R2012-194 AUTHORIZING EXECUTION OF A SERVICE AGREEMENT WITH THE LOWEST RESPONSIBLE BIDDER FOR THE SUPPLY OF ELECTRICITY

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pursuant to Sections 3.3 or Article 7 of this Agreement. FES does not take responsibility for any delivery of services supplied by the Electric Utility or RTO, or for the consequences of the failure to provide such services. FES shall not be responsible to Participating Customer in the event the Electric Utility or RTO disconnects, suspends, curtails or reduces service to Participating Customer (notwithstanding whether such disconnection is directed by the ISO) in order to facilitate construction, installation, maintenance, repair, replacement or inspection of any of the Electric Utility's facilities, or to maintain the safety and reliability of the Electric Utility's electrical system, or due to emergencies, forced outages, potential overloading of the Electric Utility's transmission and/or distribution circuits, or Force Majeure or for any other reason permitted by the Electric Utility's tariff or any other acts or omissions of the Electric Utility. 4.2 Pricing. 4.2.1 During the Delivery Period, FES shall provide Retail Electric Supply to all Participating Customers at the price set forth on the Pricing Attachment. There will be no discount given on such charges as transmission and ancillary services if they are identified in a separate tariff or rider approved by the ICC. 4.3 Failure of Delivery. In the event that FES fails to schedule all or part of the Retail Electric Supply as set forth herein and FES' failure is not due to a Force Majeure Event, and a Participating Customer is required to obtain and pays for Tariffed Service or other Energy supply arrangement necessary to cure such Energy deficiency, FES shall reimburse Participating Customer, on the later of ten (10) days after receipt of invoice or the date payment would otherwise be due to FES, an amount determined by multiplying (a) the aggregate deficiency in the Retail Electric Supply by (b) the Replacement Price. IN THE EVENT OF FES' FAILURE TO PERFORM DUE TO A NON-FORCE MAJEURE EVENT, FES' OBLIGATION TO PAY SUCH AMOUNT DURING THE PERIODS OF NON-DELIVERY SHALL BE THE GOVERNMENT AGGREGATOR'S AND THE PARTICIPATING CUSTOMERS' SOLE REMEDY FOR FES' FAILURE TO DELIVER ENERGY PURSUANT TO THE TERMS OF THIS AGREEMENT. ARTICLE 5 BILLING AND PAYMENTS 5.1 Additional Costs. In addition to the pricing described in Section 4.2.1 and the Pricing Attachment, FES will charge Participating Customers for any and all fees, costs, and obligations imposed by an ISO or a RTO on FES that are not otherwise reimbursed by the Electric Utility to FES, regardless of whether such charges are greater than, less than, or equal to the charges a Participating Customer currently pays for these services to the Electric Utility ("Transmission and Ancillary Charges"). FES will pass these Transmission and Ancillary Charges, which may be variable, through to the Participating Customers, and Participating Customers will receive no discount or percent-off of these Transmission and Ancillary Charges. Such pass through includes, without limitation, the cost of Network Integration Transmission Services, Transmission Losses and Ancillaries (as such terms are used by the ISO), distribution line losses and distribution service charges assessed by the Electric Utility on FES and/or its customers, and any capacity requirement imposed on FES by an ISO or a RTO. 5.2 Billing. Billing shall be provided by the Electric Utility under a consolidated billing format pursuant to the Electric Utility's tariff provisions and ICC rules applicable to 7