HomeMy WebLinkAbout2005-05-17; Municipal Water District; 590; Amendment to Water Purchase AgreementA
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- TITLE:
APPROVAL OF AMENDMENT TO WATER
IEPT. PW/M&O PURCHASE AGREEMENT
RECOMMENDED ACTION:
Adopt Resolution No. 1243 approving an Amendment to the Water Purchase
Agreement dated September 28, 2004, between the Carlsbad Municipal Water District
and Poseidon Resources.
ITEM EXPLANATION:
Representatives of the City of Carlsbad (Carlsbad Municipal Water District) and
Poseidon Resources have been meeting to determine a mutually acceptable limitation to
the Boron constituent in the seawater desalination product water. The original Water
Purchase Agreement between the CMWD and Poseidon dated September 28, 2004,
allowed 180 days from the approval of the agreement to complete the determination of
Boron limits. Because the determination of those limits has not yet been completed,
staffs of both the City and Poseidon have agreed to formally request an extension of the
previously mentioned 180-day limit. As a result, Poseidon has agreed to extend the time
limit on this water quality issue to December 31,2005.
ENVIRONMENTAL REVIEW:
This is no environmental impact as a result of this action.
FISCAL IMPACT:
This is no fiscal impact as a result of this action
EXHIBITS: -
1. Resolution’ No. 1243 approving an Amendment to the Water Purchase Agreement
dated September 28, 2004, between the Carlsbad Municipal Water District and
Poseidon Resources his is no fiscal impact as a result of this action.
2. Amendment to Water Purchase Agreement DEPARTMENT CONTACT: Kurt Musser; 760/438-2722; kmuss@ci.carlsbad.ca.us
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EXHIBIT 1.
RESOLUTION NO. 1243
A RESOLUTION OF THE BOARD OF DIRECTORS OF
THE CARLSBAD MUNICIPAL WATER DISTRICT,
CARLSBAD, CALIFORNIA APPROVING AN AMENDMENT
TO THE WATER PURCHASE AGREEMENT DATED
SEPTEMBER 28, 2004 BETWEEN THE CARLSBAD
MUNICIPAL WATER DISTRICT AND POSEIDON
RESOURCES (CHANNELSIDE) LLC.
WHEREAS, on September 28, 2004, the Board of Directors of the Carlsbad Municipal
Water District approved a Water Purchase Agreement with Poseidon Resources (Channelside)
LLC to purchase from Poseidon, up to twenty-five (25) MGD of Product Water, subject to the
terms, conditions and arrangements set forth in the Agreement; and
WHEREAS, the District and Poseidon desire to continue to use commercially reasonable
efforts to determine mutually-acceptable concentration limits for Boron contemplated in the
Agreement; and
WHEREAS, the Agreement allows 180 days from the approval of the Agreement to
complete the determination of Boron limits; and
WHEREAS, the determination of Boron limits has not yet been completed; and
WHEREAS, the Carlsbad Municipal Water District and Poseidon Resources have agreed
to extend the time allowed to complete the determination of Boron limits to December 31, 2005.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, as
follows:
1. That the above recitations are true and correct.
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2. That the Board of Directors of the Carlsbad Municipal Water District hereby approve
the Amendment to the Water Purchase Agreement between the Carlsbad Municipal
Water District and Poseidon Resources (Channelside) LLC, attached as Exhibit “A
and incorporated herein by reference.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Board of Directors of
the Carlsbad Municipal Water District held on the 17th day of May 1
2005 by the following vote, to wit:
AYES:
NOES: None
ABSENT: Board Member Lewis
Board Members Hall, Kulchin, Packard, Sigafoose
MATT HALL, Vice-president
ATTEST / /
(SEAL)
EXHIBIT “A”
AMENDMENT TO WATER PURCHASE AGREEMENT
THIS AMENDMENT TO WATER PURCHASE AGREEMENT (this “Amendment”), dated
as of May E2005 is made by and between the CARLSBAD MUNICIPAL WATER DISTRICT, a
municipal water district (the “District”), and POSEIDON RESOURCES (CHANNELSIDE) LLC, a
Delaware limited liability company (“Poseidon”).
RECITALS
WHEREAS, the District and Poseidon previously entered into that certain Water Purchase
Agreement (the “Agreement”), dated as of September 28,2004, and capitalized terms that are used in
this Amendment without definition and that are defined in the Agreement are used herein as so
defined; and
WHEREAS, pursuant to the terms of the Agreement, Poseidon has agreed to sell to the
District, and the District has agreed to purchase from Poseidon, up to twenty-five (25) MGD of
Product Water, subject to the terms, conditions and arrangements set forth in the Agreement; and
WHEREAS, the District and Poseidon desire to continue to use commercially reasonable
efforts to determine mutually-acceptable concentration limits for Boron contemplated in the
Agreement.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged by the Parties hereto, the
Parties covenant and agree as follows:
1. Amendment. Section 8.3 of the Agreement is hereby amended by deleting it in its
entirety and substituting the following in lieu thereof:
8.3. Finalization of Water Quality Specification for Boron. The Parties
shall use commercially reasonable efforts to determine mutually-acceptable
concentration limits for Boron, to be included in Schedule 8.2, on or before
December 3 1 , 2005; provided, however, that such date may be extended by mutual
agreement of Poseidon and the Executive Director of the District.
2. Controllinn Law. This Amendment shall be governed by the laws of the State of
California in accordance with Section 21.5 of the Agreement.
3. Counterparts and Facsimile Signatures. This Amendment may be executed in
any number of duplicate originals or counterparts, each of such duplicate originals or counterparts
shall be deemed to be an original and all taken together shall constitute one and the same instrument.
The signature page of any counterpart may be detached therefrom without impairing the legal effect
of the signature(s) thereon, provided such signature page is attached to any other counterpart
identical thereto except for having an additional signature page executed by any Party. Each Party
agrees that each other Party may rely upon the facsimile signature of each other Party on this
DSMDB.1902198.1
EXHIBIT 2 Y
Amendment as constituting a duly authorized, irrevocable, actual, current delivery of this
Amendment as fully as if this Amendment contained the original ink signature of the Party supplying
a facsimile signature.
4. Amendment and Modification Only. The Parties herebyratifjr and confirm all oftheir
obligations under the provisions of the Agreement as amended by this Amendment, and except as
amended by this Amendment, all of the terms and conditions of the Agreement shall remain
unmodified and in full force and effect.
IN WITNESS WHEREOF, the District and Poseidon, intending to be legally bound by the
provisions herein contained, have executed this Amendment to Agreement effective as of the date
first above written.
CARLSBAD MUNICIPAL WATER DISTRICT
Name: MATT HALL,
Title: Vice-Pres ident
POSEIDON RESOURCES (CHANNELSIDE)
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DSMDB. 1902 198.1