07-10-2018 Holy Cross Energy Power Purchase AgreementPOWER PURCHASE AGREEMENT BETWEEN
TOWN OF AVON, A COLORADO HOME RULE
MUNICIPALITY, AND
HOLY CROSS ENERGY
HOLY CROSS ELECTRIC ASSOCIATION, INC., d/b/a HOLY CROSS ENERGY ("HCE"), a
Colorado cooperative with its principal place of business in Glenwood Springs, Colorado and
TOWN OF AVON, A COLORADO HOME RULE MUNICIPALITY ("Seller"), a Colorado
nonprofit corporation, hereby enter into this Power Purchase Agreement ("Agreement"). Seller
and HCE are sometimes referred to in this Agreement jointly as "Parties" or individually as
"Party." In consideration of the mutual promises and obligations stated in this Agreement and its
appendices, the Parties agree as follows:
1. DOCUMENTS INCLUDED; DEFINED TERMS
1.1. This Agreement includes the following appendices, which are specifically incorporated
herein and made a part of this Agreement.
Appendix A — Definitions
Appendix B — Facility Description, Contract Price, Seller Contact Information
Appendix C — Initial Energy Delivery Date Confirmation Letter
2. SELLER'S GENERATING FACILITY, PURCHASE PRICES AND PAYMENT
2.1. Facility. This Agreement governs HCE's purchase of the Product from the electrical
generating facility (hereinafter referred to as the "Facility") as described in Appendix B.
2.2. Permission to operate. This Agreement does not provide Seller authorization to
interconnect the Facility or inject power into HCE's system. Seller acknowledges that
the Generator Interconnection Agreement is a separate contract and the Generator
Interconnection Agreement does not modify the Parties' rights and obligations under this
PPA.
2.3. Transaction.
2.3.1. During the Delivery Term of this Agreement, Seller shall sell and deliver, or
cause to be delivered, and HCE shall purchase and receive, or cause to be received,
the Product at the Delivery Point subject to the terms and conditions of this
Agreement.
2.3.2. HCE shall be required to purchase solely Renewable Energy (as defined in C.R.S.
§ 40-2-124). In no event shall Seller have the right to procure the energy or capacity
from a source or sources other than the Facility for sale or delivery to HCE under
this Agreement. HCE shall have no obligation to receive or purchase energy or
capacity from Seller prior to the Initial Energy Delivery Date or after the end of the
Delivery Term.
2.3.3. Unless HCE shall otherwise agree, Seller shall purchase from HCE all energy
required to serve the Seller's on-site electrical requirements, exclusive of Station
Use, pursuant to HCE's applicable tariff. Unless otherwise agreed by HCE, HCE
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shall be entitled to all energy and associated capacity from the Facility, excluding
Seller's Station Use as set forth above, including any ancillary services.
2.4. Delivery Term. Seller shall deliver the Product from the Facility to HCE for 20 Contract
Years (the "Delivery Term"), commencing on the first day of the calendar month
following the Initial Energy Delivery, and continuing until 11:59 pm on the last day of
the calendar month during which occurs the 201h anniversary of the Initial Energy
Delivery Date or until any earlier date on which this Agreement is terminated in
accordance with its terms.
2.5. Contract Price. HCE shall pay Seller for each kilowatt-hour ("kWh") of the Product
delivered to HCE at the Delivery Point during the Delivery Term pursuant to the terms
of this Agreement at a rate as calculated per the terms of this Agreement as described in
Appendix B. HCE's payments under this section shall constitute full consideration for
the purchase of the Product.
2.6. Billing. HCE shall pay Seller, at HCE's option, by check or Automated Clearing House
transfer within thirty days of the meter reading date if the value of the purchased energy
in a month is at least fifty dollars; if less, HCE may pay Seller quarterly. HCE shall have
the right, but not the obligation, to read the Facility's meter on a daily basis.
2.7. Title and Risk of Loss. HCE shall be deemed to take title to and shall assume the risk of
loss of the Product at the Delivery Point.
GREEN ATTRIBUTES
3.1. For the duration of the Delivery Term, Seller agrees that HCE is entitled to all Green
Attributes associated with the electricity generation from the Facility, and Seller hereby
conveys to HCE all present and future rights to such Green Attributes and agrees to take
all further steps required to effect such transfer to HCE at the time of any such delivery,
as further provided in Section 3.4.
3.2. Seller shall not sell, exchange, or reserve any claim of ownership of, the Green
Attributes from the Facility which are required to be conveyed to HCE or take any other
action that would prevent such Green Attributes from being used by HCE to meet the
Colorado Renewable Portfolio Standard.
3.3. Payment of the contract price in Section 2.4 shall constitute full payment for Green
Attributes and no additional consideration shall be due to Seller in respect of such
transfer.
3.4. Within ninety days of HCE's written request , the Parties shall cooperate to execute all
documents and instruments necessary and desirable to evidence the Green Attributes and
to effect or evidence transfer of such Green Attributes to HCE or its designee, including
with respect to participation by HCE or Seller in the Western Renewable Energy
Generation Information System ("WREGIS") of Green Attributes sold to HCE under
this Agreement. The Parties may use an alternate registration and tracking system upon
written mutual agreement. Each Party shall promptly give to the other Party copies of all
documents it submits to such registry, tracking or certification bodies to document,
record, or effectuate these obligations. Each Party shall bear its own costs for such
transfers, including administrative or membership costs.
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4. REPRESENTATIONS AND WARRANTIES; COVENANTS
4.1. Representations and Warranties. On the Execution Date, each Party represents and
warrants to the other Party that:
4.1.1. It is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its formation; and
4.1.2. The execution, delivery and performance of this Agreement are within its powers,
have been duly authorized by all necessary action and do not violate any of the
terms and conditions in its governing documents, any contracts to which it is a party
or any Law applicable to it; and
4.1.3. This Agreement and each other document executed and delivered in accordance
with this Agreement constitutes its legally valid and binding obligation, enforceable
in accordance with its terms, subject to applicable bankruptcy or similar laws
affecting creditors' rights generally and subject, as to enforceability, to equitable
principles of general application regardless of whether enforcement is sought in a
proceeding in equity or at law); and
4.1.4. It is not bankrupt or insolvent and there are no proceedings pending or being
contemplated by it or, to its knowledge, threatened against it which would result in
it being or becoming bankrupt or insolvent; and
4.1.5. There is not pending or, to its knowledge, threatened against it or any of its
affiliates any legal proceedings that could materially adversely affect its ability to
perform its obligations under this Agreement; and
4.1.6. It is acting for its own account, has made its own independent decision to enter
into this Agreement and as to whether this Agreement is appropriate or proper for it
based upon its own judgment, is not relying upon the advice or recommendations of
the other Party in so doing, and is capable of assessing the merits of, and
understands and accepts, the terms, conditions and risks of this Agreement.
4.2. General Covenants. Each Party covenants that throughout the Term of this Agreement:
4.2.1. It shall continue to be duly organized, validly existing and in good standing under
the laws of the jurisdiction of its formation;
4.2.2. It shall maintain (or obtain from time to time as required, including through
renewal, as applicable) all regulatory authorizations necessary for it to legally
perform its obligations under this Agreement; and
4.2.3. It shall perform its obligations under this Agreement in a manner that does not
violate any of the terms and conditions in its governing documents, any contracts to
which it is a party or any law, rule, regulation, order or the like applicable to it.
4.3. Seller Representations and Warranties. Seller hereby represents and warrants that it
holds all the rights to the Product, free and clear of all liens, taxes, claims, security
interests, and encumbrances or any interest therein or thereto by any person arising prior
to the Delivery Point, and that at the time of any delivery thereof to HCE, Seller will
transfer good and marketable title to the Product free and clear of any such
encumbrances or interests.
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4.4. Seller Covenant. Seller hereby covenants that at the Execution Date, the Facility is an
Eligible Energy Resource and that throughout the Delivery Term of the Agreement, the
Seller shall take all necessary actions within its power to ensure that the Facility will
continue at all times to meet the requirements for qualification as an Eligible Energy
Resource, and that its output shall be counted towards satisfying HCE's obligations
under the Colorado Renewable Portfolio Standard.
Seller further covenants that at the Execution Date, the Facility meets the requirements
of a "Qualifying Facility" (QF) under 18 Code of Federal Regulations (C.F.R.)
§292.203(a) and §292.204 and is exempt from filing a Form 556 self -certification with
the FERC under 18 C.F.R. §292.203(d). Seller shall take all necessary actions within its
power to ensure that the Facility will continue at all times to meet the requirements of a
QF.
5. GENERAL CONDITIONS
5.1. Facility Care, Interconnection and Transmission Service. Seller shall submit a Generator
Interconnect Application to HCE within one hundred eighty days of execution of this
Agreement. Seller shall pay and be responsible for designing, installing, operating, and
maintaining the Facility in accordance with the terms of the HCE Generator
Interconnection Policy, execute a Generator Interconnection Agreement and shall
comply with all applicable HCE, transmission operator, RUS (if applicable), PUC and
FERC regulations or tariffs, including applicable interconnection and metering
requirements under HCE's Generator Interconnect Policy. During the Delivery Term,
Seller shall undertake all arrangements necessary to interconnect with HCE, except as
HCE may otherwise determine, and shall be solely responsible to pay for any and all
necessary costs thereof, including as set forth in the Generator Interconnect Policy and
any related agreement with HCE. As a condition of HCE's obligation to accept and
purchase the Product from Seller, Seller must satisfy all obligations required by the
Generator Interconnect Policy and related agreements with HCE in full force and effect
throughout the Delivery Term.
5.2. Metering Requirements. HCE shall specify, install, and maintain an appropriate meter to
measure the energy delivered to HCE at the Delivery Point at Seller's sole expense. Such
meter shall comply with HCE's Generator Interconnect Policy and shall be capable of
being electronically read at least daily by HCE. Upon HCE request, Seller shall be
responsible for procuring and maintaining a communication link, as specified by HCE,
to electronically retrieve this metering data at Seller's sole expense.
5.3. Standard of Care. Seller shall: (a) maintain and operate the Facility and interconnection
facilities, except facilities installed by HCE, in conformance with all applicable laws and
regulations and in accordance with Good Utility Practices; (b) obtain any governmental
authorizations and permits required for the construction and operation thereof; and (c)
generate, schedule and perform transmission services in compliance with all applicable
operating policies, criteria, rules, guidelines and tariffs and Good Utility Practices. Seller
shall indemnify and hold HCE harmless for any and all losses, damages, claims,
penalties, or liability HCE incurs as a result of Seller's failure to obtain or maintain any
governmental authorizations and permits required for construction and operation of the
Facility throughout the Delivery Term of this Agreement.
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5.4. Access Rights. HCE, its authorized agents, employees and inspectors shall have the right
to inspect the Facility on reasonable advance notice during normal business hours and
for any purposes reasonably connected with this Agreement or the exercise of any and
all rights of HCE under Law, its tariff schedules or the Generator Interconnect Policy.
5.5. Emergency Coordination. Each Party shall use reasonable efforts to notify the other
Party of emergencies and other events adversely affecting its facilities and the delivery
of the Product hereunder, as soon as practicable following the occurrence of any such
event. Subject to Section 5.3, Seller and its Facility operator, if any, shall coordinate
Seller's response to any such emergency with HCE, provided that Seller shall keep HCE
advised of current procedures for communications directly between HCE and Seller and
with any Facility operator.
5.6. Protection of Property. Each Party shall be responsible for protecting its own facilities
from possible damage resulting from electrical disturbances or faults caused by the
operation, faulty operation, or non -operation of the other Party's facilities.
5.7. HCE Performance Excuse: HCE Curtailment.
5.7.1. HCE Performance Excuse. HCE shall not be obligated to accept or pay for the
Product during a Force Majeure affecting HCE nor shall HCE be obligated to accept
or pay for the Product during an HCE Curtailment as defined in Section 5.6.2 of this
Agreement.
5.7.2. HCE Curtailment. HCE may require Seller to interrupt or reduce deliveries of
energy: (a) when necessary to construct, install, maintain, repair, replace, remove, or
investigate any of its equipment or part of HCE's transmission system, distribution
system, or facilities; or (b) if HCE determines that curtailment, interruption, or
reduction is necessary because of an Emergency, Forced Outage, Force Majeure or
compliance with Good Utility Practice.
5.8. Notices of HCE Curtailment. Whenever practicable, HCE shall give Seller reasonable
notice of any HCE Curtailment.
5.9. Notice of Seller Outages. Whenever practicable, Seller shall give HCE reasonable notice
of any Scheduled Outage, Forced Outage or Force Majeure or other condition that may
cause Seller to interrupt or suspend deliveries of energy from the Facility.
6. INDEMNITY
Each Party as indemnitor shall save harmless and indemnify the other Party, its members,
affiliates, directors, officers, agents, and employees from and against any and all loss or liability
for injuries to persons including employees of either Party, and for any damage to property,
including the property of either Party, including all claims, demands, costs or expenses for which
such other Party may be deemed to be liable arising from any such loss, liability or damage,
resulting from or arising out of (a) the engineering, design, construction, maintenance, or
operation of the Facility; or (b) the installation of replacements, additions, or betterments to the
indemnitor's facilities. This indemnity and save harmless provision shall apply notwithstanding
the active or passive negligence of the indemnitee. Neither Party shall be indemnified for
liability or loss resulting from its gross negligence or willful misconduct. The indemnitor shall,
on the other Party's request, defend any suit asserting a claim covered by this indemnity and
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shall pay all costs, including reasonable attorney fees that may be incurred by the other Party in
enforcing this indemnity.
7. LIMITATION OF DAMAGES
Except as otherwise provided in this Agreement, there is no warranty of merchantability
or fitness for a particular purpose, and any and all implied warranties are disclaimed. Liability
shall be limited to direct actual damages only; such direct actual damages shall be the sole and
exclusive remedy and all other remedies or damages at law or in equity are waived unless
expressly herein provided. Neither party shall be liable for consequential, incidental, punitive,
exemplary or indirect damages, lost profits or other business interruption damages, by statute, in
tort or contract, under any indemnity provision or otherwise, unless expressly herein provided,
and subject to the provisions of Section 6 (Indemnity), it is the intent of the parties that the
limitations herein imposed on remedies and the measure of damages be without regard to the
cause or causes related thereto, including the negligence of any party, whether such negligence
be sole, joint or concurrent, or active or passive.
8. NOTICES
Notices shall, unless otherwise specified herein, be in writing and may be delivered by
hand delivery, United States mail, overnight courier service, or electronic messaging (e-mail)
when such delivery is followed by another method. Whenever this Agreement requires or
permits delivery of a "notice" (or requires a Party to "notify"), the Party with such right or
obligation shall provide a written communication in the manner specified below. A notice sent
by e-mail will be recognized and shall be deemed received on the Business Day on which such
notice was transmitted if received before 4 p.m. Mountain Standard time (and if received after 4
p.m., on the next Business Day) and a notice by overnight mail or courier shall be deemed to
have been received two Business Days after it was sent or such earlier time as is confirmed by
the receiving Party unless it confirms a prior oral communication, in which case any such notice
shall be deemed received on the day sent. A Party may change its addresses by providing notice
of same in accordance with this provision. All written notices shall be directed as follows:
To HCE by US Mail:
Holy Cross Energy
Attn: Vice President - Power Supply & Contracts
PO Box 2150
Glenwood Springs, CO 81602-2150
To HCE by courier or hand delivery:
Holy Cross Energy
Attn: Vice President - Power Supply & Contracts
3799 Highway 82
Glenwood Springs, CO 81601
To HCE by email: d og lis(&holycross.com with a copy to renewables &holycross.com
To Seller: See Appendix B.
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9. INSURANCE
9. 1. General Liability Coverage.
9.1.1. Seller shall maintain for the Delivery Term specified herein, General Liability
Insurance of not less than $1,000,000 of combined single limit or equivalent for
bodily injury, personal injury, and property damage as the result of any one
occurrence.
9.1.1.1. HCE shall be named as an additional insured by endorsement to the
insurance policy.
9.1.1.2. Such liability insurance shall provide, by endorsement to the policy, that
HCE shall not by reason of its inclusion as an additional insured incur liability
to the insurance carrier for the payment of any premium for such insurance.
9.1.1.3. The liability insurance shall not exclude coverage for any incident related
to the subject generator or its operation.
9.1.2. General Liability Insurance shall include coverage for liability arising from
premises, operations, independent contractors, products/completed operations,
contracts, property damage, personal injury and advertising injury, and liability
assumed under an insured contract (including the tort liability of another assumed in
a business contract).
9.1.3. Such insurance shall provide for thirty days written notice to HCE prior to
cancellation, termination, alteration, or material change of such insurance.
9.2. Additional Insurance Provisions.
9.2.1. Evidence of coverage described above in Paragraph 9.1 shall state that coverage
provided is primary and is not excess to or contributing with any insurance or self-
insurance maintained by HCE.
9.2.2. HCE shall have the right to inspect or obtain a copy of the original policy(ies) of
insurance.
9.2.3. Seller shall furnish the certificates and endorsements required under this
Agreement to HCE prior to the Initial Date of Delivery.
9.2.4. Seller shall ensure that its insurance carrier(s) shall provide HCE with thirty days'
prior notice or such other notice as is practicable of any lapse, cancellation,
termination, non -renewal or material change to Seller's insurance.
9.2.5. All insurance certificates, endorsements, cancellations, terminations, non -renewal
and material changes of such insurance shall be issued and submitted in accordance
with Section 8.
10. TERM, DEFAULT, TERMINATION EVENT AND TERMINATION
10.1. Term. The term of this Agreement shall commence upon the execution by the
duly authorized representatives of each of HCE and Seller and shall remain in effect
until the conclusion of the Delivery Term or unless terminated sooner pursuant to
Section 10.3 of this Agreement (the "Term"). All indemnity rights shall survive the
termination of this Agreement for twelve months.
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10.2. Termination Event. Each of the following events shall constitute a "Termination
Event", as the result of which HCE shall be entitled to terminate the Agreement in
accordance with Section 10.3:
10.2.1. Seller fails to submit an interconnection application in compliance with HCE's
Interconnection Policy within 180 days of the execution of this Agreement; or
10.2.2. Seller fails to submit a timely application to FERC pursuant to Section 2.2; or
10.2.3. Seller is denied QF status by the FERC; or
10.2.4. The Facility has not achieved Commercial Operation by the deadline in Appendix
B; or
10.2.5. Seller has not sold or delivered energy from the Facility to HCE for a period of
twelve consecutive months; or
10.2.6. Seller breaches any representation or warranty set forth herein; or
10.2.7. Seller breaches its covenant to maintain the Facility's status as an Eligible Energy
Resource as set forth in Section 4.4 of the Agreement; or
10.2.8. Seller breaches its covenant to maintain the Facility's status as a QF as set forth in
this Agreement; or
10.2.9. Seller makes an assignment for the benefit of its creditors, excluding, for clarity,
any assignment permitted under Section 12; or
10.2.10. Seller files a petition of otherwise commences, authorizes, or acquiesces in the
commencement of a proceeding or cause of action under any bankruptcy,
insolvency, or similar law for the protection of creditors, or has such petition filed
against it and such petition is not withdrawn or dismissed for sixty days after such
filing.
10.3. Termination.
10.3.1. Declaration of a Termination Event. If a Termination Event has occurred and is
continuing, HCE shall have the right to: (a) send notice, designating a day, no
earlier than five days after such notice is deemed to be received (as provided in
Section 8) and no later than twenty days after such notice is deemed to be received
(as provided in Section 8), as an early termination date of this Agreement ("Early
Termination Date") unless Seller has timely communicated with HCE and the
Parties have agreed to resolve the circumstances giving rise to the termination
Event; (b) accelerate all amounts owing between the Parties; and (c) terminate this
Agreement and end the Delivery Term effective as of the Early Termination Date.
10.3.2. Release of Liability for Termination Event. Upon termination of this Agreement
pursuant to Section 10.3.1, neither Party shall be under any further obligation or
subject to liability hereunder, except with respect to the indemnity provision in
Section 6 hereof, which shall remain in effect for a period of 12 months following
the Early Termination Date.
10.3.3. RUS Approval. If applicable, the effectiveness of this Agreement is conditioned
upon HCE's receipt of any required approval from the Rural Utilities Service of the
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US Department of Agriculture (RUS). HCE shall have no obligation to Seller as a
result of HCE's failure to obtain any such approval despite HCE's reasonable efforts
to do so.
11. CONFIDENTIALITY
Each Party agrees to keep confidential, except as required by law, all documents
(excluding this Agreement), data, drawings, studies, projections, plans, and other written
information provided by one Party that is not in the public domain and that the providing Party
labels as "Confidential Information" at the time of delivery; provided that to the extent
Confidential Information regarding the Facility is not in the public domain, a Party may disclose
such information to the FERC, the North American Electric Reliability Corporation, Public
Service Company of Colorado, the RUS, PUC, any of their successor organizations, and/or any
other regulatory body, transmission operator, or governmental entity as necessary to comply with
reasonable requests, applicable rules, regulations or contract obligations. A Party may also
provide Confidential Information to its counsel, accountants, auditors, advisors, other
professional consultants, credit rating agencies, lenders, underwriters, contractors, brokers,
suppliers and others involved in construction, operation and financing arrangements for a Party
or its subsidiaries or affiliates.
12. ASSIGNMENT
12.1. Neither Party shall assign this Agreement or its rights hereunder without the prior
written consent of the other Party, which consent shall not be unreasonably withheld;
provided, however, either Party may, without the consent of the other Party (and without
relieving itself from liability hereunder), transfer, sell, pledge, encumber or assign this
Agreement to its financing providers for collateral security purposes, provided that as a
condition to becoming a Party to this Agreement or exercising any rights hereunder, the
financing provider(s) or any transferee, as the case may be, shall agree in writing to be
bound by the terms and conditions hereof and shall provide such further assurances as
the non -transferring Party shall reasonably request. A Party executing a transfer, sale,
pledge, encumbrance, or assignment shall provide the other Party written notice of such
within 30 days of the effective date of such transaction.
12.2. HCE hereby notifies Seller that upon execution hereof, this Agreement shall be
assigned by HCE for collateral security purposes to any such lender with existing loans
to HCE that require such assignment. This may include the Administrator of the Rural
Utilities Service of the United States Department of Agriculture, who shall have the
authority set forth in 7 U.S.C. § 907, the National Rural Utilities Cooperative Finance
Corporation, or CoBank, ACB.
13. APPLICABLE LAW
This Agreement and the rights and duties of the parties hereunder shall be governed by
and construed, enforced and performed in accordance with the laws of the state of Colorado,
without regard to principles of conflicts of law. To the extent enforceable at such time, each
party waives its respective right to any jury trial with respect to any litigation arising under or in
connection with this Agreement. Any proceedings to enforce this Agreement, declare the
parties' rights and obligations under it, or in any way relating to it shall be brought in federal or
state court, in Garfield County, Colorado. Each of the parties expressly consents to the
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jurisdiction of either court over them personally for such purpose, and waives any objection to
personal jurisdiction and venue in either court for such purpose.
14. SEVERABILITY
If any provision in this Agreement is determined to be invalid, void or unenforceable by
any court having jurisdiction, such determination shall not invalidate, void, or make
unenforceable any other provision, agreement or covenant of this Agreement and the Parties
shall use their best efforts to modify this Agreement to give effect to the original intention of the
Parties.
15. COUNTERPARTS
This Agreement may be executed in one or more counterparts each of which shall be
deemed an original and all of which shall be deemed one and the same Agreement. Delivery of
an executed counterpart of this Agreement by facsimile or PDF transmission will be deemed as
effective as delivery of an originally executed counterpart. Each Party delivering an executed
counterpart of this Agreement by facsimile or PDF transmission will also deliver an originally
executed counterpart, but the failure of any Party to deliver an originally executed counterpart of
this Agreement will not affect the validity or effectiveness of this Agreement.
16. GENERAL
16.1. Modification and Waiver. No amendment to or modification of this Agreement
shall be enforceable unless reduced to writing and executed by both parties.
16.2. Successors and Assigns. This Agreement inures to the benefit of and is binding
upon the Parties and their respective successors and permitted assigns. This Agreement
shall not impart any rights enforceable by any third party other than a permitted
successor or assignee bound to this Agreement.
16.3. No Prior Agreements. This Agreement supersedes all other prior understandings
or agreements, both written and oral, between the Parties relating to the subject matter
hereof.
16.4. No Waiver. Waiver by a Party of any default by the other Party shall not be
construed as a waiver of any other default, nor shall any delay by a Party in the exercise
of any right under this Agreement be considered as a waiver or relinquishment thereof.
16.5. Headings. The headings used herein are for convenience and reference purposes
only.
16.6. Rules of Construction. "Hereof," "herein," "hereunder" and similar words refer to
this Agreement in its entirety. "Or" is not necessarily exclusive. The term "including"
when used in this Agreement shall be by way of example only and shall not be
considered in any way to be in limitation.
16.7. No Third Party Beneficiaries. This Agreement confers no rights whatsoever upon
any person other than the Parties and shall not create, or be interpreted as creating, any
standard of care, duty or liability to any person not a Party hereto.
16.8. This Agreement was negotiated and prepared by both Parties with the advice and
participation of counsel. None of the provisions hereof shall be construed against one
Party on the ground that such Party is the author of this PPA or any part hereof.
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16.9. The Parties shall act reasonably and in accordance with the principles of good
faith and fair dealing in the performance of this Agreement.
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IN WITNESS WHEREOF, each Party has caused this Agreement to be duly executed by its
authorized representative as of the date of last signature provided below.
HOLY CROSS ELECTRIC ASSOCIATION, INC.
'ka"�( D ', Digitally 8.06.1ned 1 Diana G06'
pC//�7..'/^'". Date:2018.06.1212:22:23 -06'00'
Date: June 12, 2018
Name: Diana L. Golis
Title: VP Power Supply & Contracts
SELLER
By: Date:
Name: el 4j y�' c -
Title:
w l l7 0-kykg
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Appendix A
DEFINITIONS
"Automated Clearing House" means the electronic funds -transfer system run by the
National Automated Clearing House Association or such other automated payment system as
mutually acceptable to the Parties.
"Business Day" means any day except a Saturday, Sunday, or a Federal Reserve Bank
holiday during the hours of 8:00 a.m. and 5:00 p.m. Mountain Prevailing Time.
"Colorado Renewable Portfolio Standard" means the renewable energy program and
policies established by §40-2-124 C.R.S, as such provision may be amended, supplemented or
replaced from time to time, including the regulations pursuant thereto.
"Contract Year" means a period of twelve consecutive months with the first Contract
Year commencing on the first day of the month immediately following the Initial Energy
Delivery Date and each subsequent Contract Year commencing on the anniversary of the Initial
Energy Delivery Date.
"Delivery Point" means the point of interconnection to the HCE distribution system as
further described in Appendix B.
"Delivery Term" shall have the meaning set forth in Section 2.4 of this Agreement.
"Eligible Energy Resource" means an "eligible energy resource" as defined pursuant to
the Colorado Renewable Portfolio Standard, as such provision may be amended, supplemented
or replaced from time to time, including the regulations thereto.
"Emergency" means any abnormal interconnection or system condition that requires
automatic or immediate manual action to prevent or limit loss of HCE's load or generation
supply, that could adversely affect the reliability of the HCE system or generation supply, that
could adversely affect the reliability of any interconnected system, or that could otherwise pose a
threat to public safety.
"Execution Date" means the latest signature date found at the end of the Agreement.
"FERC" means the Federal Energy Regulatory Commission or any successor government
agency.
"Forced Outage" means any unplanned reduction or suspension of the electrical output
from the Facility resulting in the unavailability of the Facility, in whole or in part, in response to
a mechanical, electrical, or hydraulic control system trip or operator -initiated trip in response to
an alarm or equipment malfunction and any other unavailability of the Facility for operation, in
whole or in part, for maintenance or repair that is not the result of Force Majeure.
"Force Majeure" means any event or circumstance which wholly or partly prevents or
delays the performance of any material obligation arising under this Agreement, but only if and
to the extent (i) such event is not within the reasonable control, directly or indirectly, of the Party
seeking to have its performance obligation(s) excused thereby, (ii) the Party seeking to have its
performance obligation(s) excused thereby has taken all reasonable precautions and measures to
prevent or avoid such event or mitigate the effect of such event on such Party's ability to perform
its obligations under this Agreement and which by the exercise of due diligence such Party could
Page 13 of 19
not reasonably have been expected to avoid and which by the exercise of due diligence it has
been unable to overcome, and (iii) such event is not the direct or indirect result of the negligence
or the failure of, or caused by, the Party seeking to have its performance obligations excused
thereby. Force Majeure shall not be based on: (i) HCE's inability economically to use or resell
the energy or capacity purchased hereunder; (ii) Seller's ability to sell the energy, capacity or
other benefits produced by or associated with the Facility at a price greater than the price set
forth in this Agreement, (iii) Seller's inability to obtain approvals of any type for the
construction, operation, or maintenance of the Facility; (iv) a strike or labor dispute limited only
to Seller, Seller's affiliates, the Engineering, Procurement, and Construction Contractor or
subcontractors thereof; or (v) any equipment failure not caused by an event of Force Majeure of
the specific type described in any of subsections (i) through (iv) of this definition of Force
Majeure.
"Generator Interconnect Agreement" and "Generator Interconnect Policy" are the
documents detailing the requirements and obligations of Seller and HCE involved with the
interconnection of a generator to the HCE distribution system, available from HCE's
Engineering Department.
"Good Utility Practices" means any of the practices, methods and acts engaged in or
approved by a significant portion of the electric industry during the relevant time period, or any
of the practices, methods and acts which, in the exercise of reasonable judgment in light of the
facts known at the time the decision was made, could have been expected to accomplish the
desired result at a reasonable cost consistent with good business practices, reliability, safety and
expedition. Good Utility Practice is not intended to be limited to the optimum practice, method,
or act to the exclusion of all others, but rather to be acceptable practices, methods, or acts
generally accepted in the region.
"Green Attributes" mean the full set of environmental, power source and emissions
characteristics, whether in the form of credits (including Renewable Energy Credits), benefits,
emissions reductions, offsets, allowances or by any other designation, attributable to the
generation of electric energy from the Facility. Green Attributes include but are not limited to (1)
any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, hydrofluoro
carbons, perfluoro carbons, sulfur hexafluoride and other greenhouse gases (GHGs) that have
been determined by the United Nations Intergovernmental Panel on Climate Change, or
otherwise under Law, to contribute to the actual or potential threat of altering the Earth's climate
by trapping heat in the atmosphere, (2) any avoided emissions of sulfur oxides (SO,), nitrogen
oxides (NOX) and carbon monoxide (CO), and of any other pollutant of the air, soil or water
(other than GHGs) that is now or is proposed now or in the future to be regulated under Law,
including as part of any renewable portfolio standard, or tradable under any registration or
trading program, whether or not such Law, portfolio standard or registration or trading program
is enacted, implemented or promulgated; and (3) the right of HCE as the owner or prospective
owner of Green Attributes to report the ownership of accumulated Green Attributes to any
agency, authority or other party, including without limitation those Green Tag Reporting Rights
accruing under Section 1605(b) of The Energy Policy Act of 1992 and any present or future
domestic, international or foreign Law, renewable portfolio standard or registration or trading
program. One MWh of energy output generated from the Facility is assumed to be the equivalent
to one unit of Green Attributes, subject to applicable Law, standards or trading program
requirements. Green Attributes do not include: (i) any energy, capacity, reliability or other power
Page 14 of 19
attributes from the Facility; (ii) production tax credits associated with the construction or
operation of the energy projects and other financial incentives in the form of credits, reductions,
or allowances associated with the project that are applicable to a state or federal income taxation
obligation; or (iii) fuel -related subsidies or "tipping fees" that may be paid to Seller to accept or
dispose of certain fuels, or local subsidies received by the generator for the destruction of
particular pre-existing pollutants or the promotion of local environmental benefits.
"Initial Energy Delivery Date" means the date on which (i) the Facility is capable of
operating; (ii) HCE confirms Seller's satisfaction of all applicable requirements for
interconnection with HCE, including those requirements as set forth in HCE's Generator
Interconnect Policy and any applicable agreements between the Parties; and (iii) Seller produces
and delivers energy to HCE pursuant to the terms of this Agreement.
"Law" means any statute, law, treaty, rule, regulation, ordinance, code, permit,
enactment, injunction, order, writ, decision, authorization, judgment, decree or other legal or
regulatory determination or restriction by a court or Governmental Authority of competent
jurisdiction, including any of the foregoing that are enacted, amended, or issued after the
Execution Date, and which becomes effective during the Delivery Term; or any binding
interpretation of the foregoing.
"Product" means the energy (net of Station Use), capacity and all ancillary products,
services or attributes similar to the foregoing which are or can be produced by or associated with
the Facility, including, without limitation, renewable attributes, Renewable Energy Credits, and
Green Attributes.
"PUC" means the Colorado Public Utilities Commission, or successor entity.
"Renewable Energy Credit" or "REC" has the meaning set forth in C.R.S. § 40-2-124, as
may be amended from time to time or as further defined or supplemented by Law, and any
regulations adopted pursuant to this section.
"RUS" means the Rural Utilities Service of the US Department of Agriculture, or
successor entity.
"Scheduled Outage" means any reduction in deliveries for any purpose that is anticipated
or scheduled in advance of the reduction.
"Station Use" means energy consumed within the Facility's electric energy distribution
system as losses, as well as energy used to operate the Facility's auxiliary equipment. The
auxiliary equipment may include, but is not limited to, plant lighting, control systems,
communications systems and inverters.
Page 15 of 19
Appendix B
Facility Description
Facility name: Town of Avon, A Colorado Home Rule Municipality
Address: 100 Mikaela Way, Avon, CO
County: Eagle County
AC nameplate rating: 130 kW DC nameplate rating: 150.15 kW
Inverter output voltage: 480 V 3 -Phase Grounding method: Zig-Zag transformer
Delivery point: 480V terminals of the HCE supplied site transformer
Scheduled Initial Energy Delivery Date: August 31, 2018
Contract Price
First calendar year Contract Price. Commencing at the Initial Energy Delivery Date through
the end of the first calendar year, HCE shall pay Seller for each kWh delivered at the Delivery
Point at a rate of $0.09572 per kWh.
Escalation. Each year of the Delivery Term after the first calendar year on the first day of each
calendar year, the Contract Price shall be increased by 2.0% from the prior year's rates and
rounded to five decimal places.
Seller Contact Information
To Seller by US Mail:
".1
To Seller by courier or hand delivery:
Attn:
To Seller by email:
Page 16 of 19
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Appendix C
Initial Energy Delivery Date Confirmation Letter
In accordance with the terms of that certain Renewable Generator Power Purchase Agreement
dated ("Agreement") by and between Holy Cross Energy and St. Benedict's Monastery
("Seller"), this letter serves to document the parties further agreement that (i) the conditions
precedent to the occurrence of the Initial Energy Delivery Date have been satisfied, and (ii)
Seller has delivered and HCE has received the Product, as specified in the Agreement, as of this
day of , 20_. This letter shall confirm the Initial Energy Delivery Date, as
defined in the Agreement, as the date referenced in the preceding sentence.
IN WITNESS WHEREOF, each Party has caused this Agreement to be duly executed by its
authorized representative as of the date of last signature provided below:
SELLER
By: Date:
Name:
Title:
HOLY CROSS ELECTRIC ASSOCIATION, INC.
By: Date:
Name:
Title:
This Agreement is effective when accepted and executed by HCE.
Page 19 of 19