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2010-111 RES CITY MANAGER TO EXECUTE SUPPLEMENTAL AGREEMENT FOR WATER RIGHTS TO PAT MAYSE RESERVOIRRESOLUTION NO. 2010-111 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A SUPPLEMENTAL AGREEMENT WITH THE U.S. GOVERNMENT FOR WATER RIGHTS TO THE PAT MAYSE RESERVOIR; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Paris has entered into several water contracts with the U.S. Corps of Engineers for water rights at the Pat Mayse Reservoir, Lamar County, Texas; and, WHEREAS, on February 26, 2007, in Resolution No. 2007-030, the City Council authorized the City Manager to propose a cash settlement to prepay the Pat Mayse Reservoir Purchase Contract for Water Rights in the amount of $3,461,432.00; and, WHEREAS, the U.S. Congress approved the prepayment proposal in November 2007 as part of the Water Resources Development Act ("WRDA"); and, WHEREAS, a proposed Supplemental Agreement No. 2 was received by the City from the U.S. Corps of Engineers, attached hereto as Exhibit A; and, WHEREAS, by executing this Supplemental Agreement No. 2, the City of Paris will have paid, in full, its obligation regarding the water rights in Pat Mayse Reservoir; and, WHEREAS, the U.S. Corps of Engineers has also agreed to refund the Ciry of Paris $149,484.03 for the principal and A of payments thehCity'sy accwas eptancelrof make between the passage of the WRD supplemental agreement; and, WHEREAS, the City has the funds needed to make said payment held in reserve for this purpose and is prepared to make said payment upon approval of the Supplemental Agreement No. 2 by the City Council; and, WHEREAS, the City will be required to continue to pay its share of actual0&M costs at the Lake estimated to be $70,000 to $100,000 annually; and WHEREAS, it would be in the best interest of the City of Paris and its citizens to authorize the City Manager to make a S settlement attachedshereto and i corporat d Engineers in the form of the Supplementa1 Agment herein as Exhibit A to fulfill the City's obligation under these water contracts; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS: Section 1. That the findings set out in the preamble to this resolution are hereby in all things approved. Section 2. That the terms and conditions of the Supplemental Agreement No. 2 attached hereto as Exhibit A is in the best interest of the City of Paris and its citizens and is in all things approved, and the City Manager of the City of Paris is hereby authorized to execute said Supplemental Agreement No. 2 on behalf of the City of Paris. Section 3. That this resolution shall be effective immediately upon passage. PASSED AND APPROVED this 25th day of October, 2010. ill Biard, Mayor 4 ATTEST: , a ice Ellis, City Clerk APPROVED AS TO FORM: W. Kent Mc a Cit ttorney DA-34-066-CIVENG-65-1272 SUPPLEMENTAL AGREEMENT NO. 2 SUPPLEMENTAL AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND CITY OF PARIS, PARIS, TEXAS FOR WATER STORAGE SPACE IN PAT MAYSE LAKE, TEXAS THIS SUPPLMENTAL AGREEMENT, is entered into this day of 201 by and between THE UNITED STATES execut ng "Government") OF AMERICA (hereinafter called represented by the agreement, and the CITY OF PARIS, PARIS, TEXAS (hereinafter called the "City") for storage space in Pat Mayse Lake, Texas (hereinafter called the "Project"); WITNESSETH THAT: the WHEREAS, on the 15th daY °f T ebas ar entered into Government and the City of Paris, eet Contract No. DA-34n0 Pat MaN 6Lake7as far sourceoof Cpresent of storage space 1 Yse municipal and industrial water supply for the City; and, WHEREAS, Contract No. DA-34-066-CIVENG-65-1272 also recognized that the City desired to utilize an additional 87,700 acre-feet of storage space in Pat Mayse Lake pa~sa source of future municipal and industrial water su 1y• and, VJHEREAS, on 15th day of June 1978, the Government and the City of Paris, Texas, entered into Supplemental Agreement No. 1 to contract No. DA-34-066-CIVENG-65-1272 for the 87,700 acre-feet of additional storage space in Pat Mayse Lake; and, WHEREAS, Supplemental Agreement No. 1 provided the City with the right to utilize an additional 21,900 acre- feet of storage space as a source of present use and 65,800 acre-feet as a source of future use water storage; and, EXHrBIT.L WHEREAS, the Water Resources Development Act of 2007, Section 3152, Pat Mayse Lake Texas, directed the Secretary of the Army to accept from the city of Paris, Texas, $3,461,432 as payment in full of monies owed to the United States for water supply storage space in Pat Mayse Lake, Texas, under contract number DA-34-066-CIVENG-65-1272, including accrued interest. NOW, THEREFORE, said contract is hereby modified in the following particulars but in no others: ITEM l: Article la, as amended by Supplemental Agreement No. l, and Articles 1.e, l.f, and 10 are deleted in their entirety and the following substituted therefore: ARTICLE 1- Water Storage Space. a. Project Construction. The Government, subject to the directions of Federal law and any limitations imposed thereby, has designed and constructed the Project so as to include therein space for the storage of water by the City. b. Rights of City. (1). The City shall have the right to utilize an undivided 100 percent of the usable conservation storage space in the Project between elevations 451.0 feet and 415.0 feet above National Geodetic Vertical Datum, which is estimated to contain 109,600 acre-feet after adjustment for sediment deposits. This storage space is to be used to impound water for present demand or need for municipal and industrial water supply. (2) . The City shall have the right to withdraw water from the lake, or to request releases to be made by the Government through the outlet works of the Project, subject to the provisions of Article lc and to the extent the aforesaid storage space will provide; and shall have the right to construct all such works, plants, pipelines, and appurtenances as may be necessary and convenient for the purpose of diversion or withdrawals, subject to the approval of the District Engineer as to design and location. The grant of an easement for right-of-way, across, in and upon land of the Government at the Project shall be by a separate instrument in a form satisfactory to the Secretary of the Army, in accordance with ER 405-1-12, under the authority of and in accordance with the 2 provisions of 10 U.S.C. 2669 and such other authorities as may be necessary. Subject to the conditions of such easement, the User shall have the right to use so much of the Project land as may reasonably be required in the exercise of the rights and privileges granted under this agreement. c. Rights Reserved. The Government reserves the right to control and use all storage in the Project in accordance with authorized Project purposes. The Government further reserves the right to take such measures as may be necessary in the operation of the Project to preserve life and/or property, including the right not to make downstream releases during such periods of time as are deemed necessary, in its sole discretion, to inspect, maintain, or repair the Project. d. Quality or Availability of Water. The User recognizes that this agreement provides storage space for raw water only. The Government makes no representations with respect to the quality or availability of water and assumes no responsibility therefor, or for the treatment of the water. e. Sedimentation Surveys. (1). Sedimentation surveys will be made by the District Engineer during the term of this agreement at intervals not to exceed fifteen (15) years unless the District Engineer determines that such surveys are unnecessary. When, in the opinion of the District Engineer, the findings of such survey indicate any Project purpose will be affected by unanticipated sedimentation distribution, there shall be an equitable redistribution of the sediment reserve storage space among the purposes served by the Project including municipal and industrial water supply. The total available remaining storage space in the Project will then be divided among the various Project features in the same ratio as was initially utilized. Adjusted pool elevations will be rounded to the nearest one-half foot. Such findings and the storage space allocated to municipal and industrial water supply shall be defined and described as an exhibit, which will be made a part of this agreement and the water control manual will be modified accordingly. 3 (2). The Government assumes no responsibility for deviations from estimated rates of sedimentation, or the distribution thereof. Such deviations may cause unequal distribution of sediment reserve storage greater than estimated, and/or encroachment on the total storage at the Project. ITEM 2: Article 5, as amended by Supplemental Agreement No. 1, is deleted in its entirety and the following substituted therefore: "ARTICLE 5- PAYMENTS. In consideration of the right to utilize the aforesaid storage space in the Project for municipal and industrial water supply purposes, the City shall pay the following sums to the Government: a. Project First Cost. In accordance with Section 3152 of the Water Resources Development Act of 2007 (wRDA 2007), the Secretary of the Army is directed to accept payment from the City and the City shall repay to the Government in a lump sum payment a total of $3,461,432 which reflects payment in full of monies owed to the United States for 100 percent of the total storage space in the Project between elevations 451.0 and 415.0 above National Geodetic Vertical Datum, which total storage space is estimated to contain 109,600 acre- feet of water supply storage space in Pat Mayse Lake, Texas, after adjustments for sediment deposits under water storage contract DA-34-066-CIVENG-65-1272. The payment shall be due and payable within 30 days after the City is notified by the District Engineer of approval of this Supplemental Agreement. A copy of Section 3152 of WRDA 07 is attached to and made a part of this supplemental agreement as Exhibit E. b. Repair, Rehabilitation, and Replacement (RR&R) Costs. The City will be required to pay 10.526 percent of the cost of joint-use RR&R of Project features. Payment of these costs shall be made either incrementally during construction or in lump sum (including interest during construction at the rate as determined in Section 932 of the Water Resources Development Act of 1986) upon completion of construction. c. Annual Operation and Maintenance (O&M) Expense. The City will be required to pay 23.659 percent of the 4 annual experienced joint-use O&M expense of the Project. Payments for 0&M expense are due and payable in advance on the date for payment of Project first cost as set forth in Article 5a(2) and shall be based on O&M expense for the Project in the Government fiscal year most recently ended. The amount of each annual payment will be the actual experienced 0&M expense (allocated joint-use) for the preceding fiscal year or an estimate thereof when actual expense information is not available. d. Delinquent Payments. If the User shall fail to make any of the payments when due, then the overdue payments shall bear interest compounded annually until paid. The interest rate to be used for overdue payments due under the provisions of Articles 5a, 5b, and 5c above shall be that determined by the Department of Treasury's Treasury Fiscal Requirements Manual (1 TFRM 6-8000, "Cash Management"). The amount charged on payments overdue for a period of less than one year shall be figured on a monthly basis. This provision shall not be construed as giving the City a choice of either making payments when due or paying interest, nor shall it be construed as waiving any other rights of the Government, at law or in equity, which might result from any default by the City. ITEM 3: No Change to Article 11 in Supplemental Agreement No. l. ITEM 4: No Change to Articles 15, 16, 17 or 18 in Supplemental Agreement No. 1 ITEM 5: Exhibits A, B and C of the Supplemental Agreement No. 1 are deleted in their entirety and substituted therefore with: Exhibit A: Certification and Exhibit B is substituted to reflect reservoir storage, allocation of actual cost and the lump sum payment of the total 109,600 acre-feet of water supply storage, plus the total percentage and amount of the variable annual joint-use O&M costs associated with this storage as well as the total percentage and amount of any associated RR&R costs. ITEM 6: No Change to Article 7c in Supplemental Agreement No. 1. EXCEPT as herein modified, all the terms and conditions of said agreement and Supplemental Agreement No. 1 sha11 remain unchanged and in full force and effect. 5 IN WITNESS WHEREOF, the parties have executed this Supplemental Agreement No. 2 as of the day and year first above written. THE UNITED STATES OF AMERICA CITY OF PARIS, TEXAS Michael J. Teague Colonel, U.S. Army District Commander Date: KEVIN CARRUTH City Manager Date: 6 EXHIBIT A CERTIFICATION I, Kent McIlyar, Attorney for the City of Paris, Texas, have reviewed the foregoing agreement executed by Kevin Carruth, City Manager, and as principal legal officer of/for the City of Paris, Texas, certify that the City of Paris, Texas, is legally and financially capable of entering into the contractual obligations contained in the foregoing agreement and that, upon acceptance by the United State of America, it will be legally enforceable. Given under my hand, this $''~ay of 2010. KENT McI City Attorney City of Paris, Texas 7 EXHIBIT B I - RESERVOIR STORAGE Feature Flood Control Water Supply City of Paris TOTAL ( f t NGVD ) Elevation 460.5-451.0 451.0-415.0 Percent of Usable water Supply Storage(1) Storage (ac-ft) 64,500 109,600 100.00 109,600 100.00 174,100 (1) Storage remaining after 100 years of sedimentation, beginning from the date the Project became operational, 1 October 1967. II - ALLOCATION OF ACTUAL COST (2) Flood Control $1,562,775 Water Supply Storage 3,093,407 Conduit 7,000 Recreation 4,601,906 Fish and Wildlife 82,328 TOTAL $9,347,416 (2) Excludes $105,000 non-reimbursable costs for relocation of roads above replacement-in-kind standards. Includes $251,334 for the value of Federally owned lands. Total cost of Project is $9,452,416. 8 EXHIBIT B (Con't) III - COST TO BE REPAID BY THE CITY FOR WATER SUPPLY STORAGE SPACE Total Cost of Storage Space No. 1 Cost of 21,900 acre feet of water supply storage (20.00o x $3,093,407) Interest during construction (20.0001 x $116,127) Investment Cost Less credit for principal payments made under Contract No. DA-34-066-CIVENG-65-1271 and the Supplement Agreement No. 1 thru April 2005 Principal payoff on Space No. 1 Space No. 2 Cost of 21,900 acre-feet of water supply storage (20.00o x $3,093,407) Interest during construction (20.00o x $116,127) Investment Cost Interest accrued from 30 Sep 1977 (end of 10-year interest free period) Storage Space No. 2 cost Less credit for principal payments made under Contract No. DA-34-066-CIVENG-65-1271 and the Supplement Agreement No. 1 thru April 2005 Principal payoff on Space No. 2 $ 618,681.00 23,225.00 $ 641,906.00 -398,875.06 $ 243,030.94 $ 618,681.00 23.225.00 $ 641,906.00 10,068.00 $ 651,974.00 -255,619.31 $ 396,354.69 9 EXHIBIT B (Cont) FUTURE USE STOR.AGE Cost OF 65,800 acre-feet of water supply storage (60.OOo x $3,093,407) $1,856,045.00 Interest during construction (60.OOo x $116,127) 69,677.00 Sub-Total Future Use Storage $1,925,722.00 Total Storage Cost Space No. 1 $ 243,030.94 Space No. 2 396,354.69 Future Use $ 1,925,722.00 SUBTOTAL STOR.AGE COST $ 2,565,107.63 Simple interest at 3.1370 Thru 4-5-2005 1,588,276.95 TOTAL SPACE 1, 2 AND FUTURE OWED THROUGH 4 -5-2005 $ 4,153,384.58 Simple interest at 3.1370 Thru 4-1-2017 1,628,646.00 TOTAL AMOUNT OWED ON ALL STORAGE SPACE THROUGH END OF CONTRACT AGREEMENT DATE OF 4-1-2017 $ 5,782,030.58 Present Value of Storage assuming the average Value of money over the next 12 years at 50 And total amount owed by city of Paris, Texas For all storage space in Pat Mayse Lake as Provided for in Section 3152 of the Water Resources Development Act of 2007 $ 3,461,432.00 10 EXHIBIT B (Cont) IV - ANNUAL COSTS TO CITY FOR USE OF WATER SUPPLY STORAGE SPACES NO. l, 2 AND FUTURE Operation and Maintenance (3) Joint Use 23.6590 (4) x $362,044.22 (FY 09) _ Repair, Rehabilitation, and Replacement (5) Joint Use 10.5260 (6) x $ 0 (FY 09) _ TOTAL ESTIMATED ANNUAL COST $ 85,656.04 $ 0 $ 85,656.04 (3) Payments due and payable on the date specified in Article 5c (4) Percent of Project joint-use operation and maintenance cost allocated to water supply (5) Repair, rehabilitation and replacement costs are payable only when incurred as specified in Article 5b (6) Percent of Project joint-use repair, replacement cost allocated to water supply rehabilitation and 11 EXHIBIT E SECTION 3152. PAT MAYSE LAKE, TEXAS The Secretary is directed to accept from the city of Paris, Texas, $3,461,432 as payment in full of monies owed to the United States for water supply storage space in Pat Mayse Lake, Texas, under contract number DA-34-066-CIVENG- 65-1272, included accrued interest. 12