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HomeMy WebLinkAbout2000-394FILE REFERENCE FORM 2000-394 Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act X Other FILE(S) Date Initials Per Michael Copeland agreement was never completed by Sanger 7/22/05 Jw ORDINANCE NO e2oco -q AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE AN ELECTRIC DISTRIBUTION SYSTEM MAINTENANCE AND OPERATION AGREEMENT BY AND BETWEEN THE CITY OF DENTON, TEXAS AND THE CITY OF SANGER, TEXAS, WHEREIN DENTON MUNICIPAL ELECTRIC SHALL PROVIDE SERVICES TO THE CITY OF SANGER RELATING TO THE MAINTENANCE AND OPERATION OF ITS ELECTRIC DISTRIBUTION SYSTEM, PROVIDING FOR THE EXPENDITURE OF FUNDS THEREUNDER, PROVIDING FOR RETROACTIVE EFFECT OF THE AGREEMENT, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I. That the City Manager is authorized to execute the Electric Distribution System Maintenance and Operation Agreement by and between the City of Denton, Texas and the City of Sanger, Texas (the "Agreement"), in substantially the form of the Agreement attached hereto and incorporated herewith by reference SF+.CTTON I That the expenditure of funds related to the City of Denton's performance of the Agreement is hereby authorized SECTION 1 That the above and foregoing Agreement is hereby ratified, confirmed, and retroactively approved, and shall be effective from and after October 6, 2000 SECTION 4 That except as otherwise provided in Section 3 above, this Ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the 12_(& day of OCgaV e r 12000 EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS,, CIITY SECRETARY By % APPR ED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By &64 S \Our Documents\0rdmances\00\Sanger Electric System M&O Agmt.DME 10 00 ord doe THE STATE OF TEXAS COUNTY OF DENTON ELECTRIC DISTRIBUTION SYSTEM MAINTENANCE AND OPERATION AGREEMENT THIS AGREEMENT (hereafter the "Agreement') is made and entered into by and between the City of Denton, Texas ("DENTON"), a Municipal Corporation and the City of Sanger, Texas, a Municipal Corporation ("SANGER"), each acting pursuant to the authority obtained from their respective governing bodies, and this Agreement being executed by and through their respective duly authorized officials and officers DENTON and SANGER (hereafter collectively referred to as the "Parties"), for and in consideration of the promises and covenants contained herein, in consideration of the mutual benefits to be obtained by the Parties hereunder, and in consideration of the sum of Ten Dollars ($10 00) and other valuable considerations to be paid by SANGER to DENTON pursuant hereto, the Parties do hereby AGREE as follows Section 1, Scope of Work/Services to he Provided by Denton Mimiripal Electric, Operations, maintenance and minor construction pertaining to the Electric Distribution system for the City of Sanger, Texas A Service Ticket activities and services (repair street light, guy wire, tree limbs, etc ) B Power Restoration activities and services (fuses, poles, conductor, hardware, etc ) C Minor Construction activities to provide service (one/two pole extensions, 100-200 ft underground extensions, transformer, service wire, etc ) PROVIDED HOWEVER, Construction costs hereunder (material, labor and equipment) shall not exceed $25,000 total during the term of tlus Agreement Any other construction project(s) requiring over $25,000 for construction costs shall be handled under a separate written agreement, subject to the approval of the Denton City Council Section 2. Rates and Charges. (A) SANGER shall pay DENTON, for services provided under this Agreement, the following (1) For the work performed by DENTON under Section 1 hereinabove, SANGER shall pay DENTON the sum of $8,800 per month compensation for services performed, and equipment utilized by DENTON in the performance of this Agreement, and (2) The cost of materials, supplies, equipment rentals, outside or independent contractor fees and expenses, sales, use and similar taxes, and other miscellaneous costs directly related to the provision of services under this Agreement for SANGER, all of which shall be invoiced at the actual cost incurred by DENTON, and (3) An administrative charge due and payable to DENTON by SANGER equal to 10% of the sum of the amounts invoiced under Section 2(A)(2), heremabove (B) DENTON shall issue and deliver to SANGER an invoice for services performed and materials furnished pursuant to this Agreement on a monthly basis All invoices shall be due upon receipt Any invoice which remains unpaid for more than thirty (30) days after receipt by SANGER shall bear interest at the rate of 10% per annum thereafter until fully paid (C) DENTON shall keep records and accounts of the activities and transactions relating to the provision of services under this Agreement to which SANGER shall have reasonable access to Section 3. Warrantim, Limitationc. A) DENTON shall use reasonable diligence to provide regular and consistent maintenance and operating activities under this Agreement and shall perform its services in a good and workmanlike manner DENTON shall not be liable for any damages of any kind or character, any costs or losses caused by an interruption, suspension, or curtailment of electric service due to any cause not reasonably within its control including, but not limited to acts of God, nature or the elements, fire, accidents; civil or public disturbance, breakdown or accident to equipment, or any damages, costs or losses suffered by SANGER pertaining to an act or omission by any person or entity not under the direct control of DENTON B) In the event of a natural disaster in which SANGER suffers physical damage to its electrical system, DENTON shall assess its Electric Utility's situation to determine whether it is capable of providing assistance to SANGER, considering the needs of DENTON'S own electric utility customers first DENTON shall be under no obligation to provide assistance to SANGER in the event of such a natural disaster However, DENTON agrees that if its electric utility is capable of providing assistance to SANGER in the event of such natural disaster, then DENTON will do so in good faith C) The Parties agree that the entire liability of DENTON from any cause, whether arising by contract, in tort, or otherwise, shall not exceed the total sum of money received by DENTON under this Agreement for its services D) THE WARRANTIES CONTAINED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE THE SERVICE BEING PROVIDED UNDER THIS AGREEMENT IS BEING SOLD "AS IS" SANGER AGREES THAT DENTON SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR FOR THE LOSS OF PROFIT OR REVENUE ARISING FROM THE PROVISION OF SERVICE UNDER THIS AGREEMENT EVEN IF DENTON HAS BEEN ADVISED OF SUCH POSSIBILITY Section 4, Term- Termination_ (A) This Agreement shall be for a primary term of ninety (90) days (B) This Agreement shall be automatically renewed for successive thirty (30) day periods, until such time as SANGER provides written notice to DENTON of its intention to terminate tlus Agreement at least ten (10) working days prior to the end of the primary term, or as to any successive thirty (30) day renewal term of this Agreement This provision is subject to the total one (1) year termination date set forth in Section 4 (C) herembelow (C) This Agreement, notwithstanding the automatic renewal terms provided for in Section 4 (B) heremabove, shall in all events terminate one year after its effective date (D) This Agreement shall be effective from and after October 6, 2000, wluch is herein referred to as the effective date of this Agreement (D) DENTON may terminate tlus Agreement, at will and without cause, by providing SANGER thirty (30) days written notice of termination (E) DENTON may terminate this Agreement upon ten (10) days written notice to SANGER in the event �SANGER is, or remains more than ten (10) days delinquent on any payment required to be paid by SANGER to DENTON under the terms of this Agreement Section 5 Notices- Any notice required or desired to be given from one party to the other party to this Agreement shall be in writing and shall be given and shall be deemed to have been served and received (whether actually received or not) if (i) delivered in person to the address set forth below, (n) deposited in an official depository under the regular care and custody of the United States Postal Service and sent by certified mail, return receipt requested, and addressed to such party at the address hereinafter specified, or (ni) delivered to such party by couner-receipted delivery Either party may designate another address for notice, but until written notice of such change is actually received by the other party hereto, the last address of such party designated for notice shall remain such party's address for notice to be provided hereunder ADDRESS FOR NOTICE City Manager City of Denton, Texas 215 East McKinney Avenue Denton, Texas 76201 City of Sanger, Texas and to Denton Municipal Electric Attu Sharon Mays, Director 901-B Texas Street Denton, Texas 76201 Section 6. Attorney's Fees_ Should either party to tlus Agreement commence legal proceedings against the other to enforce the terms and provisions of this Agreement, the party losing in such legal proceedings shall pay the reasonable attorney's fees, cost of court, and related expenses of the party prevailing in any such legal proceedings Section 7. No Assignment_ Neither party hereto shall have the right to assign that party's interest in this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld Section 8. Severandity_ If any term or provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity or enforceability of the remaining terms or provisions of this Agreement shall not be affected thereby, and in lieu of each such illegal, invalid or unenforceable term or provision, there shall be added automatically to this Agreement a legal, valid or enforceable term or provision as similar as possible to the term or provision declared illegal, invalid or unenforceable Section 9. Waiver. Either DENTON or SANGER shall have the right to waive any requirement contained in this Agreement, which is intended for the waiving party's benefit, but, except as otherwise provided herein, such waiver shall be effective only if done in writing, executed by the party for whose benefit such requirement is intended No waiver of any breach or violation of any term of this Agreement shall be deemed or construed to constitute a waiver of any other breach or violation, whether concurrent or subsequent, and whether of the same or of a different type of breach or violation Section 10. Governing Lawo Venue_ This Agreement and all of the transactions contemplated herein shall be governed by and construed in accordance with the laws of the State of Texas The provisions and obligations of this Agreement are performable in Denton County, Texas such that exclusive venue for any action ansing out of this Agreement shall be in Denton County, Texas Section 11. Paragraph Headings_ Construction. The paragraph headings contained in this Agreement are for convenience only and shall in no way enlarge or limit the scope or meaning of the various and several paragraphs hereof Both parties have participated in the negotiation and preparation of this Agreement and this Agreement shall not be construed either more or less strongly against or for either party Section 12. Binding Effect_ Except as limited herein, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns Section 13. Bender. Within this Agreement, words of any gender shall be held and construed to include any other gender, and words in the singular number shall be held and construed to include the plural, unless the context otherwise requires Section 14. Counterparts- Tlus Agreement is executed in two (2) original counterparts, each of which shall be deemed an original Section 15. Entire Agreement It is understood and agreed that this Agreement contains the entire agreement between the Parties and supersedes any and all prior agreements, arrangements or understandings between the parties relating to the subject matter of this Agreement No oral understandings, statements, promises or inducements contrary to the terms of this Agreement exist This Agreement cannot be changed, modified, or terminated orally and may only be changed, modified, or terminated in a writing signed by both Parties Section 16. Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed by the Parties hereto or by any third party to create the relationship of principal and agent, or of partnership, or of joint venture, or of any association whatsoever between the Parties, it being expressly understood and agreed that no provision contained in tlus Agreement, nor any act or acts of the Parties hereto shall be deemed to create any relationship between the Parties other than the relationship of independent parties contracting with each other solely for the purpose of effecting the provisions of this Agreement IN WITNESS WHEREOF, this Agreement i x_ec ted by the du a thonzed officials and officers of DENTON and SANGER on this the 'Jl — da of 2000, to be effective as of the day of 12000 "DENTON" CITY OF DENTON, TEXAS A Municipal Corporation MANAGER ATTEST, JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By Y.-Y ! 1 ATTEST 0 CITY SECRETARY "SANGER" CITY OF SANGER, TEXAS A Municipal Corporation MAYOR S \Our Documents\Contmcts\00\Sanger Electnc Dtsmbunon System Agrmt 10 00 DME doc