EXHIBIT 10.9
ORANGE AND ROCKLAND UTILITIES, INC.
CONSOLIDATED BILLING
AND
ASSIGNMENT AGREEMENT
TABLE OF CONTENTS
COMMON TERMS AND CONDITIONS...................................................2
1.1 INCORPORATION BY REFERENCE........................................3
1.2 TERM..............................................................3
CONSOLIDATED BILLING ARRANGEMENTS.............................................4
2.1 ASSIGNMENT OF ESCO'S ACCOUNTS RECEIVABLES.........................4
2.2 ESCO OBLIGATIONS..................................................4
2.3 REPRESENTATIONS AND WARRANTIES....................................5
2.4 O&R BILLING SERVICE...............................................7
2.5 CONSOLIDATED BILLING SERVICE FEE.................................12
MISCELLANEOUS................................................................13
3.1 RESOLUTION OF DISPUTES...........................................13
3.2 NOTICES..........................................................13
3.3 TERMINATION OF AGREEMENT.........................................14
3.4 FORCE MAJEURE....................................................15
3.5 AMENDMENTS.......................................................16
3.6 ASSIGNMENT.......................................................16
3.7 PRIOR AGREEMENTS SUPERSEDED......................................16
3.8 WAIVER AND MODIFICATION..........................................17
3.9 APPLICABLE LAW AND FORUM.........................................17
3.10 SEVERABILITY.....................................................17
3.11 AGENCY...........................................................18
3.12 NOT FOR THE BENEFIT OF THIRD PARTIES.............................18
CONSOLIDATED BILLING AND ASSIGNMENT AGREEMENT
COMMON TERMS AND CONDITIONS
This Consolidated Billing and Assignment Agreement ("Agreement") is
made and entered into this _____ day of __________, 200__, by and between Orange
and Rockland Utilities, Inc., a New York corporation having its principal office
at Xxx Xxxx Xxxx Xxxxx, Xxxxx Xxxxx, Xxx Xxxx 00000 ("O&R"), and
_____________________, a ______________________ corporation, having an office at
________________________ ("ESCO"), both O&R and the ESCO hereinafter sometimes
referred to collectively as the "Parties" or individually as a "Party".
WITNESSETH:
WHEREAS, O&R has implemented retail access programs, as described in
its Schedule for Electricity Service, P.S.C. No. 2 - Electricity, and Schedule
for Natural Gas Service, P.S.C. No. 4 - Gas, (together "Tariff") and in its
Electric and Gas Operating Procedures ("Operating Procedures"), under which
O&R's retail customers may purchase natural gas and/or electricity from an
energy services company or gas marketer ("energy services company");
WHEREAS, ESCO has been deemed approved by the New York State Department
of Public Service ("NYDPS") to act as an energy services company and has met any
requirements established by O&R to be an energy services company authorized to
sell natural gas and/or electricity to O&R's retail customers under the retail
access programs;
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WHEREAS, ESCO has requested that O&R render a consolidated single
monthly xxxx to its retail access customers for both the ESCO's commodity supply
and O&R's delivery services; and
WHEREAS, O&R agrees to provide such consolidated billing service on
behalf of the ESCO subject to the terms and conditions of this Agreement, the
ESCO Operating Agreement(s), the Operating Procedures and the Tariff; and
WHEREAS, ESCO desires that O&R accept assignment of all amounts billed
by O&R on ESCO's behalf and make payments to ESCO relating to such assignment.
NOW, THEREFORE, in consideration of the premises and mutual promises
set forth below, O&R and ESCO, intending to be legally bound, hereby covenant,
promise and agree as follows:
ARTICLE I
TARIFF AND OPERATING PROCEDURES AND TERM OF AGREEMENT
1.1 INCORPORATION BY REFERENCE
The terms and conditions of the Tariff, Operating Agreements, Operating
Procedures, and the New York Public Service Commission's ("NYPSC") Uniform
Business Practices ("UBPs"), as applicable, are fully incorporated in this
Agreement except as is otherwise expressly provided herein.
1.2 TERM
This Agreement shall commence on the date set forth above ("Effective
Date") and will remain in effect until terminated (i) in accordance with its
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terms, (ii) by an order of the NYPSC, or (iii) if the ESCO Operating
Agreement(s) between the Parties is (are) terminated.
ARTICLE II
CONSOLIDATED BILLING ARRANGEMENTS
2.1 ASSIGNMENT OF ESCO'S ACCOUNTS RECEIVABLES
ESCO hereby assigns to O&R its rights in all amounts due from all of
its retail access customers ("Customers") on consolidated bills issued by O&R on
and after the Effective Date of this Agreement and any amounts due from its
Customers on consolidated bills issued previously under any prior consolidated
billing services agreement with O&R ("Customers' Accounts"). ESCO hereby grants
O&R a security interest in said Customers' Accounts and authorizes O&R to file,
on behalf of ESCO, all financing statements and other documents necessary to
perfect said security interest.
2.2 ESCO OBLIGATIONS
X. XXXX will provide O&R a single rate ($/kWh and/or $/ccf) to be
charged each Customer for each unit of electricity and/or gas supply consumed by
that Customer. Rates may differ from Customer to Customer. The rate provided by
ESCO will be used by O&R for billing purposes for the next xxxx issued to the
Customer and every xxxx thereafter until changed by ESCO no later than 10
calendar days prior to the Customer's next scheduled meter read date.
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X. XXXX will submit the monthly billing information to O&R in an
electronic format prescribed by O&R identifying the name, O&R account number and
unit rate(s) for each Customer.
X. XXXX will satisfy all other obligations set forth in the Operating
Procedures.
X. XXXX will furnish O&R with an affidavit from an officer of ESCO
representing that ESCO has notified its current non-residential customers and
will notify its future non-residential Customers that O&R is permitted to
disconnect the non-residential Customer for nonpayment of the ESCO charges. ESCO
will indemnify O&R for any cost, expense, or penalty if any Customer's service
is discontinued for nonpayment and the Customer establishes that it did not
receive such notification.
2.3 REPRESENTATIONS AND WARRANTIES
ESCO makes the following representations and warranties to O&R:
A. The information provided in the O&R Application Form for Qualified
Seller Service under Gas Service Classification No. 11 and/or the Electric ESCO
Operating Agreement is correct as of the Effective Date, and ESCO will promptly
inform O&R of any changes in such information.
X. XXXX is in compliance with all of the requirements set forth in
Appendix B of NYPSC Opinion 97-5 and will continue to be in compliance with such
requirements and all subsequently adopted regulatory requirements throughout the
term of this Agreement.
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C. No material changes in the data contained in ESCO's initial
eligibility application filing with the NYDPS have occurred or will occur,
except such changes as have been or will be reported to the NYDPS.
D. Throughout the term of this Agreement, ESCO will adhere to its own
policies and procedures as set forth in its retail access application form filed
with the NYDPS, as updated from time to time.
X. XXXX will not, either directly or indirectly, engage in, participate
in or encourage or assist others to engage or participate in the practice of
transferring customers without authorization, commonly referred to as
"slamming."
F. [WITH THE EXCEPTION OF A SECURITY INTEREST FILED BY SECURED CREDITOR
(AS DEFINED IN ARTICLE 9 OF THE UNIFORM COMMERCIAL CODE), FOR WHICH SECURED
CREDITOR HAS SUBORDINATED TO O&R ITS SECURITY INTEREST IN ESCO'S CUSTOMER
RECEIVABLES AND IN AMOUNTS NETTED BY O&R FROM ITS REMITTANCES TO ESCO,] no third
party has any right, title or interest to any Customers' Accounts (as defined in
Section 2.1 above) assigned by ESCO hereunder to O&R, and ESCO undertakes that,
[WITH THE EXCEPTION OF THE SECURED CREDITOR SECURITY INTEREST REFERENCED
HEREIN], it shall not allow any interest or permit any third party to assert a
claim of right, title or interest on those Accounts or any new Customers'
Accounts opened during the term of this Agreement.
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2.4 O&R BILLING SERVICE
A. O&R will render ESCO's Customers a consolidated xxxx for both ESCO's
commodity supply (electricity and/or natural gas) and O&R's energy delivery
services on a monthly basis. O&R will calculate the Customer's ESCO charges for
billing purposes by multiplying the Customer's monthly consumption by the rate
provided by ESCO pursuant to Section 2.2 (A) of this Agreement.
B. The consolidated xxxx will display the amount and price of the
commodity sold by ESCO and the ESCO's identity. O&R's charges will be reflected
in the manner prescribed in the Tariff.
C. O&R will perform cycled meter readings in accordance with its
business practices. In the event an actual meter reading cannot be obtained, O&R
shall estimate the Customer's consumption for billing purposes in accordance
with applicable PSC regulations. The consolidated xxxx will be issued in
accordance with the established meter reading cycles for the applicable account.
If the meter read date for a particular Customer changes, O&R will notify ESCO
of same.
D. O&R will receive and process Customers' payments. O&R will perform
collection activities on Customers' accounts in conformity with the Home Energy
Fair Practices Act ("HEFPA") with respect to residential customers and in
accordance with Part 13 of 16 NYCRR with respect to non-residential customers.
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For non-residential Customers, O&R shall disconnect its delivery service and the
ESCO commodity service where: (i) the Customer fails to make full payment of all
amounts due on the consolidated billing; (ii) O&R purchased the ESCO receivable;
and (iii) the ESCO furnishes O&R an affidavit as described in Section 2.2 (D)
herein.
Any Customer payment or portion thereof that is billed by O&R under
this Agreement and received by ESCO from Customer shall be held by ESCO in trust
as the property of O&R and shall be immediately remitted in full to O&R within
five (5) business days without any deduction or set-off by ESCO.
E. Within five (5) business days, O&R will notify ESCO if (i) O&R
terminates a Customer for non-payment; or (ii) Customer voluntarily closes its
O&R account.
F. O&R will treat all information received from ESCO as confidential
and will not share the information with any third party. In the event that
disclosure is required by a governmental body, court or applicable law, O&R may
disclose such information to the extent so required, but shall promptly notify
ESCO prior to disclosure and shall cooperate (consistent with its legal
obligations) with ESCO's efforts to obtain protective orders or similar
restraints with respect to such disclosure at the expense of ESCO.
G. Beginning in the second (2nd) calendar month following commencement
of consolidated billing under this Agreement, O&R will remit payment to ESCO,
via wire transfer to a bank (or other mutually agreed to depository or payee)
designated in writing by ESCO, on the 20th calendar day of the month (or the
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next following business day if the 20th falls on a Saturday, Sunday, or public
holiday) of all undisputed ESCO charges billed to Customers in the previous
calendar month. An amount is deemed disputed if the Customer contacts O&R
questioning the validity of ESCO's unit commodity rate or ESCO's service to the
Customer. A Customer's claim of either inability to pay or inaccurate meter
reading shall not constitute a dispute for purposes of O&R's obligation to pay
ESCO amounts billed for its commodity supply.
O&R will notify ESCO within 24 hours of its receipt of notification by
a Customer of the latter's refusal to pay the ESCO charges billed due to an
unresolved dispute between ESCO and the Customer. O&R will pay ESCO for resolved
disputed ESCO charges within five (5) business days of O&R's receipt of payment
from the Customer.
H. Subject to the NYPSC UBPs, O&R may, at its option, reject requests
for or discontinue consolidated billing for any Customers' Accounts that are at
least 38 calendar days past due, unless the past due amount is subject to a
Deferred Payment Agreement and the customer is fulfilling its Deferred Payment
Agreement obligations.
I. O&R will provide a budget billing option to Customers for the
combined ESCO and O&R charges using O&R's budget billing protocol for
Full-Service Customers.
J. O&R's remittance to ESCO in accordance with Section 2.4 (G) shall be
net of all amounts owed to O&R by the ESCO for retail access program services
and/or other charges in accordance with the applicable provisions of the Tariff
or the ESCO Operating Agreements, such as:
o Special meter reading fees
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o Customer energy history fees
o Account separation fees
o Profile information fees
o Consolidated Billing Service fees
o Gas imbalance charges
o Capacity Release charges
o Winter Bundled Sales Service charges
o Other PSC-approved Tariff fees and charges
o Delta amounts not paid by a customer to restore Service pursuant to
Public Service Law ss. 32(5)(d).
K. O&R will provide to the ESCO customer xxxx information including the
commodity usage, the billed amount, and tax information pursuant to Section 2.4
(L) below, for each of the ESCO's Customers with the monthly remittance
identified in Section 2.4 (G). O&R shall use Electronic Data Interchange ("EDI")
standards, to the extent developed, for transmittal of customer information and
may transmit data, in addition to the minimum information required, via EDI or
by means of an alternative system.
ESCO shall notify O&R in writing of any error(s) alleged to be made by
O&R in the billed amount for ESCO's customers, including all such errors related
to the rate provided by ESCO pursuant to Section 2.2 (A) of this Agreement,
within thirty (30) days of the posting of such statement on O&R's electronic
bulletin board. In the event ESCO fails to notify O&R in writing of any such
error(s) alleged to be made by O&R within thirty (30) days of receiving such
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billed information from O&R, ESCO waives any claims to loss, injury or damage
resulting from such error and O&R shall be relieved of all liability resulting
from such error, whether based in contract or tort (including negligence or
strict liability). O&R has no responsibilities under this Agreement for errors
made by ESCO in the rate information provided to O&R pursuant to Section 2.2(A)
herein.
L. O&R is not responsible for the paying or remitting to the applicable
taxing authorities, on behalf of ESCO, of any federal, state or local taxes as a
result of this Agreement. Based on information regarding each Customer's tax
status supplied by ESCO, O&R will calculate and identify the sales and use tax
associated with ESCO's charges and will provide such calculations to ESCO at the
same time as the remittance payment is made pursuant to Section 2.4 (G) above.
ESCO shall be liable for and pay all such taxes and shall indemnify, defend, and
hold harmless O&R from and against any and all liability for such taxes, and any
interest and penalties thereon.
X. XXXX, to the fullest extent allowed by law, shall indemnify, defend
and hold harmless and shall reimburse O&R, from and against any and all damages,
losses, liabilities, obligations judgments, orders, writs, injunctions, decrees,
fines, penalties, taxes, costs, suits, charges, expenses (including attorneys'
fees), claims, investigations, proceedings, or causes of action (collectively
"Damages") which may at any time be imposed on, incurred by, or asserted against
O&R by third parties (including Customers) that are directly or indirectly
caused by, arise out of or under, associated with, incident to or in connection
with this Agreement , including, but not limited to any of the following: (i)
ESCO's acts or omissions regarding Customer Accounts or billing rates; (ii) any
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claim, demand, cause of action, litigation, suit, proceeding, hearing or
investigation (collectively "Claims") by any person for payments based upon any
agreement or understanding alleged to have been made by such person, directly or
indirectly, with ESCO or any of its representatives, in connection with any of
the transactions contemplated by this Agreement; (iii) any Claims with respect
to the action or inaction of ESCO or its representatives, which is contrary to
the requirements of this Agreement; (iv) any inaccuracy in or other breach of
any representation or warranty made by ESCO in this Agreement; (v) any failure
by ESCO to perform or comply, in whole or in part, with any covenant, agreement
or provision of this Agreement; and (vi) any costs and expenses, including
reasonable fees and attorney's fees associated with all Damages incurred by O&R
in connection with any Claims subject to indemnification rights as provided
herein.
2.5 CONSOLIDATED BILLING SERVICE FEE
A. O&R will charge ESCO a Consolidated Billing Service fee per xxxx
rendered on behalf of ESCO in accordance with Section 2.5 (B) below. As of the
Effective Date of this Agreement, the fee is $0.62 per xxxx. The fee will be
adjusted, as necessary, to comply with any changes approved by the NYPSC.
X. XXXX'x payment of the Consolidated Billing Service fee will be
effectuated by a recoupment from remittances due ESCO as provided in Section 2.4
(J).
C. In the event of termination of this Agreement, O&R shall have the
right to retain all Customer payments associated with bills rendered to ESCO's
Customers (pursuant to Section 2.4 above) prior to the date of termination, and
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O&R shall make the appropriate remittance payments to ESCO associated with those
bills in accordance with Section 2.4 (G) and (J). To the extent that amounts
owed to O&R by the ESCO for retail access program services and/or other charges
in accordance with the applicable provisions of the Tariff or the ESCO Operating
Agreements exceed Customer payments, either upon termination of this Agreement
or at any time during the course of the Agreement, O&R shall invoice ESCO for
any and all amounts due to O&R and ESCO shall pay such invoice pursuant to the
terms and conditions set forth in Section 7 of the NYPSC UBPs as incorporated in
the Operating Procedures.
ARTICLE III
MISCELLANEOUS
3.1 RESOLUTION OF DISPUTES
If a dispute arises between Parties, including those issues requiring
NYPSC action, the dispute resolution process set forth in the NYPSC UBPs will be
followed.
3.2 NOTICES
Any notice to be provided pursuant to the terms of this Agreement will
be deemed given, and any other document to be delivered hereunder will be deemed
delivered, if in writing and (i) delivered by hand, (ii) deposited for
next-business day delivery (fee prepaid) with a reputable overnight delivery
service such as Federal Express, or (iii) mailed by certified mail (return
receipt requested) postage prepaid, addressed to the recipient at the address
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set forth below for that Party (or at such other address as that Party may from
time to time designate by giving notice thereof).
Notice to:
Orange and Rockland Utilities, Inc.
Manager - Retail Access
000 X. Xxxxx 00
Xxxxxx Xxxxxx, XX 00000
Telephone #: 000-000-0000
Fax # 000-000-0000
E-Mail: xxxxxxxxx@xxx.xxx
and to:
ESCO
-----------------------------
-----------------------------
Attn:
-----------------------------
Telephone #:
-----------------------------
Fax #
-----------------------------
E-Mail:
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3.3 TERMINATION OF AGREEMENT
O&R shall have the right to terminate this Agreement on thirty (30)
days' written notice to ESCO; provided, however, that this Agreement may be
terminated: (i) on one (1) day's written notice if the ESCO Operating
Agreement(s) is terminated for any reason; (ii) on not less than fifteen (15)
days' written notice if ESCO breaches any of the representations and warranties
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set forth in Section 2.3 above or any of the other provisions of this Agreement
and does not cure said breach within the fifteen-day period; or (iii) on one (1)
day's written notice following issuance of an order or ruling by the NYPSC
materially impacting any of the terms or conditions herein. In the latter
instance, O&R will offer ESCO an alternative consolidated billing arrangement to
replace the one provided for in this Agreement, to the extent that the NYPSC
requires utilities to provide consolidated billing services. O&R will render
ESCO's Customers a consolidated xxxx for XXXX'x commodity supply provided to
Customers through the date of termination or expiration of the Billing
Agreement.
3.4 FORCE MAJEURE
Any delay in the performance of any of the duties or obligations of
either Party hereto shall not be considered a breach of this Agreement and the
time required for performance shall be extended for a period equal to the period
of such delay, provided that such delay has been caused by or is the result of
any occurrence beyond the reasonable control of a Party which causes such Party
to be delayed in or prevented from performing or carrying out any of its
obligations under this Agreement and which, by the exercise of due diligence,
that Party is unable to prevent, avoid, mitigate, or overcome, including any of
the following: any act of God, labor disturbance, act of the public enemy, war,
insurrection, riot, fire, storm or flood, ice, explosion, order, regulation or
restriction imposed by governmental, military or lawfully established civilian
authorities, provided that a Force Majeure Event shall not include lack of
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finances or change in market conditions. The Party so affected shall give prompt
written notice to the other Party of such cause and shall take whatever
reasonable steps are necessary to relieve the effect of such cause as rapidly as
possible.
3.5 AMENDMENTS
Notwithstanding any provision of this Agreement, O&R may at any time
propose and file with the NYPSC changes to the rates, terms, and conditions of
the Tariff, and/or the Operating Procedures. Such amendment or modification will
become effective with respect to service pursuant to this Agreement on the date
specified by the NYPSC.
3.6 ASSIGNMENT
Neither Party shall assign any of its rights or obligations under this
Agreement without obtaining the prior written consent of the non-assigning
Party, which consent shall not be unreasonably withheld. No assignment of this
Agreement shall relieve the assigning Party of any of its obligations under this
Agreement until such obligations have been assumed by the assignee. Any
assignment in violation of this Section shall be void.
3.7 PRIOR AGREEMENTS SUPERSEDED
This Agreement constitutes the entire understanding between the Parties
with respect to the subject matter hereof, supersedes any and all previous
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understandings between the Parties with respect to the subject matter hereof,
and binds and inures to the benefit of the Parties, their successors and
permitted assigns.
3.8 WAIVER AND MODIFICATION
No modification or waiver of all or any part of this Agreement will be
valid unless in writing and signed by the Parties or their agents. Any waiver
will be effective only for the particular event for which it is issued and will
not be deemed a waiver with respect to any subsequent performance, default or
matter.
3.9 APPLICABLE LAW AND FORUM
Interpretation and performance of this Agreement will be in accordance
with, and will be controlled by, the laws of the State of New York except its
conflict of laws provisions to the extent they would require the application of
the laws of any other jurisdiction. Each Party irrevocably consents that any
legal action or proceeding arising under or relating to this Agreement will be
brought in a court of the State of New York or a federal court of the United
States of America located in the State of New York, County of New York. Each
Party irrevocably waives any objection that it may now or in the future have to
the State of New York, County of New York as the proper and exclusive forum for
any legal action or proceeding arising under or relating to this Agreement.
3.10 SEVERABILITY
If one or more provisions herein are held to be invalid, illegal or
unenforceable in any respect it will be given effect to the extent permitted by
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applicable law, and such invalidity, illegality or unenforceability will not
affect the validity of the other provisions of this Agreement.
3.11 AGENCY
This Agreement is not intended, and will not be construed, to create
any association, joint venture, agency relationship or partnership between O&R
and ESCO or any other parties or to impose any such obligation or liability upon
either Party.
3.12 NOT FOR THE BENEFIT OF THIRD PARTIES
This Agreement is for the benefit of the Parties hereto and not for the
benefit of any third parties.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed, as of the date first above written.
ORANGE AND ROCKLAND UTILITIES, INC.
By /s/ XXXXXX X. XXXXXX
------------------------------------------------
Name Xxxxxx X. Xxxxxx
Title Director
(ESCO)
By /s/ XXXX XXXXXXXX
------------------------------------------------
Name Xxxx Xxxxxxxx
Title Chairman and Chief Executive Officer
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