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HomeMy WebLinkAboutKERR MCGEE - CONTRACT - BID - 5916 NATURAL GASGeneral Terms and Conditions Base Contract for Sale and Purchase of Natural Gas AMENDED FOR USE BY STATE OF COLORADO SECTION 1. PURPOSE AND PROCEDURES 1.1. These General Terms and Conditions are intended to fadlitate purchase and sale transactions of Gas on a Firm or Interruptible basis. "Buyer' refers to the parry receiving Gas and "Seller" refers to the party delivering Gas. The entire agreement InPlwrwn the narfiw ehati Fin tho r:rrhhari as ri fi w " �� 7 The parties have selected either the "Oral Transaction Procedure" or the "Written Transaction Procedure" as indicated on the Base Contract Oral Transaction Procedure: NOT APPLICABLE TO STATE OF COLORADO 1.2. The P130106 Shall be legally 101916114d bam the tims fty so agree te tFanseGIJeR tsmis and May 813811 rely themes. My such ARISHOWS shall lee sensodeFed a "WTkiRg' and to have IsseA 'signed". 01811VAIJ161landil4f) the JeFeiieillii sent at CORAFFRiAll Wbih"814 OF addllieRal FOPFOSSAIMA40146 811131 warranties), Shigh Provisions Shall R81 be deemed to be ampled puRillepil to 6091JOA 4.3 Written Transaction Procedure: 1.2. The parties will use the following Transaction Confirmation procedure. Should the parties come to an agreement regarding a Gas purchase ,and sale transaction for a particular Delivery Period, the Confirming Party shall, and the other party may, record that agreement on a Transaction Confirmation and communicate such Transaction Confirmation by facsimile, eles7atis-means, hand delivery, mail or courier to the other party by the close of the Business Day following the date of agreement. The parties acknowledge that their agreement will not be binding until Transaction Conflrmation is a' ned by b rties. 1.3. If a sending partys Transaction Confirmation is matenaky different from the receiving party's understanding of the agreement referred to in Section 1.2, such receiving party shall notify the sending party via facsimile, , hand delivery, mail or courier by4he-Geafiwr}Beadline, unless such receiving party has previously sent a Transaction Confirmation to the sending party. . If there are any material differences between timely sent Transaction Confirmators governing the same transaction, then neither Transaction Confirmation shall be binding until or unless such differences are resolved including the use of any evidence that clearly resoNes the differences in the Transaction Confirmations. In the event of a conflict among the terms of (i) a binding Transaction Confirmation pursuant to Section 1.2,(i) the are! agFeement of the paq as wh3sh may he eAdessed by a -aseFdad senversaMen, "are !he Parties have 6818sted #;a QFBITFartseetign PFeeedupe of ft Rose Go (iti) the Base Contract and (iv) these General Terms and Conditions, the terns of the documents shall govem in the priority listed in this sentence. SECTION 2. DEFINITIONS The terms set forth below shall have the meaning ascribed to them below. Other terms are also defined elsewhere in the Contract and shall have the meanings ascribed to them herein. 2.1. "Alternative Da nages' shall mean such damages, expressed in dollars or dollars per MMBtu, as the parties shall agree upon in the Transaction Confirmation, in the event either Seller or Buyer fails to perform a Firm obligation to deliver Gas in the case of Seller or to receive Gas in the case of Buyer. 2.2. 'Base Contracr shall mean a contract executed by the parties that incorporates these General Terms and Conditions by reference; that specifies the agreed selections of provisions contained herein: and that sets forth other information required herein and any Spacial Provisions and addendum(s) as identified on page one. Copyright 0 2002 North American Energy Standards Board, Inc. NAESB Standard 6.3.1 All Rights Reserved Page 2 of 10 April 19, 2002 APR-21-2005 WED 09:42 AM KERR-KGEE GAS WING FAX No. 3033080004 P. 002 Purchasing Department Purchasing Fax Phone Bid No. 5916 Bid Date: Argil 27, 2005 Gas Supplier: Kerr. McGee Energy Sex:vices Corporation Supplier Phone Number: 720-264-2616 1, (to be used on bid date to confirm) FY06 CIG Index Adder Price ($/dth): plus $0.26 Supplier Fax Phone Number: 303-308-0004 2. FY06 Full -Year NYWX Basis Differential Price ($/dth): L; 5-s $0. 46 * 3. FY06 CIG Index Adder Price (T/dth): 4. FY06 Full -Year Volume Fixed Price ($/dth): 5. FY07 NYMXX Basis Differential Price ($/dth): 6. FY07 CIG Index Adder Price ($/dth): 7. FY07 Full -Year Volume Fixed Price ($/dth): Bidder Acknowledges Receipt of Bid Solicitation.' Bidder Acknowledges Did Periods as Follows: + FY06 is June 1, 2005 through May 31, 2006 FY07 is June 1, 2006 through May 31, 2007 Bidder Acknowledges and Accepts Use of Attached Exhibit A Transaction Conarmation with Special Conditions: Authorized Agent: Chris Fade (Print or type name) Market Representative Gate) *See Attached Exhibit 'A" 7 Plus $0.26 $7.32 LeAn 80.45 Fit1s+$0. 26 $7.22 X Yes No X Yes No __X_yes No _ L17go y_ C616. Cp)o is cl) Kc:y\,`Fr_ Low. 1- APR-21-2003 WED 09:43 AM KERR-MCGEE GAS MKTING FAX No Exhibit "A" City of 1~t. Collins Invitation to Bid Bid # 5916 Swing Purchases and Liquidated Prices: Purchases: GIG Midpoint, Platts Gas Daily, Average of the month + $0.25 Buy -Backs: GIG Midpoint, Platts Gas Daily, Average of the month + $0.05 P. 003 Disclaimer: Kerr-McGee Energy Services Corporation will make best efforts to maintain the prices quoted in this Invitation; however, Kerr-McGee Energy Services Corporation reserves the right to adjust such prices quoted herein should a change occur between the date of this proposal and acceptance date. The prices quoted above are exclusive of Xce) transportation charges. APR-27-2005 WED 09:42 AM KERR-MCGEE GAS MKTING FAX No. 3033080004 P. 002 Purchasing Department Purchasing Fax Phone Bid No. 6916 Bid Date: Arpi1.27, 2005 Gas Supplier: Reis McGee Energy_ Services, Corporation Supplier Phone Number: 726-264-2616 1. (to be used on "bid date to confirm) FY06 CIG Index Adder Price ($/dth): plus $0.26 Supplier Fax Phone Number: 303-308-0004 2. FY06 Full -Year NYMEX Basis Differential Price ($/dth): T; s.s S0. ZFti 3. FY06 CIG Index Adder Price (S/dth): Flue $0.26 4. FY06 Full -Year Volume Fixed Price ($/dth): $7.32 5. FY07 NYMXX Basis Differential Price ($/dth): Lens $0, 45 6. FY07 CIG Index Adder Price ($/dth): 7. FY07 Full -Year Volume Fixed Price ($/dth): Bidder Acknowledges Receipt of Bid Solicitation.: Bidder Acknowledges Bid Periods as Follows: • FY06 is June 1, 2005 through May 31, 2006 • FY07 is June 1, 2006 through May 31, 2007 Bidder Acknowledges amd Accepts Use of Attached Exhibit A Transaction Confirmation with Special Conditions. Authorized Agent: Chris Fade (Print or type name) Market Representative (Prti pe titla (Signature) April 7, 2005' *See ,Attached Exhibit "A" ' 7 Pltts-+-$0.26 $7,22 X Yes No % Yes No X Yes No * APR-27-2005 WED 09:43 AM KERR-MCGEE GAS UTING FAX No. 3033080004 P.003 Exhibit "A" City of Ft. Collins Invitation to Bid Bid # 5916 Swing Purchases and Liquidated Prices: Purchases, CIG Midpoint, Platts Gas Daily, Average of the month + $0.26 Buy -Backs: CIG Midpoint, Platts Gas Daily, Average of the month + $0.05 Disclaimer: Kerr-McGee Energy Services Corporation will make best efforts to maintain the prices quoted in this Invitation; however, Kerr-McGee Energy Services Corporation reserves the right to adjust such prices quoted herein should a change occur between the date of this proposal and acceptance date. The prices quoted above are exclusive of Xcel transportation charges. 2.3. "British thermal unit' or "Btu" shag mean the International BTU, which is also called the Btu (IT) 2.4. "Business Day" shall mean any day except Saturday, Sunday, of Federal Reserve Bank holidays and State of Colorado Ilda s. 2.5. "Confirm Deadline" shall mean 5:00 p.m. in the receiving party's time zone on the second Business Day following the Day a Transaction Confirmation is received or, p applicable, on the Business Day agreed to by the parties in the Base Contract provided, if the Transaction Confirmation is time stamped after 5:00 p.m. in the receiving pares time zone, it shall be deemed received at the opening of the next Business Day. 2.6. "Confirming Party" shall mean the party designated in the Base Contract to prepare and forward Transaction Confirmations to the other party 2.7. "Contract" shag mean the legally-bincl'ng relationship established by (i) the Base. Contract (g) any and all binding Transaction Confirmations and Exhibit A (Transaction Confirmation Form), State Price Agreement and RFP-MRGASSUPPUERS-01 (ill) Whore -pie 2.8. "Contract Price" shall mean the amount expressed in U.S. Dollars par MMBtu to be paid by Buyer to Seller for the purchase of Gas as agreed to by the parties in a transaction. 2.9. "Contract Quantity' shall mean the quantity of Gas to be delivered and taken as agreed to by the parties in a transaction. 2.10. "Cover Standard", as referred to in Section 3.2, shag mean that if there is an unexcused failure to take or deliver any quantity of Gas pursuant to this Contract, then the performing party shag use commercially reasonable efforts to (i) if Buyer is the performing party, obtain Gas, (or an altemate fuel if elected by Buyer and replacement Gas is not available), or (ii) if Seller is the performing party, sell Gas, in either case, at a price reasonable for the delivery or production area, as applicable, consistent with: the amount of notice provided by the nonperforming party; the immediacy of the Buyer's Gas consumption needs or Seller's Gas sales requirements, as applicable; the quantities involved; and the anticipated length of failure by the nonperforming parry. 2.11. "Credit Support Obligation(s)" shall mean any obligatfon(s) to provide or establish credit support for, or on behalf of, a parry to this Contract such as an irrevocable standby letter of Credit, a margin agreement, a prepayment, a security interest in an asset, a performance bond, guaranty, or other good and sufficient security of a continuing nature. 2.12. "Day' shall mean a period of 24 consecutive hours, coextensive with a 'day" as defined by the Receiving Transporter in a particular transaction. 2.13. "Delivery Period" shall be the period during which deliveries are to be made as agreed to by the parties in a transaction. 2.14. "Delivery Point(sy' shag mean such point(s) as are agreed to by the parties in a transaction. 2.15. "EDI" shag mean an electronic data interchange pursuant to an agreement entered into by the parties, specifically relating to the communication of Transaction Confirmations under this Contract 2.16. "EFP" shall mean the purchase, sale or exchange of natural Gas as the "physical" side of an exchange for physical transaction involving gas futures contracts. EFP shall incorporate the meaning and remedies of "Finn", provided that a party's excuse for nonperformance of its obligations to deliver or receive Gas will be governed by the rules of the relevant futures exchange regulated under the Commodity Exchange Act. 2.17. "Firm" shall mean that either party may interrupt its performance without liability only to the extent that such performance is prevented for reasons of Force Majeure; provided, however, that during Force Majeure interruptions, the party invoking Force Majeure may be responsible for any Imbalance Charges as set forth in Section 4.3 related to its interruption after the nomination is made to the Transporter and until the change in deliveries and/or receipts is confirmed by the Transporter. 2.18. "Gas" shag mean any mixture of hydrocarbons and noncombustible gases in a gaseous state consisting primarily of methane. 2.19. "Imbalance Charges" shall mean any fees, penalties, costs or charges (in cash or in kind) assessed by a Transporter for failure to satisfy the Transporters balance and/or nomination requirements. 2.20. "Interruptible" shall mean that either party may interrupt its performance at any time for any reason, whether or not caused by an event of Force Ma)eure, with no liability, except such interrupting party may be responsible for any Imbalance Charges as set forth in Section 4.3 related to its interruption after the nomination is made to the Transporter and until the change in deliveries and/or receipts is confirmed by Transporter. 2.21. "MMBtu" shall mean one million British thermal units, which is equivalent to one dekatherm. 2.22. "Month" shall mean the period beginning on the first Day of the calendar month and ending immediately prior to the commencement of the first Day of the next calendar month. 2.23. "Payment Date" shall mean a date, as indicated on the Base Contract, on or before which payment is due Seller for Gas received by Buyer in the previous Month. 2.24. "Receiving Transporter' shall mean the Transporter receiving Gas at a Delivery Point, or absent such receiving Transporter, the Transporter delivering Gas at a Delivery Point. 2.25. "Scheduled Gas" shall mean the quantity of Gas confirmed by Transporter(s) for movement, transportation or management Copyright C 2002 North American Energy Standards Board, Inc. NAESB Standard 6.3.1 All Rights Reserved Page 3 of 10 April 19, 2002 2.26. "Spot Price " as referred to in Section 3.2 shall mean the price fisted in the publication indicated on the Base Contract, under the listing applicable to the geographic location closest in proximity, to the Delivery Point(s) for the relevant Day; provided, if there is no single price published for such location for such Day, but there is published a range of prices, then the Spot Price shall be the average of such high and low prices. If no price or range of prices is published for such Day, then the Spot Price shall be the average of the following: (I) the price (determined as stated above) for the first Day for which a price or range of prices is published that next precedes the relevant Day; and (g) the price (determined as stated above) for the first Day for which a price or range of prices is published that next follows the relevant Day. 2.27. "Transaction Confirmation" shall mean a documem, similar to the form of Exhibit A, setting forth the terms of a transaction formed pursuant to Section 1 for a particular Delivery Period. - 2.28. "Termination Option' shall mean the option of either party to terminate a transaction in the event that the other party fails to perform a Firm obligation to deliver Gas Fit the case of Seller or to receive Gas in the case of Buyer for a designated number of days during a period as specified on the applicable Transaction Confirmation. 2.29. 'Transporter(s)" shag mean all Gas gathering or pipeline canpanies, or local distribution companies, acting in the capacity of a transporter, transporting Gas for Seller or Buyer upstream or downstream, respectively, of the Delivery Point pursuant to a particular transaction. SECTION 3. PERFORMANCE OBLIGATION 3.1. Seller agrees to set and deliver, and Buyer agrees to receive and purchase, the Contract Quantity for a particular transaction in accordance with the lams of the Contract Sales and purchases will be on a Firm or Interruptible basis, as agreed to by the parties in a The parties have selected either the "Cover Standard" or the "Spot Price Standard" as Indicated on the Base Contract. Cover Standard: 3.2. The sole and exclusive remedy of the parties in the event of a breach of a Finn obligation to deliver or receive Gas shall be recovery of the following: Co in the event of a breach by Seller on any Day(s), payment by Seller to Buyer in an amount equal to the positive difference, if any, between the purchase price paid by Buyer utilizing the Cover Standard and the Contract Price, adjusted for commercially reasonable differences in transportation costs to or from the Delivery Point(s), multiplied by the difference between the Contract Quantity and the quantity actually delivered by Seller for such Day(s): or (ti) in the event of a breach by Buyer on any Day(s), payment by Buyer to Seller in the amount equal to the positive difference, if any, between the Contract Price and the price received by Seller utilizing the Cover Standard for the resale of such Gas, adjusted for commercially reasonable differences in transportation costs to or from the Delivery Point(s), multiplied by the difference bet'aeen the Contract Quantity and the quantity actually taken by Buyer for such Day(s); or (fit) in the event that Buyer has used commercially reasonable efforts to replace the Gas or Seller has used commercially reasonable efforts to sell the Gas to a third parry, and no such replacement or sale is available, then the sole and exclusive remedy of the performing party shag be any unfavorable difference between the Contract Price and the Spot Price, adjusted for such transportation to the applicable Delivery Point, multiplied by the difference between the Contract Quantity and the quantity actually delivered by Seller and received by Buyer for such Day(s). Imbalance Charges shall not be recovered under this Section 3.2, but Seller and/or Buyer shall be responsible for Imbalance Charges, if any, as provided in Section 4.3. The amount of such unfavorable difference shall be payable five Business Days after presentation of the performing parry's invoice, which shall set forth the basis upon which such amount was calculated. Spot Price Standard: 3.2. The sole and exclusive remedy of the parties in the event of a breach of a Firm obligation to deliver or receive Gas shall be recovery of the following: (I) in the event of a breach by Seller on any Day(s), payment by Seller to Buyer in an amount equal to the difference between the Contract Quantity and the actual quantity delivered by Seller and received by Buyer for such Day(s), multiplied by the positive difference, if any, obtained by subtracting the Contract Price from the Spot Price; or (ii) in the event of a breach by Buyer on any Day(s), payment by Buyer to Seller in an amount equal to the difference between the Contract Quantity and the actual quantity delivered by Seller and received by Buyer for such Day(s), multiplied by the positive difference, if any, obtained by subtracting the applicable Spot Price from the Contract Price. Imbalance Charges shall not be recovered under this Section 3.2, but Seller and/or Buyer shall be responsible for Imbalance Charges, if any, as provided in Section 4.3. The amount of such unfavorable difference shall be payable five Business Days after presentation of the performing parry's invoice, which shall set forth the basis upon which such amount was calculated. 3.3. Notwithstanding Section 3.2, the parties may agree to Alternative Damages in a Transaction Confirmation executed in writing by both parties in accordance with Fiscal Rules. 3.4. In addition to Sections 3.2 and 3.3, the parties may provide for a Termination Option in a Transaction Confirmation executed in writing by both parties. The Transaction Confirmation containing the Termination Option will designate the length of nonperformance triggering the Termination Option and the procedures for exercise thereof, how damages for nonperformance will be compensated, and how liquidation costs will be calculated. SECTION 4. TRANSPORTATION, NOMINATIONS, AND IMBALANCES 4.1. Seller shall have the sole responsibility for transporting the Gas to the Delivery Point(s). Buyer shall have the sole responsibility for transporting the Gas from the Delivery Point(s). 4.2. The parties shall coordinate their nomination activities, giving sufficient time to meet the deadlines of the affected Transporter(s). Each party shall give the other party timely prior Notice, sufficient to meet the requirements of all Transporter(s) involved in the transaction, of ate Copyright ® 2002 North American Energy Standards Board. Inc. NAESB Standard 6.3.1 All Rights Reserved Page 4 of 10 April 19, 2002 quantities of Gas to be delivered and purchased each Day. Should either party become aware that actual deliveries at the Delivery Poings) are greater or lesser than the Scheduled Gas, such party shall promptly notify the other party. 4.3. The parties shall use commercially reasonable efforts to avoid imposition of any Imbalance Charges. If Buyer or Seller receives an invoice from a Transporter that includes Imbalance Charges, the parties shag determine the validity as well as the cause of such Imbalance ChargesIf the Imbalance Charges were incurred as a result of Buyers receipt of quantities of Gas greater tenor less than the Scheduled Gas, than Buyer shall pay for such Imbalance Charges or reimburse Seller for such Imbalance Charges paid by Seller. If t he hnbalance Charges were incurred as a result of Sellers delivery of quantities of Gas greater than or less than the Scheduled Gas, then Seller shag pay for such Imbalance Charges or reimburse Buyer for such Imbalance Charges paid by Buyer. SECTION 5. QUALITY AND MEASUREMENT Al Gas delivered by Seller shall meet this pressme, quality and heat content requirements of the Receiving Transporter. The unit of quantity measurement for purposes of this Contract shall be one MMBtu dry. Measurement of Gas quantities hereunder shal be in accordance with the established procedures of the Receiving Transporter. SECTION 6. TAxEs The parties have selected alther "Buyer Pays At and After Delivery Point" or "Seller Pays Before and At Delivery PoInt" as Indicated on the Base Contract Buyer Pays At and After Delivery Point: Seller shag pay or cause to be paid all taxes, fees, levies, penalties, licenses or charges imposed by any government authority ("Taxes) on or with respect to the Gas prior to the Delivery Point(s). Buyer shall pay or cause to be paid all Taxes on or with respect to the Gas at the Delivery Points) and all Taxes after the Delivery Point(s). If a parry is required to remit or pay Taxes that are the other partes responsibility hereunder, the party responsible for such Taxes shall promptly reimburse the other party for such Taxes. Any party entitled to an exemption from any such Taxes or charges shall furnish the other party any necessary documentation thereof. Seller Pave Before and At Delivery Point PREFERRED BY STATE OF C LORADO Seller shall pay or muse to be paid all taxes, fees, levies, penalties, licenses or charges imposed by any government authority ("Taxes") on or with respect to the Gas prior to the Delivery Points) and all Taxes at the Delivery Points). Buyer shall pay or cause to be paid all Taxes on or with respect to the Gas after the Delivery Points). If a party is required to remit or pay Taxes that are the other parry's responsibility hereunder, the party responsible for such Taxes shall promptly reimburse the other party for such Taxes. Any party entitled to an exemption from any such Taxes or charges shall furnish the other party any necessary documentation thereof. SECTION 7. BILLING, PAYMENT, AND AUDIT 7.1. Seller shall invoice Buyer for Gas delivered and received in the preceding Month and for any other applicable charges, providing supporting documentation acceptable in industry practice to support the amount charged. If the actual quantity delvered is not known by the billing date, billing will be prepared based on the quantity of Scheduled Gas. The invoiced quantity will teen be adjusted to the actual quantity on the following Months billing or as soon thereafter as actual delivery information is available. 7.2. Buyer shall remit the amount due under Section 7.1 in the manner specified in tee Base Contract, in immediately available funds, on or before the later of the Payment Date or 40 gQ Days after receipt of the invoice by Buyer, provided that if pre Payment Date is not a Business Day, payment is due on the next Business Day fdknving that date. In the event any payments are due Buyer hereunder, payment to Buyer shall be made in accordance with this Section 7.2. 7.3. In the event payments become due pursuant to Sections 3.2 or 3.3. the performing party may submit an invoice to the nonperforming parry for an accelerated payment setting forth the basis upon which the invoiced amount was calculated. Payment from the nonperforming party will be due five ;00 Business Days after receipt of invoice. 7.4. If the invoiced party, in good faith, disputes the amount of any such invoice or any part thereof, such invoiced party will pay such amount as it concedes to be correct; provided, however, if the Invoiced party disputes the amount due, it must provide suppoding documentation acceptable in industry practice to support the amount paid or disputed In the event tee parties are unable to resolve such dispute, either party may pursue any remedy available at law or in equity to enforce is rights pursuant to this Section. 7.5. If the invoiced party fails to remit the full amount payable when due, interest on the unpaid portion shell accrue from the date due until the date of payment at a rate equal to the lower of (q the then -effective prime rate of interest published urder'Money Rates" by The Wall Street Journal, plus two percent per annum; or (i) the maxemurn applicable lawful interest rate. 7.6. A parry shall have the right, at is own expense, upon reasonable Notice and at reasonable tines, to examine and audit and to obtain copies of the relevant portion of the books, records, and telephone recordings of the other party only to the extent reasonably necessary to verify, the accuracy of any statement, charge, payment, or computation made under the Contract. This right to examine, audit and to obtain copies shag not be available with respect to proprietary information not directly relevant to transactions under this Contract. All irvoioes and billings shall be conclusively presumed final and accurate and all associated claims for under- or overpayments shag be deemed waived unless such irvoices or billings are objected to in writing, with adequate explanation and/or documentation, wihn two years after the Month of Gas delivery. All retroactive adjustments under Section 7 shall be paid in full by the party owing payment within 30 Days of Notice and substantiation of such inaccuracy. 7.7. Unless the parties hove elected on the Base Contract not to make this Section 7.7 applicable to this Contract the parties shall riot all undisputed amounts due and owing, and/or past due, arising under the Contract such that the party owing the greater amount shall make a single payment of the net amount to the other party in accordance with Section 7; provided that no payment required to be made pursuant to the terms of any Credit Support Obligation or pursuant to Section 7.3 shall be subject to netting under this Section If Copyright O 2002 North American Energy Standards Board, Inc. NAESB Standard 6.3.1 AN Rights Reserved Page 5 of 10 April 19. 2002 the parties have executed a separate netting agreement, the terns and conditions therein shall prevail to the extent Inconsistent herewith. SECTION 8. TITLE, WARRANTY, AND INDEMNITY 8.1. Unless otherwise specifically agreed, title to the Gas shall pass from Seller to Buyer at the Delivery Point(s). Seller shall have responsibility for and assume any liability with respect to the Gas prior to its delivery to Buyer at the specified Delivery Point(s). Buyer shall have responsibility for and any liability with respect to said Gas after its delivery to Buyer at the Delivery Point(s). 8.2. Seller warrants that it will have the right to convey and will transfer good and merchantable title to all Gas sold hereunder and delivered by it to Buyer, free and dear of all liens, encumbrances, and claims. EXCEPT AS PROVIDED IN THIS SECTION 82 AND IN SECTION 14.8. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE, ARE DISCLAIMED. 8.3. Seller agrees to indemnify Buyer and save it harmless from all losses, liabilities or claims including reasonable attorneys' fees and costs of court ("Claims"), from any and all persons, arising from or out of claims of title, personal injury or property damage from said Gas or other charges thereon which attach before title passes to Buyer. 8.4. Notwithstanding the other provisions of this Section 8, as between Seller and Buyer, Seller will be liable for all Claims to the extent that such arise from the failure of Gas delivered by Seller to meet it* quality requirements of Section 5. SECTION 9. NOTICES 9.1. All Transaction Confirmations, invoices, payments and other communications made pursuant to the Base Contract ("Notices") shall be made to the addresses specified in writing by the respective parties from time to time. 9.2. All Notices required hereunder may be sent by facsimile , a nationally recognized overnight courier service, first class mail or hand delivered. 9.3. Notice shall be given when received on a Business Day by the addressee. In the absence of proof of the actual receipt date, the following presumptions will apply. Notices sent by facsimile shall be deemed to have been received upon the sending partys receipt of its facsimile machine's confirmation of successful transmission. If the day on which such facsimile is received is not a Business Day or is after five p.m. on a Business Day, then such facsimile shall be deemed to have been received on the next following Business Day. Notice by overnight mail or courier shall be deemed to have been received on the next Business Day after it was sent or such earlier time as is confirmed by the receiving party. Notice via first class mail shall be considered delivered five Business Days after mailing. SECTION 10. FINANCIAL RESPONSIBILITY 10.1. If eititer-pally the Sane (W) has reasonable grounds for insecurity regarding the performance of any obligation under this Contract (whether or riot then due) by the other parry ("Y") (including, without limitation, the occurrence of a material change in the creditworthiness of Y), X may demand Adequate Assurance of Performance. "Adequate Assurance of Performance' shall mean sufficient security in the form, amount and for the term reasonably acceptable to X, including, but not limited to, a standby irrevocable letter of credit, a prepayment, a security interest in an asset or a performance bond or guaranty (including the issuer of any such security). 10.2. In the event (each an "Event of Default") either party (the "Defaulting Party") or its guarantor shall: (i) make an assignment or any general arrangement for the benefit of creditors; (ii) file a petition or otherwise commence, authorize, or acquiesce in the commencement of a proceeding or case under any bankruptcy or similar law for the protection of creditors or have such petition filed or proceeding commenced against it; (ill) otherwise become bankrupt or insolvent (however evidenced); (iv) be unable to pay its debts as they fall due; (v) have a receiver, provisional liquidator, conservator, custodian, trustee or other similar official appointed with respect to it or substantially all of its assets; (vi) fail to perform any obligation to the other parry with respect to any Credit Support Obligations relating to the Contract; (vii) fail to give Adequate Assurance of Performance under Section 10.1 within 48 hours but at least one Business Day of a written request by the other party; or (viii) not have paid any amount due the other party hereunder on or before the second Business Day following written Notice that such payment is due; then the other party (the "Non -Defaulting Party") shall have the right, at its sole election, to immediately withhold and/or suspend deliveries or payments upon Notice and/or to terminate and liquidate the transactions under the Contract, in the manner provided in Section 10.3, in addition to any and all other remedies available hereunder. 10.3. If an Event of Default has occurred and is continuing, the Non -Defaulting Party shall have the right, by Notice to the Defaulting Party, to designate a Day, no earlier than the Day such Notice is given and no later than 20 Days after such Notice is given, as an early termination date (the'Eady Termination Date") for the liquidation and termination pursuant to Section 10.3.1 of all transactions under the Contract, each a "Terminated Transaction'. On the Early Termination Date, all transactions will terminate, other than those transactions, if any, that may not be liquidated and terminated under applicable law or that are, in the reasonable opinion of the Non - Defaulting Party, commercially impracticable to liquidate and terminate ("Excluded Transactions"), which Excluded Transactions must be liquidated and terminated as soon thereafter as is reasonably practicable, and upon termination shall be a Terminated Transaction and be valued consistent with Section 10.3.1 below. With respect to each Excluded Transaction, its actual termination date shall be the Early Termination Date for purposes of Section 10.3.1. Copyright O 2002 North American Energy Standards Board, Inc. NAESB Standard 6.3.1 All Rights Reserved Page 6 of 10 April 19, 20D2 The parties have selected either "Early Termination Damages Apply" or "Early Termination Damages Do Not Apply" as Indicated on the Bass Contract Early Termination Damages Apply: 10.3.1. As of the Early Termination Date, the Non-Defauhing Party shall determine, in good faith and in a commercially reasonable manner, (i) the amount owed (whether or not then due) by each party with respect to all Gas delivered and received between the parties under Terminated Transactions and Excluded Transactions on and before the Early Termination Date and all other applicable charges relating to such deliveries and receipts (including without limitation any amounts owed under Section 3.2), for which payment has not yet been made by the party that owes such payment under this Contract and (ii) the Market Value, as defined below, of each Terminated Transaction. The Non -Defaulting Party shall (x) liquidate and accelerate each Terminated Transaction at its Market Value, so that each amount equal to the difference between such Market Value and the Contract Value, as defined below, of such Terminated Trensactlon(s) shall be due to the Buyer under the Terminated Transaction(s) if such Market Value exceeds the Contract Value and to the Seller if the opposite is the case; and (y) where appropriate, discount each amount then due under clause (x) above to present value in a commercially reasonable manner as of the Early Termination Date (to take account of the period between the date of liquidation and the date on which such amount would have otherwise been due pursuant to the relevant Terminated Transactions). For purposes of this Section 10.3.1, "Contract Value" means the amount of Gas remaining to be delivered or purchased under a transaction multiplied by the Contract Price, and "Market Value" means the amount of Gas remaining to be delivered or purchased under a transaction multiplied by the market price for a similar transaction at the Delivery Point determined by the Non -Defaulting Party in a commercially reasonable manner. To ascertain the Market Value, the Non -Defaulting Party may consider, among other valuations, any or all of the settlement prices of NYMEX Gas futures contracts, quotations from leading dealers in energy swap contracts or physical gas trading markets, similar sales or purchases and any other bona fide third -party offers, all adjusted for the length of the term and differences in transportation costs. A party shall not be required to enter into a replacement transaction(s) in order to determine the Market Value. Any extension(s) of the term of a transaction to which parties are not bound as of the Early Termination Date (including but not limited to "evergreen provisions') shall not be considered in determining Contract Values and Market Values. For the avoidance of doubt, any option pursuant to which one party has the right to extend the term of a transaction shall be considered in determining Contract Values and Market Values. The rate of interest used in calculating not present value shall be determined by the Non -Defaulting Party in a commercially reasonable manner. Early Termination Damages Do Not Apply: 10.3.1. As of the Early Termination Date, the Non -Defaulting Party shall determine, in good faith and in a commercially reasonable manner, the amount owed (whether or not then due) by each parry with respect to all Gas delivered and received between the parties under Terminated Transactions and Excluded Transactions on and before the Early Termination Date and all other applicable charges relating to such deliveries and receipts (including without limitation any amounts owed under Section 3.2), for which payment has not yet been made by the party that owes such payment under this Contract. The parties have selected either "Other Agreement Setoffs Apply" or "Other Agreement Setoffs Do Not Apply" as Indicated on the Base Contract Other Agreement Setoffs Apply: 10.3.2. The Non -Defaulting Party shall net or aggregate, as appropriate, any and all amounts owing between the parties under Section 10.3.1, so that all such amounts are netted or aggregated to a single liquidated amount payable by one party to the other (the "Net Settlement Amount). At its sole option and without prior Notice to the Defaulting Party, the Non -Defaulting Party may setoff (i) any Net Settlement Amount owed to the Non -Defaulting Party against any margin or other collateral held by it in connection with any Credit Support Obligation relating to the Contract; or (ii) any Net Settlement Amount payable to the Defaulting Party against any amount(s) payable by the Defaulting Party to the Non -Defaulting Party under any other agreement or arrangement between the parties. Other Agreement Setoffs Do Not Apply: 10.3.2. The Non -Defaulting Party shall net or aggregate, as appropriate, any and all amounts owing between the parties under Section 10.3.1, so that all such amounts are netted or aggregated to a single liquidated amount payable by one party to the other (me 'Net Settlement Amount). At its sole option and without prior Notice to the Defaulting Party, the Non -Defaulting Party may setoff any Net Settlement Amount owed to the Non -Defaulting Party against any margin or other collateral held by it in connection with any Credit Support Obligation relating to the Contract. 10.3.3. If any obligation that is to be included in any netting, aggregation or setoff pursuant to Section 10.3.2 is unascertained, the Non -Defaulting Parry may in good faith estimate that obligation and net, aggregate or setoff, as applicable, in respect of the estimate, subject to the Non -Defaulting Party accounting to the Defaulting Party when the obligation is ascertained. Any amount not then due which is included in any netting, aggregation or setoff pursuant to Section 10.3.2 shall be discounted to net present value in a commercially reasonable manner determined by the Non -Defaulting Party. 10.4. As soon as practicable after a liquidation, Notice shall be given by the Non -Defaulting Party to the Defaulting Party of the Net Settlement Amount, and whether the Net Settlement Amount is due to or due from the Non -Defaulting Party. The Notice shall include a written statement explaining in reasonable detail the calculation of such amount, provided that failure to give such Notice shall not affect the validity or enforceability of the liquidation or give rise to any claim by the Defaulting Party against the Non -Defaulting Party. The Net Settlement Amount shall be paid by the close at bus 11868 OR the 689811d BwsiRess Day within 30 days following such Notice, which date shall not be earlier than the Early Termination Date. Interest on any unpaid potion of the Net Settlement Amount shall accrue from the Copyright ® 2002 North American Energy Standards Board, Inc. NAESB Standard 6.3.1 All Rights Reserved Page 7 of 10 April 19, 2002 data due unto the date of payment at a rate equal to the lower of (i) the thenaRective prime rate of interest published under "Morley Rales" by The Wall StreetJoumal, plus two percent per annum; or (0) the maximum applicable lawful interest rate. 10.5. The parties agree that the transactions hereunder constitute a "forward contract" within the meaning of the United States Bankruptcy Code and that Buyer and Seller are each "forward contract merchants" within Ibe meaning of the United States Bankruptcy Code. 10.6. The Non -Defaulting Party's remedies under this Section 10 are the sole and exclusive remedies of the Non -Defaulting Party with respect to the occurrence of any Early Termination Date. Each party reserves to itself all other rights, setoffs, counterclaims and other defenses that it is or may be entitled to arising from the Contract 10.7. With respect to this Section 10, if the parties have executed a separate netting agreement with close-out netting provisions, the terms and conditions therein shall prevail to the extent inconsistent herewith. SECTION 11. FORCE MAJEURE 11.1. Except with regard to a party's obligation to make paymerit(s) due under Section 7, Section 10.4, and Imbalance Charges under Section 4, neither party shal be liable to the other for failure to perform a Firm obligation, to the extent such failure was caused by Force Majeure. The term "Force Majeure" as employed herein means any cause not reasonably within the control of the parry claiming suspension, as further defined in Section 11.2. 11.2. Force Majeure shall include, but not be limited to, the following: (1) physical events such as acts of God, landslides, lightning, earthquakes, fires, storms or storm warnings, such as hurricanes, which result in evacuation of the affected area, floods, washouts, explosions, breakage or accident or necessity of repairs to machinery or equipment or liras of pipe; (ii) weather related events affecting an entire geographic region, such as low temperatures which cause freezing or failure of wells or Ones of pipe; (III) interruption and/or curtailment of Firm transportation and/or storage by Transporters; IN) acts of others such as strikes, lockouts or other industrial disturbances, riots, sabotage, insurrections or wars; and (v) governmental actions such as necessity for compliance with any court order, law, statute, ordinance, regulation, or policy having the effect of law promulgated by a governmental authority having jurisdiction. Seller and Buyer shall make reasonable efforts to avoid the adverse impacts of a Force Majeure and to resolve the event or occurrence ones it has occurred in order to resume performance. 11.3. Neither party shall be entitled to the benefit of the provisions of Force Majeure to the extent performance is affected by any or all of the following circumstances: (i) the curtailment of interruptible or secondary Firm transportation unless primary, in -path, Firm transportation Is also curtailed; (ii) the party claiming excuse failed to remedy the condition and to resume the performance of such covenants or obligations with reasonable dispatch; or (iii) economic hardship, to include, without limitation, Seller's ability to sell Gas at a higher or more advantageous price than the Contract Price, Buyer's ability to purchase Gas at a lower or more advantageous price than the Contract Price, or a regulatory agency disallowing, in whole or in part, the pass through of costs resulting from this Agreement (iv) the loss of Buyer's market(s) or Buyer's inability to use or resell Gas purchased hereunder, except, in either case, as provided in Section 11.2; or (v) the loss or failure of Seller's gas supply or depletion of reserves, except, in either case, as provided in Section 11.2. The party claming Force Majeure shall not be excused from its responsibility for Imbalance Charges. 11.4. Notwithstanding anything to the contrary herein, the parties agree that the settlement of strikes, lockouts or other industrial disturbances shall be within the sole discretion of the party experiencing such disturbance. 11.5- The party whose performance is prevented by Force Majeure must provide Notice to the other party. Initial Notice may be given orally; however, written Notice with reasonably full particulars of the event or occurrence Is required as soon as reasonably possible. Upon providing written Notice of Force Majeure to the other party, the affected party will be relieved of its obligation, from the onset of the Force Majeure event, to make or accept delivery of Gas, as applicable, to the extent and for the duration of Force Majeure, and neither parry shall be deemed to have faded in such obligations to the other during such occurrence or event. 11.6. Notwithstanding Sections 11.2 and 11.3. the parties may agree to alternative Force Majeure provisions in a Transaction Confirmation executed in writing by both parties. SECTION 12. TERM This Contract may be terminated on 30 Day's written Notice, but shall remain in effect until g1e expiration of the latest Delivery Period of any trarsaction(s). The rights of either party pursuant to Section 7.6 and Section 10, the obligations to make payment hereunder, and the obligation of eApeFflaAy the Contractor to indemnify the ether State, pursuant hereto shall survive the termination of the Base Contractor any transaction. SECTION 13. LIMITATIONS FOR BREACH OF ANY PROVISION FOR VMICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY. A PARTY'S UABILRY HEREUNDER SHALL BE LIMITED ASSET FORTH IN SUCH PROVISION, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN OR IN A TRANSACTION, A PARTY'S LIABILITY SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES GO! EXCEPT FOR PERSONAL INJURY INCLUDING DEATH AND DAMAGES TO TANGIBLE PROPERTY. SUCH DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WANED EXCEPT FOR PERSONAL INJURY INCLUDING DEATH AND DAMAGES TO TANGIBLE PROPERTY. UNLESS EXPRESSLY HEREIN PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE Copyright 0 2002 North American Energy Standards Board, Inc. NAESB Standard 6.3.1 All Rights Reserved Page 8 of 10 April 19, 2002 INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE 1MTHOLrT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERVNSE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS. SECTION 14. MISCELLANEOUS 14.1. This Contract shall be binding upon and inure to the benefit of the successors, assigns, personal representatives, and heirs of the respective parties hereto, and the covenants, conditions, rights and obligations of this Contract shall run for the full tern of this ContracL No assignment of this Contract in whole or in pad, will be made without the prior mitten cOrhsert of the nom assigning party (and shall not tells" the assigning party from liability hereunder), which consent will not be unreasonably withheld or delayed; provided, either party may (i) transfer, sell, pledge, encumber, or assign this Contract or the accounts, revenues, or proceeds hereof in connection with any financing or other financial arrangements, or (ii) transfer its interest to any parent or affiliate by assignment, merger or otherwise without the prior approval of the other party. Upon any such assignment transfer and assumption, the transferor shall remain principally Gable for and shall not be relieved of or discharged from any obligations hereunder. 14.2. If any provision in this Contract is determined to be invalid, void or Unenforceable by any court having jurisdiction, such determination shall not invalidate, void, or make unenforceable any other provision, agreement or covenant of this Contract 14.3_ No waiver of any breach of this Contract shall be hell to be a waiver of any other or subsequent breach. 14.4. This Contract sets forth all understandings between the parties respecting each transaction subject hereto, and any prior contracts, understandings and representations, whether oral or written, relating to such transactions are merged into and superseded by this Contract and any effective transaction(s). This Contract may be amended only by a writing executed by both parties. 14.5. The interpretation and performance of this Contract shall be governed by the laws of the jurisdiction as indicated on the Base Contract, excluding, however, any conflict of laws rule which would apply the law of anotherjuisdiction. 14.6. This Contract and all provisions herein will be subject to all applicable and valid statutes, rules, orders and regulations of any governmental authority having jurisdiction over the parties, their facilities, or Gas supply, this Contract or transaction or any provisions thereof. 14.7. There is no third party beneficiary to this Contract 14.8. Each party to this Contract represents and warrants that it has full and complete authority to enter into and perform this Contract Each person who executes this Contract on behalf of either party represents and warrants that it has full and complete authority to do so and that such party will be bound thereby. 14.9. The headings and subheadings contained in this Contract are used solely for convenience and do not corstri a part of this Contract between the parties and shall not be used to construe or interpret the provisions of this Contract. 14.10. Unless the panties have elected on the Base Contract not to make this Section 14.10 applicable to this Contract, neither parry shall disclose directly or indirectly without the prior mitten consent of the other party the temps of any transaction to a third party (other than the employees, lenders, royally owners, counsel, accountants and other agents of the party, or prospective purchasers of all or substantially all of a parVs assets or of any rights under this Contract provided such persons shall have agreed to keep such farms confidential) except (i) in order to comply with any applicable law, order, regulation, or exchange rule, (it) to the extent necessary for the enforcement of this Contract. (0) to the extent necessary to implement any transaction, or tiv) to the extent such information is delivered to such third party for the sale purpose of calculating a published index. Each party shall notify the other party of any proceeding of which it is aware which may result in disclosure of the terns of any transaction (other than as permitted hereunder) and use reasonable efforts to prevent or limit the disclosure. The existence of this Contract is not subject to this confidentiality obligation. Subject to Section 13, the parties shall be embed to all remedies available at law a in equity to enforce, or seek relief in connection with this confidentiality, obligation. The terms of any transaction hereunder, except as required by law, shall be kept confidential by the parties hereto for one year from the expiration of the transaction. In the event that disclosure is required by a governmental body or applicable law, the party subject to such requirement may disdose the material ferns of this Contract to the extent so required, but shall promptly notify the other party, prior to disclosure, and shad cooperate (consistent with the disclosing party's legal obligations) with the other parties efforts to obtain protective orders or similar restrains with respect to such disclosure at the expense of the other parry. 14.11 The parties may agree to dispute resolution procedures in Special Provisions attached to the Base Contract or in a Transaction Confirmation executed in writing by both parties. DISCLAIMER: The puposes of this Contract are to facilate trade, avid musurderstandings and make m one defirik the kris of contracts of pudhase and sale of nattxal gas. Fuder, NAESB da not mandatene a of f is Conrad by any party. NAESB DISCLAIMS AND EXCLUDES, AND ANY USER OF THIS CONTRACT ACKNOWLEDGES AND AGREES TO NAESB'S DISCLAIMER OF, ANY AND ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS, it "ESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THIS CONTRACT OR ANY PART THEREOF, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONaNFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE (WHETHER OR NOT NAESS KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE H FACT AWARE OF ANY SUCH PUFtPOSEh WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. EACH USER OF THIS CONTRACT ALSO AGREES THAT UNDER NO CIRCUMSTANCES WILL NAESB BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, Copyright m 2002 North American Energy Standards Board, Inc NAESB Standard 5.3.1 w. ognrs neservao page 9 of 10 Apnl 19, 2002 Exhibit A to State of Colorado RFP-MR-GAS-SUPPLIERS-03 TRANSACTION CONFIRMATION FOR IMMEDIATE DELIVERY Letterhead/Logo Date: Transaction Confirmation it: This Transaction Confirmation is subject to the Base Contract between Seller and Buyer dated . The terms of this Transaction Confirmation are binding unless disputed in writing within 2 Business Days of receipt unless otherwise specified in the Base Contract. SELLER: Phone: Fax: Base Contract No. Transporter: Transporter Contract Number. BUYER: City of Fort Collins PO Box 580 Fort Collins. Colorado 80521 Attn: James B. O'Neill II Phone: (970)221-6775 Fax: (970)221-6707 Base Contract No. Transporter: Transporter Contract Number. i Contract Price: $___JMMBtu or 1 n DeliveryPeriod: Begin: End: Performance Obligation and Contract Quantity: (Select One) Firm (Fixed Quantity): Firm (Variable Quantity): MMBtus/Month (Sea Special Conditions) MMBtus/day Minimum MMBtus/day Maximum subject to Section 4.2. at election of I Buyer or?: Seller Interruptible: Up to _ MMBIus/day Delivery Point(s): Public Service Comoanv of Colorado (PSCo) Citvcate I ((( a pooling point is used, fist a specific geographic and pipeline location): If Special Conditions: I t. Buyer and Seller must have a fully executed North American Energy Standards Board (NAESB) Base Contract, as adjusted by the State of Colorado. in place prior to the executlon of any purchaselsale transactfon(s). 2. Seller must be an approved Stale of Colorado Vendor for natural gas supply 3. If applicable. Buyer may *trigger' the NYMEX price for any or all forward -month NYMEX contracts and for any forward quantities up to Me maximum contract quantity anytime prior to 11:00 am ET on the date of expiration of the prompt month natural gas NYMEX contract. If the Buyer fails to trigger the NYMEX price, then the NYMEX price shall be the settlement price for the expired month natural gas NYMEX contract. 4. Buyer shall designate Sella as its Nominating Agent for PSCo. As such, Seller shall be deemed responsible for any and all balancing charges (Cashout Penalties). Operational Flow Order penalties, and other charges resulting from Sellers failure to effectively manage Buyer's PSCo Transportation Contracts so as to avoid such penalties andlor charges 5. Volume requirements in excess of the Monthly Baseload Volumes In this Transaction Confirmation (Swing Purchases) shall be purchased by Buyer al a price equal to the "Gas Daily" Colorado Interstate (CIG) Daily Midpoint plus a pre -determined adder. 6. Volume requirements deficient of the Monthly Baseload Volumes in this Transaction Confirmation (Liquidated Volumes) shall be purchased back by Seller at a price equal to the 'Gas Daily' CIG Daily Midpoint plus a pre -determined adder (Liquidation Price). The price difference between the Contract Price and the Liquidation Price shall be either debited or credited to Buyer accordingly. 7. Seller hereby agrees to schedule the daily dth average of the corresponding MontMy Baseload Volume for the Delivery Month. Such daily scheduled quantities may be subject to minimal scheduling changes for rounding purposes at either the beginning of the month or near the end of the month (Daffy Scheduled Volumes) in order to schedule the Monthly Baseload Volume. B. The Daily Scheduled Volumes shall be invoiced at the appropriate Contract Price on a daily basis.