2015/03/18 Council Agenda Packet

2 Everett will calculate the amount of the charge using the methodology set forth on Exhibit D attached to this Agreement. In order to exercise this option, Everett shall deliver notice to the District. The District shall pay the charge by the later of(i) the date when the District first uses the additional District Capacity Rights or (ii) thirty (30) days after delivery of the notice to the District. The District acknowledges and agrees that the purchase of additional District Capacity Rights will cause an increase in the District's share of capital costs, as calculated in accordance with Section 5.B of this Agreement. (c) Facility Improvement. Everett may re-size,re-design,re-construct or otherwise improve or expand or replace the Everett Capacity Facilities so that the Everett Capacity Facilities can serve the additional capacity required by the District. The District shall pay to Everett all Construction and Design Costs incurred by Everett for the improvement of the Everett Capacity Facilities, except for the portion of the Construction and Design Costs attributable to the capacity requirements of entities other than District. The District shall pay its portion of the Construction and Design Costs in accordance with the procedures for the payment of capital costs under Section 5.B (2)(d)of this Agreement. (d) Refusal to Accept Sewage. Everett may refuse to accept District sewage flows in excess of District Capacity Rights. (3) Excess Flow Indemnity. In addition to any other indemnity or defense obligation that the District may have under this Agreement, the District shall indemnify and defend Everett and its officers, employees and agents, from and against any and all Claims arising from or relating to discharge of any sewage by District into the Everett sewer system in excess of District Capacity Rights. However, Everett shall take reasonable actions to mitigate • the effect of discharge of sewage by District into the Everett sewer system in excess of District Capacity Rights. • D. Everett Capacity Facilities Insufcient for District Capacity Rights 11) Remedial Measures. Everett shall begin remedial measures no later than thirty (30) days after the District gives Everett notice that there exists a reasonable projection that, within the three (3) years after the delivery date of the notice,the District will have sewage to deliver to the Everett sewer system and the District has District Capacity Rights for such sewage, but the District will be unable to deliver the sewage because an Everett Capacity Facility will have insufficient capacity. Unless otherwise agreed in writing by Everett and the District, Everett's remedial measures to cure such insufficient capacity must include one or both of the following: (i) Discharge Reduction. At Everett's sole expense, Everett shall take reasonable steps to reduce discharge into the Everett sewer system from persons other than the District to create the capacity to partially or fully satisfy the District's Capacity Rights. (ii) Improvement of Facilities. At Everett's sole expense, Everett shall re-size, re-design, re-construct or otherwise improve or expand the Everett Capacity facility. 9 18