2012-171oxnn�r�vcE rro. 2012-171
AN ORDINANCE OF THE CITY COUNCIL OF DENTON, TEXAS AUTHORIZING THE
CITY MANAGER TO EXECUTE AN AGREEMENT AMONG AND BETWEEN THE CITY
OF BRYAN, TEXAS, THE CITY OF DENTON, TEXAS, THE CITY OF GARLAND, TEXAS
AND THE CITY OF GREENVILLE, TEXAS REGARDING PREPAYMENT OF FIXED
COST POWER PURCHASE PAYMENTS TO BE PAID TO THE TEXAS MUNICIPAL
POWER AGENCY; AND PROVIDING AN EFFECTNE DATE.
WHEREAS, the City of Denton, Texas is a Member City of Texas Municipal Power
Agency ("TMPA"), a Joint Powers Agency; and TMPA consists of four Member Cities, being
the Cities of Bryan, Texas, Denton, Texas, Garland, Texas, and Greenville, Texas; and
WHEREAS, the City of Greenville, Texas intends to execute a 2013 transaction
regarding a deposit of money into the escrow fund established by the four TMPA Member Cities
of TMPA, for the fixed cost power purchase payments to be paid to TMPA; as Greenville, Texas
is electing to choose to execute such an escrow transaction, a11 four TMPA Member Cities must
approve the transaction by entering into an agreement; and
WHEREAS, it is appropriate for the City to execute this "Agreement among and between
the City of Bryan, Texas, the City of Denton, Texas, the City of Garland, Texas and the City of
Greenville, Texas Regarding Prepayment of Fixed Cost Power Purchase Payments to be Paid to
the Texas Municipal Power Agency (the "Agreement");" NOW THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The recitals in the preamble are true and correct and are incorporated
herewith by reference.
SECTION 2. The City Manager is hereby authorized to execute and deliver the
"Agreement among and between the City of Bryan, Texas, the City of Denton, Texas, the City of
Garland, Texas and the City of Greenville, Texas Regarding Prepayment of Fixed Cost Power
Purchase Payments to be Paid to the Texas Municipal Power Agency;" a copy of which
Agreement is attached hereto as Exhibit "A," and is incorporated herewith by reference.
SECTION 3. The City Manager is hereby authorized to execute and deliver any other
and further documents related to the said Agreement as are necessary to effectuate, finalize and
deliver said Agreement.
SECTION 4. This ordinance shall be and become effective immediately upon and after
its adoption and approval; provided however, that the Cities of Bryan, City of Garland, and City
of Greenville have each approved said Agreement.
PASSED AND APPROVED this the `��h day of , 2012.
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ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
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By:
AGREEMENT AMONG AND BETWEEN THE CITY OF BRYAN, TEXAS, THE CITY
OF DENTON, TEXAS, THE CITY OF GARLAND, TEXAS, AND THE CITY OF
GREENVILLE, TEXAS REGARDING PREPAYMENT OF FIXED COST POWER
PURCHASE PAYMENTS TO BE PAID TO THE TEXAS MUNICIPAL POWER
AGENCY
WHEREAS, this Agreement (this "Prepayrnent Agreement") is made and entered into as
of the Effective Date provided below by, between, and among the City of Bryan, Texas, the City
of Denton, Texas, the City of Garland, Texas and the City of Greenville, Texas (collectively, the
"Cities"), each in the capacity of a member city of the Texas Municipal Power Agency (the
"Agency"); and
WHEREAS, the Agency and each of the Cities, have entered into a Power Sales Contract
dated the 1 st day of September, 1976, as amended (the "Power Sales Contract"), under which the
Agency is obligated to sell electric energy to the Cities, and each City is unconditionally
obligated to pay to the Agency, without offset or counterclaim and without regard to whether
energy is delivered by the Agency to the respective City or Cities or whether or not any City or
Cities actually use energy from the Agency's generating facilities, the percentage of the Agency's
Annual System Costs (as defined in the Power Sales Contract), including the payment of the
Debt Service Requirements (as defined in the Power Sales Contract) which may from time to
time exist; and
WHEREAS, the Agency has adopted Resolution No. 2012-7-8 (the "Agency
Resolution") that sets forth options for the Cities to prepay all or a portion of the contractual
obligations of the Cities pertaining to the Debt Service Requirements component of the Agency's
rates and charges for the purchase of power in accordance with the Power Sales Contract (the
"Contractual Obligations"), which relate to the Agency's Revenue Refunding Bonds, Series 1993
(the "Series 1993 Bonds"); and
WHEREAS, the procedures set forth in the Agency Resolution permit each City to use
moneys derived from proceeds of a series of City debt issued to discharge all or a portion of its
Contractual Obligations (the "City Bond Proceeds") or from a funding source other than
proceeds of such City debt (the "City Available Funds") for the purpose of prepaying all ar a
portion of its Contractual Obligation; and
WHEREAS, the Agency Resolution provides for the Agency to establish uniform rates
and charges for the Cities and to allocate a prepayment credit with respect to such rates and
charges (the "Payrnent Credit") to any City in the arnount of the City Bond Proceeds or City
Available Funds that are deposited into an escrow account, plus interest earnings from the
deposit of such funds in the escrow account, which deposit is dedicated to paying the respective
City's Contractual Obligations pertaining to the Series 1993 Bonds; and
WHEREAS, in accordance with the Agency Resolution, the Payment Credit will be
calculated with respect to a portion of the City's power purchase payments; and
WHEREAS, this Prepayment Agreement is entered into for the purpose of establishing
the agreement of the Cities with respect to the Payment Credit.
NOW THEREFORE, in consideration of the foregoing, the mutual agreements herein
contained, and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, each Member City agrees as follows:
Section 1. Agreements of Cities. Each City acknowledges and agrees with respect to the
Agency Resolution and the transactions provided for therein, and without regard to whether a
City elects to use a prepayment option provided therein, as follows:
(a) That a City making a deposit of City Bond Proceeds or Available City Funds in
accordance with the Agency Resolution shall be entitled to a Payment Credit determined
by the Agency in the manner provided in the Agency Resolution.
(b) That the provision by the Agency to one or more Cities of a Payment Credit (whether
for the year in which the deposit is made by a City or in a subsequent year, in accordance
with the terms of the Agency Resolution) does not conflict with Section 7 of the Power
Sales Contract or any other provisions thereof that require the Agency to establish
uniform and non-discriminatory, fair and reasonable and adequate rates and charges for
the provision of power and energy to the Cities.
(c) That proceedings of the Agency with respect to the adoption of the Agency
Resolution by the Agency have been provided to the Cities, and each City will not contest
or challenge the right of the Agency to adopt or administer the Agency Resolution or
contest or challenge the adoption of the Agency Resolution as being in any way an
improper or unlawful act of the Agency in accordance with applicable laws pertaining to
the Agency and the Power Sales Contract.
Section 2. Severability. If any term or provision of this Prepayment Agreement is held to
be illegal, invalid or unenforceable, the legality, validity or enforceability of the remaining terms
or provisions of this Prepayment Agreement shall not be affected thereby, and in lieu of each
such illegal, invalid or unenforceable term or provision, there shall be added automatically to this
Prepayment Agreement a legal, valid or enforceable term or provision as similar as possible to
the term or provision declared illegal, invalid or unenforceable.
Section 3. Waiver. A party shall have the right to waive any requirement contained in
this Prepayment Agreement that is intended for the waiving party's benefit, but, except as
otherwise provided herein, such waiver shall be effective only if in writing executed by the party
for whose benefit such requirement is intended pursuant to an authorizing resolution adopted by
the governing body of the respective party. No waiver of any breach or violation of any term of
this Prepayment Agreement shall be deemed or construed to constitute a waiver of any other
breach or violation, whether concurrent or subsequent, and whether of the same or of a different
type of breach or violation.
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Section 4. Governing Law. This Prepayrnent Agreement and all of the transactions
contemplated herein shall be governed by and construed in accordance with the laws of the State
of Texas. The provisions and obligations of this Prepayment Agreement are performable in
Travis County, Texas such that exclusive venue for any action arising out of this Prepayrnent
Agreement shall be in Travis County, Texas.
Section 5. PaNagraph Headings; Const�uction. The paragraph headings contained in this
Prepayment Agreement are for convenience only and shall in no way enlarge or limit the scope
or meaning of the various and several paragraphs hereof. The parties have all participated in the
negotiation and preparation of this Prepayment Agreement, have obtained and considered the
advice of counsel in its preparation, and accordingly agree that this Prepayment Agreement shall
not be construed either more or less strongly against or for any party.
Section 6. Binding Effect. Except as limited herein, the terms and provisions of tlus
Prepayment Agreement shall be binding upon and inure to the benefit of the Cities and their
respective heirs, devisees, personal and legal representatives, successors and assigns.
Section 7. Gender. Within this Prepayment Agreement, words of any gender shall be
held and construed to include any other gender, and words in the singular number shall be held
and construed to include the plural, unless the context otherwise requires.
Section 8. Counterparts. This Prepayment Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which shall constitute but one
and the same instrurnent.
Section 9. Entire Prepayment Agreement. It is understood and agreed that this
Prepayment Agreement contains the entire agreement between and among the Cities and
supersedes any and all prior agreements, arrangements or understandings between or among the
Cities relating to the subject matter. No oral understandings, statements, promises or
inducements contrary to the terms of this Prepayment Agreement exist. This Prepayrnent
Agreement cannot be changed or terminated orally and no written modification of this
Prepayment Agreement shall be effective unless executed by each and all of the Cities pursuant
to an authorizing resolution adopted by the governing body of the respective party.
Section 10. Authority to Execute. Each party mutually represents and warrants to each
and all of the other Cities that the individual signing this Prepayment Agreement on its behalf
has complete and full authority to act on behalf and to fully bind that parly to the terms of this
Prepayment Agreement.
[Execution Pages Follow]
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EXECUTED on the dates indicated below but deemed to be effective as of the date this
Prepayment Agreement is signed by the last party to do so (the "Effective Date").
CITY OF BRYAN:
By:_
Name:
Title:
Date:
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CITY OF DENTON:
By:
Name: �o�.C�� . �AM R ���1�
Title: C�`(�I ��CN�A�E�-
Date: 1A,C-t t�15'� . �d 1`L.-
CITY OF GARLAND:
By:_
Name:
Title:
Date:
CITY OF GREENVILLE:
By:_
Name:
Title:
Date: