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HomeMy WebLinkAboutResolution - 2012-R0150 - Agreement - Big Country Electric Cooperative Inc.- Electric Services - 04/10/2012Resolution No. 2012—RO150 April 10, 2012 Item No. 5.10 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, an Agreement by and between the City of Lubbock and Big Country Electric Cooperative, Inc., for electric service to the Lake Alan Henry water pumping station, and related documents. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council on April 10 , 2012. 1,4;Z - TOM MARTIN, MAYOR TTEST- RebecA Garza, City Secretary PPROVED AS TO CONTENT: Reed, PE, Chief Operating Officer Aubrey Spear, l g, Dirictor of Water Resources APPROVED AS TO FO Satterwhite; Assisia7'City Attorney ms/Agrmnt Elect Sery LAH Pumping Station.res 3.7.1 Z Resolution No. 2012-80150 AGREEMENT FOR ELECTRIC SERVICE TO LAKE ALAN HENRY PUMPING STATION This contract for electric service (this "Agreement") dated as of April 10th, 2412, is by and between Big Country Electric Cooperative, Inc., a Texas electric cooperative (hereinafter referred to as "Cooperative"), and the City of Lubbock, a Texas municipality (hereinafter referred to as "Customer"). Cooperative and Customer are individually referred to as "Party" and collectively referred to as the "Parties." WHEREAS, by this Agreement, the Parties have agreed to contract for the provision of electric power and energy to be provided by Cooperative to Customer at the Point of Delivery; and WHEREAS, Customer is the owner and operator of a water pumping station at Lake Alan Henry, Garza County, Texas (the "Pump Station Facility"), which includes electric transmission and distribution facilities and a 69 kV to 4.16 kV substation and associated equipment and which has been constructed by Customer and will be operated during the term of this Agreement by Customer, interconnecting to the Point of Delivery (as defined below); and WHEREAS, Customer requires Service (as defined below) from the Cooperative at the Point of Delivery commencing on the Service Date. NOW, THEREFORE, in consideration of the monies to be paid by Customer to Cooperative, and the mutual covenants, agreements, and obligations herein, the Parties do hereby agree as follows: I. DEFINITIONS A. "Agreement" shall have the meaning given in the introductory paragraph. B. "Billing Meter" shall have the meaning given in Section XIII. C. "Business Day" means any day other than Saturday, Sunday or any day on which banks in Lubbock, Texas are authorized or required to close. D. "Cooperative" shall have the meaning given in the introductory paragraph. E. "Customer" shall have the meaning given in the introductory paragraph. F. "Customer Transmission Facilities" shall have the meaning given in Section III. G. "Effective Date" shall have the meaning given in Section XXXI. H. "SPP" means the Southwest Power Pool. I. "SPP Protocols" means the protocols, rules and guidelines of SPP, as may be amended from time to time. J. "Golden Spread" means Golden Spread Electric Cooperative, Inc., an electric generation and transmission cooperative providing wholesale electric service to Cooperative on the Effective Date. K. "Point of Delivery" means the physical point of interconnection, which shall be a switching station also containing Cooperative's metering devices (the "Switching Station") at which the Cooperative's 69 kV line at the Switching Station connects to Customer's 69 kV line at the Switching Station. L. "Rate Schedule" shall have the meaning given in Section W. M. "Security Deposit" shall have the meaning given in Section X. N. "Service" shall have the meaning given in Section II.A.. O. "Service Date" means April 10, 2012. P. "Tariff' shall mean the Big Country Electric Cooperative, Inc. Tariff for Electric Service Q. "Term" shall have the meaning given in Section V.A. R. "Pump Station Facility" shall have the meaning given in the preamble. IL. SERVICE A. Cooperative shall sell and deliver to Customer power and energy as and when needed by Customer for the operation of all electric consuming facilities on Customer's side of the Point of Delivery ("Service") at the capacity identified below: Delivery Paint Service Voltage Contract Capacity Service Date Point of Delivery 69 kV 2,000 kW April 10, 2012 B. Commencing on the Service Date, Customer shall receive Service from Cooperative as and when needed by Customer for the operation of electric consuming facilities on Customer's side of the Point of Delivery and shall pay for such Service in accordance with this Agreement. Service will be at designated voltage, three-phase, and 60 cycles per second; provided, however, that, Customer understands that Service provided by Cooperative may have reasonable variation in frequency and voltage in conformance with Public Utility Commission of Texas Substantive Rule §25.51 (a) and (b). III. FACILITIES PROVIDED Customer shall provide from the Pump Station Facility electric distribution facilities, substation, transmission facilities and all required protective devices on Customer's side of the Point of Delivery in order to receive Service from Cooperative under this Agreement ("Customer Transmission Facilities") and shall, during the Term of this Agreement, operate and maintain such facilities in a prudent manner and in accordance with the National Electric Safety Code and other applicable industry standards. IV. MONTHLY CHARGE For each monthly billing period during the Term of this Agreement, Customer shall make payment to Cooperative for the electric power and energy consumed by Customer as reflected in the Billing Meter reading for the applicable billing period, at rates as set forth on the Rate Schedule 202.23, attached hereto as Attachment "A" ("Rate Schedule"). The Rate Schedule is designed based on customer's load projections and Cooperative's most recent cost of service study. It will be reviewed following Cooperative's next cost of service study and, based upon such costs of service and Customer's usage history, may be changed or amended based upon such factors in accordance with applicable law. Cooperative acknowledges and agrees that as to the initial provision of service, Customer will not be subject to any additional charges pursuant to Sections 202.23 (B) or 202.23(C)(3) of the Rate Schedule, Customer having already provided facilities necessary for the initial provision of service. V. TERM A. The term of this Agreement shall begin on the Service Date and continue through April 10, 2021 (the "Term"); except as same may be extended or terminated early in accordance with Sections VI and VII. B. Customer acknowledges that, on the Effective Date, Customer shall begin to incur payment and other obligations associated with Cooperative providing Service. C. The expiration or termination of this Agreement shall not relieve Customer of its obligation to pay Cooperative for all costs and expenses associated with providing Service. VI. CONTINUATION BEYOND TERM Not less than sixty (60) days prior to expiration of the Term of this Agreement, the Parties shall use reasonable efforts to negotiate an agreement for the continuing provision of Service to Customer. In the event Service is continued beyond the Term of this Agreement and the Parties have not executed a new agreement relating thereto, Customer shall continue to be obligated under this Agreement to pay for Services rendered following termination or the expiration of the Term. Notwithstanding the foregoing, Cooperative may discontinue the provision of Service (i) in accordance with Section VII or Section X of this Agreement, or (ii) following expiration of the Term of this Agreement upon thirty (30) days' prior written notice (whether delivered prior to or after such expiration). VIL TERMINATION A. At such time as this Agreement terminates or expires, Customer shall pay to Cooperative an amount equal to the sum of (a) any outstanding charges for Service provided up to and including the termination date, plus (b) any amounts payable by Cooperative to wholesale suppliers for contract minimums or other charges in future periods related to termination of this Agreement or the reduction of Customer's load, plus (c) any unreimbursed cost of any facilities installed by Cooperative to provide Service to Customer, plus (d) cost of removal of any such facilities installed by Cooperative; provided, however, that after payment for said facilities is tendered, Customer shall be entitled to take ownership of such facilities, free and clear of any liens, interests, or other encumbrances. This termination payment shall apply in all circumstances, irrespective of the reason the Agreement is terminated, the Party that seeks termination, or whether the termination results from the expiration of the Term or any period beyond the Term. The indemnity provisions of this Agreement shall survive termination of this Agreement. B. Upon the occurrence of a Qualified Termination Event, Customer may terminate this Agreement by providing sixty (60) days' written notice of termination and payment to Cooperative of the amounts provided in subsection A of this Section. For the purposes of this section, "Qualified Termination Event" shall mean: 1) that Customer ceases operation of the Pump Station Facility during the Term; 2) that Customer identifies another electric service provider to supply Customer's needs in connection with the Pump Station Facility, and elects to receive electric service from said provider; or 3) that Customer acquires the means to supply electric service to the Pump Station Facility. VIII. CUSTOMER CONTRIBUTION Customer shall pay for any additional facilities provided by Cooperative that Cooperative deems necessary or desirable to deliver Service to Customer, including but not limited to all reasonable costs for such facilities incurred and assigned to such Service by Golden Spread. Customer also shall be responsible for the cost of metering and communication facilities incurred by Cooperative to implement the Rate Schedule. As of the Effective Date, Cooperative does not anticipate the need to provide any additional facilities. If Cooperative later determines additional facilities are needed then it will give Customer written notice of its concerns and the reasons Cooperative believes additional facilities are needed and Customer will have opportunity to protest Cooperatives determination and/or offer alternative solutions. Notwithstanding the foregoing sentence, if Cooperative in good faith determines at any time during the Term of this Agreement that additional facilities are needed to deliver Service to Customer, Customer shall be obligated to pay for such facilities. IX. POWER FACTOR Customer shall use all electricity received by Customer under this Agreement exclusively for the operation of electric -consuming facilities located on Customer's side of the Point of Delivery. Customer shall: (i) maintain a power factor not less than 98% when acting as a load; (ii) assume responsibility for any power factor penalties or adjustments associated with power factor incurred by Cooperative in providing power to Customer; and (iii) assume responsibility for any costs incurred by Cooperative for Customer's failure to maintain required power factor. X. SECURITY DEPOSIT; INVOICES AND PAYMENT A. Cooperative shall initially waive any requirement of a security deposit (the "Security Deposit"). After a billing history has been created with Cooperative then Cooperative reserves the right to require a security deposit if Customer's payment history is subpar, in which case it may require a Security Deposit up to an amount not to exceed 1/6 of the estimated annual future billings to Customer. Cooperative shall pay interest on any Security Deposit at an annual rate equal to or greater than that set by the Public Utility Commission of Texas on December 1 of the preceding year, pursuant to Texas Utilities Code §183.003 or its successor statute (relating to Rate of Interest). Customer agrees that the Security Deposit shall be held by Cooperative in order to secure the performance by Customer of Customer's obligations under this Agreement, it being understood and agreed that the Security Deposit is not an advance payment deposit or a measure of Customer's damages in case of Customer's default. If Customer defaults beyond the expiration of applicable notice and cure periods in respect of any of the terms, covenants or conditions of this Agreement, including the payment of amounts owed under this Section X, Cooperative may apply or retain the whole or any part of the Security Deposit to the extent required for the payment of any sums which Customer owes to Cooperative under this Agreement. If Cooperative applies or retains any part of the Security Deposit, Customer, upon demand, shall deposit with Cooperative the amount so applied or retained so that Cooperative shall have the full Security Deposit on hand at all times during the Term. If Customer shall fully and faithfully comply with all of the terms, covenants and conditions of this Agreement, the Security Deposit shall be returned to Customer within thirty (30) days after the expiration of the Term. Customer expressly agrees that Customer shall have no right to apply any portion of the Security Deposit against any of Customer's obligations to pay amounts owed hereunder. B. Invoices for sums due hereunder shall be rendered to Customer by mail or hand delivery once each month during the Term for Service provided during the preceding billing period and may be paid (i) by mail in accordance with the provisions of this Agreement regarding Notice or (ii) in person at the office of the Cooperative. Within thirty (30) days after receipt of each invoice, Customer shall pay the amounts then due under this Agreement and set forth on such Invoice. Any amount that is not paid when due shall be charged a late fee equal to 5% of such amount. If Customer fails to pay the full amount of Cooperative's invoice before such payment is past due, Customer shall be in default of this Agreement, subject to the terms of Section XXIV herein, and Cooperative may provide written notice to Customer of Cooperative's intention to discontinue Service. Upon failure of Customer to cure such default within ten (10) days after Customer's receipt of such written notice, Cooperative may discontinue service to Customer, terminate this Agreement and pursue any other available legal remedies. Discontinuance of Service shall not relieve Customer of any of its obligations under this Agreement. XI. VERIFICATION AND CORRECTION OF INVOICES AND PAYMENTS A. Each Party shall have the right during normal business hours to examine the boobs, records and charts of the other Party to the extent reasonably necessary to verify the accuracy of any statement, payment, calculation or determination made pursuant to the provisions of any section hereof. If any such examination shall reveal, or if either Party shall discover, any error in its own or the other Party's statements, payment, calculation or determinations, then proper adjustment and correction thereof shall be made as soon as reasonably possible thereafter. B. Cooperative shall have the right to send subsequent invoices for prior billing periods based upon adjustments to Golden Spread's wholesale power costs to Cooperative related to Services provided to Customer and such invoices are not subject to the six (6) month limitations in Section XI.A above. XII. RESALE Customer understands and agrees that the Service provided under this Agreement shall not be resold. Customer may use capacity and energy purchased under this Agreement only to serve Customer's loads on Customer's side of the Point of Delivery. XIII. METERING Electric power delivered hereunder shall be measured by metering equipment owned by Cooperative and installed, operated and maintained, in accordance with the SPP Protocols. Customer or Cooperative may request and witness a test of the Billing Meter during normal working hours at a time mutually acceptable to Customer and Cooperative. If, as a result of a Billing Meter test, the Billing Meter is found to be outside the accuracy standards set forth by the SPP Protocols, adjustments shall be made to prior meter readings in accordance with the SPP Protocols, and Cooperative shall credit or charge customer for amounts previously over or under billed after giving effect to such adjustments. XIV. SERVICE REQUIREMENTS On or before October 15 of each year during the Term, Customer shall provide to Cooperative annual written notice of its five-year forecasted peak summer and winter loads. Customer also shall notify Cooperative each time Customer's load will be changed substantially or would result in an annual peak demand kW in excess of the Contract Capacity provided in Section II.A hereof. Cooperative may, but shall not have the obligation to, arrange for facilities to serve load in excess of the load forecasted by Customer, and Cooperative may hold Customer liable for any damage to facilities resulting from use of Service in excess of the load forecasted by Customer. XV. CUSTOMER OBLIGATIONS FOR COOPERATIVE FACILITIES If Service provided to Customer causes voltage fluctuations, disturbances, interference, distorted wave forms or deterioration of service to other electric customers served by Cooperative, or to telecommunication facilities services, which specifically can be identified and verified by Cooperative, Cooperative shall have the right to require the installation by Customer of suitable apparatus to correct or limit such fluctuation or disturbance at no cost to Cooperative. If such corrective action is not taken promptly upon request, Cooperative shall have the right to cause reasonable corrective measures to be taken, and Customer hereby agrees to pay all reasonable and actual cost associated with such action. XVI. RIGHT OF ACCESS If Cooperative provides facilities in order to deliver Service to Customer, Customer shall provide Cooperative with a perpetual easement satisfactory to Cooperative for the required facilities insofar as they are located on land owned by Customer. Cooperative shall have access to all of Cooperative's facilities on Customer's premises. Customer shall make reasonable efforts to assist Cooperative's access to its facilities on Customer's premises, if any, including reasonable ingress and egress. Duly authorized representatives of Cooperative shall be permitted to enter Customer's premises at all reasonable times in order to carry out the provisions hereof, including meter reading. Customer shall provide reasonable assistance to Cooperative, as needed. XVII. MEMBERSHIP During the Term, Customer shall be a member of Big Country Electric Cooperative, Inc., and shall pay the membership fees and be bound by the provisions of the Articles of Incorporation and Bylaws of Cooperative and by such rules and regulations as may be adopted by Cooperative from time to time. XVIII. FORCE MA.IEURE Neither Customer nor Cooperative shall be liable for any delays (other than payment of invoices) due to force majeure. "Force majeure" shall mean causes beyond the reasonable control and without the fault of the of the Party claiming force majeure, including, but not limited to any partial or complete forced outage, any failure of facilities or fuel supplies or interruptions, in each case caused by fires, earthquake, floods, lightning, storms, unusually severe weather conditions or other acts of God, acts of any govermnent or judicial authority, acts of any public enemy, war, riots, civil disturbances, acts of terrorism, sabotage, strikes, embargoes. In the event of any such contingency, the impaired Party shall resume the performance of its obligations hereunder as soon as reasonably possible. XIX, ASSIGNMENT This Agreement shall not be assigned by either Party without prior written consent of the other Party, which consent shall not be unreasonably withheld, delayed or conditioned. XX. NOTICE Any notice required or authorized to be given hereunder or any other communications between the Parties provided for under the terms of this Agreement shall be in writing (unless otherwise provided) and shall be delivered personally or by reputable express courier service or by facsimile transmission addressed to the relevant Party at the address stated below or at any other address notified by that Party to the other as its address for notices. Any notice so given personally and any notice so given by express courier service shall be deemed to have been delivered on the date of dispatch by the sender. As proof of such dispatch it shall be sufficient to produce a receipt showing personal service, the receipt of a reputable courier company showing the correct address of the addressee or an activity report of the sender's facsimile machine showing the correct facsimile number of the Party on whom notice is delivered, the correct number of pages transmitted and the date of dispatch. The Parties' addresses for service and other contact information are: If to Cooperative: Big Country Electric Cooperative, Inc. P.O. Box 518 Roby, Texas 79453-0518 Attn: Fredda Buckner, General Manager Fax: (325) 776-2246 With a copy to: Richards, Elder & Green, L.L.P. 3223 S. Loop 289, Suite 424 (79423) P.O. Box 64657 Lubbock, Texas 79464-4657 Attn: Dulan D. Elder Fax: (806) 798-8878 If to Customer: City of Lubbock 1625 13`h Street Lubbock, Texas 79401 Attn: Aubrey Spear, P.E. Fax: (806) 775-3027 With a copy to: City Attorney P.O. Box 2000 Lubbock, Texas 79457 Fax: (806) 775-3307 The above -listed names, titles and addresses of either Party may be changed by written notification to the other. XXI. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES A. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY HERETO BE LIABLE TO THE OTHER PARTY, FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS), HOWEVER CAUSED AND BASED ON WHATEVER THEORY OF LIABILITY, WHETHER TORT, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE ARISING OUT OF OR RELATED TO THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING AND FOR THE SAKE OF CLARITY, THE PARTIES AGREE THAT DAMAGES AMOUNTS PAYABLE TO A THIRD PARTY BY A PARTY HERETO WHICH ARE AN ELEMENT OF ANY CLAIM, DEMAND, DAMAGE, LOSS OR CAUSE OF ACTION ASSERTED HEREUNDER SHALL BE CONSIDERED DIRECT DAMAGES HEREUNDER. B. DISCLAIMER OF WARRANTIES. COOPERATIVE MAKES NO WARRANTIES WHATSOEVER WITH REGARD TO THE PROVISION OF ELECTRIC SERVICE AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NOTWITHSTANDING ANY COURSE OF PERFORMANCE OR USAGE OR TRADE, OR LACK THEREOF, THAT MAY BE INCONSISTENT WITH THIS SECTION. XXII. SUCCESSORS AND ASSIGNS This Agreement shall be binding upon and inure to the benefit of Cooperative and Customer and their respective successors and permitted assigns. XXIII. ENTIRE AGREEMENT / LAW GOVERNING / VENUE This Agreement constitutes the entire agreement between the Parties respecting Service to the Customer as described herein. There are no prior agreements or understandings between the Parties respecting the Service described herein. Cooperative, its agents and employees have made no representations, promises, or inducements, whether written or verbal, which are not contained herein. Each of Customer and Cooperative agrees that it is not relying on any statement not herein contained. This Agreement may be modified at any time by mutual written agreement of the Parties hereto and shall be construed and governed in accordance with the laws of the State of Texas. If any provision of this Agreement is determined to be void, unenforceable, or in violation of law, such provision shall be severed from this Agreement and the remaining provisions of this Agreement shall continue to be binding on the Parties and shall be enforced. Customer and Cooperative agree that to the extent of any conflict between the provisions of this Agreement and those of the Cooperative's Tariff, the terms and conditions of this Agreement shall control. Venue for any dispute arising under this Agreement shall be in Scurry County, Texas. XXIV. BREACH; DISCONTINUANCE OF SERVICE Notwithstanding any other provisions of this Agreement to the contrary, and without waiving any right hereunder or remedies provided by law, Cooperative may discontinue Service if Customer fails or refuses to perform any of Customer's obligations under this Agreement, including but not limited to failure to make timely payment, and Cooperative has provided written notice of such default to Customer in accordance with the default notice provisions of Section XX. XXV. WAIVER No waiver, expressed or implied, to any breach of any one or more of the covenants or agreements hereof shall be deemed to be a waiver of any subsequent breach. XXVI. NO THIRD PARTY BENEFICIARIES This Agreement is not intended to, and shall not, create any rights in or confer any benefits upon any person other than the Parties hereto. XXVII. SPP -RELATED PROVISIONS A. Pursuant to Section 202.23(C)(4) of the Tariff, Customer shall reimburse Cooperative for all costs assessed to Cooperative by SPF relating to the provision of Service to Customer so long as said costs would not otherwise have been assessed to Cooperative, but for the agreement to provide Service to Customer. Prior to reimbursement, Cooperative shall provide Customer invoices from Cooperative's wholesale provider as to these costs, as well as a detailed explanation of the method of calculation used by the Cooperative to determine what portion of the wholesale provider's costs should be charged to the Customer. Cooperative shall promptly notify Customer of any reimbursable costs assessed by SPP. B. Customer and Cooperative agree to abide by all SPP Protocols. In the event of a change in the SPP Protocols that results in a conflict or inconsistency between this Agreement and the SPP Protocols, the Parties hereto shall negotiate in good faith to amend this Agreement to eliminate such inconsistency or conflict and, to the extent possible, maintain the original intent of this Agreement. Neither Party shall have liability to the other Party for any adverse impact of any act or omission by SPP. XXVIII. ADDITIONAL TERMS A. The Service contracted for herein is to be provided and taken in accordance with the provisions of this Agreement, and the Rate Schedule, including any and all amendments that may hereafter be approved in accordance with applicable law; provided, however, in the event of conflict between the Rate Schedule and any provision of this Agreement, the latter shall control. Unless otherwise agreed, any security deposit required by Cooperative under this Agreement shall not exceed IN of annual billings as reasonably estimated by the Cooperative. B. Cooperative assumes all responsibility for electricity and electric service facilities up to and including the Point of Delivery. Customer assumes all responsibility for electricity and Customer's facilities on Customer's side of the Point of Delivery. C. Cooperative and Customer agree that with respect to the Non -Coincident Peak (NCP) demand charge, Section 202.23(C)(2)(d) of the Tariff shall be construed by the Parties to read as follows: "One thousand kW (1000 kW)". F; , VOL311 AIR Any provision which expressly or by implication is to come into effect or continue in full force and effect after the termination or expiration of this Agreement shall remain in effect and be enforceable following such expiration or termination. XXX, REPRESENTATIONS AND WARRANTIES A. Cooperative hereby represents and warrants to Customer as follows: i) Cooperative is a cooperative corporation duly formed and validly existing under the laws of the State of Texas and has all requisite power and authority to conduct its business as it is now being conducted. (ii) Cooperative has all requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by Cooperative of this Agreement, and the performance by Cooperative of its obligations hereunder, have been duly and validly authorized by all necessary corporate action on the part of Cooperative, no other corporate action on the part of Cooperative or its board of directors being necessary. (iii) This Agreement has been duly and validly executed and delivered by Cooperative and constitutes legal, valid and binding obligations of Cooperative enforceable against Cooperative in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or other applicable laws relating to or affecting the rights of creditors generally, or by general equitable principles. (iv) No consent, approval or action of, or filing with or notice to, any governmental authority on the part of Cooperative is required in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby, except those which have already been obtained. B. Customer hereby represents and warrants to Cooperative as follows: (i) Customer is a home rule municipality duly formed and validly existing under the laws of the State of Texas and has all requisite power and authority to conduct its business as it is now being conducted. (ii) Customer has all requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by Customer of this Agreement, and the performance by Customer of its obligations hereunder, have been duly and validly authorized by all necessary actions on the part of Customer, no other action on the part of Customer or its City Council being necessary. (iii) This Agreement has been duly and validly executed and delivered by Customer and constitutes legal, valid and binding obligations of Customer enforceable against Customer in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or other applicable laws relating to or affecting the rights of creditors generally, or by general equitable principles. (iv) No consent, approval or action of, or filing with or notice to, any governmental authority on the part of Customer is required in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby, except those which have already been obtained. XXXI. APPROVALS AND EFFECT OF EXECUTION This Agreement shall be effective as of the date this Agreement is executed and delivered by both Cooperative and Customer to each other (the "Effective Date"). IN WITNESS WHEREOF, the Parties hereto have executed this Agreement. COOPERATIVE: BIG COUNTRY LE C T C COPERATIVE, INC. By: 6 f Fredda Buckner, General Manager CUSTOMER: CITY OF LUBBOCK, TEXAS By:.�r-,� TONf MARTIN, MAYOR ATTEST: Rebe a Garza, City ecretary APPROVED AS TO CONTENT: M AAa-LL ep Q j Marsha Reed, PE, Chief Operating Officer Aubrey Speai�PiJ, Director of Water Resources Agrmnt for Electric Sery Lake Alan Henry Pumping Station 3.4.12 Resolution No. 2012-R©150 Attachment A Rate Schedule Resolution No. 2012—RO150 BIG COUNTRY ELECTRIC COOPERATIVE, INC. Tariff Section 11 Sheet No. 56.1 Revision Page for Electric Service SECTION TITLE: EFFECTIVE DATE: RATE SCHEDULES SEPTEMBER 15,.2011 APPLICABLE TO ALL AREAS 202.23 Municipal Water Pumping - City of Lubbock, Lake Alan Henry Pump Station. A. Application. This service is available to the City of Lubbock, Lake Alan Henry Pump Station, for the purposes of water pumping for all service supplied at one point of delivery and taken through a single meter. B. Type of Service. At wholesale delivery point. Where service of the type desired by Customer is not already available at the point of delivery, additional charges under the Cooperative's line extension policy and special contract arrangements may be required prior to service being furnished. C. Monthly Rate. Each billing period the Customer shall be obligated to pay the following charges: (1) Customer Charge �}a $200.00 per meter This charge is for the availability of electric service; and (2) NCP Demand Charge @ $0.75 per Billing kW This non -coincident peak (NCP) demand charge is applied to the greater of the following: a. The maximum kilowatt demand for any period of fifteen (15) consecutive minutes during the billing period, b. Fifty percent (50°x6) of the highest kW demand, as adjusted for power factor, established in the eleven (11) months preceding the billing period, C. Seventy-five percent (75%) of amount specified in the Agreement for Service, d. One thousand kW (1000 kW). BIG COUNTRY ELECTRIC COOPERATIVE, INC. Tariff Section II Sheet No. 565-2 Revision Page for Electric Service SECTION TITLE: EFFECTIVE DATE: RATE SCHEDULES SEPTEMBER 15, 2011 APPLICABLE TO ALL AREAS (3) Facilities Charges If it is necessary to construct new facilities, alter existing facilities, or provide additional facilities (including metering and communications) in order to provide service and implement this tariff, the Cooperative will require a facilities charge unless the Customer pays a contribution in aid of construction for the cost of such facilities. a. The monthly facilities charge shall be for the term of the Customer's agreement for service with the Cooperative. b. The facilities charge shall be the revenue requirement for the amortization of the direct plant investment to provide service to the Customer financed by the Cooperative. The amortization shall be for the term of the agreement for service and shall include interest, depreciation, and margin requirement for debt service coverage (DSC) of 1.86 for the investment. (4) Power Supply Charges The cost of power to serve the Customer including but not limited to capacity, delivery, energy, and fuel charges for the billing period plus adjustments applied to the current monthly billing to account for differences in actual purchased electricity costs billed in previous periods. The power cost will be calculated using the billing units defined in the same manner as defined in the applicable Wholesale rate to the Cooperative including any ratchet provisions in the wholesale rate. The Customer's billing units for power cost may be adjusted for line losses, as determined by the Cooperative, to calculate the Customer's power cost at the wholesale supplier's metering point to the Cooperative. BIG COUNTRY ELECTRIC COOPERATIVE, INC. Tariff Section 11 Sheet No. 56.3 Revision Page for Electric Service SECTION TITLE: EFFECTIVE DATE: RATE SCHEDULES SEPTEMBER 15, 2011 APPLICABLE TO ALL AREAS D. Monthly Minimum Charge. Each billing period the Customer shall be obligated to pay the higher of the following charges as a minimum, whether or not any energy is actually used: (1) The Customer Charge plus the NCP Demand Charge. (2) The minimum required in the Agreement for Electric Service. E. Power Factor. The Member agrees to maintain a power factor of not less than ninety-eight percent (98%). ShouId the Member's lagging power factor at the time of maximum demand during the month be determined to be below ninety-eight percent (98%), the Member's maximum demand for billing purposes may be adjusted by multiplying the maximum demand by ninety-eight percent (98%) and dividing by the lagging power factor at the time of such maximum demand. F. Billing Adjustments. This rate is subject to billing adjustments except Power Cost Recovery Factor as provided for in Section 243 Billing Adjustments. G. Agreement. In order to provide service to a consumer, an agreement for electric service with a fixed term may be required by the Cooperative. This rate schedule may be changed by order or consent of regulatory authorities having jurisdiction. Service hereunder is subject to the Cooperative's tariff for electric service.