Loading...
HomeMy WebLinkAbout23- Street Lighting Agreement - Northwestern Energy - Installation of Interim Street Lights on Griffin Drive 340184802 Griffin & Manley Rd Temp Lights 1 Street Lighting Agreement – CITY OF BOZEMAN Griffin Drive RR Crossing STREET LIGHTING AGREEMENT This Street Lighting Agreement (“Agreement”) is made effective as of the 24th day of January, 2023, by and between City of Bozeman, a municipal corporation organized under the laws of the State of Montana, with a mailing address of PO BOX 1230, Bozeman MT 59718 (the “City”), and NorthWestern Corporation d/b/a NorthWestern Energy (“NorthWestern”), a corporation organized under the State of Delaware, with a mailing address of 11 East Park Street, Butte, Montana 59701. WHEREAS, the City and NorthWestern desire to install street light facilities on poles owned by NorthWestern at the railroad crossing on Griffin Drive in Bozeman, MT as an interim measure until the City is able to install permanent facilities on its own poles; and WHEREAS, NorthWestern is willing to supply, install, operate, maintain and own the street lighting facilities and furnish electrical energy in accordance with the NorthWestern’s Electric Tariffs on file with the Montana Public Service Commission (the “Tariffs”) and the terms and conditions of this Agreement; NOW, THEREFORE, NorthWestern and the City agree as follows: 1. FACILITY INSTALLATION, OWNERSHIP, OPERATION AND MAINTENANCE. 1.1 Facilities. NorthWestern shall supply and install the street lighting facilities described in Exhibit 1 to this Agreement (the “Facilities”) in the locations described therein. NorthWestern shall furnish all labor, equipment, parts and materials and is responsible for all performance means, methods and procedures associated with the supply and installation of the Facilities. Upon notice from the City NorthWestern must remove the facilities installed pursuant to this Agreement. Upon removal by NorthWestern, the agreement shall terminate. 1.2 Ownership. Facilities shall remain the property of NorthWestern during the Term. Upon the termination of this Agreement, NorthWestern shall remove the Facilities. 1.3 Operation and Maintenance Services. NorthWestern shall maintain and operate the Facilities during the Term in accordance with the Tariffs and the terms and conditions of this Agreement. The City shall provide NorthWestern access rights for the installation, operation and maintenance of the Facilities. NorthWestern shall supply electrical energy to the District for the operation of the Facilities, but does not guaranty uninterrupted service pursuant to Tariff Rule 8-2 – Continuity of Service. NorthWestern has no duty or obligation to patrol Facilities at all times to determine if the Facilities are in operating condition, but agrees to make necessary repairs and replacements within a reasonable time after receiving notice of any outage or damage. 1.4 Rates and Charges. The City agrees to compensate NorthWestern for the supply, installation, operation, maintenance of the Facilities and the delivery of electrical energy in accordance with the rates, terms and conditions set forth in the Tariffs applicable as of the date of NorthWestern’s performance of such services. 2. TERM AND TERMINATION. DocuSign Envelope ID: B2ABF366-5465-494D-A77B-7E1A70CC9BF9 340184802 Griffin & Manley Rd Temp Lights 2 Street Lighting Agreement – CITY OF BOZEMAN Griffin Drive RR Crossing 2.1 Term. This Agreement is effective as of the date of execution by both parties. This Agreement shall remain in full force and effect for a period of 2 years and 11 months from the later of (i) the date hereof; or (ii) the energization of the Facilities, and shall thereafter continue in force and effect for successive periods of 2 years and 11 months (each a “Renewal Term”), until and unless terminated pursuant to Section 2.2. The Initial Term and Renewal Term are together referenced as the “Term” of the Agreement herein. At the end of the Initial Term (and prior to any subsequent Renewal Term of the Agreement), the City shall take such action as is required by law to authorize the extension of this Agreement. 2.2 Termination. Either party may terminate this Agreement upon delivering to the other party notice in writing of its intent to terminate at least 60 days prior to the expiration of the applicable Term. Either party may terminate this Agreement if the other party defaults in performance or breaches any of the material terms and conditions of this Agreement and fails to cure such default or breach within 30 days after written notice of such default. If any non- monetary default is not capable of cure within 30 days of receipt of the notice, the applicable period will be extended to 90 days, provided the defaulting party undertakes commercially reasonable efforts to resolve the default upon receipt of the notice. 3. IES COMPLIANCE. With regard to Facility design, installation and operation, NorthWestern will take into consideration position statements, standards, design guides, technical memoranda, lighting energy management materials, guidelines and lighting measurements, testing and calculation guides developed by the Illuminating Engineering Society (“IES Standards”). The City acknowledges that Facilities may not strictly comply with IES Standards. Additionally, nothing herein requires NorthWestern to: (i) modify existing Facilities to achieve compliance with current IES Standards; or (ii) modify Facilities during the Term to achieve compliance with IES Standards implemented after the effective date of this Agreement. 4. FORCE MAJEURE. NorthWestern is not liable for the failure to comply with any of the terms and conditions of this Agreement where such failure is caused by acts of God, government regulations or orders, strikes or labor difficulties, fires, floods, droughts, riots, destruction of property, or by any other unforeseeable condition, event, or circumstance beyond NorthWestern’s reasonable control. 5. DAMAGE LIMITATION. Neither party is liable to the other for any indirect, incidental, consequential, special, exemplary or punitive damages arising from or related to this Agreement, its performance, enforcement, breach or termination. 6. SEVERABILITY. If any provision of the Agreement, or the application thereof, is to any extent held invalid or unenforceable, the remainder of the Agreement will not be affected thereby, and each and every remaining provision will be valid and binding to the fullest extent permitted by law. If any provision of this Agreement is held invalid or unenforceable, the parties shall negotiate in good faith and reform this Agreement as closely as possible to resemble the original intent. DocuSign Envelope ID: B2ABF366-5465-494D-A77B-7E1A70CC9BF9 340184802 Griffin & Manley Rd Temp Lights 3 Street Lighting Agreement – CITY OF BOZEMAN Griffin Drive RR Crossing 7. ENTIRE AGREEMENT. The Agreement represents the entire agreement between NorthWestern and the City and supersedes any prior negotiations, representations or agreements, either written or oral. 8. MISCELLANEOUS. This Agreement is governed in all respects by the laws of the State of Montana. Any action arising out of this Agreement must be brought in state or federal courts of the State of Montana. NorthWestern is an independent contractor and not the employee, agent or representative of the City. This Agreement cannot be construed to create an employment relationship between NorthWestern and the City or a partnership, joint venture or joint undertaking between the parties. The City shall not assign this Agreement, in whole or in part, without the prior written consent of NorthWestern. This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors and assigns of the parties. No course of dealing or failure of a party to enforce strictly any term, right or condition of this Agreement may be construed as a waiver of such term, right or condition. No express waiver of any term, right or condition of this Agreement will operate as a waiver of any other term, right or condition. This Agreement will not be modified, amended or changed in any respect except by a Facilities Change Order or by an instrument in writing signed by authorized representatives of the parties. This Agreement is for the exclusive benefit of the NorthWestern and the City and does not constitute a third party beneficiary agreement and may not be relied upon or enforced by a third party. Each party represents that it has full power and authority to enter into and perform its obligations pursuant to this Agreement, and the person signing this Agreement has been properly authorized and empowered to execute the same. This Agreement may be executed in counterparts, which together constitute one instrument. Copies of this fully executed instrument have the same force and effect as the original. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA.IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed effective the day and year first above written. NORTHWESTERN ENERGY CITY OF BOZEMAN _________________________________________ (signature) (signature) ________________________________________________ __________________________________________________ (printed name) (printed name) ________________________________________________ __________________________________________________ (title) (title) _________________________________________ (date) (date) Attest: __________________________________________________ City Clerk DocuSign Envelope ID: B2ABF366-5465-494D-A77B-7E1A70CC9BF9 Bailey McCracken NWE ENGINEER 1/31/2023 Jeff Mihelich City Manager 1/31/2023 340184802 Griffin & Manley Rd Temp Lights 4 Street Lighting Agreement – CITY OF BOZEMAN Griffin Drive RR Crossing EXHIBIT 1 FACILITIES 1. Description of Facilities. The “Facilities” include the following: Number of Units _____2____ Electric Service __________Underground ______X___Overhead Pole Type _____X____Wood ________Metal _______Fiberglass Mounting Height __32_ feet Luminaire Type __Pendant_(NWE code C)_ (i.e. Cobra Head, Acorn, Shoebox) Lamp Wattage __42__ Watt Lamp Type __________HPSV __________MH ____X____LED Monthly cost per unit $ __$17.56___* *The monthly cost per unit does include energy, operations fee and maintenance fee. 2. Description of Facilities Location. Attached Map. 3. Installation Date. NorthWestern will undertake commercially reasonable efforts to install the Facilities by ____TBD____, subject to the following: (i) timely acquisition of equipment and materials; (ii) the timely receipt of all applicable governmental, regulatory and environmental approvals, permits and licenses required for the construction, installation and operation of the Facilities, (iii) the timely receipt of real property access rights for the Facilities; (iv) force majeure; and (v) acts or omissions of the City. The installation date is subject to a commercially reasonable extension upon the failure or occurrence of any condition referenced above. DocuSign Envelope ID: B2ABF366-5465-494D-A77B-7E1A70CC9BF9 DocuSign Envelope ID: B2ABF366-5465-494D-A77B-7E1A70CC9BF9 DocuSign Envelope ID: B2ABF366-5465-494D-A77B-7E1A70CC9BF9