Loading...
06-C TXU Street Ltg Serv Agr DRAFT F:ATTORNEY\ORDWORKICURRENTITXU Street Lighting Service Agr Ord July 6, 2005 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS, APPROVING AND AUTHORIZING AN AGREEMENT FOR STREET LIGHTING SERVICE BY AND FOR THE CITY OF PARIS AND TXU ELECTRIC DELIVERY COMPANY; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, since the implementation of deregulation legislation, various services provided by electrical service companies have been identified as separate services for which contractual arrangements are required separate and apart from contractual arrangements for the purchase of electrical power; and, WHEREAS, one of such services, which as a result of said deregulation is now separately provided by contractual arrangement, is the installation and maintenance of street lighting for various municipalities; and, WHEREAS, the City of Paris desires to contract with TXU Electric Delivery Company for the aforesaid company to provide street lighting services to the City of Paris; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS: Section 1. That the findings set out in the preamble to this ordinance are hereby in all things approved, Section 2. That an Agreement for Street Lighting Services by and between the City of Paris and TXU Electric Delivery Company, a copy of which is attached hereto and for all purposes incorporated herein, shall be and is hereby in all things approved, and the Mayor shall be and is hereby authorized to execute and the City Clerk to attest to the aforesaid Agreement for Street Lighting Services, Section 3. That this ordinance shall be effective from and after its date of passage and publication as required by law, PASSED AND ADOPTED this 11th day of July, 2005, Curtis Fendley, Mayor ATTEST: ~ .~. ~: r:- ~ AGREEMENT FOR STREET LIGHTING SERVICE BY AND BETWEEN The City of Paris, A MUNICIPAL CORPORATION AND TXU ELECTRIC DELIVERY COMPANY DATE May 9, 2005 AGREEMENT FOR STREET LIGHTING, P. 1 OF 5 EXHIBIT Jl I , . , ," AGREEMENT FOR STREET LIGHTING SERVICE BY AND BETWEEN TXU ELECTRIC DELIVERY COMPANY AND City of Paris The City of Paris, Texas, a Municipal Corporation ("Customer"), and TXU Electric Delivery Company, a Texas corporation ("Company"), for and in consideration of the mutual covenants set forth in this Agreement for Street Lighting Service (the "Agreement"), agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the meanings indicated: a. "Company's Tariff" shall mean the Company's approved Tariff for Retail Delivery Service, as may be revised from time to time during the term of this Agreement, on file with the Public Utility Commission of Texas; b. Customer shall be the "Retail Customer" as such term is used in Company's Tariff. c.. "Facility" or "Facilities" shall mean the electrical facilities or equipment, including but not limited to, pole(s), luminaire(s), wires, and appurtenances, owned by Company or Customer, through which Company will provide service to Customer pursuant to this Agreement. 2. Term and Termination. Consistent with the requirements of section 6.1.1.6 - Lighting Service of Company's Tariff, this Agreement shall be effective as of the day of ,2005 , and, unless terminated early in accordance with the terms of this Agreement, shall remain in effect for an initial term often (10) years and ITom year to year thereafter until canceled by either party consistent with the terms of this Agreement. After the expiration of the initial ten year term, this Agreement may be terminated by either party upon ninety (90) days written notice to the other party. Notwithstanding any provision of this Agreement to the contrary, this Agreement may be terminated at any time under the following conditions. (a) If Company begins installation of any requested Facilities prior to receiving full payment of any contribution-in-aid-of-construction provided for in section 6.1.1.6 - Lighting Service of Company's Tariff or any subsequently approved similar provision, from Customer or Customer's agent or representative ("Customer's Agent") as appropriate, and Customer or Customer's Agent thereafter fails to make such payment in full, then: (i) Company may immediately terminate this Agreement by providing written notice of such termination to Customer, (ii) Company may remove all such Facilities, and (iii) Customer shall pay Company all cost incurred by Company in removing such Facilities, less the salvage value of such Facilities, within 30 days of Company's removal of the subject Facilities. "- (b) If Customer discontinues taking electric service ITom Customer's designated competitive retailer at Facilities, for purposes other than to allow the Customer to begin receiving service from another competitive retailer at such Facilities, then: (i) Company may immediately terminate this Agreement by providing written notice of such termination to Customer, (ii) Company may remove all such Facilities owned by Company, and (iii) Customer shall pay Company all cost incurred by Company in removing such Facilities, less the salvage value of such Facilities, within 30 days of Company's removal of the subject Facilities. (c) If Customer purchases Facilities owned by Company. 3. Contribution-In-Aid-Of-Construction. Section 6.1.1.6 - Lighting Service of Company's Tariff provides for the installation or construction by Company of a base level of Facilities with no contribution-in-aid-of- construction required from Customer. For example, Schedule A provides for the installation or construction of wood poles of a type normally used by Company served overhead without the payment of contribution-in-aid-of- construction by Customer. Schedule B provides for the installation or construction of steel or other ornamental poles of a type normally used by Company served overhead without the payment of a contribution-in-aid-of- construction, but requires the payment of a higher monthly charge by Customer. Requested Facilities that exceed such base level require a contribution-in-aid-of-construction to be paid by Customer to Company. Company will AGREEMENT FOR STREET LIGHTING, P. 2 OF 5 I . <.- begin work on the requested Facilities prior to receipt of full payment of any required contribution-in-aid-of- construction ITom Customer or Customer's Agent. However, Customer or Customer's Agent shall pay to Company any required contribution-in-aid-of-coristruction prior to Oncor energizing the requested Facilities or within 90 days ITom the receipt of a contribution-in-aid-of-construction invoice, whichever is earlier. If Customer has arranged for Customer's Agent to pay to Company any required contribution-in-aid-of-construction, then Customer's Agent shall execute a Supplement to this Agreement, the form of which is attached hereto as Exhibit A, for the sole purpose of establishing such agent's agreement to pay such contribution-in-aid-of-construction. 4. Service Subject to Company's Tariff. This Agreement is subject to the terms and conditions of Company's Tariff, and all services provided by Company shall be pursuant to and consistent with Company's Tariff. To the extent any provision of this Agreement conflicts with or is inconsistent with Company's Tariff, then the provisions of Company's Tariff shall control. 5. Material Change. In the event that a judicial decision, order, new law or regulation, or a change in any law or regulation, materially and directly affects a party's ability to perform its obligations hereunder, then the party that is negatively affected shall have the right to notify the other party, within 30 days after becoming aware of such detrimental event. The parties shall use their best efforts to negotiate a modification to the terms of this Agreement so as to mitigate the impact of the event. If, after twenty (20) days beyond the notice, the parties have been unable to n~gotiate a mutually satisfactory modification to the terms of this Agreement, then either party shall have the right to terminate this agreement upon ten (10) days written notice to the other party. If such right to terminate is not exercised within forty-five (45) days after the date of the original notice, then the right to terminate this Agreement shall be waived with respect to the particular event. 6. Type of Service and Applicable Rate Schedule. The type of service provided and rate schedule applicable at each Facility or group of Facilities shall be agreed to by the Parties and specified on the form entitled Request for Street Lighting Service, attached hereto as Exhibit "B," which may be amended or supplemented as necessary, at any time, by mutual agreement of the parties. 7. Installation/Construction. All requests for installation or construction of Facilities subject to this Agreement shall be made on the form entitled Request for Street Lighting Service, attached hereto as Exhibit "B" and incorporated into this Agreement by execution of the form Supplement to the Agreement attached hereto as Exhibit "A." All such installation or construction shall be performed by Company pursuant to and consistent with section 6.1.1.6 - Lighting Service of Company's Tariff, and all other applicable provisions of such Tariff. 8. Relocation of Facilities. Nothing contained herein modifies section 37.101 ofPURA, which provides that "the governing body of a municipality may require an electric utility to relocate the utility's facility at the utility's expense to permit the widening or straightening of a street by: (1) giving the electric utility 30 days' notice; and (2) specifying the new location for the facility along the right-of-way of the street." Notwithstanding the foregoing, issues regarding the relocation of Facilities should, if possible, be resolved by the parties prior to the execution of this Agreement and may require the execution of a separate agreement. 9. Billing and Payment. Company will invoice Customer directly for the contribution-in-aid-of-construction specified on the form entitled Request for Street Lighting Service, attached hereto as Exhibit "B" and any other charges for which Company's Tariffprovides for direct billing by Company to Customer. Federal income taxes are due on contributions-in-aid-of-construction, pursuant to current Internal Revenue Service ("IRS") rulings and regulations, unless Customer is eligible for an exemption available under applicable IRS regulations. To the extent such IRS rulings and regulations are modified in a manner that impacts the obligation of Customer to pay such federal income taxes, then the Parties shall implement such modified rulings and regulations on a prospective basis. All other charges associated with the Services provided by Company to Customer will be included on the bill or invoice that Customer receives from Customer's designated competitive retailer. 10. No Delegation of Authority. Customer does not by this Agreement delegate its authority or responsibility for the Facilities covered by this Agreement to Company but shall continue to hold full discretion to determine the policies and procedures regarding such Facilities. 11. Obstructions. Customer is responsible for removing all obstructions and trimming all trees that may interfere with the installation or construction of requested Facilities. After installation, Company is responsible for removing or trimming all trees that interfere with the distribution line providing service to the lighting facilities and AGREEMENT FOR STREET LIGHTING, P. 3 OF 5 I , -- '. ; Customer is responsible for removing or trimming all trees that interfere with the dispersion of light from the Facilities. 12. Outages. To the extent that Company is responsible for maintaining Facilities pursuant to this Agreement, Customer may report any Facilities requiring maintenance to Company via either of the following means: Internet: http://streetlights.txuelectricdelivery.com Telephone: 1-888-313-4747 13. Permits. Customer will secure for Company all permits and consents necessary for the performance of this Agreement. 14. Notice. Except as provided in section 12 above, any notice required under this Agreement shall be forwarded to the following representatives of the parties: Customer: CITY OF PARIS~ PARIS~ TEXAS P. O. Box 9037 Paris~ TX 75461-9037 Company: Asset Manager TXU Electric Delivery Company 15. Prior Agreements for Street Lighting Service. This Agreement supersedes and amends all prior agreements for Street Lighting Service between Company and Customer. 16. Successors and Assigns. This Agreement shall inure to the benefit of, and be binding upon, Company and Customer and their respective successors and permitted assigns. Neither party shall assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party. Notwithstanding the foregoing, Company may, without the consent of Customer and upon five (5) days advance written notice, (a) transfer or assign this Agreement to an affiliate of Company, or (b) transfer or assign this Agreement to any person or entity succeeding to all or a substantial portion of the assets of Company. UPON AN ASSIGNMENT PURSUANT TO THIS SECTION, CUSTOMER AGREES THAT COMPANY SHALL HAVE NO FURTHER OBLIGATIONS REGARDING FUTURE PERFORMANCE HEREUNDER. This Agreement is effective this 11 t:llayof .July , 2005. The City of Paris BY: Curtis Fendley~ Mayor (TITLE) July 11,2005 (DATE) AGREEMENT FOR STREET LIGHTING, P. 4 OF 5 I 4 '. . TXU ELECTRIC DELIVERY COMPANY BY: (TITLE) (DA TE) AGREEMENT FOR STREET LIGHTING, P. 5 OF 5 I EXHIBIT "B" REQUEST FOR STREET LIGHTING SERVICE Actions: A -Addition R -Removal RL-Relocation S-Service (Schedule D - Dilly) Order required from Identifying CR to Energize - Rate Luminairel Location (Address, etc.) Action YeslNo Quantity Wattage Lamp Type Schedule** Pole Type (See Attached Sketch) ESID I Premise (For New ESID Only) Comments: **Unmetered Facilities -- Schedule A (Group 1 or 2), B (Group 1 or 2), C (Group 1 or 2), or D; R (Rectangular); P (post-Top); H (Historical) ; CLOSEDIREMOVE ONLY I (Incandescent); W (Wallpack Mercury Vapor); Metered Facilities - Non-Company-Owned; or Metered Facilities - Company-Owned (closed to new installations) 1. Customer or Developer agrees to pay Company contribution-in-aid-of-construction in the amount of $ 2. If Company is prevented from installing,the requested facilities by any event of force majuere as defined in Section 5.2.4 of Company's Tariff for Retail Delivery Service, Company will return to Customer or Developer as appropriate, without interest, the entire amount of Customer or Developer's contribution-in-aid-of- construction payment, thereby terminating this supplement and Company's obligation to provide facilities requested herein. I WR Number(s): Date: Janice Ellis, City Clerk APPROVED AS TO FORM: Larry W. Schenk, City Attorney