33-03 Resolution
RECORD OF RESOLUTIONS
Doyton legol Blonk Co., Form No. 30045
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j Resolution No. ..... 33-03 Passed ..
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I A RESOLUTION AUTHORIZING THE CITY MANAGER TO
ENTER AN AGREEMENT WITH A COMPETITIVE RETAIL
NATURAL GAS SERVICES (CRNGS) PROVIDER
WHEREAS, Ohio Revised Code S 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 lower cost 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 will adopt a Plan of Operation and Governance for the
implementation of the City's Municipal Natural Gas Aggregation Program in accordance
with Ohio Revised Code S 4929.26 (C); and
WHEREAS, the City entered into an agreement with AMPO, Inc. to provide management
services for the natural gas aggregation program; and
WHEREAS, AMPO, Inc. has recommended that the City negotiate the framework of a
contract with a Competitive Retail Natural Gas Service (CRNGS) supplier, yet to be
determined, for the provision of competitive retail natural gas aggregation 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;
NOW, THEREFORE, BE IT RESOLVED by the Council ofthe City of Dublin, State of
Ohio, 7 of the elected members concurring that:
Section 1.
The City Manager is hereby authorized to enter into an Agreement with either the
appropriate CRNGS provider, for the provision of competitive retail natural gas
aggregation services to achieve the most advantageous terms and conditions. The
agreement (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 if possible.
(b) The City shall have no financial responsibility whatsoever for the non-payment by
any customer of the aggregation program;
(c) T he terms of the 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 0 r h er designee shall b e informed 0 f 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.
(g) The CRNGS Provider's rates shall include a per CCF (per one hundred cubic foot)
administrative fee.
RECORD OF RESOLUTIONS
Day tan legal Blank Ca., Form No. 30045
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Ii . M-03 Passed .. Page 2
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II Section 2.
The Agreement shall not become effective until approved as to form by the City Attorney
and signed by the City Manager.
II Section 3.
All advertisements, brochures, public relation 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.
aYf~ ,2003
Mayor - Presiding Officer
ATTEST:
~ C!-~
Clerk of Council
I hereby certify that copies of this
OrdinancelResolution were posted in the
City of Dublin in accordance with Section
731.25 of the Ohio Revised Code.
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Master Services Agreement
Between
City of Dublin
And
This Master Services Agreement (the "Agreement") IS entered into as of
("Effective Date") between , Inc. ("CRNGS) and
the City of Dublin, Ohio ("Municipality"). Capitalized terms not defined in the Sections of this
Agreement shall have the respective meanings ascribed to them in Exhibit A, hereto,
"Definitions."
WHEREAS, CRNGS 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
CRNGS'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, CRNGS provides CRNGS and related services to inhabitants of municipal
corporations, inhabitants of boards of township trustees, and inhabitants of boards of county
commissioners acting as Governmental Aggregators for the provision of competitive retail
Natural Gas service-under authority conferred by, inter alia, Se_ction 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 and otherwise elect to participate in the Governmental Aggregation
program.
WHEREAS, by this Agreement, CRNGS desires to enter into a relationship with
Municipality whereby CRNGS 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
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WHEREAS, the Parties have established herein the terms and conditions governing
'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 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.
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 ofthe Governmental Aggregator. CRNGS will provide
the Municipality with all necessary data that is reasonably available to CRNGS to assist the
Municipality with filings or any other information required by the Commission.
(c) Opt-Out Provisions. CRNGS, 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 shall cooperate in the developing,
review, approval, printing, posting and issuance of all opt-out 90rrespondence to assure that the
initial opt-out notices with the agreed upon pricing, terms, and procedures can be sent out by
CRNGS 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. CRNGS shall be responsible for the administration
of the accounts of the Aggregation Members. CRNGS 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
CRNGS. 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. CRNGS 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 CRNGS 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 CRNGS
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shall not be responsible for any such failure or interruption, including any losses or costs to the
Municipality or the Aggregation Group as the result of such interruption by the Local Utility.
1.3 Delivery Point. The "Delivery Point" for applicable Retail Natural Gas Services supplied
by CRNGS 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. CRNGS 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.
1.6 Other Assistance. CRNGS will endeavor to assist Municipality with other matters as
mutually agreed to by the parties.
Article Two. Customer & Usage Information
2.1 Customer Data and Load Forecast Information. Municipality hereby authorizes CRNGS
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 CRNGS 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 CRNGS, Municipality shall provide to the Local Utility the authorizations and/or approvals
necessary for CRNGS to obtain the Load Forecast Information.
2.2 Release of Customer Information. The Municipality will cooperate with CRNGS and
provide appropriate authorization and documentation to enable the Local Utility to
release to CRNGS the applicable and necessary Load Forecast Information and Customer
data from the Local Utility, including for customers moving into or within the
Municipality's boundary. CRNGS shall use all such information solely in connection
with its service to the Governmental Aggregation.
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 CRNGS at the
Aggregation Contract Price at the sole discretion of CRNGS. Consumers that leave the
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Aggregation Group at any time and desire to re-join the Aggregation Group may, during
the term of this Agreement, be accepted by CRNGS and served at the aggregation price
at CRNGS's sole and absolute discretion. CRNGS 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 CRNGS 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 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, CRNGS, 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. CRNGS, either directly or through its designee shall be perform all
scheduling. CRNGS 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 service 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 CRNGS, the end date
for service for the Aggregation Member shall be pursuant to the opt-out procedures.
Article Four. Prices and Fees
4.1 Price. CRNGS shall charge the rates for service provided to Aggregation Members based
on the pricing terms and conditions as set forth in Exhibit B hereto.
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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 the Customers to CRNGS 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 by CRNGS a $25 Early
Termination Fee at CRNGS's sole and absolute discretion.
Article Five. Billing
5.1 Billing. The Local Utility will provide consolidated billing for the service~ provided
hereunder. Notwithstanding the foregoing, if offered by the Local Utility in the future, CRNGS
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
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. 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. In the case of a Regulatory Event, the Parties shall
attempt to amend this Agreement so that the adversely affected party is restored as nearly as
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possible to the economic position it would have been in but for the occurrence of the Regulatory
Event. In either case, 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.
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
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 ofthis Agreement shall commence on the Effective
Date hereof and terminate on This initial term will be extended for
consecutive one (1) year terms unless written notice to terminate is given by either party, 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;
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(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
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.
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8.2 Additional Representations of Municipality. Relative to this Agreement, Municipality
further represents to CRNGS, as of the Effective Date and of each delivery of natural gas
hereunder, 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;
(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 p~rformed
as required under the Act, Regulations and the Municipality's ordinances, bylaws, policies or
other regulations;
(c) No Authorizing Resolutions & Ordinances of the governing body or other authorized
body of the Municipality limit or restrict in any regard the type, number, duration, quantity,
price, or total value oftransactions that the Municipality may enter into with CRNGS;
8.3 Additional Representations of CRNGS. CRNGS 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
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
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or any of its Affiliates is at any time otherwise entitled (whether by operation oflaw 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 REPRESENT A TIVES, 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, ~PECIAL,
PUNITIVE, MULTIPLE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT
LIMIT A TION 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 APPL Y
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:
City of Dublin
All Notices: All Notices:
Street: Street:
City and State: Columbus, Ohio City and State:
Zip: 43017 Zip:
Attn: Vice President, Marketing Attn:
11.2 Notices shall, unless otherwise specified herein, be in writing and may be delivered by
hand delivery, United States mail, 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.
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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 notify the other party prior to any disclosure, if such notice is, in the
determination of the Receiving Party's counsel, 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 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 ofthis 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.
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.
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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.
13.1 0 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 Prefatorv 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.
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 ofthis 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
CRNGS.
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Execution of Agreement
The Parties acknowledge their agreement to the terms herein by their signatures below.
City of Dublin
By:
Name:
Title:
By:
Name:
Title:
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Exhibit A
Definitions
"Act" means Ohio Revised Code, Chapter 4929, 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. W,th 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;
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(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 proprietary 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 ofthe 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 CRNGS 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
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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 CRNGS 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 ofthe Governmental Aggregation program.
"Mcf' means one thousand (1,000) cubic feet of natural gas.
"NYMEX Strike Price" means the consumption weighted average of the NYMEX natural gas
twelve (12) month futures prices on the day designated by Municipality, or Municipality's agent.
"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.
"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 per Mcf which is fixed for the term of this agreement.
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Exhibit B
Prices
I) Each Customer's price for natural gas delivered by CRNGS 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 without adjustment for Btu.
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