HomeMy WebLinkAboutAgenda Report - August 20, 2008 E-10AGENDA ITEM E4010
CITY OF LODI
COUNCIL COMMUNICATION
TM
AGENDA TITLE: Adopt a Resolution Authorizing the City Manager to Enter into an
Interconnection Agreement Between the City of Lodi and Northern California
Power Agency (NCPA) for the Existing White Slough Water Pollution Control
Facility Electric Connection (EUD)
MEETING DATE: August 20,2008
PREPARED B Y Electric Utility Director
RECOMMENDED ACTION: Adopt a resolution authorizing the City Manager to enter into an
InterconnectionAgreement between the City of Lodi and Northern
California Power Agency (NCPA) for the existing White Slough
Water Pollution Control Facility electric connection.
BACKGROUND INFORMATION: In 2004, the White Slough Water Pollution Control Facility (Plant)
made various capital improvements, significantly increasing the
Plant's electric load. The Plant had previously been served by two
Pacific Gas & Electric (PG&E) sources. The cost to increase the capacity of the two PG&E sources (plus
the ongoing energy delivery, maintenance and standby capacity charges) was judged not to be cost
effective when compared to providing service to the Plant by Lodi Electric Utility. To accomplish the
provision of such service, it was necessary to interconnectthe Lodi distribution system serving the Plant
to the NCPA's electrical facilities at the site.
On August 18, 2004, the City Council authorized a Letter of Agreement with NCPA to develop the
connection and an associated InterconnectionAgreement. Recently it was found that the Interconnection
Agreement was not brought to the City Council for approval, though the electrical connection was made.
We now ask for approval to execute the InterconnectionAgreement in order to formally document the
existing state of agreement between the parties.
FISCAL IMPACT:
FUNDING:
PREPARED BY
GFM/KwAst
None
Not applicable.
64-V,SD
George F. Morrow
Electric Utility Director
Ken Weisel, Assistant Electric Utility Director
APPROVED: �-
Blai , City Manager
AGREEMENT
FOR
INTERCONNECTION
BY AND BETWEEN
THE CITY OF' LODI
AND
THE NORTHERN CALIFORNIA
POWER AGENCY
This Agreement for Interconnection (Agreement) is entered into as of the 28" day of
October, 2004, by and between the Northern California Power Agency, a California joint powers
and public entity having its central office at 180 Cirby Way, Roseville, California 95678
(NCPA), and the City of Lodi, California, a general law California municipal corporation, having
its central office at 221 W. Pine Street, Lodi, California 95240. NCPA and LODI are
occasionally herein referred to individually as a "Party" or collectively the "Parties." This
Agreement is premised on the following:
RECITALS:
WHEREAS, NCPA provides, among other services to its membership: electric generation
facility development and power resource pooling services to the majority of its member public
entities and an associate nonprofit member, and technical, operational, and maintenance services
on behalf of the majority of member and associate member entities, for the operation and
maintenance of NCPA electric generating projects in which they are invested, as well as dispatch,
scheduling coordination, trading and risk management services, so that members of NCPA on the
whole, exercising their common powers pursuant to the Joint Exercise of Powers Act, may
supply electrical power and energy for their residential, commercial, and industrial customers on
a reliable, cost-effective, and environmentally sensitive basis, with the advantages of the
economy of scale, which may, under some circumstances, benefit all of NCPA's members; and
WHEREAS, LODI, as a member of NCPA, wishes to request that NCPA interconnect its
STIG Electrical System to the LODI distribution system so that LODI may, at its sole risk, and
without hazard to NCPA and its other members, serve its retail service load through the STIG
electrical system for the benefits of LODI's customers, although other NCPA members may not
share interests in LODI's particular effort; and
WHEREAS, this Agreement has been drawn to first protect NCPA and its members from
any exposure to liability of any kind that might result from any act or omission in the
performance of this Agreement, to the fullest extent permitted by law, due to the fact that NCPA
will be acting for the benefit of LODI and not for the benefit of any other member in its
performance of this Agreement; and
WHEREAS, LODI desires to utilize the benefits of the investment in the STIG Electrical
system, and expertise available through the auspices of NCPA, and NCPA having weighed the
consideration herein, and the protection LODI intends to provide NCPA and its other members in
this Agreement, wishes to assist LODI; and
WHEREAS, LODI has indicated that this interconnection is temporary and to remain in
place for an undetermined period of time, until a decision is made on how to permanently
interconnect the loads to be served by way of this interconnection with the remainder of LODI's
distribution system.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
conditions set forth herein, the Parties have entered into this
AGREEMENT:
ARTICLE 1— OPERATIONAL PARAMETERS
Upon mutual agreement, and subject to the General Conditions described below, NCPA
will interconnect its STIG Electrical system to the LODI Distribution System in accordance with
terms and conditions of this Agreement including the attached Schedules.
1.1 General Conditions. By reason of the interconnection established pursuant to this
Agreement, NCPA shall not be obligated to provide any services to, or undertake any
transactions for LODI, notwithstanding that fact that LODI may have completely and
faithfully complied with each and every term, condition, and covenant of this Agreement.
NCPA may decline to furnish any service or transaction requested by LODI in the sole
and absolute discretion of NCPA, acting by and through its Commission without the vote
of LODI, and such discretion of the Commission shall not be subject to review or to the
dispute resolution provisions of this Agreement.
1.2 Losses: LODI agrees to reimburse NCPA for any real power losses arising from the
interconnection.
1.3 Metering: NCPA shall install and maintain revenue meters and related communications
equipment to measure capacity, energy, real and reactive power delivered to LODI.
Meter data obtained under this section shall be adjusted to separate the impact of this
interconnection from the meter data that otherwise would have been recorded for only the
STIG electrical system according to California ISO metering protocols. An example of
the adjustments currently anticipated is include in Schedule B to this Agreement for
illustrative purposes only.
1.4 Power Factor: LODI agrees to maintain a power factor for loads on its interconnected
distribution system within the range of 95% leading or lagging.
1.5 Parallel Operation: LODI shall not simultaneously take delivery of power and energy
from the NCPA's STIG electrical system and either (1) any other delivery or distribution
system, or (2) any backup generation installed on LODI's distribution system.
1.6 Backup Generation: Prior to installing any backup generation on its distribution system,
LdDI shall notify NCPA to arrange for such generators to be installed in accordance with
prudent utility practice after safeguards are implement to insure that power does not flow
from the LODI distribution system to the STIG electrical system.
ARTICLE 2 —DELIVERY SERVICES & INTERRUPTION
2.1 Delivery Not Guaranteed: NCPA through its best efforts, will attempt to deliver a
continuous and sufficient supply of electric energy to the interconnected LODI
distribution system, but does not guarantee delivery continuity or sufficiency of supply.
NCPA will not be liable for interruption or shortage or insufficiency of supply, or any
loss or damage of any kind of character occasioned thereby, if same is caused by
inevitable accident, act of God, fire, strikes, riots, war, or any other cause except that
arising from its failure to exercise reasonable diligence.
NCPA specifically maintains the right to interrupt its service deliveries, without liability
to LODI when, in NCPA's sole opinion, such interruption is necessary for reasons
including, but not limited to, the following:
I . Safety of a NCPA employee, or the public at large.
2. Breach of code or regulation on either NCPA-owned or LODI-owned
facilities.
3. Emergency affecting or likely to affect NCPA's STIG Electrical system,
the ISO grid or any other system through which NCPA directly or
indirectly receives or supplies power.
4. Maintenance, improvements, repairs, or expansion of NCPA's STIG
Electrical system.
NCPA shall be the sole judge of whether it is operationally able to receive or deliver
electric energy through the STIG electrical system. NCPA shall not be liable to LODI,
for damages or losses resulting from interruption due to transmission constraint,
allocation of transmission or interne capacity, or other transmission related outage,
planned or unplanned.
2.2 Notice of Interruption: When NCPA deems it necessary to make repairs or
improvements to its system, NCPA will have the right to suspend temporarily the delivery
of electric energy. In all such cases, reasonable notice will be given to LODI and NCPA
will make repairs or improvements as rapidly as practicable. If practicable, and without
additional cost to NCPA, such work will be done at a time that will cause the least
inconvenience to LODI. Should NCPA be required to initiate an interruption upon order
of the ISO so work may be done on the ISO transmission grid or the Stig Electrical
system, NCPA will make best efforts attempt to provide LODI with notice, but shall not
be liable for interruption if notice cannot be provided in a timely manner.
ARTICLE 3 — DUE DILIGENCE
3.3 Continuing Disclosure. Annually LODI shall present NCPA with its audited financial
statements. NCPA may request LODI to report contemporaneously in writing on
significant events that may materially adversely affect LODI's financial capability to
timely pay and retire all of the costs and liabilities associated with this Interconnection.
ARTICLE 4 —REPRESENTATIONS AND WARRANTIES
4.1 Initial Representations and Warranties. On the Effective Date and the date of entering
into each related service hereunder, LODI represents and warrants to NCPA that:
(i) it is duly organized, validly exiting and in good standing under the laws of
California and of the United States;
(ii) it has all regulatory authorizations necessary for it to legally perform its
obligations under this Agreement;
(iii) the execution, delivery and performance of this Agreement and are within its
powers, have been duly authorized by all necessary action and do not violate any
of the terms and conditions in its governing documents, any contracts to which it
is a party or any law, rule, regulation, order or the like applicable to it;
(iv) this Agreement and each other document executed and delivered in accordance
with this Agreement constitutes its legally valid and binding obligation
enforceable against it in accordance with its terms; subject to any Equitable
Defenses.
(v) it is not Bankrupt and there are no proceedings pending or being contemplated by
it or, to its knowledge, threatened against it which would result in it being or
becoming Bankrupt;
(vi) there is not pending or, to its knowledge, threatened against it or any legal
proceedings or investigations that could materially adversely affect its ability to
perform its obligations under this Agreement;
(vii) no Event of Default or Potential Event of Default with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result of its
entering into or performing its obligations under this Agreement;
(viii) it is acting for its own account, has made its own independent decision to enter
into this Agreement and as to whether this Agreement is appropriate or proper for
it based upon its own judgment, is not relying upon the advice or
recommendations of NCPA in providing advice of any kind, and LODI is capable
of assessing the merits of and understanding, and understands and accepts, the
terms, conditions and risks of this Agreement;
(ix) it has entered into this Agreement in connection with the conduct of its public
service utility enterprise;
4.2 Further Representations and Warranties. On the Effective Date, LODI further
represents and warrants to NCPA that: (i) all acts necessary to the valid execution,
delivery and performance of this Agreement, including without limitation, competitive
bidding, public notice, election, referendum, prior appropriation or other required
procedures has or will be taken and performed as required under the laws of the State of
California and the charter, ordinances, bylaws or other regulations, (ii) all persons making
up the governing body of LODI are the duly elected or appointed incumbents in their
positions and hold such positions in good standing in accordance with the state and local,
and other applicable law, (iii) entry into and performance of this Agreement by LODI are
for a proper public purpose within the meaning of all relevant constitutional, organic or
other governing documents and applicable law, (iv) the term of this Agreement does not
extend beyond any applicable limitation imposed by the relevant constitutional, organic
or other governing documents and applicable law, (v) LODI's obligations to make
payments hereunder are unsubordinated obligations and such payments are (a) operating
and maintenance costs (or similar designation) which enjoy first priority of payment at all
times under any and ail bond ordinances or indentures or agreements to which it is a
party, and all other relevant constitutional, organic or other governing documents and
applicable law or (b) otherwise not subject to any prior claim under any and all bond
ordinances or indentures or agreements to which it is a party, and all other relevant
constitutional, organic or other governing documents and applicable law and are available
without limitation or deduction to satisfy all of LODI's obligations hereunder or (c) are to
be made solely from a special fund of LODI set aside for this Agreement, (vi) entry into
and performance of this Agreement by LODI will not adversely affect the exclusion from
gross income for federal income tax purposes of interest on any obligation of LODI or
NCPA otherwise entitled to such exclusion, and (vii) obligations to make payments
hereunder do not constitute any kind of indebtedness of LODI or create any kind of lien
on, or security interest in, any property or revenues of LODI which, in either case, is
proscribed by any provision of any relevant constitutional, organic or other governing
documents and applicable law, any order or judgment of any court or other agency of
government applicable to it or its assets, or any contractual restriction binding on or
affecting it or any of its assets.
4.3 Primacy of NCPA Projects. Notwithstanding the availability of NCPA personnel and
equipment LODI acknowledges and agrees that the first priority for NCPA personnel are
NCPA projects in general, and specifically in this case the NCPA STIG project in which
more than one member participates, and that the Interconnection that NCPA provides
under this Agreement is subordinate to NCPA's duties to serve the other members.
ARTICLE 6 — BALANCING ACCOUNT AND SECURITY
6.1 Balancing Account. The Balancing Account is an account established at NCPA
pursuant to this Agreement. The Balancing Account is established to: (i) make timely
payments to NCPA under this Agreement and to a Counterparty pursuant to a service
hereunder and to protect NCPA from potential Member default by providing funds and
time to cure, (ii) to bridge timing differences between the receipt of payments from LODI
and the date payments are due a Counterparty, (iii) satisfy any security deposit
requirements, and (iv) provide security against Member default.
6.2 Initial Amount. Before the effective date of a service hereunder, LODI shall deposit in
the Balancing Account an amount equal to its three highest months of projected
Counterparty invoices for the succeeding twelve (12) months. NCPA shall maintain a
detailed accounting of the Balancing Account. Interest earned on the Balancing Account
shall be credited to LODI. Any losses in the Balancing Account, due for example to the
compulsory sale of investments to comply with a requirement of the Counterparty, shall
be allocated to LODI.
6.3 Periodic Reviews. Prior to the effective date of a service hereunder and at least quarterly
thereafter, NCPA shall review the balances in the Balancing Account to ensure the
amount is equal to the current projection of the three highest months of LODI's projected
Counterparty invoices for the succeeding twelve months. Any funds in excess of one
hundred ten per cent (110%) of this amount shall be credited to LODI. If the funds on
deposit in the Balancing Account are less than ninety per cent (90%) of this amount,
NCPA shall prepare an invoice to LODI who shall remit such funds within thirty (30)
days of the invoice date.
6.4 Emergency Additions. In the event that the funds in the Balancing Account are
insufficient to allow payment of a Counterparty invoice, NCPA shall notify LODI and
then prepare and send a special or emergency assessment to LODI.
6.5 Return of Funds. On the termination of this Agreement and all services hereunder,
LODI may apply to NCPA for the return of its Balancing Account funds ninety (90) days
after the effective date of such termination. NCPA shall, in its sole discretion, as
determined by a vote of the Commission, excluding the vote of LODI, estimate the then
outstanding liabilities of LODI, including any estimated contingent liabilities, such as by
way of example Counterparty invoices subject to dispute or to revision by the
Counterparty or the Federal Energy Regulatory Commission, and retain all such funds
until all such liabilities have been fully paid or otherwise satisfied in full. NCPA may
apply any remaining Balancing Account funds to any remaining obligation of LODI,
including but not limited to revised Counterparty invoices.
6.6 Counterparty Security Deposit. Any security or other deposit required by a third party
for a service hereunder shall be provided by LODI prior to the date NCPA provides any
Agency Services and shall be maintained as may be required thereafter.
6.7 Changes in Security. Any changes in security or other deposits required by the
Counterparty may be released by NCPA from the Balancing Account, and NCPA shall
invoice LODI within ten (10) working days for the total NCPA released to the
Counterparty.
ARTICLE 7 — PAYMENTS AND DEFAULTS
7.1 Billing and Payment. Monthly billing statements prepared by NCPA shall be sent to
LODI showing LODI's unpaid balance for services hereunder and other expenses relating
to this Agreement incurred by NCPA for the previous month, This information may be
provided on monthly billing statements prepared by NCPA pursuant to other Project
Agreements. NCPA will provide the monthly billing statements electronically if
requested by LODI; otherwise NCPA shall mail the statements First Class, U.S. Postal
Service.
7.2 Application of Balancing Account. NCPA may apply LODI's Balancing Account to the
payment of any portion of the monthly billing statement. Application of such funds shall
not relieve LODI from any late payment charges.
7.3 Late Payments. Amounts shown on each billing statement are due and payable at the
time noted on the invoice, but not later than thirty (30) days after the date of the invoice,
except that any amount due on a Friday, holiday or weekend may be paid on the
following working day. Any amount due and not paid by LODI shall bear interest at the
per annum prime rate (or reference rate) of the Bank of America NT & SA then in effect,
plus two percent per annum computed on a daily basis until paid.
7.4 Settlement Data. NCPA will make settlement data, including underlying data received
from the California ISO, available to LODI.
7.5 Audit Rights. LODI shall have the right to audit at its expense any data created or
maintained by NCPA pursuant to this Agreement on thirty (30) days written notice,
unless otherwise agreed by LODI and NCPA.
7.6 Failure To Pay. If LODI fails to pay any amount due to NCPA within thirty (30) days of
the date of the estimated or final invoice enumerating such amounts, LODI is in default
and material breach under this Agreement.
7.7 Other Material Breaches. If LODI is in default or in breach of any of its covenants
under any other agreement with NCPA, it shall also be considered in material default of
this Agreement.
7.8 Cure Period. Upon written notice by NCPA, LODI shall cure any default within five (5)
working days.
7.9 Cure of Defaults. A default shall be cured by the payment of any monies due NCPA,
including any late payment charges, and repayment of any funds drawn from the
Balancing Account. A default under any other agreement with NCPA shall be cured by
compliance with the covenant.
7.10 Remedies in the Event of a Material Default. NCPA may suspend the provision of any
Agency Service or Advisory Service to LODI with a default which has not been cured
within the Cure Period, including deducting sums in default from the Balancing Account
of the defaulting Member, demanding further assurances, and taking any other legal or
equitable action before or after the Cure Period to compel the correction of the default, as
for example, to mandate the collection of a surcharge to produce Revenues to secure the
cure of the default, (and the selection of one remedy shall not preclude the use of other
remedies), on behalf of NCPA and other Members (in which event the defaulting
Member shall not have the right to vote while such defaulting Member is in material
default as determined by the NCPA Commission).
7.11 Obligations in the Event of Default. In the event that LODI's share of the Balancing
Account is insufficient to cover all invoices related to a service provided hereunder to the
defaulting Member, (i) the defaulting Member 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 Balancing 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, repairing its Electric System, and
taking all such other action as will cure the default quickly; and provided, however, (ii)
that neither NCPA nor any other member shall be liable under this Agreement for the
obligations of the defaulting Member, and LODI shall be solely responsible and liable for
performance of its obligations under this Agreement.
ARTICLE 8 — TERM OF THIS AGREEMENT
8.1 Term of This Agreement. This Agreement shall remain in effect for so long as the
NCPA STIG electrical system remains interconnected to the LODI distribution system.
8.2 Termination: Either party may terminate this agreement upon six months' written notice
to the other, provided however, all financial obligations incurred hereunder shall remain
until satisfied.
ARTICLE 9 — NO IMMUNITY CLAIM
9.1 No Immunity Claim. LODI warrants and covenants that with respect to its contractual
obligations hereunder and performance thereof, it will not claim immunity on the grounds
of sovereignty or similar grounds with respect to itself or its revenues or assets from (i)
suit, (ii) jurisdiction of a court (including a court located outside the jurisdiction of its
organization), (iii) relief by way of injunction, order for specific performance or recovery
of property, (iv) attachment of assets, or (v) execution or enforcement of anyjudgment.
ARTICLE 10 —MEMBER COVENANTS
The definitions in this Article 10 apply to the covenants in section 10.3 and elsewhere in
this Agreement.
10.1 Electric System. Electric System means, with respect to LODI, all properties and assets,
real and personal, tangible and intangible, of LODI now or hereafter existing, used or
pertaining to the generation, transmission, transformation, distribution and sale of electric
capacity and energy, including all additions, extensions, expansions, improvements and
betterments thereto and equipment thereof; provided, however, that to the extent LODI 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 LODI'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 Electric System.
10.2 Revenues. Revenues means, with respect to LODI, all income, rents, rates, fees, charges,
and other moneys derived by LODI from the ownership or operation of its Electric
System, including, without limiting the generality of the foregoing, (i) 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, (ii) 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 (iii) the proceeds derived by LODI directly or indirectly
from the sale, lease or other disposition of all or a part of the Electric System, but the
term Revenues shall not include (a) customers' deposits or any other deposits subject to
refund until such deposits have become the property of LODI or (b) contributions from
customers for the payment of costs of construction of facilities to serve them.
10.3 Member Covenants. LODI covenants and agrees to (i) establish and collect rates and
charges Fcr the services and commodities provided by its Electric System sufficient to
provide Revenues adequate to meet its obligations under this Agreement and to pay all
other amounts payable from, and all lawful charges against or liens upon, the Revenues;
(ii) make payments under this Agreement from the Revenues of, and as an operating
expense of, its Electric System; (iii) make payments under this Agreement whether or not
there is an interruption in, interference with, or reduction or suspension of services
provided under this Agreement (such payments are not subject to any reduction, whether
by offset or otherwise, and regardless of whether any dispute exists); and (iv) 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
ARTICLE 1 I — MAINTENANCE AND OPERATION
12.1 Maintenance. LODE shall be responsible for maintenance of their electrical distribution
system on the load side of the point of interconnection, as that point is specified in
Appendix A; provided however, that NCPA shall own, operate, test, and maintain all
metering equipment necessary for billing and power measurement in accordance with
applicable control area requirements. NCPA's ownership, operation, and maintenance
rights with respect to such metering equipment shall exist notwithstanding that: (i) LODI
agrees to pay for all costs of acquiring, testing, operating and maintaining the meter
equipment, and (ii) the metering equipment is physically located on LODI's distribution
system or on the load side of the point of interconnection. NCPA shall operate and
maintain interconnection facilities installed on the line side of the point of
interconnection and all such equipment and facilities located on its premises at the
expense of LODI.
12.2 Cooperation. The parties agree to coordinate maintenance of their respective electrical
systems in accordance with good utility practice and applicable control area requirements
12.3 Access. Each party shall provide the other with the right of access to their respective
premises so that each party can perform its obligations under this agreement. Access
shall be upon reasonable notice and each party may designate representatives to be
present during periods of access, whether for inspection, testing, maintenance, or
operations.
12.4 Notice of Operational Change. LODI agrees notify NCPA notice of any operational
changes on its interconnected distribution system which could affect the NCPA, including
the including the of generation facilities.
12.5 Generators. LODI shall not connect any generators to the its electrical distribution
system on the load side of the point of interconnection with out the advance written
consent of NCPA, provided that such consent shall unreasonably withheld. Any such
generator connection shall be performed in accordance with good utility practice,
applicable control area standards, and consistent with NCPA's interconnection agreement
with PG&E.
ARTICLE 12 — LITIGATION
12.1 Litigation. In the event of litigation, dispute resolution, governmental inquiry, including
investigations or legislative inquiries, relating to any matter involving this Agreement,
NCPA may select Counsel of its choice to advise and represent NCPA and LODI, and
LODI shall pay NCPA for such expenses, as billed pursuant to this Agreement.
ARTICLE 13 — UNCONTROLLABLE CIRCUMSTANCES — SUSPENSION OF
PERFORMANCE
13.1 Definition. In this Agreement "Uncontrollable Circumstances" shall mean acts, events or
conditions not reasonably foreseeable by a Party which prevent the affected Party from
performing its obligations under this Agreement, except the obligation for the payment of
money, if and only if such acts, events or conditions and their effects (i) are beyond the
reasonable control of such Party (or any third Party over whom such Party has control),
(ii) are not reasonably avoidable, (iii) cannot be mitigated or eliminated through
reasonably available alternative actions, and (iv) are not a result of the willful or negligent
action or inaction of such Party or of any third Party over whom such Party has control:
Examples of Uncontrollable Circumstances include, but are not limited to, the following:
13. 1.1 An act of God, landslide, lightning, earthquake, fire, explosion, storm, flood,
weather conditions precluding construction activity from progressing;
13.1.2 Acts of a public enemy, war, blockade, insurrection, strike, riot or civil
disturbance, sabotage or similar occurrence or a mandate, directive, order, or
restraint of any governmental, regulatory or judicial body or agency, or the
exercise of the power of eminent domain, police power, inverse condemnation or
other taking by or on behalf of any public, quasi -public or private entity; or
13.1.3 A Change in Law. In this Agreement, a Change in Law shall mean a material
change in the requirements of the Scope of Services or the operation or
maintenance of the Project, made by a governmental authority, that becomes
effective on or after the date of this Agreement.
13.2 Suspension of Performance. The suspension of performance due to Uncontrollable
Circumstances shall be no longer than reasonably required, and the Party suffering the
Uncontrollable Circumstances shall use its best reasonable efforts to overcome such
circumstances and partially or fully remedy its inability to perform. The Party suffering
the Uncontrollable Circumstance shall give the other Party notice that is reasonable under
such circumstances, including written notice as soon as practicable.
ARTICLE 14 —INDEMNIFICATION, DEFENSE, RELEASE,
AND COVENANT NOT TO SUE
14.1 Indemnity Obligation of Member. LODI hereby assumes all responsibility and liability
for the Interconnection and related services provided under the Agreement as if they were
performed by LODI's employees and accordingly intends to protect NCPA, its member
entities, governing officials, officers, agents, and employees against claims or losses of
any kind whatsoever resulting from Interconnection and related services provided
pursuant to this Agreement. LODI is willing to take on such complete responsibility as an
inducement to NCPA to enter into this Agreement. NCPA would not enter into this
Agreement absent such inducement for NCPA's sole source of revenue comes from its
members, which cannot be exposed to the risks of loss or damage due to this Agreement
or services hereunder. Thus, LODI (the "Indemnifying Party") agrees to indemnify,
defend and hold harmless WCPA and its members, including their respective governing
officials, officers, agents, and employees ("Indemnified Party or Parties"), from and
against any and all claims, suits, losses, damages, expenses and liability of any kind or
nature, including, without limitation, reasonable attorneys` fees ("Claim" or collectively
"Claims") to the extent caused by any breach of contract, negligence, active or passive,
gross negligence or willful misconduct of the Indemnifying Party, its officers, employees,
subcontractors or agents, to the maximum extent permitted by law, but only as to Claims
related to this Agreement.
14.2 Notice and Defense. Promptly after receipt by an Indemnified Parry of any Claim or
notice of a Claim or the commencement of any action or administrative or legal
proceeding or investigation as to which the indemnity provided for in section 14.1 may
apply, the tndemnified Party shall notify the Indemnifying Party of such fact. The
Indemnifying Party shall have the right to assume the defense thereof with counsel
designated by the Indemnifying Party and satisfactory to the Indemnified Party; provided,
however, that if the defendants in any such action include both the Indemnified Party and
the Indemnifying Party, and the Indemnified Party shall have reasonably concluded that
there may be legal defenses available to it and/or other Indemnified Parties which are
different from or additional to those available to the Indemnifying Party, the Indemnified
Party or Parties shall, at the expense of the Indemnifying Party, have the right to select
separate counsel to assert such legal defenses and to otherwise participate in the defense
of such action on behalf of such Indemnified Party or Parties.
14.3 Failure to Assume Defense. Should any of the Indemnified Parties be entitled to
indemnification under section 14.1 as a result of a Claim by a third Party, and should the
Indemnifying Party fail to assume the defense of such Claim after reviewing notification
thereof as provided in section 14.2, then such Indemnified Party may, at the expense of
the Indemnifying Party, contest or settle such Claim. To the extent that any of the
Indemnified Parties is required to initiate and prevails in legal proceedings against the
Indemnifying Party to enforce rights under this Article, the Indemnifying Party shall pay
all costs and attorneys' fees incurred by the Indemnified Party in enforcing its rights.
14.4 Release and Covenant Not to Sue. LODI hereby FOREVER RELEASES and
DISCHARGES NCPA, its members, governing officials, officers, agents, employees, and
subcontractors (Released Parties) from any and all liabilities, claims, demands or causes
of action that LODI may hereafter have for injuries, damages, or losses of any kind
whatsoever arising out of this Agreement or services hereunder, performed or not
performed, or inadequately performed by NCPA, including, but not limited to, losses
caused by the PASSIVE OR ACTIVE NEGLIGENCE of the Released Parties or hidden,
latent, or obvious defects in equipment or materials used.
LODI understands and acknowledges that the Project and the Services have inherent
dangers that no amount of care, caution, instruction or expertise can eliminate and LODI
expressly and voluntarily ASSUMES ALL RISK of death, personal injury, damages or
losses of any kind whatsoever sustained in connection with the Project and the Services,
including the risk of passive or active negligence of the Released Parties, or hidden,
latent, or obvious defects in the materials used.
LODI acknowledges the enforceability of the foregoing release under Paralift, Inc. v.
Superior Court (1993) 23 Cal.App.4th 748 (Paralift Case). LODI hereby FOREVER
COVENANTS NOT TO SUE the Released Parties for any injuries, damages, or losses, or
liabilities, claims, demands or causes of action related thereto, to which the foregoing
release applies, even if the Paralift Case is overruled or affected by a judicial decision or
legislation, state or federal, or by an international treaty.
ARTICLE 15 —GENERAL PROVISIONS
15.1 Independent Contractor. NCPA shall be an independent contractor with respect to the
Services to be performed hereunder. Neither NCPA nor its subcontractors, nor their
agents or employees, shall be deemed to be the servants, employees, or agents of LODI,
notwithstanding Article 14.
15.2 Occupational Safety and Health Act. LODI shall design, equip, and maintain and
operate its Election System in accordance with all applicable rules, regulations, orders,
standards and interpretations promulgated under the Occupational Safety and Health Act
(1970) (OSHA), as amended and in effect as of the day of execution of this Agreement or
such similar act as adopted by the State of California, if applicable.
15.3 Proprietary Information. To the extent permitted by law, in particular the California
Public Records Act, the Parties shall maintain the confidentiality of proprietary
information.
15.4 Patents. LODI shall defend, indemnify and hold harmless NCPA from any suit or action
brought against NCPA based on a claim that any item of the Project, or materials and
equipment procured therefore, or any part thereof, furnished or specified by NCPA or
LODI hereunder or any use thereof for purposes of the Project, constitutes an
infringement of any claim of patent.
15.5 Binding Effect: Successors and Assigns.
15.5.1 This Agreement shall be binding upon and shall inure to the benefit of the Parties
hereto and their respective successors and permitted assignees.
15.5.2 Neither Party hereto shall assign or convey any of its rights, titles or interests
under this Agreement without the prior written consent of the other Party hereto.
15.6 Not for Benefit of Third Parties. This Agreement and each and every provision thereof
is for the exclusive benefit of LODI and not for the benefit of any other parry except that
NCPA and the other member entities are intended to benefit from the protections
provided them in this Agreement in Article 14.
15.7 Choice of Law. This Agreement is made and is to be performed in California and any
dispute arising there from shall be governed and interpreted in accordance with California
laws.
15.8 Article Headings and Subheadings. All article headings and subheadings are inserted
for convenience only and shall not affect any construction or interpretation of this
Agreement.
15.9 No Waiver. No waiver by a Party of any breach or default by the other Party of its
obligations hereunder shall be deemed or construed to be a consent or waiver to or of any
other breach of default in the performance by such other Party of the same or any other
obligations of such other Party hereunder. The giving of a waiver by a Party in any one
instance shall not limit or waive the necessity to obtain such Party's waiver in any future
instance. No waiver of any rights under this Agreement shall be binding unless it is in
writing signed by the Party waiving such rights.
15.10 Good Faith and Fair Dealing. The Parties agree to deal fairly and to act in good faith in
the performance or enforcement of this Agreement. Wherever this Agreement requires a
consent or approval of a Party hereto, such consent or approval shall not be unreasonably
withheld or delayed except as otherwise specifically provided herein.
15.11 Severability. In the event that any of the provisions of this Agreement, or portions or
applications thereof, are held to be unenforceable or invalid by any court of competent
jurisdiction, LODI and NCPA shall negotiate an equitable adjustment in the provisions of
this Agreement with a view toward effecting the purposes of this Agreement, and the
validity and enforceability of the remaining provisions, or portions or applications
thereof, shall not be affected thereby.
15.12 Legal Capacity. Each Party represents and warrants that it has the legal capacity to enter
into this Agreement and to perform all obligations undertaken herein.
15. I3 No Counterparts. This Agreement and any amendments will not be executed in
counterparts but in one or more duplicate originals which shall constitute but one and the
same instrument.
15.14 Further Assurances. If either Party reasonably determines that any further instruments,
representation of assurance of payment, or performance, or any other things are necessary
or desirable to carry out the terms of this Agreement, the other Party will execute and
deliver all such instruments and assurances and do all such things as the first Party
reasonably deems necessary or desirable to carry out the terms of this Agreement.
15.15 Hazardous Waste. Although it is not presently contemplated that any this Agreement or
services hereunder will involve "Hazardous Waste," if on the contrary they do, then this
section 15.15 shall apply. "Hazardous Waste" means (A) any product, substance,
chemical, element, compound, mixture, solution, material, pollutant, contaminant or
waste whose presence, nature, quantity or intensity of use, manufacture, processing,
treatment, storage, disposal, transportation, spillage, release, or effect, either by itself or
in combination with other materials, is regulated, monitored, or subject to reporting by
any federal, state or local government entity; (B) those terms that are included within the
definitions of "hazardous substances", "hazardous materials", "hazardous waste",
"extremely hazardous substances", "toxic substances", or "oil and hazardous substances",
as defined in one or more of the following environmental laws: the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Sec. 9601 et seq.
("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of
1986 ("SARA"); the Emergency Planning and Community Right -to -Know Act, 42 U.S.C.
Sec. 11001 et seq. (` EPCRTKA"); the Resource Conservation and Recovery Act, 42
U.S.C. Sec. 6901 et seq. ("RCRA"); the Toxic Substances Control Act, 15 U.S.C. Sec.
2601 et seq. ("TSCA"); the Federal Water Pollution Control Act, 33 U.S.C. Sec. 1251
et seq. (the "Clean Water Act"); the Clean Air Act, 42 U.S.C. Sec. 7401 et seq. ("CAA");
the Hazardous Materials Transportation Act, 49 U.S.C. Sec. 5101 et seq. ("HMTA"); the
Safe Drinking Water Act, 42 U.S.C. Sec. 300f et seq. ("SDWA"), or comparable state
cleanup statutes, and in the regulations promulgated pursuant to said laws, all as amended
from time to time; or (C) any material, pollutant, substance or waste that comprises, in
whole or in part, includes, or is a by-product or constituent of (i) petroleum (including
crude oil or any fraction thereof that is not specifically listed or designated as a hazardous
substance, and natural gas, natural gas liquids, liquefied natural gas, or synthetic gas
usable for fuel), (h) asbestos, (iii) polychlorinated biphenyls, (iv) flammablesor
explosives, (v) biochemical agents, or (vi) radioactive materials.
If, during the course of performing under this Agreement, either Party becomes aware of
any Hazardous Waste that exists on or under the location of the Interconnection or related
services, whether or not created or brought on the location by a Party, the Party that so
became aware shall report such condition to LODI in writing immediately and before
disturbing (or further disturbing) the Hazardous Waste. NCPA shall not be liable for any
Hazardous Waste on or under the location notwithstanding the fact that NCPA may have
created, brought on, or released the Hazardous Waste into, over, on, or under the location.
LODI shall be solely liable for any Hazardous Waste at the location because of NCPA or
any of its employees or subcontractors, and LODI shall perform all cleanup, removal,
remediation and disposition services with respect thereto. In the event NCPA encounters
Hazardous Waste at the location, NCPA shall take reasonable actions necessary to
mitigate costs to LODI or liability of LODI due to such Hazardous Waste. The cost of
actions taken by NCPA pursuant to this section shall be fully reimbursed by LODI to
NCPA.
15.16 Status of Parties and Regulatory Compliance. The Parties acknowledge that this
Agreement is formed between two public agencies. Neither Party shall have any claim
against LODIs, governing officials, officers, employees or agents of either Party.
LODI is subject to the regulatory compliance requirements of several agencies. LODI
shall be solely responsible for, and shall reimburse NCPA for any costs of compliance
with any permits or license conditions, including any fines or penalties, to the maximum
extent permitted by law.
15.17 NCPA's Organization. LODI is responsible for assuring for itself that NCPA's
personnel are appropriately trained, educated, and skilled to competently perform the
Services. LODI acknowledges and agrees that NCPA makes no warranties or
representations regarding the qualifications of its employees, agents, and subcontractors.
15.18 Acknowledgments and Interpretation. The Parties acknowledge and agree that the
terms and conditions of this Agreement have been freely and fairly negotiated. The
Parties acknowledge that in executing this Agreement they rely solely on their own
judgment, belief, and knowledge, and such advice as they may have received from their
own counsel, and they have not been influenced by any representation or statements made
by any other Party or its counsel. No provision in this Agreement is to be interpreted for
or against any Party because that Party or its counsel drafted such provisions.
15.19 Default Termination. Upon the occurrence of a material default, the non -breaching
Party shall notify in writing the breaching Party of its intent to terminate this Agreement
if the breach is not cured within thirty (30) days. If the breaching Party does not cure the
event of default within such thirty (30) day period, the non -breaching Party may
immediately terminate this Agreement for Default. Written notice of termination shall be
delivered to the breaching Party at the address shown on page 2 of this Agreement or as
changed, as provided therein.
15.20 Default Termination Remedies. In the event of a default termination for material
breach or abandonment by LODI, NCPA may by appropriate court action or actions,
either at law or in equity, preserve its position to recover damages and expenses
associated with the breach; and/or pursue, concurrently or separately, other remedies
available in law, in equity or in bankruptcy in anticipation of pursuing its remedies
pursuant to Article 16 of this Agreement.
15.21 Survival. The terms of this Agreement shall survive any termination or cancellation
hereof to the extent necessary to allow a Party to enforce any remedy granted hereunder in
connection with such termination or cancellation. The terms of Article 14 of this
Agreement, entitled "Indemnification, Defense, Release, and Covenant Not to Sue" shall
survive any termination or cancellation, in perpetuity as to the Release, and otherwise for
ten (10) years and one day after the effective date of termination or cancellation.
ARTICLE 16 —DISPUTE RESOLUTION
16.1 Negotiations. The Parties will attempt in good faith to resolve through negotiation any
dispute, arising out of or relating to this Agreement. Either Party may initiate
negotiations by providing written notice in letter form to the other Party, setting forth the
subject of the dispute and the relief requested. The recipient of such notice will respond in
writing within five (5) days with a detailed statement of its position on, and
recommended solution to, the dispute. If the dispute is not resolved by this exchange of
correspondence, then representatives of each Party with full settlement authority will
meet at a mutually agreeable time and place within ten (10) days of the date of the initial
notice in order to exchange relevant information and perspectives, and to attempt to
resolve the dispute. If the Parties are unable to resolve the dispute at the meeting by
negotiations, they shall consider mediation.
During any dispute and negotiation LODI shall continue to timely pay NCPA for the
Interconnection and related services rendered hereunder for which obligations remain
unsatisfied, even though such dispute may concern those services. NCPA agrees to
continue performing the services, provided that no payment due from LODI is overdue.
16.2 Mediation. The Parties agree that any and all disputes arising out of or relating to this
Agreement that are not resolved by their mutual agreement after negotiations pursuant to
section 16. 1, should be submitted to mediation before JAMS, or its successor or similar
alternative dispute resolution (ADR) organization of respected, retired judges, or to a
private judge, as LODI may determine, in its reasonable discretion, and with the written
consent of NCPA, provided that LODI will be responsible for all of the expenses of
mediation. Either Party may commence the mediation process called for in this
Agreement by filing a written request for mediation with JAMS, its successor, or another
ADR organization or private judge with a copy to the other Party. The Parties agree that
they will participate in the mediation in good faith when and if LODI determines to
invoke mediation as a dispute resolution remedy, at its expense.
16.3 Waiver of Certain Judicial Rights. If the Parties fail to either negotiate or mediate a
mutually satisfactory resolution of any dispute, then upon written notice given twenty
(20) days in advance, either Party may terminate this Agreement, subject to any unpaid or
un -reimbursed compensation or costs payable by LODI to NCPA, and without affecting
the survival of Article 14, entitled "Indemnification, Defense, Release, and Covenant Not
to Sue" for its full term, notwithstanding any default hereunder by NCPA. The Parties
agree not to, and covenant not to sue, and waive their respective rights thereto.
ARTICLE 17 — LIMITATION OF LIABILITY
17.1 Limitation of Liability. To the extent the law allows, NCPA, its members, governing
officials, officers, employees, and agents shall have no liability to LODI under this
Agreement with respect to all claims however caused, arising out of the performance or
non-performance of the Services and obligations under this Agreement, whether based in
contract, warranty, tort (including negligence), strict liability, or otherwise, including
without limitation, liability for consequential damages pursuant to Article 18, NCPA shall
not be required to carry any insurance, and even if insurance is carried by NCPA, such
insurance shall not be available to LODI for any claim, death, damages, injuries, losses of
any kind whatsoever, unless, and solely to the extent, that LODI procures such insurance
of its own accounts, and pays, and is solely responsible for any and all premiums and
costs related to such coverage. If notwithstanding the foregoing limitations of this Section
17. 1, liability is imposed, then such total liability shall be limited to the net present value
of the expertise NCPA gained through this Agreement that is of value to its other
members.
ARTICLE 18— CONSEQUENTIAL DAMAGES
18.1 Consequential Damages. NCPA, its members, governing officials, officers, employees,
and agents (excluding counterparties) shall not be liable to LODI, for incidental, indirect,
punitive, exemplary, special or consequential loss or damage arising out of or relating to
this Agreement, including, but not limited to, loss of use, customer claims and damages,
loss of revenue, loss of power sales, loss of electric system reliability, outages and
cascading disturbances, principal office expenses, delay, loss by reason of plant shutdown
or inability to operate, increased cost of operating and maintaining the Project, debt
service, rental payments or contractual damages incurred by LODI or to others. LODI is
and will remain through the survival provisions of Article 15 of this Agreement, solely
responsible for such risks, losses, damages and costs, however described; including
consequential damages that may be suffered by NCPA, its members, governing officials,
officers, employees, and agents (excluding counterparties).
IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement on the Effective
Date, having acknowledged and accepted the terms, conditions, promises, and covenants of this
Agreement, as evidenced by the following signatures of the representatives of the Parties, who
are represented and warranted to be fully and lawfully authorized, by all necessary official action,
to execute and deliver this Agreement.
11/ rafflHIT",,
CITY OF LODI
M.
Name: Blair King
NCPA:
NORTHERN CALIFORNIA POWER
AGENCY
Nan
Title: City Manager Title: _ C-
k"O,,A-LRcoqr
APPROVED AS TO FORM:
APPROVED AS TO FORM:
By. By
ep en c wa auer
Michael F. Dean
Attorney
NCPA Member
ATTEST:
By:
Randi Johl
Clerk
NCPA General Counsel
APPENDIX A — ONE -LINE DIAGRAMS
Figure 1 — NCPA STIG Electrical System after Interconnection
Figure 2 — NCPA STIC Electrical System before Interconnection
APPENDIX B — METER DATA PROTOCOLS & ADJUSTMENTS
LODI is requesting interconnection to our Stig electrical system to temporarily supplement their
interconnection to PG&E and existing service via the White Slough Substation. Once the Stig
interconnection is completed, the breakers will be opened on the White Slough lines and that
portion of the LODI distribution system containing their wastewater treatment plant load will be
fed directly from the Stig electrical system. However, with the consent of PG&E the White
Slough service will remain as an emergency backup should delivery service be unavailable from
the Stig electrical system.
The ISO model needs the logic below added into NCPA's MSSA. The current treatment of
White Slough should remain the same.
To insure that the impact of the interconnection is accurately recorded, during operation of the
Stig generator, the output of the generator will need to be increased by the load recorded on the
new meter being placed between Stig and the LODI Wastewater Treatment plant. The
mathematical adjustments involved to accurately account for all the components of load and
generation on the interconnected Stig/LODI systems are shown below.
Grid --- <--- M1 ---- > --- I Stig Unit y ------ M2 --- > --- I TreatmentPlant I---breaker--<---Existing White Slough
meters (5840502, 5840503)
M I is the existing ISO -polled meter on the grid side of Stig, bi-directional.
M2 is the new ISO -polled meter between Stig and the Treatment plant, Load only.
Note that M2 will include losses when the Stig is off-line via breaker 52G. This will make the Treatment
load a wholesale load.
When Stig is not generating, M I i n (total station service) will be greater than M2.
ISOTreatmentLoad = M2 + 5840502 + 5840503
Total Stig gen = max(M1 out + ISOTreatmentLoad - MIIn, 0) If generating then Total Gen else 0
PG&EStigSS = max((M1 in - ISOTreatmentLoad), 0) If generating then 0 else M I in - M2 (Net
SS for Stig)
RESOLUTION NO. 2008-162
A RESOLUTIONOF THE LODI CITY COUNCIL AUTHORIZING
THE CITY MANAGER TO ENTER INTOAN INTERCONNECTION
AGREEMENT BETWEEN THE CITY OF LODI AND NORTHERN
CALIFORNIA POWERAGENCY FORTHE EXISTINGWHITE
SLOUGH WATER POLLUTION CONTROL FACILITY
ELECTRIC CONNECTION
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby
authorize the City Manager to execute an Agreement for Interconnection by and
between the City of Lodi and the Northern California Power Agency (NCPA) relating to
an electric connection between the NCPA Combustion Turbine No. 2 Project (STIG) and
the Lodi White Slough Water Pollution Control Facility.
Dated: August 20, 2008
hereby certify that Resolution No. 2008-162 was passed and adopted by the
Lodi City Council of the City of Lodi in a regular meeting held August 20, 2008, by the
following vote:
AYES: COUNCIL MEMBERS —Hansen, Hitchcock, Johnson, Katzakian,
and Mayor Mounce
NOES: COUNCIL MEMBERS— None
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS — None
W5��
RANDI JOHL
City Clerk
2008-162