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Res 014-2012 2/21/2012RESOLUTION NO. 14 -2012 Resolution Authorizing the City Manager to Execute A Discretionary Service Agreement With Oncor Electric Delivery Company LLC For The Relocation Of Its Facilities In Advance Of The Lawrence/ Callfield /Rhea Road Realignment Project CWF12- 446 -09 WHEREAS, the City of Wichita Falls has coordinated relocation plans with Oncor Electric Delivery Company LLC for the relocation of their utilities in advance of the Lawrence /Callfield /Rhea Road Realignment Project; WHEREAS, the City Council finds this is a procurement of items that are only available from one source and are necessary to preserve or protect the public health or safety of the City's residents, and are exempt from the competitive bidding process pursuant to TEXAS LOCAL GOVERNMENT CODE 252.022; and WHEREAS, an estimated cost for the relocation work is $111,556.36. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: The City Manager is authorized to execute a Discretionary Service Agreement for the City with Oncor Electric Delivery Company LLC for the amount of $111,556.36 for the relocation of their utilities along Lawrence Road in advance of the Lawrence /Callfield /Rhea Road Realignment Project. PASSED AND APPROVED this the 21St day of February, 2012. MAYOR ATTEST: City Clerk Tariff for Retail Delivery Service Oncor Electric Delivery LLC 6.3 Agreements and Forms Applicable: Entire Certified Service Area Page 1 of 3 Effective Date: January 1, 2002 010407 Revision: Original 6.3.4 Discretionary Service Agreement WR 3150783 CIAC Tracking 23236 This Discretionary Service Agreement ( "Agreement ") is made and entered into this _ day of 2072, by Oncor Electric Delivery Company LLC ( "Oncor Electric Delivery" or "Company "), a Delaware limited liability company, under the Delaware Limited Liability Company Act, and a distribution utility, and the City of Wichita Falls, Texas ( "Customer'), each hereinafter sometimes referred to individually as "Party' or both referred to collectively as the "Parties ". In consideration of the mutual covenants set forth herein, the Parties agree as follows: 1. Discretionary Services to be Provided — Company agrees to provide, and Customer agrees to pay for the following discretionary services in accordance with this Agreement: Per a request from the City of Wichita Falls, Texas, Oncor Electric Delivery LLC (OED) will relocato facilities from the east right of way of Lawrence road to the west right of way of Lawrence Road in conjunction with the proposed realignment of Lawrence Road at Carl Field Road. The City of Wichita Falls will pay the estimated difference in cost of their request and the estimated cost to relocate electric distribution facilities that would be In conflict with the planned realignment of Lawrence Road. This project will be worked on Oncor Electric Delivery WR# 3150783E. 2. Nature of Service and Company's Retail Delivery Service Tariff -- Any discretionary services covered by this Agreement will be provided by Company, and accepted by Customer, in accordance with applicable Public Utility Commission of Texas ( "PUCT ") Substantive Rules and Company's Tariff for Retail Delivery Service (including the Service Regulations contained therein), as it may from time to time be fixed and approved by the PUCT ( "Company's Retail Delivery Tariff'). During the term of this Agreement, Company is entitled to discontinue service, interrupt service, or refuse service initiation requests under this Agreement in accordance with applicable PUCT Substantive Rules and Company's Retail Delivery Tariff. Company's Retail Delivery Tariff is part of this Agreement to the same extent as if fully set out herein. Unless otherwise expressly stated In this Agreement, the tens used herein have the meanings ascribed thereto in Company's Retail Delivery Tariff, 3. Discretionary Service Charges — Charges for any discretionary services covered by this Agreement are determined in accordance with Company's Retail Delivery Tariff. Company and Customer agree to comply with PUCT or court orders concerning discretionary service charges. The estimated cost provided for this agreement is good for 90 days. If this agreement has not been executed by both parties by May 8, 2012, OED reserves the right to void this Agreement and submit an updated Discretionary Service Agreement with recalculated cost for the Discretionary Services to be provided. 4.Term and Termination — This Agreement becomes effective upon acceptance by both the Company and the Customer and continues in effect until all associated work by Oncor Electric Delivery LLC is complete and reimbursements are secured, with no allowances for betterment. Termination of this Agreement does not relieve Company or Customer of any obligation accrued or accruing prior to termination. 5. No Other Obligations -- This Agreement does riot obligate Company to provide, or entitle Customer to receive, any service not expressly provided for herein. Customer is responsible for making the arrangements necessary for it to receive any further services that it may desire from Company or any third party. 6.Governing Law and Regulatory Authority — This Agreement was executed in the State of Texas and must in all respects be governed by, interpreted, construed, and enforced in accordance with the laws thereof. This Agreement is subject to all valid, applicable federal, state, and local laws, ordinances, and rules and regulations of duly constituted regulatory authorities having jurisdiction. 7. Amendment —This Agreement may be amended only upon mutual agreement of the Parties, which amendment will not be effective until reduced to writing and executed by the Patties. But changes to applicable PUCT Substantive Rules and Company's Retail Delivery Tariff are applicable to this Agreement upon their effective date and do not require an amendment of this Agreement. 8. Entirety of Agreement and Prior Agreements Superseded — This Agreement, including all attached Exhibits, which are expressly made a part hereof for all purposes, constitutes the entire agreement and understanding between the Parties with regard to the service(s) expressly provided for in this Agreement. The Parties are not bound by or liable for any statement, representation, promise, inducement, understanding, cr undertaking of any kind or nature (whether written or oral) with regard to the subject matter hereof not set forth or provided for herein. It is expressly acknowledged that the Parties may have other agreements covering other services riot expressly provided for herein, which agreements are unaffected by this Agreement. Tariff for Retail Delivery Service Oncor Electric Delivery LLC 6.3 Agreements and Forms Applicable: Entire Certified Service Area Page 2 of 3 Effective Date: January 1, 2002 010407 Revision Original 9. Notices -- Notices given under this Agreement are deemed to have been duly delivered if hand delivered or sent by United States certified mail, return receipt requested, postage prepaid, to: (a) If to Company: Oncor Electric Delivery LLC Larry K. Baldwin 115 W. 70 Street, Suite 625 Fort Worth, TX 76102 Office: 817- 215 -6184 (b) If to Customer: City of Wichita Falls Mr. Russell Schreiber P.E., Director of Public Works PO Box 1431 Wichita Falls, Texas 76037 The above - listed names, titles, and addresses of either Party may be changed by written notification to the other 10. Invoicing and Payment — Invoices for any discretionary services covered by this Agreement will be mailed by Company to the following address (or such other address directed in writing by Customer), unless Customer is capable of receiving electronic invoicing from Company, in which case Company is entitled to transmit electronic invoices to Customer. City of Wichita Falls Mr. Russell Schreiber P.E., Director of Public Works PO Box 1431 Wichita Falls, Texas 76037 If Company transmits electronic invoices to Customer, Customer must make payment to Company by electronic funds transfer. Electronic invoicing and payment by electronic funds transfer will be conducted in accordance with Company's standard procedures. Company must receive payment by the due date specified on the invoice. If payment is not received by the Company by the due date shown on the invoice, a late fee will be calculated and added to the unpaid balance until the entire invoice is paid. The late fee will be 5% of the unpaid balance per invoice period. 11. No Waiver — The failure of a Party to this Agreement to insist, on any occasion, upon strict performance of any provision of this Agreement will not be considered to waive the obligations, rights, or duties imposed upon the Parties. 12. Taxes — All present or future federal, state, municipal, or other lawful taxes applicable by reason of any service performed by Company, or any compensation paid to Company, hereunder must be paid by Customer. 13. Headings — The descriptive headings of the various articles and sections of this Agreement have been inserted for convenience of reference only and are to be afforded no significance in the interpretation or construction of this Agreement. 14. Multiple Counterparts — This Agreement may be executed in two or more counterparts, each of which is deemed an original but all constitute one and the same instrument. 15. Other Terms and Conditions — (i) Customer agrees that payment shall be made within 60 days of the date the project Is completed or the date the invoice Is received, whichever is later. The amount to be invoiced is S 111.556.36. (ii) Customer has disclosed to Company all underground facilities owned by Customer or any other party that is not a public utility or governmental entity, that are located within real property owned by Customer. In the event that Customer has failed to do so, or in the event of the existence of such facilities of which Customer has no knowledge, Company, its agents and contractors, shall have no liability, of any nature whatsoever, to Customer, or Customer's agents or assignees, for any actual or consequential damages resulting from damage to such undisclosed or unknown facilities. Tariff for Retail Delivery Service Oncor Electric Delivery LLC 6.3 Agreements and Forms Applicable: Entire Certified Service Area Page 3 of 3 Effective Date: January 1, 2002 010407 Revision: Original (iii) The Discretionary Service Charges provided in this agreement are for Oncor Electric Delivery facilities pnjY and do not include any charges related to the relocation of any facilities owned by a franchised utility, governmental entity, or licensed service provider (Joint User), The customer must contact all Joint Users and make arrangements to have their facilities transferred or relocated. Oncor Electric Delivery can not complete the relocation /removal of facilities outline in this agreement until Joint Users(s) remove their facilities attached to Oncor Electric Delivery poles. (iv) Construction of this project will not begin until this signed document is returned to Oncor Electric Delivery Company LLC at the above referenced address. IN WITNESS WHEREOF, the Parties have caused this Agreement to be sign by their respective duly authorized representatives. ONCOR ELECTRIC DELIVERY COMPANY LLC By: Name: Titte: Date: CITY OF WICHITA FALLS, TEXAS By: Name: Title: Date: