Loading...
HomeMy WebLinkAbout12-0996COM1iIONWI5ALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of CUMBERLAND NOTICE OF APPEAL FROM I I MAGISTERIAL DISTRICT JUDGE JUDGMENT COMMON PLEAS No. I off-'! SIG Lw. l NOTICE OF APP EAt Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Magisterial District Judge on the date and in the case referenced below. Upper Allen Township 100 Gettysburg Pike Mechanicsburg 1/18/2012 Benchmark Energy Solutions, Inc. PA 17055 V. Upper Allen Township MJ-09305-CV0000364-2011 This block will be signed ONLY when this notation is required under R.C.P.D.J. No. 10088. This Notice of Appeal, when received by the Magisterial District Judge, will operate as a SUPERSEDEAS to the judgment for possession in this case. Signature of Prothonotary or Deputy was action before a Magisterial District Judge, A COMPLAINT MUST BE FILED within twenty (20) days after filing the NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before Magisterial District Judge. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Benchmark Energy Solutions, Inc. appellee(s), to file a complaint in this appeal (Common Pleas No. Id-- Q1 G Name of appellee(s) L ?•I ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of appellant or attorney or agent J. Stephen Feinour, Esquire RULE: To Benchmark Energy Solutions, Inc. appellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date:°Zz 2012 V//) Situ ?onotary or Deputy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTITRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. MDJ-09-3 I Mark Martin AOPC 312-05 t ILEU-UF I'"' Lit: THE PROTHONO IAR 2012 FEB 16 AM 8-* 2 7 WftYLYANI?A TY ?t4+- g1..73 go X71 I -l-, PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF Dauphin AFFIDAVIT: I hereby (swear) (affirm) that I served ® a copy of the Notice of Appeal, Common Pleas No. upon the Magisterial District Judge designated therein on (date of service) , 2012, ? by personal service ® by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) Benchmark Energy Solutions. Inc., on , 2012 ?by personal service ® by (certified) (registered) mail, sender's receipt attached hereto. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF , 2012 Signature of official before whom affidavit was made Title of official My commission expires on , 20 Signature of affiant AOPC 312-05 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Notice of Judgment/Transcript Civil Case Mag. Dist. No: MDJ-09-3-05 MDJ Name: Honorable Mark Martin Address: 507 North York Street Mechanicsburg, PA 17055 Telephone: 717-766-4575 John Stephen Feinour, Esq. Nauman Smith Shissler ET AL 200 N 3RD St PO Box 840 Harrisburg, PA 17108-0840 Disposition Summary Docket No Plaintiff Defendant MJ-09305-CV-0000364-2011 Benchmark Energy Solutions, Inc Upper Allen Township Judgment Summary Participant Joint/Several Liability Individual Liability Benchmark Energy Solutions, Inc $0.00 $0.00 Upper Allen Township $0.00 $4,248.72 Benchmark Energy Solutions, Inc V. Upper Allen Township Docket No: MJ-09305-CV-0000364-2011 Case Filed: 10/24/2011 Disposition Disposition Date Judgment for Plaintiff 01/18/2012 Amount $0.00 $4,248.72 Judgment Detail (*PostJudgment) In the matter of Benchmark Energy Solutions, Inc vs. Upper Allen Township on 1/18/2012 the disposition is Judgment for Plaintiff and judgment was awarded as follows: Judament Component Joint/Several Liability Individual Liability Deposit Applied Amount Civil Judgment $0.00 $4,095.72 $4,095.72 Filing Fees $0.00 $153.00 $153.00 Grand Total: $4,M.1z ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTITRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. _yf"' .? yyI Date Magisterial District Judge Mark Martin certify that this is a rue an correct copy o the record o the proceedings containing the judgment. Date Magisterial District Judge Mark Martin MDJS 315 Page 1 of 2 Printed: 01/18/2012 5:58:48PM Benchmark Energy Solutions, Inc V. Upper Allen Township Docket No.: MJ-09305-CV-0000364-2011 Participant List Private(s) John Stephen Feinour, Esq. Nauman Smith Shissler ET AL 200 N 3RD St PO Box 840 Harrisburg, PA 17108-0840 Plaintiff(s) Benchmark Energy Solutions, Inc 1500 Cochran Road, Suite 1003 Pittsburgh, PA 15243 Defendant(s) Upper Allen Township 100 Gettysburg Pike Mechanicsburg, PA 17055 MDJS 315 Page 2 of 2 Printed: 01/18/2012 5:58:48PM F LED-OFF IC;: O THET OTNONOM-0 2012 FEB 21 AM 11: 52 CIUM$ERLAND COUNTY PENNSYLVANIA PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF Dauphin ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served 12-996 Civil ® a copy of the Notice of Appeal, Common Pleas No. upon the Magisterial District Judge designated therein on 2012, ? by personal service ® by (certified) (registered) mail, (date of service) 2 16 sender's receipt attached hereto, and upon the appellee, (name) Benchmark Energy Solutions, Inc., on 2 1 6, 2012 ?by personal service ® by (certified) (registered) mail, sender's receipt attached hereto. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS 1 6±hDAY OF Pe-h.2012 nature of official hefore whom affr it was made I nature COMMONW OF PENNSYLVANIA ''JH0 SYLVANIA NOTARIAL SEAL \RIAL SEAL Lje?m ette Ch elgren, Notary Public Lle,ai'l elgren, Notary Public of Harrisburg, Dauphin County ;burg, Dauphin County ommission expires February 15, 2013 n,e fires F? 15, 2013 • Lr! CFRTIFIED MAIL RECEIP rl FOr delivery -0 Ln Ir 0-LIP [?- ip N C CsfftdFe C3 Relum Receipt Fee (Endcrasrrreal Required) C3 ReeMcled Dqpfty F,9 O Total Pomp K151" 1 1500 A n / 41" V C71n urre of affi-ant tP) Ln 1 OFF 7 ICIAL Ir $ , lvs an CerdW Fee ? , qs N ° C3 O FjeWm RGOW F60 (Endoreemeot Regolred) • W" ° ReshicMd DeiW"Fee EndorserrwrtRequireM 9 ..?` a Total Postage & Few 4 $ ? Ma&-Dist. N0.199:92.3- C3 '507 North York street ' i -------.rte--arwar« Cn COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of CUMBERLAND IVQTr-r NOTICE OF APPEAL FROM ,..j MAGISTERIAL DISTRICT JUDGE JUDGMENT -' COMMON PLEAS No. •?-'?trlG C? gotice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Magisterial District )udge on the date and in the case referenced below. Jpper Allen Township 100 Gettysburg Pike Mechanicsburg PA 17055 1/18/2012 Benchmark Energy Solutions, Inc. V8 Upper Allen Township No. MJ-09305-CV0000364-2011 This block will be signed ONLY when this notation is required under F'}a. R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the Magisterial District Judge, will )perate as a SUPERSEDEAS to the judgment for possession in this case. Signature of Prothonotary or Deputy tj. _/?.- was Claimant (see Pa. R.C.P.D.J. No. before a Magisterial District Judge, A COMPLAINT MUST BE FILED within twenty (20) days after filing the NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before Magisterial District Judge. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Benchmark Energy Solutions, Inc. appellee(s), to file a complaint in this appeal Name of appellee(s) (Common Pleas No. C 9 LTV ?? ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. 1 ?-- i2ell-1. L..? Signature of appellant or attorney or agent J. Stephen Feinour, Esquire RULE: To Benchmark Energy Solutions, Inc. appellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. / Date:. ?? 2012 ?Lt P?/ ? na u of of ry o putt' YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTITRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. MDJ-09-3 I Mark Martin AOPC 312-05 F iLEU-UFF.lC ? THE PROTHONOTARY 2012 FEB 16 AM 8: 27 rY ?ILSY? COUNTY __ ___ lUE0 - 0 F F iCi" NAUMAN, SMITH, SHISSLER & HALL, LLP By: J. Stephen Feinour, Esquire 2012 FEB 23 PM 1. 43 Attorney I.D. No. 24580 &%flship 200 North Third Street, 18'' Floor AttorneY%JW P. O. Box 840 Harrisburg, PA 17108-0840 T: (717) 236-3010/F: (717) 234-1925 BENCHMARK ENERGY SOLUTIONS, INC. Appellee vs. UPPER ALLEN TOWNSHIP, Appellant COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2012-996-Civil CERTIFIED MAIL RETURN RECEIPT CARDS Co Plate Rems 1, 2, and 3, it 4 H Restricted ' complete P Your name an 1MY is desired. s that we can ^ on the reverse a Attach this return the card to you. Or on card to the back of the matlpiece, the front if spy Permits. 1 • Article Addressed to: 1500 Ene V Solutions, Inc. Road, suite 1003 P'ttsburgW A 15243 A. Suture ? ? Agent X /?.C? S. Received by (Printed N ? Addre; ame) C. Dard„s d.._ D. Is delh?ery address da ? If YES, enter deliv nt front item 1? Yes ?Y address below: ? No 3. Service Type ?Cetttfled M il ]d,a A ?1 Oc a ? Express Mall C3 Regist,,ed ? Return Recei ? p insured Mall ? C.O D t for Merchandise 9 it 2. Article Number (rrarrsfer /? . . 4• Restricted DMWV (Extra Fee) Addressee ? ? PS Form 3811, February 2004 ?011 04 7 0 0o02 ?99s 515 5 Yes C. Date ? Iv aewived by (Printed Name Domestic Return Reoelpt %A -- Yes ? Is delivery address d ?' o 1 1. Article Addressed to: 02695-02 hLf ff YES, enter delivery r. ` The H 1e Mark Martin 1+;Olf Mag. . No. MDJ-09-3-05 507 Y rk Street 3) SWAM TYPO Mail ? Expr'esa Mail i M? burg, PA 17055 se Merchand C3 RegWwed [3 Retum Receipt for ? Insured Mail 0 C.O.D. Restricted Delivery? P" Fee) ? Yes 4 C I VI 1- . 2. Article Number 0 4 7 0 0 0 0 2 7`19 5 516 2 ?011 (Transfer ft m service IabeQ 102595 PS Form 3811, February 2004 Domestic Return Receipt IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BENCHMARK ENERGY SOLUTIONS, INC., ARBITRATION DIVISION CASE NO.: 12-996 Civil Plaintiff, VS. UPPER ALLEN TOWNSHIP, Defendant. COMPLAINT IN CIVIL ACTION 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 Metz Lewis Brodman Must O'Keefe LLC Steve Petrikis, Esquire i 01 Pa. I.D. No. 34426 :Z? ::0 I r-r . Rachel D. Felton, Esquire -< > - a ,' Pa. I.D. No. 205929 @ =,= 11 Stanwix Street, 18th Floor > c:- 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. UPPER ALLEN TOWNSHIP, Defendant. ARBITRATION CASE NO. 12-996 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 r , Metz Lewis Brodman Must O'Keefe LLC Steve Petrikis, Esquire Pa. I.D. No. 3,1426 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 rfeltoii@metzlewis.com Attorneys for :Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BENCHMARK ENERGY SOLUTIONS, INC., Plaintiff, vs. UPPER ALLEN TOWNSHIP, Defendant. ARBITRATION CASE NO. 12-996 Civil 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, Upper Allen Township, is a municipality with an office located at 100 Gettysburg Pike, Mechanicsburg, Pennsylvania 17055. JURISDICTION AND VENUE 3. This court has original jurisdiction of this matter pursuant to 42 Pa.C.S. § 931. 2 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 ("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. 3 I 11. On December 16, 2009, Upper Allen 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 December 16, 2009, Upper Allen 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 Upper Allen Township in the collective purchase of energy supplies and services, seek competitively priced electricity generation, and process utility bills. 14. In turn, Upper Allen 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 attached to the MSA ("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 December 16, 2009, BESI and Upper Allen 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 Upper Allen Township. A true and correct copy of the SUMC Agreement is attached hereto as Exhibit D. 4 e ? 18. On or about May 27, 2010, Upper Allen Township entered into an Electricity Service 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 Upper Allen Township. 20. Under the Liberty Power Contract, Upper Allen 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 Upper Allen Township with electric generation. 21. In December of 2009, BESI agreed to amend the Fee Schedule under the MSA and lowered the Sponsorship and Management Fee and Performance Fee that Upper Allen Township was to pay to BESI for its services. The fee for Monthly Billing for each Utility Account remained the same. 22. Per the amended Fee Schedule, BESI was to be paid a Sponsorship and Management Fee of 1.8% and a Performance Fee of 21.6%. 23. The Liberty Power Contract was for a term of 7 months and began on the first utility transfer date occurring after June 1, 2010. 24. Upon information and belief, Upper Allen Township received electric generation services under the Liberty Power Contract between August of 2010 and February of 2011. 25. On or about October 14, 2010, Upper Allen Township sent a letter to BESI wherein Upper Allen Township purported to identify 4 areas where BESI was allegedly in 5 breach of the MSA. A true and correct copy of the October 14, 2010, Letter is attached hereto as Exhibit F. 26. In the October 14, 2010, Letter, Upper Allen Township requested that BESI rectify the alleged breaches within 30 days and Upper Allen Township stated that it would tenninate the MSA if BESI did not rectify the alleged breaches within 30 days. 27. On October 22, 2010, 8 days later, BESI sent Upper Allen Township a letter that identified the steps that BESI had taken and was taking to satisfy Upper Allen Township's demands. A true and correct copy of the October 22, 2010, Benchmark Letter is attached hereto as Exhibit G. 28. Despite BESI's efforts and even though the 30 day period set forth in Upper Allen Township's October 14, 2010, letter had not passed, on November 2, 2010, Upper Allen Township sent BESI a letter wherein Upper Allen Township terminated the MSA effective November 15, 2010. A true and correct copy of the November 2, 2010, Termination Letter is attached hereto as Exhibit H. 29. From August of 2010 through September of 2010, BESI processed Upper Allen 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 Upper Allen Township all of the electric distribution and generation bills for Upper Allen Township. 30. After September of 2010, BESI was unable to process Upper Allen Township's electric utility bills because Upper Allen Township stopped PPL from forwarding its electric bills to BESI and prevented BESI's performance of certain obligations under the MSA. 6 31. Upper Allen Township stopped PPL from forwarding its electric generation bills to BESI even though it continued to receive services under the Liberty Power Contract. 32. Despite receiving services under the Liberty Power Contract and MSA, Upper Allen Township did not pay BESI the full amount of the Fees due to BESI between August of 2010 and February of 2011. 33. On May 23, 2011, BESI sent a letter to Upper Allen Township demanding the payment of 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 I. 34. Upper Allen Township did not respond to the Demand Letter. COUNT L• BREACH OF CONTRACT 35. BESI incorporates Paragraphs 1 through 34 as if fully set forth herein. 36. BESI and Upper Allen Township were parties to the MSA. 37. Among other things, the MSA required Upper Allen Township to pay BESI certain Fees. 38. BESI fully and completely performed its duties under the MSA. 39. Upper Allen Township breached the MSA by failing to pay BESI certain Fees due under the MSA. 40. As a direct and proximate result of Upper Allen Township's breach of the MSA, BESI has suffered damages. WHEREFORE, Benchmark Energy Solutions, Inc., respectfully requests that judgment in excess of $8,191.44 plus continuing and additional interest, costs, and attorneys' fees be entered against Defendant Upper Allen Township. 7 I COUNT II UNJUST ENRICHMENT 41. BESI incorporates Paragraphs 1 through 40 as if fully set forth herein. 42. A benefit was conferred on Upper Allen Township by BESI, when BESI secured the Liberty Power Contract for Upper Allen Township and BESI processed Upper Allen Township's electric bills, including the electric generation bills under the Liberty Power Contract. 43. Upper Allen Township appreciated the benefit conferred on it by BESI as Upper Allen Township received monetary savings and services from BESI's work. 44. Under the circumstances, it would be inequitable for Upper Allen 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 $8,191.44 plus continuing and additional interest, costs, and attorneys' fees be entered against Defendant Upper Allen Township. COUNT III QUANTUM MERUIT 45. BESI incorporates Paragraphs 1 through 44 as if fully set forth herein 46. BESI performed services for Upper Allen Township by securing discounted electric generation prices for Upper Allen Township through the Liberty Power Contract and by processing Upper Allen Township's electric bills, including the electric generation bills under the Liberty Power Contract. 47. Upper Allen Township accepted the services of BESI. 48. BESI did not render its services gratuitously. 8 49. BESI is entitled to the value of the services it performed for Upper Allen Township. WHEREFORE, Benchmark Energy Solutions, Inc., respectfully requests that judgment in excess of 58,191.44 plus continuing and additional interest, costs, and attorneys' fees be entered against Defendant Upper Allen Township. Date: March 6, 2012 Respectfully submitted, METZ LEWIS BRODMAN MUST O'KEEFE LLC BY: 9Ctk W b r..e't { - 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 9 AMENDED AND RESTATED INTERGOVERNMENTAL 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. 9411, 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 17101-1577 (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. 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 governments so cooperating shall enter into joint agreements as may be deemed appropriate for those purposes; and EXHIBIT - 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: Recitals The recitals to this Agreement are incorporated herein by reference and shall, for all purposes, be part of this Agreement. Participants The following types of Local Governments or Political Subdivisions are deemed to be and may become Agencies, permitted to participate 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, 1972, together with municipal authorities, redevelopment authorities, housing authorities, parking authorities and industrial development authorities. I Designation 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. Services. Products and Equipment The services, products and equipment which are the subject of this Agreement include, but are not limited to, the following. a. Electricity, natural gas, steam and liquid faels, 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 Energy 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; f, Assist the CEO's financial advisors with the structure of any Financing, 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 g. 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. b. Enemy Proposal Upon receipt of Bids or negotiated prices for Energy Supplies and Services, the Energy Consultant will submit an Energy Proposal and the relevant Energy Contract to eacb participating Agency for its review. The Energy Proposal will contain (i) the 3 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 shalt retain its individual power and authority to accept or reject any agreement(s) presented by the CEO for the purchase of Energy Supplies and Service's, as it shall determine, and to execute and deliver all contracts, agreements or other documents in connection therewith; d. No Agency shall 'be liable for any cost, fee or expense which is not specifically set forth in the Energy Proposals or Energy Contracts as disclosed by the Energy Consultant andfor 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 1$0 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. Am2ncial Arraatrements a. The City anticipates that municipal bonds or leases (the "Financing") will be issued for the purpose of fimding the purchase of Energy Supplies and Services and the costs related thereto for each of the Agencies. b. Each Agency which has authorized, accepted and executed an Energy Contract under this Agreement, shaU make 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 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 be 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 ackmowledge 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 life 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 proprietary information, including bun not limited to records, files, documents, specifications, and other details (the "Confidential Information"), which will be disclosed between and among they Agencies and the Energy Consultant and other third parties 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 contained herein shall be extremely detrimental to the economic interests of all the Agencies. Therefore, at all tunes hereto, the Agencies and Energy Consultant agree that any Confidential Information may only be used consistent with the terms and conditions contained herein, including program implementation and may only be disclosed to third parties vrith the express reservation and protection afforded confidential and proprietary information. Within ten (10) days of the termination of this Agreement, such Confidential Information, and any copies thereof] must be returned to the proper Agency. 10. Severability In case any one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable is 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: 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 tennhude 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 competence in the field of municipal law and/or municipal finance, that such amendatory or supplemental instrument 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 and conditions of the Energy Contract and the terms and conditions of the Financing thereo£ 12. Nonce All demands, notices, approvals, consents, requests and other communications hereunder shall be in writing and shall be deemed to have been given whm delivered in person or by registered or certified 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 2. For the Harrisburg Redevelopment Authority: Wilmer Faust, Executive Director 6 Harrisburg Redevelopment Authority Rev. Dr. Martin, L_ King City Government Center Suite 40X S k W, 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. All assignments may be made only with the written consent of the participating Agencies bereto 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. WHEREAS, the City of Harrisburg and the parties hereto execute and deliver this Amended and Restated Intergovernmental Cooperation Agreement on the date first written above. CrN 0 B G By. 4QQ s R. Reed, Mayor By: t 4X 14r? James McCarthy, Cmiroller 7 4 EXHIBIT A IGCA JOINDER AGREEMENT Participant: Participant: A e(,% G w rl S hl' :'Address: 100 Ge-+-Y :5b Lt V% ? c Intending, to be legally bound herby joins in this INTERGOVERNMENTAL COOPERATION AGREEMENT dated as of 3 ` day of bece4,,,b ;-,v_ , fggct y 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 day of GG2wt ?e c , 200-1, ATTEST: Title: 10w r2S {1 i p t`'f cif, yi< I EXHIBIT BENCHM4RK Rite- gj 9016 ans, Inc. Agreement for utility information and Management Services BACKGROUND: '_-4?e ` r Alle-tiL t w }? , (Client) will be participating in the Power and Energy Purchase Program (the "PEP Program") and has executed a Joinder Agreement for the Intergovernmental Cooperation Agreement (the "tGCA') or the Joint Purchasing Agreement {the "JPA" ). The Client is currently served utilitiestservices such as natural gas, electricity and liquid fuels, and needs utility bill processing, ongoing information and an analysis of the consumption and costs of these utilities/services. BENCHMARKk Energy Solutions: Inc. (BEST) is the Energy Consultant to the PEP Program and advises the Agencies and Participants (local governments, their agencies non-profits and businesses) in the collective purchase of Energy Supplies and Services and also agrees to provide the foilovring additional services to the Client for their utility/services accounts. AQ=ats ( a ur lent </> (2) Electricity Accounts </> f SC G 3 C C J ; G f C ' is </> BENCHMARK will provide the Client with: I Competitively priced natural gas and liquid fuels commodity and delivery services that saves the Client money on their utility bills. if Competitively priced electricity generation (when available) that also saves the Client money on their utility bills. Ill Utility Bill Processing and Information to assure accurate bills and prompt delivery and payment of the utility bills. IV Management Information that enables the Client to make more effective business decisions. EXHIBIT I d 11.4ENC gy f 1t?// Inc. Eltcr t7'OitP60-nsj 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 utilitiestvendors to work with BSI in the preparation of their bills. BSI will provide: a. Consolidated Utility Billing: Collate, tabulate, summarize and report monthly to A/P the consumption, costs and the bill to pay each utility. b. Utility Management Reports: Annual Reports of Utility Management Information This Report includes, in a summary format, monthly usage, costs and savings, an analysis of historical information, recommendations for utility system improvements, and other agreed to information. 2 BENCHMARK's additional responsibilities: a. Maintain an accurate utility data base (profile) for each site including: property address, account#, service statistics (consumption and costs). b. Interface with the utilities and provide timely resolution of problems. c. Audit sample the bills for accuracy vs. the Tariffs, and report differences. 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 its best efforts to provide BSI with timely monthly utility bills. b. Report, on a timely basis, changes inutility accounts. BENCHMARK ?? ** Ei28rgy il'OJU&0.US, In C. Continued page 3 Agreement for Utility Information and Management Services 4 Term 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 at least (60) days in advance of an expiration date. 5 Confidentiality: Each Party acknowledges that all material and information which has or will come into the possession of the other party In connection with this Agreement or the performance hereof, consists of confidential and proprietary data, disclosure of which to or use try third parties will be damaging. Both parties therefore agree to hold such material confidential. Further, this Agreement may be Terminated under these conditions: Client reserves the right to terminate this Agreement for cause in the event of (1) a breach of this Agreement by BEST, (2) the failure of BEST, after written notice of the specifics from the Client, to perform its duties in a timely and professional manner. BEST reserves the right to terminate this Agreement for cause in the event of (1) a breach of this Agreement by the Client, (2) the failure of the Client after written notice of the specifics from BSI, to perform its duties in a timely and professional manner. In the event of a termination of this Agreement prior to a scheduled termination date, BEST shall be entitled to a pro rata payment for all previously unpaid service through the date of such termination. 7 Cost of Services: in consideration of the work to be performed and the work products to be delivered, Client shalt pay to BEST the Fees per the Fee Schedule currently in effect (see ScheduleA or its update attached). a. Sponsorship and Management (invoiced and due monthly) b. Monthly Billing for ea. Tariff Account (Invoiced and due monthly) c Monthly Billing for Commodity, Delivery or Generation, Transmission Accounts (invoiced and due monthly) d Special set-up Fee The cost to expand the Program Software, and input the Data Base for Consolidated Billing. e Annual Budget (for each Designated Utility) (Invoiced within 30 days of completion) Rate class dependent 2.5% to 5.0% Vol. /Class Dependent $2.20 - $6.601mo. NG per month $12.50 EL per month W33151150 plus Performance Fee per Fee Schedule $0.00 !Acct $ By Agreement Acceptance By execution and delivery of this Agreement, and intending to be legally bound hereby, r, the undersigned agrees to this Proposal as of ) kg 20 BRAC`fM4RK Enwv, S-Iaii=s, I-- X 1{ i Will' J. Weigh 9I ? U r f- AN f ?? (L U. r l? 1 1 c ?' President Schedule A Fee Schedule Intergovernmental Cooperation Agreement and Joint Purchasing Agreement Utility Bill Auditing and Processing Commercial Accounts - Natural gas/Electric 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 @ < $1,000/mo. Schedule above Electric GS1 @ > $1,000/mo. $8.33 Electric GS3 /LP all Nat Gas, Liq Fuels $12.50 Sponsorship, Management and Contract Negotiations (Max Fees) % mo contract Rate Classes Nat Gas (NT/CT) and all Electric 2.5% Rate 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/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 = EL Rate Classes NT, CT, LFD, IS#2 = NG Rate Classes Effective 10/01/07 Edited 10/01/09 Edited 11/23/09 B11:N("H LA, . Enerp, Solufia . Inc. This agreement is entered into on the ? day of en,20C , by and among BENCHMARK Energy Sohuions,. Inc., (BES111, 1500 Cochran Road, Ste 1003, Pittsburgh, PA 15243, and Seven - Utility Management Consultants, Ltd., ("SUMC") 12300 Dundee Ct, Suite 215, Cypress, TX 77421, ("SUMC"), and U??e-Ar e4l Tr:+,,?r\5k-ID, iec Ge-4YSLurq R-ke- l ;ch i?tcsbc rcl ("CIENT° ). WHEREAS, BENCHMARK Energy Solutions, Inc. is the Energy Consultant to the Intergoverrunental Cooperation Agreement ("IGCA") and the Joint Purchasing Agreement (",IPA") which were developed for local governments, agencies, non-pro5ts and businesses to join uVether in the collective pt=hase of energy supplies and related energy maw services including electricity, and; WIIfEREAS, Client is a member of either the IGCA or IPA, has engaged BENCHMARK as their Utility Consultant, is interested m Pig ekaricity UPPIM aced services under these ngreements, and has also signed a Management Services Agreement with BENCE MARK in which BENCFIMAU provides energy management and supplies including competitively priced electricity generation, and, WHEREAS SUMC has developed certain proprietary methods for examining utility expenses for their customers and has entered into certain business arrangements with third parries, which allow SUMC to offer these customer favorable rtility arrangements. WI1EREA.S CLIENT desires to have SUMC examine its electric utility expenses and make Certain favorable utility ar rangenertts for the CLIENT. THEREFORE, CLIENT hereby engages SUMC to perform expense reduction analysis and make written savings in Electricity. (1) In consideration fear providing its proprietary methods to CLIENT, CLIENT hereby authorizes SUMC to represent CLIENT in obtaining energy sulsply offers, evaloatiang offs, and assisting in contract negotiations or odterwise advising on energy related matters (collectively the "Service'). CLIENT hereby agrees that during the term of this agreement, SUMC shall be the exchrsive FVVWW of the Services to CLIENT. All Ut titY service providers (`Providers") are hereby requested to forvrand all of -, communicardons and correspondence concerning CLIENT to SUMC. This agreement shall be effective for a period of sic nioaft after the date of this age , and SUMC shalt hm the option to retiew the agruma n£ drying the tam Of any service a, [ betwim CLIENT and a Provider. Client agrees not to use our recomntendatfcuts and Work Foduct to negoriate with Energy Providers. (2) SUMC will perform all services raqueed to andyze the above mdwgftd expense arras and submit written recommendation(s) that will enable CLIENT to realize savings is Those areas. Regardless of which Provider CLIENT chooses, the fee will be paid by the Provider to SUMC. SUl1+IC Witt not invoice the Client or BENCHMARK for its services. (3) SUMC will have access to the appropriate accounting records of CLIENT for the propose of initial analysis and mbsegment follow -trio, Subject to normal confidentiality req s of the CLIENT. SUMC will also have access to current suppliers. SUMC acbumledges elm confidentiality of an CLIENT infurniiition received during the analysis and agrees not to disclose such inSomuatiarn unless so authorized by CLIENT. (4) In performing the Services„ SUMC shall act as an independent contractor and have control of the method and the mama the Services that are perms. SUMC is aatltorized to contract with others to assist in the performance of the Services. EXHIBIT Client: By: Printed Name: L u u 6 q ze ki 5 Title• ! b w BLS h`? v? 9 z Z/ Date: I ?, i LoL Tax YD• 23- 4 6,J 0 `z q6 Benchmark Energy Solutions, Inc. Printed Name: Orr, Title: an-,J-enr4 Date: ! R Seven Utility Management By: Printed Name Title; Date: 1500 COCHRAN ROAD, SUITE 1003. PITTSBURGH, PA 15243 T(412)'571-0850 F ;4112) 571-9121 (e) benchr arh33@verizon.net LETTER OF AUTHORIZATION FOR THE REQUEST OF HISTORICAL USAGE INFORMATION Date; Expiration Date: f Z131 /2 a I -2- 1 1 LIST LDC (List Local DistribuSon Company that applies to this request) PPL (Fax 484-634-3260) Please accept this letter as a formal request and authorization for the above referenced Local Distribution Company (LDU) to release energy usage data, including kWh, kVA or KK and interval data (if applicable) at the following location(s) to INFO@SEVENUTILI7Y.COM. This information request shall be limited to no more than the most recent 12-month period of service. Please see schedule attached for additional service addresses and account numbers. Service Address ESI Number (found on bill) /bv ? s ? r ? 1' l? 0012, OCOS cl?i-3/IiCSLIAVC b!Z00 C0 qoo i-'z r4? "n Please forward usage and load information in electronic (Microsoft Excel) format to: E-mail: info a&evenugjity.com AUTHORIZATION I afftrm that I have the authority to make and sign this with this uest. r?4; (Signature) LLy Fcgz_e I?aS (game, printed) (e w ,tis %1, p 1? c.? via ? e ir' (Title) z4krq S G- U pe.r a Ile Y) 0 " (Email Address) (Federal Tax ID Number or Social Security Number) request on behalf of my company for all ESID's that are associated 10 Vj SA t) (Legal Company -Include any DBA) 1 S11rq ke (Billing Street Addr ss) l?/j?c?t?tluz.Su- ? ?/? 7,95 (city, State, zip Code) (1 i ?) 7 ( b - 0.1. (TWephone Number) (-7 1`1)'7` 6 - 733 (Fax Nu ber) info@sevenutility.com - www.seventdility.com 12300 Dundee Court. Suite 215. Cypress, TX 77429. Local (281) 213-9910 Toll free (866) 85-SEVEN Fax (281) 213-9801 t Contract Number: 2010-0026088 Liberty Power Holdings LLC Pennsylvania Fixed Rate Plan Electricity Service Agreement Contract Type: trua IN cypress ueeK KDaa., aurae buu - Fort Lauoeraale, FL 33309 • libb•PUWER-99 (1-866-769-3799) Submit Contract Fax: 1-800-306-6264 www.libertvoowercoro.wm Flow Start Month: c lone 2010 I Tax Exempt I D Reduced Tax Rate % Customer Business Upper Allen Township Type of Business: ? Non-Profit Name: ? Corporation Contact Name: Kim Welch Q Limited Partnership Trite: ? General Partnership 9-Digit Tax ID 23-6050246 ? Limited Liability Corporation Sole Proprietor [J Billing Address, K Welch/Benchmark, 107 May Avenue, Apartment 3A City : Bridgeville State: PA Zip: 15107 Phone: 412-221-0335 Fax: 412-221-0755 Email : Channel Partner SU?yC i Sales Rep Estimated Ann. 000 1,900, Name : Name: Usage(kWh): This Agreement applies all utility account(s) listed below. (Complete Attachment "A" for additional accounts) utility Amount Number, Service Class: Faced Rate/kWh lnkialTemi Setvice Address Address: See At#ched List PPL (PENNSYLVANIA See Attached List 0.0833 7 POWER AND LIGHT) Fixed Rate j City: j kWh Months State: Zip: Please read the following items: 1. The business named above ("Customer) will pay Liberty Power Holdings LLC ("Liberty Power") a fixed rate ($/kWh) as stated above for all electric energy used by the listed Account(s) for the Term indicated above, beginning on the meter read date occurring during the Flow Start Month indicated above. The Liberty Power fixed rate does not include Utility distribution and delivery charges, applicable federal, state, and local taxes and charges. 2. Customer acknowledges that the Utility will continue to deliver electricity purchased from Liberty Power, as required by the Pennsylvania Public Utility Commission ("PUC') 3. Customer has the right to rescind this Agreement without penalty within 3 business days of receipt of the Terms and Conditions. After 3 days, if Customer terminates this Agreement prior to the expiration of the Term indicated above, Customer will be liable for an Early Termination fee as provided in the Termination of Service section of the Customer Terms and Conditions. 4. Customer acknowledges that Liberty Power may choose not to accept this Electricity Service Agreement or may require a deposit under one or more of the following conditions: a. Information Customer or Customer's representative has provided is incomplete or inaccurate. b. The stated energy charge was not authorized by Liberty Power or has significantly increased based on market conditions. c. There is a prior Agreement between the parties for the stated term and location. d. Enrollment of Customer's Account(s) is denied or significantly delayed by the Utility for any reason. e. A review of Customer's credit profile indicates that Customer does not meet Liberty Power's credit requirements. SMPA-CFRP-ABC-0110 Page EXHIBIT 1. E .. 1901 W. Cypress Creek Re., Suite 600 Ft. Lauderdale, FL 33309 1-866-POWER-99 (830 am - 530 pm ET) j l CUSTOMER TERMS AND CONDITIONS Customer Care Fax: 1-877-772-2354 Pennsylvania - Fixed Rate Plan Email: info#Dlibertypowercorp.com .l ibercvoowercoro.com Important: This is part of your Electricity Service Agreement. Please keep for your recordswww . Background: Liberty Power Holdings ("Liberty Power") is a leading independent supplier of retail electricity that supplies competitively priced power to thousands of businesses and government entities in the United States. Our corporate offices are located at 1901 W. Cypress Creek Rd, Suite 600, Fort Lauderdale, FL 33309. Plan Description: The Plan Description included in your Liberty Power Welcome Kit contains important information concerning the Customer Account and is part of this Agreement. The Customer ("Customer") is the company identified and addressed in the Plan Description. As such the Plan Description should be kept, along with these Customer Terms and Conditions, for the Customer's records. The Plan Description includes account number(s), rate information, contract commencement date, contact telephone numbers, etc. Billing: Liberty Power will bill the Customer monthly for electric generation service based upon electricity consumption as reported to Liberty Power by the Local Distribution Utility (Utility). Customer will be billed under one of the fallowing billing options: (1) a line item on a consolidated Utility bill; or (2) as a direct bill from Liberty Power for only the energy supply, with the delivery charges being separately invoiced by the Utility. Customer will be sent a monthly invoice for electric service, due and payable by check or other acceptable method of payment by the stated due date on the invoice. If invoicing under a consolidated utility billing method, Liberty Power's energy charge does not include applicable federal, state, and local taxes and charges nor does it include current Utility charges associated with the delivery of Customer's electricity. Price: Customer agrees to pay a fixed rate as agreed to and as stated in the Agreement. For purposes of this Agreement, Price means the energy price, including congestion, capacity, Network Transmission, ancillary services, losses, Auction Revenue Rights (ARR), Renewable Portfolio Standards (RPS) compliance costs, generation and any other miscellaneous charges (including, but not limited to ISO/RTO, or PUC fees). The Price does not include taxes, regulated charges from the utility including, but not limited to, utility delivery and distribution charges, customer account fees or other utility transition charges. Payment Instructions for Direct Billed Accounts: Bills are due and payable by the stated due date on the invoice and will be subject to a finance charge for any late payment fat the lesser of 1.5% per month or the maximum rate permitted by applicable law) and collection fees, including reasonable attorneys' fees and court costs. A fee of $30 per transaction will be assessed due to insufficient funds for any method of payment. All direct payments by Customer under this Agreement will be remitted to Liberty Power, 14154 Collections Center Drive, Chicago, IL 60693. Term and Automatic Renewal: The initial term of this Agreement is as listed in your Plan Description. Customer will receive reminders of upcoming Agreement expiration 90 days, 60 days and 30 days prior to the expiration of the term of this Agreement. Upon completion of the initial term, If Customer does not cancel service or renew on a new Liberty Power plan, service will automatically continue with Liberty Power on a with a variable rate for a one year term. Customer will continue on Liberty Power's Default Variable Plan for subsequent one year periods unless cancelled by Customer or Liberty Power, with forty-five (45) days written notice, or as otherwise applicable in this Agreement. Terms and Conditions applicable to the Liberty Power Default Variable Plan will be made available to Customer via mail or Web site (www.libertypowercorp.com) approximately 90 days prior to the end of the initial term. Cancellation must be in writing and mailed to Liberty Power Customer Care Team at 1901 W. Cypress Creek Rd., Suite 600, Ft. Lauderdale, FL 33309. Credit/Security Deposit: Customer authorizes any person or credit-reporting agency to compile and furnish to Liberty Power any information about the Customer it may have or obtain in response to an inquiry from Liberty Power- Liberty Power may require a security deposit from Customer to initiate service, depending on Customer's credit or payment history. Such deposit requirement shall be communicated to Customer in writing and provide the timeframe in which the deposit must be received. Deposits held for more than 30 days will accrue interest from the date of receipt at the Wail Street Journal Prime Rate. Right of Rescission: Under the Pennsylvania Public Utilities Commission (PUC) rules, Customer has three (3) business days following receipt of these Terms and Conditions to rescind, without charge, penalty or liability, the choice of Liberty Power as an electric energy supplier and this Agreement. To cancel, Customer may call Liberty Power 954-771-1463 or 866-769-3799 toll-free during normal business operational hours. Customer may also fax to Liberty Power a detailed written request to cancel services during mentioned cancellation period at 877-772-2354. Dispute Resolution: Liberty Power's Customer Care is available at 866-769-3799 to help with any questions or concerns regarding Customer accounts. Liberty Power's agents are committed to resourcefully finding resolution; however, if the dispute cannot be settled within 120 days of receipt of written notification, either party may present the dispute to a venue of competent jurisdiction for Contract Number: 2010-0026088 SMPA-CFRP-ABC-0110 Page 2 of 4 review such as small claims court, mediation, arbitration, etc. Customer may also contact the Pennsylvania Public Utility Commission ("PUC") Utility Choice Hotline at 1-888-537-7431. Customer may also write to the PUC at PO Box 3265, Harrisburg, PA 17105-3265. Meter Equipment: Liberty Power does not take ownership of the Customer's current metering equipment. While the Customer has an effective electric energy sales Agreement with Liberty Power, Liberty Power has the right to install new metering equipment, at Liberty Power's expense. Historical Usage and Credit Data: Customer consents to Liberty Powers request of historical usage and credit data from Utility and other agencies as appropriate in order to assist in estimating Customer usage requirements and creditworthiness for supply purposes. The usage data will be used for appropriate analysis, scheduling and purchase of electricity for the Customer. Termination of Service: Liberty Power may terminate service to the Customer for a Customer Event of Default. The Customer will then receive electric energy service from Utility or will be given the opportunity to choose a different electric energy provider, according to procedures and options provided by the rules of the local Program. Customer will be responsible to pay for energy consumed before service was terminated. Customer may terminate this Agreement at any time during the initial term by giving Liberty Power at least forty-five (45) days written notice. Termination of this Agreement prior to the expiration of the initial term by the Customer will result in an Early Termination Fee (ETF). Early Termination Fee is equal to the Remaining Contract Quantity times the greater of (i) Contract Price less Market Price at the time of Termination, or (ii) $0.007/kWh. Remaining Contract Quantity means the total estimated usage for the period remaining in the Term of this Agreement at the time of termination, based on the historical consumption for the Account(s). Market Price means the fixed rate at which Liberty Power would provide service for the remaining term for comparable Account(s) and usage as of the date this Agreement is terminated. The Early Termination Fee shall be waived if Customer provides satisfactory documentation to Liberty Power demonstrating that the business has been closed, moved or sold. Disconnection of Service: Only the local Utility has the ability to disconnect your service- Failure to make full payment of the charges due hereunder will be grounds for disconnection in accordance with Pennsylvania rules on the termination of service to non- residential customers. 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 supply when delivered under terms of this Agreement if such failure is not cured within ten (10) Business Days after giving written notice as defined below; or (iii) the significant downgrading of Customers credit rating since the Effective Date of this Agreement (b) in the case of Liberty Power, the failure to fulfill its obligations as set forth in this Agreement with regard to (i) contract price, (ii) contract term, (iii) contract volume and (iv) timely invoicing for power deliveries, in each case, if such failure is not cured within ten (10) Business Days after giving Notice as defined below; or (c) if either Party (i) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy or similar law for the protection of creditors, or have such petition filed against it and such petition is not withdrawn or dismissed for twenty (20) Business Days after such filing or (ii) be unable to pay its debts as they fall due and such inability is not cured within ten (10) Business Days after giving written notice. Remedies for Customer Event of Defautt: In the event of a Customer Event of Default Liberty Power has the right to terminate this Agreement in accordance with the Termination of Service provision. In lieu of termination, Liberty Power may, at its discretion. (i) require an additional deposit from Customer; (ii) request advance payment of an amount up to the average historical consumption for the last 3 month period. Collection of Past Due Charges: Liberty Power will pass through to Customer all charges related to the collection of past due invoices, including, but not limited to, collection agency fees, legal and court fees, and account termination fees. Liberty Power reserves the right to apply any deposit to balances owed at the time Customer's account is placed in a collections status. Electric Emergencies and Power Quality: 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. Material Change: Liberty Power will provide the Customer with 45 calendar days advance written notice of any material change in the Terms of Service, either in its bill or in a separate mailing. The changes will become effective on the date stated in the notice unless Agreement is cancelled by the Customer. Customer may cancel Agreement no later than 10 calendar days before the effective date of the material change. Contract Number, 2010-0026058 SMPA-CFRP-ABC-0110 Page 3 of 4 Notices: All notices and similar correspondence will be in writing and delivered as specified in this Agreement to both Customer and Liberty Power, as applicable, by regular mail, courier, electronic mail, or facsimile- Notice will be effective upon receipt by the person to whom it is addressed. Contract Assignment: Neither Party shall assign this Agreement without the prior written consent of the other party, provided, however, that Liberty Power may assign the accounts, revenues and proceeds arising from the Agreement to credit providers and Liberty Power may grant a lien upon its rights under this Agreement to credit providers (or to an agent thereof). Liberty Power may also assign its rights and obligations under this Agreement to certain backup service providers ("Service Providers') under contracts to perform services such as invoicing and power scheduling. Any such credit provider (or agent thereof) who has been assigned this Agreement may directly enforce Liberty Power's rights under this Agreement and may assign Liberty Power's rights under this Agreement upon foreclosure or other exercise of remedies by such credit providers (or agent thereof). Customer shall have the right to assign this Agreement to an entity controlled by, controlling, or under common control with, Customer. Additionally, notice of default shall not be effective until notice is given and agreed to in writing by Customer and Liberty Power. Publicity: Liberty Power shall be entitled to disclose and publicize the identity of Customer as a client of Liberty Pourer and display Customer's logo on its Web site. Force Majeure: Force Majeure means an event or circumstance not reasonably within the control of or due to the negligence of Liberty Power, including without limitation acts of God, accidents, strikes, labor disputes, required maintenance work, inability to access the Utility system, nonperformance of the Utility, cuts to service lines, or changes in laws, rules, regulations, practices or procedures of any governmental authority or any other cause beyond the reasonable control of Liberty Power. Liberty Power will endeavor in a commercially reasonable manner to provide service, but cannot guarantee a continuous supply of electrical energy. Force Majeure events may result in interruptions in service to Customer. Please be aware that Liberty Power does not produce, transmit or distribute electricity provided to Customer under this Agreement and therefore will not be liable for any damages whatsoever for any such interruptions in service. Indemnity: Each party to this Agreement shall indemnify, defend and hold harmless the other from and against any claims arising from or out of any event, circumstance, act or incident first occurring or existing during the period when control and title to electric energy is vested in such party. Representations and Warranties The electricity supplied by Liberty Power under this Agreement will be purchased from a variety of sources. liberty Power makes no representations or warranties other than those expressly set forth in this Agreement, Liberty Power expressly disclaims all other warranties, express or implied, including warranties of merchantability, conformity to models or samples, and fitness for a particular purpose. Limitations of Liability: Liability for damages not excused by reason of force majeure or otherwise shall be limited to direct actual damages. Neither party will be liable to the other for consequential, incidental, punitive, exemplary or indirect damages, including lost profits or penalties of any nature which are hereby waived, whether or not there was actual knowledge of such possible damages, or if such damages could have been reasonably foreseen- These limitations apply without regard to the cause or responsibility of any liability or damage. 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. Execution: Acceptance of the Customer's Agreement by Liberty Power will be signified by Liberty Power's mailing of a Welcome Kit which includes a Plan Description, a copy of the Terms and Conditions and confirmation of the rate and term of the Agreement. Signature by Liberty Power is not required to execute this Agreement. Entire Agreement: The Voice Log or signed Agreement, including these Terms and Conditions and the Liberty Power Plan Description constitute the entire Agreement ("Agreement") for the purchase of electric energy supply between the Customer and Liberty Power, relating to matters set forth in them. They take the place of any and all prior Agreements and understandings, oral or written about Liberty Power supplying electric energy to the Customer. The Customer should keep this Agreement for his/her records. By signing below, Customer acknowledges that he/she is the legal owner or authorized decision maker for the purchase of electric energy for the Account(s) listed on this Agreement Customer has received a copy of this Agreement, and has read and understands it. Customer agrees to be bound by the terms of this Agreement. Customer Authorized Signature:{--4 7 s Printed Name: L C 44 k j, Z?-?i c S Date: Contract plumber: 2010-0025088 SMPA-CERP-ABC-0110 Page 4 of 4 i a E O V 6 ? Sn U M in 3.tia. J 6n M ? SS- Ql N ? U w?n? 'O m O _! t0 K w . oo E U- .= u- 1u 0 c? ci. CL IV G N 2 2 V F- a 0 0 4 0 4 0 0 9 O O O O A 0 0 O _ p O 0 0 0 0 F _ _ _ O O _ _ _ in t0 t.7 M t0 t2 N 42 v7 N V, N N N N il'7 to N En tf) to to 1lJ N l0 to r T T T a amaaaaaaaaaaaaa aaaacLo-L (L dgma,mmma,mmmmmmmmmmmmmm mmmm ` "> "> > '> '> > "> "> > "> '> > .> .> '> '> "> '> > °J ' ? m w m m w M MM rn rnrnM rnMrnMM rnrnrnosrnrnMa, rn rn v,rnrn rn M m rn "v_uav_aaaarsv:ava =vuvu T) ,v_,v_vvama - - - o6ea lDJ:a65 8 1?i6taal18mmiom IDfdIDRia i D8i Q M M M M M < 4 Q 4 ? M a 4 4 d Q 4 d a 4 M M Q M fi '? C 7 4^ J C 7 [ 'J t 'l C ') C ') t 7 t 7 P 7 t ') t t '} i +7 ') c G G c L C L r' C G C C C c c C C C" C G C C C L C m m w w m m m m m m m m m m m m m w m m m w m m m a, E E E E E E E E E E E E E E E E E E E E E E E E E E rrrr crrrrrrv1c=T: erVcrrrrrrrr w w w w w w w w w w w w w w w w w w w w w w w w w w CL CL CL CL aCL afl.aCL CL fl.CL aCL CL a CL CL aCL CL CL aaCL ddQQddQQ44dQ44QdQQdQQQQQQQ 7 3 3 _= 0(D 3 3>> 6 3 4 7 0 3 d? j 6_ c C: c C != G G c c c c c c C C c a c c c c C c c c a a> m m w 0 m m w w 0 m w 0 m m w m m 0 d w m w m m w m aaQad>¢¢¢a'd'a'¢'a'Q¢'4'¢d>¢¢>d4'¢'<<<< Ts TTATA? a> T A A A A A T T T a m w m w w m m w m w w w 0 w m w m w m w w Q w w w w w w w w w w w w w w 'k 4 0 Z660(5006660660 000600000000 - - - - - -- - .-T T T Y- e .-r T r T. . .- '-- .- . .-. T T Tr r - ^ -? Ut A/ ? e-f w w w w +^I M M w w r-1 w M w H .-, w rY w - W w w w --i .y ? S17 ? NNNNNNNNNNtl, to NNNNNN;fl Ntn ill tnN NN ? w u. N tU to cA A r+ I a w.j a L c m W CL n m E w tD G E m w z E ; O w O o u ? J I o. o 7 ip m In m w E d O `s as ? y i3 a R L!S d C2 d .Q C O V d a E r v ? w "A v v, pp y _ \j U !Y r cp V d' Ol t "' Q, C [at 0-21 S N ??i p o Jul a -,a??U 'a N N y ii u y g '2> G 1 oY< m GtO o mm o 0. ?a."?-yM p wF- ?r,C?cK'ai ,a 6t V, N F-- tc6 i+ Vl u Crn .-? t$ 'Q5 p.r Z tom/, 'yN -?-:2:C++0 E25 V in MM t kn 'D VVmll w c f.Z'O y C- R C R E1 i V1 oE -O" cwiaE rE ?W caivLs= 0 L9 op ?i 3:A `n,o a a a;oc saWa, 4, °' mL to c N I-?} Oa, I i 09 N 3 N.ci? !f a co Q'J5N?4i-N ~L t%, ? ? ?, '-y c LJ, d O ohhOMOp?vp- WhOtogptOo ptipnptsm V- o 0 0 o O MMO?O Q O O O O° O Q O 0 0 0 9 0 0 0 0 0 O o 0 0 o C pO O E Z O O CCC pLp? p rr. nti?h r, Nh R.Oi 11 naM+oO,i t?.NI 01 I M MOTr NN ocrosiloooo Nl.?6 dlrntSo+o6 cve.o ? m N MNl•tn in -,+-t mM C. Ot l'r hf'V N1n u7 o O0?00NOO MNhOm .-tN,O..,niipp O+hOON cv htnOw w M,2 NtDOa,O0.-+MtoiD mONV- crnMgmMv 3 -? NNMM?r MLn kn to w w i0 to mhW rnrn W.-, U d COMMISSIONERS of UPPER ALLEN TOWNSHIP CUMBERLAND COUNTY BOARD OF COMMISSIONERS: JAMES G. COCHRAN, President KENNETH M. MARTIN. Vice Presidem VIRGINIA M. ANDERSON. Assistant Secretary PAUL M. RIGNEY. Assistant Secretary RICHARD A. CASTRANIO. JR-, Assistant Secretary 100 GETTYSBURG PIKE MECHANICSBURG. PA 17055-5698 TOWNSHIP MANAGER: LOUIS FAZEKAS TELEPHONE: ("117) 766-0756 FAX: (717) 796-9833 E-MAIL: lfazekasG upperallenttvp.org WEB PAGE: www.upperallennvp.org October 14, 2010 Mr. William Welch Benchmark Energy Solutions, Inc. 1500 Cochran Road, Suite 1003 Pittsburgh, PA 15243 Re: Benchmark Energy Solutions Dear Mr. William Welch: Please let this letter serve as your notice that Upper Allen Township has identified four areas of breach of the Agreement for Utility Information and Management Services by Benchmark Energy Solutions, Inc. The Township is requesting that all issues be rectified in a manner that is acceptable to Township Management within thirty days of the date of this letter. Failure to properly and completely remove Benchmark Energy Solutions from breach of agreement within thirty days will result in agreement termination. The following are the identified breaches in Benchmark Energy Solutions, Inc.'s Agreement for Utility Information and Management Services: III. Utility Bill Processing and Information to assure accurate bills and prompt delivery and payment of the utility bills. Within the last month, the Township began receiving copies of some of its bills as requested. Upon review of the invoices it was discovered that account totals reported by Benchmark do not match those that are invoiced by PPL. I a. Scope of Services, BSI will provide: Consolidated Utility Billing: Collate, tabulate, summarize and report monthly to A/P the consumption, costs and the bill to pay each utility. Benchmark Energy Solutions has consistently misreported or mispaid accounts owned by the Township. Currently a majority of the Township's electrical accounts are being reported as having past due balances. Additionally, several accounts are now required to have security deposits. These types of problems did not exist for the Township prior to bringing Benchmark on. 2b. BSI's additional responsibilities: interface with the utilities and provide timely resolution of problems. At a meeting scheduled by BS1 on July 29, EXHIBIT e `F Page 2 Letter to Benchmark Energy Solutions, Inc. October 14, 2010 2010, BSI represented that it was working to resolve what it considered communication issues with PPL involving account payments. The Township and its staff have been patient, yet after three months, invoices still display past due balances and warnings for service termination are still being delivered. 2c. BSI's additional responsibilities: Analyze data, compare monthly, seasonal and annual usage and costs. To the best of my knowledge this is not being done and if it is being done for the Township's invoices it is not being reported. Additionally, while not specifically mentioned within the agreement, Benchmark Energy Solutions promised to conduct an audit of the past three years of the Township's electric invoices in the first few months of 2010. To my knowledge this has not be completed or reported on. The overall experience with your company has not been positive. If you feel that your company will be unable to rectify the issues listed in this letter in thirty days, please contact me in writing so that I may cancel the agreement. Also please note that until these issues are fixed, the Township will hold all payments to Benchmark Energy Solutions, Inc. Sincerely, Upper Allen Township Scott Fraser Assistant Township Manager Cc: File 7D1?1L i? 11aB crgv soluao-usy LC. 10/22/10 Scott.Fraser, Assistant Township Manager Upper Allen Township 100 Gettysburg Pike Mechanicsburg, PA 17055 By Email Dear Scott, This is to acknowledge receipt of your letter dated 10/14/10 regarding several areas of breach of the Management Services Agreement. As may have been evident in June at the meeting we called, and evident yet today, we do not take our responsibilities lightly nor do we shy away from trying to resolve problems. We intend to resolve the issues noted in your letter to the best of our abilities and hopefully to your satisfaction. If we fall short it won't be from lack of effort on our part but perhaps the lack of cooperation of all those parties involved in servicing the Township, including PPL Utilities and Liberty Power. As you noted in your email 10/14/10 a CD with scanned PPL bills was sent in June. Sorry if it was blank. It left our office full of data. I hope the most recent scan had the information you were looking for. As you have noted the totals for the PPL bills do not always match Benchmark's bills. There may be several reasons for this which I have noted in communications with all clients: improper addition of sales taxes, the wrong generation price, late fees, etc. In each case where this has happened a memo was sent to PPL or Liberty Power asking for corrections. Most of these issues have been corrected and credits issued You should also know that we didn't aim to match PPL, or their errors, we attempted to issue correct bills. 2. Past due balances and Security Deposits. We are working through the past due balances and Security Deposits. If you will remember when you joined the IGCA the first order of business with PPL was your authorization to them to send the billings to Benchmark and cooperate with us in setting up the accounts for a smooth transition. Had PPL followed your letter all Township accounts but LP4's and streetlights would be on Summary bills. Summar bills do not have late fees or Security Deposits. As noted above we didn't always match PPL's totals if they were incorrect. These problems may not have existed prior to Benchmark but the lack of PPL's cooperation is noticeable. Also note that Benchmark has paid the late fees. 3. Benchmark's interface with the utilities. Benchmark has communicated with both PPL and Liberty Power on behalf of the Township and all clients. The Township's recent bills have been accurate and the carry forward balances are being tracked for payment. A statement showing account carry forwards will be sent shortly with the payments still due by the Township for prior months' billings. 1504 COCHRAN ROAD, SUITE 1043, PITTSBURGH, PA 15243 T(412)571-0850 F(4f2)571-9121 (e) benchmark33@N eriznn.net EXHIBIT II BENCH ARK Hep. 0160-ns, Inc, 4.. Additional responsibilities- The Township has been a client for several months and the annual review of information is months away. One thing we have done is updated the presentation and content of the monthly bills so that clients can keep track of important monthly totals. One such number is the monthly generation savings which was 10.7% in September. 5. The Audit. We will perform an audit as soon as PPL releases to you the account histories you authorized them to email to you. Can you again send them the authorization letter with a Second Request printed boldly at the top. You can forward the histories upon receipt. Benchmark is keeping its promises. As you can see PPL marches to a different drummer and hasn't been any more cooperative with us than they have been with Upper Allen Township or many of their other customers. There is one bright spot and that is the generation savings of 10.7°/x. As for my responses, #1 The bills are being scanned and the bill differences being resolved with credits or rebills from LP or PPL on the bills. #2 has been corrected, Benchmark has paid the late fees and we continue to pursue the addition of all accounts to Summary billing. The Second Request letter to PPL stamped in bold should help. Please copy us. #3 The report showing carry forward balances will clarify the amounts owed to PPL for past bills, and will be sent for payment this month. #4 will be reported when the annual summary is completed, and #5 will be taken care of after you email us the account histories. So this is the update. As to the Fees I have this to say: the generation savings are as promised and the billing is being fixed where Benchmark has the ability to fix without PPL. At this point you might want to send a letter to PPL and ask if they could speed up. They are falling behind. Within several weeks we will be going out for another round of generation pricing from suppliers and at that time, with PPL's cooperation, all problems will be fixed. If you are going to be with us for the next round of generation pricing all outstanding balances due to Benchmark will have to be paid. We hope you are with us. Sincerely rsr William J. Welch President cc: J Rubb K Welch J Lofrnk S Dafner K Stool t 1500 COCHRAN ROAD, SUITE 1003, PITTSBURGH, PA 15243 T (412) 571-0850 F (412) 571-9121 (e) benchmark33@verIzon net COMMISSIONERS of UPPER ALLEN TOWNSHIP CUMBERLAND COUNTY 100 GET17YSBURG PIKE BOARD OF COMNUSSIONERS: MECHANICSBURG. PA 17055-5698 JAMES G. COCHRAN, President KENNETH M. MARTIN. Vice President VIRGINIA M. ANDERSON. Assistant Secretary PAUL M. RIGNEY. Assistant Secretary RICHARD A. CASTRANIO, JR., Assistant Secretary November 2, 2010 Mr. William Welch Benchmark Energy Solutions, Inc. 1500 Cochran Road, Suite 1003 Pittsburgh, PA 15243 Re: Benchmark Energy Solutions Dear Mr. William Welch: TOWNSHIP MANAGER: LOUIS FAZEKAS TELEPHONE: (717) 766.0756 FAX: (717) 796-9833 E-MAIL: 1faxckas@upperatletawp.wg WEB PAGE: www.uppetallentwpog Please let this letter serve as your notice that effect November 15, 2010, Upper Allen Township is terminating its agreement with Benchmark Energy Solutions for failure to comply with the provisions of the Agreement for Utility Information and Management Services. I wish you and your company luck in your future endeavors. Sincerely, Upper Allen Township Scott Fraser Assistant Township Manager Cc: File EXHIBIT 1 .- h. t. w FPt'PpoUIIGIl?r zf. May 23, 2011 The Board of Commissioners C/o Mr. Scott Fraser, Assistant Township Manager Upper Allen Township 100 Gettysburg Pike Mechanicsburg, PA 17055 Via Email and Certified mail Re: Intergovernmental Cooperation Agreement/Agreement for Utility Information and Management Services (the "Agreements') and Balances due Dear Board and Mr. Fraser: We received Mr. Fraser's letter of October 14, 2010 notifying us of four (4) areas of breaches in the Management Services Agreement (the MSA") and giving Benchmark Energy Solutions, Inc. ("BESI") thirty days (30) to rectify them in a manner acceptable to the Township. Also noted was that the Township would hold up all payments to BESI. BESI responded to this first letter on October 22, 2010 noting our progress on three breaches and billing issues (the 0, the auditing, had been completed early in the process without any errors by the utility). Mr. Fraser's first letter was quickly followed up on November 2, 2010 with a letter of termination effective November 15, 2010 for failure to comply with the Agreement. Although most issues were resolved, and clearly all would have been resolved within the thirty days, Benchmark was terminated within seventeen days (17). This correspondence is to advise you that your termination of the MSA did not terminate your contract with Liberty Power LLC dated May 27, 2010. Further, this is to advise that because you ceased forwarding, or having the electric bills forwarded to us for the purposes of auditing, consolidated billing, and billing for the monthly fees, we have calculated the fees owed to Benchmark for the remaining full term of the Electric Contract with Liberty Power. While performing these calculations we also noted and added the monthly fees being billed to the Township, but not yet paid. I believe it is essential for the Board, and. you, to be aware of the facts so that any decision by them to pay or face litigation is an informed one. These are the important facts that I want to share with you, and then, if necessary, with the appropriate legal authorities. 1. On December 16, 2009 UAT signed the Intergovernmental Cooperation Agreement (the "IGCA"), the Management Services Agreement (the "MSA"), and an Agreement to negotiate an Electric Generation Contract. As it states in the IGCA Benchmark is the exclusive Energy Consultant to the IGCA and its Agencies. 2. The .MSA states in Section 4 Term 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 unless either party notifies the other in writing of its intention to terminate at least (60) days in advance of an expiration date." In Section 6 there are provisions for terminating the 1500 COCHRAN ROAD, SUITE 1003, PITTSBURGH, PA 15243 T (412) 571-0850 F (412) 571-9121 (e) benchmark33CaZverizon.net EXHIBIT Agreements for alleged breaches but UAT's time to cure was confusing: first thirty (30) days and then seventeen (17) days, no notice of to us that we cured the breaches, and apparently no interest in seeing the breaches cured. 3. The IGCA states in Section 8.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 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. 4. BESI negotiated a Generation Contract for UAT with Liberty Power Holdings LLC ("LP") to reduce the cost of their generation supplies. This was done at VAT's request and UAT signed a Contract with LP wherein LP agreed to deliver 1,971,000 kWh of :firm generation. to VAT's electric account(s). The average PPL Tariff price of Generation to UAT was to be $0.10480. BESI negotiated a lower price of $0.08852 with LP producing a savings of $32,087.88 or 15.5%. 5. For its Price and Contract Negotiation results, and the savings produced, BESI was to be paid $11,378.65 in Fees. This was according to the Fee Schedule set forth clearly and agreed to in the MSA. UAT paid only $1,383.63 of the Fees leaving a balance of $9,995.02 in fees that are still due to BESI. The Billing Fees were to be $1,307.16 for the seven months. The information attached shows the monthly generation usage, costs, savings, Fees charged and balance due. 6 The billing by LP and PPL, although not to standard from my perspective, was in need of further processing by BESI, but did not in any way hinder the flow of electric generation supplies to UAT, and completion of the Electric Generation Contract. The savings were delivered. This correspondence is to advise you of the Agreements and the Contract you signed, as well as the savings delivered and the Fees still due to Benchmark. UAT (1) received the benefit of our work with $32,087.88 in savings on its electric bills, and (2) is liable for the remaining Fees of $9,995.02 due under the Agreement for the Electric Contract. I think this correspondence is clearly the more effective and economical method of communicating our interest in collecting what is due to us. Litigation is time consuming and very expensive, and I would hope this matter could be resolved without litigation. If we do not receive payment in full within fifteen (15) days of the date of this letter, however, we will set into motion the appropriate legal action necessary to collect the balance due, as well as the litigation fees and costs we incur. V truly yours, William We ch President Attachment 1500 COCHRAN ROAD, SUITE 1003, PITTSBURGH, PA 15243 T (412) 571-0850 F (412) 571-8121 (e) benchmaric33eyerizon.net ° b4 m m m Q o ? ? o v d S O u a c ? 3 > o c R t6 d O G `?" ° N m d G C ?' e?'j d p O m £ d v Z O 00 ? r ? .O ,? d ? ? .a ,,, p c r r, a y o o s w ca ?? d G N 3 C N +?.' m N N R O p C T 0T ? =O C v N i t -o ?; ? d o 3 Y ;so . o s i o a w r.- S g °°n ? ? .° ° r ?plg o. $c° ° dig g s, Tj cu ? a`s m m p CI w = ° = N yc m 9N 1G6 ? ? p p fY N d aj ° U O G r at GG ? v v h F U G :i+ R ? '!3 ?+ ? ? 4 .-? d O ? ? _ ? 3 O Q? ? h IF- "'' .p6 m d? O d ;: p nom- 9 ? d ?"c Or -p N G u Q ?' C. N nj OS to ?O y *' aL? ,R N v +?- N O Uf Of y ? ? 'O N ? N tOO N y ?^ d Y T Y Jv? eb 7 'O o4 u?. _ Np G CJ a+ J C N d °i o G o Li- w L °no m o 5 3 3-0 -0 0 i Q R .LS N A U.. d tS G G C tti c p A 3 m =? a = a. 007 +??+ c c ,? r p t7 .o m v? m _ v y L. AT f4 i'.a O V +? LL G d a ? °3 y s, ns ra m aci w s ? ,,,, T .c R ; '• ?r u t..ws v 4 .? m ?u oy =3 w d„ °ppOp° ° r o O O ?' 7 Y i V N " O a p • p O '06 y G d EY ? w ? 4 ? ,py ,°y ;, 4 l+?.. Se - O p N t0 A O y. N N t N G .n tlt o .- m x o c a, m e > o, ° a L a Y N y v u C NL' .' = N _ Co a ° D U or O• C °y ad Q is G G GO m fN- U ti a?.. mEEm _c A '" .ate ? aGi ? w Y ? ? o G$ .ti ? ? < r. c m E y c c ?a G pct y p ;' A N + > U C" Y Ft„ p. M h d GoD o ° m S7 m d U G 2S tD rD `q ° ° a`r °J G Y a ? G Q< m 6 M1?? ?° d p, 6 ? d Q b! to a ?, °.n N N S o N ?N M n.. 14 C y' ?Ir m Q w 0 VERIFICATION I hereby verify that the facts set forth in the foregoing COMPLAINT are true and correct to the best of my knowledge, infonnation, and belief This Verification is made subject to the penalties of 18 Pa.C.S. § 4904 relating to unswom falsification to authorities. Date: ;? ?'? \-t- ?sr? W a CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Complaint has been served by mailing a copy, United Stated mail, first class, postage prepaid, this 6th day of March 2012, to the following: John Stephen Feinour, Esq. Nauman Smith 200 North 3rd Street P.O. Box 840 Harrisburg, PA 17108 Rachel D. Felton, Esquire NAUMAN, SMITH, SHISSLER & HALL, LLP By: J. Stephen Feinour, Esquire Attorney I.D. No. 24580 Joshua D. Bonn, Esquire Attorney I.D. No. 93967 200 North Third Street, 18`h Floor 33 AN- 11: i ~t' POEfZ?„P 0 COUNTY r1tISyL 'ANl Solicitor for Upper llen Township P. O. Box 840 Harrisburg, PA 17108-0840 T: (717) 236-3010/F: (717) 234-1925 BENCHMARK ENERGY COURT OF COMMON PLEAS SOLUTIONS, INC. CUMBERLAND COUNTY, PENNSYLVANIA Appellee NO. 2012-996-Civil VS. UPPER ALLEN TOWNSHIP, Appellant PRELIMINARY OBJECTIONS NOW comes Appellant, Upper Allen Township, by and through its attorneys, Nauman, Smith, Shissler & Hall, LLP, and files these Preliminary Objections pursuant to Pa.R.Civ.P. 1028 to Plaintiffs' Complaint and avers in support thereof: On January 18, 2012, Magisterial District Judge Mark Martin entered a civil judgment in the amount of four thousand two hundred twenty-eight dollars and seventy-two cents ($4,248.72) in the above captioned matter in favor of Benchmark Energy Solutions, Inc. and against Upper Allen Township. 2. On February 16, 2012, Upper Allen Township filed a Notice of Appeal with this Court. On March 6, 2012, Benchmark Energy Solutions, Inc. filed a Complaint asserting claims of Breach of Contract, Unjust Enrichment, and Quantum Meruit 2 against Upper Allen Township arising out the alleged breach of an Agreement for Utility Information and Management Services ("MSA") which was executed on December 16, 2009. A true and correct copy of the MSA is attached to the Complaint as Exhibit "C". 4. Benchmark Energy Solutions, Inc. seeks judgment in excess of $8,191.44 plus continuing and additional interest, costs, and attorneys' fees against Upper Allen Township. See Ad Danum clauses to Counts I, II, and III of the Complaint. Preliminary Objection in the Nature of a Motion to Strike Pursuant to Pa.R.C.P. 1028(a)(2) 5. Preliminary objections may be filed by any party to any pleading for failure of a pleading to conform to law or rule of court. Pa.R.C.P. 1028(a)(2). 6. The Complaint of Benchmark Energy Solutions, Inc. fails to conform to law or rule of court in that the Benchmark Energy Solutions, Inc. seeks attorneys's fees without justification. 7. The Pennsylvania Supreme Court has consistently followed the general, American rule that there can be no recovery of attorneys' fees from an adverse party, absent an express statutory authorization, a clear agreement by the parties or some other established exception. Merlino v. Delaware County, 556 Pa. 422, 425, 728 A.2d 949, 951 (1999). 8. The MSA contains no provision permitting Benchmark Energy Solutions, Inc. to recover attorneys' fees in this matter. 9. There is no statutory authorization or other established exception permitting Benchmark Energy Solutions, Inc. to recover attorneys' fees in this matter. Wherefore, Appellant, Upper Allen Township requests that the Court STRIKE WITH PREJUDICE any and all claims against Upper Allen Township for attorneys' fees as set forth in Appellee's Complaint pursuant to Pa.R.Civ.P. 1028(a)(2). NAUMAN, SMITH, SHISSLER & HALL, LLP By: if J. Ste hen Feinour, Esquire Supreme Court ID#24580 Joshua D. Bonn, Esquire Supreme Court ID# 93967 200 North Third Street, 18' Floor P. O. Box 840 Harrisburg, PA 17108-0840 Counsel for Upper Allen Township, Appellant Date: March 22, 2012 4 CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Jeannette Chelgren, an employee of the firm of Nauman, Smith, Shissler & Hall, LLP, hereby certify that I this day served the foregoing "Preliminary Objections of Upper Allen Township" and proposed "Order" by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed to the following: Steven Petrikis, Esquire Rachel Felton, Esquire Metz, Lewis, Brodman, Must, O'Keefe, LLC 11 Stanwix Street, 18`h Floor Pittsburgh, PA 15222 Jeannette Chelgren, Secretary J. Stephen Feinour, Esquire Date: March 22, 2012 5 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BENCHMARK ENERGY SOLUTIONS, INC., Plaintiff, vs. UPPER ALLEN TOWNSHIP, Defendant. ARBITRATION DIVISION CASE NO.: 12-996 Civil BENCHMARK ENERGY SOLUTIONS, INC. Counsel of Record for this Party: Steve 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 AMENDED COMPLAINTC IVIL ACTION C F3 --t Filed on behalf of Plaintiff: 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 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BENCHMARK ENERGY SOLUTIONS, INC., Plaintiff, vs. UPPER ALLEN TOWNSHIP, Defendant. ARBITRATION CASE NO. 12-996 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 2 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 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BENCHMARK ENERGY SOLUTIONS, INC., Plaintiff, vs. UPPER ALLEN TOWNSHIP, Defendant. ARBITRATION CASE NO. 12-996 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, Upper Allen Township, is a municipality with an office located at 100 Gettysburg Pike, Mechanicsburg, Pennsylvania 17055. JURISDICTION AND VENUE 3. This court has original jurisdiction of this matter pursuant to 42 Pa.C.S. § 931. 3 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 ("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. 4 11. On December 16, 2009, Upper Allen 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 December 16, 2009, Upper Allen 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 Upper Allen Township in the collective purchase of energy supplies and services, seek competitively priced electricity generation, and process utility bills. 14. In turn, Upper Allen 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 attached to the MSA ("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 December 16, 2009, BESI and Upper Allen Township entered into an agreement with Seven-Utility Management Consultants, Ltd. ("SUMO") (the "SUMC Agreement") whereby SUMC was authorized to obtain offers from energy suppliers to provide electric generation services to Upper Allen Township. A true and correct copy of the SUMC Agreement is attached hereto as Exhibit D. 5 18. On or about May 27, 2010, Upper Allen Township entered into an Electricity Service 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 Upper Allen Township. 20. Under the Liberty Power Contract, Upper Allen 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 Upper Allen Township with electric generation. 21. In December of 2009, BESI agreed to amend the Fee Schedule under the MSA and lowered the Sponsorship and Management Fee and Performance Fee that Upper Allen Township was to pay to BESI for its services. The fee for Monthly Billing for each Utility Account remained the same. 22. Per the amended Fee Schedule, BESI was to be paid a Sponsorship and Management Fee of 1.8% and a Performance Fee of 21.6%. 23. The Liberty Power Contract was for a term of 7 months and began on the first utility transfer date occurring after June 1, 2010. 24. Upon information and belief, Upper Allen Township received electric generation services under the Liberty Power Contract between August of 2010 and February of 2011. 25. On or about October 14, 2010, Upper Allen Township sent a letter to BESI wherein Upper Allen Township purported to identify 4 areas where BESI was allegedly in 6 breach of the MSA. A true and correct copy of the October 14, 2010, Letter is attached hereto as Exhibit F. 26. In the October 14, 2010, Letter, Upper Allen Township requested that BESI rectify the alleged breaches within 30 days and Upper Allen Township stated that it would terminate the MSA if BESI did not rectify the alleged breaches within 30 days. 27. On October 22, 2010, 8 days later, BESI sent Upper Allen Township a letter that identified the steps that BESI had taken and was taking to satisfy Upper Allen Township's demands. A true and correct copy of the October 22, 2010, BESI Letter is attached hereto as Exhibit G. 28. Despite BESI's efforts and even though the 30 day period set forth in Upper Allen Township's October 14, 2010, letter had not passed, on November 2, 2010, Upper Allen Township sent BESI a letter wherein Upper Allen Township terminated the MSA effective November 15, 2010. A true and correct copy of the November 2, 2010, Termination Letter is attached hereto as Exhibit H. 29. From August of 2010 through September of 2010, BESI processed Upper Allen 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 Upper Allen Township all of the electric distribution and generation bills for Upper Allen Township. 30. After September of 2010, BESI was unable to process Upper Allen Township's electric utility bills because Upper Allen Township stopped PPL from forwarding its electric bills to BESI and prevented BESI's performance of certain obligations under the MSA. 7 31. Upper Allen Township stopped PPL from forwarding its electric generation bills to BESI even though it continued to receive services under the Liberty Power Contract. 32. Despite receiving services under the Liberty Power Contract and MSA, Upper Allen Township did not pay BESI the full amount of the Fees due to BESI between August of 2010 and February of 2011. 33. On May 23, 2011, BESI sent a letter to Upper Allen Township demanding the payment of 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 I. 34. Upper Allen Township did not respond to the Demand Letter. COUNT I: BREACH OF CONTRACT 35. BESI incorporates Paragraphs 1 through 34 as if fully set forth herein. 36. BESI and Upper Allen Township were parties to the MSA. 37. Among other things, the MSA required Upper Allen Township to pay BESI certain Fees. 38. BESI fully and completely performed its duties under the MSA. 39. Upper Allen Township breached the MSA by failing to pay BESI certain Fees due under the MSA. 40. As a direct and proximate result of Upper Allen Township's breach of the MSA, BESI has suffered damages. WHEREFORE, Benchmark Energy Solutions, Inc., respectfully requests that judgment in excess of $8,191.44 plus continuing and additional interest and costs be entered against Defendant Upper Allen Township. 8 COUNT II UNJUST ENRICHMENT 41. BESI incorporates Paragraphs 1 through 40 as if fully set forth herein. 42. A benefit was conferred on Upper Allen Township by BESI, when BESI secured the Liberty Power Contract for Upper Allen Township and BESI processed Upper Allen Township's electric bills, including the electric generation bills under the Liberty Power Contract. 43. Upper Allen Township appreciated the benefit conferred on it by BESI as Upper Allen Township received monetary savings and services from BESI's work. 44. Under the circumstances, it would be inequitable for Upper Allen 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 $8,191.44 plus continuing and additional interest and costs be entered against Defendant Upper Allen Township. rr)T TATT TTT QUANTUM MERUIT 45. BESI incorporates Paragraphs 1 through 44 as if fully set forth herein 46. BESI performed services for Upper Allen Township by securing discounted electric generation prices for Upper Allen Township through the Liberty Power Contract and by processing Upper Allen Township's electric bills, including the electric generation bills under the Liberty Power Contract. 47. Upper Allen Township accepted the services of BESI. 48. BESI did not render its services gratuitously. 9 49. BESI is entitled to the value of the services it performed for Upper Allen Township. WHEREFORE, Benchmark Energy Solutions, Inc., respectfully requests that judgment in excess of 58,191.44 plus continuing and additional interest and costs be entered against Defendant Upper Allen Township. Date: March 30, 2012 Respectfully submitted, METZ LEWIS BRODMAN MUST O'KEEFE LLC B. 24,W D(uti- 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 10 AMENDED AND RESTATED INTERGOVERNMENTAL 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, la 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. k •. ' 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 supplics 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 governments so cooperating shall enter into joint agreements as may be deemed appropriate for those purposes; and EXHIBIT 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 participate 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, 1972, together with municipal authorities, redevelopment authorities, housing authorities, parking authorities and industrial development authorities. I Designation 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 %VwW of each Agency, or to act as an aggregator, market aggregator, broker or marketer as defined in 66 Pa. C.S. §§ 2843. 4. Services. Prodaets and Bouipment The services, products and equipment which are the subject of this Agreement include, but are not limited to, the following. a. Electricity, natural gas, steam and liquid fads, 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 Enerav 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 pacing; f. Assist the CEO':s financial advisors with the structure of any Financing, as set forth in §8 hereof; for the purchase of Energy Supplies and .Services and the timing of any fimancial benefit for the Agencies; and g. Provide such other bidding and pur+dhasing 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. Eneray Proposal Upon receipt of Bids or negotiated prices for Energy Supplies and Services, the Energy Consultant will submit an Energy Proposal and the relevant Energy Contract to each participating Agency for its review. he Energy Proposal will contain (i) the 3 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. responsitdc 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 ravish to participate in such bid, solicitation or negotiation; b. The Energy Consultant shall have no authority ofi, behalf of any of the Agencies; G. 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; d. No Agency shall 'be liable for any cost, fee or expense which is not specifically set forth in the Energy Proposals or Energy Contracts as disclosed by the Energy Consultant and/or the CEO; and e. No Agency may negotiate, bid for or contract with any supplier or vendor for Energy Supplies and Services for a period of 190 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. Finaacial Arrangements a. The City anticipates that municipal bonds or leases (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, accepted and executed an Energy Contract under this. Agreement, shall make timely payments to the CEO for the Energy Supplies and Services, and nary 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 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 wUI be 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 life of the Energy Supplies and :Services Contract. 9. Confidential Information The Agencies aelmowledge 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'J., 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. 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 contained herein shall be .extremely detrimental w the economic interests of all the Agencies. Therefore, at all times hereto, the Agencies and Energy Consultant agree that any Confidential Information may only be used consistent with the terms and conditions contained herein, including program imgleuientation and may only be disclosed to third parties with the exprress.reservation and protection afforded confidential and proprietary information. Within ten (10) days of the termination of this Agreement, such Confidential hbrmation, and any copies thereof, must be returned to the proper Agency. 1 d. Severability In case any one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable is any i espect, 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: 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 competence in the field of municipal law and/or municipal fiuanee, that such amendatory or supplemental instrument 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 and conditions of the Energy Contract and the terms and conditions of the Financing thereof 12. o 'ce All demands, notices, approvals, consents, requests and other communications hereunder shall be in writing and shall be deemed to have been given when. delivered in person or by regigured or cartified mail, postage prepaid, or addressed by recognized overnight delivery.serviee: a. To the City, at its address set forth above. b. To each .Agency at its address set forfa below or on an attached Joinder Agreement, 1. For the Rarrisburg Housing Authority: Dorsey Howard„ Executive Director Harrisburg Housing Authority 35.1 Chestnut Street Harrisburg, PA 17101 2. For the Harrisburg Redevelopment Authority: Wilmer Faust, Executive Director 6 Harrisburg Redevelopment Authority Rev. Dr. Martin L. King City Covemment Center Suite 40V, S %'-- 10 North Second Street Harrisburg, PA 17101 For the Harrisburg Parking Authority: Ronald.Massott,.Executive Director Harrisburg Parking.Aurtharity McCormick Public Safety Building 123 Walnut Street Harisburg,.PA 17101 13. Assienment Agencies may assign their obligations and benefits to 'another participating Agency. All assignments may be made only with the written consent 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. WHEREAS S, the City of Harrisburg and the parties herew execute and deliver this Amended and Restated Intergovernmental Cooperation Agreement on the date first written above- CITY 4 B G By Stq&en R. Reed, Mayan By: " k64 LOW James McCark, C oiler EXHIBIT A MCA JOINDER AGREE ENT Participant: Participant: u P(rJe Z ?rl s h t' ?- Address: y D 5 b W, V-?j Q t Intending to be legally bound hertby;joins in this INTERGOVERNMEI\rl'AL COOPrRA` ION AGRI EI%4F.NT dated as of 3' day of b Ub Q-v , PRR`t 3 by and between the City of l larrisbure 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 day of D e G2 vn bC?r , 20c J ATTEST: By: o a "cx z- J 5 Title: bwA-,: AL ?-jcat, y1914e4"- EXHIBIT BENC A ? rime-rgy, 5o1udons, Inc. Agreement for Utility Information and Management Services BACKGROUND: +*llie1 rw (Client) will be participating in the Power and Energy Purchase.Program (the "PEP Program") and has executed a Joinder Agreement for the Intergovernmental Cooperation Agreement (the 9GCN') or the Joint Purchasing Agreement (the 'JPX). The talent is currently served ufiilties/services such as natural gas, electricity and liquid fuels, and needs utility bill processing, ongoing information and an analysis of the consumption and costs ofthese utllitieslservices. BENCHMARKk Energy Solutions, Inc. (BEST) is the Energy Consultant to the PEP Program and advises the Agencies and Participants (local governments, their agencies, non-profits and businessas) in the collective purchase of Energy Supplies and Services and also agrees to provide the following additional services to the Client for their utility/services accounts. Acssunls ura yen c / > (2) Eleciricify:Accounts c!> 15 L' a r 'I f 0 o (N) (3}.i,iquid-?ue7a?Aeeognts < / > BENCHMARK will provide the Client with: I Competitively priced natural gas and liquid fuels commodity and delivery services that saves the Client money on their utility bills. It Competitively priced el otridty generation (when available) that also saves the Client money on their utility bills. III Utility BIII Processing and Information to assure accurate bills and prompt delivery and payment of the.utility bills. IV 'Management information thatanables the Client to make more effective business decisions. EXHIBIT BHNCHX? Flncagf 5016 !aon8, lac. 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 utilifies/vendors to work with BSI in the preparation of their bills. BSI will provide: a. Consolidated Utility Billing; Collate, tabulate, summarize and report monthly to AfP the consumption, costs and the bill to pay each utility. b. Utility Management Reports: Annual Reports of Utility Management. Information This Report Includes, in a summary format, monthly usage, costs and savings, an analysis of historical information, recommendations for utility system improvements, and other agreed to information. 2 BENCHMARK's additional responsibilities: a. Maintain an accurate utility date base (profile) for each site Including: property address, account #, service statistics (consumption and costs). b. Interface wtia the utilities and provide timely resolution of problems. c. Audit sample the bills for accuracy vs, the Tariffs, and report differences. d. Analyze data, compare.monthly, seasonal and annuatusage and cost& e. Identify and report opportunities to reduce (conserve) resources. 3 Clients' Responsibilities: a. Use its best efforts to provide BSI with timely monthly utility bills, b. Report, one timely basis, changes In utility accounts. BENCHMARK Em'r'r solu&"' Inc. Continued page 3 Agreement for Utility Information and Management Services 4 Term of the Agreement, This Agreement Is effective as of the date below and shall remain in affect forthree 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 at least (50) days in advance of an expiration date. 5 Confidentiality: Each Party acknowledges that all material and information which has or will come Into the possession of the other party In connection with this Agreement or the performance hereof, consists of confidential and propristary data, disclosure of which to or use by third parties will be damaging. Both parties therefore agree to hold such material confidential. Further, this Agreement may be Terminated under these conditions: Client reserves the right to terminate this Agreement for cause In the event of (1) a breach of this Agreement by:BESI, (2) the failure of BEST, after written notice of the specifics from the Client, to perform its duties in a timely and professional manner. BESI reserves the right to terminate this Agreement for cause in the event of (1) a breach of this Agreement by the Client, (2) the failure of the Client afterwritten notice of the specifics from BSI, to perform its duties in a timely and professional manner. In the event of a termination of this Agreement prior to a scheduled termination date, BESI shall be entitled to a pro rata payment for all previously unpaid service through the date of such termination. 7 Cost of Services: In consideration of the work, to be performed and the work products to be delivered, Client shall pay to. BESI the Fees per the Fee Schedule currently In effect (see Schsclule A orltsUgiiate attactts): a. Sponsorship and Management Rate class dependent 2.5% to 6k% (invoiced and due monthly) b. Monthly Billing for ea. Tariff Account Vol. /Class Dependent 52.20 48.80/mo. (invoiced and due monthly) c Monthly Billing for Commodity, Delivery NG per month $1250 or Generation, Transmission Accounts EL per month $8.331512.50 (invoiced and due monthly) plus Performance Fee per Fee Schedule d Species set-up Fee $0.00 !Acct The cost to expand the Program Software, and input the Data Base for Consolidated Billing. e Annual Budget (for each Designated Utility) $ By Agreement (Invoiced within 30 days of completion) Acceptance By execution and delivery of this Agreement, and intending to be legally hound hereby, the undersigned agrees to this Proposal as of be-r- ) Ca .20 t of, BEJV"CJDkfAPX Hariv ?6166ans, Lc. i f V- WB7&AR%w r ( ?• " Willi J. Welch F ?t 1 6' LV *'1. G t r ?1 President Schedule A Fee Schedule Intergovernmental Cooperation Agreement and Joint Purchasing Agreement Utility Bill Auditing and Processing Commercial Accounts - Natural gas/Electric 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 @ < $1,000/mo. Schedule above Electric GS1 @ > $1,000/mo. $8,33 Electric GS3 /LP all Nat Gas, Liq Fuels $12.50 Sponsorship, Management and Contract Negotiations (Max Fees) % mo contract Rate Classes Nat Gas (NT/CT) and all Electric 2.5% Rate 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 DR 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 = EL Rate Classes NT, CT, LFD, IS#2 = NG Rate Classes Effective 10/01/07 Edited 10/01/09 Edited 11/23/09 BENCH AYL z?? . Energ solutio r? Inc. This agmernmit is entered into on the -L-L day of b gem (J e-( 20-0?j, by and among BENCHMARK Energy Sohttions,. Inc., (BESP), 1500 Cochran Road, Ste 1003, Pittsburgh, PA 15243, and Seven - Utility Management Consultants, Ltrl., ("SUMO") 12300 Dundee Ct; Suite 215, Cypress, TX 77429, {"SUMC" ), and l.(Doer AI(eA It.-wnsh;i), ieo C-e?gvsLur-t R-ke Nt?chutnccs6ur?7 ("CLIENT"). WHEREAS, BENCHMARK EMU Solutions, Inc. is the Energy Consn[taat to the h teWvermntxttaI Cooperation Agneemtent ("IGCA) and the Joint Purchasing Agreement ("3PA") which were developed for local governments, agencies, non-profits and businesses to join together in the collective purchase of energy supplies and related energy managartr?nt services inclu ft electricity1 and, WHEREAS, Client's a member of either the IGCA or JPA, lass engaged BENCHMARK as their Utility Comultaut, is interested in purchasing electricity supplies and services under these agreements, and has also signed a Management.SWVM Agreement with 13ENCEBAaRK in vNch BENCHMARK Provides atergy management and supplies including competitively priced electricity geacradon, and, WHEREAS SUMC has developed certain proprietary methods for examining utility expenses for their customers and has entered into commit business arrangements with flurd parties, which allow SUMC to offer these customers favorable utility arrangements. WHEREAS CLIENT desires to have SUMC examine its electric utility expenses and make certain Savorable utility arrangements for the CLIENT. TTiEREFOM CLIENT hereby engages SUMC to perfoiat expewo reduction analysis and make written sohms recornmendatosrs in Electra (t) In considwation for pr Bits proprietary maahods tD CLIENT, CLIENT hereby authorizes SUMC tv r*uent CLIENT In obletamg e=V supply offles, evaluating offs rx, and assisting is contract sego ushoas or otherwise advnmg oat energy related matters (,offunveiy file -aav oes"). CLHW hereby agrees that during. the term of dils agraertmnt, SUMC shalt be the exclusive provider of the services ID CUENT: All udiity. service providers Movidaas") are hereby requested to fiwward all offers, comaimicatmps and.aotrespoadanee Omwermg CLIENT to SUMC. This agreement shall be effective for it period of six mcnift after the date of fib agmo , and SOMC almll leave the option to renew the agreo$nd? during the t mm of any sa vicc agteonm bemem CLIENT shd a Pix?,AW. Client aow$ not to use our recomm ens and work prnductto aegOd to VM.Eao V Pinviiders. (2) SUMO will perf m all seWoxs required tD artatyze fire above indicated expense acres nd m brut written recommendation(s) that will enable CLIENT to realize savhW in those aran Regardless of which Provider CLIENT chooses, the Ere will be paid by the Provider to SUMC. SUMC will not invoice the Client or BENCHMARK for its servrrers. (3) SUMO vdU have access to the OpF*p dwft acxoummg records of CLMNT for the purpose of initial analysis and obseq reset follow -akp, subject to normal con8 y reget tc of the CLIENT. SUMO will.also. have arras to wrtent suppliers, SUMC artowdadg the coa5deadal1W of all CLIENT irtf * i l;ta received dtubg the auatysls aid agrees not to disclose such inf?n unkss.so authorized by CLIENT (4) In performing the SeMc es, :SUMC shall act.as an indepardent contractor and;have control of the method and the =0 =11u: Serv$cns that am performed. SUMC is autliorhod-to contract with others to assist in the paftmanceof the Servlees. EXHIBIT :t .t) t % client: By: Printed Name: LQ 6 q -zek i s Tine: 6 7-1AJ f.sh,p H"L ri g ---r Date. 1 7, % ? oy Tax ED: , 6©J Benchmark Energy Solutions, inc. BF Printed Name: w j ?? 10 r-6 i??? Title: Eff! ? La? Date: i Seven Utility Management By: Printed Name rift Date: 3 500 COCHRAN ROAD, SUITE 1003, PITTSBURGH, PA 15243 T (41.2) 571-0850 F (412) 571-9121 (e) benchmark33Cu verizon.net I.s.ETTER HE AUTHORIZATION FOR THE REQUEST OF HISTORICAL USAGE INFORMATION Date: 1 1 r ?r1 `f Expiration Date: / Z./3 /2 t / L_ LIST LDC (List Local Distribution Company that applies to this request) PPL (Fax 484-634-3260) Please accept this letter as a formal request and authorization for the above referenced Local Distribution Company (LDU) to release energy usage data, including kWh, kVA or KW, and interval data (if applicable) at the following location(s) to INFpCbSEVENUTILITY.COM. This information request shall be limited to no more than the most recent 12-month period of service. Please see schedule attached for additional service addresses and account numbers. Service Address ESI Number ( % nd on bile )?e C s r , ke 0012,OCOS cGianiCS614 ©o6 I;- ru fL ?n Please forward usaga and load Wormagon:m electronic (Mlcrosott Excel) format to: E-mail: info @Sevenutfl1'hX0M AUTHORIZATION I affirm that I have the auftrity to with this nest. (Signature) LLiq ?zgs (Name, printed) 15-W .?s ), , P f I Cl VL4 q -Q. 41-- (Title) de Y), (Email Address) ?2 - ? 05 0 vZ Lf (Federal Tax ID :Number or Sociei Security Number) make and sign this request on behalf of my company for all ESID's that are associated Up pe-4- Atlef1__ d uric), (Legal Company -Include any DSA) ---? 6:f Pi -we- (Billing Street -Addrdas) Me_a.t/ %:.g b w- P/q J 7' .' (City, State, Zip Code) . 7 (? -o7 Crelephone Number) (-1`1? 716 7933 (Fax Nurhbee) info@sevenutHity.com www.sevenutiiiiy.com 12300 .Dundee Count. Suite 215. Cypress; TX -77429. Local (281.) 213-9910 Toll free (866) 85-SEVEN Fax (281) 213-9801 i l" , i Li Contract Number: 2010-0026088 Liberty Power Holdings LLC Pennsylvania Fixed Rate Plan Electricity Service Agreement Contract Type: __J -..d_r n bee n- .1- Ail ew - - 1 not l.7UZ Vifaypresb ;;ft= Koau., JVi[C aVV - r%atwoudedale,. f'L .IDa ouulrwvvrn`77-t1?OVD-/07?17;j Submit Contract Fax: 1-600-306-6264. www libertvoowercoru;com Flow Start Month: June 2010 Tax Exempt ? Reduced Tax Rate % Type of Business: customer Business Upper Alien Township ? Non-Profit Name: ? Corporation Contact Name: Kim Welch Li it d P tn hi m e ar ers p Title: ? General Partnership ")Sit Tax ID Q: 23,6050246 ? Limited Liability Corporation Sole Proprietor Billing Address: K Welch/Benchmark,107 May Avenue, Apartment 3A city : Bridgeville State: PA Zip: 15107 Phone : 412-221-0335 Fax: 412-221-0755 Email Channel Partner SUMC Sales Rep Estimated Ann. 1,900,000 Name: Name: Usa e(kWh This Agreement applies all utilityatsount(s) listed below. (Complete Attachment"A"foradditional accounts) utility Amount Number. Senfte gals:. Fixed Retr kWh IeitialTerm : . Service Address Address: See Attached List PPL (PENNSYLVANIA See Attached List $0.0833 7 POWER AND LIGHT) Fixed Rate / MY. kWh Months state: r Please read the following items: 1. The business named above ("Customer") will pay Liberty Power Holdings LLC{"Liberty Power") 'a fixed rate ($/kWh) as stated above for all electric energy used by the listed Account(s) for the Term indicated above, beginning on the meter read date occurring during the Flow Start Month indicated above. The.Llberty Power fixed rate does not Include Utility distribution and delivery charges, applicable federal, state, and local taxes and charges. 2. Customer acknowledges that the Utility will continue to deliver electricity purchased from Liberty Power, as required by the Pennsylvania Public Utility Commission ("PUC") 1 Customer has the right to rescind this Agreement without penalty within 3 business days of receipt of the Terms and Conditions. After 3 days, If Customer terminates this Agreement prior to the expiration of the Term indicated above, Customer will be 'liable for an Early Termination Fee as provided in the Termination of Service section of the Customer Terms and Conditions. 4. Customer acknowledges that '.Liberty Power may choose not to accept this Electricity Service Agreement or may require a deposit under one or more of the following .conditions: a. Information Customer or Customers representative has provided is incomplete or inaccurate. b. The stated energy charge was not authorized by liberty Power or has significantly increased based on market conditions. c. There Is a prior Agreement between the parties forthe stated term and location. d. Enrollment of Customer's Account(s) is denied or significantly delayed by the Utility for any reason. e. A review of Customer's credit profile indicates that Customer does not meet Liberty Power's credit requirements. SMPA-CFRP-ABC-0110 Page EXHIBIT p 14 1901 W. Cypress Creek Rd., Suite 600 em 777 Ft. Lauderdale, FL 33309 1-86&POWER-99 (8:30 am-S30pm.ET1 #{ " CUSTOMER TERMS AND CONDITIONS Customer Care Fax: 1-977-772-2354 Email: info(ftbertYnowercoro.com ? Pennsylvania - Fixed Rate Plan ' www.ltbertvoowerco com important: This IS part of your Electricity Service Agreement. Please keep for your records. Background: Liberty Power Holdings ("Liberty Power") is a leading independent supplier of retail electricity that supplies competitively priced power to thousands of businesses and government entities in the United States. Our corporate offices are located at 1901 W. Cypress Creek Rd, Suite 600, Fort Lauderdale, FL 33309. Plan Description: The Plan Description Included in your Liberty Power Welcome Kit contains important information concerning the Customer Account and is part of this Agreement. The Customer ("Customer") Is the company identified and addressed in the Plan Description. As such the Plan Description should be kept, along with these Customer Terms and Conditions, for the Customer's records. The Plan Description includes account number(s), rate information, contract commencement date, contact telephone numbers, etc. Billing: Liberty Power will bill the Customer monthly for electric generation service based upon electricity consumption as reported to Liberty Powerby the Local Distribution Utility (Utility)- Customer will be billed underone of the following billing options: (1) a line item on a consolidated Utility bill; or (2) as a direct bill from Liberty Power for only the energy supply, with the delivery charges being separately invoiced by the Utility. Customer will be sent a monthly invoice for electric service, :due and payable by check or other acceptable method of payment by the stated due date on the invoice. if invoicing under a consolidated utility billing method, Liberty Power's energy charge does notinclude applicable federal, state, and local taxes and charges nor does it include current Utility charges associated with the delivery of Customer's electricity. Price: Customer agrees to pay a fixed rate as agreed to and as stated in the Agreement. For purposes of this Agreement, Prig means the energy price, including congestion, capacity, Network Transmission, ancillary services, losses, Auction Revenue Rights .(ARR), Renewable Portfolio Standards (RPS) compliance costs, generation and any other miscellaneous charges (including, but not- limited to ISO/RTO, or PVC fees). The Price does not include taxes, regulated charges from the utility including, but not limited to, utility delivery and distribution charges, customer account fees or other utility transition charges. Payment Instructions for Direct Billed Accounts: Bills are due and payable by the stated due date on the invoice and will be subject to a finance charge for any late payment (at the lesser of 1.S% per month or the maximum rate permitted by applicable law) and collection fees, including reasonable attorneys' fees and court costs. A fee of $30 per transaction will be assessed due to insufficient funds for any method of payment All direct payments by Customer under this Agreement will be remitted to Liberty Power, 14134 Collections Center Drive, Chicago, iL.60693. Term and Automatic Renewal: The initial tern of this Agreement is as listed in your Plan Description. Customer will receive reminders of upcoming Agreement expiration 90 days, 60 days and 30 days prior to the expiration of the term of this Agreement. Upon completion of the initial term, If Customer does not cancel service or renew on a new Liberty Power plan, service will automatically continue with Liberty Power on a with a variable rate for a oneyearterm. Customer will continue on Liberty Power's Default Variable Plan for subsequent one year periods unless cancelled by customer or Liberty .Power., with forty-five (45) days written notice, or as otherwise applicable in this Agreement. Terms and Conditions applicable to the Liberty Power Default Variable Plan will be made available to Customer via mail or Web site (www_llbert-wowertom.coml approximately 90 days prior to the end of the initial term. Cancellation must be in writing and mailed to LibertyPower Customer Care Team at 1901 W. Cypress Creek Rd-, Suite 600, ft. Lauderdale, FL33309. Credit/Security Deposit: Customer authorizes any person or credit-reporting agency to compile and furnish to Liberty Power any information about the Customer it may have or obtain in response to an Inquiry from Liberty Power. Liberty Power may require a security deposit from Customer to Initiate service, depending on Customer's credit or payment history. Such deposit requirement shall be communicated to Customer In writing and provide the timeframe in which the deposit must ;be received. Deposits held for more than 30 days will accrue Interest from the date of receipt at the Wall Street Journal Prime Rate. Right of Rescission: Under the Pennsylvania Public Utilities Commission (PUC) rules, Customer has three (3) business days following receipt of these Terms and Conditions to rescind, without charge, penalty or liability, the choice of Liberty Power as an electric energy supplier and this Agreement. To cancel, Customer may call :Liberty Power 954-771-1463 or.866-769-3799 toil-free during normal business operational hours. Customer may also fax to Liberty Power a detailed written request to cancel services during mentioned cancellation period at-877-772-2354. Dispute Resolution: Liberty Power's Customer Care is available at 866-769-3799 to help with any questions or concerns regarding Customer accounts. Liberty Power's :agents are committed to resourcefully finding resolution; however, if the dispute cannot be settled within 1,20 days of receipt of written notification, either party may present the dispute to a venue of competent jurisdiction for Contract Number: 2010-0026088. SMPA-CF11P-ABC-0110 Page 2 of4 review such as small claims court, mediation, -arbitration, etc, Customer may also contact the Pennsylvania Public Utility Commission (" PUC) Utility Choice Hotline at 1-888-537-7431. Customer may also write to the PUC at PQ Box 3265, Harrisburg, PA 17105-3255. Meter Equipment: Liberty Power does not take ownership of the Customer's current metering equipment. While the Customer has an effective electric energy sales Agreement With Liberty Power, Liberty Power has the right to install new metering equipment, at Liberty Power's expense. Historical Usage and Credit Data: Customer consents to Liberty Power's request of historical usage and credit data from Utility and other agencies as appropriate in order to assist in estimating Customer usage requirements and creditworthiness for supply purposes. The usage data will be used for appropriate analysis, scheduling and purchase of electricity forthe Customer. Termination of Service: Liberty Power may terminate service to the Customer for a Customer Event of Default. The Customerwill then receive electric energy service from Utility or will be given the opportunity to choose a different electric energy provider, according to procedures and options provided by the rules of the local Program. Customer will be responsible to pay for energy consumed before service was terminated. Customer may terminate this Agreement at any time during the initial term by giving Liberty Power at least forty-five (45) days written notice. Termination of this Agreement prior to the expiration of the initial term by the Customer will result In an Early Termination Fee (ETF). Early Termination fee is equal to the Remaining Contract Quantity times the greater of (1) Contract Price less Market Price at the time of Termination, or (ii) $0.007/kWh. Remaining Contract Quantity means the total estimated usage for the period remaining in theTerm of this Agreement at the time of termination, based on the historical consumption for the Account(s). Market Price means the fixed rate at which Liberty Power would provide service for the remaining term for comparable Account(s) and usage as of the date this.Agreement is terminated. The Early Termination fee shall be waived if Customer provides satisfactory documentation to Liberty Power demonstrating that the business has been closed, moved or sold. Disconnection of Service: Only the local 'Utility has the ability to disconnect your service. Failure to make full payment of the charges due hereunder will be grounds for disconnection in accordance with Pennsylvania rules on the termination of service to non- residential customers. 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 supply when delivered under terms of this Agreement if such failure is not cured within ten (10) Business Days after giving written notice as defined below; or (ill) the significant downgrading of Customer's credit rating since the Effective Date of this Agreement (b) in the case of Liberty Power, the failure to fulfill its obligations as set forth in this Agreement with regard to (1) contract price, (if) contract term, (iii) contract volume and (iv) timely Invoicing for power deliveries, in each case, if such failure is not cured within ten (10) Business Days after giving Notice as defined below; or (c) if either Party (1) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy or similar law for the protection of creditors, or have such petition filed against it and such petition is not withdrawn or dismissed for twenty (20) Business Days after such filing or (if) be unable to pay its debts as they fail due and such Inability is not cured within ten (10) Business Days aftergiving written notice. Remedies for Customer Event of Default: in the event of a Customer Event of Default, Liberty Power has the right to terminate this Agreement in accordance With the Termination of Service provision. In lieu of termination, Liberty Power may, at its discretion. (ij require an additional deposit from Customer, (11) request advance payment of an amount up to the average historical consumption for the last 3.month period. collection of Past Due Charges: Liberty Power will ;pass through to Customer all charges related to the collection of past due invoices, including, but not limited to, collection :agency fees, legal and court fees, and account termination fees. 'Liberty Power reserves the right to apply any deposit to balances owed atthe time Customer's account is placed in a collections status. Electric Emergencies and Power Quality: 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 emergencynumber. Material Change: Liberty Power will provide the Customer with 45 calendar days advance written:notice of any material change in the Terms of Service, either in its bill or in a separate mailing. The changes will :become effective on the date stated in the notice unless Agreement is cancelled by the Customer. Customer may cancel Agreement no later than 10 calendar days before the effective date of the material change. Contract Number; 2010-0026088 5MPA-CFRP ABC-0110 Page 3 of 4 Notices: All notices and similar correspondence will be in writing and delivered as specified in this Agreement to both Customer and Liberty Power, as applicable, by regular mall, courier, electronic mail, or facsimile. Notice will be effective upon receipt by the person to whom it is addressed. Contract Assignment. Neither Party shall assign this Agreement without the prior written consent of the other party, provided, however, that Liberty Power may assign the accounts, revenues and proceeds arising from the Agreement to credit providers and Liberty Power may grant a lien upon its rights under this Agreement to credit providers for to an agent thereof). Liberty Power may also assign its rights and obligations under this Agreement to certain backup service providers ("Service Providers") under contracts to perform services such as invoicing and power scheduling. Any such credit provider (or agent thereof) who has been assigned this Agreement may directly enforce Liberty Powers rights under this Agreement and may assign Liberty Power's rights under this Agreement upon foreclosure or other exercise of remedies by such credit providers (or agent thereof). Customer shall have the right to assign this Agreement to an entity controlled by, controlling, or under common control with, Customer. Additionally, notice of default shall not be effective until notice is given and agreed to in writing by Customer and Liberty Power. Publicity: Liberty Power shall be entitled to disclose and publicize the identity of Customer as a client of Liberty Power and display Customers logo on its Web site. Force Majeure: Force Majeure means an event or circumstance not reasonably within the control of or due to the negligence of Liberty Power, including without limitation acts of God, accidents, strikes, labor disputes, required maintenance work, 'inability to access the Utility system, nonperformance of the Utility, cuts to service lines, or changes in laws, rules, regulations, practices or procedures of any governmental authority or any other cause beyond the reasonable control of Liberty Power. Liberty Power will endeavor in a commercially reasonable manner to provide service, but cannot guarantee a continuous supply of electrical energy. Force Majeure events may result in interruptions in service to Customer. Please be aware that Liberty Power does not produce, transmit or distribute electricity provided to Customer under this Agreement and therefore will not be liable for any damages whatsoever for any such interruptions in service. Indemnity: Each party to this Agreement shall indemnify, defend and hold harmless the other from and against any claims arising from or out of any event, circumstance, act or incident first occurring or existing during the period when control and title to electric energy is vested in such party. Representations and Warranties:The electricity supplied by Liberty Power under this Agreement will be purchased from a variety of sources. Liberty Power makes no representations or warranties other than those expressly set forth In this Agreement, Liberty Power expressly disclaims all other warranties, express or implied, including warranties of merchantability, conformity to models or samples, and fitness for a particular purpose. Limitations of Liability: Liability for damages not excused by reason of force majeure or otherwise shall be limited to direct actual damages. Neither party will be liable to the other for consequential., incidental, punitive, exemplary or indirect damages, Including lost profits or penalties of any nature which are hereby waived, whether or not there was actual knowledge of such possible damages, or if such damages could have been reasonably foreseen. These limitations apply without regard to the cause or responsibility of any liability or damage. 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. Execution:.Acceptance of the Customer's Agreement by Liberty Power will be signified by Liberty Power's mailing of a Welcome Kit which includes a Plan Description, a copy of the Terms and Conditions and confirmation of the rate and term of the Agreement. Signature by Liberty Power is not required to execute this. Agreement. Entire Agreement: The Voice Log or signed Agreement, including these Terms and Conditions and the Liberty Power Plan Description constitute the entire Agreement ("Agreement") for the purchase of electric energy supply between the Customer and Liberty Power, relating to matters set forth in them. They take the place of any and all prior Agreements and understandings, oral or written :about Liberty Powersupplying electric energyto the Customer. The Customer should keep this Agreement€or his/her records. By signing below, Customer acknowledges that he%she Is the legal owner or authorized decision maker for the purchase of electric energy for the Accountfs) listed on this Agreement, Customer has received a copy of this Agreement, and has read and understands It, Customer agrees to be bound by the terms of this Agreement. Customer Authorized Signature: Printed Name: L( Cl ?-tk z 5 'Date: Contract Number. 2010-00260ag SMPA-CMP-ABC012o Page 4 of 4 O O O O O fl p 0 0 0 0 0 0 0 O C 0 0 0 Q Q O O O lA 1D LSf ?n G b+O G G w h 0 0 p in 0 to G i in U) to l() r rrrr r r rr c-rrrs-r t'tr rr r rr r r g ,¢ m gs ai gi gi , gi gi m ai m ai ai m gi gi d ai ai ai gi m g ti ,g -r-? ?.r_.-rss=arm-ms=r? r_^- .-- N 'd 0 m w N w m N m a>s m m N m as >a N >m m d m w a mmrn mco mmcm CD mmrnmmmmIM rnCM 01Cm mmm v v a a_ a a v a a a a a v a v ;aa o ap a v g v a v O C •- t "` 'C 'C 'C 'C C 'C "C •C 'C C ?. 'G 'G O mmmmmIn- I m mmmM- mmminLommmmmmmm to aaaaaQaaaaa?QaaQaa4 P MMMC?Mt`'fM Mt7M MM('1 M MM M l'?3 U Ga La C C G to C C C W 91 C a a a a a a a c .Cm a d? ?+ a a? m a a 4rrr?E m a m ro m m ro as m a ro io as rom ro ro al m ro m as m ro m S1 C. CLaa C. a C. 2G d aaa a aC. .a ? ¢ adQaam M aQaaaQaa$aa?c? Q¢aaa co, o m ai m aim ti ai m d d ai ai ai ai m a; ai ad ai ai a ai ai m 0 6 Y ?M Z+ C C L C C C C C C a a 0 a a N a m m a m tl ?u L a?asmmcmm?mmaa > ? > > } > a > > > y t+} 3 > > > > > a > > d ¢ > > Q>Q > > 4 a Q > Q ?C ad am Z3 Q4Q¢000Q<K<L<C<SQQdQQ ?, ?a'?u'1'a?a?'aimaar ?'aci'a'nsisi>u'i1`omi?a?v'ro mans ?' U a m g oy g oocl;) 10 oc o aoooada oa ?-Jt?D ai ?a- e- r r r- IS - e-- r - r-- a- r rr r r r r te e- e?? AIL LLL W J .? ? 'V W 1 m d fl'V)U' [An?UN' (A1in 1N7L?7ty,'9 (n tN.7yU' (U,7Vn' NU' t91??17t?7U?' tN.?l7t?7C7CN7Cy7ty7 ? O R N 4W .w 0) -U :n c3 £ u v cei o _ y E u a? L? c z -_In Ln go eta T.{ ?'?.a:???7?+LLlll?.?y Vl ?Tt?w-oo :1 f, LE .-. y 'L) ?ZS !- y Y C m .Y ri a? N {?p?, 'C7 y W Vl ,i{?y3+ l V H v ?g F- q i MC c0?? R Sa d V In -V I- . 0% IA {9 LI1 N ?Ci GAG ! is. "7. Vf ?- Vl VS +?! tT' Qii G) m ~ J E z -fal - h 1? :O/n CO .-? h C7 +# .-? Jn N 'V- a. M d O Q> tGi tt) M h h C/1h nl h t?'1 1? N h1 z O Y71 M tU :<ti N1D. Q Ol Ot a!1 ttf !f? Ci d o w ..i M?1 p; v c Ia in in ue w w m n .ti t1 d COMMISSIONERS of UPPER ALLEN TOWNSHIP CUMBERLAND COUNTY BOARD OF COMMISSIONERS: JAMES G. COCHRAN, President KENNEM M. MARTIN. Via President VIRGINIA M. ANDERSON. Assistant Secretary PAUL M. RIGNEY, AzLstant Sectsaary RICHARD A. CASTRANIO. JR.. Assistant Secretary 100 GEMSBURG PIKE MECHANICSBURG. PA 17055-5698 TOWNSHIP MANAGER: LOUIS FAZEKAS TELEPHONE: (717) 766-0756 FAX: (717) 796-9833 E-MAIL: Ifaukas@uppetellentwp.org IVEB PAGE: www,upperallemp o October 14, 2010 Mr. William Welch Benchmark Energy Solutions, Inc. 1500 Cochran Road, Suite 1003 Pittsburgh, PA 1524.3 Re: Benchmark Energy Solutions Dear Mr. William Welch: Please let this letter serve as. your notice that Upper Allen Township has identified four areas of breach of the Agreement for Utility Information and Management Services by Benchmark :Energy Solutions., Inc. The Township is requesting that all issues be rectiflet in a-mannerthat is-acceptableto Township Management within thirty days of the date of this 'letter 'Failure to;properly and`, completely remove Benchmark Energy Solutions from breach of agreement, within thirty days will result in agreement termination: The following are the identified breaches in Benchmark Energy Solutions, Inc.'s Agreement for Utility Information and Management Services: III; Utility Bill Processing and Information.. to assure accurate bills and prompt delivery and payment of the utility bills, Within the last month, the Township began receiving copies of some of'its bills as requested. Upon review of the invoices .it was discovered 'that a&cunt totals reported by Benchmark do not match-those that ire invoiced byPPL. 1a. Scope of services, BSI will provide:` 'Consolidated Utility Billing: Collate, tabulate, summarize and. report mohthly to AIP the consumption, costs and the bill to pay each utility. Benchmark Energy Solutions has consistently misreported or mispaid accounts owned. by the Township. Currently a `.majority of the Township's electrical accounts are being reported ;as having past;due balances. Additionally, several accounts are now required to have security deposits. These types:°of problems did not exist for the T6Wnship prlorto bringing-Benchmark on. 2b. BSI's additional responsibilities: Interface with the utilities and provide timely resolution of problems. At a meeting scheduled by BSI on July 29, EXHIBIT F" Page 2 Letter to Benchmark Energy Solutions, Inc. October 14, 2010 2010, BSI represented that it was working to resolve what it considered communication issues with PPL involving account payments. The Township and its staff have been patient, yet after three months, invoices still display past due balances and warnings for service termination are still being delivered. 2c. BSI's additional responsibilities: Analyze data, compare monthly, seasonal and annual usage and costs. To the best of my knowledge this is not being done and if it is being done for the Township's invoices it is not being reported. Additionally, while not specifically mentioned within the agreement, Benchmark Energy Solutions promised to conduct an audit of the past three years of the Township's electric invoices in the first few months of 2010. To my knowledge this has not be completed or reported on. The overall experience with your company has not been positive. If you feel that your company will be unable to rectify the issues listed in this letter in thirty days, please contact me in writing so that I may cancel the agreement. Also please note that until these issues are fixed, the Township will hold all payments to Benchmark Energy Solutions, Inc. Sincerely, Upper Alien Township Scott Fraser Assistant Township Manager Cc: File 'BENCHMARK Ener, v Solu oas, -inc. 10/22/10 Scott Fraser, Assistant Township Manager Upper Allen Township 100 Gettysburg Pike Mechanicsburg, PA 17055 By Email Dear Scott, This is to acknowledge receipt of your letter dated 10/34/10 regarding several areas of breach of the Management Services Agreement. As may have been evident in June at the meeting we called, and evident yet today, we do not take our responsibilities lightly nor do we shy away from trying to resolve problems. We intend to resolve the issues noted in your letter to the best of our abilities and hopefully to your satisfaction. If we fall short it won't be from. lack of effort on our part but perhaps the lack of cooperation of all those parties involved in servicing the Township, including PPL Utilities and Liberty Power. As you noted in your email 10/14/10 a CD with scanned PPL: bills was sent in June. Sorry if it was blank. It left our office full of data. I hope the most recent scan had the information you were looking for. As you have noted the totals for the PPL bills do not always match Benchmark's bills. There may be several reasons for this which I have noted in communications with all clients: improper addition of sales taxes, the wrong generation price, late fees, etc. In each case where this has happened a memo was sent to PPL or Liberty Power asking for corrections. Most of these issues have been corrected and credits issued. You should also know that we didn't aim to match PPL, or their errors, we attempted to issue correct bills. 2. Past due balances and Security Deposits. We are working through the past due balances and Security Deposits. If you will remember when you joined the IGCA. the first order of business with PPL was your authorization to hem -to send the billings to Benclunark and cooperate with us in setting up the accounts for a smooth transition. Had PPL followed your letter all Township accounts but LP4's and streetlights would be on Summary bills. Summar bills do not have late fees or Security Deposits. As noted above we didn't always match PPL's totals if they were incorrect. These problems may not have existed prior to Benchmark but the lack of PPL's cooperation is noticeable. Also note that Benchmark has paid the late fees. 3. Benchmark's interface with the utilities. Benchmark has communicated. with both PPL and Liberty Power on behalf of the Township and all clients. The Township's recent bills have been accurate and the carry forward balances are being tracked for payment. A statement showing account carry forwards will be sent shortly with the payments still due by the Township for prior months' billings. 1500 COCHRAN ROAD, SUITE 1003. PITTSBURGH, PA 1`5243 T(412)S71-0850 F(412)571-9121 (e) :bmchmerk33@verI= net 1, &,. 'Ely CH.1 11ARK ne.rgv iiolu o-ns, Inc 4. Additional responsibilities. The Township has been a client for several months and the annual review of information is months away. One thing we have done is updated the presentation and content of the monthly bills so that clients can keep track of important monthly totals. One such number is the monthly generation savings which was 10.7% in September. 5. The Audit. We will perform an audit as soars as PPL releases to you the account histories you authorized them to email to you. Can you again send them the authorization letter with a Second Request printed boldly at the top. You can forward the histories upon receipt. Benchmark is keeping its promises. As you can see PPL marches to a different drummer and hasn't been any more cooperative with us than they have been with Upper Allen. Township or marry of their other customers. There is one bright spot and that is the generation savings of 10.7%. As for my responses, #1 The bills are being scanned and the bill differences being resolved with credits or rebills from LP or PPL on the bills. #2 has been corrected, Benchmark has paid the late fees and we continue to pursue the addition of all accounts to Summary billing. The Second Request letter to PPL stamped in bold should help. Please copy us. #3 The report showing carry forward balances will clarify the amounts owed to PPL for past bills, and will be sent for payment this month. #4 will be reported when the annual summary is completed, and #5 will be taken care of after you email us the account histories. So this is the update. As to the Fees I have this to say: the generation savings are as promised and the billing is being fixed where Benchmark has the ability to fix without PPL. At this point you might want to send a :letter to PPL and ask if they could speed up. They are falling behind. Within several weeks we will be going out for another round of generation pricing from suppliers and at that time, with PPL's cooperation, all problems will be fixed. If you are going to be with us for the next round of generation pricing all outstanding balances due to Benchmark will have to be paid. We hope you are with us. Sincerely /s/ William 1. Welch President cc: J Rubb K Welch J Lofink S Dafner K Stool X 1500 COCHRAN ROAD, SURE 1003, PITTSBURGH, PA 15243 T(412)571-0850 F {412)'571-91.31 (e) bencbmaM3@vertwnxet 4 t COMMISSIONERS of UPPER ALLEN TOWNSRIP CUMBERLAND COUNTY 100 GETTYSBURG PIKE BOARD OF COMMISSIONERS: MECHANICSBURG, PA 17055-5698 JAMES G. COCHRAN, President KENNETH M. MARTIN, Vice President VIRGINIA M. ANDERSON, Assistant Secretary PAUL M. RIGNEY Assistant Secretary RICHARD A. CASTRANIO, JR., Assistant Secretary November 2, 2010 TOWNSHIP MANAGER: LOUIS FAZEKAS TELEPHONE: (717) 766-0756 FAX: (717) 796.9833 EMAIL:Ifa ckasfupperallentuporg WEB PAGE: mvivuppetallcrimp,org Mr. William Welch Benchmark Energy Solutions, Inc. 1500 Cochran Road, Suite 1003 Pittsburgh, PA 15243 Re: Benchmark Energy Solutions Dear Mr. William Welch: Please let this fetter serve as -your notice that,effect November 15, 2010, Upper Allen Township is terminating its agreement with Benchmark Energy. Solutions for failure to comply with the provisions of the Agreement for Utility Information and Management Services. I wish you and your company tuck in your future endeavors: Sincerely, Upper Allen Township. Scott Fraser Assistant Township Manager Cc: File EXHIBIT It W BEINCHNII ARK--)o . Energy Solutions, Inc. May 23, 2011 The Board of Commissioners C/o Mr. Scott Fraser, Assistant Township Manager Upper Allen Township 100 Gettysburg Pike Mechanicsburg, PA 17055 Via Email and Certified mail Re: Intergovernmental Cooperation Agreement/Agreement for Utility Information and Management Services (the "Agreements') and Balances due Dear Board and Mr. Fraser: We received Mr. Fraser's letter of October 14, 2010 notifying us of four (4) areas of breaches in the Management Services Agreement (the MSA") and giving Benchmark Energy Solutions, Inc. "BESI") thirty days (30) to rectify them in a manner acceptable to the Township. Also noted was that the Township would hold up all payments to BESI. BESI responded to this first letter on October 22, 2010 noting our progress on three breaches and billing issues (the 0, the auditing, had been completed early in the process without any errors by the utility). Mr. Fraser's first letter was quickly followed up on November 2, 2010 with a letter of termination. effective November 15, 201.0 for failure to comply with the Agreement. Although most issues were resolved, and clearly all would have been resolved within the thirty days, Benchmark was terminated within seventeen days (17). This correspondence is to advise you that your termination of the MSA did not terminate your contract with Liberty Power LLC dated May 27, 2010. Further, this is to advise that because you. ceased forwarding, or having the electric bills forwarded to us for the purposes of auditing, consolidated billing, and billing for the.monthly fees, we have calculated the fees owed to Benchmark for the remaining full term of the Electric Contract with Liberty Power. While performing these calculations we also noted and added the .monthly fees being billed to the Township, but not yet paid. I believe it is essential for the Board, and you, to be aware of the facts so that any decision by them to pay or face litigation is an informed one. These are the important facts that I want to share with you, and then, if necessary, with the appropriate legal authorities. 1. On December 16, 2009 UAT signed the 'Intergovernmental Cooperation Agreement (the "1GCA" ), the Management Services Agreement (the "MSA'J, and an Agreement to negotiate an Electric Generation Contract. As it states in the IOCA Benchmark is the exclusive Energy Consultant to the IGCA and its Agencies. 2. The MSA states in Section 4 Term 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 unless either party notifies the other in writing of its intention to terminate at least (60) days in advance of an expiration date." In Section 6 there are provisions for terminating the 1500 COCHRAN ROAD, SUITE 1003, PITTSBURGH, PA 15243 T (412) 571-0850 F (412):571-9121 (e) benchrmtkMvefton.net EXHIBIT . 4-r Agreements for alleged breaches but UAT's time to cure was confusing: first thirty (30) days and then seventeen (17) days, no notice of to us that we cured the breaches, and apparently no interest in seeing the breaches cured. 3. The 1GCA states in Section 8.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 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. 4. BESI negotiated a Generation Contract for UAT with Liberty Power Holdings LLC ("LP") to reduce the cost of their generation supplies. This was done at UAT's request and UAT signed a Contract with LP wherein LP agreed to deliver 1,971,000 kWh of firm generation to VAT's electric account(s). The average PPL Tariff price of Generation to UAT was to be $0.10480. BESI negotiated a lower price of $0.08852 with LP producing a savings of $32,087.88 or 15.5%. 5. For its Price and Contract Negotiation results, and the savings produced, BESI was to be paid $11,378.65 in Fees. This was according to the Fee Schedule set forth clearly and agreed to in the MSA. UAT ;paid only $1,383.63 of the Fees leaving a balance of :$9,995.02 in fees that are still due to BESI. The Billing Fees were to be $1,307.16 for the seven months. The information attached shows the monthly generation usage, costs, savings, Fees charged and balance due. 6 The billing by LP and PPL, although not to standard from my perspective, was in need of further processing by BESI, but did not in any way hinder the flow of electric generation supplies to UAT, and completion of the Electric Generation Contract. The savings were delivered. This correspondence is to advise you of the Agreements and the Contract you signed., as well as the savings delivered and the Fees still due to Benchmark. UAT (1) received the benefit of our work with $32,087.88 in savings on its electric bills, and (2) is liable for the remaining Fees of $9;995.02 due under the Agreement for the Electric Contract. I think this correspondence is clearly the more effective and economical method of communicating our interest in collecting what is due to us. Litigation is tune consuming and very expensive, and I would hope this matter could be resolved without litigation. If we do not receive payment in full within fifteen (15) days of the date of this letter, however, we will set into motion the appropriate legal action necessary to collect the balance due, as well as the litigation fees and costs we incur. V truly Yours,f William We h President Attachment 1500 COCI RAN ROAD, SUITE 1003, PITTSBURGH, PA 15243 T (412) 571-0850 F (412; 571-9121 (e) benahma*33gMyer1zon.net 4 O O O e O h ? E W N W ? v a o ? N m 'i 43 0 c v N C w a e d L C CL M n 14 a d m 00 0 m 3 d Q w 0 s C C 0 E +R u o C E O a! N O V 42 3 p?d 0 O ?. a o. a m. ?>am 7 V N a w m a i m .? G] c m m c a r= E a m U v- c m o ai i C Q p T 0 0 ti Y ?H ? c T ? a C F ? p w = Vl ? Ua p m v y m 0 'p ?+ 3 R U m c m y c N a m o o `w t o o m f c r ? L G1 V R .` W Y m r 'D 1 = m p= Y f6 p Q m. G '? V C 0 0 3 W y :N C Y 'O L Iyq r= m d C It tn m = c p m ,{ w m c x ° ¢ 40V a a o ..3 °E a Lpr = s E S. V c u w 3 a G) pO IG p `. ? - L p N 1:. C L7 .C •0 3 ? ? E .` m O1 Grr 1m9 OL C t '° a C7 m a v __ ? U' r C 'p p. 'ID ?Q - iG ?_ ? Gal 01. C o a a o _ o W Lo 0?" a ?a n °' a o w p d_ ?, ? 7 L a+ 3 ?+ G??? ma >c? O° c a di m c a 'C s m O 8 v 3 N G? a=`$ up c r ?LL m at _ ur = E yi o "Gj rGj ?o ?" S a v p w. LL = L 'A .Q LL w ,O a .N N F m N .02 N t E" = OJ Ol ` W z = c 't _ € 31 SC ?$' a app7 a w FL m M L :r .. W m w ++ i ? ? ? c dF yy ?+ o p Y .Y N C C C t R O C .E? a E at #G °? cb $ o o S7 ? c n G. s c -Z 10 o .2 ?S 4 m i*9 , W- N W .?P N. N u c :1 o m n c c •? a, m e E .?'. cn 4 EL . A V a t- E }c O. E G L C o b O fs .-i N ?n v = 4 ' r A. n u o` co Goo CD .-I +n Y? I t3 .? m `o,o a t7 LL a a .a 'j`,NM 4 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 unsworn falsification to authorities. Date: -3 129 r f/ w 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 30th day of March 2012, to the following: John Stephen Feinour, Esq. Nauman Smith 200 North 3rd Street P.O. Box 840 Harrisburg, PA 17108 , (/?"'o K-e IA- Rachel D. Felton, Esquire c la Y ? v CD t...,.f J, V c? i i 1 a -. i .,.. J{. a v 1 1 L.J { ....a4. NAUMAN, SMITH, SHISSLER & HALL, LLP By: J. Stephen Feinour, Esquire Attorney I.D. No. 24580 ry, ,"1 r 200 North Third Street, 18`h Floor Attorneys for I1.pp6 A?!I ip P. O. Box 840 Harrisburg, PA 17108-0840 T: (717) 236-3010/F: (717) 234-1925 BENCHMARK ENERGY COURT OF COMMON PLEAS SOLUTIONS, INC. CUMBERLAND COUNTY, PENNSYLVANIA Appellee : NO. 2012-996-Civil VS. UPPER ALLEN TOWNSHIP, Appellant NOTICE TO PLEAD TO: Plaintiff, Benchmark Energy Solutions, Inc. You are hereby notified to plead to the enclosed New Matter within twenty (20) days from the service hereof or a default judgment may be entered against you. NAUMAN, SMITH, SHISSLER AND HALL, LLP by: 5JSuptrCe'me phen Feinour, Esquire Court ID #24580 200 North Third Street P.O. Box 840 Harrisburg, PA 17108 Telephone: 717/236-3010 Telefax: 717/234-1925 Counsel for Defendant, Upper Allen Township Date: May 18, 2012 NAUMAN, SMITH, SHISSLER & HALL, LLP By: J. Stephen Feinour, Esquire Attorney I.D. No. 24580 200 North Third Street, 18`' Floor Attorneys for Upper Allen Township P. O. Box 840 Harrisburg, PA 17108-0840 T: (717) 236-3010/F: (717) 234-1925 BENCHMARK ENERGY SOLUTIONS, INC. Appellee VS. UPPER ALLEN TOWNSHIP, Appellant COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2012-996-Civil ANSWER OF DEFENDANT, UPPER ALLEN TOWNSHIP, WITH NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT Defendant, Upper Allen Township, by and through its counsel, Nauman, Smith, Shissler & Hall, LLP, hereby answers the Amended Complaint filed by Plaintiff, Benchmark Energy Solutions ("Plaintiff' or "BESI"), and in support thereof respectfully avers as follows: 1. Admitted upon information and belief. 2. Admitted. 3. The averments of paragraph 3 constitute a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 4. The averments of paragraph 4 constitute a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 5. It is admitted only that Plaintiff, BESI, purports to be an energy consulting firm offering the services identified in paragraph 5. However, BESI failed to provide such services for -1- Defendant, Upper Allen Township, as more fully set forth in the averments of Defendant's New Matter herein below. 6. Denied as stated. It is admitted that the City of Harrisburg entered into the Amended and Restated Intergovernmental Cooperation Agreement ("IGCA"), a copy of which is attached to the Amended Complaint as Exhibit A. Defendant, Upper Allen Township ("Upper Allen"), became a party to the Agreement by execution of the IGCA Joinder Agreement on December 16, 2009. After reasonable investigation,.Defendant, Upper Allen, is without sufficient knowledge or information to form a belief as to the truth of the remaining averments of paragraph 6 regarding the local governmental agencies that entered into the IGCA and therefore demands proof thereof. 7. Denied. The IGCA is a written document, the terms of which speak for themselves, any characterization thereof by Plaintiff being denied. 8. Denied. The IGCA is a written document, the terms of which speak for themselves, any characterization thereof by Plaintiff being denied. 9. Denied as stated. It is admitted that under the terms of the IGCA BESI was to be paid a performance fee for its services, costs and expenses associated with the Agreement. It is denied that BESI is entitled to the fees which it is claiming to be owed by Upper Allen due to BESI's breach of the terms of its contract with Upper Allen. 10. Admitted. 11. Admitted. 12. Admitted. 13. Denied as stated. The Agreement for Utility Information and Management Services ("MSA") is a written document, the terms of which speak for themselves, any characterization -2- thereof by Plaintiff being denied. It is denied that paragraph 13 of Plaintiff's Amended Complaint fully or accurately sets forth the services to be provided by BESI under the MSA. 14. Denied. The MSA is a written document, the terms of which speak for themselves, any characterization thereof by Plaintiff being denied. 15. Denied. The MSA is a written document, the terms of which speak for themselves, any characterization thereof by Plaintiff being denied. 16. Denied. The MSA is a written document, the terms of which speak for themselves, any characterization thereof by Plaintiff being denied. 17. Admitted in part and denied in part. It is admitted that on or about December 16, 2009, BESI and Upper Allen entered into an agreement with Seven-Utility Management Consultants, Ltd. ("SUMC"), a copy of which is attached to the Amended Complaint as Exhibit D. The Agreement between Upper Allen and SUMC is a written document, the terms of which speak for themselves, any characterization thereof by Plaintiff being denied. 18. Admitted in part and denied in part. It is admitted that Upper Allen entered into an Electricity Service Agreement with Liberty Power Holdings, LLC ("Liberty Power") on or about May 27, 2010, a copy of which is attached to the Amended Complaint as Exhibit E. The Electricity Service Agreement is a written document, the terms of which speak for themselves, any characterization thereof by Plaintiff being denied. 19. Admitted. 20. Admitted in part and denied in part. It is admitted that Pennsylvania Power and Light Company ("PPL") was the electric utility providing electric generation service to Upper Allen Township. The Liberty Power Contract is a written document, the terms of which speak for -3- themselves, any characterization thereof by Plaintiff being denied. After reasonable investigation Defendant, Upper Allen Township, is without sufficient knowledge or information to form a belief as to the truth of the remaining averments of paragraph 20 and proof thereof is demanded at trial. 21. Denied. It is denied that in December 2009, BESI agreed to amend its fee schedule under the MSA. 22. Denied. Paragraph 21 of this Answer is incorporated by reference herein. 23. Denied. The Liberty Power agreement attached as Exhibit E to the Amended Complaint is a written document, the terms of which speak for themselves, any characterization by Plaintiff being denied. 24. Admitted. 25. It is admitted that Upper Allen Township sent the letter dated October 14, 2010, to Mr. William Welch, President of BESI, identifying breaches of the MSA by BESI and requesting that all issues be rectified in a manner acceptable to the Township within 30 days of the date of the letter. 26. Denied. The October 14, 2010, letter from Scott Fraser, Assistant Township Manager of Upper Allen Township to William Welch at BESI is a written document, the terms of which speak for themselves, any characterization thereof by Plaintiff being denied. 27. Admitted in part and denied in part. It is admitted that William J. Welch, President of BESI, sent a letter dated October 22, 2010, to Upper Allen Township. The letter dated October 22, 2010, is a written document, the terms of which speak for themselves, any characterization thereof by Plaintiff being denied. It is further denied that BESI had taken appropriate steps to cure its breaches of the MSA and had satisfactorily addressed the demands of Upper Allen Township. -4- 28. Admitted in part and denied in part. It is admitted only that Upper Allen Township sent the letter dated November 2, 2010, attached to the Amended Complaint as Exhibit H, to BESI. It is denied that BESI engaged in efforts to cure the breaches noted by Upper Allen Township or that any efforts by BESI cured said breaches. 29. Denied. It is denied that from August 2010 through September 2010, BESI processed Upper Allen Township's electric bills issued by PP&L, including the electric generation accounts under the Liberty Power Contract. To the contrary, BESI failed to timely process the Township's electric bills resulting in the Township receiving numerous delinquency notices and having various municipal facilities posted with electric service termination notices. Any services performed by BESI were improperly and negligently performed. 30. Admitted in part and denied in part. It is admitted that after September 2010, Upper Allen Township requested PP&L to cease forwarding its electric bills to BESI due to BESI's numerous breaches in the MSA and failure to timely process payment of such bills. It is denied that Upper Allen Township interfered with or prevented BESI from properly performing its obligations under the MSA. Upper Allen Township incorporates the averments of its New Matter by way of further response hereto. 31. Denied. It is admitted only that Upper Allen Township stopped PP&L from forwarding its electric generation bills to BESI due to BESI's repeated failure to timely and properly process said bills. Upper Allen Township incorporates the averments of its New Matter by way of further response hereof. 32. Denied. It is denied that Upper Allen Township did not pay BESI the full amount of fees due to BESI between August 2010 and February 2011, or that such fees were properly due and -5- owing to BESI as a consequence of BESI's repeated breach of its obligations under the MSA, which BESI failed to timely cure. 33. Admitted in part and denied in part. It is admitted that BESI sent the letter dated May 23, 2011, to Upper Allen Township, attached as Exhibit I to the Amended Complaint. The letter dated May 23, 2011, is a written document, the terms of which speak for themselves, any characterization thereof by Plaintiff being denied. It is denied that BESI performed services in accordance with its obligations under the MSA and the IGCA. It is further denied that BESI was entitled to fees for any services. 34. Admitted. It is admitted that Upper Allen Township did not respond to the letter dated May 23, 2011, inasmuch as no response was required. Upper Allen Township had notified BESI on numerous occasions of BESI's breaches under the MSA, yet BESI failed to timely cure such breaches. COUNT I: BREACH OF CONTRACT 35. Upper Allen Township incorporates the responsive averments of paragraphs 1 through 34 above as though more fully set forth herein. 36. Admitted. 37. Denied. The MSA is a written document, the terms of which speak for themselves, any characterization thereof by Plaintiff being denied. It is admitted that the MSA provided for the payment of certain fees to BESI by Upper Allen Township, provided BESI properly performed its obligations under the MSA, which it failed to do. -6- 3 8. Denied. The averments of paragraph 3 8 of Plaintiff s Amended Complaint constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent they be deemed averments of fact the same are denied. Upper Allen Township incorporates the averments of its New Matter by reference hereto. 39. Denied. The averments of paragraph 39 of Plaintiff s Amended Complaint constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. If, however, they be deemed averments of fact, the same are denied. 40. The averments of paragraph 40 of the Amended Complaint constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. If, however, they be deemed averments of fact, the same are expressly denied. WHEREFORE, Defendant, Upper Allen Township, requests that Plaintiffs' Amended Complaint be dismissed with prejudice and judgment be entered in favor of Upper Allen Township, together with costs of this proceeding. COUNT II: UNJUST ENRICHMENT 41. Upper Allen Township incorporates the responsive averments of paragraphs 1 through 40 above as though more fully set forth herein. 42. Denied. The averments of paragraph 42 of Plaintiff s Amended Complaint constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent they be deemed averments of fact, the same are denied. By way of further answer, any services performed by BESI conferred no benefit upon Upper Allen Township due to -7- the fact that BESI failed to timely and properly process the invoices as more fully set forth in the averments of Upper Allen Township's New Matter herein below. 43. Denied. The averments of paragraph 43 of Plaintiff's Amended Complaint constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent they be deemed averments of fact, the same are denied. By way of further answer, any services performed by BESI conferred no benefit upon Upper Allen Township due to the fact that BESI failed to timely and properly process the invoices as more fully set forth in the averments of Upper Allen Township's New Matter herein below. 44. Denied. The averments of paragraph 44 of Plaintiff's Amended Complaint constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent they be deemed averments of fact, the same are denied. By way of further answer, any services performed by BESI conferred no benefit upon Upper Allen Township due to the fact that BESI failed to timely and properly process the invoices as more fully set forth in the averments of Upper Allen Township's New Matter herein below. WHEREFORE, Defendant, Upper Allen Township, requests that Plaintiffs' Amended Complaint be dismissed with prejudice and judgment be entered in favor of Upper Allen Township, together with costs of this proceeding. COUNT III QUANTUM MERUIT 45. Upper Allen Township incorporates the responsive averments of paragraphs 1 through 44 above as though more fully set forth herein. -8- 46. Denied. It is denied that BESI performed services benefitting Upper Allen Township or that BESI properly and timely processed Upper Allen Township's electric bills. To the contrary, BESI repeatedly failed to timely process the payment of Upper Allen Township's electric bills, resulting in the issuance of numerous delinquency notices by the electric utilities to Upper Allen Township and the posting of various municipal facilities with utility shutoff notices, despite the fact that Upper Allen Township had timely paid said invoices. 47. Denied. It is denied that Upper Allen Township "accepted" the services of BESI. To the contrary, Upper Allen Township repeatedly notified BESI of BESI's failure to timely process and pay the bills of the electric utilities providing service to Upper Allen Township. 48. Denied. It is denied that BESI performed its services in accordance with the terms of the MSA. 49. Denied. The averments of paragraph 49 of the Amended Complaint constitute a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. If, however, they be deemed averments of fact, they are denied. WHEREFORE, Defendant, Upper Allen Township, requests that Plaintiffs' Amended Complaint be dismissed with prejudice and judgment be entered in favor of Upper Allen Township, together with costs of this proceeding. NEW MATTER 50. The averments of paragraphs 1 through 49 of this Answer are incorporated herein by reference thereto. -9- 51. Plaintiffs Amended Complaint fails to set forth any claim or cause of action upon which relief may be granted. 52. BESI commenced the performance of its services under the MSA in February, 2010. 53. Within the first two months following the commencement of BESI's services under the MSA, Upper Allen Township received notices of late fees being charged by its utility providers due to the failure of BESI to timely pay the utility bills. 54. Upper Allen Township timely paid BESI the amounts due for the payment of utility services provided under the MSA. 55. A representative of Upper Allen Township contacted William J. Welch, President of BESI, on April 14, 2010, and informed him of the late fees to which Mr. Welch responded that it would be fixed. 56. Plaintiff was obligated under the MSA to provide prompt and accurate processing of utility bills. 57. Plaintiff was obligated under the MSA to assure the issuance of accurate bills for utility services. 58. Plaintiff was obligated under the MSA to ensure prompt delivery and payment of utility bills. 59. Plaintiff failed on numerous and repeated occasions to perform its duty in a timely and professional manner. 60. Plaintiff repeatedly failed to achieve prompt processing, delivery and payment of utility bills after being notified by Upper Allen Township of the late fees and posting of utility termination notices on its municipal facilities due to Plaintiffs failure to promptly pay the utility -10- bills, despite the fact that the funds for payment on these accounts were promptly paid by Upper Allen Township to Plaintiff. 61. Plaintiff failed to provide Upper Allen Township with copies of invoices in order to enable Upper Allen Township to confirm what invoices were'paid or remained unpaid by Plaintiff on Upper Allen Township's behalf. 62. As a consequence of BESI failing to promptly make timely payment on Upper Allen Township's PP&L accounts, PP&L assessed security deposits on some of the Township accounts. 63. Upper Allen Township received notice from PP&L of its intention to shut off power to Defendant's sewage system pump stations and other municipal facilities due to BESI's failure to timely pay Upper Allen Township's PP&L account bills. 64. As a consequence of Plaintiff, BESI" S failure to perform its obligations under the MSA, Upper Allen Township staff were required to expend significant additional time to address BESI's invoice errors and issues than they would have expended had the Township handled payment of its bills to PP&L directly. 65. Defendant, Upper Allen Township, claims the reasonable value of its staff time, as noted in paragraph 64 above, as a set off to any claim of Plaintiff in this action. 66. As a consequence of Plaintiff, BESI's failure to perform its duties under the contract, representatives of Upper Allen Township and four other municipal clients of BESI met with representatives of BESI in an effort to resolve the numerous and common problems the municipalities had with Plaintiff s failure to properly and timely process utility invoices. 67. Notwithstanding the assurances of Plaintiff s President, William J. Welch, that the problems would be promptly corrected, BESI failed to correct the problems with its services. -11- I I , s 68. As a direct consequence of the failure of Plaintiff, BESI to perform its obligations under the IGCA and the MSA, numerous municipalities in addition to Defendant, Upper Allen Township, including but not limited to Lower Allen Township, Hampden Township, Palmyra Borough, Marysville Borough, East Pennsboro Township (electric only), Bloomfield Township, Hanover Borough and Rye Township, terminated BESI's services. 69. Plaintiff, BESI, repeatedly failed to provide timely resolution of the billing problems with PP&L or otherwise. 70. Plaintiff, BESI is barred from recovery under the doctrine of estoppel. 71. Plaintiff, BESI is barred from recovery on the basis of its unclean hands. 72. Plaintiff, BESI is barred from recovery due to its numerous and repeated breaches of the MSA. WHEREFORE, Defendant, Upper Allen Township, requests that Plaintiffs' Amended Complaint be dismissed with prejudice and judgment be entered in favor of Upper Allen Township, together with costs of this proceeding. NAUMAN, SMITH, SHISSLER & HALL, LLP By ` St hen Feinour, Esquire upreme Court ID #24580 200 North Third Street, 18th Floor P. O. Box 840 Harrisburg, PA 17108-0840 Phone: 717-236-3010 Fax: 717-234-1925 Attorneys for Defendant, Upper Allen Township Date: May 18, 2012 -12- I VERIFICATION I, Scott Fraser, verify that I am the Assistant Township Manager of Upper Allen Township, that as such I am authorized to make this verification and that the statements made in the foregoing "Answer with New Matter of Upper Allen Township to Complaint of Benchmark Energy Solutions, Inc." are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Date: r ScottFraser CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Jeannette Chelgren, an employee of the firm of Nauman, Smith, Shissler & Hall, LLP, hereby certify that I this day served the foregoing "Answer of Upper Allen Township with New Matter to Plaintiff's Amended Complaint" and proposed "Order" by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed to the following: Steven Petrikis, Esquire Rachel Felton, Esquire Metz, Lewis, Brodman, Must, O'Keefe, LLC 11 Stanwix Street, 18`h Floor Pittsburgh, PA 15222 Jeannette Chelgren, Secr to J. Stephen Feinour, Esquire Date: May 18, 2012 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 .:f0 TPA , a 3 " ICI: 11IDERLAND COUNTY FINNSYLVAINI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BENCHMARK ENERGY SOLUTIONS, INC., Plaintiff, vs. UPPER ALLEN TOWNSHIP, Defendant. ARBITRATION CASE NO. 2012-996 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: 50. Paragraph 50 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. 51. Paragraph 51 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment. 52. Denied. BESI commenced providing services to Defendant under the MSA in or around April of 2010. 53. Admitted in part and denied in part. It is admitted that Defendant received notices of late fees. It is denied that the notices were due to the failure of BESI to timely remit payment of Defendant's utility bills. To the contrary, Defendant failed on numerous occasions to timely transmit funds to BESI for the timely payment of Defendant's utility accounts. 54. Denied. To the contrary, Defendant failed on numerous occasions to timely transmit funds to BESI for the timely payment of Defendant's utility accounts. 55. After reasonable investigation, BESI is without sufficient knowledge or information to form a belief as to truth of whether some unknown and unnamed representative of Defendant contacted William J. Welch on April 14, 2010, regarding any alleged late fees. It is further denied that BESI was responsible for any late fees at that time. To the contrary, Defendant failed on numerous occasions to timely transmit funds to BESI for the timely payment of Defendant's utility accounts. 56. Paragraph 56 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment as the content of the MSA, being a document in writing, speaks for itself. 57. Paragraph 57 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment as the content of the MSA, being a document in writing, speaks for itself. 58. Paragraph 58 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment as the content of the MSA, being a document in writing, speaks for itself. 2 59. Paragraph 59 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment. Although some problems existed with 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. In addition, Defendant failed on numerous occasions to timely transmit funds to BESI for the timely payment of Defendant's utility accounts. 60. Denied. Although some problems existed with 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. In addition, Defendant failed on numerous occasions to timely transmit funds to BESI for the timely payment of Defendant's utility accounts. 61. After reasonable investigation, BESI is without sufficient knowledge or information as to what Defendant means by "copies of invoices" and accordingly denies this averment. 62. After reasonable investigation, BESI is without sufficient knowledge or information to form a belief as to the truth of whether Defendant was assessed security deposits on some of Defendant's PPL accounts and accordingly denies this averment. It is further denied that any security deposits were the consequence of BESI failing to promptly make timely payment on Defendant's accounts. To the contrary, Defendant failed on numerous occasions to timely transmit funds to BESI for the timely payment of Defendant's utility accounts. 3 63. After reasonable investigation, BESI is without sufficient knowledge or information to form a belief as to the truth of whether Defendant received notice from PPL of its intention to shut off power to Defendant's sewage system pump stations and other municipal facilities and accordingly denies this averment. It is further denied that any shut off notices were the consequence of BESI failing to promptly make timely payment on Defendant's accounts. To the contrary, Defendant failed on numerous occasions to timely transmit funds to BESI for the timely payment of Defendant's utility accounts. 64. Paragraph 64 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment as the content of the MSA, being a document in writing, speaks for itself. Although some problems existed with Defendant's utility bills, BESI fully and properly performed its obligations in a professional manner and any extraneous staff time that Defendant spent dealing with the payment of Defendant's PPL bills was also the result of Defendant, PPL and/or Liberty Power's failure to fully and properly perform their respective obligations. 65. Paragraph 65 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment and incorporates its response to paragraph 64. 66. Admitted in part and denied in part. It is admitted 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 the municipalities' utility bills, including the billing problems and 4 errors that were the result of the municipalities, PPL and/or Liberty Power's failure to fully and properly perform their respective obligations. 67. Denied. To the contrary, BESI diligently worked to correct any alleged problems with BESI's services and diligently attempted to resolve problems caused by 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 some of the municipalities wrongfully terminated BESI's services. It is denied that BESI failed to properly perform its obligations under the IGCA and the MSA. To the contrary, although some problems existed with Defendant and other municipalities' utility bills, many billing problems and errors were the result of Defendant, other municipalities, PPL and/or Liberty Power's failure to fully and properly perform their respective obligations. 69. Denied. 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. 70. Paragraph 70 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment. 71. Paragraph 71 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment. 72. Paragraph 72 states a conclusion of law to which no response is required. To the extent a response is required, BESI denies the averment. 5 WHEREFORE, Benchmark Energy Solutions, Inc. respectfully requests that judgment in excess of $8,191.44 plus continuing and additional interest and costs be entered against Defendant Upper Allen Township. Date: June 12, 2012 Respectfully submitted, METZ LEWIS BRODMAN MUST O'KEEFE LLC By: Ac k-0 .0 re- / ?, Steve Petrikis, Esq. Pa. I.D. No. 34426 Rachel D. Felton, Esq. Pa. I.D. No. 205929 11 Stanwix Street, 18a' Floor Pittsburgh, PA 15222 (412) 918-1100 Attorneys for Plaintiff, Benchmark Energy Solutions, Inc. 6 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 unsw-orn falsification to authorities. Date: { 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 snail, first class, postage prepaid, this 12th day of June 2012, to the following: J. Stephen Feinour, Esquire 200 North Third Street, 18'b Floor P.O. Box 840 Harrisburg, PA 17108 &c-tt D Pj ?- Rachel D. Felton, Esquire 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 CWILV-- IN RE: MOTION OF DEFENDANT HAMPDEN TOWNSHIP TO CONSOLIDATE ACTIONS FOR HEARING ORDER OF COURT AND NOW, this 31St 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, M. L. Ebert, Jr., J. �, Rachel D. Felton, Esquire' Stephen Feinour, Esquire Keith O. Brenneman, Esquire 4? bas ; 1/1-3 t _ 1"I? D-OF r ICE OF THE PROTHONO lAM' 2013 AUG 28 P 1: 63 CUMBERLAND COUNTY PENNSYLVANIA 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. 201.1-9396 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 SC '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 Plaintiffs 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, l8th 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 SNELBAKER& ' BRENNEMAN, P.c. - Date: August 28, 2013 Metz Lewis Brodman Must O'Keefe LLC PRO rf�Q11 TA M t, Steve Petrikis, Esquire 3 EP 23 Pa. I.D.No. 34426 Ph 1: 05 Rachel D. Felton,Esquire MBERLAP � CU 535 Smi No. 205929 thfield hfield Street, suite 800 p��NSYLVANQANTy 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. 2012-996 CIVIL Plaintiff, ) VS. ) UPPER ALLEN TOWNSHIP, ) Defendant. ) NOTICE OF CHANGE OF ADDRESS TO: CLERK OF COURT 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. Respectfully submitted, METZ LEWIS BRODMAN MUST O'KEEFE LLC By: Lltk 6. 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, Benchmark Energy Solutions, Inc. 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 18th day of September 2013, to the following: J. Stephen Feinour, Esquire 200 North Third Street, 18th Floor P.O. Box 840 Harrisburg, PA 17108 —(&-cw 0 � � Rachel D. Felton, Esquire r� 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 COMMONL'PLEAS INC., OF CUMBERLAND COUNT, :K �-� ._-I Plaintiff PENNSYLVANIA ;Z can~- pv -G> ,. V. CIVIL ACTION — LAW UPPER ALLEN TOWNSHIP, NO. 12-996 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, *� A �A", �M. L. Ebert, Jr., J. achel D. Felton, Esquire Steven Petrikis, Esquire Attorneys for Plaintiff /.' tephen Feinour, Esquire Attorney for Defendant, Upper Allen Township Keith O. Brenneman, Esquire / Attorney for Defendant, Hampden Township I.F—S / '[-Ct ICCL Q/�/3 Metz Lewis Brodman Must O'Keefe LLC 1 I u Ti , E Steven Petrikis,Esquire 211!301:T -7 Pa. I.D.No. 34426 j, Rachel D. Felton, Esquire i,f ibERL " +� q PtNNsyLv @ANTY 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 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: tACkt. U le' '-- 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 --eta if) (Ci/c ) Rachel D. Felton, Esquire 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. -- ) tTlr_. UPPER ALLEN TOWNSHIP, ) -.'4 Defendant. <ci ORDER OF COURT ' " AND NOW, Ode, 4 zjp , 2013, in consideration of the foregoing petition, OA_ � , Esq., jay , Esq. and 12l ai �j Q/`�� , Esq. are appointed arbitrators in the above- captioned actions as prayed for. BY THE COURT: 4 /44, Kevin . Hess, P.J. ✓' &aatel h. / /41 4, I44.4-k D. ebv a n t-233:3 2�v FILED-0 r ., 66/�, Metz Lewis Brodman Must O'Keefe LLC RQ THQNQ TAR x Steven Petrikis,Esquire ?013 OCT y Pa.I.D.No. 34426 r 7 4i 1I: 55 Rachel D.Felton,Esquire cumBE R(.AND Pa.I.D.No. 205929 PENNS YLVAFdtA TY 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: tovd. p Steve Petrikis,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 n �4 • 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 �Ccc1.4,t Rachel D. Felton, Esquire • Z- 71/CIVIAA"i .tiZ-Xt) i r.. In The Court of Common Pleas of Cumberland ZP77G,v. ..,,.w , ys. PIaintiff /z ��-i�,ei� e' AJ 7—A/1 , 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 Constiteion of this Commonwealth and that we will discharge the duties of our office 4th f.- i►-` / / / . . �, *4:.- _, /,,6,_. ,lik-___,.-A_____ Signature Signature Signature , la ,1 / /�: 4(C G .,t r 11T1,016.1 � icLI wl.re. ) Name (Cha._an) Name Name / °/ c /�=CPC ° LC<' C G � N,,r -e.s (' l- J �'Z M �� , � �✓ O't'frfc5 e� MIC�I t�• ��IRfI, Law Firm Law Firm Law Firm / N. M cj-➢' - P 3 7 E. • Po,,S44- 54• Address Address Address i 601-k-Z4E/ //69 3 �- r(10,k. 171) 1 CcAs\c 1470(3 City, Zip City, Zip City, Zip Award We, the undersigned arbitrator, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, th,ey shall be separately stared.) h/a //✓t% )_ /4) /z-->r-1/6'X -7.-.-7' , 2/t/ 2/. L'^ /,--- X2 412 136, / 4A/ A7)✓li S7" ‘,C&-- )4,/11-7— ._Arbitrator;- 's nts (Insert-name-if applicable.) Date of Hearing: ///4/J7 // ��v� (Chairman) _ Date of Award: ///��/ 1110. _-lam lrtl•] .- 411/11 h7 k ill ,., ... -..,. -.. Notice of Entry of Award Now, the / '"day of , 20 /41 , at =�5—, fl 1\11., the above award was entered upon the docket and notice ereof given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: S 1l/Go.S� iNNIP-41114111011 / / By: Prothonotary Deputy )) P1'; lii tL i ; , ,j � E t .ENNS`V`L 7f' C,1. Eaaej (1414111- Z6 -� 1/..,/// • Metz Lewis Brodman Must O'Keefe LLC Steve 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 0 F HE PF3:31-110MOTAF% .2a14 APR —14 AH 11 CUMERLAND COUNTY PENNSYLVANiA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BENCHMARK ENERGY SOLUTIONS, INC., Plaintiff, vs. UPPER ALLEN TOWNSHIP, Defendant. ARBITRATION CASE NO. 2012-996 CIVIL PRAECIPE TO SATISFY JUDGMENT AND DISCONTINUE TO: CLERK OF COURT Kindly satisfy the judgment entered on behalf of Plaintiff, Benchmark Energy Solutions, Inc., and against Defendant Upper Allen Township, and mark the above-captioned case Discontinued as to Defendant. METZ LEWIS BRODMAN MUST O'KEEFE LLC B 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 Phone: (412) 918-1100 Attorneys for Plaintiff NAUMAN, SMITH, SHISSLER AND HAL , LLP . S ben Feinour, Esquire Pa I.D. No.: 24580 200 North Third Street, 18th Floor P.O. Box 840 Harrisburg, PA 17108 Phone: (717) 234-1925 Attorneys for Defendant