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R2001-0022 02-12-01 RESOLUTION NO. R2001-22 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO ENTER INTO A CONTRACT WITH THE TEXAS GENERAL LAND OFFICE FOR THE DISCOUNTED PURCHASE OF ELECTRICITY FOR SELECT CITY FACILITIES. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain contract by and between the City of Pearland and the Texas General Land Office, a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved. Section 2. That the City Manageror his designee is hereby authorized to execute and the City Secretary to attest a contract with the Texas General Land Office for the discounted purchase of electricity for select City facilities. PASSED, APPROVED and ADOPTED this the 12 dayof February ., A.D., 2001. TOM REID MAYOR ATTEST: APPROVED AS TO FORM: DARRIN M. COKER CITY ATTORNEY Exhibit "A" Resolution No. R2001-22 eliant Ener TEXAS GENERAL LAND OFFICE ELECTRIC' SALES AGREEMENT CUSTOMER: Ci.ty of Pearland 3519 Liberty Drive Pearland, Texas 77581-5416 Tel: Fax: E-mail: SELLER: Texas General Land Office Reliant Energy Retail, Inc., Agent Teresa Kelly Program Director P.O. Box 4567 Houston, TX 77210-4567 Tel: 713-207-3515 Fax: 713-207-9161 FACILITIES: POWER SALES: TERM: PRICE: Set out on Appendix A, attached hereto, and as modified from time to time. Customer agrees to purchase and Seller agrees to sell all of Customer's electricity requirements for the Facilities during the Term stated below. This Agreement shall become effective upon the date (as evidenced by the Customer's first bill hereunder) service is first supplied under this Agreement and, unless earlier terminated, shall expire at 11:59 p.m. on December 31, 2003. This Agreement may be terminated by either Customer or Seller effective at, or any time after, 11:59 p.m. on December 3 I, 2001 by giving written notice of such termination to the other Party at least sixty (60) days in advance of the date of termination. This Agreement may be terminated at any time prior to expiration of the Term in the circumstances specified in, and subject to the terms and conditions in the Default and State Funding provisions of the General Terms and Conditions. The Texas General Land Office (GLO) shall have the right to terminate this Agreement upon sixty (60) days advance notice if its agreements for providing the electricity hereunder terminate. Customer shall pay Seller a charge for each kWh of electricity under the terms of this Agreement. For each billing cycle, the amount due hereunder shall be the Base Rate, less 9.4% of such Base Rate, plus (a) the Fuel Charge; and (b) any applicable taxes or fees imposed by governmental authorities with respect to this Agreement for the sale or delivery of electricity to the Customer during such billing cycle. City of Peadand - CRA.doc eliant Ener . The above charge for electricity is an all inclusive charge and includes energy, capacity, ancillary services, transmission and distribution charges as well as your Host Utility's transition charge. THE PERSON SIGNING THIS AGREEMENT ON YOUR BEHALF MUST BE AUTHORIZED TO DO SO. PLEASE READ THE GENERAL TERMS AND CONDITIONS WHICH ARE INCORPORATED AS PART OF THIS AGREEMENT. TEXAS GENERAL LAND OFFICE: David Dewhurst Title: Commissioner, General Land Office CUSTOMER:By: ~ ~~.~ Printed Name: A1 an Muel l er Date: Title: Interim City Manager Date: 2/13/01 AGENT: Teresa A. Kelly Title: Director, GLO Program Date: '~ "Y~) -©t DIV._ City of Peadand - CRA.doc APPENDTX A CITY OF PEARLAND LIST OF ACCOUNTS Account Number 423921712009 473930232108 513932807408 503932022828 238092317802 483930564552 483930419008 473930270001 191931981001 238057517602 191931927651 238022373701 191932061091 238005331601 238050801102 191931912008 238028312001 238051073501 Service Address 4014 Mc Lean 2838 Mc Lean 3702 Alice St 3901 Liberty 9334 Sundown Dr 1702 Oakbrook Dr 4103 W Walnut 2337 Hatfield Rd 2718 Green Tee # 1 13711 Suburban Garden Rd 2300 Golfcrest 2425 S Grand 2806 1/2 Country Club 2111 1/2 Tipperary Dr 1310 1/2 Chelsea Ln 2913 Green Tee 6211 West Oaks Cir N 3221 Nc Lean Additional ]:nfo Definitions: GENERAL TERMS AND CONDITIONS FOR TEXAS GENERAL LAND OFFICE SALES AGREEMENT 1. ' The term "Base Rate" shall mean, for any billing cycle, the charge calculated by determining the charges, excluding the Fuel Charge and the Franchise Fee credit, if applicable, that would be due from Customer under the Host Utility's currently applicable tariff for sales of electricity to the rate class MGS or LGS of which Customer was a member as of the date of th{s Agreement. The term "Force Majeure" shall mean an unforeseen occurrence or event, which in the exercise of due diligence, is beyond the reasonable control of the Party claiming excuse, and which partially or entirely prevents that Party's performance of its obligations, and shall include acts of God; strikes, lockouts or other industrial disturbances; acts of public enemy, wars, blockades, insurrections, civil disturbances and riots, and epidemics; landslides, lightning, earthquakes, fires, storms, hurricanes and threats of hurricanes, floods and washouts; arrests, orders, requests, directives, restraints and requirements of the government and governmental agencies, either federal or state, civil and military (but excluding, with respect to obligations of Seller, any such directive, restraint or requirement imposed by Seller); failure of necessary transmission or distribution facilities, for whatever cause, that prevents the delivery of electricity hereunder; demonstrable outages of computer control equipment and/or databases and .telecommunication equipment necessary for transmission or receipt of electronic control signals but only to the extent such outage prevents the delivery of electricity; reductions or interruptions in service as a result of emergency conditions which are necessary to protect generating or transmission facilities or the reliability of transmission facilities, and other causes of a similar nature not reasonably within'the control of the Party claiming suspension. The term "Fuel Charge" shall mean, the fuel charge applicable to such month (including revisions or adjustments thereto and including any surcharges) under Reliant Energy HL&P's Rider FC (Distribution Voltage) and any Rider FC-ADJ (MGS-Dist. or LGS-Dist.). The term "Host Utility" shall mean your electric utility, which owns the power lines and equipment and delivers electricity to the facilities listed on the attached Appendix A. The term "kilowatt hour" (kWh) shall mean one thousand watts of eleCtric energy or electricity used in one hour. The term "Party" shall mean either Seller or Customer. The term "Parties" shall mean Seller and Customer. Reliant ESSA - CITY T&C ONLY.doc 8. The term "PUC" shall mean the Public Utility Commission of Texas. The term "Seller" shall mean the Texas General Land Office acting through its agent, Reliant Energy Retail, Inc. and is sometimes referred to herein as "we ....us" and "our". 10. The term "Tariff" shall mean the schedule of a Host Utility containing all rates and charges stated separately by type of service and the terms and conditions of service by the Host Utility. Scope: Subject to the provisions of this Agreement and any applicable Tariffs, we agree to sell and you agree to purchase your electricity requirements for the facilities identified in Appendix A hereto during the term of this Agreement. The date of initial deliveries under this Agreement is dependent on the Host Utility's processing such request, the date your meter is read by the Host Utility, approvals of any regulatory body, and your satisfaction of our standards for extending credit. You hereby appoint Seller as your exclusive limited agent and authorize us to(i) obtain your electricity usage data, payment and credit history from Host Utility, (ii) make nominations to enable us to deliver your electricity, (iii) execute required documents on your behalf necessary to commence service under this Agreement and (iv) perform such other tasks as are necessary to 'provide your electricity pursuant to this Agreement. Price. CustOmer shall pay Seller the Price set out' on the Electric Sales Agreement. The Price shall remain in effect and shall not be changed throughout the Term unless mutually agreed upon by the Parties or unless changed as a result of action of regulatory authorities having jurisdiction.' .Payment. Seller shall directly bill Customer on a monthly basis for its electric service in accordance with the Agreement, utilizing the Host Utility"s billing cycle. As soon as practicable after the end of each billing cycle, Seller shall render to Customer a statement setting forth the total number of kWh (rounded to the nearest whole kWh) delivered to Customer during the most recently completed billing cycle. Payment shall be due within thirty (30) days of Seller's statement in accordance with payment instructions set forth in such statement. If Customer should fail to remit the full amount payable when due, interest of one percent (1%) per month of the outstanding balance will be assessed. If Customer, in good faith, disputes any amount on any statement, Customer will pay to Seller any undisputed amount. Seller promptly shall provide supporting documentation and such other information as Customer may reasonably request for purposes of verifying the disputed amount. Any disputed and withheld amounts, if determined to have been billed properly, will be paid by Customer to Seller promptly together with interest from the original due date at the rate of one percent (1%) per month. Any amounts improperly billed and collected from Customer shall be credited to Customer against its next bill, together with interest at the rate of one percent (1%) per month. Reliant ESSA - CITY T&C ONLY.doc 2 If service, under this Agreement is terminated, Customer, or Seller, as the case may be, shall pay the balance owed under this Agreement within ten (10) days of invoice. Unless excused from this requirement, electronic fund transfer ("EFT") is the designated payment method, then payments shall be made through the automated clearinghouse system in accordance with this paragraph. Each Party shall use all reasonable efforts to keep in confidence and prevent disclosure of any banking information provided by the other Party to any person who is not an authorized rePresentative of such other Party for the purpose of completing EFT transactions under this Agreement. All EFT payments made under this Agreement shall be governed by the operating rules of the national automated clearing house, association, as such rules may be revised or amended from time to time. Each Party shall pay its respective costs of transmission or receipt of EET payments pursuant to this Agreement. An EFT payment shall be (i) considered timely if completed on the payment due date and (ii) deemed completed when the receiving Party's depository institution receives or has control of the payment. Each Party shall give at least thirty (30) days' advance notice in writing to the other Party of payment instructions or any changes thereto. Term: This Agreement shall' have an initial term as stated on the Electric Sales Agreement beginning on the date of first delivery by us to Host Utility for your account. Metering: Metering of electricity consumed by Customer shall be performed by the Host Utility pursuant to the Host Utility's Tariff. Contract Performance; Representations: Except for the payment of money due hereunder, the Parties' performance of their respective obligations in this Agreement shall be excused for Force Majeure events that prevent such Party's performance. The Party experiencing difficulty due to a Force Majeure event shall promptly notify the other Party, attempt to cure the Force Majeure event with all due diligence and exercise reasonable efforts to mitigate or limit the adverse effects of such Force Majeure event. Seller's obligation under this Agreement shall be to deliver the electricity to the point on the Host Utility's transmission system. The Host Utility shall deliver the electricity to Customer's meter pursuant to the Host Utility's Tariff. You represent that all information supplied to us is correct and that you are (i) validly existing, (ii) financially able to continue in business, and (iii) unaware of any situation which would alter your financial abilities and have not filed, planned to file or have had filed any bankruptcy proceeding. Any portion of this Agreement that may be deemed to be unenforceable or illegal shall not affect the enforceability or legality of the remaining terms and conditions. Seller represents that the electricity being sold to you shall have been delivered to the Host Utility in accordance with applicable law. The foregoing is in lieu of all Reliant ESSA - CITY T&C ONLY.doc 3 warranties, expressed or implied, in fact or by law with respect to the electricitY delivered hereunder, including but not limited to any warrantY as to the merchantabilitY of the electricitY or the fitness of the electricity for any particular use or purpose. THIS DOCUMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN THE PARTIES. THIS AGREEMENT SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS EXCLUDING ANY CONFLICT OF LAW RULES THAT WOULD REQUIRE REFERENCE TO THE LAWS OF ANOTHER JURISDICTION. VENUE 'OF ANY SUIT BROUGHT FOR BREACH OF THIS AGREEMENT IS FIXED IN ANY COURT OF COMPETENT JURISDICTION IN TRAVIS COUNTY, TEXAS; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT BE CONSTRUED AS A WAIVER OF SOVEREIGN IMMUNITY BY SELLER. Liabilities: Seller acknowledges the importance to Customer of a consistent supply of electricity to its Facilities, and Seller will employ all resources reasonably available to it on a commercial basis to provide a consistent supply of electricity, subject to the other. terms and conditions of this Agreement. Notwithstanding, Customer acknowledges that Seller exercises no independent control over Host Utility's facilities necessary for delivery of electricity, and Customer recognizes that Seller will have no liability or responsibility for service interruptions, fluctuations, termination or deterioration in the generation of electricity or its transmission or deterioration of service caused by any factor beyond Seller's control, including but not limited to failure of the Host Utility's transmission and/or distribution system that delivers electricity to Customer. LIABILITIES NOT EXCUSED BY REASON OF FORCE MAJEURE OR OTHERWISE SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY NOR INDIRECT DAMAGES. THERE ARE NO THIRD PARTY BENEFICIARIES TO THIS AGREEMENT. In the event that Seller fails to deliver electricity, except for a Force Majeure event, Customer's sole and exclusive remedy shall be direct damages (all other remedies or damages at law or in equity are waived) in the amount of the positive difference, if any between (a) the price (S/kWh) set forth in this Agreement multiplied by the amount of undelivered electricity (kWh) and (b) the purchase price (S/kWh) paid by Customer for replacement electricity (assuming that Customer has used commercially reasonable efforts to replace the electricity) multiplied by the amount of undelivered electricity (kWh). Credit: This Agreement is subject to credit approval by us throughout the Term. You agree to cooperate with us in establishing your creditworthiness, including the disclosure of your billing and payment history with your Host Utility. Reliant ESSA - CYI-Y T&C ONLY.doc 4 Default: In the event of default under this Agreement by Seller or Customer, the other Party may. terminate this Agreement. Termination will be effective upon the earlier of the date of notice of termination or such other date as may be required under law or Host Utility procedures for switching electric suppliers. In the event Seller terminates this Agreement due to Customer's default, Customer assumes all obligations to arrange for its electric supply. A "Default" shall have occurred iff (i) either Seller or Customer fails to perform any material term or condition of this Agreement, provided that such failure is not cured within thirty (30) days of written notice by the other Party or within another period as may be mutually agreed upon by Seller andCustomer, or (ii) Customer voluntarily or involuntarily becomes bankrupt or is forced into bankruptcy. Representations of GLO: GLO represents as part of this Agreement that, (1) the services specified above are necessary and essential and are properly within the statutory. functions and programs of GLO, (2) the proposed arrangements serve the interest of efficient and economical administration of GLO, and (3) the services, supplies or materials contracted for are not required by TX. CONST. Art. XVI, § 21 to be supplied under contract to the lowest responsible bidder. GLO further represents that it has authority to enter into this Agreement by virtue of the authority granted in TEX. NAT. RES. CODE §52.133 (Vernon Supp. 1999), in the Appropriations Act, H.B. 1, Art. IX, § 9-10.07, 76th Leg., R. S., May 24, 1999, and TEX. UTIL. CODE ANN. § 35.101 et seq., and that it has reviewed and approved this Agreement pursuant to § 31.401, TEX. NAT. RES. CODE (Vernon Supp. 1999) and 31 TEX. ADMIN. CODE § 8.1 et. seq. (West 1999). Confidentiality: This Agreement and its terms are confidential except to the extent disclosure is necessary for its implementation or disclosure is otherwise required by law. Notiees: Notices and invoices under this Agreement shall be hand delivered or transmitted by the U. S. Mail to the addresses contained on the Electric Sales Agreement. · Miscellaneous: At the request of Seller, Customer shall cooperate in obtaining from Host Utility and supplying to Seller the following information: (a) recent and past electric usage including energy and demand, (b) meter readings and data, (c) types of service including rate schedule/tariff, (d) responses to questions, and (e) EnForm m identification and password. Seller shall have the fight to use Customer's name in customer lists, and any other such literature but may not disclose any details of this Agreement. Customer shall obtain and maintain any approvals or authorizations Customer may need. Dispute Resolution: If a dispute arises that cannot be resolved to the satisfaction of the Parties, either Party may notify the other Party in writing of the dispute. If the Parties are unable to satisfactorily resolve the dispute within fourteen days of the written notification, Seller may require the issue(s) be mediated. In such event, Seller shall so notify Customer Reliant ESSA - CFFY T&C ONLY.doc and furnish Customer with the names of three mediators acceptable to Seller. Within ten (10) days.of such notice, Customer shall select a mediator from the list provided by Seller and notify Seller. The mediation shall occur within thirty (30) days of such notification. Prior to the mediation, each Party will provide the mediator with a statement of issues to be mediated, along with any other information/releases required by the mediator. Cost of the mediator shall be bome equally by the Parties. Any dispute resolution shall be conducted in accordance with the provisions the Governmental Dispute Resolution Act, TEX. GOV'T CODE ~ 2008.001 (1999). Prior State Employment: Customer certifies no...employee of Customer that has been an employee of GLO within the past year has been 0r will be materially involved in either the negotiation of or the activities contemplated by this Agreement. State Funding: This Agreement shall not be construed as creating any debt on behalf of the State of Texas and/or GLO in violation of TX. CONST. Art. III, § 49. In compliance with TX CONST. Art VIII, § 6, it is understood that all obligations of the State hereunder are subject to the availability of State funds. If such funds are not appropriated or become unavailable, this Agreement may be terminated. In that event, the Parties shall be discharged from further obligations, subject to the equitable settlement of their respective interests accrued up to the date of termination. Reliant ESSA - CiTY TEC ONLY.doc 6