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AGREEMENT FOR THE SALE AND PURCHASE
OF WASTEWATER EFFLUENT
THIS AGREEMENT, made and entered into this day of 12th day
of June 1981, by and between the City of Xxxxxxxx a municipal corporation
organized and existing under and by virtue of the laws of the State of Arizona
("Tolleson") and Arizona Public Service Company, a corporation organized and
existing under and by virtue of the laws of the State of Arizona ("APS") and
Salt River Project Agricultural Improvement and Power District, an agricultural
improvement district organized and existing under and by virtue of the laws of
the State of Arizona ("SRP").
W I T N E S S E T H:
WHEREAS, Tolleson owns, operates and maintains a wastewater
treatment plant (hereinafter the "Plant") situated 0/0 xxxx xxxxx xx Xxxxx Xxxxx
00 and 1/4 mile west of 91st Avenue at which Tolleson treats raw sewage
collected from sources within and outside of the corporate boundaries of
Tolleson and produces treated wastewater effluent. suitable for discharge into
the Salt River in accordance with the laws of the United States and the State of
Arizona (hereinafter Effluent);
WHEREAS, the capacity of the Plant is currently sufficient
to process and discharge approximately 4 million gallons per day of treated
wastewater and an expansion of the Plant to increase the capacity to
approximately 8 million gallons per day (hereinafter "M.G.D.") is in progress;
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WHEREAS, pursuant to a commitment previously made, Tolleson
currently is obligated to sell Effluent up to, but not in excess of, 2.0 M.G.D.
for the production of sod on property situated adjacent to the Plant
(hereinafter "Committed Effluent");
WHEREAS, Tolleson desires to reserve for its use and
disposition as it may in its own discretion elect, 10% of the amount of Effluent
in excess 2.0 M.G.D. (hereinafter "Reserved Effluent");
WHEREAS, Tolleson desires to sell and APS and SRP desire to
purchase all available Surplus Effluent which for the purposes hereof shall be
(i) all of the Effluent produced through the operation of the Plant in excess of
the sum of the Committed Effluent and Reserved Effluent and (ii) any amounts of
Committed Effluent not actually sold pursuant to the commitment therefor, and of
Reserved Effluent. not actually used or otherwise disposed of by Tolleson, but
not to exceed 8.3 M.G.D.; and
WHEREAS, the sale and purchase of the Surplus Effluent will
result in its beneficial use and in the reduction in the demand for the limited
supplies of unused surface waters and groundwaters.
NOW THEREFORE, for and in consideration of the mutual
covenants, terms and conditions hereinafter stated,the parties agree as follows:
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Section 1. Sale and Purchase of Surplus Effluent.
1.1 Except as provided in other Sections of this Agreement,
Tolleson shall sell and deliver to APS and SRP, and APS and SRP shall purchase
and accept all of the Surplus Effluent produced through the operation of the
Plant during the term of this Agreement, including any extension of the
Agreement.
1.2 This Agreement contains no requirement that Tolleson
produce any certain amount of Effluent at the Plant but merely that it deliver
to APS and SRP whatever amount of Surplus Effluent is produced, except as
provided elsewhere in this Agreement.
(End of Section 1]
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Section 2. Price and Payment.
2.1 APS and SRP shall pay to Tolleson for all Surplus
Effluent sold and delivered hereunder a price determined as of July l each year
equal to the greater of (i) $35.00 per acre-foot, plus the adjustment component
determined in accordance with Section 2.4 hereof, (ii) 45% of the price per
acre-foot in effect from time to time for Central Arizona Project Municipal and
Industrial Water, 6r (iii) 190% of the price paid for Uncommitted Effluent under
Agreement No. 13904 between APS and SRP and the Cities of Phoenix, Glendale,
Scottsdale, Tempe and Mesa and the Town of Youngtown
2.2 APS and SRP shall pay Tolleson monthly an amount equal
to the price determined pursuant to section 2.1 hereof multiplied by the number
of acre-feet of surplus Effluent delivered and accepted during the prior month.
such monthly payments shall be due and payable 30 days after receipt of the
inv6ice therefor rendered by Tolleson.
2.3 In the event of a dispute concerning the quantity of
surplus Effluent delivered in any month, APS and SRP shall pay the invoiced
amount) but may do so under written protest. If any protested amount shall
subsequently be determined to have been excessive, the excessive amount thereof
shall be refunded to APS and SRP. Any dispute or protest shall be resolved in
the manner provided by Section 14.7 hereof.
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2.4 The adjustment component shall be applied to all Surplus
Effluent sold and delivered hereunder on or after July 1, 1981, pursuant to the
price described in Section 2.1(i), and shall be determined once each year as
hereinafter set forth.
2.4.1 The Base Year shall be 1980.
2.4.2 On July 1, 1992, the specified price of $35.00
per acre-foot shall be adjusted (increased or decreased), based on the final
index for the Base Year and the final index for the year 1981 by referring to
the Index of Implicit Price Deflators for Gross National Product, as published
in Table 7.1 of the National Income and Product Accounts Tables of the United
States Department of Commerce Publication entitled "Survey of Current Business"
(hereinafter "IPD") as applied in the following formula:
1981 IPD - 1980 IPD x $35.00
-------------------
1980 IPD
EXAMPLE:
Assume the IPD for the Base Year (1980) is 100 and the IPD
for 1981 is 110, then the adjustment for the year commencing
July 1, 1982, would be determined as follows:
110 - 100 x $35.00= $3.50
---------
100
2.4.3 Pursuant to Section 2.1(i), the price per
acre-foot thereafter shall be adjusted accordingly for each successive year
based on the percentage change in IPD between the final index for the preceding
year and the Base Year.
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EXAMPLE:
Assume the IPD for the Base Year (1980) is 100 and the IPD
for 1982 is 120, the adjustment for the year commencing July
1, 1983, would be determined as follows:
120 - 100 X $35.00 = $7.00
---------
100
2.4.4 In computing such adjusted price per acre-foot,
fractions of a cent will be dropped if less than one-half (.5) cent and will be
increased to the next higher whole cent if one-half (.5) cent or more.
2.4.5 In the event the "IPD" is not available for use
in determining the adjustment component in July of 1982 or any subsequent year,
the adjustment component shall be held in abeyance for Surplus Effluent
delivered in such year until such index is available, at which time Tolleson
shall determine the adjusted price pursuant to Section 2.1(i), and, if such
price is applicable for any year in question, shall submit, and APS and SRP
shall pay, an adjusted invoice applying the proper adjustment to all surplus
Effluent previously delivered in such year.
2.4.6 In the event the IPO shall be discontinued, an
appropriate index will be substituted therefor by mutual agreement of the
parties.
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Section 3. Quality of the Surplus Effluent
3.1 All Surplus Effluent sold and delivered hereunder shall
have received wastewater treatment, and shall meet the standards, required by
law and specified in Permit Xx. XX 000000 i5sued to Tolleson by the
Environmental Protection Agency (hereinafter "EPA"), including any amendments
thereof as may be made from time to time and/or in any other required permit or
authorization as may hereafter be issued by the Arizona Department of Health
services (hereinafter "ADHS"), or any other federal or state agency having
jurisdiction respecting the treatment and/or discharge of waste-water effluent,
except that chlorination of such surplus Effluent sold and delivered hereunder
shall be required and performed only upon the terms and conditions hereinafter
provided.
3.2 Tolleson shall operate, maintain, enlarge and improve
the Plant in such a manner that the quality requirements set forth in Section
3.1 are satisfied.
3.3 APS and SRP shall not be required to purchase or accept
surplus Effluent that does not meet the quality requirement set forth in Section
3.1 hereof.
3.4 To1leson on the written request of APS and SRP shall
chlorine the Surplus Effluent to be delivered to APS and SRP, provided that APS
and SRP shall reimburse Tolleson for its costs for chlorine used in such
chlorination.
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3.5 Should the applicable state and federal laws change to
require chlorination of Surplus Effluent delivered into the effluent pipeline
between the City of Phoenix 91st Avenue Sewage Treatment Plant and the Palo
Verde Nuclear Generating Station (hereinafter the "Palo Verde Effluent
Pipeline"), but not require chlorination of Effluent 4ia-posed of in the way
Tolleson disposed of the Effluent before entering into this Agreement, then
Tolleson shall chlorinate the Surplus Effluent and APS and SUP shall reimburse
Tolleson for its costs of chlorine used in chlorinating the Surplus Effluent.
(End of Section 3)
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Section 4. Use of the surplus Effluent.
The primary use of the surplus Effluent purchased and
accepted by APS and SRP is for condenser cooling required for generation of
electric power at the Palo Verde Nuclear Generating station (hereinafter the
"Palo Verde Station") or any other electric generating facility that APS and
SRP, or either of them, may in the future develop. Nonetheless, APS and SRP
shall, at all times and at their sale discretion, have the right to resell or
otherwise dispose of the Surplus Effluent sold and delivered hereunder provided
that such sales or other dispositions are made in compliance with all applicable
laws and are not in competition with sales of other Effluent by Tolleson.
(End of Section 4)
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Section 5. Delivery Point and Metering.
5.1 Surplus Effluent sold and purchased hereunder shall be
delivered by Tolleson and accepted by APS and SRP at the valve that controls the
flow of Surplus Effluent into the Palo Verde Effluent Pipeline (hereinafter the
"Delivery Point") to be installed in the interconnection between the two outfall
wastewater lines from the Plant to the Salt River (hereinafter the "Outfall
Lines") and the Palo Verde Effluent Pipeline.
5.2 The parties shall cooperate in the design, installation,
operation and maintenance of the interconnection facilities required to provide
for the reliable delivery and control of Surplus Effluent at the Delivery Point.
All costs associated with the design, installation, construction, operation and
maintenance of such facilities shall be borne by APS and SRP and the title to
such facilities shall be vested in APS and SRP jointly.
5.3 The quantity of Surplus Effluent delivered by Tolleson
and accepted by APS and .SRP at the Delivery Point shall be measured by metering
devices installed by APS and SRP as close to the Delivery Point as practicable.
Such metering devices shall be of a design and type acceptable to Tolleson and
APS and SRP. The costs of such devices and their installation, operation,
maintenance, replacements, repair, betterments and calibration shall be borne by
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APS and SRP, except as otherwise provided in Section 7.3 hereof, and the title
thereto shall be vested in APS and SRP. Provisions shall be made to permit flow
meter information to be continuously displayed in a panel or panels at the Pl4nt
utilizing facilities and equipment as Tolleson may, at its own expense provide,
title to which shall be vested in Tolleson.
5.4 In the event that the flow metering device shall fail or
be inoperative, Tolleson shall have the right to use other in-plant flow
metering equipment to determine the volume of Surplus Effluent delivered for
billing purposes.
(End of Section 5]
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Section 6. Permits and Authorizations.
6.1 Tolleson shall be solely responsible for securing and
maintaining in force and effect any and all permits and authorizations required
by law for the delivery of Surplus Effluent to APS and SRP at the Delivery Point
and for the discharge into the Salt River or other disposal of Effluent which is
not delivered to and accepted by APS and SRP.
6.2 APS and SRP shall be solely responsible for securing and
maintaining in force and effect any and all permits and authorizations required
by law for the transportation of the Surplus Effluent from the Delivery Point to
the Palo Verde Station or to any other points and for any uses of the Surplus
Effluent that are allowed by Section 4 of this Agreement. Such responsibility of
APS and SRP may be delegated to others, 'but as between the parties the
responsibility rests solely upon APS and SRP.
6.3 Each of the parties shall cooperate with the other party
in securing and maintaining in force and effect the permits and authorizations
required in accordance with Sections 6.1 and 6.2 hereof and shall render such
assistance to the other party as it or they may reasonably request. Each party
shall furnish to the other party a copy of each permit and authorization
obtained pursuant to Sections 6.1 and 6.2 hereof.
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6.4 Should Tolleson be required by law to treat the Surplus
Effluent in a manner that results in increased expenses to Tolleson because it
is delivering the Surplus Effluent to APS and SRP under this Agreement, which
expense it would not have incurred if the Surplus Effluent was disposed by
Tolleson. into the Salt River, then APS~ and SRP shall have the right to require
Tolleson to so treat the Surplus Effluent and shall reimburse Tolleson for all
expenses (including without limitation any costs of plant additions or
improvements) incurred by Tolleson in providing such treatment.
[End of Section 6]
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Section 7. Implementation of the Agreement.
7.1 Within 30 days after the effective date of thi5
Agreement, Tolleson shall designate a representative and APS and SRP shall
collectively designate a representative for the purposes of (i) implementing
this Agreement in accordance with its terms, (ii) coordinating the engineering,
design and installation of the interconnecting facilities, including without
limitation the metering facilities, (iii) developing mutually satisfactory
procedures for the installation, operation and maintenance of the
interconnecting facilities, and (iv) developing other practices appropriate for
the implementation of this Agreement. Either Tolleson or APS and SRP may from
time to time designate a substitute or successor authorized representative by
giving written notice of such designation to the other party.
7.2 Within 120 days after the effective date of the
Agreement, the authorized representatives shall establish in writing such
operating procedures and practices as they mutually shall deem to be appropriate
for the delivery and acceptance of Surplus Effluent hereunder, including without
limitation such matters as notification requirements for routine operations and
emergencies, access to control and measurement facilities, maintenance practices
and schedules, and billing practices Such operating procedures and practices may
be amended from time to time in writing as the authorized representatives shall
mutually agree.
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7.3 The metering devices used to measure the quantity of
Surplus Effluent delivered and accepted hereunder shall be calibrated in a
manner acceptable to the authorized representatives prior to the date when such
devices are placed in service and thereafter not less frequently than once every
six months. The costs of such scheduled calibrations shall be borne by APS and
SRP. The authorized representative for Tolleson may request in writing such
additional calibrations as he in his sole discretion deem. appropriate; provided
that the cost incurred by APS and SRP for each such additional calibration shall
be reimbursed by Tolleson unless any such additional calibration reveals that
the inaccuracy of the metering devices is greater than + 2% in which case the
cost of such additional calibration shall be borne by APS and SRP. Copies of all
records showing calibration of meters and measurements of Surplus Effluent shall
be delivered to Tolleson with cover letters acknowledging the records to be true
copies.
[End of Section 7)
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Section 8. Commencement of Delivery of Effluent; Effluent Availability Charge;
and Charges for Unaccepted Effluent.
The obligation to sell and deliver Surplus Effluent shall
commence upon the completion of the interconnection facilities between the
Outfall Lines and the Palo Verde Effluent Pipeline (hereinafter the "Completion
Date"). During the period from the Completion Date through April 30, 1983,
Tolleson shall sell and deliver, and APS and SUP shall purchase and accept,
Surplus Effluent in such quantities as may be available and APS and SRP may
require for testing and startup of the Water Reclamation Facility (hereinafter
"WRF"), for filling the reservoir at Palo Verde Station and testing, startup and
operation of Xxxx 0 xx Xxxx Xxxxx Xxxxxxx. APS and SRP shall use Tolleson
Surplus Effluent for such purposes in precedence to any other effluent from
other sources except to the extent that is desirable to test the WRF with such
other effluent. During the period from July .1, l981, through April 30, 1983,
APS and SRP shall pay to Tolleson an availability charge equal to $2.00 per
acre-foot for the quantity of Surplus Effluent available for sale and delivery,
but not purchased and accepted by APS and SRP during such period. After April
30, 1983, Tolleson shall be obligated to sell and deliver, and APS and SRP shall
be obligated to purchase and accept, all Surplus Effluent available from time to
time. In the event APS and SRP shall, after April 30, 1983, fail or refuse to
accept any available surplus Effluent for reasons other than as provided in
Sections 3.3, 9.1 and 11.1, then APS and SRP shall be obligated to pay (or such
unaccepted Surplus Effluent at the same price and on the same terms and
conditions as would have applied if it had been accepted.
[End of Section 8]
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Section 9. Force Majeure.
9.1 Neither Tolleson nor APS and SRP shall be considered to be
in default in the performance of any of the obligations hereunder if failure of
performance shall be due to an uncontrollable force. The term "uncontrollable
force" shall mean any cause beyond the control of the party affected, including,
but not limited to, failure of facilities, flood, earthquake, tornado, storm,
fire, lightning, epidemic, war, riot, civil disturbance or disobedience, labor
dispute, and action or nonaction by or failure to obtain the necessary
authorizations or approvals from any governmental agency or authority or the
electorate, labor or material shortage, sabotage and restraint by Court order or
public authority, which by exercise of due diligence and foresight such party
could not reasonably have been expected to avoid and which by exercise of due
diligence it shall be unable to overcome. Nothing contained herein shall be
construed so as to require either party to settle any strike or labor dispute in
which it may be involved. Either party rendered unable to fulfill any obligation
by reason of any uncontrollable force shall exercise due diligence to remove
such inability with all reasonable dispatch.
9.2 Whenever uncontrollable force as defined in Section 9.1
prevents APS and SRP from being able to accept or use the Surplus Effluent, then
Tolleson may enter into temporary contracts with any other parties for sale of
the Surplus Effluent. It Tolleson has entered into such temporary contract,
Tolleson shall be allowed up to 30 days to begin delivery of the Surplus
Effluent to APS and SUP after receiving written notice from APS and SRP that the
disability has been removed.
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9.3 Notwithstanding the provisions of Sections 9.1 and 9.2,
if, after the exercise of due diligence, the party rendered unable to fulfill an
obligation remains unable to remove such inability for one full year, the other
party may elect to terminate the Agreement anytime thereafter by tendering 90
days written notice of its intention to terminate.
(End of Section 9
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Section 10. Interruption of Delivery of Surplus Effluent.
Tolleson shall have the right to refuse to deliver Surplus Effluent
or any portion of it under the terms of Agreement when the following occurs:
(a) There exists in Tolleson a critical need for water to be used for
domestic purposes;
(b) All other reasonable sources of water have been exhausted;
(c) Reasonable steps have been taken to conserve the water supply in
Tblleson; and
(d) Reasonable notice of the critical need has been given to APS and
SRP.
When the critical need expires, or when other reasonable sources of water become
available, Tolleson can no longer refuse to deliver Surplus Effluent under the
terms of this Agreement. Tolleson shall use its best efforts to resume delivery
of Surplus Effluent hereunder at the earliest practical time in the event such
deliveries are interrupted in accordance with this Section 10.
[End of Section 10]
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Section 11. Affect of Outage or Malfunction on Acceptance of Effluent.
11.1 In the event that a nonscheduled outage ("nonscheduled"
outage meaning an outage occurring due to reasons outside the control of APS and
SRP), or malfunction of any component or system of the Palo Verde Effluent
Pipeline or the WRF at the Palo Verde Station, restricts the capability of
either of such facilities to transport or treat wastewater effluent from all
sources, then APS and SRP may refuse to accept delivery of the Surplus Effluent
and shall not be required to pay therefor It us understood, however, that the
Surplus Effluent from Xxxxxxxx'x Plant shall be the last source of effluent that
APS and SR? cut back on during such outage and that APS and SRP shall not refuse
to accept and pay for Xxxxxxxx'x Surplus Effluent to the extent that they are
accepting and paying for effluent from any other source. Further, a nonscheduled
outage which cuts off or cuts back on the amount of Surplus Effluent accepted
and paid for by APS and SRP shall be treated as an "uncontrollable force" as
defined in Section g of this Agreement and shall be governed by the provisions
of Section 9.
11.2 In the event that an outage as described in Section 11.1
is a scheduled outage ("scheduled" outage meaning an outage that is planned and
controlled by APS and SRP), APS and SRP shall continue to pay for the Surplus
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Effluent that would have been delivered during any scheduled outage lasting up
to one year in length. Should the scheduled outage continue for more than one
year, from that point in time, APS and SRP shall pay one-half the price that
they otherwise would have paid for any Surplus Effluent they do not accept. At
any time that a scheduled outage continues for more than two years, Tolleson may
in its sole discretion elect to terminate the Agreement by giving 90 days
written notice to APS and SRP.
11.3 Except in emergencies, APS and SRP shall give 90 days
written notice in advance of any discontinuation of acceptance of Surplus
Effluent under the provision of this Section.
(End of Section 11]
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Section 12. Liability and Insurance.
12.1 Except for the negligence or intentional acts of APS and
SRP, their officers, directors, employees and agents, Tolleson shall be liable
insofar as APS and Salt are concerned, for any physical damage to property and
death of, and personal injury to, anyone arising out of the ownership, use,
occupancy, operation, maintenance, repair, replacement and reconstruction of the
Plant and the Outfall Lines, and Tolleson hereby indemnifies and holds APS and
SRP harmless from any cost, expense, claim or loss from such damage or injury.
12.2 Except for the negligence or intentional act of Tolleson,
its officers, managers, employees or agents, APS and SRP shall be liable insofar
as Tolleson is concerned for any physical damage to property and death of, and
personal injury to, anyone arising out of the construction, ownership, use,
occupancy, operation, maintenance, repair, replacement and reconstruction of the
delivery facilities at the Delivery Point, the Palo Verde Effluent Pipeline, the
facilities at Palo Verde. Station, or the transportation and use, resale or
disposal of Surplus Effluent delivered and accepted hereunder, and APS and SRP
hereby indemnify and hold Tolleson harmless from any cost, expense, claim or
loss from such damage or injury.
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12.3 Tolleson shall procure and maintain insurance against
physical damage to property and death of, and personal injury to, persons of the
kind and with coverages normally carried by entities operating properties
similar to the Plant and the Outfall Lines. Upon request, Tolleson shall furnish
to APS and SRP certificates of insurance demonstrating compliance with this
Section 12.3.
12.4 APS and SRP shall procure and maintain insurance against
physical damage to property and death of, and personal injury to, persons of the
kind and with coverages normally carried by entities operating properties
similar to the Palo Verde Effluent Pipeline and the Palo Verde Station. Upon
request, APS and SRP shall furnish to Tolleson certificates of insurance
demonstrating compliance with this Section 12.4.
(End of Section 12)
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Section 13. Inspections and Access to Records
13.1 Each of the parties shall have the right, during
reasonable hour5, of access to and inspection of the facilities and operations
of the other party which are associated with the treatment, delivery,
measurement, transportation and use of Surplus Effluent sold and purchased
hereunder.
13.2 Each of the parties shall have the right, during
reasonable hours, of access to the records of the other party which are relevant
for proving compliance or noncompliance of each of the parties with any of the
terms of the Agreement.
(End of Section 13)
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Section 14. General.
14.1 Effective Date and Term. This Agreement shall be
effective from and after the date of its execution by the parties. The Initial
Term of this Agreement shall be the period commencing on the date of its
execution by the parties and. expiring December 31, 2001. The Agreement shall
continue in effect and shall be binding upon the parties for four successive
five-year Extended Terms unless Tolleson or APS and SRP shall have given written
notice of termination not less than one year prior to the expiration of the
Initial Term or any or the three succeeding Extended Terms.
14.2 Assignment. Neither Tolleson nor APS and SRP shall
transfer or assign any of their respective rights, titles and interests in and
to this Agreement without the prior written consent of the other parties, except
that (i) APS and SRP shall each have the right to transfer and assign all or any
portion of its right, title and interest in this Agreement to the other or to
any utility participating in the Palo Verde Station or any other electric
generating station which utilizes the Surplus Effluent sold hereunder (ii) APS
and SRP and any of their respective successors or assigns shall each have the
right to transfer its right, title and interest in this Agreement to any
mortgagee, trustee or secured party under present or future deeds of trust,
mortgages, indentures or security agreements. A transfer or assignment by any
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party shall not release that party from its obligations as the primary obligor
under the Agreement without the written consent of the other parties. In the
event of any transfer or assignment of this Agreement by either Tolleson or APS
and SRP, the terms, covenants and conditions of this Agreement shall be binding
upon and inure to the benefit and shall apply to the respective transferees,
successors and assigns of Tolleson and APS and SRP. Notwithstanding any other
provision of this Agreement, APS and SRP shall have the right, without the
consent of Tolleson, to resell and dispose of all or any portion of the Surplus
Effluent delivered and accepted hereunder in such manner, upon such terms and
conditions and for such reuse as APS and SRP shall in their sole discretion deem
appropriate within the limitations of Section 4 of this Agreement.
14.3 Compliance with Laws. APS and SRP shall use the Surplus
Effluent delivered hereunder in accordance with the applicable laws of the
United States of America, the applicable laws of the State of Arizona and the
rules and regulations of the State Health Department and of the Manicopa County
Health Department; provided, however, that in the event any such laws or
regulations shall be amended in the future so as to make it impossible to use
the surplus Effluent for the purposes specified in this Agreement, APS and SRP
shall, at their option, have the right to cancel and terminate this Agreement
upon giving 90 days notice in writing to Tolleson. In the event Tolleson is
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prohibited by any state or federal laws or regulations hereafter enacted or
adopted from selling effluent for the uses contemplated herein, Tolleson shall
have the right to cancel and terminate this Agreement upon giving 90 days notice
in writing to APS and SRP. Until the notice period runs and the termination
becomes effective, APS and SRP shall continue to pay for the Surplus Effluent
14.4 Notices. All notices, demands, consents or other writings
given or made pursuant to this Agreement shall be in writings and, unless
otherwise specified herein, shall be deemed to have been duly given when made
and deposited in the United States mail by registered or certified mail with
postage prepaid and addressed as follows:
To Tolleson: City Manager
0000 Xxxx Xxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
To APS: Arizona Public Service Company
x/x Xxxxxxxxx
X.0. Xxx 00000
Xxxxxxx, Xxxxxxx 85036
To SRP: Salt River Project Agricultural
Improvement and rower District
c/c Secretary
P. 0. Xxx 0000
Xxxxxxx, Xxxxxxx 00000
The address to which any notice, demand, consent or other writing shall be given
to any party may be changed from time to time by written notice of such party to
the other parties as above provided.
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14.5 Relative Responsibilities of APS and SRP.
14.5.1 APS is authorized to act for and on behalf of SRP
in all matters affecting the implementation and performance of this Agreement
for the use of the Surplus Effluent at the Palo Verde Station, and all actions
and representations taken or made by APS in the implementation and performance
of this Agreement shall be binding upon SRP.
14.5.2 In the event all or a part of the Surplus
Effluent is used other than at the Palo Verde Station, APS and SRP shall be
jointly responsible for the implementation and performance of this Agreement.
14.5.3 Under all circumstances, however, APS and SRP
shall be jointly and severally liable to perform the obligations to Tolleson
that are imposed by this Agreement.
14.6 Waivers. The waiver by either Tolleson or APS and SRP of
any breach of any term, covenant or condition of this Agreement shall not be
deemed a waiver of such term, covenant or condition or any subsequent breach
thereof of any other term, covenant or condition in this Agreement.
14.7 Resolution of conflicts and Disputes. Any conflict or
disputes in the implementation of this Agreement, procedures for implementation
having been provided in Section 7, shall be resolved by arbitration in accord
with the rules of the American Arbitration Association. Any conflicts or
disputes in adjusting the purchase price of the Surplus Effluent as provided in
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Section 2.1 and any conflict or disputes in the quantity of Surplus Effluent
delivered as discussed in Section 2.3 shall be resolved by arbitration in accord
with the rules of the American Arbitration Association. No other conflicts or
disputes arising out of the Agreement shall be subject to mandatory arbitration.
In all cases, the Agreement shall be interpreted according to the laws of the
State of Arizona.
14.8 Sales and Use Taxes. In the event the State of Arizona,
County of Maricopa or the federal government should require that Tolleson pay a
tax resulting from the sale of Surplus Effluent to APS and SRP, then the price
for the Surplus Effluent shall be increased by the amount of such tax In the
event Tolleson shall xxxx a tax on the sale or use of the surplus Effluent, then
the amounts of any such tax paid by APS and SRP shall be deducted from the
amounts payable under Section 2.2 hereof.
14.9 Section Headings. Section headings in this Agreement are
for convenience only and do not purport to describe accurately or completely the
contents of any section. Such headings are not to be construed as a part of this
Agreement or in any way defining, limiting or amplifying the provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and attested by their respective duly authorized officers as of the
date first above written.
-00-
XXXXXX XXXX XX XXXXXXXX
By
------------------------------- ---------------------------
City Clerk Mayor
Reviewed By
---------------------------
City Manager
Approved as to Form
---------------------------
City Attorney
ATTEST:
ARIZONA PUBLIC SERVICE COMPANY
--------------------------------- ---------------------------
(Title) XX X. XXXXXXXX, SECRETARY
APPROVED AS TO FORM By (Title) President
BY
FOR XXXXX & XXXXXX SALT RIVER PROJECT AGRICULTURAL
DATE 6/9/81 IMPROVEMENT AND POWER DISTRICT
ATTEST & COUNTERSIGN
--------------------------------- ---------------------------
By (Title) President
(Title) Secretary
APPROVED AS TO FORM
Salt River Project Law Dept.
By
Date 7/7/81
-31-
5/29/81
STATE OF ARIZONA )
) ss:
County of Maricopa )
On this the 13th day of July1981 before me, the, undersigned
Notary Public, personally appeared Xxxxx X. Xxxxxxx and Xxxxxx Xxxxxx who
acknowledged themselves to be the Mayor and City Clerk of the CITY OF XXXXXXXX,
ARIZONA, a municipal corporation. and that they as such officers, being
authorized so to do, executed the foregoing instrument for the purposes therein
contained by signing the name of CITY OF XXXXXXXX, ARIZONA, by themselves as
such Mayor and City Clerk.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
--------------------------
Notary Pub1ic
My Commission Expires:
My Commission Expires Jan.29, 1984
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this the 12th day of July l981 before me). the undersigned Notary
Public personally appeared __________ and __________ who acknowledged themselves
to be the Secretary and President of ARIZONA PUBLIC SERVICE COMPANY, an Arizona
corporation, and that they as such officers, being authorized so to do, executed
the foregoing instrument for the purposes therein contained the name of, signing
the name of the company by themselves as such Secretary and President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
--------------------------
Notary Pub1ic
My Commission Expires:
My Commission Expires Nov. 9, 1982
-32-
5/29/81
STATE OF ARIZONA )
)ss.
County of Maricopa )
On this the 9th day of July, 1981 before me, the undersigned Notary
Public, personally appeared Xxxx X. Xxxx and Xxxx X. Xxxx, who acknowledged
themselves to be the who acknowledged themselves to be the President and
Secretary, of the SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER
DISTRICT, an agricultural improvement district organized and existing under the
laws of the State. of Arizona, and that they as such officers, being authorized
so to do, executed the foregoing instrument for the purposes therein contained
by signing the name of the company by themselves as such President and
Secretary.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
--------------------------
Notary Pub1ic
My Commission Expires:
My Commission Expires May 3rd, 1983
[Notary Seal]
-33-
ARIZONA NUCLEAR POWER PROJECT
Xxxx Xxxxxx Xxx 00 00
Xxxxxxx, Xxxxxxx 00000
El Paso Electric Company
X.X. Xxx 000 July 16, 1981
000 X. Xxxxxxx
Xx Xxxx, Xxxxx 00000
Attention: R. E. York, Vice President
Southern California Edison Company
P. O. Xxx 000
0000 xxxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx, Vice President
Public Service Company of New Mexico
P. X. Xxx 0000
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: C. Xxxxx Xxxxxxx, Vice President
Gentlemen:
The City of Xxxxxxxx, Arizona Public Service Company (APS) and
Salt River Project Agricultural Improvement and Power District (SRP) have duly
executed the attached Agreement for the Sale and purchase of wastewater
Effluent, dated as of July 7, 1921, providing for the sale and purchase of
wastewater effluent for use at Palo Verde Nuclear Generating Station (PVNGS) or
other electric generating stations as APS and SRP, or either of them, may
develop in the future. APS and SRP have executed such effluent agreement
pursuant to the attached resolution unanimously approved and adopted by the
Arizona Nuclear Power Project (ANPP) Administrative Committee and hereby declare
and designate such agreement to be a Project Agreement, as defined in the ANPP
participation Agreement, in which each participant shall own an undivided
interest as tenant in common in proportion to its Generation Entitlement Share
in PVNGS pursuant to section 4.1 of such Participation Agreement.
APS and SRP further commit, subject to the designation by
the other Participants of such effluent agreement as a Project Agreement, that
all effluent available for purchase under such effluent agreement shall be
dedicated to the operation of PVNGS and shall not be used at any other
generating station without the consent of all Participants.
ARIZONA PUBLIC SERVICE COMPANY SALT RIVER PROJECT AGRICULTURAL
IMPROVEMENT AND POWER DISTRICT
By By
---------------------------- ------------------------------
President
Attachment
By
------------------------------
Secretary
The attached Agreement for the Sale and Purchase of Wastewater
Effluent is hereby designated a Project Agreement.
EL PASO ELECTRIC COMPANY
By
-----------------------------
SOUTHERN CALIFORNIA EDISON COMPANY
By
-----------------------------
PUBLIC SERVICE COMPANY OF NEW MEXICO
By
-----------------------------
12/4/81
AMENDMENT #1 TO THE AGREEMENT FOR THE
SALE AND PURCHASE OF WASTEWATER EFFLUENT
THIS AMENDMENT #1 TO THE AGREEMENT FOR THE SALE AND PURCHASE
OF WASTEWATER EFFLUENT ("Amendment #1"), dated June 12, 1981. made and entered
into as of the 12th day of November, 1981, by and between the City of Xxxxxxxx,
a municipal corporation organized and existing under and by virtue of the laws
of the State of Ariz6na ("Tolleson") and Arizona Public Service Company, a
corporation organized and existing under and by virtue of the laws of the State
of Arizona ("APS") and Salt River Project Agricultural Improvement and Power
District, an Agricultural improvement district organized and existing under and
by virtue of the laws of the State of Arizona ("SRP").
W I T N E S S E T H
WHEREAS, since June 12, 198A, the date of the Agreement for
the Sale and Purchase of Wastewater Effluent (the "Agreement"), Tolleson has
proceeded with its expansion of its wastewater treatment plant (the "Plant") as
described in the Agreement and the installation of a new outfall line from the
Plant to the Salt River is currently in progress and scheduled for completion
prior to the end of 1981;
WHEREAS, the engineering and design of the facilities
required to establish a temporary and permanent interconnection between the
Tolleson Outfall Lines (as defined in Section 5.1 of the Agreement) and the Palo
Verde Effluent Pipeline (as defined in Section 3.5 of the Agreement) have been
completed and show. that the provisions of Section 5.2 of the Agreement are
inappropriate; and
WHEREAS, the parties desire to amend said Section 5.2 to
provide that (j) those interconnection facilities which are integral parts of
the Tolleson Outfall Lines, namely the Tolleson Junction Box and Associated
Facilities, as hereinafter defined, shall be owned, operated and maintained by
Tolleson and (ii) those facilities that are integral parts of the Palo Verde
Effluent Pipeline, namely the ANPP Pipeline and Associated Facilities, as
hereinafter defined, shall be owned, operated and maintained by APS and SRP,
their successors and assigns, and to further establish the responsibilities Of
the parties for the construction and installation of such facilities and such
temporary facilities as may be required, the furnishing of materials there-for
and the payment of the costs thereof:
NOW THEREFORE, in consideration of the premises and the
mutual covenants, terms and conditions hereinafter provided, the parties agree
to amend Section 5.2 of the Agreement to read in its entirety as follows:
"5.2.1 Tolleson shall own, operate and maintain the Tolleson
Junction Box and Associated Facilities which shall include the following items:
12/4/81
x. Xxxxxxxx Junction Box and the xxxx and three manual sluice
gates situated therein;
b. Anchor block adjacent to the Tolleson Junction Box;
c. 18-feet of the new 48-inch pipe connected to the inlet
side of the Tolleson Junction Box;
d. Approximately 15 feet of the new 42-inch pipe connected to
the outlet side of the Tolleson Junction Box;
e. Manhole and stab pipe required to connect the new 42-inch
pipes connected to the inlet and outlet sides of the
manhole;
x. Xxxxxxxx Junction Structure Box;
g. All other: portions of the new Tolleson Outfall Line;
h. The portion of the existing Tolleson Outfall Line
(30-inch) within the Tolleson Junction flax;
i. All other: portions of the existing Tolleson Outfall Line;
and
j. Temporary facilities installed in the Tolleson Junction
Box to permit installation of the manual sluice gate on
the existing Tolleson Outfall Line;
all as depicted on drawing nos. AO-W-ZlC-150 Rev. 2 and AO-W-ZlC-l5l Rev. 2,
attached hereto as Appendix A, which facilities are integral parts of the
Tolleson Outfall Lines.
-3-
12/4/81
"5.2.2 APS and SRP their successors and assigns shall own,
operate and maintain the ANPP Pipeline Junction Box and Associated Facilities
which shall include the following items:
a. ANPP Pipeline Junction Box and all facilities and
equipment situated therein;
b. 30-inch pipe between the ANPP Pipeline Junction Box and
The Tolleson Junction Box;
c. Motorized sluice gate situated in the Tolleson Junction
Box (also referred to as a "valve" in Section 5.1 hereof);
d. Flow metering equipment, including without limitation such
devices as may be necessary for transmission of flow meter
data to the control panels in the Plant; and
e. Temporary bypass facilities, it any, installed to bypass
the Tolleson Junction Box, including without limitation
the pipe and fittings required to connect items e and a
swap pump located in item f (all referred to in Section
5.2.1);
all as depicted in Appendix A, which facilities parts of the Palo Verde Effluent
Pipeline.
-4-
12/4/81
"5.2.3 Tolleson shall be responsible for the construction and
installation of items c, f. g and i listed in Section 5.2.1. Tolleson shall
engage Xxx Construction Company to construct and install items e, f and g and
shall procure items c and d in accordance with plans and specifications prepared
by its engineering consultants, Xxxxx and Xxxxxxxx.
"5.2.4 APS and SRP shall be responsible for the construction
and installation of all items listed in Section 5.2.2. With respect to items
listed in Section 5.2.1, APS shall be responsible for the construction and
installation of items a and j, the removal and replacement of item b, the
installation of items C and d using pipes and fittings furnished by Tolleson and
the removal of item h, all in accordance with the plans and specifications
prepared by Xxxxxxx Power Corporation.
"5.2.5 APS and SRP shall not be required to procure,
construct or install item a listed in Section 5.2.2 unless and until 30 days
after receipt of written notice xxxx Xxxxxxxx that (i) such facilities are
required because flows from the Plant will exceed the capacity of the existing
Tolleson Outfall Line and (ii) Tolleson shall have completed construction of all
of items e, if and g listed in Section 5.2.1 and APS and SRP shall not have
completed all work required pursuant to Section 5.2.4 for the operation of the
new Tolleson Outfall Line.
"5.2.6 Tolleson shall pay the costs of procurement,
construction installation of all items listed in Section 5.2.3; provided that
-5-
APS and SRP shall reimburse Tollson within 30 days after receipt at Xxxxxxxx'x
invoice or invoices for such costs incurred by Tolleson in connection with item
e and for all engineering fees associated with the design, plan review and
change order preparation associated with the items listed in Section 5.2.1
except items g and i.
"5.2.7 APS and SRP shall pay all costs associated with all
items listed in Section 5.2.4; provided that Tolleson shall pay the costs of
procurement and delivery to the site of the pipes and fittings for items C and C
listed in Section 5.2.1.
"5.2.8 The parties shall cooperate in the construction,
installation,. operation and maintenance of the facilities, equipment and work
described in or required to be performed pursuant to this section 5 in order to
provide for the reliable delivery and control of Surplus Effluent at the
Delivery Point."
All other provisions of the Agreement shall remain in full
force and effect. IN WITNESS WHEREOF, the parties have caused this Amendment #1
to be executed and attested by their respective duly authorized officers as of
the date first above written.
ATTEST:
By
----------------------------- -------------------------------
City Clerk Mayor
-6-
Reviewed By
-------------------------------
City Manager
Approved as to Form
-------------------------------
City Attorney
ATTEST ARIZONA PUBLIC SERVICE COMPANY
---------------------------------- ------------------------------
(Title) By Title Vice President
SALT RIVER PROJECT AGRICULTURAL
ATTEST & COUNTERSIGN: IMPROVEMENT AND POWER DISTRICT
---------------------------------- ------------------------------
(Title) Secretary By (Title) Vice President
STATE OF ARIZONA )
)ss:
County of Maricopa )
12/4/81
On this the 14th day of December, 1981, before me, the
undersigned Notary Public, persona1ly appeared Xxxxx X. Xxxxxxx and Xxxxxx
Xxxxxx, who acknowledged themselves to me the Mayor and City Clerk of the CITY
OF XXXXXXXX, ARIZONA, a municipal corporation, and that they as such officers,
being authorized so to do, executed the foregoing instrument for the purposes
therein contained by signing the name of CITY OF XXXXXXXX, ARIZONA, by
themselves as such Mayor and City Clerk
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
--------------------------
Notary Public
My Commission Expires:
March 27, 1984
STATE OF ARIZONA )
) ss.
Countyof Maricopa )
On this the 5th day of January, 1982 before me, the
undersigned Notary Public, personally appeared _________and _______, who
acknowledged themselves to be the vice President and ________ of ARIZONA PUBLIC
SERVICE COMPANY, an Arizona corporation, and that they as such officers, being &
authorized so to do, executed the foregoing instrument for: the , purposes
therein contained by signing, the name of the company by themselves as such Vice
President and ----------.
IN WITNESS WEREOF, I hereunto set my hand and official seal.
--------------------------
Notary Public
My Commission Expires:
April 4, 0000
-0-
00/0/0x
XXXXX XX XXXXXXX )
)ss:
County of Maricopa )
On this the 23rd day of December, 1981, before me, the
undersigned Notary Public, personally appeared Xxxx X. Xxxxxx and Xxxx X Xxxx,
who acknowledged themselves to be the Vice President and Secretary of the SALT
RIVER PROJECT AGRICULTURAL IMPORVEMENT AND POWER DISTRICT, an agricultural
improvement district organized and existing under the laws of the State of
Arizona, and that they as such officers, being authorized so to do, executed the
foregoing instrument for the purposes therein contained by signing the name of
the company by themselves as such Vice President and Secretary.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
--------------------------
Notary Public
My Commission Expires:
March 15, 1983
-9-
