34-03 Resolution
RECORD OF RESOLUTIONS
Dayton legal Blank Co., Form No. 30045
'j
:1 34-03
il R l . N Passed ..
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A RESOLUTION AUTHORIZING THE CITY MANAGER TO
ENTER AN AGREEMENT WITH A COMPETITIVE RETAIL
ELECTRIC SERVICES (CRES) PROVIDER
WHEREAS, Ohio Revised Code 9 4928.20 permits a municipality to aggregate customers
within its jurisdiction in order to facilitate customer choice in electric power suppliers and
to promote lower cost electric 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 ofthe City's Municipal Electric Aggregation Program in accordance with
Ohio Revised Code 9 4928.20 (C); and
WHEREAS, the City entered into an agreement with AMPO, Inc. to provide management
services for the electric aggregation program; and
WHEREAS, AMPO, Inc. has identified two Competitive Retail Electric Service (CRES)
providers, WPS Energy Services, Inc. and Green Mountain Energy Company, that will be
submitting firm offers for the provision ofthe services; and
WHEREAS, due to the volatility of the electric power supply market, it is necessary to
authorize the City Manager to enter into a contract with either WPS Energy Services, Inc.
or Green Mountain Energy Company 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 WPS Energy
Services, Inc. or Green Mountain Energy Company, for the provision of competitive retail
electric aggregation services and power supply 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 represent at least 3% savings ofthe generation
portion of the customer's electric bill to compare, at a minimum.
(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.
(e) The City Manager 0 r her designee shall b e informed 0 f any vendors used for
soliciting customers or promotion of services by the CRES Provider.
(f) The Agreement shall not be transferred or assigned by the CRES Provider without
prior authorization of City Council.
(g) The CRES Provider's rates shall include a per kWh administrative fee.
RECORD OF RESOLUTIONS
Dayton legal Blank Ca.. Farm No. 30045
I Resolution No. .. 34-03 Page 2
===c=,=,==-===c--~1'- Passed ..
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Section 2.
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The Agreement shall not become effective until approved as to form by the City Attorney
and signed by the City Manager.
" Section 3.
I
Ii All advertisements, brochures, public relation and consumer education materials produced
I; by or for the City in relation to the Proposal and the Agreement authorized herein shall be
j1
I submitted to the City Manager or her designee for review and approval prior to
!
!i dissemination.
,.
Section 4.
This Resolution shall take effect and be in force on the earliest date permitted by law.
of ~ ,2003
ATTEST:
~(2 ~
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.
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Final - April 10, 2003
Master Services Agreement
Between
City of Dublin
And
This Master Services Agreement (the "Agreement") IS entered into as of
("Effective Date") between
(" ") 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, is certified by the Public Utilities Commission of Ohio
("PUCO") as a Competitive Retail Electric Service ("CRES") Provider to sell competitive retail
electricity and related service to consumers and governmental aggregation programs in the State
of Ohi<r.
WHEREAS, the Parties desire to enter into certain transactions associated with
's provision of CRES generation and related services (collectively, "Retail Electric
Services") necessary to serve the electricity accounts of Aggregation Members within the electric
service territory of Columbus Southern Power Company ("Columbus Southern"), a subsidiary of
the American Electric Power Company ("AEP"), enrolled in the Municipality's Governmental
Aggregation program.
WHEREAS, provides CRES 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
electric service-under authority conferred by, inter alia, Section 4928.20, Revised Code.
WHEREAS, The Municipality has been or will be certified by the Commission as a
Governmental Aggregator pursuant to Chapter 4901 :1-24-01, 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 electricity 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, desires to enter into a relationship with
Municipality whereby shall provide the Retail Electric 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 Electric Services hereunder; and
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WHEREAS, the Parties have established herein the terms and conditions governing
's provision of the Retail Electric 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) Authoritv to Purchase: The Municipality, as Governmental Aggregator, is or will be
authorized to arrange from the Retail Electric 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 Electric Services for those Aggregation Members of the Aggregation Group
included within the rate classes set forth in Exhibit B hereto. shall not be obligated
to serve any customers other than those in the rate classes listed in Exhibit B.
Municipality may seek a different provider for the customers not included in the rate
classes set forth in Exhibit B. Municipality may, in its sole discretion, provide with
the opportunity to serve those customers
(b) Governmental Aggregator. Municipality shall obtain and maintain a certificate from
the Commission to perform the functions of the Governmental Aggregator. will
provide the Municipality with all necessary data that is reasonably available to to
assist the Municipality with filings or any other information required by the Commission.
(c) Opt-Out Provisions. , 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 correspondence to assure that the
initial opt-out notices with the agreed upon pricing, terms, and procedures can be sent out by
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. shall be responsible for the
administration of the accounts of the Aggregation Members. Pursuant to the Municipality's
authority as Governmental Aggregator, the Municipality assigns the right to collect the
applicable past due amounts owed to as set forth in this Agreement.
1.2 Firm Power SUlJplv. will provide sufficient firm Retail Electric Services to
the Delivery Point of the Local Utility, as defined in Section 1.3 hereof, to serve the
requirements of the Aggregation Group. If has arranged for firm transmission
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
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interruption in distribution service to the Aggregation Group, is solely the responsibility of the
Local Utility and 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 Electric Services supplied by
to the Aggregation Group shall be any interface with the Local Utility for direct
redelivery to the Aggregation Group by the Local Utility. Such Retail Electric Services shall be
in a form and quality compatible with the Local Utility's electric distribution system.
1.4 Responsibility for Delivery Costs. will be responsible for obtaining or
providing firm transmission 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 electric 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, and shall be
the responsibility of each respective Aggregation Member.
1.5 Municipality as Governmental Aggregator. The Municipality as Governmental
Aggregator has no financial responsibility whatsoever.
1.6 Credit Risk & True-Up Procedures. will be responsible for the risk of non-
payment by any Aggregation Member for the Retail Electric Services-related portion of any such
Aggregation Member's electric bill, subject to the "Bad Debt" risk as set forth in Exhibit C
hereto. If this Bad Debt risk exceeds one and one-half percent (1.5%) of the total outstanding
billings of the Aggregation Group portfolio, calculated as described in Exhibit C hereto,
may apply a surcharge by way of a rider to the existing rates pursuant to the
methodology set forth in Exhibit C. The Local Utility shall continue to bear the risk of non-
payment by any Aggregation Member of any portion of such Aggregation Member's bill not
related to the Retail Electric Services.
1.7 Plan of Operation and Governance. shall assist Municipality in the
development of a Plan of Operation and Governance ("Operation Plan") for the provision of the
Retail Electric Services. The Municipality shall comply with all material terms of the Operation
Plan, which Operation Plan shall comply with the Commission's requirements.
1.8 Consumer Education. shall assist the Municipality in designing and
implementing a consumer education plan concerning electric de-regulation in Ohio.
1.9 Environmental Disclosures. will be responsible for preparing and paying for
any environmental disclosures.
1.10 Other Assistance. will endeavor to assist Municipality with other matters as
mutually agreed to by the parties.
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Article Two. Load & Load Information
2.1 Customer Data and Load Forecast Information. Municipality hereby authorizes
to obtain from the Local Utility all applicable Customer Data and Historical Load
information regarding the Load consumption characteristics of the Aggregation Group
(collectively, the "Load Forecast Information") when available and necessary. Municipality will
assist in obtaining any Load Forecast Information including, but not limited to,
planned or unplanned reductions or increases in the power consumption of the Aggregation
Group as a whole or the addition or deletion of any specific Load Asset. Upon request by
, Municipality shall promptly provide to the Local Utility the authorizations and/or
approvals necessary for to obtain the Load Forecast Information.
2.2 Release of Customer Information. The Municipality will cooperate with
and promptly provide appropriate authorization and documentation to enable the
Local Utility to release to 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. shall use all such information solely in connection with its
service to the Governmental Aggregation..
2.3 Addition of Aggregation Members. Consumers that: (a) become part of the Aggregation
Group for the first time after the opt-out opportunity(s); or (b) "opt-out" of or otherwise 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 and served at the then-current price hereunder or
at a market-based price, at 's sole and absolute discretion. may develop
an alternative rate for eligible consumers that have exited and desire to reenter the Aggregation
Group.
Aggregation Members that move from one location to ~other 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, , 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.
2.4 Exit Fee. Residential consumers that join the Aggregation Group and then leave during
the first two years of their then current service period may be charged by a $25 exit
fee at 's sole and absolute discretion.
Article Three. Operations
3.1 Scheduling. , either directly or through its designee shall be perform all
scheduling. shall be responsible for all scheduling for delivery to the Aggregation
Members.
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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 , 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. shall charge the rates for service provided to Aggregation Members
based on the assigned rate class as set forth in Exhibit B hereto.
4.2 Switching Fee Reimbursement. will charge to Aggregation Members the
applicable switching fee imposed by the Local Utility.
Article Five. Billing
5.1 Billing. The Local Utility will provide consolidated billing for the services provided
hereunder. Notwithstanding the foregoing, if offered by the Local Utility in the future,
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 Electric Services, or (B) Regulations or
court action adversely and materially impacts a party's ability to perform
hereunder or otherwise provide the Retail Electric Services.
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(iii) Adverse Governing Organization Action. Any action by a Governing
Organization that adversely and materially impacts a party's ability to perform
hereunder or otherwise provide the Retail Electric Services.
(iv) New Taxes. Any ad valorem, property, occupation, severance, generation, first
use, conservation, Btu or energy, transmission, 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) Termination Event. The end or material modification of the Market Development
Period (as defined by Am. Sub. S. B. 3 ("SB 3"), the Commission and in the Local Utility's
Transition Plan Settlement) shall constitute a "Termination Event" hereunder.
(c) 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
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
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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 of this Agreement shall commence on the Effective
Date hereof and terminate on December 31, 2005, subject to the early termination provisions set
forth herein. 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 three (3)
months prior to the end of the initial term, and in the case of any renewal 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 electricity 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
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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, govefnmental
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
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
G) 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 , as of the Effective Date and of each delivery of electricity
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 performed
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 of transactions that the Municipality may enter into with ,
8.3 Additional Representations of further represents that it will
transfer to the Aggregation Group good title, as applicable at the Delivery Point or otherwise of
all Retail Electric Services delivered hereunder, that it has the right to sell such Retail Electric
Services, that such Retail Electric Services shall be free from all taxes, liens, encumbrances and
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claims, and that such Retail Electric Services complies with the technical specifications and will
be in a form and quality specified by the 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
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 LA W,
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
LIMITATION LOSS OF PROFITS OR REVENUE OR THE LOSS OF USE OF EITHER,
COSTS OF REPLACEMENT RETAIL ELECTRIC SERVICES OR OF CAPITAL, OR
CLAIMS OF CUSTOMERS OF THE OTHER PARTY RELATING TO LOSS OF RETAIL
ELECTRIC SERVICES SUPPL Y, 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.
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Article Eleven. Notices
11.1 Unless otherwise specified, all notices, requests, statements or payments under this
Agreement shall be made to the following:
Energy Company City of Dublin
All Notices: All Notices:
Street: Street:
City and State: City and State:
Zip: Zip:
Attn: President, 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.
Article Twelve. Confidentiality
12.1 Obligation of Confidentiality. The parties agree for themselves and their respective
Representatives to keep confidential all Confidential Informati0n 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.
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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.
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.
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13.9 Assigrunent. This Agreement shall not be assigned by either party without the written
consent of the other, which consent shall not be umeasonably 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 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.
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
Execution of Agreement
The Parties acknowledge their agreement to the terms herein by their signatures below.
City of Dublin
By:
Name:
Title:
Energy Company
By:
Name:
Title:
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Final - April 10, 2003
Exhibit A
Definitions
II Act" means Ohio Revised Code, Chapter 4928, 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. F or 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 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,
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oversee, recommend or declare a financial emergency or similar state of
financial distress;
(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.
"1\
"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 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, load and usage information, account number, rate classification, and
similar information that is applicable and necessary for to provide its Retail
Electric 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,
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Final - April 10, 2003
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 of due diligence of the
party claiming such inability. A change in economic electric power 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 systems of generation, transmission or distribution relied upon for
supplying Retail Electric Services under this Agreement will constitute Force Majeure,
provided that has arranged for firm transmission service as noted ~n 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
electric service under authority conferred by, inter alia, Section 4928.20, Revised Code.
Governmental Aggregation" means a program certified by the Commission for the
provision of competitive retail electric service under authority conferred by, inter alia,
Section 4928.20, Revised Code.
"Governing Organization" means any transmission independent system operator, power
pool or regional transmission organization, or any successor organization, group, agency,
corporation or body.
"Historical Load" means the most recent history of hourly Load for the Aggregation
Group and/or Aggregation Member(s).
"Load" means the electrical power demand of the Aggregation Group and/or
Aggregation Member(s).
"Load Asset" means the electrical power demand of an Aggregation Member.
"Local Utility" means the electricity distribution utility providing services to the
Aggregation Group of the Governmental Aggregation program.
"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.
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Final - April 10, 2003 .
Exhibit B
Service Classifications
Name of Local Utility Residential or Commercial CIS Codes
Customer Class?
Columbus Southern Power Residential
Columbus Southern Power Commercial ,
ADD SPECIFIC RATES ---- SEE PARA 4.1 (PRICE) HEREIN.
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.
Exhibit C
Credit Risk & True-Up Procedures
Pursuant to Section 1.6 in the Agreement (Credit Risk & True-Up Procedures), but
subject to the absence of purchase of receivables arrangement with the Local Utility,
may impose a surcharge to each Aggregation Member's then ;existing rate pursuant to the
methodology set forth below:
will make reasonable efforts as outlined below to minimize the amount of
past due amounts owed as a result of non-payment from the Aggregation Member(s) as defined
below ("Bad Debt"). will remain responsible for Bad Debt to the extent such Bad
Debt does not exceed 1.5% of the billed gross sales revenues by to the Aggregation
Group as set forth herein. Any amount of Bad Debt in excess of this level may be collected from
the Aggregation Group in the form of an additional fee (i.e., a Bad Debt rider) that will be
incorporated into the rates charged by
For the purposes of this section, Bad Debt is defined as follows. The amount of past due
amounts owed to after the subject Aggregation Member(s) is "dropped" back to the
Local Utility (returned to the Local Utility's standard offer service or applicable service) for
being past due in its payments by at least 60 days from oldest statement owed. , upon
dropping the customer, would pursue collection on the outstanding debt via customer
communications for no more than 60 days from the drop date, after which time the past due
amounts would be written off and forwarded to a collection agency for follow-up. The amount
written-off will be the "Bad Debt." Any subsequent collection from these written-off amounts
will be credited against future "Bad Debt" amounts.
The amount of the rider to recover the Bad Debt ("Bad Debt rider") will be developed as
set forth below. The term of the agreement will be divided into 6-month allocation periods. The
first allocation period will begin on the first day of service and will end 6 months later. Each
following allocation period will occur consecutively immediately following the prior allocation
period. At the end of the first allocation period, the amount of Bad Debt during the allocation
period will be calculated and compared to billed gross sales revenue over the same period. If this
Bad Debt percentage is greater than 1.5% of the billed gross sales revenue over the same period,
then the amount of Bad Debt in excess of 1.5% will be calculated along with estimated kWh
sales expected during the following allocation period. The amount of the Bad Debt rider will be
the Bad Debt in excess of 1.5% of the billed gross sales revenue over the applicable period
divided by the estimated kWh sales. This Bad Debt rider will be added to the then existing rate
of each Aggregation Member for the following allocation period.
This process will continue for each subsequent allocation period, with any uncollected
Bad Debt carried over to the next period, and any subsequent collections from the written-off
amounts credited to the Bad Debt amount. If any Bad Debt in excess of 1.5% remains after the
end of the final allocation period, will notify the Municipality of amounts in excess
of 1.5% and the Municipality in its sole discretion will determine if such amounts can be
collected from any new supplier to the Aggregation Group during the first 6 months of the new
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, .
supplier's tenure using the methodology described above. Any such collections made by the
new supplier should be paid to on a monthly basis during this period.
Notwithstanding the foregoing, the Governmental Aggregator shall have no obligations to collect
any bad debts owed at the termination or conclusion of this Agreement
The Bad Debt rider will be calculated to cap Bad Debt at 1.5% during each
allocation period. The Bad Debt excess in one allocation period will be balanced against Bad
Debt surplus in another allocation period. If the prior allocation period's Bad Debt rider does not
recover the sufficient level of revenue during that allocation period's rider's existence, then any
under collection in revenue will be carried over and added to the following allocation,period's
Bad Debt rider. If the Bad Debt rider does recover the sufficient level of revenue during that
rider's existence, then any over collection in revenue will be carried over to reduce the following
allocation period's Bad Debt rider. Further, any subsequent collection from the written-off
amounts will be credited against future "Bad Debt" amounts. will quarterly provide
reports to Municipality detailing the status of the Bad Debt rider, or earlier if the Municipality so
requests.
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