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HomeMy WebLinkAboutCarlsbad Energy Center LLC; 2018-01-11;RECYCLED WATER SERVICE AGREEMENT between CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water District Act of 1911 and a Subsidiary District of the City of Carlsbad and CARLSBAD ENERGY CENTER LLC This Recycled Water Service Agreement ("Agreement") is made and entered into this _ll_th day of .:Yt>-V\..J..O..,.. ""j , 2018, (Effective Date) by and between CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water District Act of 1911 and a Subsidiary District of the City of Carlsbad (CMWD), and Carlsbad Energy Center LLC, a Delaware limited liability company (CECL). Each of CMWD and CECL is a "Party" and collectively they are the "Parties". RECITALS A. CECL is constructing a new power generation facility known as the Carlsbad Energy Center Project ("CECP") within the City of Carlsbad. B. CECL desires to use recycled water at the CECP as part of the operation for generating electric power and has requested recycled water service from CMWD. C. By letter dated January 8, 2015, CMWD stated its ability to serve the recycled water needs of the CECP. D. CECL previously entered into with CMWD that certain agreement titled, "Agreement for Reimbursement of Costs for the Construction of a Recycled Water Pipeline to Serve the Carlsbad Energy Center Project," dated as of February 10, 2015 ("Construction Reimbursement Agreement"). E. With reimbursement by CECL and use of easements granted by CECL, CMWD constructed a recycled water pipeline to the site on which the CECP is located. F. CMWD distributes recycled water that may either be produced at CMWD's Carlsbad Water Recycling Facility, Vallecitos Water District's Meadowlark Reclamation Plant or a blend from both. Recycled water quality and production from each facility is regulated by separate permits issued by the California Regional Water Quality Control Board, San Diego Region, and additionally, the use of this water within CMWD's service area is regulated by California Regional Water Quality Control Board, San Diego Region Order No. R9-2016-0183. G. CECL and CMWD now wish to memorialize terms and conditions under which recycled water will be made available for use in connection with the operation of the CECP. NOW, THEREFORE, CMWD and CECL agree as follows: 1. Provision of Recycled Water. During the term of this Agreement, CMWD will make available tertiary-treated, recycled water for use by CECP in a volume not to exceed 215 acre-feet per year, and which shall not exceed 464,000 gallons per day. While retaining the right to insist on the remedial action set forth in Section l .d., below, CECL agrees to indemnify and hold harmless CMWD and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses resulting from interruptions or reductions in delivery of recycled water for any reason, including but not limited to treatment facility shutdowns caused by acts of God, regulatory requirements, orders by regulatory bodies, or equipment failure. a. Rates. CECL shall pay for recycled water according to the rate schedule adopted by the CMWD which is applicable at the time the recycled water is delivered. b. Terms of Service. CECL shall take the recycled water subject to any terms and conditions adopted by CMWD through ordinance which are applicable to the delivery of recycled water service. c. Quality of Recycled Water. Recycled water delivered to the CECP shall be disinfected tertiary recycled water compliant with CMWD' s Master Recycling Permit for the Carlsbad Water Recycling Facility issued by the California Regional Water Quality Control Board as Order No. R9-2016-0183, or most recent permit if superseded. d. Remedial Action. CMWD shall undertake reasonable remedial measures if the recycled water does not meet the water quality standards set forth in Paragraph l .c. of this Agreement. 2. Disputes/Claims. If a dispute should arise regarding the performance or interpretation of this Agreement, the following procedure shall be used to resolve any question of fact or interpretation not informally resolved by the Parties. Such questions, if they become identified as a part of a dispute among persons operating under the provisions of this Agreement shall be reduced to writing by an officer of CECL or the General Manager of the Carlsbad 2 Municipal Water District ("GM"). A copy of such documented dispute shall be forwarded to both parties involved along with recommended methods of resolution which would be of benefit to both Parties. The GM or officer, upon receipt, shall reply to the letter, including a recommended method ofresolution within ten (10) days. If the recommended resolution is unsatisfactory to the aggrieved Party, the aggrieved Party may request an informal conference to try to informally resolve the disagreement. The meeting shall be held within fourteen (14) days of the request. If an informal meeting is not requested or if an informal meeting failed to resolve the disagreement, a letter outlining the dispute shall be forwarded to the CMWD Board of Directors for their resolution through the office of the Executive Manager. The CMWD Board of Directors may, but is not obligated to, resolve the dispute. If the CMWD Board of Directors considers the dispute, and directs a solution, the action of the CMWD Board of Directors shall be binding upon the Parties, although nothing in this procedure shall prohibit the Parties from seeking remedies available to them at law. 3. Notices. Unless otherwise specifically provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery, or by Federal Express (or similar reputable express delivery service), or as of the second business day after mailing by United States Certified Mail, return receipt requested, postage prepaid, addressed as shown below. Notices required to be given to CECL shall be addressed as follows: Carlsbad Energy Center LLC 804 Carnegie Center Princeton, NJ 08540 Notices to CMWD shall be delivered to the following: Carlsbad Municipal Water District c/o City of Carlsbad Attention: General Manager 5950 El Camino Real Carlsbad, CA 92008 Each Party shall notify the other immediately of any changes of address that would require any notice delivered hereunder to be directed to another address. 4. Transfer by CECL. The obligations and benefits of this Agreement may be transferred by CECL to another entity upon prior approval of CMWD, such approval not to be unreasonably withheld. 3 5. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute one and the same instrument. 6. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of California, and venue shall reside in San Diego County, California. 7. Complete Agreement. This Agreement contains the entire agreement between the Parties with respect to the subject matter contained herein, and supersedes all negotiations, discussions, and prior drafts with respect to this subject matter. 8. Amendment. This Agreement may be amended by a written instrument executed by CMWD and CECL. 9. Term. This Agreement shall be effective as of the date first above written, and shall terminate after five (5) years. 10. No Third-Party Beneficiaries. This Agreement shall not be deemed to confer any rights upon any individual or entity which is not a party hereto, and the Parties hereto expressly disclaim any such third-party benefit. 11. Severability. The invalidity or unenforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity or enforceability of any other provision hereof. IN WITNESS WHEREOF, by the signatures of their authorized representatives, the Parties have caused this Agreement to become effective as of the Effective Date. 4 CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water District Act of 1911 and a Subsidiary District of the City of Carlsbad By:IJJvdwh Name: Wt fJ t, 'j Glf +11,1.JbG'flS Its: c~~rcJ ~ APPROVED AS TO FORM: HEATHER STROUD, Deputy General Counsel CARLSBAD ENERGY CENTER LLC, a Delaware limited liability company By: <;f;Ct'&:' . Name: J o'hV°"' Ch : l \e VIA, Its: ----------- 5