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18-1382ORDINANCE NO. 18-1382 AN ORDINANCE OF THE CITY COUNCIL OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE A DECOMMISSIONING ESCROW AGREEMENT AMONG AND BETWEEN THE TEXAS MUNICIPAL POWER AGENCY, CITY OF BRYAN, TEXAS, THE CITY OF DENTON, TEXAS, THE CITY OF GARLAND, TEXA,S AND THE CITY OF GREENVILLE, TEXAS ("C I T I E S") REGARDING THE E S T A B L I S H M E N T O F E S C R O W FOR DECOMMISSIONING PUSUANT TO THE EXISTING JOINT OPEPERATING AGREEMENT BETWEEN THE CITIES AND TMPA; AND PROVIDING AN EFFECTIVE 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 cities, being the Cities of Bryan, Texas, Denton, Texas, Garland, Texas, and Greenville, Texas; and WHEREAS, the TMPA and the Cities have entered into a Joint Operating Agree- ment providing for the mutual rights and responsibilities ofthe parties as to the operations of the Agency, including asset management, decommissioning, environmental remediation, indemni- ties, and the winding up of affairs of the Agency upon dissolution, as necessary and appropriate consistent with Tex. Util. Code Chapter 163, Subchapter C-1.; and WHEREAS, the Joint Operating Agreement provides for the creation of a Decommis- sioning Escrow Agreement to pay the costs of decommissioning pursuant to the Decommission- ing Plan of TMPA.; and WHEREAS, it is appropriate for the CityofDenton to execute this "Decommissioning Escrow Agreement" between the Texas Municipal Power Agency, the City of Bryan, Texas, the City of Denton, Texas, the City of Garland, Texas, and the City of Greenville, Texas; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON ORDAINS: SE TION I. The recitals in the preamble are true and correct and are incorporated herewith by reference. SECT�ON 2. The City Manager, or his designee, is authorized to execute and deliver the "Decommissioning Escrow Agreement" Between Texas Municipal Power Agency, the City of Bryan, Texas, the City of Denton, Texas, the City of Garland, Texas and the City of Green- ville, Texas, a copy of which Agreement is attached as Exhibit "A," and which Agreement is incorporated by reference. SECTION 3. The City Manager, or his designee, is authorized to execute and deliver the Agreement and any and all other and further documents related to the said Agreement as are necessary to effectuate, finalize and deliver said Agreement. �ECTION 4. This ordinance shall be and become effective immediately upon and after its adoption and approval; provided however, that the Texas Municipal Power Agency, the City of Bryan, Texas, the City of Garland,Texas, and the City of Greenville, Texas liave eacl� approved said Agreement. "� b�� r�s�tz�� tc� ��r��r��v� �'�a� �r�S�r�r�� °u�� by � , , ,�,��::'� ��W�`��F.��.� �s�� and se- conded 1��r �"�" �"��' ��, �' �'d�°��_ , t�� ordinance was passed and approved by the followi�a� v��+� � W . s� � Chris Watts, Mayor: Gerard Hudspeth, District 1: Keely G. Briggs, District 2: Don Duff, District 3: John Ryan, District 4: Deb Armintor, At Large Place 5: Paul Meltzer, At Large Place 6: A��e, N�a � Abstain � ��° � PASSED AND APPROVED this the �� " day of ��.."�� "'��"��M�°�"��'��., 2018. ,�� ,� �W� �� '"°��-TF�.I� W "�""�"�� MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY � � BY* � '� �_ � �� , �..,� � Absent APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY � ��. � ��....._.._ � BY: ��°'�� 1 D ! � Y:�1]►1i►[lll.Yi1�� 1:�lf:7 ►�li�`►�i�i THIS DECOMMISSIONING ESCROW AGREEMENT (this "Agreement"}, dated as of August 6, 2018 (the "Effective ate"}, is made and entered inta between the Texas Municipal Pawer Agency ("T PA"), a municipal corporation and political subdivision of the State of Texas established pursuant to the provisians of Chapter 163 of the Texas Utilities Code, the City of Bryan, the City of Dentan, the City of Garland, and the City af Greenville, Texas each of which cities is a municipal corporation of the State of Texas and a home rule city (herein collectively "Cities" or "Participating Public Entities" or individually "City" or "Participating Public Entity"} and UMB Bank, N.A., a national banking assaciation organized and existing under the laws of the United States of America, as escrow agent (the "Escrow Agent"). I:��TilY�111�� . ' � . � - _ � _ •. . �- . 't . . - • . . � . - - - -• � , '� •r- . + � + -- - ' . �. I • r . � .,. . f' ,w• - ��- ,, � ' ' . (' ' � •' � • # w - # • � " ■ � � ' � " . ' � . ' , � � + , ', �. � . . ... !: ' •� ! �. �. � •. � #� � ` �• • "� �� • �.. #' "' !� � " . .. ��. � #� �. '. ♦ � ' � • . � *.. � '. ��. .: � � . • - . .. - •.. '. + * .., • _, .. � .. .. ' . ,.. ' ' •�. . * .,... • "..... _.. .. . •:. .. . � • r '.. � •' ; �. , �l �. - �. r- �..:�� •'�. � �.�.� .. �; - - ��..;. ..�....! . �•�`�� • ..�' � •�. ..�� ... ��. !'!.' �.:.:.�• " . � �..�.► .•'...." �. . ' �� ! �: �� ' � �.. *� • � �.. ., . ...... . • � � � • " � . ��. : .. • �� ♦ � . w�, ! � l. .� . �: :�. �. .�. • ' � 1 � # . ! � � " ' ! C. The Joint Operating Agreement provides far the creation of a Decommissioning Escrow Agreement to pay the costs of decommissioning pursuant to the Decommissioning Plan. In consideration af the foregoing Recitals, the mutual covenants set farth in this Agreement and other good and valuable consideratian, the receipt and sufficiency of which is hereby acknowledged, the Cities, TMPA and the Escrow Agent agree as follows. 1.1 De�ned Terms Capitalized terms not otherwise defined in this Agreement shall have the meanings given to them as follows: "Agree ent" shall mean this Decommissioning Escrow Agreement and the schedule referred to herein and attached hereto. "Citres" shall have the meaning given such term in the Preamble to this Agreement. "Co pletian Notice" shall have the meaning given such term in Section 3.2.1. � • � � �� . • . -, � ' . - � ' • •- -r � r- •- • � -• - �- # � , . "Decommissianing Amount" shall mean the amount specified in Section 5.5 of the Joint Operating Agreement. " eco issioning Co pletion" shall have the meaning given such term in SectYan 3.2.1. "Decornmissioning Costs" shall mean all necessary and reasonable costs incurred by TMPA in decommissioning or removing the Decommissioned Facilities, including all associated environmental remediation, net of any salvage value, in accardance with Section 5.5.3 of the Joint Operating Agreement and the Decommissioning Plan and Gaod Utility Practice, together with the costs of any insurance, indemnities (other than the Indemnities under Section 6.3 of the Jaint Operating Agreement) or associated retention for environmental liabilities incurred after the cessation of the Generation Business, as provided in Section 6.1(e) af the Joint Operating Agreement. 1 • � � � ' , . - - � - �- � � . '' . �- r-• - • � � !�� . . ., "Decommissioning Date" shall mean the date that Decommissioning of the Facilities � " eco issioning Co pletion" shall have the meaning given such term in Section 3.2.1. " eco issioning ate Notice" shall have the meaning given such term in Section 3.1.1. " ee ed eco issioning ate" shall have the meaning given that term in Section � " isposition EvenY' shall mean the sale ar transfer by TMPA of the Facilities identified in the Decommissioning Plan to a third party. 46 ispute Period" shall have the meaning given such term in Section 3.1.2(ii). "Disputed Decommissioning Costs" shall have the meaning given such term in Section 3.1.2(ii). "Effective ate" shall have the meaning given such term in the Preamble ta this Agreement. "Escrow Account" shall have the meaning given such term in Section 2.2. "Escraw AgenY' shall have ihe meaning given such term in the Preamble to this Agreement. "Facilities" shall mean the facilities identified in the Decommissioning Plan. 0 66Fina1 rder" shall have the meaning given such term in Section 3.1.2(iv). 66Goad Utility Practice" means any of the practices, methods, and acts engaged in or appraved by a significant partion of the electric industry in the State af Texas during the relevant time periad, or any of the practices, methods, and acts that, in the exercise of reasanable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a commercially reasanable cost consistent with gaod business practices, reliability, safety, and expedition. Good utility practice is not intended to be limited to the optimum practice, method, or act, to the exclusion af all others, but rather is intended to include acceptable industry practices, methods, and acts generally accepted in the region. "Governmental Authority" means any federal, state or local governmental entity, authority or agency, court, tribunal, regulatory commission or other body, whether legislative, judicial or executive (or a cambination or permuiation thereo�. "Joint Notice" shall have the meaning given such term in Section 3.1.2(iv). 66Joint perating Agree ent" shall have the meaning given such term in the Recitals to this Agreement. `<Laws" means any and all laws (including all statutory enactments and cammon law), ordinances, constitutions, regulations, treaties, rules, codes, standards, requirements, policies, guidelines, protocols, judgments, awards, decisions, directives, consent decrees, injunctions (whether temporary, preliminary ar permanent), rulings, writs or orders adopted, enacted, implemented, promulgated, issued, entered or deemed applicable by ar under the authority of any Governmental Authority and any interpretatians thereaf by any Governmental Authority. "Party" means any of TMPA, the Cities, the Participating Public Entities, or the Escrow Agent and "Parties" means the Cities, the Participating Public Entities, TMPA and the Escrow Agent, collectively. "Participating Public Entity" shall mean each City, unless and until such City is removed from the Agency under Section 163.076 of the Texas Utilities Code, and any public entity added to the Agency as provided in Section 163.076. If a public entity is removed from or added to the Agency, notice shall be given to the Escrow Agent and this Agreement shall be amended in accordance with Section 5.1 hereof to reflect such change; provided that no Party shall unreasanably withhold its consent to such amendment. At the time of the execution of this Agreement, the Participating Public Entities are the Cities of Bryan, Denton, Garland and Greenville. "Person" means any individual, corporation, partnership, limited liability company, association, joint stock campany, trust, unincorporated organization, joint venture, Home Rule Municipal Corporation, Governmental Authority or other entity with legal constitution under applicable Law. "PUCT" shall mean the Public Utility Commission of Texas or any successor thereto. "T PA" shall have the meaning given such term in the Preamble to this Agreement. �3 66Sub ission Notice" shall have the meaning given such term in Section 3.1.2(i). "Sub itted eco issioning Costs" shall have the meaning given such term in Section 3.1.2(i). 1.2 Canstruction. All article, section, subsection, paragraph, clause, schedule and exhibit references herein are to this Agreement unless otherwise specified. All schedules attached to this Agreement canstitute a part of this Agreement and are incorporated herein. Unless the context of this Agreement clearly requires otherwise, (i) the singular shall include the plural and the plural shall include the singular wherever and as often as may be appropriate; (ii) the words "includes" or "including" shall mean "including without limitation;" and (iii) the words "hereof," "herein," "hereunder," and similar terms in this Agreement shall refer to this Agreement as a whole and not any particular sectian or article in which such words appear. .� '1 � 2.1 Appointment of Escraw Agent. The Parties hereby jointly appaint the Escrow Agent to act as escrow agent in accordance with the express terms and conditions set forth herein, and the Escrow Agent hereby accepts such appointment. 2.2 Establish ent of Escraw Account. The Escrow Agent hereby agrees to establish and maintain an account (the 66Escrow Account") to hald all monies deposited with the Escrow Agent pursuant ta ihis Agreement and all interest, dividends and other distributions and payments earned thereon or received by the Escrow Agent with respect thereto from time to time. 1•�► � � � � 2.3.1 TMPA shall pay to the Escrow Agent for deposit into the Escrow Accaunt the amounts identified in Section(s} 5.5 of the Joint Operating Agreement. 2.3.2 TMPA shall pay any amounts required by Section 2.3.1 to the Escrow Agent via wire transfer of immediately available funds to an account designated in writing by the Escrow Agent no less than five (5} days after those funds are: (i) received from the sale of Mining Assets or (ii) as those funds are received from the sale or operation of Transmission or the sale or salvage of Generation Assets and required ta be placed in the Decommissianing Reserve Account, as described in Sections 3.2.3(3}, 4.2, 4.6(2) and 5.4(3) of the Joint Operating Agreement. 2.4 Invest ent of A aunts eld in Escrow Account. All amounts held in the Escraw Account from time to time shall be invested and re-invested as directed from time to time by TMPA or, if TMPA has nat made any directian, in the Morgan Stanley Government Money Market Fund No. 8352 funds provided the Escrow Agent may conclusively rely upon any such written direction as to the suitability and legality of the directed investments. TMPA shall direct such investments so that all investments are consistent with TMPA's Investment Policy adopted under the Public Funds Investment Act. The Escrow Agent � shall liquidate any investments in the Escrow Account as necessary ta provide funds in arder to make any payments required by this Agreement. Incame, if any, resulting from the investment of the funds in the Escrow Account shall be retained by the Escrow Agent and shall be considered, for all purposes of this Agreement, to be part of the funds in the Escrow Accaunt. Annually, and quarterly, the Escrow Agent shall repart to TMPA and the Participating Public Entities, the balances in the Account, the investments held by the Account, any claims against the account for the period, and all interest, dividends, income and/or lasses associated with the Account. � R / .� .. ::. � �� •. �; 1 I �• 1 1, '; 1 3.1.1 TMPA shall give written notice ta the Participating Public Entities and the Escrow Agent of the occurrence of the Decammissioning Date (a " ecommissioning ate Notice") at least sixty (60) days prior ta the Decammissioning Date. If the Participating Pubiic Entities believe the Decammissianing Date has occurred and that TMPA has not timely given a Decommissioning Date Notice, the Participating Public Entities may give a Decommissioning Date Notice to the Escrow Agent and TMPA. The Decommissianing Date shall be deemed to have been established far purposes af this Agreement if TMPA has given a Decammissioning Date Notice ar the Participating Public Entities have given a Decammissioning Date Notice designating such Decommissioning Date. 3.1.2 From and after the deemed occurrence of the Decommissioning Date pursuant to Section 3.1.1 (the 66 eemed ecammissioning ate"), the Escrow Agent shall distribute amounts held in the Escrow Account ta or an behalf TMPA for payment of Decammissioning Casts in accordance with the following pracedures: (i) From and after the Deemed Decommissioning Date as set forth in the Decommissioning Date Natice, TMPA may fram time to time submit one or more written notices (eachy a 66Submission Notice") to the Escrow Agent and Participating Public Entities. The Submission Notice shall specify the amaunt of Decammissioning Costs for which TMPA is seeking reimbursement or payment (665ubmitted ecam issioning Casts") and shall provide each af the Participating Public Entities with reasonable documentation supporting the Submitted Decammissioning Costs (provided ihe Escraw Agent shall have no obligation to review any such supporting documentation if received); (11� The Participating Public Entities may dispute any Submitted Decommissioning Costs by giving notice of such dispute to the Escraw Agent and TMPA within thirty (30) days after the Escrow Agent's receipt of a Submission Natice with respect to such Submiited Decommissioning Costs (the 6cDispute Period") specifying the amount of such Submitted � Decommissianing Casts being disputed by the party (the 6`Disputed DCCOl11YTIISSIOIlII�Ig COSLS99\y 1 (iii) Following the Dispute Period, and na later than iifteen (15) days after the end of the Dispute Period, the Escrow Agent shall pay to TMPA or at TMPA's direction, the Submitted Decommissianing Costs that are not Disputed Decammissioning Costs to the extent that amounts are then available in the Escrow Accaunt; and (iv) The Escrow Agent shall nat distribute the Disputed Decommissioning Casts until the Escrow Agent receives (a) a final nan-appealable award of an Arbitrator or a final non-appealable order of a caurt of campetent jurisdiction (a `6Fina1 Order"), along with a written certification from the party delivering such decision or order that it is final, binding and conclusive upon TMPA and the Participating Public Entities or (b) a writing signed by both the Participating Public Entities and TMPA (a 66Joint NOLICEY.99), in each case specifying the portion, if any, of the Disputed Decommissioning Costs to which TMPA is entitled, whereupon the Escrow Agent shall distribute to TMPA or at TMPA's direction the amount af Disputed Decommissioning Costs to which it is entitled pursuant to the Final Order or Joint Notice and the remaining Disputed Decommissioning Costs which are the subject of such Final Order ar Joint Notice shall cease ta be Disputed Decommissioning Costs with the same effect as if such Disputed Decommissioning Costs had never been Submitted Decommissioning Costs. 1 � • • � 1 • � � � � . � 3.2.1 TMPA shall give written notice to the Participating Public Entities and the Escraw Agent of the occurrence of the completian of the decommissianing and removal of all of the Decammissioned Facilities (a 66COIYIpICLIOII NOLZCe99) within sixty (60) days after the completion of the decommissioning and removal of the Decommissioned Facilities (the 66Decornmissioning Completion"). If the Participating Public Entities believe the Decommissioning Completian has occurred and that TMPA has not timely given a Completion Notice, the Participating Public Entities may give a Completion Notice to the Escrow Agent and TMPA. The Decommissioning Campletion shall be deemed to have occurred far purposes of this Agreement if TMPA has given a Completion Notice or the Participating Public Entities have given a Completion Notice and TMPA has not given written notice to the Escrow Agent objecting to the Participating Public Entities' Completion Notice within twenty (20) days after the Escrow Agent's receipt of the Completion Notice. 3.2.2 Within fifteen (15) days after receiving a Completion Natice from TMPA, or the deemed occurrence of the Decommissioning Completion pursuant to Section 3.2.1, the Escrow Agent shall distribute to the Participating Public Entities all remaining amounts held in the Escrow Account in accordance with instructions signed by all 0 Participating Public Entities (the 66DCCOIYYIYIISSIOIIIIlg COIYI�IICLIOII IIISLI�UCLIOIIS99) , minus the then autstanding amount of Disputed Decommissianing Casts that have nat been distributed to or at the direction of TMPA. Upon receipt by the Escrow Agent after the Deemed Completion Date of a Final Order or Joint Notice specifying the portian, if any, af the Disputed Decammissianing Casts ta which TMPA is entitled, the Escrow Agent shall distribute to or at the direction of TMPA the amaunt of Disputed Decammissioning Costs to which it is entitled pursuant to the Final Order or Joint Order. Any Final Order shall be accompanied by a written certification from the party delivering such decision or order that it is final, binding and conclusive upon TMPA and the Participating Public Entities. The Escraw Agent shall distribute ta the Participating Public Entities in accordance with the Decammissioning Completion Instructions the remaining Disputed Decommissianing Costs which are the subject of such Final Order or Joint Natice. 3.3 Disbursement upon Disposition Event, 3.3.1 TMPA shall give written notice to the Participating Public Entities and the Escrow Agent of the occurrence of a Disposition Event (a "Disposition Notice") within sixty (60) days after the occurrence of a Disposition Event. If the Participating Public Entities believe that a Dispositian Event has occurred and that TMPA has nat timely given a Dispositian Notice, the Participating Public Entities may give a Dispasitian Notice to the Escrow Agent and TMPA. A Disposition Notice shall be deemed ta have occurred for purposes of this Agreement if (i) TMPA has given a Disposition Notice, (ii) the Participating Public Entities have given a Disposition Notice and TMPA has not given notice to the Escraw Agent objecting to the Participating Public Entities' Disposition Natice within twenty (20) days after the Escrow Agent's receipt of the Disposition Notice, or (iii) a Final Order holds that a Disposition Event has occurred along with a written certification fram the party delivering such decision or order that it is final, binding and canclusive upon TMPA and the Participating Public Entities. 3.3.2 Within fifteen (15) days after the deemed occurrence of a Disposition Event, the Escrow Agent shall distribute to the Participating Public Entities at their written direction, all remaining amounts held in the Escrow Account. 3.4 Disbursement rn Accordance with Joint Notice. In additian to the disbursements permitted by Sections 3.1, 3.2 and 3.3, the Escrow Agent shall distribute all or a portian of the amount then held in the Escrow Account in accordance with a Joint Notice received by the Escrow Agent. 3.5 Payment of Disbursements. The Escraw Agent shall make all payments ta the Cities or TMPA via wire transfer of immediately available funds to an account or accounts designated in writing by the Cities or TMPA, respectively, no less than five (5) days prior to the due date of such payment; provided, if the Participating Public Entities or TMPA have not timely provided such account designation, the Escrow Agent shall make such payment as soon as practicable after receiving such account designation (but not earlier than the original due date of such payment). 7 3.6 isbursements only fram Escraw Account. Notwithstanding anything in this Agreement ta the cantrary, the Escrow Agent shall be only required ta make, from time-ta-time, disbursements of the Escrow Accaunt according to the terms set forth herein ta the extent of the Escrow Account. 3.7 Disputes. Any dispute that may arise under this Agreement with respect to disbursement of all ar a partion of the amounts in the Escrow Account, the duties af the Escrow Agent hereunder ar any ather questions arising under this Agreement, shall be settled either by a Joint Notice or a Final Order along with a written certification from the party delivering such decisian or arder that it is final, binding and conclusive upon TMPA and the Participating Public Entities. The Escrow Ageni shall be under na duty to institute or defend any proceeding relating to any such dispute and nane af the casts and expenses of any such proceeding shall be borne by the Escrow Agent, but if any such costs are incurred, they shall be paid from readily available funds in the Escrow Accaunt. Priar to the settlement of any dispute as pravided in this section, the Escrow Agent shall retain in its possession, without liability to anyane, any portion of the amaunts in the Escrow Account that is the subject af such dispute. . • ,3, '1 4.1 Duties of the Escrow Agent. The Escrow Agent shall not have any duties or responsibilities under this Agreement oiher than those specifically set forth herein and shall act only in accardance with the provisions hereaf. The permissive righi ar power to take any action shall nat be construed as a duty to take actian under any circumstances. Withaut limiting the generality af the faregoing, the Escrow Agent shall not have any duty or responsibility: (i} ta enfarce or cause to be enforced any of the terms and canditians af any other agreements of TMPA or the Participating Public Entities other than this Agreement; (ii) to verify the accuracy or sufficiency of any natice or ather document received by it in cannection with this Agreement; or (iii) ta risk its awn funds in the administration of the Escrow Account. The Escrow Agent may rely upan, and shall be protected in acting or refraining from acting upan, any written notice, instruction or requesi furnished to it hereunder and reasonably believed by it to be genuine and to have been signed or presented by the proper Party or Parties. The Escrow Agent shall not be required to take notice of any dispute, objectian or other fact or event unless specifically natified in writing thereaf in the manner provided in this Agreement. Annually, and quarterly, the Escrow Agent shall report ta TMPA and the Participating Pubic Entities, the balances in the Account, the investments held by the Account, any claims against the accaunt far the period, and all interest, dividends, income and/or losses associated with the Account. 4.2 Liabilftfes af the Escrow Agent. The Escrow Agent shall not be liable to TMPA, the Participating Public Entities or any other person ar entity for any loss, liability or expense resulting fram ar arising out af any act or failure to act of the Escrow Agent in connection with this Agreement, other than a loss, liability or expense due to the grass negligence or wiliful miscanduct on the part af the Escrow Agent. Without limiting the foregaing, the Escrow Agent shall not be liable for any error af judgment by it in goad faith and reasanably believed by it to be authorized ar within the rights or powers conferred upon it by this Agreement. The Escrow Agent may consult with caunsel of its own choice whenever the Escraw Agent deems appropriate, and shall have full and complete authorization and pratection for any action reasonably taken or suffered by it hereunder in goad faith in accordance with the apinion of such counsel. In the event that the Escrow Agent shall become involved in any arbitration ar litigation relating to the Escrawed Funds, the Escrow Agent is autharized ta camply with any final and non-appealable decision reached through such arbitration or litigation. 4.3 Indemnification of the Escrow Agent. The Participating Public Entities and TMPA hereby agree to indemnify the Escrow Agent and hold it harmless from and against any and all claims, liabilities, damages, costs, penalties, losses, actions, suits ar proceedings at law or in equity, or any other expenses, fees or charges of any character ar nature, which the Escrow Agent may incur or with which it may be threatened, directly or indirectly, arising fram or in any way cannected with this Agreement or which may result from the Escrow Agent's following af instructions fram the Participating Public Entities or TMPA in accordance with this Agreement, and in connection therewith, ta indemnify the Escraw Agent against any and all expenses, including reasanable attarneys' fees and the cost of defending any actian, suit or praceeding ar resisting any claim, whether or not litigation is instituted, but nothing herein shall be construed to abligate TMPA or the Participating Public Entities to sa indemnify the Escraw Agent to the extent that it is determined that the Escrow Agent has acted in a grossly negligent manner or with willful misconduct. The provisions af this Sectian 4.3 shall survive the termination of this Agreement. 4.4 Resignation of the Escrow Agent. The Escrow Agent may resign at any time by giving not less than thirty (30) days written natice of such resignation ta TMPA and the Participating Public Entities. Thereafter, the Escrow Agent shall have no further obligation hereunder except to hold the Escraw Accaunt as depasitary and to continue to pay the interest or ather amounts thereon as pravided herein. In such event the Escrow Agent shall nat take any action until TMPA and the Participating Public Entities have jaintly appainted a successor escrow agent. Upon receipt of written instructians ta such effect, the resigning Escraw Agent shall promptly deliver all amounts in the Escrow Accaunt ta such successor escrow agent and shall thereafter have no further abligations hereunder. 4.5 Appointment of Successor Escrow Agent, TMPA and the Participating Public Entities tagether may terminate the appointment of the Escrow Agent hereunder by giving a jaint written notice specifying the date upon which such termination shall take effect. In the event of such terminatian, TMPA and the Participating Public Entities shall within thirty (30) days of such natice jaintly appoint a successar escrow agent, and the Escraw Agent shall deliver the amounts in the Escrow Accaunt to such successor escrow agent. 4.6 Fees and Expenses of the Escrow Agent. Escrow Agent shall be entitled to fees and expenses for its regular services as Escrow Agent as set farth in Exhibit A. Additionally, Escraw Agent is entitled to fees far extraordinary services and reimbursement af any out of packet and extraardinary costs and expenses, including, but nat limited to, attarneys' fees. The fees as set forth an Exhibit A to this Agreement far the services to be rendered G] by the Escrow Agent hereunder shall be satisiied from amounts held in the Escrow Account� provided to the extent the amounts in the Escrow Account are insufficient to pay all fees and expenses of the Escrow Agent, TMPA shall be responsible for all remaining fees and expenses of the Escrow Agent. . . ;� � � ,; . ,, � � ,, . 4.7.1 The Escrow Agent shall not be required to give any bond or surety or report ta any court despite any statute, custom or rule ta the contrary. 4.7.2 The Escrow Agent may execute any of the duties under this Agreement by or through agents or receivers. 4.7.3 The Escrow Agent shall not be required to institute legal proceedings of any kind. 4.7.4 The Escrow Agent makes no representation beyond its due authorizatian and executian of this Agreement. 4.7.5 The Escrow Agent is under no obligation to disburse amounts held in the Escrow Account upon the instructions of any Gavernmental Authority (other than a court of competent jurisdiction}. 4.7.6 The Escrow Agent's obligations with respect to the Escrow Account and amaunts held therein are gaverned solely by this Agreement. 5.1 Termination; Waiver and Amendment. This Agreement shall terminate (i) upan the written agreement of TMPA and the Participating Public Entities, ar (ii) automatically upon the distribution of all amounts in the Escrow Account following the Decammissioning Completion, or a Disposiiion Event; provided, Sections 4.2 and 4.3 shall survive the termination of this Agreement. Any provision of this Agreement may be waived only in writing at any time by the Party that is entitled ta the beneiits thereof. This Agreement may not be amended or supplemented at any time, except by an �nstrument in writing signed on behalf of each Party hereto. The waiver by any Party hereto of any breach of a provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach. 5.2 Assign ent. This Agreement shall not be assignable, whether by operation of law or otherwise, by any Party without the prior written consent af the Participating Public Entities and TMPA, and any purported assignment in violatian of this provision shall be void ab initio. 5.3 Notices. All notices, requests, demands, claims and other communications that are required to be or may be given under this Agreement must be in writing and shall be deemed to have been duly given when received if (i} delivered in person or by courier; (ii) sent by telecopy or facsimile transmission; (iii) sent by recognized overnight delivery � service, or (iv) mailed, by registered or certified mail, postage prepaid return receipt requested, to the intended recipient at following addresses: if to the Participating Public Entities: • : 11 - � - . . - •1 + , . , • � �� * ,�- City of Greenville 2821 Washington St. Greenville, Texas 75401 903-457-3116 Attention: City Manager �. • .111 �- ". - ; � �� .- City of Denton 215 E. McKinney St. Denton, Texas 76201-4229 940-349-8307 Attention: City Manager , .• 11 , . • - , 1' 1 • • • 1 !11 . # ,.- ' - . •. ''w _ . , _ � . �. . . �_ * ; ' • s : . � ,.- if to the Escrow Agent: : :. � 11 5910 N. Central Expressway Suite 1900 Dallas, TX 75206 Attn: Israel Luga Fax: (214) 389-5949 or ta such other address as any Party shall have furnished to the ather by natice given in accordance with this Sectian 5.3. Such natices shall be effective upon actual receipt at the addresses above. Natices required to be given by the Participating Public Entities shall be effective upan receipt of either (i) a single notice signed by the directar of the utility of each Participating Public Entity or (ii) separate notices signed by the directar of the utility of each Participating Public Entity. 5.4 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, excluding any conflict af law rules that may direct the application af the laws af another jurisdiciion. The exclusive venue far the adjudication of any dispute ar proceeding arising out of this Agreement or the perfarmance hereof shall be the caurts located in McLennan Caunty, Texas, and the Parties hereta consent to and hereby submit ta the jurisdiction of any court located in McLennan Caunty, Texas. 5.5 Severability. If any term, pravision, covenant ar restriction of this Agreement is held by a court of campetent jurisdictian to be invalid, void or unenfarceable, the remainder af the terms, pravisions, cavenants and restrictions of this Agreement shall cantinue in full farce and effect and shall in no way be affected, impaired or invalidated unless such an interpretation would materially alter the rights and privileges of any party or materially alter the terms af the transactians caniemplated hereby. 5.6 Caunterparts. This Agreement may be executed in caunterparts, each of which shall be an original, but all af which tagether shall constitute ane and the same agreement. Copies, telecopies, facsimiles, electronic files and other reproductions of original executed dacuments shall be deemed ta be authentic and valid counterparts of such ariginal dacuments for all purposes, including the filing af any claim, action or suit in the appropriate caurt of law. The parties hereto agree that the transactians described herein may be canducted and related documents may be stared by electronic means. 5.7 No Third Party eneficiaries. Neither this Agreement nor any dacument delivered in connection with this Agreement confers upan any Persan not a Party any rights or remedies hereunder. 5.8 Entire Agreement. This Agreement constitutes the entire agreement and supersedes all other priar agreements and understandings, both aral and written, among the Parties with respect to the subject matter hereaf. No representation, pramise, inducement or statement of intentian has been made by any Party which is nat embodied in or superseded by this Agreement, and no Party shall be baund by ar liable far any alleged representation, pramise, inducement on statement af intention not so set forth. 12 5.9 Joini Effart. The Parties have participated jointly in the negatiatian and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and na presumption or burden of proaf shall arise favoring ar disfavaring any Party by virtue of the authorship of any provisions of this Agreement. 5.10 Taxes and egulatary Compliance. TMPA shall be treated as the owner of the funds in the Escrow Accaunt for federal and state income tax purposes and will report all income, if any, that is earned on, ar derived fram, the funds in the Escrow Account as its income, in such praportians, in the taxable year ar years in which such income is praperly includible and pay any taxes attributable there. Upon request, TMPA and Participating Public Entities agree to provide the Escrow Agent campleted Forms W-9 (or Farms W-8, in the case of non-U.S. persons} and other forms and dacuments that the Escraw Agent may reasonably request (callectively, "Tax Reporting Documentation") at the time of execution of this Agreement and any information reasonably requested by the Escrow Agent to comply with the USA Patriot Act of 2001, as amended from time to time and the Bank Secrecy Act, as amended fram time to time. The Parties hereto understand that if such Tax Reporting Documentatian is not sa certified to the Escraw Agent, the Escrow Agent may be required by the Internal Revenue Code, as it may be amended from time to time, to withhald a partian of any interest or ather income earned on the investment of monies or other praperty held by the Escrow Agent pursuant to this Escrow Agreement. 5.11 Israel oycott. Pursuant to Section 2270.002, Texas Gavernment Code, the Escrow Agent hereby represents that neither it nor or any wholly owned subsidiary, majority-owned subsidiary, parent company ar affiliate af the Escraw Agent boycotts Israel. The Escrow Agent agrees that neither it nar or any whally owned subsidiary, majarity-awned subsidiary, parent company or affiliate of the Bank will boycott Israel during the term of this Agreement. IN WITNESS W ERE F, each af the Parties has caused this Agreement ta be executed on its behalf by its officer thereunto duly autharized, all as of the Effective Date. BY: _ Name: Title: Date; Attest: Approved as to form: Counsel for Texas Municipal Power Agency 13 C'1-l�ti' Ul� !3!<i'e1,�, 'I'L:\i1S 13�: N,inr��: 'I'i�f�: I),it�: rlttest; :\pprn�•cci ati tn liirm� (��tittnscl li�r Ihc ('it� ul� 13r��an. �I'cxas ('I"I�1' OI� ��,�, I �"�.n 1 N '� �, . wn� . f3�d �^ � " � � , M �` � �„� �� „�. �, .. .��w �� \amr° � �� " ��'��''� � �� .� � � �� I'illc: �� .� �'r�� -4 a � �� `,?�`� � G�� '�� .. U,itr: �°�_� :�ttcst;� ,��^^� � �1��.� �� ns lc� C'��unxll fiir thl ('it)� �rl� I)ri�tun. 'I rxus 1� By' — Name: Title� Date: Attest: CITY OF GREENVILLE, TEXAS By� --- Name: Title: Date: Attest: GEUS, acting an behalf of the City of Greenville pursuant ta its Charter : Title: Chair af the Board of Trustees of the Electric Utility Boaxd � Attest: � i i � � f a �� • i Title: � � Acceptance Fee: $500 Annual Escraw Account Setup/Administration Fee: $500 Far ardinary administrative services by Escraw Agent — includes daily routine accaunt management; cash transactian pracessing (including wire and check processing); disbursement of funds in accordance with the agreement; and online access to trust account statements. This fee is payable in advance, with the iirst installment due at the time of Escrow Agreement funding/execution. Charges for perfarming extraardinary or other services not cantemplated at the time af the execution of the transaction or nat specifically covered elsewhere in this schedule will be determined by appraisal in the amounts commensurate with the service provided. Services not included in this Fee Schedule, but deemed necessary ar desirable by you, may be subject ta additional charges based on a mutually agreed upon fee schedule. Our proposal is subject in all aspects ta review and acceptance af the final financing documents which sets forth aur duties and responsibilities. 18