HomeMy WebLinkAboutContract 56884 Agreement No: EA-28059
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• sym mLetry CSC No. 56884
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GAS SALES AGREEMENT
This Gas Sales Agreement (this "Agreement") is entered into as of December 1, 2021 (the "Effective Date") between
SymmetryEnergy Solutions, LLC, a Delaware limited liability company ("Seller"), and the "Buyer" identified below for the sale and
purchase of natural gas. Seller or Buyer may hereinafter be referred to individually as a "Party"and together as the"Parties."
Legal name of Buyer: City of Fort Worth,A Texas Home Rule Municipal Corporation
1. Notices. All notices, requests, claims, demands, Transaction Confirmations (as defined below) and other
communications under this Agreement ("Notices") must be in writing and, unless the method of delivery is expressly stated
otherwise in this Agreement, may be sent via U.S. mail, private courier service, fax machine, or email to the applicable address
listed below; however, a Party may at any time designate a different address in a Notice to the other party. A Notice will be
considered effective on the date sent if sent via fax machine or email on a Business Day before 5:00 p.m. in the receiving Party's
time zone (otherwise, on the next Business Day), and on the 2nd Business Day after the date sent if sent via U.S. mail or courier.
"Business Day" means any day except Saturday, Sunday or Federal Reserve Bank holidays.
Buyer's Address: Buyer's Address for Invoices:
Contact: Mark Brown Contact: Mark Brown
Address: 200 Texas Street Address: 200 Texas Street
City/State/Zip: Fort Worth,TX 76102-6314 City/State/Zip: Fort Worth,TX 76102-6314
Phone: 8173925197 Phone: 8173925197
Fax: Fax:
Email: mark.brown@fortworthtexas.gov Email: mark.brown@fortworthtexas.gov
Seller's Address: Other Information for Buyer:
Contact: Contract Administration Tax ID#: US Federal: 75-6000528
Address: 9811 Katy Fwy,Ste 1400 Other:
Jurisdiction of
City/State/Zip: Houston,TX 77024-1296 Organization: Tarrant County,Texas USA
Phone: (800)495-9880 Company _Corporation LLC
Fax: (713)393-0263 Type: Ltd Partnership Partnership
Email: Confirms@SymmetryEnergy.com LLP Other:
X Governmental Authority
2. Agreement Scope. This Agreement governs all transactions entered into on or after the Effective Date for the
purchase by Buyer of natural gas from Seller(each, a"Transaction").
3. Transaction Confirmations. Before a Transaction becomes binding, Seller shall send a written confirmation of its
terms (a"Transaction Confirmation")to Buyer via email as soon as practical after the parties reach agreement on such terms. A
Transaction shall become binding (i)automatically at 5:00 p.m., Central Standard Time, on the 2nd Business Day following the day
the Transaction Confirmation is sent to Buyer (the "Confirm Deadline") unless a Party cancels the Transaction or disputes or
revokes the Transaction Confirmation in a Notice to the other Party delivered via email prior to the Confirm Deadline, or(ii)on the
effective date of Buyer's execution and delivery of Seller's Transaction Confirmation without modification to Seller,whichever occurs
first. A Transaction Confirmation represents the Parties' final agreement regarding the specific terms of the Transaction and
supersedes any prior oral or written agreements, understandings or promises relating to the Transaction. In the event of a conflict
between the terms of this Agreement and the terms of a Transaction Confirmation, the latter shall control for that Transaction. Any
amendments to a Transaction Confirmation after the Confirm Deadline must be in writing and signed by both parties.
4. Transaction Terms. Each Transaction Confirmation will be labeled with one of the following Transaction
designations, based on the Volume Commitment and Contract Price for the Transaction: "Fixed Price," "Volumetric Index Price,"
"Index Price,"or"Market Rate" ("Transaction Type"), and will specify, at a minimum, Buyer's facility or account that is the subject
of the Transaction(the"Facility"),the natural gas commodity price(the"Contract Price")and any other fees and charges applicable
to the Transaction ("Additional Charges"), the primary term of the Transaction (the "Initial Period") and whether any automatic
term renewals apply(each, a"Renewal Period"and,together with the Initial Period, the"Delivery Period"),the point where Seller
will deliver the natural gas to be furnished under the Transaction (the "Delivery Point"),the natural gas volumes Seller is obligated
OFFICIAL RECORD
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FT.WORTH,TX
Agreement No: EA-28059
to deliver and Buyer is obligated to receive under the Transaction at the Delivery Point(the "Volume Commitment"), and whether
such deliveries and receipts will be Firm or Interruptible as defined in Section 8 (the "Performance Obligation"). If a Transaction
Confirmation does not specify that a Renewal Period applies, but Seller continues to deliver and Buyer continues to receive natural
gas after the expiration of the Initial Period specified therein, then the Transaction will be deemed to automatically continue for
month-to-month Renewal Periods under the terms of the Transaction Confirmation until terminated by either Party on 30 days'
Notice, except where the Contract Price during the Initial Period is a fixed price, in which case the Contract Price for natural gas
delivered during each such Renewal Period will be the then-current monthly spot price for natural gas in the geographic area where
the applicable Delivery Point is located, as determined by Seller in a commercially reasonable manner.
If a Transaction Confirmation specifies (i)a Fixed Price as the Contract Price for Buyer's entire Volume Commitment and
(ii) the Volume Commitment is defined as or equal to 100%of Buyer's natural gas requirements at the specified Delivery Point (a
"Fixed Price Full Requirements Transaction" or "FPFR Transaction"), then the provisions of this paragraph will apply.
Specifically, in connection with an FPFR Transaction, Buyer acknowledges and understands that Seller is relying and has relied
upon Buyer's historical natural gas consumption at the applicable Delivery Point for purposes of determining the pricing of the
products and services to serve Buyer's natural gas requirements for the Delivery Period of the FPFR Transaction. Accordingly, in
the event of any material variance (hereby defined as plus/minus 20%or greater)between Buyer's actual natural gas consumption
and historical natural gas consumption at the applicable Delivery Point results in variance charges, penalties or damages, being
incurred by Seller,then such will be passed through to Buyer by Seller. Seller will provide documentation on the applicability of any
cost associated with any material variance plus or minus 20%or greater.
If a Transaction Confirmation specifies that a Renewal Period applies and the Parties agree to a Fixed Price with respect
to all or part of the Volume Commitment for any month(s)occurring after the Initial Period or Renewal Period, as applicable, then in
effect,then the term of the Transaction Confirmation will be deemed to have been extended through and including the last calendar
month of the last Renewal Period in which all or part of the Volume Commitment for any month occurring during such Renewal
Period is subject to a Fixed Price.
The Parties acknowledge that an operational flow order declared by a Transporter may occur with little to no advance
notification. Accordingly, if either Party receives notice or becomes aware of an operational flow order requiring action to be taken
in connection with the operational flow order or the delivery or consumption of natural gas under an affected Transaction,such Party
will use commercially reasonably efforts to notify the other Party by telephone or electronic mail of such event in a timely manner.
Each Party will take all actions required to comply with and within the time prescribed by the operational flow order,and any penalties
assessed by a Transporter will be borne by the Party who failed to comply. Both Parties agree that an operational flow order may
require one or both Parties to buy or sell quantities of natural gas in the then current market conditions, which may be appreciably
higher or lower than the pricing set forth in an affected Transaction, and any such quantities will be priced according to the then
current market conditions and delivered or received on a reasonable best-efforts basis, subject to available transportation. A
"Transporter" is a natural gas gathering or pipeline company, or local distribution company, transporting natural gas for Seller or
Buyer upstream or downstream, respectively, of the Delivery Point specified in a Transaction Confirmation.
5. Invoicing and Payment.Sellerwill invoice Buyer on a monthly basis for all Transactions in effect during the invoice
period based on the Contract Price, Volume Commitment and Additional Charges, if any, set forth in the respective Transaction
Confirmations. Buyer shall remit payments under the Contract in accordance with the Texas Prompt Payment Act, Chapter 2251,
Texas Government Code. Buyer will pay Seller the full invoice amount in accordance with the payment instructions set forth on the
invoice within 30 days of the invoice date (the "Payment Due Date"); provided, however, that if the Payment Due Date falls on a
non-Business Day,the Payment Due Date shall be the following Business Day. If Buyer, in good faith,disputes the invoice amount,
Buyer will pay the undisputed amount of the invoice and provide documentation to support the disputed amount. If Buyer fails to
pay any undisputed invoiced amounts or provide documentation to support any disputed invoiced amounts by the PaymentDue
Date, Seller may charge and collect from Buyer a late fee equal to the lesser of 1% of the outstanding balance per month
(compounded monthly)or the maximum interest rate allowed by law. Buyer will pay Seller for all costs and expenses incurred by
Seller to collect any past due invoiced amounts. Buyer will be responsible for and pay all taxes and fees assessed by governmental
entities on the sale of natural gas hereunder (including any gross receipts taxes and franchisefees). If Buyer is entitled to a tax
exemption, it is Buyer's responsibility to provide Seller with any necessary documentation of such.All invoices and associated
payments are final unless either Party disputes the accuracy of such invoice(s) or payment(s) in writing,with adequate
documentation,within 2 years after the invoice date (or later if applicable Transporter tariff provisions allow).
6. Measurement. The natural gas quantities used for invoicing purposes will be the natural gas quantities as
measured during the invoice period by the applicable Transporter operating the natural gas metering equipment at the Delivery
Point or Facility,as reported by the Transporter to Seller(the"Measured Volumes"). Either Party may contest those measurements,
but the Transporter's ultimate determination will be final and binding. In the event the Transporter is unable to provide Seller with
the Measured Volumes before Seller's invoice date, the natural gas quantities used for that invoice period will be estimated by
Seller, and such estimated quantities will then be adjusted to the Measured Volumes on Seller's next invoice afterthe Measured
Volumes are reported by the Transporter. For any invoice period during which natural gas is delivered from Seller to Buyer under
separate Transactions to the same Delivery Point or Facility, Seller will apply the Measured Volumes for invoicing purposes by the
type of Contract Price, as applicable, in the following order: (i)Fixed Price, (ii)Volumetric Index Price, (iii) Index Price, and then (iv)
Market Rate Transaction, and all in ascending date order.
7. Credit Terms. Buyer must meet Seller's creditworthiness standards at all times. Buyer will provide to Seller, as
Seller may request from time to time,sufficient information to enable Seller to determine Buyer's creditworthiness, including, but not
limited to,financial statements and trade references. If Buyer does not meet Seller's creditworthiness standards, Seller may require
that Buyer provide sufficient credit support for Buyer's payment obligations under this Agreement, in the form and amount,and for
a term, reasonably acceptable to Seller. Buyer authorizes Seller to obtain Buyer's usage data and credit history from any
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Transporter serving Buyer's Facilities and appoints Seller as its agent solely for the purpose of obtaining such usage data and credit
history, to the extent such agency authority is necessary. Each Party agrees that this clause supersedes and replaces in their
entirety any requirements of law relating to adequate assurance of future performance, including without limitation Article 2 of the
Uniform Commercial Code.
8. Performance Breach. As used in this Agreement, "Firm" means that either party may interrupt its performance
without liability only to the extent that such performance is excused by a Force Majeure Event(as defined below),and"Interruptible"
means that either party may interrupt its performance at any time for any reason without liability. Except as provided in Section 9
of this Agreement, and unless a different remedy for breach of a Firm obligation is specified in a Transaction Confirmation,the sole
and exclusive remedy of the Parties in the event of a breach of a Firm obligation to deliver or receive natural gas not excused by a
Force Majeure Event is, in addition to the payment or reimbursement of any Transporter imbalance charges or penalties caused by
such breach, as follows: (a) in the event of a breach by Seller on any day, Seller shall pay Buyer an amount(that amount, "Seller's
Breach Payment")equal to the difference between the Volume Commitment for that day and the actual quantity delivered by Seller
to the Delivery Point during that day, multiplied by the positive difference, if any,obtained by subtracting the Contract Price from the
spot price for natural gas for that day in the geographic area where the applicable Delivery Point is located, as determined by Seller
in a commercially reasonable manner(the"Daily Spot Price"); and (b)in the event of a breach by Buyer on any day, Buyer will pay
Seller an amount(that amount, "Buyer's Breach Payment")equal to the difference between the Volume Commitment for that day
and the actual quantity received by Buyer at the Delivery Point during that day, multiplied by the positive difference, if any,obtained
by subtracting the Daily Spot Price from the Contract Price. Seller will apply a credit in the amount of Seller's Breach Payment, if
any, and a charge in the amount of Buyer's Breach Payment, if any, in the invoice(s)covering the day(s)of the breach.
9. Early Termination. (a) Either party may (i) terminate a Transaction if the other party fails to perform a Firm
obligation to make or take delivery of natural gas pursuant to the terms thereof for a period of more than 30 consecutive days
regardless of whether such failure is otherwise excused by a Force Majeure Event, or if the Facility that is the subject of the
Transaction is served by a Transporter and becomes ineligible for transportation service by such Transporter regardless of whether
such ineligibility is otherwise excused by a Force Majeure Event, and (ii) terminate this Agreement and all Transactions then in
effect if the other Party or its guarantor files or has filed against it a petition for relief under the United States Bankruptcy Code or
similar state law for the protection of creditors, or otherwise becomes bankrupt or insolvent, has a receiver or similar official
appointed with respect to it or substantially all of its assets, makes an assignment or any general arrangement for the benefit of
creditors,or is unable to pay its debts as they fall due. For the sake of clarity,termination due to a Force Majeure Event will not be
considered a default pursuant to this Agreement, and, if termination is based exclusively upon a Force Majeure Event, the Parties
agree that the "liquidated damages" as applicable to such a termination as described in Section 13 of this Agreement will be the
sole obligation owed as between the parties arising from such termination.
(b) In addition, Seller may terminate this Agreement and all Transactions then in effect if Buyer or its guarantor
(i) fails to pay any invoice amount not subject to a good faith dispute on or before 15 days following the invoice's Payment Due
Date; (ii) fails to provide credit support in accordance with Seller's request under Section 7 hereof on or before the end of the 2nd
Business Day following such request;or(iii)fails to perform any obligation owed to Sellerwith respect to any credit support provided
under Section 7 hereof.
(c) The Party having the right to terminate under this Section (the "Non-Defaulting Party") will give Notice of
termination to the other Party (the "Defaulting Party"), and such termination will be effective upon the effective date of the Notice,
unless a later termination date is designated in the Notice, in which case the termination will be effective upon such later termination
date (the ""Early Termination Date"), which later date must be no later than 20 days after the effective date of the termination
Notice; provided, however, that to the extent the right to terminate under this Section has accrued and is continuing, the Non-
Defaulting Party may also immediately suspend all delivery and payment obligations owed under the Terminated Transactions (as
defined below).
(d) Notwithstanding anything in this Agreement,a Transaction will not be interpreted or applied in such a manner
so as to circumvent or otherwise render inapplicable anything in this Section 9 and any obligations resulting therefrom.
10. Early Termination Damages. (a) If one or more Transactions are terminated pursuant to Section 9 of this
Agreement (the "Terminated Transactions"), the Non-Defaulting Party will, as soon as reasonably practicable after the Early
Termination Date, liquidate and accelerate the outstanding Volume Commitments under each Terminated Transaction (the sum
thereof, the "Outstanding Volumes") as of the Early Termination Date at the market price for similar transactions at the affected
Delivery Point(s) (the "Market Price"), as determined by the Non-Defaulting Party in a commercially reasonable manner. If the
product of the Outstanding Volumes times the Market Price (that product, the "Market Value") is greater than the product of the
Outstanding Volumes times the Contract Price (that product, the"Contract Value"), then the positive difference between them, as
discounted by the Non-Defaulting Party to present value in a commercially reasonable manner as of the Early Termination Date,
(the"Liquidated Damages")will be owed to Buyer, and if the Contract Value is greater than the Market Value, then the Liquidated
Damages will be owed to Seller.
(b) The Non-Defaulting Party will, as soon as reasonably practicable after determining the Liquidated Damages
amount,(i)net or aggregate,as appropriate,the Liquidated Damages amount against or with(A)all outstanding payment obligations
owed between the Parties under the Terminated Transaction(s)as of the Early Termination Date (including any Buyer's or Seller's
Breach Payment)for which payment has not been paid, (B)any and all costs and penalties imposed by a Transporter or other third
party on the Non-Defaulting Party as a result of the early termination, (C) any brokerage fees, commissions and other similar
transaction costs and expenses reasonably incurred by the Non-Defaulting Party either in terminating any arrangements undertaken
to hedge its obligations under the Terminated Transactions or in entering into new arrangements to replace the Terminated
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Transactions, (D)any and all costs and expenses incurred by the Non-Defaulting Party to collect any amounts due hereunder, and
(E) costs, if any, incurred by the Non-Defaulting Party in connection with enforcing its rights with respect to the Terminated
Transactions,so that all such amounts are netted or aggregatedto a single liquidated amount payable by one Party to the other(the
"Net Settlement Amount") and (ii) notify the Defaulting Party thereof. The party owing the Net Settlement Amount shall pay it in
full within 15 days after the date of that Notice. Interest on anyunpaid portion of the Net Settlement Amount will accrue from the date
due until the date of payment at the rate set forth in Section5 of this Agreement.
11. Risk of Loss, Indemnification and Disclaimer of Implied Warranties. For each Transaction,title to and risk of loss
for the natural gas will pass to Buyer at the Delivery Point.Seller shall indemnify Buyer and save it harmless from all losses,liabilities,
damages and demands including reasonable attorneys'fees and costs of court("Losses")arising from or out of claims of personal
injury, including any wrongful death action,or property damage from said natural gas("Claims")that attach before titleto said natural
gas passes to Buyer, and Buyer will indemnify Seller and save it harmless from all Losses arising from or out of Claims that attach
after title to said natural gas passes to Buyer. If Buyer is a governmental entity, these indemnity obligations willonly apply to the
extent permitted by applicable law. Seller warrants that it will have the right to convey and will transfer good and merchantable title
to all gas sold hereunder and delivered by it to Buyer,free and clear of all liens,encumbrances,and claims.EXCEPT AS PROVIDED
IN THE IMMEDIATELY PRIOR SENTENCE, SELLER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, WHETHER
STATUTORY OR COMMON LAW, INCLUDING THE IMPLIED WARRANTIES OFMERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. Notwithstanding anything to the contrary in this Contract, Buyer does not waive or surrender any of its
governmental powers or immunities nor will the Buyer establish a sinking fund for any claim or debt arising out of this contract.
12. Assignment. Neither party may assign this Agreement without the other party's prior written consent, which
consent shall not be unreasonably withheld,conditioned or delayed,except that either party may assign this Agreement after Notice
to the other party, provided that: (a) in the case of an assignment by Seller, such assignment is (i)to an Affiliate or a successor
resulting from a merger or the acquisition of substantially all of Seller's assets or(ii)an assignment,transfer,encumbrance or pledge
of this Agreement, or the accounts, revenues or proceeds hereof, in connection with any financing or other financial arrangements;
and (b) in the case of an assignment by Buyer, (i)such assignment is to an Affiliate or a successor resulting from a merger or the
acquisition of substantially all of Buyer's assets and (ii) such Affiliate or successor meets Seller's creditworthiness standards as
determined by Seller prior to any such assignment taking effect. In no event may either Party sever a Transaction,or any portion of
its rights or obligations to receive or deliver natural gas under a Transaction, from this Agreement and transfer such Transactionor
such rights or obligations separately from the remainder of the Transaction or this Agreement without the express written consentof
the other Party. Notwithstanding any assignment hereunder,the assigning party shall be liable for all obligations incurred or arising
under this Agreement prior to the effective date of an assignment otherwise permitted under this Section 12 (the "effective date"of
an assignment shall be the date on which the assignee expressly agrees to accept and assume this Agreement and all
corresponding obligations from the assigning party). As of and after the effective date of such permitted assignment, the assignee
shall become liable for all obligations arising hereunder to the same degree and to the same extent as if the assignee was the
original party to this Agreement, the assigning party shall be released from any further obligations hereunder, and the assignee
shall become known as "the Buyer"or"the Seller", as appropriate, under this Agreement from said effective date. For the sake of
clarity,the assigning party will remain liable for all obligations incurred hereunder prior to the effective date of any assignment. Any
attempted assignment in violation of this Section will be null and void and without effect. This Agreement will be binding on the
parties' respective permitted successors and assigns. "Affiliate"means an entity that controls, is controlled by,or is under common
control with,the assigning party.
13. Force Majeure. To the extent either Party is prevented by a Force Majeure Event from carrying out, in whole or
part, its obligations under a Transaction and such party(the"Claiming Party")gives Notice and details of the Force Majeure Event
to the other Party as soon as practicable, then the Claiming Party will be excused from the performance of its obligations with
respect to such Transaction (other than the obligation to make payments that are otherwise due and payable under this Agreement).
The Claiming Party will use commercially reasonable efforts to remedy its inability to perform as a result of the Force Majeure Event.
"Force Majeure Event" means an event or circumstance which prevents one Party from performing its obligations under a
Transaction, which event or circumstance is not within the reasonable control of, or the result of the negligence of, the Claiming
Party,and which, by the exercise of reasonable diligence,the Claiming Party is unable to overcome. Force Majeure Events include,
but are not limited to,the following: (i)physical events such as acts of God, landslides, lightning,earthquakes,fires,storms or storm
warnings, such as hurricanes,which result in evacuation of the affected area, floods, washouts, explosions, breakage or accident
or necessity of repairs to machinery or equipment or lines of pipe; (ii)weather related events affecting an entire geographic region,
such as low temperatures which cause freezing or failure of wells or lines of pipe; (iii)interruption, termination and/or curtailment of
Firm transportation and/or firm storage by Transporters (including but not limited to operational flow orders, pipeline capacity
allocations,unscheduled maintenance, pipeline interconnect issues or other similar problems); (iv) acts of others such as strikes,
lockouts or other industrial disturbances, riots,sabotage, insurrections or wars,or acts of terror; and (v)governmental actions such
as necessityfor compliance with any court order, law,statute,ordinance, or regulation (including but not limited to a tariff regulation
in a Transporter's tariff). Unless otherwise specified in a Transaction, the term "Firm" in the preceding sentence means Seller's
utilizationof firm service agreement(s)with Transporter(s) under which the Delivery Point(s) is not a specified primary point for the
delivery ofnatural gas. Force Majeure shall not include economic hardship,to include,without limitation,Seller's ability to sell Gas from
Seller's Gas Supply at a higher or more advantageous price than the Contract Price or Buyer's ability to purchase Gas at a lower or more
advantageous price than the Contract Price. "Seller's Gas Supply" means Gas: (i)acquired by Seller from a third-party supplier or
suppliers, whether individually or an aggregated basis, on a regional, pipeline or geographic basis (as determined solely by Seller
in the conduct of its regular business); (ii)from which Seller allocates quantities to be used by Seller to fulfill the monthly Volume
Commitment(or any daily proration thereof)specified in a Transaction entered into by the Parties pursuant to this Agreement; and
(iii) unless otherwise expressly stated in any such Transaction that also specifically memorializes any agreed upon monetary
consideration or fees paid therefor by Buyer to Seller, excludes any of Seller's Gas in any type of storage, imbalance account or
any incremental or balance-of-month Gas purchased by Seller in the daily spot market.
Notwithstanding the provisions of the preceding paragraph, in the event: (i)a Transaction has a Performance Obligation that is Firm;
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(ii)as a result of a Force Majeure Event Seller is unable to sell and deliver, or Buyer is unable to purchase and receive,the Volume
Commitment; (iii)the Delivery Period is at least one month; and (iv)the Contract Price is a Fixed Price,then
a. If the FOM Price(as hereinafter defined)is above the Fixed Price,Sellerwill pay Buyer an amount equal to the product
of(1)the portion of the Volume Commitment that could not be delivered or received and (2)the difference between
the FOM Price and the Fixed Price;or
b. If the FOM Price is below the Fixed Price, Buyer will pay Seller an amount equal to the product of(1)the portion of
the Volume Commitment that could not be delivered or received and the difference between the Fixed Price and the
FOM Price.
The"FOM Price"means the last day settle price of the New York Mercantile Exchange natural gas futures contract for the month in
which the Force Majeure Event occurs. The process described in the last two sentences of Section 10(b) of this Agreement will
govern the payment of any obligations incurred under this Section 13.
14. Limitation of Liability. FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE
OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES WILL BE THE SOLE AND EXCLUSIVE
REMEDY,AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. IF NO REMEDY OR MEASURE
OF DAMAGES IS EXPRESSLY PROVIDED, A PARTY'S LIABILITY WILL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY,
AND NEITHER PARTY WILL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT
DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES UNDER ANY INDEMNITY PROVISION OR
OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE
MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE
NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR
PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES
ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE OBTAINING AN
ADEQUATE REMEDY IS INCONVENIENT AND THE DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE
APPROXIMATION OF THE HARM OR LOSS.
15. Forward Contract. The Parties agree that each Transaction constitutes a"forward contract,"that Seller and Buyer
are each "forward contract merchants" and that this Agreement constitutes a "master netting agreement," in each case within the
meaning of the United States Bankruptcy Code.
16. Dodd-Frank Transaction Classification. Each Party represents as of each time it enters into a Transaction that
the Transaction qualifies for either (a) the forward contract exclusion as set forth under Section 1a(47)(B)(ii) of the Commodity
Exchange Act or(b)the trade option exemption as set forth under 17 C.F.R. Section 32.3(a). Each Party will promptly give Notice
to the other Party if the foregoing representation becomes incorrect or misleading. If a Transaction is subject to any governmental
reporting requirements, including but not limited to any reporting requirements of the Commodity Futures Trading Commission
enacted under Title 7 of the Dodd-Frank Wall Street Reform and Consumer Protection Act("Dodd-Frank"),each Party will provide
the other Party any information reasonably requested by such other Party to enable it to comply with those requirements.
17. Buyer Representations. Buyer represents and warrants to Seller, as of the Effective Date and the date of each
Transaction Confirmation, that it (a) is acting for its own account; (b) has made its own independent decision to enter into this
Agreement and each Transaction and as to whether this Agreement and each such Transaction is appropriate or proper for it based
upon its own judgment; (c) is not relying upon the advice or recommendations of Seller in so doing; (d)is capable of assessing the
merits of and understands and accepts, the terms, conditions and risks of this Agreement and each Transaction; (e) understands
that information and explanations of the terms and conditions of each such Transaction will not be considered investment or trading
advice or a recommendation to enter into that Transaction; (f) understands that no communication (written or oral) received from
Seller will be deemed to be an assurance or guarantee as to the expected results of that Transaction; (g)this Agreement and each
Transaction Confirmation has been executed by its duly authorized representative; and (h)understands that Seller is not acting as
a fiduciary for or an advisor to it in respect to that Transaction.
18. Market Disruption. If a Market Disruption Event (as hereinafter defined) has occurred then either Party may give
notice thereof to the other Party specifying in reasonable detail the event that has occurred constituting a Market Disruption Event.
Upon the giving of such notice, the Parties will negotiate in good faith to agree on a replacement price for the Floating Price (or on
a method for determining a replacement price for the Floating Price)for the Affected Period.An "Affected Period"is any part of the
Delivery Period under a Transaction affected by the Market Disruption Event. If the Parties have not agreed on or before the tenth
Business Day following the date of the notice of the occurrence of the Market Disruption Event, then the replacement price forthe
Floating Price will be determined within the next two following Business Days with each Party obtaining, in good faith and fromnon-
affiliated market participants in the relevant market, two quotes for prices of natural gas for the Affected Period of a similar quality
and quantity in the geographical location closest in proximity to the Delivery Point and averaging the four quotes, rounded to the
third decimal place. If either Party fails to provide two quotes, then the average of the other Party's two quotes will determinethe
replacement price for the Floating Price."Floating Price"means the price or a factor of the price, based on a specified index,agreed
to in a transaction as the Contract Price. "Market Disruption Event" means, relating to an index specified in a transaction,any of
the following events: (a)the failure of the index to announce or publish information necessary for determining the Floating Price; (b)
the failure of trading to commence or the permanent discontinuation or material suspension of trading on the exchange or market
acting as the index; (c)the temporary or permanent discontinuance or unavailability of the index; (d)the temporary or permanent
closing of any exchange acting as the index;or(e)a market abnormality, anomaly or other occurrence, other than a Force Majeure
Event, which causes the Floating Price to no longer be reflective of the market price of natural gas for the relevant market in the
geographic area in which the Delivery Point is located.
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19 Miscellaneous. This Agreement and its terms are considered confidential by each Party hereto and may not be
disclosed to third parties except to the extent disclosure is necessary for its implementation or otherwise required by law, and except
to such Party's or its Affiliate's employees, auditors, lawyers or other agents or advisors or prospective lenders, investors or
purchasers of all or substantially all of such Party's assets or any of its rights under this Agreement, provided such persons are
required to keep the information that is disclosed in confidence. Seller understands that Buyer is a governmental entity
under the laws of the State of Texas and all documents held or maintained by City are subject to disclosure under
the Texas Public Information Act. In the event that there is a request for information that the Seller has marked
Confidential or Proprietary, the City will promptly notify Seller. It will be the responsibility of the Seller to submit
reasons object to disclosure. A determination on whether such reasons are sufficient will not be decided by the
Buyer, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction No
waiver or forbearance of any provision of this Agreement will be held to be a waiver or forbearance or require a waiver or forbearance
in the future. Any portion of this Agreement which may bedeemed to be unenforceable or illegal will not affect the enforceability or
legality of its remaining terms and conditions.This Agreement will not be construed as creating any third-party beneficiaries hereof.
The interpretation and performance of this Agreement will be governed by the laws of the State of Texas.Any action to enforce this
Agreement or the rights of a Party hereunder may be brought in a court of law having jurisdiction located in Tarrant County, Texas.
Any and all amounts payable by either Party under this Agreement will be in U.S.dollars.
20. Right to Audit. Seller agrees that Buyer will, until the expiration of three (3)years after final payment under this
Agreement, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at
reasonable times any directly pertinent books, documents, papers and records, including, but not limited to, all electronic records,
of Vendor involving transactions relating to this Agreement at no additional cost to Buyer. Seller agrees that Buyer will have access
during normal working hours to all necessary Seller facilities and will be provided adequate and appropriate workspace in order to
conduct audits in compliance with the provisions of this section. Buyer will give Seller reasonable advance notice of intended audits.
21. No Boycott of Israel. If Seller has fewer than 10 employees or this Agreement is for less than $100,000, this
section does not apply. Seller acknowledges that in accordance with Chapter 2271 of the Texas Government Code, the City is
prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from
the company that it: (1)does not boycott Israel; and (2)will not boycott Israel during the term of the contract. The terms"boycott
Israel"and "company" has the meanings ascribed to those terms in Section 2271 of the Texas Government Code. By signing this
Agreement, Seller certifies that Seller's signature provides written verification to the City that Seller: (1)does not boycott Israel; and
(2)will not boycott Israel during the term of the Agreement.
22. Prohibition on Boycotting Energy Companies. Seller acknowledges that, in accordance with Chapter 2274 of the
Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, §2, a City is prohibited from entering into a contract for
goods or services that has a value of$100,000 or more that is to be paid wholly or partly from public funds of a City with a company
with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1)does not boycott
energy companies; and (2)will not boycott energy companies during the term of the contract. The terms"boycott energy company"
and"company"have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021,
87th Leg., R.S., S.B. 13, §2. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing
this Agreement, Seller certifies that Seller's signature provides written verification to a City that Seller: (1)does not boycott energy
companies; and (2)will not boycott energy companies during the term of this Agreement.
23. Prohibition on Discrimination Against Firearm and Ammunition Industries. Seller acknowledges that except as
otherwise provided by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, a City
is prohibited from entering into a contract for goods or services that has a value of$100,000 or more that is to be paid wholly or
partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written
verification from the company that it: (1)does not have a practice, policy, guidance, or directive that discriminates against a firearm
entity or firearm trade association; and (2)will not discriminate during the term of the contract against a firearm entity or firearm
trade association. The terms "discriminate," "firearm entity" and "firearm trade association" have the meaning ascribed to those
terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1. To the extent that
Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Seller certifies that Seller's
signature provides written verification to a City that the Seller: (1) does not have a practice, policy, guidance, or directive that
discriminates against a firearm entity or firearm trade association; and (2)will not discriminate against a firearm entity or firearm
trade association during the term of this Agreement.
24. Entire Agreement, Amendment and Construction. This Agreement constitutes the entire agreement between
Buyer and Seller regarding the subject matter herein, superseding any and all prior written or oral agreements and promises. This
Agreement, all Transaction Confirmations and any designated credit support agreement or arrangement between the Parties
(including any amendments to any of the foregoing)will be construed as a single integrated agreement. This Agreement cannot be
amended except by written instrument signed by both parties.
25. Agreement Termination. (a) This Agreement may be terminated by either Party at any time after the Effective
Dateupon 30 days' Notice to the other Party if no Transactions are in effect. This Agreement will automatically terminate upon the
laterof 2 years after the Effective Date if no Transactions are in effect at that time,or the last termination date of all such Transactions.
Sections 5, 10, 11, 14 and 19 will survive any termination of this Agreement and continue in effect until the rights and obligations
therein have been satisfied. It is further agreed that this Agreement, and/or any Transaction(s)then in effect, may be terminated by
either party if:(i)a Transporter files a tariff change or a court or governmental agency with jurisdiction(including,without limitation,the
Federal Energy Regulatory Commission) causes a Transporter to initiate a tariff change in a manner that causes a party to incur
additional,uncontemplated material capital or operating costs(including, but not limited to,Transporter fixed and/or variable charges
or fuel, or in connection with Transporter system operational limitations or restrictions) relating to its performance hereunder; and
(ii)the parties are unable, after good faith negotiations, to renegotiate the terms hereof and/or those of an affected Transaction.
Ver 5.0 Page 6 of 7
Agreement No: EA-28059
(b)_In the event no funds or insufficient funds are appropriated by Buyer in any fiscal period for any payments due
hereunder, Buyer will Seller of such occurrence and this Agreement will terminate on the last day of the fiscal period for which
appropriations were received without penalty or expense to Buyer of any kind whatsoever,except as to the portions of the payments
herein agreed upon for which funds have been appropriated or with respect to any Net Settlement Amount calculated under Section
10(b) hereof on account of any such early termination.
hereof. IN WITNESS WHEREOF the parties have executed this Agreement with effect from the date specified on the first page of
Buyer: City of Fort Worth,A Texas Home Rule Municipal
Seller: Symmetry Energy Solutions, LLC Corporation
By: 0"r- �arriSO� By: �!'l�l'w
Print Name: Brian Harrison Print Name: Dana Burghdoff
Title:Vice President, Sales and Origination Title:Assistant City Manager
Approval Recommended
-.44By:st�«,o �U.o��o�„, —,
Name: Steve Cooke
Title: Property Management Director
Contract Compliance Manager
By: O 1�1�
Name: Juanita Rigsby
Title: Energy Manager
Approved as to Form and Legality
By: C �
Name: Christopher Austria
Title:Assistant City Attorney
M&C: 21-0907 1295: N/A
Attest:
p�o 0oo0000°0�
° oQ�d Tdnnetfe S.Gaa�ldll
o .- -- --------1. °�•IdG By.
Pvo °=0
P o°
o a Name: Jannette Goodall
° o*�
EXASaap Title: City Secretary
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Ver 5.0 Page 7 of 7
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myCES Portal
Register for the myCES Online Account Management Portal to obtain your information 24 hours a day:
• View and Print Invoice and Account Payment History
• View and Export Daily Usage and Monthly Billing volumes
• Sign up to receive your monthly Invoices as an attachment to an email
• Pay your Invoice securely online by clicking on the Invoice and Payment Options link
• View Energy Resources and Insights
To register for myCES, go to http://www.myCES.com and click on the Register link.
Paperless Invoicing
We're going Paperless! Free and easy step to Go Paperless! Please contact your billing analyst TODAY to sign up!
Payment Options
Method Cost Instructions
Automatic Free Funds are automatically withdrawn monthly from your bank account in the amount of
Bank Maximum amount per your current invoice on your invoice due date.To enroll, please complete the online
Draft(ABD) transaction is authorization form at www.myces.com and hoover over Invoice and Payment Options,
$9,999,999.99 selecting Sign Up for Auto Draft.
Online Free Electronic Funds Transfer(EFT)
Maximum amount per Funds are withdrawn from your bank account in the amount that you specify.There is
transaction is no cost for this service!Payments are accepted by calling 866-578-7617 or online at
$9,999,999.99 myCES.com.You will need your bank account and bank routing numbers, and your
seven-digit invoice number to process payment.
$57.95 per Credit/Debit Card
transaction* Credit and debit card payments are processed through HP Convenience PayTM,which
Maximum amount per charges a transaction fee. Discover, MasterCard and Visa cards are accepted.
transaction is Payments are accepted by calling 866-578-7617 or online at myces.com.You will need
$3,000.00 your seven-digit invoice number and card information to process payment. Please note
that you do not need to be registered for CES Online to make this type of payment.
Phone Cost varies by Call HP Convenience Pay at 866-578-7617.You will need your seven-digit Symmetry
payment method Energy Solutions invoice number.
Mail Free Send the payment stub and signed check to the appropriate mailing address listed at
the bottom of your current invoice.
Wire Free The wire transfer instructions are listed at the bottom of your current invoice.
Transfer WIRE TRANSFER(ABA#021000021)or ACH(ABA#111000614):
Account Number: 100080578
Payment must be sent to the appropriate bank account number listed on your invoice
stub.
Ver 5.0 Page 7 of 7