HomeMy WebLinkAboutResolution - 6013 - Agreement - Texas Wind Power Company - Lubbock Wind Program - 09_24_1998Resolution No. 6013
Item No. 32
September 24, 1998
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock a Lubbock Wind Program
Agreement by and between the City of Lubbock and Texas Wind Power Company and all
related documents. Said Agreement is attached hereto and incorporated in this
Resolution as if fully set forth herein and shall be included in the minutes of the Council.
Passed by the City Council this 24th day of September , 1998.
A ST:
Kaytho Parnell, City Secretary
APPROVED AS TO CONTENT:
Paul Thomps n, Managing Director
of Lubbock Power & Light
APPROVED AS TO FORM:
ccdocs/September 15, 1998
Resolution No. 6013
Item No. 32
September 24, 1998
Lubbock Wind Program Agreement
September 22, 1998
Lubbock Wind Program Agreement
by and between
City of Lubbock, Texas
and
Texas Wind Power Company
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Lubbock Wind Program Agreement
September 22, 1998
Table of Contents
1. Definitions
2. Wind Power Facilities
2.1 Operations and Maintenance
2.2 Operating Committee
2.3 Safety Requirements
2.4 Quality of Product
2.5 Design and Specifications
2.6 Metering and Interconnection
2.7 Right of Installation and Removal
2.8 Use of Facilities
2.9 Delivery
2.10 Service Conditions
2.11 Local Wind Power Facility Installed Capacity
2.12 Low Load Conditions
2.13 Summer Emergency Conditions
2.14 Notice of Low Load Conditions or Summer Emergency Conditions
2.15 Wholesale Exchanges of Wind Energy
2.16 West Texas Municipal Power Agency (WTMPA) Agreement
3. Wind Energy Program Administration and Marketing
3.1 Administering Wind Customers
3.1.1 Adding, Changing or Deleting Wind Customers in Coordination with Utility
rr 3.1.2 Changing Wind Subscription of Wind Customers
3.1.3 Changing Wind Term of Wind Customers
3.1.4 Changing Wind Rates
7 7 3.1.5 Customer Information from Utility
LL 3.1.6 Wind Company Resolution of Customer Complaints
3.1.7 Utility Billing System Coordination
3.1.8 Utility Invoicing of Wind Customers
` 3.1.9 Wind Customer Administration Audit
3.2 Wind Account
3.2.1 Wind Account Management and Administration
3.2.2 Wind Account Reporting by Wind Company by 5th of each Month
3.2.3 Wind Account Reporting by Utility by 5th of each Month
3.2.4 Wind Account Billing Payment Information by Wind Company by loth of each
Month
3.2.5 Wind Account Funding by Utility by 15th of each Month
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Lubbock Wind Program Agreement
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3.2.6 Wind Account Funding by Wind Company by 15th of each Month
3.2.7 Wind Account Payments to Utility by 20th of each Month
3.2.8 Wind Account Payments to Wind Company by 20th of each Month
3.2.9 Wind Account Annual Reconciliation and Wind Customer Rebates (if applicable)
3.2.10 Wind Account Audit
3.3 Wind Program Marketing
3.3.1 Wind Company a contractor to Utility
3.3.2 Independent Marketing to Utility Customers
3.3.3 Billing Insert
3.3.4 Incorporation of Utility Marketing Objectives
3.3.5 Restrictions on Marketing
3.3.6 Marketing Exclusivity
3.3.7 Utility Coordination
3.4 Calculation of Charges
3.4.1 Utility Fee
3.4.2 Utility Make -Up
3.4.3 Utility Summer Capacity
3.4.4 Wind Energy
3.4.5 Surplus Wind Energy
3.4.6 Wind Summer Capacity
3.4.7 Wind Energy Reserve Adjustment for Initial Three WTGs
4. Payment of Invoices
5. Assignment
5.1 Partial Assignment by Agreement with Project Affiliate of Wind Company, Brownfield
PIN Wind, LLC, in association with Electric Power Research Institute (EPRI), United State
Department of Energy (DOE) National Renewable Energy Laboratory (NREL) Turbine
Verification Program Phase III (TVP III)
5.2 Partial Assignment to Marketing Affiliate of Wind Company
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6. Term of Agreement
7. Compliance with Applicable Laws and Ordinances
8. Partial Invalidity and Repeal Provisions
9. Dispute Resolution
10. Intentionally Blank
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11. Termination on Default
12. Force Majeure
13. Confidentiality
14. Insurance
15. Notices
16. Successors and Assigns
17. Governing Law
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Lubbock Wind Program Agreement
September 22, 1998
Lubbock Wind Program Agreement
The Lubbock Power and Light ("Utility") contracts with Texas Wind Power Company
("Wind Company") to market and administer a Wind Program whereby Utility customers may
elect to purchase energy produced from Wind Power Facilities through new or existing Utility
service.
1. Definitions
Charge Definitions. Payments to Wind Company and Utility for retail energy deliveries by
Utility to Wind Customers (SR„) and payments to Wind Company and/ or Utility for wholesale
energy and capacity deliveries (Sw,.) are as follows:
SR Wind Program Wind Energy Charges (dollars) are all Wind Energy Charges to Wind
Customers billed by Utility to Wind Customers in accordance with paragraph 3.4.4
during a period.
SR Utility see Utility Fee (dollars) are payments deducted from Wind Energy Charges ("SR
wind P,og,.") calculated in accordance with paragraph "3.18 Utility Fee" of this
Agreement.
SR Make-up Utility Make-up Charges (dollars) are payments deducted from Wind Energy
Charges(" SR Wind ft g tn") in accordance with paragraph 3.4.2 of this Agreement. Note
that the Utility collects franchise fees and sales taxes separate from the accounting of
the Wind Program and the Wind Account.
SW surplus Surplus Wind Energy Charges (dollars) are Avoided Costs calculated in
accordance with paragraph 3.4.5 of this agreement and paid by Utility to Wind
Company for energy delivered to Utility, but not delivered to Wind Customers.
SS,mer Capacity Summer Capacity Charges (dollars) are amounts paid by Wind Company
to Utility (or Utility to Wind Company) in accordance to paragraph "2.13 Summer
Emergency Conditions" of this Agreement.
City, "City" is the City of Lubbock, Texas.
Commence Construction. "Commence construction" shall mean the commencement of
excavation, installation or construction of improvements at the Local Wind Power Facilities,
but does not include survey or wind measurement work, the installation of fencing, temporary
storage buildings or trailers, placement of equipment or construction materials at the Local
Wind Power Facilities or the construction of roads.
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1.
Lubbock Wind Program Agreement
September 22, 1998
Energy Definitions. Sources of wholesale energy .(Ew..) and deliveries of retail energy by the
Utility (ER..) under the Wind Program are defined as follows:
Ew ,Wind Energy (kWh) delivered to the Utility System from initial three (3) WTGs
of Local Wind Power Facility
Ew L,,,�a Wind Energy (kWh) delivered to the Utility System from Local Wind Power
Facilities other than the initial three (3) WTGs
Ew Remote Wind Energy (kWh) wholesale exchanged and delivered to Utility system
from other sources including the net of off -system sales and purchases
ER MAe-up Energy delivered to Wind Customers by Utility due to shortfalls in Wind
Company meeting Wind 'Customer billings
ER wind Prom Wind Energy billed to Wind Customers under Wind Program
f Ew Surplus Surplus Wind Energy delivered to the Utility system and not billed to Utility
N Wind Customers
ER„„ . Surplus production by the initial three (3) WTG's in previous months that can
be used to make up production shortfalls in subsequent months, during the same Wind
h Account annual period. Eere energy may not be carried from one annual period to
4 ' the next annual period.
Interconnection Point. The "Interconnection Point" is the location of the disconnect switch
isolating the Local Wind Power Facilities from the Utility facilities or designated points of
delivery of wholesale transmission voltage transactions.
Local Wind Power Facilities are wind turbine generators interconnected directly to Utility
distribution or transmission facilities, or interconnected to the facilities of other West Texas
Municipal Power Association (WTMPA) members. Local Wind Power Facilities that deliver
Wind Energy to the Utility under the Wind Program are limited to i.) the equivalent of twenty
(20) wind turbine generators (WTGs) comparable to the initial three installed WTGs and
100kW of locally installed solar facilities and ii.) compliance with the terms and conditions
set forth in paragraph 2.11 of this Agreement.
Month. (for calculating Wind Program charges) Wind Energy delivered for a month is Wind
Energy delivered by the Wind Company to the Utility system during a calendar month period.
Wind Energy billed during a month is all Wind Energy billed to a Wind Customer for a
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Lubbock Wind Program Agreement
September 22, 1998
billing period ending during a calendar month period.
Remote Wind Power Facilities are Wind Power Facilities interconnected to circuits other than
those of the Utility or WTMPA members. Other Wind Power Facilities may also generate
Wind Energy through the use of renewable energy production technologies such as wind,
biomass, geothermal, solar, and hydroelectric only after installation of three (3) local WTG's.
Summer month. (May, June, July, August, and September)
Utility. "Utility" is Lubbock Power & Light, a wholly owned entity of the City of Lubbock,
Texas and includes its successors and assigns.
Utility Fee. "Utility Fee" is a fee charged per kilowatt hour (kWh) by the Utility to Wind
Customers for all customer distribution, administration, meter reading, firming, system losses,
wholesale exchanges, system maintenance, and billing to deliver intermittent wholesale wind
energy from Wind Company interconnection point to serve each Wind Customer's electric
energy requirements at point of retail delivery. Utility Fee does not include customer service
charges applicable to rate class of customer, City franchise fees, and/or applicable sales taxes.
Additionally, the Utility Fee does not include charges for capacity during Summer Emergency
Conditions for customers supplied in additional to the initial three WTGs.
Wind Company. The "Wind Company" is Texas Wind Power Company, a Texas Corporation,
and includes its agents, successors and assigns.
Wind Customer. A "Wind Customer" is a Utility customer that chooses to participate in the
Wind Program marketed and administered by the Wind Company.
Wind Customer Terms. "Wind Customer Terms" is the combination of the Wind Rate, the
Wind Period and the Wind Subscription.
Wind Energy. "Wind Energy" is electric energy produced by Wind Power Facilities as defined
by paragraph 1.2. Wind Energy includes energy exchanged into the Utility by the Wind
Company to compensate for Wind Energy exchanged out of the Utility by the Wind
Company.
Wind Energy Charge. "Wind Energy Charge" is the total amount billed a Wind Customer for
Wind Energy usage. It is calculated as follows: Wind Rate multiplied by the lesser of the
Wind Subscription or the actual customer usage.
Wind Period. "Wind Period" is the minimum period of commitment of the Wind Customer to
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use Wind Power for all or a portion of its electrical power needs. If no period is designated
by the Wind Customer, the Wind Customer may elect to end participation in the Wind
Program at the end of the next billing period with three (3) days notice to Wind Company.
Wind Power Facility. The "Wind Power Facility" is wind turbine generators or wind machines
designed for the generation of electrical power from wind power, including without limitation
associated towers, foundations, communications equipment, meteorological towers,
operations/equipment buildings and directly related equipment such as improvements to
deliver electrical power to the utility grid or other system, such as transformers, electrical
transmission lines, electrical distribution lines, metering, communications and utility
interconnection equipment. Wind Power Facilities consist of "Local Wind Power Facilities"
and "Remote Wind Power Facilities."
Wind Program. "Wind Program" is the collective activities of the Wind Company to provide
services to Wind Customers.
Wind Program year. October 1 through September 30 of each year of Wind Program.
Wind Rate. "Wind Rate" is the cents/kWh paid by the Wind Customer for Wind Energy from
the Wind Program. The Wind Rate includes a Utility Fee paid by the Wind Company to the
Utility through the Wind Account. The Wind Rate does not include customer service charges,
applicable sales tax, and/or City franchise fees. These other fees are added to the customer
bill separately.
Wind Subscription. "Wind Subscription" is the maximum block of wind energy expressed in
kWh's that will be purchased at the Wind Rate. In instances where the Wind Customer
chooses to purchase a specific percentage of its energy from the Wind Program Power, an
amount in kWh's will be calculated based on average annual usage if the Utility's billing
system is unable to accommodate variable monthly Wind Subscription amounts in a cost
effective manner.
Winter month. (October, November, December, January, February, March, and April)
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2. Wind Power Facilities
2.1 Operations and Maintenance
The Wind Company shall render efficient service, make repairs properly, and interrupt service
only for good cause. All installations made by the Wind Company shall be in good, safe
condition and maintained in such condition at all times. Local Wind Power Facilities within
the City limits or on City owned property shall comply with applicable City zoning
requirements and building codes.
2.2 Operating Committee
The interconnected operations of the Parties' facilities, as provided for in this Agreement,
shall be coordinated, where necessary, through an Operating Committee consisting of a
representative of each of the Parties. Within 30 days after the date this Agreement is
executed, each Party shall designate by written notice to the other Party the representative
who will be authorized to act on its behalf on the Operating Committee. A Party may change
its representative upon written notice to the other Party. The duties of the Operating
Committee shall be as follows:
a. To establish operating, scheduling and control procedures;
b. To coordinate maintenance schedules;
c. To coordinate accounting and billing procedures necessary under this Agreement;
d. To perform those duties which this Agreement requires to be done by the Operating
Committee, and such other duties as may be required for the proper functioning of this
Agreement.
If the Operating Committee is unable to agree after 15 days on any matter coming under its
jurisdiction, it shall refer the matter in writing to the chief executive officers of the Parties. If
the chief executive officers are unable to agree on the matter within 45 days after the referral,
either Party may only then submit the matter to an administrative or civil court of jurisdiction
to resolve.
2.3 Safety Requirements
The Wind Company shall install, maintain and use commonly accepted industry practices for
preventing failures and accidents.
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The Local Wind Power Facilities interconnected to the Utility are subject to inspection by the
Utility at any time with reasonable prior notice to the Wind Company. Wind Company will
disconnect any individual wind turbine generator ("WTG") if unsafe conditions are identified
which cannot be promptly corrected. Upon correction of unsafe conditions, the WTG will be
reconnected to the Utility.
If Utility finds unsafe conditions and/or WTG's operating outside of required specifications
and WTG is not disconnected from the Utility, then Utility has the right to disconnect
interconnection point from its system with reasonable notice to Wind Company.
2.4 Quality of Product
The electric power and energy delivered by the Wind Company's Local Wind Power Facility
to the Utility's electric transmission and distribution system shall meet the standards
established and complied with by the Utility. Any subsequent changes to these standards will
.., be accommodated by the Wind Company within a reasonable period of time after the Wind
Company receives written notice of such change.
.• The Local Wind Power Facility shall deliver electricity at a minimum power factor of .95
lagging (no leading power factor allowed.) At a minimum, the Local Wind Power Facility
will be designed to allow no more than three percent (3%) total harmonic voltage distortion at
T` the point of interconnection. The Wind Company shall deliver energy at the appropriate
distribution or transmission voltage of the Utility's facilities.
2.5 Design and Specifications
The design and specifications for the Local Wind Power Facility's synchronous electrical
interconnection to the Utility (including underground conduit, transformers, controls,
distribution disconnect, and meters) shall be reviewed with Utility engineers for them to
~" approve for compliance with the standards established by and complied with by the Utility
prior to commencement of construction. Approval shall not be unreasonably withheld. The
Utility will be allowed 14 working days to provide its comments and/or objections. If, by 5
+� p.m. on the 14th working day following submittal to the Utility, the Utility has not provided
comments, objections, or approval, it shall be deemed that the Utility has approved the
r, submittal. Any comments or objection provided by the Utility must specifically identify the
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objection and the Utility standard, if applicable, under which the objection is made.
2.6 Metering & Interconnection
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Electric metering for measurement of power and energy delivered and received through any
point of interconnection under this Agreement shall be selected, installed and maintained in
accordance with the latest issue of American Standard Code for Electricity Metering.
Changes in the American Standard Code for Electricity Metering will be accommodated
within a reasonable period of time by the Wind Company after the Wind Company receives
notice of the change.
The Wind Company shall own, operate and maintain metering equipment on its side of the
rh' interconnection of the Local Wind Power Facilities to the Utility Facilities. Metering at
generation voltage by the Wind Company at Local Wind Power Facilities shall be permitted
provided that appropriate calculations of transformer losses and line energy losses are
incorporated into power and energy delivered at the Utility Facility point of interconnection.
The Utility is responsible for the cost of owning, operating and maintaining metering for
wholesale transmission voltage (69kV or greater) Wind Energy delivered to and from the
Utility facilities if needed. Method of calculation for billing shall be agreeable by both the
Wind Company and the Utility.
Installation, operation, and maintenance costs for metering equipment for distribution voltage
facilities (68kV or less) may be installed, owned and operated by the Utility and shall be
reimbursed by the Wind Company through a monthly payment equal to 1.25% (one and one
quarter percent) multiplied times the Wind Company and Utility agreed installation costs of
metering facilities.
All electric metering equipment, up to the point of interconnection, shall be maintained by the
respective owner and shall be tested at least annually by such owner. The owner of the
metering equipment shall notify the other Party at least two weeks in advance of when meters
are to be tested or when changes in metering are to be made, so that the other Party may
witness the test or changes in metering. After proper notification to the other Party, the
owner may proceed with the scheduled tests or work regardless of whether a witness is
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present.
r Overall metering accuracy, which includes errors in current and potential transformers and
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errors in meters, shall be maintained so that the error in registration shall. not exceed two
*i4 percent (2%). Should an error in registration exceeding two percent be found, notice shall be
given to the other Party and adjustments shall be made in the interchange accounts. Such
adjustments shall apply to the actual period during which such inaccuracy existed, but if the
period cannot be determined, the adjustment shall apply to one-half of the period since the
date of the last test of the metering equipment. Should metering equipment fail to register,
the power and energy delivered and received shall be determined by agreement of the Parties.
The cost of modifications to Utility facilities required to accommodate the interconnection of
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Lubbock Wind Program Agreement
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Local Wind Power Facilities shall be the responsibility of the Wind Company.
2.7 Right of Installation and Removal
The Utility will make available suitable space on its electrical system for installation of the
necessary equipment, apparatus and devices required for the Wind Company's performance of
this Agreement.
Any and all equipment, including disconnect switches, circuit breakers, meters, transformers,
turbines, buildings, apparatus and devices caused to be placed or installed by one Party on, or
in, the premises of the other Party shall be and remain the property of the Party owning such
equipment, including disconnect switches, circuit breakers, meters, transformers, turbines,
apparatus and devices regardless of the mode or manner of annexation or attachment to the
premises. Interconnection equipment specifications and configuration is subject to Utility
review per paragraph 2.5 of this Agreement.
Installation, operation, and maintenance costs for interconnection equipment installed, owned
and operated by the Utility shall be reimbursed by the Wind Company through a monthly
payment equal to 1.25% (one and one quarter percent) multiplied times the Wind Company
and Utility agreed installation costs of the interconnection facilities.
2.8 Use of Facilities
Each Party shall operate and maintain its electrical power system up to the interconnection
point at its own expense as required for satisfactory coordination of operation.
Wholesale exchanges of Wind Energy into and out of the Utility's system from the Initial
Three WTG's of the Local Wind Power Facility will not be subject to transmission charges by
the Utility. Wholesale exchanges to other WTMPA members, including the City of
Brownfield, or other Utilities or energy wholesalers shall be accommodated under the
coordination of the Operating Committee per paragraph 2.1. Utility shall not be responsible
for any wheeling or transmission charges of other utilities related to Wind Company
exchanges of Wind Energy.
Wholesale wheeling transactions by the Wind Company in and out of the Utility system for
energy in excess to that produced by the initial WTG's are subject to actual wheeling costs of
the Utility. The Wind Company is responsible for wheeling costs of other utilities or energy
wholesalers as a result of exchanges in or out of the Utility system.
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2.9 Delivery
All Wind Energy delivered from Local and Remote Wind Power Facilities to Utility facilities
under this Agreement shall be of the character commonly known as three-phase, sixty hertz
energy and shall be delivered at the Utility's nominal voltages at the points of delivery.
Under the Wind Program, Remote Wind Power Facilities may deliver Wind Energy to the
Utility system either directly or through wholesale transmission voltage exchanges.
Wind Energy delivered from Remote Wind Power Facilities and directly produced at Local
Wind Power Facilities shall both comply with power quality requirements of paragraph 2.4 of
this Agreement.
2.10 Service Conditions
The systems of the Parties shall normally be operated in an electrically interconnected fashion,
except as otherwise from time to time arranged between the Parties or under emergency
conditions. Nothing contained herein shall restrict or limit either Party in effecting other
interconnection agreements or interconnections with other systems.
2.11 Local Wind Power Facility Installed Capacity
The Local Wind Power Facility initially shall consist of three wind turbine generators
("Initial Three WTGs") with rotor diameters of about 48 m and with generator name plate
capacities of about 750kW each. Additional WTGs, up to a maximum of twenty (20) WTGs,
may be installed as Local Wind Power Facilities for delivery of energy to the Wind Program.
WTG installation at the Local Wind Power Facility beyond the Initial Three WTGs shall be
allowed when i) Wind Program energy demand exceeds energy production capabilities of the
Local Wind Power Facility, ii) the facilities are otherwise in compliance with paragraphs
2.1, 2.3, and 2.4, and iii) the written approval of the Utility, not to be unreasonably withheld,
is obtained. Written approval by the Utility under section iii.) of this paragraph is subject to
the Utility's review of Wind Company plans and specifications for local WTG installations
additional to the Initial Three WTG's and subsequent confirmation that these additional local
WTG's will not result in degradation of quality of electric power of utility and/or have
negative impact on the operation of the Utility. The use of Wind Energy generated from
other Local Wind Power Facility renewable technologies, such as larger wind turbines, small
wind turbines, and/ or solar up to 100kW shall be considered additional WTGs based on the
equivalent annual energy production of the initial three WTGs. This paragraph 2.11 applies
only to Local Wind Power Facilities.
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1 Lubbock Wind Program Agreement
September 22, 1998
2.12 Low Load Conditions
The Wind Company shall independently be responsible for providing transmission and
wheeling arrangements for the WTGs other than the initial three WTGs to exchange energy
out of the Utility's system and/or curtail Wind Power Facility production during "Low Load
Conditions." "Low Load Conditions" are hours when minimum economical operations of
local Utility owned base load generating plants and firm purchases from wholesale suppliers
exceed the Utility's load requirements. Low Load Conditions requiring curtailment of Wind
Energy delivery and/or exchange of Wind Energy out of the Utility system shall not exceed
175 hours (2%) per annual period as calculated using the running average of the past three (3)
year period. The terms of this paragraph 2.12 do not apply to the initial three WTGs of the
Local Wind Power Facility. Additional WTGs in the Local Wind Power Facility are subject
to terms of this paragraph 2.12.
2.13 Summer Emergency Conditions
The Wind Company shall be responsible for providing capacity during "Summer Emergency
-• Conditions" equal to the estimate aggregate load of Wind Customers served by Wind Power
Facility installations additional to the initial three WTGs. Summer Emergency Conditions are
hours during May, June, July, August, or September where Utility wholesale non -firm
r= suppliers to the Utility curtail capacity. Summer Emergency Conditions shall not exceed an
average of 175 hours (2%) per annual period as calculated using the running average of the
past three (3) year period. Wind Power Facility capacity provided for the purposes of
Summer Emergency Conditions shall be calculated as the average of each fifteen minute
average of the capacity measured in kilowatts (kW) provided by the combination of Local
Wind Power Facility production and Wind Energy wholesale exchanges into the Utility
r" system during a Summer Emergency condition period.
The corresponding Wind Customer aggregate load requirements during a Summer Emergency
Condition period shall be calculated based on the percentage of Wind Energy supplied to
Wind Customers during the Wind Customer's billing period ending during the same month of
the Summer Emergency Condition period as a portion of the total aggregate estimated load
requirements of the Wind Customers. The calculation of the aggregate estimated load of the
Wind Customers shall be made in accordance with agreed upon load aggregation calculations
and may be supplemented by actual load measurements at the Wind Company's expense and
discretion. The calculation of Wind Customer Summer Emergency Load Condition load
requirements shall be made as follows:
[Wind Energy to Wind Customers during periods ending in month of Summer
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Emergency Condition
divided by
Total Energy delivered to all Utility Customers (incl. Wind Customers during periods
ending in month of Summer Emergency Condition)]
all multiplied by the
Total peak kW of demand during the Summer Emergency Condition.
The Wind Company is responsible for the costs to independently or through the Utility
° provide for shortfalls in Wind Company -provided capacity compared to Wind Customer load
requirements (as calculated in the preceding paragraph) during Summer Emergency Condition
periods. The capacity shortfall during each Summer month (May, June, July, August and
September) shall be the calculated as the weighted average of all capacity shortfalls during
�.., Summer Emergency Condition periods that month. The cost for the Utility to provide
capacity to the Wind Company shall be equal to the weighted average of the monthly firm
capacity charges of the Utility's wholesale suppliers.
Should the Wind Company capacity supply during the Summer Emergency Condition periods
exceed Wind Customer load requirements, the Utility shall provide the Wind Company with a
capacity payment equal to the average monthly capacity cost of its wholesale suppliers.
At the time of this Agreement execution, the average monthly capacity costs equals the
*" monthly firm demand charge of the Utility's wholesale supplier, Southwestern Public Service
Company of Amarillo, Texas.
The terms of this paragraph 2.13 do = apply to the Initial Three WTG's of the Local Wind
Power Facility. Additional WTG's in the Local Wind Power Facility =r subject to terms of
this paragraph 2.13.
2.14 Notice of Low Load Conditions or Summer Emergency Conditions
The Utility shall provide the Wind Company with a minimum one hour advance notice of the
beginning of a Low Load Condition period or a Summer Emergency Condition period in
accordance with procedures established by the Operating Committee. Failure to give such
notice will result in the Wind Company not being obligated to take the steps required during a
Low Load Condition period or a Summer Emergency Condition period until one hour notice
is provided.
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2.15 Wholesale Exchanges of Wind Energy
The Wind Company may deliver Wind Energy to the Utility system through transmission
voltage wholesale exchanges during periods in which the Wind Power Facility local
production plus the Utility's minimum economic operation of local Utility owned base -load
generating plants and firm purchases are less than the Utility's minimum load requirements.
The Wind Company may deliver Wind Energy to the Utility system to serve Wind Customers
from locations other than the Local Wind Power Facility after the installation of the initial
three WTGs. Exchanges of Wind Energy generated at Remote Wind Power Facilities and
delivered to Wind Customers cannot exceed that produced at Local Wind Power Facilities as
accounted for on an annual basis using a three year running average of Wind Energy
exchanges and operations. Wind Energy may not be delivered through wholesale
exchanges into the Utility system during Low Load Condition periods, provided that notice of
the Low Load Condition period has been provided as required in paragraph 2.14. Wind
Energy generated by the Local Wind Power Facilities may be exchanged out of the Utility
System as the Wind Company's discretion at any time. Wind Energy exchanged out of the
Utility system from a Local Wind Power Facility and later during the same annual period
exchanged back into the Utility system is considered Local Wind Power Facility generated
Wind Energy.
2.16 West Texas Municipal Power Agency ("WTMPA") Agreement
The Utility is a member of WTMPA and agrees to provide for the exchange of Wind Energy
between the Utility and other WTMPA members provided that the Wind Company reimburses
the Utility for additional costs to WTMPA associated with Wind Company Wind Energy
exchanges.
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Lubbock Wind Program Agreement
September 22, 1998
3.0 Wind Energy Program Administration and Marketing
3.1 Administering Wind Customers
The Wind Company shall maintain a list of Wind Customers and the associated Wind
Customer Terms for each Wind Customer in a manner compatible with Utility customer
information system and monthly billing cycles. The set up of computers and software for the
coordination of Wind Company data with Utility data is the responsibility of the Wind
Company.
3.1.1 Adding. Changing. Deleting Wind Customers in Coordination with Utility
The Wind Company shall provide the Utility with an update containing additions, changes,
L and/or deletions to the list of Wind Customers and/or Wind Customer Terms. These updates
shall be provided in a format that is compatible with the Utility's customer information system
and at intervals compatible with monthly billing cycles.
3.1.2 Changing Wind Subscription
a Changes related to Wind Energy subscription quantities or percentages of existing Wind
Customers shall be limited to once per three (3) month period. Additional changes to Wind
Energy subscription quantities at the discretion of the Wind Company will be subject to
a
additional administration charges by the Utility.
3.1.3 Changing Wind Term
The Wind Company will offer all Utility customers the option to participate in the Wind
Program with the option to terminate participation in the Wind Program at any time. The
Wind Company is responsible for maintaining records of the term or period of time in which
the Wind Customer is subscribed to the Wind Program. At the expiration of the Wind Term,
or each month period, whichever is applicable, the Wind Customer may discontinue
participation in the Wind Program upon notice to the Wind Company effective at the end of
the current monthly billing period. It is the Wind Company's responsibility to provide
accurate information to the Utility on Wind Customers that discontinue participation in the
Wind Program.
3.1.4 Changing Wind Rates
Changes by the Wind Company to the Wind Rate of Wind Customers shall be limited to once
per twelve (12) month period. Additional changes to Wind Rates at the discretion of the
Wind Company will be subject to additional administration charges by the Utility.
3.1.5 Customer Information from Utility
The Utility shall provide to the Wind Company additions, changes, and/or deletions to
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customers from the Utility's customer information system as appropriate. At a minimum, the
Utility shall provide to the Wind Company a list of customers as allowed by law within two
(2) months of the execution of this Agreement and shall provide to the Wind Company an
updated list every six (6) months thereafter. The list of customers shall include the customer
account number, the customer name, address, billing address, phone number and historical
energy use and demand use and the Utility service tariff. The customer list shall be supplied
in a computer format as coordinated between the Parties.
Additionally, the Utility will notify the Wind Company promptly when a Wind Customer
ceases to be a customer of the Utility. Such notification must occur prior to the Utility
sending a final bill to the Wind Customer.
3.1.6 Wind Company Resolution of Customer Complaints
The Wind Company is responsible for the resolution of any customer complaints related to the
Wind Program in a timely and professional manner. The Wind Company shall use its best
efforts to ensure that the Wind Program is operated in a manner that is not detrimental to
Utility operations. The Wind Company's responsibility to resolve customer complaints
adequately is a material provision of this Agreement subject to Termination by Default
conditions per Article 11.0 of this Agreement.
3.1.7 Utility Billing System
The Wind Company will pay for the' reasonable labor costs and reasonable other costs
actually incurred by the Utility to make modifications to the Utility customer billing system
requested by and approved by the Wind Company and made solely to accommodate the Wind
Program. Prior to the Utility incurring costs related to modification of the billing system
solely to accommodate the Wind Program, the Utility will inform the Wind Company of any
billing system changes needed. The Utility will provide to the Wind Company a cost estimate
and a work schedule. The Wind Company will be allowed to review and approve the cost
estimate and work schedule prior to the start of work. In no event will the Wind Company be
required to pay for system upgrades or modifications that were planned by the Utility as a
part of its ongoing maintenance and upkeep of the system nor will the Wind Company be
required to pay for system changes or upgrades that are not solely used to accommodate the
Wind Program.
The Utility will notify the Wind Company of any planned billing or computer system
upgrades or modifications and will allow sufficient time for the Wind Company to comment
and/or request certain changes or additions to the planned upgrade. Such requested changes
will be accommodated according to the terms of this paragraph.
3.1.8 Utility Invoicing of Wind Customers
Each Wind Customer will be invoiced by the Utility jointly for services delivered by Wind
7.1
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Company on the same invoice used by the Utility. Based on customer information provided
by the Wind Company, the Wind Customer will be invoiced for participation in the Wind
Program by the Utility monthly in connection with the normal Utility billing cycles. The
portion of the Utility invoice for Wind Energy will reflect the name and, if feasible, the
graphic logo of the Wind Company operator/service, the Wind Rate in $/kWh, the quantity of
Wind Energy used (kWh) and a Wind Energy Charge.
3.1.9 Wind Customer Administration Audit
The -Wind Company's records of Wind Customer registration and Wind Customer Terms shall
be subject to periodic review by the Utility upon request. The Wind Company is responsible
for maintaining all records of customer participation and Wind Power Facility production.
Records of customer participation and production will be provided to the Utility upon request.
3.1.10 Restrictions of Release of Confidential Customer Information
Nothing in this Agreement, including the provisions in Section 3.1, 3.1.1 and 3.1.5, shall be
construed as to authorize or require either Party to disclose information in which the customer
has designated to remain confidential or disclose information that should remain confidential
by law.
3.2 Wind Account
3.2.1 Wind Account Management and Administration
The Wind Program funds are managed using a Utility -managed Wind Account.
3.2.2 Wind Account Reportingby the Wind Company by the 5th of each Month
By the 5th calendar day of the month, the Wind Company shall provide reporting on the
Wind Program in accordance with the terms of the Agreement to the Utility as required to
administer and manage the wind program.
3.2.3 Wind Account Reporting by the 1 tility by the 5th of each Month
By the 5th calendar day of the month, the Utility shall provide reporting on the Wind
Program in accordance with the terms of the Agreement to the Wind Company as required to
administer and manage the wind program.
3.2.4 Wind Account Billing Payment Information by Wind Company by loth of each Month
By the loth calendar day of the month, the Wind Company shall provide. the Utility with a
comprehensive billing and accounting for the Wind Account.
3.2.5 Wind. Account Funding by the Wind Company by the 15th of each Month
By the 15th calendar day of the month, the Wind Company shall fund the Wind Account in
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accordance with the billing and accounting for the Wind Account. The Wind Company shall
make a deposit, if applicable, into the Wind Account for Summer Capacity (SWsummercepaciy)
provided by the Utility in accordance with calculations of paragraph 3.4.3 of this Agreement.
If the Utility provides Utility Make-up Energy to Wind Customers during the previous month
as calculated in accordance with paragraph 3.4.2 of this Agreement, the Wind Company shall
make Utility Make-up Payments (SR Mkl-,p) to the Wind Account.
3.2.6 Wind Account Funding by the Utility by the 15th of each Month
By the 15th calendar day of the month, the Wind Company shall fund the Wind Account in
accordance with the billing and accounting for the Wind Account. The Utility shall make a
deposit into the Wind Account equal to the previous month's Wind Energy Charges (SR wmd
p,.,,.) to Wind Customers for all Wind Customer billing periods ending during the previous
calendar month. If the Wind Company provides excess Summer Capacity to the Utility
during the previous month in accordance with calculations of paragraph 3.4.6 of this
Agreement, the Utility shall make additional Summer Capacity Charge (Sw summer capacity)
payments to the Wind Account. If the Wind Company provides Surplus Wind Energy to the
Utility during the previous month in accordance with calculations of paragraph 3.4.5 of this
Agreement, the Utility shall make additional Surplus Wind Energy Charge (SW srh.) to the
Wind Account.
3.2.7 Wind Account Payments to Utility by the 20th of each Month
By the 20th of each month, payments from the Wind Account to the Utility shall be made for
Utility Fee payments, Utility Make-up Charge payments (if applicable), and Utility Summer
Capacity payments (if applicable.) Utility Fee payments are calculated in accordance with
paragraph 3.4.1 of this Agreement. Utility Make-up payments (if applicable) are calculated in
accordance with paragraph 3.4.2 of this Agreement. Utility Summer Capacity payments (if
applicable) are calculated in accordance with paragraph 3.4.3 of this Agreement.
3.2.8 Wind Account Payments to Wind Company by the 20th of each Month
By the 20th of each month, payments from the Wind Account to the Wind Company shall be
made for Wind Energy Charges calculated in accordance with paragraph 3.4.4 of this
Agreement, less both 1.) Utility Fee payments due to Utility calculated accordance with
paragraph 3.4.1 of this Agreement and 2.) Utility Make-up payments (if applicable) calculated
in accordance with paragraph 3.4.2 of this Agreement. Payments from the Wind Account
shall be made to the Wind Company for Surplus Wind Energy Charges (if applicable)
calculated in accordance with paragraph 3.4.5 of this Agreement. Payments from the Wind
Account shall be made to the Wind Company for Summer Capacity Charges (if applicable)
calculated in accordance with paragraph 3.4.6 of this Agreement.
3.2.9 Wind Account Annual Reconciliation and Wind Customer Rebates "if ap-plicable)
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The Wind Account shall be reconciled to a zero balance on a 12 month basis. The twelve
month period for the Wind Account begins on October 1st each year and ends on the last day
of September.
The calculation of reconciliation amounts and distribution of the refunds is the responsibility
of the Wind Company. The Utility will cooperate with the Wind Company by supplying
information necessary for the calculation of the Wind Customer refunds. Distributions from
the Wind Account and Payment owed to the Wind Account shall be made on or before
November 1 of each year to reconcile the Wind Account balance to a zero balance.
The Wind Company shall receive all customer rebate distributions from the Wind Account by
November 1 each year. The Wind Company will in turn distribute the rebates to the Wind
Customers on or before December 1 of each year. The Wind Company may offer to the
Wind Customers the opportunity to donate rebates to charities. Rebate amounts of less than
$10.00 to an individual Wind Customer may be designated for donation to charitable
organizations as part of the terms and conditions of Wind Customer subscriptions.
Any residual amounts in the Wind Account from interest on account balances, non -canceled
rebate checks, and rebate amounts of less than $10.00 each customer shall be distributed to
the Wind Company on or before November 1 to be distributed by the Wind Company to
charitable donations on or before the following December 1 of each year. Amounts not
designated to charitable organizations by Wind Customers will be applied as a credit to Wind
Customer accounts.
3.2.10 Wind Account Audit
The records of the Wind Account will be available for review by the Wind Company upon
request.
3.3 Wind Program Marketing
3.3.1 Wind Company: Contractor to Utility
The Wind Company is a service contractor to the Utility. Nothing in this Agreement shall be
construed to characterize the Wind Company as a retail power marketer or distributor. The
Utility is the retail power marketer and distributor.
3.3.2 Independent Marketing to Utility Customers
The Utility agrees to allow the Wind Company to market a Wind Program to Utility
customers. The Wind Company will determine the means and methods to market the Wind
Program subject to the terms and conditions of this Agreement, including paragraph 3.3.5.
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3.3.3 Billing Insert
The Utility may allow the Wind Company to provide envelope inserts in the monthly
customer billing, but subject to Utility approval and as permitted by City policy and /or law.
The Utility will allow the Wind Company to provide envelope inserts (of a form and content
approved by the Utility) into the monthly customer billing at least once within six months of
execution of this Agreement as permitted by City policy. The insert will be printed on paper
meeting Utility requirements.
3.3.4 Incorporation of Utility Marketing Objectives
The Wind Company shall incorporate Utility marketing objectives into marketing programs as
appropriate, including coordinating marketing programs with marketing consultants retained
by the Utility.
3.3.5 Restrictions on Marketing
The Utility will have the right to approve any marketing materials stating that the Wind
Program is conducted in conjunction with, or is sponsored by Lubbock Power and Light.
Additionally, use of the name "Lubbock Power and Light" and/or the logo of Lubbock Power
and Light in printed marketing materials or verbal marketing programs will be subject to
Utility approval. The Utility will have the right to review and approve telemarketing scripts
where (1) such scripts contain language stating that the Wind Program is conducted in
conjunction with, or is sponsored by Lubbock Power and Light and (2) the telemarketing
script is for a marketing program directed solely to Utility customers. Approval shall not be
unreasonably withheld. For items which the Utility must approve under this paragraph, the
Utility will be allowed five working days to provide its comments and/or objections. If, by 5
p.m. on the fifth working day following submittal to the Utility, the Utility has not provided
comments, objections, or approval, it shall be deemed that the Utility has approved the
submittal. Any comments or objections provided by the Utility must specifically describe the
objection and the reason for the objection. Nothing in this Agreement shall be construed as to
allow the Wind Company to use the Utility's name or logo for any marketing efforts that are
not first reviewed and approved by the Utility following the terms and conditions of this
paragraph.
For items for which the Utility is not granted a specific right of approval under this
subsection, the Wind Company will still be required to provide such items to the Utility. The
Wind Company shall provide these marketing materials to the Utility so that the Utility may
confirm that materials are in compliance with the terms and conditions ,of this Agreement.
The Wind Company shall not engage in marketing activities that are derogatory of the
Utility's or City of Lubbock's other services and operations. If the Utility notifies Wind
Company that any particular marketing activity or program is derogatory to Utility operations,
the Wind Company shall discontinue these particular activities or programs immediately.
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3.3.6 Marketing Non -Exclusivity after Two (2) Years
The Utility may after a period of two years from the execution of this Agreement offer other
energy providers using wind turbine generators the opportunity to provide services to Utility
customers, but only under terms and conditions no more favorable than those applicable to
Wind Company at that time. During the first two years of this Agreement, the Wind
Company shall be offered the exclusive right to operate a Wind Program.
The Wind Company may offer similar marketing services to customers of other utility
providers outside the area served by the Utility or may sell the Wind Energy to wholesalers at
the Wind Company's sole discretion. The Wind Company may not offer similar marketing
services to customers located within the City of Lubbock, but served by another utility.
3.3.7 Utility Coordination
The Wind Company shall provide the Utility with all information regarding terms and
conditions of the Wind Program to the Utility. The Wind Company may add, change, or
delete terms and conditions of the Wind Program at its discretion in accordance with the
terms and conditions in paragraph 3.1.
The Utility will, upon customer request, provide the customer with information on the
availability of Wind Company Wind Programs or will notify the Wind Company of the
customer's request for information.
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3.4 Calculation of Charges
3.4.1 Utility Fee
The Utility Fee is set at a fixed rate of $0.005 (five mils) per kWh for Wind Energy delivered
from the initial three WTGs of the Local Wind Power Facilities for a period of ten (10) years
from commencement of construction. The Utility Fee is set at a fixed rate of $0.010 (ten
mils) per kWh for all energy delivered to customers from Wind Power Facilities in excess of
the initial 3 WTGs until December 31, 2002. The Utility Fee may be adjusted by the Utility
based on actual audited distribution costs, calculated in accordance with existing municipal
accounting practices for distribution wheeling costs, after the expiration of the time periods set
forth above. The Utility Fee does not include applicable sales taxes, city franchise fees and
Utility customer charges.
It will be the responsibility of the Utility to collect and pay all applicable taxes and fees to the
appropriate authorities. The Wind Energy charge does not include sales taxes, City Franchise
fees and Utility Service Charges.
The Utility Fees through December 31, 2002 per this Agreement do not reflect that actual
costs of services of the Utility and are provided for the specific purpose of the development
of this Wind Program. This Agreement shall be amended as required to incorporate changes
in federal and/or state electrical regulations as they apply to the Wind Company and/or the
Utility.
3.4 2 Utility Make -Up to Wind Program
From October 1 through April 30 of each annual period (Fall, Winter, and Spring) the Utility
shall provide Make -Up energy to the Wind Program in the event less Wind Energy is
delivered to the Utility by the Wind Company than is required for the Wind Program.
Additionally, Wind Energy delivered to the Utility in succeeding months in excess to the
requirements of the Wind Program may credited towards past months Make -Up energy
provided by the Utility (if applicable.)
a
During the Summer months (billing periods ending in May 1-September 30) and at the end of
each annual period, the crediting of past months excess supply of Wind Energy by the Wind
Company shall not be allowed (except in accordance with paragraph 3.4.7 of this Agreement.)
r' That is, each Summer month the Wind Company shall be required to provide Wind Energy
equal to that required of the Wind Program, or Utility Make -Up charges shall be payable to
the Utility. No carrying of excess Wind Energy from month to month as allowed during
Winter," Spring, and Fall months shall be allowed during Summer months except in
accordance with paragraph 3.4.7 of this Agreement.
Utility Make-up charges are calculated to be equal to the "energy" portion of each customer's
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applicable tariff during the month ending period in which Utility Make-up energy was
required. To the extent that a Utility Make -Up energy was utilized for all Wind Customers,
the applicable tariff "energy" rate shall be calculated based on the average of all Wind
Customer applicable tariffs.
3.4.3 Utility Summer Capacity to Wind Program
During the Summer months (billing periods ending May 1- September 30), the Wind
Company shall provide Summer Emergency Capacity in accordance with paragraph 2.13 and
2.14 of this Agreement. Should the Wind Company fail to provide Summer Emergency
Capacity, then the Utility shall be payable Summer Capacity payments calculated in
accordance with paragraph 2.13 of this Agreement.
3.4.4 Wind Energy to Wind Program
The Wind Company is free to set Wind Rates at various pricing structures and offer various
terms of commitment to customers in accordance with this Agreement's terms.
3.4.5 Surplus Wind Energy
Any Wind Energy delivered to the Utility by the Wind Company in excess to the
requirements of the Wind Program shall be purchased by the Utility at a rate equal to the
r.. lesser of variable cost of own generation or non -firm purchases of energy purchased and
produced during that same period. Only during Fall, Winter and Spring months or in
accordance with paragraph 3.4.7 may these Surplus Wind Energy deliveries be re -designated
in future months towards shortfalls in Wind Energy required of the Wind. Program.
a Dispatchable or schedulable energy deliveries may allow additional capacity payments by the
Utility to the Wind Company for energy deliveries.
3.4 6 Surplus Wind Summer Capacity
During the Summer months (billing periods ending May 1- September 30), the Wind
Company shall provide Summer Emergency Capacity in accordance with paragraph 2.13 and
2.14 of this Agreement. Should the Wind Company provide excess Summer Emergency
Capacity, then the Wind Company shall be payable Summer Capacity payments calculated in
accordance with paragraph 2.13 of this Agreement.
3.4 7 Wind Energy Reserve Adjustment for Initial Three WTG's
Energy delivered to the Wind Program from the locally installed Initial Three WTG's shall
separate charges and restrictions in some cases in accordance with the terms of this
Agreement. The Initial Three WTG's shall not be subject to restrictions on delivery during
low load conditions (paragraph 2.12.) Energy delivered by Initial Three WTG's shall not be
subject to Summer Emergency Condition payments or energy deliveries (paragraph 2.13.
�., Energy from the Initial Three WTG's shall be allowed to be carried by Wind Company month
! to month during all months, but not carried from one annual period to another. The Wind
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Lubbock Wind Program Agreement
September 22, 1998
Energy delivered from the Initial Three WTG's shall have a separate Utility Fee (paragraph
3.4.1.)
4.0 Payment of Invoices
The Wind Company shall promptly invoice the Utility monthly for electric energy from the
previous month. The Wind Company shall invoice the Utility by facsimile communication or
other written methods. Payment shall be due ten working days following receipt of the
invoice and
such payment shall be made by wire transfer to an account designated by the Wind Company.
If payment is not received by the due date, then a 1.5% late payment charge will be added.
An additional 1.5% late payment charge will be added to any prior invoices not paid by the
current invoice's transmittal date.
If any portion of the invoice is in dispute, the undisputed portion shall be paid by its due date.
After the dispute is resolved, if either party is found to owe all or a portion of the disputed
amount, it shall promptly pay the other party the amount found owing, plus applicable late
payment charges compounded monthly at a rate of 1.5%. All statements, invoices and
payments shall be subject to error correction for two years from date on said original
document.
5.0 Assignment
Either party may assign the Agreement with prior written consent of the other Party, which
consent shall not be unreasonably withheld, but no assignment shall relieve the assigning
Party of any liability arising out of or resulting from this Agreement. T111is Agreement will be
binding upon each Party's respective successors and assigns.
5.1 Partial Assignment of Agreement to Wind Company affiliate: Brownfield Wind, LLC
�.., The Utility recognizes that the terms of this Agreement which relate specifically to the
t development and operation of Wind Power Facilities, and exchange of Wind Energy to and
from these facilities, may be required to be exchanged to an affiliate of the Wind Company.
The Utility further recognizes that these individual Wind Power Facilities may be operated
through affiliates of the Wind Company. From time to time as Wind Power Facilities are
developed related to this Agreement, the Utility agrees to enter separate and independent
r^ contracts or memorandums of understandings (MOU's) in recognition of certain terms and
conditions assigned to affiliates of the Wind Company, but jointly and separately enjoyed by
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Lubbock Wind Program Agreement
September 22, 1998
the Wind Company and assignees.
Brownfield Wind, LLC is an affiliate of the Wind Company that is organized in part to
develop and operate the Initial Three WTG's. Further, the development and operation of the
Initial Three WTG's may include participation by the Electric Power Research Institute (EPRI)
of Palo Alto, California, the United States Department of Energy's (DOE) National Renewable
Energy Laboratory (NREL) of Golden, Colorado. At the execution of this Agreement, the
Utility agrees to authorize the attached Exhibit "A" Assignment Agreement by and between
the Wind Company and it's affiliate, Brownfield Wind, LLC.
5.2 Partial Assignment of Agreement to Marketing Services Affiliate of Wind Company
As may be required to comply with future federal and/or state regulatory requirements, the
Wind Company may assign this Agreement to an affiliate organized to provide marketing
services.
6.0 Term of Agreement
This Agreement shall extend for a period of twenty-five years from the date of execution of
the Agreement, and shall continue in force from year to year thereafter until and unless
canceled upon one year's written notice by either Party to the other Party. This Agreement
shall become effective as of the date of execution.
7.0 Compliance with Applicable Laws & Ordinances
The Wind Company shall at all times during the term of this Agreement be subject to the
lawful exercise of the police power by the City and to such reasonable regulations as the City
may hereafter establish by resolution or ordinance.
The Wind Company shall operate its system in accordance with the laws of the State of
Texas, of the United States, and the regulations of the Public Utility Commission of Texas
which may now or hereafter be applicable thereto, and the ordinances of the City. Nothing
herein shall be construed to grant the Wind Company any right or privilege lawfully within
the jurisdiction of any other regulatory body or agency, and the Wind Company shall secure
and hold all necessary licenses, permits and authorizations as may be required in order to
carry on its business.
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Lubbock Wind Program Agreement
September 22, 1998
8.0 Partial Invalidity and Repeal Provisions
If any section, subsection, sentence, clause, phrase or portion of this Agreement is for any
reason held invalid or unconstitutional in any court of competent jurisdiction, such portion
shall be deemed a separate, distinct, and independent provision and such holding shall not
affect the validity of the remaining portions hereof.
9.0 Dispute Resolution
Any disputed matter that cannot be resolved within thirty (30) days shall be referred by
written notice to the chief executive officer of the respective Utility and Wind Company.
Should the chief operating officers of each company not reach an agreement, the matter may
only then be submitted to a court of law, or administrative court if applicable, for resolution.
The arithmetic formulas and calculations provided in the Example Calculations attached as
Exhibit "B" are included to clarify and provide examples to the intent of this Agreement's
terms. Should it be determined after the execution of this Agreement that there is an error or
discrepancy in a calculation or formula is in this Agreement, then both Parties shall work
diligently to come to an agreement on a modified or revised calculation or formula that is
compatible with the terms and conditions of this Agreement. Such an error or discrepancy in
a calculation or formula, if applicable, shall not void or be used to contradict the terms and
conditions of this Agreement
10.0 Intentionally Blank
11.0 Termination on Default
Should a Party violate any material provision of this Agreement, the other Party may
terminate this Agreement or terminate for cause by giving written notice by certified mail,
return receipt requested, that this Agreement will terminate in 30 days unless the defaulting
Party remedies the violation in that time. Any other remedy or remedies available under the
law for such violation shall not be limited in any way because of this provision or the
exercise of the right conferred hereunder.
12.0 Force Majeure
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I A Party to this agreement shall not be in default because of a failure to perform (other than a
failure to pay when due), if the failure is caused by force majeure. Force majeure is
something beyond the control of a Party, and includes, but is not limited to, acts of God,
government acts (whether or not within the power of the government or government agency),
act of the public enemy, floods, epidemics, quarantine restrictions, strikes, labor slowdowns,
labor troubles, freight embargoes, and breakdowns of or damages to equipment (including
i emergency outages of equipment or facilities used for making repairs to avoid breakdown,
damage or imminent danger). A Party to this agreement claiming force majeure shall
7 promptly notify the other Party/Parties of the occurrence of the event of force majeure.
Nothing in this section shall require a Party to settle or resolve any labor dispute if it deems
the settlement to be contrary to its best interest.
13.0 Confidentiality
To the greatest extent possible under law and subject to the Texas Public Information Act,
r. Chapter 552, Texas Government Code, the Utility and the City will maintain as
confidential marketing plans, facility designs, plans and specifications that are submitted to the
Utility and/or the City for review.
14.0 Insurance
14.1 Insurance
Wind Company shall secure and maintain in force, during the existence of this agreement,
insurance, of the kinds stated below:
a) Worker's compensation as required by the laws of the State of Texas.
b) General liability insurance with a combined $1,000,000 single limit each occurrence
and a general aggregate limit of $2,000,000 covering all operations pursuant or in connection
with Agreement, including amendments or changes hereto.
c) Automobile liability insurance with a $1,000,000 combined single limit for bodily
injury and property damage.
d) Contractual liability insurance with a general aggregate limit of $1,000,000 covering
all liability for bodily injury and property damage assumed by the City or Utility under this
agreement.
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Each and all subcontractors shall be required to maintain insurance in force meeting all
the requirements above. All policies shall waive all rights of subrogation against the City and
Utility, their agents, employees, and underwriters with respect to all claims arising out of, or
in any way connected with, the work performed hereunder.
14.2 Independent Contractor
Nothing contained in this Agreement is intended to, or shall be construed in any manner, as
creating or establishing the relationship of employer/ employee between the parties. Wind
Company shall at all times remain an independent contractor with respect to the services to be
performed under this Agreement. Utility shall be exempt from payment of all Unemployment
Compensation, FICA, retirement, life and/ or medical insurance and Worker's Compensation
insurance as the Wind Company is an independent contractor.
14.3 INDEMNITY AND RELEASE
WIND COMPANY SHALL INDEMNIFY AND HOLD HARMLESS, TO THE FULLEST
EXTENT PERMITTED BY LAW, UTILITY, AND UTILITY'S RESPECTIVE OFFICERS,
EMPLOYEES, ELECTED OFFICIALS AND AGENTS, FROM AND AGAINST ANY AND
ALL LOSSES, DAMAGES, CLAIMS OR LIABILITIES, OR ANY KIND OR NATURE,
WHICH ARISE DIRECTLY OR INDIRECTLY, OR ARE RELATED TO, IN ANY WAY,
MANNER OR FORM, THE ACTIVITIES CONTEMPLATED HEREUNDER, INCLUDING,
BUT NOT LIMITED TO, LOSSES, DAMAGES, CLAIMS OR LIABILITIES ARISING
FROM OR RELATED TO, IN ANY WAY, MANNER OR FORM, THE ACT OR
OMISSION OF THIRD PARTIES AND/ OR CAUSED OR CONTRIBUTED TO, IN ANY
WAY, MANNER OR FORM, BY THE NEGLIGENCE OR FAULT OF UTILITY, ITS
RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/ OR AGENTS.
WIND COMPANY COVENANTS AND AGREES TO DEFEND ANY SUITS OR
ADMINISTRATIVE PROCEEDINGS BROUGHT AGAINST UTILITY AND/ OR
UTILITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/ OR
AGENTS ON ACCOUNT OF ANY SUCH CLAIM, AND TO PAY OR DISCHARGE THE
FULL AMOUNT OR OBLIGATION OF ANY SUCH CLAIM INCURRED BY,
ACCRUING TO, OR IMPOSED ON UTILITY, OR UTILITY'S RESPECTIVE OFFICERS,
EMPLOYEES, ELECTED OFFICIALS AND/ OR AGENTS, AS APPLICABLE,
RESULTING FROM ANY SUCH SUITS, CLAIMS, AND/OR ADMINISTRATIVE
PROCEEDINGS OR ANY MATTERS RESULTING FROM THE SETTLEMENT OR
RESOLUTION OF SAID SUITS, CLAIMS, AND/OR ADMINISTRATIVE PROCEEDINGS.
IN ADDITION, WIND COMPANY SHALL PAY TO UTILITY, UTILITY'S RESPECTIVE
OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/ OR AGENTS, AS APPLICABLE,
ALL ATTORNEY'S FEES INCURRED BY SUCH PARTIES IN ENFORCING WIND
COMPANY'S INDEMNITY IN THIS SECTION.
UTILITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS
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AND AGENTS, SHALL NOT BE LIABLE, AND WIND COMPANY HEREBY RELEASES
UTILITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS
AND AGENTS, FOR, FROM AND/OR AGAINST ANY LOSSES, DAMAGES, CLAIMS
OR LIABILITY TO WIND COMPANY, ON ANY THEORY OF LEGAL LIABILITY,
INCLUDING, BUT NOT LIMITED TO THE NEGLIGENCE, OR ANY TYPE OF
DEGREE, OR FAULT, OF UTILITY, ARISING FROM OR RELATED TO, IN ANY WAY,
MANNER OR FORM, THE UNENFORCEABILTTY OR VOIDANCE, FOR ANY
REASON, OR ALL OR ANY PART OF THIS AGREEMENT.
THE INDEMNITY AND RELEASE PROVIDED HEREIN SHALL SURVIVE THE
TERMINATION OR VOIDANCE OF THIS AGREEMENT.
15.0 Notices
Any notice to be given by either Party to the other shall be in writing and shall be sufficient
if (a) personally delivered, (b) sent by certified mail, return receipt requested, postage prepaid,
to the Party's address set forth below, or (c) communicated electronically to the respective
addresses set forth below:
Wind Company: Texas Wind Power Company
�^ 115 Industrial Blvd.
Austin, Texas 78745
attn: Walter Hornaday
Utility: Lubbock Power and Light
Managing Director
P.O. Box 2000
Lubbock, Texas 79457
Notice shall be deemed on date received. A Party may change its address for delivery of
notice by notifying the other Party of the change, but said change not effective until actually
received.
16.0 Successors and Assigns
This agreement shall be binding on and inure to the benefit of the Parties and their respective
transferees, successors and assigns.
r 18939r9.doc Page 31 of 33
Lubbock Wind Program Agreement
September 22, 1998
17.0 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State
of Texas. Venue for resolution of any dispute shall be in Lubbock County, Texas.
18939r9.doc
Page 32 of 33
Lubbock Wind Program Agreement
September 22, 1998
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by the
respective officers and representatives heretofore duly and fully authorized, this 221nd day of
September, 1998.
City of Lubbock, Texas
Actin b a4through its City Council.
By:Win
Title: Mayor
Attest:
Kay Darnell
Title: City Mcretary
Approved as to content:
By: 411%4wl
P
Paul Thomps n
Title: Managing Director of Lubbock Power and Light
Approved"
pproved to form:
By:
y L. S' tklolol
Title: Assi st City /ttorney
Texas Wind Power Company
By: W&AA
Walter Homaday,CKJ
President
Attes t: �.
r
f /Il J
Print Name: /7 �f/40Gf
1893%9.doc Page 33 of 33
Lubbock Wind Program Agreement
September 22, 1998
Exhibit "A"
Assignment Agreement
Texas Wind Power Company ("Wind Company") assigns to Brownfield Wind, LLC
("Brownfield Wind") part of its rights, privileges and obligations in the Lubbock Wind Energy
Program Agreement ("Agreement") executed with the City of Lubbock, Texas ("Lubbock")
related to the installation, operation and maintenance of the initial three wind turbine
generators interconnected to the Lubbock utility system. These terms and conditions assigned
by the Wind Company are required both to ensure that the initial three wind turbine
generators are operated safely and in compliance with Agreement terms and to provide for the
exchange of wind energy into and out of Lubbock's system, including exchanges with the City
of Brownfield, Texas through the West Texas Municipal Power Agency.
1. Partial Assignment, Wind Company assigns to Brownfield Wind its rights, privileges and
obligations with respect to the following sections of the Lubbock Wind Program Agreement
as they apply to the installation, operation and maintenance of an initial three wind turbine
generators:
2.1 Operations and Maintenance
2.2 Operating Committee
2.3 Safety Requirements
2.4 Quality of Product
2.5 Design and Specifications
2.6 Metering and Interconnection
2.7 Right of Installation and Removal
2.8 Use of Facilities
2.9 Delivery
2.10 Service Conditions
i 2.15 Wholesale Exchanges of Wind Energy
6. Term of Agreement
7. Compliance with Applicable Laws and Ordinances
8. Partial Invalidity and Repeal Provisions
` 9. Dispute Resolution
,., 11. Termination on Default
12. Force Majeure
14. Insurance
15. Notices
j 16. Successors and Assigns
I
t
7
17. Governing Law
Lubbock Wind Program Agreement
September 22, 1998
These provisions are intended to provide Brownfield Wind with the right to install, operate
and maintain the initial three wind turbine generators independent of the performance or status
of the Wind Company's other performance or obligations under the terms and conditions of
r the Agreement. Wind Company reserves all rights and privileges of the above referenced
sections of the Agreement except as related to the installation, operation and maintenance of
the initial three wind turbine generators.
2. Consideration of Assignment, As consideration for this Assignment, Texas Wind Power
shall have its cost to negotiate and execute this Agreement accounted as a contribution to
Brownfield Wind in accordance with the articles of organization of Brownfield Wind.
Additionally, Brownfield Wind agrees to indemnify, defend and hold harmless Wind
Company from any litigation, obligations, debts or other liabilities that may be incurred by
Brownfield Wind related to the installation, operation or maintenance of the initial three wind
turbine generators under this Assignment.
3. Term. This Assignment Agreement ("Assignment") is executed and effective on
September 22. 1998,
4. Successors and Assigns. Brownfield Wind may not assign or transfer its interest in
the Agreement without consent of Wind Company. This agreement shall be binding on and
inure to the benefit of the Parties and their respective transferees, successors and assigns.
5. Dispute Resolution. Any disputed matter that cannot be resolved within thirty (30)
days shall be referred by written notice to the chief executive officer of the respective Utility
and Wind Company. Should the chief operating officers of each company not reach an
agreement, the matter may only then be submitted to a court of law, or administrative court if
applicable, for resolution.
6. Partial Invalidity and Repeal Provisions. If any section, subsection, sentence, clause,
phrase or portion of this Agreement is for any reason held invalid or unconstitutional in any
court of competent jurisdiction, such portion shall be deemed a separate, distinct, and
independent provision and such holding shall not affect the validity of the remaining portions
hereof.
7. Further Assurances. Parties agree to amend or modify this Agreement or enter
r^ other agreements as may be required, if at all, to clarify the agreement between the parties.
8. Governing Law, This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas.
Lubbock Wind Program Agreement
September 22, 1998
9. Confidentiality, Brownfield Wind will keep all information as to the terms and
conditions of the Lubbock Wind Program Agreement confidential.
Texas Wind Power Company
-
"2-
i en Walter Hornaday, Prest Date