Electricity Purchase and Sale Terms and Conditions
The City of Chicago (“City”), pursuant to the aggregation authority conferred upon it by referendum and ordinance, selected Integrys Energy Services, Inc. (“Seller”) to supply the City’s aggregation program (“Aggregation”), and entered into a Power Supply Agreement with Seller (“Program Agreement”). While Buyer’s accounts were ineligible for opt-out Aggregation or chose not to participate in the opt-out Aggregation, Buyer desires to enroll into the Aggregation rate on an opt-in basis. Seller and Buyer (individually referred to as “Party” and collectively as “Parties”) agree to the following Electricity Purchase and Sale Terms and Conditions (“Agreement”), as of the date agreed to by Buyer electronically if Buyer has agreed on Seller’s website or telephonically if Buyer has agreed during the telephonic enrollment process (the “Effective Date”):
1. Term: This Agreement shall become binding on the Effective Date, provided however, the obligation of Seller to sell and schedule electricity for delivery to Buyer and the obligation of Buyer to purchase, take and pay for electricity is contingent upon: (i) successful enrollment by Commonwealth Edison (the “Utility”), (ii) Buyer’s utility accounts (“Accounts”) being located within the jurisdictional boundaries of the City and being of a residential or small commercial (Watt-Hour or 0-100 kW) rate class, and (iii) the passage of the Rescission Period (defined in Section 2) without effective cancellation by Buyer. Successful enrollment by the Utility is dependent upon (1) the eligibility of Buyer’s Accounts, as determined by the Utility, to take from a retail electric supplier and to participate in the Utility’s purchase of receivables program (including service class and past payment history), and (2) the accuracy and completeness of any information submitted by Buyer electronically on Seller’s website or telephonically during the telephonic enrollment process. Subject to the foregoing, service will commence on the first meter read dates following successful enrollment and shall remain in effect through the May 2015 meter read (“Initial Term”), unless terminated pursuant to the terms of this Agreement.
2. Rescission Period: If Buyer is a Residential or Small Commercial Customer, Buyer may rescind this Agreement by contacting Seller before Seller submits the enrollment request to the Utility. If Buyer is a Residential or Small Commercial Customer, Buyer may rescind the Agreement and the pending enrollment within 10 calendar days after the Utility processes the enrollment request by contacting (i) Seller or the Utility, if Buyer is a residential customer or (ii) Seller, if Buyer is a Small Commercial Customer. If Buyer is a Medium Commercial Customer, Buyer shall not have a right to rescind. “Residential Customer” means a customer who receives electric service for household purposes distributed to a dwelling of 2 or fewer units which is billed under a residential rate or electricity service for household purposes distributed to a dwelling unit or units which is billed under a residential rate and is registered by a separate meter for each dwelling unit. “Small Commercial Customer” means a non-residential customer consuming an annual aggregate of 15,000 kWh or less in the Utility’s service area. “Medium Commercial Customer” means any non-residential customer other than a Small Commercial Customer.
a. Fixed Rate: For the Initial Term, Buyer shall pay the applicable Fixed Rate multiplied by the billing cycle usage for the Account(s). From the start of the Initial Term through the May 2014 meter read, the Fixed Rate is 5.589¢ per kWh. No later than 30 days prior to the May 2014 meter reads, Seller shall send Buyer notice of any changes to this Agreement and the new Fixed Rate applicable for the May 2014 meter reads through the end of the May 2015 meter reads that will have been negotiated with the City pursuant to the Program Agreement, provided however, if no such price is agreed upon by the City and Seller then Seller reserves the right to terminate this Agreement effective with the May 2014 meter reads with notice to Buyer. Both Parties recognize that components of the Fixed Rates include electric tariff charges that are authorized by the Illinois Commerce Commission, PJM, the Federal Energy Regulatory Commission, and/ or any other state or governmental agency having jurisdiction. Any increase in these charges after the Effective Date may be directly passed through to Buyer by a corresponding increase in the applicable Fixed Rate. In addition, Seller reserves the right to increase the Fixed Rate as a result of (i) costs associated with the City’s requiring of Seller’s receipt of assignment of certain bilateral agreements pursuant to the Program Agreement and (ii) costs associated with the City’s required reimbursement of administrative fees, enhanced environmental costs or other program costs pursuant to the Program Agreement.
b. Switching Fees: While Seller does not charge Buyer a separate fee to switch to Seller’s service, if Buyer is currently receiving electricity pursuant to an agreement with an alternative retail electric supplier, that supplier may charge Buyer for switching electricity providers. If the Utility charges a fee for enrolling the Account to Seller’s service, Seller will reimburse Buyer for any such fees.
c. Price Match: If the Program Price to Compare is set below the Fixed Rate during the Initial Term of this Agreement only, Seller shall either (i) reduce the Fixed Rate to match the Program Price to Compare or (ii) terminate this Agreement. “Program Price to Compare” shall mean (1) the Utility’s “Price to Compare” for the single family, non-space heating class, as posted on the ICC website (www.pluginillinois.org) (which includes the Utility’s electric supply charge, plus the Utility’s transmission services charge but not distribution charges or the purchased electricity adjustment) plus (2) costs associated with the City’s requiring of Seller’s receipt of assignment of certain bilateral agreements and costs associated with the City’s required reimbursement of administrative fees, enhanced environmental costs or other program costs, all pursuant to the Program Agreement. Seller shall not be required to match if the Utility’s Price to Compare ceases to exist or becomes a market-based rate as a result of a regulatory action. If Seller terminates this Agreement pursuant to this section 3(c), Seller shall not be liable for any damages or penalties resulting from Buyer’s return to the Utility’s service or to another retail supplier, including claims relating to the price received from the Utility or the alternate supplier being higher than the Fixed Rate herein.
a. New Term: If the City and Seller agree to renewal terms, between 30 and 60 days prior to the end of the Initial Term or a Renewal Term (whichever is
in effect, hereinafter the “Current Term”), Seller may send Buyer an offer for a Renewal Term. This offer will include, without limitation, the new pricing, any applicable early termination fees, and the Renewal Term (“Offer”). In the event Seller does not receive Buyer’s rejection of the Offer within 14 days, the Offer will be deemed accepted by Buyer without the need for further signature or other affirmative action by Buyer. If Buyer rejects the Offer in the manner directed in the Offer, Buyer’s Accounts will be returned to Utility service at the end of the Current Term.
b. Billing Cycle-to-Billing Cycle: If the City and Seller do not agree to renewal terms but agree that Seller may continue to serve on a billing cycle-to-billing cycle basis, service to the Accounts will continue on a billing cycle-to-billing cycle basis at a rate at or below the Price to Compare until (a) the City provides 30 day notice of termination on behalf of Buyer or (b) Buyer provides notice of termination.
c. No Renewal: If the City and Seller do not agree to renewal terms and do not agree that Seller will continue to serve on a billing cycle-to-billing cycle basis, Buyer’s Accounts shall be returned to the Utility at the end of the Current Term.
5. Billing and Payment: Buyer will be invoiced for Seller’s charges and the Utility’s delivery charges by the Utility on the invoice(s) Buyer receives from the Utility, and such billing and payment shall be subject to the applicable Utility rules regarding billing and payment procedures. Seller’s charges or credits not invoiced through the Utility shall be invoiced or credited, respectively, directly by Seller. Seller may cause the Utility to correct previous invoices in the event of invoicing errors.
6. Taxes: Any tax levied against Seller by any governmental entity, exclusive of Seller’s income tax or taxes levied on Seller’s real or personal property that must be paid by Seller shall be passed through to and borne and reimbursed by Buyer. Buyer must provide Seller with any applicable exemption certificates. Buyer shall pay any such taxes unless Seller is required by law to collect and remit such taxes, in which case Buyer shall reimburse Seller for all amounts so paid.
7. Termination; Remedies: Notwithstanding anything to the contrary herein, in the event the City terminates the Program Agreement prior to the end of a Current Term of this Agreement, the City may terminate this Agreement on behalf of Buyer. Upon any such termination, SELLER SHALL NOT BE LIABLE FOR ANY DAMAGES OR PENALTIES RESULTING FROM THE RETURN OF BUYER’S ACCOUNT(S) TO THE UTILITY’S SERVICE, INCLUDING CLAIMS RELATING TO THE UTILITY’S PRICE BEING HIGHER THAN THE FIXED RATE HEREIN. If Buyer defaults on its obligations under this Agreement (which may include Buyer’s switching to another electric supplier or the Utility or Buyer’s failure to pay the Utility), Seller may terminate this Agreement, as applicable. Buyer may also terminate at any time, regardless of whether Seller has defaulted. There shall be no fees due from either Party to the other for early termination.
8. Limitations: ALL ELECTRICITY SOLD HEREUNDER IS PROVIDED “AS IS”, AND SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT, WHETHER IN AGREEMENT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES.
9. Force Majeure: Except for Buyer’s obligation to pay Seller timely, neither Party shall be liable to the other for failure to perform an obligation if the non- performing Party was prevented from performing due to an event beyond the reasonable control, that could not be remedied by the exercise of due diligence and that was not reasonably foreseeable, including without limitation, acts of God, a condition resulting in the curtailment of electricity supply or interruption or curtailment of transmission on the electric transmission and/or distribution system, interruption of Utility service, terrorist acts or wars, and force majeure events of the Utility or independent system operator.
10. Questions, Complaints and Concerns: Buyer may contact Seller at the locations indicated below. For issues concerning this Agreement, Seller will attempt to resolve the matter within five (5) business days after receiving the call or letter. If Buyer is not satisfied with the response, or to obtain consumer education materials, Buyer can contact the Illinois Commerce Commission’s Consumer Services Division as described below. Buyer may also contact the Illinois Attorney General’s Office at 1-800-386-5438 (Northern Illinois), 1-800- 243-0618 (Central Illinois), or 1-800-243-0607 (Southern Illinois).
11. Miscellaneous: This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without regard for the conflicts of law provisions thereof. Title, possession, control of the electricity, and risk of loss will pass from Seller to Buyer at the delivery point, which shall be the Utility. Buyer appoints Seller as its agent for the purposes of effectuating delivery, including for receipt of billing and usage data from the Utility. Subject to regulatory approvals and notice from Seller, Seller may assign this Agreement without Buyer’s consent. Buyer may assign this Agreement only with Seller’s prior written consent. This Agreement (including without limitation the Account identification and other Account information identified by Buyer during the electronic or telephonic enrollment process) shall be considered a Letter of Agency and constitutes the entire agreement between the Parties, superseding all verbal and written understandings. There are no third party beneficiaries to this Agreement and none are intended. This Agreement shall only be amended in writing signed by both Parties or with Notice from Seller to Buyer as described under Sections 3 and 4 above. Buyer should contact the Utility in the event of an electric emergency at 1-800-Edison-1 (Residential) or 1-877-4-ComEd-1 (Small or Medium Commercial). Future correspondence may be sent by Seller to Buyer via first class mail and/or electronic mail.