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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 0 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. 3 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 1 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY B �,, El