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R-1456 - 04/28/2015 - ELECTRIC AGGREGATION - Resolutions RESOLUTION 2015-ELEC-AGG-AG-R-1456 A RESOLUTION APPROVING AND AUTHORIZING THE EXECUTION OF A POWER SUPPLY AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK AND ELIGO ENERGY IL, LLC FOR THE VILLAGE'S ELECTRICITY AGGREGATION PROGRAM WHEREAS, the Village and Eligo Energy IL, LLC ("Eligo") 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 solicited qualified bidders and pricing for the Services, and Eligo 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 Eligo 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 sh I be in full force and effect upon passage and approval in the manner provided by law. APPROVED THIS 28th day of April, 2015 ~ , Gopal G. Lalmalani Village President PASSED THIS 28th day of April, 2015 Ayes: Trustees Adler, Baar, Manzo, Moy, Wolin, Yusuf Nays: None Absent: None ATTEST Charlotte K. Pruss Village Clerk Y Resolution 2015-ELEC-AGG-AG-R-1456 Electricity Aggregation Program Agreement Resolution Page 2 of 2 EXHIBIT A AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK AND ELIGO ENERGY IL, LLC FOR THE VILLAGE'S ELECTRICITY AGGREGATION PROGRAM Aggregation Supply Agreement—Village Board Consideration Version Aggregation Program Agreement By and Between The Village of Oak Brook and Vendor This Aggregation Program Agreement is entered into as of this ""%I th day of April, 2015 ("Agreement"), by and between the Village of Oak Brook {"Village '), an Illinois municipal corporation, and Eligo Energy IL, LLC ("Vendor"), an Illinois corporation with an office located at 201 W. Lake St., Ste 151, Chicago, IL 60606. Vendor and the Village of Oak Brook are sometimes hereinafter referred to individually as a "Party" or collectively as the "Parties". W I T N E S S IE T H WHEREAS, Section 1-92 of the Illinois Power Agency Act, 20 ILCS 3855/1-92, authorizes the corporate authorities of a municipality to establish a program to aggregate electrical loads of residential and small commercial retail customers and to solicit bids and enter into service agreements to facilitate the sale and purchase of electricity and related services for those electrical loads ("Aggregation"); and WHEREAS, pursuant to the Act, municipalities may, if authorized by referendum, operate an Electricity Aggregation Program as an"opt-oX program that applies to all residential and small commercial retail electrical customers who do not of n-natively choose not to participate; and WHEREAS, the residents of the Village approved a referendum at the November 6, 2012 general election authorizing the establishment of an "opt-out" Aggregation Program in the Village pursuant to the Act', and WHEREAS, a Request for Pricing was issued on March 31, 2015; and WHEREAS, Vendor is an RES registered with and certified by the ICC and was identified as the lowest responsible bidder pursuant to the Power Supply Bid; and WHEREAS, the Village has selected Vendor as the supplier for the Aggregation Program; and WHEREAS, the Village and Vendor desire to establish the rights and obligations of the Parties with respect to aggregating, determining a price and supplying the Aggregation and related services. NOW, THEREFORE, the Parties, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, agree as follows: ARTICLE 1: RECITALS The foregoing recitals are, by this reference, fully incorporated into and made part of this Agreement. 2 AWoved as to Formli2:��r r,. - DW: ILIXIiOIS CONEVIUNITY CHOICE AGGREGATION NETWORK Aggregation supply Agreement—Village Board Consideration Version ARTICLE 2: DEFINITIONS Whenever used in this Agreement, the following terms shall have the meanings defined below except where the context indicates otherwise: A. "Affiliate" shall mean any person, firm, corporation (including, without limitation, service corporation and professional corporation), partnership (including, without limitation, general partnership, limited partnership and limited liability partnership), limited liability company, joint venture, business trust, association or other entity that now or in the future directly or indirectly controls, is controlled by, or is under common control with Vendor. B. "Act" shall refer to the Illinois Power Agency Act, 20 ILCS 385511-1 et seq. C. "Aggregation" or "Municipal Aggregation" shall mean the pooling of residential and small commercial retail electrical loads located within the Village for the purpose of soliciting bids and entering into service agreements to facilitate for those loads the sale and purchase of electricity and related services, all in accordance with Section 1-92 of the Act. D. "Aggregation Consultant" or "Consultant" shall refer to Intelligent Power Partners LLC, the independent consultant with demonstrated expertise in electric supply contracting that has been retained by the Village to assist with the implementation of each member municipality's Program. E. "Aggregation Member" or "Member" shall mean a residential or small commercial retail electric account enrolled in the Aggregation Program. F. "Aggregation Program" or"Program" shall mean the program adopted by the Village pursuant to Section 1-92 of the Act to facilitate for the applicable residential and small commercial customers the sale and purchase of electricity and related services. G. "Alternative Retail Electric Supplier" or "RES" shall mean an entity certified by the ]CC to offer electric power or energy for sale, lease or in exchange for other value received to one or more retail customers, or that engages in the delivery or furnishing of electric power or energy to such retail customers, and shall include, without limitation, resellers, aggregators and power marketers but shall not include the Electric Utility or the Aggregation Members. For purposes of this Agreement, the definition of Alternative Retail Electric Supplier is more completely set forth in 220 ILCS 5/16-102. H. "Ancillary Services" shall mean the necessary services that shall be provided in the generation and delivery of electricity. As defined by the Federal Energy Regulatory Commission, "Ancillary Services" include, without limitation: coordination and scheduling services (load following, energy imbalance service, control of transmission congestion); automatic generation control (load frequency control and the economic dispatch of plants); contractual agreements (loss compensation service); and support of system integrity and security (reactive power, or spinning and operating reserves). 1. "Commonwealth Edison" or "ComEd" or "Utility" shall mean the Commonwealth Edison Utility Company, or its successor, as the entity that has a franchise, license, permit or right to distribute, furnish or sell electricity to retail customers within the Village, J. "Customer Information" shall mean information of individual Aggregation Members subject to the limitation on disclosure established by law, including without limitation the Act, Action 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 ILLINOIS COMMUNITY CHOICE AGGREGATION NETWORK P a Aggregation Supply Agreement—Village Board Consideration Version K. "Electric Utility" shall mean Commonwealth Edison, as the entity that has a franchise, license, permit or right to distribute, furnish or sell electricity to retail customers within the Village. L. "Eligible Retail Customer" shall mean a residential and small commercial retail customer of the Utility meeting the eligibility criteria set forth in the Terms and Conditions. M. "Extended Term" is defined in Section 3.A of this Agreement. N. "Force Majeure Event" is defined in Section 6.0 of this Agreement. O. 1CC" shall mean the Illinois Commerce Commission as described in 220 ILCS 5/2- 101. P. "IPA" shall mean the Illinois Power Agency. Q. "Load" shall mean the total demand for electric energy required to serve the Aggregation Members. R. "Opt-Out" shall mean the process by which a Member who would be included in the Aggregation Program chooses not to participate in the Aggregation Program. S. "PIPP" shall mean a Percentage of Income Payment Plan created by the Emergency Assistance Act, 305 ILCS 20-18, to provide a bill payment assistance program for low- income residential customers. T. "PJM" shall mean PJM Interconnection, L.L.C., a regional transmission organization that coordinates the movement of wholesale electricity in all or parts of multiple states, including the Commonwealth Edison service territory. U. "Plan of Operation and Governance" shall mean the Aggregation Plan of Operation and Governance adopted by the Village pursuant to the requirements set forth in Section 1-92 of the Act. V. "Point of Delivery" shall mean the interconnection between the RTO and the Electric Utility to which Vendor shall deliver the electricity under the Aggregation Program for delivery by the Electric Utility to the Aggregation Members. W. "Price" or "Fixed Price" is defined in Section 5.E of this Agreement. X. "Price to Compare" shall mean the unit price for ComEd electricity supply services for residential customer classes which is the sum of the electricity supply charge and the transmission services charge as established by ComEd Rider PE (Purchased Electricity" and Rate BES (Basic Electricity Service) or their successor rates and riders. Y. "REC" shall mean Renewable Energy Credits. Z. "Regulatory Event" is defined in Section 63 of this Agreement. AA. "Services" is defined in Article 5 of this Agreement. BB. "Small Commercial Retail Customer" shall mean those retail customers with an annual consumption of less than 15,000 kWh per 220 ILCS 5/16-102, provided, however, that the definition of Small Commercial Retail Customer will include such other definition or description as may become required by law or tariff. CC. "Term" is defined in Section 3,A of this Agreement. DD. "Terms and Conditions" is defined in Section 5.13 of this Agreement. EE. "Village" or "The Village" shall mean the Village of Oak Brook, acting by and through its corporate authorities, and authorized Village employees. FF. "Village Designee" shall mean the person (or persons) empowered by the Village though Ordinance to authorize and execute a contract price lock for electricity supply on behalf of the Village Board. ARTICLE 3: TERM A. Term of Agreement. This Agreement is for an initial term beginning on the Effective Date of this Agreement and ending on the date that is the last Meter Read Cycle End Date for n,LINOIs COIvIWMTX CHOICE AGGREGATION NETWORK P a Aggregation Supply Agreement—Village Board Consideration Version Aggregation Members for 24 months I billing cycles (the "Initial Agreement Term"), unless terminated early pursuant to Article 6 of this Agreement, or unless the Price to Compare for ComEd Default Tariff Service falls below the Fixed Price. If the Price to Compare falls below the Fixed Price, then the Vendor, at its option, may establish a rate equal to the ComEd Price to Compare or terminate this Agreement and return Members to the ComEd Default Tariff Service at no cost to the Village or the Members. Subsequent to such Price reduction, if the Price to Compare is further revised but remains below the original Fixed Price, Vendor shall comparably re-establish the rate in an amount equal to the revised Price to Compare. The Village and the Vendor may extend the Initial Agreement Term for additional periods of time up to 12 months for each extension, by written agreement approved and executed by each of them (each an "Extended Agreement Term") (the applicable Initial Agreement Term or Extended Agreement Term is the "Agreement Term'. Nothing in this Article related to the Initial Agreement Term or the possibility of agreement to an Extended Agreement 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 Vendor shall continue beyond the Initial Agreement Term or an approved Extended Agreement Term, ARTICLE 4: PROGRAM RESPONSIBILITIES A. Village Responsibilities. 1. Customer Information. Vendor and Village shall cooperate to obtain the Customer Information from ComEd (including submission to ComEd of the Government Authority Aggregation Form), subject to the limitations on disclosure of the Customer Information established at law, including without limitation the Act, Section 16-122 of the Public Utilities Act, 220 ILCS 6116-102, and Section 2HH of the Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505I2HH. 2. Notices from ComEd. The Village shall promptly forward to Vendor any notices received by the Village from ComEd concerning the accounts of Aggregation Members. 3. 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 Vendor, ComEd, or any Aggregation Member. 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 Vendor, ComEd, or any Aggregation Member. ILLINOIS COMMUNITY CHOICE AGGREGATION NETWORK P a p Aggregation Supply Agreement—Village Board Consideration Version B. Vendor Obligations. 1. Provision of Services. The Vendor shall provide all of the Services described in Article 5 of this Agreement throughout the Term. The Vendor acknowledges and agrees that the Village is not responsible to provide, and shall not be liable to the Vendor or any Aggregation Member for any failure to provide, any Services pursuant to this Agreement. 2. Compliance with Applicable Law. Vendor shall comply with all applicable requirements of law, including without limitation the Aggregation Ordinance, Plan of Governance, the Act, the rules and regulations of the ICC, tariffs applicable to the Electric Utility and the Independent System Operator, and all other applicable federal, state, and local laws, orders, rules and regulations (collectively, the "Requirements of Laub'), including the terms and conditions of this Agreement, in providing the Services pursuant to this Agreement. 3. Compliance with Plan of Operation and Governance. The Vendor shall provide all services required under this Agreement in accordance and compliance with the Plan of Operation and Governance adopted by the Village and attached as Exhibit D. ARTICLE 5: VENDOR SERVICES The Vendor shall supply all of the following services in support of the Program (collectively, the "Services"): A. Electricity Suppl y. Vendor shall supply firm power requirements to each Aggregation Member which it is ultimately contracted to serve. 1. Electricity Supply. a. Transmission. Vendor will acquire and pay all necessary transmission services up to the Point of Delivery to deliver electricity supply to Members, including all electricity commodity costs, MISO charges, congestion charges, distribution and transmission losses, and capacity charges. Vendor shall be responsible for monitoring and negotiating interstate transmission discounts. b. Billing. Vendor shall make all arrangements for Aggregation Members to receive a single monthly bill from ComEd during the Term. Additionally, Vendor shall ensure that the following fees continue to be collected and processed by ComEd: monthly payments, late payments, delivery charges and monthly service fee. C. Data. Vendor shall maintain a comprehensive and confidential database recording historical account information for Member accounts, and maintain a current list of accounts of Aggregation Members, and accounts that have opted-out of the Aggregation Program. d. Title. Title to and risk of loss for the electricity sold to Members shall pass to the purchasing Member upon delivery at the Point of Delivery; 2. Supply Mix. Vendor shall be capable of providing the following energy supply mix to Members: Standard Supply Mix ILLINOIS COMMUN=CHOICE AGGREGATION NETWORK P a Aggregation Supply Agreement—Village Board Consideration Version 3. Delivery Specifications a. Quality and Measurement. Vendor warrants that all electricity sold and delivered shall be of the specifications required by PJM and ComEd and suitable for delivery to and use by the Members. b. Title. Vendor warrants that it possesses or will possess good marketable title to all electricity sold to the Members, and that such electricity is free from all liens and adverse claims up to the Point of Delivery. C. Delivery. Vendor shall deliver all electricity supplied to Members at the Point of Delivery to secure delivery to the Aggregation Members. B. Program Implementation. 1. Member Service. Vendor shall maintain certain minimum levels of customer service including: a. Program Management and Documentation. Vendor program management and documentation shall be in accordance with 1) this Agreement; 2) the Village's Plan of Operation and Governance; 3) the Vendor's response to the Village's Request for Pricing, and 4) the Requirements of Law. b. Confidentiality. Vendor shall maintain the confidentiality of customer information pursuant to Article 10 of this Agreement and as required by law. C. Customer Service. Vendor shall assist Aggregation Members with their inquiries. Concerns regarding service reliability should be directed to ComEd, billing questions should be directed to ComEd or the Vendor, as applicable, and any unresolved disputes should be directed to the iCC. Inquiries from Aggregation Members should be managed within the following performance parameters: i. Telephone Inquiries. Vendor shall maintain a toll-free telephone access line which shall be available to Aggregation Members 24 hours a day, seven days a week. ' Trained company representatives shall be available to respond to customer telephone inquiries during normal business hours. After normal business hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after normal business hours shall be responded to by a trained company representative on the next business day, Under normal operating conditions, telephone answer times by a customer representative, including wait time, shall not exceed 30 seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed 30 seconds. These standards shall be met no less than 90 percent of the time under normal operating conditions, measured on a quarterly basis. ILLINOIS COMMUNITY CHOICE AGGREGATION NETWORK P a Aggregation Supply Agreement—Village Board Consideration Version ii. Internet and Electronic Mail. Vendor shall establish and maintain a website for the Aggregation Members. The website shall provide basic information concerning the Aggregation Program and facilitate customer inquiries by providing a platform for the submission of questions by email or text. Responses to inquiries submitted through the website platform be generated within 24 hours. iii. Multi-Lingual Services. Vendor-shall provide customer service for Members requiring non-English verbal and written assistance. iv, Hearing Impaired. Vendor shall provide customer service for hearing impaired Members. 2. Enrollments. Vendor shall perform the following Aggregation account enrollment tasks: a. Opt-Out Notifications, The Vendor shall assist the Village in the development of any Opt-Out notices issued to Members. The Village shall be solely responsible for the printing and issuance of Opt-Out Notices to Members. Vendor shall track responses to the Opt-Out Period Notifications under the supervision of the Village and the Consultant, in accordance with the Plan of Operation and Governance. A single database shall track account enrollment and billing data. b. New Accounts. Vendor shall facilitate the addition of new customer accounts to the Aggregation Program during the term of this Agreement at the same pricing applicable to Members. C. Re-Joining the Aggregation Group. Vendor shall assist Aggregation Members that have Opted-Out to rejoin at a later date. Eligible customers may rejoin the Program at a later date in the same manner and at the same pricing as provided to Aggregation Members and new accounts. These Members may contact the RES at any time to obtain enrollment information. d. Moving Within the Village. Vendor shall continue service at the same rate and under the same terms and conditions for any Member who relocates within the Village prior to the expiration of the term of this Agreement, providing that the Member notifies the Vendor of its desire to do so with 30 days notice. The Vendor shall be responsible for providing notice to customers about this option. e. Percentage of Income Payment Plan (PIPP). Vendor shall facilitate billing for residents enrolled in the PIPP bill payment assistance program for low-income residential customers. Vendor shall also notify PIPP customers of the consequences of participating in the Aggregation. f. CreditlDeposit Requirements. Collection and credit procedures are to be the responsibility of ComEd, the Vendor, and the individual Member. ILLINOIS CONDMJNITY CHOICE AGGREGATION NETWORK P Aggregation Supply Agreement—Village Board consideration Version Members will be required to comply with the payment terms of ComEd and the Vendor. The Village is not responsible for late payment or non- payment of any Member account. Neither the Village nor the Vendor shall have a separate credit or deposit policy concerning Member accounts. g. Reliability of Power Supply. The Parties acknowledge that the Program only affects pricing for the generation source of power supply up to the Point of Delivery. ComEd will continue to deliver power through their transmission and distribution systems. Responsibility for maintaining system reliability continues to rest with ComEd. If Members have service reliability problems, they should contact ComEd for repairs. The ]CC has established Minimum Reliability Standards" for all utilities operating distribution systems in Illinois. Member outages, duration of outages, interruptions, etc., are monitored to ensure reliability remains at satisfactory levels. In addition to maintaining the "wires" system, ComEd is required to be the "Provider of Last Resort," meaning that should the Vendor fail for any reason to deliver any or all of the electricity needed to serve the Members' needs, ComEd will immediately provide any supplemental electricity to the Members as may be required. ComEd would then bill the Vendor for the power provided on their behalf, and the Members would incur no additional cost therefor, h. Fees Imposition. Neither the Village nor Vendor shall impose any conditions, terms, fees, or charges on any Member served by the Program unless the particular term, condition, fee, or charge, is clearly disclosed to the Member at the time the Members chose not to opt-out of the Program. i. Enrollment and Disenroliment Charges. Vendor shall not assess any early termination, enrollment, switching, or relocation fees on Aggregation Members. The Vendor shall pay, on behalf of each Aggregation Member, any switching fee imposed by the Electric Utility related to the enrollment of a Member in the Program. j. Form Documents. Examples of Opt-Out letters and communications are provided in Exhibit B to this Agreement. 3. Terms of Service. The terms of service between each Member and Vendor shall be set forth in the agreement between them, substantially in the form attached hereto as Exhibit B ("Terms and Conditions"). C. Program Monitoring. Vendor is responsible for the faithful performance of this Agreement and shall have internal monitoring procedures and processes to ensure compliance, as more fully described in this Section 5.C, 1. Recording. Vendor shall assist the Village in developing a performance scorecard with conditions, milestones, requirements, or timetables related to Vendor's performance under the Program. The scorecard may additionally record matters related to price, service, quality and other factors deemed important. ILLINOIS COMMUNMI CHOICE AGGREGATION NETWORK P a ; Aggregation Supply Agreement—Village Board Consideration Version 2. Cooperation. Vendor shall cooperate with the Village in monitoring and tracking Program activity. This may require Vendor to report progress, problems and proposed resolutions, performance records, allow random inspections of its facilities (on no less than 48 hours prior written notice), participate in scheduled meetings and provide management reports, all as reasonably requested by the Village. D. Cooperation at the Conclusion of the Aggregation. Vendor agrees that it shall cooperate with the Village in the Village's planning and implementation of an aggregation plan that may succeed the Program under this Agreement. In its cooperation, Vendor shall, at a minimum, in a manner consistent with the then-applicable Commonwealth Edison tariff for Government Aggregation Protocols and as required by law, provide the Village the names and addresses and account information for Aggregation Members in electronic format. E. Price. The Price for the Services ("Price") is set forth in Exhibit A. ARTICLE 6: DEFAULT AND TERMINATION A. Default and Termination. Upon termination for any reason, this Power Supply Agreement shall be of no further force and effect, except for those obligations that survive termination. The obligations of Vendor and each Aggregation Member set forth in the Terms and Conditions shall survive termination. Notwithstanding the foregoing, at the Village's discretion, in the event that Vendor materially breaches this Agreement, the Village may: (i) provide written notice to the Aggregation Members that a default has occurred and identify the alternatives each participant has for electric supply (including terminating service with Vendor); and (ii) take such actions as necessary to return the Aggregation Members to ComEd. In the event that Vendor materially breaches this Agreement and the Village deems it appropriate to terminate the Program and return the participants to ComEd, or to any other energy supplier, then: @ Vendor shall not charge the Aggregation Members for administrative fees associated with early termination, and; (ii) Vendor shall not be liable to Aggregation Members for any damages or penalties resulting from the Village's termination of the Terms and Conditions with each Aggregation Member, including claims related to the price received from ComEd or an alternate supplier being higher than the Price determined herein. If no early termination has occurred, this Agreement shall terminate upon the expiration of the Agreement Term. B. This Agreement may be terminated early in the following circumstances: 1. Non-Compliance. If either Party fails to comply with any material term or condition of this Agreement, provided the failure continues without a cure 30 days after written Notice of such failure is provided by one Party to the other. Material terms and conditions include, but are not limited to: a. A breach of the confidentiality provisions set forth in Article 10 of this Agreement; ILLINOIS COMMUNITY CHOICE AGGREGATION NETWORK P � Aggregation Supply Agreement-Village Board consideration Version b. Vendor's disqualification as an RES due to a lapse or revocation of any required license or certification required to perform the obligations set forth herein; or C. Any act or omission that constitutes a deception by affirmative statement or practice, or by omission, fraud misrepresentation or a bad faith practice, such as attempting to collect a charge other than the approved rates or other charges set forth in this Agreement or the Terms and Conditions with each Aggregation Member. 2. Regulatory Event. a. Definition. The following shall constitute a "Regulatory Event": 1. Illegality. It becomes unlawful for a Party to perform any obligation under this Agreement due to the adoption of, change in, or change in the interpretation of any applicable law by any judicial or government authority with competent jurisdiction. 2. Adverse Government Action. A regulatory, legislative or judicial body: (A) requires a material change to the terms of this Agreement that materially and adversely affects a Party; (B) takes action that adversely and materially impacts a Party's ability to perform, or requires a delay in the performance of this Agreement that either Party determines to be unreasonable; or (C) orders a change or modification that affects the Program such that either Party's obligations hereunder are materially changed, and the change is not deemed a Force Majeure Event. b. Occurrence of Regulatory Event. Upon the occurrence of a Regulatory Event, the adversely affected Party shall give notice to the other Party that such event has occurred. Within 30 days, or such other period as the Parties may agree in writing, the Parties shall enter into good faith negotiations to amend or replace this Agreement so that the adversely affected Party is restored as nearly as possible to the economic position it would have been in but for the occurrence of the Regulatory Event. If the Parties are unable to agree upon an amendment to this Agreement, within the prescribed time after entering into negotiations, the adversely affected Party shall have the right, upon 10 days prior written notice, to terminate this Agreement. 3. Failure to Schedule and Deliver. The failure of Vendor to schedule electricity supply to ComEd for the Aggregation Members, except as permitted under Force Majeure Events. C. Force Maieure Events. The Vendor shall not be held in default under, or in noncompliance with, the provisions of this 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 ILLINOIS COMMUNITY CHOICE AGGREGATION NETWORK P a ; Aggregation Supply Agreement—Village Board Consideration Version 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, governmental, administrative or judicial order or regulation or other event that is reasonably beyond the Vendor's ability to anticipate or control. Specifically, and without limitation of the foregoing, during any Force Majeure Event, the Vendor shall have no obligation to provide daily fixed price quotes pursuant to Section 5.E of this Agreement. Non-compliance or default shall be corrected within a reasonable amount of time after force majeure has ceased. ARTICLE 7: INDEMNIFICATION, INSURANCE, DISCLAIMER, AND LIMITATION OF LIABILITY A. Indemnification. The Vendor shall defend, indemnify and hold harmless the Village, its officers, employees, agents, and attorneys, from and against any injuries, claims, demands, judgments, damages, losses and expenses, including attorney's fees and costs of suit or defense, arising out of or relating to the Vendor's provision of the Services. This duty shall survive for all claims made or actions filed within one year following either the expiration or earlier termination of this Agreement. The Village shall give the Vendor 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 Vendor and/or the Village. Nothing herein shall be construed to limit the Vendor's duty to indemnify the Village by reference to the limits of insurance coverage described in this Agreement. B. Insurance. Contemporaneous with the Vendor's execution of this Agreement, the Vendor shall provide certificates of insurance, all with coverages and limits as set forth in Exhibit C to this Agreement. For good cause shown, the Village Manager/Administrator, or his or her designee may request submission of copies of the required policies of insurance upon such terms, and with such assurances of complete and prompt performance, as the Village Manager/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 or better, and a financial size category of Class Vill 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 Vendor shall, at all times during the term of this Agreement, maintain and keep in force, at the Vendor's expense, the insurance coverages provided above. ARTICLE 8: MISCELLANEOUS A. Entire Agreement. This Agreement, including all Exhibits, constitutes the entire Agreement and understanding between the Parties with respect to the Services, which are included herein. All prior written and verbal agreements and representations with respect to these Services are merged into and superseded by this agreement. B. Amendment. All amendments or modifications to this Agreement shall be made in writing and signed by both Parties before they become effective. ILLINOIS COMMUNITY CHOICE AGGREGATION NETWORK P a ; Aggregation Supply Agreement—Village Board Consideration Version C. Ownership of Data and Documents. All data and information, regardless of its format, developed or obtained under this Agreement ("Data"), other than the Vendor's confidential information, will be and remain the sole property of the Village. The Vendor must promptly deliver all Data to the Village at the Village's request. The Vendor is responsible for the care and protection of the Data until that delivery. The Vendor may retain one copy of the Data for the Vendor's records subject to the Vendor's continued compliance with the provisions of this Agreement. Upon expiration of the Agreement, Vendor shall provide Village with an electronic copy of data defined in Article 5(1)(c) at no cost to the Village. D. Assignment. This Agreement shall not be transferred or assigned by either Party without the express authorization of the other Party, which shall not be unreasonably withheld, provided, however, that upon advance written notice to the Village, Vendor may assign this Agreement to an Affiliate without the express authorization of the Village, provided that Vendor remains liable for Vendor's obligations hereunder. E. Notices. Any notices, requests or demands regarding the services provided under this Agreement and the Attachments shall be deemed to be property 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, on the day of receipt; 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: To Vendor: Village of Oak Brook, Eligo Energy IL, LLC Attn: Riccardo Ginex, Village Manager Attn: General Counsel 1200 Oak Brook Rd., 201 W. Lake St., Ste 151 Oak Brook, IL 60523 Chicago, IL 60606 Email: rginex@oak-brook.org Email: arozenblat(c-Deligoenergy,com Telephone: 630-368-5026 Tel: 312-600-3763 Copies to: Peter M. Friedman Holland & Knight LLP 131 S. Dearborn, Suite 3000 Chicago, IL 6D603 Email: peter.friedman@hkiaw.com Telephone: 312-578-6566 F. 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. 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. G. Applicable Law and Choice of Venue. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Illinois, without regard to principles of conflict of laws. Except as to any matter within the jurisdiction of the ICC, all judicial ILLINOIS COMMUNM CHOICE AGGREGA"nON NETWORK P Aggregation Supply Agreement-village Board consideration Version 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, Oak Brook 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. H. Exhibits. Exhibits A through D attached to this Agreement are, by this reference, incorporated into and made part of this Agreement. I. Controlling Provisions. In the event of any inconsistency between the text of this Agreement and the terms of the Exhibits hereto, the text of this Agreement shall control. J. 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 unen€orceability 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. K. 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. L. 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 each Party expressly warrants that it has the power and authority to enter into the provisions, terms, and conditions of this Agreement. M. Authority to Sign Agreement. Vendor warrants to the Village that it is authorized to execute, deliver and perform this Agreement. The individual signing this Agreement on behalf of the Vendor warrants to the Village that he is authorized to execute this Agreement in the name of the Vendor. N. Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, the Village and the Vendor and their respective successors, grantees, lessees, and assigns throughout the Term of this Agreement. O. 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. P. Subcontractors. Vendor agrees to employ only those subcontractors that are necessary and are approved in advance by the Village. Subcontractors shall be held to the same strict confidentiality standards applicable to the Vendor, and shall be required to otherwise comply with the requirements of this Agreement. The use of subcontractors whether approved or unapproved shall not relieve the Vendor from the duties, terms and conditions in this Agreement. ARTICLE 9: REPRESENTATIONS AND WARRANTIES A. Mutual Representations and Warranties. Each Party represents and warrants to the other Party, as of the date of this Agreement, that: ILLINOIS COMMUNM CHOICE AGGREGATION NETWORK F a Aggregation Supply Agreement—Village Board consideration Version 1. 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; 2. 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; 3. 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; 4. It has reviewed and understands this Agreement and has independently assessed the merits of this Agreement; 5. It shall comply with all federal, state, and local laws, regulations, licensing, and disclosure requirements. 6. It shall maintain the confidentiality of Aggregation Members' account information, as required by 815 ILCS 505/2HH; 7. It shall not impose any conditions, terms, fees, or charges on any Member served by the Program unless the particular term, condition, fee, or charge is clearly disclosed to the Member at the time the Member enrolls in, or chooses not to opt out of, the Program. B. Additional Representations by the Vendor. The Vendor hereby further represents to Village, as of the date of this Agreement, that: 1. Vendor shall hold any and all subcontractors to the Confidentiality provision set forth below; 2. Vendor shall not compensate the Consultant with respect to the award of this Agreement or the performance of this Agreement; 3. Vendor shall obtain and maintain, for the duration of this Agreement, such proof of insurance as the Village of Oak Brook deem necessary; 4. Vendor warrants to all Members and to the Village that Vendor has good marketable title to all electricity sold hereunder, and that said electricity is free from all liens and diverse claims; 5. Vendor shall deliver or cause to be delivered all electricity supplied by Vendor to each Member to the appropriate node locations to effect delivery to the Point of Delivery; and 6. Vendor shall maintain all of the qualifications, certifications, approvals, and other authorizations required by law to provide the Services pursuant to this Agreement. n.LINOIS COMMUNITY CHOICE AGGREGATION NETWORK P s Aggregation Supply Agreement—Village Board Consideration Version ARTICLE 10* CONFIDENTIALITY Vendor shall preserve the confidentiality of the account information it receives as a result of the performance of its obligations set forth herein, A. Vendor 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 shall survive the termination of this Agreement, B. Notwithstanding the foregoing, Vendor 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. C. Vendor agrees to give the Village prompt notice of any discovery request or order, subpoena, or other legal process requiring disclosure of any confidential account information. D. To extent legally permissible and practicable, Vendor shall provide the Village with sufficient advance notice as to give the Village an opportunity, at the Village's discretion and sole cost, to seek to quash the subpoena, obtain a protective order or similar relief. E. In response to an order, subpoena, or other legal process, Vendor shall furnish only that portion of the confidential account information that is required or necessary in the opinion of Vendor's legal counsel. In addition, Vendor shall use reasonable efforts to obtain reasonable assurances that any account information so disclosed will be treated as confidential. F. Notwithstanding the foregoing, nothing herein shall prevent the use by Vendor of such customer account information for the purpose of communicating with its customers or former customers. In addition, nothing herein shall prevent Vendor from using information in the public domain prior to its disclosure under this Agreement. IN WITNESS WHEREOF, the Parties have duly executed this agreement to be effective on the date first written above. The Parties agree that this Agreement may be executed in separate counterparts and delivered by facsimile, or as an attachment to an electronic message (such as a pdf, of or other mutually acceptable type of file attachment), each of which when so executed and delivered shall constitute the one and the same original document. Vendor Village of ak Brook: Signed: Signe Name: Alexander Rozenblat Name: �noDxt LO,6�aAa,.6� General Counsel Title: Title: V 1, s I' 4/29/15 Date: Date: ILLINOIS COMATUNM CHOICE,AGGREGATION NETWORK Aggregation Supply Agreement-Village Board Consideration Version EXHIBIT A: Village MUNICIPAL AGGREGATION SUPPLY PRICING CONFIRMATION CONFIRMATION This Confirmation, once fully executed, is an agreement entered into pursuant to the terms of the Aggregation Program Agreement between Vendor and the Village (the "Village of Oak Brook "), and rms a part thereof. Vendor and Village of Oak Brook agree that the Aggregation Members shall receive the Fixed Rate set forth below for the Delivery Period set forth below: Delivery Period: Starting with the first meter read date in July 2015 and ending 24 months / billing cycles thereafter. Fixed Rate* $0.06754 per kWh The Price does not include utility distribution charges or applicable taxes. Both Parties recognize that components of the Fixed Rate include electric tariff charges that are authorized by the Illinois Commerce Commission, Regional Transmission Operator, other state or governmental agencies having jurisdiction, and/or the Federal Energy Regulatory Commission. Any increase in these charges subsequent to the execution of this Confirmation may be directly passed through to Aggregation Members by a corresponding increase in the Fixed Rate. Village of Oak, Brook : Vendor: lee By: By: Name: op ctj LoJ Name: Alexander Rozenblat Title: V ail General Counsel I" Date: Date: 4/29/15 ILLINOIS COIVIMUN=CHOICE AGGREGATION NETWORK Aggregation Supply Agreement—Village Board Consideration Version EXHIBIT B: ENROLLMENT FORMS AND TERMS AND CONDITIONS (Enrollment Forms to Be Provided) Eligo Energy IL, LLC-Terms of Service-Municipal Aggregation Customers Village of Oak Brook Electric Aggregation Program The Village of Oak Brook, pursuant to its Electricity Aggregation Program as authorized by referendum at the November 6, 2012 general election pursuant to Section 1-92 of the Illinois Power Agency Act, 20 ILCS 3855/1-92, selected Eligo Energy IL, LLC ("Vendor" or "Supplier") to supply the aggregation and to administer enrollments as described below pursuant to the April _. 2015 Aggregation Program Agreement by and between the Village of Oak Brook and Vendor ("Aggregation Program Agreement"). You, the account holder (also referred to as "Customer") for the utility account ("Account") applicable to the service address referenced on the letter accompanying this Opt Out Notice (the "Account"), and Vendor agree to the following terms and conditions. Vendor and Customer (individually referred to as "Party" and collectively as "Parties") agree to the following Terms of Service ("Agreement"), as of first meter read date in July of 2015 (the "Effective Date"). This Agreement authorizes Vendor to change Customer's electric supplier in the territory of Commonwealth Edison (the "Utility") 1. Price and Service: For the Initial Term, and pursuant to the Aggregation Program Agreement, Customer shall pay $0.06754 per kwh ("Kwh Rate" or "Price"), multiplied by the billing cycle usage for the Utility account numbers ("Accounts"). Both Parties recognize that components of Vendor's charges include electric tariff charges that are authorized by the Illinois Commerce Commission, Independent System Operator, other state or governmental agencies having jurisdiction, and/or the Federal Energy Regulatory Commission. Any new tariff charges that become effective after the Utility completes Customer's enrollment and Vendor's services commence (the commencement of the "Delivery Period") may be directly passed through to Customer by a corresponding increase in the Price. Vendor shall not impose any fees or charges on rn Customer other than the Price set forth above. While Vendor does not charge Customer a separate fee to switch to Vendor's service, if Customer is currently receiving electricity pursuant to an agreement with another alternative retail electric supplier, that supplier may charge Customer for switching electricity providers. Customer may compare the fixed price terms herein to market conditions by looking at the rates posted on Vendor's website and on Customer's monthly bill. In addition, Customer shall pay and be responsible for all other amounts related to the purchase and delivery of electricity, including applicable taxes and charges. If Customer is interval metered, Customer shall also be responsible for additional costs resulting therefrom. Please see Vendor's website www.eligoenergy.com for current market conditions and updates. 2. Enrollment: (a) Opt-Out Enrollment (Automatic Enrollments due to non-action by DATE). Enrollment is automatic if(i) the account(s) to be served is/are eligible and (ii) Customer does not opt-out of Village's electric aggregation program. IF YOU DO NOT WISH TO PARTICIPATE IN THE AGGREGATION PROGRAM, YOU MUST OPT-OUT BY DATE. YOU CAN OPT-OUT Aggregation Supply Agreement—Village Board Consideration Version BY COMPLETING AND RETURNING THE ENCLOSED OPT-OUT POSTCARD. (b) Opt-In Enrollment (Affirmative Enrollments). Enrollment for the remainder of the current program 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) Customer chooses to opt-in to the program. You can Opt-In by (1) calling Vendor toll free at 1-888-744- 8125 or (2) contacting Vendor online at www.eligoenergy.com/cities/i_l/oakbrook. 3. Eligibility: Customer and the Accounts to be served (i) must be located within the jurisdictional boundaries of the Village, (ii) must be served by the Utility on one of the following rate classes: BES, BESH, and RDS (which in general terms apply to residential non-electric space heat service and small commercial customers), (iii) may not be under agreement with another Alternative Retail Electric Supplier, and (iv) must be in good credit standing with the Utility. 4. Term: This Agreement shall become binding on the Effective Date, however, this Agreement is contingent upon: (a) successful enrollment by the Utility and (b) the passage of the Rescission Period without effective cancellation by Customer. Successful enrollment by the Utility is dependent upon (i) the eligibility of Customer's Utility accounts, as determined by the Utility, to take service from an alternative retail electric supplier and to participate in the Utility's purchase of receivables program, and (ii) the accuracy and completeness of the information submitted for enrollment. Service will commence on the later of(a) the meter read in July of 2015 or (b) the first meter read date following successful enrollment by the Utility. Service shall remain in effect for 24 months / billing cycles ("Initial Term"), unless terminated pursuant to the terms of this Agreement. This Agreement will start when Vendor provides confirmation to Customer's local distribution company and the local distribution company initiates the change. 5. Rescission Period: Customer may cancel enrollment by contacting the Supplier at 312-260-0885 without penalty up to 10 calendar days after the Utility processes the enrollment request(the"Rescission Period"). 6. Termination; Remedies: If either Party defaults on its obligations under this Agreement (which may include Customer's switching to another electric supplier or the Utility or Customer's failure to pay the Utility), the other Party may terminate this Agreement, as applicable. In addition, if Customer chooses to terminate this Agreement based on a recommendation from the Village in the event that Vendor has materially breached the Aggregation Program Agreement between Vendor and the Village, then Vendor shall not be liable to Customer for any damages or penalties resulting from such termination of this Agreement, including claims related to the price received from the Utility or an alternate retail electric supplier being higher than the Price herein, unless Vendor has also materially breached these Terms of Service. 7. Renewal: In the event that Vendor enters into an agreement with the Village to renew the municipal aggregation agreement before the expiration of the Initial Term, between 30 and 60 days prior to the end of the Initial Term or a Renewal Term (whichever is.in effect, hereinafter the "Current Term"), Vendor may send Customer an offer for a Renewal Term. This offer will include, without limitation, the new Price, any applicable early termination fees (if any), and the Renewal Term ("Offer"). In the event Vendor does not receive Customer's rejection of the Offer within 21 days, the Offer will be deemed accepted by Customer without the need for further signature or other affirmative action by Customer. If Customer rejects the Offer in the manner directed in the Offer, Customer's Accounts will be returned to Utility service at the end of the Current Term. Aggregation Supply Agreement—Village Board Consideration Version 8. Billing and Payment: Customer will continue to receive one monthly electric bill processed and provided by the Utility for Vendor's charges and Utility's delivery charges on the invoice(s) Customer receives from the Utility, and such billing and payment shall be subject to the applicable Utility rules regarding billing and payment procedures. Vendor's charges or credits not invoiced through the Utility shall be invoiced or credited, respectively, directly by Vendor. Vendor may cause the Utility to correct previous invoices in the event of invoicing errors. In the event of a Customer bankruptcy, late payment or nonpayment, Vendor has the right to cancel this Agreement. 9. Taxes: Any tax levied against Vendor by any governmental entity, exclusive of Vendor's income tax or taxes levied on Vendor's real or personal property, which must be paid by Vendor shall be passed through to and borne and reimbursed by Customer. Customer must provide Vendor with any applicable exemption certificates. Customer shall pay any such taxes unless Vendor is required by law to collect and remit such taxes, in which case Customer shall reimburse Vendor for all amounts so paid. 10. Contact Information: For any service question or in the event of an emergency such as a power failure or downed power line, Customer should contact ComEd at 800-334-7661. Customer may contact Vendor at 888-744-8125. For issues concerning this Agreement, Vendor will attempt to resolve the matter within 5 business days of receiving a call or the complaint from Customer. If Customer is not satisfied with the response, or to obtain consumer education materials, Customer may contact the Illinois Commerce Commission at 800-524-0795 or 800-858-9277 for TTY hearing-impaired Customers or visit its website at www.icc.iIIinois.gov. Customer may also contact the Illinois Attorney General's Office at 1-800-386-5438. Customer shall contact Vendor with any change in Customer's email address and/or withdrawal of consent for electronic retention of customer information. 11. Customer Relocation: Vendor will waive any fees if Customer moves to a new address outside the Village's boundaries and provides notice to Vendor that Customer is moving prior to termination. 12. Assignment: Customer may not assign this Agreement without Vendor's written consent. Vendor may transfer, assign or sell this Agreement: (a) in connection with any financing; (b) to any of its affiliates; (c) to anyone succeeding to all or substantially all of Vendor's assets or business; or(d)to another supplier licensed by the Illinois Commerce Commission. This Agreement is binding upon Customer and Vendor, and each party's heirs, successors and permitted assigns. Any required assignment notice, will be considered to have been made if mailed to the address in Vendor's records for Customer's account. There are no third-party beneficiaries to this Agreement. 13. Exclusion of Cash Back Bonus: As a municipal aggregation Customer, Customer is not eligible to participate in Vendor's promotional cash-back or rebate bonus program. 14. Limitations: ALL ELECTRICITY SOLD HEREUNDER IS PROVIDED "AS IS", AMD VENDOR EXPRESSLY DISCLAIMS ALL OTHER, WARRANTIES, W=THER EXPRESS OR IMPLIED; INCLUDING BUT NOT LIMITED TO ANY I1VMLIED IWARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. IN NO EVENT SHALL 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. Aggregation Supply Agreement—Village Board Consideration Version 15. Force Majeure: Except for Customer's obligation under this Agreement to pay Vendor for its services, neither Vendor nor Customer will be liable to the other for failure to perform an obligation either was prevented from performing due to an event beyond its 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. 16. 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 Vendor to Customer at the delivery point, which shall be the Utility. Customer appoints Vendor as its agent for the purposes of effectuating delivery, including for receipt of billing and usage data from the Utility. This Agreement shall be considered a Letter of Agency and constitutes the entire agreement between the Parties, superseding all verbal and written understandings. This Agreement shall only be amended in a writing signed by both Parties or with notice from Vendor to Customer as described above. Customer should contact the Utility in the event of an electric emergency at the following numbers: for ComEd residential customers, 1-800-Edison-1; for ComEd business customers, 1-877-4-ComEd-1. Future correspondence may be sent by Vendor to Customer via first class mail and/or electronic mail. ACCEPTANCE OF AGREEMENT: This Agreement is hereby -unconditionally accepted. Eligo Energy IL. LLC is authorized to switch Customer's utility supplier for the generation service charge. I will notify and,lor cancel any previous agreement I may have in place with any other supplier, if applicable. Aggregation Supply Agreement—Village Board Consideration Version EXHIBIT C: INSURANCE REQUIREMENTS INSURANCE: Certificates of Insurance and Additional Insured Endorsement shall be presented to the Village within fifteen (15) days after the receipt by the Contractor of the Notice of Award and the unexecuted contract, it being understood and agreed that the Village will not approve and execute the contract nor will the bid guarantee be returned until acceptable insurance certificates are received and approved by the Village, Each Contractor performing any work pursuant to a contract with the Village of Oak Brook and each permittee working under a permit as required pursuant to the provisions of Title 1, Chapter 8 of the Code of Ordinances of the Village of Oak Brook (hereinafter referred to as "Insured") shall be required to carry such insurance as specified herein. Such Contractor and permittee shall procure and maintain for the duration of the contract or permit insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work under the contract or permit, either by the Contractor, permittee, or their agents, representatives, employees or sub Contractors. A Contractor or permittee shall maintain insurance with limits no less than: A. General Liability - $2,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage, provided that when the estimated cost of the work in question does not exceed $25,000, the required limit shall be $1,000,000, B. Automobile Liability (if applicable) - $1,000,000 combined single limit per accident for bodily injury and property damage; C. Worker's Compensation and Employer's Liability - Worker's Compensation limits as required by the Labor Code of the State of Illinois and Employer's Liability limits of$1,000,000 per accident. Any deductibles or self-insured retention must be declared to and approved by the Village. At the option of the Village, either the insurer shall reduce or eliminate such deductible or self-insured retention as respects the Village, its officers, officials, employees and volunteers; or the Insured shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses to the extent of such deductible or self-insured retention, The policies shall contain, or be endorsed to contain, the following provisions: D. General Liability and Automobile Liability Coverage- (1) The Village, its officers, officials, employees and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of the Insured; premises owned, occupied or used by the Insured. The coverage shall contain no special Attachment C Aggregation Supply Agreement-Village Board Consideration Version limitations on the scope of protection afforded to the Village, its officers, officials, employees, volunteers or agents. (2) The Insured's insurance coverage shall be primary insurance as respects the Village, its officers, officials, employees, volunteers and agents. Any insurance or self-insurance maintained by the Village, its officers, officials, employees, volunteers or agents shall be in excess of the Insured's insurance and shall not contribute with it. (3) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Village, its officers, officials, employees, volunteers or agents. (4) The Insured's insurance shall apply separately to each covered party against whom claim is made or suit is brought except with respect to the limits of the insurer's liability. E. Worker's Compensation and Employer's Liability Coverage The policy shall waive all rights of subrogation against the Village, its officers, officials, employees, volunteers and agents for losses arising from work performed by the insured for the Village. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail has been given to the Village. Each insurance policy shall name the Village, its officers, officials and employees, volunteers and agents as additional Insureds. Insurance is to be placed with insurers with a Best's rating of no less than A: VII, Each Insured shall furnish the Village with certificates of insurance and with original endorsements effecting coverage required by this provision. The certificate and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be on forms approved by the Village, see Section C of this Bid Package, and shall be subject to approval by the Village Attorney before work commences. The Village reserves the right to require complete, certified copies of all required insurance policies, at any time. Each insured shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. Attachment C EXHIBIT D-VILLAGE PLAN OF GOVERNANCE VILLAGE OF OAK BROOK ELECTRICITY AGGREGATION PROGRAM Plan of Operation and Governance OF 041C�& v , O v p V �O U NTH' 1. Purpose of Electricity Aggregation Program & Services This Plan of Operation and Governance has been developed in compliance with 20 ILCS 3855/1-92 regarding governmental aggregation of electric service. The statute defines two types of aggregation programs that may be enacted by a governmental entity; opt-in aggregation and opt-out aggregation. The Village of Oak Brook ("Village") will administer an opt-out aggregation program that will automatically include all eligible electric accounts that would receive a lower rate than the prevailing ComEd rate from an Alternative Retail Electric Supplier("Supplier"). Those customers will be given prior notice entitling them to affirmatively elect not to be part of the Program. The Village passed the necessary resolution to place the issue of Opt-Out Governmental Aggregation of Electricity on the April 5, 2011 ballot. The ballot issue subsequently passed. The Village will follow the Plan of Operation and Governance ("Plan") outlined below. This Plan was adopted after two public hearings were held in accordance with 20 ILCS 3855/1-92. The Village's Aggregation Program ("Program") seeks to aggregate the retail electric loads of eligible customers located within the Village to negotiate the best rates for the generation supply of electric power. With a Village population of approximately 7,883 the Program has the potential to combine residential accounts and small commercial accounts into a buying group that will be attractive to an Alternative Retail Electric Supplier ("Supplier"). Participation in the Program is voluntary. Any individual customer ("Member") has the opportunity to decline to be a Member of the Program and return to the local utility (ComEd) standard offer of service or to enter into a power supply contract with any Alternative Retail Electric Supplier. Residential and small commercial electric customers often lack the ability to effectively negotiate electric supply services. The Village's Program provides them an opportunity to benefit from professional representation and bargaining power achieved through an aggregation program. The Program is designed to reduce the amount Members pay for electric energy and to gain other favorable terms of service. The Village will not buy and resell the power to the Program Members, Instead, the Village will competitively bid and negotiate a contract with a Supplier to provide firm, full- requirements generation service to the Members of the Program. 2. Bidding/ Contract Procedures The Village may elect to hold an individual bid or participate in a group bid with other municipalities. The bidding process, whether by the Village or in concert with other municipalities, must be conducted in compliance with all applicable Village Codes concerning the bidding process. The Village may, but is not required to, retain the services of a consultant, broker, or other expert in the field of electrical aggregation to assist in the preparation of the bidding documents and in managing the bidding process. The Village will retain the full and absolute right to accept, accept with conditions, or reject any bid. If this bidding process does not result in the identification of an acceptable bidder, the Village will conclude the bidding process and not proceed with the Aggregation Program at this time. By majority vote of the Corporate Authorities, the Village may select an Alternative Retail Electric Supplier to provide electric power to the Program according to the terms of a written power supply agreement entered into by and between the Supplier and the Village. By majority vote of the Corporate Authorities, the Village may determine not to enter into a power supply agreement with any Supplier and in such event eligible customers shall continue to purchase electric power through ComEd. If the Corporate Authorities enter into a power supply agreement with a Supplier, ComEd will continue to provide and service delivery of the electricity purchased from the Supplier, and metering, repairs and emergency service will continue to be provided by ComEd. The Program may be terminated upon the termination or expiration of the power supply agreement without any extension, renewal, or subsequent power supply agreement being negotiated. Each individual Member receiving electric supply service under the Program will receive notification 45-90 days prior to termination of the Program. In the event of termination, Members in the Program would either return to ComEd supply service or chose another supplier on their own. In the event that the power supply agreement is terminated prior to the end of the term, each individual member will receive written notification of the termination of the Program at least 60 days prior to termination of service. 3. Determination of Rates and Other Charges 3.1 Rates The Village will solicit bids from Alternative Retail Electric Suppliers certified by the Illinois Commerce Commission to provide electricity to aggregation programs. The bid documents shall require the suppliers to offer a generation charge for firm, full-requirements supply. The prices to be charged to Members in the Program will be those of the Supplier determined to be the lowest responsive, responsible bidder. Members will be notified of the rates and terms of the Program through a direct mailing sent to each eligible resident and business within the Village limits. 3.2 Charges Neither the Village nor the selected supplier will impose any terms, conditions, fees, or charges on any Member served by the Program unless the particular term, condition, fee, or charge is clearly disclosed to the Member at the time the Members chose not to opt-out of the Program. ComEd will continue to bill for Late Payments, Delivery Charges and Monthly Service Fee,etc. These charges apply whether or not a Member switches to the Program's Supplier. Switching generation suppliers will not result in any new charges billed to the Member. 3.3 Switching Fees Should ComEd assess a switching fee for Members voluntarily remaining in the aggregation program; the Bid will be written to require the selected supplier to pay the switching fee without assessing a fee to the Members. 3.4 Early Termination Fee Members may terminate their agreement without penalty if they relocate outside of the Village. Members that leave the Program for other reasons may be assessed an early termination fee by the Supplier. The Village will negotiate with the Supplier to ensure that any early termination fee assessed is reasonable and clearly stated in the opt-out disclosure notice. 4. Determination of Eligible Customer Pool Under the opt-out aggregation provisions, all eligible electric consumers within the Village will be automatically included in the Program. However, such customers will be given prior notice entitling them to affirmatively elect not to be part of the Program. Prior to mailing opt-out notices, a thorough review will be performed to see that all ineligible customers are excluded. The review process will include the efforts of numerous parties and utilize a number of resources: • ComEd will query their customer database using best efforts to capture all accounts within the Village limits. • The Supplier, with assistance from the Village, using available Village resources and publicly available material shall screen out customers who are not located within the Village limits. Those resources may include any or all of the following: property records, water and/or sewer records, fire and/or police department address records, 911 address records, street listings, Village maps, internet maps, county parcel mapping databases, and geographical information systems (GIS). • Ineligible accounts will be screened out based on codes provided in the ComEd data. • The data shall be reviewed to see that all zip codes have been included, all streets included, all customer classes, all customer rate schedules, and finally that an expected total for a community of this population was turned over. • Any suspected omissions will be reported to ComEd along with a request to furnish that data. S. Opt-Out Process The Village is using an Opt-Out form of Governmental Aggregation pursuant to 20 ILCS 3855/1-92. Any such person that opts-out of the aggregation program pursuant to stated procedure will default to the standard service offer provided by ComEd until the person chooses an alternative supplier. When a successful supply offer is found the Village shall order the eligible customer list from ComEd. ComEd shall turn over the list to the Village upon request. Once the list is obtained, it will be shared with the selected Supplier. The Village will arrange for the opt-out notices to be sent to Members by a party other than the Supplier within thirty(30) days from the Village's receipt of the customer data from ComEd. The selected Supplier will not be required to compensate the Village for printing and mailing costs associated with the issuance of the opt-out disclosure notices. The notices will be mailed to the owner or occupant residing at the electric account mailing address shown on ComEd's customer list. The selected Supplier and the Village will agree upon the format of the opt-out notice prior to mailing it to eligible Members. A Village official will sign the notice and it will contain the Village's name and logo on the outside to clearly indicate to the recipient that it is a notice from the Village. Prior to mailing opt-out notices, a thorough review will be performed to see that all eligible Member receiving and offer are sent the notice. The review process will include the efforts of numerous parties and utilize a number of resources as specified in Section 4 of this Plan. Following acceptance of an offer by the Village, the Village will arrange to mail opt-out notices to eligible Members receiving an offer. Members will have at least twenty-one (21) days from the postmark date on the notice to postmark the return opt-out card if they do not wish to participate in the Village's program. The Supplier may offer additional means of opting out, such as, a toll-free phone number, website, email address, or fax number. The selected supplier will not enroll those accounts opting out from the Program. In the event that an eligible Member is inadvertently not sent an opt-out notice and is omitted from the Program, the Supplier shall, upon request, enroll the eligible Member at the group rate for the remaining term. All members of the Program will also be given an opportunity to opt-out without penalty at least once every three(3)years. Procedure Steps: 1. The selected Supplier and the Village will agree upon the format of the opt-out notice prior to mailing it to eligible Members; 2. The Village will arrange to distribute an Opt-Out Form to all eligible Members via first-class U.S. Mail; 3. Recipients will have at least twenty-one (21) days from the postmark on the notice to notify the selected Supplier if they do not want to be part of the program; 4. Members will be able to opt-out by returning an opt-out card via U.S. Mail to the selected Supplier. The Supplier may offer additional means of opting out, such as a toll-free phone number,website, email address,or fax number; S. Additionally, Members who do not opt-out per step 4 above will receive written notification from ComEd stating that they are about to be switched. That notice will inform them that they have seven(7) days to rescind the contract by contacting ComEd; and 6. The selected Supplier will not enroll those accounts opting out from the Program. The opt-out notice will clearly notify the Program Members of the rates to be charged for electricity and other terms of the contract with the selected supplier. 6. Customer Eligibility All eligible Members are included in the Program but the selected Supplier's bid will determine which groups receive an offer and opt-out notice. It is envisioned that most residential and small commercial customers supplied by ComEd within the Village limits are likely to receive an offer. The following eligibility requirements apply: • Customers must not have opted-out of the Program • Customers must not be supplied generation service from another supplier • Customers must not be supplied generation service from ComEd under ComEd Rate BESH — Basic Electric Service with hourly billing and Rate RDS—Retail Delivery Service • Commercial customers must have a Peak Demand of<= 100kW Customers receiving power from ComEd under particular tariffs as they may be approved and/or amended by the Illinois Commerce Commission from time to time may not be eligible to enroll in the aggregation program. Utility rules approved by the Illinois Commerce Commission (ICC) or other regulatory agencies may determine eligibility to enroll in the aggregation program, Eligibility may be limited by a Supplier's offer. For example, a fixed rate might not be offered to an account if they would not save when compared to the prevailing ComEd rate. The Village may expand the aggregation program to commercial customers with annual consumption of greater than 15,000 kWh through an Associate Member offer. At minimum, an Associate Member offer would require the Supplier to provide customized pricing with preferred contract terms to commercial customers with annual consumption greater than 15,000kWh upon request. 7. Billing Procedures The Village will utilize the coordinated billing services of ComEd and the selected Supplier. Most customers are expected to receive a single bill from ComEd that itemizes among other things, the cost of generation provided by the Supplier. In some instances, particularly for commercial accounts, the Supplier may request that dual billing be used. In this case the supplier would issue a bill for their supply service and ComEd would issue a bill for their delivery services. A single bill may also be issued by the Supplier at the sole discretion of the Village. Members are required to remit and comply with the payment terms of ComEd and/or the Supplier if dual billing or single billing by the Supplier is used. This Program will not be responsible for late or no payment on the part of any of its members. Furthermore, slow or no payment on the part of some Members will not adversely impact the rates charged to other Members. The selected Supplier shall not charge more than 1% percent per month for overdue balances owed the selected Supplier. 8. Credit/ Deposit Requirements Collection and credit procedures remain the responsibility of ComEd, the selected Supplier, and the individual Member, Members are required to remit and comply with the payment terms of ComEd and/or the Supplier. This Program will not be responsible for late or no payment on the part of any of its Members. The Village will have no separate credit or deposit policy. 9. Procedures for Handling Customer Complaints and Dispute Resolution Members have multiple means of addressing complaints. As a general rule, concerns regarding service reliability should be directed to ComEd, billing questions should be directed to ComEd or the selected Supplier, and any unresolved disputes should be directed to the ICC. 10.Moving Into the Village Residents and businesses that move into the Village will NOT be automatically included in the Village's Program. The Village cannot guarantee the rates, terms, and conditions to Members enrolling after the 21-day opt-out period of the initial enrollees. Members wishing to opt-in to the Program may contact the Supplier to obtain enrollment information. There is, however, no guarantee that customers opting- in at a later date will receive the same price, terms, and conditions as did the initial participants. The selected Supplier's decision whether or not to extend an offer will be based, in part, on the market prices at the time of request. 11.Moving Within the Village and Maintaining the Same Account Number The selected Supplier shall continue service at the same rate and under the same terms and conditions for any Member who relocates within the Village prior to the expiration of the contract term, providing that the Member notifies the Supplier of their desire to do so with thirty (30) days notice. Moving within the Village may cause the Member to be served for a brief period of time by ComEd. The Supplier shall have the right to bill the participant for any associated switching fee imposed by ComEd. Members may also opt-out without penalty under these circumstances. 12.Joining the Aggregation Group after Opting-Out Members who have left the aggregation group and wish to rejoin at a later date are treated in the same manner as new residents moving into the Village. These customers may contact the Supplier at any time to obtain enrollment information. There is, however, no guarantee that customers opting-in at a later date will receive the same price, terms and conditions as did the initial participants. 13.Reliability of Power Supply The Program will only affect the generation source of power. ComEd will continue to deliver power through their transmission and distribution systems. Responsibility for maintaining system reliability continues to rest with ComEd. If members have service reliability problems, they should contact ComEd for repairs. The ICC has established "Minimum Reliability Standards" for all utilities operating distribution systems in Illinois. Customer outages, duration of outages, interruptions, etc., are monitored to ensure reliability remains at satisfactory levels. In addition to maintaining the "wires" system, ComEd is required to be the "Provider of Last Resort." This means, should the selected Supplier fail for any reason to deliver any or all of the electricity needed to serve the Members needs, ComEd will immediately provide for the shortfall. ComEd would then bill the Supplier for the power provided on their behalf. The Members would incur no additional cost. 14.Supplier Qualification Selection Criteria Only Suppliers meeting strict criteria will be considered: • Suppliers will need to be certified by the Illinois Commerce Commission. • Registered with ComEd to do business in their service territory. Both the certification and registration ensure that Suppliers possess the managerial, technical, and financial competence to perform the services they offer. • Agree to hold harmless the Village from any financial obligations arising from the Program. • The selected Supplier will need to agree to notify the Village and negotiate with the Village at least sixty (60) days in advance of attempting to terminate the agreement for any reasons other than (i)the scheduled end date or (ii) Force Majeure. • The selected Supplier shall demonstrate its creditworthiness by possessing an investment grade long-term bond rating from at least two major rating agencies. • The Supplier must reimburse the Village for costs associated with developing and administering the aggregation program, except for costs related to the mailing and delivery of opt-out notices. Should the Supplier be unable to demonstrate its creditworthiness, the Supplier will be required to provide: • A Letter of Credit; or • A Parental Guarantee from a company that is deemed creditworthy; or • A Surety Bond. Details of the credit type and amount will be subject to negotiation. Pursuant to 20 ILCS 3855/1-92,Supplier shall: • Provide for universal access to all applicable residential customers and equitable treatment of applicable residential customers. • Describe demand management and energy efficiency services to be provided to each class of customers. • Meet any requirements established by law concerning aggregated service offered pursuant to the 20 ILCS 3855/1-92, 15.Miscellaneous The operation of the Village's Program may be impacted by any of the following: • 20 ILCS 3855/1-92 as it may be amended from time to time. • Federal Energy Regulatory Commission (FERC) tariffs as may be enacted or amended from time to time. • Illinois Commerce Commission (ICC) rules and regulation as may be enacted or amended from time to time. • ComEd tariffs as approved or amended from time to time by the ICC. • Federal, state, and local laws. • Rules, regulations, and orders approved or enacted by federal, state, or local regulatory agencies. The Village will maintain a copy of this Plan of Operation and Governance on file at its administrative office. This Plan will be kept available for public inspection. It will, upon request, be copied for any existing or potential Member of the aggregation in accordance with the Village rules for copying public documents.