HomeMy WebLinkAboutContract 47434JAN 15 2 16
OFFOR~ ORT
m'SE
CONSENT TO ASSIGNMENT AND ASSUMPTION OF AGREEMENT
1. TXU Energy Retail Company LLC, as successor in interest of TXU Energy Services Company,
("Consenting Party") hereby consents to the assignment by Alliance Airport Authority, Inc., as
successor in interest of American Airlines, Inc., (the "Assignor") effective on fi.hnAM'f o; 2Dt5
(the "Date of Assignment"), to the City of Fort Worth (the "Assignee") of all of Assignor's rights
and obligations under that certain Construction and Lease Agreement dated September 25, 1990,
originally between Texas Utilities Electric Company and American Airlines, Inc. and as
subsequently amended (the "Lease Agreement"), a true and correct copy of which is attached
hereto as "Attachment A."
2 . The Consenting Party also hereby consents to Assignee acceding to all rights and obligations of
Assignor under the Lease Agreement and the Consenting Party will not look to Assignor for
performance of the Lease Agreement after the Date of Assignment. This consent does not
constitute the release of Assignor by the Consenting Party with respect to any duties , liabilities, or
obligations that arose prior to the Date of Assignment and Assignor shall remain liable for same.
3. Assignee hereby agrees to assume the duty to perform all of Assignor's obligations under the
Lease Agreement, both monetary and non-monetary, and assume all legal liability for failure to
perform any such obligation as of the Date of Assignment. Assignee agrees that from the Date of
Assignment throughout the term of the Lease Agreement it shall be a full-requirements electric
service customer, directly or indirectly, of the Consenting Party and shall receive all of the
electric power and energy for the Project (as defined in the Lease Agreement) directly or
indirectly from the Consenting Party and shall not receive electric power from any other retail
electric provider. Beginning on the Date of Assignment and continuing throughout the term of
the Lease Agreement, in accordance with the Lease Agreement , Assignee will purchase all
electric power and energy for the Project directly from the Consenting Party, using the
Consenting Party 's then current standard contract form terms and conditions for large commercial
and industrial customers.
4. This consent does not constitute a waiver by the Consenting Party of any rights or a consent to
any subsequent assignment of the Lease Agreement.
5. This Consent shall be governed by, construed, interpreted and applied in accordance with the
laws of the State of Texas, without giving effect to any conflict of laws rules that would refer the
matter to the laws of another jurisdiction.
6. This Consent constitutes the full and complete understanding of the Parties with respect to the
subject matter of this Consent and supersedes all prior agreements and understandings with
respect to the subject matter. This Consent may be modified only by written agreement signed by
an authorized representative of each of the Parties.
Alliance Airport.CONSENT TO ASSIGNMENT.Lease Agreement.City of Fort Worth.tms062515c.c
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX 1
7. This Consent may be executed in one or more counterparts, each of which shall be deemed an
original , but all of which together shall constitute one and the same instrument. Signature
pages may be detached from the counterparts and attached to a single copy of this Consent to
physically form one document .
Dated j y k 't \ D
1XUEnergy Retail Company Il.C
a Texas limited liability company
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
,2015 .
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Alliance Airport Authority, Inc .
a Texas nonprofit industrial development
corporation ~
By:~~
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City of Port Worth
a Texas political subdivision
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Its: 1/Js-/l(; ' '
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Alliance Airport.CONSENT TO ASSIGNMENT .Lease Agreement.City of Fort Worth .tms062515b .c 2
Attachment A
To
Consent to Assignment and Assumption of Agreement
By and Between
TXU Energy Retail Company LLC
Alliance Airport Authority, Inc.
And
City of Fort Worth
. .,
----------.. - -
nJEI.ECTRIC
CONSTRUCTION AND LEASE AGREEMENT
BY AND BETWEEN
American Airlines, Inc.
AND
Texas Utilities Electric: Company
DA TED SEPmma 25' 19 90
NO. 6K4-00024
RECEIVED
SEP 051991
PROCUREMENT SB<VICES
30-ST •
Contract No. 6K4-00024
Contems
CONSTRUCTION AND LEASE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
OEFIN ITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION A -CONSTRUCTION OF FACILITIES ......................... 2
CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... : . . . . . . . . 2
SC-IEDULE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION S -LEASE OF FACJUTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
LEASE .................................. ·. . . . . . . . . . . . . . . . . . . . 3
TmM · OF LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
LEASE PAYMSfT •.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
PtJRCHASE OPTION •. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION C -PURCHASE OF B.ECTRIC SERVICE . . . . . . . . . . . . . . . . . . . . . . . 4
SECTJON D -TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
TERMINATION PRIOR TO COMPLETION ............................ 4
TERMINATION CII' LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION E -OPERATION OF FACJLmES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION F -OWNmSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION G -DeAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION H -AUlHORIZED REPRESENT A T1VES AND INSPECTORS . . . . . . . . . . 6
SECTION I -SUSPEffSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION J -ASSIGNMENT AND SUBCONTRACTING . . . . . . . . . . . . . . . . . . . . 7
SECTION K -COMPLIANCE WITH LAWS .. ; .................... •.. . . . . 8
SECTION L -INSURANCE AND fNDEMNIFJCA TlON . . . . . . . . . . . . . . . . . . . . . . 8 .
INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
INCJEMNIFICA T10N . . . . . . . . . . . . . . . . . . . . . . . . . . . ~ ·. . . . . . . . . . . . . . . 8
SECTION M -WARRANTY, EXCLUSIVE REMEDY, LIMITATION OF LIABILJTY ANO
WAIVER OF CONSEQUENTIAL DAMAGES .. ~ . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION N -PROPRIETARY INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION O -RIGHTS TO DATA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION P -MISCB.LANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . 10
NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~ . . . . . . . . . . . . . . 10
INDEPENDENT CONTRACTOR RELATIONSHIP ...................... 11
GO~NING LAW ..... ·. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
NON-WAIVER OF RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SURVIVAL .......................... : . . . . . . . . . . . . . . . . . . . . . . 11
SevetABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ENTIRETf OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
PUBUCllY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
BINDING ON SUCCESSORS ANO ASSIGNS . . . . . . . . . . . . . . . . . . . . . . . . . 12
FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ATTACHMEffTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Contract No. 6K4-00024
CONSTRUCTION AND LEASE AGREEMENT
This Agreement is made, entered and effective as of the lSth day of September ,
19 90 , by and between American Airlines, Inc .. a Delaware Corporation and Texas
Utiiii'ies Electric Company, a Texas Corporation. •
NOW, THEREFORE. for and in consideration of the mutual benefits and obligations
set forth in this Agreement and all exhibits hereto. together with other good and
valuable considet"ation, the patties hereto mutuaJly agree as foJJows:
DERNITIONS
• AMERICAN AJRUNes• shall mean American Airlines, Inc .• its successors, and/or
assigns.
--ru ELECTRIC-shaJI mean Texas UtiliUes Bectric Company, its successors. and/or
assigns.
-Proiect" refers to die American Alrtfnes Alllance Airport Maintenance Facility under
construction in Deman _County. Texas.
~adflti~ shall mean the on-site electric distribution system for the Proied to be
constructed by TU ELECTRIC hereunder.
•AMERICAN AIRUN~• Authorized Representativlr' shaU mean the agent(s),
representative(s), or appointee(s) who Is authorized by AMERICAN AIRLINES to
perform the fundfons pn:rvfded far in this Agreement. AMERICAN AIRLINES may
appoint at any time, and In Its sate dlscretJon, more than one such agent,
representative, or appolnt_ee.
-ru B.ECTRIC"s Authorized Representauve• shall mean the agent(s),
representatfve(s), or appaintee(s) who is authorized by TU B.ECTRIC to perform the
functions provided for In this Agreement .. TU ELECTRIC may appoint at any time,
and. In its sole discretion, more than one such agent, representative, or appointee.
•AMERICAN AIRLINES Group• sha(I mean AMERICAN "AIRLINES, its parent,
subsidiary and affiliate entttfes. and the officers, directors, shareholders,
employees, servants, and agents of each.
11J ELECTRIC Group• shall mean ru ELECTRIC, its parent, subsidiary and affiliate
entities, and the officers, directors, shareholders, employees, servants, and agents
of each, and the subcontractors of TU ELECTRIC.
1
:-
Contract No. 6K4-00024
SECTION A -CONSTRUCTION OF FACILITIES
CONSTRUCTION
TU a..ECTRIC shall provide all labor, materials and services necessary ror !he
construction of the Facilities, to indude the engineering, design and instaJlation
thereof. The Facilities . shaJI indude any and all foundations. pads, transformers,
capacitors, connectors. cabtes, underground duds, manholes, handholes, • switch
gear and efectrfca, system protection and safety devices reasonably required for the
transference ot medric power and energy from the efedric service primary YOttage
point of delivery for the Project to eadl point of inten:onnedlon with the entrance
conductors of each canswmng building, facility and system within the Project, all in
accardance with Ille Descrtpaon al Fadlllles attached ta this Agreeme11t • "'Exhlllff
A•. The Fadlltles do not entail entrance vaults or enclosures which wwll house
efedricaf buswori[. panels and c:in:wtry associated with any consummg building,
facility or system, but does indude the physical connection of the entrance
conductors al the secondary terrninats of the transformers. AJI canstrudion at
Facilltles shall comply with the NatfonaJ Sedric Safety Code and good practice.
Upan completion al canstnJctfon, all worit n:!ated debris and surplus materiaJs shall
be deared from the site.
The Description al FacillUes referenced above details the antfdpated locations and
electric power and energy requirements of each planned building, facility and
system and the antldpated and allowable locations of the facilities to be co~ded
pursuant to this Agreement. FfnaJ locations for the facUIUes shall be determined by ·
mutual agreement prior to the submission af detailed drawings by TU a.ECTRIC.
All engineering and design shaU be subfed to approval by AMERICAN AIRLINES
prior ta the commencement of construdJan, provided that such approval shall not
relieve TU B..ECTRIC of ifs obligations undm" this Agreement. During consfruction,
all . work shall be subfed ta Inspection bV AMERICAN Al RUNES for approval . and
conformance ta -exhibit A• plans and spedffcatlons. Any constructfon wort found
not to be In canfonnance will be redone by TU ELECTRIC to correct such defects at
Hs expense.
If for any reason whatsoever the total actual cast of the canstrudfon of the Facilities
(Including any applicable overhead charges) exceeds Two Million Five Hundred
Thousand Dollars ($2,500,000), AMERICAN AIRLINES shall reimburse TU B.ECTRIC
for any and all costs of construction in excess of such amount. Further, in the event
that the total actual cost of the construction of lhe FadlJUes (lnctudfng any
applicable overhead charges) is less than Two Million Frve ·Hundred Thousand
Dollars ($2.500,000), the termination fee schedule induded in Section o of this
Agreement shall be recalculated to reduce the tenninaUan ree due with thirty (30)
years remaining in the f ease term by the difference between the total adual cost of
construction of the Facilities and Two Million Five Hundred Thousand . Dollars
($2,500,000) and to recalculate the remaining termination fees based upon such
?
Contract No. 6K4-00024
reduction. An amendment to this Agreement will be executed in the event of such a
change to reftect this reduction.
SCHEDULE
Time is of the essence in this Agreement. TU ELECTRIC shall construct the
Facilities as required to support the AMERfCAN AIRLINES schedule for contracting
and construction of the Projed.
A detailed milestone scheduJe shaU be prepared by TU aecnuc in support ot the
AMERICAN AIRLINES schedule and submitted to AMERICAN AIRLINES for approval
no later than August 1, 1990. •
AMERICAN AIRLINES reserves the right to revise its schedule for contracting and
construction of the Praiect without prior notJce or approval of TU aECTRIC. No
change in schedule shall form the basis for additional compensation. but shatl
entiUe TU ELECTRIC ta an adfustment in the time required for performance of the
construction of the FacilftJes. In no event shall TU a.ECTRIC be allowed less than
60 days notice of the Ume desired for the commencement of construction of the
Fadlitfes or any portion tllereof, nor less than 180 days for completfon of such
construdlon unless TU ELECTRIC shall agree in writing ta lesser notice and time for
completion.
SECTION B -LEASE OF FACIUTIES
LEASE
Upon the completion of the construdJon of the Facilities, TU ELECTRIC agrees to
lease the Facilities to AMERICAN AIRLINES upon the terms and conditions set forth
herein.
TERM OF LEASE
The term of the lease of the Facilities shall begin upon the completion of the
construction of the Facilities and shall continue for a period of thirty (30) years
unless eartler terminated as set forth herein.
3
Contract No. 6K4-00024
LEASE PAYMENT
Upon the completion of the construction of the Facilities, AMERICAN AIRLINES
agrees to pay TU 8.ECTRIC the sum of Six Hundred Thousand Collars ($600,000) as
the lease payment for the lease of the Facilities hereunder. Along with such lease
payment, AMERICAN AIRLINES shall reimburse TU ELECTRIC ror any and al costs
incurred by TU ELECTRIC in the construction of any facilities in excess at Two
Million Five Hundred Thousand Dollars ($2.500,000) as described in · Section A
herein.
PURCHASE OPTION
Upon the expiration of the term al Iha abcM9-described lease, AMERICAN AIRUHES
shatl have the option al purc:baslng Ole Fad:ltles for St.00. Such sum shall be
payable only after the expiration al the term of said lease.
SECTION C • PURCHASE OF B.ECTRIC SERVICE
AMERICAN AIRLINES agrees that throughout the term of this Agreement ii shad be
a twl-n,quirements eledrfc service customer of TU ELECTRIC and shall receive aQ
of its electric power and energy requirements for the Proied from TU ELECTRJr. in
accordance with Exhibit~• attached hereto.
SECTION D -TERMINATION
TERMINATION PRIOR TO COMPLETION
In the event that AMERI~ AIRLINES elects to terminate this Agreement prior to
completion of canstnadJan it must provide ten (10) days written notice to TU
a.ECTRIC. Upon receipt of such notice, .TU ELECTRIC shall discontinue the
construction of the Facilities. and shall discontinue making commitments for labor,
materials and services insofar as pradfcabte. •
Upon such terminaUon, fufl and complete settlement of compensation due TU
ELECTRIC shall l:le made as follows:
A. AMERICAN AIRLINES shall assume and become liable for aJI obligations,
commitments. and liabilities that TU ELECTRIC, in good faith, may · have
undertaken or incurred in connection with the construction of the Facilitles and
with this Agreement.
S. AMERICAN AIRLINES shall reimburse TU ELECTRIC for aJr costs reasonably
incurred to the date of termination.
C. AMERICAN AIRLINES shall pay TU ELECTRIC for all costs incurred after the •
effedive date of termination as required for the orderty cessation of the
Contract No. 6K4-00024
construction of the Facilities and for all other expenses reasonably incurred
after the effective date o1 termination.
TERMINATION OF LEASE
In the event that AMERICAN AIRLINES elects to terminate this Agreement after the
commencement of the lease of the Facilities, it must provide TU ELECTRIC With at
least (12) month's prior written notice of its intent to . so terminate. AMERICAN
AIRLINES agrees that upon the effective date of such termination, it shaU pay to TU
a.ECTRIC a termination fee based upon the number al yea-s remaining in the lease
term. The fee to be paid bJ AMERICAN AIRLINES shall be calculated from the
effective date of termination in accordance with the following schedule:
Years Remaining
In Lease Term
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Termination
fl!
S 175.483
S 335.844
S 482,388
S 616,300
S 738,674
$ 850,503
S 952.692
$1,046,0SO
$1,131,419
S1.209,403
$1.280,667
$1.345.790
$1,405.301
$1,459.684
$1,509,381
Years Remaining
fnt.e,seTerm
16
17.
18
19
20
21
22
23
24
2S
28
Z1
28
29
30
Termination
En
$1_554,795
S1,596.295
$1,634,219
$1,668.876
$1,700,545
$1.729,486
$1.755.933
$1,780,100 •
S1,802,185
$1,822.367
St,840,810
$1,857,663
$1,873,064
s1.-,,13a
$1,900,000
The above-described fee shall be paid by ~MERICAN AIRLINES within thirty (30)
days of the effective date of such termination.-Upon the payment of the applicable
tenninatlon fee by AMERICAN AIRLINES, TU ELECTRIC will transfer ownership of
the Facilities ·to AMERICAN AIRLINES.
SECTION E -OPERATION OF FACIUTIES
AMERICAN AIRLINES, beginning with the start of the term ol the lease of the
Facilities, shall be fully responsible for the operation, maintenance, repair and any
expansion of the Facilities and any and all costs and expenses associated therewith.
Al the option of AMERICAN AJRUNES, a separate maintenance agreement could be
negotiated whereby TU B.ECTRIC would maintain and repair the Facilities at ru
ELECTRIC' s standard costs .
5
_Contract No. 6K4-00024
SECTION F -OWNERSHIP
The parties hereto adtnawf ectge and agree lhat throughout the lease of the
Facilities, TU ELECTRIC shall retain ownership and tllf e to the Facilities and that the
payment of lease payments by AMERICAN AIRLINES shall not serve ta vest any
equity or other interest in and to the Facilities in AMERICAN AIRLINES.
SECTION G -DEFAULT
In the event that AMERICAN AIRLINES defaults on any of its oblfgations or
responsibilities ~er tin Agreement, inducting but not lfmited ta Its obligations in
Sections S and C herein, ru a.ECTRIC shaft provide AMERICAN AIRLINES with
written notice of such defauH. If AMERICAN AIRLINES has not cured such breach
ta TU ELECTRIC's satfse.:tlan within ttdr1y (30) days al its receipt al such natlea, TU
ELECTRIC may elect la terminate this Aga eement. in the event of such a
termination, AMERICAN AIRLINES shall pay TU B.ECTRIC a termination fee
cal~ed in accordance wHb the schedule set forth in Section D of this Agreement.
Upon payment of such termination fee, TU B.ECTRIC shall transfer ownership ot the
Fadlitles ta AMERICAN AIRLINES.
SECTION H -AUTHORIZED REPRESENTATIVES AND INSPECTORS
T\J ELECTRIC agrees to a thorough Inspection by AMERICAN AIRLINES of the
construdlon while in progress. AH construction performed by TlJ ELECTRIC and aU
materials furnished by it hereunder shall be subject to an inspection by · Inspectors
designated by AMERICAN AIRLINES" Authorized Representative to determine
whether the canstrudlon of the Facilities ·and all parts thereof are being petformed
in strtd compl&anca wffl'I all of the terms and pravtsions of this Aga eement. Neither
AMERICAN AIRLINES• Authorized Representative nor AMERICAN AIRLINES"
inspectors shall have any power or authority ta waive any of the provisions of this
Agreement or· any obligations of TU B..ECTRIC under this Agreemenl
Each party shall notify the other in writing af the identity af tis Authorized
Representatlve(s) and any changes in the Identity thereof. · At all Umes during
construdJon hereunder, regardless of the amount of the construction sublet, TU
8.ECTRIC will maintain one Authorized Representative who shall have fuJI authority
to represent TU ELECTRIC In all matters of the construdlon to be performed by TU
8.ECTRIC. All decisions made by TU El.ECTRIC"s Authoriz~d Representative shall
be binding upon TU ELECTRIC.
fi
Contract No. 6K4-00024
SECTION I -SUSPENSION
AMERICAN AIRLINES may by written notice ta TU ELECTRIC suspend at any Ume
and without cause the performance of au · or any par1fon of the construction of the
Facilities to be perlarmed under this Agreement. Upon receipt of such notice, TU
ELECTRIC shall, unless the notice requires otherwise:
A. Immediately discontinue construction on the date and to the extent specified in
the notice.
I
a. Place no further orders for labor, materials or services with respect to the
construction of the Fadlitles other than to. the extent required in the notice,
C. Promptly make we,y --1 to obtain suspension upon terms satisfactory to
AMERICAN AIRLINES of al commitments for labor, materiaJ and services to the
extent they relate to_ perfarmance of the suspended construction.
D. Continue to protect and maintain the portions of the construction completed
lndudlng those portions of which have been suspended and,
e. Take any other reasonable steps to minimize costs associated with such
suspension.
Reasonable costs of suspension will be borne by AMERICAN AIRLINES. Upon
receipt of notice to resqme construction, ru B.ECTRIC shall Immediately rest'ffle
performance under thJs Aga e&r1ent ta the. extent required •~ the notice. If
appropriate, an adfustment to schedule will be made with respect to resumed
construction. No period of suspension shall exceed 24 months without ·the prior
approval of TU ELECTRIC. •
SECTION J -ASSIGNMENT AND SUBCONTRACTING . ·
Neither party may assign, transfer or otherwise dispose of its obligatlons or duties
under this Agreement, or any part thereof, except with the prior written approval of
the other. Any such assignment ar transfer, made without the express written
approval of the other party, sllaJI be null and void.
TU ELECTRIC may subcontrad for the constructJon of the facilities without the prior
written approval of AMERICAN AIRLINES; provided, however, TU ELECTRIC shall
not be refieved of any duty or liability relating to any of the construction by reason
of subcontracting, and shatl remain responsible ta AMERICAN AIRLINES for the fuJI
and ccmplete construction of the Facilities in accordance with this Agreement.
Nothing contained f n this Agreement shall create any cantraduaJ relationshf p
between AMERICAN AIRLINES and any subcontractor. •
7
Contract No. 6K4-00024
SECTION K -COMPLIANCE WITH LAWS
A. TU ELECTRIC represents that it is now knawf edgeable -of, or prior to the
commencement of the construdion of the FaciliUes will become knowfedgeable
of, all federal, state, and focal laws, rules, decrees, orders, regulations,
by-faws. ordinances and codes applicable to the construdion of the Facilities
and TU ELECTRIC agrees to observe and comply with au such .authority at au
times during the construdion of the Facilities.
a. If nnes, penalties, or legal costs are assessed against AMERICAN AIRLINES, by
arry rmri or governmental agency, due to TU a.ECTRIC Group~s
non-compliance with any of its pm,ioumy-discussed obfiptions or it the
construdlon of the Facilities, or any part thereof, is delayed or stopped by any
court ar gavammerdat· agency. dua to TU ELECTRIC Group's narH:Ompllance
with sudl obligatlona, TU B.ECTRIC shall Indemnify and hold harmless
AMERICAN AIRLINES Group from and against any and all such fines, penaffles
and legal casts (Including reasonable attorneys' fees and court costs) arising
out al or incurred a a result, dlredly or indirectly, of the failure of TU
B.ECTRIC Group to comply therewith.
SECTION L -INSURANCE AND INDEMNIFICATION
INSURANCE
A. TU a.ECTRIC Shall during the course of . the construction of the Facilities
maintain liability insurance with limits of not less than $20,000,000 with an
initial layer of sett-insurance retention of not more than S5,000,000.
B. Before commencing construdlon of the -Facilities TU ELECTRIC shaU, upon
request, furnish AMERICAN AIRLINES with Certificates of Insurance indicating
that the aforementioned Insurance is In full force and effect and that
AMERICAN AIRLINES • will_ receive at least thirty (30) days prior notice of
canceUatJon or any modification of the insurance that may affect AMERICAN
AIRLINES' Interest.
C. TU a.ECTRIC and AMERICAN AIRLINES each waive all rights of recovery
against a lou occurring to property of the other, to the extent that such waivers
do not Invalidate the property insurance of either.
INDEMNIFICA TtON
TU ELECTRIC agrees to indemnify, protect and hold hannless AMERICAN AIRLJNES
Group from and against any and all claims, damages, costs, expenses, lasses,
judgements. causes of action, suits and liability in tort, contract or any other basis
and of every kind and character whatsoever, including, without limitation, aH costs
of defense and attorneys' fees, arising out of, directly or indirectly, ru aECTRIC
Group's negligence in the construdion of the Facilities.
0
Contrad No. 6K4--00024
AMERICAN AIRLINES agrees to indemnify, prated and hold harmless TU ELECTRIC
Group from and. against any and au claims, damages, costs, expenses. losses,
judgements. causes of action, suits and liability in tort, contract or any other basis
and of every kind and charader whatsoever, including, without limitation, all costs
of defense and attorneys' fees, arising out of. directly or indirectly, AMERICAN
AIRLINES Group's negligence in the operation, maintenance and repair of the
Facilities ..
SECTION M -WARRANTY, EXCLUSIVE REMEDY, LIMITATION OF
LIABILITY AND WAIVER OF CONSEQUENTIAL DAMAGES
A. In the construdtan al the FacillUes, TU ELECTRIC wanants that it will be
responsible to AMERICAN AIRLINES for exercising that degree of care and sldll
ordinarily exercised bJ mmnbers of the etec:tric public mWty industry engaged
In providing services that are similar with respect ta lhe scope and nature of
the construction ol the FaciffUes. If TU B.ECTRIC should fail to meet the
standards set forth in this paragraph, it shaJI, without addftfonaJ compensation,
correct or revise any errors or deftciencies in the cans1rudlon of the FaciJIUes,
provided AMERICAN AIRLINES notifies TU a.ECTRIC in writfn; of sudl erron
or deficiendes within one year tram the date of completion of the canstrudion
at the Facilities.
B. The omy wanantles made by TU ELECTRIC are those expressly enumendea fn
this provision. Any other statements af fad or descriptions expressed in thfs
Ag, eement or 8lr'f attachments hereto shad not be deemed to cansfflute a
warranty of the construc:tJon of the Fac:iliUes or any part thereof.-nte
WARRANTIES SET FORTH IN THIS PROVISION ARE EXCl.USIVE AND IN LIEU
OF ALL OTHER WARRANTIES. WHETHER STATUTORY, EXPRESS OR IMPLIED
(INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FrmESS FoR
PARTICULAR PURPOSE ANO ALL WARRANTIES ARISING FROM COURSE OF
DEALING AND USAGE OF TRADE). The remedies provided above are
AMERICAN AIRLINES' sole remedies for any failw-e af TU Eµ:CTRIC to comply
with its obllgatians. Corredlon of any nonconformity in the manner and for the
period of Ume provided above shall constitute complete fulffllment of all the
Habilltles of TIJ B.ECTRIC for defective or nonconforming construdlon, whether
the daims of AMERICAN AIRLINES are based In contrad, In tort (Including
negligence and strid liability), or otherwise with respect to or arising out of the
construdion of the FaciliUes.
c. Whether due to delay, breach of contract or warranty, tor1 (including negligence
and strid liability) or any other theories of Uability, TU 8.ECTRIC shall -not be
liable for any other direct, special, Indirect. Incidental or consequential
damages of any nature, including, without limitation, AMERICAN AIRLINES'
loss of actual or antJdpated profits or revenues, loss by reason of shutdown,
nonoperatJon, or increased expense of manufaduring or operation, loss of use,
cost of capital, ctaims of customers of AMERICAN AIRLINES or for any costs, .
labor or materials required for reconstruction or repairs.
0
Contract No. 6K4-00024
0. Upon termination of this Agreement as provided herein, the Facilities will be
conveyed to AMERICAN AIRLINES free and · dear of all mor1gages, liens,
encumbrances. leases, restridions, covenants or any other matters affecting
title which are not held in the name of AMERICAN AIRLINES.
E. The remedies stated in this Agreement are exdusive.
SECTION N -PROPRIETARY INFORMATION
TU a.ECTRIC agrees not ta dlVuJge fo third parties, without tl'.le written consent of
AMERICAN AJRUNES, any information which refat• to the technical or business
adfvitles of AMERICAN AIRLINES Group obtained from • or through AMERICAN
AIRLINES Group, in cannedfon wilh the performance of this Agreement unless: (1)
the kdonnation ia known to TU ELECTRIC prior to obtaining the same from
AMERICAN AUWNES Group: (2) the information ... at the time a,. dlsdosura by ru
a..ECTRIC, then in the public damain; ar (3) the ~tJon Is obtained by TlJ
ELECTRIC from a third party who did not receive ume directly or indirectly from
AMERICAN AIRLINES Graap and who has no obllgatlon at secrecy wfth respect
thereto. TU aECTRIC further agrees that It will not. without the ~rfor written
mnsent ·at A"MERJCAK " AIRLINES, dlicloie--fo any third parly any fnfarmatton
developed or obtained by TU ELECTRIC in the performance af this Agreement
except to the mctent that such lnformatlon faUs within one of the categories
described In (1), (2). or _(3) above.
SECTION O • RIGHTS TO DATA
AU designs. dra)Vings, ca4cuWi'XISo computer cades. plans. specfflcatlans, data, ·and
any and atl other information deveklped. creafed or p,aduced by TU ELECTRIC, or
by any member of T1J a.a:TRIC Group, punsuant to or ralatfng dfredly to the
eanstrvctlan of the Facfflties shall be made available ta AMERICAN AIRLINES.
When so developed, creatad, ar produced, and notwittlstanding any property
designations contained lllerein, AMERICAN AIRLINES shall have the right to use
such without lfmitatlan. •
SECTION P -MISCFJ I A~EOUS PROVISIONS
NOTICES
All notices from one party to the other shall be deemed to have been duly delivered
if hand delivered or sent by United States certified mail, return receipt requested,
postage prepaid, as follows:
If to ru B.ECTRIC:
Texas Utilities Bedric Company
P, o, Box 97D
Fo'l't Worth, TX 76101
ATTENTION: Paul D. -WUUarns
Vice President
10
If to AMERICAN AIRLINES:
American Alr1Ines. Inc.
4 Zs s AMOfi CAJl'.tEB Btyn., MD-4 2 13
FT. WORTH. TX 76155
A TTENTJON; A. J. ALLISON
V.P. CORPORATE SERVICES
Contract No. 6K4-00024
INDEPENDENT COff)"RACTOR RELA TJONSHI P
It is expressly understood and agreed that ru ELECTRIC shail ad as and be
deemed to be an independent ccntractar for purposes of this Agreement. Neither
TU 8.ECTRIC nor any of its employees shall ad as, nor be deemed to be, an agent
or employee of AMERICAN AIRLINES. TU a.ECTRIC shall have the sole right to
control and directly supervise, the method, manner, and details of the ccnstrudion
of the Facililfes.
GOVERNING LAW
This Agreement, and the rights of the parties under this Agreement. shall be
governed by. construed and enforced and their vaUdffy shall be determined in
accordance with the laws of the Slate of Texas..
NON-WAIVER OF RIGHTS
Waiver by either party of any breach of this Agreement, or the failure of either party
to enforce any of the provisions of this Aga eement, at any time, shall not in any way
affect, limit or waive _such party's right thereder Co enforce and compel strict
compliance.
HEADINGS
The headings of the various provisions of this Ag. eement are for convenience of
reference onty and sbaJI be afforded no significance in the interpretation . or
construction of this Agreement.
SURVIVAL
Neither completJon of the construdion of the FadliUes or any part thereof, nor any
termination or cancellation of this Agreement, shall be deemed ta reUeve the parties
of any obligations, relating ta this Agreement, that by their nature survive
completion of the construdfon of the Facilities, including,. but not limited ta, all
warranties and obligations of indemnity.
Contract No. 61<4--00024
SEVERABIUTY
In the event any provision of this Agreement shall be deemed to be . void. untawtul.
or otherwise unenforceable, such provisio,1 shall be deemed severable from the
remainder of this Agreement, and such void, unlawful, or unenforceable provision
shall be replaced automatically by a provision containing terms as nearfy like the
void, unlawful, or unenforceable provision as possible: and this Agreement, as so
modified, shall continue ta be in full force and effect.
ENTIRETY OF AGREEMENT
. This Agreement, together with any and all attachments tlweto, constitutes the entire
agreement between AMERICAN AIRLINES and ru a.a:TRIC with respect to lhe
subfect matter hereof. The parties sha!I not be bound by or be liable for any
statement, representation, promise, Inducement or understanding of any kind . or
nature not set forth as provided for herein.
PUBLICITY _
Each party agrees that no information relative to this Agreement shaU be released
for publication, advm1ising or any other purpose without the prior written approval
of the other. •
BINDING ON SUCCESSORS AND ASSIGNS
This Agreement shall-inure to the benefit of and be binding upon the undersigned
parties and entitles. and their respective legal representatives, successors.. and
assigns.
FORCE MAJEURE
Neither party shall be liable for any defay or failure to perfonn resultlng from acts of
• God, changes in or passage of appllcable laws, orders of governmental authorities
strikes, civil commotion or other events beyond the control of the party which
reasonably Impair or prevent performance.
12
Contract No . 61<4-00024
ATTACHMENTS
TU ELECTRIC and AMERICAN AIRLINES agre that the following attachments
constitute a part of this Agreement and are incorporated herein in their entirety for
the purposes indicated in the text of this Agreement
Exhibit • A• Oesaiption of Facilities
Exhibit -a· Agreement for Sectric Service
IN WITNESS WHEREOF, the parties have affixed their signatures hereto in
actnowtedgement of and agreement to the foregoing as of the effective date of this
Agreement.
nJ ELECTRIC
Sy: ~?~JiJ ........ 5~/;~.....,_· '.Lb.tye.__..._. .. -~ Signature
TiUe: Ykz Pfflrident •
Date: q .... G9,fo •
• 13
AMERICAN AIRLINES
~
Sy: __ Aiz.tt~-!!!e,.."!!'"'-._..__ __ ,4_i_.h_=>, .......... _
-U1gnature
Name: A. .J. ALLISON
Title: cmPOIATE SERVICES ----------
Date: 'f!t1 / qo ----+IJ ..... -+L--=-------
EDIBI1" A
Facilities shall include any and all 2S KV transformers,
PMH switchgear both automatic and manual, conductors,
connectors, terminators, electrical system protection,
safety devices, coMection of the entrance conductors
at the secondary tez:ainals of the transformers, and other
miscellaneous equ~pment as reasonably required to provide
electric power to 5the project.
The facilities do not include the 25 KV outdoor metalclad
main switchgear ·line up, the outdoor metalclad switchgear
at the central utility plant or electrical buswork, panels,
circuitry, or entrance conductors associated with any
consuming building or system. Also not included is
civil work such aa foundations, pads, manholes, handholes,
and anderground ducts.
A SDVI:C'Z
Agreement Number
Account Humcer
Region/District
Fort Worth
AMERICAN AIRLINES, INC. , hereina'fter called "CUst011er", and
Tax.as Utiliti.-Elec::tric Ccmpany, a Texas corporation, hareinattar
called •ca.pany.•, in considaratian a~ tba autual covenants and
agreements berein c:anta.ined, and o'f th• mutual bene:tits to be
derived bare'frcm, hereby covenant and .aqree as follow•:
1. co.pany a.ar ■• ta provide and CUstaaar agrees to taJce and pay
tor a1.l electric power and anergy required by CUstomer tor the
operation or CUstcmar's business or activity at the premises
owned or occupied by custoaar at: •
Service Addrmls (Location) Hail.ing Address { i:t different
• rrcma Service Address)
2000 Ea.cle Parklr&y
!'ort Worth, Texas 76177 SAJIE
Electric paver and energy provided under this agreement will
be f'm:ni•bad by Ccmpany ta Cl1Strmar under and pursuant to such
Rate Sc:hadula and Service Regu.l-ations or Company as may from
tiJDa to ti.me be tixad and . approved, in Company• s .Tari:tt . tor
Electric Service, by raqulatary authorities as may have
jurisdicti.cn at • th• above re'faranced praaisas. SAID RATE
SCBEDOLE ARD SERVlcB REGULATIONS ARE PART-OP 'l'BIS AGREEMENT TO
'l'HE SAXE EXfiJff AS IF FOLLY SE'l' OtJ'l' HERllll AND All OH Fm AND
AVAILULB H COMPAHY OFFICES.
2. company shall provide el.ectric power up to a demand ot
1,, 000 Jcv. 'Any tutura changes in this demand level will be
subject ta COJlpany • s extension policy as approved and on tile
at the appropriate regulatory authority and the other terms
and conditions ot Company• s then-approved Tariff tor Electric
Service. The electric service to be delivered hereunder will
be ot tha character commonly described as 24,940 volt, three
phase, at 60 hertz, with reasonable variation to be allowed.
The electric power and energy to ba delivered by company to
CUstoaer shall ba provided in accordance vi th tenns and
conditions ot Rate Schedule G with Primary service credit ,
which uy from time to time be amended or succeeded. The term
ot this agreement shall be for five (5) years trom June 1,
. .
1992, or from data of initial service haraunder, whichever
shall be earlier. Unless written notice is given by either
party hereto to the other not less than twal ve C 12) acmths
before the expiration o~ this agreement, it shall be continued
tor another one (1) year period and year to year thereafter
until blrll.inatad by said written notice served not less than
twelve (12) months batara the expiration ot any such one-year
period.
3. OlS't:mler aqreu to qrant or sec:are tor company, at CUst:oaer • s
expensa, any rights-or-way on praperty ovnad or controlled by
CUstaaar and 1:o pra,,ida suitable space on said preaisea tor
installation~ facil.J.1:i-vbara such riqbts-ot-vay and space
are necassary ta pra,,id• electric sarvica to Olstoaer .
.
4. This a.gx ►-nt supersadas all previous agreeamat:a, vrittea or
vari:lal, i.t:1-.en awpawy and oaataaar tor tha senica describad
barain and' sb•Jl .inura to the ~it o'f and be binding apcn
tba respect:i.va baim, legal. nprasentatives, successors and
assigns of tile part:ias hereto, • bat no aaaigmaent of this
agre---nt by aitbar party barato sbaJ2 be binding upon. the
other UDtil accaptad in vrit.iDJ by such other party. 'ftlis -
agr.....nt is subject to all. lava and gavernamtal raga.l.atians
and to the provisions o'f cowpany•s ~chisas nav in effect or
which -Y beraattar baccme eiractiva.
5. c:ustcmar and Ompmy bare.by agrae tbat in the 41V'ent that the
canstructian and Laase Aqrawnt exac:u~ed by CUstomar and
Company for the conat:raction and 1-o'f an cm-sita al.ectric
cliatribatian ·systaa at: tlla abav9 service addrasll 1a taciinated
or mcpiru, tba e1ectric pc,ve-and energy to be dallvand by
ccmpany to CDataller b■zeunder wb•J J be pz,:,Yidad in accordance
vith tba tanw and c:mxlitJ.ona o'f applicable Rate Scbedules,
vhic:h aay traa t:.iaa to tllll■ be ailended or .succ:aeded.
6. In tba ennt tbat either party barato terainata service-under
this aqr--■nt and ~ .... to reesta1:>lisb aucb service
at soaa later data; such raestabliabwent •shall be pursuant ta
Coapany • s l.in• md:arulian policy u approved and on tile at 1:ha
appropriate regulatory authority and th• other tams and
conditions o'f Ctmpany • s then-approved 'l'ari~f tor Electric
service.
ACCEPfED BY ·cusTOMER:
signature Paul O. WOUerns S1gna '
A . .J. ALLISON
Vice President V.P. CORPORATE SERVICES
Title
Date Signed
q(Mfe;o
Date Signed•
2
........... -----.. -
TIJB..ECTRIC
AMENDMENT NO. 01
DATED August 28, 1991 •
to
CONSTRUCTION AND LEASE AGREEMENT
6K4-00024
By and Between
American Airlines, Inc.
AND
Texas Utilities Electric Company
DATED September 25, 1990
..
. ,
AMENDMENT •
Contract No. 6K4-00024
Amendment No. 01
This Amendment changes and supersedes the certain provision stated herein in the
Agreement by and between Texas Utilities Electric Company and American Airfines,
Inc., known as .Contract No. 6K4-00024, made the 25th day of September, 1990
("Agreement").
This Amendment is issued to replace in ·its entirety the termination fee schedule
contained in the Agreement which has been recalculated to reflect a reduction of
four thousand two hundred seventy four dollars ($4.274.00) in the total actuaJ cost of
construction of the Facilities _as follows:
Years Remaining Termination Years Remaining Termination
In Lease Tenn Fee In Lease Term • Fee
1 $ 175,088.35 16 $1,551.297.82
2 $ 335,088.66 17 $1,592,704.92
3 $ 481,301.14 18 $1,630,543.82
4 $ 614,913.94 19 S 1,665, 121.99
5 $ 737,012.81 20 $1 ,696,720.43
6 $ 848,589.95 21 $1,725,595 .92
7 s 950,552.07 22 $1,751,983.09 .
8 $1,043,727.72 23 s 1, n&,096.38
9 $1,128,874.08 24 $1,798,131.73
10 $1,206,683.04 25 $1,818.268.22
11 $1,277,786.92 26 $1,836,669.47
12 $1,342,763.50 V $1 .853,485.01
13 $1,402,140.80 28 S 1,868,851 .49
14 $1,456,401.33 29 $1 ,882,893.78
15 $1,505,986.02 30 $1,895,726.00
The parties further agree that all other terms and conditions in the Agreement shall
remain in full force and effect.
t ••
IN WITNESS WHEREOF, the parties have affixed their signatures hereto in
acknowledgement of and agreement to the foregoing as of the effective date of this
Agreement. •
CONTRACTOR
By~------------Signature
Name: ___________ _
Title : ___________ _
Date: ___________ _
6R901466
00024AM1
RLA
2
COMPANY
By: ---~,..,.--------5 i gnat u re
Name: -----------
Title: ------------
Date:
..... ----. .. --- -
•
JUSERVICES ..
MJINQMEJff NO. l
DA TED October 1, 1997
to
CONSTRUCTION AND LEASE AGREEMENT
c.
TEXAS UTllJrIES ELECl'RIC COMPANY
DATED SEPTEMBER 25, 1990
AMENDMENT
Amendment No. 2
Contract #6K4-00024
This Amendment No. 02 changes and supersedes catain provisims stated herein in RRMS
the Agreemcllt by and betw=n Teus Utilities Eledrie Compmy and American
Airlines, Inc., known as Coa:ract 6K4-00024, made the 25th day of September l 990
("Agreemait').
(i) SECTION A -CONSTilUCTION OF FACILI11ES, CONS'IllUC110N MODIFICATIONS
AND SCHEDULE
This Sectim is DO IODpl' applicable for this Ammcbmt; ~ constructioa of
faciJiries i& wwplelc. •
(ii) SECTION D -TERMINATION; 1"ERMINATION OF I.EASE"
ID the tint M4a-e aftbe fint ~ the words "(12) lll<llldis" will be
replaced with the words "sixty (60) days".
(iii) SECTION P -MISCELLANEOUS PROVISIONS; .. A'ITACHMENI"S"
The cmang Exhibit B tided .. Aa,WWW far Electric Service" will be
replacccl in its mtin:ty with tbe new _,.,,.,,.. Exhibit 8 tided "Agrrm.eut
tor E1ec1ric: Service" dfectiw October' I, 1 WT.
IN ~ WHEREOF, the parties have signed this Amendment acknowledging
their agreement to its terms as of the Effective Date.
ACCEPTED BY COMPANY: ACCEPTED BY CUSTOMER!
By: ·Siu LL e__
J Cr~,._; (2 -htec,c L-c CL'U
Name
Title Title
V P (} c..vi. 4-ha.,p tw)-
Date Signed
to/ n/'1-'2
Date Signed 1
2
Agreement for Electric Service
Agreement No.
AccountNo.
EXHIBITB
6K4-00024
r,oo..m1.99
American Airlines, Inc .. a Delaware corporation, hereinafter called ("Customer"), and Texas
Utilities Electric Company, a Texas Corporation (hereinafter called "Company"'), in
consideration of the mutual covenants and agreements herein contained, and or the mutual
benefits to be derived berefrom, hereby covenant and agree as follows:
I) Company ~ to provide and Customer agrees to take and pay b all electric power
md energy required by Cmtomc:r for the operation of Customer's business ,y activity at
the~ owned or occupied by Customer at 2000 F.ap Partway, Fort Worth. Texas,
otherwise known as the Alliance Fen Worth M•inter,snu ,t &gineeaing Base. Electric
power and energy under-this agreement will be furnished by Company to r.ustnener undf.2-
and pursuant to such Rate Schedule and Service Regulations of On,pany as may from
time to time be fixed md approved, in Company"s Tariff for EJedric Service, by
regulatory authorities as may have jurisdiction at the above referenced p-c:mises. SAID
RATE SCHEDULE AND SERVICE REGULATIONS ARE PART OF 1lIIS
AGREEMENT TO TIIE SAME EXTENT AS IF FUlL Y SET OUT HEREIN AND
ARE ON FILE AND AVAILABLE AT COMPANY OFFICES.
Cwitomer will be billed for electric service povided bcreundc:r pursuant to Comi-iy's
Rate Schedule titled Rate GC -General Service Competitive Pricing -Primmy, and the
Moothly Rate for Cum=nt Month kW pursuant to said Rate GC shall be S7.80 per kW.
SaidMootbly Rate fer Currmt Month kW shall remain fiud throughout the Initial Term
of this .Aarermmt, but all other charges pursuant to Rm GC are subject to cbana,::. by
regulatory authorities having jurisdiction over Company's sales to Customer at the above
desalbed location. •
2) Company shall provide electric power-up to a demand of 14,000 kW. Any future
changes in this demand level will be subject to Company's extemion policy a., approved
and on file at the appropriate regulatory authority and the other terms and conditions of
Company's then-approved Tariff for Electric Service. The electric service to be
delivered bcreundcr will be of the character commonly descn"bed as 24,940 volt, three
phase, at 60 hertz, with reasonable variation to be allowed. The electric power and
energy to be delivered by Company to Customer shall be provided in accordance with
terms and conditions of Company's Rate Schedule titled General Service Primary, which
may from time to time be amended or succeeded. The tmn of this Agreement shall be
for four (4) years from October 1, 1997. This agreement shall be continued thereafter
iml~ terminated by written notice served not less than 60 days before the desired
termination date, provided that electric service provided hereunder after the aforesaid
Initial Term shall be billed pursuant to the Company's Rate Schedule tided General
Service Primary, as same may be in effect at that time and from time to time thereafter
pursuant to orders of regulatory authorities having jurisdiction.
3
EXBIBITB
3) Customer agrees to grant or secure for Company, at Customer's expense, aoy rights-of-
way on property owned or controlled by Customer and to provide suitable space on said
premises for installation of facilities where such rights-of-way and space are necessary to
provide electric service to Customer.
4) This Agreement supersedes all previous agreements, written or verbal, between Company
aod Customer for the service descnbcd herein and shall inure to the benefit of and be
binding upon the respective heirs. legal representatives successors and a.,sigm of the
parties hereto, but no assignment by Customer shall be binding upon Company uotil
accepted in writing by Company. This Agreement is subject to all laws and
governmental regulations and to the provisions of Company's franchise now in effect or
which may hereafter become effective.
5) Customer and Company hereby agree that in the evem that the Construdioo aod Lease
Agreement executed by Customer and Company for the construction aod lc:asc of an 01r
site electric distn"bution system at the above service address is te:rminatcd or apires, the
electric power and energy to be delivered by Company to Customer hereunder !hall be
pvvided in accordance with the tams and cooditions of applicable Rae Schedules,
which may from time to time be amended or succ=ded.
6) In the event that either party hereto terminates semce under this Agreement and
Customer seeks to reestablish such service at some later date, such reestablidanmt shall
be pursuant to Company's line exterui:ion policy as approved and on file at the appropriate
regulatory authority and the other . terms and conditions of Company's thm-approved
Tariff for Electric Service.
ACCEPI'ED BY CO:MP ANY: ACCEPTED BY CUSfOMER:
Si:1-£ tL LL
Title
V f (' '=di kt>( iry
Date Signed
4
CONSENT TO ASSIGNMENT AND AMENDMENT
1. Ameri.can Airlines, Inc. ("Consenting Party") hereby consents to the assignment by TXU
Electric Company (successor in interest of Texas Utilities Electric Company) (the
"Assignor") effective 11:59 p.m. on August 31, 2000 (the "Date of Assignment"), to TXU
Energy Services Company, (the "Assignee") of all of Assignor's rights, benefits and interests
(except as set forth in paragraph 3, below) in, to and under the Construction and Lease
Agreement (the "Agreement") attached hereto as Exhibit "A".
2. Except as set forth in paragraph 3, below, the Consenting Party also hereby consents to
Assignee acceding to all rights and obligations of Assignor under the Agreement and the
Consenting Party will not look to Assignor for performance of the Agreement after the Date
of Assignment. This consent does not constitute the release of Assignor by the Consenting
Party with respect to any duties, liabilities, or obligations that arose prior to the Date of
Assignment.
3. Notwithstanding the prov1S1ons in paragraphs 1 and 2 above, the Consenting Party
acknowledges and agrees that Section C -Purchase of Electric Service of the Agreement will
continue to be provided to the Consenting Party by Assignor (and not by Assignee) under
that certain Agreement for Electric Service dated October 28, 1997 (attached as Exhibit "B"
to the Agreement) for the remainder of the term of that Agreement for Electric Service and
continuing until December 31, 2001.
4. This consent does not constitute a waiver by the Consenting Party of any rights or a consent
to any subsequent assignment of the Agreement.
The Consenting Party represents and warrants that it is not required to obtain the consent of
any third party to enter into this Consent to Assignment.
DATED A4t 3.J
American Airlines, Inc.
a Delaware corporation
,2000.
By:~ Its: _ _...,_ __________ _
C:\WINOOWS\TEMP\AMERICAN AIRLINES CO NSEITTTO ASSIGN(2).WPD
TXU Electric Company
a Texas corporation
By:/d;J/{!,~
Its: ___________ _
TXU Energy Services Company
a Texas co oration
By: --Al~!l-ff-------===---
Its: __ 'nt--t-t--~-------
CONSENT TO ASSIGNMENT AND ASSUMPTION OF AGREEMENT
THIS CONSENT TO ASSIGNMENT AND ASSUMPTION OF AGREEMENT (the "Consent"), by and
among American Airlines , Inc. ("Assignor"), TXU Energy Retail Company LLC, as successor in interest
to TXU Energy Services Company ("TXU''), and AllianceAirport Authority, Inc. ("Assignee," and
collectively with Assignor and TXU, the "Parties"), is made and entered into as of July 25, 2014 (the
"Execution Date").
RECITALS:
A. Assignor and TXU are parties to that certain Construction and Lease Agreement, dated
September 25, 1990 (as amended, modified, or supplemented from time to time, and together with all
exhibits and appendices , the ''Lease Agreement"), a true and correct copy of which is attached hereto as
"Attachment l."
B. Assignor and TXU are parties to that certain Agreement for the Supply of Electricity,
dated June 11, 2014 (the "Agreement for the Supply of Electricity.'' and together with the Lease
Agreement, the "Utility Agreements"), a true and correct copy of which is attached hereto as "Attachment
;?,."
C. Assignor is a reorganized debtor under Chapter 11 of the United States Bankruptcy Code
(the "Bankruptcy Code") in the cases styled "In re AMR Corporation, et al.," pending in the United States
Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court"), Case No. 11-15463
(SHL) (Jointly Administered) (the "Chapter 11 Cases").
D. Subject to the approval and authorization of the Bankruptcy Court, Assignor desires to
assign its rights under the Lease Agreement pursuant to Section 365(t) of the Bankruptcy Code to
Assignee, a Delaware limited liability company , and Assignee desires to assume all of Assignor's
obligations under the Lease Agreement.
E. If the assignment of the Lease Agreement by Assignor to Assignee is to become effective
before the termination of the Agreement for the Supply of Electricity, Assignor desires to assign its rights
under the Agreement for the Supply of Electricity to Assignee, and Assignee desires to assume all of
Assignor 's obligations under the Agreement for the Supply of Electricity, concurrently with the
assignment of the Lease Agreement.
F. TXU has agreed , subject to the terms and conditions stated herein, to consent to such
potential assignments and assumptions.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing premises, and other good and valuable
consideration, receipt and sufficiency of which are hereby acknowledged , TXU, Assignor and Assignee
hereby covenant and agree as follows:
1. The Parties agree that notwithstanding the Execution Date of this Consent, this Consent
does not represent an assumption or assignment of the Utility Agreements or entry into a new postpetition
agreement and no such assumption or assignment shall be effective unless and until such date as (a) the
500313.10
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Assignor and Assignee have reached a final agreement, that becomes effective, for the assignment of the
Utility Agreements, and (b) the Bankruptcy Court enters an order authorizing and approving the
assumption and assignment of the Lease Agreement that, by the applicable provisions of the Bankruptcy
Code and any applicable rules, becomes final and non-appealable (the "Assignment Date"). Accordingly,
the Parties agree that the Utility Agreements shall not be assumed or assigned to Assignee before the
Assignment Date. Nothing in this Consent shall require the Assignor to assign the Utility Agreements to
Assignee. Unless and until the occurrence of the Assignment Date, or as otherwise provided herein,
Assignor shall remain responsible for performance of all its obligations under the Utility Agreement and
the Agreement for the Supply of Electricity.
2. In the event that the Utility Agreements are assigned to Assignee, TXU hereby consents
to Assignor's assignment to Assignee of all of Assignor 's rights and . obligations under the Utility
Agreements (subject to the agreed terms and conditions set forth herein), notwithstanding any
prohibitions against such assignments contained in the Utility Agreements, as of the Assignment Date.
Effective on the Assignment Date, TXU hereby releases Assignor from, and waives any claim against
Assignor for, claims or obligations arising under the Utility Agreements on or after the Assignment Date
except as may be mutually agreed upon in writing between the Parties or provided herein.
3. In the event that the Lease Agreement is assigned to Assignee, on the Assignment Date,
TXU agrees that to the extent it has claims (as defined in the Bankruptcy Code) arising prior to the
Execution Date against Assignor under previous Agreements for the Supply of Electricity (the "Prior
ASE Agreements Claims"), Assignor shall allow and cure such Prior ASE Agreements Claims by
payment to TXU of any portion of such Prior ASE Agreements Claims, not to exceed $165,837.70, that
have not been paid as a distribution on account of general unsecured claims in the Bankruptcy Case (the
"Cure Amount"). In the event the Assignment Date occurs and Prior ASE Agreements Claims remain
unpaid, Assignor shall pay the Cure Amount to TXU within five (5) business days after the Assignment
Date. In such an event, TXU expressly agrees that (a) the Cure Amount constitutes full and final
satisfaction of any claims (as defined in the Bankruptcy Code) that TXU may have solely under the
previous Agreements for the Supply of Electricity against Assignor or any of its debtor affiliates arising
prior to the Execution Date; (b) TXU shall not take any action whatsoever to recover, collect, or assert
any Prior ASE Agreements Claims against Assignor or Assignee, with the exception of enforcing its right
to payment of the Cure Amount, and ( c) Assignor and Assignee have provided adequate assurance that
Assignee will perform under the terms of the Lease Agreement after the Assignment Date, subject to
TXU's right to request, pursuant to TXU's then standard credit guidelines, that Assignee provide
additional security for electric power and energy to be delivered to the Project following the Assignment
Date and expiration of the Agreement for the Supply of Electricity. Assignor shall be responsible for the
performance of all obligations arising prior to the Assignment Date, and TXU hereby releases Assignee
from any responsibility for payment of charges for electricity provided to the Project prior to the
Assignment Date in accordance with both the Prior ASE Agreements and the current Agreement for
Supply of Electricity.
4. To the extent that the Utility Agreements are assigned to Assignee, Assignee hereby
agrees to assume the duty to perform all of Assignor's obligations under the Utility Agreements, both
monetary and non-monetary, and assume all legal liability for failure to perfonn any such obligation as of
the Assignment Date.
5. The Parties acknowledge that all terms of the Utility Agreements remain in full force and
effect, except as otherwise provided herein. Assignee agrees that from the Assignment Date throughout
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the term of the Lease it shall be a full-requirements electric service customer, directly or indirectly, of
TXU and shall receive all of the electric power and energy for the Project (as defined in the Utility
Agreement) directly or indirectly from TXU and shall not receive electric power from any other retail
electric provider. Beginning on the Assignment Date and continuing throughout the term of the Lease, in
accordance with the Lease, Assignee will purchase all electric power and energy for the Project directly
from TXU, using TXU's then current standard contract fonn terms and conditions for large commercial
and industrial customers.
6. This Consent shall be governed by, construed, interpreted and applied in accordance with
the laws of the State of Texas , without giving effect to any conflict of laws rules that would refer the
matter to the laws of another jurisdiction.
7. This Consent constitutes the full and complete understanding of the Parties with respect
to the subject matter of this Con sent and supersedes all prior agreements and understandings with respect
to the subject matter. This Consent may be modified only by written agreement signed by an authorized
representative of each of the Part ies.
8. This Consent Agreement may not be modified or an1ended without the express written
consent of the Parties.
9. This Consent may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument. Signature
pages may be detached from the counterparts and attached to a single copy of this Consent to physically
form one document.
[Remainder of Page Intentionally Blank; Signatw-es to Follow]
500313 .10
Page 3 of 6
IN WITNESS WHEREOF, the Parties hereto have executed this Consent as of the date
first above written.
TXU: ASSIGNOR:
TXU Energy Retail Company LLC American AirJines, Inc.
By:
Title:
ASSIGNEE:
AllianceAirport Authority, Inc.
By:
Title:
500313,I0
Page4 of4
IN WITNESS WHEREOF, the Parties hereto have executed this Consent as of the date
first above written.
TXU: • ASSIGNOR:
TXU Energy Retail Company LLC
By:
Title:
~----
T. I . Timothy Sldpworlt,
it e: V'loe Plllldllnt• AlrpltAllb & ,.._
ASSIGNEE:
AllianceAirport Authority, Inc.
By:
Title:
5003)3,10
Page4 of6
IN WITNESS WHEREOF, the Parties hereto have executed this Consent as of the date
first above -written.
TXU: ASSIGNOR:
TXU Energy Retail Company LLC American Airlines, Inc.
By: By:
Title: Title:
ASSIGNEE:
AllianceAirport Authority, Inc,
By: Fernando Costa
Title: its Authorized Representative
APPROVED AS TO FORM AND LEGALITY:
Deputy City Attorney
Resolution No . AAA-2014-03
500313.10
Page4 of6
500313 .10
ATTACHMENT 1
Copy of Utility Agreement
(see attached)
Page 5 of 6
500313.10
ATTACHMENT 2
Copy of Agreement for the Supply of Electricity
(see attached)
Page 6 of 6
;,.
BASE CONTRACT FOR SUPPLY OF ELECTRICITY
~,TXU
\~energy
Th is Base Contract for the Supply of Electricity ("Base Contracf') (including any addendums thereto), together with any Transaction
Confirmation for Supply of Electricity (''Transaction Confinnation") (including any attachments thereto, such as Exhibits A and A-1) as
may be hereafter agreed to (each such combination of this Base Contract and a single Transaction Confirmation, collectively, an
"Agreemenf'), is entered into by and between TXU ENERGY RETAIL COMPANY LLC , a Texas limited liability company ("Seller"), and
ALLIANCE AIRPORT AUTHORITY, INC., an industrial development corporation ("Buyer"), and shall constitute the agreement for the
supply of electricity to each TDSP Po int of Delivery of Buyer set forth in Exhibit "A" of the applicable Transaction Confirmation . A condition
precedent for the effectiveness of an Agreement shall be the execution of (i) this Base Contract and (ii) a separate Transaction
Confirmation, including Exhibits A and A-1 . Seller and Buyer may hereinafter be referred to individually as a "Party'' and collectively as the
"Parties".
I. DEFINITIONS
"Agreement Tenn" means the time period during which an Agreement is effective as spec ifi ed in Article I of the applicable Transaction
Confirmation.
"Charges" means the amount due to Seller under a Transaction Confirmation .
"Contract Price" has the meaning set forth in a Transaction Confirmation .
"ERCor• means the Electric Reliability Council ofTexas, Inc.
"ESI ID" means an Electric Service Identifier designation for a particular TDSP Point of Delivery .
"POLR" means the provider of last resort as designated by the PUCT.
"Power" means all of Buyer's non-residential electricity requirements for each of the Premise(s).
"Premise" means individually, and "Premises" means collectively , each parcel of real property and improvements identified on Exhibit A to
the applicable Transaction Confirmation .
"PUCr' means the Public Utility Commission ofTexas.
"REP" means a retail electric provider that is certified by the PUCT.
"Seller Point of Delivery" means the point where Seller's suppliers' conductors are connected to the applicable TDSP's conductors.
"TDSP" means a transmission and/or distribution provider under the jurisdiction of the PUCT that owns and maintains a transmission or
distribution system for the delivery of energy.
''TDSP Point of Delivery'' means the point where the applicable TDSP's conductors are connected to Buyer's conductors at or near Buyer's
Premise(s).
II. SUBJECT MATTER AND QUANTITY. During an Agreement Term, Seller shall sell to Buyer and Buyer shall purchase from Seller all of
Buyer's Power for the Premise(s) listed in Exhibit A to the applicable Transaction Confirmation. Seller shall cause delivery of the Power to the
applicable Seller Point(s) of Delivery and Buyer shall receive the Power at the ES! ID(s) at the applicable TDSP Point(s) of Delivery. Buyer
shall use the Power only at the listed Premise(s). A Premise may have one or more TDSP Points of Delivery .
111. SECURITY AND CREDIT REQUIREMENTS. If applicable, on or before the date stated in the section entitled "Initial Security'' of Article IV
of the applicable Transaction Confirmation , Buyer shall provide the amount of security, if any, stated in Article IV of such Transaction
Confirmation(s). Additionally, if during an Agreement Term Seller determines in good faith that there has been a material adverse change in
Buyer's credit status or financial condition and/or in electricity mar1<et conditions and/or Buyer fails to pay all Charges when due, Seller may
demand security (or additional security if initial security was previously provided) from Buyer in an amount and form reasonably acceptable to
Seller. Buyer shall provide security to Seller within five business days of such request Seller shall return the security, less any amounts owed
by Buyer under the applicable Agreement, when Seller reasonably determines that such security is no longer necessary.
IV. CALCULATION AND PAYMENT OF CHARGES.
4.1 Seller will invoice Buyer for the Charges listed in the applicable Transaction Confirmation for Power delivered to the Premise(s) during
each monthly billing cycle of the Agreement Term . Buyer shall pay Seller the Charges identified on each invoice on or before the end of the
time period listed in Article Ill of the applicable Transaction Confirmation. All past due amounts owing by Buyer under an Agreement shall
accrue interest from the date the payment was originally due until paid (including accrued interest) at a rate equal to the lesser of (a) three
percent (3%) above the "Prime Rate" as published from time to time in The Wall Street Journal under "Money Rates" or an appropriate
substitute should such rate cease to be published, or (b) the highest rate allowed by law.
4.2 (a) Seller reserves the right to allocate measured consumption to the applicable calendar month for any ES! IDs not installed with an
interval data recorder ("IDR''), or for IDRs for which !DR information was not received by Seller in a usable format
(b) If, for whatever reason, the proper meter readings are not communicated to Seller by the TDSP in time for Seller to prepare the invoice for
the Charges for a monthly billing cycle, Seller shall have the right to invoice Buyer for a reasonable estimate of the quantity of the electricity
consumed , and Buyer shall pay the Charges for the estimated amounts subject to any adjustments which may be necessary following the
reading .
(c) It is recognized by the Parties hereto that ERGOT has established time periods for disputing and/or correcting certa in matters related to the
settlement of energy charges . Therefore, notwithstanding any other provisions of an Agreement , in the event of a dispute and/or possible
correction, relating to an Agreement , which would involve a settlement with ERCOT that is barred by ERCOT (an "ERGOT Barred Issue"),
then, to the extent that adjustment or settlement of such matter via the ER COT energy settlement process cannot occur as a result of it being
an ERCOT Barred Issue, the subject statement, invoice, notice or other matter that is at iss ue under such Agreement may not be adjusted, but
only with respect to such ERCOT Barred Issue .
4.3 Except as may be prohibited by law, Seller, in its sole discretion, may (as a result of PUCT rules that forbid a REP from switching a
customer to the POLR) direct the TDSP to disconnect electric service to the Premise(s) under an Agreement (i) upon expiration or termination
of such Agreement for any reason, if Buyer has not executed a replacement agreement with Seller or switched to another electricity provider
for the applicable Premise(s), or (ii) at any time thereafter, until Buyer either executes a replacement agreement with Seller or switches to
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another electricity provider for the applicable Premise{s). In any event, if Seller is ever determined to have been Buyer's electricity supplier for
a period after the expiration or termination of an Agreement, then Seller may charge Buyer, as the contract pricing for Power utilized at such
Premise(s) during such period, a price per kWh equivalent to Seller's then current "standard list price offer," and the other terms governing
such sale shall be identical to those applicable to sales that occurred prior to the termination/expiration of the Agreement
4.4 (a) If {i) Buyer changes any TDSP Point of Delivery for a Premise to a delivery service voltage level that is different than the voltage level
in place for such TDSP Point of Delivery at the time the Agreement covering such Premise became effective , (ii) Buyer changes the existing
electric meter at any TDSP Point{s) of Delivery for a Premise to a different size/capacity than the size/capacity in place at the time the
Agreement covering such Premise became effective, {iii) Buyer causes the ERGOT Deemed Load Profi le Type for any of its Premise(s) to
change, or [iv) Seller's cost to serve Buyer under an Agreement is otherwise increased as a result of judicial, governmental, quasi-
governmental {e .g., ERGOT) or regulatory action {including , but not limited to, actions with regard to congesti on zones, nodal
congestion, carbon cap/tax/trade/remediation, renewable energy sources or standards, etc.), then Seller may adjust the Contract Price
under the affected Agreements in order to reflect the increased cost to Seller of serving Buyer thereunder as a result of any such change(s).
Seller shall provide Buyer with written notice of the adjustment to the Contract Price pursuant to this Section 4.4 , along with a written
explanation of the change that includes the effective date of the adjustment and the circumstances giving rise to the increased cost to Seller.
Provided, however, in the event that Seller ever does so adjust the Contract Price under an Agreement pursuant to this Section 4.4, Buyer
shall have the right, within thirty (30) calendar days after Seller's notice of such increase in the Contract Price, to terminate such Agreement
upon thirty (30) calendar days prior written notice to Seller, provided further, however, in the event that Seller should sustain a loss in
liquidating the remaining Power quantities under the Agreement as a result of Buyer exercising such right to terminate the Agreement, Buyer
agrees to reimburse Seller the amount equal to the product of (I) the remaining quantities of electricity reflected on Exhibit A-1 after such
termination multiplied by (11) the Contract Price minus the then current market value as reasonably determined by Seller. Such amount shall be
due and payable on or before the date of Buyer's termination.
(b) During an Agreement Term, Buyer shall not consume electricity at any Prem ise{s) from any source 0ncluding self-generation) except for
Power sold by Seller under an Agreement; however, Buyer may consume electricity from emergency generation during power outages at the
Premise{s) and for purposes of testing such emergency ge neration .
V. ADDITION AND REMOVAL OF PREMISES.
5 .1 Buyer shall be entitled to add one or more Premise{s) (and associated electricity quantities as reasonably determined by Seller) to
an existing Agreement by submitting a written request to add the Premise(s) on Seller's then current standard form for such a request
and by agreeing to pay Seller an additional lump sum amount under such existing Agreement, the positive amount, if any, calculated as
follows: the sum of {i) the product of (A) the kWh amount of electricity attributable to the additional Premise(s) for the remainder of the
Agreement Term as reasonably determined by Seller (the "Premise Addition Quantities") multiplied by (8) the then current market
based price of a kWh as reasonably determined by Seller minus the Contract Price under such existing Agreement plus (ii) Seller's
reasonable costs incurred to perform the addition (such sum, the "Premise Addition Payment''). In such event, the additional
Premise(s) and associated electricity quantities shall be added to the Agreement and thereafter shall be subject to the Charges ,
monthly usage tolerances, and other terms of such existing Agreement for the balance of the Agreement Term. Buyer shall pay Seller's
invoice for each Premise Addition Payment on or before the end of the time period listed in Article Ill of the applicable Transaction
Confirmation . In the alternative , Buyer shall have the option to enter into a new separate Agreement with Seller covering the additional
Premise{s) at Seller's then-current market based prices . Buyer also shall have the right to contract for such additional Prem ise(s) with
another REP, in lieu of adding the Premise(s) to an existing Agreement with Seller or covering the Premise(s) under a new Agreement
with Seller.
5.2 Buyer may remove one or more, but not all, Premise{s) (and associated electricity quantities as reasonably determined by Seller) from an
Agreement only if Buyer either {a) sells or leases such Premise(s) or (b) closes such Premise(s) for the remainder of the Agreement Term .
Buyer shall provide Seller with thirty calendar days prior written notice (specifying each applicable Premise and the date of removal) if it intends
to remove one or more Premise(s) from an Agreement. Unless Buyer sells or leases a removed Premise, as of the date of removal, to a
purchaser or lessee who (x) first executes a new contract with Seller upon the same terms as Buyer's contract and (y) is creditworthy as
determined by Seller in Seller's reasonable discretion , Buyer shall pay to Seller in respect of each such removed Premise the positive amount,
if any, as follows : the product of (i) the kWh amount of electricity attributable to such Premise for the remainder of the Agreement Term as
reasonably determined by Seller {the "Premise Liquidated Quantities") multiplied by (ii) the Contract Price under such Agreement minus
ninety-five percent (95.0%) of the then-current market value of a kWh as reasonably determined by Seller (such product, the "Premise
Liquidation Payment"). Buyer shall pay Seller's invoice for each Premise Liqu idation Payment on or before the end of the time period
listed in Article Ill of the applicable Transaction Confirmation .
VJ. REMEDIES UPON TERMINATION.
6.1 A "Material Breach" of an Agreement means : (a) the failure of either Party to make any payment due to the other Party pursuant to the
terms of such Agreement when such failure is not cured within 10 calendar days following written notice of such failure describing the breach in
reasonable detail; (b) the failure of a Party to comply with any other material term of such Agreement when such failure is not cured within 30
calendar days following written notice of such failure describing the breach in reasonable detail; (c) a Party becomes or declares that it is
bankrupt, or becomes or declares that it is the subject of any proceedings, or takes any action whatsoever, relating to its bankruptcy or
liquidation , or is not generally paying its debts as they become due; (d) Buyer enters into another electricity supply agreement, with another
party, that covers any Premise(s) during a time when such Premise(s) is covered by such Agreement; (e) Buyer sells, leases, closes or
otherwise conveys or assigns any of the Premise(s) under such Agreement, except as allowed under Article IV of the applicable Transaction
Confirmation, or Article V or Section 12.2 hereof, {f) any representation of a Party hereunder is not true and correct in all material respects as of
the date an Agreement is entered into; or (g) the failure of Buyer to timely pay security to Seller as may be required hereunder. In the event of
a Material Breach of an Agreement by either Party, the non-breaching Party may, in its sole discretion, and without prejudice to any other rights
under such Agreement, at law or in equity, immediately terminate the Agreement
6 .2 (a) If Seller terminates an Agreement due to a Material Breach by Buyer, (i) Seller may (as a result of PUCT rules that forbid a REP from
switching a customer to the POLR) direct the TDSP to disconnect electric service to the Premise(s) covered thereunder, except as may be
prohibited by law, and (ii) within 30 calendar days following such termination, Buyer shall pay Seller, in addition to all reasonable direct costs
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and expenses incurred by Seller as a result of such Material Breach and term ination , and all amounts Buyer owes Seller with respect to time
periods prior to the termination , the positive amount, if any, calculated as follows as of the date of termination : the sum of (A) the product of
(I) the remaining quantities of electricity for the remainder of the Agreement Term as reflected on Exhibit A-1 (the "Remaining Quantities")
multiplied by (II) the Contract Price under such Agreement minus the then-current market value of a kWh as reasonably determined by Seller
plus (8) the value of any term extension option rights, if any , that Seller may have under the Agreement
(b) If Buyer terminates an Agreement due to a Material Breach by Seller, (i) Buyer shall have the right to select any other REP as its electricity
provider, and (ii) within thirty (30) calendar days following such termination, Seller shall pay Buyer, in addition to all reasonable direct costs and
expenses incurred by Buyer as a result of such Material Breach and termination, the positive amoun~ if any , ca lculated as follows : the product
of (A) the Remaining Quantities multiplied by (8) the sum of (I) the lesser of (1) the then current market value of a kWh as reasonably
determined by Seller, (2) the price offered by the POLR, or (3) any REP's sta ndard list price offer (or equivalent or similar pricing), minus (II) the
Contract Price.
VII. FORCE MAJEURE. If either Party is unable to perform its obligations, in whole or in part, due to an event of Force Majeure as defined
herein, then the obligations of the claiming Party (other than the obligations to pay any amounts arising prior to the Force Majeure event) shall
be suspended , for the duration of such Force Majeure even~ to the extent made necessary by such Force Majeure event The term "Force
Majeure" shall mean any act or event that is beyond the claiming Party's control (and which could not be reasonably anticipated and
prevented through the use of reasonable measures), including, without limitation, the failure of the TDSP to receive , transport or deliver, or
otherwise perform, unless due to the failure of the Party claiming Force Majeure to perform such Party's obligations hereunder, and an event of
Force Majeure that affects Seller's suppliers . Toe Party suffering the event of Force Majeure shall give written notice of such event of Force
Majeure in reasonably full particulars to the other Party , as soon as reasonably possible , and shall take all reasonable measures to reduce as
much as practicable the duration of such Force Majeure event. Force Majeure shall not include (a) the opportunity for Seller to sell the
electricity to be sold under the Agreement to another party at a higher price than that set forth in the Agreement , (b) the opportunity for Buyer to
purchase electricity for its Prem ise(s) from another party at a lower price than that set forth in the Agreement , or (c) the in ab il ity of either Party
to pay its obligations under the Agreement or any other of its obligations or debts as they become due .
VIII. WARRANTIES AND LIMITATIONS OF LIABILl11ES.
8.1 SELLER HEREBY WARRANTS TO BUYER THAT AT THE TIME OF DELIVERY OF ELECTRICITY HEREUNDER IT WILL HAVE
GOOD TJnE AND/OR THE RIGHT TO SELL SUCH ELECTRICITY , AND THAT SUCH ELECTRICITY WILL BE FREE AND CLEAR OF
ALL LIENS AND ADVERSE CLAIMS . 11nE WILL PASS TO BUYER AT THE TDSP POINT OF DELIVERY. EXCEPT AS PROVIDED FOR
IN THE FIRST SENTENCE OF THIS SECTION 8.1, SELLER EXPRESSLY DISCLAIMS AND MAKES NO WARRANTJES, WHETHER
WRITTEN OR VERBAL, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS,
IMPLIED, OR STATUTORY WARRANTJES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND BUYER
WAIVES ALL SUCH WARRANTIES.
8.2 UNLESS OTHERWISE EXPRESSLY PROVIDED HEREIN, ANY LIABILITY OF A PARTY TO THE OTHER PARTY UNDER AN
AGREEMENT WILL BE LIMITED TO DIRECT ACTUAL DAMAGES AS THE SOLE AND EXCLUSIVE REMEDY, AND ALL OTHER
REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR
CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNl11VE, EXEMPLARY OR INDIRECT DAMAGES, INCLUDING LOST PROFITS OR
OTHER BUSINESS INTERRUPTION DAMAGES, WHETHER IN TORT OR CONTRACT OR OTHERWISE IN CONNECTION WITH THE
AGREEMENT. THE LIMITATIONS IMPOSED IN THIS PARAGRAPH ON REMEDIES AND DAMAGE MEASUREMENT WILL BE
WITHOUT REGARD TO CAUSE OF THE DAMAGES, INCLUDING NEGLIGENCE OF ANY PARTY, WHETHER SOLE, JOINT,
CONCURRENT, ACTIVE OR PASSIVE; PROVIDED NO SUCH LIMITATION SHALL APPLY TO DAMAGES RESULTING FROM THE
WILLFUL AND INTENTIONAL MISCONDUCT OF ANY PARTY, OR TO DAMAGES COVERED BY ANY INDEMNIFICATION
HEREUNDER.
IX. NOTICES . All notices required or permitted under an Agreement shall be in writing and shall be deemed to be delivered (a) when (i)
deposited in the United States mail (first class as to all notices other than disconnection , termination and/or material breach notices, and
registered or certified as to all disconnection , termination and/or material breach notices), postage prepaid or (ii) deposited with an overnight
delivery service, prepaid, to Buyer's address or Seller's address as shown in the applicable Transaction Confirmation , or to such address as
either Party may from time to time designate as its address for notices hereunder, or (b) in the case of hand de livery , when delivered to a
representative of either Party by or on behalf of the other Party .
X. APPLICABLE LAW AND REGULATIONS.
10.1 Toe applicable Tariff(s) for Retail De livery Service of the appropriate TDSP(s) servin g Buyer's Premise(s) is in corporated herein to the
same extent as if fully set forth herein .
10.2 All Agreements are subject to , and both Parties agree to obey and comply with, all applicable laws, regulations , rules and orders .
However, notwithstanding the foregoing , both Parties agree that , to the fullest extent allowed by law, (a) it is their intention to agree to terms
and conditions different from those set forth in the PUCTs "Customer Protection Rules for Retail Electric Service " as amended, or as may be
amended in the future (the "Customer Rules"), currently beginning with Section 25.471 of the PUCTs SubstanUve Rules Applicable to Electric
Service Providers ; (b) in the event that there is any conflict between the terms contained in an Agreement and the Customer Rules , the
Agreement shall control ; and (c) each Party has expressly acknowledged that certain terms and conditions addressed in the Customer Rules
may not be provided for or referred to in an Agreement, and , in such event it is the intent of the Parties that such terms and conditions are not
applicable to the Parties.
10 .3 In the event a j udicial , governmental , regulatory, er quasi-governmental decision or order, a new law or regulation , or a chan ge in law or
regulation (i) renders illegal or unenforceable the pricing (or components thereof) under an Agreement, or (ii) materially and directly
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adversely affects a Party's ability to perform its material obligations under an Agreement to the extent that the performance of such
obligations would be illegal or unenforceable , then (except as to those events covered by Section 4.4 (a) hereof) the Party that is
adversely affected shall have the right to notify the other Party , within forty-five (45) calendar days after becoming aware of such
detrimental change . Upon any such notification , the Parties shall use commerc ially reasonable efforts to negotiate a mod ification of the
Agreement so as to mitigate the impact of the event If, after thirty (30) calendar days beyond the date of notice, the Parties have been
unable to negotiate a mutually satisfactory modification to the terms of the Agreement, the adversely affected Party shall have the ~ht
to terminate the Agreement upon ten (10) calendar days prior written notice to the other Party , given within sixty (60) calendar days after the
date of the original notice hereunder. In the event of such a termination, the Parties agree to settle as follows : (a) if Seller is the terminating
Party, then if the then current market value per kWh (as reasonably determined by Seller) of the Remaining Quantities (as defined in Section
6.2(a} above) is greater than the Contract Price, Seller shall pay to Buyer the product of (i) the Remaining Quantities multiplied by (ii) such
market value minus the Contract Price; (b) if Buyer is the terminating Party, then if the Contract Price is more than the then current market
value per kWh (as reasonably determ ined by Seller) of the Remaining Quantities, then Buyer shall pay to Seller the product of (i) the
Remaining Quantities multiplied by (ii) the Contract Price minus such market value ; provided , however, if the detrimental change results in both
Parties being an adversely affected Party entitled to terminate the Agreement pursuant to this Section 10 .3, then in the event of a termination
under this Section 10 .3, there shall be no settlement payment from one Party to the othe r with regard to the remaining unused Power
quantities.
XI . INDEMNIFICA TJON.
11 .1 As between the Parties, Buyer assumes full responsibility for electric energy on Buyer's side (downstream) of the TDSP Point of Delivery,
and agrees to and shall indemnify, defend , and hold harmless Seller, its parent company and all of its affiliates (except any which may be the
TDSP serving Buyer's Premise(s)), and all of their respective officers, directors , shareholders , associates, employees , servants , and agents
(hereinafter collectively referred to as ''Seller Group"), from and against all claims , losses , expenses , damages , demands , judgments, causes
of action, and suits of any kind (hereinafter co ll ectively referred to "Claims''), including Claims for personal injury, death, or damages to
property, occurring on Buyer's side of the TDSP Point of Delivery, arising out of or related to electric power and energy and/or Buyer's
performance under an Agreement
11 .2 As betv.,,en the Parties, Seller assumes full respons ibility for electric energy on Se ll er's side (upstream) of the Seller Po int of De li very,
and agrees to and shall indemnify, defend , and hold harmless Buyer, its parent company and all of its affiliates, and all of their respective
officers, directors, shareholders, associates, employees, servants, and agents (hereinafter collectively referred to as "Buyer Group"), from and
against all Claims, including Claims for personal injury, death, or damages to property occurring on Seller's side of the Selle r Point of Delivery,
arising out of or related to electric power and energy and/or Seller's performance under an Agreement.
XII. MISCELLANEOUS.
12.1 UCC. THE PARTIES AGREE THAT THE PROVISIONS OF ARTICLE 2 OF THE UNIFORM COMMERCIAL CODE (AS CONTAINED
IN THE TEXAS BUSINESS AND COMMERCE CODE) SHALL APPLY TO ALL AGREEMENTS HEREUNDER, IRRESPECTIVE OF
WHETHER SUCH TRANSACTIONS ARE DEEMED TO BE A SALE OF GOODS OR THE PROVIDING OF A SERVICE; HOWEVER, IN
THE EVENT OF A CONFLICT, THE TERMS AND PROVISIONS OF AN AGREEMENT SHALL CONTROL OVER THOSE CONTAINED IN
THE UCC. NOTWITHSTANDING THE FOREGOING, THE PARTIES ACKNOWLEDGE AND AGREE THAT ALL IMPLIED RIGHTS
RELATING TO FINANCIAL ASSURANCES ARISING FROM SECTION 2-609 OF THE UNIFORM COMMERCIAL CODE (AS
CONTAINED IN THE TEXAS -BUSINESS AND COMMERCE CODE) OR APPLICABLE CASE LAW APPLYING SIMILAR
DOCTRINES, ARE HEREBY WAIVED.
12.2 Assignment Neither Party may assign an Agreement in whole or in part without first obtaining the other Party's prior written consen~
which consent shall not be unreasonably withheld; provided that (a) Seller may assign an Agreement to any REP without obtaining Buyer's
prior consent and (b) Seller will not withhold its consent if Buyer makes ass ignment to a party who in Seller's reasonable opinion is
creditworthy. My assignment of an Agreement by Buyer must be in conjunction with a conveyance of legal title (fee or leasehold , as the case
may be) to all of the Premises to a single entity . Each Agreement shall inure to and be binding upon the Parties hereto, and their respective
successors and assigns ; provided that , if a Party makes an assignment of an Agreement in accordance herewith, the other Party hereby
agrees that the assign ing party is released from its future obligations under the Agreement
12.3 Entirety of Agreement The Parties each acknowledge that they are relying on their own judgment and it is their intention that each
Agreement (i) shall contain all terms, conditions, and protections in any way related to, or aris ing out of, the sale and purchase of the electricity,
and (ii) supersedes, and the Parties hereby expressly discla im any reliance upon, all prior discussions and agreements between the Parties
hereto, whether written or oral, as to the subject Premise(s). Both Parties have agreed to the wording of each Agreement and any ambiguities
therein shall not be interpreted to the detriment of either Party merely by the fact that such Party is the author of the Agreement. An
Agreement may not be modified or amended except in writing , duly executed by the Parties hereto .
12.4 Waiver of Rights. A waiver by either Party of any breach of an Agreemen~ or the failure of either Party to enforce any of the terms and
provisions of an Agreement , will not in any way affect , limit or waive that Party's right to subseq uently enforce and compel strict compliance
with the same or other terms or provisions of the Agreement
12.5 Third Party Beneficiary/Rights. Nothing in an Agreement shall create, or be construed as creating , any express or imp li ed benefits or
rights in any person or entity other than the Parties .
12.6 Survival. No termination or cancellation of an Agreement, and/or this Base Contract, will re li eve either Party of any ob ligations under an
Agreement that by their nature survive such termination or cancellation, including , but not limited to, all warranties , ob li gations to pay for Power
consumed, obligations for any breaches of contract, and obligations of indemnity .
12. 7 Confidentiality. Seller and Buyer agree to keep all terms and provisions of each Agreement confidential and not to disclose the terms of
the same to any third parties without the prior written consent of the other Party; provided , however, each Party shall have the righ t to make
such disclosures , if any , to governmental agencies and to its own agents, attorneys , aud itors , accountants and shareholders as may be
reasonably necessary . If disclosure is sought through process of a court, or a state or federal regulatory agency, the Party from whom the
disclosure is sought shall resist disclosure through all reasonab le means and shall immed iately notify the other Party to allow it the opportunity
to participate in such proceedings.
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CONFIDENTIAL Vers ion 06 .27 .2014
12.8 Forward Contract Each Agreement constitutes a "forward contract" as defined in Section 101 (25) of the U.S . Bankruptcy Code
("Bankruptcy Code"). The Parties agree that (a) Seller is a "forward contract merchant" as defined in Section 101(26) of the
Bankruptcy Code, (b) the termination rights of the Parties will constitute contractual rights to liquidate transactions, (c) any payment
related hereto will constitute a "settlement payment'' as defined in Section 101 (51A) of the Bankruptcy Code, and (d) Sections 362,
546 , 553, 556, 560, 561 and 562 of the Bankruptcy Code sha ll apply to the Parties .
12.9 Representations and Warranties. Buyer hereby represents and warrants to Seller as follows : (a) Buyer is legally authorized to
change the REP for all of the Premises, (b) Buyer's execution and delivery of an Agreement does not, and the performance by Buyer of
its obligations thereunder will not, violate any contract or agreement to which Buyer is a party or pursuant to which its assets are bound,
and (c) each Agreement is a valid and binding obligation of Buyer, enforceable against it in accordance with its terms. Upon execution
of each Agreement, Buyer authorizes Seller to become Buyer's REP for the Agreement Term as to the Premise(s) covered by such
Agreement and to act as Buyer's agent for the sole purpose of effecting any such change in REP, if necessary. If any of Buyer's
representations or warranties here inabove are untrue when made or fail to be true at all times during the Agreement Term, Buyer shall
indemnify, defend , and hold Seller harmless from and aga inst any t hird party claims (and related costs and expenses) arising out of or
relating thereto .
12.1 O Further Assurances. Buyer and Seller agree to provide such information, execute and deliver any instruments and documents and to
take such other actions as may be necessary or reasonably requested by the other Party , which are not inconsistent with the provisions of an
Agreement and wh ich do not involve the assumption of obligations other than those provided for in the Agreement, in order to give full effect to
the Agreement and to carry out the intent of the Agreement ,1 • • · •. • :1• •·· • .
12.11 Headings. The head ings included throughout this Base Contract are inserted solely for convenien~:and refe11:nce pyrpo¥,s o~ly and
shall not be construed or considered in interpreting any terms or provisions of an Agreement ' •--~ • • • • • • " • ,. ·~ •
12.1.2 Severability. If any provision in an Agreement is determined to be inva li d, void, or unenforceable by any governmental authority having
jurisdiction, then such determination will not invalidate, vo id, or make unenforceable ·any 9ther provisiG'!"or eovenaAt ir:i .tlie Agreement .
12.13 Applicable Law. ALL AGREEMENTS SHALL BE CONSTRUED AND ENFORCED IN AtcORDANC6,WIT-H THE LAWS . OF
THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAWS PRINCIPLES WH ICH OTHERWISE MIGHT BE
APPLICABLE. THE PARTIES RECOGNIZE THAT THE AGREEMENTS ARE PERFORMABLE IN PART IN DALLAS COUNTY.
12.14 Dispute Resolution. PURSUANT TO THE FEDERAL ARBITRATION ACT, THE PARTIES HEREBY AGREE THAT ANY
CONTROVERSY, CLAIM OR ALLEGED BREACH, INCLUDING BUT NOT LIMITED TO TORTS AND STATUTORY CLAIMS, ARISING
OUT OF OR RELATED TO AN AGREEMENT OR THE NEGOTIATION OF AN AGREEMENT SHALL BE RESOLVED BY BINDING
ARBITRATION CONDUCTED UNDER THE AMERICAN ARBITRATION ASSOCIATION ("AAA") COMMERCIAL ARBITRATION RULES.
DEMAND FOR ARBITRATION MUST BE MADE NO LATER THAN THE TIME THAT SUCH ACTION WOULD BE PERMITTED UNDER
THE APPLICABLE TEXAS STATUTE OF LIMITATION. ANY DISPUTES REGARDING THE TIMELINESS OF THE DEMAND FOR
ARBITRATION SHALL BE DECIDED BY THE ARBITRATOR(S). JUDGMENT UPON THE AWARD RENDERED BY THE
ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF IN ORDER TO OBTAIN COMPLIANCE
THEREWITH . ANY CASE IN WHICH ANY CLAIM, OR COMBINATION OF CLAIMS, EXCEEDS $500,000 WILL BE DECIDED BY THE
MAJORITY OF A PANEL OF THREE (3) NEUTRAL ARBITRATORS. IN RENDERING THE AWARD, THE ARBITRATOR(S) WILL
DETERMINE THE RIGHTS AND OBLIGATIONS OF THE PARTIES ACCORDING TO THE LAWS OF THE STATE OF TEXAS (WITHOUT
REGARD TO ANY CONFLICT OF LAW PRINCIPLES). ANY DISCOVERY IN ADVANCE OF THE ARBITRATION HEARINGS SHALL BE
CONDUCTED CONSISTENT WITH THE DISCOVERY PERMITTED UNDER THE FEDERAL RULES OF CIVIL PROCEDURE;
PROVIDED, HOWEVER, EACH PARTY SHALL BE ENTITLED TO: NO MORE THAN 5 DEPOSITIONS OF NO MORE THAN 5 HOURS
EACH PER SIDE, NO MORE THAN 1 WRITTEN SET OF NO MORE THAN THIRTY (30) INTERROGATORIES, AND NO MORE THAN
FIFTY (50) REQUESTS FOR PRODUCTION, UNLESS THE MAJORITY OF THE ARBITRATORS GRANT THE PARTIES THE RIGHT TO
ADDITIONAL DISCOVERY. THE ARBITRATION PROCEEDINGS AND HEARINGS WILL BE CONDUCTED IN DALLAS, TEXAS OR AT
SUCH OTHER PLACE AS MAY BE SELECTED BY MUTUAL AGREEMENT. EACH PARTY SHALL BEAR ITS OWN COSTS AND
EXPENSES (INCLUDING ATTORNEY FEES), AS WELL AS AN EQUAL SHARE OF THE ARBITRATORS' FEES AND
ADMINISTRATIVE FEES OF ARBITRATION. NO PARTY OR ARBITRATOR(S) MAY DISCLOSE THE EXISTENCE, CONTENT OR
RESULTS OF ANY ARBITRATION HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES.
12.15 Contract Execution; Counterparts; Original Documents. Each Party agrees that each Agreement, as well as any
amendments thereto , may be executed by written or electronic signature and may be delivered by facs imile or other electronic transfer
in multiple counterparts , each of which will be as binding on the Party or Parties as an original document. Each Party understands and
agrees that such facsimiles or other electronic transmissions shall be deemed to constitute the orig inal of such documents, and that any
objections that they do not constitute the "best evidence" of the documents, or that they do not comply with the "Statute of Frauds," as
well as any other similar objections to the validity or admiss ibility of the document, are hereby expressly waived by the Parties .
12.16 Telephonic Recording of Transactions. Buyer and Seller agree that they may enter into a Transacti on Confirmation , or any
price conversion (if applicable) thereunder, through their oral or written agreement. Buyer and Seller hereby consent to the creation of
an audio tape or other electromagnetic recording (each, a "Recording") of all telephone conversations between the Parties. Buyer and
Seller agree that Recordings shall be retained i n confidence, secured from improper access, and may be introduced in any proceed ing
r elating to such transaction hereunder as evidence of the terms of such transaction . Buyer and Seller agree and hereby waive any
further notice of Recordings . Without limiting the foregoing , Buyer and Seller further waive any objections to the validity or
enforceab ility of such Recordings for the purposes recited above , based upon : (a) whether certain agreements are to be in writing or
signed by the Party bound thereby, or (b) the admiss ibility of the terms of a transaction into evidence in any dispute between the Parties
under the applicab le rules of evidence . Seller will provide Buyer written terms for each such transaction confirmed via a Recording .
Buyer agrees to promptly review such written terms and notify Seller of disagreement therewith . If there is a conflict between the terms
as quoted and agreed upon in the Recording and such written terms , the Recording shall control.
12.17 Tennination of Base Contract Either Party may terminate th is Base Contract at any time by providing at least 30 days prior
written notice to the other Party ; provided , however, in no event shall any such termination take effect until the termination or expiration
of all Agreements hereunder.
Alliance Airport Authority Inc 65145395 NEGBC TC PKG rec 2.10 .2015
CONFIDENTIAL Version 06 .27 .2014
The Parties have signed this Base Contract for Supply of Electricity document, acknowledging their agreement to its provisions as of
February 10, 2015 .
ALLIANCE AIRPORT AUTHORITY, INC.
By :
Name:
Title :
"Buyer''
1-;,$$1STAN r ITY ATTORNEY
ND r-\~~ ~1£)
Alliance Airport Authority Inc 65145395 NEGBC TC PKG rec 2 .10.2015
CONFIDENTIAL
TXU ENERGY RETAIL COMPANY LLC
By :
Name: Gabriel R. Castro
Title : Vice Pres ident
"Seller"
Version 06.27 .2014
ADDENDUM TO THE
BASE CONTRACT FOR SUPPLY OF ELECTRIC ITY
I. The following new definitions are hereby ad ded to Section I of th e Base Contract, to be in serted in alphabeti cal orde r.
"Code" means Texas Local Government Code , Trtle 8, Chapter 271 , Su bcha pter I, Sections 271 .151 throug h 271 .16 0.
~""'1TXU
~..:,;/energy
"Covered Co ntract" means a "Co ntract subj ect to thi s subchapter; as such phrase is defi ned in Section 271.151(2) of th e Code.
II. Th e las t sentence of Section 4 .1 of the Base Co ntract sh all be deleted in its enti rety and replaced with the followi ng:
Buyer shall noti fy Seller in writing on or befo re th e due date if Buyer is wi thh old ing payment of any disputed porti on of the C harges
and shall include a list of specific reasons for the dispute; provided , however, that the undisputed porti ons of the Charges shall
remain due and payab le on the due date. If Buyer gives such notice of d ispute, the Parties shall pursue diligent, good faith efforts
to resolve the dispute during the th irty (30) calendar days following Seller's receipt of the notice. Any amount found payable
(including interest) shall be pa id with in fifteen ca lendar days of the dispute being resolved. If the Parties are unable to resolve the
dispute during the thirty (30) day period and it is subsequently determined that Buyer should pay Seller all or part of the disputed
amount, Seller may require that Buyer pay interest on such past due amou nt from the date such payment was originally due until
the same is paid . All past due amounts shall accrue interest at a rate equal to the lesser of (i) one percent (1 %) above the "Prime
Rate" as pub lished on the first bus iness day of July of Buyer's preceding fiscal yea r that does not fall on a Saturday or Sundai
in the Wall Street Journal under "Money Rates• or an appropriate substitute should su~ rate cease to be published , or (ii) the
highest rate al lowed by law, from the date th e payment was orig inally due until paid (i ncluding accrued interest).
Ill. Section 4.3 of the Base Contract shall be deleted in its enti rety and replaced with •th e foltowing : • • .
... .,. ., . . ,. ,
4.3 If, upon expiration or termination of an Agreement for any reason, Buyer fa ils either to switch to another retail electric provider or
execute a replacement agreement with Seller, then, until Buyer either executes a replacement agreement with Seller or switches to
another provider for the appli cable Premise(s), Seller may charge Buyer, as the Contract Price for Power utilized at such Prem ises
after expiration or termination of the Agreement, a price per kWh equivalent to Seller's then current "standard list p ri ce offer."
Provided further, however, in the event that after such terminati on or expiration Buyer should fail to make payment due to Seller or
provide security after notice and opportunity to pay/provide, Seller, in its sole discretion and at whatever time chosen by Seller, may
(as a result of PUCT rules that forbid a REP from switch ing a customer to the POLR) direct the TDSP to disconnect electric service to
the Premise(s) under such Agreement, except as may be prohibited by law; however, Se lle r shall not have the ri ght to direct the
TDSP to disconnect electric service for the non-payment of amounts that are subj ect to a bona fide dispute.
IV. Th e following Section 4 .5 shall be added to the Base Contract:
4.5 If Buyer notifies Seller in writing of a j ustifiable concern regarding the accuracy of an invoice , Se ller wi ll make the records in its
possession that are reasonably necessary to verify the accuracy of the bill available to Buyer during normal business hours. It is
understood and agreed that such information and records provided under th is Section 4.5 constitute Seller's proprietary and
confidential information, the release of wh ich could hinder or harm Sell er's competitive position ; therefore , such information and
records are not intended to be public information under the Texas Public Informati on Act and shall not be re leased by Buyer, unless
otherwise determined by the Texas Attorney General or a court of competent jurisdiction. Nothing in th is section will require Buyer to
pursue a legal challenge in any court to seek to overturn a ruling by the Texas Attorney General's Office or a court requiring
disclosure pursuant to the provisions of the Public Information Statutes , but Buyer shall (i) cooperate and assist Seller if Seller
pursues such a challenge and (ii ) make no disclosure until , if, and when Sell er's challenge is finally denied . All information and
records provided hereunder constitute Seller's property and such information, records, and cop ies thereof, as well as all notes taken
therefrom, shall be returned to Seller promp~y after the resolution of the concerns regarding the accuracy of the invoice.
V . Th e following Section 4.6 s hall be added to the Base Contract:
4.6 Buyer represents and warrants that as a political subdivision or agency of the State of Texas, it is exempt from state sales taxes
pursuant to Section 151.309 of the Texas Tax Code . Seller may request a certificate of exemption from Buyer, and Buyer shall
provide such certificate within a reasonable period of ti me. Thereafter, Seller, to t he extent that it is not required to coll ect or pay such
taxes, will not flow through the costs of such taxes hereu nder to Buyer.
V I. Section 6.2(a) of the Base Contract shall be deleted in its entirety and replaced with the following :
6.2(a) If Seller terminates an Agreement due to a Materi al Breach by Buyer, Buye r shall , with in thirty (30) calendar days following
such term ination, pay Seller, in addition to all reasonable direct costs and expenses incurred by Seller as a resu lt of such Material
Breach and termination, and all amounts Buyer owes Seller with respect to time periods pri or to the termination , the positive amount,
if any, calculated as follows as of the date of termination : the sum of (A) the product of (I) the remain ing quantities of electricity for the
remainder of the Agreement Term as reflected on Exhibit A-1 (the "Remaining Quantities") multipli ed by (II) the Contract Price
under such Agreement minus the then-current market va lue of a kWh as reasonably determined by Seller plus (B) the value of any
term extension option rights, if any, that Seller may have under the Agreement In addition , if the termination was pursuant to
Section 6.1 (a) or (g) above due to Buyer's Material Breach in failing to make payment due to Seller or provide security after the
requisite notice and opportunity to cure , Selle r may (as a resu lt of PUCT rules that forb id a REP from switching a customer to the
POLR) direct the TDSP to disconnect electric service to the Prem ise(s) covered thereunder, except as may be prohibited by law;
however, Seller shall not have the right to di rect the TDSP to disconnect electri c service (i) for the non-payment of amounts that are
Alliance Airport Authority Inc 65145395 NEGBC TC PKG re c 2.10.2015
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subject to a bona fide dispute , (ii) prior to termination of the applicable Agreement, or (iii) for a termination of the applicable
Agreement due to a Material Breach other than non-payment or failure to provide security.
Vll. The following Sections 6.3 and 6.4 shall be added to Article VI of the Base Contract
6.3 The Parties agree that if (i) Buyer is unable to allot or appropriate sufficient funds for Buyer's fiscal year(s) that follow the
initial fiscal year of an Agreement Term to continue the purchase of the total quantity of electricity covered by the Agreement,
and (ii) otherwise has no legally available funds for the purchase of electricity, Buyer may terminate the Agreement at the end
of Buyer's then current fiscal year by (a) giving Seller ninety (90) calendar days written notice to Selle r and (b) enclosing
therewith a sworn statement that the foregoing conditions exist. In this sole event, Buyer shall not be obligated to make
contract payments under the Agreement beyond the end of the then current fiscal year. Notwithstanding the foregoing, Buyer
covenants and represents to Seller that upon the execution of each Agreement (a) Buyer has budgeted and has available
sufficient funds to comply with its obligations under the Agreement for the current fiscal year, (b) there are no ci rcumstances
presently affecting Buyer that could reasonably be expected to adversely affect its ability to budget funds for the payment of all
sums due under the Agreement, (c) Buyer believes that funds can be obtained in amounts sufficient to make all contract
payments during the full Agreement Term and intends to make all required contract payments for the full Agreement Term, (d)
Buyer covenants that it will do all things within its power to obtain , maintain and properly request and pursue funds from which
contract payments may be made, specifically, including in its annual budget requests amounts sufficient to make contract
payments for the full Agreement Term, (e) Buyer will not give priority in the appropriation of funds for the acquisition or use of
additional energy services, (f) if any funds are appropriated for electricity costs , such funds shall be applied first to the cost of
electricity to be provided pursuant to the Agreement and that any such funds shall not be used to pay for electric power from
any other electric power provider for the accounts covered in the Agreement, and (g) Buyer agrees to notify Seller in writing of
such non-appropriation at the earliest practicable time subsequent to the failure to appropriate . As of the termination date of
an Agreement under this Section 6.3, Seller shall have no further duty t o supply electricity to Buyer under such Agreement and
Buyer shall move service for Buyer's Premises to another REP or the POLR on the date of termination for non-appropriation.
6.4 If Buye r uses its inherent powers as a governmental entity under the provisions of Articles Vil, X, or in any other manner to
circumvent the intent or terms and provisions of the Agreement, Buyer shall be respons ible for contract damages caused by
such action .
VII I. Section 8.2 of the Base Contract shall be deleted in its entirety and replaced with the following :
ANY LIABIUTY UNDER AN AGREEMENT WILL BE UMITED TO DIRECT ACTUAL DAMAGES AS THE SOLE AND EXCLUSIVE
REMEDY, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. NEITHER PARTY WILL BE
LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, INCLUDING
LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES , WHETHER IN TORT OR CONTRACT OR OTHERWISE IN
CONNECTION WITH AN AGREEMENT. THE LIMITATIONS IMPOSED ON REMEDIES AND DAMAGE MEASUREMENT WILL
BE WTHOUT REGARD TO CAUSE , INCLUDING NEGLIGENCE OF ANY PARTY, WHETHER SOLE, JOINT, CONCURRENT,
ACTIVE OR PASSIVE.
JX. The following shall be added to the end of Section 10.2 of the Base Contract:
Notwithstanding the generality of the foregoing provisions of this Section 10.2, both Parties agree that if charges are found to
be lower than authorized under an Agreement or if the Seller has failed to bill the Buyer for service, then the Buyer's bill may
be corrected and that Seller may backbill the Buyer for the amount that was underbilled , provided, however, that the
backbilling shall not collect charges that extend more than six months from the date the error was discovered unless the
underbilling is a result of either (i) malfeasance on the part of the Buyer (e.g ., theft of service , meter tampering) or (ii) an error
or omission on the part of the TDSP(e .g., meter inaccuracies, meter re-reads).
X . Article X of the Base Contract is hereby amended to add a new Section 10.4 to read in its entirety as follows :
10.4 The Parties hereby acknowledge and agree that this Agreement is a Covered Contract and shall be subject to all provisions of
the Code.
XI. Article XI of the Base Contract shall be retitled "Responsibility" and Sections 11 .1 and 11 .2 thereof shall be deleted in the ir entirety and
replaced with the following:
11.1 As between the Parties, Buyer assumes full responsibility for electric energy on Buyer's side (downstream) of the TDSP Point
of Delivery, and agrees to the full extent allowed by law, to and shall hold harmless Seller, its parent company and all of its affiliates
(except any which may be the TDSP serving Buyer's Premise(s)), and all of their respective officers , directors, shareholders,
associates, employees , servants, and agents (collectively referred to as "Seller Group"), from and against all claims , losses,
expenses, damages, demands , judgments, causes of action, and suits of any kind (collectively referred to "Claims"), including Claims
for persona l injury, death, or damages to property , occurring on Buyer's side of the TDSP Po int of Delivery, arising out of or related to
the electric power and energy and/or Buyer's performance under an Agreemen t.
11 .2 As between the Parties, Seller assumes full responsibility for electric energy on Seller's side (upstream) of the Seller Point of
Delivery, and agrees to and shall hold harmless Buyer, its officials , associates , employees, servants , and agents (collectively
referred to as "Buyer Group"), from and aga inst all Claims, including Cla ims for personal injury, death, or damages to property
occurring on Seller's side of the Seller Point of Delivery , arising out of or related to the electric power and energy and/or Seller's
performance under an Agreement
Alliance Airport Authority Inc 85145395 NEGBC TC PKG rec 2.10.2015
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Xll. The following shall be added to the end of Section 12.4 of the Base Contract:
Except to the extent necessary to enforce Seller's rights under an Agreement, nothing i n the Agreement shall constitute or be
interpreted to constitute a waiver of Buyer's statutory and common-law immunity defenses , including sovereign and/or
governmental immunity and qualified and/or official immunity; it being intended that such immunities shall in all respects be
preserved except as othetwise provided herein .
XIII. Sections 12.6 and 12. 7 of the Base Contract shall be deleted in their entirety and replaced with the following :
12.6 Survival. No termination or cancellation of an Agreement will relieve either Party of any obligations under th e Agreement
that by their nature survive such termination or cancellation , including, but not limited to, all warranties , ob li gations to hold
harmless, obligations to pay for electricity taken, and obligations for any breaches of contract .
12 .7 Confidentiality. Seller acknowledges that Buyer is a governmental body that is subject to public information laws,
including Chapter 552 of the Texas Government Code, which requires Buyer to release any information that is defined as or
deemed to be public (the "Public Information Statutes"). Subject to any Public Information Statute or related order, rule or
regulation requiring disclosure, Buyer agrees to keep all terms and provisions of each Agreement, and any information and
records in Buyer's possession that are provided under each Agreement, confidential and not to disclose the terms of the same
to any third parties without the prior written consent of Seller. It is understood and agreed that the foregoing constitutes
proprietary and confidential information of Seller, the release of which could hinder or harm Seller's competitive position, and
therefore is not intended to constitute public information under the Texas Public Information Act and shall not be released by
Buyer, unless determined otherwise by the Texas Attorney General or a court of competent jurisdiction. Noth in g in this section
will require Buyer to pursue a legal challenge in any court to seek to overturn a ruling by the Texas Attorney General's Office or a
court requiring disclosure pursuant to the provisions of the Public Information Statutes, but Buyer shall (i) cooperate and assist Seller
if Seller pursues such a challenge and (ii) make no disclosure until , if, and when Seller's challenge has been finally denied .
XIV. Toe following shall be added to the end of Section 12.9 of the Base Contract
Buyer hereby further represents and warrants to Seller that (a) Buyer is authorized by staMe or the constitution to enter into each
Agreement and, in the event Buyer is a local governmental entity, (b) Buyer's governing body meets more frequently than once per
month and will continue to do so throughout each Agreement Term .
Xv. Toe text of Section 12 .14 of the Base Contract shall be deleted in its entirety and the following notation added in lieu thereat
[Intentionally Deleted]
XVl . A new Section 12.18 of the Base Contract is hereby added to read in its entirety as follows:
12.18 Attorneys' Fees . In any litigation to enforce the terms of an Agreement, the prevailing party is entitled to recover its
reasonable and necessary attorneys' fees from the non-prevailing party .
[End of Addendum]
Alliance Airport Authority Inc 65145395 NEG BC TC PKG rec 2.10.2015
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TXU Energy Retail Company LLC
REP Certification No. 10004
6555 Sierra Drive 3-S-24
Irving, TX 75039
DATE:
SELLER :
BUYER:
QUOTE NUMBER :
February 10, 2015
TXU Energy Retail Company LLC
Alliance Airport Authority, Inc.
1000 THROCKMORTON ST
FORT WORTH, TX 76102-6312
65145395
ES I ID REGISTRATION ACKNOWLEDGEMENT
ffl\TXU
:._}energy
By signing this acknowledgement, Buyer represents and warrants that all information referenced and shown in Exhibits A
and A-1 to the subject Transaction Confirmation for the Supply of Electricity ("Transaction Confirmation") is correct, to the
best of its knowledge, for all of the ESI IDs and Premises listed in such Exhibits A and A-1 and contracted under such
Transaction Confirmation . Buyer further represents and warrants that each and every ESI ID and Premise listed in such
Exhibit A primarily serves Buyer's commercial non-residential purposes, and that all information listed therein (including
the Monthly Contract Usage Quantities) is accurate and correct. Buyer agrees to bear all responsibility, liability , and
associated costs , with regard to (i) the foregoing representation and warranty , as well as (ii) any missing ESI IDs not
listed in Exhibit A, and/or ESI IDs erroneously listed on Exhibit A.
AGREED AND ACCEPTED BY :
Signat ure:~~
Printed Name: M l'.(].i,:t1do CaJ f..t
T itle : A,,sf: k<:1-H<..,.(/.
Date: 2,U O /2 S"
Alll ance Airport Authority Inc 65145395 NEGBC TC PKG re c 2.10 .2015
CONFIDENTIAL Version 06 .27 .2014
Transaction Confirmation for Supply of Electricity
0TnfrJ!
Quote 65145395 Product: Fixed Price
Number. Load Zone
Business 0020126081 MAC
Partner#:
Buyer. Alliance Airport Authority , Inc. Seller. TXU Energy Retail Company LLC
1000 THROCKMORTON ST REP Certification No. 10004
FORT WORTH , TX 76102-6312 6555 Sierra Drive 3-S-24
Irving, Texas 75039
Attn: Retail Contract Administration
Phone : 817-392-6145 I Fax: I 817-212-2514 Phone: (866) 576-6745 I Fax : I <972) 556-6108
I. Agreement Primary Tenn: The Primary Term for each Premise will begin on the first meter read, and end on the first regularly
Tenn scheduled meter read, for each Premise occurring on or after the dates listed below in compliance with the Base
Contract for Suoolv of Electricitv.
Primary Tenn Start Date: February 11, 2015 I Primary Tenn End Date: January 31 , 2019
II. Charges Charge Type Amount (Monthly Charaes will be the total of the items listed in this Article II.)
(i) All kWh Charge $0 .04725 per kWh :\
(The per kWh
·contract Price ") The All kWh Charge includes charges for the commodity (including the price impact, if any,
resulting from the implementation of the Operating Reserve Demand Curve ("ORDC ")), Energy
(shaped), Ancillary Services, Qualified Scheduling Entity Charges , Renewable Energy Cred it
Charges, Congestion (including but not limited to Reliability Unit Commitment ("RUC")), Line
Losses (TDSP), Mar1<et Clearing Price for Capacity, ERCOT Administration Fee/ISO Fees, and
Unaccounted for Energy ("UFE") as defined and specified in the ERCOT Protocols and the
applicable TDSP's Tariff in effect as of the date of this Agreement. It will also include the
settlement charges to the aoolicable ERCOT Load Zone.
ii. Excess Usage Excess Usage Tolerance : Unlimited*
*See Section IV . Special Provisions titled "Material Adverse Chanoe•
iii. Under Usage Under Usage Tolerance: Unlimited*
*See Section IV. Soecial Provisions titled "Material Adverse Change"
iv. Standina Charae The sum of th e Monthlv Standina Charges for all ESI IDs as listed in Exhibit A.
v. Other Charges Varies by ESI ID throughout the Tenn. All charges , other than those listed above or below,
imposed upon Seller or Buyer by the TDSP or another Party that are allowed or required by the
PUCT, ERCOT, or any other governmental or regulatory authority, on or with respect to the
acouisition sale delivery and ourchase of the Power.
vi. Taxes Varies by ESI ID throughout the Tenn. All taxes imposed by any governmental or regulatory
authority on the acquisition, sale , delivery , and purchase of the Power. Includes Seller's Texas
Gross Receipts Tax and Public Utility Commission Assessment on the acquisition, sales,
deliverv. or ourchase of the Power.
vii. $0 .0000000 per kWh. Buyer represents that it has not entered into any contract, arrangement or
Aggregator/Third understanding with any person that may result in the obligation of Buyer or Seller to pay any
Party Fee finders fees, broker or agent commissions or other like payments in connect ion with the
negotiations leading to this Agreement or the consummation of the transactions contemplated
hereby. If any such fees , commiss ions or payments are alleged to exist or be owing, Buyer shall
be responsible for all such fees, commissions and payments, and shall indemnify and hold
harmless Seller from and against all costs , expenses, damages, liabilities and other charges
incurred by Seller in connection with disoutino and resolv ing any such claims.
Ill. BILLING 1-SITE 1-INVOICE via HARD COPY I Net 30 days from the date of the invoice via CHECK
JV.SPECIAL INITIAL SECURITY: An initial cash deposit in the amount of $0 .00 is required within sixteen (16) days from the
PROVISIONS issuance date of the invoice for the deposit. Once received, the cash deposit may be replaced by a surety bond, or an
irrevocable letter of cred it either of which shall be (i) in a form reasonably acceptable to Seller, (ii) from an institution
reasonably acceptable to Seller, and (iii) in the same dollar amount as the cash deposit. The security shall remain in
effect until at least two (2) months after the Primary Term End Date .
Alliance Airport Authority Inc 65145395 NEGBC TC PKG rec 2 .10.2015
CONFIDENTIAL Version 06 .27 .2014
MATERIAL ADVERSE CHANGE:
In the event Buyer's total Power usage under the Agreement for any calendar month during the Agreement Term
should ever (i) exceed the Power quantities for such month (as listed in Exhibit A-1) by more than 25%, or (ii) fall short
of the Power quantities listed for such month by more than 25%, then upon the second such occurrence during the
Agreement Term (whether over and/or under usage) Seller shall have the right to reset the Excess and Under Usage
Tolerances under the Agreement (for such second occurrence month and all Mure months of the Agreement Term)
from "unlimited" to a monthly bandwidth of twenty five percent (25%) above and below the contracted Power quantities
listed in Exhibit A-1 for the appl icable month . In such event, any Excess or Under Usage will be billed as follows :
Excess Usage:
If Buyer's total consumption of Power for all Premises in a calendar month exceeds the total amount listed in
Exhibit A-1 for such month by more than the Excess Usage Tolerance percentage specified below, then Seller
may charge Buyer 100% of the then current Market Price (as defined below) as the "Contract Price" for such
excess quantities. The "Market Price", for purposes of this Excess Usage and the Under Usage paragraph
below, shall be the weighted average of the Real Time Settlement Point Price(s) for the applicable load
zone(s) in the applicable month; plus all charges associated with Ancillary Services , Qualified Scheduling
Entity Charges , Renewable Energy Credit Charge, Congestion (including but not limited to Reliability Unit
Commitment ("RUC")), Line Losses (transmission and distribution provider), Market Clearing Price for
Capacity , ERGOT Administration Fee/ISO Fees, and UFE.
Excess Usage Tolerance : 25%
Under Usage: Except to the extent caused by a Force Majeure event or Seller's breach, if Buyer's total
consumption of Power for all Premises in a calendar month is less than the total amount listed in Exhibit A-1
for such month by more than the Under Usage Tolerance percentage specified below, then, in addition to
paying for the Power actually consumed, Buyer agrees to pay Seller for the cost of liquidating the Shortfall
Quantity . The "Shortfall Quantity" shall mean [((100% minus the Under Usage Tolerance specified below)
multiplied by (the aggregated monthly contract usage quantities listed on Exhibit A-1 for the applicable
month)) minus (the aggregated quantities consumed by Buyer during the month)]. The cost of liquidating the
Shortfall Quantity shall be the positive amount, if any, calculated as follows : [(the Shortfall Quantity) multiplied
by (the Contract Price minus 100% of the then current Market Price for the Shortfall Quantity)].
Under Usage Tolerance: 25%
ADDITION AND REMOVAL OF PREMISES
Sections 5.1 and 5 .2 of the Base Contract shall be replaced with the following provisions with respect to this
Agreement for the term of this Agreement:
5.1 (a) Buyer shall have the limited right to add ES! IDs to, or delete some but not all ESI IDs from, this Agreement.
The addition and deletion of ESI IDs will be done without modifying the aggregated quantities of electricity set forth on
Exhibit A-1, until the cumulative total quantities of electricity attributable to all such additional and/or deleted ESI ID(s)
equal ten percent (10%) of the aggregated quantities originally listed on Exhibit A-1 for the Primary Term of the
Agreement (the "Add/Delete Tolerance Range"). Buyer may make a request to add ESI IDs once per business day as
a single combined addition request, and Buyer may make a request to de lete ESI IDs once per business day as a
single combined deletion request. In either such event, in order to initiate either the addition or the deletion of ES! IDs
from this Agreement, Buyer shall submit its request to Seller with as much prior notice as is practicable, using Seller's
then current form for such request, Seller shall reasonably determine the quantities of electricity that are applicable to
each added or deleted ESI ID, and Seller will examine all requests in order to determine whether the request(s) is
within the Add/Delete Tolerance Range. There shall not be any "netting• of additions and deletions; each request to
either add or delete shall be a separate request Exhibit A shall be deemed modified to reflect the add ition and/or
deletion of such ESI IDs . Buyer's sending of a request to Seller to add or delete ESI IDs shall be considered Buyer's
authorization to charge the cost of the request, as provided below, once Buyer has reached the Add/Delete Tolerance
Range as the result of ESI ID additions and/or deletions.
(b) Once Buyer has reached the Add/Delete Tolerance Range as the result of ESI ID additions and/or deletions , with
regard to (i) any future ES! ID addition(s) and (ii) if applicable, any portion of the addition request that caused Buyer to
exceed the Add/Delete Tolerance Range, Seller shall have the right to charge Buyer up to the total cost of such
request, i.e., the positive amount, if any, calculated as follows : [(the kWh amount of the quantities of electricity
attributable to the ESI ID addition request, the "ESI ID Additional Quantities") multiplied by (the then current market
based pricing per kWh as reasonably determined by Seller, minus the contract price per kWh according to the
Agreement)] (the 'ESI ID Addition Payment'). Upon being invoiced by Seller, Buyer shall pay such amount to Seller
within twenty (20) calendar days . Exhibits A and A-1 shall be deemed modified to reflect the addition of such ESI IDs
and associated electricity quantities. Any ES! IDs and associated ESI ID Additional Quantities added hereunder to this
Agreement shall be subject thereafter to the contract pricing, monthly contract usage tolerances and other provisions of
this Agreement.
(c) Once Buyer has reached the Add/Delete Tolerance Ranae as the result of ESI ID additions and/or deletions then
Alliance Airport Authority Inc 65145395 NEGBC TC PKG rec 2.10.2015
CONFIDENTIAL Version 06 .27.2014
V .BASE
CONTRACT
with regard to (i) any future ES I ID deletion(s) and (ii) if applicable , any portion of the de letion request that caused
Buyer to exceed the Add/Delete Tolerance Range :
(1) In the event a new owner or Jessee of a Premise (i) is w illing to sign a new Agreement with Seller for such Premise
using Seller's then standard form of contract with the same pricing as this Agreement, (ii) is deemed creditworthy i n
Seller's reasonable opinion, and (iii) the new owner or lessee and Selle r can legally enter into such Agreement in
accordance with the rules and regulations of the PUCT, then, prov ided that such new Agreement is fully executed
between the new owner or lessee and Seller, the Premise (and the associated ES! IDs and electricity quantities) will be
deleted from this Agreement and Buyer will not owe any compensation to Seller with respect to such deleti on (a
"Premise Buyout'); otherwise,
(2) Seller shall have the ri ght to charge Buye r up to the total cost of such request, i.e ., t he positive amount, if any,
calculated as follows: !(the kWh amount of the quantities of electricity attributable to t he ESI ID de letion request, the
"ES! ID Liquidated Quantities") multiplied by (the Contract Price per kWh that Buyer would have paid for the ESI ID
Liquidated Quantities through the end of the Agreement Term according to this Agreement, minus ninety-five percent
(100%) of the then current market value as reasonably determined by Seller)] (the "ESI ID Liquidation Payment"). Upon
being invoiced by Seller, Buyer shall pay the amount of the ESI ID Liquidation Payment to Seller with in twenty (20)
calendar days.
In either event, Exhibits A and A-1 shall be deemed modifi ed to reflect the rJ~l~tio½ •o; sucti ~$~ ID~ MJ,ass~ciated
electricity quantities. . -~ . , ..... • • ... " . ; '
ENERGY EFF JCIENCY REBATE PROGRAM. As a result of executing this Transaction Confirmation for Supply of
Electricity, Buyer is eligible to participate in Seller's Energy-Efftclency-Rebrrte Program and ·receive \JP to t~e following
amount(s) in rebates (i.e ., Buyer must provide appropriate dl!ici.irnenlation • to Seller, in the form ofinvbices and/or
contracts for all completed qualifying energy efficiency work , on or before the applicable date recited below or the
rebates will expire for such time period):
• $75,000 for qualifying energy efficiency work performed and completed during 2015 and submitted by
(December 31 , 2015).
• $75,000 for qualifying energy efficiency work performed and completed during 2016 and submitted by
(December 31 , 2016).
• $75,000 for qualifying energy efficiency work performed and completed during 2017 and submitted by
(December 31 , 2017).
,. $75,000 for qualifyi ng energy efficiency work performed and completed during 2018 and subm itted by
(December 31 , 2018).
BLEND AND EXTEND. Both Parties will work in good faith during the Agreement Term to reasonably accommodate
and assist Buyer with the management of its electricity needs at the Premises . For example , if Buyer desires to blend
and extend the Agreement Term (i.e ., blending the existing price, on a prospective basis, with a new market based
price for a time period extending the term of the existing Agreement), both Parties will work in good fa ith to mutually
agree upon the terms and conditions that are economically v iable to both Parties . However, notwithstand ing the
previous language, nothing contained herein shall be construed as to deny or diminish the economic benefit of the
Agreement to either Party, and neither Party shall be under any obligation whatsoever to agree to a modification that
would have such result.
EXECUTION
Buyer and Seller each agree that this Transaction Confirmati on, may be executed by written or electronic signature and
may be delivered by facsimile or other electronic transfer in multiple counterparts, each of which will be as binding on
the Buyer or Seller as an original document. Buyer or Seller each understand and agree that such facs imiles or other
electronic transmissions shall be deemed to constitute the original of such documents, and that any objections that
they do not constitute the "best ev idence" of the documents, or that they do not comply with the "Statute of Frauds," as
well as any other similar objections to the validity or admiss ibility of the document, are hereby expressly waived by the
Buver and Seller.
Buyer acknowledges that it has previously been furnished with a Base Contract for Supply of Electricity ("Base
Contract"), which is an integral part of the Agreement to which this Transaction Confirmation applies. In the event that
Buyer has not executed the Base Contract as of the time of Buyer's execution of this Transaction Confirmation, then
Buyer's execution of this Transaction Confirmation shall be deemed to be Buyer's ratification , adoption and acceptance
of the Base Contract as last provided by Seller. Exhibits A & A-1 and other attachments , as applicable , are
incoroorated herein bv reference .
Alllance Airport Authority Inc 65145395 NEGBC TC PKG rec 2.10.2015
CONFIDENTIAL Version 06 .27.20 14
; Buyer Legal Name :
Alliance Airport Authority , Inc.
an industrial develooment corooration
By (Name of General Partner or Agent if app li cable):
Its General Partne r
Buyer Signatu ~
-li:.1
Officer's Printed Name :
"Pe ,r;v, ,_ 6r lr:J5 ~
Title:
/k;-,(hi;.1 'f ,..,-I ,---P....c-.s 1..;'rY?r
Date : z/;o/;s
A --_ .. . -~t1VJ\~
·-•. .
1\.:0 t ~ (_ ((€QI D
Alliance Airport Authority Inc 65145395 NEG BC TC PKG rec 2.10 .2015
CONFIDENTIAL
. ----
Seller Legal Name :
TXU Energy Retail Company LLC,
a Texas limited liability company
Selll 2rSi nature : ,,.., ~
--7___,,,/ ~
O~r's Printed Name :
Gabriel R. Castro
Title :
Vice Pres ident
Date : 2 /1-1,f r
Version 06 .27 .2014
Legal Name: Alliance Airport Authority, Inc.
Estimated Load Factor: 68.46
Total Contract kWh: 194,528,923
Primary Term: 48
TDSP Delivery ESI ID
Voltai:ie
TXU Secondary 10443720006009771
Total Number of Points of Delivery= 1
Contracted kW= 8,104
Monthly Standing Charges = 0
ESI ID Address
2000 EAGLE PKWY FORT
WORTH TX 76177-2300
Congestion Meter Cycle
Zone
NORTH 11
Quote: 65145395
Price Type: Fixed
Meler Cycle Meler Cycle End
Start
February 11, February 11,
2015 2019
Profile
BUSIDRRQ
f',.,1TXU
~energy
IDR or Standing ESI Peak
Non-lDR Chame KW
IDR 0 8104
In the event this Exhibit "A" contains temporary placeholder ESI ID numbers (typically denoted by "TPH" at the beginning of the ESI ID number) for contracted
future Buyer ESI IDs, then (i) Buyer shall give Seller at least thirty (30) days prior written notice of the date that each such ESI ID will be energized as a Buyer ESI
ID (i.e., when Buyer will begin utilizing the applicable facility located at Buyer's Premise), (ii) Seller will no1 ~e obligated to serve any such ESI ID under the
Agreement until, at the earliest, after the expiration of at least thirty (30) days after Buyer's written notice hd been given to Seller, and (iii), in any event, Buyer's
giving, or failure to give, timely notice to Seller shall not affect Buyer's obligation, under the Agreement, to llie responsible for all volumes contracted for under the
Agreement as reflected on Exhibit "A-1". ..... ""'l 0
Alliance Airport Authority Inc 65145395 NEG BC TC PKG rec 2.10.2015 CONFIDENTIAL
....
"
Version 06.27.2014
Legal Name: Alliance Airport Authority, Inc.
Estimated Load Factor: 68.46
Total Contract kWh: 194,528,923
Period Usaae 1
02/01/2015
03/01/2015
04/01/2015
05/01/2015
06/01/2015
07/01/2015
08/01/2015
09/01/2015
10/01/2015
11/01/2015
12/01/2015
01/01/2016
02/01/2016
03/01/2016
04/01/2016
05/01/2016
06/01/2016
07/01/2016
08/01/2016
09/01/2016
10/01/2016
11/01/2016
12/01/2016
01/01/2017
02/01/2017
03/01/2017
04/01/2017
05/01/2017
Usaae 2
Alliance Airport Authority Inc 65145395 NEGBC TC PKG rec 2.10.2015
Usaae 3
CONFIDENTIAL
Quote: 65145395 •
Price Type: Fixed
Usaae 4
~~~TXU
~energy
..
Total Usaae
2 ,132,326
3 ,744,110
3,649 ,155
4 ,227 ,536
4,519 ,705
4,783,491
4,814 ,731
4 ,363,237
4 ,141 ,961
3 ,952 ,26 1
3,640 ,187
3,510 ,126
3 ,256 ,074
3,744 ,110
3,649 ,155
4 ,227 ,536
4 ,519 ,705
4 ,783,491
4,814,731
4,363 ,237
4,141 ,961
3 ,952,261
3,640,187
3 ,510 ,126
3 ,256 ,074
3,744,110
3 ,649,155
4 ,227,536
Version 06 .27.2014
06/01/2017 4,519,705
07/01/2017 4,783.491
08/01/2017 4 ,814,731
09/01/2017 4,363,237
10/01/2017 4,141,961
11/01/2017 3,952 ,261
12/01/2017 3 ,640 ,187
01/01/2018 3,510,126
02/01/2018 3,256 ,074
03/01/2018 3,744,110
04/01/2018 3 ,649,155
05/01/2018 4,227,536
06/01/2018 4,519 ,705
07/01/2018 4 ,7 83,491
08/01/2018 4,814,731
09/01/2018 4 ,363,237
10/01/2018 4 ,141 ,961
11/01/2018 3,952,261
12/01/2018 3,640,187
01/01/2019 3,510 ,126
02/01/2019 1,242,375
Total Number of Periods= 49
Alliance Airport Authority Inc 65145395 NEGBC TC PKG rec 2.10.2015 CONFIDENTIAL Version 06 .27.2014
--
TXU Energy Retai l Company LLC
T exas Sal es Tax Exemotion Certificate
Account Name (on Seller's re cords)
Alliance Airport Authority Inc. an indu strial development co rporation
Service Address I City, State, Zi p
2000 Eagle Pkwy Fort Worth , TX 76177
PROVIDE ACCOUNT NO. AND ESI ID OR METER NO.
Account No. (Fo r multiple accounts, staple add itional list in g signed by the customer to this form.)
100038704072
ESI ID or Meter No. (For multiple accounts, staple additional listi ng signed by the customer to this form .)
1044372 000600977 1
PLEASE CO M PLETE ONLY ONE SECTION A ORB OR C (AS APPLICABLE)
SECTION A
(Utility Study Not Required for 100% Nontaxable Usage )
Customer declares electri city is purchased~ for the following nontaxable purpose :
CHECK ONLY ONE:
0 (1) Residential/ Apartment/ Nurs ing Home /Campground
□ (2) Government entity . . ~ • l,.,,. h,vt-Cdcle-e ,$"0/, 676"(0.) ~ (3) Exem pt organization ;J:OC <JC.,,,:,,,-e~ h -1 +e,,~ 5V I TcwS « I :5 f::
(4) Exp lori ng, producing or transporting material extracted from earth
0 (5) Comme rcia l Agriculture and Timber Operations -Registration No.
□ (6) Electrical Processes -electrop l ating, electrolysis, cathodic protection
0 (7) Rai lroad -operati on of locomotives and trains
□ (8) Manufacturing, processing or fabricating personal property for resale other than food for i mmediate consumpti on
0 (9) Resale -Sales Tax Permit No. State Issuing Permit
□ (10) Texas Direct Pa y Permit -No.
0 (11) Other nontaxable use (specify exact use)
• SECTION B
(Utility Study Not Required -Only for Use By Apartment Complexes, Campgrounds, or Cotton Gins)
□ (1) Customer decla res electricity is used less than 100%, but more than 50%, for residential purpose in an apartment complex
B (2) Customer decl ares electricity is used less than 100%, but more than 50%, for residential purpose in a campground
(3) Customer declares electri ci ty is used less than 100%, but more than 50%, for processing in a cotton gin.
SECTION C
(Predominant Use Exemption)
Customer declares electricity is used less than 100%, but more than 50%, for a nontaxable purpose and affirms that a valid and complete study has been
performed whi ch shows that % of electricity is used for the Following nontaxable purpose:
CHECK ONLY ONE:
□ Manufacturing, processing o r fabricating property for resa l e
□ Other nontaxab le use (specify exact use)
To claim this exemptio n, the seal of a registered engineer must be affixed to this document
OR (Affix seal below)
The following is to be comp leted by an engineer:
Type or Print -Engineer's Name , having an
engineering degree from an accredited engineering college, certifies the accuracy
of the above-mentioned study.
Eng in eer's Signature
Date Signed
Customer Certification
I understand that I will be liable for payment of sales or use taxes which may become due for failure t o comply with the provisions of the Tax Code;
Limited Sales , Exci se , and Use Tax Act; Municipal Sales and Use Tax Act; Sal es and Use Taxes for Special Purpose Taxing Authorit i es; Co unty Sales and
Use Tax Act; County Health Services Sales and Use Tax; T he Texas Health and Safety Code ; Special Provisio ns Relati ng to Hospital Distri cts, Emergency
Services Distri cts, and Emergency Services Districts in counties with a population of 125,000 or less.
I understand that it is a criminal offense to give this certi ficate to the seller for taxable items that I know, at the time of purchase , will be used in a
manner other t han that expressed in this certificate and, depending on the amount of tax evaded, the offense may range from a Class C misdemeanor to
a felony of the second degree . If resa le is claimed, I certify that the purchaser is engaged in the business of selling electricity and that the purchases
covered by this certi ficate are exem pt from Texas state and local sales and use tax.
Authorized Sig nature *~ C.1 ~ Date Signed 4[3/15
Print Name Ferf"-O.t1lo Coc;fg Telephone No. ;?1] -·1q cl -Gt J-;;.
Official Title Ass.12.~v,.>T r r-ecsl,'f'eV--{ aru! ks+. C.1::t, l~r}
*It signed by Agent or other repres entative, Power of Attorney must be completed. (See page 3)
**If claiminQ refund of past sales taxes, Claim fo r Refund must be completed . (See oage 4 )
TXU Energy Retail Company LLC REP Certificate No , 10004
RE-F-TSTEC-1111 Page 2 Form 236-2 11/11