|
|
|
PUC CERTIFICATION NO. 10064 |
1.11.22.1
2.22.32.4
2.53.14.15.1
5.2 5.36.16.2
7.18.19.110.1
11.111.211.311.4
11.511.611.7
|
1.1 TERM.
This Agreement shall become effective on the Contract Date 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.
|
1.2 RENEWALS AND TERMINATION.
(a) REP will notify Customer 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 determines it is interested in terminating this Agreement for cause, including material default by REP or REP’s failure to maintain its REP certification in good standing, Customer shall notify BP Energy Company (“BPEC”) [via facsimile at 281-366-0203 (Contract Services-Power) and 281-366-7583 (Legal-Power)] of its intent at least thirty days prior to the effective date of such termination with a copy to TriEagle. Upon receipt of this notice, BPEC may compel the direct assignment of this Service Agreement to it from REP and Customer agrees upon such notification by BPEC, it shall not have any right to terminate the Agreement. Failure by BPEC to provide this notice to Customer will result in the termination of this Agreement on the date noticed by Customer subject to REP’s rights and remedies, if any.
(d) 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.
(e) 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.
(f) 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 2.3(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).
|
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. In the event this Agreement has been transferred to BPEC, Customer authorizes BPEC to act as its Retail Electric Provider for all purposes and acknowledges BP shall have no responsibility for payment of any outstanding debts owed by Customer to the TDSP.
|
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.
|
 l l l l l l l l l TOP l l l l l l l l l
|
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.
|
2.3(a) FUEL ADJUSTMENT RATE (FAR).
A variable Fuel Adjustment Rate is calculated monthly, in cents per kWh, 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 variable FAR may increase or decrease from month to month, based on changes in the published monthly close price of NYMEX natural gas. The FAR will either be an addition to or a discount against the fixed Base Rate.
|
2.4 ADDITIONAL PASS THROUGH CHARGES OR CREDITS.
The TriEagle Energy Electric Rate does not include any costs associated with the implementation of a Nodal Management Congestion System. 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.
|
2.5 MATERIAL CHANGES TO TERMS OF SERVICE.
TriEagle Energy will provide you with notice 45 days in advance of any material change in this Agreement. Material Changes may include but are not limited to any additional charges related to ERCOT market structure changes. Upon receiving notice, you have the right to decline the change and choose another REP. The changes will become effective on the date stated in the notice unless you cancel your Agreement, in writing, and said notice is received in our office no later than 10 calendar days prior to the effective date of the change. There is no penalty for canceling the Agreement if you do so solely because of a material change in this Agreement. If any statement, term or agreement conflicts with this Section 2.4, whether express or implied, and whether made prior to, contemporaneously with, or subsequent to the Effective Date, this Section 2.4 shall control unless revoked or limited by express reference.
|
2.6 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.
|
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.
|
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.
|
5.1 BILLING, PAYMENT, AND INTEREST.
All amounts paid pursuant to this Agreement shall be to a lockbox account. Customer shall not pay REP directly or to a different account without written instructions to do so from BPEC.
(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 Section 1.2 herein 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. Any security deposits shall be kept in a separate account and shall not be commingled with REP’s funds.
|
l l l l l l l l l TOP l l l l l l l l l
|
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.
|
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.
|
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.
|
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.
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.
|
8.1 NOTICES.
Notices shall be given as provided herein to the designees listed at the end of this 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.
|
l l l l l l l l l TOP l l l l l l l l l
|
9.1 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.
|
10.1 BPEC's RIGHTS AS COLLATERAL ASSIGNEE.
Customer acknowledges that REP has pledged this Agreement to BPEC as collateral to secure REP’s ability to buy the products delivered hereunder at a more cost effective rate. Therefore, Customer hereby consents to the foregoing collateral assignment and any outright transfer of this Agreement to BPEC by REP upon receipt by Customer of written notice to such effect. CUSTOMER ACKNOWLEDGES AND AGREES THAT BPEC WILL NOT BE LIABLE FOR PERFORMANCE HEREUNDER PRIOR TO THE EFFECTIVE DATE OF THE TRANSFER OF THIS AGREEMENT TO BPEC.
|
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 Harris County, Texas or as agreed to by the Parties.
|
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 Harris County, Texas.
|
11.3 CONFIDENTIALITY.
Neither Party shall disclose the terms of this Agreement to any third party (other than such party’s employees, lenders, counsel, accountants or other advisors) except in order to comply with any applicable law, order, regulatory or exchange rule, or the collateral assignment by REP to BPEC.
|
11.4 ENTIRE AGREEMENT.
This Agreement and all attachments 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.
|
11.5 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.
|
11.6 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.
|
11.7 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 “COMMERCIAL CONTRACT” BY A DULY AUTHORIZED REPRESENTATIVE. UNDER THE MARKET RULES, IF CUSTOMER IS LESS THAN 50 KW, THEN CUSTOMER HAS UNTIL MIDNIGHT OF THE THIRD FEDERAL BUSINESS DAY FOLLOWING SUCH SIGNATURE (AND RECEIPT OF REP’S ELECTRICITY FACTS LABEL, TERMS OF SERVICE AGREEMENT AND “YOUR RIGHTS AS A CUSTOMER” STATEMENT, WHICH ARE PROVIDED HEREWITH) IN WHICH TO PROVIDE NOTICE TO REP THAT CUSTOMER ELECTS TO RESCIND, WITHOUT CHARGE OR PENALTY, THIS AGREEMENT. NO SIGNATURE BY SELLER IS REQUIRED; PROVIDED HOWEVER, THAT THIS AGREEMENT WILL NOT BECOME BINDING UPON REP UNTIL COMPLETION OF A CREDIT CHECK OF CUSTOMER WHICH IS COMPLETELY SATISFACTORY TO REP. IF THIS DOES NOT OCCUR, OR IF CUSTOMER DOES NOT PROVIDE THE CREDIT SUPPORT REP REQUIRES, REP WILL PROVIDE CUSTOMER WRITTEN NOTICE THEREOF WITHIN NOT MORE THAN FIFTEEN (15) BUSINESS DAYS FROM THE EFFECTIVE DATE AND THIS AGREEMENT WILL BE VOID AND OF NO EFFECT, WITHOUT LIABILITY TO EITHER PARTY. |
V7woBSCCrccBPECNodal111008
|
|
|
|
 |
|
|
