HomeMy Public PortalAbout2013_10_22_R126 Execution of a Reclaimed Water Agreement with Green Energy Partners The Town of
Leesburg,
Virginia
PRESENTED October 22, 2013
RESOLUTION NO. 2013-126 ADOPTED October 22, 2013
A RESOLUTION: AUTHORIZING THE EXECUTION OF A RECLAIMED WATER
AGREEMENT BETWEEN THE TOWN OF LEESBURG AND GREEN
ENERGY PARTNERS
WHEREAS, the Town of Leesburg (the TOWN) owns and operates a wastewater treatment
plant in Loudoun County on a 20 acre site presently owned by the Town of Leesburg; and
WHEREAS, the TOWN in the normal operations of the treatment plant creates effluent that
conforms to the water quality standards as propounded by the DEPARTMENT OF
ENVIROMENTAL QUALITY (DEQ)prior to its discharge in to the Potomac River; and
WHEREAS, GREEN ENERGY PARTNERS (GEP) and their partners have requested from
the TOWN an opportunity to purchase the effluent for the purpose of using said effluent for the
operations of its green energy plant; and
WHEREAS, the TOWN and GEP entered into an Memorandum of Understanding (MOU),
approved by Council, dated February 23, 2011 which provided the framework with respect to
negotiations for the sale and purchase of the effluent, the infrastructure that would be required for
the sale and purchase of same, and for the benefit of the public health, safety, welfare, environment
and the utility enterprise fund and its customers; and
WHEREAS, the parties over the past two and a half years have come to an agreement that
provides for the sale and purchase of the effluent, the construction of the infrastructure (also known
as the purple line and it facilities), and all terms and conditions as set forth in the attached
agreement; and
WHEREAS, there will be no negative impact on operation of the Town's water or
wastewater treatment plants; and
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A RESOLUTION: AUTHORIZING THE EXECUTION OF A RECLAIMED WATER
AGREEMENT BETWEEN THE TOWN OF LEESBURG AND GREEN
ENERGY PARTNERS
WHEREAS, the Town may negotiate such additional terms, conditions and additional
consideration with Loudoun Water in exchange for acknowledgment that the TOWN is the provider
of conforming reclaimed water to GEP.
THEREFORE, RESOLVED, by the Council of the Town of Leesburg, Virginia that the
agreement is approved in all its particulars and the appropriate members of staff and Council are
hereby authorized to execute the attached agreement.
PASSED this 22nd day of October, 2013.
- C. mstattd, Mayor
Town of Leesburg
AT.
tc, •
Clerk of Council,
P:\Resolutions\2013\1022 GEP Reclaimed Water Agreement.doc
EXECUTION VERSION
October 22, 2013
AGREEMENT FOR THE DELIVERY AND USE OF RECLAIMED WATER
THIS AGREEMENT FOR THE DELIVERY AND USE OF RECLAIMED WATER
(the "Agreement") is entered into this ?3 day of ( C �]e,1_,, 2013 (the "Effective Date"),
by and between GREEN ENERGY PARTNERS/STONEWALL LLC, a Virginia limited
liability company ("Generator") and the TOWN OF LEESBURG, a Virginia municipal
corporation (the "Town").
RECITALS:
WHEREAS, the Town owns and operates the WPCF, and the WPCF provides
wastewater treatment services to residents of the Town and nearby landowners and currently has
the design capacity to provide wastewater treatment for up to 7.5 million gallons per day and
discharges treated effluent into the Potomac River; and
WHEREAS,the treated effluent meets or exceeds the Water Quality Standards; and
WHEREAS, Generator was the successful applicant for the Zoning Approvals wherein
Generator was given the right to construct and develop the Power Plant on the Property; and
WHEREAS, the Power Plant requires water that meets the Power Plant Water Quality
Standards for its operation and use, and Generator seeks to purchase Reclaimed Water from the
Town;and
WHEREAS, Generator, at times, may require more Reclaimed Water than the WPCF can,
as of the date of this Agreement, commit to provide, and Generator requires the flexibility to
obtain such additional water supplies from entities other than the Town; and
WHEREAS, the WPCF has limitations on the maximum volume of effluent it may
discharge into the Potomac River pursuant to a permit granted by the DEQ and the EPA, and is
currently in compliance with that permit; and
WHEREAS, the Town is agreeable to selling Reclaimed Water to Generator, and such
additional other water as Generator, in its discretion, may elect to purchase, in order to offset the
operational costs of operating its WPCF;and
WHEREAS, the sale of Reclaimed Water and Waste Water by the Town to the Generator
serves a public purpose and benefits the Town's utility system in providing funds for such offset of
operational costs of the WPCF;and
WHEREAS, the Town and Generator desire to set forth in this Agreement the terms and
conditions by which the Town will sell and Generator will purchase Reclaimed Water.
WITNES SETH:
Page 1 of 31
NOW, THEREFORE, the Recitals set forth above being incorporated herein by
reference, in consideration of the foregoing and the mutual undertakings and covenants
contained herein, the Town and Generator, each pursuant to due and proper authority, do hereby
agree as follows:
1 DEFINITIONS
1.1 "Additional Quantity Rate" means One and 35/100ths Dollars ($1.35) per thousand
gallons, adjusted annually beginning on the Adjustment Date pursuant to the Consumer
Price Index.
1.2 "Additional Conforming Reclaimed Water" means available Conforming Reclaimed
Water in excess of the Minimum Available Volume.
1.3 "Additional Power Plant Conforming Reclaimed Water" means available Power Plant
Conforming Reclaimed Water in excess of the Minimum Available Volume.
1.4 "Adjustment Date" means May 31st of the year after which the first (1st) anniversary of
the COD occurs.
1.5 "Agreement"means this Agreement for the Delivery and Use of Reclaimed Water.
1.6 "Alternative Water" means any water, potable or non-potable, reclaimed or otherwise,
acceptable to and acquired by Generator from any source, including, without limitation,
the Town, to the extent the Minimum Available Volume is unavailable on any day or as
required by Generator in Section 8.5.
1.7 "Annual Capacity Payment" in any Contract Year is Five Hundred Thousand and
No/100ths Dollars ($500,000.00), adjusted annually beginning on the Adjustment Date
pursuant to the Consumer Price Index, for the annual delivery of up to and including the
Capacity Threshold by the Town to the Generator.
1.8 "Capacity Threshold"means the equivalent of an average of 1.8 million gallons per day
of Conforming Reclaimed Water delivered by the Town to the Generator, which is 657
million gallons in a 365-day year or 658.8 million gallons in a 366-day year.
1.9 "COD"means the date when the Power Plant enters commercial operations, as evidenced
by written notice of COD provided by Generator to the Town. The expected COD is
March 29, 2017.
1.10 "Conforming Reclaimed Water" means Reclaimed Water that satisfies the Water
Quality Standards.
1.11 "Consumer Price Index" means the Consumer Price Index, for all urban consumers
(CPI-U), 1982-1984=100 (not seasonally adjusted) as published by the Bureau of Labor
Statistics, U.S. Department of Labor, for the Washington-Baltimore, MD-VA-DC-WV
Consolidated Metropolitan Statistical Area.
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1.12 "Contract Year" means: (1) with respect to the first year of the Term in which COD
occurs, the period beginning on COD and ending on May 31; (2) with respect to the last
year of the Term, the period beginning June 1 and ending on the last day this Agreement
is in effect; and (3) with respect to every other year during the Term following COD, the
period beginning on June 1 and ending on May 31.
1.13 "County"means Loudoun County, Virginia.
1.14 "DEQ"means the Commonwealth of Virginia Department of Environmental Quality.
1.15 "Dispute Resolution Process"shall have the meaning set forth in Section 21.
1.16 "Effective Date"means the date first set forth above.
1.17 "EPA"means the United States Environmental Protection Agency.
1.18 "Financing Persons" means the lenders, security holders, investors, partners,
multilateral institutions, funds and others providing financing or refinancing for the
development, construction, ownership, operation, and/or maintenance of the Power Plant,
or any portion thereof, or any trustee or agent acting on behalf of any of the foregoing.
1.19 "Force Majeure Event" shall have the meaning set forth in Section 14.1.
1.20 "Generator" means Green Energy Partners/Stonewall LLC, a Virginia limited liability
company, its permitted successors and assigns.
1.21 "Generator System" means all those components of the Reclaimed Water System
downstream of the Point of Delivery to the point of service at the Power Plant.
1.22 "Gross Interruption of Service" means any Interruption of Service, other than an
Interruption of Service due to an event or occurrence addressed in Section 14 hereof,
which cannot be cured within one hundred twenty(120) days.
1.23 "Interruption of Service" means any supply disruption, regardless of the cause,
preventing the delivery of the Minimum Available Volume of Conforming Reclaimed
Water.
1.24 "Minimum Available Volume" means three and one-quarter (3.25) million gallons per
day of Conforming Reclaimed Water. The Town and Generator may increase the
Minimum Available Volume by written agreement establishing a new amount and such
other changes to the terms and conditions of this Agreement as a result of such increase
in the Minimum Available Volume; provided, however, in no event shall the Minimum
Available Volume exceed 7.5 million gallons per day of Conforming Reclaimed Water.
1.25 "Non-Conforming Water" shall have the meaning set forth in Section 10.3.
1.26 "Notice of Termination"shall have the meaning set forth in Section 16.1.
1.27 "Offset Rate" shall have the meaning set forth in Section 11.4.
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1.28 "Operation & Maintenance Processes" means the processes and requirements including,
at a minimum but without limitation, the items set forth in Schedule 5.1, and any other
process or requirement in accordance with Prudent Utility Practices.
1.29 "Point of Compliance"means the point at the WPCF following water treatment and prior
to discharge to the Purple Line where the Town is required to monitor the Reclaimed Water
for compliance with the Water Quality Standards.
1.30 "Point of Delivery" means the connection point on the volumetric flow meter, which
shall be located on the Property.
1.31 "Power Plant" means a natural gas-fired energy electrical power generation facility to be
developed on the Property.
1.32 "Power Plant Conforming Reclaimed Water"means Conforming Reclaimed Water that
also satisfies the Power Plant Water Quality Standards.
1.33 "Power Plant Easements" means easements across and under the Property for the
installation, operation and maintenance of the Purple Line and any other components of
the Town System up to the Point of Delivery and for access to and inspection of the
Reclaimed Water System.
1.34 "Power Plant Water Quality Standards" means, in addition to the Water Quality
Standards, the water quality requirements applicable for the use of Conforming
Reclaimed Water at the Power Plant, as set forth on Schedule 1.32.
1.35(a) "Price Escalation Cap" means a fraction of the average potable water cost in the
Town in the then current year as numerator divided by the potable water cost in the Town
in the COD year multiplied by one hundred fifty percent(150%)as follows:
(Average potable water cost in Town in current year)
Price Escalation= X 150%
Cap (Average potable water cost in Town in COD year)
(b) "Price Escalation Factor" means the lesser of(i) a fraction of the Consumer Price
Index in the then current year as numerator divided by the Consumer Price Index in the
COD year; or(ii)the Price Escalation Cap as follows:
(CPI in current year)
Price Escalation=Lesser of(i) or(ii) Price Escalation Cap
Factor (CPI in COD year)
1.36 "Project"means the development of the Power Plant on the Property.
1.37 "Property"means that certain property consisting of approximately one hundred one(101)
acres located south of the Town's corporate limits, as shown on Schedule 1.37 and more
particularly described on Schedule 1.35 attached hereto and incorporated herein by
reference.
Page 4 of 31
1.38 "Prudent Utility Practices"means(i)any of the practices, methods, and acts engaged in or
approved by a significant portion of the utility industry in the country and geographic region
where the Project is located during the relevant time period, or (ii) practices, methods and
acts that, in the exercise of reasonable judgment on the facts known (or that reasonably
should have been known) at the time a decision was made, could have been expected to
accomplish the desired result at a reasonable cost consistent with good business practices,
reliability, safety and expedition.
1.39 "Purple Line" means the pipeline and all associated equipment to be constructed for the
Town hereunder, including without limitation: the water pipeline; reclaimed water pump
station; disinfection system; instrumentation, valves and appurtenances; and software and
hardware updates for monitoring and operations equipment. The Purple Line shall be
located in the area set forth on Schedule 1.37 attached hereto and incorporated herein by
this reference thereto.
1.40 "Purple Line Costs" has the meaning set forth in Section 3.2 and means the Generator's
full costs of designing, engineering, permitting and constructing the Purple Line, subject
to the limitation set forth therein, including all costs associated with the acquisition of the
Purple Line Easement, subject to the limitations set forth in Section 4.3.
1.41 "Purple Line Easement" shall have the meaning set forth in Section 4.1.
1.42 "Reclaimed Water" means treated effluent derived from the Town System and processed
at the WPCF.
1.43 "Reclaimed Water System" means, collectively, the Town System and the Generator
System.
1.44 "Reuse Regulations" means the Virginia Water Reclamation and Reuse Regulations, as
set forth in 9 VAC 250-740 et seq.
1.45 "Sewer Line" means that certain gravity sewer main to be developed (as shown on the
Dewberry construction drawings for Phase II of the Town Lower Sycolin Sewage
Conveyance System (LSSCS)) from manhole 16, to manhole 45, and then from manhole
45 to manhole 29 of the Phase I Pump Station construction.
1.46 "Supplemental Water" means any water, potable or non-potable, reclaimed or
otherwise, acceptable to and acquired by Generator from any source, including, without
limitation the Town, which is either (1) in excess of the Minimum Available Volume,
other than Additional Conforming Reclaimed Water, or (2) in lieu of the Minimum
Available Volume in the event Generator has suspended delivery of Conforming
Reclaimed Water from the Town or has returned Conforming Reclaimed Water to the
Town for a failure to conform to the Power Plant Water Quality Standards that otherwise
would have satisfied the Minimum Available Volume.
1.47 "Term" means the period commencing on the Effective Date and continuing until the
twentieth (20th) anniversary of COD, and, if applicable, as renewed pursuant to Section
7.2.
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1.48 "Town"means the Town of Leesburg, a Virginia municipal corporation.
1.49 "Town System" means the Town's Reclaimed Water production, storage and
distribution systems including those components located on the Property up to and
including, without limitation, the Point of Delivery and including the volumetric flow
meter.
1.50 "Water Quality Standards" means collectively, (a) those certain minimum quality,
chemical, and particulate standards for the Town's current VPDES Permit set forth on
Schedule 1.48, attached hereto and incorporated herein by this reference thereto; (b) any
Level 2 Reclaimed Water Standards defined in and required by the Reuse Regulations
and that are applicable to the WPCF, the current standards being set forth on Schedule
1.48.
1.51 "Waterworks Regulations" means the Virginia Department of Health Waterworks
Regulations, as set forth in 12 VAC 5-590-10 et seq.
1.52 "WPCF"means the Town of Leesburg Water Pollution Control Facility.
1.53 "Zoning Approvals" means those certain land use applications filed with the County,
referenced as ZMAP 2009-0005, SPEX 2009-0009, and CMPT 2009-0001, that were
approved by the Loudoun County Board of Supervisors by unanimous vote on April 20,
2010,and any subsequent modifications thereto.
2 SALE AND PURCHASE OF RECLAIMED WATER
The Town shall sell and deliver to Generator, and Generator shall purchase and accept
Conforming Reclaimed Water at the Point of Delivery as follows:
2.1 Subject to the provisions of Section 16.3, the Town shall use its commercially reasonable
efforts to make the Minimum Available Volume available for delivery to Generator.
Subject to Section 2.3 below, Generator shall be obligated only to accept delivery of and
purchase Power Plant Conforming Reclaimed Water delivered to Generator of any
amount up to the Minimum Available Volume.
2.2 To the extent Additional Power Plant Conforming Reclaimed Water is produced by the
Town System and is needed by the Generator for operation of the Power Plant, subject to
Section 2.3.2 and Section 8.5 below, the Town shall have the obligation to sell and
Generator shall have the obligation to purchase such Additional Power Plant Conforming
Reclaimed Water from the Town pursuant to the terms and conditions of this Agreement.
2.3 Generator shall purchase Power Plant Conforming Reclaimed Water and Additional
Power Plant Conforming Reclaimed Water, subject to the following:
2.3.1 Unless otherwise reduced pursuant to the terms and conditions of this Agreement,
Generator shall pay annually to the Town the Annual Capacity Payment for
Conforming Reclaimed Water from the Town, and if applicable, the sum due for
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Conforming Reclaimed Water and Additional Conforming Reclaimed Water in
excess of the Capacity Threshold at the Additional Quantity Rate.
2.3.2 Notwithstanding any other provision of this Agreement, under no circumstance
shall Generator be required to accept or purchase water that does not meet the
Power Plant Water Quality Standards nor shall Generator be required to accept or
purchase water that Generator cannot use or store.
2.3.3 A metering device shall keep track of the number of gallons of Conforming
Reclaimed Water delivered to Generator, and the Town shall bill Generator on a
monthly basis as provided in Section 2.4.2 for the Annual Capacity Payment. If
the Capacity Threshold has been reached for a particular Contract Year, then the
Town shall thereafter bill Generator on a monthly basis as provided in Section
2.4.2 for the Conforming Reclaimed Water and, if applicable, Additional
Conforming Reclaimed Water so delivered and purchased that exceeds the
Capacity Threshold.
2.3.4 Subject to completion of construction of the Purple Line, the Town shall have
Conforming Reclaimed Water available for delivery to the Power Plant on June 1,
2016 (or such other later date as the Parties may agree), to support startup and
commissioning of the Power Plant.
2.4 Rates& Billing
2.4.1 During the period beginning on June 1, 2016 (as such date may be extended
pursuant to Section 2.3.4), and ending on the COD, the Generator shall pay to the
Town the rate of $1.35 per thousand gallons of Conforming Reclaimed Water
delivered by the Town to the Generator, and there shall be no applicable Annual
Capacity Payment, Capacity Threshold and Additional Quantity Rate.
2.4.2 Following the COD, on or before the twentieth day of each month, the Town shall
render an invoice to Generator for one-twelfth (1/12th) of the Annual Capacity
Payment for the current month. If the Capacity Threshold has been reached for a
particular Contract Year, then the Town shall issue invoices on a monthly basis
(in arrears) for the Conforming Reclaimed Water and, if applicable, applicable
Additional Conforming Reclaimed Water so delivered and purchased that exceeds
the Capacity Threshold at the Additional Quantity Rate. For the first Contract
Year following COD, Capacity Threshold will be reduced proportionally for the
partial year, and will be measured from COD to May 31St
2.4.3 On the date following the Adjustment Date, and on June 1St of each year
thereafter, including any renewal period, the Annual Capacity Payment and the
Additional Quantity Rate as of COD shall be adjusted by the Price Escalation
Factor.
2.4.4 Full payment of all invoices is due within thirty (30) days of the date of issuance.
If Generator fails to timely fully pay any undisputed charges as herein provided, a
late payment charge equal to three percent (3%) per year of the amount due shall
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be added to the amount billed and shall be paid to the Town by Generator.
Failure to fully pay any undisputed charge within sixty (60) days of the issuance
of an invoice for such charge shall constitute an event of default.
2.4.5 If Generator disputes any portion of the charges, then it will pay any undisputed
portion and the Parties will address the disputed portion through the Dispute
Resolution Process.
3 CONSTRUCTION AND OWNERSHIP OF PURPLE LINE
3.1 Generator shall, subject to the Town's oversight and approval, which shall not be
unreasonably withheld, conditioned or delayed, at Generator's sole cost and expense,
design, engineer, permit and construct the Purple Line in accordance with Prudent Utility
Practices, to allow for the flow of Reclaimed Water currently flowing from the WPCF to
the discharge point on the Potomac River to be instead diverted south to the Power Plant.
The location of the intercept point in the Town's WPCF effluent force main leading to
the Potomac River discharge point where the Purple Line shall begin shall be set at a
point jointly agreed to by the Town and Generator, which generally shall be in the area
set forth on Schedule 1.37 attached hereto and incorporated herein by this reference
thereto. The Purple Line shall be constructed as a bonded public improvement pursuant to
the Town's normal process and procedures. The Town shall accept the Purple Line when
completed in accordance with its approved plans and specifications and shall notify
Generator in writing within five (5) business days of its acceptance of the Purple Line.
Following the construction of the Purple Line and acceptance by the Town, Generator
shall convey to the Town all of its right, title and interests in and to the Purple Line,
including, but not limited to, as-built documents, O&M manuals, factory-recommended
spare parts inventory (i.e., spare monitoring and operations equipment), and three-year
factory service and calibration contracts, as described in Schedule 3.1.
3.2 The full costs of designing, engineering, permitting and constructing the Purple Line,
except as hereinafter provided, including all costs associated with the acquisition of the
Purple Line Easement, subject to the limitations set forth in Section 4.3 (the "Purple Line
Costs") shall be the responsibility of the Generator. In the event that the design of the
Purple Line requires the Town to make changes to the WPCF or the Town's existing
discharge monitoring and metering equipment necessary for the Town to discharge and
deliver Reclaimed Water to Generator in accordance with the requirements hereof,
Generator shall reimburse the Town for any such costs and expenses incurred (including
any engineering costs incurred by the Town associated with the changes described
above), and such costs shall be included within the Purple Line Costs. Approval from the
Generator will be required if the cumulative amount of such costs exceeds Fifty
Thousand Dollars ($50,000), such approval not to be unreasonably conditioned or
delayed. The Town shall have no responsibility for the Purple Line Costs, except as
limited herein and in Section 4.3.
3.3 Notwithstanding Section 3.2 above, if Generator requests that the Town add redundant
equipment or treatment capacity to the WPCF to support the discharge and delivery of
Reclaimed Water to Generator hereunder, the Town will agree to install such redundant
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equipment, add treatment capacity and take such other related actions, so long as (a)
Generator bears all costs and expenses incurred by the Town in taking such actions, (b)
such actions do not, and are not reasonably expected to, violate the Water Quality
Standards or otherwise adversely impact the Town's operation of the WPCF and (c) the
Town has control over the installation of redundant equipment and the schedule for
implementing any such actions.
3.4 Generator's obligations pursuant to the terms of this Agreement shall not create or
constitute any ownership right, interest, title, obligation or responsibility by Generator in,
to or for any part of the Town System. All operations and maintenance costs of the Purple
Line shall be the sole responsibility of the Town upon completion by Generator and
acceptance by the Town.
4 EASEMENTS FOR PURPLE LINE CONSTRUCTION
4.1 Generator will site the Purple Line, consistent with Prudent Utility Practices, on a route
that is direct, economical, and sensitive to natural features and landforms and co-located
within other existing and planned Town utility easements when possible (the "Purple
Line Easement"),which shall be located generally in the area set forth on Schedule 1.37.
4.2 Generator shall exercise its best reasonable efforts to acquire any necessary easements
from affected landowners. Subject to the limitation in Section 4.3, all costs associated
with the acquisition of the Purple Line Easement that are borne by Generator shall be
included in the Purple Line Costs.
4.3 The Town shall exercise its best reasonable efforts to acquire necessary easements for the
portion of the Purple Line that is collocated with the Town's planned sewer line, as
shown in Schedule 1.37. The right to construct on such easements shall be granted to the
Generator in time to support the construction schedule of the Purple Line. Generator
shall reimburse the Town for any costs and expenses incurred by the Town in acquiring
necessary easements from affected landowners. Subject to the limitation set forth herein,
all costs and expenses incurred by the Town and reimbursed by Generator associated
with the acquisition of the Purple Line Easement shall be included in the Purple Line
Costs. Generator shall reimburse the Town for such easement costs within thirty (30)
days of receipt of documentation from the Town evidencing such easement costs and
expenses. In no event shall total reimbursements exceed Thirty-five Thousand Dollars
($35,000)unless agreed to in writing by Generator.
4.4 The Town shall allow the Generator to use the Town's right of way for and along Russell
Branch Parkway for the Purple Line. The Town shall assist generator in obtaining
easements for the Purple Line and will request a Purple Line easement from Hunter Lee
Center LLC on their land application for the extension of Russell Branch Parkway.
4.5 Upon final determination of the location of the Purple Line Easement, the portions of the
Purple Line and any other components of the Town System to be located on the Property,
Generator shall convey to the Town all of its right, title and interests in and to the Power
Plant Easements. A Deed of Easement and an exhibit reflecting the Power Plant
Easements shall be prepared at the sole cost and expense of Generator, and after approval
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and full execution of the Deed of Easement by the Town and Generator, said Deed of
Easement and exhibit shall be recorded among the land records of the County.
5 OPERATION AND MAINTENANCE
5.1 The Town will operate and maintain the Town System, including without limitation the
Purple Line, on an as-designed/as-built basis in accordance with Prudent Utility Practices
and the Operation & Maintenance Processes. The Town will be responsible to obtain all
permits and other authorizations required for performance of its obligations hereunder,
and Generator shall provide the Town with such assistance and information as may be
reasonably required in order to obtain such permits and other authorizations.
5.2 Generator will include, as part of the Purple Line Costs, start-up training for the Town's
operations personnel on all monitoring and operations equipment associated with the
Purple Line construction.
6 DELIVERY AND DISTRIBUTION OF RECLAIMED WATER
6.1 The Town shall deliver Conforming Reclaimed Water to Generator at the Point of
Delivery pursuant to the terms and conditions of this Agreement and the Water Quality
Standards.
6.2 The Town System shall extend downstream through the Purple Line to the Point of
Delivery.
6.3 Generator shall construct, own, operate, and maintain the Generator System and the
Power Plant, consistent with Prudent Utility Practices. Construction of the Generator
System shall be in accordance with plans and specifications previously reviewed and
approved by applicable governmental authorities, final as-built copies of which shall be
submitted to the Town for its records no more than sixty(60) calendar days subsequent to
completion of construction.
7 TERM OF THE AGREEMENT
7.1 This Agreement shall be effective during the Term.
7.2 Provided no default or breach of this Agreement by Generator remains after notice and
opportunity to cure as provided in Sections 14 and 15 below, Generator may renew this
Agreement for a period of five (5) years by providing written notice to the Town not less
than ninety (90) calendar days in advance of the expiration of the then-current term.
Generator shall have the option to renew this Agreement in the same manner for up to
five (5) additional five (5)-year terms.
7.3 Generator may terminate this Agreement at any time prior to COD upon written notice to
the Town, provided that Generator will not be relieved thereby of any responsibility for
Purple Line Costs incurred prior to such termination, nor will Generator be entitled
thereby to any Credits therefor. Generator shall be relieved of any further responsibility
for the construction and costs of the Purple Line on and after the date of such termination,
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except that if construction has commenced, Generator shall be responsible for capping
and stabilizing that portion of the Purple Line installed as of the date of termination,
bringing disturbed areas to grade and re-seeding disturbed areas prior to bond release.
7.4 Beginning the fifteenth (15th) year after COD, and at any time thereafter during the
Term, Generator shall have the right to terminate this Agreement if the Power Plant
ceases operations in generating power for a period in excess of nine (9) consecutive
months and Generator provides the Town with certifications that Generator has no
current plan to re-start such operations in generating power at the Power Plant. Generator
shall provide written notice of such facts to the Town, and the termination shall be
effective on the later to occur of (a) 120 days following delivery of such notice to the
Town or(b)the 31st day of May following delivery of said notice to the Town.
8 RIGHTS TO PURCHASE WATER
8.1 The Town shall deliver and sell Reclaimed Water exclusively to Generator to the extent
water is needed by Generator for operation of the Power Plant; provided, however, Town
shall have the right to sell Reclaimed Water to third parties so long as Town fully
complies with its obligation to provide Conforming Reclaimed Water to Generator
pursuant to the requirements of Sections 2.1 and 2.2 of this Agreement. Any agreement
between the Town and such third parties shall note Generator's preemptive right to
purchase all Reclaimed Water produced by Town and, for this reason, shall reflect the
possibility that Town's provision of Reclaimed Water to any such third parties could be
reduced or eliminated dependent upon Generator's need for Reclaimed Water.
8.2 Town grants Generator an exclusive right of first refusal on any additional guaranteed
capacity that becomes available above the Minimum Available Volume.
8.3 Generator shall have the obligation to purchase Additional Power Plant Conforming
Reclaimed Water from the Town, to the extent it is available and required by Generator
for operation of the Power Plant.
8.4 The Power Plant, under certain conditions, may require more Power Plant Conforming
Reclaimed Water than the Town is able to produce and deliver to Generator. Except as
provided in Section 8.5, the Town shall have the first option to provide additional water
to the Point of Delivery from any source (e.g., potable water) that meets the Power Plant
Water Quality Standards to satisfy the requirements of the Power Plant for the duration of
such conditions. Any additional water made available by the Town and purchased by the
Generator from the Town under such circumstances shall meet the Power Plant Water
Quality Standards and shall be treated for all purposes hereunder as though Power Plant
Conforming Reclaimed Water or, if applicable, Additional Power Plant Conforming
Reclaimed Water, had been delivered. If the Town is unable to provide sufficient
additional water that Generator needs for operation of the Power Plant, Generator shall
have the right, but not the obligation, to acquire Alternative Water or Supplemental
Water, as applicable, from any sources at any time to meet its then-current requirements.
8.5 Notwithstanding any term or condition in this Agreement to the contrary, if the Town is
unable to maintain actual production for delivery to Generator of three and three-quarter
Page 11 of 31
(3.75) million gallons per day of Conforming Reclaimed Water (on average) for any
rolling sixty (60) day period, then Generator shall have the option and the right within
thirty (30) days after any such sixty (60) day period to send a written notice to the Town
identifying said period of time and requesting that the Town produce for delivery to
Generator a minimum of three and three-quarter (3.75) million gallons per day of
Conforming Reclaimed Water. The "actual production for delivery to Generator" shall be
measured by the sum of the volume of Conforming Reclaimed Water delivered to
Generator and the volume of Conforming Reclaimed Water discharged into the Potomac
River each day, less Two Hundred Fifty Thousand (250,000) gallons per day.
Within seven (7) business days of receipt of any such notice, the Town shall provide
Generator with a detailed plan to maintain actual production for delivery to Generator of
at least three and three-quarter (3.75) million gallons per day of Conforming Reclaimed
Water and a written commitment to implement said plan such that the Town maintains
actual production for delivery to Generator an average minimum of three and three-
quarter (3.75) million gallons per day of Conforming Reclaimed Water for the next (60)
sixty days or such lesser period as Generator may agree. In the event the Town is unable
or unwilling to maintain actual production for delivery to Generator an average minimum
of three and three-quarter(3.75) million gallons per day of Conforming Reclaimed Water
as provided herein, Generator shall have the option and the right, but not the obligation,
to (i) limit purchases from the Town to the greater of (X) the Minimum Available
Volume and (Y) the average number of gallons per day of Conforming Reclaimed Water
that the Town actually produced for delivery to Generator during such sixty (60) day
period and (ii) purchase Alternative Water from any other source for requirements above
said limit. Such limitation shall remain in effect for the balance of the then current
Contract Year and for the entire period of the next Contract Year.
By way of illustration, if the Town's actual production for delivery to Generator of
Conforming Reclaimed Water averages three and four-tenths (3.4) million gallons per
day for a sixty (60) day period and, after provision of notice and the opportunity to
provide a plan,the Town is unable or unwilling to maintain actual production for delivery
to Generator an average minimum of three and three-quarter (3.75) million gallons per
day of Conforming Reclaimed Water, then Generator shall have the option and the right
to (i) limit purchases from the Town to three and four-tenths (3.4) million gallons per day
and (ii) purchase Alternative Water from any other source for requirements above three
and four-tenths (3.4) million gallons per day for the balance of the then current Contract
Year and for the entire period of the next Contract Year. The Town would continue to
receive the Annual Capacity Payment and the Additional Quantity Rate, as applicable, for
volumes up to three and four-tenths (3.4) million gallons per day delivered by the Town,
subject to the terms and conditions of this Agreement.
9 USE OF RECLAIMED WATER
9.1 Generator hereby agrees to use the Reclaimed Water in accordance with the applicable
federal, state, and local regulations for the use of Reclaimed Water, including the Reuse
Regulations, in accordance with the requirements of this Agreement.
Page 12 of 31
9.2 Except with respect to water returned in accordance with Section 10, Generator hereby
agrees that no discharge from the Reclaimed Water will be transferred to the Town
without agreement with the Town.
10 QUALITY OF RECLAIMED WATER SUPPLY
10.1 The Town shall use commercially reasonable efforts to deliver Conforming
Reclaimed Water at the Point of Compliance. THE TOWN MAKES NO
WARRANTIES THAT THE RECLAIMED WATER WILL MEET THE POWER
PLANT WATER QUALITY STANDARDS AND MAKES NO WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR REUSE OR OTHER
PURPOSE AS TO THE RECLAIMED WATER.
10.2 The Water Quality Standards set forth on Schedule 1.48 shall be updated from
time to time to conform to changes in the Town's VPDES Permit and any revisions to the
Level 2 Reclaimed Water Standards required by the Reuse Regulations that are
applicable to the WPCF. Absent written agreement by both parties, there shall be no
change to the Power Plant Water Quality Standards.
10.3 If the Town delivers Reclaimed Water to Generator at the Point of Delivery that:
(a) fails to conform to the Water Quality Standards (hereinafter, "Non-Conforming
Water"), then Generator, at its option and in its sole discretion, may (i) reject delivery of
all or any portion of such Reclaimed Water that does not meet the Water Quality
Standards and (ii) revoke its acceptance of such Reclaimed Water and return any
quantities of Non-Conforming Water to the Town in accordance with Section 10.4; or (b)
meets the Water Quality Standards but fails to meet the Power Plant Water Quality
Standards, then Generator, at its option and in its sole discretion, may (i) return such
Conforming Reclaimed Water to the Town in accordance with Section 10.4 below
(provided that Generator shall be required to purchase all such quantities of Conforming
Reclaimed Water delivered to the Point of Delivery) and (ii) suspend further deliveries of
Conforming Reclaimed Water until such time Reclaimed Water conforms to the Power
Plant Water Quality Standards.
10.4 If the Town delivers Reclaimed Water to the Point of Delivery that fails to meet
the Water Quality Standards or the Power Plant Water Quality Standards, then Generator
may discharge such quantities of Reclaimed Water into the Sewer Line to be
interconnected with the Power Plant and return such Reclaimed Water to the WPCF for
treatment and discharge. In such event, Generator shall drain the Reclaimed Water from
the Purple Line into the Sewer Line in an even fashion over a ten (10)-hour period, or
such other period as the parties may reasonably agree given the circumstances. Except
for Reclaimed Water that is delivered to Generator and fails to conform to the Water
Quality Standards, Generator shall be responsible for installing a flow meter at the point
of discharge into the Sewer Line and all costs associated with the discharge of Reclaimed
Water into the Sewer Line, including payment to the Town of the then-applicable sewer
usage charge for all such quantities returned to the Town through the Sewer Line.
10.5 The parties acknowledge and agree that, as of the Effective Date hereof, the
Sewer Line has not been approved by all necessary regulatory bodies and has not been
Page 13 of 31
constructed. To ensure that there is adequate access and space for the construction and
maintenance of both the Purple Line and the Sewer Line along the same route, the party
that first undertakes construction along the affected route (either the Purple Line or the
Sewer Line) shall be responsible for overblasting to ensure access and space for the other
pipeline. The parties agree to share equally in the cost of such overblasting. If the Sewer
Line is not constructed, is not available or is no longer in service, then the parties shall
meet and use commercially reasonable efforts to develop an alternative arrangement for
the return of any Reclaimed Water to the Town.
10.6 The Town will monitor the Reclaimed Water quality to determine compliance
with the Water Quality Standards at the Point of Compliance. (For reference, the Point of
Compliance for Level 2 treatment is identified on Schedule 1.37.) The Town shall have
the obligation to restore promptly the quality of the Reclaimed Water to the level required
by the Water Quality Standards and the terms and conditions of this Agreement.
10.7 Additional testing may be performed any time by either the Town or Generator.
Generator, at its cost and expense, shall have the right, but not the obligation, (a)to install
real time testing equipment on the Town System to test the Reclaimed Water for
compliance with the Water Quality Standards and the Power Plant Water Quality
Standards, and to perform such other monitoring as the Generator may desire, and (b) to
maintain and monitor such testing equipment. Any disagreements between results with
respect to the Water Quality Standards or the Power Plant Water Quality Standards will
be settled by an independent lab using a pre-defined sampling procedure defined in the
Operation & Maintenance Process. Each party shall notify the other immediately upon
the identifying any deterioration below the Water Quality Standards or the Power Plant
Water Quality Standards.
11 INABILITY OR FAILURE TO DELIVER CONFORMING RECLAIMED WATER
11.1 If the Town anticipates or experiences an Interruption of Service, it shall
immediately notify Generator by telephone and email (with receipt acknowledgement of
any email notification) and shall promptly follow up in writing stating the cause of the
Interruption of Service and the anticipated duration, and its specific plan to prevent any
future recurrence of an Interruption of Service arising from the same or a similar cause.
11.2 If all or any portion of the Town System becomes non-operational, by reason of
some natural or other circumstance which prevents the Town from performing any or all
of its obligations hereunder, the Town hereby agrees that it will use its best efforts to
restore the Town System to full usefulness by making necessary repairs or providing
adequate replacements and to resume the performance of its obligations.
11.3 The Town and Generator shall cooperate to coordinate planned service
disruptions based upon seasonal considerations, timing duration and other factors
germane to the parties, and to ensure that planned outages occur during Generator's low
demand period from March 15 to May 15 and from October 1 to November 15. The
Town and Generator shall mutually agree on an acceptable schedule for any planned
outages. The Town shall not be responsible for any Interruption of Service or delivery
Page 14 of 31
failure penalties pursuant to Section 11.4 below if such Interruption of Service occurred
during a planned service period that had been previously coordinated with and agreed to
by Generator.
11.4 Except for events of Force Majeure as provided in Section 14 or as provided in
Section 11.3, if the Town experiences an Interruption of Service or otherwise is unable or
fails to deliver the Minimum Available Volume of Conforming Reclaimed Water
measured daily, then Generator has the right to offset the Annual Capacity Payment
and/or sums that otherwise would have been due at the Additional Quantity Rate at the
rate of Ten and No/100ths Dollars ($10.00) per thousand gallons (the "Offset Rate")
measured daily for the Alternative Water acquired by Generator. The total offset for a
particular year shall not exceed the Annual Capacity Payment. On the date following the
Adjustment Date, and on June 1st of each Contract Year thereafter, including any
renewal period, the Offset Rate shall be adjusted by the Price Escalation Factor. If the
Town experiences an Interruption of Service or otherwise is unable or fails to deliver the
Minimum Available Volume of Conforming Reclaimed Water measured daily, then
Generator has the right to secure Alternative Water from any source notwithstanding any
other provision of this Agreement.
11.5 In the event that the Town has available the Minimum Available Volume of
Conforming Reclaimed Water measured daily, but (x) Generator has suspended delivery
of Conforming Reclaimed Water due to failure to meet the Power Plant Water Quality
Standards or (y) Generator has returned Conforming Reclaimed Water to the Town for a
failure to conform to the Power Plant Water Quality Standards, no offset shall be
applicable and any water acquired by Generator in lieu of Conforming Reclaimed Water
shall be deemed Supplemental Water.
12 CROSS-CONNECTION AND BACKFLOW PREVENTION
12.1 Under the Reuse Regulations, it is the responsibility of the Town to protect
individuals from the consumption of Reclaimed Water. Direct cross-connections
between the Generator System and any potable water supply system are not permitted.
12.2 The Generator System shall be in compliance with the cross-connection control
and backflow prevention requirements of the Virginia Waterworks Regulations (12 VAC
5-590-580 et seq.), the Uniform Statewide Building Code and local building and
plumbing codes.
12.3 Generator shall be responsible for installing and maintaining any additional
backflow prevention measures as necessary for the protection of potable or non-potable
water systems located on the Property. Generator shall provide a list of these devices and
their locations to the Town. Generator shall, on at least an annual basis, test the
performance of all backflow prevention devices, and shall make available to the Town all
records documenting the installation, maintenance and testing of devices to assure their
proper operation and protection of the Reclaimed Water. The Town shall have the right
to perform an annual inspection of the Generator's backflow prevention measures and
may, at its expense,perform an annual test of such backflow prevention devices.
Page 15 of 31
13 ADVISORY SIGNS
13.1 Initial signage shall be posted by the Town, as required by Section 9 VAC 25-
740-160 of the Reuse Regulations, to ensure proper use of Reclaimed Water and to
protect the health and safety of the general public. Signage shall be kept in appropriate
condition so that the signs are legible and free of debris, vandalism or graffiti.
14 FORCE MAJEURE AND EXCUSE FROM PERFORMANCE BY GOVERNMENTAL
ACTS
14.1 The respective duties and obligations of the parties hereunder shall be suspended
while and as long as performance thereto is prevented or impeded by strikes,
disturbances, riots, fire, severe weather, government action (excluding action of the
Town), war acts, acts of terrorism, acts of God or any other cause similar or dissimilar to
the forgoing that are beyond the reasonable control and not due to the fault or negligence
of the party from whom the affected performance was due ("Force Majeure Event"). In
the event of a Force Majeure Event affecting the Town, the Annual Capacity Payment
shall be reduced proportionally by the period of time of such occurrence.
14.2 In the event that a Force Majeure Event prevents the affected party from
performing its duties and obligations for a period of sixty(60) consecutive days, the non-
affected party shall have the right to terminate this Agreement upon thirty (30) days prior
written notice to the affected party, unless the affected party cures the Force Majeure
Event and commences performance with such notice period. For the avoided of doubt, a
termination pursuant to this Section 14.2 shall not constitute a default by the affected
party.
14.3 If for any reason during the Term of this Agreement, local (excluding the Town),
state, or federal governments or agencies fail to issue necessary permits, fail to grant
necessary approvals, or shall require any change in the operation of the treatment,
transmission and distribution systems for Reclaimed Water or the application and use of
Reclaimed Water provided by the Town, then to the extent that such requirements shall
affect the ability of any party to perform any of the terms of this Agreement, the affected
party shall be excused from the performance thereof and a new agreement may be
negotiated by the parties in conformity with such permits, approvals, or requirements.
Page 16 of 31
15 DEFAULT
15.1 If the Town or Generator fails to keep, perform, or abide by any material term,
condition, or covenant of this Agreement to be performed or observed or violates any
federal, state, or local regulations pertaining to the approved use and management of
Reclaimed Water and does not cure such default within thirty (30) days after written
notice thereof or, if such default cannot be cured in such period, does not within thirty
(30) days commence with diligence and dispatch such act or acts as shall be necessary to
cure the default and shall not cure such default within a reasonable time, then the non-
defaulting party shall be entitled to pursue the remedies hereinafter set forth.
15.2 Notwithstanding any other provision of this Agreement, a Gross Interruption of
Service shall constitute a default by the Town.
16 REMEDIES FOR DEFAULT AND FAILURE TO CURE
16.1 In the event of a default and failure to cure as provided in the preceding
paragraph, within thirty (30) days thereafter the non-defaulting party may terminate this
Agreement by giving at least thirty (30) days prior written notice (the "Notice of
Termination") to the defaulting party and this Agreement shall terminate after the date of
such notice.
16.2 In the event of a default and failure to cure by Generator as provided in Section
15, within ten (10) days thereafter the Town may, without terminating this Agreement,
suspend Reclaimed Water service to Generator upon ten (10) days written notice. Such
suspension may continue for the shorter of the period specified in the notice and the
period until such time as Generator has cured any default. At the end of the period of
suspended service, if Generator has not corrected the breach, the Town may terminate
this Agreement upon thirty (30) days written notice to Generator.
16.3 In the event of a default and failure to cure by Town as provided in Section 15,
within ten (10) days thereafter Generator may, without terminating this Agreement,
suspend payments to Town upon ten (10) days written notice. Such suspension may
continue for the shorter of the period specified in the notice and the period until such time
as Town has cured any default. At the end of the period of suspended service, if Town
has not corrected the breach, Generator may terminate this Agreement upon thirty (30)
days written notice to Town.
16.4 Nothing in Sections 15 and 16 shall be construed as a limitation on or a
prerequisite to the Generator exercising its rights provided in this Agreement to reject
water that does not meet the Power Plant Water Quality Standards or to secure
Supplemental Water, Alternative Water and/or to offset the Annual Capacity Payment
and other sums due as provided elsewhere in this Agreement. The non-defaulting party
also has rights and remedies that may exist under law. All rights and remedies may be
exercised successively or concurrently.
17 VIOLATIONS
Page 17 of 31
17.1 The following violations may result in a penalty in an amount not to exceed one
thousand dollars ($1,000.00) for the occurrence of any of the following: (i) use of
Reclaimed Water for purposes not allowed by the Reuse Regulations; (ii) failure to
maintain required records pursuant to the Reuse Regulations; (iii) failure to maintain
Generator equipment that uses Reclaimed Water such that it creates a hazardous
condition; (iv) failure to maintain signage located on Generator property; or (v) any
failure of Generator to comply with this Agreement which is not remedied within a
reasonable period after written notice to Generator resulting in the Town being in
violation of the Reuse Regulations. Such penalties shall be assessed by the Town on a
per-violation, per-day basis. No such penalties may be assessed, however, unless the
Town has delivered written notice of a violation and Generator fails to cure such
violation within thirty (30) days after receipt thereof or, if such violation cannot be cured
in such period, does not within thirty (30) days commence with diligence and dispatch
such act or acts as shall be necessary to cure the violation and shall not cure such
violation within a reasonable time.
17.2 Generator shall pay any penalties to the Town within forty-five(45) calendar days
of delivery of written notice of the violation. Unpaid charges and penalties shall, after
forty-five (45) calendar days, accrue interest thereafter at a rate of three percent (3%) per
annum.
17.3 Issuance of a penalty shall not be a bar against, or a prerequisite for, taking any
other action against Generator for a default hereunder.
17.4 Penalties and any interest on unpaid charges are not eligible for pass through
under any other agreement with the Town.
18 HOLD HARMLESS AND INDEMNIFICATION
Generator shall indemnify, defend and save the Town harmless from all fines, suits,
judgments, claims, demands and actions of any kind, and from liability for injury suffered (or
alleged to be suffered) by any employee or contractor engaged by Generator for the benefit of the
Town, not in the permanent employment of the Town and from liability for injury or damage to
any person whomsoever, whether an invitee or licensee, except to the extent of liability or
damage that is the result of the negligence or willful conduct of Town, its employees, agents
and/or contractors.
Page 18 of 31
19 INSURANCE
19.1 At least thirty (30) days prior to the commencement of construction of the Purple
Line, Generator shall procure and maintain in full force and effect while this Agreement
is in effect with responsible insurance providers (as evidenced by an AM Best rating of
A-/VIII or better) the following insurance in at least the minimum amounts specified
below. The procurement and maintenance of such insurance shall be at Generator's own
expense.
19.1.1 Workers' Compensation and Employers' Liability. Workers' compensation
insurance in compliance with appropriate federal and state laws, and Employers'
Liability Insurance with limit of not less than $500,000 for bodily injury per
occurrence and $500,000 in the aggregate, and $500,000 disease policy limit.
19.1.2 Commercial General Liability. Commercial general liability insurance,
occurrence form, including, but not limited to, contractual coverage for all of the
provisions of this Agreement, with limits of not less than $1,000,000 per
occurrence and $2,000,000 in the aggregate, $1,000,000 Products and Completed
Operations aggregate; $1,000,000 Personal Injury and Advertising injury per
offense;
19.1.3 Environmental/Pollution Liability. Environmental/Pollution Liability covering
Generator's liability for bodily injury, property damage and environmental
damage resulting from pollution and related cleanup costs incurred, which may
arise out activities under this Agreement, with limits of not less than$5,000,000.
19.1.4 Automobile Liability. Automobile liability insurance, including vehicles owned,
hired and non-owned, with a combined single limit of not less than $1,000,000
per accident;
19.1.5 Excess Liability. Other than the policies for Workers' Compensation and
Employers Liability insurance, the liability limits may be satisfied through a
combination of primary and excess (or umbrella) coverage.
19.2 The Town shall be furnished with a certificate of insurance as evidence the
foregoing insurance is in effect. Generator shall provide the Town with thirty (30) days'
notice prior to the cancellation or material change of any such coverage. The Town shall
be named as an additional insured with respect to Generator's activities under this
Agreement under the Liability coverage required by Section 19.1. Copies of the actual
endorsements to the Liability coverages evidencing the additional insured status must
accompany the certificate of insurance. Maintenance by Generator of the insurance
required herein shall in no way be interpreted as relieving Generator of any other
obligations it may have under this Agreement.
19.3 Generator's insurance coverage shall be primary coverage without right of
contribution from any other insurance carried by the Town. Insurance maintained by the
Town is for the exclusive benefit of the Town and shall not inure to the benefit of
Page 19 of 31
Generator. All policies procured by Generator, other than for Worker's Compensation,
shall require the insurer to waive subrogation against the Town.
20 ACCESS
Upon forty-eight (48) hours written notice, each party shall have the right, at all
reasonable times, to enter upon the property of the other to review and inspect the other party's
facilities and operations with respect to the conditions agreed upon herein.
21 DISPUTE RESOLUTION
In the event of any dispute between the parties, the parties shall attempt first to resolve
the dispute by informal negotiation between their staff members. If the dispute cannot be
resolved by informal staff negotiation, then each of the parties shall promptly send the other a
detailed letter, describing the dispute and the basis for their respective positions. If the dispute is
still not resolved, then each party will designate a senior manager. The senior managers will
confer within 10 business days and attempt to resolve the dispute. If the senior managers are
unsuccessful in resolving the dispute, then each party will have recourse to any otherwise
available legal or equitable remedy, provided, however that any litigation shall be brought in the
state courts of the Commonwealth of Virginia located in the County.
22 ASSIGNMENT
This Agreement may be assigned by Generator to any party that acquires all or
substantially all of its interest in the Project;provided such party(i) has technical capabilities and
experience similar to or greater than Generator, (ii) has a credit rating (if any) and financial
resources similar to or greater than Generator, and (iii) is otherwise reasonably acceptable to
Town. No other assignment shall be made by either party without the prior written consent of
the other party, which shall not be unreasonably withheld, conditioned or delayed.
The Town acknowledges that the Financing Persons may under certain circumstances
foreclose upon and sell, or cause Generator to sell or lease the Power Plant and cause any new
lessee or purchaser to assume all of the interests, rights, and obligations of Generator arising
under this Agreement. In such event, Town agrees to the assignment by Generator and the
Financing Persons of this Agreement and its rights herein to such purchaser or lessee and shall
release the Generator from all obligations hereunder upon any such assignment, provided that the
Generator shall not be released or discharged from and shall remain liable for any and all
obligations to the Town arising or accruing under the assigned Agreement prior to such
assumption.
23 EXCLUSION OF CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY
Notwithstanding anything to the contrary in this Agreement, neither Town nor Generator,
nor their subcontractors or suppliers of any tier, shall be liable to the other for any consequential,
special, incidental, indirect or punitive losses or damages, whether arising in contract, warranty,
tort (including negligence), strict liability or otherwise, including losses of use, profits, business,
reputation or financing.
Page 20 of 31
In no event shall the Town's liability to Generator in any Contract Year exceed the
amount of the applicable Annual Capacity Payment, regardless of theory of law.
24 DISCLAIMER OF THIRD PARTY BENEFICIARIES
This Agreement is solely for the benefit of the parties hereto, and their respective
successors or assigns, and no right or cause of action shall accrue to, upon or by reason hereto or
for the benefit of any third party not a party hereto or a successor or assign of a party.
25 SEVERABILITY
If any part of this Agreement is found invalid or unenforceable by any court, such
invalidity or unenforceability shall not affect the other parts of this Agreement if the rights and
obligations of the parties contained therein are not materially prejudiced and if the intentions of
the parties can continue to be effective. To that end,this Agreement is declared to be severable.
26 BINDING UPON SUCCESSORS
This Agreement shall be binding upon and shall inure to the benefit of the successors or
assigns of the parties hereto.
27 APPLICABLE LAW
This Agreement and the provisions contained herein shall be construed, controlled, and
interpreted according to the laws of the Commonwealth of Virginia.
28 NOTICES
Unless otherwise specified in this Agreement, all notices or requests shall be in writing
and shall be given by hand delivery or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Town: With a copy to:
Town of Leesburg Town of Leesburg
Attn: Department of Utilities Attn: Town Manager
1385 East Market Street 25 West Market Street
Leesburg, VA 20175 Leesburg,VA 20176
(703)-771-2750 (703) 771-2700
or to such other persons and places as the parties may specify by notice. The
effective date of any notice or request shall be the date of receipt if delivered by hand, or the
postmarked date thereof.
If to Generator: With a copy to:
Green Energy Partners/Stonewall LLC J. Randall Minchew, Esquire
Attention: Ross Metersky Walsh, Colucci, Lubeley,
Page 21 of 31
4100 Spring Valley, Suite 1001 Emrich & Walsh, PC
Dallas, TX 75244 1 East Market Street, Suite 300
Leesburg, VA 20176
or to such other persons and places as the parties may specify by notice. The
effective date of any notice or request shall be the date of receipt if delivered by hand, or the
postmarked date thereof.
29 AMENDMENT
This Agreement may be amended or modified on the agreement of both parties and
documented in a writing signed by duly authorized representatives of both parties.
30 COUNTERPART EXECUTION
The parties may execute this Agreement in counterparts, which shall, in the aggregate,
when signed by both parties constitute one and the same instrument; and thereafter, each
counterpart shall be deemed an original instrument as against any party who has signed it.
31 ENTIRE AGREEMENT
This Agreement, including all attachments hereto (all of which are incorporated by
reference herein), shall constitute the entire agreement between the parties relating to the subject
matter hereof, and supersedes and replaces any provisions on the same subject contained in any
other agreement among the parties, whether written or oral,prior to the Effective Date.
(SIGNATURES ON FOLLOWING PAGE)
Page 22 of 31
SCHEDULE 1.32
POWER PLANT WATER QUALITY STANDARDS
Ammonia <0.5 mg/I as NH3
Turbidity <2.0 NTU
Phosphate <2.6 mg/I as P
Iron <0.1 mg/I as Fe
Chlorides <170 mg/I as CI
Page 24 of 31
SCHEDULE 1.35
PROPERTY DESCRIPTION
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Page 25 of 31
SCHEDULE 1.37
PURPLE LINE
Page 26 of 31
WPCF
Approximate location for Point of
Compliance. Exact location on
WPCF site may vary
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Approximate location or. • nt of Delivery,
where the flow m will be located.
• Exact location on a party may vary
Page 27 of 31
SCHEDULE 1.48
WATER QUALITY STANDARDS
The Town's current VPDES Permit requirements are set forth below (subject to change based on
Permit revisions):
A. Effluent Limitations and Monitoring Requirements
1. Outfall 001-7.5 MGD Facility
a. There shall be no discharge of floating solids or visible foam in other than trace amounts.
b. This facility has Total Nitrogen and Total Phosphorus calendar year load limits
associated with this outfall included in the current Registration List under registration
number VAN010061,enforceable under the General VPDES Watershed Permit
Regulation for Total Nitrogen and Total Phosphorus Dischargers and Nutrient Trading in
the Chesapeake Watershed in Virginia.
c. During the period beginning with the permit's effective date and lasting until the
expiration date or the issuance each the CTO for the 10 MGD facility;whichever occurs
first,the permittee is authorized to discharge from Outfall Number 001. Such discharges
shall be limited and monitored by the permittee as specified below.
Parameter Monitoring Requirements
Discharge Limitations
Monthly Average ) Weekly Average) Minimum Maximum(I) Frequency Sample
Type
Flow(2)(MGD) NL N/A N/A NL Continuous TIRE
pH N/A N/A 6.5 S.U. 8.5 S.U. 1/D Grab
cBOD5 10 mg/L 280 15 mg/L 420 N/A N/A 1/D 24H-C
kg/day kg/day
Total Suspended Solids,TSS 10 mg/L 280 15 mg/L 420 N/A N/A I/D 24H-C
kg/day kg/day
Total Kjeldahl Nitrogen,TKN 3.0 190 4.5 280 N/A N/A 1/D 24H-C
mg/L lb/day mg/L lb/day
DO N/A N/A 5.0 mg/L N/A 1 D Grab
Total Residual Chlorine
(after dechlorination) 0.011 mg/L 0.014 mg/L N/A N/A 1/D Grab
E.cola (Geometric Mean) 126 n/100 mL N/A N/A N/A 1/D Grab
NO2+NO3 as Nitrogen NL mg/L N/A N/A N/A 1/W 24H-C
Total Nitrogen(3) NL mg/L N/A N/A N/A 1/W Calculated
Total Nitrogen—Year to Date) NL mg/L N/A N/A N/A 1/M Calculated
Total Nitrogen—Calendar Year(4) 8.0 mg/L N/A N/A N/A 1/Y Calculated
Total Phosphorus NL/mg/L N/A N/A N/A 1/W 24H-C
Total Phosphorus—Year to Date) NL mg/L N/A N/A N/A 1/M Calculated
Total Phosphorus-Calendar Year(4) 2.0 mg/L N/A N/A N/A 1/Y Calculated
Chronic Toxicity—C.dubia(rue N/A N/A N/A N/L 1/Y 24H-C
Chronic Toxicity — P. promelas
(TUe)(5) N/A N/A N/A N/L I/Y 24H-C
(')See Park I.B. MGD=Million gallons per day. 1/D=Once every day.
°The design flow is 7.5 MGD. N/A=Not applicable I/W=Once every week
(')Total Nitrogen is the sum of Total Kjeldahl Nitrogen ad NO2+NO3 N/L=No limit;monitor and report 1/M=Once every month
Nitrogen and shall be calculated from the results of those tests.
(4)See Part I.B.3.for nutrient reporting calculations S.U.=Standard Units l/Y=Once every year
(5)See Part I.C.for toxicity monitoring requirements
24H-C =A flow proportional composite sample manually or automatically, and discretely or continuously, for the entire discharge of the
monitored 24-hour period. Where discrete sampling is employed, the permittee shall collect a minimum of twenty-four (24) aliquots for
compositing.Discrete sampling may be flow proportioned either by varying the time interval between each aliquot or the volume of each aliquot.
Time composite samples consisting of a minimum of twenty-four(24)grab samples obtained at hourly or smaller intervals may be collected
where the permittee demonstrates that the discharge flow rate(gallons per minute)does not vary by 10%or more during the monitored discharge.
Grab=An individual sample collected over a period of time not to exceed 15-minutes.
Page 28 of 31
Virginia's Water Reclamation and Reuse Regulation 9VAC25-740
Virginia's Reclaimed Water Standards
Parameter Level 2
Minimum treatment required Standard disinfection of secondary effluent
Fecal Coliform, OR Monthly geometric mean <200 colonies/100mL;
CAT 800 colonies/100mL
E.Coli, OR Monthly geometric mean < 126 colonies/100mL;
CAT>235 colonies/100mL
Enterococci Monthly geometric mean<35 colonies/100mL;
CAT> 104 colonies/100mL
Total Residual Chlorine CAT < 1 mg/L after a minimum contact time of 30
minutes at avg flow or 20 minutes at peak flow
pH 6-9
BOD5, OR Monthly average < 30 mg/L; max weekly avg < 45
mg/L
CBOD Monthly average < 25 mg/L; max weekly avg < 40
mg/L
Turbidity N/A
Total Suspended Solids Monthly average < 30 mg/L; max weekly avg < 45
mg/L
Page 29 of 31
SCHEDULE 3.1
SUPPLEMENTAL PURPLE LINE DELIVERABLES
• The Town requires Generator to supply all reasonable and customary instrumentation or
electronic equipment (i.e., meters and automated valves or major components of said items)
used in the operation of the Purple Line as spare parts to maintain Reliability Class I of the
Purple Line and its operation. The items and services set forth below are customary in the
industry, based on comparable facility expansions or upgrades. The Supplemental Purple
Line Deliverables described in this Schedule 3.1 shall be finalized upon the review of the
final Purple Line design plan by the Town.
o Service and support on instrumentation and equipment (including the service and
calibration contracts described in Section 3.1).
o Lists and supplies of manufacture recommended spare parts to include
• Relays
• Switches
• Gauges
• Specialized diagnostic and hand tools
o Computer SCADA system
• Software program copies and computer equipment(lap top)to access PLC
• PLC cards
• Power
• Processor
• Input and output cards
• Other critical items needed for PLC operation
o Facility upgrades may include a standard structure adhering to facility architectural
standards to house computer controls and monitoring devices. (dependent on design
plans)
o Additional flow monitoring devices and chart recording capabilities may also be
needed
• To maintain reliability of the Purple Line as set forth above, the Town requires complete
spares or redundant equipment for meters, automated values and other major components
(similar to the spares and redundant equipment required for operation and maintenance of the
WPCF).
Page 30 of 31
SCHEDULE 5.1
OPERATION & MAINTENANCE PROCESS
The Town will operate and maintain the Town System, including without limitation the
Purple Line, on an as-designed/as-built basis in accordance with Prudent Utility Practices and
Operation &Maintenance Processes including, without limitation, the following:
• Town and Generator will agree on control systems to enable Generator to remotely
control the operation of the valves that divert the flow of Reclaimed Water between the
Potomac River (via Outfall 001) and the Purple Line to prevent Reclaimed Water from
entering the line if the Town's monitoring demonstrates that Reclaimed Water does not
meet the requirements of the Power Plant Water Quality Standards.
• The Town shall deliver Reclaimed Water to the Point of Delivery at 45 psig or greater.
Any additional pumping equipment or modifications to existing WPCF pumps required
to increase delivery pressure at the Point of Delivery shall be purchased by Generator and
installed by Town as part of the construction of the Purple Line. The cost of such
installation by the Town shall be a Purple Line Cost.
• All metering facilities installed at the Point of Delivery are and shall remain the property
of the Town. The Town shall operate and maintain all Reclaimed Water metering
facilities, including periodic testing thereof; and whenever it determines that replacement
of any metering facility is required, it shall install, operate and maintain such
replacement/new metering facility as may be reasonably required in terms or then current
waterworks industry standards for accuracy so as to insure accurate measurement of the
quantities of Reclaimed Water delivered by the Town to Generator. If Generator has
reason to believe that any metering facility is defective or inaccurate, it shall notify Town
of such believe and the reasons therefor. Town shall test such metering facility at its own
expense. If such testing does not meet the agreed tolerances set forth in the Operation &
Maintenance Process, then Town will repair or replace such facility to Generator's
reasonable satisfaction, and adjust Generator's invoices for half the period beginning at
later of installation or any prior test up to the date the metering facility is repaired or
replaced.
• Generator shall own, operate, and maintain the Generator System (the Town System and
the Generator System, collectively, comprise the Reclaimed Water System).
• Generator shall provide a positive check-valve between the Reclaimed Water System and
any other non-potable water source(s). Generator will provide written notification to the
Town identifying any other source, including any and all wells or surface water bodies,
connected to the Generator System.
• The Town and Generator shall create an Operations Committee, which shall meet
periodically, but not less than quarterly, to address the operation of the Reclaimed Water
System, discuss any planned outages at the WPCF or the Power Plant, and consider such
other matters that may affect the delivery and receipt of Reclaimed Water. Any decisions
of the Operations Committee shall not constitute an amendment to this Agreement, and
any amendments shall be made in accordance with Section 29.
Page 31 of 31
PRESENTED October 22, 2013
RESOLUTION NO. ADOPTED
A RESOLUTION: AUTHORIZING THE EXECUTION OF A RECLAIMED WATER
AGREEMENT BETWEEN THE TOWN OF LEESBURG AND GREEN
ENERGY PARTNERS
WHEREAS, the Town of Leesburg (the TOWN) owns and operates a wastewater treatment
plant in Loudoun County on a 20 acre site presently owned by the Town of Leesburg; and
WHEREAS, the TOWN in the normal operations of the treatment plant creates effluent that
conforms to the water quality standards as propounded by the DEPARTMENT OF
ENVIROMENTAL QUALITY (DEQ)prior to its discharge in to the Potomac River; and
WHEREAS, GREEN ENERGY PARTNERS (GEP) and their partners have requested from
the TOWN an opportunity to purchase the effluent for the purpose of using said effluent for the
operations of its green energy plant; and
WHEREAS, the TOWN and GEP entered into an Memorandum of Understanding (MOU),
approved by Council, dated February 23, 2011 which provided the framework with respect to
negotiations for the sale and purchase of the effluent, the infrastructure that would be required for
the sale and purchase of same, and for the benefit of the public health, safety, welfare, environment
and the utility enterprise fund and its customers; and
WHEREAS, the parties over the past two and a half years have come to an agreement that
provides for the sale and purchase of the effluent, the construction of the infrastructure (also known
as the purple line and it facilities), and all terms and conditions as set forth in the attached
agreement; and
WHEREAS, there will be no negative impact on operation of the Town's water or waste
water treatment plants; and
- 2 -
A RESOLUTION: AUTHORIZING THE EXECUTION OF A RECLAIMED WATER
AGREEMENT BETWEEN THE TOWN OF LEESBURG AND GREEN
ENERGY PARTNERS
WHEREAS, the Town may negotiate such additional terms, conditions and additional
consideration with Loudoun Water in exchange for acknowledgment that the TOWN is the provider
of conforming reclaimed water to GEP.
THEREFORE, RESOLVED, by the Council of the Town of Leesburg, Virginia that the
agreement is approved in all its particulars and the appropriate members of staff and Council are
hereby authorized to execute the attached agreement.
PASSED this day of 2013.
Kristen C. Umstattd, Mayor
Town of Leesburg
ATTEST:
Clerk of Council
The Town of
Leesburg,
Virginia
PRESENTED October 22.2013
RESOLUTION NO. 2013-126 ADOPTED October 22.2013
A RESOLUTION: AUTHORIZING THE EXECUTION OF A RECLAIMED WATER
AGREEMENT BETWEEN THE TOWN OF LEESBURG AND GREEN
ENERGY PARTNERS
WHEREAS,the Town of Leesburg(the TOWN)owns and operates a wastewater treatment
plant in Loudoun County on a 20 acre site presently owned by the Town of Leesburg;and
WHEREAS,the TOWN in the normal operations of the treatment plant creates effluent that
conforms to the water quality standards as propounded by the DEPARTMENT OF
ENVIROMENTAL QUALITY(DEQ)prior to its discharge in to the Potomac River;and
WHEREAS,GREEN ENERGY PARTNERS(GEP)and their partners have requested from
the TOWN an opportunity to purchase the effluent for the purpose of using said effluent for the
operations of its green energy plant;and
WHEREAS,the TOWN and GEP entered into an Memorandum of Understanding(MOU),
approved by Council, dated February 23, 2011 which provided the framework with respect to
negotiations for the sale and purchase of the effluent,the infrastructure that would be required for
the sale and purchase of same,and for the benefit of the public health,safety,welfare,environment
and the utility enterprise fund and its customers;and
WHEREAS,the parties over the past two and a half years have come to an agreement that
provides for the sale and purchase of the effluent,the construction of the infrastructure(also known
as the purple line and it facilities), and all terms and conditions as set forth in the attached
agreement;and
WHEREAS, there will be no negative impact on operation of the Town's water or
wastewater treatment plants;and
-2-
A RESOLUTION: AUTHORIZING THE EXECUTION OF A RECLAIMED WATER
AGREEMENT BETWEEN THE TOWN OF LEESBURG AND GREEN
ENERGY PARTNERS
WHEREAS, the Town may negotiate such additional terms, conditions and additional
consideration with Loudoun Water in exchange for acknowledgment that the TOWN is the provider
of conforming reclaimed water to GEP.
THEREFORE, RESOLVED, by the Council of the Town of Leesburg, Virginia that the
agreement is approved in all its particulars and the appropriate members of staff and Council are
hereby authorized to execute the attached agreement.
PASSED this 22nd day of October,2013.
C. mstattd,Mayor
Town of Leesburg
A,14 : 40
Clerk of Counc V
P:\Reaolutian\2013\1022 GEP Reclaimed Water Agrecmemdoc
IN WITNESS WHEREOF, the parties hereto have set their hands and seals on the date
first above written.
TOWN OF LEESBURG
By: *7L3 U?iJlF}---
Name: VT-pL,\ \,,)e.AtS
Title: J nw,J NAI
Date: (��/,3/ 3
GREEN ENERGY PARTNERS/STONEWALL LLC
By:
Ali-
Name: /5 oSS / 'l l E gSk
Title: ll€VLLoPP1 /J r N 667.
Date: /0/0) ///3
Page 23 of 31