12-R-110 Termination of CIED FundRESOLUTION NO. 12-R-110
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING AN AGREEMENT INCIDENT TO
TERMINATION OF THE COMMUNITY INFRASTRUCTURE &
ECONOMIC DEVELOPMENT (CIED) FUND PROGRAM WITH CITY
PUBLIC SERVICE, AND OTHER MATTERS IN CONNECTION
THEREWITH
WHEREAS, the City staff of the City of Schertz (the~`City") has recommended that the
City enter into an Agreement Incident to Termination of the Community Infrastructure &
Economic Development (CIED) Fund Program (the "Agreement") with City Public Service
("CPS Energy"), relating to the termination of the CIED Fund Program and distribution to the
City of the monies in the CIED Fund;
WHEREAS, on January 30, 2012, the Board of Trustees for CPS Energy resolved to
terminate the CIED Fund; and
WHEREAS, CPS Energy and the City have engaged in discussions and have agreed on
the process outlined in the Agreement by which to distribute the City's unearmarked funds from
the CIED Fund to the City; and
WHEREAS, the City Council has determined that it is in the best interest of the City to
execute the Agreement attached hereto as Exhibit A.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Agreement with CPS Energy, in substantially the form set forth on xhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declazes that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
PASSED AND ADOPTED, this 19th day of November, 2012,
CIT SCHE EXAS
Mayor
AT'T'EST:
~~
--E;i Secretary
(CITY SEAL)
50556579.1
EXHIBIT A
AGREEMENT INCIDENT TO TERMINATION OF THE COMMUNITY
INFRASTRUCTURE & ECONOMIC DEVELOPMENT (CIED) FUND PROGRAM
50556579.1 A-1
AGREEMENT INCIDENT TO TERMINATION OF THE COMMUNITY
INFRASTRUCTURE & ECONOMIC DEVELOPMENT (LIED) FUND PROGRAM
This Agreement Incident to Termination of the Community Infrastructure & Economic
Development (CIED) Fund Program ("Agreement") is entered into by and between the City of
Schertz ("City") acting herein by its City Manager, John C. Kessel, under the direction, approval,
and authorization of the Mayor and City Council of the City; and City Public Service ("CPS
Energy") acting herein by Doyle N. Beneby, Chief Executive Officer, under the direction,
approval and authorization of the Board of Trustees of CPS Energy and is effective upon the last
date of execution of this Agreement by the City and CPS Energy ("Effective Date").
WHEREAS, the CPS Energy Community Infrastructure and Economic Development Fund
("CIED Fund") was established by the CPS Energy Board of Trustees ("Boazd"), by way of the
CIED Fund Policy ("Policy"), in order to benefit the community and improve the quality of life
of CPS Energy's customers through support of electric system improvements that have public
safety and public welfare benefits to customers of its systems, and other investments, consistent
with electric system objectives, that support CPS Energy's commitment to embrace emerging
energy sources from distributed renewable sources and promote energy efficiency, conservation
and environmental stewardship; and
WHEREAS, on January 30, 2012, the Boazd resolved to terminate the CIED Fund and directed
CPS Energy staff to enter into discussions with the affected political subdivisions for the
development of a lawful mechanism by which to distribute each political subdivision's
unearmazked funds from the CIED Fund; and
WHEREAS, the City is an affected political subdivision and thus, CPS Energy and the City have
engaged in discussions and have agreed on the process outlined in this Agreement by which to
accomplish the transferring of monies in the CIED Fund to the City; and
WHEREAS, CPS Energy and the City have entered into this Agreement in order to set forth the
terms and conditions related to the foregoing.
SECTION 1. CIED Fund Program Balance
The City's final CIED Fund balance in the CIED Fund is $264,330.26 ("CIED Fund Balance"),
of which $0 has been previously earmazked for projects meeting the requirements of the Policy;
therefore the disbursable amount is $264,330.26 ("Disbursable Amount").
SECTION 2. Disbursement and Use of the Disbursable Amount.
The City shall be entitled to receive the Disbursable Amount in the following way:
The City shall receive quarterly, on or about the fifteenth (ISa') day of the month following
completion of a calendaz quarter beginning after execution of this Agreement by both parties, an
amount equal to 25% of the total Disbursable Amount, until the Disbursable Amount reaches
zero dollazs, as reflected in more detail on Schedule A attached hereto and incorporated herein
for all purposes. The Disbursable Amount payments shall be made by wire transfer, or by any
such means mutually agreed upon by the parties, to the City's bank account, as specified by the
City, and in the same manner as the quarterly franchise fee payments aze currently paid to the
City by CPS Energy.
The City shall use its best commercial efforts to use the Disbursable Amouni funds in a manner
consistent with the purposes expressed in the Policy including but not limited to, energy
efficiency and conservation projects, overhead electric line conversions, renewable distribution
projects, upgraded streetlighting, and economic development involving new facility construction.
SECTION 3. RenortinP
Upon request by the City, CPS Energy shall provide the City with an accounting of the payments
made to the City and the balance of the remaining Disbursable Amount, if any.
SECTION 4. Severability
In case any provision in this Agreement or any application thereof shall be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining provisions and
applications shall not in any way be affected or impaired thereby.
SECTION 5. Construction
This Agreement reflects the combined efforts of the parties and their attorneys and shall not be
construed against any party on account of the prepazation hereof by such party or its attorneys.
The Section and subsection headings herein aze for convenience only and shall not affect the
construction or terms hereof.
SECTION 6. Limited Oblieations
The City acknowledges and agrees that, in accordance with applicable law, (a) the obligations of
CPS Energy under this Agreement are payable solely from and to the extent of revenues of CPS
Energy's gas and electric utility systems, (b) the obligations of CPS Energy hereunder shall
never constitute a pledge of the City of San Antonio's taxing powers or be payable from funds
raised or to be raised by taxation, and (c) recovery of any claims arising out of the failure of CPS
Energy to observe or perform any of duty or obligation imposed upon it hereby shall be limited
solely to the revenues of CPS Energy's gas and electric utility systems.
SECTION 7. Coordination of Benerls and Terms
If after execution of this Agreement, the method or timing for disbursement of the Disbursable
Amount described in Section 2 above is modified in another political subdivision's CIED Fund
termination agreement, the City and CPS Energy agree to enter into discussions regazding the
merit of amending this Agreement to reflect a revised Section 2 that is consistent with the other
political subdivision's agreement.
SECTION 8. Venue
This Agreement will be construed under the laws of the State of Texas without regard to choice-
of-law rules of any jurisdiction. Venue shall be in the State District Court of Bexaz County,
2
Texas with respect to any lawsuit arising out of or construing the terms and provisions of this
Agreement, and the parties agree to be subject to the jurisdiction of such court.
SECTION 9. Entire Agreement
This Agreement embodies the entire agreement of the parties in respect of the subject matter
hereof. There aze no promises, terms, conditions, or obligations of the parties in respect of the
subject matter hereof except those contained in this Agreement. This Agreement supersedes all
previous communications, representations, and agreements, either verbal or written, between or
among the parties in respect of the subject matter hereof. Each party acknowledges and
represents that no representation or opinion of fact or law was made by or on behalf of any other
party hereto to induce it, and it relied on no such representation or opinion in determining, to
enter into this Agreement.
SECTION 10. Bindine Etfect; Bene/iYs
Nothing in this Agreement, express or implied, shall give to any person or entity, other than the
parties hereto and their successors hereunder, any benefit or any legal or equitable right, remedy,
or claim under this Agreement, and it is not the intention of any party hereto to confer third-party
beneficiary rights upon any other person or entity, including, without limitation, any taxpayer or
customer thereof. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors.
SECTION 11. Notice
Unless otherwise specifically provided herein, any request, demand, authorization, direction,
notice, consent, waiver, or other document by or from any party hereto provided to be made,
given or furnished to, or filed with any other party hereto shall be sufficient for every purpose
hereunder if made, given, famished, or filed in writing to or with such party in writing mailed,
first-class postage prepaid, to and received by such party addressed to it at the address and to the
attention stated below receipt confirmed, or at such other address or attention or to such other
number furnished in writing to the other parties hereto by such party.
If to tke City: Ifto CPS Enerpv
John C. Kessel
City Manager
City of Schertz
1400 Schertz Pkwy.
Schertz, Texas 78 ] 54
Email: jkesselna.schertz.com
John Leal (MC 110905)
Sr. Mgr., Local Gov't Relations
CPS Energy
P. O. Box 1771
San Antonio, Texas 78296
i clealna,cosenerev. com
SECTION 12. Due Authorizations
Each party hereto acknowledges, has officially found, determined, declared, and represents to the
other party hereto that its governing body has duly authorized and approved the execution,
delivery, and performance of this Agreement, and that all acts and proceedings done by staff
3
consistent with and in furtherance of the intent of this Agreement aze ratified, approved and
validated.
SECTION 13. Couuternarts
This Agreement may be executed in any number of counterparts with the same effect as if all
signatory parties had signed the same document. All counterparts shall be construed together and
shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the
Effective Date.
CITY OF SCHERTZ
f4 "~/
sy:
CPS ENERGY
By:
JOHN C. KESSEL
City Manager
DOYLE BENEBY
President and Chief Executive Officer
4
C(~5
Community Infrastructure & Economic Development (LIED) Fund Program Termination
City of Schertz
Schedule A
Effective Date:
Disbursable Amount: $ 264,330.26
Approximate
Payment N % Payment Date
1 25 Nov. 15, 2012
2 25 Feb. 15, 2013
3 25 May 15, 2013
4 25 Aug. 15, 2013
Payment amount
$ 66,082.57
$ 66,082.57
$ 66,082.57
$ 66,082.55
Balance after payment
$ 198,247.69
$ 132,165.12
$ 66,082.55
$ 0.00
sossasos.~ A-1