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HomeMy WebLinkAboutAgenda Report - May 20, 1992 (73)4 AGENDA TITLE: MIDWAY -SUNSET THIRD PHASE ANENT MEETING DATE May 20, 1992 SUBMITTED BY: Electric Utility Director RECOWENDED ACTION: Approve the Midway -Sunset Third Phase Agreement and authorize the City Manager and City Clerk to execute the Agreement. B4C GRCIND INFORMATION: Midway -Sunset Cogeneration Company (MSCC) , a cogenerator, proposes to sell 30 Mid Off -Peak energy to Northern California Power Agency (NCPA) at Midway Substation. This sale would consist of approximately 165,000 mWh per year of off-peak energy fcm an existing enhanced oil recovery facility near Bakersfield. Energy would be purchased at a fixed heat rate of 8.100 Btu/kWh and at the cast of gas, based upon the Monthly Contract Index for natural gas at the California border published monthly in Gas Daily." Consequently, the cost of energy would fluctuate monthly with the cost of gas. If the agreement was in effect today, the current estimated cost of power would be 20 mills/kWh. MSCC's facility has a nameplate rating of 230 MW. The plant has been operating since 1989 at an average availability factor of 97.53 percent. 6urrently MSCC sells 200 MW around the clock to Southern California Edison Company, and sells 30 MU on -peak to PG&E. This offer compares very favorably to the existing Non -Peak Finn Energy Purchase Agreement NCPA has currently i n effect with PG&E, The agreement with PG&E i s significantly more expensive (approximately 39 mills/kWh versus 20-23 mills/loth). This differential i s expected to continue since PG&E's price i s driven by the gas market as well. Lodi will not obtain sufficient energy pursuant to the agreement to meet a I I of i t s energy requirements, however, the energy received w i l l be a t a cost savings. Lodi participation percentage in this project is 31.389%. The estimated savings frcxm the proposed agreement for Lodi would be approximately $300,000 per year based on estimates of the average annual cost of off-peak economy energy available to NCPA. Termination would not occur before 1935; after that, the contract would be evergreen with notice. FUNDING: Not applicable. t Henry .T. Pile; Elec. Utility Director c: City Attorney APPROVE THOMAS A. PARSON ......,... city keeiromw CCMIDWAY/CO.COM CC-' MIDWAY -SUNSET THIRD PHASE AGREEMENT 7his Agreement, dated as cf 1992, by and among the Northern California Power Agency, a joint powers agency cF the State cf California (NCPA) and the members cf NCPA which have executed this Agzeemer•t (Participant cr Participants), is entered into on the basis cf the following RECITALS A. NCPA's Resource Plan shows that it would be earrm cal for NCPA and its members to purdse additional off-peak energy. B. NCPA has therefore entered into an agreement, dated 1992 (Midway -Sunset Power Purchase Agreement; under which it will purchase such energy from the Midway -Sunset Cogeneration Company (Midway -Sunset), which owns and operates a cogeneration facility in Fellows, California. C NCPA and the Partidpants wish to enter into this Agreement to provide for the sale by NCPA to, and ft purchase by, those Participants of tine off-peak energy that Midway -Sunset has agreed to sell to NCPA under the Midway -Sunset Power Purchase Agreement. NOW THEREFORE, NCPA and bhe Participants hereby enter into this .'AGREEMENT Section 1. Qeflitions. The following terms shall, when used in this Agreement, have the following meanings: EXECUTION COUNTFRPART W. 1,1 "OperatingEntity" means a Participant or grro3P cf Partidpanks who schedule their combined Participation Percentages as a single entity. 12 " rotect" means the purchase cf power from Midway -Sunset by NCPA under the Midway -Sunset Power Purchase Agreement and any amendments thereto. 1.3 "ParticipationPercentage" means, with respect to each Participant, the percentage cf the tttL capacity and associated energy cf the Pmjec t to which such Participant is entitled pursuant to ft terns cf this Agreement. The Participation Percentage for each Participant shall be the percentage suet forth opposite ft name cf such Participant in Appendix A here, as such Appendix A may be amended from time to time in accordance with this Agreement. 1A "Partidpant" means an NCPA member which has executed this Agreement and a Participant's successor in interest. 1.5 "Midway -Sunset Power Purchase Agreement" means the agrett betweenNCPA and Midway -Sunset referred to in the second recital hereinabove. Section 2. P �L=s&. The p u rpose cf this Agreement is to provide for tie sale by NCPA and the purchase by the Participants cf the energy purchased by NCPA under the Midway -Sunset Power Purchase Agreement, to authorize NCPA as agent for the Participants to engage in activities related to that basic purpose and to spedfy the rights and obligations cf NCPA and of the Participants with respect to the Project. k !. 3.1 NCPA will sell to each Partidpant, and each Participant will purchase from NCPA, Project Off Peak Net Energy, as that tin is defined in 2 EXECUTION COUNTERPART Awe the Midway -Sunset Power Purchase Agreement, equal to the product cf the Participation Percentage of that Partidpant and the total Off -Peak Net Energy purchased by NCPA under that Agreement. Each Participant may also, at its option, elect to purchase fmm NCPA a portion of the additional energy that NCPA is entitled to purchase fmn Midway -Sunset under section 9.4 cf the Midway -Sunset Power Purchase Agreement equal to the product of the Partidpation Percentage cF that Partidpant and the tctal additional energy NCPA is entitled to purchase under section 9A 3 21 NCPA shall advise ea ch Operating Entity at the times prescribed in the service schedules appended hereto what Midway - Sunset's incremental cost cF enen3Y will be during the following day. Each Operating Entity shall, prior to the tures prescribed in tri service schedules, schedule Off -Peak Net Energy equal to the total of the Participation Percentages cf the Partiapants for which it is scheduling and such of the additional energy referred to in section 31 as those Partidpants are entitled tom, and elect to,purchase. The schedule shall be firm thereafter unless changed by mutual agreement between the dispatchers or schedulers of Midway - Sunset, NCPA, and the C7eratsng Eb ity. Each Operating Entity shall notify NCPA cf all schedule changes. Upon agreement for the transfer of energy between Partidpants, pursuant to section 8 cf this Agreement, one Operating Ehdty may schedule the energy of the Participant or group of Partidpants of another Operating Ebtity, up to the combined Partidpation Percentages of the transferor and transferee Partidpants. 3.2.2 Deliveries shall be made at the Point of Delivery specified in the Midway -Sunset Power Purchase Agreement. Deliveries shall be deemed to be made during the hours and in the amounts so scheduled; provided that if scheduled deliveries are interrupted or curtailed as the result of a transmission curtailment, or a Force Majeure or Forced Outage as defined in section 13 of the Midway -Suet Power Purchase Agreement, schedules cf such energy shall be reduced in proportion to the amounts scheduled by each EXECUTION COUNTERPART Operating Entity to reflect the actual amounts of enemy delivered; provided that if the interruption or curtailment lasts for m=e than 24 hours the nedactim shall be in proportion to the Partiapation Percentages of the Partiapants. Section 4. Rehaed NICPA Acffxftz. NCPA may engage in other activities intended to enable the Participants to Wlithe Midway -Sunset Power Purchase Agreement as efficiently and economically as possible. NCPA shall exercise the authority granted to it by oris section in accordance with the provisions cf sec: -tion 10 cf oris Agreement. Section 5, charm hu EraW . The rates and charges that each Participant will pay NCPA for capaaty and assoo ted energy supplied it.nde-r thds Agreement shall be sufficient to permit NCPA to recover a I I costs, expenses and obligations related to the Proj-ed. Those rates and charges shell incorporate the rates and charges that NCPA is obligated to pay to Midway -Sunset for the energy supplied by Midway -Sunset under the Midway -Sunset Power Purchase Agreement, and shall also be sufficient to reimburse NCPA for transmission losses and charges for transmission services if such reimbursement is appropriate. 6.1 Prior to the beginning of each NCPA fiscal year for which no budget has been adopted, the NCPA Commission will adopt a budget for such fiscal year cr years for costs and expenses relating to the Project. The NCPA Commission may adopt budgets for more than one fiscal year. The budget shall include the following two categories cf costs and expenses: (a) the charges that NCPA estimates that it will be obligated to pay to Midway -Sunset for Project power, and (b) all other costs and expenses reasonably related to the Project. NCPA shall promptly give notice to each Participant of its projected share of each of those two categories cf costs and expenses. EXECUTION COUNTERPART r) 6.2 Monthly billing statements prepared by NCPA shall ie sent to each Participant showing the ParficipanVs share of costs and other charges payable pursuant to this Agreement for each billing period. Such statements shall separately set forth any credit or debit adjustments. 63 Amounts shown on each billing statement are due and payable thirty (30) days after the date cf the billing statement except that any amount due on a Friday, holiday or weekend may be paid on the closest following workday. 6A Any amount due and not paid by a Participant shallbear interest from the due date until paid at the annual rate established by the „ S Commission of NCPA at the time cf adoption cf the then most recent budget. If a Participant questions or disputes the corre�ess cf any billing statement by NCPA, it shall pay NCPA the amount claimed when due and shall within thirty (30)days cf the receipt cf such billing statement request an explanation from NCPA. F the bill is determined to be incorrect, NCPA will issue a corrected bill and refi xr4 any amount which may be due the Participant which refund shall bear interest from the date NCPA received payment until the date ofthe refund at an annual rate to be established by the Commission cf NCPA at ft time of adoption of the then most recent annual budget. If NCPA and the Participant fail to agree on the correctness cf a bill within thirty (30) days after the Participant has requested an explanation, the parties shall promptly submit the dispute to arbitration under section 1280 et seq. cf the California Code cf Civil Procedure. 7.1 Upon failure cf any Participant to make any payment in full wren due under this Agreement, NCPA shall make written demand upon such Participant, and if payment is not made within 30 days from the date of such demand, the failure to make payment shall constitute a default. EXECUTION COUNTERPART 7.2 Upm the default of any Participant, NCPA (a) may b"te the provisions cf dAs Agreement insofar as ft Agreement entitles the defaultingParticipantto its Participation Percentage of Project energy, and (b) shall use its best efforts to sell and transfer for the Participant's account all cr a portion of the Participant's Participation Percentage cf Project energy. When making such sales and transfers NCPA shall allow all Participants and then other NCPA member entities the same rights of first refusal that are provided for in section 8 of ttris Agreement. Notwithstanding such sale, transfer cr termination, the ob 1 i ga tions c£ the defaulting Participant under this Agreement shall continue in full force and effect except that such obligations shall be discharged to the extent that NCPA receives payment from a purchaser cr transferee cf the defaulting Participant's Partidpation Percentage in Project energy. 73 Upm ft default cf any Participant, and except as transfers are made pursuant to section S, (i) the Participation Percentage cf each nondefaulting Participant shall be automatically increased for the remaining term of this Agreement pro rata with those cf the other nondefaulting Partidpants, and (ii) the defaulting Participant's Partidpation Percentage in the output cf the Project energy shall (but only for p ur poses of computing the respective Participation Percentages cf the nondefaulting Participants) be reduced correspondingly. The fact that other Participants have increased their obligations to NCPA according to this sectim shall not relieve the defaulting Participant cf its liability under this Agreement, and any Participant increasing its obligation shall have a right of recovery from the defaulting Participant to the extent cf its increase in obligation. Section S. lmagfers of Rimy Participants . Each Partidpant has the right to make transfers, sales, assignments and exchanges (collectively "transfers") of Project energy and rights thereto upon ninety days advance written notice to NCPA cr such lesser period of notice as NCPA may be able to accept. If the proposed transfer is to an entity that is not a Participant, all Participants must be given the right cf first refusal in proportion to their Participation Percentages. Y the proposed transfer is to an entity that is not a 6 EXECUTION COUNTERPART member of NCPA, all NCPA members shall have the right of first refusal in proportion to the amounts those members contribute to the NCPA general fund, NCPA shall, if requested to do sD by a Participant, use its best efforts to assist that Participant in making such transfers ofPrcj ect energy on behalf cf the Partiapant No transfer shall relieve a Participant cf any cf its obligations under this Agreement except to the extent that NCPA receives payment cf these obligations from a transferee. Section 9. JffJdxkIwaI by Pad&fV=. No Participant may withdraw from this Agreement. However, NCPA will use its best efforts to assist any Partiapant that wishes to transfer a I I or any portion of its rights pursuant to section 8 above. 10.1 . Actions of the NCPA Commission relating to this Agreement or to the Rmjact shall be taken at regular cr special meetings cf the NCPA Commissionbut shall be partiapated in only by those Commissioners, cr their designated alternates, who represent Participants. 10.2 Quuum- A quorum at NCPA Commission meetings for purpcses cf acting upon matters relaang to this Agreement or to the Project shall consist cf Commissioners, cr their designated Alternates, representing at le2st two Participants having a combined majority in interest based on Partiapation Percentages. 10.3 j(ofiruz. Voting by representatives of Participants on matters relating to this Agreement cr to the Project shall be on a one member/ane vote basis, with a majority vote required for action; however, upon request cf any Participant representative, the voting on an issue shall be by Participation Percentage with a 65% cr more favorable vote necessary to carry the action. The 65% required by the preceding sentence shall be reduced by the amount that the Participation Percentage of any Participant exceeds 35%, but shall rut be reduced below a majority in interest. EXECUTION COUNTERPART 10.4 Resriew of VorQ, Any decision related to this Agreement cr to the Project taken by the a ffi i t i v e vote cf Partidpants holding Participation Percentages cf less than 65% can be reviewed and revised if a Participant gives notice cf intention to seek such review and revision to each cf the other Participants within ten days after receiving written notice of such action. If such notice cf intention io eek review is given, any action taken specified in the notice shall be nullified unless the authorized representatives cf Participants holding at least 65% cf the total Participation Percentages vote in favor t n_ f at a regular cr specially called meeting cf the NCPA Commission. The 65% requiredby the preceding sentence shall be reduced by the amount that the Participation Percentage of any Participant exceeds 35%, but shall not be reduced below a majority in interest. Section 10. Ya t; on Termination of the JdWav Sunset Power Section 3 cF the Midway -Sunset Power Purchase Agreement provides that the Agreement shall continue to be in effect for each wen and odd twoyear period subsequent to 1995 unless a notice to terminate is issued by either Party by April 15 cf any even year beginning in 1994. Accordingly, on cr before March 15 of each even numbered year beginning in 1994, representatives cf the Partiapants shall vote at a Commission meeting as to whether a notice to terminate the Midway -Sunset Power Purchase Agreement shall be issued before April 15 cf that year. Notwithstanding any other provision cf this Agreement, such a notice shall be issued unless (a) the representatives cf the Partidpants unanimously vote not to issue the notice of termination, or (b) on cr before April 15 of that year the rights of all Partidpants who have voted to issue the notice of termination are transferred, pursuant to Section 8 of this Agreement, to entities that have agreed to assume the obligations cf those Participants. Section 11. Tim and TermiWfiQp . Mis Agreement shall riot take effect until it has been executed and delivered to NCPA by Participants the Participation Percentages of which, in the aggregate, equal at least 83%.The NCPA members listed on Appendix A shall have 45 days following written EXECUTION COUNTERPART I - - notice of the effective date iD execute and deliver counterparts cf this' Agreement to NCPA. if any NCPA member listed on Appendix A fails to execute and deliver this Agreement within such 45 days, unless otherwise provided by the Participants, the Participating Percentages cf su, h member or members shall be spread among the Participants in proportion to ftdr Participation Percentages. The term cf this Agreement shall continue until the expiration cf the Midway -Sunset Power Purchase Agreement. This Agreement shall not be subject to termination prior to the expiration of its teinby any party under any circumstances, whether based upon the default cf any other party under this Agreement or otherwise, except as specifically provided herein. Section 12. Member Servi t. This Agreement is a service schedule and a third phase agreement and shall be deemed incorporated into the Member Service Agreement that each Partiapant has executed cr successor agreement to the Member Service Agreement. This Agreement shall be construed as constituting the more specific terms governing the general relationship between the parties set out in that Member Service Agreement. Section 13. figNeW OblifAdon' No Partiapant shall be liable under this Agreement for the obligations cf any other Partidpant, except as provided in section 7of this Agreement. Each Participant shall be solely responsible and liable for performance cf its obligations under this Agreement and fix the maintenance and operation cf its respective properties. The obligation cf each Participant to make payments under this Agreement is a several obligation and not a joint obligationwith those cf the other Participant,, except as provided in section 7cf thus Agreement. Section 14. . This Agreement may be amended only by a written instrument executed by NCPA and the Participants or their successors with the same formality as this Agreement. ZI MxECUrION Section 15. SomraWilix. In the event that any cf the teens, covenants or conditions of this Agreement shall be held invalid, NCPA and the Participants intend that all other terms, covenants and conditions and theii application shat not be affected thereby, but shall remain in force and effect unless a court holds that such provisions are not severable faun al I other provisions cf fts Agreement Section 16. Governing i aw . This Agreement shall be interpreted, goverr,,--d by and construed under the laws of the State cf California. W o n 17. Countet:2a rts, This Agreement may be executed in several counterparts, al I cr any of which shall be regarded for all purposes as one original and shall aonstitube and be but one and the same instrument. W o n I& I udiigs The headings to the sections in this Agreement are intended for convenience only and not for the purpose cf interpreting the provisions cf this Agreement. Section 19. Any notice, demand or request required of authorized by this Agreement to be given to any Partidpant cr to NCPA shall be given in writing and shall either be personally delivered to the Partidpant or transmitte to the Participantby regular mail at the address designatedby the Participant. The designation cf such address may be changed at any time by written rnti:ce. Section 24. Nb Waivers. No waiver cf performance under tips Agreement shall be effective unless given by the Commission. Any such waiver by the Commission in any particular instance shall not be deemed a waiver with respect to any subsequent performance. Section 21. Wamnly of Autboxity . Each Partidpant which has executed and delivered this Agreement represents and warrants that it has agreed to be bound by all cf the terms, covenants and conditions cf this 10 EXECUTION COUNTERPART Agreement and has acted vdth all cf the requisite capacity and authority and the approval cf its goveming body. IN W INFO WHERBOF, each Participant has by the signature cf its duly authorized representatives shown belaw, executed and delivered a counterpart of this Agreement NORTHERN CAUIPORNIA CI TY CF ALAMEDA POWER AGENCY By:. By: � Date: Date: CITY CF HEALDSBURG MY OF LODI By; By: By: By:. Date: Date: CITY OF LQMPOC CI1Y OF ROSEVILLE By: By: By: By: Date: Date: 11 EXECUTION COUNTERPART CrrY OF UlaAH BT. Date-, 12 EXECUTION COUNTERPART APPENDDC A MIDWAY -SUNSET THIRD PHASE AGREEMENT PARTICIPATION PERCENTAGES Alameda Healdsburg Lodi LOMPoc Roseville Ukiah 0 26.677% 2.367% 31.389% 2.667% 33.867% IW -000% EXECWTION COUNTERPART RESOLUTION NO. 92-93 A RESOLUTION OF THE LODI CITY COUNCIL APPROVING THE MIDWAY -SUNSET THIRD PHASE AGREEMENT AND AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE THE AGREEMENT as�raacssearxsassaxssas�e:rama_x��aaxassaar_ wrssxT :c=rcasaaa=s;xseaes�ea==mr BE IT RESOLVED by the City Council of the City of Lodi, California that the City Manager and City Clerk are hereby authorized to execute for and on behalf of the City of Lodi. California, the attached Third Phase Agreement between Midway -Sunset Cogeneration Company and the Northern California Power Agency, which was duly presented to the City Council and is hereby approved. Dated: May 20, 1992 aaaaasraxsxaxtac-�s=nna=aaransn=sranx==_ran=axaxcaaearxasoas�asaaa:==== State of California ) ) ss. City o f Lodi ) 1, Alice M. Reimche, the duly appointed and qualified City Clerk of the City of Lodi, California do hereby certify that the foregoing is a true, accurate, and complete copy of a resolution duly passed and adopted at a regular meeting of the City Council of the City of Lodi, Caiifornia. held on May 20, 1992 by the following vote; Ayes: Council Members - Noes: Council Members - Absent: Council Members - Alice M. Re'imche City Clerk 92-93 R£S9293/TXTA.OIV NCPA A Pubic Aqw y Northern California Power Agency IN cwy W*. RoWVft c.wwr" wan MICHAELW. WDONALD (916)781-4223 May 8, 1992 TO Mr. Don Rushton, City cfAlameda Mr. Bill Duarte, City of Healdsburg Mr. Henry Rim, City cf Lod i Mr. Larry McPherson, City of Lompoc Mr. Mike Brozo, City of Roseville Mr. Darryl , City of Uld ah suiaj EGT: Midway -Sunset Off-PaakPower Purchase`Third P ase Agreement An execution copycf the subject Agreement was recently provided to you. As we have discussed, NCPA's intent has been to begin deliveries June 1, 1991 In the event you are unable to obtain CUi Lound approval by June 1,I AM seek a one month agreementwith Midway - Sunset to begin deliveries June 1,based on the power purchase agreement. I understanu June 3 is the latest date for expected City Council approval, so it is not too significant if Midway -Sunset docs not agree. I have enclosed for your records the unexecuted final copy of the Midway -Sunset Off -Peak Power Purchase Agreement. Upon approval by your City Councils, please send an executed copy of the Third Phase Agreement and approving resolution to the attention of Ms. Gail Sipple. (loos she has received the documents from & participants, she will forward a fully executed copy to your respective City Clerk along v� a copy for your records. By copy of flus letter, I L -n also forwarding a copy of the Third Phase Agreement to your Chi Clerk for processing. Thankyou for your attention to this matter. THOMAS C. GREEN Power Contracts Engineer TGlct Enclosure cc: Gail Sipple,- City ippleCity Clerks of Participating Members r+ MIDWAY -SUNSET THIRD PHASE AGREEMENT This Agreement, dated as cf 1992, by and among the Northern California Power Agency, a joint powers agency of the State of California (NCPA) and the members of NCPA which have executed this Agreement (Participant or Participants), is entered into on the basis of the following RECITALS: A. NCPA's Resource Plan shows that it would be economical for ' NCPA and its members to purchase additional off-peak energy. R. NCPA has therefore entered into an agreement, dated 1992 (Midway -Sunset Power Purchase Agreement) under which it will purchase such energy frnn the Midway -Sunset Cogeneration Company @hdway-Sunset), which ovwly and operates a cogeneration faality in Fellows, California. C NCPA and the Participants wish to enter into this Agreement'to provide for the sale by NCPA to, and the purchase by, those Participants cE the off-peak energy that Midway -Sunset has agreed to sell to NCPA under the Midway -Sunset Power Purchase Agreement. NOW THEREFORE , NCPA and the Participants hereby enter into this AGREEMENT Section 1. lkfinijiQw. The following terms shall, when used in this Agreement, have the following meanings: EXECUTION COUNTERPART i—N 1.1 "Operating Entity" means a Participant or group cf Participants who schedule their combined Participation Percentages as a single entity. 1.2 "Project" means the purchase c£ powe1' from N idwa�.Sunset by NCPA under the Midway -Sunset Power Purchase Agreement and any amendments thereto. 1.3 "Participation Percentage" means, with respect to each Participant, the percentage cf the total capacity and associated energy CC the Project to which such Participant is entitled pursuant to the terms of this Agreement. The Partidpation Percentage for each Participant shall be the percentage set forth opposite the name of such Participant in Appendix A hereto, as such Appendix A may be amended from time to time in accordance with this Agreement. 1.4 "Fardcipant" means an NCPA member which has executed this Agreement and a Participant's successor in interest. 1.5 "Midway -Sunset Power Purchase Agreement" means the agreement between NCPA and Midway -Sunset referred to in the second recital hereinabove. Section 2. p W.. The purpose of this Agreement is to provide for the sale by NCPA and the purchase by the Participants of the energy purchased by NCPA under the Midway -Sunset Power Purchase Agreement, to authorize ?,?C:'A as agent for the Participants to engage in activities related to that basic purpose and to specify the rights and obligations of NCPA and of the Participants with respect to the Project. 3.1 NCPA will sell to each Participant, and each Participant -will purchase from, NCPA, Project Off Peak Net Energy, as that term is defined in 2 EXECUTION COUNTERPART the Midway -Sunset Power Purchase Agreement, equal to the product cf the Participation Percentage cf that Participant and the total Off -Peak Net Energy purchased by NCPA under that Agreement. Each Participant may also, at its option, elect to purchase from NCPA ,1 portion of the additional energy that NCPA is entitled to purchase from Midway -Sunset under section 9.4 of the Midway -Sunset Power Purchase Agreement equal to the product of the Participation Percentage of that Participant and the total additional ener;v NCPA is entitled to purchase under section 9.4. 3.2.1 NCPA shall advise each Operating Entity dt the times prescribed in the service schedules appended hereto what Midway - Sunset's incremental cost cf energy will be during the fdUadM day. Each Operating >dty shall, prior to the times prescribed in those service schedules, schedule Off -Peak Net Energy equal to the total cf the Participation Percentages cf the Participants for which it is scheduling and such cf the additional energy referred to in section 3.1 as those Partidpants are entitled to, and elect to, purchase. The schedule shall be firrz thereafter unless changed by mutual agreement between the dispatchers or schedulers cf Midway- Sunset, NCPA, and the Operating Entity. Each Operating Entity shall notify NCPA of all schedule changes. Upon agreement for the transfer cf energy between Partidpants, pursuant to section 8 of tris Agreement, one Operating Entity may schedule the energy of the Participant or group cf Partidpants of another Operating Entity, up to the combined Participation Percentages cf the transferor and transferee Participants. 3.2.2 Deliveries shall be made at the Point of Delivery specified in the Midway -Sunset Power Purchase Agreement. Deliveries shall be deemed to be made during the hours and in the amounts so scheduled; provided that if scheduled deliveries are interrupted or curtailed as the result of a transmission curtailment, or a Force Majeure or Forced Outage as defined in section 13 of !he Midway-$=me?Power Purchase Agreement, schedules of such energy shall be reduced in proportion to the amounts scheduled by each 3 EXECUTION COUNTERPART Operating Entity to reflect the actual amounts cf energy delivered; Provided that if the interruption or curtailment lasts for more than 24 hours the reduction shall be in proportion to the Participation Percentages of the Partiapants. Section 4. Related NCPA Ac . NCPA may engage in other activities intended to enable the Partidpants to utilize the Midway -Sunset Power Purchase Agreement as effiaently and economically as possible. NCPA shall exercise the authority granted to it by this section in accordance with the provisions cf section 10 of this Agreement. Section 5. Rates and Cbarw for Project Power. The rates an&charges that each Partiapant will pay NCPA for capacity and associated energy supplied under this Agreement shall be suffiaent to permit NCPA to recover all costs, expenses and obligations related to the Project. Those rates and charges shall incorporate the rates and charges that NCPA is obligated to pay to Midway -Sunset for the energy supplied by Midway -Sunset under the Midway -Sunset Power Purchase Agreement, and shall also be suffiaent to reimburse NCPA for transmission losses and charges for transmission services if such reimbursement is appropriate. 6.1 Prior to the beginning cC each NCPA fiscal year four which no budget has been adopted, the NCPA Commission will adopt a budget for such fiscal year or years for costs and expenses relating to the Project. The NCPA Commission may adopt budgets for more than one fiscal year. The budget shall include the following two categories of costs and expenses: (a) the charges that NCPA estimates that it will be obligated to pay to Midway -Sunset for Project power, and (b) all other costs and expenses reasonably related to the Project. NCPA shall promptly give notice to each Participant of its projected share of each cf those two categories cf costs and expenses. EXECUTION COI3NTERPART 6.2 Monthly billing statements prepared by NCPA shall b� sent to each Participant showing the Partidpant's share cC costs and other charges payable pursuant to tris Agreement for each billing period. Such statements shall separately set forth any credit or debit adjustments. 6.3 Amounts shown on each billing statement are due and payable ttnrty (30) days after the date of the billing statement except that any amount due on a Friday, holiday or weekend may be paid on the closest following workday. 6.4 Any amount due and not paid by a Participant shall bar interest from the due date until paid at the annual rate established by the Commission of NCPA at the lime cf adoption cf the then most recent budget. If a Partidpant questions or disputes the correctness cc any billing statement by NCPA, it shall pay NCPA the amount claimed when due and shall vdthn ditty (30) days cf the receipt of such billing statement request an explanation from NCPA. Y the bill is determined to be incorrect, NCPA will issue a co=ectedbill and refund any amount which may be due the Partidpant vdAch refund sbaU bear interest from the date NCPA received payment until the date cf the refund at an annual rate to be established by the Commission of NCPA at the time cf adoption of the then most recent annual budget. If NCPA and the Participant fail to agree on the correctness CC a bill within thirty (30) days after the Partidpant has requested an explanation, the parties shall promptly submit the dispute to arbitration under section 1280et seq, of ',,e California Code cf Civil Procedure. 7.1 Upon failure of any Participant to make any payment 'in full when due under this Agreement, NCPA shall make Written deman 1 upon such Partidpant, and if payment is not made within 30 days from !rkA alite of such demand, the failure to make payment shall constitute a d0ii , , E . 5 EXECUTION COUNTERPART 7.2 Upon the default of any Participant, NCPA (a) may terminate the provisions cf this Agreement insofar as the Agreement entitles the defaulting Participant to its Participation Percentage cf Project energy, and (b) shall use its best efforts to sell and transfer for the Participant's account all or a portion of the Participant's Participation Percentage cf Project energy. When making such sales and transfers NCPA shall allow all Partidpants and then other NCPA member entities the same rights of first refusal that are provided for in section 8 of this Agreement. Notwithstanding such sale, transfer or termination, the obligations of the defaulting Participant under this Agreement shall continue in full force and effect except that such obligations shall be discharged to the extent that NCPA receives payment from a purchaser cr transferee of the defaulting Participant's Participation Percentage in Project energy. 7.3 Upon the default cf any Participant, and except as teansfers are made pursuant to sect im 8, (i) the Partidpation Percentage of each nondefaulting Partidpant shall be automatically increased for the remaining term of this Agreement pro rata with those of the other nondefaulting Participants, and (ii) the defaulting Participant's Partidpation Percentage in the output of the Project energy shall (but only for purposes of computing the respective Participation Percentages of the nondefaulting Participants) be reduced correspondingly. The fact that other Participants have increased their obligations to NCPA according to this section shall not relieve the defaulting Partidpant cf its liability under this Agreement, and any Participant increasing its obligation shall have a right of recovery from the defaulting Partidpant to the extent of its increase in obligation. Section 8. Ransfers of Ilighb by Participants. Each Partidpant has the right to make transfers, sales, assignments and exchanges (collectively "transfers") of Project energy and rights thereto upon ninety days advance written notice to NCPA or such lesser period of notice as NCPA may be able to accept. If the proposed transfer is to an entity that is not a Partidpant, all Participants must be given the right of first refusal in proportion to their Participation Percentages. If the proposed transfer is to an entity that is not a 6 EXECUTION COUNTERPART member of NCPA, all NCPA members shall have the right of first refusal in proportion to the amounts those members contribute to the NCPA general fund. NCPA shall, if requested to do so by a Partidpant, use its best efforts to assist that Participant in making such transfers of Project energy on behalf of the Participant. No transfer shall relieve a Participant cf any of ;� bbl;rations under this Agreement except to the extent that NCPA receives payment cf these obligations from a transferee. Section 9. No Partidpant may withdraw from this Agreement. However, NCPA will use its best efforts to assist any Participant that wishes to transfer all or any portion cf its rights pursuant to section 8 above. Section 10. NCPA G=overnance of the Project. 10.1 . Actions cf f NCPA C6mmission relating to this Agreement or to the Project shall be taken at regular or special meetings cf the NCPA Commissionbut shall be partidpated in only by those Commissioners, or their designated alternates, who represent Participants. 10.2 Qom. A quorum at NCPA Commission meetings for purposes cf acting upon matters relating to this Agreement or to the Project shall consist cf Commissioners, or their designated Alternates, representing at least two Participants having a combined majority in interest based on Participation Percentages. 10.3 Voting. Voting by representatives of Par6cipant1� on matters relating to this Agreement or to the Project shall be on a one member/one vote basis, with a majority vote required for action; however, upon request cf any Participant representative, the voting on an issue shall be by Participation Percentage with a 65% or more favorable vote necessary to ca rTY the action. The 65% required by the preceding sentence shall be reduced by the amount that the Participation Percentage of any Participant exceeds 35%, but shall not be reduced below a majority in interest. EXECUTION COUNTERPART A 10.4. cf v . Any decision related to this Agreement or to the Project taken by the affirmative vote cf Participants holding Participation Percentages of less than 65% can be reviewed and revised if a Participant gives notice of intention to seek such revi v and revision to each of the other Participants within ban days after rece:, ' 6 written notice of such action. If such notice of intention to seek review is given, any action taken specified in the notice shall be nullified unless the authorized representatives cf Participants holding at least 65% of the total Participation Percentages vote in favor thereof at a regular or specially called meeting of the NCPA Commission The 65% required by the preceding sentence shall be reduced by the amount that the Participation Percentage of any Partidpant exceeds 35%, but shall not be reduced below a majority in interest. Section 10. Voting on TeMinatim of the b&dway- sMt P w r Sectim 3 of the Midway -Sunset Power Purchase Agreement provides that the Agreement shall continue to be in effect for each even and odd two year period subsequent to 1995 iutless a notice to termina to is issued by either Party by April 15 of any even year beginning in 1994. Accordingly, on or before March 15 cf each even numbered year beginning in 1994, representatives cf the Partidpants shall vote at a Commission meeting as to whether a notice to terminate the Midway -Sunset Power Purchase Agreement shall be issued before April 15 of that year. Notwithstanding any other provision cf this Agreement, such a notice shall be issued unless (a) the representatives of the Participants unanimously vote not to issue the notice cf termination, or (b) on or beforeril 15 of that year the rights of all Participants who have voted to issue theltice of termination are transferred, pursuant to Section 8 cf this Agreemeht, to entities that have agreed to assume the obligations of those Participants. Section 11. Tear► and Termination. This Agreement shall riot take effect until it has been executed and delivered to NCPA by Participants the Participation Percentages of which, in the aggregate, equal at least 83%.The NCPA members listed on Appendix A shall have 4 5 days following w ri tten 8 EXECUTION COUNTERPART A notice of the effective date to execute and deliver counterparts cC this Agreement to NCPA. If any NCPA member listed on Appendix A fails to execute and deliver this Agreement within such 45 days, unless otherwise provided by the Participants, the Partidpating Percentages of such member or members shall be spread among the Partidpants in proportion to their Partidpation Percentages. The term of this Agreement shall continue until the expiration cC the Midway -Sunset Power Purchase Agreement. This Agreement shall not be subject to termination prior to the expiration of its term by any party under any circumstances, whether based upon the default cC any other party under this Agreement cr otherwise, except as specifically provided herein. Section 12. Member Service Agreement. This Agreement is a service schedule and a third phase agreement and shall be deemed incorporated into the Member Service Agreement that each Participant has executed cr successor agreement to the Member Service Agreement. This Agreement shall be construed as constituting the more specific terms governing the general relationship between the parties set out in that Member Service Agreement. Section 13. Several Qbligation. No Participant shall be liable under this Agreement for the obligations of any other Participant, except as provided in section 7 of this Agreement. Each Participant shall be solely responsible and liable for performance of its obligations under this Agreement and for the maintenance and operation of its respective properties. The obligation of each Participant to make payments under this Agreement is a several obiigation and not a joint obligation with those of the other Participants. except as provided in section 7 cf this Agreement. Section 14. Amendments, This Agreement may be amended 'only by a written instrument executed by NCPA and the Participants or their successors with the same formality as this Agreement. 9 EXECUTION COUNTERPART section 15. Seymbility,. In the event that any of the terms, c6venants cr conditions of this Agreement shall be held invalid, NCPA and the Participants intend .hat all other terms, covenants and conditions and their application shall not be affected thereby, but shall remain in force and effect unless a court holds that 'h provisions are not severable from all other provisions cf this Agreement. Section 16. GMming Law. This Agreement shall be interpreted, governed by and cowtnied under the laws of the StabB cf California. W o n 17. C„ ountemarts. This Agreement may be executed in several counterparts, all or any cC which shall be regarded for all purposes as one original and shall constitute and be but one and the same instrument. Section 18, Hgadingq The headings to the sections in this Agreement are intended for convenience only and not for the purpose cf interpreting the provisions cf this Agreement. Section 19. NQbw Any notice, demand or request required br authorized by this Agreement to be given to any Participant or to NCPA shall be given in writing and shall either be personally delivered to the Participant or transmitted to the Participant by regular mail at the address designated by the Participant. The designation of such address may be changed at any time by written notice. Section 20, No IYaivei-s. No waiver of performance under tjis Agreement shall be effective unless given by the Commission. Any such waiver by the Commission in any particular instance shall not be deemed a waiver with respect to any subsequent performance. Section 21. jMaffanty of AuthQdl . Each Participant which has executed and dehvered this Agreement represents and warrants that it has agreed to be bound by all of the terms, covenants and conditions of this 10 EXECUTION CCU?4TERPART 00%) Agreement and has acted with all of the requisite capacity and authority and the approval of its governing body. IN VVrTNES.- WHEREOF, each Participant has by the signature'd its duly authorized representatives shown below, executed and delivered a counterpart of this Agreement. NORTHERN CALIFORNIA POWER AGENCY By.- Date; y: Date: CITY OF HE,ALDSBURG By* BY: Date: • s� 8y: By: Date: CITY OF ALAMEDA By: Date; CITY OF LODI By: By: Date: CITY OF ROSh"iTZLLE By: Date: 11 EXECUTION COUNTERPART im CITY OF UIQAH Dr.-- Dr►� • 12 EXEC'UMN COUNTERPART APPENDDC A MIDWAY-SUNSET THIl2D PHASE A PARTICIPATION PERCEMAGES Alameda Healdsb- sg Lodi Lompoc Roseville Ukiah 26.6779'6 2.3676/6 31.389`/d 2.6676/6 33.86no 3=% 100.000% EXECUTION COUNTERPART RESOLUTION NO. 92-93 A RESOLUTION OF THE LODI CITY COUNCIL APPROVING THE MIDWAY -SUNSET THIRD PHASE AGREEMENT AND AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE THE AGREEMENT _-__..____sxxsxxxssxxxxxx_=v==xs=aaaxcax=saxxaxassxax assaxavaxasa ax asa xx BE IT RESOLVED by the City Council of the City of Lodi, California that the City Manager and City Clerk are hereby authorized to execute for and on behalf of the City of Lodi, California, the attached Third Phase Agreement between Midway -Sunset Cogeneration Company and the Northern California Power Agency, which was duly presented to the City Council and is hereby approved. Dated: May 20, 1992 State of California ) ) ss. City of Lodi ) I, Alice M. Reimche, the duly appointed and qualified City Clerk of the City of Lodi, California do hereby certify that the foregoing is a true, accurate, and complete copy of a resolution duly passed and adopted at a regular meeting of the City Council of the City of Lodi, California, held on May 20, 1992 by the following vote; Ayes: Council Membeis - Hinchman, Pennino, Sieglock and Pinkerton (Mayor) Noes: Council Members - None Absent: Council Members - Snider (Low Alice M. Rei, the City Clerk 92-93 RES9293/TXTA.02J