Exhibit 10(d)(i)
SERVICE AGREEMENT
BY AND BETWEEN
NEW ENGLAND POWER SERVICE COMPANY
AND
AllEnergy Marketing Company, LLC
This Agreement is made and entered into as of the 1st day of
January, 1997 (this "Agreement") by and between AllEnergv
Marketing Company, LLC.("Client") having offices at Three
University Office Park, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and NEW
ENGLAND POWER SERVICE COMPANY ("NEPSCo") having offices at ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Section 1: Description of Services
NEPSCo will provide Client with billing related services
described in Exhibit A (the "Services"). The descriptions of the
Services in Exhibit A are incorporated herein and made a part
hereof.
Section 2: Extent of Agreement
NEPSCo shall exercise all reasonable skill, care and
diligence in carrying out the Services, shall carry out its
duties in accordance with recognized professional standards and
shall provide everything reasonably necessary to complete the
Services in accordance with the requirements of this Agreement.
Section 3: Term
This Agreement shall be in effect as of the date hereof and
through the final billing cycle for each Customer (as defined in
Exhibit A) following termination of the Mass. Electric Pilot (as
defined in Exhibit A), unless earlier terminated by the parties
as provided herein. Either party may terminate this Agreement for
cause by providing 90 days written notice. Notwithstanding
anything to the contrary herein, the obligation to pay the other
party money due under this Agreement shall survive expiration and
termination of this Agreement. Further, upon expiration or
termination of this Agreement the parties shall cooperate with
each other in order to complete all outstanding matters related
to this Agreement in a timely and orderly manner.
Section 4: Payment Terms
Payment terms are set forth in Exhibit B, attached hereto
and made a part hereof.
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Section 5: Limitation of Liability
In no event shall either party be liable to the other party
or to any other third party for any indirect, reliance, multiple,
incidental, special, consequential, or punitive damages
(including those which arise under M.G.L. c. 93A) connected with
or arising out of the Agreement, including, but not limited to,
from NEPSCo's performance of any Services hereunder, whether or
not either party was advised of the possibility of such damages.
In no event shall NEPSCo be liable in contract, tort, or
otherwise (including negligence, warranty, or strict liability)
for amounts in excess of the total of all amounts earned by
NEPSCo in connection with this Agreement, whether or not NEPSCo
was advised of the possibility of such damages.
Section 6: Warranties
NEPSCo and its affiliates, successors and assigns make no
WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE with respect to the Services.
Section 7: Indemnification
To the fullest extent permitted by law, Client shall
indemnify and hold harmless, and at NEPSCo's option, defend
NEPSCo and its affiliates, and their officers, directors,
employees, agents, servants, and assigns (collectively, "NEPSCo
Parties") from and against any and all claims and/or liability
for losses, expenses, damage to property, injury to or death of
any person, including, but not limited to, Client's employees,
NEPSCo's and its affiliates' employees, subcontractors and
subcontractors' employees, or any other liability incurred by
NEPSCo or its affiliates, including expenses, legal or otherwise,
caused wholly or in part by any negligent, grossly negligent or
willful, act or omission of Client, its officers, directors,
employees, agents, servants, or assigns arising out of this
Agreement, except to the extent caused by any negligent, grossly
negligent or willful, act or omission of the NEPSCo Parties.
Section 8: Assignment and Subcontracting
NEPSCo shall not assign or subcontract the Services or any
part thereof without Client's written consent, which Client shall
not unreasonably withhold. Client may not assign its rights or
obligations under this Agreement except with the written consent
of NEPSCo.
Section 9: Independent Contractor
NEPSCo is, and shall at all times remain, an independent
contractor.
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Section 10: Entire Agreement
This Agreement constitutes the entire Agreement between the
parties with respect to the Services and all previous
representations, either written or oral, are hereby annulled and
superseded.
Section 11: No Third Party Beneficiaries
The work performed by NEPSCo under this Agreement is for
Client's use and benefit only, and not for the use and benefit of
any other person, party, or entity. Any use of or reliance upon
the work product provided under or in connection with this
Agreement by any party other than Client shall be at the sole
risk of such party. NEPSCo shall have no liability under
contract, third party beneficiary theory, tort, strict liability,
or otherwise for any third party's use or reliance upon work
performed pursuant to this Agreement.
Section 12: Confidentiality
NEPSCo agrees to take reasonable measures to hold in
confidence all pricing related information provided and
specifically designated by Client as Confidential Information,
other than that of a clearly public nature or that which Client
has acquired from other sources and except as otherwise required
to be disclosed by law, regulation or judicial or administrative
order.
Section 13: Force Majeure
NEPSCo shall not be considered in default under this
Agreement or responsible in tort, strict liability, contract or
other legal theory to Client for damages of any description for
any interruption or failure of service or deficiency in the
quality or quantity of service, or any other failure to perform
if such failure is caused by factors beyond NEPSCo's reasonable
control, including without limitation, storm, flood, lightning,
earthquake, fire, explosion, equipment failure, civil
disturbance, labor dispute, act of God or the public enemy,
action of a court or public authority, scheduled or unscheduled
withdrawal of facilities from operation for maintenance or
repair, or any other cause beyond the reasonable control of
NEPSCo; provided however that NEPSCo shall use reasonable efforts
to remedy or correct any such failure or interruption as soon as
reasonably possible.
Section 14: Amendments and Modifications
This Agreement may not be amended, modified, superseded, or
waived, in whole or in part, except by a written instrument
signed by authorized representatives of each of the parties
hereto. A waiver in one or more instances of any rights under
this Agreement shall not constitute a waiver of such rights for
other or future instances.
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Section 15: Enforceability
Should any portion of this Agreement be judicially declared
invalid, unenforceable, or void, such decision shall not have the
effect of invalidating or voiding the remainder of this
Agreement, and the parties hereto agree that the portion or
portions of this Agreement so held to be invalid, unenforceable,
or void shall be deemed to have been stricken and the remainder
shall have the same force and effect as if said portions or
portions had never been included herein.
Section 16: Headings
Headings are provided herein for the convenience of the
parties and shall not be construed to explain or modify any part
of this Agreement.
Section 17: Notices
Except as otherwise provided in this Agreement, any notices
under this Agreement shall be in writing and shall be sufficient
if delivered by (i) hand, (ii) U. S. Mail, first class postage
pre-paid, or (iii) facsimile, with confirmation of receipt to the
parties as follows:
For NEW ENGLAND POWER SERVICE COMPANY:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
For AllEnergy Marketing Company, LLC:
▇▇▇▇▇ ▇▇▇▇
Vice President and Treasurer
Three University Office Park
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
Section 18: Applicable Law
This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Massachusetts
without regard to the principles of conflict of laws contained
therein.
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IN WITNESS WHEREOF, each party hereto has caused this
Agreement to be executed by its duly authorized representative as
of the day and the year first set forth above.
AllEnergy Marketing Company, LLC
By: s/▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President and Treasurer
NEW ENGLAND POWER SERVICE COMPANY
By: s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
SERVICES
Client has requested that NEPSCo provide it with billing related
services for retail customer sales within Massachusetts Electric
Company's service territory under the Massachusetts Electric
Company Choice: New England Pilot Program ("Mass. Electric
Pilot"), which services will be provided consistent with the
pilot program design, its administrator's rules, and the DPU
approval dated April 3, 1996. Client will supply the NEPSCo with
rates to be implemented for designed customer classes. NEPSCo
will utilize the supplied rates and usage information to
calculate the supplier portion of customer bills, then integrate
this billing option with Transmission, Distribution and Stranded
Cost components (T/D/S) of Massachusetts Electric's ▇▇▇▇ in a
single mailing to the customer.
Billing services include a single price among all customers
within a class on the following rate/pricing structure:
Rate Class Structure Pricing Schedule
-------------------- ----------------
Residential Flat Energy
Residential- Low Income Flat Energy
Residential- Time of Use On/Off Peak Energy
Small C&I- Energy Only Flat Energy
Small C&I- Demand Flat Energy & Demand
The initial establishment of rates will be at no additional cost
provided there is only one per Rate Class Structure (e.g. one
price option per rate structure). Requests to change the pricing
on an existing Rate Class Structure or to add multiple rates
within a structure must be submitted in writing at least five
business days prior to the requested implementation date.
Multiple pricing among customers within a Rate Class Structure
will result in the additional charges set forth in Exhibit B.
Definition of Billing Demand:
----------------------------
Billing Demand shall be the greater of:
1) The greatest fifteen-minute peak usage occurring during the
On-Peak hours period during the month as measured in kilowatts
for each Account, or
2) 90% of the greatest fifteen-minute peak usage occurring during
On-Peak hours period during the month as measured in
kilovolt-amperes for each Account where kilowatt Demand exceeds
75 kilowatts, or
3) 5 Kilowatts/G7 only
On-Peak/Off-Peak periods apply only to residential rate R7 for
the Pilot.
The On-Peak/Off-Peak periods shall be as defined in MECO's
applicable tariff on file with MDPU. At the present time,
On-Peak periods are from 8:00 AM to 9:00 PM, Monday through
Friday, except holidays. Off-Peak periods are 9:00 PM to
8:00 AM, Monday through Friday and all day on Saturday,
Sunday, and holidays.
Holidays are New Year's Day, Presidents Day, Memorial Day,
Independence Day, Labor Day, Columbus Day, Veterans Day,
Thanksgiving Day and Christmas Day. All holidays are on the day
of national observance.
Customer Payment:
----------------
Upon receipt of payments by Massachusetts Electric Company
("MECO") for customers purchasing electric energy from Client,
NEPSCo will ensure that the portion of revenue attributable to
sales of electric energy by Client is forwarded to Client,
including, without limitation, Client's proportionate share of
any Service Fees (as defined below). Notification of said
revenues will be forwarded by midnight of the business day
following receipt of payment by MECO, e.g., notification of
payments received on Monday will be forwarded to Client by
midnight on Tuesday. Payments made to Client will be made in a
lump sum representing all customer revenue received on behalf of
Client for a given day. These lump sum payments to Client will be
made via an Automated Clearinghouse (ACM) transaction and
credited to a pre-determined Client bank account. Client must
provide NEPSCo with the name of the receiving bank, routing and
transit number (ABA number) and bank account number to facilitate
this transfer. The Client credited amount will be accompanied by
an electronic file which provides a detailed payment summary for
each individual Client customer.
If Client is credited with a customer payment under the immediate
preceding paragraph hereof and the customer's payment is not
honored for any reason by the MECO's bank, then the amount
credited to Client for such customer's electric energy will be
charged back to Client and included in the nightly transmission
of customer payment records.
Existing service fees ("Service Fees"), such as interest charges
for unpaid balances, shall remain in effect and be assessed, as
applicable, to each customer account. The cash posting sequence
for customer payments is detailed below:
Cash Posting:
------------
The following cash posting sequence will be in effect upon
receipt of a customer's payment.
A. MECO Cash Posting:
-----------------
1) Rental Arrears
2) Arrears 120 Days and Greater
3) Arrears, 90 Days
4) Arrears, 60 Days
5) Arrears, 30 Days
6) Rental Current
7) Net Current Balance
8) Miscellaneous Arrears
9) Miscellaneous Current
10) Charge off transfer Balance
Note: Following the MECO Cash posting sequence outlined above,
remaining dollars will be credited to Client as follows:
B. Client Cash Posting:
-------------------
1) Arrears 120 Days and Greater
2) Arrears, 90 Days
3) Arrears, 60 Days
4) Arrears, 30 Days
5) Net Current Balance
Note: Following the Client cash posting sequence outlined above,
any remaining dollars i.e credit balance, will be held and
applied to the MECO net current balance.
Collection of Final Billed Accounts:
-----------------------------------
If Client or a Client's customer terminates service for any
reason, NEPSCo will issue a final ▇▇▇▇ to the customer(s). If
after 21 billing cycles a balance remains outstanding, NEPSCo
will issue a reminder ▇▇▇▇ and message to the customer. This
process will be repeated after 42 billing cycles if necessary. If
after 63 billing cycles a customer's balance remains unpaid,
NEPSCo will remove this customer from its billing records and
forward to Client a hard copy report of any uncollected balance
for further collection action if so desired.
Collection Notices:
------------------
NEPSCo has created three levels of collection ▇▇▇▇ messages to
print on a Client customer's ▇▇▇▇. NEPSCo will work with Client
to modify the wording and dollar parameters used to generate a
message on a customer's ▇▇▇▇. Requests to amend any notice or
dollar parameter used to generate such notices will result in
additional charges in accordance with Exhibit B.
Reporting:
---------
NEPSCo has the ability to develop customized reports outlining
pertinent information such as: sales, cash receipts and aging of
accounts receivables for all of Client's customers. Requests to
create a customized report will result in additional charges in
accordance with Exhibit B.
Billing Adjustments:
-------------------
NEPSCo will make its customer service staff available to Client
on a requested basis and at additional cost for the purpose of
applying general adjustments to the Client portion of
a customer's account. Charges for such services are set forth in
Exhibit B.
Notice of Modifications:
-----------------------
Client shall submit all requests for modification to services via
certified mail to the following:
Massachusetts Electric Customer Service & Operations Center
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Director, Customer Service Center
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT B
PRICING
Charges for Billing of Supplier Use:
-----------------------------------
The costs outlined below apply to all standard billing related
services set forth in Exhibit A, but does not include
non-standard services specifically excluded under Exhibit A that
result in additional charges. The following fee schedule applies
on a per ▇▇▇▇ generated basis.
Rate Class Billing Cost
---------- ------------
R-5 $1.27
R-6 $1.27
R-7 $1.26
G-6 $1.49
G-7 $1.57
Requests for multiple pricing within a Rate Class Structure will
result in additional charges based upon an hourly rate of $65.00.
Requests for making general billing adjustments will be serviced
at a charge of $5.00 per customer adjustment.
Invoices/Payment Terms:
----------------------
Client will receive a monthly invoice from NEPSCo. Payment is
due upon receipt. Upon the expiration or termination of the
parties' obligations under this Agreement, any monies or other
charges due to either party to this Agreement shall be paid
within 30 days; provided, however, any refund that arises under
Price Adjustment below shall be payable from NEPSCo within 30
days from the date that it has the necessary information to
calculate the true up pricing. Bills not paid within the 30 days
by either party shall bear interest at the rate of 1-1/2% per
month on any unpaid balance.
Collection Notices:
------------------
Client will be charged on a time and expense basis at actual cost
to amend any notice or dollar parameter used to generate such
notices.
Reporting:
---------
NEPSCo will review any request to create a customized report and
charge Client on a time and expense basis at actual cost to
develop such reports.
Price Adjustment:
----------------
The charges for billing related services set forth herein will be
adjusted to reflect actual costs incurred by NEPSCo based upon
the Public Utility Holding Company Act of 1935 and SEC
regulations and orders. Said adjustments will be calculated
annually following the close of each calendar year applicable to
this Agreement.
Tax Implications:
----------------
It is Client's or its customer's responsibility to identify and
request any exemption from the collection of the tax by filing
appropriate documentation with NEPSCo or MECO. To the extent that
the Client or customer has not forwarded the appropriate
exemption documentation, NEPSCo will collect on behalf of the
Client any sales tax imposed by governmental authorities with
respect to the sale of electricity to its customers. Client shall
be responsible, however, to pay all applicable state, local
and/or Federal taxes associated with Client's purchase and/or
sale of electricity under the Pilot, and shall indemnify NEPSCo
against all such obligations.