HomeMy WebLinkAboutResolution - 2021-R0135 - Master Brokerage Agreement with Amerex BrokersResolution No. 2021-R0135
Item No. 7.31
April 13, 2021
RESOLUTION
WHEREAS, Lubbock Power & Light is the municipally owned public power utility
of the City of Lubbock ("LP&L");
WHEREAS, LP&L was previously a member of the West Texas Municipal Power
Association ("WTMPA");
WHEREAS, the WTMPA previously acquired certain purchased power derived
from renewable energy and related environmental commodities, including renewable
energy credits ("RECs"), and had engaged a broker to sell the same;
WHEREAS, effective October 1, 2019, the WTMPA was re-created to delete the
City of Lubbock as a member;
WHEREAS, to avoid diminution in REC value, it is imperative that this Master
Brokerage Agreement ("Agreement') be effective as of March 30, 2021; and
WHEREAS, the City Council of the City of Lubbock now desires to join in the
action of LP&L by ratifying the Agreement to engage Amerex independently to sell its
environmental commodities, including RECs. NOW, THEREFORE:
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the City Council of the City of Lubbock hereby ratifies that certain Master
Brokerage Agreement ("Agreement') by and between LP&L and Amerex Brokers,
LLC, as attached hereto and incorporated herein, to the City Council of the City of
Lubbock due to the need for this Agreement to be effective immediately, as fully and
completely and the same as if originally authorized by the City Council and executed
by the Mayor as of March 30, 2021, and all expenditures previously associated
therewith or documents related thereto are likewise ratified.
BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF
LUBBOCK:
THAT the Mayor, or his/her designee, BE and is hereby authorized and directed to
execute for and on behalf of the City of Lubbock that certain Master Brokerage
Agreement by and between the City of Lubbock, acting by and through Lubbock Power
& Light, and Amerex Brokers, LLC, as attached hereto and incorporated herein as
though set forth fully herein in detail, and any documents related thereto.
Passed by the City Council this I P day of April, 2021.
DANIEL M. POPE, Mayor
Gy01MIS
Beck Garza, City Secretary
APPROVED AS TO CONTENT:
David McCalla, Director of Electric Utilities
APPROVED AS TO FORM:
J y Yith, LP&L General Counsel
Resolution No. EUB 2021-R0018
RESOLUTION
WHEREAS, Lubbock Power & Light is the municipally owned public power
utility of the City of Lubbock ("LP&L");
WHEREAS, LP&L was previously a member of the West Texas Municipal
Power Association ("WTMPA");
WHEREAS, the WTMPA previously acquired certain purchased power
derived from renewable energy and related environmental commodities, including
renewable energy credits ("RECs"), and had engaged a broker to sell the same;
WHEREAS, effective October 1, 2019, the WTMPA was re-created to delete
the City of Lubbock as a member; and
WHEREAS, the City of Lubbock, acting by and through LP&L, new desires
to engage Amerex independently to sell its environmental commodities, including
RECs. NOW, THEREFORE:
BE IT RESOLVED BY THE ELECTRIC UTILITY BOARD OF THE CITY OF
LUBBOCK:
THAT the Director of Electric Utilities, or his/her designee, BE and is hereby
authorized and directed to execute for and on behalf of the City of Lubbock, acting
by and through Lubbock Power & Light, the municipally owned electric utility of
Lubbock, Texas ("LP&L"), that certain Master Brokerage Agreement by and
between LP&L and Amerex Brokers, LLC, as attached hereto and incorporated
herein as though set forth fully herein in detail, and any documents related thereto.
BE IT FURTHER RESOLVED BY THE ELECTRIC UTILITY BOARD OF
THE CITY OF LUBBOCK:
THAT the Electric Utility Board recommends ratification of that certain
Master Brokerage Agreement by and between LP&L and Amerex Brokers, LLC,
as attached hereto and incorporated herein, to the City Council of the City of
Lubbock due to the need for this agreement to be effective immediately.
BE IT FURTHER RESOLVED BY THE ELECTRIC UTILITY BOARD OF
THE CITY OF LUBBOCK:
THAT this Resolution shall be null and void if the City Council of the City of
Lubbock does not ratify this Master Brokerage within thirty (30) days of the date
hereof.
Passed by the Electric Utility Board this 30t" day of March, 2021.
Dan Odom, Chairman
ATTEST:
en Stafford, Board WbpGary
APPROVED AS TO CONTENT:
David McCalla, Director of Electric Utilities
APPROVED AS TO FORM:
Hunter Harrison, LP&L Electric Utilities Attorney
Resolution No. 2021-R013 5
MASTER BROKERAGE AGREEMENT
This Master Brokerage Agreement (the "Agreement") is made and entered into as of this 30`h day of March,
2021 (the "Effective Date"), by and between Amerex Brokers LLC, a Delaware limited liability company
whose principal place of business is located at One Sugar Creek Center Blvd. # 700, Attn: Legal Counsel,
Sugar Land, Texas 77478 (hereinafter "Broker") and the City of Lubbock ("City"), acting by and through
Lubbock Power & Light, located at 1314 Ave K., 51h Floor, Lubbock, TX 79401 (hereinafter "Customer").
WHEREAS, Customer has received certain environmental commodities, including but not limited to
renewable energy credits;
WHEREAS, Customer desires to engage Broker, and Broker desires to be engaged, for brokerage services
related to the sale of Customer's renewable energy credits.
NOW THEREFORE, the parties hereto, for good and sufficient consideration, the receipt of which is hereby
acknowledged, intended to be legally bound, do hereby agree as follows:
1. Nature of* Service; and Exclusivity EnAaa-ment
Broker hereby agrees to supply the Customer and Customer hereby agrees to engage Broker to provide
brokerage services in environmental commodities including but not limited to renewable energy credits
("RECs") (herein, the "Products'l. The scope and price of the brokerage services provided by the Broker
under this Agreement shall be agreed to by the Broker and Customer from time to time.
Both Broker and Customer acknowledge that this Agreement grants Broker exclusive rights to provide
brokerage services on behalf of Customer with respect to the Products for a period of two (2) years from the
Effective Date of this Agreement. Further, during the Initial Term (as defined below in Section 5) Customer
shall be obligated to refer to Broker any inquiries for the sale or purchase of the Products that it obtains directly.
Finally, Customer shall be obligated to pay Broker per Section 3 below on any and all RECs-related
transactions entered into with counterparties introduced to Customer through Broker.
2. Terms of Business
The Customer will regularly provide Broker with prices, volumes and any other relevant terms and conditions
relating to the Products that the Customer would like to place in the market, including but not limited to, terms
and conditions relating to purchaselsale, price, quantity, sources, term, and delivery points, and Broker shall
use diligent, commercially reasonable, and best efforts to locate counterpart(s) to such transactions.
Broker shall have no authority to bind Customer in any transaction for the purchase or sale of the Products,
unless authorized, orally or in writing by Customer, its agents, or duly authorized representatives. The Electric
Utility Board of the City of Lubbock hereby delegates authority to the Director of Electric Utilities, or his
designee, to authorize such transactions pursuant to the Agreement, if determined to be in the best interest of
Customer. Broker is responsible for distributing confirmations of each transaction in accordance with the
industry standards.
It is recognized and agreed by the parties that Broker does not and cannot act as a principal to, or take title to,
the Products and that Broker does not and cannot assess the legal capacity of counterparties to enter into
contracts relating to the Products, guarantee delivery of the Products or assess the creditworthiness of
counterparties. Further, Broker may be accepting a fee from both parties to any transaction for the sale or
purchase of the Products. It is recognized and agreed by the parties that acceptance of a fee from both parties
is customary practice in the industry and does not represent a conflict of interest. Notwithstanding such right
to accept a fee from a counterparty provided above, in all matters pertaining to this Agreement, Broker shall
act in the Customer's best interests and must refrain from self -dealing unless Customer consents after full
disclosure.
The parties agree that Customer and its relevant counterparty will be wholly responsible for the settlement of
each transaction between Customer and said counterparty and that Customer will not rely on Broker for any
settlement of each transaction. Such transactions will be settled and confirmed by the specific terms of the
written confirmation, if any, between Customer and said counterparty and in accordance with the terms and
conditions of Customer's agreement then in effect with said counterparty.
3. Charees
Broker charges a brokerage fee for its services (the "Fee") as full compensation and consideration for the
performance of work hereunder. The Fee for all RECs transactions relating to this Agreement shall be one
and one-half percent (1.5%) of the total notional value of each REC transaction.
Broker shall invoice the Customer on a monthly basis for all services provided by Broker in that preceding
calendar month and shall provide the Customer with a corresponding summary of all transactions for which
Broker has acted on behalf of the Customer.
All undisputed invoices are payable within thirty (30) days from the date of the applicable invoice.
In accordance with best practice, confirmations should be matched with trades as soon as is possible but no
later than 24 hours after each trade. Broker will not be held liable for trade differences that arise as a result of
confirmations not being checked promptly upon receipt of such confirmation.
Broker and Customer agree that Customer is a tax-exempt entity, and Customer can provide a certificate of
same upon request.
4. Confidcntiality: Recordinas
The parties agree that they shall not, and shall ensure their respective representatives shall not, except as
necessary to perform the activities contemplated by this Agreement, use, copy, or disclose any Confidential
Information (as defined below) relating to the other party or this Agreement other than to its representatives
who have a need to know such information to perform activities in connection with this Agreement. For
purposes of the foregoing, °`Confidential lnfarmation" shall mean all non-public, confidential, or proprietary
information, data, reports, interpretations, forecasts, and records containing or otherwise reflecting information
relating to the other party that is furnished by the other party in connection with this Agreement. Confidential
Information shall not include: (a) material which was already in the public domain otherwise than through a
breach of this Agreement; (b) was available (otherwise than through a breach of a confidentiality agreement)
to the party to whom such disclosure was made; (c) was disclosed with the written consent of the other party;
(d) is non -Customer specific internal -proprietary data that is aggregated or anonymized for internal or external
usage; or (e) this Agreement and any amounts paid subject thereto. The parties shall have the right to disclose
Confidential Information: (x) at the request of any regulator, including any self -regulatory organization, or
any governmental agency; (y) pursuant to applicable law or regulation, including without limitation the Texas
Public Information Act; or (z) as required by court order, subpoena, or other legal process and, where
permissible or practicable, shall notify the other party of such requested or required disclosure.
To the extent permitted by applicable law, Broker and Customer each consents to the creation of a tape or
electronic recording of all telephone conversations and the preservation of all electronic mail or instant mail
messages between them and that any such recording will be retained in confidence, secured from improper
access. To the extent permitted by law, the contents of such conversations may be submitted in evidence in
any proceeding or action relating to this Agreement, or in any proceeding or action relating to the transaction
between Customer and the relevant counterparty, subject to the applicable rules of evidence or other applicable
law. To the extent permitted by law, each party waives any further notice of such monitoring or recording,
and agrees to notify its officers and employees of such monitoring or recording and to obtain any necessary
consent of such officers and employees as may be required by applicable law.
5. Term
This Agreement shall commence on the Effective Date and shall remain in full force and effect for two years
from the Effective Date ("Initial Term"). At the expiration of the Initial Term, this Agreement will
automatically renew on a non-exclusive basis for successive one -month terms until terminated by either party
providing the other party notice in writing of its intention to terminate or amend this Agreement of not less
than thirty (30) business days. Termination shall not affect the completion of obligations that have already
arisen under this Agreement including without limitation the payment of all outstanding, undisputed Fees by
the Customer.
6. Termination for Cause by Customer
Customer may terminate this Agreement immediately If Broker: (i) violates any Laws; (ii) engages in false or
misleading representations regarding Customer or its Products; (iii) is charged with or convicted of a felony;
(iv) violates its confidentiality obligations under this Agreement; (v) is in default of any material obligations
or duties under this Agreement and fails to cure such default within ten (10) days following the receipt of
written notice from Customer describing the default; or (vi) files bankruptcy, goes into compulsory liquidation,
or makes an assignment of this Agreement for the benefit of creditors.
7. Limitation of Liabilk
Except to the extent mandated by applicable law and except for damages arising from events leading to
termination in accordance with Section 6(iv); Broker shall not be liable to the Customer by reason of any
representation (unless fraudulent) or any implied warranty, condition, or other term, or any duty at common
law, or under the express terms of this Agreement, for any loss of profit or any indirect, special or consequential
loss, damage, costs, expenses, or other claims (caused by negligence or otherwise of Broker or its servants)
which arise out of or in connection with the provision of the nature of the services provided by Broker to the
Customer and the entire liability of Broker and/or in connection with this Agreement shall not exceed the
amount of Broker's Fees for the provision of the applicable transaction in question.
Broker shall not be liable to the Customer or be deemed to be in breach of this Agreement by reason of any
delay in performing, or any failure to perform, any obligations in relation to the services provided by Broker,
if the delay or failure was due to any cause beyond Broker's reasonable control.
Except to the extent mandated by applicable law and except for damages arising from events leading to
termination in accordance with Section 6(iv); Customer shall not be liable to Broker for any implied warranty,
condition, or other term, or any duty at common law, or under the express terms of this Agreement, for any
loss of profit or any indirect, special or consequential loss, damage, costs, expenses, or other claims. In no
event will Customer's liability exceed the amount of payments, including the Fee for the provision of the
applicable transaction in question.
8. General
This Agreement constitutes the entire agreement between the parties and supersedes any previous agreement
or understanding with respect to the subject matter hereof and may not be varied except in writing between
the parties. All other terms and conditions express or implied by statute or otherwise, are excluded to the full
extent permitted by law. Any notice required or permitted to be given by either party to the other under these
conditions shall be in writing addressed to the other party to its principal place of business or such other address
as may at the relevant time have been notified pursuant to this provision to the other party giving the notice.
If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole
or in part, the validity of the other provisions of these conditions and the remainder of the provisions in
question shall not be affected.
9. Assignment
Neither party may assign or transfer any of Its rights under this Agreement without the prior written consent
of the other party (such consent not to be unreasonably withheld).
10. Notices
All notices required under this Agreement shall be in writing and delivered personally, by first class registered
mail, internationally -recognized courier service, fax or electronic mail to the parties at the addresses set forth
below. All notices shall be deemed effective if (i) sent by registered mail, five (5) days after mailing; (ii) if
sent by private courier two (2) days after mailing; (III) if sent by person, fax or electronic mail, upon delivery.
To Amerex Brokers LLC
All other notices and other matters:
Amalia Berrios
VP and Senior Counsel
Amerex Brokers LLC
I Sugar Creek Center Blvd., Suite 700
Sugar Land, Texas 77478
Phone: 281-340-5212
Fax: 281-220-8374
Email: uhcrrioy(#,)eantar.ami
With a copy to:
Stephen M. Merkel, Esq.
Executive Managing Director and Chief Legal Officer
BGC Partners, Inc.
499 Park Avenue
New York, New York 10022
Tel: (212) 829-4829
Fax: (212) 829-4708
Email: SMerkel!irgintor.u,m
To Lubbock Power & Light
Attn: Joe Jimenez
Lubbock Power & Light
1314 Ave. K, 51h Floor
Lubbock, Texas 79401
11. Governing Law
Any disputes arising between Customer and Broker, and any disputes between the parties involving a
eounterparty matched or purportedly matched with Customer by Broker shall be resolved pursuant to good
faith efforts by such disputing parties. The parties shall first attempt to resolve the dispute by means of
negotiations between employees, subject to appropriate approvals by the parties. This Agreement shall be
governed by, construed and enforced in accordance with the laws of the State of Texas.
12. No Waiver
No waiver by either party hereto of any one or more defaults by the other in the performance of any of the
provisions of this Agreement shall operate or be construed as a waiver of any other default or defaults whether
of a like kind or a different nature.
13. Survival
Termination or expiration of this Agreement shall not relieve either party of its obligations set forth in Sections
3, 4 relating to confidentiality obligations, and 7.
14. Compliance with Law.
Broker shall comply with all applicable federal, state and local laws, ordinances and regulations.
15. Relatianship of the Partic-s.
Nothing in this Agreement shall be construed to: (i) give either party the power to direct or control the day to
day activities of the other; (ii) constitute the parties as partners; joint ventures, co -owners, or otherwise
participants in a joint and common undertaking; or (iii) constitute Broker, its agents or employees as the agents
of the Customer or to grant them any power or authority to act for, bind or otherwise create or assume any
obligation on behalf of the Customer for any purpose whatsoever.
16. Nan-A_pProariation
All funds for payment by Customer under this Agreement are subject to the availability of an annual
appropriation for this purpose by the City of Lubbock. In the event of non -appropriation of funds by the City
Council of the City of Lubbock for the services provided under this Agreement, Customer will terminate this
Agreement on the last day of the then -current fiscal year or when the appropriation made for the then -current
year for the services covered by this Agreement is spent, whichever event occurs first (the "Non -Appropriation
Date'. If at any time funds are not appropriated for the continuance of this Agreement, cancellation shall be
accepted by Broker on thirty (30) days' prior written notice, but failure to give such notice shall be of no effect
and Customer shall not be obligated under this Agreement beyond the Non -Appropriation Date.
17. Non-Boyeou of Israel
Broker hereby warrants that it is in compliance with Chapter 2271, Subtitle F, Title 10 of the Texas
Government Code by verifying that: (1) it does not boycott Israel and (2) it will not boycott Israel during the
term of this Agreement.
18. 'Texas Public Information Act
The requirements of Subchapter J, Chapter 552, Government Code, may apply to this Agreement and Broker
agrees that the Agreement can be terminated if Broker knowingly or intentionally fails to comply with a
requirement of that subchapter.
To the extent Subchapter J, Chapter 552, Government Code applies to this agreement, Broker agrees to:
(1) preserve all contracting information related to the Agreement as provided by the records retention
requirements applicable to the governmental body for the duration of the contract; (2) promptly provide
to the governmental body any contracting information related to the Agreement that is in the custody or
possession of the entity on request of the governmental body; and (3) on completion ofthe contract, either:
(A) provide at no cost to the governmental body all contracting information related to the Agreement that
is in the custody or possession of the entity; or (B) preserve the contracting information related to the
Agreement as provided by the records retention requirements applicable to the governmental body.
Intending to be legally bound hereby, the Customer and Broker have executed this Agreement as of the
Effective Date.
The City of Lubbock, acting by and
through the City Council
DANIEL M. POPE, MAYOR
ATTEST:
Beck Garza, City Secretary
APPROVED AS TO CONTENT:
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Jarrett A$inson, City Manager
APPROVED AS TO FORM:
Hunter Harrison, LP&L Electric Utility Attorney
ATTEST:
AS TO CONTENT:
DavidMcCalla, blectorofElectric Utilities
APPROVED AS TO FORM:
Hunter Harrison, LP&L Electric Utility Attorney
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