07-0109 Direct Energy Services Unsigned off- otog
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 meter(s)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(the"Fixed Energy Price")shall be that price as specified in Attachment B.
2.2 Taxes and Non-Recurring Charges. Non-Recurring Charges and all 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 shall 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 Energy (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 on 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
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3.2 Charges and Interest; Invoice Disputes. Customer shall pay to Direct Energy a$25 charge for
each returned payment on a Direct Energy Invoice for 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. If the 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 be required to provide
additional Performance Assurance if(a) Customer or its Credit Support Provider experiences a Ratings Event, (b)
Customer 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 MATERIAL 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 EITHER(a) TERMINATE THIS AGREEMENT AS TO THE AFFECTED ACCOUNT(S)
UPON 30 DAYS PRIOR WRITTEN NOTICE TO CUSTOMER WITHOUT PENALTY OR EARLY
TERMINATION DAMAGES TO DIRECT ENERGY (INCLUDING THE RETURN OF ANY DEPOSIT
OR SECURITY); OR (b). 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: NOTICES
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.
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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
shall be effective on the third day after it is sent. Notices to a Party shall be 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
Attn: Ruth Anne Hall Facsimile:(203)284-3913
Attn.: Robert Porter,Senior Director,C&I Sales
With a copy,which shall not constitute notice,to:
Jamey Seely
Vice President&General Counsel,U.S.
12 Greenway Plaza,Suite 600
Houston,TX 77046
Facsimile:(713)877-3682
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 meter(s) 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 5/16-102.
(e) "Billing Period"means as to an Account,the Billing Period utilized by the EDC.
(f) "Congestion Zone"means the applicable PJM 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) "Deficient Market Price"means as to an Account and the applicable Billing Period, 110%of the
Real Time Price for the same Billing Period.
(i) "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
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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 leading 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
party. Amounts used for calculating Early Termination Damages shall be adjusted for differences in transportation
costs where applicable.
(j) "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.
(k) "Effective Date"the latest of the dates that Customer and Direct Energy execute this Agreement.
(I) "Expected Usage" means as to an Account and the applicable Billing Period, the usage as set
forth in Attachment B.
(m) "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.
(n) "kWh"means kilowatt-hour.
(o) "Material Change"means as to any Account(i) 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 in excess of 15%;or(iv)
any new charge imposed on Direct Energy under applicable law in its obligation as the ARES with respect to such
Account.
(p) "Non-Recurring Charges" means any charges imposed by the EDC on an ARES on a non-
recurring basis.
(q) "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.
(r) "PJM" means the regional transmission organization known as "PJM 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.
(s) "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.1 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$ 0 /kWh administration fee.
(t) "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 rating will be used to determine whether a
Ratings Event has occurred.
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(u) "Real Time Price" means as to an Account and the applicable Billing Period, the volume
weighted average of the PJM hourly settled prices (per kWh) for the same Billing Period with respect to each
Congestion Zone in which Account is located.
(v) "Switch Date" means as to any Account the date upon which Direct Energy becomes the ARES
for such Account as established by the EDC.
(w) "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.
(x) "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 i- IrIREcT ENERGY ti'ERYICES,LLC
By: By:
Printed Name: ►+ L,o, N Printed Nal3er
Title: Title:
Date: ~ 410.1 Date:
....1— p,31
Attachments
A — Standard Terms and Conditions
B — Fixed Pricing
C Letter of Limited Agency
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Attachment A
to
Commercial Electricity Service Agreement
ATTACHMENT A
STANDARD TERMS AND CONDITIONS
A: DEFAULT AND REMEDIES
A.1 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(b)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(d)of this paragraph)and such failure is not excused by Force Majeure;or(d)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)and(d)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.
B: 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.e., 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 Party") by the other Party (the
"Disclosing Party"). Subject to the publication rights of Direct Energy set forth in F-10,"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
Party;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
C.1 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 all 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;
(c) 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
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Attachment A
to
Commercial Electricity Service Agreement
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.
D: DISCLAIMERS OF WARRANTIES;LIMITATION OF LIABILITIES; INDEMNITY
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 FOR 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
PURSUANT TO ATTACHMENT 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 any 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.
Any act or event which would qualify as both a "Material Change"and a Force Majeure Event shall be deemed a
Material Change unless such act or event is applicable only to Direct Energy and results in a 10%or more increase
in per kWh price then such act or event shall be considered a Force Majeure Event. If Direct Energy is unable to
supply Customer with electricity due to a Force Majeure Event,Direct Energy shall make reasonable efforts to assist
Customer with obtaining temporary electric service during the duration of the Force Majeure Event,but in no event
shall Direct Energy be required to incur any out-of-pocket expense in doing so.
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Attachment A
to
Commercial Electricity Service Agreement
D.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
OR IMPLIED, INCLUDING,WITHOUT LIMITATION,WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
D.4 Indemnity. Each Party(the"Indemnifying Party")shall indemnify,defend and hold harmless the
other Party from and against any and all claims, demands, suits, losses, damages, liabilities, costs and expenses
(including reasonable attorneys' fees and costs of investigation) for damage to property owned by any third party
and bodily injury to or death of persons (other than the employees of either Party, as to which each Party shall
remain responsible for its employees) to the extent caused by the gross negligence or willful misconduct of the
Indemnifying Party in connection with the execution of the terms and provisions contained in this Agreement. The
indemnification obligations of each Party under this Section D.4 shall not be limited in any manner by the existence,
non-existence or any amount of insurance or by the amount or types of damages.
E: RENEWAL;TITLE
E.1 Renewal. After the expiration of the Term, this Agreement shall be extended for successive
1 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
on 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
Customer 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 interruption,failure to deliver or deterioration of any transmission or distribution services.
F: MISCELLANEOUS PROVISIONS
F.1 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 be construed as if both Parties jointly prepared this Agreement.
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Attachment A
to
Commercial Electricity Service Agreement
F.8 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 Energy; (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
by the terms of this Agreement. Upon any such assignment, Customer agrees that Direct Energy shall have no
further obligations under this Agreement.
F.10 Customer agrees that Direct 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
Information.
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 all other and further instruments and documents which may be reasonably requested in order to
effectuate the transactions contemplated hereby.
F.14 In 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.icc.state.il.us/ci/consumerservices.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 reasonable attorneys' and other legal fees and expenses incurred in connection therewith
through and including the costs of appeals and appellate costs relating thereto.
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•
Attachment A
to
Commercial Electricity Service Agreement
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.
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Attachment B
to
Commercial Electricity Service Agreement
ATTACHMENT B
FIXED PRICING
This Attachment B dated June 27th, 2007("Execution Date")is a part of the Agreement between Direct Energy and
City of Elgin dated June 27th,2007 ("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 Energy 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 Usage"),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) bill 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#
Number
1451093012 100 Symphony Way 150 Dexter Ct ComEd 079163417
Elgin,IL 60120 Elgin,IL 60120
0445342003 SS RT 20 E McClean 150 Dexter Ct ComEd 097143904
Elgin,IL 60123 Elgin,IL 60120
ComEd
Customer's Pricing Terms
Account Expected End of Fixed Energy Bandwidth Billing Initial Sales Tax
Number Switch Term Date Price Percentage Option Performance Exemption
Date ($/kWH) Assurance
1451093012 7/13/2007 7/15/2010 0.06988 20% Dual $0 0%
0445342003 7/12/2007 7/14/2010 0.06988 20% Dual $0 0%
Dual $0 0%
Expected Customer Usage(kWh)
Account Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
Number
1451093012 263308 244681 281071 288264 325394 347484 375709 361345 324073 309266 278164 269691
0445342003 17443 16322 17359 36926 48576 51656 37330 50467 44048 50435 25732 16675
1 IL FP No Capacity 010907
Attachment B
to
Commercial Electricity Service Agreement
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.
2 IL FP No Capacity 010907
Attachment B
to
Commercial Electricity Service Agreement
IN WITNESS WHEREOF,the Parties hereto have executed this Attachment.
Direct Energy Services,LLC Customer's Legal Name: City of Elgin
By: By: a b •
n
Printed Name: Printed Name:,1t i k.„ R (A
Title: Title:
Date: Date: ( a7
3 IL FP No Capacity 010907
Attachment C
to
Commercial Electricity Service Agreement
ATTACHMENT C
LETTER OF LIMITED AGENCY AUTHORIZING CHANGE IN ELECTRIC
RETAIL SERVICE TO DIRECT ENERGY SERVICES,LLC("LETTER OF LIMITED AGENCY")
This Letter of Limited Agency confirms that the Customer is selecting Direct Energy Services, LLC ("Direct
Energy") as its Alternative Retail Electric Supplier and authorizes Direct Energy to take action and complete
documentation to switch the electric retail service for the service address(es) set forth below. If Customer is a
corporation, limited liability company, or business,by signing below I represent that I am an authorized signatory
for the Customer.
Date: June 27th,2007
Customer's Legal Name: City of Elgin
Billing Name: City of Elgin
Service Address: See Attch B City:
State: Zip:
Billing Address: 150 Dexter Ct City: Elgin
State: IL Zip: 60120
Contact Name: Ruth Anne Hall
Daytime Phone: 847-931-6104 Evening Phone:
Fax:
E-Mail Address:
Current Retail Service Provider: Commonwealth Edison
Account#: 1451093012,0445342003 Meter#: 079163417,097143904
New Retail Service Provider: Direct Energy Services,LLC
Date of Agreement with Direct Energy: June 27th,2007
Name of EDC: Commonwealth Edison
Agreed Rate to be Charged by Direct Energy: AS SPECIFIED IN THE ATTACHED COMMERCIAL
ELECTRICITY SERVICE AGREEMENT
Agreed Charge for switching Customer to electric retail service from Direct Energy: $0
Additional Charges which apply: 0
Term of the RES Agreement with Direct Energy: See Attch B
1 IL FP No Capacity 010907
Attachment C
to
Commercial Electricity Service Agreement
By signing below Customer acknowledges and understands that it is changing its electric retail service provider
from Commonwealth Edison to Direct Energy. Customer understands and acknowledges that it shall incur a charge
as described above for changing its electric retail service provider to Direct Energy.
By signing this Letter of Limited Agency, Customer authorizes Direct Energy to receive historical and on-going
usage data from the EDC identified above.
Signature of• stomer Au .rized Representative
ebo C"
Printed Name
Title
1( t a )
Date
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