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HomeMy WebLinkAboutresolution.council.137-23RESOLUTION # 137 (Series of 2023) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A POWER PURCHASE AGREEMENT BETWEEN THE CITY OF ASPEN AND MUNICIPAL ENERGY AGENCY OF NEBRASKA (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 a power purchase agreement for the purchase and sale of hydroelectric power, between The Aspen Utilities Department, an enterprise owned and operated by the City of Aspen and Municipal Energy Agency of Nebraska (MEAN), a substantially complete copy of which is attached hereto as Exhibit "D"; 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 a power purchase agreement for the purchase and sale of hydroelectric power, between The Aspen Utilities Department, an enterprise owned and operated by the City of Aspen and MEAN, 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 26'h day of September 2023. 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 261h day of September 2023. r Nicole HenAig, City Clerk DocuSign Envelope ID: 62193DE1-CBI 6-4FD3-9736-369ADFC4A8AD POWER PURCHASE AGREEMENT BETWEEN CITY OF ASPEN AND MUNICIPAL ENERGY AGENCY OF NEBRASKA This Power Purchase Agreement ("Agreement") is made and entered into this day of September 26. 2023 , ("Effective Date") by and between the Municipal Energy Agency of Nebraska, hereinafter referred to as "Buyer", and on behalf of its successors and assigns, and the Aspen Electric Department of the City of Aspen, Colorado, 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) of the Colorado Constitution and is owned and operated by the City of Aspen. 1.2 Municipal Energy Agency of Nebraska is a political subdivision and public corporation of the State of Nebraska. 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 Tri-County Water Conservancy District, a public and quasi municipal corporation ("Tri-County"), 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 Tri-County produces electric energy through the utilization and operation of one or more hydropower generators at the Site ("Facility"). 1.6 Pursuant to the Amended and Restated Power Purchase Agreement executed by and between Seller and Tri-County ("Tri-County Agreement"), Seller purchases from Tri-County capacity and energy generated during each year subject to the terms and conditions set forth in the Tri-County Agreement, with the intent to resell a portion of the capacity and energy to Buyer under the terms and conditions set forth in this Agreement. Now, therefore, in consideration of the mutual 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: DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD 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, during which energy generation is aggregated for the purpose of sale by Seller and purchase by Buyer. 2.2 'Buyer's Share of Output" means the portion of 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 total electric energy produced by the Unit which is purchased by Buyer under this Agreement. 2.3 "Effective Date" is the date stated on page one of this Agreement. 2.4 "Energy Rate(s)" is as shown in Exhibit 3, attached hereto, and made a part of this Agreement. 2.5 "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. 2.6 "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 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD equipment, communications and telemetering equipment, protective devices and safety equipment. 2.7 "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 2.8 "Metered Energy" is the monthly electric energy output from the Unit, measured at the Point of Delivery. 2.9 "Output" means the electric energy produced by the Unit. 2.10 "Point of Delivery" shall mean the Tri-State Generation and Transmission Association, Inc. meter located in the Cow Creek substation as depicted on Exhibit 5, attached hereto, and made a part of this Agreement, unless mutually agreed to hereinafter by Seller and Buyer, also known as "Point of Change of Ownership." 2.11 "Site" means all components of Tri-County Hydropower Generating Facility located in Ouray County, Colorado approximately six miles north of the Town of Ridgway at the Ridgway Reservoir Dam, as described in Exhibit 2, attached hereto, and made part of this Agreement, and Tri-County's interconnection facilities needed to produce electricity and deliver such electricity to the Interconnection Point, as described in Exhibit 5. 2.12 "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. 2.13 "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. 2. 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 portion of capacity and Output as calculated in accordance with Exhibit 4 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 Buyer 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 associated with Buyer's Share of the Output 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 DocuSign Envelope ID: 62193DE1-C1316-1FD3-9736-369ADFC4A8AD 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 amount of energy expected to be delivered on an hourly basis under this Agreement by such means as the Parties shall mutually agree upon. 4. TERM AND TERMINATION,• AND OPTION TO EXTEND: 4.1 This Agreement shall be in force and effect for a term of October 1, 2023 through 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. 4.3 Option to Extend Term. Buyer acknowledges that the Tri-County Agreement term ends on April 30, 2034, and Seller has an option to extend the Tri-County Agreement for the purchase of Output if the terms of extension are agreeable to Tri-County and Seller. 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, and shall be subject to Seller extending the Tri-County Agreement through the term of the extension of this Agreement. 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 Terns 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 Tern. 5. DETERMINATION OF ENERGY DELIVERED: 5.1 The cost of Buyer's Share of Output shall be calculated using the applicable rate set forth in Exhibit 3. 5.2 The Buyer's Share of Output shall be delivered to Buyer at the Point of Delivery, which shall be deemed the point of sale, and purchased by Buyer. 4 DocuSign Envelope R 62193DE1-CB16-4FD3-9736-369ADFC4A8AD 6. BILLING AND PAYMENT: 6.1 Billing and payment arrangements shall be as set forth on Exhibit 6, attached hereto and made part of this Agreement. 7. METERING: 7.1 It is the Parties' intent that Tri-State Generation and Transmission Association, Inc. shall own, operate and maintain all necessary meters, dedicated potential and current transformers, and associated equipment to be utilized for the measurement of energy for determining Seller's payments to Tri-County under the Tri-County Agreement. Buyer and Seller agree to utilize such measurement data to determine Buyer's payments to Seller pursuant to this Agreement. Metering equipment is installed at the Point of Delivery and shall be used to measure the Metered Energy. The Metered Energy shall be used to calculate the Buyer's Share of Output by means of the formula defined in Exhibit 4. In the event the foregoing metering arrangement is not in place at any time during the term of this Agreement, then the following metering arrangements will apply: Under the Tri-County Agreement, Tri-County 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 Seller's payments to Tri-County under the Tri-County Agreement. Buyer and Seller agree to utilize such measurement data to determine 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 Buyer's Share of Output by means of the formula defined in Exhibit 4. 7.2 A one line drawing depicting the interconnection of the Unit to the Point of Delivery and the placement of Tri-County's metering installation is set forth in Exhibit 5. 7.3 Seller will request Tri-County to test the meters as requested by Buyer upon 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 Tri-County. Under the Tri- County Agreement, metering equipment found to be inaccurate by more than 2% shall be repaired, adjusted, or replaced by Tri-County, at Tri-County'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 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 and to and from Tri-County relating to this Agreement, including but not limited DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD 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 any and all costs or charges assessed by Tri-County under the Tri-County Agreement, including without limitation costs and charges related to the operation and maintenance of the Unit, if any. 8.2 Employees of Buyer and agents of Buyer 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, Tri-County 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-County or 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 terms thereof and, where applicable, not merely for the purpose of example. 11. LIABILITY: To the extent allowed by law, Seller shall save, defend, and hold harmless, 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 or after 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. 6 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD 12. INSURANCE: Seller will require Tri-County to obtain and maintain, and cause any contractor or subcontractor engaged by Tri-County 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 Tri-County 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 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 7 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD imposed upon Tri-County 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 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 ❑ELIVERY: Seller and Buyer acknowledge that the Tri-County Agreement was made expressly subordinate to any present or future use of water for any purpose or any other use Tri- County 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 Tri-County 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 Tri- County 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 Share of Output shall include all associated Environmental Attributes. Seller, or Tri-County at request of Seller and MEAN, 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 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 8 DocuSign Envelope ID: 62193DE1 -CB1 6-4FD3-9736-369ADFC4A8AD 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 Share of 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 Share of 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 Share of Output to a third party. Seller's full and exclusive ownership rights to the Environmental Attributes arising from Output described herein are not being disputed; and the energy that was generated with the Environmental Attributes arising from Buyer's Share of 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, 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 of 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: 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. DocuSign Envelope ID: 62193DE1-C1316-4FD3-9736-369ADFC4A8AD 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: To Buyer: Attn: Director of Utilities Aspen Electric Department of the City of Aspen 500 Doolittle Drive Aspen, CO 81611 justin.forman@aspen.gov Phone 970 429-1992 Fax 970 920-5117 Attn: Executive Director Municipal Energy Agency of Nebraska (MEAN) 8377 Glynoaks Drive Lincoln, NE 68516 b oeliHn nm ever \ .car,,, with a copy to legal(@,ninppenergy.org Phone 402 474-4759 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. 10 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4ABAD 24. LIMITATION OF LIABILITY: EXCEPT AS OTHERWISE PROVIDED HEREIN, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY IN CONNECTION WITH THE TRANSACTIONS) CONTEMPLATED BY THIS AGREEMENT FOR ANY 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, its 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. 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. 27. 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. 28. 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 11 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD resolution of the dispute. In the event that the Parties, through their respective governing bodies cannot agree to a resolution of any dispute within thirty (30) days after the commencement of negotiations, either Party may seek available legal remedies. 29. 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. 30. 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. In addition, the Parties agree to work together in good faith to make necessary or desired changes to the terms and conditions of this Agreement to honor the intent of this Agreement in the event the applicable balancing authority or transmission service provider joins a regional transmission organization or independent system operator or otherwise transfers functional control to another entity. Notwithstanding the foregoing, no such changes shall affect or modify the rate for energy, capacity and Environmental Attributes unless such change is set forth in an amendment to this Agreement and signed by authorized representatives of both Parties. 31. TIME: Time is of the essence hereof. 32. 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 12 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD 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. 33. 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® 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.] 13 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD 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: ASPEN ELECTRIC DEPARTMENT OF THE CITY OF ASPEN, COLORADO aocuSiprved by: Spyq By: G, Off 9/28/2023 1 9:45:08 AM PDT Sara Ott, City Manager Date DocuSigned by: L t 9/27/2023 1 2:57:34 PM MDT Attest: Date BUYER: MUNICIPAL ENERGY AGENCY OF NEBRASKA Robert L L Poelhpng ly signed by Robert Poehlin Date:2023.09.18 B v: g 10:30:19-05'00' Robert L. Poehling, Executive Director/CEO Date 14 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD 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 Exhibit 6 BILLING AND PAYMENT ARRANGEMENTS 15 DocuSign Envelope ID: 62193DE1-CB164FD3-9736-369ADFC4A8AD 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. 16 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD EXHIBIT 2 VICINITY MAP SHOWING THE SITE AND THE GENERAL LOCATION OF THE UNIT 17 _ ]q �tbk�gfeic. � � •ti — �k. •. _ fi;`" _ �.,Qi.}.lslr��'i _^tom -- � IL �'f7r.' ' 'F • .";'y *n 7•�`,�1 • •l����'s, ir1 J�•]4'2rs10 = Loft i Are* Ya ��.•ir t err ��.: � �,� ������*, •i Ridgway Reservoir ,� tea.:.... � I � • • " � { ~�yyT DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A6AD EXHIBIT 3 Table of Rates (Capacity & Energy) Period Winter Rate Summer Rate (Months) Oct 1-April 30 May 1-Sept 30 ($/MWh) $/MWh Oct 1, 2023-Sep 30, 70.55 49.00 2024 Oct 1, 2024-Sep 30, 71.97 49.98 2025 Oct 1, 2025-Sep 30, 73.41 50.98 2026 Oct 1, 2026-Sep 30- 74.88 52.00 2027 Oct 1, 2027-Sep 76.38 53.04 30,2028 Oct 1, 2028-Sep 77.91 54.10 30.2029 77.91 55.18 Oct 1, 2029-Sep 30,2030 Oct 1, 2030-Sep 30, 77.91 56.29 2031 Oct 1, 2031-Sep 30, 77.91 57.41 2032 Oct 1, 2032-Sep 30, 77.91 58.56 2033 Oct 1, 2033-April 30, 77.91 N/A 2034 19 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD EXHIBIT 4 CALCULATION OF OUTPUT AND COST For this Agreement, the Buyer's Share of Output to be purchased by Buyer and delivered by Seller at the Point of Delivery shall be measured in megawatt -hours as calculated on a monthly basis using the following formula: Buyer's Share of Output = (Metered Energy) x (Buyer's Share, as that term is defined below) Cost to Buyer = (Buyer's Share of Output) x (Rate from Exhibit 3) Buyer's Share of Output means the following portion of the total electric energy produced by the Unit and delivered by Tri-County at the Point of Delivery. The remainder of the total electric energy produced by the Unit and delivered by Tri-County at the Point of Delivery shall be considered Seller's share of Output, not Buyer's Share, and shall be excluded from the purchase and sale obligation under the A eement: Summer (May through September) Winter (October through April) Buyer's Share 67% 20% Seller's Share 33% 80% Parties will annually review the five year rolling average of Seller's Share of Output to compare to the estimates of hydropower production set forth in Seller's Exhibit B to its Supplemental Agreement with MEAN, or any successor agreement thereto, and the Parties agree to update the split if the 5 year rolling average is materially greater than such estimates. 20 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD EXHIBIT 5 INTERCONNECTION AND METERING DESCRIPTION RIDGWAY RESERVOIR/DAM S�Ip 7numum i A.16KV V IIEIN I3 nw 7.2 mw r GINERATM STATION jI I! f I E 0 8 d� F � POINT Of I POINT OF CHANGE INTMCM EGTION OP41) OF OWNERSHIP MCI) Nut 10 i EA-\ -(�� E�- ahlblt 5 _r NETWORK UPGRADE INTERCONNECT Interconnection Detail TRI-STATE GIST SMSTATION SCHEMATIC - Nw TO SCALE 21 DocuSign Envelope ID: 62193DE1-CB164FD3-9736-369ADFC4A8AD EXHIBIT 6 BILLING AND PAYMENT ARRANGEMENTS 1. The Cost to Buyer for each Billing Period shall be the product of the Buyer's Share of Output (in megawatt -hours) delivered to Buyer, pursuant to Section 5 of the Agreement, during such Billing Period, times the applicable Energy Rate as set forth in Exhibit 3 of the Agreement. 2. Buyer will create a report each month with the Metered Energy and send it to Tri- County and Seller. This report will be generated on or about the Ist business day of the following month and will be in MST, unless otherwise specified. In accordance with Section 7.1 of the Agreement, the Metered Energy shown on the report shall be used to calculate the Buyer's Share of Output by means of the formula defined in Exhibit 4 of the Agreement. 3. If there are any questions about the data, these need to be submitted to Buyer in writing within -three (3) business days for prompt resolution. 4. Seller shall submit to Buyer by the 1 Oth day of the month an invoice, for the preceding Billing Period, for the Buyer's Share of Output from the Unit delivered to Buyer at the Point of Delivery. Such invoices 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 of the Agreement using the calculation defined in Exhibit 4, and the total amount due to Seller. Buyer shall make payment to Seller, by electronic transfer of such payment, within seven (7) business 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 electronic transfer is received by Seller. Interest on any unpaid 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. Information necessary to accomplish electronic transfer of payments due shall be provided in writing. 7. In the event that any portion of an invoice is in dispute, the amount invoiced shall be paid in accordance with the terns of #5 of this Exhibit. The Parties shall use their best efforts to amicably and promptly resolve the dispute. Upon determination of the correct billing amount, and agreed to by both Parties, the proper adjustment will be included on the next month's invoice unless other arrangements are agreed to by both Parties, including a credit for interest on any refunds at the rate of one percent per month or fraction thereof accruing from the due date of the original invoice to the date upon which payment is refunded. 22 DocuSign Envelope ID: 62193DE1-Cl316-4FD3-9736-369ADFC4A8AD POWER PURCHASE AGREEMENT BETWEEN CITY OF ASPEN AND MUNICIPAL ENERGY AGENCY OF NEBRASKA This Power Purchase Agreement ("Agreement") is made and entered into this day of September 26, 2023 , ("Effective Date") by and between the Municipal Energy Agency of Nebraska, hereinafter referred to as "Buyer", and on behalf of its successors and assigns, and the Aspen Electric Department of the City of Aspen, Colorado, 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) of the Colorado Constitution and is owned and operated by the City of Aspen. 1.2 Municipal Energy Agency of Nebraska is a political subdivision and public corporation of the State of Nebraska. 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 Tri-County Water Conservancy District, a public and quasi municipal corporation ("Tri-County"), 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 Tri-County produces electric energy through the utilization and operation of one or more hydropower generators at the Site ("Facility"). 1.6 Pursuant to the Amended and Restated Power Purchase Agreement executed by and between Seller and Tri-County ("Tri-County Agreement"), Seller purchases from Tri-County capacity and energy generated during each year subject to the terms and conditions set forth in the Tri-County Agreement, with the intent to resell a portion of the capacity and energy to Buyer under the terms and conditions set forth in this Agreement. Now, therefore, in consideration of the mutual 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: DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD 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, during which energy generation is aggregated for the purpose of sale by Seller and purchase by Buyer. 2.2 "Buyer's Share of Output" means the portion of 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 Agrccmcnt, 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 total electric energy produced by the Unit which is purchased by Buyer under this Agreement. 2.3 "Effective Date" is the date stated on page one of this Agreement. 2.4 "Energy Rate(s)" is as shown in Exhibit 3, attached hereto, and made a part of this Agreement. 2.5 "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. 2.6 "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 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD equipment, communications and telemetering equipment, protective devices and safety equipment. 2.7 "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 2.8 "Metered Energy" is the monthly electric energy output from the Unit, measured at the Point of Delivery. 2.9 "Output" means the electric energy produced by the Unit. 2.10 "Point of Delivery" shall mean the Tri-State Generation and Transmission Association, Inc. meter located in the Cow Creek substation as depicted on Exhibit 5, attached hereto, and made a part of this Agreement, unless mutually agreed to hereinafter by Seller and Buyer, also known as "Point of Change of Ownership." 2.11 "Site" means all components of Tri-County Hydropower Generating Facility located in Ouray County, Colorado approximately six miles north of the Town of Ridgway at the Ridgway Reservoir Dam, as described in Exhibit 2, attached hereto, and made part of this Agreement, and Tri-County's interconnection facilities needed to produce electricity and deliver such electricity to the Interconnection Point, as described in Exhibit 5. 2.12 "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. 2.13 "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. 2. 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 portion of capacity and Output as calculated in accordance with Exhibit 4 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 Buyer 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 associated with Buyer's Share of the Output 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 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD 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 amount of energy expected to be delivered on an hourly basis under this Agreement by such means as the Parties shall mutually agree upon. 4. TERM AND TERMIIVATION• AND OPTION TO EXTEND: 4.1 This Agreement shall be in force and effect for a term of October 1, 2023 through 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 dcfault 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. 4.3 Option to Extend Term. Buyer acknowledges that the Tri-County Agreement term ends on April 30, 2034, and Seller has an option to extend the Tri-County Agreement for the purchase of Output if the terms of extension are agreeable to Tri-County and Seller. 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, and shall be subject to Seller extending the Tri-County Agreement through the term of the extension of this Agreement. 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 Buyer's Share of Output shall be calculated using the applicable rate set forth in Exhibit 3. 5.2 The Buyer's Share of Output shall be delivered to Buyer at the Point of Delivery, which shall be deemed the point of sale, and purchased by Buyer. 4 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A6AD 6. BILLING AND PAYMENT: 6.1 Billing and payment arrangements shall be as set forth on Exhibit 6, attached hereto and made part of this Agreement. 7. METERING: 7.1 It is the Parties' intent that Tri-State Generation and Transmission Association, Inc. shall own, operate and maintain all necessary meters, dedicated potential and current transformers, and associated equipment to be utilized for the measurement of energy for determining Seller's payments to Tri-County under the Tri-County Agreement. Buyer and Seller agree to utilize such measurement data to determine Buyer's payments to Seller pursuant to this Agreement. Metering equipment is installed at the Point of Delivery and shall be used to measure the Metered Energy. The Metered Energy shall be used to calculate the Buyer's Share of Output by means of the formula defined in Exhibit 4. In the event the foregoing metering arrangement is not in place at any time during the tern of this Agreement, then the following metering arrangements will apply: Under the Tri-County Agreement, Tri-County 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 Seller's payments to Tri-County under the Tri-County Agreement. Buyer and Seller agree to utilize such measurement data to determine 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 Buyer's Share of Output by means of the formula defined in Exhibit 4. 7.2 A one line drawing depicting the interconnection of the Unit to the Point of Delivery and the placement of Tri-County's metering installation is set forth in Exhibit 5. 7.3 Seller will request Tri-County to test the meters as requested by Buyer upon 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 Tri-County. Under the Tri- County Agreement, metering equipment found to be inaccurate by more than 2% shall be repaired, adjusted, or replaced by Tri-County, at Tri-County'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 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 and to and from Tri-County relating to this Agreement, including but not limited 5 DocuSign Envelope ID: 62193DE1-Cl3164FD3-9736-369ADFC4A8AD 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 any and all costs or charges assessed by Tri-County under the Tri-County Agreement, including without limitation costs and charges related to the operation and maintenance of the Unit, if any. 8.2 Employees of Buyer and agents of Buyer 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, Tri-County 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-County or 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 terms thereof and, where applicable, not merely for the purpose of example. 11. LIABILITY: To the extent allowed by law, Seller shall save, defend, and hold harmless, 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 or after 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. 6 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4ABAD 12. INSURANCE: Seller will require Tri-County to obtain and maintain, and cause any contractor or subcontractor engaged by Tri-County 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 Tri-County 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 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 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD imposed upon Tri-County 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 prcvents 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: Seller and Buyer acknowledge that the Tri-County Agreement was made expressly subordinate to any present or future use of water for any purpose or any other use Tri- County 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 Tri-County 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 Tri- County 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 Share of Output shall include all associated Environmental Attributes. Seller, or Tri-County at request of Seller and MEAN, 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 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 8 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD 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 Share of 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 Share of 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 Share of Output to a third party. Seller's full and exclusive ownership rights to the Environmental Attributes arising from Output described herein are not being disputed; and the energy that was generated with the Environmental Attributes arising from Buyer's Share of 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, 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 of 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: 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. 9 DocuSign Envelope ID: 62193DE1-CB164FD3-9736-369ADFC4A8AD 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: To Buyer: Attn: Director of Utilities Aspen Electric Department of the City of Aspen 500 Doolittle Drive Aspen, CO 81611 justin.forman@aspen.gov Phone 970 429-1992 Fax 970 920-5117 Attn: Executive Director Municipal Energy Agency of Nebraska (MEAN) 8377 Glynoaks Drive Lincoln, NE 68516 b oelflili g cinln ever .or , with a copy to legal@nmppenergy.org Phone 402 474-4759 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. 10 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4ABAD 24. LD41TATION 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 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, its 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. 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. 27. RELIANCE AND SURVIVAL OF REPRESENTATIONS AN]) 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. 28. 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 11 DocuSign Envelope ID: 62193DE1-CB164FD3-9736-369ADFC4A8AD resolution of the dispute. In the event that the Parties, through their respective governing bodies cannot agree to a resolution of any dispute within thirty (30) days after the commencement of negotiations, either Party may seek available legal remedies. 29. 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. 30. 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. In addition, the Parties agree to work together in good faith to make necessary or desired changes to the terns and conditions of this Agreement to honor the intent of this Agreement in the event the applicable balancing authority or transmission service provider joins a regional transmission organization or independent system operator or otherwise transfers functional control to another entity. Notwithstanding the foregoing, no such changes shall affect or modify the rate for energy, capacity and Environmental Attributes unless such change is set forth in an amendment to this Agreement and signed by authorized representatives of both Parties. 31. TIME: Time is of the essence hereof. 32. 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 12 DocuSign Envelope ID: 62193DE1-CB164FD3-9736-369ADFC4A8AD 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. 33. 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® 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] 13 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD 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: ASPEN ELECTRIC DEPARTMENT OF THE CITY OF ASPEN, COLORADO Aactiftned by: By: �aYa G. Off 9/28/2023 i 9:45:08 AM PDT Sara Ott, City Manager Date L)oc USgned by: Attest: �(�(�,9/27/2023 i 2:57:34 PM MDT �"-� Date BUYER: MUNICIPAL ENERGY AGENCY OF NEBRASKA Dlpoehling signed by Robert Robert L Litally Date: 20 By: Poehling 110:3019-0500'8 Robert L. Poehling, Executive Director/CEO Date 14 DocuSign Envelope ID: 62193DE1-CB164FD3-9736-369ANNA8AD 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 Exhibit 6 BILLING AND PAYMENT ARRANGEMENTS 15 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD 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. 16 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD EXHIBIT 2 VICINITY MAP SHOWING THE SITE AND THE GENERAL LOCATION OF THE UNIT 17 DocuSign Envelope ID: 62193DE1-CB164FD3-9736-369ADFC4A8AD EXHIBIT 3 Table of Rates (Capacity & Energy) Period Winter Rate Summer Rate (Months) Oct 1-April 30 May 1-Sept 30 ($/MWh) $/MWh Oct 1, 2023-Sep 30, 70.55 49.00 2024 Oct 1, 2024-Sep 30, 71.97 49.98 2025 Oct 1, 2025-Sep 30, 73.41 50.98 2026 Oct 1, 2026-Sep 30- 74.88 52.00 2027 Oct 1, 2027-Sep 76.38 53.04 30,2028 Oct 1, 2028-Sep 77.91 54.10 30.2029 55.18 Oct 1, 2029-Sep 77.91 30,2030 Oct 1, 2030-Sep 30, 77.91 56.29 2031 Oct 1, 2031-Sep 30, 77.91 57.41 2032 Oct 1, 2032-Sep 30, 77.91 58.56 2033 Oct 1, 2033-April 30, 77.91 N/A 2034 19 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD EXHIBIT 4 CALCULATION OF OUTPUT AND COST For this Agreement, the Buyer's Share of Output to be purchased by Buyer and delivered by Seller at the Point of Delivery shall be measured in megawatt -hours as calculated on a monthly basis using the following formula: Buyer's Share of Output = (Metered Energy) x (Buyer's Share, as that term is defined below) Cost to Buyer = (Buyer's Share of Output) x (Rate from Exhibit 3) Buycr's Share of Output means the following portion of the total electric energy produced by the Unit and delivered by Tri-County at the Point of Delivery. The remainder of the total electric energy produced by the Unit and delivered by Tri-County at the Point of Delivery shall be considered Seller's share of Output, not Buyer's Share, and shall be excluded from the purchase and sale obligation under the Agreement: Summer (May through Winter (October Bu er's Share 67% 20% Seller's Share 33% 80% Parties will annually review the five year rolling average of Seller's Share of Output to compare to the estimates of hydropower production set forth in Seller's Exhibit B to its Supplemental Agreement with MEAN, or any successor agreement thereto, and the Parties agree to update the split if the 5 year rolling average is materially greater than such estimates. 20 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD EXHIBIT 5 INTERCONNECTION AND METERING DESCRIPTION RIDGWAY RESEVCIRMARN S�-IP Twarumm 4.16KYTo115W fr1 m rNa � PlW 3 .8 mw 7�. I 1 GMIRAT R STATION 8 O f 1 POINT OF 1 l POiINT CF CHANGE INTE RCM FCTION (POI) OF OWNERWIP (PCO) ReveKt>e Fret Exhibit 5 r NETWORK UPGRADE INTEROONMECT Interconnection Detail TRI-STATE G&T SLOSTATION SCHSIATIC - NOT To SCALE 21 DocuSign Envelope ID: 62193DE1-CB16-4FD3-9736-369ADFC4A8AD EXHIBIT 6 BILLING AND PAYMENT ARRANGEMENTS 1. The Cost to Buyer for each Billing Period shall be the product of the Buyer's Share of Output (in megawatt -hours) delivered to Buyer, pursuant to Section 5 of the Agreement, during such Billing Period, times the applicable Energy Rate as set forth in Exhibit 3 of the Agreement. 2. Buyer will create a report each month with the Metered Energy and send it to Tri- County and Seller. This report will be generated on or about the I't business day of the following month and will be in MST, unless otherwise specified. In accordance with Section 7.1 of the Agreement, the Metered Energy shown on the report shall be used to calculate the Buyer's Share of Output by mcans of the formula defined in Exhibit 4 of the Agreement. 3. If there are any questions about the data, these need to be submitted to Buyer in writing within three (3) business days for prompt resolution. 4. Seller shall submit to Buyer by the 10th day of the month an invoice, for the preceding Billing Period, for the Buyer's Share of Output from the Unit delivered to Buyer at the Point of Delivery. Such invoices 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 of the Agreement using the calculation defined in Exhibit 4, and the total amount due to Seller. Buyer shall make payment to Seller, by electronic transfer of such payment, within seven (7) business 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 electronic transfer is received by Seller. Interest on any unpaid 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. Information necessary to accomplish electronic transfer of payments due shall be provided in writing. 7. In the event that any portion of an invoice is in dispute, the amount invoiced shall be paid in accordance with the terms of #5 of this Exhibit. The Parties shall use their best efforts to amicably and promptly resolve the dispute. Upon determination of the correct billing amount, and agreed to by both Parties, the proper adjustment will be included on the next month's invoice unless other arrangements are agreed to by both Parties, including a credit for interest on any refunds at the rate of one percent per month or fraction thereof accruing from the due date of the original invoice to the date upon which payment is refunded. 22