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HomeMy WebLinkAbout02081 - RIVERSIDE COUNTY PURCHASE THERMAL ENERGY County of Riverside - purchase of thermal energy from City of Palm Springs AGREEMENT #2081, 5-7-84 Minute Order 3398, 5-16-84 AGREEMENT TO PURCHASE AND SELL THERMAL ENERGY BETWEEN THE CITY OF PALM SPRINGS, CALIFORNIA AND THE COUNTY OF RIVERSIDE, CALIFORNIA AGREEMENT TO PURCHASE AND SELL THERMAL ENERGY This Agreement to Purchase and Sell Thermal Energy ("Agree- ment") , is made as of this day of , 1984 , by and between the CITY OF PALM SPRINGS, CALIFORNIA ("Palm Springs" ) , and the COUNTY OF RIVERSIDE, CALIFORNIA ("Riverside") . Palm Springs intends to construct or to cause the construc- tion of a Cogeneration Facility .for the production of, among other things, Thermal Energy. Palm Springs and Riverside now desire to agree with respect to the sale by Palm Springs to Riverside of a portion of the Thermal Energy to be produced in the Municipal Complex: Cogenera- tion Facility for use in heating and cooling the Riverside County Administrative Center located in Palm Springs, California. NOW, THEREFORE, for full and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the par- ties agree as follows : --z-- Article I Agreement To Sell And Purchase Thermal Energy 1 . 1 In consideration of the mutual promises and covenants hereinafter set forth, Palm Springs hereby agrees to sell and Riverside hereby agrees to purchase Thermal Energy in accordance with and subject to the terms and conditions set forth in this Agreement. Article II Definitions When used with initial capitalizations, the following terms shall have the following meanings : 2 . 1 "Billing Period" : A period of approximately one month which may consist of between 28 and 33 consecutive days (except in the case of February which may consist of as few as 26 days) for which Palm Springs shall measure or estimate Riverside ' s Thermal Energy utilization in accordance with this Agreement. 2 . 2 "Btu" : British Thermal Unit. 2. 3 "Chilled Water" : The water delivered by Palm Springs to Riverside at the Point of Delivery for use by Riverside in cooling the County Building. 2 . 4 "Chilled Water Charge" : The charge to be paid by Riverside for Thermal Energy utilization associated with Chilled -3- Water delivered by Palm Springs under this Agreement for use by Riverside in cooling the County Building. 2 . 5 "Cogeneration Facility" : The facility and equipment to be known as the Municipal Complex Cogeneration Facility that Palm Springs will construct or cause to be constructed at a location on E1 Cielo Drive in Palm Springs, California. 2. 6 "County Building" : The structure and improvements known as the Riverside County Administrative Center located on the Property. 2 . 7 "Edison" : Southern California Edison Company. 2. 8 "Edison Rate" : The published and effective energy charge per KWh under Edison' s GS-2 rate schedule, plus the pub- lished and effective demand charge per KW under Edison' s GS-2 rate schedule multiplied by two hundred (200) and divided by 56 ,560 (Riverside ' s average monthly KWh consumption during the 1982-83 fiscal year) . Expressed as a formula: Edison Rate = GS-2 Energy Charge + 200 (GS-2 Demand Charge) 56 ,560 2 . 9 "Hot Water" : The water delivered by Palm Springs to Riverside at the Point of Delivery for use by Riverside in heat- ing the County Building. 2. 10 "Hot Water Charge" : The charge to be paid by Riverside for Thermal Energy utilization associated with Hot Water delivered by Palm Springs under this Agreement for use by Riverside in heating the County Building. 2. 11 "KW" : Kilowatt. 2. 12 "KWh" : Kilowatt-hour. -4- 2 . 13 "Metering Equipment" : The meters and all necessary equipment which Palm Springs will install to measure the Thermal Energy delivered by Palm Springs and utilized by Riverside under this Agreement. 2 . 14 "Parties" : Palm Springs and Riverside. 2. 15 "Party" : Palm Springs or Riverside. 2 . 16 "Point of Delivery" : The point of interconnection between the facilities owned by Palm Springs and the facilities owned by Riverside which shall be located at a point mutually agreeable to the Parties not less than five (5) feet outside the outer wall of the County Building at which point Palm Springs shall deliver to Riverside Hot Water and Chilled Water containing Thermal Energy as contemplated by this Agreement. 2. 17 "Property" : The land and buildings thereon occupied and maintained by Riverside and located at 3255 East Tahquitz- McCallum Way, Palm Springs , California. 2 . 18 "Riverside ' s Total Requirements" : The total amount of Thermal Energy required by Riverside for heating and cooling the County Building that can be obtained from Hot Water and Chilled Water delivered through the facilities contemplated under this Agreement. 2 . 19 "Service Bill" : The statement sent by Palm Springs to Riverside after each Billing Period setting out the amounts due by Riverside to Palm Springs for Riverside ' s Thermal Energy uti- lization during such Billing Period or prior Billing Periods. 2 . 20 "SoCalGas" : Southern California Gas Company. -5- 2 . 21 "SoCalGas Rate" : The published and effective rate per Therm for the sale of natural gas under SoCalGas ' GN-2 commercial and industrial natural gas rate schedule. 2. 22 "Therm" : One hundred thousand (100 ,000) Btu' s. 2 . 23 "Thermal Energy" : The thermal energy content of Hot Water and Chilled Water which can be utilized for heating and cooling, respectively, when such Hot Water and Chilled Water are delivered by Palm Springs to Riverside through the facilities contemplated by this Agreement. Article III Term 3 . 1 This Agreement shall become effective upon execution by the Parties and shall remain in full force and effect for a term of twenty (20) years , after which this Agreement shall continue to remain in full force and effect unless or until terminated by either Party upon twelve (12) months prior written notice to the other Party. 3 .2 Notwithstanding the above, Riverside shall have the right at any time following the passage of five (5) years from the date of execution of this Agreement, to terminate this Agree- ment upon twelve (12) months prior written notice to Palm Springs if, and only if, either of the following two conditions have been met: -6- (a) Riverside has permanently vacated the County Building and the Property. (b) Riverside has determined in the reasonable exer- cise of its judgment that a better alternative energy resource is available in order to provide the energy necessary to replace the Thermal Energy that is the subject of this Agreement and has rea- sonably demonstrated to Palm Springs that such energy is actually available to Riverside and can be obtained at a lower cost than the Thermal Energy provided by Palm Springs under this Agreement. If Riverside seeks to terminate this Agreement under this Sub- paragraph 3 . 2 (b) , Riverside shall provide to Palm Springs, con- currently with its written notice of intent to terminate this Agreement, an analysis sufficient to demonstrate reasonably that energy actually available to Riverside from the alternative energy resource can be obtained at a lower cost than the Thermal Energy provided by Palm Springs under this Agreement. Within ninety (90) days of the date Riverside provides such analysis to Palm Springs, Palm Springs shall have a right of first refusal under which Palm Springs shall have the right to continue the sale of Thermal Energy under this Agreement at such rates that the cost of Thermal Energy to Riverside under this Agreement will not exceed the cost of energy from the alternative energy resource, and if Palm Springs exercises this right of first refusal, this Agreement shall continue in full force and effect as if Riverside had never provided a written notice of intent to terminate. If, however, upon the expiration of ninety (90) days __,- from the date Riverside provides Palm Springs with written notice of its intent to terminate this Agreement accompanied by the analysis mentioned above, Palm Springs has not agreed to sell Thermal Energy to Riverside under this Agreement at rates reasonably calculated in such a way that the cost of Thermal Energy to Riverside will not exceed the cost of energy from the alternative energy resource, Riverside shall have the right to withdraw its notice of intent to terminate and to continue to purchase Thermal Energy under this Agreement or to terminate this Agreement upon the expiration of twelve (12) months from the date written notice of Riverside ' s intent to terminate this Agreement was provided to Palm Springs under this subparagraph, and Riverside shall promptly notify Palm Springs of its intent to terminate or not to terminate this Agreement. 3 .3 Notwithstanding the above, Palm Springs shall have the right at any time following the date hereof, to terminate this Agreement upon twelve (12) months prior written notice to River- side . Article IV Contract Quantity 4 . 1 During the term of this Agreement, and subject to the other provisions hereunder, Palm Springs agrees to sell and deli- ver and Riverside agrees to take and pay for all of the Thermal Energy that Palm Springs provides to Riverside on a best efforts basis up to a maximum of Riverside' s Total Requirements. • -s- 4 . 2. Palm Springs may interrupt service under this Agreement at any time without notice to Riverside , although all reasonable efforts to inform Riverside of such interruptions in advance will be made. It is agreed and understood that Palm Springs may interrupt service under this Agreement whenever Palm Springs determines in its sole discretion that an interruption in service is necessary for any reason including, without limitation, the existence of an emergency, the necessity of scheduled or unscheduled maintenance or repair, or an interruption in the operation of the Cogeneration Facility. Palm Springs shall inform Riverside of any scheduled interruptions in service at least twenty-four (24) hours in advance. 4 . 3 Palm Springs does not guarantee continuous uninterrupted service under this Agreement, and shall not be liable for any loss, damage, claim, cost, charge or expense of any kind or nature resulting from interruptions in service whether or not Palm Springs has provided notice of such interruptions in service. No interruption in service provided by Palm Springs under this Agreement shall be deemed a breach of this Agreement, provided, however, that should an interruption of 180 calendar days or more occur, Riverside shall have the right to invoke the provisions of paragraph 3 . 2 of this Agreement notwithstanding the 5 year limitation on effectiveness as contained in that paragraph. -9- Article V Facilities To Be Constructed And Maintained 5 . 1 Palm Springs shall construct or cause to be constructed at its own expense all of the facilities necessary to deliver Thermal Energy to Riverside at the Point of Delivery. Such facilities shall remain the property of Palm Springs and shall be owned and maintained in good condition by Palm Springs at its own expense throughout the term of this Agreement. 5 . 2 Palm Springs shall construct or cause to be constructed at its own expense all of the facilities determined by Palm Springs in its sole judgment to be necessary for Riverside to accept delivery of Thermal Energy from Palm Springs at the Point of Delivery, such facilities to be of substantially equal quality and subject to the same procedures for inspection and acceptance by Palm Springs as the facilities constructed in accordance with Paragraph 5 . 1. Prior to the initiation of service under this Agreement, Riverside shall have the right to inspect such facilities and shall accept such facilities upon confirmation that they have been constructed in accordance with this Paragraph 5. 2, such acceptance not to be unreasonably withheld. Unless Riverside shall have previously notified Palm Springs in writing that Riverside is withholding its acceptance of such facilities with a detailed explanation of the reasons therefore, such facilities shall become the property of Riverside at such time as Thermal Energy is first delivered by Palm Springs to Riverside -fo- under this Agreement, and shall be owned and maintained in good condition by Riverside at its own expense throughout the term of this Agreement. If Riverside shall withhold its acceptance of such facilities by written notification to Palm Springs, such facilities shall become the property of Riverside at such time as Thermal Energy is first delivered by Palm Springs to Riverside under this Agreement, or at such time as such facilities are determined to have been constructed in accordance with this Paragraph 5 . 2 by agreement of the Parties or under the procedures of Article XVIII of this Agreement, whichever time is later, and thereafter shall be owned and maintained by Riverside at its own expense throughout the term of this Agreement. Riverside shall have the benefit with respect to these facilities of the material and labor bonds , the performance bonds, and the one-year con- struction warranty against inherent defects in design, con- struction, workmanship and materials that will be in effect for a period of one year from the date Palm Springs issues its notice of acceptance of the project which is the subject of this Agreement. 5. 3 Riverside shall grant to Palm Springs, without cost to Palm Springs, and by an instrument of conveyance acceptable to Palm Springs, any and all rights of way, easements, or other property interests , with rights of ingress and egress at all rea- sonable times, that the Parties reasonably agree are necessary to enable Palm Springs to construct and inspect the facilities described in Paragraph 5 . 2 above. -11- 5 . 4 From such time as Thermal Energy is first delivered under this Agreement and throughout the term of this Agreement, Riverside shall own the facilities between the Point of Delivery and the County Building and the facilities within the County Building, except for the Metering Equipment described below, and shall maintain such facilities in good condition at its own expense in accordance with good engineering and operating stan- dards . If at any time during the term of this Agreement, such facilities develop a condition or become in need of repair such that the integrity of the system or continued provision of ser- vice that is the subject of this Agreement may be jeopardized, Riverside shall immediately notify Palm Springs of such condition or need for repair and shall immediately undertake or cause to be undertaken at Riverside ' s own expense the repair or replacement of such facilities as may be required to restore such facilities to good condition. 5. 5 Palm Springs shall have the right to enter the Property and the County Building thereon, at all reasonable times , to inspect the facilities owned and maintained by Riverside between the Point of Delivery and the County Building and within the County Building. If Palm Springs finds , in such an inspection or otherwise, that the facilities owned by Riverside between the Point of Delivery and the County Building or within the County Building are, in Palm Springs ' sole judgment, in a condition or need of repair such that the integrity of the system that is the subject of this Agreement may be jeopardized, Palm Springs shall -12- notify Riverside of such condition or need of repair and River- side shall immediately undertake or cause to be undertaken at Riverside' s own expense the repair or replacement of such facili- ties as may be required to restore such facilities to good condi- tion. Article VI Delivery and Specifications 6. 1 The Thermal Energy to be sold by Palm Springs and pur- chased by Riverside under this Agreement shall be delivered by Palm Springs to Riverside at the Point of Delivery. 6 . 2 Palm Springs shall have no responsibility for the use, handling or action of Thermal Energy, Hot Water, or Chilled Water between the Point of Delivery and the County Building or within the County Building, nor shall Palm Springs have any liability for any matter, harm, injury, or damage of any kind or nature resulting from the use of Thermal Energy, Hot Water, or Chilled Water by Riverside or the presence of Thermal Energy, Hot Water, or Chilled Water between the Point of Delivery and the County Building or within the County Building, and in connection there- with, Riverside shall indemnify, defend, and hold harmless Palm Springs from and against any such liability. 6 . 3 Riverside shall maintain its facilities between the Point of Delivery and the County Building and within the County Building, and Palm Springs shall maintain its facilities , in such -13- a condition as to prevent contamination of Hot Water and Chilled Water. Both Palm Springs and Riverside shall take all action necessary to ensure that Hot Water and Chilled Water is not contaminated while in their respective facilities, and neither Palm Springs nor Riverside shall introduce chemicals into Hot Water or Chilled Water that could create such a chemical imbalance as could jeopardize the integrity of the system that is the subject of this Agreement. Article VII Hot Water Charge 7 . 1 Riverside ' s Thermal Energy utilization associated with Hot Water delivered under this Agreement shall be calculated by measuring the volume of Hot Water delivered by Palm Springs to Riverside and the difference between the temperature of the Hot Water when delivered by Palm Springs to Riverside and the temper- ature of the Hot Water when returned to Palm Springs by Riverside. The Metering Equipment installed in accordance with and pursuant to Article IX of this Agreement shall measure such volumes and temperatures and shall determine Riverside' s Thermal Energy utilization. 7 . 2 Riverside shall pay a Hot Water Charge equal to its Thermal Energy utilization as measured by the Metering Equipment in accordance with Paragraph 7 . 1 and expressed in Therms multi- plied by eighty-five percent (85%) of the SoCalGas Rate, and -14- divided by a boiler efficiency factor of . 70 . Expressed as a formula, Riverside shall pay a Hot Water Charge equal to: . 85 (SoCalGas Rate) (Thermal Energy utilization) . 70 7 . 3 If there is a change in the SoCalGas Rate during any Billing Period, the Hot Water Charge for such Billing Period shall be calculated by prorating the Thermal Energy utilization on the basis of the percentage of days during the Billing Period that each rate was in effect. 7 . 4 Whenever Riverside shall receive notice of any change in the rates charged for natural gas by SoCalGas , Riverside shall, within fourteen (14) days , provide notice of such a change in rates to Palm Springs sufficient to allow Palm Springs to calculate the Hot Water Charge in accordance with the provisions of this Article VII. Article VIII Chilled Water Charge 8 . 1 Riverside' s Thermal Energy utilization associated with Chilled Water delivered under this Agreement shall be calculated by measuring the volume of the Chilled Water delivered by Palm Springs to Riverside and the difference between the temperature of the Chilled Water when delivered by Palm Springs to Riverside and the temperature of the Chilled Water when returned to Palm Springs by Riverside. The Metering Equipment installed in -15- accordance with and pursuant to Article IX of this Agreement shall measure such volumes and temperatures and shall determine Riverside ' s Thermal Energy utilization. 8 . 2 Riverside shall pay a Chilled Water Charge equal to its Thermal Energy utilization as measured by the Metering Equipment in accordance with Paragraph 8 . 1 and expressed in Therms multi- plied by eighty-five percent (85%) of the Edison Rate and multi- plied by a factor of 1 . 245 KW per Ton, all divided by a combined energy conversion factor of . 12 Therms per Ton-hour. Expressed as a formula, Riverside shall pay a Chilled Water Charge equal to: . 85 (Edison Rate) (1 . 245 KW_/Ton) (Thermal Energy utilization) . 12 Therms/Ton-Hour 8. 3 If there is a change in the Edison Rate during any Billing Period, the Chilled Water Charge for such Billing Period shall be calculated by prorating the Thermal Energy utilization on the basis of the percentage of days during the Billing Period that each rate was in effect. 8 . 4 Whenever Riverside shall receive notice of any change in rates charged for electric power by Edison, Riverside shall, within fourteen (14) days , provide notice of such a change in rates to Palm Springs sufficient to allow Palm Springs to calcu- late the Chilled Water Charge in accordance with the provisions of this Article VIII . -16- Article IX Metering 9 . 1 Prior to the initiation of service under this Agree- ment, Palm Springs shall install, at its own expense , all Meter- ing Equipment necessary for the accurate measurement of the Ther- mal Energy delivered by Palm Springs and utilized by Riverside under this Agreement. The Metering Equipment shall be located in the basement of the County Building or at such other location as is mutually agreed upon by the Parties . Palm Springs shall con- tinue to own all such Metering Equipment and shall maintain such Metering Equipment in good repair and operating condition at its own expense. 9 . 2 Riverside hereby grants to Palm Springs the right to enter the Property and the County Building thereon for the pur- poses of installing, constructing, maintaining, servicing, repairing, replacing, inspecting, removing, testing, and reading such Metering Equipment and for any other purpose as may be necessary in connection with this Agreement. 9 . 3 Any electricity required for the operation, testing, or maintenance of the Metering Equipment shall be supplied by River- side at Riverside ' s expense. 9 . 4 Riverside shall promptly notify Palm Springs if at any time Riverside has reason to believe that the Metering Equipment is not accurately measuring the Thermal Energy delivered by Palm Springs and utilized by Riverside under this Agreement. -17- 9 . 5 Palm Springs shall cause such testing and calibration of the Metering Equipment as Riverside shall request, provided that the cost of any such testing and calibration shall be borne by Riverside if such testing does not disclose an inaccuracy of more than five percent (5%) in measuring Thermal Energy utiliza- tion. Upon the discovery of any such inaccuracy, the Metering Equipment shall be promptly adjusted or replaced, if necessary in Palm Springs ' sole judgment, at Palm Springs' expense. 9 . 6 At such time as this Agreement is terminated or ceases to be effective, Palm Springs shall have the right, at Palm Springs ' sole option, to enter the Property and the County Build- ing thereon and to remove the Metering Equipment or any portion thereof from the County Building and the Property or to abandon the Metering Equipment or any portion thereof in place. If Palm Springs choses to exercise its option under this Paragraph 9 . 6 to remove the Metering Equipment or any portion thereof, Palm Springs shall so notify Riverside within one hundred eighty (180) days of the date this Agreement is terminated or ceases to be effective, and Riverside shall allow entry to the County Building and the Property at all reasonable times for Palm Springs to remove or cause the removal of such Metering Equipment or any portion thereof. Palm Springs ' rights under this Paragraph 9 . 6 shall survive the termination or expiration of this Agreement. -18- Article X Billing and Payment 10 . 1 Unless Riverside is otherwise notified by Palm Springs , the Metering Equipment shall be read to determine River- side' s Thermal Energy utilization at least once each Billing Period. 10 . 2 Palm Springs shall, following the end of a Billing Period, send to Riverside a Service Bill setting forth the amount due by Riverside to Palm Springs hereunder for such Billing Period. 10 . 3 Palm Springs shall have the right, upon notice to Riverside, to estimate Riverside ' s utilization of Thermal Energy during any Billing Period and to submit to Riverside a Service Bill based on such estimate, provided that at least quarterly, Palm Springs shall read the Metering Equipment and thereafter appropriately credit or charge Riverside for the Thermal Energy it actually utilized in comparison with the previously estimated utilization which was billed to and paid by Riverside . 10 . 4 If the Hot Water Charge or the Chilled Water Charge for any Billing Period is incorrectly calculated because a change in the SoCalGas Rate or the Edison Rate is not reflected in the calculation of such Hot Water Charge or Chilled Water Charge, Palm Springs shall recalculate such Hot Water Charge or Chilled Water Charge and shall include a charge or credit in the next Service Bill to reflect the amount of any increase or decrease, as appropriate, from the amount previously billed by Palm Springs and paid by Riverside. e1o_ 10 .5 Each Service Bill shall be due and payable upon receipt by Riverside. In the event that Riverside does not pay a Service Bill in full within twenty (20) days of the date of such Service Bill, Riverside shall pay, in addition to the amount due under the Service Bill, a late charge equal to ten percent (100) of the amount due under such Service Bill. Article XI Indemnification 11 . 1 Each Party shall indemnify, defend, and hold harmless the other Party, its officials, employees, agents, and assigns from and against any loss, damage, claim, cost, charge, or expense of any kind or nature (including direct, indirect or consequential loss, damage, claim, cost, charge, or expense) , including, without limitation, attorney' s fees and other costs of litigation incurred by the other Party in connection with the injury to or death of any person or damage to property of a third party arising out of the indemnifying Party' s construction, engineering, repair, supervision, inspection, testing, protection, operation, maintenance, replacement, reconstruction, use, or ownership of its facilities, to the extent that such loss , damage, claim, cost, charge , or expense is caused by the negligence of the indemnifying Party, its officials , employees, agents , assigns , or any person or entity whose negligence would be imputed to the indemnifying Party; provided, however, that -20- each Party shall be solely responsible for and shall bear all costs of claims brought by its contractors or its own officials, employees , agents or assigns and shall indemnify, defend, and hold harmless the other Party for any and all such costs including costs arising out of any workers compensation law. 11 . 2 No provisions of this Agreement shall be construed so as to relieve any insurer of its obligations to pay any insurance claims in accordance with the provisions of any valid insurance policy. Article XII Uncontrollable Forces 12. 1 Neither Party hereto shall be considered to be in default in the performance of any or all of the covenants con- tained herein, except for obligations to pay money, if such Party has complied with the provisions of Paragraph 12 . 2, when and to the extent that the failure of such performance shall be caused by an Uncontrollable Force. An Uncontrollable Force is any occurrence beyond the control of a Party which causes that Party to be unable to perform its obligations hereunder, and which such Party has been unable to overcome by the exercise of due diligence, including, without limitation, flood, drought, earthquake, storm, fire, pestilence, lightning and other natural catastrophes, epidemic, war, riot, civil disturbance or disobe- dience , strike, labor dispute, action or inaction of government • -21- or other proper authority, or failure, threat of failure or sabo- tage of facilities which have been maintained in accordance with good engineering and operating practices in California. 12 . 2 A Party may be excused in whole or in part from performance under this Agreement in accordance with Paragraph 12 . 1 only if: (1) the non-performing Party, within two weeks after the occurrence of the Uncontrollable Force, gives the other Party written notice describing the par- ticulars of the occurrence, (2) the suspension of performance is of no greater scope and of no longer duration than is required by the Uncontrollable Force, (3) the non-performing Party uses its best efforts to remedy its inability to perform (this subsection shall not require the settlement of any strike, walkout, lockout, or other labor dispute on terms which, in the sole judgment of the Party involved in the dispute, are contrary to its interest. It is understood and agreed that the settlement of strikes, walkouts, lockouts, or other labor dis- putes shall be at the sole discretion of the Party having the difficulty) , and (4) when the non-performing Party is able to resume performance of its obligations under this -22- Agreement, that Party shall give the other Party written notice to that effect. 12 . 3 In the event that either Party' s ability to perform cannot be corrected when the Uncontrollable Force is caused by the actions or inactions of legislative, judicial or regulatory agencies or other proper authority, this Agreement may be amended to comply with the legal or regulatory change which caused the nonperformance. Article XIII Notices 13 . 1 All notices and correspondence pertaining to this Agreement shall be in writing and shall be sufficient if delivered in person or sent by certified mail, postage prepaid and return receipt requested, to the following addresses: Palm Springs: Energy Coordinator City of Palm Springs Post Office Box 1786 Palm Springs , California 92263 Riverside: Chief Administrative Officer Riverside County Administrative Center 4080 Lemon Street Riverside , California 92501 13 . 2 All notices sent pursuant to this Article XIII shall be effective when received. Each Party shall be entitled to receive notices and other correspondence at a changed address upon written notice of the change of address being sent to and received by the other Party. -23- Article XIV Entire Agreement 14. 1 This Agreement supersedes any prior agreement, oral or written, and contains the entire agreement between the Parties hereto with respect to the subject matter hereof. No subsequent agreement, representation or promise made by or to any Party or by or to any employee, agent, or representative of any Party, shall be of any effect unless it is in writing and signed by the Party to be bound thereby. Article XV Further Assurances 15 . 1 Each Party agrees , without any additional considera- tion, to execute such other and further documents , and to perform such other and further acts, as may be necessary or appropriate in order to consummate the transactions contemplated by this Agreement. Article XVI Construction 16 . 1 This Agreement shall be construed as a whole and in accordance with its fair meaning. Captions and organization are -24- for convenience only, and shall not be used in construing meaning. Article XVII No Waiver 17 . 1 The waiver by either Party of the performance of any covenant, condition, or promise shall not invalidate this Agree- ment, nor shall it be construed as a waiver of any other covenant, condition or promise. The waiver by either Party of the time for performing any act shall not be considered a waiver of the time for performing any other act or an identical act required to be performed at a later time. Article XVIII Disputes 18 . 1 Any dispute arising between the Parties concerning the interpretation of the provisions of this Agreement or the perfor- mance of the Parties hereunder, which is not otherwise settled between the Parties, shall be submitted to binding arbitration in Riverside County, California, according to the rules and practi- ces of the American Arbitration Association as outstanding from time to time. This agreement to arbitrate shall be specifically enforceable, and shall be the exclusive remedy for the enforce- ment of the terms and provisions of this Agreement, and for the -25- resolution of all disputes under this Agreement including, with- out limitation, all questions relating to the breach of any obli- gation, covenant or agreement hereunder, and all questions relat- ing to the construction and interpretation of the provisions of this Agreement, all questions relating to any alleged represen- tations , negotiations, and other proceedings leading to the exe- cution of this Agreement, all modifications of this Agreement of any nature and description, all questions relating to the failure of either Party to deny or to reject a claim or demand of another Party, and all questions as to whether the right to arbitrate any question exists or as to the existence of an agreement to arbi- trate. 18 . 2 An arbitration panel, consisting of three (3) arbitra- tors , shall be chosen in accordance with the rules and practices of the American Arbitration Association from lists of attorneys , accountants or retired judges. 18 . 3 A decision agreed on by two (2) of the arbitrators shall be the decision of the arbitration panel. Any decision shall include costs and attorneys ' fees to the "Prevailing Party" , as such term is defined in Paragraph 19 . 1 hereof. Such decisions shall be final and binding on all Parties, and there shall be no appeal therefrom other than for fraud or misconduct. The Parties hereby agree to abide by all decisions and awards rendered in such arbitration proceedings. 18 . 4 All awards may be filed with the clerk of one or more courts, state or federal, having jurisdiction over the Party -26- against whom such an award is rendered, or the Party' s property, as a basis of judgment and of the issuance of execution for its collection. 18 . 5 The Parties agree that this Agreement shall not con- stitute a waiver of either Party' s right to any remedy which may be enforced through arbitration, including, without limitation, injunctive relief or specific performance. Article XIX Attorneys ' Fees 19. 1 In the event suit or arbitration is brought to enforce or interpret any part of this Agreement, the Prevailing Party shall be entitled to recover as an element of his costs of suit or arbitration, and not as damages , reasonable attorney' s fees to be fixed by the court or arbitration panel. The "Prevailing Party" shall be the Party who is entitled to recover his cost of suit or arbitration, as the case may be, whether or not the suit or arbitration proceeds to final judgment. A Party not entitled to recover his costs shall not recover attorneys ' fees. No sum for attorneys ' fees shall be counted in calculating the amount of a judgment or award for purposes of determining whether a Party is entitled to recover his costs or attorney' s fees. -27- Article XX Counterparts 20 . 1 This agreement may be executed in any number of coun- terparts, all of which, taken together, shall constitute one and the same instrument, and any of the Parties hereto may execute this Agreement by signing any such counterpart. Article XXI Amendment 21 . 1 This Agreement may be amended only in writing, and signed by the Parties hereto. Article XXII Governing Law 22 . 1 This Agreement shall be governed by and construed in accordance with the laws of the state of California. ' ' r -28- IN WITNESS WHEREOF, this Agreement is executed as of the day and date first above written. CITY OF PALM SPRINGS Its : r'f?f#fl4llfl fit. I.9NG GHY MANAUER COUN;2zz�z� F RIVERL44n,-2 APPROVED AS TO FORM By: � ItS: �aGE61@V2f!e9,�N OF YNE BOARD OF SUPER°MORb City Attorney 6'.TTE3T': -y�'�u�; ? 4 9911 GF P,LD A. N1,°,LONEY, Uerk Date ) t, ✓ +, r Y' Ui���r 3�.