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R-07-12-20-9B1 - 12/20/2007 RESOLUTION NO. R-07-12-20-9B 1 WHEREAS, under Senate Bill 7 of the 76th Legislature the Texas Legislature deregulated the purchase of electric power in the State of Texas, and WHEREAS, in order for the City to timely execute an electric power supply contract with a Retail Electric Provider (REP) to obtain the best price in the volatile energy market, this Resolution authorizes the Mayor to execute one or more power supply contracts during the current fiscal year to purchase power from a Retail Electric Provider, provided the terms of this Resolution are complied with, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, Section 1: During the current fiscal year, the Mayor may execute, on behalf of the City, one or more contracts to purchase power between the City and a Retail Electric Provider in accordance with the terms of this Resolution. Section 2 : The Mayor may only execute an electric power supply contract ( "Contract") with an REP in the event the following conditions are strictly complied with: (i) the term of the Contract is no less than six months and no more than three years; (ii) the price per kilowatt-hour KWH shall be competitive, considering the terms of the Houston Galveston Area Council of Governments ( "HGAC" ) negotiated Contract; (iii) that the REP recommended by CGP Solutions was selected in a competitive process in which the recommended REP offers the "Best Value" Contract to the City when considering the following factors : (a) price per KWH; 0:\wdoxTRESOLMR71220B l.WPD nnc (b) the amount, if any, of premiums to be paid by the City for using either less or more electrical power than its historic demand data; and (c) ability to provide detailed, consolidated billing for the City. Section 3 : This Resolution shall take effect upon adoption. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 20th day of December, 07 . - N WELL, or City of Rou Rock, Texas ATTEST: CJMtA----, IA. SARA L. WHITE, City Secretary 2 DATE: December 13, 2007 SUBJECT: City Council Meeting - December 20, 2007 ITEM: 9131. Consider a resolution granting authority to the Mayor to execute one or more electrical power purchase contracts with a term of no less than six months and no more than three years with a Retail Electric Provider to provide electric power to the City. Department: Finance Department Staff Person: Cindy Demers, Finance Director Justification: The City's current contract with Champion Energy Services expires May 31, 2008. Natural gas costs have been unpredictable over the last several months. We will be looking for an opportunity to obtain favorable pricing between now and May of 2008. The City's current contract was obtained through Cooperative Procurement with the Houston Galveston Area Council of Governments (HGAC). This resolution grants the Mayor the authority to execute the negotiated contract that results from this process. Funding: This item does not bind the City to any agreement or course of action. Cost: N/A Source of funds: N/A Outside Resources: Greg Pendley, CGP Solutions Background Information: Since deregulation of the electric market, the City of Round Rock has procured electricity as a member of the Governmental Aggregation Project (GAP) and most recently as a member of Houston Galveston Area Council of Governments (HGAC) through its HGAC Energy Purchasing Corporation, which has more than 240 local governments as members. Public Comment: N/A EXECUTED DOCUMENT FOLLOWS Apr-25-2008 11 : 50 AM Constellation NewEnergy Inc . 7132227346 1/18 04/24/2008 15:37 rAX 51221874,-'. CORR PURCIIASINC 0013 I - - 0 Constellation NewEnergy- Master Electricity Supply Agreement . f" City of Round Rock('Customer),a _ and Constellation NewEnergy,Inc.('NewEnergy"),a Delaware corporation,enter into this Master Electricity Supply Agreement, which includes the attached General Terms and Conditions (the "Master Electricity Supply Agreement) as of the later date set forth under the Parties'signatures below(the"Effective Date'. Newt nergy and Customer are sometimes referred to individually as a"Party'and collectively as the"Parties."This Master Electricity Supply Agreement is intended to govern transactions for the purchase and sale of electricity and related services to be entered into between the Parties from time to time and shall be evidenced by separate pricing schedule(s)between the Parties(each,a"Pricing Schedule'.Each Pricing Schedule shall set forth certain commercial and other terms for the purchase and sale of electricity, and following execution and delivery by both Parties shall become effective and be subject to this Master Electricity Supply Agreement. The Pacing Schedule(s) along with this Master Electricity Supply Agreement are sometimes herein collectively referred to as the"Agreement",The Parties agree as follows: 1.' ELECTRICITY SUPPLY. From time to time NewEnergy shall supply, and Customer shall purchase, on an exclusive basis, Customer's full requirements for electricity for the Account(s)identified in the Pricing Schedules)for the tern set forth on such Pricing Schedule(s).The Pricing Schedule(s)shall also specify services, including without limitation scheduling coordination and transmission and ancillary services, provided by NewEnergy in connection with the supply of electricity to Customer. Consistent with applicable Law,NewEnergy,in Its sole discretion,is authoitzed to select on behalf of Customer such sources of electric generation as it deems appropriate for the Accounts.NewEnergy shag deliver the electricity to the Delivery Poiot(s),at which point rlsk of loss and fitie shall transfer to Customer, 2, iNFORMATION AND AUTHORIZATION. Customer shall designate NewEnergy to the Utility andfor ISO, as appropriate, as an authorized recipient of Customer's current and historical energy billing and usage data. Customer authorizes NewEnergy to take such actions it deems necessary to enroll the Acoount(s)with the Utility and/or ISO as Accounts to be served by NewEnergy and otherwise meet its obligations under this Agreement,including executing on Customer's behalf any documents necessary to effectuate any such election. Customer shall take any actions and execute any documents as NewEnergy shall reasonably request in this regard. Customer shall also provide to NewEnergy,at minimum,the following Information:Customer's Utility account number and meter number(s),meter read data, rate class,electric usage,Customer's formal legal name,address(es),telephone number,facsimile number,and other information as NewEnergy may reasonably require from time tb time consistent with applicable Law, including without limitation, facility descriptions, operation information, and other information regarding the Account(s). -Furthermore,Customer shall promptly notify NewEnergy in writing of any changes in any of the foregoing Information,Including without limitation(i) any change to the name associated with the Account(s);(li)any expected material change In the volume or pattern of use,including the closing of an Account for any reason;(ill)the replacement of an Account number with a new number,and (v)an assignment by the Utility and/or ISO of a new Account number to any existing service addresses of Customer listed in a Pricing Schedule, 3. INVOICING AND PAYMENT. For electric energy supplied under this Agreement Custoiner shall pay the NewEnergy Electricity Charge. In addition to the NewEnergy Electricity Charge,Customer shall pay and be responsible for all such other amounts related to the purchase and delivery of electricity,which shall include amounts for() Taxes related in any way to the NewEnergy Electricity Charge or any other products or services provided hereunder and OD Delivery Charges and related Taxes, Invoices issued by NewEnergy Vvill be sent to Customer In accordance with NewEnergy's normal billing cycle,Each billing statement sent to Customer shall also be subject to adjustment for errors in arithmetic,computation, meter readings or other errors.Invoices provided by NewEnergy,whether during the term of this Agreement or thereafter,shall be due and payable on the date of such invoice without offset or reduction of any kind. Customer shall make payments to the address set forth on the Pricing Schedule(s). if NevVEnergy does not receive payment on or before the Payment Date, NewEnergy shall have the right to assess and collect from Customer a Late Payment Charge(which shall be specified in the Pricing Schedule), In addition,in the case of late payments interest will accrue daily on outstanding amounts from the due date until paid in full at the rate of 1%per month,or the highest rate permitted by Law,whichever is less. 4. TERM,The Master Electricity Supply Agreement will commence on the Effective Date and,unless terminated earlier as otherwise provided in this Agreement,will continue until terminated by either Party upon 30 days written notice to the other. If at the time of such termination notice any Prlcing Schedule(s)are in effect,such termination will not become effective as to any such Pricing Schedule until its expiration;which shall continue to be governed by the terms and conditions of this Master Electricity Supply Agrd6ment, 5. ACCEPTANCE. This Master Electricity Supply Agreement and any Pricing SChaduleN shall not be binding or enforceable against NewEnergy unless and until signed by an authorized mpresentative of NewEnergy. IN WiTNESS WHEREOF,the Parties have caused this Agreement to be executed by their duly authorized representatives as of the respective dates set forth below. Constellation NewE ergy,Inc. City of Round Ro* `7 By By., Name: Name: � Vlcb Pres FA. Rufifel- tv- 11110p, . Title: Ed1n1_r1-Pg,F.pf,c Sales Title:� Date: . APR 2 5 08 Date: Rev.1.1 Dated April 14,2006 02006 Constalla6on NewEnergy,Inc.;All dents rasQrvad PAGE 131191 RCVD AT 412,412008 5:28:10 PM[Eastern Daylight Timel"SVR:RFXBRD-0M0-01[7"DNIS:3653"CSID:5122187028"DURATION[arta-3s):13=18 04/25/2008 FRI 11:54 [TX/RX NO 51821 Q001 Apr-25-2008 11 : 50 AM Constellation NewEnergy Inc . 7132227346 2/18 04/24/2008 15:38 PAX 512218707^ CORR PURCHASING U014 General Termlt and Conditions for Electricity Supply T1. Definitions. Ali capitalized terms have the meanings setf61h below,In the Pricing Schedules,or defined elsewhere In the Agreement "Accounts"means those accounts)listed in the Pricing Schedule(s)which are to be supplied with electricity by NewEnergy under this Agreement. "Affiliate"of a Party means any person or entity controlled by;that controls,or that is under common control with,such Party.The term"control' (including hie terms"controlling","conlrolled by"and'under common control Wthl means the possession,directly or indirectly,of the power to direct or cause the direction of the management policies of a Patty,whether through the ownership of voting securities,by contract,or otherwise. "Delivery Charges"mean those amounts payable(including Taxes and surcharges)by Customer for services provided by the Utility,!SO or other third parties. "Governing.huisdietion"means with respect to each Account;the State in which such Account Is located;provided that the governing jurisdiction shall be deemed to be the State of New York if the matter at issue involves Accounts or matters in more than one state, "Holdover Rate"shall have the meaning set forth in the Pricing Schedule(s). "ISO"means the independent system operator or regional transmission organization identified on the Pricing Schedule(s),or any successor or replacement entity or other entity,public or private,administering transmission reliability and control of the electricity grid. "Law"means any law,rule,regulation,ordinance,statute,judicial decision;administrative order,ISO operating guideline or protocol,Utility or ISO tariff,rule of the public utilities commission,public service commission or similar state commission or agency having jurisdiction aver Utilities and the electricity distribution system of the state in which the Accounts are located,and the like: "NewEnergy Electricity Charge"means the product of the fixed or variable price for electricity as set forth in the Pricing Schedule(s)for each Account multiplied by the Customers kilowatt hour(kWh)usage during the applicable period. "Notice Period"shall have the meaning setfarth in the Pricing Schedule(s). "Payment Date"shall have the meaning set forth in the Pricing Schedule(s). "Taxes" mean all applicable federal, state; municipal and other taxes, duties, fees, levies, premiums or any other charges imposed by any governmental authority,whether direct or indirect,and whether in effect as of the Effective Date or enacted after such date,together with all interest, penalties or other additional amounts imposed in respect thereof Includfng without limitation,those levied on or measured by,or referred to as sales, consumption,goods and services,use,value added,receipts taxes,kWh taxes,franchise tax,privilege taxes(such as Ohio's Commercial Activity Tax),excise,stamp,withholding or surtaxes(but shall not include taxes imposed on the net income of NewEnergy), The term'Taxes" shall include any and all amounts imposed either on the Customer directly or on NewEnergy in its function as a supplier of Customer.and that are associated in any way with the supply of energy and related services to Customer(in which case the Customer shall be responsible to reimburse NewEnergy for all such amounts). All Taxes invoiced to the Customer under this Agreement will be displayed on the invoice as a separate line item or included In the NewEnergy Electricity Charge as required by Law. 'Utility"means the local electricity distribution company 6Hming andlor controlling and maintaining the distribution system required for delivery of electricity to the Account(s). T2.1. Creditworthiness. From time to time Customer will provide NewEnergy with reasonable information as requested by NewEnergy to complete a credit review. Continued supply of electricity under this Agreement:is contingent upon NewEnergy's determination, in its sole discretion, that Customer is creditworthy. If at any time and on an ongoing basis during the term of this Agreement NewEnergy determines that Customer's credit is unsatisfactory,Customer has experienced any adverse change ilii its financial condition,Customer's financial obligations to NewEnergy increase Under this Agreement for any reason,or the Customer has made two or more late payments,NewEnergy will have the right to require that Customer post security or make other credit arrangements satisfactoi),to NewEnergy(which may include without limitation,making a cash deposit,posting a letter of credit at a financially sound bank or other financial institution,or prepaying NewEnergy for electricity supplied under this Agreement)or to increase or supplement security or other credit arrangements previously put in place, in any such circumstance to ensure prompt payment by Customer of amounts owed or otherwise payable under this Agreement Customer will provide the requested security or credit arrangements, Including any increase thereof,within 5 business days of NewEnergy's request. T2.2. Default An'Event of Default"means any one of the following:(a)Customer's failure to make,when due,any payment required under this Agreement it not paid within the Notice Period;or(b)any representation or warranty made by a Party in this Agreement proves to have been false or misleading in any'matenal respect when made or ceases to remain true in all material respects during the term of this Agreement,if not cured within 5 business days ager written notice from the other Party; or(c) Customer fails to provide additional security or credit arrangements as provided in this Agreement;or(d)except to the extent excused by Force Majeure,the failure by a Party to perform any material obligation set forth in this Agreement(other than the events that are otherwise specifically covered as a separate Event of Default hereunder)where, In circumstances such failure is curable,it is not cured within 20 business days after receipt of written notice thereof;or(e)a Party:0)makes an assignment or any general arrangement for the Iienerl of creditors;(1)has a liquidator,administrator,receiver,trustee,conservator or similar official appointed for It Or any substantial portion of its properly or assets(iii)fries a petition or otherwise commences,authorizes or acquiesces In the commencement of a proceeding or cause of action under any bankruptcy or similar law for the protection of creditors,or has such petition filed against it and such petition is not withdrawn or dismissed for 20 business days after such filing;(iv)otherwise becomes bankrupt or insolvent(however evidenced);or(v)is unable to pay its debts as they fall due. T2.3. Remedies upon Default. (a)If an Event of Default occurs with respect to a Party(the'Defaulting Party),the other Party(the"Non•Defaulttng Partys")may,in its discretion, at any time,terminate this Agreement in whole or solely with respect to those Accounts adversely affected by such Event of Default,as a result of such default upon written notice to the Defaulting Party setting forth,the effective date of termination (the "Early Termination Date7. If this Agreement is terminated,in whole or in part,pursuant this Section,the Non-Defaulting Party will In good faith calculate a termination payment as set -2- Rev.i.1 Dated April 14,2006 2006 Constellation.Newl+nergy,roc4 All rights reserved PAGE 14119'RCVD AT 4/24/2008 5:28-10 PM[Eastern Daylight Trme]'SVR:RFXBRD-OMP-0117'DNIS:3653"CBID:5122187028"DURATION(mm-ss):13-18 04/25/2008 FRI 11:54 [TX/RX NO 51821 U002 Apr-25-2008 11 : 51 AM Constellation NewEnergy Inc . 7132227346 3/ 18 04/24/2008 15:39 FAX 51221870,"" CORR PURCaA5ING a015 1 I forth below,and the Defaulting Party shall pay such amount following receipt of notice of such amount as provided herein.The Parties acknowledge and agree that any termination payment under this Agree eht dvnstitutes a reasonable approximation of harm or loss, and is not a penalty or punitive in any respect. (b) if Custormer terminates this Agreement,in whole or in p Drt,upon the default of NewEnergy, NewEnergy will pay Customer the following early termination payment[Market Value plus Costs]minus Conti, Value,so long as the Market Value plus Costs is greater than the Contract Value. (c)If NewEnergy terminates this Agreement,in whole or in Fart,upon the default of Customer or Customer terminates this Agreement,in whole or in part;as permitted under a Pricing Schedule,Customer W pay NewEnergy the following early termination payment[Contract Value plus Costs] minus Market Value,so long as the Contract Value plus Cos 4(S_Is greater than the Market Value. (d)For purposes of this Section,"Contract Value"means rt NewEnergy Electricity Charge for the Remaining Anticipated Usage. °Market Value" means the amount, as determined by the Non-Defaulting Party as of the Early Termination Date, a bona We third_party would pay for the Remaining Anticipated Usage at current market prices.In dt temlining'Market Value",the Non-DefautGng Party may consider,among other things, quotations from leading dealers in the wholesale energy ir dustry, the Non-Defaulting Party's intemally developed forward price valuations,and other bona fide offers from either third parties or Affiliates of he Non-Defaulting Party,all as commercially available to the Non-Defaulting Party and adjusted for the length of the Remaining Term and diffe ices in transmisslonl costs, volume,and other factors, as the Non-Defaulting Party reasonably determines. "Costs"mean brokerage fees,con missions and other similar transaction casts and expenses reasonably incurred by,or an behalf of,the Non-Defaulting Party in terminating,liciulde Ing,or obtaining any arrangement pursuant to which it has hedged its obligations,and attorneys'fees,expenses and costs,if any,Incurred in Conn cfion with enforcing its rights under this Agreement. "Remaining Anticipated Usage" means the amount of electricity(in kWh),as determined by he Nan-Defaulting Party,that would have been used by each Account covered by the termination during the remaining term of this Agreement hai it not been terminated early(the'Remaining Term').In making this determination the Non-Defaulting Party may(but Is not required to)consider (l) anticipated consistency with or deviations from past electricity usagd patterns, n variations in anticipated weather patterns,(iii) general ece nomic conditions or conditions affecting the specific industry(les) in which Customer operates,and/or(iv)any other factors the Non-Defaulting P rty deems appropriate. T2.4 Certain Rights after Termination or Expiration. If fc lowing termination or expiration of this Agreement(whether in whole or in part),for any reason the Accounts remain designated by the Utility and/o the ISO as being served by NewEnergy, NewEnergy may,consistent with Law and in Its tote discretion, either(i)continue to serve such Accbu t(s) on a month-to-month holdover basis(the'Holdover Term') or (Ii) move such Account(s)to the then applicable tariff service,whether defy ltservice or otherwise;or to another authorized provider of elecfriddty required to serve as the 'provider of last resort° (any of the foregoing, "Alt mative Service"), and In edher case NewEnergy shall have the tight to pursue all additional remedies available at law or in equity.The NewE iergy Electricity Charge payable during the Holdover Term shall be the Holdover Rate set forth in the applicable Pricing Schedule, This Agreemen will continue to govern the provision of service during the Holdover Term. Either Party may terminate the Holdover Tenn at any time upon 30 d ys advance written notice to the other or such other time period requited by Law, whichever is longer,such termination to be effective as of to next applicable refer read cycle date with respect to each Account.Furthermore, during a Holdover Term, NewEnergy may at any time mo a the Accounts to Alternative Service without penalty or prejudice. If NewEnergy so requests, Customer will cooperate with NewE nergy In itsf#orts to cease providing service to Customer after termination or expiration of this Agreement,whether in whole or In part. I T2,5 Change In Low If anew Law shall be enacted,or thre shall occur any revisions in,implementation of,amendments to,or interpretations of any Law (including without limitation those that establist new, or otherwise modify existing, alterative resource adequacy requirements or renewable portfolio standards or that Impose new Taxes or change the rate of existing Taxes), in either Circumstance affecting approved or anticipated rates,tariffs,Taxes,charges,fees,assessment ,or other costs relating to the licensing,marketing,supply,generation,transmission or distribution of electric power and/or energy that could adve ely affect the anticipated economic return to NewEnergy under this Agreement(any of the foregoing a"Change In Law),NewEnergy shall have th right to adjust upward the amounts payable by Customer under this Agreement to take account of such adverse economic consequences. SuCB additional amounts will be included in subsequent invoices to Customer. For the avoidance of doubt,where a Change in Law has occurred p for to the Effecfive Date but NewEnergy cannot determine the economic Impact of such Change in Law because sufficient information in not avalla a(including lack of final implementing roles or regulations),NewEnergy shall have the tight to adjust upward the amounts payable by Customer,1 such time during the term of this Agreement as NewEnergy Is able to determine the economic effect of such Change in Law. I T2.8, Representations and Warranties, (a) Mutual Representations and Warranties. Each P warrants and represents to the other the following: (1) it is duly organized, validly operating and In good standing under the laws of the jurisd 'on of its formation;(2)it is authorized and qualified to do business In the jurlsdiotioms rieou:sary to perform under this Agreement;(3)the execu on,delivery and performance of this Agreement are duly authorized and do not violate any governing documents or any contracts to which it is a Lr or any laws,rules or regulations applicable to R;(4)there is no material event{s)or other agreements)which would impair that Party's right,a horny or ability to execute this Agreement and ob)erwise consummate the transactions contemplated by this Agreement and (b) 1 has knrnvledg and experience that enable it to evaluate the merits and risks associated with this Agreement. (b) Additional Representations,Warranties and Cove, ants of Customer. Custorner warrants, represents and covenants that: (1) the data given and representations made concerning Its Accounts a true and correct;(2)Customer is entering into this Agreement to purchase its electric energy requirements only;and that the electric energy pu hased under this Agreement will be consumed at the facilities to which the Accounts relate,and Customer will not resell such electric energy to any third party(with the sole exception of Customer tenants or lessees in the ordinary course of Customees business);and(3)Customer is the pa y of record of the Accounts,or if it is not the party of record,it has the authority to enter Into and bind its principal to this Agreement.If requested,C tdomer will provide NewEnergy written proof of such authority. _g_ Rev.1:1 Dated April 14,2006 02006 Constellation NcwEncrgy,Inc.;All rights reservcd PAGE 15119"RCVD AT 4!2411008 5:28:10 PM(Eastern Daylight Timej"SVR:RFXBRD-oMF-0117`DN18:3053"CUID:5122187028"DURATION(mm-ss):13.18 04/25/2008 FRI 11:54 [TX/RX NO 51821 0 003 Apr-25-2008 11 : 52 AM Constellation NewEnergy Inc . 7132227346 4/ 18 04/24/2008 15:40 FAX,512218702" t CO1Z12 PURCHASING T2.7. Force NaJeure. 'Force Majeure"means an even that Is not within the reasonable control of the Party claiming Force Majeure(°Claiming Patty"),and that by the exercise of due diligence,the ClainIng Party Is unable to overcome in a commerdally reasonable manner,and such event win not be deemed a breach or default under Mls Agreame 1L Farce Majeure includes,but is not limited to,acts of God;fire;war,terrorism;flood; earthquake;civil dlsturbanco;sabotage;facility failure; cud ii1ment,disruption or interruption of distribution,transmission, or supply,declaration of emergency by the Utility or ISO;regulatory,administrative,c r legislative action,or action or restraint by court order or governmental authority;ar any act or omission of a third party not under the control of the alming Party(including without[Imitation the Utility or ISO).Notwithstanding any other provision of this Agreement,where a Party Is unable to out any obligation under this Agreement due to a Force Majeure event(other than a payment obligation,which will not be excused for Force Me eure),flits Agreement will remain in effect but such obligation will be suspended for the period necessary as a result of the Force Majeure,provid sd that; m to the extent reasonably possible,the Claiming Party gives the other Party prompt written notice dascdbing the particulars of the Force Majeure,including but not limited to,the nature and date of the occurrenca and the expected duration of[tie Force Majeure;(ii)the suspension of performance is of no greater scope and of no longer duration than is required by the Force Majeure;and Cli)the Claiming Party uses commercial y reasonable efforts to remedy Its inability to perform. If the Force Majeure continues for a period of 30 days(the"Extended Force Majeure Trigger Date)or more,the perforating Party will have the right to terminate this Agreement with respect to those Accounts adversely affected by the Force Majeure by providing the Claiming Party 15 days prior written notice after the Extended Force Majeure Trigger Date. T2.8. indemnification. At and after the point at whic I Customer takes delivery, Customer agrees to defend, indemnify and hold harmless NewEnergy and all its Affiflales, and all of their respec ve officers, difectors, shareholders, associates, employees, agents, representatives, successors and assigns(collectively including NewEnergy eferred to as the"NewEnergy Parties')from and against all claims,losses,expenses (including attorneys'fees and court costs),damages,derma ds,judgments,causes of action or suits(collectively,'Clalri*)of any kind,including but not limited to,Claims for personal injury,death,or property emage,arising out of or related to this Agreement T2.9, certain Limitations. (a)Limitations of Liability,Notwithstanding any otherp Irision of this Agreement to the contrary,the entire liability of the NewEnergy Parties for any and all Ciaims of any kind arising from or relating to s Agreement,including any causes of action in contract,tort,strict liability or otherwise, will not exceed the full amount due from Customer for the uwEnergy Electricity Charge under the first billing cycie ander this Agreement and will be limited to direct actual damages only, subject in all rasps to an affirmative obligation an the part of the Customer to mitigate its damages. Furthermore,In no event will the NewEnergy Parties be Ii mile for any consequential,exemplary,special,incidental or punitive damages,including, without limitation,lost opportunities or lost profits. (b) Utility/ISO Services. Customer acknowledges and ag ees that the Utility and ISO are exclusively responsible for the electricity delivery system and all interruptions in the delivery of service and that NovEnergy exercises no independent control over the Utility's facilities or the ISO-controlled grid necessary forthe delivery of electricity. As such,Cusb mer disclaims any and all right to damages from NewEnergy arising from any interruption in electric service caused in whole or in part by interuptio i,termination or deterioration of service on the UtiCrty's system or on the ISO-controlled grid.At and atter the Delivery Point(s), Customer will be re ponsible for all distribution and transmission changes,Including congestion and ancillary costs,If any,assessed by the Utility,the ISO,or any thin party. Furthermore.NewEnergy is not responsible for providing services related to the maintenance and operation of the Utility's electricity deliv y system,services regarding Customer's consumption of electricity, or other services which are provided by the Utility or third parties. Newllne y will have no liability for any act or omission of the Utility,the ISO,or any third party,and Customer understands and agrees that It shall be solely re ponsible for all amounts due to the Utility or third parries for these and other services. (c)SetofilNetting.NewEnergy shall have the right to se ff and net against any amounts owed to it by Customer under this Agreement,including without limitation any earty termination payment,any of a following amounts:(I)monies owed to Customer under this Agreement or under any other agreement between NewEnergy or any of NewEner Ys Affiliates,on the one hand,and Customer or any of Customer's Affiliates and Ci)any collateral or other financial assurance provided by Custom r to NewEnergy under this Agreement. T2.10. DISCLAIMER. CUSTOMER ACKNOWLEDGES ND AGREES THAT NO WARRANTY,DUTY,OR REMEDY,WHETHER EXPRESSED, IMPLIED,OR STATUTORY,IS GIVEN OR INTENDED T ARISE OUT OF THIS AGREEMENT EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, AND NEWENERGY SPECIFICALLY DISC IMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABIL17Y OR FITNESS FOR PARTICULAR PURPOSE OR USE, T2.11. Waiver and Severability.Failure to provide noti of,or object lo,any default under this Agreement will not operate or be construed as a waiver of any future default, whether like or different in character. if any portion of this Agreement, or appGcallon thereof to any person or circumstance,is held legally invalid,the remainder will not affected and will be valid and enforced to the fullest extent permitted by law and equity, and there will be deemed substituted for the invalid pro ions such provisions as will most nearly carry out the mutual intent of the Parties as expressed in this Agreement to the fullest extent permitted by applicable Law. T2.12. Assignment. .NewEnergy may assign, sell,pi go, transfer, or encumber any of its rights and obligations under this Agreement or the accounts, revenues, or proceeds hereof to; (A)a bank, insurer,or other financial institution;or(B) any person or entity(1)succeeding to all or substantially all of NewEnergy's assets or business or le division or region of NewEnergy to which this Agreement relates or (ii) into which NewEnergy is merged or otherwise combined or reorgani ed;provided(with respect to this clause(B))the succeeding entity agrees to be bound to this Agreement;or(C)any Affiliate of NewEnergy. Custo er may assign all(but not less than all) its rights and obligations under this Agreement In their entirety or solely with respect to certain Accounts; vidad(A)It gives NewEnergy 60 days written notice of its intent to do so;(B)the assignee sa6sfes in full NewEnetyy's cred(t requirements;(G)the ss'gnee assumes in writing all of Customers obligations under this Agreement;and(D) Customer continues to be liable for performance,including payment forgoods and services received,prior to the assignment date. T2.13. CoMtdentialltyCustomer agrees to keep all term and provisions of this Agreement,including the pricing otferad.to Customer,confidential and not to disclose them to any third patties without t ,9 prior written consent of NewEnergy. NewEnergy will keep confidential all Customer identifying information and Account Information that is no otherw[se publicly available. Each Party shall have the right to disclose such Information A- Rev.1.1 Dated Aprnl 14,2066 '*2006 Constell4on NawEncrgy,Ina;All rights rasmed PAGE 16119'RCVD AT 4/2412008 5:28:10 Pra[Eastern DayOgnt Trmci"6V1Z:RFXBRD-OMF-0117"DNIs:3653"CSID:5122137028'DURATION(mm.ss):13+18 04/25/2008 FRI 11:54 [TX/RX NO 51821 0004 Apr-25-2008 11 : 53 AM Constellation NewEnergy Inc . 7132227346 5/ 18 04/24/2008 15:41 FAX 51221870" CORR FURCHASING [in 017 to its Affiroes and its and its Affiliates'employees,agents,advisors,and independent contractors who have a need to know such information and who agree to hold such Information in the strictest confidence. NewEnergy shall also have the right to disclose infomratfon respecting Customer, including this Agreement, to brokers, agents, consultants or other third parties that are representing Customer in the purchase of electricity. Furthermore,NewEnergy may make such other disclosures to third parties of information,including aggregate consumption data,provided they are in a manner that cannot be reasonably expected to specifically identify Customer. If disclosure of'a Party's confidential Information is sought through process of a court, or a state or federal regulatory agency or other legal compulsion, the Party receiving such request will notify the other Party immediately to afford the other Party the opportunity to opriose such disclosure or otherwise obtain a protective order or other relief as may be available.The Party receiving such disclosure request will c wperate with the other Party in its attempts to obtain such protections. T2.14. CHOICE OF LAW;VENUE,Attomey Fees and Expenscs. The validity, performance,and construction of this Agreement will be governed and Interpreted In accordance with the laws of the Governing Jurisdiction,without giving effect to conflict of law principles.Any controversy or claim arising from or relating to this Agreement will be settled in accordance with the express terms of this Agreeme t:by a court located in the Governing Jurisdiction(and each Party hereto waives any right to object to venue in this regard). EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RiGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY OR TO INITIATE OR BECOME A PARTY TO ANY CLASS ACTION CLAIMS iN RESPECT OF ANY AGTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. If either Party pursues court action to enforce its rights under this Agreement, the norFprevaiting Party shall promptly reimburse the prevailing Party for all its attomey fees,expenses and costs. Furt1w,NewEnergy shall be entitled to recover from Customer all costs.Including altomeys'fees,incurred In connection with its efforts,whether in court or otherwise,to collect amounts due and payable to NewEnergy. T2.15. No Third Party Beneficiaries, Except for NewEnergy Parties under the indemnity provisions of this Agreement,this Agreement is for the sole and exclusive benefit of the Parties hereto,and no third party will have any rights under this Agreement whatsoever. If Customer is represented by a third party In conneciion with the procurement or perforrnance of this Agreement, unless otherwise expressly provided elsewhere in this Agreement NewEnergy will have no liability therefor,and Customer will be fully responsible for any fee,commission or other compensation owing any such third party,and will indemnify,defend and hold harmless the NewEnergy Parties from any and all Claims of any kind of any such third party arising from or relating to this Agreement T2.16. Notice. To be effective,all notices must be in writing delivered by hand,by certified mail,return receipt requested,or by express carrier to the addresses provided In this Agreement.A Party may change its address by providing notice of such change in accordance herewith. T2.17. Entire Agreement;Survival of Terms.This Agreement(which constitutes the Master Electricity Supply Agreement,Including these General Terms and Conditions,and Pricing Schedules)executed and delivered by the Parties from time to time)embodies the Parties'entire agreement and understanding,supersedes all prior agreements and understandings(whether written or oral),regarding the subject matter of this Agreement,and may not be contradicted by any prior or contemporaneous oral or wriden agreement Nothing in this Agreement shall be deemed to require NewEnergy to execute and deliver this Master Electricity Supply Agreement or any Pricing Schedule,even if Customer shall have already-executed and delivered such to NewEnergy. A facsimile copy of either Party's signature will be considered an original for all purposes under this Agreement, and each Party%y!i provide its original signature upon request. Except to the extent otherwise explicitly provided in this Agreement,no amendment to this Agreement,Including the Pricing Schedule(s),will be valid or given any effect unless signed by both Parties.The terms of any purchase order (PO)sent by Customer and/or any alteration,addition,or modification made by Customer to the preprinted terms of this Agreement shall be vold and without any effect In the case of any conflict among the documents comprising the Agreement,they will cannel in the following order of Priority:first, the Pricing Schedule(s)(but only with respect to the Account(s)fisted on such 8chedule(s));second,the Master Electricity Supply Agreement The applicable provisions of this Agreement will continue In effect after termination or expiration hereof to the extant necessary,Including but not ilmhad to providing for final billing,billing adjustments and payments,limltabong of liability,the forum and manner of dispute resolutioh,and with respect to any indemnification obligations under this Agreement The section headings used in this Agreement are for reference purposes only and will in no way affect the meaning of the provisions of this Agreement. T2.18. Affirmation.Customer affirms that it has read this Agreement in Its entirety and It agrees to the terms and conditions contained herein. if an ambiguity or question of intent or interpretation arises,this Agreement will be construed as if drafted Jointly by the Parties,and no presumption or burden of proof will arise favoring or disfavoring either Party by virtue of the authorship of any of the provisions of this Agreement. T2.19. Relatlonship of the Parties.NewEnergy Is an indapendent contractor under this Agreement Except as otherwise explicitly provided in this Agreement,neither Party has the authority to execute documents that purport to bind the other,and nothing in this Agreement will be construed to constitute a jointventure,fiduciary relationship,partnership or other joint undertaking. T2.20. Forward Contract;Inapplicability of Commodities Exchange Act The Parties acknowledge and agree that this Agreement is a'forward contract"and that NewEnergy is a'forward contract merchant'for purposes of the U.S.Bankruptcy Code,as amended. Further,NewEnergy is not providing adylce regarding the value or advisability of trading in"commodity interests"as defined in the Commodity Exchange Act,7 U.S.C.§§1-25, et Seq.,as amended(the"CEA'),including futures contracts and commodity options or any other activity which would cause NewEnergy or any of Its Affiliates to be considered a commodity trading advisor under the CEA. -5- Rev.1.1 Dated Apr[}14,2006 ®2006 Constcllatlon NeWEncrgy,Inc.;All rights resemd PACE 17119,RCVD AT 4/2412008 5:28:10 PNi IEastem Daylight Time]"SVR:RFX5RD-OMF-Q117I DNIS:3053-CSID:5122187028"DURATION(mm-ss)'13-18 04/25/2008 FRI 11:54 [TX/RX NO 51821 0 005 Apr-25-2008 11 : 54 AM Constellation NewEnergy Inc . 7132227346 6/18 04/24/2008 15:31 FAX 51221870.1- _ CDRR FURCRASING 01002 Pricing Schedule SCHEDULE A•-FIXED PRiC5 PRICING SCHEDULE Customer: City of Round Rock Constellation Product Type: Fixed Price Retail Energy(Full Swing) 0 NewEnergy' Supply Term: See ESI ID Schedule Billing Type: Summary Billing Schedule Date:412312008 This Pricing Schedule is entered into pursuant to and in accordance with the Constellation NewEnergy, Inc. Master ElectrUy Supply Agreement ("Master Agreenwnf)executed on;April z4;,o6 beiwaen NewEnergy and Customer,and is subject to all of the provisions,terms and conditions of such Master Agreement.Notwfthstendlhg ammymmg to the contrary,any conflict between this Pricing Schedule and the Master Agreement VIII be resolved in favor of this Pricing Schedule. Capitalized terms used herein but not defined will have the meanings given to them in the Master Agreement. Proposal ID: 80423144158407241 Product Description: Fixed Price. NewEnergy will provide electric power to the Account(s)for the NewEnergy Electricity Charge plus pass Through Charges set forth herein. The energy rate does not Include any Utility charges for distribution services or any applicable taxes or surcharges with regard to the distribution of electricity. Any such Delivery Charges shall be the sole financial responsibility of Customer and NewEnergy shall have no liability therefor. NewEnergy will provide the commodity of electricity,as opposed to the transmission or distribution of electricity. The NewEnergy Electricity Charge is °fixed'for the existing term of this Agreement and only subject to change as a result of a Change in Law as described In the Master Agreement The Pass Through Charges will change during the existing term of this Agreement if and as the related charges assessed or charged to NewEnergy vary for any reason,lncWding but not[United to the as of cha ges described above. 1. NewEnergy Electricity charge.. "The NewEnergy Electricity Charge includes the following items:Energy,ERGOT administrative fees,unaccounted for energy,line loss charges, renewable energy credit charge,congestion(inter-zonal),scheduGnglforecasting charges,Four Main Ancillary Services,and Other Ancillary Services. 2. Pass Through Charges:Public Utility Gross Receipts assessment,Delivery Charges,Tazea,Emergency Interruptible Load Service(ELLS)charges and any casts associated with the implementation of a Nodal Congestion Management System(as described under"Special Provisions"below)will be passed through without markup. Special Provielons; 1. Additional Pass Through Charges or Credits. For the purpose of thts paragraph,"Nodal Congestion Manage[nent System'means the method,formulas and/or equations used to determine charges for congestion by ERCOT in the ERGOT Protocols once the ERCOT Nodal Protocols are implemented. The NewEnergy.Electricity+Charge does not Include any costs associated with the implementation of a Nodal Congestion Management System. if ERGOT Implements a Nodal Congestion Management System atter the date this Pricing Schedule is executed,NewEnergy shall charge or credit Customer(s)the difference between the real-time Load zone price and the real-time trading Hub price represented by the trading Hub with the highest concentration of 345 kV buses in the original Congestion Zone where Customer's Accounts are located for each Account on a 15 minute interval basis,multiplad by Customers metered usage(adjusted for line losses)or(il) such other amount as reasonably determined by NewEnergy consistent with the Nodal Congestion Management System. For each trading Hub;the"concentration'shall be equal to;(a)the number of 345 kV buses common to both the applicable trading Hub and the original Congestion Zone d-rvided by(b)the total number of 345 kV buses in such trading Hub. The'original Congestibn Zone shall be the Congestion Zone as it existed on the date this Pricing Schedule was executed. Any term(s)not defused herein shall have the meaning set forth in the ERCOT Protocols as amended from time to time. PSi. Certain Definitions. The definitions in this Pricing Schedule shalt replace and supersede the ERCOT Specific Terms and definitions,if any,In the Master Agreement- "Change greement"Change in Law" Is dented under the Change in Law section of the Master Electricity Supply Agreement or the Master Retail Energy Supply Agreement or is a change in law, market structure, and/or Customer's electricity needs or classiliicatiods under the shod fort Electricity Supply Agreement. "Co tract Quantity" means the quantity of E=nergy agreed to In any transaction which NewEnergy agrees to sell and deliver to Customer,and which Custo or agrees to purchase and accept from NewEnergy. "Daliv Point"for each Account means the congestion zone for such Account,as set forth in this Pricing Schedule. 0 2007AIInigh reserVed:Conteh Uoe Naw�nergy,Inc. I PAGE 2118'RCVD AT 02412003 5:23:10 PM[Eastsm DaylrghtTlmel-5VR:RFX0RD-OMF-01J7.DNIS:3653"CSiD:5122187028•DURATION(olio-s5):13.18 04/25/2008 FRI 11:54 [TX/RX NO 51821 10006 Apr-25-2008 11 : 54 AM Constellation NewEnergy Inc . 7132227346 7/18 04/24/2008 1.5:31 FAX 51221870PI CORR PURCRA,SING Ia 003 Pricing Schedule "Delivery Charges"Include, but are not limited to;Transmission and Distribution Charges,System Benefit Fund Charge,Nuclear Decommissioning Charge,Compelitive Transition Charge,Standard Customer Metering Charge,Customer Charge,Merger Savings and Rate Reduc t ali Credit Excess Mitigation Credit and Utility Imposed Reactive Power Charges,all as defined by the ERGOT Protocols or the TDSP tariffs,and any similar or related charges the TDSP may impose from time to time:as well as all non-routine deposits,connection fees,metering charges,installation costs or simllar amounts that are assessed by and payable to the MSP related to the purchase and installation of equipment necessary to establish or maintain electric service at the ESI ID,or other charges for equipment or services requested by Customer, "Emergency Interruptible Load Service(EILS)"Is defined in the ERGOT Protocols as a,special emergency service used during an EECP Step 3 or 4 to reduce Load and assist in maintaining or restoring ERCOT System frequency. "Energy"means elecfic energy. "ERCOT"means the Electric Reliability Council of Texas or any successor ISO. "ERCOT Protocols"means the ERGOT Protocols that set forth the procedures and processes used by ERGOT and the ERCOT market participants for the orderly functioning of the ERGOT system and market. "IESI ID(s)"means Electric Service Identifier as such term is defined by ERCOT. "Four Main Ancillary Services"means Regulation Service—Down,Regulation Service—Up,Responsive Reserve Service and Non-Spinning Reserve Service,all as defined by the ERGOT Protocols. 'Governing Jurisdictlon"means the State of Texas. "Holdover Rate"means;[(Metered Usage+line loss usage)x(the weighted average(weighted in accordance with Customer's zonal Metered Usage)of ERCOT's applicable zonal Market Gearing Price of Entergy as posted on its website + Uplifts +a NewEnergy administrative fee of$25/MWh)) + [(Dellvey Charges,Taxes and Replacement Reserve Service charges (as defined by the ERGOT Protocols) and any similar charges Imposed by ERCOT on purchases of energy from ERCOTs MCPS market,which will be passed through at cost)), 'Late Payment Charge"means 0%of the total dollar amount set forth on the invoice as due and payable from Customer. "Market Clearing Price of Energy"("MCPE")is the hlghesl price assoclated with a congestion zone for a settlement interval for balancing energy deployed during a settlement interval. Customer acknowledges that it understands that the MCPE varies every 15 minutes based solely on market conditions and that NewEnergy makes no guarantee,representation or promiselhat past MCPE prices are indicative of future MCPE prices. "Master Agreement"has the meaning given above; provided,however; that the terra Master Agreement shall also refer to the existing agreement between NewEnergy and Customer,whether It Is titled F-lectrtcity Supply Agreement or(Master Retail Energy Supply Agreement or the like. "Metered Usage"means,in the aggregate,all actual 15-minute Interval usage in the case of an interval data recorder(11)1 1 meter,and,In the case of a non-IDR meter,15 minute interval usage calculated by applying the applicable ERGOT load profile to monthly summary usage. "Notice Period" means the 5 day period following written notice from NewEnergy to Customer informing Customer of any amounts due under this Agreement. "Other Ancillary Services" means Replacement Reserve Service,Voltage Suppod, Blade Start Service, Reliability Must-Run Service, Out of Merit Capacity Service,Opt-Of-Merit Energy Service and Zonal Out-of-Medi Energy(Zonal OOME)Service,all as defined by the ERGOT Protocols,as well as charges for real-time revenue neutrality allocation,resource imbalance and local balancing energy(BE)service. 'Payment Date'means 45 days from the date of the invoice. j'PUCT"means public Utility Commission of Texas. "Remaining Anticipated Usage"means the amount of electricity(in kWh),as determined by the Non-Defaulting Party,that would have been used by each Account covered by the termination during the remaining term of this Agreement had A not been terminated early(the"Remaining Term". In making this determination the Non-Defaulting Party may(but is not required to) consider. (1) anticipated consistency with or deviallons from past electricity usage patterns,{it)variations in anticipated weather patterns,(iii)general economic conditions or conditions affecting the specific industry(ies) in which Customer operates,and/or(Iv)any other factors the Non-Defaulting Party deems appropriate. "TDSP" Transmission and Distribution Service Provider means an entity authorized by applicable Law to provide electrical transmission and distributions services within ERCOT. "Uplifts"means charges NewEnergy Is required by third parties to pay or Incur In order to serve Customer and therefore passes through to Customer without markup, including, but not limited to, Four Main Ancillary Services, Other Ancillary Services, ERCOT administrative fees, PUCT Credit Requirements,Renewable Energy Credit Charge,Congestion,Scheduling/Forecasting Charge,unaccounted for energy and line loss charges. PS2.1 Initial Term. With respect to each Account set forth M;reln,the term of this Priding Schedule shall commence on the"Start Date(s)'and and on the'End Date(s),'both as specified herein,unless extended upon the mutual written agreement of the parties or as otherwise provided in this Pricing Schedule. NewEnergy will use commercially reasonable efforts to begin service to the Accounts on the Start Date(s)set forth herein in the Account Schedule, but if NewEnergy is unable to enroll one or more of the Accounts by such date as a result of circumstances beyond NewEnergy's control (including Customer's failure to notify the Utility that if has selected NewEnergy as its supplier or any acts or omissions of the Utility),the Start Date will commence on the next regularly scheduled Utility meter read date in the month and year following successful enrollment of such Account(s). In this Circumstance,NewEnergy,in its discretion,will have the right,but not the obligation,upon written notice to Customer to extend the End Date to reflect the decay in the start of NewEnerg/s supplying electricity,to Customer. if NewEnergy is unable to commence service within 20 business days of the Start Date(s)set forth herein in the Account Schedule,NewEnergy will have the tight,in its discretion,to terminate this Pricing Schedule without penalty or prejudice upon written notice to Customer, P52.2 Invoicing and Payment Customer shall be billed for amounts due under this Pricing Schedule and the Master Agreement for each Account. 2007 All rights marvcd:Constellation NewEnergy,Inc. 2 PAGE 3/19'RCVD AT4i2412008 5:28;10 PM[Eastern Daylight Tlme]"SVR;RFx13RD-0MF-01A`DNIS:3553'CSID:5122187028"DURATION(MMs):13-18 04/25/2008 FRI 11:54 [TX/RX NO 51821 la007 Apr-25-2008 11 : 55 AM Constellation NewEnergy Inc . 7132227346 8/ 18 04/24/2008 15;32 FAX 51221870?" CORR PURCHASING 0 004 Pricing Schedule Customershali make payments to the following address: Constellation NewEnergy,Inc.,by regular mail to P.O.Box 840159,Dallas,Texas 75284-0159 or by overnight mail to Attn:Bank of America Lockbox Service,Constellation NewEnergy,Inc.Lockbox 6401%14Of Elm Street,5°1 Floor,Dallas,Texas 75202 Late payment charges may be included on a subsequent invoice and are payable on demand.NewEnergy reserves the rightto adjust its billing cycle from time to time.Customer acknowledges that NewEnergy's ability to,Invoice Customer is dependent on the Utilitys or ISO's abinty to furnish NewEnergy with all necessary information.In the absence of such information,NewEnergy shall have the right to Invoice Customer based on estimated meter readings or other estimated information. Customer's invoice will he adjusted the next billing cycle after which NewEnergy receives the actual consumption amount and other necessary information from the Utility or ISO,to reconcile any difference between estimated consumption and actual consumption or other matters. PS2.3 E_*6 Termination Payment.If one or more.of Customer's facilities which are receiving electricity supply hereunder are closed;vacated,sold, consolidated or otherwise disposed of,then Customer m ay,to the extent permitted by applicable taw,terminate this Pricing Schedule with respect to the corresponding Account(s)upon 30 days written notice to NewEnergy,in which event customer may be liable to make an early termination payment to NewEnergy under the applicable section of the Master Agreement Customer shall use reasonable efforts to provide NewEnergy prompt prior written notice(but In no event less than 30 days)by facsimile or electronic mail before any significant change in the anticipated usage of electricity for any facility receiving service under this Pricing Schedule, including without limitation changes due to equipment outages,plant or facility shutdowns,or changes in the operating hours of a facility. PS2.4 Certain Customer Acknowledgements and Warranties. (a) Customer acknowledges and agrees that (1) NewEnergy is not acting as Customer's Consultant or advisor for any purpose, and Customer will not construe or rely on any Information provided or statements made by Newi=nergy,including without limitation as to the advantages or disadvantages of any specific product or service,predictions about future energy prices, or any other statements or information,as advice or representations of any sort;and(2)Customer is making Its own decisions based solely upon its own analysis and the advice of its own advisors,If any,and is not relying on NewEnergy in any way In making its decision to enter into this Pricing Schedule or In making any other decision or taking any other action under this Pricing Schedule. (b)Customer warrants and represents that(1)Its aggregate peak demand during any 12 month period is greater than 50 kUowatla;and(2)the electricity supplied under this Agreement Is not for residential use. . PS25 NewEnergy and Utility Contact.Information. Customer may contact NewEnergy regarding its invoice or other matters concerning this (Agreement at NewEnergy�s Customer Service Department by boll-free telephone at 888-635-0827 or At Constellation NewEnergy Inc., 1221 Lamar Street,Suite 750,Houston,Texas 77010. CUSTOMER AGREES TO C0N7'ACT ITS UTILITY IN THE EVENT OFA POWER OUTAGE OR OTHER R-ECTRICITYRELATED EMF-RGF_NCYAT THE FOLLOWING TELEPHONE NUMBERS utility Emergency Service Center 800-n2-7143 Same OncorbactrieDemiweryCompany 6B8-313.4747 0WiM862 (W Electric Delivary) AEP 866.2234508 877473.4868 Texas Nave MexW PbWer 88N66-7456 Same We= 381 87--2581 Some Sharytend 956-668-4551 950887-5600 PS2.6 Disconnection. Pursuant to PUCT regulations,all recall electric providers are allowed to disconnect customers for non-payment or K no service contract is In effect, Notwithstanding anything in this Agreernent to the contrary, Customer acknowledges that in addition to the rights set forth in Customer's Agreement, NewEnergy shalt be entitled to disconnect Customer's service for non-payment or no-contract to the extent allowed by law. Customer holds NewEnergy harmless for any interruptions or disruptions of service initiated by the TDSP. Customer shall reimburse NewEnergy for any costs incurred by NewEnergy or passed through to NewEnergy by the TDSP for reinstatement of service. PS27 Substitution. in the event Customer sells or otherwise disposes of a facillty to which NewEnergy supplies Energy ("Original Facility"), Customer may substitute another facility("Substitute Facility')for the Origihal Facility:provided,(a)the Substitute Fdcifity is owned by Customer,(b) Customer gives NewEnergy sixty(60)days advance written notice of its intent to do so;(c)there is no Event of Default;(d)the substitution can be made on the same day(or within a reasonable time frame to be determined solely by NewEnergy);(e)NewEnergy can legally supply and serve the Substitute Facility;and(f)the Subst)tute f=acility has-similar load and usage profiles(to be determined solely by New Energy)as compared to the Original Facility. Should such substitution be made,the Substitute Facility will be governed by this Agreement P82,8 Waivers.Customer has voluntarily agreed that the PUG'T's Customer Protection Rules,16 TEX.ADMIN.CODE Subchapter R,§§25.471,et seq. (the"Customer Protection Rules"), are waived to the extent;glowed by law and shall not apply to this Agreement. AFTER CONSULTING WITH AN ATTORNEY OF CUSTOMER'S OWN SELECTION, CUSTOMER VOLUNTARILY WANES ITS RIGHTS,IF ANY,UNDER THE TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT,§§ 17.41 ET SEQ., TEXAS BUSINESS & COMMERCE CODE("DTPA', A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. P82.9 Payments to Certain Third-Parties:Customer acknowledges and understands that: o NewEnergy is making a payment to CUP Solutions,LLC In connection with its efforts to facilitate Customer and NewEnergy entering into this Agreement;and ©2007 All rights reserved:CQrWten2fIDn NewEnergy,Inc. 3 PAGE 4119•RCVD AT 4124/2008 5:26:10 PM[Eastern Daylight Timel•avR:RFXBkb.omF•01r7•DNIS:3653•CS1D:5122187028*DURATION(mmss):13-18 04/25/2008 FRI 11:54 [TX/RX NO 51821 fa008 Apr-25-2008 11 : 56 AM Constellation NewEnergy Inc . 7132227346 9/ 18 04/24/2008 15:33 FAX 51221870 CORR PURCHASING 0005 Pricing Schedule o the NewEnergy Electricity Charge reflects the fee paid to CGP Solutions,LLC o GGP Solugons, LLC Is acting on Customer's behalf as its representative and Is not a representative or agent of NewEnergy. o Customer should direct any questions r(Qarding such fee to CGP Solutions,LLC Customer Billing Address: Constellation NewEnorgy Paynient Address: City of Round Rook Constellation NewEnergy,Inc. 221 E.Main Street P.O.Box 840159 Round Rock,TX 78664 Dallas,TX 75284-0159 Phone:5122186682 Phone:1 (888)635-0827 Fax:5122187028 Fax:(713)222-7347- ATTN: Linda Borden Email:ixcustomercare@constellation.com Emat:lboiden round=rock.tx-us Customer Notice Address: Constellation NewEnergi Notice Address: City of Round Rock Constellation NewEnergy, Inc, 221 E. Main Street 1221 Lamar St:Suite 750 Round Rock TX 78664 Houston,Texas 77010 Phone:6122186682 Phone:(713)222-6080 Fax:5122187028 Fax: 1-888-232.9800 ATTN; Linda Borden ATTN:Legal Department Email: Iborden@round-rocktx.us BDM:Sam Mele Please return an executed copy of this Pricing Schedule by facsimile to NewEnergy at 1.888-232-9800. A fully executed copy will be returned foryour file. City of Round R Constellation NewEner2y,Inc. By.- UY Name: ( Name: .A.Ruff6r We Gsoutaphic Still= idle: r Tito ' Date: Date: APR NewEnergy shall have no obligation to enroll or supply electricity to any account(s)that are not Identified on the Account Schedule below. Therefore,before you sign,please verify that your specific information Is COMPLETE and ACCURATE- Your CCURATEYour review and acceptance of this information will help ensure accurate future invoices. ESI ID Account Schedule:193 LSIID(s) Suppiy Term Emergency Congestion Meter ESI IDR) Service Address Start Datelt) End Datetl> zone Voltage Contact c�) 131 Type NameMumbers 1-10443720007090610 1040 COUMY ROAD ,ROUND 6f4012008 6114!2010 SOUTH NON S Rand Backer RCCK 7X786262 8 IDR 5122183235 2-10443720003392026 (UiANDLER RD.ROUND ROCK5 008 6/10!2010 SOUTH NON- S Rand BMW TX 78664 1IDR 612283285 3-10443720009997482 8L1NWY 81 N,ROUND ROCK,TX 6/11/2008 6/14/2010 1 SOUTH NON. S Randy Darker ©2007 All rights rasmad:Constellatlon NewEnergy,Inc. 4 PACE 5114`FtcVD AT 4124/2008 5:28:10 PM[Eastem Daylight Time]"SVR:RFX8RD-OMF-01/7"DNI5:3653-CSID:5122187028'DURATION(mmas):13-18 04/25/2008 FRI 11:54 [TX/RX NO 51821 x]009 Apr-25-2008 11 : 56 AM Constellation NewEnergy Inc . 7132227346 10/ 18 04/24/2008 15:34 FAX 5].22].870"" CORR PURCHASING Im00B Pricing Schedule ESI ID Account Schedule:193 ES110(s) I Te rg mY uPA y � Congestion Meter F.mc e ESI IDM Service Address Start Date(') End Deters) Voltage Contact tat c1 Zone Type NameMumbers 78664 IDR 5122183295 410445720003351644 601 JEFFREY WAY,ROUND ROCK, 611212008 6/1512010 Som IDR S Randy Barkan TX78664 5122183295 54493720003398257 3151 N INTERSTATE 35,ROUND 6/1012048 611412010 SOUTH NON- S Randy Barker ROCK,7X78664 IDR 5122163295 6.10443720(103398350 MCNEILPARKTNNSCRT,ROUND' 611m00H 6114 10 SOUTH NON- S Barker ROCK,7X78664 1011 511 22183285 7-10443720003398381 MCNENLPARK BATH ROOM.ROUND 611017008 6/1412010 SOUTH NON- S Randy Barker ROCK,TX 78664 IDR 5122183295 8.10443720003396753 @WATER WORKS W.H.,ROUND 6/10/2008 6/1412010 GOUTH NON- S Randy Barker ROCK,TX78664 IDR 5122183295 9.10443720003399218 @TOWER-RABBITTHILL,ROUND 8/1012008 6/14/2010 SOUTH NON- S, Rudy8orker ROCK,TX 78664 IDR 5122183295 10-10443720003402318 (AFM 1431,ROUND ROCK,TX 78864 8/11/2008 6114/2010 SOUTH{ ON-IDRS Rn 21 Bark95 11-10443720OD3402845 @ROUND CKTX778 64' 6116/1008 6/17/2010 SOUTH IDR 3 Randy1 95 221 E MAIN STE A.ROUND ROCK, NOW Randy Barker 12x10443720003403527 TX 78664 611812008 6/21/2010 SOUTH IDR S 5122183295 13-1044372000340365B 00211 E Main Ste B,Round Rock,TX g/1812D08 612112010 SOUTH NON- S Randy Barker 78664 IDR 5122163295 14-10443720003403620 111 LAMPASAS,ROUND ROCK,TXfi11812008 6/21(2010 SOUTH NON- S Randy Barker 76684 IDR 5122183295 15.10443720003403775 201 E MAIN ALY,ROUND ROCK,T% 511812006 6/21/2010 SOUTH NON- S Reedy Barker 78664 IDR 5122183295 202 E MAIN ALY,ROUND ROCK,TX NON- Randy Barker 16-10443720003405375 78664 6/1812008 6/21/2010 SOUTH IDR S 5122183295 17-10443720DO3408394 4815PRINGSTWELL 7.ROUND 6118(1008 6/2112010 SOUTH NON• S Randy Barker ROCK,TK 78654 IDR 5122183295 18-104437201103408642 )VETERANS PARK,ROUND ROCK, X18 008 (1/2112010 SOUTH NON` S Randy Backer TX 78660 IDR 5122183295 19.10443720D03408673 @SPRING&PECAN,ROUND ROCK6/1811008 6/2112010 S0 NON- S Randy Balker T3f76684 IDR 5122183295 2¢-10443720003410316 @MAINWELL,ROUND ROCK,TX 6/1812008 612112010 SOUTH IDR 5 RandyEalker 78664 5122183295 21-10443720003418523 -@G5ORGrtOWN ST LIFT;ROUND 6/1812008 6/21/2016 SOUTH NON- 5 RandyWer ROCK TX 78664 IDR 5122183295 �DFIRE STATION ROUND ROCK,TX NON- RaridyBarker 22-10443720003430931 78654 6/ 18/2908 6!21/1010 IDR S 5122183295 120 S BROWN ST ROUND ROCK NON- Rady Be&" 2T40443720003a31644 TX 78W4 6/1612008 6/212010 SouTH 1OR S 6122183295 @CHISHOLM TRAIL ROCK,ROUND NON- Randy Balker 2410443720003433535 ROCK 7X78664 6/9/2008 6/10/2010 SOUTH IDR S 5122183295 25-10443720003434602 @BRENT BUSTIN PARK,ROUND 6!8/2008 61OD10 SOUTH NON- S Randy Barker ROCK,TX 78684 IDR 5122183295 @MEMORIAL PK&SUMMIT, NON- Randy Barker 26-10443720003435612 ROUND ROCK,TX 78864 6/18/2006 8111lZ010 SOUTH IDR 5 5122183295 27-10443720003435643 @LEGION PARK,ROUND ROCK,TX 6/18008B1Z1C1010 3011TH NONL S Ran Barker 611B 78664 [DR 5122183295 @WATER LEVEL CONTROL, NON- Ran Barker 28-104437200113437937 ROUND ROCK,7X78864 6/18/2008 6/2112010 SOUTH IDR 3 5122183295 29-10443720003443269 @SE ELEVATED TANK,ROUND 6/1811008 612112010 SOUTH NOW S RendyBarker ROCK 7X78684 IDR 5122183295 30.10443720003443362 @LOT231RRIGATION,ROUND 6116!2008 6/1712010 SOUTHNON• S Rand Barker ROCK,7X78664 IDR 5122183295 31-10443720003448539 1000 SW-THCREEKDR,ROUND 611712008 Ml/2010 SOUTH NON- S RandyBarker ROCK,TX 78664 IDR 5122183295 32-10443720003461554 505 E BOWMAN DR,ROUND ROCK 6I1712008 6/1512010 SOUTH NON- S Randy Badu 7X78864 IDR 5122183285 © 200T All rights rawrved:Constallatton NewEnergy,Ino. 5 PAGE 6119'RCVD AT412412008 5:28:10 PM(Eastern DayllgrttTlme]'SVR:RFXBRD-OMF-0117"DNIS:3653'C511):$122187028'DURATION(mm-ss):13-18 04/25/2008 FRI 11:54 [TX/RX NO 51821 U010 Apr-25-2008 11 : 57 AM Constellation NewEnergy Inc . 7132227346 11/18 04/24/2008 15:34 FAX 512218709° CORR PURCHASING 1aD07 Pricing Schodule ESI ID Account Saedule:193 ES110(s) Supply Term Sriidrgency SSI IDI?] Ser ilce Address Start tater) End Date(1) COnges6otl Meter Zone Type Voltage Contact (3) M NamelNumbers 38-10443720003466787 @STELLA PARK,ROUND ROCK,TK 6112/2008 6/151201D SOUTH NOW S Randy Barker 78654 (OR 5122163295 34-1044372000347036 23D56MAYS ST,ROUNDROCK,TX 6/19/2008 6!22!2010 SOUTH NON- S RandyBarker 78664 IDR 5122183295 35.10443720003486731 800 DEERFOOT,ROUND ROCK,TX 6/1812008 8!2912010 SOUTH NOW S Randy Barker 78664 IDR 5122183295 36-10443720003965762 LAK1:CREEK POOL,ROUND ROCK, 6/1812008 61212010 SOUTH NON. S Randy Barker TX 78664 IDR 6922183285 900 3 MAYS BUCK EGGAR BSBLL NON Rendy Barker 37-10443720003498759 FLO A.ROUND ROCK,TX78664 WIN= 61x112010 SOUTH IDR S 5122183295 38-1044372000MM83 900 S MAYS BUCK EGGAR MILL 6/1812008 6/212010 SOUTH NON- S Randy Barker FLD B,ROUND ROCK,TX78664 IDR 5122183295 39411443720003542500 1300 SUNRISE RD REAR,ROUND 6111/2008 6/142010 SOUTH NON- S Randy Barker ROCK,7X78564 )DR 6122183285 0-10443720003560692 1927 NICOLE GRHL PRK,ROUND 6/1212008 6/1512010 SOUTH NON- S Randy Barker ROCK,TX 78664 IDR 5122183295 605ETAYLORAVESTE G ROUND NON• Randy Barker 41-10443720003561968 ROCK 7X 78864' 6/702008 6/14!2010 SOUTH ®R S 5122183295 605 E TAYLOR AVE STE 8'ROUND NON* S Randy Barker 42-10443720009582025 ROCK,TX 78684 6/102008 6/14/2010 SOUTH IDR 5122183295 4340443720008582397 1121 PALM VALLEY TRAFFIC LI 6/1012008 6/14/2010 SOUTH NON. S Randy Barker BLVD.ROUND ROCK,TX 78664 IDR 5122183295 44-10443720003586179 QCOR0193BALLFIELD,ROUND 6/11/2008 6/142010 SOUTH NON' S Randy Barker ROCK,TX 78664 [DR 5122163295 45-104437211003588210 CO RD 113 BALLFIELDCONS 6/412008 6/14/2010 SOUTH NON. S RarrdyBarker STAND,ROUND ROCK,TX 78664 [DR 5122163205 3000 PALM VAU-EY PARK PARK NON Randy Barker 4610443720003586241 1&2 ROUND ROCK,7X78664 6/112008 6!1412010 SOUTH IDR S 5122183295 47-10443720003609212 @OASTARK PARK,ROUND ROCK, 6111/2008 6114/2010 SOUTH NON- 6 Randy BMW TX78664 tDR 3122188296 1904 OXFORD BLVD A PARK, NON- Randy Barker 4$1044372DOU3684294 ROUND ROCK TX 78684 6/182008 6/21/2010 SOUTH IDR S 5122188295 49-10443720003788366 1904 OXFORD BLVD B.ROUND 81182008 612112010 SOUTH NON- S Randy Barker ROCK,TX 78664 IDR 5122183295 1331 TREY ST,ROUND ROCK,TX NOW Randy Barker 50-90M14372D003803272 76664 8/19/2008 6!2212010 SOUTH OR S 5122183295 5140443720003826508 QSE BOOSTER STATION,ROUND 6/17/2008 61212010 SOUTH IDR 8 Randy Barker ROCK,TX 78664 5122183295 9000 SOUTH CRW DR,ROUND NON• Randy Barker 52-10443720003826940 ROCK,TX78664 6117/2008 6121/2010 SOUTH IDR S 5122183295 5310443720003980654 @SAM BASS&CHISHOLm1,ROUND 8!912008 611012/110 $01n}{ NON- S Randy Bark" ROCK,TX 78664 _ IDR 5122183295 6440443720003985079 1448 DAVID CURRY DR,ROUND 6/11/2006 6/1412010 SOUTH NON. S Randy Bade ROCK,TX 78664 IDR 5122183295 2006 ENTERPRISE DR,ROUND NOW Randy Backer 55-10443720009999992 ROCK,TX 78664 6112/2008 6!1612010 SOUTH [DR S 5122183295 56-10443720003699223 2009 ENTERPRISE OR A,ROUND 6/17/2008 8/1512010 SOUTH NON- S Randy Barker ROCK;TX78684 IDR $172183285 57-1044372000390502 2015 LANIAR DR STE A.ROUND 6/1?12008 81i5R010 SOUTH NON- S Randy Barker ROCK.7X78664 IDR 5122183295 2015 LAMAR DR,ROUND ROCK,TX NOW Randy Barker 58-10443720003999584 78864 6/12/2008 611512010 SOUTH IDR S 5122183295 69-10443720004417976 QSTREET LIGHTS STLG 5,ROUND 8/11/200B 8!14!2010 SOUTH NON- S Rend Backe` ROCK TX 78864 IDR 5122183295 8040443720004418007 @STREET LIGHTS STLG 7,ROUND 6/112008 611412010 SOUTH IDR s 61221=5 BBarker ROCK TX 78664 61404437201104418038 ®STREET LIGHTS STLG 4,ROLM 6/11/2008 6/142010 SOUTH NON- S Rand Balkrx ROCK,TX 78664 IDR 5122183295 6240443720004418089 @STREET LIGHTS BTLO 6,ROUND 611120N 6/14/2010 SOUTH NOW S Randy Barker ©2007AN rights reserved:Constellation NewEnergy,Inc. 6 PAGE 7119"RCVD AT 412412008 5:28:10 PM FEastern Daylight Time]"SVR:RFXBRD-OMF•01rr-DNIS:3653'CSID:5122187628'DURATION(mm-ss):113.18 04/25/2008 FRI 11:54 [TX/RX NO 51821 0 011 Apr-25-2008 11 : 58 AM Constellation NewEnergy Inc . 7132227346 12/ 18 04/24/2008 15:35 FAX 51221870 CORR PCR2CRASZNG DOS Pricing Schedule ESI ID Account Schedule:493 ESUD(s) Supply Term Emergency ESI 1DI4 Service Address Start Date(i) End Date(l) Congestion Meter Voltage Contact (3)9 ) Zone Type Narne/Numbers ROCK,TX 78664 - IDR 5122183295 6340443720005007222 @GASTARKPARKGRDL,ROUND •811112008 6/14/2010 SOUTH NON- S Randy Barker ROCK,7X78664 IDR 6172183295 6410448720005038656 @NEIGHBORHOOD CENTER ROCK GRDL. 6/18/2008 6121/201tl SOUTH NOIR S RandyBBNker ROUND SDR 5122183295 10DO SOUTHCREEK DR GRDL NON- Randy Barker 65.1044372DD06048576 ROUND ROCK'TX78W4 6117/2008 6/21/2010 SOUTH IDR S 5122183295 @STELLA PARK GRDL ROUND NON" Randy Barker 6610443720006053443 ROCK TX 76694 6/128008 6/1501G SOUTH IDR 5 5122183295 221 E MAIN GRDL 1,ROUND ROCK NON- Randy Barker 67-10443720005058589 •.(78664 6/1812008 6/21/2010 SOUTH IDR S 5122183295 68-10443720005056620 221 E MAIN GRI]tZ ROUND ROCK, 6/1812008 U21/2010 SOUTH NON- S Randy Barker TX 78684 IDR 5122183295 6940443720005077437 TOWER STREET PUMP GRDL 6/18/2008 612112010 SOUTH NON- S Randy Barker ROUND ROCK,TX 78664 IDR 5122183295 QCO RD 115&SAUNDERS GRDL, NON Randy Backer 7810443720005176575 ROUND ROCK,TX 78664 8/1112008 6114(2010 SOUTH IDR S 5122183295 71-10443720005184573 @SPRING&PECAN GRDL ROUND 611812008 6/21/20]0 SOUTH NON- S Randy Barker ROCK,TX78664 IDR 6122183295 72.1044372000519533D @LAKE CREEK PARKORDL2, 611812008 6/2112010 SOUTH NON- S Raady@atkar ROUND ROCK TX 78664 IDR 6122183295 73-10443720005195361 @ AKEEND EEK PP TX 70664 1, 6/18/2008 6/2112010 SOUTH NO 3 RandyBarkar r 83295 3000 PALM VALLEY BLVD GRDL NON- Randy Barker 7410443720005259289 6111/2008 6/14/2010 SOUTH S PRKA,ROUND ROCK,7X78664 IDR 5122183285 7540443720005266289 @SOUTHCREEKaREDVANGGROL, 6/17/2008 612U2010 SOU11-I NON- S Randy Barker ROUND ROCK,TX 78664 IDR 6122183295 78-10443720005285788 @13RENTBUSTINPARKGRDL, 6/611oo6 6/9/2010 SOUTH NON- S Randy Barker ROUND ROCK,TX 18664 IDR 6122183295 77-1044372DO06001327 @STREET LIGHTS STL41,ROUND 611112008 6/1412010 SOUTH NON 6 Randy Barker ROCK,TX78664 IDR 5122183295 7810443720006054802 @SHOP AT WATER TREATMENT 61102008 8/142010 SOUTH ]DR S RandyBadkar PLA,ROUND ROCK TX 76664 IDR 5122183295 50512 PALM VALLEY BLVD NON- Randy Barker 79-10443720006261267 ROUND ROCK,TX 78664 � 6/10/2008 6114120]0 SOUTH IDR S 5122189295 80-10443720006318543 3000 PALM VALLEY BLVD PARK 6111/2008 811412010 SOUTH NON- S Randy Barker ROUND ROCK,TX 78664 [DR 5122183295 81-10443720003400359 605 PALM VALLEY BIND,ROUND 8/1012008 6114/2010 SOUTH NON- 3 Randy Owker ROCK TX 78664 IDR 5122183295 82-10443720008428388 2503 HIGH COUNTRY BLVD. 8/13/2008 6/16/2010 SOUTH NOW S Randy Barter ROUND ROCK,TX 78664 IDR 51221 6 3 295 1901 GATTIS SCHOOL RD,ROUND NON. Randy Barker 8310443720006435704 ROCKTX78664 6/18/2008 6/2112010 5011TH IDR S 5122183295 84-10443720006476526 3000 PALM VALLEY BLVD PARK A 6/11/2006 6/14/2010 SOUTH NON- S Randy Barker ROUND ROCK,TX 78664 IDR 5122183295 85-10443720006476557 3000 PALM VALLEY PARK 8 a,: 6/11/2008 6/1411010 SOUTH NON- S Randy Barker ROUND ROCK TX 78664 IDR 5122183295 300 S BURNET ST,ROUND ROCK, NON Rendygatker 8610443720006493302 TX78684 6/18/2008 6/21/2010 SOUTH IDR S 5122183295 3559 FOREST CREEK DR,ROUND 87-10443720006538526 ROCKTX7866d 6/1312008 6/16/2010 SOUTH NPR S 22183295 3725 ROYAL PORTRUSH DR, NON- Randy Barker 88-10443720006552941 ROUND ROCK TX 78664 6/1312008 6110010 SOUTH IDR S .5122183295 89.10443720006581838 1790 W FM 3406 ROUND ROCK 1X NON $ Randy Barker 8111/1006 61142010 SOUTH IDR 5 1221 8 32 9 5 90-10443720006683859 5200 N INTERSTATE HIGHWAY 35, NON- Randy Barker ROUND ROCK,TX 78664 8/1012008 6/1412010 SOUTH IDR S 5122183295 91-10443720008898480 3798 GATTIS SCHOOL RD, IDR ROUND 612010 som NON6/13/2008 6/1 S 8andyrker 3295 ROCK,TX78664 - 122183 ©2001 All rights reserved:Constellation NewEnergy,Inc. 7 PAGE 8119"RCVD AT 4r2412008 5:28:10 PM[Eastern Daylight Tlme]"SVR:RFXBRD-OMF-0117"DNI3:3653"CSID:5122187028'DURATION(mm-ss):13.15 04/25/2008 FRI 11:54 ITX/RX NO 51821 1@012 Apr-25-2008 11 : 58 AM Constellation NewEnergy Inc . 7132227346 13/18 04/24/2008 15:35 VAX 512218709' CORR PURCHASING 1@009 Pricing schedule ESI ID Account Schedule:193 ESIID(s) Supply Term Can t;stion MeterEmergency E31 10(2) Service Address Start Wei') End Date() Zane Type Voltage Contact (3) (3) NarrlelNumbers 3701 GATTIS SCHOOL RD /{ NON Randy Badw 92.10443720006598491 ROUND ROCK.TX78664 811300B 6!1612010 IDR 8 5122183295 93-10443720006741879 SUNRISE RD,ROUND ROGK TX 6/12/2008 6/1512010 SOUTH NON S Randy Bf+W 78664 IDR 6122183296 94-10443720006790716 330D E PALM VALLEY BLVD YARD, 6/1112008 6114!2010 SOUTH NON, S Randy Barker ROUND ROCK TX 78864 IDR 5122183295 2901 SEffLEMENT OR,ROUND NON- Randy Barker 05-10443720006790964 ROCK 6!9/2008 6110f2010 SOUTH IDR S 5122183295 751 DOUBLE CREEK DR,ROUND NON- Randy Darker 96-104437200068(lk326 ROOK TX 78684 6117/2= 612111Ef1D SOUTTi ]OR S 5122163295 212 COMMERCE BLVD.ROUND NOW Randy Barker 97-10443720006806402 ROCK,TX78864 6!12/2008 6/1512010 SOUTH IDR 5 51221832.95 9840443720006806707 601 N LEE ST,ROUND ROCK TX 61=008 6121/2010 SOUTH NON'S Randy Barker 78684 IDR 5122183295 99.10443720008952164 1919112 N MAYS ST,ROUND ROCK, 01212008 611612010 SOUTH NON- S RandyBarker TX 78654 IDR 5122183295 1oD-10443720006976654 301 W BAGDAD ACTIVITY CTR, 6/1812008 8!2112010 SOUTH NOW S Rindy fttkor ROUND ROCK TX78654 IDR 5122183295 1011D443720007013B8b 100112 E OLD SETTLERS BLVD, 6111/2008 611412010 SOUTH NON- S Randy Barker ROUND ROCK TX78664 ]DR 5122183295 102-10443720007135152 400112 ROUND ROCK AVE 1, SH81= 6121/2010 SOUTH NON- S Randy Barker ROUND ROCK TX78W4 ]DR 5122183295 9300 GATTIS SCHOOL RD,ROUND NON- Randy Barker 10310443720007199446 ROCK TX 78664 E/1712008 11121/2010 SOUTH IDR S 5122183295 1101 GATTIS SCHOOL RD,ROUND NON- Randy Parka 104-10443720007276109 ROCK,TX 78664 6/1812008 8/2112010 SOUTH IDR S 5122183295 16510443720007316383 1401 DAVID CURRY DR,ROUND 6111/2006 6/1412010 SOUTH NON- S RandyBerker ROCK TX 78684 IDR 5122183295 1295 COUNTY ROAD 117,ROUND NON- Randy Barter t0610443720D07478668 ROCKTX78664 611112008 6/1412010 SOUTH [OR S 5122183295 2259 FOREST CREEK DR,ROUND NON Randy Barrer 107-10443720007488816 ROCK;TX78664 61161200& 6117/2010 SOUTH IDR S 5122183295 BEHIND WESTINGHOUSE NW WATR NON Randy Barker 108-10443720007557465 TRF AT,ROUND ROCK,TX 78664 6/1Q120Q8 6!1412010 SOUTH IDR S 5122183295 1901 SUNRISE RO STLG ROUND NON Randy Barker 108-10443720007589555 ROCK TX 78664 6!1212008 6/15/2010 SOUTH IDR S 5122183295 110-10443720007569698 3401 FOREST CREEK DR,ROUND 6/13/2008 611612010 SOUTH NON- 8 Randy Barker ROCK,TX 78664 IDR 5122183295 111-10443720007577925 1910 MESA PARK ORSGNL,ROUND 611772008- 511512010 SOUTH NOW S Randy Barker ROCK,TX 78654 [OR 5122183295 1503 E OLD SETTLERS DR ROUND NON- Randy Barker 112.10443720007660328 ROCKTX78664 6111/2008 6/1412010 SOUTH IDR S 5122183295 1798 DOUBLE CREEK DR,ROUND NO Randy Barker 11310443720007670403 ROCK,TX78664 6/t7/20Q8 6!2112010 -IDR S 6=183295 2902 GATTIS SCHOOL RD,ROUND NON Randy Barter 114.10443720007670434 ROCK TX78664 6/17!2008 6!2112010 SOUTH ]DR S 5122183295 115.10443720007776139 BETNNDWESTINGHOUSE NW, 8/1612008 6/17/2010 SOUTH IDR S Randy Barker ROUND ROCK TX 78684 5122183295 116-IMQ720007875964 298 UNIVERSITY BLVD SGML LIGHT, 6/1012008 6/14/2010 SOUTH NOW S Randy Barker ROUND ROCK,TX 78664 IDR 5122183295 117-10443720007924231 203 COMMERCE BLVD UNITA, 6/12/2008 V1512010 SOUTH NON- S Randy Barker ROUND ROCK,TX 78664 IDR 5122183245 901 LUTHER PETERSON NEAR BUS NON- S Randy Barker 11810443720007927326 ROUND ROCK,TX78564 6110/2008 6M412010 SOUTH IDR 5122183295 119.10443720007959380 3814 TREVINO,ROUND ROCK,TX 6113/2008 6/1612010 SOUTHNON- S Randy Baker 78664 IDR 5122183295 3300 E PAULA VALLEY BLVD EAST NON- Randy Barker 120 i04437200p80?104d WRY,ROUND ROCK TX 70664 8111/2008 8/1412010 SOUTH IDR 5 5122183295 12140443720008256329 210D GATTIS SCHOOL RD,ROUND 6/17/2008 6/21/2010 SOUTH NOW S Randy Barker ©2007 All rights;resanrad:Cohstellatfon NawEnwW,Inc- $ PAGE 9119"RCVD A7 4/241Y008 5:28:10 PM[Eastern Dayl[Uht Time)*SVR:RFXSKD-OMF-01f7'DNIS:3653'GSID:5122187028"DURATION(mmss):13-18 04/25/2008 FRI 11:54 [TX/RX NO 51821 0 013 Apr-25-2008 11 : 59 AM Constellation NewEnergy Inc . 7132227346 14/ 18 04/24/2008 15:36 FAX 51221870 CORR PURCHASING [A 010 Pricing Schedule 1=31 ID Account Schedule:193 ESHEI(s) ESl IDM Service Address Start Date(P1Y TermCongestionWet') Congestion Meter Voltage gconnttact y t1) 01 Zone Type NamolNumbers ROCK,TX78664 IDR 5122163295 12240443720008268982 200 W BAGDAD AVE,ROUND 6/18!2008 6121/2010 SOUTH NOW S Randy Barker ROCK TX786M 1DR 5122183295 2119 HILTON HEAD DR,ROUND NON- Rawly Barker 1231044372000&328931 ROCK,TX78W 6/13!2008 6!1612010 SOUTH IDR S 5122183295 12440443720008379373 1600GAT11SSCk1001.RD REAR6/1712008 6/21!2010 SOUTH NON- S Randy&r%er ROUNDROCK TX 78664 IDR 5122183295 400 AW GRIMES BLVD PERM, NON- Randy Barker 12510443>20008420882 ROUND ROCK T)(78664 6110/2008 8!1412010 SOUTH IDR S $122183295 490 N A W GRIMES BLVD UNIT B. NON. Randy Barger 128-1044372000$458268 ROUND ROCK,TX78664 6110!2008 6/1412010 SOUTH IDR S 5122183285 216 E MAIN AVE,ROUND ROCK,TX NON- Randy Barker 127 10443720008506840 78684 6118!2006 6121/2010 SOUTH IDR $ 5122153285 2400 GREENLAWN BLVD SGNL NON- Randy Badder 12810463720008587848 ROUND ROCK,TX78664. 611912008 6122@016 SOUTHNON 5122183295 3113 N A W GRIMES BLVD ROUND NON- Randy Barker 129-10443720008634658 ROCISTX76664 6111/2008 611412010 SOUTH IN S 5122183295 130-10443720008651615 1343 REDBUD LN A,ROUND ROGK, 6/11/2008 8114/2010 SOUTH NON- s Randy Barker 7X7866a IDR 5122183295 131-10443720008811565 00104 S Lampa&m St,Round Rock, 6118/2005 01010 SOUTH NON• S Randy Balker TX 78664 IDR 5122183295 3222 BAY HILL LN,ROUND ROC!( NON- Randy Barker 132.10443720008812035 .78664 8113/2008 6!16!2010 SOUTH IDR S 5122183295 135-10443720008878551-10443720078551 00504 UnNer*Bldv,Rotund Rock, 6/10/2008 6/14/2010 SOUTH NO S Randy Barker TX 78664 IDR 5122183295 134-10443720008910M 3621 CARNOUSTY CV,ROUND 6/13/2008 6116/2010 SOUTH NOW g Randy Barker ROCK TX 78564 IDR __ 5122183295 1500 GATTIS SCHOOL RD,ROUND NON Randy Barker 13510443720008919977 ROCK,TX 78664 6/17/2008 6!2112010 SOUTH IDR S 5122183295 00301 W Bagdad Ave Odk,Round NON Randy Backer 138-10443720009021879 Rod(,TX 78664 6/1812008 6/21/2010 SOUTH IDR S 5122183295 6494 N INTERSTATE HIGHWAY 35 NON- Randy@arker 137-!0443720009148416 ROUND ROCK TX78664 � �1�� W14/2010 SOUTH IDR S 5122183295 138.10443720009196267 3300 PALM VALLEY BLVD TEMP, 6/11/2008. 6!1412010 SOUTH NON- S Randy Barker ROUND ROCK,TX 78664IDR 6122183295 35 N OF PALOMA 2831328 5050, NON- Randy Barker139.10493720099244840 ROUND ROCK,TX 78664 6/10/2008 6114/2010 SOUTH lDR S 5122183245 35 S OF CHANDLER 2831332 43, 6/10/2008 6/1412010 SOUTH NOW S Rand Bather 140.10443720009246639 ROUND ROCK,TX 78664 IDR 5122183295 141-10443720D092469D3 35 S OF 44011135,ROUND ROCK 6/1012006 6/1472010 SOUTH NOW S Randy Barker Tx7W OR 6122183295 142-10443720009466848 300ELIBERTY ST,ROUND ROCK 611812006 6/212010 SOUTH NON- S RandyBedker TX 78664 IDR 5122183295 2751 HIGH COUNTRY BLVD, NON- Randy Barker 149.10443720009590497 ROUND ROCK TX 76884 6/1312008 6!1612010 SOUTH IDR S 5122183295 AW GRIMES LOUIS HENNA BLVD, 144 10443720009920812 ROUND ROCK,TX 78864 6h90200$ 6/2712010 SOUTH NON- S 5122183 g5 145-10443720009964DB8 301 W BAGDAD AVE,ROUND 6/1812008 6/21/2010 SOUTH NON S Randy Barker ROCK;TX 78664 IOR 51221832.95 2108 PALM VAUEY BLVD,ROUND Nor* Randy Barker 146-10443720003589341 ROCK.TX78665 6/10/2008 611412010 SOUTH IDR S 5122183295 147-IOM72OM60RMS 3300 PALM VALLEY,ROUND ROCK, 61111.2008 6/14)2010SOUTH NON- S Randy Barkor TX78665 IDR 5122183295 146.10443720006263308 3000 PALM VALLEY PARK,ROUND NON- Randy Barker ROCK TX 78665 6111/2008 6/1401010 SOUTH IDR S 5/22183295 3300 PALM VALLEY BLVD# t, 148.10443720006721028 6111/2008 6/14/2010 SOUTH NOW S Randy Harker ROUND ROCK TX 78665---T IDR 5122183295 150-10443720006730235 3300 PALM VALLEY BLVD j9 2, NON- Randy Barker ROUND ROCK TX78HS 6!11/2008 6114!2010 SOUTH IDR S 5122183295 ©2007 All ristds reserved:Constellation NewEnergy,Inc. 9 PAGE 10119'RCVD AT 4124/2008 5:28:10 PM[Eastern Dayllght Tlme)"SVR:RFXBRD-OMF-C1A7`DNIS:3853"CSID:5122187D28"DURATION tmm-ss):13-18 04/25/2008 FRI 11:54 tTX/RX NO 51821 0 014 Apr-25-2008 11 : 59 AM Constellation NewEnergy Inc . 7132227346 15/ 18 04/24/2008 15:36 FAX 512218700" CORR PURCHASING 44011 Pricing Schedule ES[ID AccourltSchedule:193 ESIID(s) Supply ESI 100) Service Address Start ate(') TE d Zone Type Date(') Congestion Meter Voltage Emergency t 131 ( 3) Name/Numbers 2919 JOE DIMAGGIO BLVD,ROUND NOW Randy Barker 151-10943720006968253 ROCK,TX78685 6/11(1008 6/14/2010 SOUTH S IDR 5122183295 2631 FOREST CREEK DR,ROUND NON- RandyBerker 152-10443720007498787 ROCK TX786G5 6/iS12008 6117/2010 SOUTH IDR S 5122183295 33001-PALM VALLEY BWD, NON- Randy Barker 153-10443720007783150 ROUND ROCK TX 78665 811112008 6/14/2010 SOUTH ]DR S 5122183295 164-1D443720DO7970514 301 UNIVERSITY BLVD,ROUND 611012008 6114/2010 SOUTH NON- S Ready Barker ROCK TX 78665 IDR 5122183295 1WI044372ODD7097639 201 UNIVERSITY BLVD SGNL L, 611012008 6/14/2010 SOUTH NO S Randy Barker ROUND ROCK,TX78666 IDR 6122183295 901 LUTHER PETERSON,ROUND NON- Randy Barker 156.10443720008031889 ROCKTX78665 611w4m 6/1412010 SOUTH loft S 5122183295 i57-1044372MD8689301 3000 PALM VALLEY BLVD,ROUND 611112006 6/1412010 SOUTH NON- S Randy Backer ROCK TX78665 IDR $122183295 910 LUTHER PETERSON,ROUND NON• Randy Barker 168-10443720008172267 ROCK,TX786M56l1D/2008 6/1412010 50U� IDR S 5122183295 158-1044372000&589150 2811 OAKMONT DR,ROUND ROCK, 6/1 W2008 6/14/2010 gpU NON- s Randy Barker 7X78665 IDR 5122183295 160-1044372W0866B758 3939 E PALM VALLEY BLVD PUMP, 611012008 6/14/2010 SOUTH NON- S Randy Barker ROUND ROCK TX 78665 IDR 5122183295 3300 V2 PALM VALLEY BLVD NON- Randy Barker 161-1044372DOD8740859 ROUND ROCK,TX78685 6111/2006 5114/2010 SOUTH IDR S 5122183295 182-10443720009311228 2809EPALMVALLEYBLVD, 6/11/20Dg 5114r2010 SOUTH NON S Randy 130" ROUND ROCK,TX78665 IDR 5122183295 900 LUTHERPEfERSON,ROUND NOW Randy Barker 163 10443720000756357 ROCK,TX 7895 6/10/2008 8/1412410 SOUTH IDR s 5122183295 16440443720003398536 @SUNRISE&CYPRESS,ROUND 5/1012008 6/14/2010 SOUTH NOW S Randy Barker ROCK TX78680 IDR 6122183295 16E-1044372M03851415 @130WMANRD(WATERTANK), 6/1012008 8/1412010 80UTH NON-3 RendyBarker ROUND ROCK TX 78680 IDR 5122185295 166-104072M881 SM 803MiANDLERRD,ROUNUR55K 6/912008 6/10I20t0 SOUTH NON- S Randy Barker TX78680 IDR 5122183295 167-10443720009168442 MCNEIL RD AND CR 172,ROUND 6/1912008 8122/201 D SOUTH NOW S Randy Barker ROCK 7X76680 IDR 5122183295 168-10443720003433721 500 CHISHOLM TRL IRRG M TR 6!9!1008 6/10!2010 SOUTH NDN- Randy Barker ROUND ROCK TX 78681 IDR S 5122183205 @FRONTIER DR TENNIS,ROUND NOW Randy Barker 169-1044372OD03BD7095 ROCKTX78881 6/19/2008 6/22/2010 SOUTH tDR S 5122185295 170-1044372000396D349 1600 SOMERSET,ROUND ROCK, 61912006 6/1012010 SOUTH NON- S Randy Barker TX 78681 IDR 5122183295 171.1D44372003985652 a&H358,CHISHOLM TR,ROUND 6110/2008 6114/2010 SOUTH NON- S Randy Barker ROCK,TX 18681 OR 5122163295 172.10443720004993179 500 CHISHOLM TRL GRDL,ROUND 6/912006 6110/2010 SOUTH NOW S Rudy Badwr ROCK,TX 78681 IDR 5122183295 173.104437200D5056171 @MCNEIL GRDL,ROUND ROCK,TX 6119/2008 6112/2010 SOUTH NON- S Randy Barker 78681 IDR 6122183295 17410443720005134787 @FRONTIER DR TENNIS GRDL gj1912p06 6/2212010 50UTF[ NOW S Randy Berker ROUND ROCK,TX 78681 IDR 51221832!4 5 1600 SOMERSET GRDL,ROUND NOW Randy Barker 1751D44372000S2t1233 ROMTX7668[ b19/2008 6/1071010 WR S 5122183295 708 W EEL LVIEW AVE GRDL, NON• Randy Barker 17640443720W60005526119/2008 ROCK TX 78861 6119/2008 612=10 SOUTH IDR S 5122183295 1991 RAWWDE DR ROUND ROCK NON- S Randy Barker 177-iD443720D0630DBiB TX 7866/19/2008 6/22/2010 SOUTH 81 IDR 5122183295 178-10443720006576222 30D DEEPWOOD DR,ROUND 012008 619/2010 SOUTH NON- S Randy Barker ROCK,1X78681 IDR 5122163295 3706 COUNTY ROAD172Kl 'ROUN6119/2008 6122/2010 SOUTH D NOW S Randy Barrer 179-10443720006578149 ROCX78681IDR 5122183295 160-10443720006716967 HESTERS CROS5WCN AWN, 6/18/2008 8/2?l2010 SOUTH NOW S Randy Barker ©2007 All rights reserved:Constellation NewEnorgy,Inc. 10 PAGE 11119"RCVD AT 4124/2008 5:28:10 PM[Eastern Daylight Time] 5VR:RFX8RD-0MF-0117'DNIS:3653"CSID:5122187028•DURATION(mm-55):13-18 04/25/2008 FRI 11:54 (TX/RX NO 51821 Q015 Apr-25-2008 12 : 00 PM Constellation NewEnergy Inc . 7132227346 16/ 18 04/24/2008 15:37 FAX 51221870' CORR PURCIIASXNG D12 Pricipg Schedale ESI ID Account Schedule:193 ESIID(s) SupplyTemt Congestion Meter Emergency ESI IDS Service Address Start Dalen) End Dated) Zone Type Voltage Contact (3) 0) Name/Numbers ROUND ROCK,TX 78661 IDR 5122183295 181-10443720006933699 600 MCNEIL RD SGNL,ROUND 6!671006 6/912010 NON- S Randy Balker ROCK,TX78661 IDR 5122183295 310 DEEPWOOD DR TEMP B, 182.10443720007148704 ROUND ROCK,TX 78681 818/2008 6!912010 SOUTH IDR S 6122!83295 301 DEPIMOOD DR SWIM POOL, NON- Randy Barker 163.10443720007488294 ROUND ROCK,TX78UI 610008 8/901010 SOUTH IDR S 5122183295 2400112 RR 620,ROUND ROCK,TX 6/52008 8/8/2010 SOUTH NON. Randy Barker 18410443720007604&21 78681 IDR 5 6122183295 18510443720008282059 900 CHISHOLMTRAILCV,ROUND NON- Randy Barker ROCK,TX 78681 6/1012008 611412010 80UTH IDR S 5122183295 1881044372000836i4i9 GO ROUND ROCK DRW SEWR, 6/t872008 6121!2010 SOUTH IDR Randy Barker ROUND ROCK;TX 78881 IDR S 5122183295 187.10443720008409536 23040AMDGEDRTRAFFSIGN, 61n/L006 6Rl2010 SOUTH NON- S Randy Barker RUM ROCK TX 78681 IDR 5122183295 188-10443720008781407 2410 FRONTIER TRL,ROUND 6119120x8 612212010 SOUTH Now S Randy8arkar ROCK,7X78661 IDR 3122183295 35D DEEPWOOD DR.ROUND NON' Rm*Ratkar 18940443720008872361 ROCK,TX 78681 6/Biz008 619/2010 SOUTH IDR S 5122183295 190-10443720008876520 08403 W Old Sealers Dr,Round Ruck, 6/1112008 6114f2(110 SOUTH NON- S Randy Balker TX 78681 IDR 5122183295 1300 WOODS BLVD,ROUND ROCK; NOW Randy Barker 191 t0443720D0928i917 TX78681 619008 6/1012010 SOUTH IDR S 5122183295 192-10443720009810869 100 LA FRONTERA BLVD,-ROUNp SOUTH NON- S Ran Barker ROCK,TX786B1 611912008 6/27!2010 SOUMR 51283295 193.10443720004031525 UFT STA,AUSTIN.TX78728 6113/2008 811812010 SpUly NON- 5 Rand Barker 0R 5122183295 Notes: 1.See section PS2.1 above. 2.As may be updated orreplaced with a new account number issued by thB Ll ility,ISO or other entity for the above listed service address(es), 3.It is the intent of the Parties for the supply of Energy to begiit on or about the dates listed which,unless off cycle dates are agreed by the Parties,are the current,regularly scheduled meter read dates closest to the Start Date and End Date referenced, The exact date that supply begins under this Agreement may vary depending on the day the TDSP actually reads the meter. ©2007 All rights reserved:Constsllatlon NawEnergy,Inc, 11 PAGE 1y19'RCVDAT 412412008 5:28:10 PM(Hastum Daylight Time]'SVR:RFXl3RD•CMF-01rf•DMS:3653'CSID:5122187028"DURATION(mm-35):13.18 04/25/2008 FRI 11:54 [TX/RX NO 51821 10016 Apr-25-2008 12 : 01 PM Constellation NewEnergy Inc . 7132227346 17/ 18 04/24/2008 15:42 FAX 5122187070 CORR PURWASJNG Bola First Anlendment to RetafaEleaMic Provider's Supply Agreement This First Amendment(the"Amendment'')is to the ret;iil electric provider's supply agreement C`Agreement"),entitled"Master EIectricity Supply Agreement,"dated by and between Constellation NewEnergy,Inc.C'Sella?)and City of Round Rock("Buyer'),and is entered into effective as ofthe effective date Df the Agreement. ]'n cotusidgukdort of the mutual promiscs.and agreements contained in this Amendment,the parties hereby agree as follows: Notwithstanding anything to the contrary in the Agreement,Seller agrees with Buyer that the following numbered provisions shall supersede and control any provisions in the Agreement inconsistent with the terms of this Amendment. 1, rricin . Pricing shall not include any standing,mct,x,customer,or monthly base charge,and shall instead be comprised solely of (1)a separately stated amount for the commodity eomponuvt(m cents per kilo-Watt hour),(2)separately specified"pass-through" items,such as transmission or distribution service provider charges or credits,(3)separately stated Texas PUC assessment and Texas gross receipts tax(but not sales taxes),if applicable,(4)the cost for the ft earned by the coordination consultant under contract with the U-GAC Energy Purchasing Corporation in accordance the contracted rate schedule wilt said consultant, !which shall either be included in the commodity cornponent or separately stated,and(5)the separately stated 11-GAC Energy 11urchasing Corporation Aggregation pec of$0.00045 per kilo-Watt hour(which is separate and sport from the fze canned by the coordination consultant included in the commodity component). All charges in the nature of pass-through items shall be made with no mark up by Seller to Buyer. The parties recognize and agree that Buyer,as a political subdivision of the.State of Texas,is exempt from sales taxes;if Seller desires a certificate of exemption from Buyer,Seller may request such a certificate and,if it does so,shall provide such cerUcate form to the Buyer and Buyer shall complete and Tetum such form to the Seller within a reasonable period oftime. 2. 7ntctYf,�t ratcon talc or d r(gyed payments. Each patty shall pay the other party interest on any late or delayed payments at a rate of one percent above the"Prime Rate'as published,on the first day of July of the preceding fiscal year of Buyer that does not fall on a Saturday or Sunday,in The Wall Street Journal under"Money Rates,"from time to time,or an appropriate substituie should such rate cease to be published,or the highest rate allowed by law,wliicbever is the lesser- Other than interest as provided herein,there sh4U be no late foes,late payment penalties,or any other charges or penalties for late or delayed payments. Any early payment discount In the Agreement,however,shall not be negated by the foregoing sentence.. 3. Force maieurc. An event of fora:majmre shall not include: a failure of the Seller to procure a sufficient supply of energy or to schedule the energy;financial distress;inability to make a profit or avoid financial loss;financial inability to perform;loss of markets or suppliers;changes in marketprices offuel or energy;or the economic effect of any change in law. The party claiming force majouro shall provide writton notice of same and the particulars thereof as soon as practicable after the force majeure event occurs, and shall exercise due diligence in seeking to remove,to ninate,or mitigate the event or its effects. 4. Secondary Term. Hat the expiration of the Agreement the Buyer has not executed anew electric supply agreement with Seller or• with another retail electric provider,the term of the Agreement shall-be extended for service continuing boyond the expiration date, subject to termination upon thirty(30)days prior written notice by Buyer,and subject to adjusted pricing in which the amount for the commodity component shall be the one hundred thirty percent(130%)of the"market clearing price of energy"for the applicable "settlement interval"and applicable"congestion zone"in which the Buyer's electricity is consumed,as those phrases in quotation are defined by ERCOT. S. Assignment Neitherparty shall assign the Agreement or its rights hereunder without the prior written consent of the other parry, which consent may be withheld in the exercise of its sole discretion;provided,however,either party may,without the consent of the other party(and without relieving itself from liability hereunder),(i)transfer,sell,pledge,encumber or assign the accounts,revenues or proceeds under the Agreement in connection with any financing or other financial arrangements,(if)transfer or assign the Agreement to an affiliate of such party which affiliate's creditworthiness and financial capability are equal to or higher than that of such party as of the offcctivc date of the Agreement,or(iii)transfer or assign this Agreement to any person or entity succeeding to all or substantially all of the assets whose creditworthiness and financial capability are equal to or higher than that of such party as of the effective date of the Agreement;providad,however,that in each such case,any such assignee shall agree in writing to be bound by tate terms and conditions hereof and so long as the transfen-ing party delivers such tax,enforceability,and performance assurance as the non-transferring party may reasonably request. 6. Nn Discount tion of,��rviea. Seller agrees,and rgwcsents and warrants,that itwill never instruct the transmission or distribution service provider or ERCOT to disconnect physical service to Buyer to thes extent that Buyer is a heilth care facility or otherwise operates critical infrastructure. 7. Requirements service. To the extent that Buyer operates health care or other facilities for which it maintains emergency generators, use of such generators in an outage:or force majeure situation or for required testing purposes for limited periods is allowed. PAGE 18118"RCVD AT 4!2412006 5:28:10 PM[Eastsm Daylight Time]"SVR:tiFXl3RD•oMF-0117'DNIS:3853'CSID:5122187028"DURATION(mm-ss):1348 04/25/2008 FRI 11:54 [TX/RX NO 51821 IM017 Apr-25-2008 12 : 01 PM Constellation NewEnergy Inc . 7132227346 18/ 18 04/24/2008 15:43 FAX 51221870>" CORR PURCHASING 9 019 8. Pg3MEg due date. All amounts invoiced by Seller to Buyer for electricity consumption shrill be due and payable by Buyer to Seller within thirty(30)days from the date Buycr receives the invoice. 9. Chance in law. Any change in law,including but nut limited to changes in any applicable statute,regulations,or BRCOT protocols or guides,or any interpretation of any of the foregoing,shall not result in un automatic change to the price amount for the commodity componcnG At Seller's option,it xray request a good faith negotiation with the Buyer to demonstrate the existence of a change in law, to demonstrate the of cct of the change in law on the elements included by the Seller in the price amount for the commodity component,and to request that the price amount for the commodity component be adjusted to reflect an increase. Buyer shall not be obligated to agree.to any such increase,but shall in good faith consider the request along with any additional proposals by Seller,such as extension of the term of the Agreement at a lower pricing amount for the commodity component,or other consideration offered by Seller as an inducement to Buyer to agree to such an increase. If the parties agree to a change in law adjustment to the price amount for the commodity component or to some other change to the Agreement in lieu thereof,the adjusmient or other change shall be embodied in an appropriate amendment to the Agreement. Xf,within thirty(30)days of seller's request for agreement to a change in law adjustment to the price amount for the commodity component the parties do not agree to such an adjustment or to some other change to the Agreement in lieu thereof,either patty may on thirty(30)days written notice terminate the Agreement withoutpenalty. 10. nfi Bali .'it is recognized by the parties that)3uyer is subjectto the Public InformatiobL Act,and that the Agreement as amended is'subject thereto,including any applicable disclosure exemptions therein. 11. Nnn-aolyopriat m. Buyer intends to slake all required contract payments for the full team of this Agreement,however,Buyer and Seller agree that if Buyer's governing body is not able to appropriate sufficient funds and has no other legally available funds to continue the purchase of electricity covered by the Agreement,Buyer may terminate with6utpanalty this Agreement at the end of Buyer's fiscal year affected thereby,by giving written notice to Seller to thai eMc;%and as of Buyer's termination date,Seller shall have no further duty to supply electricity to Buyer. Buyer agrees to notify Seller in writing of such non-appropriation at the earliest practicable time subsequent to the failure to appropriate. 12: Performance a9, ice. Unless Buyer has an unsatisfaotory credit report from a reputable outside credit reporting service,no deposit or other form of performance assurance will baa required by S oiler from Buyer. J3. Dispute Resolution. The right to a jury trial is not waived. 14. lmcnt of default: Periizdiu which to cure a failure:to pay. The period of time in which lv oure a failure to pay shrill be the longer of the period specified in the Agreement or ten(10)business days from the receipt of written notice of a failure to melte timely payment of an amount due by one party to the other. All other terms and conditions of the Agreement not expressly modified in this Amendment shall remain in full force and effect. Tills Amendment is binding on and inures to the benefit of the parties and their respective successors and permitted assigns,shall be govesxied by the laws ofthe State of Texas without reference to its conflicts of law provisions,and may be executed in duplicate originals(each of which shall constitute and be an original). The persons executing this Amendment represent and warrant tilat they arc duly authorized to execute this amendment on behalf of the party they represent and thereby bind that party to Chia Amendment. Buyer;City ofRound Itock Constellation NewEnergy,Inc. Seller' By By. Name: 12Name: F.A. Rtiffer Title: Title: Vice President. _9q�raphic Sales Date: �. Date: A PAGE 19119'RCVD AT 4/2412008 5.28:10 PM Mastern Dayllgnt Timel'SVR:RFX1BR"MF-0117`DNls:3653`CSiD:5122187028"DURATION(mm ss):13-18 04/25/2008 FRI 11:54 1TX/RX NO 51821 1a018