HomeMy WebLinkAbout04092 - NEW WEST ENERGY • • New West Energy
(subsidiary of SRP)
AGREEMENT 44092
R19501, 4-21-99
NEW WEST ENERGY CORPORATION
AND
CITY OF PALM SPRINGS
RETAIL SUPPORT SERVICES AGREEMENT
NEW WEST ENERGY CORPORATION
AND
THE CITY OF PALM SPRINGS, CALIFORNIA
RETAIL SUPPORT SERVICES AGREEMENT
THIS RETAIL SUPPORT SERVICES AGREEMENT ("Agreement") is made and
entered into this 21st day of April, 1999 (the "Effective Date"), by and between THE CITY OF
PALM SPRINGs, a California municipal corporation (the "City"), and NEW WEST ENERGY
CORPORATION, an Arizona corporation ("NWE"), which is a wholly owned subsidiary of Salt
River Project Agricultural Improvement and Power District("SRP").
RECITALS
A. The City and Enron California Municipal Services, Inc. (formerly known as Palm
Springs Utility Solutions, Inc. and FirstPoint California, Inc.) are parties to a Municipal Utility
Services Agreement dated February 5, 1997 pursuant to which Enron's predecessor was selected
by the City to provide services to support the City's operations as a public agency aggregator in
the newly competitive market for electricity in the State of California.
B., Enron Corp. and its various subsidiaries and affiliate have now determined that
they no longer wish to continue the program described in the February 5, 1997 Municipal Utility
Services Agreement and have give notice to the City of their intention to terminate the program.
C. NWE is willing to provide on a trial basis certain services to the City that would
allow City to continue to sell electricity to those parties with which City presently has month to
month contracts to provide electric energy sales, as well as other residential customers located
within the boundaries of the City that City is obligated to offer service.
D. NWE has therefore entered into a Municipal Utility Services Agreement with the
City on even date with this Agreement.
E. Under the Municipal Utility Services Agreement between City and NWE, NWE
has agreed to provide certain support services to enable the City to serve as a public agency
aggregator of electric services within its municipal boundaries and to coordinate the provision of
unbundled energy and energy-related services to the City and its residents and, at NWE's
discretion, businesses located within the City's boundaries.
F. The Municipal Utility Services Agreement between City and NWE, provides a
general framework for the City's and NWE's rights and obligations related to the City's activities
as a public agency aggregator.
G. Contemporaneously with this Agreement, pursuant to Section 4.3 of the
Municipal Utility Services Agreement between the parties, the City has entered into a Power
Purchase and Sale Agreement with SRP (the "Power Purchase Agreement") for the purpose of
111/164826.06.00 1
04209911039/49263.00008
obtaining wholesale electricity for resale to certain of the City's customers that NWE has agreed
to serve pursuant to the provisions of Section 2.1 of the Municipal Utility Services Agreement.
H. Contemporaneously with this Agreement, the City and NWE are entering into a
Financial Assurances Agreement addressing the allocation of certain risks to which the City may
be exposed hereunder and under the Power Purchase Agreement.
I. The City and NWE desire to enter into this Agreement in order to provide further
definition of the certain services that NWE will provide, either directly or through one or more of
is affiliates, to the City.
NOW, THEREFORE,the parties hereto agree as follows:
1.0 PURPOSE AND LENGTH OF AGREEMENT.
1.1 Purpose. This Agreement is in furtherance of Section 1.1 of the Municipal
Utility Services Agreement, and defines NWE's obligations under Sections 1.2, 2.1 and 4.2 of
that agreement.
1.2 Nature of Services. Subject to the limitations set forth in Section 2.1 of the
Municipal Utility Services Agreement, the services to be provided by NWE under this
Agreement support the City's provision of retail electric utility service as a public agency
aggregator.
1.3 Term. This Agreement shall be effective from the date set forth above, and
unless earlier terminated due to breach by a party as provided in Section 5.2, will terminate on
the date on which the Municipal Utility Services Agreement between City and NWE terminates
pursuant to Section 1.4 thereof, or (b) the date on which the Power Purchase Agreement is
terminated pursuant to the terms thereof.
2.0 SCOPE OF SERVICES.
2.1 General. a)NWE's provision of services is contingent upon compliance with the
restrictions of California and federal law and regulatory control, including without limitation the
California Public Utilities Code, the Federal Power Act, and decisions of the California Public
Utilities Commission ("CPUC") and the Federal Energy Regulatory Commission ("FERC")
implementing the California direct access program. NWE and the City shall take all reasonable
actions to achieve compliance with the foregoing and with applicable laws and regulations,
including, without limitation, the maintenance of the City's status as a public agency aggregator.
Without limiting the foregoing, in no event will NWE be obligated to provide any services or
take any action that would cause it, its parent corporation or its affiliated companies to be
classified or regulated as a public utility under any federal or state law. Within the constraints of
such laws and regulations,NWE will diligently endeavor to provide the services provided in this
111/164826.06.00 2
042099/1049/49263.00008
Agreement. In the event that such jurisdiction may be asserted by the CPUC or the FERC, NWE
may immediately terminate this Agreement.
b) City represents and warrants to NWE that City is in compliance with all
applicable state and federal law and regulation with regard to the provision of services and
general duties to be performed under this Agreement, and that City is in possession of all
necessary permits, licenses or right to perform under this Agreement and enable NWE to perform
its duties. City covenants that it will continue to remain in compliance with all applicable state
and federal law and regulation with regard to the provision of services and general duties to be
performed under this Agreement. In no event, however, shall City be liable to NWE for damages
for the breach of this covenant and warranty.
2.2 Rate Setting Authority. In order to meet its responsibilities hereunder, NWE
shall be responsible for establishing the retail prices and terms of service for retail sales of
electricity to the City's customers that are eligible for service pursuant to Section 2.1 of the
Municipal Utility Services Agreement between NWE and City. To the maximurn extent
permitted by law, the rates and terms of services may be set and adjusted by NWE without
approval by the City Council. The rate setting performed pursuant to this section shall not be
subject to the requirements of Articles 13C and 13D of the California Constitution
(Proposition 218) because (1) to the maximum extent permitted by law, the rates will be set by a
private party and not by the City or any of its departments; and (2) fees for the provision of
electrical service are specifically exempt under Article 13D, Section 3(b). If the City rescinds
this grant of rate-setting authority at any dine, or if the grant of rate setting authority is found to
be unlawful, then NWE shall have the right to terminate this Agreement upon ten (10) days'
notice to the City. NWE and City shall work together during such period to transfer City's
customers to the utility distribution company, Southern California Edison Company.
2.3 Payment for Services. The City will not compensate NWE directly for NWE's
services under this Agreement. In consideration for its services, City hereby assigns and NWE
shall be entitled to retain all proceeds collected by the City or NWE with respect to sales of
electricity to the City's customers that are covered by the Municipal Utility Services Agreement
between NWE and City. From such proceeds, NWE will be responsible to pay when due
amounts owed by the City under the Power Purchase Agreement, amounts owed by the City to
the UDC and to the ISO under applicable tariffs, applicable taxes and surcharges imposed with
respect to sales of electricity, and amounts owed by NWE to subcontractors for customer
acquisition costs, customer care costs, metering, billing and collection activities. Without
limiting the foregoing, NWE shall be entitled to receive and retain, the full amount of any credits
from the UDC against charges with respect to providing electricity and related services to the
City's customers that are covered by the Municipal Utility Services Agreement between NWE
and City. NWE shall not be responsible for any costs, expenses or liabilities associated with
service that was provided by City, Enron California Municipal Services, Inc. or any other entity
on behalf of City, prior to the time that NWE commenced service under the provisions of this
Agreement, even if such costs, expenses and liabilities are not billed to City or its retail agent
until after the effective date of this Agreement. NWE shall not be responsible for any costs,
expenses or liabilities associated with service that is being provided by City, Enron California
111/164826.06.00 3
04209911039/49263.00008
Municipal Services, Inc. or any other entity on behalf of City to customers that are not covered
by Section 2.1 of the Municipal Utility Services Agreement between NWE and City.
2.4 Description of Services.
2.4.1 Marketing. NWE will provide services that will allow the City to
continue to serve those customers with which it has month to month electric energy services
agreements, as of the date of this Agreement and other residential customers that City may be
obligated to provided service to pursuant to the provisions of Public Utilities Code Section 366.
In addition, at its sole discretion, but consistent with the provisions of Section 366 of the Public
Utilities Code, NWE may determine to undertake certain marketing efforts targeting residential
and small commercial customers, direct sales, and large commercial and industrial customers on
behalf of the City. NWE, in its own discretion, may determine the scope and methods of such
undertaking and shall be free to determine its overall marketing and sales efforts, but shall give
notice of the availability of the program to potential residential customers using the
comrmunications means set forth in paragraph 2.1(d) of the Municipal Utility Services
Agreement. Prior to delivering any marketing materials to the City's customers, NWE shall
deliver to the City's Contract Officer(as that term is used in Section 3.2 of the Municipal Utility
Services Agreement) a copy of the marketing materials for approval by the Contract Officer,
which approval shall not unreasonably be withheld. The Contract Officer shall promptly, and in
any case within ten days after delivery of the marketing materials, either approve or disapprove
of the materials which approval shall not unreasonably be withheld. If the Contract Officer
disapproves of the materials, the Contract Officer shall provide detailed comments to NWE's
regarding the reasons for disapproval. If the Contract Officer does not respond to any marketing
materials within the ten-day review period, then the materials shall be deemed approved.
2.4.2 Sales. NWE may develop new forms of power sales contracts for the
City's customers or use existing forms as NWE determines in its sole discretion. The City's
Contract Officer shall take all actions reasonably necessary to approve the forms of contract, with
such changes as the City's Contract Officer shall approve from time to time. The City shall not
unreasonably withhold its approval of fonns of contract submitted by NWE for approval.
NWE shall establish and maintain sales support staff to respond to reasonable foreseeable
levels of customer inquiries and to enroll customers. In such marketing and sales efforts, NWE
shall comply with the provisions of Section 366 of the Public Utilities Code.
2.4.3 Scheduling Coordination and Load Forecasting. Under Section 4.2 of
the Municipal Utility Services Agreement between the City and NWE, NWE has been appointed
the City's scheduling coordinator. In that role, NWE shall provide or cause to be provided either
directly or through an affiliate or subcontractor, all scheduling coordination and load forecasting
services necessary to receive energy at the Delivery Points (as defined in the Power Purchase
Agreement) and redeliver such energy to those customers of the City that NWE's is serving
pursuant to the terms of Section 2.1 of the Municipal Utility Services Agreement between NWE
and City in accordance with applicable laws, regulations and tariffs. City hereby consents to
NWE's use of SRP as its scheduling coordinator.
1 1 1/1 6 4 826.06.00 4
0 42 0 9 9/1 0 3 9/492 6 3.00008
2.4.4 Revenue Cycle Services. With respect to those customers that NWE is
serving pursuant to Section 2.1 of the Municipal Utility Services Agreement between NWE and
City, NWE shall, directly or through an affiliate or subcontractor, read the customer's meter or
arrange for collection of meter information, process the bill, collect the remittances and respond
to customer concerns and questions, in accordance with standards promulgated from time to time
by the CPUC for such activities.
With respect to metering services, the following procedures shall apply:
2.4.4.1 For those customers that are required to or elect to use hourly
demand meters and that do not have such meters or do not have meters that comply with
applicable standards necessary for NWE to provide metering services, NWE will, directly or
through an affiliate or subcontractor, supply meters adequate to provide the customer with
metering services. NWE will recover an, costs for acquiring or installing such interval meter in
excess of its then current allocated meter credit solely from charges paid by the City's customers.
NWE shall be entitled to retain all revenues collected, net of any amounts (if any) paid to the
UDC for meter-related services under applicable tariffs. The City will not be obligated to pay
any shortfall between the cost of such meters and amounts collected from the City's customers.
At termination of a customer's contract with the City, the customer will be given the opportunity
to purchase the meter from NWE pursuant to a separate agreement. If the customer does not
purchase the meter from NWE, the customer will be required to pay NWE's then-standard
removal charges and NWE shall continue to own the meter.
2.4.4.2 NWE will prepare and deliver to the City from time to time
schedules of standard meter removal charges. Meter removal charges will be sufficient to
reimburse NWE for labor and materials costs for removal and refurbishment of the meter,
average storage costs, and reinstallation and recalibration of the meter for its next application.
The initial meter removal cost will be $350 per meter. NWE will be entitled to retain the full
amount of meter removal costs charged to customers.
2.4.4.3 All meters supplied by NWE will conform to all UDC and CPUC
requirements and specifications. NWE will cause the meter to be installed, read and maintained
in accordance with California standards and UDC specifications. NWE will also contract for
delivery of the data to a qualified MDMA.
2.4.4.5 NWE will coordinate all contacts with the local UDC.
2.4.4.6 The parties acknowledge that the terms under which NWE will
provide metering services will be subject to revision as additional regulations become available.
As the City's billing agent, NWE will perform or contract for the performance of billing
and related processing services necessary for the collection of amounts due from the City's
electric customers served by NWE, in accordance with applicable laws and regulations, and for
remitting all amounts due third parties under the Power Purchase Agreement, under applicable
tariffs, and under agreements entered into pursuant to applicable tariffs.
111/164826.06.00 5
042099/1039149263.00008
NWE will undertake necessary activities to collect delinquent payments due from the
City's electric customers served by NINE, to the extent that it is cost effective in NWE's
discretion to pursue such action. To the extent not prohibited by law, the City appoints NWE as
the City's agent to undertake such collection activities. NWE may undertake collection activities
directly or through third-parry collection agents in compliance with applicable laws and
regulations.
NWE will establish and maintain staffing and procedures designed to respond in a timely
manner to anticipated levels of customer inquiries and complaints.
2.4.5 Outage Reporting Assistance. NWE will, as part of its customer
response service, notify customers served by it how to report outages or damages to distribution
system facilities to the entity responsible for correcting such outages or damage to the
distribution system.
2.4.6 Distribution Coordination. NWE will arrange for distribution services
for customers served by it under the filed tariffs of the UDC from the Delivery Point(s) specified
in the Power Purchase Agreement to the City's customers that it serves pursuant to the provisions
of Section 2.1 of the Municipal Utility Services Agreement.
2.5 Use of the City's Name. 'The City grants to NWE the right to use the name of the
City and of Palm Springs Energy Services in the performance of NWE's duties hereunder,
including the right to cash and deposit checks payable to the City for electric services rendered
pursuant to this agreement and the Municipal Utility services Agreement.
3.0 IMPLEMENTATION.
3.1 Coordination of Work. The City and NWE will coordinate work performed
under this Agreement through their respective representatives appointed under the Municipal
Utility Services Agreement.
3.2 Insurance. NWE shall procure and maintain, at its sole cost and expense, in a
form and content satisfactory to the City, during the entire term of this Agreement including any
extension thereof, the following policies of insurance or evidence of self insurance by NWE for
the same coverages:
(a) Comprehensive General Liability Insurance. Comprehensive general
liability insurance for a combined single limit of $5,000,000 for bodily
injury, death and property damage, contractual liability and products and
completed operations.
(b) Worker's Compensation Insurance. Worker's compensation insurance in
such amount as will fully comply with the laws of the State of California
and employers liability insurance in the amount of $1,000,000 per
accident.
111/164826.06.00 6
04209911039/49263.00008
(c) Automobile Insurance. Comprehensive automobile liability insurance
written on a per occurrence basis for either (i) bodily injury liability limits
of$250,000 per person and $500,000 per occurrence and property damage
liability limits of$100,000 per occurrence and $250,000 in the aggregate
or (ii) combined single limit liability of $500,000. Said policy shall
include coverage for owned, nonowned, leased and hired cars.
All of the above policies of insurance shall be primary insurance. The insurer, if any,
shall waive all rights of subrogation and contribution it may have against the City, its officers,
employees and agents and their respective insurers. All of said policies of insurance shall
provide that said insurance may not be amended or canceled without providing thirty (30) days
prior written notice to the City. In the event any of said policies of insurance are canceled,
NWE shall, prior to the cancellation date, submit new evidence of insurance or self insurance in
conformance with this Section to the City. No work or services under this Agreement shall
commence until NWE has provided the City with Certificates of Insurance or self insurance
evidencing the above insurance coverages and said Certificates of Insurance or binders are
approved by the City.
In the event NWE subcontracts any portion of the work, the contract between NWE and
such subcontractor shall require the subcontractor to maintain the same policies of insurance that
NWE is required to maintain pursuant to this Section.
3.3 Current customer information. City shall provide to NWE, or cause Enron
California Municipal Services, Inc., to provide NWE on its behalf, within five (5) days of the
date of this Agreement, usage and billing data for all customers presently served by the City.
Said data shall be provided without cost to NWE in the same format that is generally provided by
Southern California Edison Company to an energy service provider when a direct access service
agreement request is filed with the utility.
4.0 RECORDS AND REPORTS.
NWE will keep books, accounts and records that accurately reflect all payments received
and all expenditures incurred in connection with this Agreement. The books, accounts and
records shall be maintained at the principal place of the business of NWE. NWE will, during
regular business hours, make the books, accounts and records to be maintained hereunder
available to the City or a representative of the City for examination and audit. Whenever
possible, the City shall give 72 hours' notice to NWE of the City's intent to examine and audit
the books, accounts and records. Any such audit will be at the expense of the City. NWE shall
retain for safekeeping and store all original invoices, statements, purchase orders, billings and
other documents with respect to this Agreement. NWE shall retain and keep accessible all such
fiscal records, books, documents, papers, plans and writings for a minimum of four years, except
as required longer by law, following final payment and termination of this Agreement, or until
the conclusion of any audit, controversy or litigation arising out of or related to this Agreement,
whichever date is later. NWE shall make available to the City and should the City so request,
111/164826.06.00 7
04209911039149263.00008
provide within reason copies of all or any portion of any invoice, statement, purchase order,
billing report or other document with respect to this Agreement. NWE acknowledges and agrees
that these books, accounts and records may be subject to public disclosure to the extent required
by the Public Records Act, Cal. Government Code Section 6250 et. seq.; provided, that to the
extent any such records constitute "customer information," as such term is used in Cal. Public
Utility Code Section 394.4, those records shall be kept confidential unless the customer whose
information would be disclosed consents in writing to such disclosure.
5.0 MISCELLANEOUS.
5.1 Time of Essence. Parties agree that time is of the essence in the performance of
this Agreement.
5.2 Defaults and Right to Cure. Failure or delay by either party to timely perform
any covenant of this Agreement constitutes a default under this Agreement, but only if the party
who so fails or delays does not commence to cure, correct, or remedy such failure or delay within
thirty (30) days after receipt of a written notice specifying such failure or delay, and does not
thereafter prosecute such cure, correction, or remedy with diligence to completion. The injured
party shall give written notice of default to the party in default, specifying the default complained
of by the injured party. Except as required to protect against further damages, the injured party
may not institute proceedings against the party in default until thirty (30) days after giving such
notice. Failure or delay in giving such notice shall not constitute a waiver of any default, nor
shall it change the time of default.
5.3 Dispute Resolution. All claims and disputes between the City and NWE arising
out of or related to this Agreement will first be attempted to be resolved by the responsible
management personnel for both parties. Resolution failing to materialize, senior management for
both the City and NWE will negotiate in good faith to reach an acceptable and timely resolution
of the claim or dispute. Should the parties be unable to resolve the dispute to their mutual
satisfaction within two (2) weeks after such negotiation by senior management, or any other
mutually agreeable time period, the parties will attempt to resolve the dispute through
non-binding mediation (using a mediator upon which the parties shall mutually agree within
thirty (30) days), as a condition precedent to pursuing litigation. Neither party shall be obligated
to engage in mediation for longer than two (2) weeks. Each party will be responsible for its own
expenses and one-half of any mediation expenses incurred to resolve the dispute. If the parties
are still unable to resolve their differences after good faith consideration of a resolution through
mediation for a period not to exceed two (2) weeks, each party will have the right to pursue
litigation in accordance with the provisions set forth below. Neither party may commence any
action at law or in equity as a result of any dispute, controversy or claim arising out of or in
connection with or relating to this Agreement or any breach or alleged breach hereof until the
above procedures with respect to settlement and mediation have been complied with.
5.4 Limitation of Liability; Remedies. The parties expressly agree that neither party
has any claims one against the other at this time.
111/164826.06.00 $
042099/1039/49263.00008
0
The parties agree that it would be extremely difficult and impracticable, if not impossible
to ascertain with any degree of certainty, the damages suffered by either party by the failure to
perform the Agreement.
Based on the foregoing, the parties waive one against the other any right to assert any
claim for loss or damage for the breach of any term of this Agreement. As used herein, "claim"
includes any effort to recover losses, damages, expenses, whether direct, indirect, or
consequential, and whether general, punitive, or otherwise. No legal damages shall be available
for a breach of the terms hereof and the sole and exclusive remedy shall be an action for specific
performance or declaratory or injunctive relief.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
HERETO FOR ANY LOST OR PROSPECTIVE PROFITS OR ANY OTHER SPECIAL,
PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR INDIRECT LOSSES OR
DAMAGES (IN TORT, CONTRACT OR OTHERWISE) UNDER OR IN RESPECT OF THIS
AGREEMENT OR FOR ANY FAILURE OF PERFORMANCE RELATED HERETO
HOWSOEVER CAUSED, WHETHER OR NOT ARISING FROM THAT PARTY'S SOLE,
JOINT OR CONCURRENT NEGLIGENCE.
5.5 Attorneys' Fees. In the event of any dispute resulting in litigation between the
parties hereto involving the covenants or conditions contained in this Agreement or arising out of
the subject matter of the Agreement, the prevailing party shall be entitled to recover, and the
other party agrees to pay, all reasonable fees, expenses and costs, including but not limited to
attorneys' fees both at trial and upon appeal.
5.6 Notices. Unless otherwise provided for herein, any notice to be given or other
document to be delivered by either party to the other hereunder shall either be delivered in person
to such party or may be deposited in the United States mail, duly certified or registered, or by
reputable overnight delivery service, with postage prepaid, addressed to the party for whom
intended as follows:
To the City: City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92263
Attention: City Manager
Telephone: (760) 322-8350
Facsimile: (760) 323-8207
Copy to: Rutan& Tucker
611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92626
Attention: David J. Aleshire, Esq.
Telephone: (714) 641-5100
Facsimile: (714) 546-9035
111/164826 06.00 9
042099/1039/49263.00008
To NWE: New West Energy Corporation
P. O. Box 61868
Phoenix, AZ 85082-1868
Attention: Acme Bertolet
Either party may from time to time, by written notice to the others, designate a different
address which shall be substituted for the one above specified, and for specify additional parties
to be notified. Notwithstanding anything to the contrary herein contained, any notices or
documents which may lie delivered by mail pursuant to this Section 5.6 must be actually
delivered to the other party on the last business day immediately preceding any deadline date
specified in this Agreement.
5.7 Assignment. Neither party shall assign this Agreement or any of its rights or
obligations hereunder without the prior written consent of the other party, which consent shall
not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may,
without the need for consent from the other party (and without relieving itself from liability
hereunder), (a)transfer, sell, pledge, encumber or assign this Agreement or the accounts,
revenues or proceeds hereof in connection with any financing or other financial arrangements;
(b)transfer or assign this Agreement to an affiliate of such party; or (c) transfer or assign this
Agreement to any person or entity succeeding to all or substantially all of the assets of such
party; provided, however, that in each such case any such assignee shall agree in writing to be
bound by the terms and conditions hereof.
5.8 Entire Agreement. This Agreement contains the entire agreement of the parties
hereto with respect to the matters covered hereby, and all negotiations and agreements,
statements or promises between the parties hereto or their agents with respect to this transaction
are merged in this Agreement, which alone expresses the parties' rights and obligations, and if
not contained herein shall not be binding or valid against either of the parties hereto.
5.9 Modification. Any amendments or modifications to this Agreement must be in
writing and executed by both parties to this Agreement.
5.10 Interpretation-Governing_Law. This Agreement shall be construed according
to its fair meaning and as if prepared by both parties hereto. This Agreement shall be construed
in accordance with the laws of the State of California in effect at the time of the execution of this
Agreement. Titles and captions are for convenience only and shall not constitute a portion of this
Agreement. As used in this Agreement, masculine, feminine or neuter gender and the singular or
plural number shall each be deemed to include the others wherever and whenever the context so
dictates.
5.11 No Waiver. No delay or omission by either party hereto in exercising any right
or power accruing upon the compliance or failure of performance by the other parry hereto under
the provisions of this Agreement shall impair any such right or power or be construed to be a
waiver thereof. A waiver by either party hereto of a breach of any of the covenants, conditions or
11 VI64826.06.00 10
042099/1039/49263.00008
agreements hereof to be performed by the party shall not be construed as a waiver of any
succeeding breach of the same or other covenants, agreements, restrictions or conditions thereof.
5.12 Severability. If any term, provision, condition or covenant of this Agreement or
the application thereof to either party or circumstances shall, to any extent, be held invalid or
unenforceable, the remainder of this instrument, or the application of such term, provision,
condition or covenant to persons or circumstances other than those as to whom or which it is held
invalid or unenforceable, shall not be affected thereby, and each term and provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
5.13 Authority to Execute. Each individual executing this Agreement on behalf of a
party represents and warrants that he or she is duly authorized to execute and deliver this
Agreement on behalf of such party, that all conditions to the exercise of such authority have been
satisfied and that this Agreement will be binding upon such entity in accordance with its terms.
5.14 Counterparts. This Agreement, including any exhibits attached hereto may be
executed by the parties hereto in several counterparts, each of which shall be deemed to be an
original copy.
5.15 No Joint Venture. Nothing in this Agreement is intended to create a joint
venture or any other form of business association, partnership, or entity among the parties. The
City is interested only in the result to be achieved as a result of this Agreement and the conduct
and control of the work to be performed will be as provided herein.
5.16 Captions and Headings. The captions and headings of this Agreement are for
convenience only and shall not be construed or referred to in resolving questions of interpretation
or construction. Any Recitals set forth at the beginning of this Agreement are contractual and
shall be considered or referred to in resolving questions of interpretation or construction.
5.17 Publici . NWE and the City shall coordinate with respect to any press releases
or publicity related to this Agreement and the business relationships created herein except for
general public filings and releases which discuss broadly agreements of this nature and except for
legally required disclosures.
1111164826.06.00 11
042099/1039/49263.00008
IN WITNESS WHEREOF, the parties hereto have executed this Retail Support Services
Agreement the day and year first above written.
NWE
NEW WEST ENERGY CORPORATION, AN ARIZONA
CORPORATION
By:
Name: Anne Bertolet
Title: Director of Marketing & Sales
By: (O��P6)L.o �'✓�
Name: t Oj f etl\ CC),I J L-Lie 11
Title: fflwa5(n5 ,�ti;eC�ab
THE CITY
THE C[ Y OF PALM SPRINGS, ICIPAL CORPORATION
By:
City M Hager
ATT
y: G=� .e
ES City Clerk
REVIEWED AND APPROVED AS TO :FORM:
By: �1 G^
Cit-it
111/164826.06.00 12
042099/1039/49263.00008