Complete Agenda Packet - 05/26/2020Town Council
Town of Trophy Club
Meeting Agenda
1 Trophy Wood Drive
Trophy Club, Texas 76262
ZOOM Video Conference7:00 PMTuesday, May 26, 2020
CALL TO ORDER AND ANNOUNCE A QUORUM
A quorum of the Town Council will be present through ZOOM Video Conference on
Tuesday, May 26, 2020 at 7:00 p.m.
INVOCATION - to be delivered by Mayor Sanders
PLEDGES - to be led by Mayor Pro Tem Shoffner
Pledge of Allegiance to the American Flag.
Pledge of Allegiance to the Texas Flag.
PUBLIC COMMENTS
(The meeting is available through Facebook at www.facebook.com/trophyclubgov)
This is an opportunity for citizens to address the Council on any matter. The Council is
not permitted to respond, take action, or discuss presentations made on an item not
listed on the agenda. Presentations are to be limited to matters over which the Council
has authority.
To speak on an item, you may email mayorandcouncil@trophyclub.org and include your
topic on the subject line, which will be read by the presiding officer.
ANNOUNCEMENTS AND REPORTS
1.2020-148-T Receive Town Manager Norwood’s update and provide input regarding the following (S.
Norwood).
*COVID-19 Update
CONSENT AGENDA
All matters listed as Consent Agenda are considered to be routine by the Town Council
and will be enacted by one motion. There will not be a separate discussion of these
items. If discussion is desired, that item will be removed from the consent agenda and
will be considered individually.
2.2020-149-T Take appropriate action regarding the Town Council Regular Session Minutes dated May
12, 2020 (L. Vacek).
DRAFT-TC Regular Session Minutes May 12 2020.pdfAttachments:
Town Council Meeting Page 1 of 48 May 26, 2020
May 26, 2020Town Council Meeting Agenda
3.2020-151-T Take appropriate action regarding the Annual Renewal of the Joint Cooperative
Purchasing Agreement with Denton County (S. Norwood).
Interlocal Cooperative Purchasing Agreement - Town of Trophy Club.pdfAttachments:
4.2020-152-T Take appropriate action regarding the Texas Coalition for Affordable Powers Energy
Cooperative Agreement (S. Norwood).
Staff Report - TCAP 5.26.20.pdf
Exhibit A - Professional Services Agreement.pdf
Exhibit B CESA.pdf
RES. No. 2020-10 TCAP.pdf
Attachments:
5.2020-153-T Take appropriate action regarding the repainting of the Splash Pad surface, not to exceed
the amount of $31,159 (S. Norwood).
Staff Report - Repainting of Splash Pad 5-26-2020.pdf
CertaPro Painters -Trophy Club Splash Pads May 2020.pdf
Attachments:
INDIVIDUAL ITEM(S)
6.2020-150-T Take appropriate action regarding Entryway Monumentation Bids (S. Norwood).
7.2020-154-T Take appropriate action on holding the Fourth of July Fireworks Display (S. Norwood).
Fourth of July Information.pdfAttachments:
EXECUTIVE SESSION
RECONVENE INTO REGULAR SESSION
ADJOURN
* The Town Council may convene into executive session to discuss posted items as
allowed by the Texas Open Meetings Act, LGC.551.071
Town Council Meeting Page 2 of 48 May 26, 2020
May 26, 2020Town Council Meeting Agenda
CERTIFICATION
I certify that the above notice was posted on the bulletin board at Trophy Club Town
Hall, 1 Trophy Wood Drive, Trophy Club, Texas, on May 22, 2020 by 5:00 p.m. in
accordance with Chapter 551, Texas Government Code.
Leticia Vacek, TRMC/CMC/MMC
Town Secretary/RMO
If you have a disability that requires special needs, please contact the Town
Secretary’s Office at 682-237-2903 or 682-237-2905, 48 hours in advance, and
reasonable accommodations will be made to assist you.
Town Council Meeting Page 3 of 48 May 26, 2020
1 Trophy Wood Drive
Trophy Club, Texas 76262Town of Trophy Club
Legislation Details (With Text)
File #: Version:32020-148-T Name:
Status:Type:Agenda Item Draft
File created:In control:5/12/2020 Town Council
On agenda:Final action:5/26/2020
Title:Receive Town Manager Norwood’s update and provide input regarding the following (S. Norwood).
*COVID-19 Update
Attachments:
Action ByDate Action ResultVer.
Receive Town Manager Norwood’s update and provide input regarding the following (S. Norwood).
*COVID-19 Update
Town Council Meeting Page 4 of 48 May 26, 2020
1 Trophy Wood Drive
Trophy Club, Texas 76262Town of Trophy Club
Legislation Details (With Text)
File #: Version:22020-149-T Name:
Status:Type:Agenda Item Draft
File created:In control:5/12/2020 Town Council
On agenda:Final action:5/26/2020
Title:Take appropriate action regarding the Town Council Regular Session Minutes dated May 12, 2020 (L.
Vacek).
Attachments:DRAFT-TC Regular Session Minutes May 12 2020.pdf
Action ByDate Action ResultVer.
Take appropriate action regarding the Town Council Regular Session Minutes dated May 12, 2020 (L. Vacek).
Town Council Meeting Page 5 of 48 May 26, 2020
Town Council Minutes May 12, 2020 Page 1 of 3
TOWN OF TROPHY CLUB
TOWN COUNCIL REGULAR SESSION MINUTES
TUESDAY, MAY 12, 2020, 7 P.M.
ZOOM VIDEO CONFERENCE
The Town Council of the Town of Trophy Club, Texas, met in a Regular Session on Tuesday, May 12, 2020. The
meeting was held through Zoom Video Conference and was open to the public through
www.facebook.com/trophyclubgov.
TOWN COUNCIL MEMBERS:
C. Nick Sanders Mayor
Philip Shoffner Mayor Pro Tem
Sean Bone Council Member, Place 3
Karl Monger Council Member, Place 4
Michael Geraci Council Member, Place 5
STAFF:
Steve Norwood Town Manager
Wade Carroll Assistant Town Manager
Leticia Vacek Town Secretary
David Dodd Town Attorney
Patrick Arata Police Chief
Jack Taylor Fire Chief
Tony Jaramillo Director of Parks and Recreation
Mike Erwin Finance Manager
Jill Lind Communications and Marketing Manager
Mike Pastor Information Services Manager
Mayor Sanders called the meeting to order and noted a quorum with Mayor Pro Tem Shoffner, and Council
Members Bone, Monger and Geraci.
The Invocation was offered by Council Member Monger, asking the Council to be guided by the spirit of community,
the spirit of justice and the spirit of love; for leaders to learn and listen and to have the wisdom and courage to do
what is right and true.
The Pledges to the American Flag and Texas Flag were led by Mayor Sanders.
Town Secretary Vacek confirmed there were no speakers for Public Comment.
ANNOUNCEMENTS AND REPORTS:
1. Receive Town Manager Norwood’s Update (S. Norwood).
COVID-19 – Town Manager Norwood reported that since the re-opening of businesses, there have been a few
questions while additional testing throughout the local area continues. He reported that Governor Abbott will hold a
conference on May 18, 2020 and consider another round of openings to increase the occupancy of restaurants to fifty
percent. ZOOM meetings have been held with Denton County Officials, with no significant changes or new
information. Staff has had multiple discussions regarding Summer Day Camp specifically on challenges of keeping
kids safe and implementing social distancing guidelines, which has made it virtually impossible to open; thus,
recommending the painful decision to cancel Summer Day Camp. Staff is working on a plan to open the pools the first
part of June by opening the kiddie splash pool and main pool on rotating days; no final decision has been made due
to lack of clarity on pools.
Town Council Meeting Page 6 of 48 May 26, 2020
Town Council Minutes May 12, 2020 Page 2 of 3
Mr. Norwood added discussions have been held with Animal Shelter Chairperson Edstrom regarding re-opening the
Dog Park on Friday, May 15, 2020. He mentioned conversations with area cities on their challenges, and will make a
decision by the end of this week. Mr. Norwood stated that balancing public health and safety is at the forefront of all
decisions and there is great concern with all Town activities in implementing social distancing, providing proper
signage, and sanitizing areas.
In regards to the Fourth of July event, Mr. Norwood shared that many cities are proposing to cancel their Summer
events; due to crowd control concerns. This includes Roanoke, Southlake, Hurst, Flower Mound, Bedford and Haslet.
He mentioned that Grapevine will host their fireworks display over the lake. Coppell has discussed hosting their July
4th activities in an open space, and would require residents to remain inside their vehicles, which could be a huge
challenge with the Texas heat. These decisions are based on the CDC Guidelines of keeping large gatherings to under
250 and it becomes a challenge with the popularity of July 4th and other summer activities; not to mention concerts,
weddings, and reunions.
Mayor Sanders suggested posting a Facebook message regarding the Flag Planting Tradition for the Fourth of July to
garner community interest. Director of Parks & Recreation Jaramillo reported that he had a conversation with Parks &
Recreation Chairwoman Nimphius discussing the Flag Planting logistics. Mayor Sanders noted he received a Facebook
message from Chairwoman Nimphius that discussions were in the works but the plans had not been solidified.
Council Member Geraci asked when would be the last day to cancel the Fireworks Display adding that a significant
number of residents can see the fireworks from their backyard and streets. Mr. Norwood reported that a fifty percent
deposit had been paid and that the Town could cancel up to one week prior to the date. He commented that cities
that move forward with their plans will face a huge challenge with crowd control. Mr. Jaramillo mentioned that a rain
clause was included in the agreement and that the vendor reiterated that a seven day notice would be sufficient to
cancel the display. Council Member Geraci recommended the Town hold off on cancelling the Fourth of July Fireworks
Display. Council Member Bone supported Council Member Geraci’s recommendation and felt Governor Abbott’s
upcoming conference call would help guide their decision. Mayor Sanders expressed that if many people gather on the
streets to watch the display; that could impact our residents. Mayor Pro Tem Shoffner commented that eastside
residents will have visibility issues watching the display from the streets. Council Member Bone inquired of other
locations to launch the display. Assistant Town Manger Carroll reported that all sites had been reviewed with the Fire
Department and requirements of a minimum of 75 feet of clearance between each 1-inch in diameter of shells shot
made it difficult to find a wide enough or viable location. Council Member Bone asked that this discussion remain
tentative and if the event is cancelled; communicate the reasons to the residents.
Council Member Monger commented on his recent experience playing Disc Golf with the social distancing guidelines
in place and applauded the Parks Department for making this enjoyable for everyone.
CONSENT AGENDA
All matters listed as Consent Agenda are considered to be routine and will be enacted by one motion. No separate
discussion of these items will be held. Only items removed from the consent agenda will be considered individually.
2. Take appropriate action regarding the Town Council Regular Session Minutes dated April 28, 2020 (L. Vacek).
Motion:
Motion was made by Council Member Bone, seconded by Council Member Geraci, to approve Consent Agenda
Item #2.
Motion carried unanimously 5-0-0.
INDIVIDUAL ITEMS:
3. Issuance of a Proclamation of the Town of Trophy Club regarding Byron Nelson High School Senior Class of
2020 (Mayor Sanders).
Town Council Meeting Page 7 of 48 May 26, 2020
Town Council Minutes May 12, 2020 Page 3 of 3
Mayor Sanders announced that earlier in the week; the Council had recorded a special message through a
Proclamation for the BNHS Senior Class of 2020. At this time, the video message was shown and congratulatory
messages and best wishes were expressed to the Byron Nelson High School Senior Class of 2020 on behalf of Mayor
Sanders and each Council Member.
Marketing Manager Lind reported that the video for the BNHS 2020 Seniors will be displayed later this week.
Motion:
Motion was made by Mayor Pro Tem Shoffner, seconded by Council Member Monger to approve Proclamation 2020-
04.
Motion carried unanimously 5-0-0.
4. Take appropriate action regarding a Resolution of the Town Council submitting one (1) nominee to the Board
of Managers of the Denco Area 9-1-1 District (Mayor Sanders).
Mayor Sanders reported that area Towns and Cities submit their nomination for the Denco Area 9-1-1 District Board of
Managers. He referenced the email provided by Town Secretary Vacek denoting that Jim Carter’s term was the position
that was up this year; adding that Jim Carter was interested in continuing to serve and was eligible for re-appointment.
Mrs. Vacek indicated the Resolution would be updated to show the nomination of Jim Carter. She stated that Sue Tejml
was nominated and voted upon in 2019 and is a current member on the Board. Mayor Pro Tem Shoffner clarified that
Jim Carter’s term was up and made the following motion.
Motion:
Motion was made by Mayor Pro Tem Shoffner, seconded by Council Member Bone to submit the nomination of Jim
Carter to the Board of Managers of the Denco Area 9-1-1 District.
Motion carried unanimously 5-0-0.
Mayor Sanders announced there were no items to discuss in Executive Session.
ADJOURNMENT
Mayor Sanders adjourned the meeting at 7:29 P.M.
ATTEST:
_ _
Leticia Vacek, TRMC/CMC/MMC C. Nick Sanders, Mayor
Town Secretary/RMO
Town Council Meeting Page 8 of 48 May 26, 2020
1 Trophy Wood Drive
Trophy Club, Texas 76262Town of Trophy Club
Legislation Details (With Text)
File #: Version:12020-151-T Name:
Status:Type:Agenda Item Regular Session
File created:In control:5/18/2020 Town Council
On agenda:Final action:5/26/2020
Title:Take appropriate action regarding the Annual Renewal of the Joint Cooperative Purchasing
Agreement with Denton County (S. Norwood).
Attachments:Interlocal Cooperative Purchasing Agreement - Town of Trophy Club.pdf
Action ByDate Action ResultVer.
Take appropriate action regarding the Annual Renewal of the Joint Cooperative Purchasing Agreement with Denton
County (S. Norwood).
Town Council Meeting Page 9 of 48 May 26, 2020
Page 1 of 3
INTERLOCAL COOPERATIVE PURCHASING AGREEMENT
BETWEEN THE TOWN OF TROPHY CLUB AND DENTON COUNTY, TEXAS
STATE OF TEXAS
COUNTY OF DENTON
THIS AGREEMENT is made on the _______ day of _______________, 2020,
between the Denton County, and the Town of Trophy Club; jointly referred to herein as
“parties”.
WHEREAS, the respective parties are authorized by the Interlocal Cooperation
Act, V.T.C.A. Government Code, Chapter 791, to enter into joint contracts and
agreements for the performance of governmental functions and services including
administrative functions normally associated with the operation of government such as
purchasing of necessary materials and supplies;
WHEREAS, it is the desire of the aforesaid parties to comply with and further the
policies and purpose of the Interlocal Cooperation Act;
WHEREAS, the parties cannot normally obtain the best possible purchase price
for materials and supplies acting individually and without cooperation; and
WHEREAS, it is deemed in the best interest of all parties that said governments
do enter into a mutually satisfactory agreement for the purchase of certain materials and
supplies;
WHEREAS, the parties, in performing governmental functions or in paying for
the performance of governmental functions hereunder shall make that performance or
those payments from current revenues legally available to that party;
NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants
and conditions contained herein and pursuant to the authority permitted under the
Interlocal Cooperation Act, promise and agree as follows:
I.
Purpose
The purpose of this Agreement is to authorize the parties’ mutual participation in
various contracts for the purchase of various goods and services. Participation in this
cooperative program will be highly beneficial to the taxpayers of the participating parties
through anticipated savings to be realized.
Town Council Meeting Page 10 of 48 May 26, 2020
Page 2 of 3
II.
Duration of Agreement
This Agreement shall be in effect from the date of execution until terminated by
either party to the agreement.
III.
Relationship of Parties
It is agreed that the parties, in receiving products and/or services specified in this
agreement, shall act as an independent purchaser and shall have control of its needs and
the manner in which they are acquired. Neither party is an agent, employee or joint
enterprise of the other, and each party is responsible for its own actions, forbearance,
negligence and deeds, and for those of its agents or employees, in conjunction with the
utilization and/or cooperative solicitation of any Supplier Agreement obtained in
accordance with Texas law.
Parties shall notify all participating entities of available contracts to include terms
of contract, commodity cost, contact names and addresses, and shall keep participating
parties informed of all changes to the Cooperative Purchasing list of contracts.
Nothing in this agreement shall prevent any participating party from accepting
and awarding bids for commodities subject to this agreement individually and in its own
behalf.
Purchasing Agent is hereby designated as the official representative to act for
Denton County in all matters relating to this agreement.
_________________________ is hereby designated as the official representative
to act for the Town of Trophy Club in all matters relating to this agreement.
IV.
Purchase of Goods and Services
All products and services shall be procured in accordance with procedures
governing competitive bids and competitive proposals.
The parties will be able to purchase from those contracts established by the other
where notice has been given in the specifications and successful bidder has accepted
terms for Cooperative Purchasing Agreements for local governments.
The parties hereto agree that the ordering of products and services through this
agreement shall be their individual responsibility and that the successful bidder or bidders
shall bill each party directly, or as deemed advantageous to both parties.
Town Council Meeting Page 11 of 48 May 26, 2020
Page 3 of 3
The parties agree to pay successful bidders or anticipating governments directly
for all products or services received from current revenues available for such purchase.
Each party shall be liable to the successful bidder only for products and services ordered
by and received by it, and shall not by the execution of this agreement assume any
additional liability.
Parties do not warrant and are not responsible for the quality or delivery of
products or services from successful bidder. The participating parties shall receive all
warranties provided by successful bidder for the products or services purchased.
In the event that any dispute arises between individual parties and a successful
bidder, the same shall be handled by and between the participating party’s governmental
body and the bidder.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed by their authorized officers thereon the day and the year first above written.
DENTON COUNTY, TEXAS
____________________________________ ______________________________
By: Andy Eads By:
Denton County Judge TOWN OF TROPHY CLUB
Acting on behalf of and by authority
of the Denton County Commissioners Court
Approved as to content:
____________________________
Director of Purchasing
Approved as to form:
_____________________________
Assistant District Attorney
Town Council Meeting Page 12 of 48 May 26, 2020
1 Trophy Wood Drive
Trophy Club, Texas 76262Town of Trophy Club
Legislation Details (With Text)
File #: Version:12020-152-T Name:
Status:Type:Agenda Item Draft
File created:In control:5/18/2020 Town Council
On agenda:Final action:5/26/2020
Title:Take appropriate action regarding the Texas Coalition for Affordable Powers Energy Cooperative
Agreement (S. Norwood).
Attachments:Staff Report - TCAP 5.26.20.pdf
Exhibit A - Professional Services Agreement.pdf
Exhibit B CESA.pdf
RES. No. 2020-10 TCAP.pdf
Action ByDate Action ResultVer.
Take appropriate action regarding the Texas Coalition for Affordable Powers Energy Cooperative Agreement (S.
Norwood).
Town Council Meeting Page 13 of 48 May 26, 2020
To: Mayor and Town Council
From: Steve Norwood, Town Manager
CC: Mike Erwin, Finance Manager
Letty Vacek, Town Secretary
Re: TCAP
Town Council Meeting, May 26th, 2020
Agenda Item:
A resolution adopting TCAP’s professional services agreement and Gexa energy’s commercial
electric service agreement for power to be provided on and after January 1, 2023; authorizing
TCAP to procure power in the wholesale market on behalf of members who choose to participate
in the Strategic Hedging Program (SHP); authorizing the Mayor to execute a professional services
agreement for the purchase of energy for TROPHY CLUB in the wholesale market from an energy
manager selected by TCAP (“Energy Manager”) and to select an acceptable, cost-beneficial REP
to serve TROPHY CLUB’s electric accounts.
Explanation:
This resolution is designed for TCAP to contract for the purchase of energy for TROPHY CLUB in
the wholesale market from an energy manager selected by TCAP (“Energy Manager”) and to
select an acceptable, cost-beneficial REP to serve MEMBER’s electric accounts. TCAP shall
provide procurement services, which services shall consist of securing wholesale power for
MEMBER through an alternative procurement strategy, such as TCAP’s Strategic Hedging
Program (“SHP”), as may be authorized and defined by TCAP’s Board of Directors.
The Town of Trophy Club was a founding member of the predecessor of TCAP beginning in 2002.
TCAP is a non-profit, political subdivision corporation, owned and controlled by its 165 political
subdivision members, the vast majority of whom are cities. TCAP was formed in 2011 from the
merger of Cities Aggregation Power Project (“CAPP”) and South Texas Aggregation Project
(“STAP”), both of which were created in 2001, shortly before retail deregulation became effective
on January 1, 2002. TCAP is governed by a 15 member board of directors, all of whom must be
city employees or elected city officials. Typically, board members have been mayors, city
managers, assistant city managers, finance directors or city attorneys.
Town Council Meeting Page 14 of 48 May 26, 2020
Attachments:
Exhibit A – Professional Services Agreement
Commercial Electricity Service Agreement
Resolution No. 2020-10
Recommendation:
Staff recommends Council approve the resolution allowing TCAP to act as an agent of the Town
and enter into the professional services and commercial electricity service agreements for
electricity as presented.
Town Council Meeting Page 15 of 48 May 26, 2020
EXHIBIT A
PROFESSIONAL SERVICES AGREEMENT BETWEEN
TOWN OF TROPHY CLUB, TEXAS AND TEXAS COALITION FOR
AFFORDABLE POWER, INC.
This Professional Services Agreement (“AGREEMENT”) is made and entered by and
between Texas Coalition for Affordable Power, Inc. (“TCAP”), a non-profit, political
subdivision corporation, and Town of Trophy Club, Texas (“MEMBER”), a TCAP
member.
SECTION 1 DURATION:
This AGREEMENT becomes effective as of signing by MEMBER and shall remain
effective as long as MEMBER is being served by TCAP and MEMBER’s electric load
included in a current TCAP procurement.
SECTION 2 PURPOSE OF AGREEMENT:
The purpose of this AGREEMENT is to define services and obligations of TCAP to
MEMBER and obligations of MEMBER to TCAP and other members. In furtherance of
this AGREEMENT, MEMBER will enter into a Commercial Electric Service Agreement
(“CESA”) with a retail electric provider (“REP”) selected by TCAP pursuant to the terms
set forth herein; provided that nothing in this AGREEMENT is intended to alter the price
or other terms of MEMBER’s current CESA in effect through December 31, 2022.
SECTION 3 OBLIGATIONS OF TCAP TO MEMBER:
MEMBER authorizes TCAP to contract for the purchase of energy for MEMBER in the
wholesale market from an energy manager selected by TCAP (“Energy Manager”) and to
select an acceptable, cost-beneficial REP to serve MEMBER’s electric accounts. TCAP
shall provide procurement services, which services shall consist of securing wholesale
power for MEMBER through an alternative procurement strategy, such as TCAP’s
Strategic Hedging Program (“SHP”), as may be authorized and defined by TCAP’s Board
of Directors. MEMBER may elect to consider fixed-price, fixed-term offers for wholesale
power supply, such election to be communicated to TCAP separately in writing by
providing an Authorized Election Form to TCAP, the form of which has been attached to
this AGREEMENT as Exhibit A. If MEMBER has provided to TCAP an Authorized
Election Form, TCAP’s procurement services to MEMBER shall also consist of arranging
fixed-price, fixed-term offers to MEMBER following solicitation of competitive offers.
TCAP consultants and attorneys will negotiate terms and conditions of all contracts,
monitor performance of Energy Managers and REPs, work to avoid and remedy problems
that may be encountered by MEMBER where possible, assist MEMBER with wires
company issues, and represent MEMBER in energy related matters before State agencies,
the courts or legislature. TCAP will provide additonal customer services to MEMBER that
are defined in SECTION 5.
Town Council Meeting Page 16 of 48 May 26, 2020
SECTION 4 OBLIGATIONS AND RIGHTS OF MEMBER:
MEMBER will honor the terms of its CESA and promptly pay or promptly dispute invoices
from its REP. MEMBER will comply with the confidentiality and non-disclosure
obligations contained in its CESA and Section 7 of this AGREEMENT. MEMBER will
designate one or more individuals to receive notices and updates from TCAP and will
promptly update contact information. MEMBER will pay aggregation fees to support the
non-profit functions of TCAP assessed annually by the TCAP Board of Directors and
recovered as part of the energy charges paid to REP. Also, MEMBER will pay or receive
refunds equal to the Quarterly Adjustment and the Annual Adjustment mutually agreed
upon by TCAP and the Energy Manager to address certain variable costs and charges,
including costs imposed by ERCOT, such payment or receipt of funds subject to the reserve
account as further described herein. TCAP members will fund, and TCAP will maintain
and administer, a reserve account to facilitate the reconciliation of any Quarterly
Adjustments or Annual Adjustments by collecting any excess amounts paid and/or paying
any deficient amounts incurred (as possible). The reserve account balance will be
maintained at a minimum level to cover anticipated future needs for up to two (2) years.
The TCAP Board may vote to refund to members amounts in excess of future anticipated
needs. Any monies remaining in the reserve account at the dissolution of TCAP will be
refunded to current membership at the time of dissolution. TCAP is owned and controlled
by its members and is governed by a Board of Directors consisting of employees or elected
officials of members. Consistent with TCAP’s Bylaws, each MEMBER has a right to
nominate its representative to serve on the Board of Directors and has a right to vote in
annual elections of Board members. MEMBER has a right to attend or monitor each Board
meeting. TCAP has a financial audit performed each year and MEMBER has a right to a
copy of the annual audit upon request.
SECTION 5 TCAP SERVICES TO MEMBER:
A. Procurement of Energy Supplies and REP Services
1. TCAP Procurement Services and Capabilities
TCAP will assist prospective members in reviewing market conditions and in estimating
the most price opportune time to contract for energy supplies. TCAP will work with
MEMBER to achieve a competitive price that balances supply security and risk tolerance
while maintaining superior billing and customer services. As a political subdivision
corporation, offering electricity procurement to political subdivisions, TCAP has the ability
to procure wholesale energy supplies and REP services separately to secure the most
effective combination of competitively priced energy supplies and superior billing and
customer services. TCAP may utilize either wholesale or retail sources of power, or some
combination of both. TCAP may utilize multiple suppliers with different generation
resources. TCAP will solicit bids from multiple sources for energy supplies. TCAP
aggregates the load of all members to maximize clout in negotiating contract terms.
TCAP’s objective in negotiations with suppliers is to continue obtaining favorable terms
Town Council Meeting Page 17 of 48 May 26, 2020
regarding band widths for annual usage based on total load of all members (rather than
based on MEMBER’s individual load) and to minimize fees for adding or deleting
accounts. TCAP will monitor the wholesale and retail markets for favorable hedging
opportunities. TCAP will also monitor, evaluate and issue requests for proposals for power
development opportunities beneficial to its MEMBERS, including renewable projects
(each, a “Power Project”).
2. MEMBER Procurement Options
If MEMBER elects a fixed-price contract for a fixed period by submitting an Authorized
Election Form, TCAP will function as MEMBER’S agent in the wholesale energy
marketplace in soliciting, evaluating and negotiating each such fixed-price contract.
Absent an election, MEMBER shall participate in other procurement strategy options
offered by TCAP, such as TCAP’s SHP, and TCAP will function as MEMBER’s electric
energy procurer. As such, TCAP will (i) oversee the Energy Manager, (ii) will direct the
Energy Manager to solicit wholesale energy market quotes, (iii) will cause the Energy
Manager to transact at the most favorable executable market quotes and (iv) will negotiate
and develop the Energy Price in MEMBER’S CESA (the “CESA Energy Price”). The
CESA Energy Price shall be developed and agreed upon by TCAP, the Energy Manager
and the REP and shall include the wholesale energy market transactions as well as Energy
Manager’s estimate of any non-fixed charges, including zonal congestion charges,
ancillaries service charges, and other charges in connection with MEMBER’S load. If
MEMBER elects to purchase power from a Power Project solicited and chosen by TCAP
via a competitive RFP process (or other similar process), TCAP will function as
MEMBER’S electric energy procurer, and will direct the Energy Manager to include the
value of the power procured from such projects in the development of MEMBER’S CESA
price.
B. Customer and Billing Services Provided by TCAP
1. REP Portal
TCAP consultants oversee the development and presentation of the REP’s portal for TCAP
members; the REP will be responsible for operation of the portal. TCAP provides training
and assistance regarding portal use.
2. REP Customer Service
TCAP negotiates with the REP regarding service standards and annually reviews REP
performance. TCAP maintains a right to replace a REP for unsatisfactory performance
without affecting the price of wholesale power, so long as the replacement REP has a credit
rating acceptable to the Energy Manager. TCAP continuously monitors customer billings
and will alert both the REP and MEMBER, when appropriate, of any billing errors and the
adjustments needed to ensure accurate and reliable billings to MEMBER. TCAP will
advocate on behalf of MEMBER when needed to resolve billing or customer service issues.
Town Council Meeting Page 18 of 48 May 26, 2020
TCAP will review customer billings and make MEMBER aware of inactive accounts that
MEMBER may be able to disconnect to save monthly charges.
3. TCAP Assistance with Budgets and Required Filings and Assistance with TDSP
Issues
TCAP monitors Public Utility Commission (“PUC”) and ERCOT activity and will provide
MEMBER a forecast of changes in non-by passable charges that may impact MEMBER’s
annual budget estimates. TCAP will prepare an annual electricity cost estimate for
MEMBER. TCAP will assist MEMBER in preparation of energy related reports that may
be necessary for MEMBER to file in response to legislative or agency mandates. TCAP
will assist MEMBER in understanding non-bypassable charges included in REP invoices,
and assist in resolving issues caused by errors of MEMBER’S Transmission and
Distribution Service Provider (“TDSP” aka “wires company”).
4. Information Services
TCAP maintains a member web site, www.tcaptx.com. In addition to regular blog postings
on energy news relevant to MEMBER, TCAP has prepared and posted major reports on
the history of deregulation in Texas and a history of ERCOT. TCAP consultants
continuously monitor the Nymex gas market, ERCOT energy market, and economic
conditions that may affect MEMBER, as well as activities at the PUC and ERCOT.
Important trends are noted in consultant reports to the Board of Directors and are attached
to Board Minutes. TCAP’s Executive Director prepares and distributes a monthly
newsletter and coordinates TCAP activities with various city coalitions and Texas
Municipal League (“TML”). The Executive Director monthly newsletters will also include
important or trending issues in the energy markets.
5. Demand Response, Distributed Generation and Cost Savings Strategy
TCAP will work with relevant service providers to make available to MEMBER
competitive demand reduction programs that facilitate MEMBER’s participation in TDSP
and ERCOT cost reduction strategies approved by the PUC. Upon request, TCAP will
monitor and evaluate demand reduction program performance metrics. TCAP will assist
MEMBER in reviewing, analyzing and developing distributed generation programs that
can reduce wires and energy costs and/or provide backup power to specific facilities.
TCAP will assist MEMBER in meeting renewable energy goals established by MEMBER,
including behind-the-meter solar projects and local wind projects.
6. Regulatory and Legislative Representation
TCAP will provide representation and advocacy services on energy issues relevant to
MEMBER in regulatory and legislative areas including, but not limited to, ERCOT
stakeholder meetings, PUC projects and dockets, and legislative actions.
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7. Strategic Hedging
To the extent that there is sufficient interest and commitment of load of TCAP members
within an ERCOT zone, and to the extent MEMBER has not elected a fixed-price contract
for a fixed period, MEMBER will perpetually (subject to potential charter or ordinance
constraints on length of contracts) commit to two-year participation obligations.
MEMBER may terminate participation in the SHP, without energy price penalties and with
minimal other termination fees, by providing sufficient notice as set forth herein (Section
6). A SHP price will be determined at least 9 months prior to the effective date of the price
by averaging the winning bids from periodic competitive auctions that occur throughout
the 24 months preceding the effective date. TCAP will direct Energy Manager to conduct
the periodic competitive auctions. TCAP will have the right to audit the auction results.
The auction process will be designed to identify competitively priced energy supplies from
a variety of creditworthy suppliers, resulting in prices that are rarely, if ever, significantly
above prevailing market prices and that should generally be less than pricing for long-term
fixed priced contracts (when evaluated from a common contract start date and term).
Designed to take advantage of the characteristics of the nation’s well supplied energy
markets, the SHP will also be flexible enough to respond to market changes when and if
they occur in the future. Participation in the SHP may be viewed as a series of 24 -month
forward year-to-year contracts for as long as desired by MEMBER. If MEMBER
participates in the SHP, MEMBER agrees that TCAP is authorized to direct Energy
Manager to procure electric energy in the wholesale market on MEMBER’s behalf and that
TCAP is authorized to commit MEMBER’s load to periodic competitive auctions.
SECTION 6 MEMBER RIGHT OF TERMINATION:
A. Fixed-Term, Fixed-Price Contract
MEMBER may terminate a CESA prior to the end-of-term specified in a contract subject
to payment of “Liquidated Damages” prescribed in MEMBER’s CESA. If MEMBER
commits to a fixed multi-year term, fixed-price contract and wants to terminate the
agreement prior to the end of the fixed multi-year term, liquidated damages will be based
on the differential in the price of electric energy futures contracts used to support the fixed-
price agreement and the price of comparable electric energy contracts at time of termination
and shall also include damages prescribed herein and in the CESA, as applicable. If electric
energy prices are lower at the point of termination than they were at time of contracting,
MEMBER should expect to pay energy price damages upon early termination. In any
event, any termination payment will be calculated and assessed in accordance with
MEMBER’s CESA.
B. Strategic Hedging Program
Since the SHP is based on a series of one-year term contracts, MEMBER is entitled to exit
the program so long as notice of termination can be given prior to inclusion of MEMBER’s
load in the competitive auction process for a future year’s price. TCAP will periodically
notify MEMBER of expected procurement schedules and provide no less than 90 days
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prior notice of any upcoming solicitiation, and MEMBER may notify TCAP that it wants
to exclude its load from the competitive auction process by giving notice at least 60 days
prior to the next procurement date. Termination of involvement in SHP without
appropriate notice will require calculation of damages as prescribed by CESA under Edison
Electric Institute (“EEI”) principles with the intent of making the REP and Energy Manager
whole for the termination. Liquidated damages will be based on the differential in the price
of electric energy futures contracts used to support the SHP price and the price of
comparable electric energy contracts at time of termination and shall also include damages
prescribed herein and in the CESA, as applicable. If electric energy prices are lower at the
point of termination than they were at time of contracting, MEMBER should expect to pay
energy price damages upon early termination. In any event, any termination payment will
be calculated and assessed in accordance with MEMBER’s CESA.
C. Participation in Power Projects
If MEMBER has chosen to purchase power from a Power Project through TCAP, in
accordance with a signed Project Addendum attached to MEMBER’S CESA, MEMBER’s
termination rights with respect to its commitment to purchase power from the Power
Project shall be contained in the Project Addendum.
SECTION 7 CONFIDENTIALITY:
MEMBER is a governmental body subject to public information laws, including Chapter
552 of the Texas Government Code. If MEMBER receives a valid request under applicable
public information laws for information related to this AGREEMENT or its CESA, it shall
provide TCAP notice of the request including a description the information sought prior to
MEMBER’s release of information so that TCAP has the opportunity to determine whether
such information is subject to an exception as trade secret, competitive, comercial, or
financial information. With the exception of the preceding disclosures pursuant to public
information laws, a Party (that party, the “Receiving Party”) shall keep confidential and
not disclose to third parties any information related this AGREEMENT, except for
disclosures to Authorized Parties or as otherwise required by law; and provided that
MEMBER authorizes TCAP to provide Energy Manager and REP with any relevant
information concerning MEMBER’s account, usage and billings. The provisions of this
Section 7 apply regardless of fault and survive termination, cancellation, suspension,
completion or expiration of this AGREEMENT for a period of two (2) years. “Authorized
Parties” means those respective officers, directors, employees, agents, representatives and
professional consultants of MEMBER and TCAP and each of their respective affiliates that
have a need to know the confidential information for the purpose of evaluating, performing
or administering this AGREEMENT.
SECTION 8 PARAGRAPH HEADINGS:
The paragraph headings contained in this AGREEMENT are for convenience only and
shall is no way enlarge or limit the scope or meaning of the various and several paragraphs.
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SECTION 9 COUNTERPARTS:
This AGREEMENT may be executed in multiple counterparts, each of which shall be
deemed an original, and all of which shall constitute but one and the same instrument.
SECTION 10 DEFINITIONS:
“Annual Adjustment” shall mean either a credit to MEMBER for the over-collection of
funds, or a charge to MEMBER for under-collection of funds, related to Power Project
settlements, if applicable. For those MEMBERS that participate in SHP, the Annual
Adjustment shall also include (i) adjustments related to the loss factor for each specific
ERCOT zone and (ii) adjustments related to load reconciliation as determined by TCAP,
the Energy Manager and the REP.
“Energy Manager” means the wholesale market participant selected by TCAP to conduct
SHP procurements at TCAP’s direction, in accordance with Section 5A and Section 7 of
this Agreement. The Energy Manager may sell all or a portion of the required wholesale
energy to TCAP or TCAP’s REP.
“Power Project” means a power generation project identified by TCAP to supply electric
energy to one or more TCAP Members.
“Project Addendum” means the Addendum for a Power Project, if any, signed and
attached as an Exhibit to MEMBER’S CESA.
“QSE Services Fee” means the QSE Services Fee in affect during the Delivery Term, as
agreed between TCAP and Energy Manager.
“Quarterly Adjustment” shall mean either a credit to MEMBER for the over-collection
of funds, or a charge to MEMBER for under-collection of funds, related to (i) ERCOT
zonal congestion charges and (ii) ancillary services charges and other charges imposed by
governmental agencies or ERCOT upon wholesale suppliers or REPs under statutes,
regulations or courts for services within ERCOT zones. Said charges or refunds will be
proportional to MEMBER’s relative contribution to TCAP load within specific ERCOT
zones.
“Retail Electric Provider” or “REP” means the Retail Electric Provider that is party to
(i) the REP Services Agreement with TCAP and (ii) the CESA between itself and
MEMBER for the provision of retail electric service.
“Strategic Hedging Program” or “SHP” means an energy procurement strategy
approved by TCAP’s Board of Directors, overseen by TCAP’s designated consultants, and
administered by TCAP’s appointed Energy Manager, whereby wholesale energy is
solicited and procured at agreed upon intervals, as directed by TCAP.
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EXECUTED on this the 26 day of May, 2020.
MEMBER:
By:
Printed Name:
Title:
TCAP:
By:
Printed Name:
Title:
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ELGCTXTCAPCESAEXTEND040920
EXHIBIT B
COMMERCIAL ELECTRICITY SERVICE AGREEMENT
This Commercial Electricity Service Agreement, including all of the Attachments, Schedules, and Exhibits, which
are attached and incorporated (collectively, the “Agreement”), is entered into between Gexa Energy, LP (“Gexa”), a
Texas limited partnership, and Town of Trophy Club, Texas (“Customer”). Gexa and Customer may be referred to
individually as a “Party” or collectively as the “Parties”.
SECTION 1: RETAIL ELECTRIC SALES AND SERVICES
1.1 Appointment and Scope. Customer appoints Gexa as its Retail Electric Provider (“REP”) for the ESI ID(s)
served under this Agreement. Customer authorizes Gexa to: (i) act as Customer’s REP for all purposes; and (ii) provide
the services required of a REP including, without limitation, the procurement, scheduling and delivery of electricity
throughout the Term to each of the ESI ID(s) in accordance with the terms set forth in this Agreement, including the
Terms and Conditions of Service set forth in Attachment A. Customer’s appointment imposes no other duties on Gexa
other than those specified in this Agreement and the REP Services Agreement.
1.2 Agreement to Purchase. Customer shall purchase its electricity requirements from Gexa throughout the Term
for each of the ESI ID(s) except as otherwise provided. The electricity and services Customer receives from Gexa is for
Customer's exclusive proprietary use. Customer alone shall pay for electricity and services provided and for electricity
and services Customer fails to take pursuant to its contractual obligations. If Gexa fails to deliver sufficient quantities of
electricity to the TDSP for delivery to Customer or fails to schedule the delivery of sufficient quantities of electricity
(collectively, a “Scheduling Failure”) the TDSP is obligated by law and by its tariff to deliver sufficient electricity to satisfy
Customer’s needs. If a Scheduling Failure occurs, Gexa shall financially settle, at no additional cost or expense to
Customer, with its Qualified Scheduling Entity (as defined by ERCOT) for the purchase of electricity necessary to cover
the Scheduling Failure.
1.3 Membership in TCAP. Customer is a current member of the Texas Coalition for Affordable Power, Inc.
(“TCAP”), and has entered into the Professional Services Agreement (the “PSA”) authorizing the purchase of wholesale
energy on behalf of the Customer by TCAP and/or TCAP’s Energy Manager. Such wholesale energy purchases will
affect the calculation of the Energy Price throughout the Term of this Agreement as described in Section 2. If, at any
time during the Term, Customer elects to participate in a Power Purchase Agreement with a project to be developed for
TCAP’s members, and executes the Project Addendum for such project, then the Project Addendum will be attached
hereto as Schedule I. Notwithstanding Customer’s TCAP membership status, Customer agrees to fulfill all of its
obligations under this Agreement, the PSA and, if applicable, the Project Addendum throughout the Term of this
Agreement.
1.4 Term.
(a) Effective Date and Termination Date. Gexa shall provide retail electric service under this Agreement to each
ESI ID beginning on the Effective Date and Terminating on the Termination Date, as further defined in this Section 1.4(a)
(such period, the "Term"). The Effective Date will occur either (i) on the date occurring on or after the Expected Start
Date stated in Attachment B on which each such ESI ID is enrolled with Gexa’s service for any new customer, or (ii) if
Customer is an existing customer then the Expected Start Date is the meter read date following the expiration of the
Customer’s prior Agreement with Gexa. Gexa shall continue to provide retail electric service to each ESI ID unless or
until the Customer gives notice to TCAP and Gexa of its intent to terminate its membership with TCAP (“Termination
Notice”). The Termination Date will occur on each respective ESI ID meter read date during the last month of the calendar
year for which electricity has been purchased on Customer’s behalf by either TCAP or the Energy Manager in accordance
with the PSA prior to the Termination Notice, except that in no event will the Term exceed beyond December 31, 2037.
For avoidance of doubt, the Termination Date for each respective ESI ID shall be the sooner to occur of (i) the meter
read date occurring in the last month of the calendar year for which electricity has been purchased by either TCAP or
the Energy Manager on behalf of the Customer prior to the Termination Notice or (ii) the meter read date occurring in
December 2037. As a result of variations in the timing of the Effective Date described in this Section 1.3 the Term may
include a partial calendar month in addition to the number of months set forth in Attachment B, if any.
(b) Delayed Effective Date. Gexa shall use commercially reasonable efforts to cause the Effective Date for each
ESI ID to occur on the Expected Start Date. If the Effective Date for an ESI ID occurs more than 20 days after the
Expected Start Date, Customer may provide Gexa with evidence of the amount of electricity purchased by Customer
from its current REP in connection with that ESI ID during the period on and after the 21st day after the Expected Start
Date until the Effective Date (the "Delayed Effective Date Period"), and the total amount paid by Customer to its current
REP for the electricity it purchased during the Delayed Effective Date Period (the “Delayed Effective Date Electricity
Amount”). Upon receipt of evidence from Customer Gexa shall calculate and provide Customer a credit against future
purchases under this Agreement equal to the positive amount resulting from the following calculation: (a) the Delayed
Effective Date Electricity Amount minus (b) the amount that Customer would have paid to Gexa pursuant to this
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2 ELGCTXTCAPCESAEXTEND040920
Agreement during the Delayed Effective Date Period for the same amount of electricity purchased by Customer from its
current REP during that period in connection with the affected ESI ID(s); provided, that Gexa shall not be required to
provide a credit with respect to any period during a Delayed Effective Date Period where the delay was caused by an
event outside of Gexa’s control.
(c) Service After Term. If, for any reason, service continues beyond the Term, it will be on a month-to-month basis,
and the Agreement will continue in effect for the ESI ID(s) except that the Energy Price will be the greater of: (i) the
Energy Price as set forth in Section 2.1 below, or (ii) the aggregate weighted average of the Market Rate (as defined
herein) as determined for all of the ESI ID(s), for as long as service continues. If Customer has not switched from Gexa
to another supplier at the expiration of the Term, Gexa shall serve Customer at the rate set forth in this Section for a
minimum of 60 days. After those 60 days, Gexa may continue to serve Customer or terminate the Agreement and
disconnect Customer.
1.5 Modifications to ESI IDs. Gexa shall work with Customer in good faith during the Term to reasonably
accommodate and assist Customer with the management of its electricity needs. If at any time during the Term,
Customer wants to i) add or delete one or more ESI IDs, ii) otherwise modify the ESI ID information as a result of a
decision by Customer to open, close or sell a facility owned or leased by Customer, iii) expand an existing facility, or iv)
increase an existing facility’s metered load, then Customer shall provide written notice to Gexa of such change (“ESI ID
Change Notice”) . If such change to the ESI ID is expected to occur prior to the first month of any calendar year for which
the Energy Price has been established as of the date of the ESI ID Change Notice, in accordance with Section 2.1 (a)
of this Agreement, such notice shall include Customer’s election of the “Special Load Threshold,” as defined below,
which will apply to such change in load. If, in Gexa’s reasonable judgment, i) the addition is a separately metered load
which does not exceed the applicable Special Load Threshold; or ii) does not result in a net increase in excess of the
applicable Special Load Threshold for an existing facility, Gexa shall use commercially reasonable efforts to promptly
implement such changes, including providing required notices to ERCOT. If the addition is a separately metered load
which exceeds the applicable Special Load Threshold, or results in a net increase in excess of the applicable Special
Load Threshold after consideration of any contemporaneous offsetting load decreases, Gexa shall provide service to
that ESI ID and shall determine any incremental charge or credit to provide service to any changed ESI IDs. Gexa shall
apply such charge or credit to the affected ESI IDs, after such charges have been reviewed by TCAP. “Special Load
Threshold” shall mean additional peak demand that is reasonably expected during the first twelve months following
commercial operations to exceed, at Customer’s election, either (i) 0.25 MW at any time or an annual average load of
0.125 MW or (ii) 1.0 MW at any time or an annual average load of 0.5 MW. Gexa shall make periodic reports regarding
changes to the billing status of any ESI ID(s) available to Customer and TCAP. Amendments that add or remove ESI
ID(s) as a result of changes made pursuant to this section are incorporated into this Agreement, and are effective on the
Effective Date for each ESI ID(s) added to this Agreement or the date that retail electric service for any removed ESI
ID(s) ceases or is transferred to another REP.
SECTION 2: RETAIL ELECTRIC ENERGY SERVICE CHARGES
2.1 Energy Price.
(a) If Customer has elected to fix all or a portion of the Energy Price for a fixed term by providing an Authorized
Election Form to TCAP in accordance with the PSA, the Energy Price shall equal the fixed price as
determined by TCAP in accordance with the PSA, and the Authorized Election Form. Any portion of the
Energy Price that is not fixed shall be noted in the Authorized Election Form, and shall be settled with
Customer in accordance with Section 2.2 of this Agreement. If Customer has not made such an election,
the Energy Price shall be determined in accordance with the PSA, as follows:
(i) TCAP shall periodically solicit, or direct its designated Energy Manager to solicit, wholesale energy
market quotes, and may direct the Energy Manager to transact at the lowest of the market quotes
obtained for the purpose of serving customer’s load, in accordance with the PSA (each such
transacted quote, a “Wholesale Transaction”).
(ii) Once TCAP has directed its Energy Manager to enter into Wholesale Transactions sufficient to
serve Customer’s load for a given calendar year, Energy Manager and TCAP shall establish the
Energy Price for that Calendar Year in accordance with those procedures outlined in the PSA, which
Customer hereby acknowledges it has reviewed and accepted. TCAP shall set the Energy Price for
a given Calendar Year no later than nine (9) months prior to the start of such Calendar Year. If
Customer elects to participate in a project and executes the Project Addendum, the Energy Price
shall include an estimate of the Project Settlement for each month of the Calendar Year in
accordance with the Project Addendum.
(b) For the purposes of Section 3 the Energy Price shall be converted to dollars per kWh.
2.2 Energy Price Adjustments.
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3 ELGCTXTCAPCESAEXTEND040920
(a) Energy Manager shall have the right to reconcile the revenues received from the Customer with Energy
Manager’s Supplier Cost on (i) a quarterly basis, by determining the Quarterly Adjustment in the manner
specified in the PSA and (ii) on an annual basis, by determining the Annual Adjustment in the manner specified
in the PSA. The Quarterly Adjustment and Annual Adjustment may be either a charge or a credit, and shall be
collected from or remitted to Customer, as appropriate, in the manner specified in the PSA.
(b) TCAP and Energy Manager may mutually agree to fix certain component charges comprising Customer’s Energy
Price for a given Calendar Year, if TCAP determines that fixing these charges is likely to benefit Customer.
Charges that are fixed by TCAP and Energy Manager for a given Calendar Year shall not be included in the
calculation of either the Quarterly Adjustment or the Annual Adjustment for such Calendar Year, in accordance
with the PSA.
2.3 Additional Pass-Through Charges. Gexa shall pass through and identify separately on Customer’s bill with
no mark-up Delivery Charges, Non-Recurring Charges, or Taxes that are not included in the Energy Price(s). All charges
are exclusive of Taxes. Pass-Through charges may include charges related to amounts owed to Gexa and/or Wholesale
Supplier in accordance with Section1.3.
2.4 Tax Exempt Status. Customer shall provide Gexa with all required exemption certificates if Customer is exempt
from paying any Taxes. Gexa shall not recognize an exemption without the exemption certificates and shall not be
required to refund or credit previously paid Taxes unless the taxing entity sends the refund to Gexa. Gexa shall, however,
assign to Customer any applicable claims for refund.
SECTION 3: BILLING AND PAYMENT
3.1 Billing and Payment. Gexa shall invoice Customer’s accounts on a monthly basis and shall bill Customer on
a consolidated basis for all ESI IDs upon Customer’s request. Gexa shall provide a summary bill for all accounts and
detailed information for each account. Customer shall remit payment within 30 days of receiving the invoice. Gexa shall
base the invoice amount on actual data provided by ERCOT and the TDSP. If ERCOT or the TDSP does not provide
actual data in a timely manner, Gexa shall use estimated data to calculate the invoice and, upon receipt of actual data,
reconcile the charges and adjust them as needed in subsequent invoices.
3.2 Project Settlement Agent Services. Gexa shall remit the total Project Settlement to the Project on a monthly
basis, in accordance with the REP Services Agreement.
3.3 Late Penalties, Interest on Overdue Payments, Invoice Disputes. If Customer fails to remit all undisputed
amounts on or before the due date, interest will accrue on any due and unpaid amounts from the due date at a rate of
one percent per month, or the highest rate permitted by law, whichever is less. If Customer disputes a portion of an
invoice it shall provide Gexa a written explanation specifying the amount in dispute and the reason for the dispute within
20 days of the invoice date. If Customer does not provide timely notice, Customer shall owe all amounts by the due
date. Notwithstanding the above, if Customer notifies Gexa of a disputed invoice, regardless of whether Customer has
already paid the invoice, Gexa shall make records in its possession that are reasonably necessary for Customer to
determine the accuracy of the invoice available to Customer during normal business hours; provided, however that
neither party may request an adjustment or correction of an invoice unless written notice of such dispute is given within
twelve months after the due date of such invoice; provided further, that such twelve month limit does not apply in the
case of TDSP meter tampering charges first billed to Gexa that prevent Gexa from reasonably adjusting invoices prior
to the twelve month period. In all cases, Gexa and Customer shall use good faith efforts to resolve disputes. In the
event the Parties are unable to resolve a dispute within ten days of the notice date, either Party may begin legal
proceedings to seek resolution. Any amounts determined owed shall be paid within three days after a decision.
3.4 Aggregator Fees. Pursuant to the REP Services Agreement between Gexa and TCAP, Gexa is obligated to
pay TCAP an amount determined by multiplying a TCAP Aggregation Fee by the volume consumed in association with
the ESI IDs (the "Aggregator Fee"). Customer shall pay the Aggregator Fee. The initial TCAP Aggregation Fee is
$0.001 per kWh, however, it may be changed by the TCAP Board of Directors at any time. Gexa shall state the
Aggregator Fee as a separate line item on the Customer’s bill.
3.5 Billing Guarantee. Gexa shall issue an invoice based on actual or estimated usage to Customer for every ESI
ID at least one time per month. If, for reasons other than Force Majeure, Gexa fails to invoice an ESI ID within 120 days
of any scheduled meter read, Gexa irrevocably waives its right to invoice Customer for any energy consumed at that ESI
ID for the meter read cycle that should have been invoiced, unless not less than 10 days prior to the expiration of such
120 day period, Gexa provides Customer with a written explanation of the circumstances that prevent Gexa from issuing
that invoice and the expected time by which an invoice can be issued. In such event, Customer and Gexa shall determine
a reasonable extension period, not to exceed 30 days, within which an invoice will be issued. Gexa shall adjust or true-
up each invoice no more than twice and Gexa shall issue such adjustments within 210 days of the initial issue date.
Notwithstanding the foregoing, Gexa may issue an invoice or partial invoice arising from meter tampering charges without
limitation and within a reasonable time after first billed to Gexa by the TDSP.
SECTION 4: CUSTOMER INFORMATION, CREDIT AND DEPOSITS
4.1 Customer Information. By entering into this Agreement and appointing Gexa as Customer’s agent for
electricity service, Customer authorizes Gexa to obtain certain information that Gexa may need to provide Customer’s
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electric service, including Customer’s address, telephone number, account numbers, historical usage information, and
historical payment information from Customer’s TDSP, and Customer further authorizes its TDSP to release that
information to Gexa.
4.2 Deposits and Other Security. A Party (the “Requesting Party”) may require the other Party (the “Providing
Party”) to provide a deposit (or additional deposit if an initial deposit was also required), letter of credit, or other form of
credit assurance reasonably acceptable to the Requesting Party (collectively, “Performance Assurance”) during the
Term of this Agreement if: (i) the Requesting Party determines in its reasonable discretion that there has been a material
adverse change in the Providing Party’s or its guarantor’s (if applicable) credit status or financial condition (which, if
applicable, will mean that its credit or bond rating has dropped lower than BBB- by Standard & Poor’s Rating Group or
Baa3 by Moody’s Investor Services or ceases to be rated by either of these agencies); or (ii) Customer has been
delinquent in paying the electric bill by more than seven days more than twice during the past twelve months. Any
Performance Assurance, less any outstanding balance owed by Providing Party to the Requesting Party, will be returned
to the Providing Party once the Providing Party’s or its guarantor’s (if applicable) credit or financial condition becomes
satisfactory or, if applicable, to a credit or bond rating of BBB- or Baa3 or higher, whichever occurs earlier; or, if the
Performance Assurance relates to delinquent payments, the Providing Party has paid all outstanding balances and has
made all payments within the dates set forth in this Agreement for a period of six consecutive months.
SECTION 5: EARLY TERMINATION; DAMAGES
5.1 Cancellation by Customer for Insufficient Appropriations. If, during Customer’s annual appropriations
determination, the applicable governmental authorities do not allocate sufficient funds to allow Customer to continue to
perform its obligations under this Agreement (an “Appropriations Failure”), then Customer or Gexa shall have the right
to terminate this Agreement in full or as to any affected ESI ID upon 30 days advance written notice effective at the end
of the period for which appropriations are made; provided, that if appropriations are subsequently allocated for electricity
for the ESI IDs covered by this Agreement, then the termination may be revoked at Gexa’s option and those
appropriations shall continue to apply to this Agreement and shall not be used for an electricity supply agreement with
another REP. Upon a termination of this Agreement for Appropriations Failure, in full or as to any ESI ID(s), Customer
shall pay all amounts due Gexa under this Agreement, including the Customer Early Termination Damages.
5.2 Customer Early Termination Damages. Except in connection with the closure of a facility associated with an
ESI ID pursuant to Section 1.4, in connection with a Force Majeure Event, or as otherwise provided or excused in this
Agreement, if Customer cancels this Agreement before the end of the Term and refuses to accept electric supply
delivery from Gexa for any ESI ID(s), Gexa may charge Customer early termination damages equal to the sum of (a)
the Retail Termination Payment, (b) the QSE Services Termination Payment, (c) the Quarterly and Annual Adjustment
Payment, and (d) the Wholesale Transaction Termination Payment, as each of these terms are defined below (the
sum total of these, the “Customer Early Termination Damages”). The “Retail Termination Payment” shall equal the
product of (a) the Expected Usage for each ESI ID subject to Customer’s cancelation or refusal of electric supply
delivery (“Customer Terminated Usage”) multiplied by (b) the sum of (i) the Aggregator Fee and (ii) the REP Services
Fee specified in the REP Services Agreement. The “QSE Services Termination Payment” shall equal the product of
(a) the Customer Terminated Usage grossed up for losses multiplied by (b) the QSE Services Fee, as defined in the
PSA. The “Quarterly and Annual Adjustment Payment” shall be calculated by the Energy Manager in accordance
with the PSA, and shall include any Quarterly and Annual Adjustment amounts for electricity provided to the Customer
under this Agreement prior to the termination of this Agreement, which have not yet been charged or credited to
Customer, as appropriate. For avoidance of doubt, the Quarterly and Annual Adjustment Payment may be either a
charge or a credit to Customer, as calculated in accordance with the PSA. If the Customer Early Termination
Damages are charged due to an Event of Default by Customer, then the Customer Early Termination Damages will
also include Gexa’s reasonable costs relating to the determination and collection of Customer Early Termination
Damages, including attorney and consultant fees incurred. The provisions in Section 3 related to Billing and Payment
apply to the billing, due date, and collection of Customer Early Termination Damages. Customer agrees that
Customer Early Termination Damages are a reasonable estimate of the damages due Gexa for failure to accept
electric supply, and are not punitive in nature.
5.3 Termination for Wholesale Supply Failure. If, during the Term, the Wholesale Transactions are terminated
as a result of a default by the Energy Manager (“Wholesale Supply Failure”), then this Agreement will also terminate
effective on the date the Wholesale Agreement terminates. In the event of a termination for Wholesale Supply Failure,
Gexa shall pay Customer a Wholesale Termination Payment if required by Section 5.5.
5.4 Gexa Early Termination Damages. Except for a Wholesale Supply Failure, a Force Majeure Event, or as
otherwise provided or excused in this Agreement, if Gexa cancels this Agreement and refuses to provide electric supply
delivery to Customer for any or all ESI ID(s), Customer shall have the right to charge Gexa an early termination penalty
equal to the amount determined as follows: the product of (i) the Expected Usage for each ESI ID subject to Gexa’s
cancellation or refusal of electric supply delivery (“Gexa Terminated Usage”) multiplied by (ii) the REP Services Fee
specified in the REP Services Agreement (that result the “Gexa Early Termination Damages”). If the Gexa Early
Termination Damages are charged due to an Event of Default by Gexa, then the Gexa Early Termination Damages will
also include Customer’s reasonable costs relating to the determination and collection of Gexa Early Termination
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Damages, including attorney and consultant fees incurred. Gexa agrees the Gexa Early Termination Damages are a
reasonable estimate of the damages due Customer for failure to deliver electric supply, and are not punitive in nature.
5.5 Wholesale Transaction Termination Payment. If the Wholesale Transactions are terminated then Gexa shall
calculate the portion of the termination payment paid under each Wholesale Transaction attributable to Customer’s load.
The termination payment under each Wholesale Transaction shall be calculated by subtracting the Wholesale Supplier’s
actual cost for the portion of the Wholesale Transaction still outstanding for the remainder of the Term from the current
market value of comparable electric energy futures contracts. Energy Manager, in its sole discretion, shall determine
the current market value of a comparable electricity futures contract within three (3) business days of the termination of
a Wholesale Transaction, and shall be either (i) the value of the Wholesale Transaction actually sold to a third-party
market participant or (ii) a third-party market quote for a comparable electricity energy future contracts. Energy Manager
shall sum Customer’s prorata share of each termination payment for each Wholesale Transaction attributable to
Customer’s Load to determine a total Wholesale Transaction Termination Payment under this Agreement (the
“Wholesale Transaction Termination Payment”). Customer or Gexa shall pay the Wholesale Transaction Termination
Payment to the other, as appropriate, in the manner described below and without regard to who is a defaulting party. If
the Wholesale Transaction Termination Payment is negative, Customer shall pay Gexa the Wholesale Transaction
Termination Payment. If the Wholesale Transaction Termination Payment is positive, Gexa shall pay Customer the
Wholesale Transaction Termination Payment. To the extent a termination payment due from Gexa to the Energy
Manager is adjusted in Gexa’s account to reflect the full benefit of TCAP transacting with a replacement REP, Gexa shall
make corresponding adjustments to the Wholesale Transaction Termination Payment on a pro-rata basis. Gexa shall
remit a Wholesale Transaction Termination Payment due Customer, within 30 days of Gexa receiving the payment from
the Energy Manager. Customer shall remit a Wholesale Transaction Termination Payment due Gexa within 30 days of
Gexa’s invoice. Gexa shall use commercially reasonable efforts to collect Termination Payments from the Energy
Manager that include amounts due Customer.
SECTION 6: NOTICES AND PAYMENT
6.1 General Notice. Except as otherwise required by Applicable Law, all notices are deemed duly delivered if hand
delivered or sent by United States, prepaid first class mail, facsimile, or by overnight delivery service. Notice by facsimile
or hand delivery is effective on the day actually received, notice by overnight United States mail or courier is effective on
the next business day after it is sent, and notice by U.S. Mail is effective on the second day after it is sent. The Parties
shall send notices to the addresses below or any other address one Party provides to the other in writing:
a. If to Customer (type customer address below):
Town of Trophy Club
1 Trophy Wood Dr
Trophy Club, Texas 76262
b. If to Gexa:
Gexa Energy, LP
20455 State Highway 249, Suite 200
Houston, Texas 77070
6.2 Payments. The Parties shall send payments to the addresses below or any other address one Party provides
to the other in writing:
a. If to Customer (type customer address below):
Town of Trophy Club
1 Trophy Wood Dr
Trophy Club, Texas 76262
b. If to Gexa:
Gexa Energy, LP
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6 ELGCTXTCAPCESAEXTEND040920
20455 State Highway 249, Suite 200
Houston, Texas 77070
SECTION 7: DEFINITIONS
7.1 Definitions. In addition to terms defined elsewhere in this Agreement, when used with initial capitalization,
whether singular or plural, capitalized terms have the meanings set forth in this Section 7.1. All other capitalized terms
not otherwise defined shall have the meanings given them in the following documents, with any conflicting definitions
contained in those documents applied in the following order: PURA, the PUCT Substantive Rules, and the ERCOT
Protocols.
1. “Actual Usage” means the actual amount of electric energy (in kWh) used at the ESI ID(s) as determined by
the TDSP.
2. “Delivery Charges” means those charges or credits from the TDSP pursuant to its tariff, including, but not
limited to: Transmission and Distribution Charges, System Benefit Fund Charge, Nuclear Decommissioning Charge,
Competitive Transition Charge, Standard Customer Metering Charge, Customer Charge, Merger Savings and Rate
Reduction Credit, Excess Mitigation Credit and Utility Imposed Reactive Power Charges.
3. “EEI Master Agreement” mean an EEI Master Agreement between Gexa and the Energy Manager governing
the Wholesale Transactions entered into by the Energy Manager in accordance with Section 2.1 and transferred by the
Energy Manager to Gexa.
4. “Effective Date” means the date of the first meter reading of an ESI ID provided to Gexa by the TDSP after
the TDSP and ERCOT shall have timely performed any required enrollment and cancellation procedures necessary to
switch Customer’s REP to such ESI ID to Gexa.
5. “Electricity Related Charges” means, unless noted otherwise: Ancillary Services Charge, Congestion,
ERCOT Administrative Fee, Delivery Loss Charge, Transmission Loss Charge, Renewable Energy Credit Charge,
Residential Energy Credit Charge, Unaccounted For Energy Charge, Qualified Scheduling Entity Charge, Imbalance
Settlement Charge.
6. Energy Manager” means the wholesale market participant designated by TCAP to perform the services
described in the PSA.
7. “Energy Price(s)” means the rates per unit of measure specified in Section 2.1 and includes all Electricity
Related Charges.
8. “ERCOT” means the Electric Reliability Council of Texas.
9. “ERCOT Protocols” means the document adopted, published, and amended from time to time by ERCOT,
and initially approved by the PUCT, to govern electric transactions in the ERCOT Region, including any attachments or
exhibits referenced in the document, that contains the scheduling, operating, planning, reliability, and settlement
policies, rules, guidelines, procedures, standards, and criteria of ERCOT, or any successor document thereto.
10. “ESI ID(s)” means the Electric Service Identifiers for the property service addresses identified on Attachment B
to this Agreement or if Customer is an existing Gexa customer then the list of service addresses currently served by
Gexa, as such list may be modified from time to time as provided in Section 1.4.
11. “Expected Usage” means either the amount stated in Attachment B calculated for the remaining Term, or if no
amounts are stated or Customer is an existing Gexa customer then the average actual monthly Customer energy
usage from the comparable month from the previous year (or if an average cannot be computed due to limited service
by Gexa or other circumstances, an average monthly usage as is reasonably determined by Gexa) times the number of
months remaining in the Term as outlined in Section 1.4.
12. “kWh” means kilowatt hour.
13. “LMP” or “Locational Marginal Price” means the price calculated for the applicable trading hub pursuant to
the ERCOT Protocols.
14. “Market Rate” means 135% of the load-weighted average of the hourly LMPs at the corresponding load zone,
as determined for any delivery period.
15. “Nodal Market” means the implementation of wholesale market design by ERCOT with locational marginal
pricing for resources.
16. “Nodal Congestion” means the positive difference in price between the real-time settlement point price as
determined by ERCOT for the trading hub and the real-time settlement point price as determined by ERCOT for the
load zone associated with the customer Facilities.
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17. “Non-Recurring Charges” means any charges imposed by the TDSP or other third parties on a non-recurring
basis for services, repairs or additional equipment needed for Customer’s electric service.
18. “PUCT” means Public Utility Commission of Texas.
19. “Project Settlement Payment” means the Project Settlement Payment as defined in the Project Addendum,
attached as Schedule I to this Agreement.
20. “QSE Services Fee” means the fee owed from Customer to Gexa, and remitted from Gexa to Energy
Manager, for QSE Services performed by Energy Manager for the Term, as mutually agreed between TCAP and
Energy Manager, the Customer having authorized TCAP to negotiate such fee on behalf of Customer in the PSA. The
QSE Services Fee shall be included in the Energy Price for the Term.
21. “REP Services Agreement” means the REP Services Agreement currently in effect during the Term, as
amended from time to time, between Gexa and TCAP.
22. “REP Services Fee” means the fee owed from Customer to Gexa, for REP services rendered during the
Term, as mutually agreed between TCAP and Gexa, the Customer having authorized TCAP to negotiate such fee on
behalf of Customer in the PSA. The REP Services Fee shall be included in the Energy Price for the Term.
23. “Taxes” means all taxes, assessments, levies, duties, charges, fees and withholdings of any kind levied by a
duly-constituted taxing authority and all penalties, fines, and additions to tax, and interest thereon that are directly
related to the services provided under this Agreement, but does not include the System Benefit Fund fee and fees and
charges imposed by ERCOT. By way of example only, Taxes includes: Sales Tax, Miscellaneous Gross Receipts Tax,
PUCT Assessment Fees and Franchise Fees.
24. “TCAP” means Texas Coalition for Affordable Power, an aggregation pool of governmental and other entities
organized and administered by TCAP of which Customer is a member for the ESI IDs.
25. “TDSP” or “Transmission and Distribution Service Provider” means an entity regulated by the State of
Texas, which transmits or distributes electric energy.
“
Attachments:
Attachment A Terms and Conditions of Service
Attachment B (for new TCAP Customers only) Offer Sheet (ESI ID list and Expected Start Date)
CUSTOMER (type Customer name in field below):
Town of Trophy Club, Texas
GEXA:
Gexa Energy, LP, By its General Partner Gexa
Energy GP, LLC
By:
By:
Printed: Printed:
Title: Title:
Date: Date:
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A-1 ELGCTXTCAPCESATERMA040920
Terms and Conditions of Service
Attachment A
These Terms and Conditions of Service form an integral part of the Commercial Electricity Service Agreement between Customer
and Gexa. In addition to the terms defined elsewhere in this Agreement, when used with initial capitalization, whether singular or plural,
capitalized terms have the meanings set forth in Section 7.1 of this Agreement. Customer should thoroughly review the entire Agreement,
including these Terms and Conditions of Service, before executing this Agreement.
A. REPRESENTATIONS AND WARRANTIES
A.1 Customer’s Representations and Warranties. As a material inducement to entering into this Agreement, Customer represents
and warrants to Gexa as follows: (a) it is a duly organized entity and is in good standing under the laws of Texas; (b) the execution and
delivery of the Agreement are within its powers, have been duly authorized by all necessary action, and do not violate the terms or
conditions of contracts it is party to or laws applicable to it; (c) performance of this Agreement will be duly authorized by all necessary
action and will not violate the terms or conditions of contracts it is party to; (d) as of the date sales of electricity by Gexa to Customer
under the Agreement start, Customer will have all regulatory authorizations necessary for it to legally perform its operations and such
performance will not violate the terms or conditions of contracts it is party to or laws applicable to it; (e) this Agreement is a legal, valid,
and binding obligation of Customer enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization,
and other laws affecting creditor's rights generally, and with regard to equitable remedies, subject to the discretion of the court before
which proceedings to obtain the same may be pending; (f) there are no bankruptcy, insolvency, reorganization, receivership, or other
similar proceedings pending or being contemplated by it, or to its knowledge threatened against it; (g) there are no suits, proceedings,
judgments, rulings, or orders by or before any court or any government authority that could materially adversely affect its ability to perform
the Agreement; and (h) as of the Effective Date and throughout the Term, there is no other contract for the purchase of electricity by
Customer for the ESI ID(s), or, if such a contract presently exists, that it will terminate prior to delivery under this Agreement.
A.2 Gexa’s Representations and Warranties. As a material inducement to entering into this Agreement, Gexa represents and
warrants to Customer as follows: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its
formation and is qualified to conduct its business in those jurisdictions necessary to perform the Agreement; (b) the execution and delivery
of the Agreement are within its powers, have been duly authorized by all necessary action, and do not violate the terms or conditions of
its governing documents or contracts it is party to or any laws applicable to it; (c) performance of the Agreement will be duly authorized
by all necessary action and will not violate the terms or conditions of its governing documents or contracts it is party to; (d) as of the date
sales of electricity by Gexa to Customer under the Agreement start, Gexa will have all regulatory authorizations necessary for it to legally
perform its operations and such performance will not violate the terms or conditions of its governing documents, contracts it is party to,
or laws applicable to it; and (e) the Agreement constitutes a legal, valid, and binding obligation of Gexa enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, reorganization, and other laws affecting creditor's rights generally, and with
regard to equitable remedies, subject to the discretion of the court before which proceedings to obtain the same may be pending.
A.3 Forward Contract. (i) This Agreement constitutes a forward contract within the meaning of the United States Bankruptcy Code
("Code"); (ii) Gexa is a forward contract merchant; and (iii) either Party is entitled to the rights under, and protections afforded by, the
Code.
B. DISCLAIMERS OF WARRANTIES; LIMITATION OF LIABILITIES
B.1 LIMITATIONS OF LIABILITY. LIABILITIES NOT EXCUSED BY REASON OF FORCE MAJEURE OR AS OTHERWISE
PROVIDED, ARE LIMITED TO DIRECT ACTUAL DAMAGES. GEXA IS NOT LIABLE TO CUSTOMER FOR CONSEQUENTIAL,
INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES OR LOSS OF REVENUES OR PROFIT. THESE LIMITATIONS
APPLY WITHOUT REGARD TO THE CAUSE OF ANY LIABILITY OR DAMAGE. EXCEPT FOR (a) THE GEXA EARLY TERMINATION
DAMAGES DUE IF GEXA DEFAULTS, (b) THE CUSTOMER EARLY TERMINATION DAMAGES DUE IF CUSTOMER DEFAULTS,
AND (c) THE WHOLESALE TRANSACTION TERMINATION PAYMENT, THE LIABILITY OF EITHER PARTY TO THE OTHER FOR
ANY OBLIGATIONS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF ALL DOLLARS PAID BY
CUSTOMER TO GEXA (IF CUSTOMER) OR RECEIVED BY GEXA (IF GEXA) PURSUANT TO THIS AGREEMENT. THERE ARE NO
THIRD PARTY BENEFICIARIES TO THIS AGREEMENT.
B.2 Duty to Mitigate. Each Party shall mitigate damages and use commercially reasonable efforts to minimize any damages it may
incur as a result of the other Party's performance or non-performance.
B.3 WAIVER OF CUSTOMER PROTECTION RULES AND CONSUMER RIGHTS. THE PARTIES FURTHER ACKNOWLEDGE
THAT THE CUSTOMER PROTECTION RULES ADOPTED BY THE PUBLIC UTILITY COMMISSION (AS CONTAINED IN ITS
SUBSTANTIVE RULES 25.471 ET SEQ.) ("CUSTOMER PROTECTION RULES") THAT PERTAIN TO RETAIL ELECTRIC
SERVICE RELATED TO RESCISSION RIGHTS, CUSTOMER DISCLOSURES, DELIVERY OF CUSTOMER
CONTRACTS TO CUSTOMERS, RECORDKEEPING, INTEREST PAID ON DEPOSITS AND CUSTOMER NOTICES DO
NOT APPLY TO THIS AGREEMENT. EXCEPT AS SET FORTH IN THIS SECTION, CUSTOMER EXPRESSLY WAIVES THE
CUSTOMER PROTECTION RULES THAT PERTAIN TO RETAIL ELECTRIC SERVICE RELATED TO RESCISSION RIGHTS,
CUSTOMER DISCLOSURES, DELIVERY OF CUSTOMER CONTRACTS TO CUSTOMERS, RECORDKEEPING,
INTEREST PAID ON DEPOSITS AND CUSTOMER NOTICES TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW.
CUSTOMER FURTHER WAIVES ITS RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES--CONSUMER
PROTECTION ACT, SECTION 17.41, ET. SEQ., BUSINESS & COMMERCE CODE, A LAW THAT GIVES CONSUMERS
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SPECIAL RIGHTS AND PROTECTIONS. CUSTOMER REPRESENTS AND WARRANTS TO GEXA THAT: (a)
CUSTOMER IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION IN RELATION TO GEXA; (b)
CUSTOMER IS REPRESENTED BY LEGAL COUNSEL THAT WAS NEITHER DIRECTLY NOR INDIRECTLY
IDENTIFIED, SUGGESTED OR SELECTED BY GEXA; AND (c) CUSTOMER VOLUNTARILY CONSENTS TO THIS
WAIVER AFTER CONSULTATION WITH ITS LEGAL COUNSEL.
B.4 UCC/Disclaimer of Warranties. The electricity delivered is a “good” as that term is understood in the Texas B&CC (UCC
§2.105). The Parties waive the UCC to the fullest extent allowed by law and the UCC requirements do not apply to this Agreement,
unless otherwise provided. If there is a conflict between the UCC and this Agreement, this Agreement controls. Neither Party controls
nor physically takes possession of the electric energy prior to delivery to Customer’s ESI ID(s). Therefore, neither Party is responsible to
the other for any damages associated with failure to deliver the electric energy, nor for damages it may cause prior to delivery to
Customer’s ESI ID(s). Once the electric energy is delivered to Customer’s ESI ID(s) it is deemed in possession and control of Customer.
ELECTRICITY SOLD UNDER THIS AGREEMENT WILL MEET THE QUALITY STANDARDS OF THE APPLICABLE LOCAL
DISTRIBUTION UTILITY AND WILL BE SUPPLIED FROM A VARIETY OF SOURCES. GEXA MAKES NO REPRESENTATIONS OR
WARRANTIES OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT, AND GEXA EXPRESSLY DISCLAIMS ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. GEXA EXPRESSLY NEGATES ALL OTHER REPRESENTATIONS OR WARRANTIES, WRITTEN OR
ORAL, EXPRESS OR IMPLIED, INCLUDING ANY REPRESENTATION OF WARRANTY WITH RESPECT TO CONFORMITY, TO
MODELS OR SAMPLES, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
B.5 Force Majeure. Gexa shall make commercially reasonable efforts to provide electric service, but does not guarantee a
continuous supply of electricity. Gexa does not generate electricity nor does it transmit or distribute electricity. Causes and events out
of the control of Gexa and Customer ("Force Majeure Event(s)") may result in interruptions in service or the ability to accept electricity.
If either Party is unable to perform its obligations, in whole or in part, due to a Force Majeure Event, then the obligations of the affected
Party (other than the obligation to pay any amounts owed to Gexa that relate to periods prior to the Force Majeure Event) are suspended
to the extent made necessary by such Force Majeure Event. Therefore, neither Party is liable to the other Party for damages caused by
Force Majeure Events, including acts of God, acts of, or the failure to act by, any governmental authority (including the PUCT or ERCOT
and specifically including failure by ERCOT to make Customer meter read data available), accidents, strikes, labor troubles, required
maintenance work, events of “force majeure” or “uncontrollable force” or a similar term as defined under the applicable transmission
provider’s tariff, inability to access the local distribution utility system, non-performance by the supplier or the local distribution utility,
changes in laws, rules, or regulations of any governmental authority (including the PUCT or ERCOT) that would prevent the physical
delivery of energy to Customer’s facilities, or any cause beyond such Party’s control. The Parties agree that Appropriations Failures and
Scheduling Failures are not Force Majeure Events.
C. CONFIDENTIALITY AGREEMENT
C.1 Confidentiality. Customer is a governmental body subject to public information laws, including Chapter 552 of the Texas
Government Code. If Customer recieves a valid request under applicable public information laws for information related to this
Agreement, it shall provide Gexa notice of the request including a description the information sought prior to Customer’s release of
information so that Gexa has the opportunity to determine whether such information is subject to an exception as trade secret, competitive,
comercial, or financial information. With the exception of the preceding disclosures pursuant to public infromation laws, a Party (that
party, the “Receiving Party”) shall keep confidential and not disclose any to third parties Confidential Information which is disclosed to
the Receiving Party by the other Party (that party, the “Disclosing Party”) except for disclosures to Authorized Parties or as required by
law. “Confidential Information” means information in written or other tangible form which is marked as “Confidential” when it is disclosed
to the Receiving Party, except that Confidential Information shall not include information which (i) is available to the public, (ii) becomes
available to the public other than as a result of a breach by the Receiving Party of its obligations hereunder, (iii) was known to the
Receiving Party prior to its disclosure by the Disclosing Party, or (iv) becomes known to the Receiving Party thereafter other than by
disclosure by the Disclosing Party. The provisions of this Section apply regardless of fault and survive termination, cancellation,
suspension, completion or expiration of this Agreement for a period of two (2) years. Customer authorizes Gexa to provide TCAP with
all information requested by TCAP about Customer’s account and billings. “Authorized Parties” means those officers, directors,
employees, agents, representatives and professional consultants of the Parties, and of the Parties’ affiliates, that have a need to know
the Confidential Information for the purpose of evaluating and performing this Agreement.
D. DEFAULT AND REMEDIES
D.1 Events of Default. An event of default (“Event of Default”) means: (a) the failure of Customer to make, when due, any payment
required under this Agreement for any undisputed amount if that payment is not made within fifteen (15) business days after receipt of
written notice (facsimile or electronic mail are valid forms of notice for this paragraph) from Gexa; or (b) any representation or warranty
made by a Party proves to be false or misleading in any material respect; (c) except as provided in clause (a) above or otherwise in this
section D.1, the failure of any Party to perform its obligations under this Agreement and that failure is not excused by Force Majeure and
remains uncured following 20 business days written notice of the failure; (d) the defaulting Party (i) makes an assignment or any general
arrangement for the benefit of creditors; or (ii) files a petition or otherwise commences, authorizes or acquiesces to a bankruptcy
proceeding or similar proceeding for the protection of creditors, or has such a petition filed against it and that petition is not withdrawn or
dismissed within 20 business days after filing; or (iii) otherwise becomes insolvent; or (iv) is unable to pay its debts when due; or (v) fails
to establish, maintain or extend Credit in form and in an amount acceptable to Gexa when required; or (e) the Wholesale Transaction is
terminated due to a default by Gexa under CESAs with other TCAP members or due to a default by the Energy Manager under the
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A-3 ELGCTXTCAPCESATERMA040920
Wholesale Transaction. If an Event of Default listed in subsection (d) of this Section occurs, it is deemed to have automatically occurred
prior to such event.
D.2 Remedies upon an Event of Default. If an Event of Default occurs and is continuing, upon written notice to the defaulting
Party, the non-defaulting Party may (a) commence an action to require the defaulting Party to remedy such default and specifically perform
its duties and obligations in accordance with the Agreement; (b) exercise any other rights and remedies it has at equity or at law, subject
to the Agreement’s Limitations of Liabilities; and/or (c) suspend performance; provided, however, that suspension shall not continue for
longer than ten (10) Business Days unless the non-defaulting Party has declared an early termination with proper notice. If Customer is
responsible for an Event of Default and fails to cure within ten (10) days of written notice (such additional cure period does not apply to
default for non-payment), in addition to its other remedies, Gexa may (i) terminate this Agreement; and (ii) charge Customer the Customer
Early Termination Penalty pursuant to Section 5 of this Agreement. Notwithstanding the above, Gexa shall not disconnect or order
disconnection of service to Customer unless the following events have all occurred: (1) Customer has an Event of Default for nonpayment
under Section D.1(a) above, (2) Gexa gives Customer a ten (10) day written disconnection notice; and (3) Customer does not pay all
undisputed outstanding payments owed by the end of the ten (10) day notice period. .
E. MISCELLANEOUS PROVISIONS
E.1 Disclaimer. This Agreement does not constitute, create, or otherwise recognize the existence of a joint venture, association,
partnership, or other formal business entity of any kind among the Parties and the rights and obligations of the Parties are limited to those
set forth in this Agreement.
E.2 Headings. The descriptive headings of the Articles and Sections of this Agreement are inserted for convenience only and are
not intended to affect the meaning, interpretation or construction of this Agreement.
E.3 Waiver. Except as otherwise provided, failure of a Party to comply with an obligation, covenant, agreement, or condition may
be waived by the other Party only in a writing signed by the Party granting the waiver, but that waiver does not constitute a waiver of, or
estoppel with respect to a subsequent failure of the first Party to comply with that obligation, covenant, agreement, or condition.
E.4 Assignment. Except as provided in the REP Services Agreement, Customer shall not assign this Agreement, in whole or in
part, or any of its rights or obligations purusant to the Agreement without Gexa’s prior written consent, which shall not be unreasonably
withheld. Gexa may withold consent if a proposed assignee fails to be at least as creditworthy as Customer as of the Effective Date. Gexa
may: (a) transfer, sell, pledge, encumber or assign the revenues or proceeds of this Agreement in connection with any financing or other
financial arrangement; (b) transfer or assign this Agreement to a Gexa affiliate with operating capability and financial condition
substantially similar to Gexa; (c) transfer or assign this Agreement to any person or entity succeeding to all or substantially all of the
assets of Gexa with an operating capability and financial condition substantially similar to Gexa as of the execution date of this Agreement;
and/or (d) transfer or assign this Agreement to a certified REP with an operating capability and financial condition substantially similar to
Gexa as of the execution date of this Agreement. In the case of (b), (c), or (d), any such assignee shall agree in writing to be bound by
these Terms and Conditions of Service, and upon assignment, Gexa shall have no further obligations under this Agreement. Gexa shall
not assign the Agreement to a non-affiliated entity (including its guarantor) that has a credit rating lower than BBB- without the prior
written consent of TCAP, which shall not be unreasonably withheld.
E.5 No Third-Party Beneficiaries. This Agreement does not confer any rights or remedies on any person or party other than the
Parties, their successors and permitted assigns; except that the Parties recognize that TCAP is entitled to receive the Aggegator Fee .
E.6 Severability. If a provision of this Agreement is held to be unenforceable or invalid by a court or regulatory authority of
competent jurisdiction, the validity and enforceability of the remaining provisions are unaffected by that holding, and the Parties shall, to
the extent possible, negotiate an equitable adjustment to the provisions of this Agreement in order to preserve the original intent and
purpose of this Agreement.
E.7 Entire Agreement; Amendments. This Agreement constitutes the entire understanding between the Parties, and supersedes
any and all previous understandings, oral or written, with respect to the subjects it covers. This Agreement may be amended only upon
the mutually signed, written agreement of the Parties.
E.8 Further Assurances. The Parties shall promptly execute and deliver, at the expense of the Party requesting such action, any
and all other and further instruments and documents which are reasonably requested in order to effectuate the transactions contemplated
in this Agreement.
E.9 Emergency, Outage and Wire Service. In the event of an emergency, outage or service need, Customer shall call the TDSP
for the service area of the ESI ID experiencing the emergency, outage or service need.
E.10 Customer Care. Customer may contact Gexa Customer Care if Customer has specific comments, questions, disputes, or
complaints toll free at 1-866-961-9399, Monday to Friday 7:00 a.m. – 8:00 p.m. CST and Saturday from 8:00 a.m. – 2:00 p.m.. Gexa
shall assist and cooperate with Customer regarding communications with a TDSP relating to service to any ESI ID served by Gexa under
this Agreement.
E.11 Governing Law.
a. This Agreement is governed by and construed and enforced in accordance with the laws of the State of Texas applicable
to contracts made and performed in the State of Texas, without regard to the State of Texas conflict of laws provisions.
b. All disputes between the Parties under this Agreement which are not otherwise settled will be decided by a court of
competent jurisdiction in Harris County, Texas, and the Parties submit to the jurisdiction of the courts of the State of Texas and the Federal
District Courts in Houston, Harris County, Texas. All disputes are governed under the laws of the State of Texas.
c. Subject to the provisions of E.11.a. above, this Agreement is subject to, and in the performance of their respective
obligations under this Agreement the Parties shall comply with, all applicable federal, state and local laws, regulations and requirements
(including the rules, regulations and requirements of quasigovernmental and regulatory authorities with jurisdiction over the Parties,
including ERCOT) (collectively, "Applicable Law").
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E.12 No Presumption Against Drafting. Both Parties contributed to the drafting of this Agreement. The rule of construction that
any ambiguity is construed against the party who drafted this Agreement does not apply to this Agreement.
E.13 Counterparts; Facsimile Copies. This Agreement may be executed in counterparts, all of which constitute one and the
same Agreement and each is deemed an original. A facsimile copy of either Party’s signature is considered an original for all purposes,
and each Party shall provide its original signature upon request.
E.15 Offer for Electric Service; Refusal of Service. This Agreement, including these Terms and Conditions of Service, constitute
an offer for electric service, and is expressly conditioned on acceptance of this Agreement by Gexa. Gexa may refuse to provide electric
service to Customer subject to the requirements of Applicable Law.
Town Council Meeting Page 34 of 48 May 26, 2020
Page 1 of 2 RES. 2020-10
TOWN OF TROPHY CLUB, TEXAS
RESOLUTION NO. 2020-10
RESOLUTION OF THE TOWN OF TROPHY CLUB, TEXAS
ADOPTING TEXAS COALITION FOR AFFORDABLE
POWER, INC. (TCAP) PROFESSIONAL SERVICES
AGREEMENT AND GEXA ENERGY’S COMMERCIAL
ELECTRIC SERVICE AGREEMENT FOR POWER TO BE
PROVIDED ON AND AFTER JANUARY 1, 2023.
WHEREAS, the Town of Trophy Club is a member of TCAP, a non-profit, political
subdivision corporation of the State of Texas; and
WHEREAS, TCAP has previously arranged for the City to purchase power
through Gexa Energy with a contract set to expire December 31, 2022; and
WHEREAS, TCAP has designed a new procurement strategy that will involve
TCAP initially committing to purchase power two years in advance of delivery on behalf
of its members who desire participation in a Strategic Hedging Program (“SHP”) that
will involve a series of monthly competitive auctions; and
WHEREAS, TCAP has prepared a Professional Services Agreement (“PSA”),
attached as Exhibit A, that, in addition to enumerating services and benefits to
members of TCAP, provides TCAP with specific authority to procure power in the
wholesale market on behalf of members who choose to participate in the SHP; and
WHEREAS, approval of the PSA is a necessary, but not sufficient, prerequisite
to participation in the SHP; and
WHEREAS, the PSA is a relational contract that defines services provided by
TCAP to members regardless of whether a member decides to commit to the SHP; and
WHEREAS, the industry-standard retail contract is a Commercial Electric Service
Agreement (“CESA”) offered by a Retail Electric Provider (“REP”); and
WHEREAS, TCAP has negotiated modifications to the current CESA between the
Town of Trophy Club and Gexa Energy to reflect participation in the SHP; and
WHEREAS, the CESA that will facilitate participation in the SHP effective for
power deliveries in and beyond 2023 (attached as Exhibit B) will need to be approved
and signed prior to October 1, 2020; and
WHEREAS, the Town of Trophy Club desires to participate in the SHP.
Town Council Meeting Page 35 of 48 May 26, 2020
Page 1 of 2 RES. 2020-10
THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF TROPHY CLUB, TEXAS:
SECTION 1. That the Town Manager is authorized to sign Exhibit A, TCAP’s
Professional Services Agreement, and Exhibit B, Gexa Energy’s CESA, and send the
agreements to TCAP, 15455 Dallas Parkway, Suite 600, Addison, TX 75001.
PASSED AND APPROVED this 26th day of May 2020.
ATTEST:
C. Nick Sanders, Mayor
Leticia Vacek, TRMC/CMC/MMC Town Secretary/RMO
APPROVED AS TO FORM:
______________________________
J. David Dodd, III, Town Attorney
Town Council Meeting Page 36 of 48 May 26, 2020
1 Trophy Wood Drive
Trophy Club, Texas 76262Town of Trophy Club
Legislation Details (With Text)
File #: Version:12020-153-T Name:
Status:Type:Agenda Item Draft
File created:In control:5/19/2020 Town Council
On agenda:Final action:5/26/2020
Title:Take appropriate action regarding the repainting of the Splash Pad surface, not to exceed the amount
of $31,159 (S. Norwood).
Attachments:Staff Report - Repainting of Splash Pad 5-26-2020.pdf
CertaPro Painters -Trophy Club Splash Pads May 2020.pdf
Action ByDate Action ResultVer.
Take appropriate action regarding the repainting of the Splash Pad surface, not to exceed the amount of $31,159 (S.
Norwood).
Town Council Meeting Page 37 of 48 May 26, 2020
Page 1 of 2
To: Mayor and Town Council
From: Tony Jaramillo, Director of Parks and Recreation
CC: Steve Norwood, Town Manager
Leticia Vacek, Town Secretary/RMO
Re: Repainting splash pad surface
Town Council Meeting, May 26, 2020
Agenda Item:
Consider and take appropriate action to approve repainting the splash pad surface.
(S.Norwood)
Strategic Link:
Nature and Beautification - Improve the aesthetic and recreational value of the Town.
Background and Explanation:
On February 26, 2019, staff requested Council approval for the splash pad to be repainted as the
existing paint had reached the end of its useful life. Consequently, the paint project was identified
and approved in the Fiscal Year 18-19 budget. After Council approved the request, staff
scheduled the selected contractor at that time and the splash pad paint project was completed
in April, 2019. The total cost for re-painting the splash pad surface was the amount of $21,975.43.
After the commencement of the pool season, staff noticed the paint begin to discolor, chip and
blister in various places. The contractor was contacted immediately and was asked to rectify the
problem. After numerous visits from the contractor and throughout the season, it was apparent
the contractor had performed substandard work. After further investigation it was later
discovered by staff that the contractor had applied an inferior paint product which caused it to
discolor, chip and blister prematurely. The paint utilized by the contractor was not intended to
be submersed. The bid process clearly defined the scope of work and the paint product
requirements.
Staff met with the contractor before the end of the pool season and requested for him to re-
paint the entire splash pad to which he agreed. Throughout the off-season staff kept in
communication with the contractor, however, the contractor informed staff that he was not
going to be able to re-paint the splash pad however; he would provide the town with a 100
percent refund.
Town Council Meeting Page 38 of 48 May 26, 2020
Page 2 of 2
In an attempt to continue providing an aesthetically pleasing and safe splash pad facility, staff
obtained three quotes to re-paint the splash pad surface and requesting the approval of awarding
CertaPro Painters with a contract of $31,259.00 to complete the splash pad project. CertaPro
Painters are accredited through the Better Business Bureau with an A+ rating. Additionally staff
contacted two references in which both provided positive feedback regarding CertaPro’s work
performance. The difference between the new amount requested and the amount being
refunded is $9,283.57. CertaPro Painters proposal includes town staff removing the existing paint
in an attempt to save $2,364.00.
Between labor and delivery of paint this project may take up to two weeks barring inclement
weather. Our goal is to have the splash pad completed by the tentative date which is June 13.
Staff is working closely with CertaPro Painters and the paint manufacturer to ensure the project
is well executed.
Financial Considerations:
The initial cost of re-painting the splash pad surface was $21,089.67. The amount requested to
re-paint the splash pad surface by a different contractor is $31,159.00 for a difference of
$9,283.57.
Legal Review:
Not applicable
Board/Commission/ or Committee Recommendation:
Not applicable.
Staff Recommendation
Staff recommends Council approve repainting the splash pad surface
Attachments:
• Quote to repaint the splash pad surface
• Purchase Requisition Form
Council Approval:
_____________________________
Mayor Nick Sanders, or designee
Town Council Meeting Page 39 of 48 May 26, 2020
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Town Council Meeting Page 44 of 48 May 26, 2020
1 Trophy Wood Drive
Trophy Club, Texas 76262Town of Trophy Club
Legislation Details (With Text)
File #: Version:12020-150-T Name:
Status:Type:Agenda Item Regular Session
File created:In control:5/18/2020 Town Council
On agenda:Final action:5/26/2020
Title:Take appropriate action regarding Entryway Monumentation Bids (S. Norwood).
Attachments:
Action ByDate Action ResultVer.
Take appropriate action regarding Entryway Monumentation Bids (S. Norwood).
Town Council Meeting Page 45 of 48 May 26, 2020
1 Trophy Wood Drive
Trophy Club, Texas 76262Town of Trophy Club
Legislation Details (With Text)
File #: Version:12020-154-T Name:
Status:Type:Agenda Item Draft
File created:In control:5/20/2020 Town Council
On agenda:Final action:5/26/2020
Title:Take appropriate action on holding the Fourth of July Fireworks Display (S. Norwood).
Attachments:Fourth of July Information.pdf
Action ByDate Action ResultVer.
Take appropriate action on holding the Fourth of July Fireworks Display (S. Norwood).
Town Council Meeting Page 46 of 48 May 26, 2020
To: Mayor and Council Member
From: Steve Norwood, Town Manager
Date: May 22, 2020
Subject: Fourth of July Fireworks Event
In regards to our discussion Tuesday night regarding the decision to have the fireworks show
on July 4th, or to cancel the show, Town Staff has met very quickly over the past two days and
have offered up some concerns/issues/challenges, etc. should we pursue holding the fireworks
show….only. This list is not meant to be all inclusive, but rather a quick snapshot as to what
we could be looking at, however, if council does want us to proceed we should have enough
time to address as many of the issues as possible. However, there are several significant
unknowns.
UNKNOWNS:
The anticipated crowd is a huge concern. With neighboring cities cancelling their fireworks, we
just don’t have an idea as to the number of people that may show up. The areas cities that
have cancelled are: Roanoke, Southlake, Haslet, Keller, Flower Mound, Grapevine,
Bedford…not sure about Westlake, or if they even have a show. Past history indicates that 4 to
5,000 people show up for our event. With all the other cities cancelling we just do not know
what to estimate.
Will we have enough staff to cover the event….crowd control, social distancing, will other cities
send their public safety personnel and potentially expose them to a challenging environment?
Also, will people start parking all over side streets and potentially hampering public safety
response?
With people being out looking for parking…..will crowds be out there for 4 or 5 hours…..do we
need water stations, or vendors selling water?
KNOWNS:
Potential exposure to employees and citizens. Mass gatherings in excess of 250 are not
allowed.
All hands on deck, and will most likely utilize the Police Explorers for trash and other duties, and
not sure that will even be enough. Port-a-Potty rentals will be necessary due to the number of
hours people will be out in the park area/parking lots, side streets, etc. Staffing cost will
likely be $10,000+
Town Council Meeting Page 47 of 48 May 26, 2020
INTANGIBLES:
Could we do something along the lines of a virtual show that features patriotic music, fireworks
footage, comments from Mayor and Council, military personnel…current and past, etc.?
I know TC and surrounding cities always try to work together and check on what each of us are
doing, or how we are handling a particular situation. If we do a show, does that create a divide
or any resentment, when the other cities have cancelled their show?
We currently have the entire July 4th event funded from HOT funds. If it’s just a fireworks
show, with no other festivities, is it appropriate to continue to fund from HOT, or is that a
General Fund expense?
Please let me know if there are any issues you may want to discuss.
Town Council Meeting Page 48 of 48 May 26, 2020