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HomeMy WebLinkAboutBy-law 2246/86THE CORPORATION OF THE TOWN OF PICKERING BY-LAW NO.2246/86 Being a By-law to authorize the execution of an agreement with Enershare Technologies Inc. for the provision of energy conservation/management services at the Pickering Recreation Complex. WHEREAS pursuant to the provisions of section Z08.57 of the Municipal Act, R.S.O. 1980, c.302, by-laws may be passed by the councils of all municipalities for, inter alia, maintaining and operating places of recreation and amusement, arenas, auditori- ums, community recreation centres and similar buildings; NOW THEREFORE, the Council of the Corporation of the Town of Picketing HEREBY ENACTS AS FOLLOWS: Subject to the provisions of section 2, the Mayor and Clerk are hereby au- thorized to execute an agreement dated June 16, 198/) in the form attached hereto as Schedule A between the Corporation of the Town of Pickering and Enershare Technologies Inc. for the provision of energy conservation/manage- ment services at the Pickering Recreation Complex. Section 1 shall not take effect until the Ontario Municipal Board has ordered that the Corporation of the Town of Picketing may enter into the agreement referred to therein. The Clerk is authorized to make application to the Ontario Municipal Board, under section 64 of the Ontario Municipal Board Act, R.S.O. 1980, c. 347, for an order approving of the entering into of that agreement and the disbursement of sums of money payable thereunder. 4. Schedule A hereto forms part of this By-law. BY-LAW read a first, second and third time and finally passed this 16thday of June, 1986. TOWN OF PICKERING APPROTED LEGAL O£PT. John E. Anderson, Mayor /Bruce Taylor, Clerk/ SCHEDULE A to By-law 2246/86 THIS AGREEMENT made this 15th day of June, 1986. BETWEEN: ENERSHARE TECltNOLOGIES INC. hereinafter called "Enershare" OF THE FIRST PART, THE CORPORATION OF THE TOWN OF PICKERING hereinafter called the "Owner" OF THE SECOND PART. WHEREAS the Owner owns and operates the building listed and described in Schedule A attached hereto (hereinafter referred to as the "Premises"); and WHEREAS Enershare has undertaken an energy study of the Premises; and WHEREAS Enershare has agreed to provide thermal management services including the provision and installation of certain energy conservation equipment at the Premises, the combination of which is intended to reduce energy consumption at the Premises; NOW THEREFORE, in consideration of the mutual covenants, conditions and agree- ments herein contained, other good and valuable consideration and the sum of one dollar now paid by each of the parties hereto to the other, the receipt whereof is hereby acknowledged, the parties hereto covenant, promise and agree as follows: DEFINITIONS In and for the purposes of this agreement, (a) "Equipment" means the energy conservation equipment designed to reduce energy consumption at the Premises having a minimum cost to Enershare of $83,000.00, a list of which will be delivered to the Owner after the execution of this contract; (b) "Base year energy budget" means the total of the agreed upon annual consumption levels for hydro and natural gas comprising the Premises listed in Schedule B attached hereto and forming part of this agreement and as adjusted by the published prices for those energy sources at the time of the execution of this agreement and adjusted from time to time in accordance with the terms of this agreement; (c) "Hereto", "herein" and words of similar import have reference to this agreement as a whole and not to any particular section, subsection or clause of this agreement; (d) In referring to any party herein, the singular includes the plural, the plural the singular and any gender, any other gender; (e) Headings are included for convenience and reference only and shall not affect the interpretation hereof. COMMENCEMENT DATE AND TERM OF AGREEMENT (t) The commencement date for this agreement shall be the first day of the month following the date of execution of this agreement. (z) This agreement shall be in effect for the period of seven years from the commencement date and the Owner shall have the right to purchase the equipment during the currency of this agreement in accordance with the purchase option provision as set forth in section 20. EQUIPMENT INSTALLATION (1) Enershare at its own expense shall obtain and install the equipment in accordance with its working drawings or plans. (2) The Owner shall have access to all of Enershare's working drawings or other plans for the installation of the equipment. (3) In the event that the Owner requires an alternative manner of installa- tion, the Owner shall pay all costs of the installation in excess of the costs of Enershare's proposed installation of the equipment. (4) Enershare shall obtain all necessary licences for the installation of the equipment and shall comply with all municipal and provincial legislation pertaining to the installation of the equipment or arising from the thermal management services to be provided under this agreement. Enershare's subcontractors shall be properly licensed contractors by the appropriate licensing authority and shall have proper coverage under the Workers' Compensation Act for their employees. OWNERSHIP OF THE EQUIPMENT Enershare shall own the equipment throughout the term of this agreement unless it is purchased by the Owner pursuant to section 20 hereof. The equipment shall remain the personal property of Enershare and no item thereof shall become a fixture of the Premises notwithstanding its installation on or attach- ment to real property or to an improvement located thereon. Plates or markings may be affixed to or placed on the equipment by Enershare to indicate its ownership and Enershare shall have the right to register its interest under the -2 - Personal Property Security Act and under any other legislation that Enershare deems necessary or advisable. UPGRADING OF EQUIPMENT Enershare shall at all times have the right to replace or upgrade any item equipment. of SERVICES BY ENERSHARE Enershare shall provide all necessary thermal management services, including the payment of utility bills under section 9 and the monitoring of and adjust- ments and repairs to the equipment. The Owner shall incur no costs for such service, repairs, adjustments and monitoring, except when the need for mainte- nance or repairs principally arises due to the negligence or willful misconduct of the Owner or any employee or agent thereof; in such case, the Owner shall pay for the actual cost of the maintenance or repair. Notwithstanding the foregoing the Owner shall be allowed to maintain and repair the equipment so long as the Owner has the express written permission of Enershare to do so. All parts and improvements of any kind effected or affixed to the equipment by Enershare shall belong to and become the property of Enershare. REPAIRS Enershare shall commence to provide any necessary repairs to the equipment within a reasonable time after being notified of any malfunction, and shah complete the repairs within a twenty-four hour period. ACCESS Enershare, its servants and agents, shall have reasonable access to the Prem- ises for the purpose of installation of the equipment and for the purpose of performing its obligations herein. PAYMENT OF UTILITY BILLS (1) Enershare shall pay all applicable monthly utility bills submitted to the Owner by Consumers' Gas, Pickering Hydro, and any other alternate energy suppliers or their successors pertaining to the Premises and which have been included in the base year energy budget. Subject to the Owner paying Enershare~s compensation within the time allotted in section 18 herein, Enershare shall be liable for all penalties or interest owing in respect of any late payment of a utility bill. Enershare shall provide the Owner with photocopies of all receipts of utility bills or other evidence of payment satisfactory to the Owner. In the event that the Owner is late in making payment of the compensation referred to in section 18 herein to Enershare, Enershare shall not be obliged to pay the utility bills until full payment of the monthly compensation is received from the Owner including an additional sum to cover penalties incurred by Enershare. When reading dates for utility bills are after the commencement date of this agreement or after the date of termination of this agreement, bills for those dates falling due after the commencement date or the date of ter- mination will be prorated for that period after the commencement date or prior to the date of termination for payment by Enershare. (z) As security for payment by Enershare of the the Owner's utility bills, Enershare agrees for each year during the term of this agreement to provide the Owner with an irrevocable Letter of Credit in the form an- nexed hereto as Schedule E, which Letter of Credit shall secure the amount of $50,000,00. - 3 - 10. INSURANCE BY ENERSHARE fl) At all times during the term of this agreement, Enershare shall maintain in full force and effect at its own expense, a public liability and property damage insurance po]icy such as will protect Enershare and the Owner from any claims for damages for personal injury inc]udlng death and from claims for property damage including loss of use which may arise from Enershare's installation of the equipment or any rep]aced, upgraded or altered equipment and the provision of services under this agreement. (2) The Owner shall be shown on the policy as an additional named insured in respect of Enershare's negligence or misconduct and such insurance shall be in a minimum amount of one million dollars ($1,000,000.00). Upon execution of this agreement, Enershare shall provide to the Owner evi- dence of the existence of such a policy and the policy shall be satisfac- tory to the Owner in respect of form and issuer, and shall state that it will not be changed or cancelled without thirty days prior written notice to the Owner. 11. INSURANCE BY THE OWNER (1) At all times during the term of this agreement, the Owner shall maintain in full force and effect, at its expense, a broad boiler and machinery insurance po]icy on a blanket repair and replacement basis with limits for each accident in an amount not less than the full replacement cost of the boiler, pressure vessels, air conditioning equipment and miscellaneous electrical apparatus owned or operated by Enershare or the Owner or both. (2) Enershare shall be shown on the boiler and machinery policy as an addi- tional named insured. Upon execution of this agreement, the Owner shall provide to Enershare evidence of the existence of such policy. The policy shall be satisfactory to Enershare in respect of form and issuer and shall state that it will not be changed or cancelled without thirty days prior written notice to Enershare. (3) At all times during the term of this agreement, the Owner shall maintain in full force and effect, at its expense, a public liability and property damage insurance policy, such as will protect Enershare and the Owner from any claims for damages for personal injury including death, and from claims for property damage, including loss of use, which may arise from the Owner's operation of the equipment, or any replaced, upgraded or altered equipment, or its operation of the Premises, or both. (4) Enershare shall be shown on the policy as an additional named insured in respect of the Owner's negligence or misconduct and such insurance shall be in a minimum amount of $1,000,000.00. (5) Upon execution of this agreement, the Owner shall provide to Enershare evidence of the existence of such a policy. The policy shall be satisfactory to Enershare in respect of form and issuer, and shall state that it will not be changed or cancelled without thirty days prior notice to Enershare. 12. DAMAGE TO OR DESTRUCTION OF EQUIPMENT (1) If any item of equipment is damaged, destroyed or stolen, as a result of an event which is covered by insurance, Enershare and the Owner will utilize the insurance proceeds to repair or replace the equipment and any deductible required to be paid shall be paid by the party under whose insurance those proceeds are obtained. (z) If the damage or destruction principally arose due to the negligence, willful misconduct, or other default under the terms of the contract by the Owner or any employee or agent of the Owner, Enershare may elect - 4- (~) (4) to have the damaged equipment repaired or replaced at the Owner's expense insofar as insurance proceeds are insufficient. Enershare may elect in writing within thirty days to require the Owner to invest the additional funds needed to repair or replace the equipment provided that the repairs or replacements can and shall be completed within ninety days. Should Enershare not make such an election, Enershare may either, (a) invest the additional funds needed to repair or replace the equip- ment, provided that the repairs or replacements can and shall be completed within ninety days, or (b) terminate this agreement by a notice to the Owner and the pro- visions of section 23 shall apply. Nothing in subsections (1) and (Z) restricts the rights and remedies of Enershare and the Owner under this agreement, particularly but not Hmited to remedies related to destroyed or damaged equipment. 13. DAMAGE TO OR DESTRUCTION OF PREMISES If the Premises are destroyed or damaged, then Enershare shall have the right to terminate this agreement and the provisions of section 23 shah apply. 14. RESPONSIBILITIES OF THE OWNER The Owner shall provide rent-free space satisfactory to the parties for the installation and operation of the equipment and shah be responsible for the day to day operation of the equipment in accordance with the instructions of Enershare. The Owner shall also operate the Premises in accordance with the operating procedures set out in Schedule C attached hereto (hereinafter re- ferred to as the "operating procedures"). The Owner shall maintain the Prem- ises in their current condition subject to normal wear and tear and shall take all necessary steps to ensure the operating condition of all mechanical systems and other energy consuming equipment on the Premises. The Owner shall not move, remove, alter or change in any way the equipment or any parts thereof without prior written notice to Enershare containing sufficient particulars of the change or changes so as to enable Enershare to determine whether a material change as defined in section 19 has occurred. 15. NOTIFICATION TO ENERSHARE (l) The Owner shall notify Enershare by telephone within four hours if it knows of, (a) any material malfunction in the operation of the equipment, or (b) any interruption or alteration of the energy supply to the Prem- ises. (2) The Owner shall notify Enershare forthwith upon its learning of any emergency conditions affecting the equipment. If an emergency condition exists and it is not possible to notify Enershare, then the Owner shall act reasonably to protect the equipment from damage and then notify Enershare as soon as possible of the emergency condition. - 5 - 16. INDEMNIFICATION Each party shall indemnify, defend and hold the other harmless from claims, actions, costs, expenses, damages and liability, including legal fees, arising out of, or connected with, or resulting from the negligence or misconduct of its own employees or agents in connection with its activities within the scope of this agreement and shall also indemnify, defend and hold the other harmless from any claim of any of its own creditors to any right, title or interest in the equipment. 17. COMPENSATION TO ENERSItARE 18. The Owner agrees to pay Enershare an annual amount in twelve equal monthly installments for the installation of the equipment and the pro- vision of its thermal management services described herein. The annual amount shall be equal to the base year energy budget less the guaranteed discount outlined in Schedule D attached hereto and forming part of this agreement. (z) Notwithstanding the above, the base year energy budget and the pay- ments based thereon shall be adjusted from time to time as follows: (a) To reflect any increase in the published energy rates as de- termined by the appropriate utility rate schedules, namely, the rates as published by Consumers~ Gas, Picketing Hydro, or their successors. If during the term of this agreement alternate fuels are substituted for those that were used to establish the base year energy budget, the aforementioned adjustments will be based on the thermal content of the substitute fuel in British Thermal Units (hereinafter called "B.T.U.~s ") prorated to the thermal content of the original fuel in B.T.U,~s. For the purpose of making calculations, the following thermal content values will be used for the fuels presently contemplated to be used: Fuel Thermal Content Natural Gas Electricity lO00 BTU/Cubic Foot 3413 BTU/KWH Enershare will compute the proposed changes to the base year energy budget under this clause as they occur, (b) To reflect any material changes effected and calculated in accor- dance with section 19 of this agreement. (1) Payment of each of the twelve monthly installments shall be due on the first business day of each month. The first payment may be the first day of the month following the date of designation by Enershare as an operational start date following all or part of the installation of the equipment. Enershare will advise the Owner in writing of that date. The monthly installments will be as shown in the base year energy budget or any subsequent adjusted base year energy budget then in effect. (z) A late penalty of two per cent per month shall be payable forthwith on any balance not received by Enershare within ten days of the due date, such penalty to be computed from the due date to the date payment is received. 19. MATERIAL CHANGES IN USE OF PREMISES (i) The Owner shall deliver to Enershare a notice within seven days of any actual or intended material change in the use of a building comprising the Premises occurring after execution of this agreement. A "material change" shall mean any one of the following changes affecting energy use at the particular building comprising the Premises which reasonably could be expected to increase the amount of energy used at the particular building by more than three per cent: 6 (2) (3) (a) A deterioration of the building structure or envelope from its current condition, save and except for reasonable wear and tear; (b) The types of equipment used on the Premises; or (c) Other conditions affecting energy use on the Premises such as an increase in the degree days of heating or cooling or both. Upon delivery of a notice describing a material change or upon learning of a material change, Enershare shall calculate the proposed adjustment to the base year energy budget refiecting the energy cost of the material change. As a result of an adjustment to the base year energy budget, payment for Enershare's services shall be increased in an amount equal to the increase pro rata. The new payment structure shall apply from the date of change of the base year energy budget and the payment figure shall be adjusted accordingly from that date. 20. PURCHASE OPTION The Owner may at any time terminate this agreement and acquire all the equip- ment by paying the termination value of the agreement. The Owner may exer- cise this option by delivering a notice thereof to Enershare not less than ninety days prior to the date the Owner shall select to acquire the equipment. Such date shall be named in the notice. The termination value shah be as follows: In the first year - $261,472.88 In the second year - $221,396.80 In the third year - $180,068.31 In the fourth year - $142,094.51 In the fifth year - $106,550.08 In the sixth year - $ 69,771.31 In the seventh year - $ 35,364.99 21. EVENTS OF DEFAULT BY THE OWNER Each of the following events or conditions shall constitute an "event of default" by the Owner: (a) any failure of the Owner to pay Enershare an installment required by section 18 herein for a period of more than thirty days after the due date; (b) failure by the Owner to perform or comply with any other term and condition of this agreement including breach of any other covenant con- tained herein provided that such failure continues for fifteen days after notice to the Owner demanding that such failure to perform be cured; (c) any representation or warranty furnished by the Owner in this agreement which was knowingly false or misleading in any material respect when made, provided that the Owner is made aware of the representation or warranty so relied on by Enershare and Enershare provides to the Owner a period of ten days to remedy the effect of the false or misleading rep- resentation or warranty; (d) levy of a writ of execution or order of attachment, against the Premises or the Owner's machinery, equipment or fixtures located thereon, unless it is released or satisfied within thirty days of such levy. - 7 - 22. EVENTS OF DEFAULT BY ENERSHARE Each of the following events or conditions shall constitute an "event of default" by Enershare: (a) the failure by Enershare to install all of the equipment herein; (b) provided the Owner has made payment to Enershare as required by section 18, failure by Enershare to make the payment of utility bill pur- suant to section 9 herein and the utility bill remains in arrears for a period in excess of thirty days; (c) any representation or warranty furnished by Enershare in this agreement which was knowingly false or misleading in any material respect when made; provided that Enershare is made aware of the representation or warranty so relied on by the Owner and the Owner provides to Enershare a period of ten days to remedy the effect of the false or misleading rep- resentation or warranty; (d) levy of a writ of execution or order of attachment against the equipment, unless it is released or satisfied within thirty days of such a levy. REMEDIES ON DEFAULT OF THE OWNER In the event of a default by the Owner, Enershare shall be entitled to provide the Owner with a written notice detailing the default and requiring the Owner within fifteen days from date of receipt of such notice to cure such default, failing which Enershare shall be entitled to: (a) exercise all remedies available at law or at equity or other appropriate proceedings including bringing an action or actions for recovery of amounts due and unpaid by the Owner, or damages for the equipment damaged or destroyed due to the negligence or willful misconduct of the Owner or both, which shall include all costs and expenses reasonably incurred in the exercise of this remedy, including legal fees, or for specific performance or both; or (b) terminate this agreement by delivery of a notice declaring termination, and enter the Premises to dismantle and remove its equipment from the Premises; or (c) payment of the sum of $41,500.00 as liquidated damages and not as a penalty in addition to any other remedies available at ]aw or at equity; or (d) any combination of the above. 24. REMEDIES ON DEFAULT OF ENERSHARE In the event of a default by Enershare, the Owner shall be entitled to provide Enershare with a written notice detailing the default and requiring Enershare within fifteen days from date of receipt of such notice to cure such default, failing which the Owner shall be entitled to: (a) exercise all remedies available at law or at equity or other appropriate proceedings including bringing an action or actions for recovery of amounts paid to Enershare or damages for the damage or destruction of the Premises due to the negligence or willful misconduct of Enershare, or both, which shall include all costs, expenses reasonably incurred in the exercise of this remedy, including legal fees, or for specific performance, or both; or (b) terminate this agreement by delivery o£ a notice declaring termination, requiring Enershare to within fifteen business days from the date of receipt of such notice, dismantle and remove equipment from the ZS. Premises, failing which, the Owner may dismantle and remove the equipment at Enershare's expense~ or (c) exercise its option under section 20 to purchase the equipment and termi- nate this agreement in accordance with that paragraph; or (d) any combination of the above, except a combination including both (b) and (c). REPRESENTATIONS AND WARRANTIES OF THE OWNER The Owner warrants and represents to Enershare that: (a) it has all requisite power, authorlty, licences, permits and franchises, corporate or otherwise to execute and deliver this agreement in perfor- mance of its obligations hereunder; (b) execution, delivery and performance of this agreement will not result in a breach or violation or constitute a default under any agreement, lease or instrument to which it is a party or by which it or its properties may be bound or affected; (c) the Owner intends to continue to use the Premises in a manner similar to its present use except as disclosed by the Owner to Enershare in writing; (d) the Owner has provided Enershare with all records heretofore requested by Enershare and the information set forth subsequently provided pursu- ant to this agreement will be, to the best of the Owner's knowledge, true and accurate in all material aspects except as has been disclosed by the Owner in writing; (e) its execution, delivery, and performance of this agreement has been duly authorized. 26. REPRESENTATIONS AND WARRANTIES OF ENERSHARE Enershare warrants and represents to the Owner that: (a) it has all requisite power, authority, licences, permits and franchises, corporate or otherwise, to execute and deliver this agreement and perform its obligations hereunder; (b) its execution, delivery, and performance of this agreement has been duly authorized; (c) it has not received any notice, nor to the best of its knowledge is there pending or threatened any notice, or any violation of any applicable laws, ordinances, regulations, rules, decrees, awards, permits or orders which would materially adversely affect its ability to perform hereunder; (d) the equipment provided herein has been newly manufactured, and upon installation on the Premises will be in good working order and ready to 27. OWNERSHIP OF EQUIPMENT UPON EXPIRATION OF THIS AGREEMENT Upon the expiration of this agreement, Enershare shall charge one dollar to the Owner to transfer all the equipment to the Owner free and clear of all encum- brances, and the Owner shall then be responsible for all monitoring in con- nection therewith, and save Enershare free of any further responsibilities for its operation, monitoring, or maintenance. -9- 28. COMPLIANCE WITH LAW AND STANDARD PRACTICES Enershare will perform its obligations hereunder in compliance with any and laws. a]l 29. ONTARIO MUNICIPAL BOARD The entering into of this agreement by the Owner requires the approval of the Ontario Municipal Board failing which this agreement shall be null and void. 31. NOTICE AND CHANGE OF ADDRESS All notices to be given by either party to the other shall be in writing and must be either delivered or mailed by registered or certified mail, return re- ceipt requested, addressed as follows: To Enershare: Enershare Technologies Inc. 167 Dolomite Drive Downsview, Ontario M3J 2N1 Attention: Mr. Bruce Robertson To the Owner: Attention: The Corporation of the Town of Pickering 1710 Kingston Road Pickering, Ontario LIV 1C7 Town Clerk or to such other addresses as either party may hereinafter designate by a notice to the other. Notices are deemed to be received on the day they are delivered or five days after registered or certified mailing. 32. INTERPRETATION This agreement and the construction and enforceability thereof shall be inter- preted under the laws of the Province of Ontario. 33. STRICT PERFORMANCE The failure of either Enershare or the Owner to insist upon the strict perfor- mance of the terms and conditions hereof shall not constitute or be construed as a waiver or relinquishment of either party's rights to thereafter enforce the same in accordance with this agreement in the event of a continuing or subse- quent default on the part of either party. 34. ASSIGNMENT This agreement is not assignable by either party without the written permission of the other party save and except that the compensation payable to Enershare hereunder may be assigned. 35. NON-PERFORMANCE Neither party shall be held responsible for damages caused by delay or failure to perform its obligations hereunder when such delay or failure is due to fires, strike, floods, acts of God, lawful acts of public authorities, or delays which cannot reasonably be foreseen or provided against. - 10- 36. COMPLETE AGREEMENT This agreement, when executed, together with Schedules A, B, C, D and E attached hereto shall constitute the entire agreement between the parties and may not be amended, modified or terminated except as provided for herein or by written agreement of the parties. 37. FURTHER DOCUMENTS The parties shall execute and deliver all documents and perform all further actions that may be reasonably necessary under the provisions of this agree- ment. IN WITNESS WHEREOF Enershare and the Owner have hereunder affixed their respec- tive corporate seals attested by the hands of their authorized signing officers. SIGNED, SEALED & DELIVERED ENERSHARE TECHNOLOGIES INC. Bruce Robertson, President , Secretary-Treasurer THE CORPORATION OF THE TOWN OF PICKERING John E. Anderson, Mayor Bruce Taylor, Clerk - 11 - SCHEDULE A PICKERING RECREATION COMPLEX 1867 VALLEY FARM ROAD PICKERING, ONTARIO A-1 SCHEDULE B Month JAN FEB MAR APR MAY JUNE JULY AUG SEPT OCT NOV DEC TOTALS (KW) 700 700 700 700 1,000 1,000 1,O00 1,000 1,000 700 700 700 HYDRO C on sump tion ($) 346 000 332 900 395 300 305 100 335 600 334,600 318 100 305,000 473,000 410 000 364,500 642000 Costs ($) NATURAL GAS Consumption Costs (MCF) ($) TOTALS ($) 14,779 2,017 10,144 24,923 14,318 2,162 10,869 25,186 16,514 1,537 7,746 24,260 13,339 1,729 8,705 22,044 15,523 1,369 6,775 22,298 15,487 1,071 5,316 20,803 14,907 1,033 5,129 20,036 14,446 961 4,777 19,222 20,359 1,057 5,247 25,606 17,032 1,393 6,893 23,924 15,430 1,585 7,985 23,415 25,198 1,777 8,945 34,143 4,562,100 197,331 17,691 88,530 285,861 B-1 SCHEDULE C For the purposes of this thermal management services agreement the Owner agrees: 1. ICE MAKING (l) To measure the ice thickness reduced from the present depth to an ice depth of 3/4" minimum and 1' maximum; thereafter to be maintained at these depth tolerances, or at an ice thickness mutually agreed to by the Owner and Enershare; To measure the ice depth at the highest structural point in the ice pad should structural deviations caused by frost heave occur; (3) To have the amount of flood water reduced to no more than eighty-five (85) imperial gallons per flood; (4) That the temperature of the flood water will be no greater than 60.0 degrees celsius (140 degrees fahrenheit), measured at the discharge supply side of the pressure vessel; (5) To allow the temperature controller to be calibrated and sealed to produce a temperature no greater than 140 degrees fahrenheit; (6) To dump the scraped snow outside the building unless otherwise agreed roi (7) That the water outlets to be provided at the resurfaclng machine are: (a) (b) cold municipal water, and heated municipal water; That all other water sources and taps will be removed from the resurfac- ing machine room by and at the sole cost of Enershare; (9) That washing of the resurfacing machine, ice conditioner and other ma- chine parts will be done with cold water or heated water; (10) To the installation by and at the sole cost of Enershare of push buttons in the resurfacing room for selecting resurfacing water; (11) To keep the resurfacing machine conditioner cutting blades sharp; (12) To utilize the new ice-making techniques demonstrated by Enershare; (13) To the calibration and sealing by and at the sole cost of Enershare of the temperature controls to prevent tampering. COMPRESSOR CONTROL (1) That the control of the refrigeration compressors for ice making is assumed by a computer control system; (2) That sensors are installed in the brine return, brine supply line and outside air by and at the sole cost of Enershare; (3) To the installation by and at the sole cost of Enershare of a hand-off-auto switch for motor control; (4) To ensure that the hand-off-auto switch is always in the auto position; (5) To place the switch in the hand position and notify Enershare immediately should the computer control system fail; C-1 SCHEDULE C (Cont'd) (6) To change the compressor control sequence to the following: (a) On a call for cooling, the smallest compressor would start first. On a further call for cooling the small compressor would stop and the next larger would commence operation. Should the refrig- eration requirements still not be satisfied then the smaller com- pressor would restart and both would operate until the cooling requirements are satisfied. As the cooling requirements are satisfied the above sequence would reverse under the control of the electronic control system; (b) In the installations where there are more than two compressors the electronic control system will select the optimum configuration of compressors to satisfy cooling requirements; (c) The electronic control system for the compressors will measure the brine temperature, and outdoor air and calculate the optimum temperature for the ice surface; and (d) During unoccupied night hours of the ice surface, the entire refrigeration system shall be disabled. The electronic control system will calculate the optimum time to energize the refrig- eration compressors to reduce the floor temperature. HOT WATER (1) That the temperature for showers, lavatories and general maintenance is to be no greater than 115 degrees fahrenheit (46.1 degrees celsius) measured at the discharge side of the heating vessel; (2) To the calibration and sealing by and at the sols cost of Enershare of the temperature controls to prevent tampering. GENERAL AREA LIGHTING AND SERVICE AREA LIGHTING (1) That the following light levels are to be maintained: (2) (a) (b) (c) (d) (e) (f) 10 - 30 foot candles - shipping and receiving areas, 10 - 30 foot candles - corridors and stairwells, 10 - 30 foot candles - storage rooms and warehouses, 60 - 70 foot candles - office desk working levels, 10 - 20 foot candles - washrooms, 30 - 60 foot candles - snack bars and meeting rooms; To continue to clean the lamps and lenses of all fluorescent ensure that these light levels are maintained. fixtures to SPACE HEATING (1) That the temperatures to be maintained for comfort levels are: (a) Heating - (i) 68-70 degrees F - occupied - office, (ii) 55 degrees F - unoccupied - office, (iii) 82 degrees F - pool water, (iv) 84 degrees F - pool air temperature - occupied; (b) Cooling - (i) 73-75 degrees F - occupied, measured at the temperature sensor or thermostat whichever being case. the C-2 SCHEDULE C (Cont'd) COMPRESSOR JACKET WATER RECIRCULATING SYSTEM (1) To allow the cooling water system for the refrigeration compressors to be recycled and regulated to a temperature no greater than c)5-100 degrees fahrenheit. Municipa! water shall be used as make-up to maintain the desired water temperature; (2) To provide the necessary water treatment chemicals for the water recircu- lation system. C-3 SCHEDULE D Year ] Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 7% 8% 9% 9% 10% 10% D-1 SCHEDULE E LETTER OF CREDIT The Corporation of the Town of Pickering ]710 Kingston Road Picketing, Ontario L]V 1C7 Dear Sire We hereby authorize you to draw on [name of bank[, [address of bank], for account of Enershare Technologies Inc. up to an aggregate amount of Fifty Thousand Dollars ($50,000.00) available by drafts at sight for 100% of demand as follows,' Pursuant to the request of our customer, Enershare Technologies Inc., we, [name of bankl, ]address of bank], hereby establish and give to you an irrevocable Letter of Credit in your favour in the total amount of Fifty Thousand Dollars ($50,000.00) which may be drawn on by you at any time and from time to time upon written demand for payment made upon us by you which demand we shall honour without enquiring whether you have a right as between yourself and our customer to make such demand, and without recognizing any claim of our customer. Provided, however, that you are to deliver to [name of bank], [address of bank], at such time as a written demand for payment is made upon us a certificate signed by you agreeing or confirming that monies drawn pursuant to this Letter of Credit are payable to you with reference to your file regarding an Agreement dated the 15th day of June, 1986, between Enershare Technologies Inc. and The Corporation of the Town of Pickering; this Letter of Credit is given as security for the payments referred to in Section 9 of that Agreement. Partial drawings are permitted. This Letter of Credit will continue up to and including the day of , 19 , and will expire at the close of business on that date and you may call for payment of the full amount outstanding under this Letter of Credit at any time prior to that date should this Letter of Credit not be renewed, We agree to advise you in writing on or before the day of , 19 , as to whether this Letter of Credit has been or will be renewed by us. In case we fail to so advise, this Letter of Credit shall be deemed to have been renewed for a period of one year subject to the same terms and conditions. We hereby covenant with drawers, endorsers, and Bona fide holders of drafts drawn under and in accordance with the terms of this credit that such drafts will be duly honoured if drawn and negotiated on or before the day of , 19 The drafts drawn under this credit are to be endorsed hereon and shall state on their face that they are drawn under [name of bank], [address of bankl. DATED this day of , 19 E-I SCHEDULE E (Cont'd) Instructions 1. Letter of Credit must be typed on bank letterhead. 2. Information required in square brackets must be provided where indicated, without brackets. The second date in the fifth paragraph musl be at least 30 days but no more than 60 days prior to the first date in that paragraph. The date in the sixth paragraph must be the same as the first date in the fifth paragraph. Bank signatories must show name, printed or typed, and title, in addition to signature. E-2