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R-24-15 Resolution Authorizing the Village Administrator to Enter into Agreements Purchasing Electricity Resolution No. (6'_R A Resolution Authorizing the Village Administrator to Enter into Agreements Purchasing Electricity from Various Electricity Suppliers WHEREAS, the President and Board of Trustees desire to enter into agreement(s)with certain suppliers of electricity allowing for a financial savings to the Village regarding the Village's use of electricity for the facilities it owns and operates; and WHEREAS, because of the timing required to receive the largest savings,the vendor and actual cost of the electricity provided has not yet been established; and P Y BE IT RESOLVED by the Village President and Board of Trustees of the Village of Lemont as follows: SECTION ONE: The Village Administrator, in his discretion, is authorized to execute one or multiple agreements with the same or different electricity suppliers, that have been approved as to the form and content by the Village Attorney and establishes a financial savings for the cost of electricity for Village owned and used facilities; and to take any other steps necessary to carry out this Resolution. SECTION TWO: This Resolution shall be in full force and effect from and after its passage and approval as provided by law. PASSED AND APPROVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT, COUNTIES OF COOK, WILL AND DUPAGE, ILLINOIS on this // day of ) ”,s , 2015. PRESIDENT AND VILLAGE BOARD MEMBERS: AYES: NAYS: ABSENT: ABSTAIN Debby Blatzer Paul Chialdikas Clifford Miklos / Ron Stapleton Rick Sniegowski 1/ Jeanette Virgilio #633563 1 . 40 B., . k A President AT' ' 'ST: CHARLENE M. S i LLEN Village Clerk #633563 2 EXHIBIT A Consulting Agreement with DaCott Energy Services,Ltd. #633563 3 Attachment A DACOTT 411) ENERGY SERVICES Consulting Agreement WHEREAS, Village of Lemont"Client," desires to enter into this Agreement ("Agreement") with DaCott Energy Services,Ltd("DES"),in which Client agrees to make DES its exclusive representative to negotiate the purchases of energy for the benefit of Client; NOW THEREFORE,in consideration of the foregoing and the mutual covenants contained herein,the parties agree as follows: SECTION 1:TERM OF THE AGREEMENT and TERMINATION The term of this Agreement shall commence upon the Effective Date,as defined in paragraph below,and continue until terminated by either party.Client may terminate this Agreement for any reason upon providing 30 days prior written notice. DES may terminate this Agreement for any reason upon providing 30 days prior written notice. Either Party may terminate this Agreement if the other Party is in material breach of this Agreement,provided that the non-breaching Party has notified the breaching party in writing of occurrence of such breach and the breaching Party fails to cure the breach within 30 days of notification by the non-breaching Party. SECTION 2:SERVICES PROVIDED BY DES Client and DES agree that DES will be acting as Client's exclusive representative during the term of this Agreement and that DES will perform the following services for Client: • Analyze energy usage patterns throughout various facilities, both historical and projected,to determine the most cost effective transactional structure to meet Client's energy needs; • Develop list of potential suppliers for Client's energy needs and solicit bids for energy supply from the list of approved suppliers; • Monitor the price of energy and supplier rates to optimize Client's energy costs; • Make recommendations to Client regarding transactional structure and timing of execution; • Facilitate the negotiation of contracts between Client and supplier(s)including making recommendations related to contractual provisions; • Provide market research to Client; • Serve as Client's representative with supplier(s); • Collect and review Client's monthly energy invoices to ensure that all contractual obligations are being met by supplier(s); o Provide summarized billing data to Client in a form that meets Client's data requirements; o Act as an advocate on Client's behalf to settle any disputed energy invoice issues; • Other services as may be requested by Client and agreed to in writing by Client and DES. SECTION 3:CONFIDENTIALITY During the term of this Agreement and for a period of two(2)years after the termination of this Agreement,DES (it's employees, subsidiaries, agents, or any other affiliates), shall retain in strictest confidence and secure all knowledge and information which they acquire or have acquired,with respect to any and all information related to Client that is deemed by Client to be confidential. Such knowledge and information shall not be directly or , indirectly disclosed to any person (other than supplier that have a need to know in order to serve Client)without the prior written consent of Client or unless required by statute or by a court with valid jurisdiction by regulatory authority. DES shall notify Client as soon as practicable upon receipt from a third-party of a request or demand for the disclosure of any knowledge or information DEWS has obtained from Client pursuant to this Agreement. CONFIDENTIAL Village of Lemont March 5,2015 Page 2 of 8 SECTION 4:COMPENSATION Client agrees that DES shall receive compensation for the services provided as defined on Attachment A of this Agreement and such compensation will be included within the cost of energy provided by supplier(s)to Client. DES agrees that Client shall have no obligation to make any direct payments to DES for the services provided and that DES's sole recourse,as relates to payments for services provided,shall be to supplier(s). SECTION 5:INDEMNIFICATION Each Party agrees to hold harmless, defend and indemnify the other Party from any and all losses, claims, demands, liability, costs, or expenses, including but not limited to, reasonable costs of litigation and attorney's fees, which arise out of any act or omission of the indemnifying Party in connection with or arising from the obligations contained in this Agreement. SECTION 6: CLIENT'S PROPERTIES This Agreement is limited to the properties owned or managed by the Client. Both parties agree Client can add or delete any property, if such property(s) has been sold, or if Client ceases to manage or own the property. Both parties agree that in the event of regulatory changes that impact the ability of Client to add additional properties to this Agreement, Client shall have the right, but not the obligation,to add such properties to this Agreement. Both Parties agree that any such deletion or addition will be subject to the terms of any valid agreement in place between Client and supplier(s). SECTION 7: WARRANTY OF SERVICES DES warrants that its services shall be performed in accordance with the standards of professional practice,care, and diligence practiced by recognized consulting firms in performing services of a similar nature in existence at the time of performance of the services. This warranty shall be in addition to other warranties expressed in this Agreement,or expressed or implied by law. SECTION 8: INSURANCE Contemporaneous with execution of this Agreement, DES shall provide the Client with certificates and policies of insurance, including, without limitation, comprehensive general liability, automobile liability, and professional liability,all with coverages and limits acceptable to the Village. For good cause shown,the Client may extend the time for submission of the required policies of insurance upon such terms,and with such assurances of complete and prompt performance, as the Client may impose in the exercise of its sole discretion. Such insurance shall provide that no change,modification in,or cancellation of any insurance shall become effective until the expiration of 30 days after written notice shall have been given by the insurance company to the Client.DES shall,at all times during the term of this Agreement,maintain and keep in force,DES's expense,the insurance coverages. SECTION 9: RELATIONSHIP OF THE PARTIES DES shall act as an independent contractor in providing and performing all services. Nothing in,or done pursuant to, this Agreement shall be construed (1) to create the relationship of principal and agent, employer and employee, partners,or joint venturers between the Client and DES;or(2)to create any relationship between the Client and any subcontractor of DES. DES shall take direction solely and directly from the Client. SECTION 10: CONFLICT OF INTEREST DES represents and certifies that,to the best of its knowledge,(1)no Client employee or agent is interested in the business of DES or this Agreement; (2)as of the date of this Agreement neither DES nor any person employed or associated with DES has any interest that would conflict in any manner or degree with the performance of the obligations under this Agreement;and(3)neither DES nor any person employed by or associated with DES shall at any time during the term of this Agreement obtain or acquire any interest that would conflict in any manner or degree with the performance of the obligations under this Agreement. SECTION 11: NO COLLUSION DES represents and certifies that(1)DES is not barred from contracting with a unit of state or local government as a result of(a)a delinquency in the payment of any tax administered by the Illinois Department of Revenue unless CONFIDENTIAL Village of Lemont March 5,2015 Page 3 of 8 DES is contesting,in accordance with the procedures established by the appropriate revenue act,its liability for the tax or the amount of the tax,as set forth in Section 11-42.1-1 et seq.,65 ILCS 5/11-42.1-1 et seq.;or(b)a violation of either Section 33E-3 or Section 33E-4 of Article 33E of the Illinois Criminal Code of 1961, 720 ILCS 5/33E-1 et seq.; (2) only persons,firms,or corporations interested in this Agreement as principals have been those disclosed to the Client prior to the execution of this Agreement; and (3)this Agreement is made by DES without collusion with any other person, firm, or corporation. If at any time it shall be found that DES has, in procuring this Agreement,colluded with any other person,firm,or corporation,then DES shall be liable to the Client for all loss or damage that the Client may suffer,and this Agreement shall,at the Client's option,be null and void. SECTION 12: SEXUAL HARASSMENT POLICY DES certifies that it has a written Sexual Harassment Policy in full compliance with 775 ILCS 5/2-105(A)(4). SECTION 13: NON-DISCRIMINATION In all hiring or employment by DES pursuant to this Agreement, there shall be no discrimination against any employee or applicant for employment because of age,race,gender,creed, national origin, marital status,or the presence of any sensory, mental, or physical handicap, unless based upon a bona tide occupational qualification. DES agrees that no person shall be denied,or subjected to discrimination in receipt of the benefit of any services or activities made possible by,or resulting from,this Agreement. SECTION 14: FREEDOM OF INFORMATION ACT. DES agrees to furnish all documentation related to this Agreement and any documentation related to the Client required under an Illinois Freedom of Information Act (ILCS 140/1 et. seq.) (”FOIA") request within five (5) days after Client issues notice of such request to DES. DES agrees to defend, indemnify and hold harmless the Client, and agrees to pay all reasonable costs connected therewith (including, but not limited to reasonable attorney's and witness fees,filing fees and any other expenses)for the Client to defend any and all causes,actions,causes of action,disputes,prosecutions,or conflicts arising from DES's,actual violation of the FOIA or DES's failure to furnish all documentation related to a request within five(5)days after the Client issues notice of a request. Furthermore, should DES request that the Client utilize a lawful exemption under FOIA in relation to any FOIA request thereby denying that request, DES agrees to pay all costs connected therewith (such as reasonable attorneys'and witness fees,filing fees and any other expenses)to defend the denial of the request. The defense shall include,but not be limited to,challenged or appealed denials of FOIA requests to either the Illinois Attorney General or a court of competent jurisdiction. DES agrees to defend, indemnify and hold harmless the Client, and agrees to pay all costs connected therewith (such as reasonable attorneys' and witness fees, filing fees and any other expenses)to defend any denial of a FOIA request by DES's request to utilize a lawful exemption to the Client. SECTION 15:LIABIUTY OF LIMITATION Unless a result of gross negligence or willful misconduct, the liability of either party to the other for any type of damages is limited to the amount of DES's total fees under this agreement. SECTION 16: AMENDMENT No amendment or modification to this Agreement shall be effective unless and until such amendment or modification is in writing,properly approved in accordance with applicable procedures,and executed by both the Client and DES. SECTION 17: ASSIGNMENT This Agreement may not be assigned by the Client or by DES without the prior written consent of the other party. SECTION 18: BINDING EFFECT The terms of this Agreement shall bind and inure to the benefit of the parties hereto and their agents,successors, and assigns. SECTION 19: NOTICE CONFIDENTIAL Village of Lemont March 5,2015 Page 4 of 8 All notice required or permitted to be given under this Agreement shall be in writing and shall be (i) personally delivered, or (ii) delivered by a reputable overnight courier, (iii) delivered by certified mail, return receipt requested, and deposited in the U.S. Mail, postage prepaid, (iv) by telecopy. Telecopy notices shall be deemed valid only to the extent that they are actually received by the individual to whom addressed and followed by delivery of actual notice in the manner described in either (i), (ii) or (iii) above within three business days thereafter at the appropriate address set forth below. Notices and communications to the CLIENT shall be addressed to,and delivered at,the following address: Village of Lemont Attn:Village Administrator 418 Main Street Lemont,Illinois 60439 Notices and communications to DES shall be addressed to,and delivered at,the following address: DaCott Energy Services,Ltd Attn: Elia Streltsov,Vice President 3 Sugar Creek Center Blvd,Suite 440 Sugar Land,TX 77478 SECTION 20: NO THIRD PARTY BENEFICIARIES No claim as a third party beneficiary under this Agreement by any person,firm,or corporation other than DES shall be made,or be valid,against the Client. SECTION 21: SEVERABILITY If any term,covenant,condition,or provision of this Agreement is held by a court of competent jurisdiction to be invalid,void,or unenforceable,the remainder of the provisions shall remain in full force and effect and shall in no way be affected,impaired,or invalidated. SECTION 22: ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties and supersedes any and all previous or contemporaneous oral or written agreements and negotiations between the Client and DES with respect to the Proposal and the Services. SECTION 23: WAIVER No waiver of any provision of this Agreement shall be deemed to or constitute a waiver of any other provision of this Agreement (whether or not similar) nor shall any such waiver be deemed to constitute a continuing waiver unless otherwise expressly provided in this Agreement. SECTION 24: EXHIBITS Exhibit A is attached to,and by this reference, incorporated in and made a part of this Agreement. In the event of a conflict between an Exhibit and the text of this Agreement,the text of the Agreement shall control. SECTION 25: RIGHTS CUMULATIVE Unless expressly provided to the contrary in this Agreement, each and every one of the rights, remedies, and benefits provided by this Agreement shall be cumulative and shall not be exclusive of any other such rights, remedies,and benefits allowed by law. SECTION 26: EFFECTIVE DATE This agreement shall be binding on the parties and effective only as of the date fully executed by both parties. SECTION 27:NO WAIVER OF TORT IMMUNITY. CONFIDENTIAL Village of Lemont March 5,2015 Page 5 of 8 Nothing contained in this Agreement shall constitute a waiver by the Client of any right, privilege or defense available to Client under statutory or common law, including but not limited to the Illinois Governmental and Governmental Employees Tort Immunity Act,745 ILLS 10/1-101 etseq.,as amended. SECTION 28: GOVERNING LAW AND JURISDICTION The CLIENT and DES agree that this Agreement and any legal actions concerning its validity, interpretation and performance shall be governed by the laws of the State of Illinois without regard to any conflict of laws provisions, which may apply the laws of other jurisdictions. It is further agreed that any legal action between the CLIENT and DES arising out of this Agreement or the performance of the services shall be brought in a court of competent jurisdiction in the County of Cook,State of Illinois. SECTION 29: COMPLIANCE WITH LAWS DES shall comply with all applicable laws, regulations and rules promulgated by any federal,state, local,or other governmental authority or regulatory body pertaining to all aspects of the performance of the services under this Agreement, now in effect, or which may become in effect during the performance of the Services. The scope of the laws, regulations, and rules referred to in this paragraph includes, but is in no way limited to, the Illinois Human Rights Act, Illinois Equal Pay Act of 2003,Occupational Safety& Health Act along with the standards and regulations promulgated pursuant thereto(including but not limited to those safety requirements involving work on elevated platforms), all forms of traffic regulations, public utility, Interstate and Intrastate Commerce Commission regulations, Workers' Compensation Laws, Public Construction Bond Act, Prevailing Wage Laws, Public Works Preference Act, Employment of Illinois Workers on Public Works Act, USA Security Act,federal Social Security Act (and any of its titles), and any other law, rule or regulation of the Illinois Department of Labor, Department of Transportation, Illinois Environmental Protection Act, Illinois Department of Natural Resources, Illinois Department of Human Rights,Human Rights Commission,EEOC,and the Village of Lemont. _ SECTION 30: ACKNOWLEDGEMENT. The undersigned hereby represent and acknowledge that they have read the foregoing Agreement,that they know its contents,and that in executing this Agreement they have received legal advice regarding the legal rights of the party on whose behalf they are executing this Agreement, and that they are executing this Agreement as a free and voluntary act and on behalf of the named parties. Villa:e of Lemont DaCott Energy Services,Ltd By: By: Name: li Name: Elia Streltsov Title: ea!, !(! r Title: Vice President Date: Mg r( qt 0.4 i!s Date: CONFIDENTIAL Village of Lemont March 5,2015 Page 7 of 8 DES DACOTT ENERGY SERVICES LETTER OF REPRESENTATION 1.Term Customer gives DaCott Energy Services, Ltd exclusive rights to collaborate with Retail Electric Providers(REP)on behalf of Customer.Exclusive right is defined for the purposes of this document,as the Customer will allow DaCott Energy Services, Ltd to coordinate electricity activities such as; collecting and evaluation existing contracts, soliciting quotes and contract negotiations to secure the highest quality electricity contract for Customer. 2.Independent Consultant It is the express intention of the parties that DaCott Energy Services,Ltd is independent and not an employee,joint venture or partner of Customer. DaCott Energy Services, Ltd shall retain the right to perform services for others during the term of this Agreement. 3.Proprietary and Confidential Information In the event either party discloses information to the other party that the disclosing party considers to be secret or proprietary and so notifies the receiving party, the receiving party agrees to hold such information in confidence and to treat it with at least the same degree of care and safeguards that the receiving party takes with its own confidential information.The confidentiality provisions hereof shall survive any termination of this Agreement for a period of two(2)years after such termination. 4.Governing Law/Venue This Agreement will be governed by and construed in accordance with the laws of the State of Illinois in Cook County. , ) Villa:e of Lemont DaCott Energy Services,Ltd By: Age/ By: Name: r"'r j,/ 'jm . , j.ii-r Name: Elia Streltsov Title: V/t , mkt '`-/TI)r, _ Title: Vice President Date: 'Moth.` l , 010 is Date: • CONFIDENTIAL Village of Lemont March 5,2015 Page 6 of 8 Attachment A Client agrees to the following fees for the DES services(to be included in energy costs from supplier): $0.00075 per kWh • it I it Initialed and accepted by: Client CONFIDENTIAL '