99214-AMENDMENT NO. 4 (MADISON).DOCX

AMENDMENT NO. 4 TO
MASTER CHILLED WATER SERVICE AGREEMENT
This Amendment No. 4 to the Master Chilled Water Service Agreement ("Amendment No.4") is
dated as of • 2016 (the "Amendment No. 4 Execution Date") by and between NRG ENERGY
CENTER PHOENIX LLC (as purchaser and successor in interest of NORTHWIND PHOENIX, LLC), a
Delaware Limited Liability Company, ("Supplier") and Maricopa County, a political subdivision of the
State of Arizona, by and through its Facilities Management Department, and its successors and assigns,
("Customer") (all undefined capitalized terms used in this Amendment No. 4 shall have the meanings
ascribed to those terms in Appendix A attached to the Master Chilled Water Service Agreement, as
referenced below).
RECITALS
WHEREAS, Supplier and Customer are parties to a Master Chilled Water Service Agreement
dated June 21, 2000 (as amended, the "Agreement"), pursuant to which Supplier provides chilled water
service to various of Customer's locations, including the Premises (as described below);
WHEREAS, the parties desire to increase the Contract Capacity for the Premises and to modify
certain terms and conditions of the Agreement as set forth in this Amendment No. 4.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Supplier and Customer agree as follows:
1. Chilled Water Service.
The Premises. For the purposes of this Amendment No.4, references to the "Premises" shall
mean the Maricopa County 225 W. Madison St. Building (a/k/a the Madison St. Building),
Phoenix, Arizona.
1.2. The Equipment. Supplier shall install the equipment described in Attachment 1 to this
Amendment No. 4 (the "Equipment") inside the Premises at a location to be mutually agreed
upon by the parties, and connect it to Supplier's chilled water loop. Supplier shall install and
connect the Equipment generally in accordance with the timetable set forth in Attachment 1,
subject to Customer's payment of the Interconnection Charge set forth in Section 2.3.3 and
Force Majeure. Customer shall provide Supplier with all access, approvals and cooperation
necessary for Supplier to install and connect the Equipment as set forth herein.
1.3. Contract Capacity. Beginning on the first Business Day after Supplier completes the
installation and connection of the Equipment as provided in Section 1.2, the Contract Capacity
for the Premises shall be 1200 Tons.
1.4. One-Time Adjustment in Contract Capacity. Pursuant to Section 1.2.3(b) of the Agreement,
Customer may request a one-time adjustment of up to twenty-five percent (25%) of the
Contract Capacity for the Premises by so notifying Supplier in writing within sixty (60) days
after the first two (2) consecutive summers following the Amendment No. 4 Service
Commencement Date. If Customer provides such notice, the Contract Capacity shall be so
adjusted as soon as commercially practicable thereafter and upon such adjustment, Customer's
monthly Contract Capacity Charge (as stated in Section 2.3.1) for chilled water service to the
Premises shall be adjusted by an amount equal to the then current monthly Contract Capacity
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Charge charged by Supplier to Customer, divided by 1200 Tons, multiplied by the increased or
reduced Contract Capacity in Tons. An exceedance in Customer's demand above the Contract
Capacity during such first two (2) consecutive summers period shall be treated as Customer's
exercise of its right to increase its Contract Capacity under this Section 1.4 by the amount of
such exceedance.
2. Term; Monthly Charges.
2.1. Service Commencement Date. Supplier will begin to supply chilled water to the Premises based
on the Contract Capacity on a mutually agreed date (the "Amendment No. 4 Service
Commencement Date"); provided, however, that the Amendment No. 4 Service Commencement
Date shall in any event occur no later than September 1, 2018. By mutual agreement, the parties
may amend the timetable in Attachment 1 to accelerate the increase in Contract Capacity based
on the needs of Customer.
2.2. Term. This Amendment No. 4 shall become effective on the Amendment No. 4 Service
Commencement Date and continue thereafter until expiration of the Initial Term of the
Agreement and any renewal term, as such Initial Term and any renewal term is extended pursuant
to Amendment No. 5 to the Agreement. ("Amendment No. 5").
2.3. Charges.
2.3.1. Monthly Contract Capacity Charge. Beginning on the Amendment No. 4 Service
Commencement Date, the monthly Contract Capacity Charge for the Premises shall be
$42,032.40, adjusted beginning February 1, 2017 as set forth in Section 3. The monthly
Contract Capacity Charge is payable in advance, as set forth in Section 3.1 (Invoices) of
the Agreement.
2.3.2. Consumption Charge. Beginning on the Amendment No. 4 Service Commencement
Date, the Consumption Charge for the Premises shall be $0.202 per Ton-Hour, adjusted as
set forth in Section 3.
2.3.3. Interconnection Charge. The interconnection costs for the Equipment shall be
Supplier's responsibility pursuant to Section 1.2.3(d) of the Agreement; provided,
however, that Customer shall be responsible for any costs outside of the scope of work
described in Section 1.2.3 and Customer shall pay any such costs within thirty (30) days
after receipt of invoice therefor from Supplier. Payment of such additional costs shall be a
condition precedent to Supplier's obligation to interconnect the Premises to Supplier's
chilled water system and supply chilled water under this Amendment No.4.
3. Adjustments.
3.1 Annual Adjustment. The monthly Contract Capacity Charge and the Consumption Charge to
take effect on the Amendment No. 4 Service Commencement Date shall be adjusted as follows,
beginning February 1,2017 and on each February 1 thereafter.
3.1.1 Monthly Contract Capacity Charge: The product of (i) the most recent monthly
Contract Capacity Charge prior to the adjustment (which shall be $42,032.4 in the case of the
first adjustment), multiplied by (ii) the percentage increase, if any, in the monthly average of
the Consumer Price Index (CPI) for the twelve months immediately preceding July 1 of the
calendar year prior to the calendar year in which the adjustment is to be effective compared to
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the monthly average of the CPI calculated for the previous twelve months. The percentage
change is calculated by dividing (a) the monthly average CPI for the twelve months preceding
July 1 of the calendar year immediately prior to the calendar year in which the adjustment is to
be effective by (b) the monthly average CPI for the previous twelve months. For example, the
adjustment as of February 1, 2017 will be the monthly average of the CPI for the period July
2015 through June 2016 divided by the monthly average of the CPI for the period July 2014
through June 2015.
3.1.2 Consumption Charge. The product of (i) the most recent Consumption Charge per
Ton-Hour prior to the adjustment, multiplied by (ii) the appropriate weighting pursuant to
Section 3.2.1, below, and the percentage increase, if any, in the monthly average of the
Consumer Price Index (CPI) for the twelve months immediately preceding July 1 of the
calendar year prior to the calendar year in which the adjustment is to be effective compared to
the monthly average of the CPI calculated for the previous twelve months. The percentage
change is calculated by dividing (a) the monthly average CPI for the twelve months preceding
July lof the calendar year immediately prior to the calendar year in which the adjustment is to
be effective by (b) the monthly average CPI for the previous twelve months. For example, the
adjustment as of February 1, 2017 will be the monthly average of the CPI for the period July
2015 through June 2016 divided by the monthly average of the CPI for the period July 2014
through June 2015.
3.1.3 No Decrease. In no event shall the foregoing adjustments provided for in subsections
3.1.1 and 3.1.2 be based on changes in the CPI which result in a decrease from the then
monthly Contract Capacity Charge and Consumption Charge.
3.1.4 Index. For purposes of this Section 3, "Consumer Price Index" or "CPI" means the
Western Region, Size A City Average Consumer Price Index as published by the Bureau of
Labor Statistics, all items other than food and energy, not seasonably adjusted, Series ID:
CUURA400SAOLI E, as it appears in the "News" as published monthly by the United States
Department of Labor, Bureau of Labor Statistics); provided, however, that if said Consumer
Price Index shall cease to exist, is changed, or no longer provides a reliable cost trending
indicator, then the term "Consumer Price Index" shall mean such other or similar index or
formula as the parties shall in good faith mutually agree upon to measure changes in material,
maintenance, repair, and/or labor costs.
3.2 Adjustments for Changes in Electricity and Water/Sewer Rates.
The Consumption Charge shall also be subject to adjustment for any changes in Supplier's
cost of electricity and water/sewer occurring after May 31, 2016, and such adjustment shall
become effective as of the date upon which such changes became effective. The adjusted
Consumption Charge shall be the basis of all future adjustments. The adjustment
methodology is as follows:
3.2.1 Weighting. Upon each Consumption Charge adjustment, the Supplier shall
determine its weighting of CPI, electricity, and water/sewer adjustments that represent
Supplier's respective cost make-up of providing chilled water service. The three
weightings shall total 100%. The initial weighting, subject to change by Supplier, shall
be 5% for CPI, 85% for electricity, and 10% for water/sewer.
3.2.2 Adjustment. Upon any changes in Supplier's eleetricity or water/sewer rates,
Supplier shall determine the percentage change in its respective average unit cost ($/kWh
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for electricity or $11000 gal for water), based on Supplier's historical consumption data for
the twelve-month period immediately prior to the rate change ("rate change" shall mean
any changes including but not limited to changes in taxes, fees, surcharges, fuel
adjustments, rate structure changes, rate eliminations or deregulation impacts). Changes
in the Consumption Charge under the Agreement shall be effective concurrent with the
effective date of the applicable electric or water/sewer rate change. The percentage
change in the Consumption Charge shall equal the percentage change in unit cost
multiplied by its weighting. For example, a 10% electricity unit cost increase multiplied
by a 85% electricity weighting means the Consumption Charge would increase by 8.5%
(10% X 85% =8.5%).
3.3 Effects of Changes of Law; Taxes, Fees and other Charges.
In addition to the foregoing adjustments, Supplier may adjust the monthly Contract Capacity
Charge and the Consumption Charge to reflect any other increases in Supplier's costs of
providing chilled water to Customer's Premises that result from the adoption or modification of
any applicable laws, rules, ordinances, regulations or orders of any governmental authority, or
from any change in the interpretation by any court, tribunal or regulatory agency of any such
applicable laws, rules, ordinances, regulations or orders, after the date of this Agreement, or
Force Majeure Events under Section 10 of the Agreement, and such adjustment will become
effective immediately upon notice ofthe adjustment to Customer. By way of illustration and
not exclusion, Customer will pay to Supplier any taxes levied upon the services provided by
Supplier, including without limitation any use or license fee, upon receipt of Supplier's
invoice for such taxes.
4. Effect of this Amendment No.4. The provisions contained in this Amendment No. 4 relate only to
chilled water service to the Premises and charges in connection therewith (i.e., the Maricopa
County 225 W. Madison St. Building described in Section 1.1). Except as expressly provided
otherwise in this Amendment No.4, the Agreement between the parties shall remain in full force
and effect. Any conflict or inconsistency between this Amendment No. 4 and the Agreement
prior to amendment hereby shall be governed by this Amendment No. 4.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Amendment No. 4 as of
the date set forth above.
[signatures on next page]
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NRG ENERO CENTER PHOENIX LLC
Name: Cuivw'S
Title:
MARICOPA COUNTY, ARIZONA
BY:
CHAIRMAN, BOARD OF SUPERVISORS DATE
ATTESTED:
CLERK OF THE BOARD DATE
APPROVED AS TO FORM:
DEPUTY COUNTY ATTORNEY DATE
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Attachment 1 — Equipment and Timetable
[to be inserted]
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