HomeMy WebLinkAbout2002-194 .
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW 2002- 194
Being a By-law to authorize a contract between the
Corporation of the Municipality of Clarington and AE Sharp
Limited, Willowdale Ontario, to enter into agreement for
Consulting Services for direct purchase of Natural Gas for a
two year term.
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 and seal with the Corporation Seal, a
contract between, AE Sharp Limited, Willowdale, Ontario, and said Corporation;
and
2. THAT the contract attached hereto as Schedule "A"form part of this By-law.
By-law read a first and second time this 25day of Novemb2u02.
By-law read a third time and finally passed this 25iay of Nove, X52
0/
John utto. j jayor
4.045,3 00 '-'-'
atti acne, ■ nicipal Clerk
24/02/2003 Version 2
AGENCY AGREEMENT (Large Volume)
Agency Billing and Collection Service
THIS Agreement made as of the 31 n of October 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
Description of Services:Sharp hereby agrees to provide services for the Customer,including,but not limited to the following: administer and
monitor(load balance)all Direct Purchase Agreements with Gas Utility,manage and nominate all transportation agreements on behalf of the
Customer,provide gas comparison reports as preferred by the Customer,provide weekly market price reports,develop a buying strategy to procure
supply,provide advice regarding gas supply,pricing options,portfolio composition and market timing to the Customer,keep the Customer fully
informed on all actions taken pursuant to this agreement,carry out,in all respects,the Customer's instructions with respect to negotiations,and keep
the customer informed of current market conditions.
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 the Customer had made such arrangements.
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$0.03/GJ($0.001135/m3) during first year and $0.04/GJ($0.001512/m3) during the second
year, 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 Ontario Energy Board does not regulate _
the price of natural gas under this service.
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Pricing Strategy: 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. All negotiations by Sharp on behalf
of the customer shall be conducted in accordance with such pricing strategy, terms and conditions as are specified by the Customer from time to
time.
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 2 year term commencing November 1,2002 through October 31,2004.
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:
(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 terms 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.
Event of Default:As used in this Agreement,an Event of Default is any one or more of following occurrences:
(a)Failure by any Party to comply with any material term of this Agreement,which failure has not been cured within sixty(60)days of the non-
performing Party's receipt of written notice thereof,
(b)Institution of proceedings in a court of competent jurisdiction for the reorganization,liquidation or involuntary dissolution of a Party,or for its
adjudication as a bankrupt or insolvent, or the appointment of a receiver of the property of the Party,and said proceedings are not dismissed,and
any receiver,trustee or liquidator appointed therein discharged,within sixty(60)days after the institution of said proceedings;
(c)The voluntary filing of any proceeding for liquidation,dissolution or adjudication of a Party as a bankrupt.
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.
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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.
Party Indemnity: Both parties agree that they will indemnify and save harmless each other, its affiliates, the respective directors, officers, and
employees,and the permitted assigns of each party and its affiliates in full for any loss,damage,injury,liability or cost which any of the parties and
its Representatives,as applicable,suffers arising from,or incurs as a consequence of,any act or omission of the other party 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 either
party,or any failure of either party 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.Indemnification under this section shall not be available with respect to any Claim to the extent
any Claim results from the action or failure to act of a third party that is not under the control of the indemnifying party.
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 inequity 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.
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 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 LIMITED CORPORATION OF THE MUNICIPALITY OF CLARINGTON
A Division of DYNEGY MARKETING INC.("Sharp") ("Customer")
Suite 810
2 Sheppard Avenue East 40 Temperance Street
Willowdale,Ontario Bowmanville,Ontario
M2N 5Y7 L1C 3A6
Tel:416-733-2114 Tel:905-623-3379 x 268
Fax:416-733-0650 Fax:905-62 -
Per: Per:
Title: Title:
Per:
Titl : Mu c a lerk
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AGENT APPOINTMENT LETTER
TO: ENBRIDGE CONSUMERS GAS
FROM: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
(The"Gas User")
For valuable consideration, the Gas User hereby appoints A.E. SHARP a Division of Dynegy
Marketing Inc. (the "Agent") as the exclusive agent of the Gas User for those locations listed
below for purposes of any and all matters relating to the supply, transportation, delivery or billing
of natural gas including Agent Billing and Collection T-Service(the"Arrangements")through
Enbridge Consumers Gas ("Enbridge") including, without limitation, the negotiation,
establishment, documenting, implementation, operation, performance, amendment and
termination of the Arrangements and any related or incidental matters. The Agent is also
authorized to appoint any person, firm or corporation as an agent of the Gas User having any or
all of the power and authority, which the Agent is acknowledged to have in this document.
Enbridge shall be entitled to rely upon any act or thing done, or document
executed, by the Agent in connection with or arising out of the Arrangements and all matters
relating or incidental thereto in the same manner and as though such act or thing had been done,
or such document had been duly executed, by the Gas User.
The foregoing provisions of this document shall be binding on the Gas User and its successors
and shall inure to the benefit of Enbridge and its successors and shall continue in effect until
written notice of termination of the arrangements set out herein is received by Enbridge from the
Gas User, provided that no act or thing done, or document executed, by the Agent prior to the
receipt of any such notice of termination shall be affected by such notice.
The Gas User agrees that it is responsible for the purchase of gas delivered to
each of the following locations:
Account Number Billing Name Service Address
This document shall be effective on and from the date set out below and shall be
governed by the laws of Ontario.
DATED the day of 2002.
Gas User; , r`i
Signature: c/s Signatur
( uthorized Signing Officer) (Autho zed gnin Off tcQr)
Name: John Mutton Name: Patti' L. 'Barrie
Title: Mayor Title: Municipal''Clerk`
Aesl/clientservices/forms and contracts/aal base
Created on 2/24/2003
SCHEDULE A
Company ID: EMIL
Estimated
Postal Current Volume
Address City Province Code Account Number Company Name DPA (m'/yr)
3289 Trulls Road Courtice ON L1 E 21-2 044589328904 Municp Of Clarington 62433 13288.00
132 Church Street Bowmanville ON L1C 1T5 054530108010 Police Building 62433 31746.00
181 Liberty Street Bowmanville ON L1 C 2M2 054530528112 Municip Of Clarington 62433 2139.00
49 Liberty Street North Bowmanville ON L1 C 21-8 054530554814 Newcastle Fitness Ctre 62433 139145.00
37 Silver Street Bowmanville ON L1 C 3C4 054530842711 Town Of Newcastle/Museum 62433 8112.00
40 Temperance Street Bowmanville ON L1 C 3A6 054530884845 Corporation Of Newcastle 62433 44578.00
33 Lake Road Bowmanville ON L1 C 3K3 054531993314 Munic Of Clarington 62433 31336.00
2950 Courtice Road Courtice ON LIE 21-18 054550295011 Corp Muncipof Clarington 62433 202420.00
2430 Highway Bowmanville ON L1C 3K7 054580422515 Clarington Fire Dept 62433 26095.00
247 King Street East Newcastle ON 1-113 11-14 54510706613 Fire Station#2 62433 10138.00
373 Beaver Street South Newcastle ON 1-113 1C3 54510783416 Town Of Newcastle 62433 6220.00
2440 Highway 2 p / Bowmanville ON 745765509994 Bowmanville Arena 62433 206657.00
to(a.+ti..17UKM• 'Ivr..,P`�.� o n
f 721,874.00
Gas User: TC MPALITY OF CLARINGTO
Signature: c/s Signature:
Name: John Mutton Name: Pat L. Barrie
Title: Mayor Title: Municipal Clerk
r p
A division of Seminole Canada Gas Company
Authorization to Purchase TCPL Turn back capacity
Recently Enbridge Gas Distribution Inc. announced that it will allow all customers who have, or will
have an executed Ontario T —Service Direct Purchase Agreement (DPA) on November 1, 2003 to
turnback up to 100% of their TCPL FT capacity at the Central Delivery Area ("CDA") effective
November 1,2003
AE Sharp believes this is an excellent opportunity to reduce your overall cost of natural gas, we are
currently aggregating our client portfolio to take advantage of volumetric purchasing.
By executing this Authorization, AE Sharp is hereby authorized to purchase, on your behalf as agent,
100% of your CDA eligible Ontario deliveries for a term of up to two years. This supply of natural gas
will initially be priced at Canadian Gas Price Reporter ("CGPR") AECO Daily index plus the basis
differential between AECO and the CDA. The basis differential shall be purchased at a price that will
not exceed $1.55 /GJ CDN for a 1 year or 2 year turn back option. No basis differential purchases will
be made on your behalf above $1.55/GJ CDN without your consent. The CGPR index price may be
converted to a fixed price, based on mutual agreement, at any time during the contract term. The
volume initially purchased will be based on the current Daily Contract Quantity (DCQ) flowing in the
current contract year. If upon renewal of the DPA the daily volume is different than that purchased,AE
Sharp will buy the shortfall or sell the excess at the then current market price.
In order to participate in the AE Sharp program your authorization is required on or before March 14,
2003. For further clarification the term of the current'AE Sharp Agency Agreement will be extended to
coincide with the term of the TCPL turn back purchased.
Accepted this day of 2003.
Please indicate with an'x'which term you would prefer:
71 1 Year turn back option
2 Year turn back option
Name: John Mutton Name: Patti L. Barrie
Title: Mayor Title: Munci1 11 C3 rk'
Signature, Signatu'r'e T•'
Company:
Direct Purchase Agreement("DPA'
No.
A Transaction Confirmation will be sent to you upon completion of the natural gas purchase. -
Please return this form by fax to the attention of Gail Bullen at 905-315-2061 no later than
4:00 pm Friday March 14, 2003. -
05/08/03 08:46 FAX 9053152041 SENINOLE CANADA 1a002/002
A. E .Sharp
A di�rlsiQn of Seminole Canada Gas Company
Authorization to Purchase TCPL Turn back capacity
Recently Enbridge Gas Distribution Inc. announced that it will allow all customers who have,
or will have an executed Ontario T—Service Direct Purchase Agreement (DPA) on November
1, 2003 to turnback up to 100% of their TCPL FT capacity at the Central Delivery Area
("CDA") effective November 1, 2003
AE Sharp believes this is an excellent opportunity to reduce your overall cost of natural gas.
We are currently aggregating our client portfolio to take advantage of volumetric purchasing.
By executing this Authorization, AE Sharp is hereby authorized to purchase, on your behalf as
agent, 100% of your CDA eligible Ontario deliveries for a term of one year. The volume initially
purchased will be based on the current Daily Contract Quantity (DCQ). The daily volume
purchase shall be based on the daily volumes flowing in the current contract year. If upon
renewal of the DPA the daily volume is different than that purchased, AE Sharp will buy the
shortfall or sell the excess at the then current market price.
For further clarification the term of the current AE Sharp Agency Agreement will be extended
to coincide with the term of the TCPL turn back purchased.
Accepted this 26th day of May , 2003.
Name: Patti L. Barrie
Title: Munic'pal t
cle
Signature:
Company:
Direct Purchase Agreement("DPA'
No. 6 9433
A Transaction Confirmation will be sent to you upon completion of the natural gas purchase,
Please return this form by fax to the attention of Gail Bullen at 905-315-2041.
AES Turnbaek Authorization letter-REVISED 1yr 5/8/2003 9:14 AM