HomeMy WebLinkAboutresolution.council.019-99
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RESOLUTION NO. ~
Series of 19~
A RESOLUTION APPROVING A WIND GENERATED ENERGY PURCHASE
SUPPLEMENTAL AGREEMENT BETWEEN THE MUNICIPAL ENERGY AGENCY OF
NEBRASKA AND THE CITY OF ASPEN, COLORADO, RELATING TO THE EXISTING
ELECTRICAL RESOURCES POOLING AGREEMENT AND TOTAL POWER
REQUIREMENTS PURCHASE AGREEMENT, AND AUTHORIZING THE CITY MANAGER
TO EXECUTE SAID SUPPLEMENTAL AGREEMENT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, there has been submitted to the City Council a wind generated energy purchase
supplemental agreement between the Municipal Energy Agency of Nebraska, and the City of Aspen,
a true and accurate copy of which is attached hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN,
COLORADO:
That the City Council of the City of Aspen hereby approves that wind generated energy
r'"'. purchase supplemental agreement between the Municipal Energy Agency of Nebraska., and the City
of Aspen, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the
City Manager of the City of Aspen to execute said agreement amendment on behalf of the City of
Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the
dO d'Y'~l99~ U(f,
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S. Bennett, Mayor
I, Kathrytl S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a
true and accurate'copy of that resolution adopted by the City Council of the City of Aspen, Colorado,
at a meeting held on the day hereinabove stated.
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Supplemental Agreement
between
MUllicipal Energy Agency of Nebraska
and
The City of Aspen, Colorado
TI-IIS WIND-GENERATED ENERGY PURCHASE AGREEMENT ("Agreement") is
made between the Municipal Ellergy Agency of Nebraska, an agency and political subdivision of
the State of Nebraska ("MEAl''') and the City of Aspen, Colorado, a home rule city of the State
of Colorado ("Aspen") on this._ day of .1999. MEAN and Aspen are sometimes
referred to collectively as the Parties and individually as Party.
WHEREAS, Aspen is a municipal corporation created under the Constitution of the laws
of the State of Colorado; and
WHEREAS, Aspen has established by ordinance an electric enterprise ("Enterprise")
having the authority to in all re ;pects act as an enterprise under Colorado law, Colorado
Constitution Article X, 9 20; ar;d
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WHEREAS, Aspen and MEAN have entered into an Electrical Resources Pooling
Agreement and a Total Power ltequirements Power Purchasc Agreement, pursuant to which
MEAN is to acquire and delive: to Aspen all of Aspen's electrical energy needs (except as
otherwise provided in the SeptE mber 1, 1995 Revised Supplemental Agreement between the
Parties); and
WHEREAS, Aspen has requested MEAN to purchase and deliver to Aspen wind.
generated electrical energy as part of Aspens's total electrical energy requirements; and
WHEREAS, due to uni1lue circumstances affecting the sale of wind-generated electric
capacity and energy, the Partie~ desire to agree on certain contractual terms and conditions in
addition to those that normally attend the sale of the electric capacity and energy by MEAN to
Aspen; and
WHEREAS, Aspen understands and acknowledges that the energy output from a wind
turbine is weather sensitive and speculative in nature and, therefore, it is likely that MEAN may
incur sCheduling and I or deliv~ ry imbalance penalties and surcharges regarding the delivery of
such energy to Aspen; and
WHEREAS, MEAN h~1 or will enter into a Wind Energy Purchase Agreement with the
Platte River Power Authority ("PRPA") to purchase wind-generated electrical energy exclusively
~. on behalf of Aspen; and
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WHEREAS, Aspen understands that but for Aspen's request, MEAN would not presently
enter into a wind-generated e1e :trical energy purchase contract with PRP A; and
WHEREAS, Aspen agt :es to hold MEAN :financially harmless for any and aU costs
associated with the purchase !II ,d delivery of the wind-generated energy to Aspen, including any
scheduling or balancing surcha egcs or penalties which may be incurred from time-to-time
because of the weather sensitiv: and speculative nature of wind-generated energy.
NOW, THEREFORE, in COl1sideration of the mutual pronlises and covenants contained
herein and other good and valuable consideration the sufficiency of which is hereby
acknowledged by the Parties, the Parties hereby agree as follows:
1. Representations and Warranties.
A Aspen and Enterpril e represent and warrant .that this Agreement has been executed in
compliance with or is o.hcrwise not subject to Article X, ~ 20, of the Colorado
Constitution (coInlnonl:,' known as the Taxpayer's Bill of Rights or "TABOR") which
requires voter approval Df certain multi-year governmental financial obligations.
B. Upon request, Aspen shall provide an opinion ofIegal counsel that this Agreement
has been duly authorize 1, executed and delivered by Aspen or the Enterprise and that all
financial obligations un :Iertaken or assumed by the Enterprise in connection herewith are
valid and enforceable al :ainst the Enterprise in accordance with their terms.
2.
Obligations of the Par:ies.
A. MEAN shall purchase and deliver to Aspen the "Proponional Net Output", as those
terms are defmed in Exllibit A, pursuant to MEAN's agreement with PRP A. A copy of
MEAN's agreement wi1 h PRP A is attached hereto as Exhibit A.
B. MEAN shall use its ~vai1able resources and its best efforts to prevent any scheduling,
balancing, or distributio n penalties Or surcharges from being incurred in the delivery of
the wind-generated elec :rica! energy to Aspen.
C. Aspen shall receive .lnd pay aU costs associated with the wind-generated electrical
capacity and energy from the Proponional Net Output delivered by MEAN to Aspen for
the teOll of this Agreem~nt.
3.
Charges.
A. Aspen agrees to be solely responsible and to hold MEAN financially harmless for any
and all costs associated .vith the acquisition and delivery of the wind-generated electrical
capacity and energy deT: ved from the Proponional Net Output to Aspen, including any
and all energy- related c I1arges, wheeling charges or other costs associated with the
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transmission of said ele ;trical energy from the Point of Delivery in Exhibit A, and any
surcharges or penalties: ncurred as a result of transmitting such electrical energy to
Aspen. A detailed expl mation of these charges and potential penalties is set forth ill
Exhibit A.
B. The billing period s] tall consist of one calendar month.
C. MEAN will issue a :nonthly invoice to Aspen reflecting the cost of acquiring and
delivering the wind-generated electrical energy, including a dispatch and scheduling fee
of 4.5%, during the pre(:eding month within fifteen (15) days after the end of the billing
period.
D. If MEAN is unable .:0 issue a timely monthly bill, it may elect to render an estimated
bill for that month to be followed by a final bill. Such estimated bill shaU be subject to
the same provisions as ~; final bill.
E. Payments are due from Aspen to MEAN before the close of business on the twentieth
(20th) calendar clay foIJ,lwing the date of the issuance of each bill. .Bills are considered
paid when payment is r"ceived by MEAN.
F. Should Aspen dispul e any part of a final bill rendered by MEAN, Aspen shall timely
pay the undisputed port.on of the bill. When the Parties have resolved the disputed
portion of the bill, Aspe n shall promptly pay the agreed upon remaining portion of the
bill.
4.
Lillbility. Aspen shall "ave, defend, and hold hann1ess MEAN, its officers, employees,
and agents from any ancl all claims relating to MEAN's acquisition and delivery of
electrical capacity auld Energy pursuant to the MEANIPRP A agreement, which is attached
as Exhibit A, or in the l' .utherance of this Agreement.
5.
Term of Agreemellt. This Agreement shall be effective as of the "Commercial Date," as
defmcd in Exhibit A, aId shall remain in effect for the: twenty (20) year Term identified
in Exhibit A This Agn:ement shall automatically terminate unless either Party gives
notice to the other party of its election to extend the Agreement for another term. Notice
ofa Party's intention to extend the Agreement shall be given to the other PartY in writing
at least sixty (60) days l'nor to the nineteenth (19th) anniversary of the "Commercial
Date.," as that term is de fined in Exhibit A.
6.
Severability. If any provision of this Agreement is determined by any court or regulatory
body having jurisdictioll over this Agreement to be invalid or unenforceable, then it is the
intention of the Parties 1 hat in lieu of each such invalid or unenforceable provision, there
be added as part of tills A.greement a provision as similar in terms as possible to such
invalid or W1enforceablo provision. The remaining portions of the Agreement shall not be
affected thereby and shd] remai.n in full force and effect.
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7. Integration Clause. l1us Agreement and the attached Exhibit(s) constitute the completc
agreement of the Partie~. relating to the matter specified in tlus Agreement and supersede
all prior representations or agreements, whether oral or written, with respect to such
matters. No modification of the Agrccmellt shall be binding upon either Party unless
agreed to in writing and signed by both Parties.
8. Waiver. Any waiver at any time by either Party to the Agreement of its rights with
respect to a default or allY other matter arising under or in connection with the Agreement
shall not be deemed a VI aiver with respect to any subsequent default or matter arising
llnder or in connection with the Agreement
9. Governing Law. This <\greement shall be governed by and interpreted in accordance
with the substantive an, procedural laws of the State of Nebraska, excluding any conflict-
of-law rules and principles of that jurisdiction wluch would result in reference to the laws
or law rules of another jurisdiction.
10.
Regulatory Approvals This Agreement may be subject to the regulatory powers of any
state or federal agency 1 ,aving jurisdiction. Each Party shall use its best efforts and shall
cooperate with the otheJ Party to obtain from all such state and federal authorities as may
have jurisdiction, all aul horizations, approvals, and orders to the extent required by law in
order to enable them to ..alidly enter into this Agreement and to perform all their
obligations hereunder.
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11, Foree Majeure. No Pa:ty shall be liable for any failure to perform its obligations in
connection with this Ag rcement, where such failure results from any act of God or other
causes beyond such Par y' s reasonable control (including, without limitation, war,
extreme weather conditi ons, stril,es, fires, embargos, actions of civil or military
enforcement authorities: I and which, by the exercise of due diligence, such Party is un.able
to prevent or overcOme. Any Party that becomes unable to perform its obligations under
this Agreement because of any such event shall immediately give notice to the other Party
of the occurrence of suc it an event, and shall promptly notity tI,e other Party of the
anticipated duration of, uch an event.
12. Changes in Regull11tiolls. Should changes in legislation or regulation, either state or
federal, make perfoffilance by either Party under the Agreement commercially
irnpracticable or imposs ible, the Parties agree that they will renegotiate the terms of the
Agreement as they have been affected by such change in regulation or legislation.
13.
Notices. All notices re~uircd or permitted to be given with respect to this Agreement
shall be given by (1) mailing the same postage prepaid, (2) given by facsimile or by
courier, or (3) by other methods specified in the Exhibit(s) to tlle addressee Party at such
Party's address as set fo rth below. Either Party mllY change its address for the purpose of
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notice hereunder by giv:ng the other Party no less than fj ve (5) days prior written notice
of such new address in : lccordance with the preceding provisions.
To MEAN: Municil!al Energy Agency of Nebraska
ATTN: Executive Director
P.O. Bo, 95124
Lincoln, Nebraska 68509
(402) 47.1-4759 voice
(402) 47.1-0473 fax
To Aspen:
The Citr of Aspen
A TTN: City Manager
130 Soulh Galena
Aspen, Colorado 81611
(970) 92' ).5000 voice
(970) 92iJ-5117 fax
14. Assignment. Neither !lis Agreement nor the rights or obligations of the Parties under
this Agree.ment may be lSsigned or transferred by either Party without the prior written
approval of the other Party, which approval shall not be unreasonably withheld; provided,
any assignment or trans:'er, whether by merger or otherwise, to a Party's affiliate or
successor in interest sha II be permitted without prior consent if such Party assumes this
Agreement.
15. Arbitration. If a displr e between the Parties should arise under this Agreement, either
Party may call for submlssion of the dispute to arbitration, which cal! shall be binding
upon the other Party. T le arbitration shall be governed by the rules and practice of the
American Arbitration A ssociation (or the rules and practice of a similar organization if
the American Arbitratio 11 Association should not then exist), with the proviso that the
arbitration panel shall, h all events, consist of (3) arbitrators, one chosen by each of the
Pal1ies alld the third che sen by those two arbitrators.
IN WITNESS WHEREOF. the Parties hereto have caused tins Agreement to be executed in their
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respective names as of the date and year -first above written.
MUNICIPAL ENERGY AGJ:NCY OF NEBRASKA
By:
Executive Director
Attest:
CITY OF ASPEN
By:
City Manager
Attest:
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Exhibit A
1><&11:47463
LIST OF EXHIBITS
Wind Energy Puchase Agreement among Municipal Energy Agency of Nebraska
and Platte River Power Authority.
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EXECUTION DRAfT. 03/03;'99
WINO ENERGY PURCHASE AGREEMENT
BETWEEN
THE MUNICIPAL ENERGY AGENCY Of NEBRASKA
AND
PLATrE RIVER POWER AUTHORITY
'This Wind Energy PurCAAse Agreement (Agreement) is made and emered Ulto this _ day of
.1999. by and between the Municipal Energy Agency of Nebraska. an agency
iUld political subdivision of the State of Nebraska. hE!leinaftel' referred to as "MEAN:' its
successors and asSigns. and Plaue River Power Authority, a political subdivision and public
corporation of me State of Coloraelo. hereinafter referred to as "Plarte River:' its successors iUld
assigns. MEAN and Platte River are hereinafter known cOllecnvely as the Panies and
in~ivid"aUy as a P<aty.
1.
REcrr ALS:
1.1 MEAN provides electrICal energy requirements to its members on an "aU
requirements" basis. and one such member. the City of Aspen. has developed a
renewable resource program deSigned to promote the development of wind.
powered electrical energy resources.
1.2 Platte River owns and operates wind-generation units and holds wind-
generation development rights and related assets at the Medicine Bow Wind
Project (MBWP) site. near th~ town of Medicine Bow. Wyoming.
1.3 Platte River intends to enter into a contract with Vestas American Wind
Technology. mc. ("Vestas") for the purChase. constrUction and installation of new
wind-powerecl electricIty generating turbines at the MaW? site. A desctiption of
the wind t1.Irbine Unit associated w.th this Agrl'ellU!nt is provicled In Exhibit 1.
attached hereto. and made a part hereof. The prospective location of the Unit is
shown in Exlubit 2, attached hereto, and made a part hereof.
VI Platte River desires to sell. and MEAN d.-51res to purchase. me Net Output ftom
the Unit subj~ to the terms and conditions set forth in this Agreement and at
the priCes set forth in this Agreement.
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2. DEFINITIONS: For purposes of this Agreement, all terms used herein with initial
capital Ieners, and not otherwise textually defined, shall have the definitions ascribed to
them In this Section 2:
2.1 "Billing P"tiod" is a period of time, nOlttlaUy coi:nc:iding with a calendar mooth,
during which eMrgy geMration 15 aggregated for the purpose of sale by Platte
River and purchase by MEAN.
2.2 "Commercial Operation" is that pOint in time whEm Vestas successfully
demonstrates and Platte River concms in writing that: (1) cot\Struction and
installation 01 the Unit is complete, (2) installation of Interconnection Facilities is
complete, (3) the Unit meets commissloning certificatipn reqmremenrs agreed
upon by Platte River and Vestas, and (4) the Unit provides energy to the Point of
Delivery.
2.3 "Commercial Date" is the fitst full day following Commercial Operation of the
Unit, which shall \?e on or before October 31,1999.
"Effective Date" L~ the date stated on page one of this Agr~ment
"Energy Rate" is as shown in Exhibit 3, attached hereto, and made a part of this
agreement.
"Interc:onnection Fadlities" means aU of the necessary electrical connection
facUlties which have been or must be installed or modified for the purpose of
interconnecting the Unit to Western Area Power Administration's (Western's)
34,.5 \<.V line at the MaW? site. Interconnection Facilities include, put are not
limite4 to, metering equipment, tlansformers and associated equipment,
distribution lines and equipment, comrmuucations and telemete<ing equipment,
protective devices and safety equipment.
2.7 "Medicine Bow Wind Project (MBWP)" means the wind-energy generating
facUity near the Town of Medicine Bow, Wyoming. all generation an<l opention
related assets of which are owned by Platte River.
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"Metered Energy" is the monthly energy output from the Unit measured at the
low voltage outlet of the Unit.
"Net Output" means the proportional wind-generated electrical energy
produced by the Unit delivered to MEAN, in megawatt-houtS, calculated as
shown in Exhibit 4, attached hereto, and made a part of this Agreement.
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2.10 .Point of Delivery" shall mean the 115 kV side of Western Area Power
Adn'liniStration's (Western's) transformer serving the MBW?, located within
Westem's Medicine Bow Substaoon, near the Town of Medicine Bow, Wyoming.
2.11 .Unit" means one wind rurbine generaTor, as defined in Exhibit 1, attached
hereto, and made a part of this Agreement.
3. AGREEMENT:
3.1 Platte River shall, at its sole discretion, decide whether to purchase and install
the Unit, onor before March 31, 1999. If Platte River decides not to f'l.lrchase and
insnill the Unit, this agreement shall be null and void. If Platte River deddes to
purchase and install the Unit, all terms and conditions of this agfeement shall be
in full force and effect.
MEAN shall purchase and receive from Platte lUver and Platte River shall
deliver and sell solely to MEAN at the Point of Delll/ery the Net. Output from the
Unit for the term of this Agreement.
Jt shall be MEAN's sole responsibility to make all the necessary arrangements for
the transmission of energy from the Point of Dehvery, mcluding scheduling,
accoummg. 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 shalJ be the sole responsibility of
MEAN. This includes any costs associaTed with transmission system
curtailments and costs for addll:lonal points of delivery required by MEAN
beyonel the Point of Delivery.
MEAN shall have the right to affix identifying signs to the Unit for purposes of
identifying thaT the Unit was built in pan to serve this Agreement. Details of
signage construction and location will be determined by mumal agreement of
the Parnes.
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4. TERM AND TERMINATION:
4.1 This Agfeement shall be in force and effect for twenty (20) years after the
Commercial Date. Thereafter, so long as Platte River chooses, at its sole
discretion, to continue operating the Unit, the Agreement shall be deemed to be
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extend..d by the Parties hereto in the abse[\~e of MEAN givmg written notice to
Platte RiV'er of its elecnon not to extend. Said notice shall be given on the
nineteenth anroversary of the Conunercial Date or one yeal" prior to the intended
termination date thereafter
If, for a reason other than Force Majeure. the Ut1it does not commence
Commer~ial Operation on or before October 31. 1999, the P~t!s sMll meet and
negotiate in good faith an appropnate amendment to this Agreement.
Platte River shalll.ltilize its reasonable best efforts to attain a llUnUnum level of
l'edonnance of the Urtit such that the wmd energy dehvered to the Poim of
Delivery. commencing on 1he first full day following Commercial Operation,
shall exceed 80% of the rated energy output at the actual wind speed during each
year of operation. Rated energy output shall be determined from the wind.
generation power curve provided by Ves!as fOr 1he Unit. Should the Unit fail to
adueve this minimum level of performance for any twelve consecJJ:tive months
durmg 1he term of this Agreenwnt fOr any reason other than Force Majeure.
Platte River shall have tlw right to prOVIde 1U\ equivalent amount of winet energy
to MEAN from other sources at the Energy Rate. If Platte River is utlable to
provide wind-generated energy from altemative sources wi1hin 120 days after
the Unit fails to meet the mini:mum l<'Vel of performance for any twelve
consecu.tive months. MEAN shall have the right to terminate this Agreement.
The period for substitution of wind-generated "nergy from alternative sources
outside of the MBW? shall be limited to 180 days, unless MEAN notifies Platte
River in wrinng of its iI\tent to ~ontinue to purchase such wind-gomerated
energy. The period for SJJ:bstitution of wind-generated eMrgy hom alternative
sources within the MBW? shall be limited to two years, unless MEAN notifies
Platte River in wrIting of its il1tent to continue to purchase SJJ:ch wind-generated
energy.
4.4 Breach of any representatiotl, wammty or obligation induded in this Agreement,
shall be deemrd a material default unde. this Agreement. Upon such defa1.llt,
the l1On.defatdting party shall have the right to terminate this Agreement sixty
(60) days after written notice of default purSU1U\t to Section 22 of this Agreement,
if such default has not been cured. Such wntten notice shall set forth, in
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teasonable detau, the nature of the default. The defaultixlg party shi\U have sixty
(60) days to Cure the default Nothing herein snan be construed to armt or
restrict elmer Party's right l.'O compel specific performatlCe, or damages, u
appropriate.
5.
DETERMCNATlQN Qf I;NERGY DELIVI;~ED:
5.1 Energy purchased ftom Platte River I:>y MEAN shall be the Net Output from the
Umt, as calculated uSing the formllla in Exhibit 4.
5.2 Net Outpllt shall be delivered to MEAN and purchased by MEAN, at the Energy
Rate, commencing with Commercial Operation of the Unit. This inclll.des the
limited amount of energy that may be produced dl11'ing the brief period benveen
initial, first-time operation arid Commercial Operation of the Unit. The Parties
intend that this I:>rtef peliod be less tMl1 seven (7) days, but agree tMt
unfavorable weather Or Force Majeme may extend this period.
5.3 Due l.'O the variability of the wind resource, Net Output from the Umt Cllt\l10t be
preciSely predicted on an hourly, daily, monthly, or annual basis; therefore,
Platte River will only be in defalllt if Platte Rivet fails to meet irs delivery
obligation as set form in Suhsecnon 4.3.
5.4 For capacity accreditation purposes, Net Output from the Unit is considered non-
firm and no capacity value is assigned to the energy delivered under this
Agreement.
6. BILLING AND FA YMENT:
6.1 Th~ ~nergy billing cr.arge for arlY Billing Period shall be the product of the Net
Output (in megawlItt-hours) Clelivered to MEAN, purs...ant l.'O Section 5, during
such Billing Period. times the Snergy Rate liS <:leflned in the attached Exhibit 3.
6.2 Beginning with the calendar xnonth following the month in which Commercial
Operation occurs, Plane River shall submit to MEAN by the 10<1> day of the
month an invoice, for the precedmg Bilhng Period. for Net OutpUt from the Urut
delivered to MEAN at the Point of Delivery. Such bills shall include the
beginning arid end dates of the Billing Period, the amount of wind energy
delivered to MEAN as determined from the metering equipment described in
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6.4
Section 7 he.ein using the ~akulation ,Mined in Exhibit 4 artached hereto. and
the total amount due to Platte River.
MEAN shall make payment to Platte River. either by cheek or by electronic
transfel' of such payment. Ol'\ Or before the l()t1> day of the month followmg receipt
of the invoice from Platte River. Payments are aeemed paid on the date they are
postmarked Or elecrronically rransferred. Absent proof of postmark, payments
shall be deemed paid as of the clate the check is received by Platte River.
Payments made after 30 days shall bl! subject to a prorared annual interest charge
at the Norwest Bal1k, or its successor's, prime rate plus two percenr applied to
late payments on a daily basis, on a 365 day year.
Information necessary to accomplish elecrronic transfer of payments due shall be
provided llt writing pursuant to Section 22.
In the event that any portion of a bill is m dispute, the undisputed amount shall
be paid. The Parties shall uSI! their best efforts to amicably and promptly resolve
the dispute. Upon determination of the correct billing amounr the proper
adjustment shall be paid or refunded promptly subject to a prorated annual
interest charge at the Norwest Bank, or its successor's, of prime rate plus two
percent on a dlllly bllsis (based on a 365 day year),
6.S
7. METERING:
7.1 Platte River shall install, own, operate and maintam, at its own expense, all
necessary meters. dedicated potential and current rransformers. and associated
equipment to be utilized for the measwement of energy for determining
MEAN's payments to Platte River pUl'Swmt to this Agreement. Metering
equif'ment will be installed at the low voltage outlet of the Urut and shall be used
ro measure the Metered Energy. The Metered Energy shall be used to calculate
Net Output by means of the formum defined in Exhihit 4, attached hereto.
7.2 A one 1me drawing depIcting the interconnectiOl'\ of th.. Unit to the Point of
Delivery and the placement of Platte River's metermg installation is attached
llereto, and made a part hereof, as Exhibu 5,
7.3 Metering shall be compatible with MY-90 meter inter,ogation software and the
Parties shall have unlimited rights to mterrogaTe the billing meter.
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EXECUTION DRAfT. 03/03/99
7.5
Meters may be tested at any reasonable time by Platte River upon request with
30 days nolice by either Pllfty, at the requesting Party's sole expense. MEAN
shall be allowed to have a representative present to witness s\lcn tests. Meterillg
equipment found to be inaccurate by more than 2% shaU p., replllred, adjusted,
or replaced by Platte River, at Platte River's expense. Any correction in the
billing resulting from such repairs, adjustments Or replacements shaU be made ill
the accounting rendered for the next Billing Period p\lrsuant to Section 6 herein;
and such coueenon, when made, shall constitute full resolution of any claim
between the Parties arising out of such inaccuracy of metering equipment The
period for wltich any such correction will be applied shaU be limitecl to 60 days.
The Parties ;;hall cooperate in providing such information and reports relating to
this Agreement the Unit, and the Point of Delivery, as may be reasonably
required !rom time to time.
OPERATION AND MAINTENANCE:
8.1 Platte Rivet will be responsible for operation and maintenance of the Unit at Its
sole expense.
8.2 To aid MEAN in analyzing, forecasting and scheduling wind. generated energy
production 011 a monthly and seasonal basis, Platte River will provide hourly
historical data from the MBWP as may be readily available to Platte River.
Hourly data collected from the billing meter by Platte River will also be available
to assist MEAN in schedulirlg wind-generated energy. If more detailed data
from the site is req\lired by MEAN, Platte River may provide such da~,
provided that MEAN compensates Platte River for actual, direct, or out of pockat
costs associatecl with gathering such data.
8,3 Employees of MEAN will have the right to visit the MBWP site and inspect the
Unit with reasonable notice given to Platte River.
INTERCONNECTION:
9.1 Except as otherwlse specifically provided for herein, Platte River shall deSIgn.
operate, and maitltain, at its own expense, all Interconnection Facilities
associated with the Unit.
7
Mar-03-99 12:49pm From-PLATTE RIVER POWER AUTHORITY
~.
~.
('
9102195144
T-IS5 P.09/19 F-115
EXECUTION DRAfT < 03/03/99
9.2
Platte River shall provide MEAN With electrical pllll1s and speClficarions for
Interconnection Facilities apon request.
10. EXHIBITS MADE PART OF THIS AGREEMENT: Exhil:>!rs 1 (Unit description),
Exhibit;: (Unit location), Exhibit 3 (Energy Rate definition), Exhibit 4 (Net Output
definition) and Exhibit 5 (Interconnection and Metering description) are attached hereto,
and made a patt hereof. Lnasmuch as the equipment and information depicted in
Exhibits 1, 2 lll1d 4 may change due to Platte River' 8 election of the Unit to be instlllled ro
serve this Agreement, the Parties shall prepareancl e"ecute revised exhibits when such
changes are maCle.. Inasmuch as the equipment depicted in Exhibit 5 may change from
time to time, the Parties shall prepare and execute a revised exhibit when such changes
are made.
11.
LIABIUT\': Platte River shall save, defer)Q, and hold harmless MEAN, its officers,
employees, an4 agents from any and all claims lor injury to person Or persons Or
c1amage to property occurring at the site of the Unit; provided, however, that not:lting
herein contained shall be construed as relieving or releasmg any Party from lutbility for
injury or damage, wherever occurring, resulting from its own negligence Or the
negligence of any of its officers, servants, employees, or agenrs; md in me event of
concurrenr negligence by the Parties, t:here shall be contribution; and provided further,
that each of the Parties hereto shall be solely responsible for injury or damag", wherever
occurnng, due solei)' to any defect in equipment installed, fumished, or maintained by
such Party. Each Party is solely responsible for the riS).; of loss, or damage to. lts
equipment, unless the loss or damage rl!Sl.llts tram the negligence or fault of the other
f'any. LIMITATION OF WARRANTIES: NOTWITHSTANPING ANY OTHER
PROVISION OF THIS AGREEMENT, NEITHER PARTY SHALL BE RESpONSIBLE
FOR PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUr
NOT LIMITED TO, LOST PROFITS
12. INSuRANCE: Platte River will obtain comprehensive bodily injury and property
damage liability insurance for me MBW? Said insurance will be in the amount of at
8
Mar-Ol-SS 11:4Spm From-PLATTE RIVER PewER AUTHORiTY
9701295144
T-165 P.l0/19 F-II!
~
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EXECUTION DRAFT - 03/03/99.
13.
least $l.OOC,OOO and will remain in force as long as this Agreement is in effect. l..'pon
request from MEAN. Platte River will provide a certificate of insmance to MEAN.
TITLE: Delivery of energy from Platte River to MEAN shall be <teemed completed at
!he Point of Delivery, and title to such energy sluill pass to MEAN upon delivery.
14.
W A~ER: Failure to enforce or insist upon compliance with any of the terms or
conditions of this Agr~ment shall no: constitutt' a waiver or relinquishmem of any such
terms Dr conditions, but !he terms or conditlOns of this Agreement shall be and remain
at all times in full force and effect.
15.
CHOICE OF LAW: This Agreement shall be cotlStrued and interpreted in accordance
with the laws of the State of Colorado.
16.
FOB.CE MAJEURE:
16.1 No Party shall be considered to be In default of any of its obligatiopS under this
Agreement, except 1:0 make payments as specified herein, whom a failure of
pedormance shaH be due to force Majeute. force Majeure inclu.des. but is not
restricted to: fallure of or threat oE failure oE facilities due to latent defect. flood.
earthquake. storm (includmg wind storm). fire. lightning. epidemiC. war, riOt,
clV!l distllrbance Or di.sobedienct', labor dispute, labor or material shortage.
sabotage, rt'Straint by court order Dr public authority, anJ action or non-action by
Or faiIl.lre to obtain tht' necessary authorizations or approvals from any
govt'mmental agency Or authority. which by e"erdse of du.. <h!igence such Party
could not reasonal:>!y have been expected to avoi<t and which by exercise of due
diligence it shall be unable to overcome.
16.2 Nothing contained herein shall be construed to require a Party to sertle any strike
or labor dispute in which it is involved.
16.3 A Party rendered unable 10 fulfill any obligation 1U1der this Agreement by reason
of FOfCe Majeure shal! give prompt written notice of such iact to the other Party
lUld shall exercise due diligence to remove such inaPiIity with all reasonable
dispatch.
9
Mar-OS-91 12:50pm From-PLATTE RIVER POWER AUTHORITY
9702295244
T-165 P.l1/11 HZ5
~
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EXECUTION PRAFT - 03/03/99
16.4 The rirne for perfOrmance of any obligation requued by this Agreemem which
has been delayed by an event of Force Majeure shall be extendecl by the period of
Force Majeure: provided, howewr, the party experiencing the clelay shall notify
the other party of the cause of the dt!'lay an4 the anticipated period of the clelay
as soon as reasonably posslble, but within ten (10) days after the commencement
of the event of Force Majeure.
17.
ENVIRONMENTAL B]?NEFITS: Any environmemal benefits such as, but not limited
to, air quality emission reduction credits which may now or in the future become
available or that may become associated with the Unit as a result of local, state or federal
laws or regulations shall accrue solely to Platte River. One suen potential benefit would
be payments from the federal government for" Renewable Energy Production InCentive"
(REPi) credits. Other potential benefits nught include "carbon credits" or other
subsidies for production from renewable resources. Such benefits may also include
credits or minimum energy generation requirements associated with a renewables
portfolio standard. If Plane River shall ever offer for sale, lease, or transfer any of such
environmental benefits to any other person Or entity, Platte River shall first make such
offer to MEAN on substantially sunilar terms and conditions as those offered to such
otner person or entity, but at a price cliscount of 10%.
18. SUCCESSORS AND ASSIGNS:
18,1 This AgTeement shall be binding upon and inure to the bt!'nefit of the successors
and assigns of the Parties nerelo.
18.2 Each Party shall have the right to assig1l all Or part of its rights aml interests
herein, without prior consent of the other l'arty, to any entity at least a majority
of which is owned by such Party.
18.3 Except as provided in SecOan 18.2 above, neither Party shall assign its inlerest in
the Agreement in whole or in part without the prior wrinen consent of the other
Party. Such consent shall not be unreasonably withheld.
18.4 Any ttansachons allowed under this s..ction shall not viOlate the terms of any
license or permit required for performance under this Agreement.
10
Mar-OI-99 12:51pm F'om-PLATTE RIVER POWER AUTHORITY
9102295244
T-165 P.12/19 F-225
f"..
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EXECUTION DRAfT. 03/03/99
19.
AffROV AlS: This Agreement may be subje~t to the regulatory powers of 'I st'lte or
federal '1gency h'lving iuriscli~tion. Each Party hereto shall use its beSt efforts and shall
cooperate with the other P<U"ry to obtain from all such state ancl federal authOrities as
may have jurisdiction, all authorizanons, approvals, and orders to the extem requirecl by
law in order to enable it to v'llidly enter into this Agreemem ~nd to perform 'Ill its
obligations herein.
20. SEVERABILITY; In the event that any of the terms, covenants or conditions of ttus
Agreement, its Exhibits, or the appllc'ltion of any su~h term, coven'ln!. or condition shall
be held inv'llid by any cOurt or administr'ltive body having jurisdicnon, It is the
intention of the Parties that in lieu of each such term, covenant or condition that is
invalid, there be added as part of this Agreement. a term, covenant, or condition as
similar in terms as possible to such invaiid term, covenant or condition. The Agreement
shall not be affected thereby and shall remain in full force and effect.
21,
INTEGRATION; The terms and provisions contained in this Agreement between
MEAN and Platte River corIStitute the entire agreement between MEAN and Platte
River, and supersede all prevlous communications and representations, either oral or
wntten, bet\<.'een MEAN and plalle RJver with respect to the subject matter of this
Agreement.
2Z. NOTICES: Unless provided otherwise by this Agreement, any notice, request, demand,
statement. payment or routine communication aUowecl Or permitted by this Agreement,
or any notice or communicatiOn whi~h either Parry may desire to give to the other, shall
be in writing and shall be considered as delivered when deposited in the United States
mail adclressed to the other Party at its address indicated below or at such other address
as either Party may designate for Itself in a notice to the other 1'uty.
To MEAN: Municipal Energy Agency of Nebr~ska
Attention; ExecutlV'e Director
PO. Box 9512~
Lincoln, NE 685()9
11
Mar-Ol-II 12:51po From-PLATTE RiVER POWER AUTHORITY
9102215244
T-IE5 P.13/11 F-2IS
EXECUTION DRAFT. 03/03/99
1"\
To Pli\tte River,
Pl~tte River Power Aumority
AttentIOn; General Manager
2000 E. Horsetooth Road
FOrt Collins, Colorado 80525-5721
The designation of the perscm to be notified or the address of said person may be changed III
any time by slmilar notice.
23. ARBITRATION; If a dispute between the Parties should arise under this Agreement,
either Party may call for submission of the dispute to non-binding arbitration. The
arbitranon shall be governed by the rules and practu:e of the American Arbitration
AssOC11l1l0n (or me rules and practice of a simil.r organization if the American
Arbitration Association should nol then exist), wim the proviso that me arbitration
panel shall, in aU events, consist of three (3) arbitrators, one chosen by each of the Parties
and me third chosen by those two arbitrators. If such rules and practices conflict with
the then existlng pro'liisions of Colorado law applicable to arbitration proceedings, such
law shall govern
.~.
24.
AMENDMENT: This Agreement may be amended, changed, modlfied or altered,
provided that such amendment. change, modification Of alteration shall 'pe in writing
and signed by both Parties hereto,
IN WITNESS WHEREOF. the Parties hereto have caused this Agreement to be el<ecuted in their
respective names as of the date and year first above written
PlATIE RIVER POWER AUTHORITY
By:
Lloyd Greiner, lntenm General Manager
AlteSI:
MUNICPAL ENERGY AGENCY OF NEBRASKA
By'
Executive Director
~.
AtteSI:
12
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Mar-O,-99 12:52pm From-PLATTE RIVER POWER AUTHORITY
9702295244
T-I!5 P.14/19 HZ5
Exhibit 1
Exhibit 2
ExlUbit :>
J1xlUbit 4
Exhibit 5
EXECUTION DRAFT. 03/03199
, LIST Of EXHIBITS
Description of the Unil a.soeillted with this Agreement
VIeirot)' map showing the Medicine Bow Wind Project sIte and th.. general
loeatton of the Urnl.
Energy Rate fOl. the 20-year term of the Contraer.
Definition of N el au lpu t.
Interconnection and Meterirlg >;;hematic diagram.
13
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Mar-C3-99 12:53pm From-PLATTE RIVER POWER AUTHORITY
T-IS5 P.15/19 F-225
9102295244
EXECUTION DRAfT - 03/03/99
EXHIBIT 1
Description of the Unit
The Unit asso,iated With this Agreemem shall be one Vo" wine! turbine gene<alOr, with
lnllximum nt'T fated output of 1,650 ~,W, and aU related equipment, to be manufacmred,
installed and wiUranted by Vestas American Wine! Technology, Inc. (Vestas), along with
associated InTerconnection FacUines, mstalled at Plane River's MBW? site,
14
Mar-O,-II 12:5,pm From-PLATTE RIVER POWER AUTHORITY
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1102215244
T-le5 P.l1/11 F-225
EXECUTION DRAFT - 03/03/99
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EXHIBIT 3
Ene~gy Rate
The initial fate is $44/MINh. The esc..la~on rale is three percenl (3%) per year, and will apply
for five years, beginning at the start of !he second year after the Commercial Date and ending at
the end of the sixth year after the Commercial Date. Specific rates for the term of tNs
Agreement are provided in the following table. The irutial monthly period begins wi!h the
Commercial Date.
Table of Energy Rates
Period
Rate
~.
(Monthsl I 1Ih\
1-'12 44.0 I
13-24 45.3
25-48 i 46.7
49.60 ! 48.1
61-72 49.5
73-84 , 51.0
85-96 51.0
97-108 51.0
109-120 51,0
121-132 51,0
133-144 510
145-156 51.0
157.168 I 51.0
169-180 51.0
181-192 51.0
193.204 51.0
205-216 i 51.0
217-228 I 51.0
229.240 ! 51,0
If the Unit is still operating after the 240m month since CommercIal Operation, the Energy Rate
shall r"mam fifty-one dollars per megawatt-hour ($!iI/MINh).
(',.
16
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Mar-OS-99 IZ:54pm From-PLATTE RIVER POWER AUTHORITY
9i02295244
T-115 P 18/19 F-m
f:XECUTlON DRAFT - 03/03/99
EXHIBIT .
Calculation of Net Output
POr this Agreement. Net Outpur shall be forty percent (40%) of the wind-generated electrilO;u
energy produc:ed by the Unit, dehverecl to MEAN, in megawatt-hours, as caJcuhlted on a
monthly bllSlS using the following formula:
Net Output = (O.40) x (Metered Energy) x (1 ~ Loss Factor)
In this formula, "Met...ed li",,<gy" i. the mon!hly energy output iTom the Unit, "",,".ureel at !he
4,160 Volt outlet of the Unit, and "Loss Factor" is 0.03 (3%), to account for losses between the
outlet of the Unit llflJ the Point of Pelivery.
The average purchase of Net Output by MEAN shall nOt exceed twO thousand, two hundreJ
(2,200) megawatt-hours per year, calculated on a ten (10) year rtmning average.
17
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9102215244
T-1S5 P.ll/11 F-225
From-PLATTE RIVER POWER AUTHORITY
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