Search

AGENDA MEETING OF THE BOARD OF ALDERMEN NOVEMBER 9, 2016

1.

2.

10.

11.

12.

13.

14.

PRESIDENT BRIAN S. MCCARTHY CALLS ASSEMBLY TO ORDER

PRAYER OFFERED BY CITY CLERK PATRICIA PIECUCH

PLEDGE TO THE FLAG LED BY ALDERMAN TOM LOPEZ

ROLL CALL

REMARKS BY THE MAYOR

RESPONSE TO REMARKS OF THE MAYOR

RECOGNITIONS

READING OF MINUTES OF PREVIOUS MEETING

Board of Aldermen. ........ 00... cee cee eee ee eee tee teste tent tee eee see eteseetesaee teats eee 10/25/16
COMMUNICATIONS

From: Mayor Jim Donchess
Re: Notification of Entry into Contract with a 3 Party Supplier for Electricity Supply

PERIOD FOR PUBLIC COMMENT RELATIVE TO ITEMS EXPECTED TO BE ACTED
UPON THIS EVENING

PETITIONS

Petitions for Street Acceptance for Annabelle Court, A portion of Cherrywood Drive. Moonstone Court
and Tamora Court

e Committee on Infrastructure Recommends: Approving Street Acceptances

NOMINATIONS, APPOINTMENTS AND ELECTIONS

Appointments by the Mayor

REPORTS OF COMMITTEE

Budget Review Committee ... 2.0... 0.0... cee cee cette ett tee te etttettsttetteeeeeeeees 10/24/16
Finance Committee...... 0.0... ccc cee cee cence ee cee ten cesses taste settee ttettetteeeseesees 11/02/16
Committee on Infrastructure... 0... cece ce cee cee cette ten testes ee ttetetteeteesteesene 11/03/16
Planning & Economic Development Commiittee............... 0c cee cee cee cette eee eeeeees 11/01/16

WRITTEN REPORTS FROM LIAISONS

CONFIRMATION OF MAYOR'S APPOINTMENTS

UNFINISHED BUSINESS — RESOLUTIONS

R-16-071
Endorsers: Mayor Jim Donchess
Alderman Ben Clemons
Alderman Richard A. Dowd
Alderman June M. Caron
Alderwoman Mary Ann Melizzi-Golja
Alderman-at-Large Michael B. O’Brien, Sr.
Alderman-at-Large Brian S. McCarthy
AUTHORIZING THE CITY OF NASHUA TO EXTEND THE LEASE AGREEMENT WITH THE NASHUA
DOG OWNERS GROUP, INC. FOR THE DOG PARK AT YUDICKY FARM
e Committee on Infrastructure Recommends: Final Passage
e Also assigned to Board of Public Works; Favorable Recommendation Issued 10/27/16

R-16-074
Endorsers: Mayor Jim Donchess
Alderwoman Mary Ann Melizzi-Golja
Alderman Richard A. Dowd
Alderman-at-Large Michael B. O’Brien, Sr.
RELATIVE TO THE TRANSFER OF $25,000 FROM DEPARTMENT #179 “LIBRARY,” ACCOUNT
CLASSIFICATION 51 “SALARIES AND WAGES” AND ACCOUNT CLASSIFICATION 52 “FRINGE
BENEFITS” INTO DEPARTMENT #183 “ECONOMIC DEVELOPMENT”
e Budget Review Committee Recommends: Final Passage

R-16-075
Endorser: Alderman Richard A. Dowd
AUTHORIZING RELEASE OF A CERTAIN ACCESS EASEMENT OVER 482 AMHERST STREET
e Committee on Infrastructure Recommends: Final Passage

R-16-076

Endorser: Mayor Jim Donchess
Alderman-at-Large Lori Wilshire
Alderman June M. Caron
Alderman Richard A. Dowd
Alderman Ken Siegel
Alderwoman Mary Ann Melizzi-Golja
Alderman-at-Large Michael B. O’Brien, Sr.
Alderman Tom Lopez
Alderman-at-Large Brian S. McCarthy

AUTHORIZING THE CITY OF NASHUA TO EXTEND AND AMEND THE LEASE FOR THE HERITAGE

RAIL TRAIL COMMUNITY GARDEN

e Finance Committee and Committee on Infrastructure Recommend: Final Passage

UNFINISHED BUSINESS — ORDINANCES

O-16-011
Endorsers: Alderman Don LeBrun
Alderman Ken Siegel
Alderman David Schoneman
Alderman Tom Lopez
ADOPTING PROVISIONS FOR REDUCED TAXATION FOR CERTAIN CHARTERED PUBLIC
SCHOOL FACILITIES
e Tabled at Full Board Level — 5/10/16

O-16-018
Endorser: Alderman June M. Caron
ESTABLISHING TWO FIFTEEN MINUTE PARKING TIME LIMIT ZONES ON PORTIONS OF
ARLINGTON STREET AND GILLIS STREET
e Committee on Infrastructure Recommends: Final Passage

NEW BUSINESS — RESOLUTIONS

R-16-077
Endorser: Alderman Richard A. Dowd
APPROVING THE COST ITEMS OF A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE
NASHUA BOARD OF EDUCATION AND THE NASHUA TEACHERS’ UNION, LOCAL 1044, AFT,
AFL-CIO FROM SEPTEMBER 1, 2016 THROUGH AUGUST 31, 2017 AND RELATED TRANSFERS

R-16-078
Endorsers: Mayor Jim Donchess
Alderwoman Mary Ann Melizzi-Golja
RELATIVE TO THE ACCEPTANCE AND APPROPRIATION OF $87,573 FROM THE STATE OF NEW
HAMPSHIRE, DEPARTMENT OF SAFETY “STATE HOMELAND SECURITY GRANT PROGRAM”
INTO FIRE GRANT ACTIVITY “2016 HAZMAT WIDE AREA MONITORING”

R-16-079
Endorsers: Mayor Jim Donchess
Alderman-at-Large Lori Wilshire
RELATIVE TO THE ACCEPTANCE AND APPROPRIATION OF $61,900 FROM THE STATE OF NEW
HAMPSHIRE, DEPARTMENT OF SAFETY “STATE HOMELAND SECURITY GRANT PROGRAM”
INTO POLICE GRANT ACTIVITY “2016 TACTICAL AND HAZMAT ROBOT”

R-16-080
Endorsers: Mayor Jim Donchess
Alderman-at-Large Lori Wilshire
RELATIVE TO THE ACCEPTANCE AND APPROPRIATION OF $49,364.76 FROM THE STATE
OF NEW HAMPSHIRE, DEPARTMENT OF SAFETY “STATE HOMELAND SECURITY GRANT
PROGRAM” INTO EMERGENCY MANAGEMENT GRANT ACTIVITY “2016 INFLATABLE SHELTER”

NEW BUSINESS — ORDINANCES
O-16-021
Endorser: Alderman June M. Caron
CHANGING THE NAME OF THE REVIEW AND COMMENT COMMISSION TO THE CITIZENS
ADVISORY COMMISSION FOR COMMUNITY GRANTS
Q-16-022
Endorser: | Mayor Jim Donchess
ESTABLISHING AN ENVIRONMENT AND ENERGY COMMITTEE
PERIOD FOR GENERAL PUBLIC COMMENT
REMARKS BY THE MEMBERS OF THE BOARD OF ALDERMEN

Committee announcements:

ADJOURNMENT

Jim Donchess
Mayor e City of Nashua

To: Board of Aldermen
From: Jim Donchess
Date: 11/3/16

Re: Notification of entry into contract with a 3 party supplier for electricity supply

Pursuant to NRO § 5-74 (B), which states that.a contract that extends from the current fiscal year into
succeeding fiscal year(s) in which no funds have. been appropriated nor otherwise designated for this
purpose shall be approved by the full Board of Aldermen before the contract shall become binding on the
City.

The Finance Committee approved and placed on file the notification of the award of the referenced contract
at their November 9, 2016 meeting. | am requesting the concurrence and approval of the full Board of
Aldermen for the award of the following contract:

Contract notification of entry into contract with a 3 pa rty supplier, Constellation NewEnergy, Inc., for
electricity supply. Attached please find John Griffin’s Memo regarding this contract. This contract is for
three (3) years with the term beginning November 1, 2017.

229 Main Street *« PO Box 2019 * Nashua, New Hampshire 03061-2019
603.589.3260 * fax 603.594.3450 »* NashuaMayor@NashuaNH.gov
www.NashuaNH.gov

City of Nashua

Financial Services Division

229 Main Street - Nashua, NH 03060 (603) 589-3171
Fax (603) 589-3209

September 16, 2016

TO: Mayor Donchess
Finance Committee

FROM: John Griffin, Chief Financial Officer/Comptroller

SUBJECT: Notification of entry into contract with a 3" party supplier for electricity supply.

On Thursday, September 15"", 2016, Financial Services competitively solicited and entered into an
agreement with a 3™ party energy supplier for the tariff-controlled supply portion of its electric utility
bills. Pursuant to the communication approved at the September 7", 2016 Finance Committee meeting,
please find attached the executed contract (“Exhibit A’’).

Contract Terms:
Fixed Price: $0.07010 per kWh
Fixed Term: 36 months beginning November 2017

EXHIBIT A

ae
Agreement is Not

«= Constellation. vats Unies

; Executed by Selle
An Exelon Company ¥ r

Constellation NewEnergy, Inc.
Electricity Supply Agreement — Fixed Price Solutions

CITY OF NASHUA NH (“Customer”) AND Constellation NewEnergy, Inc. ("Seller") AGREE AS FOLLOWS:

Defined Terms. Capitalized terms have the meanings set out in this Electicitly Supply Agreement, including the atached General Terms and Condifons
("Agreement’); generally the words "you" and "your" refer to the Customer listed above and the words "we" and "us" refer to Seller, unless the context clearly

requires otherwise.

Purchase and Sale of Electricity. You will purchase and receive, and we will sell and supply all of your electricity requirements at the prices set forth below
for each account identified in the Account Schedule below ("Account’}), By signing this Agreement, you authorize us to enroll each Account with your UDC so
fhat we can supply those Accounts). You will take such acions as we request to allow us to enroll each Account in a imely manner. You agree that we may
select such sources of energy as we deem appropriate to meet our obligations under the Agreement We will enroll each Account with the applicable UDC as
being supplied by us and will take such other actions wih the applicable UDC and ISO necessary for us fo meet our obligations under the Agreement

The speciic prices for each Account are set forth in the Account Schedule, below. You are also responsible to pay (1) Taxes - which we will pass through fo
you on your bill or as part of the price of electricity, as may be required by law, rule or regulation and (2) UDC charges for delivery/distribution services if we
provide you a single bill that includes UDC charges. Your prices are fixed for he existing term of this Agreement and only subject to change if there is a
change in law, as described in Secion 5 of the General Terms and Condifons below, The UDC charges (if any) and Taxes are charged to you as a “pass-
hhrough," which means they will change during the existing farm of this Agreement if and as the related charges assessed or charged vary for any reason,
including but not limited to the types of changes described above.

Cost Components. For each of the items listed as "Fixed" below, this means the ifem is included in your contract prices as set forth in the Account Schedule.
For each of the items listed as “Passed Through" below, this means that you will be charged the costs associated with the line item in accordance with the
defnifions of each item in Section 1, Defnifions of the General Terms and Conditions.

Energy Costs Fixed
Ancillary Services And Other ISO Costs | Fixed
Capacity Costs Fixed
Line Loss Costs Fixed
FERC Order 745 Costs Fixed
Winter Reliability Costs Fixed

The contract prices contained in the Account Schedule have been reduced to refect a fxed credit fp you for the Aucion Revenue Rights and Transirission
Loss Credits associated with the Account(s). The contract prices also incude any credit costs and margin as well as Renewable Portfolio Standards Coss.

Retail Trade Transactions. At any fme during the term of this Agreement, you may request the purchase of renewable energy certificates in an amount
equal ) a prescribed percentage of your load volume by entering info one or more Retail Trade Transactions ("RTTs") between us. If we both agree to the
pricing and terms of the renewable energy certificates purchase, a separats RTT Conirmation signed by both of us will document each such purchase and be
incorporaied herein.

Term. This Agreement will become efecive and binding after you have signed the Agreement and we have counter-signed. Subject to successfull enrollment
of your Account{s), this Agreement shall commence on or about the date set forth under "Start Date", and end on or about the date set forth under "End Date",
unless extended on a holdover basis as described in this Agreement The actual Start Date is dependent on the UDC successfully enrolling the Accouni(s) and
furnishing us with all necessary information regarding the Accounts) meter read cycle and meter read date(s). The dates set forth in the Account Schedule
below reflect UDC informaton available at that fime or as otherwise estimated by us, The actual meter read dates may occur on or about the dates set forth
herein. We will use commercially reasonable efforts i» begin service 1 each Accounts) on the actial meier read date on or about the Start Data set forth
herein. lf we are unable to fimely enrofi an Account, the Start Date will commence on the next regularly scheduled UDC meter read cycle date following
Successful enrollment The End Dats will remain the sare unless extended for a holdover term. We shall not be liable for any failure t enroll or drop an

FOR INTERNAL USE ONLY
©2016 Constellation Energy Resources, LLC Allrights reserved,
Errors and omissions excepted. Std. Short Form_v.2010 Rev Mar-04-2016 0

Sales Rep: Craig Brazell 117636.46911.0 Printed: 9/15/2016
Page - 1 - of 12

Account by the Start and End Date due fo circumstances beyond our control. We will not be responsible for any gaps in service that may occur between the
termination of your service from a prior supplier and the commencement of supply from us.

Nothing in this Agreement shall be deemed to require or otherwise obligate us fp offer fo extend the term of this Agreement If following termination or
expiration of this Agreement (whether in whole or in part), for any reason, some or all of the Accounts remain designated by the UDC as being supplied by us,
we may confinue to serve such Account{s) on a month-to-month holdover basis. During such holdover term, we will calculate your invoice as follows: (Each
Accounts metered usage, as adjusted by the applicable line loss factor) fmes (the applicable |SO-published Day Ahead Locational Based Marginal Price
("LMP") + $.005250/kWh) + (a pass through of all costs and charges incurred for the retail delivery of energy 0 you) + Taxes, This Agreement will coninue tp
govern the service of such Accounts during such holdover term, Either party may terminate the holdover farm at any fime within its discretion at which ime we
will drop each Account as of the nextpossible meter read date to the then applicable tariff service, whether default service or otherwise.

Your Invoice. Your invoice will contain all charges applicable to your electricity usage, including Taxes (which are passed through to you). You will receive
one invoice from the UDC for UDC charges and one invoice from us for all other charges (“Dual Billing") unless we agree otherwise, or your Accounts)
eligibility changes. All amounts charged are due in tull within twenty (20) days of the invoice date, and we reserve the right fo adjust amounts previously
invoiced based upon supplemental or addifonal data we may receive fom your UDC. Your Invoices will be based on actual data provided by the UDC,
provided that if we do not receive actual dafa in a timely manner, we will make a good faith esimate using your historical usage data and ofer
information. Once we receive actual data we will reconcile the esimated charges and adjust them as needed in subsequent invoices, [f you fail fo make
payment by the due dat, interest will accrue daily on outslanding amounts fom the due date until the bill is paid in full at a rate of 1.50% per month, or the
highest rate permitied by law, whichever is less.

Certain Warranties. You warrant and represent that the electricity supplied under this Agreement Is not for use at a residence, For Account(s) located in the
State of New Hampshire, you warrant and represent that your AGGREGATE PEAK LOAD DURING ANY 12 MONTH PERIOD IS GREATER THAN 100
KILOWATTS.

Notices. All notices will be in wring and delivered by hand, cerffed mail, return receipt requested, or by first class mail, or by express carrier fo our
respecive business addresses. Our business address is 1221 Lamar St Suite 750, Houston, TX 77010, Atn: Contracts Administration, Either of us can

change our address by nofice to the other pursuant to this paragraph.

Customer Service. For questons about your invoice or our services, contact us at our Customer Service Department by calling toll-free 888-635-0827, or by
e-mail at CustomerCare@Constellaton.com. Your prior authorization of us to your UDC as recipient of your current and historical energy billing and usage
data will remain in efect during the entire term of this Agreement, including any renewal, unless you rescind the authorization upon written nofce to us or by
calling us at 888-635-0827. We reserve the right to cancel this Agreement in the event you rescind the authorization.

IN THE EVENT OF AN EMERGENCY, POWER OUTAGE OR WIRES AND EQUIPMENT SERVICE NEEDS, CONTACT YOUR APPLICABLE UDC AT:

UDC Name UDC Abbreviation Contact Numbers
Public Service of New Hampshire PSNH 4-800-662-7764

Additional Terms. For Accounts located in the State of New Hampshire:
(i) New Hampshire Public Utilities Commission. Addiional information, including information on consumer rights may be obtained by contacting the New
Hampshire Public Uiliies Commission at (800) 852-3793 or by visiing the New Hampshire Public Utliies Commission Consumer page. The Consumer Page

website address is htip:/Avww.puc.state.nh.us/Consumer/consumer.htm.
(ii) Telemarketing. If you do not wish to receive telemarketing calls, you may contact the Telephone Preference Service of the Direct Markefing Association and

request io be put on a “do-notcall’ list The Direct Markefng Associafon website address is: _hitp//www.dmaconsu mers.org/offielephonelisthtml,
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]

FOR INTERNAL USE ONLY
©2016 Constellation Energy Resources, LLC Allrights reserved.
Errors and omissions excepied, Std. Short Form_v.2010 Rev Mar-01-2016 ()

Sales Rep: Craig Brazel 117636.46911.0 Printed: 9/15/2016
Page - 2- of 12

Each party has caused this Agreement to be executed by its authorized representative on the respective dates written below.

Constellation NewEnergy, Inc.

Bro T Sorat
David T. Donat
Vice President

2016-09-15
14:58-05:00

Name:
Title:

Address: 1221 Lamar St Suife 750
Houston, TX 77010
Atn: Contracts Administration
Fax: 888-829-8738
Phone: 888-635-0827

Customer:

Names S/O apes L/ be boneticcé

Title:
Dats: Calica

Address: 229 MAIN ST
NASHUA, NH 030602938

_ say - SYHSO

Fax: 6o3
Phin Go2-SYI-32Go
Email:

DonchesstT a nacsluanls

FOR INTERNAL USE ONLY

©2016 Constellation Energy Resources, LLC Allrights reserved.
Errors and omissions excepted. Std. Short Form_v.2010 Rev Mar-01-2016
Sales Rep: Craig Brazel 117636.46911.0

i)

Printed: 9/15/2016

Page -3- of 12

j qv

General Terms and Conditions

1. Definitions.

“Ancillary Services And Other |SO Costs” means for any billing period the
applicable charges regarding ancillary services as set forth in the applicable
ISO Open Access Transmission Tarif ("OATT") and for other ISO costs not
otherwise included in any of the defined cost components in this Agreement
We will reasonably determine your Accounts monthly Ancillary Services And
Other 1SO Costs based on the Accounts $/kWh share of costs for Ancillary
Services And Other ISO Costs or otherwise reasonable allocafion method as
we may detgrmine from time to time based on how Ancillary Services And
Other |SO Costs are assessed by the ISO,

“Auction Revenue Rights” means revenue credits resuling from the annual
financial transmission rights aucion conducted by the ISO that are applicable
with respect transmission peak load contibuton..

“Capacity Costs” means a charge for fulfilling the capacity requirements for
the Accounts) imposed by the ISO or otherwise.

“Energy Costs” means a charge ior the cost lems included in the locatonal
Marginal Price for the ISO zone identified in the Account Schedule

“FERC Order 745 Costs” means any costs or charges imposed by the ISO in
accordance with complying with the provisions of Federal Energy Regulatory
Commission ("FERC") in Order No. 745 18 CFR Part 35 (March 15, 2011).
Any modifications or conditions to the treatment of FERC Order 745 Costs
under the ISO ‘tariff or otherwise shall be deemed a change in law pursuant to
Secion 5 of the General Terms and Conditions of this Agreement

“$0” means the independent system operator or regional transmission
organization responsible for the service territory governing an Account, or any
successor or replacement entity.

“Line Loss Costs” means the costs (to the extent not already captured in the
applicable Energy Costs) applicable io each Account based on the kWh
diference between the UDC metered usage and the ISO setlement
volumes. If Line Loss Costs are “Fixed,” the Line Loss Costs are included in
the Energy Costs and will not be invoiced as a separate line item. if Line Loss
Costs are “Passed Through,” the Line Loss Costs wil be invoiced as a
separate line lem and calculated based on the applicable fixed price or
locational marginal price for the corresponding usage,

“Non Time Of Use” or “NTOU” means all hours of each day.

“Off Peak” means all hours other than Peak hours.

“Peak” means the hours designated as peak from time fo ima by the UDC.
“Renewable Portfolio Standards Costs” means the costs associated with
meefng renewable portolio standards costs at the levels required by currently
applicable Law. If Renewable Portolio Standards Costs are not included in
the contract price, such costs for a parfcular month will be the product of (i)
fhe Monthly RPS Price; and (i) an Accounts monthly kWh usage. The
Monthly RPS Prica is the price of renewable portfolio standards compliance
for the Account for a paricular month, fixed by reference fo the renewable
portolio standards forward price curve for the state where the Account is
located.

“Taxes” means all federal, state, municipal and local faxes, dufes, fees,
levies, premiums or other charges imposed by any governmental authority,
directly or indirecty, on or with respect fo the electricity and related products
and services provided under this Agreement, including any faxes enacted
afer the date we entered into this Agreement

“Transmission Loss Credits” means the credit amounts applicable to the
Accounts under the ISO's marginal loss construct.

“UDG” means your local electic distribution utlity owning and/or controlling
and maintaining the distibufon system required for delivery of electicily to
the Accounts.

"UDC Charges” means all UDC cosis, charges, and fees, due under UDC's
delivery services rates associated with your use of UDC’s distribufon network,
all as defined by the UDC farifs, and any similar or related charges the UDC
may impose from time to time

“Winter Reliability Program Costs" means those cosis or charges that are
incurred by load serving enfifes in the NE ISO service territory under the NE
ISO's “Winter Reliability Program’ as proposed or implemented during the
fermof this Agreement If Winter Reliability Program Costs are fixed under
this Agreement, any material addifons, modifcaions or conditions to the
treatment of Winter Reliability Costs under the NE ISO tariff or otherwise fom
the applicable Winter Reliability Program as last accepted or approved by
FERC (or, if not yet accepted or approved, as last proposed by the NE ISO)
as of the date of this Agreement shall be deemed a Change in Law pursuant
fo Section 5 below,

2, Cash deposit and other security. At any ime, we may require that you
provide Information fo us so that we may evaluale your creditworthiness, We
reserve the right fo require that you make a cash deposit or provide other
security acceptable to us if your financial obligations tp us increase under this
Agreement, or if, in our opinion, your credit, payment history, or ability to pay
your bills as they come due becomes a concern. You will deliver any required
cash deposit or other required security (or any increase therein) within three
(3) business days of our request

3, Default under this Agreement. You will be in default under this
Agreement if you fail o: pay your bills on ime and in full; provide cash
Geposis or other security as required by Section 2 above; or perform all
material obligations under this Agreement and you do not cure such default
within 5 days of writen nofice from us; or if you declare or file for bankruptry
or otherwise become insolvent or unable to pay your debts as they come due.
We will be in default under this Agreement if we fail to perform all material
obligations under this Agreement and do not cure such default within 5 days
writen notice from you, or if we declare or file for bankruptcy or otherwise
become insolvent or unable fo pay our debls as they come due.

4. Remedies upon default. If you are in default under this Agreement, in
addiion to any other remedies available to us, we may terminate this
Agreement entirely, or solely wih respect to those Accounts adversely
afiected by such default, and switch your Account{s) back t UDC service
(consistent with applicable regulations and UDC practices); and/or require that
you compensate us for all losses we sustain due to your default, including the
following:

. payment of all amounts you owe us for electricity provided fo you

' when the Agreement is terminated early (entirely or as t certain
Accounts), payment of an amount (that we will calculate using our reasonable
judgment) equal fo the positive diference between (A) the dollar amount you
would have paid to us under this Agreement had it not been terminated early
and (B) the dollar amount we could resell such electricity for to a third party
under then-current market conditions; and

' all costs (incuding attorneys’ fees, expenses and court costs) we
incur in collecing amounts you owe us under this Agreement

The paries agree that any early termination payment determined in
accordance with this Section is a reasonable approximation of harm or loss,

FOR INTERNAL USE ONLY

©2016 Constellation Energy Resources, LLC Allrights reserved.
Errors and omissions excepted. Std. Short Form_v.2010 Rev Mar-01-2016
Sales Rep: Cralg Brazell 117636.46911.0 Printed: 9/45/2016

Page -4- of 12

and is not a penalty or punitive In any respect and that neither party will be
required i enter into a replacement transaction in order to determine or be
enifled fo a termination payment

5. Changes in law. We may pass through or allocata, as the case may be, fo
you any increase or decrease in our costs related to the electicity and related
producis and services sold fo you that resulls from the implemeniation of new,
or changes (including changes io formula rate calculafons) fo existing, Laws,
or other requirements or changes in administration or interpretation of Laws or
olher requirements. "Law" means any law, rule, regulation, ordinance, statute,
judicial decision, administrative order, ISO business practices or protocol,
UDC or ISO tartf, rule of any commission or agency with jurisdiction in the
sale in which the Accounts are located. Such additonal amounts will be
included in subsequent invoices io you. The changes described in this Section
may change any or all of the charges described in this Agreement, whether
described as “fixed," "variable," "pass-through" or otherwise. Your frst bil
reflecing increased costs will include a bill insert describing the Increase in
cos in reasonable detail.

6. Events beyond either of our reasonable control. ifsomething happens
that is beyond either of our reasonable control that prevents either of us from
performing our respecive obligations under this Agreement, then whichever
one of us cannot perform wil be relieved from performance until the situation
is resolved. Examples of such events include: acts of God, fre, flood,
hurricane, war, terrorism; declaration of emergency by a governmental entity,
the ISO or the UDC; curtailment disruption or interrupfon of electricity
transmission, distibuion or supply; regulatory, administrative, or legislative
action, or action or restraint by court order or other governmental entity;
acions taken by third parties not under your or our contral, such as the !SO or
a UDC. Such events shall not excuse failure to make payments due in a
fmely manner for electricity supplied to you prior to such event Further, if
such an event prevents or makes it impossible or impracticable for the
Claiming party > carry out any obligation under this Agreement due to the
events beyond either of our reasonable control for more than 30 days, then
whichever one of us whose performance was nef prevented by such events
shall have the right 0 terminate the Agreement without penalty upon 30 days’
writen notice to the other.

7, UDC or ISO obligations. We will have no liability or responsibility for
maters within the control of the UDC or the !SO-controlled grid, which include
maintsnance of electric lines and systems, service interruptions, loss or
termination of service, deterioration of electic services, or meter readings. .

8. Limitation on Liability. IN NO EVENT WILL EITHER PARTY OR ANY
OF ITS RESPECTIVE AFFILIATED COMPANIES BE LIABLE FOR ANY
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE
DAMAGES, INCLUDING, WTHOUT LIMITATION, LOST OPPORTUNITIES
OR LOST PROFITS. Each party's total liability related fo this Agreement,
Whether arising under breach of contract, tort, strict liability or otherwise, will
be limited to direct, acual damages. Direct, aclual damages payable to us will
reflect the early termination payment calculaion in Secion 4. Each party
agrees fD) use commercially reasonable efforts to mitigate damages it may
incur. NO WARRANTY, DUTY, OR REMEDY, WHETHER EXPRESSED,
IMPLIED OR STATUTORY, ON OUR PART iS GIVEN OR INTENDED TO
ARISE OUT OF THIS AGREEMENT, INCLUDING ANY WARRANTY OF

MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
USE.

9, DISPUTE RESOLUTION, THIS AGREEMENT WLL BE GOVERNED BY
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE
IN WHICH ANY ACCOUNT IS LOCATED, WTHOUT GIVING EFFECT TO
ANY CONFLICTS OF LAW PROVISIONS, AND ANY CONTROVERSY OR
CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT WILL BE
SETTLED IN ACCORDANCE WITH THE EXPRESS TERMS OF THIS
AGREEMENT BY A COURT LOCATED IN SUCH STATE. IF THE MATTER
AT ISSUE INVOLVES ACCOUNTS OR MATTERS IN MORE THAN ONE
STATE, THE GOVERNING JURISDICTION AND VENUE SHALL BE
DEEMED TOBE NEW YORK. TO THE EXTENT ALLOWED BY
APPLICABLE LAW, WE ALSO BOTH AGREE IRREVOCABLY AND
UNCONDITIONALLY TO WAIVE ANY RIGHT TO A TRIAL BY JURY OR TO
INITIATE OR BECOME A PARTY TO ANY CLASS ACTION CLAIMS WITH
RESPECT TO ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,

10. Relationship of Parties. We are an independent contractor, and nothing
in this Agreement establishes a joint venture, fiduciary relationship,
partnership or other joint undertaking. We are not acting as your consultant or
advisor, and you will not rely on us in evaluating the advantages or
disadvantages of any specific product or service, predictions about fulure
energy prices, or any other matter. Your decision ‘o enter into this Agreement
and any ofher decisions or actions you may ‘ake is and will be based solely
upon your own analysis (or that of your advisors) and not on information or
statements from us.

11, Confidentiality. Consistent with applicable regulatory requirements, we
will hold in confidence all information obtained by us ‘tom you related fo the
provision of services under this Agreement and which concern your energy
characterisfics and use palierns, except that we may, consistent with
applicable law and regulation, disclose such information to our affiliates and
such afiliates’ employees, agents, advisors, and independent contractors.
Except as otherwise required by law, you will agree to keep confdental the
terms of our Agreement, including price.

12. Miscellaneous Provisions. If in any circumstance we do not provide
notice of, or object , any default on your part, such situation will not
constitute a waiver of any future default of any kind. If any of this Agreement
is held legally invalid, the remainder will not be affacied and will be valid and
enforced to the fullest extent permitiad by law and equity, and there will be
deemed substituted for the invalid provisions such provisions as will most
nearly carry out our mutual intent as expressed in this Agreement You may
not assign or otherwise transfer any of your rights or obligations under this
Agreement without our prior writen consent. Any such attempted transfer wil
be void. We may assign our rights and obligations under this Agreement
This Agreement contains the entire agreement between both of us,
Supersedes any other agreements, discussions or understandings (whether
writen or oral) regarding the subject mater of this Agreement, and may not
be contradicied by any prior or contemporaneous oral or writen agreement
A facsimile or e-mailed copy with your signature will be considered an original
for all purposes, and you will provide original signed copies upon request
Each party authorizes the other parly to afix an ink or digital stamp of its

FOR INTERNAL USE ONLY

©2016 Constellaion Energy Resources, LLC Allrights reserved.
Errors and omissions excepted. Std. Short Form_v.2010 Rev Mar-01-2016 ()
Sales Rep: Craig Brazel 117636.46911.0 Printed: 9/15/2016

Page - § - of 12