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HomeMy WebLinkAboutResolution - 2010-R0012 - Big Country Electric Cooperative Lake Alan Heney Pump Station Montford Dam - 01/14/2010Resolution No. 2010-R0012 January 14, 2010 Item No. 5.17 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, an Agreement for certain engineering, procurement and construction services concerning electrical service to the Lake Alan Henry pumping station, by and between the City of Lubbock and Big Country Electric Cooperative, Inc., and related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this ATTEST: C-Q� -- Rebecca Garza, City Secretary APPROVED AS TO CONTENT: 14th day of January__, 2010. TO MARTIN, �MAY6—R--- APPROVED AS -TO FORM: City Attorney gs:ccdocs Res. Agreement- Big Country Electric Cooperative 01.13.10 Resolution No. 2010-R0012 AGREEMENT BETWEEN BIG COUNTRY ELECTRIC COOPERATIVE, INC. AND CITY OF LUBBOCK, TEXAS CONCERNING SERVICE TO LAKE ALAN HENRY PUMPING STATION THIS AGREEMENT BETWEEN BIG COUNTRY ELECTRIC COOPERATIVE, INC. AND CITY OF LUBBOCK, TEXAS CONCERNING SERVICE TO LAKE ALAN HENRY PUMPING STATION (hereinafter referred to as "Agreement") is made this 14th day of January, 2010, between Big Country Electric Cooperative, Inc. ("Cooperative"), a Texas electric cooperative, and the City of Lubbock, Texas, a Texas home rule municipal corporation ("City"). For purposes of this Agreement, "Party" shall mean Cooperative or City, as appropriate, and "Parties" shall mean Cooperative and City. WHEREAS, City wishes to obtain electric service from Cooperative for service to the Lake Alan Henry pumping station ("New Load"); and WHEREAS, Cooperative wishes to provide such electric service to City; and WHEREAS, in order to provide such service, Cooperative must make arrangements with other entities for delivery of wholesale electricity to Cooperative for resale to City at City's delivery point; and WHEREAS, in order to provide such retail service to City, Cooperative has incurred or will incur certain costs related to study of the impact of the initiation of service to City including, but not limited to, the cost of charges imposed on Cooperative by third parties for engineering studies of the impact of initiation of service to City, including, without limitation, a system impact study, a feasibility study and/or a facilities study ("Study Costs"); and WHEREAS, in order to provide such retail service to City, Cooperative also has incurred and will incur certain additional costs related to the initiation of service to City including, but not limited to, legal and administrative charges, and the cost of metering and delivery point facilities (referred to herein collectively with Study Costs as "Cooperative Costs"); and WHEREAS, service to the New Load also will require construction of transmission and distribution lines and a substation necessary to serve the New Load; and WHEREAS, City wishes to pay, reimburse, or otherwise hold Cooperative harmless for all Cooperative Costs, subject to the conditions set forth herein; and AGREEMENT BETWEEN BIG COUNTRY ELECTRIC COOPERATIVE, INC. AND CITY OF LUBBOCK, TEXAS CONCERNING SERVICE TO LAKE ALAN HENRY PUMPING STATION PAGE 1 OF 8 WHEREAS, City will utilize such electric service only for operation of its own facilities and equipment and not for resale to third parties; and WHEREAS, Cooperative and City wish to establish responsibility for engineering, procuring and constructing transmission and distribution lines, a substation, metering, protective equipment, and such other facilities as are necessary to serve the New Load ("Facilities") acquisition of real property or real property rights necessary for such construction, operation, maintenance and use of the Facilities, and their respective cost responsibilities for such construction, real property acquisition, operation, maintenance and use; NOW THEREFORE, the Parties agree as follows: Section 1 Location and Projected Load. City has requested new service to the Lake Alan Henry pumping station, located near Justiceburg, Garza County, Texas. Section 2 Obligations. The Parties' obligations are as follows: (a) Cooperative will study, or cause to be studied, the impact of service to the New Load, including any transmission upgrades. (b) City, at its sole expense, shall acquire, or cause to be acquired, all real property or other property rights necessary for construction and ownership of the transmission and distribution lines and substation needed to serve the New Load. (c) City, at its sole expense, shall install, or cause to be installed, (1) a transmission line from Cooperative's delivery point facilities to the new substation (2) a new substation and (3) the distribution line, each as necessary to provide service to the New Load. City shall determine routing for transmission and distribution lines and the location of the new substation; provided, however, that the new transmission line shall interconnect with BCEC's delivery point for service from Golden Spread Electric Cooperative, Inc. at one of the three potential delivery points identified on Exhibit A,. City shall complete such construction no less than 30 days prior to August 1, 2011 or no less than 30 days prior to such later date that City notifies Cooperative in writing that service is required at Lake Alan Henry ("Completion Deadline"). However, in any event the City is required to give the Cooperative an additional final notice of the date the Facilities need to be energized not later than 30 days prior to such date. (d) Cooperative will install, or cause to be installed, all metering and delivery point facilities at the point selected by the City from the potential points identified on Exhibit A. City shall provide Cooperative property rights and such access rights to lands the City owns or controls as needed for metering and delivery point AGREEMENT BETWEEN BIG COUNTRY ELECTRIC COOPERATIVE, INC. AND CITY OF LUBBOCK, TEXAS CONCERNING SERVICE TO LAKE ALAN HENRY PUMPING STATION PAGE 2 OF 8 facilities. Cooperative shall complete all metering and delivery point construction prior to the Completion Deadline. (e) All construction by Cooperative or City pursuant to this Agreement shall conform to specifications used by Cooperative for such construction on its electric system, which shall be provided by Cooperative to City, and with Good Utility Practice, which shall mean the practices, methods and acts (including but not limited to the practices, methods, and acts engaged in or approved by a significant portion of the electric utility industry) that, at a particular time, in the exercise of reasonable judgment at the time a decision was made, would have been expected to accomplish the desired result in a manner consistent with law, regulation, codes, standards, equipment manufacturer's recommendations, reliability, safety, environmental protection, economy, and expedition. (fl City will pay, reimburse, or otherwise hold Cooperative harmless for all reasonably incurred Cooperative Costs. (g) Cooperative has obtained a good faith estimate of Cooperative Costs determined to date, which is attached hereto as Exhibit B. The parties agree that all Costs listed on Exhibit B were or would be reasonably incurred. Cooperative will provide City with additional good faith estimates of, and invoices for, all additional Cooperative Costs that may be required in connection with service to the New Load. Cooperative shall obtain prior approval from City before incurring any cost greater than 125% of the Good Faith Estimate cost(s) for such item or activity. All such reasonably incurred charges will be promptly paid by City to Cooperative upon receipt of an invoice from Cooperative and will be netted against the final amount due to Cooperative from City. (h) Cooperative may invoice City for any amounts that Cooperative estimates it will incur directly or will be required to pay to third parties within the next thirty (30) days. (i) All payments due to Cooperative shall be paid by City within thirty (30) days after the invoice for such costs is mailed to City ("Due Date"). Payment shall be made by wire transfer to the bank designated in Exhibit C. Cooperative may amend Exhibit C by written notice to City. A final invoice shall be issued within sixty (60) days following the determination by Cooperative that all Cooperative Costs have been properly identified. The final invoice will show the balance due from City (or any over -payment to be refunded by Cooperative). Cooperative may levy a late charge of 1% per month for all amounts due and owing not paid within 30 days of the date City receives invoice for same. Section 3 Operation, Maintenance and Use of Facilities. With respect to operation, maintenance and use of the facilities to be constructed by City pursuant to this Agreement ("Facilities"), the Parties agree that City shall operate and maintain AGREEMENT BETWEEN BIG COUNTRY ELECTRIC COOPERATIVE, INC. AND CITY OF LUBBOCK, TEXAS CONCERNING SERVICE TO LAKE ALAN HENRY PUMPING STATION PAGE 3OF8 the Facilities pursuant to Good Utility Practice, either utilizing its own personnel or a qualified contractor. Section 4 Notices. Any notice, demand, request, or communication required or authorized by this Agreement shall be mailed by certified mail, return receipt requested, with postage prepaid, to the Parties as follows: For Cooperative: Big Country Electric Cooperative, Inc. Attention: Fredda Buckner, General Manager Mailing Address P.O. Box 518 Roby, Texas 79543 Messenger Address 1010 W. South 1 s` St. Roby, Texas 79543 Phone (325) 776-3901 (325) 776-2246 (Fax) For City: City of Lubbock, Texas Attention: City Manager Mail Address P.O. Box 2000 Lubbock, Texas, 79457 Messenger Address 1625 13th Street, Room 206 Lubbock, Texas 79401 Phone (806)775-2003 This designation and the titles of the person to be notified or the address of such person may be changed at any time by written notice. AGREEMENT BETWEEN BIG COUNTRY ELECTRIC COOPERATIVE, INC. AND CITY OF LUBBOCK, TEXAS CONCERNING SERVICE TO LAKE ALAN HENRY PUMPING STATION PAGE 4 OF 8 Section 6 Term. This Agreement shall become effective upon execution and shall remain in effect for the lesser of five (5) years or until 60 days after the commencement of commercial operation of the Customer Facilities necessary for service to the New Load. Sections 2(f), 2(g), 2(h), 2(i), 20), 4, 7(b), 7(c), 7(g) and 7(e) shall survive termination of this Agreement. Section 7 Miscellaneous. (a) Headings. Article headings and titles are included for the convenience of Parties and shall not be used to construe the meaning of any provision of this Agreement. (b) Waiver of Consequential Damages. In no event shall one Party be liable to the other Party under this Agreement for any indirect, special, exemplary, punitive or consequential damages, including but not limited to, loss of profit, and/or cost of replacement power, interest charges, cost of capital, or other such damages from any cause howsoever arising. (c) Limitation of Liability. Except for the payment of amounts properly due hereunder, a Party shall not be liable to the other Party in the event it is prevented from providing service contracted for hereunder, in whole or in part, due to uncontrollable forces which, by the exercise of due diligence and foresight, could not reasonably have been avoided. The Party providing service shall be prompt and diligent in attempting to remove the cause of its failure to perform, and nothing herein shall be construed as permitting that Party to continue to fail to perform after said cause has been removed; however, the Party providing service shall not be obligated to agree to any settlement of a strike or labor dispute which, in that Party's sole opinion, may be inadvisable or detrimental to such Party. (d) No Third Party Beneficiary. No provision of this Agreement shall in any way inure to the benefit of any third party so as to constitute any such person as a third party beneficiary under this Agreement, or of any one or more of the terms hereof, or otherwise give rise to any cause of action in any person not a party hereto. (e) INDEMNITY. SUBJECT TO THE PARAGRAPHS ENTITLED "LIMITATION OF LIABILITY" AND "WAIVER OF CONSEQUENTIAL DAMAGES" OF THIS SECTION, CITY SHALL, TO THE EXTENT ALLOWED BY LAW, AT ALL TIMES INDEMNIFY, DEFEND, AND SAVE COOPERATIVE HARMLESS FROM, ANY AND ALL DAMAGES, LOSSES, CLAIMS, INCLUDING CLAIMS AND ACTIONS RELATING TO INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO PROPERTY, DEMANDS, SUITS, RECOVERIES, PENALTIES, COSTS AND EXPENSES, COURT COSTS, ATTORNEY FEES, AND ALL OTHER OBLIGATIONS BY OR TO THIRD PARTIES, ARISING OUT OF OR RESULTING FROM THIS AGREEMENT ON BEHALF OF THE CITY, AGREEMENT BETWEEN BIG COUNTRY ELECTRIC COOPERATIVE, INC. AND CITY OF LUBBOCK, TEXAS CONCERNING SERVICE TO LAKE ALAN HENRY PUMPING STATION PAGE 5 OF 8 EXCEPT TO THE EXTENT CAUSED BY THE NEGLIGENCE OR INTENTIONAL WRONGDOING BY COOPERATIVE. (f) Governing Law. This Agreement shall be interpreted and governed by the laws of the State of Texas, without reference to conflicts of laws. Venue shall be in Garza County, Texas. (g) Successors and Assigns. This Agreement shall be binding upon the respective Parties, their successors and assigns, on and after the effective date hereof. Except as otherwise provided herein, none of the provisions of this Agreement, whether in whole or in part, shall be assigned by either Party to any third party without the written consent of the other Party, which shall not be unreasonably withheld, except that a Party, without the consent of the other Party, may assign to a successor in the event of a merger or reorganization, and such successor shall be bound by all terms and conditions hereof and shall assume all obligations of the assignor, and provided further that the assignor shall not be relieved of its obligations under this Agreement, and provided further that this Section is not a restriction on a Party's ability to pledge its electric transmission or distribution system as security under a mortgage or trust indenture. (h) Severability. If any governmental agency or court of competent jurisdiction holds that any provision of this Agreement is invalid, or if, as a result of a change in any federal or state law or constitutional provision, or any rule or regulation promulgated pursuant thereto, any provision of this Agreement is rendered invalid or results in the impossibility of performance thereof, the remainder of this Agreement not affected thereby shall continue in full force and effect; provided, however, if the impact of such holding or promulgations materially increases the cost of providing service hereunder or materially increases or decreases the amount of compensation to be paid for services rendered hereunder, either Party, within ninety (90) days after the issuance of such holding or promulgations, may terminate this Agreement by giving not less than thirty (30) days prior written notice to the other Party. In any event, Parties shall promptly renegotiate in good faith new provisions to restore this Agreement as nearly as possible to its original intent and effect. (i) Representations. Representations and Warranties. Each Party hereto hereby represents to the other Parties that, as of the date of this Agreement: (1) It is a corporation or home rule municipal corporation duly organized or formed, validly existing and in good standing under the laws of the state of its incorporation or formation, and is duly qualified to do business as a corporation or home rule municipal corporation and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification. It has full corporate or municipal power and authority to incur the obligations provided for in this Agreement. AGREEMENT BETWEEN BIG COUNTRY ELECTRIC COOPERATIVE, INC. AND CITY OF LUBBOCK, TEXAS CONCERNING SERVICE TO LAKE ALAN HENRY PUMPING STATION PAGE 6 OF 8 (2) This Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding obligation enforceable against it in accordance with its terms. (j) Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and the Parties hereto may execute this Agreement by signing any such counterpart. (k) Force Majeure. Except for the obligations of the parties regarding payments under this Agreement, either party shall be excused from performance and shall not be considered to be in default in respect to any obligation hereunder if failure of performance shall be due to an event of Force Majeure. Force Majeure shall be an act or event that is the cause of the delay or prevents performance by either party that is beyond the reasonable control of the party. Such events include, war, riot, civil disobedience, an act of terror, an act of God including weather catastrophe, or sabotage. Force Majeure shall not mean any act of event resulting from the fault or negligence of the party claiming Force Majeure. Once such Force Majeure event has passed, the party claiming Force Majeure shall make best efforts to remedy the lack of performance in an expedient fashion. (1) Amendments. This Agreement may not be amended, supplemented or otherwise modified except by a written instrument signed by Cooperative and City. (m) Joint Preparation. This Agreement shall be considered for all purposes as prepared through the joint efforts of the Parties and shall not be construed against one Party or the others as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution hereof. [Remainder of this page intentionally left blank.] AGREEMENT BETWEEN BIG COUNTRY ELECTRIC COOPERATIVE, INC. AND CITY OF LUBBOCK, TEXAS CONCERNING SERVICE TO LAKE ALAN HENRY PUMPING STATION PAGE 7OF8 IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first written above. BIG COUNTRY ELECTRIC COOPERATIVE, INC. By: Fredda Buckner Title: Chief Executive Officer and General Manager CITY OF LUBBOCK, TEXAS � 1 z6g, � By: Tom Martin Title: Mayor ATTEST 9 -)(-- By: Re ecca Garza Title: City Secretary APPROVED AS TO CONTENT M 4u �� By: Marsha Reed, P.E. Title: Chief Operations Officer APPROVED AS TO FORM ch Bra Brady & Co. Attorney for City of Lubbock AGREEMENT BETWEEN BIG COUNTRY ELECTRIC COOPERATIVE, INC. AND CITY OF LUBBOCK, TEXAS CONCERNING SERVICE TO LAKE ALAN HENRY PUMPING STATION PAGE 8 OF 8 Resolution No. 2010-R0012 Exhibit A POTENTIAL DELIVERY POINTS AGREEMENT BETWEEN BIG COUNTRY ELECTRIC COOPERATIVE, INC. AND CITY OF LUBBOCK, TEXAS CONCERNING SERVICE TO LAKE ALAN HENRY PUMPING STATION FEW d Substation ,de Kitten) Lubbock w Pumps Resolution No. 2010-R0012 Exhibit B GOOD FAITH ESTIMATE OF COOPERATIVE AGREEMENT BETWEEN BIG COUNTRY ELECTRIC COOPERATIVE, INC. AND CITY OF LUBBOCK, TEXAS CONCERNING SERVICE TO LAKE ALAN HENRY PUMPING STATION Metering/Switch Structure (metering & protective equipment at the take -off) Item Estimate Scope Substation Package $100,000 Structure, Switch (1), PTs, CTs, grounding Motor Operator $5,000 Fence $10,000 240' Site grading $15,000 70'x 70' Outdoor Cabinet $3,000 SCADA $10,000 Land $20,000 Construction $75,000 Foundations, construction Design Engineering $50,000 Construction Inspection $20,000 Gravel $40,000 Testing $12,000 Soil testing, final checkout Total $360,000 Current Costs: Legal $39,000 Engineering $8,000 BCEC Labor & OH $8,000 Total $55,000 Estimated Future Costs: Legal $60,000 Engineering $30,000 BCEC Labor & OH $25,000 XCEL Study $20,000 Lubbock has paid -$20,000 Total $115,000 Total Estimate $530,000 Resolution No. 2010-R0012 Exhibit C BCEC WIRE TRANSFER PAYMENT INFORMATION AGREEMENT BETWEEN BIG COUNTRY ELECTRIC COOPERATIVE, INC. AND CITY OF LUBBOCK, TEXAS CONCERNING SERVICE TO LAKE ALAN HENRY PUMPING STATION C-1 TIB DALLAS 1110 10 170 Further Credit First National Bank — Rotan Texas Account #1002583 Final Credit Big Country Electric Cooperative MMA OS -638-3