1997-119C \WPDOCS\ORD\MAINT ORD
ORDINANCE NO !!9
AN ORD, INANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE MAYOR 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 THE CITY OF DENTON MUNICIPAL ELECTRIC
UTILITY WILL PERFORM SERVICES RELATING TO THE MAINTENANCE AND
OPERATION OF THE ELECTRIC DISTRIBUTION SYSTEM OF THE CITY OF
SANGER, PROVIDING FOR THE EXPENDITURE OF FUNDS THEREUNDER, AND
PROVIDING FOR AN EFFECTIVE DATE
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
SECTION I That the Mayor is authorized to execute the
Electric Distribution System Maintenance and Operation Agreement
between the C~ty of Denton and the City of Sanger (the "Agree-
ment''), a copy of which is attached hereto
~ That the City Council is hereby authorized to
expend the funds relating to the performance of the Agreement by
the Clty of Denton Municipal Electric utilities
~ That th~s ordznance shall become effective
~mmedlately upon ~ts passage and approval
PASSED AND APPROVED th~s the /~ day of ~, 1997
~AC~
ATTEST
JENNIFER WALTERS, CITY SECRETARY
APPRQVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
THE STATE OF TEXAS §
COUNTY OF DENTON §
ELECTRIC DISTRIBUTION SYSTEM I~INTEN~I~CE
~ND OPEi~TION AGREEMENT
THIS AGREEMENT (,,Agreement") is made and entered into by and
between the City of Denton, Texas ("DENTON"), a Municipal Corpora-
tion, acting by and through its Denton Municipal Electric Utility
d~vlsion, and the city of Sanger, Texas, a Municipal Corporation
("SANGER").
Section 1. Scope of Work/Services to be provided.
Operations, maintenance and minor construction pertaining to the
Electric Distribution system for the City of Sanger.
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 servlce (one/two
pole extensions, 100-200 ft. underground extensions,
transformer, service w~re, etc.)
PROVIDED HOWEVER, Construction cost hereunder (material,
labor & equipment) shall not exceed $25,000.00 total during
the term of this Agreement Any other construction
project(s) requiring over $25,000 00 for construction costs
shall be handled under separate contract, subject to the
approval of the Denton City Council.
Section 2. ~ates and Charaes
(A) SANGER shall pay DENTON, for services provided under th~s
Agreement, the following:
(1) For the work performed by DENTON under Section 1 herein-
above, SANGER shall pay DENTON the sum of $8,000.00 per
month compensation for services performed, and equipment
utilized by DENTON in the performance of this Agreement;
(2) The cost of materials, supplies, equipment rentals, outside
or independent contractor fees and expenses, sales, use and
similar taxes, and other m~scellaneous costs d~rectly
related to the provision of services under thls Agreement
for SANGER, all of which shall be invoiced at the actual
cost incurred by DENTON;
(3) An administrative charge equal to 10% of the sum of the
amounts invoiced under subsection 2(A) (2), hereinabove.
(B) DENTON shall deliver to SANGER an invoice for services
performed and materials furnished on a monthly basis. All invoices
shall be due upon receipt. Any invoice which remains unpaid more
than 30 days after receipt by SANGER shall bear interest at the
highest legal rate.
(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.
Ssotio~ 3. W&rranties~ ~{mitations.
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
fashion. DENTON shall not be liable for any damages, costs or
losses caused by the interruption, suspension, or curtailment or
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 act or omission by any person or entity not
subject to the 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 BANGER, considering the needs of Denton's
own electric utility customers first. DENTON shall be under no
obligation to provide assistance to BANGER 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 entire liability of DENTON from any cause, whether by
contract, tort or otherwise, shall not exceed the total sum
received by DENTON under this Agreement.
D) THE W/~/~RANTIES CONTAINED IN THIS AGREEMENT ARE IN LIEU OF ALL
OTHER WARRANTIESv EXPRESS OR IMPLIED~ INCLUDINGv WITHOUT LIMIT&-
TION~ ANY WARRANTIES OF MERCHANTABILITY OH FITNESS FOR A PARTICULAR
PURPOSE. THE SERVICE BEING pROVIDED UNDER THIS ~GREEMENT IS BEING
SOLD 'AS IS". BANGER AGREES THaT DENTON SHALL NOT BE LIABLE FOR
~ 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.
#atntenance and ~rat$~ Agreement - Page 2
Section 4. Terms Termination.
(A) This Agreement shall be for a primary term of thirty (30) days.
(B) This Agreement shall be automatically renewed for successive
thirty (30) day period, until SANGER provides written notice to
DENTON of termination at least ten (10) working days prior to the
end of a thirty (30) day term or renewal term of this Agreement.
This provision is subject to the total one (1) year termination
date set forth in Section 4 (C) herelnbelow.
(C) This Agreement, notwithstanding the automatic renewal terms
provided for in Section 4 (B) hereinabove, shall in all events
terminate one year after its effective date.
(D) DENTON may terminate this Agreement, at will and without cause,
by giving SANGER thirty (30) days written notice of termination.
(E) DENTON may terminate this Agreement on 10 days written notice
in the event SANGER is or remains more than 10 days delinquent on
any payment required to be paid to Denton under the terms of this
Agreement.
Section $. ~ 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; (ii) deposited in an
official depository under the regular care and custody of the
United States Postal Service located within the confines of the
United States of America and sent by certified mail, return receipt
requested, and addressed to such party at the address hereinafter
specified; or (iii) delivered to such party by courier receipted
delivery. Either party may designate another address within the
confines of the continental United States of America for notice,
but until written notice of such change is actually received by the
other party, the last address of such party designated for notice
shall remain such party's address for notice:
ADDRESS FOR NOTICE:
City of Denton, Texas city of Sanger, Texas
Municipal Electric Utility
Attn: Sharon Mays
Director of Electric Utilities
901-B Texas Street
Denton, Texas 76201
commence legal proceedings again enforce the terms
and provisions of this Agreement, the party losing in such legal
proceedings shall pay the reasonable attorney's fees and expenses
(including, but not limited to expert witness fees and deposition
expenses) of the party prevailing in such legal proceedings.
Section ?. ~ Neither party shall have the right to
assign that party's interest in this Agreement without the prior
written consent of the other party.
Section 8. ~ If any term or provision of this
Agreement is held 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. ~ 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 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. Governina Laws 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 arising out of this
Agreement shall be in Denton County, Texas.
Section 11. ParaaraDh Headinas~ 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 partici-
pated 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. ~ Except as limited herein, the terms
and provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and assigns.
#a~ntena~e a~ O~eratfon AQnewnt - Page 4
Bsotion 13. ~ Within this Agreement, words of any gender
shall be held and construed to include any other gender, and words
iht he singular number shall be held and construed to include the
plural, unless the context otherwise requires.
Section 14. ~ This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original,
and all of which shall constitute but one and the same instrument.
Section 15. Bntire ~areement. 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.
No oral understandings, statements, promises or inducements
contrary to the terms of this Agreement exist. This Agreement
cannot be changed or terminated orally and may only be changed or
terminated in a writing signed by both parties.
Section 16. Relationshi~ of Parties. Nothing contained in th~s
Agreement shall be deemed or construea 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 this Agreement nor any act or
acts of the parties hereto shall be deemed to create any relation-
ship 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.
EXECUTED on this the /~'~ day of ~~ , 1997, to be
effective as of the 1st day of May , 1997.
CITY OF DENTON, TEXAS
JACK~LLER, MAYOR
#alntenance and Operation Agreement - Page 5
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
CITY OF SANGER, T~
ATTEST:
%,. ~'~ x ~,%,,,,,'~
end Operation Agreement - Page 6