TABLE OF CONTENTS - Houston · 3.8 Interface with City’s current solar provider, to receive meter...

TABLE OF CONTENTS

PART I – INTRODUCTION... ............................................................................................................................................ 4 1.0. General Information... ............................................................................................................................... 4 2.0. City of Houston Background ..................................................................................................................... 4 3.0. Solicitation Schedule ................................................................................................................................ 4 PART II – SCOPE OF WORK. ......................................................................................................................................... 5 1.0. Introduction ............................................................................................................................................... 5 2.0. Attachments .............................................................................................................................................. 6 3.0. Scope of Work .......................................................................................................................................... 6 PART III – EVALUATION AND SELECTION PROCESS ................................................................................................ 8 1.0. Evaluation Committee ... ........................................................................................................................... 8 2.0. Interviews/Oral Presentations/ Demonstrations ....................................................................................... 8 3.0. Selection Process ..................................................................................................................................... 8 4.0. Best and Final Offer (“BAFO”) .................................................................................................................. 8 5.0. Final Selection Process ............................................................................................................................ 8 6.0. Minimum Qualifications ............................................................................................................................. 9 7.0. Evaluation Criteria ... .............................................................................................................................. 10 8.0. Evaluation Matrix .................................................................................................................................... 11 9.0. Additional Related Services .................................................................................................................... 11 10.0. Interlocal Agreement ............................................................................................................................. 11 11.0. Invoicing ... ............................................................................................................................................. 11 PART IV – SUBMISSION OF PROPOSAL .................................................................................................................... 12 1.0. Instructions for Submission ... ................................................................................................................. 12 2.0. Submission Requirements ...................................................................................................................... 12 PART V – EXCEPTIONS TO TERMS AND CONDITIONS ........................................................................................... 17 PART VI – SPECIAL CONDITIONS ............................................................................................................................... 17 1.0. No Contact Period ... .............................................................................................................................. 17 2.0. Minority and Woman Business Enterprises (M/WBE) ... ........................................................................ 17 3.0. Protests ................................................................................................................................................... 17 4.0. Cancellation ............................................................................................................................................ 17 5.0. Anti-Boycott of Israel... ............................................................................................................................ 18 6.0. Executive Order 1-56 Zero Tolerance for Human Trafficking in City Service Contracts and Purchasing………………………………………………………………………………………………………….18

PART VII – INSTRUCTIONS TO PROPOSERS ............................................................................................................ 19 1.0. Pre-Proposal Conference... .................................................................................................................... 19

2.0. Additional Information and Specification Changes ................................................................................. 19 3.0. Letter(s) of Clarification ........................................................................................................................... 19 4.0. Examination of Documents and Requirements ...................................................................................... 19 5.0. Post-Proposal Discussions with Proposer(s) .......................................................................................... 19 6.0. Contractual Terms, Conditions, Limitations and Expectations ............................................................... 19

PART VIII – REQUIRED FORMS TO BE SUBMITTED WITH PROPOSAL ................................................................. 21 PART IX – REQUIRED FORMS TO BE SUBMITTED BY RECOMMENDED VENDOR ONLY ................................... 22 PART X – EXHIBITS AND ATTACHMENT ................................................................................................................... 22 APPENDIX I – SAMPLE ELECTRICITY SUPPLY AGREEMENT ................................................................................ 53

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PART I – INTRODUCTION

1.0 GENERAL INFORMATION 1.1 The City seeks proposals from qualified proposers for the supply of electricity and related

services to City facilities citywide. This RFP process will result in a five (5) year contract with two one (1) year renewal options to extend the term. The successful Proposer will assist with a broad range of related services that are described in Part II – Scope of Work, Section 3.0.

1.2 The City intends to enter into an electricity supply agreement for the supply of electricity with

the qualified Proposer to assist the City with the aforementioned. 2.0 CITY OF HOUSTON BACKGROUND 2.1 The City is the fourth largest City in the United States and is composed of 23 departments with

multiple physical locations throughout the geographical boundaries of the City. The City has approximately 23,000 employees with approximately 500 employees involved in the procurement and/or contracting process. Contracts where the City must pay in excess of $50,000 are routed to City Council for approval. The annual volume of contracts and purchase orders issued by the City in the last five years has ranged from 19,000 to 23,000.

3.0 SOLICITATION SCHEDULE

Listed below are the important dates for this Request for Proposals (RFP).

EVENT ___________ DATE _ Date of RFP Issued August 30, 2019 Pre-Proposal Conference September 11, 2019 Questions from Proposers Due to City September 17, 2019 Proposals Due from Proposers October 3, 2019 Notification of Intent to Award (Estimated) November 4, 2019 Council Agenda Date (Estimated) November, 2019 Contract Start Date (Estimated) July, 2020

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PART II – SCOPE OF WORK 1.0 INTRODUCTION 1.1 The City of Houston (“City”) is currently seeking proposals from qualified firms for the supply of

electricity and related services. The volume of electricity to be supplied to the City averages approximately 1.3 billion kWh of electricity per year but could be more or less each year. The chart and table below show past consumption variations.

1.2 The successful Proposer will supply electricity and related services to the City’s approximately

6,500 Electric Service Identifiers (ESIDs) citywide. 1.3 In addition to supplying electricity, Proposers will be required to deliver invoices electronically

in industry standard Electronic Data Interface (EDI) formats and have the capacity to work with the City on customized or standard billing and payment formats.

1.4 Other requirements include the ability to invoice and receive payments electronically, offering

an early payment discount, compliance with City’s Minority or Women Business Enterprise (“MWBE”) program set forth in Chapter 15 of the Houston Code of Ordinances. The successful Proposer must also not owe a debt to the City as defined in Section 15-122 of the Houston Code of Ordinances, not participate in any boycott of Israel as prohibited by Section 808.001 of the Tex. Gov’t Code, and agree to follow the City’s zero tolerance policy for human trafficking as set forth in Executive Order No. 1-56.

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1.5 The City will only consider, evaluate, and score Proposals that meet the Minimum Qualifications enumerated in Part III – Evaluation and Selection Process, Section 6.0. Once scored in accordance with the Evaluation Criteria described in Part III – Evaluation and Selection Process, Section 7.0, the City may narrow the field to the most qualified candidates. Those selected as finalists may then be invited to present their Proposal to the Evaluation Committee in-person and answer any questions. Contract negotiations and a Best and Final Offer (BAFO) will be held with one or more finalists prior to the City selecting the successful finalist and entering into a Service Agreement. The City anticipates having an electricity supply agreement in place by November 2019 with a start date of July 2020.

2.0 ATTACHMENTS

The following document is provided in this RFP as an aid in responding to this solicitation. Attachment A – Inbound/Outbound Electrical File Characteristics.

3.0 SCOPE OF WORK Proposer will be required to provide the below services at a competitive price: 3.1 Supply approximately 1.3 billion kWh of electricity annually to approximately 6,500 ESIDs

located in Harris, Montgomery, and Fort Bend Counties with service commencing on July 1, 2020.

3.1.1 The supplier must have an existing customer base of at least 26,000 ESIDs or

demonstrate that the City will not be more than 25% of its business.

3.1.2 The supplier has a significant business presence in the local area or is an agency of the State of Texas.

3.2 Deliver invoices electronically in industry standard EDI formats and have the capability to work

with the City on customized or standardized billing and payment formats compatible with SAP. See Attachment A provided in this RFP for the City’s current inbound and outbound data file characteristics. All Proposers:

3.2.1 Must provide the invoice detail electronically. 3.2.2 Must have the ability to create an electronic report of all outstanding invoices which

include: • Vendor Invoice # • Vendor Account # • Volume of electricity delivered during invoice period • Amount Due • Number of Days Overdue • Invoice Due Date • ESID #

3.2.3 Must have the ability to create an electronic report of paid invoices which include:

• Vendor Invoice # • Vendor Account # • Invoice Paid Amount • Payment Date

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• ESID #

3.2.4 Must be able to receive payment electronically. 3.2.5 Must be able to receive ACH payment method (mandatory)

3.3 Provide competitive pricing based on the format outlined in the Product and Pricing Parameters

and Instructions section (Exhibit VIII). 3.4 Participation in US Environmental Protection Agency’s (EPA) ENERGY STAR Portfolio

Manager:

3.4.1 Ability to participate in EPA’s ENERGY STAR program. 3.4.2 Ability to exchange City ESID data with EPA’s ENERGY STAR Portfolio Manager using

ENERGY STAR Portfolio Manager Web Services. 3.5 Subcontract 15% of electricity supply to City of Houston certified Minority or Women Business

Enterprises (“MWBE”) in accordance with Chapter 15 of the Houston Code of Ordinances. 3.6 Provide an assigned and/or dedicated business account representative for operational

activities, questions, issues, concerns, etc. 3.7 Offer an online portal with access to viewing and printing copies of current and archived

invoices, consumption and billing history, graphical/visual representation, and an inbox that will receive meter disconnect/disable notifications and miscellaneous communication.

3.8 Interface with City’s current solar provider, to receive meter detail data for invoicing, incorporate

the City’s purchase of as-generated 50 MW of solar energy (not Virtual Power Purchase Agreement-VPPA) from the City’s current solar provider for redelivery to the City, and have the ability to transmit billing detail including inbound/outbound data transmissions (see Attachment A).

3.9 Provide crosswalk of account conversion to include the archiving of historical consumption by

the City for budgetary purposes and analysis. 3.10 Offer and transact Renewable Energy Credits (REC) at market prices. 3.11 Ability to provide unmetered billing for the City’s streetlight accounts. 3.12 Coordinate with TDSP’s and the City’s representative(s) for new connections, disconnections,

storm repair, and other account changes.


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PART III – EVALUATION AND SELECTION PROCESS 1.0 EVALUATION COMMITTEE 1.1 An evaluation committee shall evaluate Proposers’ submissions in accordance with the

evaluation criteria listed in Section 7.0 below. The evaluation committee will be made up of representatives and subject matter experts from the Finance Department and other City departments. Upon completion of the evaluation, the committee may develop a short list of Proposer(s). The shortlisted Proposer(s) may be scheduled for a structured oral presentation, demonstration, interview and negotiations. Following these City-to-Proposer(s)’ meetings, the evaluation committee will summarize their findings and recalculate their scores, if needed. However, the evaluation committee reserves the right to issue letter(s) of clarification when deemed necessary to any or all Proposer(s). The oral presentations, demonstrations and/or interviews may be recorded and/or videotaped.

2.0 INTERVIEWS/ORAL PRESENTATIONS/DEMONSTRATIONS 2.1 The City reserves the right to request that Proposer(s) provide a final presentation handout of

its Proposal at their scheduled meeting. No Proposer may attend presentations of any other Proposer. If necessary, Proposers may be scheduled for more than one presentation, demonstration, or interview.

3.0 SELECTION PROCESS

3.1 The City intends to select a Proposal that best meets the needs of the City and that provides

the best overall value. The City reserves the right to check references on any projects performed by the Proposer, whether provided by the Proposer or known by the City. Upon review of all information provided by Proposers, the evaluation committee will make a recommendation for selection to City officials. Upon approval of the selected Proposer, a contract shall be executed by the appropriate City officials.

4.0 BEST AND FINAL OFFER (“BAFO”)

4.1 The City reserves the right to request one or more BAFO(s) from finalist Proposer(s), if

necessary. At minimum, the BAFO shall include 1) a final Price Schedule with associated costs; and 2) address any outstanding items previously identified, if any, during the evaluation of Proposals.

4.2 If the City chooses to invoke a BAFO option, Proposals shall then be re-evaluated by the

evaluation committee. The BAFO shall include instructions, requirements, and a specified submission due date.

5.0 FINAL SELECTION PROCESS 5.1 Upon review of all information provided by Proposers, the evaluation committee will make a

recommendation for selection to City officials. The selected Proposal(s) shall be submitted for approval by the appropriate City officials. The City intends to select one or more proposals that best meets the needs of the City and that is determined to be the most advantageous to the City considering the relative importance of price and the other evaluation criteria.

5.2 Upon approval of the selected Proposer(s), one or more Proposer(s) will be invited to negotiate

a contract for approval and execution by the appropriate City officials. Receiving a letter of intent to award or being invited to negotiate a contract does not mean a contract has actually been awarded.

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5.3 The City reserves the right to reject any and all Proposals. 6.0 MINIMUM QUALIFICATIONS 6.1 All Proposers must meet each of these minimum qualifications to be evaluated and scored by

the Evaluation Committee. If a Proposer believes these minimum qualifications are inapplicable, unfair, or impossible, Proposers are encouraged to submit their concerns in writing requesting clarification prior to the deadline for such requests set forth in Part VII – Instructions to Proposers, Section 2.0.

6.2 Completeness of Submission

6.2.1 Proposal includes a Cover Letter signed by a person authorized to bind the Proposer that promises to keep the quoted offer firm for a period of one-hundred and eighty (180) days (does not include price/kWh).

6.2.2 Proposal follows the prescribed format in Part IV – Submission of Proposal. 6.2.3 Proposal includes:

a. Cover Letter as stated in Part IV – Submission of Proposal, Section 2.1. b. Offer and Submittal form provided in Exhibit I. c. List of References using form provided in Exhibit I. d. List of Proposed Subcontractors form provided in Exhibit I. e. M/WBE forms provided in Exhibit II. f. Campaign Finance Ordinance compliance using form in Exhibit III. g. Affidavit of Ownership or Control compliance using form provided in Exhibit IV. h. Anti-Collusion Statement compliance using form in Exhibit V. i. Statement of Residency compliance using form in Exhibit VI. j. Conflict of Interest Questionnaire using state form in Exhibit VII. If the Proposer

does not have a conflict of interest to report, Proposer must still sign and submit this form.

6.3 Experience and Qualifications

6.3.1 Include a brief description of Proposer’s experience and qualifications to perform the services being requested as outlined in Part IV – Submission of Proposal, Section 2.3.

6.4 Financial Stability

6.4.1 Demonstration of suitable financial stability by the submission of financial documents required in Part IV – Submission of Proposal, Section 2.4

6.5 MWBE Compliance

6.5.1 Proposer must submit a proposed MWBE plan meeting or exceeding the 15% goal or

demonstrate its good faith efforts to fulfill the business opportunity objective prior to the award of a contract. For details, see Part IV – Submission of Proposal, Section 2.5.

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7.0. EVALUATION CRITERIA 7.1 Responsiveness of Proposal (Pass/Fail)

The Proposal shall be responsive to all material requirements that will enable the evaluation committee to evaluate it in accordance with the evaluation criteria and make a recommendation to City officials.

7.2 Technical Competence/Requirements (100 Points Total)

The Proposal shall be evaluated based on the extent to which the proposed solution meets the needs of the City including, but not limited to, the requirements listed and expressed in this RFP.

7.2.1 Price (50 points)

7.2.1.1 Supply approximately 1.3 billion kWh of electricity annually. See Part IV – Submission of Proposal, Section 2.6. (20 Points)

7.2.1.2 Provide competitive pricing based on the format outlined in the Product and Pricing Parameters and Instructions (Exhibit VIII) (30 Points)

7.2.3 Electronic Commerce (30 points)

7.2.3.1 Ability to provide electronic commerce per the format specified in Part II – Scope of Work, Section 3.2 and Part IV – Submission of Proposal, Section 2.7. (25 Points)

7.2.3.2 Energy Star Portfolio Manager participation and ability to exchange City ESID data with EPA’s ENERGY STAR Portfolio Manager using ENERGY STAR Portfolio Manager Web Services. See Part II – Scope of Work, Section 3.4 and Part IV – Submission of Proposal, Section 2.7. (5 Points)

7.2.4 Customer Support (10 Points)

7.2.4.1 Designated and/or assigned business account representative. See Part II – Scope of Work, Section 3.6. (5 Points)

7.2.4.2 Ability to provide an online service portal that provides users an entryway to a variety of information, tools, links, and more. See Part II – Scope of Work, Section 3.7. (5 Points)

7.2.5 References and Customer Relations (5 points)

7.2.5.1 Provide a list of at least three (3) references from customers with similar sized loads and similar number of ESIDs, especially if they are also Texas governmental entities. See Part IV – Submission of Proposal, Section 2.8.

7.2.5.2 No material or unsatisfactorily resolved Public Utility Commission of Texas customer complaints. See Part IV – Submission of Proposal, Section 2.8.

7.2.5.3 No material pending or past litigation. See Part IV – Submission of Proposal, Section 2.8.

7.2.6 Acceptance of Contract Terms (5 points)

7.2.6.1 Offer beneficial contract terms to City. See Part IV – Submission of Proposal, Section 2.9.

7.2.6.2 No objections or exceptions taken to City contract terms. See Part IV – Submission of Proposal, Section 2.9.

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Note: Hire Houston First (HHF) Program can be found in the City of Houston’s Code of Ordinances (the “Code”), Ch. 15, Article XI. At the conclusion of scoring Proposals, preference points shall be distributed in the following manner:

• 5 Points: For a Proposer whose firm resides within the City of Houston city limits. • 3 Points: For a Proposer whose firm is a local business residing within the local

Area as defined by section 15-176 of the Code. • 0 Points: For a Proposer whose company does not reside within Houston city

limits, or within the local area as defined by section 15-176 of the Code. 8.0 EVALUATION MATRIX

EVALUATION CRITERIA SCORE

Responsiveness of Qualifications Submission Pass/Fail

Price 50

Electronic Commerce 30

Customer Support 10

References and Customer Relations 5

Acceptance of Contract Terms 5

TOTAL SCORE 100

9.0 ADDITIONAL RELATED SERVICES

9.1 In submitting its Proposal, Proposer(s) shall indicate a willingness to negotiate future potential

additional services deemed appropriate for the supply of electricity and related services, as provided herein, or deemed necessary and/or desirable by the City.

10.0 INTERLOCAL AGREEMENT 10.1 Under the same terms and conditions, the resulting contract may be expanded to other

government entities through inter-local agreements between the City and the respective government entity that encompasses all or part of the products/services provided under this contract. Separate contracts will be drawn to reflect the needs of each participating entity.

11.0 INVOICING

11.1 The City is a single entity for accounting, billing, and discounting. Any invoices accompanied by detailed supplements and other backup documents are to be submitted for payments to:

City of Houston Attention: Finance Director

Finance Department P. O. Box 1562 Houston, Texas 77251-1562

11.2 The City requires timely and accurate accounting and billing information.

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PART IV – SUBMISSION OF PROPOSAL

1.0 INSTRUCTIONS FOR SUBMISSION 1.1 Number of Copies. Submit one (1) printed original of the complete Proposal, signed in BLUE

ink by an individual legally authorized to bind the proposer, ten (10) printed copies, and eleven (11) electronic copies of the Proposal on separate USB drives, sealed in a separate single envelope bearing the assigned solicitation number (located on the first page of this RFP document) to:

City Secretary’s Office City Hall Annex, Public Level 900 Bagby Street Houston, Texas 77002

The City shall bear no responsibility for submitting responses on behalf of any Proposer. Proposer(s) may submit their Proposal to the City Secretary’s Office any time prior to the stated deadline.

1.2 Time for Submission. Proposals shall be submitted no later than the date and time indicated

for submission in this RFP. Late submittals will not be considered and will be returned unopened.

1.3 Format. Proposals must be left-bound with information on both sides of the page when

appropriate. Material should be organized following the order of the submission requirements separated by labeled tabs, and shall be securely bound. Submission materials will not be returned to Proposers.

1.4 Complete Submission. Proposers are advised to carefully review all the requirements and

submit all documents and information as indicated in this RFP. Incomplete proposals may lead to a proposal being deemed non-responsive. Non-responsive proposals will not be considered.

1.5 Packaging and Labeling. The outside wrapping/envelope of the printed Proposal shall clearly

indicate the RFP title, date, time for submission, and the name of the Proposer. The required number of thumb drives containing the Proposal shall be submitted in a separate sealed envelope and marked in the same manner as the printed Proposal. All other submission requirements shall be included with the Proposer’s Proposal.

1.6 Delivery of Proposals. The Proposal, including all required forms, must be delivered by hand

or mailed to the address shown on the cover sheet of this RFP. If using an express delivery service, the package must be addressed and delivered specifically to the City Secretary’s Office. Packages delivered by express mail services to other locations may not be re-delivered to its final destination by the deadline hour.

1.7 Proposers Responsible for Timely Submission. Proposer remains responsible for ensuring that

its Proposal is received at the time, date, place, and office specified. The City assumes no responsibility for any Proposal not received, regardless of whether the delay is caused by the U.S. Postal Service, a courier delivery service, or some other act or circumstance.

2.0 SUBMISSION REQUIREMENTS

This section details the requirements for submitting all required information, to ensure some degree of uniformity in the Proposals submission, please tab sections accordingly and follow the outline listed below.

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2.1 Cover Letter: Submit a signed cover letter by the Proposer’s authorized representative legally

empowered to bind the Proposer. The cover letter shall indicate the Proposer’s commitment to provide the services proposed, and certify to the veracity of the Proposal’s content. This is also an opportunity to highlight the Proposer’s strength detailed elsewhere.

2.2 Table of Contents: The table of contents shall be organized to mirror the submission requirements in sequential orders.

2.3 Experience and Qualifications – Tab 1: Include a brief description of Proposer’s

experience and qualifications to perform the services being requested. This may include company history, track record, number of employees, number of years in business, key personnel, membership in professional organizations, and a list of projects or other government customers relevant to this RFP. This is where Proposer may articulate what sets it apart from its competition.

The narrative must include the following, in the order below:

• Demonstration of Proposer’s ability to deliver 1.3 billion kWh per year to approximately 6,500 ESIDs at the seasonal variations contained in Part II – Scope of Work, Section 1.0.

• Have an existing customer base of at least 26,000 ESIDs or demonstrates that the City will not be more than 25% of Proposer’s business.

• Demonstration that invoices and billing will be delivered electronically per the format/requirements specified in Part II – Scope of Work, Section 3.2.

• Assigned and/or dedicated business account representative for operational activities, questions, issues, and concerns.

• Ability to interface with City’s current solar provider to receive meter detail data for invoice.

• Ability to provide a crosswalk of account conversion. • Ability to archive historical consumption usage by the City. • Ability to offer and transact Renewable Energy Credits (REC) at market prices. • Demonstrated ability to coordinate with TDSP’s for new connections, disconnections,

storm repair, etc. • Ability to offer the following products:

- Locational Marginal Pricing (LMP) or Day Ahead Market (DAM) - Load Following Fixed Price - Renewable Load Following Fixed Price

2.4 Financial Stability – Tab 2:

2.4.1 Proposer shall provide the applicable financial statements. 2.4.2 If Proposer is an entity that is required to prepare audited financial statements, Proposer

shall submit an annual report that includes: 1) Last two years of audited accrual-basis financial statements, including an income

statement, cash flow statement, and balance sheet; 2) If applicable, last two years of consolidated statements for any holding companies or

affiliates; 3) An audited or un-audited accrual-basis financial statement of the most recent quarter

of operation; and

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4) Current Standard & Poor’s credit rating or equivalent.

2.4.3 If Proposer is a privately-owned entity or sole proprietorship for which audited financial statements are not required, Proposer shall submit an annual report that includes:

1) Last two years of un-audited accrual-basis financial statements, including an

income statement, cash flow statement, and balance sheet;

2) An audited or un-audited accrual-basis financial statement of the most recent quarter of operation; and

OR

3) Other financial information sufficient for the City, in its sole judgement, to

determine if Proposer is financially solvent or adequately capitalized.

2.4.4 A full disclosure of any events, liabilities, or contingent liabilities that could affect Proposer’s financial ability to perform this contract.

Please provide financial statements in a separate sealed envelope marked “Finanials”

2.5 MWBE Participation – Tab 3: Proposer must provide an affirmative statement that it has

reviewed the City’s MWBE program as set out in Chapter 15, Article V of the City of Houston Code of Ordinances, and intends to make a good faith effort to comply and participate. Proposer must state whether it is prepared to achieve or exceed the 15% goal. Proposer must provide details on how it will reach its goal and which MWBE certified companies Proposer will partner with. The completed MWBE forms required in Part III – Evaluation and Selection Process, Section 6.2, and contained in Exhibit II, should be included in this tab. If Proposer has an existing MWBE program or is certified as an MWBE entity, this too should be discussed.

2.6 Price – Tabs 4 and 5:

2.6.1 City expects that the price of electricity provided will be based on the format outlined in the Product and Pricing Parameters and Instructions section (Exhibit VIII). An opportunity to provide a best and final offer will be provided prior to final selection of the recommended Proposer. Proposer may elect to further discuss and detail the Adder provided in Exhibit VII in Tab 5.

2.7 Electronic Commerce – Tab 6:

2.7.1 The City is committed to eliminating its reliance on paper invoices and processes and conducting business electronically in accordance with the specifications in Part II – Scope of Work, Section 3.2. Proposer should include a description of its ability to deliver invoices and accept payments electronically. Include whether Proposer uses EDI or another format. The finalist may be asked to conduct a test demonstration of its electronic commerce abilities.

Demonstrate Proposer’s participation and ability to exchange City ESID data with EPA’s ENERGY STAR Portfolio Manager using ENERGY STAR Portfolio Manager Web Services. See Part II – Scope of Work, Section 3.4.

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2.8 Customer Support and References/Customer Relations – Tab 7 and 8: 2.8.1 Demonstrate ability to provide and/or assign business account representative(s)

and online service portal that provides users an entryway to a variety of information, tools, links, and more. See Part II – Scope of Work, Section 3.6 and 3.7.

2.8.2 Provide a list of at least three (3) references, using the template provided in Exhibit I.

The City prefers references from customers with a similar volume of electricity consumption and governmental entities. Include the name of the contact person, name of the organization, dollar value of the project, physical address, telephone number, e-mail address and average kWh consumption annually.

2.8.3 Include a history of customer complaints to the Public Utility Commission of Texas during

the past five years, with a brief explanation of how each was resolved. 2.8.4 Provide a list of all litigation either filed by, or against, Proposer, in the last ten years,

whether pending or concluded, and include a brief description of the reason for legal action, jurisdiction and cause number. If Proposer does not want to make any statements that could prejudice its case, then please attach key pleadings that contain the requested information (i.e. complaint, answer, motions for summary judgment, etc.) as exhibits.

2.9 Contract Terms and Exceptions – Tab 9: The Proposal should address the following key

contract terms and identify any exceptions to the following general contract requirements. Although the Proposer can provide exact contract language or a proposed electric supply agreement, it is not a requirement of the Proposal. The draft electric supply agreement will be provided to the prevailing Proposer during contract negotiations. 2.9.1 Liquidated Damages. The City will require liquidated damages in the event of the

Proposer’s default (typically cover damages). The Proposal may set forth one or more options for consideration and how Proposer proposes to calculate the liquidated damages.

2.9.2 Force Majeure. Timely performance may be temporarily excused by a force majeure

event. The Proposal should set forth what should and should not be included in the definition and scope of the force majeure clause as it applies to the seller and the buyer.

2.9.3 City’s Right to Add and Delete Load. From time-to-time, the City will need to add or

delete meters. The Proposal should set forth any limitations on this right and the proposed procedures and timelines to be followed.

2.9.4 Dispute Resolution. The Proposal may include options or procedures for addressing the

resolution of disputes. These options may not include arbitration or mediation due to the additional costs incurred.

2.9.5 Exceptions. If the Proposer intends to seek an exemption or limitation to any of the

below general contracting requirements, notice of this intent and the reason for it must be contained in this Tab. While there is some room for negotiation, most of the City’s contracting requirements are mandated by statute, ordinance, executive order, the City’s home-rule charter, or City policy, and are generally not open for negotiation. At a minimum, the following standard provisions will be in the final contract:

1) Release and Indemnification. Release the City from Proposer’s sole or concurrent

negligence. Indemnify and hold the City harmless for all claims, causes of action, liabilities, fines and expenses for injury, death, damage or loss to persons or property sustained in connection with or incidental to Proposer’s performance. In

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instances of concurrent negligence, this is limited to the statutory maximum, or $1,000,000, whichever is greater.

2) Inspections and Audits. Proposer shall permit the City to perform, or to have performed audits of books, records, and support for invoices, adjustments and claims. The Proposer shall keep its books and records available for this purpose for at least four years after the Supply Agreement terminates.

3) Insurance. Proposer is expected to name the City as an additional insured and carry: (a) commercial general liability insurance in the amount of $1,000,000 for each occurrence and $2,000,000 in the aggregate for bodily injury and property damage; (b) excess liability coverage or umbrella coverage of $1,000,000; (c) workers’ compensation insurance to the statutory limits, and (d) employer’s liability insurance for bodily injury by accident of $500,000 per accident, for bodily injury by disease of $500,000 (policy limit), and bodily injury by disease of $500,000 (each employee). Insurers must have a Best’s rating of at least B+ and a Best’s Financial Size Category of Class VI or better. Proposer must provide certificates of insurance and endorsements demonstrating compliance prior to execution of contract.

4) No Debt to City. If the Proposer incurs a debt, as defined in Section 15-122 of the Houston City Code of Ordinances, it shall immediately notify the City Controller, and pay such debt within 30 days. Failure to settle the debt in a timely manner shall permit the City to deduct funds in an amount equal to the debt from any payments due the Proposer, and the Proposer does not have any recourse.

5) Non-Appropriation. Successful Proposer must acknowledge the impact that Article II, Sections 19 and 19a of the City's Charter and Article XI, Section 5 of the Texas Constitution, may have on the City’s ability to pay its contractual obligations.

6) Texas as Applicable Law; Harris County as Venue. The Supply Agreement shall be governed by the laws of the State of Texas, the City Charter and Ordinances, the laws of the federal government of the United States, and all rules and regulations of any regulatory body or officer having jurisdiction. The Proposer must consent to Venue for any litigation in Harris County, Texas.

7) Sovereign Immunity. The City will not agree to any language that can be construed as waiving any of its immunities it possesses as a government entity.

8) Form 1295. The successful Proposer will be required to complete Texas Ethics Commission Form 1295 in accordance with Section 2252.908 of the Texas Government Code.

9) Anti-Human Trafficking. The successful Proposer will be required to comply with the Mayor’s Executive Order No. 1-56 containing a zero-tolerance policy for human trafficking and related activities.

10) Anti-Israel Boycott. The prohibitions on boycotting Israel contained in Section 808.001 of the Texas Government Code will apply to the final electricity supply agreement.

2.10 All Other Required Forms – Tab 10:

The following forms are to be submitted in addition to the proposal submission requirements in section 2.0. (Exhibits listed below are provided in this RFP) 1) Offer and Submittal form in Exhibit I. The Offer and Submittal form must be signed and

notarized in BLUE ink by an authorized representative(s) of the Proposer, which must be the actual legal entity that will perform the contract if awarded.

2) Campaign Finance Ordinance compliance using form in Exhibit III. 3) Affidavit of Ownership or Control compliance using form provided in Exhibit IV. 4) Anti-Collusion Statement compliance using form in Exhibit V. 5) Statement of Residency compliance using form in Exhibit VI. 6) Conflict of Interest Questionnaire using state form in Exhibit VII. If the Proposer does not

have a conflict of interest to report, Proposer must still sign and submit this form. 7) If applicable, include copy of HHF certification, or a statement whether an application is

pending.

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Part V – EXCEPTIONS TO TERMS AND CONDITIONS All exceptions included with the Proposal shall be submitted in a clearly identified separate section of the Proposal in which the Proposer clearly cites the specific paragraphs within the RFP where the exceptions occur. Any exceptions not included in such a section shall be without force and effect in any resulting contract unless such exception is specifically referenced by the Chief Procurement Officer or designee, City Attorney, Director(s) or designee in a written statement. The Proposer’s preprinted or standard terms will not be considered by the City as a part of any resulting contract. All exceptions that are contained in the Proposal may negatively affect the City’s Proposal evaluation based on the evaluation criteria as stated in the RFP or result in possible rejection of Proposal. Part VI – SPECIAL CONDITIONS 1.0 NO CONTACT PERIOD 1.0 Neither Proposer(s) nor any person acting on Proposer(s)'s behalf shall attempt to influence the

outcome of the award by the offer, presentation or promise of gratuities, favors, or anything of value to any appointed or elected official or employee of the City, their families or staff members. All inquiries regarding the solicitation are to be directed to the designated City Representative identified on the first page of the solicitation.

1.2 With the exception of Proposer’s formal response to the solicitation and written requests for

clarification during the period officially designated for such purpose by the City Representative, neither Proposer(s) nor persons acting on their behalf shall communicate with any appointed or elected official or employee of the City, their families, or staff through written or oral means in an attempt to persuade or attempt to persuade or influence the outcome of the award or to obtain or deliver information intended to or which could reasonably result in an advantage to any Proposer from the time of issuance of the solicitation through the pre-award phase and up to the date the City Secretary publicly posts notice of any City Council agenda containing the applicable award. However, nothing in this paragraph shall prevent a bidder from making public statements to the City Council convened for a regularly scheduled session after the official selection has been made and placed on the City Council agenda for action, or to a City Council committee convened to discuss a recommendation regarding the solicitation.

2.0 MINORITY AND WOMAN BUSINESS ENTERPRISES (“M/WBE”)

2.1 Proposer shall comply with the City’s M/WBE programs as set out in Chapter 15, Article V of

the City of Houston Code of Ordinances. Proposer shall make good faith efforts to award subcontracts or supply agreements in at least the value stated in this Agreement to M/WBE’s. Proposer acknowledges that it has reviewed the requirements for good faith efforts on file with the City’s Office of Business Opportunity (OBO) and will comply with them.

3.0 PROTEST

3.1 Protests should be filed in accordance with the City of Houston Administrative Policy No. 5-

12 http://www.houstontx.gov/adminpolicies/5-12.pdf 4.0 CANCELLATION 4.1 The City has sole discretion and reserves the right to cancel this RFP, or to reject any or all

Proposals received prior to contract award.

http://www.houstontx.gov/adminpolicies/5-12.pdf

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5.0 ANTI-BOYCOTT OF ISREAL 5.1 Proposer certifies that Proposer is not currently engaged in, and agrees until the funds are

exhausted under this purchase order not to engage in, the boycott of Israel as defined by Section 808.001 of the Texas Government Code.

6.0 EXECUTIVE ORDER 1-56 ZERO TOLERANCE FOR HUMAN TRAFFICKING IN CITY

SERVICE CONTRACTS AND PURCHASING 6.1 The City has a zero tolerance for human trafficking and, per Executive Order 1-56, City funds

shall not be used to promote human trafficking. City vendors are expected to comply with this Executive Order and notify the City’s Chief Procurement Officer of any information regarding possible violation by the vendor or its subcontractors providing services or goods to the City. The Executive Order is available on the City’s website: http://www.houstontx.gov/execorders/1-56.pdf


http://www.houstontx.gov/execorders/1-56.pdf

http://www.houstontx.gov/execorders/1-56.pdf

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PART VII – INSTRUCTIONS TO PROPOSERS

1.0 PRE-PROPOSAL CONFERENCE 1.1 A Pre-Proposal Conference will be held at the date, time, and location indicated on the first page

of the RFP document. Interested Proposer(s) are encouraged to attend. It will be assumed that potential Proposer(s) attending this meeting have reviewed the RFP in detail and are prepared to bring up any substantive questions not already addressed by the City.

2.0 ADDITIONAL INFORMATION AND SPECIFICATION CHANGES 2.1 Requests for additional information and questions should be addressed to the Finance

Department, Strategic Procurement Division, Senior Staff Analyst, Yesenia Chuca preferably by e-mail to [email protected] or by telephone at (832) 393-8727 no later than 4:00 p.m., CST by Tuesday, September 17, 2019. The City shall provide written responses to all questions received by Proposers prior to the RFP submittal deadline. Questions received from all Proposer(s) shall be answered by the City and made available to Proposer(s) who are listed as having obtained the RFP. Proposer(s) shall be notified in writing of any changes in the specifications contained within this RFP.

3.0 LETTER(S) OF CLARIFICATION 3.1 All Letters of Clarification and interpretations to this Solicitation shall be in writing. Any Letter

of Clarification(s) or interpretation that is not in writing shall not legally bind the City. Only information supplied by the City in writing or in this RFP should be used in preparing Proposal responses.

3.2. The City does not assume responsibility for the receipt of any Letters of Clarification sent to

Proposer(s). 4.0 EXAMINATION OF DOCUMENTS AND REQUIREMENTS 4.1 Each Proposer shall carefully examine all RFP documents and familiarize themselves with all

requirements prior to submitting a Proposal to ensure that the Proposal meets the intent of this RFP.

4.2 Before submitting a Proposal, each Proposer shall be responsible for making all investigations

and examinations that are necessary to ascertain conditions and affecting the requirements of this RFP. Failure to make such investigations and examinations shall not relieve the Proposer from obligation to comply, in every detail, with all provisions and requirements of the RFP.

5.0 POST-PROPOSAL DISCUSSIONS WITH PROPOSER(S) 5.1 It is the City’s intent to commence final negotiation with the Proposer(s) deemed most

advantageous to the City. The City reserves the right to conduct post-Proposal discussions with any Proposer(s).

6.0 CONTRACTUAL TERMS, CONDITIONS, LIMITATIONS AND EXPECTATIONS 6.1 This RFP does not commit the City of Houston (City) to award a contract, issue a Purchase

Order, or to pay any costs incurred in the preparation of a proposal in response to this request. The proposals will become part of the City’s official files without any obligation on the City’s part. All responses shall be held confidential from all parties other than the City until after the contract is awarded. Afterward, the proposals shall be available to the public. The City of Houston shall

mailto:[email protected]

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not be held accountable if material from responses is obtained without the written consent of the vendor by parties other than the City, at any time during the proposal process. All proposals submitted must be the original work product of the Proposer. The copying or paraphrasing of the work product of another Proposer is not permitted.


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PART VIII – REQUIRED FORMS TO BE SUBMITTED WITH PROPOSAL

1.0 Exhibit I

• Offer and Submittal • List of References • List of Proposed Subcontractors

2.0 Exhibit II - M/WBE Form

• Attachment “A” - Schedule of M/WBE Participation, M/WBE Participation Plan Good Faith Efforts

• Attachment “B” - Office of Business Opportunity and Contract Compliance M/WBE Utilization Report Notice of Intent

• Attachment “C” - Certified M/WBE Subcontract Terms • Attachment “D” Office of Business Opportunity and Contract Compliance M/WBE Utilization

Report

3.0 Exhibit III – Campaign Finance Ordinance 4.0 Exhibit IV - Contractor Ownership Disclosure Ordinance and Affidavit of Ownership or Control 5.0 Exhibit V - Anti-Collusion Statement 6.0 Exhibit VI - Bidder’s Statement of Residency 7.0 Exhibit VII - Conflict of Interest Questionnaire 8.0 Exhibit VIII – Pricing Parameters and Instructions


Page 22 of 53

PART IX – REQUIRED FORMS TO BE SUBMITTED BY RECOMMENDED VENDOR ONLY Required forms shall be supplied to the Contractor after the award recommendation: 1.0 Insurance Requirements and Insurance Certificate 2.0 Requested information outlined in the scope of work and other additional relevant/supporting

information, or alternate Proposal. 3.0 Texas Ethics Commission, Certificate of Interested Parties (Form 1295). Download a copy at

https://www.ethics.state.tx.us/tec/1295-Info.htm PART X – EXHIBITS AND ATTACHMENT


https://www.ethics.state.tx.us/tec/1295-Info.htm

Page 23 of 53

EXHIBIT I OFFER AND SUBMITTAL

NOTE: PROPOSAL MUST BE SIGNED AND NOTARIZED BY AN AUTHORIZED REPRESENTATIVE(S) OF THE PROPOSER, WHICH MUST BE THE ACTUAL LEGAL ENTITY THAT WILL PERFORM THE CONTRACT IF AWARDED AND THE TOTAL FIXED PRICE CONTAINED THEREIN SHALL REMAIN FIRM FOR A PERIOD OF ONE-HUNDRED EIGHTY (180) DAYS. "THE PROPOSER WARRANTS THAT NO PERSON OR SELLING AGENCY HAS BEEN EMPLOYED OR RETAINED TO SOLICIT OR SECURE THIS CONTRACT UPON AN AGREEMENT OR UNDERSTANDING FOR A COMMISSION, PERCENTAGE, BROKERAGE, OR CONTINGENT FEE, EXCEPTING BONA FIDE EMPLOYEES. FOR BREACH OR VIOLATION OF THIS WARRANTY, THE CITY SHALL HAVE THE RIGHT TO ANNUL THIS AGREEMENT WITHOUT LIABILITY OR, AT ITS DISCRETION, TO DEDUCT FROM THE CONTRACT PRICES OR CONSIDERATION, OR OTHERWISE RECOVER THE FULL AMOUNT OF SUCH COMMISSION, PERCENTAGE, BROKERAGE OR CONTINGENT FEE." Respectfully Submitted: _______________________________________________________________________________________ (Print or Type Name of Contractor – Full Company Name) City of Houston Vendor No. (If already doing business with City): __________________________________________ Federal Identification Number: _____________________________________________________________________ By: ____________________________________________________________________________________ (Signature of Authorized Officer or Agent) Printed Name: ___________________________________________________________________________

Title: ___________________________________________________________________________

Date: ___________________________________________________________________________

Address of Contractor: _____________________________________________________________________ Street Address or P.O. Box

_____________________________________________________________________ City – State – Zip Code

Telephone No. of Contractor: (_____) __________________________________________________________

Signature, Name and title of Affiant: ____________________________________________________________ _______________________________________________________________________________________ (Notary Public in and for) ____________________________________________________________________________ County, Texas My Commission Expires: ______________ day of _____________________________________ 20_________

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EXHIBIT I REFERENCES

LIST OF PREVIOUS CUSTOMERS

1. Name: ___________________________________ Phone No.: _________________

Address: __________________________________________________________________

Contract Award Date: ________________ Contract Completion Date: _______________

Contract Name/Title: ________________________________________________________

Email: ________________________________________________________ Project Description: _________________________________________________________

__________________________________________________________________________

2. Name: ___________________________________ Phone No.: _________________

Address: __________________________________________________________________




__________________________________________________________________________

3. Name: ___________________________________ Phone No.: _________________

Address: __________________________________________________________________




__________________________________________________________________________

4. Name: ___________________________________ Phone No.: _________________

Address: __________________________________________________________________




Page 25 of 53

EXHIBIT I LIST OF SUBCONTRACTOR(S)

The following is a list of Subcontractors we propose to engage on the following items of Work. Any item of Work which does not designate a Subcontractor will be done by the firm submitting the Proposal.

SEGREGATED PART OF WORK SUBCONTRACTOR/SUPPLIER ________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

________________________________ __________________________________

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EXHIBIT II ATTACHMENT “A”

SCHEDULE OF MWBE PARTICIPATION

Date:

Bid Number:

Formal Bid Title:

Name of Certified MWBE Subcontractor

Street Address, City, State, Zip Code, Tel # & Email

Certification Type {}

NAICS Code (6 Digits)

Description of Work (Scope of Work)

% of Participatio

n

MBE WBE

TOTAL $ MWBE PARTICIPATION

$

TOTAL BID AMOUNT $

Page 27 of 53

MWBE PARTICIPATION PLAN

GOOD FAITH EFFORTS

If you have exhausted your best efforts to comply with the City’s MWBE Policy by seeking subcontracts and supply agreements with certified minority and women business enterprises, yet failed to meet the MWBE contract goal of this bid document, list below your good faith efforts to demonstrate compliance. For more information, please review the Good Faith Efforts Policy, which can be found on the OBO website at www.houstontx.gov/obo. ___________________________________________________________________________________________________________ ___________________________________________________________________________________________________________ ___________________________________________________________________________________________________________ ___________________________________________________________________________________________________________ ___________________________________________________________________________________________________________ **All firms listed above must be certified by the Office of Business Opportunity at the time of bid submission. This schedule of MWBE participation must be returned with the bid form. The undersigned will enter into a formal subcontracting agreement with the M/WBEs and suppliers listed on this participation plan upon award of a contract from the City. _________________________________________________ Bidder Company Name _________________________________________________ Signature of Authorized Officer/Agent/Bidder & Title _________________________________________________ Print or Typed Name of Authorized Officer/Agent/Bidder & Title _________________________________________________ Date

http://www.houstontx.gov/obo

Page 28 of 53

EXHIBIT II ATTACHMENT “B”

OFFICE OF BUSINESS OPPORTUNITY AND CONTRACT COMPLIANCE MWBE UTILIZATION REPORT

NOTICE OF INTENT

THIS AGREEMENT IS SUBJECT TO MEDIATION AND CAN BE INITIATED BY THE COMPANIES SIGNED BELOW OR THE OFFICE OF BUSINESS OPPORTUNITY. To: City of Houston Date: Administering Department Project Name and Number Bid Amount: M/W/BE Goal: , agrees to enter into a contractual agreement with Prime Contractor _______________________________, who will provide the following goods/services in connection MWBE Subcontractor with the above-referenced contract:

_______________ for an estimated amount of $ or % of the total contract value. is currently certified with the City of Houston’s Office of Business (M/W/BE Subcontractor) Opportunity to function in the aforementioned capacity. Intend to

Prime Contractor M/W/BE Subcontractor work on the above-named contract in accordance with the M/W/DBE Participation Section of the City of Houston Bid Provisions, contingent upon award of the contract to the aforementioned Prime Contractor. Signed (Prime Contactor) Signed (M/W/BE Subcontractor) Printed Signature Printed Signature Title Date Title Date

Page 29 of 53

EXHIBIT II ATTACHMENT “C”

CERTIFIED MWBE SUBCONTRACT TERMS

CITY OF HOUSTON CERTIFIED MWBE SUBCONTRACT TERMS Contractor shall ensure that all subcontracts with M/WBE subcontractors and suppliers are clearly labeled “THIS CONTRACT IS SUBJECT TO MEDIATION” and contain the following terms:

1. _______________________(M/WBE subcontractor) shall not delegate or subcontract more than 50% of the work under this subcontract to any other subcontractor or supplier without the express written consent of the City of Houston’s Office of Business Opportunity Director (“the Director”).

2. _______________________(M/WBE subcontractor) shall permit representatives of the City of

Houston, at all reasonable times, to perform 1) audits of the books and records of the subcontractor, and 2) inspections of all places where work is to be undertaken in connection with this subcontract. Subcontractor shall keep such books and records available for such purpose for at least four (4) years after the end of its performance under this subcontract. Nothing in this provision shall affect the time for bringing a cause of action or the applicable statute of limitations.

3. Within five (5) business days of execution of this subcontract, Contractor (prime contractor) and

Subcontractor shall designate in writing to the Director an agent for receiving any notice required or permitted to be given pursuant to Chapter 15 of the Houston City Code of Ordinances, along with the street and mailing address and phone number of such agent.

These provisions apply to goal-oriented contracts. A goal-oriented contract means any contract for the supply of goods or non-professional services in excess of $100,000.00 for which competitive proposals are required by law; not within the scope of the MBE/WBE/SBE program of the United States Environmental Protection Agency or the United States Department of Transportation; and which the City Chief Procurement Officer has determined to have significant MWBE subcontracting potential in fields which there are an adequate number of known MBEs, WBE’s, and or SBE’s (if applicable) to compete for City contracts. The MWBE policy of the City of Houston will be discussed during the pre-proposal conference. For information, assistance, and/or to receive a copy of the City’s Affirmative Action Policy and/or Ordinance, contact the Office of Business Opportunity Division at 832.393.0600, 611 Walker Street, 7th Floor, Houston, Texas 77002.

Page 30 of 53

EXHIBIT II ATTACHMENT “D”

OFFICE OF BUSINESS OPPORTUNITY AND CONTRACT COMPLIANCE MWBE UTILIZATION REPORT

Report Period: _____________________ PROJECT NAME & NUMBER: ___________________________________ AWARD DATE:_____________________________ PRIME CONTRACTOR: ________________________________________ CONTRACT NO.: ___________________________ ADDRESS: __________________________________________________ CONTRACT AMOUNT: ______________________ LIAISON/PHONE NO.: _________________________________________ MWBE GOAL: ____________________________

MWBE SUB/VENDOR NAME

DATE OF OBO CERTIFICATION

DATE OF SUBCONTRACT

SUBCONTRACT AMOUNT

% OF TOTAL CONTRACT

AMOUNT PAID TO DATE

% OF CONTRACT TO DATE

Use additional pages if needed. Submit by the 15th day of the following month. Office of Business Opportunity Provide support documentation on all revenues paid to end of the report period to: ATTN: Carlecia Wright 713-837-9000 MWBE’s to reflect up/down variances on Contract amount. 611 Walker, 7th Floor Houston, Texas 77002

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EXHIBIT III CAMPAIGN FINANCE ORDINANCE

The City of Houston Fair Campaign Ordinance makes it unlawful for a Contractor to offer any contribution to a candidate for City elective office (including elected officers and officers-elect). All respondents to this invitation to bid must comply with Houston Code of Ordinances Chapter 18 as amended relating to the contribution and solicitation of funds for election campaigns. Provisions of this ordinance are provided in part in the paragraphs that follow. Complete copies may be obtained from the office of the City Secretary. Candidates for city office may neither solicit nor receive contributions except during a period commencing 270 calendar days prior to an election date for which a person is a candidate for such office and ending 90 calendar days after the election date, including run-off elections if such candidate is on the ballot. Further, it shall be unlawful either for any person who submits a Bid or Proposal to contribute or offer any contribution to a candidate or for any candidate to solicit or accept any contribution from such person for a period commencing at the time of posting of the City Council Meeting Agenda including an item for the award of the Contract and ending upon the 30th day after the award of the Contract by City Council. For the purposes of this Ordinance, a Contract is defined as each Contract having a value in excess of $30,000 that is let by the City for professional services, personal services, or other goods or services of any other nature whether the Contract is awarded on a negotiated basis, request for Proposal basis, competitive Proposal basis or formal sealed competitive Bids. The term Contractor includes proprietors of proprietorships, partners having an equity interest of 10% of more of partnerships, (including limited liability partnerships and companies), all officers and directors of corporations (including limited liability corporations), and all holders of 10% or more of the outstanding shares of corporations. A STATEMENT DISCLOSING THE NAMES AND BUSINESS ADDRESSES EACH OF THOSE PERSONS WILL BE REQUIRED TO BE SUBMITTED WITH EACH BID OR PROPOSAL FOR A CITY CONTRACT. Completion of the attached form entitled "Contractor Submission List" will satisfy this requirement. Failure to provide this information may be just cause for rejection of your Bid or Proposal.

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EXHIBIT III

Form A CONTRACTOR SUBMISSION LIST

CITY OF HOUSTON CAMPAIGN FINANCE ORDINANCE

By submitting a bid or proposal to the City of Houston for a Contract in excess of $50,000 or for which a request is presented to City Council for approval, all respondents agree to comply with Chapter 18

of the Code of Ordinances. Pursuant to Section 18-36 of the Code of Ordinances, it is unlawful either for any contractor to contribute or offer any contribution to a candidate, or for any candidate to solicit or accept any contribution from a contractor for a period commencing at the time of posting of the City Council Meeting Agenda including an item for the award of the Contract and ending upon the 30th day after the award of the Contract by City Council, or a determination by City Council of the Mayor that the contract will not be awarded to a contractor. The term “contractor” means any person who has received the award of a contract, has submitted a bid or proposal in any form for the award of a contract, or has been proposed to be awarded the contract in an item placed upon the City Council agenda, including any other person who seeks the award of the contract and is contesting, appealing, or protesting the award of the contract as proposed. This list is submitted under the provisions of Section 18-36(b) of the City of Houston Code of Ordinances in connection with the attached Bid/Proposal of:

Firm or Company Name:

Firm or Company Address:

The firm/company is organized as indicated below. Check one as applicable and attach additional

pages if needed to supply the required names and addresses. [ ] SOLE PROPRIETOR

Name

Proprietor Address [ ] A PARTNERSHIP

LIST EACH PARTNER HAVING EQUITY INTEREST OF 10% OR MORE OF PARTNERSHIP (IF NONE STATE “NONE”)

Name

Partner Address

Name Partner Address

[ ] A LIMITED LIABILITY COMPANY

Page 33 of 53

LIST EACH MEMBER OR MANAGER (IF NO MEMBERS) HAVING EQUITY INTEREST OF 10% OR MORE IN THE LIMITED LIABILITY COMPANY (IF NONE, STATE “NONE”)

Name

Member/Manager Address

Name Member/Manager Address

Name

Member/Manager Address [ ] A CORPORATION

LIST ALL DIRECTORS OF THE CORPORATION (IF NONE STATE “NONE”)

Name

Director Address

Name Director Address

Name

Director Address

LIST ALL OFFICERS OF THE CORPORATION (IF NONE STATE “NONE”)

Name Officer Address

Name

Officer Address

Name Officer Address

LIST ALL INDIVIDUALS OWNING 10% OR MORE OF OUTSTANDING SHARES OF STOCK OF THE CORPORATION (IF NONE STATE “NONE”)

Name

Owner Address

Name Owner Address

Name

Owner Address

Page 34 of 53

I certify that I am duly authorized to submit this list on behalf of the firm, that I am associated with the firm in the capacity noted below, and that I have knowledge of the accuracy of the information provided herein.

Signature

Printed Name

Title

Note: This list constitutes a government record as defined by § 37.01 of the Texas Penal Code.

END OF DOCUMENT

Page 35 of 53

EXHIBIT IV CONTRACTOR OWNERSHIP DISCLOSURE ORDINANCE

City Council requires knowledge of the identities of the owners of entities seeking to Contract with the City in order to review their indebtedness to the City prior to entering Contracts. Therefore, all respondents to this Invitation to Bid must comply with Houston Code of Ordinances Chapter 15, as amended (Sections 15-122 through 15-126) relating to the disclosure of owners of entities bidding on, proposing for or receiving City contracts. Provisions of this ordinance are provided in part in the paragraphs that follow. Complete copies may be obtained from the office of the City Secretary.

Contracting entity means a sole proprietorship, corporation, non-profit corporation, partnership, joint venture, limited liability company, or other entity that seeks to enter into a contract requiring approval by the Council but excluding governmental entities. A contracting entity must submit at the time of its Bid or Proposal, an affidavit listing the full names and the business and residence addresses of all persons owning five percent or more of a contracting entity or, where a contracting entity is a non-profit corporation, the full names and the business and residence addresses of all officers of the non-profit corporation. Completion of the "Affidavit of Ownership or Control," included herein, and submitted with the Official Bid or Proposal Form will satisfy this requirement. Failure to provide this information may be just cause for rejection of your Bid or Proposal.

Page 36 of 53

EXHIBIT IV AFFIDAVIT OF OWNERSHIP OR CONTROL

ORIG. DEPT.: [DEPARTMENT] FILE/I.D. NO.: [WBS NO.] INSTRUCTION: ENTITIES USING AN ASSUMED NAME SHOULD DISCLOSE THAT FACT TO AVOID REJECTION OF THIS AFFIDAVIT. THE FOLLOWING FORMAT IS RECOMMENDED: CORPORATE/LEGAL NAME DBA ASSUMED NAME. STATE OF §

§ AFFIDAVIT OF OWNERSHIP OR CONTROL COUNTY OF §

BEFORE ME, the undersigned authority, on this day personally appeared

[FULL NAME] (the “Affiant”),

[STATE TITLE/CAPACITY WITH CONTRACTING ENTITY] of

[CONTRACTING ENTITY’S CORPORATE/LEGAL NAME] (”Contracting Entity”), who being by me duly

sworn on oath stated as follows:

1. Affiant is authorized to give this affidavit and has personal knowledge of the facts and matters herein stated.

2. Contracting Entity seeks to do business with the City in connection with

[DESCRIBE PROJECT OR MATTER] which is expected to be in an amount that exceeds $50,000.

3. The following information is submitted in connection with the proposal, submission or bid of Contracting Entity in connection with the above described project or matter.

4. Contracting Entity is organized as a business entity as noted below (check box as applicable).

FOR PROFIT ENTITY: NON-PROFIT ENTITY:

[ ] SOLE PROPRIETORSHIP [ ] NON-PROFIT CORPORATION [ ] CORPORATION [ ] UNINCORPORATED ASSOCIATION [ ] PARTNERSHIP [ ] LIMITED PARTNERSHIP [ ] JOINT VENTURE [ ] LIMITED LIABILITY COMPANY [ ] OTHER (Specify type in space below)

5. The information shown below is true and correct for the Contracting Entity; and 6. All owners of 10% or more of the Contracting Entity and, where the Contracting Entity is a non-profit entity, the

required information has been shown for each officer, i.e., president, vice-president, secretary, treasurer, etc. [NOTE: IN ALL CASES, USE FULL NAMES, LOCAL BUSINESS AND RESIDENCE ADDRESSES AND TELEPHONE NUMBERS. DO NOT USE POST OFFICE

Page 37 of 53

BOXES FOR ANY ADDRESS. INCLUSION OF E-MAIL ADDRESSES IS OPTIONAL, BUT RECOMMENDED. ATTACH ADDITIONAL SHEETS AS NEEDED.]

Contracting Entity

Name: Business Address [NO./STREET]

[CITY/STATE/ZIP CODE]

Telephone Number (_____) Email Address [OPTIONAL] Residence Address [NO./STREET]


Telephone Number (_____) Email Address [OPTIONAL]

10% Owner(s) or More (IF NONE, STATE “NONE.”)

Name:

Business Address [NO./STREET]


Telephone Number (_____)

Email Address [OPTIONAL]

Residence Address [NO./STREET]


Telephone Number (_____)

Email Address [OPTIONAL]

Page 38 of 53

7. Optional Information

Contracting Entity and/or [NAME OF OWNER OR NON-PROFIT OFFICER] is actively protesting, challenging or appealing the accuracy and/or amount of taxes levied against [CONTRACTING ENTITY, OWNER OR NON-PROFIT OFFICER] as follows:

Name of Debtor: Tax Account Nos. Case or File Nos. Attorney/Agent Name Attorney/Agent Phone No. (_____) Tax Years

Status of Appeal [DESCRIBE]

Affiant certifies that he or she is duly authorized to submit the above information on behalf of the Contracting Entity, that Affiant is associated with the Contracting Entity in the capacity noted above and has personal knowledge of the accuracy of the information provided herein, and that the information provided herein is true and correct to the best of Affiant’s knowledge and belief.

Affiant

SWORN TO AND SUBSCRIBED before me this day of , 20 . (Seal)

Notary Public

NOTE: This affidavit constitutes a government record as defined by Section 37.01 of the Texas Penal Code. Submission of a false government record is punishable as provided in Section 37.10 of the Texas Penal Code. Attach additional pages if needed to supply the required names and addresses.

Page 39 of 53

EXHIBIT V ANTI-COLLUSION STATEMENT

The undersigned, as Proposer, certifies that the only person or parties interested in this Proposal as principals

are those named herein; that the Proposer has not, either directly or indirectly entered into any Agreement,

participated in any collusion, or otherwise taken any action in restraint of free competitive bidding in connection

with the award of this Contract.

__________________________ __________________________________ Date Proposer Signature

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EXHIBIT VI BIDDER’S STATEMENT OF RESIDENCY

The City may not award a contract for general construction, services, or purchases to a Nonresident Bidder unless Nonresident's Bid is lower than the lowest Bid submitted by a responsible Texas Resident Bidder by the same amount that a Texas Resident bidder would be required to underbid the Nonresident Bidder to obtain a comparable contract in the state in which Nonresident's principle place of business is located. 1. This certifies that the Bidder, , is a State of Texas

Resident Bidder as defined in TEX. GOVT. CODE ANN. § 2252.001(4) (Vernon 2016).

Signature Title

"Texas Resident Bidder" means a bidder whose principal place of business is in this State, and includes a Contractor whose ultimate parent company or majority owner has its principal place of business in this State. When bidder cannot sign 1, above, proceed to 2. 2. a. is a resident of and is a Nonresident Bidder as defined in TEX. GOVT. CODE ANN. § 2252.001(3) (Vernon 2016).

Signature Title

"Nonresident Bidder" means a bidder whose principal place of business is not in this State, but excludes a contractor whose ultimate parent company or majority owner has its principal place of business in this State.

b. The State of [does/does not] have a state statute giving preference to resident bidders.

Signature Title If the answer to 2.b is that your state does have a statute giving preference to resident bidders, then you must provide a copy and proceed to 3. 3. A copy of the State of statute is attached.

Signature Title

Date

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EXHIBIT VII CONFLICT OF INTEREST QUESTIONNAIRE

CONFLICT OF INTEREST QUESTIONNAIRE: Chapter 176.006 of the Local Government Code (“the code”) requires a Vendor/Contractor to file a Conflict of Interest Questionnaire (CIQ) with the City. NOTE: Vendors/Contractors or Agents should not complete the CIQ if a conflict, as described below, does not exist. Only Vendors/Contractors or Agents that actually have a conflict, as described below, must file a CIQ. Who must file a CIQ? A Vendor/Contractor or Agent of a Vendor/Contractor does not have to file a CIQ unless they intend to enter or is considering entering into a contract with the City or:

1. has an employment or other business relationship with the Local Government Officer/Family Member; or 2. has given the Local Government Officer/Family Member one or more gifts with the aggregate value

exceeding $250.00. When must the Vendor/Contractor or Agent file a CIQ? The completed CIQ must be filed with the City Chief Procurement Officer not later than the 7th business day after the date the Vendor/Contractor or Agent:

1. begins discussions or negotiations to enter into a contract with the City; 2. submits an application to the City in response to a request for proposals or bids, correspondence, or any

other writing related to a potential contract with the City; 3. becomes aware of an employment or other business relations with the Local Government Officer/Family

Member; 4. becomes aware that he/she has given one or more gifts to the Local Government Officer/Family Member

that exceeds $250.00; or 5. an event that would make the CIQ incomplete or inaccurate.

What is a business relationship? Under Chapter 176, business relationship means a connection between two or more parties based on the commercial activity of one of the parties. The term does not include:

1. a transaction that is subject to a rate or fee regulation by a governmental entity; 2. a transaction conducted at a price and subject to terms available to the public; or 3. a purchase or lease of goods or services from a person who is chartered by a state or federal agency

and is subject to regular examination and reporting to that agency. The Conflict of Interest Questionnaire is available for downloading from the Texas Ethics Commission’s website at http://www.ethics.state.tx.us/forms/CIQ.pdf . The Original Conflict of Interest Questionnaire shall be filed with the Finance Department, Strategic Procurement Division, ATTN: Jerry Adams, Chief Procurement Officer; 901 Bagby; Concourse Level; Houston, Texas 77002). Vendors and Contractors required to file shall include a copy of the form as part of the BID/Proposal package. Any questions about filling out this form should be directed to your attorney.

http://www.ethics.state.tx.us/forms/CIQ.pdf

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EXHIBIT VII

CONFLICT OF INTEREST QUESTIONNAIRE

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EXHIBIT VIII PRODUCT AND PRICING PARAMETERS AND INSTRUCTION

Prospective Proposers are required to provide pricing for the Pricing Groups immediately below. Please note that pricing in all cases is to the Load Zone. Material Adverse Change will not apply to any pricing group. REQUIRED PRICING GROUPS: Required A (Green-E Renewable)

Pricing Group 1 Product: Day ahead or real time index at City’s discretion plus Adder. The Adder is to contain values for ancillaries, losses, supplier margin, and project or Green-E renewable energy credits for 100% of the consumption. Pricing Group 2 Product: 100% physical renewable energy, full swing, load following, fixed price with marketing rights relative to the renewable asset(s) producing the energy. The price should include project or Green-E renewable energy credits for 100% of the load for this Pricing Group. Pricing Group 3 Meter / ESID Type: 21 meters associated with the City’s 50 MW of long term physical solar energy purchased from ENGIE with project or Green-E renewable energy credits being provided in the adder in addition to supplier margin. ENGIE schedules/delivers the energy to the Lasso node in West Texas. The COH load is settled in Houston, and COH pays for the basis difference between the 2 points. There will be daily communication between the Engie QSE and supplier’s QSE per ERCOT protocols for load scheduling. The load is then settled as a group before being allocated to the assigned meters by the supplier. Allocation percentages to each meter will be provided to the selected supplier.

Required B (Green-E Renewable)

Pricing Group 1 and Pricing Group 2 Product: 100% physical renewable energy, full swing, load following, fixed price with marketing rights relative to the renewable asset(s) producing the energy. The price should include project or Green-E renewable energy credits for 100% of the load for this Pricing Group. Pricing Group 3 Meter / ESID Type: 21 meters associated with the City’s 50 MW of long term physical solar energy purchased from ENGIE with project or Green-E renewable energy credits being provided in the adder in addition to supplier margin. ENGIE schedules/delivers the energy to the Lasso node in West Texas. The COH load is settled in Houston, and COH pays for the basis difference between the 2 points. There will be daily communication between the Engie QSE and supplier’s QSE per ERCOT protocols for load scheduling. The load is then settled as a group before being allocated to the assigned meters by the supplier. Allocation percentages to each meter will be provided to the selected supplier.

Required C (Green-E Renewable)

Pricing Group 1, Pricing Group 2, and Pricing Group 3 With respect to all load other than that secured from the City’s long-term solar purchase contract, 100% physical renewable energy, full swing, load following, fixed price with marketing rights relative to the

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renewable asset(s) producing the energy. The price should include project or Green-E renewable energy credits for 100% of the load for this Pricing Group.

Required D (Conventional Power)

Pricing Group 1 Meter / ESID Type: 87 meters associated with streetlights Product: Day ahead or real time index at City’s discretion plus Adder. The Adder is to contain valuers for ancillaries, losses, and supplier margin. Pricing Group 2 Meter/ ESID Type: 5,960 meters associated with the City’s general operations (Police, Fire, Airports, Public Works, Parks, etc.) Product: Full Swing, Load Following, Fixed Price with No Material Adverse Change clause Pricing Group 3 Meter / ESID Type: 21 meters associated with the City’s 50 MW of long term physical solar energy purchased from ENGIE. ENGIE schedules/delivers the energy to the Lasso node in West Texas. The COH load is settled in Houston, and COH pays for the basis difference between the 2 points. There will be daily communication between the Engie QSE and supplier’s QSE per ERCOT protocols for load scheduling. The load is then settled as a group before being allocated to the assigned meters by the supplier. Allocation percentages to each meter will be provided to the selected supplier.

Prospective Proposers should consider the contractual volumes immediately below in their pricing response as the solar farm has had some technical issues that until recently were impacting delivery. Product: LMP settlement + Adder wherein prospective supplier will settle actual metered load against contractual solar load, buying excess solar or selling required energy, as necessary. Contractual solar load below. The adder for this section will contain supplier margin, only, with all other costs passed through. Contractual Solar Volumes:

Contract Year Expected Metered Energy Contract Expected Expected Year Energy (MWh) Energy (kWh) 1 132,512 132,511,670 2 131,849 131,849,112 3* 131,190 131,189,867 4 130,534 130,533,917 5 129,881 129,881,247 6 129,232 129,231,842 7 128,586 128,585,682 8 127,943 127,942,753 9 127,303 127,303,040 10 126,667 126,666,525 11 126,033 126,033,192 12 125,403 125,403,025 13 124,776 124,776,010 14 124,152 124,152,130

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15 123,531 123,531,370 16 122,914 122,913,713 17 122,299 122,299,145 18 121,688 121,687,648 19 121,079 121,079,210 20 120,474 120,473,815 Contract year begins April 1 of each year and ends March 31. * The City is currently in Year 3

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ATTACHMENT A

Inbound/Outbound Electrical File Characteristics

The purpose of this document is to provide a high-level description of COH current inbound and outbound data file characteristics.

• Text File Tab Delimited • File is dropped on COH external FTP Server and picked up nightly

Table of Contents Inbound/Outbound Electrical File Characteristics ...................................................................................... 47

Inbound File Format ................................................................................................................................ 47 File Header Record .............................................................................................................................. 47 Invoice Header Record ........................................................................................................................ 47 Meter Read Detail Record ................................................................................................................... 49 Trailer Record ...................................................................................................................................... 50

Outbound File Characteristics ................................................................................................................. 50 Outbound File Format ............................................................................................................................ 50

Total Header Record ........................................................................................................................... 50 Batch Total Record .............................................................................................................................. 51 Detail Record (one for each paid invoice) ........................................................................................... 52

Note: Detail records appear after the batch record of that specific batch. ............................................... 52 Inbound File Format The file format is shown below. Consists of four (4) record types:

1. File Header Record 2. Invoice Header Record 3. Meter Read Detail Record 4. Trailer Record

File Header Record

Invoice Header Record

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Page 49 of 53

Meter Read Detail Record

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Trailer Record

Outbound File Characteristics

• Text File Tab Delimitted • File is dropped on COH external FTP Server and picked up nightly • Contains a record of the Invoices that have been cleared by SAP at COH

Outbound File Format The file format is shown below. Consists of three (3) record types:

1. Total Record 2. Batch Record 3. Detail Record

Total Header Record Total Record – (File & Sub-system Totals) for the entire file. Note: Total Record should appear before any other records of that file.

Length Position Alpha/Numeric Decimals Description

06 1 – 6 N 0 Records count (Including Total Record) Example: ‘001332’

04 7 – 10 Filler

06 11 – 16 N 0 Transfer Time (HHMMSS) Example: ‘172951’

01 17 – 17 Filler

03 18 – 20 N 0 Constant ‘999’ = Fileheader

13 21 – 33 Filler

14 34 – 47 N 2 Total Amount Example: ‘00000333215147’

01 48 – 48 Filler

04 49 - 52 N 0 Company code = ‘0121’

01 53 – 53 Filler

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03 54 – 56 A Vendor name = ‘COH’

01 57 – 57 Filler

02 58 – 59 N 0 Transfer Number in sequence. Start with ‘01’

01 60 – 60 Filler

03 61 – 63 A Constant = ‘PRD’ for Production

03 64 – 66 Filler

05 67 – 71 N 0 Sequential Count ‘00001’ within the file

01 72 – 72 Filler

08 73 – 80 N 0 Transfer Date (YYYYMMDD) Example: 20140313

40 81 – 120 Filler

120 TOTAL

Batch Total Record Batch Total Record (Payments) Note: Batch Total Record should appear before detail records of that specific batch.


06 1 – 6 N 0 Records count (Including Batch Total Record) Records count for each batch. Example: ‘001331’

11 7 – 17 Filler

03 18 – 20 N 0 Constant ‘997’ = Batch Header

13 21 – 33 Filler

14 34 – 47 N 2 Batch Total Amount. Example: ‘00000333215147’

19 48 – 66 Filler

05 67 – 71 N 0 Sequential Count within the file. Example: ‘00002’

01 72 – 72 Filler

08 73 – 80 N 0 Transfer Date (YYYYMMDD) Example: ‘20140313’

40 81 – 120 Filler

120 TOTAL

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Detail Record (one for each paid invoice) Note: Detail records appear after the batch record of that specific batch.


04 1 – 4 N 0 Company code = ‘0121’

01 5 – 5 Filler

12 6 – 17 N 0 Account Number. A twelve digit zero-filled Contract Account Number. Example: ‘000009481678’

01 18 – 18 Filler

01 19 – 19 N 0 Check Digit of the Contract Account Number. Example: ‘2’

01 20 – 20 Filler

11 21 – 31 N 2 Payment Amount. Example: ‘00000000166’

01 32 – 32 Filler

02 33 – 34 A Filler

05 35 – 39 Filler

06 40 – 45 N Time of Processing (HHMMSS). Example: ‘172951’

01 46 – 46 Filler

03 47 – 49 A Filler

02 50 – 51 Filler

03 52 – 54 N 0 Vendor Name = ‘COH’

01 55 – 55 Filler

10 56 - 65 N 0 SAP Clearing Document #

01 66 – 66 Filler

05 67 – 71 N 0 Sequential Count within the file. Example: ‘00003’

01 72 – 72 Filler

08 73 – 80 N 0 Transfer Date (YYYYMMDD) Example: ‘20140313’

40 81 – 120 Filler

120 Filler

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APPENDIX I

SAMPLE ELECTRICITY SUPPLY AGREEMENT – SUBJECT TO CHANGE

SAMPLE – ELECTRICITY SUPPLY AGREEMENT - SUBJECT TO CHANGE

ELECTRICITY SUPPLY AGREEMENT BETWEEN THE CITY OF HOUSTON AND ____________________

THIS ELECTRICITY SUPPLY AGREEMENT (“Agreement”) is made on the date countersigned by the City Controller (“Countersignature Date”), by and between the CITY OF HOUSTON, TEXAS (the “City”), a Texas Home Rule City of the State of Texas principally situated in Harris County, and ____________________ ("Supplier"), a [state of incorporation and organization type] company, doing business in Texas. City and Supplier are referred to in this Agreement individually as "Party" or collectively as "Parties."

The Parties agree as follows:

SECTION 1. PARTIES 1.1 Addresses of the Parties

1.1.1. The initial addresses of the Parties, which one Party may change by giving written notice of its changed address to the other Party, are as follows:

City Supplier Director or Designee ______________ _________________ Department City of Houston P. O. Box 1562

Houston, Texas 77251 1.2. Table of Contents

1.2.1. This Agreement consists of the following sections and exhibits:

ELECTRICITY SUPPLY AGREEMENT Table of Contents:

SECTION 1. PARTIES .............................................................................................................................. 1

1.1 Addresses of the Parties .............................................................................................................. 1

1.2. Table of Contents ........................................................................................................................ 1

1.3. Parts Incorporated ....................................................................................................................... 4

1.4. Controlling Parts ......................................................................................................................... 4

1.5. Signatures ................................................................................................................................... 5

SECTION 2: DEFINITIONS ...................................................................................................................... 6

SECTION 3: ENERGY SALES AND SERVICES ..................................................................................... 9

3.1. Limited Appointment and Scope. ............................................................................................ 9

3.2 Term and Delivery Term............................................................................................................ 9

3.3 Delivery Obligations. ............................................................................................................... 10

3.4. Sales Price. ............................................................................................................................... 11

3.5. Change in Law. ....................................................................................................................... 11

3.6. Customer's Right to Add and Delete Load. ............................................................................... 12


3.7. Cooperation at End of Delivery Term. ................................................................................ 13

SECTION 4: INVOICING AND PAYMENT .......................................................................................... 16

4.1. Invoicing and Payment............................................................................................................. 16

4.2. Interest on Overdue Payments, Invoice Disputes. ................................................................... 17

4.3. Customer Billing Credit. ........................................................................................................... 17

4.4. Customer Credit. ...................................................................................................................... 18

SECTION 5: NO DEBT TO CUSTOMER ............................................................................................... 18

SECTION 6: SWITCHING ...................................................................................................................... 18

6.1 Switch Reports. ......................................................................................................................... 18

6.2 Timely Switching Requirements. ............................................................................................. 18

SECTION 7: DEFAULT, EARLY TERMINATION, AND DAMAGES ................................................ 19

7.1. Events of Default....................................................................................................................... 19

7.2. Remedies Upon an Event of Default or Early Termination. ...................................................... 19

7.3 Damages Due to Supplier. ......................................................................................................... 20

7.4. Damages Due to Customer. ....................................................................................................... 21

SECTION 8: SECURITY ......................................................................................................................... 21

8.1. Security. .................................................................................................................................... 21

8.2 Option 1: Parent Guaranty. ...................................................................................................... 22

8.3. Option 2: Third-Party Guaranty. ............................................................................................. 22

8.4. Option 3: Letter of Credit. ..................................................................................................... 22

8.5. Option 4: Bond. ...................................................................................................................... 22

8.6. Election. .................................................................................................................................... 22

SECTION 9: AUDIT ............................................................................................................................... 22

SECTION 10: REPRESENTATIONS ..................................................................................................... 22

10.1. General Representation. ........................................................................................................ 22

10.2. Additional Representations of Supplier. .................................................................................... 23

10.3. Additional Representations of Customer. ................................................................................ 23

SECTION 11: TAXES.............................................................................................................................. 23

SECTION 12: ASSIGNMENT ................................................................................................................. 24

12.1 By Supplier. .............................................................................................................................. 24

12.2. By Customer. ............................................................................................................................ 24

SECTION 13: FORCE MAJEURE ........................................................................................................... 24

SECTION 14: LIMITATION OF REMEDIES, LIABILITY, AND DAMAGES; INDEMNIFICATION; AND INSURANCE ....................................................................................... 25

14.1. LIMITATION OF REMEDIES, LIABILITY, DAMAGES AND DISCLAIMER OF WARRANTIES. ......................................................................................................................... 25

14.2 INDEMNIFICATION............................................................................................................. 26


14.3. Indemnification Procedures. ....................................................................................................... 27

14.4 Insurance. ................................................................................................................................. 27

SECTION 15: CONFIDENTIALITY ...................................................................................................... 28

SECTION 16: GOVERNING LAW AND VENUE ................................................................................. 29

SECTION 17: INDEPENDENT CONTRACTOR ................................................................................... 30

SECTION 18: NO THIRD-PARTY BENEFICIARIES ........................................................................... 30

SECTION 19: NOTICES ......................................................................................................................... 30

SECTION 20: DATA OWNERSHIP, CUSTOMER SERVICE AND PUBLICITY ............................... 30

20.1. Data Ownership.................................................................................................................... 30

20.2. Electronic Access to Data. ....................................................................................................... 30

20.3. Customer Service. .................................................................................................................... 31

20.4. Publicity. .................................................................................................................................. 31

SECTION 21: DISPUTE RESOLUTION AND ENFORCEMENT .......................................................... 31

SECTION 22: CONTINUING AGREEMENT; EXPIRATION............................................................... 31

SECTION 23: TRANSFER OF TITLE .................................................................................................... 31

SECTION 24: MISCELLANEOUS ......................................................................................................... 32

SECTION 25: LIMIT OF APPROPRIATION & NON-APPROPRIATION ........................................... 32

SECTION 26: MINORITY AND WOMEN BUSINESS ENTERPRISES .............................................. 33

SECTION 27: FORWARD CONTRACT ................................................................................................ 33

SECTION 28: FAIR CAMPAIGN COMPLIANCE ................................................................................. 33

SECTION 29: EQUAL OPPORTUNITY COMPLIANCE ....................................................................... 34

SECTION 30: SOVEREIGN IMMUNITY ............................................................................................... 34

SECTION 31: ANTI-BOYCOTT OF ISRAEL ......................................................................................... 34

SECTION 32: ZERO-TOLERANCE FOR HUMAN TRAFFICKING AND RELATED ACTIVITIES 34

EXHIBIT A-l: ESTIMATED CONTRACT QUANTITIES EXHIBIT A-2: LIST OF ESIDs EXHIBIT B: PARENT OR THIRD-PARTY GUARANTY EXHIBIT C: LINE OF CREDIT EXHIBIT D: FORM OF BOND EXHIBIT E: DRUG POLICY COMPLIANCE AGREEMENT EXHIBIT F: CONTRACTOR’S CERTIFICATION OF NO SAFETY IMPACT POSITIONS EXHIBIT G: DRUG POLICY COMPLIANCE DECLARATION PRICING SCHEDULE 1: REAL TIME LMP PRICING SCHEDULE 2: HEAT RATE PRICING SCHEDULE 3: FIXED PRICE PRICING SCHEDULE 4: THIRD PARTY SUPPLY SOLAR BLOCK – FIXED PRICE


1.3. Parts Incorporated

1.3.1. The above described sections and exhibits are incorporated into this Agreement. 1.4. Controlling Parts

1.4.1. If a conflict among the sections and exhibits arises, the sections control over the exhibits.

[SIGNATURE PAGE FOLLOWS]


1.5. Signatures

1.5.1. The Parties have executed this Agreement in multiple copies, each of which is an original. Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each Party represents and warrants to the other that the execution and delivery of this Agreement and the performance of such Party’s obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such Party and enforceable in accordance with its terms. The Parties hereby agree that each Party may sign and deliver this Agreement electronically or by electronic means and that an electronic transmittal of a signature, including but not limited to, a scanned signature page, will be as good, binding, and effective as an original signature.

ATTEST/SEAL (if a corporation): WITNESS (if not corporation): By:

Name: Title:

SUPPLIER: By:

Name: Title: President Federal Tax ID No.: _________________

ATTEST/SEAL:

City Secretary

CITY: CITY OF HOUSTON, TEXAS

Mayor APPROVED:

COUNTERSIGNED BY:

Director, Finance Department

City Controller DATE COUNTERSIGNED:

APPROVED AS TO FORM:

Assistant City Attorney L.D. File No.: _________________


SECTION 2: DEFINITIONS

2.1. In addition to the words and terms defined elsewhere in this Agreement, the following terms have the meanings set out below:

2.1.1. "Actual Usage" means the actual amount of electric energy (in kWh) used at the

ESID(s) as measured by the TDSP.

2.1.2. "Addition and Deletion Allowance" shall have the meaning contained in Section 3.6.1.

2.1.3. "Agreement" means this Electricity Supply Agreement and any and all Exhibits, Pricing Schedules, attachments, and appendices, including the following:

2.1.3.1. Exhibit A-1: Estimated Contract Quantities 2.1.3.2. Exhibit A-2: List of ESIDs 2.1.3.3. Exhibit B: Parent or Third-Party Guaranty 2.1.3.4. Exhibit C: Letter of Credit 2.1.3.5. Exhibit D: Bond 2.1.3.6. Exhibit E: Drug Policy Compliance Agreement 2.1.3.7. Exhibit F: Contractor’s Certification of No Safety Impact Positions 2.1.3.8. Exhibit G: Drug Policy Compliance Declaration 2.1.3.9. Pricing Schedule 1: Real Time LMP 2.1.3.10. Pricing Schedule 2: Heat Rate 2.1.3.11. Pricing Schedule 3: Fixed Price 2.1.3.12. Pricing Schedule 4: Third Party Supply Solar Block- Fixed Price

2.1.4. "Allowable Costs" shall mean (i) in the case of Supplier, the cost incurred in

terminating this Agreement, including the costs of unwinding a hedging arrangement for electricity made by Supplier solely for this Agreement, plus the sum of reasonable brokerage fees and commissions incurred by Supplier in terminating the hedging arrangement plus attorney's fees, and (ii) in the case of Customer, the costs incurred in terminating this Agreement and obtaining a replacement agreement for electricity service, including consulting and legal fees , and (b) the costs incurred by Customer as a result of termination of the Power Purchase Agreement caused by an event of default by Supplier under the Power Purchase Agreement, including any damages payments owed by Customer to SolaireHolman.

2.1.4. “Assigned Payment Amount” has the meaning set forth in amended Section 3.1.4.

2.1.5. "Business Day(s)" mean(s) any day that is not a Saturday, Sunday or bank holiday or legal holiday recognized by the Houston City Council. In the event that any deadline set forth in this Agreement falls on a Saturday, Sunday, or City Holiday, the deadline shall automatically be extended to the next day that is not a Saturday, Sunday, or City Holiday.

2.1.6. "Contract Price" means the prices per unit of measure specified in [the attached

Pricing Schedules].

2.1.7. "Contract Year" means each twelve (12) month period during the Term of this Agreement, beginning on the Start Date (as defined in Section 3.2) for each ESID or the anniversary of the Start Date (as defined in Section 3.2), as applicable, and ending on the first meter read date on or after the anniversary of the Start Date (as defined in Section 3.2).

2.1.8. "Claim" or "Claims" means any and all judgments, claims, counterclaims, crossclaims,

causes of action, demands, lawsuits, suits, proceedings, governmental investigations or audits, losses, assessments, fines, penalties, administrative orders, obligations, costs, expenses, liabilities and damages, including interest, penalties, deficiencies, levies, duties and imposts, and reasonable attorneys' fees, disbursements and costs of


investigations. 2.1.9. "Countersignature Date" means the date countersigned by Customer's Controller after

both Parties have signed.

2.1.10. "Customer" means the City of Houston, Texas, a municipal corporation of the State of Texas.

2.1.10. "Customer's Energy Requirements" means all of Customer's electric requirements, including consumption and demand as required by the TDSP, at all of Customer's ESIDs to insure firm, full, uninterruptible electric service; provided, in no event will the amount of energy required to be supplied under this Agreement exceed the physical capabilities of TDSP's facilities or contravene applicable utility service rules or tariffs or law.

2.1.11. "Delivery Charges" are those charges, fees, credits and refunds specified in the TDSP's

tariff or otherwise ordered or adjudicated by the PUCT or by a municipality with original jurisdiction if no appeal of such tariffs or charges is made to the PUCT and charged or credited by the TDSP to Supplier for providing delivery service to Customer.

2.1.12. "Delivery Point" means the interconnection of the facilities of Customer and TDSP

located at each of Customer's ESIDs.

2.1.13. "Delivery Term" means, for each ESID, the time period beginning on the Start Date (as defined in Section 3.2) and ending on the End Date (as defined in Section 3.2), subject to any extension agreed to by Finance Director and Supplier.

2.1.14. "Discretionary Charges" means any charges, other than charges included within

Delivery Charges, permitted under the TDSP's tariff and imposed by the TDSP for services, repairs or additional equipment needed for Customer's electric service.

2.1.15. "Downgrade Event" means either (i) Guarantor (as defined in Section 2.1.25.) has its senior unsecured debt rating not supported by third-party credit enhancement, or if unavailable, its issuer credit rating ("Debt Rating"), as reported by Standard & Poor's ("S&P") or Moody's Investor Service ("Moody's"), downgraded so that it is below a rating of ______ by S&P or a rating of _____ by Moody's (such ratings herein called "Investment Grade"), or (ii) Guarantor's Debt Rating is below Investment Grade as to the Countersignature Date and is downgraded further by both S&P or Moody's.

2.1.16. "Due Date" means thirty (30) days from the date Customer receives the invoice.

2.1.17. "End Date" shall have the meaning contained in Section 3.2.

2.1.18. "Electricity Related Charges" are those charges, other than Delivery Charges or

Discretionary Charges, incurred by Supplier and directly related to the provision of electric service to Customer, including but not limited to electric energy, capacity charges, ERCOT-required ancillary services, congestion, all ERCOT fees and charges, including administrative and reliability fees, distribution and transmission losses, renewable energy credit charges, unaccounted for energy, Emergency Interruptible Load Service ("EILS") charges, reliability unit commitment ("RUC") charges, nodal related charges except those specifically identified in the Pricing Schedules as Nodal Charges, scheduling charges, and costs associated with credit, margin postings or other collateral requirements.

2.1.19. "ERCOT" means the Electric Reliability Council of Texas, Inc. or its successor.


2.1.20. "ESID" means the electric service identifier used for each of Customer's meter points on the Texas electric grid listed and on Exhibit A or that may be added to or deleted from this Agreement as provided for in Section 3.6.

2.1.21. "Estimated Quantity" or "Estimated Quantities" means the estimated kilowatt

hours (kWh) consumed during any month during the Delivery Term for all ESIDs listed in the most current Exhibit A.

2.1.22. "Finance Director" means the Director of the City of Houston Finance Department or

his or her designee as evidenced in a written notice provided by Finance Director to Supplier. Customer's Mayor may designate another department director or individual to replace the Finance Director for purposes of this Agreement, at his or her sole discretion, as evidenced in a written notice from the Mayor to Supplier.

2.1.23. “Fixed Price” means the prices per unit of measure specified in Pricing Schedule 3 and

Pricing Schedule 4.

2.1.24. "Gain" means, with respect to a Party, an amount equal to the Present Value of the economic benefit (exclusive of Allowable Costs), if any, to such Party resulting from the termination of this Agreement, determined by comparing the Present Value of this Agreement to the Present Value of a replacement contract.

2.1.25. "Guarantor" means the entity with an Investment Grade rating that is providing

security in accordance with Section 8. The Parties agree that the initial Guarantor shall be _____________________ until such time as it is replaced in accordance with Section 8.6.

2.1.26. "ISO" means the independent system operator certified by the Public Utility Commission of Texas.

2.1.27. "kWh" means kilowatt hour.

2.1.28. "MWh" means megawatt hour.

2.1.29. “Power Purchase Agreement” shall mean that certain Power Purchase Agreement for

Installed Capacity, Energy, and Environmental Attributes Between Hecate (now SolaireHolman), Supplier and Customer for Solar Energy, originally dated November 13, 2015 amended on January 21, 2016, and amended on February 28, 2017.

2.1.30. "Present Value" is discounted at the one year London InterBank Offered Rate quoted in The Wall Street Journal on the date of calculation of the Termination Payment for calculations more than six (6) months, and at the six (6) month London InterBank Offered Rate quoted in The Wall Street Journal on the date of calculation of the Termination Payment for calculations of six (6) months or less.

2.1.31. "Pricing Schedule End Date" shall have the meaning contained in the applicable

pricing schedule.

2.1.32. "Pricing Schedule Start Date" shall have the meaning contained in the applicable pricing schedule.

2.1.33. "PUCT" means Public Utility Commission of Texas or a successor agency.

2.1.34. "REP" means Retail Electric Provider.

2.1.35. “SolaireHolman” means SolaireHolman 1, LLC, a Delaware limited liability company and its successors and assigns. SolaireHolman is a subsidiary of Engie, S.A. and a successor in interest to Hecate Energy Brewster LLC.


2.1.36. “Solar Energy” has the meaning set forth in amended Section 3.8.

2.1.37. “Solar Facility” has the meaning given to it in the Power Purchase Agreement.

2.1.38. "Start Date" shall have the meaning contained in Section 3.2.

2.1.39. "Supplier" shall mean __________________________ including its agents, subcontractors, successors and assigns.

2.1.40. "Taxes" means all taxes, assessments, levies, duties, charges, fees and withholdings of

any kind levied by a duly-authorized taxing authority and all penalties, fines, and additions to tax, and interest thereon that are directly related to the services provided under this Agreement; provided, that Taxes shall not include income taxes, ad valorem taxes, Federal Excise and Transportation, Texas Limited Sales and Use, or other taxes calculated based upon Supplier's income or general commercial activities. Supplier will pass through to Customer any gross receipts tax and PUCT assessment fee for those ESIDs identified in Exhibit A, as amended from time to time, to which the gross receipts tax and PUCT assessment fee are applicable, subject to a particular ESID's status changing due to City annexation, population growth or other similar change in circumstance.

2.1.41. "Termination Payment" has the meaning and value assigned in either Section

7.3 if the Termination Payment is owed by Customer or Section 7.4 if the Termination Payment is owed by Supplier.

2.1.42. "Transmission and Distribution Service Provider" ("TDSP") means an entity

regulated by the State of Texas, which transmits or distributes electric energy.

SECTION 3: ENERGY SALES AND SERVICES

3.1. Limited Appointment and Scope.

3.1.1. Customer appoints Supplier as its REP for the ESIDs listed in Exhibit A, and as may be modified from time to time in accordance with Section 3.6. As such, Supplier shall:

3.1.1.1. provide full, firm, uninterruptible electric power to supply Customer's Energy

Requirements at the ESIDs; 3.1.1.2. timely pay all Electricity Related Charges, Delivery Charges, and

Discretionary Charges, timely pay all gross receipts taxes and PUCT assessment fees resulting from this Agreement, and timely remit to the applicable taxing authorities all Taxes that Supplier is required to collect from Customer; and

3.1.1.3. invoice Customer as detailed in this Agreement, including but not limited to

Section 4. Further, as Customer's electricity supplier, Supplier is authorized to obtain information relating to Customer's credit and electrical usage information.

3.2 Term and Delivery Term.

3.2.1. The term of this Agreement (the "Term") shall commence on the Countersignature Date and end on _________, 20__, as stated in the Pricing Schedule End Date specified in the Pricing Schedules (the "End Date"). Supplier shall supply all of Customer's Energy Requirements for the ESIDs during the Delivery Term, which, for each ESID, shall start with the first meter read date on or after the Pricing Schedule Start Date as identified in the Pricing Schedules (the "Start Date") and continue until the End Date; provided that the TDSP and ERCOT timely perform enrollment and cancellation, respectively.


3.2.1.1. Optional Extensions.

3.2.1.1.1. Upon Finance Director's request, Supplier shall propose an

indicative price to extend the Delivery Term beyond its original expiration of __________ 20__ for a time period not to exceed 12 months from the most current End Date (not to exceed _______, 202_).

3.2.1.1.2. Upon Finance Director's request, Supplier shall propose an

indicative price to further extend the Delivery Term beyond its most recent expiration of ________, 202_) for a time period not to exceed 12 months from the most current End Date set in 3.2.1.1.2. (a) (not to exceed _______, 202_).

3.2.1.1.3. Any extension pursuant to this Section. shall be effective only

upon mutual agreement to the Contract Price (which may not necessarily be the indicative price quoted pursuant to the previous sentence) for the extension of the Term and execution by the Supplier and Finance Director of a written addendum to this Agreement setting forth the applicable Contract Price and a mutually agreeable new expiration date. The Supplier and Finance Director shall update the Pricing Schedules to reflect the new Start Date, new End Date and new Contract Prices. In no event will Supplier be responsible for non-performance by the TDSP or ERCOT.

3.2.1.2. If Supplier provides electricity to the ESIDs after the expiration or

termination of the Delivery Term, including any extensions thereof pursuant to amendments executed by Supplier and Customer, and no additional agreement is entered into between Customer and Supplier, Supplier shall continue to provide Customer's Energy Requirements at a post-Delivery Term price equal to that in Pricing Schedule 1, except that the Fixed Adder shall be $20.00 MWh, and all other provisions shall be in accordance with the same terms and conditions of this Agreement, for each ESID, until either (1) a new agreement is entered into between Customer and Supplier, or (2) Customer causes its ESIDs to be switched to a new supplier. The terms “Load Zone,” “Real Time,” and “Settlement Point Price” have the meaning set forth in the Texas Nodal Protocols approved by PUCT, as amended. In no event will Supplier be responsible for non-performance by the TDSP or ERCOT.

3.3 Delivery Obligations.

3.3.1. Supplier shall:

3.3.1.1. sell, schedule, and deliver, or cause to be delivered, Customer's Energy Requirements to Customer at the Delivery Points for the Delivery Term;

3.3.1.2. prepare and send Customer for each ESID for each month an invoice via electronic transmission as requested by Finance Director, or any other mutually acceptable form as requested by Finance Director;

3.3.1.3. promptly notify Customer of all notices, alerts, orders, or other communications from the ISO or the TDSP relating to possible interruption or curtailment of the energy supply or delivery to each Delivery Point;

3.3.1.4. timely pay all undisputed Delivery Charges, Discretionary Charge, Electricity Related Charges, Taxes, fees or other charges owed to the ISO or TDSP; and


3.3.1.5. comply with all relevant provisions in the Tariff for retail delivery service of the TDSP.

3.3.2. Customer acknowledges and agrees that Supplier exercises no independent control over TDSP's facilities necessary for the delivery of energy, and NEITHER PARTY WILL HAVE LIABILITY OR RESPONSIBILITY TO THE OTHER PARTY FOR THE OPERATIONS OF ERCOT OR THE TDSP OR FOR INTERRUPTION, TERMINATION, OR DETERIORATION OF TDSP'S TRANSMISSION OR DISTRIBUTION SERVICE.

3.4. Sales Price.

3.4.1. For all Actual Usage, the Contract Price on the Pricing Schedules will apply. The

Contract Price(s) include Electricity Related Charges unless otherwise specified on the Pricing Schedules. The Contract Price does not include Delivery Charges, Discretionary Charges or Taxes, which will be passed through on Customer's invoice with no mark up.

3.5. Change in Law.

3.5.1. If either Party or its activities under this Agreement become subject to any law or

regulation enacted after the Countersignature Date ("Change in Law") that renders performance of this Agreement unenforceable or illegal, then either Party, without any obligation or other liability, whether payment or otherwise (other than payment obligations in respect of energy supplied under this Agreement), shall have the right to terminate this Agreement without consent of, and upon notice to, the other Party, upon the earlier of sixty (60) days prior notice or such prior notice effective as of the date the Change in Law becomes effective.

3.5.1.1. If a Change in Law occurs relating to the wholesale or retail electricity market

in ERCOT resulting in new or modified fees or charges being imposed upon all similarly-situated ERCOT market participants, then to the extent such fees and charges are incurred by Supplier, then either Supplier or Finance Director may propose to pass through to Customer any such increase or decrease in fees or charges without markup. In such event, Supplier and Finance Director shall negotiate in good faith to reach agreement upon the increased or decreased charges that would be passed through to Customer.

3.5.1.2. If the Parties reach agreement on the increased per MWh charges to be passed through to Customer without markup, and the increase is greater than five percent (5%) of the Contract Price, then the Agreement must be amended in accordance with Section 24.3. If the Parties reach agreement on the increased per MWh charges to be passed through to Customer without markup, and the increase is less than or equal to five percent (5%) of the Contract Price or results in decreased charges, then the new or modified charges may be considered a change order and effective upon written approval of the Finance Director and Supplier.

3.5.1.3. If, after sixty (60) days, Supplier and Finance Director cannot reach agreement, then either Party may terminate this Agreement by providing sixty (60) days prior notice to the other Party of its intent to terminate. Termination shall then be effective upon the expiration of such 60-day notice period. If either Party terminates, a liquidation payment (calculated in accordance with this Section) shall be payable by the Party that realizes a Gain as a result of the termination pursuant to this provision. The liquidation payment shall be the difference obtained 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 Delivery Term 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 Estimated Quantity for each of the ESIDs) and Delivery Points under this Agreement had it not been terminated. The market prices of a replacement contract shall be determined in accordance with Section 7.3 or 7.4, as appropriate, of this Agreement. To the extent the liquidation payment is a negative value it shall be an amount due to Customer from Supplier. To the extent the liquidation payment is a positive value it shall be an amount due to Supplier from Customer.

3.5.1.4. Alternatively, if Supplier and Finance Director do not reach agreement on a pass through of charges caused by a Change in Law, and this Agreement is not terminated, then no change shall be made to the Contract Price and no increased or decreased fees or charges shall be passed through to Customer.

3.6. Customer's Right to Add and Delete Load.

3.6.1. Addition and Deletion Allowance. Customer shall have the exclusive option to add new ESIDs or delete existing ESIDs in accordance with the provisions set forth herein. No later than thirty (30) days prior to the commencement of the Delivery Term, Finance Director shall provide Supplier an updated list of ESIDs and Exhibit A shall be revised accordingly. The net aggregate volume of ESID additions and ESID deletions ("Addition and Deletion Allowance") for the Delivery Term shall not exceed 10 percent (10%) of the total Estimated Quantities for the initial twelve (12) months of the Delivery Term as set forth in Exhibit A.

3.6.2. Addition of ESIDs. During the Delivery Term, Customer shall have the exclusive option to add ESIDs to this Agreement at the Contract Price, provided that the net cumulative change in consumption for all additions and deletions does not exceed the Addition and Deletion Allowance. Supplier agrees to process the ESID addition request within three (3) business days of Supplier's receipt of the accurate and complete addition information from Customer, including ESID, address, zip code and in the case of new ESIDs with no consumption history, the consumption projected for such added ESIDs or a reference ESID as proxy load. If the addition is considered by the Customer to be an emergency addition, then Customer will notify Supplier in its request and Supplier will endeavor to process the request within the same business day and subject to TDSP and ERCOT requirements, will further notify the TDSP to process the ESID addition via available expedited switching or enrollment processes.

3.6.3. Deletion of ESIDs. During the Delivery Term, Customer shall have the exclusive option to remove ESIDs from this Agreement without owing any form of Termination Payment, provided that the net cumulative change in consumption for all additions and deletions does not exceed the Addition and Deletion Allowance.

3.6.4. The MWh amounts stated in this Section shall be measured by historical consumption at such added ESIDs or, in the case of new ESIDs with no consumption history, the consumption projected for such added ESIDs, in Supplier's reasonable judgment and as agreed to by Finance Director. Upon addition or deletion as permitted under this Section, the Estimated Quantities in Exhibit A shall be amended to reflect any such additions and deletions; provided, however that for purposes of calculating the Addition and Deletion Allowance, only the Exhibit A in effect on Countersignature Date shall be used.

3.6.5. Customer shall be permitted to add and delete ESIDs outside of the Addition and

Deletion Allowance only if (i) in the case of a new ESIDs, Supplier and Finance Director mutually agree on a price to be applicable to Customer's electricity consumption in excess of the Addition and Deletion Allowance set forth above in this Section, or (ii) in the case of a deleted ESID, Supplier and Finance Director mutually agree on a charge or credit for the deleted ESID. Failing to reach mutual agreement,


Customer has the right to obtain supply from another REP for an additional ESID and no deletion will occur for a requested deletion of an ESID.

3.6.6. Addition and deletions of ESIDs may be formed and effectuated pursuant to an email

transmission from Finance Director to Supplier requesting that an ESID be added or deleted, together with the specified Start Date (as defined in Section 3.2) for such addition (which shall be the Start Date for purposes of Section 6.2) or effective date of any deletion and any resulting changes to Estimated Quantities, and attaching the addition/deletion form to be provided by Supplier (the "Email Request") and Supplier confirming the Email Request in a responsive email transmission attaching the updated Exhibit A (the "Email Confirmation"). Unless Customer objects in writing to any errors in the Email Confirmation within two Business Days of the Email Request date (the "Email Objection Deadline"), the Parties shall be legally bound by the updated Exhibit A attached to the Email Confirmation from the time Supplier transmits them to Customer, and if Supplier does not transmit same, no updated Exhibit A by email transmission shall be binding upon the Parties. The Email Request and Email Confirmation are adopted by the Parties as the means by which the Parties' updating of Exhibit A to the Agreement may be reduced to writing and the Parties agree not to contest or assert a defense to the validity or enforceability of such update entered into in accordance with this Section. Customer represents that Finance Director has authority to effectuate the foregoing updates to Exhibit A by email transmission. Similarly, Supplier represents that its representatives charged with implementing the foregoing have authority to effectuate the foregoing updates to Exhibit A by email transmission.

3.6.7. Customer may not add ESIDs to Pricing Schedule 3, even if such addition would be otherwise permitted under Section 3.6.1, except as required in this Section 3.6.7 or Section 3.8.1.6. If Customer wishes to delete an ESID assigned to Pricing Schedule 4, then one or more ESIDs with the same or similar load and load profile as the ESID to be deleted must be re-assigned from Pricing Schedule 2 to Pricing Schedule 4. Supplier will work with Customer and make recommendations on the ESID(s) to be re-assigned. To the extent of any conflict between this Section 3.6.7 and any other part of Section 3.6, this Section 3.6.7 will govern and control.

3.7. Cooperation at End of Delivery Term. 3.7.1. This Agreement is for the provision of essential services to Customer, the

interruption of which would cause significant harm to Customer. Supplier shall therefore cooperate with both Customer and any replacement supplier in every manner possible if Supplier is not selected to continue to supply Customer at the end of the Delivery Term, in order to effectuate a smooth transition without service interruptions. The cooperation shall include, but not be limited to supplying in a timely manner requested data relevant to this Agreement and service to Customer.

3.8 Third Party Supply.

3.8.1. Pursuant to the terms in the Power Purchase Agreement, Supplier will purchase from SolaireHolman renewable energy produced by a solar facility owned and operated by SolaireHolman, (“Solar Energy”) and resell such Solar Energy to Customer at the Contract Price specified in Pricing Schedule 4. For the avoidance of doubt, the Parties understand that Pricing Schedule 4 also includes a non-solar charge for electric power that Supplier procures in addition to the Solar Energy and resells to Customer in order to supply Customer’s full electricity requirements for the ESIDs assigned to Pricing Schedule 4. The Parties agree to the following with respect to the Power Purchase Agreement:

3.8.1.1. Supplier shall schedule and arrange for delivery of the Solar Energy to the Customer ESIDs specified in Pricing Schedule 3 and shall charge


Customer the Contract Price specified in such Pricing Schedule for the Solar Energy.

3.8.1.2. Supplier shall timely notify Customer of any material communications received by SolaireHolman, including all notices of default or termination, and shall promptly inform Customer if it believes that an Event of Default by SolaireHolman has occurred under the terms of the Power Purchase Agreement.

3.8.1.3. In the event that the Agreement terminates or expires, Supplier shall cooperate with Customer, SolaireHolman and Customer’s new retail electric provider to effectuate a smooth transition without service interruptions and Supplier agrees that it shall promptly assign all of its rights and obligations under the Power Purchase Agreement to Customer’s new retail electric provider. Upon such assignment, Supplier shall be released from all further rights and obligations under the Power Purchase Agreement, except for those that accrued prior to the date of assignment.

3.8.1.4. If, at any point during the Term, Customer is permitted by law to purchase the Solar Energy directly from SolaireHolman, the Parties agree that they will use good faith efforts to amend this Agreement and the Power Purchase Agreement to allow Customer to directly purchase the Solar Energy. In such event, Supplier agrees that it will remain the REP of record for the Customer ESIDs receiving the Solar Energy and shall coordinate with SolaireHolman to deliver the Solar Energy to such Customer ESIDs.

3.8.1.5. Repricing Lost or Curtailed Solar Power.

3.8.1.5.1. In the event that (i) the Power Purchase Agreement is terminated for any reason, including pursuant to Sections 5.2, 3.5.4 or 9.3 of the Power Purchase Agreement, and this Agreement is not also terminated, or (ii) if a force majeure event under the Power Purchase Agreement causes an outage of more than 3 MW at the Solar Facility that Customer reasonably believes, based on advice from SolaireHolman, will continue for a period of 30 days or more (“Extended Force Majeure Outage”), then the Finance Director immediately may request that Supplier propose to Customer an amended Pricing Schedule 4 to determine a Solar Replacement Price.

3.8.1.5.2. In the case of an Extended Force Majeure Outage, the “Solar Replacement Price” means a new fixed price applicable to the Solar Energy Benchmark Quantities (such term is defined in Schedule 4) that will replace the Solar Fixed Price during the Extended Force Majeure Outage. Metered consumption at the Solar Locations in excess of the Solar Energy Benchmark Quantities will continue to be priced at the Non-Solar Fixed Price. Customer must designate in its request for a Solar Replacement Price the anticipated duration of the Extended Force Majeure Outage (the “Designated Extended Force Majeure Outage Period”) and the


percentage of the Solar Energy Benchmark Quantities affected by the Extended Force Majeure Outage. If the Finance Director agrees to Supplier’s Solar Replacement Price, then it will be the basis for the Solar Replacement Price, and the Solar Replacement Price will be in effect only for the Designated Extended Force Majeure Outage Period and the designated Solar Energy Benchmark Quantities. If the Extended Force Majeure Outage ends before expiration of the Designated Extended Force Majeure Outage Period then the Solar Replacement Price will still be in effect until the end of the Designated Extended Force Majeure Outage Period. Alternatively, if the Extended Force Majeure Outage extends beyond expiration of the Designated Extended Force Majeure Outage Period, then the original Pricing Schedule 4 contract pricing will nonetheless be reinstated, unless the Finance Director timely requests a another Solar Replacement Price to take effect during another Extended Force Majeure Outage Period.

3.8.1.5.3. In the case of early termination of the Power Purchase Agreement, the Solar Replacement Price will be a blend of the price in the Non-Solar Charge and a market-based rate for a quantity equivalent to the Solar Energy Benchmark Quantity. For the avoidance of doubt, in the case of early termination of the Power Purchase Agreement, the Solar Replacement Price will replace the Solar Fixed Price and the Non-Solar Fixed price as well as the Solar Energy Deficiency Adjustment and the Excess Solar Energy Adjustment, but leave the Nodal Charges and Pass-Through Charges (as each of these capitalized terms is defined in Pricing Schedule 4). If the Finance Director agrees to the terms of the amended Pricing Schedule 3, then the existing Pricing Schedule 4 shall be replaced with the amended Pricing Schedule 4 implementing the Solar Replacement Price, to be effective at the start of the next billing cycle, unless otherwise agreed by the Finance Director and Supplier.

3.8.1.5.4. Until such time as the Finance Director and Supplier agree on a Solar Replacement Price, the Contract Price for all consumption metered at the Solar Locations that is not Actual Solar Delivery (as that term is defined in Pricing Schedule 4) will be the Non-Solar Fixed Price, subject to the Solar Energy Deficiency Adjustment, plus Nodal Charges, plus Pass-Through Charges (as each of these capitalized terms is defined in Pricing Schedule 4).

3.8.1.6. In the event that Customer elects to exercise the Option For Additional 20 MWh set forth in Article 11 under the Power Purchase Agreement, Customer must (a) (i) confer with Supplier to determine whether additional ESIDs must be re-assigned from Pricing Schedule 2 to Pricing Schedule 4 so that the expected non-solar load and load profile assigned to Pricing Schedule 4 is substantially the same as before


exercise of the option, or (ii) agree with Supplier to a modification of the Non-Solar Fixed Price under the Pricing Schedule 4, and (b) agree to a replacement Exhibit A to Pricing Schedule 4, designating new Solar Energy Benchmark Quantities. If Supplier and Customer do not agree to a re-assignment of ESIDs or price modification and a replacement Exhibit A to Pricing Schedule 4 as described in (a) and (b) above, then Customer will not exercise the option. For the avoidance of doubt, the Solar Fixed Price under Pricing Schedule 4 will not be affected by exercise of the option.

SECTION 4: INVOICING AND PAYMENT

4.1. Invoicing and Payment.

4.1.1. Supplier shall invoice Customer every Business Day based on all meter read data received from ERCOT; provided, however, that unmetered street light invoices shall be submitted one day a month on a mutually agreeable Business Day. This process shall be repeated each Business Day so that Supplier transmits bills for all ESIDs subject to this Agreement once a month during the Delivery Term. The invoice amount will be based on actual data provided by ERCOT and the TDSP.

4.1.1.1. Format. Unless otherwise approved by Finance Director in writing, all

invoices must be submitted electronically in the format approved by Finance Director and Supplier and shall clearly show the usage since the last meter read, demand data, TDSP charges, and any other charges that appear on the invoice for each ESID. Unmetered street light invoices may be provided on paper and shall include spreadsheet data providing invoice summary, bill estimator, lamp codes, rate factors, inventory revisions, and any other mutually agreeable information. Customer shall notify Supplier if any invoice is not submitted materially in the required format, and such materially nonconforming invoice shall be deemed not delivered until corrected by Supplier.

4.1.1.2. Due Date. Customer will remit payment within thirty (30) days from the date of receipt (the "Due Date"); provided, however that a discount to the Contract Price may be applied if payment is made within a shorter time period. Any such prompt payment discount shall be set forth on the applicable Pricing Schedule.

4.1.1.3. Estimated Invoices. If ERCOT or the TDSP do not provide actual data

within ten (10) Business Days after the scheduled meter read, Supplier may use estimated data to calculate Customer's invoice and, upon receipt of actual data, reconcile the charges and adjust them as needed in subsequent invoices; provided that Supplier shall not be obligated to bill on the basis of estimated data only. Any estimated invoices shall be clearly marked with the phrase "ESTIMATED INVOICE". In the event that Supplier does not receive all data necessary to issue a bill to Customer within thirty (30) days from the date of the meter read, and no estimated invoice has been sent, Finance Director has the right to request an estimated invoice. Estimation will include only the Contract Price and Electricity Related Charges portions of the invoice.

4.1.1.4. Assignment of Payments. Pursuant to Section 7.3 of the Power Purchase

Agreement, Supplier has assigned to Customer, and gives Customer an irrevocable payment instruction to remit, the monthly payment due from


Supplier to SolaireHolman directly to SolaireHolman (“Assigned Payment Amount”). Customer agrees that it shall directly pay SolaireHolman the Assigned Payment Amount under the payment terms set forth in the Power Purchase Agreement. Supplier agrees that it will not seek payment of the Assigned Payment Amount from Customer. However, all other amounts due to Supplier pursuant to Pricing Schedule 4 shall be paid by Customer to Supplier in accordance with the payment terms set forth in Section 4.1 of this Agreement.

4.2. Interest on Overdue Payments, Invoice Disputes.

4.2.1. If Customer fails to remit all undisputed amounts on or before the Due Date, Supplier shall notify Customer in writing of the delinquency as soon as possible.

4.2.1.1. If Customer does not pay any undisputed, outstanding amounts by the Due Date, interest shall automatically accrue at the lesser of 1% per month or the highest rate allowed by Texas Government Code §2251.025, from and including the Due Date to, but excluding, the date payment is received by Supplier.

4.2.1.2. If Customer in good faith disputes any or all of an invoice, it shall (a) provide Supplier, on or before the Due Date as shown on the invoice, a written explanation, including via electronic mail, specifying the amount in dispute and the reason for the dispute, and (b) pay Supplier the undisputed amount. If timely notice of a dispute is not given, all amounts will be owed by the Due Date. In all cases, Supplier and Customer will use good faith efforts to resolve any dispute. For the avoidance of doubt, the Customer may notify Supplier if Supplier submits an invoice or data containing incomplete or inaccurate data, or if an exception report is generated, in which case any invoices impacted shall be considered disputed by Customer. The Due Date shall be suspended while a dispute is being investigated and resolved. Once a dispute is resolved, Customer shall pay any amounts owed, and Supplier shall refund any amounts owed, within thirty (30) days of the date of resolution.

4.2.1.3. In the event the Parties are unable to resolve the dispute within forty-five (45)

days after the Due Date, either Party may institute dispute resolutions proceedings in accordance with Section 21. Any amounts determined owed will be paid within thirty (30) days of the decision, plus interest will accrue monthly from the date such amount was originally paid by Customer or due to Supplier to, but excluding, the date such amount is paid or refunded to the Customer, at a rate of 1% per month or the highest rate permitted by Texas Government Code §2251.025,whichever is less.

4.3. Customer Billing Credit.

4.3.1. Customer shall, at its sole discretion, receive a check, electronic funds transfer, or credit

against amounts owed under this Agreement for any amount, including any interest, received by Supplier that represents a refund or return of overcollections or overrecovery, whether agreed to by the Parties or ordered by the PUCT or court of competent jurisdiction. If a refund is due as a result of a PUCT order or the order of a court of competent jurisdiction, payment shall be due to Customer within 30 days after (a) the order becomes final and non-appealable and (b) the refund is received by Supplier, if the refund is payable by the TDSP or other third party, for electric services paid by a group of customers that includes Customer, whether or not Supplier is otherwise obligated to return the money to its customers. The credit, including any interest agreed to or ordered by the PUCT, shall be in an amount equal to the portion of the refund or return attributable to Customer as a customer of the relevant class.


4.4. Customer Credit. 4.4.1. If Customer is late by more than fifteen (15) Business Days in paying an undisputed

invoice after notice is provided pursuant to Section 4.2, and the overdue amounts represented by such invoices amount to more than one-half of the total invoices in dollar amounts for the Customer for any month, Supplier may request a deposit or other security. In no event will the requested deposit be more than two times the largest, approximate, monthly invoice amount. Deposits will be in forms acceptable to Supplier and will accrue interest in accordance with the rates set by the PUCT. All cash deposits and any accrued interest will be returned within thirty (30) days after the end of the Delivery Term, less any amounts owed by Customer.

SECTION 5: NO DEBT TO CUSTOMER

5.1 IF SUPPLIER, AT ANY TIME DURING THE TERM OF THIS AGREEMENT, INCURS A DEBT, AS THE WORD IS DEFINED IN SECTION 15-122 OF THE HOUSTON CITY CODE OF ORDINANCES, IT SHALL IMMEDIATELY NOTIFY THE CITY CONTROLLER IN WRITING. IF THE CITY CONTROLLER BECOMES AWARE THAT SUPPLIER HAS INCURRED A DEBT, SHE OR HE SHALL IMMEDIATELY NOTIFY SUPPLIER IN WRITING. IF SUPPLIER DOES NOT PAY THE DEBT WITHIN THIRTY (30) DAYS OF EITHER SUCH NOTIFICATION, THE CITY CONTROLLER MAY DEDUCT FUNDS IN AN AMOUNT EQUAL TO THE DEBT FROM ANY PAYMENTS OWED TO SUPPLIER UNDER THIS AGREEMENT, AND SUPPLIER WAIVES ANY RECOURSE THEREFOR.

5.2 SUPPLIER SHALL FILE A NEW AFFIDAVIT OF OWNERSHIP, USING THE FORM DESIGNATED BY CUSTOMER, BETWEEN FEBRUARY 1 AND MARCH 1 OF EVERY YEAR DURING THE TERM OF THIS AGREEMENT.

SECTION 6: SWITCHING 6.1 Switch Reports.

6.1.1. In the event that a switch of electric providers is required, then if requested by Finance Director, Supplier shall provide to Finance Director, or to Finance Director's designated agent, a periodic report updating Finance Director on the status of any switches requested by Finance Director for the Customer's ESIDs. This information shall be provided in an Excel spreadsheet or other mutually agreeable electronic format and shall contain the following information for each ESID: the ESID address, meter read date, and the date on which each Texas Standard Electric Transaction (SET) transaction was submitted or received by Supplier.

6.2 Timely Switching Requirements.

6.2.1. If required to supply Customer, Supplier shall timely submit all required Texas SET transactions and other information required by ERCOT or the TDSP for each ESID so that service may commence on the Start Date (as defined in Section 3.2) and shall track all switches through to completion as required by Section 6.1. If, as a result of Supplier's action or inaction, and provided that Customer has provided Supplier with an accurate ESID, address, and has not requested a switch from a REP other than Supplier, service to Customer is unable to commence on the Start Date (as defined in Section 3.2), Supplier shall pay to Customer the positive amount, if any, equal to the difference between the price charged by Customer's then-current REP minus the Contract Price multiplied by the number of kilowatt hours used, as shown on bills received from the Customer's then-current REP, during the time period that any switch was delayed as a result of Supplier's action or omission; provided, in no event will Supplier be responsible for non-performance by the TDSP or ERCOT. Payments shall be due and payable 30 days after Customer provides a copy of the bill from a REP other than Supplier, together with any other supporting documentation reasonably requested by


Supplier in order to verify Customer's claim. Interest on any payment not made by the due date shall accrue from the due date until the date paid at a rate of equal to 1% per month or the highest rate permitted by Texas Government Code §2251.025, whichever is less. This provision shall survive the termination of this Agreement.

SECTION 7: DEFAULT, EARLY TERMINATION, AND DAMAGES

7.1. Events of Default.

7.1.1. An "Event of Default" means:

7.1.1.1. the failure of Customer to make, when due, any undisputed payment required under this Agreement if the payment is not made within ten (10) Business Days after receipt of written notice via certified mail to Finance Director from Supplier; or

7.1.1.2. any representation or warranty made by a Party proves to be false or misleading in any material respect; or

7.1.1.3. the failure of any Party to perform its obligations under this Agreement

and the failure is not excused by Force Majeure; or

7.1.1.4. either Party or its credit support provider fails to provide and maintain, or cause to be provided and maintained, any deposit, security or other credit support required under this Agreement, including, but not limited to, Section 8; or

7.1.1.5. either Party (i) makes an assignment or any general arrangement for

the benefit of creditors; or (ii) files a petition or otherwise commences, authorizes or acquiesces to a bankruptcy proceeding or similar proceeding for the protection of creditors, or has the petition filed against it and the petition is not withdrawn or dismissed within 20 Business Days after the filing; or (iii) otherwise becomes insolvent; or (iv) is unable to pay its debts as they fall due (If an Event of Default listed in this subsection (e) occurs, a Default will be deemed to have automatically occurred on the day immediately prior to the event); or

7.1.1.6. either Party assigns this Agreement in violation of Section 12; or

7.1.1.7. Supplier's Guarantor experiences a Downgrade Event; provided that this

default will be deemed cured if, within ten (10) calendar days of the Downgrade Event, Supplier provides to Customer substitute security described under Section 8.2, Section 8.3, Section 8.4, or Section 8.5 from a substitute Guarantor whose Debt Rating is equal to or higher than the Debt Rating of the original Guarantor as of the Countersignature Date (see Section 12.1).

7.1.1.8. The occurrence of an event of default by Supplier under the Power Purchase

Agreement that Supplier does not cure within the applicable cure period.

7.2. Remedies Upon an Event of Default or Early Termination.

7.2.1. If Customer has an Event of Default and fails to cure such default within the later often Business Days after receipt of written notice or the period specified in Section 7.1, or Customer terminates early for a reason other than (a) a Supplier's default under Section 7.1, or (b) pursuant to Sections 3.5 (Change in Law), Supplier may terminate this Agreement and switch Customer to the provider of last resort service.


7.2.2. If Supplier has an Event of Default and fails to cure such Default within ten (10) Business Days after receipt of written notice or the period set forth in Section 7.1, is prohibited by law from selling electricity to Customer ,or terminates this Agreement early for a reason other than (a) Customer Default under Section 7.1 or pursuant to Section 3.5, then Customer may terminate this Agreement and switch to another electricity supplier.

7.2.3. If this Agreement is terminated pursuant to this Section, the non-defaulting Party shall in good faith calculate the amounts due under Section 7.3 or 7.4, as appropriate, and the defaulting Party shall pay those amounts within thirty (30) days from the date of termination.

7.2.4. Remedies Cumulative. Unless otherwise specified elsewhere in this Agreement, the rights and remedies contained in this Agreement are not exclusive, but are cumulative of all rights and remedies which exist now or in the future. Neither party may terminate its duties under this Agreement except in accordance with its provisions.

7.3 Damages Due to Supplier.

7.3.1. If this Agreement is terminated by Supplier due to an Event of Default in which Customer is the defaulting Party, the Parties agree that, in addition to all amounts Customer may owe Supplier prior to the termination, Customer shall pay a Termination Payment to Supplier, which shall be the positive amount, if any, calculated as the sum of:

(A) the Present Value of the product of

(i) all remaining unpurchased quantities of electricity through the end of the Delivery Term, which, for purposes of calculating the Termination Payment, shall be deemed equal to the Estimated Quantities set forth in Exhibit A, multiplied by

(ii) the Contract Price that Customer would have paid for the unpurchased quantities through the end of the Delivery Term minus the Current Retail Market Value for the unpurchased quantities at the time of termination;

(B) plus Supplier's Allowable Costs; (C) minus any amounts due to Customer under this Agreement.

7.3.2. The Termination Payment shall be due and payable within thirty (30) days following the

termination date. The Current Retail Market Value in this instance shall mean the price that Supplier would reasonably be able to obtain from a bona-fide third party if entering into a contract with another customer for the unpurchased quantities and for the remainder of the Delivery Term. Supplier shall use commercially reasonable efforts to mitigate its damages. If the funds appropriated by Customer for electric service during the Delivery Term are insufficient to pay the Termination Payment due to Supplier, Supplier may request that Customer appropriate additional money to fully pay such Termination Payment, provided, however, Customer has no obligation to request additional appropriation and has no obligation to make payments on unappropriated Termination Payment until such funds are appropriated.

7.3.3. As of the termination date, Supplier shall have no further duty to supply electricity to Customer, and Supplier shall switch service for the ESIDs to the Customer's appropriate provider of last resort if Customer has not made arrangements with another REP on the termination date.


7.4. Damages Due to Customer.

7.4.1. If this Agreement is terminated by Customer due to an Event of Default in which Supplier is the defaulting Party, the Parties agree that, in addition to all amounts Supplier may owe Customer prior to the termination, Supplier shall pay a Termination Payment to Customer, which shall be the positive amount, if any, calculated as the sum of:

(A) the Present Value of the product of

(i) all remaining unpurchased quantities of electricity through the end

of the Delivery Term, which, for purposes of calculating the termination payment, shall be deemed equal to the Estimated Quantities set forth in Exhibit A, multiplied by

(ii) the Current Retail Market Value for the unpurchased quantities at the time of termination minus the Contract Price that Customer would have paid for the unpurchased quantities through the end of the Delivery Term;

(B) plus Customer's Allowable Costs;

(C) plus any amounts due to Customer under this Agreement; (D) minus any amounts due to Supplier under this Agreement, including, but not

limited to, amounts due and owing for electricity delivered to Customer under this Agreement.

7.4.2. The Termination Payment shall be due and payable within thirty (30) days following the termination date. The Current Retail Market Value in this instance shall mean the price that Customer would reasonably be able to obtain from a bona-fide third party if entering into a contract with another supplier for the unpurchased quantities and for the remaining Delivery Term; provided however that if an Event of Default by Supplier occurs under Section 7.1.1.8., then the Current Retail Market Value for purposes of the unpurchased quantities under Pricing Schedule 3 shall mean the price that Customer would reasonably be able to obtain from a bona-fide third party if entering into a contract with another supplier of renewable energy for the unpurchased Solar Energy Benchmark Quantity and for the remaining Delivery Term. Customer shall use commercially reasonable efforts to mitigate its damages.

SECTION 8: SECURITY

8.1. Security.

8.1.1. Supplier shall provide and maintain in effect during the Term of this Agreement, or cause a credit support provider approved by Finance Director to provide and maintain in effect during the Term, security for Supplier's performance of obligations. The security shall be in an amount of ten million dollars ($10,000,000.00), be from an entity with an Investment Grade rating, as defined in Section 2.1.15., and shall be in the form of the options set forth in this Section. It is understood and agreed that the provision of the security as provided for in this Section is a material inducement to Customer to enter into this Agreement and that the failure of Supplier to provide or cause to be provided this security within ten (10) Business Days from the Countersignature Date shall be an Event of Default by Supplier. Parties agree that the provision of security under this Section shall not be construed to create a joint venture or partnership between the Parties.


8.2 Option 1: Parent Guaranty.

8.2.1. The security shall be in the form of a parental guarantee ("Parent Guaranty"), which shall be issued by Guarantor and the Parent Guaranty in the form of Exhibit B to this Agreement.

8.3. Option 2: Third-Party Guaranty. 8.3.1. The security shall be in the form of a third-party guarantee ("Third-Party

Guaranty"), which shall be issued by Guarantor and the Third-Party Guaranty in the form of Exhibit B to this Agreement.

8.4. Option 3: Letter of Credit. 8.4.1. The security shall be in the form of a letter of credit ("LOC"), which shall be issued

by Guarantor in the form of Exhibit C to this Agreement.

8.5. Option 4: Bond.

8.5.1. The security shall be in the form of a [[[payment/performance]]] bond ("Bond"), which shall be issued by Guarantor in the form of Exhibit D to this Agreement.

8.6. Election. 8.6.1. Supplier hereby elects Option {#} to comply with this Section. During the Term,

Supplier may change its election only with the prior written approval of Finance Director, who shall not vary the terms of the Agreement, including this Section and Exhibits D, E and F, unless doing so would be a material benefit to the Customer. Finance Director may not consider or approve any option than those contained in this Section. Supplier's notice to change its security option election must contain the identity of the new Guarantor, a name and contact at the Guarantor, and sufficient documentation that Guarantor meets the requirements of the Agreement for Finance Director to make an informed decision.

SECTION 9: AUDIT

9.1. Supplier shall provide or cause to be provided all information that Customer may reasonably request to substantiate all invoices, adjustments and claims under this Agreement. Customer shall provide or cause to be provided all information that Supplier may reasonably request to substantiate the actual Customer's Energy Requirements, which enters into the calculation of amounts invoiced, and claims under this Agreement. Each Party has the right, at its sole expense, during normal working hours, and upon at least five (5) Business Days notice, to audit the books and records that relate to the information described in this Section. The audit rights shall extend for a period of four (4) years from the Agreement's termination date and no adjustment for any statement or payment will be made unless objection to the accuracy thereof was made prior to the expiration of this period. Any audit shall, at the option of the requesting Party, be performed by designated employees, consultants or agents of the requesting Party that the requesting Party determines in its sole discretion are experienced in utility practices. Upon request, the Party subject to the audit will be entitled to review the complete audit report and any supporting materials. Information provided by Supplier in order to verify the accuracy of a Supplier invoice may constitute proprietary and confidential information. If information is requested under the Texas Public Information Act (“Act”), Customer shall notify the Supplier, who may take action to protect the information under the Act, unless determined otherwise by the Texas Attorney General or a court of competent jurisdiction.

SECTION 10: REPRESENTATIONS

10.1. General Representation.


10.1.1. Each Party represents to the other that it has knowledge and experience that enable it to evaluate the merits and risks associated with this Agreement.

10.2. Additional Representations of Supplier.

10.2.1. Supplier represents as part of this Agreement that:

10.2.1.1. it has the power and authority to execute this Agreement;

10.2.1.2. it is authorized and qualified to do business in the jurisdictions necessary to

perform under this Agreement;

10.2.1.3. the execution, delivery and performance of this Agreement are duly authorized and do not violate any governing documents, any contract to which it is a party or any laws applicable to it; and

10.2.1.4. the electricity to be sold to Customer shall be timely 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 under this Agreement, 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.

10.3. Additional Representations of Customer.

10.3.1. Customer represents that:

10.3.1.1. the data given and representations made concerning its ESID(s) are, to the

best of its knowledge, true and correct when given;

10.3.1.2. it is authorized and qualified to do business in the jurisdictions necessary to perform under this Agreement;

10.3.1.3. the execution, delivery and performance of this Agreement are duly authorized

and do not violate any governing documents, its Charter, any contract to which it is a party or any laws applicable to it;

10.3.1.4. Customer is entering into this Agreement to purchase its electric energy

requirements only and it will not resell any electric energy purchased under this Agreement to any third party; and

10.3.1.5. no employee of Customer that has been an employee of Supplier within

the past year has been or will be materially involved in either the negotiation of or the activities contemplated by this Agreement.

10.3.2. Customer further represents that Finance Director are fully authorized to take the actions

and execute the documents expressly provided for under this Agreement, and that Supplier may rely on such actions and documents as binding and enforceable against Customer.

SECTION 11: TAXES

11.1. Customer is exempt from payment of Federal Excise and Transportation taxes and Texas Limited Sales and Use Tax. Supplier's invoices to the Customer shall not contain assessments of any of these taxes. Finance Director will furnish the Customer's exemption certificate and federal tax identification number to Supplier if requested.


SECTION 12: ASSIGNMENT 12.1 By Supplier.

12.1.1. If there is no Supplier Event of Default, Supplier may, upon thirty (30) days prior written notice and without the consent of Customer, assign, sell, pledge, transfer, or encumber any of its rights and obligations hereunder or the accounts, revenues, or proceeds hereof to: (a) a bank or other financial institution; or (b) any person or entity succeeding to all or substantially all of Supplier's assets, or (c) to any affiliate of Supplier; provided that, with respect to (b) and (c), the succeeding entity has all regulatory approvals required to provide service to Customer, assumes all of Supplier's obligations under this Agreement, including providing security, if required under this Agreement, and the succeeding entity or its Guarantor has a credit rating, at the time of the Assignment, equal to or better than Standard & Poor's "A-" rating and can demonstrate that it has the experience to perform the Supplier's obligations hereunder. No assignment pursuant to (a) above shall relieve Supplier of any of its obligations arising prior to the assignment; provided that if a bank or financial institution to which Supplier's rights and obligations under this Agreement are pledged as collateral sells or assigns Supplier's rights and obligations under this Agreement in the exercise of such bank's or financial institution's rights as a secured creditor, then such bank or financial institution shall not have any further obligations regarding future performance under this Agreement. All other assignments by Supplier shall require the prior written consent of Finance Director and the consent shall not be unreasonably withheld. Any assignment by Supplier not in accordance with this Section shall be void and of no effect.

12.2. By Customer. 12.2.1. Finance Director may assign the Customer's rights and obligations hereunder as to any

one or more of the Delivery Points covered by this Agreement; provided, (a) it gives Supplier thirty (30) days written notice of its intent to do so; (b) there is no Event of Default; (c) the assignee satisfies Supplier's credit requirements; and (d) the assignee assumes Customer's obligations hereunder; provided further, any assignment of a Delivery Point under this provision shall not be included in the calculations in Section 3.6 of ESIDs deleted during the Contract Year. All other assignments by Customer shall require the prior written consent of Supplier and the consent shall not be unreasonably withheld or unduly delayed. Any assignment by Customer not in accordance with this Section shall be void and of no effect. If an assignment of less than all Delivery Points occurs, the Pricing Schedules and Exhibit A will be amended to reflect the change and future usage will continue to be governed by this Agreement.

SECTION 13: FORCE MAJEURE

13.1. Neither Party will be obligated to perform under this Agreement or be liable in damages for:

13.1.1. any act or event that is beyond the Party's control and which could not reasonably be anticipated or prevented through the use of reasonable measures, including, but not limited to, an act of God, act of public enemy, terrorism, war, insurrection, riot, fire, explosion, flood, hurricane, labor disturbance, or strike, wildlife, unavoidable accident, or by any other cause that by the exercise of reasonable diligence the Party could not have prevented or is unable to overcome; or

13.1.2. good faith compliance with a valid curtailment, order, regulation or restriction

imposed by governmental, military, or lawfully established civilian authorities, including any order or directive of ERCOT; or

13.1.3. failure of necessary transmission or distribution facilities that prevents the

delivery of electricity under this Agreement; or


13.1.4. failure of the TDSP to deliver electricity; or

13.1.5. 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 was not caused by negligence and prevents the delivery of electricity; or

13.1.7. reductions or interruptions in service as a result of ERCOT declared emergency

conditions that are necessary to protect generating or transmission facilities or the reliability of transmission facilities.

13.2. If either Party is rendered unable by Force Majeure to carry out, in whole or in part, its obligations under this Agreement, then during the Force Majeure, but for no longer period, the obligations of the Parties (except for the obligation to make payments when due for performance prior to the Event of Force Majeure) will be suspended. Payment will not be required if Supplier cannot deliver or if Customer cannot receive electricity due to a Force Majeure event. Any Party so affected, however, must notify the other in writing as soon as practicable and in all cases within three (3) days of the event and in such notice shall specify details of the event and the expected time of suspension. Any Force Majeure will, so far as possible, be remedied with all due diligence and reasonable dispatch.

13.3. Neither financial distress nor the inability of either Party to make a profit or avoid a financial loss shall be deemed a Force Majeure event, nor shall (i) changes in the market price of fuel, energy or electricity, or (ii) a Party's financial inability to perform its obligations under this Agreement, constitute an event of Force Majeure under this Agreement.

SECTION 14: LIMITATION OF REMEDIES, LIABILITY, AND DAMAGES; INDEMNIFICATION; AND INSURANCE

14.1. LIMITATION OF REMEDIES, LIABILITY, DAMAGES AND DISCLAIMER OF WARRANTIES. 14.1.1. FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY IS

PROVIDED, THE EXPRESS REMEDY WILL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR'S LIABILITY WILL BE LIMITED AS SET FORTH IN THE PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY WILL NOT APPLY. IF NO EXPRESS REMEDY IS PROVIDED, THE DEFAULTING PARTY'S LIABILITY WILL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY. THE DIRECT ACTUAL DAMAGES WILL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES AT LAW OR IN EQUITY WILL NOT APPLY. THE DEFAULTING PARTY WILL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. THE PARTIES INTEND THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSES RELATED THERETO INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER THE NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE LIQUIDATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS.


14.2 INDEMNIFICATION.

14.1.2. SUPPLIER AGREES TO AND SHALL DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS AGENTS, EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES (COLLECTIVELY THE "CITY") HARMLESS FOR ALL CLAIMS, CAUSES OF ACTION, LIABILITIES, FINES, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES, COURT COSTS, AND ALL OTHER DEFENSE COSTS AND INTEREST) FOR INJURY, DEATH, DAMAGE, OR LOSS TO PERSONS OR PROPERTY SUSTAINED IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, THOSE CAUSED BY:

14.1.2.1. SUPPLIER OR ITS AGENTS', EMPLOYEES', OFFICERS',

DIRECTORS', CONTRACTORS', OR SUBCONTRACTORS' (COLLECTIVELY IN THIS SECTION 14.2. ONLY, "SUPPLIER") ACTUAL OR ALLEGED NEGLIGENCE OR INTENTIONAL ACTS OR OMISSIONS; AND

14.1.2.2. THE CITY'S AND SUPPLIER'S ACTUAL OR ALLEGED

CONCURRENT NEGLIGENCE, WHETHER SUPPLIER IS IMMUNE FROM LIABILITY OR NOT; AND

14.1.2.3. THE CITY'S AND SUPPLIER'S ACTUAL OR ALLEGED STRICT

PRODUCTS LIABILITY OR STRICT STATUTORY LIABILITY, WHETHER SUPPLIER IS IMMUNE FROM LIABILITY OR NOT.

SUPPLIER'S OBLIGATION TO DEFEND, INDEMNIFY, AND HOLD THE CITY HARMLESS UNDER THIS SECTION 14.2 WILL BE EFFECTIVE THE INITIAL TERM AND ANY RENEWAL TERM OF THIS AGREEMENT AND FOR FOUR YEARS AFTER THE AGREEMENT TERMINATES. SUPPLIER'S INDEMNIFICATION OBLIGATION UNDER THIS SECTION 14.2 IS LIMITED TO $500,000 PER OCCURRENCE.

In the event Supplier shall be liable for any loss, costs and expenses pursuant to this Section 14.2, any insurance proceeds shall first apply, other than as stipulated in the relevant policy, to the loss, costs and expenses. If such proceeds are insufficient to cover all such loss, costs and expenses, Supplier shall be liable for and shall pay for all sums in excess of such insurance proceeds.

14.2.2. No Limitation. In any and all Claims against any of the Indemnified Parties by any employee of Supplier or any employee of any subcontractors or suppliers, or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligation under Section 14.2 shall not be limited in any way by any limitation on the amount or type of damages, compensation acts, disability benefit acts or other employee benefits acts, nor by the provision by Supplier of any insurance required to be provided under this Agreement.

14.2.3. Title, Risk of Loss. As between the Parties, Supplier shall be deemed to be in exclusive control (and responsible for any damage or injury caused thereby) of the electricity to be delivered to Customer pursuant to this Agreement prior to the delivery to the Delivery Point and Supplier shall have no responsibility for and Customer shall be liable for or responsible for any damages or injury caused by electricity at and from the Delivery Point.


14.3. Indemnification Procedures.

14.3.1. Notice of Claims. If the Customer receives notice of any Claim or circumstances which could give rise to an indemnified loss, Customer shall give written notice to Supplier within thirty (30) days. The notice must include the following:

14.3.1.1. a description of the indemnification event in reasonable detail,

14.3.1.2. the basis on which indemnification may be due, and

14.3.1.3. anticipated amount of the indemnified loss. This notice does not estop or prevent the Customer from later asserting a different basis for indemnification or a different amount of indemnified loss than that indicated in the initial notice. If the Customer does not provide this notice within the thirty (30) day period, it does not waive any right to indemnification except to the extent that Supplier is prejudiced, suffers loss, or incurs expense because of the delay.

14.3.2. Defense of Claims.

14.3.2.1. Assumption of Defense. Supplier may assume the defense of the claim at its own expense with counsel chosen by it that is reasonably satisfactory to Customer. Supplier shall then control the defense and any negotiations to settle the claim. Within ten (10) days after receiving written notice of the indemnification request, Supplier must advise Customer as to whether or not it will defend the claim. If Supplier does not assume the defense, Customer shall assume and control the defense, and all defense expenses constitute an indemnification loss.

14.3.2.2. Continued Participation. If Supplier elects to defend the claim, Customer may retain separate counsel to participate in (but not control) the defense and to participate in (but not control) any settlement negotiations. Supplier may settle the claim without the consent or agreement of Customer, unless it (i) would result in injunctive relief or other equitable remedies or otherwise require Customer to comply with restrictions or limitations that adversely affect Customer, (ii) would require Customer to pay amounts that Supplier does not fund in full, (iii) would not result in Customer's full and complete release from all liability to the plaintiffs or claimants who are parties to or otherwise bound by the settlement.

14.3.2.3. Cooperation. So long as Supplier is defending in good faith any such third party Claim, demand, suit, action or proceeding, the Indemnified Party shall at all times cooperate in all reasonable ways with, make relevant files and records available for inspection by, and make its employees available or otherwise render reasonable assistance to, Supplier (with all reasonable out-of-pocket costs, excluding costs of employees' time, in connection with this Section 14.2 to be borne by Supplier).

14.4 Insurance.

14.4.1. Supplier shall maintain in effect certain insurance coverage and shall furnish certificates of insurance, in duplicate form, before beginning its performance under this Agreement and shall keep such insurance in effect at all times during the Term. All insurance policies must (i) name Customer as an additional insured, except the Worker's Compensation/Employer's Liability insurance policies, (ii) have a Certificate of Authority to transact insurance business in Texas or be an eligible non-admitted insurer in the State of Texas and have a Best's rating of at least B+ and a Best's Financial Size Category of Class VI or better, according to the most current edition Best's Key Rating Guide, (iii) require on their face, or by endorsement, that the insurance carrier waives


any rights of subrogation against Customer. 14.4.2. Supplier shall maintain the following insurance coverages in the following amounts:

COVERAGE LIMIT OF LIABILITY

Workers’ Compensation Statutory for Workers’ Compensation

Employer's Liability • Bodily Injury by Accident $1,000,000 (each accident) • Bodily Injury by Disease $1,000,000 (policy limit) • Bodily Injury by Disease $1,000,000 (each employee)

Commercial General Liability, including Bodily Injury, including death, Personal Injury and Property Damage, and a policy extension for Contractual Liability

Bodily Injury and Property Damage, Combined Limits of $1,000,000 each Occurrence, and $2,000,000 aggregate

Automobile Liability $1,000,000 combined single limit for (1) Any Auto or (2) All Owned, Hired, and Non-Owned Autos

Excess Liability Coverage, or Umbrella Coverage, for Commercial General Liability and Automobile Liability Combined Limits of $10,000,000 each Occurrence, and

$10,000,000 aggregate Aggregate Limits are per 12-month policy period unless otherwise indicated.

14.4.3. Notice. SUPPLIER SHALL GIVE THIRTY (30) DAYS' ADVANCE WRITTEN NOTICE TO THE FINANCE DIRECTOR IF ANY OF ITS INSURANCE POLICIES ARE CANCELED OR NON-RENEWED. Within the aforementioned thirty (30) day period, Supplier shall provide other suitable policies in lieu of those about to be canceled, or nonrenewed so as to maintain in effect the required coverage. If Supplier does not comply with this requirement, Finance Director, at his or her sole discretion, may:

14.4.3.1. immediately suspend Supplier from any further performance under this

Agreement and begin procedures to terminate for default, or 14.4.3.2. purchase the required insurance with City funds and deduct the cost of the

premiums from amounts due to Supplier under this Agreement.

SECTION 15: CONFIDENTIALITY 15.1. In order for Supplier or City personnel to perform the obligations under this Agreement, it may

become necessary for either party to receive or have access to specifications, designs, plans, drawings, software, data prototypes, or other technical or business information of the other party that either existed before performance of work or was subsequently developed independent of the parties performance of contract obligations (“Background Information”), which is considered proprietary or confidential by the other party. In addition, information developed in connection with the performance of this Agreement (“Delivered Information”), which is provided under this Agreement is proprietary and confidential. All Background Information and all Delivered Information are collectively referred to in this Section as “Information.”

15.1.1. The party to whom Information is disclosed, shall:

15.1.1.1. hold the Information in confidence and protect it in accordance with the security regulations by which it protects its own proprietary or confidential information;

15.1.1.2. restrict disclosure of the Information solely to those employees, agents and

representatives with a need to know; and


15.1.1.3. advise those employees, agents and representatives of their obligations with

respect to the Information.

15.1.2. The party to whom Information is disclosed shall have no obligation to preserve the proprietary nature of any Information that: 15.1.2.1. was previously known to it free and clear of any obligation to keep it

confidential; 15.1.2.2. except as otherwise provided under this Agreement, is disclosed to third

parties by the disclosing party without restriction; 15.1.2.3. is or becomes publicly available by other than unauthorized disclosure; 15.1.2.4. is independently developed by it; or 15.1.2.5. is disclosed in response to requests made under the Texas Public Information

Act or a court order. However, the party ordered to disclose the Information shall (i) give the disclosing party of the Information or software prompt written notice of all such requests, and (ii) cooperate with the disclosing party’s efforts to obtain a protective order protecting the Information or Software from disclosure.

15.1.3. Neither party shall be liable for the inadvertent or accidental disclosure of Information,

if the disclosure occurs despite the exercise of a reasonable degree of care, which is at least as great as the care the party normally takes to preserve its own proprietary information of a similar nature.

15.1.4. All Information owned by Supplier or its suppliers and furnished to the City under this

Agreement is the property of Supplier or the supplier, and unless otherwise expressly provided in the applicable Order, the City, its agents and representatives shall:

15.1.4.1. use Information only to install, operate, or maintain the product(s) for which

originally furnished or to perform an audit conducted by City employees or a third party to assess Supplier’s performance under the Agreement and the effectiveness of systems, software, and equipment provided by Supplier;

15.1.4.2. use Information only for the City’s internal business purposes; 15.1.4.3. not reproduce or copy Information except as authorized under this Agreement

unless the parties otherwise agree in writing; 15.1.4.4. not use the Information to develop other software; 15.1.4.5. return or destroy the Information and any copies when no longer needed or

permitted for use with the product for which initially furnished; and 15.1.4.6. not remove Information from the United States.

15.1.5. Upon request, the receiving party shall return to the furnishing party all Background

Information received in tangible form that is not part of the Delivered Information.

SECTION 16: GOVERNING LAW AND VENUE 16.1. This Agreement shall be construed and interpreted in accordance with the applicable laws of

the State of Texas and City of Houston. Venue for any disputes relating in any way to this Agreement shall lie exclusively in Harris County, Texas.


SECTION 17: INDEPENDENT CONTRACTOR

17.1. Supplier is acting as an independent contractor under this Agreement, and nothing in the Agreement should be construed to create or imply any joint venture, partnership or any other type of business association.

SECTION 18: NO THIRD-PARTY BENEFICIARIES

18.1. Nothing in this Agreement provides a benefit to any third-party. Each Party will be responsible for paying its own agents, brokers and representatives unless otherwise agreed to in writing by all Parties.

SECTION 19: NOTICES

19.1. All notices, which includes invoices, relating to this Agreement will be in writing and they will be deemed given when received. Except for Billing notices and invoices, Notices to Supplier will be sent to the "Notice Address" listed in the Pricing Schedules. Billing notices, including invoices, to Customer will be sent to the "Billing Address" listed on the Pricing Schedules. All other notices to Customer will be sent to: City of Houston Finance Department 611 Walker St., Tenth Floor Houston, TX 77002 Attn: Finance Director City of Houston Legal Department 900 Bagby, Fourth Floor Houston, TX 77002 Attn: City Attorney

19.2. All notices must be in writing and must be delivered by hand, facsimile, United States registered or certified mail, return receipt requested, United States Express Mail, Federal Express, UPS or any other national overnight express delivery service. The day notice is received, provided it is before 5:00 p.m. CST, will be counted as the first day of any applicable notice period. If notice is received after 5:00 p.m. CST, the notice will be deemed received the following Business Day. Postage or delivery charges must be paid by the Party giving the notice.

19.3. Billing notices and invoices shall also be delivered by electronic mail to one or more e-mail addresses provided by a Party unless otherwise agreed to by Finance Director. SECTION 20: DATA OWNERSHIP, CUSTOMER SERVICE AND PUBLICITY

20.1. Data Ownership.

20.1.1. Supplier agrees that all data that it receives relating to Customer's electric accounts is the proprietary information of the Customer. Supplier agrees that upon request from Finance Director, and within ten (10) Business Days after such request, Supplier will provide Finance Director or Finance Director's designated agent with an electronic file, in a format mutually acceptable to Supplier and Finance Director, that will contain all of the demand, usage and TDSP charge information for each ESID. Finance Director agrees not to request this information more than four (4) times per twelve (12) month period for any ESID. The obligation of Supplier to provide this information shall survive the termination of this Agreement and shall expire only when all data relating to all of Customer's ESIDs has been provided to Customer or Customer's designated agent.

20.2. Electronic Access to Data.


20.2.1. In addition to the obligation to provide data under Section 20.1., Supplier shall make available to Finance Director and Finance Director's designated agent or agents, access to all usage and billing information through a secure electronic interface over the Internet. The system shall be available within sixty (60) days from the start of the Delivery Term and shall continue to be available for a period of one-hundred and twenty (120) days from the end of the Delivery Term. Information provided under this Section shall be updated periodically, but in no event, other than one of Force Majeure, shall more than five (5) Business Days pass between updates to this information.

20.3. Customer Service. 20.3.1. Supplier recognizes that customer service is an essential part of services requested by

Customer. Supplier shall use commercially reasonable efforts to provide high quality reliable service to Customer. In order to meet this requirement, Supplier shall designate one or more account representatives who shall serve as the primary point of contact for the Customer if Finance Director or Finance Director's designated agent has any questions. At the time the Agreement is executed by Supplier, Supplier shall provide the Customer with the name, telephone number, fax number, title, and a copy of the resume for the account representative(s). Supplier shall not change the account representative(s) without Finance Director's prior written approval.

20.4. Publicity.

20.4.1. Supplier shall make no announcement or release of information concerning this

Agreement unless the release has been submitted to and approved, in writing, by the Finance Director.

SECTION 21: DISPUTE RESOLUTION AND ENFORCEMENT

21.1. 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 thirty (30) days of the written notification, either Party may pursue all available legal remedies.

21.2. The City Attorney or his or her designee may enforce all legal rights and obligations

under this Agreement without further authorization. Supplier shall provide to the City Attorney all documents and records that the City Attorney requests to assist in determining Supplier's compliance with this Agreement, with the exception of those documents made privileged or confidential by federal or State law or regulation or by ruling of any court having jurisdiction.

SECTION 22: CONTINUING AGREEMENT; EXPIRATION

22.1. This Agreement will continue in full force until the expiration of the Delivery Term, but,

notwithstanding the expiration, this Agreement will continue in full force and effect until all obligations then outstanding (whether absolute or contingent) have been satisfied in full.

22.2. Supplier shall remain obligated to the Customer under all clauses of this Agreement that expressly or by their nature extend beyond the expiration or termination of this Agreement, including but not limited to, the indemnity provisions.

SECTION 23: TRANSFER OF TITLE

23.1. The title of electricity purchased under this Agreement shall transfer from Supplier to Customer at the Delivery Points.


SECTION 24: MISCELLANEOUS

24.1. A waiver of any provision in this Agreement, or of any default by either Party, will not be construed as a waiver of any other (or like) provision or default in the future;

24.2. the headings used are for reference purposes only and will in no way affect the meaning of the provisions of this Agreement;

24.3. no amendment hereto will be enforceable unless in writing and executed by both Parties, and approved by Customer's City Council;

24.4. any provision herein deemed unenforceable or illegal will be ineffective to the extent of the unenforceability or unlawfulness without invalidating the remaining provisions hereof, unless the result materially prejudices either Party;

24.5. facsimile copies and photocopies of this Agreement are to be treated as originals in the event an original is not available;

24.6. if any term of this Agreement is ambiguous, it shall not be construed for or against any Party on the basis that the Party did or did not write it; and

24.7. this Agreement is not exclusive, except for the ESIDs identified in Exhibit A or added pursuant to Section 3.6, so that Customer is free to contract with other REPs for locations other than those specified herein.

SECTION 25: LIMIT OF APPROPRIATION & NON-APPROPRIATION

25.1. The Customer's duty to pay money to Supplier for any purpose under this Agreement is limited in its entirety by the provisions of this Section.

25.2. In order to comply with Article II, Sections 19 and 19a of the Customer's Charter and Article XI, Section 5 of the Texas Constitution, the Customer has appropriated and allocated the sum of $0.00 to pay money due under this Agreement (the "Original Allocation"). The executive and legislative officers of the Customer, in their discretion, may allocate supplemental funds for this Agreement, but they are not obligated to do so. Therefore, the parties have agreed to the following procedures and remedies.

25.3. The Customer makes a Supplemental Allocation by issuing to Supplier a Service Release Order, or similar form approved by the City Controller, containing the language set out below. When necessary, the Supplemental Allocation shall be approved by motion or ordinance of Customer's City Council.

NOTICE OF SUPPLEMENTAL ALLOCATION OF FUNDS

By the signature below, the City Controller certifies that, upon the request of the Director, the supplemental sum set out below has been allocated for the purposes of the Agreement out of funds appropriated for this purpose by the City Council of the City of Houston. This Supplemental Allocation has been charged to such appropriation.

$_______________.

25.4. The Original Allocation plus all supplemental allocations are the "Allocated Funds." The

Customer shall never be obligated to pay any money under this Agreement in excess of the Allocated Funds. Supplier must assure itself that sufficient allocations have been made to pay for electricity it provides. If Allocated Funds are exhausted, Supplier's only remedy is


suspension or termination of its performance under this Agreement and it has no other remedy in law or in equity against the City and no right to damages of any kind. Customer agrees, to the full extent allowed by Texas law, that if any funds are appropriated for energy costs, such funds shall be applied first to the cost of energy provided pursuant to this Agreement and that any such funds shall not be used to pay for energy from any other energy power provider.

SECTION 26: MINORITY AND WOMEN BUSINESS ENTERPRISES

26.1. Supplier shall comply with Customer's Minority and Woman Business Enterprise ("MWBE") programs as set out in Chapter 15, Article V of the City of Houston Code of Ordinances. Supplier shall make good faith efforts to award electricity supply agreements for at least 15% of the Estimated Quantities to MWBE wholesale electricity suppliers (excluding brokers) that have all required PUCT registrations, which Customer agrees shall constitute compliance with the requirements of the first sentence of this Section. Supplier acknowledges that it has reviewed the requirements for good faith efforts on file with Customer's Office of Business Opportunities ("OBO") and will comply with them.

26.2. Contractor shall ensure that all subcontracts with MWBE subcontractors and suppliers contain the following terms:

26.2.1. (MWBE subcontractor) shall not delegate or subcontract more than 50% of the work under this subcontract to any other subcontractor or supplier without the express written consent of the City of Houston's OBO Director ("the Director").

26.2.2. (MWBE subcontractor) shall permit representatives

of the City of Houston, at all reasonable times, to perform (1) audits of the books and records of the subcontractor, and (2) inspections of all places where work is to be undertaken in connection with this subcontract. Subcontractor shall keep such books and records available for such purpose for at least four (4) years after the end of its performance under this subcontract. Nothing in this provision shall affect the time for bringing a cause of action nor the applicable statute of limitations.

26.2.3. Within five business days of execution of this subcontract, Contractor (prime contractor)

and Subcontractor shall designate in writing to the Director an agent for receiving any notice required or permitted to be given pursuant to Chapter 15 of the Houston City Code of Ordinances, along with the street and mailing address and phone number of such agent.

26.2.4. Any controversy between the parties involving the construction or application of any of

the terms, covenants, or conditions of this subcontract may be submitted to the Director. The Director may prescribe procedures to provide dispute resolution by neutrals in accordance with the requirements of Chapter 15 of the Houston City Code of Ordinances.

SECTION 27: FORWARD CONTRACT

27.1. The Parties acknowledge and agree that this Agreement constitutes a "forward contract"

within the meaning of the United States Bankruptcy Code, 11 U.S.C. Section 101 et. seq.

SECTION 28: FAIR CAMPAIGN COMPLIANCE 28.1. Supplier agrees to comply with the City of Houston's Fair Campaign Compliance ordinance

codified in Section 18-36 in the City of Houston's Code of Ordinances, and in the Mayor's Executive Order No. 1-26 by submitting Form A in the Mayor's Administrative Procedure 2-7 prior to the Countersignature Date.


SECTION 29: EQUAL OPPORTUNITY COMPLIANCE

29.1. Supplier shall comply with the City’s Equal Employment Opportunity Ordinance as set out in Section 15-17 of the Code of Ordinances.

SECTION 30: SOVEREIGN IMMUNITY

30.1. Nothing in this Agreement or any action taken by Customer in accordance with this Agreement shall be construed to waive or limit Customer's sovereign immunity.

SECTION 31: ANTI-BOYCOTT OF ISRAEL

31.1. Contractor certifies that Contractor is not currently engaged in, and agrees for the duration of this Agreement not to engage in, the boycott of Israel as defined by Section 808.001 of the Texas Government Code.

SECTION 32: ZERO-TOLERANCE FOR HUMAN TRAFFICKING AND RELATED

ACTIVITIES 32.1. The requirements and terms of the City of Houston’s Zero Tolerance Policy for Human

Trafficking and Related Activities, as set forth in Executive Order 1-56, as revised from time to time, are incorporated into this Agreement for all purposes. Contractor has reviewed Executive Order 1-56, as revised, and shall comply with its terms and conditions as they are set out at the time of this Agreement’s Effective Date. Contractor shall notify the City’s Chief Procurement Officer, City Attorney, and the Director of any information regarding possible violation by Contractor or its subcontractors providing services or goods under this Agreement.


EXHIBIT A-l: ESTIMATED CONTRACT QUANTITIES LIST OF ESIDs, AND

ASSOCIATED PRICING SCHEDULES

Updated: ____{DATE}_____

ESTIMATED ANNUAL CONTRACT QUANTITIES (MWh):

Monthly Volumes (Non-Streetlight Meters) Month kWh

ESTIMATED QTY: FY 2020 TOTAL ESTIMATED QUANTITY:

Monthly Volumes (Non-Streetlight Meters)

Month kWh

ESTIMATED QTY: FY 2021 ESTIMATED QUANTITY:

Monthly Volumes (Streetlight Meters) Month kWh

ESTIMATED QTY:


ESTIMATED QTY:


Monthly Volumes (Non-Streetlight Meters) Month kWh

ESTIMATED QTY: FY 2022 ESTIMATED QUANTITY:


ESTIMATED QTY:

* Ramp out month


Updated {DATE}


Exhibit A-2 List of ESIDs


EXHIBIT B: EQUAL EMPLOYMENT OPPORTUNITY

1. The contractor, subcontractor, vendor, supplier, or lessee will not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, or age. The contractor, subcontractor, vendor, supplier, or lessee will take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, religion, color, sex, national origin, or age. Such action will include, but not be limited to, the following: employment; upgrading; demotion or transfer; recruitment advertising; layoff or termination; rates of pay or other forms of compensation and selection for training, including apprenticeship. The contractor, subcontractor, vendor, supplier or lessee agrees to post in conspicuous places available to employees, and applicants for employment, notices to be provided by the City setting forth the provisions of this Equal Employment Opportunity Clause.

2. The contractor, subcontractor, vendor, supplier, or lessee states that all qualified applicants will receive consideration for employment without regard to race, religion, color, sex, national origin or age.

3. The contractor, subcontractor, vendor, supplier, or lessee will send to each labor union or representatives of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer advising the said labor union or worker's representative of the contractor's and subcontractor's commitments under Section 202 of Executive Order No. 11246, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

4. The contractor, subcontractor, vendor, supplier, or lessee will comply with all provisions of Executive Order No. 11246 and the rules, regulations, and relevant orders of the Secretary of Labor or other Federal Agency responsible for enforcement of the equal employment opportunity and affirmative action provisions applicable and will likewise furnish all information and reports required by the Mayor and/or Contractor Compliance Officer(s) for purposes of investigation to ascertain and effect compliance with this program.

5. The contractor, subcontractor, vendor, supplier, or lessee will furnish all information and reports required by Executive Order No. 11246, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to all books, records, and accounts by the appropriate City and Federal Officials for purposes of investigations to ascertain compliance with such rules, regulations, and orders. Compliance reports filed at such times as directed shall contain information as to the employment practice policies, program, and work force statistics of the contractor, subcontractor, vendor, supplier, or lessee.

6. In the event of the contractor's, subcontractor's, vendor's, supplier's, or lessee's non-compliance with the non-discrimination clause of this contract or with any of such rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part, and the contractor, subcontractor, vendor, supplier, or lessee may be declared ineligible for further City contracts in accordance with procedures provided in Executive Order No. 11246, and such other sanctions may be imposed and remedies invoked as provided in the said Executive Order, or by rule, regulation, or order of the Secretary of Labor, or as may otherwise be provided by law.

7. The contractor shall include the provisions of paragraphs 1-8 of this Equal Employment Opportunity Clause in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of September 24, 1965, so that such provision will be binding upon each subcontractor or purchase order as the contracting agency may direct as means of enforcing such provisions including sanctions for noncompliance; provided, however, that in the event the contractor becomes involved in, or is threatened with litigation with a subcontractor or vendor as a result of such direction by the contracting agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.

8. The contractor shall file and shall cause his or her subcontractors, if any, to file compliance reports with the City in the form and to the extent as may be prescribed by the Mayor. Compliance reports filed at such times as directed shall contain information as to the practices, policies, programs, and employment policies and employment statistics of the contractor and each subcontractor.


EXHIBIT B: PARENT OR THIRD-PARTY GUARANTY

GUARANTY AGREEMENT

Granted By

on behalf of \ SUPPLIER 1

Granted To City of Houston Regarding Electric Supply Agreement dated [ EFFECTIVE DATE 1 Effective Date [ EFFECTIVE DATE ] Termination 15 business days prior written notice of termination Amount US $10,000,000 Subject to the following terms and conditions:

1. Parties. This Guaranty Agreement ("Guaranty"), effective as of [ DATE ] (the "Effective Date"), is made and entered into by [ PARENT OR THIRD-PARTY ], a [ STATE ] corporation ("Guarantor"), on behalf of [ SUPPLIER ], and its successors and assigns ("Supplier") in favor of City of Houston, a municipal corporation of the State of Texas, its successors and permitted assigns ("Beneficiary").

2. Contract Guaranteed. This Guaranty is given in consideration of Beneficiary having entered into the Electric Supply Agreement with an effective date of [ EFFECTIVE DATE ], by and between Beneficiary and [ SUPPLIER ], for the purchase and sale of electric energy, as such Electric Supply Agreement may be amended from time to time (the "Guaranteed Contract").

3. Guaranty. Subject to the provisions hereof, Guarantor hereby irrevocably and unconditionally guarantees to Beneficiary, the prompt payment when due, subject to any applicable grace period, of all of Supplier's payment obligations to Beneficiary arising under the Guaranteed Contract, including any Termination Payment and any interest on any amount due (the "Obligations"). For the avoidance of doubt, by accepting this Guaranty, Beneficiary understands and agrees that this Guaranty applies only to the obligations and liabilities of Supplier arising under or attributable to the Guaranteed Contract, and not to any obligations or liabilities of any entity other than Supplier. This Guaranty shall constitute a guarantee of payment and not of collection or performance. In the event that any payment of Supplier in respect of any Obligations is rescinded or recovered from Beneficiary as a preference or fraudulent transfer under the Federal Bankruptcy Code, or any applicable state law, Guarantor shall remain liable hereunder in respect of such Obligations as if such payment had not been made. IF AND TO THE EXTENT ANY PAYMENT MADE PURSUANT TO THE OBLIGATIONS UNDER THE GUARANTEED CONTRACT IS DEEMED TO CONSTITUTE LIQUIDATED DAMAGES, THE PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE AND THAT SUCH PAYMENT CONSTITUTES A REASONABLE APPROXIMATION OF THE AMOUNT OF SUCH DAMAGES, AND NOT A PENALTY. The liability of Guarantor under this Guaranty is subject to the following:

3.1 IN NO EVENT SHALL GUARANTOR BE LIABLE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE, INDIRECT, OR INCIDENTAL DAMAGES (WHETHER OR NOT ARISING FROM A PARTY'S NEGLIGENCE), UNLESS SUCH DAMAGES ARE RECOVERABLE UNDER THE GUARANTEED CONTRACT.

3.2 Notwithstanding anything to the contrary, the liability of Guarantor under this


Guaranty and Beneficiary's right of recovery is limited to an amount of US $10,000,000 (the "Guarantor's Liability Limit"). This amount includes reasonable out-of-pocket expenses (including reasonable attorney's fees) to enforce this Guaranty, but only to the extent payment under this Guaranty is otherwise due.

3.3 Without limiting Guarantor's own defenses and rights hereunder, Guarantor reserves to itself all rights, setoffs, counterclaims and other defenses to which Supplier is or may be entitled to arising from or in connection with the Guaranteed Contract, except for defenses arising out of the bankruptcy, insolvency, dissolution or liquidation of Supplier.

3.4 Guarantor agrees that its Obligations shall be unconditional, irrespective of the validity, regularity or enforceability of the Guaranteed Contract; the absence of any action to enforce the same; any waiver or consent by the Beneficiary concerning any provisions thereof; the rendering of any judgment against Supplier or any action to enforce the same; or any other circumstances that might otherwise constitute a legal or equitable discharge of an guarantor or a defense of a guarantor.

3.5 Notwithstanding anything in this Guaranty to the contrary, this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time, either before or after the Termination hereof, payment of the Obligations guarantied pursuant to this Guaranty, or any part thereof is rescinded or must otherwise be returned by Beneficiary upon the insolvency, bankruptcy or reorganization of Supplier, all as though such payment had not been made.

4. Expenses. The Guarantor agrees to pay on demand all reasonable out-of-pocket expenses (including the reasonable fees and expenses of Beneficiary's counsel) in any way relating to the enforcement or protection of the rights of Beneficiary hereunder. This provision is subject to the limitations in Section 3.02.

5. Cumulative Rights. Each and every right and power hereby granted to Beneficiary or allowed it by law or other agreement shall be cumulative and not exclusive of any other, and may be exercised by Beneficiary from time to time. Nothing contained in this Guaranty shall toll, limit or otherwise affect the running or impact of any applicable statute of limitations.

6. Consents and Waivers.

6.01 Guarantor hereby waives notice of acceptance of this Guaranty, other than Beneficiary's signature on this Guaranty, as well as diligence, presentment, notice of dishonor, protest, notice of any sale or collateral security and all other notices whatsoever.

6.2 Guarantor hereby waives any right to require that any action or proceeding be brought against Supplier, or any other obligor principally or secondarily liable, prior to any action against Guarantor, including the filing of claims with a court in the event of insolvency or bankruptcy of Supplier.

6.3 Guarantor agrees that its obligations hereunder shall not be affected by the existence, validity, enforceability, perfection, or extent of any collateral.

6.4 Except as to applicable statutes of limitation, Guarantor hereby agrees that no delay of Beneficiary in the exercise of, or failure to exercise, any rights hereunder shall operate as a waiver of such rights, a waiver of any other rights or a release of Guarantor from any obligations hereunder.


6.5 Guarantor consents to the renewal, compromise, extension, acceleration or other changes in the time of payment or terms of the Obligations, or changes or modifications to the terms of the Guaranteed Contract, provided that in no event shall Guarantor's liability under this Guaranty be increased above Guarantor's Liability Limit as a result of such changes.

6.6 Guarantor agrees that Beneficiary may, at any time and from time to time, without notice to or consent of the Guarantor and without impairing or releasing the obligations of the Guarantor hereunder: (a) make any change in the terms of any Obligation or liability of Supplier to Beneficiary; (b) take or fail to take any action of any kind in respect of any security or any Obligation or liability of Supplier to Beneficiary; (c) exercise or refrain from exercising any rights against Supplier or others, or (d) waive or compromise any right under any Guaranteed Contract or subordinate any Obligation or liability of Supplier to Beneficiary including any security therefore.

6.7 No failure or delay on the part of Beneficiary to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by Beneficiary or any right, remedy or power hereunder preclude any other or future exercise of any right, remedy or power.

7. Continuing Guaranty. This Guaranty is a continuing Guaranty and shall remain in full force and effect until the later of the following: (i) the Guaranteed Contract terminates or expires by its terms and is no longer in full force and effect and (ii) all the Obligations have been satisfied in full, including the payment of any Termination Payment owed by Supplier under the Guaranteed Contract. This Guaranty shall not be discharged except by complete payment of the amounts payable under the Guaranteed Contract. This Guaranty shall continue to be effective if Supplier merges or consolidates with or into another affiliated entity, loses its separate legal identity or ceases to exist.

8. Subrogation. Upon payment in full of the Obligations, Guarantor shall be subrogated to the corresponding rights of Beneficiary against Supplier with respect to any and all such payments made by Guarantor hereunder, and Beneficiary shall take, at Guarantor's expense, all such steps as the Guarantor may reasonably request to implement such subrogation.

9. Assignment. Neither Beneficiary nor Guarantor may assign its rights, interest or obligations in this Guaranty to any other person without the prior written consent of the other, which consent shall not be unreasonably withheld and any purported assignment absent such consent is void.

10. Notice. All notices or other communication to be given by any party to another hereunder shall be in writing and delivered personally or mailed by certified mail, postage prepaid and return receipt requested, or by overnight courier. Notice given by personal delivery, overnight courier or mail shall be effective upon actual receipt. Notice shall be to the following addresses or such address as either the Guarantor or Beneficiary shall from time to time specify to the other in writing:

To Guarantor/Supplier: To Beneficiary:

City of Houston Finance Department 611 Walker St., 11th Floor

Houston, TX 77002


Attn: Finance Director

City of Houston Legal Department 900 Bagby, 4th Floor Houston, TX 77002 Attn: City Attorney

11. Representations and Warranties. Guarantor represents and warrants that:

(a) it is a corporation duly organized and validly existing under the laws of the State of [ STATE ] and has the corporate power and authority to execute, deliver and carry out the terms and provisions of this Guaranty;

(b) no authorization, approval, consent or order of, or registration or filing with, any court or other governmental body having jurisdiction over Guarantor is required on the part of Guarantor for the execution and delivery of this Guaranty;

(c) the execution, delivery and performance of this Guaranty have been and remain duly authorized by all necessary corporate action and do not contravene any provision of law or of the Guarantor's constitutional documents or any contractual restriction binding on the Guarantor or its assets;

(d) this Guaranty, when executed and delivered, will constitute a valid and legally binding agreement of Guarantor and complies with all applicable laws;

12. Severability. If one or more provisions of this Guaranty shall for any reason or to any extent be determined invalid or unenforceable, all other provisions shall nevertheless remain in full force and effect.

13. Governing Law. This Guaranty shall in all respects be governed by, and construed in accordance with, the law of the State of Texas, without regard to principles of conflicts of laws.

IN WITNESS WHEREOF, the Guarantor has executed this Guaranty on the effective date first written above.

[ PARENT OR THIRD-PARTY GUARANTOR ]

By:

Name: Title:

ACCEPTED BY: Beneficiary acknowledges and accepts the above Guaranty.

City of Houston

By: Name: Title: Date:


EXHIBIT C: LETTER OF CREDIT

[Bank LETTERHEAD TO BE INSERTED]

IRREVOCABLE STANDBY LETTER OF CREDIT

Reference Number:

Issuance Date:

BENEFICIARY:

Ladies and Gentlemen:

[ ] (the "Bank") hereby establishes this Irrevocable Standby Letter of Credit ("Letter of

Credit") in favor of the City of Houston, a municipal corporation of the State of Texas (the "Beneficiary"), for the account of [Name of Supplier] (the "Applicant"), for the amount of Ten Million Dollars ($10,000,000.00) (the "Available Amount"), effective immediately and expiring on the Expiration Date (as defined below).

This Letter of Credit shall be of no further force or effect at 5:00 p.m. New York time on

[ ___ DATE ______ ]or, if such day is not a Business Day (as hereinafter defined), on the next

Business Day (the "Expiration Date"), unless this Letter of Credit is extended by the written agreement of the Bank and the Applicant.

For the purposes hereof, "Business Day" shall mean any day on which commercial banks are not authorized or required to close in New York, New York.

Subject to the terms and conditions herein, funds under this Letter of Credit are available to

Beneficiary by presentation at _____________________ , on or prior to 5:00 p.m. New York time

on any Business Day, on or prior to the Expiration Date of the following:

1 The original of this Letter of Credit and all amendments (or photocopy of the original for partial drawings); and

2 The Drawing Certificate issued in the form of Attachment B attached hereto and which forms an integral part hereof, duly completed and purportedly bearing the signature of an authorized representative of the Beneficiary.

Notwithstanding the foregoing, any drawing hereunder may be requested by transmitting the

requisite documents as described above to the Bank by facsimile at _________ or such other number

as specified from time-to-time by the Bank. Any claims made by facsimile must be confirmed by the


Beneficiary to the Bank at __________________________.

The facsimile transmittal shall be deemed delivered when received. Drawings made by facsimile transmittal are deemed to be the operative instrument without the need of originally signed documents.

Partial drawing of funds shall be permitted under this Letter of Credit, and this Letter of Credit shall remain in full force and effect with respect to any continuing balance;

provided that, the Available Amount shall be reduced by the amount of each such drawing.

This Letter of Credit is not transferable or assignable. Any purported transfer or assignment shall be void and of no force or effect.

Banking charges shall be the sole responsibility of the Applicant.

This Letter of Credit sets forth in full our obligations and such obligations shall not in any way be modified, amended, amplified or limited by reference to any documents, instruments or agreements referred to herein, except only the attachment referred to herein; and any such reference shall not be deemed to incorporate by reference any document, instrument or agreement except for such attachment.

The Bank engages with the Beneficiary that Beneficiary's drafts drawn under and in strict compliance with the terms of this Letter of Credit will be duly honored if presented to the Bank on or before the Expiration Date.

Except so far as otherwise stated, this Letter of Credit is subject to the International Standby Practices ISP98 (also known as ICC Publication No. 590), or revision currently in effect (the "ISP"). As to matters not covered by the ISP, the laws of the State of New York (without regard to the principles of conflicts of laws thereunder except Sections 5-1401 and 5-1402 of the New York General Obligations Law) shall govern all matters with respect to this Letter of Credit.

BANK:

Name:

Title:


EXHIBIT C: ATTACHMENT A

Drawing Certificate

TO: IRREVOCABLE STANDBY LETTER OF CREDIT

No.

DRAWING CERTIFICATE

To: Address:

Subject: Irrevocable Standby Letter of Credit

Reference Number:

The undersigned ____________________ , an authorized representative of the City of Houston (the

"Beneficiary"), hereby certifies to __________________________ (the "Bank"), and

________________ (the "Applicant"), with reference to Irrevocable Nontransferable Standby

Letter of Credit No. { _______________________ }, dated ______________ , (the "Letter of

Credit"), issued by the Bank in favor of the Beneficiary, as follows as of the date hereof:

1. The Beneficiary is entitled to draw under the Letter of Credit an amount equal to $10,000,000.00, for the following reason(s) [check applicable provision]:

[ ]A. An Event of Default, as defined in that certain Energy Supply Agreement entered

into between the Beneficiary and the Applicant, dated ___________________ (the

"Agreement"), with respect to the Applicant has occurred and is continuing.

[ ]B. A Termination Payment (as defined in the Agreement) is owed by Applicant

pursuant to the terms of the Agreement and such amount has not been timely paid by Applicant.

[ ]C. The Letter of Credit will expire in fewer than 20 Business Days (as defined in the Agreement) from the date hereof, and Applicant has not provided Beneficiary alternative Performance Assurance (as defined in the Agreement) acceptable to Beneficiary.

[ ]D. The Bank has heretofore provided written notice to the Beneficiary of the Bank's intent not

to renew the Letter of Credit following the present Expiration Date thereof ("Notice of Non-renewal"), and Applicant has failed to provide the Beneficiary with a replacement letter of credit satisfactory to Beneficiary in its sole discretion within thirty (30) days following the date of the Notice of Non-renewal.


[ ]E. The Beneficiary has not been paid any or all of the Applicant's payment obligations now due and payable under the Agreement.

2. Based upon the foregoing, the Beneficiary hereby makes demand under the Letter of

Credit for payment of _______ U.S. DOLLARS AND______ /lOOths (U.S.$ _______ ),

which amount does not exceed (i) the amount set forth in paragraph 1 above, and (ii) the Available Amount under the Letter of Credit as of the date hereof.

3. Funds paid pursuant to the provisions of the Letter of Credit shall be wire transferred to the Beneficiary in accordance with the following instructions:

Unless otherwise provided herein, capitalized terms which are used and not defined herein shall have the meaning given each such term in the Letter of Credit.

IN WITNESS WHEREOF, this Certificate has been duly executed and delivered on behalf of the Beneficiary by its authorized representative as of this ________ day of ____________________ , _____ .

Beneficiary: City of Houston

By:

Name:

Title:


EXHIBIT D: FORM OF BOND

Bond Number:

PERFORMANCE BOND

KNOW ALL MEN BY THESE PRESENTS, That we, ___________________________________ ,

(hereinafter called the Principal), as Principal, and NAME OF SURETY COMPANY , duly organized under the laws of the State of. , (hereinafter called the Surety), as Surety, are held and firmly bound unto

______________________________________________________ , (hereinafter called the Obligee), in the

sum of ___________ ($ ___ ) Dollars, for the payment of which sum well and truly to be made, we, the said

Principal and the said Surety, bind ourselves, our heirs, executors, administrators, successors and assigns.

WHEREAS, said Principal has entered into a written Contract with said Obligee, dated _____, for

______________________________________x in accordance with the terms and conditions of said Contract,

which is hereby referred to and made a part hereof as if fully set forth herein:

NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, That if the above bounden Principal shall well and truly keep, do and perform each and every, all and singular, the matters and things in said contract set forth and specified to be by said Principal kept, done and performed, at the times and in the manner in said contract specified, or shall pay over, make good and reimburse to the above named Obligee, all loss and damage which said Obligee may sustain by reason of failure or default on the part of said Principal so to do, then this obligation shall be null and void; otherwise shall remain in full force and effect.

FURTHERMORE, Notwithstanding the provisions of the Contract, the term of this bond shall apply from

_______________ , 20 ___ , until ________________ , 20 ___, and may be extended by the Surety by

Continuation Certificate. However, neither non-renewal by the Surety, nor the failure or inability of the Principal to file a replacement bond in the event of non-renewal, shall itself constitute a loss to the Obligee recoverable under this bond or any renewal or continuation thereof. Regardless of the number of years this bond is in effect, the liability of the Surety under this bond and all continuation certificates issued in connection therewith shall not be cumulative and shall in no event exceed the amount as set forth in this bond or in any additions, riders, or endorsements properly issued by the Surety as supplements thereto. In no event shall Surety's aggregate liability exceed the penal sum of this bond.

NO SUIT, ACTION OR PROCEEDING by the Obligee to recover on this bond shall be sustained unless the same be commenced within two (2) years following the date on which Principal ceased work on said Contract.

Signed and sealed this _________ day of _________________ , _________

(fill in Principal's name) Principal

By:_______________


NAME OF SURETY COMPANY

Surety

By:______________________

Attorney-in-Fact


(Title)

EXHIBIT E

DRUG POLICY COMPLIANCE AGREEMENT

I, _______________________________________________________ , as an owner or officer of

(Name) (Print/Type) (Title)

(Contractor)

(Name of Company)

have authority to bind Contractor with respect to its bid, offer or performance of any and all contracts it may enter into with City of Houston; and that by making this Contract, I affirm that Contractor is aware of and by the time the contract is awarded will be bound by and agree to designate appropriate safety impact positions for company employee positions, and to comply with the following requirements before City issues a Notice to Proceed:

1. Develop and implement a written Drug Free Workplace Policy and related drug testing procedures for Contractor that meet the criteria and requirements established by the Mayor's Amended Policy on Drug Detection and Deterrence (Mayor's Drug Policy) and the Mayor's Drug Detection and Deterrence Procedures for Contractors (Executive Order No. 1-31).

2. Obtain a facility to collect urine samples consistent with Health and Human Services (HHS) guidelines and a HHS certified drug testing laboratory to perform the drug tests.

3. Monitor and keep records of drug tests given and the results; and upon request from City of Houston, provide confirmation of such testing and results.

4. Submit semi-annual Drug Policy Compliance Declarations.

I affirm on behalf of Contractor that full compliance with the Mayor's Drug Policy and Executive Order No. 1-31 is a material condition of the contract with City of Houston.

I further acknowledge that falsification, failure to comply with or failure to timely submit declarations and/or documentation in compliance with the Mayor's Drug Policy and/or Executive Order No. 1-31 will be considered a breach of the contract with City and may result in non-award or termination of the contract by City of Houston.

Date (Contractor Name)

(Signature)


EXHIBIT F CONTRACTOR'S CERTIFICATION

OF NO SAFETY IMPACT POSITIONS IN PERFORMANCE OF A CITY CONTRACT

I, ___________________________ , __________________________________________ , (Contractor)

(Name) (Title)

as an owner or officer of _______________________________________________ have authority to bind

(Name of Company)

Contractor with respect to its bid, and hereby certify that Contractor has no employee safety impact positions, as defined in Section 5.18 of Executive Order No. 1-31, that will be involved

in performing ________________________________________________________ . Contractor

(Project)

agrees and covenants that it shall immediately notify City of Houston Director of Human Resources if any safety impact positions are established to provide services in performing this City Contract.

(Date) (Typed or Printed Name)

(Signature)

(Title)


EXHIBIT G

DRUG POLICY COMPLIANCE DECLARATION

I, ___________________________________________________________ as an owner or officer of

(Name) (Print/Type) (Title)

have personal knowledge and full

(Contractor - Name of Company)

authority to make the following declarations:

This reporting period covers the preceding 6 months from _______ to _________ , 20 _______ . ______ (Initials) A written Drug Free Workplace Policy has been implemented and employees notified. The policy meets the criteria established by the Mayor's Amended Policy on Drug Detection and Deterrence (Mayor's Policy). ______ (Initials) Written drug testing procedures have been implemented in conformity with the Mayor's Drug Detection and Deterrence Procedures for Contractors, Executive Order No. 1-31. Employees have been notified of such procedures. ______ (Initials) Collection/testing has been conducted in compliance with federal Health and Human Services (HHS) guidelines. ______ (Initials) Appropriate safety impact positions have been designated for employee positions performing on City of Houston contract. The number of employees in safety impact positions during this reporting period is ______ (Initials) From _________________ (Start date) to _____________ (End date) the following test has occurred

RANDOM REASONABLE

SUSPICION POST

ACCIDENT TOTAL

Number Employees Tested

Number Employees

Positive

_______(Initials) Any employee who tested positive was immediately removed from the City worksite consistent with the Mayor's Policy and Executive Order No. 1-31. ______(Initials) I affirm that falsification or failure to submit this declaration timely in accordance with established guidelines will be considered a breach of contract. I declare under penalty of perjury that the affirmations made herein and all information contained in this declaration are within my personal knowledge and are true and correct. _____________________ ________________________________ (Date) (Typed or Printed Name)

______________________ (Signature)

_____________________ (Title)


PRICING SCHEDULE 1: REAL TIME LMP

This Pricing Schedule: Real Time LMP between _______________________ ("Supplier") and the City of Houston ("Customer") is subject to all provisions, is incorporated into, and is made a part of for all intents and purposes, the Electricity Supply Agreement entered into between Supplier and Customer ("Agreement").

1. PRICING SCHEDULE START DATE: {DATE}

2. PRICING SCHEDULE END DATE: {DATE}

3. CONTRACT PRICE: For the ESIDs listed in Exhibit A to the Agreement and assigned to this Pricing Schedule 1, the Contract Price per kWh of Actual Usage shall be _______________________________. If the Real Time Settlement Point Price for any settlement interval is a negative number, then such amount shall be treated as a credit to Customer for that settlement interval. Customer acknowledges that the Contract Price will vary and may be volatile at times. The Contract Price may, from time-to-time, also include additional charges for RECs purchased in accordance with Section 8 below.

4. PASS THROUGH CHARGES: Delivery Charges, Discretionary Charges and Taxes are not part of the Contract Price and shall be separately passed through to Customer without markup.

5. CONVERSION OPTION: At any time during the Delivery Term, the Finance Director may request that any or all of the ESIDs assigned to this Pricing Schedule 1 in Exhibit A to the Agreement be converted to another pricing option, including an indexed heat rate or a fixed price option. Upon receipt of such request, Supplier shall promptly provide Finance Director with an indicative price. If the Finance Director and Supplier reach agreement on a price conversion, then Supplier shall provide a new Pricing Schedule reflecting the price conversion and those affected ESIDs shall be assigned to the new Pricing Schedule.

6. PROMPT PAYMENT DISCOUNT: Payment on invoices is due on the Due Date. However, if Supplier receives payment within twenty (20) calendar days of invoice receipt, a prompt payment discount will be credited to the Fixed Adder. The discount is as follows: _________ per MWh.

7. DEFINITIONS:

7.1 "Fixed Adder" means ____________ per MWh of Actual Usage and includes all of theElectricity Related Charges except those that are expressly included in the definition of Pass-Through Charges.

7.2 "Load Zone" has the meaning given to it in the ERCOT Nodal Protocols, as approved by the PUCT in October 1, 2006 as amended.

7.3 "Real Time Settlement Point Price" or "RTSPP" has the meaning given to it in the ERCOT Nodal Protocols, as approved by the PUCT in October 1, 2006 as amended.

8. RENEWABLE ENERGY CREDIT TRANSACTIONS: During the Delivery Term, Finance Director and Supplier may agree that Supplier will sell and Customer will buy Renewable Energy Credits ("RECs") that meet the specifications established by the Finance Director, or Supplier will retire Customer RECs equal to any mutually agreed amount, as determined by the Finance Director. Supplier acknowledges that Customer is not obligated to purchase all or any portion of its RECs from Supplier, and is free to purchase RECs from any entity of its choice without notice to or permission from Supplier.


9. NOTICES

To Supplier:

NOTICES & BILLING & ACCOUNTING

CORRESPONDENCE: MATTERS:

10. PAYMENTS:


PRICING SCHEDULE 2: HEAT RATE

This Pricing Schedule: Heat Rate between ____________________ ("Supplier") and the City of Houston ("Customer") is subject to all provisions, is incorporated into, is made a part of for all intents and purposes, the Electricity Service Agreement entered into between Supplier and Customer ("Agreement").

1. PRICING SCHEDULE START DATE: {DATE}

2. PRICING SCHEDULE END DATE: {DATE}

3. CONTRACT PRICE: For the ESIDs listed in Exhibit A to the Agreement and assigned to this Pricing Schedule 2, the Contract Price per kWh of Actual Usage shall be the [Heat Rate multiplied by the Gas Price]; plus (b) the Fixed Adder; plus (c) Nodal Charges. Customer acknowledges that the NYMEX Gas Price will vary and may be volatile at times. The Contract Price may, from time-to-time, also include additional charges for RECs purchased in accordance with Section 6 below.

4- CHARGES TO BE PASSED THROUGH: Delivery Charges, Discretionary Charges and Taxes are not part of the Contract Price and shall be separately passed through to Customer without markup.

5. GAS PRICE CONVERSION OPTIONS: Customer shall have the option to enter into a Gas Price Conversion Transaction as set forth herein for converting the NYMEX Gas Price using the Gas Price Conversion Procedures set forth herein. A Gas Price Conversion Transaction may be executed for all or any portion of Customer's Actual Usage and may be executed for one or more Pricing Periods during the Delivery Term.

5.1 Fixed Gas Price: Finance Director shall notify Supplier by telephone of Finance Director's desire to establish a fixed price per MMBtu ("Fixed Gas Price") for all or a portion of the NYMEX Gas Price for one or more Pricing Periods by no later than noon, Eastern Standard Time, on the second Business Day prior to the close of the NYMEX for the first calendar month in the applicable Pricing Period(s) ("Trigger Deadline"). Supplier shall promptly respond to Finance Director's notice with a proposed Fixed Gas Price. Supplier's proposed Fixed Gas Price shall (a) be based upon the NYMEX Gas Price then available and shall not be greater than $0.01 per MMBtu of the offer side of the then-available market price for NYMEX natural gas for the volume(s) and time period(s) requested by Customer; and (b) not include any markup, collateral costs or margin. In the event that Finance Director does not notify Supplier of its desire to establish a Fixed Gas Price by the Trigger Deadline or no Fixed Gas Price is agreed upon by Finance Director and Supplier, then no Fixed Gas Price shall apply and the NYMEX Gas Price shall be used.

5.2 Finance Director may also provide an offer to Supplier, specifying the proposed Fixed Gas Price, the portion of the NYMEX Gas Price to which the offer applies ("Offer Amount"), and the Pricing Period(s) during which the Fixed Gas Price would be in effect ("Offer"). Finance Director shall also specify the period of time during which such offer is subject to acceptance by Supplier, which shall not exceed ninety (90) days or extend past the Trigger Deadline for the applicable Pricing Period ("Offer Period"). Supplier may accept the Offer at any time during the Offer Period. Acceptance of the Offer shall occur upon Supplier's written or oral notice of acceptance during the Offer Period, provided that Finance Director has not revoked the Offer prior to Supplier's acceptance. Finance Director may revoke an Offer before Supplier's acceptance by notifying Supplier in writing only after the NYMEX closes on a Business Day.


Supplier will provide Customer a Confirmation confirming Finance Director's revocation of the Offer. An Offer remains effective until (i) the Offer is accepted; (ii) the Offer is revoked; or (iii) the Offer Period expires. If an Offer expires or is revoked, then no Fixed Gas Price shall apply and the NYMEX Gas Price shall be used. Supplier shall use commercially reasonable efforts to accept Finance Director's Offer if the Offer is equal to or greater than the value of the applicable natural gas products offered in the market during the period of the Offer. Supplier may accept the Offer for all or any portion of the Offer Amount at any time during the Offer Period: provided that if Supplier accepts the Offer for only a portion of the Offer Amount, Supplier shall continue to use commercially reasonable efforts to accept the remainder of the Offer Amount in accordance with the previous sentence.

5.3 Gas Price Caps, Floors and Collars: Finance Director may notify Supplier by telephone of Finance Director's offer to establish for all or a portion of the Gas Price for one or more Pricing Periods (i) a maximum price per MMBtu that the Gas Price may not exceed ("Capped Gas Price"); (ii) a minimum price per MMBtu that the Gas Price may not fall below ("Gas Price Floor") or (iii) a maximum price per MMBtu that the Gas Price may not exceed and a minimum price per MMBtu that the Gas Price may not fall below ("Collared Gas Price"); provided that Finance Director and Supplier have not agreed upon a Fixed Gas Price for the time period and portion of the Gas Price to which Finance Director's offer applies. An adjustment to the Fixed Adder may be proposed by Finance Director for the time period in which the Capped Gas Price, Gas Price Floor or Collared Gas Price would be in effect. Finance Director's offer must be received by Supplier no later than noon, Eastern Standard Time, on the second Business Day prior to the close of the NYMEX for the month prior to the first applicable calendar month in the Pricing Period(s) affected and the offer shall automatically expire by 2:00 pm CPT on the day of the offer. Acceptance occurs for all purposes upon the earlier of (i) the execution of the purchase of underlying NYMEX natural gas products by or on behalf of Supplier, if any, before the 2:00 PM CPT expiry period in response to Finance Director's offer or (ii) Supplier's written or oral notice of acceptance to Finance Director. Supplier shall promptly notify Finance Director if acceptance occurred under option (i). If Finance Director and Supplier do not agree upon a Capped Gas Price, Gas Price Floor, or Collared Gas Price and any corresponding Fixed Adder Adjustment for a specific Pricing Period, then the NYMEX Gas Price in effect for the first calendar month of that Pricing Period shall apply for that Pricing Period.

6. RENEWABLE ENERGY CREDIT TRANSACTIONS: During the Delivery Term, Finance Director and Supplier may agree that Supplier will sell and Customer will buy Renewable Energy Credits ("RECs") that meet the specifications established by Finance Director, and/or Supplier will retire Customer RECs equal to any mutually agreed amount. Supplier acknowledges that Customer is not obligated to purchase RECs from Supplier, and is free to purchase RECs from any entity of its choice without notice to or permission from Supplier.

7. TRANSACTION PROCEDURES:

7.1 A Gas Price Conversion Transaction may be formed and effectuated upon oral agreement between Finance Director and Supplier and such conversation shall be recorded by Supplier. The Parties shall be legally bound by a Gas Price Conversion Transaction from the time Finance Director and Supplier agree to its terms. A Gas Price Conversion Transaction formed and effectuated by such procedures shall be considered a "writing" or "in writing" and to have been "signed" and this Agreement and any Confirmation, as defined below, shall be considered to constitute an "original" document evidencing a Gas Price Conversion Transaction. The Parties agree not to contest or assert a defense to the validity or enforceability of any Gas Price Conversion Transaction entered into in accordance with these procedures. Each Party represents


to the other Party that each of its representatives has authority to enter into an oral Gas Price Conversion Transaction in accordance herewith.

7.2 In addition, but not in lieu of the foregoing, Supplier shall provide to Customer a confirmation in form adequate at law (a "Confirmation") confirming the agreed upon Gas Price Conversion Transaction. Such Confirmation for a Gas Price Conversion Transaction shall include at a minimum (i) the portion of the Gas Price; (ii) the time period; and (iii) the gas prices, to which the Gas Price Conversion Transaction applies. Unless Customer objects in writing to any errors in the Confirmation within two Business Days of the Confirmation date (the "Objection Deadline"), then the Confirmation shall be conclusive evidence of the Gas Price Conversion Transaction, and the final expression of all of its terms, and the terms of this Agreement shall apply to such Gas Price Conversion Transaction. No Confirmation shall be effective to otherwise amend or modify the terms and provisions of the Agreement. Supplier shall retain the recording of the conversation effectuating the Gas Price Conversion Transaction until expiration of the Objection Deadline; provided that if Customer objects to the Confirmation before expiration of the Objection Deadline, then Supplier shall provide a copy of the recording to Finance Director upon Finance Director's request, and retain the recording until the resolution of the dispute, and the recorded oral conversation shall be conclusive evidence of the Gas Price Conversion Transaction.

8. PROMPT PAYMENT DISCOUNT: Payment on invoices is due on the Due Date. However, if Supplier receives payment within twenty (20) calendar days of invoice receipt, a prompt payment discount will be credited to the Fixed Adder. The discount is as follows: $0.00 per MWh.

9. DEFINITIONS.

9.1 "Fixed Adder" means $0.00 per MWh of Actual Usage and includes all of the Electricity Related Charges except those that are expressly set forth in the definition of Pass- Through Charges.

9.2 "Gas Price" means the NYMEX Gas Price; unless Customer and Supplier have agreed upon a Fixed Gas Price, Capped Gas Price, Gas Price Floor or Collared Gas Price in accordance with the provisions set forth herein. If Finance Director and Supplier have agreed upon one or more Fixed Gas Prices for a total of 100% of the Gas Price for a Pricing Period in accordance with the provisions herein set forth, then the Gas Price shall be the Fixed Gas Price, or the weighted average of the Fixed Gas Prices for such Pricing Period if more than one. If Finance Director and Supplier have agreed upon a Fixed Gas Price for a percentage less than 100% of the Gas Price for a Pricing Period in accordance with the provisions herein set forth, then the Gas Price shall be the weighted average of the NYMEX Gas Price and the Fixed Gas Price for such Pricing Period. If Finance Director and Supplier have agreed upon a Capped Gas Price for a specific time period and percentage of the Gas Price, then the Gas Price for the specified percentage shall be the NYMEX Gas Price subject to the Capped Gas Price. If Finance Director and Supplier have agreed upon a Gas Price floor for a specific time period and percentage of the Gas Price, then the Gas Price for the specified percentage shall be the NYMEX Gas Price subject to the Gas Price Floor. If Finance Director and Supplier have agreed upon a Collared Gas Price for a specific time period and percentage of the Gas Price, then the Gas Price for the specified percentage shall be the NYMEX Gas Price subject to the maximum and minimum price as established in the Collared Gas Price.

9.3 "Gas Price Conversion Transaction" means a transaction executed by Finance Director


and Supplier to convert all or a portion of the NYMEX Gas Price to a Fixed Gas Price, Capped Gas Price, Gas Price Floor, and/or a Collared Gas Price in accordance with the procedures set forth in this Pricing Schedule.

9.4 "Heat Rate" means ______ per MMBtu per MWh.

9.5 "Load Zone" has the meaning given to it in the ERCOT Nodal Protocols, as approved by the PUCT in October 1, 2006 as amended.

9.6 "NYMEX Gas Price" means the final monthly settlement price of the New York Mercantile Exchange ("NYMEX") natural gas futures contract for deliveries at Henry Hub for the first calendar month identified as comprising all or a part of the applicable Pricing Period. If the NYMEX PG becomes unavailable during a calendar month in which it is required for the calculation of the Contract Price, Supplier and Customer agree to promptly negotiate a mutual satisfactory alternate index ("Alternate Gas Index"). If Finance Director and Supplier cannot agree upon an Alternate Gas Index by the end of the calendar month for which the NYMEX Gas Price could not be determined, then Supplier and Finance Director shall each prepare a list of up to five alternative published indices representative of gas prices for deliveries at Henry Hub. Each Party shall submit its list to an independent third party selected by the Parties within 10 days after the end of the calendar month for which the NYMEX Gas Price could not be determined. The first listed index appearing on both Supplier's and Customer's list shall constitute the Alternate Gas Index. If either Party fails to provide timely a list, then such Party's list shall not be considered. From and after the date the NYMEX Gas Price could not be determined, the NYMEX Gas Price will be determined by reference to the NYMEX natural gas futures contract for deliveries at Henry Hub during the immediately preceding 12 months, which price shall be effective until the Alternate Gas Index is determined.

9.7 "Nodal Charges" means Hub to Load Zone Basis Differential, calculated as the difference, if any, between the RTSPP (s) determined by ERCOT for the Houston Load Zone and the RTSPP (s) determined by ERCOT for the Houston 345 kV Hub. If the RTSPP for the Houston Load Zone is less than the RTSPP for the Houston 345 kV Hub, then the difference shall be credited to Customer. If the RTSPP for the Houston Load Zone is greater than the RTSPP for the Houston 345 kV Hub, then the difference shall be charged to Customer.

9.8 "Pricing Period" means, for each ESID (a) the period beginning on the date of commencement of the Delivery Term and ending on the next succeeding meter read date, and (b) thereafter, each period of the Delivery Term beginning on a meter read date and ending on the next succeeding meter read date.

9.9 "Real Time Settlement Point Price" or "RTSPP" has the meaning given to it in the ERCOT Nodal Protocols, as approved by the PUCT in October 1, 2006 as amended.

10- NOTICES To Supplier:

11. GAS PRICE CONVERSION TRANSACTIONS

Supplier Representative:

13. BILLING & ACCOUNTING MATTERS:

14. PAYMENTS:



PRICING SCHEDULE 3: FIXED PRICE

This Pricing Schedule 3: Third Party Supply Solar Block - Fixed Price between _________________ (“Supplier”) and the City of Houston (“Customer”) is subject to all provisions, is incorporated into, is made a part of for all intents and purposes, the Electricity Supply Agreement, as amended, entered into between Supplier and Customer (“Agreement”).

1. PRICING SCHEDULE 3 START DATE: the Commercial Operation Date.

2. PRICING SCHEDULE 3 END DATE: If Customer exercises the first extension under Section 3.2.1.1 of the Agreement, then the Pricing Schedule 3 End Date shall also be extended to __________. If Customer exercises the second extension under Section 3.2.1.1 of the Agreement, then the Pricing Schedule 3 End Date shall also be extended to ____________________.

3. CONTRACT PRICE: For the ESIDs listed in Exhibit A-2 to the Agreement and assigned to this Pricing Schedule 3, the Contract Price per MWh of Actual Usage shall be $_________; plus (b) Nodal Charges. The Contract Price may, from time-to-time, also include additional charges for RECs purchased in accordance with Section 5 below.

4. CHARGES TO BE PASSED THROUGH: Delivery Charges, Discretionary Charges and Taxes are not part of the Contract Price and shall be separately passed through to Customer without markup.

5. RENEWABLE ENERGY CREDIT TRANSACTIONS: During the Delivery Term, Finance Director and Supplier may agree that Supplier will sell and Customer will buy Renewable Energy Credits (“RECs”) that meet the specifications established by Finance Director, and/or Supplier will retire Customer RECs equal to any mutually agreed amount. Supplier acknowledges that Customer is not obligated to purchase RECs from Supplier, and is free to purchase RECs from any entity of its choice without notice to or permission from Supplier.

6. PROMPT PAYMENT DISCOUNT: Payment on invoices is due on the Due Date. However, if Supplier receives payment within twenty (20) calendar days of invoice receipt, a prompt payment discount will be credited to the Fixed Adder. The discount is as follows: $_______ per MWh.

7. DEFINITIONS:

7.1 “Load Zone” has the meaning given to it in the ERCOT Nodal Protocols, as approved by the PUCT in October 1, 2006 as amended.

7.2 “Nodal Charges” means Hub to Load Zone Basis Differential, calculated as the difference, if any, between the RTSPP (s) determined by ERCOT for the Houston Load Zone and the RTSPP (s) determined by ERCOT for the Houston 345 kV Hub. If the RTSPP for the Houston Load Zone is less than the RTSPP for the Houston 345 kV Hub, then the difference shall be credited to Customer. If the RTSPP for the Houston Load Zone is greater than the RTSPP for the Houston 345 kV Hub, then the difference shall be charged to Customer.

7.3 “Real Time Settlement Point Price” or “RTSPP” has the meaning given to it in the ERCOT Nodal Protocols, as approved by the PUCT in October 1, 2006 as amended.


9. NOTICES

To Supplier: NOTICES & CORRESPONDENCE: {ADDRESS}

BILLING & ACCOUNTING MATTERS: {ADDRESS}

10. PAYMENTS: Unless Supplier provides alternative written instructions to the Finance Director, Payment shall be mail to the following address: {ADDRESS}


PRICING SCHEDULE 4: THIRD PARTY SUPPLY SOLAR BLOCK - FIXED PRICE

This Pricing Schedule 4: Third Party Supply Solar Block - Fixed Price between _________________ (“Supplier”) and the City of Houston (“Customer”) is subject to all provisions, is incorporated into, is made a part of for all intents and purposes, the Electricity Supply Agreement, as amended, entered into between Supplier and Customer (“Agreement”).

This Pricing Schedule 4 is intended to apply to (a) solar power generated by SolaireHolman 1, LLC, a Delaware limited liability company, a subsidiary of Engie, S.A., and a successor in interest to Hecate Energy Brewster LLC (“SolaireHolman”), and sold and delivered to Supplier (“Solar Energy”) under a Purchase Agreement for Installed Capacity, Energy and Environmental Attributes by and between Customer, Supplier and Hecate, dated Nov. 13, 2015, as amended from time-to-time (the “Power Purchase Agreement”), which Supplier has agreed to re-sell to Customer under the Agreement, and (b) electric power in excess of the Actual Solar Delivery consumed by Customer at the Solar Locations. Deliveries of Solar Energy by SolaireHolman to Supplier commenced as of the April 1, 2017 under the Power Purchase Agreement, as that term is defined in the Power Purchase Agreement (the “Commercial Operation Date”).

Until such time as the Commercial Operation Date occurs, pricing for all ESIDs assigned to this Pricing Schedule 4 will be governed by Pricing Schedule 2.

1. PRICING SCHEDULE 3 START DATE: the Commercial Operation Date.

2. PRICING SCHEDULE 3 END DATE: If Customer exercises the first extension under Section 3.2.1.1 of the Agreement, then the Pricing Schedule 4 End Date shall also be extended to __________. If Customer exercises the second extension under Section 3.2.1.1 of the Agreement, then the Pricing Schedule 4 End Date shall also be extended to ____________________.

3. CONTRACT PRICE: On and after the Pricing Schedule 4 Start Date, for the ESIDs listed in Exhibit A-2 to the Agreement and assigned to this Pricing Schedule 4 (“Solar Locations”), the Contract Price per kWh is the (a) Nodal Charges, plus (b) the Solar Charge and the Non-Solar Charge, as applicable, plus (c) the Solar Energy Deficiency Adjustment or Excess Solar Energy Adjustment, if any, and plus (d) the Pass-Through Charges. The Contract Price may, from time-to-time, also include additional charges for RECs purchased in accordance with Section 6 below. Alternatively, if the Parties avail themselves to repricing under Section 3.6.5(b) of the Agreement, then the temporary Contract Price per kWh is the (a) Nodal Charges, plus (b) the Solar Replacement Price and the Non-Solar Charge, as applicable, plus (c) the Pass-Through Charges during the Designated Extended Force Majeure Outage Period; or if the Parties avail themselves to repricing under Section 3.6.5(c) of the amended Agreement, then the new and permanent Contract Price per kWh is the (a) Nodal Charges, plus (b) the Solar Replacement Price, plus (c) the Pass-Through Charges

(a) “Nodal Charges” means

(i) in the case of the Actual Solar Delivery at the Solar Fixed Price, Hub to Load Zone Basis Differential, calculated as the difference, if any, between the RTSPP(s) determined by ERCOT for the Houston Load Zone and the Delivery Point under the Power Purchase Agreement, as defined in Section 1.21 of the Power Purchase Agreement (“Power Purchase Agreement Delivery Point”). If the RTSPP for the Houston Load Zone is less than the RTSPP for the Power Purchase Agreement Delivery Point, then the difference shall be credited to Customer. If the RTSPP for the Houston Load Zone is greater than the RTSPP for the Power Purchase Agreement Delivery Point, then the difference shall be charged to Customer; and


(ii) in the case of the Actual Non-Solar Usage at the Non-Solar Fixed Price, Charge Hub to Load Zone Basis Differential, calculated as the difference, if any, between the RTSPP (s) determined by ERCOT for the Houston Load Zone and the RTSPP (s) determined by ERCOT for the Houston 345 kV Hub. If the RTSPP for the Houston Load Zone is less than the RTSPP for the Houston 345 kV Hub, then the difference shall be credited to Customer. If the RTSPP for the Houston Load Zone is greater than the RTSPP for the Houston 345 kV Hub, then the difference shall be charged to Customer.

“Real Time Settlement Point Price” or “RTSPP” has the meaning given to it in the ERCOT Nodal Protocols, as initially approved by the PUCT and subsequently amended by the ERCOT Board of Directors. (b) Solar Charge. The Solar Charge shall be the Solar Fixed Price multiplied by Actual Solar Delivery.

“Actual Solar Delivery” means the actual hourly delivery of Solar Energy for each Solar Location, allocated proportionately to each Solar Location based on _____________________________. “Solar Fixed Price” means $____________ per kWh.

(c) Non-Solar Charge. The Non-Solar Charge shall be the Non-Solar Fixed Price multiplied by the Actual Non-Solar Usage

“Actual Non-Solar Usage” means the total metered electric power delivered to all of the Solar Locations minus Actual Solar Delivery.

“Non-Solar Fixed Price” means a mutually agreeable amount per kWh that shall not exceed $_____________ per kWh. Supplier and Director will reach agreement on the Non-Solar Fixed Price in the same manner prescribed in Section 2.2.1 of the Agreement before the Pricing Schedule 4 Start Date. A letter signed by Supplier and the Director setting forth that price will constitute the written addendum to the Agreement described in Section 2.2.1 of the Agreement.

4. SOLAR ENERGY SETTLEMENT ADJUSTMENT. (a) Solar Energy Deficiency Adjustment. If the amount of Actual Solar Delivery in a calendar month results in a Solar Energy Deficiency, Supplier will calculate a “Solar Energy Deficiency Adjustment” for that calendar month, as follows: the Solar Energy Deficiency Adjustment equals the Solar Energy Deficiency multiplied by [the Non-Solar Fixed Price minus the Solar Energy Deficiency Settlement Price]. If the result is a negative number, then the Solar Energy Settlement Adjustment will be a charge to Customer; if the result is a positive number, then the Solar Energy Settlement Adjustment will be a credit to Customer.

“Solar Energy Benchmark Quantity” for each calendar month is set forth on Exhibit A to this Pricing Schedule 4.

“Solar Energy Deficiency” means the amount of Actual Solar Delivery in a calendar month that is less than 90% of the Solar Energy Benchmark Quantity for that calendar month. “Solar Energy Deficiency Settlement Price” means the average of the On-Peak LMPZs for all days in the applicable calendar month.


“Locational Marginal Price Zonal” or “LMPZ” means the ERCOT Real-Time Settlement Point Price of Energy for a fifteen-minute ERCOT settlement interval for the Load Zone in which the Solar Locations are located. ERCOT’s calculation of this price includes the Real-Time Reserve price for On-Line Reserves determined by ERCOT in accordance with its methodology as of ______________ for implementing the Operating Reserve Demand Curve added on June 1, 2014. “Operating Reserve Demand Curve” means the value of resrves at different reserve leveal based on the probability of reserves falling below the minimum contingency level and the Value of Load Load (“VOLL”). "On-Peak LMPZ" means the LMPZ for hours ending 0700 through 2200 (7 x 16).

(b) Excess Solar Energy Adjustment. If the amount of Actual Solar Delivery in a calendar month results in Excess Solar Energy, Supplier will calculate an “Excess Solar Energy Adjustment” for that calendar month, as follows: the Excess Solar Energy Adjustment equals the Excess Solar Energy multiplied by [the Non-Solar Fixed Price minus the Excess Solar Energy Settlement Price]. If the result is a positive number, then the Excess Solar Energy Settlement Adjustment will be a charge to Customer; if the result is a negative number, then the Excess Solar Energy Adjustment will be a credit to Customer.

“Excess Solar Energy” means the amount of Actual Solar Delivery in a calendar month that is in excess of 110% of the Solar Energy Benchmark Quantity for that calendar month. “Excess Solar Energy Settlement Price” means the average of the On-Peak LMPZs for all Market Days in the applicable calendar month.

5. PASS THROUGH CHARGES: Delivery Charges, Discretionary Charges, and Taxes are not part of the Contract Price and shall be separately passed through to Customer without markup.

6. RENEWABLE ENERGY CREDIT TRANSACTIONS: During the Service Term, Director and Supplier may agree that Supplier will sell and Customer will buy Renewable Energy Credits (“RECs”) that meet the specifications established by Director, or Supplier will retire Customer RECs equal to any mutually agreed amount. Supplier acknowledges that Customer is not obligated to purchase all or any portion of its RECs from Supplier, and is free to purchase RECs from any entity of its choice without notice to or permission from Supplier.

7. INVOICING: In accordance with Sections 6.1, 6.2 and 6.3 of the Power Purchase Agreement, Supplier agrees to send two invoices each month for the ESIDs assigned to this Pricing Schedule 4 (“Solar Locations”). One invoice will contain the Solar Charges for the month based on Actual Solar Delivery. The other invoice will contain the Non-Solar Charge, Nodal Charges and Pass-Through Charges, as well as the Solar Energy Deficiency Adjustment or Excess Solar Energy Adjustment, if any. The Parties understand that these invoices may or may not be issued on the same day of the month.

8. PROMPT PAYMENT DISCOUNT: Payment on invoices is due on the Due Date. However, if Supplier receives payment within twenty (20) calendar days of invoice receipt, a prompt payment discount will be credited the Non-Solar Charge. The discount is as follows: $____________ per MWh.


9. NOTICES

To Supplier: NOTICES & CORRESPONDENCE: {ADDRESS}

BILLING & ACCOUNTING MATTERS: {ADDRESS}

10. PAYMENTS: Unless Supplier provides alternative written instructions to the Finance Director, Payment shall be mail to the following address: {ADDRESS}


Exhibit A

Solar Energy Benchmark Quantities

Calendar Month Solar Energy Benchmark Quantity (in kWh)

First Extension Period:

Second Extension Period:

Date post:	22-Sep-2020
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