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<br />4.2 In the event that an lOR must be installed at any.Point of Delivery in order to provide multi-part priclng, if such lOR has not been .
<br />installed prior to the commencement of the Agreement Term, Seller reserves the right to calculate prices based upon' the appropriate
<br />deemed load profile (as obtained by Seller from the PUCT) until such lOR Can be installed. . . '.
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<br />4.3 To the fullest extent allowed by law, in the event, for any reason whatsOever, Seller is ever. determined to -be, or lias been, Buyer's
<br />electricity supplier for a period after the expiration. or termination of a Transaction Confirmation, but before the beginning of a
<br />replacement Transaction Confirmation or the switch to another supplier, then Seller may.charge, and Buyer agrees.to pay, for all'such
<br />electricity so delivered to each ESI ID during each such billing cycle, a price per kWh equivalent to, at Seller's option for each billing
<br />cycle, (I) Seller's then current "standard list price offer," or (Ii) the monthly.retail market rate for the applicable ERCOT congestion zone
<br />O.e., the product of (a) the average of the ERCOT market clearing prices of energy (adjusted to a per kWh basis) for' the 'applicable
<br />ERCOT congestion zone for each on~peak hour of eacli week-day of the calendar month in which the appliCable billing cycle began
<br />(provided that no market clearing price Is to be valued at I~ss than $201MWh ($0.02lkWh) for purposes of this calculation), and (b)
<br />130%].. .
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<br />4.4 In the .event that Buyer changes -any poli'lt of delivery to a different delivery service voltage level than the voltage level In place at the
<br />time the applicable Price Sheet became effective, Seller retains the right to adjust the contracted price tram the applicable Price Sheet tor
<br />that ESIID(s) accordingly. Buyer will not Install baseload generation tQ service the Premise(s) without providing Seller written notification
<br />at least 120 calendar days prior to the anticipated date that the generation will come on line. .'
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<br />4.5 Buyer shall pay the invoiced amount on or before the due date which shall be speCified in .Article II of the Tran~on Confirmation, or
<br />Buyer shall notify Seller. on or before such Invoice due date if Buyer disputes 'any part of 'the invoice tog~ther with Buyer's reasOns
<br />(however, Buyer's payment of an invoice anellor failure to dispute an invoice by the due date, in and of Itself, .shall not.constltute a
<br />waiver by'Buyer of Buyer's right to contest later the correctness of such invoice), but the undisputed portion shall remain due and
<br />payable on the due date. All past due amounts (Including any disputed amounts withheld which are subsequently found to have been
<br />payable), shall accrue interest at a rate equal to (i) one pe~nt (1%) per month, or (II) the highest rate allowed by law, whichever is the
<br />lesser, from the date such payment was due until the same is paid. .
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<br />4.6 In the event that Buyer gives notice of a disputed invoice as set forth In Section 4.5 above, the Parties shall,. for a period of thirty
<br />calendar days following Seller's receipt of that notice, pursue diligent, good fa~ efforts to resolve the dispute. Following resolution of the
<br />dispute, any amount found payable, including interest shall be paid within thirty calendar days.
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<br />4.7 If Buyer notifies Seller in writing of a justifiable concem regarding the accuracy of an Invoice hereunder, Seller shall make available to
<br />Buyer during normal business hours the ,records In Seller's possession reasonably necessary for Buyer to .v~rIfy the accuracy of its bill.
<br />Provided, however, neither Party may request any adjustment or correction of any statement or payment unless WrItten notice of such
<br />request for adjustment or correction Is furnished within twenty-four months of the payment due date for which such adjustment or correction
<br />Is requested. It is understood and agreed that Information and records In Seller's possession that are provided pursuant to this section 4.7
<br />constitute proprietary and confidential information of Seller, the release of which could hinder or harm Seller's competitive position;
<br />therefore, such Information and records are not intended to constitute public information under the Texas Public ,Information Act and shall
<br />not be released by Buyer, unless determined otherwise by the Texas Attorney General or a court .ofcomp~tent JuriSdiction. However,
<br />nothing In this section shall require Buyer to bring a legal challenge in any court to seek to overturn a ruling by the Texas Attorney
<br />General's Office or a court requiring disclosure pursuant to the provisions of the Public Information Statutes, but Buyer 0) shall cooperate
<br />and assist Seller in the event Seller should bring such a challenge and (Ii) make no disclosure until when-~nd if'SeIIer's challenge ha~ been
<br />finally denied. All information and records provided hereunder constitutes the property of Seller, and such information and records, and
<br />copies thereof, as well as all notes taken therefrom, shall be returned to Seller promptly after the resolution of any invoice accuracy
<br />concerns. .
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<br />4.8 Payments may be made by check, wire transfer, direct debit or electronic data interchange (on terms reasonably acceptable to
<br />both Parties), and notwithstanding anything to the contrary contained herein, must be received by the receiving Party on or before the
<br />end of the time period specified in Article II of the Transaction Confirmation. The address to which paymentS are to be made shall be
<br />as set forth in the Transaction Confirmation. For Buyer to pay Seller other than by check, Buyer needs to obtain required
<br />Information/agreements with Seller. . '.
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<br />4.9 Buyer agrees that it shall abide and be bound by tlie Agreement through the end of the Agreement Term and shall not, during the
<br />Agreement Term, claim any right to pricing based upon the Price to Beat. "Price to Beat" shall mean a price for electricity, as
<br />determined pursuant to the Public Utility Regulatory Act, Section 39.202, charged by an affiliated ,retail electric provider to eligible
<br />customers. However, In the event that Buyer, as a matter of law, should ever have the right to claim Price to Beat and thereby
<br />terminates this Agreement, Buyer ~grees to pay to Seller, the positive amount, If any, calculated as,follows: (all quantities of electricity
<br />attributable to all Premises from the date of termination of this Agreement through the end of the Agreement Term) multiplied by (the
<br />contracted price frorn the applicable Price Sheet minus 95.0% of the then current retail market value for such quantities).
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<br />4.10 In the event Buyer ever takes electricity exceeding the Maximum kW for any Premlse(s), each time It does so Buyer shall pay the
<br />Over Capacity Charges as stated in the applicable Price Sheet. "Maximum kW' for each Premise, if any, Will be set forth on Exhibit
<br />"A-, and shall be recorded at the TDSP Point of Delivery.
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<br />4.11 Buyer represents and warrants that as a political subdivision of the State of Texas it is exempt from state sales taxes pursuant to
<br />section 151.309 of the Texas Tax Code. (Information' pertaining to such exemption shall be provlded'tO Seller as requested.)
<br />Therefore, Seller, to the extent that it is i'lot required to pay such taxes, will not flow through to Buyer the costs of such taxes hereunder.
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<br />City of LaPorte.nbc.dlj.c.102803.doc CONFIDENTIAL
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