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HomeMy WebLinkAboutResolution - 2022-R0158 - Treated Effluent Supply Contract with Leprino Foods Company 3.22.22Resolution No. 2022-RO158 Item No. 8.11 March 22, 2022 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Treated Effluent Supply Contract, by and between the City of Lubbock and Leprino Foods Company, of Denver, Colorado, and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on ATTEST: Reb cca arza, City Secre Ury APPROVED AS TO CONTENT: W. Jandt Atkinson, City Manager APPROVED AS TO FORM: Amy L. S' s, Deputy Ci ey RES.Treated Effluent Supply Contract-Leprino March 22, 2022 DANIEL M. POPE, MAYOR Resolution No. 2022-RO158 TREATED EFFLUENT SUPPLY CONTRACT This agreement is made this 22ndday of March , 2022 by and between the City of Lubbock, Texas, a Texas home -rule municipal corporation ("City") and Leprino Foods Company, a corporation incorporated under the laws of Colorado ("Seller"). WHEREAS, City owns and operates a water utility and desires to procure additional water sources in order to continue providing water for its citizens; and WHEREAS, the Seller will own and operate a facility located at 4301 East 191 Street, Lubbock, TX 79403 and 4502 East 4" Street, Lubbock, TX 79403 (the "Facility") that will utilize water supplied by the City and is contemplated to produce a significant amount of reclaimed water per day as a byproduct of its processes (the "Reclaimed Water"). The Reclaimed Water is generated when water is separated from the various constituents of milk, resulting in the Facility's discharge of substantially more water than it takes in from municipal or other sources and WHEREAS, after utilizing water supplied by the City and the Reclaimed Water for production purposes, including cleaning, and other manufacturing processes, the Company intends to treat all of the commingled water consisting of City supplied water and Reclaimed Water to stream quality as that term is defined by the Texas Commission on Environmental Quality (the "TCEQ") in any future Texas Pollutant Discharge Elimination System ("TPDES") Permit that the Company obtains for the release of such treated waste water (collectively, the "Treated Effluent") into the Brazos River Basin; and WHEREAS, the City desires to purchase rights to the Treated Effluent in order to utilize for beneficial purposes; and WHEREAS, Seller desires to sell to City the Treated Effluent produced by the Facility. NOW THEREFORE, in consideration of the mutual covenants herein contained, City and Seller hereby mutually agree to the following: ARTICLE I. SALE AND DELIVERY OF TREATED EFFLUENT 1.1 From and after the effective date of this agreement, specified in Paragraph 1.13, City will have the exclusive right and obligation to purchase the Treated Effluent from Seller's Facility, in Lubbock County, Texas, at a point (the "Delivery Point") which shall be mutually agreed upon by the Parties. 1.2 Seller shall own and be responsible for the construction of any and all facilities necessary to deliver the Treated Effluent to the Delivery Point. 1.3 Commencing on the Delivery Date and continuing thereafter during the Term, Seller shall make available for transfer to City all of the discharged Treated Effluent, unless a lesser amount is agreed to by the Parties in writing or pursuant to the protocols that the Parties may agree in writing,. The Treated Effluent shall be delivered at a quality materially consistent with the description in the Seller's TPDES permit at the Point of Delivery; provided, however, that the quality may exceed or the volume may be less than the criteria or limits set forth in the TPDES permit. City shall have exclusive right to all of the Treated Effluent produced by the Facility. 1.4 Prior to the Delivery Date, Seller, including its officers, employees, agents, and representatives, shall provide reasonable access to the City of any and all records related to the Treated Effluent, including, but not limited to, all permitting and operational records for the Facility and provide requested information and necessary consents as required for any permits or authorization required by any regulating authorities, such as the United States Environmental Protection Agency ("EPA") or the Texas Commission on Environmental Quality (" FCEQ"), necessary for sale and delivery of Treated Effluent by and from the Seller to the City; 1.5 Seller agrees and warrants that it shall: (a) Exercise best efforts to have obtained, and shall have and maintain in place during the Term, any authorization or permits required from the TCEQ for the discharge of the Treated Effluent; (b) Provided that City is in compliance with this agreement, not directly or indirectly solicit, initiate, or participate in discussions or negotiations, or enter into any agreement with any person, company or entity, other than City concerning any transaction related to the Treated Effluent; and (c) To continuously operate and maintain the Facility in accordance with good business and engineering practices and regulatory requirements, meeting the effluent quality limits and any authorization or permits needed for delivering the Treated Effluent in accordance with the quality set forth in Seller's TPDES permit. (d) In the event the quality of the Treated Effluent falls below the established parameters for the quality set forth in Seller's TPDES permit and City is unable to accept the Treated Effluent as a result and/or delivery of the Treated Effluent is prohibited by TCEQ, then delivery to the Point of Delivery will be suspended for such time as is needed for the Treated Effluent quality to be returned to acceptable quality parameters and Seller agrees to use best efforts in restoring such deliveries. Seller agrees to operate the process based on generally recognized and acceptable practices to prevent and/or remediate such occurrences. In instances wherein Seller is unable to meet the established parameters for the quality set forth in Seller's TPDES permit, the Seller may divert the flow of the Treated Effluent to the City's sanitary sewer system. However, in such instances, Seller shall be obligated to pay the sanitary sewer rates as established by the City Council by ordinance. (e) Seller commits to continuously operate and maintain the wastewater treatment system of the Facility in accordance with good business and engineering practices and regulatory requirements. Notwithstanding the foregoing, should Seller, in its reasonable judgment, determine that due to mechanical failure, required maintenance or repair, regulatory action, water quality falls below that set forth in Seller's TPDES permit, or other events (including a Force Majeure Event) that interrupts the production and/or delivery of Treated Effluent, it will be unable to meet the requirements of this agreement (including any appropriate cure periods), Seller shall 0 immediately give written notice to City detailing the reason for the interruption in delivery of Treated Effluent to the Point of Delivery and the estimated time to remedy the interruption. Seller shall use reasonable and good faith efforts to correct any impediment preventing delivery of Treated Effluent, including committing necessary resources to complete maintenance and repairs and/or rectify any suspensions due to regulatory issues. 1.6 City agrees to follow all applicable TCEQ regulations and procedures required of it in performance of this Agreement as a user of the Treated Effluent. 1.7 City shall be responsible for any facilities necessary to accept delivery of the Treated Effluent at the Delivery Point. 1.8 City will be ready and able to accept delivery of the Treated Effluent on or before January 1, 2024 and City shall provide written notice to Seller when it is first prepared to accept delivery of Treated Effluent ("Delivery Date"). Notwithstanding the foregoing, Seller shall have no obligation to deliver Treated Effluent to the City until Seller's facility is commissioned, operational, and processing milk. In addition, the Delivery Date shall have no impact on Seller's ability to discharge Treated Effluent so long as Seller has TCEQ authorization to do so. 1.9 The Parties acknowledge and agree that (a) Seller, City and their respective officers, employees and contractors shall at all times be independent contractors and not employees, officers, or servants of each other, that the doctrine of respondeat superior shall not apply as between City and Seller and that City and Seller do not have the right to control the means, methods, or details of each other's work, (b) City and Seller each shall be responsible for the acts and omissions of its employees, officers, servants, agents, contractors and subcontractors, (c) nothing herein shall be construed as creating a partnership or joint enterprise between City and Seller, and (d) nothing in this Agreement shall be construed as creating a "Community of Pecuniary Interest" or "An Equal Right of Control" which would give rise to vicarious liability. 1.10 The Parties will cooperate and provide the other such documentation or information as may be reasonably required for each to comply with their respective obligations under any requirement of law, including but not limited to any 210 Authorization or TPDS Permit with respect to the Treated Effluent provided hereunder. 1.11 City and Seller shall each comply with any Requirement of Law and all applicable rules and regulations of the Texas Department of State Health Services, TCEQ, and any other Governmental Authority that has jurisdiction over the operations which are the subject of this Agreement. 1.12 The Parties agree that they shall execute the following Agreements which are attached hereto: 1) Street Use License, which is attached as Exhibit C. 2) Emergency Pipeline Repair Agreement, which is attached as Exhibit D. 1.13 This Agreement shall be effective upon its execution by both parties (the "Effective Date). 3 ARTICLE II FEES AND PAYMENT 2.1 The charges by Seller to City for the sale of the Treated Effluent (the "Fees") are as set forth on the fee schedule attached hereto as Exhibit A. The Parties acknowledge that the Fees are (a) just and reasonable, (b) not unreasonably preferential, prejudicial, or discriminatory, and (c) sufficient, equitable, and consistent in application. 2.2 City's obligation to pay for Treated Effluent under this Agreement shall commence upon the Delivery Date. City shall read the meter monthly and submit those amounts monthly for Treated Effluent actually provided at the Delivery Point and taken by City during the prior month and City shall pay Seller for properly due amounts within thirty (30) days of the invoice date. 2.3 City shall furnish and install the master meter for properly measuring and recording the quantity of Treated Effluent delivered to City (the "Master Meter"). City shall operate, maintain and repair the Master Meter. City shall retain title and ownership of the Master Meter. 2.4 The properly authorized officers, agents and representatives of Seller shall have access to the Master Meter, and all other facilities of City associated with this Agreement during regular business hours when accompanied by City's operator. 2.5 Seller may install, at its own cost, a check meter at a location agreed upon by the Parties ("Check Meter"), which Check Meter, if so installed, shall be tested and calibrated for accuracy once every twelve (12) months. City shall have the right to inspect and test any such Check Meter during regular business hours when accompanied by Seller's operator. Seller shall operate, maintain and repair any such Check Meter. 2.6 After a Master Meter becomes operational, City shall test the Master Meter for accuracy at least once each twelve (12) month period, with such periods commencing on the Delivery Date and then each twelve (12) months thereafter, and shall promptly provide written copies of results of such tests to Seller upon Seller's written request. In the event that the percentage of accuracy of the Master Meter is found to be within the tolerance of five percent (5%), the Master Meter shall be deemed to have correctly measured the quantity of Treated Effluent taken under this Agreement. Seller shall have the right to be present when such testing is conducted or any adjustments are made. If, however, upon any test by City of the percentage of accuracy tolerance, such tolerance is found to be in excess of five percent (5%), then such meter shall be adjusted promptly to register correctly and accurately, and the amount paid by City to Seller for the three (3) month period immediately preceding such test shall be adjusted in accordance with the percentage of inaccuracies found by such test, resulting in a "true up" of either a refund to City by the Seller or a payment from City to Seller. Notwithstanding the foregoing, City or Seller shall have the right to independently test the accuracy of the Master Meter at any time upon five (5) Business Day's prior written notice to the other Party. The non -testing Party may elect to be present during any independent test of the Master Meter. 2.7 In the event the Master Meter equipment is out of service or out of repair, and Seller has not installed a Check Meter, and the amount of Treated Effluent taken cannot be ascertained or 4 computed by reading the Master Meter, the amount of Treated Effluent taken during this period shall be estimated by City based upon the amount of Treated Effluent delivered during the preceding weeks and/or other mutually agreed means that replicate the amount of Treated Effluent delivered, and adjusted for current conditions at the Parties' mutual agreement and in accordance with the Seller's TPDES discharge permit. If the Master Meter malfunctions and Seller has installed a Check Meter, the Parties will agree to use the volume measured by the Check Meter, following a meter inspection and test as provided in Section 2.6 determining that the Check Meter is properly functioning, until the proper function of the Master Meter is restored. 2.8 The Parties hereby acknowledge that the possession, ownership of, title to, and risk of loss of the Treated Effluent is and shall remain vested in Seller until it reaches the Delivery Point. After City accepts delivery of the Treated Effluent at the Delivery Point, possession, ownership of, title to, and risk of loss shall vest in City. ARTICLE III DEFAULT 3.1 In the event City defaults under any material provision of this Agreement ( "City Default"), Seller shall have the right to terminate this Agreement if City has not cured the default within ninety (90) days following receipt of written notice from Seller and there is no Seller Default. 3.2 In the event Seller defaults under any material provision of this Agreement ( "Seller Default"), City shall have the right to terminate this Agreement if Seller has not cured the default within ninety (90) days following receipt of written notice from City, or in the case of a default that cannot be cured within such ninety (90) days, where Seller is not exercising due diligence and taking reasonable steps to address any condition that is causing the default, and there is no City Default. City's remedies in the event of a Seller Default are not limited to this provision, but include all remedies available to it under law or equity, including without limitation, bringing an action for specific performance, injunctive relief, damages, and mandamus and other remedies available to it under law, equity, and this Agreement. ARTICLE IV. TERM 4.1 The Term under the Agreement is for a period of fifty (50) years, which shall begin on the Delivery Date. 4.2 Beginning on or after the Delivery Date, City shall have the option of terminating this Agreement, provided City gives Seller five (5) years' written notice of its intention to terminate this Agreement. ARTICLE V. FORCE MAJEURE 5.1 The term "Force Majeure" shall mean those situations or conditions that are beyond the 5 control of the Parties and which, after the exercise of due diligence to remedy such situation or condition, render Seller or City unable, in whole or part, to carry out the covenants contained herein and include the following: (a) acts of God, including excessive snow or ice, tornado, lightning, power outages, storms, biological upsets, or the exercise of the power of eminent domain, (b) strikes, lockouts, acts of the public enemy, war, terrorism, insurrections, riots, epidemic, breakage or damage to equipment or explosions, (c) administrative, judicial or other orders or restraints of the Government of the United States of America or the State of Texas or a change in any Requirement of Law to the extent that either has a material effect on the obligations in this Agreement, (d) underground or latent conditions not known by either Party prior to the date of this Agreement that have a material effect on the obligations in this Agreement, (e) any denial of an application for or a delay in the review, issuance or renewal of, or the suspension, termination or interruption of, any necessary permit or other governmental consent required to perform the duties hereunder or to deliver or receive the Treated Effluent as contemplated herein, and (f) interruption of the supply of milk to the facility, either as a result of an act of God as described above, or as a result of such milk becoming commercially impossible to procure at the facility. Notwithstanding anything herein to the contrary, Force Majeure events do not include occurrences to the extent they result in whole or in part, from the intentional acts, failure to act, or negligence of Seller or City or their respective employees, agents, contractors or subcontractors. 5.2 The Affected Party shall give prompt notice to the other Party of any event or circumstance of Force Majeure as soon as reasonably practicable after becoming aware of such event or circumstance. Each notice served by an Affected Party to the other Party pursuant to this Section 5.1 shall specify the event or circumstance of Force Majeure in respect of which the Affected Party is claiming relief. 5.3 The Affected Party shall, by reason of any event or circumstance of Force Majeure in respect of which it has claimed relief under this Article V: (a) use its best efforts to mitigate the effects of such Force Majeure and to remedy any inability to perform its obligations hereunder due to such event or circumstance as promptly as reasonably practicable; (b) resume the performance of its obligations under this Agreement as soon as is reasonably practicable after the event or circumstance of Force Majeure is remedied or such event or circumstance, or the effect thereof on the Affected Party, ceases to exist. 5.4 When the Affected Party is able, or would have been able if it had complied with its obligations under this Article V, to resume the performance of any or all of its obligations under this Agreement affected by the occurrence of an event or circumstance of Force Majeure, then the period of Force Majeure relating to such event or circumstance shall be deemed to have ended. 5.5 Except as provided in Section 5.3 of this Agreement, provided it has complied with its obligations under Section 5.2, the Affected Party shall be relieved from any liability for the non- 0 performance of its obligations under this Agreement where and to the extent that such non- performance is attributable directly to the event or circumstance of Force Majeure asserted. ARTICLE VI INSURANCE 6.1 During the Term, each Party will procure and maintain or self -insure, or cause to be procured and maintained those coverages as outlined in Exhibit B attached hereto and made part of this Agreement. 6.2 Seller shall require any and all of its contractors accessing City property pursuant to this Agreement to procure and maintain insurance policies and coverages in accordance with the terms of this Agreement, but with policy limits commensurate with the services provided. With respect to the policies and coverages required herein, Seller shall use best efforts to ensure that (a) City is named as an additional insured under such policies (except for Worker's Compensation); and (b) certificates of insurance or copies thereof are provided to City prior to the commencement of any activities and are maintained throughout such activities. 6.3 All insurance policies required in this Agreement shall be with insurers and forms of policies (including with respect to the deductibles or retentions) reasonably satisfactory to City. Any insurers shall have minimum rating of "A- (VII)" from A.M. Best or such other rating as may be reasonably acceptable to the Parties or for City. To the extent of the risks and liabilities assumed by the insuring Party under the Agreement, all insurance policies except for Worker's Compensation shall be endorsed to name the City of Lubbock as "additional insured" on a primary and non-contributory basis, and shall waive subrogation in favor of the City of Lubbock. All Parties shall cause original, duly executed Certificates of Insurance to be furnished evidencing the insurance required hereunder and at each anniversary of coverage thereafter. Each Party shall provide the other with thirty (30) days prior written notice of any material change or cancellation of any of the insurance policies required under this Agreement. 6.4 The amounts of insurance delineated in Exhibit B shall be the minimum insurance requirements and nothing contained therein shall serve in any way to limit or waive the Parties' indemnity obligations under this Agreement. Further, irrespective of the minimum insurance requirements specified herein, the insolvency, bankruptcy, or failure of any of the Parties' insurers, or failure of any such insurer to pay claims accruing, shall not affect, negate, or waive any of the provisions of this Agreement. 6.5 The provisions of this Article VI shall survive the termination or expiration of this Agreement. 6.6 SELLER SHALL INDEMNIFY AND SAVE HARMLESS THE CITY OF LUBBOCK AND ITS ELECTED OFFICIALS, OFFICERS, AGENTS, AND EMPLOYEES FROM ALL SUITS, ACTIONS, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY KIND, CHARACTER, TYPE, OR DESCRIPTION, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL EXPENSES OF LITIGATION, COURT COSTS, 7 AND ATTORNEY'S FEES, FOR INJURY OR DEATH TO ANY PERSON, OR INJURY TO ANY PROPERTY, RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, TO THE EXTENT ARISING OUT OF, RELATED TO OR OCCASIONED BY, THE NEGLIGENT ACTS OF SELLER, ITS AGENTS, EMPLOYEES, AND/OR SUBCONTRACTORS, RELATED TO THE PERFORMANCE, OPERATIONS OR OMISSIONS UNDER THIS AGREEMENT AND/OR THE USE OR OCCUPATION OF CITY OWNED PROPERTY. THE INDEMNITY OBLIGATION PROVIDED HEREIN SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. ARTICLE VII MISCELLANEOUS 7.1 PARTIAL INVALIDITY In the event one or more of the provisions contained in this Agreement shall be invalid, illegal, or unenforceable in any respect under any law, rule or regulation, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. 7.2 NO ASSIGNMENT All promises, undertakings, agreements, covenants and contracts herein contained by or on behalf of either City or the Seller shall bind the successors and permitted assigns of either party, whether so expressed or not; but neither City nor the Seller shall have the right to assign under this Agreement, without the written consent of the other party. 7.3 THIRD PARTY BENEFICIARIES Nothing in this Agreement, express or implied, is intended to confer upon any person or entity, other than the Parties, any rights, benefits, or remedies under or by reason of this Agreement. 7.4 ENTIRE AGREEMENT This Agreement contains the entire agreement of the Parties regarding the subject matter hereof, and supersedes all prior or contemporaneous understandings or representations, whether oral or written, regarding the subject matter. 7.5 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 hereof. 7.6 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 F form of business organization or arrangement between the Parties, except for the contractual arrangements specifically set forth in this Agreement. No Party shall have any power to assume or create any obligation on behalf of the other Party except for the contractual arrangements set forth herein. 7.7 AMENDMENTS Any amendment of this Agreement must be in writing and will be effective if it is signed by the authorized representatives of the Parties. 7.8 APPLICABLE LAW AND VENUE; ATTORNEY'S FEES THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THIS AGREEMENT IS PERFORMABLE IN LUBBOCK COUNTY, TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF COMPETENT JURISDICTION OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. IN THE EVENT THAT ANY SUIT, ACTION, OR PROCEEDING IS BROUGHT TO ENFORCE THIS AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY, IN ADDITION TO ALL OTHER RELIEF GRANTED, ALL COSTS AND EXPENSES THE PREVAILING PARTY INCURRED IN CONNECTION WITH SUCH ACTION OR PROCEEDING, INCLUDING WITHOUT LIMITATION, ALL OF ITS REASONABLE ATTORNEYS' FEES AND EXPENSES. 7.9 NOTICES Any notices given under this Agreement will be effective if (i) forwarded to a Party by hand - delivery; (ii) transmitted to a Party by confirmed telecopy; or (iii) deposited with the U.S. Postal Service, postage prepaid, certified, to the address of the Party indicated below: SELLER: E CITY OF LUBBOCK, TEXAS 1314 Avenue K Lubbock, Texas 79701 Attn: City Manager Telephone: (806) 775-2000 Email: jatkinson@mylubbock.us Leprino Foods Company 1830 W. 38 h Ave Denver, Colorado 80211 Attention: General Counsel Telephone: 303-480-2911 Email: legal0ftprinofoods. com Either Party can change address and/or recipients by providing written notice to the other Party in accordance with this provision. 7.10 COUNTERPARTS; EFFECT OF PARTIAL EXECUTION This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but all of which will constitute the same instrument. Any electronic signature shall be deemed an original. 7.11 AUTHORITY Each Party represents and warrants that it has the full right, power and authority to execute this Agreement. 7.12 NON -APPROPRIATION All funds for payment by the City under this Agreement are subject to the availability of an annual appropriation for this purpose by the City. In the event of non -appropriation of funds by the City Council of the City of Lubbock for the services provided under the Agreement, the City will terminate the Agreement, without termination charge or other liability, on the last day of the then -current fiscal year or when the appropriation made for the then -current year for the services covered by this Agreement is spent, whichever event occurs first (the "Non -Appropriation Date"). If at any time funds are not appropriated for the continuance of this Agreement, cancellation shall be accepted by the Seller on thirty (30) days prior written notice, but failure to give such notice shall be of no effect and the City shall not be obligated under this Agreement beyond the Non -Appropriation Date. 7.13 RECITALS The recitals contained in this Agreement: (a) are true and correct; (b) form the basis upon which the Parties negotiated and entered into this Agreement; (c) are legislative findings of the City Council of Lubbock, and (d) reflect the final intent of the Parties with regard to the subject matter of this Agreement. 7.14 INCORPORATION The Parties acknowledge and agree that the recitals stated above and exhibits attached hereto are incorporated in and made part of this Agreement. 7.15 TIME OF ESSENCE Time is of the essence under this Agreement. 10 7.16 HEADINGS, EXHIBITS, APPENDICES, EXHIBITS AND CONSTRUCTION The headings used for the Sections herein are for convenience and reference purposes only and shall in no way affect the meaning or interpretation of this Agreement. All Exhibits, Appendices and Schedules referenced in this Agreement are hereby incorporated for all purposes. If any inconsistency exists or arises between the terms contained within the Articles of this Agreement and the terms contained within the Exhibits, Appendices and Schedules of this Agreement, then the terms contained within the Articles of this Agreement shall prevail first and then the Exhibits, Appendices and Schedules respectively. If any inconsistency exists or arises between the terms contained within this Agreement, the terms of this Agreement shall prevail as to rights, obligations and liabilities of Seller and City. 7.17 CONTRACTS WITH COMPANIES ENGAGED IN BUSINESS WITH IRAN, SUDAN, OR FOREIGN TERRORIST ORGANIZATION PROHIBITED Pursuant to Section 2252.152 of the Texas Government Code, prohibits the City from entering into a contract with a vendor that is identified by The Comptroller as a company known to have contracts with or provide supplies or service with Iran, Sudan or a foreign terrorist organization 7.18 NO BOYCOTT OF ISRAEL Pursuant to Section 2271.002 of the Texas Government Code, a) This section applies only to a contract that: (1) is between a governmental entity and a company with 10 or more full-time employees; and (2) has a value of $100,000 or more that is to be paid wholly or partly from public funds of the governmental entity. (b) A governmental entity may not enter into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. 7.19 NO BOYCOTT OF ENERGY COMPANIES Pursuant to Section 2274.002 of the Texas Government Code, a) This section applies only to a contract that: (1) is between a governmental entity and a company with 10 or more full-time employees; and (2) has a value of $100,000 or more that is to be paid wholly or partly from public funds of the governmental entity. (b) A governmental entity may not enter into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. 7.20 TEXAS PUBLIC INFORMATION ACT The requirements of Subchapter J, Chapter 552, Government Code, may apply to this contract and the contractor or vendor agrees that the contract can be terminated if the contractor or vendor knowingly or intentionally fails to comply with a requirement of that subchapter. To the extent Subchapter J, Chapter 552, Government Code applies to this agreement, Contractor agrees to: (1) preserve all contracting information related to the contract as provided by the records retention requirements applicable to the governmental body for the duration of the contract; (2) promptly provide to the governmental body any contracting information related to the contract that 11 is in the custody or possession of the entity on request of the governmental body; and (3) on completion of the contract, either: (A) provide at no cost to the governmental body all contracting information related to the contract that is in the custody or possession of the entity; or (B) preserve the contracting information related to the contract as provided by the records retention requirements applicable to the governmental body. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives to be effective on the Effective Date. CITY OF LUBBOCK L-JL DANIEL M. POPE, MAYOR ATTEST: Reb tca Garza, City-Secr0y APPROVED AS TO CONTENT: W. J Atkinson, anager APPROVED AS TO FORM: SELLER: Mark Cramer, SVP Technical Services 12 EXHIBIT A Payment for Treated Effluent Treated Effluent Supply Contract 1.0 When Seller Begins Discharging Treated Effluent a. City of Lubbock will begin paying for each metered gallon discharged by the Seller into the Seller's Treated Effluent outfall authorized by the TCEQ TPDES discharge permit as follows. i. The initial price paid by the City to the Seller for Treated Effluent will be $0.88 per thousand gallons. ii. The subsequent price paid per thousand gallons of Treated Effluent by the City to the Seller will increase at the same percentage as the City's commercial customer Block 1 potable water volume rate increases as authorized by City Council. b. Any Treated Effluent that is discharged by the Seller to the City of Lubbock's Southeast Water Reclamation Plant for further treatment will not be paid for by the City of Lubbock. c. Any Treated Effluent that is discharged by the Seller to the City of Lubbock's Southeast Water Reclamation Plant for further treatment will be subject to the City's commercial sewer base, volume and surcharge rates. 2.0 When City Begins using Treated Effluent a. City of Lubbock's use of the Treated Effluent begins when the City starts diverting the Treated Effluent for beneficial reuse, or impounds the Treated Effluent in any reservoir downstream of Lake 6. b. City of Lubbock will pay per thousand gallons for each metered gallon discharged by the Seller based on the following formula. i. The Treated Effluent will be valued at 65% of the weighted average of the City of Lubbock's `cost of water supply' calculated by averaging the cost of all raw water supplied and delivered to the City's treatment facilities. ii. In the event that the `cost of water supply' is less than $0.88 per thousand gallons, the City will pay the Seller $0.88 per thousand gallons. iii. The City of Lubbock will contract with a third -party as needed to verify the `cost of water supply' at least every three years. 13 EXHIBIT B INSURANCE Seller shall procure and carry, at its sole cost and expense through the life of the Treated Effluent Supply Contract (the "Contract") by and between Leprino Foods Company ("Seller") and the City of Lubbock (the "City") of which this is an incorporated exhibit thereto, insurance protection as hereinafter specified, in form and substance satisfactory to City, carried with an insurance company authorized to transact business in the state of Texas, covering all aspects and risks of loss of all operations in connection with the Contract, including without limitation, the indemnity obligations set forth therein. Seller shall obtain and maintain in full force and effect during the term of the Contract, and shall cause each approved subcontractor or subconsultant of Seller to obtain and maintain in full force and effect during the term of the Contract, commercial general liability, failure to supply, automobile liability coverage for non -owned and hired vehicles, and excess liability umbrella coverage with insurance carriers admitted to do business in the state of Texas. The insurance companies must carry a Best's Rating of A-VIl or better. The policies' will be written on an occurrence basis, subject to the following minimum limits of liability: Commercial General Liability, to include Use of Heavy Equipment and Products of Completed Operations Endorsements: Per Occurrence Single Limit: $1,000,000 General Aggregate Limit: $2,000,000 Failure to Supply: Per Occurrence $1,000,000 Automobile Liability: Combined Single Limit for any auto: $1,000,000 Per Occurrence Excess Liability, Umbrella Form: Per Each Occurrence: $1,000,000 Employer's Liability: Per Occurrence Single Limit: $1,000,000 Seller shall further cause any approved subcontractor to procure and carry, during the term of this Contract, Professional Liability coverage, as specified above for Seller, protecting City against direct losses caused by the professional negligence of the approved subcontractor. The City shall be listed as an additional insured on a primary and noncontributory basis with respect to the Automobile Liability and Commercial General Liability and shall be granted a waiver of subrogation under those policies. Seller shall provide a Certificate of Insurance to the City as evidence of coverage. The Certificate shall provide 30 days notice of cancellation. A copy of the additional insured endorsements and waiver of subrogation attached to the policy 14 will be included in the Certificate. The Commercial General Liability shall include Products and Completed Operations Endorsements. Seller shall elect to obtain workers' compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, Seller shall maintain said coverage throughout the term of this Contract and shall comply with all provision of Title 5 of the Texas Labor Code to ensure that the Seller maintains said coverage. Any termination of workers' compensation insurance coverage by Seller or any cancellation or non -renewal of workers' compensation insurance coverage for the Seller shall be a material breach of this contract. The Seller may maintain Occupational Accident and Disability Insurance in lieu of Workers' Compensation. In either event, the policy must be endorsed to include a waiver of subrogation in favor of the City. Employer's Liability with limits of at least $500,000 each accident, $500,000 by disease policy limit, and $500,000 by disease each employee shall also be obtained and maintained throughout the term of this Contract. If at any time during the life of the Contract or any extension hereof, Seller fails to maintain the required insurance in full force and effect, Seller shall be in breach hereof and all work under the Contract shall be discontinued immediately. The provisions of this exhibit shall survive the termination or expiration of the Contract. 15 EXHIBIT C STREET USE LICENSE THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK § This License made this 22nd day of March 2022, being the date of this License between the CITY OF LUBBOCK, TEXAS, a Home Rule Municipal Corporation, and Leprino Foods Company, a corporation incorporated under the laws of Colorado, hereinafter called `LICENSEE." WITNESSETH: Subject to the terms, conditions, and provisions herein, the CITY OF LUBBOCK does hereby grant to the LICENSEE, the right, privilege and license to use a portion of the City's dedicated right-of-way, and being further described as follows: As described in the attached Attachment A which is attached hereto. The term of this License shall be for five (5) years from date hereof, and shall be automatically extended for successive five (5) year terms not to exceed fifty (50) years in any event unless either party shall give written notice of termination to the other party before the expiration of the first, second or third five (5) year term, as the case may be, and the CITY OF LUBBOCK retains the right at its election to cancel and revoke this License, with or without cause, upon thirty (30) days notice to LICENSEE. Said notice shall be deemed properly served if deposited in the post office, postage paid, addressed to LICENSEE at 1830 W. 38th Ave., Denver, CO 80211, or the last known address of LICENSEE, as provided to the City Manager of the CITY OF LUBBOCK by LICENSEE. Upon the expiration or cancellation and revocation of this License by the CITY OF LUBBOCK, or the abandonment of this License by the LICENSEE, the improvements that are permitted under this License shall be removed by the LICENSEE and the property shall be restored to its original condition at no cost or expense to the CITY OF LUBBOCK. In the event LICENSEE fails or refuses to remove such improvements after demand by the CITY OF LUBBOCK, the CITY OF LUBBOCK shall take possession and remove or cause to be removed such improvements, and the expense incurred shall be assessed against LICENSEE, for which LICENSEE shall be liable. 1. LICENSEE shall pay to the CITY OF LUBBOCK as compensation for such grant the sum of TEN AND NO/DOLLARS ($10.00) cash in advance contemporaneously with the acceptance and execution hereof by LICENSEE and other good and valuable consideration. 2. The LICENSEE agrees to pay all costs arising out of the exercise of this 16 License herein granted including, but not limited to, the cost of cleanup of any oil, hazardous substance, or other material, the replacement and repair of paving, sidewalks and utilities of any nature damaged as a result of the construction authorized by the License. 3. In the event the CITY OF LUBBOCK determines that the License herein granted interferes with or causes the rerouting or realignment of any public utility, franchised utility or sanitary or storm sewer line constructed or to be constructed by the CITY OF LUBBOCK or franchised utility, LICENSEE agrees to reimburse the CITY OF LUBBOCK or such utility, as the case may be, for its expense in relocating or rerouting over and above the expense which would have been incurred except for LICENSEE'S use herein. 4. This License is not transferable by the LICENSEE without first receiving the written consent of the City Manager of the CITY OF LUBBOCK. 5. This License is made subject to the condition that should the LICENSEE exercise any right under this License and prepare or begin or complete any part of the construction as herein contemplated across any or all of the above described property, then and in that event, said LICENSEE, its successors and assigns, will at all time defend, indemnify and otherwise hold the CITY OF LUBBOCK, its agents, servants and employees harmless from any and all claims, demands, actions, causes of action and suits at law or in equity of whatsoever kind or nature which may grow out of or be related to the making of this License or the construction or maintenance use permitted herein. The CITY OF LUBBOCK, at its option, may require an agreement with any contractors hired by LICENSEE to perform the construction, repair or maintenance permitted herein, which agreement will indemnify the CITY OF LUBBOCK from and against all claims, liability, cost and expense growing out of the performance of the work to be done by such contractors. The CITY OF LUBBOCK may further require any of said contractors, when engaged in the construction, repair or maintenance permitted herein, to furnish, without expense to the CITY OF LUBBOCK, a reliable surety bond, in an amount and in a form satisfactory to the said CITY OF LUBBOCK, guaranteeing the faithful performance of all the terms, covenants and conditions contained in said agreement, and a certified copy of a policy of public liability insurance assumed by said contractors in said agreement with the CITY OF LUBBOCK. The CITY OF LUBBOCK agrees to give notice to LICENSEE prior to incurring any costs or expenses or the payment of any such claims or demands in order to give LICENSEE a reasonable opportunity to settle or adjust the same. 6. LICENSEE agrees and is required to furnish a policy of public liability and property damage insurance within limits specified by and in a form satisfactory to the City Attorney for the CITY OF LUBBOCK, and which names the CITY OF LUBBOCK as the insured, said policy covering the uses herein granted. 7. All of the covenants and provisions of this License shall be binding upon and inure to the benefit of the successors, legal representatives, assigns and the duly authorized agents and contractors of the parties hereto to the same extent and effect as the same are binding upon and 17 inure to the benefit of the parties hereto, but no assignment hereof by the LICENSEE, its successors or assigns shall be binding upon the CITY OF LUBBOCK without the consent of the CITY OF LUBBOCK in each instance, except as specified in numbered paragraph four (4). 8. LICENSEE, by the acceptance of the uses permitted herein, understands and agrees that no interest, title or rights of possession are intended or implied except those expressly set forth herein, and LICENSEE waives any and all claims in and to the public way it is permitted to use hereby and agrees to give peaceful possession of said property covered herein upon termination or cancellation of this license. No interest for real property is conveyed or granted by this License. 9. The CITY OF LUBBOCK reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to week any and all forms of relief in a court of competent jurisdiction. Further, the CITY OF LUBBOCK shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. CITY OF L BB DANIEL M. POPE, MAYOR ATTEST: ar" -",,K Ricca Garza, City Sec tart' OVED AS TO P.E., Division Director of Engineering/City Engineer APPROVED AS TO FORM: eputy City Attorney AGREED TO AND ACCEPTED this day of 18 THE STATE OF e S COUNTY OF , L.Ls 6 j)r- LICENSEE: Mark Cramer, SVP Technical Services 0 N BEFORE ME, the undersigned authority, a Notary Public in and for said County and State, on this day personally appeared Daniel M. Pope, Mayor of the City of Lubbock, known to me to be the person 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. GIVEN UNDER MY HAND AND SEAL OF OFFICE this cz a "Ot day of C2DQ'2. Notary Public in and for the sfa4 of Texas My Commission Expires: I- I - ,�: CARINA REYES THE STATE OF TEXAS § Notary Public, State of Texas Notary ID# 13331645.5 My Commission Expires 09-07-2025 COUNTY OF LUBBOCK § BEFORE ME, the undersigned authority, a Notary Public in and for said County and State, on this day personally appeared , known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed and in the capacity therein stated. GIVE UNDER MY HAND AND SEAL OF OFFICE this r5 day of laz Notk Public in and for the State of Colorado My Commission Expires: J aA i4&rEq 23, 2,0 71q. JESSICA KATHLEEN DALY BENALLO NOTARY PUBLIC 19 STATE OF COLORADO NOTARY ID 20204003135 MY COMMISSION EXPIRES JANUARY 23, M4 EXHIBIT D EMERGENCY PIPELINE REPAIR AGREEMENT This agreement is made this 22ndday of March , 202__? _ by and between the City of Lubbock, Texas, a Texas home -rule municipal corporation ("CITY") and Leprino Foods Company, a corporation incorporated under the laws of Colorado ("COMPANY"). WITNESSETH: WHEREAS, CITY is a home rule municipal corporation; and WHEREAS, CITY, provides water utility and sewer system maintenance, repairs and other services within the City of Lubbock; and WHEREAS, the COMPANY will own and operate a facility located at 4301 East 19th Street, Lubbock, TX 79403 and 4502 East 4th Street, Lubbock, TX 79403 (the "Facility") that is estimated to produce an average of 2.0 million gallons per day of treated effluent as a byproduct of its processes (the "Treated Effluent"); and WHEREAS, by agreement dated March 22, 2022 , COMPANY has agreed to sell to CITY the Treated Effluent from the Facility (the "Treated Effluent Agreement"); and WHEREAS, in order to deliver the Treated Effluent to the CITY, COMPANY will own a pipeline that will be located as described in Attachment A, which is attached and incorporated herein (the "Pipeline"); and WHEREAS, in order to insure continuous and reliable delivery of the Treated Effluent and because of the CITY's expertise in such matter, the Parties agree that the CITY may provide emergency repair of the Pipeline as may be necessary from time to time; NOW THEREFORE, this Agreement is entered into by the CITY and COMPANY as follows: ARTICLE 1 LEGAL AUTHORITY 1.1 Legal Authority. CITY and COMPANY mutually warrant that they possess adequate legal authority to enter into this Agreement. The parties' governing bodies have authorized the signatory officials to enter into this Agreement binding the parties to its terms. ARTICLE 2 PURPOSE AND PROVISION OF SERVICES 2.1 Purpose. The purpose of this Agreement is to cooperate in the provision of certain pipeline repairs and maintenance between the CITY and COMPANY to ensure that the Pipeline is properly maintained. 2.2 Provision of Services and Duties of City in Connection with Services. COMPANY hereby engages CITY, and CITY hereby accepts and confirms such engagement, to provide certain Treated Effluent pipeline repair and maintenance services (the "Services") to COMPANY. The 20 nature and scope of the Services and other specific details relating to the Services, and the City's duties in providing the Services, are set forth in the Scope of Work attached hereto as Schedule 1 (the "Scope of Work"). The Services will be limited to those matters described on the Scope of Work and any matters directly related thereto, unless otherwise expanded by the written agreement of the parties; provided that the parties recognize that nothing herein shall obligate the CITY to make routine maintenance repair calls for sewage blockage minor line repairs, or other incidental or routine maintenance procedures on the COMPANY Pipeline, the parties intent being that with respect to the Pipeline, the repair obligations of the CITY shall be limited to "critical care service" such as major line breaks and other critical issues that could have catastrophic effects on the CITY's water system and/or the Pipeline. The determination of what constitutes a "critical care service" shall be at the sole discretion of the CITY. Notwithstanding the forgoing, COMPANY may perform its own water pipeline repair and maintenance services on either a routine or emergency basis without engaging CITY to perform such maintenance and/or repairs, even if such maintenance and/or repairs would otherwise be part of the Services contracted for pursuant to this agreement. 2.3 Right of Entry. The COMPANY shall grant access to the City across and through the COMPANY's real property located in Lubbock County on which Company shall locate and build the Pipeline (the "Real Property") and provide the City with any and all necessary access upon or across the Real Property at such times access is required by the City to fulfill the terms of this Agreement at the COMPANY's request. A general depiction of the Real Property is attached and incorporated herein as Attachment B. ARTICLE 3 TERM AND TERMINATION 3.1 Initial Term. This Agreement becomes effective upon the signing by the authorized and designated agents of each party. It will remain in effect for a period of fifty (50) years unless terminated earlier by either party upon written notice as provided for in Section 3.3. 3.3 Termination, Each party has the right to terminate this Agreement upon ninety (90) days written notice to the other party setting forth the date of termination. ARTICLE 4 CONSIDERATION 4.1 COMPANY shall pay ten and no/100 Dollars ($10) and other good and valuable consideration to the CITY. In addition, COMPANY agrees to reimburse the City for the cost of any labor, materials and any related expenses expended by the City in conducting any emergency repairs on the Pipeline in accordance with this Agreement. ARTICLE 5 INSURANCE 5.1 During the Term, each Party will procure and maintain or self -insure, or cause to be procured and maintained those coverages as outlined in Attachment C attached hereto and made part of this Agreement. 21 5.2 COMPANY shall procure and maintain insurance policies for the property and activities contemplated pursuant to the Agreement and coverages in accordance with the terms of this Agreement, but with policy limits commensurate with the services provided. With respect to the policies and coverages required herein, Seller shall use best efforts to ensure that (a) CITY is named as an additional insured under such policies (except for Worker's Compensation); and (b) certificates of insurance or copies thereof are provided to CITY prior to the commencement of any activities and are maintained throughout such activities. 5.3 All insurance policies required in this Agreement shall be with insurers and forms of policies (including with respect to the deductibles or retentions) reasonably satisfactory to CITY. Any insurers shall have minimum rating of "A- (VII)" from A.M. Best or such other rating as may be reasonably acceptable to the Parties or for City. To the extent of the risks and liabilities assumed by the insuring Party under the Agreement, all insurance policies except for Worker's Compensation shall be endorsed to name the City of Lubbock as "additional insured" on a primary and non-contributory basis, and shall waive subrogation in favor of the City of Lubbock. All Parties shall cause original, duly executed Certificates of Insurance to be furnished evidencing the insurance required hereunder and at each anniversary of coverage thereafter. Each Party shall provide the other with thirty (30) days prior written notice of any material change or cancellation of any of the insurance policies required under this Agreement. 5.4 The amounts of insurance delineated in Attachment C shall be the minimum insurance requirements and nothing contained therein shall serve in any way to limit or waive the Parties' indemnity obligations under this Agreement. Further, irrespective of the minimum insurance requirements specified herein, the insolvency, bankruptcy, or failure of any of the Parties' insurers, or failure of any such insurer to pay claims accruing, shall not affect, negate, or waive any of the provisions of this Agreement. 5.5 The provisions of this Article 5 shall survive the termination or expiration of this Agreement. 5.6 COMPANY SHALL INDEMNIFY AND SAVE HARMLESS THE CITY OF LUBBOCK AND ITS ELECTED OFFICIALS, OFFICERS, AGENTS, AND EMPLOYEES FROM ALL SUITS, ACTIONS, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY KIND, CHARACTER, TYPE, OR DESCRIPTION, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY OR DEATH TO ANY PERSON, OR INJURY TO ANY PROPERTY, RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, TO THE EXTENT ARISING OUT OF, RELATED TO OR OCCASIONED BY, THE NEGLIGENT ACTS OF COMPANY, ITS AGENTS, EMPLOYEES, AND/OR SUBCONTRACTORS, RELATED TO THE PERFORMANCE, OPERATIONS OR OMISSIONS UNDER THIS AGREEMENT AND/OR THE USE OR OCCUPATION OF CITY OWNED PROPERTY. THE INDEMNITY OBLIGATION PROVIDED HEREIN SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. 22 ARTICLE 7 MISCELLANEOUS 7.1 Notices, All notices and communications required or allowed by this Agreement must be in writing and given by depositing the notice in the United States mail, postage paid and registered or certified, with return receipt requested, and addressed to the party to be notified. Notice deposited in the mail in the above described manner will be conclusively deemed to be effective after the expiration of three (3) days business days after the notice is deposited in the mail. Notice given in any other manner will be effective only if and when received by an officer or the designated representative of the party to be notified. (a) For purposes of notice, the addresses of the designated representatives for receipt of notice for each of the parties are as follows: CITY: 1*i9j i 7:1'ZbV CITY OF LUBBOCK, TEXAS 1314 Avenue K Lubbock, Texas 79701 Attn: City Manager Telephone: (806) 775-2000 Email: jatkinson@rn ubbock.us Leprino Foods Company 1830 W. 38 h Ave Denver, Colorado 80211 Attention: General Counsel Telephone: 3 03-480-2911 Email: legalQleprinofoods.com (b) Either party may change its address by giving written notice of the change to the other party at least fifteen (15) days before the change becomes effective. 7.2 Partial Invalidity. In the event one or more of the provisions contained in this Agreement shall be invalid, illegal, or unenforceable in any respect under any law, rule or regulation, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. 7.3 No Assigm . All promises, undertakings, agreements, covenants and contracts herein contained by or on behalf of either City or the Seller shall bind the successors and permitted assigns of either party, whether so expressed or not; but neither City nor the Seller shall have the right to assign under this Agreement, without the written consent of the other party. 7.4 Whole Agreement. This Agreement constitutes the complete agreement between the parties, and supersedes any and all prior oral and written agreements between the parties relating to the 23 matters contained in this Agreement. Except as otherwise provided in this Agreement, the Agreement cannot be modified without the written consent of the parties. 7.5 Changes and Amendments, This Agreement contains all commitments and agreements of the parties and no other oral or written commitments will have any force or effect if not contained in this Agreement. Any proposed changes or amendments will not be effective until approved in writing by the parties to this Agreement. Any alterations, additions or deletions to the terms of this Agreement which are required by changes in Federal or State law or regulations are automatically incorporated into this Agreement without written amendment to the Agreement, and become effective on the date designated by such law or regulation. 7.6 Waiver of Breach, If a party waives enforcement, or fails to act promptly to enforce any provisions of this Agreement upon any event of breach by the other party, such waiver will not extend to any continuation of the breach or to any other or future events of breach, and such failure to act promptly will not waive a breach nor extend to any continuation of the breach or to any other or future events of breach, 7.7 Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer upon any person or entity, other than the Parties, any rights, benefits, or remedies under or by reason of this Agreement. 7.8 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 hereof. 7.9 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. No Party shall have any power to assume or create any obligation on behalf of the other Party except for the contractual arrangements set forth herein. 7.10 Amendments. Any amendment of this Agreement must be in writing and will be effective if it is signed by the authorized representatives of the Parties. 7.11 APPLICABLE LAW AND VENUE THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THIS AGREEMENT IS PERFORMABLE IN LUBBOCK COUNTY, TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF COMPETENT JURISDICTION OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. 7.12 Counterparts; Effect of Partial Execution. This Agreement may be executed in multiple 24 counterparts, each of which will be deemed an original, but all of which will constitute the same instrument. Any electronic signature shall be deemed an original. 7.13 Non -Appropriation. All funds for payment by the City under this Agreement are subject to the availability of an annual appropriation for this purpose by the City. In the event of non - appropriation of funds by the City Council of the City of Lubbock for the services provided under the Agreement, the City will terminate the Agreement, without termination charge or other liability, on the last day of the then -current fiscal year or when the appropriation made for the then -current year for the services covered by this Agreement is spent, whichever event occurs first (the "Non -Appropriation Date"). If at any time funds are not appropriated for the continuance of this Agreement, cancellation shall be accepted by the Seller on thirty (30) days prior written notice, but failure to give such notice shall be of no effect and the City shall not be obligated under this Agreement beyond the Non -Appropriation Date. 7.14 Recitals. The recitals contained in this Agreement: (a) are true and correct; (b) form the basis upon which the Parties negotiated and entered into this Agreement; (c) are legislative findings of the City Council of Lubbock, and (d) reflect the final intent of the Parties with regard to the subject matter of this Agreement. 7.15 Incorporation. The Parties acknowledge and agree that the recitals stated above and exhibits attached hereto are incorporated in and made part of this Agreement. 7.16 Time of Essence. Time is of the essence under this Agreement. 7.17 Headings, Exhibits, Appendices, Exhibits and Construction. The headings used for the Sections herein are for convenience and reference purposes only and shall in no way affect the meaning or interpretation of this Agreement. All Exhibits, Appendices and Schedules referenced in this Agreement are hereby incorporated for all purposes. If any inconsistency exists or arises between the terms contained within the Articles of this Agreement and the terms contained within the Exhibits, Appendices and Schedules of this Agreement, then the terms contained within the Articles of this Agreement shall prevail first and then the Exhibits, Appendices and Schedules respectively. If any inconsistency exists or arises between the terms contained within this Agreement, the terms of this Agreement shall prevail as to rights, obligations and liabilities of Seller and City. 7.20 Texas Public Information Act. The requirements of Subchapter J, Chapter 552, Government Code, may apply to this contract and the contractor or vendor agrees that the contract can be terminated if the contractor or vendor knowingly or intentionally fails to comply with a requirement of that subchapter. To the extent Subchapter J, Chapter 552, Government Code applies to this agreement, Contractor agrees to: (1) preserve all contracting information related to the contract as provided by the records retention requirements applicable to the governmental body for the duration of the contract; (2) promptly provide to the governmental body any contracting information related to the contract that is in the custody or possession of the entity on request of the governmental body; and (3) on completion of the contract, either: (A) provide at no cost to the governmental body all contracting information related to the contract that is in the custody or possession of the entity; or 25 (B) preserve the contracting information related to the contract as provided by the records retention requirements applicable to the governmental body. IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the effective date written below, each respective party acting by and through its governing body or its designee in the manner required by each parry's charter or otherwise required by law on the date specified below. EXECUTED on this the day of CITY OF LUBBOCK BY: Da4-Pop,ayor ATTEST: Re cca Garza, City Se et March 22 APP OVED AS TO ONTENT: lva-vf3 .�r1J� .�i1-t°e7=fZ. APPROVED AS TO FORM: , 20 22 COMPANY BY: /,- - Mark Cramer, SVP Technical Services ATTEST: oy` , i3G/G Schedule 1 Scope of Work At the COMPANY's request, the CITY will assist the COMPANY on a non -routine, emergency response basis to provide the critical care services listed below. The response time will depend upon the City's completion of priority repairs and maintenance within its own water and sewer systems. The City will provide the COMPANY with the estimated time it will take to respond to the COMPANY's situation. The COMPANY will agree to the estimated response time prior to the City scheduling the work. Services include: Task 1 Repairing major, critical Treated Effluent pipeline leaks or breaks that have a significant impact on the COMPANY's ability to discharge Treated Effluent. Task 2 Responding to problems with the COMPANY's Treated Effluent pipeline that have the potential to reduce the integrity and safety of the COMPANY's facility or CITY sewer systems. Task 3 Repairing significant damage to, remove blockage from, or assist with problems that could create a loss of Treated Effluent pipeline use or imperil the safety of others. Task 4 Providing consultation to the COMPANY regarding upgrades and enhancements to the Treated Effluent pipeline and sewer system. 27