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HomeMy WebLinkAboutResolution #5036 (Dacott Energy Services) RESOLUTION NO.5036 A RESOLUTION APPROVING A CONSULTING AGREEMENT WITH DACOTT ENERGY SERVICES AND THE CITY OF CANTON AND DIRECTING THE MAYOR TO EXECUTE AND DELIVER SAID AGREEMENT ON BEHALF OF THE CITY OF CANTON,ILLINOIS. WHEREAS, the Canton City Council has determined that it is necessary and in the best interests of the City of Canton to enter into a consulting agreement with Dacott Energy, as set forth in Exhibit "A" attached hereto and incorporated herein; and NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF CANTON,ILLINOIS,AS FOLLOWS: 1. That the agreement attached hereto and incorporated herein as Exhibit"A" is hereby approved by the Canton City Council. 2. That the Mayor of the City of Canton, Illinois is hereby authorized and directed to execute said Agreement on behalf of the City of Canton. 3. That this Resolution shall be in full force and effect immediately upon its passage by the City Council of the City of Canton, Illinois and approval by the Mayor thereof. PASSED by the City Council of the City of Canton, Illinois at a regular meeting this 17th day of November 2015 upon a roll call vote as follows: AYES: Aldermen Craig West, Tad Putrich,Jim Nelson, Ryan Mayhew, John Lovell,Angela Hale NAYS: Alderman Gerald Ellis,Justin Nelson ABSENT: None APPROVED: Jeffrey A. 04-Mayor ATTE T: Diana Pavfiey-Rock, City90ofter NLR Documents/Resolutions 11/13/2015 DACOTT ENERGY SERVICES This Consulting Agreement(the"Agreement")is dated as of November 3,2015(the"Effective Date"),and is made by and between DaCott Energy Services,Ltd.,("DaCott"),and City of Canton("Client")with respect to certain services provided by DaCott as described herein.The parties hereby agree to the following terms and conditions in connection with such services. 1.Services.DaCott agrees to provide consulting services for the Client,as more fully described in Exhibit A (the"Project(s)").In the event the Client requests additional services related to a Project or a new Project,the scope of such additional services shall be as agreed by the parties and shall be governed by this agreement. 2.Compensation.The parties agree that DaCott will be compensated by Client for its professional fees for the Project(s)as listed in Appendix A. Compensation for any additional services provided by DaCott relating to the Project(s)shall be as agreed by the parties. 3.Term.This Agreement shall begin on the Effective Date and continue for a period of one year,and then month to month thereafter,until cancelled by either party with 30 days written notice;provided there are no Projects listed on Exhibit A still in effect. in the event of any such termination,DaCott shall be compensated pro rata for professional fees and expenses incurred with respect to services performed through the effective date of termination in accordance with Section 2,but will not be entitled to any additional compensation. 4.Confidentiality.DaCott recognizes that certain confidential information concerning the Client will be furnished by the Client to DaCott in connection with the Project(s)("Confidential Information"). DaCott agrees that it will disclose Confidential Information only to those of its directors,officers,employees, advisors or agents who have a need to know such information,or to advisors to the Client.Confidential Information shall not include information that(i)is in the possession of DaCott prior to its receipt of such information from the Client,(ii)is or becomes publicly available other than as a result of a breach of this agreement by DaCott,or(iii)is or can be independently acquired or developed by DaCott without violating any of its obligations under this agreement. The Client recognizes and confirms that DaCott(a)will use and rely primarily on the Confidential Information and on information available from public sources in performing the services contemplated by this agreement without having independently verified the same,and(b)does not assume responsibility for the accuracy or completeness of the Confidential Information or such other publicly available information. In the event that DaCott receives a request to disclose all or any part of any Confidential Information under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction,judicial or administrative agency or by a legislative body or committee,such disclosure by DaCott shall not constitute a violation of this Agreement provided that DaCott(a)promptly notifies Client of the existence,terms and circumstances surrounding such request,(b)consults with Client on the advisability of taking available legal steps to resist or narrow such request,and(c)if disclosure of such Confidential information is required or deemed advisable,exercises its best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information to be disclosed which Client designates. S.Use of DaCott Name and Work Products.In connection with the Project(s),DaCott may furnish the Client with reports,analyses or other such materials(the"Materials").The Client understands and agrees that any such CONFIDENTIAL City of Canton November 17,2015 Page 2 of 6 Materials will be furnished solely for its internal use and may not be furnished in whole or in part to any other person other than its directors,officers and employees without the prior written consent of DaCott. The Client may furnish Materials to its legal counsel,accountants or investment bankers who have been retained by the Client to provide services in connection with the Project(s)and who need to know such information in the performance of such services if(i)the Client informs each such person of the confidential nature of the Materials,(ii)each such person agrees not to disclose the Materials to any other person and to use the Materials solely in connection with the performance of its services to the Client,and(iii)each such person agrees that in connection with discussions with or disclosures to other third parties,it will not attribute any information contained in the Materials to DaCott. The Client further agrees not to refer to DaCott or attribute any information to DaCott(i)in the press,(ii)for advertising or promotional purposes,or(iii)for the purpose of informing or influencing any third party,including the investment community,without the prior written consent of DaCott. In the event that the Client receives a request to disclose all or any part of any Materials under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction,judicial or administrative agency or by a legislative body or committee,such disclosure by the Client shall not constitute a violation of this Agreement provided that the Client(a)promptly notifies DaCott of the existence,terms and circumstances surrounding such request,(b)consults with DaCott on the advisability of taking available legal steps to resist or narrow such request,and(c)if disclosure of such Materials is required or deemed advisable,exercises its best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the Materials to be disclosed which DaCott designates. 6.Work Product.Client shall have a perpetual,irrevocable,nontransferable,paid-up right and license to use and copy the Materials and prepare derivative works based on the Materials for its internal use,subject to the terms of Section S.All other rights in the Materials,subject to the terms of Section 4,remain in and/or are assigned to DaCott.The parties will cooperate with each other and execute such other documents as may be appropriate to achieve the objectives of this Section. Client acknowledges that DaCott may develop for itself,or for others,problem solving approaches, frameworks or other tools or information similar to the Materials and processes developed in performing the Project(s)and any additional Services,and nothing contained herein precludes DaCott from developing or disclosing such materials and information provided that the same do not contain or reflect Confidential Information. 7.Indemnification.The Client hereby agrees to indemnify and hold harmless(i)DaCott,(ii)any entity directly or indirectly controlling,controlled by,or under common control with,DaCott,or any other affiliates of DaCott or such entities(collectively"DaCott Affiliates"),and(iii)the respective directors,officers,stockholders,agents and employees of DaCott and such entities(collectively,"Indemnified Persons"),from and against all claims,liabilities, losses,damages,and expenses as incurred(including reasonable legal fees and disbursements of counsel and the costs of DaCott professional time),joint or several(including actions or proceedings in respect thereof) (collectively"Losses"),relating to or arising out of:(i)the Project(s)(including without limitation the provision of consulting services),or(ii)any transaction or matter which is related to the subject matter of the Project(s).The Client shall not,however,be liable under the foregoing indemnity agreement to the extent that any such Losses are determined by arbitration pursuant to Section 14 or are otherwise finally determined,as the case may be,to have resulted primarily from the gross negligence,willful misconduct or bad faith of any Indemnified Person in connection with the Project(s).The Client also agrees that no Indemnified Person shall have any liability(whether direct or indirect,in contract or in tort or otherwise)to the Client or any person claiming through the Client, including without limitation its owners,parents,affiliates,security holders or creditors,for any Losses suffered by the Client or any such other person relating to or arising out of(i)the Project(s)(including without limitation the provision of consulting services),or(ii)any transaction or matter which is related to the subject matter of the CONFIDENTIAL City of Canton November 17,2015 Page 3 of 6 Project(s),and further agrees that DaCott shall be reimbursed for any expenses as incurred by any Indemnified Persons relating to the foregoing(including reasonable legal fees and disbursements of counsel and the costs of DaCott professional time),except to the extent that any such Losses are determined by an arbitration pursuant to Section 14 or are otherwise finally determined,as the case may be,to have resulted primarily from the gross negligence,willful misconduct or bad faith of any Indemnified Person in connection with the Project(s). The Client further agrees that it will not settle or compromise or consent to the entry of any judgment in any pending or threatened claim,action or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim,action or proceeding)unless the Client has given DaCott reasonable prior written notice thereof and obtained an unconditional release of each Indemnified Person from all liability arising therefrom,which unconditional release shall not place any non- financial obligations on any Indemnified Person. The Client acknowledges and agrees that its obligations hereunder shall be in addition to any rights that any Indemnified Person may have at law or otherwise. Upon receipt by DaCott of notice of a claim,action or proceeding in respect of which indemnity may be sought hereunder;DaCott shall promptly notify the Client with respect thereto.If in DaCott's reasonable judgment there is no conflict of interest between DaCott(or any Indemnified Person)and the Client,the Client may at its option assume and control the defense of any litigation or proceeding in respect of which indemnity is sought hereunder with counsel reasonably acceptable to DaCott.If in DaCott's reasonable judgment there is a conflict of interest between DaCott(or any Indemnified Person)and the Client,DaCott shall assume and control the defense of any litigation or proceeding(as it relates to DaCott or any such Indemnified Person)in respect of which indemnity is sought hereunder with counsel reasonably acceptable to the Client.The Client shall not be liable hereunder or otherwise for any settlement of any claim,action or proceeding effected without its written consent, which shall not be unreasonably withheld.Nothing contained herein shall prevent DaCott from retaining,at its own expense,legal counsel of its choice. S.Client Acknowledgment.It is the standing practice of DaCott to serve multiple clients within industries, including those with opposing economic interests,as well as counter-parties in potential and actual merger, acquisition and alliance transactions.DaCott is committed to maintaining the confidentiality of each client's information(generally as described in this agreement)in all such situations.Accordingly,the Client acknowledges the possibility and agrees that DaCott may have served,may currently be serving or may in the future serve other companies whose interests are adverse to those of the Client,including parties with whom the Client(i)competes; (ii)has a commercial relationship or potential commercial relationship(e.g.,suppliers,distributors);(iii)enters into competitive bidding situations;and(iv)enters into or considers entering into merger,acquisition,divestiture, alliance or joint venture transactions. 9.Independent Contractor.The parties agree that DaCott is an independent contractor to Client and will not be deemed an employee of Client for any purpose whatsoever.Without limiting the foregoing,all income taxes arising from or in connection with professional fees paid by Client to DaCott for the services provided under this Agreement shall be borne by DaCott. Neither party nor such party's directors,officers,employees or agents,shall bind or make any commitment on behalf of the other party. 10.Survival and Succession.This agreement shall survive the completion or termination of the Project(s)and any related services provided by DaCott.Further,this agreement,in its entirety,shall inure to the benefit of and be binding on the successors and assigns of the Client and DaCott. 11.Assignment.Neither of the parties hereto shall assign or transfer its interest in this Agreement or any portion thereof without the prior written consent of the other parry.Client reserves the right to terminate the agreement if there is a change in Managing Partners or change in control of DaCott. CONFIDENTIAL City of Canton November 17,2015 Page 4 of 6 12.Severability.The various provisions and sub provisions of this Agreement are severable and if any provision or sub provision or part thereof is held to be unenforceable by any court of competent jurisdiction,then such enforceability shall not affect the validity or enforceability of the remaining provisions or sub provisions or parts thereof in this Agreement. 13.Entire Agreement/Governing Law.This Agreement(including Exhibit A)constitutes the entire agreement between the parties and supersedes all prior agreements and understandings,oral and written,and may not be modified or amended except in writing signed by both parties.The laws of the State of Texas,excluding that body of law controlling conflicts of law,will govern all disputes arising out of or relating to this Agreement. 14.Arbitration.Any dispute,controversy or claim arising out of or in connection with,or relating to,this agreement,or the breach,termination or validity thereof,shall be finally settled by arbitration.The arbitration shall be conducted in accordance with the commercial arbitration rules of the American Arbitration Association (the"AAA")in effect at the time of the arbitration,except as they may be modified by mutual agreement of the parties.The seat of the arbitration shall be Houston,Texas,and the arbitration shall be conducted in English. The arbitration shall be conducted by three arbitrators.The party initiating arbitration(the"Claimant")shall appoint an arbitrator in its request for arbitration(the"Request").The other party(the"Respondent")shall appoint an arbitrator within 30 days of receipt of the Request. If by that date either party has not appointed an arbitrator,then that arbitrator shall be appointed promptly by the AAA.The first two arbitrators appointed shall appoint a third arbitrator within 30 days after the Respondent has notified Claimant of the appointment of Respondent's arbitrator or,in the event of a failure by a party to appoint,within 30 days after the AAA has notified the parties of its appointment of an arbitrator on behalf of the party failing to appoint.If the first two arbitrators appointed fail to appoint a third arbitrator within the time period prescribed above,then the AAA shall appoint the third arbitrator. The arbitral award shall be in writing,state the reasons for the award,and be final and binding on the parties. The award may include an award of costs,including reasonable attorneys'fees and disbursements.Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets. 15.Notices.Any notices under this Agreement will be sent by certified or registered mail,return receipt requested,or by facsimile(provided that the sender received electronic confirmation of receipt by recipient)to the address specified below or such other address as the party specifies in writing.Such notice will be effective upon being sent as specified in this Section. City of Canton DaCott Energy Services, Ltd By: 30 By: Name: Jef ey`A. Name: Scott M.Childs d Title: Mayor Title: Managing Partner Date: zw 46k zeo" Date: Address for 2 North Main Street Address for 3 Sugar Creek Center Blvd,Suite 440 Notice: Canton,11.61520 Notice: Sugar Land,TX 77478 Fax: (309)647-2348 Fax: (713)664-8614 Phone: (309)647 0065 Phone: (713)664-8600 CONFIDENTIAL City of Canton November 17,2015 Page 5 of 6 EXHIBIT A PROJECTS DaCott will assist City of Canton with designing and implementing the aggregation of energy supply services for the City's residents and small commercial accounts. This will include development of the aggregate energy supply program,coordinating with Ameren in gathering and organizing customer load and account data,preparing the load analysis,preparing the bid format to be submitted to electric suppliers for electric product pricing,evaluating submitted offers and presenting the findings to City of Canton,negotiating executable supply contracts and ongoing support for future supply contracts beyond the initial term. The scope of DaCott's services shall be as described below and subject to any changes as mutually agreed to by both parties. Presentations and Education to City of Canton • History of aggregation • The aggregation process • Evaluation of competitive bidding processes • Operational Plan • Switching and on-going support from DaCott&Alternative Retail Electric Suppliers(ARES) Referendum Process DaCott will be available to the City of Canton in the event that a referendum is required and will detail the aggregation program to be presented at the city council meetings. This will include the following: • DaCott to prepare the presentations or mailings required • If requested or required,DaCott will make the presentations at the public hearings Aaaresation and Load Analysis • DaCott will assist the City with requesting the historical load and account data from the utility and will manage this data in coordination with the proposed and selected supplier(s) • DaCott will analyze the load data to be presented to the suppliers for pricing o Residential o Small commercial o Combined residential and small commercial • DaCott will prepare and maintain a database of all historical load based upon availability from Ameren RFP and Selection Process • DaCott will prepare the Request for Proposal(RFP)to be sent to the ARES • Send RFP to ARES • Negotiate contract specifics with suppliers • Review and prepare analysis of indicative pricing from ARES • Evaluate existing risk and opportunity issues • Make recommendation of ARES to City of Canton board o Pricing o Term o Contract terms • Notify the winning bidder and begin the aggregation process o Monitor the switching reports process of the selected ARES CONFIDENTIAL i City of Canton November 17,2015 Page 6 of 6 Continued Energy Market Monitoring DaCott will continue to monitor the aggregation program and available market opportunities with the selected ARES as well as potential alternate suppliers with the objective of preparing a cost based risk management program to allow for contract extensions beyond the initial term. DaCott will provide regular reporting to City of Canton on the status of the aggregation program,current market conditions and opportunities for future supply availability. Professional Fees and Expenses: $0.0005/kWh CONFIDENTIAL DACOTT ENERGY SERVICES This Consulting Agreement(the"Agreement")is dated as of November 30 2015(the"Effective Date"),and is made by and between DaCott Energy Services,Ltd.,("DaCott"),and City of Canton("Client")with respect to certain services provided by DaCott as described herein.The parties hereby agree to the following terms and conditions in connection with such services. 1.Services.DaCott agrees to provide consulting services for the Client,as more fully described in Exhibit A (the"Project(s)").In the event the Client requests additional services related to a Project or a new Project,the scope of such additional services shall be as agreed by the parties and shall be governed by this agreement. 2.Compensation.The parties agree that DaCott will be compensated by Client for its professional fees for the Project(s)as listed in Appendix A. Compensation for any additional services provided by DaCott relating to the Project(s)shall be as agreed by the parties. 3.Term.This Agreement shall begin on the Effective Date and continue for a period of one year,and then month to month thereafter,until cancelled by either party with 30 days written notice;provided there are no Projects listed on Exhibit A still in effect in the event of any such termination,DaCott shall be compensated pro rata for professional fees and expenses incurred with respect to services performed through the effective date of termination in accordance with Section 2,but will not be entitled to any additional compensation. 4.Confidentiallty.DaCott recognizes that certain confidential information concerning the Client will be furnished by the Client to DaCott in connection with the Project(s)("Confidential Information"). DaCott agrees that it will disclose Confidential Information only to those of its directors,officers,employees, advisors or agents who have a need to know such information,or to advisors to the Client.Confidential Information shall not include information that(i)is in the possession of DaCott prior to its receipt of such information from the Client,(11)Is or becomes publicly available other than as a result of a breach of this agreement by DaCott,or(iii)is or can be independently acquired or developed by DaCott without violating any of its obligations under this agreement. The Client recognizes and confirms that DaCott(a)will use and rely primarily on the Confidential Information and on information available from public sources in performing the services contemplated by this agreement without having independently verified the same,and(b)does not assume responsibility for the accuracy or completeness of the Confidential Information or such other publicly available information. In the event that DaCott receives a request to disclose all or any part of any Confidential Information under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction,judicial or administrative agency or by a legislative body or committee,such disclosure by DaCott shall not constitute a violation of this Agreement provided that DaCott(a)promptly notifies Client of the existence,terms and circumstances surrounding such request,(b)consults with Client on the advisability of taking available legal steps to resist or narrow such request,and(c)if disclosure of such Confidential Information is required or deemed advisable,exercises its best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information to be disclosed which Client designates. S.Use of DaCott Name and Work Products.In connection with the Project(s),DaCott may furnish the Client with reports,analyses or other such materials(the"Materials").The Client understands and agrees that any such C0N,':F-)J1 L City of Canton November 17,2015 Page 2 of 6 Materials will be furnished solely for its internal use and may not be furnished in whole or in part to any other person other than its directors,officers and employees without the prior written consent of DaCott. The Client may furnish Materials to its legal counsel,accountants or investment bankers who have been retained by the Client to provide services in connection with the Project(s)and who need to know such information in the performance of such services if(i)the Client informs each such person of the confidential nature of the Materials,(11)each such person agrees not to disclose the Materials to any other person and to use the Materials solely in connection with the performance of its services to the Client,and(iii)each such person agrees that in connection with discussions with or disclosures to other third parties,it will not attribute any information contained In the Materials to DaCott. The Client further agrees not to refer to DaCott or attribute any information to DaCott(i)in the press,(ii)for advertising or promotional purposes,or(iii)for the purpose of informing or influencing any third party,including the investment community,without the prior written consent of DaCott. In the event that the Client receives a request to disclose all or any part of any Materials under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction,judicial or administrative agency or by a legislative body or committee,such disclosure by the Client shall not constitute a violation of this Agreement provided that the Client(a)promptly notifies DaCott of the existence,terms and circumstances surrounding such request,(b)consults with DaCott on the advisability of taking available legal steps to resist or narrow such request,and(c)if disclosure of such Materials is required or deemed advisable,exercises its best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the Materials to be disclosed which DaCott designates. 6.Work Product.Client shall have a perpetual,irrevocable,nontransferable,paid-up right and license to use and copy the Materials and prepare derivative works based on the Materials for its internal use,subject to the terms of Section S.All other rights in the Materials,subject to the terms of Section 4,remain in and/or are assigned to DaCott.The parties will cooperate with each other and execute such other documents as may be appropriate to achieve the objectives of this Section. Client acknowledges that DaCott may develop for itself,or for others,problem solving approaches, frameworks or other tools or information similar to the Materials and processes developed in performing the Project(s)and any additional Services,and nothing contained herein precludes DaCott from developing or disclosing such materials and information provided that the same do not contain or reflect Confidential Information. 7.Indemnification.The Client hereby agrees to indemnify and hold harmless(1)DaCott,(ii)any entity directly or indirectly controlling,controlled by,or under common control with,DaCott,or any other affiliates of DaCott or such entities(collectively"DaCott Affiliates"),and(iii)the respective directors,officers,stockholders,agents and employees of DaCott and such entities(collectively,"Indemnified Persons"),from and against all claims,liabilities, losses,damages,and expenses as incurred(including reasonable legal fees and disbursements of counsel and the costs of DaCott professional time),joint or several(including actions or proceedings in respect thereof) (collectively"Losses"),relatingto or arising out of:(1)the Project(s)(including without limitation the provision of consulting services),or(11)any transaction or matter which is related to the subject matter of the Project(s).The Client shall not,however,be liable under the foregoing indemnity agreement to the extent that any such Losses are determined by arbitration pursuant to Section 14 or are otherwise finally determined,as the case may be,to have resulted primarily from the gross negligence,willful misconduct or bad faith of any Indemnified Person In connection with the Project(s).The Client also agrees that no Indemnified Person shall have any liability(whether direct or indirect,In contract or in tort or otherwise)to the Client or any person claiming through the Client, including without limitation its owners,parents,affiliates,security holders or creditors,for any Losses suffered by the Client or any such other person relating to or arising out of(1)the Project(s)(including without limitation the provision of consulting services),or(ii)any transaction or matter which is related to the subject matter of the CON FI DCV1_iAL City of Canton November 17,2015 Page 3 of 6 Project(s),and further agrees that DaCott shall be reimbursed for any expenses as incurred by any Indemnified Persons relating to the foregoing(including reasonable legal fees and disbursements of counsel and the costs of DaCott professional time),except to the extent that any such losses are determined by an arbitration pursuant to Section 14 or are otherwise finally determined,as the case may be,to have resulted primarily from the gross negligence,willful misconduct or bad faith of any Indemnified Person in connection with the Project(s). The Client further agrees that it will not settle or compromise or consent to the entry of any judgment in any pending or threatened claim,action or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim,action or proceeding)unless the Client has given DaCott reasonable prior written notice thereof and obtained an unconditional release of each Indemnified Person from all liability arising therefrom,which unconditional release shall not place any non- financial obligations on any Indemnified Person. The Client acknowledges and agrees that its obligations hereunder shall be in addition to any rights that any Indemnified Person may have at law or otherwise. Upon receipt by DaCott of notice of a claim,action or proceeding in respect of which Indemnity may be sought hereunder;DaCott shall promptly notify the Client with respect thereto.If in DaCott's reasonable judgment there is no conflict of interest between DaCott(or any Indemnified Person)and the Client,the Client may at its option assume and control the defense of any litigation or proceeding in respect of which indemnity is sought hereunder with counsel reasonably acceptable to DaCott.If in DaCott's reasonable judgment there is a conflict of interest between DaCott(or any Indemnified Person)and the Client,DaCott shall assume and control the defense of any litigation or proceeding(as it relates to DaCott or any such Indemnified Person)in respect of which indemnity is sought hereunder with counsel reasonably acceptable to the Client.The Client shall not be liable hereunder or otherwise for any settlement of any claim,action or proceeding effected without its written consent, which shall not be unreasonably withheld.Nothing contained herein shall prevent DaCott from retaining,at its own expense,legal counsel of its choice. 8.Client Admowledgment.It is the standing practice of DaCott to serve multiple clients within industries, including those with opposing economic interests,as well as counter-parties In potential and actual merger, acquisition and alliance transactions.DaCott is committed to maintaining the confidentiality of each client's information(generally as described in this agreement)in all such situations.Accordingly,the Client acknowledges the possibility and agrees that DaCott may have served,may currently be serving or may in the future serve other companies whose interests are adverse to those of the Client,including parties with whom the Client(i)competes; (ii)has a commercial relationship or potential commercial relationship(e.g.,suppliers,distributors);(iii)enters into competitive bidding situations;and(iv)enters into or considers entering into merger,acquisition,divestiture, alliance or joint venture transactions. 9.Independent Contractor.The parties agree that DaCott is an independent contractor to Client and will not be deemed an employee of Client for any purpose whatsoever.Without limiting the foregoing,all income taxes arising from or in connection with professional fees paid by Client to DaCott for the services provided under this Agreement shall be bome by DaCott. Neither party nor such party's directors,officers,employees or agents,shall bind or make any commitment on behalf of the other party. 10.Survival and succession.This agreement shall survive the completion or termination of the Project(s)and any related services provided by DaCott.Further,this agreement,in its entirety,shall inure to the benefit of and be binding on the successors and assigns of the Client and DaCott. 11.Assignment.Neither of the parties hereto shall assign or transfer its interest in this Agreement or any portion thereof without the prior written consent of the other party.Client reserves the right to terminate the agreement if there is a change in Managing Partners or change in control of DaCott. C+ Pdk"iWE iPi. City of Canton November 17,2015 Page 4 of 6 12.Severability.The various provisions and sub provisions of this Agreement are severable and if any provision or sub provision or part thereof is held to be unenforceable by any court of competent jurisdiction,then such enforceability shall not affect the validity or enforceability of the remaining provisions or sub provisions or parts thereof in this Agreement. 13.Entire Agreement/Governing Law.This Agreement(including Exhibit A)constitutes the entire agreement between the parties and supersedes all prior agreements and understandings,oral and written,and may not be modified or amended except in writing signed by both parties.The laws of the State of Texas,excluding that body of law controlling conflicts of law,will govern all disputes arising out of or relating to this Agreement. 14.Arbitration.Any dispute,controversy or claim arising out of or in connection with,or relating to,this agreement,or the breach,termination or validity thereof,shall be finally settled by arbitration.The arbitration shall be conducted in accordance with the commercial arbitration rules of the American Arbitration Association (the"AAA")in effect at the time of the arbitration,except as they may be modified by mutual agreement of the parties.The seat of the arbitration shall be Houston,Texas,and the arbitration shall be conducted in English. The arbitration shall be conducted by three arbitrators.The party initiating arbitration(the"Claimant")shall appoint an arbitrator in its request for arbitration(the"Request").The other party(the"Respondent")shall appoint an arbitrator within 30 days of receipt of the Request.If by that date either party has not appointed an arbitrator,then that arbitrator shall be appointed promptly by the AAA.The first two arbitrators appointed shall appoint a third arbitrator within 30 days after the Respondent has notified Claimant of the appointment of Respondent's arbitrator or,in the event of a failure by a party to appoint,within 30 days after the AAA has notified the parties of its appointment of an arbitrator on behalf of the party failing to appoint.If the first two arbitrators appointed fail to appoint a third arbitrator within the time period prescribed above,then the AAA shall appoint the third arbitrator. The arbitral award shall be in writing,state the reasons for the award,and be final and binding on the parties. The award may include an award of costs,including reasonable attomeys'fees and disbursements.Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets. 15.Notices.Any notices under this Agreement will be sent by certified or registered mail,return receipt requested,or by facsimile(provided that the sender received electronic confirmation of receipt by recipient)to the address specified below or such other address as the party specifies in writing.Such notice will be effective upon being sent as specified in this Section. City of Canton DaCott Energy Services,Ltd ev' By: L- Name: Jeffrey .Fri Name: Scott M.Childs Title: Mayor Title: Managing Partner Date: ///i 4 Date: w' 111.8 its Address for 2 North Main Street Address for 3 Sugar Creek Center Blvd,Suite 440 Notice: Canton,11.61520 Notice: Sugar Land,TX 77478 Fax: (309)647-2348 Fax: (713)664-8614 Phone: (309)647 0065 Phone: (713)664-8600 City of Canton November 17,2015 Page 5 of 6 EXHIBIT A PROJECTS DaCott will assist City of Canton with designing and implementing the aggregation of energy supply services for the City's residents and small commercial accounts. This will Include development of the aggregate energy supply program,coordinating with Ameren in gathering and organizing customer load and account data,preparing the load analysis,preparing the bid f6rmat to be submitted to electric suppliers for electric product pricing,evaluating submitted offers and presenting the findings to City of Canton,negotiating executable supply contracts and ongoing support for future supply contracts beyond the initial term. The scope of DaCott's services shall be as described below and subject to any changes as mutually agreed to by both parties. Presentations and Education to City of Canton • History of aggregation • The aggregation process • Evaluation of competitive bidding processes • Operational Plan • Switching and on-going support from DaCott&Alternative Retail Electric Suppliers(ARES) Referendum Process DaCott will be available to the City of Canton in the event that a referendum is required and will detail the aggregation program to be presented at the city council meetings. This will include the following: • DaCott to prepare the presentations or mailings required • If requested or required,DaCott will make the presentations at the public hearings AaereRation and load Analysis • DaCott will assist the City with requesting the historical load and account data from the utility and will manage this data in coordination with the proposed and selected supplier(s) • DaCott will analyze the load data to be presented to the suppliers for pricing o Residential o Small commercial o Combined residential and small commercial • DaCott will prepare and maintain a database of all historical load based upon availability from Ameren RFP and Selection Process • DaCott will prepare the Request for Proposal(RFP)to be sent to the ARES • Send RFP to ARES • Negotiate contract specifics with suppliers • Review and prepare analysis of indicative pricing from ARES • Evaluate existing risk and opportunity Issues • Make recommendation of ARES to Cirrty of Canton board o Pricing o Term o Contract terms • Notify the winning bidder and begin the aggregation process o Monitor the switching reports process of the selected ARES (ON'PiIDMT„>+ City of Canton November 17,2015 Page 6 of 6 Continued Enerev Market Mon rine DaCott will continue to monitor the aggregation program and available market opportunities with the selected ARES as well as potential alternate suppliers with the objective of preparing a cost based risk management program to allow for contract extensions beyond the initial term. DaCott will provide regular reporting to City of Canton on the status of the aggregation program,current market conditions and opportunities for future supply availability. Professional Fees and Expenses: $0.0005/kWh