TE_M_-_Contract_for_Sale_of_Utilities.doc

Technical Exhibit M Contract for the Sale of Utilities

CONTRACT FOR SALE OF UTILITIES SERVICES

for use of this form, see AR 420-41, the proponent agency is the Office of the Chief of Engineers

Contract No. _________________________________________

Estimated Annual

Cost to Purchaser $_________________________________________

THIS CONTRACT, entered into this ___________________day of _________________19________by and between the UNITED STATES OF AMERICA (hereinafter called the ‘Government’), represented by the Utilities Services/Sales Officer executing this contract and

(Hereinafter called the ‘Purchaser’)

WITNESSETH THAT:

WHEREAS, the Government has established an __________________________________________________________________________________ near___________________________________________________________________________________________________________________________ known as______________________________________________________________________________________________________________________ and owns, maintains, and operates facilities for the furnishing of __________________________________________________________________

__________________________________________________________________ services; and

WHEREAS, the Purchaser desires to obtain________________________________________________________________________________ services from the Government, as required for___________________________________________________________________________________________ and which cannot be readily obtained from any other source; and

WHEREAS, construction of facilities in connection with the sale of such services to the Purchaser will not hinder the construction of public or private utility services facilities of a like nature:

WHEREAS, PURSUANT TO 10 U. S. C. 2481 the Government is authorized to sell utilities services required by the Purchaser;

NOW, THEREFORE, in consideration of the premises and the mutual agreement herein contained, to be performed by the parties hereto respectively, it is agreed as follows:

GENERAL PROVISIONS

1. SERVICES TO BE RENDERED. From and after the effective date of this contract, the Government will furnish, subject to the limitations hereinafter provided, and the Purchaser will receive and pay for such utilities services as described in Special Provisions ________________________________________________________________________________ attached hereto and made a part hereof.

2.

PAYMENTS. For and in consideration of the performance of the stipulations of this contract, the Purchaser shall pay the Government for services herein contracted for, at the rates and under the terms and conditions set forth in attached Special Provisions.

3.

USE OF SERVICE. The Government, by reason of this contract, is not obligated to permanently supply the Purchaser with utilities services. The services described herein are temporarily supplied as an accommodation to Purchaser as the Government services are presently available, services are not otherwise readily obtainable by the Purchaser, and the furnishing of such services under the existing conditions is deemed to be in the public interest. Purchaser’s use of such services is limited to such time as services can be supplied by the Government as surplus to its own needs, the Government has facilities and personnel available to supply the services and the services are not readily available to the Purchaser from another source. Purchaser shall use the services provided herein in such manner as not to in any way disrupt or interfere with the requirements of the Government or any other Purchaser that may be served by the Government. Such services shall be for use by Purchaser and shall not be purchased for resale.

4.

RATES AND CHARGES. The rates for services to be charged the Purchaser located on an installation shall be the cost to the Government of supplying the services (Rate B), including operation and maintenance costs, losses, capital and administrative overhead charges. The rates for services to be charged the Purchaser located off of an installation shall be the local prevailing rates (LPR), if any, for similar services, provided that the rates shall at all times produce a revenue which is not less than the cost to the Government of supplying the services (Rate B), including operation and maintenance costs, losses, capital and administrative overhead charges.

5.

CHANGE OF RATES. If during the life of this contract there should be an appreciable change in the cost to the Government or in the applicable local prevailing rates, the contract rates set forth herein will be adjusted as required to conform therewith and the Government agrees to furnish, subject to the conditions set forth herein, and the Purchaser agrees to take and pay for, such services at the adjusted rates from and after the date when such adjusted rates are made effective. The rates and charges applicable to the service or services contemplated herein will be reviewed annually, or more often if necessary, in compliance with the above requirements.

6. LIABILITY. The Purchaser shall hold and save the Government, its officers, agents and employees, harmless from liability of any kind, for or on account of any claim or action that may be asserted in connection with the services furnished under this contract. The Government will not be held liable for failure to provide continuous service and will not guarantee quality or quantity of service to be supplied nor will the Government be made liable for termination of services.

FORM 2099-R(This form is computer generated)

INTERIM REVISION

7.

TERMINATION. Services under this contract may be terminated by either party by written notice not less than thirty days in advance of the effective date of termination, provided that in the event of a national emergency proclaimed by the President, the Government may terminate this contract immediately without such advance notice. It is further mutually agreed that this contract will be terminated at such time as:

a.

The services contemplated herein become readily available from another source, or b.

The installation furnishing said services becomes inactive, or c.

The Government no longer has facilities and/or personnel available to supply the services, or d.

The Government can no longer supply such services as surplus to its own needs.

8.

RECAPTURE. In the event this contract is terminated in accordance with the terms hereof, the Government shall have the right to recapture immediately any utility facility it may have furnished in connection with the sale of any utility service to the Purchaser.

9. FACILITIES TO BE PROVIDED. The Government shall not be obligated in any way for the cost of making connections for Purchaser’s services. Purchaser shall, at Purchaser’s expense, install, maintain and operate all new facilities required for obtaining services, including suitable metering and regulating equipment and service connections to Government’s utility systems. Plans for all such facilities shall be subject to the approval of the Utilities Services/Sales Officer and the installation of such facilities shall be subject to his/her supervision.

10.

LICENSE FOR FACILITIES. The Government hereby grants to the Purchaser a license to enter upon and use a site or sites to be agreed upon between the parties hereto upon which the Purchaser shall install, operate and maintain the Purchaser’s new facilities to be located on Government property for obtaining services; and such license shall continue in effect until termination of this contract. Facilities installed by the Purchaser on a Government installation will be removed promptly at the expense of the Purchaser upon termination of the services contemplated herein. Government land and facilities will be restored to their original condition at the expense of the Purchaser. If the Purchaser fails to so remove such facilities within ninety (90) days, they will be deemed to be abandoned and become Government property.

11. OFFICIALS NOT TO BENEFIT. No member of or delegate to Congress, or resident commissioner, shall be admitted to any share or part of this contract, or to any benefit arising from it. However, this clause does not apply to this contract to the extent that this contract is made with a corporation for the corporation’s general benefit.

12. COVENANT AGAINST CONTINGENT FEES. The Purchaser warrants that no person or selling agency has been employed or retained to solicit or obtain this contract upon an agreement or understanding for a contingent fee, except a bona fide employee or agency. For breach or violation of this warranty, the government shall have the right to annul this contract without liability or, in its discretion, to deduct from the contract price or consideration, or otherwise recover, the full amount of the contingent fee.

“Bona fide agency,” as used in this clause, means an established commercial or selling agency, maintained by a contractor for the purpose of securing business, that neither exerts nor proposes to exert improper influence to solicit or obtain Government contracts nor holds itself out as being able to obtain any Government contract or contracts through improper influence.

“Bona Fide employee.” as used in this clause, means a person employed by a contractor and subject to the contractor’s supervision and control as to time, place, and manner of performance, who neither exerts nor proposes to exert improper influence to solicit or obtain Government contracts nor holds out as being able to obtain Government contract or contracts through improper influence.

“Contingent fee,” as used in this clause, means any commission, percentage, brokerage, or other fee that is contingent upon the success that a person or concern has in securing a Government contract.

“Improper influence,” as used in this clause, means any influences or trends to induce a Government employee or officer to give consideration or to act regarding a Government contract on any basis other than the merits of the matter.

13.

DISPUTES.

a.

This contract is subject to the Contract Disputes Act of 1978 (41 U.S.C. 601-613)(the Act).

b.

Except as provided in the Act, all disputes arising under or relating to this contract shall be resolved under this clause.

c.

“Claim,” as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter of tight, the payment of money in a certain sum, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract. A claim arising under a contract, unlike a claim relating to that contract. Is a claim that can be resolved under a contract clause that provides for the relief sought by the claimant. However, a written demand or written assertion by the Purchaser seeking the payment of money exceeding $50,000 is not a claim under the Act until certified as required by subparagraph D. (1). A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under the Act. The submission may be converted to a claim under the Act, by complying with the submission and certification requirements of this clause, if it is disputed either as to liability or amount or is not acted upon in a reasonable time.

PAGE 2 OF 4 DA FORM 2099-R(This form is computer generated) d.

A claim by the Purchaser shall be made in writing and submitted to the Utilities Services/Sales Officer for a written decision.

A claim by the Government against the Purchaser shall be subject to a written decision by the Utilities Services/Sales Officer.

(1) For Purchaser claims exceeding $50,000, the Purchaser shall submit with the claim a certification that:

{a} The claim is made in good faith.

{b} Supporting data are accurate and complete to the best of the Purchaser’s knowledge and belief.

{c} The amount requested accurately reflects the contract adjustment for which the Purchaser believes the Government is liable.

(2) Certification.

(a) If the Purchaser is an individual, the certification shall be executed by that individual.

(b) If the Purchaser is not an individual, the certification shall be executed by:

A senior company official in charge at the Purchaser’s plant or location involved; or

An officer or general partner of the Purchaser having overall responsibility for the conduct of the Purchaser’s affairs.

e.

For Purchaser claims $50,000 ro less, the Utilities Services/Sales Officer must, if requested in writing by the Purchaser, render a decision within 60 days of the request. For Purchaser-certified claims over &50,000, the Utilities Services/Sales Officer must, within 60 days decide the claim or notify the Purchaser of the date by which the decision will be made.

f.

The Utilities Services/Sales Officer’s decision shall be final unless the Purchaser appeals or files a suit as provided in the Act.

g.

The Government shall pay interest on the amount found due and unpaid from:

(1) The date the Utilities Services/Sales Officer receives the claim (property certified if required), or

(2) The date payment otherwise would be due, if that date is later, until the date of payment. Simple interest on claims shall be paid at the rate fixed by the Secretary of the Treasury as provided in the Act, which is applicable to the period during which the Utilities Services/Sales Officer receives the claim and then at the rate applicable for each 6-month period as fixed by the Treasury Secretary during the pendency of the claim.

h.

The Purchaser shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Utilities Services/Sales Officer.

14.

DEFINITIONS. As used throughout this contract, the following terms shall have the meanings set forth below:

a.

The term “Secretary” means the Secretary, the Under Secretary, or any Assistant Secretary of the Department and the head of the Federal agency; and the term “his duly authorized representative” means any person or persons or board (other than the

Utilities Services/Sales Officer) authorized to act for the Secretary.

b.

The term “Utilities Services/Sales Officer” means the person executing this contract on behalf of the Government, and any other officer or civilian employee who is a properly designated Utilities Services/Sales Officer; and the term includes, except as otherwise provided in this contract, the authorized representative of a Utilities Services/Sales Officer acting within the limits of his/her authority.

15.

TERMS AND CONDITIONS.

a.

Payment not received within 30 days of billing date is subject to a late charge fee of a fluctuating percentage rate for each 30 day period or portion thereof that payment is delayed.

b.

The Purchaser is required to notify the Utilities Services/Sales Officer when their responsibility is transferred ( I. e., PCs, change of responsibility, change of duty position, etc.). This may be done telephonically.

IN WITNESS WHEREOF, the parties hereto have executed this contract as of the day and year first above written.

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PURCHASER

THE UNITED STATES OF AMERICA

By______________________________________________________ By_______________________________________________

(Signature of Purchaser’s Official)

(Signature of Utilities Services/Sales Officer)

(Name of Purchaser’s Official)

(Name of Utilities Services/Sales Officer)

(Purchaser’s Official Title)

(Officer’s Title)

(Purchaser’s Address)

(Officer’s Address)

WITNESS AS TO SIGNATURE OF PURCHASER

(Signature of Witness)

(Name of Witness)

(Witness’ Address)

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Attached to and made a part of Contract NO. ________________________

SPECIAL PROVISIONS A(S)

ELECTRIC SERVICE

For use of this dorm, see AR 420-41 the proponent agency is the Office of the Chief of Engineers

1.

ESTIMATED SERVICE REQUIREMENTS.

Estimated maximum demand __________________________________________Kw

Estimated annual consumption__________________________________________Kwh

(The parties hereto are not obligated to deliver or receive, nor are they restricted to, the above amounts.)

2.

POINT OF DELIVERY. The point of delivery of service shall be:______________________________________________________________

3.

DESCRIPTION OF ELECTRIC SERVICE. The Government will supply ________________________________________________________phase, ___________________________________________________________________wire,___________________________________________________cycle, alternating current at __________________________________________________________________________volts.

4.

RATES. The rates to be charged the Purchaser by the Government for the electric service described herein, are as follows:

5.

METERING AND BILLING. Service will be measured at _________________________________________________________________ volts by

________________________________________________________watt-hour meter(s) and__________________________________________________ demand meter(s) to be furnished, installed and maintained by the Purchaser. The meter(s) will be read by the Utilities Services/Sales Officer, or his or her authorized representative, and bills will be rendered monthly to the Purchaser by the Government. All such bills will be due and payable 15 days after receipt thereof by the Purchaser.

6.

ALTERATIONS AND ADDITIONS:

DA FORM 2101-R(This form is computer generated)

Attached to and made a part of Contract No. ________________________________

SPECIAL PROVISIONS C(S)

WATER SERVICE

For use of this form, see AR 420-41 the proponent agency is the Office of the Chief of Engineers

1.

ESTIMATED REQUIREMENTS.

Estimated maximum Demand______________________________________________________

Estimated annual consumption_____________________________________________________

(The parties hereto are not obligated to deliver or receive, nor are they restricted to, the above amounts.)

2.

POINT OF DELIVERY. The point of delivery of water shall be the point of connection with the government’s water main located at

3.

QUALITY OF WATER. The Government will supply the same quality of potable water as supplied to ____________________________

______________________________________________by means________________________________________________________________________.

4.

RATES. The rates to be charged the Purchaser by the Government for the water service described herein, are as follows:

5.

METERING AND BILLING. Water will be measured by______________________________________________________ inch meter(s) to be furnished, installed and maintained by the Purchaser. The meter(s) will be read by the Utilities Services/Sales Officer, or his or her authorized representative, and bills will be rendered monthly to the Purchaser by the Government. All such bills will be due and payable 15 days after receipt thereof by the Purchaser.

6.

ALTERATIONS AND ADDITIONS:

DA FORM 2103-R(This form is computer generated)

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