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R-1136 - 10/25/2011 - AGREEMENT - Resolutions Supporting DocumentsITEM 9.A.1) OF .. _ /.Y�(h•� 3e 4 4 g U Y 1 1 I= AGENDA ITEM Regular Board of Trustees Meeting of October 25, 2011 SUBJECT: Award of Contract — Electricity Supply Agreement and Related Services for the Village's Electric Aggregation Program FROM: Rania Serences, Purchasing Clerk BUDGET SOURCE/BUDGET IMPACT: N/A RECOMMENDED MOTION: I move that the Village Board award a two year contract (January 2012 — December 2013) to Integrys Energy Services, Inc., for the supply of electrical energy, and approve Resolution 2011- AG -EXI -R -1136 , a Resolution Approving and Authorizing the Execution of a Power Supply Agreement by and Between the Village of Oak Brook and Intergys Energy Services, Inc. for the Village's Electricity Aggregation Program Background/History: On September 22,2011 the Villages of Oak Brook, Grayslake and Lincolnwood ( "Villages ") posted a joint bid for the supply of full- requirements electricity for their eligible residential and small commercial retail customers. The bid notice was published in the Daily Herald and posted on the village website. Bid packages were sent to the 20 Illinois Commerce Commission approved electrical suppliers. On October 6, 2011 the Villages conducted a joint bid opening. Results of the bid opening are attached. Pricing was provided for a one year, two year, and three year contract. Electricity rates change from day to day and even from hour to hour due to electricity volume demand. Therefore, the bidding process for electricity only secures the electrical supplier rate for a 24 hour period. As such, on September 13, 2011, Village Manager David Niemeyer was given the authority to accept bids from the lowest cost electricity supplier in order to secure pricing and negotiate terms. The Villages reviewed the bid submitted by Integrys Energy Services, Inc., and confirmed that they are the lowest responsive and responsible bidder. Integrys has been providing electric and natural gas products to customers since 1994. They provide this service in 16 states. On October 6, 2011 Manager Niemeyer executed a notice of award to Integrys. The notice of award selected the two year contract pricing of 5.52 cents/kWh for residential customers and A/�, j: \worddoc\electric reliabilty committee\2011 integrys - electric aggregation program memo.doc 5.45 cents/kWh for commercial customers. The Villages of Grayslake and Lincolnwood also selected the two year contract in order to lock -in the savings for a two year period. The residential rate is 30% lower than the summer rate and 29% lower than the winter rate currently charged by ComEd. The commercial rate is 32% lower and 30% lower respectively. The rates, anticipated to take effect in January 2012, are guaranteed for two years. During the two -year term, the combined savings to residential and small business customers within the three villages is projected to exceed $6,000,000. Recommendation: That the Village Board award a two year contract (January 2012 — December 2013) to Integrys Energy Services, Inc., for the supply of electrical energy, and approve Resolution 2011 -AG- EXI -R -1136, a Resolution Approving and Authorizing the Execution of a Power Supply Agreement by and Between the Village of Oak Brook and Intergys Energy Services, Inc. for the Village's Electricity Aggregation Program. jAworddo6electric reliabilty committee\2011 integrys - electric aggregation program memo.doc !\ !f , . .. . � ���y• ft) I )(! RESOLUTION 2011 -AG-EX1 -R-1 136 A RESOLUTION APPROVING AND AUTHORIZING THE EXECUTION OF A POWER SUPPLY AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK AND INTEGRYS ENERGY SERVICES, INC. FOR THE VILLAGE'S ELECTRICITY AGGREGATION PROGRAM WHEREAS, the Village and Integrys Energy Services, Inc. ( "Integrys ") desire to execute an agreement for the supply of electricity and related services ( "Services') for the Village's Electricity Aggregation Program ( "Agreement "); and WHEREAS, the Village jointly solicited bids with the Villages of Grayslake and Lincolnwood for the Services, and Integrys was the lowest responsive and responsible bidder for the Services; and WHEREAS, the President and Board of Trustees have determined that it is in the best interests of the Village to enter into the Agreement in a final form approved by the Village Manager and the Village Attorney; NOW THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows: Section 1: Recitals. The foregoing recitals are hereby incorporated into, and made a part of, this Resolution as the findings of the President and Board of Trustees of the Village of Oak Brook. Section 2: Approval of the Agreement. The President and Board of Trustees hereby approve the Agreement by and between the Village and Integrys in substantially the form attached as Exhibit A and in a final form acceptable to the Village Manager and the Village Attorney. Section 3: Authorization and Execution of the Agreement. The Village President and Village Clerk shall be, and hereby are, authorized to execute the final Agreement on behalf of the Village after review and approval of the final form of the Agreement by the Village Manager and the Village Attorney. Section 4: Effective Date. This Resolution shall be in full force and effect upon passage and approval in the manner provided by law. APPROVED THIS 25th day of October, 2011 Ayes: Absent: Gopal G. Lalmalani Village President PASSED THIS 25`h day of October, 2011 ATTEST: Charlotte K. Pruss Village Clerk Resolution 2011- AG -EXI -R -1136 Integrys Agreement Resolution 2 EXHIBIT A AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK AND INTEGRYS ENERGY SERVICES, INC. TO PROVIDE FULL- REQUIREMENTS ELECTRICITY SUPPLY AND RELATED SERVICES FOR THE VILLAGE'S ELECTRIC AGGREGATION PROGRAM EXECUTION VERSION AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK AND INTEGRYS ENERGY SERVICES, INC. TO PROVIDE FULL - REQUIREMENTS ELECTRICITY SUPPLY AND RELATED SERVICES FOR THE VILLAGE'S ELECTRIC AGGREGATION PROGRAM This Agreement ( "Agreement"), is entered into as of this _ day of 2011 ( "Effective Date") between the VILLAGE OF OAK BROOK, an Illinois municipal corporation ( "Village ") and INTEGRYS ENERGY SERVICES, INC., a Wisconsin corporation. ( "Supplier") (each a "Party" and collectively, the "Parties"). RECITALS A. The Village has established an Electricity Aggregation Program ( "Program ") pursuant to the Aggregation Ordinance and the Aggregation Statute, and will conduct the Program as an opt -out program pursuant to the Aggregation Ordinance and the Aggregation Statute. B. In order to identify qualified suppliers of electricity for the Program, the Village conducted the Joint Power Supply Bid with the Villages of Grayslake and Lincolnwood pursuant to the Intergovernmental Agreement approved by the Village on September 13, 2011, pursuant to Village Resolution 201 1-IGA-AG-3L3C-3X-1-R-1 122. C. The Village conducted the Joint Power Supply Bid pursuant to the bid package attached to and incorporated into this Agreement as Exhibit A ( "Bid Package "). D. The Supplier was selected by the Village pursuant to its response to the Bid Package, including which response is attached to this Agreement as Exhibit B ( "Bid Response "). E. The purpose of this Agreement is for the Supplier to provide the Full - Requirements Electricity Supply Services and the Program Implementation Services (collectively, the "Services ") to all Eligible Customers who choose not to opt out of the Program throughout the Term of this Agreement at the Price set forth in Exhibit C. F. Supplier acknowledges and agrees that it has all certifications, authorizations, qualifications, and approvals necessary pursuant to the Requirements of Law to sell Full - Requirements Electricity Supply to Eligible Customers pursuant to this Agreement, including without limitation that: a. Supplier is certified by the Illinois Commerce Commission as an Retail Electric Supplier and is authorized to sell Full- Requirements Electricity Supply to customers in the State of Illinois utilizing the existing transmission and distribution systems of ComEd within the service areas of ComEd; b. Supplier is currently registered with ComEd to serve residential and small commercial customers under Rate RESS - Retail Electric Supplier Service with Rider PORCB - Purchase of Receivables and Consolidated Billing; and c. Supplier has at least three years continuous experience as a Retail Electric Supplier and has provided Full- Requirements Electricity Supply to at least 25,000 residential or commercial customers. EXECUTION VERSION G. Supplier acknowledges and agrees that it will provide the Services, including without limitation Full- Requirements Electricity Supply to all Participating Customers, pursuant to the Bid Package, the Bid Response, this Agreement, and the Requirements of Law. H. The Village desires to enter into this Agreement with Supplier to for the provision by the Supplier of Full- Requirements Electricity Supply to all Eligible Customers pursuant to the Program. AGREEMENT In consideration of the mutual covenants and agreements contained herein, the Village and the Supplier do hereby agree as follows: ARTICLE 1 RECITALS The foregoing recitals are, by this reference, fully incorporated into and made part of this Agreement. ARTICLE 2 DEFINITIONS 1. "Aggregate" means the total number of Eligible Customers that are within the jurisdictional boundaries of the Village. 2. "Aggregation Ordinance" means that certain ordinance adopted by the Village on June 14, 2011, as Ordinance Number 2011 -GL- ELEC -S -1314, authorizing the Program. 3. "Aggregation Statute" means Section 1 -92 of the Illinois Power Agency Act, 20 ILCS 3855/1 -92. 4. "Bid Package" means the bid documents provided to bidders pursuant to the Joint Power Supply Bid and attached to this Agreement as Exhibit A. 5. "Bid Response" means the response submitted by the Supplier to the Bid Package, which is attached to his Agreement as Exhibit B. 6. "Billing Services" means those services describe in Section 4.4 of this Agreement, including all subsections of Section 4.4. 7. "ComEd' means Commonwealth Edison. 8. "Compliance Services" means those services identified in Section 4.5 of this Agreement, including all subsections of Section 4.5. 9. "Confidential Information" is defined in Section 9.1 of this Agreement. 10. "Customer Information" means that certain information that the Electric Utility is required to provide to the corporate authorities of the Village pursuant to the Aggregation Statute, including without limitation those names and addresses and Electric Utility E EXECUTION VERSION account numbers of residential and small commercial retail customers in the Aggregate area that are reflected in the Electric Utility's records at the time of the request. 11. "Data" is defined in Section 9.2 of this Agreement. 12. "Electric Utility' means ComEd. 13. "Eligible Customers" means residential and small commercial electricity customers receiving Full- Requirements Electricity Supply within the Village who are eligible to participate in the Program pursuant to the Aggregation Statute and the Requirements of Law. 14. "Energy' means generated electricity. 15. "Enrollment Services" means those services described in Section 4.3 of this Agreement, including all subsections of Section 4.3. 16. "Extended Term" is defined in Section 5.1 of this Agreement. 17. "Force Majeure Event" is defined in Section 7.1 of this Agreement. 18. "Full- Requirements Electricity Supply' means all services or charges necessary to provide the continuous supply of electricity to all Participating Customers, including, without limitation, Energy, capacity, losses, renewable portfolio standard (RIPS) charges, imbalances, load factor adjustments, transmission costs, congestion charges, marginal losses, ancillary services, taxes applicable only to the Supplier, and any additional necessary services or charges. 19. "Full- Requirements Electricity Supply Services" means those portions of the Services described in Section 4.1 of this Agreement, including all subsections of Section 4.1. 20. "/CC' means the Illinois Commerce Commission 21. "Independent System Operator' or "ISO" means that certain independent system operator for the Electric Utility established pursuant to Section 16 -126 of the Public Utilities Act, 220 ILCS 5/16 -626. 22. "Intergovernmental Agreement' means that certain intergovernmental agreement by, between, and among the Village and the Villages of Grayslake and Lincolnwood approved by the Village on September 13, 2011 pursuant to Village Resolution 2011- 1 GA -AG -E L EC -EX 1 -R -1122. 23. "Joint Power Supply Bid' means the bidding process conducted by the Village to identify the Supplier. 24. "New Customers" are defined in Section 4.3.9 of this Agreement. 25. "Opt -Out Notice" means the notices described in Section 4.2.1.1 of this Agreement and provided to Eligible Customers informing them of their ability to opt -out of the Program pursuant to the Requirements of Law: EXECUTION VERSION 26. "Opt -Out Period' means the time prior to the implementation of the Program during which Eligible Customers may choose not to participate in the Program pursuant to the Requirements of Law. 27. "Opt -Out Process" is defined in Section 4.2.1 of this Agreement. 28. "Participating Customers" means those Eligible Customers who do not opt out of the Program and are not Special Billing Customers, and New Customers. 29. "Plan of Governance" or "POG" means that certain Plan of Operation and Governance approved by the Village on September 13, 2011, pursuant to the Aggregation Statute 30. "Point of Delivery" means the point specified by the Electric Utility at which the Supplier must deliver the Full- Requirements Electricity Supply to the Electric Utility for distribution to Participating Customers. 31. "Price" means the fixed price expressed in cents per kilowatt hour at which the Supplier will provide the Services as set forth in Exhibit C to this Agreement. 32. "Program" means the electricity aggregation program operated by the Village in accordance with the Aggregation Statute and authorized by the Aggregation Ordinance, to aggregate residential and small commercial retail electrical loads located within the corporate limits of the Village for the purpose of soliciting and entering into service agreements to facilitate for those loads the sale and purchase of Full- Requirements Electricity Supply and related Services. 33. "Program Implementation Services" means those portions of the Services described in Section 4.2 of this Agreement, including all subsections of Section 4.2. 34. "Requirements of Lao✓' means the Aggregation Ordinance, the Aggregation Statute, the Plan of Governance, the Intergovernmental Agreement, the rules and regulations of the ICC, the rules, regulations and tariffs applicable to the Electric Utility and the Independent System Operator, and all other applicable federal, state, and local laws, orders, rules, and regulations. 35. "Retail Electric Supplier" or "RES" means an "alternative retail electric supplier" as that term is defined in Section 16 -102 of the Public Utilities Act, 220 ILCS 5/16 -102. 36. "Services" means the Full- Requirements Electricity Supply Services, Program Implementation Services, Enrollment Services, Billing Services, and Compliance Services provided in Article 4 of this Agreement. 37. "Special Billing Customers" are defined in Section 4.3.8 of this Agreement. 38. "Supplier" means Integrys Energy Services, Inc. or the lawful successor, transferee, designee, or assignee thereof. 39. "Tariffed Service' means the applicable tariffed services provided by the Electric Utility as required by 220 ILCS 5/16 -103 at the rates established in ComEd's "Price to Compare" for the applicable rate class, as posted on the ICC website, which includes ComEd's electricity supply charge plus ComEd's transmission series charge, but does not include ComEd's purchased electricity adjustment. EXECUTION VERSION 40. "Term" is defined in Section 5.1 of this Agreement. 41. "Village" means the Village of Oak Brook. 42. "Withdrawing Customer" is defined in Section 4.3.6 of this Agreement. ARTICLE 3 PROGRAM RESPONSIBILITIES 3.1 Village Responsibilities. 3.1.1 Customer Information. The Village shall, with the assistance of the Supplier, pursuant to the Requirements of Law, obtain the Customer Information from ComEd, 3.1.2 Notices and Customer Information from ComEd. The Village shall promptly forward to Supplier the Customer Information received from ComEd and each Party will promptly provide to the other Party any notices received by that Party from ComEd concerning the accounts of Eligible or Participating Customers. 3.1.3 Submittals to ComEd. The Village shall, with the assistance of Supplier, submit to ComEd (a) the "Government Authority Aggregation Form ", (b) a list of Eligible Customers who are not Participating Customers because they have elected to opt out of the Program, and (iii) a list of all Participating Customers. 3.1.4 No Village Obligations to Provide Services. The Parties acknowledge and agree that the Village is not responsible to provide, and this Agreement shall not be construed to create any responsibility for the Village to provide, the Services to any person or entity, including without limitation the Supplier, the Electric Utility, the ISO, Eligible Customers, Special Billing Customers, or Participating Customers. 3.1.5 No Village Financial Responsibility. The Parties acknowledge and agree that this Agreement does not impose or create, and shall not be construed to create, any financial obligation of the Village to any other person or entity, including without limitation the Supplier, the Electric Utility, the ISO, Eligible Customers, Special Billing Customers, or Participating Customers. 3.2 Supplier Obligations. 3.2.1 Provision of Services. The Supplier will provide all of the Services described in Article 4 of this Agreement throughout the Term, including but not limited to the provision of sufficient Full- Requirements Electricity Supply to allow the Electric Utility to deliver and distribute uninterrupted electric service to all Participating Customers. The Supplier acknowledges and agrees that the Village is not responsible to provide, and shall not be liable to the Supplier or any Eligible Customer for any failure to provide, any Services pursuant to this Agreement. 3.2.2 Compliance with the Requirements of Law. Supplier shall comply with all Requirements of Law. 3.3 Supplier Press Releases. The Supplier may issue press releases concerning the Program that are approved in advance by the Village prior to issuance. EXECUTION VERSION ARTICLE 4 SUPPLIER SERVICES 4.1 Full Requirements Electricity Supply: The Supplier must supply the following Full - Requirements Electricity Supply Services as provided in this Section 4.1. 4.1.1 Scheduling. Transmission and Delivery of Full- Requirements Electricity Supply. 4.1.1.1 Generally. The Supplier shall take all actions necessary to arrange for the scheduling, transmission, and delivery of Full- Requirements Electricity Supply to the Electric Utility for distribution to all Participating Customers. 4.1.1.2 Scheduling. Supplier shall schedule the Full- Requirements Electricity Supply for distribution as required by the ISO and the Electric Utility. 4.1.1.3 Distribution and Transmission Rights. Supplier will arrange for necessary distribution and transmission rights necessary for the delivery of the Full - Requirements Electricity Supply to the Electric Utility hereunder. 4.1.1.4 Transmission and Delivery to Electric Utility 4.1.1.4.1 Transmission and Delivery. Supplier will cause to be transmitted and deliver to the Electric Utility at the Delivery Point sufficient Energy to provide continuous Full- Requirements Electricity Supply to all Participating Customers. The Village acknowledges that the Electric Utility, and not the Supplier, is responsible for the distribution of the Full- Requirements Electricity Supply to the Participating Customers after delivery by the Supplier to the Delivery Point, and that Supplier does not take responsibility for the distribution of the Full - Requirements Electricity Supply to Participating Customers after the Supplier provides Full- Requirements Electricity Supply to the Point of Delivery. 4.1.1.4.2 Failure of Delivery. Supplier acknowledges and agrees that if the Supplier fails to provide the Full- Requirements Electricity Supply to the Participating Customers pursuant to this Agreement, including without limitation if Supplier fails to schedule all or part of the Full- Requirements Electricity Supply for any Participating Customer, Supplier shall be solely responsible for any additional costs, charges, or fees incurred because of such failure, and shall not pass through any such additional costs, charges, or fees to Participating Customers. 4.1.2 Pricing. Except as provided in Section 4.1.3 of this Agreement, the Supplier shall receive the Price in full payment for all Services, and shall not be entitled to any additional costs, adjustments, charges, fees, or any other payments or compensation, except that the Supplier may impose an early termination fee on Withdrawing Customers pursuant to Section 4.3.5 of this Agreement. The Village acknowledges that the Price does not include sales or other consumer -based taxes applicable to Participating Customers or other taxes that are not applicable to the Supplier. 4.1.3 Pricinq Guarantee. If the rates for Tariffed Service to a particular rate class are set below the Price during the Term of this Agreement, Supplier shall have the right to 11 EXECUTION VERSION either provide the Services to Participating Customers in such rate class at a price equal to the rate for Tariffed Service or, after taking all steps necessary to return all Participating Customers to the Electric Utility, terminate this Agreement pursuant to its terms. 4.2 Program Implementation Services. The Supplier must supply the following Program Implementation Services as provided in this Section 4.2: 4.2.1 Opt -Out Process. Supplier, at its sole cost and expense, shall, with the assistance of the Village, administer the process by which Eligible Customers are provided with the opportunity to opt -out of the Program prior to its implementation (the "Opt -Out Process "), including, but not limited to, the following: 4.2.1.1 Opt -Out Notices. Supplier, at its own expense, shall be fully responsible to prepare and mail form Opt -Out Notices to all Eligible Customers as required pursuant to the Requirements of Law. Opt -Out Notices must include all information required pursuant to the Requirements of Law, including without limitation including the terms and conditions of participation in the Program, the cost to the Customer of Full - Requirements Electricity Supply under the Program, the methods by which Customers may opt out of the Program, and the length of the Opt -Out Period. The Opt -Out Notices must prominently include the toll -free telephone number and secure website described Section 4.2.1.3. The form and content of the Opt -Out Notices must be approved by the Village prior to mailing by the Supplier. In addition to the Opt -Out Notices, the Supplier will provide Participating Customers with terms and conditions for the provision of Full Requirements Electric Supply to those Participating Customers, which terms and conditions shall comply with and accurately reflect all of the requirements of this Agreement and the Requirements of Law and shall be substantially similar to the form attached in Exhibit F. 4.2.1.2 Notices to Special Billing Customers. The Village acknowledges that the Village will provide notices to Special Billing Customers concerning the Program, the Price, the rates charged to Special Billing Customers under their existing service, and the opportunity for Special Billing Customers to opt in to the Program as provided in Section 4.3.9 of this Agreement. 4.2.1.3 Toll Free Number and Secure Website. In addition to receiving completed Opt - Out Notices from Eligible Customers by mail, the Supplier shall, at is own expense, provide, operate, and maintain a toll -free number and secure website for the use of Eligible Customers to opt out of the Program. The toll -free number must be operational during normal business hours and the secure website must be operational 24 hours a day, seven days a week during the Opt -Out Period. The Opt -Out Notices must prominently include both the toll -free number and the internet address of the secure website. 4.2.1.4 Reporting. During the Opt -Out Period, Supplier is responsible for receipt of all Opt -Out Notices. Supplier must assemble, track, and report to the Village concerning the delivery and receipt of all Opt -Out Notices to and from Eligible Customers, including without limitation providing the Village with complete information concerning all Eligible Customers who choose to opt -out of the Program whether by mail, telephone, or the secure website. 4.2.2 Required Disclosures. Supplier shall provide Eligible Customers with all information required to be disclosed to Eligible Customers concerning Full- Requirements 7 EXECUTION VERSION Electricity Supply and the Program pursuant to the Requirements of Law, including without limitation all information required to be included in the Opt -Out Notices. 4.3 Enrollment Services. The Supplier must supply the following Enrollment Services as provided in this Section 4.3: 4.3.1 Record of Participating Customers. Following the completion of the Opt -Out Period, the Supplier shall be responsible to compile a complete list of all Participating Customers and those Eligible Customers who have opted out of the Program, and shall ensure that no Eligible Customers who have opted out are enrolled in the Program. 4.3.2 Enrollment. Upon completion of the Opt -Out Process and the identification of all Eligible Customers who have opted out of the Program, the Supplier shall, at its sole cost and expense, take all actions necessary to enroll Participating Customers in the Program pursuant to the Requirements of Law. 4.3.3 Term of Enrollment. Participating Customers who do not opt out of the Program shall be enrolled in the Program by the Supplier , and shall remain enrolled in the Program until the end of the Term, unless the Agreement is terminated pursuant to its terms or the Participating Customer withdraws from the Program pursuant to Section 4.3.6 of this Agreement 4.3.4 Direct Access Service Request. The Supplier shall submit a direct access service request to ComEd for each Participating Customer in compliance with the "standard switching" subsection of Rate RDS - Retail Delivery Service, in order to allow Full - Requirements Electricity Supply to commence following the Village's implementation schedule which is attached as Exhibit E. 4.3.5 Payment of Switchinq Fees. The Supplier shall reimburse Participating Customers for any switching fee imposed by the Electric Utility related to the enrollment of a Participating Customer in the Program within 30 days of receiving notice of such switching fee. The Supplier shall not be responsible to pay any switching fees imposed on Participating Customers who switch service from an alternative retail electric supplier. 4.3.6 Withdrawal by a Participating Customer. For Participating Customers who notify the Supplier after the completion of the Opt -Out Period that the Participating Customer desires to withdraw from the Program ( "Withdrawing Customer"), the Supplier must, at the direction of the Participating Customer, drop the Participating Customer from the Supplier's Full- Requirements Electricity Supply on the next available meter read, which will result in restoring the Participating Customer to Tariffed Service. The Supplier may assess an early termination fee of $50 to Withdrawing Customers, provided that no early termination fee may be assessed to Withdrawing Customers who notify the Supplier that they are withdrawing because they are moving out of the Village. 4.3.7 Customer Service Inquiries. After completion of the Opt -Out Period, Supplier must maintain and operate a toll -free telephone number and internet website for the purpose of receiving questions and comments from Participating Customers concerning the Full- Requirements Electricity Supply. The Supplier may inform Participating Customers that questions about the delivery and billing of the Full- Requirements Electricity Supply should be directed to ComEd. Customer must promptly and courteously address customer service inquiries in a manner that meets or exceeds the ICC requirements for the operation of call centers. H EXECUTION VERSION 4.3.8 Special Billing Customers. Subject to the Requirements of Law and due to the minimal and /or fixed nature of their existing billing rates, the following Eligible Customers shall not be automatically enrolled in the Program, but may subsequently elect to enroll in the Program as New Customers pursuant to Section 4.3.9 of this Agreement: a. Any Eligible Customer to which the following ComEd delivery classes are applicable: • Residential Single Family With Electric Space Heat Delivery Class • Residential Multi Family With Electric Space Heat Delivery Class b. Any Eligible Customer in the residential customer class, as described in Section 4.4.2 of this Agreement, that is taking service under the following ComEd rates: • Rate BESH — Basic Electric Service Hourly Pricing • Rate RDS — Retail Delivery Service; and c. Any eligible Customer in the commercial customer class, as described in Section 4.4.2 of this Agreement, that is taking service under the following ComEd rates: Rate BESH — Basic Electric Service Hourly Pricing Rate RDS — Retail Delivery Service. (collectively, the "Special Billing Customers "). 4.3.9 New Customers. After the commencement of the Program and the enrollment of Participating Customers, the Supplier shall, at the request of the Village or of a New Customer, as defined in this Section 4.3.9, immediately enroll the following customers in the Program and provide Full- Requirements Electricity Supply to those customers at the Price: a. Any Eligible Customer within the Village that moves to a new location within the Village; b. Any Eligible Customer that moves into an existing or new facility within the Village; C. Any Eligible Customer that previously opted out of the Program during the Opt -Out Period; and d. Any Eligible Customer that was inadvertently omitted from the list of Participating Customers and not enrolled in the Program. (collectively, the "New Customers "): 4.4 Billing Services. The Supplier must supply the following Billing Services as provided in this Section 4.4: 4.4.1 Billing Generally. Supplier shall confirm that billing to Eligible Customers will be provided by ComEd under a consolidated billing format pursuant to "Rider PORCB — Purchase of Receivables and Consolidated Billing," and pursuant to the Requirements of Law. The Village acknowledges and agrees that ComEd will bill Participating Customers for the Price of the Full- Requirements Electricity Supply as part of its billing for the distribution of such supply, and that the Supplier shall not be responsible for billing Participating Customers 10 EXECUTION VERSION 4.4.2 Customer Classes. Eligible Customers shall be categorized within either the residential or commercial customer classes according to the applicable rates under which they received electricity supply from ComEd prior to participating in the Program. 4.4.2.1 Residential Customer Class. The residential customer class shall include Participating Customers taking service from ComEd under the following rates: • Residential Single Family Without Electric Space Heat Delivery Class • Residential Multi Family Without Electric Space Heat Delivery Class • Residential Single Family With Electric Space Heat Delivery Class • Residential Multi Family With Electric Space Heat Delivery Class 4.4.2.1 Commercial Customer Class. The commercial customer class shall include those Participating Customers taking service from ComEd under the following rates: Watt -Hour Delivery Class Small Load Delivery Class 4.5 Compliance Services. The Supplier shall assist the Village in complying with any current or future Requirements of Law concerning the operation of the Program, including without limitation the provision of reports or other information as the Village may reasonably request from time to time. ARTICLE 5 TERM 5.1 Term. This Agreement commences as of the Effective Date and is for a term of twenty - four (24) consecutive monthly billing periods starting from the initial meter read date designated by the Village in consultation with the Supplier in January 2012, and expires at the end of the last day of the 24"' billing cycle for the Participating Customer(s) with the latest billing cycle. (the "Term "). The Village and the Supplier may extend the Term for additional periods of time up to 3 years for each extension, by written agreement approved and executed by each Party (each an "Extended Term "). Nothing in this Article 5 related to the Term or the possibility of agreement to an Extended Term may be construed or applied in any manner to create any expectation that any right or authority related to this Agreement granted by the Village to the Supplier will continue beyond the Term or an approved Extended Term. Notwithstanding the provisions of this Section 5.1, if the rate for Tariffed Service falls below the Price during the Term, the Supplier may terminate this Agreement after returning Participating Customers to Tariffed Service as provided in Section 4.1.3 of this Agreement. ARTICLE 6 REMEDIES AND TERMINATION 6.1 Village's General Remedies. In addition to every other right or remedy provided to the Village under this Agreement, if the Supplier fails to comply with any of the provisions of this Agreement (for reason other than a Force Majeure Event pursuant to Section 7.1 of this Agreement or a Regulatory Event pursuant to Section 7.2 of this Agreement, then the Village may give notice to the Supplier specifying that failure. The Supplier will have 15 calendar days after the date of that notice to take all necessary steps to comply fully with this Agreement, 10 EXECUTION VERSION unless (a) this Agreement specifically provides for a shorter cure period or (b) an imminent threat to the public health, safety, or welfare arises that requires a shorter cure period, in which case the notice must specify the cure period, or (c) compliance cannot reasonably be achieved within 15 calendar days but the Supplier promptly commences a cure and diligently pursues the cure to completion. If the Supplier fails to comply within that 15 -day period, or the shorter period if an imminent threat, or if the Supplier fails to promptly commence a cure and diligently pursue the cure to completion, then the Village, subject to the limits of applicable federal or State of Illinois law, may take any one or more of the following actions: a. Seek specific performance of any provision of this Agreement or seek other equitable relief, and institute a lawsuit against the Supplier for those purposes. b. Institute a lawsuit against the Supplier for breach of this Agreement and, except as provided in Section 6.3 of this Agreement, seek remedies and damages as the court may award. C. In the case of noncompliance with a material provision of this Agreement, declare this Agreement to be terminated in accordance with the following: (1) The Village will give written notice to the Supplier of the Village's intent to terminate this Agreement ( "Termination Notice "). The notice will set forth with specificity the nature of the noncompliance. The Supplier will have 30 calendar days after receipt of the notice to, object in writing to termination, to state its reasons for that objection, and to propose a remedy for the circumstances. If the Village has not received a response from the Supplier, or if the Village does not agree with the Supplier's response or any remedy proposed by the Supplier, then the Village will conduct a hearing on the proposed termination. The Village will serve notice of that hearing on the Supplier at least 10 business days prior to the hearing, specifying the time and place of the hearing and stating the Village intent to terminate this Agreement. (2) At the hearing, the Supplier will have the opportunity to state its position on the matter, present evidence, and question witnesses. Thereafter, the Village will determine whether or not this Agreement will be terminated. The hearing must be public and held on record. (3) The decision of the Village must be in writing and delivered to the Supplier by certified mail. If the rights and privileges granted to the Supplier under this Agreement are terminated, then the Supplier, within 14 calendar days after the Village's demand, must reimburse the Village for all costs and expenses incurred by the Village, including, without limitation, reasonable attorneys' fees, in connection with that termination of rights or with any other enforcement action undertaken by the Village. 6.2 Actions on Termination or Expiration of this Agreement.. This Agreement shall terminate upon the expiration of the Term or an Extended Term, as applicable (with the understanding that the expiration of service for any particular Participating Customer will be tied to that customer's billing cycle), or the Village's termination of the Agreement pursuant to Section 6.1.c. Upon termination as a result of expiration of the Term (absent agreement upon an Extended Term), or upon termination as a result of expiration of an Extended Term, as applicable, Supplier shall return Participating Customers to Tariffed Service upon expiration of the Term or Extended Term, as applicable, on the first available meter read. In the event of the Village's 11 EXECUTION VERSION termination of the Agreement prior to the end of the Term or Extended Term pursuant to Section 6.1.c, as applicable, Supplier shall return Participating Customers to Tariffed Service on the second available meter read in order to provide the opportunity for Participating Customers to identify alternate sources of electrical supply prior to returning to Tariffed Service. Participating Customers shall not be liable for any termination fee as a result of such termination or expiration in accordance with the preceding sentences of this Section 6.2. Supplier shall not be responsible to any Participating Customer for any damages or penalties resulting from the return to Tariffed Service, including claims relating to the Tariffed Service price being higher than the Price herein. 6.3 Limitation of Liability. Except for the Supplier's failure to provide Full- Requirements Electricity Supply to Participating Customers or the disclosure of Customer Information in violation of the Requirements of Law, or as otherwise specifically provided herein, in no event will either Party be liable to the other Party under this Agreement for incidental, indirect, special, or consequential damages connected with or resulting from performance or non - performance of this Agreement, irrespective of whether such claims are based upon breach of warranty, tort (including negligence of any degree), strict liability, contract, operation of law or otherwise. ARTICLE 7 FORCE MAJEURE EVENTS AND REGULATORY EVENTS 7.1 Force Maieure Events. The Supplier shall not be held in default under, or in noncompliance with, the provisions of the Agreement, nor suffer any enforcement or penalty relating to noncompliance or default (including termination, cancellation or revocation of the Franchise), where such noncompliance or alleged defaults occurred or were caused by a "Force Majeure Event," defined as a strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, or other event that is reasonably beyond the Supplier's ability to anticipate or control.. Non- compliance or default attributable to a Force Majeure Event shall be corrected within a reasonable amount of time after the Force Majeure Event has ceased. 7.2 Regulatory Events. The Supplier shall not be held in default under, or in noncompliance with, the provisions of the Agreement as the result of any "Regulatory Event," defined as a change in the Requirements of Law or an adverse decision of a court or governmental body with competent jurisdiction that renders the Program illegal or this Agreement impossible to perform. ARTICLE 8 INDEMNIFICATION AND INSURANCE 8.1 Indemnification. The Supplier shall indemnify and hold harmless the Village, its officers, employees, agents, and attorneys, from and against any third party injuries, claims, demands, judgments, damages, losses and expenses, including reasonable attorney's fees and costs of suit or defense, arising from the Supplier's provision of the Services, except to the extent caused by the sole negligence of the Village.. This duty shall survive for all claims made or actions filed within one (1) year following either the expiration or earlier termination of this Agreement. The Village shall give the Supplier timely written notice of its obligation to indemnify and defend the Village after the Village's receipt of a claim or action pursuant to this Section. For purposes of this Section, the word "timely" shall mean within a time period that does not cause prejudice to the respective positions of the Supplier and /or the Village. Nothing herein shall be construed to limit the Supplier's duty to indemnify the Village by reference to the limits of insurance coverage described in this Agreement. 12 EXECUTION VERSION 8.2 Insurance. Contemporaneous with the Supplier's execution of this Agreement, the Supplier shall provide certificates of insurance, all with coverages and limits as set forth in Exhibit D to this Agreement. For good cause shown, the Village Manager, Village Administrator, or his or her designee may extend the time for submission of the required policies of insurance upon such terms, and with such assurances of complete and prompt performance, as the Village Manager, Village Administrator, or his or her designee may impose in the exercise of his sole discretion. Such certificates and policies shall be in a form acceptable to the Village and from companies with a general rating of A minus, and a financial size category of Class X or better, in Best's Insurance Guide. Such insurance policies shall provide that no change, modification in, or cancellation of, any insurance shall become effective until the expiration of 30 days after written notice thereof shall have been given by the insurance company to the Village. The Supplier shall, at all times during the term of this Agreement, maintain and keep in force, at the Supplier's expense, the insurance coverages provided above. ARTICLE 9 CONFIDENTIAL INFORMATION 9.1 Confidential and Proprietary Information. Notwithstanding anything to the contrary set forth herein, the Parties are not required to disclose information which they reasonably deem to be proprietary or confidential in nature. The Parties agree that any information disclosed by a Party and designated as proprietary and confidential shall only be disclosed to those officials, employees, representatives, and agents of the other Party that have a need to know in order to administer and enforce this Agreement. For purposes of this Section, the terms "proprietary or confidential" include, but are not limited to, information relating to a Party's corporate structure and affiliates, marketing plans, financial information unrelated to the calculation of the Price or rates pursuant to the Requirements of Law, or other information that is reasonably determined by a Party to be competitively sensitive. A Party may make proprietary or confidential information available for inspection but not copying or removal by the other Party's representatives. Compliance by the Village with the Illinois Freedom of Information Act, 5 ILCS 140/1 et seq. ( "Illinois FOIA "), including compliance with an opinion or directive from the Illinois Public Access Counselor or the Illinois Attorney General under the Illinois FOIA, or with a decision or order of a court with jurisdiction over the Village, shall not be a violation of this Section. 9.2 Ownership of Data and Documents. All data and information, regardless of its format, developed or obtained under this Agreement ( "Data "), other than the Supplier's confidential information, will be and remain the sole property of the Village. The Supplier must promptly deliver all Data to the Village at the Village's request. The Supplier is responsible for the care and protection of the Data until that delivery. The Supplier may retain one copy of the Data for the Supplier's records subject to the Supplier's continued compliance with the provisions of this Agreement. 9.3 Limitations on Customer Information. Both Parties acknowledge and agree that the Customer Information is subject to, and must be maintained in compliance with, the limitations on disclosure of the Customer Information established by the Requirements of Law, including without limitation the Aggregation Statute, Section 16 -122 of the Public Utilities Act, 220 ILCS 5/16 -102, and Section 2HH of the Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2HH. 13 EXECUTION VERSION ARTICLE 10 MISCELLANEOUS 10.1 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 communications shall be mailed may be changed from time to time by giving written notice to the other Party. To Village Village of Oak Brook Attn: Village Manager 1200 Oak Brook Road Oak Brook, IL 60523 With a copy to: Peter M. Friedman, Esq. Holland & Knight LLP 131 South Dearborn Street Suite 3000 Chicago, IL 60603 To Supplier Integrys Energy Services, Inc. Attn: Contract Administration 500 W. Madison, Suite #3300 Chicago, IL 60661 With a copy to: Integrys Energy Services, Inc. Attn: Contract Administration 1716 Lawrence Drive De Pere, WI 54115 Phone: 920 - 617 -6067 Fax: 920 - 617 -6070 10.2 Mutual Representations and Warranties. Each Party represents and warrants to the other Party, as of the date of this Agreement, that: a. It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation, and if relevant under such laws, in good standing; b. It has the corporate, governmental and /or other legal capacity, authority and power to execute, deliver and enter into this Agreement and any other related documents, and perform its obligations under this Agreement, and has taken all necessary actions and made all necessary determinations and findings to authorize such execution, delivery and performance; C. The execution, delivery and performance of this Agreement does not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and d. It has reviewed and understands this Agreement; and e. It, to the extent applicable, shall comply with all the Requirements of Law. 14 EXECUTION VERSION 10.3 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 both 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. 10.4 Exhibits. Exhibits A through F attached to this Agreement are, by this reference, incorporated into and made part of this Agreement. 10.5 Waivers. The failure of either Party to insist upon strict performance of such requirements or provisions or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment of such requirements, provisions or rights. 10.6 Applicable Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Illinois without regard for the conflicts of law provisions thereof. 10.7 Controlling Provisions. In the event of any inconsistency between the terms herein and the terms of the Exhibits hereto, the provisions of the Agreement shall control. 10.8 Severability. 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. 10.9 Venue. Except as to any matter within the jurisdiction of the ICC, all judicial actions relating to any interpretation, enforcement, dispute resolution or any other aspect of this Agreement shall be brought in the Circuit Court of the State of Illinois, Cook County, Illinois. Any matter brought pursuant to the jurisdiction of the federal court shall be brought in the United States District Court of the Northern District of Illinois. 10.10 No Third -Party Beneficiaries. Nothing in this Agreement is intended to confer third -party beneficiary status on any person, individual, corporation or member of the public to enforce the terms of this Agreement. 10.11 No Waiver of Rights. Nothing in this Agreement shall be construed as a waiver of any rights, substantive or procedural, that the Village may have under Federal or state law unless such waiver is expressly stated herein. 10.12 Validity of Agreement. The Parties acknowledge and agree in good faith on the validity of the provisions, terms and conditions of this Agreement, in their entirety, and that the Parties have the power and authority to enter into the provisions, terms, and conditions of this Agreement. 10.13 Authority to Sign Agreement. Each Party warrants to the other Party that it is authorized to execute, deliver and perform this Agreement. The individual signing this Agreement on behalf of 15 EXECUTION VERSION each Party warrants to the other Party that he /she is authorized to execute this Agreement in the name of the Party for which he /she is signing. 10.14 Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, the Village and the Supplier and their respective successors, grantees, lessees, and assigns throughout the Term of this Agreement. 10.15 Non - Assignability. This Agreement shall not be transferred or assigned by the Supplier without the express written authorization of the Village. 10.16 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall together constitute one instrument. IN WITNESS WHEREOF, the Parties have duly executed this Agreement to be effective on the date first written above. INTEGRYS ENERGY SERVICES, INC. Signed: Printed Typed Name: Title: Date: Attest: #10607342_v4 VILLAGE OF OAK BROOK Printed Typed Name: Title: Date: Attest: EXECUTION VERSION EXHIBIT A BID PACKAGE 17 EXECUTION VERSION EXHIBIT B BID RESPONSE 18 EXHIBIT C: PRICE Residential Customer Class Price: 5.52¢ per KWh' Commercial Customer Class Price: 5.45¢ per KWh' EXECUTION VERSION Termination Fee for Withdrawing Customers who do not notify the Supplier that they are moving out of the Village: $50 per utility account 19 EXECUTION VERSION EXHIBIT D INSURANCE COVERAGES A. Worker's Compensation and Empover's Liabilitv with limits not less than: (1) Worker's Compensation: Statutory; (2) Employer's Liabilitv: $500,000 injury-per occurrence $500,000 disease -per employee $500,000 disease - policy limit Such insurance shall evidence that coverage applies in the State of Illinois. B. Comprehensive Motor Vehicle Liabilitv with a combined single limit of liability for bodily injury and property damage of not less than $1,000,000 for vehicles owned, non - owned, or rented. All employees shall be included as insureds. C. Comprehensive General Liabilitv a. with coverage written on an "occurrence" basis with limits no less than: $1,000,000 Bodily Injury and Property Damage Combined Single Limit Coverage is to be written on an "occurrence" bases. Coverages shall include: Broad Form Property Damage Endorsement Blanket Contractual Liability (must expressly cover the indemnity provisions of the Contract) b. with coverage written on a "claims made" basis with limits no less than: $1,000,000 Bodily Injury and Property Damage Combined Single Limit Coverage is to be written on an "claims made" bases. Coverages shall include: Broad Form Property Damage Endorsement Blanket Contractual Liability (must expressly cover the indemnity provisions of the Contract) D. Professional Liability Insurance. With a limit of liability of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate and covering Consultant against all sums that Consultant may be obligated to pay on account of any liability arising out of the Contract. E. Umbrella Policy. The required coverages may be in any combination of primary, excess, and umbrella policies. Any excess or umbrella policy must provide excess coverage over underlying insurance on a following -form basis such that when any loss covered by the primary policy exceeds the limits under the primary policy, the excess or umbrella policy becomes effective to cover such loss. F. Owner as Additional Insured. Owner shall be named as an Additional Insured on all policies except for: Worker's Compensation 20 EXECUTION VERSION Professional Liability Each such additional Insured endorsement shall identify Owner as follows: Village of Oak Brook, including its Board members and elected and appointed officials, its officers, employees, agents, attorneys, consultants, and representatives. G. Other Parties as Additional Insureds. In addition to Owner, the following parties shall be named as additional insured on the following policies: Additional Insured Policy or Policies 21 EXECUTION VERSION EXHIBIT E METER READING SCHEDULE 22 Electricity Purchase and Sale Terms and Conditions 4 ►ntegryse energy services The Village of Oak Brook, pursuant to the aggregation authority conferred upon it by the Illinois Power Agency Act, 201LCS 3855/1 -92, and Village Ordinance No. 2011 -GL- ELEC -S -1314, adopted by the Village's corporate authorities on June 14„ 2011 ("Aggregation Ordinance ") establishing the Village's Municipal Electric Aggregation Program ( "Program "), selected Integrys Energy Services, Inc. ( "Seller ") to supply electricity and to administer enrollments as described below pursuant to that certain Agreement between the Village and Seller dated October 18, 2011 ( "Program Agreement "). You, the account holder (also referred to as "Buyer ") for each eligible account associated with the service address referenced on the letter accompanying these Electricity Purchase and Sale Terms and Conditions (the "Account'), and Seller agree to the following terms and conditions. Seller and Buyer (individually referred to as "Party" and collectively as "Parties ") agree to the following Electricity Purchase and Sale Terms and Conditions ( "Agreement "), as of November 18, 2011 for Opt -Out Enrollments or the date of Buyers enrollment with Seller for Opt -In Enrollments (the "Effective Date "). 1. Eligibility. To be eligible to participate in the Program, the Account(s) to be served (i) must be located within the Village's jurisdictional boundaries, (ii) must be served by ComEd (the "Utility"), and (iii) may not have franchised service with a municipal account. a. Residential Customer Class. To be eligible for the Residential Rate, the Account(s) to be served must be designated by the Utility as belonging to one of the following delivery classes: (i) Residential Single Family Without Electric Space Heat Delivery Class, (ii) Residential Multi Family Without Electric Space Heat Delivery Class, (iii) Residential Single Family With Electric Space Heat Delivery Class, or (iv) Residential Multi Family With Electric Space Heat Delivery Class. Notwithstanding the foregoing, if the Account(s) to be served are (i) on a residential space heat rate, (ii) on an hourly billing rate, or (iii) under contract with another retail electric supplier, the Account(s) are not eligible for Opt -Out Enrollment as defined in Section 2a below but are eligible for Opt -In Enrollment as defined in Section 2b below. b. Commercial Customer Class. To be eligible for the Commercial Rate, the Account(s) to be served must be designated by the Utility as belonging to one of the following delivery classes: (1) Watt -Hour Delivery Class or (ii) Small Load Delivery Class. Notwithstanding the foregoing, if the Account(s) to be served are (i) on an hourly billing rate or (ii) under contract with another retail electric supplier, the Account(s) are not eligible for Opt -Out Enrollment as defined in Section 2a below but are eligible for Opt -In Enrollment as defined in Section 2b below. 2. Enrollment. a. Opt -Out Enrollment (Automatic Enrollments due to non - action by November 18, 2011). Enrollment is automatic if (i) the Account(s) to be served is /are eligible and (ii) Buyer does not opt -out of the Program. IF YOU DO NOT WISH TO PARTICIPATE IN THE PROGRAM, YOU MUST OPT -OUT BY NOVEMBER 18. 2011. YOU CAN OPT - OUT BY (1) RETURNING THE POSTCARD, (11) CALLING SELLER TOLL -FREE AT (888) 548 -8795, OR (III) CONTACTING SELLER ONLINE AT WWW .INTEGRYSENERGY.COM /OAKBROOK. b. Opt -In Enrollment (Affirmative Enrollments). Enrollment is open to those who opt -out or are otherwise not automatically enrolled if (i) the Account(s) to be served is /are eligible and (ii) Buyer chooses to opt - in to the Program. You can Opt -In by (1) calling Seller toll -free at (888) 548 -8795 or (ii) contacting Seller online at www.integrysenergy.com/oakbrook. 3. Term. This Agreement shall become binding on the Effective Date and shall remain in effect through Buyer's January 2014 meter reading ( "Term "), unless (i) this Agreement is terminated pursuant to its terms or (ii) the Program Agreement is terminated by the Village pursuant to its terms. Notwithstanding the Effective Date, the obligation of Seller to sell and schedule electricity for delivery to Buyer and the obligation of Buyer to purchase, take and pay for electricity shall commence on the Account's January 2012 meter read (for Opt -Out Enrollments) or the first available meter read following Opt -In for Opt -In Enrollments, and shall be contingent upon: (a) successful enrollment by the Utility identified and (b) if applicable, the passage of the Rescission Period (defined in Section 4) without effective cancellation by Buyer. Successful enrollment by the Utility is dependent upon (i) the eligibility of Buyer's Utility account(s), as determined by the Utility, to take from a retail electric supplier and to participate in the Utility's purchase of receivables program (including service class and past payment history), and (ii) the accuracy and completeness of any information submitted by Buyer. 4. Rescission Period. Buyer may cancel its enrollment without penalty within five (5) days of the effective date of the switch to Seller's service. S. Price. a. Fixed Rate. During the Term, Buyer shall pay the Fixed Rate multiplied by the billing cycle usage the Account(s) served. I. Residential Rate. During the Term, Buyers to which the Residential Customer Class is applicable shall pay the Fixed Rate of 5.52 cents per kWh. ii. Commercial Rate. During the Term, Buyers to which the Commercial Customer Class is applicable shall pay the Fixed Rate of 5.45 cents per kWh. It. Switching Fees. Seller does not charge Buyer a separate fee to switch to Seller's service. If ComEd charges a fee for enrolling the Account(s) to Seller's service, Seller will reimburse Buyer for any such fees within thirty (30) days. If Buyer is currently receiving electricity pursuant to an agreement with another retail electric supplier, that supplier may charge Buyer for switching electricity providers. Seller will not reimburse Buyer for any such fees. c. Price Match. If the Utility's Price to Compare for the Account(s)' rate class are set below the Fixed Rate during the Term of this Agreement, Seller will either (a) lower the Fixed Rate identified above to match that of the Utility's applicable Price to Compare or (b) terminate this Agreement without damages or early termination fees to either Party. "Utility's Price to Compare" shall mean ComEd's "Price to Compare" for the applicable rate class, as posted on the ICC website (www.pluginillinois.org), which includes ComEd's electricity supply charge plus ComEd's transmission services charge, but shall not include ComEd's purchased electricity adjustment. 6. Expiration. Absent termination prior to the end of the Term as permitted herein, in the event the Program Agreement is not renewed by the Village prior to the end of the Term of this Agreement, Buyer will be restored to tariffed service at the end of the Term 7. Billing and Payment. Buyer will be invoiced for Seller's charges and the Utility's delivery charges on monthly invoice(s) Buyer receives from the Utility, and such billing and payment shall be subject to the applicable Utility rules regarding billing and payment procedures. Seller's charges or credits not invoiced through the Utility shall be invoiced or credited, respectively, directly by Seller. Seller may cause the Utility to correct previous invoices in the event of invoicing errors. 8. Taxes. Any tax levied against Seller by any governmental entity, exclusive of Seller's income tax or taxes levied on Seller's real or personal property that must be paid by Seller shall be passed through to and borne and reimbursed by Buyer. Buyer must provide Seller with any applicable exemption certificates. Buyer shall pay any such taxes unless Seller is required by law to collect and remit such taxes, in which case Buyer shall reimburse Seller for all amounts so paid. 9. Termination; Remedies. If either Party defaults on its obligations under this Agreement (which may include Buyer's switching to another retail electric supplier or the Utility or Buyer's failure to pay the Utility), the other Party may terminate this Agreement, as applicable. Seller reserves the right to charge Buyer an early termination fee for Buyer's termination after the Rescission Period of Section 4 that has not resulted from Seller's default. Seller may invoice Buyer directly for any early termination fees and payment of any early termination fees shall be due within thirty (30) days of the invoice date. Buyer agrees damages would be difficult to quantify upon a default and agree that this is not a penalty. The early termination fee shall total $50.00 per Account, provided however, Seller will waive such early termination fee if Buyer moves (either within or outside of the Village boundaries), and 2 provides notice to Seller that Buyer is moving prior to termination. Notwithstanding the foregoing, in the event the Village terminates the Program Agreement prior to the end of the Term of this Agreement, Seller will waive the early termination fee and return Buyer's Account(s) to ComEd tariffed service on the second meter read following termination. SELLER SHALL NOT BE LIABLE FOR ANY DAMAGES OR PENALTIES RESULTING FROM THE RETURN OF BUYER'S ACCOUNT(S) TO THE UTILITY'S TARIFFED SERVICE, INCLUDING CLAIMS RELATING TO THE TARIFFED SERVICE PRICE BEING HIGHER THAN THE FIXED RATE HEREIN. 30. Limitations. ALL ELECTRICITY SOLD HEREUNDER IS PROVIDED "AS IS" AND SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT, WHETHER IN AGREEMENT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES. 11. Force Majeure. Except for Buyers obligation to pay Seller timely, neither Party shall be liable to the other for failure to perform an obligation if the non - performing Party was prevented from performing due to an event beyond their reasonable control, that could not be remedied by the exercise of due diligence and that was not reasonably foreseeable, including without limitation, acts of God, a condition resulting from the curtailment of electricity supply or interruption or curtailment of transmission on the electric transmission and /or distribution system, interruption of Utility service, terrorist acts or wars, and force majeure events of the Utility or independent system operator. 12. Questions, Complaints, and Concerns. Buyer may contact Seller by calling 1- 877 -548 -8795, at Seller's website at www.integrysenergy.com, or by writing to 500 W. Madison, #3300, Chicago, IL 60661, Attn: Customer Service. For issues concerning this Agreement, Seller will attempt to resolve the matter within five (5) business days after receiving the call or letter. If Buyer is not satisfied with the response, or to obtain consumer education materials, Buyer can contact the Illinois Commerce Commission's Consumer Services Division at 1- 800 -524 -0795 or 1 -800- 858 -9277 for TTY hearing- impaired customers or visit the Illinois Commerce Commission's website at www.icc.'tllinois.gov. Buyer may also contact the Illinois Attorney General's Office at 1- 800 - 386 -5438 (Northern Illinois), 1 -800- 243 -0618 (Central Illinois), or 1- 800 - 243 -0607 (Southern Illinois). 13. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without regard for the conflicts of law provisions thereof. Title, possession, control of the electricity, and risk of loss will pass from Seller to Buyer at the delivery point, which shall be the Utility. Buyer appoints Seller as its agent for the purposes of effectuating delivery, including for receipt of billing and usage data from the Utility. Subject to regulatory approvals and notice from Seller and the terms of the Program Agreement, Seller may assign this Agreement without Buyer's consent. Buyer may assign this Agreement only with Seller's prior written consent. This Agreement (including without limitation the Account identification) shall be considered a Letter of Agency and constitutes the entire agreement between the Parties, superseding all verbal and written understandings. There are no third party beneficiaries to this Agreement and none are intended. This Agreement shall only be amended in writing signed by both Parties or with Notice from Seller to Buyer as described under Section 4 above. Buyer should contact the Utility in the event of an electric emergency at 1 -800- Edison -1 (residential) or 1- 877- 4- ComEd- 1 (commercial). Future correspondence may be sent by Seller to Buyer via first class mail and /or electronic mail.