HomeMy WebLinkAboutElectricityMASTER AGREEMENT TO PROVIDE SERVICES TO AN AGGREGATED GROUP
BETWEEN
THE CITY OF EVANSTON, ILLINOIS
AND
CONSTELLATION NEWENERGY, INC.
�Al L 21
This Master Agreement ("Agreement"), is entered into as of this 1st day of May,
2012 ("Effective Date") by and between Constellation NewEnergy, Inc. ("Constellation
NewEnergy"), an Illinois Corporation with its principal place of business at 550 W.
Washington Blvd, Suite 300, Chicago, Illinois and The City of Evanston, an Illinois
municipality, with its principal place of business at 2100 Ridge Avenue, Evanston, Cook
County, County, Illinois ("The City of Evanston", "Evanston" or "Governmental
Aggregator"). Collectively Constellation NewEnergy and Evanston shall be referred to
collectively as the "Parties".
RECITALS
A. Constellation NewEnergy is certified by the Illinois Commerce
Commission ("ICU) as an Alternate Retail Electric Supplier ("ARES") to sell competitive
retail electric service to customers in the State of Illinois utilizing the existing
transmission and distribution systems. Constellation NewEnergy is certified by the ICC
to operate as an ARES in the service areas of Ameren Illinois Company and
Commonwealth Edison Company.
B. Constellation NewEnergy (directly or through its affiliates) is an energy
services provider with extensive experience in the provision of a broad range of energy
related services.
C. Constellation NewEnergy sells electricity and related services and
equipment ("Retail Electric Supply") to corporate authorities of municipalities or boards
of county supervisors acting as governmental aggregators of residential and small
commercial retail electrical loads located within the municipality or the unincorporated
areas of the county, as authorized by 20 ILCS 3855/1-92 et seq. ("Act").
D. Both Parties have the corporate, governmental and/or other legal
capacity(s), authority(s) and power(s) to execute and deliver this Agreement and related
agreements and to perform its obligations hereunder.
E. The City of Evanston has adopted an ordinance (the "Aggregation
Ordinance") under which it may aggregate, in accordance with the Act, residential and
small commercial retail electrical loads located within the corporate limits of the City of
Evanston for the purpose of soliciting and entering into service agreements to facilitate
for those loads the sale and purchase of Retail Electric Supply (the "Aggregation
Program").
F. Evanston duly adopted Ordinance 37-0-12, which enables the Electrical
Aggregation Program as an opt -out program under the Act and has complied with all the
requirements of the Act to operate an opt -out program.
G. By this Agreement, the City of Evanston and Constellation NewEnergy
desire to enter into a mutually beneficial energy and services provisions relationship
whereby Constellation NewEnergy shall provide Retail Electric Supply and related
administrative services ("Administrative Services") necessary to fulfill the obligations of
this Agreement.
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H. The City of Evanston desires to enter into this Agreement with
Constellation NewEnergy to provide Retail Electric Supply to applicable residential and
small commercial retail customers through the Aggregation Program.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1
GENERAL REQUIREMENTS
1.1 Governmental Aggregator Obliqations and Authoritv.
1.1.1 The Governmental Aggregator: (1) shall take all necessary action as required by
the Act to develop, adopt and maintain an Aggregation Program for all applicable
residential and small commercial retail customers, within its boundaries (the
"Aggregation Area") that the Governmental Aggregator has determined are eligible to
participate in the Aggregation Program ("Eligible Customers"); (2) shall request the
names and addresses of Eligible Customers from the electric utility that provides
residential and small commercial retail electric service in the Aggregation Area (the
"Electric Utility"); (3) shall hold and publish notice of any required public meetings
regarding the Aggregation Program; and (4) hereby authorizes Constellation
NewEnergy to contract for Retail Electric Supply with those Eligible Customers that do
not opt -out of the Aggregation Program, rescind their switch to Constellation
NewEnergy as part of their enrollment in the Aggregation Program, otherwise terminate
their participation in the Aggregation Program, or have their participation terminated by
the Governmental Aggregator, or their Retail Electric Supply terminated by Constellation
NewEnergy or the Electric Utility ("Aggregation Program Customer" or "Participating
Customer").
1.1.2 The Governmental Aggregator shall, on a best efforts basis and in a timely
manner, forward to Constellation NewEnergy all notices from the Electric Utility
concerning Participating Customers' accounts served pursuant to this Agreement,
including but not limited to verbal or written notices regarding transition costs, changes
in the terms and conditions of tariffs, rates or riders, and notices concerning the
operation and reliability of the Electric Utility's system.
1.1.3 Governmental Aggregator has the authority to designate, and has designated
Constellation NewEnergy as its ARES for the Eligible Customers for the Term of this
Agreement.
1.1.4 During the Term of this Agreement, the Governmental Aggregator hereby grants
Constellation NewEnergy the exclusive rights to provide Retail Electric Supply to the
Eligible Customers.
1.1.5 Customer Data and Load Forecast Information. Submit to Commonwealth
Edison a request for the identification of the Eligible Customers located within the
boundaries of the City of Evanston that are in the delivery class(es) that will be included
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in the Aggregation and transfer such data to Constellation NewEnergy with the
customer address information only. (Note this data is obtained by -the City of Evanston
pursuant to Commonwealth Edison's tariff, Rate GAP (hereinafter "Rate GAP") and will
be used by Constellation NewEnergy for mailing Informational Materials).
1.1.6 Service Inquiries and Service Notices to Customer. Participating Customers
may direct inquiries regarding this Agreement, and Retail Electric Supply provided
hereunder, and any electric generation supply or billing questions, to Constellation
NewEnergy at the address and phone number provided in Section 11.1, which address
and phone number shall be provided in communications with Participating Customers
regarding the Aggregation Program. Participating Customers should direct inquiries
concerning Electric Utility related emergency, power outage, wire or service
maintenance, metering, Electric Utility service billing or other similar Electric Utility
related concerns to the Electric Utility.
1.1.7 Point of Sale. Governmental Aggregator and Participating Customers
acknowledge and agree that Constellation NewEnergy shall have no responsibility for
damage to any property, or to any equipment or devices connected to the Participating
Customers' electrical system.
ARTICLE 2
CONSTELLATION NEWENERGY OBLIGATIONS
2.1 Constellation NewEnergv Obliqations.
2.1.1 Commencing on the Effective Date and during the Term, subject to the terms of
this Agreement, Constellation NewEnergy shall provide Retail Electric Supply (subject
to the terms of -the appropriate transmission and/or distribution tariffs) sufficient to serve
the total electric generation needs of the small commercial retail and residential
Aggregation Program Customers. Constellation NewEnergy shall arrange for the
delivery of Retail Electric Supply in accordance with the requirements of the
Participating Customers' respective Electric Utility and Independent System Operator
("ISO") or Regional Transmission Organization ("RTO") according to the rules,
regulations, and tariffs governing Retail Electric Supply from an alternative supplier to
the Point of Delivery, recognizing that the Electric Utility provides utility distribution
service from the Point of Delivery to the Point of Sale. To the extent that any services
or requirements are provided by the Electric Utility, Constellation NewEnergy shall not
be responsible for the provision of such services. Notwithstanding the foregoing,
Constellation NewEnergy is not responsible for the performance or failure to perform of
the provider of such transmission, distribution, or ancillary services, or the
consequences of such performance or failure to perform.
2.1.2 Constellation NewEnergy shall be responsible for all acts necessary for
Constellation NewEnergy to perform its obligations hereunder, including but not limited
to the scheduling of delivery of Retail Electric Supply hereunder.
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2.1.3 Constellation NewEnergy shall make available the fixed price, terms and
conditions of the Master Agreement to all Evanston residential and small commercial
retail customers that may become eligible to participate in the Aggregation Program and
desire to join the Aggregation Program at any time during the term of the Master
Agreement.
2.1.4 Provide the City of Evanston with reports and information reasonably required by
the City of Evanston, including reports to provide competent and reliable evidence to
support its purchase and retirement of Renewable Energy Credits ("RECS") in a
sufficient quantity to offset the non-renewable energy provided in the Mix specified in
the Price Quote. Constellation NewEnergy will provide quarterly reports showing the
number of Aggregation participants, total quantity of energy, and the Price for energy
provided to the Program as compared to the Utility default tariff services rates.
2.2 Subcontractinq. Constellation NewEnergy may not subcontract the performance
of its obligations under this Agreement.
2.3 ComNv with Governance Plan. Constellation NewEnergy shall comply with all
the terms and conditions of the Act and shall comply with the Plan of Operation and
Governance (the "Plan") adopted by The City of Evanston, a copy of said Plan is
marked as Attachment "B" and made a part hereof as if fully set forth by this reference.
Constellation NewEnergy, at its own expense, shall be fully responsible to mail out all
required enrollment and opt -out notices to Eligible Customers according to the
requirements of the Act and any other applicable law and the form of -the letter shall be
approved in advance by The City of Evanston, which approval shall not be
unreasonably withheld or delayed by The City of Evanston.
2.4 Eligible Customers that have Opted Out: After an Eligible Customer has indicated
its desire to opt -out of the Aggregation Program; the Constellation NewEnergy
acknowledges and agrees not to solicit any future business from the Eligible Customer
regarding Aggregation Program participation.
2.5 Comply with the Illinois Freedom of Information Act. Pursuant to the Illinois
Freedom of Information Act, 5 ILCS 140/7(2) ("FOIA"), records in the possession of
others whom the City has contracted with to perform a governmental function are
covered by the Act and subject to disclosure within limited statutory timeframes (five (5)
working days with a possible five (5) working day extension). Upon notification from the
City that it has received a Freedom of Information Act request that calls for records
within Constellation NewEnergy control, Constellation NewEnergy shall promptly
provide all requested records to the City so that the City may comply with the request
within the required timeframe. The City and Constellation NewEnergy shall cooperate to
determine what records are subject to such a request and whether or not any
exemptions to the disclosure of such records, or part thereof, is applicable.
Constellation NewEnergy shall indemnify and defend the City from and against all
claims arising from the City's exceptions to disclosing certain records which
Constellation NewEnergy may designate as proprietary or confidential. Compliance by
the City with an opinion or a directive from the Illinois Public Access Counselor or the
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Attorney General under FOIA, or with a decision or order of Court with jurisdiction over
the City, shall not be a violation of this Section.
ARTICLE 3
TERM AND TERMINATION
3.1 Term of Agreement and Termination.
3.1.1 This Agreement may be terminated prior to the expiration of -the Term, in
compliance with this Agreement's provisions, if: (1) a Party exercises its right under
Article 6 to terminate this Agreement; (2) Constellation NewEnergy fails to maintain its
ICC Certification; or (3) any of the situations described in Section 3.3 occur and Parties
are unable to mutually negotiate modification(s) to the Agreement so that the adversely -
affected Party may be restored to a reasonably similar economic position that the
adversely -affected Party would have been in but for the occurrence of the events set
forth in Section 3.3. Otherwise, the Agreement shall terminate upon the expiration of
this Agreement's Term.
3.1.2 Term of Enrollment. Participating Customers shall remain enrolled in the
Aggregation Program until the Participating Customer exercises the right to opt -out, or
they otherwise terminate their participation in the Aggregation Program, their
participation in the Aggregation Program is terminated by -the Governmental Aggregator,
their Retail Electric Supply is terminated by Constellation NewEnergy or the Electric
Utility, or their electric service is terminated by the Electric Utility or until this
Aggregation Program is terminated, whichever occurs first.
3.2 Interaction Between Termination Dates of this Agreement and Contracts with the
Participating Customer. Participating Customers initially enrolled in the Aggregation
Program shall receive Retail Electric Supply at the rate(s) set forth in this Agreement. If
this Agreement is terminated prior to the end of the Term due to a Regulatory Event,
then Retail Electric Supply will terminate early and the Participating Customers will be
switched to the applicable tariff services provided by the Electric Utility as required by
220 ILCS 5/16-103 and defined by its rates on file with the ICC pursuant to 220 ILCS
5/6 et seq. ("Tariff Service") in accord with the standard switching rules and applicable
notices. If this Agreement is terminated pursuant to the terms of Article 6, the Retail
Electric Supply will terminate early and the Participating Customers may choose
another ARES Provider or will be switched to the Tariff Service in accord with the
standard switching rules and applicable notices. The Participating Customers
agreements with the Supplier cannot be automatically renewed after the expiration of
the Term. In the event that the Term expires and a new Agreement with an ARES is not
in place, the Participating Customers will revert to ComEd as the supplier of the service.
3.3 Regulatory Contingencies.
3.3.1 Regulatory Events. The following, as well as the events described in Section
3.3.3 herein, will constitute a "Regulatory Event" governing the rights and obligations of
the Parties under this Agreement:
(i) Illegality. If, due to the issuance of an order, or adoption of, or change in, any
applicable law, rule, or regulation, or in the interpretation of any applicable law, rule, or
regulation, by any judicial, regulatory, adrninistrative or government authority with
competent jurisdiction, it becomes unlawful for a Party to perform any obligation under
this Agreement.
(ii) Material Adverse Government Action. If (A) any regulatory agency or court
having competent jurisdiction over this Agreement requires a change to the terms of the
Agreement that materially adversely affects a Party(s), or (B) any regulatory or court
action which adversely and materially impacts a Party's ability to perform or otherwise
provide services pursuant to this Agreement.
(iii) New Taxes. If any tax or increases in such tax, or an application of such tax to a
new or different class of parties, is levied or enacted on Constellation NewEnergy and
effective after the Execution Date, except federal and state income taxes, employee
taxes or other taxes assessed against the business of Constellation NewEnergy as
opposed to the delivery of services under this Agreement.
3.3.2 Notice, Negotiation, and Early Termination. Upon the occurrence of a
Regulatory Event, the adversely affected Party shall give notice to the other Party that
such event has occurred. The Parties will mutually attempt to negotiate modification(s)
to the Agreement so that the adversely -affected Party may be restored to a reasonably
similar economic position that the adversely -affected Party would have been in but for
the occurrence of the Regulatory Event. If the Parties are unable, within thirty (30) days
of entering into negotiations, to agree upon modification(s) to this Agreement, the
adversely affected Party shall have the right, upon thirty (30) days notice, to terminate
this Agreement without liability and close out its obligations hereunder.
3.3.3 Regulatory Events Defined. Regulatory changes or rulings, legislative and
agency acts, and judicial rulings covered by preceding Section 3.3.1, include but are not
limited to: (i) material changes affecting Constellation NewEnergy's ICC Certification
applicable to this Agreement/franchise status, fees, costs, or requirements; (ii) other
material changes or clarifications of federal, state or local government certification,
licensing or franchise requirements for electric power suppliers; (iii) material changes to
existing or material new charges, fees, costs, and/or obligations, including without
limitation transmission or capacity requirements or charges, that may be imposed upon
Constellation NewEnergy by an ISO or a RTO, independent transmission provider,
federal law or government agency; (iv) material changes to existing or material new
charges, fees, costs, credits, emission allowance requirements, permitting requirements
and/or obligations associated with environmental or energy law and regulations
(including, without limitation, alternative energy requirements, carbon and greenhouse
gas, or other similar controls); and (v) other material changes to, or requirements of,
retail electric customer access or aggregation programs in a manner which will not
reasonably allow a Party or the Parties to perform economically hereunder.
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3.4 Termination Obliqations. Termination of this Agreement shall not relieve either
Party of the obligation(s) to pay amounts owed for actual performance of obligations
rendered prior to the termination of this Agreement.
3.5 Termination Notices. In the event of termination hereunder, the terminating Party
shall exercise its best efforts to communicate to the non -terminating Party the upcoming
possibility of termination. In the event that this Agreement is terminated prior to the end
of the Term, each individual Participating Customer of the Aggregation Program will be
provided written notification from the terminating Party of the termination of the
Agreement at least thirty (30) days prior to termination, and in compliance with other
regulatory or legal requirements and Participating Customers will also be notified of their
right to return to the Electric Utility or to select an alternate retail electric supplier. All
other notification(s) shall be in accordance with ICC requirements.
ARTICLE 4
ENERGY SCHEDULING, TRANSMISSION, PRICING AND DELIVERY
4.1 Schedulinq, Transmission and Delivery of Power. During the Delivery Term,
Constellation NewEnergy shall schedule Energy as required by the RTO or other
transmission provider and the Electric Utility, and shall arrange for transmission and
distribution service to the Participating Customers. Constellation NewEnergy will
arrange for necessary electric distribution and transmission rights for delivery of such
Energy to provide the Retail Electric Supply hereunder and subject to the understanding
that Constellation NewEnergy has an obligation to make deliveries to Participating
Customer as set forth in Section 2.1 except pursuant to Sections 3.3 or Article 7 of this
Agreement. Constellation NewEnergy does not take responsibility for any delivery of
services supplied by the Electric Utility or RTO, or for the consequences of the failure to
provide such services. Constellation NewEnergy shall not be responsible to
Participating Customer in the event the Electric Utility or RTO disconnects, suspends,
curtails or reduces service to Participating Customer (notwithstanding whether such
disconnection is directed by the ISO) in order to facilitate construction, installation,
maintenance, repair, replacement or inspection of any of the Electric Utility's facilities, or
to maintain the safety and reliability of the Electric Utility's electrical system, or due to
emergencies, forced outages, potential overloading of the Electric Utility's transmission
and/or distribution circuits, or Force Majeure or for any other reason permitted by the
Electric Utility's tariff or any other acts or omissions of the Electric Utility.
4.2 Pricing. During the Delivery Period, Constellation NewEnergy shall provide Retail
Electric Supply to all Participating Customers at the price set forth on the Pricing
Attachment. There will be no discount given on such charges as transmission and
ancillary services if they are identified in a separate tariff or rider approved by the ICC.
4.3 Failure of Deliverv. In the event that Constellation NewEnergy fails to schedule
all or part of the Retail Electric Supply as set forth herein and Constellation
NewEnergy's failure is not due to a Force Majeure Event, and a Participating Customer
is required to obtain and pays for Tariff Service or other Energy supply arrangement
necessary to cure such Energy deficiency, Constellation NewEnergy shall reimburse
Participating Customer, on the later of ten (10) days after receipt of invoice or the date
payment would otherwise be due to Constellation NewEnergy, an amount determined
by multiplying (a) the aggregate deficiency in the Retail Electric Supply by (b) the
Replacement Price. IN THE EVENT OF CONSTELLATION NEWENERGY'S FAILURE
TO PERFORM DUE TO A NON -FORCE MAJEURE EVENT, CONSTELLATION
NEWENERGY'S OBLIGATION TO PAY SUCH AMOUNT DURING THE PERIODS OF
NON -DELIVERY SHALL BE THE GOVERNMENT AGGREGATOR'S AND THE
PARTICIPATING CUSTOMERS' SOLE REMEDY FOR CONSTELLATION
NEWENERGY'S FAILURE TO DELIVER ENERGY PURSUANT TO THE TERMS OF
THIS AGREEMENT.
ARTICLE 5
BILLING AND PAYMENTS
5.1 Additional Costs. In addition to the pricing described in Section 4.2 and the
Pricing Attachment, Constellation NewEnergy will charge Participating Customers for
any and all fees, costs, and obligations imposed by an ISO or a RTO on Constellation
NewEnergy that are not otherwise reimbursed by the Electric Utility to Constellation
NewEnergy, regardless of whether such charges are greater than, less than, or equal to
the charges a Participating Customer currently pays for these services to the Electric
Utility ("Transmission and Ancillary Charges"). Constellation NewEnergy will pass these
Transmission and Ancillary Charges, which may be variable, through to the Participating
Customers, and Participating Customers will receive no discount or percent -off of these
Transmission and Ancillary Charges. Such pass through includes, without limitation,
the cost of Network Integration Transmission Services, Transmission Losses and
Ancillaries (as such terms are used by the ISO), distribution line losses and distribution
service charges assessed by the Electric Utility on Constellation NewEnergy and/or its
customers, and any capacity requirement imposed on Constellation NewEnergy by an
ISO or a RTO.
5.2 Billing. Billing shall be provided by the Electric Utility under a consolidated billing
format pursuant to the Electric Utility's tariff provisions and ICC rules applicable to
Participating Customer(s). If a Participating Customer fails to pay amounts due within
the specified time period for said payments in accord with the Electric Utility's tariff and
ICC regulations, Constellation NewEnergy retains the right to assess late payment fees
on, or deem such non-payment a default of Participating Customer for purposes of
Section 6.1.1 of this Agreement. Constellation NewEnergy may not convert
Participating Customer from consolidated billing to dual billing, or from dual billing to
consolidated billing if such a conversion will facilitate more timely billing, collections,
and/or payment, without the prior written consent of the City of Evanston and such
consent shall not be unreasonably withheld or delayed.
6.1 Event of Default.
ARTICLE 6
DEFAULT AND REMEDIES
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6.1.1 A "City of Evanston Event of Default" shall mean the occurrence of any of the
following and the passage of any cure period set forth therein:
(i) Any representation or warranty made by the City of Evanston in Article 9
hereunder is false or misleading in any material respect when made;
(ii) The non -excused failure to perform any material covenant or obligation set forth
in this Agreement (other than that set forth in (i) above) and such failure is not remedied
within thirty (30) days after written notice thereof unless the cure requires longer than
the thirty (30) days to effect and the City of Evanston is diligently working towards such
cure; and
6.1.2 A "Constellation NewEnergy Event of Default" shall mean the occurrence of
any of the following and the passage of any cure period set forth therein:
(i) the failure to make, when due, any undisputed payment required pursuant to this
Agreement if such failure is not remedied within ten (10) Business Days after written
notice;
(ii) any representation or warranty made by Constellation NewEnergy in Article 9
hereunder is false or misleading in any material respect when made or when deemed
made;
(iii) the non -excused failure to perform any material covenant or obligation set forth
in this Agreement (other than that set forth in (i) above and as set forth in Section 4.3) if
such failure is not remedied within thirty (30) days after written notice thereof, unless the
cure period reasonably requires more than thirty (30) days to effect and Constellation
NewEnergy is diligently working towards such cure; and
6.2 Rights and Remedies.
6.2.1 Rights and Remedies for a City of Evanston Event of Default. Subject to other
provisions of this Agreement, if the City of Evanston is the defaulting Party hereunder,
so long as such the City of Evanston Event of Default shall have occurred and be
continuing, Constellation NewEnergy shall have the right to (i) designate a date ("Early
Termination Date"), no earlier than the day such notice is effective and no later than
twenty (20) days after such notice is effective, on which this Agreement shall terminate
and to terminate this Agreement on the Early Termination Date, (ii) suspend
performance under this Agreement, and/or (iii) have all rights and remedies available in
law and equity. In addition to the foregoing remedies, Constellation NewEnergy shall
have the right to seek the remedies of specific performance of The City of Evanston's
and Participating Customers' obligations hereunder and/or injunctive relief to continue to
provide Retail Electric Supply hereunder.
6.2.2 Rights and Remedies for a Constellation NewEnergy Event of Default. Subject
to other provisions of this Agreement, if Constellation NewEnergy is the defaulting Party
hereunder, so long as such Constellation NewEnergy Event of Default shall have
occurred and be continuing, the City of Evanston shall have the right to (i) designate an
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Early Termination Date, no earlier than the day such notice is effective and no later than
20 days after such notice is effective, and to terminate this Agreement on the Early
Termination Date, (ii) suspend performance under this Agreement, and/or (iii) have all
rights and remedies available in law and equity. In addition to the foregoing remedies,
the City of Evanston shall have the right to seek the remedies of specific performance
and/or injunctive relief.
6.2.3 Duty to Mitigate. Each Party agrees that it has a duty to mitigate damages and
covenants that it will use commercially reasonable efforts to minimize damages it may
incur as a result of the other Party's failure to perform pursuant to this Agreement.
ARTICLE 7
FORCE MAJEURE
7.1 Excused Failure to Complv. Neither Party shall be considered to be in default in
the performance of its obligations under this Agreement, if its failure to perform results
directly or indirectly from a Force Majeure Event. If despite its commercially reasonable
efforts, either Party is unable, wholly or in part, to meet its obligations under this
Agreement due to a Force Majeure Event, the obligations of each Party, other than the
obligation to make payments due for performance rendered hereunder, so far as they
are affected by such Force Majeure Event, shall be suspended during such period of
the Force Majeure Event. The Party claiming excuse due to a Force Majeure Event
shall exercise commercially reasonable efforts and due diligence to remove the inability
to perform as soon as reasonably possible so that the affected period shall be no longer
than that necessarily affected by the Force Majeure Event and shall exercise
commercially reasonable efforts and due diligence to mitigate the effects of the Force
Majeure Event. Nothing contained in this Section 7.1 shall be construed as requiring a
Party to settle any strike or labor dispute in which it may be involved.
7.2 Force Majeure Event. For purposes of this Agreement, a "Force Majeure Event"
shall mean any non -economic cause beyond the reasonable control of the Party
affected and shall include, but not be limited to, Acts of God, winds, floods,
earthquakes, storms, droughts, fires, pestilence, destructive lightning, hurricanes,
washouts, landslides, tornadoes and other natural catastrophes; strikes, lockouts, labor
or material shortage, or other industrial disturbances; acts of the public enemies,
epidemics, riots, civil disturbances or disobedience, sabotage, wars or blockades; the
failure of facilities, governmental actions such as necessity to comply with any court
order, law, statute, ordinance or regulation promulgated by a governmental authority, a
change in law or court order; provided, however, that any such discretionary acts, failure
to act or orders of any kind by Government Aggregator may not be asserted as a Force
Majeure Event by Government Aggregator; or any other reasonably unplanned or non-
scheduled occurrence, condition, situation or threat not covered above and not caused
by a Party's action or inaction, which renders either Party unable to perform its
obligations hereunder, provided such event is beyond the reasonable control of the
Party claiming such inability. A change in economic electric power market conditions
shall not constitute a Force Majeure Event. Failure or interruptions, including without
limitation, government ordered interruptions, on the systems of generation, transmission
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or distribution relied upon for supplying Energy under this Agreement shall constitute a
Force Majeure Event provided that Constellation NewEnergy has arranged for service
on these systems at a level of firmness as required to provide the Retail Electric Supply
agreed upon herein.
7.3 Notification. If either Party is unable to perform any of its obligations under this
Agreement due to a Force Majeure Event, then said Party shall notify -the other Party in
writing as soon as possible, but no later than seventy-two (72) hours after the start of
the Force Majeure Event. The written notice shall include a specific description of the
cause and expected duration of the Force Majeure Event.
ARTICLE 8
INDEMNIFICATION AND LIMITATION OF LIABILITY
8.1 The Constellation NewEnergy shall defend, indemnify and hold harmless
Evanston and its officers, elected and appointed officials, agents, and employees from
any and all liability, losses, or damages as a result of claims, demands, suits, actions, or
proceedings of any kind or nature, including but not limited to costs, and fees, including
attorney's fees, judgments or settlements, resulting from or arising out of any negligent
or willful act or omission on the part of the Constellation NewEnergy employees, or
agents during the performance of this Agreement. Such indemnification shall not be
limited by reason of the enumeration of any insurance coverage herein provided. This
provision shall survive completion, expiration, or termination of this Agreement.
8.2 Nothing contained herein shall be construed as prohibiting the City, or its officers,
agents, or employees, from defending through the selection and use of their own
agents, attorneys, and experts, any claims, actions or suits brought against them. The
Constellation NewEnergy shall be liable for the costs, fees, and expenses incurred in
the defense of any such claims, actions, or suits. Nothing herein shall be construed as a
limitation or waiver of defenses available to the City and employees and agents,
including but not limited to the Illinois Local Governmental and Governmental
Employees Tort Immunity Act, 745 ILCS 10/1-101 et seq.
8.3 At Evanston's option, Constellation NewEnergy must defend all suits brought
upon all such losses and must pay all costs and expenses incidental to them, but the
City has the right, at its option, to participate, at its own cost, in the defense of any suit,
without relieving Constellation NewEnergy of any of its obligations under this
Agreement. Any settlement of any claim or suit related to this Project by Constellation
NewEnergy must be made only with the prior written consent of the City of Evanston's
Corporation Counsel, if the settlement requires any action on the part of the Evanston.
8.4 To the extent permissible by law, Constellation NewEnergy waives any limits to
the amount of its obligations to indemnify, defend, or contribute to any sums due under
any Losses, including any claim by any employee of Constellation NewEnergy that may
be subject to the Illinois Workers Compensation Act, 820 ILCS 305/1 et seq. or any
other related law or judicial decision, including but not limited to, Kotecki v. Cyclops
Welding Corporation, 146 III. 2d 155 (1991). The City, however, does not waive any
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limitations it may have on its liability under the Illinois Workers Compensation Act, the
Illinois Pension Code or any other statute.
8.5 The Constellation NewEnergy shall be responsible for any losses and costs to
repair or remedy work performed under this Agreement resulting from or arising out of
any act or omission, neglect, or misconduct in the performance of its Work. Acceptance
of the work by the City will not relieve the Constellation NewEnergy of the responsibility
for subsequent correction of any such error, omissions and/or negligent acts or of its
liability for loss or damage resulting there from.
8.6 INDEMIFICATION BY EVANSTON. Evanston agree to defend, indemnify and
hold harrnless Constellation NewEnergy and its affiliates and their respective
employees, directors, managers, officers, owners, attorneys and representatives and
each of their respective successors and assigns (each, a "Constellation NewEnergy
Indemnified Person") fro and against any and all losses, damages, claims, deficiencies,
judgments, liabilities, costs and expenses, and any and all claims, proceedings, suits,
settlements or other proceedings of every nature, kind and descriptions whatsoever,
including without limitation, reasonable attorneys' fees, disbursements and court costs
(collectively, "Losses") incurred or suffered by an Constellation NewEnergy indernnified
person arising out of or relating to (A) a breach by Evanston of any of its
representations, warranties or covenants contained herein, (B) the negligence or willful
misconduct of Evanston, or (C) any improper or illegal actions or omissions of
Evanston; in each case, except to the extent such losses are determined by a court of
competent jurisdiction by final and non -appealable judgment to have resulted from the
breach of this agreement, gross negligence or willful misconduct of Constellation
NewEnergy.
8.7 LIMITATION OF LIABILITY. Except as otherwise specifically provided herein, in
no event will either party be liable under this agreement o the other party, to a customer
or third party for any incidental, indirect, special, consequential or punitive damages in
connection with or arising out of any performance or non-performance of this agreement
or any event of default, regardless of whether such claims are based upon breach of
warranty, tort (including but not limited to negligence of any degree), strict liability,
contract, operation of law, equity or otherwise.
8.8 All provisions of this Section shall survive completion, expiration, or termination
of this Agreement.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES
Representations and Warranties by Constellation NewEnergy.
9.1.1 Constellation NewEnergy hereby represents and warrants to the City of
Evanston as of the Effective Date as follows:
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(i) Constellation NewEnergy is a corporation, duly formed, validly existing and in
good standing under the laws of the State of Delaware and certified as an Alternative
Retail Electric Supply in the State of Illinois.
(ii) Constellation NewEnergy has all authorizations from any governmental authority
necessary for it to legally perform its obligations under this Agreement or will obtain
such authorizations in a timely manner prior to when any performance by it requiring
such authorization becomes due;
(iii) The execution and delivery of, and performance under, this Agreement are
within Constellation NewEnergy's powers, have been duly authorized by all necessary
action and do not violate, conflict with or breach any of -the terms or conditions in its
governing documents or any contract to which it is a party or any governmental rule
applicable to it;
(iv) This Agreement has been drily executed and delivered by Constellation
NewEnergy, and this Agreement (assuming due authorization, execution and delivery of
all Parties) constitutes legal, valid and binding obligations of Constellation NewEnergy
enforceable against it in accordance with its terms, subject to bankruptcy, insolvency,
reorganization and other laws affecting creditor's rights generally and general principles
of equity, regardless of whether such enforceability is considered in a proceeding in
equity or at law; and
(v) No Bankruptcy is pending against it or to its knowledge threatened against it.
(vi) None of the documents or other written information furnished by or on behalf of
Constellation NewEnergy to the City of Evanston and the Request for Proposal contains
any untrue statement of a material fact or ornits to state any material fact or is
misleading. Constellation NewEnergy is not in default with any order, writ, injunction or
decree of any court or federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, which would
prevent Constellation NewEnergy from complying with the terms and conditions of this
Agreement.
(vii) That there are no actions, proceedings or investigations pending or threatening
Constellation NewEnergy before any court or before any governmental department,
commission, board, agency or instrumentality, nor does Constellation NewEnergy know
or have reasonable ground to know of any basis for any such action, proceeding or
investigation against Constellation NewEnergy which would prevent Constellation
NewEnergy from complying with the terms and conditions of this Agreement.
(viii) That Constellation NewEnergy will carry, at its own expense, secure and
maintain in effect throughout the duration of this agreement, insurance against claims
for injuries to persons or damages to property which may arise from or in connection
with the performance of the Work hereunder by the Constellation NewEnergy, its
agents, representatives, employees.
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(ix) The Constellation NewEnergy shall comply with all federal, state, and local
statutes, regulations, rules, ordinances, judicial decisions, and administrative rulings
applicable to its performance under this Agreement.
9.2 Representations and Warranties by the City of Evanston.
9.2.1 Government Aggregator hereby represents and warrants to Constellation
NewEnergy as of the Effective Date as follows:
(i) The City of Evanston has complied with requirements under the Act for the City
of Evanston to provide for the aggregation of electrical loads for residential and small
commercial retail customers within the corporate limits of the City of Evanston as an
opt -out program;
(ii) The City of Evanston has all authorizations from any governmental authority
necessary for it to legally perform its obligations under this Agreement;
(iii) The execution and delivery of, and performance under, this Agreement are within
The City of Evanston's powers, have been duly authorized by all necessary action and
do not violate, conflict with or breach any of the terms or conditions in its governing
documents or any contract to which it is a party or any governmental rule applicable to
it. Neither the execution nor delivery by the City of Evanston of this Agreement nor the
consummation by the City of Evanston of the transactions contemplated hereby or
thereby does or will result a breach or violation of the Agreement establishing The City
of Evanston's Aggregation Group, or its bylaws, or any material provision of the
governance document related thereto;
(iv) This Agreement has been duly executed and delivered by the City of Evanston,
and this Agreement (assuming due authorization, execution and delivery of all Parties)
constitutes legal, valid and binding obligations of the City of Evanston, enforceable
against it in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization and similar laws affecting creditors' rights and
remedies generally, to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(v) The City of Evanston is entering into this Agreement with a full understanding of
all of the risks hereof (economic and otherwise), and it is capable of assurning and
willing to assume those risks;
(vi) None of the documents or other written information furnished by or on behalf of
the City of Evanston or Eligible Customers to Constellation NewEnergy pursuant to this
Agreement contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
contained herein or therein, in the light of the circumstances in which they were made,
not misleading;
(vii) The City of Evanston has the contractual right to enter into this Agreement, to
contract with Constellation NewEnergy to supply Retail Electric Supply and
IR
Administrative Services to meet the obligations of its Aggregation Program Customers,
and shall enforce its contractual agreements and rights.
ARTICLE 10
CONFIDENTIAL INFORMATION
10.1 Confidential Information. Constellation NewEnergy shall preserve the
confidentiality of the account information it receives as a result of the performance of its
obligations set forth herein. Constellation NewEnergy shall not disclose, use, sell or
provide customer account information to any person, firm or entity for a purpose outside
of the operation of the Program. This provision will survive the termination of the
Agreement. Notwithstanding the foregoing, Constellation NewEnergy may disclose
confidential account information as required by law, and any such disclosure shall not
be a violation of this Agreement. However, such disclosure shall not terminate the
obligations of confidentiality. Constellation NewEnergy agrees to give the City of
Evanston prompt notice of any discovery request or order, subpoena, or other legal
process requiring disclosure of any confidential account information. Constellation
NewEnergy shall provide the City of Evanston with sufficient advance notice as to give
the City of Evanston opportunity, at the Village's discretion and sole cost, to seek to
quash the subpoena, obtain a protective order or similar relief. Constellation
NewEnergy shall furnish only that portion of the confidential account information that is
required or necessary in the opinion of Constellation NewEnergy's legal counsel. In
addition,
10.2 Treatment of Information. Constellation NewEnergy shall use reasonable efforts
to obtain reasonable assurances that confidential treatment will be accorded any
account information so disclosed. All account information, shall be returned to -the City
of Evanston at the conclusion of the services provided to the Aggregation as set forth in
Section 4.6. . Notwithstanding the foregoing, nothing herein shall prevent the use by
Constellation NewEnergy of such customer account information for the purpose of
cornmunicating with its customers except for customers which have opted out of the
Aggregation Program.. In addition, nothing herein shall prevent Constellation
NewEnergy from using information in the public domain prior to its disclosure under this
Agreement.
ARTICLE 11
MISCELLANEOUS
11.1 Notices. Any notices, requests or demands regarding the services provided
under this Agreement and the Attachments shall be deemed to be properly given or
made (i) if by hand delivery, on the day and at the time on which delivered to the
intended recipient at its address set forth in this Agreement; (ii) if sent by U.S. Postal
Service mail certified or registered mail, postage prepaid, return receipt requested,
addressed to the intended recipient at its address shown below; or (iii) if by Federal
Express or other reputable express mail service, on the next Business Day after
delivery to such express service, addressed to the intended recipient at its address set
forth in this Agreement. The address of a Party to which notices or other
IV
communications shall be mailed may be changed from time to time by giving written
notice to the other Party.
Constellation NewEnergy Inc., Frank Orcel
City of Evanston:
550 West Washington Blvd. Suite 300
Chicago, IL 60661
Phone: 410-470-5828 (office)
631-926-8374 (cell)
City Manager, Wally Bobkiewicz
2100 Ridge Avenue, Room 4500
Evanston, IL 60201
Phone: 847-866-2936
Fax: 847-448-8083
With a copy to:
Corporation Counsel, W. Grant Farrar
2100 Ridge Avenue, Room 4400
Evanston, IL 60201
With a copv to:
Director of Utilities, David Stoneback
555 Lincoln Street
Evanston, IL 60201
11.2 Entire Agreement. This Agreement, including all Attachments hereto, contains
all of the terms and conditions of this Agreement reached by the Parties, and
supersedes all prior oral or written agreements with respect to this Agreement. This
Agreement may not be modified, amended, altered or supplemented, except by written
agreement signed by all Parties hereto. No waiver of any term, provision, or conditions
of this Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be, or shall constitute a waiver of any other provision hereof, whether or
not similar, nor shall such waiver constitute a continuing waiver, and no waiver shall be
binding unless executed in writing by the Party making the waiver.
11.3 Waivers. Any request for a waiver of the requirements and provisions of this
Agreement shall be in writing and must be approved in writing by the non -waiving Party.
"fhe failure of either Party to insist upon strict performance of such requirements or
17
provisions or to exercise any right under this Agreement shall not be construed as a
waiver or relinquishment of such requirements, provisions or rights.
11.4 Applicable Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Illinois. Jurisdiction and the venue for any
cause of action between the Parties relating to the terms of this Agreement shall be filed
in either the circuit court of Cook County, Illinois or the Northern District Court of Illinois.
11.5 Controllinq Provisions. In the event of any inconsistency between the terms
herein and the terms of the Attachments hereto, the provisions of the Agreement shall
control.
11.6 Severabilitv. Any provision in this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions or affecting
the validity or enforceability of such provision in any other jurisdiction. The non-
enforcement of any provision by either Party shall not constitute a waiver of that
provision nor shall it affect the enforceability of that provision or the remainder of this
Agreement.
117 Savings Clause. If any provision of this Agreement, or the application of such
provision, shall be rendered or declared invalid by a court of competent jurisdiction, or
by reason of its requiring any steps, actions, or results, the remaining parts or portions
of this Agreement shall remain in full force and effect.
11.8. Non -Assignability. This Agreement shall not be transferred or assigned by either
Party without the express written authorization of the non -assigning Party, which
authorization shall not be unreasonably withheld; provided, however, that such
authorization may be withheld upon a reasonable determination that the proposed
assignee does not have at least the same financial and technical abilities.
Notwithstanding the foregoing, Constellation NewEnergy may, without the consent of
the City of Evanston or the Participating Customers, (a) transfer, sell, pledge, encumber
or assign this Agreement or the accounts, revenues or proceeds hereof in connection
with any financing or other financial arrangement; (b) transfer or assign this Agreement
to an affiliate of Constellation NewEnergy; or (c) transfer or assign this Agreement to
any person or entity succeeding to all or a substantial portion of the assets of
Constellation NewEnergy. Upon an assignment pursuant to (b) or (c), the City of
Evanston and the Participating Customers agree that Constellation NewEnergy shall
have no further obligations regarding future performance hereunder. Either Party's
assignee shall agree in writing to be bound by the terms and conditions of this
Agreement, including the Attachments. Subject to the foregoing, this Agreement and its
Attachments shall be binding upon and inure to the benefit of any permitted successors
and assigns, to the extent permitted by law.
11.9 Forward Contract. The Parties acknowledge and agree that (a) this Agreement
constitutes a forward contract within the meaning of the United States Bankruptcy Code,
and (b) Constellation NewEnergy is a forward contract merchant.
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11. 10 Recitafs, The Parties agree and acknowledge that the prefatory statements and
recitals in this Agreement are intended to be and shall be a part of the provisions of this
Agreement,
11.11 Counteroarts, This Agreement may be executed In one or more
coon torp -grts, ch of which 11
&A —5- q11_be deemed an arlainal, but.all of which shall tociether
�c_orLstittjte one instrument.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement to i e effective
on the date first written above,
CONSTELLATION NEW '-NERGY I INC,
Signed,
Typed Name:
Tit1w "i6'k
Date: Mu 1611a,
CITY OF EVANSTON, ILUNOIS
Signed: l(j`44'uv--L-
Typed Name: W44yBobMewicz y
Title: City Manager
Date: � — " -- ( -�--
Attes.tIty Clerk
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