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HomeMy WebLinkAbout5649RESOLUTION NO. 5649 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND CENTEL CORPORATION - SOUTHERN COLORADO POWER RELATING TO STREET LIGHTING AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME. BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: SECTION 1 The Street Lighting Agreement dated July 22, 1985 between 'the City or Pueblo and Centel Corporation - Southern Colorado Power relating to street lighting, a copy of which is attached hereto and incorporated herein, having been approved by the City Attorney is hereby approved. SECTION 2 The President of the City Council is hereby authorized and directed to execute the Street Lighting Agreement for and on behalf of' the City and the City Clerk is directed to attest same and affix the seal of the City thereto. INTRODUCED July 22 — ,1 , -:085 BY: Mike Occhiato Councilman APPROVED: Tr'6sj#e of t e Qdn ATTEST: City rk STREET LIGHTING AGREEMENT This Agreement is made and entered into as of this 22 naday cf Ju by and between the CITY OF PUEBLO (the "City ") and CENTEL CORPORATION - SOUTHERN COLORADO POWER (the "Company"). WHEREAS, the City is negotiating with the Company a franchise for the right to furnish and sell electricity to the City and to all persons, businesses and industry within the City under a Franchise Agreement, Ordinance No. 5222 ("Franchise Agree- ment"), to be approved by a majority vote of the qualified taxpaying electors voting thereon; and WHEREAS, the City desires to reduce its street lighting bills without reduction in the illumination delivered to its streets and the Company agrees to assist the City in pursuing this goal; and WHEREAS, the City and the Company agree that certain rights, obligations, terms and conditions for the provision of street lighting service should be set forth in a separate agreement; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows: SECTION 1 COMPANY TO PROVIDE STREET LIGHTING The Company shall furnish and sell to the City, as its boundaries may change from time to time during the term of this Agreement, street lighting service under rates, terms and conditions set forth in the Company's tariffs approved by the Colorado Public Utilities Commission ("PUC"). The Company shall provide illumination of all streets, alleys, parks, public ways and public property designated by the City. The Company shall furnish and install, maintain and operate in good working order such street lighting equipment as requested by the City. SECTION 2. TERM OF AGREEMENT This Agreement shall take effect on the same day as the Franchise Agreement takes effect and shall be for twenty -five (25) years. SECTION 3 . MAINTENANCE The Company shall provide continuous, reliable illumination at the illumination level designated by the City. In the operation and main- tenance of its street lighting system, the Company will comply with all applicable safety standards and maintenance criteria as set by federal, state and local rules, regulations and statutes, as the same may be amended from time to time. To assure the reliability of the service, the Company shall replace each individual light unit lamp no less fre- quently than every five (5) years. In addition, each individual luminaire shall be fully cleaned and washed by the Company every thirty (30) months. The Company agrees to repair all non - functioning street light facilities no later than the next calendar day after receiving notification of non - functioning facilities. For the purposes of this Section 3, "non- functioning facilities" shall include facilities providing inadequate lighting (i.e., reduced illumination). Lighting shall be deemed inadequate if it measures at street level less than 75% of full candle power of design standard at time of installation. If there are a significant number of non - functioning facilities arising from any of the following conditions: disaster, labor disturbances, strikes, lockouts, other industrial disturbances, acts of God, acts of a public enemy, war, blockade, riot, insurrection, lightning, fire, storm, flood, explosion, or on account of any other condition, whether enumerated or not, that is beyond the reasonable control of the Company, then the Company shall have such period of time in excess of the next calendar day to repair the non - functioning facilities as is reasonable for emergency repairs under the circumstances. The Company further agrees it will repair and restore any City property or private property damaged or des- troyed by the Company, its agents and employees in conducting the operations herein described, to substantially the condition such property was in prior to the damage or -2- destruction, or will make full and complete restitution to the owner thereof. In the event the Company, in the course of performing this Agreement, is required, or finds it necessary, to remove any fixture or property, or alter the same, the Company shall obtain prior permission from the City and the Company shall restore the area affected to a condition compatible to the surrounding area, at no cost to the City. SECTION 4. OUTAGE CREDIT. Recognizing that even the highest reasonable maintenance service level cannot guarantee that all street lights will be burning at all times, the Company agrees that the City's bill will be reduced by an outage credit to reflect the reduced illumination delivered. For the purposes of this Section 4, the light shall not be considered to be "non- functioning" unless it is out. Commencing during January 1, 1986, at the City's request, the outage credit will be determined by a random sampling of street lights every six (6) months (September and March), in a sample area mutually agreeable to the City and the Company. The sample shall include at least 350 lights, but no more than 450 lights. Representatives of the Company and City shall check each individual light within the sample area and count the number of non- function- ing lights. An outage credit for the next six (6) months shall be applied to the City's street lighting bill in accordance with the following schedule: % Non - functioning Lights in the Sample 0 - 1.999 % 2% - 2.999% 396 - 4.999% 5% and over Outage Credit No Credit 1% of total monthly street lighting base bill 2% of total monthly street lighting base bill 4% of total monthly street lighting base bill SECTION 5. TESTING. The City and Company recognize that technological advances in the street lighting could result in a higher illumination output and lower -3- cost. Therefore, the Company agrees to conduct specific tests not more frequently than at five -year intervals, as requested and approved by the City, to evaluate methods to improve the street lighting system. At the City's expense and request, the company shall continue to provide a street lighting system that reflects the state of the art and tech- nological advances. Further, at the City's request, the Company shall provide the City with the applicable rates to finance and time required to install and to achieve the then - current state of the art street lighting system. Copies of the tests by the Company shall be supplied to the City. These tests may include, but not be limited to, new pole designs, new luminaires, new fixtures, optical control systems, and light sensitive control devices. The scope of the tests, the allocation of test costs and proposed actions taken will be mutually agreed upon prior to any requested testing undertaken. SECTION 6 . REPLACEMENT /CONVERSION The Company shall replace or convert by October 1, 1987, using the Company's standard equipment, at no cost to the City for the first replacement or conversion, all mercury -vapor street lights of all wat- tages owned by the Company within the City to high - pressure sodium lights, as herein stated. The type of optical delivery system used in the high - pressure sodium street lights may be the subject of testing and evaluation as provided in Section 5 of this Agreement. The City shall not be required to reimburse the Company for any remaining useful life of the replaced facilities or for any removal costs. SECTION 7 NEW AND REPLACEMENT INSTALLATIONS Prior to installing new and replacement street lighting facilities, at either existing or new locations, the Company shall notify the City of its proposed installation. The City shall have the right to designate, within the range of the Company's standard equipment, which facilities shall be installed at each location by the Company. In addition, the City reserves the right, at its option, at each location to elect to: (1) provide and install its own facilities and the secondary wiring, or (2) contribute to the capital cost of Company -owned facili- MC ties. Credit for City Contributions in aid of construction shall be given in accordance with the Company's tariffs. SECTION 8. LABOR CONTRIBUTION. The City reserves the right on all street lighting projects to complete portions of any project using its own work force or contractors so long as the City and its contractor agree to work subject to the Company's reasonable specifications and inspection, and so long as the use of City employees or a City contractor does not violate the working agreement between the Company and IBEW Local No. 667 or its successor union. No City labor nor other City costs in said projects will be reflected in the rate base. All work shall be performed according to Company specifications and shall be subject to Company inspection and approval prior to energization of the street lights. The Company shall be paid a reasonable fee for engineering and inspection services performed for the City. SECTION 9 COMPANY SUBCONTRACTORS In the event the Company elects to subcontract the installation of any street lighting facilities, the City shall be given five (5) days' prior notice of the subcontract arrangement. SECTION 10 . DETAIL OF CHARGES Upon request of the City, the Company shall provide within a reasonable time not to exceed fifteen (15) days, except in special circumstances, such a detailed account of the street lightng equipment and facilities and /or billing charges as to enable the City to verify the charges made by the Company in billing the City. This accounting shall include at least the following details: 1. The location of all street lighting equipment and facilities, listed by ownership, including Company, City, state and privately -owned facilities and equipment. 2. The types of fixtures, lamps, including wattage, at each location. SECTION 11. CITY -OWNED STREET LIGHTING SYSTEM. Nothing in this Agreement shall prohibit the City from constructing and owning all or part of its street lighting equipment and other facilities, nor limit how the City shall accomplish the -5- same. In the event the City elects to purchase, construct, install, or operate its street lighting equipment or facilities, the Company agrees, at the City's request, to provide electricity to energize these facilities and if requested by the City, the Company will maintain these facilities in accordance with rates, terms and conditions submitted to and approved by the Colorado Public Utilities Commission. SECTION 12 PURCHASE AND CONDEMNATION As set forth in the fran- chise, the right of the City to purchase or condemn the Company's street lighting system, as provided by the Colorado Constitution and Statutes, is expressly reserved and shall be governed by such Constitution and Statutes and the provisions of the Franchise Agree- ment. SECTION 13 COMPANY EQUIPMENT INVENTORY To the extent the Company finds that the use of different equipment is compatible and economically feasible, the Company agrees to increase its inventory of standard equipment to include energy- efficient equipment and facilities and to take advantage of technological improvements in street lighting design and manufacture. Subject to the above feasibility requirement, the Company agrees to respond to all reasonable requests of the City to stock equipment which will reduce costs for the City because of the increased efficiency of a particular brand or model and /or because of the cheaper cost of such brand or model. SECTION 14 DISCOUNT FOR OFF -PEAK USAGE In its presentation of cost-of- service studies to the Public Utilities Commission for ratemaking purposes, the Company shall utilize, if allowed by the PUC, allocation methodologies that will equitably distribute cost to the street lighting class by taking into account such attri- butes as non - coincidence with the Company's peaks. SECTION 15. RELATION TO FRANCHISE AGREEMENT This Street Lighting Agreement, and the rates, services and obligations herein described, are a part of the -6- electric energy services provided by the Company to the residents of the City which are governed by the Franchise Agreement. The street lighting service by the Company is to be rendered pursuant to the Franchise Agreement. The Company will indemnify the City from and against any and all third -party claims arising hereunder. Further, in the event that the Company breaches the Franchise Agreement and the City declares that the Company has forfeited its rights thereunder, the Company shall be deemed likewise to have concurrently forfeited its rights under this Street Lighting Agreement. SECTION 16. BREACH OF CONTRACT. In the event that the Company fails any of the obligations under this Street Lighting Agreement, the City shall have a breach of contract claim against the Company in addition to any other remedy provided by law. SECTION 17 . AMENDMENTS At any time during the term of this Agreement either party may propose amendments by giving thirty (30) days' written notice to the other. Both parties shall negotiate, through their designated representative, within a reasonable time and in good faith, mutually- satisfactory amendments. SECTION 18 . ASSIGNMENT The Company shall not sell or transfer its street lighting plant or system to or merge with any other entity, nor transfer any rights under this Agreement to another, unless the City shall approve in writing such sale, transfer or merger. The sale, transfer or merger must also conform to the assignment provisions in the Franchise Agreement. Approval of the sale, transfer or merger shall not be unrea- sonably withheld. SECTION 19 . SEVERABILITY Should any one or more provisions of this Street Lighting Agreement be determined to be illegal or unenforceable, all other provi- sions nevertheless shall remain effective; provided, however, the parties shall forthwith enter into good faith negotiations and proceed with due diligence to draft contractual terms that will achieve the original intent of the parties hereunder. -7- SECTION 20 SUCCESORS AND ASSIGNS The rights, privileg- es and obligations granted and contained in this Agreement shall inure to the benefit of and be binding upon Centel Corporation - Southern Colorado Power, its successors and assigns, and whenever in this Agreement the word "Company" is used, it shall be deemed to refer and apply to Centel Corporation - Southern Colorado Power, its successors and assigns. SECTION 21 . INCORPORATION This Agreement, together with the Franchise Agreement, constitute the entire agreement of the parties. There have been no representations made other than those contained in this Agreement and in the Franchise Agreement. The covenants contained in this Agreement and the Franchise Agreement are in consideration for one another. Executed at Pueblo, Colorado, the day and year first above written. Pueblo, a nicipal Corporation [S E A L] J' F F` Attest: By L/ C y Clerk ent e i y Council Approved as to form: City Attorney/ c - Centel Corporation - Southern Colorado Power [S E A L] F Attest: B / Y ec a y Vice President