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HomeMy WebLinkAboutresolution.council.070-12 RESOLUTION # (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND TRI-COUNTY WATER CONSERVATION DISTRICT, AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE ELECTRIC DEPARTMENT OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for the purchase of hydroelectricity, between The Aspen Electric Department, an enterprise owned and operated by the City of Aspen and Tri-County Water Conservation District (TCWCD), a substantially complete copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract for the purchase of hydroelectricity, between The Aspen Electric Department, an enterprise owned and operated by the City of Aspen and TCWCD, a substantially complete copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the Electric Department of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 13th day of August, 2012. /y'!z Michael C. Irela d, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the 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 on the 13th day of August, 2012 Kathryn S. och, ity Clerk POWER PURCHASE AGREEMENT BETWEEN CITY OF ASPEN AND TRI-COUNTY WATER CONSERVANCY DISTRICT This Power Purchase Agreement ("Agreement") is made and entered into this 22nd day of August, 2012, ("Effective Date") by and between the Aspen Electric Department of the City of Aspen, hereinafter referred to as "Buyer", and on behalf of its successors and assigns, and Tri- County Water Conservancy District, hereinafter referred to as "Seller", and on behalf of its successors and assigns. Buyer and Seller may be hereinafter referred to collectively as the "Parties" and individually as a"Party". 1. RECITALS: 1.1 The Aspen Electric Department, established by the City of Aspen Municipal Code Section 25.04.010, is an enterprise under Article X §20(2)(d) and is owned and operated by the City of Aspen. 1.2 Tri-County Water Conservancy District, designated as such by Colorado Revised Statutes § 37-45-153 (as amended), is a public and quasi municipal corporation. 1.3 The City of Aspen has developed a renewable resource program designed to promote the development of electric energy resources and has charged the Aspen Electric Department to implement the program. 1.4 Seller intends to own and operate the Tri-County Hydropower Project which shall be located in Ouray County, Colorado approximately six miles north of the Town of Ridgway at the Ridgway Reservoir Dam, hereinafter referred to as the "Site" and defined below. 1.5 Seller intends to own, install and utilize in the production of electric energy one or more hydropower generators hereinafter referred to as the "Unit" and defined below at the Site and desires to sell, anal Buyer desires to purchase, during the term of this Agreement, all of the electric energy hereinafter referred to as the "Output" from the Unit subject to the terms and conditions and at the prices set forth in this Agreement. 2. DEFINITIONS: For purposes of this Agreement, all terms used herein with initial capital letters, and not otherwise textually defined, shall have the definitions ascribed to them in this Section 2; terms used herein with initial capital letters not textually defined and not set forth in Section 2 shall have the meaning generally ascribed to them and consistent with the context in which used: 2.1 "Billing Period" is a period of time, normally coinciding with a calendar month, 1 during which energy generation is aggregated for the purpose of sale by Seller and purchase by Buyer. 2.2 "Commercial Operation" is that point in time when Seller successfully demonstrates and confirms in writing that: (1) construction and installation of the Unit is complete; (2) installation of Interconnection Facilities is complete; (3) the Unit meets commissioning certification requirements agreed upon by Seller and its principal and/or general contractor; and (4) the Unit provides energy to the Point of Delivery. 2.3 "Commercial Date" is the first full day following Commercial Operation of the Unit, which shall occur no later than October 1, 2014 or as otherwise permitted under this Agreement. 2.4 "Effective Date" is the date stated on page one of this Agreement. 2.5 "Energy Rate(s)" is as shown in Exhibit 3, attached hereto, and made a part of this Agreement. 2.6 "Environmental Attributes" shall mean with respect to a specified quantity of the electric energy generated by the Unit the right of a purchaser of such Environmental Attributes to claim under applicable energy generation disclosure and tracking laws and regulations, any and all of the value associated with the generation of such electric energy, 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 energy generation on a capacity and/or energy basis, and the resulting 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; provided, however, that for purposes of this Agreement, Environmental Attributes shall specifically exclude any and all state and federal production tax credits, investment tax credits and any other tax credits of any nature which are or will be available to Seller in connection with the electric energy generated by the Unit. 2.7 "Interconnection Facilities" mean all of the necessary electrical connection facilities which have been or must be installed or modified for the purpose of interconnecting the Unit to Tri-State Generation and Transmission Association, Inc. lines at the Site. Interconnection Facilities include, but are not limited to, metering equipment, transformers and associated equipment, distribution lines and equipment, communications and telemetering equipment, protective devices and safety equipment. 2.8 "Interconnection Point" means the point of interconnection of the Facility from the interconnection provider's electric system to the Point of Delivery as defined below. 2 2.9 "Metered Energy" is the monthly electric energy output from the Unit, measured at the Point of Delivery. 2.10 "Output" means the electric energy produced by the Unit and delivered by Seller to Buyer at the Point of Delivery, measured in megawatt-hours and calculated as shown in Exhibit 4, attached hereto, and made a part of this Agreement. For purposes of this Agreement, Output shall include the Environmental Attributes associated with the electric energy delivered by Seller to Buyer at the Point of Delivery. Any reference to a proportional amount of Output refers to the portion of the year pertaining to the months of delivery of electric energy to Buyer. 2.11 "Point of Delivery" shall mean the Tri-State Generation and Transmission Association,Inc. meter, unless mutually agreed to hereinafter by Seller and Buyer, also known as "Point of Change of Ownership." 2.12 "Site" means all components of Seller's hydropower generating facility and Seller's interconnection facilities needed to produce electricity and deliver such electricity to the Electric Interconnection Point, as described in Exhibit 2, attached hereto, and made a part of this Agreement. 2.13 "Term" means the total length of time during which the obligation of the Seller to deliver electric energy to the Buyer pursuant to the terms of this Agreement commencing on October 1, 2014 or upon the Commercial Date, whichever shall last occur. 2.14 "Unit" means two (2) Francis turbine generators and associated equipment having a maximum collective net rated output of 8 MW, as described in Exhibit 1, attached hereto, and made a part of this Agreement. 3. SALE: 3.1 Seller shall sell and deliver to Buyer and Buyer shall purchase and receive from Seller at the Point of Delivery the Output from the Unit generated during each of the following full and consecutive months of each year of the term of this Agreement: October through and including May. 3.2 The Unit will be submitted to Western Area Power Administration (WAPA) - Operations under WAPA's FERC=filed Network Integration Transmission System (NITS) tariff as a NITS Network Resource on the WAPA CRSP system. 3.3 It shall be Buyer's sole responsibility to make all the necessary arrangements for the transmission of energy from the Point of Delivery, including scheduling, accounting, and billing, with the appropriate control area operators and/or transmission providers. Any wheeling charges or other costs associated with transmission beyond the Point of Delivery shall be the sole responsibility of Buyer. This includes any costs associated with transmission system curtailments and costs for additional points of delivery required by Buyer beyond the Point of Delivery. 3 3.4 Seller shall communicate to Buyer and/or its designated Agent, the Municipal Energy Agency of Nebraska Operations and Scheduling desk personnel the amount of energy expected to be delivered on an hourly basis under this Agreement by such means as the Parties shall mutually agree upon. 3.5 Buyer shall have the right to affix identifying signs to the Unit for purposes of identifying that the Unit was built in part to serve this Agreement. However, the details of disclosure, signage construction and location shall be determined by mutual agreement of the Parties. 4. TERM AND TERMINATION; OPTION TO PURCHASE; RIGHT OF FIRST REFUSAL AND OPTION TO EXTEND: 4.1 This Agreement shall be in force and effect for twenty (20) consecutive years commencing upon the Commercial Date unless as extended pursuant to the terms hereof. 4.2 If, for a reason other than Force Majeure, the Unit does not commence Commercial Operation by the Commercial Date, this Agreement shall be extended on its same terms and conditions for a period up to fifteen (15) consecutive months from October 1, 2014, within which period of time the Commercial Date shall occur. However, should the Commercial Date not occur within said eighteen (18) month period, Buyer shall have the right to terminate this Agreement by providing written notice thereof to Seller, upon which receipt this Agreement shall be deemed null and void and Seller and Buyer shall be released and release the other from all obligations and liabilities hereunder 4.3 The breach of any material representation, warranty or obligation included in this Agreement, shall be deemed a default under this Agreement. Upon such default, the non-defaulting party shall provide the defaulting Party with written notice of default pursuant to Section 23 of this Agreement. Such written notice shall set forth, in reasonable detail, the nature of the default. The defaulting Party shall have sixty (60) days from such written notice to cure the default. In the event the default is not cured the non-defaulting Party shall have the right to terminate this Agreement. 4.4 Option to Purchase. If at anytime during the existence of the Term of this Agreement, Seller shall have the ability and capacity to deliver electric energy to Buyer, in excess of the amount set forth in this Agreement ("Additional Energy"), Buyer shall have the exclusive option to purchase the Additional Energy under the same terms and conditions, including price, as provided in this Agreement. Seller shall be obligated to provide Buyer with written notice of the amount of Additional Energy, the approximate date of the commencement of delivery of Additional Energy and the period of time the ability and capacity to deliver the Additional Energy will exist. Buyer shall have thirty (30) days thereafter to exercise its option to purchase the Additional Energy by providing written notice thereof. Buyer's failure to provide timely written notice of the exercise of its option shall terminate the option. 4 4.5 Right of First Refusal. If at anytime during the existence of this Agreement, Seller shall accept any bona fide offer from an unrelated third party for the sale of all or any portion of the Tri-County Water Hydropower Project, such acceptance shall be subject to the right of first refusal of Buyer. Seller shall provide to Buyer a full and complete copy of the offer, within ten (10) days of its mutual execution by Seller and third party of the offer and Buyer shall have twenty (20) days thereafter to exercise its right of first refusal by submitting to Seller an identical offer in the form of a binding contract upon execution. 4.6 Option to Extend Term. Buyer may request that this Agreement be extended for an additional period, which extension shall be subject to renegotiation of the terms of this Agreement (the New Terms") including, without limitation, the rate, escalation factor and term of years. If Buyer desires to extend the Term of this Agreement Buyer shall deliver written notice to Seller requesting an extension on or before the date that is two (2) years prior to the end of the Term. If Seller approves Buyer's request (which may be approved or denied in Seller's discretion) then Seller and Buyer shall begin discussions regarding the New Terms. If Buyer fails to give timely notice of its request for an extension, if Seller denies Buyer's request, if Seller does not respond prior to the end of the Term or if Seller and Buyer fail to agree in writing on the New Terms of the Agreement before three hundred and sixty-five (365) days prior to the end of the Term, then this Agreement shall terminate at the end of the Term_ 5. DETERMINATION OF ENERGY DELIVERED: 5.1 The cost of the energy purchased from Seller by Buyer, Output, shall be calculated using the applicable rate set forth in Exhibit 3. 5.2 The Output shall be delivered to Buyer at the Point of Delivery, which shall be deemed the point of sale, and purchased by Buyer, commencing upon the Commercial Date. 5.3 Upon no less than ten (10) days written notice from Seller. Buyer shall purchase all electric energy that may be delivered by Seller to Purchaser during the period of time existing between initial, first-time operation and the Commercial Operation of the Unit ("Pre-Term Energy"). The Pre-Term Energy shall be purchased from Seller at the Point of Delivery and at the rate set forth in Exhibit 3. However, no obligation shall exist upon Buyer to purchase Pre-Term Energy prior to October 1, 2013 and no right shall exist for Buyer to purchase Pre-Term Energy after May 31, 2014 unless the Commercial Date is extended in conformity with Section 4.2 herein. 6. BILLING AND PAYMENT: 6.1 The energy billing charge for each Billing Period shall be the product of the Output (in megawatt-hours) delivered to Buyer, pursuant to Section 5, during such Billing Period, times the applicable Energy Rate as set forth in the attached Exhibit 3. 5 6.2 Beginning with the calendar month following the month in which Commercial Operation occurs, Seller shall submit to Buyer by the 10th day of the month an invoice, for the preceding Billing Period, for the Output from the Unit delivered to Buyer at the Point of Delivery. Such bills shall include the beginning and end dates of the Billing Period, the amount of energy delivered to Buyer as determined from the metering equipment described in Section 7 herein using the calculation defined in Exhibit 4 attached hereto, and the total amount due to Seller. 6.3 Buyer shall make payment to Seller, either by check or by electronic transfer of such payment, within thirty (30) days following receipt of the invoice from Seller. Payments are deemed paid on the date they are postmarked or electronically transferred. Absent proof of postmark. payments shall be deemed paid as of the date the check is received by Seller. Interest on any unpaid, undisputed amount shall accrue at the rate of one percent per month or fraction thereof from the date due until the date upon which payment is made. 6.4 Information necessary to accomplish electronic transfer of payments due shall be provided in writing pursuant to Section 23. 6.5 In the event that any portion of a bill is in dispute, the undisputed amount shall be paid. The Parties shall use their best efforts to amicably and promptly resolve the dispute. Upon determination of the correct billing amount the proper adjustment shall be paid or refunded within ten (10) days of the determination, subject to an interest charge at the rate of one percent per month or fraction thereof. 7. METERING: 7.1 Seller shall install, own, operate and maintain, at its own expense, all necessary meters, dedicated potential and current transformers, and associated equipment to be utilized for the measurement of energy for determining Buyer's payments to Seller pursuant to this Agreement. Metering equipment will be installed at the Point of Delivery and shall be used to measure the Metered Energy. The Metered Energy shall be used to calculate the Output by means of the formula defined in Exhibit 4, attached hereto. 7.2 A one line drawing depicting the interconnection of the Unit to the Point of Delivery and the placement of Seller's metering installation is attached hereto, and made a part hereof, as Exhibit 5. 7.3 Meters may be tested at any time by Seller and upon request following ten (10) days notice by Buyer, at Buyer's expense. Buyer shall be allowed to have a representative present to witness any test requested by it and shall be entitled to receive all test reports of any tests undertaken by Seller. Metering equipment found to be inaccurate by more than 2% shall be repaired, adjusted, or replaced by Seller, at Seller's expense. Any correction in the billing resulting from such repairs, adjustments or replacements shall be made in the accounting rendered for the next Billing Period pursuant to Section 6 herein; and such correction, when made, shall constitute full resolution of any claim between the Parties arising out of such 6 inaccuracy of metering equipment. The period for which any such correction will be applied shall be limited to one hundred eighty (180) days prior to the date on which the Parties agree, in writing, to the resolution of any required correction. 7.4 The Parties shall cooperate in providing such information and reports to each other relating to this Agreement, including but not limited to, metering, testing, the Unit, and the Point of Delivery, as may be reasonably required from time to time. 8. OPERATION AND MAINTENANCE: 8.1 Seller shall be responsible for operation and maintenance of the Unit at its sole expense. 8.2 Employees of Buyer and agents of the Municipal Energy Agency of Nebraska shall have the right to visit the Site and inspect the Unit with reasonable prior notice given to Seller. 9. INTERCONNECTION: 9.1 Except as otherwise specifically provided for herein, Seller shall design, operate, and maintain, at its own expense, all Interconnection Facilities associated with the Unit. 9.2 Seller shall provide Buyer with electrical plans and specifications for Interconnection Facilities upon furnishment of such plans and specifications to Seller by Tri-State Generation and Transmission Association, Inc. 10. RECITALS AND EXHIBITS MADE PART OF THIS AGREEMENT: All Recitals and all Exhibits which are referred to herein and attached hereto, and as such made a part hereof are specifically incorporated into this Agreement as material teams thereof and, where applicable, not merely for the purpose of example. 11. LIABILITY: Seller shall save, defend, and hold harmless, to the extent provided by law, Buyer, its officers, employees, and agents from any and all claims arising from or related to the Unit or the Site, including without limitation claims for injury to person or persons or damage to property occurring at the Unit or the Site prior to or at the Point of Delivery and Buyer shall save, defend, and hold harmless, to the extent provided by law, Seller, its officers, employees, and agents from any and all claims arising from or related to the Unit or the Site, including without limitation claims for injury to person or persons or damage to property occurring at the Unit or the Site subsequent to the Point of Delivery; provided, however, that nothing herein contained shall be construed as relieving or releasing any Party from liability for injury or damage, wherever occurring, resulting from its own negligence or the negligence of any of its officers, servants, employees, or agents; and in the event of concurrent negligence by the Parties, there shall be contribution; and provided further, that each of the Parties hereto shall be solely responsible for injury or damage, wherever occurring, due solely to any defect in 7 equipment installed, furnished, or maintained by such Party. Each Party is solely responsible for the risk of loss, or damage to, its equipment, unless the loss or damage results from the negligence or fault of the other Party. 12. INSURANCE: Seller will obtain and maintain, and cause any contractor or subcontractor engaged hereunder by Seller to obtain and maintain, adequate and extended insurance coverage for (a) all risks of liability to persons or property, (b) interrupted business operations and (c) in connection with the construction of the facility or any later occurring improvements thereto, an all-risk builder's policy of insurance. The amounts of coverage and terms of liability shall be determined by Seller and shall be compliant with the typical amounts and terms associated with the development, construction and operation of a hydroelectric plant similar in capacity, output and size to the Site. 13. TITLE: Delivery of energy from Seller to Buyer shall be deemed completed at the Point of Delivery, and title to such energy shall pass to Buyer upon delivery. 14. WAIVER: Failure to enforce or insist upon compliance with any of the terms or conditions of this Agreement shall not constitute a waiver or relinquishment of any such terms or conditions, but the terms or conditions of this Agreement shall be and remain at all times in full force and effect. 15. CHOICE OF LAW: This Agreement shall be construed and enforced in accordance with the laws of Colorado applicable to agreements made and to be performed entirely within Colorado other than such laws, rules,regulations and case law that would result in the application of the laws of a jurisdiction other than the state of Colorado. Any action or other proceeding arising from this Agreement must be initiated and conducted in an appropriate federal or state court in the State of Colorado with the exception that both Parties shall agree to the venue of the proceedings. 16. FORCE MAJEURE: Subject to the terms and conditions in this Paragraph, no Party to this Agreement shall be liable for any delay or failure to perform under this Agreement due solely to conditions or events of force majeure, as that term is specifically defined herein; provided that: (i) the non performing Party gives the other Party prompt written notice describing the particulars of the occurrence of the force majeure; (ii) the suspension of performance is of no greater scope and of no longer duration than is required by the force majeure event or condition; and(iii) the non-performing Party proceeds with reasonable diligence to remedy its inability to perform and provides weekly progress reports to the other Party describing the actions taken to remedy the consequences of the force majeure event or condition. As used herein force majeure shall mean any delay or failure of a Party to 8 perform its obligations under this Agreement caused by events beyond the Party's reasonable control, and without the fault or negligence of the Party. including, without limitation (a) changes in state or federal law or administrative practice concerning, water rights administration, water quality or stream flow requirements, (b) any obligation imposed upon Seller pertaining to the delivery and/or use of its water and all its associated rights existing thereunder as required by the Bureau of Reclamation, any other federal or state governmental, (c) acts of God, (d) sudden actions of the elements such as floods, earthquakes, hurricanes, or tornadoes, (e) sabotage, (f)vandalism beyond that which can be reasonably prevented by the Party, (g) terrorism, (h) war, (i) riots, (j) fire, (k) explosion, (1) severe cold or hot weather, (m) snow, (n) drought, (o) other extreme weather conditions, (p) blockades, (q) insurrection, (r) strike, slow down or labor disruptions (even if such difficulties could be resolved by conceding to the demands of a labor group), (s) actions by federal, state, municipal, or any other government or agency (including but not limited to, the adoption or change in any rule or regulation or environmental constraint imposed by federal, state or local government bodies) but only if such requirements, actions, or failures to act prevent or delay performance, (t) inability, despite due diligence, to obtain required licenses, permits or approvals, and, (u) changes of law relating to financial obligations, revenues and budgetary matters concerning Colorado water conservancy enterprises. In the event a force majeure event or condition prevents Seller from delivering all or part of the agreed upon amounts of electric energy to Buyer, Seller shall refund all advance payments made, if any, for that energy not delivered within sixty (60) days of the conclusion of the force majeure event or the cancellation of the Agreement pursuant to the remaining provisions of this Paragraph. In no event will any delay or failure of performance caused by any conditions or events of force majeure extend this Agreement beyond its stated term. In the event any delay or failure of performance on the part of the Party claiming force majeure continues for an uninterrupted period of more than one hundred and twenty (120) days from its occurrence or inception as noticed pursuant to this Paragraph, the Party not claiming force majeure may, at any time following the end of such one hundred and twenty (120) day period, terminate this Agreement upon written notice to the Party claiming force majeure, without further obligation except as to costs and balances incurred prior to the effective date of such termination. 17. PRIORITY OF DELIVERY: This Agreement is made expressly subordinate to any present or future use of water for any purpose or any other use Seller has incurred or will incur as a result of the present or future terms and conditions set forth and existing in and through any obligation imposed upon Seller pertaining to the delivery and/or use of its water and all its associated rights existing thereunder as required by the Bureau of Reclamation, any other federal or state governmental entity and/or any contract, agreement, treaty, accord or other arrangement into which Seller may enter for the benefit of all persons and/or entities to which it is bound to deliver its water. 18. ENVIRONMENTAL ATTRIBUTES: Buyer's proportional Output shall include all associated Environmental Attributes. Seller shall present to Buyer an attestation form or such other form acceptable to Buyer as proper and appropriate for the particular Environmental Attributes, with each invoice 9 designating the quantity of Environmental Attributes associated with the relevant invoice period. In the event that Buyer determines that it requires amendment or modification to the form of attestation to be received from Seller with future invoices, Seller agrees to use commercially reasonable efforts to amend or modify the form of attestation it provides to Buyer, in order to accommodate Buyer's needs. Seller agrees to provide certification for one hundred percent (100%) of the Environmental Attributes associated with Buyer's proportional Output and such other documentation as may be reasonably requested by Buyer from time to time in order to realize the benefits of the Environmental Attributes. Seller represents and warrants it has and at all times will have exclusive right to sell the Environmental Attributes that exist under current laws, rules and regulations called for in this Agreement, limited to the Buyer's proportional Output, and if there are changes in laws, rules or regulations after the Effective Date, Seller shall take all actions reasonably necessary to establish and maintain its exclusive rights to sell and transfer such.Environmental Attributes to Buyer, and Seller further declares that the Environmental Attributes have not been sold or otherwise transferred to a third party. Seller shall not sell, market, or otherwise transfer Environmental Attributes arising from Buyer's Output to a third party. Seller's full and exclusive ownership rights to the Environmental Attributes arising from Buyer's Output described herein are not being disputed; and the energy that was generated with the Environmental Attributes arising from Buyer's Output was not and will not be separately sold, used, marketed or otherwise represented as renewable energy by Seller and was not used to meet any federal, state or local renewable energy requirement, renewable energy procurement, renewable portfolio standard, or other renewable energy mandate by Seller, or any other party purchasing from the Unit. 19. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties hereto. Each Party shall have the right to assign all or part of its rights and interests herein, without prior written consent of the other Party, to any entity at least a majority of which is owned by such transferring Party. Neither Party, except in connection with the financing of all or any portion of the Tri-County Water Hydropower Project, or as allowed above, shall be entitled to assign this Agreement or enter any sublease without the prior written consent of the other Party, which consent may not be unreasonably withheld (it being understood that it would be reasonable to withhold consent to any assignment which would adversely affect the non-assigning Party or the delivery electric energy under this Agreement). Any approved assignee or sublessee must first deliver to the non-transferring Party an agreement binding such assignee or sublessee to this Agreement and containing (a) a covenant by such assignee or sublessee to perform all of the obligations of the transferring Party to be performed under this Agreement; and (b) a provision subjecting any further assignment or sublease to the restrictions contained in this Section 19. Under no circumstances will any assignment or sublease be allowed if it shall violate the terms of any license or permit required for performance under this Agreement. 20. APPROVALS: 20.1 This Agreement is and shall be subject to the regulatory powers of a state or federal agency having jurisdiction. Each Party hereto shall use its best efforts and shall 10 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 it to validly enter into this Agreement and to perform all its obligations herein. 20.2 The Parties expressly agree that this Agreement is subject to the condition precedent that Buyer's wholesale electric supplier Municipal Energy Agency of Nebraska approves an amendment to the Buyer's wholesale power agreement with Municipal Energy Agency of Nebraska to add the power purchased hereunder as an allowable resource of Buyer. Buyer shall provide Seller with written notice of the removal of this condition precedent on or before November 30, 2012.The absence of written notice shall constitute a waiver of this condition by Buyer. 20.3 The Parties expressly agree that this Agreement is subject to the condition precedent of the execution of all contracts and agreements, including but not limited to the Generator Interconnection Agreement, between Seller and Tri-State Generation and Transmission Association, Inc. pertaining to the completion of all improvements collectively comprising the Interconnection Facilities to the satisfaction of Seller. Seller shall provide written notice of the removal of this condition precedent within one hundred and eighty (180) days following the Effective Date. The absence of written notice shall constitute a waiver of this condition Seller. 21. SEVERABILITY: If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid, illegal, or unenforceable to any extent, the remainder of this Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law. Without limiting the generality of the foregoing sentence, to the extent that any provision of this Agreement is prohibited or ineffective under the applicable law, this Agreement shall be considered amended to the smallest degree possible in order to make the Agreement effective under applicable law. 22. INTEGRATION: The terms and provisions contained in this Agreement between Buyer and Seller constitute the entire agreement between Buyer and Seller, and supersede all previous communications and representations, either oral or written, between Buyer and Seller with respect to the subject matter and the intended terms of this Agreement. 23. NOTICES: All notices pursuant to this Agreement shall be in writing and shall be sent only by the following methods: personal delivery; United States Mail (first-class, certified, return- receipt requested,postage prepaid); or delivery by a national, overnight courier service that keeps records of deliveries (including Federal Express, United Parcel Service and DHL). For purposes of giving notice hereunder, the respective addresses of the Parties are, until changed as hereinafter provided, the following: To Seller: 11 Attn: General Manager Tri-County Water Conservancy District 647 North 7th Street Montrose, CO 81401 tcw @montrose.net Phone 970 249-3369 Fax 970 249-8277 To Buyer: Attn: Director of Utilities and Environmental Initiatives Aspen Electric Department of the City of Aspen 130 South Galena Street Aspen, CO 81611 David.Hornbacher @ci.aspen.co.us Phone 970 429-1983 Fax 970 920-5117 Any Party may change its address or the designation of the person to be notified at any time by giving written notice of such change to the other Party in the manner provided herein. All notices shall be deemed given on the date of personal delivery or, if mailed by certified mail, on the delivery date or attempted delivery date shown on the return-receipt or, if sent by courier service, the next business day. 24. LIMITATION OF LIABILITY: EXCEPT AS OTHERWISE PROVIDED HEREIN, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY IN CONNECTION WITH THE TRANSACTION(S) CONTEMPLATED BY THIS AGREEMENT FOR ANY DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE, PUNITIVE, EXEMPLARY, LOSS OF PROFITS OR REVENUE, OR SIMILAR DAMAGES, REGARDLESS OF HOW CHARACTERIZED AND REGARDLESS OF A PARTY HAVING BEEN ADVISED OF THE POSSIBILITY OR POTENTIAL OF SUCH DAMAGES 25. INDEMNIFICATION: Each of the Parties shall, to the extent allowed by law, with respect to any third-party claims, indemnify, defend, protect and hold the other, it's assignees, invitees, employees, agents and contractors harmless from and against losses, costs, damages, liability or expenses for physical damage to property and for physical injuries to any person, to the extent caused by the operations or activities of such Party or those acting by, for or under such Party. 26. FINANCING: In order to finance the construction of the Tri-County Water Hydropower Project, Seller may hypothecate, mortgage, pledge or alienate the Facilities and/or Seller's rights under this Agreement. Each holder of any such lien is hereinafter referred to as a"Mortgagee." A Mortgagee or its assigns may enforce such lien and acquire the rights under this Agreement in any lawful way and,pending foreclosure of such lien, the Mortgagee may 12 take possession of the Facilities and operate the Tri-County Water Hydropower Project, performing all obligations performable by Seller. Notwithstanding anything herein contained to the contrary, the Mortgagee and/or any person or entity acquiring the rights under this Agreement shall be liable to perform the obligations imposed on Seller by this Agreement only to the extent arising during the period during which such person or entity has possession of the Tri-County Water Hydropower Project. 27. NO PARTNERSHIP: Nothing contained in this Agreement or any acts of either Party, prior to the Effective Date of this Agreement shall be deemed or construed by the Parties or by any third person to create the relationship of principal and agent, partnership,joint venture or any other association between the Parties, other than the relationship of Seller and Buyer of electric energy. 28. RELIANCE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES: Each of the Parties acknowledges that the other Party has relied and will rely upon the accuracy of its respective representations and warranties contained herein, which representations and warranties constitute fundamental terms of this Agreement. All representations, warranties and covenants granted or assented to in this Agreement, shall survive the completion of the transactions contemplated herein and each such representation, warranty, and covenant is a condition of this Agreement, any or all of which conditions may be waived in whole or in part by the party for whose benefit the representation is made. The representations and warranties of the parties contained in this Agreement shall not be discharged, dissolved or terminated by the exercise of any option or right under Section 4 of this Agreement. 29. DISPUTE RESOLUTION: The Parties agree that it is in the best interest of both Parties to attempt to resolve disputes that arise under this Agreement in a prompt and inexpensive manner. To that end, the Parties commit to use their reasonable efforts to resolve disputes informally. For all disputes that arise pursuant to this Agreement, the Parties immediately, through their designated representatives shall negotiate with one another in good faith in order to reach resolution of the dispute. In the event that the Parties, through their respective Boards of Directors cannot agree to a resolution of any dispute within thirty (30) days after the commencement of negotiations, either Party may seek available legal remedies. 30. AMENDMENT: This Agreement may be amended, changed, modified or altered, provided that such amendment. change, modification or alteration shall be in writing and signed by both Parties hereto. Any oral representations or modifications concerning this Agreement shall be of no force or effect unless contained in a subsequent written modification signed by the Party to be charged. 31. FURTHER ASSURANCES: 13 Each Party shall execute such additional documents, instruments and assurances as may be reasonably required from time to time to carry out the terms and intention of this Agreement or to facilitate any financing of the Facilities, and it shall not unreasonably withhold, condition or delay its compliance with any reasonable request made by the other Party. 32. TIME: Time is of the essence hereof. 33. CONSTRUCTION: Unless the context otherwise requires: (a) words of any gender shall be deemed to include each other gender and the neutral; (b) words using the singular or plural number shall also include the plural or singular number, respectively; (c) the words "hereof," "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and section or paragraph references are to the sections or paragraphs of this Agreement unless otherwise specified; (d) the word "including" and words of similar import when used in this Agreement shall mean "including, without limitation," unless otherwise specified; (e) "or" is not exclusive; (f) all terms in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein; (g) any agreement, instrument, statute or regulation defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument, statute or regulation as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein; (h) any references to a person are also to its legal representatives, successors, and permitted assigns and (i) any reference to a monetary amount shall be a reference to lawful money of the United States. Any reference herein to a "day" or number of"days" (without the explicit qualification of"business") shall be deemed to refer to a calendar day or number of calendar days. If any action or notice is to be taken or given on or by a particular calendar day, and such calendar day is not a business day, then such action or notice may be taken or given on the next succeeding business day. A "business day" means any day other than a Saturday, a Sunday or a day on which banks in Denver, Colorado are required or permitted by applicable law to close. This Agreement shall be deemed the collaborative effort of the Parties and shall not be interpreted more stringently against either Party. In the event any term or provision of this Agreement shall be contrary to or conflict with a term or provision in the Lease of Power Privilege to which Seller is a party or any operating criteria, contract, regulation or directive of the United States Bureau of Reclamation, the terms and provisions thereof shall prevail. 34. COUNTERPARTS AND ELECTRONIC DELIVERY This Agreement may be executed in one or more separate counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto. Copies of documents or signature pages bearing original signatures, and executed documents or signature pages 14 delivered by a party by facsimile, or e-mail transmission of an Adobe® file format document (also known as a PDF file), shall, in each such instance, be deemed to be, and shall constitute and be treated as, an original signed document or counterpart, as applicable. Any party delivering an executed counterpart of this Agreement by facsimile, or e-mail transmission of an Adobe® file format document, also shall deliver an original executed counterpart of this Agreement, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement. [SIGNATURE PAGE FOLLOWING.] 15 IN WITNESS WHEREOF,the Parties hereto have caused this Power Purchase Agreement to be executed in their respective names as of the date and year first above written. SELLER: TRI-COUNTY WATER CONSERVANCY DISTRICT ", Jim Hokit.President Date Attest: Vicki S.Ripp, ec et ry. Date BUYER: THE ASPEN ELECTRIC DEPARTMENT B *Ste: pn L✓ / �! L Y r wick,City Manager Date Approved as to form: By: Z ames R.True,City Attorney Dati 12.08.07 Aspen TCW PPA Agreement(3)(FINAL)V4.4 16 LIST OF EXHIBITS Exhibit 1 DESCRIPTION OF THE UNIT Exhibit 2 VICINITY MAP SHOWING THE SITE AND THE GENERAL LOCATION OF THE UNIT Exhibit 3 ENERGY RATES Exhibit 4 CALCULATION OF OUTPUT AND COST Exhibit 5 INTERCONNECTION AND METERING DESCRIPTION 17 EXHIBIT 1 DESCRIPTION OF THE UNIT The Unit associated with this Agreement shall be two (2) Francis turbine generators, with maximum collective net rated output of-8- MW, and all related equipment, to be manufactured and installed along with associated Interconnection Facilities, installed at the Tri-County Water Hydropower Project which is located in Ouray County, Colorado approximately six miles north of the Town of Ridgway at the Ridgway Reservoir Darn. 18 EXHIBIT 2 VICINITY MAP SHOWING THE SITE AND THE GENERAL LOCATION OF THE UNIT 19 . - '+. tr > ' 5 m.r - + ' •p P � . �.J TI'�i p of - 4. .� ! 4:_ am 4 If r e- - M, 4 ..- . F -Lit.i�� j1 i '. 1 -, otr e - :......i... --- q ic �_ S' ,,,. .:, , ,,:...... ,„. .. . .„, , .. . .. ..r y b _.. 7.T= ' yam ?� h*. ,t. i'� w �f r. Y y' L •F y .r,> ,‘fY , .Tb �h x kr + rtp i� '5 }. �t •,• e . ,-..,.o---,..Y.; ' ., 11..1.0' ,.:„.,,.. ot z- ;,aS .y R r-,.., •� '1,..'.. • rY t # • i .] rC 6 7 I " 5t._"T1 s / t °• j rt ik• q„°� kc T is, I 3 :5.. Vii;[ • ilf, _ r - ' [ ��`_� { `. T j p: -' a_ttil t . .i!,. '' ;.- � PP r a� rY. Je .• ^' tnc e , `• f w k. � p f F4,.' V7 .' . .• .t[ r ' = r, Yr '.'''"'- t s-'1t ,y'-il ev� ,• q.`4,: � .aIn,i,. f{,,1:{— M 'Ct . ?`. ■y �,,.•.♦ Z y 't k x"�; ,••• 7• �.e p_' Y k ) $ i.v -. 17 A ,[ y'I _�,. . r f E .i. y` fr�y }{ }�'� onrt .yj'�;` 6 i :i General Location Map .�, lcs. -- £ y }� .. . 6 h¢¢} L5 r• _.�• .,. 1 wy � '' *[ ..-r fr:^ 'N.y n YT,V 1 ,, `r k' � ii'l.� :,TM 't .x r 1 .0•.. 'fi s.4.-.':'. .`:Tr ' � . EXHIBIT 3 ENERGY RATES The initial rate for capacity and energy is $59.00/MWh. The escalation rate is two percent (2%) per year, and will apply for fifteen years, beginning at the start of the second year after the Commercial Date and ending at the end of the sixteenth year after the Commercial Date. Specific rates for the term of this Agreement are provided in the following table. The initial monthly period (months 1 through and including month 12) shall begin upon October 1, 2014 or upon the Commercial Date, whichever shall last occur. Table of Rates Period Rate (Months) (S/MWh) 1-12 59.00 13-24 60.18 25-36 61.39 37-48 62.62 49-60 63.88 61-72 65.16 73-84 66.47 85-96 67.80 97-108 69.16 109-120 70.55 121-132 71.97 133-144 73.41 145-156 74.88 157-168 76.38 169-180 77.91 181-192 77.91 193-204 77.91 205-216 77.91 217-228 77.91 229-240 77.91 Pre-Term Energy Rate: The Pre-Term Energy Rate is the cost per MWh to be paid by the Buyer to the Seller for the delivery of electric energy during the period set forth in Section 5.3 herein and shall be at the rate of$50.00/MWh 21 EXHIBIT 4 CALCULATION OF OUTPUT AND COST For this Agreement. Buyer shall purchase One Hundred Percent(100%) of Output, the electric energy produced by the Unit and delivered by Seller to Buyer at the Point of Delivery, measured in megawatt-hours as calculated on a monthly basis using the following formula: Output= (Metered Energy) x (Rate) = Cost to Buyer The Parties acknowledge that the average purchase of Output by Buyer shall approximate Nine Thousand (9,000) megawatt-hours per year, but neither Party shall be deemed to rely upon this approximation as a representation, term and/or condition of this Agreement. 22 EXHIBIT 5 INTERCONNECTION AND METERING DESCRIPTION RIDGWAY RESERVOIR/DAM IMO STH-LP TRANWoRMEN KIM 4.160 TO HMV CV a 0 ©© ,s Nw 7.E MY GENERATOR STATION f A I• r T rr H POINT OF POINT OF CHANGE (NTERCON ECTION (POI) of OWNERSHIP 03CO) REVENUE METTR Exhibit 5 NETWORK UPGRADE INTERCONNECT Interconnection Detail TRI-STATE G&T SLESTATION SCHEMATIC-NOT TO SCALE 23 Colorado Secretary of State - Summary Page I of 1 �,/'Y "! • J/ r \ti's 4► ' For this Record... Summary ID Number: 1991100S422 'CITE ASPEN CHAPTER OF T111:SUSAN 0.KONILN IIRP.AS"F CANCER Name: FOUNDATION ION Registered Agent: CORPORATION SERVICE COMPANY Registered Agent Street Address: 1560 Broadway Ste 2090,Ike%er•CO 50202,United Status Registered Agent Mailing Address: Principal Street Address: 5005 LI3J Fiecuay.Suite 250,Dallas.'IX 752-14.l"nited State,: Principal Mailing Address: 5005[.[3J Freeway,Suite 250,Dallas,TX 75244,1:nired States Status: Good Standing Form Nonprofit Corporation Jurisdiction. Colorado Formation Dale: 02;11/1991 Term of Duration: Perpetual Annual Report Month: February You may • View History and Documents • View Trade Names • View Trademarks • Obtain Certificate of Good Standing • File a Document • Subscribe to E-mail Notification Regarding this Record • Unsubscribe from E-mail Notification Regarding this Record I Previous Pogo .:JUULC,) http:!/vVwvv.sos.state.co.us/biz!BusincssEntityDel ail.do:jscssionid=0000ZFIjD6jkTd3amS.,. 5%20'20 I0