HomeMy WebLinkAboutResolution - 5826 - Power Capacity Agreement - WTMPA - Power Project - 04_23_1998RESOLUTION NO. 5826
Item #25
April 23, 1998
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock a Power Capacity
Agreement, attached herewith, by and between the City of Lubbock and West Texas
Municipal Power Agency, and any associated documents, which Agreement shall be
spread upon the minutes of the Council and as spread upon the minutes of this Council
shall constitute and be a part of this Resolution as if fully copied herein in detail.
Passed by the City Council this 23rd day of April , 1998.
Ir
FWn," .
ATTEST:
Ay ODarnell, City Secretary
APPROVED AS TO CONTENT:
Paul Thompson, Managing Director
of Electric Utilities
APPROVED AS TO RM:
Richard K. Casner, Natural Resources Attorney
da/ccdocs/powercapagr-wtmpa.res
April 15, 1998
RESOLUTION NO. 5826
Item #25
April 23, 1998
POWER CAPACITY AGREEMENT
This Agreement ("the Agreement") between West Texas Municipal Power Agency
("WTMPA"), a municipal corporation and political subdivision of the State of Texas, and
the City of Lubbock ("City"), a municipal corporation and home rule city situated in
Lubbock County, Texas (collectively WTMPA and City may be referred to as the
"Parties" or individually as a "Party").
WITNESSETH:
WHEREAS, WTMPA has adopted and is proceeding to implement a 62MW
electric power project; and
WHEREAS, the Project will consist of (i) the acquisition, construction and
installation of a 40-MW combustion turbine generator at Lubbock Power & Light's
("LP&L") Plant No. 2 and (ii) the repowering of either Unit 6 or Unit 7, which are both
existing 22-MW Westinghouse non -reheat, condensing steam turbine generators located
at LP&L's Plant No. 2 (collectively, "the Project") for which WTMPA has contracted for
the capacity;
and
WHEREAS, in exchange for providing the funds to finance the repowering of
either generating Unit 6 or Unit 7, City will dedicate the total capacity and output to
WTMPA of either Unit 6 or Unit 7, the units being identical, and will maintain the other
unit as a reserve or back-up source for scheduled maintenance, nonscheduled outages and
emergencies;
0
NOW, THEREFORE, for the mutual considerations and under terms and
conditions hereinafter set forth, WTMPA and City agree as follows:
SECTION I. Service Supplied by WTMPA.
WTMPA shall provide the funding for the Project, including funds to repower
City's existing electric generating Unit 6 or Unit 7 located at City's Plant No. 2, each
with a rated capacity of 22 MW.
SECTION II. Conditions to Service Supplied by WTMPA.
(1) The service to be provided by WTMPA set forth in Section 1 above is
expressly conditioned upon WTMPA securing adequate funding through the issuance of
tax-exempt revenue bonds within calendar year 1998 to finance the Project.
(2) The service to be provided by WTMPA set forth in Section 1 above is
expressly conditioned upon the execution of a mutually agreeable Operation Management
Agreement between City and WTMPA.
SECTION III. Service Supplied by City.
(1) City shall provide, out of either City Unit 6 or Unit 7, the unit's total
capacity rated at 22 MW or total output (if higher or lower than the rated capacity), which
capacity shall be dedicated to the sole use of WTMPA and arrange for the output to be
delivered as directed by WTMPA to its member cities (City, City of Brownfield, City of
Floydada and the City of Tulia).
2
d
(2) City shall provide at its actual cost necessary ancillary services, to the
extent available to the City, enumerated in Subst. R. 23.67(d) of the Public Utility
Commission of Texas required to provide the capacity designated in (1) above to the
extent of City's capability within its electric system. Nothing herein shall be construed
to require the City to expend funds, or utilize other efforts, to provide ancillary services
which it cannot provide without such funds or efforts.
SECTION IV. Conditions to Service Supplied by City.
The services to be supplied by City are expressly conditioned upon:
(1) WTMPA obtaining the funding for the Project.
(2) The installation and commercial operation of the 40 MW combustion
turbine generator at City's Plant No. 2 and WTMPA providing sufficient
funds to the City to repower either Unit 6 or Unit 7.
SECTION V. Compensation to City.
(1) WTMPA shall pay City its actual costs for operating the generation units
providing the capacity or output to WTMPA under this Agreement.
(2) City's costs shall include, among others, all costs for labor, materials,
supplies (including fuel) and overhead required to operate the unit providing the capacity
or output to WTMPA. The costs shall be the actual costs of City to provide the services,
and these costs must be reasonable for equivalent services in the Lubbock area.
Overhead costs include the City's reasonable direct and indirect administrative
and general charges charged directly or allocated to its duties under this Agreement. In
3
no event will WTMPA be obligated for overhead costs exceeding five per cent (5%)
annually of the total actual costs of operation, excluding overhead costs, without the
consent of WTMPA.
SECTION VI. Replacement Capacity.
(1) The City shall make available for replacement capacity to WTMPA either
Unit 6 or Unit 7. In the event either Unit 6 or Unit 7 shall not be available, the City shall
make available to WTMPA for replacement capacity the remaining Unit. In the event
neither Unit 6 nor Unit 7 are available for any reason to provide WTMPA its entitlement
to capacity or output, the City is under no obligation to secure another source to supply
equivalent power and energy to WTMPA.
SECTION VII. Metering.
(1) City shall provide a meter (or meters) to measure accurately the output of
power and energy supplied to WTMPA under this Agreement.
(2) The meter shall be read monthly or at such other times as mutually agreed
by the Parties.
(3) The meter shall be tested and calibrated at intervals agreed by the Parties.
If the meter is found not to be registering accurately, it shall be restored to an accurate
condition or replaced.
4
SECTION VIII. Billings and Payments.
(1) City shall submit an invoice monthly for its actual costs of providing to
WTMPA its capacity and output entitlement under this Agreement. WTMPA shall pay
City the amount reflected by the invoice within fifteen (15) days of receipt of the invoice.
(2) In the event WTMPA determines that errors exist within the invoice, it
shall immediately notify City, and the Parties shall attempt in good faith to resolve the
issue(s). If not resolved by the time payment of the invoice is due, WTMPA shall pay the
full amount of the invoice, under protest, unless otherwise agreed by the Parties.
(3) If the amount in dispute cannot be resolved by good faith negotiations by
the Parties, either Party may proceed to pursue its remedies in law or in equity.
SECTION IX. Record Inspection.
City shall maintain all records supporting its costs incurred in the performance of
this Agreement open for inspection by WTMPA, or its agents, during normal business
hours. City shall cooperate with WTMPA to facilitate any record inspection.
SECTION X. Default
(1) As used in this Section X, "default" shall mean the failure of V;TMPA or
City to perform any obligation in the time and manner required by this Agreement, except
where such failure to discharge obligations (other than the payment of money) is the
result of Force Majeure as defined in Section XXV hereof.
(2) Upon failure of a Parry hereto to perform any obligation required
hereunder, the other Party shall give written notice of such default to the Party in default.
5
The Party in default shall have thirty (30) days within which to cure such default, and, if
cured within such time, the default specified in such notice shall cease to exist.
(3) If a default is not cured as provided in paragraph (2) above, the Party not
in default may resort to all remedies available at law or equity. including recovery of
reasonable expenses and reasonable attorneys' fees incurred in connection therewith.
SECTION XI. Good Utility Practice.
The term "Good Utility Practice" shall mean any of the engineering and operating
practices, methods and acts engaged in or accepted by a significant portion of the electric
utility industry in the United States of America at the time the decision was made or any
of the practices, methods and acts that, in the exercise of reasonable judgment in the light
of the facts known at the time the decision was made, could have been expected to
accomplish the desired result at the lowest reasonable costs consistent with reliability,
safety and expedition. Good Utility Practice is not intended to be limited to the optimum
practice, method or act to the exclusion of all others, but rather includes a spectrum of
possible practices, methods or acts.
SECTION XII. Term of Agreement.
Subject to the terms hereof, the term of this Agreement shall be of equal duration
with any outstanding "West Texas Municipal Power Agency Revenue Bonds, Series
1998" (the "Bonds') and shall continue thereafter unless either WTMPA or City gives
one (1) year's advance notice of termination.
0
In the event City shall dispose or abandon substantially all of the electric
generating facilities owned by it or electric generation facilities related to the Project, and
the Bonds have been paid, or provision for their payment has been made, pursuant to the
terms of the Resolution authorizing the issuance of the Bonds, City may, at its election,
terminate this Agreement as of the effective date of such disposal or abandonment. Upon
such termination, City shall be released and relieved of all of its obligations and liabilities
under this Agreement, occurring or accruing from and after the effective date of such
disposal or abandonment.
SECTION XIII. Governing Law and Venue.
The validity, interpretation and performance of this Agreement and each of its
provisions shall be governed by the laws of the State of Texas. Venue for any litigation
arising out of a dispute under this Agreement shall lie in Lubbock County, Texas.
SECTION XIV. Notice
Any notice, request, demand or statement which may be given to or made upon a
Party hereto by the other Party hereto under any of the provisions of this Agreement shall
be in writing, unless it is specifically provided otherwise herein, and shall be treated as
duly delivered when deposited in the United States mail, by certified mail, postage
prepaid, and properly addressed to the party to be served, as follows:
7
i
If the notice is to City:
Director of Electric Utilities
City of Lubbock
P. O. Box 2000
Lubbock, Texas 79457
If the notice is to WTMPA:
West Texas Municipal Power Agency
P.O. Box 2000
Lubbock, Texas 79457
The names, titles and addresses of either Party in this section may be changed by
written notification to the other Party.
SECTION XV. Section Headings Not to Affect Meaning
The descriptive headings of the various articles and sections of this Agreement
have been inserted for convenience of reference only and shall in no way modify or
restrict any of the terms and provisions thereof.
SECTION XVI. Counterparts.
This Agreement shall be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one
and the same instrument.
SECTION XVII. Amendments.
This Agreement may only be amended by a writing signed by both Parties.
8
SECTION XVIII. Severability.
In the event any material term, covenant or condition of this Agreement, or any
amendment hereto, or the application of any such term, covenant or condition shall be
held invalid, illegal or unenforceable as to any Party or circumstances by any court or
regulatory authority having jurisdiction, WTMPA and City shall conduct good faith
negotiations for the purpose of reaching a mutually acceptable written agreement to
replace the deleted provision(s) with provision(s) that will most nearly accomplish the
purpose and intent of the deleted provision(s).
SECTION XIX. Computation of Time.
In computing any period of time prescribed or allowed by this Agreement, the day
of the act, event or default from which the designated period of time begins to run shall
not be included. The last day of the period so computed shall be included unless it is a
Saturday, Sunday or legal holiday, in which event the period shall run until the end of the
next business day that is neither a Saturday, Sunday nor a legal holiday.
SECTION XX. Limitation.
This Agreement is not intended to and shall not create rights of any character
whatsoever in favor of any person, corporation, association or entity other than the Parties
to this Agreement and the member cities of WTMPA, and the obligations herein assumed
are solely for the use and benefit of the Parties to this Agreement and the member cities
of WTMPA, their successors in interest, or assigns.
9
e
SECTION XXI. Waivers.
A waiver by a Party of a default by the other Party shall not be deemed a waiver
of any other or subsequent default.
SECTION XXII. Regulation.
This Agreement is subject to applicable federal, state and local laws, ordinances,
rules and regulations. Nothing herein contained shall be construed as a wavier of any
right to question or contest any such law, ordinance, rule, regulation or asserted
regulatory jurisdiction.
SECTION XXIII. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of and be binding
upon the successors and assigns of the Parties hereto, but neither Party shall assign its
interest in the Agreement in whole or in part without the prior written consent of the other
Party, which consent will not be unreasonably withheld.
Nothing contained herein shall require the consent of the non -transferring party to
a transfer of this Agreement by virtue of a sale or other disposal of substantially all of the
electric generation facilities of the City or electric generation facilities related to the
Project. If the Bonds have been paid, or provision for their payment has been made,
pursuant to the terms of the Resolution authorizing the issuance of the Bonds, City shall
be released and relieved of all of its obligations and liabilities under this Agreement,
occurring or accruing from and after the effective date of such disposal or abandonment.
10
SECTION XXIV. Survivorship of Obligations.
Except as otherwise provided herein, the termination or cancellation of this
Agreement shall not discharge any Party from any obligation it owes to the other Party
under this Agreement by reason of any transaction, loss, cost, damage, expense or
liability that shall occur or arise prior to such termination. It is the intention of the Parties
that any such obligation owed (whether the same shall be known or unknown as of the
termination or cancellation of this Agreement) shall survive the termination or
cancellation of this Agreement.
SECTION XXV. Force Maieure
Neither Party shall be liable to the other Party for failure to perform its obligations
under this Agreement when such failure is attributable solely to Force Majeure. Force
Majeure shall mean any cause beyond the reasonable control of either Party, including,
without limitation, failure, or imminent threat of failure, of facilities or equipment, flood,
freeze, earthquake, storm, fire, lightning, other acts of God, epidemic, war, acts of a
public enemy, riot, civil disturbance or disobedience, strike, lockout, work stoppages,
other industrial disturbance or dispute, labor or material shortage, sabotage, restraint by
court order or other public authority, and action or nonaction by, or failure or inability to
obtain the necessary authorizations or approvals from, any governmental agency or
authority, which by the exercise of due diligence it could not overcome. Nothing
contained herein shall be construed so as to require the'Parties to settle any strike,
lockout, work stoppage or any industrial disturbance or dispute in which it may be
11
.
s
1
y
involved, or to seek review of or take an appeal from any administrative or judicial
action.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed this 23 day of April , 1998.
CITY F LUBBOCK: WEST TEXAS MUNICIPAL POWER AGENCY:
B17 BY:
WINDY Syft N, OR President, Board of Directors
A ST: ATTEST:
14k6l'L " /M
Ka amell, City Secretary Secretary
APPROVED AS TO CONTENT:
Paul Thompso , Managing Director
of Electric Utilities
APPROVED AS TO
Richard K. Cas , Natural Resources Attorney
fina12-powercapagr-wtmpa.doc
April 22, 1998
12
RESOLUTION NO. 5826
Item #25
April 23, 1998
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock a Power Capacity
Agreement, attached herewith, by and between the City of Lubbock and West Texas
Municipal Power Agency, and any associated documents, which Agreement shall be
spread upon the minutes of the Council and as spread upon the minutes of this Council
shall constitute and be a part of this Resolution as if fully copied herein in detail.
Passed by the City Council this
23rd day of April ,1998.
vvllj�ndi� .,/_ am.
ATTEST:
Yj u1i . I JAO-IUA
ay barnell, City Secretary
APPROVED AS TO CONTENT:
4waft�p=
Paul Thompson, Managing Director
of Electric Utilities
APPROVED AS TO RM:
Richard K. Casner, Natural Resources Attorney
da/ccdocs/powcrcapagr-wtnpa.res
April 15, 1998
RESOLUTION NO. 5826
Item # 25
April 23, 1998
POWER CAPACITY AGREEMENT
This Agreement ("the Agreement") between West Texas Municipal Power Agency
("WTMPA"), a municipal corporation and political subdivision of the State of Texas, and
the City of Lubbock ("City"), a municipal corporation and home rule city situated in
Lubbock County. Texas (collectively WTMPA and City may be referred to as the
"Parties" or individually as a "Party").
WITNESSETH:
WHEREAS, WTMPA has adopted and is proceeding to implement a 62MW
electric power project; and
WHEREAS, the Project will consist of (i) the acquisition, construction and
installation of a 40-MW combustion turbine generator at Lubbock Power & Light's
("LP&L") Plant No. 2 and (ii) the repowering of either Unit 6 or Unit 7, which are both
existing 22-MW Westinghouse non -reheat, condensing steam turbine generators located
at LP&L's Plant No. 2 (collectively, "the Project") for which WTMPA has contracted for
the capacity;
and 1
WHEREAS, in exchange for providing the funds to finance the repowering of
either generating Unit 6 or Unit 7, City will dedicate the total capacity and output to
WTMPA of either Unit 6 or Unit 7, the units being identical, and will maintain the other
unit as a reserve or back-up source for scheduled maintenance, nonscheduled outages and
emergencies;
NOW, THEREFORE, for the mutual considerations and under terms and
conditions hereinafter set forth, WTMPA and City agree as follows:
SECTION I. Service Supplied by WTMPA.
WTMPA shall provide the funding for the Project, including funds to repower
City's existing electric generating Unit 6 or Unit 7 located at City's Plant No. 2, each
with a rated capacity of 22 MW.
SECTION II. Conditions to Service Supplied by WTMPA.
(1) The service to be provided by WTMPA set forth in Section 1 above is
expressly conditioned upon WTMPA securing adequate funding through the issuance of
tax-exempt revenue bonds within calendar year 1998 to finance the Project.
(2) The service to be provided by WTMPA set forth in Section 1 above is
expressly conditioned upon the execution of a mutually agreeable Operation Management
Agreement between City and WTMPA.
SECTION III. Service Supplied by City.
(1) City shall provide, out of either City Unit 6 or Unit 7, the unit's total
capacity rated at 22 MW or total output (if higher or lower than the rated capacity), which
capacity shall be dedicated to the sole use of WTMPA and arrange for the output to be
delivered as directed by WTMPA to its member cities (City, City of Brownfield, City of
Floydada and the City of Tulia).
2
(2) City shall provide at its actual cost necessary ancillary services, to the
extent available to the City, enumerated in Subst. R. 23.67(d) of the Public Utility
Commission of Texas required to provide the capacity designated in (1) above to the
extent of City's capability within its electric system. Nothing herein shall be construed
to require the City to expend funds, or utilize other efforts, to provide ancillary services
which it cannot provide without such funds or efforts.
SECTION IV. Conditions to Service Supplied by City.
The services to be supplied by City are expressly conditioned upon:
(1) WTMPA obtaining the funding for the Project.
(2) The installation and commercial operation of the 40 MW combustion
turbine generator at City's Plant No. 2 and WTMPA providing sufficient
funds to the City to repower either Unit 6 or Unit 7.
SECTION V. Compensation to City.
(1) WTMPA shall pay City its actual costs for operating the generation units
providing the capacity or output to WTMPA under this Agreement.
(2) City's costs shall include, among others, all costs for labor, materials,
supplies (including fuel) and overhead required to operate the unit providing the capacity
or output to WTMPA. The costs shall be the actual costs of City to provide the services,
and these costs must be reasonable for equivalent services in the Lubbock area.
Overhead costs include the City's reasonable direct and indirect administrative
and general charges charged directly or allocated to its duties under this Agreement. In
3
no event will WTMPA be obligated for overhead costs exceeding five per cent (5%)
annually of the total actual costs of operation, excluding overhead costs, without the
consent of WTMPA.
SECTION VI. Replacement Capacity.
(1) The City shall make available for replacement capacity to WTMPA either
Unit 6 or Unit 7. In the event either Unit 6 or Unit 7 shall not be available, the City shall
make available to WTMPA for replacement capacity the remaining Unit. In the event
neither Unit 6 nor Unit 7 are available for any reason to provide WTMPA its entitlement
to capacity or output, the City is under no obligation to secure another source to supply
equivalent power and energy to WTMPA.
SECTION VII. Metering.
(1) City shall provide a meter (or meters) to measure accurately the output of
power and energy supplied to WTMPA under this Agreement.
(2) The meter shall be read monthly or at such other times as mutually agreed
by the Parties.
(3) The meter shall be tested and calibrated at intervals agreed by the Parties.
If the meter is found not to be registering accurately, it shall be restored to an accurate
condition or replaced.
4
SECTION VIII. Billings and Payments.
(1) City shall submit an invoice monthly for its actual costs of providing to
WTMPA its capacity and output entitlement under this Agreement. WTMPA shall pay
City the amount reflected by the invoice within fifteen (15) days of receipt of the invoice.
(2) In the event WTMPA determines that errors exist within the invoice, it
shall immediately notify City, and the Parties shall attempt in good faith to resolve the
issue(s). If not resolved by the time payment of the invoice is due, WTMPA shall pay the
full amount of the invoice, under protest, unless otherwise agreed by the Parties.
(3) If the amount in dispute cannot be resolved by good faith negotiations by
the Parties, either Party may proceed to pursue its remedies in law or in equity.
SECTION IX. Record Inspection.
City shall maintain all records supporting its costs incurred in the performance of
this Agreement open for inspection by WTMPA, or its agents, during normal business
hours. City shall cooperate with WTMPA to facilitate any record inspection.
SECTION X. Default
(1) As used in this Section X, "default" shall mean the failure of WTMPA or
City to perform any obligation in the time and manner required by this Agreement, except
where such failure to discharge obligations (other than the payment of money) is the
result of Force Majeure as defined in Section XXV hereof.
(2) Upon failure of a Party hereto to perform any obligation required
hereunder, the other Party shall give written notice of such default to the Party in default.
The Party in default shall have thirty (30) days within which to cure such default, and, if
cured within such time, the default specified in such notice shall cease to exist.
(3) If a default is not cured as provided in paragraph (2) abo,-e, the Party not
in default may resort to all remedies available at law or equity, including recovery of
reasonable expenses and reasonable attorneys' fees incurred in connection therewith.
SECTION XI. Good Utility Practice.
The term "Good Utility Practice" shall mean any of the engineering and operating
practices, methods and acts engaged in or accepted by a significant portion of the electric
utility industry in the United States of America at the time the decision was made or any
of the practices, methods and acts that, in the exercise of reasonable judgment in the light
of the facts known at the time the decision was made, could have been expected to
accomplish the desired result at the lowest reasonable costs consistent with reliability,
safety and expedition. Good Utility Practice is not intended to be limited to the optimum
practice, method or act to the exclusion of all others, but rather includes a spectrum of
possible practices, methods or acts.
SECTION XII. Term of Agreement.
Subject to the terms hereof, the term of this Agreement shall be of equal duration
with any outstanding "West Texas Municipal Power Agency Revenue Bonds, Series
1998" (the "Bonds") and shall continue thereafter unless either WTNfPA or City gives
one (1) year's advance notice of termination.
Z
In the event City shall dispose or abandon substantially all of the electric
generating facilities owned by it or electric generation facilities related to the Project, and
the Bonds have been paid, or provision for their payment has been made, pursuant to the
terms of the Resolution authorizing the issuance of the Bonds. City may, at its election,
terminate this Agreement as of the effective date of such disposal or abandonment. Upon
such termination, City shall be released and relieved of all of its obligations and liabilities
under this Agreement, occurring or accruing from and after the effective date of such
disposal or abandonment.
SECTION XIII. Governing Law and Venue.
The validity, interpretation and performance of this Agreement and each of its
provisions shall be governed by the laws of the State of Texas. Venue for any litigation
arising out of a dispute under this Agreement shall lie in Lubbock County, Texas.
SECTION XIV. Notice
Any notice, request, demand or statement which may be given to or made upon a
Party hereto by the other Party hereto under any of the provisions of this Agreement shall
be in writing, unless it is specifically provided otherwise herein, and shall be treated as
duly delivered when deposited in the United States mail, by certified mail, postage
prepaid, and properly addressed to the party to be served, as follows:
7
If the notice is to City:
Director of Electric Utilities
City of Lubbock
P. O. Box 2000
Lubbock. Texas 79457
If the notice is to WTMPA:
West Texas Municipal Power Agency
P.O. Box 2000
Lubbock, Texas 79457
The names, titles and addresses of either Party in this section may be changed by
written notification to the other Party.
SECTION XV. Section Headings Not to Affect Meaning
The descriptive headings of the various articles and sections of this Agreement
have been inserted for convenience of reference only and shall in no way modify or
restrict any of the terms and provisions thereof.
SECTION XVI. Counterparts.
This Agreement shall be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one
and the same instrument.
SECTION XVII. Amendments.
This Agreement may only be amended by a writing signed by both Parties.
8
SECTION XVIII. Severability.
In the event any material term, covenant or condition of this Agreement, or any
amendment hereto, or the application of any such term, covenant or condition shall be
held invalid, illegal or unenforceable as to any Party or circumstances by any court or
regulatory authority having jurisdiction, WTMPA and City shall conduct good faith
negotiations for the purpose of reaching a mutually acceptable written agreement to
replace the deleted provision(s) with provision(s) that will most nearly accomplish the
purpose and intent of the deleted provision(s).
SECTION XIX. Computation of Time.
In computing any period of time prescribed or allowed by this Agreement, the day
of the act, event or default from which the designated period of time begins to run shall
not be included. The last day of the period so computed shall be included unless it is a
Saturday, Sunday or legal holiday, in which event the period shall run until the end of the
next business day that is neither a Saturday, Sunday nor a legal holiday.
SECTION XX. Limitation.
This Agreement is not intended to and shall not create rights of any character
whatsoever in favor of any person, corporation, association or entity other than the Parties
to this Agreement and the member cities of WTMPA, and the obligations herein assumed
are solely for the use and benefit of the Parties to this Agreement and the member cities
of WTMPA, their successors in interest, or assigns.
0
SECTION XXI. Waivers.
A waiver by a Party of a default by the other Party shall not be deemed a waiver
of any other or subsequent default.
SECTION XXII. Remulation.
This Agreement is subject to applicable federal, state and local Iaws, ordinances,
rules and regulations. Nothing herein contained shall be construed as a wavier of any
right to question or contest any such law, ordinance, rule, regulation or asserted
regulatory jurisdiction.
SECTION XXIII. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of and be binding
upon the successors and assigns of the Parties hereto, but neither Party shall assign its
interest in the Agreement in whole or in part without the prior written consent of the other
Parry, which consent will not be unreasonably withheld.
Nothing contained herein shall require the consent of the non -transferring party to
a transfer of this Agreement by virtue of a sale or other disposal of substantially all of the
electric generation facilities of the City or electric generation facilities related to the
Project. If the Bonds have been paid, or provision for their payment has been made,
pursuant to the terms of the Resolution authorizing the issuance of the Bonds, City shall
be released and relieved of all of its obligations and liabilities under this Agreement,
occurring or accruing from and after the effective date of such disposal or abandonment.
10
SECTION XXIV. Survivorship of Obligations.
Except as otherwise provided herein, the termination or cancellation of this
Agreement shall not discharge any Party from any obligation it owes to the other Party
under this Agreement by reason of any transaction, loss, cost, damage, expense or
liability that shall occur or arise prior to such termination. It is the intention of the Parties
that any such obligation owed (whether the same shall be known or unknown as of the
termination or cancellation of this Agreement) shall survive the termination or
cancellation of this Agreement.
SECTION XXV. Force Majeure
Neither Party shall be liable to the other Party for failure to perform its obligations
under this Agreement when such failure is attributable solely to Force Majeure. Force
Majeure shall mean any cause beyond the reasonable control of either Party, including,
without limitation, failure, or imminent threat of failure, of facilities or equipment, flood,
freeze, earthquake, storm, fire, lightning, other acts of God, epidemic, war, acts of a
public enemy, riot, civil disturbance or disobedience, strike, lockout, work stoppages,
other industrial disturbance or dispute, labor or material shortage, sabotage, restraint by
court order or other public authority, and action or nonaction by, or failure or inability to
obtain the necessary authorizations or approvals from, any governmental agency or
authority, which by the exercise of due diligence it could not overcome. Nothing
contained herein shall be construed so as to require the Parties to settle any strike,
lockout, work stoppage or any industrial disturbance or dispute in which it may be
11
involved, or to seek review of or take an appeal from any administrative or judicial
action.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed this 23 day of April , 1998.
C.
WEST TEXAS MZJNIWAL POWER AGENCY:
WINDY N, MAYOR President', 6t oard of Dire
ATTEST: ATTEST:
I (Jftt"" --- - , - f t 5; Z�;-' �
Kayt Darnell, City SecretarySecreta
APPROVED AS TO CONTENT:
LL LUMW
? / //TzV,,/302r, -
—
Paul Thompsoil, Managing Director
of Electric Utilities
APPROVED AS TO
Richard K. Casfter, Natural Resources Attorney
final2-powercapagr-wtmpa.doc
April22, 1998
12