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13-175 Resolution No. 13-175 RESOLUTION AUTHORIZING EXECUTION OF AGREEMENT WITH TEXZON UTILITIES FOR PROFESSIONAL SERVICES IN CONNECTION WITH SOLICITING QUALIFIED RETAIL ELECTRIC AND NATURAL GAS PROVIDERS FOR RETAIL ELECTRIC SERVICE AND RETAIL NATURAL GAS SERVICE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Sean R. Stegall, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute Agreement with Texzon Utilities on behalf of the City of Elgin for professional services in connection with soliciting qualified retail electric and natural gas providers for retail electric service and retail natural gas service, a copy of which is attached hereto and made a part hereof by reference. s/ David J. Kaptain David J. Kaptain, Mayor Presented: October 23, 2013 Adopted: October 23, 2013 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk AGREEMENT THIS AGREEMENT is made and entered into this_23 day of C<c m er , 2013, by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as "CITY") and Texzon Utilities, a Tex«.S , L.�. corporation (hereinafter referred to as "CONSULTANT"). WHEREAS, the CITY desires to engage the CONSULTANT to furnish certain professional services in connection soliciting qualified retail electric and natural gas providers to provide retail electric service and retail natural gas service to the City at certain of its select municipal facilities (hereinafter referred to as the "PROJECT"); and WHEREAS, the CONSULTANT represents that it is in compliance with Illinois Statutes relating to the licensure of agents, brokers and consultants engaged in the procurement or sale of retail electricity supply for third parties and for the services to be provided pursuant to this Agreement, and has the necessary expertise and experience to furnish such services upon the terms and conditions set forth herein below. NOW, THEREFORE, it is hereby agreed by and between the CITY and the CONSULTANT that the CITY does hereby retain the CONSULTANT for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby acknowledged to perform the services relating to the PROJECT as described herein, terms and conditions and stipulations: 1. SCOPE OF SERVICES A. All work hereunder shall be performed under the direction of the City Manager of the City, or his designee, hereinafter referred to as the "Director". B. CONSULTANT shall use its best efforts to obtain for CITY a combination of the lowest price with a provider that will supply CITY with retail natural gas and/or electricity services with responsive customer service for select municipal facilities. C. CONSULTANT shall monitor energy prices daily using market data and knowledge about the energy market, report prices to CITY on demand. D. CONSULTANT shall provide reports using retail energy supplier quoted pricing to forecast the cost of energy over the life of the proposed contract and any potential savings over the City's current energy costs, those offered by Commonwealth Edison and Nicor. E. CONSULTANT shall determine what, if any, account or contract alterations should be made prior to entering into a new energy contract. 1 2. SCHEDULE AND PROGRESS REPORTS A. The work to be performed by CONSULTANT pursuant to this Agreement will be completed in a timely manner, consistent with the time line set forth in the schedule attached hereto as Exhibit A. B. CONSULTANT shall submit to the DIRECTOR monthly a status report keyed to the project schedule. A brief narrative will be provided identifying progress, findings and outstanding issues. 3. WORK PRODUCT All work product prepared by the CONSULTANT pursuant hereto including, but not limited to, reports, plans, designs, calculations, work drawings, studies, photographs, models and recommendations shall be the property of the CITY and shall be delivered to the CITY upon request of the DIRECTOR; provided, however, that the CONSULTANT may retain copies of such work product for its records. CONSULTANT's execution of this Agreement shall constitute CONSULTANT's conveyance and assignment of all right, title and interest, including but not limited to any copyright interest, by the CONSULTANT to the CITY of all such work product prepared by the CONSULTANT pursuant to this Agreement. The CITY shall have the right either on its own or through such other consultants as determined by the CITY to utilize and/or amend such work product. Any such amendment to such work product shall be at the sole risk of the CITY. Such work product is not intended or represented to be suitable for reuse by the CITY on any extension to the PROJECT or on any other project, and such reuse shall be at the sole risk of the CITY without liability or legal exposure to the CONSULTANT. 4. PAYMENTS TO THE CONSULTANT A. The CITY will not pay the CONSULTANT for any work completed as a result of this Agreement. The compensation to be paid to the CONSULTANT for the work pursuant to this Agreement will be paid if, and when, the CITY enters into a contract during the term of this Agreement with a supplier for retail electric service and/or retail natural gas service and such compensation will be paid to the CONSULTANT by the provider of such service that is chosen and will be paid out of the usage charged by the Provider. B. CONSULTANT shall disclose in plain language in writing to the CITY the total anticipated remuneration to be paid to it by any third party over the period of the proposed underlying customer contract(s). 5. TERMINATION OF AGREEMENT Notwithstanding any other provision hereof, the CITY may terminate this Agreement at any time upon fifteen (15) days prior written notice to the CONSULTANT. In the event that this Agreement is so terminated, the CONSULTANT shall be paid for services - 2 - actually performed and reimbursable expenses actually incurred prior to termination, except that reimbursement shall not exceed the amounts set forth under Paragraph 4 above. 6. TERM A. This Agreement shall become effective upon entering into and execution of this Agreement and, unless terminated for cause or pursuant to Paragraph 5, shall be deemed concluded eighteen months after the effective date. A determination of completion shall not constitute a waiver of any rights or claims which the CITY may have or thereafter acquire with respect to any term or provision of this Agreement. 7. NOTICE OF CLAIM If the CONSULTANT wishes to make a claim for additional compensation as a result of action taken by the CITY, the CONSULTANT shall.give written notice of his claim within fifteen (15) days after occurrence of such action. No claim for additional compensation shall be valid unless so made. Any changes in the CONSULTANT's fee shall be valid only to the extent that such changes are included in writing signed by the CITY in the CITY'S sole discretion, and the CONSULTANT. Regardless of the decision of the DIRECTOR relative to a claim submitted by the CONSULTANT, all work required under this Agreement as determined by the DIRECTOR shall proceed without interruption. 8. BREACH OF CONTRACT If either party violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the other party has the right to seek such administrative, contractual or legal remedies as may be suitable to the violation or breach; and, in addition, if either party, by reason of any default, fails within fifteen (15) days after notice thereof by the other party to comply with the conditions of the Agreement, the other party may terminate this Agreement. Notwithstanding the foregoing, or anything else to the contrary in this Agreement, no action shall be commenced by the CONSULTANT against the CITY for monetary damages. CONSULTANT hereby further waives any and all claims or rights to interest on money claimed to be due pursuant to this Agreement, and waives any and all such rights to interest which it claims it may otherwise be entitled pursuant to law, including, but not limited to, the Local Government Prompt Payment Act (50 ILCS 50111, et seq.), as amended, or the Illinois Interest Act (815 ILCS 205/1, et seq.), as amended. The parties hereto further agree that any action by the CONSULTANT arising out of this Agreement must be filed within one year of the date the alleged cause of action arose or the same will be time-barred. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. �I 9. INDEMNIFICATION To the fullest extent permitted by law, CONSULTANT agrees to and shall indemnify, defend and hold harmless the CITY, its officers, employees, agents, boards and commissions from and against any and all claims, suits,judgments, costs, attorneys fees, damages or other relief, including, but not limited to, workers' compensation claims, in any way resulting from or arising out of negligent actions or omissions of the CONSULTANT in connection herewith, including negligence or omissions of employees or agents of the CONSULTANT arising out of the performance of this Agreement. In the event of any action against the CITY, its officers, employees, agents, boards or commissions, covered by the foregoing duty to indemnify, defend and hold harmless such action shall be defended by legal counsel of the CITY's choosing. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 10. NO PERSONAL LIABILITY No official, director, officer, agent or employee of the CITY shall be charged personally or held contractually liable under any term or provision of this Agreement or because of their execution, approval or attempted execution of this Agreement. 11. INSURANCE A. Comprehensive Liability. The CONSULTANT shall provide, pay for and maintain in effect, during the term of this Agreement, a policy of comprehensive general liability insurance with limits of at least $1,000,000 aggregate for bodily injury and $1,000,000 aggregate for property damage. The CONSULTANT shall deliver to the DIRECTOR a Certificate of Insurance naming the CITY as additional insured. The policy shall not be modified or terminated without thirty (30) days prior written notice to the DIRECTOR. The Certificate of Insurance shall include the contractual obligation assumed by the CONSULTANT under Paragraph 10 entitled "Indemnification". This insurance shall be primary and non-contributory to any other insurance or self-insurance programs afforded to the CITY. There shall be no endorsement or modification of this insurance to make it excess over other available insurance. B. Comprehensive Automobile Liability. Comprehensive Automobile Liability Insurance covering all owned, non-owned and hired motor vehicles with limits of not less than $500,000 per occurrence for bodily injury and/or property damage. C. Combined Single Limit Policy. The requirements for insurance coverage for the general liability and auto exposures may be met with a combined single limit of $1,000,000 per occurrence subject to a $1,000,000 aggregate. - 4 - \I D. ofessional Liability. The CONSULTANT shall carry C ANT's Profess' Liability Insurance covering cla' u tmg from error, omissions or negligent ac a combined e limit of not less than $1,000,000 per claim. A Certificate of be submitted to the DIRECTOR as evidence o l no rance protection. The policy sha inated out thirty (30) days prior written notice to the DIRECTOR. 12. INTENTIONALLY OMITTED. 13. NONDISCRIMINATION In all hiring or employment made possible or resulting from this Agreement, there shall be no discrimination against any employee or applicant for employment because of sex, age, race, color, creed, national origin, marital status, of the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification, and this requirement shall apply to, but not be limited to, the following: employment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex, race, color, creed, national origin, age except minimum age and retirement provisions, marital status or the presence of any sensory, mental or physical handicap. Any violation of this provision shall be considered a violation of a material provision of this Agreement and shall be grounds for cancellation, termination or suspension, in whole or in part, of the Agreement by the CITY. 14. ASSIGNMENT AND SUCCESSORS This Agreement and each and every portion thereof shall be binding upon the successors and the assigns of the parties hereto; provided, however, that no assignment shall be made without the prior written consent of the CITY. 15. DELEGATIONS AND SUBCONTRACTORS Any assignment, delegation or subcontracting shall be subject to all the terms, conditions and other provisions of this Agreement and the CONSULTANT shall remain liable to the CITY with respect to each and every item, condition and other provision hereof to the same extent that the CONSULTANT would have been obligated if it had done the work itself and no assignment, delegation or subcontract had been made. Any proposed subcontractor shall require the CITY's advanced written approval. 16. NO CO-PARTNERSHIP OR AGENCY This Agreement shall not be construed so as to create a partnership, joint venture, employment or other agency relationship between the parties hereto. - 5 - � I 17. SEVERABILITY The parties intend and agreed that, if any paragraph, sub-paragraph, phrase, clause or other provision of this Agreement, or any portion thereof, shall be held to be void or otherwise unenforceable, all other portions of this Agreement shall remain in full force and effect. 18. HEADINGS The headings of the several paragraphs of this Agreement are inserted only as a matter of convenience and for reference and in no way are they intended to define, limit or describe the scope of intent of any provision of this Agreement, nor shall they be construed to affect in any manner the terms and provisions hereof or the interpretation or construction thereof. 19. MODIFICATION OR AMENDMENT This Agreement and its attachments constitutes the entire Agreement of the parties on the subject matter hereof and may not be changed, modified, discharged or extended except by written amendment duly executed by the parties. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly executed amendment hereof, or change order as herein provided. 20. APPLICABLE 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. 21. NEWS RELEASES The CONSULTANT may not issue any news releases without prior approval from the DIRECTOR, nor will the CONSULTANT make public proposals developed under this Agreement without prior written approval from the DIRECTOR prior to said documentation becoming matters of public record. 22. COOPERATION WITH OTHER CONSULTANTS The CONSULTANT shall cooperate with any other consultants in the CITY'S employ or any work associated with the PROJECT. - 6 - I 23. INTERFERENCE WITH PUBLIC CONTRACTING The CONSULTANT certifies hereby that it is not barred from bidding on this contract as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 24. SEXUAL HARASSMENT As a condition of this contract, the CONSULTANT shall have written sexual harassment policies that include, at a minimum, the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing examples; D. the vendor's internal complaint process including penalties; E. the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Human Rights Commission; F. directions on how to contact the department and commission; G. protection against retaliation as provided by Section 6-101 of-the Human Rights Act. A copy of the policies shall be provided by CONSULTANT to the Department of Human Rights upon request 775 ILCS 5/2-105. 25. SUBSTANCE ABUSE PROGRAM. As a condition of this agreement, CONSULTANT shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse Prevention Public Works Project Act at 820 ILCS 265/1 et seq. A copy of such policy shall be provided to the City's Assistant City Manager prior to the entry into and execution of this agreement. 26. WRITTEN COMMUNICATIONS All recommendations and other communications by the CONSULTANT to the DIRECTOR and to other participants which may affect cost or time of completion, shall be made or confirmed in writing. The DIRECTOR may also require other recommendations and communications by the CONSULTANT be made or confirmed in writing. - 7 - 27. NOTICES All notices, reports and documents required under this Agreement shall be in writing and shall be mailed by First Class Mail, postage prepaid, addressed as follows: A. As to the CITY: City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 B. As to the CONSULTANT: 5 28. COMPLIANCE WITH LAWS Notwithstanding any other provision of this AGREEMENT it is expressly agreed and understood that in connection with the performance of this AGREEMENT that the CONSULTANT shall comply with all applicable federal, state, city and other requirements of law, including, but not limited to, the licensure of agents, brokers; and consultants engaged in the procurement of sale of retail electricity supply for third parties at 220 ILCS 5/16-115C, and any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, CONSULTANT hereby certifies, represents and warrants to the CITY that all CONSULTANT's employees and/or agents who will be providing products and/or services with respect to this AGREEMENT shall be legal residents of the United States. CONSULTANT shall also at its expense secure all permits and licenses, pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this AGREEMENT. The CITY shall have the right to audit any records in the possession or control of the CONSULTANT to determine CONSULTANT's compliance with the provisions of this paragraph. In the event the CITY proceeds with such an audit the CONSULTANT shall make available to the CITY the CONSULTANT's relevant records at no cost to the CITY. CONSULTANT shall pay any and all costs associated with any such audit. - 8 - i IN WITNESS WHEREOF, the parties hereto have entered into and executed this agreement effective as of the date and year first written above. CITY OF ELGIN: By: �� �yk�'� �� 7 Sean Stegall, City DOanager Attte/est: v �� 4e,&Z City Clerk CONSULTANT: Texzo n Q -�-, 1: A- eS By: " Name/Print: S�eV y�l+ ` S 0 Title: n gt (:\legal dept\agreement\texzon utilities-clean-7-29-13.docx I - 9 - Attachment A-Timeline for Scope of Services: August 14, 2013 - Project Begins August 14, 2013 - through such a time when the city chooses to enter into a contract for electricity,natural gas or both with a retail energy supplier. A. CONSULTANT shall monitor energy prices daily using market data and knowledge about the energy market, report prices to CITY on demand. B. CONSULTANT shall provide reports using retail energy supplier quoted pricing to forecast the cost of energy over the life of the.proposed contract and any potential savings over the City's current energy costs, those offered by Commonwealth Edison and Nicor. C. CONSULTANT shall determine what, if any, account or contract alterations should be made prior to entering into a new energy contract. From a time once a new contract has been entered into until such time that contract expires A. CONSULTANT shall provide on-going customer service to CITY (i.e. Continue to serve as a facilitator between CITY and selected retail energy supplier for the duration of the retail energy supplier contract term.) February 14, 2015 -Contract with Texzon Utilities expires TEXZOM UTILITIES CORPORATE POLICY ON DRUG AND ALCOHOL ABUSE Statement of Need Texzon Utilities (Texzon) has a strong commitment to the health, safety and welfare of its employees, their families and its customers. Widely available statistics and information establish that the incidence of drug and alcohol abuse is increasing and that the effect is devastating to lives, business and the community at large. Texzon is concerned because of the potential for abuse among some of our employees. The safety of our employees and the general public could be endangered. Our commitment to maintaining a safe and secure workplace requires a clear policy and supportive programs relating to the detection, treatment and prevention of substance abuse by employees. Goal It is the goal of Texzon to provide a safe workplace by eliminating the hazards to health and job safety created by alcohol and other drug abuse. We believe this goal to be in the best interest of our employees and our stockholders. Scope This policy applies to all employees of the company while on the job and to situations where an employee's off-the-job or off-premises conduct impairs work performance or undermines public confidence in or harms the reputation of Texzon. It is also intended to apply to employees of firms doing business with the company while on our premises. Although Texzon has no intention of intruding into the private lives of its employees, we recognize that involvement with alcohol or other drugs off the job eventually takes its toll on job performance. Our concern is to ensure that employees report to work in a condition to perform their duties safely and efficiently in the interest of their fellow workers and customers as well as themselves. Policy Statement 1. Texzon will not tolerate or condone substance abuse. It is our policy to maintain a workplace free from alcohol and other drug abuse and its effects. 2. It is the policy of Texzon that employees who engage in the sale, use, possession or transfer of illegal drugs or controlled substances, or who offer to buy or sell such substances; the use of alcohol during working hours; or the abuse of prescribed drugs will be subject to disciplinary action up to and including termination. 3. It is the policy of Texzon to commit the resources necessary to achieve and maintain a drug-free and alcohol-free environment. Texzon expects the full support of this policy by all employees and all persons doing business with the company. Procedure To provide a safe drug-free and alcohol-free working environment, Texzon will: 1. Establish definitive rules and regulations. 2. Provide increased awareness through training, education and communication on the subject of alcohol and other drug abuse. 3. Recognize that there may be employees who have an alcohol or other drug problem and stand willing to assist in the resolution of that problem by encouraging employees to seek help through employee assistance programs. In addition, Texzon may take any or all of the following actions: 1. Conduct alcohol and other drug screen tests both prospective to and during employment. 2. Inspect persons and their property in our employ or doing business with Texzon. 3. Cooperate with outside law enforcement agencies. 4. Take any other actions deemed necessary and appropriate by Texzon. Company Responsibility As a responsible employer and member of the community Texzon will: 1. Create an awareness in employees and their families of the impact of substance abuse. 2. Administer programs that consider employee rights, are positive in their intent and are within legal boundaries. 3. Support the establishment of programs to assist employees with alcohol and other drug abuse or dependency problems. 4. Utilize all channels and resources available to it to educate and increase the awareness of employees and the general public. 5. Support local and national efforts to combat alcohol and other drug abuse and its effects. Employee Responsibility Texzon believes that each employee has the responsibility to: 1. Report to work at all times free of alcohol or other drugs and their effects. 2. Participate in and support company-sponsored drug and alcohol education programs. 3. Seek and accept assistance for alcohol and other drug-abuse-related problems before job performance is affected. 4. Support company efforts to eliminate alcohol and other drug abuse among employees where it exists. Implementation Each division, subsidiary or affiliate of Texzon will be responsible for procedures, specific to its needs, in support of this policy. Each of these policies is subject to central review for consistency with Texzon policy, and will include the following minimum requirements: 1. No employee may use, possess, distribute, deliver, or be under the influence of a drug, or use or be under the influence of alcohol, while performing work for Texzon. An employee is considered to be under the influence of alcohol for the purposes of this policy if the alcohol concentration in his or her blood or breath at the time alleged as shown by analysis of the employee's blood or breath is at or above 0.02. This testing will be administered by a laboratory of Texzon's choosing that is certified for Federal Workplace Drug Testing Programs by the Substance Abuse and Mental Health Service Administration of the US Department of Health and Human services. This testing may be a minimum of 9 panel urine drug test and a test for alcohol, or a blood test, as Texzon deems necessary to meet the requirements of this policy. 2. Texzon will require that employees who perform work on public works projects submit to pre-hire, random, reasonable suspicion, and post-accident drug and alcohol testing. 3. Texzon employees who violate our drug and alcohol policy will be notified immediately by their supervisors and given written instructions on how and where to report for testing. ,I 4. An employee whose supervisor has reasonable suspicion to believe the employee is under the influence of alcohol or a drug is subject to discipline up to and including suspension, and is required to undergo an alcohol or drug test. Texzon will provide transportation for the employee to the testing facility and may send a representative to accompany the employee to the testing facility. Under no circumstances may an employee thought to be under the influence of alcohol or a drug be allowed to operate a vehicle or other equipment for any purpose. 5. Texzon considers a violation of this policy to be a serious health and safety matter. If the employee refuses to be tested, or if the test results returned show positive, the employee will be barred from work at any public works project and may be terminated by Texzon.