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HomeMy WebLinkAboutResolution - 2009-R0271 - Suspend City Of Lubbock's Right To Give Notice Of Termination Of Contract - 07_28_2009Resolution No. 2009-RO271 July 28, 2009 Item No. 5.3 RESOLUTIO BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Manager of the City of Lubbock BE and is hereby authorized and directed to accept for and on behalf of the City of Lubbock, by her signature, the request by Southwestern Public Service Company, attached hereto as Exhibit "A," for the City of Lubbock to suspend for a period of two (2) years from the effective date of this Resolution, the City of Lubbock's right to give notice of termination under that certain Contract for Sale and Purchase of Treated Sewage Effluent between the City of Lubbock and Southwestern Public Service Company, a copy of which Contract and prior amendment are attached hereto as Exhibit "B," which letter and Contract 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. THAT all other terms and conditions of the Contract shall remain in full force and effect. Passed by the City Council this 28th day of July , 2009. TOM MARTIN, MAYOR ATTEST: Garza, City Secretary APPROVED AS TO CONTENT: L nn Dumbauld, City Manager APPROVED AS TO FORM: 11 Sat�Assistant City Attorney Resolution. SPS Contract 7/22/09 Exhibit A Resolution No. 2009-RO271 01 Xcel Energy Via Electronic Mail July 21, 2009 Lee Ann Dumbauld City Manager City of Lubbock P.O. Box 2000 Lubbock, TX 79457 David L. Eves President and CEO Southwestern Public Service Company P.O. Box 1261 Amarillo, Texas 79105-1261 Phone: 806.378,2109 Pax: 806.378.2995 Subject: Contract between City of Lubbock and Southwestern Public Service Company for sale and purchase of treated sewage effluent Dear Ms. Dumbauld, The City of Lubbock and Southwestern Public Service Company (SPS) are parties to a contract dated May 1, 1968, amended September 4, 1992, for the sale and purchase of treated sewage effluent. The term of this contract is 35 years from June 1, 1971 and thereafter until either party gives the other party three (3) years notice, in writing, of its intention to terminate the contract. As we have discussed, SPS is in the process of long term planning for future electric generation resources for the region. In order to allow time for this planning, SPS requests that the City of Lubbock suspend any notice of termination of the contract for a period of two years from the date of acceptance of this request. I appreciate your consideration of this request. I look forward to hearing whether this is acceptable to the City of Lubbock. Sincerely, David L. Eves AGREED TO AND ACCEPTED BY: CITY OF LUBBOCK, TEXAS Lee AW Dumbauld City Manager City of Lubbock P.O. Box 2000 Lubbock,TX 79457 Dated: July c6, 2009 Page 2 of 2 0:;i19/ZUU1 1U:;1u rAA OU0410eJ411 ';2/16/04 SON 09:41 FAX 7,18 4666 1694866 9 P S JOhB S STA 016 �10/06/B2 09:52 `r80© 378 2` PRODUCTION i->r 1 Z003 Exhibit B Resolution No. 2009-RO271 SOUTHWESTERN PUBLIC SERVICE COMPANY R a Box 1261 r AMAAlLLC„TEXAS 79170 • 806137&2121 September 4. 1992 kENRY }t liAMTON n�f!`'T. PFY. ucnoM Pir, Carroll HeDouald ASsiatant City ? a-nager of 7t: litfes City of Lubbock P_ 0. Sax 2000 Lubbock, TX 79A57 Dear Carroll, Enclosed is the Amendment to the Contra ct`for Sale and Purchaze of Treated Saw -age Effluent dated May 1, 1968 as ze negotiated w�-th. you. .ti If this Amendmene is accepted by the City of Lubbock, SPS agrees to the following: ?. Relinquish any C18Aims rhat it might have to recover money for ever- charge6 chat have not been resol-ed prior to 5epzemher 1, 1992, for Grater delivered under this contract. 2. Relinquish any rights to audit the City's cost records of sewer punt operazians_ If this Amendme-at: Ls sccQpred by zhe City of Lubbock, the City agrees za the fol-la -img-- i_ ReUngaish any claims it might have to recover money for =derclizrges that have not be•aa resolved prior to September 1, 1992, for Water delivered under this Coucract_ 2. To apply the rates of $0.4911 Der Ion &-a-uoa.a for water delivered in excess of constant f?oL atd Sa.k.731 for constant flora' for the period of June i to September 30, 1992,-%Ythout plant cost of operatio= ad= just=ent az.zhe end v£ the perk._ 3. To make best efforts tc meet Later quality stzndards of the contract durinz the period October 1, 1992, to December 31. 199dL, even rhou�h the zenslv5es are reduced during that perio8._ ACCEPTED_ CIl'Y OF LUBBOCK MMMSTEM IDBFC SERVICE {:OHPANY w llezl-'�e Carroll. McDomaLd 13 H_ Hamilnoa Assisramt Cfr,y M=aZar of Ut ].hies 11017 •'02/16/04 YON 09:42 FAX, 748 4866 169466E S P S .TONES STA 110/05/92 10:00 $90B 378 �r PRQDUC_TION I Contract: P095 1 Resolution No. 2009-R6271 REMMTON 444 ,WS 2004 Resolution No. 3979 September 24, 1992 Item ff34 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 execrate for and on behalf of the City of Lubbock an Arnendrrent �y to the Contract for•Sale and Purchase of Treated Sewage Effluent between the City of Lubbock and Southl,restern Public Service Campany, attached herewith, which shall be spread span 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 coded herein in detaSi_ Passed by the City Council this , r AL G�1`.-'T' 1 1 RanetLte. Boyd, Glty APPROVED AS TO CONTENT: I tarrUi i MGUOnaIQ, I+s `Manager af.,Uti1{ties APPROVED AS TO FORM: Assistant City Attorney LAIDV!WAGMWjL—MA-SPS.M Sep=Mba la, I942 STA OZ/16/04 MON 09:42 F.AX 748 4666 1094666 S P PRODUCTION ON 11o/05/92 10:00 la$0d 378 Resolution No. 2009-R0271 rvntruct: 9095 Zc18 �a S Z 005 Resolution No. 3979 Sepreutber 24, 1992 Item $34 Tbh Amendment is made and enured into this Zst day of October, 1992, to. the Coatmct for sale and Prclz--j-- of Treated Sewage Effluent dated hf3y 1, 1g68 (tie °Agceernenv j between the Crf'Y OF LUBBOCK ("LubboI gad SOUTRWF—S ERN PUBLIC SM%7CE COMPANY ("Company"). wUtua1 benefits to be obtained .the -City and. the +Cb a�=xe+e-t0 2lncnd tie Abreetnert as follows 1. ARMIX In - FA EA MPAI 'T shalll he deleted in its mdrety and replaced with the following: ARTICLE W - RATE AND PAY N'T 3.1 Coinpany shall pay City the: followiog total price per one thousand (1,QW) g400s of sewage effluent water delivered by City undar the te= of this Agreemeat (a.) Thirty -Six cents (.35C) per one thousand (1,000) gallons for the first One billion four h=dred forty million (1,440,0W,000) gallons delivezed each aonrraci year. (b.) Twenty-five e=[s C-251) per one thousand (1,4Q0) galious in owes of one billion four hundred forty ndMan (1,440,000,0W) gallons delivered each contact year. 3-2IleBase Rates per one thousand (1,Ch00) gaUow of sewage effluent water set f0�th in$eC09a 3.1 sW be adjusted for the contract year commencing October-1, 1993, and aunuraRy th mmfter (Annt:al Adjustment Daze) as fallc)ws: to Adzustm:nts R = AC-5-4 f SR) C E ..'02/;6/04 MON 09:42 FA% 748 4886 1894688 S P S JONES STA aoia 0/05/92 10:01 $808 378 r4W3 PRODUCTION ►.s��5 �4QaB Where: A - each base mw clxgcd fb-r sewage efflumt water in the ym preceding the Annual Adjustment Dat (A=ual Adjustment Year). B = the weighteti avzr�e cost per know= hour of electnc energy deibmcd try SPS to LP&L dung the Annual Adjustment Year - to C = the weighted average cost per kilowa#t hour of elan-ic energy - del.iverW by SPS fu LP&L dating the year lmmed&-aely ping the Annual Adjusmteat Year. D Co=mer Price Xndex Revised,=Uri .Wage Fznim and Clerical _ Wdrl� (CPr *) fbr the Anauat A.d utmeat Year as published in S.epteuaber. f.. E = the CPI-W for the year immediately preceding the Annual Adju=cn,t Year as publisbed is Sepwmbes_ R = the Adjusted Rate_ 3.3 If the City deliv�,:ts sew e€Iluent water that fails to meet the quality standards se faith ist ACiyTi - 9UA, th,e fallowing rates and p=ald s will apply: (a+) For Z sewage effluent water delivered by the City that has a pH lower than, 6.0 or higher than 9-0 as deted by grab sample or continuous monitoring by the Company at the Delivery Point the Company will only pay the City a total price of one neat (1;) pef one thousand (1,o00) gallons. (b.) For 2E sewage effluent water delivered by the City on c� before ]member 31., 1994, that fails to conform to the gtrality standard for susperided solids (SS) or biochemical oxygen demn=d (BOD) set forth is A.R M-CLE VII - OU6L , subparagraphs b. and d., except that such samples shall be taken at the City of Lubbock Wastewat= Txeaunent plauf's effluent sump, by 24-hour composite sampling, analyzed by standard methods in the City's laboratory, and as repartd to the Texas Watt= Commission, the fallowing pesczntage penalties shall apply to induce the Base Rates or Adjusted Base Fates thea in effect: S5 or Bt7D Aesraity 45-50 Rpm 1.0 % 51-55 ppm 20,719 56-60 ppm 30 % 61-70 ppm 50% 70 + ppm 1007.1 7 _ 020 y'02/]6/04 DfQN 09:d2 FAX 748 4666 16"'666 S P s Qo`1ES STAL 10/oS/92 10:01 $806 375�8 PRODUCTION 4-+ s ®007 (c.) For all sew e efflumt water delivered by the City on or after Ianuary 1, 1995, ttaat fails to conform to the quality standard for suspender! solids (SS) or biochemical oxygta demand (BOD) set forth in AR.TICa VII - DU'AiiXY, subparagraphs b. and d., except that such samples shall be taken at the City of Lubbock Wastewater Treatxleat plaof s effluent sump., by 24-hoax composite sampling, analyzed by standard methods in the City's Iabcratory, and as reporW to the T=s Wager Commission, the following pwc- ntade penalties shalt apply to reduce the Rsze Rates or Adjusted Base %ates them in effect: M 25 30 ppm 10 % 3135 ppm 36 46 Ppm 30% 4I 50 ppm 50% 50 + ppm I e (d.) For all sewage effluent Watar delivered by the City oa or afar 7anmry 1, 1995, that tails to c nfom to the quality standards for residual chlorine set forth in ART[CTd'E VT — OVAL , subparagraph c., a 50% peria'cy will apply. (d_) If sewage effluent water delivered by fhe City faRs to conform to more than one of the qualify standards set forth in ARMCLF- vil - OUAI,rry, the penalty that reduces the price the greatest amount will apply. However, the a=tmt of the penalty sbsti = exceed 1007. 2. RTILEE Y • �t GfiARGE shall be deleted in its entirety and replaced with the following; AR LCLEF - M 1-1, vIITM IA� R 5.1 The quantify of sewage affluent waW deliveredd and a=pted shall at all tunes be within the coutrol of the Company; provided, however, the Company shall take and pay for or pay for if not taken a minimum of one bUHon fc= In m red forty millioa (1,440,000,0M) ,gallons cash umtract year from and after O=hcr 1, 1992_ The Company shall pay the raze specified in this Amendment far the qu2ntiV of sewage effluentwater used and the same rate for the zem4ndar of its mkfetum quaadcy obligation. However, if the Company demands and the City is unable to deliver due to form majeure at least severs nMon (7,000,000) gallons a day, the Company's rnirrmmwn obligation (I,440,OQ0,000) for the year shall be reduced by the amount of gallons up to seven air ion (7,000,000) gallons for each day that the Company demands and the City is unable to deliver that quantity unless the My provides other water that meets the minimum quality standards set forth is AMCLE VIT - O AT..TIT If the City makes other watrr ava7able for delivery that satisfies both the quaUry and quantity requirements e 5 P S SONES STA _ _ C� 0 21.— 01/1Q/o4 M0N 09:43 FAX 743 4666 169 BBo lniosi82 iQ:O2 e806 378 2+� PRODUCTION �+ .70w jDOS -L of this Agreement, the Company's annual mfrdmum quantiey obligation shall not be reduced- 5-2 If for any r=oa other than force m4euze the Chy tails to deliver upon dej=d by tha Company at least seven ma`]Iion (7,000,00{i) gallons a day, the Company's mh-dmum obligation (1,440,OW,000) for the year shall be reduced by seven miMon (7,000,000) ,gapes, without reduction For auy lesser wnaunt ac=lly delivered, for eacli day that the Company demands aad the City fails to deliver at least seven nd7hon (7,000,00C) gan= unless fhe City provides other water that meats or exweds Swe rninimum quality standards sct fwtb in ARM 3M -_99&L= and satisfies Lbc City's dalicvembility oblig2t as under this Agreement Ile foregairr�,g reduction of the Company's minimum obligz6on for the year sball be In addition to any and all remedies at law or equiLy av;�iabl� .totthe .C?ompast �►'s-fa�tie-to salisEy "the"daily deliveraC�iliry ofiliga[iort_ 3- The t=",md conditions of the A�eexaent not changed by this Amendment shall retnoin in f dl force noel effect. 4. In the event of any incoa5i t cy betty= the Agreement and this Amendment the inconsistency shall be resolved in favor of dais Araeadment_ The parties have caused this zepremmtadves as of the date first above i By. H $ ton Vice President, P[adacdoa 993=27RW'i UA . -. by theirauthorized rysr. Appmved as :to :Poxm.- BY: Donald G. Vandiver Approved as to Co ntenc Msistant City Manager Gtrnoll McDonald 4 Contract: 9095 STATE OF TEXAS VOW Resolution No. 2009-RO271 CONTRACT FOR SALE AND PURClr,.SE OF TREATED SEVIAGE EFFLUENT COUNTY OF LUBBOCK MOW ALL MEN BY THESE PRESENTS: THIS CONTRACT MADE this / day of,� 1968 between City of Lubbock, a Home Rule Municipal Corporation of Lubbock County, Texas, (hereinafter called "CITY"), and Southv-extern Public Service Company, a New Mexico Utility Corporation, having its principal operating office in Amarillo, Potter County, Texas, (hereinafter called "COfdPANY"), each acting herein by and through its respective officers heretofore duly authorized. WITNE"SSETH THAT; WHEREAS, Company contemplates constructing at a location in Section 21, Block S, Lubbock County, Texas, a generating station, the first unit of which is presently anticipated to be complete on or about June 1, 1971, and •VIIJEREAS, Company desires to secure a dependable supply of con- densing water for the operation of its new generating station, and any additions thereto, and , WHEREAS, City is coritemplating constructing and operating a 12,000,000 gallons per day activated sludge sewage treatment plans: as a part of its sewage disposal system, which will produce se%-lage effluent whic h can .be made suitable and .useable by Company as condensing water in its generating station, and Vr,JEREAS, City desires to sell and Company desires to buy such .the following terms and conditions. To this end, City agrees to make eight hundred forty million (840,000,000) gallons of treated L 4 sewage effluent available to Company annually from and. after June 1, 1971, at a point hereinafter described, but in no event shall this be construed as obligating City to furnish in excess of three million five hundred thousand (3,500,000) gallons of such effluent in any single calendar day. i.2 City further agrees to furnish, at the initial rate specified in Article III, effluent for test purposes during the period from April 1, 1971, to May 31, 1971, in quantities not exceeding 3,500,000 gallons in any one calendar day. ARTICLE II - ADDITIONAL QUANTITY AND OPTIOVS 2.1a For the consideration of the amount to be paid by Company in the amounts as hereinafter determined, Company is hereby granted an option to secure additional treated sewage effluent water needs, and in consideration thereof City agrees to make one billion, eight hundred and thirty million (1,830,000,000) gallons of treated sewage effluent water available to Company annually at Company's option from and after June 1, 1973, but in no event shall this be construed .as obligating City to furnish an excess -of seven million, seven hundred thousand (70700,000) gallons of such water on any single calendar day. The City shall not be obligated under this Section 2.1a unless Company gives written notice that all or a portion of this additional water shall be needed by Company on or before thirty --six (36) months before such additional water is needed but in no event R •1. million (990,000,000) gallons of effluent per•year in addition to the quantity specified in Arti.c e 1.1, 2.1b For the further and additional consideration of an amount to be paid by Company, as hereinafter determined, Company is hereby granted by City a second option to secure additional � treated sewage effluent water needs, and in consideration thereof City agrees to make two billion, eight hundred eighty million (2,880,000,000) gallons of treated sewage effluent water available to Company annually from and after June 1, 1977, but.in no event shall this be construed as obligating City to furnish in excess of twelve million, three hundred fifty thousand (12,350,000) gallons of such water on any single calendar day. Provided however, City shall not be obligated on,the second option unless Company gives written notice that all or a portion of this additional water shall be needed by Company on or before thirty-six (36) months before such additional water is needed, but in no event later than 36 months prior to June 1, 1986.' Failure by Company to exercise the option herein granted shall operate to relieve City of any further obliga- tion with respect to the option granted in this Section 2.111, and the second option shall be terminated and be of no further'force or effect. The option granted in this Section 2.1b is an option to take up to one billion fifty million (1,0500000,000) gallons of effluent in addition to the number of gallons specified in Article 1,I, plus the number of gallons, if any, for which the option ' granted in Article 2.1a is exercised. 2 _ lc The cnnq i aPrA - i ^n +-., 'k^ .. 4 A r-..- J- - _! -- low 2.1d The consideration to be paid -for the second option herein a granted shall be an amount equal to twenty percent (201,"J') of the current rate per -one thousand (1,000) gallons as hereinafter deter- mined under the terms of Article -III on the additional one billion fifty million (1,050,000,000) gallons of water City is required to have available for use of Company. 2.le If Company determines that less quantity of water service is needed to meet its requirements at the time it exercises its options, it shall so notify City of the quantity of water it will require in the notice that it intends to exercise its option and such. quantity so -designated shall thereupon become the obligation of the City to supply Company in lieu of the larger quantity set forth in Sections 2.1a and 2.1b. 2.2 . The amounts to be paid by Company under Article 11 shall be paid annually in advance at Lubbock, Texas on or before June 1, 1971 and each June l'thereafter so long as such options remain unexpired or until treated sewage effluent is being accepted by Company as a result of exercising the first or second option. Failure to pay any amount due hereunder within fifteen (15) days after notice of default and demand for payment will, at City's option, relieve City of any further obligation under the options, hereby granted without further acquittance by Company. 't ' 2.3 All payments made pursuant to Article II shall be consi- dered advance payments for the additional effluent to be delivered pursuant to the Company's exercise of either the first and/or second option or both, as hereinabove granted, and shall be creel-ited Now'�! rel'rescnt•cd by that portion of the option which is not exercised. It is further agreed that the annual pre -payment credit-:; on each option shall be applied in the following manner: the first annual paymcat shall be a credit for the first year that payments bccozze due for additional sewage effluent water under each option, and in like manner thereafter until all credits are exhausted under the respective option. It is further agreed that the Company may release either option at any time, in whole or in part, and by so doing, be relieved of its obligation to continue such payments in advance, either wholly or in Past, as the case may be, effective upon the date of delivery of a complete or partial release to the City and to'the extent specified in such release, the City shall be relieves] of its obligation to make effluent available. ARTICLE III RATE ANTD PAYMENT - 3.1 The rate to be paid each month by Company per one thousand (1,000.) gallons of sewage effluent water delivered by City under the terms of this contract shall be the sum of the following: , a. The actual prorated part of the current operation cost of :the activated sludge sewage 'treatment - plant, N.,hich current - �w+rr�rw wawwA�� operation cost shall consist of the City's expenditures for on -site labor (including fringe benefits and payroll taxes), utilities, supplies, maintenance and repair, actual bookkeeping and•insurance expense allocable to said facilities. b. A paynont of one cent (14:) per one thousana (1,000) gallons Now (12) months period, ending oriI•lay 31. These rates per one thousand (1,000) gallons shall remain a fixed cost throughout the life. of this contract. C. The prorated cost to the City per one thousand (1,000) gallons capacity of the activated sludge sewage treatment plant, amortized over a thirty-five (35) year period at City's current interest rate. "Prorated cost" shall be determined by dividing total cost (including amortization charges) by total capacity over a thirty-five (35) year period. d. Twenty per cent (20%) of the sum of subparagraphs a, b and c above. In the event it becomes necessary for the City to purchase water from other sources of equal quality with that herein agreed, to be delivered by City to Company, it is further agreed that the cost of such additional water shall constitute an additional item of the current operational, cost, which shall be made known by written notice to the Company in advance; in no event shall City be required to furnish Company with water at a rate less than the price paid by the City for an equal quantity of water of similar chemical and biological quality. 3.2 On or before June 1, 1971, and each June 1st thereafter, the City 'shall calculate the cost of operating the activated -sludge sewage treatment plant per one thousand (1,000) gallons for one twelve (12) month period and the price paid by the Company per one thousand (1,000) gallons for sewage effluent water pursuant to the terms of this contract for such twelve (12) month period shall be adjusted upward or downward to the extent that the actual cost of such current operation per one thousand (1.,000) gallons of effluent treated exceeds or is less than that calculated in advance by City. Such actual cost of operation per. one thousand (1,000) gallons of effluent treated shall also be used as the appropriate factor in making billings during the ensuing C � � following June 1. For billing purposes for the first twelve (12) months billing period, beginning June 1, 1971, the "constant flow" will be assumed to be zero (0), with adjustments, if any, to be made on June 1, 1972. The operating cost, "constant flow" and amortization cost, will Q'r be reviewed each June 1, and billing will be adjusted to reflect any changes, retroactive for the preceding year. ARTICLE IV -- DELIVERY POINT 4,1 It is agreed between the City and the Company.that the delivery point of the treated sewage effluent water to be sold under this contract shall be a point in Section 21, Block S, GC & SF Ry Co Survey, Lubbock County, Texas. Company will pay for a pipeline, not less than twenty-four (24) inches in diameter, to be -constructed by City, from the site of the City's sec:age treatment plant to said delivery point. Such pipeline, including the right-of-way, shall thereafter be owned, operated and maintained by the City. Payments for such pipeline shall be made by the Company as the cost thereof is incurred, and as the Company is billed by the City for such costs. In this connection, it is understood and agreed by the parties that notwithstanding the statement of the beginning date of this contract as herein contained, it is necessary that the necessary right-of-way be furnished in time for the City to commence construction of such pipeline for completion on or before April 1, 1971. The right--of- way .to be furnished by the Company shall consist only of a right-- of-way across the property known to the parties as the V-8 Ranch, and the City shall obtain or furnish such other right-of-way as is necessary, -without expense to the Company. 4.2 Water pressure at point of delivery shall be not less than 3 p.s.i. ARTTC'T.F V- KITNTMTTM r Ly7r nrr 1 l • beginning June 1, 1971. The Company shall pay the rate specified in Article III for (1) the quantity of effluent actually used;' or (2) 720,000,000 gallons per year, whichever is greater, and shall pay 20%�of such rate for the balance of .the 840,000,000 gallon commitment. . 5.2 When City commences actual delivery of additional effluent pursuant to Company's exercise of each option herein granted, Company shall become' obligated, and hereby obligates itself, to pay . for the total quantity of effluent which City is then obligated to deliver. Company shall pay the rate specified in Article III for (1) the quantity of effluent actually used, or (2) six -sevenths (6/7) of the total annual commitment, whichever is greater,.and shall pay twenty per cent (20l) of such rate for the balance of the quantity for which it is obligated to pay. ARTICLE VI - SALE OF SURPLUS The City reserves the right to supply and sell to other users, sewage effluent Crater so long as it is capable of meeting the guaranteed quantities of water specified herein and in the event such other users are supplied from the pipeline to be built by City and paid for by Company, as billed by City during construction, it obligates and binds itself to reimburse Company its pro rata cost of constructing such pipeline, provided however, that the re- payment of the pro rata cost shall not apply to any public use which may include but not be limited to agricultural irrigation on city -owned land or lands now under contract in relation to use of sewage effluent between the City of Lubbock and Standefer & Gray, of Lubbock or such other grater of equivalent quality as will meet: the specifications hereinafter set out, to -wit; a. have a pii value of from 6.8 to 9.0 by the standard method of the American Public Health Association or another mutually acceptable method, as determined on an average sample obtained hourly over a twenty --four (24) hour per- iod prior to injection of chlorine. b. not contain in excess of 25 ppm suspended solids as determined by the standard method of APHA or another mutually accep£cd method at the point of delivery. c. be treated with chlorine in such quantities so'that a free residual chlorine of not less than one tenth (0.10) ppm can be detected in a sample from the water being delivered at the delivery point -herein specified when it is tested fifteen minutes after the sample is taken, provided that this requirement may be altered at the •;��:, option of COI•iPANY to not less than a sufficient treatment to prevent formation of slime or algae in the water line.. d.- not have a biochemical oxygen demand ($OD) in excess of twenty-five (25) ppm as determined by the Winkler five day 200 C method, or another mutually acceptable method at the point of delivery. ARTICLE VIII - MEASURING EQUIPMENT 8.1 Sewage effluent water shall be metered at the point or points of delivery. The City shall furnish, install, operate and maintain at said delivery point a„master meter of.standard type for measu::ing properly the quantity of water delivered under this contract. The City shal•1 install and maintain a con- tro.1 system for the purpose of making satisfactory delivery of .the water. The Company shall reimburse the City for the cost of the meter and control system and any subsequent maintenance to the meter or control system. Meters for more than one point of delivery requested by Company shall be furnished, installed, operated and maintained by the City, withthe cost of the meters and installation meter shall be done only by employees or agcnts of tho City. The City shall keep a true record of all meter readings as transcribed from the reports of the City's employees or agents with respect thereto. Upon t.lrittcn request of the Company, the. City will give it such information as it may request from the City's journal or record books or permit the Company to have access to the same in the office of the City during business hours. 8.2 The City shall calibrate its metering equipment as often as it considers necessary and at such time as Company may show reasonable evidence of error, but at least every twelve (12) months, if upon any test, the percentage of any inaccuracy thereof is found to be in .excess of two per cent (2;0) , registra- tion.thereof shall be corrected for a period extending back to the time when such inaccuracy began if such time is ascertainable, and if not, then for a period extending back one-half (1/2) of the time elapsed since the last date of calibration, but in no event further back than a period of six (6) months. in the event the Company has provided no check meter with reference thereto and if fdr any reason any master meter is out of service or out of repair so that thd.amount'of water delivered cannot be ascertained or computed from the reading thereof,' the water delivered during the period such meter is out of service or out of repair, shall be agreed upon by the'parties hereto, by correcting the error if the percen- tage of the error is ascertainable by calibration tests or mathe- matical calculations, or by estimating the quantity of delivery K J -including but not limited to acts of God, or the public enemy, R`acts or orders of any County, State -Q-& Federal officer, agent or agency purporting to act under duly constituted authority or any court order, wars, riots, floods, fires, storms,. strikes, lock- outs, interruptions of transportation, freight embargos or failures, exhaustion or unavailability on the open market or delays in delivery of material, equipment or services necessary to the per- formance of any provision hereof, or happening of unforeseen acts, misfortune or casualty whereby performance hereunder is delayed or prevented, which performance is prevented by such cause; pro- vided, however, that the party so affected will use its best efforts to remedy the situation. 9.2 If City's inability to deliver treated sewage effluent water for any reason, including but not limited to those enumer- ated above, shall continue for twenty four (24) hours, City shall make every reasonable effort to supply suitable condensing water from any other available source at the most favorable price to the Company at which the City is able to secure such water. Nothing contained herein however; obligates City to supply treated sewage effluent water or other water in excess of that available from sewage flows of the present and future, or in excess of that available from contemplated sewage reclamation. ARTICLE X - GENERAL 10.1 The unit of measurements for water delivery hereunder shall be one thousand (1,000) gallons of water US standard liquid measure, providing Company with a sufficient supply•oi condensing water for'the operation of its generating station to be located in Lubbock County, Texas, and not for resale. 10.4 Where the terms 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 deter.- minations. 10.5 All rights of action for breach of this contract are reserved to the'City and the Company. Nothing contained in this - contract shall be construed as abridging, limiting, or'deprivi.ng . the City or Company of any means of enforcing any remedy.either at law or in equity for the breach of any provisions hereof which either party would otherwise have. The waiver of a breach of any one of the provisions of this contract shall not be deemed to be a waiver of any other provisions hereof, or any other or subsequent breach of any provisions hereof. 10.6 Any notice authorized or required by'this contract shall be deemed properly given, if hailed postage prepaid to the office of the City Secretary of the City of Lubbock on behalf of the City and to the manager of the local office of Southwestern Public Service at Lubbock, Texas on behalf of the Company. The designation of the person to be notified, or address of such person, may be changed at any time by similar. notice. 10.7 It is expressly recognized by the City that the effluent water unless and until such time as Conipany,has exercised the option right or rights herein granted and has•installed and in operation two or more generating units in this station. 10.8 If any provision of this agreement be invalid under existing law or would operate under existing law to render this agreement unenforcible, then such provision, insofar as is neces- sary to render this agreement enforcible under existing law, shall be deemed to be deleted herefrom and this agreement in all other respects shall remain in full force and effect. ARTICLE XI - TERt•: The term of this contract.is thirty-five (35) years from June 1, 1971, and thereafter until either party shall give the' other party three (3) years notice, in writing,'of its intention to terminate the same. EXECUTED the day and year first above written. ATTEST 4:: BY �4112:zlzza,_ ITY SECRETARY ATTEST: BY S=RETARY SOUTHWESTERINT PUBLIC SERVICE COIMPA IY BY e1. PRESIDENT