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RESOLUTION # 5t+
(Series of 2006)
A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN,
COLORADO, AND HOLY CROSS ELECTRIC ASSOCIATION, INC. (DBA AS HOLY
CROSS ENERGY), SETTING FORTH THE TERMS AND CONDITIONS REGARDING
WHEELING POWER AND ENERGY OVER HOLY CROSS ENERGY'S ELECTRIC
DISTRIBUTION VOLTAGE FACILITIES TO CUSTOMERS SITUATED ON PROPERTIES
OWNED OR CONTROLLED BY THE CITY OF ASPEN LISTED ON "EXHIBITT A" OF
CITY OF ASPEN ORDINANCE 44, SERIES 2003, AUTHORIZING THE CITY MANAGER
TO EXECUTE SAID CONTRACT
WHEREAS, there has been submitted to the City Council a contract between the City of
Aspen, Colorado, and Holy Cross Energy, a copy of which contract is annexed hereto and made
a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO:
Section 1
That the City Council of the City of Aspen hereby approves that contract between the
City of Aspen, Colorado, and Holy Cross Energy, regarding wheeling power and energy over
Holy Cross Energy's electric distribution voltage facilities to customers situated on properties
owned or controlled by the City of Aspen and listed on Exhibit A of City of Aspen Ordinance
44, Series 2003, 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 contract on behalf of the City of
Aspen.
Dated:~'( ~
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I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a
true and accurate copy of that resolution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held ~~ ~ /6') 2tJ{)t, .
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DISTRIBUTION WHEELING SERVICE AGREEMENT
BETWEEN
THE CITY OF ASPEN, COLORADO,
AND
HOLY CROSS ENERGY
This Agreement is made and entered into as of the 13th day of July, 2006, by
and among Holy Cross Electric Association, Inc. (DBA Holy Cross Energy) organized and
existing under the laws of the State of Colorado (hereinafter "Holy Cross"), and the City
of Aspen, Colorado, a municipality organized and existing under the laws of the State
of Colorado (hereinafter "Aspen"). Reference may be made to either Holy Cross or
Aspen as a "Party," or collectively as the "Parties."
RECITALS
WHEREAS, Holy Cross is engaged in transmitting and distributing power and
energy to its consumers in Pitkin County, Colorado, among others, and owns and
operates electric facilities outside, within, and adjacent to Aspen.
WHEREAS, Aspen owns and operates a municipal electric system and is
interconnected with electric facilities belonging to Holy Cross and others.
WHEREAS, the Aspen municipal electric system is an enterprise as that term is
used in Article X, Section 20 of the Colorado Constitution.
WHEREAS, Aspen receives power and energy from the Municipal Energy Agency
of Nebraska, the Western Area Power Administration, and from Aspen's Ruedi and
Maroon Creek hydroelectric facilities.
WHEREAS, Aspen has requested, and Holy Cross is willing, to wheel power and
energy over Holy Cross's electric distribution voltage facilities to those customers
situated on properties owned or controlled by the City of Aspen listed on "Exhibit A" of
City of Aspen Ordinance 44(Series of 2003) known as the Holy Cross Franchise
Ordinance, only pursuant to the provisions of Article 3, Section 3.3 of such Franchise
Ordinance.
NOW, THEREFORE, IT IS AGREED by and between the Parties as follows:
1 . Term of Agreement
1.01 This Agreement shall become effective on July 13, 2006, and, except as
specifically provided herein, shall continue in full force and effect through
December 31, 2006, and thereafter from year-to-year unless terminated
by at least one (1) years prior written notice given by either Party to the
other Party, which notice can be given at any time on or after January 1,
2007; provided, however, that this Agreement shall terminate on any date
upon which the Holy Cross Franchise Ordinance shall have expired or
terminated.
1.02 It is agreed between the Parties that Aspen shall incur an obligation
hereunder at such time as it commences use of the Holy Cross electrical
facilities. The extent of the monetary obligation of Aspen shall be
calculated based upon the terms and conditions stated herein. Such
obligation shall be promptly paid according to the terms and conditions
of this Agreement as an expense of operating Aspen's municipal electric
system from gross revenues received by Aspen from its electric
customers. The Parties acknowledge that in utilizing the Holy Cross
facilities as designated in this Agreement, Aspen is operating as an
enterprise.
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1.03 If any benefit, or thing of value, bestowed upon Holy Cross under the
terms of this Agreement, is legally determined or decided to be null and
void or is diminished or reduced in value, in any way, and by the most
liberal construction or interpretation is deemed to be substantial or
material to this Agreement, Holy Cross shall have the right to terminate
this Agreement on sixty (60) days written notice to Aspen.
2. Terms and Conditions of Service
2.01 Holy Cross agrees to receive at the designated Point(s) of Receipt and
deliver at the designated POint(s) of Delivery such power and energy
procured by Aspen for service to the "Exhibit A" loads under this
Agreement.
2.02 Upon agreement of each Point of Delivery by the Parties, separate
Schedules for each Point of Delivery shall be prepared and signed by the
Parties and shall attach to, and become a part of, this Agreement. Each
such Schedule shall describe or show the Point of Receipt, Point of
Delivery, delivery voltage, metering, loss factors, facilities and equipment
to be installed by each Party, and special conditions (if any) applicable to
such Delivery Point.
2.03 Each Schedule prepared pursuant to Section 2.02 shall be identified using
the letter A; the first Delivery Point Schedule being A-I and the second
being A-2, and so forth, hereafter collectively referred to as Schedule A.
Such Schedules may be amended from time to time by mutual agreement
of the Parties, and subject to the availability and operational limitations of
the Holy Cross electric facilites. At no point shall Holy Cross take title to
Aspen's power and energy.
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2.04 Holy Cross shall exercise reasonable diligence and care to maintain
continuity of service and avoid interruptions in the delivery of power and
energy under this Agreement, and to restore service promptly after an
interruption of service due to power system interruptions, overload of
facilities, or other adverse conditions on the Holy Cross system.
2.0S Holy Cross shall exercise no adverse distinction between service under
this Agreement and similar service to Holy Cross customers.
3. Payment
3.01 Payment by Aspen for the use of Holy Cross's facilities for all distribution
wheeling service provided under this Agreement shall be made monthly
based on calendar month delivery. The applicable wheeling rate will be
listed in Schedule B.
3.02 Holy Cross shall adjust rates in Schedule B from time to time based on
any change, positive or negative, in the base rates attributable to the
distribution of electricity to Holy Cross's commercial class customers.
For example: If Holy Cross's commercial class customer's base rates
attributable to the distribution of electricity increase by 2%, all charges in
Schedule B would be increased proportionally by 2%.
3.03 Aspen, upon reasonable notice to Holy Cross, shall have the right to
review the supporting information and calculations performed pursuant
to Section 3.02.
4. Billing
4.01 Monthly payments shall be due and payable within twenty-one (21)
calendar days from the date of mailing of an invoice to Aspen as
determined by the United States mail postmark. Holy Cross will issue a
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bill as soon as possible after the end of the month in which service has
been rendered. Any late payment beyond the twenty-one (21) day period
shall accrue interest at a rate of one percent (1 %) per month computed
from the date of mailing.
4.02 Holy Cross may, at any time after a bill is past due and after having
given sixty (60) days advance notice in writing, discontinue service
until all past due bills, with interest and late payment charges
thereon, if any, are paid. Remittances received by mail after the
due date will be accepted by Holy Cross without penalty or interest
provided the same are mailed on or before the due date as
evidenced by the postmark or other reasonable factors if such
postmark is unavailable or unreadable. In the event of a billing
dispute, Aspen must pay the billed amount in full and separately
note the amount paid under protest if known at the time of
payment. Discontinuance of service as herein provided shall
not relieve Aspen of liability for payment for services actually
rendered prior thereto.
4.03 Holy Cross may, at its sole discretion, terminate this Agreement if (i) Holy
Cross has discontinued service to Aspen pursuant to Section 4.02 and
Aspen has not remedied such failure to pay all outstanding charges,
together with interest and late payment charges due, within thirty (30)
calendar days of receiving notice of discontinuation of service, or (iil
Aspen fails to pay in a timely fashion any four (4) invoices in a twelve (12)
month period. Such termination will take effect on the last day of the
month in which the termination event occurs. Termination pursuant to
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this Section 4.03 shall not limit in any respect Holy Cross's rights to any
and all other remedies which shall be available to it, whether at law or in
equity.
5. Power Factor
5.01 Aspen shall be responsible for maintaining, or causing to be maintained,
a power factor at the Point of Delivery of between ninety-five percent
(95%) leading and ninety-five percent (95%) lagging. Holy Cross, using
sound engineering judgment, may determine that Aspen has failed to
comply with the power factor requirements hereof for what it considers
an unreasonable period oftime. In such event Holy Cross may give
written notice to Aspen to install necessary equipment to maintain such a
power factor, and Aspen shall have six (6) months thereafter to complete
such installation. In the event that Aspen fails to complete such
installation, Holy Cross may take all steps, including suspension of
deliveries of Aspen's power and energy to particular Point(s) of Delivery,
to maintain the reliability of its system.
6. Metering
6.01 Aspen will pay for and Holy Cross will own all metering and associated
equipment necessary to bill and account to and for the wholesale power
and transmission providers of Holy Cross and Aspen.
6.02 Aspen shall provide and maintain, at no cost to Holy Cross, conventional
voice grade dial-up telephone circuits to the metering equipment at each
Point of Delivery specified in Schedule A. Telephone circuits may be
provided directly from the public switched network, or from a dedicated
extension of Aspens private exchange (PBX if applicable). The telephone
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circuit shall provide dial tone, touch tone signaling, ring voltage, and if a
PBX extension, twenty four (24) hour direct inward dialing (DID) access.
Aspen shall inform Holy Cross of the telephone circuit number, and any
changes thereto. In the event of a malfunction to the above mentioned
circuits that prevents Holy Cross from communicating with the metering
equipment, Holy Cross shall promptly investigate and determine the
cause of the malfunction, and notify Aspen if the malfunction is a result
of failure of the telephone circuit. Upon such notice, Aspen shall
promptly correct such malfunction, and if not corrected within seven (7)
days, Aspen shall reimburse Holy Cross for all expenses incurred as a
result of obtaining the metering information by other means. Further, if
applicable, Aspen shall pay for and provide devices known a Mini-PBX or
smart switches to allow multiple metering devices be accessed though
one phone line.
6.03 Holy Cross shall provide Aspen's designated representatives with all
metering information for billing and energy accounting purposes.
6.04 Upon mutual agreement, Aspen may install on Holy Cross's facilities
equipment for any real time monitoring of Aspen's loads associated with
this Agreement. Aspen shall pay all costs associated with installation,
maintenance and removal of such equipment. Such equipment shall not
unreasonably interfere with Holy Cross's other equipment and facilities.
6.05 Should any meter fail to register the power and energy delivered during a
period, such deliveries shall be estimated for such period by the
Operating Representatives (as such term is defined below) of the Parties
using the best information available.
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6.06 If any inspections and/or tests disclose an error exceeding two percent
(2%), a correction based upon the inaccuracy found shall be made in the
records of electric service furnished for the two (2) calendar months prior
to the month in which such error was discovered; provided, however, that
no correction shall be made for a longer period than such inaccuracy may
be determined by the Operating Representatives of the Parties hereto
have actually existed.
7. Permits
7.01 Each Party grants to the other Party, upon reasonable notice and
reasonable terms, the right to install, test, maintain, replace, and repair
equipment or facilities, if any, placed on the property of the other Party
under the provisions of this Agreement during the term of this
Agreement, and also grants to the other Party the right to remove such
equipment and facilities at the expiration of this Agreement. All such
equipment and facilities shall be removed by the Party who owns such,
promptly, at the expiration or termination of this Agreement.
7.02 Each Party will coordinate with the other Party, upon reasonable notice
and reasonable terms, access to said equipment and facilities.
8. Uncontrollable Forces
8.01 No Party shall be considered to be in default of performance of any
obligation under this Agreement, other than its obligation to make
payments for services already received, if failure of performance is due to
uncontrollable forces. "Uncontrollable Forces" shall include any cause
beyond the control of the Party affected, including, but not limited to acts
of God, failure of facilities, flood, earthquakes, storm, fire, lightning,
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epidemic, war, riot, civil disturbance, sabotage, or restraint by court order
or public authority, which, by exercise of due foresight, such Party could
not reasonably have been expected to avoid, and which, by exercise of
due diligence, it is unable to overcome.
8.02 In the event that either Party claims that Uncontrollable Forces have
impaired performance under this Agreement, the Party claiming such
Uncontrollable Forces shall promptly give notice to the other Party
describing the particulars of the occurrence. The suspension of
performance due to Uncontrollable Forces shall be of no greater scope
and of no longer duration than is required by the Uncontrollable Forces
event. When the nonperforming Party is able to resume performance, the
Party shall give the other Party notice to that effect.
8.03 Should Uncontrollable Forces substantially impede performance under
this Agreement for a period in excess of twelve (12) months, either Party
hereto shall be entitled to terminate this Agreement.
9. Liabilities and Indemnification
9.01 Each Party, to the extent permitted by law, will be responsible for the
facilities owned and operated by that Party and shall defend, indemnify,
and hold harmless the other Party, including its officers, directors,
employees, and agents, from any claim arising from occurrences at or on
such facilities except when the negligence of the other Party or its agents
was a proximate cause of the injury. Each Party shall be directly liable to
the other Party, and to its officers, directors, employees, and agents for
any claims, losses, damages, or other costs and expenses (including
reasonable attorney's fees and costs) arising in connection with or as a
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result of the negligence of such Party in the performance of this
Agreement. Nothing herein waives any of the provision of the Colorado
Governmental Immunity Act, eR.S. !i 24-10-101, et sea., as these
provisions apply to Aspen.
10. Mutual Assistance
10.01 During the term of this Agreement the Parties will cooperate in the
operations of their respective facilities which are the subject of this
Agreement and will to the extent possible coordinate any necessary
interruption in service in a manner which causes the minimum of
disruption to the customers of both Parties. Notwithstanding the
foregoing, Holy Cross reserves the right to interrupt service to Aspen
when, in Holy Cross's sole judgment, such interruptions: (a) will prevent
or alleviate an emergency threatening to disrupt the operation of Holy
Cross's system, or (b) will lessen or remove possible danger to life or
property, or (c) will aid in the restoration of service; provided, however,
that any interruptions of service pursuant to this Section 10.01 shall be
implemented in a manner consistent with Section 2.05.
11 . Damages
11.01 In any claim or cause of action arising under this Agreement, the Parties
shall not be liable for any consequential, special or non-direct damages,
including but not limited to loss of use of equipment, extra expenses due
to the use of temporary or replacement equipment, loss of electronic data
or programs, loss of business revenue, costs of capital, or any costs not
part of necessary repair to or reasonable replacement of electric
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equipment whether the claim or cause of action is based upon contract,
tort or any other theory of recovery.
12. Waivers
12.01 Any waiver by a Party of its rights with respect to a default under this
Agreement, or with respect to any other matter arising in connection with
this Agreement, shall not be deemed to be a waiver with respect to any
subsequent default or matter. No delay, short of the statutory period of
limitations, in asserting or enforcing any right hereunder shall be deemed
a waiver of such right.
13. Successors and Assigns
13.01 No Party shall assign its rights or duties hereunder (except as a part of a
merger, reorganization or in connection with the sale or transfer of all or
substantially all of its assets), without the prior approval of the other
Party, which approval shall not unreasonably be withheld. This
Agreement shall apply and be binding upon successors and assigns of
each of the Parties.
1 4. Notices
14.01 Any notice, request, demand, statement or billing under this Agreement
shall be in writing and shall be deemed to have been duly delivered when
sent by regular mail or delivery in person to the following addressee or
such other addressee as may be provided by a Party.
For Holy Cross:
CEO
P.O. Box 2150
Glenwood Springs, Colorado 81602
For Aspen:
City Manager
130 South Galena Street
Aspen, Colorado 81611
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15. Designation of Operating Representatives
15.01 One Operating Representative for each the Parties shall be designated by
written notice upon execution of this Agreement and can be modified
from time to time upon written notice by each Party. Unless otherwise
agreed by both parties, the Operating Representatives shall meet at least
once per year to discuss this Agreement and the provision of distribution
wheeling service by Holy Cross to Aspen.
16. Modification of Agreement
16.01 Except as set out in Section 3.02, this Agreement may be modified,
amended, or altered only with the written agreement of the Parties. It
shall not set a precedent of any name, nature, kind or consequence in
regard to any future agreement between the Parties.
17. Attorneys Fees
17.01 In the event any Party to this Agreement shall find it necessary to
commence a legal action or proceeding, either judicial or administrative
in nature, to enforce the terms and conditions of this Agreement, or
obtain a remedy related to such Party's rights hereunder, the prevailing
Party shall be entitled to its reasonable attorney fees, incurred prior to
the commencement of such proceedings, and during such proceedings,
and the costs and expenses incurred in bringing and maintaining such
action or proceeding.
18. Regulatory and Board Approvals
18.01 This Agreement and the rights and obligations of the Parties hereunder
shall be subject to (I) any regulatory body having authority and to valid
laws, orders, rules and regulations of and authorizations or approvals by
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regulatory bodies having jurisdiction over the provisions hereof, and (ii)
any requisite approval of this Agreement by the Board of Directors of
Holy Cross or the governing authorities of Aspen.
19. Governing Law
19.01 This Agreement shall be Governed by and construed in accordance with
the law of the State of Colorado and all claims, counterclaims, disputes,
and other matters in question that are not resolved, will be decided in a
court of competent jurisdiction within the State of Colorado, which shall
have exclusive jurisdiction and venue over all matters in question.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their respective authorized officers or agents.
CITY OF ASPEN, COLORADO
Attest:
By:
By: J?#-L tii /?~
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Date:~ /o,2t::2?h
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HOLY CROSS ENERGY
Attest:
By:
By:
Date:
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Burlingame Meter Number 1
Point of Receipt:
Point of Delivery:
Facilities Involved:
Loss Factor:
Delivery Voltage:
Metering:
Attest:
~.~ ;i&-
Attest:
By:
SCHEDULE A-l
At the Output of Holy Cross's Integrated
Transmission System
Burlingame Meter # 1 located near the
intersection of Harmony and Forge
The Aspen Area Holy Cross Distribution Facilities
Not applicable for this delivery point
25 kV
Ownership - Holy Cross
CITY OF ASPEN, COLORADO
By: ~ Ir/t.-J
Date: ~ /..3 ~6
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HOLY CROSS ENERGY
By:
Date:
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SCHEDULE B
Wheeling Charges for Service under this Agreement
Effective July 13,2006
Customer Charge = $26 per month per meter
Wheeling Delivery Charge = $0.0085 per kWh delivered per calendar month for
each delivery point in Schedule A
Note: This Schedule will be updated from time to time per section 3.02.
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