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<br />-17- <br />15966623.1 <br />(b) Temporary Capacity Exceedance <br />Should any Agency exceed its Maximum Flow Rate Capacity it will make best efforts to <br />reduce its flows to within its allocated capacity. Capacity exceedance fees will be calculated as <br />follows: <br />(1) First Exceedance: <br />No charge for an Agency that exceeds its Maximum Flow Rate Capacity, based <br />on a 3-hour average, the first time in a Fiscal Year. An Agency’s first exceedance will not <br />exceed twenty-four hours, and after such 24 hour period, any continuing exceedance will be <br />considered a second exceedance. <br />(2) Subsequent Exceedances: <br />Any Agency that exceeds its Maximum Flow Rate Capacity, based on a 3-hour <br />average, for the second and each subsequent exceedance in a Fiscal Year, will be charged <br />$0.005/gallon of exceeded flow. The Authority will calculate an exceedance based on the <br />formula set forth in Schedule D. <br />Notwithstanding the foregoing, any discharge by Union to the Hayward Marsh pursuant <br />to the Hayward Marsh MOU, will be subtracted from Union's total flow for the purposes of <br />determining whether Union has exceeded it Maximum Flow Rate Capacity. All capacity <br />exceedance fees will be applied to, and reduce the total of, the fixed operating costs due from the <br />non-exceeding Agencies' fixed operating costs for that or the following Fiscal Year. <br />Any costs related to an unpermitted discharge or other violation due to the exceedance of <br />one or more Agencies will be allocated as set forth in Section 16(a). <br />(c) Temporary Capacity Exceedance at the Request of the Authority. <br />Notwithstanding the foregoing, the Authority may request that one or more Agencies <br />temporarily exceed their Maximum Flow Rate Capacity in order to preserve the Agency(ies)' <br />capacity in storage, in accordance with approved Policies and Procedures. Agencies complying <br />with an Authority request to exceed their Maximum Flow Rate Capacity will not be charged <br />capacity exceedance fees, nor will any such exceedance count as an Agency’s first exceedance <br />under Section 11(b) above. In no event will any Agency be required to comply with any <br />Authority request to temporarily exceed its Maximum Flow Rate Capacity. Authority requests to