R-06-06-08-10E2 - 6/8/2006RESOLUTION NO. R -06-06-08-10E2
WHEREAS, Chapter 791 of the Texas Government Code, V.T.C.A.,
authorizes local governments and agencies of the state to enter into
agreements with one another to perform governmental functions and
services, and
WHEREAS, the City of Round Rock wishes to enter into an
Interlocal Agreement with the City of Georgetown for the use of public
rights of way to deliver electric services, Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City said Interlocal Agreement, a copy of same being
attached hereto as Exhibit "A" and incorporated herein for all
purposes.
The City Council hereby finds and declares that written notice of
the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to the
public as required by law at all times during which this Resolution and
the subject matter hereof were discussed, considered and formally acted
upon, all as required by the Open Meetings Act, Chapter 551, Texas
Government Code, as amended.
RESOLVED this 8th day of June, 2006.
ATTEST
NY 1VWELL, Mayor
City of Round Rock, Texas
e- KOT —
CHRISTINE R. MARTINEZ, City Secretlyy
@PFGeskt3p\::0DMA/WORLDOX/0:/WDC:(/RESOLUTI/R60EOPE2.WPD/rmc
INTERLOCAL AGREEMENT
THIS INTERLOCAL AGREEMENT is made and entered into effective this day of
, 2006, by and between the CITY OF ROUND ROCK, a Texas home rule municipal
corporation ("Round Rock") and CITY OF GEORGETOWN, a Texas home -rule municipal
corporation ("Georgetown"), for purposes of describing the use by Georgetown of the public
rights-of-way of Round Rock for the distribution of electric power. Round Rock and
Georgetown are referred to collectively herein as the "Parties," or individually as a "Party."
WITNESSETH:
WHEREAS, V.T.C.A., Government Code, Chapter 791, the Texas Interlocal Cooperation
Act, provides that any one or more local governments may contract with each other for
governmental functions and services in areas such as streets, roads, and drainage, public health
and welfare; and relating to other governmental functions in which the contracting parties are
mutually interested in order to provide a governmental function or service that each party to the
contract is authorized to perform individually.
WHEREAS, Section 791.001 of the Government Code further provides that the Parties
are authorized to contract or agree to perform governmental functions and services to increase
the efficiency and effectiveness of their respective local governments.
WHEREAS, Texas Utility Code § 33.008(a) provides that, "a municipality may impose
on [a] ... municipally owned utility ... that provides distribution service within the municipality
a reasonable charge as specified in [§ 33.008] Subsection (b) for the use of a municipal street,
alley, or public way to deliver electricity to a retail customer."
WHEREAS, Georgetown owns and operates an electric utility and hold Certificate of
Convenience and Necessity No. allowing it to provide retail electric utility
services in an area that includes a land located within the corporate limits of Round Rock.
WHEREAS, Georgetown wishes to use Round Rock's streets, alleys, and public ways to
deliver electricity to retail customers located both within Georgetown's certificated area and the
corporate limits of Round Rock.
EXHIBIT "A"
WHEREAS, Round Rock wishes to grant Georgetown the right to use its streets, alleys,
and public ways to deliver electricity to retail customers located both within Georgetown's
certificated area and Round Rock's corporate limits for a reasonable charge.
WHEREAS, Round Rock finds that the charge provided in this Agreement is reasonable
and comparable to fees charged to other providers.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the undersigned parties agree as follows:
Section 1 DEFINITIONS.
"Agreement" shall mean this Agreement and all rights and obligations established herein or as
amended.
"Georgetown" shall mean the City of Georgetown, Texas, a home rule municipal corporation, as
owner of a public electric utility.
"kWh Charge" as described in Section 5.1.
"Public Rights -of -Way" shall mean streets, avenues, easements (other than private easements
obtained by Georgetown), rights -of -ways, alleys and highways of Round Rock and beneath the
surface thereof as they may now or hereafter may exist and as defined herein, but such does not
include bridges or other infrastructure owned by Round Rock such as water, sewer, electric,
telecommunication and facilities and any conduit system owned, operated or controlled by
Round Rock in or on the Public Rights -of -Way.
"Round Rock" shall mean the City of Round Rock, Texas, a home rule municipal corporation
whose corporate limits are as constituted on the effective date of this Agreement or as may
hereinafter be constituted.
"System" shall mean all poles, pole lines, towers, distribution lines, wires, guys, cables, conduits
and other desirable instrumentalities and appurtenances necessary for the operation
Georgetown's electric distribution business.
Section 2 GRANT OF RIGHT TO USE MUNICIPAL STREETS, ALLEYS OR PUBLIC
WAYS TO DELIVER ELECTRICITY TO RETAIL CUSTOMERS.
Round Rock, subject to the terms, conditions and provisions of this Agreement, does hereby
grant to Georgetown, its successors and assigns, the non-exclusive right, privilege and franchise
to use the Public Rights -of -Way of Round Rock located both within the certificated area of
Georgetown and within the corporate limits of Round Rock as provided herein for the
distribution of electric power. This Agreement grants no other rights or privileges to use the
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Public Rights -of -Way in Round Rock except to distribute power in the city limits of Round Rock
and no other use of the Public Rights -of -Way by Georgetown is granted or implied.
Section 3 TERM OF AGREEMENT.
Upon the filing with Round Rock by Georgetown of the acceptance required hereunder, this
Agreement shall be in full force and effect from and after the date of the passage and approval of
this Agreement until the 30th day of April, 2016.
Section 4 USE FEE.
In consideration for the rights and privileges herein granted, the administration of this Agreement
by Round Rock, the temporary interference with the use of Public Rights -of -Way as rental for
the use of the Public Rights -of -Way and for other costs and obligations undertaken by Round
Rock herein, Georgetown agrees to pay to Round Rock a Use Fee, computed as a kWh charge, as
described herein. The kWh charge being equal to $0.0028872 per kWh for each kWh delivered
in the preceding year to retail customers whose consuming facilities' point of delivery is located
within the corporate limits of Round Rock, not to exceed the amount or amounts prescribed by
Section 33.008 of the Texas Utilities Code.
Such use fee payments described in the above section 4 shall be calculated and paid to Round
Rock annually on or before the 30th day of October, of each year of this Agreement, with the
first such annual payment being due October 30, 2006. Late payments shall accrue interest at
six percent (6.00%), plus a late payment fee of $50.00 per day, up to $1000.
Such use fee payments described above shall be reviewed and possibly recalculated, as may be
agreed upon by the Parties, at three (3) year intervals, with the first review being conducted no
sooner than April 30, 2009 with in any changes being agreed upon and implemented no later
than June 30, 2009. Should the Parties agree at any review that no recalculation of the Use Fee
is necessary, this Agreement shall continue in full force and effect until modified in writing
during the next scheduled review.
Section 5 AUDIT OF GEORGETOWN'S RECORDS AND REPORTS.
5.1 Books of Account. Georgetown shall keep complete and accurate books of accounts and
records of its business and operations under and in connection with this Agreement.
5.2 Access by Round Rock. The City Manager of Round Rock shall have access to all books
of accounts and records of Georgetown to the extent said books of accounts and records relate to
and will assist Round Rock in ascertaining the correctness of any and all payments or reports to
Round Rock. As to compliance with the construction standards, Round Rock's City Manager
shall have access to Georgetown's records relating to use of the Public Rights -of -Way by its
System within Round Rock, and may examine its representatives in respect thereto. Access shall
be given by Georgetown to Round Rock's City Manger at all reasonable times.
5.3 Audits. Round Rock may inspect Georgetown's books of accounts relative to Round
Rock at any time during regular business hours on ten (10) business days' prior written notice
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and may audit the books from time to time. All records reasonably necessary for such audit shall
be made available by Georgetown at Georgetown's City Hall. Georgetown agrees to give its full
cooperation in any audit and shall provide complete responses to inquiries within thirty (30) days
of written request. If the results of any audit indicate that Georgetown (i) paid the correct Use
Fee, (ii) overpaid the Use Fee and is entitled to a refund or credit, or (iii) underpaid the Use Fee
by three percent (3.00%) or less, then Round Rock shall pay the costs of the audit. If the results
of the audit indicate that Georgetown underpaid the Use Fee by more than three percent (3.00%),
then Georgetown shall pay the reasonable costs of the audit. Round Rock agrees that any audit
shall be performed in good faith. If the results of the audit indicate that Georgetown underpaid
the Use Fee by more than three percent (3.00%), and Georgetown is unable to produce contrary
evidence that in Round Rock's reasonable judgment is satisfactory to demonstrate to Round
Rock that the results of the audit are not accurate, then Georgetown shall pay interest on the total
amount of underpayment at an annualized interest rate of 8%, and interest shall be calculated
from the time the original amount is due. Any additional amount due to Round Rock hereunder
shall be paid within thirty (30) days from the date of invoice. Any amount not paid within thirty
(30) days from the date of the invoice will cause interest to be payable at an annualized interest
rate of 8% on the entire amount from the date of invoice. Notwithstanding the above, if
Georgetown's auditor disagrees with Round Rock's determination that the additional amount due
exceeds three percent (3.00%), Round Rock's auditor and Georgetown's auditor shall choose a
neutral auditor who shall make a determination which is final and binding on both parties as to
whether the three percent (3.00%) amount was exceeded.
5.4 Confidentiality. The Parties agree to hold in strict confidence any non-public information
or information marked proprietary or confidential that it learns from each other to the extent
permitted by law. Neither Party shall be liable to the other Party for the release of any
information obtained as a result of an audit where a Party is required to release that information
by law or court order.
Section 6 ANNEXATIONS BY ROUND ROCK.
This Agreement shall extend to and include any and all territory which is annexed by Round
Rock and lies within Georgetown's certificated area during the term of this Agreement. Within
sixty (60) days from the effective date of any such annexation, Georgetown shall assure Round
Rock that any and all customers located within such annexed territory be included and shown on
its accounting system as being within Round Rock. After such sixty (60) day period, all
customer accounts located within such annexed territory shall be subject to the payment
provisions specified in Section 4 of this Agreement.
Section 7 CONSTRUCTION.
7.1 Compliance with Round Rock Ordinances. Georgetown shall be bound by all current and
future ordinances that govern the placement, location and construction of facilities in Round
Rock; and ordinances that assist in the management of facilities placed in, on or over the Public
Rights -of -Way to the extent such are necessary to protect the public health, safety, or welfare,
and are adopted pursuant to Round Rock's police powers. Round Rock shall in good faith
provide Georgetown with a thirty (30) day notice prior to the consideration of any proposed
ordinance that binds Georgetown. In the event that the thirty (30) day notice is not provided to
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Georgetown, through inadvertence or otherwise, such ordinance shall still be binding upon
Georgetown.
7.2 Relocation of Facilities. In the event relocation is required by Round Rock of any of
Georgetown's electric utility wire, cable, or other facility within Public Rights -of -Way such
relocation shall be completed within the time allowed. In the event relocation is not completed
in the time allowed due to action or inaction by Georgetown, Georgetown shall defend, pay and
reimburse Round Rock for any construction delay claims that may be asserted against Round
Rock due to any delay arising from the failure to timely relocate the facilities.
7.3 Inspection. Round Rock retains the right to make reasonable visual, non-invasive
inspections of the System and on request of Round Rock's City Manager from time to time, to
require Georgetown to provide available records or data to demonstrate its current compliance
with the terms of this Agreement. Said inspections shall be made during Georgetown's normal
business hours and shall not cause Georgetown's employees to work any hours that will cause
Georgetown to pay overtime wages or salaries to employees necessary to fulfill Round Rock's
right to said inspection.
7.4 Temporary Removal of Wires. Georgetown, on the request of any person shall remove or
raise or lower its wires within Round Rock temporarily to permit the moving of houses or other
bulky structures. The expense of such temporary removal, raising or lowering of wires shall be
paid by the benefited party or parties, and Georgetown may require such payment in advance.
Georgetown shall be given not less than seventy-two (72) hours advance notice to arrange for
such temporary wire changes. The clearance of wires above ground or rails within Round Rock
and also underground work shall conform to the basic standards of the National Electrical Safety
Code, National Bureau of Standards, United States Department of Commerce, as promulgated at
the time of erection thereof.
7.5 Tree Trimming. The right, license, privilege and permission is hereby granted to
Georgetown, its successors and assigns, to trim trees upon and overhanging the streets, alleys,
sidewalks and public places of Round Rock, so as to prevent the branches of such trees from
coming in contact with the wires or cables of Georgetown, and when so ordered by Round Rock,
said trimming shall be done under the supervision and direction of Round Rock City Manager or
of any city official to whom said duties have been or may be delegated.
Section 8 TRANSFERS AND ASSIGNMENT.
No transfer of this Agreement shall be effective unless the following conditions are met:
a) The transfer shall be in writing, in duplicate;
b) Signed by both the transferor and by the transferee;
c) Filed with Round Rock City Secretary;
d) The transferee pays a franchise transfer fee of Five Hundred Dollars ($500.00) to
Round Rock; and
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e) The transfer is approved by Round Rock's City Council as provided herein.
The fees for the years subsequent to such transfer shall be payable by the transferee under the
same conditions as they had been for the transferor. Approval by the Round Rock City Council
of such transfer will extinguish Georgetown's rights and obligations pursuant to his Agreement
and delegate them to the transferee.
No assignment in law or otherwise shall be effective until the assignee has filed with Round
Rock's City Manager an instrument, duly executed, reciting the fact of such assignment,
accepting the terms of this Agreement, and agreeing to comply with all of the provisions of this
Agreement . A mortgage or other pledge of assets in a bona fide lending transaction shall not be
considered an assignment for the purposes of this section.
Section 9 FORFEITURE AND TERMINATION.
9.1 In addition to all other rights and powers retained by Round Rock under this Agreement
or otherwise, Round Rock reserves the right to forfeit and terminate this Agreement and all of
Georgetown's rights and privileges hereunder in the event of a material breach of terms and
conditions hereof, subject to reasonable notice and opportunity to cure as provided in Section 9.2
below.
9.2 If Georgetown is in violation of this Agreement and such violation is of a curable nature,
Round Rock's City Manager or designee shall notify Georgetown in writing, setting forth the
nature of such violation. Within twenty-one (21) days of receipt of such notice, Georgetown
shall (i) respond in writing that the violation has been cured, (ii) provide a written cure plan,
subject to review and approval by Round Rock's City Manager, or (iii) provide a written
explanation with documentation to support that the alleged violation did not occur.
9.3 Notwithstanding Section 9.2, Georgetown shall be allowed thirty (30) days after Round
Rock's delivery of the written notice described in Section 9.2 to cure a curable violation. If the
nature of such violation is such that it cannot be fully cured within thirty (30) days due to
circumstances not under Georgetown's control, the period of time in which Georgetown must
cure the violation may be extended by Round Rock's City Manager in writing for such additional
time reasonably necessary to complete the cure, provided that (i) Georgetown has begun
promptly to cure, and (ii) Georgetown is diligently pursuing its efforts to cure in Round Rock
Manager's reasonable judgment.
9.4 At Georgetown's request, Round Rock shall afford Georgetown an opportunity to show
that a violation has not occurred, through a hearing before the Round Rock City Council. Such
hearing shall take place on or before the next Round Rock City Council meeting regularly
scheduled within thirty (30) days after Round Rock's receipt of Georgetown's request. If the
City Council determines that a violation has occurred, Georgetown shall pay all of Round Rock's
reasonable expenses associated with the hearing. After the conclusion of the hearing either party
may seek any and all remedies to which it may be entitled at law or in equity.
9.5 Material breaches of this Agreement specifically include, but are not limited to, failing to
comply with the requirements set forth in Sections 4, 5, and 7 and the provision of unauthorized
services.
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9.6 The preceding shall not constitute a material breach if the violation occurs without the
fault of Georgetown or occurs as a result of circumstances beyond its control. Georgetown shall
not be excused from performance of any of its obligations under this Agreement by mere
economic hardship, nor misfeasance or malfeasance of its directors, managers, officers or
employees.
9.7 A termination shall be declared only by a written decision of the Round Rock City
Council after a public hearing before the Round Rock City Council, which shall afford
Georgetown full opportunity to be heard and to respond to any notice of grounds of termination.
The foregoing sentence, however, shall not be construed as requiring any additional hearing after
Georgetown has had such proceeding pursuant to Section 9.4 and after Georgetown's failure
timely to cure any default within a time period which may have been granted by the City Council
at the hearing held pursuant to Section 9.4 above. All of Round Rock's notice requirements shall
be met by providing written notice to Georgetown at least fifteen (15) days before a public
hearing concerning the proposed termination of this Agreement. Such notice shall state Round
Rock's alleged grounds for termination.
9.8 The Round Rock City Council, after public hearing, and upon finding the existence of
grounds to terminate, may either declare this Agreement terminated, excuse the breach upon a
showing by Georgetown of mitigating circumstances or good cause for the existence of such
grounds, or grant additional time for Georgetown to cure its default.
9.9 Neither Georgetown's acceptance of this Agreement, Georgetown's appearance before
the Round Rock's City Council at any public hearing concerning proposed termination of this
Agreement nor any action taken by the Round Rock City Council as a result of such public
hearing, including a declaration of termination or a finding of grounds to terminate, shall be
construed to waive or otherwise affect Georgetown's right to seek judicial determination of the
rights and responsibilities of the Parties under this Agreement.
Section 10 FORECLOSURE, RECEIVERSHIP, AND BANKRUPTCY.
Georgetown shall notify Round Rock within thirty (30) days after the appointment of a receiver
or trustee to take over and conduct the business of Georgetown, whether in receivership,
reorganization, bankruptcy, or other action or proceeding, whether voluntary or involuntary, such
notice to include where applicable the cause number and court involved.
Section 11 ENFORCEMENT.
Round Rock's attorney or his/her designee shall have the right to enforce all legal rights and
obligations under this Agreement without further authorization. Georgetown shall provide to
Round Rock's attorney or his/her designee documents and records that Round Rock's attorney or
his/her designee deems reasonably necessary to determine Georgetown's compliance with this
Agreement, with the exception of those documents made privileged and/or confidential by
federal or state law or regulation or any documents that would be privileged under the Texas
Rules of Civil Procedure.
Section 12 NONEXCLUSIVE RIGHTS.
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Nothing contained in this Agreement shall ever be construed as conferring upon Georgetown any
exclusive rights or privileges of any nature whatsoever.
Section 13 ENTIRE AGREEMENT.
This Agreement contains all of the agreements of the parties with respect to any matter covered
or mentioned in this Agreement and no prior or contemporaneous agreements or understandings
pertaining to any such matters shall be effective for any purpose.
Section 14 SEVERABILITY.
If any section, subsection, sentence, clause, phrase, or portion of this Agreement is for any
reason held invalid or unconstitutional by any court or administrative agency of competent
jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and
such holding shall not affect the validity of the remaining portions thereof.
Section 15 NON -WAIVER.
Failure of Round Rock to declare, or delay in taking any action in connection with, any breach or
default immediately upon the occurrence thereof shall not waive such breach or default, but
Round Rock shall have the right to declare any such breach or default at any time. Failure of
Round Rock to declare one breach or default does not act as a waiver of Round Rock's rights to
declare another breach or default.
Section 16 GOVERNING LAW; VENUE.
This Agreement shall be governed by and construed in accordance with the laws of the State of
Texas. The venue and jurisdiction over any dispute related to this Agreement shall be with the
Texas State District Court in Williamson County, Texas.
Section 17 NO WAIVER OF IMMUNITIES
Nothing in the Agreement shall be construed to waive any immunities from suit or liability
enjoyed by the Parties, their past or present officers, employees, or agents or employees.
Section 18 NOTICE
All notices and demands shall be in writing, presented personally or sent by certified or
registered mail, return receipt requested, to any Party at the following addresses:
To Round Rock:
City of Round Rock
Attn: City Manager
221 E. Main Street
Round Rock, Texas 78664
With a copy to:
Stephan L. Sheets
8
Sheets & Crossfield, P.C.
309 E. Main Street
Round Rock, Texas 78664
To Georgetown:
City of Georgetown
Attn: City Manager
P.O. Box 409
Georgetown, Texas 78627-0409
With a copy to:
Patricia E. Carls
Brown & Carls, LLP
106 East 6th Street
Suite 550
Austin, Texas 78701
or to such other address as provided in writing by the receiving Party.
Section 19 APPROVAL BY GOVERNING BODIES.
This Agreement has been approved by the Governing Body of the City of Round Rock and by
the Governing Body of the City of Georgetown at meetings held in compliance with the Texas
Open Meetings Act.
Section 20 PAYMENT FROM CURRENT REVENUES.
Each party paying for the performance of governmental functions or services must make those
payments from current revenues available to the paying party.
EXECUTED TO BE EFFECTIVE this
ATTEST:
day of , 2006.
CITY OF ROUND ROCK
B y:
Printed Name: Nyle Maxwell
Title: Mayor
9
By:
Printed Name: Christine R. Martinez
Title: City Secretary
APPROVED AS TO FORM:
Stephan L. Sheets
City Attorney
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on , 2006, by Nyle
Maxwell, Mayor of the City of Round Rock, Texas, on behalf of the City of Round Rock, a
Texas home rule municipal corporation.
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
My Commission expires: Printed Name:
CITY OF GEORGETOWN
By:
Printed e: Gary Nelon
Title: Mayor
10
ATTEST:
By:
Sandra D. Lee, City Secretary
APPROVED AS TO FORM:
Patricia E. Carls, Brown & Carls, LLP
City Attorney
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on 075 , 2006, by Gary
Nelon, Mayor of the City of Georgetown, Texas, on behalf of the City of Georgetown, a Texas
home rule municipal corporation.
SANDRA D. LEE
a; MY COMMISSION EXPIRES
January 3, 2010
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
My Commission expires: /_3'_ toio Printed Name: �'4/VD,ei9 D. L�
11
CITY OF GEORGETOWN
Proposed Electric Use Fee Payment for City of Round Rock
March 1, 2006
Per kWh Component
City of Georgetown proposed kWh Charge (PUC rate) 0.002788
Misc/Sundry Component
Methodology: 2 year estimated COG Tariff pmts
Pmt kWh
2007 $5,000 75,000,000 0.00006667
2008 $1,000 75,000,000 0.00001333
Average 0.00004000
Tax Component
Methodology: Per kWh factor based on TXU tax payment to CRR
Taxes kWh
$4,440 75,000,000 5.920E-05
Proposed per kWh Charge:
0.000040
0.000059
0.0028872
Component Impact Calculation
Assume 75,000,000 kWh sold in Round Rock
75,000,000 0.002788 $ 209,100
75,000,000 0.0028872 $ 216,540
Difference $ 7,440
Maximum Value of COG assets w/n CoRR $ 1,200,000
Lost property tax revenue ($0.37/100)
$ 4,440
Round Rock
Round Rock Use Fee Estimate
FINAL
2005/06 2006/07 2007/08 2008/09 2009/10 2010/11
Estimated kWh 4,483,928 39,472,854 60,267,404 73,382,788 77,505,833 79,292,995
Fee per kWh 0.002887 0.002887 0.002887 0.002887 0.002887 0.002887
Estimated revenue $366,256 $3,306,489 $5,069,568 $6,191,494 $6,536,620 $6,679,732
RR Usage Fee $12,946 $113,958 $173,992 $211,856 $223,759 $228,919
Fee as % of revenue 3.53% 3.45% 3.43% 3.42% 3.42% 3.43%
DATE: June 1, 2006
SUBJECT: City Council Meeting - June 8, 2006
ITEM: 10.E.2. Consider a resolution authorizing the Mayor to execute an Interlocal
Agreement with the City of Georgetown granting use of public rights
of way to deliver electric services.
Department: Finance
Staff Person: David Kautz, Assistant City Manager/CFO
Cindy Demers, Finance Director
Justification:
Negotiated agreement based on terms listed below.
Funding:
Cost: N/A
Source of funds: N/A
Outside Resources: N/A
Background Information:
Georgetown's electric utility has service area in the northern part of the City of Round Rock.
Staff has negotiated an Interlocal agreement granting the use of Round Rock public right of
way to deliver electric service to the area and recommends the following terms:
1. Term - 10 years
2. Applies to electric power delivered to customers within the City of Round Rock.
3. Use Fee - .0028872 per kWh delivered
4. Use Fee paid annually
5. Fee reviewed and updated in 3 year intervals
Currently, the service area includes the Round Rock Premium Outlet property.
Public Comment: N/A
EXECUTED
DOCUMENT
FOLLOWS
INTERLOCAL AGREEMENT
oth
THIS INTERLOCAL AGREEMENT is made and entered into effective this 0 day of
gttJYLQ, 2006, by and between the CITY OF ROUND ROCK, a Texas home rule municipal
corporation ("Round Rock") and CITY OF GEORGETOWN, a Texas home -rule municipal
corporation ("Georgetown"), for purposes of describing the use by Georgetown of the public
rights-of-way of Round Rock for the distribution of electric power. Round Rock and
Georgetown are referred to collectively herein as the "Parties," or individually as a "Party."
WITNESSETH:
WHEREAS, V.T.C.A., Government Code, Chapter 791, the Texas Interlocal Cooperation
Act, provides that any one or more local governments may contract with each other for
governmental functions and services in areas such as streets, roads, and drainage, public health
and welfare; and relating to other governmental functions in which the contracting parties are
mutually interested in order to provide a governmental function or service that each party to the
contract is authorized to perform individually.
WHEREAS, Section 791.001 of the Government Code further provides that the Parties
are authorized to contract or agree to perform governmental functions and services to increase
the efficiency and effectiveness of their respective local governments.
WHEREAS, Texas Utility Code § 33.008(a) provides that, "a municipality may impose
on [a] ... municipally owned utility ... that provides distribution service within the municipality
a reasonable charge as specified in [§ 33.008] Subsection (b) for the use of a municipal street,
alley, or public way to deliver electricity to a retail customer."
WHEREAS, Georgetown owns and operates an electric utility and hold Certificate of
Convenience and Necessity No. allowing it to provide retail electric utility
services in an area that includes a land located within the corporate limits of Round Rock.
WHEREAS, Georgetown wishes to use Round Rock's streets, alleys, and public ways to
deliver electricity to retail customers located both within Georgetown's certificated area and the
corporate limits of Round Rock.
WHEREAS, Round Rock wishes to grant Georgetown the right to use its streets, alleys,
and public ways to deliver electricity to retail customers located both within Georgetown's
certificated area and Round Rock's corporate limits for a reasonable charge.
WHEREAS, Round Rock finds that the charge provided in this Agreement is reasonable
and comparable to fees charged to other providers.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the undersigned parties agree as follows:
Section 1 DEFINITIONS.
"Agreement" shall mean this Agreement and all rights and obligations established herein or as
amended.
"Georgetown" shall mean the City of Georgetown, Texas, a home rule municipal corporation, as
owner of a public electric utility.
"kWh Charge" as described in Section 5.1.
"Public Rights -of -Way" shall mean streets, avenues, easements (other than private easements
obtained by Georgetown), rights -of -ways, alleys and highways of Round Rock and beneath the
surface thereof as they may now or hereafter may exist and as defined herein, but such does not
include bridges or other infrastructure owned by Round Rock such as water, sewer, electric,
telecommunication and facilities and any conduit system owned, operated or controlled by
Round Rock in or on the Public Rights -of -Way.
"Round Rock" shall mean the City of Round Rock, Texas, a home rule municipal corporation
whose corporate limits are as constituted on the effective date of this Agreement or as may
hereinafter be constituted.
"System" shall mean all poles, pole lines, towers, distribution lines, wires, guys, cables, conduits
and other desirable instrumentalities and appurtenances necessary for the operation
Georgetown's electric distribution business.
Section 2 GRANT OF RIGHT TO USE MUNICIPAL STREETS, ALLEYS OR PUBLIC
WAYS TO DELIVER ELECTRICITY TO RETAIL CUSTOMERS.
Round Rock, subject to the terms, conditions and provisions of this Agreement, does hereby
grant to Georgetown, its successors and assigns, the non-exclusive right, privilege and franchise
to use the Public Rights -of -Way of Round Rock located both within the certificated area of
Georgetown and within the corporate limits of Round Rock as provided herein for the
distribution of electric power. This Agreement grants no other rights or privileges to use the
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Public Rights -of -Way in Round Rock except to distribute power in the city limits of Round Rock
and no other use of the Public Rights -of -Way by Georgetown is granted or implied.
Section 3 TERM OF AGREEMENT.
Upon the filing with Round Rock by Georgetown of the acceptance required hereunder, this
Agreement shall be in full force and effect from and after the date of the passage and approval of
this Agreement until the 30th day of April, 2016.
Section 4 USE FEE.
In consideration for the rights and privileges herein granted, the administration of this Agreement
by Round Rock, the temporary interference with the use of Public Rights -of -Way as rental for
the use of the Public Rights -of -Way and for other costs and obligations undertaken by Round
Rock herein, Georgetown agrees to pay to Round Rock a Use Fee, computed as a kWh charge, as
described herein. The kWh charge being equal to $0.0028872 per kWh for each kWh delivered
in the preceding year to retail customers whose consuming facilities' point of delivery is located
within the corporate limits of Round Rock, not to exceed the amount or amounts prescribed by
Section 33.008 of the Texas Utilities Code.
Such use fee payments described in the above section 4 shall be calculated and paid to Round
Rock annually on or before the 30th day of October, of each year of this Agreement, with the
first such annual payment being due October 30, 2006. Late payments shall accrue interest at
six percent (6.00%), plus a late payment fee of $50.00 per day, up to $1000.
Such use fee payments described above shall be reviewed and possibly recalculated, as may be
agreed upon by the Parties, at three (3) year intervals, with the first review being conducted no
sooner than April 30, 2009 with in any changes being agreed upon and implemented no later
than June 30, 2009. Should the Parties agree at any review that no recalculation of the Use Fee
is necessary, this Agreement shall continue in full force and effect until modified in writing
during the next scheduled review.
Section 5 AUDIT OF GEORGETOWN'S RECORDS AND REPORTS.
5.1 Books of Account. Georgetown shall keep complete and accurate books of accounts and
records of its business and operations under and in connection with this Agreement.
5.2 Access by Round Rock. The City Manager of Round Rock shall have access to all books
of accounts and records of Georgetown to the extent said books of accounts and records relate to
and will assist Round Rock in ascertaining the correctness of any and all payments or reports to
Round Rock. As to compliance with the construction standards, Round Rock's City Manager
shall have access to Georgetown's records relating to use of the Public Rights -of -Way by its
System within Round Rock, and may examine its representatives in respect thereto. Access shall
be given by Georgetown to Round Rock's City Manger at all reasonable times.
5.3 Audits. Round Rock may inspect Georgetown's books of accounts relative to Round
Rock at any time during regular business hours on ten (10) business days' prior written notice
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and may audit the books from time to time. All records reasonably necessary for such audit shall
be made available by Georgetown at Georgetown's City Hall. Georgetown agrees to give its full
cooperation in any audit and shall provide complete responses to inquiries within thirty (30) days
of written request. If the results of any audit indicate that Georgetown (i) paid the correct Use
Fee, (ii) overpaid the Use Fee and is entitled to a refund or credit, or (iii) underpaid the Use Fee
by three percent (3.00%) or less, then Round Rock shall pay the costs of the audit. If the results
of the audit indicate that Georgetown underpaid the Use Fee by more than three percent (3.00%),
then Georgetown shall pay the reasonable costs of the audit. Round Rock agrees that any audit
shall be performed in good faith. If the results of the audit indicate that Georgetown underpaid
the Use Fee by more than three percent (3.00%), and Georgetown is unable to produce contrary
evidence that in Round Rock's reasonable judgment is satisfactory to demonstrate to Round
Rock that the results of the audit are not accurate, then Georgetown shall pay interest on the total
amount of underpayment at an annualized interest rate of 8%, and interest shall be calculated
from the time the original amount is due. Any additional amount due to Round Rock hereunder
shall be paid within thirty (30) days from the date of invoice. Any amount not paid within thirty
(30) days from the date of the invoice will cause interest to be payable at an annualized interest
rate of 8% on the entire amount from the date of invoice. Notwithstanding the above, if
Georgetown's auditor disagrees with Round Rock's determination that the additional amount due
exceeds three percent (3.00%), Round Rock's auditor and Georgetown's auditor shall choose a
neutral auditor who shall make a determination which is final and binding on both parties as to
whether the three percent (3.00%) amount was exceeded.
5.4 Confidentiality. The Parties agree to hold in strict confidence any non-public information
or information marked proprietary or confidential that it learns from each other to the extent
permitted by law. Neither Party shall be liable to the other Party for the release of any
information obtained as a result of an audit where a Party is required to release that information
by law or court order.
Section 6 ANNEXATIONS BY ROUND ROCK.
This Agreement shall extend to and include any and all territory which is annexed by Round
Rock and lies within Georgetown's certificated area during the term of this Agreement. Within
sixty (60) days from the effective date of any such annexation, Georgetown shall assure Round
Rock that any and all customers located within such annexed territory be included and shown on
its accounting system as being within Round Rock. After such sixty (60) day period, all
customer accounts located within such annexed territory shall be subject to the payment
provisions specified in Section 4 of this Agreement.
Section 7 CONSTRUCTION.
7.1 Compliance with Round Rock Ordinances. Georgetown shall be bound by all current and
future ordinances that govern the placement, location and construction of facilities in Round
Rock; and ordinances that assist in the management of facilities placed in, on or over the Public
Rights -of -Way to the extent such are necessary to protect the public health, safety, or welfare,
and are adopted pursuant to Round Rock's police powers. Round Rock shall in good faith
provide Georgetown with a thirty (30) day notice prior to the consideration of any proposed
ordinance that binds Georgetown. In the event that the thirty (30) day notice is not provided to
4
Georgetown, through inadvertence or otherwise, such ordinance shall still be binding upon
Georgetown.
7.2 Relocation of Facilities. In the event relocation is required by Round Rock of any of
Georgetown's electric utility wire, cable, or other facility within Public Rights -of -Way such
relocation shall be completed within the time allowed. In the event relocation is not completed
in the time allowed due to action or inaction by Georgetown, Georgetown shall defend, pay and
reimburse Round Rock for any construction delay claims that may be asserted against Round
Rock due to any delay arising from the failure to timely relocate the facilities.
7.3 Inspection. Round Rock retains the right to make reasonable visual, non-invasive
inspections of the System and on request of Round Rock's City Manager from time to time, to
require Georgetown to provide available records or data to demonstrate its current compliance
with the terms of this Agreement. Said inspections shall be made during Georgetown's normal
business hours and shall not cause Georgetown's employees to work any hours that will cause
Georgetown to pay overtime wages or salaries to employees necessary to fulfill Round Rock's
right to said inspection.
7.4 Temporary Removal of Wires. Georgetown, on the request of any person shall remove or
raise or lower its wires within Round Rock temporarily to permit the moving of houses or other
bulky structures. The expense of such temporary removal, raising or lowering of wires shall be
paid by the benefited party or parties, and Georgetown may require such payment in advance.
Georgetown shall be given not less than seventy-two (72) hours advance notice to arrange for
such temporary wire changes. The clearance of wires above ground or rails within Round Rock
and also underground work shall conform to the basic standards of the National Electrical Safety
Code, National Bureau of Standards, United States Department of Commerce, as promulgated at
the time of erection thereof.
7.5 Tree Trimming. The right, license, privilege and permission is hereby granted to
Georgetown, its successors and assigns, to trim trees upon and overhanging the streets, alleys,
sidewalks and public places of Round Rock, so as to prevent the branches of such trees from
coming in contact with the wires or cables of Georgetown, and when so ordered by Round Rock,
said trimming shall be done under the supervision and direction of Round Rock City Manager or
of any city official to whom said duties have been or may be delegated.
Section 8 TRANSFERS AND ASSIGNMENT.
No transfer of this Agreement shall be effective unless the following conditions are met:
a) The transfer shall be in writing, in duplicate;
b) Signed by both the transferor and by the transferee;
c) Filed with Round Rock City Secretary;
d) The transferee pays a franchise transfer fee of Five Hundred Dollars ($500.00) to
Round Rock; and
5
e) The transfer is approved by Round Rock's City Council as provided herein.
The fees for the years subsequent to such transfer shall be payable by the transferee under the
same conditions as they had been for the transferor. Approval by the Round Rock City Council
of such transfer will extinguish Georgetown's rights and obligations pursuant to his Agreement
and delegate them to the transferee.
No assignment in law or otherwise shall be effective until the assignee has filed with Round
Rock's City Manager an instrument, duly executed, reciting the fact of such assignment,
accepting the terms of this Agreement, and agreeing to comply with all of the provisions of this
Agreement . A mortgage or other pledge of assets in a bona fide lending transaction shall not be
considered an assignment for the purposes of this section.
Section 9 FORFEITURE AND TERMINATION.
9.1 In addition to all other rights and powers retained by Round Rock under this Agreement
or otherwise, Round Rock reserves the right to forfeit and terminate this Agreement and all of
Georgetown's rights and privileges hereunder in the event of a material breach of terms and
conditions hereof, subject to reasonable notice and opportunity to cure as provided in Section 9.2
below.
9.2 If Georgetown is in violation of this Agreement and such violation is of a curable nature,
Round Rock's City Manager or designee shall notify Georgetown in writing, setting forth the
nature of such violation. Within twenty-one (21) days of receipt of such notice, Georgetown
shall (i) respond in writing that the violation has been cured, (ii) provide a written cure plan,
subject to review and approval by Round Rock's City Manager, or (iii) provide a written
explanation with documentation to support that the alleged violation did not occur.
9.3 Notwithstanding Section 9.2, Georgetown shall be allowed thirty (30) days after Round
Rock's delivery of the written notice described in Section 9.2 to cure a curable violation. If the
nature of such violation is such that it cannot be fully cured within thirty (30) days due to
circumstances not under Georgetown's control, the period of time in which Georgetown must
cure the violation may be extended by Round Rock's City Manager in writing for such additional
time reasonably necessary to complete the cure, provided that (i) Georgetown has begun
promptly to cure, and (ii) Georgetown is diligently pursuing its efforts to cure in Round Rock
Manager's reasonable judgment.
9.4 At Georgetown's request, Round Rock shall afford Georgetown an opportunity to show
that a violation has not occurred, through a hearing before the Round Rock City Council. Such
hearing shall take place on or before the next Round Rock City Council meeting regularly
scheduled within thirty (30) days after Round Rock's receipt of Georgetown's request. If the
City Council determines that a violation has occurred, Georgetown shall pay all of Round Rock's
reasonable expenses associated with the hearing. After the conclusion of the hearing either party
may seek any and all remedies to which it may be entitled at law or in equity.
9.5 Material breaches of this Agreement specifically include, but are not limited to, failing to
comply with the requirements set forth in Sections 4, 5, and 7 and the provision of unauthorized
services.
6
9.6 The preceding shall not constitute a material breach if the violation occurs without the
fault of Georgetown or occurs as a result of circumstances beyond its control. Georgetown shall
not be excused from performance of any of its obligations under this Agreement by mere
economic hardship, nor misfeasance or malfeasance of its directors, managers, officers or
employees.
9.7 A termination shall be declared only by a written decision of the Round Rock City
Council after a public hearing before the Round Rock City Council, which shall afford
Georgetown full opportunity to be heard and to respond to any notice of grounds of termination.
The foregoing sentence, however, shall not be construed as requiring any additional hearing after
Georgetown has had such proceeding pursuant to Section 9.4 and after Georgetown's failure
timely to cure any default within a time period which may have been granted by the City Council
at the hearing held pursuant to Section 9.4 above. All of Round Rock's notice requirements shall
be met by providing written notice to Georgetown at least fifteen (15) days before a public
hearing concerning the proposed termination of this Agreement. Such notice shall state Round
Rock's alleged grounds for termination.
9.8 The Round Rock City Council, after public hearing, and upon finding the existence of
grounds to terminate, may either declare this Agreement terminated, excuse the breach upon a
showing by Georgetown of mitigating circumstances or good cause for the existence of such
grounds, or grant additional time for Georgetown to cure its default.
9.9 Neither Georgetown's acceptance of this Agreement, Georgetown's appearance before
the Round Rock's City Council at any public hearing concerning proposed termination of this
Agreement nor any action taken by the Round Rock City Council as a result of such public
hearing, including a declaration of termination or a finding of grounds to terminate, shall be
construed to waive or otherwise affect Georgetown's right to seek judicial determination of the
rights and responsibilities of the Parties under this Agreement.
Section 10 FORECLOSURE, RECEIVERSHIP, AND BANKRUPTCY.
Georgetown shall notify Round Rock within thirty (30) days after the appointment of a receiver
or trustee to take over and conduct the business of Georgetown, whether in receivership,
reorganization, bankruptcy, or other action or proceeding, whether voluntary or involuntary, such
notice to include where applicable the cause number and court involved.
Section 11 ENFORCEMENT.
Round Rock's attorney or his/her designee shall have the right to enforce all legal rights and
obligations under this Agreement without further authorization. Georgetown shall provide to
Round Rock's attorney or his/her designee documents and records that Round Rock's attorney or
his/her designee deems reasonably necessary to determine Georgetown's compliance with this
Agreement, with the exception of those documents made privileged and/or confidential by
federal or state law or regulation or any documents that would be privileged under the Texas
Rules of Civil Procedure.
Section 12 NONEXCLUSIVE RIGHTS.
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Nothing contained in this Agreement shall ever be construed as conferring upon Georgetown any
exclusive rights or privileges of any nature whatsoever.
Section 13 ENTIRE AGREEMENT.
This Agreement contains all of the agreements of the parties with respect to any matter covered
or mentioned in this Agreement and no prior or contemporaneous agreements or understandings
pertaining to any such matters shall be effective for any purpose.
Section 14 SEVERABILITY.
If any section, subsection, sentence, clause, phrase, or portion of this Agreement is for any
reason held invalid or unconstitutional by any court or administrative agency of competent
jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and
such holding shall not affect the validity of the remaining portions thereof.
Section 15 NON -WAIVER.
Failure of Round Rock to declare, or delay in taking any action in connection with, any breach or
default immediately upon the occurrence thereof shall not waive such breach or default, but
Round Rock shall have the right to declare any such breach or default at any time. Failure of
Round Rock to declare one breach or default does not act as a waiver of Round Rock's rights to
declare another breach or default.
Section 16 GOVERNING LAW; VENUE.
This Agreement shall be governed by and construed in accordance with the laws of the State of
Texas. The venue and jurisdiction over any dispute related to this Agreement shall be with the
Texas State District Court in Williamson County, Texas.
Section 17 NO WAIVER OF IMMUNITIES
Nothing in the Agreement shall be construed to waive any immunities from suit or liability
enjoyed by the Parties, their past or present officers, employees, or agents or employees.
Section 18 NOTICE
All notices and demands shall be in writing, presented personally or sent by certified or
registered mail, return receipt requested, to any Party at the following addresses:
To Round Rock:
City of Round Rock
Attn: City Manager
221 E. Main Street
Round Rock, Texas 78664
With a copy to:
Stephan L. Sheets
8
Sheets & Crossfield, P.C.
309 E. Main Street
Round Rock, Texas 78664
To Georgetown:
City of Georgetown
Attn: City Manager
P.O. Box 409
Georgetown, Texas 78627-0409
With a copy to:
Patricia E. Carls
Brown & Carls, LLP
106 East 6th Street
Suite 550
Austin, Texas 78701
or to such other address as provided in writing by the receiving Party.
Section 19 APPROVAL BY GOVERNING BODIES.
This Agreement has been approved by the Governing Body of the City of Round Rock and by
the Governing Body of the City of Georgetown at meetings held in compliance with the Texas
Open Meetings Act.
Section 20 PAYMENT FROM CURRENT REVENUES.
Each party paying for the performance of governmental functions or services must make those
payments from current revenues available to the paying party.
?41)EXECUTED TO BE EFFECTIVE this U Qday of
ATTEST:
CITY OF ROUND ROCK
By:
__6A//40
P ' 4 Name: yle Maxwell
Title: Mayor
9
, 2006.
By: 1 1
R.Vcuitt)yn,
Printed Name: Christine R. Martinez
Title: City Secretary
APPRSVED AS TO FSRM:
WIlisi . ��. i ,1
Stephan . Sheets
City Attorney
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on , 2006, by Nyle
Maxwell, Mayor of the City of Round Rock, Texas, on behalf of the City of Round Rock, a
Texas home rule municipal corporation.
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
My Commission expires: Printed Name:
CITY OF GEORGETOWN
By:
Printed N. e: Gary Nelon
Title: Mayor
10
ATTEST:
By:, • i%
Sandra D. Lee, City Secretary
APPROVED AS TO FORM:
Patricia E. Carls, Brown & Carls, LLP
City Attorney
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on �%c� `� , 2006, by Gary
Nelon, Mayor of the City of Georgetown, Texas, on behalf of the City of Georgetown, a Texas
home rule municipal corporation.
SANDRA D. LEE
MY COMMISSION EXPIRES
January 3, 2010
dopummorounimemmiveliumwswelliNOMMINISIROrk
My Commission expires:
/-j .26/67
11
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
Printed Name: '/4i0&? j2, LSC
CITY OF GEORGETOWN
Proposed Electric Use Fee Payment for City of Round Rock
March 1, 2006
Per kWh Component
City of Georgetown proposed kWh Charge (PUC rate) 0.002788
MisclSundry Component
Methodology: 2 year estimated COG Tariff pmts
Pmt kWh
2007 $5,000 75,000,000 0.00006667
2008 $1,000 75,000,000 0.00001333
Average 0.00004000
Tax Component
Methodology: Per kWh factor based on TXU tax payment to CRR
Taxes kWh
$4,440 75,000,000 5.920E-05
Proposed per kWh Charge:
0.000040
0.000059
0.0028872
Component Impact Calculation
Assume 75,000,000 kWh sold in Round Rock
75,000,000
75,000,000
0.002788 $ 209,100
0.0028872 $ 216,540
Difference $ 7,440
Maximum Value of COG assets w/n CoRR $ 1,200,000
Lost property tax revenue ($0.37/100) $ 4,440 Round Rock
Round Rock Use Fee Estimate
FINAL
2005/06 2006/07 2007/08 2008/09 2009/10 2010/11
Estimated kWh
Fee per kWh
4,483,928 39,472,854 60,267,404 73,382,788 77,505,833 79,292,995
0.002887 0.002887 0.002887 0.002887 0.002887 0.002887
Estimated revenue $366,256 $3,306,489 $5,069,568 $6,191,494 $6,536,620 $6,679,732
RR Usage Fee $12,946 $113,958 $173,992 $211,856 $223,759 $228,919
Fee as % of revenue 3.53% 3.45% 3.43% 3.42% 3.42% 3.43%