Ordinance No. 9,0932001125 -3
ORDINANCE NO. 9093
® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO
EXECUTE AN ELECTRIC SALES AGREEMENT WITH THE TEXAS
GENERAL LAND OFFICE FOR THE PURCHASE OF ELECTRICITY
THROUGH THE :STATE POWER PROGRAM; AND PROVIDING FOR THE
EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE'CITY OF BAYTOWN,
TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes
and directs the City Manager to execute an Electric Sales Agreement with the Texas General
Land Office for the purchase of electricity through the state power program. A copy of said
Agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and
purposes.
Section 2: This ordinance shall take effect immediately from and after its passage by
the City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the
City of Baytown this the 25th day of January, 2001.
PETE C. ALFARO, Mayor
ATTEST:
ulw "//(
GA W. SMITH, City Clerk
APPROVED AS TO FORM:
D�'4' r
ACIO RAMIREZ, SA,,kity Attorney
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TEXAS GENERAL LAND OFFICE
ELECTRIC SALES AGREEMENT
CUSTOMER: City of Baytown SELLER: Texas General Land Office
Attn: Mr.Monte Mercer Reliant Energy Retail,Inc.,Agent
P. O.Box 424 Teresa Kelly
Baytown,TX 77522-0424 Program Director
P.O. Box 4567
Houston,TX 77210-4567
Tel: 281-420-5397 Tel: 713-207-3515
Fax: 281-420-6586 Fax: 713-207-9161
E-mail:
FACILITIES: Set out on Appendix A,attached hereto,and as modified from time to time.
POWER SALES: Customer agrees to purchase and Seller agrees to sell all of Customer's electricity
requirements for the Facilities during the Term stated below.
TERM: 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 31, 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.
PRICE: 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.
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04044174-0-071
Reliant
\ Energy.
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 OFFICCE: CUSTOMER: CITY BA TO
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By: raWas By:
David Dewhurst
Title: Commissioner, General Land Office Printed Name: Monte Mercer
Title: City Manager
Date: a'oa0'o 001 Date: January 26, 2001
AGENT:
B .
Teresa A. Kelly
Title: Director, GLO Program
Date:3— 5 -0
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APPENDIX A
City of Baytown
LIST OF ACCOUNTS
Account Number Service Address Additional Info
238055689001 3209 W Cedar Byu Lynchburg Rd
238032491201 303 1/2 Tri City Beach Rd
072511171012 201 E Wye Dr
238078846702 705 N Robert Lanier
082512207352 4723 Garth Rd
062102599501 2320 Market St Fire Station
238065145101 1724 Market St
238056116901 2103 1/2 Market St
052102271151 1802 W Main #1
238022978401 4111 Allenbrook Dr
238066360201 1205 Arizona St
238035488401 3911 Emmet Hutto Blvd
152146258601 2511 1/2 Cedar Bayou Rd
238007414301 1520 Louisiana St
238041220201 3703 McLean Rd #1
238063982101 2675 1/2 S Highway 146
238093044701 1802 Tri City Beach Rd B
072511801071 4102 Allenbrook Dr
112516203958 3500 Coachman Dr
072511554051 5200 East Rd #1
112516199081 3100 1/2 Baker Rd #1
082512207158 4801 Garth Rd Lift Station
238032806201 3023 1/2 Massey Tompkins Rd
082114359508 908 Spur 201
052508344001 3624 Raccoon Dr Sewer Plant
072511930008 3701 N Main St
052508625751 4434 Crosby Cedar Bayou Rd City Park
152146259701 2511 Cedar Bayou Rd Water Well
202544163352 1712 Steinman St Disposal Plant
062102819501 3312 Missouri St Sewer Lift
192146945051 2205 1/2 Woodlawn St
072511696202 403 W Cedar Byu Lynchburg Rd Sewer Lift
052508676752 4219 Raccoon Dr
102124920001 3111 Columbia St
082113795001 1300 W Texas Ave
238038625701 1306 Garth Rd
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062102485702 2505 Market St Water Plant
238061271901 900 S Main St Pelly Park
238049788101 5903 1/2 Highway 146
238047513401 9510 Bayou Woods Dr A
238049373901 5205 1/2 Highway 146
238088242901 3911 1/2 Highway 10 Sewer Lift
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GENERAL TERMS AND CONDITIONS
FOR
TEXAS GENERAL LAND OFFICE SALES AGREEMENT
Definitions:
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 this Agreement.
2. 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.
3. 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.).
4. 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.
5. The term"kilowatt hour" (kWh) shall mean one thousand watts of electric energy or
electricity used in one hour.
6. The term"Party" shall mean either Seller or Customer.
7. The term"Parties" shall mean Seller and Customer.
8. The term"PUC" shall mean the Public Utility Commission of Texas.
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9. 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.
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.
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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 EFT 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 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.
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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 ($/kWh)
set forth in this Agreement multiplied by the amount of undelivered electricity (kWh) and (b)the
purchase price ($/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.
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 if: (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 and
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Customer, 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.
Notices: 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 TM identification and password.
Seller shall have the right 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 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 borne 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).
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Prior State Employment: Customer certifies no employee of Customer that has been an employee
of GLO within the past year has been or 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.
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