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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 12/08/2009 - PLATTE RIVER POWER AUTHORITY ORGANIZATION AND GOVE DATE: December 8, 2009 STAFF: Brian JanoAftebes WORK SESSION ITEM Darin Atteberry Joe Wilson, Platte River FORT COLLINS CITY COUNCIL Power Authority Pre-taped staff presentation: available at fcgov.com/c/erk/agendas.php SUBJECT FOR DISCUSSION Platte River Power Authority Organization and Governance/Contract Approval Status EXECUTIVE SUMMARY This is the first of a two-part discussion on Platte River Power Authority(PRPA). This work session discussion will focus on the organization of the Authority by the four cities of Estes Park, Fort Collins, Longmont, and Loveland. A Platte River representative will present the governance structure as defined by the Organic Contract, including the role of the Board of Directors. Significant Platte River Power Authority governing policies and communications between Platte River and the Fort Collins City Council will also be discussed. A second presentation on April 13, 2010, will discuss Platte River Power Authority's generation resources including renewable energy resources, demand side management and energy efficiency programs, emissions, and its Climate Action Plan. In addition, Platte River Power Authority will discuss how its operations have changed in response to the changing environment. GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED 1. What questions or concerns does Council have concerning Platte River Power Authority governance? 2. Are there questions or concerns about the way that the Fort Collins' City Council provides input to its Platte River board representatives regarding policy matters? 3. Is the City Council ready to move forward with consideration of either one of the following versions of the Organic Contract and the Power Supply Contract: a. the contracts as originally proposed and approved by the other PRPA municipal members, or b. the versions that were approved by Fort Collins City Council on March 24, 2009, with modifications suggested by PRPA? December 8, 2009 Page 2 BACKGROUND HISTORICAL BACKGROUND To understand Platte River Power Authority, it is helpful to understand the history behind its formation. Fort Collins Light&Power was created in 1935 and constructed its first power plant in 1936. Beginning in the 1950s, as the City outgrew its power plant capacity, it purchased hydropower from the U.S. Bureau of Reclamation. In the mid-1960s, the Bureau of Reclamation informed wholesale customers that future expansions of federal hydropower resources were unlikely. Facing limits on the availability of additional federal hydropower, similarly situated municipal utilities in Northern Colorado began to explore joint action options. One of the motivating factors for pursuing joint action was the thought that through joint action smaller municipal utilities could take advantage of economies of scale in future resource development. The cities of Estes Park, Fort Collins, Longmont, and Loveland formed Platte River Municipal Power Association in 1965. Platte River Municipal Power Authority, Inc. was reincorporated in 1971. Later, the name of the entity was changed to Platte River Power Authority. Platte River began actual utility operation in 1973,with the stated purpose to generate and transmit power to the four Municipalities. At about this time, Fort Collins closed its coal-fired power plant on North College(now the CSU Engines Lab) and Fort Collins Light&Power became a distribution utility. The other three Municipalities followed a similar path and decommissioned their small thermal generating units. This effectively created a division of labor under which the Municipalities operated retail distribution utilities and Platte River became responsible for the generation and transmission resources and related operations necessary to provide wholesale power sufficient to meet the retail needs of the Municipalities. Subsequently, it was determined that Platte River, as a non-profit corporation, could not issue tax- exempt bonds to finance capital projects. This presented a significant problem because at that time under Colorado law there was no ready legal mechanism for a joint action entity to issue tax-exempt bonds. The Municipalities worked with local political leaders to amend the Colorado statutes, adding a provision authorizing municipal distribution utilities to create a generation and transmission entity separate from the Municipalities. Such an entity could issue tax-exempt bonds that were debt of the power authority and not obligations of the municipal members. Legislation to this effect was drafted by the General Counsel of Platte River in early 1975 and adopted by the General Assembly in 1975. Under this legislation, codified as C.R.S. § 29-1-204,municipalities operating electric utilities may contract to form a "power authority" for the purpose of developing generation and transmission resources for the benefit of the inhabitants of the contracting municipalities. The resulting power authority is a"separate governmental entity" and "a political subdivision and a public corporation of the state." Some of the statutory attributes and capabilities of such power authority are: 1. The governing body shall be"a board of directors in which all legislative power of the entity is vested" 2. The board of directors shall take action by majority vote unless otherwise provided 3. The power authority may condemn property for public use 4. The power authority may set rates for services provided December 8, 2009 Page 3 5. The power authority may incur debt,which debt shall be the debt of the power authority and not the debt of the contracting municipalities 6. The power authority may exercise any other power essential to the functions specified in the contract forming the power authority. On June 17, 1975, Platte River Power Authority was established by contract for the purpose of generating and transmitting electric power and energy to the four Municipalities. The Cities serve as distribution utilities and have a collaborative relationship among them and with Platte River. Platte River has consistently worked to develop policies and programs with the flexibility to meet the individual needs of the Cities. An example of this responsiveness would be the development of a renewable energy policy that meets the individual needs of the Cities. The City of Fort Collins is mandated to meet state standards for renewable energy while the other three Cities do not have this mandate. As a result, Platte River purchases renewable energy to meet the Fort Collins requirement as well as the City's voluntary Green Energy program. For the other three Cities, Platte River provides renewable energy for voluntary programs only. Platte River's approach to demand-side management is equally as responsive. The City of Fort Collins Home Energy Reporting program was developed collaboratively with Platte River, although the other Cities are not participating. Other examples are the conversion of a transmission line from overhead to underground at the request of Fort Collins City Council despite the additional cost to the other three Cities. Additionally, for the Cities of Loveland and Estes Park, Platte River provides substation design, construction and maintenance services,while the Cities of Fort Collins and Longmont manage these functions for their own facilities. These are a few examples to illustrate the flexibility and responsiveness of Platte River to the individual needs of the Cities. The contract creating Platte River is commonly referred to as the Organic Contract. For the most part, the Organic Contract incorporates the powers and authorities set forth in C.R.S. § 29-1-204. The Organic Contract initially ran through 2020, but the term was extended in 1998 and now runs through December 31, 2040. The termination date has been routinely extended primarily for purposes of public finance. GOVERNANCE The direction from the Platte River Board to Platte River's General Counsel concerning the drafting of the 1975 legislation was clear: the separate governmental entity should be created"in a manner which will preserve for Platte River essentially the same powers and functions it now has as a non- profit corporation." (Resolution No. 9-75 - Attachment 2) Accordingly, C.R.S. § 29-1-204(4) defines power authorities to be "public corporation[s] of the state." Governance by a board of directors is required. C.R.S. § 29-1-204(2) states that the "contract establishing such separate governmental entity shall specify: (b) The establishment and organization of a governing body of the entity, which shall be a board of directors in which all legislative power of the entity is vested,..." In conformance with this statutory directive, the Organic Contract makes provision for a Board of Directors as the governing body of Platte River. The Board is composed of eight Directors, two from each of the Municipalities. The Organic Contract makes provision for a Chairman of the Board and corporate officers, including a Treasurer and Secretary. Officers are elected by the Board December 8, 2009 Page 4 at annual meetings. Moreover, when the Organic Contract was drafted it was modeled after, and included many provisions from, the Platte River corporate bylaws. A. Authority of the Directors to Exercise Independent Judgment. Prior to 1976, Platte River had a four-person Board of Directors, with one representative from each municipality. The Directors acted on matters before the Board based upon their independent judgment; that is, without specific, formal direction from the respective municipality they represented. In 1974, Longmont adopted Resolution No. 40, Series 1974, (Attachment 3) which sought incorporation of certain new provisions into the bylaws of Platte River. The provisions desired by Longmont would have limited the authority of the Board members to act absent direction from the councils of the Municipalities. Specifically, under the Longmont proposal: Platte River budgets could not be adopted "without prior assent of a majority of the City Councils of the participants; bonded debt could not be issued without the consent of at least three of the municipal councils; and "[e]ach Board member shall have authorization from their respective Councils prior to voting on material matters considered by the Board." When the Longmont proposal was placed before the Platte River Board, the Board adopted Resolution No.37-74(Attachment 4). Resolution No.37-74 instructed the Directors to"review this matter with their respective city councils and seek their guidance and direction as to the procedure to be followed by Platte River Power Authority." The Resolution contained cautionary language, stating that"to impose the requirement of prior authorization upon the exercise of judgment by the Directors, or by any individual Director, would reduce the effectiveness of Platte River as a corporate organization and thereby weaken its ability to respond to changing situations and emergencies, and to require prior authorization on all material matters would leave only routine or trivial matters upon which a Director would be asked to exercise independent judgment." When this issue was considered by the Fort Collins the City Council on October 3, 1974, it adopted Resolution 1974-087(Attachment 5). The most relevant portion of the Resolution is quoted below: "The Council of the City of Fort Collins hereby requests that no substantial changes be made at this time in the by-laws of Platte River Power Authority, and more specifically that its prior approval not be required before adoption of a budget or before the incurring of debt by the Authority and that no specific authorization from the City Council be required in connection with the vote of its representative to the Board of Directors of Platte River Power Authority." Subsequently,the Platte River Board adopted Resolution No.41-74(Attachment 6). The Resolution directed that no changes be made to the Platte River by-laws, but "requested and directed" Board members to take the steps enumerated in the Resolution to keep their relevant councils informed. This Resolution was adopted unanimously. Review of subsequent minutes and resolutions of Platte River does not indicate any recurrence of this issue. The Platte River Organic Contract is silent as to the manner in which Municipality representatives are to exercise their judgment as members of the Platte River Board. The extent, December 8, 2009 Page 5 type and manner of policy input or direction, if any, that a Municipality gives to its Board representatives is not prescribed. B. Inclusion of Mayors on the Board of Directors. The four-member Board was carried over from the non-profit corporate form and included in the initial iteration of the Organic Contract. About one year after adoption of the Organic Contract,the Board of Directors was enlarged to include the mayors of the Municipalities. Resolution No. 45-76 (Attachments 7-and 8) explains the rationale for expanding the Board to include the mayors: "WHEREAS, the careful consideration of energy, environmental, and economic aspects, together with public opinion and policies established by local governments is, and will continue to be, an integral part of Platte River's Board of Directors' policymaking for meeting its responsibilities; and WHEREAS, additional input and viewpoints from publicly elected officials would contribute significantly to policymaking and would strengthen Platte River's relationships with the councils of its constituent Municipalities and the governing bodies of other local governments." The Resolution recommended this modification to the councils of the Municipalities. The Municipalities agreed to this change and the Organic Contract was so modified. C. The Weighted Vote Provision. Another governance provision that dates to the period when Platte River was a non-profit corporation is the procedure for a weighted vote. The bylaws initially provided that actions of the Board shall be taken based upon a majority vote. This reflected a"senatorial"system in which each member's vote counted equally, irrespective of the relative size of their municipality. Given the possibility of a tie vote with an even number of Board members (both then and now), the bylaws were amended through Resolution No. 56-74 (Attachment 9) to include a weighted vote in the instance of a tie vote. C.R.S. § 29-1-204(2)(b)(IV)addresses voting requirements for the boards of power authorities and requires a majority vote of the directors for action unless the formative contract provides otherwise. The Organic Contract continues inclusion of a provision for a weighted vote,but only if a tie exists in the Board members' votes. In the event of a tie, weight is assigned to Board members' votes on the basis of relative power purchases among the Municipalities. No instances of a weighted vote have occurred. If one were to be called, the weight of the Fort Collins' representatives on the Board would be approximately 47% of the voting strength. D. Authorization of Legislative Activity In the mid-1970s, two significant legal impediments prevented Platte River from effectively pursuing its purpose of developing generation and transmission resources for the benefit of the December 8, 2009 Page 6 Municipalities. The first was a Colorado Constitutional provision which prevented municipal participation with private entities in business ventures. This prohibition complicated participation in the Yampa Project. The second impediment involved the lack of a vehicle for the issuance of tax exempt debt. Platte River was proactive in resolving each of these issues. As noted above, counsel for Platte River produced the initial draft of the legislation codified at C.R.S. § 29-1-204. Subsequently, the legislative activities of Platte River can be characterized as more reactive. Platte River monitors activities which affect its interests, but has not again assumed any formative role in legislation. Under the Organic Contract,the General Manager is the"principal executive officer of the Authority with full responsibility [to act] pursuant to policies and programs approved by the Board of Directors." During the tenure of the current General Manager, it has been the practice to distribute a legislative and environmental policy statement to the Board on an annual basis. This document identifies, discusses and occasionally presents positions on pending or anticipated issues under consideration in Congress, the General Assembly or before regulatory agencies. This document is discussed by the Board upon distribution. A copy of the PRPA 2009 General Legislative and Environmental Policy Statement is attached (Attachment 10). Each meeting of the Board includes an agenda item which updates the Board on pending legislative and regulatory matters, at which time the Board gives appropriate direction as it deems necessary. With the recent formal approval by City Council of the Fort Collins 2010 Legislative Policy Agenda, this information has been conveyed to Platte River. Understanding Fort Collins' position on legislative policy will help Platte River staff identify areas of potential concern. When issues related to items in the Fort Collins Legislative Policy Agenda arise, Platte River staff can alert the Board so that they can then be discussed more thoroughly at the Board meetings. GENERAL POWER BOND RESOLUTION Because the primary function of Platte River has always been the development and operation of generation and transmission resources necessary to meet the needs of the Municipalities,the ability to raise capital funds in the bond market has always been of primary significance. In 1973, Platte River received start-up capital contributions in an amount of$356,000 from the Municipalities and met its operating expenses through power sales from the assigned wholesale power purchase agreements with the Bureau of Reclamation. Since 1975,Platte River has sold$2.2 billion in bonds (some in the nature of refunding). Fundamental to the ability to issue this funding is the General Power Bond Resolution, Resolution No. 5-87 (Resolution No. 5-87 superseded the prior General Bond Resolution, Resolution No. 46-75). By its terms, Resolution No. 5-87 constitutes a contract between Platte River and the bondholders. The power supply agreements with the Municipalities are the primary source of revenue upon which repayment of the bonds depends,and accordingly one of the covenants of Resolution No. 5-87 states that: "The Authority shall enforce the provisions of the Electric Service Contracts and duly perform its covenants and agreements thereunder. The Authority will not consent or agree to or permit any rescission of or amendment to any Electric Service Contract which will in any manner impair or adversely affect the rights of the December 8, 2009 Page 7 Authority thereunder or the rights or security of the Bondholders under the Resolution,and any action by the Authority in violation of this covenant shall be null and void as to the Authority and any other party to the Electric Service Contract." The referenced "Electric Service Contracts" are the all-requirements power supply agreements between Platte River and the Municipalities, each of which allows municipal generation from only those facilities in service as of September 5, 1974. Fort Collins had no generation facilities in service as of that date. REVISED CONTRACT DOCUMENTS The staff of Platte River and the Municipalities initiated an effort to revise and extend the Organic Contract and the power supply agreements between Platte River and the Municipalities in late 2007. The goals of this process included: I. extending the term of the Organic Contract and the power supply agreements through 2050 2. the elimination of the Facilities Agreements between Platte River and each of the Municipalities and the incorporation of the relevant provisions into the new power supply agreements 3. the creation of a limited exception to the all-requirements nature of the power supply agreements so that the Municipalities could pursue local renewable energy generation options 4. general editorial updating. No modification of the governance model contained in the Organic Contract was proposed. In fact, the governance model has not changed since the Organic Contract was amended in 1976 to include mayors as Board members. Platte River suggested the limited exception to the all-requirements limitation,believing there was a convergence of interests on this issue. Platte River has in the past received requests for a waiver of the all-requirements provision in order to allow small local generation resources, and further understood there to be a present desire on the part of all the Municipalities to develop some local distributed renewable generation resources. When confronted by requests to waive the all-requirements provision in the past, Platte River has considered each request on a case-by-case basis and has issued "deminimus" letters, effectively waiving the all-requirements provision in that instance. The "deminimus"process raised a couple of troubling issues. First, these waivers were never disclosed to bondholders. Second, there was no real definition as to what constituted a deminimus level of local generation and no mechanism to apportion local generation among the Municipalities when this standard was applied on a case-by- case basis. Consequently,Platte River suggested that an exception be created to the all-requirements limitation in an amount of one percent of peak load for each of the Municipalities. This would remove Platte River from any review and waiver role, leaving these local resource decisions with the Municipalities. After consultation with bond counsel it was determined that, for future financings, the official statements would disclose this exception as a means of alerting future bondholders. There continues to be some risk associated with present bondholders, but bond counsel agreed that creating a limited exception to the all-requirements restriction was more defensible than the prior deminimus letter process. December 8, 2009 Page 8 There does not appear to be any controversy concerning the termination of the Facilities Agreements and the integration of relevant provisions into the Power Supply Agreements. STATUS OF THE ORGANIC CONTRACT AND THE POWER SUPPLY CONTRACT APPROVALS Estes Park and Longmont approved the updated agreements in July and September 2008. Fort Collins held a work session on the updated agreements in October 2008, which led to the inclusion of additional language addressing Platte River's environmental commitment. The updated agreements with language added by Fort Collins were approved for execution by the Fort Collins Council in March 2009. The Loveland Utility Commission expressed concerns about ambiguity in the language added by Fort Collins and recommended approval of the updated agreements in the form previously approved by Estes Park and Longmont. Loveland approved the updated agreements without the Fort Collins revisions in June 2009. Modified environmental commitment language was developed by Platte River in an attempt to resolve this impasse. In an attempt to address the ambiguity noted by Loveland, the revised language provides a definition for the term "good stewardship of the environment." The phrase "good stewardship of the environment" now appears in both the Organic Contract and the draft Power Supply Agreement and requires Platte River to"consider environmental factors as an integral component of planning, design, construction and operational decisions." During the September 2009 Board meeting, Mayor Hutchinson reported that the modified language suggested by Platte River had been reviewed by Fort Collins' attorneys and staff and it was their opinion that the language preserved the intent of the initial Fort Collins revisions, but that one Councilmember disagreed with this assessment. No formal action has been scheduled by Fort Collins. The modified language seemed agreeable to the Board representatives from the other Municipalities, but would probably require new approval processes in the three other Municipalities: Accordingly, Board members asked Mayor Hutchinson if Fort Collins was willing to reconsider adopting the updated agreements in the form that has been adopted by the other Municipalities (as originally presented to Fort Collins in October 2008). ATTACHMENTS 1. Amended and Restated Organic Contract Establishing Platte River Power Authority as a Separate Governmental Entity 2. PRPA Resolution 9-75 3. Longmont Resolution No. 40 Series 1974 4. PRPA Resolution 37-74 5. Fort Collins Resolution 1974-087, dated October 3, 1974 6. PRPA Resolution 41-74 7. PRPA Memorandum dated October 22, 1976 8. PRPA Resolution 45-74 9. PRPA Resolution 56-74 10. PRPA 2009 General Legislative and Environmental Policy Statement December 8, 2009 Page 9 J 11. Organic Contract and Power Supply Contract as approved by Longmont,Loveland and Estes Park 12. Organic Contract and Power Supply Contract that were approved by the Fort Collins City Council with modifications suggested by PRPA 13. PowerPoint presentation ATTACHMENT 1 AMENDED AND RSSCATM ORCANIC CONTRACT ESTAB ISMO;MATTE RPM POWER AUTHORITY AS A SEPARATE GOVERNMENTAL'ENTITY THIS CONTRACT,originally made and entered into as of June 17,m,and amended February 14,1977,and July 27,1978,and anhrnded and restated the 31i day of March 19M,and as amended and restated this id day of July,1998,by the parties to this Contract which are. TOWN OF ESTES PARK,COLORADO,a municipal corporation of the State of Colorado ("Estes Parkj.CITY OF FORT COLLINS,COLORADO,a municipal corporation of the State of Colorado("Fort ColWhs"),CITY OF LONGMONT,COLORADO,a municipal corporation of the State of Colorado("Longmont),and CITY OF LOVELAND,COLORADO,a municipal corporation of the State of Coknado("Loveland"), When speciBdty is not required,the municipal corporatimw which are parties hereto will hereinafter be individually seferred to as 'Municipality'and collectively as"Municipalities" WITNESSETH: WHEREAS,Estes Park owns and operates a municipal electric system which supplies electric power and energy at retail to users located within the town limits of Estes Park and the adjacent service area of the Estes Park electric systems;and WHEREAS,Fart Collins owns and operates a mwdcipal electric system which supplies electric power and energy at retail to users located within the city ihnits of Fort Collins;and WHEREAS,LorngmontOwns and operates a municipal electric system which supples electric power and energy at retail to users located within the city limits of Longmont and the adjamt service area of the Longmont electric system;and '1 ATTACHMENT I 2 WHEREAS,Loveland owns and operates a municipal electric system which supplies electric power and energy at retail to users located within the city limits of Loveland and the adjacent service area of the Loveland electric system;and WHEREAS,the Municipalities on June 17,1975,established,pursuant to the provisions of C.R.S.V 973)g 294-204,as then enacted,the Platte River Power Authority(the"Authority'), as a separate govemmentai entity and successor to a nonprofit corporation,to be the hnstrumemtaliry of the Municipalities and as such successor,to continue to supply their wholesale electric power and energy requirements;and WFiEREA.S,the Municipalities now wish t o contract with one another to establish,' pursuant to the provisions of C.R.S.Section 29-1-203,the Authority as a separate legal entity and multipurpose inteegoventmental authority to provide designated functions,services,or facilities(i)lawfully audwrized to any combination of two or more of the Municipalities and(ii) which function service,or facility constitutes an"enterpriar as defined in Section 2(d)of Article X Section 20 of the Colorado Cmtstitutiwu and WHEREAS,the advent of wholesale competition and the anticipation of retail wheeling and competiUm in the electric utility industry have created the need to(i)enhance brand identification and customer loyalty by broadening the types of services offered to elect& customers of the Municipalities and(it)permit the Authority to sell at retail electric and other services,and the Municipalities wish to clarify that the Organic Contract authorizes the Authority to engage in a broad range of such related services wbkh are incidental to or supportive of the Municipalities'confirmed abdity to provide electric service to thek cusromen; on a competitive basis and to engage in retail sales of electric power and energy;and WHEREAS,the Municipalities now wish to further amend the Organic Contract,to extend its term and to restate the amended provisions thereof in a single updated documemt ATTACHMENT 1 3 NOW,THEREFORE,the Municipalities do hereby amend and restate the Organic Contract,originally executed June 17,1975,and subsequently amended,so that as hereby amended and restated it provides,and the Municipalities do agree,as follows: 1.0 EFFECIiVE DATR: This Contract,as hereby amended and restated,shall become effective when it has been duly executed and delivered on behalf of all the Municipalities. 2.0 WrABUSHMEM Ul PLATTE R1YER POW RR AUTHORITY: As of june 17, 1975,the Municipalities establish a separate governmental entity,to be known as Platte River Power Authority(the"Authority~),to be used by the Municipalities to effect the 1 development of L&,ctdc energy resources and the production and transmission of J cWak energy in whole or in part for the benefit of the inhabitants of the Municipalities. As of July 1.19GA,the Municipalities also establish the Authority as a separate governmental entity and multi-purpose intergovernmental authority to provide additional designated function a,services,or facilities(i)lawfully authorized to any combination of two or more of the Municipalities and(u?which function,service,or facilities constitutes an"enterprise as defined In Section 2(d)of Article X,Section 20 of the Colorado Constitution. 2.1 PURPOSE4; The purposes of the Authority are to conduct its business and affairs for the benefit of the MunicipsEtles and their inhabitants- (A)to provide the electric power and energy requirements of the Municipalities and the retail customers within the Municipalities,(0)to Engage in business activities related to the provision of ATTACHMENT 1 4 electric power and energy services which the Board determines are likely to enhance the competitive position of the Authority or the Municipalities,and(C)to,provide any additional designated function,service,or facility G)lawfully authorized to any combination of two or more of the Municipalities and(ir)each of which constitutes an "enterprise"as defined in Section 2(d)of Article X,Section 20 of the Colorado Constitution. A particular funtion,service,or facility shall be treated as designated as a separate purpose under clause(C)of the previous sentence only upon receipt by each Municipality which is designating the function service,or facility to also be performed by the Authority of(a)a resolution adopted by unanimous vote of the Board of Directors of the Authority designating the huction,service,or facility as a purpose to also be jointly exercised by the designating Municipalities through the Authority and(b) opinions of cotmsel to each Municipality which is designating the function,service or facllity to also be perform by the Audwrity setting forth the extern to which the designated function,service or facility is lawfully authorized such dempathug Municipality and(c)an opinion of the Authority's bond counsel to the effect that the designated function,service,or facility constitutes an"enterprise"as defined in Section 2(d)of Aflslc X,Section 20 of tlw Colorado Constitution 2.2 EUNMOM,SERVICES.OR FACITMIS: The functions,services,or facilities to be provided by the Authority are: (A)the supplying of the electric power and energy neyuhvnwnts of the Municipalities and retail customers within the Municipalities and (B)the provision of any additional hmctioa,service,or facility(i)lawfully authorized to any combination of two or more of the Municipalities and(it)which constitutes an "enterprise"as defined in Section 2(d)of Article X,Section 20 of the Colorado ATTACHMENT 1 Constitution which has been designated pursuant to the last sentence of Section 2.1 hereof,by- (i) Acquiring,constructing,owning,reconstructing,unproven& rehabilitating,repairing,Operating and maintaining ekctric generating plants,bansmissicm systems and related facilities.or interests therein,for the purpose of producing,transmitting and delivering to the Municipalities,electric power and energy to the extent of their requirements; (u) Purchasing electric power and energy from electric utilities and other producers of energy,as required to supply the Municipalities and perform its other obligations; (i ) Selling at wholesale to the Municipalities all of the electric power and energy produced or purchased by the Authority which the Municipalities require; (iv) Selling,exchanging and otherwise disposing of,under the most economically advantageous terms and conditions obtainable,any and all "1 surplus power and energy which the Authority awrm produces or Jpurchases, (v) Developing electric energy resources and producing and transmitting electric am"in whole or in part for the benefit of the inhabitants of Municipalities; (vi) Acquiring,constructing;owning,pig,sew&egg,or otherwise disposing of,reco nstrcctirt&u nproving,rehabilitating, repairing,operating,and maintaining assets,infrastructure,plants, l systems,and related facilities or interests therein; (vlij Developing products,services,infrastructure,and resources related to such function,service,or facility for delivery to appropriate markets in whole or in part for the benefit of the inhabitants of the Mwlipaiilies; and (vim') On rescission or termination of this Contract to vest in the Municipalities all right;title and interest of the Authority in or to all of its property and assets. 23 BOARD OF D[RECIURS; The governing body of the Authority shall be a Board of Directors in which all legislative power of the Authority is vested. ATTACHMENT 1 6 23.1 NUMBER Thenumber of Directors shall be eight(8). 231 SELECTION: Each Municipality shall be represented by two(2)members on the Board of Directors of the Authority,who shall be designated or appointed as follows: The Mayor of each of the Municipalities is hereby designated and shall serve as a member of the Board of Directors of the Authority contemporaneously with service as Mayor;provided,however,that any Mayor may designate some other member of the governing board of such Municipality to serve as a Director of the Authority in place of the Mayor. (fi) ARRgjnted Directrns The governing body of each of the Municipalities shall appoint one additional member to the Board of Directors. Appointed Directors shall be selected for judgment experience,and expertise which makes them particularly qualified to serve as the Directm of an electric utility. 2.3.3 Tom: The tens of office of the Directors of the Authority shall be as follows (i) Mayors The Mayor of each%funicipality,or the nmmber of the MrmidpaliWs govemtng board designated by the Mayor,shall serve as a Dirce r of the ATTACHMENT 1 7 Authority for the same pedal of time that the Mayor serves as Mayor of that Municipality. (li) Appointed Directors: The term of the Appointed Director for Estes Park shall expire on December 31,1983,the term of the Appointed Director for Fort Collins stall expire on December 31,19M,the term of the Appointed Director for Longmont shall expire on December 31,1982,and the term of the Appointed Director for Loveland shall expire on December 32,1931. Each successor shall be appointed for a term of four years from the date of the expiration of the term for which the predecessor was appointed 11 and until the successor is appointed and has qualified. 2.14 REMOVAL Any Director appointed by the governing board of a Municipality may be removed at any time by such governing board,with or without cause. A Mayor will be autnumticaliy removed as a Director if removed from the office of Mayor,and a member of the Munidpalitps governing board designated to serve in place of a Mayor may be removed at any time by the Mayor,with or without cause. 2.3.5 VACANC A vacancy occuautg in the directorship of an Appointed Director, whether such vacancy be the result of resignation,death,removal or disability,Shan be filled by the appointment of a successor appointed Director by the governing body of the Municipality which appointed the Director whose office has become vacant. !n the case of a vacancy in the directorship of a Mayor or his designee from any Municipality, ATTACHMENT 1 8 the vacancy shall be filled by the new Mayor or the Mayor's designation of some other member of the governing board of that Municipality. 2.3.6 COMPENSATION: Directors shall not receive compensation for their services. but the Board of Directors may,by resolution,provide for reimbursement to Directors of their actual expenses for attendance at meetings of the Board of Directors and for expenses otherwise Incurred on behalf of the Authority. 2.3.7 ANNUAL MEETINGS:, An annual meeting of the Board of Directors shed be held within the first 12D days in each year at such place in Fort Collins,Colorado,as shall be designated in the notice of the meeting,to elect officers,to pass upon reports for the preceding fiscal year,and to transact such other business as may come before the meeting. If the day fixed for the annual meeting shall fall on a legal holiday,the annual meeting shall be held on the next succeeding business day. Failure to hold the annual meeting at a designated time,or failure to hold the annual meeting in any year,shall not cause a forfeiture or dissolution or otherwise affect the Authority. 2.3.8 REGULAR MEETING&: The Board of Directors may from time to time provide, by unanimous resolution or by unwatous co"ent of all Directors,for the time and place for the holding of any regular meetings without notice to Directors other than such resolution,except in the case of consent,when notice shall be given by the Secretary as hereinafter provided. ATTACHMENT 1 9 23.9 SPECIAL ME817NC5 spacial meetings of the Board of Directors may be called by the Chairman or any Director and it shall thereupon be the duty of the Secretary to cause notice of such meeting to be given as hereinafter provided. Special meetings of the Board of Directors shall be held at such time and place within the State of Colorado as shall be fixed by the Chairman or the Director calling the meeting. 23.10 N(YlICE OF MF.E7QIGS: Written notice of the annual or of any special meeting of the Board of Directors shall be delivered to each Director notless than seven(7),nor more than thirty-five(35),days before the date fixed for such meeting,either personally or by mail,by or at the direction of the Secretary,or,upon his default,by the person l calling the meeting. If mailed,such notice shall be deemed to be delivered when deposited in the United states mail addressed to the Director at his address as it appears on the records of the Authority,with postage thereon prepaid. 23.11 WAIVER OF NOTICE Whenever any notice in required to be given to any Dicecyur of the Authority under the provisions of law or this Contract,a waiver thereof in writing signed by such Director,whether before or after the time stated therein,shall be equivalent to the giving of such notice.Attendance of a Director at any meeting of the Board of Directors shall constitute a waiver by such Director of notice of such meeting except when such Director attends such meeting for the expr ems purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 23.12 QUORUM: A majority of the number of Directors then in office shall constitute a quorum for the transactiat of business:provided that,if less than a majority of the l _ ATTACHMENT I 10 Directors then In office is present at a meeting,a majority of the Directors present may adjourn the meeting from time to time,and,provided further,that the Secretary shall notify any absent Directors of the time and plaice of such adjourned meeting. The act of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. 2.3.13 VOTF.IN CASE OF A DEADIACK: In the event the Board of Directors,at a meeting at which a quorum is present,is deadlocked and unable to obtain a majority vote of the Directors present concerning a matter being considered for action,any Director may require a"Weighted Vote." A"Weighted Vote"shalt then be taken with each Diremes vote being given the proportion which: (i) the dollar amount of electric power and energy purdmsed from the Authority during the twelve-month period ending with the close of the billing period for the month two months prior to the month of the deadlocked meeting and paid for by the Municipality appointing such Director bears to (ii) the dollar amoant of all electric power and energy purchased from the Authority and paid for by the Municipalities during said twelvwmnnth period. The act of a majority of the"Weighted Vote"shall be the act of the Board of Directors. 23.14 Di The duties of the Board of Directors shag be: (i) To govern the business and affairs of the Authority. WQ To exercise all powers of the Authority. (iii) To comply with the provisions of parts 1,5,and 6 of Article I of Title 29 of CRS (1973). ATTACHMENT 1 / I1 (iv) To adopt a fiscal resolution,which complies with statutory and other restrictions imposed by law on the affairs of the Authority,to govern the financial transactions of the Authority,including the rwdpk custody,and disbursement of its funds,securities,and other assets,and to provide for the services of a firm of independent certified public accountants to examine,at least annually,the financial records and accounts of the Authority and to report thereupon to the Board of Directors. G (v) To keep minutes of its proceedings. 2.4 OFFICE The officers of the Authority shall be a Chafraran,Vice Chairman, Secretary,Treasurer,Cenew Manager and such other officers and assistant officers as maybe authorized by the Board of Directors from time to time to perform such duties as ouy be approved by the Board of Di lectors. The Chairman and Vice Chairman shall be members of the Board of Directors,but other officers of the Authority need not be l members of the Board of Directors. 2.4.1 EI.EMON OF OFFfCERS AND TEMOOP OFFICE. At each annual meeting of the Board of Directors,the members of the Board of Directors shag elect officers who , shall serve as such officers of the Authority until the next Succeeding annual meeting of the Board of Directors and until their successors are elected and qualified. U the election of officers shall not be held at such meeting,swh election shall be held as soon thereafter as may be convenient Vacancies or new offices may be filled at any meeting of the Board of Directors, 2-4.2 REMCriiA Any officer or agent elected or appointed by the Board of Directors may be removed by the Board of Directors,with or withamt cause,whenever in its judgment the best interests of the Authority will be served thweby. ATTACHMENT 1 U 2.43 DUTIES OF OFFICERS In addition to duties designated by the Board of Directors,the duties of the officers shalt include the following 2.43.1 The Chairman shall preside at all meetings of the Board of Directors and,except as otherwise delegated by the Board of Directors,shall execute all legal inshvnie nts of the Authority. When and while a vacancy exists in the office of General Manager,the Chairman shall act as the principal executive officer of the Authority,and shall perform such other duties as the Board of Directors may prescribe from time to time. 2.43.2 Vice Chairman The Vice Chairman shall,in the absence of the Chairman,or in the evert of his inability or refusal to act,perform the duties of the Chairman and when so acting shall have all the powers of and be subject to all the restrictions upon the Chairman. The Vice ChaUanan shall also perform such other duties as may be prescribed by the hoard of Directors from time to time. 2.43-1 revery The Secretary shall maintain the official records of the Authority,including all resolutions and regulations approved by the Board of Directors,the mirtates of meetings of the Board of Directors,and a register of the names and addresses of Directors and offimrs,and shall issue notice of meetings,attest and affix the ATTACHMENT 1. 13 corporate seal to all documents of the Authority,and shalt perform such other duties as the Board of Directors may prescribe from time to time 2.4.3.4 Treasurer The Treasurer shall serve as financial officer of the Authority and shall,pursuant to the fiscal resolution adopted by the Board of Directors goversdng the financial transactions of the Authority and the restrictions imposed by law,be responsible for the receipt;custody,investment,and disbursement of the Authority's funds and securities and for duties incident to the office of Treasurer,and:shall perform other duties as the Board of Directors may prescribe from time to time. Z4.3.5 General Manager The Cenral Manager Mall be the principal executive officer of the Authority with fuU responsibility for the planning,operations,and administrative affairs of the-Authority,and the coordination thereof,pursuant to policies and programs approved by the Board of Directors from time to tithe,and shall be the agent far service of process on the Authority. 2AA BONDS OF The Treasurer and any other officer or agent of the Authority charged with responsibility for the custody of any of its funds or property shall give bond in such sum and with such surety as the Board.of Directors shall determine. The Board of Directors in its discretion may also require any other officer, agent, or employee of the Authority to give bond in such amount and with such surety ATTACHMENT 1 14 as it shall debermau. The coat of such bond shall be an expense payable by the Authority. 25 INDEMNIFICATION OF OFFICERS AND DIRECTORS Each Director and officer of the Authority,whether or not then in office,and his personal representatives, shall be indemnified by the,Authority against all mats and expenses actually and necessarily incurred by him in connection with the defense of any action,suit,or proceeding in which he may be involved or to wbich he may be made a party by reason of his being or having been such Director or officer,except in relation to matters as to which he shall be finally adjudged in such action,suit or proceeding to be liable for willful or wanton negligence or misconduct in the performance of duty. Such costs and expenses shall include amounts reasonably paid in settlement for the purpose of curtailing the costs of litigation,but only if the Authority is advised in writing by its counsel that in his opinion the person indemnifted did not commit such willful or wanton negligence or misconduct. The foregoing right of indemnification shall not be exclusive of other righb to which he may be entity as a matees of law or by agreement. 2.6 TERM OF CONTRACT: This Contract shall continue in force and effect until December 31,2W,and until thereafter terminated by any Municipality following not less than six(6)months written notice to the other Municipalities of its intention to terminate;provided however.that this Contract may be amended,modified,rescinded, or terminated at arty time by a written document approved and executed by each and every Municipality which is a party to this Contract;and,VMided u�tha,ho that this Contract may not in any event be rescinded or terminated so long as the ATTACHMENT IS Authority has bonds,notes,or other obligations outstanding,unless provision for full payment of such obligations,by escrow or otherwise,has been made pursuant to the terms of such obligations. 2.7 ASSM AND PROPIiRTIES: All assets and properties of the Authority shall be held in trust for the purposes herein mentioned,including the payment of the liabilities of the Authority. a IS DMMIBIMON OF ASSM UPON TERMINATION: in the event of the rescission or termination of this Contract and the dissolution of the Authority,all of its assets shall bnmediately vest in the Municipalities. The assets of the Authority y) conveyed to each Municipality shall be that proportion which(i)the total dollar amount of electric power and energy purchased and paid for by such Mwdcipality,from the Authority and its predecessor during their corporate existenm,bears to(ii)the total dollar amount of all electric power and energy purchased and paid for by all of the Municipalities,from the Authority and its predecessor during their corporate a isterwe. 2.9 SEAL: The corporate seat of the Authority shad be in the form of a circle and have inscribed thereon the name of the Authority and the words"Corporate Seal," together with such insignia,if any,as the hoard of Directors may authodze. 110 CONTRACTS Except as otherwise provided by law,the Board of Directors may authorize any officer or officers,agent or agents,to enter into any contract,or execute and deliver any instrument in the name and on behalf of the Authority. ATTACHMENT lb 2 11 CHEC DRA D OTM FINANCIAL PQCUM NTS All cracks, drafts,or other orders for payment of money and all notes,bonds,or other evidences of indebtedness issued in the name of the Authority shall be signed by such officer or officers,agent or agents,employee or employees of the Authority and in such manner as shall from time to time be determined by resolution of the Board of Directors. 2.12 DEPOT_ All funds of the Authority shall be deposited from time to time to its credit,and pursuant to law,in such bank or banks as the Board of Directors may select. 2.13 FLSCAL YEAR:The fiscal year of the Authority shall be the calendar year. 2.14 PRINCFPAL PLACE OF BUSINESS: The principal place of business of the Authority shall be in Fort Collins,Colorado. Annually,on or before the first day of February of each year,and within thirty(30 days following any change,the Authority shall file with the Division of Local Government the name of the agent for service of process on the Authority and the address of its principal Place of business. 3.0 GENERAL POW M The general powers of the Authority shall include the following powers 3.1 ELECTRIC ENERGY: To develop electric energy resources and produce, pun hale,and transmit electric energy,in whole or in part,for the benefit of the inhabitants of the Municipalities. ATTACHMENT 1 . J t7 32 CQNfRAC15 To make and enter contracts of every kind with the MunkIpalitles,the United Staten any state or political subdivision thereof,and any individual,firm association,partnership,corporation or any other organization of any kind 3.3 AGENTS AND EMPLOYEES To employ agents and employees. 3.4 PACILiff FS: To acquire,construct,manage,maintain,and operate electric energy facilities,works,'and improvements and any interests thereint,including,without limitation,to acquire,construct,reconshuM improve,and rehabilitate,repair,operate, land maintain(separately or jointly)generating plants,tnmsmission systems and related - ! faces for the purpose of delivering electrical power and energy generated thereby to the Municipalities,and any mine,well,pipeline,plant,structure,or uther facillty for the development,production,manufacture,storage,fabrication,or processing of fossil or rmdear fuel of any kinif for use,in whole or in major part,in any'of such generatlng plants,and any railroad cars,tractcage;pipes,equipment and any structures or facilities of any End used or useful in the transporting of fuel to any of such generating plants, and to sell,deliver,exchange,or otherwise dispose of the power and energy generated by said plants,and any of the waste or by-products therefwm,and to purchase,lease,or otherwise acquire and equip,mamtan%operate,sell,assign,convey,lease,mortgage, pledge,and otherwise dispose of electrical generating plants,transmission systems and related facilities,together with all lands,buildhW,equipment,and all other real or pen;onal property,tangible or intangible,necessary or incidental thereto. ATTACHMENT 1 t . 48 ' 3S PRO1'FRTY: To acquire,hold,lease(as lessor or lemme),sell,or otherwise dispose of any real or personal property,commodity,and service including,without limitation,to buy,lease,construct,appropriate,contract for,invest in,and otherwise acquire.and to own,hold,maintain,equip,operate,manage,improve,develop, mortgage,and deal in and with.and to sell,lease,exchange,transfer,convey and otherwise dit;pose of and to mortgage,pledge,hypothecate and otherwise encumber real and pers;nal property of every kind,tangible and intangible. 3.6 CONDEMNATION: To condemn property for public use,if such property is not owned by any public utility and devoted to such public use pursuant to state authority. 3.7 DEBT: To incur debts,liabilities,or obligations and to borrow money and,from time to time.to make,accept,endorse,execute,issue,and deliver bonds,debentures, promissory notes.bills of exchange,and other obligations of the Authority for monies borrowed or in payment for-property acquired or for any of the other purposes of the Authority,and to secure the payment of any such obligates by mortgage,pledge, deed,indenture,agreement,or other collateral instrument,or by other lien upon, assignment of,or a in regard to,all or any part of the properties,rights,assets, contracts,eaSenlefft revenues,and privileges of the Authority wherever situated. 3.8 LITIGATION: To sue and be sued tm its own name. 3.9 SEAL To have and use a corporate seal. ATTACHMENT 1 19 3.10 RATES To fix,maintain,and revise fees,rater,and charges for functions, services,or facilities provided by the Authority. 3.11 REGULATIONS To adopt:by resolution,regulations respecting the exercise of its power and the carrying our of its purposes. 3.12 AGHTT15c To do and perform any acts and things authorized by this section under,through,or by means of an agent,fiduciary,or independent contractor of the United States or any state or political subdivision thetenf. 3.13 fO1NT OWIdERSHII' To own,operate,and maintain real and personal l property,and facilities in common with others,as permitted by law,and to conduct joint,partnership,cooperative,or other operations with others and to exercise all of the powers granted in this Contract in joint partnership or cooperative efforts and operations with others. 3.14 OTHER To exercise any other powers which are essential,necessary, incidental,convenient,or conducive to providing the wholesale electric power and energy requirements of the Municipalities,as well as to accomplishing the purposes, functions,service,and facilities set forth in Sections 2.0,2.1,and 2.2 of this Organic Contract 4.0 P�( I KCAL SU0I7MSION: The Authority shall he a political subdivision and a public corporation of the State of Colorado separate from the Municipalities. 11 shall ATTACHMENT ) 20 have the duties,privileges,imnramitiea,rights,liabilities,and disabilities of a public body politic and corporate. 5.0 REVENUE BONTM The Authority is authorized to issue bands,notes,or other obligations segued by its electric revenues pursuant to the temps,conditions and authorization ined,in1973C.R.S.§ 29-1-204(7). 6.0 DEBT NOT THAT OF MtWCIPA1,lTIES The bonds,notes,and other obligations of the Autixhrity shall not be the debts,liabilities,or obligations of the Municipalities. 7A AUTHORITY IS SUCCESSOR The Authority is the successor to the Platte River Power Aothcdty,a non-profit c orp®tion of the State of Colorado,whose corporate existence has been termhuted,and as such successor the Authority shall hold aU rights, interests,privileges,and properties of,and shag assume all obligations of,such nun. profit corporation. 8.0 FILING OF CONTRACT: A copy of this Contract shag be bled with the Division of Local Government of the State of Cnlorado within ten(10)days after its execution by the Municipalities. 9.0 NOTICES: Any formal notice,demand,or request provided for in this Contract shall be in writing and shag be deemed properly served,given,or made if delivered in ATTACHMENT 1 21 person or seat by registered or certified mail,postage prepaid,to the persons specified below: Town of Estes Park Colorado c/o Assistant Town Administrator P.O.Box 1200 Estes Park,Colorado 80517 City of Fort Collins,Colorado c/o Utilities General Manager P.O. Box 580 Fort Collins,Colorado &622 City of Longmont,Colorado c/o Director of Electric and Telecomnumicatiuns Utilities 110D South Sherman l Longmont,Colorado 80601 _J City of Loveland,Colorado c/o Water and Power Director, 200 North Wilson Loveland,Colorado 80537 10.0 SEVERAB[L11Y: In the event that any of the terms,covenants,or conditions of this Contract or their application shall be held invalid as to any person,corporation,or cmmmstance by any court having jurisdiction,the remainder of this Contract and the application and effect of its terms,covenants,or conditions to such persons,corporation, or cim rnauLnees shall not be affected thereby. 11.0 DUPLICATE ORION ALS: This contract may be executed in several counterparts,each of which will be an original but all of which together shall constitute one and the same instrument. ATTACHMENT 1 n IN WrfNM WHEREOF,the Municipalities have caused this Contract,as amended,to be executed as of the 1a day of July,199& TOWN OF PARK,COLORADO Fk-vBY: • yor S C 'k 99��_S 8 40 CITY OF PORT COJd ;90L.ORAADDO/" hu ORyM �' _ rt CITY OF LONGMONT,COLORADO Mayor City Clerk b .cA CITY OF LOYMAND,C aDRADO I n n Illy- �i1i.,SL4. 00 Ry Clerk ATTACHMENT 2 RESOLUTION NO. 9 -75 WHEREAS, Platte River Power Authority ("Platte River") is a non-profit corporation and an agency and instrumentality of the four municipalities of Estes Park, Fort Collins, Longmont, and Loveland, all of which are political subdivisions of the State of Colorado; WHEREAS, all of the assets of Platte River will , in accordance with Article VII of its by-laws, vest immediately in said municipalities .upon dissolution of Platte River; WHEREAS, as long as Platte River is a non-profit corporation, any net income from Platte River's operations, and the interest received by the holders of its bonds, may be exempt from Federal taxation only by a separate ruling of the U. S. Internal Revenue Service ("IRS") as to each individual Platte River project; and WHEREAS, separate IRS rulings for each individual project of Platte River would not be required if Platte River were to be reconstituted as a separate governmental entity under Colorado law by contract among its four municipalities or by statute; NOW THEREFORE BE IT RESOLVED by the Board of Directors of Platte River that: (1) The General Manager is hereby authorized and directed (a) to cause to be drafted appropriate legislation for introduction in the Colorado General Assembly which will establish, or will permit the four cities supplied with electric energy by Platte River by contract to establish, Platte River as a separate governmental entity in the state of Colorado, in a manner which will preserve for Platte River essentially the same powers and functions it now has as a non-profit corporation and (b) to present such proposed legislation to this Board for review. (2) The General Manager is further authorized and directed to testify, and to cause members of Platte River's staff and its counsel to testify, ATTACHMENT 2 -2- and otherwise to communicate lawfully with members of Colorado's General Assembly, all as may be necessary or desirable in the cir- cumstances to obtain passage of such legislation by the Colorado General Assembly. Adopted: February 19, 1975 Vote: 4-0 J ( ( ATTACHMENT 3 RESOLUTION TO WHOM IT MAY CONCERN: Jr This is to certify that the following resolution was adopted by the• Ci.ty Council of the City of Longmont, Colorado at their adjourndd' meeting held September 17, 1974; RESOLUTION NO. 40 SERIES 1974 BE IT RESOLVED, that the following suggested procedures be re- commended to the Board of Directors•of Platte River Power Authority to be incorporated in the bj-laws of the Authority: (1) No budget shall be approved without prior ✓ assent of a majority of the City Councils of . the participants. (2) No bonded debt shall be entered into without the question. being submitted to the Council of each of the participants and passed by a majority of the 'Councils of at least three (3) of the participating cities. (3� Each Board member shall have authorization from their respective Councils prior to voting on material matters considered by the Board. Very truly yours, City of Longmont P. K. Spangler Deputy Director of Finance ATTACHMENT 4 RESOLUTION 37-74 WHEREAS, the City Council of the City of Longmont adopted Resolution No. 40, Series 1974 on September 17, 1974, a copy of said resolution being attached hereto and incorporated herein by this reference: WHEREAS, the Board of Directors of Platte River Power Authority ("Platte River") having considered said resolution, reviewed the operating procedures of Platte River and confirmed that the procedure heretofore followed and as reflected by the minutes of Platte River has been as follows: (1 ) No annual budget has been approved by this Board without the proposed budget being submitted to the Platte River Directors more than thirty (30) days prior to the regular meeting at which a vote is taken thereon nor without the proposed budget being discussed at one regular meeting of the Board of Directors with the vote thereon being deferred to the next regular meeting of the Board of Directors one month later. Amend- ments to the budget have been made as needed according to the circum- stances, based upon the exercise of ,judgment by the Directors. (2) While no bonded debt has yet been incurred by Platte River, the interim borrowings which have been made are pursuant to Loan Agreements approved by the Board of Directors pursuant to the same procedure that is followed with respect to Platte River's annual budget. (3) Platte River has not required proof from the individual Board members that they have been previously authorized to cast their vote on any specific matter. WHEREAS, to impose the requirement of prior authorization upon the exercise of judgment by the Directors, or by any individual Director, would reduce the effective- ness of Platte River as a corporate organization and thereby weaken its ability to respond to changing situations and emergencies, and to require prior authorization ATTACHMENT 4 -2, on all material matters would leave only routine or trivial matters upon which a Director would be asked to exercise independent judgment; and, WHEREAS, the Board of Directors is the agent and servant of the municipal participants in Platte River Power Authority serving at their pleasure and direction and would appreciate guidance from the respective participating municipalities as to their wishes and direction as to the procedure to be followed by Platte River, NOW THEREFORE BE IT RESOLVED by the Board of Directors of Platte River Power Authority that the Directors of this Company review this matter with their respective city councils and seek their guidance and direction as to the procedure to be followed by Platte River Power Authority. y Adopted: September 18, 1974 Vote: 4-0 r ATTACHMENT 5 1 RESOLUTION 09 OF THE COUNCIL OF.,THE CITY OF FORT COLLINS RELATING TO THE BY-LAWS OF PLATTE RIVER POWER AUTHORITY AND ESPRESSING THE CONFIDENCE OF THE CITY OF FORT COLLINS IN PLATTE RIVER POWER AUTHORITY UNDER ITS PRESENT OPERATING PROCEDURES WHEREAS, Platte River Power Authority is a nonprofit corporation organized by the cities of Fort Collins, Loveland, Longmont and Estes Park, Colorado, for the purpose of delivering electric power and energy to the electric utilities of such cities; and WHEREAS, under the existing by-laws of Platte River Power Authority each such city appoints one member to the Board of Directors of the Authority,, and WHEREAS, under the control of the Board of Directors so selected Platte River Power Authority acts as an independent organization in connection with all matters within its control; and WHEREAS, the City Council of the City of Longmont has by resolution requested changes in the by-laws of Platte River Power Authority, the changes requested being as follows: (1) No budget shall be approved without prior assent of a majority of the City Councils of the participants. (2) No bonded debt shall be entered into without the question being submitted to the Council of each of the participants and passed by a majority of the Councils of at least three (3) of the par- ticipating cities. (3) Each Board member shall have authorization from their respective Councils prior to voting on material matters considered by the Board. and WHEREAS, the Board of Directors of Platte River Power Authority has by resolution requested that the other participating cities consider this matter and advise the Board of Directors of Platte River Power Authority as to their wishes on this matter; and WHEREAS, the City Council has considered the issues raised by the resolution of the Longmont City Council and the relations of the City ATTACHMENT 5 of Fort Collins with Platte River Power Authority and the City Council desires to express its confidence in the present organization and method of operation of the`Platte River Power Authority. NOWs THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS: 1. The Council of the City of Fort Collins hereby expresses its confidence in the Board of Directors and the method of operation of the Platte River Power Authority under the current by-laws of said Authority: 2. The Council of the City of Fort Collins hereby requests that no substantial changes be made at this time in the by-laws of Platte River Power Authority, and more specifically that its prior approval not be required before: adoption of a budget or before the incurring of debt by the Authority and that no specific authorization from the City Council be required in connection with the vote of its representative to the Board of Directors of Platte River Power Authority. Passed and adopted at a regular meeting of the City Council held this 3rd day of October, A.D. 1974. ATTEST:, City Clerk -2- ATTACHMENT 6 RESOLUTION 41 -74 WHEREAS, in response to the request of the City Council of the City of Longmont ("Longmont") as set forth in Longmont Resolution No. 40, Series 1974, Platte River Power Authority ("Platte River") asked its directors to review the suggestions of Longmont with their respective city councils and seek their guidance and direction; and also asked its advisors for their comments; and WHEREAS, the reactions of the municipal customers of Platte River varied with Fort Collins and Estes Park expressing satisfaction with the present pro- cedure and recommending that no change in procedure be inj-tiated and with Loveland expressing support for the concept of prior city council approval for budgets and bonded debt of Platte River; and WHEREAS, as set forth in their attached letter which is incorporated here- in by this reference, the financial advisors to Platte River have expressed grave concern that the proposed changes in procedure would jeopardize the ability of Platte River to borrow long term funds in the public market independently of its constituent municipalities and to effectively perform its function on their be- half, thus defeating the purpose for which Platte River was created; and WHEREAS, legal- counsel to Platte River have expressed the opinion that Platte River should be structured as independently as possible to protect against its corporate existence being disregarded by the courts; and WHEREAS, it is the considered judgment of the Board of Directors of Platte River that the implementation of the procedures suggested by Longmont would re- sult in a substantial impairment of the legal status of Platte River and its ability to finance in the public market and otherwise perform its function on behalf of its constituent municipalities , which impairment would tend to defeat the purpose for which Platte River was created. ATTACHMENT 6 NOW THEREFORE BE IT RESOLVED by the Board of Directors of Platte River that no change in the by-laws of Platte River as suggested by Longmont Resolu- tion No. 40, Series 1974 be made, but that each director of Platte River is hereby requested and directed to provide monthly the financial statements and minutes of all Platte River Board meetings to all members of his city council as soon as practicable following his receipt of such material , and that each director of Platte River is further requested and directed to keep his city council informed regarding budget, financial and other material matters affect- ing Platte River so as to discharge faithfully his accountability for the con- duct of Platte River's affairs. Adopted: November 20, 1974 Vote: 4-0 PLATTE RIVER ATTACHMENT 7 POWER AUTHORITY October 22, 1976 To: Board of Directors From: Albert J. Hamilton Subject: Increase in Board 'Memb&t t6:Include Mayors We have discussed informally with each of you the desirability of amending Platte River's Organic Act to, increase the Board of Directors from four to eight members by adding the mayor of each city. This would be in addition to the existing board membership whose members have been chosen to repre- sent each city on the basis of their business Judgment and expertise related to electric utility matters. In our discussions I think all of us have agreed that such a move would be desirable in that it would strengthen Platte River in dealing with problems that are essentially political in nature or have significant political aspects. I have therefore taken the liberty of asking-John Wittemyer to draft an amendment to the Organtc Contract which .formed Platte River to include a provision for constituting the Board on the basis of four mayors and four ( directors appointed by the city councils. Such a draft is attached. The relative voting strength of the individual voting cities would not be affected by this proposed change. The provision for weighted voting in case of a tie vote would still be retained. Each mayor's term on the Board would run concurrently with his term of office as mayor and he would be succeeded on the Board when a new mayor was elected in his city. Since mayors are typically heavily occupied with a variety of responsibilities, the proposed amendment would allow a mayor to designate some other member of his city council to serve as the mayor's voting representative on the Board. As drafted, this provision would cover a specific meeting, or several meetings, or the entire period of the mayor's term on the Board -- whatever was best suited the circumstances of each mayor. We considered one suggestion for a requirement in the amendment that each mayor or director give Platte River's Secretary 24 hours notice in advance of any meeting at which he could not be present, in order to determine whether we had a quorum for that meeting. We passed this suggestion along to John Wittemyer and he has responded to it in his letter of October 20. A copy df that letter is also enclosed. This proposed amendment to the Organic Contract would require (1) approval by Platte River's Board followed by (2) ratification by each of the four city councils. I recommend its adoption and if this is acceptable to the Platte River Board we will proceed to draft an appropriate resolution. ATTACHMENT 8 RESOLUTION NO. 45-76 WHEREAS, the responsibilities of Platte River 'Power Authority ("Platte River") in providing the wholesale electric energy requirements of its con- stituent municipalities have increased in recent years and further increases are expected; and WHEREAS, the careful consideration of energy, environmental , and economic aspects, together with public opinion and policies established by local govern- ments is, and will continue to be, an integral part of Platte River's Board of Directors' policymaking for meeting its responsibilities; and WHEREAS, additional input and viewpoints from publicly elected officials would contribute significantly to policymaking and would strengthen Platte River's relationships with the councils of its constituent municipalities and the governing bodies of other local governments, NOW THEREFORE BE IT RESOLVED by the Board of Directors of Platte River that: (1) The Board of Directors recommends to the Councils of its con- stituent municipalities that the "Organic Contract Establishing Platte River Power Authority as a Separate Governmental Entity" adopted June 17, 1975 be amended to provide for the addition of the mayor of each municipality to the Platte River Board of Directors, all as specified in the proposed amendment attached hereto. (2) Each member of the Platte River Board of Directors shall present the attached proposed amendment to his City Council for that Council 's consideration and action. Adopted: October 27, 1976 Vote: 4-0 • (" C ATTACHMENT.9 RESOLUTION NO. 56 -74 WHEREAS Platte River Power Authority ("Platte River") proposes to issue revenue bonds to finance its share of the Yampa Project and other major capital additions, with the first series of bonds scheduled for issuance and sale during 1975, and, WHEREAS the Board of Directors of Platte River has determined it to be in Platte River's interests to specify staggered terms for its Directors in order to provide continuity of policy direction, specifically reserving to the governing body of a municipality the power of the appointment and removal of its representa- tive Director, and to provide a simple and ,effective means of reaching decisions in the event a tie vote should be cast on matters-before the Platte River Board, and ' WHEREAS the Board desires to provide an equitable and precise means of dis- tributing the assets of Platte River to the participating cities in the event of dissolution and to describe accurately the duties to be performed by its officers and the functions to be delegated to its management, NOW THEREFORE BE IT RESOLVED by the Board of Directors of Platte River that the By-Laws of Platte River be, and hereby are, amended to read in accordance with the document attached hereto and incorporated herein. Adopted: December 18, 1974 Vote: 4-0 t ATTACHMENT 9 BY-LAWS OF PLATTE RIVER POWER AUTHORITY ARTICLE 1 THE MUNICIPALITIES SECTION 1. Municipalities. The Corporation is an agency and instru- mentality of the following political subdivisions of the State of Colorado; the Town of Estes Park, the City of Fort Collins, the City of Longmont, and the City of Loveland. Each such political subdivision is hereinafter referred to as a "Municipality" and all of such political subdivisions are hereinafter collectively referred to*as the "Municipalities." ARTICLE II LIABILITIES OF DIRECTORS AND OFFICERS SECTION 1. No Liability. The private property of the Directors and officers shall be exempt .from execution or other liability for any debts or obligations of the Corporation and no Director or officer shall be liable or responsible for any debts, liabilities or other obligations of the Corpor- ation. ARTICLE III DIRECTORS SECTION 1. General Powers. The business and affairs of the Corporation\ ATTACHMENT 9 -2- shall be managed by a Board of -Directors, which shall exercise all powers of the Corporation. The number of directors shall be equal to the number of . Municipalities. SECTION 2. Election. The governing body of each of the Municipalities shall appoint one member to the Board of Directors. SECTION 3. Term *of office. The four municipally appointed Directors shall , at their regular meeting in December 1974, classify themselves by lot so that their terms shall expire respectively as follows: December 31 , 1975; December 31 , 1976; December 31 , 1977; and, December 31 , 1978. Their successors shall be appointed each for a term of four years from the date of the expiration of the term for which his predecessor was• appointed and until his successor is appointed and has qualified. SECTION 4. Removal .. Directors appointed by the governing board of a municipality may be removed at any time by such governing board. SECTION 5. Vacancies. A vacancy occurring in the Board of Directors, whether such vacancy be the result of resignation, death, removal or disability, shall be filled by the appointment of a successor Director by the governing body of the Municipality that,appointed the Director whose office has become vacant. SECTION 6. Compensation. Directors shall not receive compensation for their services, but the Board of Directors may, by resolution, provide for reimbursement to Directors of their actual expenses for attendance at meetings of the Board of Directors. ARTICLE IV MEETINGS OF DIRECTORS SECTION 1 . Annual Mestin s. An annual meeting of the Board of Directors shall be held on the third Wednesday in April in each year at such place in ATTACHMENT 9 -3- the City of Fort Collins, State of Colorado, as shall be designated in the notice of the meeting, to elect officers, to pass upon reports for the preceding fiscal year, and transact such other business as may come before the meeting. If the day fixed for the annual meeting shall fall on a legal holiday, the annual meeting shall be held on the next succeeding business day. Failure to hold the annual meeting at a designated time, or failure to hold the annual meeting in any year, shall not be a forfeiture or dissolution of the Corporation. SECTION 2. Regular Meetings. The Board of Directors may, from time to time, provide by resolution for the time and place for the holding of any regular meetings without other notice than such resolution. SECTION 3. Special Meetings. Special meetings of the Board of Directors may be called by the President or any Director and it shall thereupon be the duty of the Secretary to cause notice of such meeting to be given as hereinafter provided. Special meetings of the Board of Directors shall be held at the time and place, within or without the State of Colorado, that shall be fixed by the President or the Director calling the meeting. SECTION 4. Notice of Meetings. Written notice of the annual or of any special meeting of the Board of Directors shall be delivered to each Director not less than three (3), nor more than thirty-five (35), days before the date -fixed for such meeting, either personally or, by mail , by or at the direction of the Secretary, or upon his default by the person calling the meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the Director at his address as it appears on the records of the Corporation, with postage thereon prepaid. SECTION 5. Waiver of Notive. Whenever any notice is required to be given to any Director of the Corporation under the provisions of law, the Articles of Incorporation of the Corporation or these By-Laws, a waiver thereof ATTACHMENT 9 in writing signed by such Director, whether before or after the time stated therein, shall be equivalent to the giving of such notice. . Attendance of a Director at any meeting of the Board of Directors shall constitute a waiver by such Director of notice of such meeting except when such Director attends such meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Section 6. Quorum. A majority of the number of Directors then in office shall constitute a quorum for the transaction of business; but in no event shall a quorum consist of less than one-third of the number of Directors fixed in Article III; provided that, if less than a majority of the Directors then in office is present at a meeting, a majority of the Directors present may adjourn the meeting from time to time; and, provided further, that the Secretary shall notify any absent Directors of the time and place of such ad- journed meeting. The act of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. Section 7. Vote in Case of a Deadlock. In the event the Board of Directors is deadlocked and unable to obtain a majority vote of the Directors c present at a meeting at which a quorum is present either in favor of or opposi- tion to a matter being considered by the Board for action, any Director may require a "Weighted Vote". A "Weighted Vote" shall then be taken with each Director's vote being given the proportion which: (a) the dollar amount of electric power and energy purchased from the Corporation during the twelve month period ending with the close of the billing period for the month two months prior to the month of the deadlocked meeting by the Municipality"appointing such - Director bears to (b) the dollar amount of all electric power and energy purchased by the Municipalities from the Corporation during said twelve month period. �' �... ATTACHMENT 9 -5- The act of a majority of the "Weighted Vote" shall be the act of the Board of Directors. SECTION 8. Action by Directors Without a Meeting. Any action re- quired by the Colorado Non-Profit Corporation Act, the Articles of Incorpor- ation of this Corporation or these By-Laws to be taken at a meeting of the Board of Directors, and any action that may be taken at a meeting of the Board of Directors, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the Directors entitled to vote with respect to the subject matter therErof. Such consent shall have the same force and effect as a unanimous vote and may be stated as such in any articles or document filed with the Secretary of State of the State of Colorado under the Colorado Non-Profit Corporation Act. ARTICLE V OFFICERS SECTION 1. Number. The officers of the Corporation shall be a President, Vice President, Secretary, Treasurer and such other officers and assistant officers as may be determined by the Board of Directors from time to time to perform such duties as may be designated by the Board of Directors. The President and Vice .President shall be members of the Board of Directors, but other officers of the Corporation need not be members of the Board of Directors. SECTION 2. Initial Election of Officers. At the first meeting of the Board of Directors, the members of the Board of Directors shall elect a ATTACHMENT -6- President, Vice-President, Secretary and Treasurer, who shall serve as such officers of .the Corporation until the next succeeding annual meeting of the Board of Directors and until their successors are elected. and qualified. SECTION 3. Regular Elections and Term of Office. The officers shall be elected annually by the Board of Directors at the annual meeting of the Board of Directors. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Vacancies or new offices may be filled at any meeting of the Board of A Directors. Each officer shall hold office until the next succeeding annual meeting of the Board of Directors and until his successor is elected and qualified SECTION 4. Removal. Any officer or agent elected or appointed by the Board of Directors may be removed by the Board of Directors whenever in its judgment the best interests of the Corporation will be served thereby. SECTION 5. Duties -of Officers. (a) The President shall preside at all meetings of the Board of Directors and shall execute all legal instruments of the Corporation, except as otherwise expressly delegated by the Board of Directors; and, unless and until the Board of Directors has appointed a General Manager pursuant to Section 6, or while a vacancy exists in that office, -the President shall act as the principal executive officer of the Corporation, and shall pre- form such other duties as the Board of Directors prescribe from time to time. (b) The Vice President shall in the absence of the President, or -in the event of his inability or refusal to act, perform the duties of the President and when so acting shall have all the powers of and be subject to all the re- strictions upon the President. The Vice President shall also perform such other duties as may be prescribed by the Board of Directors from time to time. r_ ATTACHMENT 9 -7- c) The Secretary shall maintain the official records of the Corporation, including all its Articles of Incorporation, By-Laws, the minutes of meetings of the Board of Directors, and a register of the names and addresses of Board members, and shall issue notices of meetings, .attest and affix. the corporate seal to all documents of the Corporation, and perform such other duties as the Board of Directors may prescribe from time to time. (d) The Treasurer shall serve as financial officer of the Corporation and shall , unless and until pursuant to Section 6, the Board of Directors adopts a fiscal resolution governing the financial transactions of the Corporation, be responsible for the receipt, custody; and disbursement of the Corporation's funds and securities and for duties incident to the office of Treasurer, and shall perform other duties as the Board of Directors may prescribe from time to time. SECTION 6. Delegation of' Functions by the Board of Directors. (a) The Board of Directors may appoint a General Manager, who shall serve at its pleasure, to be the principal executive officer of the Corporation, and to undertake full responsibility for the planning, operations and administrative affairs of the Corporation, and the coordination thereof, pursuant to policies and programs approved by the Board of Directors from time to time. (b) The Board of Directors may adopt a fiscal resolution to govern the financial transactions of the Corporation, including the receipt, custody and disbursement of its funds, securities, and other assets, and to provide for the services of a firm of independent certified public accountants to examine, at least annually, the financial records and accounts of the Corporation and to report thereupon to the Board of Directors. C ATTACHMENT 9 -B- SECTION 7. Bonds of Officers. The Treasurer and any other officer or agent of the Corporation charged with responsibility for the custody of any of its funds or property shall give bond in such sum and with such surety as the Board of Directors shall determine. The Board of Directors in its discretion may also require any other officer, agent or employee of the Corporation to give bond in such amount and with such surety as it shall determine. ARTICLE VI NON-PROFIT OPERATION The Corporation shall at all times be operated on a non-profit basis and no dividends or interest (except to the extent of retiring indebtedness) shall be paid or payable by the Corporation, nor shall any •part of the income or profit of the Corporation be distributed to the directors or officers or J ' other private persons. ARTICLE VII DISSOLUTION SECTION 1. Accomplishment of Purpose. The Corporation has been formed to contract 'for the purchase and sale of electrical power and energy and to con- struct, reconstruct, improve, rehabilitate, repair, operate, and maintain elec- trical power and energy generating plants and primary transmission systems. To fulfill its purpose, the Corporation intends to construct said facilities with funds derived from the sale of its bonds or other evidences of indebtedness. After said facilities have been completed and such bonds or other evidences of ATTACHMENT 9 -9- indebtedness shall have been fully paid, the Corporation shall forthwith convey all right, title and interest of the Corporation in its assets to the Municipal- ities. SECTION 2.. Distribution of Assets. Upon dissolution of the Corporation, all the assets of the Corporation shall immediately vest in the Municipalities. ARTICLE VIII SHARES OF MUNICIPALITIES ON DISTRIBUTION At the time of the dissolution of the Corporation and the distribution of assets to the Municipalities pursuant to Article VII of these By-Laws, the pro- portionate interest in the assets of the Corporation conveyed to each Municipal- ity shall be that proportion which the total dollar amount of electric power and energy purchased by such Municipality from the Corporation during its cor- porate existence bears to the total dollar amount of all electric power and energy purchased by the Municipalities from the Corporation during its corporate existence. ARTICLE IX SEAL The Corporate seal of the Corporation shall be in the form of a circle and have inscribed thereon the name of the Corporation and the words "Corporate Seal. " ARTICLE X FINANCIAL TRANSACTIONS SECTION 1. Contracts. Except as otherwise provided in these By-Laws, the Board of Directors may authorize any officer or officers, agent or agents, ATTACHMENT 9 -10- to enter into any contract or execute, and deliver any. instrument in the name and on behalf of the Corporation, and such authority may be general or confined to specific instances. SECTION 2. Checks, Drafts, etc. All checks, drafts or other orders for payment of money, .and all notes, bonds or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, agent or agents, employee or employees of the Corporation and in such manner as shall from time to time be determined by resolution of the Board of Directors. ./ SECTION 3. Deposits. All funds of the Corporation shall be deposited from time to time to the credit of the Corporation in such bank or banks as the Board of Directors may select, provided that any such depositary shall qualify as a depositary for municipal funds under the provisions of the Statutes of the State of Colorado. SECTION 4. Fiscal Year. The fiscal year of the Corporation shall be as determined by the Board of Directors. ARTICLE XI INDEMNIFICATION OF OFFICERS AND DIRECTORS Each Director and officer of the Corporation, whether or not then in office, and his personal representatives, shall be indemnified by the Corpora- tion against all costs and expenses actually and necessarily incurred by him in connection with the defense of any action, suit or proceeding in which he . may be involved or to which he may be made a party by reason of his being or having been such Director or officer, except in relation to matters as to which ( ATTACHMENT 9 -11- he shall be finally adjudged in such action, suit or proceeding to be liable for negligence or misconduct in the performance of duty. Such costs and ex- penses shall include amounts reasonably paid in settlement for the purpose of curtailing the costs of litigation, but only if the Corporation is advised in writing by its counsel that in his opinion the person indemnified did not commit such negligence or misconduct. The foregoing right of indemnification shall not be exclusive of other rights to-which he may be entitled as a matter of law or by agreement. ARTICLE XII MISCELLANEOUS SECTION 1. Rules and Regulations. The Board of Directors shall have power to make and adopt such rules and regulations, not inconsistent with law, the Articles of Incorporation or these By-Laws, as it may deem advisable for the management of the business and affairs of the Corporation. SECTION 2. Accounting System and Minutes. 'The Board of Directors shall cause to be established and maintained, in accordance with generally accepted principles of accounting; an appropriate accounting system. The Board of Direc- tors shall keep minutes of its proceedings. ARTICLE XIII AMENDMENT Except to the extent that the right to amend the By-Laws of the Cor- poration is limited and restricted by resolution of the Corporation, these By- laws may be altered, amended or repealed by the affirmative vote of two-thirds of the Directors present at any regular or special meeting, provided a quorum as provided in these By-Laws be present and provided the notice of such meeting ATTACHMENT 9 -12- shall have contained a copy of the proposed alteration, amendment or repeal ; provided, however, that neither Article VI or Article VII may be amended or rescinded. ATTACHMENT 10 PLATTE RIVER POWER AUTHORITY 2009 GENERAL LEGISLATIVE AND ENVIRONMENTAL POLICY STATEMENT Legislative and Regulatory Policy Statement Platte River's legislative and regulatory efforts support our mission of providing reliable, low cost electricity while mitigating the environmental impacts of power generation Platte River maintains positive relationships with members of Colorado's Congressional delegation, the Governor's office, state departments and offices and the Colorado General Assembly. Coalitions are a cost effective way to increase legislative effectiveness. Platte River works with a variety of local, state, regional, and national coalitions to leverage its advocacy efforts and resources. Platte River responds to federal and state legislative and agency requests for information on issues and provides testimony at hearings. Platte River also monitors state and federal rulemakings, submitting statements during comment periods,meeting with relevant agencies, and coordinating with various coalitions as appropriate. Platte River has also supported the development of programs with agencies to comply with state and federal regulations. EnviromnentaI Policy Statement Platte River supplies reliable, affordable electricity in an environmentally responsible manner to its owner municipalities of Estes Park, Port Collins, Longmont, and Loveland. The Environmental Policy, along with management and staff commitment, is the core of Platte River's Environmental Management System (EMS). Depending on weather and hydrology, approximately 18 percent of the municipalities' electrical energy requirements are met from renewable resources (hydro and wind). Platte River's other generation resources are fueled by coal and natural gas. Platte River uses state-of-the-art air quality control systems at its power generation stations to meet or exceed all applicable environmental laws and regulations. As new legislation and regulations are proposed, Platte River evaluates these on a case-by-case basis. While there is no "one-siz fits-all" approach to environmental policy, Platte River supports environmental improvements in areas where measurable benefits can be realized commensurate with cost. As technology improves and opportunities arise, Platte.River will be proactive in evaluating and implementing improvements in its power operations that balance environmental and other solo-economic concerns. Federal Energy Policy The 111th Congress will convene in late January. Most energy policy initiatives likely will be focused on reducing the environmental impacts of generating electricity. Congress may consider adopting a federal renewable portfolio standard, create or AML expand programs to encourage energy efficiency and consider ways to break the transmission logjam that exists—to carry both traditional and renewable sources of 2009 Legislative and Regulatory Policy Statement I Platte River Power Authority ATTACHMENT 10 energy. President-elect Barack Obama made creating a "new energy economy" a major campaign theme and Democrats,who have increased their majorities in the Senate and House,generally have supported this direction. General policy areas that Platte River will monitor include: • Renewable Portfolio Standards. president-elect Barack Obama has endorsed creating a renewable portfolio standard of 25 percent by 2025. Platte River believes locally owned and controlled utilities are best suited to determine the Proper mix of renewable resources for 'power generation and delivery. Therefore, Platte River opposes federally mandated renewable energy portfolio standards. If Congress considers creating a federal RPS that includes municipal utilities, it should ensure that financial programs which have been authorized, such as the Renewable Energy Production Incentive and Clean Renewable Energy Bonds, receive full funding and are available for projects that benefit the owner municipalities. • Renewable Energy Program Funding. Platte River supports the continuation of federal financial incentives to encourage the development of renewable energy, especially if a federal RPS is enacted. Platte River .utilizes the federal government's Renewable Energy Production Incentive (REPI) program to help defray the higher cost of wind energy generated from the Medicine Bow Wind Project (MBWP). The Energy Policy Act of 2005 reauthorized REPI for 20 years, however, its funding remains woefully inadequate. To date, Platte River has received almost$1 million less than expected from this program. Nationally, $5 million dollars has been allocated for REPI each year, while requests substantially exceed that number. Platte River encourages this program to receive full funding. Platte River also supports extending and providing more funding to the Clean Renewable Energy Bonds (CREBs)program. CREBs enable public power entities, such -as Platte River, access to below-market capital financing to build renewable resources. Funding has been limited to very small projects thus far. In order to be useful for Platte River,larger projects must also be eligible for CREB funding. Renewable energy incentives must continue, be expanded,and be made available on an equal basis to municipal power systems, rural electric cooperatives,and investor-owned utilities. • Regional Transmission Organizations (RTOs). Platte River believes that publicly owned joint action agencies,municipal,and other public power utilities should determine for themselves whether participation in an RTO will benefit their customers. Utilities should be able to preserve their ability to use their transmission systems for the intended purpose—tu provide reliable service to native load. Platte River opposes mandatory participation in an RTO when costs exceed benefits to our municipalities' customers or when it would undermine our ability to provide reliable power to the municipalities. Current energy policy addresses these concerns by making participation in RTOs voluntary and Providing protection to utilities'native load customers. 2009 Legislative and Regulatory Policy Statement I Platte River Power Authority ATTACHMENT 10 • Service Obligation. Platte River exists to provide reliable wholesale power to the owner municipalities. Platte River opposes any legislation or policy that would endanger our ability to use our transmission assets to deliver power to the municipalities. The native load protection language in current energy policy will allow Platte River to continue to meet its service obligations to the municipalities. Service obligation requirements need to be recognized as Congress and the Federal Energy Regulatory Commission weigh proposals to utilize existing transmission facilities to move renewable energy. • Transmission Access Reform. FERC Order No. 890,issued in February of 2007, culminated a re-examination of the open access transmission regime put in place through Order No. 888 and 889 during the mid 1990s. Order No. 890 also implemented the"FERC-lite"provisions of Energy Policy Act 2005. Platte River, in coordination with the Large Public Power ,Council (L.PPC), submitted comments. The LPPC comments sought to preserve the reciprocity provisions of Order Nos. 888 and 889 as the cornerstones of any FERC-lite implementation. The LPPC was largely successful,but there are numerous implementation issues that will face Platte River going forward, including modification of the present open access tariff and changes to the regional transmission planning process. Recently, the FERC issued a corresponding order updating the Standards of Conduct for transmission providers. Order No. 717 reverses many of the confusing provisions of Order No. 2004, which was the last FERC pronouncement on Standards of Conduct. Platte River is not functionally unbundled and the new Standards of Conduct are not directly pertinent to Platte River. • Fuel Diversity. Platte River supports policies that promote improved technology for all electricity generation fuel sources including coal, natural gas, hydro,nuclear,wind, solar, geothermal, and biomass as vital components of the country's energy portfolio. Plans to encourage fuel diversity should include classifying hydroelectric generation as a renewable fuel source, providing clean coal technology funding, and increasing research and development funds to make renewable energy sources more cost competitive. • System Reliability. Platte River supports improved coordination among existing power suppliers to allow construction of adequate generation and transmission resources. Permitting requirements and processes of federal and state agencies should be streamlined to allow the electric industry to respond effectively to growing energy demands. Platte River monitored,and participated when appropriate,in the creation of the Electric Reliability Organization and the subsequent promulgation of enforceable reliability standards. These enforceable reliability standards became effective in June 2007. Platte River is registered to perform a number of functions, and all of the municipalities are registered as Distribution Providers. A reliability compliance officer has been hired and efforts are underway to fully implement all necessary reliability programs. Platte River will assist the municipalities in implementing reliability standards. O 2009 Legislative and Regulatory Policy Statement I Platte River Power Authority ATTACHMENT 10 • Federal Hydropower. Federal hydropower comprises a significant portion (approximately 18 percent) of the electricity delivered to Platte River's municipalities. Platte River supports continued federal ownership and management of the nation's hydropower resources in order that the energy produced can be made available to public power utilities that act as competitive yardsticks to investor-owned utilities,as provided by law for 75 years. Federal Environmental Policy Growth in Colorado and strong local environmental awareness are causing communities and regulators to re-examine environmental policy and management solutions. Platte River's environmental policy and goals, as implemented by the EMS, ensure top environmental performance and regulatory compliance while successfully meeting municipal load requirements. Major environmental issues in which Platte River is proactively engaged include: Climate Change — Carbon Dioxide. In 2005,Platte River became the first utility outside California to join the California Climate Action Registry (CCAR). Additionally, in 2008, Platte River joined The Climate Registry (TCR, a national registry) and was recognized by Colorado Governor Bill Ritter for its actions. Platte River has also participated in the Department of Energy's (DOE) 1605(b) program. Platte River has voluntarily tracked and reported COz emissions reductions from facilities and from actions taken by Platte River and the municipalities. Platte River has been actively engaged in legislative proposals related to reducing carbon dioxide (CO2) emissions. Camsiderable activity is underway in Washington, D.C. and Colorado to address this issue. President- elect Obama has said he supports reducing greenhouse gas emissions to 1990 levels by 2012 and 80 percent below 1990 levels by 2050. Top Democrats on the House Energy and Commerce Committee have released a draft bill that would require the reduction of greenhouse gas emissions 80 percent below 2005 levels by 2050. In Colorado, the governor has asked Platte River and other consumer- owned utilities to develop plans to reach similar emissions targets. Platte River, which emits close to four million tons of CO2 annually from power generation resources, has a huge stake in the outcome of these endeavors. While Platte River has taken proactive steps to understand this issue,the fact remains that no large-scale technology exists today to capture and sequester CO2 during the coal combustion process. Furthermore, other CO: mitigation measures—including energy-efficiency improvements, renewable energy generation, and fuel switching—are limited in their mitigation potential,are very expensive,or both. Adding significant amounts of natural gas to the resource mix can increase price volatility and potentially lead to more dependence on foreign fuel supply as domestic gas reserves are depleted. Platte River maintains that neither Congress nor the General Assembly should impose an aggressive cap on CO2 emissions before cost-effective carbon rapture and sequestration technology is fully developed and deployed. Creating a CO2 cap before such tec iology is developed only will lead to higher costs for consumers. Platte River will 2009 Legislative and Regulatory Policy Statement I Platte River Power Authority ATTACHMENT 10 continue to work with other utilities that own fossil-fueled generation facilities engaged in the policy debate regarding capping and controlling COZ emissions • Mercury. The federal Clean Air Mercury Rule (CAMR), issued in March 2005, sought to reduce levels of mercury emissions through new source limits and a cap and trading program CAMR was vacated by court ruling (New Jersey vs. EPA) in February 2008- The Colorado Department of Public Health and Environment(CDPHE) adopted rules to implement CAMR in early 2007. These regulations, also known as the Colorado Utilities Mercury Reduction Program, are still in effect in their "state only" application despite the CAMR vacatur. Federal regulations under Section 112 of the Clean Air Act (hazardous air pollutants) will likely be promulgated sometime in the 2009-2010 timeframe. These regulations will focus on a maximum achievable control technology (MACT) standard and will likely require an initial 80 percent reduction requirement and ultimately a 90 percent removal rate. In order to provide accurate measurement of actual mercury emissions, mercury monitoring equipment was installed at the Rawhide Energy station in 2007 and formally certified in 2W8. The initial installation of the mercury removal equipment will take place in late 2009 or early 2010 and will be completed in 2010. The CDPHE Air Pollution Control Division (APCD) will issue a construction permit in late 2009. A mercury removal emission rate of 0.01741b/GWh is required under the State program at Rawhide by 2012 and an emission rate of 0.0087 lb/GWh is required by 2018. Platte River plans to operate Rawhide at or below these rates. It appears that the Craig station will not be required to install mercury controls, given the chemistry of the coal supplied to the plant and the specific emission control equipment installed at Craig(wet scrubber). • Endangered Species Act. Reauthorization of the Endangered species Act(ESA) has been actively discussed for almost two decades. Platte River's goal in this process is to ensure that property rights (land and water use) are adequately protected, a species recovery plan is developed before any species is listed, and there are merhanismc in place to mitigate the cost of environmental impact studies required for hydroelectric generation maintenance activities. In May 2008, the Department of Interior listed the polar bear as a threatened species under the ESA. Interior said the listing is based on the best available science, which shows that loss of sea ice threatens and will likely continue to threaten Polar bear habitat This loss of habitat puts polar bears at risk of becoming endangered in the foreseeable future, the standard established by the ESA for designating a threatened species, according to the Department of Interior. As many believe that global warming,caused by increasing greenhouse gas (GHG) concentrations, is causing the ice to melt, the listing could be used as a tool to prevent or significantly curtain burning fossil fuels for electricity production However, in making the announcement, Interior Secretary Dirk Kempthome reiterated President Bush's statement that the ESA was never intended to regulate global climate change. 2009 Legislative and Regulatory Policy Statement I Platte River power Authority ATTACHMENT 10 • New Source Review (NSR). Congress enacted the New Source Review (NSR) program in the 1977 reauthorization of the Clean Air Act with the goal of nunimizmg emissions from large, new, and modified stationary sources. In the late 1990s, the United States Environmental Protection Agency (EPA) began a comprehensive review of new or modified sources, including modified sources that it had already reviewed Platte River opposes any review process that would include standardized maintenance practices for existing equipment. In Platte River's case, existing maintenance practices have not caused its facilities emissions to exceed NSR permitting thresholds. Platte River also seeks to ensure that existing regulations are objectively applied. • Regional Haze Rule. The EPA promulgated the Regional Haze Rule in August 1999. The CDPHE is required to develop a State Implementation Plan (Sip) for Regional Haze Rule implementation. Phase I of the S1P focuses on the requirement for Best Available Retrofit Technology (BART) equipment at coal fired generation facilities subject to this first phase. The BART review phase was concluded in early 2008 and mostly accepted into the SIP by the EPA in mud 2008 with a SIP adoption planned for December 2008. Phase H of the EPA required Regional Haze SIP consists of additional"reasonable progress goals'' with a first target of 2018 and a final pollutant reduction target of 2064. Platte River is engaged via the Colorado Utilities Coalition for Clean Air (CUC) as a party to this SIP regulatory process. Due to conflicts with more imminent rulemakmg requirements, the Regional Haze SIP Phase II rulemaking was postponed by the APCD and Air Quality Control Commission to 2009. The APCD is requesting facility specific information concerning post combustion NOx controls and their cost from Colorado coal-fired generators. This information is tentatively due to the Division in January 2009- Black & Veatch provide a draft Rmohide NOx Reduction Study for Platte River in October 2008. This study,once finalized,will be a basis for negotiations with the APCD during the 2009 Regional Haze Rule stakeholder process. • Rocky Mountain National Park Nitrogen Reduction Deposition Plan. Rocky Mountain National Park (RMNI) is a nationally and internationally recognized scenic, recreational and historic public treasure located within the State of Colorado. Data collected over the past 20 years and findings published in over 80 peer reviewed research articles document changes to this fragile ecosystem resulting from nitrogen deposition on the east side of the Continental Divide. These include: • Changes in the type and abundance of aquatic plant species; • Elevated levels of nitrate in surface waters; • Elevated levels of nitrogen in spruce tree chemistry; • Long-term accumulation of nitrogen in forest soils;and • A shift in alpine tundra plant communities favoring sedges and grasses of the natural wildflower flora. US. Environmental Protection Agency and the National Park Service formed the Rocky Mountain National Park Initiative ("Initiative") to study and promote action 2009 Legislative and Regulatory Policy Statement I Platte River Power Authority ATTACHMENT 10 to address nitrogen deposition issues facing the Park. The Rocky Mountain National Park Nitrogen Deposition Reduction Plan ("Plan") is the result of this collaborative effort The Plan is voluntary and imposes no enforceable requirement on any entity to make emission reductions at this time,but does contemplate that the Commission may be presented with future proposals to adopt enforceable requirements to reduce nitrogen deposition in RMNP. Platte River,through the Colorado Utilities Coalition for Clean Air (CUC) commented on the Plan during the August 2007 Air Quality Control Commission hearing and monitored meetings for the potential progression from plan to legislation, and then on to regulations and compliance. Fossil fueled generation emirs ons affecting RMNP will be addressed most specifically under Regional Haze rulemaking and the new Ozone Standards and it is unlikely that there will be new regulations directed at this sector. • Ozone Regulations. On June 20, 2007, the EPA Administrator proposed to significantly tighten the National Ambient Air Quality Standards for Ozone from the current eight-hour standard of 0.08 ppm to either 0.070 ppm or 0.075 ppm. The final 0.075 ppm standard of the revised Ozone NAAQS will result in the current 104 non- attainment counties increasing to 398 counties. There are currently only 639 monitored counties in the U.S.,one of which is Larimer County, Colorado. Latimer County ozone levels have exceeded the 0.075 ppm level. The final rule was issued in March 2008. Final State Implementation Plans are due to EPA in 2013 and attainment dates are 2013-2030. Platte River is preparing to engage in the 2009 ozone regulatory implementation process via the CUC to determine the requirements,and to formulate a proactive response and subsequent plan State Issues Generally, Platte River monitors legislative efforts in the Colorado General Assembly through coalitions including the Colorado Association of Municipal Utilities, Colorado Municipal League,Colorado Utilities Coalition,and the Colorado Association of commerce and Industry. The following areas are directly monitored: • Climate change — carbon dioxide. Governor Ritter released his Climate Action Plan in late 2007,which calls for the state's GHG emissions to be reduced by 20 percent below 2005 levels by 2020 and 80 percent below those levels by 2050. The governor's Plan is not prescriptive, but offers suggestions about how utilities may achieve these goals. Significantly increased energy efficiency and demand side management (DSM) programs, significantly increasing renewable resources as part of the state's energy mix and developing new technologies to capture and sequester CA2 from power plant emissions are ideas advanced by the governor. Platte River will submit a plan to the Governor's Energy Office in June 2009 outlining steps it believes can be taken to meet the governor's goals. • State Renewable Portfolio Standard. Colorado lawmakers updated the state renewable Dq portfolio standard (RPS) in 2007 (for 2008 implementation). The RPS now requires 2009 Legislative and Regulatory Policy Statement Platte River Power Authority ATTACHMENT 10 investor-owned retail electric systems with more than 40,000 customers to provide 20 percent of their electric sales from renewable energy by 2020,and to provide 4 percent of the renewable energy from solar electric systems, with half from customer-sited solar systems. The RPS also requires all cooperative utilities to provide 10 percent of their power from renewable sources.by 2020. Municipal utilities with more than 40,000 customers have to provide 10 percent of their energy from qualified renewable sources by 2020. The RPS presently applies to Fort Collins and will soon apply to Longmont,but allows them to create a renewables program that is "substantially similar" to the state mandate. The municipalities are required to report to the Colorado Public Utilities Commission that they have created such a program. Platte River is working with all the owner municipalities to help them meet their renewable goals and policies in the way that best suits their communities. • Local Decision Making Authority. Platte River firmly believes that operating decisions affecting municipal utilities are best made at the local level. The state legislature should not mandate actions or decisions regarding the operations of locally owned utilities. Platte River has worked to limit the adverse affects of legislative efforts to mandate specific interconnection,net metering,and renewable energy and DSM standards. • Municipal Annexation and Utility Service Territory. Platte River believes that Colorado's Constitution and the existing state statutes regarding electric service provision in newly annexed areas are equitable to all parties. Any proposed changes will be closely scrutinized to ensure that equity is maintained for all parties. • Growth and Its Impact on Municipal Utility Services. Platte River monitor; growth-. related legislation to ensure that municipal utilities are not adversely impacted. • State Air Quality. Platte River supports Colorado's efforts to establish a regional haze process to monitor and develop solutions to address major sources of haze in order that actual environmental benefits can be realized in a cost-effective manner. This includes installing adequate haze monitors in southern and western Colorado to scientifically identify the major sources of haze within the state. • Integrating Regional Haze Rules into Colorado Regulations. The Colorado Air Quality Control Commission's efforts to develop a plan for implementation of regional haze rules were delayed until 2009. Implementation of much lowered allowable Nox emissions could greatly impact Platte River's generating facilities while failing to significantly reduce visibility impairment over federal lands (Class 1 Areas). Platte River will actively participate in the development of these rules to mitigate the overall financial and operational impacts of potentially required post combustion controls such as selective catalytic reduction(SCR). • Electric System Reliability and Power Quality. Platte River supports the construction Of generation and transmission resources to meet the states projected growth in future years. A well-balanced portfolio of energy options coupled with streamlining the state and federal permitting process for construction of new generation and transmission resources will ensure Colorado has reliable resources to meet its future energy needs. 2008 Legislative and Regulatory Policy Statement I Platte River Power Authority ATTACHMENT 10 • Cooperative Planning and Participation Platte River supports cooperative planning and participation in joint generation resources and transmission infrastructure. • Municipal Telecommunications Service Within Municipal Boundaries. Platte River supports interpreting the Federal Telecommunications Act of 1996 to encourage public Power systems to become fully engaged in providing telecommunications services or in facilitating the provision of such services by others. In the =5 Colorado Legislative session,legislation was adopted that places restrictions on municipal ut>lities' ability to provide retail telecommunications services. Platte River and CAMU worked with the bill sponsors and telecommunications providers to ensure that Platte River and its owner mmucspalities can continue to offer wholesale access on their fiber optic systems to retail service providers. No Platte River municipality is interested in providing retail telecommunications services at this time. • Statewide Water Issues. Platte River will monitor water related developments to ensure municipal utilities are not adversely impacted as Colorado addresses the myriad of issues brought about by severe drought conditions statewide. AM 2008 Legislative and Regulatory Policy Statement Platte River Power Authority ATTACHMENT PLATTE RIVER "l'01W"R� AUTHORI1'Y� ORGAN1,C�C r� nNTRACT ATTACHMENT I 1 TABLE OF CONTENTS 1.0 EFFECTIVE DATE....::...................................................................................................................2 2.0 ESTABLISHMENT OF PLATTE RIVER POWER AUTHORITY....................................:.......2 21 PURPOSES......................................................................................................................................3 2.2 FUNCTIONS,SERVICES,OR FACILITIES................................................................................4 2.3 BOARD OF DIRECTORS..............................................................................................................5 2.3.1 NUMBER...................:.................................................................................................................6 2.3.2 SELECTION..............:.................................................................................................................6 2 3.3 TERM.:::...:................... :..............................................................................................................6 2.3.4 REMOVAL........ :........................:...........................................a....................................................7 2.3.5 VACANCIES...................................................... .........f. .........^....................................8 ( � \ \// 2.3.6 COMPENSATION..............................................................................................................4......8 2.3.7 ANNUAL MEETINGS..........................................................1....... .......................................8 2.3.8 REGULAR MEETINGS..............:::................... ................1 ... ...................................9 2.3.9 SPECIAL MEETINGS............................................. ................9 ..............................................2.3.10 NOTICE OF MEETINGS.......................:.................\.:..: .............:.....\...�l I...........:...9 2.3.11 WAIVER OF NOTICE.............................................1 .. .................... ..... ................9 2 3.12 QUORUM..................................:............... ......................�.:.`�............................................10 2.3.13 ATTENDANCE BY TELECONFERENCE .... ......... �` ...........:.............................10 2.3.14 VOTE IN CASE OF A DEADLOCK. ,-'.. ..` '` ``� 10 .................................................... .....:. 2.3.15 DUTIES......................................:...:. . ...........��':...�:.............�:�...............................:::11 2.4 OFFICERS.................................... ............................................12 2.4.1 ELECTION OF OFFICERS AND TERMS OF OFFICE....: ....................................:.....:.12 v 24.2 REMOVAL.......................�`...1.f ... ............................j:.......................................................12 ..................2 4.3 DUTIES OF-OFFICERS./............::.:....... .......:..........................................................13 2.4.4 BONDS OF_OFFICERS' ....�........................ -..............................................................14 2.5 INDE�IVIIVIFICATION OF,OFFICERS�AND DIRECTORS......................................................15 2 6 TERM OF CONTRACT..... ..........:....� .. .................................................................:.....15 2.7ASSETS AND PROPERTIES..........:..:.....y,�.............................................................................:16 2.8 --DI6TRIBUTION OF ASSETS UPON TERMINATION...........................................................16 2.9 SEAL ..................................\...I............. ...................................................................................16 2.10 CONTRACTS.......... .. .....................::...........................................................................................16 .. . r r 2.11 CHECKS,DRAFTS,AND OTHER FINANCIAL DOCUMENTS.........................................17 2.12 DEPOSITS"..................../ .....17 ..........:.......:.........:..................................................................... 2.13 FISCAL YEAR...\......./...........................................................................................................17 2.14 PRINCIPAL PL,ACE�OF'BUSINESS::::...............:.......................................................................17 3.0 GENERAL POWERS......... ..............:......::............................... ..................................................17 c. 4.0 POLITICAL SUBDTVISION........................................................................................................21 5.0 REVENUE BONDS................................................................................................................::...:21 6.0 DEBT NOT THAT OF MUNICIPALITIES...............................................................................21 7.0 FILING OF CONTRACT........................................................................................................:.::.21 8.0 NOTICES.......................................................................................................................................21 9.0 SEVERABIL M. ..............................::....................................................................................:.......22 10.0 DUPLICATE ORIGINALS..........................................................................................................22 ATTACHMENT I AMENDED AND RESTATED ORGANIC CONTRACT ESTABLISHING PLATTE RIVER POWER AUTHORITY AS A SEPARATE GOVERNMENTAL ENTITY THIS CONTRACT, originally made and entered into as of June 17, 1975, and amended February 14, 1977,and July 27, 1978, and amended and restated the 315t day of March 1980, and the 15t day of July,1998,and as further amended and restated on this day of. 2008, by the parties to this Contract which are: TOWN OF/ESTES PARK, COLORADO, a municipal corporation of the State of Colorado ("Estes Park"), CITY OF FORT COLLINS, COLORADO, a municipal corporation of the State of Colorado (,Fort Collins3);\CITY, OF LONGMONT, COLORADO, a municipal corporation of the State of Colorado ("Longmont't), and CITY OF LOVELAND, COLORADO, a municipal corporation of)the�State of Colo�do_(Xoveland"). When specificity is not required, the municipal-corporations which are parties hereto will hereinafter be individually referred to as"Municipality" anand collectively as Municipalities;' V WTTNESSETH: WHEREAS,-Estes Park owns and operates a municipal electric system which supplies electric power and energy at retail to users locat,� within the town limits of Estes Park and the adjjaac�eent�ice area of the Estes Park electric-system;and `� WH RE S, Fort Collins 1s and operates a municipal electric system which supplies electric power d energy at retail to users located within the city limits of Fort Collins;and WHEREAS, Longmont o c j and operates a municipal electric system which supplies electric power and energy,7fh �`a 1 to users located within the city limits of Longmont and the adjacent service area Longmont electric system,and WHEREAS, Loveland owns and operates a municipal electric system which supplies electric power and energy at retail to users located within the city limits of Loveland and the adjacent service area of the Loveland electric system; and WHEREAS, the Municipalities on June 17, 1975, established, pursuant to the provisions of C.R.S. § 29-1-204, as then enacted, Platte River Power Authority (the "Authority"), as a separate governmental entity and successor to a nonprofit corporation,to be the instrumentality ATTACHMENT I I of the Municipalities and as such successor,to continue to supply their wholesale electric power and energy requirements;and WHEREAS, during 1998 the Municipalities contracted with one another to establish, pursuant to the provisions of C.R.S. § 29-1-203, the Authority as a separate legal entity and multi-purpose intergovernmental authority to provide designated functions, services, or facilities lawfully authorized to any combination of two or more of the Municipalities provided that such function, service, or facility constitutes an "enterpris"s defined in subsection 2(d) of Article X,Section 20 of the Colorado Constitution;and �\ WHEREAS, increased complexity and risk 1111 (the electric uv hty industry have created V the need to enhance utility image and customer loyaltye�Mumcipaliti\wish to clarify that the Organic Contract authorizes the Authority to engage�nabroaad range of•seervices�which are incidental to or supportive of the Municipalities continued ability to provide electric power and energy services to their customers on a competitiv b;.and , WHEREAS, the Municipalities now wish f further amend the Organic Contract, to extend its term and to restate the amended provisions�(/the ed ,single updated document. NOW, THEREFORE, the/Mu cipalities o�herby I amen y—executed d and restate the Organic Contract, originallcutedJ,,ulnJe�17,`9, and sul�queJntly amended, so that as hereby amended and restated (provides,and\the Municipalities do agree,as follows: 1.r�EFFECTIVE DATE This Contract,as hereby amended and restated,shall become effective when it has been duly executed by all of the Municipalities. 2.0 ESTABLISHMENT OF PLATTE RIVER POWER AUTHORITY As of Jun17, 975, the Municipalities establish a separate governmental entity, to be known as Platte River Power Authority,to be used by the Municipalities to effect the development of electric energy resources and the production and transmission of electric energy in whole or in part for the benefit of the inhabitants of the Municipalities. As of July 1, 1998, the Municipalities also establish the Authority as a separate governmental entity and multi-purpose intergovernmental authority to provide additional designated functions, Organic Contract Amended and Restated_/_/2008 Page 2 of 23 ATTACHMENT 11 services, or facilities lawfully authorized to any combination of two or more of the Municipalities, provided that such function, service, or facilities constitutes an "enterprise' as defined in subsection 2(d) of Article X, Section 20 of the Colorado Constitution. 2.1 PURPOSES The purposes of the Authority are o codduct its business and affairs for the benefit of the Municipalities d their inhhabitanntts: /1 \ (i) to provide the electric power and energy requirements of the Municipalities and the reta�ii stomers wits i \theMunid palities; (ii) to engage in busmess.alcti�vities\rela\\ted:to th�provision of electric power and ene gy services\w\hich the Board determines are likely to enhan ce lies;the competitive position of the Authority or the Mu r 11 li and (iii Nprovide,any�additional designated function, service, or facility law lly au ri ed�o any combination of two or more of the Mu ciipalities,ipr vided that these constitute an "enterprise" as define din subsection 2(d) of Article X, Section 20 of the Colorado Constitution. A particular function, service, or facility shall be treated as designated as a separate purpose under clause (iii) of the previous sentence only upon receipt by each Municipality which is designating the function,service, or facility to also be performed by the Authority of(a) a resolution adopted by unanimous vote of the Board of Directors of the Authority designating the function,service,or facility as a purpose to also be jointly exercised by the designating Municipalities through the Authority and (b) opinions of Organic Contract Amended and Restated_/_/2008 Page 3 of 23 ATTACHMENT I 1 counsel to each Municipality which is designating the function, service,or facility to also be performed by the Authority setting forth the extent to which the designated function, service, or facility is lawfully authorized such designating Municipality; and (c) an opinion of the Authority's bond counsel to the effect that the designated function, service, or facility constitutes an "enterprise' as defined in subsection 2(d) of Article X, Section 20 of the Colorado Constitution. F 2.2 FUNCTIONS,SERVICES,OR FACILITIES functions, services, or faciliihes�to be provi&4-Al— The the Authority are: The supplying of the electric po�hand energy regw ments of the Municipalities and retail customers within the Municipalities; and, the provision of any additional tin,service,orfacility,by means of: (i) acquiring; g, ownmg, reconstructing, improving, reh bilitvtin� repairing, opera and maintaining electric generatuig I ts, trans ss on systems and related facilities, or interests therein, for the purpose of producing, transmitting and del��ri`ng to the,��Municipalities, electric power and energy to the exte t 11'f their requirements, including renewable energy requirements; /) (ii) purchasing electric power and energy from electric utilities and oeerr producers of energy, as required to supply the Municipalities and perform its other obligations; (iii) selling at wholesale to the Municipalities all of the electric power and energy produced or purchased by the Authority which the Municipalities require; Organic Contract Amended and Restated_/_/2008 Page 4 of 23 ATTACHMENT 11 (iv) selling, exchanging and otherwise disposing of, under the most economically advantageous terms and conditions obtainable, any surplus power and energy or transmission capacity which the Authority owns,produces or purchases; (v) developing electric energy resources (including renewable sources) and producing and transmitting electric energy in whole or in part for the benefit of the inhabitants of�the M icuru palities; (vi) developing products and services to improve the efficiency of generation,transmission and,u e of electrical erg; (vii) acquiring, constructing, owmng, purchasselling, exchanging, or otherwise [(dIS—P-0-S-ihg� of, reconstructing, improving, rehabilitating, repatrmg,� operating, and maintaining assets, infrastru(tore>plants, ,systems, az►d'related facilities or interests the ,. (viii) developing produ- services, infrastructure, and resources related to os u �functi oservice, or facility for delivery to appropriate mark 1 in whole or in part for the benefit of the inhabitants of the Municipalities;and (ix) on,, ermmation of this Contract to vest in the Municipalities all right, title and interest of the Authority in or to all of its property and assets. 2.3 BOARD OF DIRECTORS The governing body of the Authority shall be a Board of Directors in which all legislative power of the Authority is vested. Organic Contract Amended and Restated_/_/2008 Page 5 of 23 ATTACHMENT 11 2.3.1 NUMBER The number of Directors shall be eight(8). 2.3.2 SELECTION Each Municipality shall be represented by two (2) members on the Board of Directors of the Authority, who shall be designated or appointed as follows: (i) MAYORS The Mayor of each ,o�the Muu ipalities,is hereby designated and shall serve as a member of the Board of Directors of the Au onty'contempporaneously with service as Mayor; -provided, however, thatl any Mayor may designatrlsome other member of th�goveming board of suchsMunicipality to serve as•a Director of the Authority in p�lac f the Mayor. J (ii) APPOIP, DIRECTORS The g v n g body of each of the Municipalities shall appoint�one (1) additional member to the Board of Directors. Appointed Directors shall be selected for 'judgment, experience, and expertise which make that person particularly qualified to serve as a Director of an electric utility. 2.3.3 TERM The term of office of the Directors of the Authority shall be as follows: Organic Contract Amended and Restated_/_/2008 Page 6 of 23 ATTACHMENT 11 (i) MAYORS The Mayor of each Municipality, or the member of the Municipality's governing board designated by the Mayor, shall serve as a Director of the Authority for the same period of time that the Mayor serves as Mayor of that Municipality. (ii) APPOINTED DIRECTORS The term of the,�ppointed Director for Estes Park shall expire on December 31 2 11, the ter,,o��Appointed Director for Fort Collins shall on Deccem eer 31, 20081 the term of the Appointed Director for Longmont shall expire on tuber 31,2010,pan_d> the tern of the AppointL-d DirecJJtor,f�L\elan�h/ll expire on December ;�20�09. Eacr�iuccess j hall)be appointed for a term of four years frolllth dat' of the expiration of the term for which the predecessor was appointed and until the successor is appointed and has qualified. 2.3.4 REMOVAL Any Director appointed by the governing board of a Municipality may b6 removed at any time by such governing board, with or without cause. A Mayor will be automatically removed as a Director upon vacating the office of Mayor, and a member of the Municipality's governing board designated to serve in place of a Mayor may be removed at any time by the Mayor, with or without cause. Organic Contract Amended and Restated_/_/2008 Page 7 of 23 ATTACHMENT I 1 2.3.5 VACANCIES A vacancy occurring in the directorship of an Appointed Director, whether such vacancy be the result of resignation, death, removal or disability, shall be filled by the appointment of a successor Appointed Director by the governing body of the Municipality which appointed the Director whose office has become vacant. In the case of a vacancy in the directorship of a Mayor or his designee from any Mu p lity, the vacancy shall be filled by the new Mayor or the Mayor's designation of`some other member of the governing board of that Municipality. A ' 2.3.6 COMPENSATION Directors shall not compensation��>their services, but Directors may bTe reimb i ed their actual for attendance at meetings,of the Board of Direccttors;and for expenses otherwise incurrel_ �on`bebehalf of th`A`utho�rity. 2.3:7 ANNUAL'�MEETWGS \ /h An annual meeting-of the Board of Directors shall be held within the lffnrs` 120 d y7 each year at such place in Fort Collins, - Colorado, as shall be designated in the notice of the meeting, to elect officers, to pass upon reports for the preceding fiscal year, and to transact such other business as may come before the meeting. Failure to hold the annual meeting at a designated time, or failure to hold the annual meeting in any year,shall not cause a forfeiture or dissolution or otherwise affect the Authority. Organic Contract Amended and Restated_/_/2008 Page 8 of 23 ATTACHMENT 11 2.3.8 REGULAR MEETINGS The Board of Directors may provide for the time and place for the holding of regular meetings by resolution without notice to Directors other than the resolution adopting the meeting schedule. 2.3.9 SPECIAL MEETINGS Special meetings of the Board o f Dir tors may be called by the Chairman or any DirecLa\n�d it sfiall then ue pon be the duty of the Secretary to cause notice of such meeting to be given as hereinafter provided. Special me tings of`the�Bo.o dof Directors shall be held at such time an place within tl e,St�at e of Colorado as shall be fixed by the Chauman or the Director calling the meeting. 2.3.10 NOTICEfORME`STINGS W� notice of the annual or f any special meeting of the Board 4ZAuthority, f�Direc�rs shall be delive.ered,to each Director not less than seven �,�nor morthan thirty-five (35), days before the date fixed for uch meeting, either personally or by mail, by or at the direction f the Secretary or, upon his/her default, by the person calling e meeting. If mailed, such notice shall be deemed to be elivlr"� when deposited in the United States mail addressed to eerector at his/her address as it appears on the records of the with postage prepaid. 2.3.11 WAIVER OF NOTICE Whenever any notice is required to be given to any Director of the Authority under the provisions of the law or this Contract, a waiver thereof in writing signed by such Director, whether before or after the time stated therein,shall be equivalent to the giving of Organic Contract Amended and Restated_/_/2008 Page 9 of 23 ATTACHMENT 11 such notice. Attendance of a Director at any meeting of the Board of Directors shall constitute a waiver by such Director of notice of such meeting except when such Director attends such meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 2.3.12 QUORUM A majority of the numb re of Directo/Othen in office shall constitute a quorum for the transa�ctil,of business; provided that, if less than a majority of th\e Direeto s then m office is present at a meeting, a majority of the l rCto prese t\m\�djourn the meeting; and, provided further, that,the Secretary shall notify any absent Directors df the�tirne and place of uch adjourned meeting. l// � The act of a majority of the-Direc�tors present at a meeting at which a quorum iis,present shall be the act,'of;the Board of Directors. 73�13�ATTENDAN\CE BY TELECONFERENCE Director mayyattend and fully participate in any meeting through electronic teleconferencmg. 2.3.14 VOTE IN CASE OF A DEADLOCK In 4' event the Board of Directors, at a meeting at which a quorum is present, is deadlocked and unable to obtain a majority v t of the Directors present concerning a matter being considered for action, any Director may require a "Weighted Vote." A "Weighted Vote" shall then be taken with each Director's vote being given one half the proportion which: (i) the dollar amount of electric power and energy purchased from the Authority during the twelve-month period Organic Contract Amended and Restated_/_/2008 Page 10 of 23 ATTACHMENT 11 ending with the close of the billing period for the month two months prior to the month of the deadlocked meeting and paid for by the Municipality appointing such Director bears to; (ii) the dollar amount of all electric power and energy purchased from the Authority and paid for by the Municipalities dunrtg said twelve4nth period. / „ The act of a majority of the Weigh\ted Vote\sh`. all be the act of the Board of Directors. ,J 2.3.15 DUTIES �y \Directors The duties of th Bardof v shaU+be: .� (i) To goem the+bus, mess,and affairs of the Authority. (ii) To exercise all powers of the Authority. (iii To comply with the provisions of parts 1, 5, and 6 of Article 1 of Title 29,C.RS. (iv) To adopt a fiscal resolution, which complies with statutory and other restrictions imposed by law on the affairs of the Authority, to govern the financial transactions of the Authority, including the receipt, custody, and disbursement of its funds, securities, and other assets, and to provide for the services of a firm of independent certified public accountants to examine, at least annually, Organic Contract Amended and Restated_/_/2008 Page 11 of 23 ATTACHMENT 11 the financial records and accounts of the Authority and to report thereupon to the Board of Directors. (v) To keep minutes of its proceedings. 2.4 OFFICERS The officers of the Authority shall be`la Chairman, Vice Chairman, Secretary, Treasurer, General `anger\and,,_s h other officers and assistant officers as may be authorized by the Board of Directors to perform such duties as may be a s ed by the Bo r of Directors. The Chairman and Vice Chairman shall�m<em��bers of the Boardf Directors, but other officers of the Authority need not be members of the Board of Directors. ri Cox 2.4.1 ELECTION'OF OFFICERS AND TERMS OF OFFICE I At �chaal meeg o � of Directors, the members of the Board of Directors shall elect officers who shall serve as such officers of the Authority until the next annual meeting of the Board of Directors�d until their successor are elected and qualified.. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as may be conf ent. Vacancies or new offices may be filled at any meeting of,th Board of Directors. 2.4.2 REMOVAL Any officer or agent elected or appointed by the Board of Directors may be removed by the Board of Director, with or without cause, whenever in its judgment the best interests of the Authority will be served thereby. Organic Contract, Amended and Restated_/_/2008 Page 12 of 23 ATTACHMENT 11 2.4.3 DUTIES OF OFFICERS In addition to duties assigned by the Board of Directors, the duties of the officers shall include the following: (i) CHAIRMAN The Chairman shall preside at all meetings of the Board of Directors and, except as otherwise delegated by the Board of Directors, s execute ll\l instruments of the Authority, and shall perform-.such other duties as the Board of Directo�.m`ay�prescribe. (ii) VICE CHAIRMAN The Vice Ch mair shall, in the absence of the Chairman, or in the e/t of,the Chairman'in�bility or refusal to act, „v perform the duties of the`Chairman and when so acting shall have all the pow)e"f and be subject to all the restrictions upon Cha Chairman. The Vice Chairman shall also,perfonn such other duties as may be prescribed by the Boardf DDirectors. (iii) SECRETARY The Secretary shall maintain the official records of the Authority, including all resolutions and regulations approved by the Board of Directors, the minutes of The of the Board of Directors, and a register of the names and addresses of Directors and officers, and shall issue notice of meetings, attest and affix the corporate seal to all documents of the Authority, and shall perform such other duties as the Board of Directors may prescribe. Organic Contract Amended and Restated_/_/2008 Page 13 of 23 ATTACHMENT 11 (iv) TREASURER The Treasurer shall serve as financial officer of the Authority and shall, pursuant to the fiscal resolution adopted by the Board of Directors governing the financial transactions of the Authority and the restrictions imposed by law, be responsible for the receipt,custody, investment, and disbursement�of the Authority's funds and securities and for duties u(de t to the office of Treasurer, and shall perform other duties as thLBoard of Directors may prescribe. (v) GENERAL MANAGER The Generanager shall be the principal executive officer tof the Authority`�with u responsibility for the pla ning�oper�ons,\ and administrative affairs of the Authority, as � .the c�duration thereof, pursuant to </�,policies and programs approved by the Board of Directors, and shall\be the agent for service of process on the Auth nty. �When and while a vacancy exists in the office of General'Manager, the Board of Directors shall appoint a qualified interim General Manager to act as the principal executive officer of the Authority. 2A.4 /BONDS OF OFFICERS �/ The Treasurer and any other officer or agent of the Authority charged with responsibility for the custody of any of its funds or property shall give bond in such sum and with such surety as the Board of Directors shall determine. The Board of Directors in its discretion may also require any other officer, agent, or employee of the Authority to give bond in such amount and with such Organic Contract Amended and Restated_/_/2008 Page 14 of 23 ATTACHMENT 11 surety as it shall determine. The cost of such bond shall be an expense payable by the Authority. 2.5 INDEMNIFICATION OF OFFICERS AND DIRECTORS Each Director and officer of the Authority, whether or not then in office, and his/her personal representatives, shall be indemnified by the Authority against all costs and expenses E ctually and necessarily incurred by him/her in connection w�th--the d'efe�e%f'any action, suit, or proceeding in which he/she y be involved or to,which he/she may be \ v made a party by reason of his/her being or having bebbeeen such Directoror officer, except in relation to matters as to which he/she shall be finally adjudged in such action, suit, or proce~edg to be liable for willful or wanton negligence or m�d in the performance,of duty. Such costs and expenses shall include amounts reasonabl ipaid in settlement for the If \g purpose of curtailing the costs,of litia\tion but only if the Authority is advised in jwrihng by its counsell thaFt i his/her opinion the person iiide"ed d n� commit*gr2s negligence or willful and wanton misconduct.uct.The f�going right of indemnification shall not be exclusive of other°rights to which tie/she may be entitled as a matter of law or by agreement. 2.6 TERM OF CONTRACT \ This Co tr t shall continue in force and effect until December 31, 2050, \\and until thereafter terminated by any Municipality following not less th! twelve (12) months written notice to the other Municipalities of its intention to terminate; provided, however, that this Contract may be amended, modified, or terminated at any time by a written document approved and executed by each and every Municipality which is a party to this Contract, and, provided further, however, that this Contract may not in any event be terminated so long as the Authority has bonds, notes, Organic Contract Amended and Restated_/_/2008 Page 15 of 23 ATTACHMENT 11 or other obligations outstanding, unless provision for full payment of such obligations, by escrow or otherwise, has been made pursuant to the terms of such obligations. 2.7 ASSETS AND PROPERTIES All assets and properties of the Authority shall be held in trust for the purposes herein mentioned, including the payment of the liabilities of the Authority. 1� r 2.8 DISTRIBUTION OF ASSETS UPON TERMINATION In the event of the termination of this Contract and the dissolution of the V\ .'\ , Authority, all of its assets shall immediately" mmediately vest in the Municipalities. The assets of the Authori�it o�yed to ech�Municipality shall be that proportion which (i) th�(total doll`amount of learic power and energy purchased and paid fo�by such/Mu ucipality,5from the Authority and its predecessor/duViriKg their corporatee existence,e, bears to (ii) the total dollar amounnt of jjall,ele�power and energy purchased and paid for by all of \( tlie-Municipalities, from the Authority and its predecessor during their corporate existence. \ 2.9 SEAL The corpora seal of the Authority shall be in the form of a circle and have inscribed thereon the name of the Authority and the words "Corporate Seal," together with such insignia, if any, as the Board of Directors may authorize. 2.10 CONTRACTS Except as otherwise provided by law, the Board of Directors may authorize any officer or officers, agent or agents, to enter into any Organic Contract Amended and Restated_/_/2008 Page 16 of 23 ATTACHMENT 1 l contract,or execute and deliver any instrument in the name and on behalf of the Authority. 2.11 CHECKS, DRAFTS, AND OTHER FINANCIAL DOCUMENTS All checks, drafts, or other orders for payment of money and all notes, bonds, or other evidences of indebtedness issued in the name of the Authority shall be signed by((such officer or officers, agent or agents, employee or employees of the¢Authority and`in/such manner as shall be determined by the fiscal resolution. 2.12 DEPOSITS All funds of the Authority shall be deposited�in a manner set forth by the fiscal resolution. 2.13 FISCAL YEAR The fiscal year�f the Authority shall beahe calendar year. C114�RINAL PLACE OF BUSINESS cip1 place of bsiness of the Authority shall be in Fort Collins, 3.0 GENERAL POWERS Thd generall power of the Authority shall include the following powers: (i) ELECTRIC ENERGY To develop electric energy resources and related services, and produce, purchase, and transmit electric energy, in whole or in part, for the benefit of the inhabitants of the Municipalities. Organic Contract Amended and Restated_/_/2008 Page 17 of 23 ATTACHMENT 11 (ii) CONTRACTS To make and enter contracts of every kind with the Municipalities, the United States, any state or political subdivision thereof, and any individual, firm, association, partnership, corporation or any other organization of any kind. (iii) 'AGENTS AND EMPLOYEES � To employ agents and employe 6 � (iv) FACILITIES To acquire, construct, manage, maintain, and operate�etnc energy facilities, works, and improvements and`y`rests therein, including, without limitation, to acquire construct, reconstruct, improve, and rehabilitate,repair,ope� and \fain(sepa aaately or jointly) generating miIN . � A</ plants, transssion systems aL rel\ated facilities for the purpose of delivering electrical power d e J rgy generated thereby to the <<a, unicipalities; and any mine, w pipeline, plant, structure, or other ility fonthe d el pment,production,manufacture,storage,fabrication, processing ssmg of fossil clear fuel of any kind for use, in whole or in ajor partm any ofsuch generating plants, and any railroad cars, ckage, pips, equipment, and any structures or facilities of any kind ed or useful ' the transporting of fuel to any of such generating plants, d to sell, deliver, exchange, or otherwise dispose of the power and energy .generated by said plants, and any of the waste or by-products therefrom, and to purchase, .lease, or otherwise acquire and equip, maintain, operate, sell, assign, convey, lease, mortgage, pledge, and otherwise dispose of electrical generating plants, transmission systems and related facilities, together with all lands,buildings,equipment,and all other real or personal property, tangible or intangible, necessary or incidental thereto. Organic Contract Amended and Restated_/_/2008 Page 18 of 23 ATTACHMENT 11 (v) PROPERTY To acquire, hold, lease (as lessor or lessee), sell, or otherwise dispose of any real or personal property, commodity, and service including, without limitation, to buy, lease,construct, appropriate, contract for, invest in, and otherwise acquire, and to own, hold, maintain, equip, operate, manage, improve, develop, mortgage, and deal j'\and with, and to sell, lease, exchange, transfer, convey and Cotherwise dispose of and tomortgage, pledge, hypothecate and otherwise encumb reiLnd personal property of every kind,tangible and intangible. (vi) CONDEMNATION To condemn property fovpub�e, if such propertyAS' not owned by any public utility and devotedto such'public use pursuant to state authority. (vii) DEBT To incur debts, liabilities, or obligations and t borrow money and, from time,to` e, t make, accept, endorse, execute, issue, and deliver bonds, deb Mures,pro misty o�',?bills of exchange, and other obligations of the Authority for monies borrowed or in payment for property acquired or for any of the other purposes of the Authority, and to secure the payment of any such obligations by mortgage, pledge, deed, indenture, agreement, or,other collateral instrument, or by other lien upon, assignment of, or ag �t m regard to, all or any part of the properties, rights, assets, contracts, easements, revenues, and privileges of the Authority wherever situated. (viii) LITIGATION To sue and to be sued in its name. Organic Contract Amended and Restated_/_/2008 Page 19 of 23 ATTACHMENT 11 (ix) SEAL To have and to use a corporate seal. (x) RATES To fix, maintain, and revise fees, rates, and charges for functions, services, or facilities provided by the Authority. (xi) REGULATIONS To adopt, by resolution, regulations respecting the'exerci e its power and the carrying out of its purposes. (xii) AGENTS To do and perform any ac d things author d by this section under, through, or by means of\ ag n/t or by contracts with any person, firm, corporation ongove mental enhtyy (xiii)J JOINT OWNERSHIP To owc prate, and mamtaui real and personal property,and facilities in common With others, as permitted by law, and to conduct joint, partnership, cooperative, or other operations with others and to exercise all of the p/�ers granted in this Contract in joint partnership or cooper`cooperative efforts and operations with others. (xiv) OTHER POWERS To exercise any other powers which are essential, necessary, incidental, convenient, or conducive to providing the wholesale electric power and energy requirements of the Municipalities, as well as to accomplishing the purposes, functions, services, and facilities set forth in Sections 2.0, 2.1, and 2.2 of this Organic Contract. Organic Contract Amended and Restated_/_/2008 Page 20 of 23 ATTACHMENT 11 4.0 POLITICAL SUBDIVISION The Authority shall be a political subdivision and a public corporation of the State of Colorado separate from the Municipalities. It shall have the duties, privileges, immunities, rights, liabilities, and disabilities of a public body politic and corporate. 5.0 REVENUE BONDS The Authority is authorized to issue blonds, notes, or other obligations secured by its electric revenues pursuant to the terms conditions, and authorization contained in C.R.S. §29-1-204(7). 6.0 DEBT NOT THAT OF MUNICIPAL f The bonds, notes, and other {bl gatior of the Authority shall not be the debts, liabilities, or obligations"f,the Municipalities. 7.0 FILING'OF•CONTRACT KA c po y of•this Contra t lall�bbee filed with the Division of Local Government of e State of Co`ado within`�ten (10) days after its execution by the unicipalities. 8.0 NOTICES Any.fo\al notice,,demand, or request provided for in this Contract shall be in writing and shall be deemed properly served, given, or made if delivered in person ors/t by registered or certified mail, postage prepaid, to the persons specified below: Town of Estes Park,Colorado c/o Town Administrator P.O. Box 1200 Estes Park, Colorado 80517 Organic Contract Amended and Restated_/_/2008 Page 21 of 23 ATTACHMENT 11 City of Fort Collins,Colorado c/o Utilities Executive Director P.O. Box 580 Fort Collins,Colorado 80522 City of Longmont,Colorado c/o Director of Longmont Power&Communications 1100 South Sherman Longmont,Colorado 80501 City of Loveland,Colorado c/o Water and Power Director 200 North Wilson Loveland,Colorado 80537 9.0 SEVERABILITY In the event that any of the terms,.covenants, or conditions of this Contract or their application shall be held invar~rlid as to an pers n, corporation, or circumstance by any court having jurisdiction, the remainder of this Contract f j and the applicatio (-\and effect of its terms;co�ants, or conditions to such persons,corporation;;or`umstances•sh ll n of be affected thereby. 10-0 DUPLICATE ORIGINALS This Contract ybe�executedin several counterparts, each of which will be an original but all of which together shall constitute one and the same instrument. Organic Contract Amended and Restated_/_/2008 Page 22 of 23 ATTACHMENT 11 IN WITNESS WHEREOF,the Municipalities have caused this Contract,as amended,to be executed as of the—day of July,2008. TOWN OF ESTES PARK,COLORADO Attest: By: , Mayor ` Town Clerk fi CITY OF FORT COLLINS,COLORADO Attest: By: Mayor `+y Gity Clerk CITY OF LONGMONT,COLORAD, Attest: By: f Mayor City Clerk CITY OF LOVE LAND,COLORADO Attest: By: Mayor, / City Clerk Organic Contract Amended and Restated_/_/2008 Page 23 of 23 ATTACHMENT 11 AMENDED CONTRACT FOR THE SUPPLY OF ELECTRIC POWER AND ENERGY This contract, made this day of 2008, between PLATTE RIVER POWER AUTHORITY, a political subdivision organized and existing under and by virtue of the laws of the State of Colorado (hereinafter called "Platte River") and the CITY OF FORT COLLINS, COLORADO, a municipal corporation of the State of Colorado (hereinafter called "Fort Collins"). WITNESSETH , R 'eneratin WHEREAS, Platte River, owns, operates and m tricY g g facilities, aintains elec transmission lines,substations,and related facilities for the purpose of supplyij%e_1_ectric power and energy to municipal electric systems for resale;and WHEREAS,Platte River has heretofore entEsed:into or will#cec'ter into agreements for the s '. sale of electric power and energy similar in form to da,Agr}Bement withlthe cities of Estes Park, 91. Longmont and Loveland (which muni9palitiog�are ;:hereinafter collectively called "Municipalities");and f . , this Agreemt WHEREAS, the T�ransm_�s ion Facilities Agreement between {AT- 1 Platte River and#F6rt Collins;dated February 22,1980, WIVREAS,Fort Collins desrres toy pu�chaseMelectric power and energy from Platte River on tle ternns and conditions her �ei set forth; + NOk THEREFORE, in con i ration of the mutual undertakings herein contained, the Parties hereto'glee as follows: SO Article 1: Sale and Pu "chase ofrEectric Power and Energy (a) Platte Riverkshall sell and deliver to Fort Collins and Fort Collins shall purchase r and receive from Platte River all electric power and energy which Fort Collins shall require for the operation of its municipal electric system to the extent that Platte River shall have such power and energy available, provided, however, that (1) Fort Collins shall have the right to continue to generate its own power and energy to the extent of the capacity of its generating facilities in service on September 5, 1974 and may also generate power and energy for its own use from any new generation resource(s) owned and operated by Fort Collins provided that the Fort Collins Power Supply Agreement Amended and Restated_/_/2008 Page 1 of 10 total rated capacity of all such new generation is no greater than 1,000 kW or one percent of the peak load of Fort Collins, whichever is greater, and (2) Fort Collins shall not be in violation of the all requirements purchase obligation herein when it purchases power from net metered customers pursuant to statutory obligation. (b) Subject to the provisions of Article 2(a),Fort Collins hereby binds itself to take and pay for all power and energy that is generated, purchased or otherwise obtained by Platte River,and is furnished to Fort Collins for resale pursuant to Article 1(a)hereof,said payment to AS,' be made at the rates set forth in the Tariff Schedules W.Platte River iriaeffect at the time the power and energy is furnished to Fort Collins. Article 2: Rate for Power and Ener¢v � k3 (a) Fort Collins shall pay Platte River for all electrtpower and energy funshed hereunder at the rates and on the terms and conditions as provided�m the Platte River Tariff IVA Schedules;provided,however,that notwithstanding anyZther provilibi f this Agreement,the obligation of Fort Collins to pay Platte River for `all�el" e powand energy furnished CNNhereunder shall be, and is, a special o, lion of:::Pit Collin pa ble solely from revenues to be received by Fort Collins froa e,sale of elec �c., and energy to its electric utility customers duAh the teim'hereof and; not alien, charge, or liability against Fort Collins or against any,property or funds of Fort Collins other�than revenues to be received by Fort Collins fiom�A-6 sale of electric power and energy is electric utility customers during the term � N hereof, anii;.,the obligation to pay;Platte River for all electric power and energy furnished hereunder does hoo than t constitute a deb, liability, or obligation of Fort Collins other an from its �'uw�A. revenues to be&&ved from the sale of electric power and energy to its electric utility customers during the,term hereof, and Fort Collins is not otherwise obligated to pay such obligation ,r (b) The Board of Directors of Platte River at such intervals as it shall deem appropriate;but in any event not less frequently than once in each calendar year, shall review the rates for electric power and energy furnished hereunder and under similar agreements with the other Municipalities and, if necessary, shall revise such rates to produce revenues which shall be sufficient,but only sufficient,with the revenues of Platte River from all other sources, Fort Collins Power Supply Agreement Amended and Restated_/_/2008 Page 2 of 10 (i) to meet the cost of operation and maintenance (including, without limitation,fuel,replacements,insurance,taxes,fees,and administrative and general overhead expense) of the electric generating plants, transmission system,and related facilities of Platte River; (ii) to meet the cost of any power and energy purchased for resale hereunder by Platte River and the cost of transmission service; (iii) to make payments of principal and interest on all indebtedness and revenue bonds of Platte River andjprovide am eanurigs margin adequate to enable Platte River to obtain re;Lue bond f�g on favorable terms; and (iv) to provide for the establishment and mpAntenance of reasonabl es. (c) Platte River shall cause a notice in writing tosbe;given to each�`'1Vlnrucipality to wluch notice shallmt out each revision of the which it furnishes electric power and energy, y_ r; h rates with the effective date thereof,which sl be novI ss,than thirty�(V) days after the date of the notice. All rate adjustments shall ap ply.egually tb all`&y rdcip 'es to which Platte River X ss furnishes electric power and ener f; ess ot�rwise agreed upon, and shall not be discriminatory. Fort Collins agreltlt the rates fr t_ime"/�to time established by the Board of i a � Directors of Platte Rivet° deem�to be substitu ed for the rates presently contained in the Tariffs Schedules and agreto�pay for electnc,power and energy furnished to it hereunder after.tl�,�ective date of any revisions to the�T� +Schedules at such revised rates. Article 3: CovSenants of Platte Rive •M (a) Pl t"er shall use easonable diligence to furnish a constant and uninterrupted =�. supply of electric power:and,,energy hereunder. If the supply of electric power and energy shall fail, or be interrupted, q-'$eCome defective through uncontrollable forces, as defined herein, Platte River shall not be liable for any claim of damages caused thereby. (b) After first satisfying the electric power and energy requirements of all Municipalities to which it furnishes electric power and energy, Platte River may, in its sole discretion, market and dispose of any surplus electric power and energy which it owns or produces or which Platte River is obligated by contract to purchase, under the most advantageous terms and conditions obtainable. Fort Collins Power Supply Agreement Amended and Restated_/_/2008 Page 3 of 10 Article 4: Covenants of Fort Collins (a) Fort Collins agrees to maintain rates for electric power and energy furnished to its electric utility customers which will, after payment of all of Fort Collins' costs of operation and maintenance (including, without limitation, replacements, insurance, administrative and general overhead expense), return to Fort Collins sufficient revenue to meet its obligations to Platte River hereunder. (b) Fort Collins shall not sell at wholesale any of the electric energy delivered to it hereunder to any of its customers for resale by that AtsmerAiMess sd_ch resale is specifically �57 approved in writing by Platte River. (c) Fort Collins acknowledges that it is famlarq withjthe provision of Platte River's �5 contract with the Western Area Power Administration, wlueh requires, as a==condition of the �Yy purchase of federally generated power, that the Municipalities`mmply with certain provisions of the "General Power Contract Provisions," which:iszattached hereto as Attachment A. Fort -� = y....F e , Collins acknowledges its compliance obligations undere.the•General Power Contract Provisions, as that document presently exists and as it maaiobe modifiein.the fut e. a Article 5: Conditions of Deliveryiof;Power and EnerQyz ' (a) The.electn64powe�r and energy to be famished by Platte River shall be alternating current, sixty (60) hertz, three phase, subj6 t�to conditions of delivery and measurement as � . hereafter provided and the Tariff Schedules:m in for `the facilities through which electric power and energy is delivered az cse forth in Attachment B of this Agreement, attached hereto and made a part +Y'L,'S hereof. (c) Fort Collshallriiake and pay for all final connections between its system and , the system owned by,o -' ble to,Platte River at the points of delivery agreed upon (d) Unless otherwise agreed, Fort Collins shall install, own, and maintain the necessary substation equipment at the points of delivery from the system of, or available to, Platte River and shall install, own, and maintain switching and protective equipment of adequate design and sufficient capacity beyond such points of delivery to enable Fort Collins to take and use the electric power and energy supplied hereunder without hazard to such system. Fort Collins Power Supply Agreement Amended and Restated_/_/2008 Page 4 of 10 (e) To provide adequate service to Fort Collins, Platte River agrees to increase the capacity of an existing transmission point of delivery, or to establish a new transmission point of delivery at a mutually agreeable location, of a design capacity of not less than 10,000 Wa maximum nameplate rating at 55°C.rise,and in accordance with this Agreement. (f) Fort Collins shall give Platte River at least two years written notice of the need to increase the capacity of an existing transmission point of delivery or the need for a new transmission point of delivery. If new transmission is required, Fort Collins shall give Platte River at least four years written notice. The notice shaMpecify ihejamot&of additional or new SF ,t�.' capacity, the new transmission required, and the dbbired initi dafe its operation. Platte River shall, within sixty (60) days after receipt of such notice, and on the basis of the best i4 4 information available to Platte River from system plans fiaNIo�d projections frt Collins, inform Fort Collins in writing of Platte River's plans andchediiles with re e supply of the additional capacity requested by Fort Coilms��and sha l'%�t&reafter keep Fort Collins informed of Platte River's progress in supplying suchqactditional capaccity. Any written notice requesting additional capacity at an existingtpoint�of deli a or the establishment of a new Raver any as d all authority necessary for its facilities to point of delivery shall provide to Plate' occupy the property of rFort ColliljrYji(s g the period':in wliikh that point of delivery is used by ylY w Platte River foi=.the�d'elivefpower d?energy. (g),9-� F ort CoIlins4 iegn3 es the conguction of a 115 kV or 230 kV transmission line for adds i&Q service where such linegs a tap or rachal line over which energy can flow in only one direchonj as;distinguished from aV stem line over which energy can flow in either direction, then ownership;operation and maintenance of such 115 kV or 230 kV transmission line will be . undertaken by Plate°River pursuant to a separate agreement with Fort Collins which provides r'f for an appropriate sharinrig ofIthe annual costs of ownership and operation of such line for as long as such energy flow., delivery conditions prevail. Article 6: Consultation on System Planning (a) At least once each year, on or before July 1, Platte River shall consult Fort Collins concerning its requirements for transmission facilities to effect delivery of power and energy by Platte River. The date for such annual consultation shall be set by agreement of the Parties. Fort Collins Power Supply Agreement Amended and Restated_J_J2008 Page 5 of 10 (b) At least thirty (30) days prior to the date of such annual consultation,Fort Collins shall provide Platte River with two (2) copies of its latest estimate of requirements for delivery of power and energy covering a future period of ten (10) years. Platte River shall review Fort Collins's annual estimates and shall consider them in preparing Platte River's annual system plan. Following Platte River's annual consultations on delivery requirements with all Municipalities, Platte River shall prepare an annual system plan for the delivery of power and energy to all Municipalities covering a future period of ten (10)�years. Decisions regarding the � construction of any transmission and delivery facilitied' by Platce 1River pArnarily to supply Fort Collins, will take into account Fort Collins' long-range distribution,.,.. ements and costs and the long-range costs and benefits of alternative service plans. inlatteve;s annual system plan shall include appropriate load flow and stability studies anc7 a copy ther be-famished to Fort Collins if requested. S t y �T^ Article 7: Measurement of Power and Ener 9v. (a) Metering equipment shallbe furnishedr�installed;and maintained by Platte River l`k�Y ��ti�•�� at each point of delivery to Fort Collins'aCthe low Voltage side,of the transforming equipment or at such other points as agreed upon by the Partiesr Iv (b) flzisrt`a'dlusbmen'ts.for lowri oWtage side or remote metering shall be as specified in the Tariff;Schedules or as otherwtsee agreedby.-the Parties. ar Article 8: Meter Reading sand Pa of Bills (a) Platte River shall read!meters and invoice Fort Collins for power and energy furnished herder gat approxia �tely monthly intervals. Such invoices shall be due and payable to Platte Riveiwitiiin fifteen (15) days from date of issuance and shall become delinquent thereafter. (b) If Fort Collins' monthly bill becomes delinquent, late charges at the rate of a one and one-half percent (1Y2 %) per month of the unpaid balance shall be added, and if such bill is delinquent for a period of fifteen (15) days or longer, Platte River may discontinue delivery of electric power and energy not less than fifteen(15) days following written notice to Fort Collins. Fort Collins Power Supply Agreement Amended and Restated_/_/2008 Page 6 of 10 Article 9: Meter Testing_and Billing Adjustment (a) Platte River shall test and calibrate meters by comparison with accurate standards at intervals of twelve (12) months, and shall also make special meter tests at any time at Fort Collins' request. The cost of all tests shall be borne by Platte River; provided, however, that if any special meter test made at Fort Collins' request shall disclose that the meters are recording accurately,Fort Collins shall reimburse Platte River for the cost of such test. Meters registering within two percent(2%)above or below normal shall be deemed to be accurate. (b) The readings of any meter which are disFlgsed l test to"be inaccurate shall be corrected from the beginning of the monthly billmgsperiod immedia6ely preceding the billing period during which the test was made; provided,that4ito correction sha vbe made for a longer l':4• �y7� 'i.hE period than such inaccuracy is determined by y Platte RiV&-Ab�have existed W1fta meter fails to register, the electric power and energy delivered during such;pierkod of failure•shall,for billing purposes,be estimated by Platte River from the best information a ailable. µ (c) Platte River shall notify Fort Collins in advance of any meter�reading or test so that ;" . AY Fort Collins' representative may be present at�"such meter read�mg��or test �Article 10: Right of A cOccupancy and eiss Both Pif tiW§Nall haver a revocable license to occupy the property of the other Party t r' �° fqt , necessary to deliver and receive power &energy under this Agreement as described in NS Y Attachment B. Duly authorized€representatives�of either Party shall be permitted to enter the ` rl premises= �fhle other Party at all reasonable times in order to carry out the provisions of this Agreement 2a-those described in Attachment B. Article 11: Uncontro11ab1ekForces IW� Neither Party to this Agreement shall be considered to be in default in performance of any of its obligations, except the agreement to make payment, when a failure of performance shall be due to an uncontrollable force. The term "uncontrollable force" means any cause beyond the control of the Party affected, including but not restricted to, failure of or threat of failure of facilities, flood, earthquake, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience, labor dispute, labor or material shortage, sabotage, restraint by court order or public authority and action or inaction by, or failure to obtain the necessary Fort Collins Power Supply Agreement Amended and Restated_/_/2008 Page 7 of 10 authorization or approvals from, any governmental agency or authority, which by the exercise of due diligence such Party could not reasonably have been expected to avoid and which by exercise of due diligence it shall be unable to overcome. Nothing contained herein shall require a Party to settle any strike or labor dispute in which it may be involved. Either Party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give prompt written notice of such fact,if reasonable to do so, to the other Party and shall exercise due diligence to remove such inability with all reasonable dispatch. Article 12: Enforceability The Parties hereto recognize that there are legal tramps. imp� .upon them by the '� constitution, statutes, and rules and regulations of the State of Colorado and {i�he United �� States, and imposed upon them by their respective gove�rnfngstatutes, charters, ordinances, rules and regulations, and that, subject to such,CtS traints, the Parties intend to carry out the r � SCg� terms and conditions of this Agreement. twithsN�uiding anyiFother provision of this ._ . Agreement to the contrary,in no event shall either offthe Parties exercise any power or take any Fy � action which shall be prohibited by a glicable law: Wheneverpossible, each provision of this Agreement shall be interpreteydi �such a mann, e so 6. tc be effective and valid under applicable law, rArticler�3z Tenn of Agreement t (a)> , hiis Agreement shall b�iecome effective when executed by both Parties, and shall amend and supersede the existin 4'Contract for the Supply of Electric Power .and Energy 'k between Platte Riverand Fort Collins, dated July 1,1998. This Agreement shall remain in effect until December 31, 2 'and th'ereafter until terminated by either Party following not less than twelve(12)months writt .notice to the other Party of its intention to terminate. (b) The Transmission Facilities Agreement between Platte River and Fort Collins dated February 22,1980,shall be deemed terminated as of the date of this Agreement. Fort Collins Power Supply Agreement Amended and Restated—/_/2008 Page 8 of 10 Article 14: Notices Any formal notice provided for in this Agreement, and the payment of monies due,shall be deemed properly served,given or made,if delivered in person or sent by regular mail to the persons specified below: For Platte River: For Fort Collins: General Manager Utilities General Manager Platte River Power Authority COIRFIDof Fort'C@lins 2000 East Horsetooth Road P.O. Box 580 Fort Collins,Colorado 80525 Fo• Collins,Colored o80522 Article 15: Severability In the event that any of the terms, coveen2nts Gor conditi ,of.this Agreement or their application shall be held invalid as to any person or'circumstan) by any Court having l—,�V . jurisdiction, the remainder of this Agreeme�`it�and Ale a p cah n of its terms, covenants, or conditions to such persons or circums -e shall nfit be affec4�e thereby. Wy F y• .fix. es Fort Collins Power Supply Agreement Amended and Restated_/_/2008 Page 9 of 10 IN WITNESS WHEREOF,the Parties hereto have caused this Agreement to be executed the day and year first above written PLATTE RIVER POWER AUTHORITY ATTEST: By: By: General Manager Assistant Secretary CITY OF FORT COLLINS ATTEST: x, y y: By- Mayor City'Qerk Gt�t c Fort Collins Power Supply Agreement Amended and Restated_/_J2008 Page 10 of 10 EXHIBIT A Etlbotiw September i,2007 WESTERN AREA POWER ADMINISTRAIION GENERAL POWER CONIRACT PROVISIONS Page I APPLICABILITY. 1 Applicability II. DELIVERY OF SERVICE PROVISIONS- 2 Character ofServioe .. 1 3 Use of Capacity or F.nctgy in Excess of Contract Obligation . 1 4 Conthm4 of Service... -. ... . . .. . . .. 1 5 Multiple Points otMelivery.. 6 Metaring.. .... . 2 7 Emstence of Transmission Service Contract 3 8 Conditions of Dansrnission Service 3 9. Multiple Points of Delivery Involving Direct and indirect Deliveries 3 10. Construction,Operation,and Maintenance of Conttaetor's Power System 3.4 f M RATES,BILLING,AND PAYMENI PROVISIONS. tI Change of Rates ..... .. .. .... . . . .. ...:. 4 12. Minimum Seasonal or Annual Capacity Charge.. 4 13 Billing and Payment .. 4.5 ' 14 Nonpayment of Bills in Full When Due.. . . 5 15 Adjustments for Fractional Billing Period_ -5 16. Adjustments for Curtailments to Pam Service 5-6 IV. POWER SALES PROVISIONS. 1 I Resele of Firm Moctrlc Service(Wholesale Sales for Resale) 6 18 Distribution Principles. .. . 6 19 Contract Subject to Colorado River Compact 6 V FACILITIES PROVISIONS. 20 Design Approval_.. . .._. 6.7 21 Inspection and Acceptance 7 i 22 As-Built Drawings.. 7 23. Equipment Ownership Markers. 7 24 Third-Party Use of Facilities.,.. .... .. . _. •.7 25. Changes to Western Control Facilities 7.8 26 Modifiostion of Western Facilities . 8 r 27 Traninission Rights B i 28. Construction and Safety Procedures 8.9 I 29 Environmental Compliance..... ... .. 30 Reaponability for Regulated Materials . .. 9 } VI OTHER PROVISIONS. 9 i 31 Authorized Representatives of the Parties 32 EffectofSeadonHeadings 10 ; 33 Operating Ovldelitt"and Ptoeedures 10 34. Uncontrollable Forces: .10 1 35 LiabilltY. . .._._ . 10 36 Cooperation of Coatraging Patties . _. . 10.11 ; 37 Transfer of Interest in the Contract or Change in Preference Status . . 11 i 38 Choi=of Law and Forum 12 39, Waivers .. 12 Notices. 12 40. 41 Contingent upon Appropriations and Authorization .. 12 42 Covenant Against Contirgeru Fora 12 • 43 Contract Work Hours and Safety Standards 1 '• 44. Equal Opportwdty.EMPloymcot Ptactim. 133 45. Use ofConvict Labor. .•...... . 13 •Legal Citation Revised Soptccmber 1,2007 t ,i t l } •i infective September 1,2007 WBMRN AREA POWER ADMINISIR TION GENIIRAL POWER CONIR4CT PROVISIONS I. APPLICABILM. I Applicability. 1.1 These General Power Contract Provisions (Provisions) shall be a part of the contract to which they are attached. In the event these Provisions differ from requirements of the contract,specific terms set fortis in the contract shall prevail I2 If the Contractor has member utilities which arc either directly or indirectly receiving benefits from the contract, then the Contractor shall require such members to comply with Provisions 10, 17, 18, 19,29,30,36,43,44,and 45 of these General Power Contract Provisions Il DELIVERY OF SERVICE PROVISIONS. 2. Character of Service. Electric energy supplied or transmitted under the contract will be three-phase,alternating current, at a nominal frequarcy of sixty(60)hertz(cycles per second). 3 Use of Capacity or Energy in Excess of Contract Obligation. The Contractor is not entitled to use Iederal power,energy,or capacity in amounts greater than the Western conaact delivery obligation in effect for each type of service provided for in the contract oxcept with the approval of Western Unauthorized overruns of contract delivery obligations shall be subject to charges specified in the construct or the applicable rate schedules. Overruns shall not establish any continuing right thereto and the Contractor shall cease any overruns when requested by Western, or in the case of authorized overruns,when the approval expires,whichever occurs first, Nothing in the contract shall obligate Western to increase any delivery obligation. If additional power, energy, or capacity is not available From Western, the responsibility for securing additional power, energy, or capacity shall rest wholly with the Contractor. 4. Contimft of Service. Electric service will be supplied or transmitted continuously except for; (I)fluctuations, interruptions, or reductions due to uncontrollable forces, as defined in Provision 34 (Uncontrollable Forces) herein, (2) fluctuations;interruptions, or reductions due to operation of devices Installed fbr power system protection; and(3) temporary fluctuations, interruptions, or reductions, which, in the opinion of the party supplying the service, are necessary or desirable for the purposes of maimenance, repairs, replacements, installation of equipment, or investigation and inspection. The party supplying service, except in case of cmergeney, will give the party to whom service is being provided reasonable advance notice of such tempotary interruptions or reductions and will remove the cause thereof with diligence i 1 � - I i I I t I Effective September I,2001 5 Multiple Points of t)elivery When electric service is supplied at or transmitted to two or more points of delivery under the same rate schWule, said i ate schedule shall apply separately to the service supplied at or ttarmnitted to each point of delivery,Provide That where the meter readings are considered separately,and during abnormal conditions,the Contractor's system is Interconnected between points of delivery such that duplication of metered power- is possible, the meter readings at each affected point of delivery will be adjusted to compensate for duplication of power demand recalled by meters at alternate points of delivery due to abnormal conditions which are beyond tine Contractor's control or temporary conditions caused by scheduled outages 6 Metering. 61 The total electric power and energy supplied or transmitted under the contract will be measured by motoring equipment to be furnished and maintained by Western, a designated reprosontative of Wcstem,or where situations deem it appropriate as determined by Western, by the Contractor or its agent(s). In the event metering equipment is furnished and maintained by the Contractor or its agent(s)and the equipment is used for billing and other accounting purposes by Western,the Contractor shall ensure that the meta ing equipment complies with applicable metering policies established by Western 62 Motors shall be secured by appropriate security measures and metets shall not be accessed except when the meters are to be inspected,tested,adjusted,or repaired Representatives of affected parties shall be afforded reasonable opportunity to be present upon such occasions. Metering equipment shall be inspected and tested each year by the party responsible for meter maintenance,unless a dif amot test interval is determined in accordance with good utility practices by an applicable regional metering policy,or as agreed upon by the parties. Meters shall also be tested at any reasonable time upon request by a party hereto,or by an affected supplemental power supplier, transmission agent, or control area operator. Any metering equipment found to be damaged, defective,or inaccurate shall be repaired and readjusted or replaced by the patty responsible for meter maintenance as soon as pi actieable. Meters found with security breaches shall be tested for tampering and,if appropriate,meter readings shall be adjusted by Western pursuant to Prevision 6 3 below 6.3 Except as otlawise provided in Provision 6 4 hereof, should any meter that is used by Western for billing or other accounting purposes fail to register accurately,the electric powwerand benerg supplied or transmitted during the period of failure to regista accurately, shall, for billingpurposes, ed by Western from the best available information r 6A If inspections and tests of a meter used by Western for billing or other accounting purposes disclose an orter exceeding 2 percent,or a lesser range in erro► as agreed upon by the parties, then a correction j based upon the inaccuracy found shall be made to the service records for the period of inaccw say as determined by Wasters Wthe period of inaccuracy cannot be determined,the inaccuracy shall be assumed to have existed during j the entire monthly billing period immediately preceding the billing period in which the inspection or test was made i and the resulting correction shall be made aceoidingly. 6.5 Any correction in billing or other accounting information that results from a cottection in meter records shall be made in a subsequent monthly bill tendered by Western to the Contractor. Payment of such bill shall constitute full adjustment of any claim between the parties arising out of inaccurate metering equipment r i cy i i Effectivo Sepiember 1,2007 ). Existence of Transmission$Wx o Contract, if the contract provides fbr Western to furnish services using the facilities of a third party, the obligation of Western shall be subject to and contingent upon the existence of a transmission service contract Venting Western rights to use such facilities. If Western acquires or constructs facilities which would enable it to furnish direct service to the Contractor,Western,at its option,may furnish service over its own Noilities 8. Qnditions o 'Transmission Servioe. 8.1 When the electric service under the contract is furnished by Western over the fnciUtfes of others by virtue of a transmission service arrangement, the power and energy will be furnished at the voltage available and under the conditions which exist from time to time on the transmission system over which the service is supplied 82 Unless otherwise provided in the contract or applicable into schedule, the Contractor shall maintain a power factor at each point of delivery from Western's transmission agent as required by the transmission agent 83 Weston will endeavor to Inform the Contractor fi om time to time of any changes planned or proposed on the system over which the service is supplied, but the costs of any changes made necessary in the Contractor's system,because of changes or conditions on the system over which the service is supplied,shall not be a charge against or a liability of'Western. 8.4 If the Contractor, because of changes or conditions on the system over which service under the contract is supplied,is required to make changes on Its system at its own expense in order-to continue receiving service under the contract, then the Contractor may terminate service under the contract upon not less than sixty (60)days written notice given to Western prior to moking such changes,but not thereafter. 85 If Western notifies the Contractor that electric service provided for under the oonuact cannot be delivered to the Contractor because of an insufficiency of capacity available to Western in the facilities of others over which service under the contract is supplied, then the Contractor may terminate service under the contract upon not loss than sixty(60)days written notice given to Western prior to the date on which said capacity ceases to be available to Westoin,but not thereafter 9. Multfole Points of Delivery rnvolving Direct and Indirect Deliveries, When Western has provided line and substation capacity under the contract for the purpose of delivering electric service directly to the Contractor at specified direct points of delivery and also has agreed to absorb transmission service allowance or discounts for deliveries of energy over other system(s)to indirect points of delivery and the Contractor shifts any of its load served under the contract from direct delivery to indirect delivery,Western will not absorb the transmission service costs on such shifted load until the unused capacity,as determined solely by Western,available at the direct delivery points affected is fully utilized. 10 Construe on,Operation.and Maintenance of t,Rntractoi's Power System The Contractor shall,and, if applicable,shall require each of its membets or transmission agents to consuuct,operate,and maintain its power system in a manner which,as determined by Western,will not intorfcre S with the operation of the system of Western or its transmission agents over which electric services are furnished to the Contractor under the eonuact, and in a manner which will coordinate with the protective relaying and other , protective arrangements of the systems) of Westom or Western's transmission agents Western may reduce or 3 i 1 t Effective September 1,2001 discontinue furnishing services to the Contractor if,after notice by Weacm,the Contractor fills or refuses to make such changes as may be necessary to eliminate an unsatisfactory condition on the Contractor's power system which is determined by Western to imetfera significantly under current or probable conditions with any service supplied from the power system of West=or from the power system of a transmission agent of Western Such a redaction ot• discontinuance of service will not relieve the Comractor of liability lot any minimum charges provlded fot in the contract during the time said services are reduced or discontinued Nothing in this Provision shall be construed to render Western liable in any manna'for any claims,demands,costs,losses,causes of action, damages, of liability of any kind or nature arising out of of resulting from the construction, operation, or maintenance of the Contractor's power system M RATER,BILLING,AND PAYMENT PROVISIONS. 11 C`haneeoCRates Rates applicable under the contract shall be subject to change by Western in accordance with appropriate rate adjustment procedures. if at any time the United States promulgates a rate changing a rate then in effect under the contract, it will promptly notify the Contractor thereof Rates shall become effective as to the contract as of the effective date of such rate. The Contractor,by written notice to Western within ninety(90)days aft the effective date of a rate change,may cleat to terminate the service billed by Western under the new rate. Said tcratination shall be effective on the last day of the billing period requested by the Contractor not later than two(2)years after the effective date of the new into. Service provided by Western shall be paid for at the now rate regardless of whether the Contractor exercises the option to terminate service 12 Minimum Seasonal or Annual CaaMfty Charao. When the rate in effect under the contract provides for a minimum seasonal or annual capacity charge,a statement of the minimum capacity charge due.If any,shall be included In the bill rendered foi service for the last billing period of the service season or contract year as appropriate,adjusted for increases or decreases in the contract rate of delivery and for the number of billing periods duting the year or season in which service is not provided Where multiple points of doljvoy are involved and the contract rate of delivery is stated to be a maximum aggregate rate of delivery far all points,In dctamining the minimum seasonal or annual capacity charge due,if any,rho monthly capacity charges at the individual points of delivery shall be added together 13. Billing and PavmM 13.1 Western will normally issue bills to the Contractor for services furnished during the preceding month within ter(10)days alto the end of the billing period 132 If Weston is unable to issue timely monthly bill(s),Western may elect to tender estimated bill(s). Such estimated bill(s)shall be subject to the same payment provisions as final bill(s),and any applicable Austments will be shown on a subsequent monthly bill. 133 Payments of bills issued by Weston are due and payable by the Contractor before the close of business on the twentieth (20th)calendar day after the date of issuance of each bill or die next business duy thereafter If said day is a Saturday, Sunday, or Federal holiday Bills shall be considered paid when payment is received by Western.Bills will be paid electronically or via the Automated Clearing House method of payment unless a written request to make payments by mail is submitted by the Contractor and approved by Wostmn Should Western agree to accept payments by mail, these payments will be accepted as timely and without assessment of the charge provided for in Provision 14(Nonpayment of Bills in Full When Due)i f a United Stales 4 Metivoscptember 1,2007 Post Office first class mail postmark indicates the payment was mailed at least thine(3)calendar days before the due date 13.4 the parties agree that net billing procedures will be used for payments due Western by the Contractor and for payments due the Contractor by Western for the sale or exchange of electric power and energy, use of transmission facilities, operation and maintenance of electric facilities,and other services Payments due one party in any month shall be offset against payments due the other party in such month, and the resulting net balance shall be paid to the party in whose favor such balance exists: I'he parties shall exchange such reports and information that either party requires for billing purposes. Net billing shall not be used for any amounts due which are in dispute 14. Nonpayment ofBills in Full When Due, 141 Bills not paid in full by the Contractor by the duo date specified in Provision 13 (Billing and Payment)hereof shall bear a charge of fivc hundredths percent(0 05%)of the principal sum unpaid for each day payment is delinquent, to be added until tire amount due is paid In frill Western will also assess a fbc of twenty- five dollars($25 00)for processing a tale payment. Payments received will fast be applied to the charges for late payment assessed on the principal and then to payment of the principal 14.2 Western shall have the right,upon not less than fifteen(15)days advance written notice, to discontinue furnishing the services specified in the contract for nonpayment of bills in full when due,and to refuse to resume such services so long as any part of the amount due remains unpaid Such a discontinuance of service will not relieve the Contractor of liability for minimum charges during the time service is so discontinued The rights reserved to Western herein shall be in addition to all other remedies available to Western either by law or in equity,for the breach of any of the terms hereof. 15 Adiustments for fractional Billing Period. j The demand or capacity charge and minimum charges shall each be proportionately adjusted when ' 6actional billing periods are applicable under this contract A fractional billing period can occur. 1) at the I beginning or and of electric service;2)at the beginning of end of irrigation pumping service each year, 3) for a fiactional billing period under a new rate schedule; or 4) for fractional periods due to withdrawals of electric services_ The adjustment will be made based on the ratio of the number of hours that electric service Is available to the Contractor in such fiactional billing period, to the total number of hours in the billing period involved Energy billing shall not be affected by finetionai billing periods. I6 Adjustments inr Curtailments to Firm Service i 161 Billing adjustments will be made if firm electric service is interrupted or reduced because of conditions on the power system of the United States for periods of one(1)hour or longer in duration each Billing adjustments will not be made when such curtailment of electric service is due to a request by the Contractor or a discontinuance of electric service by Western pursuant to Provision 14(Nonpayment of Bills In Full When Due) For purposes of billing adjustments under this Provision.the term power system of the United States shall include t transmission facilities used under contract but not owned by the United States j t t 162 The total number of hours of curtailed frmr electric; service in any billing period shall be determined by adding: (1)the sum of the number of hours of interrupted electric service to(2)the product,of each i reduction, of: the number of hours reduced electric service and the percentage by which electric service was j reduced below tho delivery obligation of Western at the time of each said reduction of electric service The ' demand or capacity charge and applicable minimum charges shall each be proportionately adjusted in the ratio that S i BfPoctivo September 1,2007 The total number of hours of electric service determined to have been curtailed bears to the total number of hours in the billing period involved 163 the Contractor shall make written claim within thirty(30) days after receiving the monthly bill,for adjustment on account of any cuttailrnent of firm electric service, for periods of one(1)hoot or longer in duration each,alleged to have occurred that is not reflected In said bill. failure to make such written claim,within said thfrty-day(30-day)period,shall constitute a waiver of said claim. All curtailments of electric service,which are due to conditions on the power system of the United States, shall be subject to the terms of this Provision; Prsrvided,That withdrawal of power and energy undo the contract shall not be considered a curtailment of electric service N. POWTR SALES PROVISIONS, 17 R21olc pf Pirm Fleciric Service(Wholesale Sales for Resale), the Contractor shall not sell any firm electric power or energy supplied under the contract to any electric utility customer of the Contractor for resale by that utility customer,, Provided, Thai the Contractor may sell the electric power and energy supplied under the contract to its members on condition that said members not sell any of said power and energy to any customer of the member for resale by that customer 18 Distribution Principles, The Contractor agitos that the benefits of firm electric power or energy supplied under the contract shall be made available to Its consumers at rates that are established at the lowest possible level consistent with sound business principles, and that these rates will be established in an open and public marmot The Contractor further agrees that it will identify the costs of fhm eiechfe power or energy supplied under the contract and power from other sources to Its consumers upon request The Contractor will demonstrate compliance with the requirements of this Provision to Western upon request 19. Contract Subiect to Colorado River Compact. Where the energy sold under the contract is generated from waters ofthe Colorado Rivet system,the contract is made upon the express condition and with the express covenant that all rights under the contract shall be subject to and controlled by the Colorado River Compact approved by Section 13 (a) of the Boulder Canyon Project Act of December 21, 1928, 43 U S C $4 617a-e, and the parties to the contract shell observe and be subject to and controlled by said Colorado River Compact in the construction,management,and operation of the dams,reservoirs, and powerplants from which electrical energy is to be furnished by Western to Ilse Contractor under the contract,and in the storage,diversion,delivery,and use of water for the generatiun of electrical energy ; to be delivered by Western to the Contractor under the contract. j I V FACUMMS PROVISIONS. r 20 ]Design Ap roval. AU facilities,construction,and installation by the Contractor pursuant to the contract shall be subject !. to the approval of Western Facilities Interconnections shall normally confbum to Western's ow=t "Gencial i Requirements for fasten onnection;' in effect upon the signing of the contract document providing for each ; interconnection, copies of'which arc available from Western At feast ninety(90) dxys,unless otherwise agreed, s 6 Effective September 1,2007 prior to the date the Contractor proposes to commence construction or to incur an obligation to purchase facilities to be installed pursuant to the contract,whiehaver•date is the earlier,the Contractor shall submit, for The approval of Western,detailed designs, drawings, and specifications of the facilities the Contractor proposes to purchase, construct, and install. The Contractor assumes all risks for construction commenced or obligations to.purclmse facilities Incurred prior to receipt of approval fiom Western Western review and approval of designs and construction work in no way Implies that Western is certifying that the designs meet the Contractor's needs. 21 Inspection and 6suMtonm Western shall have the right to inspect the materials and work furnished by the Contractor,its agents, employees,and subcontractors pursuant to the contract. Such inspections shall be at reasonable times at the work site Any materials or work that Western determines is defective or not in accordance with designs, drawings,and specifications,as approved by Western,shall be replaced or modified,as directed by Western,at the sole expense of the Contractor before the new facilities are energized 22 As'13p-j Drawings. Within a reasonable dine, as determined by Western, after the completion of construction and Installation of facilities pursuant to the contmct,the Contractot shall submit to Western marked as-built prints of all Westem drawings affected by changes made pursuant to the contract and reproducible drawings the Contractor has prepared showing facilities of Western The Contractor's drawings ofWestem facilities shall use drawing title blocks,drawing numbers,and shall be prepared in accordance with drafting standards all as approved by Western Western may pteparo;revise,or complete said drawings and bill the Contractot if the Contractor fails to provide such drawings to Western within a reasonable time as determined by Western 23. figuipment Ownership Markers. 231 The Contractor shall identify all movable equpment and, to the extent agreed upon by the parties, all other salvageablo facilities constructed or Installed on the United States tight-of-way or in Western ; substations pursuant to the contract which are owned by the Contractor,by permanently affixing thereto suitable markers clearly identifying the Contractor as the owner ofsaid equipment and foci lities 232 if requested by the Contractor, Western shall identify all movable equipment and, to the : mama agreed upon by the parties, all other salvagmblo facilities constructed or installed on the Contractor's right-of-way or in the Contractor's substations pursuant to the contract which are owned by the United States,by t permanently affixing thereto suitable markers clearly identifying the United States as the owner of said equipment and facilities 24 Third-PartyUse of Facilities, i he Contractor shall notify Western of any proposed system change relating to the facilities governed by the contract or allowing third-party use of fhe facilities governed by the contract If Western notifies the Contractor that said system change will, as solely determined by Western, adversely affect the operation of Western's system the Contractor shall,at no cost to Western,provide a solution to said adverse effect acceptable to i i wester 25. ChangatoWestern Cgntrel Facilities. i if at any time during the term of the contract,Westem deto mines that changes or additions to control, relay, or communications facilities are necessary to maintain the reliability or control of Western's transmission , 7 , f Eilective September 1,2007 system, and said changos or additions are entirely or partially required because of the Contractor's equipment installed under the contract, such changes or additions shall, after consultation with the Contractor, be made by Western with all costs or a proportionate sharp of all costs, as determined by Western, to the be paid by the Contractor. Western shall notify the Contractor in writing of the necessary changes or additions and the estimated costs to be paid by the Contractor. If the Contractor fails to pay its share of said estimated costs,Western shall have the right,after giving sixty(60) days' written notice to the Contractor, to terminate the applicable facility installation provisions to the contract and require the removal of the Contractor's facilities 26. Modification of VJoem FoOlIftleL Western reserves the right, at any time, to modify its facilities. Western shall keep the Contractor informed of all planned modifications to Western facilities which impact the facilities installation pursuant to the contract. Western shall permit the Contractor to change or modify its facilities,in a mannct satisfactory to arid at no cost or expense to Western,to retain the facilities interconnectica pinsuant to the contract At the Contractor's option,Western shall cooperate with the Contractoi In planning alternate arrangements for service which shall be implemented at no cost or expense to Western. The Contractor and Western shall modify the contract, as necessary,to conform to the now facilities arrangements. 27 Ttansmission Rights. If the contract involves an installation which sectionalizes a Western transmission line, the Contractor hereby agrees to provide a transmission path to Western across such sectionalizing facilities at no cost or expense to Western Said transmission path shall be at least equal, in terms of capacity and reliability, to the path in the Western transmission line prior to the installation pursuant to the,contract; 28 Cottstrttction and Sgfcly Procedures. i 28 1 The Contractor hereby acknowledges that it is aware of the hazards inherent in high-voltage electric lines and substations, and hereby assumes full responsibility at all times for the adoption and use of necessary safety measures required to prevent accidental barm to personnel engaged in the construction, inspection, testing, operation, maintenance, replacement, or removal activities of the Contractor pursuant to the contract. The Contractor and the authorized employees,agents,and subcontractors of the Contractor shall.comply with all applicable safety laws and building and construction codes, including the provisions of Chapter 1 of the Power System Operations Manual,entitled Power System Switching Procedure,and the Occupational Safety and Health Administration ragtrlatlons, Iitlo 29 C.F R.§§ 1910 and 1926,as amended of supplemented In addition to the safety program required heroin, upon request of the United States, the Contractor shall provide sufficient information to demonstrate that the Contractor's safety program fs satisfactory to the United States 282 The Contractor and its authorized employees, agents, and subcontractors shall faroularize i themselves with the location and character of all the transmission facilities of Western and interconnections of othas relating to the work performed by the Contractor under the contract Prior to starting any construction, inataQation,or removal work, the Contractor shall submit a plan of procedure to Western which shall indicate the sequence and method ofperforming the work in a safe manner No work shall be performed by the Contractor,its employees,agents,or subcontractors until written authorization to proceed is obtained from Wester I 283 At all times when the Contractor, its employees, agents, or subcontractors are performing activities of any type pursuant to the contract, such activities shall be under supervision of a qualified employee, agent, or subcontractor of the Contractor who shall be authorized to represent the Contractor in all matters pertaining to the activity being performed. The Contractor and Western will keep each other informed of the ! names of thoh designated representatives at the site j i 8 I 3 Effective September 1,2007 284 Upon completion of its work,the Contractor shall remove from the vicinity of the right-of- way of the United States all buildings,rubbish,used materials,concrete forms,and other like material belonging to the Contractor or used under tho Contractor's direction, and in the ovent of failure to do so the same may be removed by Western at the expense of the Contractor 28.5 In the event the Contractor,its employees,agents,or subcontractors fail to comply with any requirement of this Provision, or Provision 21 (inspection and Acceptance) herein, Western or an authorized representative may issue an order to stop all or any part of the work until such time as the Contactor demonstrates compliance with the provision at issue. The Contractor, Its employees, agents,or subcontractors shall make no claim for compensation or damages resulting from such work stoppage 29 Environmental Comnlianao. Facilities installed under the contract by any ply shall be oenstructed, opaated, maintained, replaced,transported,and reproved subject to compliance with all applicable laws,including but not limited to the National Historic Preservation Act of 1966, 16 U S.0 §§470x-6,the National Environmental Policy Act of 1969, 42 U.S C.If 4321.4347, the Endangered Species Act of 1973, 16 U S.0 §§ 1531-1544, and the Archaeological Resources Protection Act of 1979, 16 U S C §§ 470asA70nun, and the regulations and executive orders implementing these laws, as they may be amended or supplemented, as well as any other existing or subsequent applicable laws,regulations,and executive orders 30 Responsibility for Regulated Materials When either party owns equipment containing regulated material located on the other party's substation, awitchyartf,right of-way,or other property,the equipment owner shall be responsiblo for all activities related to regulated materials in such equipment that are necessary to meet the requirements of the Toxic Substimcm Control Act, 15 U S C. §§ 2601-2692, the Resource Conservation and Recovery Act, 42 U S C §§ 6901-6992k,the Comprehensive Environmental Response,Compensation,and Liability Act of 1980,42 US C §§ 9601-9675,the Oil Pollution Act of 1990,33 U.S.C.If 2702-2761,the Clean Water Act,33 U-S C.§§ 1251.1387, the Safe Drinking Water Act,42 U S C.If 300f J26,and the regulations and executive orders implementing these laws,as they may be amended or supplemented,and any other existing or subsequent applicable laws,regulations, and executive orders. Each patty shall label its equipment containing regulated material in accordance with appropriate laws and regulations If the party owning the equipment does not perform activities required under appropriate laws and regulations within the time frame specified therein,the other patty may perform or cause to I be performed the required activities after notice to and at the solo expanse of the party owning the equipment , r V1 OTM PROVISIONS. I 31. Authorized Rcm=entatives of the Parties Each patty to the contract,by written notice to the other,shall designate the representatives)who is (are)authorized to act in its behalf with respect to those matters contained in the contract which are the Rmetions and responsrbilities of the authorized representatives of the parties- Each party may change the designation of its authorized representative(s)upon oral notice given to the other,confirmed promptly by written notice. ,r i Y 9 a t 0 ' t i i Effective Soptembar 1,2007 32 Effect of Section Heradmnas. Section headings or Provision titles appearing in the contract or these General rows Contract Provisions are inserted for convenience only and shall not be construed as interpretations of text. 33 92eratinaGuidelin and_Procedums. 1 he parties to the contract may agroo upon and put into affect from time to time,such other written guidolines and procoduros as tray be required in order to establish the methods of operation of the power system to be followed in the performance of the contract 34 Uncontrollabic Ponces. Neither party to the contract shall be considered to be in default in performance of any of its obligations under,the contract,except to make payment as specified in Provision 13 (Billing and Payment)herein, when a failure of performance shall be due to an uncontrollable force The term"uncontrollable force"means any cause beyond the control of the party affected, including but not restricted to, failure of or throat of failure of facilities, flood, earthquake, storm, fire, lightning, epidemic, war, dot, civil disturbance or disobedience, label dispute, labor or material shortage,sabotage, restraint by court older or public authority and action or nonaction by, or failure to obtain the accessary authorizations or approvals from, any governmental agency or authority, which by exercise of due diligence such party could not reasonably have been expected to avoid and which by exorcise of due diligence it shall be unable to overcome Nothing contained heeein shall be construed to require a party to settle any strike or labor disputo in which it may bo involved Either party tendered unable to fulfill any of its obligations under the contract by reason of an uncontrollable force shall give prompt written notice of such fact to the other patty and shall exercise due diligence to remove such inability with all reasonable dispatch 35 Uabilily. 351 Ilse Contractor hereby agrees to indemnify and hold harmless the United States, its employees,agents,or contractors from any loss or damago and from any liability on account of persoital ELM' , death,or property damage or claims for personal injury,dam,or property damage of any nature whatsoever and by whomsoever made arising out of the Contractors', its employees', agents', or subcontractors' construction, operation,maintenance,or raplacement activities under the contract. 35.2 The United States is liable only fir negligence on the pan of its offrtxss and employees in accordance with the Federal Tort Claims Act,28 U S C §§ 1346(b), 1346(c),2401(b),2402,2671, 2672, 2674- 2680,as amended of supplemented 36. Cooperation of Contrecdng Pmiies. If,in the operation and maintenance of their respective power system or electrical equipment and the utilization thereof for the purposes of the conntract, it becomes necessary by reason of any emergency or extraordinary condition lot alther party to request the other to furnish personnel,materials,tools,and equipment for the accomplishment that eof,the party so requested shall cooperate with the other and mridet such assistance as the patty so requested may detcrmine to be available. The party making such request,upon receipt of ptopely itculzed bills from the other party, shall rtimbuise the party rendering such assistance for all costa ptoperly and reasonably incurred by it in such performance, including administrative and general expenses, such costs to be determined on the basis of curtent charges or rates used in its own operations by rite party mrxdeting assistance. •Issuance and payment of bills for services provided by Western shall be in accordance with Provisions 13(Billing 10 HilbtM September 1,2rM7 and Payment) and 14 (Nonpayment of Bills in Full When Due) herein Wester shall pay bills issued by the Contractor for services provided as soon as the necessary vouchers can be prepared which shall normally be within twenty(20)days 37 Transfer of fnio—mst in Contract gunge ig_Prefemence Status. 371 No voluntary transfm of the contract or of the rights ofthe Contractor under the contract shall be made without the prior written approval of the Administrator of Western Any voluntary transfer of the contract or-of the rights of the Contractor under the contract made without the prior written approval of the Administrator of Wester may result in the termination of the contract;P Or vided That the written approval of the Administrator shall not be unreasonably withheld;Provided further.That if the Conuaetot operates a project financed in whole or ht part by the Rural Utilities Service,the Contractor may transfer or assign its Interest in the contract to the Rural Utilities Service or any other doparttnent or agency of the Federal oovernment without such prior written approval;Provided Mtherr Ihat any successor to or assignee of the rights of the Contractor,whether by voluntary transfer,judicial sale, foreclosure sale, or otherwise, shall be subject to all the provisions and conditions of the conttact to the same extent as though such successor or assignee were the original Contractor under the contract; and, Provided itnther, That the execution of a mortgage or trust deed, or judicial or foreclosure sales made then:under,shall not be deemed voluntary transfers within the meaning of this Provision 372 The Contractor shall maintain its status as an entity eligible for preference in Western's sale of Federal power pursuant to Reclamation law,as amended and supplemented 37.3 Western shall give the Contractor written notice of Western's proposed determination that the Contractor has violated Provision 3 71 and Western's proposed action in response to the violation 37.4 The Contractor shall have 120 days after receipt of Western's notice provided under Provision 37 3 to submit a written response to Wcstem T'ho Contractor may also make an Oral presentation to the Administrator during this 120-4ay period. 37.5 At any time during this process, the Contractor and Westem may agree upon corrective action to resolve Western's proposed determination that the Contractor is in violation of Provision 37 I 376 Within 30 days of receipt of the Contractor's written response provided underProvision 37 41 Western will notify the Contractor In writing of its final decision the Administrator's wtitten notice will include the intended action, the effective date thereof;and the reasons for taking the intended action Implementation of the Adminishator's action shall take place no earlier than 60 days from the Contractor's receipt of such notice 377 Any successor to Western shall be subject to all the provisions and conditions of the contract i to the same extent as though such successor were an original signatory to the contract. ; 378 Nothing in this Provision shall preclude any right to judicial review available to the Contractor undcrFedwal law i' i ,il Effective September 1,2007 38 Choice of LAw and Forum. Federal law.shail control the obligations and procedures established by this contract and the perfomrarrca and enforcement thereof. The forum for litigation arising from this contract shall exclusively be a Federal court of the United States,unless the parties agree to pursue alternative dispute resolution. ' 39. Waivers• Any waivers at any time by either party to the contract of Its tights with respect to a default or any other matter arising under or in connection with the contract shall not be deemed a waiver with respect to any subsequent default or matter. 40. Notices• Any notice, demand, or request specifically required by the corriract or these Provisions to be in writing shall be considered properly given when delivered in person or sent by postage prepaid registered or certified melt,commercial delivery scyvice,facsimile, electronic,prepaid telegram, or by other means with prior agiven tent of the parties, to each patty's authorized representative at rho principal ofTices of the patty The designation of the person to be notified may be changed at any time by similar notice Where facsimile Or- electronic means 81v utilized for any communication coveted by this Provision, the sending party shall keep a contemporaneous record of such communications and shall verify receipt by the other party. 41 Ctmtinrzett Utnoa A2prooriations end Authorization. 41 1 Where activities provided for in the contract extend beyond the cuuent fiscal year,continued expenditures by lire United States arc contingent upon Congress making the necessary appropriations required for the continued performance of the United States' obligations under the contract in case such appropriation is not 1 made,the Contractor hereby releases the United States from its contractual obligations and fivra all liability due to i the failure of Congress to make such appropriation i 412 In order to receive and expend funds advanced fiom the Contractor necessary for the ' contiutted performance of the obligations of the United States under-the contract,additional authorization may be regained In case such authorization is not received,the Contractor hereby releases the United States from those contractual obligations and from all liability due to the lack of such authorization 42 r....A.O eo rose COtinpent Fels. l The Contractor warrants that no person of selling agency has been employed of retained to solicit or secure the contract upon an agreement or understanding for a commission, percentage,brokerage,or contingent fee, excepting bons fide employees or bona fide established commercial or selling agencies maintainer) by the Contractor for the purpose of securing business, For breach or violation of this warranty,Western shall have the right to annul the contract without liability of in its discretion to deduct Dom the contract ptico or consideration the full amount of such commission,percentage,brokerago,or contingent fee i i 'l2 3 Effective September 1,2007 43. Contract Work Hours and Safety Standards. The contract, to the extent that it is of a character specified in Section 103 of the Contract Work Hours and Safety Standards Act(Act),40 U S.C. §3701,as amended or supplemented,is subject to the provisions of the Act,40 U S.C.§§3701-3708,as amended or supplemented,and to regulations promulgated by the Secretary of Labor pursuant to the Act_ 44. Eaual Onoort MAY Employment practices Section 202 of Executive Ostler No 11246, 30 Fed. Reg. 12319 (1965), as amended by Fx=tive Order No- 12086,43 Fed.Reg.46501 (1978),as amended or supplemented,which provides,among other things, that the Contractor will not discriminate against any employee or applicant for employment because of race,color, religion,sex,or national origin, is incorporated herein by reference the same as if the specific language had been written into the contract, except that Indian Tribes and tribal organizations may apply Indian preference to the extent permitted by Federal law_ 45. Use of Convict Labor, The Contractor agrees not to employ any person undergoing sentenee of imprisonment in performing the contract except as provided by 18 U S.C. § 3622(c), as amended or supplemented, and Executive Order No. 11755,39 Fed.Reg 779(1973),as amended or supplemented r t 1 t 1 i i , i i t t 13 I' t Attachment B Ownership,License,and Facilities Cost and Maintenance Responsibility L Real Property Ownership of Existing and Future Joint Use Substations. Background— Fort Collins and Platte River do now or will jointly use all of the below-referenced substations regardless of ownership in order to provide electric service to Fort Collins cust md�s. Joint use is defined as use by both Platte River and Fort Collins where both entities have transspri s�s on and/or distribution facilities on a particular substation site. The substations under joint use as�&Wribed in this Appendix are generally referred to as"Joint Use Substations." In each substation dwiuA b�yivoit Collins,Fort Collins has installed or will install distribution facilities and other associated equipment and Platte River has installed or will install transmission facilities and other assoa�aWe Equipment neces*ary to provide electric service to Fort Collins customers. In the Dixon Creek su�s_ta�ton,Fort Collins has in*-lied or will install distribution facilities and other associated equipment �jssary to provide electne-service to Fort Collins customers. The Overland Trail substation m caitve may be reactivat-"4 'v �� �:.. A A. On the date of this agreement,Fort iilns owns the real prth that contains the following Joint Use Substations: T� • Harmony(located near the intersectign f HarmoTA�^�Road and'Timberline) iSTC� .l � � 4�_ • Linden Tech(t 1'e��dWJthe inters ec on of CallegeAvenue and' Linden Center Drive) f,", - ��}..I y`'\ , -�$E ^�y�♦- . 1YY"S p RiSl.i '1u • Drake(Iocateds e in_, eehon of D .e�lt d�and Co1I q e Avenue) • Richard Lake(loo'ed west ofrJAnheuser B facility) • Overland Trail(I ear� a intersection of,Overland Trail and Mulberry) • Timclie fined erk(located�near theme htton of T�iyrnberline Road and Prospect Road) V t5,j.'i 'Self, 't S �Y • tfortner(located:ne?ar the intersection of olAvenue and Trilby Road) .�., 1 . These substatian�s as well as Fanyture To ;Use Substations located on real property owned by Fort Collins will iefened to hereaei`?8s"Fort Collins Sites. B. On the date of this agreement,Plate River owns the real property that contains the Dixon Creek Joint `.4 3 Use Substation which isltocated e intersection of Overland Trail and Drake Road This substation as well as any future Joint Use Substation located on real property owned by Platte River will be referred to hereafter as"Platte River Sites" C. If service expansions or changes in system configuration require the development of one or more Joint Use Substation locations or the elimination of any existing Joint Use Substation locations,the terms and conditions of such expansion or elimination of a Joint Use Substation as agreed to by the parties must be documented in a written addendum to this Agreement. 1 H. Licensed Facilities. A. In the Transmission Facilities Agreement dated February 22, 1980,Fort Collins gave Platte River license to enter and utilize multiple transmission and substation facilities. That agreement is terminated pursuant to Article 12(b)as of the date of the Amended Contract for the Supply of Electric Power and Energy. In lieu of the Transmission Facilities Agreement,at each Joint Use Substation the owner of the real property licenses the property necessary for the placement of the fixtures necessary to provide service to Fort Collins,referred to herein as"Licensed Facilities",as well as all necessary rights of access,subject to the terms of any easements encumbering said property,through the term of this Agreement unless such fixture is permanently removed from service or replaced prior to teritfieation. The party that does not ,i't own the real property in a given substation shall have the right to,use the Licensed Facilities in whatever manner the parties shall determine to be the most effective to ee.' obligations under this Agreement .'."_:;�011- and the local needs of Fort Collins and to make whatever m Ct�cati&' sstiimprovements,repairs and replacements the parties shall determine to be neces We relibservice. Neither party shall permit any lien or encumbrance to attach to the Li ed;Facili 'es and the;Ucensed party shall vacate the Licensed Facilities as soon as reasonably possible ati a termination of this A-"element. If any arrangements different from those set forth herein are required for any Joint Use Substation,the special A requirements will be documented in an addendum to this Agreement: B. In addition to the license for use of theoiatiUse Substati or Collins hereby licenses Platte River the following transmission facilities,also eeferred;to)as License kilities ,owned by Fort Collins through the term of this Agreement unless s transmii ion facility4vpermanently removed from service or replaced prior to termination ; y .c a:.? �. 1. 115kv transmission line ixo that runs fiomgDn Creek<Substation to Drake Substation. 2 115kv transmissionl�that runs from"Timberline Park Substation to Drake Substation. r .Z�� 1 f . .Y.li J• Platte Ri r sh�1f ma bftateveram _ ficah`ons,mzprovements,repairs and replacements it shall deem necessaryto these Licensedi Facilities described m Secaion II.B. in order to provide reliable service to Fort Collins�P.„,� C. Any wntten;notice from Fort C.: ins to Pl to River requesting additional capacity at an existing point of delivery or the establishment of(a new point of delivery shall be license to Platte River for its facilities to occupy the real pry"operty of Fort Collins in a Joint Use Substation during the period in which that point of delivery is used by Pya1 wRr�vei•._fof the delivery of power and energy. Also,the facilities contained in a new Joint Use Substation wil l'icensed Facilities in the manner described in and consistent with the terms of this Appendix B. IIL Substation Cost and Maintenance Resnonsibiiity. The following describes the substation cost and maintenance responsibilities for Fort Collins and Platte River in Joint Use Substations. The following description of the parties' responsibilities will also apply to any future substations that may be constructed by Fort Collins and become Joint Use Substations. If arrangements different from those set forth herein are required for any Joint Use Substation, the special requirements will be documented in an addendum to this Agreement and attached hereto. 2 The real property owner of a particular Joint Use Substation site will install,maintain,and be responsible for the following: • The substation site with sufficient space for both the Fort Collins and Platte River equipment — • Grading and surfacing within the fenced area • Access right-of-way and roads • Perimeter substation fence • Landscaping and maintenance of any areas outside the fenced area • Substation yard lighting • Substation yard below grade grounding system ,u Fort Collins will furnish own,and maintain at�i expense the oflowing items in any Joint Use Substation: • The 230 of 115kV/13.8kV transfo ers,switchgear feeder circutis, associated foundations and oil containment duct;`beaks,conduits,aa�n&WI cabling,relays, SCADA,and controls req ed to operate sushibution equipment's • All foundations requu l Fort CoIlms�u ent listed above M=� NA • The Fort Collins switchgea�r/•contral,•wilding F :'.-�:,. £. • The DC power supply systemd assoetafecl equt for 15KV distribution facilities • Substationeite`ip` electn 31rnce ce entrance equipment • One half the cost ofyanX electronic ubstatton s .,deemed by both parties to be approliri';for the 10—on of the§uf staftion Platte River will furnish owJi;h,_ mtam ai rts eXpense the following items in any Joint Use • All transmissto, equipmegt requu ed at the appropriate voltage class to deliver electric capacity and kcal y to Fo`tt:Gollins's facilities including the transmission line transition e ��, Y required structures,breakswitches;bus relays,meters and associated controls wired to dperate such transmission equipment �� t,+ • All izou6dations r . for the Platte River equipment listed above .ry."\ .e�`��, • The Platte Rivet control building • The DC powejupply system and associated equipment for 115/203KV transmission facilities • PRPA control building service entrance equipment • Communication connections for use by both Fort Collins and Platte River • A remote terminal unit(RTU), for shared use to transmit substation information to both Fort Collins and Platte River when required • One half the cost of any electronic substation security deemed by both parties to be appropriate for the location of the substation • Weed control 3 ATTACHMENT 12 Organic Contract and Power Supply Contract that were approved by the Fort Collins City Council in March 2009, with modifications suggested by PRPA PLATTE RIVER POWER AUTHORITY ORGANIC CONTRACT { TABLE OF CONTENTS 1 . 0 EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 2.0 ESTABLISHMENT OF PLATTE RIVER POWER AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 2. 1 PURPOSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 2.2 FUNCTIONS, SERVICES, OR FACILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I . . . . . . . . . 15 2.3 BOARD OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2AOFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 2.5 INDEMNIFICATION OF OFFICERS AND DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2. 6 TERM OF CONTRACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 . . . . . . . . . . . . . . . . . . 15 2. 7 ASSETS AND PROPERTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2. 8 DISTRIBUTION OF ASSETS UPON TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2. 9 SEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2. 10 CONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 2. 11 CHECKS, DRAFTS, AND OTHER FINANCIAL DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 2. 12 DEPOSITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 2. 13 FISCAL YEAR , , , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.14 PRINCIPAL PLACE OF BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3 . 0 GENERAL POWERS , . I I I I I a a I 1 4 1 1 1 0 0 0 & 4 a 0 6 0 , a 6 , 4 * a a 1 17 4. 0 POLITICAL SUBDIVISION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 5 . 0 REVENUE BONDS , , I I I I I I I I I I I 1 1 6 . . 0 0 0 4 , a 21 6 . 0 DEBT NOT THAT OF MUNICIPALITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 TO FILING OF CONTRACT . . , . , , , , too * * * * #21 8 . 0 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 9 . 0 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 10.0 DUPLICATE ORIGINALS . 0 6 1 1 0 * 0 * 0 4 a a a * 0 0 0 a . . . . . . . . . . . . . , a . . . . . . . . . . . . . . a 1 9 0 0 0 a a a a a a . . . . . . . .22 i AMENDED AND RESTATED ORGANIC CONTRACT ESTABLISHING PLATTE RIVER POWER AUTHORITY AS A SEPARATE GOVERNMENTAL ENTITY THIS CONTRACT, originally made and entered into as of June 17, 1975, and amended February 14, 1977, and July 27, 1978, and amended and restated the 31st day of March 1980, and the 1st day of July, 1998, and as further amended and restated on this day of 2009, by the parties to this Contract which are: TOWN OF ESTES PARK, COLORADO, a municipal corporation of the State of Colorado ("Estes Park" ), CITY OF FORT COLLINS, COLORADO, a municipal corporation of the State of Colorado ("Fort Collins"), CITY OF LONGMONT, COLORADO, a municipal corporation of the State of Colorado ("Longmont" ), and CITY OF LOVELAND, COLORADO, a municipal corporation of the State of Colorado ("Loveland") . When specificity is not required, the municipal corporations which are parties hereto will hereinafter be individually referred to as "Municipality" and collectively as "Municipalities . " WITNESSETH : WHEREAS, Estes Park owns and operates a municipal electric system which supplies electric power and energy at retail to users located within the town limits of Estes Park and the adjacent service area of the Estes Park electric system; and WHEREAS, Fort Collins owns and operates a municipal electric system which supplies electric power and energy at retail to users located within the city limits of Fort Collins; and WHEREAS, Longmont owns and operates a municipal electric system which supplies electric power and energy at retail to users located within the city limits of Longmont and the adjacent service area of the Longmont electric system; and WHEREAS, Loveland owns and operates a municipal electric system which supplies electric power and energy at retail to users located within the city limits of Loveland and the adjacent service area of the Loveland electric system; and WHEREAS, the Municipalities on June 17, 1975, established, pursuant to the provisions of C . R.S. § 29-1-204, as then enacted, Platte River Power Authority (the "Authority"), as a separate governmental entity and successor to a nonprofit corporation, to be the instrumentality Organic Contract Amended and Restated 03/ 03/ 2009 Page 1 of 23 of the Municipalities and as such successor, to continue to supply their wholesale electric power and energy requirements; and WHEREAS, during 1998 the Municipalities contracted with one another to establish, pursuant to the provisions of C . R.S. § 29-1-203, the Authority as a separate legal entity and multi-purpose intergovernmental authority to provide designated functions, services, or facilities lawfully authorized to any combination of two or more of the Municipalities provided that such function, service, or facility constitutes an "enterprise" as defined in subsection 2(d) of Article X, Section 20 of the Colorado Constitution; and WHEREAS, increased complexity and risk in the electric utility industry have created the need to enhance utility image and customer loyalty, the Municipalities wish to clarify that the Organic Contract authorizes the Authority to engage in a broad range of services which are incidental to or supportive of the Municipalities' continued ability to provide electric power and energy services to their customers on a competitive basis; and WHEREAS, the Municipalities acting through the Authority wish to ensure a source of electric power and energy that is reliable, cost-effective, and eleetFieity that is generated in a manner that reflects good stewardship of the environment; and WHEREAS, good stewardship of the environment requires that the Authority consider environmental factors as an integral component of planning, design, construction and operational decisionsit is the intent ef the Munieipalities that the Att�erity demonstrate its eemmitment to SAP.; %Xardship thr-augh practices incorporated into its fundamental ep,,..�,s• and WHEREAS, the Authority's beard of £ireeters-adepted-neseH#en 2008 dir-eefing-the Autherrt�s-rener-al Manager- to develop a plan eudin ing how the Authority proposes teachieve the goals of the Eelerude Climate Ar..tfer.1zan and to Y.Yerk toward updated Envir-enrnental Pokey�td Principles deeument whieh r-equir-es the ^ . . ,.h. .-ity to consider environmental--factors as an integral part a€-planning,-design, eenstfRe-tien-and Organic Contract Amended and Restated 03/ 03/ 2009 Page 2 of 23 i II i commitment te pr-evide eleetFie peyf%xer- and energy with reliable, eest effeefive eflf.afgy r-esetir-ee epti ns i n m .. .�a .. er that re fl ets hood stet .tea .-dship of the a nt -.n Vruvaw aaa a uluauaa. L uaua at.a at.ttiT , LLVV N1 a.V. VVaLVLIJ µtill enhance\. the JUJaNll[UCT region; and WHEREAS, the Municipalities now wish to further amend the Organic Contract, to extend its term and to restate the amended provisions thereof in a single updated document. NOW, THEREFORE, the Municipalities do hereby amend and restate the Organic Contract, originally executed June 17, 1975, and subsequently amended, so that as hereby amended and restated it provides, and the Municipalities do agree, as follows : 1 .0 EFFECTIVE DATE This Contract, as hereby amended and restated, shall become effective when it has been duly executed by all of the Municipalities . 2.0 ESTABLISHMENT OF PLATTE RIVER POWER AUTHORITY As of June 17, 1975, the Municipalities established a separate governmental entity, to be known as Platte River Power Authority, to be used by the Municipalities to effect the development of electric energy resources and the production and transmission of electric energy in whole or in part for the benefit of the inhabitants of the Municipalities . As of July 1, 1998, the Municipalities also established the Authority as a separate governmental entity and multi-purpose intergovernmental authority to provide additional designated functions, services, or facilities lawfully authorized to any combination of two or more of the Municipalities, provided that such function, service, or facilities constitutes an "enterprise" as defined in subsection 2(d) of Article X, Section 20 of the Colorado Constitution. 2.1 PURPOSES Organic Contract Amended and Restated 03/ 03/ 2009 Page 3 of 23 iI f I The purposes of the Authority are to conduct its business and affairs for the benefit of the Municipalities and their inhabitants : (i) to provide the electric power and energy requirements of the Municipalities and the retail customers within the Municipalities in a reliable, cost-effective manner that reflects good stewardship of the environmen and sustainability; (ii) to engage in business activities related to the provision of electric power and energy services and demand side resources which the Board determines are likely to enhance the competitive position of the Authority or the Municipalities; and (iii) to provide any additional designated function, service, or facility lawfully authorized to any combination of two or more of the Municipalities, provided that these constitute an "enterprise" as defined in subsection 2(d) of Article X, Section 20 of the Colorado Constitution. A particular function, service, or facility shall be treated as designated as a separate purpose under clause (iii) of the previous sentence only upon receipt by each Municipality which is designating the function, service, or facility to also be performed by the Authority of (a) a resolution adopted by unanimous vote of the Board of Directors of the Authority designating the function, service, or facility as a purpose to also be jointly exercised by the designating Municipalities through the Authority and (b) opinions of counsel to each Municipality which is designating the function, service, or facility to also be performed by the Authority setting forth the extent to which the designated function, service, or facility is lawfully authorized by such designating Municipality; and (c) an opinion of the Authority' s bond counsel to the effect that the designated function, service, or facility Organic Contract Amended and Restated 03/ 03/ 2009 Page 4 of 23 constitutes an "enterprise' as defined in subsection 2(d) of Article X, Section 20 of the Colorado Constitution. 2.2 FUNCTIONS, SERVICES, OR FACILITIES The functions, services, or facilities to be provided by the Authority are: The supplying of the electric power and energy requirements of the Municipalities and retail customers within the Municipalities; and, the provision of any additional function, service, or facility, by means of (i) acquiring, constructing, owning, reconstructing, improving, rehabilitating, repairing, operating and maintaining electric generating plants, transmission systems and related facilities, or interests therein, for the purpose of producing, transmitting and delivering to the Municipalities, electric power and energy to the extent of their requirements, including renewable energy requirements and demand side resources; (ii) purchasing electric power and energy from electric utilities and other producers of energy, as required to supply the Municipalities and perform its other obligations; (iii) selling at wholesale to the Municipalities all of the electric power and energy produced or purchased by the Authority which the Municipalities require; (iv) selling, exchanging and otherwise disposing of, under the most economically advantageous terms and conditions obtainable, any surplus power and energy or transmission capacity which the Authority owns, produces or purchases; Organic Contract Amended and Restated 03/ 03/ 2009 Page 5 of 23 (v) developing electric energy resources (including renewable sources) and producing and transmitting electric energy in whole or in part for the benefit of the inhabitants of the Municipalities; (vi) developing products and services to improve the efficiency of generation, transmission and use of electrical energy, in orderaftd to minimize the associated environmental impacts; (vii) acquiring, constructing, owning, purchasing, selling, exchanging or otherwise disposing of, reconstructing, improving, rehabilitating, repairing, operating, and maintaining assets, infrastructure, plants, systems, and related facilities or interests therein; (viii) developing products, services, infrastructure, and resources related to such function, service, or facility for delivery to appropriate markets in whole or in part for the benefit of the inhabitants of the Municipalities; and (ix) on termination of this Contract to vest in the Municipalities all right, title and interest of the Authority in or to all of its property and assets . 2.3 BOARD OF DIRECTORS The governing body of the Authority shall be a Board of Directors in which all legislative power of the Authority is vested. 2.3 . 1 NUMBER The number of Directors shall be eight (8) . 2.3 .2 SELECTION Organic Contract Amended and Restated 03/ 03/ 2009 Page 6 of 23 Each Municipality shall be represented by two (2) members on the Board of Directors of the Authority, who shall be designated or appointed as follows: (i) MAYORS The Mayor of each of the Municipalities is hereby designated and shall serve as a member of the Board of Directors of the Authority contemporaneously with service as Mayor; provided, however, that any Mayor may designate some other member of the governing board of such Municipality to serve as a Director of the Authority in place of the Mayor. (ii) APPOINTED DIRECTORS The governing body of each of the Municipalities shall appoint one (1) additional member to the Board of Directors. Appointed Directors shall be selected for judgment, experience, and expertise which make that person particularly qualified to serve as a Director of an electric utility. 2.3 .3 TERM The term of office of the Directors of the Authority shall be as follows: (i) MAYORS The Mayor of each Municipality, or the member of the Municipality's governing board designated by the Mayor, shall serve as a Director of the Authority for the same period of time that the Mayor serves as Mayor of that Municipality. Organic Contract Amended and Restated 03/ 03/ 2009 Page 7 of 23 APPOINTED DIRECTORS The term of the Appointed Director for Estes Park shall expire on December 31 , 2011, the term of the Appointed Director for Fort Collins shall expire on December 31, 2008, the term of the Appointed Director for Longmont shall expire on December 31 , 2010, and the term of the Appointed Director for Loveland shall expire on December 31, 2009. Each successor shall be appointed for a term of four years from the date of the expiration of the term for which the predecessor was appointed . 2.3 .4 REMOVAL Any Director appointed by the governing board of a Municipality may be removed at any time by such governing board, with or without cause . A Mayor will be automatically removed as a Director upon vacating the office of Mayor, and a member of the Municipality' s governing board designated to serve in place of a Mayor may be removed at any time by the Mayor, with or without cause . 2.3 .5 VACANCIES A vacancy occurring in the directorship of an Appointed Director, whether such vacancy be the result of resignation, death, removal or disability, shall be filled by the appointment of a successor Appointed Director by the governing body of the Municipality which appointed the Director whose office has become vacant. In the case of a vacancy in the directorship of a Mayor or his designee from any Municipality, the vacancy shall be filled by the new Mayor or the Mayor' s designation of some other member of the governing board of that Municipality. Organic Contract Amended and Restated 03/ 03/ 2009 Page 8 of 23 2.3 . 6 COMPENSATION Directors shall not receive compensation for their services, but Directors may be reimbursed their actual expenses for attendance at meetings of the Board of Directors and for expenses otherwise incurred on behalf of the Authority . 2 .3 . 7 ANNUAL MEETINGS An annual meeting of the Board of Directors shall be held within the first 120 days in each year at such place in Fort Collins, Colorado, as shall be designated in the notice of the meeting, to elect officers, to pass upon reports for the preceding fiscal year, and to transact such other business as may come before the meeting. Failure to hold the annual meeting at a designated time, or failure to hold the annual meeting in any year, shall not cause a forfeiture or dissolution or otherwise affect the Authority . 2.3 .8 REGULAR MEETINGS The Board of Directors may provide for the time and place for the holding of regular meetings by resolution without notice to Directors other than the resolution adopting the meeting schedule. 2 .3 . 9 SPECIAL MEETINGS Special meetings of the Board of Directors may be called by the Chairman or any Director and it shall thereupon be the duty of the Secretary to cause notice of such meeting to be given as hereinafter provided . Special meetings of the Board of Directors shall be held at such time and place within the State of Colorado as shall be fixed by the Chairman or the Director calling the meeting. Organic Contract Amended and Restated 03/ 03/ 2009 Page 9 of 23 i 2.3 . 10 NOTICE OF MEETINGS Written notice of the annual or of any special meeting of the Board of Directors shall be delivered to each Director not less than seven (7), nor more than thirty-five (35), days before the date fixed for such meeting, either personally or by mail, by or at the direction of the Secretary, or, upon his/ her default, by the person calling the meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the Director at his/ her address as it appears on the records of the Authority, with postage prepaid . 2.3 . 11 WAIVER OF NOTICE Whenever any notice is required to be given to any Director of the Authority under the provisions of the law or this Contract, a waiver thereof in writing signed by such Director, whether before or after the time stated therein, shall be equivalent to the giving of such notice . Attendance of a Director at any meeting of the Board of Directors shall constitute a waiver by such Director of notice of such meeting except when such Director attends such meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened . 2.3 .12 QUORUM A majority of the number of Directors then in office shall constitute a quorum for the transaction of business; provided that, if less than a majority of the Directors then in office is present at a meeting, a majority of the Directors present may adjourn the meeting; and, provided further, that the Secretary shall notify any absent Directors of the time and place of such adjourned meeting. The act of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors . Organic Contract Amended and Restated 03/ 03/ 2009 Page 10 of 23 ,I 2.3 . 13 ATTENDANCE BY TELECONFERENCE Directors may attend and fully participate in any meeting through electronic teleconferencing . 2.3 .14 VOTE IN CASE OF DEADLOCK In the event the Board of Directors, at a meeting at which a quorum is present, is deadlocked and unable to obtain a majority vote of the Directors present concerning a matter being considered for action, any Director may require a "Weighted Vote. " A "Weighted Vote" shall then be taken with each Director's vote being given one half the proportion which: (i) the dollar amount of electric power and energy purchased from the Authority during the twelve-month period ending with the close of the billing period for the month two months prior to the month of the deadlocked meeting and paid for by the Municipality appointing such Director bears to; (ii) the dollar amount of all electric power and energy purchased from the Authority and paid for by the Municipalities during said twelve-month period . The act of a majority of the "Weighted Vote" shall be the act of the Board of Directors. 2.3 . 15 DUTIES The duties of the Board of Directors shall be : (i) To govern the business and affairs of the Authority. Organic Contract Amended and Restated 03/ 03/ 2009 Page 11 of 23 i To exercise all powers of the Authority. (iii) To comply with the provisions of parts 1 , 5, and 6 of Article 1 of Title 29, C. R.S. (iv) To adopt a fiscal resolution, which complies with statutory and other restrictions imposed by law on the affairs of the Authority, to govern the financial transactions of the Authority, including the receipt, custody, and disbursement of its funds, securities, and other assets, and to provide for the services of a firm of independent certified public accountants to examine, at least annually, the financial records and accounts of the Authority and to report thereupon to the Board of Directors. (v) To keep minutes of its proceedings . 2.4 OFFICERS The officers of the Authority shall be a Chairman, Vice Chairman, Secretary, Treasurer, General Manager and such other officers and assistant officers as may be authorized by the Board of Directors to perform such duties as may be assigned by the Board of Directors . The Chairman and Vice Chairman shall be members of the Board of Directors, but other officers of the Authority need not be members of the Board of Directors . 2.4 . 1 ELECTION OF OFFICERS AND TERMS OF OFFICE At each annual meeting of the Board of Directors, the members of the Board of Directors shall elect officers who shall serve as such officers of the Authority until the next annual meeting of the Board of Directors and until their successors are elected and Organic Contract Amended and Restated 03/ 03/ 2009 Page 12 of 23 I 1 1 qualified . If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as may be convenient. Vacancies or new offices may be filled at any meeting of the Board of Directors. 2.4 .2 REMOVAL Any officer or agent elected or appointed by the Board of Directors may be removed by the Board of Directors, with or without cause, whenever in its judgment the best interests of the Authority will be served thereby . 2.4 .3 DUTIES OF OFFICERS In addition to duties assigned by the Board of Directors, the duties of the officers shall include the following: (i) CHAIRMAN The Chairman shall preside at all meetings of the Board of Directors and, except as otherwise delegated by the Board of Directors, shall execute all legal instruments of the Authority, and shall perform such other duties as the Board of Directors may prescribe . (ii) VICE CHAIRMAN The Vice Chairman shall, in the absence of the Chairman, or in the event of the Chairman' s inability or refusal to act, perform the duties of the Chairman and when so acting shall have all the powers of and be subject to all the restrictions upon the Chairman. The Vice Chairman shall also perform such other duties as may be prescribed by the Board of Directors. Organic Contract Amended and Restated 03/ 03/ 2009 Page 13 of 23 (iii) SECRETARY The Secretary shall maintain the official records of the Authority, including all resolutions and regulations approved by the Board of Directors, the minutes of meetings of the Board of Directors, and a register of the names and addresses of Directors and officers, and shall issue notice of meetings, attest and affix the corporate seal to all documents of the Authority, and shall perform such other duties as the Board of Directors may prescribe. (iv) TREASURER The Treasurer shall serve as financial officer of the Authority and shall, pursuant to the fiscal resolution adopted by the Board of Directors governing the financial transactions of the Authority and the restrictions imposed by law, be responsible for the receipt, custody, investment, and disbursement of the Authority' s funds and securities and for duties incident to the office of Treasurer, and shall perform other duties as the Board of Directors may prescribe. (v) GENERAL MANAGER The General Manager shall be the principal executive officer of the Authority with full responsibility for the planning, operations, and administrative affairs of the Authority, and the coordination thereof, pursuant to policies and programs approved by the Board of Directors, and shall be the agent for service of process on the Authority. When and while a vacancy exists in the office of General Manager, the Board of Directors shall appoint a Organic Contract Amended and Restated 03/ 03/ 2009 Page 14 of 23 I qualified interim General Manager to act as the principal i executive officer of the Authority . 2 .4 .4 BONDS OF OFFICERS The Treasurer and any other officer or agent of the Authority charged with responsibility for the custody of any of its funds or property shall give bond in such sum and with such surety as the Board of Directors shall determine. The Board of Directors in its discretion may also require any other officer, agent, or employee of the Authority to give bond in such amount and with such surety as it shall determine . The cost of such bond shall be an expense payable by the Authority . 2.5 INDEMNIFICATION OF OFFICERS AND DIRECTORS Each Director and officer of the Authority, whether or not then in office, and his/ her personal representatives, shall be indemnified by the Authority against all costs and expenses actually and necessarily incurred by him/ her in connection with the defense of any action, suit, or proceeding in which he/ she may be involved or to which he/ she may be made a party by reason of his/ her being or having been such Director or officer, except in relation to matters as to which he/ she shall be finally adjudged in such action, suit, or proceeding to be liable for gross negligence or willful and wanton misconduct in the performance of duty. Such costs and expenses shall include amounts reasonably paid in settlement for the purpose of curtailing the costs of litigation, but only if the Authority is advised in writing by its counsel that in his/ her opinion the person indemnified did not commit gross negligence or willful and wanton misconduct. The foregoing right of indemnification shall not be I i Organic Contract Amended and Restated 03/ 03/ 2009 Page 15 of 23 j 1 exclusive of other rights to which he/ she may be entitled as a matter of law or by agreement. 2. 6 TERM OF CONTRACT This Contract shall continue in force and effect until December 31, 2050, and until thereafter terminated by any Municipality following not less than twelve (12) months written notice to the other Municipalities of its intention to terminate; provided, however, that this Contract may be amended, modified, or terminated at any time by a written document approved and executed by each and every Municipality which is a party to this Contract; and, provided further, however, that this Contract may not in any event be terminated so long as the Authority has bonds, notes, or other obligations outstanding, unless provision for full payment of such obligations, by escrow or otherwise, has been made pursuant to the terms of such obligations. 2.7 ASSETS AND PROPERTIES All assets and properties of the Authority shall be held in trust for the purposes herein mentioned, including the payment of the liabilities of the Authority . 2.8 DISTRIBUTION OF ASSETS UPON TERMINATION In the event of the termination of this Contract and the dissolution of the Authority, all of its assets shall immediately vest in the Municipalities . The assets of the Authority conveyed to each Municipality shall be that proportion which (i) the total dollar amount of electric power and energy purchased and paid for by such Municipality, from the Authority and its predecessor during their corporate existence, bears to (ii) the total dollar amount of all electric power and energy purchased and paid for by all of the Municipalities, from the Authority and its predecessor during their corporate existence . Organic Contract Amended and Restated 03/ 03/ 2009 Page 16 of 23 2. 9 SEAL The corporate seal of the Authority shall be in the form of a circle and have inscribed thereon the name of the Authority and the words "Corporate Seal," together with such insignia, if any, as the Board of Directors may authorize. 2. 10 CONTRACTS Except as otherwise provided by law, the Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract, or execute and deliver any instrument in the name and on behalf of the Authority . 2.11 CHECKS, DRAFTS, AND OTHER FINANCIAL DOCUMENTS All checks, drafts, or other orders for payment of money and all notes, bonds, or other evidences of indebtedness issued in the name of the Authority shall be signed by such officer or officers, agent or agents, employee or employees of the Authority and in such manner as shall be determined by the fiscal resolution. 2. 12 DEPOSITS All funds of the Authority shall be deposited in a manner set forth by the fiscal resolution . 2.13 FISCAL YEAR The fiscal year of the Authority shall be the calendar year. 2. 14 PRINCIPAL PLACE OF BUSINESS The principal place of business of the Authority shall be in Fort Collins, Colorado . Organic Contract Amended and Restated 03/ 03/ 2009 Page 17 of 23 3 .0 GENERAL POWERS The general powers of the Authority shall include the following powers : (i) ELECTRIC ENERGY To develop electric energy resources and related services, and produce, purchase, and transmit electric energy, in whole or in part, for the benefit of the inhabitants of the Municipalities. (ii) CONTRACTS To make and enter contracts of every kind with the Municipalities, the United States, any state or political subdivision thereof, and any individual, firm, association, partnership, corporation or any other organization of any kind. (iii) AGENTS AND EMPLOYEES To employ agents and employees. (iv) FACILITIES To acquire, construct, manage, maintain, and operate electric energy facilities, works, and improvements and any interests therein, including, without limitation, to acquire, construct, reconstruct, improve, and rehabilitate, repair, operate, and maintain (separately or jointly) generating plants, transmission systems and related facilities for the purpose of delivering electrical power and energy generated thereby to the Municipalities, and any mine, well, pipeline, plant, structure, or other facility for the development, production, manufacture, storage, fabrication, or processing of fossil or nuclear fuel of any kind for use, in whole or in major part, in any of such generating plants, and any railroad cars, trackage, pipes, equipment, and any structures or facilities of any kind used or useful in the transporting of fuel to any of such generating plants, and to sell, deliver, exchange, or otherwise dispose of the power Organic Contract Amended and Restated 03/ 03/ 2009 Page 18 of 23 ,I f and energy generated by said plants, and any of the waste or by-products therefrom, and to purchase, lease, or otherwise acquire and equip, maintain, operate, sell, assign, convey, lease, mortgage, pledge, and otherwise dispose of electrical generating plants, transmission systems and related facilities, together with all lands, buildings, equipment, and all other real or personal property, tangible or intangible, necessary or incidental thereto. (v) PROPERTY To acquire, hold, lease (as lessor or lessee), sell, or otherwise dispose of any real or personal property, commodity, and service including, without limitation, to buy, lease, construct, appropriate, contract for, invest in, and otherwise acquire, and to own, hold, maintain, equip, operate, manage, improve, develop, mortgage, and deal in and with, and to sell, lease, exchange, transfer, convey and otherwise dispose of and to mortgage, pledge, hypothecate and otherwise encumber real and personal property of every kind, tangible and intangible. (vi) CONDEMNATION To condemn property for public use, if such property is not owned by any public utility and devoted to such public use pursuant to state authority. (vii) DEBT To incur debts, liabilities, or obligations and to borrow money and, from time to time, to snake, accept, endorse, execute, issue, and deliver bonds, debentures, promissory notes, bills of exchange, and other obligations of the Authority for monies borrowed or in payment for property acquired or for any of the other purposes of the Authority, and to secure the payment of any such obligations by mortgage, pledge, deed, indenture, agreement, or other collateral instrument, or by other lien upon, Organic Contract Amended and Restated 03/ 03/ 2009 Page 19 of 23 assignment of, or agreement in regard to, all or any part of the properties, rights, assets, contracts, easements, revenues, and privileges of the Authority wherever situated . (viii) LITIGATION To sue and be sued in its own name. (ix) SEAL To have and to use a corporate seal . (x) RATES To fix, maintain, and revise fees, rates, and charges for functions, services, or facilities provided by the Authority. (xi) REGULATIONS To adopt, by resolution, regulations respecting the exercise of its power and the carrying out of its purposes . (xii) AGENTS To do and perform any acts and things authorized by this section under, through, or by means of an agent or by contracts with any person, firm, corporation or governmental entity . (xiii) JOINT OWNERSHIP To own, operate, and maintain real and personal property, and facilities in common with others, as permitted by law, and to conduct joint, partnership, cooperative, or other operations with others and to exercise all of the powers granted in this Contract in joint partnership or cooperative efforts and operations with others . (xiv) OTHER POWERS Organic Contract Amended and Restated 03/ 03/ 2009 Page 20 of 23 To exercise any other powers which are essential, necessary, incidental, convenient, or conducive to providing the wholesale electric power and energy requirements of the Municipalities, as well as to accomplishing the purposes, functions, services, and facilities set forth in Sections 2 .0, 2. 1 , and 2.2 of this Organic Contract. 4.0 POLITICAL SUBDIVISION The Authority shall be a political subdivision and a public corporation of the State of Colorado separate from the Municipalities. It shall have the duties, privileges, immunities, rights, liabilities, and disabilities of a public body politic and corporate. 5 . 0 REVENUE BONDS The Authority is authorized to issue bonds, notes, or other obligations secured by its electric revenues pursuant to the terms, conditions, and authorization contained in C. R.S. § 29-1-204(7) . 6 . 0 DEBT NOT THAT OF MUNICIPALITIES The bonds, notes, and other obligations of the Authority shall not be the debts, liabilities, or obligations of the Municipalities. 7.0 FILING OF CONTRACT A copy of this Contract shall be filed with the Division of Local Government of the State of Colorado within ten (10) days after its execution by the Municipalities . 8.0 NOTICES Any formal notice, demand, or request provided for in this Contract shall be in writing and shall be deemed properly served, given, or made if delivered in person or sent by registered or certified mail, postage prepaid, to the persons specified below: Organic Contract Amended and Restated 03/ 03/ 2009 Page 21 of 23 I Town of Estes Park, Colorado c/ o Town Administrator P.O. Box 1200 Estes Park, Colorado 80517 City of Fort Collins, Colorado c/ o Utilities Executive Director P.O. Box 580 Fort Collins, Colorado 80522 City of Longmont, Colorado c/ o Director of Longmont Power & Communications 1100 South Sherman Longmont, Colorado 80501 City of Loveland, Colorado c/ o Water and Power Director 200 North Wilson Loveland, Colorado 80537 9.0 SEVERABILITY In the event that any of the terms, covenants, or conditions of this Contract or their application shall be held invalid as to any person, corporation, or circumstance by any court having jurisdiction, the remainder of this Contract and the application and effect of its terms, covenants, or conditions to such persons, corporation, or circumstances shall not be affected thereby. 10. 0 DUPLICATE ORIGINALS Organic Contract Amended and Restated 03/ 03/ 2009 Page 22 of 23 I This Contract may be executed in several counterparts, each of which will be an original but all of which together shall constitute one and the same instrument. Organic Contract Amended and Restated 03/ 03/ 2009 Page 23 of 23 f IN WITNESS WHEREOF, the Municipalities have caused this Contract, as amended, to be executed as of the day of 12009, I TOWN OF ESTES PARK, COLORADO ATTEST : By: Mayor Town Clerk CITY OF FORT COLLINS, COLORADO ATTEST: By: Mayor City Clerk CITY OF LONGMONT, COLORADO ATTEST: By : Mayor City Clerk CITY OF LOVELAND, COLORADO ATTEST: By : Mayor City Clerk Organic Contract Amended and Restated 03/ 03/ 2009 Page 24 of 23 i i 1]1 I ATTACHMENT 12 AMENDED CONTRACT FOR THE SUPPLY OF ELECTRIC POWER AND ENERGY This contract, made this day of , 2009, between PLATTE RIVER POWER AUTHORITY, a political subdivision organized and existing under and by virtue of the laws of the State of Colorado (hereinafter called "Platte River") and the CITY OF FORT COLLINS, COLORADO, a municipal corporation of the State of Colorado (hereinafter called "Fort Collins." ) WITNESSETH: WHEREAS, Platte River was formed by Estes Park, Fort Collins, I ongmont and Loveland (hereinafter collectively called " Municipalities" ) in order to provide the wholesale power and energy requirements of the Municipalities in a reliable, cost-effective_ manner that reflects good stewardship of the environment, sustainable, manne ; and WHEREAS, Platte River, owns, operates, and maintains electric generating facilities, transmission lines, substations, and related facilities for the purpose of supplying electric power and energy to the electric systems owned and operated by the Municipalities for resale; andWHEREAS, Platte 16ver has heretofore entered into or will enter into agreements for the sale of electric power and energy similar in form to this Agreement with the cities of Estes Park, Longmont, and Loveland; ; and WHEREAS, this Agreement replaces the Transmission Facilities Agreement between Platte River and Fort Collins, dated February 22, 1980; and WHEREAS, Fort Collins desires to purchase electric power and energy from Platte River on the terms and conditions herein set forth; NOW, THEREFORE, in consideration of the mutual undertakings herein contained, the Parties hereto agree as follows: Article 1 : Sale and Purchase of Electric Power and Energy (a) Platte River shall sell and deliver to Fort Collins and Fort Collins shall purchase and receive from Platte River all electric power and energy which Fort Collins shall require for the operation of its municipal electric system to the extent that Platte River shall have such Fort Collins Power Supply Agreement Amended and Restated 1/28/2009 Page 1 of 10 ATTACHMENT 12 power and energy available; provided, however, that (1) Fort Collins shall have the right to continue to generate its own power and energy to the extent of the capacity of its generating facilities in service on September 5, 1974 and may also generate power and energy for its own use from any new generation resource(s) owned and operated by Fort Collins provided that the total rated capacity of all such new generation is no greater than 1,000 kW or one percent of the peak load of Fort Collins, whichever is greater, provided further that if Fort Collins develops new generation resources of a total rated capacity as set forth above Platte River commits that it will meet with Fort Collins to discuss in good faith an increase in the total rated capacity limit, and (2) Fort Collins shall not be in violation of the all requirements purchase obligation herein when it purchases power from net metered customers. (b) Subject to the provisions of Article 2(a ), Fort Collins hereby binds itself to take and pay for all power and energy that is generated, purchased, or otherwise obtained by Platte River, and is furnished to Fort Collins for resale pursuant to Article 1 (a) hereof, said payment to be made at the rates set forth in the Tariff Schedules of Platte River in effect at the time the power and energy is furnished to Fort Collins. Article 2: Rate for Power and Energy (a) Fort Collins shall pay Platte River for all electric power and energy furnished hereunder at the rates and on the terms and conditions as provided in the Platte River Tariff Schedules; provided, however, that notwithstanding any other provision of this Agreement, the obligation of Fort Collins to pay Platte River for all electric power and energy furnished hereunder shall be, and is, a special obligation of Fort Collins payable solely from revenues to be received bar Fort Collins from the sale of electric power and energy to its electric utility customers during the term hereof and is not a lien, charge, or liability against Fort Collins or against any property or funds of Fort Collins other than revenues to be received by Fort Collins from the sale of electric power and energy to its electric utility customers during the term hereof, and the obligation to pay Platte River for all electric power and energy furnished hereunder does not constitute a debt, liability, or obligation of Fort Collins other than from its revenues to be received from the sale of electric power and energy to its electric utility customers during the term hereof, and Fort Collins is not otherwise obligated to pay such obligation. Fort Collins Power Supply Agreement Amended and Restated 1/28/2M Page 2 of 10 ATTACHMENT 12 (b) The Board of Directors of Platte River at such intervals as it shall deem appropriate, but in any event not less frequently than once in each calendar year, shall review the rates for electric power and energy furnished hereunder and under similar agreements with I the other Municipalities and, if necessary, shall revise such rates to produce revenues which shall be sufficient, but only sufficient, with the revenues of Platte River from all other sources, (i) to meet the cost of operation and maintenance (including, without limitation, fuel, replacements, insurance, taxes, fee, and administrative and general overhead expense) of the electric generating plants, transmission system, and related facilities of Platte River; (ii) to meet the cost of any power and energy purchased for resale hereunder by Platte River and the cost of transmission service; (iii) to make payments of principal and interest on all indebtedness and revenue bonds of Platte River and provide an earnings margin adequate to enable Platte River to obtain revenue bond financing on favorable terms; and ( iv) to provide for the establishment and maintenance of reasonable reserves. (c) Platte River shall cause a notice in writing to be given to each Municipality to which it furnishes electric power and energy, which notice shall set out each revision of the rates with the effective date thereof, which shall be ,iot less than thirty (30) days after the date of the notice. All rate adjustments shall apply equally to all Municipalities to which Platte River furnishes electric power and energy, unless otherwise agreed upon, and shall not be discriminatory. Fort Collins agrees that the rates from time to time established by the Board of Directors of I'latte River shall be deemed to be substituted for the rates presently contained in the Tariff Schedules and agrees to pay for electric power and energy furnished to it hereunder after the effective date of any revisions to the Tariff Schedules at such revised rates. Article 3: Covenants of Platte River (a) Platte River shall use reasonable diligence to furnish a constant and uninterrupted supply of electric power and energy hereunder. If the supply of electric power and energy shall fail, or be interrupted, or become defective through uncontrollable forces, as defined herein, Platte River shall not be liable for any claim or damages caused thereby. I Fort Collins Power Supply Agreement Amended and Restated 1 / 28/ 2009 Page 3 of 10 I 1 i ATTACHMENT 12 (b) After first satisfying the electric power and energy requirements of all Municipalities to which it furnishes electric power and energy, Platte River may, in its sole discretion, market and dispose of any surplus electric power and energy which it owns or produces or which Platte River is obligated by contract to purchase, under the most advantageous terms and conditions obtainable. (c) Platte River shall consider the environmental impacts of the planning, design, construction, and operating decisions associated with the performance of its obligation~ under this Agreement. Article 4: Covenants of Fort Collins (a) Fort Collins agrees to maintain rates for electric power and energy furnished to its electric utility customers which will, after payment of all of Fort Collins' costs of operation and maintenance (including, without limitation, replacements, insurance, administrative and general overhead expense), return to Fort Collins sufficient revenue to meet its obligations to Platte River hereunder. (b) Fort Collins shall not sell at wholesako any of the electric energy delivered to it hereunder to any of its customers for resale by that customer, unless such resale is specifically approved in writing by Platte River. (c) Fort Collins acknowledges that it is familiar with the provision of Platte River's contract with the Western Area Power Administration , which requires, as a condition of the purchase of federally generated power, that the Municipalities comply with certain provisions of the "General Power Contract Provisions," which is attached hereto as Attachment A . Fort Collins acknowledges its compliance obligations under the General Power Contract Provisions, as that document presently exists and as it may be modified in the future. Article 5: Conditions of Delivery of Power and Energy (a) The electric power and energy to be furnished by Platte River shall be alternating current, sixty (60) hertz, three-phase, subject to conditions of delivery and measurement as hereinafter provided and in the Tariff Schedules. i Fort Collins Power Supply Agreement _ Amended and Restated 1 /28/2009 Page 4 of 10 1 ATTACHMENT 12 (b) Responsibilities for the facilities through which electric power and energy is delivered are set forth in Attachment B of this Agreement, attached hereto and made a part hereof. (c) Fort Collins shall make and pay for all final connections between its system and the system owned by, or available to, Platte River at the points of delivery agreed upon. (d) Unless otherwise agreed, Fort Collins shall install, own, and maintain the necessary substation equipment at the points of delivery from the system of, or available to, Platte River and shall install, own, and maintain switching and protective equipment of adequate design and sufficient capacity beyond such points of delivery to enable Fort Collins to take and use the electric power and energy supplied hereundgr without hazard to such system. (e) To provide adequate service to Fort Collins, Platte River agrees to increase the capacity of an existing transmission point of delivery, or to establish a new transmission point of delivery at a mutually agreeable location, of a design capacity of not less than 10,000 kVa maximum nameplate rating at 55' C. rise, and in accordance with this Agreement. (f) Fort Collins shall give Platte River at least two years written notice of the need to increase the capacity of an existing transmission point of delivery or the need for a new transmission point of delivery . If new transmission is required, Fort Collins shall give Platte River at least four years written notice. The notice shall specify the amount of additional or new capacity, the new transmission required, and the desired initial date of its operation. Platte River shall, within sixty (60) days after receipt of such notice, and on the basis of the best information available to Platte River from system plans and load projections for Fort Collins, inform Fort Collins in writing of Platte River's plans and schedules with respect to the supply of the additional capacity requested by Fort Collins, and shall thereafter keep Fort Collins informed of Platte River's progress in supplying such additional capacity. Any written notice requesting additional capaeity at an existing point of delivery or the establishment of a new point of delivery shall provide to Platte River any and all authority necessary for its facilities to occupy the property of Fort Collins during the period in which that point of delivery is used by Platte River for the delivery of power and energy. (g) if Fort Collins requires the construction of a 115 kV or 230 kV transmission line for additional service where such line is a tap or radial line over which energy can flow in only one direction, as distinguished from a system line over which energy can flow in either direction, Fort Collins Power Supply Agreement Amended and Restated 1/ 28/ 2009 Page 5 of 10 ATTACHMENT 12 then ownership, operation, and maintenance of such 115 kV or 230 kV transmission line will be undertaken by Platte River pursuant to a separate agreement with Fort Collins which provides for an appropriate sharing of the annual costs of ownership and operations of such line for as long as such energy flow and delivery conditions prevail . Article 6 : Consultation on System Planning (a) At least once each year, on or before July 1, Platte River shall, consult Fort Collins concerning its requirements for transmission facilities to effect delivery of power and energy by Platte River. The date for such annual consultation shall be set by agreement of the Parties. (b) At least thirty (30) days prior to the date of such annual consultation, Fort Collins shall provide Platte River with two (2) copies of its latest estimate of requirements for delivery of power and energy covering a future period of ten ( 10) years. Platte River shall review Fort Collins's annual estimates and shall consider them in preparing Platte River's annual system plan . Following Platte River's annual consultations on delivery requirements with all Municipalities, Platte River shall prepare an annual system plan for the delivery of power and energy to all Municipalities covering a future period of ten (10) years. Decisions regarding the construction of any transmission and delivery facilities by Platte River primarily to supply Fort Collins, will take into account Fort Collins' long-range distribution requirements and costs and the long-range costs and benefits of alternative sen ice plans. Platte River's annual system plan shall include appropriate load flow and stability studies and a copy thereof shall be furnished to Fort Collins if requested . Article 7: Measurement of Power and Energy (a) Metering equipment shall be furnished, installed, and maintained by Platte River at each point of delivery to Fort Collins at the low voltage side of the transforming equipment or at such other points as agreed upon by the Parties. (b) Loss adjustments for low voltage side or remote metering shall be as specified in the Tariff Schedule or as otherwise agreed by the Parties. Fort Collins Power Supply Agreement Amended and Restated 1 /28/2009 Page 6 of 10 { ATTACHMENT 12 Article 8 : Meter Readings and Payment of Bills (a) Platte River shall read meters and invoice Fort Collins for power and energy furnished hereunder at approximately monthly intervals . Such invoices shall be due and payable to Platte River within fifteen (15) days from date of issuance and shall become delinquent thereafter. (b) If Fort Collins' monthly bill becomes delinquent, late charges at the rate of a one and one-half percent (11/2 % ) per month of the unpaid balance shall be added, and if such bill is delinquent for a period of fifteen (15) days or longer, Platte River may discontinue delivery of electric power and energy not less than fifteen (15) days following written notice to Fort Collins. Article 9 : Meter Testing and Billing Adjustment (a) Platte River shall test and calibrate meters by comparison with accurate standards at intervals of twelve (12) months, and shall also make special meter tests at any time at Fort Collins' request. The cost of all tests shall be borne by Platte River; provided, however, that if any special meter test made at Fort Collins' request shall disclose that the meters are recording accurately, Fort Collins shall reimburse Platte River for the cost of such test. Meters registering within two percent (2 % ) above or below normal shall be deemed to be accurate. (b) The readings of any meter which are disclosed by test to be inaccurate shall be corrected from the beginning of the monthly billing period immediately preceding the billing period during which the test was made; provided, that no correction shall be made for a longer period than such inaccuracy is determined by Platte River to have existed . If a meter fails to regi3ter, the electric power and energy delivered during such period of failure shall, for billing purposes, be estimated by Platte River from the best information available. (c) Platte River shall notify Fort Collins in advance of any meter reading or test so that Fort Collins' representative may be present at such meter reading or test. Article 10: Right of Occupancy and Access Both Parties shall have a revocable license to occupy the property of the other Party necessary to deliver and receive power and energy under this Agreement as described in Attachment B . Duly authorized representatives of either Party shall be permitted to enter the I Fort Collins Power Supply Agreement Amended and Restated 1 / 28/ 2009 Page 7 of 10 i i ATTACHMENT 12 premises of the other Party at all reasonable times in order to carry out the provisions of this Agreement and those described in Attachment B. Article 11 : Uncontrollable Forces Neither Party to this Agreement shall be considered to be in default in performance of any of its obligations, except the agreement to make payment, when a failure of performance shall be due to an uncontrollable force. The term " uncontrollable force" means any cause beyond the control of the Party affected, including but not restricted to, failure of or threat of failure of facilities, flood, earthquake, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience, labor dispute, labor or niaterigl shortage, sabotage, restraint by court order or public authority and action or inaction by, or failure to obtain the necessary authorization or approvals from, any governmental agency or authority, which by the exercise of due diligence such Party could not reasonably have been expected to avoid and which by exercise of due diligence it shall be unable to overcome. Nothing contained herein shall require a Party to settle any strike or labor dispute in which it may be involved. Either Party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give prompt written notice of such fact, if reasonable to do so, to the other Party and shall exercise due diligence to remove such inability with all reasonable dispatch. Article 12: Enforceability The Parties hereto recogni/ e that there are legal constraints imposed upon them by the constitution, statutes, and rules and regulations of the State of Colorado and of the United States, and imposed upon them by their respective governing statutes, charters, ordinances, j rules and regulations, and that, subject to such constraints, the Parties intend to carry out the terms and conditions of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, in no event shall either of the Parties exercise any power or take any action which shall be prohibited by applicable law. Whenever possible, each provision of this Agreement shall be interpreted in such a manner so as to be effective and valid under applicable law. Fort Collins Power Supply Agreement Amended and Restated 1 / 28/ 2009 Page 8 of 10 ATTACHMENT 12 Article 13: Term of Agreement (a) This Agreement shall become effective when executed by both Parties, and shall amend and supersede the existing Contract for the Supply of Electric Power and Energy between Platte River and Fort Collins, dated July 1, 1998. This Agreement shall remain in effect until December 31, 2050, and thereafter until terminated by either Party following not less than twelve (12) months written notice to the other Party of its intention to terminate. (b) The Transmission Facilities Agreement between Platte River and Fort Collins dated February 22, 1980, shall be deemed terminated as of the date of this Agreement. Article 14: Notices Any formal notice provided for in this Agreement, and the payment of ironies due, shall be deemed properly served, given or made, if delivered in person or sent by regular mail to the persons specified below : For PIatte River: For Fort Collins: General Manager Utilities General Manager Platte River Power Authority City of Fort Collins 2000 East Horsetooth Road P. O. Box 580 Fort Collins, Colorado 80525 Fort Collins, Colorado 80522 Article 15: Severability In the event that any of the terms, covenants, or conditions of this Agreement or their application shall be held invalid as to any person or circumstance by any Court having jurisdiction, tiie remainder of this Agreement and the application of its terms, covenants, or conditions to such persons or circumstances shall not be affected thereby . Fort Collins Power Supply Agreement Amended and Restated 1 / 28/ 2009 Page 9 of 10 ATTACHMENT 12 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed the day and year first above written. PLATTE RIVER POWER AUTHORITY: ATTEST: �. . By: By, General Manager SecreOry CITY OF FORT COLLINS: ATTEST: By: By: Mayor City Clerk i Fort Collins Power Supply Agreement Amended and Restated 1 / 28/ 2009 Page 10 of 10 ATTACHMENT 13 COUNCIL DIRECTION SOUGHT • What questions or concerns does Council have concerning Platte River Power Authority governance ? • Are there questions or concerns about the way that the Fort Collins ' City Council provides input to its Platte River board representatives regarding policy matters ? F�t` Collins COUNCIL DIRECTION SOUGHT • Is the City Council ready to move forward with consideration of either one of the following versions of the Organic Contract and Power Supply Contract : -� Fort Collins 1 COUNCIL DIRECTION SOUGHT 1 ) the contracts as originally proposed and approved by the other PRPA municipal members , or 2 ) the versions that were approved by Fort Collins City Council on March 24 , 2009 as modified at PRPA' s suggestion ? F�t` 2 ATTACHMENT �J POWER AUTHORITY Platte River Power Authority : Formation and Governance Regional Need for Power Resource Fort Collins , along with Estes Park , Longmont , and Loveland , relied upon Bureau of Reclamation wholesale power Federal power provided by hydropower projects on western rivers Municipal utilities were informed of limits on future hydropower development Municipal members , along with Fort Morgan , began coordinated efforts to meet future power needs in mid - 1960s Formation - Corporate Roots Platte River Municipal Power Association was formed in 1965 Incorporated in 1971 Name changed to Platte River Power Authority and re - incorporated Began revenue producing operations in 1973 . � 3 Formation - Capitalization Small amount of operational funds provided by Member Municipalities Initial revenues derived from re - sale of federal hydropower to the Member Municipalities Significant capital funds necessary to participate in jointly owned resource (Yampa Project) or for construction of new generation Looked to bond market �, ,\ Formation - Capitalization ► Planned to issue tax - exempt debt ► Discovered that non - profit corporations could not issue tax - exempt debt Explored re - formation as a political subdivision Jw -� s Re - formation as Political Subdivision No ready vehicle for formation as a political subdivision Drafted necessary legislation Legislation adopted in 1975 Legislation allows municipalities to form power authority Power authority is separate from the contracting municipalities Organic Contract ► Organic Contract was executed June 1975 Establishes Platte River as a political subdivision and public corporation Authorizes issuance of tax - exempt debt , which is the debt of Platte River and not that of Member Municipalities Much of Organic Contract is modeled after the prior corporate bylaws Governance - Independent judgment of Board Members Issue arose when Platte River was non - profit corporation Prior authorization for voting sought by Longmont Platte River Board sought direction ► Fort Collins favored status quo ► Eventual unanimous agreement that prior authorization unnecessary 8 Governance - Inclusion of Mayors on Board of Directors Original version of Organic Contract specified four member Board Organic Contract modified in 1976 to include mayors Motivation for including mayors was a desire to include local policy viewpoints in Board decision making Governance - Weighted Vote Weighted vote also dates to corporate entity Concerns about varying size of constituent municipalities led to " senatorial " system Possibility of tie led to weighted voting to break tie Power authority statute was drafted to accommodate No record of weighted votes Governance - Legislative Activity During mid - 1 970s Platte River was proactive in matters concerning creation Since 1970s generally reactive Level of legislative activity varies with nature of pending issues Monitor legislative activity involving issues such as environmental regulation , health and safety regulation , public finance , economic regulation Governance - Legislative Activity Staff produces annual policy document of legislative issues Standing agenda item at Board meetings Board provides direction as appropriate +\ 12 Contract Renewal Process Began process to revise and extend Organic Contract and PSAs in late 2007 Extend term through 2050 Other changes to the Organic Contract largely editorial or procedural Last " governance " change to the Organic Contract was inclusion of mayors on Board in 1976 Organic Contract is between Member Municipalities and significant modification beyond the role of staff 13 Contract Renewal Process Substantive changes to the PSAs Termination and integration of the transmission facilities agreement Limited exception to all - requirements provision to allow some municipal generation �1\ `' 14 Contract Renewal Process Revised agreements approved with different language Fort Collins approval in March included language not in the versions approved by Longmont and Estes Park New Fort Collins language taken from Platte River environmental policy and related resolutions Compromise language developed but not yet acted upon is