Loading...
HomeMy WebLinkAboutRESO 9328Resolution No. 9328 Resolution of the Council of the City of Palo Alto Approving and Authorizing the City Manager to Execute and Amend the Operating Agreement Between the Northern California Power Agency and The City of Palo Alto to Allow Scheduling Coordination Services of Renewable Resources RECITALS A. The Northern California Power Agency ("NCPA") was formed in 1968 for the purpose of utilizing the joint action of participating public power entities to pursue common interests for the benefit of all such members; and subsequently revised on April 1, 1973 and January 1, 2008. The City of Palo Alto ("City") is a member NCPA as one of the original signatories to the NCPA Joint Power Agency Agreement. B. The City operates as a metered subsystem located within the California Independent System Operator Corporation (fiCAISO"), and is a party to the Second Amended and Restated NCPA Metered Subsystem Aggregator Agreement (flMSSA Agreement"), as it may be amended from time to time. NCPA, acting on behalf of the City, schedules the City's electric load and resources within the balancing authority pursuant to the terms of the CAISO Tariff and subject to the terms and conditions of the NCPA Scheduling Coordination Program Agreement (fiSCPA"). By Resolution Number 8200, Council approved the City's participation in the NCPA SCPA. The SCPA is intended to cover scheduling coordination services for member loads and NCPA owned and/or operated projects (fiN CPA Projects") exclusively. C. By Resolution Number 9152 Council updated the Long-term Electric Acquisition Plan (LEAP) with three primary energy portfolio objectives and the directive to achieve a Renewable Portfolio Standard (flRPS") by pursuing a minimum level of renewable purchases of at least 33 percent of retail sales by 2015 while ensuring that the retail rate impact for renewable purchases does not exceed 0.5 cents per kilowatt hour. D. To meet the City's RPS, by resolution Council has approved seven Power Purchase Agreements (flPPA") for the delivery of long-term renewable resources for which the City is responsible for providing scheduling coordination services as follows: 130409 dm 00710205 1. 2. 3. 4. 5. 6. 7. Resolution #9055: Ameresco Crazy Horse, LLC; Resolution #8495: Ameresco Half Moon Bay, LLC; Resolution #8852: Ameresco Keller Canyon, LLC; Resolution #9055: Ameresco San Joaquin, LLC; Resolution #8473: Ameresco Santa Cruz, LLC; Resolution #8971: Ameresco Johnson Canyon, LLC; and Resolution #9225: Trina Brannon Solar, LLC. 1 E. The City staff does not have the resources, capabilities andlor expertise to perform scheduling coordination services and therefore has named NCPA as its scheduling coordinator forthe PPAs listed in Recital D. NCPA has been providing scheduling coordination services on behalf of the City for the PPAs on-line, however has indicated that resources acquired by the City through PPAs are not NCPA Projects and therefore are not covered under the NCPA SCPA. In an effort to formalize responsibilities and obligations and to minimize cross member risk to other NCPA members, NCPA has requested that the City sign the NCPA Commission-approved Operating Agreement to continue to receive scheduling coordination services for non-NCPA Projects. The Operating Agreement may be subsumed by an Amended and Restated Scheduling Coordination Program Agreement. F. The City intends to continue signing PPAs until it achieves its RPS target up to the rate impact limit of 0.5 cents per kWh'and in the absence of an alternative scheduling coordinator wishes to continue to use NCPA as its scheduling coordinator for existing and future renewable resources as determined by the City. The Council of the City of Palo Alto does RESOLVE as follows: SECTION 1. The Council hereby approves, and authorizes the City Manager, or his designee, to sign the Operating Agreement with NCPA and amend as needed to add andlor remove generating facilities. SECTION 2. Cost associated with the Operating Agreement will be included in the annual NCPA Budget as approved by the NCPA Commission and provided for in the Utilities Department's Electric Supply Purchase Cost on an annual basis. II II II II II II II II II 2 130409 dm 0071 0205 SECTION 3. The Council hereby finds that this ordinance is exempt from the provisions of the California Environmental Quality Act pursuant to Section 15061(b)(3) of the California Environmental Quality Act Guidelines, because it can be seen with certainty that there is no possibility of significant environmental effects occurring as a result of the approval of this Resolution. INTRODUCED: April 15, 2013 PASSED: BERMAN, BURT,HOLMAN, KLEIN, KNISS, PRICE, SCHARFF, SCHMID, SHEPHERD AYES: NOES: ABSTENTIONS: ABSENT: APPROVED AS TO FORM: Senior Asst. City Attorney 130409 dm 00710205 tjl/l._-- Mayor APPROVED: D i r(QG.uw"'t1i~ Services Di rect' of lJJt1 ities 3 OPERATING AGREEMENT BETWEEN NORTHERN CALIFORNIA POWER AGENCY AND THE CITY OF PALO ALTO This Operating Agreement ("Agreement") is made by and between the NORTHERN CALIFORNIA POWER AGENCY ("NCPA"), a joint public powers agency with offices located at 651 Commerce Drive, Roseville, California and the CITYOF PALO ALTO with offices located at 250 Hamilton Avenue, Palo Alto, California, 94301 ("Contracting Member") (together sometimes referred to herein individually as "Party" and collectively as "Parties") as of ,2013 (the "Effective Date") in Roseville, California. Section 1. RECITALS This Agreement is entered into based on the following facts, among others: 1.1 NCPA is a public agency created by a joint powers agreement established under California law for the purpose of assisting its members in the efficient use of their common powers. 1.2 Contracting Member is engaged in, among other things, transmitting and distributing electric power in Palo Alto, California. Contracting Member is also a member of NCPA. Contracting Member desires that NCPA provide Contracting Member with the Services described in this Agreement. 1.3 Article III, Section 3 of the "Amended and Restated Northern California Power Agency Joint Powers Agreement" (as amended and effective January 1, 2008) (hereinafter "JPA") entitled "Powers and Functions" provides that none of the debts, liabilities or obligations of NCPA shall be the debts, liabilities or obligations of any of the members of NCPA unless assumed in a particular case by resolution of the governing body of the member to be charged." Notwithstanding the foregoing, Article V, Section 1 of the JPA entitl,ed "General Provisions" provides that "[tJhe governing Commission of NCPA is authorized to procure public liability and other insurance as it deems advisable to protect NCPA and each of the parties hereto, charging the cost thereof to the operating costs of NCPA." 1.4 Contracting Member desires to secure NCPA's Services under this Agreement in a manner that balances its interests and the interests of other NCPA members with the ongoing financial viability and professional responsibilities of NCPA. Accordingly, Contracting Member desires to secure NCPA's Services under this Agreement by accepting a limited insurance based recourse against NCPA, with the option of procuring additional insurance at Contracting Member's sole expense, thereby insuring that NCPA will substantially limit its risk for the provision of such Services which, in turn, allocates risks back to the Contracting Member in the event NCPA is not adequately insured. 1.5 The NCPA Commission has previously approved an agreement with Contracting Member to provide these same or similar services ("the Prior Agreement"). The Prior Agreement, 1 Operating Agreement Between NCPA and City of Palo Alto approved by NCPA Commission resolution 09-64 was not executed by Contracting Member and is superseded by this Agreement. NOW THEREFORE, in consideration of the mutual covenants and promises set forth, NCPA and Contracting Member agree as follows: Section 2. DEFINITIONS Whenever used in this Agreement with initial capitalization, these terms shall have the following meanings as applicable, whether in the singular or plural : 2.1 "Annual Budget" means the budget for the ensuing Fiscal Year adopted by the NCPA Commission, as it may be amended from time to time. 2.2 "California Independent System Operator (CAl SO)" is a non-profit public benefit corporation responsible for the provision of fair and open transmission access, and maintaining reliable and efficient operation of the grid, within the State of California pursuant to Chapter 2.3, Part 1, Division 1 of the California Public Utilities Code. 2.3 "Fiscal Year" means the NCPA fiscal year; currently the twelve month period beginning July 1 and ending on the next following June 30. 2.4 "General Operating Reserve Account" means the NCPA General Operating Reserve created through resolution of the NCPA Commission, as the same may be amended from time to time. 2.5 "Generating Facilities" shall mean those generating units listed in ExhibitB for which NCPA has been designated as the Scheduling Coordinator, for which CAISO has assigned a Resource 10, and as to which the Contracting Member has entered into a power purchase agreement with third persons to receive the energy and capacity produced by the generating units. 2.6 "Good Utility Practice" shall mean any of the practices, methods and acts engaged in or approved by a significant portion of the electric utility industry during the relevant time period , or any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result of the lowest reasonable cost consistent with good business practices, reliability, safety and expedition . Good Utility Practice is not intended to be limited to the optimum practice, method or act to the exclusion of all others, but rather to be acceptable practices, methods, or acts generally accepted in the region and consistently adhered to by the electric utility industry. 2.7 "NCPA Members" shall mean the signatories to the JPA or those agencies which have executed an Associate Member Agreement with NCPA. 2.8 "NCPA Project" has the meaning set forth in the Northern California Power Agency Facilities Agreement between NCPA, certain NCPA Members and the Turlock Irrigation District and dated as of September 22, 1993, as the same has been amended and as it may hereafter be amended from time to time. 2 Operating Agreement Between NCPA and City of Palo Alto 2.9 "Resource 10" shall mean the CAISO resource identifier used for tracking each resource for market scheduling, settlement and outage coordination purposes. 2.10 "Scheduling Coordinator" shall mean an entity certified by the CAISO for the purposes of undertaking the functions of a Scheduling Coordinator specified in the CAISO tariff, including, but not limited to, submitting and settling bids, self schedules, and trades in the CAISO markets. 2.11 "Scheduling Coordination Program Agreement" or "SCPA" shall mean the NCPA Scheduling Coordination Program Agreement dated as of August 28, 2002, as such may be amended from time to time. 2.12 the SCPA. "Scheduling Coordination Services" shall mean services provided by NCPA under 2.13 "Stranded Costs" shall mean all costs incurred by NCPA in providing Services to Contracting Member under this Agreement that could not reasonably be avoided by NCPA from the date it receives a written Notice of Termination. Such costs may include, but not be limited to, salary and employment costs, rent, utilities, or contracts incurred to provide Services under this Agreement. 2.14 "Uncontrollable Force" shall mean any act of God, labor disturbance, act of the public enemy, war, insurrection, riot, fire, storm, flood, earthquake, explosion, any curtailment, order, regulation or restriction imposed by governmental, military or lawfully established civilian authorities or any other cause beyond the reasonable control of the Party claiming Uncontrollable Force which could not be avoided through the exercise of Good Utility Practice. Section 3. SERVICES TO BE PROVIDED; AUTHORIZED REPRESENTATIVES; STANDARD OF PERFORMANCE 3.1 Services. This Agreement is entered into by the Parties in order for NCPA to provide services to Contracting Member for the services described in Exhibit A hereto ("Services"). 3.2 Authorized Representatives. The following are the Authorized Representatives of the parties for contract administration purposes under this Agreement: David Dockham Assistant General Manager -Power Management Northern California Power Agency 651 Commerce Dr. Roseville, CA 95678-6420 (916) 781-4256 Phone (916) 781-4252 Fax Valerie Fong Director of Utilities City of Palo Alto 250 Hamilton Avenue Palo Alto, CA 94301 (650) 329-2277 Phone (650) 321-0651 Fax No Authorized Representative is authorized to amend any provision of this Agreement except in accordance with Section 12.16. 3 Operating Agreement Between NCPA and City of Palo Alto 3.3 Standard of Performance. NCPA will perform the Services using that level of skill and attention reasonably required to complete the Services in a competent and timely manner. 3.4 Assignment of Personnel. NCPA shall assign only competent personnel to perform Services pursuant to this Agreement. 3.5 Time. NCPA shall devote such time to the performance of Services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 3.3 above, and to satisfy NCPA's obligations hereunder. Section 4. TERM AND TERMINATION 4.1 Authorization to Perform Services. NCPA is not authorized to perform any initial Services or incur any costs whatsoever under the terms of this Agreement until its receipt of a written resolution and/or other appropriate/applicable authorization from Contracting Member's governing body confirming Contracting Member's authority to enter into this Agreement and confirming that the Contracting Member has allocated funds for and approved contract payments to NCPA under this Agreement. 4.2 Term. The term of this Agreement shall begin on the Effective Date. This Agreement may be terminated by either Party upon at least two (2) years' prior written notice of such early termination ("Notice of Termination"). Notwithstanding the foregoing, this Agreement shall also terminate in the event that the SCPA is amended to provide that NCPA will provide Schedule Coordination Services to NCPA Members for non-NCPA Projects and, following such amendment, upon the inclusion of all Generating Facilities for which Services are provided pursuant to this Agreement into the SCPA. Upon termination of this Agreement, Contracting Member shall pay NCPA for all fees and costs, including all Stranded Costs through the effective date of termination. Upon payment of the above amounts, neither Party shall have any further obligations under this Agreement except as otherwise set forth in Section 5.7 regarding the survival of defense and indemnity obligations. Section 5. INDEMNITY AND INSURANCE 5.1 Limitation of NCPA's Liability. 5.1.1 Except as provided in this Section 5.1, NCPA shall not at any time be liable for any injury or damage occurring to Contracting Member or any other person or property from any cause whatsoever arising out of this Agreement. 5.1.2 The provisions of Section 5.1.1 shall not apply where the injury or damage occurring to Contracting Member is caused by the negligence of NCPA or of any employee, agent or contractor of NCPA, and provided that any liability under this subsection is limited to the extent of the actual coverage and coverage limits of the insurance policies described in this Section 5. 4 Operating Agreement Between NCP A and City of Palo Alto 5.1.3 Contracting Member Liable for NCPA's Deductibles and/or Self-Insured Retentions. Notwithstanding Section 5.1.2 above, Contracting Member agrees to reimburse NCPA, in a timely manner, for all deductibles and/or self-insured retentions payable for any claim, liability or damage arising out of this Agreement. . 5.2 Indemnification of NCPA. Except as specified in Section 5.1.2 above, Contracting Member shall, at its sole cost and expense, indemnify and hold harmless NCPA and all associated, affiliated, allied, member and subsidiary entities of NCPA, now existing or hereinafter created, and their respective officers, boards, commissions, employees, agents, attorneys, and contractors (hereinafter referred to as "Indemnitees"), from and against any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the Indemnitees arising out of this Agreement. 5.3 Defense of Indemnitees. In the event any action or proceeding shall be brought against the Indemnitees by reason of any matter for which the Indemnitees are indemnified hereunder, Contracting Member shall, upon reasonable prior written notice from any of the Indemnitees, at Contracting Member's sole cost and expense, resist and defend the same with legal counsel mutually selected by Indemnitee and the Contracting Member, unless mutual selection of counsel is expressly prohibited by an applicable insurance policy; provided however, that neither Indemnitee nor Contracting Member shall admit liability in any such matter or on behalf of the other without express written consent, which consent shall not be unreasonably withheld or delayed, nor enter into any compromise or settlement of any claim for which Indemnitees are indemnified hereunder without prior express written consent. The Contracting Member'S duty to defend shall begin upon receipt of a written notice identifying with specificity the allegations that give rise to this duty to defend. 5.4 Notice. The Parties shall give each other prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this Section 5. 5.5 Insurance. During the term of the Agreement and prior to beginning any work under this Agreement, NCPA shall maintain, or cause to be maintained, in full force and effect, and at its sole cost and expense, the types and limits of insurance as are annually approved by the governing Commission of NCPA. The types and limits of insurance that are applicable to this Agreement are evidenced in policy summaries attached hereto as Exhibit C. NCPA warrants and represents that the types of insurance and coverage limits shown in Exhibit C are in full force and effect and shall remain so during the term of this Agreement unless NCPA gives prior written notification (of not less than 30 days) of modification, cancellation or rescission of such coverage. 5.6 Contracting Member'S Acknowledgment of Option to Secure Additional Insurance. Contracting Member acknowledges that there are limitations on NCPA's liability to Contracting Member under this Section 5 and that the Contracting Member may need to purchase additional insurance of its 'own to cover the additional risks and the potential additional liabilities it is assuming under this Agreement. Contracting Member agrees that it will cause, with respect to any additional insurance it obtains or which is otherwise available to Contracting Member, its insurers to issue an 5 Operating Agreement Between NCPA and City of Palo Alto endorsement providing a waiver of subrogation rights as to Indemnitees. 5.7 Survival of Obligations. The defense and indemnity obligations of Section 5 shall survive the termination of this Agreement. Section 6. CHARGES & SECURITY DEPOSIT 6.1 Monthly Charges. Charges for the Services provided hereunder shall be calculated as follows: Contracting Member will be solely responsible for any and all costs incurred by NCPA attributed to NCPA's provision of Services for the Generating Facilities, including, but not limited to, NCPA's costs for providing ScheduHng Coordination Services as forecasted in NCPA's Annual Budget, and any and all CAISO charges and credits assessed to NCPA for acting as Scheduling Coordinator for the Generating Facilities. Scheduling Coordination Services costs shall be determined and allocated to Contracting Member as if the purchase power agreement for each Generating Facility were an NCPA Project. 6.2 Security Deposit. Contracting M~mber shall maintain on deposit in its General Operating Reserve Account held at NCPA the sum of zero dollar ($0.00) as security to NCPA for liabilities NCPA could incur under this Agreement. Contracting Member hereby authorizes NCPA to reserve and commit this sum in its General Operating Reserve Account for the payment of the aforementioned liabilities should some become necessary. Interest on monies held by NCPA pursuant to this section shall be credited in accordance with the then standard practices of NCPA relating to the General Operating Reserve Account. Section 7. BILLING AND PAYMENT 7.1 Monthly Payments. As part of its "All Resources Bill," prepared in the usual and ordinary course of business, NCPA shall render a monthly billing to Contracting Member for all charges incurred by Contracting Member hereunder. Contracting Member shall pay such bill within thirty (30) calendar days of the due date indicated on the bill. Any amount due on a day other than a business day, i.e., any day except a Saturday, Sunday, or a Federal Reserve Bank holiday, may be paid on the following business day. Payments shall be remitted directly to: Northern California Power Agency 651 Commerce Drive Roseville, California 95678 Attn: Accounts Receivable Except for an "Uncontrollable Force" as described in Section 9 hereof, any amount due and payable but not paid by Contracting Member within 30 days following the date of the invoice shall bear interest at the per annum prime rate (or reference rate) of the Bank of America NT & SA, then in effect, plus two percent per annum computed on a daily basis until paid. NCPA will mail all invoices within 24 hours of the invoice date thereon. 6 Operating Agreement Between NCPA and City of Palo Alto The postmark date on the envelope containing payment by check shall be used to determine timeliness of payment, except that payments received later than seven (7) days after the due date shall be declared late without regard to postmark date. An invoice coming due on a Friday, holiday, or weekend shall be due on the next following nationally recognized working day. 7.2 Billing Dispute. If all or any portion of a bill is disputed by Contracting Member, the entire amount of the bill shall be paid when due, and NCPA's Authorized Representative shall be concurrently provided written notice of the disputed amount and the basis for the dispute. NCPA shall reimburse any amount determined to have been incorrectly billed, within ten (10) days after such determination. 7.3 Total Payment. Contracting Member shall pay for the Services to be rendered by NCPA pursuant to this Agreement. Contracting Member shall not pay any additional sum for any expense or cost whatsoever incurred by NCPA in rendering Services pursuant to this Agreement unless the Agreement has been modified by a properly executed change order or amendment in accordance with this Agreement. 7.4 Payment of Taxes. NCPA is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 7.5 Payment upon Termination. In the event that Contracting Member or NCPA terminates this Agreement pursuant to Section 4, Contracting Member shall compensate NCPA for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. NCPA shall maintain adequate logs and timesheets in order to verify costs incurred to that date. Section 8. STATU S OF NCPA; FAC ILITIES AND EQUIPMENT 8.1 Independent Contractor. At all times during the term of this Agreement, NCPA shall be an independent contractor and shall not be an employee of Contracting Member. Contracting Member shall have the right to control NCPA only insofar as the results of NCPA's Services rendered pursuant to this Agreement and assignment of personnel pursuant to Section 3.4; however, otherwise Contracting Member shall not have the right to control the means by which NCPA accomplishes Services rendered pursuant to this Agreement. Notwithstanding any other agency, state, local or federal policy, rule, regulation , law, or ordinance to the contrary, NCPA and any of its employees, agents, and subcontractors providing Services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation , benefit, or any incident of employment by Contracting Member, including , but not limited to, eligibility to enroll in the California Public Employees Retirement System ("PERS") as an employee of Contracting Member and entitlement to any contribution to be paid by Contracting Member for employer contributions and/or employee contributions for PERS benefits. Section 9. UNCONTROLLABLE FORCES 9.1 Obligations of the Parties, other than those to pay money when due, shall be excused for so long as and to the extent that failure to perform such obligations is due to an 7 Operating Agreement Between NCPA and City of Palo Alto Uncontrollable Force; provided, however, that if either Party is unable to perform due to an Uncontrollable Force, such Party shall exercise due diligence to remove such inability with reasonable dispatch. Nothing contained in this Agreement shall be construed as requiring a Party to settle any strike, lockout, or labor dispute in which it may be involved, or to accept any permit, certificate, contract, or any other service agreement or authorization necessary for the performance of this Agreement which contains terms and conditions which a Party determines in its good faith judgment are unduly burdensome or otherwise unacceptable. 9.2 Each Party shall notify the other promptly, by telephone to the other Party's operating personnel and Authorized Representative identified in Section 3.2, upon becoming aware of any Uncontrollable Force which may adversely affect the performance under this Agreement. A Party shall additionally provide written notice in accordance with Section 12.8 to the other Party within 24 hours after providing . Each Party shall notify the other promptly, when an Uncontrollable Force has been remedied or no longer exists. Section 10. LEGAL REQUIREMENTS 10.1 Governing Law. The laws of the State of California shall govern this Agreement, without regard for the choice of law doctrine. 10.2 Compliance with Applicable Laws. NCPA and any subcontractors shall comply with all laws applicable to the performance ofthe Services hereunder. 10.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, NCPA and any subcontractors shall comply with all applicable rules and regulations to which Contracting Member is bound by the terms of such fiscal assistance program. 10.4 Licenses and Permits. NCPA represents and warrants to Contracting Member that NCPA and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that is legally required to practice their respective professions. NCPA represents and warrants to Contracting Member that NCPA and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. 10.5 Nondiscrimination and Equal Opportunity. NCPA shall not discriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by NCPA under this Agreement. NCPA shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of NCPA thereby. 8 Operating Agreement Between NCPA and City of Palo Alto NCPA shall include the provisions of this Subsection in any subcontract approved by Contracting Member's Authorized Representative. Section 11. KEEPING AND STATUS OF RECORDS 11.1 Records Created as Part of NCPA's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materialst in electronic or any other form, that NCPA prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of Contracting Member. NCPA hereby agrees to deliver those documents to Contracting Member upon termination of the Agreement. It is understood and agreed that the documents and other materials, including, but not limited to, those described above, prepared pursuant to this Agreement are prepared specifically for Contracting Member and are not necessarily suitable for any future or other use. Contracting Member and NCPA agree that, until final approval by Contracting Member, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both Parties, except as may otherwise be required by applicable law. 11.2 NCPA's Books and Records. NCPA shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for Services or expenditures and disbursements charged to Contracting Member under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the NCPA to this Agreement. 11.3 Inspection and Audit of Records. Any records or documents that Section 11.2 of this Agreement requires NCPA to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of Contracting Member. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of Contracting Member or as part of any audit of the Contracting Member, for a period of three (3) years after final payment under the Agreement. 11.4 Confidential Information and Disclosure. During the term of this Agreement, either party ("Disclosing Party") may disclose confidential, proprietary or trade secret information (the "Information"), to the other party ("Receiving Party"). All such Information made available in a tangible medium of expression (such as, without limitation, on paper or by means of magnetic tapes, magnetic disks or other computer media) shall be marked in a prominent location to indicate that it is the confidential, proprietary and trade secret information of Disclosing Party at the time of disclosure to Receiving Party. Receiving Party shall hold Disclosing Party's Information in confidence and shall take all reasonable steps to prevent any unauthorized possession, use, copying, transfer or disclosure of such Information. Receiving Party shall not attempt to reverse engineer or in any manner create any product or information which is similar in appearance to or based on the Information provided by Disclosing Party. Receiving Party shall not disclose Disclosing Party's Information to any person other than Receiving Party's employees, agents, contractors and subcontractors who have a need to know in connection with this Agreement. 9 Operating Agreement Between NCP A and City of Palo Alto Receiving Party's confidentiality obligations hereunder shall not apply to any portion of Disclosing Party's Information which: (a) Has become a matter of public knowledge other than through an act or omission of Receiving Party; (b) Has been made known to Receiving Party by a third party in accordance with such third party's legal rights without any restriction on disclosure; (c) Was in the possession of Receiving Party prior to the disclosure of such Information by Disclosing Party and was not acquired directly or indirectly from the other party or any person or entity in a relationship of trust and confidence with the other party with respect to such Information; (d) Receiving Party is required by law to disclose; or (e) Has been independently developed by Receiving Party from information not defined as "Information" in this Agreement, as evidenced by Receiving Party's written records. Receiving Party shall return or destroy Disclosing Party's Information (including all copies thereoD to Disclosing Party promptly upon the earliest of any termination of this Agreement or the Disclosing Party's written request. Notwithstanding the foregoing, Receiving Party may retain one copy of such Information solely for archival purposes, subject to the confidentiality provisions of this Agreement. The Parties understand that each Party is a public entity and is subject to the laws that may compel either to disclose information about the other's business. Section 12. MISCELLANEOUS PROVISIONS 12.1 Attorneys' Fees. If a Party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provisions of this Agreement, the prevailing Party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that Party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 12.2 Venue. In the event that either party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Placer or in the United States District Court for the Eastern District of California. 12.3 Severability. If any provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid, void or unenforceable, or if any provision of this Agreement is rendered invalid or unenforceable by federal or state statute or regulation, but the remaining portions of the Agreement can be enforced without failure of material consideration to any Party, then the remaining provisions shall continue in full force and effect. To that end, this Agreement is declared to be severable. Provided, however, that in the event any provision is declared to be invalid, void or unenforceable, either Party may terminate this Agreement upon ten (10) days' written notice given within five (5) business days of receipt of notice of final entry of judgment. 12.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 10 Operating Agreement Between NCPA and City of Palo Alto 12.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties. 12.6 Use of Recycled Products. NCPA shall endeavor to prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. 12.7 Conflict of Interest. NCPA shall not employ any Contracting Member official or employee in the work performed pursuant to this Agreement. No officer or employee of Contracting Member shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq. 12.8 Notices. Unless this Agreement requires otherwise, any notice, demand or request provided for in this Agreement, or served, given or made shall become effective when delivered in person, or sent by registered or certified first class mail, to the persons specified below: For NCPA: Dave Dockham Assistant General Manager -Power Management Northern California Power Agency 651 Commerce Drive Roseville, CA 95678 With a copy to: Michael F. Dean General Counsel, Northern California Power Agency c/o Meyers Nave 555 Capitol Mall, Suite 1200 Sacramento, CA 95814 For Contracting Member: Valerie Fong Director of Utilities City of Palo Alto 250 Hamilton Avenue Palo Alto, CA 94301 With a copy to: Grant M. W. Kolling Senior Asst. City Attorney, City of Palo Alto 250 Hamilton Avenue Palo Alto, CA 94301 11 Operating Agreement Between NCPA and City of Palo Alto When-ever it is required, permitted, or desired in this Agreement that written notice or demand be given by any Party to any other Party, such notice or demand may be either personally served or sent by United States Mail, or facsimile. Notice shall be deemed to have been given when personally served, when deposited in the United States Mail, certified or registered with postage prepaid and properly addressed, or when transmitted by facsimile; provided, however, notices delivered by facsimile shall only be effective if delivered during regular business hours on a day that is considered a regular business day for NCPA by the involved Parties. 12.9 Integration; Incorporation. This Agreement, including all the exhibits attached hereto, represents the entire and integrated agreement between Contracting Member and NCPA relating to the subject matter of this Agreement, and supersedes all prior negotiations, representations, or agreements, either written or oral. All exhibits attached hereto are incorporated by reference herein. 12.10 Dispute Resolution. If any dispute arises between the Parties that cannot be settled after engaging in good faith negotiations, Contracting Member and NCPA agree to resolve the dispute in accordance with the following: 12.10.1 Each Party shall designate a senior management or executive level representative to negotiate any dispute. 12.10.2 The representatives shall attempt, through good faith negotiations, to resolve the dispute by any means within their authority. 12.10.3 If the issue remains unresolved after ninety (90) days of good faith negotiations, despite having used their best efforts to do so, either Party may pursue whatever other remedies may be available to it. 12.10.4 This informal resolution process is not intended to nor shall be construed to change the time periods for filing a claim or action specified by Government Code § 900, et seq. 12.11 Other Agreements. This Agreement is not intended to modify or change any other agreement between any of the Parties, individually or collectively. 12.12 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. 12.13 Obligations Several. The duties, obligations and liabilities of the Parties are intended to be several and not joint or collective. Nothing contained in this Agreement shall ever be construed to create an association, trust, partnership or joint venture or to impose a trust or partnership duty, obligation or liability on or with regard to either Party. Each Party shall be individually and severally liable for its own obligations under this Agreement. 12.14 Effect of Section Headings. Section headings and subheadings appearing in this Agreement are inserted for convenience only and shall not be construed as interpretation of text. 12 Operating Agreement Between NCPA and City ofPaio Alto 12.15 Authority of Signatories. The signatories hereby represent that they have been appropriately authorized to execute this Agreement on behalf of the Party for whom they sign. 12.16 Amendments. 12.16.1 Deemed Approved Amendments. It is understood and agreed by the Parties that any NCPA Commission approved update to the then current Annual Budget rates and charges related to Services to be performed under this Agreement is deemed an approved amendment to this Agreement. 12.16.2 Addition or Removal of Generating Facilities. The Parties may, by a writing signed by the Authorized Representative of NCPAand the Authorized Representative of Contracting Member and without the approval of their respective governing boards, add or remove Generating Facilities listed in Exhibit B for which Contracting Member has requested the provision of Services. 12.16.3 Authorized Representatives and Addresses for Notice. Any Party may, by providing written notice to the other Party, modify either the identity or address for its Authorized Representative as identified in Section 3.2, or may amend its address for notice as provided in Section 12.8. 12.16.4 Amendments in General. Except as otherwise provided in this Section 12.16, the Parties may amend this Agreement only by a writing signed by all the Parties following each Party's receipt of written resolution/authorization from their governing bodies. 12.17 No Third Party Beneficiaries. Nothing contained in this Agreement is intended by the Parties, nor shall any provision of this Agreement be deemed or construed by the Parties or by any third person, to be for the benefit of any third party, nor shall any third party have any right to enforce any provision of this Agreement or be entitled to damages for any breach by the Parties of any of the provisions of this Agreement. 13 Operating Agreement Between NCPA and City of Palo Alto The Parties have executed this Agreement as of the Effective Date. Northern California Power Agency Contracting Member --City of Palo Alto JAMES H. POPE, General Manager Attest: Attest: AID Assistant Secretary of the Commission NamelTitle: Approved as to Form: Approved as to Form: General Counsel s~ 14 Operating Agreement Between NCPA and City of Palo Alto EXHIBIT A SCOPE OF SERVICES Contracting Member has entered into power purchase agreements as buyer to take delivery of energy and capacity from the non-NCPA Generating Facilities listed in Exhibit B. To enable the scheduling and'settlement of energy and capacity from the Generating Facilities, Contracting Member requires that an entity be designated on its behalf as Scheduling Coordinator with the CAISO. NCPA and Contracting Member, along with other NCPA Members, are parties to the Scheduling Coordination Program Agreement dated as of August 28,2002 ("the SCPA"), as the same has been amended or may hereafter be amended, by which NCPA provides Scheduling Coordination Services with respect to NCPA Projects to those NCPA Members which have executed the SCPA. In accordance with the terms of this Agreement, Contracting Member has requested, and NCPA has agreed to provide, Scheduling Coordination Services for the Generating Facilities. NCPA shall act as Scheduling Coordinator and provide Scheduling Coordination Services for the Generating Facilities in accordance with the applicable CAISO tariffs and pursuant to the terms of the SCPA, as if the power purchase agreements for each Generating Facility were an NCPA Project. NCPA's agreement to provide Services to Contracting Member is based on the understanding that the Generating Facilities will operate as resources within the CAISO balancing authority area, and will be scheduled and settled through the CAISO markets. If one or more Generating Facilities are not operated as resources within the CAISO balancing authority area, or are not scheduled and settled through the CAISO markets, the Services provided in this Exhibit A will require modification to identify and include the additional requirem~nts that may be required to provide Scheduling Coordination Services for the impacted Generating Facilities or NCPA may remove such Generating Facilities from this Agreement upon sixty (60) days prior written notice. 15 Operating Agreement Between NCPA and City of Palo Alto EXHIBIT B LIST OF GENERATING FACILTIES The Generating Facilities for which NCPA will provide Services are listed in this Exhibit B. • Santa Cruz Landfill Generating Plant o Resource 10: GRNVL Y _7 _SCLANO o PGA Name: Ameresco Santa Cruz Energy, LLC o Resource Capacity : 3.04 MW o COO: February 2, 2006 • Keller Canyon Landfill Generating Plant o CAISO Resource 10: KIRKER_7 _KELCYN o PGA Name : Ameresco Keller Canyon, LLC o Resource Capacity: 3.56 MW o COO: August 1, 2009 • Ox Mountain Landfill Generating Plant o CAISO Resource 10: OXMTN_6_LNOFIL o PGA Name: Ameresco Half Moon Bay, LLC o Resource Capacity: 10.62 o COO: April 1, 2009 • Johnson Canyon Landfill Generating Plant o CAISO Resource 10: GONZLS_6_UNIT o PGA Name: Ameresco Johnson Canyon, LLC o Resource Capacity: 1.50 MW o Estimated COO: May 1, 2013 • San Joaquin Landfill Generating Plant o CAISO Resource 10: Pending o PGA Name: Ameresco San Joaquin, LLC o Resource Capacity: 6.20 MW o Estimated COO: September 1, 2013 The Generating Facility characteristics, such as resource capacity , may change over the course of time, and such changes will not reduce or alter Contracting Member's obligations as set forth in this Agreement. Provided, however, that Contracting Member shall provide written notice of the change in characteristics to NCPA. 16 Operating Agreement Between NCPA and City of Palo Alto , , EXHIBIT C NCPA SUMMARIES OF LIABILITY INSURANCE Attached are the following summaries of insurance coverage, as applicable to the Services being provided by NCPA hereunder: 1. Workers' Compensation & Employer's Liability 2. Automobile Liability & Physical Damage 3. Excess Liability 2050354.1 17 Operating Agreement Between NCP A and City of Palo Alto