HomeMy Public PortalAbout055-2021 - 3rd party agreement for power sales - IMPA and COR ORDINANCE 55-2021
AN ORDINANCE
OF THE CITY OF RICHMOND;INDIANA AUTHORIZING THE EXECUTION
AND DELIVERY OF THE THIRD AMENDATORY AGREEMENT TO THE
POWER SALES CONTRACT BETWEEN INDIANA MUNICIPAL POWER
AGENCY AND THE CITY OF RICHMOND,INDIANA,AND OTHER
MATTERS CONNECTED THEREWITH
WHEREAS,the City of Richmond, Indiana(the "Member") is a municipality owning and
operating on January 1, 1980, an electric utility which furnished electric service to the
public and purchased electric power from public utilities; and
WHEREAS, the Member is required by law to provide its customers with an adequate,
reliable and economic supply of electric power and energy, but has determined that
individually it is not financially capable of providing the planning, financing, locating and
building of needed new facilities for generation and transmission to satisfy future
requirements of its customers; and
•
WHEREAS, based upon its obligations to serve its customers, and the above
considerations, the Member determined that it was in its best interest to join with other
municipalities in the State of Indiana as a member of the Indiana Municipal Power Agency
(the "Agency") for the purpose of undertaking the planning, financing, ownership and
operation of a project or projects to supply electric power and energy for its needs; and
WHEREAS,the Agency and the Member entered into,and have carried out their respective
obligations under, the Contract Creating the Agency and Power Sales Contract, as
heretofore amended and supplemented (collectively, the "Original Contracts"), each
between the Member and the Agency, attached hereto and made a part hereof; and
WHEREAS, under the Power Sales Contract the Agency agreed to sell and deliver to the
Member, and the Member agreed to purchase and receive from the Agency, all electric
power and energy which the Member required for the operation of its municipal electric
system for a term expiring April 1, 2042; and
WHEREAS,the Agency plans for its power supply on a thirty-year timeline and the power
supply resources considered can take five to ten years or more for development and
construction, with useful lives of decades longer; and
WHEREAS, changing public opinions and government regulations relating to climate
change and carbon dioxide emissions require that the Agency be able to adjust its power
supply portfolio as the need arises; and
WHEREAS,major new power supply resources would require the issuance of debt with a
long-term(at least thirty years) amortization of debt service and associated costs to provide
-1-
the most economic and reliable power supply to Member and other members of the
Agency; and
WHEREAS,it is in the best interests of the Agency and the Member to amend the Contract,
as well as the Power Sales Contracts the Agency has entered into with other members of
the Agency, to extend the existing term through April 1, 2050 with a thirty-year notice of
termination that would allow the Agency the discretion to issue new debt with a long-term
amortization if necessary; and
WHEREAS,the Original Contracts and the Amendment,marked as Exhibit A,are attached
hereto, incorporated herein by reference and two (2) copies of each are on file in the office
of the Clerk for public inspection pursuant to IC 36-1-5-4; and
WHEREAS, Member desires to amend the Power Sales Contract to extend the term in the
manner described above; and
WHEREAS, representatives of the Member have reviewed the Original Contracts and the
Amendment and have obtained independent advice and counsel with respect thereto where
appropriate and the Member has had the opportunity to review the Original Contracts and
the Amendment with the Agency; and
WHEREAS, based upon the foregoing facts, the Member by this Ordinance hereby finds
and determines to ratify the Original Contracts and approve the Amendment.
NOW THEREFORE BE IT ORDAINED by the Richmond, Indiana Common Council, as
follows:
Section 1. The findings and determinations set forth in the preambles to this Ordinance are
hereby made findings and determinations of the Member.
Section 2. By this Ordinance, the entry of the Member into the Original Contracts and its
performance of the terms and conditions thereof are hereby ratified and confirmed. The
Member is authorized pursuant to this Ordinance (a)to enter into the Amendment in
substantially the form attached hereto as Exhibit A, and (b)to be bound by the terms and
conditions of the Original Contracts as supplemented and amended by the Amendment, as
further supplemented from time to time,the By-Laws of the Agency and such other lawful
actions as may be heretofore have been taken by the Board of Commissioners of the
Agency.
Section 3. By this Ordinance,the Mayor of the City of Richmond is hereby authorized and
directed to execute and deliver, and the Clerk is hereby authorized to attest and seal, the
Amendment.
Section 4. All ordinances and parts of ordinances in conflict herewith are hereby repealed.
Section 5. This Ordinance shall be in full force and effect from and after its passage.
-2-
Passed and adopted this day of the Common Council of
the City of Richmond, Indiana.
resident
( y arke
ATTEST rlv
(Karen Chasteen, IAMC, MMC)
P SENTED to the Mayor of the City of Richmond, Indiana, this 7 day of
, at00 a.m.
/0
(Karen Chasteen, IAMC, MMC)
APPROVED by me,David M. Snow,Ma or of the City of Richmond,Indiana,this 07 7'
day of ` (ewr3C2 , 2021, at (2. (o'(>vvi
, yor
Pay• . Snow
ATTEST: •
(Karen Chasteen, IAMC, MMC)
-3-
4. 4" , t, .1. .� • 0.4 i
{ Indiana Municipal Power Agency
Power Sales Contract
This Contract, entered into as of the first day of April,
1982, between INDIANA MUNICIPAL POWER AGENCY, a body corporate and
politic and political subdivision of the State of Indiana, organized
and existing under the laws of the State of Indiana (the "Agency") ,
and the CITY OF RICHMOND (the "Member") .
WITNESSET H:
WHEREAS, the Agency was organized under I.C. 8-1-2.2 (the
"Act") to provide a method for those Indiana cities and towns which
own facilities for the distribution of electric power and energy to
jointly plan, finance, develop, own and operate electric generation
and transmission facilities located within the State of Indiana that
are appropriate to the present and projected electric energy needs of
such cities and towns; and
WHEREAS, the Agency is empowered by the Act. (i) to study,
plan, finance, construct, reconstruct, acquire, improve, enlarge,
better, own, operate and maintain individually or jointly with one or
more municipalities, joint agencies or public utilities one or more
plants, works, systems or facilities located in the State of Indiana
necessary or convenient in the generation, transmission, transforma-
tion, purchase, sale, exchange or interchange of electric power and
energy by any means whatsoever or to acquire any interest therein or
any rights to the use, output or capacity thereof, and (ii) to gener-
ate, produce, transmit, deliver, exchange, purchase or sell for
resale only, electric power or energy, and (iii) to make and execute
contracts and other instruments necessary or convenient in •the exer-
cise of the powers and functions of the Agency under the Act, and
( iv) to do all acts and things necessary, convenient or desirable to
carry out the purposes of, and to exercise the powers granted to, the
Agency under the Act; and
WHEREAS, the Member owns and operates a municipal electric
utility (and owned and operated the same on January 1, 1980) which
furnishes retail electric service to the public and is authorized
under the Act and the laws of the State of Indiana to contract to
purchase from the Agency power and energy and related services; and
WHEREAS, in order to secure an adequate, reliable and eco-
nomical supply of electric power and energy for the Member's munici-
pal electric utility, the Agency and the Member have determined that
the Agency will sell to the Member, and the Member will purchase from
the Agency, power and energy on the terms and conditions set forth
herein; and
WHEREAS, the Agency intends to acquire power and energy for
sale and delivery to the Member and to other members contracting with
the Agency therefor through whatever means it deems advisable,
•
including, without limitation, the purchase thereof from other public
utilities and the ownership of generation and transmission facilities
• or any interest therein or output therefrom; and
WHEREAS, in order to enable the Agency to issue its revenue
bonds to pay the cost of acquiring and constructing such generation,
transmission or other facilities as are useful ' in meeting its obliga-
tions hereunder, it is necessary for the Agency to have binding con-
tracts with the Member and each of the other Participating Members
(as defined herein) and to pledge the payments required to be made
under such contracts as security for the payment of such bonds;
NOW, THEREFORE, for and in consideration of the mutual cov-
enants and agreements herein contained, it is agreed by and between
the parties hereto as follows :
SECTION 1. Definitions
Bond Resolution shall mean any one or more resolutions,
trust agreements, loan agreements or other similar instruments pro-
viding for the issuance of Bonds.
Bonds shall' mean electric utility revenue bonds, notes or
other evidences of indebtedness, without regard to the term thereof,
whether or not any issue of such Bonds shall be subordinated as to
payment to any other issue of Bonds, from time to time issued by the
Agency to finance any cost, expense or liability paid or incurred or
to be .paid or incurred by the Agency in connection with the investi-
gating, studying, planning, engineering, designing, financing,
installing, constructing, acquiring, operating, maintaining, retir-
ing, decommissioning or disposing of any part of the System or other-
wise paid or incurred or to be paid or incurred by the Agency in con-
nection with the performance of its obligations under the Power Sales
Contracts or for any other lawful purpose permitted under the Act for
the System.
Contract Rate of Delivery shall have the meaning given to
such term in Section 3 hereof.
Participating Members shall mean the Member and:those mem-
bers of the Agency that are, or hereafter. become, parties to Power
Sales Contracts.
Point of Delivery shall mean any point at which the Agency
shall be required to deliver power and energy to the Member as set
forth in paragraph 2 of Schedule A hereto, as amended from time to ,
time.
Point of Measurement shall mean any point at which the
Agency shall be required to meter power and energy delivered to the
Member as set forth in paragraph 3 of Schedule A hereto, as. amended
-2-
from time to time. It is understood that paragraph 3 of Schedule A
shall include as a Point of Measurement the point of interconnection
between any generating facility owned by the Member and the Member's
distribution system.
Power Sales Contracts shall mean this Contract and other
contracts providing for the sale of power and energy by the Agency to
other members, as amended from time to time, provided that it shall
not include any such contract which expressly provides that it is not
to be considered a Power Sales Contract.
Power Supply Resources shall have the meaning given to such
term in Section 3 hereof.
Prudent Utility Practice shall mean, at a particular time,
any of the practices, methods and acts which, in the exercise of rea-
sonable judgment in the light of the facts (including but not limited
to the practices, methods and acts engaged in or approved by a sig-
nificant portion of the electrical utility industry prior thereto)
known at the time the decision was made, would have been expected to
accomplish the desired result at a reasonable cost consistent with
reliability and safety. Prudent Utility Practice is not intended to
be limited to the optimum practice, method or act, to the exclusion
of all others, but rather to be a number of possible practices,
methods or acts.
Rate Schedule shall mean the rate schedule setting forth
the rate for payments by the Member for electric power and energy
delivered hereunder attached hereto as Schedule B, which Schedule B
may be revised from time to time by a new schedule adopted by the
Agency including, without limitation, any amendment, change, deletion
or addition to any of the billing components, terms or conditions, or
any adjustment set forth therein, including, but not limited to,
amending billing demand to provide for minimum demand whether or not
based on prior demand measurements.
Revenue Requirements shall mean all costs and expenses paid
or incurred or to be paid or incurred by the Agency resulting from
the ownership, operation, maintenance, termination, retirement from
service and decommissioning of, and repair, renewals, replacements,
additions, improvements, betterments and modifications to, the System
or otherwise relating to the acquisition and sale of power and energy
and transmission services and performance by the Agency of its obli-
gations under the Power Sales Contracts, including, without limita-
tion, the following items of cost:
(1) payments of principal of and premium, if any, and
interest on all Bonds issued by the Agency and payments
which the Agency is required to make into any debt service
reserve fund or account under the terms of any Bond
Resolution or other contract with holders of Bonds;
-3-
( 2) amounts required under any Bond Resolution to be
paid or deposited into any fund or account established by
such Bond Resolution (other than funds and accounts
referred to in clause (1) above) , including any amounts
required to be paid or deposited by reason of the • transfer
of moneys from such funds or accounts to the funds or
accounts referred to in clause (1) above;
(3) amounts which the Agency may be required to pay
for the prevention or correction of any loss or damage or
for renewals, replacements, repairs, additions, improve-
ments, betterments, and modifications which are necessary
to keep any facility of the System in good operating condi-
tion or to prevent a loss of revenues therefrom;
( 4) costs of operating and maintaining the System and
of producing and delivering power and energy therefrom
(including fuel costs, administrative and general expenses
and working capital, for fuel or otherwise, and taxes or
payments in lieu thereof) not included in the costs speci-
fied in the other items of this definition and costs of
power supply planning and implementation associated with
meeting the Agency' s power supply obligations;
( 5) the cost of any electric power and energy pur-
chased for resale by the Agency under the Power Sales
Contracts and the cost of transmission service for delivery
of electric power and energy under the Power Sales
Contracts;
(6) all costs incurred or associated with the sal-
vage, discontinuance, decommissioning and disposition or
sale of properties;
(7) all costs and expenses relating to injury and
damage claims required to be paid by the Agency;
(8) any reserves the Agency shall determine to be
necessary for the payment of those items of costs and
expenses referred to in clauses (1) through (7) above to
the extent not already included in such clauses; and
(9) additional amounts which must be realized by the
Agency in order to meet the requirement of any rate cove-
nant with respect to coverage of principal of and interest
on Bonds contained in any Bond Resolution or contract with
holders of Bonds or which the Agency deems advisable in the
marketing of its Bonds.
System shall mean all properties, rights and interests in
properties of the Agency, including all electric production,
-4-
transmission, delivery facilities, general plant and other related
facilities and any mine, well, pipeline, plant, structure or other
facility for the development, production, manufacture, storage, fab-
rication or processing of fossil, nuclear or fuel of any kind or any
facility or rights with respect to the supply of water, in each case
for use, in whole or in major part, in any of the Agency' s generating
plants, now existing and hereafter acquired by lease, contract, pur-
chase or otherwise or constructed by the Agency, including any inter-
est or participation of the Agency in any such facilities, together
with all additions, betterments, extensions and improvements to said
system or any part thereof hereafter made and together with all
lands, easements and rights of way of the Agency and all other works,
property or structures of the Agency and rights to the use of any
thereof or the output, products or services therefrom or other con-
tract rights, including, without limitation, rights for the purchase
of power and energy, transmission or other services from others, and
other tangible and intangible assets of the Agency used or useful in
connection with or related to said system.
Notwithstanding the foregoing definition of the term
System, such term shall not include any properties or interests in
properties of the Agency which the Agency determines shall not con-
stitute a part of the System for the purposes of this Contract.
SECTION 2. Term
This Contract shall become effective upon the issuance of
an order by the Public Service Commission of Indiana acceptable to
the Agency approving the Agency' s acquisition of and financing for an
approximate twenty-five percent (25%) undivided ownership interest in
the 650 MW coal-fired generating unit (commonly referred to as the
Gibson Unit No. 5) being constructed by Public Service Company of
Indiana, Inc. This Contract shall remain in effect until April 1,
2032; provided, however, this Contract may be terminated by the
Member at such time that all Bonds shall have been paid or provision
for such payment shall have been made therefor pursuant to the Bond
Resolution and all contractual obligations entered into by the Agency
for the generation, purchase, transmission or transformation of power
and energy have been terminated and provision has been made for the
payment of any residual costs thereof.
SECTION 3. Sale and Purchase of Electricity
(a) The Agency hereby agrees to sell and deliver to
the Member, and the Member hereby agrees to purchase and
receive from the Agency, commencing January 1, 1983 or such
earlier date as shall be determined by the Agency upon
thirty days notice to the Member and extending through the
term hereof, all electric power and energy which the Member
shall require for the operation of its municipal electric
system; provided, however, that after December 31 , 2002,
-5-
the maximum amount of power required to be sold and
delivered by the Agency and purchased and received by the
Member hereunder shall not exceed the Contract Rate of
Delivery determined as follows: the "Contract Rate of
Delivery" shall be the peak demand of the Member for power
and energy under this Contract during the 60 billing peri-
ods preceding December 31 , 2002 , as -determined by the
Agency, adjusted up or down by not more than 10% so as to
provide optimal utilization of the Agency' s Power Supply
Resources, such adjustment to be made by the Agency upon
the advice of the consulting engineer to the Agency.
"Power Supply Resources" shall mean those resources for the
production of electric power and energy included in the
System to the extent the same are employed by the Agency to
supply the electric power and energy sold under the Power
Sales Contracts. On or before January 1 , 1999, and on or
before January 1 of each year thereafter, the Agency shall
advise the Member of the Agency' s then best estimate of
what the Member' s Contract Rate of Delivery hereunder will
be for the period after December 31 , 2002 . On or before
December 31 , 2002, the Agency shall notify the Member of
the Member ' s actual Contract Rate of Delivery for the
period after December 31 , 2002.
In the event that, pursuant to the Public Utility
Regulatory . Policies Act of 1978 or other provisions of law,
electric power is required to be purchased from a small
power production facility, a cogeneration facility or other
facility, the Member and the Agency shall use their best
efforts to arrange for such purchases to be made by the
Agency . If such arrangements cannot be made, then the
Member shall make the required purchases and sell the power
purchased to the Agency at a price equal to the price paid
by the Member. The Member appoints the Agency to act as
its agent in all dealings with the owner of any such facil-
ity from which power is to be purchased and in connection
with all other matters relating to such purchases.
(b) The Member hereby commits itself to take and pay
for all of the electric power and energy which it is
required to take and receive under paragraph (a) of this
Section 3 and which is made available to the Member hereun-
der at its Points of Measurement, such payments to be made
at rates set forth in the Rate Schedule, as revised from
time to time by the Agency.
(c) The Agency is hereby authorized by the Member
(i) to undertake projects from time to time which, in the
sole discretion and exclusive judgment of the Agency, are
necessary or desirable to enable the Agency to fulfill
satisfactorily its obligations to use its best efforts to
-6-
supply power and energy to the Member pursuant to this
Contract and (ii) to issue Bonds for the purpose of paying
all or any part of the costs of any of the projects or pur-
poses authorized by the Act.
SECTION 4. Electric Characteristics, Points of Delivery
and Measurement
Electricity to be furnished hereunder shall be three phase,
sixty hertz alternating current. The Member shall make and pay for
all connections between the system of the Member and the system of
the Agency at the Points of Delivery. The Points of Delivery, the
Points of Measurement and the delivery voltage shall be as set forth
in Schedule A attached hereto, which Schedule may be amended from
time to time to include such other Point or Points of Delivery and
Point or Points of Measurement and delivery voltage as may be agreed
upon by the Agency and the Member. Other provisions of Schedule A
may be amended from time to time by the Agency in accordance with
Prudent Utility Practice.
The Member shall install, own and maintain any necessary
substation equipment at the Points of Delivery and shall install, own
and maintain switching and protective equipment of adequate design
and sufficient capacity on the Member ' s side of such Points of
Delivery to enable the Member to take and use the power and energy
supplied under this Contract without hazard to the System.
The Agency shall not be responsible for the transmission,
control, use or application of power and energy provided under this
Contract on the Member ' s side of the Point of Delivery.
The Member shall not be responsible for the transmission,
control, use or application of power and energy provided under this
Contract on the Agency' s side of the Point of Delivery.
When electricity is measured at more than one Point of
Measurement, the maximum total coincident demand of the Member ' s
system shall be determined by combining the recorded demand at each
Point of Measurement during the same 60 minute interval.
SECTION 5. Rates
(a) The Member shall pay the Agency for all electric
power and energy furnished at the Points of Measurement
hereunder at the rates and on the terms and conditions set
forth in the Rate Schedule. The Agency may revise and
place into effect new Rate Schedules from time to time.
The Member agrees to pay the rates and charges set forth in
the revised Rate Schedules from the effective date
established by the Agency. In the event that, during any
portion of any billing period, electric power is made
-7-
available to the Member by the Agency in accordance with
this Contract which the Member is required to take and
receive pursuant to Section 3 hereof but which the Member
fails to take and receive, the Member shall pay the Agency
for such availability in an amount equal to the product of
the demand charge in the Rate Schedule and the billing
demand computed as provided in the Rate Schedule except
that, for such purpose, the kilowatts of demand for such
billing period shall be based upon the kilowatts that would
have otherwise been taken as evidenced by the total elec-
tric power consumed by the Member' s customers during the
billing period. Payments made by the Member under the Rate
Schedule shall be treated as an operating expense from the
revenues of the Member ' s electric utility system, or other
integrated utility system of the Member of which the
Member ' s electric utility system may be a part, to the
extent permitted by law, and from other funds of such
system legally available therefor and shall be in addition
to and not in substitution for any other payments whether
on account of dues or otherwise owed by the Member to the
Agency. The obligation of the Member to make payments
under the Rate Schedule shall not constitute a general
obligation of the Member and the Member shall not be
required to make such payments from any source other than
the revenues and funds referred to in the next preceding
sentence. The obligation of the Member to make payments
under the Rate Schedule shall not be subject to any reduc-
tion, whether by offset, counterclaim, recoupment or other-
wise, and shall not be otherwise conditioned upon the per-
formance by the Agency under this or any other agreement or
instrument ; provided, however, that nothing contained
herein shall be construed to prevent or restrict the Member
from asserting any rights which it may have against the
Agency under this Contract or under any provision of law,
including the institution of legal proceedings for specific
performance or recovery of damages.
The Member' s electric utility system shall be deemed
to be a part of an integrated utility system for purposes
of Sections 5 (a) and 7 (a) hereof if the revenues of the
electric utility system (i) are commingled with the reve-
nues of one or more other utility systems owned by the
Member, or (ii) are utilized to pay operating expenses of
the Member ' s electric utility system and one or more other
utility systems owned by the Member, or (iii) are pledged
to secure bonds issued to finance one or more other utility
systems owned by the Member . For purposes of this para-
graph, the term "commingled" shall not be deemed to include
the keeping of funds in one bank account so long as such
funds are separately accounted for on the books and records
of the Member.
-8-
(b) The Agency shall establish and maintain rates in
the Rate Schedule hereunder and under the other Power Sales
Contracts which will provide revenues which are sufficient,
but only sufficient, together with other available funds of
the Agency, to meet the estimated Revenue Requirements of
the Agency. In determining the rates necessary to produce
sufficient revenues, the Agency shall take into account any
anticipated delinquency or default in payments by Members
under the Power Sales Contracts. The ratemaking methods
used by the Agency to establish rates shall be consistent
with Prudent Utility Practice.
At such intervals as it shall determine appropriate,
but in any event not less frequently than once each calen-
dar year, the Board of Commissioners of the Agency shall
review and, if necessary, revise the Rate Schedule to
insure that the rates thereunder continue to cover its
estimate of the Revenue Requirements.
(c) In connection with any revision of the Rate
Schedule, the Agency shall cause a notice in writing to be
given to all Members which shall set out any proposed revi-
sion of the Rate Schedule with the effective date thereof,
which shall be not less than sixty days after the date of
the mailing of the notice, and which shall be accompanied
by an analysis of the estimated Revenue Requirements for
which the Rate Schedule is proposed to be revised and the
derivation of the proposed rate. The Member agrees to pay
for electric power and energy made available by the Agency
to it hereunder after the effective date of any revision in
the Rate Schedule in accordance with the Rate Schedule as
so revised. Revisions of the Energy Cost Adjustment and
the Control Area Cost Differential Factors set forth in
Schedule B hereto or any substitutes or replacements
thereof shall not require submission of the analysis of
estimated Revenue Requirements and the derivation of the
proposed adjustment to the Members.
SECTION 6. Covenants of the Agency
(a) After satisfying, to the extent provided for
herein, the total requirements of all Participating
Members, the Agency shall use its best efforts to market
and dispose of, under the most economically advantageous
terms and conditions obtainable, all its surplus electric
power and energy which in the sole judgment of the Agency
can be disposed of without adversely affecting performance
by the Agency under this Contract so long as it shall not
result in the breach of any Agency covenant or contract.
-9-
•
(b) The Agency shall use its best efforts while
following Prudent Utility Practice to provide a constant
and uninterrupted supply of electric power and energy under
this Contract. In the event that the Agency is not able to
supply all of the electric power and energy requirements of
all of the Participating Members that it is required to
supply hereunder, it shall use its best efforts to allocate
its electric power and energy available from its Power
Supply Resources during any billing period among the Member
and the other Participating Members as follows: prior to
January 1 , 2003 such allocation shall be made pro rata in
accordance with their respective electric power and energy
requirements supplied hereunder during the corresponding
billing period of the preceding calendar year and thereaf-
ter such allocation shall be made pro rata in accordance
with the Contract Rate of Delivery of each Participating
Member. During any period the Agency is unable to supply
all of the Member ' s electric power and energy requirements
that it is required to supply hereunder, the Agency shall
not in any case be liable to the Member for damages result-
ing from such interruption of service and the Member shall
be permitted to acquire from other sources such amount of
electric power and energy which is not supplied by the
Agency; provided, however, that at such time as the Agency
is thereafter again able to supply all of the Member ' s
electric power and energy requirements that it is required
to supply hereunder, the Member shall be required to take
and pay for such electric power and energy in accordance
with the provisions hereof.
(c) The Agency shall use its best efforts to acquire,
by purchase or otherwise, and to deliver or cause to be
delivered to the Points of Delivery, power and energy in
the manner determined by the Agency to be most economical,
dependable and otherwise feasible.
(d) In addition to the delivery of power and energy
pursuant to this Contract and the performance of all acts
and actions incident thereto, the Agency agrees that it
will perform or cause to be performed services, including,
but not limited to: (i) coordinating and monitoring the
investigating, studying, planning, engineering, designing,
financing, installing, constructing, acquiring, operating,
maintaining, retiring, decommissioning or disposing of any
part of the System; ( ii) issuing and selling Bonds ;
(iii) planning, undertaking, coordinating and monitoring
the economic dispatching and scheduling of power and energy
to the Members, but only to the extent that the Agency pos-
sesses at the time its own load control capability; and
(iv) providing such other services as the Agency from time
to time shall determine to be appropriate or necessary to
-10-
provide an adequate, reliable and economical supply of
power and energy to the Members.
SECTION 7. Covenants of the Member
(a) The Member agrees to maintain rates for electric
power and energy to its consumers subject to the approval
of the Public Service Commission of Indiana under and pur-
suant to the provisions of I.C. 8-1-2 and 8-1-2.2, to the
extent the Member is subject thereto, which shall provide
to the Member revenues sufficient to meet its obligations
to the Agency under this Contract; to pay all other operat-
ing expenses; to pay all obligations, whether now outstand-
ing or incurred in the future, payable from, or constitut-
ing a charge or lien on, the net revenues of its electric
system; and to make any other payments required by Indiana
law; and, at the option of the Member, to provide any addi-
tional revenues permitted under Indiana law. The Member
agrees to use its best efforts to take all actions neces-
sary or convenient to fulfill its obligations under this
Section 7 (a) , including, but not limited to, making timely
applications for rate increases and processing such appli-
cations with diligence.
The Member further covenants and agrees that if it
maintains or establishes an integrated utility system of
which its electric system is a part for its electric,
water, gas, cable television, telephone and sanitary sewer
systems (or any combination of two or more thereof which
includes its electric system) , it will establish, maintain
and collect rates and charges for the services provided by
its integrated utility system which shall produce revenues
at least sufficient to enable the Member to pay all
expenses attributable to the integrated utility system,
including the expenses incurred in the operation and main-
tenance of the integrated utility system (including the
obligations under this Contract) , to pay the debt service
requirements on any bonds, notes or other evidences of
indebtedness, whether now outstanding or incurred in the
future, secured by such revenues and issued to finance
improvements to the integrated utility system and to make
any other payments required by Indiana law.
The Member shall not be required to make payments
under this Contract except from the revenues of the
Member ' s electric utility system, or other integrated util-
ity system of the Member of which the electric utility
system is a part, and from other funds of such system
legally available therefor. In no event shall the Member
be required to make payments under this Contract from tax
revenues.
-11-
(b) The Member shall not sell at wholesale any of the
electric power and energy delivered to it hereunder to any
customer of the Member or any other entity for resale by
that customer or entity, unless it has first given the
Agency 60 days written notice of its intent to sell such
power and energy. The Agency , after receipt of such
notice, shall have 30 days in which to impose limits on the
amount of power and energy to be sold or to veto such sale
if the sale will jeopardize the Agency' s availability of
resources to serve its Members or increase the cost of
power and energy to the Agency.
(c) The Member shall not sell, lease or otherwise
dispose of all or substantially all of its electric system
except on 90 days' prior written notice to the Agency and,
in any event, shall not so sell, lease or otherwise dispose
of the same unless the following conditions are met:
( i) the Member shall assign this Contract and its rights
and interest hereunder to the purchaser or lessee of the
electric system and such purchaser or lessee shall assume
all obligations of the Member under this Contract; (ii) if
and to the extent necessary to reflect such assignment and
assumption, the Agency and such purchaser or lessee shall
enter into an agreement supplemental to this Contract to
clarify the terms on which power and energy are to be sold
hereunder by the Agency to such purchaser or lessee;
(iii) the senior debt of such purchaser or lessee shall be
rated in one of the four highest whole rating categories by
at least one nationally-recognized bond rating agency;
( iv) the Agency shall have received an opinion of counsel
of recognized standing in the field of law relating to
municipal bonds selected by the Agency stating that such
sale, lease or other .disposition will not adversely affect
the value of this Contract as security for the payment of
Bonds and the interest thereon or jeopardize the tax-exempt
status of the interest on any Bond or Bonds issued by the
Agency as that status is governed by Section 103(a) of the
Internal Revenue Code of 1954, as amended, and the Treasury
Regulations or any ruling as promulgated thereunder or as
affected by a decision of any court of competent jurisdic-
tion; (v) an opinion shall be obtained from counsel of
assignee and the Agency that the assignment is lawfully
permitted under I.C. 8-1-2.2; and (vi) the rates to be paid
by the assignee, if a public utility, have been approved by
the Public Service Commission of Indiana.
(d) The Member covenants and agrees that it shall
take no action the effect of which would be to prevent,
hinder or delay the Agency from the timely fulfillment of
its obligations under this Contract, any outstanding Bonds
or any Bond Resolution of the Agency.
-12-
(e) The Member covenants and agrees that it shall not
use or permit to be used any of the power and energy
acquired under this Contract in any manner or for any pur-
pose or take any other action or omit to take any action
which would result in the loss of the tax-exempt status of
the interest on any Bond or Bonds issued by the Agency as
that status is governed by Section 103 (a) of the Internal
Revenue Code of 1954 , as amended, and the Treasury
Regulations or any rulings promulgated thereunder or as
affected by a decision of any court of competent
jurisdiction. The Member covenants that, prior to entering
into any contract whereby a person agrees to take, or to
take or pay for, power and energy provided to the Member
under this Contract, the Member shall notify the Agency of
its intent to enter into such contract. As soon as practi-
cable after receipt of such notice, the Agency shall advise
the Member as to whether, in the opinion of counsel of rec-
ognized standing in the field of law relating to municipal
bonds selected by the Agency, the entering into of such
contract would result in a violation of the covenant con-
tained in this subsection. The Member agrees that if the
Agency advises the Member that such a violation will or
might result, the Member will not enter into such
contract.
(f) The Member covenants and agrees that it shall, in
accordance with Prudent Utility Practice, (1) at all times
operate the properties of its electric system and the busi-
ness in connection therewith in an efficient manner, (2)
maintain its electric system in good repair, working order
and condition and (3) from time to time make all necessary
and proper repairs, renewals, replacements, additions, bet-
terments and improvements with respect to its electric
system so that all times the business carried on in connec-
tion therewith shall be properly and advantageously con-
ducted; provided, however, this covenant shall not be con-
strued as requiring the Member to expend any funds which
are derived from sources other than the operation of its
electric system and provided further that nothing herein
shall be construed as preventing the Member from doing so.
(g) The Member covenants and agrees that it shall not
issue bonds, notes or other evidences of indebtedness or
incur lease obligations which are payable from the revenues
derived from its electric system superior to the payment of
the operating expenses of its electric system; provided,
however , that nothing herein shall limit the Member ' s
present or future right to issue bonds, notes or other evi-
dences of indebtedness or incur lease obligations which are
payable on a parity with operating expenses or payable from
revenues after payment of operating expenses.
-13-
SECTION 8. Meter Readings and Payment of Bills
(a) The Agency shall read meters or cause meters to
be read at monthly intervals which coincide with the bill-
ing period established by the Agency in accordance with the
Rate Schedule.
The Member shall pay for electric power and energy
furnished hereunder at the office of the Agency, 5920
Castleway West Drive, Indianapolis, Indiana 46250 within 30
days of the bill ; provided, however, that if said 30th day
is a Sunday or legal holiday in the State of Indiana, the
next following business day shall be the day on which such
payment shall be due. In the event that the Member fails
to make payment when due of any amount owing hereunder, the
Agency may impose a late payment charge as provided in the
'Rate Schedule. The Agency shall bill the Member on a
prompt and timely basis in accordance with a schedule to be
determined by the Agency. The Agency may, whenever any
amount due remains unpaid after the due date, take all
steps available to it under applicable law to collect such
amount and, after giving 15 days' advance notice in writing
of its intention to do so, discontinue service hereunder if
permitted by law. The Agency may, whenever any amount due
remains unpaid for 120 or more days after the due date and
after giving 30 days' advance notice in writing of its
intention to do so, terminate this Contract. No such dis-
continuance or termination shall relieve the Member from
liability for payment for electric power and energy fur-
nished hereunder.
(b) In the event the Member desires to dispute all or
any part of a bill, the Member shall nevertheless pay the
full amount of the bill when due and notify the Agency in
writing of the grounds on which any charges in the bill are
disputed and the amount in dispute. The Member will not be
entitled to any adjustment on account of any disputed
charges which are not brought to the attention of the
Agency in the manner herein specified. Such adjustment
shall be for the time period for which it can be estab-
lished a billing error took place but in no event shall the
adjustment period extend past 365 days or, in the event of
meter errors, the date of the last meter test.
SECTION 9. Metering
(a) The Agency shall furnish or cause to be fur-
nished, install and maintain the necessary metering equip-
ment required at each Point of Measurement of the Member to
measure and record the electric power and energy furnished
hereunder at such Point of Measurement. Such metering
-14-
equipment shall provide a continuous record of the 60
minute integrated total demand of the Member at such Point
of Measurement during each billing period throughout the
term of this Contract. Such records shall be available at
all reasonable times to authorized agents of the Member.
The Member may, at its own cost, install additional meter-
ing equipment to provide a check on the Agency's metering
equipment, as long as the Member ' s additional metering
equipment does not interfere with the functioning, opera-
tion, or maintenance of the Agency ' s metering.
(b) The Agency shall test and calibrate meters or
cause meters to be tested and calibrated by comparison with
accurate standards at intervals of not less than twelve
months. The Agency shall also make or cause to be made
special meter tests at any time at the Member ' s request.
The cost of all tests shall be borne by the Agency except
that if any special meter test made at the Member' s request
shall disclose that the meters are recording accurately,
the Member shall reimburse the Agency for the cost of such
test. Meters registering not more than two percent above
or below normal shall be deemed to be accurate. The read-
ings for any meter which shall have been disclosed by test
to be inaccurate shall be corrected in accordance with the
percentage of inaccuracy found by such test from the begin-
ning of the first billing period which began after the next
preceding meter test but in any case for no period longer
than 365 days. Should any meter fail to register, the
electric power and energy delivered during such period of
failure shall for billing purposes be estimated by the
Agency after consultation with the Member from the best
information available. The Agency shall notify the Member
or cause the Member to be notified in advance of the time
of any meter reading or test so that the Member' s represen-
tative may be present at such meter reading or test.
(c) For a fractional part of a billing period at the
beginning or end of service, demand charges under the Rate
Schedule shall be proportionately adjusted by the Agency in
the ratio that the number of hours that electric service is
furnished to the Member (in such fractional billing period)
bears to the total number of hours in the billing period
involved. Except as provided in this paragraph (c) of this
Section 9 with respect to fractional billing periods at the
beginning and end of service, there shall be no proration
of demand charges under the Rate Schedule for any billing
period during any part of which paver is made available to
the Member.
(d) Neither the Agency nor the Member shall be
responsible for the transmission , control, use or
-15-
application of electric power provided under this Contract
on the other side of the Point of Delivery therefor and
shall not, in any event, be liable for damage or injury to
any person or property whatsoever arising, accruing, or
resulting from, in any manner, the receiving, transmission,
control, use, application, or distribution by the Agency or
the Member of said electric power.
SECTION 10. Right of Access
Duly authorized representatives of the Agency and Member
shall be permitted to enter the other ' s premises at all reasonable
times in order to carry out the provisions of this Contract.
SECTION 11. Uncontrollable Forces
Neither the Agency nor the Member shall be considered to be
in default in respect to any obligation hereunder (other than the
obligation of the Member to pay for electric power and energy made
available hereunder to the extent payment is required by Section 5(a)
hereof) if prevented from fulfilling such obligations by reason of
uncontrollable forces, the term uncontrollable forces being deemed
for the purposes of this Contract to mean any cause beyond the con-
trol of the party affected, including, but not limited to, failure of
facilities, flood, earthquake, storm, lightning, fire, epidemic, pes-
tilence, war, riot, civil disturbance, labor disturbance, sabotage,
and restraint by court or public authority, which by due diligence
and foresight such party could not reasonably have been expected to
avoid. Either party rendered unable to fulfill any obligation by
reason of uncontrollable forces shall exercise due diligence to
remove such inability with all reasonable dispatch.
SECTION 12. Power Factor •
The Member shall maintain its. system power factor in accor-
dance with paragraph 4 of Schedule A hereto.
SECTION 13 . Cooperation
If it becomes necessary by reason of any emergency or
extraordinary condition for either the Agency or the Member to
request the other party to furnish personnel, materials, tools, or
equipment for the accomplishment of its obligations hereunder, the
party so requested shall cooperate with the requesting party and
render such assistance as the party so requested may determine to be
available. The party making such request, upon receipt of properly
itemized bills from the other party, shall promptly reimburse the
other party for all costs properly and reasonably incurred by it in
providing such assistance. The cost shall include an amount not to
exceed ten percent (10%) for administrative and general expenses;
such costs are to be determined on the basis of current charges or
-16-
rates used in its own operations by the party rendering the
assistance.
SECTION 14 . Construction, Operation and Maintenance
Standards
The Member shall own, install and maintain electrical pro-
tective relaying equipment at each point of interconnection with the
Agency ' s transmission system. The design and operating characteris-
tics of such equipment shall be coordinated with the Agency and
subject to the Agency ' s approval, which approval shall not be unrea-
sonably withheld.
SECTION 15. Assignment of Power Sales Contract
(a) This Contract shall inure to the benefit of and
shall be binding upon the respective successors and assigns
of the parties to this Contract; provided, however, that,
except for the assignment by the Agency authorized by
clause (b) of this Section 15 and except for any assignment
in connection with the sale, lease or other disposition of
all or substantially all of the Member' s electric system as
provided in Section 7(c) hereof, neither this Contract nor
any interest herein shall be transferred or assigned by
either party hereto except with the consent in writing of
the other party hereto, which consent shall not be unrea-
sonably withheld. No assignment or transfer of this
Contract shall relieve the parties of any obligation
hereunder.
(b) The Member acknowledges and agrees that the
Agency may assign and pledge to any trustee or similar
fiduciary designated in any Bond Resolution all of, or any
interest in, its right, title, and interest in and to all
payments to be made to the Agency under the provisions of
this Contract as security for the payment of the principal
(including sinking fund installments) of, premium, if any,
and interest on any Bonds and may deliver possession of
this Contract to such trustee in connection therewith, and,
upon such assignment, pledge and delivery, the Agency may
grant to such trustee any rights and remedies herein pro-
vided to the Agency and thereupon any reference herein to
the Agency shall be deemed, with the necessary changes in
detail, to include such trustee which shall be a third
party beneficiary of the covenants and agreements of the
Member herein contained. Upon any such assignment, pledge
and delivery, such trustee shall fulfill all of the obliga-
tions with respect to the Member that the Agency was
required to fulfill prior to such assignment, pledge and
delivery.
-17-
SECTION 16. Records and Accounts
The Agency shall keep accurate records and accounts of its
properties and its operations in accordance with or so as to permit
conversion to the Federal Energy Regulatory Commission Uniform System
of Accounts prescribed for Class A and Class B Public Utilities and
Licensees as in effect from time to time. Should the Federal Energy
Regulatory Commission be modified or cease to exist, the records
shall be maintained under the Uniform System of Accounts as adopted
or used by whatever agency succeeds or takes over the duties of the
Federal Energy Regulatory Commission. The Member shall have the
right at any reasonable time to examine such accounts. The Agency
shall cause such accounts to be audited annually by a firm of inde-
pendent public accountants of national reputation and shall supply
copies of such audits to the Member.
SECTION 17. Information
The Agency and the Member will promptly furnish to each
other such information as may be reasonably requested from time to
time in order to carry out more effectively the intent and purpose of
this Contract or as may be reasonably necessary and convenient in the
conduct of the operations of the party requesting such information.
Without limiting the generality of the foregoing, the Member shall,
upon request, furnish to the Agency all such information, certifi-
cates, engineering reports, feasibility reports, information relating
to load forecasts and generation and transmission expansion plans,
financial statements, opinions of counsel (including the opinion
required by Section 19 hereof) , official statements and other docu-
ments as shall be reasonably necessary in connection with financings
of the Agency. The Agency shall furnish the Member with those
reports required to be furnished pursuant to I.C. 8-1-2.2-25 and such
other information reasonably available to it which may be requested
by the Member.
SECTION 18. Amendment
Except as provided for expressly herein, neither this
Contract nor any terms hereof may be terminated, amended, supple-
mented, waived or modified except by an instrument in writing exe-
cuted by each party to this Contract.
SECTION 19. Opinions as to Validity
Upon request by the Agency after the execution and delivery
of this Contract, the Member shall furnish the Agency, in form and
substance satisfactory to the Agency, with (i) an opinion of its city
or town attorney or attorney employed by the Member or certificates
from the Member and ( i i) an opinion of Ice Miller Donadio & Ryan to
the effect that:
-18-
(a) The Member is a municipal corporation duly
created and validly existing pursuant to the Constitution
and statutes of the State of Indiana and its "governing
body" (as defined in Section 2(d) of the Act) is the Common
Council of the City of Richmond.
(b) The Member has full legal right and authority to
enter into this Contract and to carry out its obligations
hereunder.
(c) The city council or town board duly approved this
Contract and its execution and delivery on behalf of the
Member by ordinance duly and lawfully adopted at a meeting
or meetings duly called and held at which quorums were
present and acting throughout and such meeting or meetings
were called pursuant to necessary public notice.
(d) This Contract has been duly authorized, executed
and delivered by the appropriate officers of the Member ;
and, assuming that the Agency has all the requisite power
and authority to execute and deliver, and has duly autho-
rized, executed and delivered, this Contract, this Contract
constitutes the legal, valid and binding obligation of the
Member in accordance with its terms subject, however, to
the effect of, and to restrictions and limitations imposed
by or resulting from, bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting creditors'
rights generally. No opinion need be rendered as to the
availability of any particular remedy.
(e) The execution and delivery of this Contract by
the Member, the performance by the Member of its obliga-
tions hereunder and the consummation of the transactions
contemplated herein do not and will not contravene any
existing law or any existing order, injunction, judgment,
decree, rule or regulation of any court or administrative
agency having jurisdiction over the Member or its property
or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any existing
bond ordinance, trust agreement, indenture, mortgage, deed
of trust or other agreement to which the Member is a party
or by which it or its property is bound.
(f) All approvals, consents or authorizations of, or
registrations or filings with, any governmental or public
agency, authority or person required on the part of the
Member in connection with the execution, delivery and per-
formance of this Contract have been obtained or made.
(g) To the knowledge of such attorney or firm of
attorneys after due inquiry, there is no litigation or
-19-
other proceedings pending or threatened in any court or
other tribunal of competent jurisdiction (either State or
Federal) questioning the creation, organization or exis-
tence of the Member or the validity, legality or enforce-
ability of this Contract.
SECTION 20 . Relationship to and Compliance with Other
Instruments
It is recognized by the parties hereto that, in undertak-
ing, or causing to be undertaken, the planning, financing, construc-
tion, acquisition, operation and maintenance of the System, the
Agency must comply with the requirements of any Bond Resolution, any
agreement with any owner or co-owner of or participant or
co-participant in any facility included in the System relating to the
construction, operation or maintenance thereof and all licenses, per-
mits and regulatory approvals necessary for such planning, financing,
construction, acquisition, operation and maintenance, and it is
therefore agreed that this Contract is made subject to the terms and
provisions of any Bond Resolution, any such agreement and all such
licenses, permits, and regulatory approvals.
SECTION 21. Notices
Any notice, demand or request required or authorized by
this Contract shall be properly given if mailed, postage prepaid, to
the Agency at 5920 Castleway West Drive, Indianapolis, Indiana 46250,
Attention: General Manager, and to the Member at:
Richmond Power and Light
P.O.Box 908
Richmond, Indiana 47374
Att: Mr. Irving A. Huffman
•
General Manager
The foregoing addresses may be changed by similar notice at any
time.
SECTION 22. Waivers
(a) Any waiver at any time by either party hereto of its
rights with respect to a default or any matter arising in connection
with this Contract shall not be deemed to be a waiver with respect to
any subsequent default or matter.
(b) The failure of either party hereto to enforce at any
time any of the provisions of this Contract or to require at any time
performance by the other party hereto of any of the provisions hereof
shall in no way be construed to be a waiver of such provisions nor in
any way to affect the validity of this Contract or the right of such
party thereafter to enforce each and every provision hereof.
-20-
SECTION 23. Severability
In the event that any of the terms, covenants or conditions
of this Contract, or the application of any such term, covenant or
condition, shall be held invalid as to any person or circumstance by
any court having jurisdiction under the circumstances, the remainder
of this Contract and the application of its terms, covenants or con-
ditions to such persons or circumstances shall not be affected
thereby.
SECTION 24. Applicable Law
This Contract shall be governed by and construed in accor-
dance with the laws of the State of Indiana.
SECTION 25. Termination
In addition to any ground for termination- provided in this
Contract, this Contract shall terminate on January 1 , 1983 in the
event the Agency does not prior thereto (i) enter into contracts with
Public Service Company of Indiana, Inc. to acquire an undivided
ownership interest of approximately twenty-five percent (25%) of
Gibson Unit No. 5 or ( ii) issue Bonds to finance the purchase
thereof. If prior to September 1 , 1982, the Member shall not have
obtained an agreement in writing of its wholesale power supplier to
cancel or assign to the Agency on or before January 1 , 1983 the
Member ' s current wholesale power supply contracts, interconnection
agreements or any other wholesale power supply agreements currently
in effect, this Contract shall terminate. The Member hereby agrees
to cooperate with the Agency and to take all reasonable and necessary
actions to obtain such agreement.
SECTION 26. Survivorship of Obligations
The termination of this Contract shall not discharge either
party hereto from any obligation it owes to the other party under
this Contract by reason of any transaction, loss, cost, damage,
expense, or liability which shall occur arise (or the circumstances,
events, or basis of which shall occur or arise) prior to such
termination. It is the intent of the parties hereby that any such
obligation owed (whether the same shall be known or unknown at the
termination of this Contract or whether the circumstances, events, or
basis of the same shall be known or unknown at the termination of
this Contract) shall survive the termination of this Contract.
SECTION 27. No Adverse Distinction
The Agency agrees that there shall be no pattern of adverse
distinction and no pattern of undue discrimination in carrying out
its obligations under this Agreement relating to the Member as
compared to other Members; provided, however, that differences in
-21-
treatment between Members under Schedule A and Schedule B of this
Contract based upon variances in cost of service shall not be consid-
ered a pattern of adverse distinction or a pattern of undue discrimi-
nation for purposes of this Section.
-22
IN WITNESS WHEREOF, the parties hereto have caused this
Contract to be executed by their proper officers, respectively, being
thereunto duly authorized, and their respective corporate seals to be
hereto affixed, as of the day, month and year first above written.
INDIANA MUNICIPAL PURER AGENCY
•
B `
Chairman
Attest:
By ida(ji?/ &,e,t-/
Secretary
(SEAL)
CITY OF RICHMOND, INDIANA
By
yor
Attest:
By V.4_
Clerk
(SEAL)
-23-
ys-y
Exhibit"A"
FIRST AMENDATORY AGREEMENT TO
POWER SALES CONTRACT BETWEEN
INDIANA MUNICIPAL POWER AGENCY
AND
THE CITY OF RICHMOND
This Agreement, made as of the \'-`5 day o _ 2002, by and between
INDIANA MUNICIPAL POWER AGENCY, a body co ' rate d politic and political
subdivision of the State of Indiana, organized and existing under the laws of the State of Indiana
(hereinafter the"Agency"), and THE CITY OF RICHMOND (hereinafter the"Member").
WITNESSETH:
WHEREAS, the Agency and the Member entered into a Power Sales Contract dated April
1, 1982 by which the Agency agreed to sell and deliver to the Member, and the Member agreed to
purchase and receive from the Agency, all electric power and energy which the Member required
for the operation of its municipal electric system; provided, however, Section 3(a) of the Power
Sales Contract provides in pertinent part that after December 31, 2002, the maximum amount of
power required to be sold and delivered by the Agency and purchased and received by the
Member, shall not exceed the Contract Rate of Delivery,which shall be the peak demand of the
Member for power and energy under this Contract during the 60 billing periods preceding
December 31, 2002, as determined by the Agency, adjusted up or down by not more than 10% so
as to provide optimal utilization of the Agency's Power Supply Resources, such adjustment to be
made by the Agency upon the advice of the consulting engineer to the Agency; and
WHEREAS,the Member desires to change the definition of and date for determining the
Contract Rate of Delivery in Section 3(a) of the Power Sales Contract and the Agency is willing
to make such changes; and
WHEREAS,the Agency has periodically advised the Member of its estimated Contract
Rate of Delivery and the Member desires to continue purchasing and receiving from the Agency,
all electric power and energy required for the operation of its municipal electric system, including
that necessary to serve load growth through December 31, 2008 and thereafter, unless the
Member elects by December 31, 2006 the Contract Rate of Delivery as provided herein; and
WHEREAS, the Agency is willing to plan for and invest in Power Supply Resources
necessary to sell and deliver all electric power and energy required for the operation of the
Member's municipal electric system, including that necessary to serve the Member's load growth;
and
WHEREAS,the Agency and the Member desire to amend the Power Sales Contract to
reflect their intentions.
1
Exhibit"A"
NOW, THEREFORE,in consideration of the premises and the covenants,terms and
conditions hereinafter provided,the parties hereto mutually agree as follows:
1. The reference to"Power Supply Resources"in Section 1, "Definitions," of the Power
Sales Contract is deleted in its entirety and the following is substituted:
Power Supply Resources shall mean those resources for the production of electric power
and energy included in the System to the extent the same are employed by the Agency to
supply electric power and energy sold under the Power Sales Contracts.
2. Subsection(a) of Section 3, "Sale and Purchase of Electricity," of the Power Sales
Contract is deleted in its entirety and the following is substituted:
SECTION 3. Sale and Purchase of Electricity
(a)The Agency hereby agrees to sell and deliver to the Member, and the
Member hereby agrees to purchase and receive from the Agency, commencing on
the date of the First Amendatory Agreement and extending through the term
hereof, all electric power and energy which the Member shall require for the
operation of its municipal electric system, provided, however,the Member may
give written notice to the Agency no later than December 31, 2006 that after
December 31, 2008, the maximum amount of power required to be sold and
delivered by the Agency and purchased and received by the Member hereunder
shall not exceed the"Contract Rate of Delivery" as hereinafter defined. The
"Contract Rate of Delivery" shall be the peak demand of the Member for power
and energy under this Contract during the 60 billing periods preceding December
31, 2008, as determined by the Agency.
In the event that, pursuant to the Public Utility Regulatory Policies Act of
1978 or other provisions of law, electric power is required to be purchased from a
small power production facility, a cogeneration facility or other facility,the
Member and the Agency shall use their best efforts to arrange for such purchases
to be made by the Agency. If such arrangements can not be made,then the
Member shall make the required purchases and sell the power purchased to the
Agency at a price equal to the price paid by the Member. The Member appoints
the Agency to act as its agent in all dealings with the owner of any such facility
from which power is to be purchased and in connection with all other matters
relating to such purchases.
D. Subsection(b) of Section 6, "Covenants of the Agency," of the Power Sales Contract is
deleted in its entirety and the following is substituted:
(b) The Agency shall use its best efforts while following Prudent Utility Practice to
provide a constant and uninterrupted supply of electric power and energy under this
2
Exhibit"A"
Contract. In the event that the Agency is not able to supply all of the electric power and
energy requirements of all of the Participating Members that it is required to supply
hereunder, it shall use its best efforts to allocate its electric power and energy available
from its Power Supply Resources during any billing period among the Member and the
other Participating Members as follows: Such allocation shall be made pro rata in
accordance with their respective electric power and energy requirements supplied
hereunder during the corresponding billing period of the preceding calendar year. During
any period the Agency is unable to supply all of the Member's electric power and energy
requirements that it is required to supply hereunder, the Agency shall not in any case be
liable to the Member for damages resulting from such interruption of service and the
Member shall be permitted to acquire from other sources such amount of electric power
and energy which is not supplied by the Agency; provided, however,that at such time as
the Agency is thereafter again able to supply all of the Member's electric power and
energy requirements that it is required to supply hereunder, the Member shall be required
to take and pay for such electric power and energy in accordance with the provisions
hereof.
IN WITNESS WHEREOF, Indiana Municipal Power Agency and the City of Richmond
have caused this First Amendatory Agreement to be executed by their respective duly authorized
officers as of the day, month and year first above written.
IND A MUNICIPAL// P WER AGENCY
By: C�
5
ATTEST: Title: ekG V1/0,;()
Se etary
(Seal)
THE CITY OF RICHMONI),INDIANA
By: `I- 0G✓
David Osburn
ATTEST: Title: General Manager of RP&L
Norma Sc oeder, City Clerk APPROVED B �
(Seal) Shelley D. ' ler, Mayor
3
IMPA
INDIANA MUNICIPAL POWER AGENCY
September 5,2007
Richmond Light&Power
Steve Saum
2000 U.S. 27 South PO Box 908
Richmond, IN 47374
Dear Mr. Saum:
I am enclosing one set of fully executed original copies of the following documents related to the
amendment of your Power Sales Contract:
(I) the ordinance;
(2) the Amendment;
(3) the certificate authenticating the local ordinance; and
(4) the attorney opinion letter from your local counsel.
I am also sending a copy of these documents to your Iocal counsel for his or her reference. I appreciate
your assistance in getting these documents completed in a timely fashion. Should you have any questions
or need further information,please do not hesitate to contact me at 317-575-3870.
Sincerely,
INDIANA MUNICIPAL POWER AGENCY
Kristina Kern Wheeler
Vice President&Staff Counsel
Enclosures
cc: Local counsel
•
KKW/skb
11610 NORTH COLLEGE AVENUE,CARMEL,INDIANA 46032 (317) 573-9955
SECOND AMENDATORY AGREEMENT TO
POWER SALES CONTRACT BETWEEN
INDIANA MUNICIPAL POWER AGENCY
AND
CITY OF RICHMOND
This Agreement, made as of the .):6thday of July. ' ,2007, by and
between INDIANA MUNICIPAL POWER AGENCY (hereinafter the "Agency"),a body
corporate and politic and political subdivision of the State of Indiana, organized and
existing under the laws of the State of Indiana, and THE CITY OF RICHMOND
(hereinafter the"Member").
WITNESSETH:
WHEREAS,the Agency and the Member entered into a Power Sales Contract as
heretofore amended and supplemented(collectively the"Contract"), attached hereto and
made a part hereof, by which the Agency agreed to sell and deliver to the Member,and
the Member agreed to purchase and receive from the Agency, all electric power and
energy which the Member required for the operation of its municipal electric system for a •
term expiring April 1,2032; and
WHEREAS, the Agency is acquiring ownership of new power supply resources
that will require the issuance of debt with a long-term(at least 30-years) amortization of
debt service and associated costs to provide the most economic and reliable power supply
to Member and other members of the Agency; and
WHEREAS,it is in the best interests of the Agency and the Member to amend the
Contract, as well as the Power Sales Contracts the Agency has entered into with other
members of the Agency,to establish a term beginning July 16, 2007 through April 1,
2042 to allow the Agency to issue new debt with a long-term amortization that would
extend beyond the current term of the Contract;and
WHEREAS,Member is willing to amend its Contract to extend the term in the
manner sought by the Agency.
NOW,THEREFORE, in consideration of the premises and the covenants,terms
and conditions hereinafter provided,the parties hereto mutually agree as follows:
Section I. Section 2 of the Contract is amended in its entirety and hereafter
reads as follows:
The term of this Contract shall become effective on July 16, 2007. The Contract
shall remain in effect until April 1,2042. On April 1, 2032, and on each April 1st
thereafter,the Contract term shall be extended automatically for an additional one
year period (i.e., on April 1, 2032,the Contract term shall extend until April 1,
2043).Notwithstanding the foregoing, this Contract may be terminated by the
Member on April 1,2042, or on any subsequent April lst thereafter, upon the
Member having given prior written notice to the Agency pursuant to Section 21 of
the Contract at least ten(10) years prior to the then current date of termination. In
addition,this Contract may be terminated by the Member at such time that all
Bonds shall have been paid or provision for such payment shall have been made
therefore pursuant to the Bond Resolution and all contractual obligations entered
into by the Agency for the generation,purchase,transmission or transformation of
power and energy have been terminated and provision has been made for the
payment of any residual costs thereof. In no event shall the term of this Contract
exceed the maximum term permitted by law.
Section II. A new Section 28 is added to the Contract to read as follows:
SECTION 28. Indemnification.
Agency and Member shall defend and hold each other harmless from any and all
claims,liability and expense, including attorneys' fees, litigation expenses and
•
any judgment arising out of any bodily injury, death or damage to property(other
than bodily injury, death or damage to property proximately caused by the other
party or its servants or employees), occurring on their respective sides of the Point
of delivery, including such injury, death or damage as may be suffered by Agency
or Member or by third parties, except that Agency and Member shall each be
responsible for all claims of its respective employees, agents and servants under
workmen's compensation laws or any similar statutes. In no event shall either
Agency or Member be liable to each other for any indirect, special, incidental or
consequential damages with respect to any claim arising out of this Contract
whether based on contract,tort, strict liability or otherwise.
Section III. Notwithstanding anything to the contrary set forth in the Contract
or this Second Amendatory Agreement,the Agency may set the rates charged to the
Member from time to time pursuant to the provisions of Section 5 of the Contract so as to
amortize the Member's proportionate share of the debt service and associated costs
incurred subsequent to the effective date of this Second Amendatory Agreement over the
term of the Contract, as extended by this Second Amendatory Agreement. The
modification to the Contract made by this Section II shall not be considered a pattern of
adverse distinction or a pattern of undue discrimination for purposes of Section 27 of the
Contract.
Section IV. The Second Amendatory Agreement to this Contract shall become
effective upon execution by the Chairman or Vice Chairman of the Agency's Board of
Commissioners,which shall follow the execution thereof by the Member and the delivery
and acceptance of opinions and certificates required pursuant to Section 19 of the
Contract. Except as expressly provided for above, the terms and conditions of the
Contract herein incorporated by reference remain unchanged and unmodified.
IN WITNESS WHEREOF, Indiana Municipal Power Agency and the City of
Richmond have caused this Second Amendatory Agreement to be executed by their
respective duly authorized officers as of the day,month and year first above written.
INDI ICIPAL PO R A NCY
By:
•
ATTEST: Title: `a, r Vu G'un
Secretary
(Seal)
CITY OF RICHMOND
Mayor
A'1Tp;ST•
..
. .
•
vim_
•o
, ' • • .• ` \
1
A
rti
ti 1�
. 11041*
•4 .^:�L SALLY L.HUTTON
INnI A Mayor
CITY OF RICHMOND WALTER S.CHIDESTER
City Attorney
DEPARTMENT OF LAW KENYATTA P.COX
50 NORTH FIFTH STREET - RICHMOND,IN 47374 Assistant CityAttorney
PHONE (765)983-7220 - FAX(765)983-7365
July 16, 2007
Board of Commissioners of
Indiana Municipal Power Agency
11610 North College Avenue
Carmel, Indiana 46032
Ice Miller, LLP
One American Square, Suite 3100
Indianapolis, Indiana 46282-0200
Hackman Hullet& Cracraft, LLP •
111 Monument Circle, Suite 3500
Indianapolis, Indiana 46204-2030
Re: Validity of Certain Procedures of the City of Richmond Re: Second
Amendatory Agreement to the Power Sales Contract Between the City of
Richmond and the Indiana Municipal Power Agency.
Ladies and Gentlemen:
You have requested an opinion from me as attorney for the City of Richmond,
Indiana (the "Member") as to the validity of(1) the Second Amendatory Agreement to the
Power Sales Contract (the "Amendment"), between the Indiana Municipal Power Agency
(the "Agency") and the Member, (2) the Contract Creating the Agency and Power Sales
Contract, each between the Agency and the Member, as supplemented and amended to
the date hereof (collectively, the "Original Contracts"), and (3) proceedings of the
Member relating to the foregoing. I have examined such records, documents or laws as I
have deemed relevant, appropriate or necessary for purposes of the opinion set forth
herein and I am of the opinion that:
• 1. The Member is a municipal corporation duly created and validly existing
pursuant to the Constitution and statutes of the State of Indiana and its governing body
(as defined in Section 2(d) of IC 8-1-2.2) is the Common Council of the City of
Richmond (the "Council").
2. The Member has had and continues to have full legal right and authority to
enter into the Original Contracts as supplemented and amended by the Amendment
(collectively,the "Contracts") and to carry out its obligations thereunder.
•
' -1-
r
3. The Council duly approved the Amendment and its execution and delivery
on behalf of the Member by ordinance duly and lawfully adopted at meetings duly called •
and held at which quorums were present and acting throughout; such meetings were
called pursuant to necessary public notice.
4. The Contracts have been duly authorized, executed and delivered by the
appropriate officers of the Member; and, assuming that the Agency has all the requisite
power and authority to execute and deliver, and has duly authorized, executed and
delivered the Contracts, the Contracts constitute the legal, valid and binding obligations
of the Member in accordance with its terms, subject, however, to the effect of, and to
restrictions and limitations imposed by or resulting from bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting creditors' rights generally.
The undersigned does not herein render an opinion as to the availability of any particular
remedy.
5. To the best of my knowledge and belief, after due inquiry, and based upon
the representations of my client with respect to factual matters, the execution and delivery
of the Contracts by the Member, the performance by the Member of its obligations under
the Contracts and the consummation of the transactions contemplated therein do not and
will not contravene any existing law or any existing order, injunction,judgment, decree,
rule or regulation of any court or administrative agency having jurisdiction over the
Member or its property or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any existing bond ordinance, trust agreement,
indenture, mortgage, deed of trust or other agreement to which the Member is a party or
by which it or its property is bound.
6. All approvals, consents or authorizations of, or filings with, any
governmental or public agency, authority or person required on the part of the Member in
connection with the execution, delivery and performance of the Contracts have been
obtained or made.
7. To the knowledge of the undersigned after due inquiry, there is no
litigation or other proceeding pending or threatened in any court or other tribunal of
competent jurisdiction (either state or federal) questioning the creation, organization or
existence of the Member or the validity, legality or enforceability of the Contracts.
Very truly yours,
Walter S. Chidester
WSC/mm
-2-
CERTIFICATE OF CITY OF RICHMOND, INDIANA
We, Sally L. Hutton and Karen Chasteen, the Mayor and City Clerk,respectively,
of the City of Richmond, Indiana (the "Member") are the duly elected or appointed,
qualified, acting and authorized officers of the Member and are empowered to make the
certifications and representations included herein. Therefore, we hereby certify and
represent that:
1. The Member is a municipal corporation duly created and validly existing
pursuant to the Constitution and statutes of the State of Indiana and its governing body
(as defined in Section 2(d) of IC 8-1-2.2) is the Common Council of the City of
Richmond (the "Council").
2. The Member, under its full legal right and authority, entered into the
Contract Creating the Agency and the Power Sales Contract, each between the Indiana
Municipal Power Agency ("Agency") and the Member, as supplemented and amended to
the date hereof(collectively, the "Original Contracts"), and has carried out its obligations
. thereunder.
3. The Member has full legal right and authority to enter into the Second
Amendatory Agreement to the Power Sales Contract between the Agency and the
Member(the "Amendment"), and to carry out its obligations thereunder.
4. The Council duly and lawfully adopted and approved the Amendment and
the Original Contracts and authorized the execution and delivery of the Amendment and
the Original Contracts on behalf of the Member at meetings duly called and held at which
quorums were present and acting throughout; such meetings were called pursuant to
necessary public notice.
5. The Amendment has been duly authorized, executed and delivered by the
appropriate officers of the Member; and, assuming that the Agency has all the requisite
power and authority to execute and deliver, and has duly authorized, executed and
delivered the Original Contracts as supplemented and amended by the Amendment
(collectively, the "Contracts"), the Contracts constitute the legal, valid and- binding
obligations of the Member, enforceable in accordance with their terms, subject,however,
to the effect of, and to restrictions and limitations imposed by or resulting from
bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting
creditors' rights generally. We do not herein render an opinion as to the availability of
any particular remedy.
6. The execution and delivery of the Contracts by the Member, the
performance by the Member of its obligations under the Contracts and the consummation
of the transactions contemplated therein do not and will not contravene any existing law
or any existing order, injunction, judgment, decree, rule or regulation of any court or
administrative agency having jurisdiction over the Member or its property or result in a
breach or violation of any of the terms and provisions of, or constitute a default under,
any existing bond ordinance, trust agreement, indenture, mortgage, deed of trust or other
agreement to which the Member is a party or by which it or its property is bound.
7. All approvals, consents or authorizations of, or filings with, any
governmental or public agency, authority or person required on the part of the Member in
connection with the execution, delivery and performance of the Contracts have been
obtained or made.
8. To the knowledge of the undersigned after due inquiry, there is no
litigation or other proceedings pending or threatened in any court or other tribunal of
competent jurisdiction (either state or federal) questioning the creation, organization or
existence of the Member or the validity, legality or enforceability of the Contracts.
IN WITNESS WHEREOF, we have signed our n.ail and impressed the
corporate seal of the City of Richmond, Indiana this/c, day(TAM_ 2007.
taw
Mayor
City of Richmond, Indiana
ATTES :
City Clerk
(SE A if
.a ra r
-
..•;�,:
CITY ORDINANCE NO. 53-2007
An Ordinance of the City of Richmond, authorizing the execution
and delivery of the Second Amendatory. Agreement to the Power
Sales Contract between Indiana Municipal Power Agency and the
City of Richmond, and other matters connected therewith.
WHEREAS, the City of Richmond (the "Member") is a municipality owning and
operating on January 1, 1980, an electric utility which furnished electric service to the public and
purchased electric power from public utilities; and
WHEREAS, the Member is required by law to provide its customers with an adequate,
reliable and economic supply of electric power and energy, but has determined that individually
it is not financially capable of providing the planning, financing, locating and building:of needed
new facilities for generation and transmission to satisfy future requirements of its customers; and
WHEREAS, based upon its obligations to serve its customers, and the above
considerations, the Member determined that it was in its best interest to join with other
municipalities in the State of Indiana as a member of the Indiana Municipal Power Agency (the
"Agency") for the purpose of undertaking the planning, financing, ownership and operation.of a
project or projects to supply electric power and energy for its needs; and
WHEREAS, the Agency and the Member entered into, and have carried out their
respective obligations under, the Contract Creating the Agency and Power Sales Contract, as
heretofore amended and supplemented (collectively, the "Original Contracts"), each between the
Member and the Agency, attached hereto and made a part hereof; and
WHEREAS, under the Power Sales Contract the Agency agreed to sell and deliver to the
Member, and the Member agreed to purchase and receive from the Agency, all electric power
and energy which the Member required for the operation of its municipal electric system for a
term expiring April 1, 2032; and
-1-
WHEREAS, the Agency is acquiring ownership of.new power supply resources that will
require the issuance of debt with a long-term (at least 30 years) amortization of debt service and
associated costs to provide the most economic and reliable power supply to the Member and
other members of the Agency; and
WHEREAS, it is in the best interests of the Agency and the Member to enter into the
Second Amendatory Agreement to the Power Sales Contract between the Agency and the
Member (the "Amendment"), to establish a term beginnin <o , 2007 through April 1,
2042 to allow the Agency to issue new debt with a long-term amortization that would extend
beyond the current term of the Power Sales Contract; and
WHEREAS, the Original. Contracts and the Amendment, marked as Exhibit A, are
attached hereto, incorporated herein by reference and two (2) copies of each are on file in the
office of the City Clerk for public inspection,pursuant to IC 36-1-5-4; and
WHEREAS, Member desires to amend the Power Sales Contract to extend the term in
the manner described above.
WHEREAS, representatives of the Member have reviewed the Original Contracts and the
Amendment and have obtained independent advice and counsel with respect thereto where
appropriate and the Member has had the opportunity to review the Original Contracts and the
Amendment with the Agency; and
WHEREAS, based upon the foregoing facts, the Member by this Ordinance hereby finds
and determines to ratify the Original Contracts and approve the Amendment.
NOW THEREFORE BE IT ORDAINED BY THE COMMON COUNCIL OF THE
MEMBER:
•
-2-
Section 1. The findings and determinations set forth in the preambles to this Ordinance
are hereby made findings and determinations of the Member.
Section 2. By this Ordinance, the entry of the Member into the Original Contracts and its
performance of the terms and conditions thereof are hereby ratified and confirmed. The Member
is authorized pursuant to this Ordinance (a)to enter into the Amendment in substantially the
form attached hereto as Exhibit A, and (b) to be bound by the terms and conditions of the
Original Contracts as supplemented and amended by the Amendment, as further supplemented
from time to time, the By-Laws of the Agency and such other lawful actions as may be
heretofore have been taken by the Board of Commissioners of the Agency.
Section 3. By this Ordinance, the Mayor of the City of Richmond is hereby authorized
and directed to execute and deliver, and the City Clerk is hereby authorized to attest and seal,the
Amendment.
Section 6. All ordinances and parts of ordinances in conflict herewith are hereby
repealed.
Section 7. This Ordinance shall be in full force and effect from and after its passage.
PASSED AND ADOPTED by the Common Council of the City of Richmond, Indiana,
this /L day of , 2007.
CITY OF RICHMOND, INDIANA
.//
By
President, C znmon4ouncil
ATTEST:
sniff
s-V) :z
�t y
�1�Q, a
.J94��pa
<S 35t` a�
,
Presented by me, the undersigned City Clerk of the City of Richmond, to the Mayor of
the City of Richmond for his/her approval on this /7 day of , at
M.
City Clerk
Approved by the undersigned Mayor of the City of Richmond, this / 7 day of
,h
A xice-il(---
Mayor, City of Richmond
-4-
THIRD AMENDATORY AGREEMENT TO
POWER SALES CONTRACT BETWEEN
INDIANA MUNICIPAL POWER AGENCY
AND
CITY OF RICHMOND
This Third Amendatory Agreement (the "Agreement"), made as of the day
of , 2021, by and between INDIANA MUNICIPAL POWER
AGENCY (hereinafter the "Agency"), a body corporate and politic and political
subdivision of the State of Indiana, organized and existing under the laws of the State of
Indiana, and the CITY OF RICHMOND (hereinafter the"Member").
WITNESSETH:
WHEREAS, the Agency and the Member entered into a Power Sales Contract as
heretofore amended and supplemented (collectively the "Contract"), attached hereto and
made a part hereof,by which the Agency agrees to sell and deliver to the Member, and the
Member agrees to purchase and receive from the Agency, all electric power and energy.
which the Member requires for the operation of its municipal electric system for a term
expiring April 1, 2042; and
WHEREAS, the Agency plans for its power supply on a thirty-year timeline and
the power supply resources considered can take five to ten years or more for development
and construction,with useful lives of decades longer; and
WHEREAS, changing public opinions and government regulations relating to
climate change and carbon dioxide emissions require that the Agency be able to adjust its
power supply portfolio as the need arises; and
WHEREAS,major new power supply resources would require the issuance of debt
with a long-term(at least thirty years) amortization of debt service and associated costs to
provide the most economic and reliable power supply to Member and other members of
the Agency; and
WHEREAS, it is in the best interests of the Agency and the Member to amend the
Contract, as well as the Power Sales Contracts the Agency has entered into with other
members of the Agency, to extend the existing term through April 1, 2050 with a thirty-
year notice of termination that would allow the Agency the discretion to issue new debt
with a long-term amortization if necessary; and
WHEREAS,Member is willing to amend its Contract in the manner sought by the
Agency.
NOW, THEREFORE, in consideration of the premises and the covenants, terms
and conditions hereinafter provided, the parties hereto mutually agree as follows:
Section I. The first paragraph of Section 2 of the Contract is deleted and
replaced with the following:
The term of this Contract shall become effective on April 1, 1982. The Contract
shall remain in effect until April 1, 2050. On April 1, 2020, and on each April 1st
thereafter, the Contract term shall be extended automatically for an additional one
year period (i.e., on April 1, 2020, the Contract term shall extend until April 1,
2051). Notwithstanding the foregoing, this Contract may be terminated by the
Member on April 1, 2050, or on any subsequent April 1St thereafter, upon the
Member having given prior written notice to the Agency pursuant to Section 21 of
the Contract at least thirty (30) years prior to the then current date of termination.
In addition, this Contract may be terminated by the Member at such time that all
Bonds shall have been paid or provision for such payment shall have been made
therefore pursuant to the Bond Resolution and all contractual obligations entered
into by the Agency for the generation,purchase, transmission or transformation of
power and energy have been terminated and provision has been made for the
payment of any residual costs thereof.
Section II. The Agreement shall become effective upon execution by the
Agency's President or Chairman or Vice Chairman of the Agency's Board of
Commissioners,which shall follow the execution thereof by the Member and the delivery
and acceptance of opinions and certificates required pursuant to Section 19 of the Contract.
Except as expressly provided for above, the terms and conditions of the Contract herein
incorporated by reference remain unchanged and unmodified.
[Signatures on following page.]
IN WITNESS WHEREOF, Indiana Municipal Power Agency and the City of
Richmond have caused this Agreement to be executed by their respective duly authorized
officers as of the day,month and year first above written.
INDIANA MUNICIPAL POWER AGENCY
By: .(3\12 -- c3(Aig
ATTEST:
IMPA Secretary
(Seal)
CITY OF RICHMOND
By:
ATTEST:
t i
.. roes .4r
(S l) •;
E. •
e
;icy ......\N®;%.s
,
' , .
.
'I
'
.
.
.
.
. . ..
CERTIFICATE OF CITY OF RICHMOND, INDIANA
We, David Snow and Karen Chasteen, the Mayor and Clerk, respectively, of the
City of Richmond, Indiana (the "Member") are the duly elected or appointed, qualified,
acting and authorized officers of the Member and are empowered to make the certifications
and representations included herein. Therefore, we hereby certify and represent that:
1. The Member is a municipal corporation duly created and validly existing
pursuant to the Constitution and statutes of the State of Indiana and its governing body(as
defined in Section 2(d) of IC 8-1-2.2) is the Common Council of the City of Richmond
(the "Council").
2. The Member, under its full legal right and authority, entered into tie
Contract Creating the Agency and the Power Sales Contract, each between the Indiana.
Municipal Power Agency ("Agency") and the Member, as supplemented and amended to
the date hereof(collectively,the "Original Contracts"), and has carried out its obligations
thereunder.
3. The Member has full legal right and authority to enter into the Third.
Amendatory Agreement to the Power Sales Contract between the Agency and the Member.
(the "Amendment"), and to carry out its obligations thereunder.
4. The Council duly and lawfully adopted and approved the Amendment and
the Original Contracts and authorized the execution and delivery of the Amendment and
the Original Contracts on behalf of the Member at meetings duly called and held at which
quorums were present and acting throughout; such meetings were called pursuant to
necessary public notice.
5. The Amendment has been duly authorized, executed and delivered by the
appropriate officers of the Member; and, assuming that the Agency has all the requisite
power and authority to execute and deliver, and has duly authorized, executed and
delivered the Original Contracts as supplemented and amended by the Amendment
(collectively, the "Contracts"), the Contracts constitute the legal, valid and binding
obligations of the Member, enforceable in accordance with their terms, subject, however,
to the effect of,and to restrictions and limitations imposed by or resulting from bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting creditors' rights
generally. We do not herein render an opinion as to the availability of any particular
remedy.
6. The execution and delivery of the Contracts by the Member, the
performance by the Member of its obligations under the Contracts and the consummation
of the transactions contemplated therein do not and will not contravene any existing law or
any existing order, injunction, judgment, decree, rule or regulation of any court or
administrative agency having jurisdiction over the Member or its property or result in a
breach or violation of any of the terms and provisions of,or constitute a default under, any
existing bond ordinance, trust agreement, indenture, mortgage, deed of trust or other
agreement to which the Member is a party or by which it or its property is bound.
7. All approvals, consents or authorizations of, or filings with, any
governmental or public agency, authority or person required on the part of the Member in
connection with the execution, delivery and performance of the Contracts have been
obtained or made.
8. To the knowledge of the undersigned after due inquiry,there is no litigation
or other proceeding pending or threatened in any court or other tribunal of competent
jurisdiction (either state or federal) questioning the creation, organization or e 'stence of
the Member or the validity, legality or enforceability of the Contracts.
IN WITNESS WHEREOF,we have si ed our names and impress dot e corporate
seal of the City of Richmond,Indiana this day of��G� 21.
or
City of Ric on , ndiana
ATTEST:
C101111Ii,,
0_1 CLERI•r/i•
(VEAL) f'• ��i
1
C •vc r
•
',yMoNol;•