2013-354ORDINANCE NO. 2013 -354
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS
PROVIDING FOR, AUTHORIZING, AND APPROVING THE EXECUTION BY THE CITY
MANAGER OF A POWER PURCHASE AGREEMENT BY AND BETWEEN THE CITY OF
DENTON, TEXAS AND THE UNIVERSITY OF NORTH TEXAS; APPROVING THE
EXECUTION OF SUCH OTHER AND FURTHER RELATED DOCUMENTS, INCLUDING,
WITHOUT LIMITATION, CERTIFICATES, ASSIGNMENTS, LICENSES, DIRECTIONS,
INSTRUMENTS, INSTRUCTIONS, CONFIRMATIONS AND STATEMENTS BY THE
CITY MANAGER OR HIS DESIGNEE, WHICH ARE INCIDENT OR RELATED THERETO,
AS SHALL BE REASONABLY DETERMINED BY THE CITY ATTORNEY OR HER
DESIGNEE; CONFIRMING AND RATIFYING THAT THE CITY OF DENTON, TEXAS,
ITS MAYOR, ITS CITY COUNCIL MEMBERS, ITS CITY MANAGER, AND ITS CITY
ATTORNEY OR HER DESIGNEE SHALL BE AUTHORIZED AND EMPOWERED TO
PERFORM SUCH ACTS AND OBLIGATIONS AS ARE REASONABLY REQUIRED TO
CONSUMMATE THIS TRANSACTION; RATIFYING ALL PRIOR ACTIONS TAKEN BY
THE CITY COUNCIL IN FURTHERANCE OF THE FOREGOING TRANSACTION; AND
DETERMINING THAT THE POWER PURCHASE AGREEMENT AND OTHER SAID
DOCUMENTS PERTAIN TO A "COMPETITIVE ELECTRIC MATTER" AS SET FORTH
UNDER THE PROVISIONS OF § §551.086 AND 552.133 OF THE TEXAS GOVERNMENT
CODE, AS AMENDED; FINDING AND DETERMINING THAT TEXAS GOVERNMENT
CODE §252.022(a)(15) APPLIES TO SAID AGREEMENT; ADOPTING SIGNIFICANT
RECITATIONS, FINDINGS AND CONCLUSIONS, AS ARE SET FORTH IN THE
PREAMBLE OF THIS ORDINANCE; THAT THE SALE OF ENERGY, AND OTHER
RELATED ARRANGEMENTS MADE BY THE CITY UNDER THE TERMS OF THIS
PURCHASE POWER AGREEMENT ARE IN THE PUBLIC WELFARE; AUTHORIZING
THE EXPENDITURE OF FUNDS THEREFOR; PROVIDING FOR RETROACTIVE
RATIFICATION, CONFIRMATION AND APPROVAL THEREOF.
WHEREAS, the City of Denton, Texas ( "Denton ") is a Home -Rule City and a Texas
municipal corporation governed by the constitution and laws of the State of Texas; and
WHEREAS, in accordance with the provisions of §551.086 of the Texas Government
Code, after due notice of the public meeting was provided as required by law, this "Power
Purchase Agreement" by and between the City of Denton, Texas and The University of North
Texas (hereafter the "Agreement" or the "Transaction ") was submitted for consideration to the
Denton Public Utilities Board on the 9th day of December, 2013, a majority of the Public Utilities
Board ( "PUB "), a "Public Power Governing Body" as defined by State law, convened a Closed
Meeting as permitted by law, and discussed, considered, and deliberated the Transaction; and
thereafter in its Closed Meeting on that date, discussed the Transaction and proceeded to
recommend to the City Council that the Transaction by and between Denton and the University
of North Texas (hereinafter "UNT "), a University operating under the laws of the State of Texas
be recommended for approval by a vote of six (6) in favor to none (0) opposed; a majority vote
of the PUB members present; and
WHEREAS, in accordance with the provisions of §551.086 of the Texas Government
Code, after due public notice being given, the City Council, a "Public Power Utility Governing
Body" under Senate Bill 7, has discussed, deliberated, and considered the Transaction, the
subject of this ordinance, in a Closed Meeting of the City Council on the 10th day of December,
2013, after being advised by its legal counsel, that the consideration of the Transaction which is
the subject of this ordinance, is related to competitive electric matters, including business and
commercial information, which if disclosed, would give advantage to its competitors or
prospective competitors; and
WHEREAS, thereafter, the City Council, then proceeded to consider the matter of the
Transaction, which is the subject of this ordinance, in its Closed Meeting on the 10th day of
December, 2013; and the City Council proceeded to take final action, and voted, by a majority of
its members present, seven (7) for and none against, that the City of Denton, Texas approve the
Transaction; being approved by a majority of its members present and voting; and
WHEREAS, the City Council has further determined and finds that there will be other
documents incident to the Power Purchase Agreement, to be entered into by Denton and UNT
during the course of such Power Purchase Agreement, that are incident to or related to said
Agreement, and such other documents related thereto as from time to time may be executed by
the City of Denton, Texas and /or UNT, in connection therewith; should be excepted from public
disclosure, as permitted by the provisions of §552.133 of the Texas Government Code, as
documents that are reasonably related to a competitive electric matter, the disclosure of which
documents would provide an advantage to the competitors or prospective competitors of Denton
Municipal Electric ( "DME "); and
WHEREAS, the City Council has further determined that it is in the public interest that it
should exercise its right under the Texas Government Code to lawfully safeguard and keep
certain of these documents sealed, as they are competitive documents which contain competitive
electric commercial and financial information; and
WHEREAS, the City Council finds that there is no divestiture, sale or other disposition of
the property of any utility of the Denton, and therefore, that no public election is required
pursuant to the Charter of the City of Denton, Texas ( "Charter "); and
WHEREAS, the City Council finds that said Transaction involves Denton selling to
UNT, all of UNT's power and energy requirements for a contractual term of years beginning
effective as of September 30, 2013, as provided by this ordinance; and
WHEREAS, the City Council finds that the Transaction as provided by this ordinance,
will not impair the ability of Denton to comply with the provisions of any of its utility revenue
bonds, as amended, which are issued and outstanding; and
WHEREAS, the City Council finds that §252.022(a)(15) of the Texas Government Code
is applicable to this Transaction and that the competitive bidding laws of this State are not
applicable to the sale by the City of electricity; and
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WHEREAS, Denton desires to enter into such other arrangements in support of the
Agreement with UNT which are incident and related to the Agreement, and to take such
additional actions as the City Manager or his designee, shall determine to be necessary and
advisable to effectuate the matters set forth herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Council hereby approves and authorizes the City Manager and
City Secretary, to execute, attest and deliver respectively, the Power Purchase Agreement, by
and between the City of Denton, Texas and the University of North Texas, a University
operating under the laws of the State of Texas, under the terms and conditions set forth therein.
Said Agreement is not attached hereto, but is marked as Exhibit "A;" and in accordance with
Section 6 of this ordinance below, such Agreement shall be sealed in accordance with Texas law
as a "Public Power" document, and the same is incorporated herewith by reference. The City
Council further authorizes that the Agreement is approved with any ancillary instruments,
confirmations, orders, changes and other additions that are in substantial compliance with said
Agreement as the City Manager may approve, and to consummate the execution and delivery
thereof on behalf of the City of Denton by or at the direction of the City Manager.
SECTION 2. The City Council, hereby approves and authorizes the City Manager and
City Secretary to execute, attest and deliver respectively, all other documents which are incident
and related to the Agreement referenced herein; and to take such additional actions as the City
Manager shall determine to be necessary and advisable to effectuate the matters set forth above.
SECTION 3. The City of Denton, the Mayor, the City Manager, the City Attorney or
their designees be, and each of them individually hereby is, authorized and empowered to
perform all such acts and obligations as required with respect to the Agreements and documents
described herein.
SECTION 4. The Mayor, the City Manager, the City Attorney or their designees be, and
each of them individually hereby is, authorized, empowered and directed to negotiate, deliver
and perform all such acts and things and to sign all such documents, including without limitation,
certificates, contracts, assignments, licenses, confirmations, orders, agreements, directions,
instruments and statements, each together with such amendments, changes and additions thereto
as the Mayor, the City Manager, the City Attorney or their designees shall determine to be
necessary or advisable to effectuate the matters set forth herein; with any such determination to
be conclusively evidenced by the taking or causing to be taken of such action or the execution
and delivery of any such document, by the Mayor, the City Manager, the City Attorney or their
designees.
SECTION 5. All prior actions taken by the Mayor, the City Manager, the City Attorney
or their designees in furtherance of the foregoing matters be and hereby are ratified, approved
and authorized in all respects as of the dates and times such actions were taken.
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SECTION 6. Immediately following the execution and delivery of the documents
described as the Agreement and any other documents executed incident to such Agreement, as
provided for in this ordinance, the City Secretary is hereby directed to seal and maintain said
documents in her custody and control, as documents excepted from public disclosure under the
provisions of §552.133 of the Texas Government Code (the "Public Power Exception "); unless
otherwise lawfully ordered to disclose said documents.
SECTION 7. The expenditure of funds as provided for in this ordinance is hereby
authorized.
SECTION 8. This ordinance shall become effective, and is hereby retroactively
ratified, confirmed and nd approved as of September 30, 2013.
PASSED AND APPROVED this the ' °" l day of IL � "
, 2013.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
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APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
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