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HomeMy WebLinkAbout11-9396CIO-OFFICE 9 jolt oEO 2? ?? ?,? RLaN©cau? IN THE COURT OF COMMON PLEA&%5wz wb COUNTY, PENNSYLVANIA BENCHMARK ENERGY ARBITRATION SOLUTIONS, INC,, CASE NO.: e3 91 ? 1 V I l Plaintiff, VS. HAMPDEN TOWNSHIP, COMPLAINT IN CIVIL ACTION Defendant. Filed on behalf of Plaintiff: BENCHMARK ENERGY SOLUTIONS, INC. Counsel of Record for this Party: Steven Petrikis, Esq. Pa. I.D. No. 34426 Rachel D. Felton, Esq. Pa. I.D. No. 205929 METZ LEWIS BRODMAN MUST O'KEEFE, LLC 11 Stanwix Street, 18th Floor Pittsburgh, PA 15222 Phone: (412) 918-1100 Fax: (412) 918-1199 (` Cm %V" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BENCHMARK ENERGY ) ARBITRATION SOLUTIONS, INC., ) Plaintiff, VS. HAMPDEN TOWNSHIP, Defendant. CASE NO. NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within TWENTY (20) days of this complaint and notice are served, by etitering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 34 S. Bedford Street Carlisle, Pennsylvania 17013 717-249-3166 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BENCHMARK ENERGY SOLUTIONS, INC. Plaintiff, vs. HAMPDEN TOWNSHIP, Defendant. ARBITRATION CASE NO. COMPLAINT IN CIVIL ACTION Plaintiff, Benchmark Energy Solutions, Inc. ("BESI"), by its attorneys, Metz Lewis Brodman Must O'Keefe LLC, files this Complaint in Civil Action: THE PARTIES 1. Plaintiff, BESI, is a Pennsylvania Corporation with an office at 1500 Cochran Road, Suite 1003, Pittsburgh, Pennsylvania 15243. 2. Defendant, Hampden Township, is a municipality with an office located at 230 S. Sporting Hill Road, Mechanicsburg, Pennsylvania 17050. JURISDICTION AND VENUE 3. This court has original jurisdiction of this matter pursuant to 42 Pa.C.S. § 931. 4. Venue is proper in this Court pursuant to Rules 1006 and 2103(b) of the Pennsylvania Rules of Civil Procedure. FACTS 5. BESI is an energy consulting firm and is in the business of advising and assisting government entities and businesses in the collective purchase of energy supplies and utility services. 3 T 6. On December) 3, 1999, the City of Harrisburg ("City") and other local government agencies entered into an Amended and Restated Intergovernmental Cooperation Agreement ("IGCA"). A true and correct copy of the IGCA is attached hereto as Exhibit A. 7. Pursuant to the IGCA, the City and other local government agencies engaged BESI to act as their energy consultant in the purchase of energy supplies and related energy management services and to advise them in the collective purchase of energy supplies and services. 8. BESI's responsibilities under the IGCA included identifying opportunities to reduce energy consumption and costs, soliciting and negotiating prices with energy suppliers and service vendors, and providing purchasing related services to effect cost reductions in the purchase of energy supplies and services. 9. Under the IGCA, Benchmark was to be paid a performance fee for its services, costs, and expenses over the life of the energy supplies and services' contracts that it negotiated on behalf of the City and the local government agencies. 10. The IGCA allowed for other local government agencies to join the IGCA at a later date by executing a Joinder Agreement. 11. On April 2, 2009, Hampden Township executed an IGCA Joinder Agreement and joined the IGCA. A true and correct copy of the IGCA Joinder Agreement is attached hereto as Exhibit B. 12. On March 1, 2009, Hampden Township executed an Agreement for Utility Information and Management Services ("MSA") with BESI. A true and correct copy of the MSA is attached hereto as ?xhibit C. 4 s 13. Under the M$, A, BESI agreed to advise Hampden Township in the collective purchase of energy supplies', and services, seek competitively priced electricity generation, and process utility bills. 14. In turn, Hampden Township agreed to pay BESI a Sponsorship and Management Fee, a fee for Monthly Billing for each Utility Account, and a Performance Fee as set forth in the Fee Schedule ("Fees") 15. The MSA had an initial term of three years and thereafter automatically renewed for one-year terms unless either party provided written notice of its intent to terminate the MSA at least sixty days in advance of a renewal date. 16. The MSA could also be terminated for cause if either party breached the MSA after being provided with written notice of the specific alleged breaches and an opportunity to cure. 17. On or about August 5, 2009, BESI and Hampden Township entered into an agreement with Seven-Utility Management Consultants, Ltd. ("SUMC") (the "SUMO Agreement") whereby SUMC was authorized to obtain offers from energy suppliers to provide electric generation services to Hampden Township. A true and correct copy of the SUMC Agreement is attached hereto as Exhibit D. 18. On or about November 9, 2009, Hampden Township entered into a Master Sales and Sales Confirmation Fuxed Price Product Agreement with Liberty Power Holdings, LLC ("Liberty Power") for the purchase and receipt of electric energy services (the "Liberty Power Contract"). A true and correct copy of the Liberty Power Contract is attached hereto as Exhibit E. 19. BESI negotiated and secured the Liberty Power Contract for Hampden Township. II 5 20. Under the Liberty Power Contract, Hampden Township was able to receive electricity generation at a rate per kilowatt hour that was substantially less than Pennsylvania Power and Light's ("PPL" ) general Tariff pricing. PPL served as the electric distribution company and was the electric utility which would have otherwise serviced Hampden Township with electric generation. 21. In December' of 2009, BESI agreed to amend the Fee Schedule under the MSA that lowered the Sponsorship and Management Fee and Performance Fee that Hampden Township was to pay to BESI for its services. The fee for Monthly Billing for each Utility Account remained the same. A true and correct copy of the Fee Schedule is attached hereto as Exhibit F. 22. Per the Fee Schedule, BESI was to be paid a Sponsorship and Management Fee of 1.8% and a Performance Fee of 21.6%. 23. The term of the Liberty Power Contract was from the first utility transfer date occurring after January 1, 2010, through the first utility transfer date occurring after December 31, 2010. 24. Upon information and belief, Hampden Township received electric generation services under the Liberty Power Contract between January of 2010 and January of 2011. 25. On or about November 5, 2010, Hampden Township sent a letter to BESI wherein Hampden Township stated that it was terminating its contract with BESI effective at the end of the Liberty Power Contract; Although Hampden Township noted a "multitude of problems," no problems were specified and no opportunity to cure was provided. A true and correct copy of the Termination Letter is attach?d hereto as Exhibit G. I I I I 6 26. From January of 2010 through December of 2010, BESI processed Hampden Township's electric bills issued by PPL, including the electric generation accounts under the Liberty Power Contract. Such processing included receiving, auditing, consolidating, and e- mailing to Hampden Township all of the electric distribution and generation bills for Hampden Township. 27. After Decemlber of 2010, BESI was unable to process Hampden Township's electric utility bills because Hampden Township stopped PPL from forwarding its electric bills to BESI and prevented BESI's'performance of certain obligations under the MSA. 28. Hampden Township stopped PPL from forwarding its electric generation bills to BESI even though it continued to receive services under the Liberty Power Contract. 29. Despite receiving services under the Liberty Power Contract and MSA, Hampden Township did not pay BESI the full amount of the Fees due to BESI between January of 2010 and January of 2011. 30. On April 14, 2011, BESI sent a letter to Hampden Township demanding the payment of $28,499.04 for the Fees due to BESI for the services which BESI performed in connection with the Liberty] Power Contract pursuant to the IGCA and MSA ("Demand Letter") A true and correct copy of the Demand Letter is attached hereto as Exhibit H. 31. Hampden Township did not respond to the Demand Letter. COUNT I: BREACH OF CONTRACT 32. BESI incorporates Paragraphs 1 through 31 as if fully set forth herein. 33. BESI and *pden Township were parties to the MSA. 34. Among othe? things, the MSA required Hampden Township to pay BESI certain Fees. III 7 35. BESI fully and completely performed its duties under the MSA. 36. Hampden Tollwvnship breached the MSA by failing to pay BESI certain Fees due under the MSA. 37. As a direct and proximate result of Hampden Township's breach of the MSA, BESI has suffered damages. WHEREFORE, Benchmark Energy Solutions, Inc., respectfully requests that judgment in excess of $28,499.04 plus continuing and additional interest, costs, and attorneys' fees be entered against Defendant Hampden Township. COUNT II UNJUST ENRICHMENT 38. BESI incorporates Paragraphs 1 through 37 as if fully set forth herein. 39. A benefit was conferred on Hampden Township by BESI, when BESI secured the Liberty Power Contract for Hampden Township and BESI processed Hampden Township's electric bills, including the electric generation bills under the Liberty Power Contract. 40. Hampden Township appreciated the benefit conferred on it by BESI as Hampden Township received monetary savings and services from BESI's work. 41. Under the circumstances, it would be inequitable for Hampden Township to accept and retain the benefits of BESI's services without payment of value. WHEREFORE, Benchmark Energy Solutions, Inc., respectfully requests that judgment in excess of $28,499.04 plus c ntinuing and additional interest, costs, and attorneys' fees be entered against Defendant Hampde Township. COUNT III ACCOUNT STATED 42. BESI incorp rates Paragraphs 1 through 41 as if fully set forth herein. I 8 43. BESI entered into the MSA with Hampden Township. 44. Through the Demand Letter, BESI informed Hampden Township that a balance of $28,499.04 remains due and owing on their account with BESI and Hampden Township never responded to the Demand Letter. WHEREFORE, Benchmark Energy Solutions, Inc., respectfully requests that judgment in excess of $28,499.04 plus continuing and additional interest, costs, and attorneys' fees be entered against Defendant Hampden Township. COUNT IV QUANTUM MERUIT 45. BESI incorporates Paragraphs 1 through 44 as if fully set forth herein 46. BESI performed services for Hampden Township by securing discounted electric generation prices for Hampden Township through the Liberty Power Contract and by processing Hampden Township's electric bills, including the electric generation bills under the Liberty Power Contract. 47. Hampden Township accepted the services of BESI. 48. BESI did not render its services gratuitously. 49. BESI is entitled to the value of the services which it performed for Hampden Township. WHEREFORE, Benchmark Energy Solutions, Inc., respectfully requests that judgment in excess of $28,499.04 plus continuing and additional interest, costs, and attorneys' fees be entered 9 against Defendant Hampden Township. Date: December 23, 2011 Respectfully submitted, METZ LEWIS BRODMAN MUST O'KEEFE LLC By: R cat 9 I (- Steven Petrikis, Esq. Pa. I.D. No. 34426 Rachel D. Felton, Esq. Pa. I.D. No. 205929 11 Stanwix Street, 18'' Floor Pittsburgh, PA 15222 (412) 918-1100 Attorneys for Plaintiff 10 AMENDED AND RESTATED INTERG. VERNMENTAL COOPERATION AGREEMENT This AMENDED AND RESTATED INTERGOVERNMENTAL COOPERATION AGREEMENT is made and entered into as of the 3rd day of December, 1999 by and among THE CITY OF HARRISBURG, a municipal corporation organized under the laws of the Commonwealth of Pennsylvania and operating pursuant to the Optional Third Class City Charter Law, Act of July 15, 1957, P.L. 901, as amended, 53 P.S. §§41101, et seq., with its principal office located at the Rev. Dr. Martin L. King, Jr., City Government Center, 10 North Second Street, Harrisburg, Pennsylvania 17101-1677 (the "City-)'l and each one and the several LOCAL GOVERNMENTS (each, an "Agency") which shall hajve joined in this Agreement by the execution and delivery of a Joinder Agreement, in the form attached hereto as *Exhibit A", as the same shali,'from time to time, be valid and in effect and not withdrawn or rescinded. WITNESSETH: WIMEAS, Federal and Commonwealth laws, now in effect, have deregulated the electric and natural gas utility industries, thereby affording Agencies the opportunity to achieve cost reductions through joint purchasing in volume; and WHEREAS, the Gay's Central Energy Office (the "CEO) has agreed to sponsor and oversee programs and retain consultant(s) for itself and the Agencies in the purchase of energy supplies and related energy manag=ion, ces including, but not limited to, electricity, natural gas, steam and liquid fuels and the transportation or other delivery, thereof, and the provision of energy resource conservation management services, products and equipment related thereto (the "Energy Supplies and Services"); and WHEREAS, the City has designated Benchmark Solutions, Inc. as the Energy Consultant (the "Energy Consultant) to advise the Agencies in the collective purchase of Energy Supplies and Services; and WHEREAS, the Intergovernmental Cooperation Act, Act of December 19,1996, P.L. 1158, No. 177, provides that twp or more local governments may jointly cooperate in the exercise or in the performance of their tive governmental functions, powers or responsibilities; and further that local governments cooperating shall enter into joint agreements as may be deemed appropriate for those purl loses, and EXHIBIT WHEREAS, it is the desire of the signatories hereto to enter into this Amended and Restated Interpvernmental Cooperation Agreement to facilitate the acquisition of Energy Supplies and Services and to delegate to the CEO certain duties for the purposes herein set forth; and' NOW, THE?,EFORE, in consideration of these premises and intending to be legally bound hereby, the parties agree as follows: Recitals The recitals to this Agreement are incorporated herein by reference and shall, for all purposes, be part'of this Agreement. 2. Particinan fg The following types of Local Governments or Political Subdivisions are deemed to be and may bwome Agencies, permitted to participate in this Agreement: counties, cities of the second Iclass, second class A and third class, boroughs, incorporated towns, townships and school districts and any other similar general purpose unit of government created by the Pennsylvania General Assembly after July 12, 1972, together with municipal authorities, redevelopment authorities, housing authorities, parking authorities and industrial development authorities. 3. Desienation?of Consultant The CEO has designated Benchmark Solutions, Inc., as an Energy Consultant to advise the Agencies in the collective purchase of Energy Supplies and Services. The Energy Consultant hall have no authority to act on behalf of the Agencies, without the prior express written approval of each Agency, or to act as an aggregator, market aggregator, broker o marketer as defined in 66 Pa. C.S. §§ 2903. 4. Services. Products and Eaaittment .-----•. The smwices produets and equipment which are the subject of this Agreement mchxk, but are not to, the following a. Electricity, natural gas, steam and liquid fuels, and the transmission, transportation and local delivery or distribution services related thereto; and b. Energy resource conservation management services, products and equipment. Duties of the gnerav Consultant The Energy Consultant shall: a. Maintain an accurate database for the facilities and the energy supplies of eaab Agency; b. As and where appropriate, identify opportunities to reduce energy consumption and costs, such as energy resource conservation measures; C. Prepare standardized forms, contracts and other documents for the bidding and purchase of Energy Supplies and Services: d. Upon the specific request of the CEO, and with the prior express written approval of each participating Agency: (1) Formulate relevant standards or specifications for the Energy Supplies and Services upon which the Agencies may receive bids; (2) Identify and develop alternative bidding procedures and options related to such Energy Supplies and Services; (3) Review the bids submitted and make recommendations to assist ?he Agencies in determining the lowest responsible bidder of the Energy Supplies and Services when competitive bidding is required (4) Solicit quotations and negotiate prices with Energy Suppliers and Service vendors when competitive bidding is not required; e. Notify all participating Agencies of the receipt of valid bids and/or solicited or negotiated pricing; f Assist the CEO's financial advisors with the structure of any Financing, as1set forth in §8 hereof for the purchase of Energy Supplies and Services and tie tutting of any financial benefit for the Agencies; and g. Provide such other bidding and pur basing related services as necessary to e€fect cost reductions in the purchase of Energy Supplies and Services and t otherwise accomplish the goals of this Agreement. 6. Enersv PmOsal Upon receipt f Bids or negotiated prices for Energy Supplies and Serrc?itces, the Energy Consultant w 11 submit as Energy Proposal and the relevant Energy Contract to each participating A envy for its review. The Energy Proposal will contain (i) the 3 'I I recommended opport?nities to reduce energy consumption and costs through an Energy Contract, (ii) a summary and analysis of the bids or quotes received taking into consideration the sayings, after deducting reasonable expenses and the costs of implementing the bids or quotes, (iii) a recommendation from the Energy Consultant on the most responsible id or quote which results in the greatest savings to the Agencies, (iv) all relevant bus' ss terms pertaining to the Energy Contract recommended, and (v) the time frame for n cation and written acceptance to the CEO and Energy Consultant of the Energy Con and Energy Proposal. General Proy,Isions a_ The Eergy Consultant shall neither issue a bid, solicit quotations or negotiate for Energy Supplies and Services or execute any contract, agreement or other document on behalf of the Agencies without the prior express written consent of the CEO and the Agencies who wish to participate in such bid, solicitation or negotiation; b. The Energy Consultant shall have no authority on. behalf of any of the Agencies; c. Each gency shall retain its individual power and authority to accept or reject any s) presented by the CEO for the purchase of Energy Supplies and Services, as it shall etccmine, and to execute and deliver all contracts, agreements or other documents in c6n? therewith; CL No Agcy shalt -be liable for any cost, fee or expense which is not specifically set forth I in the Energy Proposals or Energy Contracts as disclosed by the Energy Consultant and/or the CEO; and e. No Aoncy may negotiate, bid for or contract with any supplier or vendor for Energy Supplies Services for a period of 180 days following the date upon which said Agency has agreed to participate and be included in the solicitation of bids or quotations or the negotiation of prices for Energy Supplies and Services. 8. Finaudat Ar nffements a. The City anticipates that municipal bonds or teases (the " Financing') will be issued for the of finding the purchase of Energy Supplies and Services and the costs related theerrelto for each of the Agencies. b. Each Agency which has authorized, accepted and eacectrted an Energy Contract under this A gr+eemeut, shall make timely payments to the CEO for the Energy Supplies and Savimi, and a" debt service payments and the Fees, Costs and Expenses that are identified in its respective Energy Proposal and the Financing documents. The payments by each cy shall be made in such amount, on such basis and in such intervals as necessary for the CEO to pay each Agency's share of the Energy Supplies and 4 Services and any debt service payments and Financing fees associated thereto and any other costs and fees for services mutually agreed upon between the CEO and the Agency. C. ThZement ies acknowledge and agree that the CEO will be paid a program development and fee for services, costs and expenses associated with this Agreement, which wig be payable at the settlement of the Financing from the proceeds of the Financing or over the life of the Energy Supplies and Services Contract. d. The Apacies acknowledge and agree that the Energy Consultant will be paid a performance ',fee for the services, costs and expenses associated with this Agreement, which wi payable at the settlement of the Financing from the proceeds of the Financing or over : he life ofthe Energy Supplies and Services Contract. 9. Confidential information The Agencies j acknowledge that one or more of the Agencies will produce, be exposed to, and receive confidential and proprietary information, including but not limited to records, files, documents, specifications, and other details (the "Confidential Information', which will be disclosed between and among the Agencies and the Energy Consultant and other' third parties in order to obtain bids or quotations for program implementation. Thp disclosure of this Confidential Information by the Agencies and Energy Consultant other than on behalf of the Agencies to this Agreement or for purposes other than those conned herein shall be extremely detrimental to the economic interests of all the Agencies. erefore, at all times hereto, the Agencies and Energy Consultant agree that any Conti ntial Information may only be used consistent with the terms and conditions contained herein, including program imFlemea3taRion and may only be disclosed to third ;,e toes with the express reservation and protecticm afforded confidential and proprietary m on. Varthin ten (10) days of the termination of this Agreement, such Confidential Iriftmnation, and any copies thereof, must be returned to the proper Agency- 10. Severability In case any o or more of the provisions contained in this Amt should be invalid, illegal or un able in any rmspeet, the validity, legality and ecifarceability of the remaining provisikmss contained herein shall not in nay way be affected or impaired thereby. 11. Supplements 'i This Agrcem amendatory or suppl officers (following a Agencies then joined following purposes, b may be supplemented from time to time by one or more rental insmiments, each duly executed and delivered by proper weal by the governing body of the City and each one of the a party hereto, except as otherwise provided heremafter? for the only upon satisfaction of the following respective conditions: a. To add mutually agreeable additional duties or responsibilities to those already identified for the Energy Consultant; b. To (i) assign rights; (ii) add to or delegate dirties or obligations; or (iii) release or terminate rights or privileges hereunder, upon agreement between the individual Agencies affected hereby, c o aid or supplement this Agreement in any way, upon agreement betwem all the Agencies; provided, however, that no amendatory or supplemental " eats shall be valid or effective for any purposes unless there shall be at the time of execution thereof and attached thereto an opinion of counsel, who s* be independent of each of the Agencies, with recognized competence in the field of nnWacipal law and/or municipal S®ance, that such amendatory or s Vplemental irustrument shall not have a material adverse effect on any Financing for Financings undertaken and then outstanding pursuant to §8 hereof; or d. For each contract for Energy Supplies and Services, to set forth the rights, duties and obligations of each of the Agencies participating therein to ensure fulfillm of the teams and editions of Ihe Energy Contract and the terms and conditions of the Financing thereof 12. Nonce All demands, notices, approvals, consaits, requests and other comnmm actions hereunder shall be in g and shall be deemed to have been given when. delivered m person or by repmroo or c eirdfied mail, postage prepaid, or addressed by recognized overnight delivery service: a. To the City, at its address set forth above. b. To each Agency at its address set forth below or on an attached Joinder Agreement, For the Harrisburg Housing Authority: Dorsey Howard, Executive Director Harrisburg Housing Authority 351 Chestnut Street Harrisburg, PA 17101 For the Harrisburg Redevelopment Authority: Wilmer Faust, Executive Director Harrisburg Redevelopment Authority Rev. Dr. Martin L. King City Government Center Suite 40V, S 10 North Second Street Harrisburg, PA 17101 3. For the Harrisburg Parking Authority. Ronald Massott, Executive Director Harrisburg Parking Authority McCormick Public Safety Building 123 Walnut Street Harrisburg, PA 17101 13. Assignment Agencies may assign their obligations and benefits to another participating Agency. AR assignments may be made only with the written consent of the partictpatitig Agencies hereto which shall not be unreasonably withheld 14. Amendment This Agreement may not be changed, modified or amended, in whole or in part, except by a writing executed by the authorized representatives of all of the parties hereto. WBEREAS, the City of Harrisburg and the parties hereto execute and deliver this Amended and Restated Intergovernmental Cooperation Agreement on the date fast written above. CITY O B G 113, *R&. &ZedM2ryY4Ur By: 'Aavw 1 James McCarthy, aller EXHIBIT A IGCA JOINDER AGREEMENT South Central Assembly for Effective Government Participant: Participant: I (? ; }? +7I ??+ t 0 a' At S41 ? Address: g <S. S z, i2, r h, f, = 4- 1 ?- 0 P-e) I v, P4 -77 Intending to be legally bound hereby joins in this INTERGOVERNMENTAL COOPERATION AGREEMENT dated as of day of , 20_, by and between the City of Harrisburg and all other Participants signatory to the said Agreement. This Joinder Agreement shall have the same force and effect as if the undersigned had executed an original Agreement with the City of Harrisburg and all other Participants executing a Joinder Agreement. EXECUTED on the -z nd day of ,,4 P r ', l , 20dA. ATTES P I r ,? ''? By: Yt err cr- Title: EXHIBIT i? a BENCHAL4RK EizP.Ypp 9016 a n s, Inc. Agreement for Witty Information and Management Services BACKGROUND. t?MC& ' 4 (Cbuit) will be participating in the Powar and y Pufbliese Program (the rPEP Prdgrsm") and has executed a Agreement for the intergovernmental Cooperation Agreement (the ") or the Joint Purchasing AgreameM (the :lPA7. The CEient is served aWifiieskervioes such as natural gas, electrity and liquid fuels, and uf* biii processing, ongoing irrkormallon and an analysis of itte corm and casts of thaw trtftitleslaervices. BENCI4MAARRIQ Energy Solutions, inc. (BEST) Is the Energy Consultant to the PEP Program and adv * the Agencies and PartkipaMs (local governmarNs. ftit agencies, non profs and W oman) in ft tx>Ileclk4e purrfiaea of Energy Supplies and Servioea and also Orees to provide the following Sownal services to the Client for Chair ate. (1) Mold t3ee Acounts forCh'Ord <!> (2) E edrIW!y < > c ! > (3) Liquid Fuels AcOunts BENCHMARK wpf provide tine Client with. I CompeNtve prroed natural yes and liquid i commodity and deivery services that asres the gent money on their utfty hips. It Comps"priced ekcMc ty generation (when available) that also saves the Cliefnt mo* on ttw utility bills. fit UWty EM ProoessVq and Information to assure accurate bilk and prompt delivery and Onymait of to utOy bF& IV Managamant InbrrnatlonOW enables the Client to make more etteative business decisions. EXHIBIT C i BE NC Ear Soludo", ,brio. Contkrued page 2 Agreement for Utility Infomration and Management Services Scope of vices. {fit WM juBforize the bifing departments at the nahuai gas, fasts, and efectric utlfidw/verW= to work with BSI in the preparation of their bills. BSI wii W*Ode: a. Conaafxla?d Utidy Bft: Collate, tabulate, summarize and report montfdy to AM the consumption, costs and the bB to pay each ufJlhy. b. Utility nt Reports: Annual Reports of Uti"ity Management Information This k tKs, in a summary farm mon usage, costs and savings, an of Wdoricat iniormagont rooommendations for uNty system tmlu , and other agreed to lnfartrration. BENCHMOK's additional respond Ues: a Main ao accu als u ft data base (profile) lor each aft including: Koperly addnnss, alt, ser" sfatb= (consr npWn and costs). b. Interface the uOles and provide they mwkifron of probtems. c. Ault sample the biNs for accuracy vs. the Tariffs, and report differencm d. AnsWa dats, compare mor", seasonal and annual usage and costs. a. Identify a4 report opportunities to reduce (conserve) resources. 8 C6a?ts' ResponsWOM a. Use Its beat efforts to provkie 881 wkh timely mw" uBRy b2s b. Report on a timely bests, dmnges in utility accounts. BEATCHMARK Everv, 56k oms, c. Continued pail 3 Agreement for Utiiriy Information and Management Services Term of the Agreeirnerrt: This Agreement is effective as of the date below and shat remain in effea fli. three years. This Agnes will be subject to automatic extensions of one year either party notifies the other In wrifiny of Its Intention to terminate at least (60) days n advance of an expiration data. Corntdendw. Party adttrowiedgee that at material and information which has or will ocrne Into the es session of the o#w party In won with this Agreement or the xft of confidential and wapfietary dale, disdoem of which to co; ? or use by Ohtrd wig be damagirng. Both parties 4rerefor s agree to hold such material c:onfi I. Further fte Ap may be Terminated under Viese conditions: Client resen+es IN ? right to terminate Otis Agreement for cause In the event of (1) a bread: of this Agreement BEST, (2) the failure of SESI, after written notice of the specifics from the C 59K to part rm Its duties in a timely and pcofeasional manner. SESI reserves the right to terminate Oft Agreement for cause In the event of (1) a breach of this Agreernert fife Chat, (2) the figure of the Client attar written notice of the spectgcs from to perform is duties in a timely and prollessional marrm. In the event of a of Otis Agreer prior to a scheduled termination dale, BEST shall be entitled tol a , pro rate payment for all previously unpaid service through the date of such termination. 7 Coat of Sanrice In CMvidarefion of the work to be perbrined and flue work products to he delvered, C shag pay to BEST the Fees per the Fee Schedule c un ently In affect (sae Schedule A 4 its update atteched). a Sponsorship and 4anagement pnvoroed and due monthl? b. Mot" Billing far im- TEE Account (invoiced and due c Monthly t3ibirig for , Delivery or Cenerafion, T Accounts (Involoed anti do d Special set u F The cost to the Program Sonwer s, and Input the Data for Consolidated Billing. e Annual Budget to each Designated tif$t!Y) "miced wilhin,days of conVietion) Rate class dependent 2.5% to 5.0% Vol. Oass Dependent 8220 - $6.60hmo. NO per month $12.50 EL per month $8.33/$12.50 plus Performance Fee per Fee Schedule $0.00 /Acct $ Sy Agreement Acceptance By execution and delivery of this Contract, and intending to be legally bound hereby, the undersigned agrees to this Propose] as of March 1, 2009, Hampden Township, PA c.. met* 41 Pmt Eloard of -5LW?s BENaDURK F..mv S.III ., L. YNtifsaft J. Watch President SCA Schedule A Fee Schedule Intergovernmental Cooperation Agreement and Joint Purchasing Agreement Utility Bill Auditing and Processing Commercial Accounts Per Account Cost of service (mo utility', bill) < $250 $2.20 >$250 <$750 $4.40 >$750 $6.60 Commercial Contract Accounts (Bulk purchase or negotiated price accounts) Per account / Rate Classes Electric GS1 Electric GS3 /LP all Nat Gas, Liq Fuels Sponsorship, Management and Contract Negotiations Rate Classes Nat Gas (NT/CT) and all Electric Rate Classes Nat Gas (102 / LFD) Liquid Fuels (Diesel, Gasoline. Heating Oil) Performance Fees - Cos Savings Nat Gas Delivery - Tariff comparison or Market based pricing Nat Gas Commodity - Tariff comparison Electric Generation- Tariff F comparison Performance Fees - Utili Bill Savings Saving money on the bill of Diff: Tariff vs Contract w/Utility or Vendor of Refund for bill errors, over-reads, sales tax GS1, GS3, LP = EL Rate Classes NT, CT, LFD, IS#2 = N Rate Classes $8.33 $12.50 % mo contract 2.5% 5.0% 4.0% 30.00% 30.00% Effective 10/01/07 Edited 10/01/09 EN .1 LA.RK Energy Solutions. Ike ? ; , This agreement is entm-ed into on the day of Z u?'? ? fr 20 rtef by and among BENCHMARK Energy Solutions,. Inc., (BESM 1500 Cochran Road, Ste 1003, Pittsburgh, PA 15243, and Seven - Utility Management Consultants, Ltd., ("SUMC") ', 12300 Dundee Ct, Suite 215, Cypress, TX 77429, ("SUMC"), and kj Tcirs /d 5;-Y, I r Agreement CV"-) and the ]o Pcaxbas? Agreement (°`iPA"j which were developed for local govermnecrts, WHEREAS, C)? is a member eidier the IGCA or 3PA, has engaged BENCHMARK as their Utility Cent, is kwastod in g supplies and smvx= ? these agreements, and has also signed a M Services Agreemw? with BENCHMARK in which 11010 ARK Provides energy moment and supplies kchl% CO?t ebb ricity won, and; WHEREAS SUMC has devdop#d certain proprietary medwds for examining uti ity expenses for their customs and has entered 111110, certain bus#ww array with third parties, which allow SUMC to offer these customers favorable utility ==gementr. WHEREAS CLIENT.desift to have SUMC examine its electric utility expemxs and malm certain favorable utility arrangenmeats for the CLIENT. ("CLIENT'). WHEREAS, BENS Faergy Sohn, Inc. is the EneW Cam to the InI gavemmental Cooperation agencies, ma-profits ?d to join togs is The collective purchase of energy supplies and related energy pert servives acckcding ,and; THEREFORE, CLIENT hereb? engages SUMC to perform expense reduction analysis and make written (1) In oottaidaabaa for its PST to CLIENT. CLXENT hereby mbm= SUMC to lap {?. 'I' ion =PPIY ? evabdft ?, and assisting in =uza negatiatiooo?s oo advi g an BEY manacs (avdy the "Services' CLIENT heir agrems that during the of this ageoemottt;, SUM shall be do axcisive pFvvider of the Services to CLIMT. All udit providers (`?mvid?'} we bmby regoe td to foiward all offers, and oon0?nning CLIENT to SUMO. This gpanerct shall be effective for a period of six aaodM Hre daft of fife qpmad, said SUMC shall Lave the qd= to mew the ag eemeost do:aag the of MW MrVix agtoeeamt between CLMNT and ale Pmwida: Client agrees cwt to use our and week potoducx to negotife wA Enoalry Plovide . (2) SUMC will perfimm all samces regmred to anab= Hie above indicated ewe areas and submit written reoo1dstian(s) that will omMe CLIENT to realize savings in those arms. Regardless of which Pmvidw CLIENT chooles, tine foe will be paid by the Provider to, SUMO. SUMO wilt rat invoice the Chart or BENCHMARK for its servim (3) SUMC will have to tine appropriate wcow g records of CLIENT fw the purpose of initial. ao and socbaoegca, -airy subject to nonod confided ' requirements ofthe CHIT:. SUMO will also bava aocxss curi t dens. SUMO admawledges the confide via ft of all CLIENT 111founation reo dw d the m*sis and 4V= not to disclose ? ittfrmattimuntess so authored by CLIENT. (4) In perfnrmatg the and the maamer the p of the c, SUMC shall act as an mdepanknt oont ramw and have control of the.method tho am per nmed. SUMC is wed to contract with others to assist in the EXHIBIT -? Client: Z Printed Name:,? % Cyr rte: C7 5 5 f Title- U u' /li` .SyF i -P r Hate: ' " ~ ,? ^ o q Tax ID: '3 L Benchmark )Energy Sotation$, Inc. Lzzoz - 1-- 0 By: Printed Name: 11, ?(?t i ? V? 1;?? 'Lytle: ?'matp+ Date: RJ?910 Seven UtiW Management BY: Printed Name 'Lytle: Date: 1506 COCHRAN ROAD, SUITE 1003, PITTSBURGH, PA 15243 T (412) 5?1-0850 F (412) 571-9121 (e) benchmark33@verizon.net LETTER OF AUTHORIZATION FOR' REQUEST OF'I HISTORICAL USAGE INFORMATION Date: Expiration Date: LIST LDC (List Local [1"istribntlon Company that applies to this request] PPL (Fax 484-6343260) AUTHORIZATION I affirm that i have the authority to makes and sign this request on behalf of my company for all ESID's that are associated with this request. f??j r?7 7t r? T© C& A/ S eP? igna ) (Legal Company 4ndude any DBA} 56 F, A ,Name. Printed) (Billing Street Address) -'T`p tt 'u tI 1-? t'>-, e5 - C.'41 kA/ 1 C Tile} (City, State, Zip Code) hJe55E? )c1>>?.c1?`rl--?dzc+:7s?i?r.r<s -7/7-`-,7(o1-?'/t . Email Address) (Tek#xx*e Number) Z..-(ve3,-/3f- 7 Federal Tax ID Number or Social Security Number) (Fax Number) info evenutity.com - www,seveautility-com 12300 l3undee Court. Suite 215. Cyprus, TX 77429 Local (281) 213 9910 Toll free (866) 85-SEVEN Fax (281) 213-9801 Please accelf this kdw as a format and authortcatiori fora data f Loci the f DisVibution r Company (LDU) to release energy usage data, encrtg kWh. INFO@SEVENUTIUTY.COM_ This information reqWA or KW and uest shall be limited to no more than the most recent 12-month period of service. 1 Hampden Township 00215-77006 Golf Irrigate 17 2 00289-27415 PS #15 Scenery Dr 3 00389-21023 Sewer TrtPlant, PS #1, PB 4 02139-45003 Golf- Restrm #5 5 04035-07004 PS #22, 4200 Roth Ln 6 04759-26062 PS #2 Prowell Dr 7 09849-04001 Goff Restrm #13 8 12783-57002 Rec Crkvw S Gate 9 15217-13012 PS #21 Good Hope Rd, Fairwinds 10 15640-84001 Swer TrtPlant Roth Ln 11 15680-33395 PS #14 Manor/Trindle 12 15840-84007 Sewer SludgePad, Roth Ln 13 19080-76005 PS #10 Hampden Ul 14 21730-72021 PS #23 HoNzRuntMagaro Rd 15 23764-41004 Sewer Roth Pole Bid 16 32410-87000 Rec Office PkSt, Bld#1/FacBld 17 32810-87002 Rec/Sim-PkSt HampPk/Pool 18 32810-87002 RectSim-PkSt HampPk/Pool 19 37210-87004 PS #16 Mech Navy 20 40759-21063 Rec Maint PkSt Bid#2 21 43810-87005 PS #12 SearsRn/Conodo 22 44759-2WW PS #3 ConodotHempt 23 48198-80007 Rec SalemPk Paviiiion 24 55680-33399 PS #6 PA RR 25 58340-70008 PS #7 Good Hope/Mill 26 74090-74001 PS #18 SLJohn Lt 196 27 74680-32392 PS #9 Indian Crk 28 77412-41008 Rec SaiemPk Field #6 29 80759-21067 Adm MunBld, SportHill 30 81480-76008 PS #5 LampsGap 31 8164044000 PS #4 ErbsBrRd 32 82580-81004 PS #8 HampindPk 33 82979-29016 PS #11 Woodcrest Dr 34 83038-17001 ESB Gate-Chas.Rd 35 83810-80000 Rec Maint, Park St 36 84410-80000 EMS Bldg, Sport Hill 37 84969-23587 Roe CrkvwPkfRestrooms 38 89290-77009 Golf IrrigPond Lampl.n, NOT Winter 39 92131-48003 Roe Hampden Pk Pav/Storage 40 93580-80000 PS #20 Simpson Ferry 41 93680-30398 SP #19 Fairway/LittleRn 42 93690-77000 Rec ConodoYth Pk, OrrsBr 43 94131-73000 Hwy Roth Ln Garage 44 III' 95611-44008 TS LambsGap/SilverSpSq 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 Hampden Township 95810-82009 97847-91009 97890-77004 90431-54006 16601-20008 16801-20004 16801-20004 00201-81006 00570-72009 00770-72005 02673-69004 02797-14000 06469-26472 08659-27555 10650-84014 13680-39295 17810-83002 18831-41009 21140-70005 21759-22060 24725-54477 30618-55000 33436-66001 33555-21008 34433-17005 44193-75003 44401-25006 46659-25551 51810-83004 53680-39299 55500-77001 57189-67004 63900-78007 66219-99000 75017-72002 84010-80008 84810-80002 86659-25552 90802-34009 92440-84007 93801-24004 99965-81017 6933492003 PS #13 Prowell Dr Fir Vol#1, ESBN, GoodHope Golf ProShop/Restaurant Traffic Signals Street Lights Twp Street Lights Twp St. Light-Wentworth Hampden Twp Hampden Twp/Waming Signal Hampden Twp Hampden Twp/Traffic Signal Hampden Twp/Warning Signal Hampden Twp/Traffic Signals Hampden Twp/Traffic Signals Hampden Twp Hampden Twp/Traffic Signals Hampden Twp/Traffic Signals Hampden Twp Hampden Twpi7raffic Signal Hampden Twp/Traffic Signals Hampden Twp/TS Hampden Twp Hampden Twp Hampden Twp Hampden Twp/Waming Signal Hampden Twp Hampden Twp Hampden Twp[Traffic Signals Hampden Twp(Traffic Signals Hampden Twp/Traffic Light Hampden Twp/Traffic Signals Hampden Twp/Traffic Signals Hampden TwpiWaming Signals Hampden Twp Hampden Twp/Signal Hampden Twp Hampden Twp/EMS-Traffic Signal Hampden Twp/Traffic Signals Hampden Twp(Signal Hampden Twp/Waming Signals Hampden Twp[Signal Hampden Twp/Signal Wastewater Treatment Roth Ln MASTER SALES AGREEMENT This Master Sales Agreement ("Master Agreement") is entered into by and between Liberty Power Holdings LLC, Liberty Power Maryland LLC, Liberty Power District of Columbia LLC. Liberty Power New York LLC and LPT, LLC (all Delaware limited liability companies) (collectively referred to as "Supplier"), and Hampden Township ("Customer"), as of (the "Effective Date"). Supplier and Custom may individually be referred to as a "Party" and collectively as the "Parties This Master Agreement, together with the hints, schedules or other property executed supplements, and any and all Transactions and Sates Confirmations will be referred to herein collectively as the "Agreement". Definitions of certain capitalized words and phrases used in this Agreement are set forth in Exhibit A- 1. SCOPE OF SERVICES 1.1. Purchase and Sale. Subject to the terms and conditions set forth herein, Supplier shall sell and deliver and Customer shall purchase and receive electric energy pursuant to a Sales Confirmation. 1.2. Contract Price. Customer shall pay Supplier for the electric energy purchased at the Contract Price, as specified in an applicable Sales Confirmation, plus (1) all applicable Taxes, (ih) all other amounts related to the purchase and delivery of electric energy to the Delivery Point(s), (ni} all Pass Through Charges, and (iv) any other fees specified in the Sales Confirmation. The Contract ice includes the cost elements to serve Customer Accounts as specified in the Sales Confirmation. In the event any account is not covered within the stated Term of a valid Sales Confirmation, such account will be billed accordinIg to an applicable index rate plus a pass through of all applicable derivery components including, but not limited to energy, rapacity, congestion, ancillary services and LSO administrative cost Renewable Portfolio Standard, and losses plus a fixed adder rate of $0.025 J kWh. The fated adder price does not include Taxes or regulated charges from the Utility including, but not limited to, T&D Charges, customer account fees, or other utility transition charges. L& Term. This Agreement shall be effective on the Effective Date and shall remain in effect until terminated by either Party upon thirty (30) days prior vni 1w notice to the Notice Parties. Notwithstanding the foregoing, the termination of this Agreement shall not effect or apse the perforniance of either Party pursuant to any provision of this Agreement that by its terms survives any su termination and provided, further, any Sales Confirmations executed pursuant to this Agreement shall remain in effect until both Parties have fulfilled. any and all of their respective obligations with respect to the underlying Transactions, 1.4. Transactions. A Transaction '11 be entered into only upon the execution by Customer and Supplier of a Sales Confirmation Each Sales Con tion shall include terms including (i) Accounts, (il) Transaction Term, (iii) Contract Price, (iv) Contract Quantity. ( Delivery Point(s) and (vi) other special terms and cortditiott% if any. Any inconsistency between any terms of this ster Agreement and any terms as specified in a Sales Confirmation will be resolved in favor of # Sales Confirnati Transactions will begin and shut on and as of the Utility Transfer Dates specified on the applicable Sales Confirmation. With respect to each Transaction, Supplier will use commercially reasonable efforts to cause each Utility to take whar ever steps are necessary to allow Supplier to begin providing service at the beginning of the Transaction and cease service at the end of the Transaction as of the dates specified on the applicable Sales Confirmation. 2.OPERATIONALTERMS 2.L Information and Designations Customer will, with respect to each Account for each Transaction: (i) provide Supplier with usage data for the comparable period in the preceding year, (ii) participate in `retail access" under the applicable law and Rules; (iii) execute at Supplier's request any separate written agreements (including with respect to electronic data exchange and other similar matters) that may be required by a Utility in connection with the implementation of this Agreement, so long as such agreements do not increase Customer's obligations hereunder; and Qv) provide Supplier with such other in on and take such other actions during each Transaction Term as Supplier may reasonably request, i Proprietary and ConHdarrtlaJf 1 of a EXHIBIT I F, 2.2. Electric Energy Delivery. Sup tier will sell and deliver and Customer will purchase and receive electric energy at the ISO's points of delivery identi ed in the Sales Confirmation(s) ("Delivery Point(s)"). Title to and risk of loss related to the electric energy shall transfer m Supplier to Customer at the Delivery Point(s), and not at the Customer's meter. 2.3. Notice of Operational Chan M. In the case of any Transaction involving a full requirements Contract Quantity, Customer will use its comm ally reasonable efforts to promptly advise Supplier of any event reasonably known to Customer that may impact Customer's ability to receive the Contract Quantity ("Operational Change"). If Customer fails to use its commercially reasonable efforts to notify Supplier of an Operational Change, Customer will reimburse Supplier for any charges incurred by Supplieras a result of such Operational Change. 2.4. Utility Curtailment Notices Customer agrees to promptly notify Supplier of, and fully comply with, all Utility curtailment or interruption orders or similar notices received by Customer from a Utility requiring the interruption or curtailment of Customer's electric energy usage at any Account (a "Utility Curtailment Notice'), and pay any and all related charges imposed upon or incurred by Customer or Supplier as a result of Customer's failure to so comply. 2.5. Force Maieure. To the either Party is prevented by Force Majeure from carrying out in whole or part, its obligations under the transaction and such Party (the "Claiming Party"} gives notice and details of the Force Majeure to the other Party as soon aspracticable, then, unless the terms of the Transaction specify otherwise, the Claiming Party shall be excused from the performance of its obligations with respect to such Transaction (other than the obligation to make payments then due o becoming due with respect to performance prior to the Force Majeure). The Claiming Party shall remedy the Fo Majeure with afi reasonable dispatch. The non-Cialming Party shall not be required to perform or resume perfo ance of its obligations to the Claiming Party corresponding to the obligations of the Claiming Party excused by Form Majeure. 2.6. Billing and Payment Suppl' shall invoice Customer in accordance with the invoice procedures set forth in the Sales Confirmation(s) for electric ergy supplied under this Agreement. Invoices provided by Supplier, whether during the term of this Agreement or ereafter, shall be due and payable within thirty (30) days of the date of such invoice. Customer shag make paym is to the address set forth on the applicable Sales Confirmation. Overdue payments shall incur a late payment fee by interest at the Interest Rate from the due date. If Customer in good faith disputes some portion of a Supplier i voice, It will provide SuppHw, on or before the payment due date, a written explanation specifying the amount in d' ute and the reason for the dispute and shall pay the undisputed portion of the invoice. Supplier and Customer will L se good faith efforts to resolve any dispute concemk g Invoiced charges. Any amounts finally determined to be ova d will be paid within five (S) business days of such decision, plus Interest at the Interest Rate from the invoice due dale 2.7. Audit. Customer has the righ to request supporting documentation of Supplier to the extent reasonably necessary to verify the accuracy of any t, charge or computation made pursuant to the provisions of this Agreement concerning Transactions rring within the previous six months. Customer agrees to notify Supplier with written notice thirty (30) days in ad ance of Customer's proposed date to visit Supplier's location to examine records. If any such examination reveals an r inacauacy on any invoice, the near adjustments to such invoice and the payments thereof shall be made withl thirty days of resolution of the inaccuracy. This provision of this Agreement will survive any trrrination of the for a period of six (6) months from the date of such termination for the purpose of resolving such invoice and nea objections. 3. LIMITATIONS OF REMEDIES, LIABILITY AND DAMAGES 3.L LIMITATIONS F REMEDIES. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PR DED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES WILL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR'S UA urf WILL BE LIMITED AS SET FORTH iN' SUCH PROVI SION AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY (INCLUDING, WITHOUT LIMITATION, SP FIC PERFORMANCE) ARE WAIVED. EXCEPT AS SPECIFIED IN SECTION 4 OF THIS AGREEMENT, 11 ER P WILL 8E LIABLE 170 THE OTHER PARTY FOR CONSEQUENTIAL. INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT D GE5 LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT OR O ERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS IMPOSED ON REMEDIES AND MEASURES O DAMAGES BE WITHOUT REGARD TO THE CAUSE THEREOF, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER UCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE TO THE ProprWhar r and C ntiat . tnltla Pam 2 of 8 EXTENT ANY DAMAGES REQUI D TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR It POSSIBLE TO DETERMINE, AND THAT OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE LIQ }DATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION OF HARM OR LOSS. 3.2. Electric Emergencies and Power Qua . The Utility will continue to operate the electric transmission lines and to maintain responsibility for p er outages and for power quality. Customer will hold Liberty Power harmless in the event of a loss of power caused) by any entity other than Liberty Power. If Customer has an electrical emergency, power outage, or reduction in power quality, Customer should contact the Utility at its emergency number. 3.3. Governmental Authority: Liberty Power is not liable for any damages due to an interruption in service caused by acts of any governmental authority or- changes in laws, rules, regulations, practices or procedures of any governmental authority. 4. GOVERNING LAW AND DISPUTE RESOLUTION 4.1. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER WILL BE GOVERNED BY AND CONSTRUED, ENFORCED AND PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF PENNSYLVANIA, WITHOUT G NG EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS. 4.2. Chance in Law. In the event th there is a change in law, administrative regulation, or any fees or costs imposed by the applicable ISO or by a Governental Authority ("Change in Law") and such change causes Supplier to incur any capital, operating or other costs relati g to the provision of services contemplated herein, In order to maintain the same level and quantity of delivery of electric energy, such costs will be added to the invoice as a Pass-Through Charge and Customer agrees to pay such Through Charge. 4.3. WAIVER OF JURY TRIAL EACH IT MAY HAVE TO A TRIAL BY AGREEMENT, EACH PARTY M 1 REPRESEN I D, EXPRESSLY OR ACTION, CLAIM OR PROCEED AND THE OTHER PARTY HAVE MUTUAL WAVERS AND CERTI 5. CONFIDENTIALITY AND PUBUCITY S.L Confidentiality and Publicity. T any information made availab shall not be disclosed to any public, (ii) as may be required any litigation or to comply will (lid) as maybe obtained from a its obligations to the non-disdi Affiliates, and to each of suc information that Is disclosed i expiration or termination of t Customer provides Supplier pri IY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IN RESPECT OF ANY SIR, ACTION, CLAIM OR PROCEEDING RELATING TO THIS IFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS ERWLSE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF SUCH A SUIT, SEEK TO ENFORCE THE FOREGOING WAIVER AND 00 ACMOWLEDGES THAT IT BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY AMONG OTHER THINGS THE (IONS IN THIS SECTION. e contents of this Agreement and all other documents relating to this Agreement and by one Party to the other Party with respect to this Agreement are confidential and hird party, except for such information (i) as may become generally available to the r appropriate in response to any summons, subpoena, or otherwise in connection with any applicable law, order, regulation, ruling, or accounting disclosure rule or standard, on-confidential source that disclosed such infannation in a manner that did not violate ing party in making such disclosure, or (Iv) as may be furnished to the disclosing party's person's auditors, attorneys, advisors or lenders which are required to keep the confidence. This obligadon shaft survive for a period of one (1) year following the Ls Agreement. Supplier may not identify Customer as a customer of Supplier unless r written authorization for such Customer identification. 6. NOTICES 6.L Nom. All notices and siml correspondence will be in writing and delivered as specified below to each of the entities listed (collectively the "Notice Parties") by regular mail, courier, electronic mail, or facsimile. Notice will be effective upon receipt by the person to whom it is addressed. 6.2. Notice Parties Proprietary and Confidtin" Initial Pape 3 of 8 CUSTOMER INFORMATION SUPPLIER INFORMATION Name pcien Township Liberty Power Holdings Attn: Alberto Daire Address 1901 W. Cypress Creek Rd. Suite 600 ' Ft Lauderdale, Fl. 33309 Phonelfax Ph: (305) 992-8142 Fax: (212) 504-3295 E_Mad alberto.daire@iiber"owerco ru com T. ASSIGNMENT 7.1. Assignment Neither Party sh, however, that Supplier may provider and Supplier may gr, credit provider). Supplier m; providers under contracts to creli t provider (or, if an ager enforce Supplier's rights unde or other exercise of remedies the purchaser of facilities be. equal or higher credit rating Affiliate"). Alternatively, in tit Affiliate if its credit quality is i 8. REMEDIES FOR FAILURE TO I assign this Agreement without the prior written consent of the other party, provided, ssign the accounts, revenues and proceeds arising from the Agreement to a credit it a Den upon its rights under this Agreement to a credit provider (or to an agent for Its also assign its rights and obligations under this Agreement to certain backup service uform services such as invoicing and power scheduling ('Service Providers'). Any such has been appointed, such agent) who has been assigned this Agreement may directly this Agreement and may assign Supplier's rights under this Agreement upon foreclosure y such credit provider (or agent). Customer may assign this Agreement to an Affiliate or g served' under this Agreement provided that such Affiliate or purchaser possesses an 'Required hating") than that of the Customer at the time of the assignment ("Eligible absence of the Required Rating the Affiliate or purchaser. may be considered an Eligible hanced to the Required Rating by way of guaranty or other mechanism. 8.1. Custom if Customer fails receive all or part of the Contract Quantity to a Transaction, and such failure is not excused by reason of Force ajeure or by Supplier's failure to perfonrt, then Customer shall pay to Supplier, on the date that payment would oth rwise be due in respect of the month in which the failure occurred, an amount for such deficiency equal to the difference, if any, obtained by subtracting the Market Price (as defined In section 9 of this Agreement) from the Co ct Price multiplied by the undelivered Contract Quantity for such month. The invoice for such amount will include ? written statement explaining in reasonable detail the calculation of such amount 8.2. Syppiigr. if Supplier fails to failure is not excused by Customer or credit Custom in which the failure occuu subtracting the Contract I undelivered Contract Quar in reasonable detail the cal ice 8.3. Disconnection of Serv of the charges due hereu service to non-residential 9. EARLY TERMINATION PAYMENT LPIIBA "N Proprietary and Confidential edule wWor deliver all or part of the electric energy pursuant to a Transaction, and such on of Force Majeure or by Customer's failure to perform, then Supplier shall pay to next invoice, on the date that payment would otherwise be due in respect of the month an amount for such deficiency equal to the positive difference, if any, obtained by from the Market Price (as defined in section 9 of this Agreement) multiplied by the for such month. The invoice for such amount will include a written statement explaining don of such amount i the local utility has the ability to disconnect your service. Failure to make full payment will be grounds for disconnection in accordance with regulatory rules on termination of initials?`!l.? 4or8 9.1. Customer. In the event of a C mer Event of Default, Supplier shall have the right to terminate this Agreement by delivering written notice to Customer and to calculate the Termination Value. If the Termination Value is calculated to be a positive number, the Customer shall be obligated to make an Early Termination Payment to Supplier in an amount equal to the Terms Lion Value_ In all cases, Customer shall remain obligated to pay all other amounts owed by Customer to Supplier and r this Agreement. 9.2. Supplier. in the event of a ppiier Event of Default, Customer shall have the right to terminate this Agreement by delivering written notice to upplier and to calculate the Termination Value. If the Termination Value is calculated to be a negative number, th Supplier shall be obligated to make an Early Termination Payment to Customer in an amount equal to the abso! value of the Termination Value. 9.3. Formula. Termination Value is equal to the remaining Contract Quantity times the greater of (i) Contract Price less Market Price at the time of ermination, or (ii) $0:007/kWh. 9.4. Definitions. The Contract Quantity shall be defined as the undelivered Contract Quantity for the balance of the Term of the applicable Transacti (s). Under Transactions where the Contract Quantity is based on the full requirements of the Customer, then the Contract Quantity for purposes of calculating the Early Termination Payment shall be based on the historical mon ly consumptions for the accounts, specified in the applicable Sales Confirmation(s) and the List of Accounts attach to such Sales Confirmation. The Market Price shall be determined by Supplier by reviewing, among other things, the load-weighted average of electric energy forward prices in the congestion zones/nodal pricing point o similar locations where the Accounts specified in Schedule 1 of the Sales Confirmation are located and to includ?nner ncillaries, transmission losses and other pass through components. The Term for the Market Price will be for remaining Term of the applicable Sates Confirmation(s). Supplier agrees to act in a commercially reasonable to establish the Market Price. 9.5. Renewable Energy Cred' REW . Where a Transaction hereunder involves the purchase of RECs, in the event of a Customer Event of Default here the RECs have already been transferred to Customer, Supplier shall be entitled to additional monetarydamag equivalent to the RECs sales price pro-rated for the remaining Term of the applicable Transaction. 9.6. Netting. in the event of a Supplier Event of Default, Supplier has the right to net and set-off any amount owed by Customer to Supplier under is Agreement against its Early Termination Payment. 10. EVENTS OF DEFAULT 10.1. Events of Default An " of Default" shall mean: (a) for the Customer, (i) the failure to make, when:-due, any payment required under thi Agreement or (ii) the failure to take electric energy when delivered under terms of this Agreement if such failure ! not cured within ten (10) Business Days after Supplier provides written notice to the Customer; (ill) a downgradi of the credit rating of Customer or Customer's Affiliate or Guarantor, from that which was in effect on the Effectiv Date of this Agreement (b) in the case of Supplier, the failure to fulfill its obligations as set forth in this Agreement with regard to (!) Contract Price, (ii). Transaction Term, (iii) Contract Quantity and (iv) timely invoicing for deliveri es of electric energy, in each case, if such failure is not cured within ten (10) Business Days after Customer provi des written notice to Supplier; or (c), if either Party (i) flies a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy or similar law fo r the protection of creditors, or have such petition flied against it and such petition is not withdrawn or dismissed for twenty (2(4 Business Days after such filing or (ir is unable to pay its debts as they fag due and such inability is not cu within ten (10) Business Days aftergWmg written notice to the Notice Parties. 10.2. Remedies of Customer Ewe rit of Default In the event of a Customer Event of Default, Supplier has the right to terminate the Agreement n accordance with the Eady Termination Payment provision and to take such other actions as are necessary to disconnect service from Supplier to Customer. In lieu of termination or disconnection, Supplier may, in its sole d' , require adequate assurance of performance by Customer including requiring an additional deposit from Cu Hier,, requiring payment in advance of invoicing of an amount up to the actual billed amount for the prior thm months or requiring payment in advance of an estimated -billed amount based on Customers usage for the three months. 10.3. Credit Assurance. If Suppii has reasonable grounds to believe that Customer's creditworthiness or performance under this Agreement has ecome unsatisfactory, Supplier will provide Customer with written notice requesting ProprWmy and ConfiderMa! lnitiak Page 5 of 8 performance assurance In a amount determined by Supplier in a commercially reasonable manner. Upon receipt of such notice Customer shall have five (5) business days to remedy the situation by providing such performance assurance to Supplier. In the event that Customer fails to provide such performance assurance, or guaranty or other credit assurance acceptable to Supplier within five (5) business days of receipt of notice, than an Event of Default will be deemed to have occurred, and Supplier will be entitled to the remedies set forth in Section 10 of this Agreement 11. ENTIRE AGREEMENT 11.1. Entire Agreement. This Agreement embodies the entire agreement and understanding between the Parties, and supersedes all prior a nts and understandings between the Parties, whether written or oral, with respect to the subject matter hereof. is Agreement may not be amended except by a written amendment signed by both Customer and Supplier. 12 SEVERABIUTY 12.1. Severabilitv. In the event any of the terms of this Agreement are in conflict with any rule or laws, regulations, provisions or are otherwise unenforceable under the laws or regulations of any governmental authority or subdivision thereof, such terms shalt be deemed stricken from this Agreement, but such invalidity or unenforceabiliity shall not invalidate any of the other terms of this Agreement and this Agreement shall continue in force, unless the invalidity or unenforceability of any such provisions hereof does substantial violence to, or where the invalid or unenfo a provisions comprise an integral part of, or are otherwise inseparable from, the remainder of this Agreem it. If any one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in a y respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way a affected or impaired thereby. 13. OTHER 13.1. Execution. This Agreement ay be executed in several counterparts, including through facsimile signatures, each of which is an original and all o which constitute one and the same agreement. 13.2. Drafting . This Agreement shall be considered for all purposes as prepared through the joint efforts of the Parties and shall not be construed against one Party or the other as a result of the preparation, submission or other event of negotiation, drafting or execution hereof. 13.3. Definitions. Any term not d ned herein shall have the meaning provided in Exhibit A - Definitions. IN WITNESS WHEREOF, the Parties, by eir respective duly authorized representatives, have executed this Master Agreement effective as of the Effective Date. Uberty Power Holdings LLC Ubertp Power.MwVhnd U.C Liberty Power District of Columbia LLC Urr, LLC (SUPPLIER) By, Printed Name: Albe Title: Chief Oaerad Date: Proprietary and Gonftdsntiai Haeecden TownWo (CUSTOMER) t Printed ame: Wl c o e 4, eS ?? c-C , Cm. .-- Title: 11.11-.l% /.n c Date- ) r t `! d 4 S of a Initials?t _ if I Uber??, r- EXHIBIT A DEFINITIONS " ne means, for each Facility, each account at such Facility to be included in a Transaction and identified by a specific account designation number. "Actual Usaee" means the actual amount of energy (in kWh) used at each Account during any period of determination. " ate" means with respect to any P n, any other Person controlling, controlled by or under the common control with the first Person. The terms "contro?' (indud the terms "controlling", "controlled by' and "under common control with") will mean the possession, directly or indirectly, of I he power to direct or cause the direction of the management of the policies of a Person, whether through the ownership of voting securities, by contract or otherwise. "Acereeate Usace" means the total energy consumption for the Facilities covered by a Transaction. 'Anticipated UsaW means the antic energy usage (in kWh) by each Account during each month, which shall be equal to the actual amount of energy (in kWh) used by each such Account during the same month during the 12 month period prior to the commencement of the applicable Tra ion; provided that Customer or Supplier will reasonably estimate any such data that is not available. "811111ne QW means, for each Account{, the period between successive invoices rendered either by Supplier or the applicable Utility during the applicable Transaction term. means the Commodity Exchange #A 7 U.S.C. §51-25, et seq. as amended. "Chance in LaW means that appal ble Law or Rules are amended, modified, nullified, suspended, repealed, found unconstitutional or unlawful, or changed or affected in any respect by any Law or Rule of any Governmental Authority after the Effective Date. "Contract PrW means the Sale Price of,electric energy as defined in each Sales Confirmation. "FaciiW or "FacWdW means the Service Address of the Customer Accounts identified on Schedule 1 attached to the Sales Confirmation. "Force Majeure" means an event or ci rnstance which prevents the Claiming Party from performing its obligations under one or more Sales Confirmations, which t or circumstance was not anticipated as of the date the Sales Confirmation was agreed to, which is not within the reasonable of, or the result of the negligence of, the Claiming Party, and which, by the exercise of due diligence, the Claiming Party is u to overcome or avoid or cause to be avoided. Force Majeure shall not be based on W the loss of Customer's markets; (n) FM ees inability economically to use or resell electric energy purchased hereunder; (ui) the loss or failure of Supplier's supply or (iv) Supplier's ability to sett electric energy at a price greater than the Contract Price. Neither party may raise a claim Force Majeure based In whole or In part on curtailment by the Transmission Provider unless (i) such party has contracted for transmission with a Transmission Provider for the electric energy to be delivered to or received at the Delivery Point and (H) mch curtailment is due to "force majeure" or "uncontrollable force" or a similar term as defined under the Transmission Provider's tariff. "Governmental AudodW means an federal, state, local, municipal or other governmental authortty, instrumentality, department, board, art, tribunal, gory commission, or other body, whether legislative, judicial or executive (or a combination or permutation thereof) a any arbitrator to whom a dispute has been presented under any Law or Rules or by agreement of the Parties with an iryteres: In such dispute. "Interest Rate' means one percent (1 ) over the prime lending rage as published in The Wall Street- Journol under "Money Rates," not to exceed the maximum rate allowed by Law. Proprietary and Confldsntiai lnfitiais page 7 of 8 "ISO" means any independent system operator, regional transmission operator, "Transco," power pool or grid or control area operator established and providing sere ces to the Accounts or other similar entity providing the same basic services as such entities and any successor thereto. "Law" means any applicable statute, I w (including common law), ordinance, rule, regulation, ruling, order, writ, injunction, judgment, decree, directive, policy or o er legal or regulatory determination or interpretation by a Governmental Authority of competent jurisdiction, including with" it limitation, any such items dealing with or addressing the deregulation of the energy markets in the state where Facilities served pursuant to this Agreement are located. "Load Factw' means the percentage defined by dividing average demand by peak demand during a specific period. "Local rune" means the then prevailing ?ime (standard or daylight) of the time zone in which the applicable Facilities are located. "Perm" means any Governmental Au0ority or any individual, firm, partnership, corporation, limited liability company, joint venture, trust unincorporated organ'?on, company or other entity or organization. "PassThrough Charge' means any item zed charge that is incurred by Supplier in supplying electric energy to the Customer and is in addition to the Contract Price. Pa, Through Charges will be billed to the Customer at the same rate or cost incurred by Supplier. Pass-through charges usually late to, but are not limited to, T&D Charges, tariffs, and/or Taxes, "Retail Electric Provider' means the corporation, generator, broker or any other entity that sells electricity to end-user customers over regulated transmission Or distribution facilities. "itu " means as applicable, the interim or final requirements, tariffs, rules, orders, regulations and procedures authorized or established by the applicable Govem I Authority that affect the sale, transmission and distribution of energy and other services contemplated by this Agreement. "Taxes" means all taxes, assessments, levies, duties, fees, charges or withholdings of any kind whatsoever and all penalties, fines, additions to tax, or interest thereon, butt excluding any taxes on net income, employment taxes; penalties or fines. "T&Fi " means, if used in a Con Lion, aft charges of any kind imposed or authorized to be collected by a Utility orT&D Provider under applicable Law or Rules r or related to transmission and d'istri'bution of energy and related services, indudin& without limitation, Transition Charges. "T&D PMdder° means each entity transmittingtdistriiwting energy to a Facility, including, without limitation, any applicable ISO. "Trarisactlon" means a particular transaction for the purchase and sale of electric energy or other services pursuant to this Master Agreement as evidenced by a du?y executed Sales Confirmation, "Transaction Term" means the term of al Transaction as specified in the applicable Sales Confirmation. "Transition Charges" means charges on c+count of "stranded costs" or "transition costs" and any other similar types of charges associated with or resulting from the op ning up of the applicable state's electric market, whether as provided for in the Rules or otherwise. °UtilltY° means an electricity utility d button company, T&D Provider or other provider of tariffed services to the Facilities, including any "standard offer provider" t r "provider of last resort" (as defined under applicable Law and Rules). "Utility Transfer Date' means 00:00:01 Local rime on the day immediately following the date as of which the Utility for each Account has completed all steps necessary to permit Supplier to start providing the services set forth in the applicable Sales Confirmation. Propri iwy and Coin kWntkd initials Pale 8 of a . Upon execution by each of the Par Transaction as defined in and pun 11/0912009 ("Master Agreement") meanings given in the Master Agree FACILITIES AND ACCOUNTS: TRANSACTION TERM: This T Term will commence for each on or after 1/01/2010 and will PRICE For each Billing Cycle during Usage as specified in Schedule 1 an Customer executing and Supplier rei L This Sales Confirmation is only vat SALES CONRRMATION RXED PRICE PRODUCT Offer ID: Expiration Time: EST this Sales Confirmation will confirm the agreement of the Parties to enter into a to the terns of the Master Sales Agreement between the Parties dated as of ler the following terms and conditions (capitalized terms used herein have the on the attached Schedule 1. n will be effective when signed by both Customer and Supplier. The Transaction as specified on the attached Schedule 1 on the next Utility Transfer Date occurring until the next Utility Transfer Date occurring on or after 1210112010. he Transaction Term, Customer will pay Supplier a Contract Price per kWh of Actual described below. The Contract price has been set based on market conditions and :bring this Sales Confirmation prior to Offer Expiration Time as specified on Schedule upon full execution by both Customer and Supplier. VOLUNTARY GREEN PURCHASES: The Contract Price includes the voluntary purchase of renewable energy, represented by Green-e Certified Rile E?nergy Certificates, equivalent to the percentage, as specified in Schedule 1, of Customer's estimated Usage. CUSTOMER ACKNOWLEDGEMENT: Customer acknowledges that Account(s) may be invalidated or removed from Schedule 1 by Supplier If (1) the in rmation listed for any Account is materially inaccurate, or (2) for any reason the Utility does not accept, or causes sig ifrcant delay in, the enrollment of any Account, in which case Supplier and Customer may execute an updated Sales Confi ation as mutually agreed by both Parties. INVOICING: Supplier shall submit account for Supplier ConsoGd agreements. Such invoice shall i the Account number(s). Inv determined by the Utility's ste Invoices shall be sent to the follow e monthly invoice per i and Dual Bi ing ude the address, and Trig shah occur as and invoicing policy. address: PAYMENT INSTRUCTIONS: All payments by Customer under this agreement will be remitted to: Bank ABA (Wires): ABA (ACH, non-wires): Account Name: Account No.: Beneficiary Name: Sank of America 124001-45 North, Suite 100 Houston, TX 77060 026009393 111000012 Liberty Power Holdings 4426295864 Liberty Power Holdings Not later than ten (10) business day; following the receipt of Customer's Actual Usage, Supplier will deliver to Customer an invoice setting forth the charges ue for the preceding Brll'ing Cycle .In the event Supplier does not receive Customer's Actual Usage, Supplier reserves the ' t to use Anticipated usage in place of Actual Usage, for an individual or group of accounts for the calculations in led above. In the event that Supplier issues an invoice using Anticipated Usage, Supplier will notify Customer and I charge or credit Customer for any adjustments no later than ten (10) business days following Supplier's receipt of the Ac?ual Usage. For any applicable Load Zone, the above charges will only apply when all of Customer accounts have been enrolled by the local utilities. I?! Page 1 of 2 SUE-04-2009' SPECIAL PROVISIONS: CONTRACT PRICE : means the en price, including capacity, ancillary services, losses, Network Transmission, State required RPS (Renewable Portfol'ro S ndards), ARR (Auction Revenue Rights), generation, applicable gross receipts tax, and any other miscellaneous charges including, but not limited to TSO/RTO, or PLiC fees). The price does not include taxes other than gross receipts tax, regul ted charges from the utility including, but not limited to, utility transmission and distribution charges, customer accou it fees or other utility transition charges. BANDWIDTH: Wth respect to this Transaction, consumption bandwidths will be +/- twenty-five (25'%) percent versus the last twelve months of historical cons mption, as specified on attached Schedule 1. Bandwidth shall be administered on a monthly basis against kWh usage onl on an aggregate basis per utility and zone. Liberty Power HoideW LLC Liberty Power Maryland LLC Liberty Power District of Columbia LI?C LF% LLC Liberty Power New York LLC (SUPPLIER) Signed By: (SUPPLIER) Printed Name: Title: Date - - Hampden Township (CUSTOMER) Signed By: CUSTOMER) Printed Name: M ti t a//c S +/'A- Title:' tvt n Date: d Page 2 of 2 Customer SCFE-04-2009 a ? N rt Cl. M E CL S = L c 16 s ri W o ? W +? _ 0. u 4 en 0 0 Oi a 4 t m t v ?r 5 m? L' M ? i C. E p E L1 u o? CL L m A 0 o t- c cc a n E a i E F ? Z C y «" E I O W V Vq W A Q ?t O m W CL U th -. Ti .i .• ..1 M M .i M .i + • ?/ .r ...1 ..1 M M M M M .-1 r/ .i M M M .r .i .-• .• M M M M N M .r M ..r M ..f M ..1 M .r M N M rt M +r M .-r M +r M i m 0 0 0 O O O ? ? E 0 Q? co 0 0 AQ. V: - 0 00 O 0 0 0 0 0 0 0 O C 0 0 O O 000 O O 0000 O 0 0 O 0 0 0 0 0 0 0 0 0 0 0 0 0 0 . ?,- N W A - W r0 r0 4 W to W m 1 - A 10 A A {p CO W O IG m W m m W m W A W C L C C L 2 a d L C C L G C C C L C G C C ' ooo o. ao oooa ooo oooa o o o o o a o o a o o i- ooo o oo oooa oo- coo o o o a o o o a o o a a -O ': .N N N - N NN N N N!V N r r r r N N N • N fV N N • r i• N i N r N N r N r N N r N N N N r N r ,4 u r r Y V Q?a i t Y r Y W V U ? ° U V cag V -V U aoan ? .? U ° U 8 U V a V n V o V 0 0 V 0 . a o a ???' oao o ao aoooa oo oaaa o o o o o a o o o o o 0 000 0 oaoo n o 0 0 n a 0 0 0 0 0 0 0 0 0 0 0 - N • L L C N • C r N N • N • - ? G C N N N •• t C N N N N r• r C C N r C N r C • C N r L N t C N r G N r L N r C N C N r C N C N r C ... ?nrr r + n •?inn ? m nnnn n ? n n n n n n , n 0 n nWCO m v n a au' ?• ? 'g '" rNi .~+ o N. v .o. o . Or ?bm ? OG? N N O?Nm K N m o a lV p1 U! L! - ti.rN + I NK .+ ff1 .?m. ?O NM ? .Nr ? ? l?lf m m M m YMf tN•1 n a ,,,• 1 ! N to O N N . r N .a t N .4 .+ N .+ _ ', Of r0 H m.+ mR N I NM fl NO NO N lo ' ri . - m n tD 1Jl ; F P H ,` 1,- r~+r N R uoi o 51 a U9 ?i m a 51 2 5i . n n p to c KOK ?'00 00 - A 0 O T n n n . -- H N ri. N 1 14 .4 . 4 .• .1 N .1 .f .d ./ 14.4 .i N .4 .f .t .i K H l . .i. .i K .A .i . 1 .? -? ao?.a a aa <a `a n.aa aaa a ? a d a a a ?a a a a D D D D D D t9 W V W g Z d O 6 g rt . ° O O 0 Or N QQpQ O 0 - .t .a ' nt H .? H I .• .r Min y? * a # J s O PE N ER` n F ? a V A m c. i m , a v C E n K l r I a . N a l M O N 9) a a a 4 a 0 aCi w M ? E i Schedule A Fee Schedule Intergovernmental Cooperation Agreement for the Central Pa Energy Partnership Joint Purchasing Agreement for the Central Pa Energy Partnership Utility Bill Auditing and Processing: Commercial Accounts - Natural Gas/Electric Per Account Cost of service (mo. Utility bill) <$250 $2.20 >$250 but <$750 $4.40 >$750 $6.60 Commercial Contract Accounts: (Bulk purchase or negotiated price accounts) Per account/Rate Classes Electric GS1 @ <$1,000/mo Schedule above Electric GS 1 @ > $1,000/mo $8.33 Electric GS3/LP all N.G. Liquid Fuels $12.50 Sponsorship, Management and Contract Negotiations (Min-Max Fees) All Electric (min) Rate Classes Nat. Gas /CT) and all Electric (max) Rate Classes Nat. Gas (IS 2/LFD) (max) Liquid Fuels (Diesel, Gas line, Heating Oil) (max) Performance Fees - Cost Savings (Max Fees) Natural Gas Delivery - T riff comparison or Market based pricing Nat Gas Commodity - Ta iff comparison Electric Generation - Tariff comparison Performance Fees - Utili Saving money on the bill of Diff: Tariff vs. Cor. of Refund for bill error Bill Savings ict w/Utility or Vendor over-reads, sales tax % mo contract 1.8% 2.5% 4.0% 4.0% 30.00% 30.00% Monthly or quarterly mailing of original bills for client or auditors i GS 1, GS3, LP = Elec. Ra le Classes NT, CT, IS92 = N.G. Ra Classes $25/per mailing Effective 11/22/10 1500 COCHRAN ROAD, SUITE 1003, PITTSBURGH, PA 15243 (412) 571-0850 F (412) 571-9121 (e) benchmark&W-yerizon.net 5 EXHIBIT F Y ed`? Hampden Township hoard of Cttmmi.%ioners '.. Anvn 11. Bicaistca'k, I In --sick-111 Jolts It l'lutnk?:. Irc Presid('111 - i)c» lici It. MCiZlnin. ARSt. tick rclan• KCNl(I111 1. 1=tirow nlatltivc 1'. tiik'os '. Township Manager Mid Ind I i. ao?ycrt 'i November 5, 2010 Benchmark Energy Soluti ns,1Mc j 107 May Avenue, Suite 30 Bridgeville PA 15117 Bear Bill, This letter is to advise yo during the November 3,d2010, Hampden Township Board of Commissioners meeting, he Board voted to terminate its contract with Benchmark Energy Solutions. This decision as a result of a multitude of problems that Hampden Township has encountered over the pas: year which unfortunately continue to go unresolved. Please understand this decision was not an easy one but our confidence that Benchmark can continue to handle the townships electricity purchasing and billing needs remains uncertain. As an entity which serves the public and is held accountable for its services we must ensure our vendors are serving the wnsttip above distinction. This termination will be ?fective at the end of our contract with Liberty Power. I wish you luck in your future endeavors. Sincerely, 3 'p Ma2}ager 230 S. Sporting Hill Road Mechanicsburg. PA 17050-3097 - F-Mai1 hanVden iP- Website uwrwjWDpdentowrtsltip us FAX(717)761-n67 TDD (71'7) 2141162 Administtatio" (717) 761-0119 (717) 761-5343 Police (717) 761-2609 Recreation (717) 761-4951 Uriti6es (717) 909-7145 1 EXHIBIT 1 BENt"H.NLA. ZX EnergySal NONE, Inc. April 14, 2011 Mr. Michael Gossert, Mar Hampden Township 230 S. Sporting Hill Road Mechanicburg, PA 17050 Re: Intergovernmental gooperation Agreement/Agreement for Utility Information and Management Services (the "Agreements') Dear Michael: You have ceased forty g or having the utility bills forwarded to us for the purposes of auditing, consolidated billing, and billing for the monthly es in 2010 before the Liberty Power contract expired. Benchmark has calculated and attached the fees owed to us for th remaining full terms of the Electric utility contract based upon your historical and estimated usage. While performin these calculations, we also noted, and added, the monthly fees billed to Hampden Township, but not yet paid. Attached is the Invoice sh the total amount due for the full term of the Contract that Benchmark negotiated and procured for you. The Schedule of Fees is attached and the calculations are plainly and clearly set forth on the attached schedule. The Electric Program Fees where 1.8% for Sponsorship, Management and Negotiation, and 21.6% for Performance fees.. The Natural G Program Fees where 2.5%4.01/o for Sponsorship, Management and Negotiation, and 20%-30% for Performance fees. Thy current and prior Tariffs are available at each utility's website or go to the PUC Amount due: Electric Contracts and billing .......... $28,499.04 I As stated in the docume ts referenced above, you remain liable for the fees due to Benchmark under the Agreements for the life of the Con t Benchmark negotiated and procured for Hampden Township. You have received the benefit of our work throughou this period (see paragraph 8(d) of the IGCA, which notes your obligation to pay Benchmark's fees over the life of the Energy and Services Contracts). We look forward to your immediate payment. If you feel the fees should be different based upon your calculations from the actual bills, please forward the spreadsheet calculations and copies of the actual utility bills by type and by month for our review. We look forward to receipt of the amount due. very truly yours, William ch President Attachments cc: Steven Petrikis, Esq. 500 Cochran Road, Suite 1.003, Pittsburgh, PA 15243 T: 41 -571-0850 F: 412-571-9121 E: benchmark33Qverizon.net EXHIBIT 1 H V C a ? fi 'd V« V 41 ? w ? N ? N R y O U N O H W a fi m T C C m c i a a - O a O 3 67 'a6 L C .O '. H tC0 a+ O ? j a+ G a m I m .?,+ "U- u a wo ocol `° c p a m v y o 0 3 c Q iO.t V ti ? d ? II C (yy a of ?3 ? ? ? ? II ? o a v ?Vy II m 0. ? .p c0 p 'ta O to ?v 3 tp ? Gm H ,. a ?? a ro O. 0 O JZ d I O c ? a U m U a?' c'°i a ti a A O U d c_ n u c m e? 'o ? +u a s ti9 Q? I N v aQ ^ m d +c+ m p> zs n 3n a a' v ro v a c ?+ ? o = W a v o o ie g as +a+ -+ I a " i, N 4 d v Q} G0.. 42 i5, .?.'t ? LO O a +' L w v+ R d m m.G} Q aui s > y 'O 'CS ? a+ +' O 'O A a N y Gv ? d y u I, c '° u cc L '° a y aw°-' o E ? ib a u s ° c? o ? y ? V ` RS a O y-Oj i:r u w u Q N R. .D O r ? d a L G? vt 7 O N R °y ? Y N - m ro C? E 0 Y = a H a d 1° u n a 4 U a ?' ', iL+ in G d 7 19 cu 'm u r aim «. a a a C c Y" '? r' i?o v c f .. O 3 c J o ?= o a ,= c c s +++ c v o Y? o g ,? g a ,.? 'S 0? w m ? s CL CL CL m 4 v r a o v u m Y mad 0 a oc o c E d y m a '$ s ,? E o c a z 3 0 o S > 'g a ro '? c 14 v wr-t CL aci c a a u u ss c C p C 7 ? d. M. O y u W m 0 0 C 0 y Y y W s C u 'L a'C.. m m m E U LA ,z tv y ° 0 aci Co t a, c m L L N C yy _Q, O a ? ? 'i 00 •? flr a1 ya ? ? ry I tr1 er r. V I co Q to ? Y m G m I S Q O r° I-a 3 ? Q N 1JT LL 00 S.n..m S rv O $.S N N m O b O N 0 0 0 H ? -O n µ N m r Omf M .^i r V Y?p z N p C N? ?? m r• h T N m O ? ui v. m rti m m ' w `,$ t. e e a e m ry T en 8 p? rp. tW? ? M1W Q e m IA I'? W N u ry OpN N <6m µ ? t ry N? ? N Jai N i ?O iyy{u? <t !Y am p LLi6G? ' 4 Y 6 a, C v 'a O 7 v a m N E .o A 0 a c b ? d c Y1 `o c 3 `v p r m ? V C y N aC1 d £ d {?} LL N Y N Y . y y d d C A T ? Schedule A Fee Schedule Intergovernmental Cooperation Agreement and Joint Purchasing Agreement Utility Bill Auditing and Pr ing Commercial Acco;' - 1 gas/Electric Cost of service (mo utility bill) < $250 >$250 <$750 >$750 Commercial Contract Aoc unts (Bulk purchase or nego ' d price accounts) Per account / Rabe Clam s Electric GS1 @ < $1,0001mo. Electric GS1 @ > $1,000/mo. Electric GS3 /LP all Nat Gas, Liq Fuels Sponsorship, Manageme and Contract Negotiations (Max Fees) Rate Classes Nat Gas (N (CT) and all Electric Rate Classes Nat Gas (1 2 / LFD) Liquid Fuels (Diesel, Gas line. Heating Oil) Performance Fees - Cost Savings (Max Fees) Nat Gas Delivery - Tariff mparison or Market based pricing Nat Gas Commodity -Tar comparison Electric Generation- Tariff oarison Performance Fees - Utd' Bill Savings Saving money on the bills % of Drff. Tariff vs Contract w/Utility, or Vendor % of Refund for bill e , over-reads, sales tax Monthly or quarterly madirig of original bps for client or auditors GS1, GS3, LP = EL Rate Classes NT, CT, LFD, IS#2 = NG Rate Classes Per Account $2.20 $4.40 $6.60 Schedule above $6.33 $12.50 % mo contract 2.5% 4.0% 4.0% 30.00% 30.00% $251per mailing Effective 10/01/07 Edited 10/01/09 Edited 11/23109 VERIFICATION I hereby verify that the facts set forth in the foregoing COMPLAINT are true and correct to the best of my knowledge' information, and belief. This Verification isl, made surject to the penalties of 18 Pa.C.S. 4904 relating to unswwom falsification to authorities. Date: I'Aaw SHERIFF'S OFFICE OF CUMBERLAND COUNTY ? Ronny R Anderson -Q= iz Sheriff rncz+ c.. -M Jody S Smith Cn r- _ Chief Deputy - -<? Richard W Stewart > - a?. Solicitor C "" OFD 'E' -EMFF MCD = 4 c Benchmark Energy Solutions, Inc. vs. Keith O. Brenneman (et al.) Case Number 2011-9396 SHERIFF'S RETURN OF SERVICE 01/04/2012 03:30 PM - Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on January 4, 2012 at 1530 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Hampden Township, by making known unto Terri Noll, Finance Director for Hampden Township at 230 S. Sporting Hill Road, Mechanicsburg, Cumberland County, Pennsylvania 17050 its contents and at the same time handing to her personally the said true and correct copy of the same. TIM CK, DEPUTY 01/06/2012 02:50 PM - William Cline, Corporal, who being duly sworn according to law, states that on January 6, 201" at 1450 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Keith O. Brenneman, by making known unto Susan Matrazi, Office Manager for Snelbaker & Brenneman, PC, 44 W. Main Street, Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same time handing to her personally, the said tru and correct copy of the same. WILLIAM CLINE, DEPUTY SHERIFF COST: $64.44 January 11, 2012 SO ANSWERS, RON R ANDERSON, SHERIFF (C! Conn<ySi?i;e She!df. Tziaos;;!t. Ine. r , Keith O. Brenneman, Esquire Attorney ID No. 47077 Snelbaker & Brenneman, P.C. 44 West Main Street Mechanicsburg, PA 17055 (717) 697-8528 Solicitor for Hampden Township BENCHMARK ENERGY SOLUTIONS, INC., Plaintiff V. C'7 rv C 3 (J., rv 7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-9396 CIVIL TERM HA:MPDEN TOWNSHIP, Defendant CIVIL ACTION - LAW NOTICE TO PLEAD TO: Benchmark Energy Solutions, Inc., Plaintiff and Steven Petrikis, Esquire Rachel D. Felton, Esquire Metz Lewis Brodman Must O'Keefe, LLC 11 Stanwix Street, 18th Floor Pittsburgh, PA 15222 You are hereby notified that you have twenty (20) days in which to plead to the enclosed Preliminary Objections or a Default Judgment may be entered against you. SNELBAKER & BRENNEMAN, P. C. LAW OFFICES SNELBAKER & BRENNF_MAN, P.C. By: _ 1 h,-, Keith O. Brenneman, Esquire 44 West Main Street Mechanicsburg, PA 17055 Date: January 24, 2012 (717) 697-8528 Solicitor for Defendant Hampden Township 7, Keith O. Brenneman, Esquire Attorney ID No. 47077 Snelbaker & Brenneman, P.C. 44 West Main Street Mechanicsburg, PA 17055 (717) 697-8528 Solicitor for Hampden Township BENCHMARK ENERGY SOLUTIONS, INC., Plaintiff V. HAMPDEN TOWNSHIP, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-9396 CIVIL TERM CIVIL ACTION -LAW PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Defendant Hampden Township, by its Solicitor, Keith O. Brenneman, submits these Preliminary Objections to Plaintiffs Complaint as follows: 1. Plaintiff initiated this action against Defendant by Complaint filed December 27, 2011. 2. Plaintiff raises claims in its Complaint for breach of contract, unjust enrichment, account stated and quantum meruit, each associated with Defendant's alleged failure to abide by the terms of an Agreement for Utility Information and Management Services and pay Plaintiff for services allegedly provided. 3. Plaintiff alleges that on or about November 5, 2010, Defendant sent a letter to Plaintiff terminating its contract with Plaintiff due to a multitude of unresolved problems associated with L LAW OFFICES AW OF & Plaintiffs services. (See Complaint, Paragraph 25 and Exhibit G thereto.) SNELBAK _R BRENNEMAN, P.C. 4. On April 14, 2011, Plaintiff sent a letter to Defendant demanding payment (the "Demand Letter") in the amount of $28,499.04, which amount purports to be fees due for services Plaintiff provided on behalf of Defendant. (See Complaint, Paragraph 30 and Exhibit H thereto.) 1. Preliminary Objection Pursuant to Pa.R.C.P. 1028(a)(4) Legal Insufficiency of Pleading (Demurrer) 5. The averments of Paragraphs 1 through 4, above, are incorporated by reference herein. 6. Count III of Plaintiffs Complaint purports to set forth a claim on the basis of an account stated. 7. Plaintiff alleges that through the Demand Letter, Plaintiff informed Defendant of a balance due, to which Defendant never responded. 8. Plaintiff fails to allege that there was any running account between Plaintiff and Defendant. 9. Plaintiff fails to allege that an account had been rendered upon or to Defendant and that Defendant has assented to the account. 10. Plaintiff has failed to allege a promise by Defendant to pay a stated amount which the parties have expressly agreed was owed. 11. Plaintiff has failed to allege agreement by Defendant in the correctness of the account. 12. Plaintiff has failed to allege a subsisting debt arising from either a pre-existing account or a course of dealing between the parties. 13. Plaintiff has failed to allege that monthly statements were mailed to Defendant LAW OFFICES SNELBAKER & BRENNE.MAN. F.C. setting forth the details of the account. 2 14. For the above reasons, Count III of Plaintiffs Complaint fails to set forth a cause of action upon which relief may be granted. II. Preliminary Objection Pursuant to Pa.R.C.P. 1028(a)(3) Insufficient Specificity in Pleading 15. The averments of Paragraph 1 through 14, above, are incorporated by reference herein. 16. For the reasons set forth in Paragraphs 8 through 13, above, Plaintiffs Complaint insufficiently pleads requisite facts necessary to support a claim based upon an account stated basis. WHEREFORE, Defendant requests this Court to grant Defendant's Preliminary Objection and dismiss Plaintiffs Complaint. SNELBAKER & BRENNEMAN, P. C. By: Keith O. Brenneman, Esquire 44 West Main Street Mechanicsburg, PA 17055 Date: January 24, 2012 (717) 697-8528 Solicitor for Defendant Hampden Township LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 3 CERTIFICATE OF SERVICE I hereby certify that I am on this date serving a true and correct copy of the foregoing Memorandum upon the attorneys for Defendants by sending the same by regular first-class mail, postage paid, addressed to: Steven Petrikis, Esquire Rachel D. Felton, Esquire Metz Lewis Brodman Must O'Keefe, LLC 11 Stanwix Street, 18th Floor Pittsburgh, PA 15222 SNELBAKER & BRENNEMAN, P.C. By: Keith O. Brenneman, Esquire 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717)697-8528 Solicitor for Hampden Township Date: January 24, 2012 LAW OFFICES SNELBAKER & BRENNEMAN. P.C. S.t a Metz Lewis Brodman Must O'Keefe LLC Steven Petrikis, Esquire Pa. I.D. No. 34426 Rachel D. Felton, Esquire Pa. I.D. No. 205929 11 Stanwix Street, 18th Floor Pittsburgh, Pennsylvania 15222 Phone: (412) 918-1100 Email: spetrikis@metzlewis.com rfelton@metzlewis.com Attorneys for Plaintiff ARBITRATION IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BENCHMARK ENERGY SOLUTIONS, INC., Plaintiff, vs. HAMPDEN TOWNSHIP, Defendant. FED-C FIGF Lii THE PROTHONOTARY 20-12 FEB -9 AM I I: 2B CUMBERLAND COUNTY PENNSYLVANIA CASE NO. 2011-9396 CIVIL NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within TWENTY (20) days of this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 34 S. Bedford Street Carlisle, Pennsylvania 17013 717-249-3166 ti, l Metz Lewis Brodman Must O'Keefe LLC Steven Petrikis, Esquire Pa. I.D. No. 34426 Rachel D. Felton, Esquire Pa. I.D. No. 205929 11 Stanwix Street, 18th Floor Pittsburgh, Pennsylvania 15222 Phone: (412) 918-1100 Email: spetrikis@metzlewis.com rfelton@metzlewis.com Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BENCHMARK ENERGY SOLUTIONS, INC., Plaintiff, vs. HAMPDEN TOWNSHIP, Defendant. ARBITRATION CASE NO. 2011-9396 CIVIL AMENDED COMPLAINT IN CIVIL ACTION Plaintiff, Benchmark Energy Solutions, Inc. (`BESI"), by its attorneys, Metz Lewis Brodman Must O'Keefe LLC, files this Amended Complaint in Civil Action: THE PARTIES 1. Plaintiff, BESI, is a Pennsylvania Corporation with an office at 1500 Cochran Road, Suite 1003, Pittsburgh, Pennsylvania 15243. 2. Defendant, Hampden Township, is a municipality with an office located at 230 S. Sporting Hill Road, Mechanicsburg, Pennsylvania 17050. JURISDICTION AND VENUE 3. This court has original jurisdiction of this matter pursuant to 42 Pa.C.S. § 931. 2 1 ? 4. Venue is proper in this Court pursuant to Rules 1006 and 2103(b) of the Pennsylvania Rules of Civil Procedure. FACTS 5. BESI is an energy consulting firm and is in the business of advising and assisting government entities and businesses in the collective purchase of energy supplies and utility services. 6. On December 3, 1999, the City of Harrisburg ("City") and other local government agencies entered into an Amended and Restated Intergovernmental Cooperation Agreement ("MCA"). A true and correct copy of the IGCA is attached hereto as Exhibit A. 7. Pursuant to the IGCA, the City and other local government agencies engaged BESI to act as their energy consultant in the purchase of energy supplies and related energy management services and to advise them in the collective purchase of energy supplies and services. 8. BESI's responsibilities under the IGCA included identifying opportunities to reduce energy consumption and costs, soliciting and negotiating prices with energy suppliers and service vendors, and providing purchasing related services to effect cost reductions in the purchase of energy supplies and services. 9. Under the IGCA, Benchmark was to be paid a performance fee for its services, costs, and expenses over the life of the energy supplies and services' contracts that it negotiated on behalf of the City and the local government agencies. 10. The IGCA allowed for other local government agencies to join the IGCA at a later date by executing a Joinder Agreement. 3 4 11. On April 2, 2009, Hampden Township executed an IGCA Joinder Agreement and joined the IGCA. A true and correct copy of the IGCA Joinder Agreement is attached hereto as Exhibit B. 12. On March 1, 2009, Hampden Township executed an Agreement for Utility Information and Management Services ("MSA") with BESI. A true and correct copy of the MSA is attached hereto as Exhibit C. 13. Under the MSA, BESI agreed to advise Hampden Township in the collective purchase of energy supplies and services, seek competitively priced electricity generation, and process utility bills. 14. In turn, Hampden Township agreed to pay BESI a Sponsorship and Management Fee, a fee for Monthly Billing for each Utility Account, and a Performance Fee as set forth in the Fee Schedule ("Fees"). 15. The MSA had an initial term of three years and thereafter automatically renewed for one-year terms unless either party provided written notice of its intent to terminate the MSA at least sixty days in advance of a renewal date. 16. The MSA could also be terminated for cause if either party breached the MSA after being provided with written notice of the specific alleged breaches and an opportunity to cure. 17. On or about August 5, 2009, BESI and Hampden Township entered into an agreement with Seven-Utility Management Consultants, Ltd. ("SUMC") (the "SUMC Agreement") whereby SUMC was authorized to obtain offers from energy suppliers to provide electric generation services to Hampden Township. A true and correct copy of the SUMC Agreement is attached hereto as Exhibit D. 4 1 18. On or about November 9, 2009, Hampden Township entered into a Master Sales and Sales Confirmation Fixed Price Product Agreement with Liberty Power Holdings, LLC ("Liberty Power") for the purchase and receipt of electric energy services (the "Liberty Power Contract"). A true and correct copy of the Liberty Power Contract is attached hereto as Exhibit E. 19. BESI negotiated and secured the Liberty Power Contract for Hampden Township. 20. Under the Liberty Power Contract, Hampden Township was able to receive electricity generation at a rate per kilowatt hour that was substantially less than Pennsylvania Power and Light's ("PPL") general Tariff pricing. PPL served as the electric distribution company and was the electric utility which would have otherwise serviced Hampden Township with electric generation. 21. In December of 2009, BESI agreed to amend the Fee Schedule under the MSA that lowered the Sponsorship and Management Fee and Performance Fee that Hampden Township was to pay to BESI for its services. The fee for Monthly Billing for each Utility Account remained the same. A true and correct copy of the Fee Schedule is attached hereto as Exhibit F. 22. Per the Fee Schedule, BESI was to be paid a Sponsorship and Management Fee of 1.8% and a Performance Fee of 21.6%. 23. The term of the Liberty Power Contract was from the first utility transfer date occurring after January 1, 2010, through the first utility transfer date occurring after December 31, 2010. 24. Upon information and belief, Hampden Township received electric generation services under the Liberty Power Contract between January of 2010 and January of 2011. 5 25. On or about November 5, 2010, Hampden Township sent a letter to BESI wherein Hampden Township stated that it was terminating its contract with BESI effective at the end of the Liberty Power Contract. Although Hampden Township noted a "multitude of problems," no problems were specified and no opportunity to cure was provided. A true and correct copy of the Termination Letter is attached hereto as Exhibit G. 26. From January of 2010 through December of 2010, BESI processed Hampden Township's electric bills issued by PPL, including the electric generation accounts under the Liberty Power Contract. Such processing included receiving, auditing, consolidating, and e- mailing to Hampden Township all of the electric distribution and generation bills for Hampden Township. 27. After December of 2010, BESI was unable to process Hampden Township's electric utility bills because Hampden Township stopped PPL from forwarding its electric bills to BESI and prevented BESI's performance of certain obligations under the MSA. 28. Hampden Township stopped PPL from forwarding its electric generation bills to BESI even though it continued to receive services under the Liberty Power Contract. 29. Despite receiving services under the Liberty Power Contract and MSA, Hampden Township did not pay BESI the full amount of the Fees due to BESI between January of 2010 and January of 2011. 30. On April 14, 2011, BESI sent a letter to Hampden Township demanding the payment of $28,499.04 for the Fees due to BESI for the services which BESI performed in connection with the Liberty Power Contract pursuant to the IGCA and MSA ("Demand Letter"). A true and correct copy of the Demand Letter is attached hereto as Exhibit H. 31. Hampden Township did not respond to the Demand Letter. 6 COUNT I: BREACH OF CONTRACT 32. BESI incorporates Paragraphs 1 through 31 as if fully set forth herein. 33. BESI and Hampden Township were parties to the MSA. 34. Among other things, the MSA required Hampden Township to pay BESI certain Fees. 35. BESI fully and completely performed its duties under the MSA. 36. Hampden Township breached the MSA by failing to pay BESI certain Fees due under the MSA. 37. As a direct and proximate result of Hampden Township's breach of the MSA, BESI has suffered damages. WHEREFORE, Benchmark Energy Solutions, Inc., respectfully requests that judgment in excess of $28,499.04 plus continuing and additional interest, costs, and attorneys' fees be entered against Defendant Hampden Township. COUNT II UNJUST ENRICHMENT 38. BESI incorporates Paragraphs 1 through 37 as if fully set forth herein. 39. A benefit was conferred on Hampden Township by BESI, when BESI secured the Liberty Power Contract for Hampden Township and BESI processed Hampden Township's electric bills, including the electric generation bills under the Liberty Power Contract. 40. Hampden Township appreciated the benefit conferred on it by BESI as Hampden Township received monetary savings and services from BESI's work. 41. Under the circumstances, it would be inequitable for Hampden Township to accept and retain the benefits of BESI's services without payment of value. 7 WHEREFORE, Benchmark Energy Solutions, Inc., respectfully requests that judgment in excess of $28,499.04 plus continuing and additional interest, costs, and attorneys' fees be entered against Defendant Hampden Township. COUNT III QUANTUM MERUIT 42. BESI incorporates Paragraphs 1 through 41 as if fully set forth herein 43. BESI performed services for Hampden Township by securing discounted electric generation prices for Hampden Township through the Liberty Power Contract and by processing Hampden Township's electric bills, including the electric generation bills under the Liberty Power Contract. 44. Hampden Township accepted the services of BESI. 45. BESI did not render its services gratuitously. 46. BESI is entitled to the value of the services it performed for Hampden Township. WHEREFORE, Benchmark Energy Solutions, Inc., respectfully requests that judgment in excess of $28,499.04 plus continuing and additional interest, costs, and attorneys' fees be entered against Defendant Hampden Township. Date: February 6, 2012 Respectfully submitted, METZ LEWIS BRODMAN MUST O'KEEFE LLC By: ? (l-' Steve Petrikis, Esq. Pa. I.D. No. 34426 Rachel D. Felton, Esq. Pa. I.D. No. 205929 11 Stanwix Street, 18th Floor Pittsburgh, PA 15222 (412) 918-1100 Attorneys for Plaintiff 8 AMENDED AND RESTATED INTERGOVERNMENTAL COOPERATION AGREEMENT This AMENDED ARID RESTATED INTERGOVERNMENTAL COOPERATION AGREEMENT is made and entered into as of the 3rd day of December,. 1999 by and among THE CITY OF HARRISBURG., a municipal corporation organized under the laws of the Commonwealth of Pennsylvania and operating pursuant to the Optional Third Class City Charter Law, Act of July 15,1957, P.L. 901, as amended, 53 P.S. §§41101, et seq., with its principal office located at the Rev. Dr. Martin L. King, Jr., City Government Center, 10 North Second Street, Harrisburg, Pennsylvania 17101-1677 (the "City") and each one and the several LOCAL GOVERNMENTS (each, an "Agency") which shall have joined in this Agreement by the execution and delivery of a Joinder Agreement, in the form attached hereto as "Exhibit A", as the same shall; from time to time, be valid and in effect and not withdrawn or rescinded. a., WITNESSETH: WHEREAS, Federal and Commonwealth laws, now .in effect, have deregulated the electric and natural gas utility industries, thereby affording Agencies the opportunity to achieve cost reductions through joint purchasing in volume; and WHEREAS, the City's Central Energy Office (the "CEO") has agreed to sponsor and oversee programs and retain consultant(s) for itself and the Agencies in the purchase of energy supplies and related energy management services including, but not limited to, electricity, natural gas, steam and liquid fuels and the transmission, transportation or other delivery thereof, and the provision of energy resource conservation management services, products and equipment related thereto (the "Energy Supplies and Services"); and WHEREAS, the City has designated Benchmark Solutions, Inc. as the Energy Consultant (the "Energy Consultant") to. advise the Agencies in the collective purchase of Energy Supplies and Services; and WHEREAS, the Intergovernmental Cooperation Act, Act ofDecember.19,1996, P.L. 1158, No. 177, provides that two or more local governments may jointly cooperate in the exercise or in the performance of their respective governmental functions, powers or responsibilities; and further that local govemments so cooperating shall enter into joint agreements as may be deemed appropriate for those purposes; and WHEREAS, it is the desire of the signatories hereto to enter into this Amended and Restated Intergovernmental Cooperation Agreement to facilitate the acquisition of Energy Supplies and Services and to delegate to the CEO certain duties for the purposes herein set forth; and NOW, THEREFORE, in consideration of these premises and intending to be legally bound hereby, the parties agree as follows: 1. Recitals The recitals to this Agreement are incorporated herein by reference and shall, for all purposes, be part of this Agreement. 2. Participants The following types of Local Governments or Political Subdivisions are deemed to be and may become Agencies, permitted to participates in this Agreement: counties, cities of the second class, second class A and third class, boroughs; incorporated towns, townships and school districts and any other similar general purpose unit of government created by the Pennsylvania General Assembly after July 12, 1472, together with municipal authorities, redevelopment authorities, housing authorities, parking authorities and industrial development authorities, 3. Desienation of Consultant The CEO has designated Benchmark Solutions, .Inc., as an Energy Consultant to advise the Agencies in the collective purchase of Energy Supplies and Services. The Energy Consultant shall have no authority to act on behalf of the Agencies, without the prior express written approval of each Agency, or to act as an aggregator, market aggregator, broker -or marketer as defined in 66 Pa. C.S. §§ 2803. 4. Serviga Products and Equipment The services, products and equipment which are the subject of this Agreement include, but ere not Iftnited to, the following: L Electricity, natural gas, steam and liquid fuels, and the transmission, transportation and local delivery or distribution services related thereto; and b. Energy resource conservation management services, products and equipment. 2 Duties of the Enerzy Consultant The Energy Consultant shall: a. Maintain an accurate database for the facilities and the energy supplies of each Agency; b. As and where appropriate, identify opportunities to reduce energy consumption and costs, such as energy resource conservation measures; C. Prepare standardized forms, contracts and other documents for the bidding and purchase of Energy Supplies and Services: d. Upon the specific request of the CEO.. and with the prior express written approval of each participating Agency: (1) Formulate relevant standards or specifications for the Energy Supplies and Services upon which the Agencies may receive bids; (2) Identify and develop alternative bidding procedures and options related to such Energy Supplies and Services; (3) Review the bids submitted and make recommendations to assist the Agencies in determining the lowest responsible bidder of the Energy Supplies and Services when competitive bidding is required- (4) Solicit quotations and negotiate prices with Energy Suppliers and Service vendors when competitive bidding is not :required; e. Notify all participating Agencies of the receipt of valid bids and/or solicited or negotiated pricing; £ Assist the CEO's financial advisors with the sbucu= of any 1~inancang, as set forth in §8 hereof, for the purchase of.Energy Supplies and Services and the timing of any financial benefit for the Agencies.; and 8. Provide such other bidding and purchasing related services as necessary to effect cost reductions in the purchase of Energy Supplies and Services and to otherwise accomplish the goals of this Agreement. 6. Ene= Proposal Upon receipt of Bids or negotiated prices for Energy Supplies and Services, the Energy Consultant will submit an Energy Proposal and Sze relevant Energy Contract to eacb participating. Agency for its review. 71e Energy Proposal will contain (i) the recommended opportunities to reduce energy consumption and costs through an Energy Contract, (ii) a summary and analysis of the bids or quotes received taking into consideration the savings, after deducting reasonable expenses and the costs of implementing the bids or quotes, (iii) a recommendation from the Energy Consultant on the most responsible bid or quote which results in the greatest savings to the. Agencies, (iv) all relevant business terms pertaining to the Energy Contract recommended, and (v) the time frame for notification and written acceptance to the CEO and Energy Consultant of the Energy Contract and Energy Proposal. 7. General Provisions a. The Energy Consultant shall neither issue a bid, solicit quotations or negotiate for Energy Supplies and Services or execute any contract, agreement or other document on behalf of the Agencies without the prior express written consent of the CEO and the Agencies who wish to participate in such bid, solicitation or negotiation; b. The Energy Consultant shall have no authority on. behalf of any of the Agencies; C. Each Agency shall retain its individual power and authority to accept or reject any agreement(s) presented by the CEO for the purchase of Energy Supplies and Services, as it shall determine, and to execute and deliver all contracts, agreements or other documents in connection therewith; CL No Agency shall *be liable for any cost, flee or expense which is not specifically set forth in the Energy Proposals or Energy Courts as disclosed by the Energy Consultant and/or the CEO; and C. No Agency may negotiate, bid for or contract with any supplier or vendor for Energy Supplies and Services for a period of 180 days following the date upon which said Agency has agreed to participate and be included in the solicitation of bids or quotations or the negotiation of prices for Energy Supplies and Services. 8. r"ieancial Arrangements a. The City anticipates that municipal bonds or Imes (the "Financing'] will be issued for the purpose of funding the purchase of Energy Supplies and Services and the costs related thereto for each of the Agencies. b. Each Agency which has authorized, a=pted and executed an Energy Contract under this Agreement, shall snake timely payments to the CEO for the Energy Supplies and Services, and any debt service payments and the Fees, Costs and Expenses that are identified in its respective Energy Proposal and the Financing documents. The payments by each Agency shall be made in such amount; .on such basis and in such intervals as necessary for the CEO to pay each Agency's share of the Energy Supplies and 4 f, Services and any debt service payments and Financing fees associated thereto and any other costs and fees for services mutually agreed upon between the CEO and the Agency. C. The Agencies acknowledge and agree that the CEO will he paid a program development and management fee for services, costs and expenses associated with this Agreement, which will be payable at the settlement of the Financing from the proceeds of the Financing or over the life of the Energy Supplies and Services Contract. d. The Agencies acknowledge and agree that the Energy Consultant will be paid a performance fee for the services, costs and expenses associated with this Agreement, which will payable at the settlement of the Financing from the proceeds of the Financing or over the fife of the Energy Supplies and Services Contract. Confidential Information The Agencies ackmowledge that one or more of the Agencies will produce, be exposed to, and receive confidential and pmprietary informatiion, including but not I=uted to records, files, docurr=ts, specifications, and other details (the "Confidential Information'), which will be disclosed between and among the Agencies and the Energy Consultant and other third parries in order to obtain bids or quotations for program implementation. The disclosure of this Confidential Information by the Agencies and Energy Consultant other than on behalf of the Agencies to this Agreement or for purposes other than those containai herein shall be extremely detrimental to the economic interests of all the Agencies. Therefore, at all times hereto, the Agencies and Energy Consultant aQrec that any Confidential Information may only be used consistent with the terms and conditions contained herein, inchxding program implerrientatioan and may only be disclosed to third parties with the express reservation and protection girded confidential and proprietary information. Wiffik tan (10) days of the termination of this Agreement, such Confidential Information, and any copies thereof must be returned to the proper Agency. 10. Sevembility In case any one or more of the provisions contained in this Agreement should be invalid, illegal or unenftt able in .any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. 11. Supplements This Agreement may be supplemented from time to time by one or more amendatory or supplemental instruments, each duly executed and delivered by proper officers (following approval by the governing body of the City and each one of the Agencies then joined as a party hereto, except as otherwise provided hereinafter), for the following purposes, but only upon satisfaction of the following respective conditions: 5 a. To add mutually agreeable additional duties or responsibilities to those already identified for the Energy Consultant; b. To (i) assign rights; (ii) add to or delegate duties or obligations; or (iii) release or terminate rights or privileges hereunder, upon agreement between the individual Agencies affected hereby; C. To amend or supplement this Agreement in any way, upon agreement between all the Agencies; .Provided, however, that no amendatory or supplemental instruments shall be valid or effective for any purposes unless there shall be at the time of execution thereof and attached thereto an opinion of counsel, who shall be independent of each of the Agencies, with recognized eompetence is the field of mumicipal law and/or municipal finance, that such amendatory or supplemental insManent shall not have a material adverse effect on any Financing or Financings undertaken and then outstanding pursuant to §8 hereof; or d. For each contract for Energy Supplies and Services, to set forth the rights, duties and obligations of each of the Agencies participating therein to ensure fulfillment of the terms end conditions of the Energy Contract and the terms and conditions of the Financing thereof 12. Nonce All demands, notices, approvals, consents; requests and other communications hereunder shall be in writing and shall be deemed to have been gim whey delivered in person or by registered or certified mad, postage prepaid, or addressed by recognized overnight delivery.service: a. To the City, at its address set forth above. b. To each Agency at its address set fm6 below or on an attached Joinder Agreement, 1. For the Rarrisburg Housing Authority: Dorsey Haward, Executive Director Harrisburg Housing Authority 351 Chestnut Street Harrisburg, FA 17101 2. For the Harrisburg Redevelopment Authority: Wilmer Faust, Executive Director Harrisburg Redevelopment Authority Rev. Dr. Martin L. King City Government Center Suite 40V 5 1 'Q 10 North Second .Street Harrisburg, PA 17101 3. For the Harrisburg Parking Authority. Ronald Massatt, Executive Director Harrisburg Parking Authority McCormick Public Safety Building 123 Walnut Street Harrisburg, PA 17101 13. AssLonment Agencies may assign their obligations and benefits to another participating Agency. AIl assignments may be made only with the written congnt of the participating Agencies hereto which shall not be unreasonably withheld. 14. Amendment This Agreement may not be changed, modified or amended, in whole or in part, except by a writing executed by the authorized representatives of all of the parties hereto. WB EREAS, the City of Harrisburg and the parties hereto execute and deliver this Amended and Restated Intergovernmental Cooperation Agreement on the data first written above. CITY 0 B G By. ILIL Reed, QMayor By: " k'6X Lew James Mcearthy, corkroner EXHIBIT A IGCA JOINDER AGREEMENT South Central Assembly for Effective Government Participant: Participant: q P U, tV SW + P Address: 4 S 0,/2? r A. ? 41.(4-z- 0 4- ? r Intending to be legally bound hereby joins in this INTERGOVERNMENTAL COOPERATION AGREEMENT dated as of day of , 20_, by and between the City of Harrisburg and all other Participants signatory to the said Agreement. This Joinder Agreement shall have the same force and effect as if the undersigned had executed an original Agreement with the City of Harrisburg and all other Participants executing a Joinder Agreement. EXECUTED on the n?? day of A P IC , 20A. ATTEST,?V,2 4 yr / By. . Title: - ?sr cr- •t B V Emez,,v, 9616 ons, Inc. Agreamerd for Utility' Information and Management Services ( BACKGROUND4cner win be participating In the Power and Energy Pun hase Program (the PEP ram") and has executed a Joinder Agreement for it* Intergovemmerrtel Cooperation Agreement (ti's 9GCAj or the Joint Purchasing Agreament (the °JPA"). The Client Is amtiintip served utilWetervices such as natural gas, electrictly, and liquid fuels, and needs uft bill processing, ongoing Information and an anatysls of the consumption and costs Of tam uttlitieslservices. SENCHMARKk Energy Solutions, Inc. (BESI)'ts the Energy Consultant to the PEP Program and advises ftte Agencies and Participants (local governmente, their agencies, non-profits and busk asses) in the collective p m%aes of Energy Supplies and SwAoss and also agrees to provide ft following additional services to the Client for tltek ut ftleervices accounts. (f) Natural Goa Accounts for Client < I:- (2) EleotrldlyAccounis (3) L lgttd Fuels Accounts a / > BENCHMARK will provide the Client wish: c CompeUdvsy priced natural gas and liquid ftrels c ommodity.and delivery services thataaves the Client money an-their utility bIQL Competltivaly priced 819r generation (when available) that also saves the C 1ant money on their utnlty bills. Ufitity IN Processing and Information to assure accurate bills and prompt delivery and payment of the Mw bft IV Managdment Infomnatlan.that enables the Client to make more affective business decisions. Ce BENCH L. Ezzew goluaoas, :inc. Continued page 2 Agreement for Utility Information and Management Services 1 Scope of Services. Client will authorize the billing departments at the natural gas, liquid fuels, and electric utBMibsrvendors to pork With BSI In the pisparstion of their bills. BSI will provider: a. Consolidated !J<thty BOV: Collate, tabulate.. summarize and report monthly to A/P the consumption, costs and the bill to pay each utility. b. Clbfltty Management Reports: Annual Reports of Utility Management Information This Report Includes, In a summary Ranat, monthly usage, costs and savings, an analysis of historical information, recommendations for utility system improvements, and carer agreed to Information. 2 BENCHMAPXs additional responstingtties: a. Maintain an accurate uttYgr database (proille) for each areindudbrg: property address, accountA service statistics (consump9on and casts). b. Interface with the uWJn and provide timely resolution of problems. G Audit sample the bills for accuracy vs. the Tariffs, and report differenass. d. Analyze data, compare monthly, seasonal and annual usage and costs. e. Identify and report opportunities to reduce (conserve) resources. 3 Clients' Responsibilities: a Use ftbest efforts to ptovlde BSI with tmelymordhly uglily bins. b. Report, on a timely basis, changes In utility accounts. EA"AU E new, 5O1tr'dome, Inc. Continued page 3 Agreement for Utility•information and Management Services 4 Tam of the Agreement; This Agreement is effective as of the date below and shall remain in effect for three years. This Agreement Will be subject to automatic extensions of one year unless either party notifies the other in writing of its Intention to terminate st least (60) days in advance of an expiration date. 5 Confidentially: Each Party acknowledges that all material and Information which has or will crane Into the possession of the other party in conneadon with this Agreement or the performance hareof, consists of confidential and proprietary data, disclosure of which to onuse by third parties will ba demagIng. Both parties therefore agree to hold such matelot confidential. a Fuller, this Agreement maybe Terminated under these conditions: Clentreservea time right to terminate this Agreement for cause to the event of (1) a breach of this Agreement by BESI, (2) the Micro of BESI, after written notice of the epeacs from it* Client to peftm No duties In a timely and professional manner. BEEN reserves Me right to terminate this /agreement for cause in the event of (1) a breach of this AQroement.by the Client, (2) time failure of the Client alter written notice of the spedNce from 881, to pWorm Its duties In a timely and Mlaselonal manner. In the event of a tennkmtion of thts.Agmemant prior to a scheduled termination date, BEST shall be entitled to a pro rata payment for aff previously unpaid service through the date of such tarsnhw8on. 7 Cos of Servloas: In oonaldereflon of the work to be performed and the work produds to the delivered, Client shall pay to BEV the Fees per the Fee Schedule currently in affect (see Schedule A or Its update attached). a. Sponsorship and Management (invoiced and.due monthly) b. Monthly Boling for ea. Tariff Acoount (1r load and due monthly) c Monthly Bft for Commodity, Delivery or C3eewation, 7ransmiacion Accounts preload and due monibly) d Special set-* Fee The.oDst to expand time Program Software, and Input the Data Basefor Consolidated. Boling. e Annual Budget (for each De*nated Utility) (Invoiced wNW 30 days or completion) Rate class dependent 2.5% to 5.0% vol. /Class Dependent $220 - $3:601mo. Nr3per month $12.30 F1 per month $8.33 1$12.60 plus Performance Fee per Fee Schedule $0:00 IAa# $ By Agreement o? Acceptance By execution and delivery of this Contract, and intending to be legally bound hereby, the undersigned agrees to this Proposal as of Mare 1, 2009. Hampden Township, PA Met* President Board of BEN!,BMAPX *&.w So/aEiens, Ina VifliIISIM J. i+fielCh President $CA Schedule A Fee Schedule Intergovernmental Cooperation Agreement and Joint Purchasing Agreement Utility Bill Auditing and Processing Commercial Accounts Per Account Cost of service (mo utility bill) < $250 $2.20 >$250 <$750 $4.40 >$750 $6.60 Commercial Contract Accounts (Bulk purchase or negotiated price accounts) Per account / Rate Classes Electric GS1 Electric GS3 /LP all Nat Gas, Liq Fuels Sponsorship, Management and Contract Negotiations Rate Classes Nat Gas (NT/CT) and all Electric Rate Classes Nat Gas (IS#2 / LFD) Liquid Fuels (Diesel, Gasoline. Heating Oil) Performance Fees - Cost Savings Nat Gas Delivery - Tariff comparison or Market based pricing Nat Gas Commodity - Tariff comparison Electric Generation- Tariff comparison Performance Fees - Utility Bill Savings Saving money on the bills of Diff: Tariff vs Contract w/Utility or Vendor of Refund for bill errors, over-reads, sales tax GS1, GS3, LP = EL Rate Classes NT, CT, LFD, IS#2 = NG Rate Classes $8.33 $12.50 % mo contract 2.5% 5.0% 4.0% 30.00% 30.00% Effective 10/01/07 Edited 10/01/09 --lb, BENCHMARK- . Energy Solutions, Inc. This agreement is entered into on the 14 fday of _7} u ?LU 6 t 20 by and among BENCFMARK Energy Solutions,. Inc., (BESrj, 1500 Cochran Road, Ste 1003, Pittsburgh, PA 15243, and Seven - Utility Management Consultants, Ltd., ("SUMO') 12300 Dundee Ct, Suite 215, Cypress, TX 77429, ("SUMC"), and in 1? 1 it/ -)-ou-/+r Yf 1 r'`? ("CLIENT"). WHEREAS, BENCIDJARK Energy Solutions, Inc. is the Energy Consultant to the Iotergavernmental Cooperation Agreement ("IGCA") and the Joint Purchasing Agreement (JPA") which were developed for local governments, agencies, non-profits and businesses to join together in fiat collective purchase of energy supplies and related energy management services including electricity, and; WHEREAS, Client is a member ofener the IGCA or JPA, has eugagaiBENCSMARK as their Utt"liq Consultant; is interested m pcmchasing elech=W supplies and smvxm under these agreements, and has also signed a Management Services Agreement with BENCHMARK in which BENCHMARK provides energy management and supplies bchhdnog oam etftW lJ+ priced dectticty generation, and; WHEREAS SUMC has developed c v I P 6 proprietary methods for exumiamg utility expenses for their customers and has entered into certain business arrangements with third parties, which allow SUMC to offer these customers favorable utility arimga en s. WHEREAS CLIENT.desires to have SUMC examme its electric utility vW= and make certain favorable utility atrangetueats forthe-aIEDPt`. THEREFORE, CLIENT hereby engages SUMC to paftm eMmise reduction analysis and make written Savings recommalmonis in glecticity, (i) P Ply CI.1EN T, CI.IEl3'T hereby authorizes SUMC to MMIDSM C-JENT in -fig e=? a?p* offers, evahhetugg offam and assisting in contract boas or otlrerwm advising on.enaW relWbd mgfta (collectively the "Serwcars") CLIENT hereby agrees that during the tin of tthis Spaameik SUMC shag be the eacWM provider of the Services to CLIENT- All utility nervosa. PMAGO {"mv ') am hereby nq stied to fnrw d all offers, :?d oerrespofrdauce cM=rmng Cl to MAC . ThO agceemerht shall be effective for a period of sac motes Bow the dame of this 89eaMe8k, and SUMC: shall have the option to renew the: gpaneot daft the tacit of my service 8V=net between CLIENT and a Provide: Client agrees not to u? oor xvraadt;ions and: PEVdt?cttE? ? ? PmvIdars. . (2)'SUMC will perform all services :required to anabze the above indicated expa m area and submit written ne datior?9 that will enable CLIENT to realise savings in &on areas. dless of which Providar CLIENT chooses, the fee will be paid, by the Provider to SUMC. SUMC will not invoice the Client or BENCHMARK for its mvicm (3)SUMC will. lame access to the appropriate acconaft records of CLIENT for the purpose of initial analysis and follow ap; subject to normd oonfdaotidity mquu ofttie CLIENT.. SUMC will also have am= to oarra t . s. SUMO admawledW the confidentiality of all CLIENT kf n Lion reaeavedduring the =sips and agrees 1304: to ftdwe such bft=tib6 aathorized by CLIENT. (4) In paBormimg the Services, SUMC " act as an bd t oo r and have control of the.method and the manner the Savices that-are peraorgmed. SUMO is authorized to contract with others to assist in the perkemanbe Offite.Services.. --D- r Client: Seven Utility Management By ? By: Printed Name: I ELI ` ir, ? CO $3 f Printed Name Title: - r D lv 1y 5 j-f r7p 'Fide. f 'F Date: Date: ??_?oJJ Ofil? Tax ID: Benchmark InaV Solutions, Inc Br. Lem- M?nl/ Printed Nantes. I I , we? 1 U Title: t W?{' V 1 Date: 1600 CGCHRA14 ROAD, SUITE 1003, PITTSBURGH, PA 15243 T (412) 571-0850 F (412) 571-9121 (e) benchmark33@verfzon:net LETTER OF AUTHOR17ATION FOR THE REQUEST OF HISTORICAL USAGE INFORMATION Date: Expiration Date: LIST LDC (List Local Distribution Company that applies to this request) PPL (Fax 484-634-3260) Please accept this as a formal request and authorization for the above referenced L =W Distribution Company (LDU) to release energy usage data, including kWh. WA or KW, and interval data (d applicable) at the following location(s) to INFO@SEVENUnLrrY.COM. This information request shall be limited to no more than the most recent 42-month period of service. Please see schedule attached for additional service addresses and account numbers. Service Address ESI Number (found on bitl}. Please forward usage and load information in electronic (Microsoff Excel) format to: E-mail: infoC& evenufijjjj com AUTHORIZATION I affirm that 1 have the authority to make and sign this request on behalf of my company for all ESID's that are associated with this request. i9 m StS I S .? T.! '-A- C7 ,Name, printed) Ttie} ' h a S,-; e r-- C ) 4rnjw r/ c°rf pct,:7Syi? , Email Address) z=- 3 - C o dd/ Federal Tax W Numberor Social Sewrity Number) (Legal Company -Include any DBA) 7- x0 S. 157 0 ,w77,&< Y/4.r- '> (Effing Skeet Address) f271CC_ s;5 q; ire (City, State, Zip Code) -717 ?-7 ? J -- 0 ,fit G' (Telephone Number) (Fax Number) info&evenudUty.com - www:sevenutifity.cvm 12300 Dundee Court. Suite 215. Cypress, TX 774429 Local (281)213-9910 'f611 free (866 85-SEVBN Fax(281) 213-9801 I Hampden Township 00215-77006 Golf Irrigate 17 2 00289-27415 PS #15 Scenery Dr 3 00389-21023 Sewer TrtPlant, PS #1, PB 4 02131-45003 Golf Restrm #5 5 04035-07004 PS #22, 4200 Roth Ln 6 04759-26062 PS #2 Prowell Dr 7 09849-04001 Golf Restrm #13 8 12783-57002 Rec Crkvw S Gate g 15217-13012 PS #21 Good Hope Rd, Fairwinds 10 15640-84001 Swer TrtPlant Roth Ln 11 15680-33395 PS #14 Manor/Trindle 12 15840-84007 Sewer SludgePad, Roth Ln 13 19080-76005 PS #10 Hampden Vil 14 21730-72021 PS #23 HoltzRun/Magaro Rd 15 23764-4104 Sewer Roth Pole Bid 16 32410-87000 Rec Office PkSt, Bld#11FacBld 17 32810-87002 Rec/Sim-PkSt-HampPk/Pool 18 32810-87002 Rec1Slm-PkSt HampPk/Pool 19 37210-87004 PS #18 Mech Navy 20 40759-21063 Rec Maint PkSt Bkl#2 21 43810-87005 PS #12 SearsRn/Conodo 22 44759-26086 PS #3 Conodo/Hempt 23 48198-M7 Rec SalemPk Pavillion 24 55680-33399 PS #6 PA RR 25 58340-70008 PS #7 Good HopelMill 26 74090-74001 PS #18 StJohn Lt 196 27 74680-32392 PS #9 Indian Crk 28 77412-41008 Rec 3aiemPk Field #6 29 80759.21067 Adm MunBld, SportHill 30 81480=76008 PS #5 LampsGap 31 81640-84000 PS #4 ErbsSrRd 32 82580-81004 PS #8 HampindPk 33 82979-29016 PS #11 Woodcrest Dr 34 83038-17001 ESB Gate-Chas. Rd 35 83810=800 Rec Mairrt, Bark St 36 84410-80000 EMS Bldg, Sport Hill 37 84969-23587 Rec CrkvwPk/Restrooms 38 B9290-77009 Golf laigPond Lampl-n, NOT Winter 39 9213148003 Rec Hampden Pk Pav/Storage 40 93580-80000 PS ##20 Simpson Ferry 41 93680-30398 SP 419 Fairway/UttleRn 42 93654-77000 Rec ConodoYth. Pk, OrrsBr 43 941.31-73000 Hwy Roth Ln Garage 44 95611-44008 TS LambsGap/SliverSpSq 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 Hampden Township 95810-82009 97847-91009 97890-77004 90431-54006 16601-20008 16801-20004 16801-20004 00201-81006 00570-72009 00770-72005 02673-69004 02797-14000 06469-26472 08659-27555 10650-84014 13680-39295 17810-83002 18831-41009 21140-70005 21759-22060 24725-54477 30618-55000 33436-66001 33555-21008 34433-17005 44193-75003 44401-25006 46659-25551 51810-83004 53680-39299 55500-77001 57189-67004 63900-78007 6621:9-99000 . 7501.7-72002 84010-80008 84810-80002 86659-2$552 90802-34009 92440-84007 93801-24004 89965-81017 69334-92003 PS #13 Prowell Dr Fir Vol#1, ESBN, GoodHope Golf ProShop/Restaurant Traffic Signals Street Lights Twp Street Lights Twp St. Light-Wentworth Hampden Twp Hampden Twp/Warning Signal Hampden Twp Hampden Twp/Traffic Signal Hampden TwpANarning Signal Hampden Twp/Traffic Signals Hampden Twp/Traffrc Signals Hampden Twp Hampden Twp/Traffic Signals Hampden Twp/Traffic Signals Hampden Twp Hampden Twp/Traffic Signal Hampden Twp/Traffic Signals Hampden Twp/TS Hampden Twp Hampden Twp Hampden Twp Hampden Twp/Waming Signal Hampden Twp Hampden Twp Hampden Twp/Traffic Signals Hampden Twp/Traffic Signals Hampden Twp/Traffic Light Hampden Twp/Traffic Signals Hampden Twp/Trafflc Signals Hampden Twp/Waming Signals Hampden Twp Hampden Twp/Signal Hampden Twp Hampden Twp/EMS-Traffic Signal Hampden Twp/Traffic Signals Hampden Twp/Signal Hampden TwplWaming Signals Hampden Twp/Signal Hampden Twp/Signal Wastewater Treatment Roth Ln ft-, MASTER SALES AGREEMENT This Master Sales Agreement ("Master Agreement") is entered into by and between Liberty Power Holdings LLC, Liberty Power Maryland LLC, Liberty Power District of Columbia LLC, Liberty Power New York LLC and LPT, LLC (ail Delaware limited liability companies) (collectively referred to as "Supplier"), and Hampden Township ("Customer"), as of (the "Effective Date"). Supplier and Customer may individually be referred to as a "Party" and collectively as the "Parties". This Master Agreement, together with the exhibits, schedules or other properly executed supplements, and any and all Transactions and Sales Confirmations will be referred to herein collectively as the "Agreement". Definitions of certain capitalized words and phrases used in this Agreement are set forth in Exhibit.A. 1. SCOPE OF SERVICES 1.1. Purchase and Sale. Subject to the terms and conditions set forth herein, Supplier shall sell and deliver and Customer shall purchase and receive electric energy, pursuant to a Sales Confirmation. 1.2. Contract Pri ce.'Customer shall pay Supplier for the electric energy purchased at the Contract Price, as specified in an applicable Sales Confirmation, plus (1) all applicable Taxes, (ii) all other amounts related to the purchase and delivery of electric energy to the Delivery Point(s), (iii) all Pass-Through Charges, and (4v) any other fees specified in the Sales Confirmation. The Contract Price includes the cost elements to serve Customer Accounts as specified In the Sales Confirmation. In the event any account Is not covered within the stated Term of a valid Sales Confinnation, such account will be billed according to an applicable index rate plus a pass through of all applicable delivery components including, but not limited. to energy, capacity, congestion, ancillary services and ISO administrative cost Renewable Portfolio Standard, and losses plus a fixed adder:rate. of $&b2S / kWh. The fixed adder price does not include Taxes or regulated charges from the Utility including, but not limited to; T&D Charges, customer account fees, or other utility transition charges. L3. Term. This Agreement shall be effective on the Effective Date and shall remain in effect until terminated by either'Party upon thirty (30) days prior written notice to the Notice Parties. Notwithstanding the foregoing, the termination of this Agreement shallnot effect or excuse the performance-of either'Party,pursuantto any provision of thaAgreement that by its terms survives any such termination and provided, further, any Sales Confirmations executed pursuant to this Agreement shall remain in effect until both Parties have fulfilled any and all of their respective obligations with respect to the underlying Transactions. 1.4. Transactions A Transaction Will be entered into only upon the execution by Customer and Supplier of a Sales Confirmation Each- Sales Confirmation shall include terms including (1) Accounts, (ii) Transaction Term, (iii) Contract Price, JIv)Contract,fluantifji, jvj Delivery PbInt(s) and (vf) other special terms and conditions, If any. Any inconsistency between any teens of this Master Agreement and any terra as specified In a Sales Confirmation will be resolved in favor of the Sales Confirmation. Transactions will begin and end on and as of the Utility Transfer Dates specified on the applicable Sales Confirmation. With -respect to each Transaction,. Supplier will use commercially reasonable efforts to cause each Utility to take whatever.steps are!necessary to allow Supplier to begin providing service at the beginning of the Transaction and cease providing service at the -end of the Transaction as of the dates spedfled' on the applicable Safes Confirmation. 2, OPERATIONAL TERMS 2.1. -Information' and Designations. Ustomer will, with respect to each Account for each Transaction: (i) provide Supplier with usage data for the comparable period in the preceding year, (11) participate in "retain access under the applicable Law and Rules; {iii) execute at Supplier'srequest any separate written agreements (including with respect to electronic data exchange and other similar matters) that may be required by a Utility :in: connection with the implementation of this Agreement;. so long as such. agreements do not. Increase •Customees obligations hereunder, and 64 provide Supplier with such other lnfbffrmtlon and take such other actions during each Transactoh Term as Supplier may reasonably -request. LPWAM Proprleitary and:Confidendet Initta a..8 EXHIBIT 2.2. Electric Energy Delivery. Supplier will sell and deliver and Customer will purchase and receive electric energy at the ISO's points of delivery identified in the Sales Confirmation(s) ("Delivery Point(s)'). Titie to and risk of loss related to the electric energy shall transfer from Supplier to Customer at the Delivery ' Point(s); and not at the Customer's meter. 2.3. Notice of Operational Changes. In the case of any Transaction involving a full requirements Contract Quantity, Customer will use its commercially reasonable efforts to promptly advise Supplier of any event reasonably known to Customer that may impact Customer's ability to receive the Contract quantity ("Operational Change"). If Customer faits to use its commercially reasonable efforts to notify Supplier of an Operational Change, Customer will reimburse Supplier for any charges incurred by Suppller`as a result of such Operational Change. 2.4. Utitity Curtailment Notices. Customer agrees to promptly notify Supplier of, and fully comply with, all Utility curtailment or interruption orders or similar notices received by Customer from a Utility requiring the interruption or curtailment of Customer's electric energy usage at any :Account (a "Utility Curtailment Notice"), and pay any and all related charges Imposed upon or incurred by Customer or Supplier as a resultof Customer's failure to so comply. 2.5. Force Majeure. To the :extent either Party is prevented by Force Majeure from carrying out in whole or part, its obligations under the transaction and such Party (the "Claiming Party") gives notice and details of the Force Majeure to the other Party as soon as practicable, then, unless the terms of the Transaction specify otherwise, the Claiming Party shM be excused from the performance of Its obligations with respect to such Transaction (other than the obligation to make payments then due or becoming due with respect to performance prior to the Force Majeure). The Claiming Party shall remedy the Force Majeure with all reasonable dispatch. The non-Claiming Party shall not be required to perform or resume performance of Its obligations to the Claiming Party corresponding to the obligations of the Claiming Party excused by Force Majeure. 2.6. Billing and Payment Supplier shall invoice Customer in accordance with the invoice procedures set forth in the Sales Confirmation(s) for electric energy supplied under this Agreement. Invoices provided by Supplier, whether during the term of this Agreement or thereafter, shall be due and payable within thirty (30). days of the date of such invoice. Customer shall make payments to the address set forth on the applicable Sales Confirmation. Overdue payments shall incur a late payment fee by accruing inierest at the interest Rate from: the due date. If Customer in good faith disputes some portion of a Supplier invoice, It will provide Supplier, on or before the payment due date, a written explanation specifying the amount in dispute and the reason, for the dispute and shall pay the undisputed portion of the invoice. Supplier and Customer will use good faith -efforts to resolve any dispute concerning Invoiced charges. Any amounts finally determined to be-owed will be paid within five.(S) business days of such iipcIslon; plus Interest at the interest Rate from the.invoicerJue date. 2.7. Audit Customer has the right to request supporting documentadon of Supplier to the extent reasonably necessary to verify the accuracy of any statement, charge or computation made pursuant to the provisions of this Agreement concerning Transactions occurring within the previous six months. Customer agrees to notify Supplier with written notice thir y .(30) days. In advance of Customer's proposed date to visit Suppiiees location to examine records. If any such examination reveals any:inaccuracyr on any Invoice, the necessaryadjustments to such invoice and the payments thereof shall be made within thirty days,of resolution of the inaccuracy. This provision of this Agreement will survive any termination of the Agreement for a period of six. (6)months from the date of such termination for the purpose of resolving.,suth,invoice and paymentobjecfions. 3. LIMITATIONS OF REMEDIES, LIABUJTY AND DAMAGES 3.1. UMITAMONS OF REMEDIES. 1 ABIUTY & DAMAGES. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED :IN THIS AGREEMENT SATISFY THE ESSENTIAL. PURPOSES HEREOF. FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES .IS PROVIDED, SUCH EXPRESS REMEDY CIR:MEASURECIF-DAMAGES WILI. BETHE-SOLE AND EXCLUSIVE REMEDY, THE OBUGOWS LMIUTY WiLI. BE LIMITED AS SET FORTIS IN SUCH PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQurry.(INCLUDING, WM40UT UMITATION; SPECIFIC :PERFORMANCE) ARE WAIVED. EXCEPT AS SPECIFIED, IN SECTION 4 OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR'CDNSEQUENTiAL4 INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY. STATUTE, IN TORT OR CON'TRACT OR OTHERWISE. fI IS THE INTENT OF THE PARTIES. THAT THE JJMiTATIONS IMPOSED ON REMEDIES AND:MEASURES OFORMAGES BE W THOUT.REGiARDTO THE-CAUSET'HEREOF, iNCLGDiNG THE NEGLIGENCE OF ANY' PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE WA SAINN Proprietary and ConficIm Cal lrtittaf:)t'1'I 1?- PM& 2-of 8 EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, AND THAT OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE LIQUIDATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION OF HARM OR LOSS. 3.2. Electric Emereencies and Power QuaErty: The Utility will continue to operate the electric transmission lines and to maintain responsibility for power outages and for power quality. Customer will hold Liberty Power harmless in the event of a loss of power caused by any entity other than Liberty Power. if Customer has an electrical emergency, power outage, or reduction in power quality, Customer should contact the Utility at its emergency number. 3.3. Governmental Authority: Liberty Power is not liable for any damages due to an Interruption in service caused by acts of any governmental authority or changes in laws, rules, regulations, practices or procedures of any governmental authority. 4. GOVERNING LAW AND DISPUTE RESOLUTION 4.1. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER WILL BE GOVERNED BY AND CONSTRUED, ENFORCED AND PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF PENNSYLVANIA, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS. 4.2. Change in Law. In the event that there is a change in law, administrative regulation, or any fees or costs imposed by the applicable ISO or by a Governmental Authority ("Change In Law") and such change causes Supplier to incur any capital, operating or other costs relating to the provision of services contemplated herein, In order to maintain the same level and quantity of delivery of electric energy,, such costs will be added to the invoice as a Pass Through Charge and customer agrees to pay such Pass-Through Charge. 4.3. WAIVER OF JURY TRIAL EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION, CLAIM OR PROCEEDING RELATING TO THIS AGREEMENT EACH PARTY (0 CERTIFIES THAT NO REPRESENTATWE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY. WOULD NOT, IN THE EVENT OF SUCH A SUIT, ACTION, CLAIM OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND (Ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HAVE NOT BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY AMONG OTHER THINGS THE MUTUAL WARMS AND CERTIFICATIONS"INTI*S SECTION. 5. CONFIDENTIALITY AND PUBLICITY 5.1. Confidentiality and PublicThe contents of this Agreement and all other documents relating to this Agreement and any information made available by one ;Party to the other Party with respect to this Agreement are confidential and shall not be disclosed to any third party, except for such Information (1) as may become generally available to the public, .(ii) as may -be required or appropriate in response to any summons, subpoena, or otherwise in connection with any litigation or to comply with any applicable law, order., regulation, ruling, or accounting: disclosure rule or standard, (iii) as maybe dbt alned from a non-confidential source that disclosed such inlibrmatfon in a manner that did not violate Its obligations: to the nonefisdosing..party iin making such disclosure, or (Iv) as may be furolshed to the disclosing party's' Affiliates, and to each. of such person's auditors,. attorneys, advisors or lenders which are rega'rred to keep the infomution that is disclosed in i ' nfidebce. This obligation shalt surOve for a ;period of one (1) year .following the expiration or termipation of this Agreement. Supplier may not identify Customer as a customer of supplier unless Customer provides Supplier priorwrlttten authorization fur such Customer Identification. 6. NOTICES 6.1. Notices . All notices and similar correspondence will be In writing and delivered as specified below to each of the entities listed (collectively the "Notice Parties") by regular mail, courier, electronic mail, or facsimile. Notice will be effective upon receipt by the person to whom It Is addressed. 6.2- Notice Parties r?r?ewt rraw: Proprietary and,Confidentlal inftiai Page3ofa . CUSTOMER INFORMATION SUPPLIER INFORMATION Name Hampden Township Liberty Power Holdings Attn: Alberto Daire Address 1901 W. Cypress Creek Rd. Suite 600 Ft Lauderdale, FL 33309 'Phone/fax Ph:(305)492-8142 Fax: (212) 504-3295 E-Mail alberto.dalreCflibertypowerco .com 7. ASSIGNMENT 7.1: Assignment Neither Party shall assign this Agreement without the prior written consent of the other party, provided, however; that Supplier may assign the accounts, revenues and proceeds arising from the Agreement to a credit provider and Supplier may grant a lien upon its rights under this Agreement to a credit provider (or to an agent for its credit provider). Supplier may also assign its rights and obligations under this Agreement to certain backup service providers under contracts to perform services such as invoicing and power scheduling ("Service Providers'). Any such creolt provider (or., if an agent has been appointed, such agent) who has been assigned this Agreement may directly enforce Supplier's rights under this Agreement and may assign Supplier's rights under this Agreement upon foreclosure or other exercise of remedies by such credit provider(or agent). Customer may assign this Agreement to an Affiliate or the purchaser of facilities being served' under this Agreement provided that such Affiliate or purchaser possesses an equal or higher credit rating j"Required'13ating-I than that of the Customer at the time of the assignment .("Eligible Affiliate': Alternatively, in the absence ofthe Required Rating, the Affiliate or purchaser may be considered an Eligible Affiliate if its credit quality is enhanced'to the Required Rating by way of guaranty or other mechanism. 8. REMEDIES FOR FAILURE TO DEUVER/RECEIVE 8.1. Customer If Customer flails to receive all or part of the Contract Quantity to a Transaction, and such failure is not excused by reason -of Force Majeure or by Supplier's failure to perform, then Customer shall pay to Supplier, on the date that payment would otherwise be due In respect of the month in which the failure occurred, an amount for such 'deficiency equal to the positive differenee,.'if any, obtained by subtracting the Market Price (as defined in section 9 of this Agreement) from the Contract Price multiplied by the undelivered Contract Quantity for such month. The Invoice for such amotint will Include a written statement eolaining In reasonable detail the calculation of such amount. 8.2. Suaniier, If Supplier falls to schedule and/or deliver all orpart=of the electric energy pursuant to a Transaction, and such failure is not excused Py reason of Force Majeure or by Customer's failure to perform, then Supplier shall pay to Customer or credit Customer's next invoice, on the date that payment would otherwise be due 'in respect of the month in which the failure oca uTed, an amount for such deficiency equal to the positive difference, if any, obtained by subtracting the Contract Price from the Market Price (as defined in section .9 of this Agreement) multiplied by the undelivered Contract Quantity'for such month. The invoice for such amount will indude a written statement explaining In Seasonabledetailthe=caiculationofsuchamount 8.3. Disconnection of Service Only the local Utility has the abliity to disconnect yourservice. Failure to make full payment of the charges due hereunder .will be grounds for disconnection in accordance with regulatory rules an termination of service to non-residentlal customers. 8. EARLY TERMINATION PAYMENT uers+werre. Proprietary and Confidentiaf Iniuws,101 Ar, 131499 .4 of 8 9.1. Cu omer. In the event of a Customer Event of Defauk Supplier shall have the right to terminate this Agreement by delivering written notice to Customer and to calculate the Termination Value. If the Termination Value is calculated to be a positive number, then Customer shall be obligated to make an Early Termination Payment to Supplier in an amount equal to the. Termination Value. In all cases, Customer shall remain obligated to pay all other amounts owed by Customer to Supplier under this Agreement. 9.2. Su ier. In the event of a Supplier Event of Default, Customer shall have the right to terminate this Agreement by delivering written notice to Supplier and to calculate the Termination Value. If the Termination Value is calculated to be a negative number, then Supplier shall be obligated to make an Early Termination Payment to Customer in an amount equal to the absolute value of the Termination Value. 9.3. Formula. Termination Value is equal to the remaining Contract Quantity times the greater of (1) Contract Price less Market Price at the time of Termination, or (tt) $0.007/kWh. 9.4. Definitions . The Contract Quantity shall be defined as the undelivered Contract Quantity for the balance of the Term of the applicable Transaction(s). Under Transactions where the Contract Quantity is based on the full requirements of the Customer, then the Contract Quantity for purposes of calculating the Early Termination Payment. shall be based on the historical monthly consumptions for the accounts, specified in the applicable Sales Confirmation(s) and the last of Accounts attached to such Sales. Confirmation. The Market Price shall be determined by Supplier by reviewing, among other things,. the load-weighted average of electric energy forward prices in the congestion zones/nodal pricing point or similar locations where the Accounts specified In Schedule 1 of the Sales Confirmation are located and to include ancillarles, transmission losses and other pass through components. The Term for the Market Price will be for the. remaining Term of the applicable Sales Confirmation(s). Supplier agrees to act in a commercially reasonable manner to establish the Market Price. 9.5. Renewable Enerrrv Credits f"REGs°t.'Where a Transaction hereunder involves the purchase of RECs, in the event of a Customer Event of Default where the RECs have already been transferred to Customer, Supplier shall be entitled to additional monetary damages equivalent to the RECs sales price pro-rated for the remaining Term of the applicable Transaction. 9.6. Nettirrt:. In the event of a Supplier Event of Default, Supplier has the right to net and set-off any amount owed by Customer to Supplier under this.Agreement against its Early Termination Payment. 10. EVENTS OF DEFAULT 10.1. Events of Default An. "Event of Default" shall mean: (a) for the Customer, (I) the failure to make, when.-due, any payment required under this Agreement or (ii) the failure to take electric energy when delivered under terms of this Agreement if such failure is not cured -within ten (14) Business Days after Supplier provides written notice to the Customer, (iii) -:a downgrading -of the credit rating of Customer or Customer's Affiliate or. Guarantor, from that which was in efMcC on-the Effective Date-ofthts Agreement. `(b) in. the case of Supplier, the failure to fulfill its obligations as set forth in this Agreement with regard to (i) Contract Price, (ii), Transaction Term, fill) Contract Quantity and (iv) timely involdng for deliveries of electric energy, in. each :case, If such. failure is not cured within ten (10) Business Days after Customer provides wdtCen notice to Supplier; or fc): if either Party (l} files a petition or otherwise commences, authodzes or acquiesces In the commencement of a proceeding or cause of action under any bankrgptcyor.slmllar,law for the proteWon of creditors, or have such petition Red against It and such petition is not withdrawn or dismissed fortwenty 1201 Business Days aftersuch filing orlii) is unable to pay its debts as they %# due and such inablilty Is not cured witbinten. (10) Business' Days:aftergivfng wrFtten,notice to the Notice Parties. 10.2. Remedies of Customer Event ofDebut t» in the event of a Customer Event of Default, Supplier has the right to terminate the Agreement In acoordance with the Early Termination Payment provision and to take such other actions as are necena try to disconnect service from Supplier to Customer. In lieu of termination or disconnection, Supplier may, In its :sole. discretion, require adequate assurance of performance by Customer Including requiring an additional deposit. from Customer,, requiring payment in advance of invoicing of an amount up to the actual billed amount for the prior three months or requiring payment in advance of an. estimated -billed amount based on Customers usage for theprforthree months. 14:3. Credit A Wranoe. If Supplier has reasonable grounds to believe drat. Customer's .creditworthiness or performance under thit- Agreement has becorne unsatisfactory, Supplier will' provide Customer with written notice requesting rras? oms Pr,oprh tary and Contlidendal Initial Paa? 5asf g performance assurance In an amount determined by Supplier in a commercially reasonable manner. Upon receipt of such notice Customer shall have five (5) business days to remedy the situation. by providing such performance assurance to Supplier. In the event that Customer fails to provide such performance assurance, or guaranty or other credit assurance acceptable to Supplier within. five (5) business days of receipt of notice, than an Event of Default will be deemed to have occurred and Supplier will be entitled to the remedies set forth in Section 10 of this Agreement. 11. ENTIRE AGREEMENT 11.1. Entire Agreement. This Agreement embodies the entire agreement and understanding between the Parties, and . supersedes all prior agreements and understandings between the Parties, whether written or oral, with respect to the subject matter hereof. This Agreement may not be amended ercept by a written amendment signed by both Customer and-Supplier. 12. SEVERAS[UTY 12.1. Severabilitv, in the event that any of the terms of this Agreement are in conflict with any rule or laws, regulations, provisions or are otherwise unenforceable under the laws or regulations of any governmental authority or subdivision thereof,. such terms shall be deemed stricken from this Agreement,. but such invalidity or unenforeeabiiity.shall not invalidate any of the otherterms•of this -Agreement and this Agreement shall continue in force, unless the invalidity or unenforceability of any such provisions hereof does substantial violence to, or where the Invalid or unenforceable provisions comprise an integral part of, or are otherwise Inseparable from, the remainder of tfris Agreement. If any one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable •in any respect,. the validity, legality and enforceability of the remaining provisions contained herein shall not in anyway be affected or impaired thereby. 13. OTHER 13.1. Execution . This Agreement may be executed :in several counterparts, Including through facsimile signatures, each of which is an original and all of which constitute one and the same agreement. 13.3. Draft] ng. This Agreement shailibe considered for all purposes-as prepared through the joint efforts of the Parties and shall not'be construed against one Party or the other as a result of the preparation, submission or other event of negotiation, drafting or execution hereof. 13.3. Definition s Any term not defined herein shall have the meaning provided in Exhibit A- Definitions. IN WITNESS WHEREOF, the Parties, by their respective duly authorized representatives, have executed this Master Agreement effective as of the Effective Date. liberty Power Holdirrgs tLC Liberty Power •ItllarVland UC liberty Power Dlshlct.of Columbia '= iPT, L1.C LlbertY'Power New York LLC Hampden Townshiu (St/PPGTt7i) (CUSi°i MER)By: Printed Name: Alberto:Dalre Title: Chief 0oeratine Officer Date.- Printed ame: !^F1 % C-6 b 1t os ?? ct< Title: iwP JV,,Ax%ajG _ Date: Prbpridt "and Cootldential initials t? E-:Pape 13 of. a L F $a.. IXHIBIT A DEFINITIONS " croon " means, for each Facility, each account at such Facility to be included in a Transaction and identified by a specific account designation number. "Actual Usaae" means the actual amount of energy (in kWh) used at each Account during any period of determination. "AMH_ate" means with respect to any Person, any other Person controlling, controlled by or under the common control with the first Person. The terms "control" (including the terms "controlling", "controlled by" and "under common control with") will mean the possession, directly or indirectly, of the power to direct or cause the direction of the management of the policies of a Person, whether through the ownership of voting securities, by contract or otherwise. "Ae¢rercate Usaae"` means the total energy consumption for the Facilities covered by a Transaction. "Anticipated Usase' means the anticipated energy usage (in kWh) by each Account during each month, which shall be equal to the actual amount of energy (in kWh) used by each such Account during the same month during the 12 month period prior to the commencement of the applicable Transaction; provided that Customer or Supplier will reasonably estimate any such data that is not available. "Billing fie" means, for each Account, the period between successive invoices rendered either by Supplier or the applicable Utility during'the applicable Transaction Term. "QY means the Commodity Exchange Act, 7 U.S.C. %1-25, et.seg. as amended. 'Thamm In Law" means that applicable Law or Rules are amended, modified, nullified, suspended, repealed, found unconstitutional or unlawful, or changed or affected in any respect by any law or Rule of any Governmental Authority after the Effective Date. "Contract Price" means the Sale.Price of electric energy as defined in each Sales Confirmation. "FaciIW or "Faciities° means the Service Address of the Customer Accounts identified on Schedule 1 attached to the Sales Confirmation. "Force Maieure"' means an event or circumstance which prevents the Claiming Party from performing. Its obligations under one or more Safes Confirmations, which event or circumstance: was not anticipated as of the date the Sales Confirmation was agreed to, which is not withln the reasonable control of, orthe.result of the negligeneeof, the Claiming Party, and which, by the exercise of due diligence, the Claiming Party is unable to overcome or avoid or cause to be avoided. Force Majeure shall not be based on (i) the loss of Customer's markets; (ii) Customer's_Inabiliity economicallyto use or resell electric energy purchased hereunder;. (iii) the loss or failure of Supplier's supply; or (iv) Supplier's. ability to-seff electric energy at a price 'greater than the Contract Price. Neither parry may raise a aclaim of Force Majeure based in whole dr In part on curtailment by the Transmission Provider unless (1) such party has -contracted .for firm transmission with 'a Transmission Pmviderfor the electric energy to be delivered to or received at the.Delivery:Pointand (li).such curtailment.is due to "force majeu d" or "uncontrollable force' or a similar tern as defined.under the Transmission' Providers tariff. °Gavernmeotal •Authorit C means any federal, state, local, municipal -or other governmental authority, instrumentality; department, board, .court,. tribunal; regulatory commission, or other body; whether legislative; judicial or executive (or a combination or permutation thereof) and any arbitrator to whom a dispute has been presented under any Law or Rules or by agreement of the Parties with an interest In such dispute. "Mffirest Rate" means one pertwit (I%). ewer the :prime lending rate as published In The Wall Street Journal under "Money Rates," not to exceed-the maximum rate allowed by Law. r.rra?.p?w Proprieftry and Conffdentlal Page 7 of 8 if means any Independent system operator, regional transmission operator, "Transco," power pool or grid or control area operator established and providing services to the Accounts or other similar entity providing the same basic services as such entities and any successor thereto. "La re means any applicable statute, law (including common law), ordinance, rule, regulation; ruling, order, writ, injunction, judgment, decree, directive, policy or other legal or regulatory determination or interpretation by a Governmental Authority of competent jurisdiction, including without limitation, any such items dealing with or addressing the deregulation of the energy markets in the state where Facilities served pursuant to this Agreement are located. "LLq Factor" means the percentage defined by dividing average demand by peak demand during a specific period. "Local cane" means the then prevailing time (standard or daylight) of the time zone In which the applicable Facilities are located. "Perm" means any Governmental Authority or any individual, firm, partnership, corporation, limited liability company, joint venture, trust unincorporated organization, company or other entity or organization. "Pass-Through Chaise" means any itemized charge that is Incurred by Supplier in supplying electric energy to the Customer and Is In addition to the-Contract Price. Pass Through Charges will be billed to the Customer at the same rate or cost Incurred by Supplier. Pass-through charges usually relate to, but are -not limited to, T&D Charges, tariffs, and/or Taxes, "Retail Electric Provider" means the corporation, generator, broker or any other entity that sells electricity to end-user customers over regulated transmission or distribution facilities. "Ru l " means as applicable, the interim or final requirements, tariffs, rules, orders, regulations and procedures authorized or established by the applicable Governmental Authority that affect the sale, transmission and distribution of energy and other services contemplated by this Agreement. "Taxes" means all taxes, assessments, levies, duties, fees, charges or withholdings of any kind whatsoever and all. penalties, fines, additions to tax, or interest thereon, butexcluding any taxes on .net.income, employment taxes, penalties or fines. "T&D Clracses I means, if used in a Confirmation, all charges of any kind imposed or authorized. to be collected by a Utility orT&D Provider under applicable Law or Rules for or -related to transmission and distribution of energy and related services, Including, without limitation, Transition Charges. "D P ' means each entity transmitting/dIstributing energy to a:Facility, Including, without limitation, any applicable ISO. "Transa on" means. a particular transaction for the purchase and sale of electric energy or other services pursuant to this MasterAgreement as evidented by a-dulyexecuted-Sales Confirmation: "Transaction Term" means the terra of a Transaction as specified in the applicable Sales Confirmation. '11ansition Charges" means charges on account of"'stranded costs" or "transition casts" and any other similar types of charges associated with orresulting from the opening-up of the applicable state'selectricmarket; whether as:provided for In the Rules or otherwise. means an electricity Witty distribution. company, T&D Provider or other provider of tatiffed services to the Facilities, Including:any "standard offerprovider" or "provider of last.resore (as defined under applicable Caw and Rules): "titNtty Trsnsier Date" means 00:00:01 Local Time on- the day Immediately following the date as of which the Utility for each Account has completed all steps necessary to permit Supplier to start providing the services set forth In the applicable Sales Confirmation. Sara Proprietary and Confidendal' Initials /'1 PopBOf4 Offer ID: terry Expiration Time: EST SALES CONFIRMATION FIXED PRICE PRODUCT Upon execution by each of the Parties, this Sales Confirmation will confirm the agreement of the Parties to enter into a Transaction as defined in and pursuant to the terns of the Master Safes Agreement between the Parties dated as of LV09/2009 ("Master Agreement") under the following terms and conditions (capitalized terms used herein have the meanings given in the Master Agreement). FACILITIES AND ACCOUNTS: As specified on the attached Schedule 1. TRANSACTION TERM: This Transaction will be effective when signed by both Customer and Supplier. The Transaction Term will commence for each Account as specified on the attached Schedule 1 on the next Utility Transfer Date occurring on or after 1/01/20-10 and will continue until the next Utility Transfer Date occurring on or after 12/0112010. PRICE: For each Billing Lyle during the Transaction. Term, Customer will pay Supplier a Contract Price per kWh of Actual Usage as specified in Schedule 1 and described below. The Contract Price has been set based. on market conditions and Customer executing and Supplier receiving this.Sales Confirmation prior to Offer Expiration Time as specified on Schedule L This Sales Confirmation is only valid upon full execution by both Customer and Supplier. VOLUNTARY GREEN PURCHASES: The Contract Price Includes the voluntary purchase of renewable energy, represented by Green-e Certified Renewable Energy Certificates, equivalent to the percentage, as specified in Schedule 1, of Customer's estimated Usage. CUSTOMER ACKNOWLEDGEMENT: Customer acknowledges that Account(s) may be invalidated or removed from Schedule 1 by Supplier 1f.(1) the Information listed for any Account is materially inaccurate, or (2) for any reason the Utility does not accept, or causes -significant delay in, the enrollment of any Account, in which case Supplier and Customer may execute an updated Sales Confirmation. as mutually agreed by both Parties. INVOICING: Supplier shad submit one monthly Invoice per PAYMENT INSTRUCTIONS: All payments by Customer account for Supplier Consolidated and Dual Billing under this agreement will be remitted to: agreements. Such invoice shall include the address, and Bank: Bank of America the Account number(s), 'Invoicing shall: occur as North, Suite 100 determined by the Utility's standard 'Invoicing policy. Houston, 12400 €, TX 77060 Invoices shall be sent to the following address: ABA (W€res)c 026009393 Customer Name: Harnoden Townahio ABA (ACH; non-w€res): 111009012 Attn C/0: Account Name: Liberty Power Holdings Address Account No.: 4426295864 City. State.&.Tm: Beneficlary Name: Liberty Power Holdings Phone: Not later than ten (10) business days following the receipt of Customer's Actual Usage, Supplier will deliver to Customer an Invoice setting forth the charges due for the preceding Billing Cycle Jn the event Supplier does not receive Customer's Actual, Usage, Supplier reserves the right to use Anticipated 'Usage in place of Actual Usage„ for an Individual or group of accounts for the calculations included above: In the event that Supplier issues an Invoice using Anticipated Usage, Supplier will notify Customer and will charge ortredit Customer for any adjustments no later than ten: (10) business days following Suppllees receipt of the Actual `Usage. For any applicable toad Zone, the above charges will only apply when all of Customer accourts have been enrolled by the local utilities. Page 1 of 2. Customer Inn&I SCFE-04-2009 SPECIAL PROVISIONS: CONTRACT PRICE : means the energy price, including capacity, ancillary services, losses, Network Transmission, State required RPS (Renewable Portfolio Standards), AARR (Auction Revenue Rights), generation, applicable gross receipts tax, and any other miscellaneous charges (including, but not limited to 1S0/RTO, or PUC fees). The price does not include taxes other than gross receipts tax, regulated charges from the utility inciuding, but not limited to, utility transmission and distribution charges, customer account fees or other utility transition charges. BANDWIDTH: With respect to this Transaction, consumption bandwidths will .be +/- twenty-five (25%) percent versus the last twelve months of historical consumption, as specified on attached Schedule 1. Bandwidth shall be administered on a monthly basis against kWh usage only an an aggregate basis per utility and zone. Liberty Power Holdings LLC Liberty Power Maryland LLC. Liberty Power District of Columbia LL.C L.PT, LLC Liberty Power New York LLC (SUPPLIER) Signed By: (SUPPLIER) Printed Name: Title: Date: SCFE-04 zoos Page 24 2 Hampden Townshio (CUSTOMER) Signed By: (CUSTOMER) Printed Name: Im ri t . 1 J4 ? C C. c t+ "6- Title: 771-61,V- fV% r, co o Gam' Date f 2 1 A 7 Li IMtieilf''yt. M O .t1 r.l .r H rt .r r1 .r +i n-1 wr +r rt H H .-1 !21!21 rl er r( b-l 1 rr rl 7 P.1 ? 11111 o o oo o o _ _ o a ?NNNNNIY lNlV' NO tNNNIVNNNNMaic,i1i r r n ,ya'.r :? 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N w Y1 W . w .y w ..r p'yj e-- rn ti O N W rn a a I 0 v 0 ro I M Y ti Schedule A Fee Schedule Intergovernmental Cooperation Agreement for the Central Pa Energy Partnership Joint Purchasing Agreement for the Central Pa Energy Partnership Utility Bill Auditing and Processing: Commercial Accounts - Natural Gas/Electric Per Account Cost of service (mo. Utility bill) <$250 $2.20 >$250 but <$750 $4.40 >$750 $6.60 Commercial Contract Accounts: (Bulk purchase or negotiated price accounts) Per account/Rate Classes Electric GS1 @ < $1,000/mo Schedule above Electric GSI @> $1,000/mo $8.33 Electric GS3/LP all N.G. Liquid Fuels $12.50 ct Sponsorship, Management and Contract Negotiations (Min-Max Fees) % mo contra All Electric (min) 1.8% Rate Classes Nat. Gas (NT/CT) and all Electric (max) 2.5% Rate Classes Mat. Gas (IS#2/LFD) (max) 4.0% Liquid Fuels (Diesel, Gasoline, Heating Oil) (max) 4.0% Performance Fees - Cost Savings (Max Fees) 30.00% Natural Gas Delivery Tariff comparison or Market based pricing Nat Gas Commodity - Tariff comparison Electric Generation - Tariff comparison Performance Fees - Utility Bill Savings 30.00% Saving money on the bills of Diff: Tariff vs. Contract w/Utility or Vendor of Refund for bill errors, over-reads, sales tax Monthly or quarterly mailing of original bills for client or auditors $25/per mailing GS1, GS3, LP = Elec. Rate Classes NT, CT, IS#2 = N.G. Rate Classes Effective 11/22/10 1500 COCHRAN ROAD, SUITE 1005, PITTSBURGH, PA 15243 T (412) 571-0850 F (412) 571-9121 (e) benchnark330yerizan.net EXHIBIT 3 F s' Hampden Township Road of commWinners Alhrrl I L lilrnslorl;. I'rr_siclPnl Jahn V. Thomzw. IA-c Presirknit Unllnld 12. MC( 111111, ASSt. SVCI` 9nr)' Kou1rIIl 1,. 1 orc w Nallum1 R S4Cax 71;%vosliip tifanager kliowl It cos'wrt Benchmark Energy solutions, Inc 107 May Avenue, Suite 3a Bridgeville PA 15017 Dear Bill, November 5, 2010 This letter is to advise you during the November 3^d 2010, Hampden Township Board of Commissioners meeting, the Board voted to terminate its contract with Benchmark Energy Solutions. This decision was a result of a multitude of problems that Hampden Township has encountered over the pastyea r which unfortunately continue to go unresolved. Please understand this decision was not an easy one but our confidence that Bendmwk can continue to handle the township's electricity purchasing and billing needs remains uncertain. As an entity which serves the public and is held accountable for its services we must ensure our vendors are serving the township above distinction. This termination will be effective at the end of our contract with Liberty Power. I wish you luck in your future endeavors. Sincerely, o VI&nager 230:5. Sporting Hilt Rood M=hm9=bor$. PIS 970503097 r'Maii b41nPd n&=q.K altou-ttjh =. WeWte www3 atnpd*eownship.W FAX(717)761-7267 TDD (717) 214-.1'362 Adminiiamdon•(717)761.0119 AmW1ottae(7173761-5343 IWice:(717)NN2609 Reermiar(717)70-4931 Utilities(717)909-7145 EXHIBIT ?, s.. BE NCHIXA" ?71G+10 8610t'ION4 I've April 14, 2011 Mr. Michael Gossett, Manager/Secretary Hampden Township 230 S. Sporting Hill Road Mechanicburg, PA 17050 Re: Intergovernmental Cooperation Agreement/Agreement for Utility Information and.Management Services (the "Agreements') Dear Michael: You have ceased forwarding or having the utility bills forwarded to us for the purposes of auditing, consolidated billing, and billing for the monthly fees in 2010 before the Liberty. Power contract expired. Benchmark has calculated and attached the fees owed to us for the remaining fall terms of the Electric utility contract based upon your historical and estimated usage. While performing these calculations, we also noted, and added, the monthly fees billed to Hampden Township, but.not yet paid. Attached is the Invoice showing the total amount due for the full term of the Contract that Benchmark negotiated and procured foryou. Tice Schedule of Fees is attached and the calculations are plainly and :clearly set forth on the attached schedule, The Electric Program Fees where 1..90/6 for Sponsorship, Management and. Negotiation, and 21.6% for Performance fees.. The Natural Gas Program Fees where 2.50/*-4.0% for Sponsorship, Management and Negotiation, and 20%-30% for Performance fees. The current and prior Tariffs are available at each utiliWs website or go to the PUC Amount due: Electric Contracts and billing........... $28,499.04 As stated in the documents referenced above, you remain liable for the fees due to Benchmark under the Agreements for the life of the Contract Benchmark negotiated and procured for Hampden Township. You have received the benefit of our work throughout this period (see paragraph `8(d) of the IGCA, which notes your obligation to pay Benchmark's fees over the life of the Energy and Services Contracts). We look forward t0 your immediate payment. If you feel the fees should be different based upon your calculations from the actual bills, please forward the spreadsheet calculations and copies of the actual utility bills by type and by month for our review. We look forward to receipt of the amount due. Very truly yours, William ch President Attachments cc; Steven Petrikis, Esq. 1500 Cochran Road, Suite 1003, Pittsburgh,. PA 15243 T: 4:12-571-0850 F: 412-571-9121 E: ben61unaW3Qver1zon.net ¦ EXHIBIT Y ea0 N .N d M ~ N ? R _ c u 06 ?d O A S a 0 •ry-1 ?N vt, ; a 0 M o m p •m o ? d U v a? J. ro C C a E ? a V d a 0 c Q y ? ? .r G a N ? C m d p ? E pp? e V c C ? a H c ? °1 N ? 0 0. +Q o y o m ? ? am p c rn Y G t ro a a •'° a G cNts y5 oA a•? E? y. ? T v :?vo C t Y ',OC Q ya 10 E = a u a a ? a a •> aci o ur O. a c > E 'o a y 7 ..t s a a=`?t n ? c p N Q L F E I s ra . m $ i A U li a. ? Q- ?Y c i c ? ,Q ? m a 0 :O 49 ri N M sF Q $ ? Y A W CO o a o m d - ? N 4D 44 I V? (11 2 l7 c 0 213 ?o g {- to c N o. .ra u1 o M t7 N h 1M$? h w ? v 1n ? p1 :C '? tv 4 ao . O 1o W . ri Zvi n 1''1 .. "?I v u? q Q sr} ?'Y a .i ui vi 1n oP m m - m Y7 I 171 y c S 1-3 as Schedule A Fee Schedule intergovernmental Cooperation Agreement and Joint Purchasing Agreement Utility Bill Auditing and Processing Commercial Accounts - Natural gas/Electric Per o .20 Cost of service (mo utility bill) < $250 $2.20 >$250< $750 $4.40 >$750 $6.60 Commercial Contract Accounts (Bulk purchase or negotiated price accounts) Per account 7 Rate Classes Electric GS10 < $1;000/mo. Schedule above :Electric GS1 @ > $1,000/mo. $8.33 Electric G831LP all Nat Gas, Liq Fuels $12.50 Sponsorship, Management and Contract Negotiations (Max Fees) % mo contract Rate Classes Not Gas (NT/CT) and all Electric 2.5% Rata Classes Nat Gas (IS#2 / LFD) 4.0% Liquid Fuels (Diesel, Gasoline. Heating, Oil) 4.0% Performance Fees - Cost-Savings (Max Fees) 30.00% Nat Gas Delivery - Tariff comparison or,Market based pricing Nat Gas Commodity - Tariff comparison Electric Generation- Tariff comparison Performance Fees - Utility Bill Savings 30:00% Saving money on the bills % of Diff: Tariff vs Contract w/Utiffty or Vendor of Refund for bill errors, over-reads, sates tax Monthly.or quarterly mailing of original bills for cent oraudftors $25/per mailing GS1, GS3, LP = EL Rate Classes NT, CT, LFD, IS#2 = NG Rate Classes Effective 10101/07 Edfted 10/01 M9 Edited '11123109 VERIFICATION I hereby verify that the facts set forth in the foregoing AMENDED COMPLAINT are true and correct to the best of my knowledge, information, and belief. This Verification is made subject to the penalties of 18 Pa.C.S. § 4904 relating to unworn falsification to authorities. Date: a?r, ? l a 11 *. M s 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Amended Complaint has been served by mailing a copy, United Stated mail, first class, postage prepaid, this 6th day of February 2012, to the following: Keith O. Brenneman, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street Mechanisburg, PA 17055 i, , Aj-"I J) Rachel D. Felton, Esquire n Q? LAW OFFICES SNELBAKER & BRENNEMAN, P.C. Keith O. Brenneman, Esquire Attorney ID No. 47077 ('I Snelbaker & Brenneman, P.C. 44 West Main Street Mechanicsburg, PA 17055 (717) 697-8528 Solicitor for Hampden Township 4.1 " ' - - I = w r r ! r 1 1 f .3 CD D F" C-) ZI: .* w CJ _ ,y.J'..w ....j BENCHMARK ENERGY SOLUTIONS, INC., Plaintiff V. HAMPDEN TOWNSHIP, Defendant To 1114 lllli VvvlXl vt' ?.vivlivlvi? rLlit]o yr CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-9396 CIVIL TERM CIVIL ACTION - LAW NOTICE TO PLEAD Benchmark Energy Solutions, Inc., Plaintiff And Steven Petrikis, Esquire Rachel D. Felton, Esquire 11 Stanwix Street, 18t' Floor Pittsburgh, PA 15222 You are hereby notified that you have twenty (20) days in which to plead to the enclosed New Matter or a default judgment may be entered against you. Snelbaker & Brenneman, P. C. By: Keith O. Brenneman, Esquire 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717)697-8528 Date: February 27, 2012 Solicitor for Defendant Hampden Township Keith O. Brenneman, Esquire Attorney ID No. 47077 Snelbaker & Brenneman, P.C. 44 West Main Street Mechanicsburg, PA 17055 (717) 697-8528 Solicitor for Hampden Township BENCHMARK ENERGY SOLUTIONS, 1NC., Plaintiff V. HAMPDEN TOWNSHIP, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-9396 CIVIL TERM CIVIL ACTION - LAW ANSWER WITH NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT Defendant Hampden Township, by its Solicitor, Snelbaker & Brenneman, P.C., submits this Answer With New Matter to Plaintiff s Amended Complaint as follows: ANSWER 1. Admitted. 2. Admitted. 3. Denied. Paragraph 3 of Plaintiffs Amended Complaint contains an unwarranted conclusion of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). 4. Denied. Paragraph 4 of Plaintiffs Amended Complaint contains an unwarranted conclusion of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). LAW OFFICES i ? 5. It is admitted only that Plaintiff ("Benchmark") purports to offer the services as SNELBAKER 8C BRENNEMAN. P .C. described in Paragraph 5. The averments of Defendant's New Matter are incorporated in this paragraph in their entirety. 6. Denied. This party is without sufficient information to form a belief as to the truth of the averments concerning the local governmental agencies, if any, that may have entered into the IGCA; therefore, same is denied and strict proof thereof demanded. It is further denied that a true and correct copy of the IGCA is attached to Plaintiffs Amended Complaint. 7. Denied. The averments of Paragraph 6 of the answer are incorporated by reference herein. By way of further Answer, the content of the IGCA, alleged to be a document in writing, speaks for itself. 8. Denied. Paragraphs 6 and 7 of this Answer are incorporated by reference herein. 9. Denied. Paragraphs 6 and 7 of this Answer are incorporated by reference herein. 10. It is admitted only that the IGCA entered into by Defendant allowed other local government agencies to join in an IGCA by executing a joinder agreement. 11. It is admitted only that Defendant executed the joinder agreement attached as Exhibit B to the Amended Complaint. To the extent Plaintiff alleges that by executing the joinder agreement, Defendant joined the IGCA attached to Plaintiffs Amended Complaint as Exhibit A, same is denied. 12. Admitted. 13. Denied. The content of the MSA, being a document in writing, speaks for itself. By way of further Answer, it is denied that Paragraph 13 of Plaintiffs Amended Complaint accurately or fully sets forth the services to be provided by Benchmark.. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 14. Denied. The content of the MSA, being a document in writing, speaks for itself. 2 15. Denied. The content of the MSA, being a document in writing, speaks for itself. 16. Denied. The content of the MSA, being a document in writing, speaks for itself. 17. Denied. The content of the SUMC Agreement, being a document in writing, speaks for itself. 18. Denied. The content of the Liberty Power Contract, being a document in writing, speaks for itself. 19. Admitted. 20. Denied. The content of the Liberty Power Contract, being a document in writing, speaks for itself. It is admitted that PPL served as the electric distribution company and was an electric utility. 21. Denied. It is denied that in December 2009, Benchmark agreed to amend its fee schedule under the MSA in accordance with that schedule attached to Plaintiffs Amended Complaint as Exhibit F. Exhibit F specifically notes an effective date of November 22, 2010. 22. Denied. Paragraph 21 of this Answer is incorporated by reference herein. 23. Denied. Paragraph 18 of this Answer is incorporated by reference herein. 24. It is admitted only that the Defendant received electricity generated by Liberty Power between January 2010 and January 2011. 25. Admitted in part; denied in part. It is admitted only that Defendant on or about November 5, 2010 sent the letter identified as Exhibit G to Benchmark.. It is denied that Defendant had not specified its myriad problems to Plaintiff or given Plaintiff the opportunity to address or cure them. The averments of Defendant's New Matter are incorporated by reference herein. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 3 26. Denied. It is denied that Benchmark processed Defendant's PPL bills as alleged from January 2010 through December 2010, including electric generation accounts. On the contrary, Benchmark provided no bill processing services after September 2010 and those services provided prior to August 2010 were erroneously, negligently and/or improperly done. 27. Admitted in part; denied in part. It is admitted that Defendant stopped PPL from forwarding its electric bills to Benchmark by the end of September, not on or after December 2010 as alleged. It is denied that Defendant interfered with or prevented Benchmark's performance under the MSA. The averments of Defendant's New Matter are incorporated by reference herein. 28. Admitted. By way of further Answer, the averments of Defendant's New Matter are incorporated by reference herein. 29. Denied. It is denied Defendant did not make payment to Benchmark for amounts due from January 2010 to January 2011. On the contrary, Defendant paid Benchmark for services provided to August 2010. Thereafter, Benchmark provided no services for which payment should be made. 30. Admitted, with qualification that no amount is due Benchmark by Defendant for the reasons set forth in New Matter, the averments of which. are incorporated by reference herein. 31. Admitted, with the qualification that a response was made to a subsequent letter that Defendant recognized no obligation to Benchmark. 32. The averments of Paragraphs 1 through 31 of this Answer are incorporated by reference herein. 33. Admitted. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 34. Denied. The content of the MSA, being in writing, speaks for itself. 4 3 5. Denied. Paragraph 3 5 of Plaintiff s Amended Complaint is denied as containing unwarranted conclusions of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). To the extent a response is deemed appropriate, the averments of Defendant's New Matter are incorporated by reference herein. 36. Denied. Paragraph 36 of Plaintiffs Amended Complaint is denied as containing unwarranted conclusions of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). To the extent a response is deemed appropriate, the averments of Defendant's New Matter are incorporated by reference herein. 37. Denied. Paragraph 37 of Plaintiffs Amended Complaint is denied as containing unwarranted conclusions of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). To the extent a response is deemed appropriate, the averments of Defendant's New Matter are incorporated by reference herein. WHEREFORE, Defendant Hampden Township requests Plaintiff s Amended Complaint be dismissed with prejudice and judgment be entered in favor of Hampden Township together with costs of this action. 38. The averments of Paragraphs 1 through 37 are incorporated by reference herein. 39. Denied. Paragraph 39 of Plaintiffs Amended Complaint is denied as containing unwarranted conclusions of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). To the extent a response is deemed appropriate, the averments of Defendant's New Matter are incorporated by reference herein. By way of further Answer, Benchmark conferred no benefit upon Defendant for the reasons set forth in Defendant's New Matter. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 5 40. Denied. Paragraph 40 of Plaintiffs Amended Complaint is denied as containing unwarranted conclusions of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). To the extent a response is deemed appropriate, the averments of Defendant's New Matter are incorporated by reference herein. By way of further Answer, there was no appreciation of benefits by Defendant for the reasons set forth in Defendant's New Matter. 41. Denied. Paragraph 41 of Plaintiff s Amended Complaint is denied as containing unwarranted conclusions of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). To the extent a response is deemed appropriate, the averments of Defendant's New Matter are incorporated by reference herein. WHEREFORE, Defendant Hampden Township requests Plaintiffs Amended Complaint be dismissed with prejudice and judgment be entered in favor of Hampden Township together with costs of this action. 42. The averments of Paragraph 1 through 41 are incorporated by reference herein. 43. Admitted in part; denied in part. It is admitted only that Benchmark performed some services, for which services Benchmark has been paid by Defendant. It is denied, to the extent expressed or implied, that Plaintiff is owed any amount in excess of what it has already been paid for the reasons set forth in this Answer and New Matter, the averments of which are incorporated by reference herein. 44. Admitted in part; denied in part. It is admitted only that Hampden accepted some services from Benchmark, for which services payment has been made to Benchmark. It is denied, to the extent expressed or implied, that Plaintiff is owed any amount in excess of what it LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 6 has already been paid for the reasons set forth in this Answer and New Matter, the averments of which are incorporated by reference herein. 45. Denied. Paragraph 45 of Plaintiffs Amended Complaint is denied as containing unwarranted conclusions of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). To the extent a response is deemed appropriate, the averments of Defendant's New Matter are incorporated by reference herein. 46. Denied. Paragraph 35 of Plaintiff s Amended Complaint is denied as containing unwarranted conclusions of law to which no response is required by this party pursuant to Pa.R..C.P. 1029(d). To the extent a response is deemed appropriate, the averments of Defendant's New Matter are incorporated by reference herein. 46. Denied. Paragraph 46 of Plaintiffs Amended Complaint is denied as containing unwarranted conclusions of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). To the extent a response is deemed appropriate, the averments of Defendant's New Matter are incorporated by reference herein. WHEREFORE, Defendant Hampden Township requests Plaintiff s Amended Complaint be dismissed with prejudice and judgment be entered in favor of Hampden Township together with costs of this action. NEW MATTER 47. The averments of Paragraphs 1 through 46 of this Answer are incorporated by reference herein. 48. Plaintiffs Amended Complaint fails to set forth any claim or cause of action upon LAW OFFICES SNELBAKER & BRENNEMAN, P.C. which relief may be granted. 7 49. Plaintiff fails to plead or set forth any basis in fact or law upon which a claim for attorney's fees may be made. 50. The amount claimed by Plaintiff does not represent the value of any services provided by Plaintiff for which payment has not been made; but a restatement of the amount Plaintiff claims as damages for its alleged breach of contract claim. 51. Plaintiff was obligated under the MSA to provide utility bill processing. 52. Plaintiff was obligated under the MSA to assure accurate bills. 53. Plaintiff was obligated under the MSA to assure prompt delivery and payment of utility bills. 54. Plaintiff was obligated under the MSA to interface with the utilities and provide timely resolution of problems. 55. The MSA provides Plaintiff no right or notice to cure. 56. Plaintiff failed on numerous and repeated occasions to perform its duties in both a timely and professional manner after being provided with statements, in writing and orally, of the specific problems and issues related to Plaintiffs performance and/or lack of performance. 57. Notices given to Plaintiff by Defendant included notice that Defendant's accounts at both PPL and Liberty Power were not being paid by Plaintiff, although funds for payment on those accounts were promptly paid by Defendant to Plaintiff. 58. Defendant received notice that it owed PPL $141,819.53 for the reason that Plaintiff failed to send funds in payment of that amount although it received such funds from Defendant. 59. Defendant received contact from Liberty Power that Defendant owed money on LAW OFFICES SNELBAKER & BRENNEMAN, P.C. account as a result of Plaintiff not making payment on Defendant's account. 60. Plaintiff applied funds received from Defendant to the wrong accounts. 8 Ir 61. Plaintiff transmitted funds to PPL which included funds Plaintiff received from Defendant, without specifying to PPL the account to which the funds should apply and in what amounts. 62. Plaintiff made payment of Defendant's funds to UGI instead of PPL. 63. Plaintiff erroneously billed Defendant for amounts Plaintiff claimed were due to PPL by Defendant. 64. Plaintiff failed to provide Defendant with copies of invoices in order for Defendant to confirm what was or was not being paid by Plaintiff on Defendant's behalf. 65. Even after Defendant arranged with Plaintiff for Defendant directly to deposit funds into Plaintiffs bank account, Plaintiff still did not make timely payment of Defendant's funds. 66. Utility bills were sent back to Defendant due to Plaintiff s failure to properly process LAW OFFICES SNELBAKER & BRENNEMAN. P.C. those bills. 67. Due to Plaintiff failing to properly make timely payment on Defendant's PPL i i I' accounts, PPL assessed security deposits on some of Defendant's accounts. 68. Defendant received notice from PPL of its intention to shut off power to Defendant's sewage system pump stations due to Plaintiffs failure to timely pay Defendant's PPL account i bills. i 69. Defendant received notice from PPL of its intention to shut off power to Defendant's i j public golf course due to Plaintiffs failure to timely pay Defendant's PPL account bills. 70. Defendant received notice from PPL of its intention to shut off power to the waste water treatment plant due to Plaintiffs failure to timely pay Defendant's PPL account bills. 71. Defendant received notices from PPL of PPL's intention to terminate electric service in writing, by numerous automated telephone calls and by in-person calls from PPL. 'i l 9 72. In May 2010 Defendant resumed paying PPL directly due to all the problems caused by Plaintiff in failing to apply Defendant's payment to the proper PPL account. 73. The numerous termination notices received by Defendant caused employees of Defendant to question Defendant's financial condition and ability to meet its financial obligations. 74. Defendant spent more staff time dealing with Plaintiff invoice errors and issues than j that amount of time Defendant would have expended had Defendant handled payment of its bills to PPL. 75. Defendant claims its staff time as noted in Paragraph 74 above as a set-off to any j claim of Plaintiff in this action. 76. Plaintiff claimed and advised Defendant that it found substantial sums and therefore credits as a result of amounts incorrectly billed by PPL when performing an audit of PPL's billings for other clients. 77. Plaintiff represented, after numerous inquiries by Defendant, that Plaintiff found no over-billing or errors by PPL on Defendant's accounts over a three-year period. 78. Plaintiff never provided Defendant any documentation or evidence it had performed an audit of Defendant's PPL bills or any explanation why it had found such errors for many other clients but not for Defendant. 79. Defendant and four other municipal clients of Plaintiff had to meet with Defendant in July 2010 in order to have Plaintiff address the numerous and common problems the municipalities had with Plaintiffs service and lack of service. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 10 80. Municipalities, in addition to Defendant, have terminated Plaintiffs services due to Plaintiffs failure to properly perform services similar to those undertaken by Plaintiff for Defendant. 81. Plaintiff repeatedly failed to provide timely resolution of problems with PPL or otherwise. 82. For the reasons set forth above and in this Answer, Plaintiff has waived its right to claim any additional sums from Defendant. 83. For the reasons set forth above and in this Answer, Plaintiff is estopped from claiming any additional amounts due and payable by Defendant. 84. For the reasons set forth above and in this Answer, Plaintiffs action and claims are barred by Defendant's payment. 85. For the reasons set forth above and in this Answer, Plaintiff has breached the MSA and is entitled to no recovery. WHEREFORE, Defendant Hampden Township requests Plaintiffs Amended Complaint be dismissed with prejudice and judgment be entered in favor of Hampden Township together with costs of this action. SNELBAKER & BRENNEMAN, P. C. By: Keith O. Brenneman, Esquire 44 West Main Street Mechanicsburg, PA 17055 Date: February 27, 2012 (717) 697-8528 Solicitor for Defendant Hatrtpden Township LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 11 VERIFICATION I, Keith B. Metts, Township Manager, verify that the statements made in the foregoing Answer With New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. I verify that I am authorized to execute this Verification on behalf of Hampden Township. --- X r_?- k Kei B Metts, Township :Manager Hampden Township Date: February 27, 2012 CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date, caused a true and correct copy of the foregoing Answer and New Matter to be served upon the person and in the manner indicated below: FIRST CLASS MAIL, POSTAGE PREPAID. ADDRESSED AS FOLLOWS: Steven Petrikis, Esquire Rachel D. Felton, Esquire 11 Stanwix Street, 18th Floor Pittsburgh, PA 15222 By: SNELBAKER & BRENNEMAN, P.C. Keith O. Brenneman, Esquire 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717)697-8528 Date: February 27, 2012 Solicitor for Defendant Hampden Township LAW OFFICES SNELBAKER & BRENNEMAN, P.C. D-i?1 i THCONOTA- Metz Lewis Brodman Must O'Keefe LLC Steve Petrikis, Esquire Pa. I.D. No. 34426 Rachel D. Felton, Esquire Pa. I.D. No. 205929 11 Stanwix Street, 18th Floor Pittsburgh, Pennsylvania 15222 Phone: (412) 918-1100 Email: spetrikis@metzlewis.com rfelton@metzlewis.com Attorneys for Plaintiff rR ! All 9: ;2 CUMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BENCHMARK ENERGY SOLUTIONS, INC., Plaintiff, vs. HAMPDEN TOWNSHIP, Defendant. ARBITRATION CASE NO. 2011-9396 CIVIL REPLY TO NEW MATTER Plaintiff, Benchmark Energy Solutions, Inc. (`BESI"), by its attorneys, Metz Lewis Brodman Must O'Keefe LLC, files this Reply to New Matter: 47. Paragraph 47 is an incorporation paragraph to which no response is required. To the extent a response is required, BESI hereby incorporates its Complaint as if fully set forth herein. 48. Paragraph 48 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment. 49. Paragraph 49 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment. 50. Paragraph 50 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment. 51. Denied on the basis that the content of the MSA, being a document in writing, speaks for itself. 52. Denied on the basis that the content of the MSA, being a document in writing, speaks for itself. 53. Denied on the basis that the content of the MSA, being a document in writing, speaks for itself. 54. Denied on the basis that the content of the MSA, being a document in writing, speaks for itself. 55. Denied on the basis that the content of the MSA, being a document in writing, speaks for itself. 56. Denied as stated. To the contrary, although some problems existed with BESI's payment of Defendant's utility bills, BESI fully and properly performed its obligations in a professional manner and many billing problems and errors were the result of Defendant, PPL and/or Liberty Power's failure to fully and properly perform their respective obligations. 57. Denied as stated. To the contrary, although some problems existed with BESI's payment of Defendant's PPL and Liberty Power accounts, BESI fully and properly performed its obligations in a professional manner and many billing problems and errors were the result of Defendant, PPL and/or Liberty Power's failure to fully and properly perform their respective obligations. In addition, Defendant failed on numerous occasions to timely transmit funds to BESI for the payment of Defendant's utility accounts. 2 58. After reasonable investigation, BESI is without sufficient knowledge or information to form a belief as to the truth of whether Defendant received notice that it owed PPL $141,819.53 and accordingly denies this averment. It is further denied that Defendant owed any such monies solely due to a failure by BESI to send funds to PPL that BESI timely received from Defendant. To the contrary, although some problems existed with BESI's payment of Defendant's utility bills, BESI fully and properly performed its obligations in a professional manner and many billing problems and errors were the result of Defendant, PPL and/or Liberty Power's failure to fully and properly perform their respective obligations. 59. After reasonable investigation, BESI is without sufficient knowledge or information to form a belief as to the truth of whether Defendant received contact from Liberty Power that Defendant "owed money on account" and accordingly denies this averment. It is further denied that Defendant was contacted solely due to a failure by BESI to send funds to Liberty Power that BESI timely received from Defendant. To the contrary, although some problems existed with BESI's payment of Defendant's utility bills, BESI fully and properly performed its obligations in a professional manner and many billing problems and errors were the result of Defendant, PPL and/or Liberty Power's failure to fully and properly perform their respective obligations. 60. After reasonable investigation, BESI is without sufficient knowledge or information as to what Defendant means by "wrong accounts" and accordingly denies this averment. 3 61. Denied. To the contrary, when BESI sent Defendant's funds to PPL, BESI identified for PPL the accounts to which Defendant's funds were to be applied and the amount of the funds to be applied to each identified account. 62. Denied. BESI directed M&T Bank to issue an electronic payment of Defendant's funds to PPL. Thereafter, M&T Bank mistakenly issued an electronic payment of Defendant's funds to UGI instead of PPL. BESI remedied M&T's mistake and Defendant suffered no harm. 63. Denied as stated. Although some problems existed with Benchmark's payment of Defendant's utility bills, BESI fully and properly performed its obligations in a professional manner and many billing problems and errors were the result of Defendant, PPL and/or Liberty Power's failure to fully and properly perform their respective obligations. 64. After reasonable investigation, BESI is without sufficient knowledge or information as to what Defendant means by "copies of invoices" and accordingly denies this averment. 65. Denied as stated. To the contrary, although payments were not always timely, BESI fully and properly performed its obligations in a professional manner and many billing problems and errors were the result of Defendant, PPL and/or Liberty Power's failure to fully and properly perform their respective obligations. For example, on numerous occasions Defendant failed to timely transmit funds to BESI for the payment of Defendant's accounts. 66. After reasonable investigation, BESI is without sufficient knowledge or information as to what Defendant means by "[u]tility bills were sent back to Defendant" and accordingly denies this averment. 4 67. Admitted in part and denied in part. It is admitted only that PPL assessed a security deposit on Defendant's Roth Lane account. It is denied that the security deposit was the result of BESI's failure to properly make timely payment on the Roth Lane account. To the contrary, the security deposit was the result of Defendant, PPL and/or Liberty Power's failure to fully and properly perform their respective obligations. 68. Admitted in part and denied in part. It is admitted that Defendant received notice from PPL of its intention to shut off power to Defendant's sewage system pump stations. It is denied that Defendant received the shut off notice solely due to a failure by BESI to send funds to Liberty Power that BESI timely received from Defendant. To the contrary, although some problems existed with Benchmark's payment of Defendant's utility bills, many billing problems and errors were the result of Defendant, PPL and/or Liberty Power's failure to fully and properly perform their respective obligations. 69. Admitted in part and denied in part. It is admitted that Defendant received notice from PPL of its intention to shut off power to Defendant's public golf course. It is denied that Defendant received the shut off notice solely due to a failure by BESI to send funds to Liberty Power that BESI timely received from Defendant. To the contrary, although some problems existed with Benchmark's payment of Defendant's utility bills, many billing problems and errors were the result of Defendant, PPL and/or Liberty Power's failure to fully and properly perform their respective obligations. 70. Admitted in part and denied in part. It is admitted that Defendant received notice from PPL of its intention to shut off power to Defendant's waste water treatment plant. It is denied that Defendant received the shut off notice solely due to a failure by BESI to send funds 5 to Liberty Power that BESI timely received from Defendant. To the contrary, although some problems existed with Benchmark's payment of Defendant's utility bills, many billing problems and errors were the result of Defendant, PPL and/or Liberty Power's failure to fully and properly perform their respective obligations. 71. After reasonable investigation, BESI is without sufficient knowledge or information to form a belief as to the truth of this averment and accordingly denies this averment. 72. Admitted in part. It is admitted that in May or June of 2010, Defendant began paying PPL directly. The remainder of the allegations are denied as stated. To the contrary, although some problems existed with Benchmark's payment of Defendant's utility bills, many billing problems and errors were the result of Defendant, PPL and/or Liberty Power's failure to fully and properly perform their respective obligations. 73. After reasonable investigation, BESI is without sufficient knowledge or information to form a belief as to the truth of this averment and accordingly denies this averment. 74. Denied. Extraneous staff time Defendant spent dealing with the payment of Defendant's PPL bills was the result of Defendant, PPL and/or Liberty Power's failure to fully and properly perform their respective obligations. 75. Paragraph 75 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment. 76. Admitted. By way of further answer, BESI did not perform the audits under the IGCA or any Agreement for Utility Information and Management Services. 6 77. Admitted. By way of further answer, BESI did not perform the audit under the IGCA or the MSA. 78. Denied. BESI told Defendant that it conducted an audit of Defendant's PPL bills and told Defendant that it did not find any errors in the tariff rate that PPL billed Defendant. 79. Admitted in part and denied in part. It is admitted only that BESI met with Defendant and four other municipalities in July of 2010. The remainder of the allegations are denied as stated. The municipalities and BESI met in cooperation to collectively find solutions to problems that existed with Benchmark's payment of the municipalities' utility bills, including billing problems and errors that were the result of Defendant, PPL and/or Liberty Power's failure to perform their respective obligations. 80. Admitted in part and denied in part. It is admitted that other municipalities wrongfully terminated BESI's services. It is denied that BESI failed to properly perform services. To the contrary, although some problems existed with Benchmark's payment of Defendant's utility bills, many billing problems and errors were the result of Defendant, PPL and/or Liberty Power's failure to fully and properly perform their respective obligations. 81. Denied as stated. To the contrary, BESI fully and properly performed its obligations, including diligently attempting to resolve any alleged problems with Defendant, PPL and/or Liberty Power. 82. Paragraph 82 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment. 83. Paragraph 83 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment. 7 84. Paragraph 84 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment. 85. Paragraph 85 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment. WHEREFORE, Benchmark Energy Solutions, Inc. respectfully requests that judgment in excess of $28,499.04 plus continuing and additional interest, costs, and attorneys' fees be entered against Defendant Hampden Township. Date: March 16, 2012 Respectfully submitted, METZ LEWIS BRODMAN MUST O'KEEFE LLC By: ntiaa ?Cc?? Steve Petrikis, Esq. Pa. I.D. No. 34426 Rachel D. Felton, Esq. Pa. I.D. No. 205929 11 Stanwix Street, 18th Floor Pittsburgh, PA 15222 (412) 918-1100 Attorneys for Plaintiff 8 VERIFICATION I hereby verify that the facts set forth in the foregoing REPLY TO NEW MATTER are true and correct to the best of my knowledge, information, and belief. This Verification is made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date: -?' "OW ' /(o Z CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Reply to New Matter has been served by mailing a copy, United Stated mail, first class, postage prepaid, this 16th day of March 2012, to the following: Keith O. Brenneman, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street Mechanisburg, PA 17055 Rachel D. Felton, Esquire 'I r q t.f_t J-OF 2013 JUL 29 PH 12: 26 CUMBERLAND COUNTY PENNSYLVANIA Keith O. Brenneman, Esquire Attorney ID No. 47077 Snelbaker&Brenneman, F.C. 44 West Main Street Mechanicsburg, PA 17055 (717)697-8528 Solicitor for Hampden Township BENCHMARK ENERGY SOLUTIONS, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 2011-9396 CIVIL TERM HAMPDEN TOWNSHIP, : CIVIL ACTION—LAW Defendant BENCHMARK ENERGY SOLUTIONS, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff V. NO. 2012-996 CIVIL TERM UPPER ALLEN TOWNSHIP, : CIVIL ACTION—LAW Defendant MOTION OF DEFENDANT HAMPDEN TOWNSHIP TO CONSOLIDATE ACTIONS FOR HEARING PURSUANT TO Pa.R.C.P. 213 Defendant Hampden Township, by its Solicitor, Snelbaker& Brenneman, P.C., submits this Motion and in support thereof states the following: 1. On December 27, 2011 Plaintiff Benchmark Energy Solutions, Inc. filed a Complaint against Hampden Township docketed to No. 2011-9396 seeking damages from Hampden LAW OFFICES SNELBAKER& BRENNEMAN, P.C. - Township based upon a claim that Hampden Township breached the terms of an Agreement for Utility Information and Management Services (the "MSA") with Plaintiff. 2. As a result of preliminary objections filed by Defendant Hampden Township to the Complaint, Plaintiff filed an Amended Complaint in February 2012 as of course in accordance with Pa.R.C.P. 1028(c)(1). 3. On March 7, 2012 Plaintiff filed a Complaint against Defendant Upper Allen Township docketed to No. 2012-996 seeking damages from Upper Allen Township based upon a claim that Upper Allen Township breached the terms of an Agreement for Utility Information and Management Services (the "MSA") with Plaintiff. 4. As a result of preliminary objections filed by Defendant Upper Allen Township to the Complaint, Plaintiff filed an Amended Complaint on April 12, 2012 as of course in accordance with Pa.R.C.P. 1028(c)(1). 5. The first 22 paragraphs of Plaintiff's Amended Complaint filed against Hampden Township at No. 2011-9396 are substantially identical in form and content as the first 22 paragraphs of the Amended Complaint filed against Upper Allen Township at No. 2012-996. 6. Plaintiff asserts against both Hampden Township and Upper Allen Township claims for breach of contract, unjust enrichment and quantum meruit. 7. The claims raised by Plaintiff against Hampden Township and Upper Allen Township arise out of the same Amended and Restated Intergovernmental Cooperation Agreement and substantially identical MSAs between Plaintiff and Hampden Township and Plaintiff and Upper Allen Township. LAW OFFICES SNELBAKER& BRENNEMAN, P.C. 2 8. The actions initiated by Plaintiff against both Hampden Township and Upper Allen Township arise as a result of both Upper Allen Township and Hampden Township terminating their respective MSA with Plaintiff due to Plaintiff's failure to provide services as agreed to by Plaintiff under the MSA. 9. The actions initiated by Plaintiff against Hampden Township and Upper Allen Township involve common questions of law and fact and arise from substantially identical transactions and occurrences. 10. Both actions initiated by Plaintiff are within the limits of damages requiring mandatory arbitration in Cumberland County. 11. Due to common issues of law and fact arising out of similar contracts and action's by Plaintiff, for purposes of judicial economy and consistency,the actions docketed to No. 2011- 9396 and No. 2012-996 should be consolidated for purposes of an arbitration hearing. 12. Discovery in both actions is concluded and the pleadings in both actions are closed. 13. In accordance with C.C.R.P. 208.2(d), counsel for Defendant Upper Allen Township concurs in the relief requested in this Motion and counsel for Plaintiff Benchmark Energy Solutions,Inc. does not concur in the request to consolidate the actions for purposes of an arbitration hearing. 14. No judge has previously ruled in any matter involving either the case docketed to No. 2011-9396 or No. 2012=996. LAW OFFICES SNELBAKER Ett BRENNEMAN, P.C. 3 t i WHEREFORE, Defendant Hampden Township requests this Court to issue an order consolidating the cases at No. 2011-9396 and No. 2012-996 for purposes of arbitration hearing. SNELBAKER&BRENNEMAN,P. C. By: . Keith O. Brenneman,Esquire 44 West Main Street Mechanicsburg,PA 17055 Date: July 29, 2013 (717)697-8528 Solicitor for Defendant Hampden Township LAW OFFICES SNELBAKER& ' BRENNEMAN, P.C. 4 VERIFICATION I verify that the statements made in the foregoing Motion are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: Keith O. Brenneman LAW OFFICES SNELBAKER& BRENNEMAN, P.C. CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date, caused a true and correct copy of the foregoing Motion to be served upon the persons and in the manner indicated below: FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Rachel D. Felton, Esquire Metz Lewis Brodman Must O'Keefe, LLC 11 Stanwix Street, 18th Floor Pittsburgh, PA 15222 J. Stephen Feinour, Esquire Nauman, Smith, Shissler& Hall, LLP P. O:Box 840 Harrisburg, PA 17108-0840 SNELBAKER& BRENNEMAN, P.C. By: r Keith O. Brenneman, Esquire 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717)697-8528 LAW OFFICES Solicitor for Hampden Township SNEL13AKER& BRENNEMAN, P.C. Date: (l[!/iL ell" � BENCHMARK ENERGY SOLUTIONS, INC. IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. HAMPDEN TOWNSHIP, DEFENDANT NO. 11-9396 CIVIL/ BENCHMARK ENERGY SOLUTIONS, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. UPPER ALLEN TOWNSHIP, DEFENDANT NO. 12-996 CIVIL IN RE: MOTION OF DEFENDANT HAMPDEN TOWNSHIP TO CONSOLIDATE ACTIONS FOR HEARING ORDER OF COURT AND NOW, this 31s' day of July, 2013, upon consideration of Hampden Township's Motion to Consolidate Actions for Hearing Pursuant to Pa.R.C.P. 213, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Plaintiff to show cause why the relief requested should not be granted; 2. The Plaintiff shall file their Answer on or before August 23, 2013; 3. Argument on the matter will be held on Monday, September 16, 2013, at 3:00 p.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, \\�k 41", UA Rachel D. Felton, Esquire MW C— "I -"-J. Stephen Feinour, Esquire ,�Keith 0. Brenneman, Esquire bas PQ _ C + Metz Lewis Brodman Must O'Keefe LLC Steven Petrikis, Esquire Pa. I.D.No. 34426 f AUG -8 PH I' 03 Rachel D. Felton, Esquire CUMBERLAND ; �; Pa. I.D.No. 205929 535 Smithfield Street, Suite 800 1 Y N Pittsburgh,Pennsylvania 15222 Phone: (412) 918-1100 Email: spetrikis @metzlewis.com rfelton @metzlewis.com Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA BENCHMARK ENERGY ) ARBITRATION SOLUTIONS, INC., ) ) CASE NO. 2011-9396 CIVIL Plaintiff, ) ) vs. ) ) HAMPDEN TOWNSHIP, ) ) Defendant. ) PETITION FOR APPOINTMENT OF BOARD OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF THIS COURT: Metz Lewis Brodman Must and O'Keefe LLC, counsel for Plaintiff Benchmark Energy Solutions, Inc., in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the plaintiff in the action is $28,499.04. 3. The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: Keith O. Brenneman and Richard C. Snelbaker of Snelbaker& Brenneman, P.C., Defendant's counsel. WHEREFORE, Benchmark Energy Solutions, Inc. respectfully requests this Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. A Proposed Order is attached hereto. $ g.50?cal_. of 379'1 R41-.at By: ham 1 b Ca Steve Petrikis, Esq. Pa. I.D. No. 34426 Rachel D. Felton, Esq. Pa. I.D. No. 205929 535 Smithfield Street, Suite 800 Pittsburgh, PA 15222 (412) 918-1100 Attorneys for Plaintiff 2 ,rt CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing PETITION FOR APPOINTMENT OF BOARD OF ARBITRATORS has been served by mailing a copy, United Stated mail, first class,postage prepaid, this 6th day of August 2013, to the following: Keith O. Brenneman, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street Mechanisburg, PA 17055 V,ckttutit. cr/q`-- Rachel D. Felton, Esquire Metz Lewis Brodman Must O'Keefe LLC Steven PetrMs,Esquire ' ,, r Pa. I.D.No. 34426 ` Rachel D.Felton,Esquire Ulf rrAiN"D COUNTY Pa. I.D.No. 205929 PENNSYLVANIA 535 Smithfield Street, Suite 800 Pittsburgh,Pennsylvania 15222 Phone: (412) 918-1100 Email: spetrikis @metzlewis.com rfelton @metzlewis.com Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA BENCHMARK ENERGY ) ARBITRATION SOLUTIONS, INC., ) CASE NO. 2011-9396 CIVIL Plaintiff, ) vs. ) HAMPDEN TOWNSHIP, ) Defendant. ) ANSWER TO PETITION TO RULE TO SHOW CAUSE ON DEFENDANT HAMPDEN TOWNSHIP'S MOTION TO CONSOLIDATE ACTIONS FOR HEARING PURSUANT TO Pa.R.C.P. 213 NOW comes Benchmark Energy Solutions, Inc., by and through its undersigned counsel, and hereby files the within Answer to Petition to Rule to Show Cause on Defendant Hampden Township's Motion to Consolidate Actions for Hearing Pursuant to Pa.R.C.P. 213, stating in support thereof as follows: 1. The averments of Paragraph 1 are admitted with the clarification.that Plaintiff filed a complaint against Hampden Township,No. 2011-9396 (the"Hampden Township Action"), seeking damages for Hampden Township's breach of a March 1, 2009, Agreement for Utility Information and Management Services between Plaintiff and Hampden Township (the "Hampden Township MSA"). 2. The averments of Paragraph 2 are admitted. r 3. The averments of Paragraph 3 are admitted with the clarification that Plaintiff filed a complaint against Upper Allen Township,No. 2012-996 (the"Upper Allen Township Action"), seeking damages for Upper Allen Township's breach of a December 16, 2009, Agreement for Utility Information and Management Services between Plaintiff and Upper Allen Township (the"Upper Allen Township MSA"). The complaint was filed after Upper Allen Township appealed a district magistrate judgment in favor of Plaintiff on Plaintiff s claims against Upper Allen Township. 4. The averments of Paragraph 4 are admitted. 5. The averments of Paragraph 5 are denied as stated. The complaints in each action contain some similar allegations,but are not substantially identical in form and content. Each complaint contains distinct allegations that are particular to each of the separate actions. 6. The averments of Paragraph 6 are admitted with the clarification that the breach of contract, unjust enrichment and quantum meruit claims that Plaintiff asserts against Hampden Township in the Hampden Township Action are separate and distinct from the breach of contract,unjust enrichment and quantum meruit claims that Plaintiff asserts against Upper Allen Township in the Upper Allen Township Action. 7. The averments of Paragraph 7 constitute conclusions of law which require no response. Accordingly, those averments are denied. By way of further response, Plaintiff's breach of contract claim against Hampden Township is based on the Hampden Township MSA and Plaintiff s breach of contract claim against Upper Allen Township is based on the Upper Allen Township MSA. The Hampden Township MSA and the Upper Allen Township MSA are two separate.and distinct contracts that contain differing terms. 2 8. The averments of Paragraph 8 are denied. By way of further response, the Hampden Township Action and the Upper Township Action arise out of Hampden Township and Upper Allen Township's respective and separate failure to pay fees due to Plaintiff for services which Plaintiff rendered. 9. The averments of Paragraph 9 constitute conclusions of law which require no response. Accordingly, those averments are denied. By way of further response, the Hampden Township Action and the Upper Allen Township Action do not involve common questions of law and fact and do not arise from the same transaction or occurrence. 10. The averments of Paragraph 10 are admitted. 11. The averments of Paragraph 11 constitute conclusions of law which require no response. Accordingly, those averments are denied. By way of further response, the Hampden Township Action and the Upper Allen Township Action should not be consolidated as the two separate actions do not involve common questions of law and fact and do not arise from the same transaction or occurrence. 12. Denied. Discovery in the Upper Allen Township Action is ongoing. Upper Allen Township has not responded to Plaintiff's First Request for Production of Documents Directed to Defendant and depositions have not been taken. The Upper Allen Township Action is not ready for arbitration. In comparison, discovery is complete in the Hampden Township Action and that action is ready for arbitration. 13. The averments of Paragraph 13 are admitted in part and denied in part. It is admitted only that counsel for Plaintiff opposes Hampden Township's request to consolidate the Hampden Township and Upper Allen Township actions because the two actions do not involve common questions of law and fact and do not arise from the same transaction or occurrence. 3 Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining averments of Paragraph 13, and accordingly, those averments are denied. 14. The averments of Paragraph 14 are admitted. NEW MATTER 15. The Hampden Township Action and the Upper Allen Township Action should not be consolidated for purposes of an arbitration hearing. 16. Under Pa.R.C.P. 213(a), a court may consolidate actions pending in a single county where the actions "involve a common question of law or fact"or the actions "arise from the same transaction or occurrence." A court should not consolidate multiple actions unless there are common questions that form"a material part of the matter in dispute in each action." See Limbert v. Sealview Plastics, Inc., 17 Pa. D. & C.2d 785, 787 (C.P. Montgomery Co. 195 8) (citation omitted). A"court may refuse consolidation where the common question of law or fact is not of sufficient significance in the various actions to justify their being combined or where the consolidation might cause prejudice or result in over-complication of issues." Id. 17. The Hampden Township Action and the Upper Allen Township Action should not be consolidated as the actions do not involve common questions of law or fact or arise from the same transaction or occurrence. 18. The Hampden Township Action and the Upper Allen Township Action involve separate contracts. The Hampden Township Action is based upon Plaintiff s contract with Hampden Township and the services that Plaintiff specifically provided to Hampden Township. In comparison, the Upper Allen Township Action is based upon Plaintiff s contract with Upper Allen Township and the services that Plaintiff specifically provided to Upper Allen Township. 4 19. Whether Hampden Township and Upper Allen Township breached their respective contracts with Plaintiff and failed to pay Plaintiff for its services is a question that must be separately examined for each contract. The issue in the Hampden Township Action is Hampden Township's performance and alleged breach of its (and only its)contract with Plaintiff. The issue in the Upper Allen Township Action is Upper Allen Township's performance and alleged breach of an entirely separate contract with Plaintiff. These issues are completely distinct from each other and the performance or nonperformance of each contract is wholly separate from and irrelevant to the performance or nonperformance of the other contract. See id. at 787 (refusing to consolidate two breach of contract actions based on separate contracts as the performance of each contract was a separate issue to be determined). 20. Because the actions involve different contracts and facts, the evidence that is necessary for each action is substantially different. If the actions are consolidated, Plaintiff will still be required to introduce evidence to show both Hampden Township's breach of the Hampden Township MSA and to show Upper Allen Township's breach of the Upper Allen Township MSA. In addition, Hampden Township and Upper Allen Township will still have to each introduce their own separate evidence and separate witnesses to defend against Plaintiff s claims. As such, the consolidation of the actions would not serve the convenience of the parties or this Court. 21. Finally, if the actions are consolidated, it will increase the likelihood of prejudice to Plaintiff and the likelihood of confusion in the arbitration of these actions. Plaintiff's actions against Hampden Township and Upper Allen Township are based on distinct and separate contracts. If Hampden Township and Upper Allen Township are allowed to simultaneously introduce and comingle evidence regarding the contracts and their performance, it is likely that 5 the contracts and Plaintiff's separate claims against the defendants will become blurred. It is also likely that each defendant will try to use evidence that would otherwise be inadmissible against Plaintiff if the actions remained separate and were each arbitrated on their own. 22. Based on the above considerations, the Hampden Township Action and the Upper Allen Township Action should not be consolidated under Pa.R.C.P. 213. WHEREFORE, Plaintiff, Benchmark Energy Solutions, Inc., respectfully requests that this Court deny Defendant Hampden Township's Motion to Consolidate Actions. By: G r�l Steve Petrikis, Esq. Pa. I.D. No. 34426 Rachel D. Felton, Esq. Pa. I.D. No. 205929 535 Smithfield Street, Suite 800 Pittsburgh, PA 15222 (412) 918-1100 Attorneys for Plaintiff 6 VERIFICATION I, RACHEL D. FELTON, in my position as ATTORNEY and duly authorized representative of BENCHMARK ENERGY SOLUTIONS, INC., depose and say subject to the penalties of 18 Pa. Cons. Stat. Ann. §4904, relating to unsworn falsification to authorities, that the facts set forth in the foregoing ANSWER TO PETITION TO RULE TO SHOW CAUSE ON DEFENDANT HAMPDEN TOWNSHIP'S MOTION TO CONSOLIDATE ACTIONS FOR HEARING PURSUANT TO Pa.R.C.P. 213 are true and correct to best of my personal knowledge, information and belief. By: f(t C ( h�--- RACHEL D. FELTON, ESQUIRE CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing ANSWER TO PETITION TO RULE TO SHOW CAUSE ON DEFENDANT HAMPDEN TOWNSHIP'S MOTION TO CONSOLIDATE ACTIONS FOR HEARING PURSUANT TO Pa.R.C.P. 213 has been served by mailing a copy, United Stated mail, first class,postage prepaid, this 22cd day of August 2013, to the following: Keith O. Brenneman, Esquire Snelbaker&Brenneman, P.C. 44 West Main Street Mechanisburg, PA 17055 Rachel D. Felton, Esquire f � F Cl At.IG 28 P J' 3 Keith O.Brenneman,Esquire Attorney ID No. 47077 Snelbaker&Brenneman,P.C. 44 West Main Street Mechanicsburg, PA 17055 (717)697-8528 Solicitor for Hampden Township BENCHMARK ENERGY SOLUTIONS, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff V. NO. 2011-9396 CIVIL TERM HAMPDEN TOWNSHIP, CIVIL ACTION—LAW Defendant BENCHMARK ENERGY SOLUTIONS, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 2012-996 CIVIL TERM UPPER ALLEN TOWNSHIP, CIVIL ACTION—LAW Defendant REPLY OF HAMPDEN TOWNSHIP TO PLAINTIFF'S NEW MATTER Defendant Hampden Township, by its Solicitor, Snelbaker& Brenneman, P.C., submits this Reply to the New Matter contained in Plaintiff's Answer to Petition For Rule To Show Cause as follows: 15. Denied. The Hampden Township Action and Upper Allen Township Action should be consolidated for the reasons noted in the Motion To Consolidate Actions filed by Hampden LAW OFFICES Township in this matter. SNELBAKER& BRENNEMAN, P.C. , 16. Denied. Paragraph 16 of Plaintiff's New Matter contains a series of unwarranted conclusions of law to which no response is required by this party. 17. Denied. The allegations in paragraph 17 of Plaintiff's New Matter are denied for three reasons set forth in Defendant Hampden Township's Motion To Consolidate,the averments of which Motion are incorporated by reference herein. 18. Admitted in part; denied in part. It is admitted that the Hampden Township Action and the Upper Allen Township Action involve separate contracts. Although such actions involve separate contracts,the contracts are substantially the same and the bases associated with Plaintiff's performance or lack of performance under each contract are likewise substantially the same. 19. Admitted in part; denied in part. It is admitted that whether Hampden Township or Upper Allen Township breached their respective contracts with Plaintiff is a question that must be separately examined for each contract. However, both contracts were terminated by Hampden Township and Upper Allen Township due to Plaintiff's failure to provide services to both townships under contracts that were substantially the same. 20. It is denied that because the actions involved different contracts and facts that the evidence for each action is substantially different. On the contrary,the contracts are substantially the same and an additional substantial similarity between each case is Plaintiff's failure to provide services as required under the contracts with Hampden Township and Upper Allen Township. 21. Denied. It is denied that if the actions were consolidated it will increase the likelihood of prejudice to Plaintiff and the likelihood of confusion in the arbitration in these LAW OFFICES SNELBAKER& actions. The contracts being substantially similar and Plaintiff's failure to provide services as BRENNEMAN, P.C. 2 required under the two contracts provide substantial similarities between the actions and will not lead to confusion in the arbitration of these actions. In addition, the arbitration panel will certainly be able to properly determine what evidence is and is not admissible against Plaintiff if the actions are consolidated. 22. Denied. The Hampden Township Action and Upper Allen Township Action should be consolidated for reasons set forth in Defendant Hampden Township's Motion To Consolidate Actions. WHEREFORE, Defendant Hampden Township requests this Court to issue an order consolidating the cases at No. 2011-9396 and No. 2012-996 for purposes of arbitration hearing. SNELBAKER&BRENNEMAN,P. C. By: Keith O.Brenneman, Esquire 44 West Main Street Mechanicsburg,PA 17055 Date: August 28, 2013 (717)697-8528 Solicitor for Defendant Hampden Township LAW OFFICES SNELBAKER& BRENNEMAN, P.C. 3 VERIFICATION I verify that the statements made in the foregoing Reply are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Keith O. Brenneman Date: August 28, 2013 LAW OFFICES SNELBAKER& BRENNEMAN, P.C. - CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE,hereby certify that I have, on the below date, caused a true and correct copy of the foregoing Reply to be served upon the persons and in the manner indicated below: FIRST CLASS MAIL, POSTAGE PREPAID ADDRESSED AS FOLLOWS: Rachel D. Felton, Esquire Metz Lewis Brodman Must O'Keefe, LLC 11 Stanwix Street, 18th Floor Pittsburgh, PA 15222 J. Stephen Feinour, Esquire Nauman, Smith, Shissler& Hall, LLP P. O. Box 840 Harrisburg, PA 17108-0840 SNELBAKER& BRENNEMAN, P.C. By: Keith O. Brenneman, Esquire 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717)697-8528 LAW OFFICES Solicitor for Defendant Hampden Township SNELSAKER& BRENNEMAN, P.C. Date: August 28, 2013 Fib Metz Lewis Brodman Must O'Keefe LLC 1ye PRO 1,� j" Steven Petrikis,Esquire 1013Slp IA Pa. I.D.No. 34426 23 p Rachel D.Felton,Esquire �`1JN$ Pa. I.D.No. 205929 PC;' -AN11 co 535 Smithfield Street, Suite 800 VA�l�UNty Pittsburgh,Pennsylvania 15222 Phone: (412)918-1100 Email: setkis @metzlewis.com rfelton @metzlewis.com Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA BENCHMARK ENERGY ) ARBITRATION SOLUTIONS, INC., ) CASE NO. 2011-9396 CIVIL Plaintiff, ) VS. ) HAMPDEN TOWNSHIP, ) Defendant. ) NOTICE OF CHANGE OF ADDRESS TO: CLERK OF COURTS Kindly amend your docket to reflect the change of address for counsel for Plaintiff Benchmark Energy Solutions, Inc. to 535 Smithfield Street, Suite 800, Pittsburgh, PA 15222. By: &,W 0 W A, Steve Petrikis, Esq. Pa. I.D.No. 34426 Rachel D. Felton, Esq. Pa. I.D. No. 205929 535 Smithfield Street, Suite 800 Pittsburgh, PA 15222 (412) 918-1100 Attorneys for Plaintiff - r CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing NOTICE OF CHANGE OF ADDRESS has been served by mailing a copy, United Stated mail, first class, postage prepaid, this 18 day of September 2013,to the following: Keith O. Brenneman, Esquire Snelbaker&Brenneman, P.C. 44 West Main Street Mechanisburg, PA 17055 e Rachel D. Felton, Esquire BENCHMARK ENERGY SOLUTIONS, IN THE COURT OF COMMON PLEAS INC,, OF CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. CIVIL ACTION - LAW HAMPDEN TOWNSHIP, Defendant No. 11-9396 Civil Term BENCHMARK ENERGY SOLUTIONS, IN THE COURT OF COMMON PLEAS INC., OF CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA C= V. CIVIL ACTION — LAW Mai a . •;:0 UPPER ALLEN TOWNSHIP, NO. 12-996 �� = mac', Defendant IN RE: MOTION OF DEFENDANT HAMPDEN TOWNSHIP TO CONSOLIDATE ACTIONS FOR HEARING PURSUANT TO Pa.R.C.P. 213 ORDER OF COURT AND NOW this 23rd day of September, 2013, after consideration of Hampden Township's Motion to Consolidate Actions for Hearing Pursuant to Pa.R.C.P. 213, the Answer filed by Plaintiff, and hearing held on September 16, 2013, and noting Upper Allen Township's concurrence to the motion: IT IS HEREBY ORDERED AND DIRECTED that the Motion to Consolidate is GRANTED. The two above-captioned actions are consolidated for the purpose of an arbitration hearing. By the Court, k' A SA- M. L. Ebert, Jr., J. Rachel D. Felton, Esquire Steven Petrikis, Esquire Attorneys for Plaintiff �tephen Feinour, Esquire Attorney for Defendant, Upper Allen Township eith O. Brenneman, Esquire Attorney for Defendant, Hampden Township Q 3 Z71 j Metz Lewis Brodman Must O'Keefe LLC NO T4 h Steven Petrikis, Esquire 2013 OCT _ _ Pa.I.D.No. 34426 ,, 7 Of 11: 5> Rachel D. Felton, Esquire ?�� t'IB^ERL H ND Pa.I.D.No. 205929 Pt NNs YLVAtilUNTY 535 Smithfield Street, Suite 800 Pittsburgh,Pennsylvania 15222 Phone: (412) 918-1100 Email: spetrikis @metzlewis.com rfelton@metzlewis.com Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA BENCHMARK ENERGY ) ARBITRATION SOLUTIONS, INC., ) ) CASE NO. 2011-9396 CIVIL Plaintiff, ) ) vs. ) ) HAMPDEN TOWNSHIP, ) ) Defendant ) ) ) BENCHMARK ENERGY ) ARBITRATION SOLUTIONS, INC., ) ) CASE NO. 2012-996 CIVIL Plaintiff, ) ) vs. ) ) UPPER ALLEN TOWNSHIP, ) ) Defendant. ) AMENDED PETITION FOR APPOINTMENT OF BOARD OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF THIS COURT: Metz Lewis Brodman Must and O'Keefe LLC, counsel for Plaintiff Benchmark Energy Solutions, Inc., in the above actions, respectfully represents that: 1. The above-captioned actions are at issue. 2. The claim of the plaintiff in the action against Hampden Township is $28,499.04. The claim of the plaintiff in the action against Upper Allen Township is $8,191.44. 3. The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: Keith O. Brenneman and Richard C. Snelbaker of Snelbaker& Brenneman, P.C., counsel for Hampden Township, and J. Stephen Feinour, Spencer G. Nauman, Jr., Craig J. Staudenmaier, Benjamin C. Dunlap, Jr., Joshua D. Bonn, and Nathaniel J. Flandreau of Nauman Smith Shissler&Hall, LLP, counsel for Upper Allen Township. WHEREFORE, Benchmark Energy Solutions, Inc. respectfully requests this Honorable Court to appoint three (3) arbitrators to whom the cases shall be submitted. A Proposed Order is attached hereto. By: titLkt. U (t Steve Petrikis, Esq. Pa. I.D. No. 34426 Rachel D. Felton, Esq. Pa. I.D. No. 205929 535 Smithfield Street, Suite 800 Pittsburgh, PA 15222 (412) 918-1100 Attorneys for Plaintiff 2 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing AMENDED PETITION FOR APPOINTMENT OF BOARD OF ARBITRATORS has been served by mailing a copy, United Stated mail, first class,postage prepaid, this 2cd day of October 2013, to the following: Keith O. Brenneman, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street Mechanisburg, PA 17055 J. Stephen Feinour, Esquire Nauman Smith Shissler&Hall LLP 200 North 3rd Street, 18th Floor Harrisburg, PA 17101 Rachel D. Felton, Esquire o IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA BENCHMARK ENERGY ) ARBITRATION SOLUTIONS, INC., ) ) CASE NO. 2011-9396 CIVIL Plaintiff, ) ) vs. ) ) HAMPDEN TOWNSHIP, ) ) Defendant ) ) ) BENCHMARK ENERGY ) ARBITRATION SOLUTIONS,INC., ) ) CASE NO.2012-996 CIVIL Plaintiff, ) vs. ) ri CO UPPER ALLEN TOWNSHIP, ) a Defendant. ) ORDER OF COURT AND NOW, £Vt? Cf , 2013, in consideration of the foregoing petition, tt A v/1 1492 , Esq. _�r �y1�� , Es q., and 112i.fQ_px O(/4fQ.1/2..Q.J , Esq. are appointed arbitrators in the above- captioned actions as prayed for. BY THE COURT: /(41. Kevin . Hess, P.J. ead el b. 11-10,, y 14/4-k. D. trenv►eiwt.an iol el/3 /Lgv Til-ILLE-L7)-QFPICE 660-4 Metz Lewis Brodman Must O'Keefe LLC p R fil.fit3NO TAR ( V Steven Petrikis,Esquire 26(3 OCT Pa.I.D.No. 34426 7 jj: J5. Rachel D.Felton,Esquire CU'9f3ERLAND Pa. I.D.No. 205929 PENNS YLvAN!4h'T Y 535 Smithfield Street, Suite 800 Pittsburgh,Pennsylvania 15222 Phone: (412) 918-1100 Email: spetrikis @metzlewis.com rfelton @metzlewis.com Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA BENCHMARK ENERGY ) ARBITRATION SOLUTIONS, INC., ) ) CASE NO. 2011-9396 CIVIL Plaintiff, ) ) vs. ) ) HAMPDEN TOWNSHIP, ) ) Defendant ) ) ) BENCHMARK ENERGY ) ARBITRATION SOLUTIONS, INC., ) ) CASE NO. 2012-996 CIVIL Plaintiff, ) ) vs. ) ) UPPER ALLEN TOWNSHIP, ) ) Defendant. ) AMENDED PETITION FOR APPOINTMENT OF BOARD OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF THIS COURT: Metz Lewis Brodman Must and O'Keefe LLC, counsel for Plaintiff Benchmark Energy Solutions, Inc., in the above actions,respectfully represents that: 1. The above-captioned actions are at issue. 2. The claim of the plaintiff in the action against Hampden Township is $28,499.04. The claim of the plaintiff in the action against Upper Allen Township is $8,191.44. 3. The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: Keith O. Brenneman and Richard C. Snelbaker of Snelbaker& Brenneman, P.C., counsel for Hampden Township, and J. Stephen Feinour, Spencer G. Nauman, Jr., Craig J. Staudenmaier, Benjamin C. Dunlap, Jr., Joshua D. Bonn, and Nathaniel J. Flandreau of Nauman Smith Shissler&Hall, LLP, counsel for Upper Allen Township. WHEREFORE, Benchmark Energy Solutions, Inc. respectfully requests this Honorable Court to appoint three (3) arbitrators to whom the cases shall be submitted. A Proposed Order is attached hereto. By: tAcW. Ca -- Steve Petrikis, Esq. Pa. I.D. No. 34426 Rachel D. Felton, Esq. Pa. I.D. No. 205929 535 Smithfield Street, Suite 800 Pittsburgh, PA 15222 (412) 918-1100 Attorneys for Plaintiff 2 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing AMENDED PETITION FOR APPOINTMENT OF BOARD OF ARBITRATORS has been served by mailing a copy, United Stated mail, first class, postage prepaid, this 2cd day of October 2013, to the following: Keith O. Brenneman, Esquire Snelbaker&Brenneman, P.C. 44 West Main Street Mechanisburg, PA 17055 J. Stephen Feinour, Esquire Nauman Smith Shissler&Hall LLP 200 North 3rd Street, 18t Floor Harrisburg, PA 17101 c mil' Rachel D. Felton, Esquire g�tiG�4 /i-' N , a 7 az-a 7??A/5') ,1N c ° In The Court of Common Pleas of Cumberland Plaintiff //_ q39(42, m/tF/V `7a w County, Pennsylvania No. Defendant Civil Action—Law. Oath We do solemnly swear (or affirm) that we will support; obey and defend the Constitution of the United States and the Const'+.!ion of this Commonwealth and that we will discharge the duties of our office /th fide ' �A / ci- 1 Th � �S IJQ�P.2IUrZ /��(y(/JJ //�J/fJ'jQ S1,I1a .l.r2 Signature )�J/" ' , /# /C/ (3:0.4,1, . U./ AN.; r (1.. 11114M'/ ' V 'I i_xi, Name (C airman) Name Name C �e L k.t.2..dli- k1.1A , zi f 1-i; gkcs •''1/ZChk/l ifio JC, l Law Firm Law Firm Law Firm b/ � ) ' S tT / Xc lo, -e- s� I / G- 4,67z- cd^ Address Address Address • &rE5/e /1/7 ✓- ( k 1 a J C� 1i e I�� rs �- � s� I7U ? City, City, Zip City, ZIn Award We the undersigned arbitrators; having been duly appointed and sworn (or affirmed), make the following award: , (Note:.If damages for delay are award they,shall be separately stated,) /t-' b i/I r4 11-,e o� 2 181✓✓-1. 1� /". 7 Xs 3&e, -3 `9✓ 'b /2& 42/.Ai ` ,c-=A/Z)) /1 .-:=�ro?trator. i .,- ts� nsert-name-1! app ica `:.Dale oT_ Hearing: //I WiLl iffi _ I / 1 // 1 Y 1 (Char a l i L'7 ate Of Award: 1 / (14A„....) 1,-,.._A_ _. .,..,.,::, . „.. : „. :: Notice of Entry of Award Now, the /rim day of , 20 1 , at 3:�S . P .M., the above award was entered upon the docket and notic,thereof given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: S y/6—S' By: 2-77/Prothonotary Deputy E ., 15 FA) e' : �LrG Metz Lewis Brodman Must O'Keefe LLC Steven Petrikis, Esquire Pa. I.D. No. 34426 Rachel D. Felton, Esquire Pa. I.D. No. 205929 535 Smithfield Street, Suite 800 Pittsburgh, Pennsylvania 15222 Phone: (412) 918-1100 Email: spetrikis@metzlewis.com rfelton@metzlewis.com Attorneys for Plaintiff . LE:J-CFFir .FROTHONOTAIO 2014 NR 27 MI 10: 25 CUMBERLAND COW. TY PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BENCHMARK ENERGY SOLUTIONS, INC., Plaintiff, VS. HAMPDEN TOWNSHIP, Defendant. ARBITRATION CASE NO. 2011-9396 CIVIL PRAECIPE TO SATISFY JUDGMENT AND DISCONTINUE TO: CLERK OF COURTS Kindly satisfy the judgment entered on behalf of Plaintiff, Benchmark Energy Solutions, Inc., and against Defendant Hampden Township, and mark the above-captioned case Discontinued as to Defendant. By: Act--k Steve Petrikis, Esq. Pa. I.D. No. 34426 Rachel D. Felton, Esq. Pa. I.D. No. 205929 535 Smithfield Street, Suite 800 Pittsburgh, PA 15222 (412) 918-1100 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Praecipe to Satisfy Judgment and Discontinue has been served by mailing a copy, United Stated mail, first class, postage prepaid, this 26th day of March 2014, to the following: Keith 0. Brenneman, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street Mechanisburg, PA 17055 Rachel D. Felton, Esquire