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PUC CERTIFICATION NO. 10064 |
1.11.21.2a2.12.22.32.42.52.62.73.14.15.15.2 6.16.2
7.18.19.110.111.1
11.211.311.411.5
11.611.7
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1.1 TERM.
This Agreement shall become effective on the Contract Date designated on the Retail Electric Agreement and shall commence on the Utility Transfer Date immediately following such Effective Date and continue for the term as designated on the Retail Electric Agreement and after such date unless terminated pursuant to Paragraph 1.2.
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1.2 RENEWALS AND TERMINATION.
(a) REP will notify Customer at least thirty [30] days prior to expiration of this Agreement and will offer to renew the Agreement under terms and pricing in effect at that time ("Renewal Agreement").
(b) Once this Agreement is executed, if Customer terminates this Agreement without cause, then Customer shall pay to REP all reasonable costs of termination in accordance with Paragraph 7.1 Part (b) of this Agreement.
(c) ) If Customer terminates this Agreement for cause, including, but not limited to, default by REP; REP's failure to maintain its REP certification in good standing; there shall be no penalty to Customer whose monthly demand is greater than 50kW, provided Customer provides thirty (30) days written notice of intent to terminate.
(d) If Customer terminates this Agreement for cause, including, but not limited to, default by REP; REP's failure to maintain its REP certification in good standing; Customer moves to another premise and provides reasonable evidence that it no longer occupies the location specified in the Agreement, and provides a forwarding address; there shall be no penalty to a Customer whose monthly demand is less than 50kW, provided Customer provides thirty (30) days written notice of intent to terminate. For purposes of this Agreement, monthly demand of 50kW is defined as the average monthly peak kW over a 12 month calendar period from January through December.
(e) Upon not less than thirty (30) days prior written notice, REP shall have the right to terminate this Agreement without penalty if Customer defaults on obligations under this Agreement.
(f) REP may terminate this Agreement without penalty if the Utility Transfer Date is delayed for a thirty day (30) period of time for which, in REP's sole discretion, is perceived as unreasonable.
(g) If a Renewal Agreement is not executed prior to the current Agreement's expiration date, your Electric Service Agreement will automatically renew: for a period of twelve (12) months for customers whose monthly demand is greater than 50kW; and month to month for customers whose monthly demand is less than 50kW; and TriEagle Energy will continue to provide electric service based on a rate as described in Section 1.2(a). The automatic renewal rate is for the energy supply only and the customer will be responsible to pay all other applicable costs, including new or changes to: ERCOT market structure changes, such as nodal; ERCOT pass through charges; the transmission and distribution charges, and other related charges from your local TDSP; a customer charge; Public Utility Commission of Texas (PUCT) assessment; and all applicable taxes, including Gross Receipts Tax (GRT).
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1.2(a) FUEL ADJUSTMENT RATE (FAR).
The indexed FAR Rate product has two components: a Base Rate; and a monthly indexed Fuel Adjustment Rate. The first component is the Base Rate, in cents per kWh, and is set for the contract term. The second component is an indexed Fuel Adjustment Rate, in cents per kWh, which is calculated on a monthly basis utilizing the customer's electric usage data for each ESI-ID for the current meter read cycle; the ERCOT assigned Load Profile for each of the customer's ESI-IDs; and the published closing NYMEX Henry Hub natural gas price for the month; minus the Base Natural Gas Price; times the Fuel Factor. The Base Natural Gas Price and the Fuel Factor are set for the contract term. The indexed Fuel Adjustment Rate may increase or decrease for a delivery month, based upon changes in the published monthly NYMEX Henry Hub natural gas futures contract; and will either be an addition to or a discount against the fixed Base Rate.
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2.1 RETAIL ELECTRIC PROVIDER SERVICES.
Customer authorizes, and REP shall: (i) act as Customer's Retail Electric Provider for all purposes; and (ii) provide all services required of a Retail Electric Provider. REP shall have no responsibility for payment of any outstanding debts owed by Customer to the Transmission and Distribution Service Provider ("TDSP") or previous supplier of electricity.
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2.2 SERVICE CHARACTERISTICS.
Service shall be provided in accordance with Customer's existing connection requirements unless Customer requests a change by the TDSP and pays for the cost of that change. Customer shall not use the electric power and energy furnished hereunder as an auxiliary and supplement to any other source of power and shall not resell any capacity or energy purchased hereunder.
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2.3 PRICE.
The price to be paid by Customer to REP for all electricity purchased shall include: the price of the energy supply; ERCOT pass through charges; the transmission and distribution charges, and other related charges from your local TDSP; a customer charge; PUCT assessment; and all applicable taxes, including Gross Receipts Tax (GRT). Customer will be charged based on actual usage, if actual meter readings are available. REP may calculate an invoice based on estimated meter readings in the absence of actual meter readings from the TDSP. Once actual meter readings are received, REP will make adjustments on a subsequent invoice. If a meter has no kWh flow in any month, a fifteen dollar ($15.00) Customer Charge will be applied to that month's invoice.
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2.4 SWITCHING CHARGE.
There is no TDSP charge for an on-cycle switch. An on-cycle switch may occur on your next normally scheduled meter read once an approximately fourteen (14) day wait period has expired after the authorized switch signal has been sent to ERCOT by TriEagle Energy. If a Customer requests an out-of-cycle switch, your TDSP will assess a charge for this service and it will be reflected on your first invoice from TriEagle. This charge will vary from TDSP to TDSP and the charge is subject to change by the TDSP.
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2.5 ADDITIONAL PASS THROUGH CHARGES OR CREDITS.
The TriEagle Energy Electric Rate does not include any costs associated with the implementation of a Congestion Zone structural change or a Nodal Management Congestion System:
(a) If ERCOT implements a Congestion Zone structural change after the date this Retail Electric Service Agreement is executed, TriEagle Energy shall charge or credit the Customer the transmission congestion costs associated with the movement of the customer's ESI-ID(s) from the Congestion Zone they were priced in, to the new Congestion Zone that ERCOT has designated for the customer's ESI-ID(s). Transmission congestion costs are the differences in the Market Clearing Price of Energy (MCPE) between Congestion Zones;
(b) If ERCOT implements a Nodal Congestion Management System after the date this Retail Electric Service Agreement is executed, TriEagle Energy shall charge or credit the 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 the Customer's ESI-IDs are located for each ESI-ID on a 15 minute interval basis, multiplied by the Customer's metered usage (adjusted for line losses) or (ii) such other amount as reasonably determined by TriEagle Energy consistent with the Nodal Congestion Management System.
For purposes 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.
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2.6 MATERIAL CHANGES TO TERMS OF SERVICE FOR RESIDENTIAL AND SMALL COMMERCIAL CUSTOMERS.
TriEagle Energy will provide Residential and Small Commercial Customers with notice 14 days in advance of any material change in this Agreement. Upon receiving notice, the Residential or Small Commercial Customer has the right to decline the change and choose another REP. The changes will become effective on the date stated in the notice unless the Residential or Small Commercial Customer cancels the Agreement, in writing, and said notice is received in our office prior to the effective date of the change. No termination penalty shall apply for 14 days from the date that the notice is sent to the Residential or Small Commercial Customer if termination is solely because of a material change in this Agreement. A termination penalty may apply if the Residential or Small Commercial Customer does not notify TriEagle prior to the expiration of the 14 day notice. Notice is not required for a change that benefits the Residential and Small Commercial Customer.
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2.7 CHANGES IN CONSUMPTION.
Customer acknowledges that the prices offered under this Agreement are based upon Customer's existing meter(s) and forecasted usage pattern(s), which is (are) based upon historical usage pattern(s) and Customer's eligibility for the TDSP's applicable rate schedule as of the Effective Date of this Agreement. Customer agrees to notify REP in advance of any material variances in demand or consumption.
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3.1 TAXES.
Except as otherwise specified herein, Customer is liable for and shall pay all taxes applicable to the sale of capacity and energy incurred by REP for Customer's account. If Customer is a tax-exempt entity, Customer shall provide REP with the necessary certificates and/or documentation to qualify for such status. Customer shall also be liable for all assessments and other charges imposed by the PUCT or any governmental authority, on the sale of electricity by REP to Customer.
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4.1 METERING.
The supply of energy and capacity under this Agreement shall be measured at the delivery point by the TDSP providing the delivery service in accordance with the terms of the applicable tariff for retail delivery service. REP and Customer shall be bound by the measurement from the meters owned, installed, maintained and read by the TDSP.
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5.1 BILLING, PAYMENT, AND INTEREST.
(a) Invoices for sums due shall be rendered monthly in either, or both paper and electronic format, as requested by Customer. Invoices shall be rendered to Customer at Billing Address as specified in the Agreement or at such other address as directed by Customer in writing.
(b) All invoices rendered are due when received and are past due if not paid within sixteen (16) days of the "Date of the bill" (the "Due Date"). If Customer fails to pay all of the amount of any invoice by its "Due Date", unless Customer has provided REP with written notice disputing all or some of the charges prior to the "Due Date", Customer shall pay REP the sum of (i) a penalty equal to 5% on the uncontested and unpaid balance; plus (ii) interest on the uncontested and unpaid balance that shall accrue on each calendar day from the "Due Date" at a rate equal to 1.5% a month or the highest rate allowed by law, whichever is less.
(c) If Customer disputes any invoice or portion thereof, Customer shall do so in writing prior to the "Due Date" and shall provide REP with all substantiation, documentary and otherwise, of the claim. If negotiations between the parties fails to resolve the dispute, then the entire invoice shall be due and owing, and interest shall begin to accrue upon written notice from REP to Customer.
(d) Required security for payment from Customer shall be in the sole discretion of REP and shall be based on REP's good faith evaluation of Customer's financial status and credit history. In no event shall REP require security from Customer in excess of three (3) month's usage. As a Customer of TriEagle, two (2) late payments or one disconnection of service may trigger a request for a security deposit. Any security deposits shall be kept in a separate account and shall not be commingled with REP's funds. Interest will be paid on security deposits at the rate approved by the PUCT (http://www.puc.state.tx.us/rules/subrules/electric/25.478/25.478.pdf). A Customer may be eligible for a refund of their security deposit if the Customer has not had two (2) late payments within a twenty-four (24) month period. If a Residential Customer qualifies for the "Rate Reduction Program, the Customer is eligible to make a required deposit in two equal monthly payments if the deposit exceeds fifty dollars ($50.00).
(e) A fee of thirty dollars ($30.00) per incident will be charged for checks and electronic (ACH) items returned for Non-Sufficient Funds (NSF).
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5.2 DISCONNECTION OF SERVICE.
THE REP MAY DISCONNECT CUSTOMER'S ELECTRIC SERVICE IF CUSTOMER DOES NOT PAY A DEPOSIT OR INVOICE IN FULL BY THE DESIGNATED DUE DATE.. REP will provide Customer with at least ten (10) calendar days prior written notice of our intent to disconnect Customer's electric service pursuant to the terms stated above. REP may disconnect service as early as the first day after the date stated on the disconnection notice; however, the day of disconnect will not be a holiday or weekend day. Customer will be liable for all REP, TDSP fees, applicable taxes and charges associated with any disconnection of service for nonpayment and reconnection. Disconnection for nonpayment shall be in addition to any and all other remedies available in this Agreement or under the law.
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6.1 WARRANTIES.
REP warrants that it will deliver to Customer, Customer's capacity and energy requirements in accordance with this Agreement, free and clear of all liens, claims and encumbrances arising prior to the delivery point or points. Customer shall be deemed to be in exclusive control (and responsible for any damages or injury caused thereby) of the capacity and energy after receipt at the delivery point or points.
OTHER THAN AS SET FORTH IN THIS PARAGRAPH, REP MAKES NO WARRANTIES, EITHER EXPRESSED OR IMPLIED, WITH REGARD TO THE PROVISION OF CAPACITY AND ENERGY AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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6.2 INDEMNITY.
REP AND CUSTOMER SHALL, AND EACH HEREBY DOES, INDEMNIFY, DEFEND, AND HOLD HARMLESS FROM ANY CLAIMS ARISING FROM ANY ACT OR INCIDENT OCCURRING WHEN TITLE TO CAPACITY AND ENERGY IS VESTED IN THE INDEMNIFYING PARTY.
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7.1 OBLIGATIONS.
During the term of this Agreement, REP shall sell and deliver, or cause to be delivered to Customer, and Customer shall purchase and receive, or cause to be received from REP all of Customer's capacity and energy requirements in accordance with the terms and provisions of this Agreement.
(a) REP's payment of damages to Customer for any actionable breach by REP, not excused in writing by the Customer, of REP's electric generation supply obligations shall be limited to the lost savings, if positive, equal to the most economical price available to Customer from the Provider of Last Resort (POLR) or a third party Retail Electric Provider minus the fixed price of energy supply as provided in Paragraph 2.3 times the Customer's energy usage at the corresponding times for the duration of the breach.
(b) Customer's payment of damages to REP for early termination of this Agreement not excused in writing by REP, shall be equal to the contract price for energy supply in ˘/kWh multiplied by average monthly usage for last twelve months multiplied by the number of months remaining on the term of this Agreement and shall include any applicable taxes including but not limited to sales and gross receipts taxes. The methodology for calculating the contract price for energy supply for the "Energy Partner Plan" Rate Plan (FAR) and the Heat Rate Plan will be based on the forward price curve for monthly NYMEX Henry Hub natural gas futures contract. In addition hereto, Customer shall also be liable to REP for payments of all outstanding charges incurred prior to cancellation by Customer.
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8.1 FORCE MAJEURE.
(a)If either Party is rendered unable by Force Majeure to carry out, in whole or in part, its obligations under this Agreement and such Party gives notice and full details of the event to the other Party as soon as practicable after the event, then during the pendency of such Force Majeure, but no longer period, the obligations of the Party affected by the event (other than the obligation to make payments, then due or becoming due with respect to performance prior to the event) shall be excused to the extent required. The Party affected by the Force Majeure shall take all reasonable steps to remedy the effect of the Force Majeure event.
(b) Force Majeure shall mean any act or event that is beyond the reasonable control, and without the fault or negligence of, the Party whose performance under the Agreement is adversely affected, interrupted, or precluded by
the event. A Force Majeure event includes, but is not limited to, an act of God; labor disturbance; act of public enemy;
war; insurrection; riot; embargo; fire; storm; lightning; flood; explosion; breakage or accident due to machinery or equipment; acts of other parties, including ERCOT, aggregators, other Retail Electric Providers, qualified scheduling entities, TDSPs, and the respective employees and agents of such parties; a curtailment order, regulation, or restriction imposed by a governmental, military, or lawfully established civil authority; and any other condition beyond the control and without the fault of either Party.
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9.1 NOTICES.
Notices shall be given as provided herein to the parties or their designees of the Retail Electric Service Agreement and shall be deemed to have been duly delivered if hand delivered or sent by United States certified or registered mail, return receipt requested, postage prepaid, or by Federal Express or similar overnight delivery service.
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10.1 ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit of, and may be performed by the successors and assignees to the Parties except that no assignment, pledge or other transfer of this Agreement by either Party shall operate to release the assignor, pledger, or transferor of any of its obligations under this Agreement. Notwithstanding any other provision of this Agreement, Customer agrees that REP shall have the right to assign this Agreement, together with all rights and obligations hereunder. Nothing in this provision shall deny REP or Customer of any benefits obtained, or relieve them of any obligations, duties, and responsibilities incurred, prior to any assignment under this provision.
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11.1 RESOLUTION OF DISPUTES.
The Parties shall in good faith negotiate all disputes. If negotiations fail, then the Parties may, by mutual agreement, submit the dispute to mediation or may chose to submit the dispute for a final and binding arbitration conducted in accordance with the American Arbitration Association (AAA) by a single arbitrator selected through the procedures of the AAA. Arbitrations shall be held in Montgomery County, Texas or as agreed to by the Parties.
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11.2 GOVERNING LAW.
This Agreement was executed in the State of Texas and shall in all respects be governed by, interpreted, construed and enforced and in accordance with the laws thereof, without regard to principles of conflicts of laws. Venue shall be in Montgomery County, Texas.
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11.3 CONFIDENTIALITY.
Neither Party shall disclose the terms of this Agreement to any third party (other than such party's employees, lenders, counsel, transferees, assignees, accountants or other advisors) except in order to comply with any applicable law, order, regulatory or exchange rule.
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11.4 ENTIRE AGREEMENT.
This Agreement, the Retail Electric Agreement, and all attachments, if any, hereto constitute the entire agreement between the parties relating to the subject matter hereof and supersede any other agreements, written or oral, between the parties concerning the subject matter of the Agreement.
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11.5 ANTIDISCRIMINATION.
A REP cannot deny service or require a prepayment or security deposit for service based on Customer's race, creed, color, national origin, ancestry, sex, marital status, lawful source of income, level of income, disability, familial status, location of a customer in an economically distressed geographic area, or qualification for low income or energy efficiency services. For Residential Customers, a REP cannot use a credit score, a credit history, or utility payment data as the basis for determining the price of electric service for a product with a contract term of twelve (12) months or less.
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11.6 NO WAIVER.
No waiver by either Party of any default by the other Party under this Agreement shall operate as a waiver of a future default whether of a like or different character.
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11.7 SEVERABILITY.
Should any provision of this Agreement for any reason be declared invalid or unenforceable by final and applicable order by a court of any regulatory body having jurisdiction, such decisions shall not affect the validity of the remaining portions, and the remaining portions shall remain in effect as if this Agreement had been executed without the invalid portion. In the event any provision of this Agreement is declared invalid, the Parties shall promptly renegotiate to restore this Agreement as near as possible to its original intent and effect.
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11.8 SURVIVAL.
The provision of this Agreement concerning payment, confidentiality, and indemnification shall survive the termination or expiration of this Agreement.
THIS AGREEMENT WILL BE BINDING UPON CUSTOMER UPON SIGNING THE RETAIL ELECTRIC AGREEMENT BY A DULY AUTHORIZED REPRESENTATIVE. UNDER THE MARKET RULES, IF A CUSTOMER IS RESIDENTIAL OR SMALL COMMERCIAL (LESS THAN 50 KW), THEN THE CUSTOMER HAS UNTIL MIDNIGHT OF THE THIRD FEDERAL BUSINESS DAY FOLLOWING SUCH SIGNATURE (AND RECEIPT OF REP'S ELECTRICITY FACTS LABEL, COMMERCIAL TERMS OF SERVICE AGREEMENT AND YOUR RIGHTS AS A CUSTOMER STATEMENT) IN WHICH TO PROVIDE NOTICE TO REP THAT CUSTOMER ELECTS TO RESCIND, WITHOUT CHARGE OR PENALTY, THIS AGREEMENT. NO SIGNATURE BY REP IS REQUIRED FOR THIS CONTRACT TO BE BINDING ON CUSTOMER, HOWEVER, THE CONTRACT WILL NOT BE BINDING ON REP UNTIL THE CONTRACT IS EXECUTED BY A DULY AUTHORIZED REPRESENTIVE. |
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