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HomeMy WebLinkAboutA5290 - SO CAL EDISON DISPUTE RELEASE CO-GEN POWER SELL BACK This agreement contains a non-disclosure clause . Do not release without City Clerk/City Attorney consent. Southern California Edison Dispute Release AGREEMENT #A5290 CM signed, 4-28-06 RELEASE —_----. -- —_. .--_. This RELEASE (this "Release"), dated effective as of April, 2006 (the "Effective Date"), is entered into by and between the City of Palm Springs (the City), a California governmental entity and Southern California Edison Company ("SCE"), a California corporation, (jointly, the "Parties" and individually a "Party"). RECITALS WHEREAS, SCE provides certain electrical services for the City's facility located at 3200 Tahquitz Canyon Way, Palm Springs, California, known as Service Account number 3-001- 1635-73 (the"SCE Services"); WHEREAS, SCE and the City are parties to an electric power purchase agreement (SCE QFID 2040) (the "Qualifying Facility Agreement")pursuant to which the City sells to SCE electric power generated by a City-operated cogeneration facility under the Public Utility Regulatory Policies Act, as implemented by the State of California: WHEREAS, there is a dispute between the City and SCE over payment for the SCE Services and power purchase payments under the Qualifying Facility Agreement due to a meter constant error for the period commencing July 1, 1999 and ending on July 1, 2005 (the "Period'); and WHEREAS, the Parties desire to fully resolve and settle the foregoing dispute on the terns set forth herein. STATEMENT OF AGREEMENT NOW,THEREFORE, in consideration of the payment and releases provided for below and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree and stipulate to this Release as follows: 1. Release(s). As of the Effective Date and subject to SCE's receipt of the Release Amount provided for in Section 2 below, and except as otherwise provided in this Release, the Parties, on behalf of themselves and their respective predecessors, successors and assigns, each hereby release and discharge the other Patty and each of its respective principals, agents, representatives, attorneys, stockholders, members, partners, officers, directors, employees, subsidiaries,parent and affiliated corporations, successors, heirs, executors, grantees, transferees, and assigns from any and all claims, causes of action, rights, liabilities, damages, costs and obligations, whether known or unknown, arising from, concerning, or pertaining to (i) metering associated with the provision of the SCE Services and SCE payments under the Qualifying Facility Agreement for the Period, (ii) SCE's biillings to the City for SCE Services during the Period, (iii) SCE's payments to the City under the Qualifying Facility Agreement during the Period, and/or(iv) the City's obligation to make payment for the SCE Services for the Period. Law-#1273177 1 1.1. Unlurown Claims; Different Facts. The Parties acknowledge that they are fully familiar with the facts and assumptions giving rise to this Release, but agree that this Release shall remain fully effective and binding as to each of them even if the facts or assumptions turn out to be different from what they now believe them to be. In addition, as to the matters expressly released herein, the City and SCE expressly waive the application of California Civil Code Section 1542, which reads as follows: "A general release does not extend to claims which the creditor does not laiow or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Notwithstanding this waiver of California Civil Code Section 1542, the Parties each acknowledge that the mutual releases in this Section 1 are specific to the matters set forth in the releases and are not intended to create general releases as to all claims, or potential claims, between the Parties based on matters other than those specified in the releases. Notwithstanding the foregoing or anything else to the contrary in this Release, the mutual releases in this Section 1 shall not apply to or foreclose any billing adjustments, surcharges, or rate changes that are required by law or regulatory mandate enacted or issued subsequent to the Effective Date of this Release and which are applicable to all customers or a class of customers. 2. Release Payment. The City shall pay to SCE the sum of$244,702.51 (the "Release Amount), which Release Amount, when paid, shall be deemed full payment for the provision of the SCE Services to the City during the Period for service account 3-001-1635-73. The Release Amount shall be paid over a 36 month period consisting of 35 monthly installment payments of$6797.29 and one installment of$6797.36. Beginning in July 2006, the City shall pay the first installment of$6797.29. Noncompliance with this payment arrangement will result in a default, upon which, the unpaid balance of the Release Amount will be due and payable immediately. 3. Energy Conservation. The City agrees to work cooperatively with SCE toward achievement of cost savings through the implementation of energy conservation measures and energy best practices. 2 4. Persons Designated to Receive Notices. (a) Representatives and Addresses. All notices required or permitted under this Release shall be in writing, and shall be delivered in person or sent by certified mail, postage prepaid,by overnight delivery, or by electronic facsimile transmission with an original sent immediately thereafter by postage prepaid mail, and properly addressed as follows: SCE: The City: Lin Juniper, Region Manager Troy L. Butzlaff,Assistant City Manager Southern California Edison Company City of Palm Springs 36100 Cathedral Canyon Dr. 3200 E. Tahquitz Canyon Way Cathedral City, CA 92234 Palm Springs, CA 92263-2743 Telephone: (760) 202-4231 Telephone: (760) 322-8336 Facsimile: (760) 202-4136 Facsimile: (760) 323-8207 (b) Changed Representatives and Addresses. A Party may change its representative or address upon written notice to the other Party. 5. No Admissions. The Parties agree that this Release does not constitute an admission by either Party of any violation of state or local law, ordinance or regulation, or of any violation of SCE's policies, procedures, or tariffs, or of any liability or wrongdoing whatsoever. This Release shall not be admissible in any proceeding as evidence of liability or wrongdoing by either Party, but may be introduced in any proceeding to enforce the Release. 6. Governing Law. This Release will be governed by and construed and enforced in accordance with the internal laws of the State of California applicable to contracts made and to be performed entirely within California, without regard to its conflict of law principles. 7. Entire Agreement; Drafting of Agreement;Amendments. This Release embodies the entire understanding between the Parties hereto concerning matters addressed in this Release and supersedes all prior agreements and understandings, whether oral or written, express or implied, between the Parties with respect to the subject matter contained herein. The Parties acknowledge that each of them has fully participated in the preparation of this Release, which shall be deemed the mutual product of the Parties, and therefore no ambiguity shall be construed in favor of or against either of the Parties on the basis that either of the Parties was responsible for the ambiguity. This Release may not be amended except in a writing executed by both Parties. 8. Successors and Assigns. This Release shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. 9. Representations. The Parties hereto, and, if applicable, their undersigned agents, warrant and represent that they have read this Release; that they have conferred with their attorneys concerning this Release and the terms and conditions thereof, that they fully understand the terns, conditions, requirements and effect of this Release; and that they have not previously assigned, or purported to assign,by operation of law or otherwise, any claim that is the subject of the mutual releases set forth in Section 1 herein. Each of the Parties, and, if 3 applicable, their undersigned agents, warrant and represent that the person signing this Release on its behalf have full power and/or authority to bind the Party to all terms of this Release. 10, Counterparts and Effective Date. This Release may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement, and shall be effective as of the Effective Date when it has been executed by both Parties. Facsimiles of the signatures by the Parties' designated representatives shall be deemed the equivalent of original signatures for all purposes. 11. Nondisclosure. Subject to the provisions provided below, the Parties agree to 1.eep the teens of this Release confidential. The City agrees to designate this Release as confidential and/or proprietary and agrees that it will not publish the Release or the terns of the Release in any press release, newsletter, or other written form for dissemination to the public. The Parties recognize that this Release is a public record subject to the provisions of the California Public Records Act (Govermneut Code Section 6250 et seq.) and may be disclosable to the public. In the event a request for disclosure of the Release is made, the City will promptly notify SCE in writing of such request. SCE may then pursue, at its sole cost and expense, all appropriate legal action necessary to maintain the confidentiality of the Release. hi the event SCE does not initiate such action within ten days of receiving notice of the request for disclosure of the Release, the City may disclose the Release to the requestor and the provisions of this section of the Release shall be null and void and no longer enforceable against either of the Parties. The Parties further recognize that SCE is a public utility and is subject to the regulatory authority of the California Public Utilities Commission (CPUC). California Public Utilities Code Section 314 provides, in pertinent part: (a) The commission, each commissioner, and each officer and person employed by the commission may, at any time, inspect the accounts, books,papers, and documents of any public utility. Accordingly, SCE may be required to disclose the terns of the Release to the CPUC. If so, SCE shall request confidential treatment by the CPUC under California Public Utilities Code Section 583, which provides: "No information furnished to the commission by a public utility, or any business which is a subsidiary or affiliate of a public utility, or a corporation which holds a controlling interest in a public utility, except those matters specifically required to be open to public inspection by this part, shall be open to public inspection or made public except on order of the commission, or by the commission or a commissioner in the course of a hearing or proceeding. 4ny present or former officer or employee of the commission who divulges any such information is guilty of a misdemeanor. " If the CPUC requests disclosure of the Release, SCE shall promptly notify the City of such request. 4 IN WITNESS WHEREOF, the Parties hereto have caused this Release to be executed as of the date written below. THE CITY OF PALM SPRINGS By. Name Da1vid H . Ready Title: City Manager Date: 4/28/2006 SOUTHERN CALIFORNIA EDISON COMPANY Ely: Name: S zr�; svo Title: /c,C— Date: p/ APPROV AS TO FORM: By: Title: 5