R-12-15 Resolution Approving a Consulting Agreement with DaCott Energy Services, Ltd. Resolution No.R . 0,-,9 I
A Resolution Approving a Consulting Agreement with DaCott Energy Services,Ltd.
WHEREAS, the President and Board of Trustees desire to enter into a Consulting
Agreement with DaCott Energy Services, Ltd., substantially in the form attached hereto as
Exhibit A;
BE IT RESOLVED by the Village President and Board of Trustees of the Village of
Lemont as follows:
SECTION ONE: The foregoing findings and recitals, and each of them, are hereby
adopted as Section One of this Resolution and are incorporated by reference as if set forth verbatim
herein
SECTION TWO: The Village Administrator is authorized to execute the Consulting
Agreement attached hereto as Exhibit A, to make minor changes to the document prior to
execution which does not materially alter the Village's obligations, and to take any other steps
necessary to carry out this Resolution.
SECTION THREE: 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 #7 day of_YriMak , 2015.
PRESIDENT AND VILLAGE BOARD MEMBERS:
AYES: NAYS: ABSENT: ABSTAIN
Debby Blatzer ✓
Paul Chialdikas
Clifford Miklos ✓
Ron Stapleton
Rick Sniegowski
Jeanette Virgilio ✓
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mei°
B • AN ' 41
'resident
A ES :
A
CHARLENE M. SMOLLEN
Village Clerk
#633563 2
EXHIBIT A
Consulting Agreement with DaCott Energy Services, Ltd.
#633563 3
0 DACOTT
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.
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March 5,2015
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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
1 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
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March 5,2015
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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 fide 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 uests
General or a court of competent jurisdiction. DES agrees to defend, indemnify and hold arm a sllthe 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:LIABILITY 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
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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.
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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 ILCS 10/1-101 et seq.,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: _,.Lemont DaCott Energy Services, Ltd
By: �I
By:
Name: e/ ENEN r Name: Ella Streltsov
•Title: / / �j ,�IA I MIX Title: Vice President
Date: Ilka J L cu)i J/ Date: 3/Z e/ /IS
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DES
40 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•.- of Lemont DaCott Energy Services,Ltd
By: 4)„,/...'
By:Name: rr /jf S 4 4 i r' Name: Elia_Streltssov
Title: VI(laG 'Yt IN54m.�"'
�/� �/' 1 r Title: Vice President /
Date: I V 1 64 (' j /5 Date: 3 /Z 4/ 1/S
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Attachment A
Client agrees to the following fees for the DES services(to be included in energy costs from supplier):
$0.00075 per kWh
Initialed and accepted:: •
Client
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DES:
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March 5,2015
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CONFIDENTIAL