HomeMy WebLinkAboutResolution - 032378C - Supplemental Contract - Standefer & Gray, Inc. - Amend Lease Agreement - 03_23_1978BE 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 a Supplemental Contract between the
CITY OF LUBBOCK and STANDEFER & GRAY, INC., attached herewith
which shall be spread upon the Minutes of the Council and as spread upon
the Minutes of this Council shall constitute and be a part of this Resolution
as if fully copied herein in detail.
Passed by the City Council this 23 day of March , 1978
"l
/ j ag _
TOY BASS, MAYOR
ATTEST:
Treva Phillips, City Sec tary-Treasurer
APPROVED AS TO FORM:
01, 12�
Fred O. Senter, Jr. City Attor
SUPPLEMENTAL CONTRACT
THE STATE OF TEXAS X
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF LUBBOCK X
THIS CONTRACT is made and entered into this 23 day of
March, 1978, by and between THE CITY OF LUBBOCK, a home rule
municipal corporation of Lubbock County, Texas, (hereinafter
called "CITY"), and STANDEFER & GRAY, INC., a corporation existing
under the laws of the State of Texas, with its principal offices
at Lubbock, Lubbock County, Texas (hereinafter called "COMPANY"),
each acting herein by and through its respective Officers
heretofore duly authorized.
W I T N E S S E T H:
Heretofore, on the 1st day of April, 1968, the Parties
hereto entered into that certain Lease Agreement, a copy of which
is attached hereto and marked "Exhibit A" for reference. Said
attached Lease Agreement has a primary term, as set forth in Article
XII. 1 thereof, which terminates on December 31, 1990, or subsequent
thereto after five (5) years notice in writing to terminate has
been given by either Party. And, it is the desire of the Parties
hereto to extend the primary term of such Contract dated April 1,
1968, as hereinafter provided.
NOW THEREFORE, in consideration of the mutual agreements
and the considerations of the terms, conditions and covenants to
be kept, done and performed by the Parties hereto, the Parties
do mutually agree and contract that Article XII.1:. of Exhibit A,
is hereby amended to read as follows:
ARTICLE XII.1 TERM OF CONTRACT
Notwithstanding any other provision of this Contract,
the term of this Contract is from the date set forth
hereinabove until December 31, 1998, and thereafter until
a date five years (5 yrs.) subsequent to written notice
of termination of this Contract by either Party. A five
year (5 yr.) termination notice may be given by either
Party to the other, at any time subsequent to December 31,
1993. Notice is to be transmitted by registered or
certified mail with return receipt requested.
PROVIDED, HOWEVER, that the above Amendment is conditioned
upon the following two (2) contingencies:
(A) That a sewage effluent pipeline contemplated
to be constructed with funds derived from a grant from
a U. S. Governmental Agency and extending from the
present City of Lubbock sewage disposal system to the
North boundary line of the proposed research and develop-
ment tract of land consisting of approximately four
thousand (4,000) acres lying immediately North of Wilson,
Lynn County, Texas, is constructed;
(B) That Mr. and Mrs. J. E. Hancock, their heirs
or assigns, have executed a Contract whereby said four
thousand (4,000) acre tract referred to in Paragraph (A)
above, shall be obligated to and used for the purpose of
environmental and crop production research and disposal
of sewage effluent thereon.
WITNESS OUR HANDS and seal of office the date first herein -
above written.
-ATTEST:
ity Secretary
ATTEST:
Cif Jr
djll
S c etary
THE CITY OF LUBBOCK
By:
ROY ASS, Mayor
STANDEFER & GRAY, INC.
J. FRANK GRAY, Pr dent
-2-
SUPPLEMENTAL CONTRACT
THE STATE OF TEXAS X
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF LUBBOCK X
THIS CONTRACT is made and entered into this 23 day of
March, 1978, by and between THE CITY OF LUBBOCK, a home rule
municipal corporation of Lubbock County, Texas, (hereinafter
called "CITY"), and STANDEFER & GRAY, INC., a corporation existing
under the laws of the State of Texas, with its principal offices
at Lubbock, Lubbock County, Texas (hereinafter called "COMPANY"),
each acting herein by and through its respective Officers
heretofore duly authorized.
W I T N E S S E T H:
Heretofore, on the 1st day of April, 1968, the Parties
hereto entered into that certain Lease Agreement, a copy of which
is attached hereto and marked "Exhibit A" for reference. Said
attached Lease Agreement has a primary term, as set forth in Article
XII. 1 thereof, which terminates on December 31, 1990, or subsequent
thereto after five (5) years notice in writing to terminate has
been given by either Party. And, it is the desire of the Parties
hereto to extend the primary term of such Contract dated April 1,
1968, as hereinafter provided.
NOW THEREFORE, in consideration of the mutual agreements
and the considerations of the terms, conditions and covenants to
be kept, done and performed by the Parties hereto, the Parties
do mutually agree and contract that Article XII.l.. of Exhibit.A,
is hereby amended to read as follows:
ARTICLE XII.1 TERM OF CONTRACT
Notwithstanding any other provision of this Contract,
the term of this Contract is from the date set forth
hereinabove until December 31, 1998, and thereafter until
a date five years (5 yrs.) subsequent to written notice
of termination of this Contract by either Party. A five
year (5 yr.) termination notice may be given by either
Party to the other, at any time subsequent to December 31,
993. Noticr: is to be transmitted by registered or
certified mail with return receipt requested.
PROVIDED, HOWEVER, that the above Amendment is conditioned
upon the following two (2) contingencies:
(A) That a sewage effluent pipeline contemplated
to be constructed with funds derived from a grant from
a U. S. Governmental Agency and extending from the
present City of Lubbock sewage disposal system to the
North boundary line of the proposed research and develop-
ment tract of land consisting of approximately four
thousand (4,000) acres lying immediately North of Wilson,
Lynn County, Texas, is constructed;
(B) That Mr. and Mrs. J. E. Hancock, their heirs
or assigns, haveexecuted a Contract whereby said four
thousand (4,000) acre tract referred to in Paragraph (A)
above, shall be obligated to and used for the purpose of
environmental and crop production research and disposal
of sewage effluent thereon.
WITNESS OUR HANDS and seal of office the date first herein -
above written.
THE CITY OF LUBBOCK
ATTEST: By: /Sfi
ROY MASS, Mayor
City- Secretary
ATTEST:
q4,-, &�'-
cretary
STANDEFER & GRAY, INC.
BY:
"J. FRANK GRAY, Pre ent
-2-
in
LEASE AGREEMENT
THE STATE OF TEXAS X
X KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF LUBBOCK X .
THIS CONTRACT made this day of b� , 1968, by and
between the City of Lubbock, a home rule municipal corporation of
Lubbock County, Texas (hereinafter called "CITY"), and Standefer
& .,-a corporation existing under the laws of the State of Gray, Inc
;"'Texas, with its principal offices at Lubbock, Lubbock County, Texas.
(hereinafter. called "COMPANY"), each acting herein by and through
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respective officers -heretofore duly.authorized.
W I T N E S S E T H T H A T
That the CITY'and COMPANY hereby mutually agree that for and
- in consideration of the extension of the terms of that certain lease
contract dated April•2$;:.1960, executed by the parties hereto, and
the additional consideration of the terms, conditions and covenants
to be kept, done and performed by COMPANY, CITY does hereby lease'
;the lands hereafter described to the.COMPANY for a period beginning
at the date hereof and ending on'the 31st-day of December,.1990,
subject .to the termsconditions and covenants to be kept,'.done'and
performed by the. parties hereto as,follows
:ARTICLE I.
The land herein leased consists of approximately four hun
'dred seventy (470) acres of. land, described as follows: -
Being all of Section 1, Block B, Lubbock County, Texas,
except the areas used for highway purposes and except
that part of said Section 1 owned by J. Frank Gray and
Wylie Hudman;iand .the Southwest One -Fourth (SW 1/4) of
Section 2, Block B, Lubbock County, Texas, except that
portion thereof containing about fifty-three (53) acres
lying North of the Fort Worth & Denver Railway Company
right of way; and all of that part of Section Eleven (11),
Block B, owned by CITY and described as follows, to -wit:
BEGINNING at a point in the Northwest corner of said
Section 11;
THENCE South along its West line 1427 feet to a point;
_ THENCE East 1176 feet;
THENCE North 427 feet;
THENCE West along the North line of said Section 1176
feet to the Place of Beginning.
"EXHIBIT A"
�,-7
I,1 the purposes for which the , lands herein are leased is •declared'
to be for agricultural and livestock purposes and any other contrary:'`:`':
use thereof shall, at the option of CITY,iterminate this lease.:.,
I.2 The consideration to be paid by COMPANY shall be 'a cash rental:;-:''
of $3.00 per acre per year for all .lands now in cultivation or•that may
•be placed in cultivation by COMPANY. and it is agreed that $1,4•10.00 per-;.
year is the a reed.annual rental to be' ''"`"
• g •• paid to. CITY by COMPANY .here-'•� "
under. All rentals shall be' payable -on the 'first 'day 'of January of
each year, beginning January 1,- 1969. Any installment of rental not
paid at the 'due date hereof, shall bear interest from said due date
until paid, at the 'rate bf eight per. cent .(8.%) per .annum. If COMPANY
fails to pay'the rentals when due within sixty (60) days' after. demand
writing and delivered to COMPANY. by. registered or certified 'mail. -
(,with receipt requested) CITY. may at its option terminate 'this' 6. ree'
.
ment.
ARTICLE II
ii.1 Lt is understood that the City of Lubbock's Sewage'Treatment Plant
is presently aocated and situated on the above • described land and the
City. reserves. the' right :to maintain, expand; operate,* change and alter
.:. .saidplant or abandon or discontinue using the present sewage 'treatment
r plant and*to construct :and maintain a sewage treatment plant of equal
or greater capacity.' at -another. location in lieu of operating and main-,
taining the sewage plant constructed or to be constructed in the
Northwest corner of, Section.l,-Block B,. and the City agrees to pump
all of the effluent from the 'present plant or additions thereto:or.plants
constructed in lieu of this plant into. the existing earthen storage
'.reservoirs now presently supplied fxom the existing plant at the expense
of tze City, less and .except such parts or portion of - effluent .that :
the City may sell to -industry and other recipients. (specifically
e:�cluding sales of effluent for agriculture purposes) and that effluent ,
City may use 'for its own purposes as hereinafter provided. Sew-.-:'. '
age affluent produced at sewage treatment plants at locations more
:.hail 5280 feet from the Northwest corner of Section 1, Block B, is
specifically excluded from this contract., The•City agrees no indus-„
Page 2. z`; NI
trial users of effluent supplied f rom the plants in the'Northwest corner
of Section 1, Block B, shall be supplied from other sewage treatment
plants with the mutual consent of the. parties hereto. As a part
of the consideration hereof company binds itself to accept such sewage
effluent at the earthen reservoirs referred to above 'and those reservoirs
which may by agreement of the parties hereto be'constructed in the future.
And the COMPANY further agrees to properly distribute .such'effluent at:
Its expense onto the lands herein leased and the'lands now owned by'J.
.—Frank Gray and Wylie Rudman, which 'lands have been leased to "COMPANY "'.`t` .1
from said J. Frank Gray and Wylie Rudman as shown by the Lease attached'•:..'.'
hereto as Exhibit.." A" . It is further. 'agreed' that..when necessary,- .due' .•.
to extended wet or inclement weather., or any other. reason, the 'COMPANY
may., in order to comply with. its obligations hereunder., provide. timer- ;•.! ;; `'
enc storage facilities at its own cost and ex erase
•9 Y g P ,• and does hereby'
covenant with .C.ITY to exercise care to. prevent such effluent from
draining. into t:ie 'Yellowhouse :Canyon or onto lands not .covered by this•.
Y`.:.Lease or,to.lands not owned or controlled by. COMPANY, unless otherwise'
permitted by the 'owner -or owners :of such .land given in writing, which
:.; shall"be'subject :to all of the terms, conditions and covenants contained..;
in this Agreement.. COMPANY does further covenant with CITY to handle,
distribute and/or store and to. otherwise dispose_of such 'sewage .effluent...
upon such .ands as aforesaid including the .lands covered by said'Lease,
or under control of CITY in such manner as not to substantially increase.:
the'density.-of odors. emitting therefrom, or from spreading and :causing -
:additional discomfort and annoyance 'to nearby inhabitants, and not -to
use or suffer. to. be used such effluent in such a manner. as to constitute `
a nuisance, when and after the 'same is placed on said lands and to keep•
and maintain all premises in such condition as to conform with all State•.
and local health regulations, whether. now -or hereafter. established by the
State law or promulgated by the State Department of Health,.provicled3. how
ever, that such effluent"is de liveredto the reservoirs herein referred°'
to in conformity with such regulations and laws.
I1.2 COMPANY further agrees that upon receipt of written notice,.
authorized by the governing body of
is operating due to its.negligence
State or local health regulations,
tion in a reasonable time and to d
the City of Lubbock, that COMPANY
a nuisance in violation'of said
to correct and abate such condi
o such, things as may be 7^`
Page 3.
v
�pointed:out .in.writing necessary to correct and abate such .condition.-
If. such effluent should drain into the. Yellowhouse Canyon through•. C.
negligence -onithe part of Company or off the -described lands onto
other lands_, -or if effluent should be'allowed or permitted to become`.
a •nuisance..on 'account of the manner in which 'the COMPANY handlesor•
fails to handle said effluent and is allowed to. remain in such .con
dition without -abatement for an unreasonable time after -notice in';.•g:y;,;:;.;,�
writing to COMPANY, or if such sewage effluent should be handled,
:• distributed or stored in such.a manner as to -increase the density
o -the odors- emitting therefrom or spreading so as -to cause other
than normal' annoyance and discomfort to nearby inhabitants' the - CITY
`may, _after written notice, terminate .this•contract.. The proper '
spreading; .storage.or' use .of _the effluent'as delivered.by.'the'CITY
shall not be -•construed as a nuisance- under: the. terms -of ,thi:s--con--
'
a
ARTICLE III.:—
III .l City •retains Nand reserves the 'right during the.. ter xi . of .4
his
contract,: if it should elect, to use.any part.of -the'lands owned by
' t along.the Yellowhouse'Canyon rim, for the' establishment and en- P
largement of: the •'.City. Dump ground for the disposal of trash -.`and; gar
';. bage hauled from the .City., and to excavate where necessary in the r
opinion of -CITY to.•provide more volume for disposal of such,trash
.4
:=and garbage, together. with necessary road and roads for ingress and
=: 'egress and necessary utilities. to and from said dump ground ,and. over::.:,
and across said land to. accomplish'the intent of this reservation
'It further. _reserves the 'right to construct 'housing and living,
'
quarters 'sufficient to accommodate City employees engaged in the
maintenance *and operation of the dump grounds, provided, however,
lupon the.exercise''of such 'option CITY will', at its own cost and
expense,. replace 'to the use and benefit of 'COMPANY a like .amount
of land refilled, ledelled andl�terraced in the'same'manner as that .._
land so taken for additional dump ground hereunder.and•CITY wi l
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also make effluent available 'at the highest point on such �.-substituted
land. .�
ARTICLE IV. -
IV. I COMPANY by these prsents obligates. •itself to take good care ::;-'•: 1
of and cultivate. the lands -leased to it hereunder in a' good•, farmer-!'.'`:'
like* manner and not to make 'or suffer to. be made 'any alteration or
waste .that would be injurious to said land. -
IV. 2 COMPANY shall not, -without the written. consent of CITY,
assign this •lease• or sublease 'any part of the 'above leased land and
should said COMPANY" ttempt to assign this lease or.`sublease *any or
all of theabove. described land, then and in"that event;. this. -con-
tract -shall, at .the .option of CITY,-. terminate: As to all parties and
be of no further .force and effect.. '1, ;
IV.3 At -the termination of this Contract,*COMPANY shall return
the land and leased improvements and surrender. the 'possession thereof...:--:--""-F
to 'the' CIT' -in as, good condition as when received, ordinary wear and::
tear excepted.:'
.IV.4. 'It. is agreed that COMPANY shall- have the right upon termin
ation of this 'lease' contract to remove•from.thd"above described CLty
lands, -.any improvements that may have been placed thereon by it, in
cluding fenc2's• ,xcept`outside boundary ferices,.the two fences Sep
arating -the .cultivated lands from' the canyon - or pasture 'lands,. and:.�_`�
fences. around the'sewage plant.
IV.5 •• Should .the COMPANY during the life :of this contract fail
.refuse .to. keep and perform any of the 'covenants •or conditions ' of
the same 'at the time and ihithe manner stated, CITY shall have the
right to enter into'said premises and take possession thereof without
notice or demand'- except as: here in` provided, and without being guilty.::...;
of trespass' and- ithout• prejudice••'to any other. remedy* the CITY may
have:
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' •.!'•, .. -• N�,.�. '. •. ,- is-; ,
r..
!ARTICLE V.
V.1' It is mutually agreed and understood that the above described*
lands owned by CITY are possessed by. the CITY for the primary purpose_.
of operating the City Sewage Disposal Plant,:and any other plants.''' "_-
:'
that may be :constructed for this purpose,: and for the 'additional
purpose of.disposing of City sewage, and it is the. primary. purpose':;`'''
of this lease'and contract to arrange 'for the .continued disposal
of City sewage effluent -in order to further. safeguard the health . _.
of its inhabitants, by providing for the above method'of effluent
:...'disposal and care,. and that .the leasing of such :land by the CITY
to COMPANY for agricultural purposes. -is merely incidental to. tlie*
CITY's ownership and this lease.'is. made .primarily for the 'purpose
of affording additional facilities as hereinafter.defined and man
= agement ,of effluent emitting.'from the City.'s sewage disposal 'sys� -
tem and the cons.ideration'herein agreed to•be .paid by CITY as
Lessor herein, .is in consideration of the services to be performed
;.by COMPANY,.as Lessee herein, in handling, caring for and disposing
:of all CITY effluent delivered to reservoirs by. CITY and,the taking
.thereof by.COMPANY,in-non-constant quantities, ,all is. is .'anticipated
and provided for in this contract..-
V.2 This Lease and Contract is .executed subject .to all of the
rights. of. the City. of ,Lubbock which :it has in said lands, and •sub
jest .to the terms of any oil..and gas 'leases inexistence;:or to be r
executed1by. the 'City. of.Lubbock affecting such .lands..
V.3 It is further. agreed that. if 'the effluent is delivered .to;.;a,`
'.
the reservoirs -in such condition that the maintenance of said•water.=:`,:'`;
in said reservoirs or the distribution Thereof creates a nuisiance
or it becomes toxic to such an extent that injury would.result to` .'
the land upon which 'it- is spread or make �it impractical to :use as
irrigation for. agricultural products or toxic .to livestock, then;-
in either eVen�;'COMPANY may terminate.this.contract after"giving
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written' notice .to' CITY to correct or remove the conditions causizig
same.,
ARTICLE VI
VI.1 Notwithstanding other p-avisions of this agreement it
agreed that a breach by. COMPANY of,any obligation arising, hereunder:'
- - shall not -work- a. forfeiture or terminate this lease or contract • or •.,�,,;,,
cause - the same" .to *be 'terminated nor be grounds forcancellation hereof : +.•'``
in whole or in part except as herein provided.'. In the event.CITY =:.
considers the .'COMPANY is not .complying with :the terms of this con-
'::..tract,- CITY 'shall notify COMPANY in writing of the facts relied 'upon:.'.
as constituting a breach hereof and COMPANY, if in default, shall,
have a reasonable 'time., not exceeding one hundred fifty (150) •days
after the redeiQt• of *such •notice, -.in ,which 'to comply with the obli
gat* hereunder'..as they may have been pointed out in writing as_
••af.oresaid
?..:ARTICLE. VII r ^, .
it is -anticipated that COMPANY will'install or..
cause_.t6 bd"Installed underground.pipelines to convey the effluent -
is
upon lands; under -its. --control; hence, it is -agreed that in such event,
and if this contract is 'terminated before the term hereof, that ..the
`CITY will pay'to:COMPANY for such .pipe which will be depreciated
so far as 'this. -agreement is concerned at .the rate .of five .per;'cent
(5$) per year upon its.costs, and that -after applying such depreci
ation, the .CITY. will pay to the, COMPANY, its. successors and assigns,:.;;
a'suis equal.to one-half• (1/2). of the remaining cost thereof,' provided
such pipe 'is in a good state of repair acid COMPANY. has filed written .;' ..
statement with :the City. Engineering Department showing actual cost:`
of pipe 'and its. -location.,
VII.2 . ' ''It is 'further. agreed that CITY. reserves. the right to con-....
struct necessary utility. lines and pipelines:; in, above 'and below =;
the ground at any location on CITY owned land, provided -it does not
Page .7.,�
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interfere with the orderly operation by. COMPANY of its.efflue'nt•die-:,
posal system,and subject to.paying reasonable crop damages to.
agrees to furnish .at commercial rates-:
COMPANY, if any occurs. CITY .
and COMPANY'agrees to use and timely pay for electric power. used.'
and to be used in connection' therewith•.: .
VII.3. It .is agreed the CITY will at its. own expense; maintain four
(4) eighteen-inch..(18 in.) outlets. -in the lagoon.:reservoir consisting-!�4
of approximately twenty-three .(2,3)' acres.; and CITY. will provide and
maintain at its own .cost two .(2). pumps ca able 'of . p pumping.thirty
five hundred .(3.;500.)., gallons of effluent per. minute at a head of. =
twenty-five.•.(25) feet:. In the 'maintenancelof. the 'two. pumps, the.. �t
CITY. will keep installed and maintained the* .pipe 'from the•reservoir
to the -intake -side of the pumps and provide valves at* this point and
COMPANY will take :the .effluent from the output side of the two pumps
and at -COMPANY'S cost 'provide and maintain pipe,: valves and 'other
\-appurtenances'necessary to, carry effluent.from the output side.,..In
the .event of any default by: COMPANY. or its. tenants.; agents,`, servants
or authorized assigns, the right to take effluent as provided in this`.
--paragraph *shall- cease and terminate..
VII.4 It is further agreed that in the eventthe CITY ever abandons
the use of the :twenty-three (23) acre reservoir constructed by the
CITY upon Section 11; Block B, owne'd by.. J.- Frank .Gray and. Wylie
S.Hudman for.the purposes bf effluent storage, whether at the end of.
:.�
the term of this contract, if terminated previously thereto, then
CITY shall level.the surface of.said reservoir and place 'it in a
condition} suitable for agricultural purposes at CITY'S expense.:.
ARTICLE VIII.
VIM 1 It is:mutually conceded. and agreed by the parties hereto
that COMPANY has for -many years contracted for and has satisfactor=
-ily disposed of all of the. 'CITY effluent resulting in a financial
' benefit to CITY in that the CITY has not been compelled .to construct,
maintainand operate 'additional facilities and sewage disposal and
treatment. plants.-. The'CITY recognizes. that as.a result of this
i Page •8 /,
satisfactory contractual arrangement between CITY and COMPANY for
many years heretofore that.CITY'S effluent has been disposed of
at less cost to CITY than any other city in Texas experiencing the
same growth and population increase. CITY further recognizes that
COMPANY has expended large sums of money and -made extensive capital.
investment upon the lands owned by J. Frank Gray and Wylie Hudman
and upon other lands leased and controlled by said land owners,
in order•to adequately dispose of the CITY effluent during wet and
inclement weather, and particularly during the winter months when
' such effluent is unsuitable for agricultural purposes.
VIII.2 It is mutually agreed by the parties hereto that CITY may
sell and deliver to any other -firm, corporation, partnership, associ-
ation or individual, for industrial use, City•effluent upon such
terms and conditions and for such price as it may determine, and
further, that CITY may take,,.use and divert CITY effluent..for its
own uses and purposes during the term of this contract and upon the.
following terms, provisions, conditions and payments to COMPANY,
to -wit:
VIII.3 RATE AND PAYMENT
For and in consideration of the sewage effluent water to
be sold by CITY under the terms of any contract, executed with
Southwestern Public Service Company, Amarillo, Texas, or any other
person, firm, partnership, corporation or association, herein agreed
to for industrial purposes, or for effluent diverted by the CITY
for its own use and benefit, as contemplated by this contract,.the.
rate per one thousand (1,000) gallons of effluent so sold or used
is to be paid each month by CITY to COMPANY as follows:
A. CITY'agrees to pay COMPANY an amount equal to one cent
(10) per one thousand (1,000) gallons of constant flow
of City effluent as hereinafter defined and two and
one-half cents (2 1/20) per one -thousand (1,000) gal -
Ions of demand flow as hereinafter defined. -•'r:`
Page 9..
B.. "CONSTANT. FLOW" shall be defined herein as -the average-
.
.. : daily flow .df; effluent delivered to. all recipients, =
r including the City. of Lubbock,. and other.. than COMPAN*Y,;:''•
computed on the minimum weekly flow Hof a• contract year
hereunder'.. t
C.. "MINIMUM WEEKLY'FLOW" shall be defined herein. as the
smallest number: of gallons of effluent delivered to
all recipients, including the City of L•ubbock,. b%it•ex `
eluding COMPANY, during.any one week in a contract .year:'".
D: : "A CONTRACT.'YEAR". shall be defined herein * as each 'success
ive 'twelve: --month *period beginning on the effective date"
-of this contract and ending on -each successive'anniver
t sary date. during the terra hereof.
E..'"."DEMAND -FLOW". for purposes. of this .agreement shall be
defined as. -all effluent furnished to'all recipients
including the .City. of Lubbock,. excluding the COMPANY,
in excess. of the constant flow hereinabove'defined.:
VIIIA All payments. due -COMPANY hereunder:_ shall be. finally: cal.-
culated' As of the .end of each .contract year as - defined above. • -.
� Provided,•hdwever, such payments'shall be made in twelve .(12) equal
monthly.installmerits during such contract year.. The. anticipated
amount. bf.the monthly payments shall be•agreed.upon in advance by
the .parties:'hereto..and shall be 'substantially equal to one -twelfth
(1/12th): of the anticipated annual -payment due COMPANY It is.
:
:-`-understood in this xegard that good faith be :exercised.by......._•..
-the parties in arriving at .the amount of the monthly.payment.and
due consideration shall be 'giver: to past annual payments hereunder;
it is further agreed that.during the first .contract year an.esti=
mation.will be kade.by the parties of the probable constant flow:.
end the probable''denand flow,-tiking into consideration the -projected
usage'•by: industxial•,or other. recipients; including CITY,._of.effluent;'.
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and an annual payment will be projected therefrom and one -twelfth
(1/12th) of that projected payment will be 'made monthly to 'COMPANY...:.-,?`
Such monthly payments shall be made on the 'first. day of each 'and ".•', ..� :.
every month: .
Within thirty. (30) days after. termination of each contract':::'
year during the term hereof, appropriate'.calculations based upon
,.
metered effluent flow will be made by. the .parties hereto as to 'con
stant. flow (as herein defined) and demand flow .(as herein defined) '• •;::.:.'j;
cf effluent not delivered to COMPANY during the prior contract year
as well as the .payment due -and owing COMPANY under.•the.payment terms
hereinabove provided.: If it be determined that the estimated monthly•
"payments :theretofore paid by. CITY during the 'prior contract year.'was:
-less than the calculated.payment due -COMPANY as herein provided; then:
F
" CITY agrees to pay COMPANY such deficiency within seven (T) hays:
In the -event it be Uetermined that the .estimated monthly payments
theretofore paid COMPANY by CITY exceeded the .calculated payment
due COyiPANY as •_herein. provided; then such'overpayment will be ad-
justed by subtracting•such'overpayment from the first monthly pay
-
us due COMPANY during the foliowing.contract.year.'
ARTICLE 'IX.
IX.1`' 'MEASURING EQUIPMENT-7AVAILABILITY OF CITY RECORDS TO COMPANY -
It shall be .the responsibility. of CITY at its. expense -to
install and maintain a controlrsystem for the purpose of making
satisfactory delivery of effluent to all recipients, including CITY,;
• other'than COMPANY, and to meter the :daily flow thereof by a. master:_--:;
::,meter of standard type 'for properly measuring the flow of water or.:' `.
a number of master'meters, as the CITY elects.. The unit of.measure-
ments for effluent'metered as herein provided shall be one thousand..*:.,-.•'
gallons (1.,000.gal.) of water, U. S. Standard Liquid Measure. COMPANY
shall have access. 'at -all -times to. such metering equipment, but 'the*.::::
' reading;calibration•:and. adjustment of the meters shall be done*
• Page 11. j
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only by employees or agents. of the.'CITY.. COMPANY will. be notified=' "•
when CITY plans to test or calibrate•any of its meters so that' -
..COMPANY may be represented if it so desires. The *CITY shall keep.
;;.,..'.' P P' �..=-�'....
:.a true record. of .all meter readings as -transcribed from'the reports
.of CITY'S employees or agents•with'respect thereto. Upon written'
request of COMPANY, the. CITY will give*COMPANY such information as- -
it may request, fromthe CITY.'S record books or journals or permit
. the COMPANY to have -access to the 'same 'in the office 'of the City t
during business hours.- -The *CITY hereby agrees to calibrate its
%metering equipment as -of teri as 1t considers necessary. and .at such.:
other time -'as COMPANY may show reasonable 'evidence of error in r>
such metering equipment.. In the event a meter. is -out of service':
or out of repair'so that the amount of effluerit-cannot be ascertained
or computed from•the reading thereof, the effluent flowing during c
•i
such period the meter. is out of service or repair, shall be agreed"
upon by the parties hereto, by correcting the error if the percent-
age:of the error is ascertainable by calibration tests or mathemati
cal calculations or by estimating the'quantity.'of effluent delivered
during preceding periods under similar conditions when the meter: was
registering accurately.'.
�. CITY agrees to furnish unto. COMPANY three (3) outlets on
the Southwestern Public Service *Company pipeline to be :constructed
from the City Sewage Disposal Plant to the Southwestern Public Service:.,:''
Company facilitiy,.at •locations to be agreed by the parties hereto,
in order 'to facilitate 'the disposal of effluent by COMPANY upon lands.
controlled by it.. It is agreed that COMPANY will not make demand
for delivery of effluent from such•outlets if it will reduce or make
impossible the delivery of the demand flow of effluent to Southwestern''
Public Service Company and other third party. recipients. CITY
further agrees that 'it will bend every effort -in negotiating `..
future contracts to'secure'authority with 'purchasers of effluent
- Page 12.' .
for -provisions of additional outlets for the benefit of COMPANY to
facilitate effluent dispersal and disposal.
IX.3
In order to facilitate the expedient and efficient disposal
of -City effluent by COMPANY on lands controllgd by COMPANY, the CITY
agrees to immediately give notice to COMPANY of all contracts for the -
sale of effluent to third parties, additional usage of•effluent by
the CITY for its own purposes, and the anticipated projected amounts
of.effluent to be sold or used by the CITY on a daily demand and
constant flow basis. It being recognized that such notice needs to
..be given as far in advance as possible in order that COMPANY may, ma
'.heces.sary adjustments in its effluent disposal program.
ARTICLE X.
X•1 -SALE OF EFFLUENT BY COMPANY
Nothing.contained in this contract shall prohibit COMPANY from
'i selling or disposing of any or all of the effluent delivered. to
to any' other -firm; person, association, partnership or corporation
for agricultural use. Stich sale shall be subject to all of -the other
terms and conditions and rights o= the CITY to sell effluent to third
parties or its own.use thereof. Provided COMPANY may sell effluent
-. ;
for other-purposes.with.consent of CITY.
ARTICLE XI.
XI.1
If for any reason CITY fails to: pay .unto COMPANY the monthly
payments as herein provided, then.CITY hereby agrees that the certain:
water lease contract entered into.by and between J. Frank Gray and
Wylie Hudman and the City of Lubbock on even date herewith shall,
at the option of J. Frank Gray and Wylie Hudman terminate if such
payment remains delinquent and unpaid after sixty (60) days from. _
mailing notice of such delinquency, without waiving any remedy at
law or in equity.
ARTICLE XII.
XII.1 TERM OF CONTRACT
Notwithstanding.any other provisions of this contract,. the
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term of 'this contract is from the date 'set' forth hereinabove until
December 31, 1990, ,and thereafter until either' party shall. give `
the other party five 'years :(5. yrs.,) notice 'in writing of its
intention to terminate 'the•'same�.' Notice .to. be .transmitted b
registered or certified mail with 'return receipt requested.
ARTICLE XIII. -
s' XIII.1 GENERAL PROVISIONS
It is agreed that all of the terms, provisions and conditions
•
of this contract fully supersede and cancel all- of the terms • condi—
tions and provisions of that -certain contract -entered into by the
parties hereto. on the'28th day of April,• 1960..
XIII.2 Where the Germs of this contract provide :for action to be
based upon the' opinion or determination of either party to this
contract, whether or not stated to be 'conclusive,: said terms
shall:- —"not be 'construed as permitting such action to be predicated upon
arbitrary, capricious, or unreasonable -opinions or determinations
' XIII 3°'::Any notice authorized or required by this contract shall
be 'deemed properly given, if mailed; postage=prepaid, Certified
Mail,- Return Receipt Requested, to the Office -of the tity. Secretary-..
of the 'City of Lubbock,' on behalf . of the 'CITY, and to. COMPANY. a -
Box 711, Lubbock, Texas.
XIII.4 In the event CITY should acquire 'title*to the 'Gray and
Hudman lands,.this contract shall- terminate..:
XIII.5 If 'any provision of this agreement be invalid under exist
- ;.: ing law or would operate 'underexisting law to render this agreement
unenforceable, then such 'provision, insofar as it is necessary to
render. this agreement enforceable under existing law, shall be '
deemed to be deleted herefrom and this -agreement in, all other.
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