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HomeMy WebLinkAbout08-0126 Direct Energy Services Unsigned 02/12/2008 08:20 FAX 847 931 5610 CITY MANAGER'S OFFICE la 002/014 COMMERCIAL ELECTRICITY SERVICE AGREEMENT THIS COMMERCIAL ELECTRICITY SERVICE AGREEMENT. including Attachments A (Standard Terms and Conditions). B (Fixed Pricing), and C (Letter of Limited Agency) which are a part hereof (this "Agreement"), is entered into by and between Direct Energy Services, LLC ("Direct Energy"),and City of Elgin, ("Customer")(individually a"Party"and collectively the"Parties"). Any capitalized term used herein shall have the meaning ascribed to such term in Section 7 or elsewhere in this Agreement. SECTION 1: RETAIL ELECTRIC SALES AND SERVICES 1.1 Appointment,Scope and Term. The purpose of this Agreement is to appoint Direct Energy as Customer's ARES with respect to the Accounts. Customer hereby appoints Direct Energy as its ARES for the Accounts, authorizes Direct Energy to complete appropriate documentation as its limited agent to switch its electrical retail service, and confirms its decision to switch electric retail suppliers to Direct Energy. Customer agrees to complete Attachment C simultaneous with execution of this Agreement. Unless otherwise specified,all electric retail power service and energy associated with the Account Number(s)specified in Attachment B will be switched to Direct Energy as an ARES. Direct Energy shall perform all the functions of an ARES and shall provide for each Account electric retail service on a Firm basis for the full usage requirements of such Account from the Switch Date and continuing thereafter until the date of the reading of the meters)for such Account occurring in the end of term month for such Account specified on Attachment B(the"Term"). This Agreement is for generation and transmission service(including ancillary transmission service),not distribution service. SECTION 2: RETAIL ELECTRIC ENERGY SERVICE CHARGES 2.1 Fixed Energy Price. The price to be paid by Customer for electric retail service provided hereunder to each Account(thc"Fixed Energy Price")shall be that price as specified in Attachment B. 2.2 Taxes and Non-Recnrring Charges. Non-Recurring Charges and all applicable Taxes shall be passed through to and paid by Customer. If Customer is exempt from the payment of any Taxes,Customer shall provide Direct Energy with all required exemption certificates. Until Customer does so, Direct Energy shall not recognize any claimed exemption and shalt not be required to refund or credit previously paid Taxes unless the taxing authority sends the refund directly to Direct Energy. Customer agrees to indemnify, defend and hold harmless Direct Energy from and against any and all claims,demands,suits, losses.damages.liabilities,costs.and expenses(including reasonable attorneys fees)associated with or resulting from any claimed exemption and the payment or nonpayment of taxes by Customer. SECTION 3: BILLING AND PAYMENT 3.1 Billing and Payment. Customer shall be invoiced for the electric retail service provided hereunder in accordance with the billing option identified on Attachment B. Invoices issued by Direct anergy(a "Direct Energy Invoice")shall be mailed to the Customer's billing address set forth on Attachment B. Customer shall remit payment to Direct Energy to the address set forth below for all Direct Energy Invoices within 20 days of receipt of such Direct Energy Invoice. Customer shall remit payment for EDC invoices to the EDC within the EDC's net payment period stated therein. Any Direct Energy Invoice shall be based on actual data provided to Direct Energy by the EDC and if no such data is available, or if the EDC is delayed in providing such data, the Parties agree that Direct Energy may use estimated data to calculate Customer's invoice. Upon receipt of actual data.Direct Energy shall reconcile the charges nn such invoices and adjust them as needed in subsequent invoices. Direct Energy Payment Address: Direct Energy Services,LLC P.O.Box 25242 Lehigh Valley.PA 18002-5242 tt PP Ain rarsarity fOI NRN1R 02/12/2008 08:21 FAX 847 931 5610 CITY MANAGER'S OFFICE 1]003/014 3.2 Charges and Interest; Invoice Disputes. Customer shall pay to Direct Energy a S25 charge for each returned payment on a Direct Energy invoice Inc insufficient funds. Interest shall accrue on any due and unpaid amounts on a Direct Energy invoice from the date the amounts became due at a rate of 1.5%per month,or the highest rate permitted by law,whichever is less. if Customer in good faith disputes some portion of a Direct Energy Invoice, Customer shall provide Direct Energy, within 15 days of the invoice date, a written explanation specifying the amount in dispute and the reason for the dispute. If notice is not given within such 15 day period,all amounts reflected on a Direct Energy Invoice shall be owed by the due date. The Parties shall use good faith efforts to resolve any dispute. lithe Parties are unable to resolve any such dispute within 10 days of the notice date.either Party may begin legal proceedings to resolve the dispute. Upon final resolution or agreement that any disputed amount is owed,such amount shall be deemed due and owing as of its original due date and such amount(together with accrued interest thereon at the rate specified above)shall be paid by Customer to Direct Energy within 10 days of such resolution or agreement. Customer shall pay all undisputed amounts within 20 days of receipt of the Direct Energy Invoice or within the EDC's net payment period for an EDC invoice as set forth in Section 3.1 above. SECTION 4: PERFORMANCE ASSURANCE 4.1 Performance Assurance. Direct Energy shall have the right to require initial Performance Assurance of Customer in the amount as set forth in Attachment B. Customer may also he required to provide additional Performance Assurance if(a)Customer or its Credit Support Provider experiences a Ratings Event, (b) Customer or Customer's rated parent.as applicable experiences any deterioration in its credit payment history or its D&B credit scores or(c) any material adverse change occurs in the creditworthiness of Customer or any Credit Support Provider. SECTION 5: EARLY TERMINATION 5.1 CANCELLATION FOR MATERIAL CHANGE. IF A MA"TERiAL CHANGE OCCURS (UNLESS DIRECT ENERGY, IN iTS SOLE DISCRETION,AGREES iN WRITING OTHERWISE WITH CUSTOMER OR CUSTOMER UNILATERALLY FULLY REMEDIES THE CONDITION GIVING RiSE TO THE MATERIAL CHANGE WITHIN THE BELOW REFERENCED 30 DAY PERIOD), DIRECT ENERGY MAY PASS THROUGH ANY INCREMENTAL COSTS ASSOCIATED WITH OR RESULTING FROM ANY MATERIAL CHANGE, PROVIDED, THAT iF CUSTOMER DOES NOT ACCEPT SUCH CHANGE IN COST THEN DIRECT ENERGY MAY TERMINATE THIS AGREEMENT AS TO THE AFFECTED ACCOUNT(S) UPON 30 DAYS PRIOR WRITTEN NOTICE TO CUSTOMER WiTHOUT PENALTY OR EARLY TERMINATION DAMAGES BEING OWED BY DIRECT ENERGY. iN THE EVENT DIRECT ENERGY TERMINATES THIS AGREEMENT AS SPECIFIED IN THiS PARAGRAPH 5.1(b), THEN CUSTOMER SHALL BE OBLIGATED TO PAY TO DIRECT ENERGY THE EARLY TERMINATION DAMAGES. 5.2 EARLY TERMINATION DAMAGES. iF THIS AGREEMENT IS TERMINATED AS TO ANY ACCOUNT(S) DUE TO AN EVENT OF DEFAULT (AS DEFINED IN ATTACHMENT A) BY ONE OF' THE PARTIES, THE DEFAULTING PARTY SHALL BE OBLIGATED TO PAY TO THE NON-DEFAULTING PARTY THE EARLY TERMINATION DAMAGES WiTHIN 15 DAYS FOLLOWING A WRITTEN DEMAND FROM THE NON-DEFAULTING PARTY. IF CUSTOMER DOES NOT ACCEPT A PRICE INCREASE RESULTING FROM MATERIAL CHANGE UNDER SECTION 5.1, THE CUSTOMER SHALL PAY DIRECT ENERGY 'THE EARLY TERMINATION DAMAGES TO DIRECT ENERGY WITHIN 15 DAYS FOLLOWING WRITTEN DEMAND. SECTION 6: NO'T'ICES 6.1 General Notice. Except as otherwise required by applicable law,all notices to be provided under this Agreement to a Party shall be deemed to have been duly delivered if hand delivered or sent by United States. certified or registered mail, return receipt requested. postage prepaid. facsimile, or by overnight delivery service. Notice by facsimile or hand delivery shall be effective on the day actually received, notice by overnight United States mail or courier shall be effective on the next business day after it is sent,and notice by United States Mail 2 IL FP No Capacity 012608 02/12/2008 08:22 FAX 847 931 5810 CITY I4ANAGER'S OFFICE g004/014 shall be effective on the third day after it is sent. Notices to a Party shall he sent to the applicable address set forth below,or any other address such Party provides to the other Party in writing: If to Customer: If to Direct Energy: City of Elgin Direct Energy Services, LLC 150 Dexter Ct 101 Barnes Road Elgin,IL 60120 Liberty Square,Wallingford,CT 06492 Ann: Ruth Anne Hall Facsimile:(203)284-3913 Attn.:VP,Cie!Sates With a copy,which shall not constitute notice,to; Jamey Seely Vice President&General Counsel,U.S. 12 Grccnway Plaza,Suite 600 Houston,TX 77046 Facsimile:(713)877-3692 SECTION 7: DEFINITIONS The following terms have the indicated meanings: (a) "Account"means each EDC Account Number identified on Attachment B. (b) Actual Usage" means as to an Account and the applicable Billing Period, the actual amount of electric energy (in kWh) used as determined by the EDC based on the reading of the meters) comprising such Account. (c) "Adjusted Market Price"means as to an Account and the applicable Billing Period, 125%of the Real Time Price for the same Billing Period. (d) "ARES" means Alternate Retail Electric Supplier under Section 16-102 of the Public Utilities Act,220 ILCS 5116-102. (e) "Billing Period"means as to an Account,the Billing Period utilized by the EDC. (I) Congestion Zone"means the applicable PIM price zone in which the Account is located. (g) "Credit Support Provider" means any person or entity that guarantees, or otherwise provides some form of credit support with respect to,Customer's obligations under this Agreement. (h) "Early Termination Damages" means, for a particular Account,an amount equal to the sum of the present value(using a discount rate equal to the prime rate charged by the non-defaulting Party's primary bank) of the loss of market value, if any, resulting from the termination of this Agreement with respect to such Account. and all other costs, charges, penalties and Taxes actually incurred by the non-defaulting Party,or collectible from the defaulting Party, in connection with such termination (reasonably estimated if necessary) including, but not limited to, all costs and charges actually incurred in order to determine the Early Termination Damages and to enforce the non-defaulting Party's rights and remedies in the collection of such damages. The non-defaulting Party shall determine the loss of market value of the affected Account by reference to the number of units of electric retail service that Customer would have consumed during the Termination Period,relevant market information and indices (such as daily and monthly indices,settlement prices of futures contracts and gas exchange prices and quotations from lending dealers in energy contracts or energy trading markets). and the terms and conditions under which it would be able to enter into a replacement contract with a third party for the Termination Period.However, nothing in the foregoing shall obligate the non-defaulting Party to enter into any such replacement contract with a third 3 IL FP No Capacity 0 7AAR 02/12/2008 08:23 FAX 847 931 5810 CITY MANAGER'S OFFICE 11005/014 party.Amounts used for calculating Early Termination Damages shall be adjusted for differences in transportation costs where applicable. (i) "EDC"means one or more of the local distribution companies serving each Account responsible for distributing electric retail service to customers on behalf of electric retail service suppliers like Direct Energy or supplying electric retail service to its own customers. (j) "Effective Date"the latest of the dates that Customer and Direct Energy execute this Agreement. (k) "Expected Usage" means as to an Account and the applicable Billing Period, the usage as set forth in Attachment B. (i) "Firm" means that Direct Energy may only suspend performance under this Agreement to the extent such performance is prevented due to one or more Force Majeure Events or as a result of a Material Change. (m) "kWh"means kilowatt-hour. (n) "Material Change" means as to any Account(1)a change to the electric retail service market in which such Account is located,or a change to the wholesale market design. rules or administration implemented pursuant to PJM protocol revisions; (ii) a change in Customer usage that adversely affects the load profile (for settlement purposes)with respect to such Account;(iii)a change in transmission obligation;or(iv)any new charge imposed on Direct Energy under applicable law in its obligation as the ARES with respect to such Account. (o) "Non-Recurring Charges" means any charges imposed by the EDC on an ARES on a non- recurring basis. (p) "Performance Assurance" means collateral in the form of cash, irrevocable standby letter of credit,corporate guarantee,prepayment or other security acceptable to Direct Energy in its sole discretion. (q) "PIM" means the regional transmission organization known as "PIM interconnection" that currently coordinates the movement of wholesale electricity currently in all or parts of Delaware, Illinois, Indiana, Kentucky, Maryland, Michigan, New Jersey. Ohio, Pennsylvania, Tennessee, Virginia, West Virginia and the District of Columbia. (r) "Post Term Price" means as to each Account and each Billing Period (or part thereof) during which this Agreement is extended pursuant to Section E,I of Attachment A,the greater of(i)the Fixed Energy Price for such Account referenced in Attachment B and(ii)the Adjusted Market Price plus S /kWh administration fee. (s} "Ratings Event" means, with respect to Customer, that the senior unsecured long-term indebtedness of Customer or the Credit Support Provider,as applicable, is rated less than BBB- by Standard and Poor's, a division of The McGraw-Hill Companies, Inc. ("S&P"). Baa3 by Moody's Investors Service, Inc. ("Moody's"), BBB (low) by Dominion Bond Rating Service Limited ("DBRS"), BBB- by Fitch Ratings Ltd. ("Fitch")or Customer or the Credit Support Provider ceases to be rated by any of such rating agencies. in the event of a split rating between S&P. Moody's, DBRS, and Fitch, the lowest raring will be used to determine whether 3 Ratings Event has occurred. (I) "Real Time Price" means as to an Account and the applicable Billing Period, the volume weighted average of the PIM hourly settled prices (per kWh) for the same Billing Period with respect to each Congestion Zone in which Account is located. (u) "Switch Date"means as to any Account the date upon which Direct Energy becomes the ARES for such Account as established by the EDC. 4 IL FP No Capacity lt761)R 02/12/2008 08:24 FAX 847 931 5610 CITY MANAGER`S OFFICE Ri0O6/014 (v) "Taxes" means all taxes.assessments, levies,duties,charges.fees and withholdings of any kind and all penalties, fines,and additions to tax,and interest thereon that are directly related to the services provided under this Agreement and assessed or imposed by federal,state. municipal or local government or other authority. By way of example only,"Taxes"includes sales tax,miscellaneous gross receipts tax and franchise fees. (w) "Termination Period" means as to an Account the period commencing as of the date of termination of this Agreement as to such Account and the end of the Term or(if applicable)renewal period. IN WITNESS WHEREOF. the Parties have executed this Agreement effective as of the Effective Date. This Agreement shall not become effective as to either Party unless and until executed by both Parties. City of ., DI . RGYSERVI ES LLC By; C By: � ' 0:3=. Printed Name: 71114,,; Printed me: Date: , 141 6 Title: t�OBE j. PORTER all e: VICE PRESIDENT Attachments Z — I if- ZO D$ A Standard Terms and Conditions S — Fixed Pricing C Letter of Limited Agency IL FP No Caoacitv 012608 02/12/2008 08:24 FAX 847 931 5610 CITY MANAGER'S OFFICE 007/014 Attachment A to Commercial Electricity Service Agreement ATTACHMENT A STANDARD TERMS ANI)CONDITIONS A: DEFAULT AND REMEDIES A.l Events of Default. An event of default ("Event of Default") means: (a) the failure of the Customer to make, when due, any payment due to Direct Energy or the EDC required under this Agreement and such failure continues for more than 15 days following such due date:or(h)any representation or warranty made by the applicable Party which proves to be false or misleading in any material respect; or (c) the failure of the applicable Party to perform its obligations under this Agreement (other than those Events of Default under subsections(a),(b)and(e)of this paragraph)and such failure is not excused by Force Majeure;or(d)the failure of the Customer to accept a change in cost as the result of a Material Change;or(o)the applicable Party (i)makes an assignment or any general arrangement for the benefit of creditors;or(ii)files a petition or otherwise commences, authorizes or acquiesces to a bankruptcy proceeding or similar proceeding for the protection of creditors. or have such petitions filed against it;or(iii)otherwise becomes insolvent,or(iv)is unable to pay its debts as they fall due; or(v) fails to provide,maintain or extend Performance Assurance in an amount and form reasonably acceptable under Section 4,1:or(vi)fails to provide financial statements(e.g.,the most recent year end and interim unaudited financial statement)of Customer and Credit Support Provider upon Direct Energy's request. A.2 Remedies upon an Event of Default. If an Event of Default shall have occurred and be continuing,the non-defaulting Party,upon 30 days written notice to the defaulting Party(provided, no notice shall be required for an Event of Default described in clauses(a),(d)and(c)of Section A.1 above)shall have the right (a)to commence an action to require the defaulting Party to remedy such default and specifically perform its duties and obligations hereunder in accordance with the terms and conditions hereof;(b)to exercise such other rights and remedies as it may have at equity or at law. subject however to the limitations on liabilities below: (c)to suspend performance under this Agreement;provided,in no event shall any such suspension continue for longer than 30 days unless an early termination of this Agreement has been declared and notice thereof given pursuant to this Agreement;and(d)to terminate.liquidate or accelerate this Agreement. R: CONFIDENTIALITY Each Party shall keep confidential and not disclose(except as required by law)any Confidential Information, as defined below, to a third party (i.P. a party other than the Party's affiliates, employees, lenders, counsel, accountants,advisors or prospective assignees who have a need to know such information and have agreed to keep such information confidential) which is disclosed to such Party (the "Receiving Patty") by the other Party (the "Disclosing Party"). Subject to the publication rights of Direct Energy set forth in F-til,"Confidential information" means the terms of this Agreement and any other information in written or other tangible form which is so marked when it is disclosed to the Receiving Party,except that Confidential Information shall not include information which (a)is available to the public;(b)becomes available to the public other than as a result of a breach by the Receiving Party of its obligations hereunder, (c)was known to the Receiving Party prior to its disclosure by the Disclosing Part':or(d)becomes known to the Receiving Party thereafter other than by disclosure by the Disclosing Party. The provisions of this Section B shall apply regardless of fault and shall survive termination, cancellation, suspension, completion or expiration of this Agreement. C: REPRESENTATIONS,WARRANTIES AND ACKNOWLEDGEMENT CI Mutual Representations and Warranties. As a material inducement to entering into this Agreement,each Party,with respect to itself,represents and warrants to the other Party that; (a)it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and is qualified to conduct its business in those jurisdictions necessary to perform this Agreement;(b)the execution,delivery and performance of this Agreement are within its powers,have been duly authorized by ail necessary action.and do not violate any of the terms or conditions in its governing documents or any contract to which it is a party or any law applicable to it: it FP!sin nArsnriiv f71?An • 02/12/2008 08:25 FAX 847 931 5610 CITY MANAGER`S OFFICE tj008/014 Attachment A to Commercial Electricity Service Agreement (ct this Agreement constitutes a legal, valid and binding obligation of each Party and is enforceable against it in accordance with its terms, subject to bankruptcy. insolvency, reorganization, and other laws affecting creditor's rights generally, and with regard to equitable remedies, subject to the discretion of the court before which proceedings to obtain same may be pending;(d)there are no bankruptcy,insolvency,reorganization,receivership or other similar proceedings pending or being.contemplated by it,or to its knowledge threatened against it; and(e) there are no suits,proceedings,judgments,rulings or orders by or before any court or any governmental authority or quasi governmental authority that could materially adversely affect its ability to perform this Agreement. C.2 Other Representations and Warranties. Customer additionally represents and warrants to Direct Energy that: (a)it is a non-residential retail customer with annual electrical consumption greater than 15.000 kWh;(b)as of the Effective Date and throughout the Term,there is no other contract for the purchase of electricity by Customer for the Account(s), or, if such a contract presently exists, it will terminate prior to the delivery of electricity to the Customer under this Agreement; (c) it will be solely responsible for installing, maintaining and operating all equipment required by EDC to receive electric service under this Agreement;and (d) Direct Energy additionally represents and warrants that it is a certified ARES as of the Effective Date of this Agreement. C.3 Forward Contract. The Parties acknowledge and agree that (a) this Agreement constitutes a forward contract within the meaning of the United States Bankruptcy Code("Code");(b)Direct Energy is a forward contract merchant; and (c) each Party is entitled to the applicable rights under, and the applicable protections afforded by,the Code. 0: DISCLAIMERS OF WARRANTIES;LIMITATION OF LIABILITIES D.1 Limitations of Liability. LIABILITIES NOT EXCUSED BY REASON OF FORCE MAJEURE OR OTHERWISE SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES. DIRECT ENERGY WILL NOT BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR BUSINESS INTERRUPTION DAMAGES, THESE LIMITATIONS APPLY WITHOUT REGARD TO THE CAUSE OF ANY LIABILITY OR DAMAGE. THE LIABILITY OF DIRECT ENERGY TO CUSTOMER FUR ANY OBLIGATIONS UNDER OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO A MAXIMUM OF THREE TIMES THE AVERAGE MONTHLY EXPECTED USAGE CHARGE TO CUSTOMER BY DIRECT ENERGY PURSUAN3' TO A"IYDACHMENT B OF THIS AGREEMENT; PROVIDED, THE FOREGOING SHALL NOT LIMIT ANY OBLIGATION OF DIRECT ENERGY PURSUANT TO SECTION 5.2 OF THIS AGREEMENT. THERE ARE NO THIRD PARTY BENEFICIARIES TO THIS AGREEMENT. D.2 Force Majeure. Direct Energy shall make commercially reasonable efforts to provide electric retail service, but does not guarantee a continuous supply of electricity. Force Majeure Events may result in interruptions in service,and Direct Energy shall not be liable for arty such interruptions. Direct Energy does not (and will not pursuant to this Agreement)transmit or distribute electricity. Without limiting the foregoing, during any period that a Party is unable due to a Force Majeure Event to perform its obligations(in whole or in part)under this Agreement, such non-performance shall be excused during such period. "Force Majeure Events" include, without limitation: acts of God;acts of any governmental or quasi governmental authority;accidents; strikes;labor troubles: required maintenance work: inability to access the local distribution utility system; non-performance or other acts by the local distribution utility; actions by court order; changes in laws, rules or regulations of any governmental or quasi governmental authority; or any other cause beyond a Party's control. Nothing herein shall require a Party to make a capital expenditure to cure a Force Majeure Event. Force Majeure Events shall not include any inability to perform for financial reasons or any change in Customer's requirements for electric retail service. 0.3 Disclaimer. DIRECT ENERGY MAKES NO REPRESENTATIONS, WARRANTIES OR OTHER ASSURANCE OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT,AND DIRECT ENERGY EXPRESSLY DISCLAIMS AND HEREBY NEGATES ALL OTHER REPRESENTATIONS, WARRANTIES OR OTHER ASSURANCE, WRITTEN OR ORAL, EXPRESSED II FP Nn('nnrrttu fit'ROR 02/12/2008 08:26 FAX 847 931 5610 CITY MANAGER'S OFFICE Q009/014 Attachment A to Commercial Electricity Service Agreement OR IMPLIED, INCLUDING,WiTHOUT LIMITATION,WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. E: RENEWAL;TITLE El Renewal After the expiration of the Term, this Agreement shall be extended for successive I month term(s)until either Party notifies the other in writing of its election to not extend this Agreement at least 60 days prior to the end of Term or any such monthly renewal period,as applicable,and each such extension shall be or the same terms and conditions set forth herein except that the price for all electric retail service provided after the Term shall be the Post Term Price. E.2 Title. Title to and risk of loss with respect to electricity provided by Direct Energy shall pass to Custumer at the time such electricity enters the EDC distribution system. Direct Energy shall not be responsible or liable for any delay caused by the non-performance of any third-party including,without limitation, the EDC or for any intemtption,failure to deliver or deterioration of any transmission or distribution services. F: MISCELLANEOUS PR©VISIONS F.l This Agreement shall be binding upon and inure to the benefit of each Party and upon their respective successors and permitted assigns. F.2 The Parties expressly acknowledge that this Agreement is not to be relied upon by third parties and that it carries with it no precedential value and should not be construed to create any duty.obligation or standard of care with reference to any liability to any person or entity who is not a party to this Agreement F.3 This Agreement may not be altered, amended. modified or otherwise changed in any respect whatsoever except by a writing duly executed by each Party. F.4 This Agreement shall be governed by.construed under and interpreted in accordance with the laws of the State of Illinois,without reference to its principles of conflicts of laws,as it exists on the Effective Date. F.5 Each person who signs this Agreement on behalf of a Party represents and warrants that he or she has the authority to sign this Agreement on behalf of such Party. F.6 This Agreement may be executed in counterparts with the same effect as if the signatures hereto and thereto were upon the same instrument. Each counterpart shall be deemed an original. which taken together shall constitute a single agreement. F.7 This Agreement or any uncertainty or ambiguity therein shall not be construed against any one Party but rather shall he construed as if both Parties jointly prepared this Agreement. F. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes in their entirety any and all previous understandings, commitments, statements or assurances,oral or written.with respect to the subject matter hereof. F.9 Customer may assign this Agreement, in whole or in part, or any of its rights or obligations hereunder only with the prior written consent of Direct Energy.Direct Energy may. without Customer's consent, to the fullest extent allowed by law: (a)transfer, sell, pledge,encumber or assign this Agreement or the Account(s), revenues or proceeds hereof in connection with any financing or other financial arrangement; (b)transfer or assign this Agreement to an affiliate of Direct Enemy; (c) transfer or assign this Agreement to any person or entity succeeding to all or substantially all of the assets of Direct Energy;and/or(d)transfer or assign the Agreement to a licensed ARES. In the case of clauses(b),(c)or(d)preceding,any such assignee shall agree in writing to be bound it MD kin!:sena,-itv 114 7AAa 02/12/2008 08:27 FAX 847 931 5610 CITY MANAGER'S OFFICE a010/014 Attachment A to Commercial Electricity Service Agreement by the terms of this Agreement. Upon any such assignment. Customer agrees that Direct Gneray shall have no further obligations under this Agreement. F.10 Customer agrees brat Dirrct Energy may publicly disclose,through press releases or otherwise,the existence of the business relationship that is the subject of this Agreement and certain terms of the Agreement, including Usage, Term and location of the Account(s), each of which shall not be considered Confidential In formation. F.11 The invalidity or unenforceability of any of the covenants,provisions or clauses in this Agreement shall not affect the remaining portions of the this Agreement, and this Agreement shall be construed as if such invalid covenant,provision or clause had not been originally contained in this Agreement. F.12 No waiver of any provision of this Agreement or default thereunder shall be deemed to be or shall constitute a waiver of any other provision or other default, nor shall such a waiver constitute a continuing waiver unless otherwise expressly stated and agreed to by the Parties in writing. F.13 Each Party agrees to promptly execute and deliver, at the expense of the Party requesting such action, any and ail other and further Instruments and documents which may be reasonably requested in order to effectuate the transactions contemplated hereby. F.14 to the event of an emergency, outage or service need, Customer must call the EDC for the Account(s)experiencing the emergency,outage or service at the following numbers: Utility Name Customer Service Emergency/Power Number Outages Commonwealth Edison 1-877-426-6331 1-877-426-6331 F.15 Customer may contact Direct Energy's Customer Service line if Customer has specific comments, questions, disputes, or complaints toll free at 1-866-266-2084, Monday to Friday 8:00 a.m. — 8.00 p.m, EST. If Customer has a disagreement or complaint that remains unresolved after speaking with Direct Energy, Customer may call the Illinois Commerce Commission's Consumer Services Division at 1-800-524-0795 or visit their website at www.ice.state.il.us!ci/consumcrscrvices.aspx. F.16 In the event of any litigation arising out of or connected in any manner with this Agreement,any action to collect any amounts that become due from Customer pursuant to the terms hereof or any action brought by a Party to enforce its rights and remedies hereunder, the non-prevailing Party (or Customer with respect to such collection actions) shall pay the costs of the prevailing Party (or Direct Energy with respect to such collection actions), including its reacnnehk attorneys' and other legal fees and expenses incurred in connection therewith through and including the costs of appeals and appellate costs relating thereto. F.17 This Agreement shall constitute an offer for electric retail service,and this Agreement is expressly conditioned on acceptance of this Agreement by Direct Energy,which acceptance shall be evidenced by (and only by) Direct Energy's execution of this Agreement. Direct Energy may refuse to provide electric retail service to Customer subject to the requirements of applicable law, 4 IL.FP No Capacity 012608 02/12/2008 08:28 FAX 847 931 5610 CITY MANAGER'S OFFICE x011/014 Attachment B to Commercial Electricity Service Agreement ATTACHMENT B FiXED PRICING This Attachment B dated February 12`s 2008_ ("Execution Date") is a panof the Agreement between Direct Energy and City of Elgin Customer dated February 12th,2008("Agreement"). Direct Energy shall provide for each Account listed below electric retail service on a Firm basis for the full usage requirements of such Account(s) throughout the Term described below. Fixed Energy Price: The price to be paid by Customer for electric retail service provided to each Account (the "Fixed Enemy Price")shall be the per kWh price for such Account set forth below;provided, if as to any Account during any Billing Period the Actual Usage differs for any reason from the Expected Usage by greater or less than Bandwidth Percentage (as specified below under Customer's Pricing Terms)of the Expected Usage, then (a) the "Fixed Energy Price" for each kWh (or part thereof) in excess of the Bandwidth Percentage shall be equal to(as determined by Direct Energy, in Its sole discretion)either(i) the Fixed Energy Price or(ii)the Adjusted Market Price.and(b)to the extent the Actual Usage is under the Bandwidth Percentage(the"Under 1Lsaee"),Direct Energy may charge Customer an additional amount equal to the number of kWhs with respect to the Accounts (or part thereof)comprising the Under Usage multiplied by the positive difference, if any,between the Fixed Energy Price and the Deficient Market Price(but in no event less than zero). The Fixed Energy Price shall exclude any capacity charges imposed by PJM and attributable to Customer's usage requirements. With respect to capacity charges. Direct Energy shall: (1) acquire on Customer's behalf capacity sufficient to meet any capacity requirements attributable to Customer's usage requirements, (2) hill Customer for any such capacity charges, and (3) collect and remit payment for such capacity charges to PJM on Customer's behalf. The Fixed Energy Price is inclusive of all non-EDC charges other than capacity,Taxes and Non-Recurring Charges. Customer's Facilities Account Service Address Billing Address EDC Meter y Number 0630098001 1010 Wing Park Blvd 150 Dexter Ct Elgin. ComEd 097120589,117741277,140463730 Elgin,IL 60123 IL 60120 2427150036 2 Slade Ave Elgin. iL �I50 Dexter Ct Elgin. ComEd 079200381.097142014 60120 IL 60120 _.._ Customer's PriringTerms Account Expected End of Fixed Energy — Bandwidth Billing Initial ' Sales Tax Number Switch Term Date Price Percentage Option Performance Exemption Date (S/kWHJ Assurance 0630098001 3/24/08 9/23/2010 0.08159 20% Dual 0 0 2427i6i . 1.4): ' ' t t 00:1.9 i°/ Q Q Q • Expected Customer Usage(kWh) Account Jan Feb Mar Apr May Jun Jul Aug ' Sep Oct Nov Dec 1 Number 0630098001 16095 18572 26056 34663 576S1 84063 104274 89205 , 63417 43163 28261 18960 2427150036 194638 169948 161046 , 125925 106297 94932 101653 98498 93858 115492 146336 184517 Any capitalized terms in this Attachment B not defined herein shall have the meaning given to such term in Section 7 or elsewhere in this Agreement. l tl FP No Caryrrity f1t9Rl1A • 02/12/2008 08:29 FAX 847 931 5610 CITY MANAGER'S OFFICE x]012/014 Attachment B to Commercial Electricity Service Agreement #N WITNESS WHEREOF.the Parties hereto have executed this Attachment. Direct Energy Services,LLC Cus + , . gal Name: City of Main �t #3y: � By: dr Printed Name: n t, Printed ame: .! : ^, :.! fi • Title: Olfud Title: VICE PRESIDENT Date: ra3 11 o (Q Date: Z l �( • 2008 It FP Kin f:atsanit y ff14,AnR