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HomeMy WebLinkAboutContract 43572 (2)ENE cJF1CRETARY 2,-«-:owiciliNiAcer NO. „., II ??. . . I - GY AM ACRE IIE,MENT JB K'l'W 1IC IEN 'III u: CITY Y OF FORT W®RI` IFI AND TXU ENE I' GY REli' A IIL C(1)1VIPANY, I ,J . This Energy Aid Agreement ("Agreement") is made, entered and effective as of it) day of `5ek.vv l , , 2012 ("Effective Date"), by and between TXU Energy Retail Company, L.P. on behalf of itself and its affiliated companies ("Company"), acting by and through its duly authorized agent from TXU Energy Management Company, LLC, its General Partner, and the City of Fort Worth ("City"), a home -rule municipal corporation located in Tarrant, Denton and Wise Counties, acting by and through its duly authorized Assistant City Manager, RECITALS Company and City recognize the need for providing charitable assistance to persons in financial distress to meet energy -related costs essential to those individuals' health and welfare. Company has developed the TXU Energy Aid Program ("Energy Aid") as a supplement to government and community aid programs designed to assist persons in financial distress to meet their energy related costs. The City's Parks and Community Services Department receives certain grant funds and Comprehensive Energy Assistance Program funds administered through its Community Action Partners ("CAP") and serves as the Community Action Agency for Tarrant County. CAP provides comprehensive services to economically disadvantaged individuals, families, and the elderly residing in Tarrant County and strives to empower participants to become and remain self-sufficient. City recognizes that Energy Aid is a program for providing charitable assistance to individuals that helps to fulfill the purposes of the CAP. Company will act merely as a conduit for contributions made by others so that the City, CAP, and other nonprofit charitable organizations can use and apply such contributions for the charitable purposes of Energy Aid in meeting the needs of the poor, disabled, sick and disadvantaged for electricity service. AGREEMENT In consideration of the mutual covenants hereinafter set forth, Company and City hereby agree as follows: L Energy Aid City acknowledges that Company has established Energy Aid and that said program is funded by voluntary contributions from Company, its customers, employees and third parties. Without limitation, City further acknowledges that the policies and procedures governing the collection and the disbursement of the funds contributed to Energy Aid (the "Energy Aid Funds") Energy Aid Agreement Between The City of Fort Worth and TXU Energy Retail Company, L P 09-07-1 2 PO4:20 IN IF;;P)- .11 II Tf7 2N(Tiaririr8,12V r,. -� SUITI� 1f( -�c c� 1�1 tI;1 1kli1`f'. ;MITI \ 11 II J u lei shall be established and may be modified by Company, at its sole discretion. However, prior to initiating any modification to the policies and procedures, Company agrees to notify the City within a reasonable time so that the City may have input and account for any potential effects to its own program. 2. Funds Nothwithstanding any other provision of this Agreement to the contrary, the total of all payments by Company under this Agreement shall not exceed the sum of $450,000.00. Company from time -to -time will allocate a portion of the Energy Aid Funds to City for use by CAP All monies so allocated will be either in the form of a credit or payment to City. City will use said funds as provided herein Company reserves the right to request that City refund to Company all Energy Aid Funds not distributed by City If the Energy Aid Funds were paid directly to City, the City will forward payment to Company within thirty (30) days of receipt of Company's request. Company reserves the right to cease distribution of Energy Aid Funds to City at Company's discretion with thirty (30) days notice. 3. Fund Guidelines 3.1 A person seeking assistance (a "Beneficiary") from City does not have to meet federal poverty income guidelines in order to be eligible to receive Energy Aid Funds. 3.2 A Beneficiary must be the named person or full-time resident on the electric account for which assistance is being requested 3.3 Energy Aid Funds may only be used to pay Company electricity bills. 3.4 A Beneficiary will be entitled to receive Energy Aid Funds only one (1) time per calendar year, provided, however, City may, on a case -by -case basis, make exceptions for specific Beneficiaries, if in City's reasonable opinion such exceptions are warranted given the circumstances. 3.5 A Beneficiary will not be entitled to receive Energy Aid Funds unless the Beneficiary has executed an information release form granting City the right to contact third parties in order to obtain information regarding the Beneficiary. 4. Energy Aid Monthly Report City will complete the Energy Aid Monthly Report attached hereto and return the same to Company no later than the tenth (10 ) day of the month following the month for which the report is being submitted. Company may from time -to -time amend the form, content and information requested in the Energy Aid Monthly Report by providing thirty (30) days' advance written notice to City. Energy Aid Agreement Between The City of Fort Worth and TXU Energy Retail Company, L.P. 2 of 6 5. Energy Aid File City will maintain a file and record of each and every transfer of Energy Aid Funds. Such file shall contain, without limitation, the following* (i) A copy of all checks evidencing monies received from Company or third parties or in conjunction with Energy Aid; and (ii) A copy of each completed Energy Aid Report. 6. Right to Audit Company and its designated agents, representatives, accountants and attorneys shall have full access, at all reasonable times, to the properties, books and records of City and CAP for examination of City's and CAP's administration of Energy Aid Funds; provided however, this Section shall not be interpreted as granting Company the right to control how City determines which Beneficiaries will be entitled to receive Energy Aid Funds or how City governs its day-to- day business. 7. Non-exclusive Agreement City acknowledges that Company may enter into one or more agreements with other charitable organizations, including charitable organization located within City's service area, pursuant to which such organization will be eligible to participate in Energy Aid. 8. Term and Termination This Agreement shall begin on the Effective Date and expire on December 31, 2014, unless earlier terminated. Either City or Company may terminate this Agreement, with or without cause, upon thirty (30) days written notice to the other party. 9. Miscellaneous 9.1 Governing Law. This Agreement will be governed by the laws of the State of Texas without regard to conflicts of laws principles. 9.2 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 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. Energy Aid Agreement Between The City of Fort Worth and TXU Energy Retail Company, L.P. 3 of 6 9.3 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 Company may merge or consolidate or to which all or substantially all of its assets may be transferred. The duties and covenants of the City under this Agreement, being personal, may not be delegated. 9.4 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, (nl) 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 Company: TXU Energy Energy Assistance Group P. O. Box 650257 Dallas, TX 75265-0257 1-800-645-4601 1-800-556-6753 (fax) If to City: City of Fort Worth Parks and Community Services Department Community Action Partners 4200 South Freeway, Ste 2200 Fort Worth, TX 76115-1499 817-392-5774 817-392-5776 (fax) or at such other address as the intended recipient will from time to time designate by written notice delivered in accordance herewith. 9.5 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. 9.6 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 Energy Aid Agreement Between The City of Fort Worth and TXU Energy Retail Company, L.P. 4 of 6 gender or number, as the circumstances require. Unless otherwise expressly provided, the word "including" does not limit the preceding words or terms. 9.7 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. 9.8 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 9.9 Venue and Jurisdiction. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division This Agreement shall be construed in accordance with the laws of the State of Texas. 9.10 Signature Authority. The person signing this Agreement hereby warrants that he or she has the legal authority to execute this Agreement on behalf of his or her respective Party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The other Party is fully entitled to rely on this warranty and representation in entering into this Agreement 9.11 Review of Counsel. 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 diafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. 9.12 Authorization By executing this Agreement, Company's agent affirms that he or she is authorized by the Company to execute this Agreement and that all representations made herein with regard to Company's identity, address, and legal status (corporation, partnership, individual, dba, etc.) are true and correct. 9.13 Independent Contractor. It is expressly understood and agreed that City shall operate as an independent entity in each and every respect hereunder and not as an agent, representative, or employee of the Company. City shall have the exclusive control and the exclusive right to control all details and day-to-day operations and activities relative to operation of the City and shall be solely responsible for the acts and omissions of its officers, agents, servants, and employees. City acknowledges that the doctrine of respondeat superior shall not apply as between the City and Company, its officers, agents, servants, employees, contractors, subcontractors, licenses, and invitees Nothing contained in this Agreement shall be construed as the creation of a partnership or Joint enterprise between the City and Company. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Energy Aid Agreement Between The City of Fort Worth and TXU Energy Retail Company, L.P. 5 of 6 IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date above first written above. TXU ENERGY RETAIL COMPANY, L.P. By: TXU Energy Management Company, LLC, Its General Partner By: I,(A Kim Campbell, an at thorized agent Senior Manager, Customer Advocacy OFFICIAL ri-EC ;RD CITY slf Ft WO TC19�' • CITY OF FORT WORTH By: V, san Alanis ssistant City Manager APPROVED AS TO FORM AND LEGALITY: Tyler F. Wagach Assistant City Attorney ATTESTED BY: Mary J. Kayser City Secretary Contract Authorization: M&C: C-25742 Date: July 17, 2012 Energy Aid Agreement Between The City of Fort Worth and TXU Energy Retail Company, L.P. Atiebt OF Pe% Celt 000 000004 6 of 6 i oiLd Kcvlew Page 1 of l Official site of the City of Fort Worth, Texas CITY COUNCIL AGENDA FORTWORTII COUNCIL ACTION: Approved on 7/17/2012 - Ordnnanco No. 20291-07-2012 DATE: 7/17/2012 R—rFERENCE Na: ; C-25742 LOG NAIVE: CODE: C TYKE: CONSENT FU SIC NO HEARING: SUBJECT: Authorize Execution of an Agreement with TXU Energy Retail Company, L.P., in the Amount Up to $450,000.00 for the Energy Aid Program and Adopt Appropriation Ordinance (ALL COUNCIL DISTRICTS) SOFA XU2©12-ENERGY AID RECOMMENDATION: TION: It is recommended that the City Council: 1. Authorize the execution of an Agreement with TXU Energy Retail Company, L.P., in the amount up to $450,000.00 for the Energy Aid Program through December 31, 2014; and 2. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in the Grants Fund in the amount of $450,000,00. DISCUSSION: TXU Energy Retail Company, L.P. (TXU Energy), has developed the Energy Aid Program as a supplement to government and community aid programs designed to assist persons in financial distress to meet their energy -related costs. Since 2004, the City of Fort Worth Parks and Community Services Department's Community Action Partners Program, an Energy Aid Program recipient, has received funds from TXU Energy to assist low-income TXU Energy customers with their electric bills. A total of 4,455 Tarrant County households have been assisted under this program with grant funds totaling $1,263,152.00. It is projected that under this new Agreement, up to 1,580 qualified households will receive assistance. This Agreement will begin upon execution and expire on December 31, 2014. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that upon approval of the above recommendations and adoption of the attached appropriation ordinance, funds will be available in the current operating budget, as appropriated, of the Grants Fund. TO Fund/Account/Centers GR76 451999 080499569000 $450.000.00 GR76 5XXXXX 080499569XXX $450,000.00 FROM Fund/Account/Centers Submitted for Citv Manaciers Office bv: Susan Alan's (8180) Oriciinatina Deoarrtment Head: Richard Zavala (5704) Additional Information Contact: Sonia Singleton (5774) AT-TACUMVM!NTS BOTXU2O12-ENERGY AID AO12 (revised).doc http: //apps. cfwnet. org/council packet/xnc_revtew. a.sp?ID=16805&counci ldate-7/ 17/7()17 17/eln/nni n Ordinance No. AN ORDINANCE INCREASING THE ESTIMATED RECEIPTS AND APPROPRIATIONS IN THE GRANTS FUND IN THE AMOUNT OF $450,000 00, SUBJECT TO RECEIPT OF FUNDS FROM THE TXU ENERGY AID PROGRAM FOR THE PURPOSE OF FUNDING THE ENERGY AID PROGRAM THROUGH DECEMBER 31, 2014; PROVIDING FOR A SEVERABILITY CLAUSE; MAKING THIS ORDINANCE CUMULATIVE OF PRIOR ORDINANCES; REPEALING ALL ORDINANCES IN CONFLICT HEREWITH AND PROVIDING AN EFFECTIVE DATE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS: SECTION 1. That in addition to those amounts allocated to the various City departments for Fiscal Year 2011-2012 in the Budget of the City Manager, there shall also be increased estimated receipts and appropriations in the Grants Fund in the amount of $450,000 00, subject to receipt of funds from the TXU Energy Aid Program, for the purpose of the funding the Energy Aid Program through December 31, 2014. SECTION 2. That should any portion, section or part of a section of this ordinance be declared invalid, inoperative or void for any reason by a court of competent jurisdiction, such decision opinion or judgment shall in no way impair the remaining portions, sections, or parts of sections of this ordinance, which said remaining provisions shall be and remain in full force and effect. SECTION 3. That this ordinance shall be cumulative of Ordinance No.19911-09-2011 and all other ordinances and appropriations amending the same except in those instances where the provisions of this ordinance are in direct conflict with such other ordinances and appropriations, in which instance said conflicting provisions of said prior ordinances and appropriations are hereby expressly repealed. SECTION 4. This ordinance shall take effect upon adoption. APPROVED AS TO FORM AND LEGALITY: Assistant City Attorney ADOPTED AND EFFECTIVE