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Ordinance No. 10,214ORDINANCE NO. 10,214 • AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AN ELECTRIC SALES AGREEMENT WITH TEXAS GENERAL LAND OFFICE; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes the City Manager to execute an Electric Sales Agreement with Texas General Land Office. A copy of said agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 22nd day of November, 2005. CALVIN MUNDINGER, Mayor ATTEST: KELVIN KN ' , Interim C- y Clerk APPROVED AS TO FORM: erd�ACIO RAMIREZ, SR., Cit torney ® RAKarenTiles\City Council \Ordinances \2005 \November 22 \GLOOrdinance.doc • TEXAS GENERAL LAND OFFICE ELECTRIC SALES AGREEMENT CUSTOMER: City of Baytown P. O. Box 424 Baytown, TX 77522 Tel: 281.420.6525 Fax: 281.420.6167 E -mail: Travis.Doughty@bayto%vn.org SELLER: Texas General Land Office Stephen F. Austin Building 1700 North Congress Avenue Austin, Texas 78701 -1495 Tel: 512 -463 -1871 Fax: 512 - 475 -1543 E -mail: brenda.rivera @glo.state.tx.us The Electric Sales Agreement, the General Terms And Conditions and all attachments thereof constitute the entire "Agreement" between the parties with respect to the subject matter covered therein and supersedes all prior communications, representations or agreements, verbal or written. No party has made any representations or promised to do any act not contained in this Agreement. Except as expressly provided for herein, this Agreement cannot be modified or amended except in writing signed by both parties. When used with initial capitalization, whether in the singular or the plural, such capitalized terms used in the Agreement will have the meanings set forth in the Electric Sales Agreement, General Terms and Conditions or attachments thereto. CUSTOMER LOCATIONS: Customer Locations served pursuant to this Agreement are set out on Appendix A, attached hereto. POWER SALES: Customer agrees to purchase and Seiler agrees to sell all of Customer's electricity requirements for the Customer Locations during the Term stated below. TERM: This Agreement will not be effective until the date it is signed by the Texas Land Commissioner or his designee (the "Effective Date "). The term will commence on the Switch Date, or, if a switch is not required, on the first meter read on or after 200, and will expire, unless earlier terminated, on the first meter read date after , 200 for each Customer Location ( "Initial Term "). The Parties agree and acknowledge that the Term may commence prior to the Effective Date and in that event will have the same effect as if it commenced after the Effective Date. This Agreement may be terminated at any time prior to expiration of the Term in the circumstances specified in, and subject to the terms and conditions in the Default and State Funding provisions of the General Terms and Conditions. If this Agreement has not been terminated by either Party providing the other Party a Termination Notice and the Customer Location(s) have not switched to another REP effective upon the expiration of the Initial Term, then Seller may either (i) continue to sell and supply Energy in accordance with this Agreement, subject to the Transition Charge, or, (ii) to the extent allowed by applicable law (including, without limitation, ERCOT rules and protocols), terminate this Agreement and switch the Customer Location(s) to POLR service. Upon expiration of the Initial Term of this Agreement, if not then terminated and the Customer Location(s) switched, this Agreement will continue during the Transition Term until either Party provides a Termination Notice and all Customer Locations are switched to ® {00020317.4/02.0295 -8120) CADocuments and Set I ingsld bryant\Local SettingsWemporary Internet File5\0I_K231City Draft Agreement November 7 2005 (00020317- 4). DOC GLO NonlSD Total Power Base 08/01/05 Page l of 12 E=ff A ® POLR service or to another REP (the Initial Term and the Transition Term collectively, the "term "). The Transition Charge will govern Energy supplied to the Customer Location(s) during the Transition Term. The Transition Charge will be posted on the Site and Customer will be provided a Password to access the Site. By accessing the Site, Customer accepts the terms and conditions that appear on the Site. Customer is responsible at its cost to acquire and maintain equipment and services necessary to access the Site. CONTRACT CHARGE: For all power deliveries under this contract during the Term, Customer agrees to pay Seller the Contract Charge described in Appendix B. THE PERSON SIGNING THIS AGREEMENT ON BEHALF OF THE CUSTOMER CERTIFIES THAT HE OR SHE IS AUTHORIZED TO LEGALLY OBLIGATE THE CUSTOMER. TEXAS GENERAL LAND OFFICE SELLER: CUSTOMER: LOW Larry L. Laine Title: Deputy Land Commissioner/ Title: Chief Clerk Date: Date: SA_ DIV GC THE PERSON SIGNING THIS AGREEMENT ON BEHALF OF SOLUTIONS CERTIFIES THAT HE OR SHE IS AUTHORIZED TO LEGALLY OBLIGATE SOLUTIONS. Solutions, an assumed name of Reliant Energy Retail Services, LLC, is a signatory to this Agreement for purposes of acknowledging its obligations to accept assignment as provided in the General Terms and Conditions. SOLUTIONS: RELIANT ENERGY RETAIL SERVICES, LLC d/b /a Reliant Energy Solutions By: Name: David Roylance Title: Vice President, Energy Marketing (Vice President) ® 100020317.4 / 02-0295-8120) CADocuments and Settings\dbryant \Local Settings\Temporary Internet Fi1es \0LK23 \City Draft Agreement November 7 2005 (00020317- 4).DOC GLO Non1SD Total Power Base 08 /01 /OS Page 2 of 12 ® GENERAL TERMS AND CONDITIONS FOR TEXAS GENERAL LAND OFFICE ELECTRIC SALES AGREEMENT Definitions: "Costs" means, with respect to a Party, brokerage fees, commissions and other similar transaction costs and expenses reasonably incurred by such Party either in terminating any arrangement pursuant to which it has hedged its obligations or entering into new arrangements which replace this Agreement and attorneys' fees, if any, incurred in connection with enforcing its rights under this Agreement. "Default Service" means the bundled electric service provided by POLR to Customer if Customer fails to obtain energy from a REP, including Solutions. "Electric Sales Agreement" means the Electric Sales Agreement component of this Agreement. "ERCOT" means the Electric Reliability Council of Texas. "Force Majeure" means any event or circumstance which, in the exercise of due diligence, is beyond the reasonable control of the Party claiming excuse, and which partially or entirely prevents that Party's performance of its obligations, and includes acts of God; strikes, lockouts or other industrial disturbances or labor disputes; acts of public enemy, terrorism, wars, blockades, insurrections, civil disturbances and riots, and epidemics; landslides, lightning, earthquakes, fires, storms, hurricanes and threats of hurricanes, floods and washouts; arrests, orders, requests, directives, restraints and requirements of the government and governmental agencies, either federal or state, civil and military (but excluding, with respect to obligations of Seller, any such directive, restraint or requirement imposed by Seller); failure of necessary transmission or distribution Customer Locations that prevents the delivery of electricity hereunder; failure of the TDSP to deliver electricity, demonstrable outages of computer control equipment and/or databases and telecommunication equipment necessary for transmission or receipt of electronic control signals but only to the extent such outage prevents the delivery of electricity; reductions or interruptions in service as a result of emergency conditions which are necessary to protect generating or transmission Customer Locations or the reliability of transmission Customer Locations, and other causes of a similar nature not reasonably within the control of the Party claiming suspension. "kilowatt hour" (kWh) means one thousand watts of electric energy or electricity used in one hour. "Losses" means, with respect to a Party, an amount equal to the present value of the economic loss (exclusive of Costs), if any, to such Party resulting from the termination of this Agreement determined as provided in clauses (b) and (c) of "Remedies Upon an Event of Default" in the General Terms and Conditions. "Party" means either Seller or Customer. "Parties" means Seller and Customer. • {00020317.4/02 -0295 -8120} CADocuments and SettingAdbryant\Local Settings\Temporary Internet Files \OLK23 \City Draft Agreement November 7 2005 (00020317- 4). DOC GLO NonlSD Total Power Base 08 /0l /05 Page 3 of 12 • "Password" means collectively the login name and password provided to Customer at the email address set forth the Agreement that is to be used by Customer for each login to the Site. "POLR" or "Provider of Last Resort" means any Retail Electric Provider designated under PURA that are required to offer electricity to any requesting customer in its territory "PUC" means the Public Utility Commission of Texas. "PUC Tariff" means the tariff for the TDSP filed pursuant to PUC Subst. Rules Sect. 25.431 and approved by the PUC on May 18, 2001 or a successor tariff thereto. "PURA" means the Texas Public Utility Regulatory Act, as amended. "REP" or "Retail Electric Provider" means a seller of electricity that is permitted to lawfully sell and schedule delivery, or cause to be scheduled for delivery, of electricity to electric customers located in the State of Texas under PURA after the Choice Date. "Seller" shall mean the Texas General Land Office, acting through its representative, Reliant Energy Retail Services, LLC, a Delaware limited liability company, d/b /a Reliant Energy Solutions ( "Solutions ") and is sometimes referred to herein as "we" "us" and "our." "Site" means the Texas General Land Office website on the World Wide Web portion of the Internet. "Switch Date" means the date that all actions have been taken by the TDSP, and/or ERCOT for Seller to sell and schedule delivery, or cause delivery to be scheduled, of Energy to Customer with respect to each Customer Location and for Customer to purchase and receive, or cause to be received, such Energy from Seller for such Customer Locations, including, fully switching Customer to Seller by ERCOT. "Termination Notice" means a written notice from one Party to the other Party that indicates that the Agreement will terminate effective upon the expiration of the Initial Term or upon a meter read date during the Transition Tenn (as applicable), provided, in no event will the Agreement terminate less than 30 days after the date the receiving Party receives the Termination Notice. "Transition Charge" means the Contract Charge applicable during the Transition Term. "Transition Term" means the collective successive one -month terms of the Agreement beginning the day after the expiration of the initial Term and ending on the effective date of termination as determined by a Termination Notice. "Transmission and Distribution Service Provider" or "TDSP" means the entities and any successors thereto transmitting or distributing Energy on behalf of Seller or Customer to a Customer Location, including, transmission and distribution utilities, municipally owned utilities, and electric cooperatives whose distribution systems are currently interconnected with Customer Locations. Scope; Subject to the provisions of this Agreement and any applicable PUC Tariffs, we agree to sell and you agree to purchase your electricity requirements for the Customer Locations during the term of this • {00020317.4/02- 0295 -81201 CADocuments and Settings\dbryant \Local Settings \Temporary Internet Files\01_K23\City Draft Agreement November 7 2005 (00020317- 4). DOC GLO NonlSD Total Power Base 08/01/05 Page 4 of 12 • Agreement. You hereby authorize Seller to (i) obtain your electricity usage data, payment and credit history from TDSP, (ii) make nominations to enable us to deliver your electricity, (iii) execute required documents on your behalf necessary to commence service under this Agreement and (iv) perform such other tasks as are necessary to provide your electricity pursuant to this Agreement. Payment: Seller agrees to directly bill Customer on a monthly basis for its electric service in accordance with the Agreement, utilizing the TDSP's billing cycle. As soon as practicable after the end of each billing cycle, Seller agrees to render to Customer a statement setting forth the total number of kWh (rounded to the nearest whole kWh) delivered to Customer during the most recently completed billing cycle. Payment will be due within thirty (30) days of Seller's statement in accordance with payment instructions set forth in such statement. If Customer should fail to remit the full amount payable when due, interest of one percent (1 %) per month of the outstanding balance will be assessed. If Customer, in good faith, disputes any amount on any statement, Customer will pay to Seller the greater of (a) the undisputed amount, and (b) the amount of the prior month's statement, which latter amount may not exceed the total amount of the current disputed invoice. Seller promptly will provide supporting documentation and such other information as Customer may reasonably request for purposes of verifying the disputed amount. Any disputed and withheld amounts, if determined to have been billed properly, will be paid by Customer to Seller promptly together with interest from the original due date at the rate of one percent per month. Any amounts improperly billed and collected from Customer will be credited to Customer against its next bill, together with interest at the rate of one percent per month. Metering: Metering of electricity consumed by Customer must be performed by the TDSP pursuant to the TDSP's Tariff. Contract Performance; Representations: Except for the payment of money due hereunder, the Parties' performance of their respective obligations in this Agreement will be excused for Force Majeure events that prevent such Party's performance. The Party experiencing difficulty due to a Force Majeure event must promptly notify the other Party, attempt to cure the Force Majeure event with all due diligence and exercise reasonable efforts to mitigate or limit the adverse effects of such Force Majeure event. You represent that all information supplied to us is correct and that you are (1) validly existing, (ii) financially able to continue in business, (iii) unaware of any situation which would alter your financial abilities and have not filed, planned to file or have had filed any bankruptcy proceeding and (iv) authorized to enter into this Agreement. Any portion of this Agreement that may be deemed to be unenforceable or illegal will not affect the enforceability or legality of the remaining terms and conditions. Seller represents that the electricity being sold to you will have been delivered to the TDSP in accordance with applicable law. The foregoing is in lieu of all warranties, expressed or implied, in fact or by law with respect to the electricity delivered hereunder, including but not limited to any warranty as to the merchantability of the electricity or the fitness of the electricity for any particular use or purpose. • 100020317.4 /02- 0295 -81201 C: \Documents and Settings \dbryant%ocal Settings\Temporary Intemet Fi1es \OLK23 \Ci1y Draft Agreement November 7 2005 (00020317- 4). DOC GLO \onlSD Total Power Base 08 /01/05 Page 5 of 12 • THIS DOCUMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN THE PARTIES. THIS AGREEMENT MUST BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS EXCLUDING ANY CONFLICT OF LAW RULES THAT WOULD REQUIRE REFERENCE TO THE LAWS OF ANOTHER JURISDICTION. VENUE OF ANY SUIT BROUGHT FOR BREACH OF THIS AGREEMENT IS FIXED IN ANY COURT OF COMPETENT JURISDICTION IN TRAVIS COUNTY, TEXAS; PROVIDED, HOWEVER, THE FOREGOING MAY NOT BE CONSTRUED AS A WAIVER OF SOVEREIGN IMMUNITY BY SELLER. Liabilities: Seller acknowledges the importance to Customer of a consistent supply of electricity to its Customer Locations, and Seller will employ all resources reasonably available to it on a commercial basis to provide a consistent supply of electricity, subject to the other terms and conditions of this Agreement. Notwithstanding, Customer acknowledges that Seller exercises no independent control over TDSP's Customer Locations necessary for delivery of electricity, and Customer recognizes that Seller will have no liability or responsibility for service interruptions, fluctuations, termination or deterioration in the generation of electricity or its transmission or deterioration of service caused by any factor beyond Seller's control, including but not limited to failure of the TDSP's transmission and/or distribution system that delivers electricity to Customer. LIABILITIES NOT EXCUSED BY REASON OF FORCE MAJEURE OR OTHERWISE WILL BE LIMITED TO DIRECT ACTUAL DAMAGES. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY NOR INDIRECT DAMAGES. THERE ARE NO THIRD PARTY BENEFICIARIES TO THIS AGREEMENT. Credit: This Agreement is subject to credit approval by us throughout the Term. You agree to cooperate with us in establishing your creditworthiness, including the disclosure of your billing and payment history with your TDSP. Default: A "Default" has occurred if: (i) either Seller or Customer fails to perform any material term or condition of this Agreement, provided that such failure is not caused by a Force Majeure event or cured within 30 days of written notice by the other Party or within another period as may be mutually agreed upon by Seller and Customer, or (ii) Customer voluntarily or involuntarily becomes bankrupt or is forced into bankruptcy. Remedies Upon an Event of Default: (a) In the event of default under this Agreement by Seller or Customer, the other Party may (i) terminate this Agreement ( "Termination "), (ii) suspend performance and, to the extent allowed by law, drop Customer to Default Service, or withhold any payments due, and/or (iii) to the extent allowed by law, disconnect, or cause to be disconnected, Customer Locations from electric service. Termination will be effective upon the earlier of the date of notice of termination or such other date as may be required under law or TDSP procedures for switching electric suppliers ( "Termination Date "). In the event Seller terminates this Agreement due to Customer's default, Customer assumes all obligations to arrange for its electric supply. Upon termination, the non - defaulting Party may in good faith calculate its actual damages resulting from the termination of this Agreement, in the manner set forth below. (b) If the defaulting Party is Customer, the damages of GLO will be equal to the sum of the Costs plus the Losses, if any, determined by subtracting (i) the present value of a replacement contract calculated by using the equivalent quantities of energy and delivery points and relevant market prices for the remaining period of the Term either quoted by a bona fide third -party offer or which are reasonably expected to be available in the market under a replacement contract for this Agreement (the "Replacement 100020317.4 /02- 0295 -8120} C: \Documents and Settings \dbryant \Local SettingATemporary Intemet Fi1es \0LK23 \City Draft Agreement November 7 2005 (00020317 - 4).DOC GLO NonlSD Total Power Base 08/01/05 Page 6 of 12 . Contract ") from (ii) the present value of this Agreement calculated by using the remaining period of the Term, Customer's Energy Requirements (based on Customer's Benchmark Quantity, as defined in Appendix B, for each of the Customer Locations) had it not been terminated (the "Terminated Agreement"). (c) If the defaulting party is GLO, the damages of Customer will be equal to the sum of the Costs plus the Losses, if any, determined by subtracting the present value of the Terminated Agreement from the present value of the Replacement Contract. (d) To ascertain the market prices of a Replacement Contract, the non - defaulting Party may consider, among other valuations, any or all of the settlement prices of NYMEX futures contracts, quotations from leading dealers in energy swap contracts and other bona fide third party offers, all adjusted for the remaining period of the initial term or any renewal terms, as applicable, and differences in transmission. Present value will be discounted at the US$ Utility BBB2 rate which corresponds to the time period closest to the remaining period of the Term plus 1 percent. It is expressly agreed that a Party will not be required to enter into a Replacement Contract in order to determine the Termination Payment (as hereafter defined). The non - defaulting Party will aggregate such Losses and Costs with respect to this Agreement (determined as set forth above) into a single net amount and notify the defaulting Party. If the non - defaulting Party's aggregate Losses and Costs exceed its aggregate gains, the defaulting Party must, within 30 Business Days of receipt of such notice, pay (as liquidated damages for default hereunder and not as a penalty) the net amount (the "Termination Payment ") to the non - defaulting Party, which amount will bear interest at the rate of one percent per month from the Termination Date until, but excluding, the date paid. If the non - defaulting Party's aggregate gains exceed its aggregate Losses and Costs, if any, resulting from the termination of this Agreement, the amount of the Termination Payment will be zero, if the defaulting Party disagrees with the calculation of the Termination Payment, the issue must be submitted to mediation in accordance with the procedures set forth in these General Terms and Conditions, and the resulting Termination Payment will be due and payable within 3 Business Days after the resolution of the dispute. Assignment to Solutions: Notwithstanding anything to the contrary in this Agreement, if, subsequent to the date of this Agreement, Seller (1) is prohibited by law from selling electricity to Customer, or (2) is in Default under this Agreement, Seller, Customer and Solutions agree that Solutions will sell electricity directly to Customer at the same Contract Price and upon the terms and conditions contained in Solutions' then standard contract for electricity sales, for the remainder of the Term of this Agreement. in this event, Customer shall have incurred no actual damages. Representations of CLO: GLO represents as part of this Agreement that, (1) the services specified above are necessary and essential and are properly within the statutory functions and programs of GLO, (2) the proposed arrangements serve the interest of efficient and economical administration of GLO, and (3) the services, supplies or materials contracted for are not required by TX. CONST. Art. XVI, § 21 to be supplied under contract to the lowest responsible bidder. GLO further represents that it has authority to enter into this Agreement by virtue of the authority granted in TEX. NAT. RES. CODE §52.133 and TEX. UTIL. CODE § 35.101 et seq., and that it has reviewed and approved this Agreement pursuant to § 31.401, TEX. NAT. RES. CODE and 31 TEX. ADMIN. CODE § 8.1 et. seq.. Confidentiality: This Agreement and its terms are confidential except to the extent disclosure is necessary for its implementation or disclosure is otherwise required by law. {00020317.4 / 02 -0295 -8120} CADocuments and Set tings\dbryant \Local SettingsVI'emporary Internet Files10LK23 \City Draft Agreement November 7 2005 (00020317- 4). DOC GLO NonISD Total Power Base 08/01/05 Page 7 of 12 • Notices: Notices and invoices under this Agreement must be hand delivered or transmitted by the U. S. Mail to the addresses contained in the Electric Sales Agreement. Miscellaneous: At the request of Seller, Customer agrees to cooperate in obtaining from TDSP and supplying to Seller the following information: (a) recent and past electric usage including energy and demand, (b) meter readings and data, (c) types of service including rate schedule /tariff, and (d) responses to questions. Seller will have the right to use Customer's name in customer lists, and any other such literature but may not disclose any details of this Agreement. Customer agrees to obtain and maintain any approvals or authorizations Customer may need. Dispute Resolution: If a dispute arises that cannot be resolved to the satisfaction of the Parties, either Party may notify the other Party in writing of the dispute. If the Parties are unable to satisfactorily resolve the dispute within 14 days of the written notification, Seller may require the issue(s) be mediated. In that event, Seller must notify Customer and fumish Customer with the names of three mediators acceptable to Seller. Within 10 days of such notice, Customer must select a mediator from the list provided by Seller and notify Seller. The mediation must occur within 30 days of such notification. Prior to the mediation, each Party will provide the mediator with a statement of issues to be mediated, along with any other information /releases required by the mediator. The Parties agree to bear equally the cost of the mediator. Any dispute resolution must be conducted in accordance with the provisions the Governmental Dispute Resolution Act, TEX. GOV'T CODE § 2009.001 (1999). Prior State Employment: Customer certifies no employee of Customer that has been an employee of GLO within the past year has been or will be materially involved in either the negotiation of or the activities contemplated by this Agreement. State FundinIZ: This Agreement may not be construed as creating any debt on behalf of the State of Texas and /or GLO in violation of TX. CONST. Art. III, § 49. In compliance with TX CONST. Art VIII, § 6, it is understood that all obligations of the State hereunder are subject to the availability of State funds. If such funds are not appropriated or become unavailable, this Agreement may be terminated. In that event, the Parties will be discharged from further obligations, subject to the equitable settlement of their respective interests accrued up to the date of termination. Documentation of Amendments: Except for matters that pursuant to express provisions hereof may be conducted by oral agreement between the Parties, no amendment, modification, or change will be enforceable unless reduced to writing and executed by the Parties; provided, the Parties agree that amendments to add or delete Customer Locations may be implemented as follows. Amendments to Appendix A may be formed and effectuated pursuant to an email transmission from Customer to Seiler requesting that a Customer Location be added or deleted and attaching the addition/deletion form to be provided by Seiler (the "Email_ Request ") and Seller accepting the Email Request in a responsive email transmission attaching amended Appendix A (the "Email Confirmation "). The Parties will be legally bound by the amended Appendix A from the time Seller transmits them to Customer, and if Seller does not transmit same, no amendment by email transmission will be binding upon the Parties. The Email Request and Email Confirmation are adopted by the Parties as the means by which the Parties' amendment of Appendix A may be reduced to writing and the Parties agree not to contest or assert a defense to the validity or enforceability of such amendment entered into in accordance herewith. Each Party represents that each of its representatives charged with implementing the foregoing has authority to effectuate the foregoing amendment type by email transmission. ® 100020317.4/02- 0295 -8120} CADocuments and Set ti ngs%dbryant\LocaI Settings \Temporary Internet Files \OLK23 \City Draft Agreement November 7 2005 (00020317- 4). DOC GLO NonISD Total Power Base 08/01/05 Page 8 of 12 • Counterparts: This Agreement may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one instrument. Execution and delivery of this Agreement by exchange of facsimile copies bearing the facsimile signature of a Party hereto will constitute a valid and binding execution and delivery of this Agreement by such Party. Such facsimile copies will constitute enforceable original documents. Notwithstanding the foregoing, the Parties to this Agreement agree to use commercially reasonable efforts to exchange signed original documents after facsimile execution of this Agreement. 100020317.4 /02-0295-81201 C:\Documents and Scttings\dbryant\Local Settings\Temporary Internet Piles \01-K23Uly Draft Agreement November 7 2005 (00020317- 4). DOC GLO Non1SD Total Power Base 08/01/05 Page 9 of 12 • ELECTRIC SALES AGREEMENT APPENDIX A List of Customer Locations by Electric Service Identifier (ESI ID) Settlement Period Benchmark Quantities for each Customer Location • 100020317.4/02- 0295 -8120} CADocuments and Set tings \dbryant\LocaI Settings\Temporary Internet l'ilcs \01-K23 \City Draft Agreement November 7 2005 (00020317- 4). DOC GLO NonlS❑ Total Power Base 08/01/05 Page 10 of 12 • ELECTRIC SALES AGREEMENT APPENDIX B Contract Charge Total Power 2.0 — Model 20 Unbundled SELLER INVOICE Seller shall invoice each of Customer Locations on a monthly basis. Invoices shall consist of the following components: 1. Contract Charge; plus 2. Discretionary Service Fees (if any); plus 3. Transmission and Distribution Charges; plus 4. Competition Charges (whether positive or negative); and 5. Other charges expressly authorized in this Agreement. The "Contract Charge" is the amount in $US, determined by calculating the product of the Actual Consumption at the Customer Location and the Contract Price. The "Contract Price" equals $ per kWh consumed at the Customer Location and includes energy charges, capacity, fuel, Ancillary Charges, and ISO fees; provided, however, that there is no Material Change. Customer covenants that it shall promptly notify Seller of any event or circumstance that is likely to cause a significant change to the load at any Customer Location(s) (a "Notice of Load Change "), including Customer's plans for new construction, Customer Location replacement or equipment modification, planned closures, applications for new construction permits, or new environmental limits. In the event of a Material Change or the receipt by Seller of a Notice of Load Change, Seller and Customer will enter into good faith negotiations to amend the Benchmark Quantity and Contract Price of this Agreement to reflect the incremental effect of the Material Change or the incremental effect of the event or circumstance identified in the Notice of Load Change. If the Parties agree, then Customer's Benchmark Quantity and Contract Price shall be adjusted in accordance with that agreement, and all other terms and conditions of this Agreement shall remain in place and continue to apply to the remaining Customer Locations. If the Parties are unable to agree within 90 days after the occurrence or determination of an event of Material Change or the receipt by Seller of a Notice of Load Change, the matter shall be submitted for Dispute Resolution in accordance with the terms and procedures set forth in this Agreement. {00020317.4 102-0295-81201 CADocuments and Settings \dbryant\Local Settingsvremporary Internet Files \01-IC23\City Draft Agreement November 7 2005 (00020317- 4). DOC GLO NonISD Total Power Base 08/01/05 Page I 1 of 12 wADDITIONAL CAPITALIZED TERMS: "Actual Consumption" means the Energy measured or reported by the TDSP or estimated by Seller for the Customer Location for a month for scalar meters and for each hour for IDR meters. "Ancillary Charges" means, for each Customer Location, all charges assessed by ERCOT for services necessary to maintain reliable operation of the transmission system in order to support the transmission of Energy from the source of generation to the points of demand. "Competition Charges" means, for each Customer Location, any or all of the following charges: competition transition charges; transition charges as defined in the PURA; excess mitigation credits; and /or substantially similar charges associated with, or resulting from, the opening of the electric market in the State of Texas to REPS, including the recovery of stranded costs as defined by the PURA and increases in transmission and distribution rates charged by the TDSP that result from, or are otherwise attributable to, the redirection of depreciation expenses. "Discretionary Service Fees" means all non - routine deposits, connection fees, metering charges, installation costs for equipment to maintain a Power Factor of not less than 95% lagging at each Customer Location meter, assessments by the TDSP in respect of any Power Factor at any Customer Location meter, or any similar amounts that are assessed by and payable to the TDSP related to the purchase and installation of meters and associated equipment and the Customer's use of such equipment to establish or maintain electric service at a Customer Location or to maintain TDSP system requirements, or other charges for equipment or services requested by Customer or required by the TDSP. "Material Change" means for any two consecutive months: Customer's metered consumption for each month is less than 75% of the Benchmark Quantity specified in Appendix A or is greater than 125% of the Benchmark Quantity specified in Appendix A. "PoNver Factor" means the ratio of kW to kilovolt amperes expressed as a percentage, calculated by dividiniZ kW by kilovolt amperes. "Transmission and Distribution Charges" means, for each Customer Location, all transmission and distribution charges and other cost recovery charges and fees outlined in the TDSP's tariff and billed to Solutions for TDSP's services to deliver Energy to the applicable Customer Location; provided, such charges and fees will not include any Competition Charges. 100020317.4 / 02 -0295 -8120 ) CADocuments and Settings \dbryani\Local Settings\Temporary Internet Files \OLK23 \City Drag Agreement November 7 2005 (00020317 - 4).DOC GLO NonISD Total Power Base 08/01105 Page 12 of 12