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21-158221-1582 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME -RULE MUNICIPAL CORPORATION, APPROVING A POWER PUCHASE AGREEMENT BETWEEN THE CITY AND TEXAS WOMAN'S UNIVERSITY, A TEXAS HIGHER EDUCATION INSTITUTION; PROVIDING FOR THE EXPENDITURE OF FUNDS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Denton, a Texas home -rule municipal corporation, ("City") and Texas Woman's University, a Texas institution of higher education, ("TWU") are both governed by the constitution and laws of the State of Texas; and WHEREAS, the City owns and operates an electric utility which provides electric energy and related services to TWU; and WHEREAS, the City and TWU have agreed to terms and conditions for the City's provision of electric energy and related services to TWU and those are set forth in a power purchase agreement ("PPA") which is attached as Exhibit "A" and incorporated herein for all purposes; and WHEREAS, on August 9, 2021, the PPA was discussed, considered, and deliberated by the City's Public Utilities Board and, by a vote of 5 in favor and 0 in opposition, it recommended approval of the same to the City Council; and WHEREAS, the City Council finds the PPA should be sealed and exempted from public disclosure, as permitted by the provisions of §552.133 of the Texas Government Code, as a document that is reasonably related to a competitive electric matter, the disclosure of which would provide an advantage to the competitors or prospective competitors of the City's municipal electric operation ("Competitive Information"); and WHEREAS, the City Council finds that it is in the public interest that it exercises its right under the Texas Government Code to lawfully safeguard and keep the PPA sealed, as it contains competitive electric commercial and financial information; and WHEREAS, the City Council finds that it is in the public interest that a copy of the PPA, redacted of Competitive Information, be made available to the public; and WHEREAS, the City Council further finds that the PPA is in the best interest of the customers; NOW, THEREFOR, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations contained in the preamble of this ordinance are incorporated herein by reference as findings of the City Council. SECTION 2. The City Council approves and authorizes the City Manager, or designee, and City Secretary, or designee, to execute, attest and deliver, respectively, the power purchase agreement, attached as Exhibit "A", with Texas Woman's University. SECTION 3. The City Council approves and authorizes the City Manager, or designee, to take such additional actions as the City Manager, or designee, determines to be necessary and advisable to continue to effectuate the purpose, terms and conditions of the PPA. SECTION 4. Immediately following the execution, attestation, and delivery of the PPA, the City Secretary is directed to seal and maintain the PPA in her custody and control, as documents excepted from public disclosure under the provisions of Texas Government Code, Section 5 52.13 3 unless otherwise lawfully ordered to disclose said documents. SECTION 5. A copy of the PPA, redacted of Competitive Information, attached Exhibit "B", shall be available to the public for inspection and copying. Absent lawful order, the original PPA shall not be available for public inspection or copying and will be sealed as provided for in the preceding section. SECTION 6. The expenditure of funds as provided for in this ordinance is authorized. SECTION 7. This ordinance shall become effective immediately upon its passage and approval. The motion to approve this ordinance was made by --S-e-sS-p- . S and seconded by 'U&; Ct-n ' \� QCT , the ordinance was passed and approved by the following vote [ --? - _�Oj: Gerard Hudspeth, Mayor: %/ Vicki Byrd, District l: Brian Beck, District 2: � Jesse Davis, District 3: f Alison Maguire, District 4: ,✓ Deb Armintor, At Large Place 5: ./ Paul Meltzer, At Large Place 6: 1/ Abstain Absent PASSED AN APPROVED this the day of 'G U S _ 2021. GERARD HUDSPETH, MAYOR ATTEST: ROSA RIOS, CITY SECRETARY i * s APPROVED AS TO LEGAL FORM: CATHERINE CLIFTON, INTERIM CITY ATTORNEY +'., oF'•••..��..... .••'' • �++` Digimllyngnedhy Cathenne Cllhon ',00���J 1V I�*��\ ow,dc am,d[=[ityo a, d[<,daa ����r111111��%+ Cwvemment ou=LegaLmxathedne CIIRan email=Caihenne.Cliftonprityofden[orteom BY: D -2021.W ll 2329,03-05'00' POWER PURCHASE AGREEMENT This Power Purchase Agreement ("Agreement") is between the City of Denton, a Texas home -rule municipal corporation ("City"), and Texas Woman's University, a Texas higher education institution ("TWU"). The Parties agree as follows: Recitals Whereas, the City owns an electric utility that has a legislatively created franchise to provide electric power to all customers in the City's electric utility franchise territory; Whereas, TWU, having Facilities located in the City's electric utility franchise territory, must purchase all its electric power from the City; Whereas, the City has been providing electric power and related services to the two primary voltage interconnection points with TWU under the terms of power purchase agreement effective October 1, 2019 which expires September 30,2021 ("2019 PPA"); Whereas, the Parties desire to terminate and replace the 2019 PPA with this Agreement; Now, therefore, for and in consideration of the recitals set forth above, the covenants, terms, conditions and releases herein contained, the receipt and sufficiency of which are acknowledged, the Parties warrant, represent and agree to the following terms: Agreement Section 1. Definitions "Business Day" means a day on which the City is open for business as prescribed by the annual calendar of holidays published by the City from time to time; and a Business Day shall begin at 8:00 a.m. and close at 5:00 p.m. local time for each Party's principal place of business. POWER PURCHASE AGREEMENT Page 1 of 12 IMPORTANT: This document may contain information that is confidential, commercially -sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. "Damages" shall mean any and all claims, liabilities, losses, damages, causes of action, fines, interest, awards, penalties, litigation, lawsuits, administrative proceedings, administrative investigations, costs and expenses (including reasonable attorney's fees court costs and other costs of suit, arbitration, dispute resolution or other similar proceedings), including for injury, illness or death and including those owed to third parties (whether asserted in contract, in warranty, in tort, by statute or otherwise), but in all events subject to the Liability Limitations in Section 11 of this Agreement. "Delivery Point(s)" means the point(s) where the electricity leaves the lines and/or apparatus owned by City and enters the lines and/or apparatus owned by TWU. "Effective Date" means September 1, 2021. "Energy Cost Adjustment (ECA)" has the meaning of a rate contained within the City's Schedule of Rates for Electric Service which is the electric utility's projected cost of electric load purchases from ERCOT plus all projected electric utility power/energy related costs for that same period. "ERCOT" means Electric Reliability Council of Texas. "Facilities" shall mean the above ground and the underground distribution lines, the transmission lines, all equipment, and infrastructure of City located on TWU property. "Force Majeure" means an event or circumstance which prevents one Party from performing its obligations under this Agreement, which is not within the reasonable control of or the result of the negligence of the claiming Party, and which by the exercise of due diligence the claiming Party is unable to overcome or avoid or cause to be avoided. Force Majeure shall include, without limitation, strike, stoppage in labor, riot, significant fire, flood or ice damage, tornados, invasion, insurgency, civil war, commotion, insurrection, blockades, embargoes, sabotage, epidemics, explosions, acts of terrorism, military or usurped power, order of any court granted in any bona fide adverse legal proceeding or action, order of any civil, military, or governmental authority, acts of God or public enemies, acts or omissions of a transmission and distribution utility, and material changes in law; provided, however, that existence of the foregoing factors shall not be sufficient to conclusively or presumptively prove the existence of a Force Majeure event. "Good Utility Practice" has the meaning ascribed thereto in Public Utility Code of Texas, Substantive Rule 25.5(31) or its successor. "Law" means any law, rule, regulation, order, writ, judgment, decree, or other legal or regulatory determination by a court, regulatory agency, regional transmission organization, or governmental authority of competent jurisdiction. "Power" means energy expressed in megawatt hours (MWh) or capacity expressed in megawatts (MW), as applicable. Energy supplied shall be of the character commonly known as three-phase, sixty -hertz electric energy that is delivered at the nominal voltage of the Delivery Point(s). POWER PURCHASE AGREEMENT Page 2 of 12 IMPORTANT: This document may contain information that is confidential, commercially -sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. "Transmission Cost Recovery Factor (TCRF)" has the meaning of a rate contained within the City's Schedule of Rates for Electric Service which recovers the costs of transmission service within the boundaries of the Electric Reliability Council of Texas (ERCOT) region which are billed and charged to the City. Section 2. 2019 PPA The Parties agree that the: (a) 2019 PPA is terminated as of the Effective Date of this Agreement without any further action required by either Party to terminate the same; and (b) All obligations under the 2019 PPA have been met and that there are no continuing obligations of either Party. Section 3. Term of Agreement The term of the Agreement shall be from the Effective Date to September 30, 2023. Upon the expiration of the original term or first renewal term, the term of this Agreement shall be automatically renewed for up to two (2) additional two (2) year periods, unless terminated in writing by either party 60 days prior to expiration of the current term. During any renewal term, the terms, conditions and provisions set forth in this Agreement shall remain in effect unless otherwise negotiated by the parties Section 4. Provision of Electric Service 4.1 4.2 Title and Risk of Loss. City warrants that it will deliver Power to TWU free and clear of all liens, claims, and encumbrances arising prior to the Delivery Point(s). Title to and any risk of loss related to the delivery of the Power shall transfer from City to TWU at the Delivery Point(s). 4.3 Condition of Equipment. TWU represents to City that TWU's 13.2kV electrical facilities comply with all applicable codes and standards. 4.4 Grant of Access. TWU shall, when necessary, execute and deliver to City rights of access covering all Facilities in all locations served by City on TWU owned and/or controlled property. Upon notice to TWU, City shall have the right to enter TWU's premises for temporary construction and to effect repairs to the Facilities as needed. POWER PURCHASE AGREEMENT Page 3 of 12 IMPORTANT: This document may contain information that is confidential, commercially -sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Section 6 — Metering 6.1 Measurement. Charges for Power are calculated using measurements from metering equipment owned, installed and read by City. City shall report measurement data to TWU in each monthly invoice. Electric meter services will be performed by City, at its sole expense, in accordance with the applicable rate tariff as calculated under Section 5 and Good Utility Practices. 6.2 Meter Testing. City will test its meters in accordance with the schedule and standards of the American National Standards Institute, Inc. Upon notice from TWU, City will, at TWU's sole expense, perform additional tests of the accuracy of its meters within a reasonable time after notice is received. POWER PURCHASE AGREEMENT Page 4 of 12 IMPORTANT: This document may contain information that is confidential, commercially -sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Following the completion of any test, City will promptly advise TWU of the date of the test, test results, who performed the test, and the date of the removal of any meter(s). 6.3 Invoice Adjustment Due to Meter Inaccuracy. If any meter is determined to be outside the accuracy standards established by ANSI, proper correction will be made of the measurement data, and TWU or City may adjust their respective charges based on the corrected meter data. Section 7 - Billing 7.1 Invoicing. Within fifteen (15) Business Days after the end of each month of the Term, the City shall deliver to TWU an invoice reflecting the amounts due for the prior month for Power delivered to TWU by the City. TWU's payment for each invoice shall be due on the 10th day following TWU's receipt of an invoice for such electric service. 7.2 Disputed Amounts. Either Party may, in good faith, dispute the correctness of any invoice. In the event an invoice, portion of an invoice, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of such invoice shall be required to be made when due, with notice of the objection given to the other Party in writing an stating the basis for the dispute, including all supporting calculations. Payment of the disputed amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any required payment plus interest thereon accrued from and including the due date to, but excluding, the paid date, shall be included in the next invoice issued after the dispute has been resolved. Section 8 — Events of Default and Remedies 8.1 Event of Default. If any of the following events occur, then an Event of Default shall exist as to such Party ("Defaulting Party") and the other Party ("Non -Defaulting Party") shall be entitled to exercise the remedies set forth in this Section. (a) Failure to Pay. A Party fails to make, when due, any payment required pursuant to this Agreement (other than the amounts disputed in good faith), and such failure is not remedied within five (5) Business Days after written notice of such failure from the other Party. (b) Material Breach. A Party is in material breach of its obligations under this Agreement (other than an obligation to make payment, an obligation that is otherwise specifically set forth in this Section 4 as a separate Event of Default or an obligation in respect of which this Agreement provide a remedy that is stated to be an exclusive remedy), and such breach is not remedied within thirty (30) days after written notice of such breach from the other Party (provided, however, that (i) to the extent such breach is not reasonably capable of being remedied within the thirty (30) day remedy period specified above, but is reasonably capable of being remedied, and (ii) such Party has commenced and is continuing reasonable efforts to remedy such breach, such Party shall have ninety (90) days after written notice of such breach from the other Party to remedy such breach). 8.2 Remedies. If an Event of Default occurs and is continuing, the Non -Defaulting Party shall have the right to exercise one or more of the following remedies: POWER PURCHASE AGREEMENT Page 5 of 12 IMPORTANT: This document may contain information that is confidential, commercially -sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. (a) Termination. To terminate this Agreement, the Non -Defaulting Party shall provide notice to the Defaulting Party as soon as is practicable. The date of early termination shall be no earlier than the date such notice is effective and not later than twenty (20) days after the date such notice is effective. (b) Other Remedies. The Non -defaulting party may exercise remedies as otherwise provided for in this Agreement or available at law or in equity, including the recovery of Damages suffered by the Non -Defaulting Party as a result of the termination, as reasonably calculated by the Non- Defaulting Party, and any other amounts previously accrued under this Agreement and owed to the Non -Defaulting Party. Each Party shall use commercially reasonable efforts to mitigate its Damages resulting from the other Party's breach of or default under this Agreement, including upon any termination hereof as a result of an Event of Default of the other Party. Section 10 — Force Majeure In the event that either of the Parties should be delayed in or prevented from performing or carrying out any of the agreements, covenants, and obligations under this Agreement by reason of Force Majeure, then, during the pendency of such Force Majeure but for no longer period, the obligations of the Party affected by the event shall be suspended to the extent required. Neither Party shall be liable to POWER PURCHASE AGREEMENT Page 6 of 12 IMPORTANT: This document may contain information that is confidential, commercially -sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. the other Party for, or on account of, any loss, damage, injury, or expense resulting from or arising out of any such delay or prevention from performing; provided, however, the pendency of such Force Majeure will be of no greater scope and of no longer duration than is reasonably required by the Force Majeure, and the Party suffering such delay or prevention shall use its commercially reasonable efforts to provide the other Party with written notice within such period as is commercially reasonable under the circumstances after the occurrence of such event and shall take all commercially reasonable efforts to mitigate the effects of such event of Force Majeure and to remove the cause(s) thereof. Notwithstanding, Force Majeure and this Section 10 shall not be used to impose a materially higher price for electricity purchased by TWU without TWU's express consent. Neither Party shall be required by the foregoing provisions to settle a strike affecting it except when, according to its best judgment, such a settlement seems advisable. Section 11— Limitations and Warranties 11.1 Limitation of TWU Liabilitv. EXCEPT AS PROVIDED FOR IN THIS AGREEMENT OR AS DETERMINED AT THE CONCLUSION OF ANY DISPUTE RESOLUTION PROCESS OUTLINED HEREIN, THE SOLE LIABILITY OF TWU AND THE SOLE REMEDY OF CITY UNDER THIS AGREEMENT IS FOR TWU TO TIMELY PAY AND CITY TO COLLECT, WHEN DUE, AMOUNTS CHARGED FOR POWER ACTUALLY DELIVERED BY CITY TO TWU AND FOR SERVICES RENDERED BY CITY TO TWU, OR OBLIGATIONS ARISING UNDER AND DESCRIBED IN SECTION 4, "PROVISION OF ELECTRIC SERVICE " OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, TWU SHALL NOT BE LIABLE TO CITY FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES, LOST PROFITS, OR OTHER BUSINESS INTERRUPTION DAMAGES, WHETHER BASED ON STATUTE, IN TORT OR CONTRACT, OR ANY OTHER ACT OR THING DUE TO CAUSES BEYOND TWU's CONTROL, OR TO THE NEGLIGENCE OF TWU, ITS EMPLOYEES OR CONTRACTORS, EXCEPT TO THE EXTENT THAT THE DAMAGES ARE OCCASIONED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF TWU. 11.2 Limitation of City Liabilitv. TO THE EXTENT ALLOWED BY THE LAWS OF THE STATE OF TEXAS, CITY'S LIABILITY FOR DAMAGE OR INJURY, INTERRUPTION OF SERVICE, AND DISCLAIMER OF WARRANTIES SHALL BE AS SET FORTH IN THE APPLICABLE PROVISIONS OF THE GENERAL TERMS AND CONDITIONS OF CITY'S SCHEDULE OF RATES FOR ELECTRIC SERVICE AND PROVISIONS OF APPLICABLE TEXAS AND FEDERAL LAW. Section 12 — Audit Each Party (and its representatives) has the right, at its sole expense and during normal working hours, to examine the records of the other Party to the extent necessary to verify the accuracy of any statement, charge, or computation made pursuant to this Agreement. If requested, a Party shall provide to the other Party statements evidencing the quantities of Power delivered at the Delivery Point(s). If any such examination reveals any inaccuracy in any statement, either on the part of the City or TWU, then the necessary adjustments with such statement and the payments thereof will be promptly made and shall bear interest calculated in accordance with Texas Government Code, Chapter 2251, from the date the overpayment or underpayment was made until the amount is fully paid; provided, however, that no adjustment for any statement or payment will be made unless an objection to the accuracy thereof was made prior to the lapse of two (2) years from the date of issuance of the statement audited. POWER PURCHASE AGREEMENT Page 7 of 12 IMPORTANT: This document may contain information that is confidential, commercially -sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Section 13 - Confidentiality To the extent permitted by law, the Parties agree to maintain the confidentiality of this Agreement and all information acquired in the performance of the Agreement relating to the activities or operations of the other Party. This document is intended to be a Power Purchase Agreement and is therefore exempt from public disclosure under the provisions of Texas Government Code, Sec. 552.133(a -1)(1)(C) and (F). The Parties each agree not to divulge any such information to any third party without first providing written notice to the other Party and giving such Party the reasonable opportunity to avail itself of all rights and remedies as set forth in Chapter 552 of the Texas Government Code, commonly referred to as the Texas Public Information Act. Section 14 — Representations and Warranties Each Party represents and warrants to the other Party that: (a) it has taken all necessary action, to authorize the execution, delivery and performance of this Agreement and the transactions contemplated hereby; (b) this Agreement is the valid and binding obligation of each Party, enforceable in accordance with its terms, subject to laws of general application relating to creditor's rights, bankruptcy, insolvency and the relief of debtors; (c) neither the execution and delivery of this Agreement nor compliance with its respective terms and provisions will violate, be prohibited by, conflict with, result in a breach or termination of, or a default under any of the terms, conditions or provisions of its organizational documents; any statute, regulation, judgment, order, decree, injunction, stay, restraining order or ruling to which it is a party or subject; or any material agreement to which it is a party; and (d) it is the full and sole owner of the claims, demands, actions, or causes of action arising from or in any way relating to the circumstances and conditions made the basis of this Agreement. Section 15 - Miscellaneous 15.1 Entire Agreement. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and shall completely and fully supersede all prior understandings or agreements, both written and oral. No representations, inducements, promises, or agreements, oral or otherwise, have been relied upon or made by any Party, or anyone on behalf of a Party, that are not fully expressed in this Agreement. The section titles in this Agreement are only for purposes of convenience and do not form a part of this Agreement and will not be taken to qualify, explain or affect any provision thereof. 15.2 Severability. If any article, section, phrase or portion of this Agreement is held to be invalid, illegal or unenforceable for any reason, such article, section, phrase or portion so adjudges will be deemed separate, severable and independent and replaced automatically by a legal, valid and enforceable provision which most nearly accomplishes and reflects the original intention of the Parties. This Agreement, as so modified, shall remain in full force and effect and shall not be invalidated or rendered POWER PURCHASE AGREEMENT Page 8 of 12 IMPORTANT: This document may contain information that is confidential, commercially -sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. illegal or unenforceable or otherwise affected thereby. If the application of any provision of this Agreement to any Person or circumstance is determined to be void, unlawful or unenforceable, then that provision shall remain valid, lawful, and enforceable as applied to other Persons and circumstances. 15.3 Amendment/Binding Effect. This Agreement shall become effective and binding upon the Parties as of the Effective Date upon the execution and delivery of this Agreement by each of the Parties. This Agreement may not be amended, changed, modified, or altered unless such amendment, change, modification, or alteration is in writing and signed by both Parties. This Agreement shall inure to the benefit of all and shall be binding upon the Parties and their respective successors and assigns. 15.4 No Waiver. No waiver of any of the terms of this Agreement shall be binding unless in writing and signed by all Parties hereto. No waiver of any terms of this Agreement shall be deemed a waiver of any subsequent breach or default of the same or similar nature. 15.5 Governing Law; Venue. This Agreement shall be governed by and shall be construed, enforced, and performed in accordance with the Laws of the State of Texas, without regard to principles of conflicts of law that would require the application of the laws of any other jurisdiction. Each Party agrees to the exclusive jurisdiction of the federal and state courts in Denton County, Texas as necessary to enforce this Agreement. 15.6 Waiver of Jury Trial. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM BY THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. 15.7 Contract Claims Resolution. The dispute resolution process that is provided for in Texas Government Code, Chapter 2260 shall be used by the Parties to resolve any unresolved claim for breach of contract or any other claimed default arising under this Agreement. Pursuant to said Chapter 2260, the submission, processing, and resolution of any claim made by City and/or TWU is governed by the published rules adopted by the Office of the Texas Attorney General, as are currently effective, hereafter enacted, or subsequently amended. 15.8 Further Assurances. Each Party shall deliver or cause to be delivered to the other Party such instruments, documents, statements, certificates of its officers, accountants, engineers or agents as to matters as may be reasonably requested, and shall make available, upon reasonable request, personnel and records relating to the Party's Facilities required to deliver electric power from the City to TWU at TWU's two interconnection points with the City to the extent required to carry out the purposes of this Agreement, to fulfill any legal obligation or regulatory reporting requirement, or to ensure the reliability of the City's electric distribution system. 15.9 Further Instruments. The Parties expressly covenant and agree that they will each execute such other and further instruments and documents as are or may become reasonably necessary or convenient to effectuate and carry out this Agreement. POWER PURCHASE AGREEMENT Page 9 of 12 IMPORTANT: This document may contain information that is confidential, commercially -sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 15.10 No Rights of Third Parties. This Agreement is intended only for the Parties' benefit and nothing in this Agreement may be construed to create any duty to, or any standard of care concerning, or liability to, any person not a party to this Agreement. 15.11 Joint Effort. This Agreement has been prepared by the joint efforts of the Parties or the attorneys for the Parties and each Party acknowledges and agrees that the general rule of contract construction providing that the provisions of a contract are to be strictly construed against the drafter of the agreement is hereby waived. 15.12 No Reliance. Neither Party is relying on any promise, undertaking or understanding not expressly set forth herein. 15.13 No Joint Venture or Lending of Credit Intended. Nothing in this Agreement shall be construed to create a partnership, joint venture, or other legal entity between the Parties. The rights and obligations of the Parties are to be governed strictly by this Agreement, and it is not intended that there shall be any lending of credit by one Party to the other or that either Party shall be entitled to create any obligation binding on the other Party that is not specifically provided for herein. Nothing herein shall be construed as a loan or pledge of credit or assets by the State of Texas or TWU as prohibited by Article 3, Section 50 of the Texas Constitution, or otherwise. Nothing herein shall be construed as a loan or pledge of credit or assets by the State of Texas or City as prohibited by Article 3, Section 52 of the Texas Constitution, or otherwise. 15.14 Counterparts. This Agreement may be executed in multiple counterparts, with the same effect as if all Parties hereto had signed the same counterpart. All counterparts shall be construed together and shall constitute one agreement. 15.15 Survival. All provisions of this Agreement that are expressly or by implication to come into or continue in force and effect after the expiration or termination of this Agreement shall remain in effect and be enforceable following such expiration or termination including but not limited to Section 5 — Price and Delivery Points, Section 9 — Change in Law, Section 11 — Limitations and Warranties, Section 13 — Confidentiality and Section 14 — Representations and Warranties. 15.16 Required Certifications. The provisions contained in Exhibit A "Standard Contract Addendum" are incorporated herein to the extent that they are applicable to this Agreement. 15.17 Assignment. This Agreement may not be assigned by either Party. 15.18 Notices. All notices, requests, statements, or payments shall be made in writing as specified below. Notices required to be in writing shall be delivered by letter, electronic media, facsimile, or another documentary form. Notice shall be deemed to have been received by the close of the day on which it was transmitted or hand delivered (unless transmitted or hand delivered after the close of recipient's business or on a day on which recipient is not open for business, in which case it shall be deemed received at the close of the next day on which recipient is open for business). Notice by overnight mail or overnight courier shall be deemed to have been received one (1) day after it was sent (unless delivered after the close of recipient's business or on a day on which recipient is not open for business, in which case it shall be deemed received on the next day on which recipient is open for business). A Party may change its addresses by providing notice of same in accordance herewith. POWER PURCHASE AGREEMENT Page 10 of 12 IMPORTANT: This document may contain information that is confidential, commercially -sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. If intended for City, to: Denton Municipal Electric 1659 Spencer Rd Denton, TX 76205 Fax No.: (940) 349-7334 Phone No.: (940) 349-8487 Attn: General Manager and City of Denton City Attorney 215 E. McKinney Denton, TX 76201 Fax No.: (940) 382-7923 Phone No.: (940) 349-8333 To TWU: and City of Denton, Texas 215 East McKinney Street Denton, TX 76201 Fax No.: (940) 349-8596 Phone No.: (940) 349-8560 Attn: City Manager Texas Woman's University and Vice President for Finance and Administration P.O. Box 425588 Denton, TX 76204 Phone No.: (940) 898-3506 Fax No.: (940) 898-3509 Texas Woman's University Office of General Counsel P. O. Box 425497 Denton, TX 76204 Phone No.: (940) 898-3250 Fax No.: (940) 898-3244 15.20 Electronically Transmitted Signatures. Signatures to this Agreement, any amendment hereof, delivered electronically via facsimile, .pdf, .jpeg, .TIF, .TIFF or similar electronic format shall be deemed an original signature and fully effective as such for all purposes. 15.21 Understanding. The Parties represent that they fully understand this Agreement and its terms, and, with this full understanding, voluntarily enter into this Agreement as evidenced by signing it below. ----- SIGNATURE PAGES FOLLOW ----- POWER PURCHASE AGREEMENT Page 11 of 12 IMPORTANT: This document may contain information that is confidential, commercially -sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. ATTESTED: ROSA RIOS, CITY SECRETARY APPROVED AS TO FORM: CATHERINE CLIFTON, INTERIM CITY ATTORNEY CITY OF DENTON, A TEXAS HOME -RULE MUNICIPAL CORPORATION SARA HENSLEY, INTERIM CITY MANAGER, under the authority granted in Ordinance No. 21 - Executed on the day of 2021. TEXAS WOMAN'S UNIVERSITY, A TEXAS HIGHER EDUCATION INSTITUTION Signature Printed Name Title Executed on the day of 2021. APPROVED AS TO FORM: KIMBER SUMMERS, ASSISTANT GENERAL COUNSEL POWER PURCHASE AGREEMENT Page 12 of 12 IMPORTANT: This document may contain information that is confidential, commercially -sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. TEXAS WOMAN'S U N I V E R S I T Y This Standard Contract Addendum ("Addendum") between Texas Woman's University ("TWU") and the City of Denton ("Vendor") is incorporated by reference into the attached Power Purchase Agreement dated ("Agreement") between TWU and Vendor. TWU and Vendor may be referred to singularly as a "Party" and collectively as the "Parties." Notwithstanding anything in the Agreement to the contrary, if there is any conflict or contradiction between the provisions of the Agreement and those in this Addendum, this Addendum will control and Vendor waives any claim to the contrary. 1. PAYMENT OF DEBT OR DELINQUENCY TO THE STATE. Pursuant to Sections 2107.008 and 2252.903, Texas Government Code, Vendor agrees that any payments owing to Vendor under the Agreement may be applied directly toward any debt or delinquency that Vendor owes the State of Texas or any agency of the State of Texas regardless of when it arises, until such debt or delinquency is paid in full. 2. TAX CERTIFICATION. If Vendor is a taxable entity as defined by Chapter 171, Texas Tax Code ("Chapter 171"), then Vendor certifies that it is not currently delinquent in the payment of any taxes due under Chapter 171, or that Vendor is exempt from the payment of those taxes, or that Vendor is an out-of- state taxable entity that is not subject to those taxes, whichever is applicable. 3. TEXAS FAMILY CODE CHILD SUPPORT CERTIFICATION. Pursuant to Section 231.006, Texas Family Code, Vendor certifies that it is not ineligible to receive payments under the Agreement and acknowledges that the Agreement may be terminated and payment may be withheld if this certification is inaccurate. 4. BUY TEXAS CERTIFICATION. As required by Section 2155.4441 Texas Government Code, Vendor agrees that it will buy Texas products and materials for use in providing the services contemplated herein when such products and materials are available at a comparable price and within a comparable period of time when compared to non -Texas products and materials. 5. PROHIBITED BIDS AND CONTRACTS. Under Section 2155.004 of the Texas Government Code, Vendor certifies that it is not ineligible to receive this Agreement and acknowledges that this Agreement may be terminated and payment withheld if this certification is inaccurate. 6. SUSPENSION OR DISBARMENT. Vendor certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, neither are in the process of being declared ineligible or being debarred, nor is either Vendor or any of its principals voluntarily excluded from covered transactions by any federal department or agency. TWU may immediately terminate this Agreement without penalty if Vendor's certification herein is inaccurate or becomes inaccurate. 7. STATE AUDITOR'S OFFICE. Vendor understands that acceptance of funds under the Agreement constitutes acceptance of the authority of the Texas State Auditor's Office, or any successor agency (collectively, "Auditor"), to conduct an audit or investigation in connection with those funds pursuant to Sections 51.9335(c), 73.115(c) and 74.008(c), Texas Education Code. Vendor agrees to cooperate with the Auditor in the conduct of the audit or investigation, including without limitation providing all records requested. Vendor will include this provision in all contracts with permitted subcontractors. Page 1 of 4 TWU Office of General Counsel Last Reviewed July 2021 8. TAXES. This Agreement shall not be construed so as to supersede the laws of the United States or the State of Texas that accord the State of Texas, Agency, and all departments, agencies, and instrumentalities of the State of Texas exemptions from the payment(s) of all taxes of whatever kind. More specifically, TWU shall not directly or indirectly be liable for taxes of any kind. To the extent allowed by law, TWU will provide, upon request of the Vendor during the term of this Agreement, all applicable tax exemption documentation. 9. PUBLIC INFORMATION. TWU strictly adheres to all statutes, court decisions and the opinions of the Texas Attorney General with respect to disclosure of public information under the Texas Public Information Act ("TPIA"), Chapter 552, Texas Government Code. Nothing in this Agreement will be construed to prohibit disclosure of any information arising under the Agreement, including the Agreement itself, to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, to the extent permitted by law, TWU will comply with the TPIA notice provisions to give written notice to Vendor to enable Vendor to seek a protective order or otherwise prevent or restrict such disclosure and, if disclosed, the scope of such disclosure is limited to the extent possible. Vendor acknowledges that information created or exchanged between the parties during the performance of this Agreement may be subject to the TPIA, and may be subject to required disclosure in a publicly accessible format. Vendor agrees that it will exercise professional judgment and care when creating documents or other media intended to be confidential that may be subject disclosure under the TPIA and Vendor will mark documents or media it considers to be confidential as "confidential". However Vendor understands that such marking is merely Vendor's assertion of the information as confidential, that such marking is not binding on TWU, and that the parties must still comply with the TPIA requirements should the marked documents not be determined to meet the confidentiality standards under the TPIA or pursuant to decision or opinion by the any applicable court, other governmental authority, or the Texas Attorney General. If the total amount paid to Vendor under this Contract by TWU equals one hundred thousand dollars ($100,000.00) or more. In the performance of this Agreement with TWU, the Vendor must comply with applicable sections of the TPIA Section 552.371, which requires Vendor to: (1) preserve all contracting information related to the Agreement as provided by the records retention requirements applicable to TWU for the duration of the Agreement; (2) promptly provide to TWU any contracting information related to the Agreement that is in the custody or possession of the Vendor on request of TWU; and (3) on completion of the Agreement, either: (A) provide at no cost to TWU all contracting information related to the Agreement that is in the custody or possession of the Vendor; or (B) preserve the contracting information related to the Agreement as provided by the records retention requirements applicable to TWU. As required by the TPIA, Vendor hereby acknowledges the following: "The requirements of Subchapter J, Chapter 552, Government Code, may apply to this contract and the contractor or vendor agrees that the contract can be Page 2 of 4 TWU Office of General Counsel Last Reviewed July 2021 terminated if the contractor or vendor knowingly or intentionally fails to comply with a requirement of that subchapter." Further, in addition to the possible termination of the Agreement, Vendor acknowledges that failure to comply with the requirements of the TPIA may negatively affect Vendor's eligibility to bid on future contracts with TWU. The definition of "contracting information" above is provided in Section 552.003(7) of the Government Code. 10. DUTY TO MAINTAIN RECORDS. Vendor shall maintain adequate records to support its charges, procedures, and performance to TWU for all work related to this Agreement to ensure proper accounting for all costs and performances related to this Agreement. 11. RIGHT TO AUDIT. Vendor shall, at all times during the term of the Agreement and for a period of four years after the completion of the services thereunder maintain such records, together with such supporting or underlying documents and materials. Vendor shall upon reasonable notice of TWU, whether during or after completion of the services and at TWU's own expense make such records available for inspection and audit. Such records shall be made available to TWU during normal business hours at the TWU's office or place of business. Costs of any audits conducted under the authority of this right to audit will be borne by TWU unless certain exemption criteria are met as stated hereafter. If the audit identifies inaccuracies (of any nature) by Vendor to TWU in excess of one-half of one percent (.5%) of the total contract billings, the Vendor shall reimburse TWU the total costs of the audit. Any adjustments and/or payments that must be made as a result of any such audit or inspection of the Vendor's records shall be made within a reasonable amount of time (not to exceed 90 days) from presentation of TWU's findings to Vendor. 12. BOYCOTT CERTIFICATION. Pursuant to Texas Government Code Chapter 2271.002, Vendor certifies that either (1) it meets an exemption criteria under Section 2271.002; or (2) it does not boycott Israel and will not boycott Israel during the term of the Agreement. Vendor acknowledges this Agreement may be terminated and payment withheld if this certification is inaccurate. If Vendor meets an exemption, it shall provide TWU written notice of what that exemption is at the time the Agreement is made. 13. ANTI TERRORISM CERTIFICATION. As required by Texas Government Code Section 2252.152, Vendor represents and warrants that it is not a company prohibited under Section 2252.152 or identified by (1) the Texas Comptroller as a company with business operations in Sudan; (2) the Texas State Pension Review Board as a company with business operations in Iran; or (3) the Texas Comptroller as a company known to have contracts with, or known to provide supplies or services to, a foreign terrorist organization. Excepted from this prohibition are companies the United States government affirmatively declares to be excluded from its federal sanctions regime relating to Sudan, Iran or foreign terrorist organizations. 14. GENERAL APPROPRIATIONS ACT CERTIFICATION. Vendor acknowledges and agrees that under article IX, Section 6.25 of the General Appropriations Act, and except as provided therein, funds may not be distributed under this Agreement to any individual or entity that: (1) Performs an abortion procedure that is not reimbursable under the state's Medicaid program; (2) Is commonly owned, managed, or controlled by an entity that performs an abortion procedure that is not reimbursable under the states' Medicaid program; or (3) Is a franchise or affiliate of an entity that performs an abortion procedure that is not reimbursable under the state's Medicaid program. Page 3 of 4 TWU Office of General Counsel Last Reviewed July 2021 15. FIREARM CERTIFICATION. As required by Subtitle F (State and Local Contracts and Fund Management), Title 10, Texas Government Code, if the total amount paid to Vendor under this Contract by TWU equals one hundred thousand dollars ($100,000.00) or more, Vendor represents and warrants that it (a) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (b) will not discriminate during the term of the contract against a firearm entity or firearm trade association. INsoIkv.11 DID] 001Bill u8k's 0III :791:3'/:Tti:Igl91DOI1103•AIwo Ia7:1:140Ilk's City of Denton By: Name: Title: Date: Texas Woman's University By: Name: Title: Date: Page 4 of 4 TWU Office of General Counsel Last Reviewed July 2021