2004-250 . 1 0
RESOLUTION NO. 2004- 25
A RESOLUTION APPROVING AN ALTERNATE POWER PRODUCTION SOURCE
FOR THE VILLAGE OF BUFFALO GROVE'S BUFFALO GROVE GOLF COURSE,
ARBORETUM GOLF COURSE, BUFFALO GROVE TRAIN STATION AND
BUFFALO GROVE'S WATER AND WASTEWATER PUMPING FACILITIES
WHEREAS, the State of Illinois has provided for the deregulation of electrical
supply generators which has resulted in an opportunity for savings on electrical power
expenses; and,
WHEREAS, the Village desires to benefit from the cost savings which have been
made available as part of the State of Illinois' electrical power supply deregulation
program; and,
WHEREAS, the Village has previously participated in a competitive evaluation
process with other local governments in the Chicago metropolitan area and determined
that a better source for electrical power supply can be achieved through contract with the
Constellation New Energy, Inc.;
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE PRESIDENT
AND BOARD OF TRUSTEES OF THE VILLAGE OF BUFFALO GROVE, COOK
AND LAKE COUNTIES, ILLINOIS, as follows:
Section 1. The bid requirements in Section 2.08.040.I. of the Buffalo Grove
Municipal Code are hereby waived. The attached agreement entitled "Fixed Price
Electricity Supply Agreement" related to Buffalo Grove account nos. 0025585004,
0111523025, 0111585007 and 1948149005 is hereby approved.
Section 2. The Village Manager is authorized and directed to execute the
agreement. A copy of said agreement is attached hereto and made a part hereof.
AYES: 5 - Braiman, Glover, Berman, Kahn. Trilling
NAYES: 0 - None
ABSENT: 1 - Johnson
PASSED: November 15 , 2004
APPROVED: November 15 , 2004
ATTEST:
Village Clerk
G:\PWDIRGRP\LHC\COMED\resO4cne.doc
APPROVED:
II /
Village President
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Full Legal Name ( "Customer"):
Village of Buffalo Grove
Business Address:
51 Raupp Blvd.
Buffalo Grove, IL 60089
Phone/Fax #: 847- 459-2547 / 847537 -5845
Fixed Price
Electricity Supply Agreement
Customer - Billing Address:
Billing Contact:
Billing Phone/Fax #:
Contact/Phone
CUSTOMER AND CONSTELLATION NEWENERGY, INC. ( "NewEnergy ") AGREE AS FOLLOWS:
•
Capitalized terms will have the meaning set out in this Electricity Supply Agreement, including the General Terms and Conditions on the reverse side
( "Agreement "); generally the words `you" and "your" refer to the Customer listed above and the words "we" and "us" refer to NewEnergy, unless the
context clearly requires otherwise.
Purchase and Sale of Electricity: You agree to purchase from us on an exclusive basis and we agree to supply, or caused to be supplied, all of your electricity
requirements for the Accounts identified in the Account Schedule above pursuant to the terms of this Agreement. By signing this Agreement, you authorize us to enroll
your Accounts at RTO and with your EDC so that we can provide service to you. You will take such actions as we request to allow us to enroll your Account(s) in a timely
manner. You also give us the authority to supply you with electricity from whatever source we choose; and Customer transfers, conveys and assigns to NewEnergy all
right, title and interest in and to Customer's interest under EDC's Power Purchase Option for the Account(s), including without limitation all charges and credits relating
thereto.
Term: If we determine that any commercial terms inserted into this Agreement - like for example your Start Date or End Date - are not correct, we will notify you in writing
of the corrected terms. IF YOU WISH TO CANCEL THIS AGREEMENT BASED ON THE CORRECTED TERMS, YOU MAY DO SO WITHOUT PENALTY BY
PROVIDING WRITTEN NOTICE TO US WITHIN 2 BUSINESS DAYS OF YOU R RECEIPT OF SUCH NOTICE. IF WE DO NOT RECEIVE YOUR REJECTION NOTICE
DURING THAT TIME, YOU WILL BE DEEMED TO HAVE CONCLUSIVELY ACCEPTED THE REVISED TERMS, AND YOU WILL BE BOUND BY THEM. Not less than
seventy -five (75) days prior to expiration of this Agreement, NewEnergy will notify Customer of the Pricing Schedule applicable to any additional term or extension of this
Agreement. THIS AGREEMENT WILL AUTOMATICALLY RENEW FOR ADDITIONAL TWELVE (12) MONTH PERIODS UNDER THE TERMS OF THE APPLICABLE
PRICING SCHEDULE UNLESS CUSTOMER NOTIFIES NEW ENERGY IN WRITING WITHIN FIVE (5) DAYS OF RECEIPT OF THE APPLICABLE PRICING
SCHEDULE THAT SUCH RENEWAL WILL NOT OCCUR. At the end of the term of this Agreement (including any renewal term), if for any reason Customer fails to
renew this Agreement or terminates some or all of the Accounts, we may continue to serve your Aocount(s) on a month- to-month holdover basis (or "Holdover Term') and
charge you the applicable EDC bundled service or EDC interim supply service rates. This Agreement will continue to govern our relationship for the supply of electricity
during the Holdover Term, and either of us may terminate the Holdover Term at any time upon 30 days advance written notice to the other. As an alternative to supplying
your electricity on a holdover basis following termination, expiration or cancellation of this Agreement, we may instead switch your Accounts to the applicable EDC interim
supply service.
Your Invoice: Your invoice will contain all charges applicable to your electricity usage, including the applicable Guaranteed Energy Savings Charge; EDC Charges;
Transmission Charges; and Taxes. All amounts charged are due in full within 30 days of the invoice date, and we reserve the right to adjust amounts previously invoiced
based upon supplemental or additional data we may receive from your EDC, the RTO or otherwise. We will use our reasonable efforts b send you invoices based on
actual data provided by the EDC and /or RTO. If we do not receive actual data in a timely manner, we will make a good faith estimate using your historical usage data and
other information to calculate your invoice. Once we receive actual data, we will reconcile the estimated charges and adjust them as needed in subsequent invoices. Asa
unit of local government, Customer shall pay invoices, give notice of billing disputes, and pay accrued interest on past due amounts at the rate provided, under and in
accordance with the Illinois Local Government Prompt Payment Act. If we receive payment after the due date, a late payment charge of 1.09/o of the invoice amount will
be assessed. In addition, interest will accrue daily on outstanding amounts from the due date until the bill is paid in full at a rate of 1.0% per month, or the highest rate
permitted by law, whichever is less. You will be deemed to have waived any billing disputes unless you present them to us in writing within 60 days after the date on your
invoice. All other claims you may have related in any way to this Agreement and /or the products and services we provide will be deemed waived if you do not
notify us of such claims within 60 days after termination or expiration of this Agreement. In the event that the Customer is not eligible to receive a single bill from
NewEnergy, NewEnergy will invoice Customer for then applicable Fixed Price Energy Charges, line losses, and Transmission Charges only, and Customer will be invoiced
directly by the EDC for all other charges.
IN THE EVENT OF AN EMERGENCY, POWER OUTAGE OR WIRES AND EQUIPMENT SERVICE NEEDS, CONTACT YOUR APPLICABLE EDC AT: 800.3347661.
You represent and warrant that your duly authorized representative executed this Agreement on your behalf as of the date set forth below. This Agreement
shall not be binding or enforceable against NewEnergy unless and until signed by an authorized representative of NewEnergy.
Constellation NewEnergy, Inc
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Date: IN V 1 5
J Y02004 All rights reserved: Constellation NewEnergy, Inc.; 6 -9 -04
CUSTOMER: Village of Buffalo Grove
(Full Legal Name) p
Printed Name: W r.U-400C bf- t3ewk
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Date: M PZKAC-2 17. 200q
41116111557243686
GENERAL TERMS AND CONDITIONS
1. Definitions:
"Delivery Point" means existing and future points of interconnection between a third -parry
transmission system and /or distribution system and your EDC's transmission system and/or
distribution system.
"EDC" means the transmission and distribution service provider owning and /or controlling and
maintaining the distribution system required for delivery of electricity to the Accounts.
"EDC Charges" include, but are not limited to: distribution and delivery services charges, which
may include meter rental and installation charges, distribution facilities charges, customer
charge, facilities, franchise fees, lighting charges, public programs, Rider 28 charges, and
decommissioning charges, all as defined by the EDC Tariffs, and any similar or related charges
the EDC may impose from time to time.
"RTO" means PJM -West, L.L.C. ( "PJM"), or other entity approved by the Federal Energy
Regulatory Commission or other applicable regulatory body, that provides transmission
service within Commonwealth Edison Compan ij s service territory.
"ICC" means the Illinois Commerce Commission, or any successor entity.
"Taxes" means all federal, state, municipal or other governmental taxes, duties, fees, levies,
premiums or any other charges, relating to the sale, purchase or delivery of electricity, whether
direct or indirect, together with all interest, penalties or other additional amounts imposed,
including but not limited to gross receipts tax or fees, sales tax, and any other tax (new or
otherwise) imposed by any governmental entity.
"Transmission Charges" are the following costs and charges incurred by NewEnergy that are
associated with transmission service far the Accounts, including EDC's Rider TS, andllary
services, RTO administrative fees, and/or congestion charges.
2. Cash deposit and other security. Usually we do rat require cash deposits. Nevertheless at
any time we may require that you provide information to us so that we may evaluate your
creditworthiness. We reserve the right to require that you make a cash deposit or provide other
security acceptable to us it In our opinion your credit, payment history, or ability to pay your bills
as they come due becomes a concern. You will need to make any required cash deposit or
supply other required security within 5 days of our request.
3. Default under this Agreement You will be in default under this Agreement if you fail to: pay
your bills on fine and in full; provide cash deposits or other security as required; perform all
material obligations under this Agreement and you do not cure such default within 5 days of
written notice from us; or declare or file for bankruptcy or otherwise become insolvent or
unable to pay your debts as they come due.
4. What we can do If you are in default. If you are in default under this Agreement, in addition
to any other remedies available to us, we may:
• terminate this Agreement entirely and switch you to the applicable EDC interim supply
service; and /or
• require that you compensate us for all losses we sustain due to your default.
5. Certain payments to us following default or termination. As a result of your default or
otherwise in circumstances where we cancel this Agreement, the compensation we can
recover from you may include, without limitation:
• payment of all amounts you owe us for electricity provided to you;
• when the Agreement is terminated, payment of an amount (that we will calculate using
our reasonable judgment) equal to the positive difference between (A) the dollar amount
you would have paid to us under this Agreement had it not been terminated early and (B)
the dollar amount we can resell such electricity for to a third party under themcurrent
market conditions; and
• all costs (including attorneys' fees, expenses and court costs) we incur in collecting
amounts you owe us under this Agreement.
6. Changes in law, market structure, andlor your electricity needs or classifications. If a
change in (a) law, rule, regulation, ordinance, statute, judicial decision, administrative order,
RTO Operating Guides, RTO Protocols, zonal boundary definitions, EDC Tariffs, and the like, (b)
electricity market structure, or (c) your electricity needs or classifications causes our costs under
this Agreement to increase, we will It ave the right to pass such increased costs on to you without
mark -up. We also will have the right to cancel this Agreement without penalty upon notice
to you.
7. Events beyond either of our reasonable control. If something happens that is beyond
either of our reasonable control that prevents either of us from performing our respective
obligations under this Agreement, then whichever one of us cannot perform will be relieved from
performance until the situation is resolved. Examples of such events include: acts of God, fire,
flood, hurricane, war, terrorism; declaration of emergency by a governmental entity, RTO or the
EDC; curtailment, disruption or interruption of electricity transmission, distribution or supply;
regulatory, administrative, or legislative action, or action or restraint by court order or other
governmental entity; actions taken by third parties not under your or our control, such as RTO or
an EDC. Such events shall not excuse failure to make payments in a timely manner for
electricity supplied to you prior to such event Further, if such an event prevents performance for
more than 15 days, then whichever one of us whose performance was not prevented by such
events shall have the tight to terminate the Agreement without penalty upon written notice to the
other.
6. Delivery point and Indemnification obligations. We will deliver electricity to the Delivery
Point. At that pant fife and risk of loss related to the electricity transfer to you, and you are
responsible for all transmission, distribution, and other costs (including Taxes and other fees)
related to the final delivery to the facilities to which the Accounts relate as well as your use of the
electricity. While we will make arrangements for the delivery of electricity to you by your EDC,
we will have no liability or responsibility for matters within the control of the EDC or the RTO-
controlled grid, which include maintenance of electric lines and systems, service interruptions,
02004 All rights reserved: Constellation NewEnergy, Inc.; 6 -9 -04
•
loss or termination of service, deterioration of electric services, or meter readings. FROM AND
AFTER THE POINT AT VHICH THE EDC DELIVERS THE ELECTRICITY TO YOUR
FACILITIES, YOU WILL DEFEND, INDEMNIFY AND HOLD NEWENERGY HARMLESS FROM
ANY AND ALL CLAIMS ( NCLUDING CLAIMS FOR PERSONAL INJURY, DEATH, OR
PROPERTY DAMAGE), LOSSES, EXPENSS (INCLUDING ATTORNEYS FEES), DAMAGES,
SUITS, CAUSES OF ACTION AND JUDGMENTS OF ANY KIND RELATED TO OUR DUTIES
AND OBLIGATIONS HEREUNDER, THE DELIVERY TO YOU AND YOUR USE OF THE
ELECTRICITY.
9. Limitation on Liability. NOTWITHSTANDING ANY OTHER PROVISION IN THIS
AGREEMENT, IN NO EVENT WILL NEWENERGY OR ANY OF OUR AFFILIATED
COMPANIES BE LIABLE FOR ANY CONSEQUENTIAL„ EXEMPLARY, SPECIAL,
INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST
OPPORTUNITIES OR LOST PROFITS, EVEN IF WE HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. NEWENERGY'S TOTAL LIABILITY RELATED TO THIS
AGREEMENT, WHETHER RISING UNDER BREACH OF CONTRACT, TORT, SRICT
LIABILITY OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF YOUR FIRST MONTH'S
ELECTRICITY BILL. NO WARRANTY, DUTY, OR REMEDY, WHETHER EXPRESSED,
IMPLIED OR STATUTORY, ON NEWENERGY'S PART IS GIVEN OR INTENDED TO ARISE
OUT OF THIS AGREEMENT, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR USE.
10. Applicable law. THIS AGREEMENT WILL BE GOVERNED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING EFFECT
TO ANY CONFLICTS OF LAW PROVISIONS. WE BOTH AGREE THAT EXCLUSIVE
JURISDICTION AND VENUE FOR THE ADJUDICATION OF ANY SUIT, CLAIM, ACTION OR
OTHER PROCEEDING, WHETHER AT LAW OR IN EQUITY, RELATING TO THIS
AGREEMENT WILL BE IN COOK COUNTY, ILLINOIS. WE ALSO BOTH AGREE TO
IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY WITH
RESPECT TO ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT.
11. Customer service information. Please contact our Customer Service department toll free
at 1- 888 - 6384606 or locally in Chicago, Illinois at 312-704-9200 with any questions.
12. Notices. All notices will be in writing and delivered by hand, certified mall, return
receipt requested, or by express carrier to our respective business addresses. Our
business address is 550 W. Washington Blvd., Suite 300, Chicago, IL 60661. Either of us
can change our address by notice to the other as provided for in this paragraph.
13. Miscellaneous Provisions. If in any circumstance we do not provide notice of, or object to,
any default on your part under this Agreement, such situation will not operate or be construed as
a waiver of any future default, whether like or different in character. If any portion of this
Agreement is held legally invalid, the remainder will not be affected and will be gelid and
enforced to the fullest extent permitted by law and equity, and there will be deemed substituted
for the invalid provisions such provisions as will most nearly carry out our mutual intent as
expressed in this Agreement. You may not assign or otherwise transfer any of your rights or
obligations under this Agreement without our prior written consent. Any such attempted transfer
will be void. This Agreement contains the entire agreement between lath of us, supersedes any
other agreements, discussions or understandings (whether written or oral) regarding the subject
matter of this Agreement, and may not be contradicted by any prior or contemporaneous oral or
written agreement. A facsimile copy with your signature will be considered an original for at
purposes, and you will provide original signed copies upon request. Except as otherwise
explicitly provided in this Agreement, no amendment to this Agreement will be valid or given any
effect unless signed by both of us. The applicable provisions of this Agreement will continue in
effect after termination or expiration of this Agreement to the extent necessary, including those
for billing adjustments and payments and with respect to your indemnification obligations. We
are an Independent contractor under this Agreement, and nothing in this Agreement will be
construed to constitute a joint venture, fiduciary relationship, partnership or otter joint
undertaking. This Agreement is a "forward contract' and NewEnergy is a 'forward contract
merchant' for purposes of the U.S. Bankruptcy Code, as amended. The terms of any
purchase order (PO) you send to us and/or any alterations, additions, or modifications
you make to the preprinted terms of this Agreement shall be void and without any effecL
14. Certain Warranties: You warrant and represent that your aggregate consumption and usage
during any 12 month period is greater than 15,000 kilowatt-hours and that the electricity supplied
under this Agreement is not for use at a residence.
15. Usage and Account knfor motion. Customer acknowledges that the Price is based upon
Customer's projected usage and consumption pattem(s) (weather adjusted) for all Account(s),
and Customer's eligibility for EDC's Rate RCDS and Rider PPO as of the Start Date. Customer
agrees to notify NewEnergy in advance of any material variance in usage and /or consumption
patterns, and Customer agrees to bear any actual and incremental charges resulting from any
variance in consumption in excess of fifteen percent (15 %) during summer months and thirty
percent (30 %) during non - summer months, as defined by EDC, as compared to the projected
usage and consumption patterns for the Account(s). Customer will not be responsible for such
charges if it provides NewEnergy with not less than thirty (30) days prior written notice of such
anticipated change in usage and consumption patterns, as long as the variance remains within
the tolerance percentage as stated above. Notwithstanding the foregoing, Customer
acknowledges NewEnergy's right, which is hereby reserved, to modify tie Fixed Price(s) upon
thirty (30) days prior written notice to Customer If Customer's usage and/or consumption patterns
have changed materially compared to the projected usage and consumption patterns during the
Tenn.
41116111557243686
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ACCOUNT SCHEDULE
Expiration Date: November 18, 2004
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Account Number
Service Address
Switch Date
End MonthYear
NTOU Price ( Wh)
Off -Peak Price ( Wh)
On -Peak Price MM)
0025585004
1 W. Ha Day R .,Bu to rove,IL
1 03 2
0 5
2 71
0.05139
0111523025
50 Raupp Blvd.,Buffalo Grove,IL
12/13/2004
May -2005
0.03663
$0.02905
$0.04905
0111585007
48 Raupp Blvd.,Buffalo Grove,IL
12/13/2004
May -2005
0.03861
$0.02953
$0.05120
1948149005
801 Commerce Ct,13uffalo Grove,IL
190212004
-2005
$0.04042
$0.04042
$0.04042
Your Price: The price for the electricity provided to you under this Agreement is indicated in the Account Schedule above ( "Energy Charge "). This price does not include
EDC Charges; Taxes; Transmission Charges, and other applicable charges discussed below all of which will be passed through to you on our invoice without markup.
Supply to your Accounts will begin on the Start Date upon receipt of a signed Agreement and General Account Agent form by facsimile to (312) 704 -8530 (Attention:
Account Enrollment) on or before 2:00 p.m. CPT of the Expiration Date identified above and end on the regularly scheduled EDC meter read dates in the month and year
listed above unless we are unable to enroll your Accounts because of circumstances beyond our control (including any acts or omissions of RTO or the EDC), in which case
the Start Date will commence on the next regularly scheduled EDC meter read date. In this circumstance, we will have the right, but will not be required, to extend your End
Date to reflect the delay in the Start Date. If we extend your End Date, we will notify you in writing. Otherwise the End Date will remain the same.
NewEnergy Contract Number: 41116111557243686
J
02004 All rights reserved: Constellation NewEnergy, Inc.; 6 -9 -04
41116111557243686