Resolution No. 72451
RESOLUTION NO, 7245
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3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN
4 ELECTRIC WHOLESALE GENERATION AND TRANSMISSION
SERVICE AGREEMENT BY AND BETWEEN THE CITY OF VERNON
5 AND THE CITY OF AZUSA
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7 WHEREAS, both the City of Vernon ("Vernon") and the City of
8 Azusa ("Azusa") are engaged in the generation, transmission, and/or
9 distribution of electric power and energy in the southwestern United
10 States; and
11 WHEREAS, both Vernon and Azusa believe that the purchase and
12 interchange of power and transmission service between their respective
13 systems will provide substantial benefits to themselves and their
14 customers, including more efficient use of resources; and
15 WHEREAS, Vernon and Azusa desire to enter into an Electric
16 Wholesale Generation and Transmission Service Agreement which will
17 enable the parties to enter into specific agreements (Service
18 Schedules A through D) from time -to -time to provide transmission
19 service or schedule and deliver capacity and/or energy not to exceed
20 30 mW per transaction, nor exceed a term of one (1) year.
21 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
22 CITY OF VERNON AS FOLLOWS:
23 SECTION 1: The City Council of the City of Vernon does
24 hereby find and determine that the recitals contained hereinabove are
25 true and correct.
26 SECTION 2: The City Council of the City of Vernon hereby
27 approves the Electric Wholesale Generation and Transmission Service
28 Agreement, a copy of which has been presented to the City Council
1 concurrently with this resolution, and the City Council hereby orders
2 said Agreement to be received and filed by the City Clerk.
3 SECTION 3: The City Council of the City of Vernon hereby
4 authorizes the Mayor and the City Clerk to execute said Agreement for,
5 and on behalf of, the City of Vernon.
6 SECTION 4: The City Council hereby delegates the Director of
7 Utilities, as the authorized representative pursuant to Section 7.0 of
8 the Agreement, with the authority to implement this enabling agreement
9 for generation and/or transmission schedules with a time limit not to
10 exceed one (1) year nor exceed a capacity of 30 mW per schedule.
11 SECTION 5: The City Clerk of the City of Vernon shall
12 certify to the passage of this resolution and thereupon and thereafter
13 the same shall be in full force and effect.
14 APPROVED AND ADOPTED this 8th day of December, 1998.
15
LEONIS C. LBURG," Mayor
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ATTEST:
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18 BRUCE V. MALKENHORST, City Clerk
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MOM
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1 STATE OF CALIFORNIA )
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2 COUNTY OF LOS ANGELES )
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I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
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hereby certify that the foregoing Resolution, being Resolution No.
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7245, was duly adopted by the City Council of the City of Vernon at an
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adjourned regular meeting of the City Council duly held on Tuesday,
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December 8, 1998, and thereafter was duly signed by the Mayor of the
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City of Vernon.
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BRUCE V. MALKENHORST, City Clerk
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12 (SEAL)
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-3-
SUPPORTING
Do* CUMENTS
ELECTRIC WHOLESALE GENERATION
TRANSMISSION SERVICE AGREEMENT BETWEEN
THE CITY OF VERNON
AND
THE CITY OF AZUSA
TABLE OF CONTENTS
Page
1.0 PARTIES...................................................1
2.0 RECITALS..................................................1
3.0 TERM OF AGREEMENT ................ .......................2
4.0 AGREEMENT.................................................2
5.0 BILLING AND PAYMENT.......................................2
6.0 LIABILITY AND INDEMNITY...................................3
7.0 AUTHORIZED REPRESENTATIVE.................................4
8.0 NONPRECEDENT AND RESERVATION OF RIGHTS ....................5
9.0 PREVIOUS COMMUNICATIONS...................................5
10.0 NONSEVERABILITY...........................................5
11.0 NONWAIVER OF CONTRACTUAL RIGHTS ...........................5
12.0 UNCONTROLLABLE FORCE......................................5
13.0 NONDEDICATION OF FACILITIES...............................6
14.0 NOTICES...................................................6
15.0 RELATIONSHIP OF PARTIES...................................6
16.0 NO THIRD PARTY RIGHTS.....................................7
17.0 ASSIGNMENT................................................7
18.0 GOVERNING LAW AND REGULATIONS .............................7
19.0 CONSTRUCTION OF AGREEMENT.................................7
20.0 CAPTIONS AND HEADINGS.....................................7
21.0 SIGNATURE CLAUSE..........................................7
SERVICE SCHEDULES A THROUGH D
-i-
ELECTRIC WHOLESALE GENERATION
AND
TRANSMISSION SERVICE AGREEMENT
BETWEEN
THE CITY OF VERNON
AND
THE CITY OF AZUSA
1.0 PARTIES
The Parties to this service agreement ("Agreement") are the
City of Vernon, a municipal corporation of the State of
California (hereinafter referred to as "Vernon"), 4305 Santa Fe
Avenue, Vernon, California 90058 and the City of Azusa, a
municipal corporation of the State of California (hereinafter
referred to as "Azusa"), 729 North Azusa Avenue, Azusa,
California 91702. Each signatory is a Party and collectively are
the Parties.
2.0 RECITALS
This Agreement is made with reference to the following
facts, among others:
2.1 The Parties are engaged in the generation,
transmission, and/or distribution of electric power and energy in
the southwestern United States.
2.2 The Parties believe that the purchase and interchange
of power and transmission between their respective systems will
provide substantial benefits to the Parties and their customers,
including more efficient use of resources.
2.3 The Parties desire to establish a contractual
arrangement which would permit the Parties to enter into
contracts to respond to the new restructured electric market.
2.4 In order to achieve such flexibility in negotiating and
entering into contracts, the Parties desire to approve this
Agreement which will enable the authorized representative of each
Party to enter into agreements for economy energy service, unit
commitment service, firm system capacity and associated energy
services, and transmission service in accordance with the service
schedules attached as Schedules A, B, C and D.
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2.5 This Agreement shall be an enabling agreement and shall
not obligate a Party unless such Party has approved and executed
in writing a Service Schedule provided for in Schedules A, B, C
or D.
Now, Therefore, in consideration of the mutual convenants
contained herein, the Parties agree as follows:
3.0 TERM OF AGREEMENT
This Agreement shall become effective on December 11, 1998,
and shall terminate on December 31, 2004, unless terminated
earlier by either Party giving thirty (30) days advance written
notice to the other Party of its intent to terminate said
Agreement. Upon the effective date of termination, the Parties
shall have no further rights or obligations under this Agreement
except the right to collect amounts owed to it and to pay such
amounts owed to the other Party.
4.0 AGREEMENT
4.1 The Parties herein agree that the authorized
representative of each Party hereby authorized to enter into an
agreement for any of the Service Schedules provided for in
Schedules A, B, C and D for a term not to exceed one (1) year and
for a quantity not to exceed thirty (30) MW. The specific
services to be rendered herein, will vary during the term of this
Agreement, and the terms, conditions, arrangement, and rates
depend upon the conditions existing at the time the Service
Schedule is approved. Therefore, it is intended that the
specific services and term, conditions, arrangements, and rates
applicable to such services will be set forth in a Service
Schedule negotiated and executed by the Parties. The attached
Service Schedules A through D for Economy Energy Service, Unit
Commitment Service, Firm System Capacity and Associated Energy
and Transmission Service are made part of this Agreement and are
the only Service Schedules authorized herein.
5.0 BILLING AND PAYMENT
5.1 Billing and payment for the Service Schedules provided
for herein shall be based upon the following:
5.1.1 The accounting and billing period shall be one
(1) calendar month. A bill for service provided shall be
rendered monthly by the Parties on or before the 20th of the
month following the month in which such service is received.
Bills received shall be due by the fifteenth (15) calendar day
from the date of such receipt. Amounts not paid on or before the
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due date shall be payable with interest at the rate of one
percent (1%) per month from the due date to date of payment.
5.3 In case a bill or any portion thereof is in dispute,
the full amount shall be paid when due. If the disputed amount
is determined to be incorrect, such amount shall be refunded
promptly upon determination, with interest accrued at the rate of
one percent (1%) per month computed from the original due date to
the date the adjustment is made.
5.4 Notices and demands shall be addressed to the
respective Parties as set forth in Section 13.0.
6.0 LIABILITY AND INDEMNITY
6.1 Except for Willful Action, each Party shall indemnify
and save each other Party harmless from liability, loss, damage,
claim, costs, and expenses (including attorney fees) on account
of injury to persons (including death), or damage or destruction
of property, occasioned by the sole negligence, whether active or
passive, of the indemnifying Party's officers, directors,
employees, or contractors; provided, however, that:
6.1.1 Each Party shall be solely responsible for the
claims or any payments to any employee or agent for injuries
occurring in connection with their employment or arising out of
any Workers' Compensation law.
6.1.2 No Party shall be liable for any loss of
earnings, revenues, indirect or consequential damages, or injury
which may occur to the other as a result of outages in delivery
of energy or service hereunder by reason of any cause, including
negligence, but excluding Willful Action.
6.2 Each Party shall indemnify and save each other Party
harmless for any liability, loss, claim, cost (including attorney
fees) for any claims made by the indemnifying Party's electric
service customers as a result of any failure of a Party to
provide electric power or energy contemplated by this Agreement
for any reason or any cause, including the negligence of each
other Party, but excluding Willful Action.
6.3 For the purpose of this Section 6, Willful Action shall
be defined hereof, as follows:
6.3.1 Action taken or not taken by a Party at the
direction of its directors or members of its governing bodies,
officers, or employees having management responsibility affecting
its performance under this Agreement, as follows:
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6.3.1.1 Action which is knowingly or
intentionally taken or not taken with conscious indifference to
the consequences thereof or with intent that injury or damage
would result or is likely to result therefrom.
6.3.1.2 Action which has been determined by
final arbitration award or final judgment or judicial decree to
be a material default under this Agreement and which occurs or
continues beyond the time specified in such arbitration award or
judgment or judicial decree for curing such default or, if no
time to cure is specified therein, occurs or continues thereafter
beyond a reasonable time to cure such default.
6.3.1.3 Action which is knowingly or
intentionally taken or not taken with the knowledge that such
action taken or not taken is a material default under this
Agreement.
6.3.2 Willful Action does not include any act or
failure to act which is merely involuntary, accidental, or
negligent.
6.3.3 The phrase "employees having management
responsibility", as used in this Section 6.3, means the employees
of a Party who are responsible for one or more of the executive
functions of planning, organizing, coordinating, directing,
controlling, and supervising such Party's performance under this
Agreement with responsibility for results.
6.4 The provisions of this Section 6 shall be binding upon
the Parties to the full extent permitted by law.
7.0 AUTHORIZED REPRESENTATIVE
Each Party shall designate, by written notice to the other
Party, a representative who is authorized to act on its -behalf in
the implementation of this Agreement and to enter into
transactions under this Agreement, provided that the Authorized
Representative shall have no authority to modify any provisions
of this Agreement. The Authorized Representative shall have the
authority to sanction other representatives for the purpose of
entering into transaction under this Agreement. Either Party may
at any time change the designation of its Authorized
Representative by written notice to the other Party.
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8.0 NONPRECEDENT AND RESERVATION OF RIGHTS
8.1 Nonprecedent. None of the principles or the
methodologies underlying this Agreement shall be deemed by any
Party as binding precedent in any proceeding or litigation except
to the extent specifically stated herein.
9.0 PREVIOUS COMMUNICATIONS
This Agreement contains the
understanding between the Parties
herein, and supersedes all prior
representations, and discussions
10.0 NONSEVERABILITY
entire agreement and
as to the subject matter
agreements, commitments,
between the Parties.
This Agreement is subject to each and every condition set
forth herein, and each term of this Agreement is in consideration
and support of every other term.
11.0 NONWAIVER OF CONTRACTUAL RIGHTS
The failure of any Party to insist promptly in any one or
more instances upon strict performance of any provision of this
Agreement, or to enforce any of its rights, shall not be
construed as a waiver of any such provision or the relinquishment
of any such rights.
12.0 UNCONTROLLABLE FORCE
No Party shall be considered to be in default in the
performance of any of its obligations hereunder other than the
obligation of a Party to make payment, when a failure of
performance shall be due to an uncontrollable force. The term
"uncontrollable force" shall mean any cause beyond the control of
the Party unable to perform such obligation, including, but not
limited to, failure of or threat of failure of facilities, flood,
earthquake, storm, fire, lightning, and other natural
catastrophes; epidemic, war, riot, civil disturbance or
disobedience, strike, labor dispute, labor or material shortage,
sabotage, government priorities, and restraint by court order or
public authority, and action or nonaction by or failure to obtain
the necessary authorizations or.approvals from any governmental
agency or authority, which by exercise of due diligence such
Party could not reasonably have been expected to avoid and which
by exercise due diligence it shall be unable to overcome.
Nothing contained herein shall be construed as to require a Party
to settle any strike or labor dispute in which it may be
involved.
13.0 NONDEDICATION OF FACILITIES
No undertaking by one Party to another under any provision
of this Agreement shall constitute the dedication of the electric
system or any portion thereof of such Party to the public or to
the other Party, and it is understood and agreed that any such
undertaking by any Party shall cease upon the termination by such
Party of its obligations hereunder.
14.0 NOTICES
14.1 Any formal notice, demand or request provided for in
this Agreement, or served, given or made in this Agreement, or
served, given or made in connection with it, shall be in writing
and shall be deemed properly served, given or made if delivered
in person or sent by United States mail, postage prepaid, to the
person specified below:
To Azusa: Director of Utilities
P.O. Box 9500
729 N. Azusa Avenue
Azusa, CA 91702
To Vernon: Attention: Chief Executive Officer
Utilities Department
Light and Power Department
4305 Santa Fe Avenue
Vernon, CA 90058-0805
14.2 Either Party may at any time and from time to time, by
notice to each other Party, change the designation or address of
the person so specified as the one to receive notices pursuant to
this Agreement.
15.0 RELATIONSHIP OF PARTIES
The covenants, obligations and liabilities of the Parties
are intended to be several and not joint or collective. Nothing
contained in the Agreement shall be construed to create an
association, joint venture, trust, agency, or partnership. Each
Party shall be individually responsible for its own covenants,
obligations and liabilities as provided in this Agreement. No
Party shall be under the control of or shall be deemed to control
another Party. No Party shall be the agent of or have a right or
power to bind another Party without such other Party's express
written consent.
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16.0 NO THIRD PARTY RIGHTS
The Parties do not intend to create rights in, or to grant
remedies to, any third party as a beneficiary of this Agreement
or of any duty, covenant, obligation or undertaking established
herein.
17.0 ASSIGNMENT
No Party shall assign or otherwise transfer this Agreement,
or its right or interest or any part thereof to any third party,
without the prior written consent of each other Party except as
set forth herein. Such consent shall not be unreasonably
withheld. No assignment of this Agreement shall relieve the
assigning party of its obligations until such obligations have
been assumed in writing by the assignee.
18.0 GOVERNING LAW AND REGULATIONS
This Agreement shall be interpreted, governed, and construed
under the laws of the State of California as if to be performed
wholly within the State of California.
19.0 CONSTRUCTION OF AGREEMENT
Ambiguities or uncertainties in the wording of this
Agreement shall not be construed for or against the Parties, but
shall be construed in a manner that most accurately reflects the
intent of the Parties, as expressed when this Agreement was
executed and as is consistent with the nature of the rights and
obligations of the Parties with respect to the matter being
construed.
20.0 CAPTIONS AND HEADINGS
All captions and headings appearing in this Agreement are
inserted to facilitate reference and shall not govern the
interpretations hereof.
21.0 SIGNATURE CLAUSE
The signatories hereto represent that they have been
appropriately authorized to enter into this Agreement between the
City of Vernon and the City of Azusa, which each signs. This
Agreement is entered into on this day of
1998.
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ATTEST:
BY:
Seal:
TITLE•
APPROVED AS TO FORM:
BY:
TITLE:
ATTEST:
BY:
BRUCE V. MALKENHORST
TITLE: Citv Clerk
APPROVED AS TO FORM:
BY:
DAVID B. BREARLEY
TITLE: City Attorney
Seal:
CITY OF AZUSA
BY:
TITLE:
CITY OF VERNON
BY:
LEONIS C. MALBURG
TITLE: Mayor
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December 3, 1998
TO: Bruce V. Malkenhorst, City Administrator
FROM: Kenneth J. DeDario, Director of Utilities''
SUBJECT: Azusa Service Agreement
Please place the following on the City Council agenda:
Consideration of a Service Agreement Between the City of Vernon and the
City of Azusa.
If you have any questions or comments, please contact me. Thank you for your consideration.
INFOXIM