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HomeMy WebLinkAboutSCVWD - Producer-Wholesaler Agreement for Supply of Recycled Water SCVWD AGMT. NO. A2280-1 (See Also A2280-2 and A2280-3) Id-Ci :J PRODUCER - WHOLESALER AGREEMENT FOR SUPPLY OF RECYCLED WATER BETWEEN SOUTH COUNTY REGIONAL WASTEWATER AUTHORITY AND SANTA CLARA VALLEY WATER DISTRICT This Agreement is made and entered into on this 5th day of OCTOBER 1999, (the "Effective Date") between the South County Regional Wastewater Authority. (hereinafter referred to as "Producer") and the Santa Clara V alley Water District (hereinafter referred to as "Wholesaler"). Producer and Wholesaler may be referred to herein individually as a "Party" or collectively as the "Parties." RECITALS A. Producer and Wholesaler are actively involved in regional efforts to develop recycled water supplies; and B. Producer and Wholesaler recognize that sustainable water resource management requires integration of water supply and wastewater discharge limitations; and C. Producer and Wholesaler intend to develop a recycled water master plan for expanded distribution facilities for the distribution of recycled water in the service area of Producer and intend that said master plan shall be consistent with overall water supply planning for the south Santa Clara County region; and D. Wholesaler's Board of Directors has reaffirmed its commitment to recycled water by passing Resolution 97-60 in support of the expanded use of recycled water; and E. Producer and Wholesaler are supporting the development and construction of a recycled water distribution system yielding from 5,000 to 15,000 acre-feet annually by the year 2020; and F. Included within said system are facilities to treat such recycled water at the Producer's regional wastewater treatment plant (the "WWTP"); and G. The WWTP is permitted by the State of California Central Coast Regional Water Quality Control Board to distribute and use treated effluent as recycled water; and H. Recycled water to be delivered by Producer to Wholesaler will be disinfected tertiary recycled water, in accordance with the provisions of Title 22 of the California Code \KHM\436311.08 94-091406943001 -1- of Regulations and applicable requirements of the California Department of Health Services; and I. Wholesaler wishes to acquire from Producer the quantity of recycled water which it can sell to Retailers (as defined below) and End Users (as defmed below). AGREEMENT PROVISIONS For and in consideration of the foregoing recitals and of the mutual promises and covenants herein contained, the Parties hereto agree as follows: A. ARTICLE A. INTRODUCTORY PROVISIONS 1) Definitions - When used in this Agreement, the following terms shall have the meanings hereinafter set forth: a) "End User" shall mean the ultimate user of recycled water. b) "Fiscal Year" shall mean each 12-month period during the term of this Agreement commencing July 1 st of one year and terminating June 30th ofthe next succeeding year, both dates inclusive. c) "Point of Connection" shall mean a recycled water connection between Producer's WWTP and Wholesaler's distribution system. See Exhibit "B" attached hereto and incorporated herein by this reference. d) "Retailer", or "Other Retailer", shall mean any entity, public or private, contracting with Wholesaler for a supply of recycled water. 2) Term and Renewal - This Agreement shall commence on the Effective Date and be in force for twenty (20) years. Following the original twenty (20) year Agreement term, the Agreement term shall be automatically renewed and extended one (1) year, year-by-year unless terminated in accordance with the provisions of Article E herein. B. ARTICLE B. RECYCLED WATER SERVICE PROVISIONS 1) Recycled Water Delivery Limitations a) Wholesaler understands and acknowledges that Producer is charged with the responsibility to operate its sewerage systems in a manner which it determines to be most beneficial to the users thereof. The rights of Wholesaler to recycled water under this \KHM\436311.08 94-091406943001 -2- \KHM\436311.08 94-091406943001 Agreement pertain only to the recycled water which actually is produced at the WWTP. Nothing contained herein shall be construed to qualify in any manner Producer's right to operate the WWTP at such level as it determines, in its absolute discretion to be appropriate, or to discontinue the operation of the WWTP. Any right of Wholesaler to recycled water pursuant to this Agreement shall be subordinate to the rights and responsibilities of Producer as herein set forth. b) Nothing herein shall be construed to commit any portion of the recycled water from the WWTP beyond that which will be delivered by Wholesaler to its customers for reasonable beneficial uses. Any non-emergency planned reduction that would reduce the availability of recycled water to Wholesaler shall require Producer to give to Wholesaler at least 60 days advance written notice . thereof. Wholesaler shall have an opportunity to meet and confer with Producer on the issue. c) Any circumstances beyond Producer's control which cause a reduction in the recycled water available for distribution from the WWTP may, at the discretion of Producer, result in a temporary or permanent decrease in recycled water available to Wholesaler under this Agreement in such. amounts as Producer determines are necessary in order to fairly allocate any such reduced flow among all End Users of recycled water from the WWTP. Producer shall attempt to allocate reduced flow among all of the End Users of recycled water produced at the WWTP in proportion to the actual use in the previous fiscal year of recycled water produced at the WWTP; however, Producer may depart from such proportional allocation to accommodate differing priorities among End Users of the recycled water. Wholesaler shall have the right to meet and confer with Producer regarding any such proposed non- proportional allocations. The reduced availability will continue in effect until such time as the WWTP and recycled water transmission and distribution system have been restored to normal operations, provided that Producer must use its reasonable best -3- efforts to restore the WWTP to normal operations as soon as possible. d) Producer and Wholesaler acknowledge that Producer may sell flows of recycled water that exceed the Annual Delivery Quantity, as defined below, for a given Fiscal Year to other wholesalers or End Users, and that Wholesaler may sell water to be used by End Users outside of the Producer's service area. However, the foregoing rights are limited by the following obligations of the Parties: (1) If Producer proposes to sell increased flows of recycled water to another wholesaler, it shall first give Wholesaler written notice and a reasonable opportunity to agree to purchase such water on the same terms and conditions as offered to the other proposed wholesaler; and (2) Wholesaler must use its reasonable best efforts to develop markets by encouraging use of recycled water through its programs, policies and rate setting, and to sell all recycled water it receives from Producer for ultimate use in the service area of Producer. If Wholesaler proposes to offer any recycled water purchased from Producer for ultimate end use in any area outside of Producer's service area, it shall first give Producer written notice and a reasonable opportunity to meet and confer on the issue. All End Users out of Producer's service area must be approved and permitted by Producer. e) The Parties acknowledge that in unusual conditions, an emergency discharge of recycled water by Producer may be necessary, and such discharge shall not be deemed a violation of this Agreement. 2) Recycled Water Delivery Quantities a) Subject to the provisions hereafter set forth, Producer agrees to make available each Fiscal Year during the term hereof to Wholesaler, recycled water produced at the WWTP. b) , Annually, Producer and Wholesaler shall meet and confer in good faith to mutually determine the anticipated minimum annual delivery quantity (the "Annual Delivery Quantity") for the ensuing Fiscal Year and to determine projected minimum Annual Delivery Quantities for the next ensuing three Fiscal Years. Subject to the \KHM\436311.08 -4- 94-091406943001 terms of this Agreement, for any Fiscal Year for which the Annual Delivery Quantity is binding, Producer shall produce and Wholesaler shall purchase in such Fiscal Year, at least the Annual Delivery Quantity of recycled water established for such Fiscal Year. c) If Producer and Wholesaler cannot mutually agree on the Annual Delivery Quantity for the ensuing Fiscal Year at the annual meeting, then the Annual Delivery Quantity for the ensuing Fiscal Year shall be set at fifty percent (50%) of the highest annual amount of recycled water delivered to Wholesaler (as measured by the wholesale delivery metering referred to in subparagraph 3 below) in any of the five Fiscal Years immediately prior to the ensuing Fiscal Year. d) The Annual Delivery Quantities for Fiscal Years 1999-2000 through 2003-2004 are set forth in Exhibit A, attached hereto and by this reference made a part hereof. The Annual Delivery Quantities established pursuant to this Paragraph 2 shall be non- binding for Fiscal Years 1999-2000,2000-2001, and 2001-2002. For Fiscal Year 2002-2003 and subsequent Fiscal Years, the Annual Delivery Quantity so established shall be binding upon the Parties. 3) Metering and Measurement of Flows - Producer will measure all recycled water delivered to Wholesaler. This wholesale delivery (master) metering will be in addition to any retail (customer) metering conducted by the Wholesaler and/or Retailer(s) and/or End Users (collectively, the "Customer Metering"). The sum total of the Customer Metering shall govern billings to Wholesaler and shall also be used for reporting Wholesaler's recycled water usage to regulatory agencies. Where Wholesaler or Producer act as End Users, they shall also report usage by metering. 4) Recycled Water Quality and Pressure \KHM\436311.08 94-091406943001 a) All recycled water to be delivered by Producer to Wholesaler pursuant to the terms of this Agreement will be of such quality that the same may be used for all purposes allowed for disinfected -5- tertiary recycled water. The recycled water to be delivered to Wholesaler at a Point of Connection (see Exhibit B) pursuant to this Agreement shall range in pressure from 90 to 100 pounds per square inch (psig) and conform to the quality requirements set forth in the then current disinfected tertiary recycled water quality and monitoring regulations specified in Title 22, Division 4, Chapter 3: Wastewater Reclamation Criteria (California Code of Regulations), as further regulated by the California Regional, Water Quality Control Board, the California Department of Health Services and all other federal, state and local agencies having jurisdiction over recycled water quality. b) The Parties recognize that factors beyond the control of Producer could cause operational difficulties at the WWTP resulting in the temporary production of recycled water which does not meet the current requirements referenced in the previous Subparagraph for the intended uses of the End Users. In such cases, Producer shall temporarily suspend deliveries of recycled water to Wholesaler from Producer's facilities. Producer shall use its best efforts to re- establish the production of recycled water of a suitable quality and pressure as soon as reasonably possible and shall re-establish Wholesaler's supply of such water accordingly. c) Producer shall immediately notify Wholesaler if recycled water from the WWTP does not meet the currently applicable regulatory requirements or if deliveries of recycled water will be suspended. Such notice shall be given verbally to Wholesaler, telephone (408) 395-9309, between 8:00 a.m. and 4:30 p.m. on weekdays, and after hours, weekends, and holidays, with a follow-up written confirmation by personal delivery or FAX to (408) 448-4957 on the same day verbal notice is given, or on the next business day if verbal notice is not given during business hours. 5) Recycled Water Limitation of Use - Recycled water delivered by Producer pursuant to this Agreement has limited uses, and Wholesaler agrees to provide the recycled water it receives hereunder only for the use of those End Users who have obtained the appropriate permit from Producer. \KHM\436311.08 -6- 94-091406943001 6) Permits - This Agreement is conditioned on obtaining the necessary permits relating to the use of recycled water and the development and construction of a regional recycled water distribution system. Each of the Parties undertakes and agrees, severally and jointly as appropriate, to file any and all applications and undertake such proceedings as may be necessary to enable each Party to carry out the undertakings contemplated herein, and to pursue each application and proceedings in good faith and due diligence. Producer will act as lead agency in obtaining, complying with, and maintaining the permits that are applicable to the WWTP. However, both Producer and Wholesaler are responsible, where applicable, to comply with the regulations set forth in these permits. C. ARTICLE C. RECYCLED WATER FACILITIES 1) Master Plan \KHM\436311.08 94-091406943001 a) The Parties shall work together to create and approve a master plan (the "Master Plan") for the design and construction of the contemplated expanded distribution facilities for the distribution of recycled water in the service area of Producer (the "Expanded Distribution Facilities"). The Parties intend that the Master Plan shall promote the use of recycled water throughout the service area of Producer, and shall be consistent with overall water supply planning for the south Santa Clara County region. The cost of outside consultants to prepare the Master Plan shall be split evenly by the Parties, and both Parties shall participate in the consultant. selection process. The currently contemplated Expanded Distribution Facilities would yield from 5,000 to 15,000 acre-feet annually of recycled water by the year 2020. b) The Master Plan shall include a five-year Capital Improvement Program (which shall contain a five-year capital improvement budget) that shall include the anticipated WWTP improvements and recycled water distribution system extensions for the next ensuing five (5) years. The Master Plan and its Capital Improvement Program shall be updated annually, and the Parties shall direct their staffs to meet annually on or before October 1 to prepare the update for consideration by the governing board of -7- each Party in connection with the adoption of each Party's capital improvement program and/or capital improvement budget for the next fiscal year. c) Wholesaler shall pursue back-up source(s) of water for the distribution system (e.g., raw or well water) that will provide a reliable, uninterrupted flow of water to End Users in the event circumstances beyond Producer's control cause a reduction or temporary loss of flow of recycled water from Producer, and plans for such back-up sources shall be included in the Capital Improvement Program to be constructed within the first five (5) years of the term of this Agreement. 2) Construction of Facilities a) Recycled water delivered to Wholesaler pursuant to this Agreement shall be provided by Producer from the WWTP facility. Except as subject to any other agreements, Producer agrees to construct or expand at no cost to Wholesaler or Retailer(s), its WWTP facility up to the Point(s) of Connection. b) Wholesaler agrees that construction of its distribution facilities up to the End User meter will be at no cost to Producer. Wholesaler shall provide service taps from its distribution facilities as well as service lines to each End User meter, from which recycled water may be received by the Retailer for sale to End Users. Neither Wholesaler nor Producer is obliged to purchase or install End User meters. c) Although construction of the Expanded Distribution Facilities agreed to in the Master Plan shall be the responsibility of Wholesaler following the adoption of the Master Plan by both Parties, the Parties desire to expedite the start of construction during fiscal year 1999-2000. In order to do so, Producer shall design and construct certain initial facilities (the "Stage 1 Facilities",. described in Exhibit "C" attached hereto and incorporated herein by this reference) and be reimbursed for all related costs as described below. Wholesaler shall have the right to review final bid documents before advertisement for bids. \KHM\436311.08 94-091406943001 -8- \KHM\436311.08 94-091406943001 Wholesaler shall assist with the construction inspection of the Stage 1 Facilities. The following procedures shall apply to the design and construction by Producer of the Stage 1 Facilities (as well as to any other facilities that Wholesaler and Producer may agree in the future to have Producer design and construct at Wholesaler' s expense) i) At least seven (7) days prior to the commencement of any design contract or consulting contract, or to the scheduled award of any construction contract, for the Stage 1 Facilities, Wholesaler shall deposit with Producer a sum equal to one hundred-percent (100%) of the anticipated contract amount plus a mutually agreed upon contingency amount. The Producer Administrator and the Wholesaler General Manager, or their respective designees, will . determine an appropriate contingency for each such contract. These monies will be encumbered by Producer and used to provide payment on the contract. Upon demand by Producer, and when approved in writing by Wholesaler's General Manager, additional monies will be deposited by Wholesaler with Producer for construction change orders and/or claims awarded to the contractor that increase the total amount due the contractor to an amount greater than the monies previously deposited, as described above. The amount of the additional monies shall be equal in amount to the difference between the sum of the final payment plus additional change orders and/or claims and the amount previously deposited. Producer shall have the authority to approve individual change orders up to $25,000 that do not increase the total construction contract amount above the original construction contract amount plus the agreed-upon contingency. Wholesaler approval is required for individual construction change orders over $25,000 and for any construction change orders that would increase the construction contract amount above the original ii) iii) -9- construction contract amount plus the agreed-upon contingency. Both Producer and Wholesaler must approve settlement of any construction claims. iv) Upon construction close-out, Producer will refund to Wholesaler all monies on deposit that are remaining after the filing of the Notice of Completion, final payment, and the settlement of all outstanding claims on the project. Payment of any refund will be made within 45 days of the date of the Notice of Completion or within 45 days of the last settlement of outstanding claims, whichever is later. Included in this refund will be any interest earned by the deposited money that was not actually paid to contractor(s). 3) Ownership, Operation and Maintenance of Facilities. Wholesaler shall own, operate and maintain at no cost to Producer or Retailer(s), all of its distribution facilities from the Point ofConnection(s) up to the End User meter. At Wholesaler's request or as necessary to comply with permit conditions or State or Federal law, Producer may assist with the maintenance and emergency repair of Wholesaler's distribution facilities. Wholesaler shall reimburse Producer for reasonable and necessary expenses incurred in carrying out such maintenance or repair. 4) Monitoring - Producer's responsibility for management and monitoring the recycled water delivered hereunder shall cease upon delivery to Wholesaler at the Point of Connection. Operation, management, maintenance and monitoring of facilities under the control of the Wholesaler shall be the sole responsibility of Wholesaler. Producer agrees to accept responsibility for conformance to all monitoring, reporting, and any other requirements assigned to the "recycled water agency" in Title 22 of the California Code of Regulations, and all applicable regulations ofthe State of California Regional Water Quality Control Board and the California Department of Health Services. 5) Reporting - Wholesaler shall provide Producer the following reporting information: a) Quarterly (or annual, at Producer's option) billing and recycled water use records (with individual customer information) within 30 \KHM\436311.08 94-091406943001 -10- days of the close of each fiscal quarter (or Fiscal Year, as the case may be) to the extent permissible by law. b) End User site self-monitoring reports and any other data required by the State of California Regional Water Quality Control Board. c) Adequate notification of Wholesaler inspections, start-ups and disconnections. D. ARTICLE D. PAYMENT PROVISIONS 1) Recycled Water Pricing Policy - The Parties agree that the rates charged by Producer to Wholesaler and the rates charged by Wholesaler to Retailers should provide an economic incentive to customers to use. recycled water. 2) Recycled Water Rate Review - Producer shall charge for the delivery of recycled water in accordance with the rate schedule for recycled water service as such rate schedule is established by the Producer and approved by Producer's governing board. Producer shall review and establish said rate schedule every Fiscal Year. Wholesaler shall be given an opportunity to meet and confer upon the pricing policy and rates with Producer prior to setting wholesale recycled water rates, to ensure compatibility with the intent of this Agreement. 3) Billings - Wholesaler agrees to make quarterly (or annual, at Producer's option) payments for the total amount of recycled water delivered in each fiscal quarter (or Fiscal Year, as the case may be) at the rates set according to the procedures herein. 4) Obligation to Pay for Available Water - Wholesaler is obligated to pay Producer for the Annual Delivery Quantity of recycled water for each Fiscal Year, assuming such quantity of recycled water is made available to it by Producer. Producer shall bill Wholesaler at the close of each Fiscal Year for the difference, if any, between the Annual Delivery Quantity and the actual quantity of recycled water taken by Wholesaler during that Fiscal Year. 5) Time and Method of Payment - Quarterly (or annual, at Producer's option) payments shall be made by Wholesaler within 30 days of billing by Producer. \KHM\436311.08 11 94-091406943001 - - E. ARTICLE E. TERMINATION 1) General - This Agreement may be terminated upon the occurrence of the events described in the following paragraphs. 2) Failure to approve Master Plan or Capital Improvement Budget - If a Master Plan along with a capital improvement budget for the then current Fiscal Year has not been approved by the respective governing Boards of both Parties by the second anniversary of the Effective Date ofthis Agreement (the "Plan Date"), then either Party may elect to terminate this Agreement by serving a written notice (the "Termination Notice") on the other Party within 180 days following the Plan Date. In the event of such termination: a) This Agreement shall be deemed terminated as of the last day of the Fiscal Year during which the Termination Notice was given. b) Pursuant to Paragraph 2 of Article C herein, it is the contemplation that prior to the date of the Termination Notice, Producer shall have constructed at Wholesaler's expense some or all of the Stage 1 facilities of the Expanded Distribution Facilities. Producer shall have the option to purchase those constructed facilities from Wholesaler, including easements and any associated real estate required for their use or maintenance. Producer may exercise this option on the following terms: i) Producer shall give written notice of its intent to purchase said facilities within 180 days following the date ofthe Termination Notice. ii) The purchase price shall be equal to ninety percent of Wholesaler's book cost for the improvements. Upon request, Wholesaler shall furnish appropriate accounting data and information to Producer to establish the purchase pnce. iii) Wholesaler shall assign to Producer all water delivery contracts with Retailers and End Users using the Stage 1 Facilities along with any applicable consulting or construction contracts. -'. \KHM\436311.08 94-091406943001 -12- 7) Impasse over Rates or Delivery Quantities - If the Parties are unable to agree upon Annual Delivery Quantities for two Fiscal Years in a row, then this Agreement shall be deemed terminated as of the end of the second Fiscal Year for which no agreement on Annual Delivery Quantity was reached. If Wholesaler is unwilling to accept a new annual rate set for recycled water by Producer (following mediation, if requested, as provided for herein), then this Agreement shall be deemed terminated at the end of the Fiscal Year for which such impasse is reached. Also, Producer can declare an impasse if Wholesaler fails to set rates that give sufficient economic incentive to End Users to use recycled water over all other available water. 8) Buyout Upon Termination - If this Agreement is terminated in accordance with the provisions of Paragraphs 3, 4,5,6, or 7 of this \KHM\436311.08 -13- 94-091406943001 Article, then Producer shall have the option to purchase those portions of the Expanded Distribution Facilities (along with any additional components of Wholesaler's distribution facilities necessary to distribute recycled water in Producer's service area) that have been constructed or are under construction from Wholesaler, including easements and any associated real estate required for their use or maintenance. Producer may exercise this option on the following terms: a) Producer shall give written notice of its intent to purchase said facilities within 180 days following the effective date of the termination. b) The purchase price shall be equal to ninety percent of Wholesaler's book cost for the improvements. Upon request, Wholesaler shall furnish appropriate accounting data and information to Producer to establish the purchase price. c) Wholesaler shall assign to Producer all water delivery contracts with Retailers and End Users using the Expanded Distribution Facilities along with any applicable consulting or construction contracts. F.. ARTICLE F. GENERAL PROVISIONS 1) Amendments - This Agreement may be amended at any time by mutual written agreement of the Parties. The Parties agree that in the event of action by an outside governmental body produc~ng a prospective change in the volume or use of recycled water by Wholesaler's customers, the Parties will make such amendments to Exhibit A of this Agreement as the circumstances may reasonably and equitably require. 2) Notices - All notices or other writings in this Agreement to be given by either Party to the other, shall be deemed to have been given or when made in writing and deposited in the United States mail, registered, or certified, postage prepaid, and addressed as follows: To Wholesaler Stan Williams, General Manager Santa Clara V alley Water District 5750 Almaden Expressway San Jose, CA 95118 \KHM\436311.08 94-091406943001 -14- To Producer South County Regional Wastewater Authority Jay Baksa, Authority Administrator City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 The address of either Party may be changed upon written notice given by such Party as above provided. Notices shall also be deemed given when delivered by personal delivery, with a confirmation copy by first class mail. 3) Separability - If anyone or more of the covenants or agreements set forth in this Agreement on the part of Producer or Wholesaler, or either of them, to be performed should be contrary to any provision of law or contrary to the policy of law to such extent as to be unenforceable in any court of competent jurisdiction, then such covenant or covenants, agreement or agreements, shall be nuil and void and shall be deemed separable from the remaining covenants and agreements and shall not affect the validity of this Agreement. 4) Paragraph Headings - Paragraph headings in this Agreement are for convenience only and are not to be construed as a part of this Agreement or in any way limiting or amplifying the provisions hereof. 5) Other Agreements - Producer agrees that each agreement for the supply of recycled water hereafter entered into by Producer with any other wholesaler or End User shall contain provisions substantially similar to those herein set forth and shall not contain any provisions of a material nature more favorable to the other wholesaler or End User than the provisions herein applicable to Wholesaler. 6) Successors and Assigns - Subject to the provisions of the succeeding Paragraph hereof, this Agreement and all the terms, covenants, agreements, and conditions herein contained shall inure to the benefit of and be binding upon the successors and assigns of the Parties hereto. 7) Assignment - No assignment or transfer by Wholesaler of this Agreement or any part hereof, or of any rights hereunder or interest herein of Wholesaler, shall be valid unless approved by Producer, which approval shall not be unreasonably withheld. \KHM\436311.08 -15- 94-091406943001 8) Remedies - By reason of the specialized nature of the recycled water service to be rendered, and for the further reason that the extent of any damage caused to a party by any breach of this Agreement may be extremely difficult to determine, it is agreed by the Parties hereto that an action for damages is an inadequate remedy for any breach, and that specific performance, without precluding any other remedy available in equity or at law, will be necessary to furnish either Party hereto with an adequate remedy for the breach hereof. 9) Indemnification - Producer shall save Wholesaler, its officers, agents and employees, free and harmless from any and all cost liability, damages or . health-related claims arising out of any act or omission to act, including any negligent act, by Producer, its officers, agents or employees arising out of the Producer's performance of its obligations under this Agreement. Wholesaler shall save Producer, its officers, agents and employees, free and harmless from any and all cost liability, damages or health-related claims arising out of any act or omission to act, including any negligent act, by Wholesaler, its officers, agents or employees arising out of the Wholesaler's performance of its obligations under this Agreement. 10) Dispute Resolution - Any controversies between the Parties regarding the construction or application of this Agreement, and claims arising out of this Agreement or its breach, shall be submitted to mediation within 30 days of the written request of a party after the service of that request on the other Party. The Parties may agree on one mediator. If they cannot agree on one mediator, the Party demanding mediation shall request that the Superior Court of Santa Clara County appoint a mediator. The mediation meeting shall not exceed one day (eight hours),unless the Parties agree to extend said time. The costs of the mediator shall be borne by the Parties equally. Mediation under this section is a condition precedent to filing an action in any court. \KHM\436311.08 -16- 94-091406943001 11) Governing Law - This Agreement shall be governed, construed and enforced in accordance with the laws of the State of California IN WITNESS 'WHEREOF, Producer and Wholesaler have caused this Agreement to be executed by their respective duly authorized officers effective as of the day and year first herein above written. SCRWA Clerk SOUTH COUNT AUTHORIT ATTEST: ~Ldr~' ". APPROVED AS TO FORM: ~ SCRW A Attorney ATTEST: SANTA CLARA VALLEY WATER DISTRICT ("WHOLESALER") ~ By: . SC ~~x&w S Clerk APPROVED AS TO FORM: \KHM\436311.09 95-093006943001 -17- Exhibits: Exhibit A = Recycled Water Delivery Schedule Exhibit B = Point of Connection Detail Exhibit C = Stage 1 Facilities \KHM\436311.08 94-091406943001 -18- EXHIBIT A PRODUCER - WHOLESALER ANNUAL RECYCLED WATER DELIVERY SCHEDULE (In Acre-Feet) PROJECTED MINIMUM ANNUAL DELIVERIES 1999-2000 2000-2001 2001-2002 2002-2003 2003-2004 ANNUAL 390 590 890 1090 1380 ACRE-FEET '-. EXHIBIT B PRODUCER - WHOLESALER POINT OF CONNECTION DET AIL A) 1>f' '?O SA) <::)C/- o~ c~ ;s;,& 1> ~/)' )- POINT OF CONNECTION NORMALL Y CLOSED l -i o (j) c :;0 GJ [il ~ ~ -i )> Z ^ - NOT TO SCALE - NOTE: PRODUCER-WHOLESALER POINT OF CONNECTION LOCATED BELOW GRADE DOWNSTREAM OF FLOW METER AT TERTIARY PUMP STATION NO.1 AT WWTP, 1500 SOUTHSIDE DRIVE, GILROY. ..... REVISED: 4120/99 EXHIBIT C STAGE 1 FACILITIES The Stage 1 Facilities for the recycled water distribution system are quantified as follows: Retrofit of Existing 12- Inch Recycled Water Pipeline: Valves and fittings, including air relief valves, isolation valves, blowoff valves, surge relief valves, service turnouts, gate valves, main line butterfly valves, nozzle and valves, flow meters, butterfly valves (on emergency drain lines), and isolation valve tees, along approximately 42,240-ft. (about 8-miles) of 12-inch diameter pipe to be rehabilitated and/or replaced as needed. Recycled Water Booster Pump Station and Reservoir: The new booster pump station, to be located at Christmas Hill Park, will increase the recycled water pressure in the existing distribution system from 60-psi to approximately 120-psi. The new 1.1 million-gallon above-grade steel reservoir and associated pipeline will be located on the hillside of the Eagle Ridge Golf Course. The booster pump station and reservoir shall include all supporting infrastructure needed for operation of the completed Stage 1 Facilities. Distribution System Pipeline Extensions: The primary distribution system pipeline extensions include a pipeline to the Gilroy Golf Course and a pipeline to the Thomas Road Sports Park. Both sites are located within Gilroy. The pipeline extensions include valves, blow-off provisions and all other necessary appurtenances. Wholesaler shall also design and construct other piping and appurtenances associated with service connection piping for initial Stage 1 customers. Service connections shall consist of piping and fittings from the pipeline to the location of the customer recycled water meter including the upstream meter stop valve and end cap or plug for that customer site. Others, working with the Wholesaler, shall be responsible for customer recycled water meters, meter boxes and any modifications of on-site recycled water systems. Producer shall design and construct all supporting infrastructure located at the WWTP needed for operation of the completed Stage 1 Facilities. The quantities and sizes indicated above are subject to adjustment. Final quantities and sizes are expected upon completion of the ninety-percent (90%) design documents. '.