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CM-09-10-198Pricing Schedule SCHEDULE A - FIXED PRICE SOLUTIONS PRICING SCHEDULE Customer: City of Round Rock Product Type: Fixed Price Solutions 0 Constellation NewEnergy Supply Term: See ESI ID Schedule Billing Type: Summary Billing Schedule Date:10/8/2009 Me way energy works This Pricing Schedule is entered into pursuant to and in accordance with the Constellation NewEnergy, Inc. Master Electricity Supply Agreement ("Master Agreement") executed on April 25, 2008 between NewEnergy and Customer, and is subject to all of the provisions, terms and conditions of such Master Agreement. Notwithstanding anything to the contrary, any conflict between this Pricing Schedule and the Master Agreement will 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: 91008125040317545 Product Description: 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, which applies to Customer's usage within the Covered Bandwidth, 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. NewEnergy reserves the right to collect any additional charges and costs incurred due to Customer's usage outside the Covered Bandwidth, as described in Section PS2.3 and the Consumption Beyond Tolerances provisions of this Pricing Schedule. 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, including but not limited to the types of changes described above. 1. NewEnergy Electricity Charge*. $0.06556 /kWh *The NewEnergy Electricity Charge includes the following items: Energy, imbalance within tolerance bands, ERCOT administrative fees, unaccounted for energy, line Toss charges, renewable energy credit charge, congestion (inter -zonal), scheduling/forecasting charges, Four Main Ancillary Services, and Other Ancillary Services. 2. Pass Through Charges: Public Utility Gross Receipts assessment, Delivery Charges, Taxes, Emergency Interruptible Load Service (EILS) charges and any costs associated with the implementation of a Nodal Congestion Management System (as described under "Special Provisions" below) will be passed through without markup. Special Provisions: 1. Additional Pass Through Charges or Credits. For the purpose of this paragraph, "Nodal Congestion Management System" means the method, formulas and/or equations used to determine charges for congestion by ERCOT in the ERCOT 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 ERCOT implements a Nodal Congestion Management System after the date this Pricing Schedule is executed, NewEnergy shall charge or credit Customer (i) 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, multiplied by Customer's metered usage (adjusted for line losses) or (ii) 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 divided by (b) the total number of 345 kV buses in such trading Hub. The "original Congestion Zone" shall be the Congestion Zone as it existed on the date this Pricing Schedule was executed. Any term(s) not defined herein shall have the meaning set forth in the ERCOT Protocols as amended from time to time. Any additional charges or fees associated with the ERCOT Nodal Protocols, including without limitation the Reliability Unit Commitment or Make Whole Charge, shall also be passed through to Customer without mark-up. PS1. Certain Definitions. The definitions in this Pricing Schedule shall replace and supersede the ERCOT Specific Terms and definitions, if any, in the Master Agreement. "Change in Law" is defined 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 classifications under the short form Electricity Supply Agreement. © 2007 All rights reserved: Constellation NewEnergy, Inc. 1 OR -09- olcig Pricing Schedule "Contract Quantity" means the quantity of Energy agreed to in any transaction which NewEnergy agrees to sell and deliver to Customer, and which Customer agrees to purchase and accept from NewEnergy. "Covered Bandwidth" means the estimated minimum monthly usage and maximum monthly usage amounts for each Account set forth in this Pricing Schedule. "Delivery Point" for each Account means the congestion zone for such Account, as set forth in this Pricing Schedule. "Delivery Charges" include, but are not limited to: Transmission and Distribution Charges, System Benefit Fund Charge, Nuclear Decommissioning Charge, Competitive Transition Charge, Standard Customer Metering Charge, Customer Charge, Merger Savings and Rate Reduction 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 similar amounts that are assessed by and payable to the TDSP 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 ERCOT 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 electric energy. "ERCOT" means the Electric Reliability Council of Texas or any successor ISO. "ERCOT Protocols" means the ERCOT Protocols that set forth the procedures and processes used by ERCOT and the ERCOT market participants for the orderly functioning of the ERCOT system and market. "ESI 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 ERCOT Protocols. "Governing Jurisdiction" 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 Clearing Price of Energy as posted on its website + Uplifts + a NewEnergy administrative fee of $25/MWh)] + [(Delivery Charges, Taxes and Replacement Reserve Service charges (as defined by the ERCOT Protocols) and any similar charges imposed by ERCOT on purchases of energy from ERCOT's MCPE market, which will be passed through at cost)]. "Late Payment Charge" means 2.5% of the total dollar amount set forth on the invoice as due and payable from Customer. "Market Clearing Price of Energy" ("MCPE") is the highest price associated 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 promise that past MCPE prices are indicative of future MCPE prices. "Master Agreement" has the meaning given above; provided, however, that the term Master Agreement shall also refer to the existing agreement between NewEnergy and Customer, whether it is titled Electricity 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 ("IDR") meter; and, in the case of a non -IDR meter, 15 minute interval usage calculated by applying the applicable ERCOT 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 Support, Black Start Service, Reliability Must -Run Service, Out of Merit Capacity Service, Out -Of -Merit Energy Service and Zonal Out -of -Merit Energy (Zonal OOME) Service, all as defined by the ERCOT 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. "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 it not been terminated early (the "Remaining Term"). In making this determination the Non -Defaulting Party may (but is not required to) consider: (i) anticipated consistency with or deviations from past electricity usage patterns, (ii) variations in anticipated weather pattems, (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 herein, the term of this Pricing Schedule shall commence on the "Start Date(s)" and end 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 it 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 © 2007 All rights reserved: Constellation NewEnergy, Inc. 2 Pricing Schedule 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 delay in the start of NewEnergy'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 right, in its discretion, to terminate this Pricing Schedule without penalty or prejudice upon written notice to Customer. PS2.2 Invoicing and Payment. Customer shall be billed for amounts due under this Pricing Schedule and the Master Agreement for each Account. Customer shall 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 840159, 1401 Elm Street, 5th Floor, Dallas, Texas 75202. Late payment charges may be included on a subsequent invoice and are payable on demand. NewEnergy reserves the right to adjust its billing cycle from time to time. Customer acknowledges that NewEnergy's ability to invoice Customer is dependent on the Utility's or ISO's ability 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 be 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 Usage Variance; Early Termination Payment. Customer acknowledges that NewEnergy determined the fixed price for electricity for the NewEnergy Electricity Charge calculation, in part, based on Customer's historic and/or estimated monthly usage and metered rate of consumption for each Account. Consequently, Customer agrees to bear any additional charges and costs to NewEnergy arising from, or relating to, usage outside the Covered Bandwidth, including without limitation, circumstances in which electric usage by one or more Accounts declines to de minimis levels or ceases altogether (for any reason other than Force Majeure). 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 may, to the extent permitted by applicable Law, 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 NewEnergy, 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 kilowatts; and (2) the electricity supplied under this Agreement is not for residential use. PS2.5 NewEnergy and Utility Contact Information. Customer may contact NewEnergy regarding its invoice or other matters conceming this Agreement at NewEnergy's Customer Service Department by toll-free telephone at 888-635-0827, via email at customercare@constellation.com, or at Constellation NewEnergy Inc., 1221 Lamar Street, Suite 750, Houston, Texas 77010. CUSTOMER AGREES TO CONTACT ITS UTILITY IN THE EVENT OFA POWER OUTAGE OR OTHER ELECTRICITY RELATED EMERGENCY AT THE FOLLOWING TELEPHONE NUMBERS: Utility Emergency Service CenterPoint 800-332-7143 Same Oncor Electric Delivery Company (formerly TXU Electric Delivery) 888_313-4747 888-313-6862 AEP 866-223-8508 877-373-4858 Texas New Mexico Power 888-866-7456 Same Nueces 361-387-2581 Same Sharyland 956-668-9551 956-687-5600 PS2.6 Disconnection. Pursuant to PUCT regulations, all retail electric providers are allowed to disconnect customers for non-payment or if no service contract is in effect. Notwithstanding anything in this Agreement to the contrary, Customer acknowledges that in addition to the rights set forth in Customer's Agreement, NewEnergy shall 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. PS2.7 Substitution. In the event Customer sells or otherwise disposes of a facility to which NewEnergysupplies Energy("Original Facility"), Customer may substitute another facility"Substitute Facility") for the Original pp (e g ty)) ( Y)Facility; provided, (a) the Substitute Facility 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 Substitute Facility has similar Toad 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 govemed by this Agreement. PS2.8 Waivers. Customer has voluntarily agreed that the PUCT's Customer Protection Rules, 16 TEX. ADMIN. CODE Subchapter R, §§25.471, et seq. (the "Customer Protection Rules"), are waived to the extent allowed by law and shall not apply to this Agreement. AFTER CONSULTING WITH AN © 2007 All rights reserved: Constellation NewEnergy, Inc. 3 Pricing Schedule ATTORNEY OF CUSTOMER'S OWN SELECTION, CUSTOMER VOLUNTARILY WAIVES 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. PS2.9 Payments to Certain Third -Parties: Customer acknowledges and understands that: o NewEnergy is making a payment to CGP Solutions, LLC in connection with its efforts to facilitate Customer and NewEnergy entering into this Agreement; and o the NewEnergy Electricity Charge reflects the fee paid to CGP Solutions, LLC o CGP Solutions, 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 regarding such fee to CGP Solutions, LLC Customer Billing Address: Constellation NewEnergy Payment Address: City of Round Rock 221 E. Main Street Round Rock, TX 78664 Phone: 5122185443 Fax: 5122185442 ATTN: Accounts Payable Email: Constellation NewEnergy, Inc. P.O. Box 840159 Dallas, TX 75284-0159 Phone: 1 (888) 635-0827 Fax: (713) 222-7347 Email: customercareAconstellation.com Constellation NewEnergy, Inc. 1221 Lamar St. Suite 750 Houston, Texas 77010 Phone: (713) 222-6080 Fax: 1-888-232-9800 ATTN: Legal Department BDM: Bob Forman 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 for your file. City of R•und Rock By: Name: Title: Date: Ci Minhk e,,-- 1 D .,-- (D- Dr Constellation NewEnergy, Inc. By: Name: Title Date: 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 review and acceptance of this information will help ensure accurate future invoices. © 2007 All rights reserved: Constellation NewEnergy, Inc. 4 Customer Notice Address: Constellation NewEnergy Notice Address: City of Round Rock 221 E Main Street Round Rock TX 78664 Phone: 5122185455 Fax: 5122187028 ATTN: Howard Baker Email: howardb@round-rock.tx.us Constellation NewEnergy, Inc. 1221 Lamar St. Suite 750 Houston, Texas 77010 Phone: (713) 222-6080 Fax: 1-888-232-9800 ATTN: Legal Department BDM: Bob Forman 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 for your file. City of R•und Rock By: Name: Title: Date: Ci Minhk e,,-- 1 D .,-- (D- Dr Constellation NewEnergy, Inc. By: Name: Title Date: 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 review and acceptance of this information will help ensure accurate future invoices. © 2007 All rights reserved: Constellation NewEnergy, Inc. 4 Pricing Schedule ESI ID Account Schedule 1 ESIID(s) ESI DP)Service Address Supply Term Congestion Zone Meter Type Voltage Emergency Contact y Name/Numbers Start Date11) 13) End Date(1) 13) 1-10443720009980585 Nntac• 2010 Harrell Pkwy Perm , Round Rock, TX 78665 10115/2009 61512012 NORTH NON- IDR S Howard Baker 5122185455 1. See section PS2.1 above. 2. As may be updated or replaced with a new account number issued by the Utility, 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 begin 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. Contract Quantities: Congestion Zone Calendar Month Usage (kWh): Zone Year JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC NORTH 2009 0 0 0 0 0 0 0 0 0 402 352 1,305 NORTH 2010 458 304 1,172 2,937 1,196 316 313 383 496 720 360 1,305 NORTH 2011 468 304 1,172 2,881 1,196 316 308 388 496 720 360 1,282 NORTH 2012 468 316 1,148 2,881 1,216 37 0 0 0 0 0 0 Minimum and Maximum Tolerance: +/- 10.00% / -10.00%of calendar month zonal usage This tolerance band is not to be used to add and delete Accounts. Consumption Beyond Tolerances: The NewEnergy Electricity Charge will be applied to all Metered Usage. If Metered Usage exceeds the Maximum Tolerance, NewEnergy may charge the following amounts if the resultant number is positive: (kWh beyond Maximum Tolerance) plus (unaccounted for energy and line losses) times (Weighted Average ERCOT Zonal Rate for the applicable time period minus NewEnergy Electricity Charge). If Actual Usage is less than Minimum Tolerance, Actual Usage will be charged at the NewEnergy Electricity Charge; plus, NewEnergy may charge the following amounts if the resultant number is positive: (kWh under Minimum Tolerance) plus (unaccounted for energy and line losses) times (NewEnergy Electricity Charge minus Weighted Average ERCOT Zonal Rate). Replacement Reserve Service charges (as defined by the ERCOT Protocols) and any similar charges imposed by ERCOT on purchases of energy from ERCOT's MCPE market will be passed through without markup. "Weighted Average ERCOT Zonal Rate" means the weighted average (weighted in accordance with Customer's zonal Metered Usage) of ERCOT's Zonal Market Clearing Price of Energy, plus Uplifts. © 2007 All rights reserved: Constellation NewEnergy, Inc. 5