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11 /2/2004
GAS PURCHASE AND SALES AGREEMENT
THIS AGREEMENT, made and entered as of the 1st day of December,
2004, and between THE CITY OF EVANSTON, an Illinois municipal corporation, 2100
Ridge Avenue, Evanston, Illinois 60201 (hereinafter "Buyer"), and PROLIANCE
ENERGY, an Indiana corporation, 111 Monument Circle, Indianapolis, Indiana 46204
(hereinafter "Seller'). Seller and Buyer are, collectively, "the parties".
WITNESSETH:
WHEREAS, Buyer is an end user of natural gas and desires to purchase
gas for that purpose;
WHEREAS, Seller has a supply of natural gas which can be sold and
delivered to the Buyer;
WHEREAS, Seller and Buyer are desirous of entering into an Agreement
with each other for the sale and purchase of natural gas,
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, Buyer agrees to purchase natural gas from Seller, and Seller agrees to sell
natural gas to Buyer, on the terms and conditions hereinafter set forth:
GAS PURCHASE AND SALES AGREEMENT
These Terms and Conditions set forth herein govern and are intended to facilitate
purchase and sale transactions of Gas on a Firm or Interruptible basis. The Agreement
documents shall be this Agreement, all referenced documents, RFP 05-22, and Seller's
response to the RFP. In the event of a conflict between these documents, this
Agreement shall control.
11 — QUANTITY AND QUALITY
Seller agrees to provide Buyer's requirements whether more or less than the
usage set forth in Exhibit D to RFP number 05-22. Buyer shall purchase and receive
gas hereunder to satisfy Buyer's monthly contract quantities. Seller shall sell and
deliver gas to Buyer up to the stated quantity and Seller shall use its best efforts to sell
gas to Buyer in excess thereof, to the extent that Buyer's gas requirements exceed the
stated quantity. If Buyer expects any significant deviation in its requirements for gas,
either during a month or in advance of a month, Buyer shall notify Seller as soon as
possible. Significant deviation as used herein shall be defined as any variance greater
than plus or minus ten percent (±10%) from the normal usage of that period.
Measurement shall be in accordance with the American Gas Association Gas
Measurement Committee Report Number 3 Standards as determined by the last
transporting pipeline to the Chicago City Gate. The gas delivered hereunder shall be
commercially free from solid or liquid impurities that may impair its transmission, and
shall meet the quality and BTU specifications of the transporting pipeline(s).
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GAS PURCHASE AND SALES AGREEMENT
All gas to be sold and purchased hereunder shall be delivered to Buyer or
Buyer's designee at the Chicago City Gate receipt point. (hereinafter "point of delivery").
Title to gas sold and delivered hereunder shall pass to Buyer at point of delivery. Seller
shall be in control and possession of the gas and responsible for damage or injury
caused thereby until same shall have been delivered to Buyer.
IV — SUPPLY MANAGEMENT SERVICES
Seller shall monitor Buyer's gas usage, nominate gas for Buyer's account each
month sufficient to provide for Buyer's usage, and adjust daily volumes when
necessary. On a monthly basis, Seller shall provide buyer with written invoice of volume
nominated and price per the Transaction Confirmation Requirements listed below.
Buyer shall authorize Seller in writing to have such access to Buyer's LDC (Local
Distribution Company- NiCor) bills as may be needed for Seller to fulfill its obligations to
Buyer under this Agreement. Buyer shall provide written notifications of any major
changes in plant operation or equipment as soon as possible to Seller. Failure to make
such notification(s) or to grant billing access will relieve Seller of any responsibility for
penalties which may be imposed by the LDC, provided these access and notification
conditions have been met. Seiler shall perform these acts and have these
responsibilities:
1) Seller shall be responsible for and reimburse Buyer for all balancing or other
penalties which result from seller's failure to deliver the monthly contracted quantities;
and
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GAS PURCHASE AND SALES AGREEMENT
2) Seller shall receive Buyer's monthly invoice/statement from LDC and pay the
same on behalf of Buyer.
3) In the event any late charges are incurred from the LDC, Seller agrees to pay
said charge.
4) Seller shall render to Buyer a consolidated monthly statement for gas supply and
Buyer's LDC invoice/statement along with monthly Seller's invoice.
V. TRANSACTION CONFIRMATIONS,
The parties will use the following Transaction Confirmation procedure. Should
the parties come to an agreement regarding a Gas purchase and sale for a particular
Delivery Period, the the Seller shall, and Buyer may, record that agreement on a
Transaction Confirmation and communicate such Transaction Confirmation by email to
the other party by 5:00 p.m. Central Time on the date of agreement. Each party's email
address for purposes of this paragraph is set forth in Section XIII below. The parties
acknowledge that their agreement will not be binding until the exchange of
nonconflicting Transaction Confirmations or the passage of the Confirm Deadline
without objection from the receiving party, as provided below. ("Confirm Deadline" is to
be defined as: 5:00 p.m. Central Time on the second business day following the day a
Transaction Confirmation is received. If the Transaction Confirmation is time -stamped
after 5:00 p.m. Central Time, it shall be deemed received at the opening of the next
Business Day).
If a sending party's Transaction Confirmation is materially different from the
receiving party's understanding of the Agreement in price, quantity, or dates, such
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GAS PURCHASE AND SALES AGREEMENT
receiving party shall notify the sending party via the email addresses designated in the
Agreement in Section XIII, below, by the Confirm Deadline, unless such receiving party
has previously sent a Transaction Confirmation to the sending party. Other means of
notification are a courtesy and are ineffective to meet the email notification requirements
of this paragraph. The failure of the receiving party to so notify the sending party in
writing by the Confirm Deadline constitutes the receiving party's agreement to the terms
of the transaction described in the sending party's Transaction Confirmation. If there
are any material differences in price, quantity, or dates between timely sent Transaction
Confirmations governing the same transaction, then neither Transaction Confirmation
shall be binding until or unless such differences are resolved, which resolution may
include the use of any evidence that clearly resolves the differences in the Transaction
Confirmations. In the event of a conflict among the terms of (i) a binding Transaction
Confirmation, (ii) the Base Agreement, and (iii) these General Terms and Conditions,
the terms of the documents shall govern in the priority listed in this sentence.
The parties agree that each party may electronically record all telephone conversations
with respect to this Agreement between their respective employees, without any special
or further notice to the other party. Each party shall obtain any necessary consent of its
agents and employees to such recording. However, nothing herein shall be construed
as a waiver of any objection to the admissibility of such evidence.
VI — PRICE AND BILLING
Seller shall invoice Buyer for gas delivered and received in the preceding month
and for LDC delivery and account fees, providing supporting documentation as set forth
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GAS PURCHASE AND SALES AGREEMENT
in RFP -5-22, Specifications, paragraph III.D and in Exhibit D attached hereto and made
a part hereof. Buyer's bill and cutoff dates established are in relation to its City Council
meeting dates in advance for each calendar year which vary every year. Seller agrees
that Exhibit C will be amended each year with the new billing cutoff dates without the
requirement of a newly executed Agreement. If the actual quantity delivered is not
known by the billing date, billing will be prepared based on the quantity of scheduled
gas. The invoiced quantity will then be adjusted to the actual quantity on the following
month's billing or as soon thereafter as actual delivery information is available. Buyer
shall remit to the Seller the amount due according to the provisions of the Illinois Prompt
Payment Act and the attached bill cutoff date schedule, Exhibit C. Seller understands
and agrees that Buyer, as a unit of municipal government, requires prior City Council
authorization of vendor payments and accepts City's requirements for submission of its
invoices and schedules. Seller shall provide Buyer with invoices no later than two (2)
days before the cutoff dates. Buyer will submit any invoice received later than this two
(2) -day period to City Council for payment. Seiler has familiarized itself with the bill
cutoff dates prior to execution of this Agreement. Seller understands that Buyer's City
Council meets only once a month in August and December. If Seller fails to submit its
invoices to Buyer in accordance with the requirements of this paragraph, Seller will not
be paid for up to, or more than, six (6) weeks. Such occurrence is not a breach of
this Agreement.
Buyer's monthly gas price shall be equal to the sum of the Natural Gas
Intelligence first of the month Gas Price Index for Chicago City Gate via NGPL pipeline,
plus a fee of four cents (4.0¢) per dekatherm.
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GAS PURCHASE AND SALES AGREEMENT
If the invoiced party disputes the amount of any such invoice or any part thereof,
such invoiced party will pay such amount as it concedes to be correct; provided,
however, if the invoiced party disputes the amount due, it must provide supporting
documentation acceptable in industry practice to support the amount paid or disputed.
In the event the parties are unable to resolve such dispute, either party may pursue any
remedy available at law or in equity to enforce its rights pursuant to this section.
All invoices and billings shall be conclusively presumed final and accurate and all
associated claims for under- or overpayments shall be deemed waived unless such
invoices or billings are objected to in writing, with adequate explanation and/or
documentation, within one hundred eighty (180) days after the month of gas delivery.
All retroactive adjustments shall be paid in full by the party owing payment per the
Illinois Prompt Payment Act and the attached bill cutoff date schedule, Exhibit C. The
Agreement shall automatically renew from year to year for each additional year unless
terminated by either party, giving the other at least sixty (60) days prior written notice of
the intent to end the Agreement at the end of the term in which notice is given. In no
event shall this Agreement continue beyond April 30, 2009.
VII — TERM
This Agreement shall be in effect through April 30, 2005 unless sooner
terminated in accordance with the provisions hereof. Transportation gas shall be
effective upon award for nomination with delivery beginning December 1, 2004. The
term of any such renewal(s) shall begin on May Vt. For any year beyond the initial
year, the Agreement is contingent on the appropriation of sufficient funds by Buyer's
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GAS PURCHASE AND SALES AGREEMENT
City Council. Failure of the City to appropriate funds in future Agreement years shall not
constitute a breach of this Agreement.
The applicable provisions of this Agreement shall continue in effect after
termination to the extent necessary to provide for the delivery of gas for which a
Transaction Confirmation was effective prior to expiration of said sixty (60) -day period,
the balancing of gas deliveries, final billing, billing adjustments, and payments and
disposition of outstanding claims.
This Agreement shall immediately terminate any date on which federal or state
statute or regulation renders this Agreement, or the lease of transportation facilities
required to deliver gas hereunder, illegal, null, and void.
Vlll — BILLING AND PAYMENT
On or before the bill cutoff dates in the attached schedule, Exhibit C, following
delivery, Seller shall render to Buyer a consolidated statement showing the volume of
gas delivered to Buyer or Buyer's designee at the delivery point hereunder during the
preceding calendar month and the invoice amount from Buyer's LDC statement. Buyer
shall render payment to Seller according to provisions of Illinois Prompt Payment Act,
by City of Evanston check in United States currency.
Each party shall have the right at its own expense to examine and audit at a
reasonable time the log books, records, and charts or certifications of the other by an
independent accounting firm to the extent necessary to verify the accuracy of any
statement, charge, meter reading, or other computation made under or pursuant to any
of the provisions of this Agreement, except that a formal audit of accounts shall not be
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GAS PURCHASE AND SALES AGREEMENT
made more often than once each calendar year. This right to examine, audit, and to
obtain copies shall not be available with respect to proprietary information not directly
relevant to transactions under this Agreement. Any inaccuracy will be promptly
corrected when discovered, provided, however, that neither party shall be required to
maintain books, records, or charts for a period more than five (5) years following the
end of the calendar year to which they are applicable. Neither party shall have any right
to question or contest any charge or credit if the matter is not called to the attention of
the other party in writing within one hundred eighty (180) days after the end of the
calendar year in question.
IX — WARRANTY OF TITLE.
Seller hereby warrants unencumbered title to all gas purchased hereunder and
the right to sell the same, and Seller further warrants that all such gas is owned by
Seller free from all liens and adverse claims, including liens to secure payment or
production, taxes, severance taxes, and other taxes levied on Seller or on the gas
delivered hereunder. Seller at all times shall have the obligation to make, or cause to
make, settlements for all royalties due and payments to Seller's mineral and royalty
owners and to make, or cause to make, settlements with all other persons having
interest in the gas sold hereunder; and Seller agrees to indemnify and defend Buyer,
and save harmless from all suits, actions, debts, accounts, damages, costs, losses and
expenses arising out of or from adverse claims of any and all persons to title of said gas
or to royalties.
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GAS PURCHASE AND SAFES AGREEMENT
Seiler shall comply with the following insurance and indemnity requirements.
Indemnification of obligations shall survive the ending of this Agreement, regardless of
the reason for ending.
A. General:
Seller's insurance shall be from insurance companies having not less than an A
Policyholders Rating from the most recent Alfred M. Best and Co., Inc. listing
available. Certification of the insurance company's rating shall be provided prior to
contract implementation and quarterly thereafter until contract completion. Should
such rating fall below the required A level during performance of the contract, it will be
the Seller's responsibility to notify the City and provide a new bond from an insurance
company whose rating meets the City's requirements.
B. Indemnity:
Seller's insurance company shall insure the following indemnity agreement:
"Seller shall indemnify, protect, and save harmless the City of Evanston, its
agents, consultants, officials and employees, against all injuries, deaths, loss damages,
claims, patent claims, suits, judgments, costs and expenses which may in anywise
accrue against the City in consequence of the granting of this contract or which may in
anywise result therefrom, whether or not it shall be alleged or determined that the act
was caused through the negligent act or omission of the Seller or his employees, of the
subcontractor or his employees, officers, servants, or agents, if any, or of the City or its
employees, officers, servants, or agents, if any; and the Seller shall, at his own
expense, appear, defend and pay all charges of attorneys and all costs and other
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GAS PURCHASE AND SALES AGREEMENT
expenses arising therefrom or incurred in connection therewith; and, if any judgments
shall be rendered against the City in any such act, Seller shall, at his own expense,
satisfy and discharge same."
C. Seller's liability insurance:
1. Seller shall not commence work under this contract until before it has obtained all
insurance required herein and such insurance has been approved by the City's Director
of Safety and Risk Management. Nor shall Seller allow any subcontractor to commence
work until all similar insurance required of the subcontractor has been so obtained.
2. The City of Evanston shall be named as an additional insured on the policy of the
Seller for whatever the policy limits are for the Seller, but in no event shall the
Comprehensive General Liability limits be less than three million dollars
($3,000.000.00).
3. If Seller has more than one project for which he/she/it has a contract with the City
of Evanston, there shall be separate Certificates of Insurance naming the City as an
additional insured on each separate policy.
4. In the event of accidents, injuries, or unusual events, whether or not any injury
occurred, the Seller shall promptly furnish the City's Safety/Risk Management Director
with copies of all reports of such incidents.
5. Seller shall furnish one (1) copy of a certificate, with the City named as a
additional insured, showing the following minimum coverage with an insurance
company acceptable to the City's Director Safety/Risk Management.
6. Seller's certificate of insurance must provide that it will not be canceled or
reduced without thirty (30) days notice to the City.
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GAS PURCHASE AND SALES AGREEMENT
7. Seller's certificate of insurance must set forth the name, title, and telephone
number of the insurer's contact for this policy.
TYPE OF INSURANCE
Thirty (30) days notice of cancellation required
on all certificates
Commercial General Liability including:
1. Comprehensive Form
2. Premises — Operations
3. Explosion and Collapse Hazard
4. Underground Hazard
5. Products/Completed Operations Hazard
MINIMUM INSURANCE COVERAGE
CONSEQUENT DEATH
Each occurrence
$ 3,000,000
BODILY INJURY AND
PROPERTY DAMAGE
Aggregate
$ 3,000,000
6. Contractual Insurance —with an THE INSURANCE CERTIFICATE MUST STATE THAT
endorsement on the face of the certificate THE CITY OF EVANSTON IS NAMED AS
that it includes the "Indemnity" paragraph of ADDITIONAL INSURED
the specifications.
7. Broad Form Property Damage —
construction projects only.
8. Independent Contractors
9. Personal Injury
Automobile Liability — owned, non -owned, or
rented.
$ 500,000
Workmen's Compensation and Occupational As required by applicable
Diseases laws
Employer's Liability
XI — TAXES
$ 1,000,000
$ 500,000
Seller shall pay any excise, severance, production, occupation, and other taxes
of like nature levied in respect to the gas and handling thereof prior to the delivery to
Buyer. Buyer shall pay or cause to be paid all taxes and assessments with respect to
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GAS PURCHASE AND SALES AGREEMENT
the sale, delivery, and consumption of gas imposed directly upon Buyer or which Seller
may be required by law to collect from a tax-exempt Buyer with respect to gas delivered
hereunder, after its receipt by Buyer. Seller shall not pass through to Buyer any taxes
imposed by law upon Seller in connection with or as a result of this Agreement.
Buyer is a tax-exempt Illinois municipal corporation. Buyer's tax exemption
number is G9998-1750-04.
X11 — GENERAL
If either party is rendered unable, wholly or in part, by force majeure, or any other
cause of any kind not reasonably within its control, to perform or comply with any
obligation or condition of this Agreement, upon giving notice and reasonable full
particulars, as well as within a reasonable time after the occurrence of the causes relied
upon to the other party or parties, such obligation or condition shall be suspended
during the continuance of the inability so caused, and such party shall be relieved of
liability for failure to perform the same during such period, provided, however,
obligations to make payments then due for gas delivered hereunder shall not be
suspended, and the cause of suspension (other than strikes or lockouts) shall be
remedied so far as possible with reasonable dispatch. Settlement of strikes and
lockouts shall be wholly within the discretion of the party having the difficulty. The term
"force majeure" shall include, without limitation, the following enumeration: acts of God
and the public enemy; the elements; fire; accidents; breakdowns or accidents to
machinery, equipment or lines of pipe; strikes and other industrial, civil, or public
disturbance; inability to obtain materials, supplies, permits of labor; failure of supply;
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GAS PURCHASE AND SALES AGREEMENT
failure of third party transportation to receive or deliver any volumes of gas tendered by
Seller for Buyer's account; and any laws, orders, rules, regulations, acts or restraints of
any governmental body or authority, civil or military, preventing due performance; and
any other similar act or omission, event, or occurrence of the character herein defined
as constituting force majeure.
No waiver by either Buyer or Seller of any default of the other under this
Agreement shall operate as a waiver of future default, whether of like or different
character or nature.
This Agreement shall be binding upon and inure to the benefit of the successors
and assigns of Buyer and Seller. Any party hereto with prior written consent of the other
party may assign its right, title, and interest in, to, and under this Agreement, including
without limitation, any and all renewals, extensions, amendments, and/or supplements
hereto, to any individual, bank, trustee, company, or corporation as security for any
notes, bonds, or other obligations or securities of such assignor, provided, however, that
no such assignment shall in any way operate to enlarge, alter, or change any obligation
of the other party or parties hereto.
The parties agree that the interpretation of this Agreement shall be construed
under the laws of the State of Illinois, and this Agreement was prepared by all parties
hereto, and not by any party to the exclusion of the other. In the event of litigation,
venue shall be within the boundaries of Cook County, Illinois. The parties waive trial
by jury.
The Agreement sets forth the entire agreement of the parties and incorporates all
prior negotiations and understandings between the parties. No modification of this
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GAS PURCHASE AND SALES AGREEMENT
Agreement shall be effective unless evidenced in writing by an instrument of like
formality executed by both parties hereto.
XI11— NOTICES
A. Any notice, request, demand, statement, or payment given or provided for in this
Agreement, except as otherwise herein provided, shall be given in writing, delivered in
person, by First Class United States Mail, postage prepaid, return receipt requested, or
by reliable overnight courier, to the parties hereto at the following addresses:
TO SELLER: Payments: ProLiance Energy, LLC
Attn: Accounts Receivable
111 Monument Circle, Suite 2200
Indianapolis, IN 46204
Notices: ProLiance Energy, LLC
Attn: Contract Administration
111 Monument Circle, Suite 2200
Indianapolis, IN 46204
TO BUYER: Invoice and Transaction Confirmations:
Purchasing Division
The City of Evanston
Room 4101, Civic Center
2100 Ridge Avenue
Evanston, Illinois 60201
Attn: Director, Purchasing & Contracts
Facilities Management Department
The City of Evanston
Room 1450, Civic Center
2100 Ridge Avenue
Evanston, Illinois 60201
Attn: Director, Facilities Management
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GAS PURCHASE AND SALES AGREEMENT
All other notices:
Facilities Management Department
The City of Evanston
Room 1450, Civic Center
2100 Ridge Avenue
Evanston, Illinois 60201
Attn: Director, Purchasing & Contracts
with a copy to:
Law Department
The City of Evanston
Room 4400, Civic Center
2100 Ridge Avenue
Evanston, Illinois 60201
B. Notice shall be deemed to be received upon delivery in the case of personal
delivery or delivery by reliable overnight courier, and three (3) days after deposit in the
U.S. Mail, in the case of mailed notice.
C. Transaction confirmations are governed by Section V of this Agreement.
X1V — DEFAULT
If either party shall fail to remedy any default in the performance of its obligations
hereunder within ten (10) days after receipt of written notice of such default from the
other party, then the non -defaulting party shall have the right to terminate this
Agreement, at the end of said ten (10) day period, provided that such termination shall
not prejudice either party from its right to payment of any amounts due from the other
party at the time of such termination; and provided further that neither party shall be
liable to the other for any incidental or consequential damages of any kind whatsoever.
In the event Seller fails to maintain any insurance in any type or any amount, required
by paragraph X of this Agreement, Seller shall immediately cease performance upon
written notice from Buyer to do so. Seller's failure to procure required insurance within
seventy-two (72) hours of the date on which Seller is to cease performance shall, at
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GAS PURCHASE AND SALES AGREEMENT
Buyer's option, be an act of default which terminates the Agreement at the end of the
seventy-two (72) hour period. Such termination shall not prejudice either party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written. Each person whose signature appears below represents and
warrants that he or she is authorized by his or her respective principal to execute
this Agreement.
ATTEST:}�
Mary P.Worr��lerk
Date: //— z y 2004
ATTEST:
Date: 2004
THE CITY OF EVANSTON
By: ' y
Jud' A Aiello, Interim City Manager
Date: //-a y 2004
Tax ID# 45, 97257i7-;0Fr�/
PROLIANCE ENERGY
By:
Title: Sr. VP Sales and Marketing
Date: 2004
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CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement is made and entered into and effective this 10"' day of
June, 2009 (the "Effective Bate") by and between ProLiance Energy, LLC ("ProLiance"),
an Indiana Limited Liability Company, and City of 'Evanston, Illinois (" Bvanston")
/L e,,Vcollectively referred to as "Parties".
RECITALS:
WHEREAS, Evanston is requesting financial information from ProLiance for the sole
purpose of evaluating ProLiance's creditworthiness; and
WHEREAS, ProLiance desires to protect the confidential and proprietary nature of the
financial information provided to Evanston.
In consideration of mutual agreements, covenants, and conditions contained herein, the
Parties agree as follows:
1. "Confidential Information" as used in this Agreement shall mean with respect to
the Parties, all written or oral information of a financial nature, including but not
limited to, audited financial reports or other financial information which has not been
made readily available through public disclosure by ProLiance and has been acquired
directly from ProLiance and obtained as a result of City of Evanston RFP #10-37.
2. ConfdentiaUty. Evanston agrees to protect Ure Confidential Information and not to
directly or indirectly disclose the Confidential hnformation to any third party without
the previous written consent of ProLiance, The Confidential Information may be
disclosed to those officers, employees and representatives of Evanston (and if
authorized by ProLiance, consultants and agents) who have reason or need to Imow of
the Confidential Information for the purpose of enabling Evanston to assess the
creditworthiness of ProLiance and Evanston agrees to ensure that such individuals or
persons do not disclose any of the Confidential Information to third parties (whether
or not employed or affiliated with Evanston). In all cases, Evanston shall be liable for
any breach of this Agreement by any such individual, person, or affiliate regardless of
whether the Confidential Information is provided directly or indirectly.
The tern "affiliate" shall mean any company or entity which controls either directly
or indirectly Evanston, is controlled directly or indirectly by Evanston, or is affiliated
in any manner with Evanston,
The term "representative" as used fit this Agreement includes directors, officers,
shareholders, employees, agents, partners, affiliates, subsidiaries or advisors
(including, without limitation, attorneys, accountants, consultants, and financial
advisors) which receive information made available in connection with assessing
ProLiance's creditworthiness.
Page 100
3. Exclusions. The obligation of confidentiality in this Agreement shalt not apply to:
(a) information, which at the time of disclosure, is already in the public domain; (b)
information, which after disclosure hereunder, becomes part of the public domain, by
publication or otherwise, through no fault of either Parry; (c) information which can
be proven to have been known by Evanston prior to the date of this Agreement; (d)
information obtained from a third party which is in lawful possession of such
information and not under a confidentiality obligation to either Party; or (e)
information disclosed as a result of Evanston's obligation to disclose imposed by
applicable law including, but not limited to the Illinois Freedom of Information Act,
governmental regulation or legal process; provided, however, Evanston shall give
ProLiance timely notice of the subpoena or other process, as well as cooperation, so
that ProLiance may seek a protective order or other appropriate remedy to prevent
disclosure, shall disclose only such information as is required by such process, and
shall exercise its best efforts to have the confidentiality of such information protected
to the extent possible under such legal process.
4. Term. This Agreement shall be in full force and effect as the date first written above
("Effective Date") and shall continue for a period of two (2) years from the Effective
Date.
S. Governine Law and Venue. The Parties agree that this Agreement shall be
governed by and construed in accordance with the laws of the State of Illinois
exclusive of any rules with respect to conflict of laws. The venue for any dispute,
claim or cause of action arising out of or relating to this Agreement shall be Cook
County, Illinois.
6. Enforcement. In the event of a breach of this Agreement, ProLiance shall be entitled
to all available legal and equitable remedies, excluding special, consequential, or
punitive damages, and may, in addition, recover from Evanston all reasonable
attorneys' fees mourned by it in successfully obtaining any such remedy in a final,
nonappealable decision by a court of competent jurisdiction. The Parties agree and
acknowledge that any disclosure of the Confidential Information can cause
irreparable harm and that monetary damages will not be a sufficient remedy for any
actual or threatened breach of this Agreement, and therefore, ProLiance shall also be
entitled to specific performance, injunctive and other equitable relief.
Severability. Whenever possible, each provision of ttus Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if
any provision of this Agreement shall be unenforceable or invalid under applicable
law, such provision shall be, ineffective only to the extent of such unenforceability or
invalidity, and the remaining provisions of this Agreement shall continue to be
binding and in full force and effect.
8. Miscellaneous. This Agreement constitutes the entire understanding between the
Parties with respect to the subject matter herein. The failure to enforce or insist upon
compliance with any of the terms or conditions of this Agreement or the waiver of
Page 2 of
any term or condition of this Agreement shall not constitute the permanent waiver of
any term or condition of this Agreement, nor shall it prevent the Parties from
enforcing this Agreement in the event of a subsequent breach of this Agreement.
Each of this Agreement's provisions shall remain in full force and effect.
Each Party represents that it has caused this Agreement to be executed on its behalf as of
the date written below by a representative empowered to bind that Party with respect to
the undertakings and obligations contained herein.
Prol ' n ergye'Lf
By
Name: Brian C. Brown
Title: Credit Risk Ma
nage
r
Date of Signature: -1119 t 01
Pnga 3 or3
City of E ns , IIlmois
Name: RDL14fuDk 15 K li�S�S€4.L
Tithe: -T44.TEi?JM,_r/1
Date of Signature: 21-09