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12-39Resolution No. 12 -39 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT FOR ENERGY CONSULTING SERVICES WITH INDEPENDENT ENERGY CONSULTANTS, INC. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that David J. Kaptain, Mayor, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute an Agreement for Energy Consulting Services with Independent Energy Consultants, Inc. on behalf of the City of Elgin in connection with the electric aggregation program, a copy of which is attached hereto and made a part hereof by reference. s/ David J. Kaptain David J. Kaptain, Mayor Presented: February 22, 2012 Adopted: February 22, 2012 Vote: Yeas: 5 Nays: 0 Attest: s/ Kimberly Dewis Kimberly Dewis, City Clerk INDEPENDENT ENERGY CONSULTANTS Phone: 330 995 -2675 Toll Free: 888 862 -6060 Fax: 800 574 -4508 e t z, a l c t s- c I r =ctri c. cn rr AGREEMENT FOR ENERGY CONSULTING SERVICES This Agreement ( "Agreement ") is made and entered into as of this 22nd day of February, 2012 ( "Commencement Date'), by and between Independent Energy Consultants, Inc. (hereafter referred to as "Consultant ") and the City of Elgin, Illinois (hereafter referred to as "Client "). WHEREAS, Client is interested in reducing the overall electric cost (hereafter referred to as "Energy") and managing electric cost risk for its residents and small businesses through its Governmental Aggregation Program; and WHEREAS, Client City of Elgin has adopted an ordinance providing for a referendum on March 20, 2012, on the question of whether the city should have the authority under 20 ILCS 3855/1 -92 to arrange for the supply of electricity for its residential and small commercial retail customers who have not opted out of such aggregation program; and WHEREAS, Consultant offers Energy Consulting, Brokerage and Aggregation services that may reduce the amount and /or cost per Energy unit consumed; and WHEREAS, Consultant is Licensed by the Illinois Commerce Commission (ICC) as a Retail Electric Agent/Broker /Consultant; and WHEREAS, the Client desires to engage the Consultant to furnish certain services in connection with the Client's proposed electrical aggregation program of the City of Elgin's residential and small business electric accounts and such other energy consulting services as agreed by the parties ( "Services "). NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants herein contained, the parties hereto agree as follows: 1.0 Particulars of Consulting Services. 1.1 Electric Supply Sourcing Services 11.1 Assist in obtaining historical Energy usage data for Client's accounts 1.1.2 Review any active Energy contracts between Client and deregulated suppliers 1.1.3 Prepare account load profiles and analysis using historical consumption data 1.1.4 Assist Client in the development of Energy procurement strategies to meet their needs and risk tolerance 1.1.5 If determined to be necessary and if requested by the Client, write Customized Request for Proposals (RFPs) to solicit Energy offers for Client's government — owned accounts. This may be separate from an aggregation program and 1 of 6 INDEPENDENT ENERGY CONSULTANTS 1.1.6 1.1.7 1.1.8 1.1.9 Phone: 330 995 -2675 Toil Free: 888 862 -6060 Fax: 800 574 -4508 rr�,ii3i rlca �.�Iacarir. c:c ?rn include the use of an Internet Reverse Auction. All contact with potential Energy suppliers including pre - qualification of any that may wish to submit offers Prepare Energy cost estimates for Client's accounts vs. the alternative utility rate in effect at the time If determined to be necessary and if requested by the Client, assist with contract negotiation and closing with selected suppliers If determined to be necessary and if requested by the Client, release all necessary Client information to assist in switching Energy suppliers 1.1.10 Client is retaining Consultant to design, implement and administer an Opt -Out Governmental Aggregation Program, thus the following additional services apply: 1.1.10.1 Draft the needed resolutions and /or ordinances for legal review 1.1.10.2 Prepare educational material for Client's use prior to a ballot initiative. The material may include but not necessarily be limited to, website material, letters to the editor, newsletter articles, league of women voter's position papers, yard signs, FAQs, cable television scroll messages, etc. 1.1.10.3 Provide city staff with draft of Client's Plan of Operations and Governance and file with the ICC 1.1.10.4 Conduct 2 Public Hearings on the Plan of Operations 1.1.10.5 Assist city staff with all aspects of drafting and issuing customized requests for proposals. The terms and provisions of any such request for proposals, including, but not limited to, the proposed term of an agreement with an alternate retail energy supplier for the proposed electric aggregation program, shall be as determined and approved by the Client. 1.1.10.6 Assist city staff with evaluation of bids /proposals 1.1.10.7 Assist city staff with comparison of winning bids /proposals to ComEd rates 1.1.10.8 Assist city staff with execution of contract with alternate retail energy supplier ( "ARES "). The terms and provisions of any such contract and the award of same shall be as determined and approved by the Client. 1.1.10.9 Draft Opt -Out Notices for the selected AIRES 1.1.10.10 Assist the selected ARES with scrubbing of eligible customer list using a variety of resources including GPS technology. 1.1.10.11 Provide ongoing maintenance during the term of this Agreement. This would include reporting to community officials and the ICC, creation of press releases, FAQs, website materials, monthly newsletters, etc. 1.2 Consultant will provide these Services in the following area(s): Elgin, Illinois 2 of 6 Phone: 330 995 -2675 Toll Free: 888 862 -6060 INDEPENDENT Fax: 800 574 -4508 ENERGY CONSULTANTS naturalgas olectnc,awnl 2.0 Compensation. 2.1 Electric Supply Sourcing: 2.1.1 There is no cost to the Client. The selected alternate retail energy supplier(s) for Client's electric aggregation program are responsible for payment of Consultant's administrative fee of $0.0004 /kWh for all electricity consumed by participants in the Client's electric aggregation program. Client agrees that this fee be written in the Request For Proposal(s) for Energy supply service. Only suppliers agreeing to the administrative fee would be eligible to bid. 2.1.2 In the event the Client and the Consultant enter into a successor agreement, Consultant's administrative fee would be reduced by 10 percent for any subsequent supply offer or renegotiated transaction brokered by Consultant on behalf of the Client. The subsequent fee of $0.00036 /kWh would also be paid by the selected supplier for the subsequent program. 2.1.3 In the event City of Elgin voters do not approve a referendum to proceed with the electric aggregation, or Client decides not to pursue an electric aggregation program and no AIRES is hired, there is still no cost to the Client. 3.0 Independent Agent. 3.1 Consultant shall, at all times, during the performance of the Services be an independent agent. The parties shall not have the authority to bind, represent or commit the other as a result of this Agreement. 3.2 Nothing in this Agreement shall be deemed or construed to create a joint venture, partnership, or employee - employer relationship between the parties for any purpose and Consultant agrees to indemnify and hold harmless Client from and against any and all liability, costs, damages, expenses, fees, fines or penalties in connection with Consultant employee or Consultant contractor or agent claims of benefits, withholding obligations, payroll taxes, workers' compensation and occupational illness. 4.0 Cooperation. it is imperative that clear lines of communication and decision- making authority are established between Consultant and Client in advance of Consultant's work. Whenever possible, Client shall attempt to assign a single point of contact for gathering and disseminating information needed to facilitate Consultant's efforts and for making timely decisions within Client's organization. 5.0 Exclusive Agent. Client acknowledges that Energy suppliers will not respond with electric offers solicited by multiple agents for the same accounts. Client thereby agrees to utilize Consultant as an exclusive agent and grants exclusive rights to perform such Services, as described in and subject to the terms and conditions of this Agreement. Any energy suppliers 3 of 6 3 F Phone: 330 995 -2675 Toil Free: 888862 -6060 INDEPENDENT Fax: 800 574 -4508 ENERGY CONSULTANTS nati_rcicas- elecn`C.Cum contacting Client shall be referred to the Consultant for possible inclusion in a competitive bid process administered by the Consultant. liable for any delays 6.0 Term and Termination. 6.1 This Agreement shall be effective upon execution by both parties and shall remain in effect for the term of the specific Energy Supply Agreement entered into between the Client and the Selected AIRES prior to the expiration or termination of this Agreement. In the event City of Elgin voters do not approve a referendum to proceed with the electric aggregation, or in the event the Client decides not to pursue an electric aggregation program and no AIRES is hired, this Agreement shall terminate upon written notice of such circumstance from the Client to the Consultant 6.2 In the event the Consultant and the Client do not enter into a successor agreement for additional services after the termination of this Agreement, Client assumes all obligations to arrange for its Energy service upon termination of this Agreement. 7.0 Severability. If any provision or portion of this Agreement is for any reason held to be invalid, illegal, or unenforceable in any respect, the invalidity, illegality, or enforceability shall not affect any other provision, and this Agreement shall be equitably construed as if it did not contain the invalid, illegal or unenforceable provision. 8.0 Limitation of Liability. Neither Party shall be liable to the other for incidental, consequential, punitive, exemplary or indirect damages, lost profits or other business interruption damages, in tort, contract or otherwise. Each Party, for itself and its successors and assigns, shall indemnify and hold harmless the other Party from and against any and all claims, actions, liabilities, losses and damages, including reasonable attorney's fees, asserted by any person or persons, including employees and contractors of the indemnifying party, for property damage, personal injury or death related to the performance of this Agreement, except and to the extent caused by the negligence or intentional misconduct of the indemnified Party. 9.0 Force Maieure. Neither party shall be liable for any delays or failures in performance due to circumstances beyond their respective controls. 10.0 Confidentiality. Except for matters of public records, including the Freedom of Information Act and/or the Open Meetings Act, information already within the other party's possession prior to entering into this Agreement, and except to the extent required (through deposition, interrogatory, request for production, subpoena, civil investigative demand or similar process) by a court order, each party agrees to keep confidential all information, including pricing and any data collected hereunder, unless expressly agreed to in writing by Client and Consultant. In the event that either party becomes required, in the manner specified above, to disclose any confidential information, the disclosing party shall provide prompt written notice to the other party so that the impacted party may timely seek a protective order or other appropriate .. INDEPENDENI ENERGY CONSOLTAVTS Phone: 330 995 -2675 Toll Free: 888 862 -6060 Fax: 800 574 4508 nabiralgas- electric mm remedy. In the event that such protective order or other remedy is not obtained, the disclosing party agrees (i) to furnish only that portion of the confidential information that is required to be furnished and (ii) to exercise reasonable commercial efforts to obtain assurance that confidential treatment will be accorded such confidential treatment. 11.0 Compliance with Laws, Permits, and License Requirements. Consultant shall, at its sole cost and expense, comply with all federal, state, and local laws applicable to its work and shall procure all applicable licenses and permits necessary for the fulfillment of its obligations under this Agreement. 12.0 Assignment. Client and Consultant shall not assign or transfer, in whole or in part, this Agreement or any rights or obligations hereunder without the prior written consent of the other party, such consent not to be unreasonably withheld. All of the covenants, conditions and obligations of this Agreement shall extend to and be binding upon the permitted heirs, personal representatives, successors and assigns, respectively, of the parties hereto. 13.0 Merger of Agreement. This Agreement is an integrated agreement and contains the entire agreement regarding matters herein between the parties. No representations, warranties or promises have been made or relied upon by any party hereto other than as set forth herein. This Agreement supersedes and controls any and all prior communications between the parties or their representatives relative to matters contained herein. Any changes, modifications, or additions to this Agreement shall be made by mutual consent in writing in the form of a supplemental Agreement signed by both parties and attached hereto. 14.0 Counterparts and Execution. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. Signatures transmitted by facsimile or e -mail shall have the same legal effect as an original signature. 15.0 Notices. All notices hereunder shall be in writing and shall be delivered by certified mail, return receipt requested, or by overnight carrier to the following addresses: As to Consultant: Independent Energy Consultants, Inc. 215 W Garfield Road Suite 210 Aurora, Ohio 44202 Attention: Office Manager As to Client: City of Elgin 150 Dexter Court Elgin, Illinois 60120 Attention: City Manager With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, Illinois 60120 5of6 Phone: 330 995 -2675 Toll Free: 888 862 -6060 INDEPE NDEN7. Fax: 800 574 -4508 ENERGY CONSULTANTS n<aturalgas- electric.com 16.0 Governing Law. This Agreement shall be deemed to have been made in, and shall be construed in accordance with the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and represent that the persons whose signatures appear below are duly authorized to execute the same. Independent Energy Consultants, Inc. Consultant Print: Mar "k R. Burns Its: President City of Elgin Client Z) By: t C Mayor Print: David J. Kaptain Attest: City Clerk On: February 13 , 2012 On: February 22, 2012 F: \Legal Dept\Agreement \Consultant Agreement- Independent Energy Consultants - clean- 2- 13- 12.doc . • ;