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Home My WebLink AboutORD 3471• ORDINANCE NO. 3471 ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO APPROVING THE TERMS AND CONDITIONS OF AN AMENDMENT TO A !'\RMBER AGREEMENT 8E'T'"riEEN NORTH.ERN CALIFORNIA POWER AGENCY AND CERTAIN PARTICIPATING MEMBERS RE t.A.TING TO Gt:OTHERJ!II.AL GENERATING PROJECT NO. 3 AN.D OTHER M.A.TTERS, .AND AUTHORIZING THE MAYOR TO EXECUTE AND DELIVER SA!D AMENDMENT BY THE CITY OF PALO ALTO WHEREASt' pursuant to the provision£; of Chapter 5, Division 7 ~ Title 1, of the Government Code of the State of Californiaf as amended {the "Joint Powers .;ct"}, t.oe City of P.:'llo hlt.o (the i'City") r:tnd cer tain other public agencies created pu~suant to the laws of the State of California (collectively 1 the '"Member.s~} 1 have entered into a Joint Powers Agr·eeroent {the ~Ag·.t:·er::ment"), as amended, creating thf~ North~~rn Californir~ Public Agency {the "l\genr:y'l! 1 <3. public entity separ.ate and apart from the Members~ and WHERBA.S, in accordance with the AgreEC:ment and the Joint Powers Act, the Agency proposes to acqui ce and c~nstr:uct or cause to be ac quired and constructed and to operate or: cause to be operated a project (the "Project") consisting of (i) two 55-megawatt geothermal generating units, and relatea facilities, including transmission facilities to the generating tie, in the State of California, and all rights, properties and improvemt~nts necessat·y therefo:c, including fuel and water. facili ties and resources, and capital improvements thereto that may be con structed from time to time, and interests in certain other property and rights relating t.het·eto, including a headquarters facility for: use by the Agency in connection with the Project; {ii) Project No. 2, subject to the rights of the participants therein; and (iii) the refinancing of certain Development Fund expenditures~ and WHEREAS, the City has entered or will enter into the Agreement for Construction, Operation and Financing of Geothermal Generating Project Num.ber 3 (the 1111 Member Agreement•) dated for convenience as of .. luly 1, 1983, to purchase electric capacity and energy of the Project from the Agency; and WHEREAS, this City Council finds and determL;.es that it is desir able to amend the MPmber Agreement l n accordance with the terms and provisions of Amendment Number One to Agreement fot" Construction, Oper ation a1d Financing of Geothermal Generating Project Number 3 dated as of August 1, 1983 (the -Amendment•)1 NOW, THEREFORE, the Counc i 1 of the City of Palo Alto does ORDAIN as follows: SECTION 1. The Council hereby finds and determines that the terms and provisions of the Amendment in substantially the form submitted to this City Council be, and the same are hereby, approved. SECTION ?.• The Mayor is authorized to execute and deliver said Amendment by and on behalf of the City. SECTION 3. The Mayor is furthet authorized to execute any and all documents deemed necessary to increase the City's East Block Entitle ment Percentage and its Project Entitlement Percentage from 9.158 per cent and 4.579 percent, respectively, up to percentages which reflect an increased share of the East Block of up to 3.5MW. SECTION 4. Pursuant to Section 54241 of the Government Code of the State of Ca 1 i forn ia, this ord ina nee is subject to the prov is .ions for refecendum applicable to the City. SECTION 5 ~ The city Clerk shall c~1: t i ~y to the {'1 . un~~nt of this ordin-ance-ai1a-·shall cause this ord ina nee to b<: publ LllHk in accordance 1vith Section 54.242 of the Government Code or t.he Slate of Cal.iforn.i'-1. SECTION 6o This ordinance shall become t~ff-ectiv•~ upon the com-· rnencement of the thi t'ty-f i r st day after the day 0 f:' its passage~ INTRODUCED: PASSED: AYES: NOES: A.BWf.'ENTIONS: APPROV September l /' -I 1983 September 26, 1983 Bechtel~ Cobb~ Eyerly, Fazzino 1 Fletcher, Klein, Levy, R en z e 1 , \l i the r spoon None None ~-~+-~~~----=::--- L Draft of August 25, 1983 ~·--.. , . ' ~ ~... ~-, ' -" ,' ·ro AGR~EKRBT FOR CONSTRUCTION~ OPER}.TION AND FINk~CING OF GB0'1'BER.MAL GBNERATI~ PROJECT NUMBER 3 Dated as of July 1~ 1983 By and Among NORTBBRR CALIPOR!UA POWER AGENCY and ctn or ;u,~ Clft OF BIOOS CIH OF GRilLE!' CI7T OF B&ALDSBDRG Cift OF 'LOOI cxn or LOII!OC Cift OP PALO IUD ern or aoszvn:.LE cxn or surrA a.AU. ern or ou.M PLUMS·-SII&RRA RURAL ELBC'ftlC OOOP2Rlt.HVE i r • AMENDMENT WJMBER ONE TO 7-.G REEMENT FOR CONSTRUCTION, OPERATION AND r rr;l\~, ~: ~;:; OF GEOTHERMAL GENERATING PROJECT NUMBER 3 This Amendment Numbet· One, dated as of Aug:..ls~ 1, l·~·;;; ~ o;· and among Northern California PO'Wet Agency, a joint po'ltie:s agf::·,;~; o: the State of Cal if orn ia ( het ei naf ter called "NCPA"} and t.t.t? c. u. <.::::. entities executing this Amendment Number One. WITNESSETH.\ WHEREAS, NCPA and the ether entities executi~c thi£ Am~ndrnent Number One have ent~re d or: will enter i nt '-' an ",;-:;~ ee:-,e;,-: for Construction, Operation and Financing of Geothcr::~..:..J G~:~\(:2'tin·: Project Number 3", dated as of July l, 1983 {the 11 Cri~.ina: Agreement"} to provide for the construction~ O-p€ration and f.ir~·,:-.c.".:IS of the Project~ the sale by NCPA of capacity and energy of the Project to the Project Participants and the security o: the Bonds to be issued to finance the ProjectJ and WHEREAS, NCPA and the other ~ntities e~ecuti~g t~i~ Amendment Nurr•.ber One desire to a."Tiend the Original Agreement in var i-· ous respectsF NOW THEREFORE~ the parties hereto do agree as follows: S!C'fiON 1 .. Definitions. The capitalized terms use6 herein shall ha,,e tbe respective meaninqs in this Amendment Nu.-nbe:: One as ascribed thereto in the Ori9inal Agreement. All references in this Amendment Number One to the Original Agreement shall mear. the Original Agreement as amenCled by this Amendment Number One. SBC!IOR 2. Asendaeots. (a) section l(f} of the Original Agreement is hereby amended to read in its entirsty as follow~·= • (f) "Project Enti tlemedt Percentage P means r -..ith t·espect t.o each Project Partic.ipant, the percentage so identified and set forth opposite the name of such Project Participant in Appendix A hereto, as such percentage shall be revised from time to time in accordance with Sections 7(d) and 13 hereof. "East Block Entitlement Petcentage" a·nd •project No. 2 Entitlement Percentage• mean, with r~spect to each Project Participant, the percen tages so identified and set forth opposite the name of such Project Participant in Appendix A heret.o, as s~1ch percen tages shall be revised from time to time in accordance with Sections 7(d} and 13 hereof.~ -2- . . ' --... · --....:_ . . . ~ . -. .... • (b) Section 7{d) of the Original Agreement is hereby amended by adding at the end thereof the following: ~upon any change in Project Entitlement ~ercentage p u r sua n t to t h i s Sect i c n 7 ( d ) r. ( i ) t h ~ l? r o j e .: t No • 2 Entitlement Percentage (if any) and the ~ast Block Entitlement Percentage of each Project Participant shall be automatically increased for th€ remaining ter~ of this Agreement by allocating the Project No. 2 Entitlement Perce~tage (if any) and the East BlocY, E~titlement Percentage of the defaulting Project Particip~~t among the non-defaulting Project Participants in proportio~ to each Project Participant~s respective increase in itt Project Entitlement Percentage, and (ii) the defaulting Project Participant's Project No. 2 Entitlement Percentage and East Block Entitlement Percentage shall (but only ior the pur p...'1ses of cornputi119 the res}?ective P':"oj.;;>ct "~o. 2 Enti t.lement Percentages and the respective East Block Entitlement Percentages of the nondefaulting Project Particip:.1nts) be reduced correspond:i.ngly." (c) Section 12(a) of the Original Agree~ent is hereby amended to read in its entirety as fellows: 11 (A} This Agreement shall not take effect until {i) it and/or any supplement to it p'ovided for in Section 2(c) of the Second Phase Agreement has been duly executed and delivered to NCPA by Project Participants the Project Entitlement Percentages of which, in the aggregate 7 equal 100%, all in accordance with Section 2(c) of the SEHZ<)nd Phase Agreement and accomr;canied by an opinion for each Project Participant of an attorney or firm of attor neys in substantially the form attached hereto as Appendix 8, a~d (ii) the Refunding Date shall have occurred.Wj (d) Section l~ (e) of the Original Agreement is hereby sup plemented by adding at the end thereof the following: • (v) The third. paragraph of Section 5P. of the Project No.. 2 Member Agreement shall be superseded by section 7 (d) of t,he Agreement fot Construction, Operation and Financing of Geothermal Generating Project Number 3. (vi) Section 1 (9) of the Project No. 2 Memb~r Agreement shall bf> amended by adding at the-end thereof the following~ -3- . " • t Any Project Participant: U.'"lder tbe AgrE:ement for Construction, Operation and Financing of Geothermal Generating Project Number 3 that has a Project No~ 2 Entitlement Percentage great~r than 0% under such Agreement shall be ~ (Purchasing Participating Member' for all pur· poses of this Agreement and such Purchasir.g Participating Member's Purchasing Participatior, Percentage shall be its Project No. 2 Entitlement Percentage·~~ (~) The first paragraph of Appendix B to the 0rig~n~: Agreement is hereby amended to read in its entirety as fallow£: ~r am acting as counsel to the (the nProject Participant~) under the Agreement for Construction, Operation and Financing of Geothermal Generating Project Number 3 dated as of July l f 1982, as amended by Amer1d;11ent Number One dated as of Aug·ust 1, 1983 (the ,.Agreementr.) among the Project Participant, Northern California ~·'ower Agency (the "Agency") and certain other entities, and I have acted as counsel to the Project Participant in connl;..:: tion with the matte::s referred to herein. As such courLsel I have examined and arn familiar with ( i) those documents relating to the e~istence, organization and operation of the Project Participantf (ii) all necessary documentation of the Project Participant relating to the authorization, execution and d~livery of the Agreement and (iii) an exe cuted counterpart of the Agreement.R SBC'!'IOB 3. Original Agr~nt Re.ains in Pull Force and Effect. Except as amended bf this Amendment Number One, the Original Agre~ment heretofore existing remains in full force and effect. This Amendment Nurober One ma.y be executed in several coun terparts, all or any of which ahall be regarded for all purposes as one original and shall constitute and be but one and the same instrument. -4- • , ... 'I • • • IN WITNESS WHEREOF each Project Participant has executed this Amendment Number One with. the approval of its governing bod:,;, and caused its officia1 seal to be affixed and NCPA has executed th1s Amendment Number One in accordance with the authorization of its Commission. NORTHERN CALIFORNIA POWER AGENCY By ___ _ And ____________________ _ CITY OF ALAMEDA Sy ________ _ And _______________ ~ CITY OF BIGGS BY~---4 --·-~ And._ . -~-··--__ CITY OF HEALDSBURG BY~------------------And ___________________ . CITY OF LODI By __ , And ____________________ _ CITY OF LOMPOC BY----------------------And ____________________ _ -s- CITY OF PALO ALTO By~-------------------And ______________________ __ CITY OF"ROSEVILLE !~Y~-----·---·-·---~ And ___ "------~ CITY OF SANTA CLARh BY~-·------------1\nd ____ , CITY OF GRIDLEY By---:---------- And __ ·-~------- UKIAH BY-----------------------And ____________________ _ PLUMAS-SIERRA RURAL ELECTRIC COOPERATIVE BY----~--~----------And ----~--------------~ I I i