Loading...
HomeMy WebLinkAboutContract 35638 (2) CITY SECRETARY CONTRACT NO. ATMOS energy SHARE THE WARMTH AGREEMENT s ShF "_42007, th Agreement ("Agreement") is made, entered and effective as of the I his of ("Effective Date") by and between Atmos Energy Corporation, a Texas and Virgin' corporation ("Atmos") and City of Fort Worth Parks and Community Services Department("Agency"). BACKGROUND: Atmos and Agency recognize the need for providing charitable assistance to persons in financial distress to meet energy related costs essential to their health and welfare. Atmos has developed the Atmos Energy Share the Warmth Program ("Share the Warmth") as a supplement to government and community aid programs designed to assist persons in financial distress meet their energy related costs. Agency is organized, inter alia, to provide charitable assistance to persons in financial distress, and Agency recognizes that Share the Warmth is a program for providing charitable assistance to individuals. Atmos will act merely as a conduit for contributions made by others so that Agency and such other nonprofit charitable organizations can use and apply such contributions for the charitable purposes of the Share the Warmth Program in meeting the needs of the poor, disabled, sick and disadvantaged for gas service. AGREEMENT: In consideration of the mutual covenants hereinafter set forth, Atmos and Agency hereby agree as follows: 1. Share the Warmth Agency acknowledges that Atmos has established Share the Warmth and that said program is funded by voluntary contributions from Atmos, its customers, employees and third parties. Without limitation, Agency further acknowledges that the policies and procedures governing the collection and the disbursement of the funds contributed to Share the Warmth (the "Share the Warmth Funds") shall be established and may be modified by Atmos at its sole discretion. 2. Funds Atmos from time to time may allocate a portion of the Share the Warmth Funds to Agency, although Atmos shall have no obligation to do so. All funds so allocated will be disbursed to Agency in the manner determined by Atmos. Agency will use said funds as provided herein. Upon a termination of this Agreement, Atmos may request that Agency refund to Atmos all Share the Warmth Funds not designated for distribution by Agency as of the date of notice of the termination. Agency will forward payment to Atmos within thirty (30) days of receipt of Atmos' request. Atmos reserves the right to cease distribution of Share the Warmth funds to Agency at Atmos' discretion. 3. Fund Guidelines The Agency shall have the sole right to determine who receives the Share the Warmth Funds (such person being a "Beneficiary") subject, however, to the following conditions and restrictions: 3.1 Although a Beneficiary does not have to meet federal poverty income guidelines in order to be eligible to receive Share the Warmth Funds, such Beneficiary shall be a person experiencing financial hardship. In no event shall the Share the Warmth Funds be used for the personal gain of any employee, officer, or director of Agency, or any family members of the same. 3.2 A Beneficiary must be the named person or full-time resident on the gas account for which assistance is being requested. 3.3 Share the Warmth Funds may only be used to pay Atmos natural gas bills. 3.4 A Beneficiary will not be entitled to receive Share the Warmth Funds unless the Beneficiary has executed an information release form granting Atmos the right to share Beneficiary's payment history, account balance and other information with Agency and other parties. The release described above will be in the form attached hereto as Exhibit "A" and all original executed copies shall be kept on file at the offices of Agency. 3.5 All information received by Agency from Atmos with respect to a Beneficiary (including, without limitation, payment history, account balance, address and personal information) shall be treated as confidential information and shall not be disclosed to any third party, other than as may be required by law. 4. Share the Warmth Report 4.1 Atmos has developed a Web-based program to allow Agency and other charitable programs to pledge Share the Warmth Funds and other state and federal funds to a particular Beneficiary's account. The address of such website is: ham://www.atmosenerszy.com/. 2 Agency shall use the Web-based program to pledge and thereafter remit funds to Atmos in accordance with the rules established from time to time by Atmos with respect to such program. 4.2 In the event Atmos ceases to use the Web-based program for any reason, Agency agrees to complete a Share the Warmth Report in the form and content provided by Atmos (the "Share the Warmth Report") for each month during the term of this Agreement. The Share the Warmth Report shall be sent to Atmos no later than the tenth (loth) day of the month following the month for which the report was prepared. Atmos may from time to time amend the form, content and information requested in the Share the Warmth Report by providing thirty (30) day advance written notice to Agency. The monthly report is not required during periods when Agency does not have Share the Warmth Funds available to disburse to Beneficiaries. 5. Share the Warmth File Agency will maintain a file and record of each and every transfer of Share the Warmth Funds. Such file shall contain, without limitation,the following: 5.1 A copy of all checks evidencing monies received from Atmos or third parties or in conjunction with Share the Warmth; and 5.2 A copy of each completed Share the Warmth Report or a record of the amounts pledged on the Web-based program, as applicable. 6. Right to Audit Atmos and its designated agents, representatives, accountants and attorneys shall have full access, at all reasonable times, to the properties, books and records of Agency for examination of Agency's administration of Share the Warmth Funds and compliance with Section 7 below; provided however, this Section shall not be interpreted as granting Atmos the right to control how Agency determines which Beneficiaries will be entitled to receive Share the Warmth Funds or how Agency governs its day to day business. 3 7. Compliance with Codes Agency represents and warrants that either: 7.1 It is a state, county, or municipal agency whose primary function is to provide energy assistance to low income individuals (for example, Comprehensive Energy Aid Programs or CEAPs); or 7.2 It is and shall continue to be during the term of this Agreement an organization described in Section 501(c)(3) of the Internal Revenue Code and its Regulations as they now exist or as they may be amended from time to time (the "Code"), is exempt from federal income taxes under Section 501(a) of the Code, and contributions to Agency are deductible from federal income taxes of the donor, within limits and guidelines of Section 170 of the Code. Agency covenants and agrees that it will take no action or omit to perform any act that will prejudice its status under said provisions of the Code. Agency will immediately notify Atmos if at any time during the term of this Agreement any of the representations made in this Section cease to be true. 8. Non-exclusive Agreement Agency acknowledges that Atmos may enter into one or more agreements with other charitable organizations, including charitable organization located within Agency's service area, pursuant to which such organization will be eligible to participate in Share the Warmth. 9. Term and Termination The term of this Agreement will begin upon execution of the Agreement and end December 31, 2007 with two, one-year renewal options. Either Agency or Atmos may terminate this Agreement, with or without cause, upon thirty (30) days written notice to the other party. 10. Miscellaneous 10.1 Governing Law. This Agreement will be governed by the laws of the State of Texas without regard to conflicts of laws principles. 10.2 Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by either party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege. No single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c)no notice to or demand on one party will be deemed to be a waiver of any obligation of 4 such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement. 10.3 Binding Effect; Delegation of Duties Prohibited. This Agreement inures to the benefit of, and is binding upon, the parties hereto and their respective successors, assigns, heirs and legal representatives, including any entity with which the Atmos may merge or consolidate or to which all or substantially all of its assets may be transferred. The duties and covenants of the Agency under this Agreement, being personal, may not be delegated. 10.4 Notices. Whenever it is provided in this Agreement that any notice, demand, request, consent, approval, declaration or other communication be given to or served upon any of the parties by another, such notice, demand, request, consent, approval, declaration or other communication will be in writing and will be deemed to have been duly given (i) when received if personally delivered, (ii) when transmitted if transmitted by telecopy (except that telecopies transmitted after 5:00 p.m. in the recipient's time zone will be deemed delivered the next business day), electronic or digital transmission method, (iii)the business day after it is sent, if sent for next business day delivery to a domestic address by a nationally recognized overnight delivery service (i.e. Federal Express) and (iv) three business days after it is sent, if sent by certified or registered mail, return receipt requested. In each case notice will be sent to: If to the Atmos: Atmos Energy Energy Assistance Group 1400 West Loop 340 Waco, Texas 76712 If to Agency: City of Fort Worth Parks and Community Services Department Community Services Division 4200 South Freeway, Suite 2200 Fort Worth, Texas 76115-1499 or at such other address as the intended recipient will from time to time designate by written notice delivered in accordance herewith. 10.5 Entire Agreement; Amendments. This Agreement contains the entire agreement between the parties with respect to subject matter hereof and supersedes all prior agreements and understandings, oral or written, between the parties hereto with respect to the subject matter hereof. This Agreement may not be amended orally, but only by an agreement in writing signed by each of the parties hereto. 10.6 Section Headings and Construction. The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to "Section" refer to the corresponding Section of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word "including" does not limit the preceding words or terms. 5 10.7 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. 10.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date above first written above. ATMOS ENERGY CORPORATION CITY OF FORT WORTH a Texas and Virginia corporation Gean Harless Libby Wa son Energy Assistance Program Manager Assistant City Manager ATTEST: City Secretary APPROVED AS TO FORM AND LEGALITY: By: �''� .Gw enita Harper, Assistant City Attorney ont ct A.Uthorizatiost Date f 1'' ]'d aSi�C� fiC 85379.010000 DALLAS 86513v2 i�i �'t5VU1��) YbGte Agreement Concerning the Use of Account Information And Release of Atmos Energy Corporation Share the Warmth Program You have requested financial assistance from an agency (an "Agency") that participates in the Share the Warmth program (the "Program") sponsored by Atmos Energy Corporation ("Atmos Energy"). Your eligibility to obtain financial assistance from the Program(the"Share the Warmth Funds")is conditioned upon your acceptance of the terms and conditions contained or referenced in this agreement (the "Agreement"). Please read this Agreement carefully. Sharing of Customer Information By accepting the terms of this Agreement, you are authorizing Atmos Energy to share your customer information with an Agency to facilitate the pledge of Share the Warmth Funds to your Atmos Energy account. The customer information that Atmos Energy will share with an Agency may include your current and former name(s),account number,payment history, street address,gas usage,and any other information Atmos Energy may have in its possession. This may include information that you consider confidential or private. All Customer information referred to in the preceding sentence is defined as the "Customer Information." Release and Indemnity YOU AGREE TO RELEASE, INDEMNIFY, DEFEND AND HOLD ATMOS ENERGY, ITS AGENTS,EMPLOYEES,OFFICERS,DIRECTORS AND AFFILIATES HARMLESS FROM ALL LIABILITIES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY'S FEES, FROM CLAIMS RELATING TO OR ARISING UNDER THE PROGRAM OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE DISCLOSURE OF YOUR CUSTOMER INFORMATION TO AN AGENCY, OR AN AGENCY'S SUBSEQUENT USE AND/OR DISCLOSURE OF YOUR CUSTOMER INFORMATION. THIS RELEASE AND INDEMNIFICATION WILL SURVIVE THE TERMINATION OF THIS AGREEMENT AND/OR THE SHARE THE WARMTH AGREEMENT. Limitation of Liability ATMOS ENERGY SHALL NOT BE LIABLE TO YOU IN ANY WAY FOR DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, ACTUAL, DIRECT, COMPENSATORY, SPECIAL, INCIDENTAL, EXEMPLARY, LOST PROFITS, LOSS OF REVENUE, AND/OR CONSEQUENTIAL DAMAGES ARISING OUT THE PROGRAM OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE DISCLOSURE OF YOUR CUSTOMER INFORMATION TO AN AGENCY, OR AN AGENCY'S SUBSEQUENT USE AND/OR DISCLOSURE OF YOUR CUSTOMER INFORMATION. Reservation of Rights Atmos Energy reserves the right to modify in part or in whole, or temporarily or permanently discontinue the Program for any reason and at anytime without notice. Jurisdiction This Agreement shall be construed in accordance with the laws of the state of Texas. All disputes arising from your use of this Website or under this Agreement, shall be resolved in a court located in Dallas County,Texas,without reference to conflict of laws or choice of laws statutes. ACC D AND AGREED: Printed Name: ibby Watson Assistant City Manager Page 1 of 1 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 5/29/2007 DATE: Tuesday, May 29, 2007 LOG NAME: 80ATMOS06 REFERENCE NO.: **C-22149 SUBJECT: Authorize Execution of an Agreement with Atmos Energy for the "Share the Warmth" Program RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute an agreement with Atmos Energy for the Share the Warmth Program to commence upon execution of the Agreement and to end December 31, 2007 and to include two renewal options for one year each. DISCUSSION: Atmos Energy has developed the "Share the Warmth" Program as a supplement to government and community programs designed to assist persons in financial distress to meet their gas utility related costs. The Program is funded by donations from residents and matching funds from Atmos Energy. The Community Action Partners (CAP) received these donated funds to administer the program in Tarrant County in FY 2005-06. For the current FY 2006-07, the CAP will again administer the program and receive an estimated $100,000. The CAP provides assistance to persons in need based on a set of criteria. A budget appropriation for this anticipated donation was included in the Special Fund FY 2006-07 Adopted Budget. The term of the agreement will begin upon execution of the agreement and end December 31, 2007 with two, one-year renewal options. This program serves ALL COUNCIL DISTRICTS FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that upon approval of the above recommendations, funds will be available in the current operating budget, as appropriated, of the Special Trust Fund. TO Fund/Account/Centers FROM Fu nd/Accou nt/C enters FE72 535010 0803537000000 $100,000.00 Submitted for City Manager's Office by: Libby Watson (6183) Originating Department Head: Melody Mitchell (Acting) (5704) Additional Information Contact: Jan McMullen (392-1637) http://www.cfwnet.org/council_packet/Reports/mc_print.asp 8/6/2007