Item 4E Attachmentfj TXU
Energy
AGREEMENT FOR THE SUPPLY OF ELECTRICITY
Price Reg. #:
3- 1AHZG1 -25
Product:
Fixed-Shaped/Extendable
BUYER:
City of Southlake
SELLER:
TXU Energy Retail Company LLC
667 N Carroll Ave
1601 Bryan Street EP 10 -050
Southlake, TX 76092
Dallas, Texas 75201
Attn: Retail Contract Management
Phone:
817 481 -5581 Fax: 817 481 -1463
Phone:
(214)875-8900 1 Fax: (214)875-8908
I. TERM
Primary Term: The Primary Term for each Premise will begin and end on the first regularly scheduled meter read for
each Premise occurring on or after the dates listed below in compliance with the Terms and Conditions:
Primary Term Start Date: 11/21/2007 Primary Term End Date: 11/20/2012
II. CHARGES
CHARGE
AMOUNT (Monthly Charges will be the total of the items listed in this Article II.
(i) All kWh Charge
$ per kWh which includes charges for the commodity, Energy(shaped), Ancillary
(the per kWh
Services, Qualified Scheduling Entity Charges, Renewable Energy Credit Charges, Zonal
"Contract Price ")
Congestion (intrazonal and interzonal), Line Losses (TDSP), and Unaccounted for Energy as
defined and specified in the ERCOT Protocols and the applicable TDSP's Tariff in effect as of
the date of this Agreement. See Addendum
( ii) Standing Charge
The sum of the Monthly Standing Charges for all ESI IDs as listed in Exhibit A.
(iii) Other Charges
Varies by ESI ID throughout the Term. All charges, other than those listed above, imposed
upon Seller or Buyer by the TDSP or another Party that are allowed or required by the PUCT,
ERCOT, or any other governmental or regulatory authority, on or with respect to the acquisition,
sale, delivery, and purchase of the electricity.
(iv) Taxes
Varies by ESI ID throughout the Term. All taxes imposed by any governmental or regulatory
authority on the sale, delivery, and purchase of the electricity. Includes Seller's Texas Gross
Receipts Tax and Public Utility Commission Assessment on the acquisition, sales, delivery, or
purchase of the electricity.
(v)Aggregator /Third
$ -0- per kWh. Buyer represents that it has not entered into any contract, arrangement or
Party Fee
understanding with any person that may result in the obligation of Buyer or Seller to pay any
finders fees, broker or agent commissions or other like payments in connection with the
negotiations leading to this Agreement or the consummation of the transactions contemplated
hereby. If any such fees, commissions or payments are alleged to exist or be owing, Buyer shall
be responsible for all such fees, commissions and payments, and shall indemnify and hold
harmless Seller from and against all costs, expenses, damages, liabilities and other charges
incurred by Seller in connection with disputing and resolving any such claims.
III. BILLING
Multi- site -1 invoice Via Hard Copy. Net 45 Days Via Check.
IV. SPECIAL
Not Applicable.
PROVISIONS
V. USAGE
Buyer may be billed in compliance with Sections 4.2 and 4.3 of the Terms and Conditions for usage greater than or
TOLERANCES
lesser than the following tolerances:
Excess Usage Tolerance: 20% per month Under Usage Tolerance: 20% per month
VI. TERMS
The attached Terms and Conditions, Exhibit A, and Exhibit A -1 are incorporated herein by reference.
AND
CONDITIONS
Buyer Legal Name
Seller Legal Name:
City of Southlake
TXU Energy Retail Company LLC,
a
a Texas limited liability compan
By (Name of General Partner or Agent if applicable):
Buyer Signature:
Seller Signature:
Officer's Printed Name:
Officer's Printed Name:
John Detzel
Title:
Title:
Vice President
Date:
Date:
city_of_southlake ASE -fixed tg 100207 tms102307 r (2).doc CONFIDENTIAL TXU LF- Fixed - Shaped /Extendable 070107
TERMS AND CONDITIONS
I. DEFINITIONS
"Agreement" means the Agreement for the Supply of Electricity that is subject
to these Terms and Conditions.
" ERCOT" means the Electric Reliability Council of Texas, Inc.
"ESI ID" means an Electric Service Identifier designation for a particular TDSP
Point of Delivery.
"POLR" means the provider of last resort as designated by the PUCT.
"Power" means all of Buyer's non - residential electricity requirements for each of
the Premise(s).
"PUCT" means the Public Utility Commission of Texas.
"Premise" means individually, and "Premises" means collectively, each parcel
of real property and improvements identified on Exhibit A.
"REP" means a retail electric provider that is certified by the PUCT.
"Seller Point of Delivery" means the point where Seller's suppliers' conductors
are connected to the applicable TDSP's conductors.
"TDSP Point of Delivery" means the point where the applicable TDSP's
conductors are connected to Buyer's conductors at or near Buyer's Premise(s).
"TDSP" means a transmission and /or distribution provider under the jurisdiction
of the PUCT that owns and maintains a transmission or distribution system for
the delivery of energy.
"Term" means the time period during which the Agreement is effective as
specified in Article I of the Agreement.
"Terms and Conditions" means these Terms and Conditions for Supply of
Electricity.
Capitalized terms not defined in these Terms and Conditions shall have the
meaning identified in the Agreement.
II. SUBJECT MATTER AND QUANTITY. During the Term Seller shall sell to
Buyer and Buyer shall purchase from Seller all of Buyer's Power for the listed
Premises. Seller shall cause delivery of the Power to the applicable Seller
Point(s) of Delivery and Buyer shall receive the Power at the ESI ID(s) at the
TDSP Point(s) of Delivery. Seller shall use the Power only at the Premise(s). A
Premise may have one or more TDSP Points of Delivery.
III. SECURITY AND CREDIT REQUIREMENTS. Buyer shall provide the
amount of security, if any, stated in Article IV of the Agreement before the
Primary Term Start Date. Additionally, if Seller later determines in good faith that
there has been a material adverse change in Buyer's credit status or financial
condition and /or in electricity market conditions and /or Buyer fails to pay all
Charges when due, Seller may demand additional security from Buyer in an
amount and form reasonably acceptable to Seller. Buyer shall provide security
to Seller within five business days of such request. Seller shall return security
(and accrued interest, if applicable, at the One Year Treasury Constant Maturity
index published by the Federal Reserve Board as of the first auction date after
January 1 of the applicable year) less any amounts owed by Buyer under the
Agreement, when Seller reasonably determines that such security is no longer
necessary.
IV. CALCULATION AND PAYMENT OF CHARGES.
4.1 Seller will invoice Buyer for the Charges listed in Article II of the Agreement
for Power delivered to the Premise(s) during each monthly billing cycle of the
Term. Buyer shall pay Seller the Charges identified on each invoice by the due
date listed in Article III of the Agreement. All past due amounts shall accrue
interest at a rate equal to three percent (3 %) above the "Prime Rate" published in
The Wall Street Journal under "Money Rates" or an appropriate substitute should
such rate cease to be published, unless a lesser amount is required by law, from
the date the payment was originally due until paid (including accrued interest).
4.2 If Buyer's total consumption of Power for all Premises in a calendar month
exceeds the total amount listed in Exhibit A -1 for such month by more than the
excess usage percentage specified in Article V of the Agreement, then Seller
may charge Buyer 105.0% of the then current Market Price (as defined below)
as the "Contract Price" for such excess quantities. The "Market Price" for
purposes of Sections 4.2 and 4.3 only shall be the weighted average of the
ERCOT market clearing price for energy for the applicable congestion zone(s) in
the applicable month; plus all charges associated with Ancillary Services,
Qualified Scheduling Entity Charges, ISO Fees, Renewable Energy Credit
Charge, Market Clearing Price for Capacity, Zonal (intrazonal and interzonal)
Congestion, Line Losses (transmission and distribution provider), and UFE.
4.3 Unless caused by a Force Majeure event or Seller's breach, if Buyer's total
consumption of Power for all Premises in a calendar month is less than the total
amount listed in Exhibit A -1 for such month by more than the under -usage
percentage specified in Article V of the Agreement, then, in addition to paying for
the Power actually consumed, Buyer agrees to pay Seller for the cost of
liquidating the Shortfall Quantity. The "Shortfall Quantity" shall mean [((100%
minus the under -usage percentage specified in Article V of the Agreement)
multiplied by (the aggregated monthly contract usage quantities listed on Exhibit
A -1 for the applicable month)) minus (the aggregated quantities consumed by
Buyer during the month)]. The cost of liquidating the Shortfall Quantity shall be
TXU
111 ` 3 Energy
the positive amount, if any, calculated as follows: [(the Shortfall Quantity)
multiplied by (the Contract Price minus 95.0% of the then current Market Price
for the Shortfall Quantity)].
4.4 (a) Seller reserves the right to allocate measured consumption to the
applicable calendar month for any ESI IDs not installed with an interval data
recorder ( "IDR "), or for IDRs in which the information was not received by Seller
in a useful format. (b) If, for whatever reason, the proper meter readings are not
communicated to Seller by the TDSP in time for Seller to prepare the invoice for
the Charges, Seller shall have the right to reasonably estimate the quantity of the
electricity consumed and Buyer shall pay the Charges for the estimated amounts
subject to any adjustments which may be necessary following the reading.
4.5 Except as may be prohibited by law, if upon termination of the Agreement for
any reason Buyer fails to either switch to another supplier or execute a
replacement agreement with Seller, Seller may switch Buyer to the POLR. In any
event, if Seller is ever determined to have been Buyer's electricity supplier for a
period after the expiration of the Agreement, then, until Buyer either executes a
replacement agreement with Seller or switches to another supplier, Seller may
charge Buyer, as the Contract Price, a price per kWh equivalent to Seller's then
current "standard list price offer."
4.6 If (a) Buyer changes any TDSP Point(s) of Delivery to a delivery service
voltage level that is different than the voltage level in place at the time the
Agreement became effective; (b) Buyer changes the existing electric meter at
any TDSP Point(s) of Delivery to a different size /capacity; or (c) Buyer causes
the ERCOT Deemed Load Profile Type for any of its Premises to change; then
Seller may adjust the Contract Price in order to reflect any such change; and
Buyer, in such event, agrees to pay such new Contract Price for all Power
delivered to each such changed ESI ID during each such billing cycle. During
the Term, Buyer shall not consume electricity at the Premises from any source
(including self - generation) except for Power sold by Seller; however, Buyer may
consume electricity from emergency generation during power outages at the
Premises and for purposes of testing such emergency generation.
V. ADDITION AND REMOVAL OF PREMISES.
5.1 Buyer shall be entitled to add one or more Premises (and associated
electricity quantities as reasonably determined by Seller) to the Agreement
by submitting its written request to add the Premise(s) on Seller's then
current standard form for such a request. Buyer shall have the option to (a)
enter into an separate Agreement with Seller covering the additional
Premise(s) at then current market based prices on Seller's standard form of
Agreement for the applicable product, or (b) pay Seller the positive amount,
if any, calculated as follows: [(the kWh amount of the quantities of electricity
attributable to the additional Premise(s) (the "Premise Addition Quantities "))
multiplied by (the then current market based pricing per kWh as reasonably
determined by Seller minus the Contract Price under this Agreement) plus
Seller's reasonable costs incurred to perform the addition) (the "Premise
Addition Payment ") and for the remainder of the Agreement Term shall be
subject thereafter to the Contract Price contained herein for such electricity,
the monthly usage tolerances, and other terms of the Agreement for the
balance of the Agreement Term. Buyer shall pay Seller each Premise
Addition Payment within 20 days of Seller's invoice for same.
5.2 Buyer shall be entitled to remove one or more, but not all, Premises (and
associated electricity quantities as reasonably determined by Seller) from the
Agreement only if Buyer either (a) sells or leases the Premises or (b) closes the
Premises for the remainder of the Term. Buyer shall provide Seller with thirty
days prior written notice if it intends to remove a Premise from the Agreement.
Unless Buyer sells or leases a Premises to a purchaser or lessee who (a) first
executes a new contract with Seller upon the same terms as Buyer's contract
and (b) is creditworthy in Seller's reasonable discretion, Seller shall have the
right to charge Buyer if Buyer removes a Premise from the Agreement. Such
charge shall be the positive amount, if any, calculated as follows: [((the kWh
amount of the quantities of electricity attributable to the Premise removed (the
"Premise Liquidated Quantities ")) multiplied by (the Contract Price minus ninety -
five percent (95.0 %) of the then current market value as reasonably determined
by Seller)] (the "Premise Liquidation Payment "). Buyer shall pay Seller each
Premise Liquidation Payment within 20 days of Seller's invoice for same.
In either event, Exhibits A and A -1 shall be deemed modified to reflect the
deletion of such ESI IDs and associated electricity quantities
VI. REMEDIES UPON TERMINATION.
6.1 A material breach of the Agreement includes: (a) the failure of either Party to
make any payment due to the other Party pursuant to the terms of the
Agreement and such failure is not cured within 10 calendar days following written
notice of such failure; (b) the failure of a Party to comply with any other material
term of the Agreement and such failure is not cured within 30 calendar days
following written notice of such failure; (c) a Party becomes or declares that it is
insolvent or bankrupt, or becomes or declares that it is the subject of any
city_of_southlake ASE -fixed tg 100207 tms102307 r (2).doc CONFIDENTIAL TXU LF- Fixed - Shaped /Extendable 070107
proceedings, or takes any action whatsoever, relating to its bankruptcy,
liquidation or insolvency, or is not generally paying its debts as they become due;
(d) if Buyer enters into another electricity supply agreement for any Premise(s)
with another REP that covers any period during the Agreement Term; (e) if
Buyer sells, leases, closes or otherwise conveys or assigns any of the Premises,
except as allowed under Article IV of the Agreement, Article V or Section 12.2
hereof; or (f) the failure of Buyer to timely pay security to Seller. If either Party
commits a material breach of the Agreement or these Terms and Conditions, the
non - breaching Party may send written notice to the breaching party requesting a
cure as set forth above and shall describe the breach in reasonable detail. If a
breach is not cured during the time period set forth above or if no cure period is
available for the applicable type of material breach, then the non - breaching Party
may, in its sole discretion, and without prejudice to any other rights under the
Agreement, at law or in equity, immediately terminate the Agreement.
6.2 (a) If Seller terminates the Agreement due to a material breach by Buyer, (1)
Seller may, except as may be prohibited by law: (A) disconnect or order the
TDSP to disconnect electric service to the Premise(s) or (B) transfer Buyer to the
POLR, and (2) Buyer shall pay Seller, in addition to all reasonable direct costs
and expenses incurred by Seller as a result of such breach and termination and
all amounts Buyer may owe Seller with respect to time periods prior to the
termination, the positive amount, if any, calculated as follows: [((the remaining
quantities of electricity reflected on Exhibit A -1 after such termination ( "the
Remaining Quantities ")) multiplied by (the Contract Price minus the then current
market value as reasonably determined by Seller)) plus (the value of any term
extension option rights, if any, that Seller may have under the Agreement)] and
such amount shall be due and payable within 30 calendar days following such
termination. (b) If Buyer terminates the Agreement due to a material breach by
Seller, (1) Buyer shall have the right to select any other REP as its electricity
provider, and (2) Seller shall pay Buyer, in addition to all reasonable direct costs
and expenses incurred by Buyer as a result of such breach and termination, the
positive amount, if any, calculated as follows: [the Remaining Quantities
multiplied by (the sum of (Y) the lesser of (i) the then current market value as
reasonably determined by Seller, (ii) the price offered by the POLR, or (iii) a
REP's standard list price offer; minus (Z) the Contract Price)] and such amount
shall be due and payable within thirty (30) calendar days following such
termination.
VII. FORCE MAJEURE. If either Party is unable to perform its obligations, in
whole or in part, due to an event of force majeure as defined herein, then the
obligations of the affected Party (other than the obligations to pay any amounts
arising prior to the force majeure event) shall be suspended to the extent made
necessary by such event. The term "Force Majeure" shall mean any act or event
that is beyond the claiming Party's control (and which could not be reasonably
anticipated and prevented through the use of reasonable measures), including,
without limitation, the failure of the TDSP to receive, transport or deliver, or
otherwise perform, unless due to the failure of the Party claiming Force Majeure
to perform such Party's obligations hereunder, and an event of force majeure of
Seller's suppliers. The Party suffering the event of Force Majeure shall give
written notice of such event of Force Majeure in reasonably full particulars to the
other Party, as soon as reasonably possible. Any such event of Force Majeure
shall, so far as possible, be remedied with all reasonable dispatch. Force
Majeure shall not include (i) the opportunity for Seller to sell the electricity to be
sold under the Agreement to another party at a higher price than that set forth in
the Agreement, (ii) the opportunity for Buyer to purchase electricity for its
Premise(s) from another party at a lower price than that set forth in the
Agreement, or (iii) the inability of either Party to pay its bills under the Agreement
or any other of its bills.
VIII. WARRANTIES AND LIMITATIONS OF LIABILITIES.
8.1 SELLER HEREBY WARRANTS TO BUYER THAT AT THE TIME OF
DELIVERY OF ELECTRICITY HEREUNDER IT WILL HAVE GOOD TITLE
AND /OR THE RIGHT TO SELL SUCH ELECTRICITY, AND THAT SUCH
ELECTRICITY WILL BE FREE AND CLEAR OF ALL LIENS AND ADVERSE
CLAIMS. TITLE WILL PASS TO BUYER AT THE TDSP POINT OF
DELIVERY. EXCEPT AS PROVIDED FOR IN THE FIRST SENTENCE OF
THIS SECTION 8.1, SELLER EXPRESSLY DISCLAIMS AND MAKES NO
WARRANTIES, WHETHER WRITTEN OR VERBAL, WHETHER EXPRESS,
IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY
EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
BUYER WAIVES ALL SUCH WARRANTIES.
8.2 ANY LIABILITY UNDER THE AGREEMENT WILL BE LIMITED TO
DIRECT ACTUAL DAMAGES AS THE SOLE AND EXCLUSIVE REMEDY,
AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE
WAIVED. NEITHER PARTY WILL BE LIABLE FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES,
INCLUDING LOST PROFITS OR OTHER BUSINESS INTERRUPTION
DAMAGES, WHETHER IN TORT OR CONTRACT OR OTHERWISE IN
CONNECTION WITH THE AGREEMENT. THE LIMITATIONS IMPOSED ON
REMEDIES AND DAMAGE MEASUREMENT WILL BE WITHOUT REGARD
TO CAUSE, INCLUDING NEGLIGENCE OF ANY PARTY, WHETHER SOLE,
JOINT, CONCURRENT, ACTIVE OR PASSIVE.
IX. NOTICES. All notices required or permitted under the Agreement shall be in
writing and shall be deemed to be delivered (i) when deposited in the United
States mail (first class as to all notices other than disconnection, termination
and /or material breach notices, and registered or certified as to all disconnection,
termination and /or material breach notices), postage prepaid, (ii) when deposited
with an overnight delivery service, prepaid, to Buyer's address or Seller's
address as shown at the beginning of the Agreement, or to such address as
either Party may from time to time designate as the address, or (iii) in the case of
hand delivery, when delivered to a representative of either Party by a
representative of the other Party.
X. APPLICABLE LAW AND REGULATIONS.
10.1 The applicable Tariff(s) for Retail Delivery Service (the "Tariff') of the
appropriate TDSP(s) serving Buyer's Premise(s) is incorporated herein to the
same extent as if fully set forth herein.
10.2 The Agreement is subject to, and both Parties agree to obey and comply
with, all applicable laws, regulations, rules and orders. However, notwithstanding
the foregoing, both Parties agree that, to the fullest extent allowed by law, (i) it is
their intention to agree to terms and conditions different from those set forth in
the "Customer Protection Rules for Retail Electric Service" as amended, or as
may be amended in the future (the "Customer Rules ") currently beginning with
Section 25.471 of the PUCT's Substantive Rules Applicable to Electric Service
Providers; (ii) in the event that there is any conflict between the terms contained
in the Agreement and the Customer Rules, the Agreement shall control; and (iii)
the Parties expressly acknowledge that certain terms and conditions addressed
in the Customer Rules may not be provided for or referred to in the Agreement,
and, in such event, it is the intent of the Parties that such terms and conditions
are not applicable to the Parties.
10.3 hi the event a judicial decision" order, new laNi or regulation" or a change in laR or
regulation, requires a material change in the method by -,vhich the price is calculated
under the Agreement" or materially and directly erects a Party's ability to Perform its
obligations thereunder, then the Party that is negatively affected shall have the right to
notify the other Party" within thirty (30) calendar days after becoming aware of such
detrimental change. The Parties shall use their best efforts to negotiate a modification of
the Agreement so as to mitigate the impact of the event. If" after twenty (20) calendar
da beyond the date of notice, the Parties have been unable to negotiate a mutually
satisfactory modification to the terns of the Agreement" either Party shall have the right
to terminate the Agreement upon ten (10) calendar days prior written notice to the other
Pity, within forty -five (45) calendar days after the date of the original notice hereunder.
In the event of such a termination, the Parties agree to settle as follows: (a) in the event
the then current market value, as reasonabl determined by Seller, of all remaining
quantities of electricity reflected on Exhibit A -1 aver such termination date ("the
Liquidated Quantities ") is greater than the Contract Price, then Seller shall Pay to Buyer
the amount equal to: the Liquidated Quantities multiplied by (such market value minis
the Contract Price); (b) in the event the Contract Price is more than the then current
market value, as reasonably determined by Seller, of the Liquidated Quantities, then
Buyer shall Pay to Seller the amount equal to: the Liquidated Quantities multiplied by
(the Contract Price minus such market value).
XI. INDEMNIFICATION.
11.1 As between the Parties, Buyer assumes full responsibility for electric
energy on Buyer's side (downstream) of the TDSP Point of Delivery, and agrees
to and shall indemnify, defend, and hold harmless Seller, its parent company and
all of its affiliates (except any which may be the TDSP serving Buyer's
Premise(s)), and all of their respective officers, directors, shareholders,
associates, employees, servants, and agents (hereinafter collectively referred to
as "Seller Group "), from and against all claims, losses, expenses, damages,
demands, judgments, causes of action, and suits of any kind (hereinafter
collectively referred to "Claims "), including Claims for personal injury, death, or
damages to property, occurring on Buyer's side of the TDSP Point of Delivery,
arising out of or related to the electric power and energy and /or Buyer's
performance under the Agreement.
11.2 As between the Parties, Seller assumes full responsibility for electric
energy on Seller's side (upstream) of the Seller Point of Delivery, and agrees to
and shall indemnify, defend, and hold harmless Buyer, its parent company and
all of its affiliates, and all of their respective officers, directors, shareholders,
associates, employees, servants, and agents (hereinafter collectively referred to
as "Buyer Group "), from and against all Claims, including Claims for personal
injury, death, or damages to property occurring on Seller's side of the Seller
Point of Delivery, arising out of or related to the electric power and energy and /or
Seller's performance under the Agreement.
XII. MISCELLANEOUS.
12.1 UCC. THE PARTIES AGREE THAT THE PROVISIONS OF ARTICLE 2
OF THE UNIFORM COMMERCIAL CODE (AS CONTAINED IN THE TEXAS
BUSINESS AND COMMERCE CODE) SHALL APPLY TO THE AGREEMENT
AND ALL TRANSACTIONS THEREUNDER, IRRESPECTIVE OF WHETHER
SUCH TRANSACTIONS ARE DEEMED TO BE A SALE OF GOODS OR THE
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PROVIDING OF A SERVICE; HOWEVER, IN THE EVENT OF A CONFLICT,
THE TERMS AND PROVISIONS OF THE AGREEMENT SHALL CONTROL
OVER THOSE CONTAINED IN THE UCC. NOTWITHSTANDING THE
FOREGOING, THE PARTIES ACKNOWLEDGE AND AGREE THAT ALL
IMPLIED RIGHTS RELATING TO FINANCIAL ASSURANCES ARISING
FROM SECTION 2 -609 OF THE UNIFORM COMMERCIAL CODE (AS
CONTAINED IN THE TEXAS BUSINESS AND COMMERCE CODE) OR
APPLICABLE CASE LAW APPLYING SIMILAR DOCTRINES, ARE
HEREBY WAIVED.
12.2 Assignment. Neither Party may assign the Agreement in whole or in part
without first obtaining the other Party's prior written consent, which consent shall
not be unreasonably withheld; provided that (i) Seller may assign the Agreement
to any REP without obtaining Buyer's prior consent and (ii) Seller will not
withhold its consent if Buyer makes assignment to a party who in Seller's
reasonable opinion is creditworthy. Any assignment of the Agreement by Buyer
must be in conjunction with a conveyance of legal title to all of the Premises to a
single entity. The Agreement shall inure to and be binding upon the Parties
hereto, and their respective successors and assigns; provided that, if a Party
makes a valid assignment of the Agreement, the other Party hereby agrees that
the assigning party is released from its future obligations under the Agreement.
12.3 Entirety of Agreement. It is the intention of the Parties that the
Agreement shall contain all terms, conditions, and protections in any way related
to, or arising out of, the sale and purchase of the electricity, and supersedes, for
the Term, all prior such agreements between the Parties hereto, whether written
or oral, as to the subject Premises. Both Parties have agreed to the wording of
the Agreement and any ambiguities therein shall not be interpreted to the
detriment of either Party merely by the fact that such Party is the author of the
Agreement. The Agreement may not be modified or amended except in writing,
duly executed by the Parties hereto.
12.4 Waiver of Rights. A waiver by either Party of any breach of the
Agreement, or the failure of either Party to enforce any of the terms and
provisions of the Agreement, will not in any way affect, limit or waive that Party's
right to subsequently enforce and compel strict compliance with the same or
other terms or provisions of the Agreement.
12.5 Third Party Beneficiary /Rights. Nothing in the Agreement shall create, or
be construed as creating, any express or implied benefits or rights in any person
or entity other than the Parties.
12.6 Survival. No termination or cancellation of the Agreement will relieve
either Party of any obligations under the Agreement that by their nature survive
such termination or cancellation, including, but not limited to, all warranties and
obligations of indemnity.
12.7 Confidentiality. Seller and Buyer agree to keep all terms and provisions
of the Agreement confidential and not to disclose the terms of the same to any
third parties without the prior written consent of the other Party; provided,
however, each Party shall have the right to make such disclosures, if any, to
governmental agencies and to its own agents, attorneys, auditors, accountants
and shareholders as may be reasonably necessary. If disclosure is sought
through process of a court, or a state or federal regulatory agency, the Party from
whom the disclosure is sought shall resist disclosure through all reasonable
means and shall immediately notify the other Party to allow it the opportunity to
participate in such proceedings.
12.8 Forward Contract. The Agreement constitutes a "forward contract"
as defined in Section 101(25) of the U.S. Bankruptcy Code ( "Bankruptcy
Code "). The Parties agree that (i) Seller is a "forward contract merchant" as
defined in Section 101 (26) of the Bankruptcy Code, (ii) the termination rights
of the Parties will constitute contractual rights to liquidate transactions, (iii)
any payment related hereto will constitute a "settlement payment" as defined
in Section 101 (51A) of the Bankruptcy Code, and (iv) Sections 362, 546,
553, 556, 560, 561 and 562 of the Bankruptcy Code shall apply to the
Parties.
12.9 Representations and Warranties Buyer hereby represents and
warrants to Seller as follows: (a) Buyer is legally authorized to change the
REP for all of the Premises, (b) Buyer's execution and delivery of this
Agreement does not, and the performance by Buyer of its obligations
hereunder will not, violate any contract or agreement to which Buyer is a
party or pursuant to which its assets are bound, and (c) this Agreement is a
valid and binding obligation of Buyer, enforceable against it in accordance
with its terms. Upon execution of the Agreement, Buyer authorizes Seller to
become Buyer's REP for the Term and to act as Buyer's agent for the sole
purpose of effecting any such change, if necessary. If any of Buyer's
representations or warranties hereinabove are untrue when made or fail to
be true at all times during the Term, Buyer shall hold Seller harmless from
and against any third party claims (and related costs and expenses) arising
out of or relating thereto.
12.10 Further Assurances. Buyer and Seller agree to provide such
information, execute and deliver any instruments and documents and to take
such other actions as may be necessary or reasonably requested by the other
Party, which are not inconsistent with the provisions of the Agreement and which
do not involve the assumptions of obligations other than those provided for in the
Agreement, in order to give full effect to the Agreement and to carry out the intent
of the Agreement.
12.11 Headings. The headings included throughout the Agreement are
inserted solely for convenience and reference purposes only shall not be
construed or considered in interpreting any terms or provisions of the
Agreement.
12.12 Severability. If any provision in the Agreement is determined to be
invalid, void, or unenforceable by any governmental authority having jurisdiction,
then such determination will not invalidate, void, or make unenforceable any
other provision or covenant in the Agreement.
12.13 Dispute Resolution. PURSUANT TO THE FEDERAL ARBITRATION
ACT, THE PARTIES HEREBY AGREE THAT ANY CONTROVERSY, CLAIM
OR ALLEGED BREACH, INCLUDING BUT NOT LIMITED TO TORTS AND
STATUTORY CLAIMS, ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE NEGOTIATION OF THIS AGREEMENT SHALL BE
RESOLVED BY BINDING ARBITRATION CONDUCTED UNDER THE
AMERICAN ARBITRATION ASSOCIATION ( "AAA ") COMMERCIAL
ARBITRATION RULES. DEMAND FOR ARBITRATION MUST BE MADE NO
LATER THAN THE TIME THAT SUCH ACTION WOULD BE PERMITTED
UNDER THE APPLICABLE TEXAS STATUTE OF LIMITATION. ANY
DISPUTES REGARDING THE TIMELINESS OF THE DEMAND FOR
ARBITRATION SHALL BE DECIDED BY THE ARBITRATOR(S). JUDGMENT
UPON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE
ENTERED IN ANY COURT HAVING JURISDICTION THEREOF IN ORDER
TO OBTAIN COMPLIANCE THEREWITH. ANY CASE IN WHICH ANY
CLAIM, OR COMBINATION OF CLAIMS, EXCEEDS $500,000 WILL BE
DECIDED BY THE MAJORITY OF A PANEL OF THREE (3) NEUTRAL
ARBITRATORS. IN RENDERING THE AWARD, THE ARBITRATOR(S) WILL
DETERMINE THE RIGHTS AND OBLIGATIONS OF THE PARTIES
ACCORDING TO THE LAWS OF THE STATE OF TEXAS (EXCLUDING ANY
CONFLICT OF LAW PRINCIPLES). ANY DISCOVERY IN ADVANCE OF THE
ARBITRATION HEARINGS SHALL BE CONDUCTED CONSISTENT WITH
THE DISCOVERY PERMITTED UNDER THE FEDERAL RULES OF CIVIL
PROCEDURE; PROVIDED, HOWEVER, EACH PARTY SHALL BE
ENTITLED TO: NO MORE THAN 5 DEPOSITIONS OF NO MORE THAN 5
HOURS PER SIDE PER DEPOSITION, NO MORE THAN 1 WRITTEN SET OF
INTERROGATORIES, AND NO MORE THAN 2 REQUESTS FOR
PRODUCTION, UNLESS THE MAJORITY OF THE ARBITRATORS GRANT
THE PARTIES THE RIGHT TO ADDITIONAL DISCOVERY. THE
ARBITRATION PROCEEDINGS AND HEARINGS WILL BE CONDUCTED IN
DALLAS, TEXAS OR AT SUCH OTHER PLACE AS MAY BE SELECTED BY
MUTUAL AGREEMENT. EACH PARTY SHALL BEAR ITS OWN COSTS
AND EXPENSES (INCLUDING ATTORNEY FEES), AS WELL AS AN EQUAL
SHARE OF THE ARBITRATORS' AND ADMINISTRATIVE FEES OF
ARBITRATION. NO PARTY OR ARBITRATOR(S) MAY DISCLOSE THE
EXISTENCE, CONTENT OR RESULTS OF ANY ARBITRATION
HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL
PARTIES.
12.14 Contract Execution; Original Documents. Each Party agrees that the
Agreement, as well as any amendments thereto, may be executed by facsimile
transfer of an originally signed document, each of which will be as binding on the
Party or Parties as an original document. Each Party understands and agrees
that such facsimiles shall be deemed to constitute the original of such
documents, and that any objections that such facsimiles do not constitute the
"best evidence" of the documents, or that such facsimiles do not comply with the
"Statute of Frauds," as well as any other similar objections to the validity or
admissibility of the document, are hereby expressly waived by the Parties.
city_of_southlake ASE -fixed tg 100207 tms102307 r (2).doc CONFIDENTIAL TXU LF- Fixed - Shaped /Extendable 070107
Addendum
f) TXU
Energy
Price guarantees can be locked by acceptance of the Agreement for Service of Electricity contract package and
provisions of any associated Exhibits or Amendments. TXU Energy offers commodity pricing in various forms.
Currently all pricing options are commodity only with regulated delivery charges from the Transmission and
Distribution Service Provider as "pass through" charges. For these pricing options, the following is a list of charges
included in our commodity price and in the regulated TDSP charges that are passed through.
Price Component
Fixed, Heat Rate or MCPE
Commodity:
Wholesale price of energy
Fixed
Capacity / demand charge
Fixed
Fuel costs
Fixed
TDSP line losses
Fixed
Unaccounted for energy (UFE)
Fixed
Standing charge
Fixed
Net 15 billing terms
Fixed
Summary billing
Fixed
Independent System Operator (ISO) Ancillary Services:
Regulation Service (Regulation Up and Regulation Down)
Fixed
Responsive reserve service
Fixed
Balancing energy service
Fixed
Reliability Must Run (RMR) ERCOT fees
Fixed
Replacement reserve service
Fixed
Non - spinning reserve service
Fixed
Black start service
Fixed
ERCOT ISO fee
Fixed
Renewable energy surcharge
Fixed
Congestion Management:
All congestion charges
Fixed
Uplifts
Fixed
Qualified Scheduling Entity (QSE) Fees:
Schedule coordination service
Fixed
System control service
Fixed
Cost for nominating required quantities of energy
Fixed
Dispatching service
Fixed
Swing (Selected in increments of +/- 5 %, 10 %, 15% or 20%):
Commodity imbalance charges (inside /outside the bandwidth)
As provided in the Agreement for Supply of
Electricit
Regulated Delivery Charges
Transmission charges
Pass Through
Distribution charges
Pass Through
System benefit fund
Pass Through
Nuclear decommissioning charge
Pass Through
Customer charge
Pass Through
Discretionary service fees
Pass Through
Stranded Costs:
Competitive Transition Charge (CTC)
Pass Through
Transition Charge (TC)
Pass Through
Taxes and Miscellaneous Fees:
Sales tax (If applicable)
Pass Through
Gross receipts tax (If applicable)
Pass Through
Public Utility Commission Assessment PUCA) fee
Pass Through
Addendum to the Agreement for Supply of Electricity 05 -11 -07
AMENDMENT TO THE
TERMS AND CONDITIONS FOR SUPPLY OF ELECTRICITY
The following new definitions are hereby added to Section I of the Terms
and Conditions, to be inserted in alphabetical order:
"Code" means Texas Local Government Code, Title 8, Chapter 271,
Subchapter I, Sections 271.151 through 271.160.
"Covered Contract" means a "Contract subject to this subchapter," as such
phrase is defined in Section 271.151(2) of the Code.
II. The last sentence of Section 4.1 of the Terms and Conditions shall be
deleted in its entirety and replaced with the following:
Buyer shall notify Seller in writing on or before the due date if Buyer is
withholding payment of any disputed portion of the Charges and shall
include a list of specific reasons for the dispute; provided, however, that
the undisputed portions of the Charges shall remain due and payable on
the due date. If Buyer gives such notice of dispute, the Parties shall
pursue diligent, good faith efforts to resolve the dispute during the thirty
(30) calendar days following Seller's receipt of the notice. Any amount
found payable (including interest) shall be paid within fifteen calendar
days of the dispute being resolved. If the Parties are unable to resolve
the dispute during the thirty (30) day period and it is subsequently
determined that Buyer should pay Seller all or part of the disputed
amount, Seller may require that Buyer pay interest on such past due
amount from the date such payment was originally due until the same is
paid. All past due amounts shall accrue interest at a rate equal to the
lesser of (i) one percent (1 %) above the "Prime Rate" as published on
the first business day of July of Buyer's preceding fiscal year that does
not fall on a Saturday or Sunday in the Wall Street Journal under
"Money Rates" or an appropriate substitute should such rate cease to be
published, or (ii) the highest rate allowed by law, from the date the payment
was originally due until paid (including accrued interest).
III. The following Section 4.7 shall be added to the Terms and Conditions:
4.7 If Buyer notifies Seller in writing of a justifiable concern regarding the
accuracy of an invoice, Seller will make the records in its possession that
are reasonably necessary to verify the accuracy of the bill available to
Buyer during normal business hours. It is understood and agreed that such
information and records provided under this Section 4.8 constitute Seller's
proprietary and confidential information, the release of which could hinder
or harm Seller's competitive position; therefore, such information and
records are not intended to be public information under the Texas Public
Information Act and shall not be released by Buyer, unless otherwise
determined by the Texas Attorney General or a court of competent
jurisdiction. Nothing in this section will require Buyer to pursue a legal
challenge in any court to seek to overturn a ruling by the Texas Attorney
General's Office or a court requiring disclosure pursuant to the provisions of
the Public Information Statutes, but Buyer shall (i) cooperate and assist
Seller if Seller pursues such a challenge and (ii) make no disclosure until, if,
and when Seller's challenge is finally denied. All information and records
provided hereunder constitute Seller's property and such information,
records, and copies thereof, as well as all notes taken therefrom, shall be
returned to Seller promptly after the resolution of the concerns regarding
the accuracy of the invoice.
IV. The following Section 4.8 shall be added to the Terms and Conditions:
4.8 Buyer represents and warrants that as a political subdivision or
agency of the State of Texas it is exempt from state sales taxes
pursuant to Section 151.309 of the Texas Tax Code. Seller may
request a certificate of exemption from Buyer and Buyer shall provide
such certificate within a reasonable period of time. Thereafter, Seller,
to the extent that it is not required to collect or pay such taxes, will not
flow through the costs of such taxes hereunder to Buyer.
V. Section V shall be deleted in its entirety and replaced with the
following:
5.1 (a) SITE SUBSTITUTION.
In the event Buyer sells, closes, or leases a particular Premise, without
selling, closing, or leasing all of the Premises, Buyer shall have the
right to delete that particular Premise from Exhibit A through the end of
the Term, without terminating the Agreement, provided that Buyer
simultaneously adds a new Premise that (i) is in the same ERCOT
congestion zone, (ii) is in the same ERCOT weather zone, and (iii) has
OTXU
Energy
the same ERCOT deemed load profile as the deleted Premise. The
projected consumption of the new Premise must be within 95- 105% of
the consumption projected for the deleted Premise. No adjustment will
be made to the quantities on Exhibit A -1. If Buyer desires to exercise
the terms of this Section 5.1 with regard to a particular Premise, Buyer
shall notify Seller in writing at least sixty calendar days prior to the
effective date of the deletion of the Premise and the addition of the new
Premise. During the Term, Buyer shall have the right to exercise the
terms of this Section 5.1(a) for no more than a total of ten Premises
listed on Exhibit A. Additions and deletions of Premises not made in
accordance with this subparagraph may be made only in accordance
with Section 5.1(b) hereof.
5.1 (b) ADD /DELETE
Buyer shall have the limited right to add ESI IDs to, or delete some but
not all ESI IDs from, the Agreement. The addition and deletion of ESI
IDs will be done without modifying the aggregated quantities of
electricity set forth on the applicable Exhibit A -1, until the cumulative
total quantities of electricity attributable to all such additional and /or
deleted ESI ID(s) equal five percent (5 %) of the aggregated quantities
originally listed on such Exhibit A -1 for the Primary Term of the
Agreement (the "Add /Delete Tolerance Range "). Buyer may make a
request to add ESI IDs once per business day as a single combined
addition request, and Buyer may make a request to delete ESI IDs
once per business day as a single combined deletion request. In either
such event, in order to initiate either the addition or the deletion of ESI
IDs from the Agreement, Buyer shall submit its request to Seller with as
much prior notice as is practicable, using Seller's then current form for
such request, Seller shall reasonably determine the quantities of
electricity that are applicable to each added or deleted ESI ID, and
Seller will examine all requests in order to determine whether the
request(s) is within the Add /Delete Tolerance Range. There shall not
be any "netting" of additions and deletions; each request to either add
or delete shall be a separate request. The applicable Exhibit A shall be
deemed modified to reflect the addition and deletions of such ESI IDs.
Buyer's sending of a request to Seller to add or delete ESI IDs shall be
considered Buyer's authorization to charge the cost of the request, as
provided below, once Buyer has reached the Add /Delete Tolerance
Range as the result of ESI ID additions and /or deletions.
(c) Once Buyer has reached the Add /Delete Tolerance Range as the
result of ESI ID additions and /or deletions, with regard to (i) any future
ESI ID addition(s) and (ii) if applicable, any portion of the addition
request that caused Seller to exceed the Add /Delete Tolerance Range,
Seller shall have the right to charge Buyer up to the total cost of such
request, i.e., the positive amount, if any, calculated as follows: [(the
kWh amount of the quantities of electricity attributable to the ESI ID
addition request, the "ESI ID Additional Quantities ") multiplied by (the
then current market based pricing per kWh as reasonably determined
by Seller, minus the contract price per kWh according to the
Agreement)] (the "ESI ID Addition Payment "). Upon being invoiced by
Seller, Buyer shall pay such amount to Seller within twenty (20)
calendar days. The applicable Exhibits A and A -1 shall be deemed
modified to reflect the addition of such ESI IDs and associated
electricity quantities. Any ESI IDs and associated ESI ID Additional
Quantities added hereunder to the Agreement shall be subject
thereafter to the contract pricing, monthly contract usage tolerances
and other provisions of the Agreement.
(d) Once Buyer has reached the Add /Delete Tolerance Range as the result
of ESI ID additions and /or deletions, then with regard to (i) any future
ESI ID deletion(s) and (ii) if applicable, any portion of the deletion
request that caused Seller to exceed the Add /Delete Tolerance Range:
(1) In the event a new owner or lessee of a Premise (i) is willing to sign a
new Agreement with Seller for such Premise upon the same terms as
Buyer's Agreement, (ii) is deemed creditworthy in Seller's reasonable
opinion, and (iii) the new owner or lessee and Seller can legally enter
into such Agreement in accordance with the rules and regulations of
the PUCT, then, provided that such a contract is fully executed
between the new owner or lessee and Seller, the Premise (and the
associated ESI IDs and electricity quantities) will be deleted from the
Agreement and Buyer will not owe any compensation to Seller with
respect to such deletion (a "Premise Buyout "); otherwise,
Version: AM -Local Government - 041307 Page 6 of 9 CONFIDENTIAL
(2) Seller shall have the right to charge Buyer up to the total cost of such
request, i.e., the positive amount, if any, calculated as follows: [(the
kWh amount of the quantities of electricity attributable to the ESI ID
deletion request, the "ESI ID Liquidated Quantities ") multiplied by (the
contract price per kWh that Buyer would have paid for the ESI ID
Liquidated Quantities through the end of the Term according to the
Agreement, minus ninety -five percent (95.0 %) of the then current
market value as reasonably determined by Seller)] (the "ESI ID
Liquidation Payment "). Upon being invoiced by Seller, Buyer shall
pay the amount of the ESI ID Liquidation Payment to Seller within
twenty (20) calendar days.
VI. Section 6.2(a) of the Terms and Conditions shall be deleted in its entirety
and replaced with the following:
6.2(a) If Seller terminates the Agreement due to a material breach by
Buyer, (1) Seller shall transfer Buyer to the POLR provided; however,
pursuant to PUCT rules that forbid a REP from switching a delinquent
paying customer to the POLR and notwithstanding anything contained in
the Agreement to the contrary, Seller shall have the right to order the TDSP
to disconnect electric service to Buyer's Premise(s) after the requisite notice
and opportunity to cure if the Agreement is terminated under Section 6.1(a)
due to Buyer's material breach in failing to make payment due to Seller;
however, Seller shall not have the right to order the TDSP to disconnect
electric service (i) for the non - payment of amounts that are subject to a
bona fide dispute, (ii) prior to termination of the Agreement, or (iii) for a
termination of the Agreement due to a material breach other than non-
payment, and (2) Buyer shall pay Seller, in addition to all reasonable direct
costs and expenses incurred by Seller as a result of such breach and
termination and all amounts Buyer may owe Seller with respect to time
periods prior to the termination, the positive amount, if any, calculated as
follows: [((the remaining quantities of electricity reflected on Exhibit A -1 after
such termination ( "the Remaining Quantities ")) multiplied by (the Contract
Price minus the then current market value as reasonably determined by
Seller)) plus (the value of any term extension option rights that Seller may
have under the Agreement)] and such amount shall be due and payable
on or before thirty (30) calendar days following such termination.
VII. The following Sections 6.3 and 6.4 shall be added to the Terms and
Conditions:
6.3 The Parties agree that if (i) Buyer is unable to allot or appropriate
sufficient funds for Buyer's fiscal year(s) that follow the initial fiscal year
of the Term to continue the purchase of the total quantity of electricity
covered by the Agreement, and (ii) otherwise has no legally available
funds for the purchase of electricity, Buyer may terminate the
Agreement at the end of Buyer's then current fiscal year by (a) giving
Seller ninety (90) calendar days written notice to Seller and (b)
enclosing therewith a sworn statement that the foregoing conditions
exist. In this sole event, Buyer shall not be obligated to make contract
payments beyond the end of the then current fiscal year.
Notwithstanding the foregoing, Buyer covenants and represents to
Seller that (a) Buyer has budgeted and has available sufficient funds to
comply with its obligations under the Agreement for the current fiscal
year, (b) there are no circumstances presently affecting Buyer that
could reasonably be expected to adversely affect its ability to budget
funds for the payment of all sums due under the Agreement, (c) Buyer
believes that funds can be obtained in amounts sufficient to make all
contract payments during the full Term and intends to make all required
contract payments for the full Term, (d) Buyer covenants that it will do
all things within its power to obtain, maintain and properly request and
pursue funds from which contract payments may be made, specifically,
including in its annual budget requests amounts sufficient to make
contract payments for the full Term, (e) Buyer will not give priority in the
appropriation of funds for the acquisition or use of additional energy
services, (f) if any funds are appropriated for electricity costs, such
funds shall be applied first to the cost of electricity to be provided
pursuant to the Agreement and that any such funds shall not be used
to pay for electric power from any other electric power provider for the
accounts covered in the Agreement, and (g) Buyer agrees to notify
Seller in writing of such non - appropriation at the earliest practicable
time subsequent to the failure to appropriate. As of the termination
date under this Section 6.3, Seller shall have no further duty to supply
electricity to Buyer and shall move service for Buyer's Premises to the
POLR on the date of termination for non - appropriation.
6.4 If Buyer uses its inherent powers as a governmental entity under
the provisions of Articles VII (except for a bond fide event of force
Majeure), X, or in any other manner to circumvent the intent or terms
and provisions of the Agreement, Buyer shall be responsible for
contract damages caused by such action.
VIII. Article 8.2 shall be deleted in its entirety and replace with the following:
ANY LIABILITY UNDER THE AGREEMENT WILL BE LIMITED TO
DIRECT ACTUAL DAMAGES AS THE SOLE AND EXCLUSIVE
REMEDY, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN
EQUITY ARE WAIVED. NEITHER PARTY WILL BE LIABLE FOR
CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY
OR INDIRECT DAMAGES, INCLUDING LOST PROFITS OR OTHER
BUSINESS INTERRUPTION DAMAGES, WHETHER IN TORT OR
CONTRACT OR OTHERWISE IN CONNECTION WITH THE
AGREEMENT. THE LIMITATIONS IMPOSED ON REMEDIES AND
DAMAGE MEASUREMENT WILL BE WITHOUT REGARD TO CAUSE,
INCLUDING NEGLIGENCE OF ANY PARTY, WHETHER SOLE, JOINT,
CONCURRENT, ACTIVE OR PASSIVE
IX. Article X is hereby amended to add a new Section 10.4 to read in its
entirety as follows:
10.4 The Parties hereby acknowledge and agree that this Agreement is a
Covered Contract and shall be subject to all provisions of the Code.
X. Article XI shall be retitled "Responsibility" and Sections 11.1 and 11.2 of the
Terms and Conditions shall be deleted in their entirety and replaced with
the following:
11.1 As between the Parties, Buyer assumes full responsibility for electric
energy on Buyer's side (downstream) of the TDSP Point of Delivery, and
agrees to the full extent allowed by law, to and shall hold harmless Seller,
its parent company and all of its affiliates (except any which may be the
TDSP serving Buyer's Premise(s)), and all of their respective officers,
directors, shareholders, associates, employees, servants, and agents
(collectively referred to as "Seller Group "), from and against all claims,
losses, expenses, damages, demands, judgments, causes of action, and
suits of any kind (collectively referred to "Claims "), including Claims for
personal injury, death, or damages to property, occurring on Buyer's side of
the TDSP Point of Delivery, arising out of or related to the electric power
and energy and /or Buyer's performance under the Agreement.
11.2 As between the Parties, Seller assumes full responsibility for electric
energy on Seller's side (upstream) of the Seller Point of Delivery, and
agrees to and shall hold harmless Buyer, its officials, associates,
employees, servants, and agents (collectively referred to as "Buyer
Group "), from and against all Claims, including Claims for personal injury,
death, or damages to property occurring on Seller's side of the Seller Point
of Delivery, arising out of or related to the electric power and energy and /or
Seller's performance under the Agreement.
XI. Sections 12.6 and 12.7 of the Terms and Conditions shall be deleted in
their entirety and replaced with the following:
12.6 No termination or cancellation of the Agreement will relieve either
Party of any obligations under the Agreement that by their nature
survive such termination or cancellation, including, but not limited to, all
warranties, obligations to hold harmless, obligations to pay for
electricity taken, and obligations for any breaches of contract.
12.7 Seller acknowledges that Buyer is a governmental body that is
subject to public information laws, including Chapter 552 of the Texas
Government Code, which requires Buyer to release any information
that is defined as or deemed to be public (the "Public Information
Statutes "). Subject to any Public Information Statute or related order,
rule or regulation requiring disclosure, Buyer agrees to keep all terms
and provisions of the Agreement, and any information and records in
Seller's possession that are provided under the Agreement,
confidential and not to disclose the terms of the same to any third
parties without the prior written consent of Seller. It is understood and
agreed that the foregoing constitutes proprietary and confidential
information of Seller, the release of which could hinder or harm Seller's
competitive position, and therefore is not intended to constitute public
information under the Texas Public Information Act and shall not be
released by Buyer, unless determined otherwise by the Texas Attorney
General or a court of competent jurisdiction. Nothing in this section will
require Buyer to pursue a legal challenge in any court to seek to overturn a
ruling by the Texas Attorney General's Office or a court requiring disclosure
Version: AM -Local Government - 041307 Page 7 of 9 CONFIDENTIAL
pursuant to the provisions of the Public Information Statutes, but Buyer
shall (i) cooperate and assist Seller if Seller pursues such a challenge and
(ii) make no disclosure until, if, and when Seller's challenge has been finally
denied.
XII. Section 12.13 of the Terms and Conditions shall be deleted in its entirety
and replaced with the following:
12.13 Choice of Law / Venue. THE AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY
CONFLICT OF LAWS PRINCIPLES WHICH OTHERWISE MIGHT BE
APPLICABLE. THE PARTIES RECOGNIZE THAT THE AGREEMENT
IS PERFORMABLE IN PART IN DALLAS COUNTY AND IN PART IN
TARRANT COUNTY.
XIII A new Section 12.15 of the Terms and Conditions is hereby added to read
in its entirety as follows:
12.15 Attorneys' Fees. Pursuant to Section 271.159 of the Code, in
any litigation to enforce the terms of the Agreement, the prevailing
party is entitled to recover its reasonable and necessary attorneys' fees
from the non - prevailing party.
XIV. A new Section 12.16 of the Terms and Conditions is hereby added to read
in its entirety as follows:
12.16 Representation and Warranty. Buyer hereby represents and
warrants to Seller that it is authorized by statute or the constitution to enter
into this Agreement.
Version: AM -Local Government - 041307 Page 8 of 9 CONFIDENTIAL
Version: AM -Local Government - 041307 Page 9 of 9
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