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<br />plus (all reasonable direct costs and expenses Incurred by Seller). Such amount shall tie Immediately due and payable within thirty
<br />. calendar days following such termination. The current Market Value in this Instance shall m~an the price that Seller would reasonably be
<br />able to obtain. from a bona-fide third party If entering Into a contract with another customer with similar pricing factors as Buyer for the
<br />unpurchased quantities, and for the remaining term after the Early Termination Date through the end of the Agreement Term. Seller
<br />shall have a duty to use commercially reasonable effo~ to mitigate its damages.
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<br />8.4 Calculation of Buver's Damaaes. In the event that this Agreement is terminated by Buyer pursuant to Section 8.1, the' Parties agree,
<br />. that in addition to all amounts Seller may owe Buyer prior to the termination, BUyer's damages shall be the positive amount, If any,
<br />calculated as follows: (all remaining unpurchased quantities of electricity reflected on Exhibit "A" for all ESI IDs through the end of the
<br />Agreement Term) multip.lied by (the Current retail market cost for the un purchased quantities at the time of termination, minus the price
<br />that Buyer would have paid for the unpurchased quantities through the end of the Agreement Term according to the applicable' Price
<br />Sheet); plus (all reasonable direct costs and expenses Incurred by Buyer); minus all amounts Buyer may owe Seller for electricity
<br />consumed by Buyer prior to the Early Termination Date. Such amount shall be Immediately due and payable within thirty calendar days
<br />following such termination. The current retail market cost In this Instance shall meah the price Buyer would have to pay If entering into a
<br />commercially competitive contract with another REP for the same quantities and ESI IDs, and for the remaining term after the Early
<br />Termination Date through the end of the Agreement Term. The price offered by the POLR, or any REP's standard list price offer, shall
<br />.,not be used to calculate Buyer's damages. Buyer shall have a duty to use commercially reasonable efforts to mitigate Its damages.
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<br />8.5 Non-aDDroDriation. Buyer and Seller agree that in the event that Buyer Is not able to allot or appropriate sufficient funds, for
<br />Buyer's fiscal year(s} subsequent to the initial fiscal year during the term of this Agreement, to continue the purchase of the total'
<br />quantity of electricity covered by the Agreement and has no legally a~allable funds for the purchase of services to perform functions
<br />similar to those performed under this Agreement, Buyer may terminate this Agreement at the end of Buyer's then current ~scal year by
<br />giving ninety (90)' days written notice to Seller and enclosing therewith a swom statement that the foregoing conditions exist.' In this
<br />sole event, Buyer shall not be Obligated to make contract payr)'lents beyond the end of the then current fiscal year. Furthermore, Buyer.
<br />covenants and reiiresents to Seller that: . .
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<br />(a) Buyer has budgeted and has available for the current fiscal year sufficient funds to comply with Its obligations under 1his
<br />Agreement; . . .
<br />(b) There are no circumstances presently affecting Buyer that could reasonably be expected to adversely affect its abiihy to
<br />budget funds for the payment of all sums due under this Agreement; . .
<br />(c) Buyer believes that funds can be obtained in amounts sufficient to make all contract payments during the full term of this
<br />Agreement and intends to make all required contract payments for the full term of this Agreement;
<br />(d) Buyer covenants that it will do all things within its power to obtain, maintain and properly request and pursue funds from
<br />which contract payments may be made, specifically including in its annual budget requests amounts sufficient to make
<br />. . contract payments for the full term of this Agreement; , .' .
<br />(e) Buyer will not give priority in the appropriation of funds for the acquisition or use of additional energy services; -
<br />(f) If any funds are appropriated for electricity costs,.such funds shall be applied first to the cost of electricity to be provided
<br />pursuant to this Agreement and that any such funds shall not be used to pay for electric power from any other electric
<br />power provider for the accounts covered in this Agreement; and .
<br />. (g) Buyer agrees to notify Seller in writing of such non-approprlatlon at the earliest practicable time subsequent to the.fallure
<br />to appropriate.
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<br />As of the termination date Linder this Section 8.5, Seller shall have 110 further duty to supply electricity to Buyer and shall move service
<br />forB~yer's Premises to the POLR on the date of termination for non-appropriatlon.
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<br />IX;, FORCE MAJEURE. If either Party is unable to perform Its obligations, In whole or in part,. due to an event of force majeure as
<br />defined herein, then the obligations of the affected Party (other than the obligations to pay any amounts arising prior to the force
<br />majeure event) shall be .suspended to the extent made neCessary by such event. The term "Force Majeure" shall mean any act or
<br />event that is beyond the claiming Party's control (and which could not be reasonably anticipated and pre"ented through the use' of
<br />reasonable measures), including, without Iimitatlon,.the failure of the TDSP to receive, transport or deliver; or otherwise perform, unless
<br />due to the failure of the Party claiming Force Majeure t~ perform such Party's obligations hereunder, and an event of Force Majeure of .
<br />Seller's suppliers..The Party suffering the event of Force MajeurEi shall give written notice of such event of Force Majeure In reasonably
<br />full particulars to the other Party, as soon -as reasonably possible. Any such event of Force Majeure shall, so far as possible, be
<br />remedied with all reasonable dispatch. It is understood and agreed that the settlement of strikes or lockouts will..be entirely within the
<br />discretion of the Party having the difficulty, and that the above requirement of the use of diligence in restoring normal operating
<br />conditions will not require. the settlerT:Ient of strikes or lockouts by acceding to the terms of the opposing party when such course is
<br />inadvisable In the discretion of the Party having the difficulty. Neither financial distress nor the inability of either Party to make a profit
<br />or avoid a financial loss shall be deemed a Force Majeure event, nor shall (i) changes in the market prices of fuel, energy, or electricity,
<br />or (II) a Party's financial inability to perform Its obligations under this Agreement, constitute an event of Force Majeure hereunder.
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<br />X. WARRANTIES AND LIMITAnONS OF L1ABILmES.
<br />10.1 Seller hereby warrants to Buyer that at the time of delivery of electricity hereunder it will have good title and/or the right to. sell
<br />such electricity, and that such electricity will be free and clear of all liens and adverse claims. Title will pass to Buyer at the TDSP Point
<br />of Delivery. EXCEPT AS PROVIDED FOR IN THE FIRST SENTENCE OF THIS PARAGRAPH, SELLER EXPRESSLY DISCLAIMS
<br />AND MAKES NO WARRANTIES, WHETHER WRITTEN OR VERBAL, WHETHER EXPRESS, IMPLIED, OR STATUTORY,
<br />INCLUDING, WITHOUT LIMITATION, ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF MERCHANTABILITY OR
<br />FITNESS FOR A PARTICULAR PURPOSE.
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<br />City of LaPorte.nbc.dlj.c.102803.doc
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<br />CONFIDENTIAL
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