Res 2005-105 - Laserfiche WebLink

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The City of San Marcos Facilities Service Contract Company's assumption of risk under this subsection is subject to the limitations provided in subsection (C) of this Section. (C) Limitations on the Company's Familiarity with Facilities and Assumption of "As-Is" Risk. It is specifically understood that the Company's familiarity with the Facilities and assumption of the "as-is" risk of the condition of the Facilities as provided in subsection (A) of this Section is limited by and shall not extend to the following: (1) Pre-Existing Environmental Conditions; (2) Specified Site Conditions; (3) The actual condition of structures and equipment which could not have been known to the Company prior to the Contract Date or could not have been verified by the Company prior to the Contract Date without cutting through such equipment or structures, draining or removing material therefrom or unreasonably materially interfering with the operation of the Facilities; (4) Flows exceeding an annual average daily flow of 7.2 MGD, 9.0 MGD average maximum month and 18.0 MGD two-hour peak; (5) The Influent organic and nutrient loadings m the applicable Influent Parameter Group in Section 11.3 are exceeded as a result of new industrial or commercial dischargers. (6) The City fails to reasonably maintain its Industrial Pretreatment Program appropriately to control negative impacts on the quality and quantity of wastewater entering the Facilities. The City shall retain all obligations arising out of any third party Legal Proceedings resulting from Pre-Existing Environmental Conditions or Specified Site Conditions at the Facilities, except to the extent such Legal Proceeding is based in whole or in part on a Company Breach. (D) Grace Period on Assumption of "As-Is" Risk after Certain Events. Following (i) completion of the City Capital Project and after each Capital Modification that modifies the capacity or design configuration of the Facilities, the Company will be provided a lO-month grace period following completion of such City Capital Project or Capital Modification; and (ii) when average flow milestones of 6.0, 6.5, and 7.0 MGD are reached, the Company will be provided a grace period during the initial six consecutive month period when each such average flow milestone is reached. During such grace periods, the Company will have the opportunity to verify and document the operation and performance of the Facilities under the new conditions, and may request relief from the Performance Guarantees or modification of the Facilities if under the new conditions the Facilities cannot be operated in a manner so as to comply with the Performance Guarantees. If such relief is requested, the City will evaluate the request and may request additional information. The City shall grant relief to the extent the City determines that the Facilities, under the new conditions, cannot be 38