2015/03/18 Council Agenda Packet

2 (2) Temporary Everett Use. Everett shall preserve District Capacity Rights in the Everett Capacity Facilities. Everett,upon obtaining the District's prior written approval, may temporarily use the District's unused capacity in the Everett Capacity Facilities as necessary for Everett sewer system operation,maintenance, and management. (3) Full Capacity Indemnity. In addition to any other indemnity or defense obligation that Everett may have under this Agreement, Everett shall indemnify and defend District and its officers, employees and agents from and against any and all Claims arising from or relating to the circumstance where the District has sewage to deliver to the Everett sewer system and has District Capacity Rights for such sewage,but the District is unable to deliver the sewage because an Everett Capacity Facility has insufficient capacity. However, the District shall take reasonable actions to mitigate the effect of such a circumstance. E. District Non-Use of District Capacity Rights/Use of Other Utility. The District has no obligation under this Agreement to deliver sewage to Everett or to use the District Capacity Rights (and the District may choose, after notification to Everett, to serve portions of the District's Everett Sewer Basin by delivering sewage to a utility other than Everett), but failure to use District Capacity Rights will not cause any refund of any payment made under Section 5.A or Section 4.0 (2) (b) and will not cause refund or alteration of any payments due under Section S.B. Notwithstanding the foregoing,the District shall not enter into any contract that would obligate sending sewage from within Everett's UGA, as it exists as of the Effective Date of this Agreement as identified on Exhibit A,to an entity other than Everett. F. District Sale of District Capacity Rights. The District may sell all or a portion of the District Capacity Rights to a buyer(a "Capacity Buyer"), subject to the following conditions: (1) The Capacity Buyer's sewer service area is within Snohomish County. (2) The Capacity Buyer is an entity with a sewer agreement with Everett, is a city, or is a special purpose district organized pursuant to Titles 35, 35A, 54 or Title 57 RCW. (3) The District is not in default under this Agreement and is current on all payments to Everett required under this Agreement. (4) The Capacity Buyer is not in default under any payment obligation required by any agreement with Everett. (5) The District, the Capacity Buyer, and Everett execute an assignment and assumption agreement in a form reasonably acceptable to Everett, under which the Capacity Buyer assumes all of District's rights, obligations and limitations under this Agreement with respect to the portion of District Capacity Rights being sold and with respect to the sewage that the Capacity Buyer will discharge into the Everett sewer system pursuant to the District 10 19