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HomeMy WebLinkAbout2002-137 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 2002- 137 Being a By-law to authorize a contract between the Corporation of the Municipality of Clarington and A.E. Sharp Limited, Willowdale, Ontario, to enter into an agreement for direct purchase of Natural Gas. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington with the Corporation Seal, a contract between, A.E. Sharp Limited,Willowdale, Ontario and said Corporation; and 2. THAT the contract attached hereto as Schedule "A"form part of this By-law. 16th September By-law read a first and second time this day of , 2002. 16th September By-law read a third time and finally passed this day of , 2 John Mullon yor P i L. r e, icipal Clerk 15/07/2002 Large Volume ABC Schedule "A" AGENCY AGREEMENT(Large Volume) Agency Billing and Collection Service THIS Agreement made as of the 24th of June 2002 BETWEEN: CORPORATION OF THE MUNICIPALITY OF CLARINGTON,("Customer") and A.E.SHARP,a Division of DYNEGY MARKETING INC.("Sharp") 2 Sheppard Ave E.,Suite 810 Willowdale,Ontario M2N 5Y7 Notice and Appointment of Agent: The Customer(as identified above)hereby confirms and provides notice to all interested parties(each a "Notified Party")that by executing this Agency Agreement it has entered into a contract appointing Sharp as its exclusive agent to enter into, manage and administer, on the Customer's behalf, all contracts necessary to arrange for the purchase and distribution (which term includes transportation,storage and delivery)of gas to the Service Address(as described in Schedule"A"attached hereto),as well as billing and collecting for these services. The Customer agrees that the terms and conditions of such contracts shall be binding on the Customer. Enrollment: The Customer authorizes and directs Sharp to enter into arrangements on behalf of the Customer with the natural gas distribution company for each Service Address(the"Distribution Company").The Customer approves the transfer from its current agent to Sharp. Direction: The Customer hereby requests, authorizes and directs the Distribution Company and any other Notified Party to release any and all information in such Notified Party's possession and control,relating to the Customer, and the supply and delivery of natural gas to each Service Address including, but not limited to, customer usage information, site usage history report for the past twelve(12)months, credit and payment history,consumption history,utility account number and account information to Sharp and acknowledges that such release may be subject to a fee in accordance with any terms and conditions of the Notified Party. Distribution Company Terms: The Customer confirms that Sharp has notified the Customer that the Customer may be bound by the terms, conditions and policies established by the Distribution Company for each Service Address and further confirms that the Customer will comply with such terms,conditions and policies. Reliance: Each Notified Party may deal exclusively with and rely on Sharp to make all arrangements on the Customer's behalf in connection with the supply and delivery of natural gas to each Service Address as if such arrangements had been made by the Customer. Billing and Fees: The Distribution Company will bill the Customer for the natural gas delivered to each Service Address and for certain distribution access charges and any other fees,charges or taxes relating to the delivery of natural gas delivered to such Service Address. A fee will be paid to Sharp in consideration of its services of$.001135/cubic meter which will be added to the cost of gas commodity and delivery. The Customer acknowledges that, at some point during the Term of this Contract, Sharp may bill the Customer directly for some or all of the costs associated with the supply and delivery of gas to the Service Address,provided that the Customer will not pay any additional costs as a result of Sharp billing the Customer directly. The Customer agrees to indemnify and save harmless Sharp from any costs or damages incurred by Sharp that are caused by the Customer. Sharp and the customer will mutually agree upon a pricing strategy that will be confirmed in writing by Sharp with a separate pricing confirmation.The price of natural gas under this service is not regulated by the Ontario Energy Board. Effective Date: The appointments and directions are effective as of the date of this Agency Agreement. Responsibility: The Customer confirms that it has the authority to enter into an agreement for the supply of natural gas to each Service Address and to appoint an agent for the delivery thereof to each Service Address. The Customer agrees to keep the payment of its natural gas account with the Distribution Company and Sharp up-to-date,to pay such accounts when due and to be bound by and responsible for the arrangements made by Sharp as agent on its behalf. The Customer has read the Contract and understands and agrees to be bound by the terms thereof. Term: This Contract is for a 3 year term commencing on the date of first deliveries as determined by the applicable LDC(the"Initial Term"). Conditions of Service: Sharp is under no obligation to provide any services or to continue to arrange for the supply of natural gas under this Agency Agreement in any of the following circumstances: C:IWINNT1Profileskb031Temporary Intemet FilesIOLKACIaington Gas LargeVolumeABCAgency_Agreement.DOC I5ll3.vl 15/07/2002 Large Volume ABC (a) if the Customer defaults on payment of its account; (b) upon written notice by Sharp, if Sharp is unable or is prevented from complying with any of the obligations it owes to the Distribution Company or if the Distribution Company is unable or is prevented from complying with any of the obligations it owes to Sharp; (c) if,as determined by Sharp,any:(i)amendment to applicable law,by-law, statute,regulation,rule,ordinance,policy,order,code,information letter, guideline, bulletin or directive; or (ii)judicial or regulatory order, requires, directs or makes desirable, directly or indirectly, that a material term be amended,inserted or deleted in this Agency Agreement and Sharp notifies the Customer that it wishes to renegotiate the terms and conditions of this Agency Agreement in connection with such amendment,insertion or deletion and the parties are unable to agree upon the revised terns and conditions of this Agency Agreement within 30 days of such notice; (d) if the Distribution Company no longer services the Service Address for any reason or takes any step to disconnect supply,other than as a result of an emergency or to facilitate repairs to the natural gas facilities; (e) if the Customer authorizes another natural gas supplier or Agent for the Service Address during the Term; (f) if any other natural gas supplier is appointed by the Distribution Company to supply natural gas to the Service Address during the Term due to an event of default affecting the Customer, (g) if this Agency Agreement or any part thereof is assigned without the consent of Sharp;or (h) if the Service Address is,at any time during the Term, no longer owned or occupied by the Customer or owned or occupied by any person other than the Customer without the consent of Sharp. Either party may give the other party additional warnings before it terminates this Agency Agreement. Scope of Agency:The Customer acknowledges that(a)Sharp is not a fiduciary of the Customer with respect to the purchase and sale of natural gas; and(b)the Customer has other alternatives to acquire natural gas. Further Assurances: The Customer agrees that it shall execute other documentation (including another agency agreement) if required by the Distribution Company in addition to or in substitution of this Agency Agreement. Natural Gas Imbalances. At any time during the Term,the Customer's actual or forecasted natural gas consumption may exceed or fall short of the forecasted Annual Volume as set out in Schedule A. The Distribution Company maintains an account which records the difference between the forecasted amount and the quantities of gas actually consumed(the"Balancing Gas Account"). The Distribution Company may require Sharp or the Customer to bring its Balancing Gas Account into balance. The Customer will reimburse Sharp for any and all costs incurred by Sharp(including charges imposed by the Distribution Company and any other costs incurred by Sharp)that are reasonably attributable to the Customer to bring the Balancing Gas Account into balance. Flow-Through Charges: The Customer hereby acknowledges that, in addition to all other amounts referenced herein, the Customer shall be responsible for and agrees to pay all charges, fees, assessments or allocations assessed by or through the Distribution Company against the Customer or Sharp as the result of the delivery of natural gas to the Service Address, matters incidental thereto and any act or omission of the Customer or of Sharp taken or omitted at the request of or on behalf of the Customer. Customer Indemnity: Customer agrees that it will indemnify and save harmless Sharp, its affiliates, the respective directors, officers, and employees,and the permitted assigns of Sharp and its affiliates(collectively,"Sharp and its Representatives")in full for any loss,damage,injury, liability or cost which any of Sharp and its Representatives,as applicable,suffers arising from,or incurs as a consequence of,any act or omission of Customer relating to the supply or delivery of natural gas to the Service Address including,without limitation to the foregoing,any claim resulting from any default or breach by the Customer,or any failure of the Customer to perform any obligation relating to the Contract or any obligation to any third party,including,but not limited to,any agreement with the Distribution Company. Assignment: Neither party shall assign or otherwise transfer any of its rights or obligations under the Contract without the prior written consent of the other. Such consent shall not be unreasonably withheld;provided however, Sharp may assign or otherwise transfer any or all of its rights or obligations under the Contract to its affiliates without the consent of the Customer. Other than with the consent of the other party or in the case of an assignment by Sharp to an affiliate,no assignment or transfer shall relieve the assignor or transferor of any of its obligations under the Contract. Confidentiality: The Customer shall not disclose the terms of any purchase and sale of natural gas under the Contract to a third party(other than the Customer's employees,counsel,accountants or consultants who have agreed to keep such terms confidential)except in order to comply with any applicable law,order,regulation,exchange rule or to effectuate transportation of the natural gas hereunder,provided,the Customer shall notify Sharp of any proceeding of which the Customer is aware which may result in disclosure and use reasonable efforts to prevent or limit the disclosure. Sharp shall be entitled to all remedies available at law or in equity to enforce,or seek relief in connection with,this confidentiality obligation. No Business Restrictions: The Customer understands and acknowledges that Sharp and its affiliates participate,or may participate,in numerous aspects of the natural gas market under a variety of roles and with varying interests. The Contract does not,in any way, preclude Sharp and its affiliates from pursuing any other business opportunities they may wish to pursue. C MINNT ftfiles11b Memporary Intemet FilaskOVAClanngton_Gas LargeVolumeABCAgency_Agreement.DOC 15113.v7 15/07/2002 Large Volume ABC No Waiver: No delay or omission by either party in exercising any right,power or remedy under the Contract shall be construed as a waiver of such right,power or remedy and any single or partial exercise shall not prevent any other or further exercise of the same or the exercise of any other right,power or remedy. Severance of Invalid Provisions: If and for so long as any provision of the Contract shall be deemed to be judged invalid for any reason whatsoever,such invalidity shall not affect the validity or operation of any other provision of the Contract except only so far as shall be necessary to give effect to the construction of such invalidity,and any such invalid provision shall be deemed to be severed from the Contract without affecting the validity of the balance of the Contract. Entire Agreement: The Contract and A.E. Sharp's letter of June 1 la',2002 (Natural Gas Procurement-Consulting Services)contains the entire agreement between the Customer and Sharp and it replaces any prior written or oral agreement between the parties concerning the supply or delivery of natural gas. There are no verbal representations,rights or obligations that are not contained in the Contract. The laws of Ontario and the laws of Canada applicable in Ontario shall govern the Contract. Execution: The Agency Agreement may be executed in multiple counterparts and by facsimile transmission,each of which shall be deemed an original and all of which shall constitute one instrument. Address for Notices: Any notice or other communication under the Contract shall be in writing and shall be delivered by courier,mail or facsimile to the Address for Notices set out below or to such other address as may be specified in writing by either party from time to time. A.E.SHARP LEMTED CORPORATION OF THE MUNICIPALITY OF CLARINGTON A Division of DYNEGY MARKETING INC.("Sharp") Suite 810 2 Sheppard Avenue East Willowdale,Ontario M2N 5Y7 Tel:416-733-2114 Fax:416-733-0650 Per: Per: Title: Title: C:IWINNT1Profiles\lbO31Temporary Intemet Fi6s10LOClarington-Gas LargeVolumeABCAgency_Agreement.DOC 15/07/2002 Large Volume ABC SCHEDULE "A" TO AGENCY AGREEMENT SERVICE ADDRESS INFORMATION The "Estimated Annual Volume" for each Service Address is specified below: Customer Name on Service Address Location Name Mailing Address Account Number Distribution Estimated Annual Volume Bill Company (cubic meters) C:IWINNT1Profiles1bO3\lemporery Internet Fi1es\0LK7\CWngton Gas LargeVokimeABCAgency_Agreerrient.DOC 15113.V1