HomeMy WebLinkAboutR90-0072901L
RESOLUTION NO. /~ '00'7
A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT BETWEEN
THE CITY OF DENTON AND THE CITY OF FARMERSVILLE, TEXAS FOR THE SALE
AND PURCHASE OF WHOLESALE ELECTRIC SERVICE; AND PROVIDING AN EF-
FECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. That the Mayor is hereby authorized to execute an
agreement between the City of Denton and the City of Farmersville,
Texas for the sale and purchase of wholesale electric service,
under the terms and conditions contained in the agreement, a copy
of which is attached hereto and made a part hereof.
SECTION II. That this resolution shall become effective im-
mediately upon its passage and approval.
PASSED AND APPROVED this the ~'day of ~, 1990.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPKOVED AS TO LEGAL FORM:
DEBRA ADAMI DRAYOVITCH~ CITY ATTORNEY
CONTRACT FOR SALE
AND PURCHASE OF FIRM
POWER AND ENERGY
between
CITY OF FARMERSVILLE, TEXAS,
as purchaser
and each of
CITY OF BRYAN, TEXAS,
CITY OF DENTON, TEXAS,
CITY OF GARLAND, TEXAS,
CITY OF GREENVILLE, TEXAS,
each acting on its own
behalf severally and not
Jointly, as seller
Dated as of January 1, 1990
TABLE OF CONTENTS
Page
SECTION 1' Capacity of Parties Nature and
Number of Contracts 5
SECTION 2 Definitions 6
SECTION 3 Sale and Purchase of Firm Power and Energy 8
SECTION 4 Delivery of Firm Power and Energy 10
SECTION 5. Rates and Charges 13
SECTION 6 Meter Readings and Seller's Billing 16
SECTION 7 Meter Testing and Billing Ad]ustment 16
SECTION 8 Payments to Constitute Operating Expenses of
Purchaser's System 18
SECTION 9: Covenants of the Purchaser 18
SECTION 10' Covenants of the Seller 19
SECTION 11: Remedies ~n Event of Default 20
SECTION 12 Payment Due Dates and Delinquency 21
SECTION 13 Term of Contract 22
SECTION 14' Force Majeure 24
SECTION 15 Records and Accounts 25
SECTION 16. Access. 26
SECTION 17 Assignment 27
SECTION 18. Successors and Assigns 27
SECTION 19. Governmental Rates, Regulations and Laws 27
SECTION 20 Notices 27
SECTION 21' Severabll~ty 28
SECTION 22 Entlre Contract 28
SECTION 23. No Waiver 28
EXHIBITS
Exhibit A 32
Exhibit B 33
Exhibit C 34
Exhibit D 35
Exhlblt E 36
Exhlblt F 37
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CONTRACT FOR SALE
AND PURCHASE OF FIRM
POWER AND ENERGY
between
City of Farmersvllle, Texas,
as purchaser
and each of
City of Bryan, Texas,
City of Denton, Texas,
City of Garland, Texas,
Clty of Greenville, Texas,
each acting on its own
behalf severally and not
jointly, as seller
This Contract, made and entered into as of the 1st day of
January, 1990 (but effective on the date provided in Section 13
hereof), by and between the City of Farmersvllle, Texas (the
Purchaser"), a municipal corporation and polItical subdivision
of the State of Texas, and the City of Bryan, Texas, the C~ty of
Denton, Texas, the City of Garland, Texas, and the City of
Greenville, Texas, each of which cities is a municipal
corporation of the State of Texas (herein called "Seller" with
respect to provisions applicable to each of them and called
Bryan," "Denton," "Garland," or "Greenville,# as the case may
be, with respect to provisions applicable to them severally)
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W I TNE S S E TH
WHEREAS, the Purchaser has need of an economical, reliable
source of Firm Power and Energy to meet the growing demands of
its customers and has determined to purchase such Firm Power and
Energy from the Seller, and
WHEREAS, the Seller owns electric generating facilities and
transmission lines and purchases Power and Energy from TMPA for
the purpose of supplying Firm Power and Energy to its customers,
WHEREAS, the Seller is authorized by Section 402 001 of the
Local Government Code to sell electric service to any person
outside its boundaries and to contract with persons outside its
boundaries to permit them to connect w~th its System on terms
Seller considers in its best Interest, and
WHEREAS, the Purchaser is a person, within the meaning of
that term as defined in Section 311 005 of the Government Code,
located outside the boundaries of Seller and desires to purchase,
and the Seller, having found that the terms herein set forth are
in the best interest of the Seller desires to sell, Firm Power
and Energy on the terms and conditions herein set forth
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NOW THEREFORE, in consideration of the mutual undertakings
herein contained between the Purchaser and each of Bryan, Denton,
Garland, and Greenville acting on Its own behalf severally and
not Jointly, the Seller and the Purchaser agree as follows
SECTION 1' Capacity of Parties Nature and Number of
Contracts This instrument is four separate contracts between
the Purchaser and each of Bryan, Denton, Garland, and Greenville,
respectively. Each of the four separate contracts contains
substantially identical terms except insofar as a particular
provlslon is clearly appllcable only to one or more of the
separate contracts by specifying its application to Bryan,
Denton, Garland, or Greenville rather than Seller The rights,
duties, obligations, and benefits of "Seller" herein apply to
each of Bryan, Denton, Garland, and Greenville severally and not
jointly. This instrument contains no agreements or undertakings
and imposes no duties or obligations between any of Bryan,
Denton, Garland, or Greenville to any of Bryan, Denton, Garland
or Greenville A breach or termination of this instrument by one
or more of Bryan, Denton, Garland, or Greenville does not in any
manner affect the non-breaching or non-terminating parties and
does not affect the contracts herein contained of such non-
breaching or non-terminating parties with the Purchaser Th~s
contract shall be binding between Seller and Purchaser, with
respect to each separate contract, on the date both of the
Purchaser and the applicable Seller have duly authorized,
executed, and delivered this contract These contracts shall
terminate as provided in Section 13 The dates which the
contracts are executed and binding may be, but are not required
to be, the same The failure of one or more Sellers to execute
this instrument does not affect the formation of a contract by
the Purchaser and Sellers that execute this instrument since the
Sellers that do execute this contract are required to provide all
of the firm power and energy requirements of the Purchaser as
described in Section 3(c).
SECTION 2 DefInitions. As used herein
a) "Bryan" shall mean the City of Bryan, Texas
b) "Denton" shall mean the City of Denton, Texas
c) "Energy" shall mean kilowatt-hours (kwh)
d) "Garland" shall mean the C~ty of Garland, Texas
e) "GreenvIlle" shall mean the City of Greenville, Texas
f) "Points of Delivery" shall mean the points on the
System of, or available to, the Seller, as determined from time
to time by the Seller and the Purchaser, at which Power and
Energy are made available to the Purchaser pursuant to this
Contract Such Points of Delivery shall be attached hereto as
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Exhibit "A#, and a change therein, approved by the Seller and the
Purchaser shall not be considered as an amendment to this
Contract
g) "Power" shall mean kilowatts (kw)
h) "Purchaser" shall mean the City of Farmersvllle, Texas
1) "Seller" shall mean each of Bryan, Denton, Garland, and
Greenville acting on its own behalf, severally and not jointly
System" shall mean the Seller's electric utility
system.
k) "TMPA" shall mean Texas Municipal Power Agency
1) "Uniform System of Accounts" and all other accounting
methods and terminology contained or referred to in this Section
or elsewhere in this contract means accounting prInciples,
methods and terminology followed and construed, as nearly as
practicable, in conformity with the Uniform System of Accounts
for Class A and Class B Public Utilities and Licensees and
accounting rules and regulations thereunder prescribed by the
Federal Energy Regulatory Commission for privately owned power
companies which are subject to its jurisdictIon and engaged in
business comparable to the business of the Seller insofar as the
System is concerned, as amended from time to time, or such other
system as may be required by any regulatory agency
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SECTION 3: Sale and Purchase of Firm Power and Enerqy
a) The Seller agrees to provide and the Purchaser agrees
to purchase and to receive the Purchaser's total requirements for
Power and Energy for the operation of the Purchaser's electric
system in excess of (1) any amount generated from facilities
which the Purchaser Jointly owns with TMPA, (1~) any amount
purchased from TMPA after re-creation of TMPA by the addition of
one or more c~tles including, but not limited to, the Purchaser,
ill) any amount purchased from a joint powers agency created by
the Purchaser and by one or more of Bryan, Denton, Garland, or
Greenville, for the purpose of construction of future generating
facilities, (iv) any amount generated by the Purchaser from a
facility which is jointly owned by the Purchaser and by a joint
powers agency created by one or more of Bryan, Denton, Garland
and Greenville, and (v) any amount purchased from a city other
than the Seller which is a member-city of TMPA pursuant to a
contract substantially Identical to this contract
b) It is the intent of this Contract that if any of the
Sellers, as that term is defined in Section 2 of this Contract,
do not execute this Contract then the remaining Sellers who do
execute this Contract will be responsible for providing all of
the power and energy requirements of the Purchaser, as required
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under subsections (a) and (c), for the Term of this Contract
The formula which dictates how much power and energy each Seller
is required to provide is contained in Section 3(c) of this
Contract
c) The Seller's obligation to provide Firm Power and
Energy under this contract is limited to a proportion of
Purchaser's total requirements for Firm Power and Energy,
calculated by multiplying Purchaser's total requirements by a
fraction, the numerator of which is the difference between
Seller's available capacity including its then current
entitlement from Gibbons Creek, and 1 15 times the Seller's
native peak load after excluding other firm or nonflrm sales and
the denominator of which is the sum of the numerators for all of
Bryan, Denton, Garland, and Greenville Exhibit B reflects two
examples of calculations of the above formula
d) In association with the power and energy being sold to
Purchaser, Sellers will provide all of the operating and planning
reserves required by applicable operating agreements with other
members of the Electric Reliability Council of Texas in
proportion to their obligation to provide Firm power and energy
under Section 3(c) above.
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SECTION 4 Delivery of Firm Power and Energy
a) The Firm Power and Energy to be furnished under this
Contract shall be three (3) phase, alternating current, at a
nominal voltage of 24,900 volts at one point of delivery, and a
nominal frequency of sixty (60) hertz, subject to conditions of
delivery and measurement as hereinafter provided
b) The Points of Delivery and other conditions of service
shall be in accordance with Exhibit "A" attached to this
contract, as modified by the Seller and the Purchaser from time
to time The location of the delivery point, for service
commencing on September 25, 1990, shall be mutually agreed upon
between Purchaser and Seller After commencement of service
under this contract, no delivery points will be added without
permission of the Purchaser The Seller w~ll provide for the
construction of all facilities on the supply s~de of the metering
point and for the operation and maintenance of those facilitIes
c) The Sellers will pay for and construct a single 25KV
metering point located at a mutually agreeable location near the
Roping Club Arena on Old Josephine Highway The Sellers w~ll pay
for and install a 25KV Recloser at the metering point All
facilities on the Purchasers side of the metering point w~ll be
10
operated and maintained by Purchaser Ail facilities past this
point will be paid for, constructed and owned by Purchaser except
for the following facilities, which will be paid for and
constructed by the Sellers.
1) A 25KV Express Feeder from the metering point to a
mutually agreed upon point on South Ma~n Street, on
property currently owned by the Purchaser, near the
Clty Hall for the location of the 4160 volt stepdown
station Purchaser will provide routing and rights-
of-way for this l~ne
2) Three 150 ampere voltage regulators
3) Four 1000 KVA 25KV wye/4 16 KV wye transformers or
similar facilities or equipment that will provide
the same level of reliable service
After installation and successful operation, the facilities
listed in 1-3 above will be owned, operated and maintained by
Purchaser The Seller's interest in the facilities l~sted in 1-3
will be transferred to Purchaser automatically on the date Seller
obtains such interest from TMPA Purchaser shall have no
obligation to operate or maintain said facilities until title to
those facIlities ~s transferred to Purchaser
11
d) In the event adequate transmission arrangements have
not been made by Purchaser for the transmission of Seller's power
and energy to Purchaser by September 25, 1990, then the
commencement date of the terms and conditions of this contract
and delivery of power and energy related thereto shall be
extended until such time as Purchaser is able to make adequate
arrangements The Sellers will be responsible for delivery of
firm power and energy under th~s contract, to the metering point,
and any costs related to delivery of firm power and energy
e) Metering equipment shall be furnished, installed and
maIntained by the Seller at each Point of Delivery If
transforming equipment is located at the point of delivery, said
metering equipment shall be located on the high voltage s~de of
the transformer
f) The Purchaser shall maintain its electric system such
that the power factor at each metering point shall be between 90
lagglng and 90 leading In the event that the power factor at
the time of monthly peak demand is less than 90 lagging, the
demand for billing purposes will be adjusted by the following
formula
12
Adjusted demand = Actual demand x 90
Power factor
SECTION 5: Rates and Charges
a) The rates and charges of the Seller to the Purchaser
for Power and Energy and for services supplied shall be
1) non-discriminatory,
il) fair and reasonable, and be based upon the average
costs of providing the Power and Energy or providing the service
with respect to which the rate or charge is based as shown in
Exhlblt E, and
ill) adjusted annually to reflect the average cost of
Energy as calculated on an annual basis in the manner described
in thls section
b) Except with respect to adjustments expressly allowed by
this Section 5(c), the rates and charges set forth on Exhibit #C"
are firm until the earlier of January 1, 1994 or when the
Purchaser receives (1) any power or energy generated from
facilities which the Purchaser jointly owns with TMPA, (11) any
13
power or energy purchased from TMPA after re-creation of TMPA by
the addition of one or more cities Including, but not limited to,
the Purchaser, (111) any power or energy purchased from a joint
powers agency created by the Purchaser and by one or more of
Bryan, Denton, Garland, or Greenville for the purpose of
construction of future generating facilities, or (iv) any power
or energy generated by the Purchaser from a facility which is
jointly owned by the Purchaser and by a joint powers agency
created by one or more of Bryan, Denton, Garland, and Greenville
After such date, the rates and charges in Exhibit "C# shall be
amended The amended rates and charges shall be based on the
criteria in subsection (a)
c) On January 1 of each year during the term of this
contract, the average cost of energy for the preceding year
ending September 30 of Bryan, Denton, Garland, and Greenville
shall be compared with the average costs of Purchaser for the
same time perlod under the rates charged in Exhibit #C", the
Purchaser's rates to be corrected to reflect Purchaser's average
cost at the load factor of the system. The average costs of
Bryan, Denton, Garland, and Greenville shall be calculated by
dlv~dlng the sum of the product~on costs of Bryan, Denton,
Garland, and Greenville by the combined energy supplied to firm
load by Bryan, Denton, Garland and Greenville as shown in Exhibit
14
E" The production costs of Bryan, Denton, Garland and
Greenville shall be calculated by summing the demand charge of
TMPA, the energy charge of TMPA, the operating and maintenance
costs for power generation by Bryan, Denton, Garland and
Greenville, debt service for generation by Bryan, Denton, Garland
and Greenville, and other associated costs of generation by
Bryan, Denton, Garland and Greenville as shown in Exhibit "E#
Purchaser's corrected average cost will be the actual cost paid
under the rate in Exhibit #C#, adjusted to reflect Purchaser's
cost at a transmission rate and at system load factor An
example calculation of the Purchaser's corrected average cost is
shown in Exhibit #F" If this corrected rate is higher than the
average costs of Bryan, Denton, Garland and Greenville, the
difference shall be returned to the Purchaser, without liability
for any interest Under no circumstances will the Purchaser be
required to reImburse monies to the Sellers if the average costs
to Sellers are more than Purchasers' actual costs From and
after the date the Purchaser receives power and energy from one
of the four sources enumerated in subsection (b), If a reduction
in the Purchaser's demand for Power and Energy from the Seller
occurs, the calculation of average costs shall be changed to
reflect the demand of Purchaser for Power and Energy from the
Seller and the Seller's costs at such time
15
SECTION 6: Meter Readings and Seller's Bllllnq The Seller
shall read meters or cause meters to be read and bill the
Purchaser or cause the Purchaser to be billed for Power and
Energy furnished under this contract at monthly intervals If
multiple points of delivery are provided by Sellers, then the
demand utilized for billing purposes shall be calculated on a
coincident peak demand basis. Payment of bills are due within
15 days after receipt by Purchaser Payment of all bills shall
be made to the person, at the address, in the manner, specified
in each bill. Seller may cause billing services to be performed
by TMPA or by some other legal entity and Seller's bills may be
aggregated with the bills to Purchaser of any other member city
of TMPA. In such event, the Purchaser may pay a single amount to
TMPA or to the other entity, as the case may be, for credit to
the account of the Seller and the other cities as detailed on the
bill
SECTION 7: Meter Testing and Billing Adjustments The
Seller shall test and callbrate meters or cause meters to be
tested and calibrated by comparison with accurate standards at
intervals of twelve (12) months, or such other intervals as the
part~es agree. The Seller shall also make or cause to be made
special meter tests at any time at the Purchaser's request The
costs of all tests shall be borne by the Seller, provIded,
16 -
however, that if any special meter test made at the Purchaser's
request shall disclose that the meters are recording accurately,
the Purchaser shall reimburse the Seller for the cost of such
test Meters registered not more than 1/2 of 1% above or below
normal shall be deemed to be accurate The readings on any meter
which shall have been disclosed by test to be inaccurate shall be
corrected from the beginning of the monthly billing period
immediately preceding the billing period during which the test
was made in accordance with the percentage of Inaccuracy found by
such test, provided, that no correction shall be made for a
longer period unless the Seller and the Purchaser mutually agree
thereto Should any meter fall to regIster, the Power and Energy
delivered during such period of failure shall, for billing
purposes, be estimated by the Seller and the Purchaser from the
best information available The Seller shall notify the
Purchaser or cause the Purchaser to be notified in advance of the
time of any meter test so that the Purchaser's representative may
be present at such meter test For the purpose of notifying the
Purchaser in advance of a meter test, the Seller is not required
to provide written notification as required by section 21
17 -
SECTION 8 Payments to Constitute Operating Expenses of
Purchaser's System The Purchaser's obligation to make the
payments under this contract shall constitute an operating
expense of Its electric system payable solely from the revenues
and receipts of such electric system
SECTION 9 Covenants of the Purchaser
a) The Purchaser covenants to establish, maintain and
collect rates and charges for the electric service of its
electric system which shall produce revenues at least sufficient,
together with other revenues avaIlable to such electric system
and available electric system reserves, to enable it to pay to
the Seller, when due, all amounts payable by the Purchaser under
this contract
b) The Purchaser covenants that Firm Power and Energy
suppl~ed under th~s Contract will be used only to supply
Purchaser's retail customers as members of the general public and
will not be resold to other utilities at wholesale or resold to
any person or business pursuant to a written contractual
arrangement or other understanding which differs in any respect
from sales to the public generally. For purposes of this section
9(b), purchases of Firm Power and Energy by industrial or
18
business customers pursuant to a rate structure published by the
Purchaser and available to any customer meeting the established
criteria (size of load, load factor, etc ) are treated as sales
to the public generally and are not prohibited by this section
SECTION 10 Covenants of the Seller
a) The Seller covenants to use reasonable dIligence to
provide a constant and uninterrupted supply of Power and Energy
hereunder. If by reason of force majeure, the supply of Power
and Energy shall fall, or be interrupted, or become defective as
hereinafter provided, the Seller shall not be liable thereof or
for damages caused thereby Pursuant to the Power Sales
Contract, as amended, between Seller and TMPA, Seller is
obligated to take all of its requirements from TMPA and is
prohibited (except in certain limited c~rcumstances) from
constructing additional generating facilities Therefore, no
provision of this Contract requires Seller to construct capacity
to provlde Power and Energy to Purchaser If Seller does not
have sufficient capacity to provide to Purchaser the Power and
Energy required under this Contract, Seller shall purchase the
additional Power and Energy that is required
19
b) The Seller covenants that it will operate, maintain and
manage its System or cause the same to be operated, maintained
and managed in an efficient and economical manner, consistent
with sound utility practice and in accordance with standards
normally used by utilities owning like properties
SECTION 11 Remedies in Event of Default
a) If the Purchaser fails or defaults in meeting the
terms, conditions and covenants of this contract, the Seller
shall give notice to the Purchaser The Purchaser shall from the
date of the mailing of such notice, have a period of 15 days to
cure the default
b) If the Purchaser does not cure its default within such
period of fifteen (15) days, then, so long as the Purchaser
remains in default, and in addition to any other rights which the
Seller has under this contract and at law and in equity, the
Seller may terminate all service to the Purchaser provided,
however, that Seller shall specifIcally notify Purchaser, in
writing, at least fifteen (15) days prior to such termination of
services hereunder. Such notice of termination may be included
in the notice required under subsection (a), and, in such a case,
the fifteen (15) day period in which the Purchaser may cure a
20 -
default may also serve as the fifteen (15) day notice period
prior to termination of service Termination of service
hereunder shall not reduce or change the oblIgation of the
Purchaser under the other provisions of this contract
c) If the Seller falls or defaults in meeting the terms,
conditions and covenants of this contract, the Purchaser shall
give notice to the Seller Following such notice, the Seller
shall have a period of 15 days to cure the default If the
default is not cured in the 15 day period, then the Purchaser
shall have all of the rights and remedies provided at law and in
equity.
SECTION 12 Payment Due Dates and Delinquency In the
event that the Purchaser falls to make any payment within fifteen
15) days after receipt of the bill, interest on the delinquent
amount shall accrue at the rate of ten percent (10%) per annum
from such date until paid in full Following the fifteen day
period in which Purchaser may cure such default as provided in
Section 11, the Seller may, in addition to any other remedy in
this contract Including termination of service and including any
other remedy available at law or in equity, ~nstltute a
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proceeding for a mandatory in]unction requiring the payment of
the amount due and interest thereon, such action to be instituted
in a court of competent jurisdiction
SECTION 13. Term of Contract.
a) The Seller's duty to provide Firm power and energy
under this contract shall commence on September 25, 1990
b) If Seller does not request Purchaser to enter into a
contract as specified in subsection (c) hereunder, then this
contract shall terminate on January 1, 1998
c) During the term of this contract, Seller may in
writing, request Purchaser to enter into a contract (1) with
TMPA, for the Joint ownership of a generatIng unit with TMPA,
with TMPA, for the purchase of power and energy from TMPA,
following the re-creation of TMPA by the addition of one or more
cltles, including Purchaser, (111) with a joint powers agency,
created by Purchaser and by one or more of Bryan, Denton,
Garland, or Greenville, for the purchase of power and energy from
the joint powers agency, or (iv) with a joint powers agency
created by one or more of Bryan, Denton, Garland or Greenville,
22
for the Joint ownership of a generating unit with the joint
powers agency, or (v) with TMPA for the construction of electric
generating facilities for the Purchaser utilizing the proceeds of
special contract revenue bonds to be issued by TMPA
Hereinafter, such a contract shall be referred to as a "contract
of participation"
d) Within one year after the receipt by Purchaser of a
request under subsection (c), Purchaser shall (1) comply with the
request by entering into the contract of participation and elect
to have this contract terminate on the date of termination of the
contract of participation (11) deny the request and elect to
terminate this contract, effective two years after receipt of the
request, or (111) deny the request and elect to have this
contract continue on a "rolling" five year term If, during the
rolling" five year term, no notice terminating the contract is
received before any January 1, then the Purchaser and the Seller
will be deemed to have continued the contract for another five
year term commencing on January 1 If, however, during the
rolllng# five year term, the Purchaser or the Seller provides
written notice to the other before any January 1 terminating the
contract, then the contract will terminate at the end of the five
year period commencing on January 1
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e) If the Purchaser fails to respond to a request under
subsection (c) within one year after the receipt of the request,
the request will be deemed automatically denied and this contract
shall continue on a #rolling# five year term as more specifically
described in subsection (d).
SECTION 14' Force Majeure
a) If for any reason of "force majeure" any of the parties
hereto shall be rendered unable, wholly or in part, to carry out
its obligations under this contract, then if such party shall
give notice and the full particulars of such reasons in writing
to the other party within a reasonable time after the occurrence
of the event or cause relied on, the obligation of the party
giving such notice, so far as it is affected by such "force
majeure," shall be suspended during the continuance of the
inability then claimed, but for no longer period, and such party
shall endeavor to remove or overcome such inability with all
reasonable dispatch The term "force majeure" as employed herein
shall mean acts of God, strikes, lockouts, or other industrial
disturbances, acts of the public enemy, orders or actions of any
kind of the Government of the United States or of the State of
Texas or any civil or mllltary authority, Insurrections, riots,
epidemics, landslides, llghtmlng, earthquakes, fires, hurricanes,
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storms, floods, washouts, droughts, arrests, restraints of
government and people, civil disturbances, explosions, breakage
or accident to dams, machinery, pipelines, or canals or other
structures or machinery, on account of any other cause not
reasonably within the control of the party claiming such
inability. It is understood and agreed that the settlement of
strikes and lockouts shall be entirely within the discretion of
the party having the difficulty, and that the above requirement
that any "force majeure" shall be remedied with all reasonable
dispatch shall not require the settlement of str~kes and lockouts
by acceding to the demand of the opposing parties when such
settlement is unfavorable to it in the judgment of the party
having the difficulty.
b) No damages shall be recoverable from the Seller or from
the Purchaser by reason of the cause above mentioned
c) Upon request from Purchaser, Sellers will assist
Purchaser in an effort to secure an alternative temporary source
of power and energy in the event of an interruption of power
SECTION 15' Records and Accounts The Seller will keep
accurate records and accounts of the System and of the
transactions relating to each facility constituting the System as
25 -
well as of the operations of the Seller in accordance with the
Un~form System of Accounts, which shall include depreciation
Within one hundred twenty (120) days after the close of each
flscal year of the Seller, the Seller shall cause such records
and accounts with respect to such fiscal year of the Seller to be
subject to an annual audit by an independent certified public
accountant A copy of each such annual audit shall be sent by
the Seller to the Purchaser.
SECTION 16 Access The Purchaser shall have reasonable
access to examine any and all books and records of the Seller
which are public records under the Open Records Act and to
examine any facility of the System The Seller and the Purchaser
will give the other access to the facilitIes and (when permitted
by existing easement) to the easements, rights-of-way and
property of each other at all reasonable times for the purpose of
constructing, maintaining, repairing or removing facilities,
reading meters and performing work necessary or incidental to
delivery and receipt of Firm Power and Energy furnished
hereunder To the extent it is necessary to authorize the
delivery of the power and energy required under this contract, to
Purchaser (and not to others), Purchaser consents to the
extension of electric lines inside the incorporated boundaries of
Purchaser
26 -
SECTION 17 Assignment This Contract shall not be
assignable without the written consent of the Purchaser and each
of the Sellers.
SECTION 18 Successors and Assigns This Contract will
inure to and be binding upon the successors and assigns of the
respective parties
SECTION 19 Governmental Rates, Regulations and Laws The
contract shall be subject to all valid rules, regulations and
laws applIcable thereto, as promulgated by the United States of
America, the State of Texas, or any other governmental body or
agency having lawful jurisdiction or any authorized
representative or agency of any of them
SECTION 20 Notices. Any notice, request, demand,
statement or bill provided for in this contract shall be in
writing and shall be considered to have been duly delivered and
received when sent by registered or certified mall, addressed as
provided in Exhibit #D", unless another address has been
designated, in writing, by the party entitled to receive same
27 -
SECTION 21' Severablllty The parties hereto agree that if
any of the provisions of this contract should contravene or be
held invalid under the laws of the State of Texas, such
contravention or lnvalldlty shall not invalidate the whole
contract but it shall be construed as though not contaIning that
particular provision, and the right and obligations of the
parties shall be construed and in force accordingly
SECTION 22. Entire Contract This contract shall
constitute the entire understanding between the parties hereto,
superseding any and all previous understandings, oral or written,
pertaining to the subject matter contained here~n No party
hereto shall have any rellef, or be entitled to rely, upon any
oral representation or oral ~nformat~on made or g~ven to such
party by any representative of the other party or anyone on its
behalf.
SECTION 23. No Waiver The failure of a party to enforce
at any time any of the provisions of this contract or to require
at any time performance by the other party of any of the
provisions of this contract shall not be construed as a waiver of
such provisions or of the right of such party thereafter to
enforce each and every provision of this contract
28 -
IN WITNESS WHEREOF, the parties hereto have caused this
contract to be executed in their corporate names and their
corporate seals affixed, all by the proper officer duly
authorized thereunto, as of the day and year first herelnabove
written
CITY OF FARMERSVILLE, TEXAS
ByMa yor~ ~~~
Seal)
ATTEST
Date of
By ExecutIon
Clty Secretary
29 -
CITY OF BRYAN, TEXAS
Mayor
Seal)
ATTEST.
Date of
By' .~I~U~ \ '~'~ ~0~ Execution
City Secretary
CITY OF DENTON, TEXAS
Seal)
ATTEST
Date of
t~ "S~cretary .... / ! -
30 -
CITY OF GARLAND, TEXA~ ~
Mayor
Seal)
ATTEST.
Date of
By ~/ ~ ~ Execution ~- ~ -//~
City Secretary
CITY OF GREENVILLE, TEXAS
Board Chairman
Seal)
ATTEST
Date of /~
By _~ Executlo~ ~-/ ~$
Board Secretary
31-
EXHIBIT #B"
Example Calculation of the Proportional Share of Firm Power
and Energy to be Provided by each Seller to Purchaser
Bryan Denton Garland Greenville
Sellers Available Capacity - MW 310 258 616 144
Sellers Native Peak Load 153 176 367 83
1 15 times Peak Load 176 0 202 4 422 0 95 4
Difference - Numerator 134 1 55.6 194 0 48 6
Denominator - Sum of Numerators 432 432 432 432
Fraction 0 3102 0 1287 0 4488 0 1123
Farmersvllle Load - 4800 KW
Obligation 1489 618 2154 539
If, for example, only Bryan, Denton and Greenville executed this
Contract, then their individual obligations would be calculated as
follows
Bryan Denton Greenville
Sellers available capacity - MW 310 258 144
Sellers Native Peak Load 153 176 83
1 15 times Peak Load 176 0 202 4 95 4
Difference - Numerator 134 1 55 6 48 6
Denominator - Sum of Numerators 238 238 238
Fraction 5634 2336 2042
Farmersvllle Load ~ 4800 KW
Obligation 2704 1121 980
The numbers appearing in this Exhibit are for illustrative purposes
only and are not intended to specify exact obligations to provide
firm power and energy under this Agreement
33 -
EXHIBIT #C"
RATES AND CHARGES
Demand Charge $13 03/KW
Energy Charge $ 2/M W H
THE DEMAND CHARGE SHALL APPLY TO THE LARGER OF THE ACTUAL MONTHLY
METERED DEMAND (AS ADJUSTED BY THE POWER FACTOR ADJUSTMENT, IF
NECESSARY) OR 50% OF THE LARGEST MONTHLY METERED DEMAND (ADJUSTED
FOR POWER FACTOR) IN THE LAST ELEVEN MONTHS
A MONTHLY FUEL CHARGE WILL BE MULTIPLIED BY THE ENERGY
CONSUMPTION. THE FUEL CHARGE WILL BE THE AVERAGE COST OF FUEL
FOR BRYAN, DENTON, GARLAND, GREENVILLE AND PURCHASER THE FUEL
CHARGE WILL BE CALCULATED ON AN "ESTIMATE AND CORRECT" BASIS
34 -
EXHIBIT "D#
NOTICES
Ail notices, requests, demands, statements or bills shall be
mailed to the followIng
CITY OF FARMERSVILLE
Attention. c~ty Manager
303 S Maln Street
Farmersvllle, Texas 75031
CITY OF BRYAN
Attention City Manager
P O Box 1000
Bryan, Texas 77805
CITY OF DENTON
Attention. City Manager
215 E McK~nney
Denton, Texas 76201
CITY OF GARLAND
Attention City Manager
P O Box 469002
Garland, Texas 75046
CITY OF GREENVILLE
Attention. Director of Electric Utilities
P O. Box 1049
Greenville, Texas 75401
35 -
Exhlblt
Calculation of Average Costs of Seller
A
Average cost of Seller = __ where
B
A = The sum of the demand charge of TMPA, the energy charge of
TMPA, the operating and maintenance costs for power
generation by the Sellers, debt service for generation by the
Sellers and other associated costs of generation and costs of
purchase power of Sellers
B = The comblned energy supplied to flrm load by Sellers
36 -
EXHIBIT "F#
1 Farmersvllle Average Cost Adjustment Example Calculation
2 System Average Load Factor 48 38%
3 Peak Demand 4,804 KW From Peak
Month's Bill
4 Demand Billing Units 39,178 Annual KW from
Billings
5 Energy Billing Units 17,149,800 KWH from Billings
6 Demand Rate $13 03 per KW
7 Less Distribution Charge $1 25 per KW
8 Equivalent Transmission Rate $11 78 per KW (Line 6
minus Line 7)
9 Transmission Demand Bill $461,516 84 Line 8 times Line 4
10 Actual Fuel & Energy Bill $283,829 19 From Billings
11 Average Fuel & Energy Cost $0 01655 L~ne 10 divided by
L~ne 5
12 Energy Required to Produce 20,359,810 L~ne 3 t~mes L~ne 2
System Load Factor t~mes 8760
13 System Load Factor Energy $336,954 85 Line 11 times
Bill l~ne 12
14 System Load Factor $798,471 69 Line 9 plus Line 13
Total Bill
15 Equivalent Average Cost $0 03922 L~ne 14 divided by
Line 12
The numbers in this Exhibit are for Illustrative purposes only
37