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HomeMy WebLinkAboutResolution #4033 (2) - execution of service agreement with the lowest responsible bidder for the supply of electricity for residential and small commercial retail customers who do not opt out of such programRESOLUTION NO. 4033 A RESOLUTION AUTHORIZING EXECUTION OF A SERVICE AGREEMENT WITH THE LOWEST RESPONSIBLE BIDDER FOR THE SUPPLY OF ELECTRICITY FOR RESIDENTIAL AND SMALL COMMERCIAL RETAIL CUSTOMERS WHO DO NOT OPT OUT OF SUCH A PROGRAM (Electric Aggregation) WHEREAS, Section 1 -92 of the Illinois Power Agency Act, 20 ILCS 3855/1- 92, permits a municipality, if authorized by referendum, to adopt an ordinance by which it may operate a program to solicit bids and enter into service agreements for the sale and purchase of electricity and related services and equipment to residential and small commercial customers who do not opt -out of such a program; and WHEREAS, the City of Canton ( "City "), in a referendum held on September 3rd 2013, submitted the public question of whether it should operate the program as an opt -out program; and WHEREAS, the referendum passed by a majority vote of the qualified electors voting on the question; and WHEREAS, the City Council finds that the best interests of the City are served by entering into an agreement with the lowest responsible bidder, pursuant to 20 ILCS 3855/1 -92, to aggregate the residential and small commercial retail electric loads located within the City and to arrange for competitive electric supply to the retail electrical accounts which do not opt out of said program; and WHEREAS, because electricity is a commodity for which supply bids typically are submitted and expire the same day, the City must act promptly to accept and execute any such desired bid in order to contractually guarantee a per kilowatt hour electric rate for its residential and small commercial customers; and NOW, THEREFORE, BE IT RESOLVED by the City Council in the City of Canton, County of Fulton, in the state of Illinois, as follows: Section 1. The Mayor of Canton, Illinois, be and the same is hereby authorized to execute and deliver and the City Clerk of the City of Canton, Illinois, be and the same is hereby authorized to attest to said execution of a service agreement with the lowest responsible bidder for the supply of electricity for residential and small commercial retail customers who do not opt out of such a program, said execution and attestation to take place within the applicable time constraints required by the bidder; provided, however, that the energy price to be paid per kilowatt hour pursuant to the agreement is less than the annual average of the published default rate currently in effect, resulting in savings for the City's residential and small commercial retail customers. Section 2. This Resolution shall be effective immediately and shall remain in effect until May 2014. Motion was made by Alderman Gerald Ellis, seconded by Alderman Dave Pickel that the Resolution be adopted. PASSED BY THE CITY COUNCIL OF THE CITY OF CANTON, FULTON, ILLINOIS, IN REGULAR AND PUBLIC SESSION THIS 17 DAY OF SEPTEMBER, 2013. APPROVED: T EXAMIlVED AND APPROVED: City Attorney WI's PROFESSIONAL ENERGY CONSULTING SERVICES AGREEMENT This Services Agreement ( "Agreement ") is made and entered into and effective on this 3rd day of September, 2013 ( "Effective Date ") by and between the City of Canton, Illinois ( "Municipality "), an Illinois Municipal Corporation, with offices located at 2 North Main St. Canton IL 61520, and Good Energy, L.P ( "Service Provider "), with an office and principal place of business located at 232 Madison Avenue, Third Floor, New York, NY 10016. Recitals WHEREAS, Municipality desires to engage Service Provider to perform electricity consultancy services and procurement for Municipality in relation to a program for the aggregation of residential and small commercial electric accounts on an opt -out basis (the "Program ") in accordance and compliance with Section 92 of the Illinois Power Agency Act, 20 ILCS 3855/1 -92 (the "Act "). WHEREAS, Services Provider desires to perform the Municipal Residential and Small Commercial Opt -Out Aggregation Consulting Services (collectively, the "Services ") as hereinafter defined and desires to be so engaged. WHEREAS, Alternative Retail Electric Supplier ( "Supplier ") will provide energy supply to the residents and small businesses of the Municipality upon approval of the opt -out referendum. NOW, THEREFORE, in consideration of the foregoing and of the covenants and agreements herein contained, and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged and approved, the parties, intending to be legally bound, agree as follows: Provisions I. Performance of the Services. Service Provider shall perform each of the following activities in a manner consistent with the best practices established for electrical aggregation program consulting services and shall be mutually agreed by the Municipality and Service Provider: A. Provide the following services: I . Provide electricity residential and small commercial opt -out aggregation consulting services to the Municipality. 2. Implement comprehensive marketing services for an opt -out electricity aggregation program, all at Service Provider's expense. 3. Pre - referendum awareness campaign to inform and educate the community about the Program at the expense of the Service Provider. 4. Coordinating efforts with the Illinois Commerce Commission and the Illinois Power Agency. 5. Assist in the preparation of a Plan of Operation and Governance for the Program, in consultation with the Municipality. 6. Preparation of bid specifications and procurement of competitive, fixed -price bids, with final selection of an electric supplier being decided by Municipality. 7. Negotiating fees for the City with winning supplier in an amount equal to, but not greater than, the rate negotiated for Good Energy, L.P. as more fully described herein. 8. Assist with contract negotiations with the selected Supplier. 9. On -going daily monitoring during the length of the energy supply contract with the selected Supplier. B. Give prompt notice to Municipality should the Service Provider observe or otherwise become aware of any fault or deficit in the Program or any nonconformance with the electricity sale & purchase agreement. C. Remit to Municipality after the termination of this Agreement, all files and documents pertaining to the project that have been obtained or produced including, but not limited to, permits, licenses, applications, codes, drawings, site plans, photographs and similar materials. D. Comply with all statutes, ordinances, laws, rules and regulations which may be applicable to the services provided hereunder. 2 II. Obligations of Municipality. Municipality shall: A. Assist the Service Provider by placing at its disposal all public information pertinent to the services for the project, upon reasonable request. B. Use reasonable efforts to secure release of other data applicable to the Program held by others, including but not limited to residential and small commercial customer account and load information under the authority granted in the Act. C. Give prompt notice to the Service Provider should Municipality observe or otherwise become aware of any fault or deficit in the Program or any nonconformance with the electricity sale and purchase agreement. D. Approve an ordinance or resolution to put the opt -out referendum on the ballot on the next election E. Conduct public hearings and adopt a Plan of Operation and Governance, each as required by the Act. F. Nothing herein shall be construed to require the Municipality to approve an electricity purchase and sale agreement with an alternative retail electric supplier. III. Term and Termination. The Agreement shall commence on the — day of , 2013 and shall terminate on the date on which an electricity sale and purchase agreement with an alternative retail electric supplier expires or earlier terminates, or as otherwise mutually agreed to by Municipality and the Service Provider. Municipality may terminate this Agreement at any time by giving Service Provider thirty (30) days advance written notice. In the event this Agreement is terminated by Municipality prior to its natural expiration, Service Provider shall be paid for the volume of electricity purchased through the residential and small commercial opt -out contract by the current alternative retail electric supplier through the next meter read date following the date of expiration of any executed (if any) electricity contract with a current alternative retail electric supplier. IV. Payment. Subject to the Municipality's termination rights described in Section III, Municipality agrees that Good Energy fees will be paid volumetrically per kilowatt-hour (kWh) by the selected Supplier for electricity purchased for the duration of the Supplier's energy supply contract with the Municipality. Such fees will be not greater than $0.00075 / kWh. In the event the ballot proposition for the approval of an opt -out electricity aggregation program fails at the next election, the Service Provider shall not receive a fee. V. Relationship of the Municipality and Service Provider. The Municipality acknowledges and agrees that Service Provider is an independent contractor and is not an agent or employee of Municipality. Nothing in this Agreement shall be construed to create a relationship between Municipality and Service Provider of a partnership, association, or joint venture. VI. Indemnification. A. Professional Liability. Relative to any and all claims, losses, damages, liability and cost, the Service Provider agrees to indemnify, defend and save Municipality, its officers, officials, and employees harmless from and against any and all suits, actions or claims for property losses, damages or personal injury claimed to arise from a negligent act, error or omission by the Service Provider or its employees pertaining to the services performed in connection with the Program. B. Non - Professional Liability (General Liability). To the fullest extent permitted by law, the Service Provider shall indemnify, defend and hold harmless Municipality, its officers, officials, employees or any combination thereof, from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of the acts or omissions of the Service Provider, provided that such claim, damage, loss or expenses is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of property (other than the work itself) including loss of use resulting therefrom, but only to the extent caused to in whole or in part by the acts or omissions of the Service Provider, any subconsultant(s) of the Service Provider, its agents, or anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim damage, loss or expense is caused in part by a indemnified hereunder. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this paragraph. The Municipality shall be held harmless for any damage to the Service Provider's property and/or equipment during the course of performance under the Contract. VII. Insurance. A. The Service Provider shall secure and maintain, at his/her /its own expense, errors and omissions insurance in an amount not less than One Million Dollars ($1,000,000.00) per claim /annual aggregate to protect itself from any claim arising out of the performance of professional services and caused by negligent acts or omissions for which the Service Provider may be legally responsible, with a deductible not to exceed $50,000 without prior written approval. B. The above referenced insurance shall be maintained in full force and effect during the life of this Agreement. VIII. Right to Audit A. Service Provider guarantees that the individuals employed by the Service Provider in any capacity, including but not limited to, employees, subcontractors and independent contractors, are authorized to work in the United States. Municipality maintains the right to audit the Form I -9s for all individuals the Service Provider has performing services for Municipality every six (6) months. Municipality will provide the Service Provider with thirty (30) days advanced written notice of its intent to perform a Form I -9 audit. In response to Municipality's audit request, the Service Provider shall provide copies of all Form I -9s and any supporting documentation for all individuals who the Service Provider had performing services for Municipality at any time subsequent to the date upon which Municipality gave notice of the preceding Form I -9 audit. 4 B. The Service Provider agrees to indemnify Municipality in accordance with Section VI of the Agreement for any issue arising out of the Service Provider's hiring or retention of any individual who is not authorized to work in the United States. IX. Taxes. A. Service Provider has the following identification number for income tax purposes: 43- 2003973. B. Service Provider is subject to and responsible for all applicable federal, state, and local taxes. C. Municipality represents that it is a tax - exempt entity and evidence of this tax- exempt status shall be provided to Service Provider upon written request. X. Assignment. Neither party may assign this Agreement without obtaining express, written consent from the other party prior to assignment. XI. Entire Agreement / Amendment. This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations, discussions, undertakings and agreements between the parties. This Agreement may be amended or modified only by a writing executed by the duly authorized officers of the parties hereto. It is understood and agreed that this Agreement may not be changed, modified, or altered except by an instrument, in writing, signed by both parties in accordance with the laws of the State of Illinois. XII. Discrimination. A. To the extent the following applies, Service Provider shall reasonably comply with all federal, state and local laws, rules and regulations applicable to the work including without limitation the requirements of the Equal Employment Opportunity Clause of the Illinois Human Rights Act, (775 ILCS 5/2 -105), the rules and regulations of the Illinois Department of Human Rights, and all laws and regulations pertaining to occupational and work safety. Service Provider's signature on this document herein certifies that it had a sexual harassment policy in effect that complies with 775 ILCS 5/2 -105. B. In the event of Service Provider's non - compliance with the provisions of the foregoing Equal Employment Opportunity Clause, the Illinois Human Rights Act, or the rules and regulations of the Illinois Department of Human Rights, Service Provider may be declared ineligible for future contracts or subcontracts and this Agreement may be canceled and voided in whole or in part and such other sanctions or other penalties may be imposed as provided by statute or regulation. However, any forbearance or delay by the Municipality in canceling this contract shall not be construed as and does not constitute the Municipality's consent to such a violation or the Municipality's waiver of any rights it may have. XIII. Confidential and Proprietary Information. A. Notwithstanding anything to the contrary set forth herein, the Municipality and Service Provider are not required to disclose information which they reasonably deem to be proprietary or confidential in nature. The Municipality agrees that any information 5 designated as proprietary and confidential shall only be disclosed to those officials, employees, and representatives that have a need to know in order to administer and enforce this Agreement. For purposes of this Section, the terms "proprietary or confidential" include, but are not limited to, information relating to trade secrets, corporate structure and affiliates, marketing plans, financial information, or other information that is reasonably determined by the Service Provider to be competitively sensitive. The Municipality may make proprietary or confidential information available for inspection but not for copying or removal by Municipal representatives. In the event there is an Illinois Freedom of Information Act ( "Illinois FOW') request that would disclose trade secrets or other confidential information, the Municipality shall invoke an exemption per Section 7(g) of Illinois FOIA, which allows the Municipality to deny the FOIA request of sensitive and confidential information. B. Ownership of Data and Documents. All data and information, regardless of its format, developed or obtained under this Agreement ( "Data "), other than the Service Provider's confidential information, will be and remain the sole property of the Municipality. The Service Provider must promptly deliver all Data to the Municipality at the Municipality's request. The Service Provider is responsible for the care and protection of the Data until that delivery. The Service Provider may retain one copy of the Data for the Service Provider's records subject to the Service Provider's continued compliance with the provisions of this Contract. C. Limitations on customer information. Both Parties acknowledge and agree that the customer information is subject to, and must be maintained in compliance with, the limitations on disclosure of the customer information established by the Act, including without limitation Section 16 -122 of the Public Utilities Act, 220 ILCS 5/16 -102, Section 2HH of the Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2HH, and the provisions of the Ameren Illinois Tariff Rate for Government Aggregation Services. Municipality agrees that customer - specific information provided to the Municipality in accordance with the provisions of the Ameren Illinois Tariff Rate for Government Aggregation Services shall be treated as confidential, subject to the Illinois FOIA. To protect the confidentiality of customer information: Service Provider access to customer information is limited those authorized representatives of Service Provider, or any third party, who have a need to know the information for purposes of this Contract. 2. Service Provider warrants that it will not disclose, use, sell, or provide Customer Information to any person, firm or entity for any purpose outside of the aggregation program. 3. Service Provider and Municipality acknowledge that customer information remains the property of the Municipality and that material breaches of confidentiality will prohibit Service Provider from placing any new bids to the Municipality's subsequent Request(s) for qualifications for a period of one year after termination of this Agreement. D. Proprietary Rights, Survival. The Municipality and Service Provider acknowledge the proprietary rights of the other in and to the Confidential Information. The obligations under this Provision XIII shall survive the conclusion or termination of this Agreement. 0 XIV. Governing LawNenue. Any controversy or claim, whether based upon contract, statute, tort, fraud, misrepresentation or other legal theory, related directly or indirectly to this Agreement, whether between the parties, or of any of the parties' employees, agents or affiliated businesses, will be resolved under the laws of the State of Illinois, in any court of competent jurisdiction in county in which the Municipality is principally located. XV. Severability. If any provision of this Agreement is held invalid or unenforceable, such provision shall be deemed deleted from this Agreement and shall be replaced by a valid, mutually agreeable and enforceable provision which so far as possible achieves the same objectives as the severed provision was intended to achieve, and the remaining provisions of this Agreement shall continue in full force and effect. XVI. Paragraph Headings. Paragraph headings are inserted in this Agreement for convenience only and are not to be used in interpreting this Agreement. [Signatures appear on following page] 7 IN WITNESS WHEREOF, the parties have executed this Agreement as of the 3rd day of September, 2013. City of Canton, IL BY: Mayor Fritz GOOD ENERGY, L.P. I:' Jerod McMorris Energy Consultant IN WITNESS WHEREOF, the parties have executed this Agreement as of the 3'6 day of September, 2013. City of Canton, IL BY: Mayor Fritz QOCD ENERGY, L.P. BY: MWorris Energy Consultant