HomeMy WebLinkAboutContract #: 1383 - From: 11-01-2020 To: 10-31-2024 - Direct Energy Marketing, Inc - Town Manager Direct Energy Business Marketing,LLC
DirectiAs* dlida Direct Energy Business
194 Wood Avenue South.Second Floor.Iselin.NJ 08830
KgEnergy Phone. 1.888-925-9116
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Marketer Name Wa ne Sim Date 5/22/2019 171me 2:51:29 PM
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Contact Name 'rw c!4 c Billing Address 1 gin 5L.North AnCover,
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This Transaction Confirmation confirms the terms of the Gas Transaction entered Into between Direct Energy Business Marketing,LLC dJbta Direct Energy Business
("Seiler"),and the customer above rBuyse or'Cus er")pursuant to the terns of the Commodity Master Agreement J between Buyer and Seller dated May
22,2019 as may be amended. The Purchase Price excludes Utility distribution charges and Taxes that area may be the responsibility of Buyer. Gas volumes will
be adjusted for Utilityline loss, whom appikable. The prim listed below are based on market conditions as of the time, stated above, that this Transaction
Confirmation was issued and may be adjusted by Seller to reflect market conditions as of the date it is executed and returned by Buyer.THIS TRANSACTION
CONFIRMATION WILL NOT BE EFFECTIVE UNTIL SIGNED BY BOTH PARTIES.
Service Locations Service Address Utility Acci Number Rate
(Additional pages may be See attached Exhibit A for details.
attached If necessary)
Delivery Period Begin Sunday,November 1,2020 End: Thursday,October 31,2024
The service start date hereunder will be the date that the LM14 enrolls Customer for Seller's service.Seller will request the Utility to
enroll Customer on the first meter read date within the Delivery Period.
Upon the expiration of the DeliveryPeriod,this Transaction shall continue for successive one month terms(collectively the'Renewal
Term")until either Party notifies the other Party in writing of Its Intention to terminate,at West 15 days pft to the end of the Delivery
Period or 15 days VW to the end of each successive month Renewal Tom.The termination date shag be the next effective drop date
permitted by the Utglty. All terms of the Agreement will remain In effect through the termination date as set by On applicable Utility.
During the Renewal Term,the Purchase Price for each successive month Renewal Term will be the then Market Price for delivery to
the Delivery Pant,unless otherwise agreed to in writing by the Parties.
Delivery Point BaystatalLAWR DCQ POOL
Contract Quantity(Dth) Buyer and Seller agree that the Contract Quantity purchased and received means a positive volume up to or greater than the
estimated quantities listed below,provided,that for purposes of determining whether a Material Usage Deviation has o=med and for
purposes of calculating Contract Quantities remaining to be delivered under Section 12 of the Agreement Contract Quantity shag be
determined by reference to the applicable estimated quantiy(' )listed below.
Daily Monthly
See Attached
Purchase Price
Fixed Price:$7.14610th
Bill Method type iDual
Special Provisions
Change in Utllly Account Numbers:
The acxount number for a Service Location shall be the Utility Account Number set forth in the Service Locations section above or as
attached,as applicable,or any replacement account number issued by the UMty from time to firne.
Fixed Price: The Purchase Price for the Contract Quantity,unless otherwise specifisid in this Transaction Confirmation 17.146 Nth.
Buyer acknowledges that it is acting for its own account and that It has made its own Independent decisions with raped to this
Transaction Confirmation and that Seller is not acting as a fiduciary,iary,financiall,investment or commodity WdN advisor for it in
connection with the negotiation and execution of this Transaction.
Full Plant Requirement—No GSA
Tax Exemption Status [ ] Non-Exempt
(_] Exempt(e. .Residential,Non ,Manufacturing,Small Business,Agricullutal, le, )
t exempt must attach certticals,
PLEASE SIGN AND RETURN THIS CONFIRMATION LETTER BY FACSIMILE TO 866-743.1038
BUYER:7kom of North Andover SELLER: Direct Energy Business Marketing,LLC
d/b/a Direct Energy Business
By: l./ By: �.....,,�
Print Name: Print Name: A�7 6z_
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Title: ° Title:
8t +3 Oo
Date: MR Date: 2019.05.23 11:17:56
Direct
Energy,,
Business
This Amendment constitutes the changes to the Commodity Master Agreement (®CMA") by and between Town of
North Andover and Direct Energy Business Marketing, LLC d/b/a Direct Energy Business effective 05/22/2019.
Any inconsistency in the Agreement shall be resolved by giving precedence in the following order of priority: (1) the
Transaction Confirmation(2)the Amendment and(3)the CMA.
Section 4 is amended as follows:
b. Section 4 is amended by deleting the second sentence and replacing it with the following: "Payment is due within
fft-five(55) days of the date of the invoice!
This Amendment shall be governed and construed in accordance with the governing law as indicated in the
Agreement. This Amendment constitutes the entire agreement and understanding of the Parties with respect to its
subject matter and supersedes all prior oral and written communication with respect thereto. The remaining terms
of the CMA are unchanged.
IN WITNESS WHEREOF, the Parties have executed this Amendment on the respective dates specified below with
effect as of the latest date specified in the signatures below(the"Effective Date")
Buyer.Town of North Andover Seller:Direct Energy Business Marketing,LLC
dVbla Direct Energy Business
Approved: 1,ff4 kvx� Approved:
Print Name: Y%A 40 Print Name:
Title:
LIC
Mark Taddeo
Date: Date:
2019 05 23 11-18-36
-05,00,
Law Department approved Amendment
Direct
Isli
Energy.
O1'i "sus
This Commodity Master Agreement ("CMA") among Direct Energy Business, LLC, Direct Energy
Business Marketing, LLC d/b/a Direct Energy Business (Collectively"Seller"), each a Delaware limited
liability company, and Town of North Andover("Buyer"or"Customer") (each a "Pa and collectively,
the "Parties") is entered into and effective as of 05/22/2019 .
1. Transactions:The terms of this CMA apply to all end-use sales of electric power("Electricity")and/or natural gas("Gas"}as
applicable (each a `Commodity"and collectively, the 'Commoditiesl, by the applicable Seller party to Buyer (each sale a
"Transaction") which will be memorialized in a writing signed by both Parties (each a 'Transaction Confirmation"), Each
Transaction Confirmation shall set forth the Seller party providing service to Customer for such Transaction. If a conflict arises
between the terms of this CMA and a Transaction Confirmation, the Transaction Confirmation will control with respect to that
particular Transaction. This CMA, any amendments to this CMA and related Transaction Confirmation(s) (together, a single
integrated,"Ag menf)is the entire understanding between Parties with respect to the Commodities and supersedes all other
communication and prior writings with respectthereto;no oral statements are effective.
2. Performance:The Parties"obligations under this Agreement are firm.Buyer is obligated to purchase and receive,and Seller
is obligated to sell and provide,the Contract Quantity of Commodity specified in a Transaction Confirmation In accordance with
the terms of this Agreement. Buyer will only use the Commodity at the listed Service Locations in the applicable Transaction
Confirmation and will not resell the Commodity or use it at other locations without Seller's prior written consent.
3. Purchase Price: Buyer will pay the Purchase Price stated in each Transaction Confirmation. If the Purchase Price
incorporates an index and the index is not announced or published on any day for any reason or if the Seller reasonably
determines that a material change in the formula for or the method of determining the Purchase Price has occurred, then the
Parties will use a commercially reasonable replacement price that is calculated by the Seller.If Seller concludes that a change
in any Law(s) increases Seller's costs,the Purchase Price may be adjusted by Seller to reflect such costs. "Law(s)" mean all
tariffs, laws, orders, rules, decisions, taxes, regulations, transmission rates, and Utility changes to Buyer's monthly capacity
and/or transmission obligations.
4. Billing and Payment: Seller will invoice Buyer for the Actual Quantity of Commodity and for any other amounts incurred by
Buyer under this Agreement. Payment is due within fifteen (15)days of the date of the invoice. if an invoice is issued and the
Actual Quantity cannot be verified by the time,the invoice will be based on Seller's good faith estimate of the Actual Quantity.
Seller will adjust Buyers account following (1) confirmation of the Actual Quantity, (II)any Utility discrepancy or adjustment or
(III) any other corrections or adjustments, including adjustments to, or re-calculation of,Taxes. Buyer will pay interest on late
payments at 1.5% per month or,if lower,the maximum rate permitted by law("Interest Ratel. Buyer is also responsible for all
costs and fees,including reasonable attorneys fees,incurred in collecting payment"Actual Quantity"means the actual quantity
of Commodity that is either delivered or metered, as applicable, to Buyers account. Wi means a state regulated entity
engaged in the distribution of Gas or Electricity.
5.Taxes:Buyer is responsible for paying any Taxes associated with the Actual Quantity of Commodity sold under this Agreement
that may become due at and after the Delivery Point. The Purchase Price does not include Taxes that are or may be the
responsibility of the Buyer, unless such inclusion is required by Law. Buyer will reimburse Seller for any Taxes that Seller is
required to collect and pay on Buyers behalf and will indemnify, defend and hold Seller harmless from any liability against all
Buyers Taxes.Buyer will furnish Seller with any necessary documentation showing its exemption from Taxes,if applicable,and
Buyer will be liable for any Taxes assessed against Seller because of Buyer's failure to timely provide or properly complete any
such documentation. "Taxes"means all applicable federal,state and local taxes,including any associated penalties and interest
and any new taxes imposed in the future during the term of this Agreement.Liabilities imposed in this Section will survive the
termination of this Agreement.
6. Disputes: If either Party in good faith disputes amounts owed under Sections 3,4,5 and 8,the disputing Party will contact
the non-disputing Party promptly and pay the undisputed amount by the payment due date.The Parties will negotiate in good
faith regarding such dispute for a period of not more than fifteen(1 ) Business Days. In the event the Parties are unable to
resolve such dispute,the disputing Party will pay the balance of the original invoice and either Party may exercise any remedy
available to it in law or equity pursuant to this Agreement In the event of a dispute other than for an invoiced amount,the Parties
will use their best efforts to resolve the dispute promptly.Actions taken by a Party exercising its contractual rights will not be
13 ®M vv"r 4.0—Fokuary 2019
construed as a dispute for purposes of this Section. 'Business Dar means any day on which banks are open for commercial
business in New York,New York;any reference to"day(s)"means calendar days.
7. Title and Risk of Loss: Title to, possession of and risk of loss to the Commodity will pass to Buyer at the Delivery Point
specified in the applicable Transaction Confirmation.
8. Buyers Usage Obligations
A.Material Usage Deviation:If there is a Material Usage Deviation,Buyer will be responsible for the losses and costs,including
the costs of obtaining and/or liquidating the applicable volume, based upon the difference between the applicable Contract
Quantity and Actual Quantity. Buyer will pay the amount of such losses and costs to Seller within fifteen(15)Business Days of
Seller's invoice. Material Usage Deviation'means any deviation in Actual Quantity at the Service Location(s) stated in the
related Transaction Confirmation from Contract Quantity (or, as applicable, estimated Contract Quantities) stated in that
Transaction Confirmation of+/-25%or more,which is not caused by weather..
B.Balancing Charges: For Transactions involving the purchase and sale of Gas only, Buyer will be responsible for Balancing
Charges unless Prior Notice of a material variation in usage is provided to Seller and actual usage is consistent with that Prior
Notice. 'Balancing Charges'means Utility fees, costs or charges and penalties assessed for failure to satisfy the Utifityb
balancing and/or nomination requirements. "Prior Notice"is defined as forty-eight(48)hours before the start of the Gas Day for
which the material variation in usage will apply. "Gas Dar means a period of 24 consecutive hours as defined by the Utility.
Buyer will make any payment due pursuant to this Section within five(5)Business Days of the date of Sellers invoice.
C.Curtailments: For Transactions involving the purchase and Sale of Gas only, if Buyer is directed by its Utility to curtail its
usage,in whole or in part,Buyer will curtail as directed.If Buyer fails to curtail as directed, Buyer will pay or reimburse Seller for
all Balancing Charges assessed by the Utility. Payment by Buyer of any Balancing Charges will be due within five(5)Business
Days of the date of Seller's invoice.
9. Force Majeure: A Party claiming Force Majeure will be excused from its obligations under Section 2 as long as it provides
prompt notice of the Force Majeure and uses due diligence to remove its cause and resume performance as promptly as
reasonably possible. During a Force Majeure, Buyer will not be excused from its responsibility for Balancing Charges nor from
its responsibility to pay for Commodity received. "Force Majeure"means a material,unavoidable occurrence beyond a Partys
control,and does not include inability to pay,an increase or decrease in Taxes or the cost of Commodity,the economic hardships
of a Party,or the full or partial closure of Buyers facilities,unless such closure itself is due to Force Majeure.
10. Financial Responsibility:Sellers entry into this Agreement and each Transaction is conditioned on Buyer,its parent,any
guarantor or any successor maintaining its creditworthiness during the Delivery Period and any Renewal Term.When Seller has
reasonable grounds for insecurity regarding Buyers ability or willingness to perform all of its outstanding obligations under any
agreement between the Parties, Seller may require Buyer to provide adequate assurance,which may include, in the Sellers
discretion, security in the form of cash deposits, prepayments, letters of credit or other guaranty of payment or performance
('Credit Assurance").
111. Default: "Default" means: (1)failure of either Party to make payment by the applicable due date and the payment is not
made within three(3)Business Days of a written demand;(11)failure of Buyer to provide Credit Assurance within two(2)Business
Days of Sellers demand; (1111)either Party,its parent or guarantor, becomes Bankrupt or fails to pay its debts generally as they
become due;(1v)failure of a Party to satisfy any of its representations and warranties;or(y)failure of a Party to fulfill its material
obligations. The Parties will have 15 Business Days following written demand to cure any failures under(iv)or(v),provided that
no cure period or demand for cure applies to a default arising under(iii)or any early termination of this Agreement. "Bankrupt'
means an entity(a)files a petition or otherwise commences,authorizes or acquiesces in the commencement of a proceeding or
cause of action under any bankruptcy, insolvency, reorganization or similar law,or has any such petition filed or commenced
against it,(b)makes an assignment or any general arrangement for the benefit of creditors, (c)otherwise becomes bankrupt or
insolvent,however evidenced, (d)has a liquidator,administrator, receiver,trustee, conservator or similar official appointed with
respect to it or any substantial portion of its property or assets,(e)has a secured party take possession of all or any substantial
portion of its assets or(Q is dissolved or has a resolution passed for its winding-up, official management or liquidation (other
than pursuant to a consolidation,amalgamation or merger.
12. Remedies: In the event of a Default,the non-defaulting Party may:(1)withhold any payments or suspend performance;(Ii)
upon written notice, provided that no notice is required with respect to Section 11(iii)or a breach of Section 13A(c), accelerate
any or all amounts owing between the Parties and terminate any or all Transactions and/or this Agreement; (Ili) calculate a
settlement amount by calculating all amounts due to Seller for Actual Quantity and the Close-out Value for each Transaction
being terminated;and/or(14)not or aggregate,as appropriate,all settlement amounts and all other amounts owing between the
Parties and their affiliates under this Agreement and other energy-related agreements between them and their affiliates,whether
or not then due and whether or not subject to any contingencies, plus costs incurred, into one single amount("Net Settlement
unC)® Any Net Settlement Amount due from the defaulting Party to the non-defaulting Party will be paid within three (3)
DEB—CMA—Vers"an 4.0.yeb-ary 2018
Business Days of written notice from the non-defaulting Party. Interest on any unpaid portion of the Net Settlement Amount will
accrue daily at the Interest Rate.mClose-out Value"is the sum of(a)the amount due to the non-defaulting Party regarding the
Contract Quantifies (or, as applicable, estimated Contract Quantifies) remaining to be delivered as stated in the applicable
Transaction Confirmation(s) during the Delivery Period or, if applicable, the current Renewal Term, calculated by determining
the difference between the Purchase Price and the Market Price for such quantities;and(b)without duplication,any net losses
or costs incurred by the non-defaulting Party for terminating the Transacfion(s),including costs of obtaining,maintaining and/or
liquidating commercially reasonable hedges, Balancing Charges and/or transaction costs. 'Market Price"means the price for
similar quantities of Commodity at the Delivery Point during the Delivery Period or Renewal Term,as applicable. For purposes
of determining Close-out Value, (1) Market Price will be determined by the non-defaulting Party in good faith as of a date and
time as close as reasonably practical to the date and time of termination or liquidation of the applicable Transaefion(s),and(11)
Market Price may be ascertained through reference to quotations provided by recognized energy brokers or dealers, market
indices, bona-fide offers from third-parties,or by reference to commercially reasonable forward pricing valuations.The Parties
agree that the Close-out Value constitutes a reasonable approximation of damages, and is not a penalty or punitive in any
respect. Seller may,but need not,physically liquidate a Transaction or enter into a replacement transaction to determine Close-
out Value or Net Settlement Amount. The defaulting Party is responsible for all costs and fees incurred for collection of Net
Settlement Amount including,reasonable attorneys fees and expert witness fees.
13. Representations and Warranties: Each of the following are deemed to be repeated each time a Transaction is entered
into:
A.Each Party represents that:(a)it is duly organized,validly existing and in good standing under the laws of the jurisdiction of
its formation and is qualified to conduct its business in those jurisdictions necessary to perform to this Agreement; (b) the
execution of this Agreement is within its powers,has been duly authorized and does not violate any of the terms or conditions in
its governing documents or any contract to which it is a party or any law applicable to it;and(c)it is not Bankrupt.
S. Buyer represents and warrants that: (a) it is not a residential customer, (b) it will promptly notify Seller of any merger or
acquisition of Buyer where Buyer will not be the surviving legal entity; (c)execution of this Agreement initiates enrollment and
service for the Delivery Period and any Renewal Term; (d) no communication, written or oral, received from the Seller will be
deemed to be an assurance or guarantee as to any results expected from this Agreement(9)If it is executing this Agreement
in its capacity as an agent,such Party represents and warrants that it has the authority to bind the principal to all the provisions
contained herein and agrees to provide documentation of such agency relationship,and(f)(1)it will provide,to Seller,information
reasonably required to substantiate its usage requirements, including information regarding its business, locations, meter/
account numbers,historicallpmjected usage,time of use,hours of operation,utility rate classes,agreements,schedules,which
in substantial part form the basis for the calculation of charges for the transactions hereunder, (h) acceptance of this
Agreement constitutes an authorization for release of such usage information; (iii) it will assist Seller in taking all actions
necessary to effectuate Transactions,including,if requested,executing an authorization form permitting Seller to obtain its usage
information from third parties;and(iv)the usage information provided is true and accurate as of the date furnished and as of the
effective date of the Agreement.
C. Each Party acknowledges that: (a) this Agreement is a forward contract and a master netting agreement as defined in the
United States Bankruptcy Code(Code");(b)this Agreement shall not be construed as creating an association,trust,partnership,
or joint venture in any way between the Parties, nor as creating any relationship between the Parties other than that of
independent contractors for the sale and purchase of Commodity;(c)Seller is not a"utility'as defined in the Code;(d)Commodity
supply will be provided by Seller under this Agreement,but delivery will be provided by the Buyer's Utility;and(9)Buyers Utility,
and not Seller,is responsible for responding to leaks or emergencies should they occur.
14.Other:
(a)This Agreement, and any dispute arising hereunder, is governed by the law of the state in which the Service Locations are
located, without regard to any conflict of rules doctrine. (b) Each Party waives its right to a jury Mal regarding any litigation
arising from this Agreement. (c) No delay or failure by a Party to exercise any fight or remedy to which it may become entitled
under this Agreement will constitute a waiver of that right or remedy. (d)Seller warrants that(1)it has good file to Commodity
delivered,(ii) it has the right to sell the Commodity,and (iii)the Commodity will be free from all royalties, liens,encumbrances,
and claims. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR ANY PARTICULAR PURPOSE,ARE DISCLAIMED. (e) Buyer will be responsible for and indemnify Seller
against all losses,costs and expenses, including court costs and reasonable attorney's fees,arising out of claims for personal
injury,including death,or property damage from the Commodity or other charges which attach after title passes to Buyer. Seller
will be responsible for and indemnify Buyer against any losses, costs and expenses, including court costs and reasonable
aftomeys'fees, arising out of claims of fide,personal injury, including death,or property damage from the Commodity or other
charges which attach before title passes to Buyer. (f) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THE
DER,_Ch1A_Vwsion 4.0-February 2019
AGREEMENT FOR CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, LOST PROFITS OR SPECIFIC
PERFORMANCE, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.(g)All notices and waivers will be made in
writing and may be delivered by hand delivery,first class mail (postage prepaid),overnight courier service or by facsimile and
will be effective upon receipt; provided, however,that any termination notice may only be sent by hand or by overnight courier
service, and, if sent to Seller, a copy delivered to: Direct Energy Business, Attn: Customer Services Manager, 1001 Liberty
Avenue,Pittsburgh,PA 15222,Phone:(888)925-911 ;Fax:(866)421-0257;Email:CustomerRelations@directenergy.com.(h)
If Buyer and Direct Energy Business Marketing, LLC entered into Commodity transactions prior to the execution of this
Agreement("Existing Transactions"),the Parties agree that these Existing Transactions shall be Transactions governed under
the terms of this Agreement. This Agreement supersedes and replaces any other agreement that may have applied to the
Existing Transactions. Note that this subsection (h)shall not apply to any Commodity transactions or agreements entered into
between Buyer and Direct Energy Business, LLC (i) No amendment to this Agreement will be enforceable unless reduced to
writing and executed by both Parties. Q)Seller may assign this Agreement without Buyer's consent. Buyer may not assign this
Agreement without Seller's consent;which consent will not be unreasonably withheld. In addition,Seller may pledge,encumber,
or assign this Agreement or the accounts, revenues, or proceeds of this Agreement in connection with any financing or other
financial arrangements without Buyer's consent;in which case Seller shall not be discharged from its obligations to Buyer under
this Agreement. (k)This Agreement may be executed in separate counterparts by the Parties, including by facsimile,each of
which when executed and delivered shall be an original,but all of which shall constitute one and the same instrument. (1)Any
capitalized terms not defined in this CMA are defined in the Transaction Confirmation or shall have the meaning set forth in the
applicable Utility rules,tariffs or other governmental regulations,or if such term is not defined therein then it shall have the well-
known and generally accepted technical or trade meanings customarily attributed to it in the natural gas or electricity generation
industries,as applicable.(m)The headings used in this Agreement are for convenience of reference only and are not to affect
the construction of or to be taken into consideration in interpreting this Agreement.(n)Any executed copy of this Agreement and
other related documents may be digitally copied, photocopied,or stored on computer tapes and disks ("Imaged Agreement").
The Imaged Agreement will be admissible in any judicial,arbitration,mediation or administrative proceedings between the Parties
in accordance with the applicable rules of evidence; provided that neither Party will object to the admissibility of the Imaged
Agreement on the basis that such were not originated or maintained in documentary form. (o)Where multiple parties are Party
to this Agreement with Seller and are represented by the same agent,it is agreed that this Agreement will constitute a separate
agreement with each such Party,as if each such Party had executed a separate Agreement,and that no such Party shall have
any liability under this document for the obligations of any other Parties® (p)This CMA may be terminated by either Party upon
at least thirty(30)days'prior written notice;provided,however,that this CMA will remain in effect with respect to Transactions
entered into prior to the effective date of the termination until both Parties have fulfilled all of their obligations with respect to the
outstanding Transactions. (q)Buyer will not disclose the terms of this Agreement,without prior written consent of the Seller,to
any third party, other than Buyer's employees, affiliates, agents, auditors and counsel who are bound by substantially similar
confidentiality obligations,trading exchanges,governmental auftrifies, courts, adjudicatory proceedings, pricing indices, and
credit ratings agencies; provided that if Buyer receives a demand for disclosure pursuant to court order or other proceeding, it
will first notifyy Seller,to the extent practicable,before making the disclosure.
IN WITNESS WHEREOF,this CMA is entered into and effective as of the date written above.
Town of North Andover
BUYER. SELLER:Direct Energy Business, LLC
Direct Energy Business Marketing,LLC
By: 14 YPA By.,
Name: yZP S'a al
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Title: Title„ Mark Taddeo
2019.05.23 11.18:54
-05'00'
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