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HomeMy WebLinkAboutResolution - 2009-R0274 - Agreement - South Plains Electric Cooperative- Purchase/Use, Street Light Poles - 07/28/2009Resolution No. 2009-RO274 July 28, 2009 Item No. 5.6 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 with South Plains Electric Cooperative for use/purchase of City of Lubbock street light poles and use of certain South Plains Electric Cooperative utility easements and utility poles, which is attached hereto and which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this 28th ATTEST: RebcA Garza, City Secretary APPROVED AS TO CONTENT: Gary Zheng, Director of Electric Utilities CEO-LP&L APPROVED AS TO FORM: Mat&ew L. Wade, General Counsel— LP&L day of July , 2009. Tom Martin, Mayor Contract: 9101 Resolution No. 2009—RO274 Agreement for Purchase and Sale of Street Light Poles and Joint Pole Use Agreement This Agreement entered into at Lubbock, Texas, by and between the City of Lubbock (City), its municipally owned electric utility, Lubbock Power & Light (LP&L) and South Plains Electric Cooperative (SPEC). RECITALS: WHEREAS, the City owns and operates street light utility poles located on 82nd Street from Upland Avenue to Alcove Avenue for the purpose of street lighting; and WHEREAS, SPEC desires to purchase the Street Light Poles for electric distribution service related to its retail electric utility business, with the City retaining the right to use such poles for the existing lighting arrays and reserving the future right to use such poles for other uses which do not interfere with SPEC's uses; and WHEREAS, the Street Light Poles are capable of and designed to be used for electric distribution purposes in addition to street lighting purposes; and WHEREAS, SPEC owns and operates electric utility poles from Milwaukee Avenue to Alcove Avenue on 82nd Street; and WHEREAS, LP&L desires to utilize the Street Light Poles and other SPEC utility poles for electric distribution service related to its retail electric utility business; and WHEREAS the City, LP&L and SPEC each desire to enter into this Agreement. NOW THEREFORE, for and in consideration of the covenants and conditions herein contained the sufficiency and receipt of which is acknowledged by all the parties and other valuable consideration: I. City of Lubbock Utility Pole Use/Purchase by SPEC Upland Avenue to Alcove Avenue. A. SPEC purchase and replacement of current City of Lubbock Utility Poles. 1. Pursuant to the terms and conditions contained in this Agreement, SPEC agrees to purchase from the City and the City agrees to sell to SPEC twenty-one (21) steel street light utility poles rated for electric distribution purposes currently installed from Upland Avenue to Alcove Avenue along the north side of 82nd Street in Lubbock County, Texas ("Street Light Poles") upon which the City has installed and is currently operating street lights. 2. SPEC agrees to pay to the City a sum of twenty-three thousand twenty-three and 65/100 dollars ($23,023.65) for the Street Light Poles. 3. SPEC shall not remove any of the existing wiring or install any facilities which interfere with the currently existing street light use of such poles without replacing it with the same or equal wire for the City's street lights. The City retains the prior and superior right to use the Street Light Poles to operate its street lights, including future maintenance and replacement of such street lights provided any future changes to the street lights do not interfere with SPEC's then current use of the Street Light Poles for electric distribution primary service. 4. If necessary for reliability, efficiency or safety reasons, SPEC may, at SPEC's option, remove and replace the Street Light Poles at SPEC's sole cost and expense. In the event SPEC does remove a Street Light Pole, SPEC shall replace and reinstall any street lights of the City at SPEC's sole cost and expense. The installation and techniques utilized by SPEC in reinstalling shall be subject to the inspection and approval of the City and/or its agents. In the event the City is dissatisfied with SPEC installation of the street lights, as determined solely by the City, SPEC shall correct those areas that the City is dissatisfied with and/or the City may reinstall the street lights at SPEC's sole cost and expense. The City shall provide to SPEC a list of those areas in which the installation of any replaced street light fails to satisfy the inspection of the City with as much detail as is reasonably necessary for SPEC to correct, fix or repair the street light installation. 5. SPEC grants to the City the right to continue to use the Street Light Poles, and any replacements thereof, for any and all City purposes, including without limitation, for street lighting purposes and for use by LP&L. The City or LP&L may, at the City or LP&L's option, replace the poles for joint use by the City, LP&L and SPEC. LP&L may install its electric utility distribution wires and related equipment either above or below any SPEC electric distribution wires located on the Street Light Poles. 6. City and/or LP&L shall be solely responsible, at its own expense, for the repair and maintenance of the street lights and any other facilities it is permitted to attach to the street light poles and for the provision of power and communications facilities necessary to operate the street lights. 7. Subject to Section I(A)(4) above, SPEC shall attach, install and maintain its electric distribution equipment and wires so that it does not interfere with the current operation and use of the street lights or prevent the City from using the Street Light Poles for City purposes, or interfere with the working use of City facilities thereon or which may from time to time be placed thereon by the City or LP&L. 8. SPEC shall exercise precautions to avoid damage to facilities of the City and/or LP&L and hereby assumes all responsibility for any and all loss or damage caused by SPEC to the Street Light Poles or any City facilities located on the Street Light Poles, including without limitation, the street lights. SPEC shall immediately report to the City Manager of the City of Lubbock the occurrence of any damage done by SPEC, and hereby agrees to reimburse the City for the expense incurred in making any necessary repairs. 9. The City and LP&L shall not be liable to SPEC for any interruption to service of SPEC or for interference with the operation of SPEC's distribution wires and related equipment arising in any manner out of the use of the Street Light Poles hereunder. II. LP&L Use of SPEC Pole Line. A. Milwaukee Avenue to Upland Avenue on 82nd Street. 1. As additional consideration for granting SPEC the right to purchase the Street Light Poles as outlined above, SPEC hereby grants to LP&L the use of SPEC's electric utility poles and easement from Milwaukee Avenue to Upland Avenue on 82nd Street ("SPEC Utility Poles"). 2. To the extent permitted under the terms of SPEC's easements or other use agreements, LP&L shall have the right to use SPEC's easement(s) for utility purposes and may attach to SPEC's Utility Poles per the terms and conditions contained in this section H. LP&L agrees, represents and warrants that its use of the SPEC Utility Poles shall not interfere with the current use of the SPEC Utility Poles by SPEC or interfere with the working use of facilities thereon or which may from time to time be placed thereon by SPEC. 4. LP&L shall, at its own expense, be responsible for attaching, installing, repairing and maintaining its electric distribution equipment and wires on the SPEC Utility Poles and shall attach, install, repair and maintain its electric distribution equipment in the safest condition and in good repair and in a manner suitable to SPEC. 5. LP&L shall at its own expense, upon notice from SPEC, promptly relocate, replace or remove its facilities placed on the SPEC Utility Poles and transfer them to substituted poles, or perform any other work in connection with said facilities that may be required by SPEC; provided, however, that in cases of emergency SPEC may relocate, replace, install, transfer, remove or perform any other work in connection with the SPEC Utility Poles or LP&L's facilities placed on said poles as the emergency situation may require and as determined solely by SPEC. In the event, in an emergency situation as determined solely by SPEC, SPEC is required to relocate, replace, install, transfer, remove or perform any other work in connection with said poles, SPEC may demand reimbursement from LP&L for any expense incurred by SPEC in removing, relocating, replacing, installing, and/or transferring LP&L's facilities in such emergency situation. 6. LP&L's cables, wires and appliances on SPEC's Utility Poles shall be erected and maintained in accordance with the requirements and specifications of SPEC. 7. In the event that the SPEC Utility Poles are inadequate to support the additional facilities of LP&L, LP&L may request such poles be replaced. The City will replace such inadequate poles with suitable poles and LP&L will, on demand, reimburse SPEC of the entire portion of the cost and expense thereof, including the increased cost of larger poles, sacrificed life value of poles removed, cost of removal less any salvage recovery, and the expense of transferring SPEC's facilities from the old to the new poles. Where LP&L's desired attachments can be accommodated on the SPEC Utility Poles by rearranging SPEC's facilities thereon, LP&L will compensate SPEC for the full expense incurred in completing such rearrangement. Any strengthening of the SPEC Utility Poles (guying) required to accommodate the attachments of LP&L shall be provided by and at the expense of LP&L. 8. LP&L shall exercise precautions to avoid damage to the SPEC Utility Poles and hereby assumes all responsibility for any and all loss or damage solely caused by LP&L. LP&L shall immediately report to SPEC the occurrence of any damage done by LP&L, and hereby agrees to reimburse SPEC for the expense incurred in making any necessary repairs. III.Warranties, Indemnity and Insurance. A. Warranty Disclaimer. The City and/or LP&L disclaims any and all warranties, whether written, oral, expressed, implied or statutory (including without limitation any warranty of merchantability fitness for a particular purpose) with regard to the Street Light Poles, other than its warranty that it owns the Street Light Poles. SPEC agrees to take possession of the Street Light Poles pursuant to this Agreement on an AS IS, WITH ALL FAULTS AND/OR DEFECTS BASIS WHETHER SUCH DEFECTS OR FAULTS ARE PATENT OR LATENT. B. Indemnity. 1. SPEC shall indemnify, release, and save harmless the City of Lubbock, LP&L and its officers, agents, and employees from all suits, actions, losses, damages, claims, Environmental Claims (as defined below) or liability of any character, type or description, including, without limiting the generality of the foregoing, all expenses of litigation, court costs, and attorneys' fees for injury or death to any person, or injury to any property, received or sustained by any person or persons or property, arising out of, or occasioned by the ownership or operation of the Street Light Poles after the date the Street Light Poles are transferred to SPEC, other than to the extent such claims are related to the street lights or other facilities of the City or LP&L located on the Street Light Poles. 2. `Environmental Claim" shall mean any claim, demand, action, suit or proceeding for the injury, disease or death of any person (including, without limitation, SPEC, or SPEC's successors, assigns, employees, agents and/or representatives) property damage, damage to the environment, or damage to natural resources made, arising or alleged to arise under, or relating to, any federal, state or local environmental law, regulation or rule. Environmental Claim includes any damages, settlement amounts, environmental cleanup liability, fines and penalties assessed or costs of complying with any orders or decrees of courts, administrative tribunals or other governmental entities associated with resolving such claims, demands, actions, suits or proceedings and any costs, expenses and fees, including, without limitation, reasonable attorney's fees incurred in the investigation, defense and resolution of such claims, demands, actions, suits and proceedings. 3. This indemnity shall survive the termination of this Agreement and nothing contained herein shall limit or extinguish the express terms of such indemnity. IV. Miscellaneous. 1. Successors/Assigns. This Agreement shall inure to the benefit of, and be binding upon, SPEC, its legal representatives, successors or assigns, and the City, it's legal representatives, successors or assigns. However, no assignment or transfer by either party shall be made without the prior written consent of the other party, which will not be unreasonably withheld. 2. Termination. If either SPEC or the City fails to comply with any of the provisions of the Agreement or defaults in any of its obligations or covenants under this Agreement, and shall fail within thirty (30) days after written notice from the other party to correct such default or noncompliance, or to comply with any covenant herein made, the non - breaching party may, at its option, forthwith terminate this Agreement. However, failure to terminate this Agreement shall not be construed to act as an estoppel or waiver of any cause of action for damages for breach of contract or any other action in law or equity available to the City or SPEC, as applicable. 3. Authority. All signatories to this Agreement hereby warrant that they have the authority to execute this Agreement and bind their respective parties. 4. Entire Agreement. This Agreement states the entire agreement of the parties with respect to the matters discussed herein, and supersedes all prior or contemporaneous oral or written understandings, agreements, statements or promises as they pertain to the subject matter described herein. 5. Amendments. This Agreement may not be amended or modified in any respect except by a written instrument duly executed by all of the parties to this Agreement. 6. Notice. Any notice required to be given to any party under this Agreement shall be in writing and will be considered duly delivered when mailed by registered mail, return receipt requested, or sent by facsimile or electronic transmission with receipt acknowledged, to the address or phone number listed below or to any other address or number previously furnished in writing for such purpose to all the parties hereto: City of Lubbock c/o Lubbock Power & Light P.O. Box 2000 Lubbock, Texas 79457 1301 Broadway Lubbock, Texas 79401 Telephone: (806) 775-2500 Facsimile: (806) 775-3112 South Plains Electric Cooperative, Inc. P.O. Box 1830 Lubbock, Texas 79408 Telephone: (806) 775-7719 Facsimile: (806) 775-7851 7. Assignment. The Agreement may not be assigned to any third party without the prior written consent of each party hereto, which consent shall not be unreasonably withheld. Refusal by a party to consent to any assignment based on the dissenting party's sole evaluation of the impact on the dissenting party of the third party's contractual and/or other arrangements, stability and condition, financial status, operating ability and record, service reliability, overall stability, and historical performance shall not be considered unreasonable for purposes of this Agreement. 8. Drafting. This Agreement has been and shall be construed to have been drafted by all the parties to it so that the rule of construing ambiguities against the drafter shall have no force or effect. 9. Severability. If any portion of this Agreement is held unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be affected and shall remain fully in force and enforceable. 10. Consultants/Attorneys. Each of the City and SPEC has consulted with whatever consultants, attorneys, legal representatives or other advisors it deems appropriate concerning the effect of the Agreement and each of SPEC and the City assumes the risk arising from not seeking further or additional consultation with such advisors. 11. Multiple Originals. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. 12. JurisdictionNenue. This Agreement is to be construed under Texas law, and all obligations of the parties created by this Agreement are performable in Lubbock County, Texas. Venue for any action brought pursuant to this Agreement, or any activity contemplated hereby, shall lie exclusively in Lubbock County, Texas. 13. General Terms and Conditions of SPEC's Franchise. SPEC understands that this Agreement, to the extent not inconsistent therewith, is subject to SPEC's franchise agreement with the City of Lubbock. To the extent possible, this Agreement and the franchise agreement shall be construed as being consistent with one another. In the event that the terms and conditions contained in this Agreement conflict with the franchise agreement, the terms and conditions of the franchise agreement shall control. EXECUTED this the 28th day of July , 2009 ("Execution Date") CITY OF LUBBOCK SOUTH PLAINS ELECTRIC COOPERATIVE, INC. (�..r. By. Tom Martin, Mayor Printed Name: JAwe, C•-DA1'yce- Title: ZiCCc. {/, 6'rar,e4/ �i<- f4c ATTEST: ATTEST: Rebec a Gaza, City Secretary APPROVED AS TO CONTENT: r cEe -4P4 APPROVED AS TO FORM: bq��� 4k�112 Matthew L. Wa eneral Counsel — LP&L �_W'°'CHERYL WAMPLER •* *; Notary Public, State of Texas oFwb My Commission Expires 05-25-2010