi's Right pursuant to Paragraph 5, below, or written notice to submit an application
to amend Corpus Christi's Right pursuant to Paragraph 6, below.
4. Monthly Payments. The City shall pay Garwood $20,000 upon execution of this
Agreement as of September 22, 1992, and an amount each month thereafter (the "Monthly
Payment"), each Monthly Payment being due and payable on the first day of each month
beginning on October 1, 1992, with the final payment due on the earlier of the following dates:
(1) the first day of the month during which Garwood receives payment of the Amount Due
(hereinafter defined) as provided by Paragraph 5, below; or (2) the first day of the month during
which this Agreement is terminated. The City shall not be relieved of its obligation to make any
payments under this Paragraph by reason of it giving to Garwood written notice to purchase
Corpus Christi's Right pursuant to Paragraph 5, below, or written notice to submit an application
to amend Corpus Christi's Right pursuant to Paragraph 6, below, or by it accepting any
Commission Order pursuant to Paragraph 7, below, or by the occurrence of the Final
Commission Date as defined in Paragraph 7, below. The "Monthly Payment" shall be $10,000
for each payment due and payable on or prior to February 1, 1994, and $25,000 for each
payment due and payable thereafter.
5. Notice of Purchase. At any time prior to termination of this Agreement, the City
may give Garwood written notice of purchase of Corpus Christi's Right ("Notice of Purchase").
The City shall pay Garwood the Amount Due within ninety (90) days after the date it gives
Garwood such notice, or within ninety (90) days after the date it is deemed to have given
Garwood such notice pursuant to Paragraph 7, below. The Amount Due at any time shall be
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the sum of the Purchase Price, plus all accrued interest to that time on the Purchase Price
pursuant to Paragraph 7, below, less all amounts paid to Garwood under Paragraph 4, above,
less all amounts paid to Garwood as Reimbursable Application Costs under Paragraph 11, below.
6. Notice to Submit Application. At any time prior to termination of this
Agreement, but in no event later than December 31, 1996, the City may give Garwood written
notice to submit the application to amend Corpus Christi's right as described in Paragraph 11,
below (the "Application"). Upon the City giving such notice, or upon the City giving Notice
of Purchase pursuant to Paragraph 5, above, whichever first occurs, Garwood, if it has not
already done so before that time, shall divide Garwood's Right into two separate and distinct
portions: one being Corpus Christi's Right, and the other being Garwood's Remaining Right.
From and after the date of such division, Corpus Christi's Right shall be subordinate in time
priority and all other respects to Garwood's Remaining Right.
If the City gives Garwood the written notice specified above on or before December 31,
1996, then it shall also give to Garwood within 30 days after such notice evidence satisfactory
to Garwood (the "Required Evidence") that the City has at that time the legal authority and
financial ability to perform all obligations that it will or may thereafter incur under this
Agreement including, without limitation, all obligations that the City will or may incur by its
failure to give Garwood written notice of termination under Paragraph 8, below, before the Date
of Acceptance (hereinafter defined) for any Order (hereinafter defined). Garwood's satisfaction
with the evidence submitted by the City shall not be unreasonably withheld.
7. Acceptance of Order. If the City does not give Garwood written notice of
termination under Paragraph 8, below, before the Date of Acceptance (hereinafter defined) for
any Order (hereinafter defined), then, on that Date of Acceptance the City shall automatically
be deemed to have determined that Order to be acceptable to the City ("Acceptable Order").
If this Agreement is not subsequently terminated by Garwood, and if the Acceptable Order
remains unchanged by the Texas Natural Resources Conservation Commission or its successor
(the "Commission") or any court, then the City shall be deemed to have given Garwood Notice
of Purchase under Paragraph 5, above, on the date that such Acceptable Order becomes final,
as set forth below in this Paragraph 7. An "Order" is any decision or order of the Commission
granting, denying or dismissing the Application in whole or in part. The "Date of Acceptance"
for any Order is the tenth day after the date that the City, or its attorney of record in the hearing
or other proceeding before the Commission on the Application, is notified of that Order.
The Acceptable Order shall become final within the meaning of this Agreement upon the
earliest of the following dates (the "Final Date"): (1) in the absence of a timely motion for
rehearing complaining of the Acceptable Order, on the expiration of the period of time for filing
such a motion for rehearing under Section 2001.146, Texas Government Code; (2) in the
absence of a timely petition to a District Court of Travis County appealing the Acceptable Order,
on the expiration of the period of time for filing such a petition under Section 2001.176, Texas
Government Code; or (3) upon entry by any court of competent jurisdiction of a non -appealable
judgment or order affirming the Acceptable Order, or upon any such judgment or order
becoming non -appealable.
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Commencing on the Final Commission Date (hereinafter defined), interest shall accrue
on the Purchase Price at the Interest Rate (hereinafter defined), until such time as the City pays
the Amount Due. The "Interest Rate" shall be the rate per annum equal to the lesser of: (1) the
Prime Rate (hereinafter defined) of interest as it fluctuates, or (2) the maximum lawful rate
which may be contracted for, charged, taken, received or reserved by Garwood in accordance
with the applicable laws of the State of Texas (or applicable United States federal law to the
extent that it permits Garwood to contract for, charge, take, receive or reserve a greater amount
of interest than under Texas law), taking into account all charges made in connection with this
Agreement which are treated as interest under applicable law. The "Prime Rate" shall mean the
base rate of interest per annum established from time to time by Chemical Banking Corp., New
York, New York ("Chemical Bank") and designated as its prime rate. Fluctuations in the Prime
Rate shall become effective on the date each such change in such Prime Rate is established by
Chemical Bank.
The "Final Commission Date" shall be the earlier of the following dates: (1) in the
absence of a timely motion for rehearing complaining of an Acceptable Order, on the expiration
of the period of time for filing such a motion for rehearing under Section 2001.146, Texas
Government Code; or (2) if a motion for rehearing complaining of an Acceptable Order is filed
timely, on the date of rendition of the Commission order overruling the motion for rehearing,
or on the date the motion is overruled by operation of law.
Nothing herein shall be construed as authorization for the City to delay payment of the
Amount Due beyond ninety (90) days after the Final Date.
8. Termination of Agreement. The City may terminate this Agreement, by giving
written notice of such termination to Garwood, at any time, except during any period of time
beginning on the Date of Acceptance with respect to any Acceptable Order as defined in
Paragraph 7, above, and continuing for so long as such Acceptable Order remains unchanged
by the Commission or any court, and except as provided otherwise below in this Paragraph 8.
If the City does not give Garwood written notice of termination prior to any such Date of
Acceptance, then the City may not thereafter terminate this Agreement while that Acceptable
Order remains unchanged by the Commission or any court, and if that Acceptable Order
thereafter becomes final, then the City shall pay Garwood the Amount Due within ninety (90)
days after the Final Date.
Garwood may terminate this Agreement, by giving written notice of termination to the
City, at any time, except during any period of time beginning on the Final Commission Date
with respect to any Acceptable Order as defined in Paragraph 7, above, with respect to any
Acceptable Order, and continuing for so long as such Acceptable Order remains unchanged by
the Commission or any court, and except as provided otherwise below in this Paragraph 8, if
Garwood should conclude in good faith at that time that continuation of this Agreement is likely
to result in a material, adverse impact on Garwood's Right or the use or supply of water
thereunder. This Agreement shall terminate immediately upon the City's receipt of such notice.
If any court in an appeal from an Acceptable Order remands the case to the Commission
for the Commission to enter a new Order, then, except as provided otherwise below in this
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Paragraph 8, the Application shall be considered to be pending before the Commission prior to
the Commission's entry of any Order and any Order subsequently entered by the Commission
shall be subject to review by the City and Garwood pursuant to Paragraph 7, above.
If any change is made to an Acceptable Order by the entry of an order by any court in
an appeal from that Acceptable Order, and if the court does not remand the case to the
Commission for the Commission to enter a new Order that will be subject to review by the City
and Garwood pursuant to Paragraph 7, above, then the City may terminate this Option and this
Agreement by giving Garwood written notice of termination within ten days after being notified
of such order. If any change is made to an Acceptable Order by the entry of an order by any
court in an appeal from that Acceptable Order, and if the court does not remand the case to the
Commission for the Commission to enter a new Order that will be subject to review by the City
and Garwood pursuant to Paragraph 7, above, then Garwood may terminate this Option and this
Agreement by giving the City written notice of termination before the deadline for Garwood to
appeal that order, if Garwood should conclude in good faith at that time that continuation of this
Agreement is likely to result in a material, adverse impact on Garwood's Right or the use or
supply of water thereunder. This Agreement shall terminate immediately upon the City's receipt
of such notice. If neither party gives the other party notice of termination within the applicable
time period for each party, then the Acceptable Order as so revised shall thereafter be deemed
to be the Acceptable Order, neither the City nor Garwood may thereafter terminate this
Agreement while such Acceptable Order remains unchanged by the Commission or any court
and, if that Acceptable Order thereafter becomes final, then the City shall pay Garwood the
Amount Due within ninety (90) days after the Final Date.
Garwood may terminate this Agreement, by giving written notice of termination to the
City, at any time if the City fails to make timely payment of any of the payments required by
Paragraphs 4, above, and 11, below.
Garwood may terminate this Agreement, by giving written notice of termination to the
City, at any time after thirty (30) days after the date that the City gives Garwood written notice
to submit the Application under Paragraph 6, above, if, prior to that time, the City had not also
given Garwood the Required Evidence under Paragraph 6, above.
Garwood may terminate this Agreement, by giving written notice of termination to the
City, at any time after three years from the date that the City gives Garwood written notice to
submit the Application under Paragraph 6, above, if, prior to that time, the Commission had not
entered any Order or, if it had entered an Order, no Final Commission Date with respect to any
Acceptable Order had occurred. If a Final Commission Date with respect to an Acceptable
Order does occur prior to termination of this Agreement, and if the Acceptable Order is appealed
and the case is subsequently remanded to the Commission by any court for the Commission to
enter a new Order that will be subject to review by the City and Garwood pursuant to
Paragraph 7, above, then Garwood may terminate this Agreement by giving written notice to
the City, at any time after five years from the date that Garwood receives written notice to
submit the Application under Paragraph 6, above, if, at such time, there is no pending Order
or, if there is such a pending Order, the Final Commission Date with respect to that Order has
not yet occurred.
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Upon receipt of any notice of termination from Garwood, other than a notice of
termination based on Garwood's concluding in good faith that continuation of this Agreement
is likely to result in a material, adverse impact on Garwood's Right or the use or supply of water
thereunder, the City shall have thirty (30) days to give Garwood written Notice of Purchase
pursuant to Paragraph 5, above. If the City does give Garwood such written Notice of
Purchase, then the City, pursuant to Paragraph 5, above, shall pay Garwood the Amount Due
within ninety (90) days after the date it gives such notice. If Garwood does not receive such
written Notice of Purchase within such thirty -day period, this Agreement shall terminate in its
entirety. The City shall not object to withdrawal of the Application by Garwood if this
Agreement is terminated by either party pursuant to the terms of this Agreement.
If this Agreement is terminated by either party pursuant to the terms of this Agreement,
Garwood shall be entitled to retain all amounts paid by the City pursuant to this Agreement prior
to such termination, and to recover from the City any amounts not paid but required to be paid
pursuant to this Agreement prior to such termination. The City recognizes that the amounts to
be retained by and paid to Garwood in the event of termination are in consideration of the
extended period of time during which Garwood has agreed to refrain from committing in excess
of Garwood's Remaining Right on a long term basis (that extended period of time began several
years before the City finally entered into this Agreement, when the City first approached
Garwood and requested it to hold a portion of its right in reserve for the City), and in
consideration of the City's declining to purchase Corpus Christi's Right until the right is
amended to its satisfaction, and in consideration of Garwood's agreeing to seek the amendment
without any commitment from the City that it would purchase the right after the Commission
acts. The City further recognizes that the amounts retained by and paid to Garwood in the event
of termination should be the same regardless of which party terminates, so long as the
termination is pursuant to this Agreement.
9. Conveyance of Right by Garwood. Upon receipt of payment of the Amount
Due, Garwood shall convey Corpus Christi's Right, as it exists at that time (whether that be as
it is created when Garwood divides Garwood's Right into two portions pursuant to Paragraph 6,
above, or otherwise, or as it is amended by an Acceptable Order and subsequent court orders,
if any, or as it is subject to amendment pursuant to a pending Application), to the City, by
written conveyance in the form attached hereto as Exhibit 1 (the "Conveyance Document"),
modified and completed as set forth below. The Conveyance Document shall be modified and
completed as appropriate to accurately reflect Corpus Christi's Right, and other relevant facts,
as they exist at the time. The modifications and completions shall include the following:
provisions in the Conveyance Document that are within brackets shall be included as shown,
modified, or deleted; numbers, dates or other information indicated as being needed shall be
added; and choices indicated as needed to be made shall be made; all as appropriate to
accurately reflect the facts as they exist at the time. Corpus Christi's Right, as conveyed to the
City, shall prohibit the diversion of water from the point of diversion on the Colorado River
authorized under Garwood's Right utilizing Garwood's pumping plant or otherwise, and the use
of Garwood's canal system to convey such water, unless Garwood in its absolute discretion
should agree otherwise. Corpus Christi's Right, as conveyed to the City, shall not be
appurtenant in any respect to any of the facilities authorized or existing under Garwood's Right
including, without limitation, Garwood's pumping facilities, canal system, and low water dam.
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Notwithstanding anything herein to the contrary, under no circumstances shall Garwood be
required at any time to convey Corpus Christi's Right to the City if, and to the extent that, the
number of acre-feet authorized to be diverted and used annually under Garwood's Remaining
Right, as it exists at that time or as it may exist after the conclusion of any administrative or
judicial proceeding that is pending at that time, is less than 133,000 acre-feet per year. If
Garwood does convey Corpus Christi's Right to the City pursuant to this Paragraph, then, except
as provided otherwise in Paragraph 10, below, this Agreement shall terminate upon such
conveyance, and upon such termination the foregoing sentence shall have no further force or
effect whatsoever.
10. Pump Station and Conveyance Facility. The City presently contemplates that
it will construct a separate pump station and pipeline to convey water from the Colorado River
to the City of Corpus Christi and its service area, either directly or via Lake Texana. At the
present time, the City anticipates that the point of diversion for the pump station will be located
on the west bank of the Colorado River, either on the small reservoir created by Garwood's low
water dam, on land owned by Garwood, within Segment "A" as shown on Exhibit 2 attached
hereto, or upstream of the small reservoir created by Garwood's low water dam, on land owned
by third parties, within Segment "B" of the River as shown on Exhibit 3 attached hereto, or
downstream of Garwood's low water dam, on land owned by third parties, within Segment "C"
of the River as shown on Exhibit 4 attached hereto. Regardless of the location of the pump
station, the conveyance of water from the Colorado River and from the pump station shall be
by pipeline only, utilizing a route, design, and procedures for construction, operation,
maintenance and repair that do not interfere with Garwood's irrigation and other operations.
The City shall be responsible for obtaining all lands, easements and other interests in land
necessary for such pump station and pipeline.
If the City should decide that it desires to investigate seriously the question of whether
it should locate its pump station on the reservoir created by Garwood's low water dam, then it
shall so advise Garwood, and both parties agree to negotiate in good faith to determine whether
they can agree upon the terms and conditions of an agreement that would allow the City to
purchase from Garwood a portion of the land within Segment "A" for a pump station to pump
the water available under Corpus Christi's Right. Any such agreement must include terms and
conditions adequately addressing all relevant issues, including the following: the size, location,
and configuration of the site; the price and other terms for the purchase of the site; the financial
and other contributions by the City towards the maintenance, operation, repair, replacement and
improvement of the dam; the financial and other contributions by the City towards the
maintenance, repair and stabilization of the river banks abutting the small reservoir created by
the dam and immediately downstream of the dam; and safeguards to insure that the construction,
operation, maintenance and repair of the pump station, the intake to the pump station and the
pipeline from the pump station will not interfere with any of Garwood's operations.
The City agrees that, if for whatever reason it and Garwood are unable to reach such an
agreement on or before the earliest of January 1, 1998, or the date this Agreement is terminated,
or the Date of Acceptance for any Order, then the City shall not construct any pump station, or
locate any point of diversion for any pump station, anywhere on either bank of the Colorado
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r-
River within a segment of the River upstream of Garwood's low water dam beginning at the dam
and extending upstream to the most downstream point within Segment "B."
If Garwood conveys Corpus Christi's Right to the City pursuant to Paragraph 9, above,
then the City shall determine, by not later than the date five years after the date of conveyance,
whether it needs the full maximum rate of diversion conveyed as part of the right. Promptly
after that date, the City shall convey back to Garwood any excess portion of the maximum rate
of diversion conveyed to the City, as set forth below. If the City by such date does not submit
plans for the pump station to the Commission for its approval, then the City shall convey back
to Garwood any portion of the maximum rate of diversion conveyed to the City in excess of 100
cfs. If the City by such date does submit such plans for Commission approval, and if such plans
reflect that the pump station will have a maximum rate of diversion less than the full maximum
rate of diversion conveyed, then the City shall convey that excess back to Garwood.
11. Amendment of Corpus Christi's Right. Upon the City giving Garwood both
the written notice to submit the Application and the Required Evidence under Paragraph 6,
above, Garwood, to the extent that it has not already done so before that time, shall promptly
prepare and submit the Application to the Commission. Garwood shall thereafter pursue the
Application before the Commission and assist the Commission in defending any Acceptable
Order against challenges by others in the courts. The Application shall, to the extent necessary,
seek to amend Corpus Christi's Right to:
(a) authorize the use of such water for municipal and industrial
purposes;
(b) authorize the diversion of such water from an undefined point of
diversion on the west bank of the Colorado River within either Segment "A" on
the Colorado River as shown on Exhibit 2, Segment "B" on the Colorado River
as shown on Exhibit 3, or Segment "C" on the Colorado River as shown on
Exhibit 4;
(c) confirm that the right already exists, or grant the right, to divert
such water from the Colorado River Basin and transfer it for use within Aransas,
Atascosa, Bee, Duval, Jim Wells, Kleberg, Live Oak, McMullen, Nueces and
San Patricio Counties; and
(d) confirm that Corpus Christi's Right, as so amended, retains the
November 1, 1900 priority date of Garwood's Right.
The Application shall be reviewed and approved by the City before it is submitted to the
Commission.
The City agrees to seek intervention in any hearing or other proceeding on the
Application as a party in support of the Application, to make its employees and consultants
available to develop or assist in developing the necessary documents to be filed with the
Commission as part of the Application or otherwise, to prepare and file as part of or in
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conjunction with the Application a water conservation plan by the City in accordance with
Commission Rules and guidelines if approval of such plan is needed for approval of the
Application or if the filing of such plan is requested by the Commission or its staff, to testify
in support of the Application and any water conservation plan that may be filed, and to otherwise
support the Application, and to seek intervention in any appeal from an Acceptable Order as a
party in support of such order, all at no cost to Garwood. The City shall reimburse Garwood
for all reasonable and necessary costs incurred by Garwood in preparing, filing and pursuing
such an amendment and in assisting the Commission in defending any Acceptable Order against
challenges by others in the courts ("Reimbursable Application Costs"). Such costs shall include
all reasonable and necessary costs incurred by Garwood for all legal, engineering and other
assistance utilized by Garwood, as well as all expenses incurred by Garwood. Garwood shall
submit an itemized bill to the City for all Reimbursable Application Costs on a monthly basis,
and the City shall pay each bill within 30 days of receipt. Nothing in this Agreement shall
prohibit or restrict Garwood in any way or at any time from seeking whatever amendments to
Garwood's Water Right, and whatever modifications to Garwood's pumping facilities, canal
system, and low water dam, that Garwood may desire.
12. LCRA Agreement. By this Agreement, Garwood is not granting any option or
conveying any interest whatsoever in its LCRA Agreement. No interest in the LCRA
Agreement shall be deemed to be appurtenant to Corpus Christi's Right, or shall otherwise be
conveyed to the City with Corpus Christi's Right.
13. Tailwater from Garwood's Irrigation Operations. Garwood shall not be
required to maintain any flows into Lake Texana from any tailwater, surplus water or return
flow water whatsoever from Garwood's irrigation operations, and Garwood reserves the right
to maintain control of such waters and to use, reuse and consume them entirely for irrigation
purposes prior to their flowing from Garwood's service area, as such service area is defined by
Certificate of Adjudication No. 14-5434.
14. Water Quality. Garwood makes no representations whatsoever with respect to
the quality of water in the Colorado River, and it shall have no obligation whatsoever with
respect to the quality of such waters.
15. No Third Party Beneficiary. The parties are entering into this Agreement 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 and their successors and
assigns.
16. No Assignment. The City may not assign any of its rights or obligations under
this Agreement to any other person or entity without first obtaining Garwood's written consent,
which Garwood in its absolute discretion may withhold.
17. Source of Funds. Any payment required to be made by the City shall be paid
only from lawfully available funds; provided, however, before the City incurs any obligation
pursuant to this Agreement to make a particular payment to Garwood, the City shall take all
actions necessary to insure that sufficient funds are or will be lawfully available to make the
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payment by the date required under this Agreement. No Debt (hereinafter defined) is created
by the City by entering into this Agreement, and no Debt can be created by the City pursuant
to this Agreement unless and until the City fails to give Garwood written notice of termination
under Paragraph 8, below, before the Date of Conditional Exercise for any Order. "Debt"
means the term "debt" as such term is used in Art. 11, Sec. 5, Constitution of the State of
Texas.
18. Waiver. Any waiver at any time by either party with respect to a default or any
other matter arising in connection with this Agreement shall not be deemed a waiver with respect
to any subsequent default or matter.
19. Captions. The captions and headings appearing in this Agreement are inserted
merely to facilitate reference and shall have no bearing upon the interpretation thereof.
20. Notice. Each notice under this Agreement shall be mailed by certified mail,
return receipt requested, and shall be effective on the date actually received. All notices to the
City shall be addressed to:
Juan Garza
City Manager
City of Corpus Christi
City Hall
1201 Leopard
Corpus Christi, Texas 78401
and all notices to Garwood shall be addressed to:
William N. Lehrer
Chairman and Chief Executive Officer
Garwood Irrigation Company
P. O. Box 428
Garwood, Texas 77442
Either party may change its address by giving written notice of such change to the other party.
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IN WITNESS WHEREOF, this Agreement is executed on behalf of the City and
Garwood by their respective authorized officers, in multiple counterparts, each of which shall
constitute an original.
CITY OF CORPUS CHRISTI, TEXAS
ATTEST: By
City Secretary
Juan Garza
City Manager
GARWOOD IRRIGATION COMPANY
ATTEST: By
Secretary
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William N. Lehrer
Chairman and
Chief Executive Officer
STATE OF TEXAS §
COUNTY OF NUECES
§
§
BEFORE ME, the undersigned authority, on this day personally appeared Juan Garza,
City Manager of the City of Corpus Christi, Texas, known to me to be the person and officer
whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed
the same for the purposes and consideration therein expressed, and in the capacity therein stated,
and as the act and deed of said City of Corpus Christi, Texas as duly authorized by the City
Council of said City.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS THE _ day of
, 1994.
NOTARY PUBLIC STATE OF TEXAS
PRINTED NAME OF NOTARY
My Commission Expires:
12
STATE OF TEXAS §
COUNTY OF COLORADO
§
§
BEFORE ME, the undersigned authority, on this day personally appeared William N.
Lehrer, Chairman and Chief Executive Officer of Garwood Irrigation Company, known to me
to be the person and officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration therein
expressed, and in the capacity therein stated, and as the act and deed of said Garwood Irrigation
Company.
7
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS THE _ day of
, 1994.
NOTARY PUBLIC STATE OF TEXAS
PRINTED NAME OF NOTARY
My Commission Expires:
13
EXHIBITS
Exhibit 1 Form of conveyance conveying Corpus Christi's Right to the City.
Exhibit 2
Exhibit 3
Exhibit 4
Map defining Segment "A" of the Colorado River, on the reservoir
created by Garwood's low water dam.
Map defining Segment "B" of the Colorado River, upstream of the
reservoir created by Garwood's low water dam.
Map defining Segment "C" of the Colorado River, downstream of
Garwood's low water dam.
14
CONVEYANCE OF WATER RIGHT
STATE OF TEXAS §
COUNTY OF COLORADO
This Conveyance of Water Right (this "Conveyance") is made as of
19_, by GARWOOD IRRIGATION COMPANY ("Grantor"), to THE CITY OF CORPUS
CHRISTI ("Grantee").
This conveyance (this "Conveyance") is executed pursuant to the terms of that certain
Agreement between Grantee and Grantor, entered into as of the 22nd day of September, 1992,
as amended by Exercise of Option and Amendment of Agreement entered into as of the
day of , 1994 (such Agreement as so amended is hereafter referred
to as the "Agreement"). Pursuant to the terms of the Agreement, Corpus Christi's Right (as
defined in the Agreement) consisted of a 35,000 acre -foot -per -year portion of Garwood's Right
(as defined in the Agreement). Garwood's Right, as defined in the Agreement, is reflected by
Certificate of Adjudication No. 14-5434, issued by the Texas Water Commission on June 28,
1989, as amended by Certificate of Adjudication No. 14-5434A, issued by the Texas Water
Commission on March 18, 1993. A copy of those Certificates of Adjudication are attached
hereto as Exhibit A.
Pursuant to the terms of the Agreement, by instrument dated , 19_,
Grantor divided Garwood's Right into two portions. Under one portion, defined in the
Agreement as Corpus Christi's Right, Garwood [is or was] authorized to divert and use
EXHIBIT 1
Page 1 of 7
35,000 acre-feet of water per year from the Colorado River for [authorized purpose or purposes
of use'', at a rate of diversion not to exceed 150 cubic feet per second ("cfs"). Under the other
portion, defined in the Agreement as Garwood's Remaining Right, Garwood is authorized to
divert and use 133,000 acre-feet of water per year (such number of acre -feet -per -year is
hereinafter referred to as the "Acre -Feet Remaining") from the Colorado River for !authorized
purpose or purposes of use'', at a rate of diversion not to exceed 600 cfs. From and after the
date of such division of Garwood's Right, the Portion of Garwood's Right defined as Corpus
Christi's Right has been, and it now is, subordinate, in time priority and all other respects, to
the portion defined as Garwood's Remaining Right.
Pursuant to the terms of the Agreement, the Purchase Price (as defined in the Agreement)
for the purchase of Corpus Christi's Right is [35,000 acre-feet x the Per -Acre -Foot Price (as
defined in the Agreement)], the date that Grantee gave, or was deemed to have given, the Notice
of Purchase (as defined in the Agreement) was , 19_, [the Final Commission
Date (as defined in the Agreement) was , 19_, and the accrued interest on the
Purchase Price from the Final Commission Date to the date of payment of the Amount Due (as
defined in the Agreement), the Reimbursable Application Costs (as defined in the Agreement),
and the Amount Due, as of the date of this Conveyance, are f$ 1, f$ 1, and f$
1, respectively.]
[Pursuant to the terms of the Agreement and the notice given on
19_ by the City of Corpus Christi, Garwood submitted to the Commission (as defined in the
EXHIBIT 1
Page 2 of 7
Agreement) an application to amend Corpus Christi's Right (defined in the Agreement as the
"Application"). The Application [is pending before the Commission, or was [granted or denied
or dismissed] [in whole or in part] by the Commission by order dated , 19_
(the "Order")]. A copy of the Order is attached hereto as Exhibit B. The Order [became final
on , 19_, or has not yet become final], as such term is defined in the
Agreement.]
For and in consideration of the sum of 'the Amount Due] and other good and valuable
consideration to Grantor paid by Grantee, the receipt of which is hereby acknowledged, Grantor
does hereby grant, bargain, sell, convey and assign unto said Grantee, the Conveyed Water
Right (hereinafter defined). The "Conveyed Water Right," as conveyed hereby, is Corpus
Christi's Right as defined in the Agreement, [as such right is amended by the Order or as such
right may be amended by the Water Commission pursuant to the Application], [as such right was
modified by court order and/or is subject to judicial review], [together with all rights and obliga-
tions of Grantor in the Application or in any appeals from the Order pending as of the date of
this Conveyance], subject to the following limitations, conditions and restrictions:
1. The Conveyed Water Right, and the rights of Grantee and its successors -
in -interest in and to the Conveyed Water Right, are, and shall hereafter
continue to be, subordinate in time priority and all other respects to
Garwood's Remaining Right, and to the rights of Grantor and its
successors -in -interest in and to Garwood's Remaining Right.
EXHIBIT 1
Page 3 of 7
2. The Conveyed Water Right is not, and shall hereafter continue not to be,
appurtenant in any respect to any of the facilities authorized or existing
under Garwood's Right including, without limitation, Garwood's pumping
facilities, canal system, and low water dam. No interest in any lands or
any facility authorized or existing under Garwood's Right is hereby
conveyed to Grantee. Unless Grantor in its absolute discretion should
agree in writing otherwise, Grantee and its successors -in -interest are, and
hereafter shall continue to be, prohibited from:
a. diverting any water under the Conveyed Water Right from the
point of diversion on the Colorado River authorized under
Garwood's Right, utilizing Grantor's pumping facilities or other-
wise;
b. utilizing any portion of Grantor's canal system or other facilities
to convey any water diverted under the Conveyed Water Right;
and
c. interfering in any way with Garwood's Remaining Right or the use
or supply of water thereunder.
EXHIBIT 1
Page 4 of 7
TO HAVE AND TO HOLD, the Conveyed Water Right as conveyed herein, together
with all and singular the rights and appurtenances thereto in anywise belonging, except that
which is reserved to Grantor and except that which is inconsistent in any way with any of the
limitations, conditions and restrictions set forth in this Conveyance, unto the Grantee, its
successors and assigns forever; and Grantor does hereby bind itself and its successors and
assigns to warrant and forever defend the title to said Conveyed Water Right unto the said
Grantee, its successors and assigns, against all persons whomsoever lawfully claiming or to
claim the same or any part thereof, by, through or under it, said Grantor.
Executed this _ day of , 19_.
ATTEST:
GARWOOD IRRIGATION COMPANY
By:
EXHIBIT 1
Page 5 of 7
STATE OF TEXAS §
COUNTY OF COLORADO
§
§
BEFORE ME, the undersigned authority, on this day personally appeared
of Garwood Irrigation Company,
known to me to be the person and officer whose name is subscribed to the foregoing instrument,
and acknowledged to me that he executed the same for the purposes and consideration therein
expressed, and in the capacity therein stated, and as the act and deed of said Garwood Irrigation
Company.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS THE _ day of
, 19
NOTARY PUBLIC STATE OF TEXAS
PRINTED NAME OF NOTARY
My Commission Expires:
EXHIBIT 1
Page 6 of 7
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Corpus Christi, Texas
22. day of
kbrifvt , 19 Rif
The above resolution was passed by the following vote:
Mary Rhodes
Dr. Jack Best
Melody Cooper
Cezar Galindo
Betty Jean Longoria
Edward A. Martin
Dr. David McNichols
David Noyola
Clif Moss
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