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HomeMy WebLinkAboutContract 28300 f CONE'A( No. 3 ELECTRIC STREET LIGHT AGREEMENT BETWEEN DENTON COUNTY ELECTRIC COOPERATIVE, INC., D/B/A COSERV ELECTRIC AND THE CITY OF FORT WORTH, TEXAS This Agreement is made effective this inn day oflkfh►�r2002 (the "Effective Date") by and between Denton County Electric Cooperative, Inc., d/b/a CoSery Electric (hereinafter called "DCEC"), a Texas corporation, with its principal place of business at 7701 South Stemmons, Corinth, Texas 76210, and the City of Fort Worth (hereinafter called "City"), with its principal place of business at 1000 Throckmorton, Fort Worth, Texas 76102. WHEREAS, DCEC and City are parties to discussions that resulted in agreements in principle concerning City-owned street light facilities being connected to DCEC electrical distribution systems, and for the installation, ownership, operation and maintenance of street lights by DCEC within the City of Fort Worth; and WHEREAS, discussions contemplated that both parties shall enter into a definitive agreement that allows the City the right and privilege to connect its own street lighting conductors to DCEC' s electric system and allows DCEC the right and privilege to install, own, operate and maintain its own street lights within the City of Fort Worth; and WHEREAS, DCEC and the City desire to enter into this agreement in order to facilitate the lighting of City's public streets and right-of-way; and WHEREAS, DCEC and the City acknowledge and agree that DCEC's Tariff for Electric Service, as amended from time to time and approved by DCEC's board of directors (hereinafter called the "Tariff'), is hereby made a part of this Agreement and is on file and available at DCEC's offices in Corinth, Texas. NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions herein contained, the parties hereto do hereby mutually covenant and agree as follows; I. Rights Granted. A. DCEC shall permit, pursuant to the terms of this Agreement and the Tariff, the connection of City-owned and maintained street lighting conductors to DCEC's overhead secondary electric lines. Said secondary electric lines are defined as 600 volts or less. B. DCEC shall permit, pursuant to the terms of this Agreement and the Tariff, the connection of City-owned and maintained street lighting conductors to t r V _ t � L DCEC's underground pedestals, hand holes, and pad-mounted transformers. C. City hereby grants to DCEC the right and privilege to install, own, operate and maintain public street lighting facilities within the city limits of the City of Fort Worth (hereinafter called "DCEC Street Lights"). D. DCEC hereby grants City the right to approve or disapprove in writing, prior to installation by DCEC, the location, type of lamp (high pressure sodium, mercury vapor, or metal halide), the wattage, the quantity and style of fixtures installed by DCEC for DCEC Street Lights. E. DCEC will obtain written approval from City prior to the installation of any DCEC Street Lights by DCEC per the request of the City and/or per the request of a developer. DCEC shall not install DCEC Street Lights without prior City written approval. DCEC will submit to City engineering drawings and/or specification sheets indicating the location and type of street lighting poles, arms, fixtures, wattage, and lamps to be used for City written approval. II. Operations Procedures. A. City will provide DCEC 48 hours advance notice of any City street light ready for initial connection to any DCEC facilities or lines. DCEC shall make all connections within 7 calendar days after having been so notified that streetlights are ready for connection. City shall pay DCEC the charges for such service by DCEC according to the Tariff. B. Initial connection or re-connection to energize the City street light conductor will be performed by DCEC. C. City will provide DCEC reasonable advance notice should City perform maintenance work on City street light equipment or facilities. D. City will request DCEC to assist in work that may require DCEC expertise, knowledge, or experience, provided that DCEC shall not be required to incur and cost or expense, and shall have no obligation to perform any work pursuant to such request. E. City is not authorized to perform, and shall not perform, any work on or in, or gain any access to or make any connections to, any DCEC-owned equipment, lines or facilities, such as transformers, pedestals, hand holes and cabinets. DENTON COUNTY ELECTRIC COOPERATIVE,INC STREET LIGHT AGREEMENT Page 2 of 13 . V F. City will provide DCEC in writing a list of the locations, number of lights, wattage of lights, and type of lamps prior to City's commencement of construction. G. DCEC will own, operate and maintain all streetlights installed by DCEC. DCEC and City agree that DCEC will install conduit and foundations for up to 38 streetlights in the Harriett Creek Ranch residential development and City will install the remaining portions of the streetlighting facilities, and City will own, operate and maintain such streetlights. H. City will own, operate and maintain all streetlights installed by City. III. Electric Rates and Tariffs DCEC will bill City in accordance with rates from time to time in effect pursuant to the Tariff. As of the date of the execution of this agreement, the rates are as follows: A. DCEC owned and maintained street lights: Light charge per wattage per month 100 watt $ 8.80 150 watt $ 8.80 175 watt $ 8.80 200 watt $10.85 250 watt $11.50 400 watt $15.45 B. City owned and maintained street lights; non-metered: Light charge per wattage per month 100 watt $ 3.95 150 watt $ 5.10 175 watt $ 5.70 200 watt $ 6.25 400 watt $ 10.85 DENTON COUNTY ELECTRIC COOPERATIVE,INC STREET LIGHT AGREEMENT Page 3 of 13 C. City owned and maintained street lights; metered: Customer Charge $ 15.00 per meter Energy Charge $0.05778 per Kwh. IV. Indemnification: A. For streetlights installed by the City, in so far as permitted by law, City hereby agrees to indemnify, and hold harmless DCEC, its members, directors, officers, affiliates, employees, partners, representatives, agents, contractors, successors and assigns (collectively, "DCEC Indemnitees"), from any and all claims, actions, or causes of action to the extent any claimed loss or damage arises out of City's negligence, negligent performance, or nonperformance of work, whether any such claims, actions, or causes of action are alleged to be the results of any act or omission of any DCEC Indemnitee, regardless of the fact that the work may have been completed and/or accepted by DCEC and regardless of the fact any DCEC Indemnitee may have assisted with the work. B. Nothing contained herein shall require City to assess, levy, or collect a tax to fund this indemnification provision. C. For Public Street Lights installed by DCEC as contemplated by this Agreement, DCEC shall indemnify, defend and hold harmless City from any and all claims, actions, or causes of action to the extent any claimed loss or damage arises out of DCEC's negligence, negligent performance, or nonperformance of work. V. Force Majeure: Neither DCEC nor City shall be liable for situations due to force majeure. "Force Majeure" shall mean caused beyond the reasonable control of the party claiming force majeure, including, but not limited to, any failure of facilities or ability to supply service caused by fires, floods, lighting, storms, unusually sever weather conditions or other acts of God, acts of any government or governmental authority, acts of public enemy, acts of other parties, including vendors or contractors and their respective employees or agents, strikes, embargoes, or any other condition beyond the control of either DCEC or City. In the event of any such contingency, the parties shall be given a reasonable period of time in which to complete the performance of their obligations. DENTON COUNTY ELECTRIC COOPERATIVE,INC. STREET LIGHT AGREEMENT Page 4 of 13 VI. Inspection of work DCEC may maintain inspectors at the job site, and to further assure compliance with the plans and specifications and maintain quality of construction, may, after reasonable notice to City, from time to time request operational tests by, or on behalf of City on the work or a portion of portions thereof selected by DCEC. Notwithstanding DCEC's rights under this Section VI, DCEC shall have no responsibility or liability for, and City shall be responsible and liable for, the method or manner by which the work is to be performed. City has sole authority, responsibility, and control over the method and manner in which the work of City is to be performed. DCEC shall have the right to notify City of any non- compliance, and shall have the right to deny connection to, or to disconnect existing service within a reasonable time after such written notification to City from, DCEC facilities and service until the items of non-compliance are corrected to DCEC reasonable satisfaction. VII. Defects in Work: City shall correct at its expense all defects and deficiencies in the work which result from labor or material furnished by City, workmanship, or failure to follow the plans, drawings standards or other specifications made a part of this agreement. Acceptance of the work by DCEC shall not constitute a waiver of any such defects or deficiencies. DCEC shall notify City in writing of any defects and deficiencies and if City has fails to remedy or make arrangements satisfactory to DCEC to remedy such defects within 5 business days from receipt of notice, DCEC may, but shall have no obligation to, correct such deficiencies and City shall pay DCEC the reasonable cost of making such corrections. In the alternative, DCEC may deny connection to, or disconnect existing service within a reasonable time after such written notification to City from, DCEC facilities and service until the items of non-compliance are corrected to DCEC reasonable satisfaction. VIII. Duty of Safe Performance: City shall at all times take all reasonable precautions to protect all persons and property, including property of DCEC from injury arising out of the performance of City's work. City shall make such inspections, safety checks, and tests, and shall provide such equipment, personnel, and supervision as is necessary to insure the safe performance the work. IX. Service Pipes and Underground Structures: City, at its own expense, shall locate or request location of any pipes, conduits, or other underground structures or conductors which are in the way of the construction, whether or not any work plans omit to show or purport to show their DENTON COUNTY ELECTRIC COOPERATIVE,INC STREET LIGHT AGREEMENT Page 5 of 13 locations. City shall repair all such property damaged in the course of the work in a manner satisfactory to DCEC. X. Notification of Injury or Damage City shall promptly notify DCEC of any injury, death, loss, or damage to persons, animals, or property which is in any way related to the work performed under this agreement, even though such occurrence was not caused or contributed to by DCEC or the contractor's employees and agents. XI. Damage of DCEC' s Facilities Should City damage or cause to be damaged any DCEC facilities during the course of City's work, City shall be responsible for and hereby agrees to compensate DCEC for the reasonable cost(s) incurred by DCEC in making such repairs. XII. Laws and regulation City shall comply with all federal, state, and municipal laws, ordinances, regulations, national electric safety code, and any DCEC requirement that are part of DCEC's operating certificate. XIII. Standards of Work A. City shall furnish and be responsible for all supervision, labor, tools, equipment, power, transportation, material, and supplies required to perform the work, except those items that will be furnished by DCEC. B. City shall submit to DCEC documentation showing the specifications of its materials that will be connected to DCEC' s electric system. DCEC reserves the right to change or revise or upgrade any material it finds to be substandard. C. All City streetlight conductors connected to DCEC system shall be fused and ampere rating fuse curve characteristics shall be subject to approval by DCEC. DENTON COUNTY ELECTRIC COOPERATIVE,INC STREET LIGHT AGREEMENT Page 6 of 13 XIV. Terms A. The initial term of this agreement shall be for ten (10) years from the effective date hereof or one hundred twenty (120) days after DCEC enters into the deregulated market, which ever occurs first. B. After expiration of the initial term, this agreement shall automatically renew each year there after for an additional one (1) year term, unless either party provides the other written notice not to renew the agreement at least ninety (90) days prior to end of the initial term or one-hundred twenty (120) days prior to the end of a renewed term. XV. Warranty and Limitations Except as expressly provided herein, DCEC make no warranty, expressed or implied, including any warranty of merchantability or fitness for a particular purpose with respect to any DCEC facilities. In no event shall DCEC be liable to City or its agents or any third party for any indirect, special, or consequential changes, including without limitation, those in loss of revenue, profits or business opportunity. XVI. Maintenance and Repair A. City shall be responsible for all maintenance and repair of the City owned street light facilities. B. DCEC shall be responsible for all maintenance and repair of DCEC owned street light facilities. XVII. Ownership A. City owned street lighting facilities shall at all times remain the property of City. DCEC shall not represent to any third party that any party other than City is the owner of the streetlights appurtenances. B. The DCEC electric system shall at all time remain the property of DCEC. City shall not represent to any third party that any party other than DCEC is the owner of the DCEC electric system. C. The DCEC owned street light facilities shall at all time remain the property of DCEC. City shall not represent to any third party that any party other than DCEC is the owner of the DCEC owned street light facilities. DENTON COUNTY ELECTRIC COOPERATIVE,INC STREET LIGHT AGREEMENT Page 7 of 13 XVIII. Default: Neither party shall be in default under this agreement or in breach of any provisions hereof unless and until such party has been given written notice of such default by the other party and shall have failed to cure such default within sixty (60) days after receipt of such notice. Any default shall be cured within thirty (30) days after receipt of notice. Where a default other than for payment can not reasonably be cured within thirty (30) days, if the defaulting party shall proceed promptly to cure the same and prosecute such cure with due diligence, the time for curing such default shall be extended for such period as may be reasonable necessary to complete such cure. Upon the failure to cure any such default within the above periods, the party giving notice of the default may thereupon terminate this agreement. Upon default by either party, the non-defaulting party shall have the right to pursue any or all remedies available at law and/or equity, except neither party shall be liable to the other party or its agents or any third party for any indirect, special, or consequential changes, including without limitation, those in loss of revenue, profits or business opportunity. Should City fail to pay for electric service, DCEC has the right to disconnect electric service to City's streetlights as outlined in the Tariff. XIX. Termination A. In the event that CITY (i) is more than thirty days past due in paying any DCEC invoice pursuant to its terms or (ii) files or initiates proceedings or has proceedings filed or initiated against it, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law, than DCEC shall have the right to terminate this agreement upon thirty (30) days written notice to City. B. Upon the expiration or termination of this Agreement, City shall, at its sole cost and expense, remove the City equipment and any other of its personal property from DCEC's premises. City shall repair any and all damage to DCEC premises caused by the removal of City equipment. Any City equipment not removed within 60 days after the expiration or termination of this Agreement shall, at the option of DCEC, be deemed to be property of DCEC.In any event, DCEC may remove the equipment and repair any damage to DCEC premises, all at City expense. In no event shall DCEC be liable for any ownership, operation or maintenance of any such items unless DCEC expressly asserts ownership thereof in writing. XX. Miscellaneous A. Notices, all notices, request, demands, applications, services of process, and other communications that are required to be or may be given under this DENTON COUNTY ELECTRIC COOPERATIVE,INC. STREET LIGHT AGREEMENT Page 8 of 13 r agreement shall be in writing and shall be deemed to have been duly given if sent by telecopy or facsimile transmission, delivered by courier or mailed, certified first class mail, postage prepaid, return receipt requested, to the parties hereto at the following addresses To City: Director Of Transportation And Public Works 1000 Throckmorton Fort Worth, Texas 76102 Telephone: 817- 871- 7800 Facsimile: 817- 871- 8092 To DCEC: Denton County Electric Cooperative, Inc. 7701 South Stemmons Corinth, Texas 76210 Attn: Michael Laurer Telephone: 940-270-6646 Facsimile: 940-270-6646 or such other address as any party shall have furnished to the other by notice given in accordance with this section. Such notices shall be effective, (i) if delivered in person or by courier, upon actual receipt by the intended recipient, or (ii) if sent by telecopy or facsimile transmission, upon confirmation of receipt (iii) if mailed, upon the earlier of three days after deposit in the mail and the date of delivery as shown by the return receipt thereof. B. Assignment. Neither party shall assign or transfer its rights or obligations associated with this agreement, in whole or in part, without the other party's prior written consent, which shall not be unreasonably withheld or delayed. C. Waivers. No covenant, term, or condition, or the breach thereof, shall be deemed waived, except by written consent of the party against whom the waiver is claimed. Any waiver of the breach of any covenant, term, or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term, or condition. Acceptance of any performance after the time the same shall have become due shall not constitute a waiver by the accepting party of the breach or default of any covenant, term, or condition, unless otherwise expressly agreed to by the accepting party. D. Attorney's Fees. In the event a suit is brought or an attorney is retained by any party to the agreement to enforce the terms of this agreement or to collect any money as due herein or to collect any money damages for the breach hereof, the prevailing party shall be entitled to recover, in addition to any other remedy, reasonable attorneys fees, court cost, cost of investigation and other related expenses incurred in connection therewith DENTON COUNTY ELECTRIC COOPERATIVE,INC STREET LIGHT AGREEMENT Page 9 of 13 E. Heading and Attachments. The section and other headings contained in this agreement are for reference purposes only and will not affect the meaning or interpretation of the agreement. Reference to exhibits shall refer to exhibits attached to this agreement, which shall be incorporated in and constitute a part of the agreement by such reference. F. Entire Agreement: Amendments. This agreement embodies the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior representations, agreements and understandings, oral or written, with respect thereto. This agreement may not be modified orally, but only by an agreement in writing signed by each party. G. Severability. Any term or provision of this agreement that is invalid or unenforceable shall be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this agreement. H. Governing Law and Venue. The validity, performance, and enforcement of this agreement shall be governed by and construed in accordance with the laws of the State of Texas without giving effect to the principles of conflicts of law of such State. Venue shall lie exclusively in Tarrant County, Texas. I. Counterparts. This agreement may be executed in any number of counterparts, each of which shall be considered an original, and all of which together shall be deemed to be one and the same instrument. J. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. DENTON COUNTY ELECTRIC COOPERATIVE, INC STREET LIGHT AGREEMENT Page 10 of 13 XXI. Execution: IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the date first above written Denton County Electric Cooperative, Inc. City of Fort Worth d/b/a COSERV ELECTRIC By: �i � B - r Name: �w�*:s �? 'iT;ytt M rc tt Title: - =or Vic:. i-r-s-dent - Enerm� e gees Assist nt City Manager Attest: 2 Gloo Pearson City Secretary (� 0 Approved as to Form and Contract Authorization Legality: j Date Assistant City Attorney o .. DENTON COUNTY ELECTRIC COOPERATIVE,INC STREET LIGHT AGREEMENT Page 11 of 13 Notary Acknowledgement THE STATE OF TEXAS § COUNTY OF TARRANT § Before me, the undersigned authority, on this day personally appeared Marc Ott, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same on behalf of the City of Fort Worth for purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS !� ' day of 2002. E,a,- :771 BARNES PUBLIC Texas Notary Public in and for the 3-31-2005 State of Texas My Commission Expires e 3-3 1- os DENTON COUNTY ELECTRIC COOPERATIVE,INC STREET LIGHT AGREEMENT Page 12 of 13 Notary Acknowledgement THE STATE OF TEXAS § COUNTY OF DENTON § Before me.� the undersigned authority, on this day personally appeared '0� 1'�*S , "::6L �"--�' ��v-Yr �u'lce of Denton County Ejktric Cooperative, Inc., d/b/a Cosery Elebtric, knowd to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same on behalf of Denton County Electric Cooperative, Inc., d/b/a Cosery Electric, for purposes and consideration therein expressed. IVEN UNDER MY HAND AND SEAL OF OFFICE THIS d f 2002. Z.l / Nota blic in and fokhe State of Texas My Commission Expires C� 0%%jj"" RAM0S �``��Qo�'y•Pue48•'• :a DENTON COUNTY ELECTRIC COOPERATIVE, INC STREET LIGHT AGREEMENT Page 13 of 13