Unassociated Document


     

    Exhibit
10.16


    


    This
Twenty-Fifth Amendment to District Cooling System Use Agreement (the
"Twenty-Fifth Amendment"), dated as of October 1, 2008 (the "Effective Date") by
and between the City of Chicago, Illinois (the "City"), a home rule unit and
municipality under Article VII of the Constitution of the State of Illinois, and
Thermal Chicago Corporation, an Illinois corporation (the "Grantee").


    


    WITNESSETH:

     

    WHEREAS, the City and the
Grantee have entered into that certain District Cooling System Use Agreement
dated as of October 1, 1994 (the "Original Agreement"), as heretofore amended
(the "Current Agreement"), which grants to the Grantee (and its successors in
interest) the non-exclusive right to use certain public ways of the City to
construct, operate and maintain a district cooling system (the "System");
and

    


    WHEREAS, Exhibit 1 to the
Current Agreement describes the "Current Distribution Facilities" (as such term
is defined in the Current Agreement) for the Grantee's System; and 

     

    WHEREAS, Exhibit 2 to the
Current Agreement provides the Location Map of the Grantee's System, including
the Current Distribution Facilities; and 

    


    WHEREAS, Grantee wishes to
amend the Expiration Date of the Current Agreement to extend
the termination date from December 31, 2020 to December 31, 2040;
and

    


    WHEREAS, the City agrees to
extend such Termination Date to December 31, 2040 in consideration of an
increased in the use fee from 3.0% of Grantee's Total Gross Billings to 3.5% of Grantee's Gross Billings
commencing on January 1, 2009 and another .5% increase of Grantee's Gross
Billings effective January 1,
2014 and the City reserves the right
after considering and analyzing business and economic realities to increase the
General Compensation by no more than 2% of Grantee's Gross Billings in 2024 and
in any event not to exceed in the aggregate 6% of Grantee's Gross Billings
throughout the term of the Current Agreement; and 

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    WHEREAS, in consideration for
the extension of the Initial Expiration Date of the Current Agreement, Grantee
agrees to commit its internal expertise (limited to $10,000) to analyze the
feasibility of deep lake cooling option for cooling commercial and residential
buildings and Grantee will commit $50,000 for energy efficiency in buildings
under the City Green Business Challenge Program;

    


    WHEREAS, the City Council of
the City on August 25, 2008, adopted an ordinance authorizing and approving
execution of a Twenty-Fifth Amendment to the Current Agreement in substantially
the form of this Twenty-Fifth Amendment, (the "Ordinance"); and

    


    WHEREAS, the City and the
Grantee now desire to amend the Current Agreement subject
to the terms and conditions set forth below;

    


    NOW,
THEREFORE,

     

    It is
agreed by the parties hereto as follows:

     

    Section
1. The above recitals are
expressly incorporated herein and made a part of this Twenty-Fifth Amendment by
reference as though fully set forth herein. The capitalized terms not otherwise
defined herein shall have the meanings set forth in the Current Agreement.


    


    Section
2. As of the Effective Date of this Twenty-Fifth Amendment, the Expiration
Date of
the Current Agreement is extended to December 31, 2040. 

    


    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    
    

    Section
3. The Grantee represents that, to the best of its knowledge, no member of the
governing body of the City and no other official, officer, agent or employee of
the City is employed by the Grantee or has a personal financial or economic
interest directly or indirectly in this Twenty-third Amendment or any contract
or subcontract resulting therefrom or in the privileges to be granted hereunder
except as may be permitted in writing by the Board of Ethics established
pursuant to (Chapter 2-156) of the Municipal Code of Chicago (the "Code"). No
payment, gratuity or offer of employment shall be made in connection with this
Nineteenth Amendment by or on behalf of any contractors to the Grantee or higher
tier subcontractors or anyone associated therewith, as an inducement for the
award of contracts, subcontracts or orders. Any agreement entered into,
negotiated or performed in violation of any of the provisions of said Chapter
2-156 shall be voidable as to the City.

    


    Section
4. Neither the Grantee nor its contractors shall be in violation of the
provisions of Section 2-92-320, Chapter 2-92 of the Code. In connection
herewith, the Grantee has executed the applicable Certification required under
the Illinois Criminal Code, 720 ILCS 5/33-11 (1994 State Bar Edition) and under
the Illinois Municipal Code, 65 lLCS 5/1-1 et seq. (1994 State Bar Edition).


    


    Section
5. It shall be the duty of the Grantee, all contractors, all consultants, and
all officers, directors, agents, partners, and employees of the Grantee to
cooperate with the Inspector General in any investigation or hearing undertaken
pursuant to Chapter 2-56 of the Code. The Grantee shall inform all its
contractors of the provision and require understanding and compliance herewith.


    


    Section
6. The Grantee has provided copies of its latest articles of incorporation and
bylaws and its certification of good standing from the Office of the Secretary
of State of Illinois. The Grantee has provided the City with the Disclosure of
Ownership Interest Affidavit for the Grantee and its direct and indirect
corporate parents. 

    


    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    Section
7. If the Grantee conducts any business operations in Northern Ireland, it is
hereby required that the Grantee make all reasonable and good faith efforts to
conduct any such business operations in Northern Ireland in accordance with the
MacBride Principles for Northern Ireland as defined in Illinois Public Act
85-1390 (1988 III. Laws 3220). 

    


    Section
8. Pursuant to Section 2-156-030(b) of the Municipal Code of the City of
Chicago, it is illegal for any elected official of the city, or any person
acting at the direction of such official, to contact, either orally or in
writing, any other city official or employee with respect to any matter
involving any person with whom the elected official has a business relationship,
or to participate in any discussion in any city council committee hearing or in
any city council meeting or to vote in any discussion in any city council
meeting hearing or in any city council meeting or to vote on any matter
involving the person with whom an elected official has a business relationship.
Violation of Section 2-156-030(b) by any elected official with respect to this
Twenty-Fifth Amendment shall be grounds for termination of the Current Agreement
and this Twenty-Fifth Amendment. The term business relationship is defined as
set forth in Section 2-156-080 of the Code. 

    


    Section
2-156-080 defines a "business relationship" as any contractual or other private
business dealing of an official, or his or her spouse, or of any entity in which
an official or his or her spouse has a financial interest, with a person or
entity which entitles an official to compensation or payment in the amount of
$2,500 or more in a calendar year; provided, however, a financial interest shall
not include: (i) any ownership through purchase at fair market value or
inheritance of less than one percent of the share of a corporation, or any
corporate subsidiary, parent of affiliate thereof, regardless of the value of or
dividends of such shares, if such shares are registered on a securities exchange
pursuant to the Securities Exchange Act of 1934, as amended; (ii) the authorized
compensation paid to an official or employee for his or employment; (iii) any
economic benefit provided equally to all residents of the city; (iv) a time or
demand deposit in a financial institution; or (v) an endowment or insurance
policy or annuity contract purchased from an insurance company. 

    
 

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    A
"contractual or other private business dealing" shall not include any employment
relationship of an official's spouse with an entity when such spouse has no
discretion concerning or input relating to the relationship between that entity
and the City. 

    


    Section
9. Except as expressly modified in this Twenty-Fifth Amendment, all other terms
covenants and conditions in the Current Agreement (including exhibits and
attachments) remain unchanged and all affidavits, certificates and
representations in the Current Agreement (including exhibits and attachments)
are deemed reaffirmed as if made as of the date hereof. 

    


    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

    
    

    IN WITNESS WHEREOF, the City has caused this
Twenty-Fifth Amendment to be duly executed in its name and behalf as of the date
first written by its Commissioner of the Department of Environment, its
Executive Director of the Department of Business and Licensing Affairs and its
Commissioner of the Department of Transportation and the Grantee has signed and
sealed the same on or as of the day and year first written. 

    


    (SEAL)

    
    

    
      
        
          
            
              	 	CITY
      OF CHICAGO	 
	 	 	 	 
	
                        

                    	
                      By:
      

                    	  	 
	City
      Clerk	Title:	Commissioner
      of the 
Department of Environment	 


            

          

        

      

    

     

    
      
        
          
            
              
                
                  	 	 	 
	
                           

                        	
                          By:
      

                        	  	 
	 	Title:	Executive
      Director of the 
Department of Business and 
Licensing
    Affairs	 


                

              

            

          

        

      

      
         

        
          
            
              
                	 	 	 
	
                         

                      	
                        By:
      

                      	  	 
	 	Title:	Commissioner
      of the 
Department of Transportation	 
	 	 	 	 
	 	 	 	 


              

            

          

        

         

        
          Reviewed
as to form

          and
legality:

        

        
          
            
              	 	 	 	 	 
	
                        

                    	 	 	
                       

                    	 
	
                      
                        Assistant
      Corporation Counsel

                      

                    	 	 	
                       

                    	 
	
                      
                        or
      Senior Counsel

                      

                    	 	 	
                       

                    	 


            

          

        

         

        
          
            
              
                
                  
                    	ATTEST:	THERMAL
      CHICAGO CORPORATION	 
	 	 	 	 
	
                             

                          	
                            By:
      

                          	  	 
	 	Title:	President	 


                  

                

              

            

          

           

        

         

        
          
            
            

          

          
            6