Electric Aggregation AgreementAggregation Supply Agreement
Aggregation Program Agreement
By and Between
The Village of Oak Brook and Vendor
This Aggregation Program Agreement Is entered Into as of this 14th day of June, 2017
("Agreement"), by and between the Village of Oak Brook ("Village"), an Illinois municipal
corporation, and Vendor ("Vendor'), a [State of Incorporation] corporation with an office
located at [Local Illinois Address]. Vendor and the Village of Oak Brook are sometimes
hereinafter referred to individually as a "Party" or collectively as the "Parties".
WITNESSETH
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 -out" program that applies to all residential
and small commercial retail electrical customers who do not affirmatively 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 May 31, 2017; 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.
Page I1
Aggregation Supply Agreement
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 3855/1-1 at 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
ICC 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).
I. "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 21-11-1 of
the Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/21-11-1
Page 12
Aggregation Supply Agreement
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. `ICC" 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" shalt 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 {JM 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 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.
X. "REC" shall mean Renewable Energy Credits.
Y. "Regulatory Event' is defined in Section 6.8 of this Agreement.
Z. "Services" is defined in Article 5 of this Agreement
AA. "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.
BB. "Term" is defined in Section 3.A of this Agreement.
CC. "Terms and Conditions" is defined in Section 5.B of this Agreement.
DD. "Village" or "The Village" shall mean the Village of Oak Brook, acting by and through
its corporate authorities, and authorized Village employees.
EE. "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
G a g e 13
Aggregation Supply Agreement
Aggregation Members for 14 months (the "Initial Agreement Tenn"), unless terminated early
pursuant to Section 5 -EA or Article 6 of this Agreement, or unless the Price to Compare for
ComEd Default Tariff Service falls below the Fixed Price. The Village and the Vendor may
extend the Initial Agreement Term for additional periods of time up to _ 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'D. 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 City/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 5/16-102, and Section 21-11-1 of the Consumer Fraud and Deceptive
Business Practices Act, 615 ILCS 505/2HH.
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 Villaa_e 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.
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 Lam'), including the terms and
conditions of this Agreement, in providing the Services pursuant to this Agreement.
Page 14
Aggregation Supply 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 E.
ARTICLE 5: VENDOR SERVICES
The Vendor shall supply all of the following services in support of the Program (collectively, the
"Services" ):
[Each Section of this Article is to be customized according to response of selected
Bidder, in order to specify how the bidder shall fulfill the responsibilities stated in the RFP
that are reproduced here]
A. Electricity Supply. Vendor shall supply firm power requirements to each Aggregation
Member which it is ultimately contracted to serve.
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, PJM 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:
[specify Standard Supply Mix and/or Enhanced Renewable Energy Mix, as
applicable)
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.
P a g e 15
Aggregation Supply Agreement
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,.
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 Com Ed 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:
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.
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
P a g e 16
Aggregation Supply Agreement
inquiries submitted through the website platform be generated
within 24 hours.
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:
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.
Credit/Deposit Requirements. Collection and credit procedures are to
be the responsibility of ComEd, the Vendor, and the individual Member.
Members will be required to comply with the payment tenns 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.
Pape 17
Aggregation Supply Agreement
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 ICC 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 fall 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 Disenrollment 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 C 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 C ("Terns and Conditions").
(INSERT examples provided by the Vendor In their RFP process)
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.
2. Cooperation. Vendor shall cooperate with the Village in monitoring and tracking
Program activity. This may require Vendor to report progress, problems and
V a g e 18
Aggregation Supply Agreement
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 is set forth in Exhibit A.
[INSERT based upon pricing submittal accepted by the Village during Phase 2 of RFP
process)
F. Reimbursement of Village Costs, Within 90 days after the Effective Date of this
Agreement, Vendor shall reimburse the Viliage $�_ for professional, legal, Consultant,
and administrative costs Incurred by the Village in connection with the adoption of the
Aggregation Program and the negotiation and execution of this Agreement.
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 shall: (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 all of
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 all
of the participants to ComEd, or to any other energy supplier, then: (i) 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 for 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:
P a g e 19
Aggregation Supply Agreement
5.1.1.1 A breach of the confidentiality provisions set forth in Article 10 of this
Agreement;
5.1.1.2 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
5.1.1.3 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":
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 Govemment 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.
vage 110
Aggregation Supply Agreement
C. Force Maleure 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
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. 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 VIII 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.
Aggregation Supply Agreement
B. Amendment. All amendments or modifications to this Agreement shall be made in
writing and signed by both Parties before they become effective.
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, or as applicable pursuant to the
appropriate Electric Utility tariff. 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 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, 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:
Riccardo F. Ginex
Village Manager
Village of Oak Brook
1200 Oak Brook Road
Oak Brook, Illinois 60523
With a copy to:
Stewart H. Diamond, Partner
Ancef Glink Diamond Bush DiCianni &
Krafthefer, P.C.
140 South Dearbom Street, 6th Floor
Chicago, IL 60603
To Vendor:
Mark Fanning
Managing Director, Retail
Dynegy Energy Services, LLC
1500 Eastport Plaza Dr.
Collinsville, IL 62234
With a copy to:
Judith Kim, Sr. Corporate Counsel
Dynegy Inc.
601 Travis St., Ste 1400
Houston, TX 77002
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
Page 122
Aggregation Supply Agreement
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
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 _ 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
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.
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 Sian 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.
P a g e 113
Aggregation Supply Agreement
ARTICLE 9: REPRESENTATIONS AND WARRANTIES
A. Mutual Representations and Warranties. Each Parry represents and warrants to the
other Party, as of the date of this Agreement, that:
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:
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 [City/Village] that Vendor has good
marketable title to all electricity sold hereunder, and that said electricity is free from
all liens and diverse claims;
P 0ge 114
Aggregation Supply Agreement
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.
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.
Page IIS
Aggregation Supply 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
Signed:
Name:
Title:
Date:
Date: 6 - c).0 - I rJ
P a g e 116
Aggregation Supply Agreement
EXHIBIT A: 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
forms 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: August 2017 through October 2018
Fixed Rate: $0.06675 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.
REC obligations would also be inserted here
Village of Oak Brook: T
r:
Name C.C-ii 1— 64Name:
Q "4-
Title: ►C�AGr£ A.I ���Ct Title:rpyJ p Date: Date:
(p _ Date: 7
Page I17