HomeMy WebLinkAboutStaff Report 454-07City of Palo Alto
City Manager’s Report
TO:HONORABLE CITY COUNCIL
FROM:CITY MANAGER DEPARTMENT: UTILITIES
DATE:DECEMBER 17, 2007 CMR: 454.07
SUBJECT:ADOPTION OF A RESOLUTION AMENDING RESOLUTION
NO. 8632 AND APPROVING THE AMENDED NORTHERN
CALIFORNIA POWER AGENCY GREEN POWER PROJECT
(NGPP) THIRD PHASE AGREEMENT FOR THE PURCHASE
OF RENEWABLE ENERGY OF UP TO 15 AVERAGE
MEGAWATTS OF ENERGY OVER 25 YEARSAT AN
ESTIMATED COST OF UP TO $388 MILLION(IN 2008
DOLLARS)
RECOMMENDATION
Staff recommends that the City Council adopt the resolution amending Resolution No.8632 and
approving the Amended Northern California Power Agency ~CPA) Green Power Project
(NGPP) Third Phase Agreement (Amended NGPP Agreement) for the purchase of renewable
electricity of up to 15 average megawatts (aMW) of energy. Additionally, for this agreement,
staff recommends Council waive the investment-grade credit rating requirement under section
2.30.340(d) of the Palo Alto Municipal Code.
BACKGROUND
In 2002, the Council adopted a renewable resource portfolio standard with the objective of
meeting 20 percent of the City’s electrical load with renewable resources by year 2015, while
ensuring the retail rate impact does not exceed 0.5 cents per kilowatt-hour (C/kWh) on average -
or approximately 5 percent of the average retail rate premium (CMR: 398:02). Since then, the
City has made considerable progress in reaching the target well ahead of schedule.
CMR: 454.07 Page 1 of 5
In March 2007, Council advanced and increased the renewable portfolio standard with a target to
meet 20 percent of City loads with renewable resources by 2008 and 33 percent by year 2015.
The new target was to be achieved while maintaining the retail rate impact measure at 0.5C/kWh
(CMR: 158:07). It should be noted that the City’s renewable portfolio standard measure
excludes large hydro-electric resources that account for approximately 50 percent of the City’s
electric supply in an average hydro year.
In July 2006, the Council approved the original NGPP Third Phase Agreement (2006 NGPP
Agreement) to pursue renewable resource projects jointly .with other municipal agencies in
Northern California. Under terms of the 2006 NGPP Agreement, Palo Alto had the potential to
acquire renewable resources up to 131 million kWh per year (which is equivalent to 15 average
MW) to meet approximately 13 percent of the City load (CMR: 296:06). The Council approved
this agreement to pursue potential renewable resource projects with a wholesale purchase price
cap of 7C/kWh and a total purchase cost cap of $230 million (in 2006 dollars) over 25 years
(Attachment C).
DISCUSSION
The City made considerable renewable resource commitments in 2004 and 2005 at prices of 5 to
6 C/kWh, and expects to reach the 20 percent renewable portfolio goal by 2008 with minimal
impact on retail rates. However, after the initial renewable purchases were made, new renewable
resource supply prices increased by more than 50 percent. During 2006 and 2007, the City and
NCPA issued several solicitations for additional renewable supplies to achieve the 33 percent
portfolio target, but have not found adequate supplies at prices less than 7 C/kWh to make long-
term commitments.
A number of state legislative actions in 2006 (SB 107, AB 32) increased public awareness of the
merits of renewable resource supplies and increased the demand for renewable energy. Many of
the good renewable resource sites with easy access to the transmission grid in California have
already been developed and committed. The cost of wind turbines increased with demand,
making wind power from the remaining marginal wind sites near transmission in California more
expensive. All of these factors have driven the average price of new renewable resource
development above the 7 C/kwh price cap embedded in the 2006 NGPP Agreement.
In amending the 2006 NGPP Agreement, the NGPP Oversight Committee members decided to
remove the price cap and provide discretion to governing bodies of member cities to impose their
own price caps, if desired. The Amended NGPP Agreement also incorporated a number of
additional changes to provide flexibility for NGPP members to "opt-out" of individual resources
during the acquisition process. A brief summary of the changes incorporated in the Amended
NGPP Agreement is outlined below.
1)Section 1.1.20, Price - Deleted the "7 C/kwh" average procurement price cap concept
and replaced it with maximum contract price to be "applicable lawful ceiling price." The
rationale for this change is based on the fact that the green market continues to change
rapidly and embedding a price cap in the NGPP Agreement itself will be cumbersome to
manage. It also allows member governing bodies the flexibility to impose a price cap
appropriate for each member, if they so choose.
CMR: 454.07 Page 2 of 5
2)Sections 1.1.36, 3.3.1, 3.4 and 6.2.c.iii, Opt-out - Each participant, under the Amended
NGPP Agreement will be able to opt-out of any specific resource at two points in the
acquisition process. This new flexibility allows participants to determine their level of
participation in a resource based on their portfolio preference for any reason, including
type of technology, geographical location, price, length of contract, etc.
Section 5, General Accounting Language - Specific language related to issues such as the
Security Account were modified to more closely reflect current operating practices and to
be consistent with other NCPA agreements. The Amended NGPP Agreement also
incorporates mechanisms necessary to account for the new opt-out provisions mentioned
above.
4)Development/Build Opportunities - Language was added to help clarify activities related
to the development or building of a resource by NCPA itself versus a Purchase Power
Agreement (PPA) type of resource commitment.
The Amended NGPP Agreement incorporating these changes has been reviewed by staff and
approved by the City Attorney’s Office (Attachment B).
Council Determination of Maximum Contract Price and Purchase Cost for Palo Alto
Staff recommends that Council approve an increase in total purchase cost cap under the
Amended NGPP Agreement from $230 million (2006 dollars) to $388 million (2008 dollars)
over 25 years. Staff also recommends flexibility to make purchases at prices of up to 25C/kWh
(nominal), as long as the impact on retail rates is within the Council approved limit of 0.5C/kWh.
The market price for base load fossil fuel driven electricity is between 7 and 8C/kWh. At
present, the average market price for renewable resource contracts varies between 8C/kWh and
25C/kWh, with wind and landfill projects being the lower cost resources and solar photo-voltaic
projects being more expensive. The difference between the fossil fired and renewable resources
shows a premium commanded by renewable resource supplies ranging from 1¢ and 17C/kWh
which is well above levels seen just two years ago.
Based on market conditions, Palo Alto may have to pay a significant premium for renewable
supplies. However, staff still believes sufficient resources could be acquired to meet Palo Alto’s
33 percent by 2015 target within the Council- approved retail rate impact measure of 0.5C/kWh.
The revenue from 0.5C/kWh collected on all retail sales is adequate to cover an annual renewable
purchase cost premium of up to $5 million. Since the first 20 percent of renewable supplies were
procured with no retail rate impact, the average premium the City will be able to pay for the
remaining 13 percent renewable energy is approximately 3.8C/kWh. The total allowed cost for
131 million kWh per year of new renewable supplies would be $15.5 million per year, or $388
million over 25 years.
Potential suppliers of renewable resources under the Amended NGPP Agreement could be small
companies that may not have credit rating from Moody’s or Standard and Poor’s. Since energy
deliveries will be tied to specific generators and specific locations, as opposed to market
CMR: 454.07 Page 3 of 5
contracts whose deliveries are often backed by financial strength or collateral rather than a
physical asset, staff recommends that Council waive the investment-grade credit requirement for
public agency contracts under Section 2.20.340 (d) of the Palo Alto Municipal Code. This
conforms to Council action on prior renewable resource contracts (CMR: 461:04). This waiver
will be evaluated on a case-by-case basis and will be provided only for small companies that do
not have credit ratings. Individual contracts will be reviewed by Utilities staff, the Energy Risk
Manager and the Utilities Risk Oversight Committee to determine if the combination of value,
price, terms, credit worthiness of provider, and any credit assurances warrant Palo Alto’s
participation.
RESOURCE IMPACT
The cost of renewable supplies under the Amended NGPP Agreement could be up to $388
million (in 2008 dollars) or $523 million in nominal dollars over 25 years. The incrementa!
retail rate impact could be up to 0.5C/kWh.
POLICY IMPLICATIONS
Approval of this resolution allows the City to participate in the Amended NGPP to purchase
renewable energy and thereby is consistent with Council Top Four Priority of Climate
Protection. Participating in the Amended NGPP is also consistent with the following City
policies and guidelines:
o
The Council-approved Utilities Strategic Plan with regard to employing balanced
environmental solutions;
The Utilities Energy Risk Management Policies;
The rate impact limits and the renewable portfolio targets in LEAP Guideline #6;
The portfolio diversification goals in LEAP Guideline #3; and
The City’s Sustainability Policy Statement, adopted April 2, 2001 (CMR 175:01), the
Green Government Pledge, adopted July 19, 1999 (CMR 284:99), the US Mayors’
Climate Protection Agreement, and elements of the Comprehensive Plan, specifically:
a. GOAL N-9: A clean, efficient, competitively-priced energy supply that makes use of
cost-effective renewable resources.
b. POLICY N-44: Maintain Palo Alto’s long-term supply of electricity and natural gas
while addressing environmental and economic concerns.
c. POLICY N-48: Encourage the appropriate use of alternative energy technologies.
ENVIRONMENTAL REVIEW
Execution of the Amended NGPP Agreement does not meet the definition of a project, pursuant
to section 21065 of the California Environmental Quality Act (CEQA). However, the City and
other participating members intend to receive output from projects that will constitute a project
for the purposes of CEQA. Project developers will be responsible for acquiring necessary
environmental reviews and permits on projects to be developed.
CMR: 454.07 Page 4 of 5
ATTACHMENTS
A: City Resolution approving Amended NGPP Agreement.
B: Amended NGPP Agreement
C: City Resolution approving 2006 NGPP Agreement.
D: NCPA resolution approving Amended NGPP Agreement
PREPARED BY:
DEPARTMENT APPROVAL:
CITY MANAGER APPROVAL:
TOM KABAT
Senior Resource Originator
VAL~I~E .~ONG
Director of Utlhtles
EMILY I~ARRISON
Assistant City Manager
CMR: 454.07 Page 5 of 5
***NOT YET APPROVED**:"
RESOLUTION NO.
RESOLUTION OF THE COUNCIL OF THE CITY OF PALO ALTO
AMENDING RESOLUTION NO. 8632 AND APPROVING THE
AMENDED NORTHERN CALIFORNIA POWER AGENCY GREEN
POWER PROJECT (NGPP) THIRD PHASE AGREEMENT FOR THE
PURCHASE OF RENEWABLE ENERGY OF LIP TO 15 AVERAGE
MEGAWATI’S OF ENERGY OVER 25 YEARS ATAN
ESTIMATED COST OF UP TO $388 MILLION
(IN 2008 DOLLARS)
WHEREAS, the City of Palo Alto ("City"), a municipal utility and a chartered city,
is a member of the Northern California Power Agency ("NCPA"); and
WHEREAS, the City, along with other members of NCPA, desire to collectively
contract for or develop renewable energy resources to meet customer electrical loads; and
WHEREAS, the City, along with other members of NCPA, had previously enacted
Resolution 8632 approving the Northern California Power Agency Green Power Project (NGPP)
Third Phase Agreement and now desires to amend said NGPP Third Phase Agreement; and
WHEREAS, the City is ready, willing and able to purchase such renewable energy
supplies through NCPA power purchase agreements with suppliers; and
WHEREAS, NCPA is ready, willing and able to enter into power purchase
agreements on behalf of its participating members, and it will efficiently and effectively assist in
meeting its participating members’ goals; and
WHEREAS, the City entered into the original 2006 NGPP Third Phase Agreement to
meet its renewable power goals, reduce reliance on fossil fuels and their associated fuel price
volatilities, assist the State of California in meeting its renewable energy goals, lower delivery risk
by spreading energy deliveries across multiple projects, avoid duplication of efforts, and achieve
economies of scale; and
WHEREAS, changes in the green power market have hindered the acquisition of
green power resources; and
WHEREAS, the NCPA Commission on November 29, 2007 approved the Modified
NGPP Third Phase Agreement which allows NCPA Member participants additional flexibility to
set their own price caps and procurement methods; and
WHEREAS, the Amended NGPP Third Phase Agreement will better enable the City
through NCPA to negotiate and enter into power purchase agreements and investigate and pursue
the acquisition of physical assets to generate electricity using renewable resources under market
conditions that have changed from the time of the original NGPP Third Phase Agreement.
071204 syn 6050291
3_
* **NOT YET APPROVED***
NOW, THEREFORE, the Council of the City of Palo Alto does hereby RESOLVE
as follows:
SECTION 1. The Council hereby approves the Amended Northern California Power
Agency Green Power Project Third Phase Agreement, including the delegation of authority to
amend exhibits to the Agreement, as set forth in section 10.5 of the Agreement, and also
approves the City of Palo Alto’s participation in the Agreement for the purchase of renewable
energy of up to 15 .average megawatts of energy, within an average procurement price cap of
$118/MWh (in 2008 dollars) and a maximum contract price of $250/MWh for any single
resource added to the NGPP. The total cost of renewable energy purchases under this Agreement
over 25 years could be up to $388 million (in 2008 dollars) or $523 million (in nominal dollars)
over 25 years.
SECTION 2. With respect to the Agreement, the Council hereby waives the
creditworthiness terms and conditions requirements of the Palo Alto Municipal Code section
2.30.340(d).
SECTION 3. The Council finds that the adoption of this resolution does not meet
the definition of a project under Section 21065 of the California Environmental Quality Act and,
therefore, no environmental assessment is required.
INTRODUCED AND PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:APPROVED:
City Clerk Mayor
APPROVED AS TO FORM:
City Manager
Deputy City Attorney
Director of Utilities
071204syn 6050291
2
Director of Administrative
Services
AMENDED
NCPA GREEN POWER PROJECT
THIRD PHASE AGREEMENT
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
1
TABLE OF CONTENTS
SECTION
!.!
1.2
SECTION
1.DEFINITIONS ................................................................................................................6
DEFIaNITtONS ................................................................................................................................6
RULES OF INTERPRETATION ......................................................................................................16
2.EFFECTIVE DATE OF AGREEMENT ......................................................................17
SECTION
3,1
3.3
3.4
3.5
3,6
3,8
SECTION
3,PROCUREMENT PROCESS ......................................................................................18
REQUEST FOR PROPOSALS AND PPA(S) ....................................................................................18
PARTICWANT APPROVAL OF PROCUREMENT PROCESS ............................................................19
APPROVAL OF NGPP RESOURCES ............................................................................................19
ADDITIONAL PRO~SIONS RELATED TO DEVELOPMENT OPPORTU~-NITIES ...............................21
DELIVERY OF ELECTRICITY / ALLOCATION OF ENVERONMENTAL ATTRIBUTES ......................22
CAPACITY ENTITLEMENT ..........................................................................................................22
PAYMENTS TO COUNTERPARTIE5 ..............................................................................................23
REMOVAL OF NGPP RESOURCES FROM NGPP ........................................................................23
4.COOPE1L4TION AND FURTHER ASSURANCES ...............................................23
SECTION
5.1
5,2
5,3
5.4
5,5
5,6
5.7
5.8
SECTION
5.BUDGET, OPERATING FUND, INVOICING .......................................................24
"NGPP COST ALLOCATION". .....................................................................................................24
PAYMENT OF NGPP PROJECT COSTS ........................................................................................24
APPLICABLE PERCENTAGES OF NGPP PROJECT COSTS AND BUDGETS ...................................25
BUDGETS AND BUDGET SETTLEMENTS .....................................................................................25
SECURrP~ ACCOUNT .................................................................................................................26
INVOICING .................................................................................................................................29
AUDITING AND SETFLEMENT DATA .........................................................................................30
REVENUE COVENANT ...............................................................................................................31
6.ADMINISTRATION OF AGREEMENT .................................................................32
6.1
6.2
6,3
6.4
GENERAL ...................................................................................................................................32
ACTION BY PARTICIPANTS ........................................................................................................32
NGPP OVERSIGHT COMivfIXTEE ...............................................................................................34
PARTICIPANT REPRESENTATIVES ..............................................................................................34
SECTION 7.PARTICIPATION PERCENTAGE; ADMISSION AND WITHDRAWAL OF
PARTICIPANTS ........................................................................................................................................35
7.1
7,2
7,3
PARTICIPATfON PERCENTAGES AND RESOURCE ALLOCATION PERCENTAGES .......................35
ADMISSION OF NEW PARTICIPANTS .........................................................................................35
WITHDRAWAL OF PARTICIPANTS .............................................................................................36
SECTION 8.TERM AND TERMINATION ....................................................................................37
SECTION 9.DEFAULT AND REMEDIES ......................................................................................38
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
2
9.l
9.2
9.3
9.4
9.3
SECTION
t0.1
10.2
10.3
10.4
10.5
10.6
I0.7
i0.8
10.9
10.10
10.11
!0.12
10.13
EVENTS OF DEFAULT .................................................................................................................3 8
CURE OF AN EVENT OF DEFAULT ..............................................................................................39
PARTICEPATION RIGHTS OF DEFAULTING PARTY ....................................................................39
REMEDIES IN THE EVENT OF DEFAULT .....................................................................................40
EFFECT OF TERMINATION OR SUSPENSION ...............................................................................42
10.MISCELLANEOUS .................................................................................................45
CONFIDENTIALITY .....................................................................................................................45
INDEMNIFICATION AND HOLD HARMLESS ..............................................................................45
SEVERAL LLABILIT~ES .................................................................................................................46
NO CONSEQUENTIAL D~GES ..............................................................................................46
AMEND~NTS ...........................................................................................................................47
SEVE~Bm~ ............................................................................................................................48
GOVE~NG LAW ..................................................................................................2 ...................48
HEAD~GS .................................................................................................................................48
NOTICES .....................................................................................................................................48
WA~ OF A~O~ ......................................................................................................49
COUN~TS .........................................................................................................................49
ASSIGN~ .............................................................................................................................50
LIST OF E~S ........................................................................................................................50
Exhibits
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Participation Percentages and Resource Allocation Percentages
Form of Resource Schedule
Approved Resource Schedules
Intentionally Omitted
Intentionally Omitted
Form of Request for Proposals
Form of Power Purchase Agreement
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
3
NCPA GREEN POWER PROJECT AMENDED THIRD PHASE
AGREEMENT
This Amended Third Phase Agreement (hereinafter "Amended Agreement") is
entered into on the Effective Date by and between the NORTHERN
CALIFORNIA POWER AGENCY, a joint powers agency, created pursuant to the
laws of the State of California (hereinafter "NCPA") and its members executing
this Amended Agreement as reflected on Exhibit A hereto (hereinafter
"Participants") for the purpose of procuring electrical power from NCPA’s Green
Power Project (hereinafter "’NGPP’). NCPA and the Participants are referred to
herein individually as a "Party" and collectively as the "Parties."
RECITALS
A. NCPA and the Participants are interested in purchasing additional
electricity generation from renewable resources for the benefit of Participants’
customers.
B. By purchasing electricity generated from renewable resources, NCPA and
the Participants will help reduce the production of many environmental
pollutants, assist in reducing relianc6 on fossil fuels, assist in stabilizing
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
4
the Participants" electric retail rates, and aid the State of California in
reaching its renewable energy goals.
C. This Amended Agreement will better enable NCPA to negotiate and enter
into contracts to purchase electricity from renewable resources and
investigate the acquisition of physical assets to generate electricity using
renewable resources under market conditions that have changed from the
time of the original Green Power Project.
D. Through this Amended Agreement each Participant also seeks increased
flexibility to choose and integrate any and all renewable resource
acquisitions to their own unique needs arising from each Participants load
profile, existing renewable energy portfolio, and transmission constraints.
E. The Participants also desire to obligate and enable NCPA to conduct the
foregoing activities, and deliver electricity from renewable resources to
the Participants, and to obligate and enable the Participants to take
delivery of and pay for such electricity and to investigate the acquisition
of physical assets or the development of such to deliver electricity and to
pay NCPA for the costs of undertaking the foregoing activities.
NOW THEREFORE, in consideration of the foregoing and the mutual
promises and covenants hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree and intend to be legally bound as follows:
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
5
Section 1.Definitions.
1.1 Definitions.
Whenever used in this Amended Agreement (including the Recitals hereto), the
following terms shall have the following respective meanings:
1.1.1
Section 7.3.1.
1.1.2
"Adjusting Participant" has the meaning set forth in
"Amended Agreement" means this Amended Third
Phase Member Agreement To Purchase Power From The Northern California
Power Agency Procured From The NCPA Green Power Project, including all
Exhibits, attached hereto and incorporated by reference, as the same may be
amended from time to time in accordance with the terms and conditions hereof.
1.1.3 "AIlocating Participant" has the meaning set forth in
Section 7.2.
1.1.4 "Associate Member" means an associate member of
NCPA admitted to NCPA in accordance with Article IV, Section 7 of the Joint
Powers Agreement.
1.1.5 "Average Capacity" in MW means the annual
quantity of electricity in MWh forecast to be delivered from all NGPP Resources
including the Proposed Resource calculated at the time a decision is made by
NCPA with respect to whether to approve the Proposed Resource in accordance
with Seckion 3.4 divided by the number of hours in the year.
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
6
1.1.6 "Business Day" means any day except a Saturday,
Sunday, or a Federal Reserve Bank holiday. A Business Day shall open at 8:00
a.m. and close at 5:00 p.m. local time.
1.1.7 "Claims" has the meaning set forth in Section 10.2.
1.1.8 "Commission" means the NCPA Commission.
1.1.9 "Constitutive Documents" means, with respect to
NCPA, the Joint Powers Agreement and any resolutions or bylaws adopted
thereunder, and with respect to each Participant, the California Government
Code and other statutory provisions applicable to such Participant, any
applicable agreements, charters, contracts or other documents concerning the
formation, operation or decision making of such Participant, including, if
applicabIe, its City Charter, and any codes, ordinances, bylaws, and resolutions
adopted by such Participant’s governing body.
1.1.10 "Contract Price" means the actual contract price for
procuring electricity from a Proposed Resource at the time a Power Purchase
Agreement is executed.
1.1.11
Section 9.1.
1.1.12
"Defaulting Party" has the meaning set forth in
"Effective Date" has the meaning set forth in Section
1.1.13 "Electric System" means, with respect to each
Participant, all properties and assets, real and personal, tangible and intangible,
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
7
of
generation, transmission, transformation, distribution and sale
capacity and energT-, or the utilization of such, including all
the Participant now or hereafter existing, used for or pertaining to the
of electric
additions,
extensions, expansions, improvements and betterments thereto and equipment
thereof; provided, however, that to the extent the Participant is not the sole
owner of an asset or property or to the extent that an asset or property is used in
part for the above described purposes, only the Participant’s ownership interest
in such asset or property or only the part of the asset or property used for electric
purposes shall be considered to be part of its EIectric System.
1.1.14 "Eligible Renewable Resource" means an electric
power generator (i) producing power from one or more of the following fuels:
Biomass, Biodiesel, Fuel cells using renewable fuels, Digester gas, Geothermal,
Landfill gas, Municipal solid waste conversion, Ocean wave, Ocean thermal,
Tidal current, Photovoltaic, Small hydroelectric (50 megawatts or iess), Solar
thermaI, Wind, or other fueIs and technologies as may be deleted from or added
to this Iist by the Participants, pursuant to Section 6.2, from time to time, and any
additions or enhancements to a facility using such fuels and technology and (ii)
which are (a) located within California, (b) are located outside of California and
have their first point of interconnection with the Western Electricity
Coordinating Council transmission system located within California or (c) are
located outside of California but deliver electricity to a substation or node within
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
8
California, or (d) as otherwise determined by the Particil~ants pursuant to Section
1.1.15 "Environmental Attributes" means any and all
credits, benefits, emissions reductions, offsets, and allowances, howsoever
entitled, directly aft~ibutable to the generation from NGPP Resources.
Environmental Attributes include but are not limited to: (1) any avoided
emissions of pollutants to the air, soil or water such as sulfur oxides (SOx),
nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (2) any
avoided emissions of carbon dioxide (CO2), methane (CH4) and other
greenhouse gases (GHGs) that have been determined by the United Nations
Intergovernmental Panel on Climate Change to contribute to the actual or
potential threat of altering the Earth’s climate by trapping heat in the
atmosphere; and (3) the reporting rights to these avoided emissions such as
Green Tag Reporting Rights. Environmental Attributes do not include (~1) any
energy, capacity, reliability or other power attributes from bIGPP Resources, (2)
production tax credits associated with the construction or operation of the
energy projects and other financial incentives in the form of credits, reductions,
or allowances associated with a project that are applicable to a state or federal
income taxation obligation, (3) fuel-related subsidies or "tipping fees" that may
be paid to Seller to accept certain fuels, or local subsidies received by the
generator for the destruction of particular pre-existing pollutants or the
promotion of local environmental benefits, or (4) emission reduction credits
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
9
encumbered or used by NGPP Resources for compliance with loca!, state, or
federal operating and,/or air quality permits.
I.I.16 "Event of ]Default" has the meaning set forth in
Section 9.1.
I.I.17 "Forecast Price" means the estimated Contract Price
for procuring electricity from a Proposed Resource, calculated at the tLme a
decision is made with respect to whether to approve or Opt-Out of participating
in the Proposed Resource.
1.1.1g "Joint Powers Agreement" means that certain
Northern California Power Agency Joint Power Agreement by and among the
Members as the same may be amended from time to time.
1.1.19 "Maximum Average Capacity" means the sum of the
Participant elections expressed as average annual M~Vs labeled as "Total Annual
aMW" in Exhibit A.
1.1.20 "Maximum Contract Frice" means the applicable
lawful ceiling price for capacity and/or energy at the time a purchase of an
Eligible Renewable Resource is consummated; currently, the CAISO Bid Cap for
its real-time imbalance energy market as approved by the Federal Energy
Regulatory Commission
1.1.21
Member of NCPA.
"Member" means any Voting Member or Associate
1. 1.22 "MW" means megawatt.
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
10
hereto.
1.1.23
1.1.24
"NfPgh" means megawatt-hour.
"NCPA" has the meaning set forth in the preamble
1.1.25 "NCPA Annual Budget" means the budget for the
ensuing Budget Year adopted by the Commission, as it may be amended from
time to time.
1.1.26 "NGPP" means the NCPA Green Power Project,
which consists of the pool of NGPP Resources.
1.1.27 "NGPP Oversight Committee" means a committee of
Participant Representatives established at the NCPA General Manager’s
discretion, for the purpose of offering input and recommendations to NCPA Staff
or the General Manager with respect to matters pertaining to this Amended
Agreement pursuant to the provisions of Section 6.3.
1.1.28 "NGPP Project Budget" means the budget created by
NCPA to estimate the annual NGPP Project Costs, having the following budget
subcategories:
(ii)
"NGPP Program Budget" means the budget created
by NCPA to estimate the annual, non-bypassable
NGPP Program Costs
"NGPP Development Budget" means the budget(s)
created by NCPA to estimate the NGPP Development
Costs to be incurred prior to the time of execution of a
Third Phase Agreement to pursue the development of
a Proposed Resource for those Participants who have
not exercised their initial Opt-Out right.
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
11
(iii)"NGPP PPA Budget" means the budget(s) created by
NCPA to estimate the NGPP PPA Costs to be
incurred to finalize the acquisition of a Proposed
Resource through a Power Purchase Agreement for
those Participants who have not exercised their Opt-
Out right.
1.1.29 "NGPP Project Costs" means any and all costs,
internal and external, direct and indirect, incurred by NCPA in connection with
performing its obligations under this Amended Agreement, incIuding NGFP
Prowam Costs, NGPP PPA Costs, and NGPP Development Costs.
(i)
(ii)
"NGPP Program Costs" means all costs incurred by
NCPA prior to the time Participants are afforded an
oppor~nity to Opt-Out of the procurement or
development of an Eligible Renewable Resource,
including but not limited to costs incurred to issue
Requests for Proposals, and the investigation and
evaluation thereof, and preparation of corresponding
Preliminary Resource Summaries.
"NGPP PPA Costs" means all costs incurred by
NCPA to acquire and pay for an Eligible Renewable
Resource through a Power Purchase Agreement,
including but not limited to negotiating and
implementing Power Purchase Agreements, provided
that such costs arise after Participants have been
afforded a chance to exercise their Opt-Out rights in
accordance with Section 3.4.
(iii)"NGPP Development Costs" means all costs,
incurred by NCPA to deveIop an EIigible Renewable
Resource, including but not limited to further
investigation, preliminary arrangements for
financing, and the provision recommendations
regarding the development, construction, installation,
operation, ownership and maintenance of the Eligible
Renewable Resources, provided that such costs arise
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
12
after Participants have been afforded a chance to
exercise their Opt-Out rights in accordance with
Section 3.4 and prior to the Participants approval of a
Third Phase Agreement in accordance with the NCPA
Facilities Agreement;
1.I.30 "NGPP Resource" means a Proposed Resource that
has been approved as an NGPP Resource in accordance with Section 3.4.
preamble hereto.
1.1.31 "Participant" has the meaning set forth in the
1.1.32 "Participant Representative" has the meaning set
forth in Section 6.4 with respect to the NGPP Oversight Committee.
1.1.33
preamble hereto.
1.I.34
"Party" or "Parties" has the meaning set forth in the
"Participation Percentages" has the meaning set forth
in Section 7.1.
1.1.35 "Power Purchase Agreement" or "PPA" means an
agreement executed by NCPA, or to be executed by NCPA, for the purchase and
delivery of electric energy, capacity or other energy services and Environmental
Attributes.
1.1.36 "Preliminary Resource Schedule" means a "Resource
Schedule" substantially in the form of Exhibit B submitted to the NCPA
Commission as an initial evaluation of responses to a Request for Proposals for
the purposes of allowing Participants to make an election to Opt-Out of further
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
13
participation with respect to an otherwise Eligible Renewable Resource in
accordance with sections 3.4 and 6.2 below.
1.1.37 "Procure" and other forms of such verb, including
Procurement, Procuring, and Procured, means acquLring the output of Eligible
Renewable Resources, including all EnvLrorunental Attributes associated with
any electricity generated in connection therewith, through contracts with
facilities owned by third parties, by purchasing e×isting Eligible Renewable
Resources, by developing, constructing, installing, owning, operating,
maintaining, and controlling Eligible Renewable Resources, or such other means
as may be approved by the Participants from time to time.
in Section 3.1.
1.1.38
Section 3.3.1.
1 .i.39
"Procurement Conditions" has the meaning set forth
"Proposed Resource" has the meaning set forth in
1.1.40 "Request for Proposals" means the solicitation of
competitive bids from third parties to supply EligibIe Renewable Resources
under this Agreement, substantially in the form of Exhibit F attached hereto.
1. 1.41 "Resource Allocation Percentage" means a
Participant’s Participation Percentage as adjusted according to the terms of tltis
Amended AgTeement by reason of one or more Participant’s exercise of their
Opt-Out rights.
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
14
1.1.42 "Resource Schedule" means a Resource ScheduIe,
substantially in the form of Exhibit B, identifying the location of the Proposed
Resource, its size and technology, type of Procurement, the estimated costs (both
total and per MWh) and underlying assumptions, key milestone dates (such as
commercial operation date and deiivery period), a description of the definitive
a~eements, a proposed budget for pursuing the Procurement of electricity from
the Proposed
Procurement.
Resource and a proposed mechanism for financing the
1.1.43 "Revenues" means, with respect to each Participant
with the exception of BART, all income, rents, rates, fees, charges, and other
moneys derived by the Participant from the ownership or operation of its Electric
System, including, without limiting the generality of the foregoing, (a) all
income, rents, rates, fees, charges or other moneys derived from the sale,
furnishing and supplying of electric capacity and energy and other services,
facilities, and commodities sold, furnished, or supplied through the facilities of
its Electric System, (b) the earnings on and income derived from the investment
of such income, rents, rates, fees, charges or other moneys to the extent that the
use of such earnings and income is limited by or pursuant to law to its Electric
System and (c) the proceeds derived by the Participant directly or indirectIy from
the sale, lease or other disposition of all or a part of the Electric System, but the
term Revenues shalI not include (i) customers’ deposits or any other deposits
subject to refund until such deposits have become the property of the Participant
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
15
or (ii) contributions from customers for the payment of costs of construction of
facilities to serve them. In regard to BART, BART shall generate revenues
sufficient to cover its obligations under this Amended Agreement through tariffs,
fees, or other sources of revenue except through such sources as may be ILmited
by law-.
1.1.44 "Scheduling ProtocoIs" means the contractual or
other arrangements between NCPA and the relevant Participant concerning the
scheduling, delivery and metering of electricity.
1.1.45 "Security Account" means the account established by
NCPA and funded by the Participants in accordance with Section 5.5, the funds
of which are available for use by NCPA in accordance with the terms and
conditions hereof.
Agreement.
in Section 7.3.
!.1.46
I.I.47
"Term" has the meaning set forth in Section 8.
"Voting Member" means a party to the Joint Powers
1.1.48 "Withdrawing Participant" has the meaning set forth
1.2 Rules of Interpretation.
As used in this Amended Agreement (including the Recitals hereto), unless in
any such case the context requires otherwise: the terms "herein, ....hereto,"
"herewith" and "hereof" are references to this Amended Agreement taken as a
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
16
whole and not to any particular provision; the term "include, ....includes" or
..........li " " "including shall mean mclu&ng, for example and without nutat~on; and
references to a "Section, ....subsection," "clause," or "Exhibit" shaI1 mean a
Section, subsection, clause or Exhibit of this Amended Agreement, as the case
may be. All references to a given agreement, instrument or other document shall
be a reference to that agreement, instrument or other document as modified,
amended, supplemented and restated through the date as of which such
reference is made, and reference to a law, regulation or ordinance includes any
amendment or modification thereof. A reference to a "person" includes any
individual, partnership, firm, company, corporation, joint venture, trust,
association, organization or other entity, in each case whether or not having a
separate Iegal personality and includes its successors and permitted assigns. The
singular shall include the plural and the masculine shall include the feminine,
and vice versa.
Section 2. Effective Date of Agreement.
This Amended Agreement shall become effective upon the latest date of
execution by a Party hereto ("Effective Date"), provided that all the Participants
listed in Exhibit A have executed the Amended Agreement prior to January 31,
2008, upon which, NCPA’s General Manager shall notify all Participants of the
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
17
Effective Date. A copy of such notification shall be affixed to the official copy of
this Amended Agreement.
Section 3. Procurement Process.
3.1 Request for Proposals and PPA(s.~.
All procurement activities undertaken pursuant to this Amended Agreement
shali be in accordance with the form of Request for Proposals and accompanying
PPA(s) attached hereto and incorporated herein by reference as Exhibits F & G
respectively, as may be amended in accordance w-ith Section 10.5. NCPA
represents that the following conditions will be observed when undertaking its
procurement activities (" Procurement Conditions"):
(i)Each Proposed Resource shall be an Eligible
Renewable Resource;
(ii)
(iii)
(iv)
The Average Capacity of all NGPP Resources shall
not exceed the Maximum Average Capacity;
The period of time for which NCPA is obligated to
accept and pay for electricity under any singular PPA
shall not exceed twenty-five years;
The Contract Price for purchasing electricity under
any singular PPA shall not exceed the Maximum
Contract Price;
(v)The PPA(s) will be approved as to form by NCPA’s
General CounseI;
(vi)Where Procurement of electricity from a Proposed
Resource requires that NCPA obtain financing, each
PPA shall be subject to NCPA obtaining reasonable
financing; and
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
18
(vii)All Environmental Attributes associated with the
Proposed Resource will be transferred to NCPA;
3.2 Participant Approval of Procurement Process.
By executing this Amended Agreement, the Participant acknowledges and
agrees to be bound by the procurement process contained in or referenced by the
Request for Proposals and PPA(s) approved by the Participants pursuant to
Section 6.2 as provided for herein.
3.3 Approval of NGPP Resources.
3.3.1 Identification of Resources and Request for Review.
For all Eligible Renewable Resource that NCPA seeks to include as a NGPP
Resource ("Proposed Resource"), NCPA will present to the Commission a
Preliminary Resource Schedule, substantially in the form of Exhibit B attached
hereto, together with an estimated budget for completing the acquisition and or
development of the Proposed Resource. Notwithstanding any other provision in
this Amended Agreement to the contrary, at the time the Proposed Resource is
submitted to the Commission, each Participant shall be afforded an opportunity
to discontinue their participation in the Procurement ("Opt-Out") of an
otherwise Eligible Renewable Resource consistent with the procedures provided
in section 6.2 below, and within the following time limitations:
(i)At the first NCPA Commission meeting following the
Effective Date each Participant shall be provided with
a Preliminary Resource Schedule and estimated
budget for all Proposed Resources qualifying under
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
19
(ii)
the initial Request for Proposals issued on September
25, 2006.
For each Request for Proposals issued after the
Effective Date, NCPA shall prepare a Preliminary
Resource Schedule and estimated budget based upon
the best information available to NCI)A staff within
180 days of the date of issuance of the Request for
ProposaIs, and submit it to the Participants at the next
regularly scheduled NCPA Commission meeting.
3.3.2 Review by Oversight Committee. At the General
Manager’s discretion, the NGPP Oversight Committee may be requested to
review and provide written comments and recommendations to NCPA on
whether to include the relevant Proposed Resource as an NGPP Resource. If the
General Manager so requests, the NGPP Oversight Committee shall be provided
with copies of relevant PPA(s) proposed to be executed by prospective
counterparties any other information or materials prepared in connection with
the evaluation of such Eligible Renewable Resource and produce such other
summaries or anaiyses as the Commission or the NGPP Oversight Committee
may reasonably request.
3.3.3 Action by NCPA. NCPA shall take action to add a
Proposed Resource as a NGPP Resource for those Participants choosing not to
Opt-Out of participating in the acquisition of an otherwise Eligible Renewable
Resource pursuant to the provisions of Sections 3.3 and 6.2.
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
2O
3.4 Additional Provisions Related to Development Opportunities.
NCPA shall conduct investigations and analysis of potential development
opportunities for Eli~ble Renewable Resources on behalf of the Participants.
Such investigations and analysis may include but are be limited to: resource
selection, market analysis, site acquisition, cost analysis of permitting and
construction and partnership opportunities. At the General Manager’s
discretion, the NGPP Oversight Committee may review the recommendations of
NCPA and comment accordingly. NCPA shall annually budget for these
developmental expenditures as part of the NGPP Program Budget
The Participants agree that any decision to acquire a physical
resource asset shall be made pursuant to Section 6.2 and shall be subject to the
terms and conditions of a new development Third Phase Agreement undertaken
in accordance with the FaciIities Agreement. At the time the Third Phase
Agreement is presented to the Commission for finalizing the development of an
Eligible Renewable Resource the remaining Participants shall also be provided
with a final opportunity to Opt-Out of the acquisition of the Proposed Resources.
Should a Participant exercise its Opt-Out right at this stage the remaining
Participants" Resource Al!ocation Percentages shall be adjusted proportionateIy,
and the remaining Participants shall be liable for, and entitled to, the remaining
costs and benefits of acquiring the Proposed Resources. No NCPA action related
to development opportunities shall require any Participant to commit to more
power than its Average MW Participant election stated in Exhibit A.
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
21
3.5 Delivery of Electricity / Al!ocation of Environmental
Attributes. Any electricity delivered to NCPA from an NGPP Resource shall be
delivered to each Participant in accordance with such Participant’s Participation
Percentage, or Resource Allocation Percentage as applicable, and each
Participant shall accept its relevant percentage of such electricity. NCPA may
allocate electricity generated by, and/or delivered to NCPA from, any particular
NGPP Resource among the Participants in such percentages as NCPA may, in its
reasonable discretion and subject to the approval of the affected Participant,
determine are necessary, desirable, or appropriate; provided that the aggregate
quantity of electricity delivered to any Participant during a calendar month shall
equal such Participant’s Participation Percentage, or Resource Allocation
Percentage as applicable, of the aggregate amount of electricity generated and/or
delivered to NCPA from all NGPP Resources during the relevant calendar
month. Such electricity shall be delivered to the Participants in accordance with
the Scheduling Protocols. Environmental Attributes, as defined herein, obtained
by NCPA as a result of performance under this Amended Agreement shall
likewise be t~ansferred to each Participant in accordance with such Participant’s
Participation Percentage, or Resource Allocation Percentage as applicable.
3.6 Capacity Entitlement.
The collective capacity available from the NGPP Resources for planning and
reliability purposes shall be allocated among the Participants in accordance with
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
22
their respective Participation Percentage, or Resource Allocation Percentage as
applicable.
3.7 Payments to Counterpart!es.
NCPA shall pay all NGPP Project Costs using operating or Security Account
funds from amounts paid to NCPA in accordance with Section 5, or such other
sources as may be agreed upon in writing by the Parties from time to time.
3.8 Removal of NGPP Resources from NGPP.
Any NGPP Resource that delivers electricity to NCPA under a PPA shall be
automatically removed from the NGPP on the date its PPA terminates or expires.
Any other NGPP Resource shall continue to be included in the NGPP unt!l such
time as the Participants approve removing it from the NGPP and approves the
subsequent use of such NGPP Resource, including whether such NGPP Resource
should be sold or decommissioned pursuant to Section 6.2. Any proceeds or
costs associated with removing an NGPP Resource from the NGPP shall be
allocated among the Participants in accordance with the Participation
Percentages, or Resource Allocation Percentages as applicable, unless otherwise
agreed upon in writing by the Participants.
Section 4. Cooperation and Further Assurances.
Each of the Parties agrees to provide such in_formation, execute and deliver any
instruments and documents and to take such other actions as may be necessary
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
23
or reasonably requested by any other Party which are not inconsistent with the
provisions of this Amended Ag-reement and which do not involve the
assumption of obligations other than those provided for in this Amended
Agreement, in order to give full effect to this Amended Ag-reement and to carry
out the intent of this Amended Agreement. Further, the Parties a~ree to
cooperate and act in good faith in connection with obtaining any financing
required in order to Procure electricity from an NGPF Resource, including with
respect to negotiating and executing any agreements to implement any financing
arrangements.
Section 5.Budget, Operating.Fund, Invoicing.
5.1 "NGPP Cost Allocation."
NGPP Program Costs allocated to the Participants under this Amended
Agreement and through the NCPA Annual Budget shal! be in proportion to the
Participation Percentages; or in case a Participant elects to Opt-Out of the
procurement of a Proposed Resource, NGPP PPA Costs and NGPP Development
Costs shall be allocated to the Participants in proportion to the Resource
Allocation Percentages for the Proposed Resource as detailed in Exhibit A.
5.2 Payment of NGPP Proiect Costs.
Each Participant shall be obligated to pay NCPA for its’ allocated share of NGPP
Project Costs in proportion to its’ Participation Percentage, or Resource
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
24
Allocation Percentage as applicable, and shall maintain working capital in
accordance with NCPA’s Annual Budget, and fund its Security Account
obligation as required under this Amended Agreement.
5.3 Applicable Percentages of NGPP Project Costs and Budgets.
Each Participant applicable share of NGPP Program Costs shah be in proportion
to its’ Participation Percentage. If a Participant has exercised its’ right(s) to Opt-
Out of an otherwise Eligible Resource, the remaining Participants’ share of
NGPP PPA Costs or NGPP Development Costs shall be in proportion to their
applicable Resource A11ocation Percentages. NCPA shall be responsible for
insuring that the respective budget estimates for each such category of costs are
settled in accordance with Section 5.3.3 below.
5.4 Budgets and Budget Settlements.
5.4.1 Relation to the NCPA Annual Budget. Prior to the
beginning of each fiscal year for which no budget has been adopted and for each
fiscal year for which a budget will be adopted, NCPA, in conjunction with the
Participants, shall prepare and deliver to each Participant a NGPP Project Budget
estimating the NGPP Project Costs expected to be incurred over such fiscal year
as a result of this Amended Agreement. Any Participant may request a detailed
accounting of NCPA costs included as NGPP Project Costs in the NCPA Annual
Budget and such Participant shal! pay the reasonable costs of such accounting
review.
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
25
5.4.2 The Participants’ financial obligation to pay for costs
under this Amended Agreement shall be adjusted if any Participant chooses to
discontinue its participation in the acquisition of a Proposed Resource in
accordance with the "Opt-Out" provision in section 3.4, upon which, each
Participant’s Project Participation Percentages shaI1 be converted to Resource
Allocation Percentages as a separate schedule to Exhibit A. Each Participant
exercising its right to Opt-Out of the acquisition process for a Proposed Resource
shall be deemed to have a Resource Allocation Percentage of zero percent (0%)
for that Proposed Resource, and shall cease to be obligated for those costs NCPA
incurs g~-ging forward to acquire that resource. The Project Participation
Percenta.: ies for those Participants that do not Opt-Out of the acquisition of a
Propose~! Resource shall be increased proportionately to assume the financial
obligatio~.ts of Participant(s) choosing to Opt-Out of a Proposed Resource. NCPA
will promptly inform Participants of budget and cost allocation changes
associated with Participant decisions to Opt-Out of otherwise eligible resource
acquisitions.
5.4.3 Final NGPP Budget Settlement. A final NGPP Project
Budget settlement for the prior fiscal year will be produced each year after the
annual audit is completed. This shall normally occur on or prior to December 1
of each year.
5.5 Security Account.
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
26
5.5.1 Annual Amounts. Within thirty (31) days of the
beginning of a new fiscal year at NCPA (the first day of Aug-ust), each Participant
shall deposit into the Security Account its estimated obligation for NGPP PPA
Costs as identified in the NGPP Project Budget.
5.5.2 Subsequent Deposits. Quarterly, and within thirty
(30) days following execution by NCPA of any PPA or any financing
commitment for the development of an Eligible Renewable Resource, NCPA
shall review and revise its estimate of NGPP PPA Costs for the succeeding
twelve (12) months. Following such review, NCPA shall determine whether
each Participant has a sufficient balance in the Security Account. To the extent
that any Participant’s balance in the Security Account is greater than one
hundred and ten percent (110%) of the necessary funding level, NCPA shall
credit such amount to the Participant’s next invoice. To the extent that any
Participant’s balance in the Security Account is less than ninety percent (90%) of
its’ the necessary funding level, NCPA shall add to such Participant’s next
invoice an amount necessary to cause such Participant’s balance in the Security
Account to be sufficient.
5.5.3 Use of Security Account Funds. NCPA may use any
and all funds deposited into the Security Account to pay any NGPP Project
Costs, including making payments to counterparties under any PPA, payment of
consultants, attorneys and accountants performing services related to
Procurement activities, reimbursing NCPA for its internal costs associated with
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
27
performing its obligations under this Amended Agreement, and paying any
Claims, without regard to any individual Participant’s balance in the Security
Account or proportionate share of NGPP Project Costs and irrespective of
whether NCPA has issued an invoice for such NGPP Project Costs to the
Participants or whether a Participant has made timely payments of invoices.
5.5.4 Emergency Additions. In the event that the funds in
the Security Account are insufficient to allow payment of an invoice, demand,
request for further assurances, or Claims, NCPA shall notify all Participants and
then prepare and send a special or emergency assessment to the Participants.
Each Participant shall pay to NCPA such assessment when and if assessed by
NCPA within five (5) Business Days following the invoice date of the assessment.
5.5.5 Accounting and Interest. NCPA shall maintain a
record of each Participant’s deposits into and payments from the Security
Account. Interest earned on the Security Account shall be credited to the
Participants in accordance with the Participants share of the balance in the
Security Account. Any losses in the Security Account shall be allocated among
the Participants in accordance with their Participation Percentages.
5.5.6 Return of Funds. On the termination of this
Amended Agreement with respect to a Participant or a permitted withdrawal of
a Participant in accordance with this Amended Agreement, the affected
Participant or Participants may apply to NCPA for the return of their share of
Security Account funds ninety (90) days after the effective date of such
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
28
termination or withdrawal. NCPA shal!, in its sole discretion, as determined by
a vote of the Participants, excluding the vote of the withdrawing or terminated
Participant(s) that are members thereof, estimate the then outstanding liabilities
of the Participant(s), including any estimated contingent liabilities and shall
retain all such funds until all such liabilities have been fully paid or otherwise
satisfied in full. The balance of the Participant’s share of the Security Account
will be refunded to the Participant.
5.6 Invoicing.
5.6.1 Invoices. As part of NCPA’s regular, monthly,
advance billing or by separate special invoice, as required in the circumstances,
NCPA will issue an invoice to each Participant for its proportionate share of the
NGPP Project Costs (or any adjusernents thereto) based on such Participant’s
Participation Percentage and/or Resource Allocation Percentages as applicable.
Such invoice may include estimated costs and estimated settlement and meter
data. Each invoice shall include: (i) the total NGPP Project Costs for such month
and the relevant Participant’s share thereof; (it) the quantity of electricity and
Environmental Attributes, by NGPP Resource, procured on behalf of such
Participant (or an estimate thereof) and the unit price for such electricity; (iii)
appropriate settlement and meter data (or an estimate thereof); (iv) any
adjustments to prior invoices required based on actual data received that was
estimated in a previous invoice; (v) notice of the amount, if any, that NCPA has
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
29
paid or expects to pay using funds available in the Security Account; and (vi)
amounts due from (or credited to) such Participant under Section 5.5.2.
5.6.2 Payment of Invoices. All invoices delivered by NCPA
hereunder are due and payable no later than thirty (30) days following the
invoice date; provided, however, that any amount due on a day other than a
Business Day may be paid on the following Business Day. NCPA may apply a
Participant’s share of the Security Account to the payment of all or any portion of
an invoice issued to such Participant, provided that application of such funds
from the Security Account shall not relieve the Participant from any late payment
charges pursuant to Section 5.6.3. To the extent that NCPA applies funds from
the Security Account to pay an amount due under an invoice, following receipt
of payment of such invoice by the relevant Participant, NCPA shall deposit the
relevant portion of the payment into the Security Account and credit such
deposit to such Participant.
5.6.3 Late Payments. Any amount due and not paid by a
Participant in accordance with Section 5.6.2 shall bear interest computed on a
daily basis until paid at the lesser of (i) the per annum prime rate (or reference
rate) of the Bank of America NT&SA then in effect, plus two percent (2%) or (ii)
the maximum rate permitted by law.
5.7 Auditing and Settlement Data.
5.7.1 Settlement Data. NCPA will make metering and
settlement data available to the Participants. Procedures and formats for the
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
3O
provision of such data will be as established by the Participants and NCPA from
5.7.2 Audit Rights. Each Participant shall have the right to
audit any data c~eated or maintained by NCPA pursuant to this Amended
Agreement on thirty-one (31) days prior written notice (unless otherwise agreed
by NCPA). All audit rights shall be exercised in accordance with the rules and
procedures adopted by NCPA.
5.8 Revenue Covenant.
Any failure of a Participant to meet its obligations hereunder or to cure such
failure in a timely manner shai1 constitute a Default and the Defaulting Party
shall be subject to such remedies of NCPA as provided for herein. Each
Participant covenants and agrees (i) to continue to pay or advance to NCPA,
from its elecVric department revenues only or, in the case of BART, its tariffs, fees
or other sources of revenue provided that such sources shall not include any
sums derived from sources the use of which is limited by law to expenditures
other than operating expenses, its percentage share of the costs authorized by
Participants in accordance with this Amended Agreement in connection with its
participation in the Project. Each Participant further agrees that it will fix the
rates and charges for services provided by its electric department, or in the case
of BART, its general revenues, so that it will at all times have sufficient money in
its department revenue funds to meet this obligation; (ii) to make payments
under this Amended Agreement from the Revenues of, and as an operating
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
31
time to time.
expense of, its Electric System; (iii) to make payments under this Amended
Agreement whether or not there is an interruption in, interference with, or
reduction or suspension of services provided under this Amended Agreement;
such payments not being subject to any reduction, whether by offset or
otherwise, and regardless of whether any dispute exists provided such
interruption, interference or reduction in services is caused by forces constituting
an Act of God and not reasonably contemplated by the Parties; and (iv) to
operate its Electric System and the business in connection therewith in an
efficient manner and at reasonable cost and to maintain its Electric System in
good repair, working order, and condition.
Section 6.Administration of Agreement.
6.1 General.
NCPA has the sole overall responsibility and authority for the administration of
this Amended Agreement. Any acts, decisions or approvals taken, made or
sought by NCPA under this Amended Agreement shall be taken, made or
sought, as applicable, in accordance with NCPA’s Constitutive Documents and
Section 6.2.
6.2 Action by Participants.
(a) Forum:Whenever any action anticipated by this
Amended Agreement is required to be taken by the Participants, including but
not limited to, the expressed authorization to add or to detract from the list of
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
32
Eligible Renewable Resources, such actions shall be taken at a reg-ular or special
meeting of the NCPA Con~umission but shall be participated in only by those
Commissioners, or their designated alternates, who are Participants.
(b) 0uorum: A quorum at NCPA Commission meetings for
purposes of acting upon matters relating to this Amended Agreement shall
consist of Commissioners, or theLr designated alternates representing at least
three Participants having a combined majority interest based upon Participation
Percentages. Should the number of Participants choosing to Opt-Out of the
procurement of an otherwise Eligible Renewable Resource reduce the number of
remaining Participants to three or less, then a quorum shall consis[ of all
remaining Participants.
(c) Voting: Each Participant shall have the right to cast one
vote with respect [o ma~ters pertaining to this Amended Agreement, wi~h a
majority vote of the Participants required for action subject to the following
exceptions]
ii.
Upon request of any Participant representative, the
voting on an issue shall be by Participation
Percentage with a 65% or more favorable vote from
two or more Participants necessary to carry the
action.
After any decision related [o this Amended
Agreement is taken by the affirmative vote of
Participants holding Participation Percentages of less
than 65%, the action can be reviewed and revised if a
Participant gives notice of intention to seek such
review and revision to NCPA and each of the other
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
33
iii.
Participants within ten (10) days following the date
on which such action was taken. Upon receipt of
such a request for reconsideration, the chairman of
the Commission shall agendize the matter for
reconsideration at the next regular meeting of the
Commission or at a special meeting if the
circumstances so warrant. The action shall be upheld
upon the affirmative vote of authorized
representatives of two or more Participants holding at
least 65% of the total Participafion Percentages. Any
action taken upon reconsideration shall be final.
Any one Participant may exercise its’ right to Opt-Out
of an otherwise Eligible Renewable Resource
acquisition without regard to the action of any other
l~articipant. Any Participant who Opts-Out of an
otherwise Eligible Resource shall abstain from voting
thereafter as to issues relating to that resource.
6.3 NGP1° Oversight Committee.
NCPA may seek input and recommendations from the Participants regarding
performance under this Amended Agreement. Accordingly, the General
Manager of NCPA may establish, in his discretion, a committee comprised of
Participant Representatives which may meet from time to time. Such commi~ee
shall be referred to as the NGPP Oversight Committee. The NGPP Oversight
Committee may report to NCPA staff or the General Manager of NCPA, as the
General Manager deems appropriate. The NG!PP Oversight Committee may
adopt rules of procedure consistent with the provisions of this Amended
Agreement as it deems appropriate.
6.4 ]Participant Representatives.
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
IJ[ the General Manager
Participant shall:
(it)
(iii}
establishes an NGPP Oversight Committee, each
Authorize and designate one representative
("Participant Representative"), and in its discretion,
one or more alternates ("Designated Alternate") to
serve on the NGPP Oversight Committee;
Authorize its Participant Representative and
Designated Alternates to vote on behalf of such
Participant on recommendations on matters
pertaining to this Amended Agreement; and
Deliver to NCPA, written notice containing the name
and contact information of such Participant’s
ParVicipant Representative and Designated
Alternate(s), if any.
Section 7.
Participants.
Participation Percentage; Admission and Withdrawal of
7.1 Participation Percentages and Resource Allocation
Percentages.
The Participation Percentages and Resource Allocation Percentages of each
Participant are as set forth in Exhibit A, as the same may be modified from time
to time in accordance with the terms and conditions hereof.
7.2 Admission of New Participants.
Following the Effective Date of this Amended Agreement, no Member
("Additional Member") may execute this Amended Agreement and become a
Participant unless one or more of the Participants ("Allocating Participants")
elect to allocate a portion of its Participant Percentage to such Member. Upon
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
35
ag-reement of the Allocating Participant and the Additional Member, the
Additional Member shall deliver to NCPA and each other Participant the written
agreement between the Additional Member and the Allocating Participant(s)
indicating the agreed upon change in Participation Percentage(s), a counterpart
of this Amended Agreement executed by the Additional Member, evidence that
such agreements have been approved in accordance with its applicable
Constitutive Documents and payment of such Member’s share of the Security
Account. Any reduction in any Allocating Participant’s share of the Security
Account shall be credited to the Allocating Participants in accordance with
Section 5.5.2. Upon receipt of all required documents, NCPA shall provide to all
an updated Exhibit A reflecting the revised ParticipationParticipants,
Percentages.
7.3 Withdrawal of Participants.
7.3.1 Requirements and Process. Subsequent to the
Effective Date of this Amended Agreement, any Participant may voluntarily
withdraw from this Amended Agreement ("Withdrawing Participant")-upon
written agreement with one or more Participants ("Adjusting Participant") to
assume the Withdrawing Participant’s full Participation Percentage and
provided further that such withdrawal does not violate any applicable financing
conditions. The Withdrawing Participant shall provide notice of intent to
withdraw to NCFA together with the applicable agreement between the
Withdrawing Participant and the Adjusting Participant(s) regarding assumption
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
36
of the Withdrawing Participant’s Participation Percentage along with evidence
that such a~eement was approved in accordance with applicable Constitutive
Documents. Upon receipt of all required documents, NCPA shall send a revised
Exhibit A to all Participants reflecting the new allocation of Participation
Percentages.
7.3.2 Associated Costs. A Withdrawing Participant shall
reimburse NCPA for any and all costs resulting from its withdrawal, including
but not limited to the legal, accounting, and administrative costs of winding up
and assuring the complete
Participant’s obligations.
7.3.3
satisfaction and discharge of the Withdrawing
No Effect on Prior Liabilities. Withdrawal by any
Participant will not terminate any ongoing or un-discharged contingent liabilities
or obligations resulting from this Amended Agreement until they are satisfied in
full or such Withdrawing Participant has provided a mechanism reasonably
acceptable to NCPA and the remaining Participants, for the satisfaction in full
thereof.
Section 8. Term and Termination.
The term ("Term") of this Amended Agreement shall commence on the Effective
Date and shall continue until (i) terminated by consent of all of the Participants
that have not previously withdrawn from this Amended Agreement in
accordance with Section 7.3 or otherwise voluntarily or involuntarily had their
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
37
participation in this Amended Agreement terminated or (ii) all NGPP Resources
have been removed from the NGPP.
Section 9. Default and Remedies
9.2 Events of Default.
An event of default under this Amended Agreement shall exist with respect to a
Party ("~efaulting Party") upon the occurrence of any one or more of the
following:
if any Party fails to make any payment when due
hereunder five (5) Business Days after receipt of
notice given by NCPA of such non-payment; or
(ii)if any Party fails to perform any other covenant or
obIigation under this Amended Agreement where
such failure is not cured within ten (10) days
following receipt of a notice from NCPA demanding
cure (provided that this shall not apply to any failure
to make payments (which is covered by Section 9.1
(i))); or
(iii)if any representation or warranty of any Party
material to the transactions contemplated hereby shall
prove to have been false or misleading in any material
respect when made and that Party does not cure the
facts underlying such incorrect representation or
warranty so that the representation or warranty is
corrected, to the satisfaction to the other Participants,
within ten (10) days of the date of receipt of notice
from any other Party demanding cure; or
(iv)if any Party is in default or in breach of any of its
covenants under any other agreement with NCPA
and such default or breach is not cured within the
time periods specified in such agreement; or
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
38
(v)the failure of NCPA to perform any covenant or
obligation under this Amended Agreement following
a ten (10) day notice to cure by any non-defauIving
Participant.
9.3 Cure of an Event of Default.
An Event of Default shall be deemed cured only if such default shall be
remedied within the time period specified in Section 9.1, above, as may be
applicable after written notice has been sent to the Defaulting Party from NCPA
specifying the default and demanding that the same be remedied provided that
failure of a Party to provide such notice shall not be deemed a waiver of such
default. If such default is not reasonably capable of cure within the applicable
time period specified herein, then the default shall not be deemed an Event of
Default if the Defaulting Party commences to remedy the default within the
applicable time period specified herein and thereafter diligently pursues such
remedy until such default is fully cured; provided, however, that in no event
shall any Party be entitled to longer than thirty (30) days to cure an Event of
Default with respect to any payment obligation under this Amended Agreement
after receipt of written notice thereof.
9.3 Participation Rights of Defaulting Party.
Notwithstanding anything herein to the contrary, upon the occurrence of an
Event of Default and until such Event of Default is cured, the Participant that is
the Defaulting Party shall not have the right to participate under Section 6.2 on
any matter with respect to this Amended A~eement.
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
39
9.4 Remedies in the ]{vent of Default.
9.4.1. Remedies of NCPA. Upon the occurrence of an Event
of Default where a Participant is the Defaulting Party, without limiting its other
rights or remedies available under this Amended Agreement, at law or in equity,
and without constituting or resulting in a waiver, release or estoppeI of any right,
action or cause of action NCPA may have against the Participant, NCPA may:
(i)suspend the provision of services under this
Amended Agreement to such Defaulting Party,
including the delivery of electricity and other
attributes of any NGPP Resources until the Event of
Default is cured;
(ii)
(iii)
demand that the Defaulting Party provide further
assurances that it is ready, willing and able to meet its
obligations under this Amended Agreement; and
terminate this Amended Agreement as to the
Defaulting Party on ten (10) days prior written notice
to the Defaulting Party and following approval of the
non-defaulting Participants; and
(iv)Subject to limitations as otherwise referenced in this
Amended Agreement, NCPA shall have the right,
duty and obligation to pursue alI remedies under law
or in equity against any Defaulting Participant in
curing or mitigating such default. Any Defaulting
Party shall remain liable under this Amended
Agreement for any damages resulting from such
default including damages resulting from subsequent
purchases as authorized by this Amended
Agreement.
9.4.2 Sale/Transfer of Participants Account Upon Default.
Upon any default of a Participant caused by the failure of such Participant to pay
any sums due, and provided that such default is not cured in a timely manner,
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
40
then NCPA shall use its best efforts to sell and ~ransfer for the defaulting
Part~clpan s account all or a portion of the Part~clpant s capacity and,/or energy
and/or Environmental Attributes for the remainder of the term of this Amended
Agreement. The price to be paid to NCPA by the Non-Defaulting Participants
for the Defaulting Participant’s capacity, energy, or environmental attributes
shall be at cost as opposed to market price. The Defaulting party shall receive no
compensation from such sale.
Participant’s capacity, energy
Notwithstanding that all or any portion of [he
or envLronmentaI attributes is sold or transferred,
the Participant shall remain liable for all of its obligations hereunder unless
released therefrom by NCPA and the transferee upon assumption by the
transferee. To the extent that any portion of the defaulting Participant’s capacity
and/or energy is unable to be sold by NCPA, then the Participation Percentages
of each non-defaulting Participant shall be automatically increased for the
remaining term of this Amended Agreement pro-rata with those of the other
non-defaulting Participants and the defaulting Participant’s Participation
Percentage be reduced accordingly, but only for the purpose of computing the
Percentages of the non-defaulting Participants. The sum of any increases of a
non-defaulting Participant’s Participation Percentage shall not exceed twenty-
five (25) percent of the non-defaulting Participant’s original Participation
Percentage on an accumulated basis without the written consent of such non-
defaulting Participant.
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
41
9.4.3 Remedies of Participants. Upon the occurrence of an
Event of Default, and following the applicable cure periods, where NCPA is the
Defaulting Party, the Participants may, without limiting their other rights or
remedies available under this Amended Agreement, at law or in equity, and
without constituting or resulting in a waiver, release or estoppel of any right,
action or cause of action the Participants may have against NCPA, terminate this
Amended Agreement in whole, subject to the provisions of Section 9.5.4.
9.4.4 Special Covenants Regarding Security Account. In
the event that a Participant’s balance in the Security Account is insufficient to
cover all invoices for NGPP Project Costs sent to such Participant, then, without
limiting NCPA’s other rights or remedies available under this Amended
Agreement, at law or inequity, such Participant shall cooperate in good faith
with NCPA and shall cure the default as rapidly as possible, on an emergency
basis, taking all such action as is necessary, including, but not limited to, raising
rates and charges to its customers to increase its Revenues to replenish its share
of the Security Account as provided herein, drawing on its cash-on-hand and
lines of credit, obtaining further assurances by way of credit support and letters
of credit, and taking all such other action as will cure the default quickly.
9.5 Effect of Termination or Suspension.
9.5.1 Generally. The suspension or termination of this
Amended Agreement will not terminate, waive, or otherwise discharge any
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
42
ongoing or undischarged liabilities, contingent liabilities or obligations arising
from this Amended Agreement until such obligations are satisfied in rut1, and all
of the costs incurred by NCPA in connection with such suspension or
termination, including reasonable attorney fees, the fees and expenses of other
experts, including auditors and accountants, other costs and expenses that NCPA
is entitled to recover under this Amended Agreement, and other reasonable and
necessary costs associated with any and all of the remedies, are paid in rut1.
9.5.2 Suspension by NCPA. If performance of all or any
portion of this Amended Agreement is suspended by NCPA with respect to a
Participant in accordance with Section 9.4.1 (i), such Participant shall pay any
and all costs incurred by NCPA
reasonable attorney fees, the fees
as a result of such suspension
and expenses of other experts,
including
including
auditors and accountants, other reasonable and necessary costs associated with
such suspension and any portion of the NGPP Project Costs that were not
recovered from such Participant as a result of such suspension.
9.5.3 Termination by NCPA. If this Amended Agreement
is terminated by NCPA with respect to a Participant in accordance with Section
9.4.1 (iii), (i) such Participant shall pay any and all costs incurred by NCPA as a
result of such termination including reasonable attorney fees, the fees and
expenses of other experts, including auditors and accountants, other reasonable
and necessary costs associated with such suspension and any portion of the
NGPP Project Costs that were not, or will not be, recovered from such Participant
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
43
as a result of such termination, and (ii) such Participant’s Participation
Percentage shall be allocated among the remaining Participants in like manner as
defined in Section 9.4.2; provided however, if NCPA terminates this Amended
Ao~reement with respect to the last remaining Participant, then this Amended
Agreement shall terminate.
9.5.4 Termination by Participants. If this Amended
A~eement is terminated by all Participants in accordance with Section 9.4.3, or
by unanimous consent of all of the Parties hereto, then the Participants shall pay
to NCPA all previously unpaid NGPP Project Costs incurred as of the date of
such termination, and following such termination, the Participants shall
cooperate and act in good faith to negotiate and agree upon the method of
allocating among the Participants in proportion to their respective Participation
Percentages the costs and benefits of the NGPP Resources, all FPAs then in effect,
and any financing agreements or commitments and any matters pertaining to the
administration, management, control, operation and maintenance of the NGPP
Resources. NCPA shall reasonably cooperate with the Participants in connection
with implementing the foregoing and the Participants shall indemnify NCPA for
any costs incurred in connection therewith, including reasonable attorney fees,
fees and expenses of other experts, including auditors and accountants and other
reasonable and necessary costs. If the Parties are unable to reach agreement as to
the foregoing, then the Parties a~ee to submit the matter to mediation with a
mutually agreed upon mediator, tf the Parties are still unable to reach agreement
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
44
following mediation, then the matter shall be submitted to binding arbitration
subject to the ruIes of the American Arbitration Association, the costs of such
arbitration being borne in proportion among the Parties according to their
Participation Percentages.
Section 10.Miscellaneous.
10.1 Confidentiality.
The Participants and NCPA will keep confidential a!! confidential or trade secret
information made available to them in connection with this Amended
Agreement, to the extent possible, consistent with applicable laws, including the
California Public Records Act and the California Constitution. It shall be the
responsibility of the holder of the claim of confidentiality or trade secret to
defend at its expense against any request that such information be disclosed.
Confidential or trade secret information shall be marked or expressly identified
as such.
10.2 Indemnification and Hold Harmless.
Subject to the provisions of Section 10.4, each Participant agrees to indemnify,
defend and hold harmless NCPA and its Members, including their respective
entities governing officials, officers, agents, and employees, from and against any
and all claims, suits, losses, costs, damages, expenses and liability of any kind or
nature, including reasonable attorneys’ fees and the costs of litigation, including
experts ("Claims"), to the extent caused by any acts, omissions, breach of
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
45
contract, negligence (active or passive), gross negligence, recklessness, or willful
misconduct of a Participant, its governing officials, officers, employees,
subcontractors or agents, to the maximum extent permitted by law.
l 0.3 Several Liabilities.
No Participant shall be liable under this Amended Agreement for the obligations
of any other Participant, and each Participant shall be solely responsible and
liable for performance of its obligations under this Amended Agreement, except
as otherwise provided for herein, and the obligation of each Participant under
this Amended Agreement is a several obligation and not a joint obligation with
those of the other Participants.
10.4 No ConsequentiaiDamages.
FOR ANY BREACH OF ANY PROVISION OF THIS AMENDED AGREEMENT
FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS
PROVIDED IN THIS AMENDED AGREEMENT, THE LIABILITY OF THE
DEFAULTING PARTY SHALL BE LIMITED AS SET FORTH IN SUCH
PROVISION, AND ALL OTHER DAMAGES OR REMEDIES ARE HEREBY
WAIVED. IF NO REMEDY OR MEASURE OF DAMAGE IS EXPRESSLY
PROVIDED, THE LIABILITY OF THE DEFAULTING PARTY SHALL BE
LIMITED TO ACTUAL DAMAGES ONLY AND ALL OTHER DAMAGES AND
REMEDIES ARE HEREBY WAIVED. IN NO EVENT SHALL NCPA OR ANY
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
46
PARTICIPANT OR THEIR RESPECTIVE SUCCESSORS, ASSIGNS,
REPRESENTATIVES, DIRECTORS, OFFICERS, AGENTS, OR EMPLOYEES BE
LIABLE FOR ANY LOST PROFITS, CONSEQUENTIAL, SPECIAL,
EXEMPLARY, INDIRECT, PUNITIVE OR INCIDENTAL LOSSES OR
DAMAGES, INCLUDING LOSS OF USE, LOSS OF GOODWILL, LOST
REVENUES, LOSS OF PROFIT OR LOSS OF CONTRACTS EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
AND NCPA AND EACH PARTICIPANT EACH HEREBY RELEASES EACH
OTHER AND EACH OF SUCH PERSONS FROM ANY SUCH LIABILITY.
10.5 Amendments.
Except where this Amended Agreement specifically provides otherwise, this
Amended Agreement may be amended only by a written instrument executed by
the Parties with the same formality as
Notwithstanding the above, the Parties hereby
this Amended Agreement.
agree that the Participants,
through their respective NCPA Commission representatives, have the discretion
to modify the provisions of the following Exhibits pursuant to Section 6.2: A
(Participation Percentages and Resource Allocation Percentages), C (Approved
Resource Schedules), and G (Form of Power Purchase Agreement). The Parties
further agree that the NCPA General Manager has the discretion to modify the
provisions of Exhibits B (Form of Resource Schedule) and F (Form of Request for
Proposals).
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
47
10.6 Severability.
In the event that any of the terms, covenants or conditions of this Amended
Agreement or the ~pplication of any such term, covenant or condition, shall be
held invalid as to any person or circumstance by any court having jurisdiction,
all other terms, covenants or conditions of this Amended Agreement and their
application shall not be affected thereby, but shall remain in force and effect
unless the court holds that such provisions are not severable from all other
provisions of this Amended Agreement.
10.7 Governing Law.
This Amended Agreement shall be interpreted, governed by, and construed
under the laws of the State of California.
10.8 Headings~
All indices, titles, subject headings, section titles and similar items are provided
for the purpose of convenience and are not intended to be inclusive, definitive, or
affect the meaning of the contents of this Amended Agreement or the scope
I 0.9 Notices.
Any notice, demand or request required or authorized by this Amended
Agreement to be given to any Party shall be in writing, and shall either be
personally delivered to the Participant Representative and the secretary of the
Commission or transmitted to the Participant and the secretary at the address
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
48
thereof.
shown on the signature pages hereof. The designation of such address may be
changed at any time by written notice given to the secretary of the Commission
who shall thereupon give writlen notice of such change to each ]Participant. Any
notices required hereunder shall also be delivered to Participant’s Commissioner.
I0.I 0 Warranty of Authority.
Each Participant, and I’qCPA, represents and warrants that it has been duly
authorized by all requisite approval and action to execute and deliver this
Amended Agreement and that this Amended Agreement is a binding, legal, and
valid agreement enforceable in accordance with its terms as to the Participant
and as to NCPA. Upon the execution of this Amended Agreement, each
Participant shall deliver to NCPA evidence of such Participant’s authority to
enter into this Amended Agreement and that such authority was exercised in
accordance with such Participant’s Constitutive Documents.
I0.i I Counterparts.
This Amended Agreement may be executed in any number of counterparts, and
each executed counterpart shall have the same force and effect as an original
instrument and as ff all the signatories to all of the counterparts had signed the
same instrument. Any signature page of this Amended Agreement may be
detached from any counterpart of this Amended Agreement without impairing
the legal effect of any signatures thereon, and may be attached to another
counterpart of this Amended Agreement identical in form hereto but having
attached to it one or more signature pages.
AIr, ENDED THIRD PHASE AGREENfENT - NCPA GREEN POWER POOL
49
10.12 Assignment.
Except as provided by Section 7, no Farticipant may assign or otherwise transfer
all or any portion of its Participation Percentage or any other rights and
obligations under this Amended Ag-reement without the express written consent
of NCPA.
10.13 List of Exhibits.
The Exhibits referenced herein shal! be denoted as follows:
Exhibit A -
Exhibit B -
Exhibit C -
Exhibit D -
Exhibit E -
Exhibit F -
Exhibit G -
Participation Percentages and Resource Acquisition
Percentages
Form of Resource Schedule
Approved Resource Schedules
Intentionally Omitted
Intentionally Omitted
Form of Request for Proposals
Form of Power Purchase Agreement
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
50
IN WITNESS WHEREOF, each Participant has executed this Amended
Azreement with the approval of its governing body-, and NCPA has authorized
this Amended Azreement in accordance with the authorization of its
Commission.
NORTHERN CALIFORNIA POWER AGENCY
180 Cirby Way
Roseville, CA 95678
916-781-3636
916-783-7693 fax
BAY AREA RAPID TRANSIT
PO Box 12688
Oakland, CA 94604-2688
510-464-6435
510-464-6118 fax
By:
Its:
By:
Its:
Approved as to form:
By:,
Its: A~tornev
Approved as to form:
By:
Its: Attorney
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
51
CITY OF HEALDSBURG
401 Grove Street
Healdsburg, CA 95448
707-431-3317
707-431-3321 fax
CITY OF LOMPOC
PO Box 8001
Lompoc, CA 93438-8001
805-736-1261
805-736-5347 fax
By:
Its:
By:
Its:
Approved as to form:
By:
Its: Attorney
Approved as to form:
By:
Its: Attorney
CITY OF PALO ALTO
PO Box 10250
Palo Alto, CA 94303-0862
650-329-2273
650-321-0651 fax
PLUMAS SIERRA REC
73233 State Hwy 70
Portola, CA 96122-7069
530-832-4261
530-832-6070 fax
By:
Its:
By:
Its:
Approved as to form:
By:
Its: Attornev
Approved as to form:
By:
Its: Attorney
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
52
CITY OF SANTA CLARA
1500 Warburton Avenue
Santa Clara, CA 95050
408-615-2250
408-241-6771 fax
CITY OF UKIAH
300 Seminary Avenue
Ukiah, CA 95482
707-463-6200
707-463-6204 fax
By:
Its:
By:
Its:
Approved as to form:
By:
Its: A~tornev
Approved as to form:
By:
Its: Attorne .v
CITY OF LODI
221 West Pine St.
Lodi, CA 95240
209-333-6702
209-333-6807 fax
By:
Its:
Approved as to form:
By:
Its: Attorney
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
53
Exhibit A
Project Participation Percentages
And
Resource Allocation Percentages
Participant
Alameda
BART
Biggs
Gridley
Healdsburg
Lassen
Lodi
Lompoc
Palo Alto
Plumas
Port of Oakland
Redding
Roseville
SVP
TID
Truckee Donner
Ukiah
Total Annual aMW
aMW = Capacity in Average MW
Participant Election
(aMW)*
2.0
5.0
5.0
15.0
2.0
25.0
Participation
PerF,entage
10.9375%
3.1250%
7,8125%
7,8125%
23,4375%
3,1250%
39.0625%
3.0 4.6875%
64.0 100,0000%
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
54
Exhibit A-1
Resource Allocation Percentage Table
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
55
Exhibit B
Form of Resource Schedule
Location"
Fuel / Technology
Size "
Type of Procurement
Estimated Costs ¯
Key Milestone Dates (such as commercial operation date and
delivery period):
Definitive Agreement(s) "
Proposed Budget-
Proposed Mechanism for Financing the Procurement "
Other Notes and Underlying assumptions ¯
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
56
Exhibit C
Approved Resource Schedules
The Resource Schedule submitted in connection with opting out of or approving
a Proposed Resource under Section 3 will be added to this Exhibit following
approval of such proposed Resource in accordance with Sections 3.2 and 3.4
respectively.
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
57
Exhibit D
IntentionaiIj Omitted
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
58
Exhibit E
Intentionally Omitted
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
59
Exhibit F
Pro Forma Request for Proposals
CPA
~ NORTHERN CALIFORNIA POWER AGENCY
REQUEST for PROPOSALS
For
RENEWABLE ELECTRIC PO~VER SUPPLY PROPOSALS
(PPT)
RFP Issue Date:
Response Deadline:
September 25, 2006
October 25, 2006, 5:00pro Pacific Prevailing Time
Section 7. PURPOSE AND SCOPE
The Northern California Power Agency (NCPA) is accepting proposals for Eligible
Renewable Resources and Landfill Gas supplies to meet the expected long-term electric
power needs of its Members.
This RFP is limited to those parties who currently have rights in, own, or propose to
develop, an Eligible Renewable Resource electric generating facility(ies) or, own and
operate landfill facilities.
NCPA may procure power supply resources or landfill gas supplies from those
Respondents whose proposals, in NCPA’s sole judgment, represent the greatest value to
the NCPA Members when compared with other options available to NCPA. The
issuance of this Request For Proposals (RFP) does not constitute a commitment by
NCPA or its Members to purchase such resources from any source. NCPA reserves the
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
60
right to revise, suspend or terminate this RFP and any schedule related thereto at its sole
discretion without liability to any Respondent.
Section 8. DESCRIPTION OF NCPA
NCPA is a nonprofit California joint powers agency established in 1968. Its Members
are: the cities of Alameda, Bay Area Rapid Transit District, Biggs, Gridley, Healdsburg,
Lodi, Lompoc, Palo Alto, Redding, Roseville, Santa Clara, Ukiah, the Port of Oakland,
the Truckee Donner Public Utility District, and the Turlock Irrigation District; and three
Associate Members: Lassen Municipal Utility District, Placer County Water Agency,
and the Plumas-Sierra Rural Electric Cooperative. These Members serve nearly 700,000
electric consumers in Central and Northern California. Attachment 5 displays the
locations of each NCPA Member and jointly owned resources.
As a CAISO Schedule Coordinator, NCPA makes arrangements for physical power
deliveries to its Members through the CAISO Grid. In addition, NCPA’s members hold
additional transmission-related rights through other pre-existing contracts.
In Fiscal Year 2004-05, NCPA Members met peak demands of 1960 megawatts (MW)
and supplied 9400 gigawatt-hours (GWh) of energy. To meet these loads, NCPA
Members own and operate geothermal generation located in the Geysers region of
California, multiple hydroelectric facilities, gas fired combustion turbines (CTs) located
in five Members’ service areas, miscellaneous small projects, numerous existing power
supply contracts (including renewable sources such as wind and landfill gas purchased
via NCPA’s 2003 Renewable Electric Power Supply RFP) and Western Area Power
Administration (Western) contracts for capacity and associated energy.
Those Members participating in this RFP have the exclusive authority to set retail rates
sufficient to cover power purchase obligations, with the exception of BART, which has
tariffs, fees or other sources of revenue except as such may be limited by law. Power
purchase contracts between NCPA and third parties are not subject to prudence review by
state regulatory agencies and may be enforced according to their terms, in accordance
with California law. The California Public Utilities Commission lacks jurisdiction over
the power purchase contracts of such NCPA Members. Contracts to be executed as a
result of this RFP are intended as binding legal agreements enforceable in the California
courts.
With the exception of BART, each NCPA Member, participating in this RFP, operates its
own electric system as an enterprise and special fund and such members are obligated to
establish and collect fees and charges for electricity furnished through its electric system
sufficient to pay any and all amounts payable from electric system revenues, which
include amounts of capacity or energy, or both, furnished pursuant to an agreement
entered into as a result of this RFP. BART shall generate revenues sufficient to cover its
obligations under an agreement through tariffs, fees or other sources of revenue except
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
61
through such sources which may be limited by law. Fees and charges for electricity
furnished through each NCPA Member’s electric system are not considered taxes and are
thus not subject to California tax and voter approved provisions such as Propositions 13,
62, and 218.
Section 9. DESCRIPTION OF REQUEST
A) Electric Power Supply
NCPA will accept long-term contract or equity position proposals for renewable electric
power supply resources which include, but may not be limited to: biomass, biodiesel,
fuel cells using renewable fuels, digester gas, geothermal, landfill gas, municipal solid
waste, ocean wave, ocean thermai, tidai current, waste tire, waste gasification (various
fuels), solar (thermal), solar (photovoltaic), wind, or small hydro(30MW or less) which
are (a) located within California, (b) are located outside of California and have their first
point of intercormection with the Western Electricity Coordinating Council transmission
system located within California or (c) are located outside of California but deliver
electricity to a substation or node within California.
Respondents may submit proposals that specify an energy source other than one of those
listed above. Any Respondent, who chooses to propose an energy source not on the
above list, must provide adequate documentation in its proposal which identifies the fuel
source as Eiigible Renewable. After verification of the proposal as an Eligible Renewable
Resource project, NCPA, in its sole discretion, will make a determination as to the
suitability of the proposal for this RFP process.
NCPA will not accept proposals for renewable resources that are separated from their
Renewable Energy Credits/Attributes (REC) and offered only as an energy transaction.
Additionally, this RFP is limited to generating facilities that have an installed capacity as
follows:
PV Solar facilities directly connected to the distribution system of a
participating NCPA Member: 10kW or larger,
b)Other facilities directly connected to the distribution system of a
participating NCPA Member: 100kW or larger,
c)All other facilities:1MW or larger.
Depending on the value and type of proposals received, NCPA could accept, from one or
more proposals, up to a total of 79aMW. [Average MW(aMW) - For example, 100MW
of installed wind capacity at 32% annual capacity factor would be equivalent to 32aMW.]
B) Power Purchase Agreement (PPA) for Electric Power Supply
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
62
NCPA has prepared a pro-forma PPA (Attachment 4) for the purchase of renewable
energy and associate,J environmental attributes. The PPA and associated Addenda
contemplate the transfer of both renewable energy and RECs. Any proposal made for the
sale of both renewable energy and associated RECs must be made by the Respondent
with the assumption that the pro-forma will be the basis for any definitive agreements
between the.Respondent and NCPA.
Capitalized terms used in this RFP and not otherwise defined have the meanings given to
them in the PPA. Respondents should review the pro-forma PPA to have a full
understanding of this RFP.
Any executed agreement for the purchase of Eligible Renewable Resource energy will be
presented to the NCPA Commission and will be subject to the approval of the
Commission and any other applicable authorities that have jurisdiction over any or all of
the subject matter.
NCPA reserves the right to update, modify, or revise any or all of the terms and
conditions contained in the pro-forma PPA and associated addenda.
C) Landfill Gas
NCPA vdll also accept long-term contract proposals for the use of landfill gas supplies to
be transferred to NCPA at the point of delivery for use as fuel for the generation of
electric power. Such generation will be produced by an NCPA owned, built, and
operated electric generation plant.
Section 10. SECURITY
NCPA vvill not post security, collateral, or other assurances for credit, purposes for any
reason whatsoever prior to or during the term of any agreement arising from this RFP.
Proposals that include or are contingent on NCPA providing security, collateral, or other
assurances will be deemed non-responsive and will not be considered.
Section 11. PROPOSAL SUBMITTAL
All responses, questions and communications shall be submitted to the following email
address, NCPAGreenRFP2006(£ncpa.com., using the appropriate Stage 1 Proposal
Questionnaire
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
63
You may also direct questions to:
Dana W. Oriffith
Power Coordination and Planning Engineer
Tel: 916-781-3636
Fax: 916-783-7693
The following table summarizes the attachments to be provided to NCPA by Proposers:
Forms to be filled out by:
Electric Landfill
Generation Owners
X
X
X
X
Attachment I Descr,!pti0n ,,
la I Electric Generation Proposal .....
lb ! Electric Generation Proposal Data Surn~ary
X
X
2a Landfill Gas Proposal
2b .........I Landfill Gas Proposal Data Summary
3a Electric Generation Proposer - Waiver and Acknowledgement
3b Landfill Gas Proposer - Waiver and Acknowledgement
4 }PPA for Electric Generation
5 ! NCPA Member and Project,, M,,~p
NCPA, in its sole discretion, may reject any late or non-responsive proposal.
NCPA must receive all proposals with the appropriate attachments by eIectronic e-mai!
no later than 5:00 p.m. (PPT) on October 25, 2006.
A hard copy of the proposal is not required; however, Respondents may also send a hard
copy of the proposal and/or other supporting documents to NCPA no later than 5:00 p.m.
(PPT) October 26, 2006.
Each proposal package submitted in response to this RFP shall contain only one proposal.
Respondents may submit more than one proposal in separate proposal packages.
Proposals, including proposed prices, will remain binding on the Respondent through the
date of completion of negotiations and the NCPA Commission approval process (120
days). A duly authorized officer of the Respondent must sign the proposal.
None of the material received by NCPA from the Respondent in response to this RFP
will be returned to Respondent. All materials and proposals submitted by the Respondent
will become the property of NCPA and may be used by NCPA for the purpose of
evaluating proposals, executing any agreements, regulatory hearings, and administering
any resulting definitive agreements.
All responses that may arise from this RFP are considered commitments for use in
developing the agreement between NCPA and the Respondent.
Any and all proposals in respect of a landfill gas-fired electricity generating facility or
landfill gas supply shall include, as the first page of the proposal, an executed Attachment
3a or Attachment 3b, whichever is applicable.
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
64
Section 12. EVALUATION PROCESS
The RFP evaluation process will be completed in two stages. The first stage includes the
submission of the Stage 1 Proposal Questionnaire (Attachments 1, 2 and 3), an initial
screening by NCPA, and a preliminary evaluation by NCPA.
NCPA will perform an initial screening to identify and eliminate any proposal that is non-
responsive to the RFP, does not meet the minimum requirements set forth in the RFP, is
clearly not economically competitive with other proposals, or is submitted by a
Respondent that lacks appropriate creditworthiness, sufficient financial resources, or
qualifications to provide dependable and reliable service.
NCPA will then perform a preliminary evaluation of the remaining proposals and rank
their value relative to other proposals as well as al! other available options.
NCPA expects the initial screening and proposal evaluation process will take
approximately six weeks after the date of closing for submission of complete proposals;
however, the timeline will depend on the number and complexity of proposals received.
After the initial screening and evaluation process, NCPA will noti~ each Respondent of
its status. Respondents will be notified whether their proposal is on the "Short List",
"Secondary List", or listed as "Not Considered at this Time".
The Stage 2 process may include presentations to NCPA and the participating NCPA
Members, verification of certain key Proposal data, and reviews of other issues as
needed. Any Respondent who is notified that its proposal meets the Stage ! criteria and
is advanced to the "Short List" wi!l be advised of the due date for any additional Stage 2
questions.
NCPA may request that Respondents complete supplemental questionnaires and/or meet
for oral interviews at any stage of the RFP process. Respondents failing to provide
information, deemed necessary by NCPA to adequately review a proposal, may be
eliminated from further consideration at any stage or time during the RFP process.
Section 13. EVALUATION CRITERIA
NCPA will, in its sole discretion, evaluate responsive proposals to determine which
proposals are likely to provide the greatest overall value to its Member utilities. All
proposals will be evaluated based on factors that include, but are not limited to: proposal
term, technology, energy source, location, delivery point, status, timeline, .joint action
partners, environmental benefits as well as Respondent’s experience, public credit rating,
financial stability, extent of off-balance sheet financing, product price and terms,
delivery, service levels, and other relevant criteria.
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
65
In addition, depending on the project being proposed, proximity to load may have value
to certain NCPA Members. Those Members may be interested in being a host or
assisting in direct connection to their distribution grid.
Evaluations will be based on information provided during the two-stage R.FP process,
possible oral interviews with the Respondent, mail or email requests, information already
known by NCPA, and other publicly available information.
All determinations made by NCPA with respect to any Respondent or its proposal,
including the determinations described in this RFP, shall be made by NCPA in its sole
discretion and without liability. No debriefings wil! be provided as these determinations
will be final and are not subject to review.
Section 14. GENERAL PROVISIONS
If the Respondent so specifies and clearly identifies portions of its proposal as.
~PROPRJETAR¥ AND CONFIDENTIAL", NCPA will make reasonable efforts to treat
the marked portions as confidential information. Such information may, however, be
made available under applicable State or Federal law. NCPA also reserves the right to
release such information to its agents, contractors, or Member utilities for the purpose of
evaluating a Respondent’s proposal. Such agents, contractors and Member utilities will
be required to observe the same care with respect to disclosure as NCPA. Under no
circumstances will NCPA, its Commission, managers, agents, contractors or Member
utilities, be liable for any damages resulting from any disclosure of Respondent’s claimed
confidential information during or after this R.FP process.
Although NCPA is interested in meeting its needs by acquiring resources that provide the
greatest value to its Members, evaluation of a proposal does not constitute a commitment
by NCPA to purchase energy and/or capacity from any source. NCPA Members and
NCPA are not obligated in any way to proceed with this RFP or consider or enter into
any agreement or undertake any liability to any Respondent in connection with this RFP
and any and all proposals, whether qualified or not, may be rejected without any liability
whatsoever to any Respondent on the part of NCPA or any NCPA Member.
NCPA shall not be responsible for any costs incurred by Respondent to prepare, submit,
negotiate, contract, or participate in this RFP process.
Those Respondents who submit proposals agree to do so without legal recourse against
NCPA, its Commission, managers, agents, contractors or Member utilities for rejection of
their proposai(s) or for failure to execute an agreement for any reason. NCPA shall not be
liable to any Respondent or party at law or in equity for any reason whatsoever for any
acts or omissions arising out of or in connection with this RFP. By submitting its
proposal, each Respondent waives any right to challenge any valuation by NCPA of any
proposal of any Respondent or any determination of NCPA to select or reject any
proposal of any Respondent or take any action contemplated by this RFP, including any
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
66
right of a Respondent to intervene in any governing body proceeding for the purpose of
protesting the selection or rejection of any proposal, any other decision of NCPA
contemplated by this RFP or any resulting agreement related to a selected proposal. Each
Respondent, in submitting its proposal, irrevocably agrees and acknowledges that it is
making its proposal subject to and in agreement with the terms of this RFP and agrees
that NCPA shall be entitled to specific performance of its rights hereunder and injunctive
relief.
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
67
Exhibit G
Pro Forma Power Purchase Agreement (PPA)
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
68
ATTACHMENT C
RESOLUTION NO. 8632
.RESOLUTION OF THE COUNCIL OF THE CITY OF PALO
ALTO APPROVING THE NORTHERN CALIFORNIA POWER
AGENCY GREEN POWER PROJECT (NGPP)THIRD PHASE
AGREEMENT AND PARTICIPATION OF THE CITY OF PALO
ALTO IN THE NGPP TO FACILITATE THE PURCHASE OF
RENEWABLE ENERGY OF UP TO 15 AVERAGE MEGAWATTS
OF ENERGY OVER 25 YEARS AT AN ESTIMATED COST OF
UP TO $230 MILLION (IN 2006 DOLLARS)
WHEREAS, the City of Palo Alto ("City"), a municipal
utility and a chartered city, is a member of the Northern
California Power Agency ("NCPA") ; and
WHEREAS, the City, along with other members of NCPA,
desires to Collectively contract for or develop renewable energy
resources to meet customer electrical loads; and
WHEREAS, the City, by entering into the NGPP Third Phase
Agreement ("Agreement"), will be able to meet the City’s Long
Term Electricity Acquisition Plan ("LEAP") targets for renewable
energy, reduce reliance on fossil fuels and their associated
fuel price volatilities, assist the State of California in
meeting its renewable energy goals, lower the delivery risk by
spreading energy deliveries across multiple projects, avoid a
duplication of efforts, and achieve economies of scale; and
WHEREAS, on June-22, 2006, the NCPA Commission approved
Resolution No. 06-26, authorizing the creation of the NGPP
Program and the Agreement for Participating Members to purchase
green energy from NCPA; and
WHEREAS, NCPA is ready, willing and able to enter into
power purchase agreements on behalf of its participating
members, and it will efficiently and effectively assist in
meeting its participating members’ goals; and
WHEREAS, the City is ready, willing and able to purchase
such renewable energy supplies through NCPA power purchase
agreements with suppliers;
NOW, THEREFORE, the Council of the City of Palo Alto
does hereby RESOLVE as follows:
SECTION 1. The Council hereby approves the Northern
California Power Agency Green Power Project Third Phase
Agreement, including the delegation of authority to amend
exhibits to the Agreement,as set forth in section 10.5 of the
Agreement, and also approves the City of Palo Alto’ s
participation in the Agreement for the purchase of renewable
energy of up to 15 average megawatts of energy, within an
average procurement price cap of $70/MWh (in 2006 dollars) and a
maximum .contract price of $250/MWh for any single resource added
1
060703 cs 0072736
to the NGPP. The total cost of renewable energy purchases under
this Agreement over 25 years could be up to $230 million (in
2006 dollars) or $310 million (in nominal dollars) over 25
years.
SECTION 2. With respect to the Agreement, the Council
hereby waives the creditworthiness terms and conditions
requirements of the Palo Alto Municipal Code section
2.30.340(d) .
SECTION 3. The Council finds that the adoption of this
resolution does not constitute a project under the California
Environmental Quality Act and the CEQA Guidelines and,
therefore, no environment assessment-is required.
INTRODUCED AND PASSED: July 17, 2006
AYES:BARTON, BEECHAM, CORDELL, DREKMEIER, KISHIMOTO, KLEIN,
KLEINBERG, MORTON, MOSSAR
NOES:
ABSENT:
ABSTENTIONS
City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
APPROVED:
Manager
Director of~ilities
.Service~
060703 cs 0072736
BE IT FURTHER RESOLVED that the Commission approves the Amended NGPP
Third Phase Agreement and authorizes the General Manager to execute it on behalf of NCPA
with such non-substantive changes as may be approved by the NCPA General Counsel.
PASSED, ADOPTED and APPROVED this 29th day of November 2007, by the following
vote on roll call:
Vote
Alameda
BART
Biggs
Gridley
Healdsburg
Lodi
Lompoc
Palo Alto
Port of Oakland
Redding
Roseville
Santa Clara
Truckee Donner
Turlock
Ukiah
Plumas-Sierra
PATRICK KOLSTAD
CHAIRMAN
Abstained Absent
ATTEST: DENISE DOW
ASSISTANT SECRETARY