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HomeMy WebLinkAboutRES 09-321 RESOLUTION NO. 09-321 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute a Reimbursement Agreement with Entergy Texas, Inc.,for the relocation/removal of overhead electrical lines within the limits of the Calder Street Project. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 13th day of October, 2009. 1 Mayor Becky Ames - �. o {4 LW ';F Aif AV ""d .o REIMBURSEMENT AGREEMENT BY AND BETWEEN ENTERGY TEXAS, INC. AND THE CITY OF BEAUMONT ENTERED THIS& DAY OF /11g1/&-1,P)/�� , 20 This Reimbursement Agreement by and between Entergy Texas, Inc. ("ETI") and the City of Beaumont ("City") is entered this 112 day of�l t>e�,��r , 20 o c . WHEREAS, ETI is an electric utility providing transmission and distribution service in Southeast Texas; WHEREAS, City is a municipality engaged in drainage improvements along Calder Avenue and has requested ETI relocate its electric facilities in order to accommodate Phase II of the City's project ("Calder Project"); WHEREAS, ETI has agreed to relocate its electric facilities, subject to City's agreement to make payment for such work as evidenced by the terms and conditions of this Reimbursement Agreement ("Agreement"); NOW, THEREFORE, for and in consideration of the mutual covenants set forth herein, ETI and City hereby agree as follows: 1. ETI agrees that it shall conduct the engineering work, design work, procurement of materials, construction and relocation of certain electrical facilities ("ETI Project") to accommodate the Phase II of the Calder Project as more fully described in the attached Exhibit "A", Project Executive Summary. 2. City shall reimburse ETI for all costs, including but not limited to, materials costs, labor costs, labor costs adders, costs associated with third party vendors and consultants, costs associated with the procurement of real property rights, costs associated with securing all necessary approvals, taxes, capital suspense charges, and overheads (said costs hereinafter "Reimbursable Costs"). As of the date of this Agreement, the Reimbursable Costs (hereinafter "Project Estimate") are estimated to be TWO MILLION FIVE HUNDRED SIXTEEN THOUSAND AND NO/100s DOLLARS ($2,516,000.00 DOLLARS). It is understood that many variables, known and unknown, may impact this Project Estimate significantly. However, irrespective of a change in the Project Estimate, City agrees that all costs actually expended by ETI associated with the Project shall be considered Reimbursable Costs. It is expressly understood that ETI may, from time to time, modify its Project Estimate, based upon its most current information regarding the Project. ETI shall notify City of the modified Project Estimate. 3. City shall be invoiced at the completion of each of the Jobs of Phase II of the Project, with each .lob being described in Exhibit "A". For invoicing and payment purposes, City and Company expressly acknowledge that each individual Job as described in Exhibit "A" shall be considered a separate and independent service pursuant to Section 2251.021 of the Texas Government Code. It is expressly understood and agreed by the parties that the various Jobs to be conducted under Phase 2 may be redesignated to fall within other Job numbers or may be subdivided further. Redesignation of the portions of the work in a specific Job number shall occur without the necessity of an amendment to this Agreement. Payments shall continue to be paid by City until such time as ETI is reimbursed in full for all Reimbursable Costs. The City shall have the right, at all reasonable times for up to two (2) years after completion of the Project, and upon prior reasonable notice to ETI, to audit Reimbursable Costs it has paid. Any audit shall be permitted to occur at the offices at which the records are maintained. The City shall be allowed to review ETI's internal costs, subject to certain restrictions as outlined below, and invoices received by ETI from third party vendors/providers ("Backup Information"). Any audit requested by City shall be limited to confirming the amounts billed by vendors/providers to ETI and expenses incurred by ETI related to Reimbursable Costs. City acknowledges that ETI may be bound by contractual terms of confidentiality which may require ETI to obtain express consent by the vendor/provider prior to releasing pricing information contained within the contracts. ETI will request the vendor's/provider's consent, but cannot guarantee the consent or conditions under which review may be granted. City understands and acknowledges that it may be required to execute a confidentiality agreement in a form acceptable to ETI and/or the vendor from whom additional information shall be sought. City understands and acknowledges that it will be responsible for all costs associated with the audit. 4. City shall remit payment via check to ETI to the following account: Entergy Texas, Inc. Post Office Box 8107 Baton Rouge, LA 70891-8107 Time for payment shall be governed by Section 2251.021 of the Texas Government Code. If City fails to make payments in accordance with the terms set forth herein, ETI, in its sole discretion, may immediately cease all activity on the Project. ETI shall resume activity on the 2 Project within 30 days of the date that full payment of all outstanding invoices is received, subject to the availability of ETI crews and equipment. 5. It is expressly understood that City shall be responsible for making timely payments of invoices irrespective of the completion of the Project or the Calder Project. 6. ETI reserves the right to terminate this Agreement for any of the following reasons: (1) the Public Utility Commission of Texas or any other administrative agency or judicial body takes any action that, in the opinion of ETI, modifies, alters or amends any of the terms and conditions of this Agreement or affects the intent of this Agreement that ETI fully recover the Reimbursable Costs, or results in an adverse affect to ETI, (2) there is an occurrence that adversely affects City's financing of the Calder Project, or (3) City fails to comply with any material terms of this Agreement. Termination of this Agreement shall be effective upon receipt by City of twenty-four (24) hours' advance written notification from ETI of ETI's desire to terminate the Agreement. In the event of termination, City shall remain responsible for all Reimbursable Costs incurred by ETI through the effective date of termination. In addition, City shall be responsible for any additional charges, including but not limited to, cancellation charges, demobilization charges, charges associated with the ordering and purchasing of materials incurred by ETI, irrespective of termination. To the fullest extent allowed by law, City releases ETI for any and all damages, losses, claims and causes of action, including but not limited to any City damages, including special, consequential and indirect damages, resulting from ETI's termination of this Agreement. 7. City shall have the right to cancel the Project at any time. Cancellation shall be effective upon receipt by ETI of twenty-four (24) hours' advance written notification from City of City's desire to cancel the Project. In the event of cancellation, City shall remain responsible for all Reimbursable Costs incurred by ETI through the effective date of cancellation. In addition, City shall be responsible for any additional charges incurred following the effective date of cancellation, including but not limited to, cancellation charges, demobilization charges, charges associated with the ordering and purchasing of materials incurred by ETI, irrespective of cancellation. 8. It is expressly understood that this Agreement confers no ownership rights or interest to City in the facilities to be constructed by ETI pursuant to this Agreement. 9. All notices, requests, consents and other communications hereunder shall be in writing and shall be dispatched by nationwide overnight courier service, such as (without 3 limitation) FedEx, or by United States Certified Mail, Return Receipt Requested, postage prepaid, addressed to the parties as follows: ETI: ENTERGY TEXAS, INC. CITY: CITY OF BEAUMONT P.O. Box 2951 (77704) P.O. Box 3827 (77704) 350 Pine Street (77701) 801 Main Street, Suite 300 Beaumont, Texas Beaumont, Texas 77701 Attn: Sam Bethea Attn: Kyle Hayes Telephone: (409) 981-3824 Telephone: (409) 880-3780 Facsimile: (409) 981-2317 Facsimile: (409) 880-3 1 12 Notices under this Agreement shall be deemed given upon the earlier of the date of delivery or the date upon which delivery is refused. Any changes in the names or addresses shall be through notice in conformity with the requirements of this provision. 10. Except as expressly allowed above, no waiver, addition, deletion, or modification of any provision contained in this Agreement shall be binding unless in writing and signed by authorized representatives of both parties. Once an Amendment is made, it shall be deemed incorporated as of its effective date, unless expressly stated to the contrary in the Amendment. 11. The failure of either party to insist upon or enforce, in any instance, strict performance by the other of any of the terms of this Agreement or to exercise any rights herein or therein conferred shall not be construed as a waiver or relinquishment to any extent of its rights to assert or rely upon any such terms or rights on any future occasion. 12. It is agreed that if any clause or provision of this Agreement is by the courts held to be illegal or void, the validity of the remaining portions and provisions shall not be affected, and the rights and obligations of the parties shall be enforced as if this Agreement did not contain such illegal or void clauses or provisions. 13. The provisions of this Agreement that by their nature continue shall survive any termination or cancellation of this Agreement, including all obligations or rights that exist as a result of an event or the failure of an event prior to or at the time of expiration or termination of this Agreement. 4 14. By its execution of this Agreement, City represents and warrants that it has secured all necessary approvals to enter this Agreement. ENTERED THE DATE FIRST ABOVE WRITTEN. �� CITY OF BEAUMIONT ENTERGY TEX INC. By: ` By. ` Printed Name: �Tt L Printed Name: Y, F oyV\-1, ULD Title: 46 1"4wu / Title: Pr es cke,4, (�— c n Witness: An" 4 Witness: Witness: Witness: Ly 5 EXHIBIT "A" —Project Executive Summary Calder Avenue Drainage Project Line Reconstruction - Phase 2 (MLK to IH-10) City of Beaumont, Texas The City of Beaumont has proposed a multi-stage drainage project to run from the Neches River west on Elizabeth Street to the intersection of Main at Calder, and then west on Calder and old Calder to the intersection of Phelan Boulevard west of Lucas ("Calder Project"). The Calder Project includes the installation of two 10 X 14 drainage boxes, side-by-side, the length of the Calder Project. In order to facilitate the construction, Entergy Texas, Inc. has been asked to remove all overhead lines during construction and relocate or replace them with underground lines once the Calder Project construction is completed in each section as defined below. This series of jobs will cover the second phase of the construction (from the intersection of Calder and MLK Boulevard to the intersection of Calder and IH-10). The Entergy Texas, Inc. project ("ET1 Project") will remove all overhead lines along Calder from MLK to IH-10, while making all reasonable efforts to maintain service to all existing customers. The ETI Project will also relocate the overhead lines to underground lines after the construction has been completed in each block. Due to the planned removal of the 4kV trunk feeder along Calder, the feeder will be relocated to Broadway and converted to 13.2kV. All conduits necessary to relocate or replace ETI's facilities, including primary and secondary conducts, shall be furnished and installed by the City of Beaumont at its sole cost and expense and shall meet all ETI specifications and requirements. The ETI Project associated with Phase 2 shall be conducted as follows: Phase 2, Job l —From 15t Street to 3`1 Street Phase 2, Job 2 —From 4"h Street to 7th Street Phase 2, Job 3 —From 8th Street to 10th Street Phase 2, Job 4—From 1Oh Street to the IH-10 eastbound service board Phase 2, Job 5 — Removal of the fiber optic cable and support from poles from 1st Street west to 10"' Street and south along the west side of 10th Street to the second pole north of Laurel Phase 2, Job 6 — Several 13kV feeder extension projects on Broadway from the area west of 3"" Street and from 5"' Street to 11"' Street Phase 2, .lob 7 — Several projects to install primary underground wire in existing contractor- installed conduits at the Calder Street URD crossings Phase 2, Job 8 - The 13.2kV feeder trunk along the south side of Calder from just west of 10th Street to the east side of Interstate 10 will be removed. This will be replaced with a new 13.2kV feeder trunk which will be constructed from 10h Street and Liberty to the new underground dips on the south side of the intersection of Calder and l I"' Street. The new feeder trunk will be installed along the north side of Liberty from 14"' Street east to 1 l`h Street and then to the underground dip poles on the side of Calder. It is expressly understood and agreed by the parties that the various Jobs to be conducted under Phase 2 may be redesignated to fall within other Job numbers or may be subdivided further. Redesignation of the portions of the work in a specific Job number shall occur without the necessity of an amendment to this Agreement. 6