HomeMy WebLinkAboutresolution.council.114-23RESOLUTION # 114
(Series of 2023)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING AN AMENDED POWER PURCHASE
AGREEMENT BETWEEN THE CITY OF ASPEN AND TRI-COUNTY
WATER CONSERVANCY DISTRICT (RIDGWAY PROJECT),
AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT
ON BEHALF OF THE UTILITIES DEPARTMENT OF THE CITY OF
ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council an amended
and restated power purchase agreement for the purchase of hydroelectric power,
between The Aspen Utilities Department, an enterprise owned and operated by
the City of Aspen and Tri-County Water Conservancy District (TCWCD), a
substantially complete copy of which is attached hereto as Exhibit "B";
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 an amended
and restated power purchase agreement for the purchase of hydroelectric power,
between The Aspen Utilities 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 Utilities Department of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City
of Aspen on the 8th day of August 2023.
r
Torre, Mayor
I, Nicole Henning, 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 81h day of
August 2023.
Nicole 146nning, City Clerk
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AMENDED AND RESTATED POWER PURCHASE AGREEMENT
BETWEEN
CITY OF ASPEN AND TRI-COUNTY WATER CONSERVANCY DISTRICT
This Amended and � oe� ged 13 er Purchase �speDA�greement ("Agreement") is made and entered
into this day of _ l WJL ive ate) 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 owns and operates the Tri-County Hydropower Generating Facility 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 produces electric energy through the utilization and operation of one or
more hydropower generators at the Tri-County Hydropower Generating Facility
("Facility" or "Site"). Energy generated at this facility is referred to as the
"Output" in this Agreement.
1.6 Pursuant to the 2012 Power Purchase Agreement, entered into by the Parties on
August 22, 2012 and as amended on February 6, 2014 to revise Section 3.2
(referred to collectively as the "2012 Power Purchase Agreement"), Buyer
purchases from Seller the Output, as the term is defined in this Agreement,
generated during the full and consecutive months of October through and
including May of each year subject to the terms and conditions set forth in the
2012 Purchase Agreement.
1.7 Pursuant to the 2012 Purchase Agreement, Buyer had the exclusive option and
right of first refusal to purchase Additional Energy, as the term is defined in
section 4.4 of the 2012 Purchase Agreement to include Output generated during
the summer months of June through and including September, if Seller had the
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ability and capacity to deliver electric energy to Buyer in excess of the amounts
purchased pursuant to the 2012 Purchase Agreement.
1.8 Seller has the ability and capacity to deliver electric energy to Buyer during the
full and consecutive months of May through and including September of each
year ( the "Additional Energy") in addition to the energy generated during the
months of October through and including May of each year, and Buyer desires to
exercise its option to purchase the Additional Energy generated by Seller under
substantially the same terms and conditions set forth in the 2012 Purchase
Agreement.
1.9 The Parties desire to amend restate the provisions of the 2012 Purchase
Agreement to include Buyer's purchase of Additional Energy and updates to
applicable rates.
Now, therefore, consideration of the mutual and covenants and agreements set forth herein, and
for other good and valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
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, nonnally coinciding with a calendar month,
during which energy generation is aggregated for the purpose of sale by Seller
and purchase by Buyer.
2.2 "Effective Date" is the date stated on page one of this Agreement.
2.3 "Energy Rate(s)" is as shown in Exhibit 3, attached hereto, and made a part of
this Agreement.
2.4 "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
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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.
2.5 "Interconnection Facilities" means 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. 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.
2.6 "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
2.7 "Metered Energy" is the monthly electric energy output from the Unit,
measured at the Point of Delivery.
2.8 "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.
2.9 "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."
2.10 "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.
2.11 "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.
2.12 "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.
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3. SALE:
3.1 Upon execution of this Agreement, Seller shall sell and deliver to Buyer and
Buyer shall purchase and receive from Seller at the Point of Delivery the capacity
and Output from the Unit generated year-round for the Term of this Agreement
pursuant to the summer and winter rates set forth in Exhibit 3.
3.2 Buyer's share of the Output has been designated by the Municipal Energy
Agency of Nebraska ("MEAN") as a network resource on the Tri-State
Generation and Transmission Association, Inc. 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.
3.4 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; AND OPTION TO EXTEND:
4.1 This Agreement shall be in force and effect for twenty (20) consecutive years
from the initial commencement date of 2012 Power Purchase Agreement, which
is October 1, 2014, and shall expire on April 30, 2034, unless otherwise extended
by the Parties.
4.2 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.
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4.3 Option to Extend Term. Buyer may request 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.
5.3 Seller acknowledges and agrees that Buyer may enter an agreement with the
Municipal Energy Agency of Nebraska for the purchase of the Output delivered
to Buyer that Buyer does not have the ability or capacity to use at the applicable
Energy Rate agreed upon by the parties, but in no event shall Buyer receive a
profit from the sale of Output to the Municipal Energy Agency of Nebraska.
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.
6.2 Seller shall submit to Buyer by the 1 Oth 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,
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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 b herein; and such correction, when
made, shall constitute full resolution of any claim between the Parties arising out
of such 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.
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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 FART 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 terms
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
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. Nothing herein shall be
construed or interpreted as denying either party any remedy or defense available to such
party under the laws of the State of Colorado. This clause will survive expiration or
termination of this Agreement.
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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 me#eure, 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
perform its obligations under this Agreement caused by events beyond the Party's
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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, 0) 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 farce 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 farce mcjeure 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
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proper and appropriate for the particular Environmental Attributes, with each invoice
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 maiority of which is owned by such transferring Party. Neither Party, 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.
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20. APPROVALS:
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
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.
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:
Attn: General Manager
Tri-County Water Conservancy District
647 North 7th Street
Montrose, CO 81401
tcw a montrose. net
Phone 970 249-3369
Fax 970 249-8277
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To Buyer:
Attn: Director of Utilities
Aspen Electric Department of the City of Aspen
500 Doolittle Circle
Aspen, CO 81611
'ustin.forman a as en. ov
Phone 970 429-1992
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:
EXCF,PT 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. Nothing herein shall be construed or interpreted as denying either party any
remedy or defense available to such party under the laws of the State of Colorado. This
clause will survive expiration or termination of this Agreement.
26. FINANCING:
In order to finance the construction of the Tri-County Water Hydropower Facility, 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 lied, the Mortgagee may
take possession of the Facilities and operate the Tri-County Water Hydropower Facility,
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
12
DocuSign Envelope ID: 4FDF438D-04B7-404E-AA4D-73FF03E74680
Agreement only to the extent arising during the period during which such person or
entity has possession of the Tri-County Water Hydropower Facility.
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.
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31. FURTHER ASSURANCES:
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.
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DocuSign Envelope ID: 4FDF438D-04B7-404E-AA4D-73FF03E74680
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
delivered by a party by facsimile, or e-mail transmission of an Adobe(K 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.]
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DocuSign Envelope ID: 4FDF438D-04B7-404E-AA4D-73FF03E74680
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
r
By: (�.f
Wayne Schieldt, President Date
Attest:
�r
Mike Berry, General Manager Assistant Secretary
BUYER:
THE ASPEN ELECTRIC DEPARTMENT
Ea"20
u igned by:
By: a. (�R21aEEt8aza --
Sara Ott, City Manager
Ap w*LP form:
, &%L1 S r. 1t,u,
By: 432FOA40AS6C4BD
James R. True, City Attorney
e-'� a3
Date
8/10/2023 1 3:32:39 PM PDT
Date
8/10/2023 1 10:46:05 AM MDT
Date
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DocuSign Envelope ID: 4FDF438D-04B7-404E-AA4D-73FF03E74680
LIST OF EXHIBITS
Exhibit I 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
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DocuSign Envelope ID: 4FDF438D-04B7-404E-AA4D-73FF03E74680
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 Facility which is located in Ouray County, Colorado approximately six miles north
of the Town of Ridgway at the Ridgway Reservoir Dam.
18
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DocuSign Envelope ID: 4FDF438D-04B7-404E-AA4D-73FF03E74680
Q S 8_Q_23
.J
EXHIBIT 3
Table of Energy Rates
Period
(Months)
Winter Rate
Oct 1-April 30
$/MWh
Summer Rate
May 1-Sept 30
($/MWh
Oct 1, 2014-Sep 30,
2015
59.00
N/A
Oct 1, 2015-Sep 30,
2016
60.18
N/A
j
Oct 1, 2016-Sep 30,
2017
61.39
N/A
Oct 1, 2017-Sep 30,
2018
62.62
N/A
Oct 1, 2018-Sep 30,
2019
63.88
N/A
Oct 1, 2019- Sep 30,
2020
65.16
N/A
Oct 1, 2020-Sep 30,
2021
66.47
N/A
Oct 1, 2021-Sep 30,
2022
67.80
N/A
Oct 1, 2022-Sep 30,
2023
69.16
N/A
2023/2024
70.55
49.00
2024/2025
71.97
49.98
2025/2026
73.41
50.98
2026/2027
74.88
52.00
2027/2028
76.38
53.04
2028/2029
77.91
54.10
2029/2030
77.91
55.18
2030/2031
77.91
56.29
2031 /2032
77.91
57.41
2032/2033
77.91
58.56
2033/ April 30,2034
77.91
N/A
DocuSign Envelope ID: 4FDF438D-04B7-404E-AA4D-73FF03E74680
EXHIBIT d
CALCULATION OF 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
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DocuSign Envelope ID: 4FDF438D-04B7-404E-AA4D-73FF03E74680
EXHIBIT 5
WITRCONNECTION AND METERING DESCRIPTION
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