Loading...
HomeMy WebLinkAbout38-05 Resolution RECORD OF ORDINANCES Dayton Legal Blank, Inc. Form No. 30043 Ordinance No. 38-05 Passed .20_ A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER AN AGREEMENT WITH A COMPETITIVE RETAIL NATURAL GAS SERVICES (CRNGS) PROVIDER WHEREAS, Ohio Revised Code ~ 4929.26 permits a municipality to aggregate customers - within its jurisdiction in order to facilitate customer choice in natural gas power suppliers and to promote competitive natural gas utility services within the City; and WHEREAS, on May 6, 2003 the electors of the City of Dublin authorized the City to aggregate customers located within the boundaries of the City; and WHEREAS, the City has adopted a Plan of Operation and Governance for the implementation of the City's Municipal Natural Gas Aggregation Program in accordance with Ohio Revised Code ~ 4929.26 (C); and WHEREAS, the City extended its Agreement with American Municipal Power of Ohio, Inc. (AMPO) to provide management services for the natural gas aggregation program; and WHEREAS, AMPO has recommended that the City negotiate the framework of a contract with a Competitive Retail Natural Gas Service (CRNG) provider, yet to be determined, for the provision of competitive retail natural gas aggregation supply and services; and WHEREAS, due to the volatility of the natural gas supply market, it is necessary to authorize the City Manager to enter into an agreement to achieve the most advantageous terms and conditions; and WHEREAS, the City desires to continue to provide natural gas aggregation services as a "value added" service that provides the Dublin community additional choice for supply of natural gas. NOW, TtEREFORE, BE IT RESOLVED by the Council ofthe City of Dublin, State of Ohio, of the elected members concurring that: Section 1. The City Manager is hereby authorized to enter into an Agreement with the appropriate CRNG provider, for the provision of competitive retail natural gas aggregation services to achieve the most advantageous terms and conditions. The Agreement authorized by this Ordinance shall, at a minimum, include the following terms and conditions: (a) Savings to aggregated customers will be either a fixed price for a one, two or three- year period or a rate at a percentage below Columbia Gas' Cost Recovery (GCR) rate or more ifpossible. (b) The City shall have no financial responsibility whatsoever for the non-payment by any customer of the aggregation program; (c) The terms ofthe Agreement shall not be amended without the express authorization of the City Manager. (d) The terms of the Agreement shall be for a negotiated period. (e) The City Manager or her designee shall be informed of any vendors used for soliciting customers or promotion of services by the CRNGS Provider. (f) The Agreement shall not be transferred or assigned by the CRNGS Provider without prior authorization of City Council. RECORD OF ORDINANCES Dayton Legal Blank, lnc, Form No, 30043 Ordinance No. 38-05 Passed Page 2 ,20_ (g) The CRNGS Provider's rates shall include a per CCF (per one hundred cubic foot) administrative fee. Section 2. The Agreement shall not become effective until approved as to form by the City Attorney and signed by the City Manager. Section 3. All advertisements, brochures, public relations and consumer education materials produced by or for the City in relation to the Proposal and the Agreement authorized herein shall be submitted to the City Manager or her designee for review and approval prior to dissemination. Section 4. This Resolution shall take effect and be in force on the earliest date permitted by law. Passed this lii4- day of ~..- ,2005 ) . . Mayor - Presiding Officer ATTEST: ~-C?f~ Clerk of Council I hereby certify that copies of this Ordinance/Resolution were posted in the City of Dublin in accordance with Section 731.25 of the Ohio Revised Code. Department of Economic Development 5800 Shier Rings Road. Dublin, OH 43016-8716 Phone: 614-410-4619. Fax: 614-761-6506 CITY OF DUBLIN Memo TO: All Members of the Dublin City Council FROM: Jane S. Brautigam, City Manager (_J~S. G~' DATE: May 20, 2005 INITIATED BY: Dana L. McDaniel, Deputy City Manager/Director of Economic Development RE: Resolution No. 38-05 BACKGROUND: The City of Dublin will complete the second year of its two-year contract with Interstate Gas Supply (IGS) on December 31,2005. Staff is working with American Municipal Power of Ohio (AMPO) and the other three municipal members of the Central Ohio Public Energy Council to negotiate a new contract for a Competitive Retail Natural Gas Services (CRNGS) provider. This Resolution, if passed, will authorize the City Manager to enter into an Agreement with a CRNGS provider. The draft Agreement is attached to the Resolution. Staff is pursuing this authorization without specific company names being finalized for two reasons: 1) negotiations are ongoing, and 2) the City Manager must be in a position to quickly execute an Agreement when market conditions are in the best interest of the City. The frameworks of the Agreements are basically the same and most reputable providers are willing to agree to these frameworks. However, the real potential benefit is in the bottom-line price. This price depends significantly on "futures" which fluctuate daily. Therefore, it is imperative that the City Manager be able to execute the Agreement at the time when market conditions appear to be most beneficial to the City. Providers are not willing to agree to a price then wait on other processes. City Councils in Bexley, Gahanna and Upper Arlington are also considering the same legislation for their respective managers/mayors to execute Agreements in this fashion. Unlike our previous two year Agreement, staff desires to have more time to monitor the pricing. The last time the City initiated a CRNGS contract timing was less favorable due to additional processes (i.e. vote and Plan of Operations & Governance approval). Giving the City more time may provide more opportunity with market prices. Staff considers the City's Opt-out natural gas aggregation program a success. This program provides an additional opportunity for choice that residents and smaller businesses might not otherwise have, thereby providing a "value added" service. As of March 21,2005,8,165 Dublin customers were in the program. Total enrollment for the COPEC member communities totaled 23,014. RECOMMENDATION: Staff recommends Council pass Resolution No. 38-05. This Resolution will become effective immediately upon passage thereby meeting the above objectives. Please address any questions to Dana McDaniel at 410-4619. Thank you. DLM/tb ED/Natural Gas Aggregation/Aggregation Opt Out 2005 Master Services Agreement Between City of Dublin And Interstate Gas Supply, Inc. This Master Services Agreement (the "Agreement") IS entered into as of ("Effective Date") between Interstate Gas Supply, Inc. ("IGS), an Ohio Corporation and the City of Dublin, Ohio ("Municipality"), an Ohio Municipal Corporation. Capitalized terms not defined in the Sections of this Agreement shall have the respective meanings ascribed to them in Exhibit A, hereto, "Definitions," WHEREAS, IGS is certified by the Public Utilities Commission of Ohio ("PUCO") as a Competitive Retail Natural Gas Service ("CRNGS") Provider to sell competitive retail Natural Gas and related service to consumers and governmental aggregation programs in the State of Ohio. WHEREAS, the Parties desire to enter into certain transactions associated with IGS' s provision of CRNGS gas supply and related services (collectively, "Retail Natural Gas Services") necessary to serve the Natural Gas accounts of Aggregation Members within the Natural Gas service territory of Columbia Gas of Ohio ("COH") enrolled in the Municipality's Governmental Aggregation program. WHEREAS, IGS provides, among other things, CRNGS and related services to municipal corporations, boards of township trustees, and boards of county commissioners (and the residents and inhabitants of those various political subdivisions and jurisdictions) acting as Governmental Aggregators for the provision of CRNGS under authority conferred by, inter alia, Section 4929.26, Revised Code. WHEREAS, The Municipality has been or will be certified by the Commission as a Governmental Aggregator pursuant to Chapter 4901 :1-27-01, et. seq. OAC . WHEREAS, the Municipality has established or desires to establish a Governmental Aggregation program whereby the Municipality, as Governmental Aggregator, will arrange for the provision of competitive retail Natural Gas and related service to certain eligible inhabitants that do not opt-out of or otherwise elect to participate in the Governmental Aggregation program. WHEREAS, by this Agreement, IGS desires to enter into a relationship with Municipality whereby IGS shall provide the Retail Natural Gas Services necessary to serve the Aggregation Members of the Municipality's Governmental Aggregation. WHEREAS, Municipality is or will be duly authorized to act for the Aggregation Group to purchase the Retail Natural Gas Services hereunder; and {H0376139.1 } 1 WHEREAS, the Parties have established herein the terms and conditions governing IGS's provision of the Retail Natural Gas Services for the Governmental Aggregation. NOW, THEREFORE, the Parties, intending to be bound hereby and in consideration of the mutual promises and covenants herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, agree as follows: Article One. Provision of Service 1.1 Obligations and Duties (a) Authority to Purchase: The Municipality, as Governmental Aggregator, is or will be authorized to arrange from IGS the Retail Natural Gas Services for and on behalf of the Aggregation Members of the Aggregation Group pursuant to the terms of this Agreement and the Operation Plan set forth in Section 1.7 below herein. IGS shall be the sole and exclusive provider of Retail Natural Gas Services for those Aggregation Members of the Aggregation Group. (b) Governmental Aggregator. Municipality shall obtain and maintain a certificate from the Commission to perform the functions of the Governmental Aggregator. IGS will provide the Municipality with all necessary data that is reasonably available to IGS to assist the Municipality with filings or any other information required by the Commission. (c) Opt-Out Provisions. IGS, with the reasonable cooperation of the Municipality, will be responsible for administering the initial and ongoing "opt-out" procedures to eligible customers. The Municipality and IGS shall cooperate in the development, review, approval, printing, posting and issuance of all opt-out correspondence to assure that the initial opt-out notices with the agreed upon pricing, terms, and procedures can be sent out by IGS to the eligible customers at the earliest time practicable, but no later than , 2003 unless the Parties mutually consent to a different date. (d) Administration and Assignment. IGS shall be responsible for the administration of the accounts of the Aggregation Members. IGS will build and maintain a database of all Aggregation Members. The database will include the name, address and local utility account number and may include other pertinent information as agreed upon by the Municipality and IGS. The database will be provided to the Municipality on a quarterly basis. The Municipality will have the right to access the information in the database for purposes of auditing. 1.2 Firm Natural Gas Supply. IGS will provide sufficient firm natural gas supply to the Delivery Point of the Local Utility, as defined in Section 1.3 hereof, to serve the requirements of the Aggregation Group. If IGS has arranged for firm transportation service for the delivery to the Delivery Point of the Local Utility, the Parties acknowledge that any failure or interruption after the Local Utility's Delivery Point, including any failure or interruption in distribution service to the Aggregation Group, is solely the responsibility of the Local Utility and IGS shall not be responsible for any such failure or interruption" including any losses or costs to the {H0376139.! 12 Municipality or the Aggregation Group as the result of such failure and/or interruption by the Local Utility. 1.3 Delivery Point. The "Delivery Point" for applicable Retail Natural Gas Services supplied by IGS to the Aggregation Group shall be the Local Utility's city gate(s) or any interface with the Local Utility for direct redelivery to the Aggregation Group by the Local Utility. 1.4 Responsibility for Delivery Costs. IGS will be responsible for obtaining or providing firm interstate pipeline transportation service up to the Delivery Point, and shall be responsible for all costs, liabilities, taxes, losses and charges of any kind to the Delivery Point. The Local Utility shall provide the natural gas distribution service from the Delivery Point to the meters of the Aggregation Members, Responsibility for all costs, liabilities, taxes, losses and charges of any kind after the Delivery Point is governed by the Local Utility's distribution tariff. 1.5 Municipality as Governmental Aggregator. The Municipality as Governmental Aggregator has no financial responsibility whatsoever, except that associated with securing and maintaining its status as a governmental aggregator. 1.6 Other Assistance. IGS will endeavor to assist Municipality with other matters as mutually agreed to by the Parties. 1.7 Plan of Operation and Governance. The Municipality shall develop a plan of Operation and Governance ("Operation Plan") for the provision of the Retail Natural Gas Services. The Municipality shall comply with all material terms of the Operation Plan, which Operation Plan shall comply with the Commission's requirements. Article Two. Customer & Usage Information 2.1 Customer Data and Load Forecast Information. The Municipality hereby authorizes IGS to obtain from the Local Utility all applicable Customer Data and Historical Load information regarding the consumption characteristics of the Aggregation Group (collectively, the "Load Forecast Information") when available and necessary. Municipality will assist IGS in obtaining any Load Forecast Information including, but not limited to, planned or unplanned reductions or increases in the natural gas consumption of the Aggregation Group. Upon request by IGS, Municipality shall provide to the Local Utility the authorizations and/or approvals necessary for IGS to obtain the Load Forecast Information. 2.2 Release of Customer Information. The Municipality will cooperate with IGS and provide all reasonably appropriate authorization and documentation to enable the Local Utility to release to IGS the applicable and necessary Load Forecast Information and Customer Data from the Local Utility, including information relating to customers movmg into or within the Municipality's corporate limits as they are as of the date of this agreement or as they may change from time to time during the term hereof. IGS shall use all such information solely in connection with, and limited to the purpose of, its service to the Governmental Aggregator. {H0376139.1 }3 2.3 Addition of "Opt-In" Customers During "Opt -Out Period". Within the Municipal geographic boundaries, Consumers served by CRNGS suppliers and other consumers not receiving an "Opt-Out Notice" may join or "opt-in" to the Aggregation Group during the "Opt- Out Period". 2.4 Addition of Aggregation Members. Consumers that become part of the Aggregation Group after completion of the "Opt-out Period" will be accepted by IGS at the Aggregation Contract Price at the sole discretion of IGS. Consumers that leave the Aggregation Group at any time and desire to re-join the Aggregation Group may, during the term of this Agreement, be accepted by IGS and served at the Aggregation Contract Price at IGS' s sole and absolute discretion. IGS may develop an alternative rate for eligible consumers that have exited and desire to reenter the Aggregation Group. 2.5 Except as otherwise provided in this Agreement, prior to the termination of this agreement IGS shall not intentionally target by direct mail or direct telemarketing any residential consumer within the Municipality's geographic boundaries without the prior consent of the Municipality. Aggregation Members that move from one location to another within the Municipality's boundary, and who notify IGS of such move, will retain their participant status at their then- existing price. If the consumer moves out of the Municipality's corporate limits, all obligations, except for the consumer's obligation to pay all amounts owed, shall cease as between that consumer, IGS, and the Municipality, effective with the consumer's termination of service with the Local Utility relative to its participation in the Governmental Aggregation. Consumers that opt-out of or otherwise leave the Aggregation Group will default to the appropriate Local Utility's Standard Service Offer or other appropriate service. Article Three. Operations 3.1 Scheduling. IGS, either directly or through its designee shall be perform any and all Scheduling necessary to provide CRNGS to the Aggregation Group. IGS shall be responsible for all scheduling for delivery to the Aggregation Members. 3.2 Metering. Metering shall continue to be done by the Local Utility or other entity approved by the Commission. 3.3 Start Date. The "Start Date" for IGS provision of CRNGS to each Aggregation Member shall be the first appropriate meter-read date. 3.4 End Date. Upon the conclusion or termination of this Agreement, the end date for service to each Aggregation Member shall be the next immediate metering date after the effective date of such conclusion or termination subject to the Local Utility's procedures. Upon the conclusion of the opt-out term between each Aggregation Member and IGS, the end date for service for the Aggregation Member shall be pursuant to the opt-out procedures. {H0376139.1 }4 Article Four. Prices and Fees 4.1 Price. IGS shall charge the rates for CRNGS provided to Aggregation Members based on the pricing terms and conditions as set forth in Exhibit B hereto. 4.2 Switching Fee Reimbursement. The Municipality shall not be responsible for the payment of any consumer-switching fee or other fees imposed by the Local Utility as a result of the transfer of consumers to IGS Retail Natural Gas Service. 4.3 Early Termination Fee. Customers that join the Aggregation Group and then leave during the term of this service period may be charged a Twenty-Five Dollar and No Cents (US$25.00) Early Termination Fee by IGS at IGS's sole and absolute discretion. Article Five. Billing 5.1 Billing. The Local Utility will provide consolidated billing for the CRNGS provided hereunder. Notwithstanding the foregoing, if offered by the Local Utility in the future, IGS may at its sole option provide consolidated billing to Aggregation Members. Under no circumstances will a dual billing option be offered absent the Municipality's consent; but such option may be offered if the Local Utility no longer offers consolidated billing. Article Six. Contingencies and Force Majeure 6.1 Contingencies. (a) Regulatory Events. The following events constitute a "Regulatory Event" hereunder: (i) Illegality. Due to the adoption of, or change in, any applicable law, or in the interpretation of any applicable law by any judicial or government authority with competent jurisdiction, it becomes unlawful for a party to perform any obligation under this Agreement. (ii) Adverse Government Action. (A) Any regulatory agency or court having jurisdiction over the Agreement requires a material change to the terms of this Agreement that materially and adversely affects a party's ability to perform hereunder or other provide the Retail Natural Gas Services, or (B) Regulations or court action adversely and materially impacts a party's ability to perform hereunder or otherwise provide the Retail Natural Gas Services. (iii) New Taxes. Any ad valorem, property, occupation, severance, generation, first use, conservation, Btu or energy, transportation, utility, gross receipts, privilege, sales, use, consumption, excise, lease, transaction or other governmental charge, license, fee or assessment (other than such charges based on net income or net {H0376l39.1 )5 worth), or increase in such charges, or application of such charges to a new or different class of parties, enacted and effective after the Effective Date. (b) Notice, Negotiation, and Early Termination. Upon the occurrence of a Regulatory Event or Termination Event, the adversely affected party shall within ten (10) days give notice to the other party that such event has occurred. In the case of a Regulatory Event within thirty (30) days, or such other period as the Parties may agree to in writing, each party will enter into good faith negotiations with the other party to amend or replace this Agreement and the Parties shall attempt to amend 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. In the case of a Termination Event, the party responsible for such Termination Event shall upon receipt of notice that such event has occurred immediately begin to work in good faith toward prosecuting an appr()priatec~~~~rresolution t~.re1l1edY the situation as soon as possible so that the adversely affectedPa1'tyi~~rs~o~r~ as ne~l~.~g~ssible to the economic position it would have been in but for the occuJjfencep~~he TerminatipJ1lvent. In the case of a Regulatory Event, if the Parties are unable, within thirty (30) days of initiating negotiations (or such other period as the Parties may agree to in writing) to agree upon an amendment to the Agreement, the adversely affected party shall have the right, upon subsequent additional thirty (30) days prior written notice, to terminate and close out its obligations under the Agreement pursuant to the terms of Section 9.1 hereof. In the case ofa 'Fermination Event, ifthe party responsible for the Termination Event is unable to successfully effectuate an acceptable cure within thirty (30) days after receiving notice that a Termination Event has occurred (or such other period as the Parties may agree to in writing), the adversely affected party shall have the right, to terminate and close out its obligations under the Agreement pursuant to the terms of Section 9.1 hereof 6.2 Force Majeure. (a) Neither party shall be considered to be in default in the performance of its obligations under this Agreement, if its failure to perform results directly from a Force Majeure event. In the event that either party is unable, wholly or in part, to meet its obligations under this Agreement due to conditions of a Force Majeure event, the obligations of each party, so far as they are affected by such Force Majeure, shall be suspended during the period of Force Majeure. In the event any party hereto is rendered unable, wholly or in part, by Force Majeure to carry out its obligations hereunder, it is agreed that upon such party's (the "Claiming Party") giving notice and full particulars of such Force Majeure within three (3) business days after becoming aware of the cause relied upon, such notice to be confirmed in writing to the other Party, then the obligations of the Claiming Party shall, other than the obligation to make payments due hereunder and to the extent they are affected by such Force Majeure, be suspended during the continuance of said inability but for no longer period. The party receiving such notice of Force Majeure shall have until the end of the second (2nd) business day following such receipt to notify the Claiming Party that it objects to or disputes the existence of an event of Force Majeure. (b) The Claiming Party affected by an event of Force Majeure shall use due diligence to fulfill its obligations hereunder and to remove any disability caused by such event at the {H0376139.1 }6 earliest practicable time. Nothing contained in this section shall be construed as requiring a party to settle any strike or labor dispute in which it may be involved. Article Seven. Term 7.1 Initial and Renewal Terms. The term of this Agreement shall commence on the Effective Date hereof and terminate on , 2005. This initial term will be extended for consecutive one (1) year terms unless written notice to terminate is given by either party, six (6) months prior notice in the case of the initial term, at least two (2) months prior to the end of any renewal term. Article Eight. Representations and Warranties 8.1 Mutual Representations and Warranties. Each party represents and warrants to the other party, as of the Effective Date of this Agreement and of each delivery of Natural Gas hereunder, that: (a) It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, is in good standing; (b) It has the corporate, governmental and/or other legal capacity, authority and power to execute and deliver this Agreement and any other document relating hereto to which it is a party, and to perform its obligations under this Agreement and any other document relating hereto to which it is a party, and has taken all necessary action to authorize such execution, delivery and performance; (c) Such execution, delivery and performance do 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; (d) All governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to this Agreement or any other document relating hereto to which it is a party have been obtained or submitted and are in full force and effect, and it has complied with all conditions and terms of any such authorizations, approvals, consents, notices and filings; (e) Its obligations under this Agreement and any other document relating hereto to which it is a party are legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors' rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law); (f) No Bankruptcy Event has occurred and is continuing, and that a Bankruptcy Event would neither occur as a result of its entering into or performing its obligations under this {H0376139.1 )7 Agreement or any other document relating hereto to which it is a party nor is presently or otherwise threatened; (g) There is not pending or, to its knowledge, threatened against it or any of its Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any other document relating hereto to which it is a party or its ability to perform its obligations under this Agreement or such document; (h) It has entered into this Agreement with a full understanding of the material terms and risks of transaction contemplated hereunder, and it is capable of assuming those risks; (i) The other party is not acting as a fiduciary or in an advisory capacity to the other party; and (j) All applicable information that is furnished in writing by or on behalf of it to the other party is, as of the date of the information, true, accurate and complete in every material respect. 8.2 Additional Representations of Municipality. Relative to this Agreement, Municipality further represents to IGS, as of the Effective Date, that: (a) The Municipality has or shall have a valid certificate as a Governmental Aggregator and will maintain such certificate at all times during the term hereof; and, (b) All acts necessary to the valid execution, delivery and performance of this Agreement including, without limitation, competitive bidding, public notice, election, referendum, prior appropriation or other required procedures has or will be taken and performed as required under the Act, Regulations and the Municipality's ordinances, bylaws, policies or other regulations. 8.3 Additional Representations of IGS. IGS further represents that it will transfer to the Aggregation Group good title, as applicable at the Delivery Point or otherwise of all Retail Natural Gas Services delivered hereunder, that it has the right to sell such Retail Natural Gas Services, that such Retail Natural Gas Services shall be free from all taxes, liens, encumbrances and claims, and that such Retail Natural Gas Services complies with the technical specifications and will be in a form and quality specified by the Local Utility's distribution system. 8.4 Limitation of Warranties. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED BY THE PARTIES. Article Nine. Default and Early Termination 9.1 If either party fails to comply with any material term or condition of this Agreement and such failure is not excused as Force Majeure, such party shall be in default under this Agreement. If a party is in default under this Agreement, the party claiming that the other party is in default shall give notice to the defaulting party in writing detailing the alleged default and requesting specific relief that is in accord with the terms and conditions of this Agreement. The party {H0376139.1 )8 receiving such notice of default shall respond in writing within five (5) business days affirming or denying the alleged default and detailing how any such default under this Agreement will be cured. If the party claiming the default is not reasonably satisfied that such default has been cured within thirty (30) days following the date that the notice of default has been received by the defaulting party, the claiming party shall be free to seek legal redress and take such other actions, including termination of this Agreement, as it sees fit. 9.2 Enforcement of Remedies. The party claiming default under Section 9.1 above may enforce any of its remedies under this Agreement successively or concurrently at its option. All of the remedies and other provisions of this Article shall be without prejudice and in addition to any right of setoff, recoupment, combination of accounts, lien or other right to which any party or any of its Affiliates is at any time otherwise entitled (whether by operation of law or in equity, under contract or otherwise). Article Ten. Liability 10.1 Limitation of Liability. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER PARTY, NOR THEIR RESPECTIVE REPRESENTATIVES, SUCCESSORS OR ASSIGNS, SHALL BE LIABLE TO THE OTHER PARTY OR ITS REPRESENTATIVES, SUCCESSOR OR ASSIGNS, FOR CLAIMS, SUITS, ACTIONS OR CAUSES OF ACTION, UNDER ANY THEORY OF RECOVERY, FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, MULTIPLE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMIT A nON LOSS OF PROFITS OR REVENUE OR THE LOSS OF USE OF EITHER, COSTS OF REPLACEMENT RETAIL NATURAL GAS SERVICES OR OF CAPITAL, OR CLAIMS OF CUSTOMERS OF THE OTHER PARTY RELATING TO LOSS OF RETAIL NATURAL GAS SERVICES SUPPLY, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 10.1 SHALL APPLY REGARDLESS OF FAULT AND SHALL SURVIVE TERMINATION, CANCELLATION, SUSPENSION, COMPLETION OR EXPIRATION OF THIS AGREEMENT. Article Eleven. Notices 11.1 Unless otherwise specified, all notices, requests, statements or payments under this Agreement shall be made to the following: Interstate Gas Supply, Inc. City of Dublin All Notices: All Notices: Street: 5020 Bradenton A venue Street: 6351 Shier-Rings Road City and State: Columbus, Ohio City and State: Dublin, Ohio Zip: 43017 Zip: 43016 Attn: Vice President, Marketing Attn: Dana McDaniel, Service Director {H0376139.1 }9 11.2 Notices shall, unless otherwise specified herein, be in writing and may be delivered by hand delivery, United States mail, or overnight courier service. Notice by hand delivery shall be effective at the close of business on the day actually received, if received during business hours on a business day, and otherwise shall be effective at the close of business on the next business day after receipt. Notice by overnight United States mail or courier shall be effective two (2) business day upon delivery, Notice by regular US mail shall be effective five (5) business days following delivery. A party may change its addresses or the contact person by providing notice of same in accordance herewith. Article Twelve. Confidentiality 12.1 Obligation of Confidentiality. The Parties agree for themselves and their respective Representatives to keep confidential all Confidential Information provided hereunder and to use the Confidential Information solely for purposes related to this Agreement. Except as provided herein, Confidential Information shall not be disclosed by the receiving party ("Receiving Party") to any third party without the prior written consent of the disclosing party ("Disclosing Party"); and such third party shall be requested to treat the Confidential Information in accordance with this Agreement. 12.2 Disclosure. In the event either party is required to disclose such Confidential Information by a law, court, agency or other governing body having, or purporting to have, jurisdiction over the party, such party shall make all reasonable efforts to notify the other party prior to any disclosure, if such notice is, in the determination of the Receiving Party's counsel, as permitted by law, so as to allow the other party an opportunity to resist such disclosure and/or to seek appropriate protection from further disclosure. If the Disclosing Party, in the determination of its counsel, is compelled to disclose Confidential Information, the Disclosing Party may disclose that portion of the Confidential Information which the Disclosing Party's counsel advises that the Disclosing Party is compelled to disclose. 12.3 Proprietary Rights, Survival. Each party acknowledges the proprietary rights of the other party in and to the Confidential Information. The obligations under this Article Twelve shall survive the conclusion or termination of this Agreement for two (2) years. Article Thirteen. General Terms 13.1 Entire Agreement, Amendments and Counterparts. The terms of this Agreement (including any exhibits, schedules and attachments hereto) constitute the entire agreement between the Parties with respect to the matters set forth in this Agreement and may be changed only by written agreement executed after the date hereof by the Parties. All exhibits, schedules and addendums attached hereto are incorporated herein by reference. This Agreement and any modification hereof may be executed and delivered in counterparts, including by a facsimile transmission thereof, each of which shall be deemed an original. {H0376139.1 ) 10 13.2 No Waiver. No failure on the part of any party to exercise, and no delay in exercising, any right under this Agreement shall operate as a waiver thereof, nor shall any partial exercise of any such right preclude the exercise of any other right. No waiver shall be valid unless set forth in a mutually signed writing, and any such waiver shall not operate as a waiver of the same or any other right on another occasion, unless otherwise agreed to mutually in writing. 13.3 Headings. The headings used for the articles and sections herein are for convenience only and shall not affect the meaning or interpretation of the provisions of this Agreement. 13.4 No Partnership. Nothing in this Agreement shall constitute or be construed as constituting or tending to create an agency, partnership, master-servant or employer-employee relationship between the Parties. 13.5 Governing Law. This Agreement shall be governed by, construed and enforced in accordance with the law of the State of Ohio without regard to principles of conflict of laws. The Parties agree that any actions to be brought between them shall be brought only in Franklin County, Ohio, or where required by Ohio law, directly before the Commission. The Parties consent to and shall not challenge the jurisdiction over this Agreement of Franklin County, Ohio. 13.6 Jury Trial Waiver. Both Parties waive any right to trial by jury in any action arising hereunder. 13.7 No Third Party Beneficiaries. This Agreement confers no rights or remedies whatsoever upon any person or entity other than the Parties and shall not create, or be interpreted as creating, any standard of care, duty or liability to any person or entity not a party hereto. Neither party shall be liable to a third party not a party to this Agreement for any unauthorized act or omission on the part of the other party, nor for any unauthorized obligation or debt incurred by the other party 13.8 Binding Effect. This Agreement shall be binding on and inure to the benefit of the Parties and their respective successors and permitted assigns, except as expressly provided in this Agreement. 13.9 Assignment. This Agreement shall not be assigned by either party without the written consent of the other, which consent shall not be unreasonably withheld. 13.10 Authorization. Each party to this Agreement represents and warrants that it has full and complete authority to enter into and perform this Agreement. Each person who executes this Agreement on behalf of either party represents and warrants that he or she has full and complete authority to do so and that such party will be bound by the Agreement. 13.11 Prefatory Statements. The Parties hereto agree and acknowledge that the prefatory statements in this Agreement are intended to be and shall be a part of the provisions of this Agreement. {H0376139.1 } 11 13.12 Severability. If any provision of this Agreement is determined to be invalid, void, or unenforceable by any court having jurisdiction, such determination shall not invalidate, void or make unenforceable any other provision, agreement or covenant of this Agreement. 13.13 Agent. The Municipality may designate an agent or Representative to act on its behalf, which agent or Representative Municipality may change from time-to-time upon notice to IGS. 13.14 Taxes. IGS hereby agrees to and shall cause its agents and subcontractors to, withhold all municipal income taxes due or payable under the provisions of Chapter 181 of the Codified Ordinances of Dublin, Ohio, for wages, salaries and commissions paid to its employees and further agrees that any of its subcontractors shall be required to agree to withhold any such municipal income taxes due under such chapter for services performed under this Agreement. Execution of Agreement The Parties acknowledge their agreement to the terms herein by their signatures below. MUNICIPALITY: City of Dublin, Ohio an, Ohio Municipal Corporation. By: Name: Title: APPROVED AS TO FORM: City of Dublin Law Director IGS: Interstate Gas Supply, Inc., an Ohio Corporation. By: Name: Title: REST OF PAGE LEFT INTENTIONALLY BLANK {H0376139.1 d2 Exhibit A Definitions "Act" means Ohio Revised Code, Chapter 4929 et seq., as amended. "Affiliate" means, in relation to any person, any entity controlled, directly or indirectly, by such person, any entity that controls, directly or indirectly, such person, or any entity directly or indirectly under common control with such person. For this purpose, "control" of any entity or person means ownership of a majority of the voting power of the entity or person. With respect to Municipality, the term Affiliate shall include but not be limited to any political subdivision of Municipality, or an instrumentality agency or department of Municipality. "Aggregation Group" means the collection of Aggregation Members. "Aggregation Member(s)" means those retail residential and commercial customers whose meters are read on a cycle basis by the Local Utility, are within the corporate limits of the Municipality, and who are eligible to and do become members of the Municipality's Governmental Aggregation program. "Authorizing Resolutions & Ordinances" means the resolutions and ordinances authorizing the Municipality to act as a Governmental Aggregator. "Bankruptcy Event" means either party: (i) is dissolved (other than pursuant to a consolidation, amalgamation or merger), becomes insolvent, is unable to pay its debts or admits in writing its inability generally to pay its debts as they become due, or makes a general assignment, arrangement or composition with or for the benefit of its creditors; (ii) institutes or has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation; (iii) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or substantially all its assets, or has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets; (iv) in the case of the Municipality, there is appointed or designated any entity such as a board, commISSIOn, authority or agency to monitor, reVIew, oversee, recommend or declare a financial emergency or similar state of financial distress; {H0376139.1 ) 1 (v) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in clauses (i) to (iv) inclusive; or (vi) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts. "Btu" means British thermal unit. "Commission" means the Public Utilities Commission of Ohio. "Confidential Information" means any and all data and information of whatever kind or nature (whether written, electronic or oral) which is disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") regarding itself, its business, and/or the business of its Affiliates. Information that is disclosed by one party to the other which the disclosing party believes is confidential and is clearly designated as confidential shall be deemed Protected Information, only if such claim of confidentiality is conspicuously disclosed in writing or other tangible form that is marked "confidential" at the time of transmittal or if disclosed verbally is described as confidential or proprietary at the time of the conversation and the Disclosing Party also supplements the verbal transmittal with a transmittal in writing or other tangible form that is conspicuously marked "confidential" or "proprietary" within five (5) days of the verbal disclosure. Each party shall have the right to correct any inadvertent failure to designate information as Confidential Information by providing the other party with timely written notification of the error, and the designated information shall be treated as Confidential Information from the time a party receives the written notification. Confidential Information does not include information: (a) in the public domain at the time of disclosure; (b) which after disclosure passes into the public domain, except by a wrongful act of the Receiving Party; (c) disclosed to the Receiving Party by a third party not under an obligation of confidentiality; (d) already in the Receiving Party's possession prior to disclosure by the Disclosing Party; or (e) subject to disclosure pursuant to Revised Code Section 149.43 or any other applicable law. "Customer Data" includes, without limitation: the customer's name, billing address, meter address and usage information, account number, rate classification, and similar information that is applicable and necessary for IGS to provide its Retail Natural Gas Services hereunder. "Force Majeure" for purposes of this Agreement means an uncontrollable force that is not within the control of the party relying thereon and could not have been prevented or avoided by such party through the exercise of due diligence. Subject to the foregoing, Force Majeure shall include flood, earthquake, storm, drought, fire, pestilence, lightning, hurricanes, washouts, landslides and other natural catastrophes and acts of God; strikes, lockouts, labor or material shortage, or other industrial disturbances; acts of the public enemies, epidemics, riots, civil disturbance or disobedience, sabotage, terrorist acts, wars or blockades; governmental actions such as necessity to comply with any court order, law, statute, ordinance or regulation promulgated by a governmental authority; or any other unplanned or non-scheduled occurrence, condition, situation or threat not covered above, which renders either party unable to perform its obligations hereunder, provided such event is beyond the reasonable control through the exercise (H0376139.1 )2 of due diligence of the party claiming such inability. A change in economic Natural Gas or other market conditions or economic hardship unrelated to an uncontrollable force shall not constitute a Force Majeure event. Failures or interruptions, including government ordered interruptions, on the transmission or distribution systems relied upon for supplying Retail Natural Gas Services under this Agreement will constitute Force Majeure, provided that IGS has arranged for firm transportation service as noted in this Agreement. "Governmental Aggregator" means an eligible governmental entity certified by the Commission to act as a governmental aggregator for the provision of competitive retail Natural Gas service under authority conferred by, inter alia, Section 4929.26, Revised Code. Governmental Aggregation" means a program certified by the Commission for the provision of competitive retail Natural Gas service under authority conferred by, inter alia, Section 4929.26, Revised Code. "Historical Load" means the most recent history of natural gas consumption for the Aggregation Group and/or Aggregation Member(s). "Local Utility" means the natural gas distribution utility providing services to the Aggregation Group of the Governmental Aggregation program. "Mer' means one thousand (1,000) cubic feet of natural gas. "NYMEX Strike Price" means the historical IGS twelve (12) month consumption average for Columbia Gas of Ohio residential gas customers, weighted against the NYMEX natural gas twelve (12) month price of gas per Mmbtu trading during the months of December through November each year, on any day designated by Municipality's agent prior to October 15, 2003 for year one and prior to October 15, 2004 for year two. "Opt-Out Period" means the period of twenty-one (21) calendar days from the post-mark date of the Opt-out Notice, plus the seven (7) calendar day rescission period. "Parties" means the entities that are signatories to the Agreement. "Regulations" means Public Utilities Commission of Ohio and Federal Energy Regulatory Commission rules, regulations and precedent, to the extent of their respective jurisdictions. "Representative" means, as to a party, any Affiliate, or any shareholder, officer, director, employee, agent, attorney, or advisor of the party or its Affiliate. "Retail Adder" means [$1.99] per Mcf. "Termination Event" means the act of either party failing to perform (or meet the requirements of) any of the material covenants or obligations imposed upon it under the Agreement (except where such failure shall be excused under any other provision of the Agreement), the filing of bankruptcy or insolvency proceedings, or the assignment of rights and responsibilities under this {H0376139.1 }3 Agreement without obtaining the other party's prior written consent. Termination Events shall also include, but not necessarily be limited to; the submission of a party (whether voluntary or involuntary) to bankruptcy or insolvency proceedings under the laws of any jurisdiction, the practice of any fraud or willful misrepresentation of.any material fact upon the other party, or the failure of a party to provide and de!iverthe s~rvices requ.iredby the Agreement in an amount and manner that meets or exceeds all generally accepted minimal local industry standards. REST OF PAGE LEFT INTENTIONALLY BLANK {H0376139.1 }4 Exhibit B Prices 1) Year one ( 2003 through 2004) and Year two ( 2004 through 2005), the price for all natural gas delivered by IGS to the local utility's city gate and billed by the Local Utility in any given billing cycle shall be equal to the sum of the following: a) the Retail Adder plus b) NYMEX strike price. 2) In the event that Municipality's agent does not designate a day as defined in the NYMEX Strike Price, then the price of all gas delivered under this agreement will be determined each month by the closing monthly NYMEX price of gas plus $2.12 per Mcf. REST OF PAGE LEFT INTENTIONALLY BLANK {H0376139.1 IS Office of the City Mana~er 5200 Emerald Parkway · Dub in, OH 43017 Phone: 614-410-4400 · Fax: 614-410-4490 CITY OF DUBLIN Memo To: Members of the Dublin City Council From: Jane S. Brautigam, City Manager \ .-.(t,~ Q~ Date: May 31, 2005 Initiated By: Dana L. McDaniel, Director of Economic Development Re: Resolution #39-05 BACKGROUND Attached for your consideration please find Resolution 39-05 authorizing the City Manager to enter into a Joint Use Agreement with the Ohio Board of Regents (Exhibit "A"). Council may recall that the City of Dublin submitted the "Central Ohio Technology Corridor" as a project for funding by the State of Ohio Capital Fund. With the help of our State Legislators and County Commissioners, the City of Dublin was successful in having its project identified for funding in the amount of $500,000. It is now time to set up the mechanisms through which the City can receive this funding. It is necessary for the State of Ohio Capital Fund Grant to be routed through the Ohio Board of Regents, even though it was the City's application and project. The Ohio State University/TFN is the indirect recipient ofthese funds, as well. Hence, the funding must be routed through the Ohio Board of Regents. The Joint Use Agreement, when executed by the City Manager and the Ohio Board of Regents, will serve as the mechanism for the City to receive the $500,000. The $500,000 will then be used by the City of Dublin for the purpose of establishing connectivity between TFN and the City's optical fibers, providing equipment for the purpose of lighting and operating the fibers, and partially reimbursing the City for use of its optical fibers. The City also anticipates using an additional $70,000 from a State of Ohio Technology Grant (intended for the purpose of connecting Battelle to the system) and the $39,000 technology grant from the City of Dublin also intended for the Battelle connectivity to fund the project. Dublin City Council understands the need for access to bandwidth. The City currently owns optical fibers for governmental purposes. The City operates its own institutional network. The City expanded its optical fibers beyond Dublin and throughout a large portion of Central Ohio in order to be connected to multiple points of presence or "POPs". Also, the City came to realize after a couple successful economic development projects that unused bandwidth/fibers could be used for point-to-point connectivity for economic development purposes. The City submitted its project to the State of Ohio with the intent to connect its optical fiber system to the Third Frontier Network (TFN)/OARnet/Ohio Super Computer Center. By doing so, the City can work collaboratively with The Ohio State University to establish connectivity, via its optical fiber network, to schools, research universities and institutes, colleges, government, and business. This connectivity will foster new collaborations between and among these entities, while at the same time promoting critical educational, scientific and industrial capacities and research, thereby advancing the technology-based economy that will be instrumental in the future economic development of the City of Dublin and Central Ohio. As an example, researchers rely on significant bandwidth to move and access data and to collaborate with other researchers. Access to the Third Frontier Network will potentially provide the following: . Collaborative research statewide, nationally and internationally. . High performance network for the Governor's "Third Frontier" project. . Remote shared resources and instrumentation. . Enhanced distance learning applications. . Enhanced network and computer science research. . Joint research and economic development for industry. . Biomedical applications such as remote robotic surgery. . Ohio Biomedical Computational Grid creation. (Source: OSC/OARNET News, December 2002) The Joint Use Agreement, if approved by the City of Dublin and later by the Ohio Board of Regents, will help to establish a bandwidth infrastructure that will enable these possibilities. Should the Ohio Board of Regents approve this Joint Use Agreement, additional steps to secure the funding will likely be required through the State Controlling Board process. RECOMMENDATION Staff recommends Council approve Resolution 39-05. By approving it as soon as possible, the City can demonstrate its willingness to move forward on the project. The Joint Use Agreement is comprehensive and covers the responsibilities of the parties. It is feasible that very minor changes to the Joint Use Agreement may be needed even after approval by City Council. Obviously, any changes of a substantive nature will be brought back to Council for additional review and approval. However, staff does not anticipate any at this time. Should you have specific questions about the Joint Use Agreement, you can address those to Greg Dunn at 0: 462-2339. Greg also will be available at the Council meeting to answer questions.. You may also address questions regarding this Resolution to Dana McDaniel at 410-4619. Thank you.