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5.02 5.2 AGREEMENTS\Direct Energy—Natural Gas thru MEGA Program—6-1-19 thru 5-31-21 -4-1-19 RESOLUTION AUTHORIZING AGREEMENT BETWEEN TOWN OF QUEENSBURY AND DIRECT ENERGY BUSINESS MARKETING, LLC DB/A DIRECT ENERGY BUSINESS FOR POWER SALE-NATURAL GAS-THROUGH MEGA PROGRAM RESOLUTION NO.: ,2019 INTRODUCED BY: WHO MOVED ITS ADOPTION SECONDED BY: WHEREAS, by Resolution No.: 51,2015, the Queensbury Town Board authorized an Agreement through the Municipal Electric & Gas Alliance (MEGA) Program with Direct Energy Business Marketing, LLC d/b/a Direct Energy Business (Direct Energy Business) for June 1, 2015 through May 31, 2017 in an effort to reduce natural gas costs and by Resolution No.: 133,2017 again authorized an Agreement with Direct Energy Business for June 1, 2017 through May 31, 2019, and WHEREAS, the Town wishes to again enter into an Agreement through the MEGA Program with Direct Energy Business commencing June 1, 2019 through May 31, 2021 at the Fixed Price of $3.848 per Dth as set forth in Direct Energy Business' proposed Agreement presented at this meeting, NOW,THEREFORE,BE IT RESOLVED, that the Queensbury Town Board, in a continuing effort to reduce energy costs, hereby authorizes the Agreement between the Town of Queensbury and Direct Energy Business Marketing, LLC d/b/a Direct Energy Business commencing June 1, 2019 through May 31, 2021 at the Fixed Price of$3.848 per Dth substantially in the form presented at this meeting and authorizes and directs the Town Supervisor to execute the Agreement and/or any other needed documentation,and BE IT FURTHER, RESOLVED, that the Town Board further authorizes and directs the Town Supervisor, Budget Officer and/or Water Superintendent/ Wastewater Director to take such other and further action as may be necessary to effectuate the terms of this Resolution. Duly adopted this 1 S`day of April,2019,by the following vote: AYES : NOES : ABSENT : 2 ir „, Businesses. NEW YORK CUSTOMER DISCLOSURE Price Fixed Price : $3.848 per Dth Variable Price : $0.966 per Dth Fixed or Variable and, if Fixed\Nymex: Refer to Purchase Price on Transaction variable, how the price Confirmation and Special Provisions section on is determined Transaction Confirmation. Length of the 24 Months agreement and end date Process customer may use to rescind the Rescission without penalty not permitted agreement without penalty Amount of Early Non-defaulting party has the right to terminate and Termination Fee and liquidate all Transactions, calculate a settlement amount method of calculation by calculating the Close-Out Value for each Transaction and aggregate all amounts owing - See section 12 for more information Amount of Late Interest will be assessed on the late balance at the lower of Payment Fee and 1.5% per month or the maximum amount permitted by law- method of calculation See Section 4 for more information Provisions for renewal Automatically renews in successive one-month terms of the agreement unless affirmatively renewed or terminated by either party. Conditions under which Savings compared to the Host Utility rate are not savings to the customer guaranteed. are guaranteed p rect Direct Energy Business Marketing, LLC d/b/a Direct Energy Business 194 Wood Avenue South, Second Floor, Business Iselin, NJ 08830 Proposal Id 55160721 Phone: 1-888-925-9115 business.directenerqv.com Marketer Name Loucks, Todd Date 2/25/2019 Time 3:15:15PM � ir?.?v+ `. f,`', a '• i-s cups" T a "r °ss._ f's - n�s..,l„s ?.va-z �,;... :.` .`?:' � Customer Name Queensbury, Town of El New x Renewal Contact Name John Strough Billing Contact Address 823 Cornith Rd Billing Address 51 Quaker Rd QUEENSBURY, NY QUEENSBURY, NY 12804 12804 Telephone Fax Telephone Fax Email ATU GA a :NSA O ATIO N cUSTO SCLLOT R . This Transaction Confirmation confirms the terms of the Gas Transaction entered into between Direct Energy Business Marketing, LLC d/b/a Direct Energy Business ("Seller"), and the customer above ("Buyer" or "Customer") pursuant to the terms of the Commodity Master Agreement ("CMA") between Buyer and Seller dated February 25, 2019 as may be amended. The Purchase Price excludes Utility distribution charges and Taxes that are or may be the responsibility of Buyer. Gas volumes will be adjusted for Utility line loss, where applicable. The prices listed below are based on market conditions as of the time, stated above, that this Transaction Confirmation was issued and may be adjusted by Seller to reflect market conditions as of the date it is executed and returned by Buyer. THIS TRANSACTION CONFIRMATION WILL NOT BE EFFECTIVE UNTIL SIGNED BY BOTH PARTIES. Service Locations Service Address Utility Account No Rate (Additional pages may be attached if necessary) 823 CORINTH RD 26991-71001 SC-2 823 CORINTH RD 56906-32006 SC-2 51 QUAKER RD 34914-34106 SC-2 1153 STATE ROUTE 9 07770-65004 SC-2 4 WILLOWBROOK DR 08371-39018 SC-2 20 WEEKS RD 03071-68010 SC-2 21 QUAKER RD 64714-33106 SC-2 742 BAY RD 65825-78109 SC-2 81 GLENWOOD AVE 98114-33109 SC-2 823 CORINTH RD 80904-54003 SC-2 Delivery Period Begin: 06/01/2019 End: 05/31/2021 The service start date hereunder will be the date that the Utility enrolls Customer for Seller's service. Seller will request the Utility to enroll Customer on the first meter read date within the Delivery Period. Upon the expiration of the Delivery Period, this Transaction shall continue for successive one month terms (collectively the "Renewal Term") until either Party notifies the other Party in writing of its intention to terminate, at least 15 days prior to (1) the end of the Delivery Period or (2) during the Renewal Term, the earlier of the end of each successive month Renewal Term or the next cycle read date. After notice is given as contemplated in the previous sentence, the date of termination ("Termination Date") shall be the next effective drop date permitted by the Utility. The Purchase Price for delivery to the Delivery Point during the Renewal Term or for any period outside of the Delivery Period, shall be the then Market Price for delivery to the Delivery Point, unless otherwise agreed to in writing. Delivery Point National Grid (Upstate)/NGRID CNE07 MO DTI Contract Buyer and Seller agree that the Contract Quantity purchased and received Quantity (Dth) means a positive volume up to or greater than the estimated quantities listed below, provided, that for purposes of determining whether a Material Usage Deviation has occurred and for purposes of calculating Contract Quantities remaining to be delivered under Section 12 of the Agreement, Contract Quantity shall be determined by reference to the applicable estimated quantity(ies) listed below. Daily x Monthly June 257 December 1,327 July 253 January 1,503 August 253 February 1,266 September 299 March 1,135 October 639 April 664 November 965 May 364 Purchase Price Please initial option desired: Fixed Price : $3.848/Dth Nymex Plus :$0.966 /Dth Special For inquiries related to your purchase, or for any other questions or complaints Provisions against Seller, please contact Seller at the address above. For general inquiries related to the sale and delivery of Gas you may contact the New York Public Service Commission, Department of Public Service ESCO hotline at 1-888-697-7728; write the PSC at the Office of Consumer Education & Advocacy, Three Empire State Plaza, Albany, NY 12223, or visit the PSC's website at http://www.dps.state.ny.us. Buyer represents and acknowledges that: (a) any rights to a rescission period, longer grace periods or notice periods afforded to residential Buyers do not apply; and (b) upon any discontinuance of service by Seller, Seller will return Buyer to full Utility service by the next effective drop date permitted by the Utility, upon at least fifteen (15) days prior notice, provided that the utility has not already disconnected delivery of the service. If the Utility disconnects delivery of the service, then, effective immediately, Seller will not be responsible to provide Gas or any service under this Transaction. Buyer represents and warrants that (i) it will provide, to Seller, information reasonably required to substantiate its Gas usage, including information regarding its business, locations, meter/account numbers, historical/projected usage, time of use, hours of operation, utility rate classes, agreements, schedules, which in substantial part form the basis for the calculation of charges for the Transaction hereunder; (ii) acceptance of this Transaction Confirmation constitutes an authorization for release of such usage information; (iii) it will assist Seller in taking all actions necessary to effectuate transactions, including, if requested, executing an authorization form permitting Seller to obtain its usage information from third parties; (iv) the usage information provided is true and accurate as of the date furnished and as of the effective date of the Transaction; (v) it may rescind the authorization for release of such information at any time, upon prior written notice; provided however, that such rescission will be considered an Event of Default by Buyer under Section 11(iv) of the CMA; and (vi) neither it, nor any transaction, has been solicited through "door-to-door sales" (as such term is defined under the Uniform Business Law § 349-d, and Buyer acknowledges that this representation is a material inducement to Seller entering into this Transaction. *According to the State of New York Public Service Commission's Uniform Business Practices residential Buyers have the right to cancel a sales agreement, without penalty, within three business days after its receipt. **According to the State of New York Public Service Commission's Uniform Business Practices and the State of New York General Business Law § 349-d for transactions solicited through "door-to-door sales" Buyers may not be charged a termination or early cancellation fee in excess of the greater of: (i) $100 if the remaining term is 12 months or less and $200 if the remaining term exceeds 12 months, or (ii) twice the estimated commodity supply bill for an average month, provided that an estimate of an average monthly bill was provided to the Buyer when the offer was made by the Seller along with the amount of any early termination fee based on such estimate. NYMEX Plus with Trigger: For each month of the Delivery Period, the Purchase Price for the Contract Quantity, subject to the Gas Settlement Adjustment provision, will equal a fixed Basis charge of$0.966/Dth, plus the Commodity charge for that month. Unless the Commodity charge has been set by agreement of the Parties in accordance with the instructions detailed below, the Commodity charge shall be the per Dth price equal to the settlement price on the expiration date for that month's New York Mercantile Exchange Henry Hub natural gas futures contract ("NYMEX Contract"). Buyer may fix the Commodity charge for blocks of Commodity through a Buyer-initiated trigger process ("Trigger Order"). Trigger Orders may be initiated for a specific individual month ("Monthly Order") or for a specific set of contiguous months within the duration of the Delivery Period ("Strip Order"). Trigger Orders are filled on a best efforts basis during operating hours. The Commodity charge may be fixed by agreement of the Parties at any time prior to 1:00 PM on the expiration date of the applicable month's NYMEX Contract. Buyer acknowledges that the Commodity charge may be set (fixed) for a period up to, but in no event beyond the "Max Commodity Date". The Max Commodity Date is defined as the latest date up to which the Parties may fix the Commodity charge, and is posted on your online account portal. Seller reserves the right to amend these date restrictions at its sole discretion. Buyer's "Responsible Trigger Contact(s)" have been identified as John Strough [JohnS@queensbury.net]. Seller will generate a confirmation to be sent to Buyer's Responsible Trigger Contact each time the Commodity charge is fixed ("Trigger Confirmation"). Each such Trigger Confirmation will be made a part of, and is not a replacement for, this Transaction Confirmation. All orders are binding upon being filled. Any notices regarding Trigger Confirmations must be sent to trigger@directenergy.com. Changes to the Responsible Trigger Contact must be communicated in writing through your Direct Energy Business Development Manager. Change in Utility Account Numbers: The account number for a Service Location shall be the Utility Account Number set forth in the Service Locations section above or as attached, as applicable, or any replacement account number issued by the Utility from time to time. Fixed Price: The Purchase Price for the Contract Quantity, unless otherwise specified in this Transaction Confirmation is $3.848 /Dth. Buyer acknowledges that it is acting for its own account, and that it has made its own independent decisions with respect to this Transaction Confirmation and that Seller is not acting as a fiduciary, financial, investment or commodity trading advisor for it in connection with the negotiation and execution of this Transaction. Full Plant Requirement— No GSA Tax Exemption [ ] Non-Exempt Status [ ] Exempt (e.g. Residential, Non-Profit Organization, Manufacturing, Small Business, Agricultural, Resale, etc.) If exempt, must attach certificate. PLEASE SIGN AND RETURN THIS TRANSACTION CONFIRMATION LETTER BY FACSIMILE TO 315-423-0964 BUYER: Queensbury, Town of SELLER: Direct Energy Business Marketing, LLC By: By: d/b/a Direct Energy Business Print Name: Print Name: Title: Title: Date: Date: • Direct Energy.. Business This Commodity Master Agreement ("CMA") among Direct Energy Business, LLC, Direct Energy Business Marketing, LLC d/b/a Direct Energy Business (Collectively "Seller"), each a Delaware limited liability company, and Queensbury, Town of ("Buyer" or "Customer") (each a "Party" and collectively, the "Parties") is entered into and effective as of 02/25/2019 . 1. Transactions: The terms of this CMA apply to all end-use sales of electric power("Electricity") and/or natural gas ("Gas") as applicable (each a 'Commodity" and collectively, the 'Commodities'), by the applicable Seller party to Buyer (each sale a "Transaction") which will be memorialized in a writing signed by both Parties (each a "Transaction Confirmation"). Each Transaction Confirmation shall set forth the Seller party providing service to Customer for such Transaction. If a conflict arises between the terms of this CMA and a Transaction Confirmation, the Transaction Confirmation will control with respect to that particular Transaction. This CMA, any amendments to this CMA and related Transaction Confirmation(s) (together, a single integrated, "Agreement") is the entire understanding between Parties with respect to the Commodities and supersedes all other communication and prior writings with respect thereto; no oral statements are effective. 2. Performance: The Parties'obligations under this Agreement are firm. Buyer is obligated to purchase and receive, and Seller is obligated to sell and provide, the Contract Quantity of Commodity specified in a Transaction Confirmation in accordance with the terms of this Agreement. Buyer will only use the Commodity at the listed Service Locations in the applicable Transaction Confirmation and will not resell the Commodity or use it at other locations without Seller's prior written consent. 3. Purchase Price: Buyer will pay the Purchase Price stated in each Transaction Confirmation. If the Purchase Price incorporates an index and the index is not announced or published on any day for any reason or if the Seller reasonably determines that a material change in the formula for or the method of determining the Purchase Price has occurred, then the Parties will use a commercially reasonable replacement price that is calculated by the Seller. If Seller concludes that a change in any Law(s) increases Seller's costs, the Purchase Price may be adjusted by Seller to reflect such costs. "Law(s)" mean all tariffs, laws, orders, rules, decisions, taxes, regulations, transmission rates, and Utility changes to Buyer's monthly capacity and/or transmission obligations. 4. Billing and Payment: Seller will invoice Buyer for the Actual Quantity of Commodity and for any other amounts incurred by Buyer under this Agreement. Payment is due within fifteen (15) days of the date of the invoice. If an invoice is issued and the Actual Quantity cannot be verified by the time, the invoice will be based on Seller's good faith estimate of the Actual Quantity. Seller will adjust Buyer's account following (i) confirmation of the Actual Quantity, (ii) any Utility discrepancy or adjustment or (iii) any other corrections or adjustments, including adjustments to, or re-calculation of, Taxes. Buyer will pay interest on late payments at 1.5% per month or, if lower, the maximum rate permitted by law("Interest Rate"). Buyer is also responsible for all costs and fees, including reasonable attorney's fees, incurred in collecting payment. "Actual Quantity"means the actual quantity of Commodity that is either delivered or metered, as applicable, to Buyer's account. 'Utility" means a state regulated entity engaged in the distribution of Gas or Electricity. 5.Taxes: Buyer is responsible for paying any Taxes associated with the Actual Quantity of Commodity sold under this Agreement that may become due at and after the Delivery Point. The Purchase Price does not include Taxes that are or may be the responsibility of the Buyer, unless such inclusion is required by Law. Buyer will reimburse Seller for any Taxes that Seller is required to collect and pay on Buyer's behalf and will indemnify, defend and hold Seller harmless from any liability against all Buyer's Taxes. Buyer will furnish Seller with any necessary documentation showing its exemption from Taxes, if applicable, and Buyer will be liable for any Taxes assessed against Seller because of Buyer's failure to timely provide or properly complete any such documentation. "Taxes"means all applicable federal,state and local taxes, including any associated penalties and interest and any new taxes imposed in the future during the term of this Agreement. Liabilities imposed in this Section will survive the termination of this Agreement. 6. Disputes: If either Party in good faith disputes amounts owed under Sections 3, 4, 5 and 8,the disputing Party will contact the non-disputing Party promptly and pay the undisputed amount by the payment due date. The Parties will negotiate in good faith regarding such dispute for a period of not more than fifteen (15) Business Days. In the event the Parties are unable to resolve such dispute, the disputing Party will pay the balance of the original invoice and either Party may exercise any remedy available to it in law or equity pursuant to this Agreement. In the event of a dispute other than for an invoiced amount, the Parties �eiill ilea their hoot oftnrte to menhir:, tha diennto nrmmntly Qrtinnc takan by a Party exarricinn its rnntrartnal rinhts will not he construed as a dispute for purposes of this Section. "Business Day"means any day on which banks are open for commercial business in New York, New York; any reference to"day(s)" means calendar days. 7. Title and Risk of Loss: Title to, possession of and risk of loss to the Commodity will pass to Buyer at the Delivery Point specified in the applicable Transaction Confirmation. 8. Buyer's Usage Obligations A.Material Usage Deviation: If there is a Material Usage Deviation, Buyer will be responsible for the losses and costs,including the costs of obtaining and/or liquidating the applicable volume, based upon the difference between the applicable Contract Quantity and Actual Quantity. Buyer will pay the amount of such losses and costs to Seller within fifteen (15) Business Days of Seller's invoice. 'Material Usage Deviation" means any deviation in Actual Quantity at the Service Location(s) stated in the related Transaction Confirmation from Contract Quantity (or, as applicable, estimated Contract Quantities) stated in that Transaction Confirmation of+/-25%or more, which is not caused by weather.. B.Balancing Charges: For Transactions involving the purchase and sale of Gas only, Buyer will be responsible for Balancing Charges unless Prior Notice of a material variation in usage is provided to Seller and actual usage is consistent with that Prior Notice. 'Balancing Charges" means Utility fees, costs or charges and penalties assessed for failure to satisfy the Utility's balancing and/or nomination requirements. "Prior Notice"is defined as forty-eight(48) hours before the start of the Gas Day for which the material variation in usage will apply. "Gas Day" means a period of 24 consecutive hours as defined by the Utility. Buyer will make any payment due pursuant to this Section within five(5) Business Days of the date of Seller's invoice. C.Curtailments: For Transactions involving the purchase and Sale of Gas only, if Buyer is directed by its Utility to curtail its usage, in whole or in part, Buyer will curtail as directed. If Buyer fails to curtail as directed, Buyer will pay or reimburse Seller for all Balancing Charges assessed by the Utility. Payment by Buyer of any Balancing Charges will be due within five(5) Business Days of the date of Seller's invoice. 9. Force Majeure: A Party claiming Force Majeure will be excused from its obligations under Section 2 as long as it provides prompt notice of the Force Majeure and uses due diligence to remove its cause and resume performance as promptly as reasonably possible. During a Force Majeure, Buyer will not be excused from its responsibility for Balancing Charges nor from its responsibility to pay for Commodity received. "Force Majeure" means a material, unavoidable occurrence beyond a Party's control,and does not include inability to pay,an increase or decrease in Taxes or the cost of Commodity,the economic hardships of a Party, or the full or partial closure of Buyer's'facilities, unless such closure itself is due to Force Majeure. 10. Financial Responsibility: Seller's entry into this Agreement and each Transaction is conditioned on Buyer, its parent, any guarantor or any successor maintaining its creditworthiness during the Delivery Period and any Renewal Term. When Seller has reasonable grounds for insecurity regarding Buyer's ability or willingness to perform all of its outstanding obligations under any agreement between the Parties, Seller may require Buyer to provide adequate assurance, which may include, in the Seller's discretion, security in the form of cash deposits, prepayments, letters of credit or other guaranty of payment or performance ("Credit Assurance"). 11. Default: "Default" means: (i) failure of either Party to make payment by the applicable due date and the payment is not made within three(3)Business Days of a written demand;(ii)failure of Buyer to provide Credit Assurance within two(2)Business Days of Seller's demand; (iii) either Party, its parent or guarantor, becomes Bankrupt or fails to pay its debts generally as they become due;(iv)failure of a Party to satisfy any of its representations and warranties;or(v)failure of a Party to fulfill its material obligations. The Parties will have 15 Business Days following written demand to cure any failures under(iv)or(v), provided that no cure period or demand for cure applies to a default arising under(iii)or any early termination of this Agreement. "Bankrupt" means an entity(a)files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it, (b)makes an assignment or any general arrangement for the benefit of creditors, (c)otherwise becomes bankrupt or insolvent, however evidenced, (d) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, (e) has a secured party take possession of all or any substantial portion of its assets or(f) is dissolved or has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger. 12. Remedies: In the event of a Default,the non-defaulting Party may: (i)withhold any payments or suspend performance;(ii) upon written notice, provided that no notice is required with respect to Section 11(iii) or a breach of Section 13A(c), accelerate any or all amounts owing between the Parties and terminate any or all Transactions and/or this Agreement; (iii) calculate a settlement amount by calculating all amounts due to Seller for Actual Quantity and the Close-out Value for each Transaction being terminated; and/or(iv)net or aggregate,as appropriate, all settlement amounts and all other amounts owing between the Parties and their affiliates under this Agreement and other energy-related agreements between them and their affiliates,whether or not then due and whether or not subject to any contingencies, plus costs incurred, into one single amount ("Net Settlement - Business Days of written notice from the non-defaulting Party. Interest on any unpaid portion of the Net Settlement Amount will accrue daily at the Interest Rate. "Close-out Value" is the sum of(a)the amount due to the non-defaulting Party regarding the Contract Quantities (or, as applicable, estimated Contract Quantities) remaining to be delivered as stated in the applicable Transaction Confirmation(s) during the Delivery Period or, if applicable, the current Renewal Term, calculated by determining the difference between the Purchase Price and the Market Price for such quantities; and(b)without duplication, any net losses or costs incurred by the non-defaulting Party for terminating the Transaction(s), including costs of obtaining, maintaining and/or liquidating commercially reasonable hedges, Balancing Charges and/or transaction costs. "Market Price" means the price for similar quantities of Commodity at the Delivery Point during the Delivery Period or Renewal Term, as applicable. For purposes of determining Close-out Value, (i) Market Price will be determined by the non-defaulting Party in good faith as of a date and time as close as reasonably practical to the date and time of termination or liquidation of the applicable Transaction(s), and (ii) Market Price may be ascertained through reference to quotations provided by recognized energy brokers or dealers, market indices, bona-fide offers from third-parties, or by reference to commercially reasonable forward pricing valuations. The Parties agree that the Close-out Value constitutes a reasonable approximation of damages, and is not a penalty or punitive in any respect. Seller may, but need not, physically liquidate a Transaction or enter into a replacement transaction to determine Close- out Value or Net Settlement Amount. The defaulting Party is responsible for all costs and fees incurred for collection of Net Settlement Amount, including, reasonable attorney's fees and expert witness fees. 13. Representations and Warranties: Each of the following are deemed to be repeated each time a Transaction is entered into: A. Each Party represents that: (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and is qualified to conduct its business in those jurisdictions necessary to perform to this Agreement; (b) the execution of this Agreement is within its powers, has been duly authorized and does not violate any of the terms or conditions in its governing documents or any contract to which it is a party or any law applicable to it; and(c) it is not Bankrupt. B. Buyer represents and warrants that: (a) it is not a residential customer; (b) it will promptly notify Seller of any merger or acquisition of Buyer where Buyer will not be the surviving legal entity; (c)execution of this Agreement initiates enrollment and service for the Delivery Period and any Renewal Term; (d) no communication, written or oral, received from the Seller will be deemed to be an assurance or guarantee as to any results expected from this Agreement; (e) if it is executing this Agreement in its capacity as an agent, such Party represents and warrants that it has the authority to bind the principal to all the provisions contained herein and agrees to provide documentation of such agency relationship, and(f)(i)it will provide,to Seller, information reasonably required to substantiate its usage requirements, including information regarding its business, locations, meter/ account numbers, historical/projected usage, time of use, hours of operation, utility rate classes, agreements, schedules, which in substantial part form the basis for the calculation of charges for the transactions hereunder; (ii) acceptance of this Agreement constitutes an authorization for release of such usage information; (iii) it will assist Seller in taking all actions necessary to effectuate Transactions, including,if requested,executing an authorization form permitting Seller to obtain its usage information from third parties; and (iv)the usage information provided is true and accurate as of the date furnished and as of the effective date of the Agreement. C. Each Party acknowledges that: (a) this Agreement is a forward contract and a master netting agreement as defined in the United States Bankruptcy Code("Code");(b)this Agreement shall not be construed as creating an association,trust, partnership, or joint venture in any way between the Parties, nor as creating any relationship between the Parties other than that of independent contractors for the sale and purchase of Commodity;(c)Seller is not a"utility"as defined in the Code;(d)Commodity supply will be provided by Seller under this Agreement, but delivery will be provided by the Buyer's Utility; and(e) Buyer's Utility, and not Seller, is responsible for responding to leaks or emergencies should they occur. 14.Other: (a)This Agreement, and any dispute arising hereunder, is governed by the law of the state in which the Service Locations are located, without regard to any conflict of rules doctrine. (b) Each Party waives its right to a jury trial regarding any litigation arising from this Agreement. (c) No delay or failure by a Party to exercise any right or remedy to which it may become entitled under this Agreement will constitute a waiver of that right or remedy. (d) Seller warrants that(i) it has good title to Commodity delivered, (ii) it has the right to sell the Commodity, and (iii)the Commodity will be free from all royalties, liens, encumbrances, and claims. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE DISCLAIMED. (e) Buyer will be responsible for and indemnify Seller against all losses, costs and expenses, including court costs and reasonable attorney's fees, arising out of claims for personal injury, including death,or property damage from the Commodity or other charges which attach after title passes to Buyer. Seller will be responsible for and indemnify Buyer against any losses, costs and expenses, including court costs and reasonable attorneys'fees, arising out of claims of title, personal injury, including death, or property damage from the Commodity or other • AGREEMENT FOR CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, LOST PROFITS OR SPECIFIC PERFORMANCE, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. (g)All notices and waivers will be made in writing and may be delivered by hand delivery, first class mail (postage prepaid), overnight courier service or by facsimile and will be effective upon receipt; provided, however, that any termination notice may only be sent by hand or by overnight courier service, and, if sent to Seller, a copy delivered to: Direct Energy Business, Attn: Customer Services Manager, 1001 Liberty Avenue, Pittsburgh, PA 15222, Phone: (888)925-9115; Fax: (866)421-0257; Email: CustomerRelations@directenergy.com. (h) If Buyer and Direct Energy Business Marketing, LLC entered into Commodity transactions prior to the execution of this Agreement ("Existing Transactions"), the Parties agree that these Existing Transactions shall be Transactions governed under the terms of this Agreement. This Agreement supersedes and replaces any other agreement that may have applied to the Existing Transactions. Note that this subsection (h) shall not apply to any Commodity transactions or agreements entered into between Buyer and Direct Energy Business, LLC (i) No amendment to this Agreement will be enforceable unless reduced to writing and executed by both Parties. (j) Seller may assign this Agreement without Buyer's consent. Buyer may not assign this Agreement without Seller's consent;which consent will not be unreasonably withheld. In addition, Seller may pledge,encumber, or assign this Agreement or the accounts, revenues, or proceeds of this Agreement in connection with any financing or other financial arrangements without Buyer's consent; in which case Seller shall not be discharged from its obligations to Buyer under this Agreement. (k) This Agreement may be executed in separate counterparts by the Parties, including by facsimile, each of which when executed and delivered shall be an original, but all of which shall constitute one and the same instrument. (I)Any capitalized terms not defined in this CMA are defined in the Transaction Confirmation or shall have the meaning set forth in the applicable Utility rules, tariffs or other governmental regulations, or if such term is not defined therein then it shall have the well- known and generally accepted technical or trade meanings customarily attributed to it in the natural gas or electricity generation industries, as applicable. (m)The headings used in this Agreement are for convenience of reference only and are not to affect the construction of or to be taken into consideration in interpreting this Agreement. (n)Any executed copy of this Agreement and other related documents may be digitally copied, photocopied, or stored on computer tapes and disks ("Imaged Agreement"). The Imaged Agreement will be admissible in any judicial,arbitration,mediation or administrative proceedings between the Parties in accordance with the applicable rules of evidence; provided that neither Party will object to the admissibility of the Imaged Agreement on the basis that such were not originated or maintained in documentary form. (o)Where multiple parties are Party to this Agreement with Seller and are represented by the same agent, it is agreed that this Agreement will constitute a separate agreement with each such Party, as if each such Party had executed a separate Agreement, and that no such Party shall have any liability under this document for the obligations of any other Parties. (p)This CMA may be terminated by either Party upon at least thirty(30)days' prior written notice; provided, however, that this CMA will remain in effect with respect to Transactions entered into prior to the effective date of the termination until both Parties have fulfilled all of their obligations with respect to the outstanding Transactions. (q) Buyer will not disclose the terms of this Agreement, without prior written consent of the Seller, to any third party, other than Buyer's employees, affiliates, agents, auditors and counsel who are bound by substantially similar confidentiality obligations, trading exchanges, governmental authorities, courts, adjudicatory proceedings, pricing indices, and credit ratings agencies; provided that if Buyer receives a demand for disclosure pursuant to court order or other proceeding, it will first notify Seller,to the extent practicable, before making the disclosure. IN WITNESS WHEREOF,this CMA is entered into and effective as of the date written above. Queensbury, Town of BUYER: SELLER: Direct Energy Business, LLC Direct Energy Business Marketing, LLC By: By: Name: Name: Title: Title: