21-1784ORDINANCE NO. 21-1784
AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME -RULE MUNICIPAL
CORPORATION, AUTHORIZING THE CITY MANAGER TO EXECUTE A POWER
PURCHASE AGREEMENT BETWEEN THE CITY AND O'REILLY HOTEL PARTNERS —
DENTON, LLC., A MISSOURI LIMITED LIABILITY COMPANY; PROVIDING FOR
EXPENDITURE OF FUNDS; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City owns and operates an electric utility which provides electric energy
and related services to all customers within Denton Municipal Electric's (DME) Public Utilities
Commission of Texas (PUCT) certificated jurisdiction; and
WHEREAS, the City of Denton desires to permit electric customers having electric
generation facilities located within the City limits of Denton, Texas to offset a part of their
electrical requirements by utilization of customer's electric power generation facilities; and
WHEREAS, Customer desires to interconnect the electric generating facilities to the City's
Electric Utility System; and
WHEREAS, Customer has completed and submitted the Application for Interconnection
and Parallel Operation of Distributed Generation with the City; and
WHEREAS, both the City and Customer have agreed to terms and conditions set forth in
a power purchase agreement (PPA) and desire to enter the PPA for the Installation of Distributed
Generation; and
WHEREAS, the City Council finds that it is in the interest of the public and Customer that
a copy of the PPA, redacted of Competitive Information, be made available to the public; NOW,
THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. That 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' and any exhibit thereto, with O'Reilly Hotel Partners
— Denton, LLC.
SECTION 2. The findings in the preamble of this ordnance are incorporated herein by
reference.
SECTION 3. Immediately following the execution, attestation, and delivery of the PPA
and any exhibits thereto, the City Secretary is directed to seal and maintain the PPA in her custody
and control, as documents excepted from public disclosure under the previsions of Texas
Government Code, Section 552.133 unless otherwise lawfully ordered to disclose said documents.
SECTION 4. A copy of the PPA, redacted of Competitive Information, attached as
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 5. The expenditure of funds as provided for in this ordinance is authorized.
SECTION 6. This ordinance shall become effective immediately upon its passage and
approval.
The motion to approve this ordinance was made byand
_
seconded by " gt l� ,the ordinance was passed and approved by
the following vote L71– - Q] :
A Nay
Gerard Hudspeth, Mayor: —I
Vicki Byrd, District 1:
Brian Beck, District 2:
Jesse Davis, District 3:
Alison Maguire, District 4: f
Deb Armintor, At Large Place 5:
Abstain Absent
Paul Meltzer, At Large Place 6:
PASSED AND APPROVED this the7 $� day of S¢�e c^�be C' 2021.
GERARD RIADSPETH, MAYOR
ATTEST:
ROSA RIOS, CITY SECRETARY
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BY:,
APPROVED AS TO LEGAL FORM:
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CATHERINE CLIFTON,CITY ATTORNEY
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DocuSign Envelope ID: 2AE7D681-EC5A-4088-BB7B-E6ADDE7E0930
THE STATE OF TEXAS )(
COUNTY OF DENTON )(
POWER PURCHASE AGREEMENT
By and Between
The City of Denton, Texas
and
O'Reilly Hotel Partners — Denton, LLC
This Power Purchase Agreement (hereafter this "Agreement") is entered into as of this day
of September, 2021, by and between O'REILLY HOTEL PARTNERS — DENTON, LLC, a
Missouri limited liability company (hereafter "CUSTOMER"); and the CITY OF DENTON, a
Texas Municipal Corporation and a Home -Rule City (hereafter "CITY") through its electric utility
referred to as Denton Municipal Electric ("DME"). CUSTOMER and the CITY may also be
referred to individually as a "Party," or collectively as the "Parties." Unless otherwise defined in
this Agreement, capitalized or italicized terms shall have the meanings set forth in "Exhibit 1"
attached hereto or set forth herein.
SECTION 1
TERM OF AGREEMENT
1.1 Purchase of Power. The CITY shall, for the term of this Agreement, purchase all Net
Generation delivered by CUSTOMER and produced by the photovoltaic generating facilities
owned by CUSTOMER through PPFID112 and PPFIDI12-B to the DME system through the
CUSTOMER'S point of interconnection. "Net Generation" is the amount of gross generation less
the electrical energy consumed through the same meter.
1.2 Term of Agreement. Subject to the conditions set forth herein, the Parties' obligations
under this Agreement shall be effective October 1, 2021 (the "Effective Date"). Unless otherwise
suspended in accordance with the terms of this Agreement, this Agreement shall remain in full
force and effect until September 30, 2026 (the "Initial Term").
1.3 Renewal. Six months prior to the end of the Initial Term and to the end of any term
extensions, CITY shall give notice to CUSTOMER of any change to the rate for the additional
term pursuant to Section 3. Unless a rate change is negotiated or this Agreement is non -renewed,
this Agreement shall automatically renew at the end of each term for an additional five year term.
SECTION 2
CONDITIONS PRECEDENT
2.1 Conditions Precedent. The performance of this Agreement by either Party shall be subject
to the occurrence of all of the following events or conditions:
POWER PURCHASE AGREEMENT
This document and any attachments or appendices thereto 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.
DocuSign Envelope ID: 2AE7D681-EC5A-4C88-BB7B-E6ADDE7Ep930
(a) Approval of the related Agreement for Interconnection and Parallel Operation of
Distributed Generation for PPFIDO112 and PPFID0112-B by the CITY and CUSTOMER.
(b) Approval of this Agreement by CUSTOMER; and
(c) Approval of this Agreement by City Council of CITY.
SECTION 3
RATE
3.1 Generation Rate. Notwithstanding a Change in Law pursuant to Section 5 of this
Agreement,
SECTION 4
NON -RENEWAL OF AGREEMENT
4.1 If at the conclusion of any term, either Party does not wish to renew this Agreement, then
on the day following the expiration of the term, and for every year thereafter, CITY will not be
obligated to purchase any generation transferred to the DME grid from PPFID0112 or PPFIDO112-
B.
SECTION 5
CHANGE IN LAW
5.1 If, during the Term of this Agreement, there occurs any material change (including the
promulgation, enactment, repeal or amendment of any law or in the application of law) that in any
manner affects the generation credit being offered to CUSTOMER, or requires the CITY to opt -
into the deregulated ERCOT electric market, or if the CITY elects to opt -into retail competition
then, to the extent allowed and not otherwise prohibited by such change in law, the provisions and
terms of this Agreement shall control and such change in law shall not in any way affect or change
the terms of this Agreement regarding the Credit to CUSTOMER for generation to CITY, or the
means by which electricity Power is transmitted, distributed or conveyed through or by CITY to
CUSTOMER as provided by this Agreement. Additionally, should there be any implementation
of a federal or a state law, or should there be any material change in law or action by any state or
federal governmental agency that either: (a) renders this Agreement illegal or unenforceable; or
(b) would reader performance by either Party hereto as illegal or unenforceable; or then promptly
after any such material change in law or governmental action, and by written notice delivered to
POWER PURCHASE AGREEMENT
This document and any attachments or appendices thereto 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,
SPR 17567147.2
DocuSign Envelope ID: 2AE7D681-EC5A-4C88-BB7B-E6ADDE7Eo930
the affected Party by the other Party, the Parties shall enter into good -faith negotiations to make
the minimum changes to this Agreement which will be necessary to render this Agreement in
compliance with any such material change in law or governmental action while preserving, to the
maximum extent possible, the benefits, burdens, and obligations of each Party under this
Agreement.
SECTION b
METERING
6.1 Measurement. Charges for electric Power and Generation Credits are calculated using
measurements from metering equipment owned, installed and read by CITY. Electric meter
services will be performed by CITY, at its sole expense, in accordance with the applicable electric
rate tariff 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. ("ANSI"). Upon notice from CUSTOMER, CITY
will, at CUSTOMER's sole expense, perform additional tests of the accuracy of its meters within
a reasonable time after notice is received. Following the completion of any test, CITY will
promptly advise CUSTOMER 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 Inaccurac . If any meter is determined to be outside the
accuracy standards established by ANSI, proper correction will be made of the measurement data,
and CUSTOMER or CITY may adjust their respective charges based on the corrected meter data.
7.1 Billing and Pa ment.
from date of invoice issuance.
SECTION 7
BILLING AND PRICE
Payment shall become past due if not paid within 15 calendar
SECTION 8
AUDIT
8.1 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 CUSTOMER, then the necessary adjustments with such statement and the
payments thereof will be promptly made and shall bear interest calculated in accordance with
POWER PURCHASE AGREEMENT
This document and any attachments or appendices thereto 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
552101, 552.104, 552.110 and/or 552.133, and may be protected from requiredpublic disclosure,
SPR 17567147.2
DocuSign Envelope ED: 2AE7D681-EC5A-4C88-BB7B-E6ADDE7E0930
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.
SECTION 9
MISCELLANEOUS
9.1 Assigpment. This Agreement may not be assigned by either Party without the prior written
consent of the non -assigning Party.
9.2 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
CUSTOMER 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.
9.3 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 other 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.
To CITY:
Denton Municipal Electric
1659 Spencer Rd
Denton, TX 76205
Fax No.: (940) 349-7334
Phone No.: (940) 349-8487
Attn: General Manager
and
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
POWER PURCHASE AGREEMENT
This document and any attachments or appendices thereto 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, 5S2.104, SS2.110 and/or SS2.133, and may be protected from required public disclosure
SPR 17567147.2
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City of Denton
City Attorney
215 E. McKinney
Denton, TX 76201
Fax No.: (940) 382-7923
Phone No.: (940) 349-8333
To CUSTOMER:
O'Reilly Hotel Partners — Denton, LLC
Attn: Timothy B. O'Reilly
4045 E. Sunshine, Suite 210
Springfield, MO 65809
Phone No.: (417) 851-8700
Fax No.: ( )
NOTE: All Invoices to CUSTOMER will be handled in accordance with normal billing practices.
9.4 Governing Law. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, ENFORCED,
AND PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OR CHOICE OF
LAWS. THE EXCLUSIVE VENUE FOR ALL LEGAL PROCEEDINGS SHALL BE IN
DENTON COUNTY, TEXAS.
9.5 Contract Claims Resolution. The dispute resolution process that is provided for in Texas
Government Code, Chapter 2260 shall be used by the Parties hereto in an attempt 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 CUSTOMER is governed by the published rules adopted by the Office of the Texas
Attorney General, as are currently effective, hereafter enacted, or subsequently amended.
9.7 General. This Agreement and the Exhibits hereto constitute the entire agreement between
the Parties relating to the subject matter contemplated by this Agreement; or any other agreement
or agreements addressing or purporting to address the supply or purchase of Power. No
amendment or modification to this Agreement shall be enforceable unless reduced to writing and
executed by both Parties with authorization from the CUSTOMER and the Denton, Texas City
Council. This Agreement shall not impart any rights enforceable by any third -party other than a
permitted successor or assignee bound to this Agreement. No waiver by a Party of any default by
the other Party shall be construed as a waiver of any other default. The term "including" when
used in this Agreement shall be by way of example only and shall not be considered in any way to
be in limitation. The headings used herein are for convenience and reference purposes only.
POWER PURCHASE AGREEMENT
This document and any attachments or appendices thereto 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, SS2.110 andlor S52.133, and may be protectedfrom required public disclosure
SPR 17567147.2
DocuSign Envelope ID: 2AE7D681-EC5A-4C88-BB7B-E6ADDE7E0930
9.8 Release. To the extent authorized by the laws of the State of Texas, as additional
consideration for entering this Agreement, each Party hereby RELEASES, ACQUITS, and
FOREVER DISCHARGES the other Party, their respective predecessors, successors, assigns,
owners, governing bodies, partners, members, managers, employees, directors, City Council
Members, City staff, legal representatives, insurers, independent contractors, agents, and
attorneys, of and from any and all liability, claims (including contractual claims), demands,
damages, attorney's fees, costs, liens, whether statutorily provided or otherwise, expenses,
services, actions, causes of action, or suits in equity, of whatsoever kind or nature, whether
heretofore or hereafter accruing, which the Party now has, arising out of the prior conduct of
CUSTOMER and CITY relating the furnishing of electric Power to CUSTOMER by CITY.
9.9 Confidentiality. To the extent permitted by law, the Parties agree to maintain the
confidentiality of 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.
[SIGNATURE PAGE FOLLOWS]
POWER PURCHASE AGREEMENT
This document and any attachments or appendices thereto may contain information that is confidential, commercially sensitive, proprietary,
andlor public power utility competitive and financial information in accordance with tite provisions of Teras Government Code, Section
552.101, S52.104, 552.110 and/or 552.133, antimay be protectedfrom required public disclosure
SPR 17567147.2
DocuSign Envelope ID: 2AE7D681-EC5A-4C88-BB7B-E6ADDE7E0930
The Parties have executed this Power Purchase Agreement in two (2) original counterparts, each
of which shall be deemed an original, to be construed to be effective as of the Effective Date.
ATTEST:
ROSA RIOS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
CATHERINE CLIFTON, INTERIM CITY
ATTORNEY
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"CITY"
THE CITY OF DENTON, TEXAS
a Texas municipal corporation and
home -rule city
Sara Hensley
Interim City Manager
"CUSTOMER"
O'REILLY HOTEL PARTNERS —
DENTON, LLC, a Missouri limited liability
company
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By Name: "1'imothy B. OReilly
Title: Manager
POWER PURCHASE AGREEMENT
This document and any attachments or appendices thereto may contain information that is confidential, commercially -sensitive, proprietary,
and/or public power utility competitive and financial information in accordance with tine provisions of Texas Government Code, Section
552.101, 552.104, 553.114 and/or 552.133, and may he protected from required public disclosure
SPR 17567147.2