R20-013 RESOLUTION NO. R20-013
A RESOLUTION OF THE CITY OF BOYNTON BEACH,
FLORIDA, APPROVING THE STANDARD FORM OF
AGREEMENT FOR CONNECTION TO THE DISTRICT
ENERGY SYSTEM (DES) AND AUTHORIZING THE
SIGNING ON BEHALF OF THE CITY;AND PROVIDING
AN EFFECTIVE DATE.
WHEREAS, the District Energy System has been constructed to provide cooling water
for HVAC needs for three new City buildings and several planned private developments; and
WHEREAS, each user will be required to sign an Agreement that allows them to
• reserve capacity at the DES and in turn the Utility will provide certain guarantees to meet that
• demand; and
WHEREAS,this step will enable the DES to become a fully operational entity and for
. both the City and private customers to plan their HVAC needs with a clear understanding of
the financial structure surrounding the design and investment in the necessary equipment.
NOW,THEREFORE,BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA,THAT:
Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
•: being true and correct and are hereby made a specific part of this Resolution upon adoption
hereof.
•• Section 2. The City Commission does hereby approve the standard form of
•• Agreement, a copy of which is attached hereto as Exhibit "A", for connection to the District
Energy System and authorizes the City Manager to sign the Agreements on behalf of the City.
S:\CA\RESO\Agreements\District Energy System(DES)Agreements(Chilled Water Service)-Reso.Docx
30 Section 3. This Resolution and fee schedule shall take effect immediately upon
31 passage. q--
32 PASSED AND ADOPTED this 0 F-"day of January, 2020.
33 CITY OF BOYNTON BEACH, FLORIDA
34
35 YES NO
36
37 Mayor—Steven B. Grant I/
38
39 Vice Mayor—Justin Katz 1/-
40 40
41 Commissioner—Mack McCray ✓
42
43 Commissioner—Christina L. Romelus ,/
44
45 Commissioner—Ty Penserga +✓
46
47
48 VOTE ��
49
50 ATTEST:
51
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54 C stal Gibson, MMC
55 City Clerk
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S:\CA\RESO\Agreements\District Energy System(DES)Agreements(Chilled Water Service)-Reso.Docx
CHILLED WATER SERVICE AGREEMENT
BETWEEN
THE CITY OF BOYNTON BEACH
AND
FOR THE
(003468773 306-9001821)
TABLE OF CONTENTS
SECTION PAGE
1 DEFINITIONS 1
2 SERVICE 3
3 TERM 8
4 INITIAL DEPOSIT, RATES, AND CHARGES FOR SERVICE 8
5 BILLING 8
6 METERING 9
7 PERMITS, EASEMENTS AND REGULATORY AUTHORITY 10
8 WARRANTIES AND REPRESENTATIONS 12
9 LIMITATION OF LIABILITY 12
10 INDEMNIFICATION 13
11 SUSPENSION OF SERVICE 13
12 TERMINATION 14
13 INSURANCE 16
14 FORCE MAJEURE 17
15 PLEDGE OR ASSIGNMENT 17
16 DISPUTE RESOLUTION 18
17 NOTICES 18
18 OTHER PROVISIONS 19
EXHIBITS
EXHIBIT A CONTRACT CAPACITY AND SERVICE SPECIFICATIONS 22
EXHIBIT B CHARGES AND FEES FOR SERVICE 23
- d�3
CHILLED WATER SERVICE AGREEMENT
THIS CHILLED WATER SERVICE AGREEMENT ("Agreement") is entered into this
day of 20_, and is by and between the City of Boynton Beach ("City" or
"Supplier"), located at 124 East Woolbright Road, Boynton Beach, Florida 33435, and
, a corporation organized
and existing under the laws of the State of Florida,
, with offices located at
("Customer").
WHEREAS,The City operatesa district energy system in the City of Boynton Beach, Florida
(the"System") which provides chilled water service (the "Service"); and
WHEREAS, Customer owns
(the "Facility") and desires to
obtain Service from the City; and
NOW,THEREFORE,in consideration of the mutual covenants contained herein,the parties
hereby agree as follows:
1. DEFINITIONS.
1.1. Except as otherwise expressly provided herein, all nouns, pronouns and variations
thereof shall be deemed to refer to the singular or plural as the context may require,
and any reference to a law or document shall mean such law or document as it may
be amended from time to time.
1.2. "Demand" or "Actual Capacity Requirement" means the peak capacity for chilled
water,in Tons,provided to Customer during any consecutive sixty(60)minute period
during the billing cycle.
1.3. "Billing Demand" or "Monthly Capacity" means either the sum of the Contract
Capacity and any Excess Capacity.
1.4. "BTU"means British thermal unit.
1.5. "Consumption"means the total thermal energy in ton-hours Provided to the Customer
during the billing period.
1.6. "Contract Capacity" means the Service capacity set forth on Exhibit A.
1.7. "Effective Date"means the date of this agreement.
(00346877.3 306-90018211 Page 1 of 25
1.8. "Excess Capacity" means the capacity in tons, provided to the Customer more than
the Contract Capacity.
1.9. "Operation Date" means the date the City commences delivery of Service to
Customer to a Facility. Unless otherwise agreed, each Facility will have its own
Operation Date.
1.10. "Point of Delivery" or "Point of Service" means the physical location on
Customer's supply line where the chilled water enters the facility and the City's
metering equipment is installed.
1.11. "Projected Operation Date" means the date established by this Agreement for
Service to the Customer.
1.12. "Interconnection Charge" means the cost established in Exhibit B required to
establish chilled water service.
1.13. "Ton" means the rate at which heat is removed and is equivalent to 12,000
BTU per hour.
1.14. "Ton-Hour" means the amount of heat that is removed; for example, 3 Ton-
Hours is equivalent to 36,000 BTU.
1.15. "Capacity Charge"means the billable value for Capacity Service as established
in Exhibit B.
1.16. "Consumption Charge" means the billable value for Consumption Service as
established in Exhibit B.
(00346877.3 306-9001821} Page 2 of 25
2. SERVICE.
2.1. General.
2.1.1. Commencing on the Operation Date, the City shall provide Service to
the Facility listed in Exhibit A, in accordance with the specifications
set forth in Exhibit A, and subject to the terms and conditions of this
Agreement.
2.1.2. Operation Date. The Operation Date shall not be earlier than the
Projected Operation Date unless otherwise agreed in writing by
Supplier and Customer.
2.1.2.1. If the Operation Date does not occur on or before the Projected
Operation Date due to a delay caused by Customer, then
Customer shall begin paying the Interconnection Charge as of
the Projected Operation Date notwithstanding such delay.
2.1.2.2. If the Operation Date does not occur on or before the Projected
Operation Date due to a delay caused by Supplier, then
Supplier shall provide Customer with temporary substitute
cooling reasonably acceptable to Customer within 10 business
days after the Projected Operation Date, and Customer shall
begin paying the Interconnection Charge and Capacity Charge
as of the date such temporary cooling is provided.
2.1.3. Customer shall give the City reasonable notice of any intention to
increase significantly its requirements for Service beyond Contract
Capacity. If Customer's Actual Capacity Requirement is more than the
Contract Capacity, the City shall use its best efforts to provide all of
Customer's requirements for Service; however, the City has no
obligation to provide such excess Service. The inability to deliver
excess Service shall not be a breach of the City's obligations, and the
City shall have the right to require Customer to reduce its usage to the
Contract Capacity. If the City provides Excess Capacity to the
Customer, the Customer shall be billed as set forth in Exhibit B. If all
or a portion of the Excess Capacity represents a permanent change in
Customer's requirements, the parties may agree in writing to amend
the Contract Capacity, as provided in Exhibit A.
2.2. City's Responsibility.
2.2.1. The City, at its expense, shall be responsible for the design, furnishing,
construction,and installation of all the equipment and piping necessary
to produce and deliver to the Point of Delivery the Customer's Contract
Capacity of chilled water supply and to receive the chilled water return.
2.2.2. The City shall install, in a location determined by the City to be
reasonable, convenient and practicable, on its side of the Point of
Service, all Service lines reasonably necessary to provide Service
under this Agreement. The City reserves the right to reasonably
determine the location of any of its Service lines and any future
relocation of such lines. Except as otherwise provided in this
Agreement, at its expense, the City shall operate, maintain, repair, and
{00346877.3 306-9001821) Page 3 of 25
replace the Service lines,meters,and equipment furnished by the City,
which shall remain the property of the City.
2.2.3. Although Service will normally be supplied to the Facility through a
single supply line and a single return line, the City may, at its option,
install more than one Service line, subject to Customer's approval,
which approval shall not be unreasonably withheld.
2.2.4. After the City has already installed its equipment and facilities, any
change requested by Customer in the location of one or more Point of
Delivery, or location of the City's metering and other equipment, will
be made at Customer's expense and only after prior written approval
of the City and payment by Customer for such change.
2.2.5. The City shall, at its expense, furnish, install, own, operate, and
maintain metering equipment in a mutually acceptable location within
Customer's Facility, which shall remain the property of the City. The
metering equipment will include a strainer, control valve, associated
controls,sensors and instrumentation,and such metering equipment,as
the City deems necessary and/or appropriate to measure and monitor
the Service to the Facility. Customer shall, at its expense, provide
the necessary connections to the metering equipment and
paragraph 2.3.1 below.
2.2.6. The City shall supply chilled water to Customer through the City's
distribution System from its district cooling system at approximately
the typical operating pressure described in Exhibit A.
2.2.7. The City shall supply chilled water to Customer at the Design Supply
Temperature given in Exhibit A,as measured at the supply valve of the
Metering Equipment. If the chilled water supply temperature is
significantly above the Design Supply Temperature for an extended
period, billing adjustments may be applied as described in Exhibit B.
2.2.8. The City will maintain water quality and will employ such chemical
treatment of its water as it determines to be adequate for the normal
protection of its production and distribution equipment. The City will
advise Customer of the chemical treatment it employs as well as any
changes thereto. Customer is responsible for ensuring that its
equipment is mechanically and chemically compatible with the City's
System. Customer shall not perform any water treatment or add any
chemicals or foreign substances into the water being used in its cooling
system without the prior written consent of the City. The City may
refuse to continue Service to Customer if chilled water is contaminated
within the Customer's Facility.
2.2.9. Only authorized personnel or representatives of the City shall operate
the Service isolation valves and electrical switches, except when
necessary due to emergency circumstances that require immediate
shutoff of Service. The City shall be notified immediately of any such
shutoff.
2.2.9.1.Customer,and its agents and employees shall not be authorized
or knowingly permit any person, except a duly authorized
(00346877.3 306-9001821) Page 4 of 25
employee or representative of the City, to operate the City
equipment (including the re-energizing of Service lines
following emergency shutoffs or disconnections), to break or
replace a the City lock,or to alter or interfere with the operation
of the City meters or connections, or any item of Service
equipment installed or furnished by the City on Customer's
property.
2.2.9.2.To the extent permitted by law,Customer shall be liable for any
loss or damage occasioned by any unauthorized re-energization
of Service lines or any other unauthorized operation of the
City's equipment by Customer, its agents or employees.
2.3. Customer's Responsibility.
2.3.1. Customer, at its expense, shall be responsible for the design,
furnishing, construction, and installation of all internal and external
piping, pumping, and equipment necessary for Customer to connect to
the City's System at the Point of Service and to connect to the City's
metering equipment. The City shall make the final connection to these
points. At Customer's request and expense, the City may design,
furnish, construct and install piping necessary for Customer to connect
from the Point of Service to the metering equipment.
2.3.2. Except for the metering equipment, and except as may be specifically
provided elsewhere in this Agreement, Customer shall, at its expense,
furnish, install, operate, maintain, repair, and replace on Customer's
side of the Point of Service, all such piping, pumps, valves, regulating
devices and electrical switches and all other equipment and facilities
required for Customer to utilize the Service and maintain Service in
accordance with this Agreement. Such equipment and facilities shall
remain the property of Customer.
2.3.3. Customer shall return one hundred percent(100%)of the chilled water
volume delivered to Customer and subject to the terms and conditions
of this Agreement. Notwithstanding the foregoing, reasonable
operational losses are normal and expected, and allowance will be
made for such. Customer shall not tap into, use, or otherwise interfere
with the chilled water in any way that may diminish the flow or change
its temperature beyond the limits stated in Exhibit A.
2.3.4. The Customer shall return the chilled water at a temperature no lower
than the Design Return Temperature as determined in Exhibit A and
measured at the return valve of the Metering Equipment. If the average
chilled water return temperature is below the Design Return
Temperature, billing adjustments may be applied as described in
Exhibit B.
2.3.5. Customer shall give immediate notice to the City and its appropriate
operating personnel of any contamination, leakage, spillage, or other
discharge of chilled water known to Customer. If Customer's
operations or equipment adversely affect the City's measurement of
Service, Customer shall, at its expense, make changes in its operations
(00346877.3 306-90018211 Page 5 of 25
or equipment as necessary to allow accurate measurement of such
Service.
2.3.6. Customer shall install all such equipment, pumping, and piping both
inside and outside the Facility in accordance with generally accepted
industry practices.
2.3.6.1.The City retains the right to review the final design of
equipment, pumping and piping to be installed by Customer
inside or outside the Facility and to make recommendations
thereto to ensure compatibility with the City's System.
2.3.6.2.The City also retains the right to inspect and review equipment,
pumping and piping installation prior to commencement of
Service. The City shall advise Customer within five working
days if the City is of the view that any design of piping to be
installed by Customer will not meet the City's standards or
recommendations,and the City shall make recommendations to
Customer to ensure compatibility with the System.
2.3.6.3.The City may inspect and review such piping installation prior
to commencement of Service.
2.3.6.4.The City's rights of review and inspection hereunder shall not
subject the City to any liability to Customer and shall not
constitute any warranty or guarantee of performance or
effectiveness. Customer hereby acknowledges that it is relying
on its engineers and agents, and not the City, regarding the
installation of Customer's equipment, pumping and piping.
2.3.7. Customer shall provide, without cost to the City, internal, enclosed,
dry, adequately ventilated and secure space for the installation,
inspection, protection and maintenance of the City's meters, and
necessary Service equipment within the Facility, at a location mutually
acceptable to the City and Customer.
2.3.8. Customer will physically connect the City furnished metering
equipment in place and will physically connect the metering equipment
to Customer's supply and return lines.
2.3.9. The City will complete the installation of the metering equipment
including inspecting, testing, adjusting, calibrating and the start-up for
the proper operation of the City equipment. Where electric service is
required for the operation of the City's meters or meter regulating
valves, Customer shall furnish, without cost to the City, all equipment
necessary to provide such service and shall install wiring and piping to
an outlet located conveniently near such meters or meter regulating
valves. The City shall furnish and install wiring and piping from such
outlet to its equipment at the City's expense. At a minimum, this shall
include one (1) dedicated 120-volt, 20-amp circuit in a dedicated
continuous 1.5" EMT conduit, terminated in a 12x12 metal junction
box to the City control cabinet for each instance of Metering
Equipment.
(00346877.3 306-9001821) Page 6 of 25
2.3.10. After Service commences, Customer shall not alter its piping between
the City's Point of Service and Metering Equipment in such a way so
as to remove water volume or thermal capacity. To the extent allowed
by law, if Customer fails to comply with this provision, Customer will
be responsible for any damages,whether consequential,direct,indirect
damages, interest, in addition to any other remedy at law or at equity,
costs, expenses, including consultants' fees and expenses, attorneys'
fees, including any appellate review, court costs, etc., for the
enforcement of this provision.
2.3.11. At all times, Customer shall comply with all applicable laws, rules,
regulations, and ordinances related to the Services.
2.4. The City's employees and authorized representatives shall have the right of
access to the Facility during business hours and after business hours upon
reasonable advance notice, and to all other portions of Customer's property at
all reasonable times for the purposes of installing, inspecting, testing,
protecting, maintaining, replacing, and removing the City's equipment and
other equipment,to ascertain connected loads,or for any other proper purpose.
Customer may temporarily restrict access as reasonably necessary to protect
patient privacy. The City shall be accompanied by Customer's representative
at all times in the Facility, except in the event of an emergency.
2.5. Compatibility of Customer's System.
2.5.1. Prior to, but no less than thirty (30) days before, the City's
interconnection of its System with Customer's Facility,Customer shall
submit for the City's review, mechanical plans and specifications of
Customer's system and equipment for utilization of Service at the
Facility. Additionally, Customer shall afford the City access for
inspection of such system and equipment. After its inspection and
review, the City shall decide whether Customer's system and
equipment are mechanically and chemically compatible with the City's
System. Customer shall make modifications to its system, as
necessary, to assure compatibility with the City's System. The City
shall not be required to commence Service:
2.5.1.1.If the City determines that Customer's system is unsuitable or
incompatible unless and until Customer makes such changes in
its system or equipment as the City deems reasonably
necessary; and
2.5.1.2.Until Customer's installation shall have been thoroughly
cleaned and flushed in accordance with Customer's plans and
specifications as approved by the City,which approval shall not
be unreasonably withheld or delayed.
2.5.2. The City's review of Customer's equipment is solely for the purpose
of determining compatibility with the City's System as set forth herein
end shall not be considered by Customer as any assurance or
representation by the City that Customer's system will perform as
intended or be considered as an approval of Customer's design. The
City,by approving and accepting Customer's system and equipment as
(00346877.3 306-9001821) Page 7 of 25
compatible, shall in no manner be deemed to have assumed any
obligation as to the design, operation, or maintenance of Customer's
system, nor to have relieved Customer in any way from accepting
Service from the City as provided in this Agreement.
2.5.3. After commencement of Service,Customer shall not modify its system
without the City's prior consent. If Customer modifies its system and
the modification causes damage to the City's System or to any of the
City's other customers' equipment or facilities, to the extent allowed
by law, Customer is liable for all damages caused thereby, and the City
may discontinue Service to Customer until Customer has corrected the
situation and eliminated the damage. The City shall bear no
responsibility for any deficiency in Service to Customer resulting from
Customer's system or equipment.
2.6. City Sales to Other Customers.
2.6.1. The City may tap any of the City's Service lines or System lines to the
Facility or on Customer's property for the purpose of extending service
to other the City customers, subject to coordination and approval by
Customer,which approval shall not be unreasonably withheld.
2.6.2. In such event,the City shall: (1)notify Customer of such plans;and(2)
shall repair any damage caused by the City.
2.6.3. Also, in such event, the City shall not: (1) interfere with Customer's
business; (2) adversely impact the value of the Facility; or (3) reduce
customary Service levels.
3. TERM.
3.1. The "Term" of this Agreement will be effective as of the Effective Date and
will remain in effect for a period of twenty (20) years from the earlier of the
Projected Operation Date or the Operation Date, unless earlier terminated in
accordance with the terms of this Agreement.
3.2. After expiration of the twenty-year period related to the newest Facility, this
Agreement may be extended, by mutual written agreement of both parties.
4. INITIAL DEPOSIT, RATES, AND CHARGES FOR SERVICE.
4.1. Initial Deposit. Upon execution of this Agreement by Customer, Customer
shall deliver to the City a performance bond, in form and substance acceptable
to the City in its sole discretion, in the amount of$150,000.00 ("Bond"). The
Bond will name the City as beneficiary and will have an expiration date no
earlier than the initial Operation Date. If for any reason this Agreement
terminates prior to the initial Operation Date, the City may draw against the
Bond an amount sufficient to recover all costs incurred by the City pursuant to
Section 2.2 of this Agreement.
4.2. A"Total Interconnection Charge"shall be determined by the City representing
the costs of establishing the Service connection, including installation of
Service lines, metering and district infrastructure modifications necessary to
the execution of this Agreement. This Total Interconnection Charge shall by
paid by the customer (i) in full or part prior to the commencement of
construction activities and/or (ii) in amortized monthly payments
(003468773 306-9001821) Page 8 of 25
("Interconnection Charges") as agreed upon by the parties and described in
Exhibit B.
4.3. Rates and Charges for Service. Customer shall pay for Service at the rates and
charges as detailed in Exhibit B.
5. BILLING.
5.1. Billing and Payments.
5.1.1. The City shall bill Customer monthly based upon the rates, charges,
surcharges, and fees for Service as provided in Exhibit B.
5.1.2. The billing period shall begin on the Operation Date or the Projected
Operation Date, as provided in Exhibit A, whichever occurs first.
5.2. Taxes, Surcharges, and Fees. The City shall charge and Customer shall pay
all taxes, surcharges, and fees including,but not limited to, any taxes imposed
upon Customer's purchase of the Service that the City is required to collect
and any surcharge or fee reflecting a portion of any tax, license, occupation,
use, consumption,franchise fee or similar fee imposed by any federal, state,or
local governmental authority on Service provided by the City,unless Customer
is otherwise exempt from such obligations and provides proof thereof to the
City.
5.3. Change in Law. The rates and charges for Service assume a continuation of
present laws and regulations and the administration thereof in substantially the
same manner as on the effective date of this Agreement. Should there be any
change in any applicable law or regulation, or the administration or
interpretation thereof by any governmental entity, the City may adjust the
above charges in accordance with its ordinance provisions and applicable rate
hearing, to reflect any change in costs associated with such change in the law
including, but not limited to, changes in the City's labor, fuel, operating,
maintenance, environmental, or other costs of providing the Service, and
including the imposition of any new tax, fee, or surcharge from which
Customer is not exempt.
6. METERING.
6.1. Supplier shall provide, install, operate and maintain:
6.1.1. Service lines connecting the Facility to the district chilled water
System, in locations that are determined by Supplier to be
convenient and practicable, up to Supplier's metering equipment;
6.1.2. Chilled water control and monitoring equipment as is reasonably
necessary to measure and control Service to the Facility,including
a control panel, control valves, flow meter, temperature and
pressure sensors, and associated wire and conduit (collectively,
the"Supplier Equipment" or"Metering Equipment").
6.2. Supplier reserves the right to determine the location of any Supplier
Equipment on the Facility, subject to Customer's approval, which
approval shall not be unreasonably withheld or delayed. Supplier shall act
reasonably in consultation with Customer with respect to any future
relocation of Supplier Equipment. Should Customer request a change in
the location of any Supplier Equipment after initial installation, any such
change will be subject to Supplier's approval and will be made at the
(0034687.3 306-9001821) Page 9 of 25
expense of Customer. Although Service will normally be supplied to the
Facility through a single supply line and single return line, Supplier may
install more than one Service line. All Service lines,heat exchangers and
other Supplier Equipment shall remain the property of Supplier and shall
not be considered a fixture on the property.
6.3. The Service valves, meters and electrical switches shall by operated only
by personnel authorized by Supplier, except when necessary due to
emergency circumstances that require immediate shutoff of Service;
Customer shall notify Supplier immediately of any such emergency
shutoff.
6.3.1. Customer, its agents and employees shall not authorize or
knowingly permit any person, except Supplier's authorized
personnel, to operate Supplier's equipment, break or replace any
Supplier seal or lock, or to alter or interfere with the operation of
Supplier's meters or connections, or any item of Supplier's
Service equipment installed on Customer's property.
6.3.2. Customer shall be liable for any loss or damage caused by any
equipment tampering or vandalism, unauthorized re-energization
of Service lines or any other or unauthorized operation of
Supplier's equipment on the Facility.
6.4. Customer Property.
6.4.1. Customer shall comply with the applicable requirements set forth
in this Agreement.
6.4.2. Customer shall provide, install, operate and maintain all piping
and other chilled water equipment, excluding the Supplier
Equipment, that is necessary to receive Service at the Point of
Service, utilize Service for cooling the building, and return
Service at the Point of Service.
6.4.3. Supplier shall have no responsibility for any Service interruption
that results from a defect, leak, breakage, malfunction or other
condition of Customer-owned Service lines and equipment.
Customer shall provide adequate space and clearance for the
maintenance and safety of Supplier's facilities and equipment on
the Facility and shall provide any necessary safety signage.
6.4.4. Customer shall provide and maintain a mechanical room on the
Facility located against an exterior wall of the building at the
foundation level. The mechanical room shall include:
6.4.4.1.Adequate clearance, unobstructed space, lighting and
HVAC to protect all Service equipment and provide for
safe maintenance and operation thereof; and
6.4.4.2.Electrical connections meeting the specifications set forth
on in 2.3.9, which shall be provided and maintained in
service at no cost to Supplier.
6.4.4.3.Customer shall provide Supplier with drawings of the
mechanical room for review during development. The
Supplier reserves the right to deny service when the
(00346877.3 306-9001821) Page 10 of 25
mechanical room does not meet these minimum
specifications or does not reasonably provide for the
installation of Supplier Equipment.
6.4.4.4.Customer shall complete construction of the mechanical
room no later than 45 days prior to the Projected Operation
Date.
6.5. Throughout the term of this Agreement, the City will have, at the City's
sole expense, the right to install and remove test meter(s) on Customer's
property at locations approved by Customer, such approval shall not be
unreasonably withheld;provided that such installation shall not materially
affect the value of the Facility.
6.6. If Customer requests installation of any meter in addition to those
determined to be appropriate by the City,Customer shall pay all expenses
related to installation and shall pay a monthly charge for each such meter.
6.7. Testing.
6.7.1. Meters installed by either party hereto shall have an accuracy
within accepted ANSI utility standards for such meters and shall
conform to generally accepted engineering practices and
standards applicable to utility metering.
6.7.2. At least once every year, the City shall test the flow and
temperature sensing components of the City's meter(s)to confirm
operation within manufacturer's specifications. If a test
establishes that a City meter is not performing within the
parameters established by the manufacturer's specifications, the
City shall repair or replace the meter, at its option.
6.7.3. Customer may request an additional meter test of the City's meter
at any time, provided that if the meter is found to be accurate,
Customer will bear the cost of the test. Customer may also request
that the City test Customer's meter(s), and in such event, the cost
for such testing will be established by the City and paid by
Customer prior to performing the test(s).
6.8. Bill Adjustments Based on Estimated Use.
6.8.1. If a meter is proven inaccurate, a billing adjustment shall be
made from the date the meter inaccuracy began.
6.8.2. If the date any proven meter inaccuracy began cannot be
determined, a billing adjustment shall be made (excluding any
period of outage or other non-use of Service and taking into
account price changes during the period)for one-half of the period
between the date of the last prior successful meter test or
recalibration and the date of the test disclosing the inaccuracy,but
not for a period greater than six months.
6.8.3. If a meter fails to provide usable readings,the quantities of Service
to be billed for such period will be estimated by Supplier based on
best engineering practices,including one or more of the following:
6.8.3.1.Previous usage history,
6.8.3.2. 30-calendar-day system average,
{00346877.3 306-9001821) Page 11 of 25
6.8.3.3.Comparable metered usage of other buildings,
6.8.3.4.Average daily use.
6.8.4. Customer shall pay for Service during such periods based on the
estimated amount. All billings based on estimated usage shall be
indicated on the bill as such. Customer may dispute such
determination in accordance with the dispute resolution procedure
provided in this Agreement.
7. PERMITS,EASEMENTS AND REGULATORY AUTHORITY.
7.1. Permits and Easements.
7.1.1. The City will use its best efforts to secure and maintain all necessary
permits, easements, ordinances, and licenses over private and public
property and any other approvals that may be required to construct and
operate the district cooling System. The Parties agree that all
obligations of the City to perform under this Agreement are contingent
upon and subject to securing and maintaining all permits, easements,
ordinances, licenses, and approvals referred to in the preceding
sentence.
7.1.2. The City will have the right to terminate, without liability to the City,
this Agreement in the event any such permit, easement, ordinance, or
license is terminated for any reason.
7.1.3. Customer shall reasonably assist and cooperate with the City by
allowing the running of service and distribution lines, as necessary,
through Customer's property and by allowing the installation of all
necessary equipment within and onto Customer's Facilities subject to
Customer's prior review of plans or drawings.
7.1.4. The City shall provide Customer notice and coordinate the installation
of the City's distribution lines, service lines and equipment.
7.1.5. Customer further agrees to execute such grants, deeds, or other
documents as the City may require enabling it to gain access to and
record access rights, easements, and licenses as appropriate.
7.1.6. Customer shall provide the City complete access to its premises as
required for the City to perform its obligations under this Agreement.
7.2. Nothing contained in this Agreement shall be construed as divesting any
applicable regulatory body of any of its rights, jurisdiction, powers, or
authority conferred by law. This Agreement is expressly conditioned upon
receipt of such regulatory approvals or authorization as may be required.
8. WARRANTIES AND REPRESENTATIONS.
8.1. Chilled water produced by the City and delivered to Customer under this
Agreement is not potable, is intended only for typical HVAC applications,and
shall meet the specifications set forth in Exhibit A attached hereto. No other
warranties are applicable to this Agreement or to the Service provided herein.
The City SPECIFICALLY DISCLAIMS ANY WARRANTIES,
INCLUDING WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY
(00346877 3 306-9001821) Page 12 of 25
PARTICULAR PURPOSE, OTHER THAN THOSE EXPRESSLY
PROVIDED UNDER THIS AGREEMENT.
9. LIMITATION OF LIABILITY.
9.1. To the extent permitted by law, the City shall not be liable for any injury or
damage resulting in any way from the use of the Service by Customer or by
third parties except where injury or damage is directly attributable to the City's
negligence.
9.2. The City shall have no responsibility within the Facility for environmental
temperature comfort levels which are controlled and determined by Customer.
Customer shall promptly notify the City in writing of any concerns about the
quantity or quality of Service received.
9.3. Except as otherwise expressly provided for in this Agreement,it is specifically
agreed and understood that neither party will be responsible to the other for
any indirect, special, incidental, or consequential loss or damage whatsoever
(including lost profits and opportunity costs) arising out of this Agreement or
anything done in connection herewith, including but not limited to:
9.3.1. Customer's failure to accept, or the City's failure to deliver, Service at
any time.
9.3.2. Any condition on the City's System or at Customer's Facility which is
imminently likely to endanger life or property, unless it is held by a
court of competent jurisdiction that the City knew or should have
known about such condition.
9.3.3. The construction, engineering, repair, inspection, supervision, testing,
protection, operation, maintenance, replacement, use or ownership of
either party's equipment and/or Facility.
9.4. This Section shall apply whether any such indirect, special, incidental or
consequential loss or damage is based on a claim brought or made in contract
or in tort (including negligence and strict liability), under any warranty, or
otherwise.
9.5. Nothing in this Agreement is to be considered as a waiver of sovereign
immunity or limitation of liability of the City or Customer beyond any
statutorily limited waiver of sovereign immunity or limits of liability which
may have been adopted by the Florida Legislature in Section 768.28, Florida
Statutes, or other State statute, and nothing in this Agreement inures to the
benefit of any third party for the purpose of allowing any claim which would
otherwise be barred under the Doctrine of Sovereign Immunity or by operation
of law.
10. INDEMNIFICATION.
10.1. Except as limited in this Agreement, Customer hereby assumes all risk of and
responsibility for,and agrees to indemnify,defend and hold harmless the City,
its directors, officers, employees, and agents from and against any and all
claims, demands, suits, actions, recoveries, judgments, costs and expenses
(including without limitation reasonable attorneys' fees actually incurred,
including all those incurred in all appellate actions), in connection therewith,
made brought or obtained on account of loss of life or property, or injury or
(00346877.3 306-9001821) Page 13 of 25
damage to the person or property of any person or persons, which arise out of
or result from any negligent act or omission of Customer,its directors,officers,
employees and agents in connection with the performance of its duties and
obligations under this Agreement.
11. SUSPENSION OF SERVICE.
11.1. The City will endeavor at all times to provide a regular and uninterrupted
Service on a twenty-four (24) hour a day basis in accordance with this
Agreement. If Service is interrupted through its action or if Service is
interrupted because of a failure of the City owned equipment, the City will
make every reasonable effort to provide alternative service, at no additional
charge to Customer,until normal Service is reestablished. The City shall have
no liability for any Service interruption caused by Customer's actions or any
failure of Customer owned or installed equipment.
11.2. In the event Customer's equipment, pumping, or piping is unsafe or not in
material compliance with applicable laws,rules,regulations or ordinances,the
City may immediately suspend the delivery of Service until the condition is
corrected to the reasonable satisfaction of the City.
11.3. The City may suspend, without liability, Service, if necessary, to comply with
any requirement of a governmental authority. The City will use its best efforts
to provide prior notice in such cases and will use its best efforts to complete
these services with minimal impact to Customer's Service.
11.4. The City may suspend, without liability, Service to maintain, repair, replace,
or change its equipment on or off the Facility. Except in case of emergency,
regular maintenance, repair, changing of equipment, or replacement shall be
conducted at a time that will minimize the impact on Customer's ability to
utilize the Facility. If such Service interruption is reasonably expected to
exceed twelve (12) hours, the City shall provide alternative Service to
Customer at no additional cost to Customer. The City will make reasonable
efforts to schedule this work during times and for a duration that will allow for
a normal operating environment.
11.5. Subject to the terms and conditions hereof, in addition to any and all other
rights and remedies available at law or in equity,the City may suspend Service
to Customer for a material default. In the event of suspension of Service by
the City due to a material default by Customer, Service shall not be
recommenced unless and until Customer shall:
11.5.1. Cure the material default; and
11.5.2. Pay all amounts due for Service supplied prior to discontinuance and
the cost of disconnection and reconnection.
11.6. Notwithstanding any suspension of Service pursuant to this Section,Customer
shall remain liable for the Capacity Charge for the Term of the Agreement
unless otherwise expressly provided in this Agreement.
12. TERMINATION.
12.1. Termination for Default.
12.1.1. The City is in material default if:
12.1.1.1. The City fails to supply Service to the Facility(from the
System or by any alternate service including,but not limited to,
(00346877.3 306-9001821) Page 14 of 25
portable chillers) for a period of seventy-two (72) consecutive
hours, and such failure is not otherwise excused under this
Agreement; or
12.1.1.2. The City fails to comply with any other material
provision of this Agreement.
12.1.2. Customer is in material default if:
12.1.2.1. Customer fails to pay any bill for Service rendered or
other charges incurred under this Agreement in line with
current Utility policy for late payment.
12.1.2.2. Customer fails to comply with any other material
provision of this Agreement; or
12.1.2.3. Customer fails to comply with any other provision of
this Agreement and fails to cure such provision within thirty
(30) days after written notice of the default.
12.1.3. Either party may terminate this Agreement by written notice of
termination for material default hand delivered to the other party or sent
by certified mail return receipt requested.Upon delivery of such notice
of termination,the defaulting party shall have ten(10)calendar days in
which to provide the other party with a detailed plan to cure such
material default. Upon receipt of any such plan, the terminating party
shall review the plan and notify the defaulting party whether or not
such plan has been approved. If the plan is approved, the defaulting
party shall commence to cure the default within the time set forth in the
approved plan for the default to be cured. A written notice to the
defaulting party that (i) the plan to cure the default is rejected; or (ii)
the defaulting party has failed to cure such default in accordance with
an approved plan, shall constitute termination for default under this
provision.
12.2. Termination for Convenience.
12.2.1.1. Customer may terminate for convenience if, at any time
during the Term, a permanent cessation of Customer's business
occurs. Customer may also convert the City's termination for
material default into a termination for convenience as provided
herein. In order to terminate for convenience, Customer must
provide the City sixty (60) days written notice of its intent to
terminate for convenience, and Customer must pay the City an
amount equal to the present value of the remaining Contract
Capacity payments for the Term of the Agreement. Said
payment shall be one lump sum amount payable to the City in
the form of a cashier's check, or other method of payment
acceptable to the City, with such payment being made prior to
the termination for convenience date.
12.2.2. The City may terminate this Agreement for convenience at any time,
and without any further liability to Customer, by giving Customer
twelve (12) months prior written notice.
(00346877.3 306-9001821) Page 15 of 25
12.3. Termination for Bond Status. Upon written notice in advance to Customer,the
City may terminate this Agreement, if the existence of this Agreement creates
an adverse impact upon the City's tax-exempt bond status. Upon receipt of
such notice, Customer shall have the right to review with the City and its bond
counsel the reason(s)for the creation of such adverse impact and to determine,
in concert with the City, whether the existence thereof can be eliminated by
the amendment of this Agreement. In such event, the City shall, before the
effective date of any termination, and if Customer so elects, negotiate in good
faith with Customer to amend the Agreement to eliminate the adverse impact.
Should the City become aware of any pending legislation or regulatory change
which is likely to have an adverse impact upon the City's tax-exempt bond
status due to the existence of this Agreement, the City shall promptly notify
Customer thereof. Customer, at its sole cost and expense, may contest such
legislation or regulatory action, including rights of legal challenge and appeal
to effect elimination of such adverse impact, and the City shall support such
activities of Customer at no cost or expense to the City. Notwithstanding the
foregoing,the City retains the right to terminate this Agreement at any time if,
in its sole judgment, this Agreement creates an adverse impact on its tax-
exempt bond status; however, the City agrees not to terminate this Agreement
until the latest reasonable date as determined by the City.
12.4. Removal of the City Equipment and Facilities.
12.4.1. In the event of termination for any reason, the City may enter
Customer's Facility, at a reasonable time and upon giving reasonable
notice, to cut and cap the City's piping at the Service supply valve and
the return valve and to remove the City's equipment and facilities.
Customer shall be responsible, at Customer's expense, for cutting and
capping Customer's piping on either side of the City's Metering
Equipment. Customer shall be responsible for any reasonable loss or
damage to the City's equipment and facilities caused by Customer's
cutting and capping. the City shall be responsible for any reasonable
loss or damage caused by the City's removal of its equipment and
facilities. Except as otherwise provided in Section 12.4.3, if the City
does not remove its equipment and facilities within thirty (30) days of
termination, or make other arrangements with Customer, then
Customer may remove the City's equipment and facilities at
Customer's own expense.
12.4.2. In the event the City terminates this Agreement due to Customer's
default, or Customer terminates for convenience, the City may remove
its equipment and facilities from Customer's Facility at Customer's
reasonable expense and by giving reasonable notice. Customer shall
reimburse the City, within thirty (30) days of written demand, for all
documented reasonable costs incurred by the City associated with such
removal. Alternatively, at its sole discretion,the City may abandon all
or part of its equipment and facilities located within Customer's
Facility with no further responsibility or liability for abandoned
equipment and facilities. Rights to remove or abandon equipment and
(00346877.3 306-9001821} Page 16 of 25
facilities are in addition to any other rights and remedies available at
law or in equity.
12.4.3. In the event Customer terminates this Agreement due to the City's
default, or the City terminates for convenience, Customer may require
the City to remove its equipment and facilities from Customer's
Facility at the City's reasonable expense and by giving reasonable
notice. The City shall repair damage to Customer's Facility caused by
the City's removal of its equipment and facilities. If the City does not
remove its equipment and facilities within thirty (30) days of
termination or such other time agreed to by Customer, then Customer
may remove the City's equipment and facilities. The City shall
reimburse Customer, within thirty (30) days of written demand, for all
documented reasonable costs incurred by Customer associated with
such removal.
12.5. Continuing Rights and Obligations After Termination.
12.5.1. Termination of this Agreement does not relieve either party from any
obligations incurred under this Agreement prior to termination
including,but not limited to,Customer's obligation to pay any amounts
outstanding for Service supplied to Customer prior to termination.
12.5.2. After termination by either party, the City shall continue to have the
right to access its distribution lines which may cross Customer's
Facility and other property.
12.5.3. Indemnity obligations survive termination and the Term of this
Agreement for events that occurred during the Term of this Agreement
and prior to termination.
13. INSURANCE.
13.1. Customer and the City each agrees to maintain its own insurance or self-
insurance for its own interest and expense.
13.2. This insurance or self-insurance includes, but is not limited to, workers'
compensation, general liability (premises-operations), automobile liability,
and all risk property damage for assets owned or in the care,custody or control
of Customer or the City.
13.3. If any of the aforementioned insurance is purchased from insurance carriers,
the purchasing party must obtain waivers of subrogation from its insurance
carriers in favor of the other party, including the other party's employees,
officers, directors, agents, successors and assigns. These waivers of
subrogation will survive beyond the Term of this Agreement.
13.4. Customer agrees to provide the City with evidence of its insurance or self-
insurance program in form and amount reasonably acceptable to the City. If
Customer has insurance, Customer will have the City named as an additional
insured.
14. FORCE MAJEURE.
(00346877.3 306-9001821) Page 17 of 25
14.1. As used in this Agreement, "Force Majeure" means any event beyond the
control of a party which results in the failure of some performance under this
Agreement, including but not limited to the following: failure of facilities or
equipment due to drought, flood, earthquake, hurricane, storm, fire, lightning,
epidemic, war, riot, civil disturbance, sabotage, strike or labor difficulty,
accident or curtailment of supply or equipment not caused or reasonably
foreseen by the party; casualty to equipment or other unavailability of
equipment or replacement equipment, inability to obtain and maintain rights-
of-way permits, licenses and other required authorizations from any federal,
state or local agency or person for any of the facilities or equipment necessary
to provide or receive Service hereunder; and restraint, order or decree by any
court or public authority.
14.2. Neither party shall be considered to be in default in respect of any obligation
hereunder (other than the obligation to pay amounts due to the other party
under or pursuant to this Agreement)to the extent such failure of performance
shall be due to a Force Majeure event. The party affected by a Force Majeure
event shall give written notice to the other party within five (5) days of the
commencement of non-performance due to a Force Majeure event identifying
the nature of the event, its anticipated duration, and any action being taken to
avoid or minimize its effect. The non-performing party shall use reasonable
efforts to remedy its inability to perform, but neither party shall be obliged to
settle or resolve a labor difficulty or to hire substitute labor on terms
unacceptable to that party.
15. PLEDGE OR ASSIGNMENT.
15.1. Except as herein provided, neither party may pledge or assign its rights
hereunder without the prior written consent of the other party,which shall not
be unreasonably withheld or delayed.
15.2. The City may, from time to time, may assign or pledge for the benefit of any
lender, mortgagee and/or bond trustee, any or all of its rights hereunder,
including its rights to receive payments. Customer shall cooperate as
reasonably requested by the City to provide information in order for the City
to secure financing and satisfy the City's lenders.
15.3. Upon prior written notice to the City, Customer may transfer and assign this
Agreement to a purchaser of the Facility; provided that any and all assignees
or successors in interest provide a written confirmation attesting to their
agreement to the terms and conditions of this Agreement and their intent to
abide and be legally bound hereby. If Customer fails to obtain said written
agreement from any assignee or successor in interest, notwithstanding such
assignment by Customer,Customer shall remain liable hereunder for the Term
of this Agreement.
16. DISPUTE RESOLUTION.
16.1. Either party shall provide written notice to the other party within ten (10)
business days of the occurrence of any claim, dispute or other controversy
arising out of or relating to, or in connection with this Agreement(collectively
(00346877.3 306-9001821) Page 18 of 25
referred to as a"Dispute"). Such notice shall provide a detailed description of
the facts surrounding the Dispute in sufficient detail to identify the Dispute,its
character and scope, any impact on the party initiating the Dispute, and any
attempts by the initiating party to mitigate such impact. The initiating party
shall provide to the other party documentation supporting its written notice
within twenty(20)days of the initial written notice. Any Dispute not presented
to the other party within the time specified herein and not documented within
the time specified herein shall be deemed to have been waived.
16.2. Within ten (10) business days of receipt of a notice of dispute, the receiving
party shall provide to the disputing party a written response. The parties should
meet in an attempt to resolve the dispute prior to proceeding to the next step.
If, after meeting, the parties are still unable to resolve the dispute, the parties
shall follow the applicable contract dispute provisions in the City Purchasing
Code, as amended.
16.3. The parties must attempt to resolve the dispute in accordance with the City
Purchasing Code,and a decision must be rendered by the Procurement Appeals
Board as a condition precedent to the party's instituting any other legal action.
17. NOTICES.
17.1. All notices provided for in this Agreement (other than notices designated for
delivery to operating personnel,which shall be made in any manner reasonable
under the circumstances), shall be made in writing and delivered in person or
by registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
17.1.1. To the City:
City of Boynton Beach
Utility Director
124 E. Woolbright Road
Boynton Beach, Florida, 33435
17.1.2. To Customer: :
17.2. Notices shall be effective when received at the address specified above.
Changes in the respective addresses to which such notice is directed may be
made from time to time by written notice.
18. OTHER PROVISIONS.
18.1. Governing Law and Venue. This Agreement will be governed by and
interpreted in accordance with the laws of the State of Florida. The venue of
any legal action brought or filed relating to any matter arising under this
(00346877.3 306-9001821} Page 19 of 25
Agreement will be exclusively in the federal and state courts sitting in Palm
Beach County, Florida, having jurisdiction over such legal action.
18.2. Severability. The invalidity, illegality, or unenforceability of any provision
of this Agreement, or the occurrence of any event rendering any portion or
provision of this Agreement void, will not affect the validity or enforceability
of any other portion or provision of the Agreement. Any void provision will
be deemed severed from the Agreement,and the balance of the Agreement will
be construed and enforced as if the Agreement did not contain the particular
portion or provision held to be void. The parties further agree to reform the
Agreement to replace any stricken provision with a valid provision that comes
as close as possible to the intent of the stricken provision. The provisions of
this section will not prevent the entire Agreement from being void should a
provision which is of the essence of the Agreement be determined to be void.
18.3. Entire Agreement and Amendments. This Agreement, with all attachments
and documents referenced hereto, constitutes the entire Agreement between
the parties with respect to the scope of services and terms and conditions
described herein and extinguishes and supersedes any and all prior agreements
and any and all amendments and prior understandings between the parties with
respect to same. Furthermore, there shall be no changes, modifications, or
amendments to this Agreement except by written agreement signed by both
parties and executed with the same formalities.
18.4. Nonwaiver and Remedies. Failure by either party at any time to require strict
performance by the other party of any provisions hereof does not release that
party from its obligations under the Agreement and does not affect the right of
the party,thereafter, to enforce the same. Each remedy under this Agreement
shall be cumulative and in addition to any other remedy provided by law.
18.5. Section Headings. Section and subsection headings appearing in the
Agreement are inserted for convenience of reference only and will not be
construed as interpretation of text.
18.6. Incorporation of Recitals and Appendices. The recitals, any appendices to the
Agreement, and applicable federal, state and local laws, rules and regulations
at the time of the Agreement's adoption, are incorporated into and constitute
part of this Agreement.
18.7. Preparation of Agreement. Both parties acknowledge that they have had
meaningful input into the terms and conditions contained in this Agreement;
therefore, any doubtful or ambiguous provisions contained herein shall not be
construed against the party who physically prepared this Agreement.
18.8. Execution in Counterparts. This instrument may be executed in any number
of counterparts, each of which, when executed and delivered, constitutes an
original, and such counterparts together constitute one and the same
instrument. Signature and acknowledgment pages, if any, may be detached
from the counterparts and attached to a single copy of this document to
physically form one document.
18.9. Warranties. Each party represents and warrants that it is authorized to enter
into this Agreement for the Service and to permit the System to be installed at
the Facility, and that it has secured all necessary approvals for such action.
(003468773 306-9001821) Page 20 of 25
18.10. Public Records and Sunshine Law. This Agreement and any related
documents are considered public records under the "Public Records Law,"
Chapter 119, Florida Statutes,unless specifically exempted by law. Customer
agrees to cooperate and comply with any request made for production of Public
Records. Any meetings involving two or more members of the City at which
official acts are to be taken are considered public meetings under the Florida
"Government in the Sunshine Law," as contained in Chapter 286, Florida
Statutes.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
(003468773 306-9001821) Page 21 of 25
IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by their
duly authorized representatives on the day and year first written above.
WITNESS: CITY OF BOYNTON BEACH, FLORIDA
By: Lori LaVerriere
City Manager
Form Approved:
City Attorney
By
,City Attorney
WITNESS:
By
Its
Approved as to form and legality
Approved by:
(00346877.3 306-9001821) Page 22 of 25
EXHIBIT A
CONTRACT CAPACITY AND SERVICE SPECIFICATIONS
Description of Facility:
Name of Building(s): [ ]
Projected Operation Date: [ ]
Address: [ ]
Contract Capacity: [ ] Tons
Service Specifications:
Typical Operating Pressure: [40] PSIG
Design Supply Temperature: [45] Degree Fahrenheit. (The supply temperature may vary
moderately during plant or Customer transitions.)
Maximum Design Supply Temperature: [48] Degree Fahrenheit.
Design Return Temperature: [57] Degree Fahrenheit
{00346877.3 306-9001821) Page 23 of 25
EXHIBIT B
CHARGES AND FEES FOR SERVICE
(BASED ON RATES ESTABLISHED AND SUBJECT TO ANNUAL ADJUSTMENT BY CITY
RESOLUTION)
I. CHARGES FOR SERVICE
A. INTERCONNECTION CHARGE:
A Total Interconnection Charge of$[25,000] is due from Customer.
The Customer agrees to provide an initial payment of$[ ].Additionally,they
agree to pay an Interconnection Charge of $[ ] monthly, for a period of
[ ] months.
B. CAPACITY CHARGE:
The"Capacity Charge"is calculated monthly as the Monthly Capacity multiplied
by the Capacity Rate, where
(i) Monthly Capacity is the sum of the Contract Capacity and any Excess
Capacity utilized during the billing period, in Tons;
(ii) The Capacity Rate as of the Effective Date is $[30.00] per Ton and is
adjusted annually each January during the term of this Agreement by
increasing or decreasing the Capacity Rate then in effect by the CPI
Adjustment; and
(iii) The CPI Adjustment is based on the Consumer Price Index for All
Urban Consumers (CPI-U): U.S. city average, all items index(CPI-U),
and shall be the unadjusted percent change from January of the previous
year, published by the U.S. Department of Labor, Bureau of Labor
Statistics (or comparable successor index).
C. CONSUMPTION CHARGE:
The "Consumption Charge" is calculated monthly as the Monthly Consumption
multiplied by the Consumption Rate, where
(i) "Monthly Consumption" is the quantity(in Ton-Hours) of Service
consumed during the billing period;
(ii) The Consumption Rate as of the Effective Date is $[0.240] per Ton-
Hour and is adjusted annually each January during the Term of this
Agreement by increasing or decreasing the Consumption Rate then in
effect by the Consumption Charge Adjustment; and
(iii) The CPI Adjustment is calculated as described in Section B above;
{00346877 3 306-9001821 j Page 24 of 25
II. OTHER CHARGES
A. RETURN TEMPERATURE ADJUSTMENT:
Except as provided below, the Return Temperature Adjustment will be added
to customer's invoice in any billing period in which the Weighted Average
Return Temperature is less than the Designed Return Temperature. The Return
Temperature Adjustment shall be calculated as the Consumption Charge
multiplied by [12.5] percent for each degree, in Fahrenheit, that the Weighted
Average Return Temperature falls below the Designed Return Temperature.
For purposes of calculating the Return Temperature Adjustment:
(i) The Weighted Average Return Temperature is the average temperature of
chilled water returned by Customer and measured at the Point of Service
during the billing period,weighted for volumetric flow rate(Gallons-per-
Minute); and
(ii) The Designed Return Temperature is provided in Exhibit A to this
Agreement.
The Return Temperature Adjustment will not be applied during the first three
billing periods following the Operation Date.
III.OTHER ADJUSTMENTS
B. SUPPLY TEMPERATURE ADJUSTMENT:
Except as provided below,the Supply Temperature Adjustment will be credited
to customer's invoice in any billing period in which the Weighted Average
Supply Temperature is more than the Maximum Designed Supply Temperature.
The Supply Temperature Adjustment shall be calculated as the Consumption
Charge multiplied by [12.5] percent for each degree, in Fahrenheit, that the
Weighted Average Return Temperature exceeds the Maximum Designed Supply
Temperature.
For purposes of calculating the Supply Temperature Adjustment:
(i) The Weighted Average Supply Temperature is the average temperature
of chilled water supplied to the Customer and measured at the Point of
Service during the billing period, weighted for volumetric flow rate
(Gallons-per-Minute);and
(ii) The Maximum Designed Supply Temperature is provided in Exhibit A to
this Agreement.
The Supply Temperature Adjustment will not be applied during the first three
billing periods following the Operation Date.
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