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HomeMy WebLinkAboutresolution.council.025-09RESOLUTION # ~. S (Series of 2009) A RESOLUTION APPROVING AN AMENDED CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND MUNICIPAL ENERGY AGENCY OF NEBRASKA (MEAN) SETTING FORTH THE TERMS AND CONDITIONS REGARDING ADDITIONAL WIND ENERGY PURCHASES FOR ASPEN ELECTRIC UTILITY AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, and Municipal Energy Agency of Nebraska (MEAN), a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that amended contract between the City of Aspen, Colorado, and Municipal Energy Agency of Nebraska (MEAN) regarding approval of contract amendments to increase the amount of wind energy purchased through the Municipal Energy Agency of Nebraska (MEAN), including revised Exhibit A, copies of which are annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: _~~~ fS, err _~~,~9 I, Kathryn S. Koch, duly appointed and acting City Clerk do certify t foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held Apri127, 2009. ~~~ ~ Kat .Koch, City Clerk Supplemental Agreement for Wind Energy Generation Attributes Purchase between Municipal Energy Agency of Nebraska and The City of Aspen, Colorado THIS SUPPLEMENTAL AGREEMENT FOR WIND ENERGY GENERATION ATTRIBUTES PURCHASE ("Agreement") is made between the Municipal Energy Agency of Nebraska, a political subdivision of the State of Nebraska ("MEAN"), and the City of Aspen, Colorado ("Aspen"), on this day of , 20 .MEAN and Aspen are sometimes referred to collectively as the "Parties" and individually as a "Party". WHEREAS, Aspen is a municipal corporation created under the Constitution of the laws of the State of Colorado; and WHEREAS, Aspen has established by ordinance an electric enterprise ("Enterprise") having the authority to in all respects act as an enterprise under Colorado law, Colorado Constitution Article X, § 20; and WHEREAS, Aspen and MEAN have entered into an Electrical Resources Pooling Agreement (ERPA) and a Total Power Requirements Power Purchase Agreement, pursuant to which MEAN is to acquire and deliver to Aspen all of Aspen's supplemental electrical energy needs in excess of production from the Ruedi hydropower project and the Maroon Creek hydropower project plus the firm power and energy allocation supplied to Aspen by the Western Area Power Administration; and WHEREAS, Aspen and MEAN have entered into two supplemental agreements pursuant to which a portion of Aspen's supplemental energy requirements will be provided by MEAN in the form of wind- generated electrical energy; and WHEREAS, Aspen has requested to purchase and MEAN desires to sell wind energy generation attributes, in addition to the wind-generated energy which is the subject of the previously executed two supplemental agreements between Aspen and MEAN. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the sufficiency of which is hereby acknowledged by the Parties, the Parties agree as follows: Definition. For purposes of this Agreement, "Wind Energy Generation Attributes" means, with respect to a specified quantity of the wind-generated electricity generated, the right of a purchaser of such Wind Energy Generation Attributes to claim, under applicable energy generation disclosure and tracking laws and regulations, all of the non-energy attributes and value associated with the generation of such renewable power, including any green tags, tradable renewable certificates or similar renewable energy certificates, credits, values or premiums associated with such renewable energy generation; any output-based incentive, allocation, credit, value, set-aside allowance or non-energy attribute relating to or arising out of the production of renewable wind energy generation, and emission and greenhouse gas reductions; whether any of the foregoing arises pursuant to existing or future energy generation disclosure and tracking laws and regulations, or existing or future certification, certification program, trading market or exchange. For the avoidance of doubt, Wind Energy Generation Attributes include, but are not limited to, any avoided emissions of pollutants to the air, soil or water such as sulfur dioxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO), mercury (Hg), and any other pollutant that is now or may in the future be regulated under the pollution control laws of the United States; and further include any avoided emissions of cazbon dioxide (CO2) and any other greenhouse gas (GHG); but specifically exclude any and all state and federal production tax credits, investment tax credits and any other tax credits which are or will be generated by the resources from which the energy associated with the Wind Energy Generation Attributes was generated. The energy commodity value associated with any sale ofwind-generated electricity (that is, the energy itself without its Wind Energy Generation Attributes) is not included in the sale of any Wind Energy Generation Attributes hereunder, and Aspen shall have no rights or claims with respect to such energy commodity value unless otherwise agreed by the Parties in writing. 2. Representations and Warranties. A. Aspen and Enterprise represent and warrant that this Agreement has been executed in compliance with or is otherwise not subject to Article X, §20, of the Colorado Constitution (commonly known as the Taxpayer's Bill of Rights or "TABOR") which requires voter approval of certain multi-year governmental financial obligations. B. Upon request, Aspen shall provide an opinion of legal counsel that this Agreement has been duly authorized, executed and delivered by Aspen or the Enterprise and that all financial obligations undertaken or assumed by the Enterprise in connection herewith are valid and enforceable against the Enterprise in accordance with their terms. 3. Obligations of the Parties. A. MEAN shall provide to Aspen, during the term of this Agreement, Wind Energy Generation Attributes for the amount of energy per month as shown in Exhibit A, attached hereto and made part of this Agreement. B. MEAN will, upon written request from Aspen, provide certification that it has either generated wind energy or purchased Wind Energy Generation Attributes, during the term of this Agreement, in an amount equal to the energy per month as shown in Exhibit A. C. MEAN agrees that it will not sell the same Wind Energy Generation Attributes to any other party or use the Wind Energy Generation Attributes in any other manner. D. Aspen agrees to pay MEAN for the Wind Energy Generation Attributes as set forth in this Agreement, and such obligation for payment shall survive termination of this Agreement. 4. Charges. A. Aspen will pay to MEAN $16.00/MWh for the Wind Energy Generation Attributes sold under this Agreement. The amount of the charges shall remain effective unless and until modified by the MEAN Board of Directors in its sole discretion. Written notice of changes in charges shall be provided to Aspen and shall apply effective on the first day of the immediately succeeding term. B. Each month during the term of this Agreement, MEAN will include on Aspen's monthly power and energy bills and Aspen shall pay the amount due for the Wind Energy Generation Attributes sold under this Agreement during the month for which such bill is applicable. C. Payments for the Wind Energy Generation Attributes are due from Aspen to MEAN in accordance with Article XVI of the ERPA. Bills are considered paid when payment is received by MEAN. This Agreement may be terminated by MEAN in the event of nonpayment by Aspen. D. Should Aspen dispute any part of a final bill rendered by MEAN, Aspen shall timely pay the undisputed portion of the bill. When the Parties have resolved the disputed portion of the bill, Aspen shall promptly pay the agreed upon remaining portion of the bill. 5. Term of Agreement. This Agreement shall have an initial term of one (1) year, commencing on April I, 2009, and shall thereafter automatically renew for successive one (1) year terms unless and until written notice of termination by either Party is delivered to the other Party at least ninety (90) days prior to the end of the then-current term. 6. Severability. If any provision of this Agreement is determined by any court or regulatory body having jurisdiction over this Agreement to be invalid or unenforceable, then it is the intention of the Parties that in lieu of each such invalid or unenforceable provision, there be added as part of this Agreement a provision as similar in terms as possible to such invalid or unenforceable provision. The remaining portions ofthe Agreement shall not be affected thereby and shall remain in full force and effect. Integration Clause. This Agreement constitutes the complete agreement of the Parties relating to the matter specified in this Agreement and supersedes all prior representations or agreements, whether oral or written, with respect to such matters. No modification of the Agreement shall be binding upon either Party unless agreed to in writing and signed by both Parties. 3. Waiver. Any waiver at any time by either Party to this Agreement of its rights with respect to a default or any other matter arising under or in connection with this Agreement shall not be deemed a waiver with respect to any subsequent default or matter arising under or in connection with this Agreement. 9. Governing Law. This Agreement shall be governed by and interpreted in accordance with the substantive and procedural laws of the State of Nebraska, excluding any conflict-of--law rules and principles of that jurisdiction which would result in reference to the laws or law rules of another jurisdiction. 10. Regulatory Approvals. This Agreement may be subject to the regulatory powers of any state or federal agency having jurisdiction. Each Party shall use its best efforts and shall cooperate with the other Party to obtain from all such state and federal authorities as may have jurisdiction, all authorizations, approvals, and orders to the extent required by law in order to enable them to validly enter into this Agreement and to perform all their obligations hereunder. 11. Force Majeure. No Party shall be liable for any failure to perform its obligations in connection with this Agreement where such failure results from any act of God or other causes beyond such Party's reasonable control (including, without limitation, war, extreme weather conditions, strikes, fires, embazgos, actions of civil or military enforcement authorities) and which, by the exercise of due diligence, such Party is unable to prevent or overcome. Any Party that becomes unable to perform its obligations under this Agreement because of any such event shall immediately give notice to the other Party of the occurrence of such an event and shall promptly notify the other Party of the anticipated duration of such an event. 12. Changes in Regulations. Should changes in legislation or regulation, either state or federal, make performance by either Party under the Agreement commercially impracticable or impossible, the Parties agree that they will renegotiate the terms of the Agreement as they have been affected by such change in regulation or legislation. 13. Notices. All notices required or permitted to be given with respect to this Agreement shall be given by mailing the same postage prepaid or given by facsimile or by courier to the addressee at such Party's address as set forth be-ow. Either Party may change its address for the purpose of notice hereunder by giving the other Party no less than five (5) days prior written notice of such new address in accordance with the preceding provisions. To MEAN: Municipal Energy Agency of Nebraska ATTN: Executive Director P.O. Box 95124 Lincoln, Nebraska 68509 Telephone: (402) 474-4759 Facsimile: (402) 474-0473 To Aspen: The City of Aspen ATTN: Telephone: Facsimile: 14. Assignment. Neither this Agreement nor the rights or obligations of the Parties under this Agreement may be assigned or transferred by either Party without the prior written approval of the other Party, which approval shall not be unreasonably withheld; rop vided, any assignment or transfer, whether by merger or otherwise, to a Party's affiliate or successor in interest shall be permitted without prior consent if such Party assumes this Agreement. 15. Arbitration. If a dispute between the Parties should arise under this Agreement, either Party may call for submission ofhe dispute to arbitration, which call shall be binding upon both Parties. The arbitration shall be governed by the rules and practice of the American Arbitration Association (or the rules and practice of a similaz organization if the American Arbitration Association should not then exist), with the proviso that the azbitration panel shall, in all events, consist of (3) arbitrators, one chosen by each of the Parties and the third chosen by those two azbitrators. 16. After Termination. The applicable provisions of this Agreement will continue in effect after termination of this Agreement to the extent necessary to provide for final payments, payment adjustments and any other final expense reimbursements, and with respect to liability and indemnification payments and expense reimbursements from acts or events that occurred prior to the date of termination of this Agreement. 17. Liability Limitation. Except as otherwise specifically provided for herein, neither Party, including without limitation, any of its employees or agents shall be liable to the other Party whether in contract, tort or otherwise, for payment of any lost profits, special, indirect, consequential, penal, punitive or similar damages. [SIGNATURE PAGE FOLLOWING.] IN WITNESS WHEREOF, the Parties hereto have caused this Supplemental Agreement for Wind Energy Generation Attributes Purchase to be executed in their respective names as of the date and yeaz first above written. MUNICIPAL ENERGY AGENCY OF NEBRASKA By: Executive Director Attest: CITY OF ASPEN, COLORADO By: Tit1~ Attest: K:ll,egalUCVv1EAI~ERPA1Aspen_Wind Attribute Supp_final.doc SECOND SUPPLEMENTAL AGREEMENT FOR WIND-GENERATED ENERGY PURCFIASE BETWEEN MUNICIPAL ENERGY AGENCY OF NEBRASKA AND CITY OF ASPEN, COLORADO REVISED EXFIIBIT A Contract Wind Energy Month kWh Jan 1,720,352 Febru 1,359,652 March 1,342,492 A ril 1,459,998 Ma 1,250,183 June 1,058,877 July 956,545 Au ust 993,377 Se tember 1,309,724 October 1,838,417 November 1,520,150 December 1,815,849 Annual Total 16,625,616 Effective date of this Revised Exhibit A: April 1, 2009 Supersedes: Exhibit A executed as of Apri13, 2006 between the Parties. WHEREAS, the Parties have duly executed this Revised Exhibit A to the Second Supplemental Agreement for Wind-Generated Energy Purchase as of the date and year shown below. MUNICIPAL ENERGY AGENCY OF NEBRASKA By:, Date: CITY OF ASPEN, COLORADO