2016-304oxDnvaNCE No. 2016-304
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, A TEXAS
HOME-RULE MUNICIPAL CORPORATION, PROVIDING FOR, AUTHORIZING, AND
APPROVING THE EXECUTION BY THE CITY MANAGER, OR HIS DESIGNEE, OF AN
ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT FOR THE
CONSTRUCTION OF AN ELECTRIC POWER GENERATION FACILITY BETWEEN THE
CITY OF DENTON AND BURNS AND MCDONNELL ENGINEERING COMPANY,INC.
A MISSOURI CORPORATION; APPROVING THE EXECUTION OF SUCH OTHER AND
FURTHER RELATED DOCUMENTS DEEMED NECESSARY TO EFFECTUATE THIS
TRANSACTION BY THE CITY MANAGER OR HIS DESIGNEE, WHICH ARE 1NCIDENT
OR RELATED THERETO; CONFIRMING AND RATIFYING THAT THE CITY OF
DENTON, ITS CITY MANAGER, AND ITS CITY ATTORNEY 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, CITY MANAGER, AND CITY
ATTORNEY, OR THEIR DESIGNEES, IN FURTHER.ANCE OF THE FOREGOING
TRANSACTION; AND DETERMINING THAT SPECIFIC INFORMATION CONTAINED
IN SAID DOCUMENTS INVOLVED IN THIS TRANSACTION PERTAIN TO A
"COMPETITIVE ELECTRIC MATTER" AS SET FORTH UNDER THE PROVISIONS OF
§§551.086 AND 552.133 OF THE TEXA5 GOVERNMENT CODE, AS AMENDED;
ADOPTING SIGNIFICANT RECITATIONS, FINDINGS AND CONCLUSIONS, AS ARE
SET FORTH IN THE PREAMBLE OF THIS ORDINANCE; THAT THE CONSTRUCTION
OF THE ELECTRIC POWER GENER.ATION PLANT BY THE CITY UNDER THE TERMS
OF THIS ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT ARE
IN THE PUBLIC WELFARE; AUTHORIZING THE EXPENDITURE OF FUNDS
THEREFORE; PROVIDING AN EFFECTIVE DATE.
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 "Engineering,
Procurement and Construction Agreement" between the City of Denton, Texas and Burns and
McDonnell Engineering Company, Inc., a Missouri corporation, (hereafter the "Transaction")
was submitted for final consideration to the Denton Public Utilities Board on August 8, 2016; 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 proceeded to take final action
and recommend to the City Council that the Transaction by and between Denton and Burns and
McDonnell Engineering Company, Inc. be recommended for approval by a vote of six (6) in
favor to zero (0) opposed being a majority vote of all PUB members present, in substantially the
form of the Equipment Supply and Services Contract presented to it; 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, the Council has discussed, deliberated, and considered the
Transaction, the subject of this ordinance, in a Closed Meeting of the City Council on September
13,2016, after receiving a legal opinion of counsel that the Transaction is a proper item for
consideration in its Closed Meeting, which item involves competitive electric matters, including
business and commercial information, which if disclosed, would give advantage to its
competitors or prospective competitors; and
WHEREAS, the City Council has further determined and finds that specific information
contained in the "Engineering, Procurement and Construction Agreement' to be entered into by
and between Denton and Burns and McDonnell Engineering Company, Inc., and similar type
information contained in all other documents which are related thereto as from time to time may
be executed by the City of Denton, Texas and/or Burns and McDonnell Engineering Company,
Inc., in connection therewith should be excepted from public disclosure, as permitted by the
provisions of §552.133 of the Texas Government Code, as information that is reasonably related
to a competitive electric matter ("Competitive Information"), the disclosure of which 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
the Competitive Information contained in the documents in the preceding paragraph sealed, as
it is competitive electric and financial information; and
WHEREAS, the City Council finds that said Transaction involves the construction of an
electric power generating facility by Burns and McDonnell Engineering Company, Inc.; and that
such Transaction is related to Denton's Renewable Denton Plan approved by the City Council
by resolution dated June 21, 2016 (Resolution No. R2016-014) and will provide Denton the
ability to generate electricity during peal< loading times while maintaining a consistent and
reliable supply of electricity thereby benefiting the ratepayers of DME; and
WHEREAS, the Council, having further convened an open public meeting on this item
on the September 20, 2016, and having discussed the same, has considered all proposals
provided by other firms in response to Denton's Request For Proposals and finds and concludes
that Burns and McDonnell Engineering Company, Inc. should be selected by Denton to
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WHEREAS, Denton desires to enter into such other arrangements in support of the
Engineering, Procurement and Construction Agreement (hereafter "Agreement") with Burns
and McDonnell Engineering Company, Inc., which are incident and related to the said
Agreement, and to take such additional actions as the City Manager, or his designee, shall
determine to be necessary and advisable to consummate and effectuate the matters set forth
herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The recitations contained in the above Preamble are incorporated herewith
and are considered to be a part of this Ordinance.
�F_�:"�'���1 �. The City Council, hereby approves and authorizes the City Manager and City
Secretary, or their designees, to execute and attest respectively, the Engineering, Procurement and
Construction Agreement, by and between the City of Denton, Texas and Burns and McDonnell
Engineering Company, Inc., a Missouri corporation, under the terms and conditions set forth in
Exhibit "A," attendant with all Exhibits attached thereto, and made a part hereof, with such
ancillary instruments, changes and additions which are in substantial compliance with said
Agreement as the City Manager, or his designee, 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, or
his designee.
SECTION 3. The City Council, hereby approves and authorizes the City Manager and City
Secretary, and their respective designees, to execute and attest respectively, all other documents
which are incident and related to the Engineering, Procurement and Construction Agreement
referenced herein, 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 above.
SECTION 4. 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 Engineering, Procurement and Construction Agreement described
herein.
SECTION 5. 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, each together with such amendments, changes
and additions thereto as the City Manager, the City Attorney or their respective designees shall
determine to be necessary or advisable to effectuate the matters set forth herein, any such
deterrnination to be conclusively evidenced by the taking or causing to be taken of such action or
the execution and delivery of any such documents by the City Manager, the City Attorney or their
designees.
`�L;�i`IC)`N C. All prior actions taken by the City Council, the City Manager, the City
Attorney, or their designees, in furtherance of the foregoing matters be and hereby are ratified,
confirmed, approved and authorized in all respects as of the dates and times such actions were
taken.
SECTION 7. Immediately following the execution and delivery of the documents
described as the Engineering, Procurement and Construction Agreement 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.
�1�;C.:�'I�1� �. This ordinance and a copy of the Engineering, Procurement and Construction
Agreement, including the related Exhibits and Attachments, as redacted of Competitive
Information shall be open for public inspection. However, the non-redacted Engineering,
Procurement and Construction Agreement, including the related Exhibits and Attachments,
appended to this Ordinance shall not be produced for public inspection, but shall be sealed, as
provided for in Section 7 above.
SECTION 9. The expenditure of funds as provided for in this ordinance is hereby
authorized.
SECTION 10. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the� Gt of Se tember, 2016.
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CHRIS WAeI" �, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
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BY� ' ," ,� � � � �,�i ��
APPRO��;I�� AS 7��� LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
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